Page 1


1 Thursday, 23rd November 2000

2 (9.34 am)

3 Opening Submissions by LORD GIFFORD (continued)

4 LORD GIFFORD: Sir, before resuming the

5 thread of my opening, may I mention two matters: first

6 is a matter which follows from the application that we

7 had on Tuesday on behalf of Private 027. My

8 instructing solicitor Mr McCourtney has spoken directly

9 with Mr Don Mullan, journalist, who has informed him

10 that he was responsible for a broadcast after the

11 hearing on 27th April 1999 on the Irish television

12 channel TV3, in a programme called "Twenty Twenty

13 Vision", in which he reported on the hearing of 27th

14 April and showed to the viewers the page of the

15 transcript taken from the web in which the real name of

16 Private 027 was printed and his name was verbally

17 mentioned.

18 We are seeking a copy of that broadcast and

19 will provide it to the Tribunal as soon as we have it.

20 That is in addition to what we are also trying to

21 obtain, which is a written article also giving the

22 name, that is just to assist you in knowing to what

23 extent there was some broadcast following that hearing.

24 The second preliminary matter is to note with

25 thanks the information which has been provided to us


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1 this morning about the exact role of DS10. You will

2 recall that yesterday I drew attention to the memoranda

3 written by Mr AW Stephens, head of DS10. I do not

4 imagine it has been put into the system, but we have

5 a letter written to the Inquiry by the Ministry of

6 Defence, dated 18th October 1999, in which they

7 describe -- I need not read the whole letter -- the

8 setup in the Ministry of Defence in 1972 and say this

9 in paragraph 4:

10 "DS10 was originally responsible for internal

11 security matters in the UK, but as the Northern Ireland

12 problem emerged, it dealt exclusively with

13 Northern Ireland. To give you some indication of the

14 scale and importance of the army's commitment to

15 Northern Ireland at the time, AUSGS's" which I think is

16 Assistant Under General Secretary Staff "AUSGS's other

17 two decisions DS6 and DS7 covered all other operations

18 worldwide, together with the size and shape of the

19 army, its plans and budget."

20 That is of great assistance and it goes to

21 show, of course, that Mr Stephens was a very senior and

22 important civil servant at the highest echelons of the

23 Ministry of Defence.

24 Sir, I had finished at the end of yesterday

25 drawing attention to the view that witnesses,


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1 particularly Mr Porter and young John Carr would have

2 had from Abbey Park on the virtual reality. May I just

3 show you the only picture that we have taken from that

4 angle, which is P682. You will recall this is the

5 photograph which shows the bodies of Jim Wray and

6 William McKinney being taken through the alleyway. It

7 is clearly taken from some point between 8 Abbey Park

8 and the alleyway and shows a rather similar aspect to

9 that that we saw in the virtual reality.

10 We cannot, unfortunately, see the precise

11 location of the pavement as it is obscured by the

12 people, but that helps to show us how it would have

13 looked on the day.

14 Going back, sir, to the evidence of

15 Mr Porter, he had thought, and said so specifically in

16 his re-examination at the Widgery Tribunal, that Jim

17 Wray originally fell because of a stumble and that both

18 the shots which struck his body had occurred from close

19 range while he was on the ground when he had seen the

20 two puffs of smoke.

21 That theory might seem to have some support

22 from the configuration of the wounds, which I do not

23 propose to show at this stage, but which we will need

24 to examine in due course, on the back, which had struck

25 Dr Carson at the post mortem by their very similar


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1 appearance.

2 Dr Shepherd and Mr O'Callaghan, however, say

3 that there is no necessity scientifically for the two

4 shots to have been fired in quick succession or that

5 both occurred when Jim Wray was on the ground. There

6 is some other confirmation of Mr Porter's theory. Joe

7 Mahon says there were two shots fired when Jim was on

8 the ground and also says that his coat moved twice and

9 John O'Kane also said two shots rang out and the body

10 jumped on the floor.

11 In spite of that, we believe it to be

12 overwhelmingly likely that Jim Wray was first hit in

13 the lower back as he ran across Glenfada Park North and

14 that he fell because he was hit and not merely because

15 he stumbled. If he had merely stumbled the likelihood

16 is we think that he would have scrambled the last few

17 feet to the shelter of the alley. George Hillen says

18 that Jim said "I am hit" as he fell and Malachy Coyle,

19 among other witnesses, said that when Jim was on the

20 ground, "I cannot move my legs"; that you may think --

21 we will explore it with the experts -- would be

22 consistent with a man who had been struck and possibly

23 paralysed by a shot at the lower back.

24 When he was shot again by the soldier who

25 came up at close quarters, it may well be that two


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1 shots were fired, one of them striking the upper back

2 and the other narrowly missing his body. Malachy Coyle

3 described how the pavement beside Jim exploded with

4 sparks, which may be consistent with a direct hit of

5 a bullet against the pavement.

6 Whether it is one shot or two shots, his

7 execution as he lay on the ground was an act of callous

8 murder. We cannot tell, but we think it likely that

9 Jim Wray could have lived if he were only to have been

10 hit by the first shot. He might so easily have been

11 rescued, particularly by John Porter, who went forward

12 to rescue him, but was driven back by the shooting

13 coming from the soldiers across the square, and his

14 life could have been saved if he had not been

15 ruthlessly finished off by a soldier firing from close

16 range.

17 Sir, it is significant to note that Jim

18 Wray's father and then after his death his family kept

19 the jacket that Jim Wray had worn, and kept it

20 carefully over all these years. The jacket has been

21 examined by Dr Shepherd and Mr O'Callaghan, who found

22 it very useful to compare the actual configuration of

23 the holes on the jacket with the various diagrams which

24 were made in 1972.

25 Their view is that the jacket does not --


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1 although it shows a number of holes, does not confirm

2 any theory of a third shot hitting the jacket but

3 missing the body. They say that the further hole must

4 have been caused when the jacket was folded or rucked

5 up as Jim Wray was running.

6 Sir, these are matters of expert detail which

7 we do not intend to go over further in opening.

8 Clearly the experts, we will need to probe very

9 carefully exactly what they are saying and come to

10 a definite submission at the close of this Inquiry.

11 Whether the final shot on the ground was

12 a single shot or two shots, the question then arises:

13 who was the murderer? Mr Harvey has noted in his

14 submissions in his review of the sectors that it really

15 has to be Private G who must, after shooting Jim Wray,

16 have continued into the alleyway to reach Abbey Park

17 and fire the shot whose bullet lodged in the body of

18 Gerald Donaghy and thereafter fire at Gerard McKinney.

19 Joe Mahon also says that the killer of Jim

20 Wray went through the alley and returned after some

21 time, during which shots were fired. There are,

22 however, some questions still to be probed. Joe Mahon

23 describes the killer of Jim Wray as blond. He saw his

24 blond hair when the soldier took his helmet off after

25 coming back from the alley and wiped his forehead. Was


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1 Private G a blond-haired man? We do not know.

2 Since he is deceased, we need to know from

3 some other means. We have suggested to the Tribunal

4 that they seek contemporary photographs of key soldiers

5 so that some reference could be made to their

6 contemporary features, which of course will have

7 changed enormously in the 27 years.

8 Joseph Mahon also claimed to identify the

9 blond soldier on a video. We know not at the moment

10 who he picked out, but we have been told that other

11 soldiers have recently been asked to look at the video

12 and we will no doubt discover who it is Joe Mahon

13 claimed to recognise and we can then analyse whether he

14 is likely to be right in his identification or not.

15 Joe Mahon also spoke of a soldier named Dave

16 whose name was called out. We know that one of the

17 soldiers close to the scene had a Christian name

18 David. We are not at the moment allowed to say who

19 because we have still this tortured problem of matching

20 Christian names to soldiers in public, but this is

21 clearly a matter which will have to be dealt with and

22 we will then make submissions in the light of that when

23 the identification of Dave is finally made public.

24 Finally, in looking at the possible

25 candidates for the murder of Jim Wray, we have to look


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1 at another of the allegations of Private 027. Can we

2 have on screen, B1565.006? May we go to the bottom ten

3 lines of the page? This in fact follows on from the

4 passage that I read earlier. I go from three lines

5 down:

6 "I knew the blokes were getting in while the

7 going was good as people with gleeful expressions were

8 running up from the rear and elbowing their way through

9 to get into the firing line. I shouted the order

10 'cease-fire' and ran along the line tapping them on

11 their solders. The firing slacked and died as the

12 crowd dispersed. E, H, G and F and myself then leapt

13 the wall, turned right and ran down Kells Walk into

14 Glenfada Park, a small triangular car park within the

15 complex of flats. A group of some 40 civilians were

16 there running in an effort to get away.

17 "H fired from the hip at a range of 10

18 yards. The bullet passed through one man and into

19 another and they both fell, one dead and one wounded."

20 Can we turn over:

21 "He then moved forward and fired again,

22 killing the wounded man. They lay sprawled together

23 half on the pavement and half in the gutter.

24 [Blank]" which is E "shot another man at the entrance

25 of the park, who also fell on the pavement. A fourth


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1 man was killed by either G -- "

2 LORD SAVILLE: What was the letter in the

3 blank there?

4 LORD GIFFORD: The first blank was E in line

5 three.

6 LORD SAVILLE: E for echo?

7 LORD GIFFORD: And the two blanks on line

8 five are G or F:

9 "I must point out that this whole incident in

10 Glenfada Park occurred in fleeting seconds and I can no

11 longer recall the order of fire or who fell first, but

12 I do remember that when we first appeared, darkened

13 faces, sweat and aggression, brandishing rifles, the

14 crowd stopped immediately in their tracks, turned to

15 face us and raised their hands. This is the way they

16 were standing when they were shot. Men and women

17 whimpering and crying and trembling with fear with

18 their hands on their heads. We frogmarched them at

19 a jog-trot to the rear."

20 That then deals with the taking of prisoners.

21 Sir, was that reference to the shot fired by

22 H killing one and wounding another and then H moving

23 forward killing the wounded man, was that a reference

24 to the killing of Jim Wray, or is it a reference to Joe

25 Mahon and Willie McKinney, who did lie sprawled


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1 together in the same line, as we have seen in

2 photograph P681? Of course, however, Joe Mahon was not

3 killed, he was narrowly saved from death by the

4 intervention of Evelyn Lafferty.

5 So, sir, we leave it there for the moment.

6 We do not disagree with Mr Harvey's conclusion, but we

7 do have a duty, of course, to probe every possibility

8 before we make final submissions as to who was the

9 soldier who murdered Jim Wray as he lay on the ground.

10 In concluding this opening we call for the

11 Tribunal to exercise the utmost vigilance and to

12 maintain its dogged determination to uncover the truth,

13 even though some may wish to obstruct you in your

14 search.

15 Mr Harvey in his opening reminded you of some

16 of the events which went on behind the scenes at the

17 time of the Widgery Tribunal and he was asked by

18 Mr Toohey as to the relevance of that material, given

19 of course that you were not here to make a critique or

20 re-examination of Widgery, but rather of the facts

21 which Widgery inquired into.

22 In my submission, sir, the material that

23 Mr Harvey covered -- and I will not repeat it -- was

24 relevant not merely as a critique or indictment of the

25 processes of the Widgery Tribunal, but for what it


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1 reveals of the motives and tactics of those within the

2 Ministry of Defence and elsewhere who wanted to ensure

3 that the truth was distorted and concealed, because

4 arising from material of that nature one has to ask the

5 further question: how much distortion and concealment

6 is still going on; what would the secret memoranda

7 dealing with the preparations within the Ministry of

8 Defence for the Saville Inquiry reveal in 30 years

9 time?

10 This Tribunal is committed to a new approach

11 and a different approach and that is good, but the

12 Ministry of Defence is the same Ministry of Defence and

13 the Intelligence Services, albeit perhaps with

14 different names and different personnel, are the same

15 Intelligent Services institutionally. Indeed since

16 1972 their techniques of deception and secrecy in the

17 context of the Northern Ireland conflict have become

18 vastly more sophisticated. They remain as institutions

19 as committed to winning the propaganda war in 2000 as

20 they were in 1972.

21 One can surmise that within their ranks there

22 are people who are not friends of this Inquiry. In

23 1972 the Inquiry itself collaborated in the cover-up.

24 In 2000 those who wish to distort or to conceal the

25 truth may have to deceive the Inquiry itself.


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1 We submit this is not an unreal or

2 speculative suggestion and in an Inquiry from which so

3 much is missing -- rifles have gone missing, heli-tele

4 footage is missing, army photographs are missing, legal

5 advice given in 1972 is missing, intelligence material

6 coming from primary sources in 1972 is missing.

7 The Wray family and its legal team make no

8 apology for having delivered to the Inquiry over the

9 months a barrage of questions which are designed to

10 assist the Inquiry to draw out material which might

11 otherwise be withheld.

12 For instance, on 26th June 2000 we submitted

13 a list of 20 questions for the Security Service and 19

14 for the Ministry of Defence. We drew attention to

15 documents which must have existed concerning

16 Observer B, James Julian, IO1, IO2, "David" and the

17 other shadowy figure, who were involved in intelligence

18 at the time and some of those issues will have to be

19 revisited on 5th December when the public interest

20 immunity application is heard.

21 On 12th June 2000 we wrote the last of

22 a series of letters asking questions about the army and

23 police photographs and the heli-tele film. We

24 suggested questions which might usefully be posed to

25 the various people who had photographs in their


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1 possession at different times. We have yet to receive

2 any response as to whether our suggestions and

3 initiatives were acted on and if so, with what

4 results.

5 Sir, we ask you and your colleagues not to be

6 content merely with receiving negative answers from the

7 Ministry of Defence or other Government sources.

8 The Tribunal has powers to compel any person

9 whom it reasonably believes to have relevant

10 information to appear before it and be questioned. We

11 ask the Tribunal to insist on interlocutory hearings

12 designed to give itself and the interested parties the

13 right to question relevant witnesses who had documents

14 in their possession as to what documents did exist and

15 what has happened to them.

16 Sir, members of the Tribunal, it has already

17 become evident that this Tribunal itself is unpopular

18 in some quarters, because it has stood up for openness

19 and for truth. Your rulings on anonymity met with

20 a vituperative campaign in some sections of the press

21 -- against you, sir, particularly -- and by threats of

22 non-cooperation with the Inquiry by soldiers led by

23 Colonel Wilford.

24 LORD SAVILLE: Lord Gifford, can I come back

25 to your suggestion of an interlocutory hearing. At the


Page 14


1 moment I am not expressing a view either way, but it is

2 certainly a suggestion we will consider and I think --

3 there is no need for you to make an apology for your

4 so-called barrage of questions, they are, if I may say

5 so, very helpful and my information is that they have

6 been forwarded to the appropriate places in an attempt

7 to find answers.

8 I think what would help us, if you have

9 a moment at some stage, is to bring those all together

10 in a document you could send to us and we could

11 distribute to everyone else, so that we have in one

12 place the questions that you regard as still being

13 outstanding.

14 LORD GIFFORD: As to the drawing together of

15 all the questions, we will certainly do that. As to

16 the issue of interlocutory hearings, what I am seeking

17 to put across is that we should not have to wait until

18 certain witnesses come to give evidence in their

19 order. If there is evidence, let us say to take an

20 example, "David" must have had certain documents in his

21 possession, then rather than wait for "David" to give

22 evidence as a witness, we need him to give evidence as

23 a source of documents in an interlocutory hearing.

24 If various people have said in correspondence

25 or have said to Mr Donny Scott that "we have handled


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1 quantities of photographs", then it is important at an

2 early interlocutory hearing to question them as to what

3 they did with those photographs, rather than to wait

4 for some later stage. We will make that more specific

5 in the letter that we will write.

6 LORD SAVILLE: I follow that, which is why

7 without ruling in your favour or otherwise, I have

8 picked up this question of an interlocutory hearing.

9 I see the reasoning behind it, but I think we could be

10 in a position better to consider that if you could

11 adopt the suggestion I have made to you.

12 LORD GIFFORD: Certainly, sir.

13 Sir, those rulings which met with such an

14 attack were overturned by the Court of Appeal in

15 England in litigation which the Ministry of Defence

16 openly supported. More recently you have been fed with

17 highly controversial material from Observer B and from

18 Infliction and you are now being asked to deprive

19 yourself of an open investigation of this material by

20 acceding to a public interest immunity application.

21 It is, we submit, evident that the Ministry

22 of Defence and the Security Service, bodies who may

23 have the most to hide, are hostile to this Inquiry and

24 will do their utmost to thwart it from achieving its

25 goal of reaching the truth by a public process.


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1 You, sir, and each of you, will need to show

2 courage and continued resolve in the face of all

3 attempts which are being and will continue to be made,

4 both overt and covert, to deflect you from your

5 mission.

6 Those are my submissions on behalf of the

7 Wray family.

8 LORD SAVILLE: Thank you very much.

9 Opening Submissions by MR MORGAN

10 MR MORGAN: Sir, I appear on behalf of two of

11 those who were wounded as a result of the shooting on

12 Bloody Sunday, Michael Bradley and Michael Bridge.

13 I want to start by acknowledging my

14 indebtedness and that of my clients to others who have

15 presented openings on behalf of the families and those

16 who were shot and survived. In particular I wish to

17 commend to you the careful, rigorous and comprehensive

18 analysis of Mr Harvey, which I am grateful to adopt and

19 which I could not hope to equal, never mind improve

20 upon.

21 I also commend in particular the careful

22 analysis of the claim of responsibility which

23 Lord Gifford has carefully analysed, in particular

24 yesterday afternoon. This is an analysis with which we

25 are in full agreement and, since it has been so


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1 recently delivered to you, we wish to draw express

2 attention to the importance of one aspect of it. That

3 is the conversation between Lord Widgery and Mr Heath,

4 which is discussed at paragraphs 30 to 32, the

5 reference being KH4.8.

6 I do not intend to take you through the

7 detail of what was said because it has, I suspect, been

8 opened to you on a couple of occasions. Essentially

9 within 30 to 32 we see there was a discussion between

10 Lord Widgery, Mr Heath and a number of others,

11 including Lord Hailsham.

12 At paragraph 32, we see that Lord Widgery was

13 warned that there was a propaganda war. It may be that

14 that can be interpreted or should at least be

15 questioned as to whether or not it was a warning to him

16 that he should be careful in relation to findings

17 against the army, but it is our submission that any

18 explanation in relation to that comment must also be

19 judged in terms of its impact so far as the politicians

20 were concerned.

21 If it was the case that Lord Widgery's

22 Inquiry were to exonerate the army, it must follow that

23 there was no particular reason to suppose that the

24 politicians would be at risk in terms of blame or

25 causation in relation to the events.


Page 18


1 If, however, it were the case that

2 Lord Widgery were to criticise the army, it must also

3 follow that it was highly likely that that criticism

4 would swiftly focus on the political control in

5 relation to the actions of the army and, in particular,

6 in circumstances where it has accepted, and indeed was

7 acknowledged by the politicians that they have been

8 involved in and approved, in general terms, the plan.

9 Therefore it is our respectful submission

10 that when the time comes to look at the comments that

11 are made, in particular in paragraph 32, that there is

12 a certain care that will have to be taken about the

13 explanations which are offered.

14 I now wish, if I can, to examine five

15 particular issues which my clients are keen to draw to

16 the Tribunal's attention as being matters for

17 investigation and which at present we do not believe

18 have been explored in quite the same way before the

19 Inquiry.

20 The first of those issues concerns the

21 appointment of Major General Ford to his position as

22 Commander of Land Forces. I would ask you to turn to

23 temporary statement 14.1 where this matter is discussed

24 by General Ford: one sees in paragraph 1.2 that he

25 describes how he arrived in Northern Ireland as


Page 19


1 Commander Land Forces Northern Ireland on 29th July

2 1971. He had been aware since March of that year that

3 he was due to be promoted and had been told that he was

4 likely on promotion to take command of an armoured

5 division in Germany. In the event he was told in April

6 that he would become Commander Land Forces in

7 Northern Ireland. That post had only existed for

8 a year or so prior to his appointment. His

9 predecessor, Major General Farrar-Hockley, was posted

10 to the position in Germany and before he went to take

11 up his post in Northern Ireland he had a series of

12 briefings.

13 We wrote to the Tribunal on 6th July 2000,

14 inquiring inter alia about the minutes of the meetings

15 which considered the appointment of General Ford to the

16 position of Commander of Land Forces and we also

17 expressly inquired whether or not any application for

18 such a post had been made, either formally or

19 informally, by Major General Ford.

20 It is our submission that 1.2 can be analysed

21 so as to suggest that there was some reason which

22 operated somewhere or other causing a change of

23 personnel in relation to these two posts, the post in

24 Germany and the post in Northern Ireland.

25 There is no explanation that we can see


Page 20


1 within the documents as to why there should have been

2 such a juggling around of the personnel, and one can

3 think that there may well be a host of reasons as to

4 why that may have occurred. But it is odd that such

5 a change of personnel in relation to such a senior

6 position within the army would have occurred at such

7 a sensitive time.

8 One has to remember that the taking up of his

9 position by General Ford on 29th July was essentially

10 about two weeks or so before the army actually put into

11 operation its plan for internment. One would have

12 anticipated that there would have been a very

13 considerable demand upon army resources which would

14 have been expected at or about that time and one would

15 have thought that it would have been important that if

16 there was to be some kind of change of operation, that

17 the timing of it might have been considered carefully.

