Page 1


1 Thursday, 23rd November 2000

2 (9.34 am)

3 Opening Submissions by LORD GIFFORD (continued)

4 LORD GIFFORD: Sir, before resuming the

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

6 is a matter which follows from the application that we

7 had on Tuesday on behalf of Private 027. My

8 instructing solicitor Mr McCourtney has spoken directly

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

10 that he was responsible for a broadcast after the

11 hearing on 27th April 1999 on the Irish television

12 channel TV3, in a programme called "Twenty Twenty

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

14 April and showed to the viewers the page of the

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

16 Private 027 was printed and his name was verbally

17 mentioned.

18 We are seeking a copy of that broadcast and

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

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

21 obtain, which is a written article also giving the

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

23 extent there was some broadcast following that hearing.

24 The second preliminary matter is to note with

25 thanks the information which has been provided to us


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

2 recall that yesterday I drew attention to the memoranda

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

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

5 a letter written to the Inquiry by the Ministry of

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

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

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

9 in paragraph 4:

10 "DS10 was originally responsible for internal

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

12 problem emerged, it dealt exclusively with

13 Northern Ireland. To give you some indication of the

14 scale and importance of the army's commitment to

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

16 Assistant Under General Secretary Staff "AUSGS's other

17 two decisions DS6 and DS7 covered all other operations

18 worldwide, together with the size and shape of the

19 army, its plans and budget."

20 That is of great assistance and it goes to

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

22 important civil servant at the highest echelons of the

23 Ministry of Defence.

24 Sir, I had finished at the end of yesterday

25 drawing attention to the view that witnesses,


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1 particularly Mr Porter and young John Carr would have

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

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

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

5 photograph which shows the bodies of Jim Wray and

6 William McKinney being taken through the alleyway. It

7 is clearly taken from some point between 8 Abbey Park

8 and the alleyway and shows a rather similar aspect to

9 that that we saw in the virtual reality.

10 We cannot, unfortunately, see the precise

11 location of the pavement as it is obscured by the

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

13 looked on the day.

14 Going back, sir, to the evidence of

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

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

17 Wray originally fell because of a stumble and that both

18 the shots which struck his body had occurred from close

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

20 two puffs of smoke.

21 That theory might seem to have some support

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

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

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

25 Dr Carson at the post mortem by their very similar


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1 appearance.

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

3 that there is no necessity scientifically for the two

4 shots to have been fired in quick succession or that

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

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

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

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

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

10 jumped on the floor.

11 In spite of that, we believe it to be

12 overwhelmingly likely that Jim Wray was first hit in

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

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

15 he stumbled. If he had merely stumbled the likelihood

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

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

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

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

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

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

22 consistent with a man who had been struck and possibly

23 paralysed by a shot at the lower back.

24 When he was shot again by the soldier who

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


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

2 and the other narrowly missing his body. Malachy Coyle

3 described how the pavement beside Jim exploded with

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

5 a bullet against the pavement.

6 Whether it is one shot or two shots, his

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

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

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

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

11 rescued, particularly by John Porter, who went forward

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

13 coming from the soldiers across the square, and his

14 life could have been saved if he had not been

15 ruthlessly finished off by a soldier firing from close

16 range.

17 Sir, it is significant to note that Jim

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

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

20 carefully over all these years. The jacket has been

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

22 it very useful to compare the actual configuration of

23 the holes on the jacket with the various diagrams which

24 were made in 1972.

25 Their view is that the jacket does not --


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

2 any theory of a third shot hitting the jacket but

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

4 have been caused when the jacket was folded or rucked

5 up as Jim Wray was running.

6 Sir, these are matters of expert detail which

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

8 Clearly the experts, we will need to probe very

9 carefully exactly what they are saying and come to

10 a definite submission at the close of this Inquiry.

11 Whether the final shot on the ground was

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

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

14 submissions in his review of the sectors that it really

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

16 have continued into the alleyway to reach Abbey Park

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

18 Gerald Donaghy and thereafter fire at Gerard McKinney.

19 Joe Mahon also says that the killer of Jim

20 Wray went through the alley and returned after some

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

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

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

24 blond hair when the soldier took his helmet off after

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


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

2 Since he is deceased, we need to know from

3 some other means. We have suggested to the Tribunal

4 that they seek contemporary photographs of key soldiers

5 so that some reference could be made to their

6 contemporary features, which of course will have

7 changed enormously in the 27 years.

8 Joseph Mahon also claimed to identify the

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

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

11 soldiers have recently been asked to look at the video

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

13 claimed to recognise and we can then analyse whether he

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

15 Joe Mahon also spoke of a soldier named Dave

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

17 soldiers close to the scene had a Christian name

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

19 because we have still this tortured problem of matching

20 Christian names to soldiers in public, but this is

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

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

23 the identification of Dave is finally made public.

24 Finally, in looking at the possible

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


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

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

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

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

5 down:

6 "I knew the blokes were getting in while the

7 going was good as people with gleeful expressions were

8 running up from the rear and elbowing their way through

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

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

11 their solders. The firing slacked and died as the

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

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

14 Glenfada Park, a small triangular car park within the

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

16 there running in an effort to get away.

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

18 yards. The bullet passed through one man and into

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

20 Can we turn over:

21 "He then moved forward and fired again,

22 killing the wounded man. They lay sprawled together

23 half on the pavement and half in the gutter.

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

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


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1 man was killed by either G -- "

2 LORD SAVILLE: What was the letter in the

3 blank there?

4 LORD GIFFORD: The first blank was E in line

5 three.

6 LORD SAVILLE: E for echo?

7 LORD GIFFORD: And the two blanks on line

8 five are G or F:

9 "I must point out that this whole incident in

10 Glenfada Park occurred in fleeting seconds and I can no

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

12 I do remember that when we first appeared, darkened

13 faces, sweat and aggression, brandishing rifles, the

14 crowd stopped immediately in their tracks, turned to

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

16 were standing when they were shot. Men and women

17 whimpering and crying and trembling with fear with

18 their hands on their heads. We frogmarched them at

19 a jog-trot to the rear."

20 That then deals with the taking of prisoners.

21 Sir, was that reference to the shot fired by

22 H killing one and wounding another and then H moving

23 forward killing the wounded man, was that a reference

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

25 Mahon and Willie McKinney, who did lie sprawled


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

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

3 killed, he was narrowly saved from death by the

4 intervention of Evelyn Lafferty.

