Tuesday, 17 February 2004
Sub-Committee on the Barron Report DebatePage of 3
Chairman: I welcome all of you to the resumed hearings in the consideration by the sub-committee of the report of the independent commission of inquiry into the Dublin and Monaghan bombings, the Barron report. This morning the sub-committee is dealing with the first part of Module 5 in its programme of work and will hear contributions from the victims and relatives of the 1974 bombing represented by Des Doherty & Company, Derry. The sub-committee will also discuss the report with the Pat Finucane Centre and the Irish National Congress.
I welcome Mr. Ed O’Neill, Ms Denise O’Neill, who is Ed’s sister, Ms Linda Sutherland, a sister of Mr. John O’Brien, Ms Eileen Behan, a sister of Mr. John O’Brien, Ms Bernie Bergin, who was injured in the South Leinster Street bombing, and Mr. John Bergin. I also welcome their solicitor, Mr. Desmond Doherty and counsel, Ms Miriam Reilly, BL, Mr. Eoin McGonigal, SC, and Mr. Michael Mansfield, QC.
Before we begin, I remind you that while Members of the Oireachtas enjoy parliamentary privilege, invitees appearing before the sub-committee do not, as I am sure you are already aware. I now invite Mr. O’Neill to make his opening statement.
Mr. Ed O’Neill: My father was murdered by cowards on 17 May 1974 in the Parnell Street bombing. My brother, Billy, and I were severely injured. My injuries and suffering have been well documented. Deputy Costello and Deputy Finian McGrath, members of the sub-committee, know me personally and the nature and extent of my injuries. I am not repeating them here today or answering any queries about my suffering. Please respect that wish.
I also respectfully refer the sub-committee to my submission forwarded to it via my solicitor, Mr. Doherty, that I am sure the members will read and consider. I also repeat the contents in their entirety of the statement read by my solicitor to the sub-committee on my behalf of 20 January 2004. I am well known to the Taoiseach’s office, the Department of Justice, Equality and Law Reform, the Garda and Mr. Justice Barron. As long as I have a breath in my body I will campaign vigorously for truth, justice and accountability on the part of this State and the British state.
I will never stop speaking my mind and I intend, with dignity, to honour the memory of my father by never allowing this State in particular to shy away from the responsibilities it has to me, my brothers, Billy and Niall, my sisters, Denise and Angela, and my mother, Martha. I do not want to be rude or disrespectful to the members but please understand that I do not want any of them to feel sorry for me. I do not want their sympathy either especially if they follow that up with an apology for not being able to do anything for me. I say this on behalf of my entire family, members of the O’Brien family here today and Ms Bernie Bergin, who is also here today.
I personally feel and believe I have been treated like it was I who planted the bombs. These are harsh words, one may think, particularly in this day and age, but please understand I have no other way of expressing myself. I feel totally abandoned by the Irish State. I have been made to feel like I have done something wrong. All of us here today want to be treated as law abiding citizens of this State, with rights under our Constitution and the European Convention on Human Rights. My lawyers advise me that the right to life enshrined in the European Convention on Human Rights and the consequences of that right mean that there must, as a minimum, be a proper and full investigation into the murder of my father, the attempted murder of Billy and myself, and all those other human beings murdered and maimed in 1974.
My family is entitled to an effective and public inquiry that we can be involved in. This is why Barron has failed us. If there is anything to be gained from the Barron process, it is the knowledge that private inquiries do not work. We know the sub-committee has to consider whether a public inquiry would be required or fruitful. Of course it is required. It is now necessary not only for all the reasons the members have already heard, but because of the legal obligations of this State as a result of the implementation of the European Convention on Human Rights.
In 1993 my mother, in the “Hidden Hand” documentary, encapsulated how we all felt then and still feel now. The members will remember that she said: “It’s never too late. I would love to see justice being done and find out who bombed Dublin.” We also need to know how and why Dublin was bombed and we need explanations for the unfortunate aftermath of the bombings. The sub-committee has now heard these complaints many times and I make no apology for repeating them. The unfortunate aftermath I refer to includes the premature ending of a proper investigation by the Garda and the missing Department of Justice files. The whole issue of the so-called forensic evidence needs to be explained by independent sources to an independent tribunal. This relates not only to the chain and custody of evidence, but to a proper independent examination of that evidence.
The issue of intelligence and collusion has already been debated significantly in this Chamber. Even the Minister, Deputy McDowell, confirmed his own opinions in that matter. However, remember that although this is a massive issue, it is not the only issue. It is central to what has happened but I can only repeat what I said in general terms in the 1993 documentary and apply it specifically to this issue. I said in the “Hidden Hand” documentary that I would like to see it exposed. That is one of the reasons a public tribunal of inquiry must be established. We need, as a society, to establish and expose to the world the truth.
The British Government and the RUC were under no legal obligation to assist Mr. Justice Barron’s private inquiry. With respect, they are under no legal obligation to assist the sub-committee either. Unfortunately, we have seen the results of that. They need to be put under a legal obligation that is enforceable and our lawyers will speak more on that. I would say that we have all noticed the sub-committee’s obvious disquiet with the behaviour of the British Government, in particular in respect of their non-attendance before it. If the members multiply our annoyance by millions, they might hopefully just begin to understand how we feel and how we have been treated. It should also give the members a sense of the outrage that we feel and why our statement of 20 January 2004 to the sub-committee was so emotive.
I tell the members from my heart that I am sick of all this. I do not want the members’ sympathy. I intend to exercise my constitutional rights and the rights and remedies available to me under the European Convention. I say this on behalf of all of us here today. We, at least, have come here with our lawyers to help the sub-committee as best we can, despite our reservations about the entirety of this process. We mean no disrespect to the members and we genuinely wish the sub-committee well in its deliberations. I thank the members for taking the time to listen to me. I know they will extend the same courtesy to our legal advisers who can deal with all the issues relating to this section of the hearings.
Chairman: Thank you very much, Mr. O’Neill. Your contribution is very helpful to the sub-committee. I respect the reservations you continue to have about our work. I am also grateful that you have acquiesced to allow your legal team to make relevant submissions. I have heard you speak on radio over the years and, without being condescending, I applaud your determination and continuing efforts on behalf of all of the victims to arrive at some form of closure on the terrible deeds of 17 May 1974.
Deputy F. McGrath: I welcome Mr. O’Neill to the hearings and thank him for his written and oral submissions. As Mr. O’Neill mentioned, I am well aware of how he and his family have suffered over the years. As he said, we are not dealing with sympathy here today. Mr. O’Neill is telling the sub-committee that he demands truth and justice. I give him a commitment that he will receive a fair hearing from every member of the sub-committee. We have very open minds and we respect completely Mr. O’Neill’s views to which we will listen carefully. Our conclusions will be based on the truth and on justice.
I understand totally Mr. O’Neill’s harsh words about what has happened to him and his family. It is important, right and proper that harsh words are heard during this process. We must hear the voices of the families and the victims. While we have listened to some of the voices up to now, it is essential that views like those of Mr. O’Neill are recorded. While I acknowledge Mr. O’Neill’s reservations about the process, he should know that he will receive a fair hearing. We will listen very carefully.
Deputy Costello: I wish to be associated with Deputy Finian McGrath’s words. I thank Mr. O’Neill for attending today. He has provided us with a very strong personal statement and he spoke on behalf of the Bergin and O’Brien families. That is very important to the sub-committee. I am very glad Mr. O’Neill came here today. We have a job to do and it is very important that we hear from Mr. O’Neill whom I assure the sub-committee will carry out its task in a fair, open and just fashion.
Chairman: I welcome the legal representatives of the O’Neill and O’Brien families whom I invite to make opening statements in whichever way is felt to be appropriate. Mr. Michael Mansfield will commence. Mr. Mansfield, while the Oireachtas Members enjoy parliamentary privilege, that same privilege does not extend to you.
Mr. Michael Mansfield, QC: I thank the sub-committee for allowing us this opportunity. As we have made a written submission, which the sub-committee has, on behalf of the families I represent - O’Neill, O’Brien and Bernadette Bergin - I do not intend to read it out as the members will have read it. However, I felt it might be important if I were to develop aspects of it before the sub-committee, indicating the material which lies behind the submission. We feel very strongly that the sub-committee is standing on an historic threshold. It is a threshold which has a statutory basis which here has effectively only just got its incorporation and enforcement. It was incorporated and enforced in England only a few years ago as well, so it is all very recent - I refer to the European Convention on Human Rights. When that arises, it clearly does not do so in order that lip service is paid to it in the hope that it will then become a panacea. It is plainly intended, as it is elsewhere, as an effective means or standard of judging all aspects of life with regard to the maintenance of human rights - easily said, but more difficult to put into effect.
The statute, which I have with me, and to which the committee may have access, effectively came into law on 31 December and incorporates a particularly important right. There are two important aspects to the right in the Constitution. One is a substantive aspect, to which I will return, while the other is procedural. I have started with this not only because it is historic for the committee members to be obliged to consider how this touches on these events, but because the framing of the terms of reference make it obligatory, leaving aside the statute itself. As Mr. Ed O’Neill said, our contention is that under the Act and in the circumstances of this case, the committee has little or no option but to order a public inquiry.
The committee members are familiar with the committee’s terms of reference. The third one, which applies particularly to this module, is whether having regard to the report’s findings, and following consultations with the inquiry, a further inquiry into any aspect of the report would be required or fruitful. The word “further” is somewhat otiose, because no inquiry has yet taken place, so what is meant may be “a” public inquiry. It is the phrase “would be required or fruitful” that is important. The words “required” and “fruitful” are disjunctive, not conjunctive. I would like the committee members to underline them, because whether it is intended or not, they link in very firmly to the convention and the obligations that arise under it.
While it is possible to have an inquiry that is potentially fruitful and therefore one might say, also necessary, one can have an inquiry - and this is where it becomes important - which is necessary even though the definition of fruitful in terms of producing new evidence may not be achieved. That is not the test, as I will seek to demonstrate. It is whether it is necessary with regard to the public perception of human rights being preserved and protected. It is an important process which must not be watered down. The conclusions of any tribunal must adhere to the minimum requirements that are now regarded as being consequential upon the particular right to life of which I speak. This particular article is important from a substantive and procedural point of view is not just because of the legal procedural points I will make, but because underlying it is a moral rectitude or point.
This committee recognises that it is not an inquiry. The members have indicated on many occasions that the committee is taking submissions, not evidence. It is not cross-examining or impugning characters, as the Abbeylara case and its restrictions make clear. This being the case, one has to see where progress can be satisfactorily achieved. The moral underlay to the article I am coming to can in this set of circumstances be identified. I will identify three themes that seem to have arisen before the committee, and which have appeared or re-appeared again today. The first point made by those people I represent is in the statements. Again, I can give you the page references in Ed O’Neill’s and Bernadette Bergin’s statements but you will find in their statements a very clear - what we call - expectation; it is the first of the moral underlay points, namely, that when it was announced that there would be a private inquiry, that was not something that those I represent had accepted. What they had wanted the point has been made by the group, Justice for the Forgotten, it has been made by Don Mullen and it has been made by those I represent - was that no one should be under any illusion about what has happened since with regard to the Barron Commission, effectively, and these hearings do not satisfy what was understood to be merely a preliminary step towards the establishment of a public inquiry. In other arenas that would be called a legitimate expectation. In other words, if you, as a member of the public, have a legitimate expectation - we say they do - that there will be a public inquiry along the lines that satisfy the minimum requirements of the convention, even though it was not put in those words, that is one of the first moral starting points for what we say is, effectively, a legal obligation under the convention.
The second moral underlay to the article, which is recognised in the cases and which we say is a fruit to be born - it could be defined as a product, effectively, and it is often forgotten as a product - satisfies both the necessary condition and the fruitful condition, namely, a public inquiry would only begin and may close. The words often used are “provide closure” for families who have suffered years with their feelings of neglect, hurt and abandonment, and have been effectively marginalised. Given the size of this atrocity, which everybody recognises is the largest of its kind, effectively, we are not just dealing with the feelings of the families of the 33 or 34 people who died, or even the 200-odd who were injured, we are dealing with a community that was affected by what happened. There are feelings that go well beyond the immediate victims and their families. Again, that is why the convention was cognisant of the fact that there will be a necessity to satisfy that, even if others may say, “Well, it didn’t affect me.” If what has happened here is at the core of a system and if it were to happen to those others who may at the initial stages ask why it is necessary, they would be the first ones calling for a public inquiry.
Let me interpose something that happened this week on the railways in England. What was the first thing asked? It is almost a human response, where there is a tragedy which may be systemic and which may involve many different agents of the state, that people want - you would want, if you asked yourselves - a public inquiry for yourself or your loved ones in order, as it were, to bring closure to the feelings of neglect that would otherwise occur. I do not think anybody is disputing that there have been these feelings of neglect. That is the second moral justification for the article.
The third is a fairly obvious one but it can be forgotten and it links to that second one but it applies to the public at large within which we operate, namely, a public inquiry that measures up to the criteria that flow from the European convention can provide a restoration of public confidence in the system of justice which may otherwise have been perceived to fail in the sense that either the investigation was flawed - to a very large extent the Barron Commission indicates it was a flawed investigation - or, in addition to that, plainly there were no prosecutions, one of the issues that had to be addressed. It is in that context that I am going to turn in a moment - I would not normally do it - to a recent authority which I feel will have a strong bearing and I ask you to read it at some stage but may I just refer to it at this stage? We had it copied but I am not sure whether it has been handed out. It is a case called Mubarek. Can I inquire whether you have that? If you have, there is a particular part of Mubarek which I want to cite at this stage. It is a House of Lords decision against the Secretary of State for the Home Department ex parte Amin, but, in fact, it involves a young man called Mubarek. If you have it, I wonder if I could kindly ask you to turn at this juncture to paragraph 31? This is another reason for the importance of the convention and the article to which I am coming.
The case itself concerned a young man who was killed, murdered, in custody in an institution of detention in England. He was murdered by his cell mate who eventually was convicted of murder and it was regarded and found to be a racist killing. The key question was how this young man, called Mubarek, ever came to share a cell with a man manifesting these propensities for the period of time in which he was there. That was the key issue that confronted the courts.
There had been a murder trial. There had been a police investigation into the prison system and there had been a commission of racial equality inquiry not dissimilar to the Barron Commission. The House of Lords said in the end that it was necessary in order to satisfy the convention. This is why this case, as you will see it has been heard very recently, namely, on 16 October last year, is only barely beginning to percolate everyone’s consciousness as to the significance of what the case is saying.
In paragraph 31, where the court is indicating what the State’s duty is to investigate, part of the paragraph indicates what the purposes are, and the purposes go beyond the moral underlay that I have just been talking about. The purposes of such an investigation - this is the main speech in the House of Lords, by Lord Bingham - are to ensure so far as possible that the full facts are brought to light. That is the first important aspect of this. I want at a later stage if there is time - I hope I can just briefly touch on it to indicate why we say the full facts in this case have not been brought to light. Part of the responsibility for that lies with some of those in authority, some of them on this side of the Border and some of them on the other side, particularly in England. That is the first point.
That culpable and discreditable conduct is exposed and brought to public notice is extremely important in the light of the allegations that are made against, not just the perpetrators, because as Ed has said in his statement, everybody knew before Barron even began his work that the responsibility lay with the UVF. The question is how did they come to be in a position to commit the act they did, and was there within their ranks, as it were, of the conspiracy, not just collusion, but members of the British State, namely, the UDR and RUC? If they were there, that has to be - we say - properly exposed in the way it is said here.
Thirdly, that suspicion of deliberate wrongdoing, if unjustified, must be allayed - we say, so far, that has not been achieved. That dangerous practices and procedures are rectified and that those who have lost their relatives may at least have the satisfaction of knowing that lessons learned, in this case from his death, may save the lives of others is important.
May I touch on something there? One of the significant matters those I represent are concerned about is the extent to which, particularly in a day and age in which we are facing threats from a different kind of terrorism but with the same effect possibly, there are in place, and were at the time, the necessary protocols and systems for public safety so that - to put it very simply - a car stolen in Belfast was notified to the RUC and the Garda before the bomb ever went off. What was going on in Dublin? Never going to get a warning that is sufficient to allow to do everything but, even if there is 15 minutes, what went on? This is an issue which I do not think is addressed in the Barron commission. It is a very simple issue and it would arise now. In other words, what are the protocols? I am not asking that they are exposed here in public but the public require to know, then and now, what systems are in place. That is why this paragraph is extremely important as to the purposes.
Now may I just turn to and I would like to do it just in a little detail because what is happening here is brand new. In the statute that you have - I will just give the reference that came in, which is Article 2 of the convention on page 8 of the statute if you need to look it up. I will read it quickly and then deal with how the case law has developed on this that bears upon the task that you have to face, which we say makes it necessary that there should be a public inquiry. Article 2, on page 8, is the article of the convention. I appreciate, and we have set it out in our submissions, that your 1937 Constitution effectively has articles that are not dissimilar, so it will not come as any particular surprise to anyone. The article that is now incorporated and therefore, we say, must be seen alongside your Constitution reads:
The importance of the article itself is that the article does not say what the duties are that arise out of it. As you may be aware, the courts have had to do that and so far, presumably, here - again, I stand to be corrected if there has been one I do not know about - it stands to the courts to interpret what the obligations are. So I can only pray in aid how the English and European courts have begun to interpret what the duties are which arise under this.
Can I just summarise what they are? They are set out in Mubarek - I call it Mubarek for shorthand but it is labelled Amin or ex parte Amin. The duties are in this way. First of all, the obvious one that the state plainly is not entitled to kill its own citizens - that goes without saying. Second, there is a further obligation which is rather important. The state has an obligation not only not to kill - a positive obligation in one sense - it has another obligation and that is to ensure, so far as it is possible under certain conditions, that its citizens are not killed by others. We have put the case in the appendix to our submission. There is a list of cases and, again, I am sorry to trouble you with them but I feel it is important in the longer run for you to perhaps have a chance to look at it. May I just highlight which one it is? In appendix A, it is the second case, Osman, which I do not ask you to look at now. Osman is saying that the obligation under Article 2 is triggered and engaged, if there is a real and immediate threat to its citizens from a third party - it is then engaged as well. There are two ways in which the State’s obligation is engaged: either by the activities of its own agents or itself - of course, there is a question mark over that in this case - and plainly to protect against the activities of others. In terms of 1973 and 1974, that context must be what is generally labelled “the Troubles”. In any event, it was a clear environment of terrorist violence that existed then, which is sometimes difficult to recall but not for the people who lived through it.
Those are the obvious obligations. What the European Court and the English court have adopted is the converse of that; in other words, it is a further obligation. It is not spelt out in the article. In the further obligation, and that is where it particularly bites this case, the courts felt that if the substantive obligations about protecting life and so on are to mean anything, then one must have a backup. The backup, effectively, is an investigation which is effective, as Mr. Ed O’Neill touched on this morning. There has to be an obligation. Where the substantive obligations are triggered to protect life and so on, if there has been a violation of that and people have lost their lives, there is a concomitant obligation to investigate it according to certain minimum standards.
That is where the case law comes in because this case indicates - it is a summary of all the other cases we put in the index - that there are certain minimum requirements that have to be met, in whatever form. It is recognised that each European nation or member state that is signed up to the convention may have different means of investigating. The members may be aware of how different states investigate. It is recognised that the mechanics of investigation may be different in different states. However, whatever the mechanics of investigation, the minimum requirements must be met.
In the authority itself, one will see that the background to this case was extraordinary. That is why we say in this one that a similar exercise must be undergone. On page 4 of 25, there is a resumé of all the inquiries that had taken place, or not taken place, as the case may be. One will see from paragraph 9 that there was a murder trial and an investigation, but that did not explore bigger issues. An inquest was opened but it was not resumed because, again, it was not thought that it could investigate all the issues. There was a police investigation into the prison service in regard to gross negligence, but there was not sufficient evidence to provide a prosecution. That was not thought to be enough. There was a Butt inquiry into the circumstances surrounding the murder - that is internal to the prison service. Mr. Butt was a senior prison officer, but that was not regarded as sufficient.
Paragraph 13 refers to the Commission of Racial Equality which also conducted an inquiry, of which one or two days were in public. It was somewhat similar to the Barron commission. One can see there were many attempts to try to get at what was regarded as the necessary truth about the issues surrounding systemic failure in regard to his death in prison. What then happens is a rehearsal in this particular case of all the law that is relevant. I will only indicate where it starts because I will not read it now. Paragraph 19 is where a review of the European law begins. You will see that the very first case that is mentioned is the one I have already touched on, Osman v. the United Kingdom, because there it is dealing with the substantive obligations that arise therefor. Then, a little bit lower down on the page, is the beginning of what is sometimes called the procedural obligations - some courts call them the adjectival obligations - to have an effective mechanism. You will see in this quote from another case, namely, McCann, the minimum requirement of a mechanism whereby the circumstances of a deprivation of life by the agents of a state may receive public and independent scrutiny, the nature and the degree of scrutiny which satisfies this minimum threshold must depend on the circumstances of the particular case. The cases are then set out thereafter.
I will not go through them all but there are essential points that are made about the minimum requirements because what this case eventually said in the House of Lords, overturning a decision of the Court of Appeal, is that the minimum requirements must be met. They begin to deal with some of the minimum requirements on page 9, namely, that the investigation must be effective. You will see that on page 9, it is in paragraph (6). The investigation must be effective in that sense, and then there is another case, Jordan.
This is very important because, of course, Barron was not really able to do this and there has not been a determination capable of doing what is set out there, of leading to a determination of whether the force used in such a case was or was not justified - that probably will not take long - and to the identification and punishment of those responsible. This is not an obligation of result but of means, in other words, how you arrive at that first minimum requirement of determination.
Further down on that page you will see, under paragraph (8), a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. That is extremely important. The Barron commission was not in public, much of its reasoning is not in public. I appreciate that Mr. Justice Barron has appeared before you and answered some questions about its reasoning but, again, when you have a circumstance as grave as this one, plainly the degree of public scrutiny required may well vary from case to case. This one, as with Mubarek, we say equally, will require an anxious and considerable degree of public scrutiny.