18 The reason we say it is necessary to pursue

19 this is to establish whether or not General Ford was

20 appointed to achieve a purpose and whether that purpose

21 was connected with any change in army policy towards

22 civil disturbance and in particular whether it

23 represented any kind of indication of a more aggressive

24 response in relation to that policy.

25 Someone in the Ministry of Defence was


Page 21


1 responsible for making these decisions and they must

2 have had a reason for doing so. It is our submission

3 that until one establishes the position in relation to

4 the material available about the reasons for the

5 changes that were made during this part of 1971, that

6 it is not possible to have an understanding of the

7 answer to that question.

8 The second matter which we draw to the

9 Tribunal's attention is the question of the role of

10 Major General Ford as an observer on 30th January

11 1972. Some of this material may have been open to the

12 Tribunal and I do not intend to spend a lot of time on

13 it, but there are some aspects of it which we believe

14 have not yet been explored.

15 The question of a status as an observer is

16 addressed by General Ford in temporary statement

17 14.27. It is particularly dealt with by him at

18 paragraphs 12.1 to 12.5. These are his comments in

19 relation to the notes of Mr Hamill which we will turn

20 to in due course. At 12.1, he says:

21 "The suggestion that I might have pressurised

22 Brigadier MacLellan has come about because of an

23 interview I gave Desmond Hamill 12 years after the

24 event (in 1984) and what he wrote in his book "Pig in

25 the Middle".


Page 22


1 "12.2. Knowing what I do now about my

2 communications on the day, it is clear that I was

3 mistaken in what I told Mr Hamill, or the matters

4 I implied to him, in 1984.

5 "12.3. I can remember little about my

6 interview with him, save that I believe that it took

7 place in my office at the Royal Hospital Chelsea at the

8 request of the Director of Public Relations (Army) at

9 the MoD. I believe I was told that Mr Hamill was, with

10 the MoD's backing, writing a book about the army's

11 operations in Northern Ireland 1969-1984. I was asked

12 whether I would be prepared to contribute on an

13 unattributable basis and I agreed to do so."

14 We draw particular attention to 12.3 because

15 it demonstrates that the purpose of this interview was

16 to support the MoD; it was clearly something that

17 General Ford was advised was being carried out with the

18 MoD's backing; it was being done on an unattributable

19 basis, which is what one might have expected if candour

20 was to be applied in relation to what occurred and he

21 must also have anticipated that whatever comments he

22 made, that they would in due course have been

23 scrutinised by the MoD and if they were unhelpful, that

24 they would in fact had been amended, excluded or

25 otherwise edited.


Page 23


1 But certainly there is no basis at all within

2 12.3 for thinking that the comments and the disclosures

3 that he was going to make to Mr Hamill would have been

4 other than comments which would have been entirely

5 truthful and accurate as to any events which he was

6 going to describe.

7 He goes on:

8 "12.4. I do not know why I made the errors

9 I did in speaking to Mr Hamill. I did not apply any

10 pressure. I did not speak to Brigadier MacLellan or

11 any member of his staff after I left his headquarters

12 at about 1400 hours on Sunday 30th January 1972 until

13 I returned there at about 1730 hours, except to make

14 the two radio messages which are recorded in the

15 transcript of Mr Porter's tape ...

16 "12.5 ... until I met him by accident near

17 the corner of William Street/Chamberlain Street at 1640

18 hours or later when the fire fight was over."

19 Could I then turn to Mr Hamill's notes which

20 are to be found at B1208.003.018? I want if I can just

21 to look at most of this page, beginning three lines

22 down:

23 "On the secure net to MacLellan, I sent

24 a message suggesting he got a move on. Being on the

25 ground I got the 'feel' that it was the right time to


Page 24


1 move though Pat MacLellan could probably 'see' more

2 through his helicopter above."

3 That of course is important, because Major

4 General Ford has contended in his statement that he did

5 not have the means to use the secure net: it is also

6 important in that it represents a misremembering by way

7 of addition rather than a misremembering by way of

8 a failure of recollection. In my respectful

9 submission, where there is a misremembering by way of

10 addition, that one is more careful to look at it to see

11 whether or not its accuracy can be accepted.

12 He continues:

13 "It is difficult for a brigadier to have

14 a major general on the spot. (You are moving into

15 a very delicate area now.) One over one is never the

16 right chain of command on an active operation. It has

17 been proved in all history. That was the brigade

18 commander's area, and Pat MacLellan was the brigade

19 commander. What was happening in Londonderry that day

20 was crucial to the future of that part of

21 Northern Ireland. Not just in the Creggan area. It

22 was crucial for the future, for all sorts of reasons.

23 I, of course, was determined to have a success. I felt

24 so much could turn on this -- not just there but in

25 Belfast as well. As it was crucial, I went there."


Page 25


1 That passage, in my respectful submission, is

2 difficult to accept as an explanation of an operation

3 that was designed to contain and, where appropriate, to

4 affect arrests.

5 In our submission it raises the question of

6 whether or not there was a scheme, as it were, that was

7 devised here which was going to be put into operation

8 by way of contact with some civilian groups and which

9 was being planned from a reasonably early stage. The

10 importance of success so far as General Ford has

11 described it is emphasised. He was determined to have

12 a success, and the reason for that success was that it

13 was going to cause things to turn not just in Derry,

14 but in Belfast as well.

15 The importance that he attached to what he

16 might achieve by way of this operation he describes by

17 saying what was happening in Londonderry that day was

18 crucial to the future of that part of

19 Northern Ireland. It is difficult to imagine anything

20 that was less important, and in our submission when one

21 compares that with the orders that were actually raised

22 for the day, it causes one to question whether in fact

23 there was within the main plan another plan, a plan to

24 carry out an operation, the detail of which has not

25 been disclosed. In other words, a plan within a plan,


Page 26


1 as indeed was raised by Lord Gifford in his

2 submissions.

3 That, of course, is a concept which is by no

4 means, and was by no means, unknown to General Ford at

5 the relevant time, because one sees in fact from his

6 own statement that there was such a plan within a plan

7 in relation to the implementation of internment. I do

8 not intend to take you to that, but it can be found at

9 temporary statement 14.2.

10 If one continues with the note:

11 "But as one over one is always

12 unsatisfactory ... I think it is very difficult for me

13 to comment. I have a great liking for Pat McClelland

14 and I would rather leave it. I have all the details

15 and I would have to look it up.

16 "Would it be fair to say that your message

17 chivvied him along and made him act earlier than in his

18 own judgment he would have done or at all? No

19 answer."

20 The other question of course that arises from

21 an examination of that conversation is whether it

22 indicates that General Ford regarded his role in

23 relation to the events as simply an observer with

24 a view to seeing what occurred? It is our respectful

25 submission that, given the importance he attached to


Page 27


1 the events, and given that he himself remembers that he

2 was the one who suggested to Brigadier MacLellan that

3 he should put the troops in, that of itself indicates

4 he viewed his role as considerably more active than

5 that of an observer, and that his purpose was to

6 achieve what he regarded as a crucial success in

7 relation to the events of the day.

8 If we then look at what Brigadier MacLellan

9 said to Mr Hamill, it is our respectful submission that

10 this is to be examined with a view to determining

11 whether it supports the proposition that there was

12 a misremembering by General Ford, or whether it

13 supports the proposition that one should look carefully

14 at the accuracy of that proposition.

15 The interview with Brigadier MacLellan can be

16 found at bundle B1279.003.004. At the very bottom of

17 the page one sees that Brigadier MacLellan says:

18 "On Friday 28th January, I had my O Group at

19 HQ where I stressed low key and so on. On Sunday 30th

20 January, the CLF, accompanied by an Assistant

21 Chief Constable, David Corbett" over the page, 205:

22 "And Colonel Maurice Tugwell, of the

23 Parachute Regiment, arrived with their own secure

24 radio."

25 So here is Brigadier MacLellan confirming his


Page 28


1 recollection that there was a secure radio which was

2 available to General Ford, a matter which he himself

3 had expressly stated to Mr Hamill and which of course

4 has subsequently been denied.

5 Then over the page again at 006, the second

6 paragraph:

7 "Did Ford communicate with me? Not while he

8 was out on the ground. But his secure radio came

9 through to my brigade major. I recall that at one

10 stage he got on saying 'Why are not you going in ... or

11 is it not time you went in?' That was relayed to me by

12 the brigade major."

13 If it is the case that General Ford was in

14 fact an observer in relation to these events and that

15 he was not participating in the giving of orders, it is

16 quite remarkable that General Ford in his interview

17 with Mr Hamill should remember that he was in fact, at

18 the very least, making suggestions about getting the

19 troops who were responsible for the killings and

20 woundings in and that the person whom he was ordering

21 or advising, that is Brigadier MacLellan, also, when he

22 is in the midst of a conversation with someone with

23 whom he can be candid, was apparently of the same view.

24 We respectfully say, therefore, that there is

25 a considerable question to be examined in relation to


Page 29


1 the question of access to a secure radio and the role

2 of General Ford as an observer.

3 We further contend that there is additional

4 support for that proposition to be gained when one

5 examines document B1126. If we could look at first of

6 all the top half of the page, these are notes made

7 broadly contemporaneously, as I understand it, of

8 General Ford's activities on the day in question. If

9 we look at the first substantial paragraph beginning

10 "The mob" and go halfway down to the sentence

11 beginning:

12 "It was at this stage that I heard shots

13 fired from the direction of Rossville Flats.

14 I returned at once to the observation post on Embassy

15 Ballroom, but on my way met Lieutenant Colonel

16 Ferguson, 22nd Light Air Defence Regiment, and advised

17 him that I thought it a good idea for him to return

18 D Company 1 Para to under command 1 Para. He agreed."

19 The extraordinary thing about that is that,

20 as we understand General Ford's position, his account

21 is that although he was on the ground, he accepted that

22 he had no real feel for the events that were actually

23 occurring on the day. Why is it, one asks, that he

24 would have taken such an interest in the return of

25 D Company to the command of 1 Para, and what purpose


Page 30


1 was it that he felt would be served by the return of

2 that company?

3 I have to say that I do not put before you

4 some analysis which leads to an explanation for that,

5 it is simply baffling so far as we can understand.

6 But it is clearly, and clearly was in

7 General Ford's mind, important. The reason we say that

8 is, if one looks at the bottom half of the page, one

9 sees there is yet a further reference to it. In the

10 bottom half of the page, starting at paragraph 2, he

11 describes:

12 "2. Rossville Street: Company moving

13 tactically into positions overlooking Glenfada Flats

14 and Rossville Flats. At the same time other troops

15 were rounding suspects up in Rossville Street and

16 moving them to the wasteground at the junction Little

17 James' Street/William Street where they were searched

18 and held."

19 The important passage is:

20 "I then spoke on the radio to the HQ 8th

21 Brigade and asked if D Company 1 Para had been

22 transferred to under command 1 Para. This was

23 confirmed.

24 "Moved back down to Waterloo Place. I then

25 had a quick word with D Company command 1 Para, who at


Page 31


1 that stage was just returning to under command 1 Para.

2 After speaking to me, he moved off ..." et cetera.

3 What is absolutely clear is that, for

4 whatever reason, General Ford was taking a very active

5 --

6 LORD SAVILLE: Can you identify

7 Sackville Street for me? I have it, yes, it is where

8 barrier 13 is.

9 MR MORGAN: Exactly. But if it is the case

10 that General Ford presents himself merely as an

11 observer on the day in question, it does seem quite

12 extraordinary that he should have taken such a keen

13 interest in what one would have thought and imagined --

14 I say this without the benefit of any kind of military

15 experience or guidance -- but one would have thought or

16 imagined would have been very much an operational

17 military decision to be made by the person on the

18 ground who understood what was happening and the

19 requirements of what was needed.

20 For instance, one would have anticipated that

21 if Colonel Wilford required the assistance of 1 Para or

22 required them under his command, that he was the person

23 who would have made the request to the headquarters for

24 the return of 1 Para, who at that stage were under the

25 command of Light Air Defence. It is simply


Page 32


1 extraordinary to marry what is said here and indeed

2 what is said in conversation with Mr Hamill with the

3 proposition that General Ford, who believed that what

4 was happening was crucial and important, not just on

5 the day but in a very general way to the future of

6 Northern Ireland, to believe that he was simply there

7 to observe and to note the events that had occurred.

8 We are driven to the conclusion that there

9 must be very considerable doubt indeed as to whether in

10 relation to that aspect of his evidence, that

11 General Ford's account is correct.

12 The next issue to which I want to turn, the

13 third issue, is the question of the role of

14 Brigadier Kitson. I want to start off if I can by

15 looking at what General Ford says in relation to his

16 relationship with Brigadier Kitson. That can be found

17 in temporary statement 14.14. I want to look at the

18 bottom half of that page, at the bottom of paragraph

19 5.7. This is a passage which has previously been

20 opened to the Tribunal. I will quickly read through

21 it:

22 "I was certainly not made aware of any formal

23 or informal requests that 1 Para should not be used as

24 intended on 30th January. If any such requests were

25 made, they might have been made to headquarters 8th


Page 33


1 Brigade and I have no recollection of Brigadier

2 MacLellan mentioning such issues to me. 1 Para had

3 been particularly successful in Belfast. Like any

4 other successful unit or individual, they automatically

5 became the focus of IRA/Sinn Fein propaganda -- this is

6 usual in a counter-insurgency campaign. The other side

7 would always try and make the maximum of any incident,

8 whether real or reported, in the hope that in turn this

9 propaganda would reduce operational capabilities.

10 I certainly knew that 1 Para was the focus of such

11 propaganda at this time. I had confidence in

12 Brigadier Kitson and 1 Para."

13 So there is an apparent relationship in terms

14 of approval between Kitson and 1 Para and

15 identification, we would respectfully say, in the

16 context of this statement:

17 "I knew Brigadier Kitson very well" and that

18 is something to which I will return:

19 "I had seen 1 Para operating on earlier

20 occasions."

21 One imagines that is in relation to his spell

22 of duty as Commander Land Forces from the end of July

23 1971:

24 "I knew Kitson's view of that particular

25 Battalion", which demonstrates that he was having


Page 34


1 operational discussions with Brigadier Kitson about

2 that Battalion:

3 "He thought they were very good and he

4 depended on them."

5 In my respectful submission, that

6 demonstrates that between General Ford and

7 Brigadier Kitson that 1 Para were recognised as having

8 a special and particular role to play in relation to

9 dealing with crowd disturbance or civil disturbance.

10 If we go to look at the opportunities for

11 discussion between General Ford and Brigadier Kitson

12 and the extent to which those likely discussions were

13 reported. In order to do that it is probably most

14 helpful to start at temporary statement 14.54. I am

15 going to look in particular at paragraph 8, which is in

16 the top half -- a memo which is sometimes referred to

17 as the memo 7th January 1972, although I do not believe

18 it is in fact dated, but it is the typewritten script

19 of the memo which was written after the visit 7th

20 January. It appears it was written on either the 7th

21 or 8th. At paragraph 8:

22 "We have also to face the possibility of

23 a NICRA march from the Creggan to the Guildhall Square

24 at 1400 hours on Sunday, 16th January 1972. This would

25 be followed by a rally which will be addressed by


Page 35


1 Members of Parliament and leading members of NICRA.

2 I told Commander 8th Brigade that he was to prepare

3 a plan over this weekend" that is what makes me think

4 it was the Friday or Saturday the memo was written:

5 "... based on the assumption that the march

6 was to be stopped as near to its starting point as was

7 practical and taking into account the likelihood of

8 some form of battle (therefore he must choose a place

9 of tactical advantage)" for the battle "and also the

10 fact that the minimum damage must be done to the

11 shopping centre.

12 "This plan is due to be with me at 1400

13 hours on Monday and will also forecast the force levels

14 required for it. I have issued a warning order to 1

15 King's Own Border (who become operational on the 13th

16 as Province Reserve) and 1 Para."

17 He then talks about asking D Intelligence to

18 do various things.

19 The importance of that is that he must have

20 issued that warning order by the time that this note is

21 actually prepared, which is 7th or 8th January, and if

22 he is going to issue such a warning order in relation

23 to what was the Belfast reserve, then as we see from

24 Brigadier Kitson's statement the normal procedure one

25 would have anticipated was that he would have had


Page 36


1 a conversation with Brigadier Kitson, in the course of

2 which he would have established whether or not there

3 was any difficulty about Brigadier Kitson releasing his

4 Belfast reserve for an operation that was going to take

5 place some 75 miles away.

6 In his statement, if one could see CK1.2,

7 that procedure is identified by Brigadier Kitson at

8 paragraph 9, when he says:

9 "I do not remember when the decision was made

10 to reinforce 8th Brigade for the illegal march in

11 Londonderry that had been arranged to take place at the

12 end of January 1972. Commander 8th Brigade must have

13 felt that he needed to be reinforced and GOC and CLF

14 must have decided to send the province reserve

15 battalion and 39 Brigade's reserve battalion."

16 So he actually places it higher, he says that

17 the decision to send the Belfast reserve, the 39th

18 Brigade reserve, he anticipated would have been

19 a decision made by the CLF and the GOC:

20 "In making this decision they would have

21 considered the risk involved in removing 1 Para from

22 Belfast for the short period concerned. It is probably

23 that CLF would have asked for my assessment of the risk

24 and it is unlikely that I would have objected to the

25 move, as Belfast was relatively quiet at the time,


Page 37


1 apart from bombing and isolated attacks on soldiers."

2 It is clear and it is recorded in temporary

3 statement 14.11 by General Ford that there was some

4 contact with Brigadier Kitson. If we look in

5 particular at paragraphs 4.10 and 4.11, we see that

6 General Ford says:

7 "In the view of all those I met on the 7th

8 January 1972 ... 'the front', as they called it, was

9 gradually moving northward and they said that not only

10 would Great James Street be destroyed by bombing, arson

11 and looting but also Clarendon Street, unless there was

12 a major change of policy. This would have meant that

13 the major shopping centre of Londonderry would have

14 been likely to have become derelict within a few

15 months.

16 "Previous experience of the DYH, the opinions

17 of those based in Londonderry and indeed commonsense

18 all lead to the conclusion that whatever the intentions

19 of the organisers, the NICRA march would be used as

20 a cover and excuse for prolonged and violent rioting.

21 The operation had been planned on this assumption ...

22 and I had told Brigadier Kitson that 1 Para might be

23 away for up to four days."

24 The point that I seek to draw from this is

25 that although there is evidence of a conversation which


Page 38


1 occurred with Brigadier Kitson some time prior to the

2 30th January, perhaps in or about 23rd or thereabouts,

3 it is also clear that it is highly likely there was

4 a conversation between General Ford and

5 Brigadier Kitson around the 7th January after

6 General Ford's visit to Derry and his meeting with the

7 traders.

8 One has to ask oneself: given the terms of

9 the note that General Ford wrote as a result of that

10 visit and given the view which he had formed as

11 a result of that visit, about the steps that were

12 required to be taken in relation to Derry, and given

13 that he intended to utilise the Brigade reserve of

14 Brigadier Kitson, and given that he knew that

15 Brigadier Kitson relied and depended upon that reserve,

16 without any more one has to ask oneself, is it really

17 to be accepted that he resolved in these two

18 conversations, first for the 16th and then for the

19 30th, that he was going to require these troops upon

20 whom Brigadier Kitson placed such trust and confidence

21 in relation to a particular operation without any

22 discussion at all of what his thoughts were in relation

23 to what was required.

24 But when one puts to that the clear esteem

25 with which Brigadier Kitson was held by his peers in


Page 39


1 relation to his understanding of the tactics required

2 in relation to civil disturbance, counter-insurgency,

3 dealing with terrorists, et cetera. It is my

4 submission it simply beggars belief that there was no

5 discussion which reflected upon these matters.

6 In order to demonstrate that esteem, one only

7 has to look at the foreword to Brigadier's book "Low

8 Intensity Operations", which was prepared by General

9 Sir Michael Carver. That book was published with

10 a dated foreword by Brigadier Kitson in 1970. The

11 copyright is 1971. In the foreword General Carver

12 says:

13 "Nobody could be better qualified than

14 Brigadier Frank Kitson to write on this subject. He

15 has a wide experience both of operations and

16 intelligence against terrorists and in the different

17 field of peace-keeping. In Malaya, Kenya and Cyprus he

18 approached the problems of this unfamiliar type of

19 warfare, if it can be called that, with a combination

20 of determination, unprejudiced objectiveness, devotion

21 to the task and high personal courage. I myself had

22 first-hand knowledge of his exceptional skill in this

23 field, both in Kenya and in Cyprus. His approach could

24 not be better defined than in his own words at the end

25 of chapter 6, where he says the process is a sort of


Page 40


1 game based on intense mental activity allied to a

2 determination to find things out and an ability to

3 regard everything on its merits, without regard to

4 customs, doctrine or drill" et cetera.

5 "This book is written for the soldier of

6 today to help him prepare for the operations of

7 tomorrow. It will be the greatest possible help to

8 him. I hope it will be read by all those concerned

9 with training the army."

10 If it is the case, that the relationship

11 between --

12 LORD SAVILLE: Can you give us the date when

13 that book was published?

14 MR MORGAN: 1971. As I say, the foreword was

15 I think --

16 LORD SAVILLE: You did tell me that, but

17 I missed it. I beg your pardon.

18 MR MORGAN: The point we respectfully make is

19 that it is clear General Ford establishes the nature of

20 the relationship between himself and Brigadier Kitson.

21 He clearly would have been entirely aware of his

22 particular skills in relation to questions of

23 peace-keeping, crowd control, dealing with terrorism.