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

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

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

8 before we make final submissions as to who was the

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

10 In concluding this opening we call for the

11 Tribunal to exercise the utmost vigilance and to

12 maintain its dogged determination to uncover the truth,

13 even though some may wish to obstruct you in your

14 search.

15 Mr Harvey in his opening reminded you of some

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

17 time of the Widgery Tribunal and he was asked by

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

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

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

21 which Widgery inquired into.

22 In my submission, sir, the material that

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

24 relevant not merely as a critique or indictment of the

25 processes of the Widgery Tribunal, but for what it


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1 reveals of the motives and tactics of those within the

2 Ministry of Defence and elsewhere who wanted to ensure

3 that the truth was distorted and concealed, because

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

5 further question: how much distortion and concealment

6 is still going on; what would the secret memoranda

7 dealing with the preparations within the Ministry of

8 Defence for the Saville Inquiry reveal in 30 years

9 time?

10 This Tribunal is committed to a new approach

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

12 Ministry of Defence is the same Ministry of Defence and

13 the Intelligence Services, albeit perhaps with

14 different names and different personnel, are the same

15 Intelligent Services institutionally. Indeed since

16 1972 their techniques of deception and secrecy in the

17 context of the Northern Ireland conflict have become

18 vastly more sophisticated. They remain as institutions

19 as committed to winning the propaganda war in 2000 as

20 they were in 1972.

21 One can surmise that within their ranks there

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

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

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

25 truth may have to deceive the Inquiry itself.


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1 We submit this is not an unreal or

2 speculative suggestion and in an Inquiry from which so

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

4 footage is missing, army photographs are missing, legal

5 advice given in 1972 is missing, intelligence material

6 coming from primary sources in 1972 is missing.

7 The Wray family and its legal team make no

8 apology for having delivered to the Inquiry over the

9 months a barrage of questions which are designed to

10 assist the Inquiry to draw out material which might

11 otherwise be withheld.

12 For instance, on 26th June 2000 we submitted

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

14 for the Ministry of Defence. We drew attention to

15 documents which must have existed concerning

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

17 other shadowy figure, who were involved in intelligence

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

19 revisited on 5th December when the public interest

20 immunity application is heard.

21 On 12th June 2000 we wrote the last of

22 a series of letters asking questions about the army and

23 police photographs and the heli-tele film. We

24 suggested questions which might usefully be posed to

25 the various people who had photographs in their


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1 possession at different times. We have yet to receive

2 any response as to whether our suggestions and

3 initiatives were acted on and if so, with what

4 results.

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

6 content merely with receiving negative answers from the

7 Ministry of Defence or other Government sources.

8 The Tribunal has powers to compel any person

9 whom it reasonably believes to have relevant

10 information to appear before it and be questioned. We

11 ask the Tribunal to insist on interlocutory hearings

12 designed to give itself and the interested parties the

13 right to question relevant witnesses who had documents

14 in their possession as to what documents did exist and

15 what has happened to them.

16 Sir, members of the Tribunal, it has already

17 become evident that this Tribunal itself is unpopular

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

19 and for truth. Your rulings on anonymity met with

20 a vituperative campaign in some sections of the press

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

22 non-cooperation with the Inquiry by soldiers led by

23 Colonel Wilford.

24 LORD SAVILLE: Lord Gifford, can I come back

25 to your suggestion of an interlocutory hearing. At the


Page 14


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

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

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

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

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

6 been forwarded to the appropriate places in an attempt

7 to find answers.

8 I think what would help us, if you have

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

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

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

12 place the questions that you regard as still being

13 outstanding.

14 LORD GIFFORD: As to the drawing together of

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

16 the issue of interlocutory hearings, what I am seeking

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

18 certain witnesses come to give evidence in their

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

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

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

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

23 a source of documents in an interlocutory hearing.

24 If various people have said in correspondence

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


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

2 early interlocutory hearing to question them as to what

3 they did with those photographs, rather than to wait

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

5 in the letter that we will write.

6 LORD SAVILLE: I follow that, which is why

7 without ruling in your favour or otherwise, I have

8 picked up this question of an interlocutory hearing.

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

10 in a position better to consider that if you could

11 adopt the suggestion I have made to you.

12 LORD GIFFORD: Certainly, sir.

13 Sir, those rulings which met with such an

14 attack were overturned by the Court of Appeal in

15 England in litigation which the Ministry of Defence

16 openly supported. More recently you have been fed with

17 highly controversial material from Observer B and from

18 Infliction and you are now being asked to deprive

19 yourself of an open investigation of this material by

20 acceding to a public interest immunity application.

21 It is, we submit, evident that the Ministry

22 of Defence and the Security Service, bodies who may

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

24 will do their utmost to thwart it from achieving its

25 goal of reaching the truth by a public process.


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

2 courage and continued resolve in the face of all

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

4 both overt and covert, to deflect you from your

5 mission.

6 Those are my submissions on behalf of the

7 Wray family.

8 LORD SAVILLE: Thank you very much.

9 Opening Submissions by MR MORGAN

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

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

12 Bloody Sunday, Michael Bradley and Michael Bridge.

13 I want to start by acknowledging my

14 indebtedness and that of my clients to others who have

15 presented openings on behalf of the families and those

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

17 commend to you the careful, rigorous and comprehensive

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

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

20 upon.

21 I also commend in particular the careful

22 analysis of the claim of responsibility which

23 Lord Gifford has carefully analysed, in particular

24 yesterday afternoon. This is an analysis with which we

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


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1 recently delivered to you, we wish to draw express

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

3 is the conversation between Lord Widgery and Mr Heath,

4 which is discussed at paragraphs 30 to 32, the

5 reference being KH4.8.

6 I do not intend to take you through the

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

8 opened to you on a couple of occasions. Essentially

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

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

11 including Lord Hailsham.

12 At paragraph 32, we see that Lord Widgery was

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

14 that can be interpreted or should at least be

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

16 that he should be careful in relation to findings

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

18 explanation in relation to that comment must also be

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

20 were concerned.

21 If it was the case that Lord Widgery's

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

23 there was no particular reason to suppose that the

24 politicians would be at risk in terms of blame or

25 causation in relation to the events.


Page 18


1 If, however, it were the case that

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

3 follow that it was highly likely that that criticism

4 would swiftly focus on the political control in

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

6 in circumstances where it has accepted, and indeed was

7 acknowledged by the politicians that they have been

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

9 Therefore it is our respectful submission

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

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

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

13 explanations which are offered.