In all cases, paragraph (9) is very important for those I represent - the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests. May I just develop that? What is important for the next of kin is not that they are asked to pop in now and again, which is essentially what the Commission for Racial Equality was doing in the Mubarek case, asking them to come in and make some representations, what is really required in a case of this gravity and complexity is for the parties, particularly the families, to be represented in order that their interests are safeguarded in two ways. One is not just that their position is fairly represented and fully represented, and as you can see the families in these cases are particularly articulate, but there is a further protection that is necessary. They cannot plainly come here, and it has been said to all those who do, and you have said it again today quite rightly, “Be careful, we have privilege, you do not.” So they cannot go very far in what they say publicly because they do not have that protection, which they would have in a public inquiry.
That is one protection. There is a further protection that they would have in a public inquiry to their interests, perhaps it is the most important, that they would know what others are saying about them and would have a chance to address it. The Salman inquiry indicated there have to be certain minimum advance notice provisions, and I am sure the same exists here, so that a family - I do not think there will be allegations against any of the families so it is not quite as serious as that from that point of view - have advance notice of what other people are saying on issues that matter to them. Even though there are no allegations against them, they can meet the issues by knowing in advance what is being said, whether on the expert front to do with the skills and possibilities of the UVF in regard to ANFO and all those issues the sub-committee has already debated and had representations upon. They can meet those through their representatives. I do not speak for the Government of today or a previous Government, but the sub-committee has had before it, I suggest, some reasonable observations from Mr. Cooney, who asked why were these allegations, in which no interest was taken, not put to him. I am not passing judgment on whether the Government did or did not do so. The simple point is a procedural one, and he has a point there. He should have been notified so that he could have come back at it. He said that, furthermore, the record was not right here - he did not say those things and so on. I do not want to get into all of that, only merely to indicate that representation is extremely important for all parties and particularly so for the next of kin, which is what they are saying there. This has not happened. They have not had a facility, as it were, to cross-examine or to be more precise in inquiries to examine the other witnesses and what they are saying.
The measures of our judicial inquiry that would satisfy Article 2 are repeated on pages 10, 11 and 12; similar points are made throughout. I have skipped the Court of Appeal decision, one which they overturned. The concluding speech is on page 16 - I already read part of this paragraph. It states that the state’s duty to investigate - paragraph 31 - is secondary to the duties not to take life unlawfully and to protect life in the sense that it only arises where a death has occurred or life threatening injuries have occurred. It also states that it can fairly be described as procedural but in any case where a death has occurred in custody - I do not develop the rest because this is not concerning a death in custody - I have already laid out the purposes.
On the top of page 17, citing Jordan and Edwards, previous cases to which I have already made reference in terms of citing the dicta, have laid down minimum standards which must be met, whatever form the investigation takes. It states that the first judge who heard it, Mr. Justice Hooper, loyally applied those standards.
There are further speeches that are important and to save coming back to it, I will indicate some other observations. There is an important passage in Lord Steyn’s speech which I hope addresses concerns members may have. In paragraph 52, what the Court of Appeal had done, and the House of Lords has said wrongly - I am not suggesting the sub-committee has done it because I would be pre-empting, or it would be pre-empting, what would be its final decision - is that the test is not what would be the benefit of a further inquiry. In other words, if one is worried that it will only go over old ground, that is not the test at this stage. The test is whether the minimum requirements under article 2 and the case law have been satisfied, whether one likes it or not, because it is central and sacrosanct in regard to the protection of life or the obverse of the coin, which is that there should be an investigation and an obligation to investigate.
Mr. Michael Mansfield, QC: What Lord Steyn said is interesting; it is an observation. He said that the Court of Appeal posed the question as to what would be the benefit of a further inquiry. It would ask that given the number of inquiries or semi-inquiries that have taken place in the Mubarek case. He also said that the investigations conducted so far do not either singly or together meet the minimum standards required to satisfy article 2, but, in any event, it is vital that procedure and merits should be kept strictly apart; otherwise the merits may be judged unfairly. He is saying that you must not allow the very natural riposte that is made - “where are we going from here and what we are going to get out of it?” - to infect the procedural decision which is vital to a maintenance of the right to life. These are two very distinct questions which, interestingly, are echoed in your terms of reference - “necessary or fruitful”. I am only dealing at the moment with the “necessary” part. That is actually whatLord Steyn is putting his legal finger on. He cites the following paragraph as a persuasive argument:
All he is saying is that one cannot pre-judge a properly constituted inquiry as to what it might come up with. It might not come up with anything but that does not matter; there will have been, as it were, an adherence to the convention and the rights that arise out of it, and the public will be reassured that the determination, as it were, has arisen in a public and open way, as demanded by that. That is an important observation.
The other speeches in this judgment - I do not go through them all - are effectively saying much the same, namely, that one must keep the merits separate from the procedural arguments. Therefore, if you keep them separate, you begin to understand why article 2 is so important. Also, there is an indication that, plainly, if a public inquiry is set up, a very firm hand must be kept upon it. What I would like to do in the time allotted is indicate - I hope plainly, as I have done as I have gone along - that the minimum requirements have not been met in this case yet. They could be met by a public inquiry but, of course, your concern will be about how a public inquiry will work. One perhaps needs to look at the mechanics of it given that pubic inquiries from time to time take on a life of their own. One has to be aware of that.
If you turn to page 18, you will note another observation, which is the lead-in to the next section. It is the last observation of Lord Bingham before he leaves and Lord Slynn takes over. All the judges agreed and there was a consensus on the need for a public inquiry in Mubarek’s case. Paragraph 39, at the end of Lord Bingham’s speech, states: “I cannot accept the submission of Mr. Crow [obviously on behalf of the Government] that any further inquiry is unlikely to unearth new and significant facts.” He is approaching the same point that Lord Steyn approached, namely, that it is the wrong question. In any event, he then says:
In our submission, at page 4, we have set out the ways in which we say what has happened so far does not satisfy minimum requirements. I will not read them out. They are all there at the top of that page. I have referred to them in one way or another. We say: there was not any power to compel disclosure or attendance of witnesses; it was done in private; everybody attended voluntarily; it was informal; they were not backed up by any legal sanction; it could not make findings with legal consequences; it did not have the benefit of counsel, and so on. There are more but I will leave those. That is just a starting place. That is where we set those out if you need to see where minimum requirements are laid out easily.
What I am turning to now, in the hope that it may be of some assistance to you, is the structure of a public inquiry, which we have set out on pages 6 onwards. If I may just elaborate on this, and, as they say in the vernacular, “cut to the chase”, what are the real concerns that you all may have about the possibility of ordering a public inquiry? No doubt they would be: time, expense, resources and so on.
Can I just indicate how the public inquiry can satisfy the need, under the article on which I have already elaborated - I will come to the fruitful aspect of it in a moment - by providing, as it were, a certain mechanism? This is not a prototype or model; it is just intended as a humble suggestion that you might like to take on board because I know you have had many inquiries - I have not been involved with any of the ones here - so you are familiar with how they work.
They work however you want them to work. Therefore, if you were minded to order, or at least recommend, that a public inquiry is set up under the 1921 Act, which we have cited on page 7, that tribunal would, first, as we set out, have “all the powers, rights and privileges as are vested in the High Court”. That is extremely important because that is not what Barron had, if I may just call him that for the moment. No doubt the learned justice could perhaps have come back and asked but he does not appear to have done that. He could have been invested with it but it does not appear that he was so invested. The fact is - as a matter of fact - he did not have these powers, rights and privileges which would attach to the tribunal itself, in other words, one is beginning to see what the protections are.
We would submit, obviously, that the parties, not just the families but any other interested parties, some of whom I have already mentioned, would be represented. Plainly, it would be in public. There would be an automatic record. No doubt the public inquiries here are done by live note but in any event, if you are familiar with it, you would not have the problems of people saying “I did not say that” because it all would be there, the public could see it and it would go onto a website. Plainly, there would be the powers of compulsion, as I have indicated. There would be determinations to be made of responsibility and identification. That might lead to punishment in some cases. The punishment, obviously, does not have to be a criminal punishment. There may be other forms of punishment that are necessary. One only has to think about missing files when one considers what other recourse may have to be had.
I do not think the most important thing has ever been done, in the strict sense of laying it down in advance, although I know there has been advice given. You may want to recommend - I keep saying order but you will not make the order - that any public inquiry that has this structure would have a strict timeframe. Again, I hope I am not speaking out of turn but the public may say, “Well, if you cannot do it in - this is an arbitrary figure - one year, it is probably not worth doing” or “at least, we are not prepared to countenance the money spent on it.”
Where there has already been, as there was in the Mubarek case, a number of different formats in which a certain amount of information has been gleaned, then what they are really saying here - the “firm hand” point put in paragraph 39 - is that the person who orders and establishes the inquiry as well as the panel - I will come back to the panel in a moment - set a timeframe for it that is publicly recognised. One obvious one is a six month lead-up and a year’s worth of hearings.
People may think a longer period is needed and the moment one attempts to put a timeframe on it, there will be complaints. However, in the current climate, there may not be complaints. It focuses the mind wonderfully when one has only a limited time in which to do it. It also has an important repercussion on something I will come to shortly.
Also, one would require either an interim report within that timeframe or require that it be monitored. Thus, for example, a government that sets up an inquiry may wish to have a liaison officer present to ensure that matters are progressing and that there are no undue delays and so on for reasons that could be overcome in another way. As the sub-committee listens it may think the next point is about me, but never mind. Most important of all is that a time limit is put on the lawyers as to how long they can speak. This is done in Strasbourg and elsewhere; people may be surprised to learn that I am very happy to have a time constraint. I have set myself one for today but I may just over-run. If one cannot do it in an hour, do not do it at all.
Sometimes it is not possible, but where one has to conduct tribunals of inquiry and trials for public confidence reasons, one must be able to impose limits. Again, it is arbitrary. The Hutton inquiry did that, and I make no observations about the Hutton inquiry other than that there was an attempt to ensure that those who represented parties were limited in the amount of time they could take. These mechanisms can be brought into play to ensure tight control of an effective investigation. The investigation itself would need resources and person power.
The panel, which I am about to come to, would need its own lawyers in order to present arguments on behalf of the inquiry. That is very common and one would probably have more than one counsel available to do that, plus other lawyers and investigators. Some resources would be needed, but the prime task in the first six months would be to assemble the material already on file. It is the material not on file that one has to come to.
I have made a stab at terms of reference, but I will leave that for the moment. Terms of reference obviously should be simple and drafted broadly. If the committee would like examples of terms of reference I can give them later. They should be simple and wide to enable everything that people are concerned about to be taken into account in terms of the period before the bombings, the bombings themselves and the period after the bombings. It is all very obvious, set in a chronological way.
I would suggest for the sub-committee’s consideration that the panel should comprise more than one person. I know that has been submitted to the sub-committee already in terms of an international panel. I do not intend this to be a reflection either on the Irish or English Judiciary, but it would be better if neither of those two jurisdictions were in the chair of the panel because of the perception that justice be seen to be done, another important principle of natural justice. It is not necessarily that they could not be trusted to do the job because they probably could, but the point is whether the perception is right.
For the sub-committee’s consideration I suggest a panel of three, the chair of which is neither Irish nor English, with the other two members consisting of one English and one Irish person. Whether they are judges, lawyers or representatives of other areas is another matter which I do not need to go into, but I suggest that the person who sits in the chair should come from outside these jurisdictions. An obvious candidate, which would be particularly interesting in the current climate, would be someone from the United States, but there are other jurisdictions in which there is a history of reputable judicial decision making and chairing of tribunals. There are many such countries in the Commonwealth and, as the sub-committee will know, there are two judges from the Commonwealth involved in the Saville inquiry. In addition, there is South Africa, and there are many European judges who might wish to sit in the middle. It is just a proposition.
Although I am not suggesting it should be the test, one of the most important aspects of it all plainly I will bring in at the moment. The sub-committee has suggested that 68,000 documents exist in a room somewhere across the Border. We have obtained letters which contain undertakings from British Government Departments that they will not disappear or destroy the material they have. They have it available to be seen. That is interesting. It has not been seen by the sub-committee or me. However, members have, on a number of occasions, asked the perfectly proper question of whether a public inquiry, if established, will see the material. The answer to that question is, yes, it will. It will overcome the problems described by Mr. Justice Barron in his report and to the sub-committee. Essentially, he has conceded. The words he used in his inquiry, his commission, and in the statement to the sub-committee on 10 December last were that it was “of limited scope.” That observation in his statement plus what he said about the difficulties leads us to believe he has been led a merry dance by the English authorities who have refused to come here and explain their conduct and to explain what is available and to allow people to see it. How does one allow an inquiry, such as the one recommended, to see the material they claim is so sensitive that Mr. Justice Barron could not be trusted to see or pass on? He was not even allowed to quote the letter without first seeking authority to do so. We say that is disgraceful if we are leading towards accountability and transparency, principles that seem to have disappeared here.
This has worked and for reasons which members will understand, I am not in a position to make comments about any case in which I am involved, let alone on the Saville inquiry. This is not a comment on the inquiry, it is merely an indication and description of the procedure used. It is not the monopoly of the Saville inquiry, it has been used in other inquiries. We submit it could happen here. It is straightforward but is restricted plainly from the public point of view. What happens is that, if there is sensitive material which a Government agency does not want placed in the public domain, for a number of obvious reasons such as the identity of an informant or the modus operandi of a Government agency as to how it gets its information or the security services and how it operates - one understands all that as did Mr. Justice Barron but he could not get around it but a public inquiry can get around it - then there is a public interest immunity hearing, PII, in which the arguments for and against the public debate of potential material is discussed. That is what has happened in the public inquiries I am familiar with.
Members may ask how one discusses material one cannot see. Interestingly, one can discuss it in principle. If the party concerned, let us say MI5 or MI6, has material it is not willing to disclose to the public, one argues in principle whether the material it might have could reflect upon other matters - it is easy and straightforward to see how it might reflect here and I will come to that later - and it is then placed before counsel to the inquiry and the inquiry itself but not anyone else. They listen to the submissions on whether it should go public and, normally, if there is a genuine objection, it is heard by the panel. The panel and counsel see it and then take a decision on whether they should disclose it. Often if they think there is a legitimate basis, for example, if the right to life is engaged and they must protect this right, they do not disclose it but give a decision in principle which becomes part of their deliberations. When they come to finally reach a determination, which Mr. Justice Barron could not but an inquiry could, they would be able to refer to and draw upon the pool of material which none of us on this side of the table would have seen but the members would if they were on the panel.
There are reservations about this procedure which have been expressed on many occasions but it is increasingly being used in the English courts. There are many occasions within the criminal arena where there are ex parte hearings when, for example, I would not even know they were happening. Of course, I would know in a public inquiry. The resource or vehicle for enabling a tribunal to deal with this problem that has arisen in this case can be overcome.
So members say, “Well, all right, that is how we could do it. We could look at it. How do we get it in order to look at it?” That is the next point. There is a way of doing this and we say that it gives rise to some interesting cross-Border, we hope, non-problems. We say there are ways and means, as they say in films, of making one speak. The ways and means in this particular example are set out on pages 7 and 8 of our submissions to the sub-committee.
It is interesting that the 1921 Act obviously originally applied not only here, but also in the rest of the United Kingdom so the United Kingdom will be very familiar with this statute. What the statute enables, as well as a further one which is set out there - the English Evidence (Proceedings in Other Jurisdictions) Act 1975 - is that an inquiry here could send out what is sometimes called a commission rogatoire, in other words, letters of request to the British Government. Whereas Barron sent, as the sub-committee has seen, a whole chronology of letters, most of which went unanswered in the sense that they did not provide the material, if it was a formal inquiry with a formal letter of request requiring answers to certain questions, and documents to back up the answers to the certain questions, it places the other Government, in this case the British Government, in an extremely difficult position. First of all, psychologically, never mind the legal obligations of answering the questions or letters of request, the British Government, never mind coming to a committee because it has obviously turned its back on that, will find it much more difficult in a public inquiry, which has powers, to say: “No, we are not even going to answer the questions; we are not going to provide the documentation, we think you need but a summary of it.” The latter is what happened in the Barron case.
Psychologically, politically and diplomatically, the British would find it extremely difficult to say ”We will not answer these letters of request. If they were to do so, in other words, they are prepared to run the gamut of adverse opinion when we are supposed to be working towards a situation in which states co-operate in relation to acts of terrorism, the non-co-operation could be a finding for the panel. In other words, as sometimes happens in criminal cases with somebody staying silent, etc, adverse inferences can be drawn. If somebody stays silent in the face of a commission rogatoire, as I am prepared to call it because that is the usual phrase, then the panel would be entitled to at least take account of it in that it may draw an adverse inference about non-compliance and non-provision. As Mr. Justice Barron states in his report, where he has come across refusal, he is inclined to believe that the refusal is borne out of a self-interest that needs to be protected. In other words, an interest that they do not want to disclose. All of that can be drawn. That is the second level at which it is difficult.
There is a third level which the inquiry may not want to readily want to embark upon - one hopes it does not have to have recourse to that - and we touch upon it on the last page. We would submit that if the British Government refused to co-operate in the face of a letter of request, they themselves could be held to be in breach of the European convention in relation to the very same article, Article 2, because they are not providing information and materials which are necessary for the protection of life or rather the investigation that you are carrying out or would be carrying out. Of course, I cannot predict. It is novel ground but it might provide a basis for judicially reviewing a decision by an English Government agency not to answer the letters of request.
This is where - I am looking at my timeframe, never mind the timeframe I have set for the inquiry - the timeframe set on an inquiry could be important because one of the first functions, I would submit, for counsel to a public inquiry of this kind would be to say, “What do I need that I have not got?” The answer at the top of the league comes “material within the 68,000” - obviously, it is not 68,000 files. It is obvious what it is relevant to.
Mr. Justice Barron told you himself only last week that the key strand in his report - which I personally thought was a key strand in it - is that the English military authorities were claiming that they had locked up the bombers, at least two of them. Who are they? I am not going to mention any names as I am being careful as you have asked me to be. I am sorry. I am diverting slightly for a moment because of the importance of all of this. The point Mr. Justice Barron makes to you is that they are known. Last week he admitted to you that he had made an assumption that they were the names of people that had been provided to the RUC via another route, through the officer called Kelly and Browne and so on. They may be, they may not, but what he was not able to say to you was, “I do not know whether the names of the people that the British claim they had were the same as the names that came through the RUC.”
What is the importance of this? Underneath it, the British were claiming to the Irish authorities, including the Taoiseach, that it was based on good intelligence, so what do you need? “Well, what was that good intelligence?”“Very good intelligence,” it is said in the meeting from which we have a quotation in the report. What is this “very good intelligence”? Do you know? I do not know. We do not even know - I do not know whether you do - what is in all these letters that Mr. Justice Barron sent off to the British in order to try to extract the material. We do not know the questions he asked. We know little snippets here and there. You see immediately how, in practice, the exercise which has been undertaken right at the core of the perpetration of this has just not satisfied. That good intelligence must be possible to identify within the documentation.
The reason the good intelligence is important is that you not only get the names of the possible perpetrators, you get a chain of causation which goes back through, “How did they get the good information? Who knew these perpetrators? Did they have the information before the bombs even went off?” I know they are denying this but are we happy to accept denials, particularly in this day and age, from politicians? Are we necessarily going to accept this just at that level without seeing the documentation, because there are misunderstandings, as has been readily disclosed in another arena recently? There are misunderstandings. People do not necessarily understand all the context, which was Mr. Justice Barron’s point.
Before I return to the question of getting answers in the timeframe, I add a footnote. Who was the person who was receiving this message? The Taoiseach, Liam Cosgrave, received that information. There was good intelligence that two people at least had been arrested. I merely asked the question: Has Liam Cosgrave provided any material for the Barron commission? I do not think so. When he was asked in the “Hidden Hand” documentary about this point, referred to at the back of the Barron report, it is interesting that he said nothing. The report stated on page 47: “We asked former Irish Prime Minister Cosgrave what pressure he put on the British authorities to trace the bombers, and if he knew his police force had a list of suspects. He declined to answer.” I am not making any imputation, but he is someone else who may have had material observations to make on the missing documentation.
There is a long chain, but one then gets into the question of collusion, which must be carefully defined. The Minister for Justice, Equality and Law Reform stated that there may not necessarily have been collusion at the very top - but it is not collusion at all if one has members of the British State such as UDR and RUC members taking part in the preparation of the bombs on the farm. That is not collusion, but involvement and perpetration. The conclusion Mr. Justice Barron comes to is remarkable, and cannot be left hanging in the air. That is conclusion number 6, page 287: “It is likely that the farm of James Mitchell [at Glenanne] played a significant part in the preparation for the attacks. It is also likely that members of the UDR and RUC either participated in or were aware of those preparations.” This needs further investigation, because Mr. Justice Barron has put it very tentatively, like many of his conclusions, and I appreciate the sub-committee may want to address the question of the standard of proof; but the Justice has put his conclusion as likely. If it is likely that the UDR and RUC either participated or were aware of the bomb preparation, the British State had advance notice at least about the bombs being prepared and, one suspects, would have known more, although not necessarily at the higher echelons. That is not the question - the article does not say it is only people at the top; it does not make that kind of distinction.
A request to the British Government, which would lead to an audit trail back not only to those responsible on the front line, but to those on the back row responsible for what went on, must therefore now go immediately from any public inquiry set up, and must have a timeframe. The request would be framed in a simple manner to the effect that because of our own constraints, we have only six months. The simple question would be: “Are you prepared to let us see the originals of all the documents you have so far refused?” It would not take six months to answer that question. One can give the British authorities a time in which to answer, and if they do not do so, one can begin judicial proceedings in England in order to challenge their decision.
Those are the mechanics of how the procedure can work - something that has not occurred yet. There has been no form of moral, let alone legal, compulsion on producing the goods, so to speak. In terms of the need to satisfy the convention, and the mechanics of setting one up, it is all perfectly possible and is not going to lead to some bottomless pit either in terms of finances or other legal resources, but will restore public confidence in the mechanism of providing justice for those denied it for so long.