24 It is clear that he was perplexed as a result of his

25 meeting on 7th January and it is clear that he had


Page 41


1 a view about the steps that ought to be taken by way of

2 a change of policy.

3 If there was to be such a change of policy,

4 one would have imagined it would have been a change

5 that would have impacted not just within the area of

6 8th Brigade, but potentially also would have impacted

7 also upon the area of 39th Brigade. But as we see as

8 we go through this, there appears to be a conspiracy of

9 silence in relation to what happened to the memo 7th

10 January 1972. Nowhere, so far as we can see, within

11 the documentation is there any reference whatsoever to

12 its existence; there is no communication either from

13 the army or from the politicians by way of documentary

14 evidence which establishes what the response to that

15 document was, and so far as we can see, there is no

16 discussion among those who would have been the

17 recipients and ought to have been the persons

18 responsible for giving such a response, no

19 acknowledgment even that they did give any such

20 response, that they can remember giving it.

21 So we respectfully say that there is again

22 considerable doubt about the proposition that the views

23 which General Ford had formed at the time of his memo,

24 which coincided almost precisely with the time of his

25 discussion with Brigadier Kitson in terms of the


Page 42


1 release of these people, that it is to be accepted that

2 there was no mention of the differing policy thoughts

3 that he had.

4 It is, in our respectful submission, also

5 relevant that when we come to look -- I do not intend

6 to go through it now -- at Brigadier Kitson's

7 statement, one finds there is no reference to any of

8 this; he does not discuss the nature of his

9 relationship with General Ford; he does not discuss

10 1 Para; he does not discuss his dependence upon 1 Para;

11 he does not discuss the role they played or the

12 particular attributes that they have, all matters, one

13 might have thought, which would have been important and

14 relevant considerations in relation to the issues which

15 the Inquiry has to deal with.

16 The next point we want to come to, the

17 fourth, is the question of undercover soldiers. Within

18 the papers there are, in our respectful submission,

19 documents which tend to support the proposition that

20 there were armed undercover soldiers within the crowd

21 on the afternoon in question. The first document

22 I would ask you to look at is C18.6. This is

23 a statement of a member of the Royal Military Police,

24 who was located in Derry on the day. I would ask you

25 in particular to look at paragraphs 41 to 43:


Page 43


1 "41. At some point, either when I was going

2 on a break or maybe when I went out into the main part

3 of the hanger to get another prisoner, I saw a prisoner

4 trying to climb out of one of the pens. I physically

5 pushed him back in. I had seen other prisoners trying

6 to get out from time to time but that was the only one

7 that I pushed.

8 "42. I saw that prisoner being processed

9 later on, but the next thing I saw was him chatting to

10 our major and having a cup of tea with him."

11 I should say that it must therefore be

12 possible to identify the major in question, and I am

13 not sure whether that has been done and whether

14 a statement has been obtained from the major to

15 establish what his recollection of the event is:

16 "... he had identified himself as a captain

17 and an undercover SAS officer, who had been living with

18 the civilians and who had been arrested with them.

19 I think he must have been standing out like a sore

20 thumb there and me physically pushing him back in to

21 the pen would have given him more credibility.

22 "43. Like the other prisoners, the SAS

23 officer had been in the pens for several hours. There

24 was such a large number of prisoners there, more than

25 we usually had to deal with, I think it took us four or


Page 44


1 five hours to process them."

2 That is an indication of the fact that there

3 were SAS soldiers on the ground. There is further

4 support for that proposition to be obtained if we look

5 at bundle O, at O36.107. This material constitutes the

6 interviews with various soldiers for the preparation of

7 the Channel 4 documentary "Secret History", in or about

8 1992. Soldier Y was a soldier who identified himself

9 as having been present in Derry on Bloody Sunday. If

10 I start from the middle of the page:

11 "Question: Let me just ask you something

12 again, forgive me if you think I am an ignoramus, but

13 I have to ask you these questions, all right. You have

14 got obviously a very dangerous and volatile situation,

15 the IRA have done this sort of thing before, you have

16 had, you know, used the rioting of the crowd, the crowd

17 parts, they open up. Is it possible the same thing

18 will happen here, likely? If you have got a lot of

19 plain-clothed SAS people in the crowd?

20 Answer: Four.

21 Question: Four in the crowd. Are all the

22 other soldiers aware of who is who?

23 Answer: No.

24 Question: So the likelihood is if anything

25 happens they are in a lot of danger, being in there?


Page 45


1 Answer: One of them got arrested.

2 Question: Why had he got arrested?

3 Answer: They beat shit out of him. They

4 really beat shit out of him.

5 Question: And he has to take it because he

6 cannot blow his cover."

7 Is that a reference to other matters outside

8 Northern Ireland? Then over the page at 110:

9 "Question: Yes, I understand that. These

10 four guys, were they armed?

11 Answer: Yes. Always armed.

12 Question: If he is armed and they get beaten

13 up and arrested, surely they will find the gun?

14 Answer: That is why he was beaten up."

15 There again is a soldier who was confirming

16 there was a member of the SAS who was arrested, who is

17 stating that there were three other members of the SAS

18 to his knowledge within the crowd and who confirms that

19 they were, so far as he was aware, all armed.

20 The importance that we respectfully say

21 attaches to that is that one must therefore be alert to

22 the fact that if there are reports of gunmen sighted

23 within the crowd or adjacent to the crowd, and one is

24 satisfied that such people were in fact there and were

25 armed, it is necessary to consider and exclude the


Page 46


1 possibility that the person in question is in fact an

2 undercover soldier.

3 Clearly since there is some importance that

4 may attach to that matter, it is in our respectful

5 submission clear that it is imperative that the major

6 of INQ 18 is identified and that a statement is

7 obtained from him in relation to these issues.

8 I should, of course, say that Soldier Y is

9 not in any sense related to the Widgery letters.

10 The last of the points of consideration that

11 we wish to draw to your attention is the question of

12 whether it was only soldiers from Mortar Platoon who

13 were present at Sector 2 at the commencement of the

14 operation.

15 There is at the very least one statement

16 which appears to cast some doubt upon that

17 proposition. I would ask you to look at C896.1. At

18 paragraph 2, one sees that:

19 "On the 30th January 1972, Inquiry 896 says

20 that he was a private, Machine Gun Platoon, Support

21 Company, the 1st Battalion the Parachute Regiment."

22 So we know the Platoon to which he belongs,

23 and I now want to look at paragraph 38, which is at

24 C896.5. If we look at the bottom section, please:

25 "I have seen a map which I understand is


Page 47


1 being used for the purpose of the Inquiry, but I cannot

2 say where on the map I was positioned. I have been

3 shown photographs used for the purpose of this Inquiry,

4 but I cannot remember where I was positioned in

5 relation to those photographs. I just remember seeing

6 the tall Rossville Flats in front of me and I remember

7 seeing what I would describe as an L shape. I think it

8 was most likely that I was looking at two sides, one

9 longer than the other, of one block of the Rossville

10 Flats, but I cannot be sure. I remember seeing a Pig

11 parked near to the corner of the L and I was pressed up

12 against the shorter side of the block trying to take

13 cover. I cannot remember what direction I was

14 facing."

15 We respectfully say first of all that the

16 description of the location in which he was taking

17 cover is consistent with a position which is at the

18 north end of block 1 of the Rossville Flats. The

19 question arises as to when it was that such a position

20 was undertaken, if one accepts that that is correct.

21 We draw attention to the fact that he describes a Pig

22 being present near the corner of the L.

23 The position where there was only one Pig,

24 that is Pig 2, in or about that area, was a position

25 which was the case at the beginning of the operation,


Page 48


1 but fairly quickly thereafter a number of other army

2 vehicles arrived at that location. Therefore, if it is

3 the case that this soldier was present at a stage when

4 there was only one Pig at this location, it does tend

5 to suggest that members of Machine Gun Platoon, or at

6 least a member of Machine Gun Platoon had made his way

7 into an area which is immediately adjacent to Sector 2

8 at the time that the shooting was taking place.

9 Of course that, in our respectful submission,

10 is relevant because, like Mr Harvey and others, we

11 respectfully need to have investigated whether or not

12 there was shooting within Sector 2 other than that

13 which has been admitted, and in light of this statement

14 we would be reluctant to accept, given the proposition

15 that any such shooting that has occurred in Sector 2

16 was necessarily solely the responsibility of Mortar

17 Platoon.

18 I should say if one looks at the statement as

19 a whole, one sees that Inquiry 896 is perhaps not

20 necessarily the most reliable of witnesses as to

21 exactly where he was and his appreciation of the

22 geography but we raise this solely as an indicator of

23 something that will need to be investigated and

24 something that will need to be addressed.

25 Those are the five matters which I on behalf


Page 49


1 of my clients was anxious to raise as matters for

2 consideration. I now want to turn to some six matters,

3 which I can deal with rather more briefly, which

4 I describe as matters relating to the public confidence

5 of the clients and the work of the Tribunal.

6 I make these comments not in any sense by way

7 of criticism or indication of dissent or unhappiness

8 with the work of the Tribunal, but I make them to draw

9 to the Tribunal's attention that there is an issue of

10 public confidence which in relation to some matters is

11 at risk.

12 The first of the matters that I wish to draw

13 to the Tribunal's attention is the question of the

14 continued provision of anonymity to all soldiers.

15 Having reviewed the Tribunal's ruling it is certainly

16 our understanding that the anonymity ruling does not

17 apply in relation to those soldiers who have expressly

18 indicated that they do not wish to avail of it. That

19 appears to follow from the first page of the ruling

20 which was given in October 1999. That was the position

21 in relation to the shooters, and we understand that the

22 ruling operates in the same way in relation to the

23 non-shooters.

24 There are a substantial number of soldiers

25 who, so far as we can see, have expressly indicated


Page 50


1 that they do not wish to avail of the ruling, and

2 I intend for the purposes of explaining this, simply to

3 draw attention to four of them.

4 The first is to be found at C23.1 at

5 paragraph 2:

6 "In addition, I took part in a television

7 programme called 'A Tour of Duty' with two former

8 colleagues ... Consequently, my name has always been in

9 the public domain. I do not therefore intend to make

10 a special reasons application for anonymity."

11 I should say first of all that it appears

12 this statement may have been taken at a time when the

13 Tribunal's original ruling was in place and the

14 reference to "a special reasons application for

15 anonymity" would tend to be --

16 LORD SAVILLE: I think that is almost

17 certainly the case.

18 MR MORGAN: -- would tend to confirm that.

19 Although I do not intend to play it, within the videos,

20 if one did play the video in relation to the programme,

21 one will see that Inquiry 23 is not a lone name, but

22 identified in the sense that his name is actually on

23 the video, given in relation specifically to his

24 person.

25 In our respectful submission, it appears


Page 51


1 difficult to understand why there is continued

2 anonymity in relation to somebody where, in respect of

3 a publicly available video, which is relevant to the

4 Tribunal's work, the man is actually identified by

5 name.

6 MR TOOHEY: Mr Morgan, what are you

7 suggesting we do in respect of those persons? Simply

8 remove anonymity, or refer the question of anonymity to

9 them and see what their current position is?

10 MR MORGAN: I have no difficulty with the

11 proposition that it may be the Tribunal would wish to

12 satisfy itself that those who have made statements some

13 time ago, some of them prior to the Court of Appeal's

14 ruling and the subsequent ruling of the Tribunal in

15 October 1999, may wish to reconsider their position.

16 But my point is that all my clients have and

17 all we have in relation to the question of anonymity is

18 what is contained in the statements. We do not know

19 whether or not consideration has been given to

20 identifying these people in an open way, or whether

21 consideration has been given to approaching them with

22 a view to establishing whether they wish to continue to

23 avail of anonymity.

24 The reason I draw this to the Tribunal's

25 attention is that it may be this is a matter of


Page 52


1 communication, rather than a matter of substance. If

2 it is the case that the Tribunal itself at an early

3 stage was persuaded that the need for an open Inquiry

4 involved the need for these people to be named, and if

5 it is the case that subsequently one finds there are,

6 we believe some 58 in all who variously, with various

7 emphasis, have indicated they do not wish to avail of

8 anonymity, then the question arises as to whether the

9 Tribunal is now taking a different view about the

10 question of openness to that which it took at an early

11 stage.

12 All we do is draw to the Tribunal's attention

13 that if there is no open discussion about what is

14 happening in relation to this sort of issue, that it

15 can unfortunately cause concern among those who are

16 participating about whether there is in fact the same

17 commitment to openness. I do not make that, as I say,

18 a criticism, it is simply a reflection of circumstances

19 that exist.

20 LORD SAVILLE: We did not say in October last

21 year that the ruling on anonymity which we then made,

22 which of course was in consequence of the decision of

23 the Court of Appeal, it did not apply to those who did

24 not wish to be anonymous; that remains the position.

25 MR MORGAN: If that is the case, the question


Page 53


1 is why does the Tribunal in its working continue to

2 give anonymity to people who on the papers have

3 expressly indicated -- for instance, if I may take

4 C520.

5 MR TOOHEY: Before you take one particular

6 example, Mr Morgan, you could help me if you will, are

7 the 58 persons to whom you refer collected in a readily

8 accessible way?

9 MR MORGAN: Certainly, sir. We can make

10 available to you the precise quotes in relation to

11 those people, because I have them to hand and I will

12 ensure that is done, and probably can be done over

13 lunchtime.

14 Can I look at C520.1, at paragraph 1. This

15 is a reasonably straightforward statement from a man

16 who is a member of the Coldstream Guards. We simply

17 cannot understand, in the absence of any further

18 indication, as to why anonymity is being preserved by

19 this Tribunal in relation to that witness. I do not

20 because I do not need to do it, because I can provide

21 them to you, go through the others who expressly say

22 without qualification "I confirm that I have no

23 objection to my name appearing in my statement",

24 or "this statement", whichever it may be.

25 LORD SAVILLE: Mr Morgan, I may, I hope, be


Page 54


1 able to satisfy you. There is no question of any

2 change of stance in the Tribunal's ruling on anonymity

3 given in October last year. You will appreciate that

4 the Tribunal's staff has been working flat out and

5 continues to do so on matters of great importance to

6 this Inquiry.

7 MR MORGAN: Yes.

8 LORD SAVILLE: If you are making an

9 application that we should now get in touch with all

10 those soldiers who at one time or another have

11 indicated that they do not wish to remain anonymous, we

12 will try and fit it into our schedule. I am bound to

13 tell you, at the moment I think there are probably more

14 important things for the staff to do.

15 MR MORGAN: I suppose what I am really asking

16 is that the Tribunal should indicate to the public when

17 it is going to get round to doing that. I am not

18 asking the Tribunal to give up other more important

19 work, what I am saying is the public need to be kept

20 informed and if it is the case that is something the

21 Tribunal intends to get round to when time is

22 available, I respectfully say that the public should be

23 told and that they should not be left to have to guess

24 that that is the course which the Tribunal intends to

25 take.


Page 55


1 LORD SAVILLE: What you are really doing is

2 really asking us if we would get in touch with those

3 soldiers who at some stage or another have indicated

4 they do not wish to be anonymous to see whether that is

5 still their view.

6 MR MORGAN: I am entirely happy to

7 characterise it in that way and accept it in that way,

8 sir.

9 LORD SAVILLE: The staff will have heard your

10 suggestion. No doubt we will try and fit it in to what

11 I repeat is a mountain of continuing work. I can

12 assure you that the attitude of the Tribunal has

13 remained unchanged since its ruling of October last

14 year.

15 MR MORGAN: I am grateful for that, sir.

16 The second matter of concern is not in any

17 sense perhaps a matter that impinges by way of

18 criticism upon the Tribunal, and it is the question of

19 the search for documentation. It has been taken up by

20 others in various different ways. We draw particular

21 attention to one matter, and it is a matter which

22 I have mentioned in passing at an earlier stage.

23 The position is that the memo 7th January

24 1972, when it comes down to it, was a memo prepared by

25 the Commander of Land Forces, a Major General of the


Page 56


1 British Army, proposing, in peace time, that unarmed

2 civilians should be shot by the army within the

3 United Kingdom. We respectfully say that in the

4 absence of somebody explaining to us why it would not

5 be the case that it is absolutely extraordinary that

6 a memo to that effect does not require a response in

7 writing, in fact does not require a response at all.

8 It seems to us, therefore, that it is

9 necessary, if one is to accept that, that at the very

10 least one has to understand why it is that a memo

11 suggesting that unarmed civilians should be shot by the

12 army within the United Kingdom, why such a suggestion

13 from a most senior officer within the army would not

14 require some kind of response, whether in writing or

15 otherwise.

16 LORD SAVILLE: I follow what you are saying

17 in one sense, but from whom are you expecting this

18 response?

19 MR MORGAN: That touches to some extent --

20 the response, in terms of the memo, one would have

21 expected from the person to whom it was written,

22 General Tuzo. The response as to whether or not as

23 a matter of practice such a memo would require a verbal

24 or written response --

25 LORD SAVILLE: Sorry, Mr Morgan, it is


Page 57


1 undoubtedly my fault: are you referring to what you

2 suggest must have been contemporary responses?

3 MR MORGAN: Yes.

4 LORD SAVILLE: I follow, I am sorry. I think

5 I had slightly misunderstood you, yes. Of course we do

6 have a statement from General Ford which addresses this

7 memo, do we not?

8 MR MORGAN: Yes.

9 LORD SAVILLE: You are talking about the

10 absence of contemporary documents commenting on that

11 memo?

12 MR MORGAN: Exactly. What I am really

13 getting at is: if one is to accept the proposition that

14 there were no such documents, then it may be one

15 actually needs to find out from somebody who may know

16 the answer as to whether or not that is something that

17 one could accept might have happened.

18 In other words, that brings us back to an

19 issue which was raised and considered by the Tribunal

20 back in June, which is the question of whether in

21 relation to discrete matters it may be of advantage to

22 obtain the advice of a military expert, because one

23 imagines there must be a process of procedure in

24 relation to the passage of documents between senior

25 members of the army, and it is difficult to imagine


Page 58


1 that it would not be helpful to have somebody explain

2 to us why it is that such documents do not get

3 a response, or more importantly to explain to us, well,

4 such documents must get a response, so that we can

5 investigate where the response is and why everybody

6 seems to have forgotten it.

7 MR TOOHEY: You seem to be saying two things,

8 Mr Morgan. One is that a response from someone might

9 have been expected and it would be important to know

10 whether there was a response, and from whom. The other

11 aspect is: response or not, to whom would this

12 memorandum find its way.

13 MR MORGAN: I am not sure that I am --

14 I accept that is a subject for enquiry and to some

15 extent I believe Lord Gifford has taken that up in his

16 analysis yesterday. Really the point I was making was

17 this: if we are faced with evidence that there was no

18 response and we are therefore to accept as accurate the

19 proposition that there was no response and that is

20 simply what occurred, the point that I make is that at

21 that stage one would then, in my respectful submission,

22 want to establish: is that something which was in

23 accordance with procedures, because if it was not in

24 accordance with procedures, then a line of inquiry

25 would open up as to why those procedures were not


Page 59


1 followed. That is really the point I am trying to get

2 to, sir.

3 It is relevant also in my respectful

4 submission because there are at least two casual

5 references to the contents of the memo 7th January 1972

6 to be found in other parts of the papers. I do not

7 intend to open those again, but I will identify them.

8 One is the reference by General Tuzo at the

9 GSC meeting on 13th January, and the second is the memo

10 27th January 1972 by Colonel Dalzell-Payne where he, in

11 the course of his recommendation as to tougher action,

12 makes it plain that "shoot to kill" may be a necessary

13 response having regard to the limited capacity of the

14 army to deal with the issues they have to face.

15 If you do not mind, sir, I will look at that

16 latter point. It is to be found at G82.519. One sees

17 that this memo was written on 27th January 1992. The

18 recommendation is at 14:

19 "We must accept that the current force level

20 cannot be appreciably increased merely to impose a ban

21 on marches. If we accept that the ban must continue,

22 we are left with two possible courses of action,

23 besides speeding up legal proceedings:

24 "(a) an extension of the ban to include all

25 public meetings.


Page 60


1 "(b) additional measures for the physical

2 control of crowds which threaten to march.

3 "15. The only additional measure left for

4 physical control is the use of firearms, i.e. 'disperse

5 or we fire'. Inevitably it would not be the gunmen who

6 would be killed but innocent members of the crowd.

7 This would be a harsh and final step, tantamount to

8 saying 'all else has failed' and for this reason must

9 be rejected except in extremis. It cannot, however, be

10 ruled out."

11 That raises the question of whether one is

12 expected to accept that it was a mere coincidence that

13 General Ford, on 7th January, and Colonel

14 Dalzell-Payne, on 27th January, are discussing the same

15 issue, but that there was no indication from one to the

16 other, or process from one to the other whereby one

17 knew what the other was thinking.

18 We respectfully say that one needs to

19 understand the processes to make sure that one gets

20 a proper understanding of what exactly happened to that

21 memo, which certainly appears to have disappeared into

22 the blue horizon.

23 The third point of concern I wish to draw to

24 the Tribunal's attention -- the next number of points

25 relate to the question of statements that are not


Page 61


1 available. The first bunch of statements to which we

2 draw attention are those of certain critical

3 politicians. Mr Hume, who was the MP for the area and

4 who clearly had an understanding that there was likely

5 to be violence on the day.

6 Dr Paisley --

7 MR CLARKE: Mr Hume's statement is in the

8 bundle.

9 MR MORGAN: I am sorry, I apologise for

10 that. Maybe I can be helped with the other two.