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

15 particular issues which my clients are keen to draw to

16 the Tribunal's attention as being matters for

17 investigation and which at present we do not believe

18 have been explored in quite the same way before the

19 Inquiry.

20 The first of those issues concerns the

21 appointment of Major General Ford to his position as

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

23 temporary statement 14.1 where this matter is discussed

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

25 describes how he arrived in Northern Ireland as


Page 19


1 Commander Land Forces Northern Ireland on 29th July

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

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

4 likely on promotion to take command of an armoured

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

6 that he would become Commander Land Forces in

7 Northern Ireland. That post had only existed for

8 a year or so prior to his appointment. His

9 predecessor, Major General Farrar-Hockley, was posted

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

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

12 briefings.

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

14 inquiring inter alia about the minutes of the meetings

15 which considered the appointment of General Ford to the

16 position of Commander of Land Forces and we also

17 expressly inquired whether or not any application for

18 such a post had been made, either formally or

19 informally, by Major General Ford.

20 It is our submission that 1.2 can be analysed

21 so as to suggest that there was some reason which

22 operated somewhere or other causing a change of

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

24 Germany and the post in Northern Ireland.

25 There is no explanation that we can see


Page 20


1 within the documents as to why there should have been

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

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

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

5 a change of personnel in relation to such a senior

6 position within the army would have occurred at such

7 a sensitive time.

8 One has to remember that the taking up of his

9 position by General Ford on 29th July was essentially

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

11 operation its plan for internment. One would have

12 anticipated that there would have been a very

13 considerable demand upon army resources which would

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

15 have thought that it would have been important that if

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

17 the timing of it might have been considered carefully.

18 The reason we say it is necessary to pursue

19 this is to establish whether or not General Ford was

20 appointed to achieve a purpose and whether that purpose

21 was connected with any change in army policy towards

22 civil disturbance and in particular whether it

23 represented any kind of indication of a more aggressive

24 response in relation to that policy.

25 Someone in the Ministry of Defence was


Page 21


1 responsible for making these decisions and they must

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

3 that until one establishes the position in relation to

4 the material available about the reasons for the

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

6 it is not possible to have an understanding of the

7 answer to that question.

8 The second matter which we draw to the

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

10 Major General Ford as an observer on 30th January

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

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

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

14 have not yet been explored.

15 The question of a status as an observer is

16 addressed by General Ford in temporary statement

17 14.27. It is particularly dealt with by him at

18 paragraphs 12.1 to 12.5. These are his comments in

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

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

21 "The suggestion that I might have pressurised

22 Brigadier MacLellan has come about because of an

23 interview I gave Desmond Hamill 12 years after the

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

25 the Middle".


Page 22


1 "12.2. Knowing what I do now about my

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

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

4 I implied to him, in 1984.

5 "12.3. I can remember little about my

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

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

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

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

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

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

12 whether I would be prepared to contribute on an

13 unattributable basis and I agreed to do so."

14 We draw particular attention to 12.3 because

15 it demonstrates that the purpose of this interview was

16 to support the MoD; it was clearly something that

17 General Ford was advised was being carried out with the

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

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

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

21 must also have anticipated that whatever comments he

22 made, that they would in due course have been

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

24 they would in fact had been amended, excluded or

25 otherwise edited.


Page 23


1 But certainly there is no basis at all within

2 12.3 for thinking that the comments and the disclosures

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

4 other than comments which would have been entirely

5 truthful and accurate as to any events which he was

6 going to describe.

7 He goes on:

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

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

10 pressure. I did not speak to Brigadier MacLellan or

11 any member of his staff after I left his headquarters

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

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

14 the two radio messages which are recorded in the

15 transcript of Mr Porter's tape ...

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

17 the corner of William Street/Chamberlain Street at 1640

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

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

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

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

22 down:

23 "On the secure net to MacLellan, I sent

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

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


Page 24


1 move though Pat MacLellan could probably 'see' more

2 through his helicopter above."

3 That of course is important, because Major

4 General Ford has contended in his statement that he did

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

6 important in that it represents a misremembering by way

7 of addition rather than a misremembering by way of

8 a failure of recollection. In my respectful

9 submission, where there is a misremembering by way of

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

11 whether or not its accuracy can be accepted.

12 He continues:

13 "It is difficult for a brigadier to have

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

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

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

17 been proved in all history. That was the brigade

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

19 commander. What was happening in Londonderry that day

20 was crucial to the future of that part of

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

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

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

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

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


Page 25


1 That passage, in my respectful submission, is

2 difficult to accept as an explanation of an operation

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

4 affect arrests.

5 In our submission it raises the question of

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

7 devised here which was going to be put into operation

8 by way of contact with some civilian groups and which

9 was being planned from a reasonably early stage. The

10 importance of success so far as General Ford has

11 described it is emphasised. He was determined to have

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

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

14 but in Belfast as well.

15 The importance that he attached to what he

16 might achieve by way of this operation he describes by

17 saying what was happening in Londonderry that day was

18 crucial to the future of that part of

19 Northern Ireland. It is difficult to imagine anything

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

21 compares that with the orders that were actually raised

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

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

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

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


Page 26


1 as indeed was raised by Lord Gifford in his

2 submissions.

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

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

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

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

7 in relation to the implementation of internment. I do

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

9 temporary statement 14.2.

10 If one continues with the note:

11 "But as one over one is always

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

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

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

15 and I would have to look it up.

16 "Would it be fair to say that your message

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

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

19 answer."

20 The other question of course that arises from

21 an examination of that conversation is whether it

22 indicates that General Ford regarded his role in

23 relation to the events as simply an observer with

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

25 submission that, given the importance he attached to


Page 27


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

2 was the one who suggested to Brigadier MacLellan that

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

4 he viewed his role as considerably more active than

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

6 achieve what he regarded as a crucial success in

7 relation to the events of the day.

8 If we then look at what Brigadier MacLellan

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

10 this is to be examined with a view to determining

11 whether it supports the proposition that there was

12 a misremembering by General Ford, or whether it

13 supports the proposition that one should look carefully

14 at the accuracy of that proposition.

15 The interview with Brigadier MacLellan can be

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

17 the page one sees that Brigadier MacLellan says:

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

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

20 January, the CLF, accompanied by an Assistant

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

22 "And Colonel Maurice Tugwell, of the

23 Parachute Regiment, arrived with their own secure

24 radio."