The committee touched on the standard of proof, and this is the last procedural matter I will deal with. I am not claiming expertise in Irish inquiries, and what I say pertains to English inquiries, but standards of proof must normally be set by an inquiry itself. I trust I am giving a summary of Mr. Justice Barron’s reaction when I say that because of people’s reputations and being fair to people and so on, he felt he would draw only reasonable inferences. That, if I may say so, is a very reasonable approach. However, for the purposes of an inquiry where determinations will be made, what tends to happen, and I can only suggest this is what tends to happen, is that where there is a criminal allegation, the inquiry would want to have satisfaction to a criminal standard. You may think that is fair to the person against whom the allegation is made.
On other matters, however, if the documentation is missing because it has been deliberately destroyed, that may involve a criminal allegation but if it does not involve a criminal allegation, usually the civil standard of proof is adhered to, namely, on the balance of probabilities. Although I have seen the term “a preponderance of evidence”, that is a rather loose term. The phrase that is usually understood, “more likely than not”, incorporates the standard that might be applicable.
What is important, and has not always happened, is that the inquiry would have to make clear at the beginning that is its standard, so everybody knew that. The problem in some inquiries is that they have not announced it until the end, and then people said, “If I knew you were going to go to that standard I would have made some more questions or a few more inquiries”. Those are the substantive and procedural rights under Article 2. That is the mechanism, how it could work, public interest immunity, time and efficiency and so on of the tribunal.
If I may touch upon - I can develop it in answer to questions - the other area, namely, the merits and looking at where one can go from here. I have already touched on one particular area but it is one that is important for the committee’s consideration. It seems that at the moment there are a number of unresolved problems as a result of Barron, unresolved in the sense that the public would need to believe they were capable of resolution within a public inquiry.
I will leave aside procedural problems that have arisen but it appears to me that there are three areas; I will not deal with all three but just a couple of them. There is the forensic science area and the delays that were occasioned in the first place, the analysis of the photographs, the opinion of Nigel Wylde and so on. It is clear there is a major division of opinion between Nigel Wylde and some other experts and Mr. Justice Barron, who was fair enough to concede to the committee that he was not an expert in this field.
What would happen in a public inquiry, as has happened, is that one has recourse to the best experts available in the field to allow one to come not just to some kind of reasonable conclusion but one on the balance of probabilities that it was ANFO that was only available to the PIRA and therefore came from captured stocks and so on. I do not go into all of that but that is an area which we say has not been properly resolved yet. Mr. Justice Barron has made a formidable effort at doing it but it could not be expected in the time that he would be able to do that whereas if the facilities are available to do it, it is plainly a very important issue.
The question that arises in terms of the British, if I may put it that way, response to information is to be seen in the report at page 274 where Mr. Justice Barron makes certain assumptions about the information and the two persons, to which I have already referred. However, that is just where he makes the assumptions. What has happened here refers back to pages 211 and 212 where the meeting I have referred to is set out in a little detail. This is the meeting which took place on 1 June and then meetings with the Taoiseach thereafter. That is where the points I have already made come from, namely, very good intelligence and at least two people, but as I have already indicated, Mr. Justice Barron in a sense allied the two. It is an assumption he has made that they are talking about the same people. However, it is plain that, effectively, not much has been obtained and this is why we say there is much to obtain. I have the evidence from Mr. Justice Barron himself on this particular topic. It is important to see what he actually said to the sub-committee about this. I have it in hard copy form and it is on page 5. He indicates the two strands that I have already mentioned and also the pieces of information in the Garda reports and so on. He states on page 6 of the version I have:
On the following page 11, he said this, which is pretty remarkable: “We got a lot of information then. Frankly, I do not think we really got any information in the 1974 period.” What has been going on in the correspondence between the British Government and Mr. Justice Barron? Effectively, we say he has been provided with nothing, either in the summary form, let alone the original documents. It is in that context that he goes on to deal with why it was necessary for him to see original documents. The members may have had experience - I certainly have - that when one begins to ask for original documents, one finds all sorts of things that have been written in different ink, added notes, things on the back of a document where the front has only been photocopied and so on.
Originals are very important as well as seeing the context in which that original has been produced. To merely be beholden to the British saying, “We tell you there is nothing”, is far from acceptable in terms of winning public confidence. It is perfectly clear, in the way he spells it out in his report from time to time, that he believes, as do others, that there is much more that he should have been provided with that would have assisted him in his conclusions. Effectively, he summarised the whole of that in page 3 of the statement he made to the sub-committee.
Turning from the material that is not missing, but is available and has not been provided, to another of the main headings, in other words, forensic evidence and material that the British authorities may have - remembering the perpetrators came from and the planning and the preparation all took place within the British jurisdiction. Plainly, documentation they have should be seen and assessed by a public tribunal. There are many missing documents in so far as the Irish Government is concerned. The sub-committee knows what they are but they are all summarised on pages 12 and 13 of the report. What is remarkable, and the sub-committee put it to Mr. Justice Barron, is that security files at the Garda headquarters and similar files in relation to the Department of Justice, Equality and Law Reform have gone missing. One member - please forgive me, I cannot remember which one - asked was this a coincidence. Of course, it could be a coincidence. This form of inquiry, in other words, what exactly has happened here, is extremely important to get to the bottom of it because if it is purely an accident and purely a coincidence, then it is as Mr. O’Neill has put it - he has not read it out today - if the documents were missing when the Irish Government was challenging the families’ request for disclosure, why did nobody say at the time: “Sorry, do not worry about the action, we do not have the files anyway?” That is his point.
There is a question here and the questions have not been asked. Mr. Justice Barron effectively admits he has not asked the questions because I think he thinks it was not really part of his necessary remit, which was to pursue what I might call an audit trail. The audit trail is important in order, as the cases say on Article 2, to allay public fears if there is potential malpractice.
The questions you ask - I am sorry, I am using a hard copy - come at page 38, so it is very recent. If you read the report, you will discover that there is no explanation ever given. Mr. Justice Barron is asked and he says, “All I was told was they were not available, they cannot find them.” I think if you were involved in something, to be told that would not be an acceptable answer when it is central. He has already accepted, because you have asked the question on the previous page, page 38, that it is “an important file, of course”. Of course, it is an important file because we are back to whether at least the two interned by the British on good intelligence were the same as people who had information through the RUC, Garda, cross-Border contacts and all the rest of it. Were they the same? What was the intelligence? What were the connections etc?
The security assessments on the intelligence done by the Garda and the Department of Justice, Equality and Law Reform would all be in those files. What Mr. Justice Barron is saying is they are not there but they must have been. One of the obvious questions to be asked in a public inquiry of the people who still exist - here Mr. Justice Barron agreed with you in that he had not done this, he had not got them all in, all the civil servants who have worked in the Department - is, first of all, what is the system? When were they last seen? Somebody must know. When were they last seen and where were they when the action was being taken by the relatives for disclosure? Somebody must know. It is not very long ago. We are not dealing with 30 years ago. We are dealing within the last decade, effectively. Where were these files?
The questions are obvious. A schoolboy could, as it were, draft the questions. The answers may be important in determining whether it is just a coincidence that the relevant files are missing, which would have provided a partnership with all the material that is, we assume, being kept safely, as we have been told, by the British authorities. The admissions he has made, effectively, about the two sets of missing files - the missing Garda and Department of Justice, Equality and Law Reform files - have not been satisfactorily investigated by him, although he says, as far as the Garda is concerned, he is sure there would have been a detective sergeant who would have been in charge of it all and so on.
It is remarkable. You may think that they are missing - one cannot go further than that at the moment. In other words, it is a negative point until you have got the material that is available or at least got a refusal which is a finding in itself - hopefully it would not be a refusal - and you have got an explanation, in other words, an explanation here would be on the civil burden of proof, more likely than not. As Ed said earlier today, although not in public, we have had public statements recently indicating - I think Mr. Justice Keating is the citation on 29 December - that there has been a suggestion of deliberate destruction here.
Mr. Mansfield: Yes, that is right. I do not know whether there is truth in that or not, or what the basis is for the suggestion that he makes but, undoubtedly, even without the suggestion being made by someone such as himself, it is an underlying question regarding these files, since they are so central to any investigation, as to why they are not there to be seen. These are two sides of the coin, the material that is available and the material that is not. Decisions must be taken about those sets. None of that has happened to date. I have gone rather rapidly in order not to overrun by too much. Those are the submissions we make. Obviously, I will be very happy to answer any questions arising out of them.
Mr. McGonigal: Chairman and members of the committee, I will follow Mr. Mansfield very briefly. He has comprehensively dealt with all the issues which arise in our submissions. Therefore, in a sense, I wonder whether I might say anything at this stage. Unfortunately, or otherwise, I have the experience of having appeared in a number of the tribunals which have been set up by the Dáil in Ireland and, therefore, feel there is something of use which I might be able to say from that point of view.
Before going into that, there is one matter of fact which I would like to draw to your attention, that is, to refer you to a matter which has not come to your attention, that is Question Time in the Dáil on 3 December 1974. It is a matter which only came to hand very late. It relates to Mr. Cooney, the then Minister for Justice. He was being asked by Mr. Andrews the number of times he met with the UDA, the date of his most recent meeting, the nature of the talks and the outcome. The relevant excerpt reads:
We draw that to your attention as a fact, which I do not think has been before you to date. Its significance relates to the meetings between the British Prime Minister and the Taoiseach in September and November. It is a matter which we put before you for you to take up, either with Mr. Cooney or the Deputy. Some useful information may be obtained if it is considered appropriate or necessary.
Apart from that, Mr. Mansfield has dealt with the legal imperative arising from Article 2 of the European Convention on Human Rights. I would like to draw your attention to the position as it existed prior to that, and the basis upon which public inquiries have been set up in this country. The best place to identify that is a quotation from the late Chief Justice Hamilton in Haughey v. Moriarty, which is reported in 1999, volume 3 Irish Reports, commencing on page 1. The relevant quotation to which I draw your attention is at page 53. The Chief Justice stated, “That is so in the case of the tribunal now under consideration but it is by no means the only purpose for which a tribunal may be established.” In the report of the Royal Commission of Tribunals of Inquiry 1966 in the United Kingdom under the chairmanship of Lord Justice Salman, the passage that appears at paragraph 27 states that the exceptional inquisitorial powers conferred upon a tribunal of inquiry under the Act of 1921 necessarily expose the ordinary citizen to the risk of having aspects of his private life uncovered which would otherwise remain private and to the risk of having baseless allegations made against him. This may cause distress and injury to reputation. For these reasons we are strongly of the opinion that the inquisitorial machinery set up under the Act of 1921 should never be used for matters of local or minor public importance but always be confined to matters of vital public importance concerning which there is something in the nature of a nation-wide crisis of confidence.
In such cases, it is considered that no other method of investigation would be adequate. Again in paragraph 28, it is stated that the inquisitorial procedure is alien to the concept of justice generally accepted in the United Kingdom. There are, however, exceptional cases in which such procedures must be used to preserve the purity and integrity of public life without which a successful democracy is impossible. It is essential that on the very rare occasions when crises of public confidence occur, the evil, if it exists, shall be exposed so that it may be rooted out, or if it does not exist, the public shall be satisfied that in reality there is no substance in the prevalent rumours and suspicions by which they have been disturbed. The report stated that the commission was satisfied that this would be difficult, if not impossible, without public investigation by an inquisitorial tribunal possessing the powers conferred by the Act of 1921. Lord Justice Salman continued that the essential purpose for which a tribunal is established under the Act of 1921 is to ascertain the facts as to the matters of urgent public importance which it is to inquire into and report those findings to Parliament or the relevant Minister.
I draw your attention to that, Mr. Chairman and members of the committee, because it is sometimes overlooked when one has regard to the length of time the tribunals take and the cost the tribunals can cause. It is sometimes overlooked that the purpose for which you set up the inquiry initially, where a crisis of confidence exists, where rumour and allegations are being made, where a decision is taken by the Dáil that these matters must be inquired into, is to satisfy the public need to resolve the crisis of confidence.
In this particular case, Mr. O’Neill has said to you this morning that he wants closure, that he wants to get truth and justice. Rhetorically, is it not extraordinary that a person whose relatives were killed 30 years ago is looking for closure, is looking for truth and justice? What aspect of our democracy, what aspect of our society has failed, in the sense that he and the other relatives have been unable to bury the dead for once and for all and are unable to find out the truth and the justice of what happened on 17 May 1974? With great respect to you, Mr. Chairman, and to this committee, we appreciate the fact that you will give us a fair hearing, but a fair hearing, if it does not lead to truth and justice, is totally inadequate. These people want truth and justice. They are entitled to truth and justice and it is within your power to give the means whereby that can be achieved.
Mr. Mansfield has dealt fairly comprehensively with the structure and way in which a tribunal could be set up. We in this country have had numerous instances of public inquiries and it is a matter for you, on reflection, to determine when you look at those public inquiries whether they achieved the purpose for which they were set up. Did they lance the boil that caused the crisis of confidence? Did they answer the questions that had arisen? Did they deal with or resolve the allegations and rumours that were made on the various occasions? The answers to those questions in some part is “Yes” and may in some part be “No”. Whether the answers are “Yes” or “No”, they are not a reason for refusing a public inquiry in a situation where it would have enormous merit. The issues Mr. Mansfield touched upon, the questions he identified from reading the Barron report, the questions he raised having looked at some of the evidence that is available and the questions that arise in regard to the material that is not available can only be answered and must be answered by a public inquiry.
In so far as such a public inquiry is concerned, from reviewing some of the tribunals which have been set up, the first and most important matter in my submission is that the terms of reference are crucial to a public inquiry. They must be clear and focused. The wider the terms of reference, the longer the tribunal will take. The clearer and more focused the terms of reference, the shorter the time the inquiry will take.
A second item that is important is the composition of the inquiry. It is a matter for consideration whether, in the circumstances that exist today, it would be appropriate to have a committee of inquiry headed by an international judge. There is merit and substance in the argument put forward by Mr. Mansfield in regard to the aspect of justice being seen to be done. We must bear in mind that one of the major issues that could arise within this inquiry is that of obtaining documentation. The authority of an international chairman supported by an Irish judge, possibly a Northern Ireland or English judge, sends out a message to those from whom one is seeking the documentation. First, it is clear that the documentation is relevant and pertinent to the important task which has been undertaken. Second, and more importantly, those documents will be treated with the respect that the countries sending them expect. That is an important consideration in regard to whether the British Government and-or the Northern Ireland authorities would consider sending documentation across which they might otherwise refuse to do if an inquiry did not have the authority and standing which they would want it to have. Those are two items that, to my way of thinking, are important in regard to the setting up of an inquiry.
The third item is a matter for the tribunal and is the length of time taken in preparing or investigating the evidence that will subsequently be produced in public hearings. The difficulty about investigations prior to public hearings is that on occasions there is pressure on an inquiry to get into public hearings too quickly, partly to satisfy the politicians and partly to satisfy the public, but basically to show that something is being done. In reality, the experience of all tribunals has been that the longer they take in the investigatory or preparatory stage, the shorter the inquiry and the chances of shortening the public hearings will be. Once the material has been sent and considered by the parties, it enables them to reduce the issues and narrow the questions that have to be asked. If one tries to put a limit on an inquiry, there is a danger one will frustrate or interfere with the obtaining of the very truth one is trying to achieve. By way of example, part of the terms of reference of the Moriarty tribunal, which the sub-committee will recollect was set up on 17 September 1997, was that the chairman should report within three months to indicate how things were going and the likely duration of that inquiry. In his report to the Dáil at that time Mr. Justice Moriarty, the chairman, indicated that he anticipated that his inquiry would be finished in 1998. You are aware that his inquiry is not yet finished. The reason is that the tribunal took turns which were unexpected and that evidence which came to it appeared to be material to the terms of reference which it had been asked to investigate and therefore what was perceived initially as going to be a short inquiry has turned into a marathon of sorts.
If you are thinking in terms of having a time stricture, the time stricuture should be co-ordinated with the monitoring which Mr. Mansfield referred to. The monitoring is an excellent idea. One of the features of an inquiry such as the Moriarty or Mahon-Flood tribunal is the fact that once you have set it up there appears to be no accountability backwards. Therefore, the Dáil or persons who set up the inquiry have no idea or no handle on why the tribunal is taking so long, on how much longer it is going to take and whether the matters it is now inquiring into remain matters which the Dáil considers necessary to be inquired into. Therefore, if you introduce a monitoring system which does not interfere with the running of the tribunal but at the same time keeps you informed as to the way in which the tribunal is functioning and the matters which it is investigating, you will be able, if necessary, to direct or stop or interfere with it, in an appropriate case only. That is something which I think is worth considering in relation to the setting up of any future inquiries.
The only other matter that I think is worth mentioning is in relation to a point dealt with by Mr. Mansfield, that is, the obtaining of evidence from England or Northern Ireland. It is a fact that the McCracken tribunal availed of letters rogatory to obtain evidence in England from banks. It obtained both oral evidence and documentary evidence on foot of an order which it obtained from the English courts. Therefore, we have a precedent whereby an inquiry from Dublin has been able to present letters to the courts in England, and they have made an order granting permission for that material and evidence to be obtained.
In a sense, there is no reason we should not be able to obtain the material in England, Northern Ireland or wherever it may be. That must be of encouragement to this committee because the first thing an inquiry will do, if it is set up to deal with the matters of 17 May 1974, is write the letters that Mr. Mansfield has spoken about. The issue of the documents, if there is to be an issue, is the one which can delay or protract the proceedings. The sooner that is started, the quicker the answer is obtained and the quicker proceedings, if they are necessary, can be commenced and the force put on to obtain those documents.
It is our belief that, in fact, if the right inquiry with the right status is set up, the British Government and the Northern Ireland authorities will in all probability, subject to security considerations, send the documentation to the inquiry. It is not a foregone conclusion. It must be borne in mind that there could be privilege issues and security issues but if an inquiry is set up with the right status, with the right authority, it is a probability that those documents will be forthcoming.
In reality, there is nothing in the Tribunals of Inquiry (Evidence) Act 1921 which will prevent a successful inquiry being carried out into the events of 17 May 1974. There is, therefore, no reason in law as to why such an inquiry should not be set up. Mr. Mansfield has directed your attention to Article 2 of the European Convention on Human Rights, that is, the legal imperative that an investigation must be carried out. We are saying the only way to do that satisfactorily is by the 1921 Act. In reality, if truth and justice are to be obtained, then you must give an inquiry to the next of kin.
Deputy P. McGrath: Like my colleagues, I too welcome Mr. O’Neill and his legal team. We have had a long session this morning. It was a long and intricate discourse on their behalf outlining the legal imperatives for a public inquiry and so on. A number of queries arise in what has been said.
I note that Mr. Mansfield stated we should look particularly at the terms of reference which say we should assess whether it would be “required or fruitful”. I note that he dwelt at length on whether it would be required but he seemed not to put a lot of store on whether it would be fruitful. In fact, he almost implied that it might not be fruitful, that the process was more important than whether one got results. Noting what Mr. Justice Barron stated to us a couple of weeks ago, that as far as he was concerned a public inquiry would not get any better evidence, research or co-operation from any of the people with whom he spoke as distinct from what he got, how does Mr. Mansfield tie up what Mr. Justice Barron was saying or does it confirm what I thought Mr. Mansfield stated, that he did not think a further inquiry would be fruitful?
Mr. Mansfield: I shall answer that question specifically. May I correct the Deputy? It may have been my fault entirely. I did not intend to communicate any impression that it would not be fruitful. I was emphasising the legal imperative - I will not go over that again.
In terms of fruitfulness, quite the reverse is the case. I am suggesting that in three areas there are major concerns held by the families and the public. Let us take forensic science, for example. Mr. Justice Barron was not suggesting that there was not more to be investigated. He was saying, “I am not an expert in this field. I have come to a conclusion.” He had observations about Nigel Wylde’s change of opinion - however, Nigel Wylde does not stand alone - and therefore there is a resolution of a very important position, namely, what was involved - admittedly a lot has been destroyed - in the craters, in the bombed cars and so on in order to make an assessment. I appreciate that he has made one assessment and that Nigel Wylde has made a completely opposite one. They are completely opposed. No one is suggesting that this cannot be further resolved by involving experts on both sides, or maybe there is only one side at the end of the day.
There is also a further question here which has to be asked and answered. It has not been answered. My suggestion is, rather like the missing files, that fruit can be borne out of this. In 1974 one may or may not have had all the resources but there is a matter of common sense here. Forensic science is an area I have been particularly interested in. The moment you recover samples, hopefully without contamination, you have them examined immediately. There was an 11 day delay, which is regarded as a flaw in the investigation but which has never been satisfactorily explained. Can it be said that that is not an area which can be further investigated just to discover why there was this delay? Leaving aside the gathering of expertise on both sides, which involved, for example, John Lloyd, a very well known Home Office expert, that is a whole area which can bear fruit in terms of a resolution. The resolution by Mr. Justice Barron is an opinion he has come to but we say it is an opinion that needs to be investigated further. It certainly is not accepted by Mr. Wylde and others. That is one area.
Moving to a second area, I am saying that documentation held by the British is fruitful is top of the league. Would you turn to page 17 of Mr. Justice Barron’s report? He never said that there was nothing more to be gained here. He was saying, “I don’t know because I haven’t seen it.” What he is saying on page 17 is extremely important: “In relation to the RUC there is no firm statement denying the existence of any intelligence reports containing any such knowledge”. This relates to both collusion and prior warnings. This is what he discerns from the correspondence, not the documents. This is a summary provided by the British. There is no firm statement denying the existence of such intelligence. In other words, maybe there is.