11 Dr Paisley, who as I understand it --

12 MR CLARKE: Not in the bundle. Declined to

13 assist so far.

14 LORD SAVILLE: Mr Paisley has been approached

15 by us. He has declined to assist and the question will

16 arise in due course as to whether his evidence or the

17 evidence he might give is so important that if he

18 continues to decline he should be subpoenaed to appear.

19 MR MORGAN: The third person to whom the same

20 consideration I now understand applies is Mr Taylor.

21 I note yesterday Mr Clarke helpfully intervened to

22 indicate that the Tribunal had been seeking to make

23 contact with Mr Taylor, but as I understand it had so

24 far failed to make contact.

25 MR CLARKE: No reply to letters, is the


Page 62


1 answer.

2 LORD SAVILLE: Did you hear what Mr Clarke

3 said then? We have so far received no reply to our

4 letters.

5 MR MORGAN: I understand that the Tribunal

6 will pursue, insofar as it is appropriate to do so,

7 those matters. Again, I am simply indicating that they

8 are there as matters of concern.

9 The next statement is that of

10 Colonel Wilford. In my respectful submission the

11 position in relation to that is rather different. We

12 would draw attention to the ruling, as we understood

13 it, that was made by the Tribunal on 15th June this

14 year, at Day 35 of the Inquiry. I am not sure whether

15 it is possible to turn up the record of the hearings,

16 but at page 5 of the written record, the question arose

17 as to the provision of the statement of

18 Colonel Wilford.

19 MR CLARKE: I wonder if it might help. We

20 have now received the statement of Colonel Wilford, and

21 subject to checking, which has to be done by more than

22 one person, as to the quality of the redaction of the

23 names, and subject only to that, it is now available

24 for distribution, it having been received very recently

25 indeed.


Page 63


1 MR MORGAN: The reason that I have drawn

2 attention to the ruling was that my understanding was

3 that the statement in its unredacted form was due to

4 have been distributed by on or about 30th July, or

5 thereabouts. Insofar as Sector 2 is concerned, the

6 statement of Lieutenant N, who was responsible for

7 Mortar Platoon, who was the person who apparently

8 briefed them prior to their arriving in Derry on the

9 day, who apparently on one view may have fired the

10 first shots from Mortar Platoon, has, as we understand

11 it, not been provided, nor do we know when it is likely

12 to be provided.

13 I do not know whether there is any assistance

14 available in relation to that.

15 MR CLARKE: The position is that Lieutenant

16 N's statement is still in draft and he has still not

17 signed it. That is all I think I can helpfully say.

18 LORD SAVILLE: Who represents Lieutenant N?

19 MR GLASGOW: I do. Could I conveniently help

20 you on both matters, simply to add, not in any sense to

21 disagree, but to add to what my learned friend

22 Mr Clarke has said, first about Colonel Wilford.

23 I would like the Tribunal to know that his

24 statement was returned on the date when I gave the

25 undertaking that it would be returned. I cannot give


Page 64


1 the precise date for Lieutenant N's statement, but the

2 problem has been communication between Eversheds and

3 those instructing me, one of the teams instructing me,

4 as to whether or not those statements contain all of

5 the things -- contain all the statements that were

6 referred to in the interviews.

7 That is a process that was only raised

8 comparatively recently and I believe now has been

9 sorted out, but I am afraid I do not have the person

10 physically sitting behind me at the moment who has been

11 dealing with them. I can certainly clear it up over

12 the sort adjournment, if you wish me to.

13 I am sure Mr Clarke will confirm

14 Colonel Wilford's statement was returned on the date

15 that I gave an undertaking to you that it would be. If

16 I can help further, of course I will try to, sir.

17 MR MORGAN: The reason I raise these, sir, if

18 one looks at page 8 of Day 35, one sees what we

19 understood to be a ruling that if the statements had

20 not been completed by 30th July, that the drafts were

21 to be provided.

22 We do not understand why the drafts have not

23 been provided and we respectfully say that there may

24 not be a point of substance here, but there is

25 certainly a point of perception, in terms of our


Page 65


1 clients' perception on whether or not they are playing

2 on a level playing field. Again, I do not mean this to

3 be a criticism, but I do draw attention to it because

4 it is a matter of concern.

5 LORD SAVILLE: I can understand it is

6 a matter of concern, Mr Morgan. You will appreciate in

7 turn, among other things, the process of redaction is

8 incredibly time-consuming. It has to be done by at

9 least two people and even then there have been

10 unfortunate slip-ups.

11 In addition, of course, there are many other

12 statements that are going through the same process.

13 All I can do is to try and assure you and your clients

14 that, from the point of the view of the Inquiry and its

15 staff, we are doing our very best to redact these

16 statements, to get them into their final form and to

17 get them out to everybody as soon as we possibly can,

18 and those efforts will continue.

19 I do not think -- I am not sure you are

20 suggesting this, I do not think there is any substance

21 in the suggestion that there is some form of secret

22 agenda to hold these up. If we became aware of any

23 such secret agenda, first of all we would react fairly

24 violently, as the Inquiry requires this information,

25 and secondly, I suspect we would probably make public


Page 66


1 our disquiet of any such procedures.

2 I think everybody at the moment, on my

3 information, is doing his best to produce these

4 statements, and indeed many other statements, as soon

5 as possible.

6 MR MORGAN: I am grateful for that

7 indication, sir, because there is no doubt that one of

8 the perceptions of the deficiencies of the

9 Widgery Tribunal was that the civilian witnesses

10 perceived that they were required to give their

11 evidence first and that the army witnesses then had an

12 opportunity, if they wished to take it, to tailor their

13 evidence in whichever way they wished.

14 My clients, one of whom did give evidence

15 before Widgery, is anxious to ensure that he is

16 satisfied in his own mind that nothing of that sort is

17 going to occur in this instance. If I could put that

18 in practical terms, it would, in our respectful

19 submission, not be an acceptable state of affairs for

20 our client, for instance, to give evidence in relation

21 to the events of Sector 2 before the statement from

22 Lieutenant N, who is the person that he believes

23 actually fired the shot at him, was available to him

24 and there is a timing issue, in my respectful

25 submission, involved there, which one will have to be


Page 67


1 careful about.

2 You are right, sir that there is the risk of

3 the perception, not that the Tribunal is doing

4 everything that it can and ought to ensure that these

5 statements are made available, but that those who are

6 providing the statements are exploiting the

7 opportunities given by the Tribunal and I am glad for

8 the indication from you that you certainly have no

9 reason to think that that is happening.

10 LORD SAVILLE: I think it was right for you

11 to say what you have just said, Mr Morgan, and no doubt

12 those responsible for the production of that statement

13 and indeed the Inquiry and its staff will take due note

14 of what you have just said.

15 MR CLARKE: Could I perhaps make plain, the

16 position is slightly the opposite from what my learned

17 friend fears. Colonel Wilford's statement was returned

18 by the day on which he undertook to return it in

19 a signed form, but a question then arose, raised by the

20 Inquiry, as to whether the statement ought to include

21 other material. A similar process arose in relation to

22 Lieutenant N. So what in those two instances has

23 delayed the production of the final statement are

24 concerns raised by the Tribunal as to whether they

25 dealt with all the matters they should deal with,


Page 68


1 rather than anything else.

2 MR MORGAN: I am grateful for that.

3 There was one other matter on which Mr Clarke

4 helpfully intervened in relation to the statement from

5 Mr Hume. We believe that the statement which is

6 provided is an old statement. We do not believe there

7 is an Eversheds statement --

8 MR CLARKE: KH8, taken by Eversheds.

9 MR MORGAN: I am grateful for that, I will

10 obviously check that that is the case: that is an old

11 statement. If there is an Eversheds statement, I think

12 we would be glad for it.

13 LORD SAVILLE: There certainly is an

14 Eversheds statement, but where it is at the moment I am

15 not sure.

16 MR CLARKE: I can understand my learned

17 friend's puzzlement, because there is an Eversheds

18 statement which I have seen and which I have caused to

19 be inserted in my bundle, but I see that it does not

20 have a bundle stamp on it. In other words, I put it in

21 my bundle as soon as I received it, anticipating it

22 would end up there in due course, but if I have not got

23 a stamped version, the likelihood is others do not have

24 the stamped version, which means it is in the course of

25 circulation and if and insofar as I suggested it was


Page 69


1 already there, I was wrong. But it exists, and will

2 come forward in the ordinary process.

3 LORD SAVILLE: Again, Mr Morgan, those

4 responsible for putting it into our database will no

5 doubt have heard what you said and if it was important

6 for you, or indeed anyone else, should see that

7 statement straightaway, no doubt we will provide you

8 with a printed copy.

9 MR MORGAN: I am grateful for that

10 clarification, sir.

11 Can I seek to explain, if you like, at least

12 sort of part of the basis that our clients have in

13 relation to this question of statements that take some

14 time to come forward. I can maybe best do that by

15 reference to JM38.19. This is a portion of a report

16 made by Detective Inspector McNeill to his

17 Superintendent at Victoria Barracks, RUC, 23rd March

18 1972, in relation to the investigation of the events of

19 Bloody Sunday and the associated Widgery Inquiry. In

20 paragraph 8 he says:

21 "In the days following 30th January 1972, the

22 army co-operated in the supply of information and

23 statements but this ceased and I was only supplied with

24 a series of initial statements from the soldiers who

25 actually fired weapons. These statements were very


Page 70


1 brief and I prepared a schedule based on them for our

2 own information, to try and identify the killed and

3 wounded with a particular soldier. In following the

4 evidence given by soldiers to the Tribunal I discovered

5 that the letters allocated to the soldiers' statements

6 had been rearranged and they did not correspond.

7 I have asked the SIB to supply me with a copy of the

8 correctly lettered statements submitted to the

9 Tribunal, which contain more detail. To date I have

10 not received these statements. In some cases the

11 evidence given by the soldiers did not tie up with

12 original statements, i.e. in some cases the actual

13 number of rounds fired."

14 The reason I do this, sir, is to indicate

15 that is the basis or the starting point, as it were, in

16 relation to my clients, in relation to co-operation

17 that they are expecting or are concerned about in

18 relation to the military witnesses.

19 If it is the case that those concerns can be

20 allayed by keeping people informed about the state that

21 we have reached in relation to outstanding statements,

22 then in my respectful submission, subject to not

23 imposing undue burdens on the Tribunal, I respectfully

24 say one can see the advantage of ensuring that that is

25 done.


Page 71


1 LORD SAVILLE: I understand that request,

2 Mr Morgan. I hope to a degree at least we have managed

3 to allay some of those concerns this morning. You are

4 perfectly at liberty to raise them as you have done,

5 either in this hall or by letter to the Tribunal's

6 staff. We would hope that you would continue to do so,

7 because it does seem, at least in relation to some of

8 the concerns you have expressed, that they are in fact

9 capable of being readily allayed.

10 MR MORGAN: I believe that to be the case.

11 We have obviously raised the issue in correspondence in

12 relation to some at least of these statements, sir.

13 Can I say that the other invitation we would

14 make to the Tribunal in terms of demonstrating the

15 level playing field, is that it would in our respectful

16 submission be of considerable assistance if the

17 Tribunal were at this stage, having given a list of the

18 civilian witnesses that it is proposed to call and the

19 order in which it is proposed to call them, to proceed

20 to indicate through the Tribunal what is proposed in

21 relation to the remainder of the witnesses.

22 I understand that on the Internet that

23 information has been made available in relation to the

24 order in which it is proposed to call the witnesses,

25 civilians, politicians, military witnesses et cetera.


Page 72


1 But it is my respectful submission that we must surely

2 now be reaching the stage where it will be possible to

3 identify, in terms of the military witnesses, who is

4 going to be called in relation to what and what the

5 order is.

6 The reason that I put that before the

7 Tribunal is that it will assist in allaying any concern

8 that there are different rules in relation to the

9 soldiers as compared to the civilians. There is

10 a perception that there needs to be a form of equality

11 if people are to retain the confidence, which

12 undoubtedly the Tribunal has engendered by virtue of

13 the enormous amount of work and effort and skill which

14 has been put into what has happened so far.

15 These suggestions are made in an attempt to

16 helpfully assist the Tribunal in terms of its thinking

17 about what it might do and ways in which it might

18 continue to retain the support of those who are

19 participating.

20 LORD SAVILLE: I think I can say

21 straightaway, there is no such thing as different

22 rules. There is one basic rule, which is that we

23 propose to call to give oral evidence those witnesses

24 who we think, for one or other reason, can materially

25 add to the Inquiry by being required to come here and


Page 73


1 answer questions.

2 As to publishing proposed names and the order

3 in which they should be called, Mr Clarke will no doubt

4 be able to tell us in a moment how far he is getting,

5 but I am well aware that he and his team of course are

6 continuing to work on this although of course, so far

7 as soldiers are concerned, we are still looking many,

8 many months away.

9 MR MORGAN: I accept that is right, sir.

10 I simply alert you to the fact that this is something

11 which is in the minds of my clients and I am sure in

12 the minds of others.

13 LORD SAVILLE: It is of course in our minds

14 as well, Mr Morgan. I wonder if Mr Clarke can help us.

15 MR CLARKE: There is absolutely no question

16 of applying a different rule to the soldiers to that

17 which applies to the civilians, or indeed any witness.

18 What I have in mind at the moment is I in due course --

19 I will explain what "due course" means shortly --

20 intend to produce, as I have in relation to all

21 civilian witnesses, a list of those police witnesses,

22 those military witnesses and those official witnesses

23 whom I propose should be called orally and those whose

24 evidence I propose should be read.

25 My intention is to follow exactly the same


Page 74


1 procedure in relation to those witnesses as in relation

2 to the civilian witnesses, namely to afford the

3 opportunity of people representing somebody who I think

4 does not have to be called to say they should be called

5 and giving reasons for that request.

6 When we did that in relation to the civilians

7 I was persuaded as to the case in relation to a number

8 of the witnesses and in the end there was in fact no

9 remaining dispute in relation to civilian witnesses.

10 Should there be any irresolvable dispute, then the

11 Tribunal will have to rule upon the question.

12 As to when that will take place, I am sure my

13 learned friends will understand this is really quite

14 a time-consuming procedure. There are something like

15 750 soldiers' statements at the moment. I myself have

16 not read all of them; there are others coming in and

17 the production of a list with references and an

18 indication of whether they will all be called or not

19 requires reading all of them and making a judgment and

20 setting it out in tabular form, in a form which

21 contains about 2500 individual box entries. We will,

22 of course, do this when we can.

23 It will not be soon because, as you, sir,

24 have observed, we are not going to get to a soldier

25 witness for a considerable time and there is a very


Page 75


1 great deal to do in relation to all other witnesses.

2 But it will be in sufficient time so that people can

3 see what the order is and so that people can make

4 representations that witnesses should be called who are

5 not scheduled to be called. It will therefore be some

6 time next year. It may come in stages.

7 I can say that I should be surprised if

8 I were to reach the conclusion not to call any of the

9 members now available to be called of Support Company

10 other than those, if any, who plainly played

11 a peripheral role. There may be a number of soldiers

12 not in the 1st Battalion of the Parachute Regiment whom

13 it is quite inappropriate to call to give oral evidence

14 and there are some in relation to whom a more difficult

15 judgment will have to be made, but that will be done in

16 due course, in due time and there will be an ample

17 opportunity to influence the result.

18 MR MORGAN: I am grateful for that, sir.

19 I suppose all I really want to draw to the Tribunal's

20 attention is that although I understand the commitment

21 is made to ensure that there is an opportunity to make

22 representations before the military witnesses are

23 called, I have to say that my clients' perception of

24 the likely co-operation from the MoD is such that it

25 would be helpful if it were the case that the witnesses


Page 76


1 likely to be called were identified by the time they

2 were coming to give their evidence about the events in

3 question. I simply alert you to the fact that that is

4 the position and there is nothing that I can do to

5 change that.

6 LORD SAVILLE: I am sorry, you say "if it

7 were the case that the witnesses likely to be called

8 were identified by the time they were coming to give

9 their evidence about the events in question".

10 Mr Clarke has just told you they will be identified

11 very substantially before that time.

12 MR MORGAN: I understand that. The point

13 I am making, sir, I am talking about whether they are

14 going to be identified before my clients are due to

15 give evidence before this Tribunal, because they at

16 that stage will want to find themselves in a different

17 situation from Widgery, in Mr Bridge's case, when he

18 gives evidence, not knowing who else on the military

19 side is likely to give the evidence.

20 I alert you to the fact and no doubt you will

21 take it on board and give it what weight you wish, to

22 the fact that if by the time he comes to give evidence

23 that he still does not know which military witnesses

24 are to be called and which are not, other than in

25 a general way, then I perceive that that is something


Page 77


1 that he will find unsatisfactory. Whether or not you

2 take that on board or not is a matter for you, sir.

3 LORD SAVILLE: That may or may not be

4 possible, but of course you and your clients will

5 appreciate that the written statements of these

6 individuals will certainly be available and the

7 Tribunal equally appreciates that there may well be

8 situations arising where a decision not to call

9 a particular witness to give oral evidence is reversed

10 because of a new situation.

11 MR MORGAN: Yes.

12 LORD SAVILLE: I do not think we could give

13 you any undertaking that we will be able to identify

14 all those who we think should give oral evidence at any

15 particular stage. We will do our best to do it as

16 early as conveniently possible, but I repeat, the

17 written evidence will be available.

18 MR MORGAN: I accept that, sir, and I do not

19 believe I can take this matter any further.

20 Can I finish by saying that I represent two

21 clients who, in their early to mid-twenties, were shot

22 by the army in circumstances where they were expressing

23 their distress and outrage at the shooting of Mr Duddy,

24 a man who in fact was known to both of them.

25 They have remained under a cloud as to


Page 78


1 whether or not they were engaged in nail bombing or

2 petrol bombing or matters of that kind, despite the

3 fact that there was no police investigation, there was

4 no forensic analysis. Mr Bridge gave evidence in

5 relation to the Widgery Tribunal and yet his evidence

6 merited effectively not a mention nor a consideration,

7 and they have waited, like many others, for the

8 opportunity to come to this Inquiry, first of all in

9 their case to seek vindication and, secondly, to seek

10 an explanation of the events which occurred, like many

11 others who are here.

12 We certainly intend to work, insofar as we

13 can, to assist the Tribunal with exploring and

14 achieving that explanation and we suspect that there is

15 much work to be done on all sides if in fact the

16 objective which is to explain with a view to allay

17 public confidence is in fact to be achieved. There is

18 nothing further, sir.

19 LORD SAVILLE: Thank you very much,

20 Mr Morgan.

21 Opening Submissions by MR MANSFIELD

22 MR MANSFIELD: Nearing, as you will now

23 obviously perceive, the end of the representations

24 being made on behalf of the families, I appear together

25 with John Coyle for Barney McGuigan and his family, who


Page 79


1 was killed in Sector 5.

2 I come last because in fact he almost

3 certainly was the last person to be shot dead on that

4 fateful day. However, not far away and, as we will

5 see, photographically literally at one stage only paces

6 away, was another family whom I represent, that is

7 William Nash, who was killed at the barricade, and

8 Alexander Nash, who was his father, who was wounded at

9 the barricade and they are in Sector 3.

10 Finally, but by no means least, Daniel

11 Gillespie, who was wounded in Sector 4, which is

12 Glenfada Park North. In relation to both those two

13 families, not only do I represent them but also Kieran

14 Mallon, who sits alongside.

15 You have heard a morass of detail and you

16 have a morass of documents which is very clearly set

17 out behind you as well as the technology, but we hope,

18 in an endeavour both to shorten matters today, and

19 I have given an undertaking I will finish today, and

20 also hopefully as a framework for the future, what we

21 have done is to compile two files. So I hope you have

22 had an opportunity at least to have them in front of

23 you, and may I just pause ...

24 We searched in vain for a colour you have not

25 already got. The rainbow has been pretty well


Page 80


1 exhausted and I am afraid we have come up with the

2 clerical colour of purple. That is not to associate

3 ourselves with the priest files necessarily, but it was

4 one that seemed less popular than others. May I pause

5 for a moment. (Pause). I see only one at the moment.

6 There should be one that relates to Barney McGuigan and

7 the other relates to the two Nashs and Danny

8 Gillespie.

9 MR HOYT: It is the latter one that I have.

10 LORD SAVILLE: We all have the two Nashs and

11 Daniel Gillespie.

12 MR MANSFIELD: May I pause, there should be

13 another one, it was brought up yesterday, it has been

14 scanned. May I immediately apologise to other parties,

15 in fact they will, should they so desire, have copies

16 of this. In fact all the material that is in these two

17 files everyone already has in one file or another.

18 What we have tried to do here was to bring together in

19 the two separate files the most material and relevant

20 documents so that it should avoid, so far as it is

21 necessary, traipsing through different files to try and

22 put it together.

23 We apologise to others, as you may see it has

24 been quite a task to do this ready for today and it was

25 done because it was obviously perceived that you have


Page 81


1 had so much material.

2 May I take the McGuigan file first, just to

3 indicate, so everybody knows what is in it and if they

4 wish to have copies, we will have them made.

5 There is an index at the front of that file

6 which indicates that what we have done is to put in the

7 file the synopsis that I drafted in relation to all the

8 families, which everyone else has in the -- that was

9 served earlier on in the year and to which I will be

10 making reference early on. I will not be going through

11 all of it because some of it has already been mentioned

12 and I am going to keep to the undertaking not to repeat

13 matters, so far as I can, that have already been

14 developed.