25 So here is Brigadier MacLellan confirming his


Page 28


1 recollection that there was a secure radio which was

2 available to General Ford, a matter which he himself

3 had expressly stated to Mr Hamill and which of course

4 has subsequently been denied.

5 Then over the page again at 006, the second

6 paragraph:

7 "Did Ford communicate with me? Not while he

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

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

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

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

12 the brigade major."

13 If it is the case that General Ford was in

14 fact an observer in relation to these events and that

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

16 quite remarkable that General Ford in his interview

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

18 the very least, making suggestions about getting the

19 troops who were responsible for the killings and

20 woundings in and that the person whom he was ordering

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

22 is in the midst of a conversation with someone with

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

24 We respectfully say, therefore, that there is

25 a considerable question to be examined in relation to


Page 29


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

2 of General Ford as an observer.

3 We further contend that there is additional

4 support for that proposition to be gained when one

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

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

7 broadly contemporaneously, as I understand it, of

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

9 we look at the first substantial paragraph beginning

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

11 beginning:

12 "It was at this stage that I heard shots

13 fired from the direction of Rossville Flats.

14 I returned at once to the observation post on Embassy

15 Ballroom, but on my way met Lieutenant Colonel

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

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

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

19 The extraordinary thing about that is that,

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

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

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

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

24 would have taken such an interest in the return of

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


Page 30


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

2 that company?

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

4 some analysis which leads to an explanation for that,

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

6 But it is clearly, and clearly was in

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

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

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

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

11 describes:

12 "2. Rossville Street: Company moving

13 tactically into positions overlooking Glenfada Flats

14 and Rossville Flats. At the same time other troops

15 were rounding suspects up in Rossville Street and

16 moving them to the wasteground at the junction Little

17 James' Street/William Street where they were searched

18 and held."

19 The important passage is:

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

21 Brigade and asked if D Company 1 Para had been

22 transferred to under command 1 Para. This was

23 confirmed.

24 "Moved back down to Waterloo Place. I then

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


Page 31


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

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

3 What is absolutely clear is that, for

4 whatever reason, General Ford was taking a very active

5 --

6 LORD SAVILLE: Can you identify

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

8 barrier 13 is.

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

10 that General Ford presents himself merely as an

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

12 extraordinary that he should have taken such a keen

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

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

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

16 imagined would have been very much an operational

17 military decision to be made by the person on the

18 ground who understood what was happening and the

19 requirements of what was needed.

20 For instance, one would have anticipated that

21 if Colonel Wilford required the assistance of 1 Para or

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

23 who would have made the request to the headquarters for

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

25 command of Light Air Defence. It is simply


Page 32


1 extraordinary to marry what is said here and indeed

2 what is said in conversation with Mr Hamill with the

3 proposition that General Ford, who believed that what

4 was happening was crucial and important, not just on

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

6 Northern Ireland, to believe that he was simply there

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

8 We are driven to the conclusion that there

9 must be very considerable doubt indeed as to whether in

10 relation to that aspect of his evidence, that

11 General Ford's account is correct.

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

13 third issue, is the question of the role of

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

15 looking at what General Ford says in relation to his

16 relationship with Brigadier Kitson. That can be found

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

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

19 5.7. This is a passage which has previously been

20 opened to the Tribunal. I will quickly read through

21 it:

22 "I was certainly not made aware of any formal

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

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

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


Page 33


1 Brigade and I have no recollection of Brigadier

2 MacLellan mentioning such issues to me. 1 Para had

3 been particularly successful in Belfast. Like any

4 other successful unit or individual, they automatically

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

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

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

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

9 propaganda would reduce operational capabilities.

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

11 propaganda at this time. I had confidence in

12 Brigadier Kitson and 1 Para."

13 So there is an apparent relationship in terms

14 of approval between Kitson and 1 Para and

15 identification, we would respectfully say, in the

16 context of this statement:

17 "I knew Brigadier Kitson very well" and that

18 is something to which I will return:

19 "I had seen 1 Para operating on earlier

20 occasions."

21 One imagines that is in relation to his spell

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

23 1971:

24 "I knew Kitson's view of that particular

25 Battalion", which demonstrates that he was having


Page 34


1 operational discussions with Brigadier Kitson about

2 that Battalion:

3 "He thought they were very good and he

4 depended on them."

5 In my respectful submission, that

6 demonstrates that between General Ford and

7 Brigadier Kitson that 1 Para were recognised as having

8 a special and particular role to play in relation to

9 dealing with crowd disturbance or civil disturbance.

10 If we go to look at the opportunities for

11 discussion between General Ford and Brigadier Kitson

12 and the extent to which those likely discussions were

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

14 helpful to start at temporary statement 14.54. I am

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

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

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

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

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

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

21 or 8th. At paragraph 8:

22 "We have also to face the possibility of

23 a NICRA march from the Creggan to the Guildhall Square

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

25 be followed by a rally which will be addressed by


Page 35


1 Members of Parliament and leading members of NICRA.

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

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

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

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

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

7 practical and taking into account the likelihood of

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

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

10 fact that the minimum damage must be done to the

11 shopping centre.

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

13 hours on Monday and will also forecast the force levels

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

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

16 as Province Reserve) and 1 Para."

17 He then talks about asking D Intelligence to

18 do various things.

19 The importance of that is that he must have

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

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

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

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

24 Brigadier Kitson's statement the normal procedure one

25 would have anticipated was that he would have had


Page 36


1 a conversation with Brigadier Kitson, in the course of

2 which he would have established whether or not there

3 was any difficulty about Brigadier Kitson releasing his

4 Belfast reserve for an operation that was going to take

5 place some 75 miles away.

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

7 that procedure is identified by Brigadier Kitson at

8 paragraph 9, when he says:

9 "I do not remember when the decision was made

10 to reinforce 8th Brigade for the illegal march in

11 Londonderry that had been arranged to take place at the

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

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

14 must have decided to send the province reserve

15 battalion and 39 Brigade's reserve battalion."

16 So he actually places it higher, he says that

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

18 Brigade reserve, he anticipated would have been

19 a decision made by the CLF and the GOC:

20 "In making this decision they would have

21 considered the risk involved in removing 1 Para from

22 Belfast for the short period concerned. It is probably

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

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

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


Page 37


1 apart from bombing and isolated attacks on soldiers."