Take another sentence: “The letter made it clear there was nothing in intelligence or other records to corroborate suspicions of collusion by any members of the RUC”. However, do the documents disclose that there were suspicions? One has to read very carefully between the lines of summaries provided in this way. He goes on to say: “From consideration of relevant material the RUC has concluded that it had no intelligence before the bombings which could have been used to prevent them.” Read it carefully. That does not mean to say they did not have intelligence about the bombings. We have been there before. Because of the time lapse, who says it might not have prevented the bombings? These are all questions to be asked. What I am saying, in answering the question, is that it can be fruitful. There is material here——
Deputy P. McGrath: Is not the key to all of this the fact that if we are going to have a further inquiry, there will have to be co-operation and access to documents held in Northern Ireland and Britain? If that is the case, I welcome you to the real world because only last week we got a letter from the Secretary of State for Northern Ireland, Paul Murphy. I think it was said in paragraph 7 of that document to the effect that “We wouldn’t even let Mr. Justice Barron see these documents because we would be afraid that he would breach confidentiality.” How then can you come along and say to us in a credible manner that the British, having said all that, are going to roll it all back?
You also have to bear in mind that the Taoiseach has had numerous discussions with the British Prime Minister seeking co-operation on the Barron inquiry. As you said yourself, all he drew was a blank. It was virtually a blank; he got a summary. You yourself criticised the summary documents. How then do you feel we are going to make that leap from the shutters being brought down to total openness and co-operation? I am asking you to help us to get to that stage.
Mr. Mansfield: I will do. I had a reason for going through the legal imperative. The Deputy says, “Welcome to the real world.” I want to say to those politicians - I do not mean Deputy McGrath - who are being obstructive, and I suggest they are being obstructive and I think the sub-committee agrees with me on that, “Welcome, you politicians who are being obstructive, to the real legal world in which we are now living.” The answer to the Deputy’s question is that I would propose this because of the legal imperative under the procedural aspects but I am also proposing it because the procedures that can now be put in place under the tribunals Act and also the letters of request already gone into which it has been indicated were productive in another inquiry——
Mr. Mansfield: I have already referred to the paraphernalia put in place by a public inquiry. What happened, as I can demonstrate, is that material was objected to in the first instance. That happened in the Saville inquiry and I have been involved in others which have experienced similar problems. Sensitive material was also presented to the Lawrence inquiry. Governments and Departments regularly feel they cannot trust people with sensitive information and they do not show it and an argument arises. It is not the tribunal they do not trust. Is the sub-committee suggesting that a public inquiry chaired by a foreign judiciary will not be provided with the information? The authorities are saying they will not provide it because they can get away with it. They know no power exists to make them do so and also know that if they do not turn up that fact might feature in one line in the British press or may get no publicity at all. There is no moral or legal obligation on them to do so. They can tread all over this but what they cannot do is tread over, or turn their backs - whatever analogy one wants to use - on a properly established inquiry. That is the importance of letters of request regardless of whether they relate to a bank. When a letter of request is sent and they, in an English court, refuse the information, and when the procedure I have already outlined forces their hand, I do not think they will want a type of justiciable cause whereby all this is floated in the English jurisdiction. In the real legal world in which we now live, they do not want this matter litigated in that way because they would be in breach of the human rights Acts.
My suspicion is, and it is only a suspicion, that in the real world they will co-operate. They will hand over the material and the panel will view it. I am not living in an unreal world, they are. Up to now, if I may say so, you have been living in an unreal world in expecting the British authorities to do anything unless their backs were against the wire. History has shown that it will not do anything unless its back is against the wire.
Deputy P. McGrath: Mr. Mansfield quoted extensively from the document dated 16 October 2003. I know that is only four months ago, but has there been a public inquiry following that judgment in the House of Lords?
Mr. Mansfield: Yes. I know Mr. Blunkett and the courts are not getting on but it is unlikely he will go against the very clear ruling of the House of Lords that there should be one because that would result in serious repercussions.
Deputy P. McGrath: How then do you view what will happen in the future? The case in question relates to a person murdered in prison. It is a sad case for the family involved and it will, as you say, have all sorts of repercussions. There is a case to be made for due process. If one extrapolates that a little further, are we to have public inquiries into endless cases that might arise if that case is granted, as Mr. Mansfield says, by way of Government decision?
A person convicted of murder in the Irish courts last week had a previous conviction for manslaughter. Should we have an inquiry into why he was released and why this was allowed to happen? Let us consider incidents where people die in hospitals. Should we have public inquiries to discover what happened in such cases? Is not the panacea to which Mr. Mansfield is referring going to leave us in a situation where we will require a plethora of public inquiries into numerous and serious events?
Mr. Mansfield: The answer is “No”. In the Mubarek case, if you read it carefully, what they are saying precisely guards against such a situation. First, it is only in cases where there is a threat to life. In many of the cases, and I hope it is fair to say here as well, they will be properly investigated with an element of public accountability. The Deputy raises his eyebrows and maybe I am wrong about this. However, let us assume that it is right for the majority. There will be cases, it will be a minority, where there will be a question over whether the basic minimum requirements of proper investigation - all the ones that are in Mubarek - prompt effective public scrutiny, involvement of the next of kin and so on. It may seem, of course, if you have more than one a year that it is a steady stream. However, the whole point about the Article 2 provisions is that for the first time ever it is not going to open floodgates, it is going to open proper scrutiny and it is going to hold people to account. I refer here to police forces, Government Departments and so on, which, if I may say so - not meaning the Irish particularly any more than the English - have got away with it for too long.
Hopefully you are not going to get cases like this every week. However, even where you have a systemic fault - it may be in a hospital situation or a prison situation - then if there has not been a proper investigation of that which meets the requirements, then you are going to have to have a public inquiry. Without the convention being interpreted in this way, the right to life means nothing. That is really what they are saying. The answer to your question is “No”, you will not get floodgates and it will not be anarchy. You will not have loads of them, but you may have more than you have at the moment, unless it provides a very suitable deterrent to the authorities in the first place.
Let us take the Feltham case, let us hope that the authorities now will begin to realise that if they go on perpetrating a system, the CRE, I think, had 26 recommendations for change, and do not implement the changes there is a risk that the public will say, effectively, “Are we going to have to have public inquiries all the time because you are not doing your job in the first place?”, and then a few heads might roll. That is the determination which leads to the punishment aspect. It is a rather long answer.
Deputy P. McGrath: I thank Mr. Mansfield for his reply. I will rephrase the question for Mr. McGonigal in respect of the McCracken tribunal being able to obtain documentation, which related to financial transactions, etc., and the banks in Britain but which did not relate to security information as such. Would there be a different approach and response in the courts if a claim were to be lodged to see documentation relating to security operations in the North, etc.? Is it not a case of chalk and cheese?
Mr. McGonigal: It is chalk and cheese in one sense but at the same time you must bear in mind that the 1921 Act emanated from Westminster in the first place and was common to both Ireland and England at one stage. The importance of the precedent is that it is an application to the English court to get documents relevant to a public inquiry being carried out in Dublin. The Chief Master of the Queen’s Bench Division made the order directing the documents and the evidence to be made available. That is the first step. Obviously there is a danger of an issue in relation to security, privilege and that kind of thing. However, that is an issue beyond the case which was taken by McCracken, which may arise. The importance of it and the strength of what Mr. Mansfield says is that the situation has arisen in the Saville inquiry in a different way. There they had documents which they required and they found a way of making them available to the public inquiry and the issues of privilege and security were dealt with. That is why we are saying to you that if we set up an inquiry which has the status, strength and backing and which presents the argument in the way it must be presented, those documents will be forthcoming. That will happen either as a result of co-operation between the tribunal and the body from which it seeks the documents or, alternatively, on foot of a court order made in England. The strength of the argument is that you will be relying on the English courts to make available those documents to a public inquiry set up under the tribunals of inquiry Acts.
Mr. McGonigal: The security and privilege side of it is untested. As against that, on foot of Mr. Justice McCracken’s order in England, he then went to the Cayman Islands to make a similar application and lost in the High Court there. He did not appeal for different reasons. It does not mean the application cannot be made. It means the application in the first instance may well be granted and the issue of security or privilege can be dealt with after that.
Deputy P. McGrath: Mr. McGonigal has told the sub-committee that it was within our power to grant justice to his clients. We should clarify that is not the case. We are a sub-committee of a committee and we will prepare our report within our terms of reference.
Mr. McGonigal: I stand corrected, but I have absolutely no doubt, Deputy McGrath and the rest of the committee, that your word will carry great weight. You may not produce the order, but you will certainly produce the persuasion.
Deputy P. Power: I thank Mr. O’Neill and his legal team for coming here. Mr. O’Neill’s account was like the account he provided in “Hidden Hand”. It was very inspirational. While we do not wish to go into the area of sympathy, Mr. O’Neill’s commitment to his cause and the cause of the Bergin and O’Brien families has been an inspiration to the sub-committee. We must now grapple with very difficult issues. Mr. O’Neill said that in a public inquiry hard questions would have to be asked and he will forgive me if we must ask them of his legal team. In case the contrary opinion is formed, the sub-committee has not formed any opinion one way or the other. In order to make our determinations and conclusions, we must ask the hard questions. That should not be misinterpreted as demonstrative of a predisposition for or against a public inquiry.
My first question is asked jointly of Mr. Mansfield and Mr. McGonigal. I took careful written notes of what both men said and I wish them to explain a discrepancy. Mr. McGonigal said that the wider the terms of reference, the longer an inquiry would take, which is something it was very important to avoid. Mr. Mansfield said it was extremely important that the terms of reference should be drafted broadly. On the one hand, one of the advocates says we need narrow terms of reference while another says they should be broad. As we have to decide on these issues, can that be reconciled for us?
Mr. Mansfield: They are reconcilable. We both agree they have to be in clear terms and not too complicated. For example, you do not want terms of reference which outline each aspect of what must be looked at right down to missing files and so on. You want terms of reference which are framed in terms that allow the panel to inquire into circumstances that existed before the bombings, so that it is focused. You combine the two. In other words, the parameters of time have to be wide, otherwise there is no point in doing it. That is the problem with Mubarek. You pick off an issue here and there and you fail to look at the broader tapestry. That is not inconsistent with focusing on where the broader tapestry is to be drawn. Plainly it involves the circumstances prevailing before the bombing and leading up to it. One would have to look at those because one of the issues needing scrutiny is prior information and intelligence. One would then want to look at the bombing itself, which might not take very long in terms of the information available. Next comes the question of the circumstances of material that arises since the bombing - that is the phrase I would use - being culled from the Saville and other inquiries, such as the Lawrence inquiry. It enables the panel to look in a focused way at the issues regarding information that has since come to light. If one restricted it to the police investigation, that would plainly not be enough, because matters have come to light since then, right up to today, including what was produced in the question relating to Mr. Cooney.
One must be careful therefore not to restrict an inquiry in such a way as to preclude obvious areas being looked at. That has often been the problem in the past. I agree it must be focused within those parameters but think the two can be conjoined.
Deputy P. Power: I hope Mr. Mansfield accepts that we have a major difficulty here. We had a tribunal which had broad terms of reference and seemed to go on forever. That undermined the public trust and confidence in the entire system, an issue of which we spoke a good deal today. That is a major consideration for us.
Mr. Mansfield placed much emphasis on the European Convention on Human Rights and based almost his entire argument on it. We are very familiar with the convention because the relevant legislation is passed through this committee and we know a lot about it. We are certainly familiar with the Mubarek case, more properly termed the Amin case, and the supposed obligation to investigate to certain minimum requirements and to carry out so-called effective investigations.
Mr. Mansfield quoted extensively from the Mubarek case, in particular paragraph 31 on page 16. He explained why the investigation must be effective and have minimum requirements. However, the words he failed to include were “so far as possible”. Having quoted three times from the paragraph in question, he glided over those words.
This sub-committee has to deal with what is possible and not possible. We have numerous submissions before us, most notably from Mr. Justice Barron, who spent four years investigating the matter, and who stated in most unequivocal terms that it would be impossible to find the level of truth and justice, convictions and so forth for which people are looking. They are not my words but those of Mr. Justice Barron. I have formed no opinion as to what direction we may take from there. Mr. Mansfield did not address the specific issue which goes to the kernel of that. I do not know who drafted the submission prepared by Mr. Mansfield’s legal team, but Article 40.3 of the Constitution was quoted, which obliges this State to vindicate the life of people - that follows on in terms of investigations - in so far as is practicable. We have to deal with issues of possibility and with practicalities. Mr. Mansfield’s written submission, on which we have relied hugely, is very light on that. He has elaborated this morning, which was welcome, but the written submission does not say how these procedures are practicable. Can he comment on that?
Mr. Mansfield: I welcome the opportunity to deal with the points made. I did not intend to glide over the words in question. They come in the context of the speech indicating the purposes of the investigation, namely to ensure as far as is practicable and so on. Two sub-committee members have indicated what Mr. Justice Barron was saying. He was never saying there would be no purpose for a further public inquiry. He made that very clear. It was not part of his remit. He was never saying that there was not more material that might be relevant. He could not because we know, potentially, there is more material available. I am just concentrating on material that is available from the jurisdiction that, in a sense, sourced the whole of the incident, in other words, the cars and all the rest of it. “So far as possible” has not even been attempted. Sorry, that is unfair, it has been attempted but it has produced nothing. That is why I have emphasised that on the letters that have come back and the letters that have been summarised in the report, Mr. Justice Barron’s response to you is, “They have given me nothing. I cannot make an assessment.” How can that possibly begin to satisfy “so far as possible” or “so far as is practicable” when we have indicated to you what is practicable?
In fact, what the case is saying is that you have to be careful not to allow the difficulties of a public inquiry to blur the need for a public inquiry because the need for a public inquiry, and you probably recognise that, is the moral underlay which I began with and the reasons for the procedural aspect of Article 2. It may be that when it comes to the practice of the inquiry - I cannot predict - there is not anything in all the documentation but, on the other hand, there may be. Until you get it, you do not know. Until you get it, you cannot go as far as possible to, as it were, bring the full facts to light. We say even within the purposes, never mind the criteria which is set out on other pages, no one has got anywhere near it yet.
Deputy P. Power: We received Mr. Mansfield’s written submission over the weekend - and we closely examine all the submissions received - which contains a heading, “Would a Public Inquiry be Fruitful?”. In the subsequent 23 paragraphs he explains his difficulty with the Barron inquiry. While I have no difficulty with that, he is not being very helpful to us because he is trying to prove a positive by trying to disprove a negative. He is outlining all the reasons Barron did not work, and that may be true, but he has not made, at least in the document, convincing arguments as to why the opposite is true. Many people have come forward to say they want truth and justice and if we have a tribunal they will get that. The causal connection, if I can use those words, between both of those arguments has not been made in Mr. Mansfield’s written document. It is all criticism of Barron but it is not set out in writing the way a public inquiry would be fruitful. Mr. Mansfield may have done so orally this morning but it is not in the document.
Mr. Mansfield: Hopefully I have done so orally this morning. I think we said we would amplify in oral submissions. I take what the Deputy is saying. I used the heading, “Would a Public Inquiry be Fruitful?”, and I think I have already indicated that paragraphs (a) to (h) are really the negatives, what was not achieved in terms of procedure. That is at the top of page 4. That is the Deputy’s point about the negative. That is what has not happened. I appreciate that but we have to point out that it has not satisfied the criteria. In order to be fruitful, if you start at paragraph (i), on every single item there, we say - we have been over this ground - that further information other than documents was refused, which is the limited scope point I made. On the files that are then identified in paragraph (k), again, we think all of these are fruits that can be obtained.
Deputy P. Power: I understand the point Mr. Mansfield is making. Paragraph (r) states that a public inquiry may be more effective in securing co-operation because it is public, because of the powers vested in it and the fact that the inquiry is open to a fine if there is non co-operation. I accept those points. That would be the exception to the document but paragraph (b) refers to the powers vested in it. I would like to see, and I invite Mr. Mansfield to make it in writing, a document on exactly how the powers translate into practical and concrete results, in other words, the taking of evidence on commission in England. If that could be fleshed out for us in writing, as I had expected it would have been in Mr. Mansfield’s document, that would be helpful to us. Perhaps he could outline, step by step, how it is possible, what is the appropriate method of obtaining court orders in England and the defence under the European convention, in other words, if they are not——
Mr. Mansfield: Those are footnotes on pages 7 and 8 to be elaborated orally. I take the Deputy’s point and I would be quite happy to reduce this to writing. As a footnote to what I have just said, Mr. Des Doherty has reminded me of a point in relation to the Saville inquiry where letters of request were sent to other jurisdictions because a number of witnesses were not in the United Kingdom. What happened was that the tribunal or its representative travelled to see these persons - I am not in a position to name who they are - many of whom remained anonymous. Some of the material they provided was never made public, let alone to us. It goes back to the Deputy’s point that one makes the request and if it is met, fine, but if not, one would try to get a court order. If the court order is not met, one might judicially review it. Assuming one does not have to go through all of that, once an order is made by a British court that this request should be met by the Government Department, if it has to go to court to get the order, at that point the question of public interest immunity comes in. One would have an argument at that point as to whether it applies to this. All PII is saying at the end of the day is that one can have it, but not everybody has it, just the panel. I will put it all in writing.
Deputy P. Power: That would be helpful to us. I have a final question for Mr. Mansfield and one brief question for Mr. McGonigal. I have asked many people who have made submissions about the required standard of proof. That is something which concerns us because people want truth and justice, but proving it is a completely different matter.
Deputy P. Power: At the time the Garda, and we have all made criticisms of it, felt it was not even in a position to make a prima facie case to the courts to extradite the individuals because it did not have the level of proof.
Deputy P. Power: To secure a conviction 30 years later, or to ascertain the truth now, requires a clear definition of what level and standard of proof is required. I did not get from Mr. Mansfield’s oral presentation exactly what that ought to be.
Mr. Mansfield: No, absolutely not. I am sorry to be a little didactic on this but it is not the terms of reference of the inquiry. The people who set it up might suggest to the panel that it ought to be X, Y or Z, but they cannot determine it. It is for the panel - one person, however many - to determine the rules and procedures within it, including the standard, not the onus because it may not be applicable, of proof. That is what normally happens. It tends to be like a toxin. It just grows through the inquiry and in many cases one does not discover until the end what standards have been applied to which issues. One can guess.
All I was suggesting was that it would be desirable for the panel to set out at the beginning not just the terms of reference which it has been given, but to say, for example, and the counsel to the inquiry would have to do this, that these are the issues we want to look at within the terms of reference. In relation to, for example, who planted the bomb, that would be a criminal offence and the panel would have to be satisfied on the criminal standard of proof vis-à-vis it.
Something that has fascinated me as a lawyer in relation to this is that there were three identifications here of a particular individual. I know it was only a photograph, but there are procedures here. There is nothing wrong, for investigative purposes, for me to show a person a photograph in order to get somebody identified for the purposes of the investigation. Once one has somebody identified and, apparently, there is good intelligence with the British, the next thing is one arrests somebody and one puts him or her on an identification parade. If the person is picked out, the defence is told he had been shown a photograph but it does not invalidate the identification. None of this seems to have been considered, although it is touched on in the Barron report. All of this would have to be gone into; one is going back to eye witnesses again. There was a lot of potential evidential material to have enabled an arrest.
On the Deputy’s next question in terms of being satisfied, one would have to ask the questions to see what the material was and what other material is in the files. On other issues, civil balance of probability.
Deputy P. Power: With regard to the principles set out in the Mubarek-Amin case, upon which Mr. Mansfield relies heavily, that case is concerned with incidents in the recent past. Can the same principles be applied to an event of 30 years ago in regard to which one is dealing with matters that are notoriously difficult to prove? This is not - I will not say an open and shut case - about who should not have been put into what cell, but about dark areas of collusion which will not be on paper or in writing. Do the same principles apply from one case to the other?
Mr. Mansfield: Yes, I think what Mubarek is saying is that there is a minimum threshold, irrespective of the manner of investigation, in other words, the mode of investigation, operated by different countries and irrespective of time because, as was said in the Saville inquiry - interestingly, I think it is a submission of others, possibly later today - time, in a case like this, may not matter quite as much because memories of such horrific events do not fade in the same way as they might in other cases. Time is not of the essence in the sense that Mubarek is not saying it has got to be within five or ten years, or whatever, when memories are fresh. That would be a matter for judgment for the panel as to whether it can come to conclusions that satisfy it on memories in relation to certain things. However, until one has tried the exercise, one will not know what the answer will be.
Deputy P. Power: I thank Mr. McGonigal for his presentation and for his information regarding the Dáil question of 3 December, which is obviously something into which we will look. With regard to a point Deputy Paul McGrath touched on, it is not within our power to order an inquiry - far from it. Mr. McGonigal said in his concluding remarks that a fair hearing which does not have the truth and justice is unacceptable to him. What if the committee said to Mr. McGonigal - no matter how difficult it is to say - that it may never be possible to ascertain precisely what the truth and justice are in this case, as has happened in thousands of previous cases? While Mr. McGonigal says it is unacceptable, we must make reasonable judgments in regard to what is and is not acceptable.
Mr. McGonigal: When one gets to the result. We know that, so far, anything that has been tried has not brought conclusion and has not elicited the truth and justice. We can see from the documents that there is a mound of information that can still be gleaned from persons who were involved or closely associated with it. The purpose of the inquiry is to try to break through to enable us to get at the truth and the justice. If that inquiry is properly set up, it will get to the truth and the justice. I have no doubt about that because it has happened in every other inquiry which has been set up within this State, to a large extent, if one reads the reports carefully.
In relation to Deputy Power’s point about the standard of proof, that is dealt with in the Goodman International and Hamilton case, which is in the index. At an early stage of the inquiry Mr. Justice Hamilton indicated that the standard of proof he would be applying would be the criminal standard of proof - beyond a reasonable doubt. In fact, the issue was raised by the Goodman legal team in the case. Mr. Justice Hederman indicated that in his opinion it was not necessary for an inquiry to indicate the standard of proof that it would apply, that it was for the inquiry at the appropriate time to deal with it.
Chairman: In regard to the Mubarek case, the state had a direct role or involement in so far as the person, Amin, was actually in custody. He was in the care of the state. Is there not a rule or legal imperative that if a person is killed in a prison in the UK, a public inquiry will be held?