15 The second heading is transcripts. What we

16 have put in there are excerpts from Mr Clarke's opening

17 to you that are relevant to, in this case, Bernard

18 McGuigan and primarily Soldier F, because of all the

19 candidates who may be responsible for his death, he is

20 can candidate number one.

21 Then we have a section of family photographs,

22 one of which will be screened in a moment, and then

23 family statements from his wife and his eldest son.

24 We have then put in a route map, by which we

25 mean we have reconstructed so far as is possible from


Page 82


1 the statements available to you and everyone else, the

2 movements of Mr McGuigan on that day. The object there

3 of course is to indicate, as has been asked of others,

4 clearly what he was doing and where he went and so on,

5 which may be of assistance to know that.

6 The difficulty of course, in many of these

7 cases, particularly in his case, a very large number of

8 statements of people who saw him on the day at

9 different stages. We have only selected one or two,

10 those who were close personal friends of his. However,

11 there are in all nearly 400 statements that deal with

12 Mr McGuigan at one stage or another. So the task of

13 selecting the most relevant has been reduced to this

14 one file.

15 Then we put in the statements, therefore,

16 upon which the route is based, at divider 6. We put in

17 statements of those who saw Mr McGuigan just before he

18 was shot, and statements of some of those who saw him

19 just after he was shot and then a series of photographs

20 that you have already seen, but we have put them all in

21 the one bundle, identifying Mr McGuigan and, finally,

22 the soldier who is most relevant, his statement, Lance

23 Corporal F, or his many statements in his case, and

24 a rather graphic description from Lieutenant 227, who

25 was up on the walls at that observation point, and who


Page 83


1 we say undoubtedly saw the killing of Bernard McGuigan.

2 That is the style of the file, if I could put

3 it that way. The other one, that is relating to the

4 Nash family and the Gillespie family, is in very much

5 the same form.

6 The only difference in their case is that

7 there are not so many civilian witnesses who speak

8 about their movements. There are many family

9 statements -- it is a large family -- about the

10 movements on the day. Also my learned junior has

11 contrived a map of the combined movements of the two

12 families, which is there to be seen and I will refer to

13 it later, statements of the family, statements of the

14 soldiers most relevant, P for example being most

15 relevant to William Nash and the barricade.

16 In this case, rather than transcripts of the

17 opening, we have put in the summaries that Mr Clarke

18 and the Tribunal very helpfully provided that relate to

19 the barricade, in particular where William Nash and

20 Alexander Nash are both referred to, as well as

21 a summary, it is right at the end of this second purple

22 volume, of Sector 4, which gives an overview.

23 So rather than put in a large number of pages

24 of transcript all the way through, we have done it in

25 that way. We have hoped that might provide a focal


Page 84


1 point or an useful framework for you, sir, in the

2 coming days when you will be hearing witnesses who

3 relate to this and it will save perhaps undue exercise

4 in trying to, as it were, cull the material from

5 different sources.

6 That is the basis upon which we are going to

7 work. May I say before lunch today, may I begin the

8 remarks that I would wish to place before you in

9 relation to all these families: in another context, the

10 context of contemporary politics and conflict in the

11 north of Ireland and, it has been said, in relation to

12 South Africa and it has been said in relation to Chile,

13 but it is an important phrase, an important

14 observation, that you will never have peace unless you

15 have justice, and you will never have justice without

16 truth.

17 Those words have been uttered on many

18 occasions, but in the case of the families I represent

19 peace in a sense for them is not only the general peace

20 that everyone hopes will descend upon the north and

21 continue in the north in the years to come, but a much

22 more particular peace, peace of mind for them.

23 That peace of mind can only be derived from

24 a recognition on all fronts, and in particular by the

25 perpetrators of what happened on that day,


Page 85


1 a recognition that those who -- and you now have had

2 a summary over a number of days -- those who were in

3 fact killed and wounded that day, particularly those

4 who were killed, were killed and wounded without any

5 conceivable justification and that that lack of

6 justification has to be seen in the context, not just

7 of the person who pulls the trigger, it is too easy, as

8 it were, just to concentrate on the end of the barrel,

9 the real question of course is: who put them in the

10 position of pulling the trigger; who allowed this to

11 happen?

12 The recognition that those who were killed

13 and wounded were done an injustice in a sense has only

14 just begun. May I just refer back to the foundations

15 for this very Inquiry, part of which has already been

16 referred to, and that was the opening debate in the

17 House of Commons on 29th January 1998. There were two

18 major reasons why this Inquiry exists, why this Inquiry

19 was set up, why we are all here. One Mr Harvey

20 mentioned this week and we have cited it in argument

21 before, was the way in which the families and the

22 dignity of the families and their desire not to seek

23 revenge or recrimination, but for the truth. That was

24 one, a dignified search for the truth.

25 But there was another. May I just cite what


Page 86


1 it was, because during the debate the Prime Minister

2 was challenged about the aspect of innocence. The

3 Prime Minister said this, and it is quite clear it

4 became central to his thinking, central to our

5 existence here:

6 "May I say" replying to a question "in

7 respect of the circumstances, that one of the

8 difficulties is that it cannot be said that this is

9 a situation in which those who were killed were engaged

10 in illegal activity. It cannot be said because the

11 Widgery Report itself -- this is one of the reasons why

12 I think it is important that we reconsider what

13 happened -- makes it clear in respect of many of those

14 who were shot and killed that there is no suggestion

15 that they were acting illegally.

16 "I went through the report myself in a great

17 deal of detail in respect of the four people who were

18 killed in the Glenfada Park flats. Let me quote from

19 Lord Widgery's conclusions on the evidence. He says

20 'the balance of probabilities suggests that at the

21 time when these four men were shot, the group of

22 civilians were not acting aggressively and that the

23 shots were fired without justification'. That is

24 actually in the Widgery Report. This is not a set of

25 circumstances in which one can say there is a necessary


Page 87


1 correlation between any illegal activity that day and

2 the people who were killed.

3 "That is one of the reasons why it is

4 important to consider the evidence."

5 He returned to that theme towards the end of

6 the debate and put it in these terms again:

7 "There has been much debate about the Widgery

8 conclusions, but even in relation to the

9 Widgery Tribunal's finding of fact it is clear that in

10 respect of many of those who were killed that day there

11 is no suggestion they were involved in unlawful

12 activity. That is why there is a residue of anxiety.

13 People say that if it is accepted that innocent people

14 were killed, is it not right to establish the truth of

15 what happened?"

16 So that second thrust is extremely important,

17 namely a recognition by the Prime Minister in 1998 that

18 there is no necessary correlation between those who

19 died, or for that matter who were wounded, and illegal

20 activity of any kind.

21 May I also indicate and remind everyone that

22 a year after the Widgery Report there was an important

23 judicial finding. In 1973 Her Majesty's Coroner,

24 Mr O'Neill, said this in relation to the inquests that

25 he held in relation to all these deaths, including


Page 88


1 those that I represent. He said these emphatic and

2 prophetic words:

3 "It strikes me that the army ran amok that

4 day and shot without thinking. They were shooting

5 innocent people. These people may have been taking

6 part in a parade that was banned, but I do not think

7 that justifies the firing of live rounds

8 indiscriminately. I say without reservation it was

9 sheer, unadulterated murder."

10 Rather in the same vein as the

11 Widgery Tribunal findings, which in the end were hedged

12 about such that a taste was left in the mouth that

13 those who were shot or wounded perhaps had been up to

14 something at some stage. When the learned coroner said

15 that it sent shock waves once again, no doubt echoing

16 the conversation that you have heard about this morning

17 and on many occasions, and the meeting between another

18 Prime Minister, Mr Heath, the Lord Chief Justice,

19 Lord Widgery and the Lord Chancellor, Lord Hailsham.

20 This is a propaganda war, it is being said, the truth

21 cannot be said in this way, and it is very interesting

22 that after that judgment by the coroner, what

23 happened? They changed the rules, so that coroners

24 after that date were prohibited from making findings of

25 that kind.


Page 89


1 Such has been the anxiety on behalf of the

2 authorities that a recognition that innocent people

3 were killed without justification should not be writ

4 large.

5 Sir, I see it is 12.00, may I return?

6 LORD SAVILLE: Yes, by all means,

7 Mr Mansfield.

8 We will come back at ten to one, please.

9 (12.00 pm)

10 (The luncheon adjournment)

11 (12.55 pm)

12 MR MANSFIELD: Sir, I was dealing with the

13 effective judgment or verdict of the coroner in 1973

14 for which, not only were the rules changed, but he

15 personally was subjected to a campaign of vilification

16 for what he had said.

17 However, we say that he was entirely

18 justified in coming to that conclusion and the

19 justification in a sense can be demonstrated by

20 conjoining two propositions: the first proposition is

21 the one that was stated on Day 1 within the first

22 minute of the opening by Mr Clarke on Monday, 27th May

23 when he said:

24 "It seems clear that most, if not all of the

25 casualties were the result of army gunfire."


Page 90


1 He was referring in particular, of course, to

2 the 13 who had been killed. However, we say the same

3 proposition, that most if not all of those who were

4 wounded, were wounded as a result of army gunfire.

5 I appreciate of course there is a question in

6 relation to Alexander Nash, but most if not all of

7 those who have been identified as being killed or

8 injured on that day came as a result of army gunfire;

9 that is one proposition.

10 If the other proposition is put alongside it:

11 that none of those who suffered injury, whether it be

12 death or bodily injury, were engaged in any activity at

13 any stage that afternoon which merited them being

14 chosen as targets either for death or serious injury,

15 namely, they were innocent victims. Those two

16 propositions, we say, are known and well-known now and

17 have been known for 28 years.

18 The key question -- sir, we have put it in

19 the synopsis at OS32, if that could be brought up on

20 the screen if it is available -- the synopsis that we

21 provided at the beginning. May I read --

22 LORD SAVILLE: We have it in hard copy.

23 MR MANSFIELD: It is for the benefit of

24 others.

25 LORD SAVILLE: The members of the Tribunal


Page 91


1 have it in front of them.

2 MR MANSFIELD: It is those two key questions,

3 which interestingly are questions not dissimilar from

4 questions that were asked by Lord Widgery himself:

5 "Was the deployment -- and in particular

6 obviously -- use of lethal force unlawful, in the sense

7 that it was in excess of the minimum force required to

8 support the civil authority responsible for law and

9 order?"

10 We say that is the first and obvious key

11 question. The second question that flows from that is:

12 if the force was unlawful, how did this come about,

13 namely, who authorised it and for what reasons? The

14 whole of the synopsis is based around that framework.

15 We have since then amplified those questions on a

16 second page.

17 I do not take time over the amplified

18 questions, save hopefully to pose what the real test

19 is. This is under the heading "key questions

20 amplified". The test you may wish to apply, whether it

21 be the Yellow Card or any other instruction giving

22 standing instructions to the armed forces, it all comes

23 down to one thing.

24 MR TOOHEY: What are we looking at at the

25 moment?


Page 92


1 MR MANSFIELD: It is the key questions in the

2 synopsis that are amplified. You will find them in the

3 file at divider 1 behind --

4 MR TOOHEY: I have that, but when you

5 referred to them as "amplified"?

6 MR MANSFIELD: Yes, there is a separate

7 document just behind that in that same divider 1. It

8 is in the McGuigan file. It is in the other one as

9 well, but if I take the McGuigan file, divider 1,

10 behind the synopsis we have amplified the questions.

11 I am only going to, for these purposes, suggest that

12 the test we have put in relation to the use of lethal

13 force effectively incorporates and embraces the law of

14 the land at that time, and for that matter, now:

15 "Was the soldier defending himself or his

16 colleagues against a perceived threat based on

17 reasonable grounds of imminent, serious physical injury

18 or death from the civilian whom he killed or wounded?"

19 I will say it once again:

20 "Was the soldier defending himself or his

21 colleagues against a perceived threat based on

22 reasonable grounds of imminent, serious physical injury

23 or death from the civilian whom he killed or wounded?"

24 We say that is the further key question

25 here.


Page 93


1 MR TOOHEY: Could I ask you, Mr Mansfield,

2 under the key questions in their original form you ask:

3 was the deployment and use of lethal force unlawful?

4 I understand what is being said about the use of

5 force. What about the deployment of force, in what

6 sense is that said to have been unlawful?

7 MR MANSFIELD: This goes back in a sense to

8 question 2, it overlies both questions. If the object

9 of the exercise in the first place was -- we have put

10 it very briefly -- to teach those in the Catholic

11 Bogside/Creggan areas a lesson, I have put it in

12 colloquial language, if the object of the operation

13 necessarily entailed a risk that people who were

14 innocent were killed, and you have been through a

15 number of documents on which that plainly was

16 recognised, that if there was an incursion using force

17 into this area, there was a risk to ordinary innocent

18 civilians.

19 Now if the deployment of lethal force was

20 intended in fact to embrace that risk, then it was not

21 lawful.

22 MR TOOHEY: Yes, thank you.

23 MR MANSFIELD: I pause on that key question

24 because one would have thought that the answer to those

25 questions are truths beyond which we would have gone by


Page 94


1 now; in other words, there would by now have been a

2 recognition -- it is the recognition I mentioned before

3 lunch -- that if most of the injuries, death or

4 otherwise, were incurred as a result of military fire,

5 then what are the military saying about the identified

6 people who were not doing anything that merited being

7 shot other than being there?

8 This is the key question, because what seems,

9 if I can stand back from it for a moment, to be said,

10 but we do not know, and I will turn to the soldiers'

11 submissions in just one moment. What it appears is

12 being said globally, is: we were subjected to a storm

13 of fire which necessitated us using lethal force. What

14 appears to be said is that those against whom we used

15 that force have all disappeared, those victims are not

16 the same victims as the identified group.

17 In other words, there are two groups here

18 which have to be clearly identified, and we say beyond

19 peradventure at this stage, the identified group were

20 unlawfully shot at. The bigger question is: was there

21 ever another group against whom lethal force was used

22 or necessitated because they came themselves under a

23 hail of missiles or weaponry, nail bombs, acid bombs

24 and so on?

25 It is of some concern and some interest that


Page 95


1 this still has not been addressed, in other words, it

2 still has not been recognised that if it was military

3 fire that killed the innocent, why is no soldier

4 effectively recognising that he or his senior officers

5 have recognised, because there has been no

6 recognition.

7 Could you turn to the submissions on behalf

8 of the key soldiers? Whether these will be adopted on

9 Monday, we await with interest to see. They are at

10 OS7.2. Could that be put on the screen, please? This

11 was a skeleton that was submitted towards the end of

12 July this year. It is submitted on behalf of key

13 people in this scenario: Lieutenant N,

14 Colonel Wilford, F and P -- F is relevant to Barney

15 McGuigan; P is relevant to the rubble barricade and to

16 William Nash, and for that matter to some extent to

17 Alex Nash.

18 Of course it is said on behalf of 450

19 individual clients, the points that are being made that

20 I would wish obviously on Monday, if it is possible,

21 and on behalf of the families now, it is not too late

22 for those who pulled the trigger and were responsible

23 for triggers being pulled against innocent people, to

24 say so. One would have thought by now someone would

25 have had the good grace or the courage to face this


Page 96


1 reality, but it is not being faced, and when this was

2 drafted, although we did not have it and although we

3 may have it tomorrow or at least over the weekend, they

4 must have known when this was drafted what

5 Colonel Wilford is saying in his statement, which we

6 hear today, has and was received some time ago.

7 I do not make any complaint about not having

8 it; only that if they have it, they must know what he

9 is saying. Similarly F and P, and of course

10 Lieutenant N.

11 May I make a few observations, paragraph 4:

12 "It is time for the evidence to be given and

13 tested and for it not to be delayed by rhetoric."

14 May I say in that context, it is all very

15 well to say that, particularly when F and P seem to

16 have had a complete loss of memory because, in relation

17 to firing, they no longer remember even firing their

18 weapons. The question that will be posed to them: how

19 often is it that a soldier is placed upon the streets

20 of the United Kingdom and fires against civilians and

21 kills them? One might recognise the difficulty of

22 memory when serving in a foreign theatre of war,

23 whether it be the Gulf War or anywhere else, when it

24 might be difficult perhaps to make a distinction

25 between pulling the trigger on one occasion or another.


Page 97


1 How can it possibly be said that they have

2 forgotten that they killed civilians or how it came

3 about that they did pull the trigger? So testing will

4 undoubtedly be interesting to see, because what we say

5 has happened here: responsibility has been erased and

6 recognition of the truth does seem to be an avenue

7 along which there is a great deal to travel already.

8 However, may I turn to the next paragraph:

9 "5. In general terms, the evidential case

10 which will be advanced on behalf of the clients of

11 Mr Anthony Lawton is that the soldiers reacted

12 reasonably to mob violence and the use of lethal force

13 against them."

14 They are, as it were, resurrecting what they

15 have been saying, we say, as a cover story from the

16 beginning:

17 "The soldiers fired shots at those whom they

18 believed to be threatening them or others -- and not

19 indiscriminately."

20 We accept those last few words. We do not

21 suggest, on this occasion, that soldiers who used

22 lethal force did so indiscriminately, oh, no; they took

23 aim; they took aim with weapons that kill and were

24 intended to kill. The question is: who are the people

25 whom they believe were threatening? We come to that in


Page 98


1 a lower paragraph:

2 "There was no executive or other policy to

3 teach the IRA or Bogsiders a lesson".

4 Plainly, they have not listened to the video

5 in which Lieutenant Colonel Wilford virtually says as

6 much. However I pass over that; we wait to see what

7 Colonel Wilford says was in his mind on the day, if he

8 can remember:

9 "7. Those clients who fired live rounds

10 aimed and shot at, and only at, those whom they

11 believed to be gunmen or nail bombers threatening

12 lethal violence to them or to others."

13 I pause: so who killed those who were engaged

14 in no illegal activity at all? Someone knows, and we

15 ask again, those who know should break ground at last

16 because the families are not looking for recrimination;

17 they are not looking for vengeance; they are looking

18 for their own memories to be at last, as it were,

19 erased for them.

20 Interestingly, the second half of this

21 paragraph says:

22 "However, it does not follow that those who

23 have been identified as having been killed or wounded

24 on 30th January 1972 were themselves gunmen or nail

25 bombers."


Page 99


1 Well what does that mean? It is not saying

2 that the military killed them, or is it saying the

3 military did kill them but they were not gunmen and it

4 was not justified, or are they saying they were not

5 gunmen but they were near people who were gunmen? What

6 is being said?

7 One might have thought at this stage one

8 would have had a clear indication, and one asks for it

9 on Monday, of exactly what the soldiers are saying, not

10 all 450 but the selected key ones, and in particular

11 the senior officers who were in charge on the day.

12 I do not go through the other openings

13 because in fact they do not bear upon so much the

14 particular key soldiers with which I am concerned for

15 those I represent. Returning, as it were, to the key

16 question and the recognition of the truth, as it were,

17 of what happened. We should be moving into the arena

18 of how did these unlawful killings and injuries occur;

19 why were they occasioned in this way?

20 However, it seems we have to tread through

21 the foothills of truth first of all to even get to that

22 stage, and I hope that perhaps those foothills will be

23 made easier by what is said on Monday and by what the

24 soldiers themselves say. They have already been

25 granted anonymity, they are already asking not to come


Page 100


1 here to give their evidence. How much protection do

2 they want before they will finally admit the truth, or

3 is it in fact they are never ever going to be prepared

4 to admit it?

5 It is of some interest that the first glimmer

6 of a recognition of truth has come about, not because

7 they have revealed it -- and I do not ask for it to be

8 played, I do not ask you to look it up again -- it has

9 already been played and referred to on more than one

10 occasion, but that, if we may say so, stunning

11 tape-recording on the day between undoubtedly an

12 English soldier and another voice, indicating that the

13 operation has gone badly wrong; the other voice is

14 virtually saying, so what, but it continues "it has

15 gone badly wrong because we have shot the wrong

16 people".

17 All we can say is: at last somebody has been

18 prepared to reveal the truth, although not by the hand

19 of those who perpetrated it in the first place.

20 We say the factors bearing on these, I am

21 afraid, the foothills of truth, in other words the

22 factors that bear upon murder, unlawful killing, we

23 have set out in the synopsis. I am only going to

24 select a few of the factors.

25 One of the major factors that you may feel is


Page 101


1 appropriate and is obvious is that, if it can be shown,

2 without question, and we say it can, that none of these

3 people who were injured that I represent ever presented

4 a target worthy of being shot at for any reason at all,

5 then we await, as we say, who it was who caused these

6 injuries and for what pretended reason is it going to

7 be suggested.

8 May I deal, therefore in this context first

9 of all with Barney McGuigan as a target, because

10 perhaps amongst all the images, as Mr Harvey outlined

11 at the beginning of last week, his is one of the

12 abiding images, one of those images that encapsulates,

13 with blood on the pavement, encapsulates what truly

14 happened that day, because he represents an honest,

15 committed, responsible community, he himself and his

16 family.

17 Could we have Q6, please, on the screens?

18 Sir, you have in the divider, but we will put it on the

19 screen so everybody has it, you have a plan in the

20 McGuigan file at divider 5 which hopefully has been

21 marked up. I start with where they live, the McGuigan

22 family first of all. It is now being marked on Q6 in

23 blue. It is in pink on the diagram that you have.