2 It is clear and it is recorded in temporary

3 statement 14.11 by General Ford that there was some

4 contact with Brigadier Kitson. If we look in

5 particular at paragraphs 4.10 and 4.11, we see that

6 General Ford says:

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

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

9 gradually moving northward and they said that not only

10 would Great James Street be destroyed by bombing, arson

11 and looting but also Clarendon Street, unless there was

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

13 the major shopping centre of Londonderry would have

14 been likely to have become derelict within a few

15 months.

16 "Previous experience of the DYH, the opinions

17 of those based in Londonderry and indeed commonsense

18 all lead to the conclusion that whatever the intentions

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

20 a cover and excuse for prolonged and violent rioting.

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

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

23 away for up to four days."

24 The point that I seek to draw from this is

25 that although there is evidence of a conversation which


Page 38


1 occurred with Brigadier Kitson some time prior to the

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

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

4 a conversation between General Ford and

5 Brigadier Kitson around the 7th January after

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

7 traders.

8 One has to ask oneself: given the terms of

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

10 visit and given the view which he had formed as

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

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

13 that he intended to utilise the Brigade reserve of

14 Brigadier Kitson, and given that he knew that

15 Brigadier Kitson relied and depended upon that reserve,

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

17 to be accepted that he resolved in these two

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

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

20 whom Brigadier Kitson placed such trust and confidence

21 in relation to a particular operation without any

22 discussion at all of what his thoughts were in relation

23 to what was required.

24 But when one puts to that the clear esteem

25 with which Brigadier Kitson was held by his peers in


Page 39


1 relation to his understanding of the tactics required

2 in relation to civil disturbance, counter-insurgency,

3 dealing with terrorists, et cetera. It is my

4 submission it simply beggars belief that there was no

5 discussion which reflected upon these matters.

6 In order to demonstrate that esteem, one only

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

8 Intensity Operations", which was prepared by General

9 Sir Michael Carver. That book was published with

10 a dated foreword by Brigadier Kitson in 1970. The

11 copyright is 1971. In the foreword General Carver

12 says:

13 "Nobody could be better qualified than

14 Brigadier Frank Kitson to write on this subject. He

15 has a wide experience both of operations and

16 intelligence against terrorists and in the different

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

18 approached the problems of this unfamiliar type of

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

20 of determination, unprejudiced objectiveness, devotion

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

22 first-hand knowledge of his exceptional skill in this

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

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

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


Page 40


1 game based on intense mental activity allied to a

2 determination to find things out and an ability to

3 regard everything on its merits, without regard to

4 customs, doctrine or drill" et cetera.

5 "This book is written for the soldier of

6 today to help him prepare for the operations of

7 tomorrow. It will be the greatest possible help to

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

9 with training the army."

10 If it is the case, that the relationship

11 between --

12 LORD SAVILLE: Can you give us the date when

13 that book was published?

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

15 I think --

16 LORD SAVILLE: You did tell me that, but

17 I missed it. I beg your pardon.

18 MR MORGAN: The point we respectfully make is

19 that it is clear General Ford establishes the nature of

20 the relationship between himself and Brigadier Kitson.

21 He clearly would have been entirely aware of his

22 particular skills in relation to questions of

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

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

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


Page 41


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

2 a change of policy.

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

4 one would have imagined it would have been a change

5 that would have impacted not just within the area of

6 8th Brigade, but potentially also would have impacted

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

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

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

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

11 the documentation is there any reference whatsoever to

12 its existence; there is no communication either from

13 the army or from the politicians by way of documentary

14 evidence which establishes what the response to that

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

16 discussion among those who would have been the

17 recipients and ought to have been the persons

18 responsible for giving such a response, no

19 acknowledgment even that they did give any such

20 response, that they can remember giving it.

21 So we respectfully say that there is again

22 considerable doubt about the proposition that the views

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

24 which coincided almost precisely with the time of his

25 discussion with Brigadier Kitson in terms of the


Page 42


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

2 there was no mention of the differing policy thoughts

3 that he had.

4 It is, in our respectful submission, also

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

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

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

8 this; he does not discuss the nature of his

9 relationship with General Ford; he does not discuss

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

11 he does not discuss the role they played or the

12 particular attributes that they have, all matters, one

13 might have thought, which would have been important and

14 relevant considerations in relation to the issues which

15 the Inquiry has to deal with.

16 The next point we want to come to, the

17 fourth, is the question of undercover soldiers. Within

18 the papers there are, in our respectful submission,

19 documents which tend to support the proposition that

20 there were armed undercover soldiers within the crowd

21 on the afternoon in question. The first document

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

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

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

25 in particular to look at paragraphs 41 to 43:


Page 43


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

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

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

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

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

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

7 that I pushed.

8 "42. I saw that prisoner being processed

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

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

11 I should say that it must therefore be

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

13 not sure whether that has been done and whether

14 a statement has been obtained from the major to

15 establish what his recollection of the event is:

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

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

18 the civilians and who had been arrested with them.

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

20 thumb there and me physically pushing him back in to

21 the pen would have given him more credibility.

22 "43. Like the other prisoners, the SAS

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

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

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


Page 44


1 five hours to process them."

2 That is an indication of the fact that there

3 were SAS soldiers on the ground. There is further

4 support for that proposition to be obtained if we look

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

6 interviews with various soldiers for the preparation of

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

8 1992. Soldier Y was a soldier who identified himself

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

10 I start from the middle of the page:

11 "Question: Let me just ask you something

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

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

14 got obviously a very dangerous and volatile situation,

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

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

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

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

19 plain-clothed SAS people in the crowd?

20 Answer: Four.

21 Question: Four in the crowd. Are all the

22 other soldiers aware of who is who?

23 Answer: No.

24 Question: So the likelihood is if anything

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


Page 45


1 Answer: One of them got arrested.

2 Question: Why had he got arrested?

3 Answer: They beat shit out of him. They

4 really beat shit out of him.

5 Question: And he has to take it because he

6 cannot blow his cover."

7 Is that a reference to other matters outside

8 Northern Ireland? Then over the page at 110:

9 "Question: Yes, I understand that. These

10 four guys, were they armed?

11 Answer: Yes. Always armed.

12 Question: If he is armed and they get beaten

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

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

15 There again is a soldier who was confirming

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

17 stating that there were three other members of the SAS

18 to his knowledge within the crowd and who confirms that

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

20 The importance that we respectfully say

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

22 the fact that if there are reports of gunmen sighted

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

24 satisfied that such people were in fact there and were

25 armed, it is necessary to consider and exclude the


Page 46


1 possibility that the person in question is in fact an

2 undercover soldier.