Mr. Mansfield: No, they give the history of the fact that there is a necessity to have an inquiry which they date back to coroners’ courts and inquests. As you know, there is a discussion in here that the problem with inquests is that they do not satisfy Article 2, therefore, there will have to be legislative change. Certain recommendations are made in the Mubarek case as to how inquests will have to change. However, what we are doing in the history is to say there is an obligation on a coroner, because there are not in other circumstances, to hold an inquest into a death in custody - it is a special category - but not a public inquiry.
Mr. Mansfield: Yes. It is a difficult concept. You are quite right. I have tried to be careful in outlining it. The obligation arises where the state itself commits the act, what they call the laying on of lethal hands by the State itself, or where the laying on of lethal hands is not done by the State itself but in a situation, for example, a prison cell, for which the State is responsible.
There is a third situation, which is why I mention Osman. If you look at the first page of Osman, you will see that the obligation under Article 2 arises also where there is a need to protect you from the act of a third party - you being a citizen of the state or present within the state. Of course, it is circumscribed. The obligation does not arise for everybody all the time. The duty of care outside a prison cell arises when - I am quoting from the start of Osman - it is established that there is in existence a real and immediate risk to life of the individual. That is why I mentioned Mr. Justice Barron’s extremely good historical analysis of the information generally available at the end of 1973 and into 1974. It is very clear that there was a risk - it is on page 29 - of bombings and shootings both in Northern Ireland and in the Republic. That was a statement on 7 December 1973.
I would say in the context of that statement, plus all the rest of the troubles, there is a real and immediate risk to life for people living in Ireland from the terrorists, the militants, the paramilitaries, who are all named in there. In other words, everyone was conscious of the risk, which is why no doubt information about cars was passed and the public were put on notice. Only the year before - since my car was involved, I am certainly conscious of it - there was a car bomb in London which blew up my car. Everybody knew the risks involved. That is how you approach it - it is the third level.
Chairman: Variations of it. On the whole question of whether one state should investigate the deeds of another state or whether it is empowered to do so or not, you said yourself that the UK was the jurisdiction that sourced the whole of the incident.
Chairman: They were the words you used yourself. Would it not be more appropriate that an inquiry would be based on a resolution of the UK Parliament and be in the UK rather than an Irish resolution of the Dáil?
Mr. Mansfield: Not wishing to dodge it, the answer is it would be as appropriate as one here because the effects were totally here. Therefore, given the obligations that arise under the convention here, then there is an obligation here primarily. Obviously if you could get a cross-Border inquiry, this would be in a sense a further decision. If you recommend there should be an inquiry and the Dáil thinks to itself that there should be one and there should be a cross-Border inquiry, and that has been raised in some of the other submissions, then it would be a political approach to the English Government to say “Are you prepared to help, structure and organise a cross-Border inquiry?”. It would not be the first time such a thing had happened and, of course, that is the best of all worlds. What one is really saying is one is shaming the English authorities into considering that possibility if you were to do it. I do not think that because it is all sourced there the main obligation is there, there is an equal obligation between where it is sourced and where its effects are finally felt.
Mr. Mansfield: Well, I would not like to say whether it would be of any benefit. I suspect there are benefits to be had but that is a different question. It would not satisfy the criteria of Mubarek, that is the problem because, as I understand and I hope I have got this right, it was not in public. I am not sure of the extent to which people were represented. When one begins to look at it, it does not satisfy and would just be another attempt to get some truth but if there are obvious criteria, my submission would be to go for the real thing, not a watered down version.
Chairman: At all times there appear to be some deficits and deficiencies on how it was done relative to the actual articles as set out in the convention. The sanctions are not what some would consider sufficiently appropriate or strong. Overall, are there complications in what you are proposing under Article 2 because of the way that incorporation is done? Does that Article 2 allow the Irish State to investigate what is going on in the UK, both of us having incorporated it in some way?
Mr. Mansfield: There are two elements to your question. First, on the difficulties of incorporation, as far as Article 2 is concerned in the English legislation, there is no problem. As far as I can see in the Irish law, I do not think there are problems in terms of its incorporation because Article 2 is the one article that everyone is clear is not only sacrosanct but fundamental to the whole convention. I do not think there are so many problems there.
In terms of it giving a right to investigate, it plainly does because the investigation of crime actually begins where the crime is committed. It may end up taking place all over the world which is why a state asks for the co-operation of other police forces. Where a state can enforce such co-operation - I suggest this State has a mechanism of enforcement - it should procure evidence of what has occurred elsewhere. The article absolutely entitles this State to use it to investigate what has happened on your end. In a sense it is a human right of the Irish State to be able to say it must be in a position to investigate, particularly if such an investigation is conducted by another state. In future, we will get into the territory of the International Criminal Court, the ICJ and so on. Other institutions may come into play which will mean that this State will not necessarily, as it were, have to go through this labyrinth. Nevertheless, we are only on the doorstep of that. I understand the Chairman’s concerns, but the article makes it plain that where there are threats to life and actual loss of life, a state obviously has a right to investigate; it is the obverse of the obligation to protect.
Mr. Mansfield: The short answer is no. There was a fatal accident inquiry in Scotland. If you read Mubarek, which is interesting, it states that the problem that confronted the English over Mubarek would not have confronted the Scots because the Scots have an entirely different system of investigation, which satisfies Article 2, whereas the English do not. That is how it arose. There was not a public inquiry in Scotland over Lockerbie; there was in fact a fatal accident inquiry, which is slightly different, although some of the features are the same. There was an inquiry which would satisfy Article 2.
On the question of what happened to the two who were put on trial, they assembled the evidence - which primarily came from an informed source as well as other forensic material they had found - as a result of the inquiry and the police investigation. They then, effectively, created an anomaly. The trial was held at Camp Zeist in Holland but Camp Zeist was not regarded as Dutch territory; it was regarded as Scottish territory. Therefore, in fact, it was a Scottish trial held on foreign soil because this was part of, if I may put it this way, the deal that was struck in order to get the two tried where it was thought there might be less obvious prejudice. That was part of reason because it was judges, not juries, who were dealing with it. It was a very different situation from this one.
Chairman: I have a sensitive question for Mr. McGonigal. Mr. Mansfield mentioned the moral reasons there should be a public inquiry and that the promise of one was there. There is the matter of the grief the families have suffered and the matter of public confidence in the system of justice. Mr. McGonigal mentioned in the Moriarty reading that as a result of a nationwide crisis of confidence it was of urgent public importance. While it is easy to understand the reasons Mr. Mansfield gave, in this case it is questionable, and this is something on which we have to deliberate, whether there exists a nationwide crisis of confidence and urgent public importance. Can Mr. McGonigal elaborate in any way that might assist us?
Mr. McGonigal: The way I would put this is that what I was referring to was that the purpose of the public inquiry was to deal with the crisis of confidence that has arisen. The crisis of confidence that has arisen in this case is that an atrocity was carried out on 17 May 1974 which has not been properly investigated or resolved to date. There has been a crisis of confidence in that regard in the Garda authorities and in successive Governments, to some extent, since that time to the present. That is something that has to be resolved. It starts where the bombs take place and rumbles out from there. The Barron report had the effect, in one sense, of bringing to the public mind what had happened in 1974. Therefore, you have two groups of people who are immediately concerned - the next of kin and relatives and then the wider public - that an atrocity of such dimension could happen in this country with no resolution as to how, why or who did it.
Mr. McGonigal: Can I deal with it in two ways? We gave you an index of authorities and the last item on the index is an article entitled, “Foreign Evidence and Domestic Tribunals: The Paper Chase in the Sand” by Michael Collins, senior counsel. It is an article based on the application by McCracken. The article is by Michael Collins, who was involved in the application both in England and, to a lesser extent, in the Cayman Islands. You will see that the refusal was effectively based on the Cayman Islands’ law, which was considered to be slightly different to the English law. It was for those reasons that it was rejected, but the precedent which we would be operating in relation to trying to obtain the documents and the oral evidence here would be the precedent of the deputy master making the order in England based on the fact that the laws are similar.
Deputy Costello: I thank Mr. Mansfield and Mr. McGonigal for making such fine presentations. Mr. Mansfield argued that, as part of our terms of reference, a tribunal or public inquiry would be necessary and fruitful. I refer him to page 7 of his written submission, which makes two categorical statements. The first reads as follows:
Mr. Mansfield: The first paragraph on page 7 - in other words, the one at the top - which states that “Any such inquiry would require the support of all relevant Governments ... ”, is obviously intended to refer to the fact that one assumes that the Irish Government, having set it up, would co-operate. The statement “that the Courts in both jurisdictions are in a position to assist the inquiry ... ” is, in fact, a reference to the fact that you have this procedure whereby, as I already indicated, you issue letters of request to the Government which can be adjudicated by the courts, if necessary, to produce orders, answers and documents relevant to the question. When the inquiry was established, it would have to be made clear to the public, to the inquiry itself and to other Governments, that this procedure was going to be, or may have to be, employed. Hopefully one would not have to employ it because one would have approached the British Government in advance to say, “This is what we are doing. We do not want to have to employ legal means to get this material. Would you reconsider?” I am assuming all sorts of approaches will be made. At the end of the day, as we also put in this document, if, in fact, all that fails and you get no co-operation at all, which is most unlikely but which we will assume, then the panel itself can come to a judgment in terms of what inferences can be drawn from non-co-operation. To make sense in the initial stages, plainly an inquiry would require support and, we say, would get it via the mechanisms we have suggested, which are the next paragraph. It states:
There are two possibilities here, one of which is the cross-Border one on which we have touched already. In other words, it may be that one has an inquiry which touches where the effects of bombs were and also where they were sourced. Of course the British Government may not be remotely interested in having a cross-Border inquiry but they have to be asked in the knowledge that you have already recommended there should be one here. They might like to co-operate at an early stage, particularly since their professed policy at the moment is the eradication of terrorism. Surely they would consider co-operating, particularly, practically speaking, if it gave them even greater control over what they regard as sensitive material and how it is placed before the tribunal for only the tribunal’s eyes. One is really setting up an ideal here in saying this is what you need and these are the mechanisms for getting what you need. We feel strongly that at the end of the day the sub-committee will be in a position, as a result of those statements and the mechanisms available, to get it.
Deputy Costello: To move away from the legalities, I want to focus on the requirement that one would have the support of all relevant Governments and the co-operation of the British state. One can compel through the law if necessary as a last resort but co-operation does not depend on legal compulsion. How does Mr. Mansfield envisage that this might be done? Do you really think there is any possibility of getting voluntary co-operation from the British Government and the Northern Ireland Office, considering the array of refusals that we, and Mr. Justice Barron, have had to date?
Mr. Mansfield: I am sorry to say you cannot. This is my answer. You may not want this answer but this is the answer I give and I will repeat. The reality it is that if the British Government recognises that you are setting up a public inquiry under the Tribunals of Inquiry (Evidence) Act 1921, with all the necessary powers that it will be familiar with because it has set up enough under the Act itself, then you are in a different ball park with different pressures. There is no use in saying, “Let us forget the legality, how do you get the Government to co-operate?” That is a political dimension which I hand over to you. So far you have not succeeded, so you have brought the lawyers in and I am here, as it were, to compensate for the fact that you have not succeeded so far.
It is no use you saying to me to forget the legalities. Having forgotten the legalities, as it were, for 30 years, you have not got anything, so I am in a very strong position to say to you, if you do not mind me saying, that now is the time to embrace the legality framework in order to produce a political result. It is the business of putting the British up against the wire. Once you have a British Government put up against the wire it will recognise, slowly but surely, that the tide is coming in and that there are going to be some difficult questions asked in public in a situation where we have a Prime Minister going around the world asking nations to co-operate on this, that and the other front on matters to do with the very acts we are dealing with here, although 30 years ago. I do not think he is going to be readily saying, “Whoops.” He will no doubt parry and delay. This is where the timeframes and constraints are so important.
I am afraid that you do have to face a different reality, and so do they. I am not living in another world. I have spent 37 years watching how Governments shift. That is exactly how the Lawrence inquiry started off, “Never get anywhere; don’t bother; don’t worry; you are not having an inquiry; we will do this; we will do the other.” They said, “No” but finally they got one and guess what? They got a few answers. That trust is extremely important for these families and everybody else. If you turn your back on the legality and say, “Well, tell us how to do it politically,” it has not worked politically.
Deputy Costello: You have picked me up wrong. We are not turning our back on the legalities. I just want to ask a question about the political dimension before going on to ask about the legalities in another question. On the political dimension, Prime Ministers from two different jurisdictions, or sovereign states, interact at international level. We heard a presentation from the previous Secretary General of the Department of Foreign Affairs who felt that the relationship between the two jurisdictions was sufficiently politically robust for co-operation and agreement to be secured, leaving aside for the moment your particular area, the legal profession. Do you think that an appeal by the Irish Prime Minister to the British Prime Minister, using, if he wishes, some of the arguments that you have presented——
Chairman: Mr. Mansfield came here to make legal arguments and is not obliged to answer such political questions. The Deputy is entitled to ask the question but I must protect those who make submissions to the sub-committee.
Deputy Costello: The question arises from the statement that the Government must secure the co-operation of the British Government. I want to explore this in a political fashion. We are speaking of co-operation which is broader than legal determination. Can Mr. Mansfield outline how that co-operation can be obtained? That question was not addressed in his presentation.
Mr. Mansfield: No, not in those terms. As the Chairman pointed out, that is a highly political question. One assumes that in considering the recommendation to establish a public inquiry, there would, of course, be a level of communication between the two governments, as there is on many other aspects of current political life including the peace process and all its effects. I am assuming those channels are open. It is self-evident that support and co-operation is required. If this can be obtained politically, through the normal channels, then there may be no need for the legal framework because it may happen anyway as a result of political will.
I am a little concerned about statements that appear to have been made by the Taoiseach recently that he is content, if this is true, there is nothing more to come from the British Government. I do not know where he gets that from. The reason I am sceptical it will ever happen at that level is that politicians did not ask the questions which should, in my view, have been asked in 1974. The sub-committee must raise the issue of why these questions were not asked. Why did nobody say to the British in 1974, “What’s the good intelligence?” If they were not prepared to do it then and are now saying there is no more to come, I am a little worried about the extent of co-operation and will to do this. Is the real agenda hopefully to put this matter on the back-burner? The reason I put everything in a legal context is that I am afraid and sceptical about progress behind the scenes in a diplomatic, political sense until the other side, if I may put it that way, recognise that you mean business. Until they recognise that, they will assume it is a pat on the shoulder and you will run away and tell the electorate you have taken care of the matter. I do not think, if I may say so, the electorate will put up with that. However, that is a matter for you and not for me.
Deputy Costello: I refer Mr. Mansfield to his statement on page 4 regarding the statement made by the Taoiseach in the Dáil on 3 February 2004. The Taoiseach has stated that he does not think “The British Prime Minister is knowingly withholding information and files which he believes are needed” for the purpose of inquiry into the Dublin and Monaghan bombings. All the evidence we have received is to the contrary, that files have been withheld, if not directly by the Prime Minister, then at other levels. What does Mr. Mansfield have to say in that regard?
Mr. Mansfield: That is precisely, if I may say so, what I was just referring to; that is my concern. There plainly are files. Mr. Justice Barron recognises there are files. The British State, in correspondence with my instructing solicitor - the correspondence is available if members wish to view it - also recognises there is material which it has undertaken to us, and hopefully to the sub-committee, to retain in safe custody. The problem here, if I may trespass for a moment into the political arena, is that the British Prime Minister is probably not knowingly withholding information. We are back to a debate similar to that about weapons of mass destruction. He may not be knowingly doing so. The problem is, what does he really know? What is she really told? He may be given information, as he was about other things, which turns out to be wrong and so he has been misinformed. My comment here is that the Taoiseach’s observation may arise because he has been told informally, perhaps on more than one occasion, by the Prime Minister who has been assured by the head of Department, who has been assured by somebody lower down that there is not anything else, and we are back to the summary of letters which actually tells you nothing. In other words, it is a very easy parrying movement. It is all right, between friends, there is nothing else to come. It is when you get to the something else that you discover there is something else to come.
I am very unhappy with that statement. That is why we are saying that would not be a suitable basis for saying just because there has been some kind of assurance behind the scenes that it does not need forensic examination.
Deputy Costello: I have a final political question and I will not go beyond that. We have had quite an amount of detailed legal presentation. However, the aspect of co-operation must be dealt with. Virtually all of the people who were asked the question felt that a public inquiry would be of very little value if there was not co-operation between the Northern Irish or British jurisdiction and the inquiry. We know the good work the Taoiseach has done in terms of meeting the various groups involved, the British Prime Minister and the Secretary of State for Northern Ireland. However, if we were to make a call in that regard, does Mr. Mansfield believe there is anything we have seen so far which could still not leave scope for the robust relationship between the two islands to be reflected in a positive response in respect of further inquiry? Would the British Government give its imprimatur in this regard?
Mr. Mansfield: Again, it is obviously a legal framework because I feel strongly that that is, if you like and to put it bluntly, the stick which will produce the fruit at the end of the day. I also referred to shaking the tree and so on. A precursor would obviously be through diplomatic channels. In other words, were the sub-committee to recommend the establishment of a public inquiry, the time between the recommendation and the Dáil’s consideration might be spent profitably engaging in telephone calls or meetings with British politicians to see whether in fact, rather than forcing them to co-operate in the way that I have described, they might like to do it voluntarily because it might look a good deal better if they do. As a politician and as a lawyer, that is the way I would do it. We have waited long enough. The chips are down, the framework has to be clear, there have to be positive steps. If the British State thinks it can get away with anything less, it will and it will only respond when it sees the colour of where you are coming from, as it were.
The first of my questions relates to the time framework. We discussed this earlier and our guests said that the shorter the framework, the swifter the results but the results may not be all that we would look for in the event of a public inquiry. Was Mr. Mansfield making a clear recommendation about the six months timeframe? Is there such a thing as a cost framework? Witnesses - I refer to family members - who previously appeared before the sub-committee called on us to place a cost framework on a public inquiry if that is the option we are going to take. I would like to hear Mr. Mansfield’s comments on these matters.
Mr. Mansfield: There is a slight disparity in what we are saying and I understand Eoin’s point that if you impose a timeframe, it can be unreal and arbitrary. I am conscious of that. However, what I am trying to address is that there is, I think, public disquiet about an inquiry that has a life of its own and that does not appear to have an end in sight, as it were, and that they can get a handle on and put a cost to. In an attempt to meet that very natural response, some form of firm commitment to a timeframe is necessary. It may be Mr. McGonigal’s suggestion that after three months they have to give an interim report about how they are doing and how long they are going to be and then the people who set up the tribunal, namely the Government, will have to say they will not allow them five years to look at one aspect. Timeframes would be set at that point or the Dáil might say in the first place that there was an overall timeframe involved and under no circumstances, whatever the need, can it go beyond two years. The public knows there is an accountability here.
As far as cost is concerned, it is entirely acceptable that there should be a budget which should not be bottomless, plainly. It concentrates minds on what is necessary to be obtained. While that is not to say truth can be measured in financial terms, certainly there is a risk that truth gets lost if there is no measurement. In other words, one can end up going up cul-de-sacs, which, if somebody had applied his or her mind in the first place, one would not have bothered with. It means people have to be extremely careful and appraise every step they take. I am not against that. I do not know what budgets are available - that would be a political decision. Certainly, putting a cost framework on is not a problem.
Deputy Hoctor: After three years of investigation by Mr. Justice Barron, the sub-committee can be described as being at the crossroads. Certain questions have been answered and others have not. If a public inquiry was to be undertaken, how can we be sure it will bring us to greater certainty? Will we end up with more unanswered questions at a higher level? Will the families not grieve at a higher and deeper level when we come to the cul-de-sacs which are inevitable in view of the fact that 30 years on so many people are dead? The evidence and vital information they had has died with them. Every one of the people who led the Garda investigating team has passed on. While we may get some kind of closure, it will be incomplete. Would we be better off examining other options?
Mr. Mansfield: It is an interesting question. I come back to the beginning, which is the moral underlay. I am speaking obviously for the families here and they would agree. They accept at the end of the day, as everybody must, that in a human institution there is a risk that all questions will not be answered. The families might get more answers than they have at the moment - I would say the risk of more answers is much greater - but, and this is the reason the procedural aspect of Article 2 is so important, what the minimum requirements are saying is that if one has few answers and no proper process, that is the real denial.
The Taoiseach himself when discussing inquiries in the first place said that for too long the families have gone without a proper investigation. Part of the grieving process has been that they have not had the answers. The key is that the families can say: “We have done everything possible. We were represented, the Government put in resources and we have had people in Britain ask questions and even brought over where necessary to answer questions.” There are video links so that people do not even have to leave London. They can sit in Whitehall and be cross-examined over the television screen.
The families have seen all of that happening. The idea of it attempting to be effective, to ask the right questions and for them to be represented are requirements which have all been met. This is why Lord Steyn and others in the Mubarek case were saying that one should not confuse the merits with the procedure. To say the process will not get anywhere and that it will make things worse is to presume. The relatives would not ask for a public inquiry in the first place if they really thought it was a nonsense. They are saying that it has been a nonsense up to now.
We have not had a satisfactory answer to any of the real questions which have been asked. When we see that everything that is humanly possible to achieve has been achieved, at least we can then say: ”That is it, we can go no further. I mean “possible” as used in the Mubarek case and in the Constitution - as far as is practicably possible to be achieved. That is why the procedure is so important. Currently we have not even had the procedure, never mind the answers.
Deputy Hoctor: Is Mr. Mansfield convinced that in the event of a public inquiry there is sufficient evidence in written documentation to bring the full closure the families want? After all, as some of my colleagues noted, collusion obviously thrives and did thrive in secrecy and in the lack of documentation. If it is documented, collusion is very weak. It thrives on secrecy. I wonder about the ultimate merits of this process when so much will not be documented and also given the fact that so many people are deceased.