24 They lived at number 20 Innisgowan Crescent.

25 Could we have photograph OS2.20, please? That is


Page 102


1 Barney McGuigan obviously before the fateful day. He

2 was aged 41. At the time of his death there were six

3 children, many of whom are here today: Charles, 16,

4 Margaret, 13, Bernard, 12, Alice, 9, Bridie, 8 and

5 Garvan, 6. The statement of Charles McGuigan is in the

6 bundle. I do not ask you to look at it, in fact he did

7 not go on the March. He was told not to go on the

8 march. In fact he did go down to the vicinity and he

9 too became a victim; he was shot at and he will

10 describe what happened in his own words.

11 However, that was the family; a law-abiding

12 family, in fact far more than that. Mr McGuigan

13 represented everything that is in a sense the

14 antithesis of Lieutenant Colonel Wilford's view and

15 General Ford's view of the Creggan and the Bogside. He

16 was not a member of any paramilitary organisation; he

17 was not a member of any political organisation that

18 might be allied to such organisations. I am only going

19 to summarise the statements of which I have already

20 indicated there are hundreds.

21 He was a respected and sometimes called

22 "community man". He was not only honest and decent,

23 he was quiet, friendly, generous, hard-working

24 conscientious and responsible. In fact he embodied

25 perhaps the humanity of life, even in the midst of the


Page 103


1 trouble that his family had faced, living there next to

2 the cemetery. He was a painter, as you will see in the

3 picture, by trade. In fact the week before he had

4 decorated Teresa Harkin's house and during that year,

5 for those who could not afford it, he had helped to

6 engrave marble headstones in the city cemetery not far

7 from where he lived.

8 He also worked with a local school. I wish

9 to read one document in a moment to help to stamp out

10 vandalism, vandalism that was not only attacking their

11 community by young people who were unemployed and often

12 had nothing else to do, but also young people who

13 sometimes attacked the local army base within, and not

14 very far from, the city cemetery.

15 He was Treasurer of Bligh's Lane -- you will

16 see where Bligh's Lane is on the plan -- Tenants

17 Association, trying to obtain at that time premises to

18 establish a community centre to help keep those young

19 people off the street. This was no DYH, no Derry Young

20 Hooligan.

21 You, sir, have it in the documents here, a

22 letter provided to the Widgery Inquiry in 1972. We can

23 have it on the screen as AM269.17. It is in your

24 bundle, if you prefer to see it there, behind

25 divider 4. This is written on behalf of the Principal


Page 104


1 of Saint John's Primary School in Bligh's Lane:

2 "I have known Mr Bernard McGuigan of

3 20 Innisgowan Crescent, Derry for a period of almost 25

4 years. I can in all honesty describe him as one of the

5 finest men I ever met. I taught two of his brothers

6 and two of his own sons. He was utterly devoted to his

7 wife and family and frequently came to the school to

8 inquire as to the progress his children were making and

9 to see if he could assist in any way to further their

10 education.

11 "Around this particular school in

12 Bligh's Lane of which I am the Principal there has been

13 a considerable amount of unrest, shooting incidents

14 since last September [which was 1971] As well there

15 was considerable annoyance caused by teenagers throwing

16 stones and missiles at the nearby army post every

17 afternoon.

18 "One Sunday before Christmas [the Christmas

19 before he died] Bernard McGuigan came to my home to ask

20 if he could have a short parents' meeting in a room in

21 the school to organise the fathers in the district to

22 stop the stone-throwing and to try to restore some

23 semblance of discipline to the local teenagers and to

24 improve their behaviour. 40 fathers came to the

25 meeting and organised themselves to take care of the


Page 105


1 school to prevent any further damage to it. They did

2 their very best to bring the stone-throwing to an end

3 and eventually did so.

4 "That action sums up Bernard McGuigan because

5 it was so typical of him. He was utterly devoted to

6 peace, his family and the welfare of our community. He

7 was the most helpful parent connected with this school

8 and we deeply regret losing him, especially in the way

9 we did lose him.

10 "He was a really wonderful man."

11 One in a sense wishes that the soldier who

12 pulled the trigger could read that letter and whether

13 he would still feel that he had any justification for

14 what he did because when Mr McGuigan went on the march

15 -- and he did go on the march -- it was the first time

16 he had ever been on such a march. He did so because

17 basically, as you will have gathered from that document

18 and all the other statements, the epithets of which

19 I have already put to you about his nature, because he

20 had a strong sense of community and he had a strong

21 sense of fairness.

22 Fairness is important because it relates to

23 civil rights. It is of interest in this context -- you

24 have it again in the bundle behind divider 7 -- that a

25 Member of Parliament who knew him well at the time, who


Page 106


1 was also on the march and was due to speak on the march

2 at the Free Derry Corner, has a short but telling

3 paragraph about Bernard McGuigan.

4 Could we have KC12.18, it is in this divider

5 that you have at 7 or it is coming up on the screen

6 now? Ivan Cooper was a Protestant as well as being a

7 Member of Parliament. Ivan Cooper had been quite

8 legitimately concerned, as he puts at the beginning of

9 his statement, with the non-violent struggle for civil

10 rights, and he had taken his inspiration from great

11 civil rights leader such as Ghandi and Martin Luther

12 King. However he had spent most of his life in the

13 Bogside, similar to Barney McGuigan. This is what he

14 says about Barney McGuigan at paragraph 26:

15 "While still at Bishop's Field ...": as you

16 know that is where it started, the march:

17 "... I also had a conversation with Barney

18 McGuigan, a gentle man, who I had known well for a long

19 time. Barney McGuigan had a brother, Chuck McGuigan,

20 who was a well-known country and western singer.

21 Barney McGuigan was also well-known around Derry and

22 would often be seen in his overalls. Barney McGuigan

23 lived in a house which overlooked the graveyard in the

24 Creggan area. He was a moderate man with no interest

25 in structured politics but a strong interest in the


Page 107


1 civil rights movement. Barney McGuigan had worked with

2 me in the shirt industry."

3 That was some years before. Barney McGuigan

4 and Ivan Cooper were not alone that day on the march of

5 people who crossed boundaries essentially, Protestant

6 and Catholic, both of whom had sincere beliefs in the

7 establishment of a fairer society. If I may pause in

8 the analysis of Barney McGuigan and why he was there

9 and why he went on the march at all, although it had

10 been banned, was because there came a stage in the

11 lives of ordinary people in the Creggan and the

12 Bogside, people who cared about ensuring that their

13 families grew up to know a better and a brighter

14 future; you cannot do that without a base of equality.

15 That base of equality has been recognised,

16 both in the southern states of the United States where

17 there has been segregation, apartheid and oppression,

18 as well as in South Africa. The reason I pause for a

19 moment is merely to highlight a theme which Mr Harvey

20 highlighted in a different way. I can do it shortly

21 thanks to his very detailed opening.

22 It is this: what has to be recognised by

23 1968 and 1969 is that the Creggan and the Bogside had

24 become a ghetto; it had become an isolated and

25 imprisoned community; imprisoned effectively by agents


Page 108


1 of the British Government, namely Unionist politicians

2 here; imprisoned to such an extent -- it is described

3 graphically, I do not read it and you will no doubt

4 already have read it in a number of books; one: "Those

5 are Real Bullets, Aren't They?" It has been referred

6 to many times. There is a graphic description at

7 page 28 in that book of how, by 1968 and 1969, this

8 imprisonment had occasioned a severe housing shortage,

9 it has already been described "searing unemployment";

10 about an a third of the population unemployed.

11 As Seamus Deane came to describe: "the

12 Bogside was once a street, now it is a condition".

13 But perhaps the starkest factor in this

14 period, I do not think it has been mentioned, but it is

15 of some importance, it is over and above the lack of a

16 job, the lack of employment, the lack of housing,

17 really the decent fabric, there was no universal

18 sufferage. It is astonishing to recollect that in 1964

19 only a third of the Bogside had the vote because it was

20 rate payers. In fact universal sufferage only came

21 about in 1969, something that John Hume had been

22 campaigning for, that he would not rest until this

23 obvious facet of life was rectified that everyone had

24 one man, one vote; something that is crucial and

25 recognised to be crucial to every democracy had been


Page 109


1 denied until the civil rights movement began again in

2 1968.

3 Set alongside the fact, and it is recognised

4 by the military authorities -- they make reference to

5 it -- by 30th January 1972 the population of Derry was

6 55,000; 33,000 were Catholic and the majority of them

7 lived in the Creggan and the Bogside.

8 So not only had there been gerrymandering

9 effectively to ensure, despite that imbalance of

10 population that the minority, the 33 per cent who were

11 Protestant effectively held on to power in the

12 corporation and held 60 per cent of the seats. Is it

13 any wonder that without work, without housing and

14 without the vote, that people should say "we have had

15 enough". Ordinary people; would anyone in this room

16 have tolerated it, because it is easy to say, "keep

17 quiet, stay at home, draw the curtains". It is when

18 people keep quiet, draw the curtains, stay at home that

19 the community suffers. It is only when people like

20 Barney McGuigan and others who went out that day stand

21 up for these values and make them known to a much wider

22 public that change occurs.

23 The development is interesting here because

24 what happened in the end was that the cause of the

25 unrest, the housing, the employment and the sufferage


Page 110


1 was converted into a protest of a different kind

2 because the authorities during this period of time, as

3 you have already been told, wished to oppress the

4 protest, no marchers, no sit-ins, no pickets.

5 When the Northern Ireland Civil Rights

6 Association in July 1968 began the process of alerting

7 effectively the world to the inequalities that I have

8 just mentioned, they were banned.

9 So it went on until 1st January 1969 when a

10 march organised by the People's Democracy from Belfast

11 to Derry was attacked on the outskirts of Derry at

12 Burntollet Bridge, attacked by Protestants and

13 effectively no action taken by any authority in the end

14 to protect them. This was before universal sufferage

15 was granted later that year.

16 It is not surprising that John Hume at that

17 time said he would not rest until normal democracy was

18 put into effect. It was therefore not surprising that

19 in the same year, 1969, effectively no-go areas or Free

20 Derry became the embodiment of resistance to the

21 oppression that had taken place.

22 Then the mood, as it were, then the interest

23 and the focal point and the concern of the people

24 wanting to ensure that the issues of civil rights was

25 put forward was what means were they going to be able


Page 111


1 to use, and the concentrated energy was turned to the

2 question of internment, which was in fact the pinnacle

3 on 9th August 1971 with the following consequential ban

4 on demonstrations and marches, such that by the end of

5 1971, 900 people had been interned, many of them

6 innocent, as were the people on the march that day.

7 They had been taken from their homes, rather

8 like Ivan Cooper was taken from his home, as it is said

9 in his statement at paragraph 5:

10 "Internment without trial was introduced in

11 Northern Ireland in 1971 which cut at the very core of

12 people committed to civil rights. I was arrested [Ivan

13 Cooper says] in Laburnum Terrace in August 1971 by

14 troops under the command [as it happens] of

15 Paddy Ashdown, leader of the Liberal Democratic Party.

16 It was known that innocent people were being interned

17 on the basis of out-dated intelligence."

18 Therefore the struggle was converted not so

19 much into the basic issues, but into how was it

20 possible to ensure that the basic issues were made

21 public. But the means which they sought to use was of

22 course banned or battoned off the streets, and the

23 example which happened but one week before this you

24 have heard about at the Magilligan camp.

25 This no doubt provides the background to one


Page 112


1 other theme I want to mention in the context of Barney

2 McGuigan, that the military authorities therefore,

3 looking at this scene of civil unrest which actually

4 was not civil unrest in any pejorative sense, it was

5 civil protest, justified protest. However, the

6 authorities, particularly General Ford and Lieutenant

7 Colonel Wilford, began to, as it were, mount a simple

8 equation. I will demonstrate very shortly what the

9 simple equation was.

10 The simple equation was this: anyone who

11 lived in the Bogside and the Creggan was Catholic;

12 anyone who was Catholic was nationalist; anyone who was

13 nationalist was associated or sympathetic to the

14 paramilitaries of whichever hue that happened to be

15 dominant in that time within that area, PIRA or

16 otherwise.

17 That very simple equation may be thought to

18 be too simplistic, but that is precisely the thinking

19 of these officers and this bears upon the question that

20 you have already asked about the deployment and use of

21 unlawful force. Essentially, what the army thought

22 they were doing -- I will be precise ; I do not mean

23 all soldiers that day, but certainly the paratroopers,

24 and there may be others -- was that anyone who was on

25 the street when they moved in was a legitimate target.


Page 113


1 It was being there was enough because of this

2 background of living in this area and because of their

3 association with civil rights, because then they moved

4 from civil rights to suggesting, as they have done,

5 that the national -- the civil rights movement

6 effectively -- was an ally of the IRA.

7 In other words, they have encapsulated in one

8 short form that the Bogside and the Creggan is the PIRA

9 and NICRA is the PIRA, therefore anybody on the street

10 is a legitimate target, whether they are doing

11 something or not; these are aimed shots at people who

12 they thought were quite legitimate, irrespective of

13 what they were doing.

14 The reason we are able to say that that

15 approach is clearly emanating from above can be seen in

16 General Ford's most recent statement. Could we have

17 temporary statement 14.1, please? That is the first

18 page of his statement and indicating when he arrived.

19 He only arrived, as you may have recalled in July 1971,

20 coming under the appointment -- it has already been

21 touched on today, so I do not develop it...

22 Interestingly on the next page, 14.2, is the

23 reference that has already been made to the fact that

24 they are well accustomed to a plan within a plan; that

25 is at paragraphs 2.4 and 2.5 as to, as it were, hidden


Page 114


1 agendas and the way things operate. That was in

2 relation to internment.

3 However, the particular paragraph of interest

4 comes later on this topic of attitude, at paragraph

5 3.30, which is on page 14.8. At 3.30, the paragraph

6 that is highlighted there is the belief he had formed

7 by 14th December 1971. It is a crucial period, where

8 he is doing a written appreciation of Londonderry, one

9 wonders on what basis, but this has already been

10 reviewed in another context.

11 It is this paragraph:

12 "At this time my belief was that the Bogside

13 and Creggan were completely dominated by extremists.

14 From a physical point of view, some 50 barricades

15 prevented army entry, and law and order -- such as it

16 was in those areas -- was the law and order of the IRA

17 and its supporters. There were at least 1,000

18 activists [we await with interest how that is arrived

19 at] and from what I was told by others, I understood

20 that 90% of the population would be supportive of

21 them."

22 That theme effectively, that it is a

23 community that is riven effectively with terrorism;

24 that they can all be associated, it is replicated --

25 I do not ask you to look it up -- later in the


Page 115


1 statement, at paragraphs 4.11, 4.12 and so on. That is

2 the theme, that the approach they are having. You set

3 that alongside the observations -- I give you the

4 reference only, G74.37 -- from another officer, Tuzo,

5 that behind all this stands NICRA, an active ally of

6 the IRA.

7 Therefore, if we are right that this is the

8 mentality, this is the approach of senior officers, it

9 explains precisely why Colonel Wilford in that video

10 clip you saw the other day shown by Mr Harvey "Remember

11 Bloody Sunday", when pressed by the interviewer, if you

12 remember, about "did you not shoot innocent people?" ,

13 was quite unwilling to concede that anybody innocent

14 had been shot because no one was innocent, they were

15 all out to make trouble; he stated that blandly. I do

16 not know whether we are going to see it reproduced in

17 his statement.

18 It also explains why a reference is made on

19 the tape revealed only the other day that General Ford

20 on the news that people had been killed that day,

21 civilians, was lapping it up and said it was the best

22 thing he had seen for a long time. Why? Because they

23 both, Ford and Wilford, believed firmly that the

24 Bogside and the Creggan deserved what it got because

25 they had painted in their minds this simplistic picture


Page 116


1 that anybody congregating on the street in that area

2 must have an unlawful purpose: if it moves, shoot it.

3 Before returning to Barney McGuigan, one has

4 to make this observation: although in these documents

5 reference is made to the concern particularly by Ford,

6 we say exaggerated rather like Derry Young Hooligans,

7 but undoubtedly a concern, that the IRA would use a

8 march or a demonstration by NICRA, if I can use the

9 shortened form, or at least the hooligan element that

10 might attach itself to such a march.

11 So far as one is aware, there was in fact no

12 history that gunmen ever used a NICRA march for those

13 purposes. In fact, as you will see from Ivan Cooper's

14 statement, the police had intelligence, and you know of

15 this already, that if there were gunmen, they were

16 going to stay away.

17 Of course one has to look and again stand

18 back. We have here 90-year-old Lord Fenner Brockway

19 addressing a meeting, a prestigious speaker being

20 brought into the midst of apparently terrorist

21 territory at Free Derry Corner. No one is sensibly

22 going to endanger his life within that community on

23 that day.

24 If the authorities had had sensible

25 intelligence and had listened they would have known


Page 117


1 that, but of course they were not interested in

2 sensible and accurate intelligence. They wanted

3 excuses; excuses for carrying out an objective which

4 was quite different.

5 That therefore is the background,

6 essentially, to the interest in a sense that Barney

7 McGuigan himself has in going on this march. It is to

8 uphold what are basic civil rights.

9 I return to the weekend of the 30th, the

10 Sunday. That day he went to Mass at a local church

11 first; he then went to a funeral. He had Sunday lunch

12 and he left the house at about 2.30 wearing a navy

13 anorak and a blue/grey suit and no scarf. Sir, I am

14 not going to spend time today, although I will refer to

15 photographs later, on proving beyond a shadow of a

16 doubt, because the witnesses are manifold that he was

17 not wearing a scarf and his wife has always proclaimed,

18 and she gave evidence on more than one occasion both at

19 the Inquiry and at the inquest, that he did not have a

20 scarf but no doubt it was thought to be part of the

21 piling up of the case in that note about how

22 Lord Widgery would approach this matter.

23 There was no scarf, and if we could go back

24 to Q6, please, you have the plan in the folder; I can

25 quickly indicate his route. He went to Bishop's Field,


Page 118


1 which is now being marked, and he followed the route of

2 the march, which can be done quite quickly because you

3 have seen it many times. There were people who saw him

4 at Bishop's Field as well as Ivan Cooper and who were

5 with him.

6 When we get round to Lone Moor Road, he was

7 joined by two friends who knew him well. Their

8 statements are in the bundle you have: one is

9 Liam Lynch and the other one is John Magee. It was

10 John Magee who stayed with him the longest and who

11 describes the route.

12 I do not read their statements; I summarise

13 their statements because the position is from them and

14 from everybody else who sees him, both on the march and

15 finally when we get down to the Rossville flats, that

16 he was carrying no weapons; he was carrying nothing

17 that could be misinterpreted as a weapon; he engaged in

18 no aggressive activity whatsoever.

19 At some stage he became separated, and it is

20 almost certainly somewhere near the top of

21 Chamberlain Street and the junction with William

22 Street, from Liam Lynch and he went on in fact with

23 John Magee. The route that he took, although on the

24 bigger map it is difficult to follow precisely, I can

25 describe it so that it is not too difficult. They


Page 119


1 walked down effectively the High Street to

2 Waterloo Street because they are trying effectively to

3 avoid any trouble. Having walked down Waterloo Street

4 towards the Rossville flats, they go across that

5 walkway. You have it perhaps in the detail that may be

6 needed, AM224.6. This is a map marked up by Magee and

7 you will see that the figures 6, 7 and 8 on the screen

8 show the route that the two of them took: across the

9 walkway towards block 3, inside and along block 3,

10 across another walkway into block 2 on the inside of

11 the block and then finally down to ground level at

12 about the junction of block 2 and block 1.

13 Magee then goes off because he wants to look

14 round the block and see what is going on up the

15 street. Barney McGuigan does not want to go round the

16 corner. He wants to, from that position, listen to

17 speeches that are going to and are about to happen at

18 Free Derry Corner, which is only a matter of yards away

19 and could be heard from the position in which he was.

20 It is quite clear that it is about the time

21 that the speeches begin -- that is confirmed by Ivan

22 Cooper who was effectively chairing the meeting -- it

23 was at about the time that the meeting was about to

24 begin that firing started. We say "firing", and his

25 son, Charles McGuigan, who, by this stage, had come


Page 120


1 down to Rossville Street himself and was standing near

2 the pram-way in Kells Walk and was looking and saw the

3 first arrival, we will say that the firing that was

4 opened on the civilians was not in response to any

5 lethal fire, let alone from the individuals concerned.

6 However, Mr McGuigan remained on that corner

7 by those blocks between the two that I have just

8 mentioned, namely 1 and 2. There is in this context a

9 photograph of him standing. Could we have EP32.3.001?

10 In fact this is a labelled photograph, but it is not

11 entirely clear. You have seen it before. He is the

12 gentleman with his head -- the reason I ask for it to

13 come up again, what is interesting about this

14 photograph, as you will see where it is taken, looking

15 at the gable end of block 1 with block 2 in the

16 distance, is that what one sees is in fact the back of

17 his head towards the left-hand side. What we know from

18 the injuries is that the bullet that struck him, the

19 single aimed shot by a soldier, went in behind the left

20 ear and straight through the right eye.

21 Sir, without going into the details, you will

22 know that a match box was placed near this scene later

23 as a result of what happened and what was in the match

24 box. It is the left side of his head in that context.

25 There are a number of statements which deal


Page 121


1 with what happened. We have put some of them into the

2 bundle. Geraldine McBride, who was then known as

3 Geraldine Richmond, and you have seen her on various

4 photographs, there is a description which is worth just

5 referring to. It is supported by others at AM45.5. At

6 the top, paragraph 22, she is dealing with the death

7 and the shooting of Hugh Gilmore. Later she goes to a

8 point near the end of block 1 and the Rossville flats

9 which she has marked on a plan. Paragraph 24:

10 "Whilst we were huddled together I heard a

11 man's voice calling 'I do not want to die alone --

12 somebody help me'."