3 Clearly since there is some importance that

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

5 submission clear that it is imperative that the major

6 of INQ 18 is identified and that a statement is

7 obtained from him in relation to these issues.

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

9 not in any sense related to the Widgery letters.

10 The last of the points of consideration that

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

12 whether it was only soldiers from Mortar Platoon who

13 were present at Sector 2 at the commencement of the

14 operation.

15 There is at the very least one statement

16 which appears to cast some doubt upon that

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

18 paragraph 2, one sees that:

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

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

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

22 So we know the Platoon to which he belongs,

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

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

25 "I have seen a map which I understand is


Page 47


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

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

3 shown photographs used for the purpose of this Inquiry,

4 but I cannot remember where I was positioned in

5 relation to those photographs. I just remember seeing

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

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

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

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

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

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

12 against the shorter side of the block trying to take

13 cover. I cannot remember what direction I was

14 facing."

15 We respectfully say first of all that the

16 description of the location in which he was taking

17 cover is consistent with a position which is at the

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

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

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

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

22 being present near the corner of the L.

23 The position where there was only one Pig,

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

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


Page 48


1 but fairly quickly thereafter a number of other army

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

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

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

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

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

7 into an area which is immediately adjacent to Sector 2

8 at the time that the shooting was taking place.

9 Of course that, in our respectful submission,

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

11 respectfully need to have investigated whether or not

12 there was shooting within Sector 2 other than that

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

14 we would be reluctant to accept, given the proposition

15 that any such shooting that has occurred in Sector 2

16 was necessarily solely the responsibility of Mortar

17 Platoon.

18 I should say if one looks at the statement as

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

20 necessarily the most reliable of witnesses as to

21 exactly where he was and his appreciation of the

22 geography but we raise this solely as an indicator of

23 something that will need to be investigated and

24 something that will need to be addressed.

25 Those are the five matters which I on behalf


Page 49


1 of my clients was anxious to raise as matters for

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

3 which I can deal with rather more briefly, which

4 I describe as matters relating to the public confidence

5 of the clients and the work of the Tribunal.

6 I make these comments not in any sense by way

7 of criticism or indication of dissent or unhappiness

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

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

10 public confidence which in relation to some matters is

11 at risk.

12 The first of the matters that I wish to draw

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

14 continued provision of anonymity to all soldiers.

15 Having reviewed the Tribunal's ruling it is certainly

16 our understanding that the anonymity ruling does not

17 apply in relation to those soldiers who have expressly

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

19 appears to follow from the first page of the ruling

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

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

22 ruling operates in the same way in relation to the

23 non-shooters.

24 There are a substantial number of soldiers

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


Page 50


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

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

3 draw attention to four of them.

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

5 paragraph 2:

6 "In addition, I took part in a television

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

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

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

10 a special reasons application for anonymity."

11 I should say first of all that it appears

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

13 Tribunal's original ruling was in place and the

14 reference to "a special reasons application for

15 anonymity" would tend to be --

16 LORD SAVILLE: I think that is almost

17 certainly the case.

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

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

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

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

22 identified in the sense that his name is actually on

23 the video, given in relation specifically to his

24 person.

25 In our respectful submission, it appears


Page 51


1 difficult to understand why there is continued

2 anonymity in relation to somebody where, in respect of

3 a publicly available video, which is relevant to the

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

5 name.

6 MR TOOHEY: Mr Morgan, what are you

7 suggesting we do in respect of those persons? Simply

8 remove anonymity, or refer the question of anonymity to

9 them and see what their current position is?

10 MR MORGAN: I have no difficulty with the

11 proposition that it may be the Tribunal would wish to

12 satisfy itself that those who have made statements some

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

14 ruling and the subsequent ruling of the Tribunal in

15 October 1999, may wish to reconsider their position.

16 But my point is that all my clients have and

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

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

19 whether or not consideration has been given to

20 identifying these people in an open way, or whether

21 consideration has been given to approaching them with

22 a view to establishing whether they wish to continue to

23 avail of anonymity.

24 The reason I draw this to the Tribunal's

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


Page 52


1 communication, rather than a matter of substance. If

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

3 stage was persuaded that the need for an open Inquiry

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

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

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

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

8 anonymity, then the question arises as to whether the

9 Tribunal is now taking a different view about the

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

11 stage.

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

13 that if there is no open discussion about what is

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

15 can unfortunately cause concern among those who are

16 participating about whether there is in fact the same

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

18 a criticism, it is simply a reflection of circumstances

19 that exist.

20 LORD SAVILLE: We did not say in October last

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

22 which of course was in consequence of the decision of

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

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

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


Page 53


1 is why does the Tribunal in its working continue to

2 give anonymity to people who on the papers have

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

4 C520.

5 MR TOOHEY: Before you take one particular

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

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

8 accessible way?

9 MR MORGAN: Certainly, sir. We can make

10 available to you the precise quotes in relation to

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

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

13 lunchtime.

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

15 is a reasonably straightforward statement from a man

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

17 cannot understand, in the absence of any further

18 indication, as to why anonymity is being preserved by

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

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

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

22 without qualification "I confirm that I have no

23 objection to my name appearing in my statement",

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

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


Page 54


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

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

3 given in October last year. You will appreciate that

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

5 continues to do so on matters of great importance to

6 this Inquiry.

7 MR MORGAN: Yes.

8 LORD SAVILLE: If you are making an

9 application that we should now get in touch with all

10 those soldiers who at one time or another have

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

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

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

14 important things for the staff to do.

15 MR MORGAN: I suppose what I am really asking

16 is that the Tribunal should indicate to the public when

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

18 asking the Tribunal to give up other more important

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

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

21 Tribunal intends to get round to when time is

22 available, I respectfully say that the public should be

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

24 that that is the course which the Tribunal intends to

25 take.


Page 55


1 LORD SAVILLE: What you are really doing is

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

3 soldiers who at some stage or another have indicated

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

5 still their view.

6 MR MORGAN: I am entirely happy to

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

8 sir.

9 LORD SAVILLE: The staff will have heard your

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

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

12 assure you that the attitude of the Tribunal has

13 remained unchanged since its ruling of October last

14 year.