Mr. Mansfield: I think the families will feel satisfied that at least the process has been gone through, which is important for the moral reasons I suggested - the restoration of confidence and part of people’s own feelings of alienation being, as it were, redeemed.
The Deputy’s other point is interesting and I should have addressed it before because I have been involved in inquiries where governments have been very difficult and unwilling to produce documentation. Mr. Justice Barron and the Deputy are quite right. I am sure the documentation will come, just as it did to Saville - much of it completely fascinating. It does not grab headlines. It is interesting that one does not get collusion written out on a document. In many conspiracy trials, nothing is written down. The judge tells the jury it will not find a conspiracy written on a piece of paper, but must infer from circumstances. One finds that there are links between documents, with certain names coming up. They may be anonymous, such as A, B or C, which is what happened in Saville and other inquires, but one begins to notice certain things.
I will give an example. Mr. Justice Barron suggests the UDR or RUC were likely to be involved in the preparation of the bombs and he puts the Glenanne farm as the second main strand in his inquiry. He indicates that the UDR, an arm of the British State, already had a lot of material from the British Government on the structure of the intelligence services. One of the points about the UDR is that each of its branches has an intelligence officer. That is interesting. Who was the intelligence officer for the relevant area where the farm was situated? Did that intelligence officer put in any reports about the farm? Sometimes the absence of material is just as important as its presence. If it is being suggested that all the material is there, one then begins to ask questions, as with the missing documents in the case before us. In other words, the families would love to know what is not there as well as what is there because it gives rise to as many questions on which in the end a panel can, on the civil balance of probabilities, come to sensible conclusions. There is only one inference. Juries do it every day of the week.
Deputy F. McGrath: I welcome Mr. Mansfield, who has begun discussing the issue I intended to raise. Regarding collusion, am I correct from the legal point of view and from the families’ point of view that Mr. Mansfield believes it is not just a question of collusion, but that serious questions are to be answered regarding direct involvement in the atrocity? He mentioned the Glenanne farm at Markethill in County Armagh as one of the alleged staging posts for the Dublin bombings and that this farm was known to the security forces in Northern Ireland at the time. Am I correct in my assumption that Mr. Mansfield is not just talking about collusion but about direct involvement?
Deputy F. McGrath: Mr. McGonigal mentioned some significant information on a meeting between the former Minister for Justice, Mr. Cooney, and the UDA. I live in the real political world also but I was not aware of that meeting. Is Mr. McGonigal saying Mr. Cooney met the representatives of the UDA in Leinster House, and was it a Government backbench TD who set up that meeting?
Mr. McGonigal: Yes. I am actually quoting from the Official Report. Mr. Cooney was asked where the meeting took place and he said they came into Government Buildings in Leinster House. When pressed, Mr. Cooney admitted that a Deputy on the Government side of the House had asked him if he would meet these UDA men and Mr. Cooney replied that he would be around on that particular day.
Mr. McGonigal: It appears there may have been a conversation between the Deputy on the Government side and Mr. Cooney prior to the day on which Mr. Cooney was around Leinster House. The Deputy may then have brought this group of UDA people to Leinster House and they may have bumped into Mr. Cooney.
Mr. McGonigal: I am not sure what the significance of it is, Deputy McGrath. We are drawing it to your attention because it appears to be a relevant fact. When we came across it we were not certain whether it had appeared in the documentation up to this point and we felt, and the families felt, that it was a matter which should be drawn to your attention to enable you to give whatever weight should be given to it.
Dealing with Mr. Mansfield’s powerful submissions on pushing for a public inquiry, he talks about the terms of reference and the crucial composition, and on the question of an independent judge he specifically mentions that it could be a judge from the United States. Why did he specifically mention a US judge? He may have hinted at South Africa but not an EU or non-EU country. I ask the question because in the context of the Iraqi crisis, weapons of mass destruction and Guantanamo Bay, why was there specific mention of a US judge? Does Mr. Mansfield believe our citizens might have confidence in that type of process?
Mr. Mansfield: There is a reason I mentioned the US in particular. Coming back to the real political world, where one is looking, hopefully, for co-operation without the legal stick, if it was a US judge in the chair I think, psychologically, it would be even more difficult. I would suggest an English judge, and there are judges who are either just retired or near retirement who might be interested in doing it, and Irish judges - I do not know, it is not for me to say - and an American judge. Of course the Americans have played a role, I am not passing judgment on whether it has been successful or otherwise, but they have played a role in the peace process in the North. There is a track record here, like the Canadian judge and so on. It could be somebody from North America, if you like, but somebody who will make it very difficult for the British to, as it were, take a complete blank stand. Ultimately, we would pursue them legally but I believe it would help if it were someone like that, or it could be someone from South Africa. The moment you get into Europe different tensions arise. I am not saying they could not do it but that is why I started by saying there was a reason for selecting that.
Senator J. Walsh: Many witnesses who appeared before the committee during the process over the past month would have laid emphasis on getting to the truth and bringing people to justice, particularly the perpetrators. When he appeared before the committee the Garda Commissioner said the file was still open, even though he conceded that the Garda investigation would be in reactive rather than proactive mode. Is there any merit in trying to reactivate the investigation from a Garda point of view by having an independent assessment, somebody who would refocus based on the findings in the Barron report, or should I take it from some of the submissions I received from the team, which seem to have an implicit, if not an explicit, acknowledgement that the Garda investigation is at an end, that the chapter is closed and, therefore, that we move on to a public inquiry?
Mr. Mansfield: The short answer is “Yes”. I do not think there is any point in regenerating an inquiry that is apparently open because one obvious point is that there are many issues which a public inquiry would address, in the same way as the sub-committee has been addressing whether they have been addressed by Barron, that would not be addressed by an investigation into the perpetration of the bombings. In that regard, a number of people also are dead, as far as I can ascertain. That is why the families and, at the beginning of his submission, Mr. Ed O’Neill, are saying that we know it was the UVF, but what we really need to know is that every effort is being made to ascertain how the UVF came to be in a position to do what it did, whether it is the cars, the bombings, crossing the Border, etc., and to what extent was it aided and abetted by others who, to put it mildly, should have known better. I do not personally feel there is any real point in a Garda investigation now.
Mr. Mansfield: Watch this space. I do not want to be flippant about it, but all I am saying is, does one have to use any more against the British Government or the Irish Government than the compulsion of the law? I view the law, even though I am a lawyer, as a last resort. One really does not want to have to use it if one can do it in another way, a civilised way. Putting it shortly, if one is prepared to recommend it, we will not have to consider other means. It is not intended as any kind of a threat but, plainly, we have an option. If the sub-committee does not make a recommendation, we will have to take other actions because I am saying on the families’ behalf that the sub-committee does not have an option.
Senator J. Walsh: Are there any international legal powers which can be secured to compel, in this instance, agencies of the British State to fully co-operate or are we dependent on the British courts to give us that power? In relation to this, there is an issue that has not been covered at all. If one reads the Barron report, apart from agencies of the British Government, there are also individuals within the jurisdiction who could have crucial information and evidence on the atrocity which occurred. How do we secure their co-operation which presumably will come only through compellability?
Mr. Mansfield: Part of the answer to the question is yes. One is reliant on activity in the British courts in relation to the letters of request and so on that are made and the orders of the British court in relation to those letters of request as legal redress. We think it will produce information, as it has elsewhere, subject to PII and all those other constraints. However, there is a further dimension to this, and the British courts, as here, would be aware that if, in any way, orders of the court or decisions by the Government do not accord with the European convention, there would be either an appeal out of order or a judicial review of a Government decision not to produce or not to give information or whatever. The matter then develops in the European arena. It takes time obviously, I recognise, but you go into Strasbourg from a decision of that kind. You have another backup of an international institution, as it were, but I do not think there are any other international institutions beyond that - in other words, the European Court of Human Rights.
Senator J. Walsh: So we are dependent on that. Mr. Mansfield places much emphasis on securing co-operation, admittedly by perhaps applying moral pressure, international diplomatic pressure or otherwise. Given the response of the British Government in the very recent past to the findings of Judge Cory in the Hamill, Nelson, Finucane and other cases, which is that it has not even published Judge Cory’s report, what foundation have we to expect any sort of voluntary co-operation?
Mr. Mansfield: It is the vehicle I have already described. In other words, you get co-operation when they see you mean business. They will not give you any co-operation provided it is a talking shop. That is fine, and the British love that - “Talking shop - fine, go away.” The moment you mean business, before you get down to business, you approach them and say: “Look, we are going for this so we would prefer it if you co-operate voluntarily. If you do not, you know where it is all going to go. If you want to battle about this...”. If I am a diplomat or a politician, I do not know what else is on the cooker at the moment between the two nations and I would be saying: “You want co-operation on that, well you had better co-operate on this.”
There must be all sorts of other political pawns on the chess board that can be moved around. That is for the politicians not for me but, in terms of the legal framework, you are saying to them: “Look, we are going to do it and there are powers, so either you help us now or we are in a maze of difficulty with you later. Do you really want to have a legal confrontation?” I am firmly convinced that the one thing they will not want, they never want matters litigated if they can avoid it. Therefore, funnily enough, I think you will find it will be drip-feed but it will come.
Senator J. Walsh: With regard to the submission made - I think Mr. McGonigal touched on this and I direct my remarks to him - it was emphasised that any recommendation to hold a public inquiry would have its genesis in the 1921 Act rather than the 1997 Act, on the basis that this was done before we achieved our independence from the British and, consequently, the British courts would have some cognisance of that. To what extent is that founded in law, given that we have achieved our independence and that we have a 1997 Act which, presumably, supersedes that?
Mr. McGonigal mentioned the inquisitorial aspect and that it has been found it should not be used for local or minor matters. However, I think he also said that a matter of this magnitude would not be ruled out by it. Mr. McGonigal might elaborate on that.
Mr. McGonigal: With regard to the first question, in the Haughey v. Moriarty case, there was a challenge to the constitutionality of the 1921 Act and an issue arose as to whether or not it was part of the law of the Republic. The Supreme Court held that it was part of the law of the Republic.
Mr. McGonigal: It is in the 1999 report, Haughey v. Moriarty 1999, Irish Reports. That is why we now refer to the 1921 Act as amended by the 1979 and 1997 Acts. The 1921 Act is still the No. 1 Act, if you like.
In so far as the second point is concerned, in relation to the crisis of confidence, as such, in relation to setting up an inquiry, the horrific nature of what took place on 17 May 1974 is in reality the reason for setting up an inquiry into that at this time. You have already had a number of investigations; none of them has got to the truth of what is needed. The Barron report has left too many questions to be asked and answered and, therefore, the only way it can be dealt with is, again, by an inquiry under the 1921 Act.
If we grasp that nettle and set up the inquiry which has been suggested, then, as Mr. Mansfield says, the information we require will come from England, Northern Ireland or wherever you want it. There can be little doubt about that, having regard to the way in which the Act has already been implemented through this State. It is worth remembering that we have on one previous occasion gone to England and got an order to supply us with evidence and material. There may be difficulties in making another application but we have proved it is not impossible.
Senator J. Walsh: You have mentioned that you have experience in a number of the tribunals currently under way. Obviously, you will be familiar with the concept of tribunal fatigue. The public is probably getting to the stage where we should hold an inquiry to address public concern about the cost and length of the inquiries. Where would you place this matter in comparison with the topics currently under investigation?
Mr. McGonigal: Very high, much higher than most of them. To be absolutely blunt about it, there is absolutely no doubt in my mind that the Morris tribunal, which is an investigation into the Garda Síochána in Donegal is a very important tribunal, because gardaí cannot investigate themselves. It requires a public inquiry to do that because of the issues which arose in the case which ran with that inquiry. So far as the Abbeylara tribunal is concerned, again, it is an important issue where an important section of the Garda is being inquired into in relation to actions taken by it. Public inquiries are in reality the only place for those kinds of investigations.
The beef tribunal, going back to 1991, was, in my view, a totally political inquiry, set up for political purposes. The terms of reference were so drafted that the inquiry was likely to last longer than it should have. That is why I pay attention and invite you when drafting terms of reference to make them clear and focused. In so far as the McCracken Tribunal was concerned, that was an important inquiry in trying to understand how certain things had gone unrecognised and how certain matters and lives may have been led - let me put it that way. In so far as the Moriarty and Mahon tribunals are concerned, it would be inappropriate to say anything too much at this stage in relation to either of those.
Senator J. Walsh: You mentioned that we should be specific in the terms of reference, that they should be clear and focused. Given the report and where we now stand, would you identify what you consider to be the specific areas that should be further investigated?
Mr. McGonigal: The term of reference we were toying with in relation to this was sort of half drawn on Mr. Mansfield’s experience in the Saville inquiry in broad terms but it would need refining: the events leading up to and on 17 May 1974 which led to loss of life and injury in connection with four car bombs, three of which were in Dublin and one in Monaghan, taking into account any new information relating to the events of that day. It is the second part, any new information, that may need more specificity, because what we are trying to incorporate is all the events that have taken place since the bombs went off, like the Garda investigation, the involvement or lack of involvement of the Government, material relating to inquiries and things of that nature. A term of reference, focused and clear, if you get it right, helps enormously the progress of the inquiry because there can be little doubt as to what was intended and the evidence and material being sought.
Senator J. Walsh: Judge Barron is currently looking at other atrocities which occurred. I think his report on the 1972 and 1973 bombings is due within the next number of weeks. Heavy emphasis has been laid here both in your submission and in the questions from this side about trying to get to the kernel of the issue of collusion, which is likely to arise in the other investigations. If there was such a recommendation, would you see an amalgam of atrocities being considered in the one investigation?
Mr. McGonigal: It is difficult at this point in time to make a value judgment on that question because until we see what comes from Judge Barron on those further inquiries, it would be premature to suggest one thing or another. I would say that on the matters that are concerned in this investigation, the people for whom we act consider it important that an inquiry be set up at the earliest possible time.
Senator J. Walsh: I do not know if Mr. Mansfield wishes to comment on that but I will ask him a final question. You mentioned that there should be some well defined mechanism to monitor the progress of an inquiry to ensure it did not go totally out of control. I think you will accept from what you said to us that something set up along the lines of the other tribunals, which goes on for five, six or seven years, would defeat the purpose of addressing any issues of public confidence given the length of time it would take. Do you have any examples of the type of mechanism that should be established to monitor that and who might be involved in that, based on your experience of any other inquiries?
Mr. Mansfield: The set up in England is rather different. I am thinking of one inquiry where the monitoring was done by the Treasury - a member of the department was there - and the Treasury solicitors who were present throughout the inquiry. It was never formalised but we all knew why they were there. I would have to go back to the chair of that inquiry to find out whether and how often there were communications between the two.
That inquiry was extremely well handled. It made recommendations that were put into practice. There were two parts to it and it lasted nine months altogether, a very tight grip was kept on the whole thing. Whether that was because of treasury involvement I do not know but that is the only example I can readily remember. I would suggest something like that would have to happen.
Deputy P. Power: Throughout all of the questions we have asked, Mr. Mansfield’s case or argument hinges hugely on the applicability of the English evidence and proceedings in other jurisdictions’ legislation. I think we need to be totally satisfied on that so we do need to show how that is completely applicable. There was just reference to some Cayman Islands case. We want to see where it has happened before and how it happens in practice. It is nowhere now. The whole case rests on that and if it is not set out in writing, it is not very convincing.
Mr. McGonigal: It is partly dealt with in the report of Michael Collins, to which I referred. The history of that application, the result of the application and what happened in the Cayman Islands courts is all there.
Deputy Hoctor: On the response to the question of Senator Jim Walsh on why no case has been brought to date, and the response that you would exhaust all channels before resorting to law, I would say that watching the space that was there for the past five weeks, your last resort is now your first resort - you have called for a public inquiry on your first appearance today. That would seem to be contradiction, is it not?
Mr. Mansfield: I do not want to go through the history of this, as it has all been set out by Justice for the Forgotten, Don Mullan and the families I represent. They began a process whereby they approached the Taoiseach and so forth, and members know the history of that. In other words, they did not take this on as a legal action straight away. The human rights Act only came into force on 31 December. Therefore, we have had a few weeks.
The history of this is of the families, if I may say so, acting extraordinarily responsibly step by step, expecting that there might be a public inquiry at the end of the road. It would hardly have behoved me some five weeks ago to have taken a legal case against the sub-committee when it was deciding whether there would be a public inquiry, unless I have misunderstood what the Deputy said.
Ms Hoctor: ——but on his first appearance here today he is looking for the legal route, whereas we as a sub-committee, appointed to this work, have tried to exhaust all the other channels over the past five weeks. However, his first resort today is what he calls the last resort. He came in with a briefing of a public inquiry being sought from the word go.
Mr. Mansfield: I have not developed at all what would happen in a public inquiry with regard to other material that is not missing or that is being retained by another jurisdiction. Mr. Justice Barron gives a very compelling illustration of the need for a public inquiry, although that was not the reason he was asked to look at it.
In relation to the farm, a large number of people were re-interviewed. Mr. Justice Barron said in his report that when those people were re-interviewed, and it will not surprise the members to learn this, they were not going to readily admit anything. However, he said it is great pity and a disappointment that the RUC when re-investigating and re-interviewing the people who agreed to be interviewed did not do the job an inquiry would do and say “Excuse me, that is what you are saying now but that is not actually what you were saying before” and begin to assess, what Mr. Justice Barron said he was not really able to do, the credibility which goes to the truth of what was going on on the farm. In other words, I have not even developed other areas. We have concentrated on trying to get the British to produce things.
Chairman: I thank the O’Neill family and the O’Brien family and their legal representatives for coming along today to put the case on module 5 in regard to the need for a public inquiry. We listened to what they said and we will take it into account in our deliberations. If there are any further comments please do not hesitate to put them in writing to us as soon as possible, as we have to report to the Dáil by 10 March. We intend to report, if possible, before that date and, if not, on that date. We will break for lunch and resume at 3.15 p.m.
Chairman: Therefore, we will resume at 3.30 p.m. Deputy Paul McGrath is the finance spokesperson for Fine Gael and has to be in the Dáil to deal with Priority Questions. The work of Parliament must continue as well.
Chairman: I have to mention that Members of the Oireachtas have parliamentary privilege and hope Mr. Colin Wallace has been advised that he does not have this same privilege and is fully aware of the situation in this regard. I have one question for him. There are a number of names in the report which are in the public domain such as Hanna, Jackson and the Mitchells. There is a general understanding that these people actually committed the bombings. From where does this belief emanate?
Mr. Colin Wallace: By 1974, the security forces had established a fairly effective intelligence system throughout Northern Ireland. The army had a number of agencies. In addition, there were also the two main civilian intelligence organisations, the Secret Intelligence Service and the Security Service, MI5, as well as the RUC special branch. We produced intelligence reports on a daily basis on all terrorist activity throughout the province. In addition, there were weekly intelligence summaries looking at the activities of the past week.
By 1974, it is true to say that probably most terrorist organisations were fairly well infiltrated by the intelligence services by one means or another and it was very unusual that we did not know, certainly within a week of the activity at the outside, who was responsible. That is not to say we had evidence to say they were responsible that would stand up in a court of law, but we certainly knew who carried out most of the terrorist activities. Looking back on the Dublin-Monaghan bombings, I am satisfied that within 48 hours at most we had a fairly comprehensive list of the people who actually took part in it, not in the planning as such, but certainly the key figures in it.
Mr. Wallace: In 1974 I was the senior information officer at army headquarters in Northern Ireland. I was part of the psychological operations team. The psychological operations team sounds like jargon, but our task was to use psychological methods to support the army’s operations. We dealt largely in black intelligence more than operational intelligence. My job was to study individuals and organisations. We looked at their weapons, their tactics, where they were getting money from and any supporters and links they had outside the United Kingdom. My role then was to use that information offensively against specific targets.
Mr. Wallace: This is nothing new. I helped the Yorkshire Television programme when it was set up originally. I believe passionately that the people who died and who were injured in these bombings were let down by both Governments, north and south of the Border. The vast majority of the security forces I worked with, including the RUC, were thoroughly professional and did not get involved in collusion, but I have no doubt at all that collusion did happen.
At the same time I was a serving officer in the Ulster Defence Regiment. I was in the Ulster Defence Regiment because the army was seriously worried about infiltration, where members of paramilitary groups were joining the UDR for training, expertise and access to republican targets. Most of my colleagues feel the same as I do, that this was totally wrong. We feel that over the years this particular outrage in Dublin and Monaghan stands out, perhaps more than anything else that happened in the North of Ireland, because there is absolutely no reason at all to suspect that any of the people who were killed or injured had any guilt or involvement in paramilitary activity.
I was also involved in the original Widgery inquiry on Bloody Sunday and, more recently, in the Saville inquiry. What struck me was the amount of effort the British Government put into the Saville inquiry by disclosing documents - a vast amount of documentation, more than we ever saw during the Widgery inquiry - and I felt that this inquiry, which actually involved a greater loss of life than Bloody Sunday, had seemed to go by default.
As the first witness this morning stated, I still believe that the people who died were abandoned, particularly by the Government in the South. If the Government at that stage had put pressure on our Prime Minister, Harold Wilson, and Merlyn Rees and Stan Orme - the Minister and Secretary of State for the Northern Ireland Office - I believe we would not be here today because there would have been action taken against the people involved. We knew enough about them. The fact that there was no pressure to bring these people to book seemed totally wrong to me. This, to me, is the one really good opportunity where the Irish Parliament now can do something to redress the failures of the past.
Mr. Wallace: I was fairly treated by the army. I took up my post at headquarters in Northern Ireland in 1968 during the civil rights disturbances. I left in February 1975. I was forced out of Northern Ireland as a result of a dispute with the security service over the Kincora boys’ home scandal in Belfast and then spent a number of years working with Mr. Mansfield, who was here this morning, trying to sort my life out as a result of what happened to me. By 1990 - I think it is germane to your studies - the Government - Margaret Thatcher was then Prime Minister - admitted after 20 years that Ministers had inadvertently misled Parliament over my role in Northern Ireland. To put it bluntly, the Minister for Defence had lied about what my real job was. There have now been three separate inquiries into my case and each one has upheld my position. I was awarded compensation as a result.
