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
4 representations that witnesses should be called who are
5 not scheduled to be called. It will therefore be some
6 time next year. It may come in stages.
7 I can say that I should be surprised if
8 I were to reach the conclusion not to call any of the
9 members now available to be called of Support Company
10 other than those, if any, who plainly played
11 a peripheral role. There may be a number of soldiers
12 not in the 1st Battalion of the Parachute Regiment whom
13 it is quite inappropriate to call to give oral evidence
14 and there are some in relation to whom a more difficult
15 judgment will have to be made, but that will be done in
16 due course, in due time and there will be an ample
17 opportunity to influence the result.
18 MR MORGAN: I am grateful for that, sir.
19 I suppose all I really want to draw to the Tribunal's
20 attention is that although I understand the commitment
21 is made to ensure that there is an opportunity to make
22 representations before the military witnesses are
23 called, I have to say that my clients' perception of
24 the likely co-operation from the MoD is such that it
25 would be helpful if it were the case that the witnesses
1 likely to be called were identified by the time they
2 were coming to give their evidence about the events in
3 question. I simply alert you to the fact that that is
4 the position and there is nothing that I can do to
5 change that.
6 LORD SAVILLE: I am sorry, you say "if it
7 were the case that the witnesses likely to be called
8 were identified by the time they were coming to give
9 their evidence about the events in question".
10 Mr Clarke has just told you they will be identified
11 very substantially before that time.
12 MR MORGAN: I understand that. The point
13 I am making, sir, I am talking about whether they are
14 going to be identified before my clients are due to
15 give evidence before this Tribunal, because they at
16 that stage will want to find themselves in a different
17 situation from Widgery, in Mr Bridge's case, when he
18 gives evidence, not knowing who else on the military
19 side is likely to give the evidence.
20 I alert you to the fact and no doubt you will
21 take it on board and give it what weight you wish, to
22 the fact that if by the time he comes to give evidence
23 that he still does not know which military witnesses
24 are to be called and which are not, other than in
25 a general way, then I perceive that that is something
1 that he will find unsatisfactory. Whether or not you
2 take that on board or not is a matter for you, sir.
3 LORD SAVILLE: That may or may not be
4 possible, but of course you and your clients will
5 appreciate that the written statements of these
6 individuals will certainly be available and the
7 Tribunal equally appreciates that there may well be
8 situations arising where a decision not to call
9 a particular witness to give oral evidence is reversed
10 because of a new situation.
11 MR MORGAN: Yes.
12 LORD SAVILLE: I do not think we could give
13 you any undertaking that we will be able to identify
14 all those who we think should give oral evidence at any
15 particular stage. We will do our best to do it as
16 early as conveniently possible, but I repeat, the
17 written evidence will be available.
18 MR MORGAN: I accept that, sir, and I do not
19 believe I can take this matter any further.
20 Can I finish by saying that I represent two
21 clients who, in their early to mid-twenties, were shot
22 by the army in circumstances where they were expressing
23 their distress and outrage at the shooting of Mr Duddy,
24 a man who in fact was known to both of them.
25 They have remained under a cloud as to
1 whether or not they were engaged in nail bombing or
2 petrol bombing or matters of that kind, despite the
3 fact that there was no police investigation, there was
4 no forensic analysis. Mr Bridge gave evidence in
5 relation to the Widgery Tribunal and yet his evidence
6 merited effectively not a mention nor a consideration,
7 and they have waited, like many others, for the
8 opportunity to come to this Inquiry, first of all in
9 their case to seek vindication and, secondly, to seek
10 an explanation of the events which occurred, like many
11 others who are here.
12 We certainly intend to work, insofar as we
13 can, to assist the Tribunal with exploring and
14 achieving that explanation and we suspect that there is
15 much work to be done on all sides if in fact the
16 objective which is to explain with a view to allay
17 public confidence is in fact to be achieved. There is
18 nothing further, sir.
19 LORD SAVILLE: Thank you very much,
20 Mr Morgan.
21 Opening Submissions by MR MANSFIELD
22 MR MANSFIELD: Nearing, as you will now
23 obviously perceive, the end of the representations
24 being made on behalf of the families, I appear together
25 with John Coyle for Barney McGuigan and his family, who
1 was killed in Sector 5.
2 I come last because in fact he almost
3 certainly was the last person to be shot dead on that
4 fateful day. However, not far away and, as we will
5 see, photographically literally at one stage only paces
6 away, was another family whom I represent, that is
7 William Nash, who was killed at the barricade, and
8 Alexander Nash, who was his father, who was wounded at
9 the barricade and they are in Sector 3.
10 Finally, but by no means least, Daniel
11 Gillespie, who was wounded in Sector 4, which is
12 Glenfada Park North. In relation to both those two
13 families, not only do I represent them but also Kieran
14 Mallon, who sits alongside.
15 You have heard a morass of detail and you
16 have a morass of documents which is very clearly set
17 out behind you as well as the technology, but we hope,
18 in an endeavour both to shorten matters today, and
19 I have given an undertaking I will finish today, and
20 also hopefully as a framework for the future, what we
21 have done is to compile two files. So I hope you have
22 had an opportunity at least to have them in front of
23 you, and may I just pause ...
24 We searched in vain for a colour you have not
25 already got. The rainbow has been pretty well
1 exhausted and I am afraid we have come up with the
2 clerical colour of purple. That is not to associate
3 ourselves with the priest files necessarily, but it was
4 one that seemed less popular than others. May I pause
5 for a moment. (Pause). I see only one at the moment.
6 There should be one that relates to Barney McGuigan and
7 the other relates to the two Nashs and Danny
8 Gillespie.
9 MR HOYT: It is the latter one that I have.
10 LORD SAVILLE: We all have the two Nashs and
11 Daniel Gillespie.
12 MR MANSFIELD: May I pause, there should be
13 another one, it was brought up yesterday, it has been
14 scanned. May I immediately apologise to other parties,
15 in fact they will, should they so desire, have copies
16 of this. In fact all the material that is in these two
17 files everyone already has in one file or another.
18 What we have tried to do here was to bring together in
19 the two separate files the most material and relevant
20 documents so that it should avoid, so far as it is
21 necessary, traipsing through different files to try and
22 put it together.
23 We apologise to others, as you may see it has
24 been quite a task to do this ready for today and it was
25 done because it was obviously perceived that you have
1 had so much material.
2 May I take the McGuigan file first, just to
3 indicate, so everybody knows what is in it and if they
4 wish to have copies, we will have them made.
5 There is an index at the front of that file
6 which indicates that what we have done is to put in the
7 file the synopsis that I drafted in relation to all the
8 families, which everyone else has in the -- that was
9 served earlier on in the year and to which I will be
10 making reference early on. I will not be going through
11 all of it because some of it has already been mentioned
12 and I am going to keep to the undertaking not to repeat
13 matters, so far as I can, that have already been
14 developed.
15 The second heading is transcripts. What we
16 have put in there are excerpts from Mr Clarke's opening
17 to you that are relevant to, in this case, Bernard
18 McGuigan and primarily Soldier F, because of all the
19 candidates who may be responsible for his death, he is
20 can candidate number one.
21 Then we have a section of family photographs,
22 one of which will be screened in a moment, and then
23 family statements from his wife and his eldest son.
24 We have then put in a route map, by which we
25 mean we have reconstructed so far as is possible from
1 the statements available to you and everyone else, the
2 movements of Mr McGuigan on that day. The object there
3 of course is to indicate, as has been asked of others,
4 clearly what he was doing and where he went and so on,
5 which may be of assistance to know that.
6 The difficulty of course, in many of these
7 cases, particularly in his case, a very large number of
8 statements of people who saw him on the day at
9 different stages. We have only selected one or two,
10 those who were close personal friends of his. However,
11 there are in all nearly 400 statements that deal with
12 Mr McGuigan at one stage or another. So the task of
13 selecting the most relevant has been reduced to this
14 one file.
15 Then we put in the statements, therefore,
16 upon which the route is based, at divider 6. We put in
17 statements of those who saw Mr McGuigan just before he
18 was shot, and statements of some of those who saw him
19 just after he was shot and then a series of photographs
20 that you have already seen, but we have put them all in
21 the one bundle, identifying Mr McGuigan and, finally,
22 the soldier who is most relevant, his statement, Lance
23 Corporal F, or his many statements in his case, and
24 a rather graphic description from Lieutenant 227, who
25 was up on the walls at that observation point, and who
1 we say undoubtedly saw the killing of Bernard McGuigan.
2 That is the style of the file, if I could put
3 it that way. The other one, that is relating to the
4 Nash family and the Gillespie family, is in very much
5 the same form.
6 The only difference in their case is that
7 there are not so many civilian witnesses who speak
8 about their movements. There are many family
9 statements -- it is a large family -- about the
10 movements on the day. Also my learned junior has
11 contrived a map of the combined movements of the two
12 families, which is there to be seen and I will refer to
13 it later, statements of the family, statements of the
14 soldiers most relevant, P for example being most
15 relevant to William Nash and the barricade.
16 In this case, rather than transcripts of the
17 opening, we have put in the summaries that Mr Clarke
18 and the Tribunal very helpfully provided that relate to
19 the barricade, in particular where William Nash and
20 Alexander Nash are both referred to, as well as
21 a summary, it is right at the end of this second purple
22 volume, of Sector 4, which gives an overview.
23 So rather than put in a large number of pages
24 of transcript all the way through, we have done it in
25 that way. We have hoped that might provide a focal
1 point or an useful framework for you, sir, in the
2 coming days when you will be hearing witnesses who
3 relate to this and it will save perhaps undue exercise
4 in trying to, as it were, cull the material from
5 different sources.
6 That is the basis upon which we are going to
7 work. May I say before lunch today, may I begin the
8 remarks that I would wish to place before you in
9 relation to all these families: in another context, the
10 context of contemporary politics and conflict in the
11 north of Ireland and, it has been said, in relation to
12 South Africa and it has been said in relation to Chile,
13 but it is an important phrase, an important
14 observation, that you will never have peace unless you
15 have justice, and you will never have justice without
16 truth.
17 Those words have been uttered on many
18 occasions, but in the case of the families I represent
19 peace in a sense for them is not only the general peace
20 that everyone hopes will descend upon the north and
21 continue in the north in the years to come, but a much
22 more particular peace, peace of mind for them.
23 That peace of mind can only be derived from
24 a recognition on all fronts, and in particular by the
25 perpetrators of what happened on that day,
1 a recognition that those who -- and you now have had
2 a summary over a number of days -- those who were in
3 fact killed and wounded that day, particularly those
4 who were killed, were killed and wounded without any
5 conceivable justification and that that lack of
6 justification has to be seen in the context, not just
7 of the person who pulls the trigger, it is too easy, as
8 it were, just to concentrate on the end of the barrel,
9 the real question of course is: who put them in the
10 position of pulling the trigger; who allowed this to
11 happen?
12 The recognition that those who were killed
13 and wounded were done an injustice in a sense has only
14 just begun. May I just refer back to the foundations
15 for this very Inquiry, part of which has already been
16 referred to, and that was the opening debate in the
17 House of Commons on 29th January 1998. There were two
18 major reasons why this Inquiry exists, why this Inquiry
19 was set up, why we are all here. One Mr Harvey
20 mentioned this week and we have cited it in argument
21 before, was the way in which the families and the
22 dignity of the families and their desire not to seek
23 revenge or recrimination, but for the truth. That was
24 one, a dignified search for the truth.