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

16 The second matter of concern is not in any

17 sense perhaps a matter that impinges by way of

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

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

20 others in various different ways. We draw particular

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

22 I have mentioned in passing at an earlier stage.

23 The position is that the memo 7th January

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

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


Page 56


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

2 civilians should be shot by the army within the

3 United Kingdom. We respectfully say that in the

4 absence of somebody explaining to us why it would not

5 be the case that it is absolutely extraordinary that

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

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

8 It seems to us, therefore, that it is

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

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

11 suggesting that unarmed civilians should be shot by the

12 army within the United Kingdom, why such a suggestion

13 from a most senior officer within the army would not

14 require some kind of response, whether in writing or

15 otherwise.

16 LORD SAVILLE: I follow what you are saying

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

18 response?

19 MR MORGAN: That touches to some extent --

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

21 expected from the person to whom it was written,

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

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

24 or written response --

25 LORD SAVILLE: Sorry, Mr Morgan, it is


Page 57


1 undoubtedly my fault: are you referring to what you

2 suggest must have been contemporary responses?

3 MR MORGAN: Yes.

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

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

6 have a statement from General Ford which addresses this

7 memo, do we not?

8 MR MORGAN: Yes.

9 LORD SAVILLE: You are talking about the

10 absence of contemporary documents commenting on that

11 memo?

12 MR MORGAN: Exactly. What I am really

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

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

15 actually needs to find out from somebody who may know

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

17 one could accept might have happened.

18 In other words, that brings us back to an

19 issue which was raised and considered by the Tribunal

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

21 relation to discrete matters it may be of advantage to

22 obtain the advice of a military expert, because one

23 imagines there must be a process of procedure in

24 relation to the passage of documents between senior

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


Page 58


1 that it would not be helpful to have somebody explain

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

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

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

5 investigate where the response is and why everybody

6 seems to have forgotten it.

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

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

9 have been expected and it would be important to know

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

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

12 memorandum find its way.

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

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

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

16 analysis yesterday. Really the point I was making was

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

18 response and we are therefore to accept as accurate the

19 proposition that there was no response and that is

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

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

22 want to establish: is that something which was in

23 accordance with procedures, because if it was not in

24 accordance with procedures, then a line of inquiry

25 would open up as to why those procedures were not


Page 59


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

2 to, sir.

3 It is relevant also in my respectful

4 submission because there are at least two casual

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

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

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

8 One is the reference by General Tuzo at the

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

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

11 the course of his recommendation as to tougher action,

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

13 response having regard to the limited capacity of the

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

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

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

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

18 recommendation is at 14:

19 "We must accept that the current force level

20 cannot be appreciably increased merely to impose a ban

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

22 we are left with two possible courses of action,

23 besides speeding up legal proceedings:

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

25 public meetings.


Page 60


1 "(b) additional measures for the physical

2 control of crowds which threaten to march.

3 "15. The only additional measure left for

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

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

6 would be killed but innocent members of the crowd.

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

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

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

10 ruled out."

11 That raises the question of whether one is

12 expected to accept that it was a mere coincidence that

13 General Ford, on 7th January, and Colonel

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

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

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

17 knew what the other was thinking.

18 We respectfully say that one needs to

19 understand the processes to make sure that one gets

20 a proper understanding of what exactly happened to that

21 memo, which certainly appears to have disappeared into

22 the blue horizon.

23 The third point of concern I wish to draw to

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

25 relate to the question of statements that are not


Page 61


1 available. The first bunch of statements to which we

2 draw attention are those of certain critical

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

4 who clearly had an understanding that there was likely

5 to be violence on the day.

6 Dr Paisley --

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

8 bundle.

9 MR MORGAN: I am sorry, I apologise for

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

11 Dr Paisley, who as I understand it --

12 MR CLARKE: Not in the bundle. Declined to

13 assist so far.

14 LORD SAVILLE: Mr Paisley has been approached

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

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

17 evidence he might give is so important that if he

18 continues to decline he should be subpoenaed to appear.

19 MR MORGAN: The third person to whom the same

20 consideration I now understand applies is Mr Taylor.

21 I note yesterday Mr Clarke helpfully intervened to

22 indicate that the Tribunal had been seeking to make

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

24 far failed to make contact.

25 MR CLARKE: No reply to letters, is the


Page 62


1 answer.

2 LORD SAVILLE: Did you hear what Mr Clarke

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

4 letters.

5 MR MORGAN: I understand that the Tribunal

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

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

8 are there as matters of concern.

9 The next statement is that of

10 Colonel Wilford. In my respectful submission the

11 position in relation to that is rather different. We

12 would draw attention to the ruling, as we understood

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

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

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

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

17 as to the provision of the statement of

18 Colonel Wilford.

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

20 have now received the statement of Colonel Wilford, and

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

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

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

24 for distribution, it having been received very recently

25 indeed.


Page 63


1 MR MORGAN: The reason that I have drawn

2 attention to the ruling was that my understanding was

3 that the statement in its unredacted form was due to

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

5 thereabouts. Insofar as Sector 2 is concerned, the

6 statement of Lieutenant N, who was responsible for

7 Mortar Platoon, who was the person who apparently

8 briefed them prior to their arriving in Derry on the

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

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

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

12 to be provided.

13 I do not know whether there is any assistance

14 available in relation to that.

15 MR CLARKE: The position is that Lieutenant

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

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

18 LORD SAVILLE: Who represents Lieutenant N?

19 MR GLASGOW: I do. Could I conveniently help

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

21 disagree, but to add to what my learned friend

22 Mr Clarke has said, first about Colonel Wilford.

23 I would like the Tribunal to know that his

24 statement was returned on the date when I gave the

25 undertaking that it would be returned. I cannot give


Page 64


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

2 problem has been communication between Eversheds and

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

4 as to whether or not those statements contain all of

5 the things -- contain all the statements that were

6 referred to in the interviews.

7 That is a process that was only raised

8 comparatively recently and I believe now has been

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

10 physically sitting behind me at the moment who has been

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

12 the sort adjournment, if you wish me to.

13 I am sure Mr Clarke will confirm

14 Colonel Wilford's statement was returned on the date

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

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

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

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

19 understood to be a ruling that if the statements had

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

21 to be provided.

22 We do not understand why the drafts have not

23 been provided and we respectfully say that there may

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

25 certainly a point of perception, in terms of our


Page 65


1 clients' perception on whether or not they are playing

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

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

4 it is a matter of concern.

5 LORD SAVILLE: I can understand it is

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

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

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

9 least two people and even then there have been

10 unfortunate slip-ups.

11 In addition, of course, there are many other

12 statements that are going through the same process.

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

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

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

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

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

18 and those efforts will continue.

