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
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,
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
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
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 --
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
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
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
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
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
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.
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
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
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
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.
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
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.
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
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
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
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".
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.
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
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."
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,
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
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
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
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
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
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
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
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
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
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
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,
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
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
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
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
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
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:
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
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?
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
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
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,
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
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
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
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
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
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
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.
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
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
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
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
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.
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
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
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.
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
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
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
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
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,
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
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
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.
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.
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
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
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
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