25 But there was another. May I just cite what
1 it was, because during the debate the Prime Minister
2 was challenged about the aspect of innocence. The
3 Prime Minister said this, and it is quite clear it
4 became central to his thinking, central to our
5 existence here:
6 "May I say" replying to a question "in
7 respect of the circumstances, that one of the
8 difficulties is that it cannot be said that this is
9 a situation in which those who were killed were engaged
10 in illegal activity. It cannot be said because the
11 Widgery Report itself -- this is one of the reasons why
12 I think it is important that we reconsider what
13 happened -- makes it clear in respect of many of those
14 who were shot and killed that there is no suggestion
15 that they were acting illegally.
16 "I went through the report myself in a great
17 deal of detail in respect of the four people who were
18 killed in the Glenfada Park flats. Let me quote from
19 Lord Widgery's conclusions on the evidence. He says
20 'the balance of probabilities suggests that at the
21 time when these four men were shot, the group of
22 civilians were not acting aggressively and that the
23 shots were fired without justification'. That is
24 actually in the Widgery Report. This is not a set of
25 circumstances in which one can say there is a necessary
1 correlation between any illegal activity that day and
2 the people who were killed.
3 "That is one of the reasons why it is
4 important to consider the evidence."
5 He returned to that theme towards the end of
6 the debate and put it in these terms again:
7 "There has been much debate about the Widgery
8 conclusions, but even in relation to the
9 Widgery Tribunal's finding of fact it is clear that in
10 respect of many of those who were killed that day there
11 is no suggestion they were involved in unlawful
12 activity. That is why there is a residue of anxiety.
13 People say that if it is accepted that innocent people
14 were killed, is it not right to establish the truth of
15 what happened?"
16 So that second thrust is extremely important,
17 namely a recognition by the Prime Minister in 1998 that
18 there is no necessary correlation between those who
19 died, or for that matter who were wounded, and illegal
20 activity of any kind.
21 May I also indicate and remind everyone that
22 a year after the Widgery Report there was an important
23 judicial finding. In 1973 Her Majesty's Coroner,
24 Mr O'Neill, said this in relation to the inquests that
25 he held in relation to all these deaths, including
1 those that I represent. He said these emphatic and
2 prophetic words:
3 "It strikes me that the army ran amok that
4 day and shot without thinking. They were shooting
5 innocent people. These people may have been taking
6 part in a parade that was banned, but I do not think
7 that justifies the firing of live rounds
8 indiscriminately. I say without reservation it was
9 sheer, unadulterated murder."
10 Rather in the same vein as the
11 Widgery Tribunal findings, which in the end were hedged
12 about such that a taste was left in the mouth that
13 those who were shot or wounded perhaps had been up to
14 something at some stage. When the learned coroner said
15 that it sent shock waves once again, no doubt echoing
16 the conversation that you have heard about this morning
17 and on many occasions, and the meeting between another
18 Prime Minister, Mr Heath, the Lord Chief Justice,
19 Lord Widgery and the Lord Chancellor, Lord Hailsham.
20 This is a propaganda war, it is being said, the truth
21 cannot be said in this way, and it is very interesting
22 that after that judgment by the coroner, what
23 happened? They changed the rules, so that coroners
24 after that date were prohibited from making findings of
25 that kind.
1 Such has been the anxiety on behalf of the
2 authorities that a recognition that innocent people
3 were killed without justification should not be writ
4 large.
5 Sir, I see it is 12.00, may I return?
6 LORD SAVILLE: Yes, by all means,
7 Mr Mansfield.
8 We will come back at ten to one, please.
9 (12.00 pm)
10 (The luncheon adjournment)
11 (12.55 pm)
12 MR MANSFIELD: Sir, I was dealing with the
13 effective judgment or verdict of the coroner in 1973
14 for which, not only were the rules changed, but he
15 personally was subjected to a campaign of vilification
16 for what he had said.
17 However, we say that he was entirely
18 justified in coming to that conclusion and the
19 justification in a sense can be demonstrated by
20 conjoining two propositions: the first proposition is
21 the one that was stated on Day 1 within the first
22 minute of the opening by Mr Clarke on Monday, 27th May
23 when he said:
24 "It seems clear that most, if not all of the
25 casualties were the result of army gunfire."
1 He was referring in particular, of course, to
2 the 13 who had been killed. However, we say the same
3 proposition, that most if not all of those who were
4 wounded, were wounded as a result of army gunfire.
5 I appreciate of course there is a question in
6 relation to Alexander Nash, but most if not all of
7 those who have been identified as being killed or
8 injured on that day came as a result of army gunfire;
9 that is one proposition.
10 If the other proposition is put alongside it:
11 that none of those who suffered injury, whether it be
12 death or bodily injury, were engaged in any activity at
13 any stage that afternoon which merited them being
14 chosen as targets either for death or serious injury,
15 namely, they were innocent victims. Those two
16 propositions, we say, are known and well-known now and
17 have been known for 28 years.
18 The key question -- sir, we have put it in
19 the synopsis at OS32, if that could be brought up on
20 the screen if it is available -- the synopsis that we
21 provided at the beginning. May I read --
22 LORD SAVILLE: We have it in hard copy.
23 MR MANSFIELD: It is for the benefit of
24 others.
25 LORD SAVILLE: The members of the Tribunal
1 have it in front of them.
2 MR MANSFIELD: It is those two key questions,
3 which interestingly are questions not dissimilar from
4 questions that were asked by Lord Widgery himself:
5 "Was the deployment -- and in particular
6 obviously -- use of lethal force unlawful, in the sense
7 that it was in excess of the minimum force required to
8 support the civil authority responsible for law and
9 order?"
10 We say that is the first and obvious key
11 question. The second question that flows from that is:
12 if the force was unlawful, how did this come about,
13 namely, who authorised it and for what reasons? The
14 whole of the synopsis is based around that framework.
15 We have since then amplified those questions on a
16 second page.
17 I do not take time over the amplified
18 questions, save hopefully to pose what the real test
19 is. This is under the heading "key questions
20 amplified". The test you may wish to apply, whether it
21 be the Yellow Card or any other instruction giving
22 standing instructions to the armed forces, it all comes
23 down to one thing.
24 MR TOOHEY: What are we looking at at the
25 moment?
1 MR MANSFIELD: It is the key questions in the
2 synopsis that are amplified. You will find them in the
3 file at divider 1 behind --
4 MR TOOHEY: I have that, but when you
5 referred to them as "amplified"?
6 MR MANSFIELD: Yes, there is a separate
7 document just behind that in that same divider 1. It
8 is in the McGuigan file. It is in the other one as
9 well, but if I take the McGuigan file, divider 1,
10 behind the synopsis we have amplified the questions.
11 I am only going to, for these purposes, suggest that
12 the test we have put in relation to the use of lethal
13 force effectively incorporates and embraces the law of
14 the land at that time, and for that matter, now:
15 "Was the soldier defending himself or his
16 colleagues against a perceived threat based on
17 reasonable grounds of imminent, serious physical injury
18 or death from the civilian whom he killed or wounded?"
19 I will say it once again:
20 "Was the soldier defending himself or his
21 colleagues against a perceived threat based on
22 reasonable grounds of imminent, serious physical injury
23 or death from the civilian whom he killed or wounded?"
24 We say that is the further key question
25 here.
1 MR TOOHEY: Could I ask you, Mr Mansfield,
2 under the key questions in their original form you ask:
3 was the deployment and use of lethal force unlawful?
4 I understand what is being said about the use of
5 force. What about the deployment of force, in what
6 sense is that said to have been unlawful?
7 MR MANSFIELD: This goes back in a sense to
8 question 2, it overlies both questions. If the object
9 of the exercise in the first place was -- we have put
10 it very briefly -- to teach those in the Catholic
11 Bogside/Creggan areas a lesson, I have put it in
12 colloquial language, if the object of the operation
13 necessarily entailed a risk that people who were
14 innocent were killed, and you have been through a
15 number of documents on which that plainly was
16 recognised, that if there was an incursion using force
17 into this area, there was a risk to ordinary innocent
18 civilians.
19 Now if the deployment of lethal force was
20 intended in fact to embrace that risk, then it was not
21 lawful.
22 MR TOOHEY: Yes, thank you.
23 MR MANSFIELD: I pause on that key question
24 because one would have thought that the answer to those
25 questions are truths beyond which we would have gone by
1 now; in other words, there would by now have been a
2 recognition -- it is the recognition I mentioned before
3 lunch -- that if most of the injuries, death or
4 otherwise, were incurred as a result of military fire,
5 then what are the military saying about the identified
6 people who were not doing anything that merited being
7 shot other than being there?
8 This is the key question, because what seems,
9 if I can stand back from it for a moment, to be said,
10 but we do not know, and I will turn to the soldiers'
11 submissions in just one moment. What it appears is
12 being said globally, is: we were subjected to a storm
13 of fire which necessitated us using lethal force. What
14 appears to be said is that those against whom we used
15 that force have all disappeared, those victims are not
16 the same victims as the identified group.
17 In other words, there are two groups here
18 which have to be clearly identified, and we say beyond
19 peradventure at this stage, the identified group were
20 unlawfully shot at. The bigger question is: was there
21 ever another group against whom lethal force was used
22 or necessitated because they came themselves under a
23 hail of missiles or weaponry, nail bombs, acid bombs
24 and so on?
25 It is of some concern and some interest that
1 this still has not been addressed, in other words, it
2 still has not been recognised that if it was military
3 fire that killed the innocent, why is no soldier
4 effectively recognising that he or his senior officers
5 have recognised, because there has been no
6 recognition.
7 Could you turn to the submissions on behalf
8 of the key soldiers? Whether these will be adopted on
9 Monday, we await with interest to see. They are at
10 OS7.2. Could that be put on the screen, please? This
11 was a skeleton that was submitted towards the end of
12 July this year. It is submitted on behalf of key
13 people in this scenario: Lieutenant N,
14 Colonel Wilford, F and P -- F is relevant to Barney
15 McGuigan; P is relevant to the rubble barricade and to
16 William Nash, and for that matter to some extent to
17 Alex Nash.
18 Of course it is said on behalf of 450
19 individual clients, the points that are being made that
20 I would wish obviously on Monday, if it is possible,
21 and on behalf of the families now, it is not too late
22 for those who pulled the trigger and were responsible
23 for triggers being pulled against innocent people, to
24 say so. One would have thought by now someone would
25 have had the good grace or the courage to face this
1 reality, but it is not being faced, and when this was
2 drafted, although we did not have it and although we
3 may have it tomorrow or at least over the weekend, they
4 must have known when this was drafted what
5 Colonel Wilford is saying in his statement, which we
6 hear today, has and was received some time ago.
7 I do not make any complaint about not having
8 it; only that if they have it, they must know what he
9 is saying. Similarly F and P, and of course
10 Lieutenant N.
11 May I make a few observations, paragraph 4:
12 "It is time for the evidence to be given and
13 tested and for it not to be delayed by rhetoric."
14 May I say in that context, it is all very
15 well to say that, particularly when F and P seem to
16 have had a complete loss of memory because, in relation
17 to firing, they no longer remember even firing their
18 weapons. The question that will be posed to them: how
19 often is it that a soldier is placed upon the streets
20 of the United Kingdom and fires against civilians and
21 kills them? One might recognise the difficulty of
22 memory when serving in a foreign theatre of war,
23 whether it be the Gulf War or anywhere else, when it
24 might be difficult perhaps to make a distinction
25 between pulling the trigger on one occasion or another.
1 How can it possibly be said that they have
2 forgotten that they killed civilians or how it came
3 about that they did pull the trigger? So testing will
4 undoubtedly be interesting to see, because what we say
5 has happened here: responsibility has been erased and
6 recognition of the truth does seem to be an avenue
7 along which there is a great deal to travel already.