I stress this because, as Mr. Mansfield said this morning, getting information about intelligence matters is not easy. It took a long time but I must admit that after 20 years the Government did eventually come fairly clean about my case and I got it resolved but if I had given up in those early years when things were very difficult, they would not have been resolved. I have no conflict with the army whatsoever, far from it. I am still a very strong supporter of the security forces but in 1974 and the years that followed there were people who acted illegally for their own ends, and they have largely got away with it.
Deputy P. McGrath: I too welcome Mr. Wallace and once again our good friends, Mr. O’Neill andMr. Ó Dúlacháin. Mr. Wallace indicated that he was head of security and as such had regular updates on a 24 hour basis I think he said——
Mr. Wallace: It had a wide range of roles, I suppose. First, we were trying to stop the supply of weapons and money to terrorists. During the 1970s, particularly, a lot of that money was coming from the United States, so we were trying to stop the traffic in arms from the United States to the North of Ireland. Second, we were trying to stop the sectarian killings.
To put this in context, at the time the bombings in Dublin and Monaghan took place, we were in the middle of the Ulster Workers Council strike. Those of you who can remember back to that time will realise that in England there was the three day week, a massive programme of industrial unrest which largely brought down the Heath Government. A Labour Government came into power to implement the power sharing Executive which the Heath Administration had drawn up. The political scene was changing frenetically, and behind the scenes the British intelligence community had established dialogue with both the UVF and Sinn Féin with a view to bringing them into the political arena to take part in the Assembly elections. It was felt that the sectarian killings that were happening during 1974 were making that political initiative very difficult. My job, and that of my unit, was to try to target the assassination groups throughout the whole of Northern Ireland to try to stop the killings. One of the most active assassination teams was the UVF group in mid-Ulster. Largely, that was, of course, the group we suspected of carrying out the attacks in Dublin and Monaghan.
Mr. Wallace: Very rarely. It was clear that the people doing the killings were getting their information from well informed sources but quite often the killings were quite motiveless. We felt they were designed purely to cause tension within the community. They were not hitting the IRA and the IRA was not hitting the UVF, it was basically just killing people to cause tension between the two communities.
Mr. Wallace: We would do several things. If the target was a person we could easily approach, we would quite often stake out their premises and even put members of the security forces into their houses. We did this on a number of occasions.
Mr. Wallace: I do not know. That was not my role. That information would be passed on to the operational intelligence people in each battalion. Every army battalion had an intelligence officer and each brigade has its own intelligence staff.
Deputy P. McGrath: I put it to Mr. Wallace that if anyone here today was told a person down the road was to be killed, we would take dramatic action. Did you not feel it was your role to take dramatic action to prevent the death of someone you knew was to be killed?
Deputy P. McGrath: This is important in setting the scene in terms of what was happening at the time. Mr. Wallace is telling us he was gathering intelligence and knew what was happening in a range of communities in Northern Ireland——
Mr. Wallace: The Deputy is misinterpreting my role. The role of the unit on the ground was to deal with the operational day-to-day matters. My job was in headquarters, sifting information. I had no role in working with brigades or battalions. The battalion commanders undertook that role, as did the RUC. I had no active role from a day to day point of view with the troops on the street. The army, like the police, work to a very strict command system. That was not my function.
Chairman: We have 15 minutes more in which to question Mr. Wallace. Representatives from the Pat Finucane Centre have come to Dublin especially for the hearing and we will hear from them at 4.30 p.m. I ask that questions and answers be kept brief.
Deputy P. McGrath: I am trying to establish the type of approach taken by intelligence and possibly active units to activities that were to take place. To what extent would they have condoned “hits” on particular communities? That is the type of information I am seeking. That would put in context for us whether it was possible that it was known a particular group was targeted to do a particular job in Dublin and Monaghan. I find it difficult to understand a mindset like that. I thought Mr. Wallace, with his background and access to information, might be able to tell us if that mindset existed, how it came about and if it was possible to facilitate movement of such people.
Mr. Wallace: It is fairly straightforward. If I got information, through headquarters, from an informant that somebody was being targeted I would pass it to the relevant brigade to take action. Usually the information came to me in another way; it came from units and was passed up. The information I got was usually information that was no use operationally; it was about people and what they were doing and related to a much more long-term operation. It came up through the channels for me to collate. In a way, it is a little like a librarian or an archivist. I was collecting a vast amount of information not directly involved with operations. If I got information of the type described by the Deputy, then I would of course have passed it down to the brigade where the attack was likely to take place.
Mr. Wallace mentioned that part of his brief was psychological operations. You say you were targeting people directly involved in sectarian murders. Were there any people involved in such murders whose names emerged lately as suspects in connection with the Dublin bombings?
Deputy F. McGrath: You said you were involved in helping Yorkshire TV in the “Hidden Hand” programme. You also mentioned that you felt that the families had been let down. Is your criticism directed at both and successive Governments in not looking after the citizens of the State?
Mr. Wallace: It is directed at both Governments. Had there been an inquiry of the Bloody Sunday type, despite its weaknesses, there were many people within the security forces who would have welcomed the opportunity to come forward and give evidence but no one inside the security forces was willing to take the risk of actually complaining about what was going on. We actually have to give them the platform. My view is that if either Government had done that, if the Irish Government had pressed Howard Wilson and Merlyn Rees for support, I believe passionately that that would have happened but because that did not happen, those people within the security forces who probably found collusion useful were all too willing to allow it to go on.
Deputy F. McGrath: You mentioned the 1974 strike, the workers council and the fact that Rees and Wilson were in power. From your experience in your previous job, is there any evidence that the politicians were in any way aware of these types of activities being carried out by the security forces or do you think they were operating on their own?
Deputy F. McGrath: Do you think that they could have been involved in assassinations, murders and bombings, planned in an open way at a farm at Market Hill, and that the political Establishment was not aware of it?
Mr. Wallace: I think it was possible at that stage in 1974. It would not have been later on because there was a major shake-up of the intelligence community. If you look at the inquiry by Mr. Stevens and others into some of the collusion that went on, I think in 1974, perhaps because there was not the control that there should have been, people got away with it because they knew there would not be an inquiry. It was all just too easy to turn a blind eye to it. That cannot happen quite so easily today. I am not saying it cannot happen but it is much more difficult to do that.
Deputy Costello: I very much welcome Mr. Wallace and thank him for coming along. In your submission, on page 170, in the second paragraph, you say that between 1973 and 1975 the militant approach won out as MI5 gradually gained overall control of intelligence operations in the North and that MI5 preferred military over political means. In your opinion, would that have had a significant bearing on what happened during that period and shortly afterwards?
On page 172 you state there is good evidence that the Dublin bombings in May were a reprisal for the Irish Government’s role in bringing about the Executive and that the people you name, the Hannas, Youngs and so on, worked closely with the Special Branch, military intelligence, etc. Are you saying there was a level of political nous among loyalist paramilitaries at that time, that they were seriously into political-military decisions combined to achieve a political objective, so to speak?
On page 174 you state army intelligence had identified a list of suspects within 24 to 36 hours of the bombings taking place, received further information from meetings between the two Governments and that there was very good information on who was responsible for the bombings. Are you saying that, were we able to access them, there should be original files or information with the list of people who were responsible for the Dublin-Monaghan bombings?
Mr. Wallace: I believe so. If I can deal with the last question first, when I was recently working on the Saville inquiry, the reports released from Special Branch and intelligence sources showed that the intelligence authorities and Whitehall kept very good archives on all the documents produced during that period. That was three years before the Dublin-Monaghan bombings. Bearing in mind that they had such a good range of documents, I believe a similar amount of information would have been kept on this activity.
Bearing in mind that the Dublin and Monaghan bombings created a greater loss of life than any other incident up to that time, it was a major issue for the intelligence services. If we look at the UWC’s strike, the army’s biggest concern was that the loyalist paramilitary groups, who for the first time were working in unison, were using their muscle to intimidate people from going to work. It is true that there was a major difference of opinion within the intelligence community. The security service felt that a military solution was the easiest to achieve. They disliked and indeed were very opposed to the behind the scenes negotiations MI6 was carrying out with the UVF and Sinn Féin. We had the UVF and Sinn Féin both de-proscribed in April 1974, just one month before the bombings. We do not believe at that stage, having just been made legal to take part in political dialogue, the UVF would then, from the brigade point of view, have initiated these bombings but what there was within the UVF was a break-away group in north Belfast, east Antrim and mid-Ulster and these were the hard liners. Largely, we felt that because they were so opposed to the Anglo-Irish Agreement and the increasing role Dublin was playing in Northern Ireland affairs, which was of benefit to the political side, that that perhaps was the catalyst. They used the coming to power of the Wilson Government, who was probably regarded as being pro-republican, which was not the case but certainly sympathetic to the Nationalist community. Therefore, you largely had the RUC Special Branch and the security service on one side of the intelligence fence and, predominantly, the army and MI6 on the other side.
Deputy Hoctor: I thank Mr. Wallace for being with us today. Lists given to you in the targeting of certain people were occasionally returned to you with the names deleted of people who were no longer to be targeted. Was this a common practice or was it unusual for you to receive such documentation?
Mr. Wallace: It was a fairly common practice because sometimes the individuals were informants for the security forces or perhaps were being targeted for other reasons. To ensure we did not compromise any ongoing operation, we would quite often just be warned off. It was fairly normal. The interesting thing is that some of the figures who were excluded were key members of the mid-Ulster UVF who were so active in terrorism at that time.
Chairman: You also stated to Mr. Justice Barron that it would be wrong to attach too much significance to the fact that clearance had not been granted. You do not recall any specific reasons for the withholding of clearance on that particular occasion but it did occur fairly frequently on other projects.
Deputy Hoctor: I turn to the relationship between the Garda and the various forces in Northern Ireland at the time. In your statement you state that there was a good relationship with the Garda and the forces in Northern Ireland.
Deputy Hoctor: As I recall the visit of the Garda Síochána representatives who spoke to us in this room, they said it was on a very casual basis, that there was not a lot of interaction between them. Would you agree, that the relationship was quite formal?
Mr. Wallace: Yes. I think that is true. While we had fairly good links at high level, because of the nature of the two armies and the political structures of both countries, there was not a political structure which allowed co-operation. Between the units on the ground, particularly in the Border area, they got on very well and we had no difficulties whatsoever.
Deputy P. Power: I thank Mr. Wallace for coming. In the document dated 28 June 1974, which you submitted to Judge Barron and which he refers to on pages 172 and 173 of his report, you submitted a list of individuals to senior people in the information policy unit. As he told Deputy Hoctor, some of those names came back blanked out. He obviously cannot tell us the name of the individual who gave him those directions but can he tell us how senior that person was?
Mr. Wallace: They would have been jointly shared by the head of British Army intelligence and the Special Branch. Normally on the command tree was a joint staff colonel in charge of army intelligence who would have at least weekly meetings with the head of the Special Branch. Usually, decisions would be taken to make sure that both organisations at least had a common agreement on major operations. For example, a target could be an RUC informant, or the RUC could ask for that individual not to be targeted because it had a particular interest in him or her. It did not necessarily mean that the army was involved with that person.
Deputy P. Power: Arising out of Mr. Wallace’s extensive experience in the intelligence area, could he speculate as to whether the genesis of the Dublin and Monaghan bombings came more from the intelligence, Special Branch side rather than from the paramilitary side? In other words, is it plausible for someone on the intelligence side to say to UVF contacts that it would be a great idea to bomb Dublin and Monaghan - or did the genesis come from within the loyalist paramilitaries? Could it have come from the British side?
Mr. Wallace: It could. The problem is that in 1974, because of the intense atmosphere and the hostility towards the power-sharing executive, it is very difficult to draw a line between the two. As I said to Mr. Justice Barron, the people we suspected of doing the Dublin and Monaghan bombings were either members of the security forces or had been, that is either RUC or UDR. That does not exclude the possibility that intelligence officers from one of the other agencies manipulated the people and gave them information to help them plan the operation. At a rough guess, it would take about 30 people to carry out that type of operation, in terms of all the support and so on involved. My concern is that, bearing in mind that intelligence was effective in 1974, that group was a major threat to the security forces. I cannot believe that we did not get information about those bombings, bearing in mind how closely the group worked with former serving members of the security forces. The relationship was too close for it not to be seen.
Mr. Wallace: I think it was at ground level, but my argument is that the people sitting back at my level would have been looking at patterns of violence, and targets, and there would have been indicators raising very serious questions about the capability of that group. It never before or afterwards carried out an operation on that scale or with that efficiency.
Senator J. Walsh: Mr. Wallace mentioned that the security forces would have had informants within all the paramilitary organisations in Northern Ireland. Given that most of them operated within cells, is he saying that they would have been sufficiently widespread to be involved in the cells right across Northern Ireland? Specifically, does Mr. Wallace know if there were informants involved in the Glenanne group?
Mr. Wallace: In terms of the people we targeted, it is now public knowledge that the intelligence officers, for example, for the UDA, Brian Nelson and his predecessor, were now both army agents. If one targets a key person like an intelligence officer, he tends to know what is going on in the cells as well or the quartermasters, for example, because they make sure the weapons get to the right place to carry out terrorist activities. Of course one cannot say we would have access to the information on every cell but if one was dealing with a major operation, which goes way beyond cell structure, I find it difficult to accept that we would not have had some sort of prior warning that there was a major movement of explosives or personnel.
Mr. Wallace: Of the people involved in the bombing of Dublin and Monaghan, I would have thought probably about six were still serving. The person who organised it, or the main organiser, had been convicted of possession of bomb-making materials a month before and had resigned from the UDR, but had been a UDR member up until then. Two others had been members of the UDR a short time before so there was quite a strong percentage.
Senator J. Walsh: Who would have controlled the informants within those paramilitary groups? Would they have been reporting to different agencies and personnel? At what level would that control have been exercised?
Senator J. Walsh: Also, to go back to an earlier question from my colleague on the knowledge Mr. Wallace would have acquired, throughout this document, and other similar situations, there would have been evidence to suggest that information within the remit of the security forces would not have been acted upon to prevent certain occurrences——
Mr. Wallace: That is true. In terms of agent handling, it depended on the value and the position the informant held. Quite often, low level informants were handled by junior officers, or indeed senior NCOs, but once the quality of information merited it, it would then be passed up through battalion, brigade and eventually would probably be handed over to one of the specialist intelligence people at Lisburn. One could almost judge the value of the informant by the person who was handling him.
The other thing to say is that because of the “need to know” principle, we did not know the names of informants, even from our colleagues. Everyone had code numbers so one was only dealing with a number. There was a fairly strong flow of information coming from a paramilitary group and that would indicate perhaps that both the Special Branch and the army were running agents inside that group at the same time. Sometimes, from my own experience, we were running the same person but we did not know it.
Senator J. Walsh: That unit had sources of information and presumably those sources were feeding information into the system, but Mr. Wallace mentioned the word “manipulation”. Would it be fair to say that the purpose of the unit was to try to ensure that actions were prevented——
Senator J. Walsh: ——which might have a political knock-on effect when one was trying to achieve something politically? Would it be fair to say also that sometimes actions would have been promoted through manipulation in order to achieve the same objective?
Chairman: Mr. Wallace, thank you very much for coming in today. Your contribution was very insightful and useful for the committee. I am very grateful to you for attending. We will see you, Mr. Ó Dúlacháin and Mr. O’Neill at 10 a.m. tomorrow morning.
Chairman: I apologise to representatives of the Pat Finucane Centre for the delay. I know they have spent a good deal of time here with families and with people who expected to be out of here by now. We apologise for that. Proceedings ran over but, unfortunately, that happens. I hope we can still do our business in an effective manner.
I welcome Mr. Paul O’Connor, Mr. Alan Brecknell and Ms Johanna Keenan of the Pat Finucane Centre. I would remind you that members of the sub-committee have parliamentary privilege but that privilege does not apply to the witnesses. I invite Mr. O’Connor to commence.
Mr. Paul O’Connor: We wish to thank the sub-committee for the invitation to make an oral presentation today. I especially want to acknowledge the attendance of a number of relatives from both sides of the Border here joining us. We do not intend to revisit every aspect of our written submission but rather hope to expand on certain aspects.
Senator J. Walsh: I ask that you hit the salient points because we received your submission only this morning and have not had the opportunity to analyse it thoroughly. Therefore, please ensure you hit all the salient points.
Mr. O’Connor: We will restrict ourselves to approximately 25 minutes. We understand you have had a long day and we will then take questions. The Pat Finucane Centre is a human rights NGO based in Derry. We are not aligned to any political party. The ethos of the group is anti-sectarian and non-violent. We believe human rights have been violated by all participants to the conflict in the North.
Work on the research project on collusion in Armagh, Down, Tyrone and the Border areas in the 1970s, including the murder triangle, has been ongoing since 1999. We call the project “The Recovery of Living Memory Archive”. Since 1999, we have been involved in extensive research including meetings with survivors, relatives, witnesses, elected representatives at the time, journalists, solicitors and clergy. In the course of this we have traced and spoken to witnesses and survivors throughout Ireland, Britain and as far afield as the United States and Sweden. We have also engaged in extensive correspondence with the Public Records Office, the Courts Service, coroner’s courts, the Director of Public Prosecutions, former secretaries of State, the Lord Chief Justice in the North and the Barron commission. Meetings have been held with former members of the RUC and British Army intelligence. Having spoken both to an RUC officer who carried out attacks and to an officer who investigated attacks, we believe we gained a unique insight into collusion at the time. In addition, we have been involved in protected correspondence with various divisional crime units of the then RUC and the present PSNI in Newry, Dungannon, Banbridge, Armagh, Lurgan and at headquarters. We have also accompanied family members to meetings with designated PSNI officers from various divisions where we have gained partial access to investigation files. We are convinced this research has yielded valuable results. It is on that basis we have made this submission and on that basis that we intend to impress on the members on this sub-committee that the events of 17 May 1974, which resulted in the deaths of 33 people and an unborn child, and injury to hundreds more, are connected to events prior and subsequent to the Dublin and Monaghan bombings.
The sub-committee has been given the task of recommending whether, according its terms of reference, “a further public inquiry into any aspect of the report would be required and fruitful”. It is our submission that a further public inquiry would be required, would be fruitful and, indeed, is unavoidable.
Mr. Alan Brecknell: Therefore, why are we sitting here today? On 19 December 1975, Donnelly’s Bar in Silverbridge, County Armagh, was attacked by loyalist paramilitaries. During the gun and bomb attack, three people were killed, 14 year old Michael Donnelly, Patsy Donnelly and my father, Trevor Brecknell. Many people also suffered horrific injuries. Earlier that same night, some ten miles away in Dundalk, Jack Rooney and Hugh Waters were killed and scores of others injured when another loyalist bomb exploded outside Kay’s Tavern in the town. My parents had moved to my mother’s home in south Armagh because they felt that Belfast, where my mother was a nurse, was too dangerous.
My sister Roisin was just two days old and my father was on his way home from hospital. He called in to Donnelly’s to have a celebratory drink with his workmates. It was the last Friday before Christmas. The car drew up with a number of men in it. Suddenly, the men opened fire outside the bar. Then they came inside and sprayed the customers with gunfire. Before leaving, they shouted “Happy Christmas, you Fenian bastards” and threw in a bomb which destroyed the building.
My father was originally from Birmingham in England. After his murder, his family in England were led to believe that their son had been killed by the IRA and were told that it would not be safe for them to travel to south Armagh for his funeral. His mother, my grandmother, went to her grave two years later believing this to be the case. His father, brother and sister now know that this is not so.
At the time of my father’s murder, I was seven years old, my brother was six and, as I have already said, my sister was two days old. Even at this young age, I was aware that local people believed that members of the security forces were involved in the attack. In 1999, the families of those killed came together and decided they wanted to know as much as they could about the murders of their loved ones. We had received no information from the RUC in relation to their investigation. This is when I contacted the Pat Finucane Centre.
We took statements from all those who were in the bar that night. For many, this was the first time they had been asked to give a statement. However, some of those who had spoken to the RUC investigating officer after the attack believed that he was a genuine and decent man and that he was determined to bring those who were responsible to justice. In January 2000, a meeting was held with this RUC officer, who had been promoted in the meantime to the rank of chief superintendent and was based at RUC headquarters. During the meeting, this police officer, who had led the original investigation, told us that members of the RUC and UDR had carried out the attack with loyalist paramilitaries, that details of the investigation were being leaked to a suspect in circumstances that he found suspicious - we should add that this man was also a suspect for the Monaghan bombings - that he, the investigating officer, became fearful for his own safety as the investigation progressed and that permutations of the same gang were involved in the bombing at Kay’s Tavern in Dundalk, the murders of Sean Farmer and Colm McCartney on 24 August 1975 at Altnamacken in County Armagh, the murders of the Reavey brothers, Whitecross, County Armagh, on 4 January 1976 and the Dublin and Monaghan bombings of 17 May 1974. This information made us realise that the events of 19 December 1975 were more than just a personal tragedy for five families in south Armagh and Dundalk.
Mr. O’Connor: In our written submission we argued that the Dublin and Monaghan bombings and the crucial issue of whether there was collusion in these attacks can only be understood within a broader context. Our core assertions are that permutations of the Glenanne group carried out a large number of terrorist attacks, resulting in dozens of deaths and hundreds of people injured with virtual impunity; that the failure to bring the perpetrators of Dublin and Monaghan to account enabled them to continue to perpetrate terrorist attacks on both sides of the Border; that the criminal justice agencies in Northern Ireland covered up the widespread activities of this group and that the activities of the Glenanne group demonstrate a culture of collusion and impunity in the mid-Ulster and Border areas in the mid-1970s, which thwarted attempts to bring charges against the perpetrators of the Dublin and Monaghan bombings.