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

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

21 in the suggestion that there is some form of secret

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

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

24 violently, as the Inquiry requires this information,

25 and secondly, I suspect we would probably make public


Page 66


1 our disquiet of any such procedures.

2 I think everybody at the moment, on my

3 information, is doing his best to produce these

4 statements, and indeed many other statements, as soon

5 as possible.

6 MR MORGAN: I am grateful for that

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

8 the perceptions of the deficiencies of the

9 Widgery Tribunal was that the civilian witnesses

10 perceived that they were required to give their

11 evidence first and that the army witnesses then had an

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

13 evidence in whichever way they wished.

14 My clients, one of whom did give evidence

15 before Widgery, is anxious to ensure that he is

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

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

18 in practical terms, it would, in our respectful

19 submission, not be an acceptable state of affairs for

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

21 to the events of Sector 2 before the statement from

22 Lieutenant N, who is the person that he believes

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

24 and there is a timing issue, in my respectful

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


Page 67


1 careful about.

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

3 the perception, not that the Tribunal is doing

4 everything that it can and ought to ensure that these

5 statements are made available, but that those who are

6 providing the statements are exploiting the

7 opportunities given by the Tribunal and I am glad for

8 the indication from you that you certainly have no

9 reason to think that that is happening.

10 LORD SAVILLE: I think it was right for you

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

12 those responsible for the production of that statement

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

14 of what you have just said.

15 MR CLARKE: Could I perhaps make plain, the

16 position is slightly the opposite from what my learned

17 friend fears. Colonel Wilford's statement was returned

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

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

20 Inquiry, as to whether the statement ought to include

21 other material. A similar process arose in relation to

22 Lieutenant N. So what in those two instances has

23 delayed the production of the final statement are

24 concerns raised by the Tribunal as to whether they

25 dealt with all the matters they should deal with,


Page 68


1 rather than anything else.

2 MR MORGAN: I am grateful for that.

3 There was one other matter on which Mr Clarke

4 helpfully intervened in relation to the statement from

5 Mr Hume. We believe that the statement which is

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

7 is an Eversheds statement --

8 MR CLARKE: KH8, taken by Eversheds.

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

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

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

12 we would be glad for it.

13 LORD SAVILLE: There certainly is an

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

15 not sure.

16 MR CLARKE: I can understand my learned

17 friend's puzzlement, because there is an Eversheds

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

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

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

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

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

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

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

25 circulation and if and insofar as I suggested it was


Page 69


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

2 come forward in the ordinary process.

3 LORD SAVILLE: Again, Mr Morgan, those

4 responsible for putting it into our database will no

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

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

7 statement straightaway, no doubt we will provide you

8 with a printed copy.

9 MR MORGAN: I am grateful for that

10 clarification, sir.

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

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

13 relation to this question of statements that take some

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

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

16 made by Detective Inspector McNeill to his

17 Superintendent at Victoria Barracks, RUC, 23rd March

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

19 Bloody Sunday and the associated Widgery Inquiry. In

20 paragraph 8 he says:

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

22 army co-operated in the supply of information and

23 statements but this ceased and I was only supplied with

24 a series of initial statements from the soldiers who

25 actually fired weapons. These statements were very


Page 70


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

2 own information, to try and identify the killed and

3 wounded with a particular soldier. In following the

4 evidence given by soldiers to the Tribunal I discovered

5 that the letters allocated to the soldiers' statements

6 had been rearranged and they did not correspond.

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

8 correctly lettered statements submitted to the

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

10 not received these statements. In some cases the

11 evidence given by the soldiers did not tie up with

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

13 number of rounds fired."

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

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

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

17 that they are expecting or are concerned about in

18 relation to the military witnesses.

19 If it is the case that those concerns can be

20 allayed by keeping people informed about the state that

21 we have reached in relation to outstanding statements,

22 then in my respectful submission, subject to not

23 imposing undue burdens on the Tribunal, I respectfully

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

25 done.


Page 71


1 LORD SAVILLE: I understand that request,

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

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

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

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

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

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

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

9 capable of being readily allayed.

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

11 We have obviously raised the issue in correspondence in

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

13 Can I say that the other invitation we would

14 make to the Tribunal in terms of demonstrating the

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

16 submission be of considerable assistance if the

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

18 civilian witnesses that it is proposed to call and the

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

20 to indicate through the Tribunal what is proposed in

21 relation to the remainder of the witnesses.

22 I understand that on the Internet that

23 information has been made available in relation to the

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

25 civilians, politicians, military witnesses et cetera.


Page 72


1 But it is my respectful submission that we must surely

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

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

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

5 order is.

6 The reason that I put that before the

7 Tribunal is that it will assist in allaying any concern

8 that there are different rules in relation to the

9 soldiers as compared to the civilians. There is

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

11 if people are to retain the confidence, which

12 undoubtedly the Tribunal has engendered by virtue of

13 the enormous amount of work and effort and skill which

14 has been put into what has happened so far.

15 These suggestions are made in an attempt to

16 helpfully assist the Tribunal in terms of its thinking

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

18 continue to retain the support of those who are

19 participating.

20 LORD SAVILLE: I think I can say

21 straightaway, there is no such thing as different

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

23 propose to call to give oral evidence those witnesses

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

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


Page 73


1 answer questions.

2 As to publishing proposed names and the order

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

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

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

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

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

8 many months away.

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

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

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

12 the minds of others.

13 LORD SAVILLE: It is of course in our minds

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

15 MR CLARKE: There is absolutely no question

16 of applying a different rule to the soldiers to that

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

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

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

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

21 civilian witnesses, a list of those police witnesses,

22 those military witnesses and those official witnesses

23 whom I propose should be called orally and those whose

24 evidence I propose should be read.

25 My intention is to follow exactly the same


Page 74


1 procedure in relation to those witnesses as in relation

2 to the civilian witnesses, namely to afford the

3 opportunity of people representing somebody who I think

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

5 and giving reasons for that request.

6 When we did that in relation to the civilians

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

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

9 remaining dispute in relation to civilian witnesses.

10 Should there be any irresolvable dispute, then the

11 Tribunal will have to rule upon the question.

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

13 learned friends will understand this is really quite

14 a time-consuming procedure. There are something like

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

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

17 the production of a list with references and an

18 indication of whether they will all be called or not

19 requires reading all of them and making a judgment and

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

21 contains about 2500 individual box entries. We will,

22 of course, do this when we can.

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

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

25 witness for a considerable time and there is a very


Page 75


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

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

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