8 However, may I turn to the next paragraph:
9 "5. In general terms, the evidential case
10 which will be advanced on behalf of the clients of
11 Mr Anthony Lawton is that the soldiers reacted
12 reasonably to mob violence and the use of lethal force
13 against them."
14 They are, as it were, resurrecting what they
15 have been saying, we say, as a cover story from the
16 beginning:
17 "The soldiers fired shots at those whom they
18 believed to be threatening them or others -- and not
19 indiscriminately."
20 We accept those last few words. We do not
21 suggest, on this occasion, that soldiers who used
22 lethal force did so indiscriminately, oh, no; they took
23 aim; they took aim with weapons that kill and were
24 intended to kill. The question is: who are the people
25 whom they believe were threatening? We come to that in
1 a lower paragraph:
2 "There was no executive or other policy to
3 teach the IRA or Bogsiders a lesson".
4 Plainly, they have not listened to the video
5 in which Lieutenant Colonel Wilford virtually says as
6 much. However I pass over that; we wait to see what
7 Colonel Wilford says was in his mind on the day, if he
8 can remember:
9 "7. Those clients who fired live rounds
10 aimed and shot at, and only at, those whom they
11 believed to be gunmen or nail bombers threatening
12 lethal violence to them or to others."
13 I pause: so who killed those who were engaged
14 in no illegal activity at all? Someone knows, and we
15 ask again, those who know should break ground at last
16 because the families are not looking for recrimination;
17 they are not looking for vengeance; they are looking
18 for their own memories to be at last, as it were,
19 erased for them.
20 Interestingly, the second half of this
21 paragraph says:
22 "However, it does not follow that those who
23 have been identified as having been killed or wounded
24 on 30th January 1972 were themselves gunmen or nail
25 bombers."
1 Well what does that mean? It is not saying
2 that the military killed them, or is it saying the
3 military did kill them but they were not gunmen and it
4 was not justified, or are they saying they were not
5 gunmen but they were near people who were gunmen? What
6 is being said?
7 One might have thought at this stage one
8 would have had a clear indication, and one asks for it
9 on Monday, of exactly what the soldiers are saying, not
10 all 450 but the selected key ones, and in particular
11 the senior officers who were in charge on the day.
12 I do not go through the other openings
13 because in fact they do not bear upon so much the
14 particular key soldiers with which I am concerned for
15 those I represent. Returning, as it were, to the key
16 question and the recognition of the truth, as it were,
17 of what happened. We should be moving into the arena
18 of how did these unlawful killings and injuries occur;
19 why were they occasioned in this way?
20 However, it seems we have to tread through
21 the foothills of truth first of all to even get to that
22 stage, and I hope that perhaps those foothills will be
23 made easier by what is said on Monday and by what the
24 soldiers themselves say. They have already been
25 granted anonymity, they are already asking not to come
1 here to give their evidence. How much protection do
2 they want before they will finally admit the truth, or
3 is it in fact they are never ever going to be prepared
4 to admit it?
5 It is of some interest that the first glimmer
6 of a recognition of truth has come about, not because
7 they have revealed it -- and I do not ask for it to be
8 played, I do not ask you to look it up again -- it has
9 already been played and referred to on more than one
10 occasion, but that, if we may say so, stunning
11 tape-recording on the day between undoubtedly an
12 English soldier and another voice, indicating that the
13 operation has gone badly wrong; the other voice is
14 virtually saying, so what, but it continues "it has
15 gone badly wrong because we have shot the wrong
16 people".
17 All we can say is: at last somebody has been
18 prepared to reveal the truth, although not by the hand
19 of those who perpetrated it in the first place.
20 We say the factors bearing on these, I am
21 afraid, the foothills of truth, in other words the
22 factors that bear upon murder, unlawful killing, we
23 have set out in the synopsis. I am only going to
24 select a few of the factors.
25 One of the major factors that you may feel is
1 appropriate and is obvious is that, if it can be shown,
2 without question, and we say it can, that none of these
3 people who were injured that I represent ever presented
4 a target worthy of being shot at for any reason at all,
5 then we await, as we say, who it was who caused these
6 injuries and for what pretended reason is it going to
7 be suggested.
8 May I deal, therefore in this context first
9 of all with Barney McGuigan as a target, because
10 perhaps amongst all the images, as Mr Harvey outlined
11 at the beginning of last week, his is one of the
12 abiding images, one of those images that encapsulates,
13 with blood on the pavement, encapsulates what truly
14 happened that day, because he represents an honest,
15 committed, responsible community, he himself and his
16 family.
17 Could we have Q6, please, on the screens?
18 Sir, you have in the divider, but we will put it on the
19 screen so everybody has it, you have a plan in the
20 McGuigan file at divider 5 which hopefully has been
21 marked up. I start with where they live, the McGuigan
22 family first of all. It is now being marked on Q6 in
23 blue. It is in pink on the diagram that you have.
24 They lived at number 20 Innisgowan Crescent.
25 Could we have photograph OS2.20, please? That is
1 Barney McGuigan obviously before the fateful day. He
2 was aged 41. At the time of his death there were six
3 children, many of whom are here today: Charles, 16,
4 Margaret, 13, Bernard, 12, Alice, 9, Bridie, 8 and
5 Garvan, 6. The statement of Charles McGuigan is in the
6 bundle. I do not ask you to look at it, in fact he did
7 not go on the March. He was told not to go on the
8 march. In fact he did go down to the vicinity and he
9 too became a victim; he was shot at and he will
10 describe what happened in his own words.
11 However, that was the family; a law-abiding
12 family, in fact far more than that. Mr McGuigan
13 represented everything that is in a sense the
14 antithesis of Lieutenant Colonel Wilford's view and
15 General Ford's view of the Creggan and the Bogside. He
16 was not a member of any paramilitary organisation; he
17 was not a member of any political organisation that
18 might be allied to such organisations. I am only going
19 to summarise the statements of which I have already
20 indicated there are hundreds.
21 He was a respected and sometimes called
22 "community man". He was not only honest and decent,
23 he was quiet, friendly, generous, hard-working
24 conscientious and responsible. In fact he embodied
25 perhaps the humanity of life, even in the midst of the
1 trouble that his family had faced, living there next to
2 the cemetery. He was a painter, as you will see in the
3 picture, by trade. In fact the week before he had
4 decorated Teresa Harkin's house and during that year,
5 for those who could not afford it, he had helped to
6 engrave marble headstones in the city cemetery not far
7 from where he lived.
8 He also worked with a local school. I wish
9 to read one document in a moment to help to stamp out
10 vandalism, vandalism that was not only attacking their
11 community by young people who were unemployed and often
12 had nothing else to do, but also young people who
13 sometimes attacked the local army base within, and not
14 very far from, the city cemetery.
15 He was Treasurer of Bligh's Lane -- you will
16 see where Bligh's Lane is on the plan -- Tenants
17 Association, trying to obtain at that time premises to
18 establish a community centre to help keep those young
19 people off the street. This was no DYH, no Derry Young
20 Hooligan.
21 You, sir, have it in the documents here, a
22 letter provided to the Widgery Inquiry in 1972. We can
23 have it on the screen as AM269.17. It is in your
24 bundle, if you prefer to see it there, behind
25 divider 4. This is written on behalf of the Principal
1 of Saint John's Primary School in Bligh's Lane:
2 "I have known Mr Bernard McGuigan of
3 20 Innisgowan Crescent, Derry for a period of almost 25
4 years. I can in all honesty describe him as one of the
5 finest men I ever met. I taught two of his brothers
6 and two of his own sons. He was utterly devoted to his
7 wife and family and frequently came to the school to
8 inquire as to the progress his children were making and
9 to see if he could assist in any way to further their
10 education.
11 "Around this particular school in
12 Bligh's Lane of which I am the Principal there has been
13 a considerable amount of unrest, shooting incidents
14 since last September [which was 1971] As well there
15 was considerable annoyance caused by teenagers throwing
16 stones and missiles at the nearby army post every
17 afternoon.
18 "One Sunday before Christmas [the Christmas
19 before he died] Bernard McGuigan came to my home to ask
20 if he could have a short parents' meeting in a room in
21 the school to organise the fathers in the district to
22 stop the stone-throwing and to try to restore some
23 semblance of discipline to the local teenagers and to
24 improve their behaviour. 40 fathers came to the
25 meeting and organised themselves to take care of the
1 school to prevent any further damage to it. They did
2 their very best to bring the stone-throwing to an end
3 and eventually did so.
4 "That action sums up Bernard McGuigan because
5 it was so typical of him. He was utterly devoted to
6 peace, his family and the welfare of our community. He
7 was the most helpful parent connected with this school
8 and we deeply regret losing him, especially in the way
9 we did lose him.
10 "He was a really wonderful man."
11 One in a sense wishes that the soldier who
12 pulled the trigger could read that letter and whether
13 he would still feel that he had any justification for
14 what he did because when Mr McGuigan went on the march
15 -- and he did go on the march -- it was the first time
16 he had ever been on such a march. He did so because
17 basically, as you will have gathered from that document
18 and all the other statements, the epithets of which
19 I have already put to you about his nature, because he
20 had a strong sense of community and he had a strong
21 sense of fairness.
22 Fairness is important because it relates to
23 civil rights. It is of interest in this context -- you
24 have it again in the bundle behind divider 7 -- that a
25 Member of Parliament who knew him well at the time, who
1 was also on the march and was due to speak on the march
2 at the Free Derry Corner, has a short but telling
3 paragraph about Bernard McGuigan.
4 Could we have KC12.18, it is in this divider
5 that you have at 7 or it is coming up on the screen
6 now? Ivan Cooper was a Protestant as well as being a
7 Member of Parliament. Ivan Cooper had been quite
8 legitimately concerned, as he puts at the beginning of
9 his statement, with the non-violent struggle for civil
10 rights, and he had taken his inspiration from great
11 civil rights leader such as Ghandi and Martin Luther
12 King. However he had spent most of his life in the
13 Bogside, similar to Barney McGuigan. This is what he
14 says about Barney McGuigan at paragraph 26:
15 "While still at Bishop's Field ...": as you
16 know that is where it started, the march:
17 "... I also had a conversation with Barney
18 McGuigan, a gentle man, who I had known well for a long
19 time. Barney McGuigan had a brother, Chuck McGuigan,
20 who was a well-known country and western singer.
21 Barney McGuigan was also well-known around Derry and
22 would often be seen in his overalls. Barney McGuigan
23 lived in a house which overlooked the graveyard in the
24 Creggan area. He was a moderate man with no interest
25 in structured politics but a strong interest in the
1 civil rights movement. Barney McGuigan had worked with
2 me in the shirt industry."
3 That was some years before. Barney McGuigan
4 and Ivan Cooper were not alone that day on the march of
5 people who crossed boundaries essentially, Protestant
6 and Catholic, both of whom had sincere beliefs in the
7 establishment of a fairer society. If I may pause in
8 the analysis of Barney McGuigan and why he was there
9 and why he went on the march at all, although it had
10 been banned, was because there came a stage in the
11 lives of ordinary people in the Creggan and the
12 Bogside, people who cared about ensuring that their
13 families grew up to know a better and a brighter
14 future; you cannot do that without a base of equality.
15 That base of equality has been recognised,
16 both in the southern states of the United States where
17 there has been segregation, apartheid and oppression,
18 as well as in South Africa. The reason I pause for a
19 moment is merely to highlight a theme which Mr Harvey
20 highlighted in a different way. I can do it shortly
21 thanks to his very detailed opening.