13 It is suggested that is Doherty round the

14 corner in the direction of the walls, effectively on

15 Fahan Street East and the steps:

16 "I could also hear him whining and saying

17 'God help me'. The whining would stop and then start

18 up again. I think the calling was coming from the

19 Fahan Street East and the Fahan steps area. I think

20 from what I heard later that the man was

21 Patrick Doherty. I wanted to go out to help him but

22 I could not move, I was too scared".

23 As you will know she was in a bit of a state

24 because of what she had already seen:

25 "We all huddled together tighter. The man


Page 122


1 was obviously in pain although we could not see him.

2 All I could see was Hugh Gilmore's body. By the time

3 I heard the man calling he had already been shot.

4 "25. Barney McGuigan, one of the men huddled

5 at the wall with me, was a community man and was

6 generally looked up to. After a short time (although

7 I do not know how long) Mr McGuigan said that he could

8 not stand the sound of the man calling any longer and

9 that if he went out waving a white hanky, they would

10 not shoot at him. We tried to dissuade him from going

11 out. We told him they would shoot him. However, he

12 was brave and he stepped away from us holding the white

13 hanky in his hand. Although I cannot be certain

14 I think he held it in his left hand. He walked out

15 slowly sideways ...".

16 We say that is interesting because if he was

17 roughly in the position of the photograph with the

18 left-hand side of his head towards the Glenfada Park

19 North and he walks out sideways in order to, as it

20 were, keep an eye on what is happening and where the

21 man is, it might explain why he had, if not his back at

22 least his head because of what she then says:

23 "He walked out slowly sideways in an arc

24 towards where we thought the sound was coming from. He

25 stepped out about 10 to 12 feet away from us. All the


Page 123


1 time he was walking I could see the left-hand side of

2 his face."

3 She is alongside the gable wall:

4 "We were calling to him all the time to come

5 back. He kept looking back towards us. I could see

6 bullets going past us and Mr McGuigan from all

7 directions although I did not hear automatic fire."

8 In the next paragraph:

9 "I remember hearing two distinct shots.

10 After the first one Mr McGuigan turned back towards us,

11 and although I cannot be certain I think he turned his

12 whole body and not just his face. I did not see the

13 bullet hit anything, I just heard it. The second shot

14 hit him ...". I am not going to read the rest.

15 "The second shot hit him"; "he could not

16 stand it any more" because he was the kind of man who

17 was conscientious, who was touched by humanity and was

18 destroyed himself in but a few seconds. Whoever fired

19 that shot -- and we say it has to be one of those

20 soldiers, we say almost certainly F or someone with F

21 in Glenfada Park North because, as you know, the only

22 soldier that accepts, that does not mean to say there

23 are not others from that area, who admits any

24 trajectory anywhere near this position is F. But of

25 course what Barney McGuigan was doing does bear no


Page 124


1 resemblance to the description that F has given.

2 You will also recall that F of course

3 initially made no reference to shooting to the south of

4 the Rossville blocks. It is only when his rifle is

5 associated with another death that somebody has to work

6 out what he was really doing that day. Then of course

7 he does confess to shooting, but not of course in the

8 same, as it were, pattern of behaviour that Barney

9 McGuigan was undoubtedly engaged in.

10 That is seen -- I do not read it now, it was

11 read out in opening by my learned friend, Mr Clarke --

12 the soldier on the wall, 227, in fact has given a

13 statement in which he has given a description --

14 I merely give the reference. I cannot ask for it up on

15 the screen. It is 2204.005, the very last statement in

16 this bundle, in which it is quite clear he is

17 describing the actions of a paratrooper kneeling by a

18 lamppost on Glenfada Park North, firing along the

19 southern trajectory and killing Barney McGuigan.

20 We would like that paratrooper to step

21 forward now because the product of what happened on

22 that day has been seen in a variety of photographs and

23 may I say at once, the McGuigan family are here today,

24 and it was not until a year or so ago that any of them

25 could look at these photographs and Mrs McGuigan never


Page 125


1 has looked at any of these photographs. I say it now

2 because she feels that the photograph has to be shown

3 in public. She is extremely grateful to the tactful

4 and courteous way in which this matter has been dealt

5 with by the Tribunal and Counsel, but this is the

6 photograph, the abiding image of a man shot down for

7 what he stood for effectively. It is EP31.1. It has

8 been reproduced in lots of different albums. Soon

9 after this an APC comes round the corner and you will

10 see that at EP31.2. you have seen this before, but

11 that puts it in context. You will also notice there is

12 no scarf.

13 What had happened here is that having been

14 shot by a soldier, we say, near the corner of Glenfada

15 Park North and although Geraldine Richmond or McBride,

16 as she now is, originally thought it may have come from

17 the walls, she believes in fact it came from

18 Glenfada Park and the Soldier 227 really confirms that

19 it did come from Glenfada Park.

20 What happens is that members of the public

21 then stepped in, as it were, to cover him up; that is

22 how the scarf got put on to Bernard McGuigan. There is

23 a photograph near the scene. Can we have EP.19.8.001?

24 It is possible, one cannot go further, but there is

25 somebody in the vicinity who is wearing a scarf, and


Page 126


1 that scarf or a similar one is seen in earlier

2 photographs.

3 It may be that one, it may not, but somebody

4 put a scarf down and the statement of Patrick Clarke,

5 which again I do not ask you to look at, nor do I ask

6 you to look at the photographs which go with that,

7 effectively what you see, Patrick Clarke who is on the

8 scene and says a prayer for Mr McGuigan on the spot, is

9 that you see him putting on to Mr McGuigan --

10 originally he put his own jacket on, then he took it

11 off and Mr McGuigan ends up covered with, appositely, a

12 civil rights banner and also a white blanket, and many

13 of the photographs you have seen -- can we have one of

14 these, EP22.13 -- that is how he ends up, because

15 Clarke has removed his shoes, that is Bernard

16 McGuigan's shoes and straightened the body out as a

17 mark of respect.

18 One has therefore a very clear, unadulterated

19 and emphatic picture of what happened to Barney

20 McGuigan. He merely went out to make a point and he

21 was shot effectively for being there, for having

22 effectively the audacity to be there and to render

23 assistance to others.

24 Interestingly, one of the photographs that

25 were taken at that corner -- could we have


Page 127


1 EP26.21.00 -- conveniently ties in with the other

2 family because the gentleman on the corner is labelled

3 as Alexander Nash.

4 Alexander Nash was also on this corner at

5 about this time, as was Ivan Cooper. Before I develop

6 what happened to the Nashs effectively, the statement

7 of Ivan Cooper indicates, I merely summarise it once

8 again, shows that he --

9 LORD SAVILLE: This photograph, am I right in

10 thinking, that by this stage Alexander Nash had been

11 wounded?

12 MR MANSFIELD: Yes, and probably the body of

13 William, as it says in the NPC. I am working backwards

14 effectively. Alexander Nash has walked round the

15 corner from the barricade. Meanwhile, whilst all this

16 has been going on, Ivan Cooper has had to crawl from

17 the platform at Free Derry Corner and he gives also a

18 graphic version. As he crawls across to this place he

19 too sees Barney McGuigan shot down by military fire and

20 says "Barney never had any connection with any

21 subversive organisation and would never have been

22 throwing nail bombs".

23 That, in a sense, is the epitaph of the very

24 man who had organised and help organise and was

25 speaking on the civil rights march, watches one of


Page 128


1 those who he has known as a staunch supporter of civil

2 rights gunned down in front of the very platform where

3 he was to hear Lord Fenner Brockway speak.

4 Alexander Nash, if I may turn to him and

5 William Nash, in a sense obviously are together

6 although not on the march together. Can I deal with

7 his family? Just to put it in context: William Nash

8 was one of the three shot at the rubble barricade which

9 is just round that corner, in other words, William

10 Nash, John Young, Michael McDaid, all young men, a

11 group of three. As the summary indicates, almost

12 certainly shot at the same time. As the summary

13 indicates, that is the summary Mr Clarke very kindly

14 provided, the person who had been shot just before them

15 was Mr Kelly.

16 So effectively Kelly is shot, then shortly

17 after William Nash, John Young and Michael McDaid.

18 Alexander Nash was aged 52 and he, too, was a painter.

19 He had a large family, 13 in all: 8 brothers and 5

20 sisters. William, obviously, one of the younger sons.

21 Rather like the McGuigan family they had strong

22 connections with the armed forces, the British armed

23 forces: in the McGuigan's case it was the RAF and

24 links with the forces, both father and father-in-law

25 during the First World War. In this case two of the


Page 129


1 sons were closely linked with the British Army, even at

2 that time, Eddie and Paddy Nash, the Enniskillen

3 Fusiliers and the Royal Corps of Transport. This is

4 not a family, therefore, that set itself up in any way

5 as it were to subvert the British Army, or as no doubt

6 some would have seen it, the army of occupation.

7 William had attended a local school and

8 college, Saint Joseph's. He had left at 15. So he was

9 15; his father was 52. Neither of them had political

10 affiliations of any kind. William became a docker,

11 particularly at that time exporting potatoes. He too

12 -- this has been mentioned -- the son, it has been

13 mentioned before, had a considerable talent and

14 interest in boxing, as had his brother, another brother

15 called Charlie Nash. It has been mentioned in other

16 documents that Charlie Nash became a well-respected and

17 well-known national figure, representing his country in

18 the end at the Munich Olympics.

19 This is a family with talent, as were the

20 McGuigans. This is a family not hell bent on

21 disruption. One of the reasons we say disruption was

22 certainly not on their minds that particular weekend is

23 for a very good reason, that another brother, John, who

24 was on the march was getting married. On Saturday 29th

25 John married Margaret Friel in St. Mary's Church, the


Page 130


1 church to which in fact Mr McGuigan had been, the local

2 church.

3 Charlie was the best man. They were about to

4 go on their honeymoon on the Monday. There was an

5 added complication, and it is a fate, an irony of life,

6 that at that time, Mrs Nash, the mother, was in

7 hospital having suffered a serious heart attack. The

8 irony is this, the hospital was Altnagelvin where

9 William was to be taken, taken as Ivan Cooper describes

10 when he went to the hospital later on to see how they

11 were treated.

12 Could we have KC12.27, please? The hospital

13 where his mother was -- this is how they were treated

14 later on at that same hospital by soldiers.

15 Paragraph 81:

16 "The soldiers carried each of the bodies by

17 the arms and legs and treated each of the three bodies

18 in the same way. No stretcher was used. There was a

19 para taking each end of each body. A para took hold of

20 each body by the palms of the hands or the wrists and

21 another para took hold of each body by the ankles. The

22 bodies were all handled as if they were 'stuck Pigs'."

23 He goes on to describe almost hilarity being

24 expressed by the soldiers at that time.

25 Lapping it up, were they, according to the


Page 131


1 reference to General Ford. They certainly were, but

2 Mrs Nash was in that hospital critically ill and the

3 bride, Margaret Friel's mother were also in hospital at

4 that time. Nevertheless, the wedding occurred.

5 It is important to mention it because of

6 course the wedding meant they had to dress up, and

7 William Nash, as you may have seen from the

8 photographs, was wearing the next day, on the Sunday,

9 the new suit that he had bought for that wedding; it

10 was a three-piece brown suit with a yellow floral shirt

11 and tie.

12 Additionally, he had a particularly special

13 ring, an American graduation ring that he had or one of

14 his sisters had obtained from an American boyfriend

15 which he wore that day. The family not only remember

16 the day in graphic detail, they also remember the fact

17 -- and it has happened to other families -- that when

18 finally the bodies were returned, they were returned

19 without the things that mattered most. That ring was

20 never recovered. So not only did they take life, but

21 those responsible for the care, if that is the right

22 word, of the bodies did not ensure that the property

23 was returned.

24 However, if we may in their case have the

25 plan of what happened to these two the next day. After


Page 132


1 the wedding celebrations were over and no doubt they

2 had had an evening of celebrations as well, could you

3 go, please, to the other file, that is the Nash file

4 because there -- if we could have Q9 on the screen so

5 others can perhaps follow it and have on the one plan

6 the routes followed by the two.

7 The Nash family which I am dealing with

8 particularly at the moment, lived in Dunree Gardens.

9 Just to see where that is could we have Q6, please?

10 Dunree Gardens is just up by Creggan Heights near the

11 West Way at the top. It is being highlighted at the

12 moment. That is where they lived. The march obviously

13 started round the corner from where they lived, namely

14 at Bishop's Field.

15 William Nash was with a cousin called -- I am

16 going to give the initials because there are a lot of

17 Charlies in this case -- but William Nash went with a

18 cousin called CC Nash; he is one of the statements in

19 his bundle. They started out from Bishop's Field. It

20 is not clear that his father did join him at that

21 stage. John Nash was also on the march, but a little

22 behind.

23 Effectively, if we can now go back to the

24 previous plan, please, Q9, the Nashs, but separately,

25 came down William Street and ended up near the barrier


Page 133


1 but separately. There are a number of photographs

2 which show both of them, but again not together, at the

3 barrier. You have seen some of these. I take one of

4 them, 653, please. 653 is also -- there he is in his

5 wedding suit, the floral tie and so forth. There are

6 other photographs in this sequence where you can see

7 him in the same dress throughout.

8 The only thing that is suggested that he may

9 have done at any stage is not fire a weapon, not

10 possess a nail bomb, not throw an acid bomb, but in

11 fact throw a stone. There is another photograph in

12 which, if we have it, 654, he is undoubtedly seen to be

13 throwing something. Beyond that it is not suggested he

14 posed a lethal threat of serious injury to anyone.

15 I am looking for the photograph of Alex Nash

16 which is photograph EP26.7.001. Again, near the

17 barrier, is Alex Nash. It is clear that both of them

18 having gone down William Street were somewhere near the

19 barrier. Could I go back to Q9, which is the plan,

20 please? Alex Nash at about that period of time, who is

21 doing absolutely nothing except watching, meets son

22 John whose wedding it had been. They have a

23 conversation and then separately both of them make

24 their way down Chamberlain Street, as is now being

25 marked, but they are not together as they go down.


Page 134


1 Alex Nash goes down Chamberlain Street. I do not

2 follow the route of John; he goes off towards

3 Joseph Place. Down Chamberlain and across the

4 Rossville flats into Glenfada Park.

5 Meanwhile, and this we say straightaway is an

6 assumption, it is not clear exactly what William Nash

7 did but a reasonable assumption seems to be that he

8 goes back down William Street to Aggro Corner, as it is

9 called, and down Rossville Street towards the rubble

10 barricade where he is eventually shot. But he is seen

11 at the end of the gable wall of Glenfada Park North.

12 Could we have EP27.11, please?

13 This is not a marked one, but it is easier

14 without the labels. His face is accepted to be there.

15 There he is at the end of the gable wall.

16 While I am on this photograph, to save

17 bringing it up again, only very recently we have

18 ascertained that the gentleman in the bottom left-hand

19 corner who everybody, including ourselves, thought was

20 Danny Gillespie, the next family I am going to deal

21 with, is not Danny Gillespie. After 28 years it is

22 sometimes difficult for people, I appreciate that

23 applies across the board, to necessarily remember

24 precisely identities. It is thought, I will not put it

25 higher than this at the moment, that the person


Page 135


1 depicted in that corner is in fact Hugh Duffy whose

2 tribunal reference is AD156.10. He has been approached

3 and he thinks it is him, that is, Hugh Duffy.

4 LORD SAVILLE: It may not be very important,

5 Mr Mansfield, are you able to suggest a timing of this

6 photograph in the sense of in relation to those who

7 were shot on the barricade.

8 MR MANSFIELD: Only this, that it must be, we

9 say -- I say "must be", it is likely to be before Kelly

10 is shot, and therefore obviously the other three,

11 because in fact as you saw from another photograph,

12 Kelly was brought from the barricade to the corner that

13 is on the right-hand side here. There would be, if he

14 were there on that corner, a greater crowd on the

15 corner if Kelly had already been shot. He may just

16 have been shot round the corner on or near the rubble

17 barricade --

18 MR CLARKE: I do not want to interrupt my

19 learned friend, but can I invite him and his clients to

20 consider whether, as some witnesses have said, this in

21 fact shows Kelly's body in the beginning of its passage

22 from the gable end into Glenfada Park North being

23 carried by, amongst others, James Wray and Joseph

24 Donnelly?

25 LORD SAVILLE: You mean to the left of this


Page 136


1 photograph?

2 MR CLARKE: Yes, and to the left of the

3 lamppost.

4 LORD SAVILLE: The person with the hat on is

5 James Wray?

6 MR CLARKE: That is what we believe, and we

7 believe that the four or six people are in fact

8 carrying the body of Michael Kelly, I do not say that

9 with certainty, but that is what I believed up until

10 now.

11 LORD SAVILLE: As I say, Mr Mansfield, I am

12 not sure it matters very much, but there may be

13 something in what Mr Clarke has just said in view of

14 the identity of the people in that group. I do not

15 think we need spend time on it at the moment.

16 I wondered whether you had any particular view which

17 you wished to express.

18 MR MANSFIELD: Not beyond that which I have

19 already expressed. I accept it could be that that

20 group has already retrieved Mr Kelly and therefore

21 William Nash has not yet gone round the corner to the

22 rubble barricade with the others. It is difficult to

23 be precise about that.

24 However, what undoubtedly does happen is that

25 after that photograph is taken, he does go round to the


Page 137


1 barricade and he, like the other three, all suffer very

2 similar injuries, the other two in that group of

3 three. In other words, single shots from the front at

4 a 45-degree angle.

5 Somewhere, again it is very difficult to put

6 it in an exact sequence because there are gaps in

7 continuity. Going back, Alexander Nash heard the

8 shooting and went towards the rubble barricade only to

9 find that his son was one of those who had been shot

10 and who was almost certainly dead by this time.

11 I would like just to show, although I think

12 it has only been shown once, but it seems to be in this

13 sequence. Could we have a video, please, video 48? It

14 is the ABC one, sequence 48 with a time at the bottom,

15 if it helps, of 6.04 on the tape?

16 (Video played)

17 It is when it shows the rubble barricade; 604

18 at the bottom.

19 (Video played)

20 The suggestion is that -- this is the rubble

21 barricade -- the man whose outline, the silhouette can

22 be seen there, is Alexander Nash. If you could just

23 play it on again, please. Could we go back again to

24 604? I do not know whether, sir, you saw it, an arm

25 goes up.


Page 138


1 LORD SAVILLE: I do not think on this

2 particular recording we can do it frame by frame. I do

3 see what you mean.

4 MR MANSFIELD: There is an man who puts his

5 hand up there. He says -- we have put his statement,

6 he gave evidence, that is Alexander Nash, at the

7 Widgery Tribunal, and they are in that bundle -- he

8 says he went to roughly the middle of the barricade,

9 and certainly in Mr Clarke's summary of the rubble

10 barricade the consensus is that William Nash was in the

11 middle of the three bodies that were found on the

12 rubble barricade. This may be of some importance in

13 this context: what Alexander Nash said to the

14 Widgery Tribunal was that in fact he raised his arm and

15 that he was shot. If I can do it so that it can be

16 seen here. (Indicating) He raises his left arm and he

17 described to the Widgery Tribunal that the injury he

18 received came through the left forearm and out the

19 other side. It is difficult to tell, but it may be in

20 that picture it is a right arm going up rather than the

21 left. So whether that is the precise moment or whether

22 he lifts his other hand as well, certainly his

23 description of this, which has been consistent from the

24 beginning, namely that he did go out waving his hands,

25 keeping his fingers spread (Indicating), so no one


Page 139


1 should think for a moment that he was armed.

2 If he is right in his recollection as to the

3 injury --

4 LORD SAVILLE: We are looking south, are we

5 not?

6 MR MANSFIELD: Yes.

7 LORD SAVILLE: So on this -- it is very

8 difficult because the photography can be

9 foreshortened -- it looks as though he is to the

10 eastern side of the barricade.

11 MR MANSFIELD: It is certainly obviously

12 impossible to identify there and it may be at the end

13 of the day it is someone else doing it, but that is the

14 sort of thing he says he did. He told the Widgery

15 Tribunal the reason he went there was not that he

16 thought effectively his son was alive, he thought his

17 son was dead, but that he wanted to stop the firing so

18 that the body could be retrieved. He said that very

19 carefully indeed.

20 If in fact his remembrance of holding up his

21 left arm and being shot in the way he described, he has

22 his left arm up facing the troops that are ahead of the

23 rubble barricade, it is likely -- we cannot go higher

24 than this -- that he was shot by soldiers to the north

25 of the barricade. That is the consensus of the


Page 140


1 civilian evidence. It is unlikely in that context that

2 he has been shot, if that is going to be the suggestion

3 or the possible suggestion by a low velocity weapon

4 being fired from the doorway of the Rossville flats,

5 which at this point are behind him --

6 LORD SAVILLE: But he was shot in the left

7 arm, was he not?

8 MR MANSFIELD: Yes, he was shot in the left

9 arm.

10 LORD SAVILLE: Are we sure in this picture

11 that he is in fact facing north?

12 MR MANSFIELD: Certainly those around me, all

13 I can say is, yes, we think he is facing north.

14 LORD SAVILLE: The fact of the matter is he

15 says he was shot in the left arm. He was in fact shot

16 in the left arm.