22 It is this: what has to be recognised by
23 1968 and 1969 is that the Creggan and the Bogside had
24 become a ghetto; it had become an isolated and
25 imprisoned community; imprisoned effectively by agents
1 of the British Government, namely Unionist politicians
2 here; imprisoned to such an extent -- it is described
3 graphically, I do not read it and you will no doubt
4 already have read it in a number of books; one: "Those
5 are Real Bullets, Aren't They?" It has been referred
6 to many times. There is a graphic description at
7 page 28 in that book of how, by 1968 and 1969, this
8 imprisonment had occasioned a severe housing shortage,
9 it has already been described "searing unemployment";
10 about an a third of the population unemployed.
11 As Seamus Deane came to describe: "the
12 Bogside was once a street, now it is a condition".
13 But perhaps the starkest factor in this
14 period, I do not think it has been mentioned, but it is
15 of some importance, it is over and above the lack of a
16 job, the lack of employment, the lack of housing,
17 really the decent fabric, there was no universal
18 sufferage. It is astonishing to recollect that in 1964
19 only a third of the Bogside had the vote because it was
20 rate payers. In fact universal sufferage only came
21 about in 1969, something that John Hume had been
22 campaigning for, that he would not rest until this
23 obvious facet of life was rectified that everyone had
24 one man, one vote; something that is crucial and
25 recognised to be crucial to every democracy had been
1 denied until the civil rights movement began again in
2 1968.
3 Set alongside the fact, and it is recognised
4 by the military authorities -- they make reference to
5 it -- by 30th January 1972 the population of Derry was
6 55,000; 33,000 were Catholic and the majority of them
7 lived in the Creggan and the Bogside.
8 So not only had there been gerrymandering
9 effectively to ensure, despite that imbalance of
10 population that the minority, the 33 per cent who were
11 Protestant effectively held on to power in the
12 corporation and held 60 per cent of the seats. Is it
13 any wonder that without work, without housing and
14 without the vote, that people should say "we have had
15 enough". Ordinary people; would anyone in this room
16 have tolerated it, because it is easy to say, "keep
17 quiet, stay at home, draw the curtains". It is when
18 people keep quiet, draw the curtains, stay at home that
19 the community suffers. It is only when people like
20 Barney McGuigan and others who went out that day stand
21 up for these values and make them known to a much wider
22 public that change occurs.
23 The development is interesting here because
24 what happened in the end was that the cause of the
25 unrest, the housing, the employment and the sufferage
1 was converted into a protest of a different kind
2 because the authorities during this period of time, as
3 you have already been told, wished to oppress the
4 protest, no marchers, no sit-ins, no pickets.
5 When the Northern Ireland Civil Rights
6 Association in July 1968 began the process of alerting
7 effectively the world to the inequalities that I have
8 just mentioned, they were banned.
9 So it went on until 1st January 1969 when a
10 march organised by the People's Democracy from Belfast
11 to Derry was attacked on the outskirts of Derry at
12 Burntollet Bridge, attacked by Protestants and
13 effectively no action taken by any authority in the end
14 to protect them. This was before universal sufferage
15 was granted later that year.
16 It is not surprising that John Hume at that
17 time said he would not rest until normal democracy was
18 put into effect. It was therefore not surprising that
19 in the same year, 1969, effectively no-go areas or Free
20 Derry became the embodiment of resistance to the
21 oppression that had taken place.
22 Then the mood, as it were, then the interest
23 and the focal point and the concern of the people
24 wanting to ensure that the issues of civil rights was
25 put forward was what means were they going to be able
1 to use, and the concentrated energy was turned to the
2 question of internment, which was in fact the pinnacle
3 on 9th August 1971 with the following consequential ban
4 on demonstrations and marches, such that by the end of
5 1971, 900 people had been interned, many of them
6 innocent, as were the people on the march that day.
7 They had been taken from their homes, rather
8 like Ivan Cooper was taken from his home, as it is said
9 in his statement at paragraph 5:
10 "Internment without trial was introduced in
11 Northern Ireland in 1971 which cut at the very core of
12 people committed to civil rights. I was arrested [Ivan
13 Cooper says] in Laburnum Terrace in August 1971 by
14 troops under the command [as it happens] of
15 Paddy Ashdown, leader of the Liberal Democratic Party.
16 It was known that innocent people were being interned
17 on the basis of out-dated intelligence."
18 Therefore the struggle was converted not so
19 much into the basic issues, but into how was it
20 possible to ensure that the basic issues were made
21 public. But the means which they sought to use was of
22 course banned or battoned off the streets, and the
23 example which happened but one week before this you
24 have heard about at the Magilligan camp.
25 This no doubt provides the background to one
1 other theme I want to mention in the context of Barney
2 McGuigan, that the military authorities therefore,
3 looking at this scene of civil unrest which actually
4 was not civil unrest in any pejorative sense, it was
5 civil protest, justified protest. However, the
6 authorities, particularly General Ford and Lieutenant
7 Colonel Wilford, began to, as it were, mount a simple
8 equation. I will demonstrate very shortly what the
9 simple equation was.
10 The simple equation was this: anyone who
11 lived in the Bogside and the Creggan was Catholic;
12 anyone who was Catholic was nationalist; anyone who was
13 nationalist was associated or sympathetic to the
14 paramilitaries of whichever hue that happened to be
15 dominant in that time within that area, PIRA or
16 otherwise.
17 That very simple equation may be thought to
18 be too simplistic, but that is precisely the thinking
19 of these officers and this bears upon the question that
20 you have already asked about the deployment and use of
21 unlawful force. Essentially, what the army thought
22 they were doing -- I will be precise ; I do not mean
23 all soldiers that day, but certainly the paratroopers,
24 and there may be others -- was that anyone who was on
25 the street when they moved in was a legitimate target.
1 It was being there was enough because of this
2 background of living in this area and because of their
3 association with civil rights, because then they moved
4 from civil rights to suggesting, as they have done,
5 that the national -- the civil rights movement
6 effectively -- was an ally of the IRA.
7 In other words, they have encapsulated in one
8 short form that the Bogside and the Creggan is the PIRA
9 and NICRA is the PIRA, therefore anybody on the street
10 is a legitimate target, whether they are doing
11 something or not; these are aimed shots at people who
12 they thought were quite legitimate, irrespective of
13 what they were doing.
14 The reason we are able to say that that
15 approach is clearly emanating from above can be seen in
16 General Ford's most recent statement. Could we have
17 temporary statement 14.1, please? That is the first
18 page of his statement and indicating when he arrived.
19 He only arrived, as you may have recalled in July 1971,
20 coming under the appointment -- it has already been
21 touched on today, so I do not develop it...
22 Interestingly on the next page, 14.2, is the
23 reference that has already been made to the fact that
24 they are well accustomed to a plan within a plan; that
25 is at paragraphs 2.4 and 2.5 as to, as it were, hidden
1 agendas and the way things operate. That was in
2 relation to internment.
3 However, the particular paragraph of interest
4 comes later on this topic of attitude, at paragraph
5 3.30, which is on page 14.8. At 3.30, the paragraph
6 that is highlighted there is the belief he had formed
7 by 14th December 1971. It is a crucial period, where
8 he is doing a written appreciation of Londonderry, one
9 wonders on what basis, but this has already been
10 reviewed in another context.
11 It is this paragraph:
12 "At this time my belief was that the Bogside
13 and Creggan were completely dominated by extremists.
14 From a physical point of view, some 50 barricades
15 prevented army entry, and law and order -- such as it
16 was in those areas -- was the law and order of the IRA
17 and its supporters. There were at least 1,000
18 activists [we await with interest how that is arrived
19 at] and from what I was told by others, I understood
20 that 90% of the population would be supportive of
21 them."
22 That theme effectively, that it is a
23 community that is riven effectively with terrorism;
24 that they can all be associated, it is replicated --
25 I do not ask you to look it up -- later in the
1 statement, at paragraphs 4.11, 4.12 and so on. That is
2 the theme, that the approach they are having. You set
3 that alongside the observations -- I give you the
4 reference only, G74.37 -- from another officer, Tuzo,
5 that behind all this stands NICRA, an active ally of
6 the IRA.
7 Therefore, if we are right that this is the
8 mentality, this is the approach of senior officers, it
9 explains precisely why Colonel Wilford in that video
10 clip you saw the other day shown by Mr Harvey "Remember
11 Bloody Sunday", when pressed by the interviewer, if you
12 remember, about "did you not shoot innocent people?" ,
13 was quite unwilling to concede that anybody innocent
14 had been shot because no one was innocent, they were
15 all out to make trouble; he stated that blandly. I do
16 not know whether we are going to see it reproduced in
17 his statement.
18 It also explains why a reference is made on
19 the tape revealed only the other day that General Ford
20 on the news that people had been killed that day,
21 civilians, was lapping it up and said it was the best
22 thing he had seen for a long time. Why? Because they
23 both, Ford and Wilford, believed firmly that the
24 Bogside and the Creggan deserved what it got because
25 they had painted in their minds this simplistic picture
1 that anybody congregating on the street in that area
2 must have an unlawful purpose: if it moves, shoot it.
3 Before returning to Barney McGuigan, one has
4 to make this observation: although in these documents
5 reference is made to the concern particularly by Ford,
6 we say exaggerated rather like Derry Young Hooligans,
7 but undoubtedly a concern, that the IRA would use a
8 march or a demonstration by NICRA, if I can use the
9 shortened form, or at least the hooligan element that
10 might attach itself to such a march.
11 So far as one is aware, there was in fact no
12 history that gunmen ever used a NICRA march for those
13 purposes. In fact, as you will see from Ivan Cooper's
14 statement, the police had intelligence, and you know of
15 this already, that if there were gunmen, they were
16 going to stay away.
17 Of course one has to look and again stand
18 back. We have here 90-year-old Lord Fenner Brockway
19 addressing a meeting, a prestigious speaker being
20 brought into the midst of apparently terrorist
21 territory at Free Derry Corner. No one is sensibly
22 going to endanger his life within that community on
23 that day.
24 If the authorities had had sensible
25 intelligence and had listened they would have known
1 that, but of course they were not interested in
2 sensible and accurate intelligence. They wanted
3 excuses; excuses for carrying out an objective which
4 was quite different.
5 That therefore is the background,
6 essentially, to the interest in a sense that Barney
7 McGuigan himself has in going on this march. It is to
8 uphold what are basic civil rights.
9 I return to the weekend of the 30th, the
10 Sunday. That day he went to Mass at a local church
11 first; he then went to a funeral. He had Sunday lunch
12 and he left the house at about 2.30 wearing a navy
13 anorak and a blue/grey suit and no scarf. Sir, I am
14 not going to spend time today, although I will refer to
15 photographs later, on proving beyond a shadow of a
16 doubt, because the witnesses are manifold that he was
17 not wearing a scarf and his wife has always proclaimed,
18 and she gave evidence on more than one occasion both at
19 the Inquiry and at the inquest, that he did not have a
20 scarf but no doubt it was thought to be part of the
21 piling up of the case in that note about how
22 Lord Widgery would approach this matter.
23 There was no scarf, and if we could go back
24 to Q6, please, you have the plan in the folder; I can
25 quickly indicate his route. He went to Bishop's Field,
1 which is now being marked, and he followed the route of
2 the march, which can be done quite quickly because you
3 have seen it many times. There were people who saw him
4 at Bishop's Field as well as Ivan Cooper and who were
5 with him.
6 When we get round to Lone Moor Road, he was
7 joined by two friends who knew him well. Their
8 statements are in the bundle you have: one is
9 Liam Lynch and the other one is John Magee. It was
10 John Magee who stayed with him the longest and who
11 describes the route.
12 I do not read their statements; I summarise
13 their statements because the position is from them and
14 from everybody else who sees him, both on the march and
15 finally when we get down to the Rossville flats, that
16 he was carrying no weapons; he was carrying nothing
17 that could be misinterpreted as a weapon; he engaged in
18 no aggressive activity whatsoever.
19 At some stage he became separated, and it is
20 almost certainly somewhere near the top of
21 Chamberlain Street and the junction with William
22 Street, from Liam Lynch and he went on in fact with
23 John Magee. The route that he took, although on the
24 bigger map it is difficult to follow precisely, I can
25 describe it so that it is not too difficult. They
1 walked down effectively the High Street to
2 Waterloo Street because they are trying effectively to
3 avoid any trouble. Having walked down Waterloo Street
4 towards the Rossville flats, they go across that
5 walkway. You have it perhaps in the detail that may be
6 needed, AM224.6. This is a map marked up by Magee and
7 you will see that the figures 6, 7 and 8 on the screen
8 show the route that the two of them took: across the
9 walkway towards block 3, inside and along block 3,
10 across another walkway into block 2 on the inside of
11 the block and then finally down to ground level at
12 about the junction of block 2 and block 1.
13 Magee then goes off because he wants to look
14 round the block and see what is going on up the
15 street. Barney McGuigan does not want to go round the
16 corner. He wants to, from that position, listen to
17 speeches that are going to and are about to happen at
18 Free Derry Corner, which is only a matter of yards away
19 and could be heard from the position in which he was.
20 It is quite clear that it is about the time
21 that the speeches begin -- that is confirmed by Ivan
22 Cooper who was effectively chairing the meeting -- it
23 was at about the time that the meeting was about to
24 begin that firing started. We say "firing", and his
25 son, Charles McGuigan, who, by this stage, had come
1 down to Rossville Street himself and was standing near
2 the pram-way in Kells Walk and was looking and saw the
3 first arrival, we will say that the firing that was
4 opened on the civilians was not in response to any
5 lethal fire, let alone from the individuals concerned.
6 However, Mr McGuigan remained on that corner
7 by those blocks between the two that I have just
8 mentioned, namely 1 and 2. There is in this context a
9 photograph of him standing. Could we have EP32.3.001?
10 In fact this is a labelled photograph, but it is not
11 entirely clear. You have seen it before. He is the
12 gentleman with his head -- the reason I ask for it to
13 come up again, what is interesting about this
14 photograph, as you will see where it is taken, looking
15 at the gable end of block 1 with block 2 in the
16 distance, is that what one sees is in fact the back of
17 his head towards the left-hand side. What we know from
18 the injuries is that the bullet that struck him, the
19 single aimed shot by a soldier, went in behind the left
20 ear and straight through the right eye.
21 Sir, without going into the details, you will
22 know that a match box was placed near this scene later
23 as a result of what happened and what was in the match
24 box. It is the left side of his head in that context.
25 There are a number of statements which deal
1 with what happened. We have put some of them into the
2 bundle. Geraldine McBride, who was then known as
3 Geraldine Richmond, and you have seen her on various
4 photographs, there is a description which is worth just
5 referring to. It is supported by others at AM45.5. At
6 the top, paragraph 22, she is dealing with the death
7 and the shooting of Hugh Gilmore. Later she goes to a
8 point near the end of block 1 and the Rossville flats
9 which she has marked on a plan. Paragraph 24:
10 "Whilst we were huddled together I heard a
11 man's voice calling 'I do not want to die alone --
12 somebody help me'."
13 It is suggested that is Doherty round the
14 corner in the direction of the walls, effectively on
15 Fahan Street East and the steps:
16 "I could also hear him whining and saying
17 'God help me'. The whining would stop and then start
18 up again. I think the calling was coming from the
19 Fahan Street East and the Fahan steps area. I think
20 from what I heard later that the man was
21 Patrick Doherty. I wanted to go out to help him but
22 I could not move, I was too scared".
23 As you will know she was in a bit of a state
24 because of what she had already seen:
25 "We all huddled together tighter. The man
1 was obviously in pain although we could not see him.
2 All I could see was Hugh Gilmore's body. By the time
3 I heard the man calling he had already been shot.
4 "25. Barney McGuigan, one of the men huddled
5 at the wall with me, was a community man and was
6 generally looked up to. After a short time (although
7 I do not know how long) Mr McGuigan said that he could
8 not stand the sound of the man calling any longer and
9 that if he went out waving a white hanky, they would
10 not shoot at him. We tried to dissuade him from going
11 out. We told him they would shoot him. However, he
12 was brave and he stepped away from us holding the white
13 hanky in his hand. Although I cannot be certain
14 I think he held it in his left hand. He walked out
15 slowly sideways ...".
16 We say that is interesting because if he was
17 roughly in the position of the photograph with the
18 left-hand side of his head towards the Glenfada Park
19 North and he walks out sideways in order to, as it
20 were, keep an eye on what is happening and where the
21 man is, it might explain why he had, if not his back at
22 least his head because of what she then says:
23 "He walked out slowly sideways in an arc
24 towards where we thought the sound was coming from. He
25 stepped out about 10 to 12 feet away from us. All the
1 time he was walking I could see the left-hand side of
2 his face."
3 She is alongside the gable wall:
4 "We were calling to him all the time to come
5 back. He kept looking back towards us. I could see
6 bullets going past us and Mr McGuigan from all
7 directions although I did not hear automatic fire."
8 In the next paragraph:
9 "I remember hearing two distinct shots.
10 After the first one Mr McGuigan turned back towards us,
11 and although I cannot be certain I think he turned his
12 whole body and not just his face. I did not see the
13 bullet hit anything, I just heard it. The second shot
14 hit him ...". I am not going to read the rest.
15 "The second shot hit him"; "he could not
16 stand it any more" because he was the kind of man who
17 was conscientious, who was touched by humanity and was
18 destroyed himself in but a few seconds. Whoever fired
19 that shot -- and we say it has to be one of those
20 soldiers, we say almost certainly F or someone with F
21 in Glenfada Park North because, as you know, the only
22 soldier that accepts, that does not mean to say there
23 are not others from that area, who admits any
24 trajectory anywhere near this position is F. But of
25 course what Barney McGuigan was doing does bear no
1 resemblance to the description that F has given.
2 You will also recall that F of course
3 initially made no reference to shooting to the south of
4 the Rossville blocks. It is only when his rifle is
5 associated with another death that somebody has to work
6 out what he was really doing that day. Then of course
7 he does confess to shooting, but not of course in the
8 same, as it were, pattern of behaviour that Barney
9 McGuigan was undoubtedly engaged in.
10 That is seen -- I do not read it now, it was
11 read out in opening by my learned friend, Mr Clarke --
12 the soldier on the wall, 227, in fact has given a
13 statement in which he has given a description --
14 I merely give the reference. I cannot ask for it up on
15 the screen. It is 2204.005, the very last statement in
16 this bundle, in which it is quite clear he is
17 describing the actions of a paratrooper kneeling by a
18 lamppost on Glenfada Park North, firing along the
19 southern trajectory and killing Barney McGuigan.
20 We would like that paratrooper to step
21 forward now because the product of what happened on
22 that day has been seen in a variety of photographs and
23 may I say at once, the McGuigan family are here today,
24 and it was not until a year or so ago that any of them
25 could look at these photographs and Mrs McGuigan never
1 has looked at any of these photographs. I say it now
2 because she feels that the photograph has to be shown
3 in public. She is extremely grateful to the tactful
4 and courteous way in which this matter has been dealt
5 with by the Tribunal and Counsel, but this is the
6 photograph, the abiding image of a man shot down for
7 what he stood for effectively. It is EP31.1. It has
8 been reproduced in lots of different albums. Soon
9 after this an APC comes round the corner and you will
10 see that at EP31.2. you have seen this before, but
11 that puts it in context. You will also notice there is
12 no scarf.
13 What had happened here is that having been
14 shot by a soldier, we say, near the corner of Glenfada
15 Park North and although Geraldine Richmond or McBride,
16 as she now is, originally thought it may have come from
17 the walls, she believes in fact it came from
18 Glenfada Park and the Soldier 227 really confirms that
19 it did come from Glenfada Park.
20 What happens is that members of the public
21 then stepped in, as it were, to cover him up; that is
22 how the scarf got put on to Bernard McGuigan. There is
23 a photograph near the scene. Can we have EP.19.8.001?
24 It is possible, one cannot go further, but there is
25 somebody in the vicinity who is wearing a scarf, and
1 that scarf or a similar one is seen in earlier
2 photographs.
3 It may be that one, it may not, but somebody
4 put a scarf down and the statement of Patrick Clarke,
5 which again I do not ask you to look at, nor do I ask
6 you to look at the photographs which go with that,
7 effectively what you see, Patrick Clarke who is on the
8 scene and says a prayer for Mr McGuigan on the spot, is
9 that you see him putting on to Mr McGuigan --
10 originally he put his own jacket on, then he took it
11 off and Mr McGuigan ends up covered with, appositely, a
12 civil rights banner and also a white blanket, and many
13 of the photographs you have seen -- can we have one of
14 these, EP22.13 -- that is how he ends up, because
15 Clarke has removed his shoes, that is Bernard
16 McGuigan's shoes and straightened the body out as a
17 mark of respect.
18 One has therefore a very clear, unadulterated
19 and emphatic picture of what happened to Barney
20 McGuigan. He merely went out to make a point and he
21 was shot effectively for being there, for having
22 effectively the audacity to be there and to render
23 assistance to others.
24 Interestingly, one of the photographs that
25 were taken at that corner -- could we have
1 EP26.21.00 -- conveniently ties in with the other
2 family because the gentleman on the corner is labelled
3 as Alexander Nash.
4 Alexander Nash was also on this corner at
5 about this time, as was Ivan Cooper. Before I develop
6 what happened to the Nashs effectively, the statement
7 of Ivan Cooper indicates, I merely summarise it once
8 again, shows that he --
9 LORD SAVILLE: This photograph, am I right in
10 thinking, that by this stage Alexander Nash had been
11 wounded?
12 MR MANSFIELD: Yes, and probably the body of
13 William, as it says in the NPC. I am working backwards
14 effectively. Alexander Nash has walked round the
15 corner from the barricade. Meanwhile, whilst all this
16 has been going on, Ivan Cooper has had to crawl from
17 the platform at Free Derry Corner and he gives also a
18 graphic version. As he crawls across to this place he
19 too sees Barney McGuigan shot down by military fire and
20 says "Barney never had any connection with any
21 subversive organisation and would never have been
22 throwing nail bombs".
23 That, in a sense, is the epitaph of the very
24 man who had organised and help organise and was
25 speaking on the civil rights march, watches one of
1 those who he has known as a staunch supporter of civil
2 rights gunned down in front of the very platform where
3 he was to hear Lord Fenner Brockway speak.
4 Alexander Nash, if I may turn to him and
5 William Nash, in a sense obviously are together
6 although not on the march together. Can I deal with
7 his family? Just to put it in context: William Nash
8 was one of the three shot at the rubble barricade which
9 is just round that corner, in other words, William
10 Nash, John Young, Michael McDaid, all young men, a
11 group of three. As the summary indicates, almost
12 certainly shot at the same time. As the summary
13 indicates, that is the summary Mr Clarke very kindly
14 provided, the person who had been shot just before them
15 was Mr Kelly.
16 So effectively Kelly is shot, then shortly
17 after William Nash, John Young and Michael McDaid.