17 MR MANSFIELD: Yes.

18 LORD SAVILLE: You are quite right in

19 suggesting it is not necessarily the picture of him

20 immediately before he was shot, but if he was facing

21 south then the end of block 1 or the door to block 1

22 would have been in front of him, is that not right?

23 MR MANSFIELD: Unless we have misjudged, I am

24 afraid it is only a short frame.

25 LORD SAVILLE: I am looking at the map


Page 141


1 because the barricade is well along block 1. The door

2 to block 1, at least the Rossville Street entrance door

3 is down at the end of block 1 or virtually at the end.

4 So that if this photograph represents the position he

5 was in when he was shot, he could have been shot from

6 the doorway of the Rossville Street -- the

7 Rossville Street doorway of block 1 -- in the left arm.

8 MR MANSFIELD: Yes.

9 LORD SAVILLE: I am not saying for one moment

10 that is my view. It seems on the face of this material

11 to be at least a theoretical possibility, if not more.

12 MR MANSFIELD: All we can say, if it is him,

13 is that the photographer is looking at the rubble

14 barricade from the direction in which the troops are

15 coming.

16 LORD SAVILLE: That I think is undoubtedly

17 the case because a previous frame shows the trucks.

18 MR MANSFIELD: If that is right, the entrance

19 to the Rossville flats is behind Mr Nash.

20 LORD SAVILLE: If Mr Nash is facing the

21 troops, yes.

22 MR MANSFIELD: That is all I can say.

23 LORD SAVILLE: I agree, I am not sure at the

24 moment you can tell from this photograph which way

25 Mr Nash was facing.


Page 142


1 MR MANSFIELD: Having had this discussion, if

2 we could play these couple of frames again. Play it at

3 normal speed so it puts it in context. Just play it

4 from there.

5 (Video played)

6 LORD SAVILLE: It does look, on the frame

7 following the one where he has his hand raised, that he

8 either falls or goes to the ground, does it not? We

9 just got a faint impression of him falling, either

10 deliberately or because he has been shot.

11 MR MANSFIELD: Yes.

12 LORD SAVILLE: I am not sure we can take

13 those particular pieces of material much further,

14 Mr Mansfield, at least not at this stage.

15 MR MANSFIELD: Sir, I am grateful for that.

16 If I could just move on then from this. In

17 summary form the soldiers to the north of the rubble

18 barricade who are candidates for firing in that

19 direction have already been outlined by Mr Clarke. In

20 terms of William Nash perhaps the most likely candidate

21 is P; more remotely, as he put it in opening, are U, C,

22 K, L, and M, although they seem to be directing their

23 attention towards the people who were crawling.

24 However, once again what P described

25 originally, rather like F, does not bear much


Page 143


1 relationship to what was going on on the barricade

2 generally because there were and there is, we say, no

3 suggestion that William Nash was carrying any weapons

4 or nail bombs or anything of that kind, let alone a

5 pistol, which P said he fired four shots towards a man

6 firing a pistol. There is no suggestion of that in his

7 case, particularly as his father was there very shortly

8 afterwards. There is certainly no suggestion that

9 Alexander Nash, the father, if shot by military fire,

10 was carrying anything of that kind either.

11 May I pause in this context because the

12 soldiers that relate to this, that is P, we have in

13 fact recently been provided with statements by these

14 soldiers; you will find them in the purple file. I do

15 not go through them all, other than the one that has

16 most recently been provided by P on 25th July. We can

17 put it on the screen. It is 623.001, in particular

18 623.002. There is only one short paragraph.

19 LORD SAVILLE: Sorry, where do we find it in

20 the bundle?

21 MR MANSFIELD: It is in the bundle behind the

22 divider dealing with William Nash. I am not sure they

23 have tab numbers, but if they have, it should be

24 tab 11.

25 LORD SAVILLE: Unfortunately we do not seem


Page 144


1 to have tabs --

2 MR MANSFIELD: I will just put it on the

3 screen for the moment. 623.002, paragraph 12: it is a

4 very short paragraph, but it virtually sums up the

5 point I was making earlier:

6 "I have no recollection of firing my weapon

7 or of seeing or hearing others firing weapons. I do

8 not recall hearing any other, non-military, types of

9 rifle discharge. I must have been fired at, but I do

10 not remember it at this time."

11 That bears a remarkable resemblance to F who,

12 we say, has a part to play in Bernard McGuigan's death,

13 which is at the end of the other bundle at divider

14 number 10 because there one can see how he now puts

15 it. If it can be put on the screen in case it cannot

16 be found. It is temporary bundle 42.122, in

17 particular, 122, paragraph 34 of F's statement which

18 was provided again this year. It is not dated the one

19 I have. It is in the temporary statements, 42,

20 starting at 122. If it cannot be found I can do it

21 very quickly. What F stays at paragraph 34 is again

22 exactly the same as P. In his case what he says is

23 this, it is two sentences:

24 "I remember firing my weapon but I do not

25 know when, where or why I fired it. I do not recall


Page 145


1 hearing an order to cease fire at any stage."

2 So currently both these key figures are

3 saying, effectively, they have no memory. How one will

4 be able to test recollections when in fact of course

5 the truth is in both cases, as I will develop in a

6 moment very briefly, these are fabricated accounts to

7 explain why they fired their weapons and they may well

8 have forgotten the lies they have told. The truth, we

9 suggest, is yet to emerge.

10 MR TOOHEY: There is a difference; the

11 earlier statement says "I have no recollection of

12 firing my weapon". It then goes on "I must have fired

13 it". The second one refers expressly to a recollection

14 of firing.

15 MR MANSFIELD: In either event, we say, the

16 distinction is well taken, that if these men are

17 responsible for killing civilians, particularly if they

18 are innocent, it is hardly a matter they would have

19 forgotten. They may wish to forget it, but one would

20 think it would haunt their consciences as it has

21 haunted the memories of the families.

22 The other family, if I may deal with that,

23 relates to Danny Gillespie. He also attended the march

24 that day. You have in the file his statement. There

25 are far fewer who see him on the march. He lived at


Page 146


1 81 Lisfannon Park, which is not very far away from

2 where he was shot. This is Sector 4, Glenfada Park

3 North. This is the corner of Glenfada Park which you

4 have seen only this morning in the context of Mr Wray.

5 There were four people killed: William McKinney, James

6 Wray and two in Abbey Park, McKinney and Donaghy. And

7 there were five wounded: Joseph Friel, Michael Quinn,

8 Patrick O'Donnell, Joseph Mahon and Danny Gillespie.

9 Because of the qualification we have put in

10 relation to that photograph we are no longer in

11 a position to say that that is Danny Gillespie, and

12 there is no photograph to show you of him, suffice it

13 to say there is absolutely no evidence in his case that

14 he was doing anything at all other than following a

15 particular course which can be shown. To save actually

16 drawing it out on the map again -- it is in the

17 appendix to his statement, AG34.11.

18 MR TOOHEY: Before you go to that,

19 Mr Mansfield, I may have misled you there. Looking at

20 the statement of Soldier P, paragraph 12, he says:

21 "I have no recollection of firing my weapon.

22 I must have been fired at"; not "I must have fired",

23 "I must have been fired at". Soldier F says he has a

24 recollection of firing.

25 MR MANSFIELD: This is a plan marked up by


Page 147


1 Mr Gillespie of the route that he took and various

2 points. He too went down -- he joined the march

3 because he lives much closer, he joined it much closer

4 to William Street itself, at the top end of it, and

5 walked down William Street towards what is marked on

6 the plan as B and A. He ends up at barrier 14 to begin

7 with where he has marked it as A on this marked up

8 plan. He then goes back to the point B.

9 The significance of what happens there he has

10 set out and has been referred to before, but it is of

11 some significance when talking about how far this was a

12 lawful operation and how far it was intended to

13 intimidate or oppress because effectively when he got

14 to point B, he was close to, at point B on that corner,

15 Aggro Corner another man who was hit in the mouth by a

16 rubber bullet which had come from the barrier

17 direction, that is barrier 14.

18 He did not see this person being hit; he did

19 not see who had fired the shot, but the person was in

20 fact in some pain and he recovered -- and it was

21 photographed -- the rubber bullet which was on the

22 floor. It had been cut open so that glass could be

23 pushed into the opening, but in fact when he picked it

24 up there was not any glass in it but he demonstrates

25 the way in which it had been cut open. AG34.12,


Page 148


1 please. I am afraid it is not a very clear photograph,

2 but you can see somebody is prizing open the end of the

3 rubber bullet.

4 So he has witnessed that. I am going to be

5 brief in his case, because what happens is from that

6 corner he goes down Rossville Street with another

7 person, a friend, who then goes home into Glenfada Park

8 North. He goes back out of Glenfada Park North, having

9 seen his friend home and goes to point C, which is just

10 by Kells Walk, where he sees the advent of pigs and

11 other soldiers.

12 He returns to Glenfada Park North which is

13 when it was thought that other photograph was taken,

14 but now it obviously is not him, and he witnesses

15 Mr Kelly's body being transported through the alleyway

16 between the two: Glenfada Park North and

17 Glenfada Park South. Having witnessed that and

18 speaking to youths who he thought were going to throw

19 stones at soldiers and asking them to desist, he went

20 to roughly where it is marked D in Glenfada Park North.

21 In about that position he was shot at by a

22 soldier who came in through the northeast entrance and

23 he was shot and grazed along the top of his head

24 roughly in the position that I am now indicating: the

25 bullet came across the top of his head.


Page 149


1 He ended up with those, as you have seen only

2 today in the other photographs, who were killed on the

3 corner and on the pavement in front of

4 Glenfada Park South. He did not go to hospital. In

5 fact he went to another person's house for treatment

6 and eventually he went home.

7 So his is a short, as it were, cameo of what

8 happened. He was not participating in anything --

9 LORD SAVILLE: I think I picked this up

10 before when Mr Clarke showed us this statement. If we

11 go to AG34.4, paragraph 23, of his statement. I may be

12 wrong in his recollection, but I think, when he says

13 "I began to run west", he must mean east in fact.

14 MR MANSFIELD: Yes, that is right.

15 The position, therefore, is that in all these

16 cases that I have outlined as briefly as possible

17 today, all the four cases, the two who were killed and

18 the two who were shot at and injured, none of them were

19 involved in any activity that could possibly have

20 justified the use of lethal force.

21 We say that is one factor that bears upon the

22 key question: was lawful force being deployed and used,

23 and in particular used? We say the other factors that

24 I can briefly allude to in this category on question

25 one are really general points. They are points that


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1 have been made, but they need to be made globally now

2 again. The only way that the soldiers can justify what

3 they did, we wait to see whether they admit firing at

4 these innocent victims is to say there were other

5 victims who were acting unlawfully and they faced what

6 I have already described as a storm of opposition.

7 These are the various things they have

8 described they had to face: high velocity fire, small

9 arms fire, machine-gun fire, petrol bombs, acid bombs,

10 nail bombs.

11 What is quite remarkable, it really only

12 needs to be said the once, quite miraculous is that not

13 a single soldier suffered a single injury as a result

14 of this storm. Interestingly, of course at the very

15 beginning, it was being said by General Ford that two

16 paratroopers had been injured. However, the truth is

17 not that two paratroopers had been injured, the truth

18 is one soldier was shot; it is the soldier who shot

19 himself in the foot.

20 If there could be any epitaph written for

21 this day it is that, because as you will recall in the

22 opening, they could not even tell the truth about

23 that. What they were going to do at the beginning, as

24 the soldier concerned was going to say effectively, it

25 is Gunner 42 in the 22nd Light Air Defence Regiment.


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1 It all occurred at seven minutes past 5 in

2 a derelict building in Prince Arthur Street. He was

3 resting the muzzle on his foot, but they were going to

4 say he had accidentally shot himself as he fell down a

5 flight of stairs. If that epitomises the approach or

6 the culture of lies that you have been told about in

7 this case, that beyond all else, begins to indicate

8 what really was going on that day.

9 Much more importantly than a soldier, the

10 only soldier shooting himself in the foot, of course

11 none of the vehicles apparently were seriously damaged

12 in any way by small arms fire, high velocity fire,

13 petrol bombs, acid bombs or anything else, nor was any

14 weapon found on the streets, nor was any remnant of a

15 bomb found on the streets. What are they saying these

16 soldiers, that people came out with brooms and cleared

17 it all away before they could get there? The fact is,

18 once one begins to look at it and stand back, plainly

19 this account has been grossly exaggerated in order to

20 cover the extent of fire that has been admitted, never

21 mind the fire that has not been admitted.

22 Again one of the singular features here is

23 the question of photographs because there were ten

24 military photographers that day from seven different

25 regiments taking over a thousand photographs. In one


Page 152


1 case, I give the reference because of the lateness of

2 the time, there is a soldier in the 1st Battalion of

3 the Coldstream Guards. His number is Inquiry 81. He

4 was the battalion photographer; he had two cameras that

5 day and he handed them all in to the Intelligence

6 Officer concerned.

7 He now cannot remember exactly where he was

8 other than behind a barrier for much of the time.

9 These were specialist photographers with a delegated

10 task. His task was to photograph the people on the

11 march for identification purposes, yet it is being said

12 they were all destroyed in 1972 because of a lack of

13 expertise and they could not be used. We say it is

14 nonsense. Of course they could have been used.

15 In fact we say at the time of the

16 Widgery Tribunal these photographs existed. The

17 families did not know about them, whether it was

18 heli-tele or stills. You can rest assured that if any

19 of these photographs or the heli-tele had anything

20 which exposed marchers, hooligans or anyone else with

21 weapons firing or lobbing nail bombs or photographs of

22 nail bombs on the ground near the barricade or

23 whatever, we would have seen them, or rather the

24 Widgery Tribunal would have been shown them; it would

25 have been some of the most graphic and significant


Page 153


1 evidence to be used by Lord Widgery in piling up the

2 case against those who were killed.

3 We say their disappearance, if it was in

4 1972, was not that it showed that but that it showed

5 the opposite; it demonstrated the use of unlawful force

6 by the army. And it is very much in the same bracket

7 as the disappearance and the destruction of two

8 rifles. We have not heard very much about it, but

9 apparently Mr Hone, only this year, expressed deep

10 regret that two rifles had been destroyed, rather like

11 the photographs. He ordered an investigation by West

12 Mersey Police; we await the results of that

13 investigation as to why two rifles were destroyed after

14 the Inquiry had been established after giving an

15 undertaking that they would not be.

16 It almost goes along with the fact that there

17 is no contemporaneous records at all now of which

18 soldier had what weapon and so forth, the armoury

19 register has not been preserved any more than the

20 primary source documents relating to intelligence.

21 Therefore when one looks at what justification there

22 could have been for the firing, there is little or no

23 corroboration from the very sources in which you would

24 expect to find such corroboration.

25 May I turn to the second key question, which


Page 154


1 is: if there was no justification for this how did that

2 come about; how was a situation to arise in which

3 soldiers were to pull triggers without justification?

4 We say it can be explained in this way: it is really

5 built on the back of everything that you have been told

6 so far.

7 We put at the end of our synopsis one single

8 summary of the position, and we still support that:

9 free Derry presented an anathema that was entirely

10 unacceptable to the political and military authorities

11 of the day. There had to be reoccupation at the

12 earliest possible opportunity and if this meant

13 innocent civilians might be killed or injured, this was

14 an unfortunate but necessary price to be payed for an

15 attempt to flush out the IRA said to be sheltering in

16 the vicinity. In other words the death of innocent

17 people was purely collateral; that is the term now

18 being used in other theatres of war. Make no

19 mistake -- reoccupation of free Derry or the no-go

20 areas was the end game.

21 Mr Heath wanted it in the sense that he

22 wanted law and order restored as he saw it, otherwise

23 direct rule would be imposed. Mr Faulkner was

24 resisting direct rule at all costs as a calamity and

25 recognised that essentially for there to be economic


Page 155


1 and political power, there had to be a secure base

2 which meant he had to, one way or another, overcome the

3 problem and the symbol that free Derry presented, and

4 of course the military itself did not wish to be itself

5 down-faced by an area into which, apparently, they

6 could not go.

7 There is an interesting document in the

8 Ford -- comprised by the Ford statement we have had

9 recently. If you go back, please, to the temporary

10 documents, S14.6. If one needs no other authority for

11 the proposition that the end game was reoccupation, and

12 this was all part of that process in which innocent

13 civilians might be collaterally injured, it is on 14.6

14 because there, on 7th October at the top of 3.16 where

15 the date is given, the directive which is issued by

16 General Ford having only just recently arrived, as

17 I have already said, 3.18:

18 "The overall mission was to restore ..."; and

19 if you look at (b) there it is:

20 "The overall mission" that General Ford had

21 on his mind was:

22 "Be prepared to occupy and dominate the

23 Creggan and Bogside, when sufficient forces are

24 available."

25 This is really what they had in mind. One


Page 156


1 has to remember here you have already had Operation

2 Hailstone in July in which the agenda, namely provoking

3 gunmen into target areas -- into areas where mobs would

4 be -- according to the agenda of that operation, had

5 been aborted.

6 This comes just before another operation

7 about which very little has been said. One year after

8 Hailstone, at the end of July 1972, what was predicated

9 in that paragraph was carried into effect. You had

10 Operation Motorman, which was the largest land

11 operation undertaken by the British Army since the

12 Second World War, 38 battalions with armoured

13 bulldozers and tanks went into the Creggan and the

14 Bogside.

15 We say effectively what was on everybody's

16 mind, that at the end of the day the Bogside and the

17 Creggan would be retaken by force, even if it meant

18 saturation, even if it meant there might be innocent

19 people killed. Effectively what happened in January

20 1972, before Motorman, was an operation which was

21 designed to put a marker down on the population: we,

22 the paras are here. We did not get in in July 1971.

23 However, the overall objective one day, if not today,

24 is when we come back, do you not dare put your hands up

25 behind a rubble barricade because you will be shot.


Page 157


1 And that explains, we say, why there is on the next

2 page, 14.7, a reference to Operation Motorman at the

3 top of the page in paragraph 3.20, because they made

4 the connection, this was plainly what everyone knew,

5 was the unspoken in a sense but perfectly well realised

6 ambition.

7 Major General MacLellan in his statement

8 makes a similar observation. Can we have temporary

9 statement 10, page 2, paragraph 6? It again summarises

10 everything I have been trying to convey today in

11 relation to what this was all about, the deployment of

12 unlawful force:

13 "There was a general perception [this is

14 Brigadier MacLellan speaking] that Derry ('the

15 Catholic capital of the province') was at the root of

16 the problem. The saying was 'it all started in Derry,

17 and it will all end in Derry'. It was believed that

18 the only solution was to saturate the Bogside and the

19 Creggan with troops (subsequently done a year later by

20 Operation Motorman) [in fact it was the same year] thus

21 putting on end to the IRA's domination and driving them

22 into the rural areas where they could be more easily

23 dealt with. This could not be done without more troops

24 and these were not forthcoming."

25 So MacLellan's position throughout, as you


Page 158


1 have seen in other documents was: I cannot do the

2 saturation, I have not got the troops. But in comes

3 Ford and sees an opportunity, contrived opportunity

4 using the Derry Young Hooligans as the way in, to at

5 least begin the process of subjugation of that area,

6 never mind the innocence.

7 That in a sense is the birth place of

8 Operation Forecast, adapted as it was by the

9 paratroopers on the ground. We say it was adapted

10 because what they effectively did was to organise what

11 has been called a scoop-up operation. This was no

12 arrest operation; this was an operation to gather up

13 whoever happened to be on the street corners near where

14 they went in on the assumption that everyone in the

15 Creggan and the Bogside is up to no good -- they are

16 legitimate targets and they will either be scooped up

17 for no reason, and Mr Harvey went through in

18 considerable detail, people were scooped up from no. 33

19 just because they were in a house, that was the reason

20 they felt they could actually put on the arrest form,

21 and sometimes they did not even bother to put a reason

22 down at all.

23 This was totally impractical as an arrest

24 operation as Brigadier MacLellan himself recognised on

25 a phone call when General Ford suggested he might


Page 159


1 gather up 400. They all knew that could not possibly

2 be the case because it was not. The people who were

3 gathered up were gathered up for no more reason. We

4 will await with interest what it is said those people

5 were supposed to have done in truth, no more we say

6 than those who were shot, and the Liddy tape which you

7 listened to only last week, is an example of what

8 happened to one of those trying to help what was then

9 arrested and maltreated in a serious way.

10 May I therefore end today and this resume of

11 the points we wish to make by returning to what the

12 Prime Minister said at the end of the debate in the

13 House of Commons, and I would put it at the end of our

14 submissions on behalf of these families:

15 "I am setting up the Inquiry because the

16 relatives of those who died that day have the right to

17 expect us, their Government, the British Government to

18 try and establish the truth of the events of that day.

19 I am interested in their interests, their concerns and

20 their sense of grievance, not in the sense of grievance

21 of people who have engaged in terrorist acts."

22 We say none of the people we represent were

23 terrorists and we are interested in their concerns and

24 their grievances, and may at long last, perhaps by

25 Monday, a sense of reality be brought about by those


Page 160


1 who perpetrated these terrible events.

2 LORD SAVILLE: Thank you, Mr Mansfield. We

3 have now reached 3 o'clock, so we will adjourned until

4 Monday morning at 9.30

5 (3.00 pm)

6 (Proceedings adjourned until Monday, 27th

7 November 2000 at 9.30 am)

8 Opening Submissions by LORD GIFFORD (continued)...... 1

9 Opening Submissions by MR MORGAN.................... 16

10 Opening Submissions by MR MANSFIELD................. 78