18 Alexander Nash was aged 52 and he, too, was a painter.
19 He had a large family, 13 in all: 8 brothers and 5
20 sisters. William, obviously, one of the younger sons.
21 Rather like the McGuigan family they had strong
22 connections with the armed forces, the British armed
23 forces: in the McGuigan's case it was the RAF and
24 links with the forces, both father and father-in-law
25 during the First World War. In this case two of the
1 sons were closely linked with the British Army, even at
2 that time, Eddie and Paddy Nash, the Enniskillen
3 Fusiliers and the Royal Corps of Transport. This is
4 not a family, therefore, that set itself up in any way
5 as it were to subvert the British Army, or as no doubt
6 some would have seen it, the army of occupation.
7 William had attended a local school and
8 college, Saint Joseph's. He had left at 15. So he was
9 15; his father was 52. Neither of them had political
10 affiliations of any kind. William became a docker,
11 particularly at that time exporting potatoes. He too
12 -- this has been mentioned -- the son, it has been
13 mentioned before, had a considerable talent and
14 interest in boxing, as had his brother, another brother
15 called Charlie Nash. It has been mentioned in other
16 documents that Charlie Nash became a well-respected and
17 well-known national figure, representing his country in
18 the end at the Munich Olympics.
19 This is a family with talent, as were the
20 McGuigans. This is a family not hell bent on
21 disruption. One of the reasons we say disruption was
22 certainly not on their minds that particular weekend is
23 for a very good reason, that another brother, John, who
24 was on the march was getting married. On Saturday 29th
25 John married Margaret Friel in St. Mary's Church, the
1 church to which in fact Mr McGuigan had been, the local
2 church.
3 Charlie was the best man. They were about to
4 go on their honeymoon on the Monday. There was an
5 added complication, and it is a fate, an irony of life,
6 that at that time, Mrs Nash, the mother, was in
7 hospital having suffered a serious heart attack. The
8 irony is this, the hospital was Altnagelvin where
9 William was to be taken, taken as Ivan Cooper describes
10 when he went to the hospital later on to see how they
11 were treated.
12 Could we have KC12.27, please? The hospital
13 where his mother was -- this is how they were treated
14 later on at that same hospital by soldiers.
15 Paragraph 81:
16 "The soldiers carried each of the bodies by
17 the arms and legs and treated each of the three bodies
18 in the same way. No stretcher was used. There was a
19 para taking each end of each body. A para took hold of
20 each body by the palms of the hands or the wrists and
21 another para took hold of each body by the ankles. The
22 bodies were all handled as if they were 'stuck Pigs'."
23 He goes on to describe almost hilarity being
24 expressed by the soldiers at that time.
25 Lapping it up, were they, according to the
1 reference to General Ford. They certainly were, but
2 Mrs Nash was in that hospital critically ill and the
3 bride, Margaret Friel's mother were also in hospital at
4 that time. Nevertheless, the wedding occurred.
5 It is important to mention it because of
6 course the wedding meant they had to dress up, and
7 William Nash, as you may have seen from the
8 photographs, was wearing the next day, on the Sunday,
9 the new suit that he had bought for that wedding; it
10 was a three-piece brown suit with a yellow floral shirt
11 and tie.
12 Additionally, he had a particularly special
13 ring, an American graduation ring that he had or one of
14 his sisters had obtained from an American boyfriend
15 which he wore that day. The family not only remember
16 the day in graphic detail, they also remember the fact
17 -- and it has happened to other families -- that when
18 finally the bodies were returned, they were returned
19 without the things that mattered most. That ring was
20 never recovered. So not only did they take life, but
21 those responsible for the care, if that is the right
22 word, of the bodies did not ensure that the property
23 was returned.
24 However, if we may in their case have the
25 plan of what happened to these two the next day. After
1 the wedding celebrations were over and no doubt they
2 had had an evening of celebrations as well, could you
3 go, please, to the other file, that is the Nash file
4 because there -- if we could have Q9 on the screen so
5 others can perhaps follow it and have on the one plan
6 the routes followed by the two.
7 The Nash family which I am dealing with
8 particularly at the moment, lived in Dunree Gardens.
9 Just to see where that is could we have Q6, please?
10 Dunree Gardens is just up by Creggan Heights near the
11 West Way at the top. It is being highlighted at the
12 moment. That is where they lived. The march obviously
13 started round the corner from where they lived, namely
14 at Bishop's Field.
15 William Nash was with a cousin called -- I am
16 going to give the initials because there are a lot of
17 Charlies in this case -- but William Nash went with a
18 cousin called CC Nash; he is one of the statements in
19 his bundle. They started out from Bishop's Field. It
20 is not clear that his father did join him at that
21 stage. John Nash was also on the march, but a little
22 behind.
23 Effectively, if we can now go back to the
24 previous plan, please, Q9, the Nashs, but separately,
25 came down William Street and ended up near the barrier
1 but separately. There are a number of photographs
2 which show both of them, but again not together, at the
3 barrier. You have seen some of these. I take one of
4 them, 653, please. 653 is also -- there he is in his
5 wedding suit, the floral tie and so forth. There are
6 other photographs in this sequence where you can see
7 him in the same dress throughout.
8 The only thing that is suggested that he may
9 have done at any stage is not fire a weapon, not
10 possess a nail bomb, not throw an acid bomb, but in
11 fact throw a stone. There is another photograph in
12 which, if we have it, 654, he is undoubtedly seen to be
13 throwing something. Beyond that it is not suggested he
14 posed a lethal threat of serious injury to anyone.
15 I am looking for the photograph of Alex Nash
16 which is photograph EP26.7.001. Again, near the
17 barrier, is Alex Nash. It is clear that both of them
18 having gone down William Street were somewhere near the
19 barrier. Could I go back to Q9, which is the plan,
20 please? Alex Nash at about that period of time, who is
21 doing absolutely nothing except watching, meets son
22 John whose wedding it had been. They have a
23 conversation and then separately both of them make
24 their way down Chamberlain Street, as is now being
25 marked, but they are not together as they go down.
1 Alex Nash goes down Chamberlain Street. I do not
2 follow the route of John; he goes off towards
3 Joseph Place. Down Chamberlain and across the
4 Rossville flats into Glenfada Park.
5 Meanwhile, and this we say straightaway is an
6 assumption, it is not clear exactly what William Nash
7 did but a reasonable assumption seems to be that he
8 goes back down William Street to Aggro Corner, as it is
9 called, and down Rossville Street towards the rubble
10 barricade where he is eventually shot. But he is seen
11 at the end of the gable wall of Glenfada Park North.
12 Could we have EP27.11, please?
13 This is not a marked one, but it is easier
14 without the labels. His face is accepted to be there.
15 There he is at the end of the gable wall.
16 While I am on this photograph, to save
17 bringing it up again, only very recently we have
18 ascertained that the gentleman in the bottom left-hand
19 corner who everybody, including ourselves, thought was
20 Danny Gillespie, the next family I am going to deal
21 with, is not Danny Gillespie. After 28 years it is
22 sometimes difficult for people, I appreciate that
23 applies across the board, to necessarily remember
24 precisely identities. It is thought, I will not put it
25 higher than this at the moment, that the person
1 depicted in that corner is in fact Hugh Duffy whose
2 tribunal reference is AD156.10. He has been approached
3 and he thinks it is him, that is, Hugh Duffy.
4 LORD SAVILLE: It may not be very important,
5 Mr Mansfield, are you able to suggest a timing of this
6 photograph in the sense of in relation to those who
7 were shot on the barricade.
8 MR MANSFIELD: Only this, that it must be, we
9 say -- I say "must be", it is likely to be before Kelly
10 is shot, and therefore obviously the other three,
11 because in fact as you saw from another photograph,
12 Kelly was brought from the barricade to the corner that
13 is on the right-hand side here. There would be, if he
14 were there on that corner, a greater crowd on the
15 corner if Kelly had already been shot. He may just
16 have been shot round the corner on or near the rubble
17 barricade --
18 MR CLARKE: I do not want to interrupt my
19 learned friend, but can I invite him and his clients to
20 consider whether, as some witnesses have said, this in
21 fact shows Kelly's body in the beginning of its passage
22 from the gable end into Glenfada Park North being
23 carried by, amongst others, James Wray and Joseph
24 Donnelly?
25 LORD SAVILLE: You mean to the left of this
1 photograph?
2 MR CLARKE: Yes, and to the left of the
3 lamppost.
4 LORD SAVILLE: The person with the hat on is
5 James Wray?
6 MR CLARKE: That is what we believe, and we
7 believe that the four or six people are in fact
8 carrying the body of Michael Kelly, I do not say that
9 with certainty, but that is what I believed up until
10 now.
11 LORD SAVILLE: As I say, Mr Mansfield, I am
12 not sure it matters very much, but there may be
13 something in what Mr Clarke has just said in view of
14 the identity of the people in that group. I do not
15 think we need spend time on it at the moment.
16 I wondered whether you had any particular view which
17 you wished to express.
18 MR MANSFIELD: Not beyond that which I have
19 already expressed. I accept it could be that that
20 group has already retrieved Mr Kelly and therefore
21 William Nash has not yet gone round the corner to the
22 rubble barricade with the others. It is difficult to
23 be precise about that.
24 However, what undoubtedly does happen is that
25 after that photograph is taken, he does go round to the
1 barricade and he, like the other three, all suffer very
2 similar injuries, the other two in that group of
3 three. In other words, single shots from the front at
4 a 45-degree angle.
5 Somewhere, again it is very difficult to put
6 it in an exact sequence because there are gaps in
7 continuity. Going back, Alexander Nash heard the
8 shooting and went towards the rubble barricade only to
9 find that his son was one of those who had been shot
10 and who was almost certainly dead by this time.
11 I would like just to show, although I think
12 it has only been shown once, but it seems to be in this
13 sequence. Could we have a video, please, video 48? It
14 is the ABC one, sequence 48 with a time at the bottom,
15 if it helps, of 6.04 on the tape?
16 (Video played)
17 It is when it shows the rubble barricade; 604
18 at the bottom.
19 (Video played)
20 The suggestion is that -- this is the rubble
21 barricade -- the man whose outline, the silhouette can
22 be seen there, is Alexander Nash. If you could just
23 play it on again, please. Could we go back again to
24 604? I do not know whether, sir, you saw it, an arm
25 goes up.
1 LORD SAVILLE: I do not think on this
2 particular recording we can do it frame by frame. I do
3 see what you mean.
4 MR MANSFIELD: There is an man who puts his
5 hand up there. He says -- we have put his statement,
6 he gave evidence, that is Alexander Nash, at the
7 Widgery Tribunal, and they are in that bundle -- he
8 says he went to roughly the middle of the barricade,
9 and certainly in Mr Clarke's summary of the rubble
10 barricade the consensus is that William Nash was in the
11 middle of the three bodies that were found on the
12 rubble barricade. This may be of some importance in
13 this context: what Alexander Nash said to the
14 Widgery Tribunal was that in fact he raised his arm and
15 that he was shot. If I can do it so that it can be
16 seen here. (Indicating) He raises his left arm and he
17 described to the Widgery Tribunal that the injury he
18 received came through the left forearm and out the
19 other side. It is difficult to tell, but it may be in
20 that picture it is a right arm going up rather than the
21 left. So whether that is the precise moment or whether
22 he lifts his other hand as well, certainly his
23 description of this, which has been consistent from the
24 beginning, namely that he did go out waving his hands,
25 keeping his fingers spread (Indicating), so no one
1 should think for a moment that he was armed.
2 If he is right in his recollection as to the
3 injury --
4 LORD SAVILLE: We are looking south, are we
5 not?
6 MR MANSFIELD: Yes.
7 LORD SAVILLE: So on this -- it is very
8 difficult because the photography can be
9 foreshortened -- it looks as though he is to the
10 eastern side of the barricade.
11 MR MANSFIELD: It is certainly obviously
12 impossible to identify there and it may be at the end
13 of the day it is someone else doing it, but that is the
14 sort of thing he says he did. He told the Widgery
15 Tribunal the reason he went there was not that he
16 thought effectively his son was alive, he thought his
17 son was dead, but that he wanted to stop the firing so
18 that the body could be retrieved. He said that very
19 carefully indeed.
20 If in fact his remembrance of holding up his
21 left arm and being shot in the way he described, he has
22 his left arm up facing the troops that are ahead of the
23 rubble barricade, it is likely -- we cannot go higher
24 than this -- that he was shot by soldiers to the north
25 of the barricade. That is the consensus of the
1 civilian evidence. It is unlikely in that context that
2 he has been shot, if that is going to be the suggestion
3 or the possible suggestion by a low velocity weapon
4 being fired from the doorway of the Rossville flats,
5 which at this point are behind him --
6 LORD SAVILLE: But he was shot in the left
7 arm, was he not?
8 MR MANSFIELD: Yes, he was shot in the left
9 arm.
10 LORD SAVILLE: Are we sure in this picture
11 that he is in fact facing north?
12 MR MANSFIELD: Certainly those around me, all
13 I can say is, yes, we think he is facing north.
14 LORD SAVILLE: The fact of the matter is he
15 says he was shot in the left arm. He was in fact shot
16 in the left arm.
17 MR MANSFIELD: Yes.
18 LORD SAVILLE: You are quite right in
19 suggesting it is not necessarily the picture of him
20 immediately before he was shot, but if he was facing
21 south then the end of block 1 or the door to block 1
22 would have been in front of him, is that not right?
23 MR MANSFIELD: Unless we have misjudged, I am
24 afraid it is only a short frame.
25 LORD SAVILLE: I am looking at the map
1 because the barricade is well along block 1. The door
2 to block 1, at least the Rossville Street entrance door
3 is down at the end of block 1 or virtually at the end.
4 So that if this photograph represents the position he
5 was in when he was shot, he could have been shot from
6 the doorway of the Rossville Street -- the
7 Rossville Street doorway of block 1 -- in the left arm.
8 MR MANSFIELD: Yes.
9 LORD SAVILLE: I am not saying for one moment
10 that is my view. It seems on the face of this material
11 to be at least a theoretical possibility, if not more.
12 MR MANSFIELD: All we can say, if it is him,
13 is that the photographer is looking at the rubble
14 barricade from the direction in which the troops are
15 coming.
16 LORD SAVILLE: That I think is undoubtedly
17 the case because a previous frame shows the trucks.
18 MR MANSFIELD: If that is right, the entrance
19 to the Rossville flats is behind Mr Nash.
20 LORD SAVILLE: If Mr Nash is facing the
21 troops, yes.
22 MR MANSFIELD: That is all I can say.
23 LORD SAVILLE: I agree, I am not sure at the
24 moment you can tell from this photograph which way
25 Mr Nash was facing.
1 MR MANSFIELD: Having had this discussion, if
2 we could play these couple of frames again. Play it at
3 normal speed so it puts it in context. Just play it
4 from there.
5 (Video played)
6 LORD SAVILLE: It does look, on the frame
7 following the one where he has his hand raised, that he
8 either falls or goes to the ground, does it not? We
9 just got a faint impression of him falling, either
10 deliberately or because he has been shot.
11 MR MANSFIELD: Yes.
12 LORD SAVILLE: I am not sure we can take
13 those particular pieces of material much further,
14 Mr Mansfield, at least not at this stage.
15 MR MANSFIELD: Sir, I am grateful for that.
16 If I could just move on then from this. In
17 summary form the soldiers to the north of the rubble
18 barricade who are candidates for firing in that
19 direction have already been outlined by Mr Clarke. In
20 terms of William Nash perhaps the most likely candidate
21 is P; more remotely, as he put it in opening, are U, C,
22 K, L, and M, although they seem to be directing their
23 attention towards the people who were crawling.
24 However, once again what P described
25 originally, rather like F, does not bear much
1 relationship to what was going on on the barricade
2 generally because there were and there is, we say, no
3 suggestion that William Nash was carrying any weapons
4 or nail bombs or anything of that kind, let alone a
5 pistol, which P said he fired four shots towards a man
6 firing a pistol. There is no suggestion of that in his
7 case, particularly as his father was there very shortly
8 afterwards. There is certainly no suggestion that
9 Alexander Nash, the father, if shot by military fire,
10 was carrying anything of that kind either.
11 May I pause in this context because the
12 soldiers that relate to this, that is P, we have in
13 fact recently been provided with statements by these
14 soldiers; you will find them in the purple file. I do
15 not go through them all, other than the one that has
16 most recently been provided by P on 25th July. We can
17 put it on the screen. It is 623.001, in particular
18 623.002. There is only one short paragraph.
19 LORD SAVILLE: Sorry, where do we find it in
20 the bundle?
21 MR MANSFIELD: It is in the bundle behind the
22 divider dealing with William Nash. I am not sure they
23 have tab numbers, but if they have, it should be
24 tab 11.
25 LORD SAVILLE: Unfortunately we do not seem
1 to have tabs --
2 MR MANSFIELD: I will just put it on the
3 screen for the moment. 623.002, paragraph 12: it is a
4 very short paragraph, but it virtually sums up the
5 point I was making earlier:
6 "I have no recollection of firing my weapon
7 or of seeing or hearing others firing weapons. I do
8 not recall hearing any other, non-military, types of
9 rifle discharge. I must have been fired at, but I do
10 not remember it at this time."
11 That bears a remarkable resemblance to F who,
12 we say, has a part to play in Bernard McGuigan's death,
13 which is at the end of the other bundle at divider
14 number 10 because there one can see how he now puts
15 it. If it can be put on the screen in case it cannot
16 be found. It is temporary bundle 42.122, in
17 particular, 122, paragraph 34 of F's statement which
18 was provided again this year. It is not dated the one
19 I have. It is in the temporary statements, 42,
20 starting at 122. If it cannot be found I can do it
21 very quickly. What F stays at paragraph 34 is again
22 exactly the same as P. In his case what he says is
23 this, it is two sentences:
24 "I remember firing my weapon but I do not
25 know when, where or why I fired it. I do not recall
1 hearing an order to cease fire at any stage."
2 So currently both these key figures are
3 saying, effectively, they have no memory. How one will
4 be able to test recollections when in fact of course
5 the truth is in both cases, as I will develop in a
6 moment very briefly, these are fabricated accounts to
7 explain why they fired their weapons and they may well
8 have forgotten the lies they have told. The truth, we
9 suggest, is yet to emerge.
10 MR TOOHEY: There is a difference; the
11 earlier statement says "I have no recollection of
12 firing my weapon". It then goes on "I must have fired
13 it". The second one refers expressly to a recollection
14 of firing.
15 MR MANSFIELD: In either event, we say, the
16 distinction is well taken, that if these men are
17 responsible for killing civilians, particularly if they
18 are innocent, it is hardly a matter they would have
19 forgotten. They may wish to forget it, but one would
20 think it would haunt their consciences as it has
21 haunted the memories of the families.
22 The other family, if I may deal with that,
23 relates to Danny Gillespie. He also attended the march
24 that day. You have in the file his statement. There
25 are far fewer who see him on the march. He lived at
1 81 Lisfannon Park, which is not very far away from
2 where he was shot. This is Sector 4, Glenfada Park
3 North. This is the corner of Glenfada Park which you
4 have seen only this morning in the context of Mr Wray.
5 There were four people killed: William McKinney, James
6 Wray and two in Abbey Park, McKinney and Donaghy. And
7 there were five wounded: Joseph Friel, Michael Quinn,
8 Patrick O'Donnell, Joseph Mahon and Danny Gillespie.
9 Because of the qualification we have put in
10 relation to that photograph we are no longer in
11 a position to say that that is Danny Gillespie, and
12 there is no photograph to show you of him, suffice it
13 to say there is absolutely no evidence in his case that
14 he was doing anything at all other than following a
15 particular course which can be shown. To save actually
16 drawing it out on the map again -- it is in the
17 appendix to his statement, AG34.11.
18 MR TOOHEY: Before you go to that,
19 Mr Mansfield, I may have misled you there. Looking at
20 the statement of Soldier P, paragraph 12, he says:
21 "I have no recollection of firing my weapon.
22 I must have been fired at"; not "I must have fired",
23 "I must have been fired at". Soldier F says he has a
24 recollection of firing.
25 MR MANSFIELD: This is a plan marked up by
1 Mr Gillespie of the route that he took and various
2 points. He too went down -- he joined the march
3 because he lives much closer, he joined it much closer
4 to William Street itself, at the top end of it, and
5 walked down William Street towards what is marked on
6 the plan as B and A. He ends up at barrier 14 to begin
7 with where he has marked it as A on this marked up
8 plan. He then goes back to the point B.
9 The significance of what happens there he has
10 set out and has been referred to before, but it is of
11 some significance when talking about how far this was a
12 lawful operation and how far it was intended to
13 intimidate or oppress because effectively when he got
14 to point B, he was close to, at point B on that corner,
15 Aggro Corner another man who was hit in the mouth by a
16 rubber bullet which had come from the barrier
17 direction, that is barrier 14.
18 He did not see this person being hit; he did
19 not see who had fired the shot, but the person was in
20 fact in some pain and he recovered -- and it was
21 photographed -- the rubber bullet which was on the
22 floor. It had been cut open so that glass could be
23 pushed into the opening, but in fact when he picked it
24 up there was not any glass in it but he demonstrates
25 the way in which it had been cut open. AG34.12,
1 please. I am afraid it is not a very clear photograph,
2 but you can see somebody is prizing open the end of the
3 rubber bullet.
4 So he has witnessed that. I am going to be
5 brief in his case, because what happens is from that
6 corner he goes down Rossville Street with another
7 person, a friend, who then goes home into Glenfada Park
8 North. He goes back out of Glenfada Park North, having
9 seen his friend home and goes to point C, which is just
10 by Kells Walk, where he sees the advent of pigs and
11 other soldiers.
12 He returns to Glenfada Park North which is
13 when it was thought that other photograph was taken,
14 but now it obviously is not him, and he witnesses
15 Mr Kelly's body being transported through the alleyway
16 between the two: Glenfada Park North and
17 Glenfada Park South. Having witnessed that and
18 speaking to youths who he thought were going to throw
19 stones at soldiers and asking them to desist, he went
20 to roughly where it is marked D in Glenfada Park North.
21 In about that position he was shot at by a
22 soldier who came in through the northeast entrance and
23 he was shot and grazed along the top of his head
24 roughly in the position that I am now indicating: the
25 bullet came across the top of his head.
1 He ended up with those, as you have seen only
2 today in the other photographs, who were killed on the
3 corner and on the pavement in front of
4 Glenfada Park South. He did not go to hospital. In
5 fact he went to another person's house for treatment
6 and eventually he went home.
7 So his is a short, as it were, cameo of what
8 happened. He was not participating in anything --
9 LORD SAVILLE: I think I picked this up
10 before when Mr Clarke showed us this statement. If we
11 go to AG34.4, paragraph 23, of his statement. I may be
12 wrong in his recollection, but I think, when he says
13 "I began to run west", he must mean east in fact.
14 MR MANSFIELD: Yes, that is right.
15 The position, therefore, is that in all these
16 cases that I have outlined as briefly as possible
17 today, all the four cases, the two who were killed and
18 the two who were shot at and injured, none of them were
19 involved in any activity that could possibly have
20 justified the use of lethal force.
21 We say that is one factor that bears upon the
22 key question: was lawful force being deployed and used,
23 and in particular used? We say the other factors that
24 I can briefly allude to in this category on question
25 one are really general points. They are points that
1 have been made, but they need to be made globally now
2 again. The only way that the soldiers can justify what
3 they did, we wait to see whether they admit firing at
4 these innocent victims is to say there were other
5 victims who were acting unlawfully and they faced what
6 I have already described as a storm of opposition.
7 These are the various things they have
8 described they had to face: high velocity fire, small
9 arms fire, machine-gun fire, petrol bombs, acid bombs,
10 nail bombs.
11 What is quite remarkable, it really only
12 needs to be said the once, quite miraculous is that not
13 a single soldier suffered a single injury as a result
14 of this storm. Interestingly, of course at the very
15 beginning, it was being said by General Ford that two
16 paratroopers had been injured. However, the truth is
17 not that two paratroopers had been injured, the truth
18 is one soldier was shot; it is the soldier who shot
19 himself in the foot.
20 If there could be any epitaph written for
21 this day it is that, because as you will recall in the
22 opening, they could not even tell the truth about
23 that. What they were going to do at the beginning, as
24 the soldier concerned was going to say effectively, it
25 is Gunner 42 in the 22nd Light Air Defence Regiment.
1 It all occurred at seven minutes past 5 in
2 a derelict building in Prince Arthur Street. He was
3 resting the muzzle on his foot, but they were going to
4 say he had accidentally shot himself as he fell down a
5 flight of stairs. If that epitomises the approach or
6 the culture of lies that you have been told about in
7 this case, that beyond all else, begins to indicate
8 what really was going on that day.
9 Much more importantly than a soldier, the
10 only soldier shooting himself in the foot, of course
11 none of the vehicles apparently were seriously damaged
12 in any way by small arms fire, high velocity fire,
13 petrol bombs, acid bombs or anything else, nor was any
14 weapon found on the streets, nor was any remnant of a
15 bomb found on the streets. What are they saying these
16 soldiers, that people came out with brooms and cleared
17 it all away before they could get there? The fact is,
18 once one begins to look at it and stand back, plainly
19 this account has been grossly exaggerated in order to
20 cover the extent of fire that has been admitted, never
21 mind the fire that has not been admitted.
22 Again one of the singular features here is
23 the question of photographs because there were ten
24 military photographers that day from seven different
25 regiments taking over a thousand photographs. In one
1 case, I give the reference because of the lateness of
2 the time, there is a soldier in the 1st Battalion of
3 the Coldstream Guards. His number is Inquiry 81. He
4 was the battalion photographer; he had two cameras that
5 day and he handed them all in to the Intelligence
6 Officer concerned.
7 He now cannot remember exactly where he was
8 other than behind a barrier for much of the time.
9 These were specialist photographers with a delegated
10 task. His task was to photograph the people on the
11 march for identification purposes, yet it is being said
12 they were all destroyed in 1972 because of a lack of
13 expertise and they could not be used. We say it is
14 nonsense. Of course they could have been used.
15 In fact we say at the time of the
16 Widgery Tribunal these photographs existed. The
17 families did not know about them, whether it was
18 heli-tele or stills. You can rest assured that if any
19 of these photographs or the heli-tele had anything
20 which exposed marchers, hooligans or anyone else with
21 weapons firing or lobbing nail bombs or photographs of
22 nail bombs on the ground near the barricade or
23 whatever, we would have seen them, or rather the
24 Widgery Tribunal would have been shown them; it would
25 have been some of the most graphic and significant
1 evidence to be used by Lord Widgery in piling up the
2 case against those who were killed.
3 We say their disappearance, if it was in
4 1972, was not that it showed that but that it showed
5 the opposite; it demonstrated the use of unlawful force
6 by the army. And it is very much in the same bracket
7 as the disappearance and the destruction of two
8 rifles. We have not heard very much about it, but
9 apparently Mr Hone, only this year, expressed deep
10 regret that two rifles had been destroyed, rather like
11 the photographs. He ordered an investigation by West
12 Mersey Police; we await the results of that
13 investigation as to why two rifles were destroyed after
14 the Inquiry had been established after giving an
15 undertaking that they would not be.
16 It almost goes along with the fact that there
17 is no contemporaneous records at all now of which
18 soldier had what weapon and so forth, the armoury
19 register has not been preserved any more than the
20 primary source documents relating to intelligence.
21 Therefore when one looks at what justification there
22 could have been for the firing, there is little or no
23 corroboration from the very sources in which you would
24 expect to find such corroboration.
25 May I turn to the second key question, which
1 is: if there was no justification for this how did that
2 come about; how was a situation to arise in which
3 soldiers were to pull triggers without justification?
4 We say it can be explained in this way: it is really
5 built on the back of everything that you have been told
6 so far.
7 We put at the end of our synopsis one single
8 summary of the position, and we still support that:
9 free Derry presented an anathema that was entirely
10 unacceptable to the political and military authorities
11 of the day. There had to be reoccupation at the
12 earliest possible opportunity and if this meant
13 innocent civilians might be killed or injured, this was
14 an unfortunate but necessary price to be payed for an
15 attempt to flush out the IRA said to be sheltering in
16 the vicinity. In other words the death of innocent
17 people was purely collateral; that is the term now
18 being used in other theatres of war. Make no
19 mistake -- reoccupation of free Derry or the no-go
20 areas was the end game.
21 Mr Heath wanted it in the sense that he
22 wanted law and order restored as he saw it, otherwise
23 direct rule would be imposed. Mr Faulkner was
24 resisting direct rule at all costs as a calamity and
25 recognised that essentially for there to be economic
1 and political power, there had to be a secure base
2 which meant he had to, one way or another, overcome the
3 problem and the symbol that free Derry presented, and
4 of course the military itself did not wish to be itself
5 down-faced by an area into which, apparently, they
6 could not go.
7 There is an interesting document in the
8 Ford -- comprised by the Ford statement we have had
9 recently. If you go back, please, to the temporary
10 documents, S14.6. If one needs no other authority for
11 the proposition that the end game was reoccupation, and
12 this was all part of that process in which innocent
13 civilians might be collaterally injured, it is on 14.6
14 because there, on 7th October at the top of 3.16 where
15 the date is given, the directive which is issued by
16 General Ford having only just recently arrived, as
17 I have already said, 3.18:
18 "The overall mission was to restore ..."; and
19 if you look at (b) there it is:
20 "The overall mission" that General Ford had
21 on his mind was:
22 "Be prepared to occupy and dominate the
23 Creggan and Bogside, when sufficient forces are
24 available."
25 This is really what they had in mind. One
1 has to remember here you have already had Operation
2 Hailstone in July in which the agenda, namely provoking
3 gunmen into target areas -- into areas where mobs would
4 be -- according to the agenda of that operation, had
5 been aborted.
6 This comes just before another operation
7 about which very little has been said. One year after
8 Hailstone, at the end of July 1972, what was predicated
9 in that paragraph was carried into effect. You had
10 Operation Motorman, which was the largest land
11 operation undertaken by the British Army since the
12 Second World War, 38 battalions with armoured
13 bulldozers and tanks went into the Creggan and the
14 Bogside.
15 We say effectively what was on everybody's
16 mind, that at the end of the day the Bogside and the
17 Creggan would be retaken by force, even if it meant
18 saturation, even if it meant there might be innocent
19 people killed. Effectively what happened in January
20 1972, before Motorman, was an operation which was
21 designed to put a marker down on the population: we,
22 the paras are here. We did not get in in July 1971.
23 However, the overall objective one day, if not today,
24 is when we come back, do you not dare put your hands up
25 behind a rubble barricade because you will be shot.
1 And that explains, we say, why there is on the next
2 page, 14.7, a reference to Operation Motorman at the
3 top of the page in paragraph 3.20, because they made
4 the connection, this was plainly what everyone knew,
5 was the unspoken in a sense but perfectly well realised
6 ambition.
7 Major General MacLellan in his statement
8 makes a similar observation. Can we have temporary
9 statement 10, page 2, paragraph 6? It again summarises
10 everything I have been trying to convey today in
11 relation to what this was all about, the deployment of
12 unlawful force:
13 "There was a general perception [this is
14 Brigadier MacLellan speaking] that Derry ('the
15 Catholic capital of the province') was at the root of
16 the problem. The saying was 'it all started in Derry,
17 and it will all end in Derry'. It was believed that
18 the only solution was to saturate the Bogside and the
19 Creggan with troops (subsequently done a year later by
20 Operation Motorman) [in fact it was the same year] thus
21 putting on end to the IRA's domination and driving them
22 into the rural areas where they could be more easily
23 dealt with. This could not be done without more troops
24 and these were not forthcoming."
25 So MacLellan's position throughout, as you
1 have seen in other documents was: I cannot do the
2 saturation, I have not got the troops. But in comes
3 Ford and sees an opportunity, contrived opportunity
4 using the Derry Young Hooligans as the way in, to at
5 least begin the process of subjugation of that area,
6 never mind the innocence.
7 That in a sense is the birth place of
8 Operation Forecast, adapted as it was by the
9 paratroopers on the ground. We say it was adapted
10 because what they effectively did was to organise what
11 has been called a scoop-up operation. This was no
12 arrest operation; this was an operation to gather up
13 whoever happened to be on the street corners near where
14 they went in on the assumption that everyone in the
15 Creggan and the Bogside is up to no good -- they are
16 legitimate targets and they will either be scooped up
17 for no reason, and Mr Harvey went through in
18 considerable detail, people were scooped up from no. 33
19 just because they were in a house, that was the reason
20 they felt they could actually put on the arrest form,
21 and sometimes they did not even bother to put a reason
22 down at all.
23 This was totally impractical as an arrest
24 operation as Brigadier MacLellan himself recognised on
25 a phone call when General Ford suggested he might
1 gather up 400. They all knew that could not possibly
2 be the case because it was not. The people who were
3 gathered up were gathered up for no more reason. We
4 will await with interest what it is said those people
5 were supposed to have done in truth, no more we say
6 than those who were shot, and the Liddy tape which you
7 listened to only last week, is an example of what
8 happened to one of those trying to help what was then
9 arrested and maltreated in a serious way.
10 May I therefore end today and this resume of
11 the points we wish to make by returning to what the
12 Prime Minister said at the end of the debate in the
13 House of Commons, and I would put it at the end of our
14 submissions on behalf of these families:
15 "I am setting up the Inquiry because the
16 relatives of those who died that day have the right to
17 expect us, their Government, the British Government to
18 try and establish the truth of the events of that day.
19 I am interested in their interests, their concerns and
20 their sense of grievance, not in the sense of grievance
21 of people who have engaged in terrorist acts."
22 We say none of the people we represent were
23 terrorists and we are interested in their concerns and
24 their grievances, and may at long last, perhaps by
25 Monday, a sense of reality be brought about by those
1 who perpetrated these terrible events.
2 LORD SAVILLE: Thank you, Mr Mansfield. We
3 have now reached 3 o'clock, so we will adjourned until
4 Monday morning at 9.30
5 (3.00 pm)
6 (Proceedings adjourned until Monday, 27th
7 November 2000 at 9.30 am)
8 Opening Submissions by LORD GIFFORD (continued)...... 1
9 Opening Submissions by MR MORGAN.................... 16
10 Opening Submissions by MR MANSFIELD................. 78