I want to deal with the first two points together. Justice Barron referred to the Glenanne group. Permutations of the same group were responsible for a large number of fatal attacks throughout the mid-Ulster and Border areas in the mid-1970s, including the Dublin and Monaghan bombings and the bombings at Dundalk and Castleblayney. The gang operated out of a farm at Glenanne, Markethill, owned by James Mitchell, a member of the RUC Reserve. The group was predominantly made up of serving RUC officers and UDR soldiers. This group often operated with loyalist paramilitaries from the Portadown-Lurgan, Moy and Dungannon-Moygashel areas. The use of this farm was known to the security and intelligence community as early as 1972 - see Barron, page 176. Its role as a staging post for the perpetrators of the bombings in Dublin in 1974 is believed to have been known within a short period of time - see Barron, page 287.
It was at this farm that weapons were stored, bombs were made and attacks were planned. Despite its central role in relation to attacks in South Armagh and beyond in the mid-1970s, it was not until admissions were made by Constable William McCaughey in 1978 that the farm was finally raided. Although weapons, ammunitions and bomb-making components were recovered at the farm, Mitchell received a suspended sentence. The failure to bring the perpetrators of Dublin and Monaghan to account - our second allegation - enabled them to continue to perpetrate attacks on both sides of the Border.
The extent of the activities of the group is perhaps best demonstrated by focusing specifically on the cases that are linked to the Glenanne group. I invite Johnanna to make a contribution at this point and I want to ask if each member has his or her coloured chart.
Ms Johanna Keenan: I shall talk members through the three charts provided. These are not in the correct order so I will point to each one as I progress. First, I refer members to the chart entitled “Perpetrator Links”. This chart was compiled using information obtained from official sources, information relating to convictions and information about the alleged perpetrators of the attacks.
At the centre of the chart, in the grey box, are the Dublin and Monaghan bombings and the Miami Showband attack. As you will have seen from the Barron report, individuals from each of the four areas - Glenanne, Portadown, Annaghmore and Dungannon - in the red boxes were involved. Available information also points to individuals from each of the areas being involved in the Miami Showband attack. We should remind ourselves that these were perpetrated by a combination of security force personnel in collusion with loyalist paramilitaries.
The chart shows that the distinct groups were carrying out attacks independently of each other. A number of these attacks are documented in the yellow boxes. We have included a number of these attacks but believe there are many more linked. For example, we see that loyalist paramilitaries from Annaghmore and Dungannon were carrying out shootings and bombings throughout the period and many sectarian murders were also perpetrated by members of the Portadown UVF.
The green boxes demonstrate attacks when individuals from two different areas came together to carry out attacks. Of central relevance to this hearing today is the dark green box, outlined in red. These were perpetrated by individuals linked to Glenanne, that is, security force personnel, along with loyalist paramilitaries. These include gun attacks at family homes, gun and bomb attacks on bars, a bogus UDR checkpoint and car bombs. This evidences a special relationship between those operating out of Glenanne and the Portadown UVF. Seventeen people died and many more suffered injuries and trauma. Furthermore, individuals from Glenanne, Portadown and Dungannon came together to carry out the car bomb attack in Dundalk also currently under consideration by Justice Barron, which left two more people dead and is included in the blue box.
Why is this important? It is important because we are demonstrating that not only did individuals come together from various geographical areas to carry out the attacks at Dublin and Monaghan but that individuals came together on more than one occasion to perpetrate other attacks. If we take the Glenanne group and look at the boxes emanating from it, we can see that their activities, in conjunction with loyalist paramilitaries, resulted in the deaths of dozens of people. Literally dozens more were killed by loyalist paramilitaries in the other attacks documented in the chart. It is central to our argument that this not only should but could have been prevented.
The wider activities of the Glenanne group can also be illustrated by focusing solely on ballistic links. I now refer you to the chart entitled “Ballistic Links - Weapons”. If we take Glenanne as our starting point, again in the red box, we can trace eight weapons to the attacks carried out by this group. Four weapons, a Parabellum sub-machine gun, a Webley revolver, a Luger and a .45 ACP pistol, have been linked to attacks predominantly involving individuals from the Glenanne group. In addition, the Star pistol was used in at least one attack in which individuals from Portadown UVF and the Glenanne group came together.
Then we come to the Sterling sub-machine gun, a second Luger and a second Parabellum sub-machine gun in the centre of the chart. All of these weapons are linked to individuals from each of the four areas. Out of the perpetrators’ links chart, this chart demonstrates the other activities of the various groups carrying out attacks independently of each other. We see clearly through the three central boxes that there was co-operation between the four areas in terms of the weapons they were using to carry out multiple murders. These attacks include some of the most notorious killings of the conflict, including the Miami Showband attack, the murder of several members of the Reavey and O’Dowd families and the killing of both parents in the cases of the Mullan, McKearney and Devlin families. This is a graphic example of the extent of co-operation between individuals operating in the various areas throughout the mid-1970s, as they had in Dublin and Monaghan in 1974. We should remember that while we are looking at charts and data and colour codes, these weapons have a real and horrific meaning for families in this room today who witnessed at close hand family members being killed with these weapons.
If we now turn to the chart entitled “Ballistic Links - Attacks”, we can begin to see the human cost of the activities of the groups as evidenced by links made solely by virtue of confirmed ballistic links. For purposes of clarity we have inserted the attacks perpetrated using each individual weapon in boxes coloured to correlate to the previous chart. For example, the bright blue box at the top left of each chart demonstrates that a Webley revolver was used in the murder of Seán Farmer and Colm McCartney at Altnamackan and in the murder of three brothers from the Reavey family.
We focused on the attacks using weapons linked to the Glenanne group by tracing the arrows emanating from the Glenanne box. In these attacks alone, 30 people were killed, killed with weapons linked to the policemen and soldiers operating out of Glenanne. Again, the boxes on the right hand side of the chart document other attacks linked to individuals from the Annaghmore and Dungannon areas resulting in many more deaths.
You may wonder what relevance this has to the work of this sub-committee, after all no weapons were used in the Dublin and Monaghan attacks. However, we believe that this is of key relevance to you in your determination of whether further inquiry is required. The ballistic links charted here, to use the words of Justice Barron on page 285 of his report, demonstrate “part of a continuous course of conduct existing since at least 1973”.
The Dublin and Monaghan bombs were not a one-off event in terms of the coming together of members of the security forces and loyalist paramilitaries. The individuals came together on numerous occasions, as clearly illustrated by the ballistic links outlined in these charts, to carry out multiple murders. Significantly, it should be noted that the majority of the attacks documented in the chart took place in the two years subsequent to the Dublin and Monaghan bombings. The failure to bring the perpetrators of those bombings to justice clearly had fatal consequences for subsequent victims.
These links become all the more relevant in light of Mr. Justice Barron’s findings that weapons “were obtained from some central quartermaster to whom the guns were returned after use”. Other information at the same time suggested that whoever the quartermaster may have been, the guns may have been kept at James Mitchell’s farm at Glenanne, to which Appendix 3 of the Barron report refers. This is corroborated in other information provided to the PFC. In the case of Donnelly’s Bar, for instance, the PSNI has recently admitted that the attackers returned to Mitchell’s farm after carrying out the attack.
Mr. O’Connor: This brings us to our third point, the response of the criminal justice system in the widest sense of those tasked with investigating wrongdoing - the RUC at the time - those charged with prosecuting wrongdoers - the Director of Public Prosecutions - and those whose responsibility it was to judge and sentence anyone convicted of a crime - the Judiciary. We contend that the criminal justice agencies of Northern Ireland covered up the widespread activities of this group. In a memorandum submitted to this committee, the Secretary of State, Paul Murphy, stated “it is a matter of record that some members of the RUC and UDR were convicted of collusion with loyalist paramilitaries in 1970s.” The fact that they were successfully prosecuted and convicted indicates that the authorities in Northern Ireland took such matters seriously - paragraph 15 refers.
It is reasonable in our view to extrapolate from this that if there is evidence that the authorities failed to fulfil their legal obligations to successfully prosecute and convict members of the security forces who colluded, then that is evidence to the contrary, that is, the authorities did not take such matters seriously. Does such evidence exists? It does in abundance. It is our contention that the actions of two Chief Constables, the Office of the Director of Public Prosecutions, the then Lord Chief Justice and the Northern Ireland Office raise the most serious questions in regard to the Glenanne group and the rule of law.
Contrast the Secretary of State’s assertion to this committee with the reality. In 1976, Joe McGleenan was the owner of a small rural bar, the Rock Bar, just 15 minutes drive from Glenanne. In a night in June of that year a car stopped outside his pub. Several men alighted from the vehicle just as a customer, a local farmer, was leaving. They opened fire and left him seriously wounded. They then placed a bomb at the door and fired through the window into the bar with a submachine gun.
Such events regrettably were not unusual in the North. What was unusual was the employment status of the gang. All were members of the RUC. The second getaway vehicle was a police car. The police radio was used to clear the escape. One of the perpetrators even boasted that they were back in the police station in time to get the emergency call. As a measure of how seriously the authorities took such matters - to quote what the Secretary of State said to this committee - the trial judge, the then Lord Chief Justice, who misrepresented the facts of the case, in his summing up——
Chairman: I accept he is deceased, but we would not like to even libel a deceased person, such a person’s representatives cannot come here. We do not have the facilities to allow that type of refutation. I ask you to bear that in mind.
Mr. O’Connor: Okay. The Lord Chief Justice who, in his summing up, presented the facts of the case in a way that did not reflect the reality of what happened that night, then demonstrated how seriously he regarded an attempt at mass murder carried out entirely by serving RUC officers. Three of the accused received suspended sentences. One of those who walked out of court that day in 1980, a key member of the Glenanne group, faced further charges in regard to the Donnelly’s Bar atrocity where Alan’s father was murdered. In the most bizarre of circumstances, these were dropped by the Director of Public Prosecutions using a legal mechanism, a nolle prosequi. The British Attorney General has since confirmed to us that the DPP was not empowered to issue this direction. The Rock Bar attack was therefore portrayed as a one-off incident not linked to the wider activities of loyalist paramilitaries. Ms Keenan has already referred the sub-committee to the ballistic histories of the weapons used. Had the charges in relation to Donnelly’s bar proceeded, a web of collusion would have become evident, inevitably linking back to Glenanne and the Dublin and Monaghan bombings. Meanwhile, Joe McGleenan, the bar owner who later became an SDLP councillor, was advised not to attend the trial and heard no more. At least one of those convicted is now receiving his police pension.
Lastly, we went on to assert that the activities of the Glenanne group demonstrate a culture of collusion and impunity in the mid-Ulster and Border areas in the mid-1970s which thwarted attempts to bring charges against the perpetrators of the Dublin and Monaghan bombings. The Rock Bar trial and the circumstances under which charges were dropped are a case in point. The actions of the Lord Chief Justice and the Office of the DPP are questionable in this case.
Another graphic example concerns the murder of Seán Farmer and Colm McCartney on 24 August 1975, only three weeks after the Miami Showband massacre. As thousands travelled home from the GAA all-Ireland semi-finals in Dublin - as some of the members may remember, Dublin was playing Derry in the senior match and Tyrone faced Kildare in the minor match - GAA fans Seán Farmer and Colm McCartney were stopped at a bogus security forces checkpoint in the townland of Altnamackan in south Armagh. They were taken from the car and Seán was executed, shot in the back of the head. Colm made a run for it but he, too, was cut down. The attackers fled. Within minutes, other car-loads of supporters came on the scene. Deeply shocked, they drove on to Keady, where they reported the murders to Keady RUC.
What do we now know about these terrible events and what do they tell us about the investigation? We know that the witnesses had their names and addresses taken but were not called to the inquest, were never asked to give statements and heard no more until we traced them many years later. One of the witnesses was a cousin of the deceased and of Seamus Heaney, who later wrote a poem about the murders. We know that a regular police patrol drove through the bogus checkpoint almost an hour before the murders and realised that the checkpoint was illegal. Despite this realisation, documented in its own statements, no action was taken and no helicopters were scrambled. Instead, it confirmed by radio that the checkpoint was not official and continued on its way. Those manning the checkpoint meanwhile felt no need to flee the scene despite having been rumbled by three police officers. They stayed for almost an hour.
We know that a witness - a civilian - was standing concealed by a hedge when the murders took place. The RUC interviewed this witness. However, this evidence was suppressed and withheld from the inquest and the families. They were only made aware of the existence of this witness when it was inadvertently let slip during a meeting with the PSNI that we attended with family members. To this day, the PSNI has refused to divulge the full contents of the witness’s statement. This is perhaps to be seen in the context that the PSNI admitted at the same meeting to us that its chief suspect in this double murder was a serving police officer. That officer, whose name we are aware of, was a key member of the Glenanne group. Had the evidential trails been followed both in terms of perpetrators and ballistics, this would have inevitably led back to the Miami Showband attack, back to Glenanne and back to the Dublin and Monaghan bombings. One example of non-investigation and failure to prosecute is unfortunate; multiple examples point to the existence of a culture of collusion and impunity in the area.
Let us return briefly to the memorandum submitted to the sub-committee by the Secretary of State and endorsed by the Chief Constable. It makes the claim that there is no evidence that senior members of the security forces were aware of and condoned the activities of those individual RUC and UDR members who were involved in collusion with the loyalist paramilitaries. The presumption of this statement is that senior members of the security forces were unaware of the activities of those who were involved in multiple attacks on both sides of the Border and emanating from Glenanne. Colin Wallace disputes this, as does John Weir. Were senior officers unaware who the chief suspects were - members of the UDR and RUC, some of whom had intelligence links - and unaware where they operated from, a farm that was mentioned in intelligence reports from 1972 onwards?
The Glenanne base essentially functioned as a drop-in centre for the RUC, UDR, British Army and for loyalist paramilitaries. According to Mr. Justice Barron, it functioned as a major UVF arms dump and the Secretary of State would have us believe that senior officers were unaware of this. Were senior officers also unaware of the ballistic histories of the weapons used at the Rock Bar, at Donnelly’s, at the Reavey’s, at the O’Dowd’s in Altnamackan, where the two GAA supporters were murdered, in the killing of John Francis Green, when the children of three families, the Mullan’s, McKearney’s and Devlin’s, were left orphans, or at the Eagle Bar, at Tully’s and in the Miami ambush?
Mr. Justice Barron notes that, following police interviews with a number of the Glenanne suspects in 1979, “what can be said is that in relation to the attacks on Donnelly’s Bar ... , John Farmer and Colm McCartney, the Reavey family, and the O’Dowd family, information was given by one or more of the interviewees which confirmed Weir’s account of who was responsible in each case.” Senior officers will have been aware of the startling information which emerged at those interviews. Indeed it is difficult to believe that the Chief Constable, the general officer in command of the British Army, the Director of Public Prosecutions and the Secretary of State would not have been advised that there was evidence that members of the RUC and UDR had been involved in crimes of the most serious nature.
Mr. O’Connor: The activities of the Glenanne group in late 1975 and early 1976, the attacks at Donnelly’s Bar and Kay’s Tavern in Dundalk, and the multiple murders in the O’Dowd and Reavey households, were followed by the murders of ten workmen by republicans at Kings Mill. These events brought the North to the edge of the precipice. Members of the security forces played a key role in this chain of events and yet we were asked to believe that no one at a senior level was aware of this.
It might be argued that senior officers may have been aware of certain activities but did not condone them. In this context, it is appropriate to ask two final questions. When this information did emerge at interview, what action was taken? Did a rigorous investigation take place followed by multiple prosecutions and convictions? Nothing could be further from the truth. As a result of the 1978-79 interviews, a damage limitation exercise was undertaken through a careful selection of charges which eventually led to the farce of the Rock Bar trial. We contend that the security and intelligence community was aware of the activities of this group.
Chairman: Mr. O’Connor, I am going to have to ask you to cease at this point. Allegations are being made about the conduct of trials which cannot be addressed in this forum. Could you please make your final points when we will then proceed to questions?
Mr. O’Connor: ——I will give one example of what I am referring to in the Rock Bar trial. The farmer who walked out the door at the Rock Bar confronted the gang, not knowing it was there. He was called Michael McGrath. One of the gang opened fire and shot him in the stomach with a sub-machine gun at close range. He was charged with attempted murder. That charge was changed to grievous bodily harm because the man did not die, and the judge at the trial said - I am simply quoting from the judge’s own comments - he accepted that the accused did not mean to murder the man when he shot him in the legs. He was not shot in the legs; he was shot in the stomach at close range but of course the witness was not there to challenge this because he was instructed by the RUC beforehand not to attend the trial. That is one example, of which there are many. We have the summing up, but I will not make any references to any individuals. I will be finished in two paragraphs, if you will bear with me.
Chairman: Again, we cannot make any insinuations or references to trials, what was said or what a witness who did not attend might have said. It reflects badly on individuals who are not here to protect themselves. We are not in a position to adjudicate in any way. We are in danger of ending up in the High Court, which is the last thing I want. Help us out on this one please, Mr. O’Connor.
Mr. O’Connor: I accept that there are difficulties and I also accept that we are being extremely careful not to make any assertion that we cannot absolutely back up. We are working off official documents.
Chairman: That is fine but I do not want that to have to be done in court. Our terms of reference are well known to you, Mr. O’Connor, and I would appreciate it very much if you would stick to matters which refer to those terms of reference.
Mr. O’Connor: In light of what I have highlighted, to simply assert that senior officers were unaware of the activities of the Glenanne group and did not condone their activities is not good enough for the families of those who were murdered in the incidents. The sub-committee is being asked to recommend whether a further public inquiry into any aspect of this report would be required and fruitful. We submit that a further public inquiry would be required and that it would be fruitful.
Our own work over the last four years has convinced us that there is ample evidence that, where even a group such as our own can research these activities, a public inquiry would be the appropriate mechanism to do so. I have left out a number of paragraphs that may cause difficulty.
Chairman: I appreciate that and thank you, Mr. O’Connor. I know about the great work your NGO does with limited resources, having to look around for help and assistance. It is difficult, and I appreciate you coming here and making that statement. I am sure that it will help us in our deliberations. The sub-committee has agreed that questions will be funnelled through two of its members, Deputy Joe Costello and Senator Jim Walsh.
Deputy Costello: I thank the representatives of the Pat Finucane Centre for making such a fine presentation. They are very welcome, and I also note the good work that they do. My first question relates to the links between ballistic attacks, weapons and their perpetrators, and I wish to explore that a little further with Ms Keenan. If we take the first page and the various linkages noted in it, is Ms Keenan saying there is an overall link in terms of ballistic and attacks between Glenanne, Portadown, Belfast, Dungannon and Annaghmore and that an interchange of weapons can be ballistically shown?
Ms Keenan: Basically, what we are trying to show in these charts is that there were four independent groups operating in each of the different areas which had their own activities, but there was a relationship between them, and on occasion weapons were used by individuals from each of those different areas——
Deputy Costello: The first chart relates to weapons that can be connected to five groups - Glenanne, Portadown, Belfast, Dungannon and Annaghmore - in various attacks. While Glenanne would, apparently, have been the central and most active, there was some sort of loose connection. Is that what Ms Keenan is saying?
Ms Keenan: We are not necessarily saying that Glenanne is the most active, but there is a unique dynamic there, and we are trying to demonstrate that serving security force personnel had a special relationship with the Portadown UVF in particular but also with individuals from these different areas. The ballistic links have emerged from Appendix 3 in the Barron report and from the PSNI in meetings and correspondence with us. There are overlaps in these attacks, both in the weapons used and between individuals who perpetrated the attacks.
Ms Keenan: Ted Sinclair’s farm is actually named in Appendix 3 of the Barron report as a location where a number of these weapons were recovered. We use the word “Annaghmore” to encompass the group which was operating loosely in that area of which his farm was an essential element. They had a closer relationship with Dungannon than with Glenanne but there were times when weapons that had been used in attacks by people in the Glenanne group were then recovered in Annaghmore.
Deputy Costello: Finally, we come to deal with the ballistic links with all of the weapons. Have you determined, in relation to the various weapons mentioned, which weapons are Army type and which are available from other sources to paramilitaries?
Ms Keenan: We are still trying to clarify that. The only one that really comes out looking like it could be is the Star pistol because of its unique nature and generally the fact that it is a special forces weapon.
Deputy Costello: This area of your presentation deals with weapons and attacks with guns. What we are dealing with, of course, is a bomb attack. You have not presented us with any information on car bombs in the Republic of Ireland. Do you have information on the type of material used for home-made or commercial bombs?
Mr. O’Connor: That is not what we have pursued. It is our understanding that Justice for the Forgotten were pursuing the issues related to this jurisdiction. As we all know, we are waiting for Mr. Justice Barron to report on the Dundalk bombing. We pursued those issues up North which are within our remit but we asked for meetings on behalf of families.
Deputy Costello: This is certainly very interesting new information for which I thank you. Another aspect of our brief is to see whether a further public inquiry would be either required or fruitful. You have not elaborated on that issue to any degree other than to state rather baldly that there should be a further public inquiry. A further public inquiry, as presented to us by a number of people who made submissions, would require co-operation by the British authorities and Northern Ireland and access to original documents and files which have not been accessed. Do you have any comment to make on the likelihood of an inquiry being successful in accessing that necessary documentation and co-operation?
Mr. O’Connor: It would certainly be our view that our work over the last four years has actually produced results. I can best characterise it as such: when we began, you could say we were looking down a long corridor with closed doors. We have opened a considerable number of those doors. We have opened some of them with the threat of legal action and we have opened some of them by using the mechanisms that are available. For instance, the PSNI has a set of guidelines governing the type of information that relatives now have a right to. We opened those doors by going down what was for us an unusual route of asking for meetings with the PSNI. At those meetings, often quite startling material would emerge. I have referred to the fact that we have discovered that there was actually a witness at the Altnamackan massacre whose existence has never been admitted to. Another example of what can emerge and a matter that could be further inquired into relates directly back to Mr. Justice Barron’s work. He put a question to the PSNI and asked for information on the multiple use of weapons by loyalists in the mid-Ulster area. He dropped back a significant amount of information but the way the question was posed, the PSNI chose to restrict their understanding of mid-Ulster. The information that was not supplied to him but which we received officially at a meeting with them was that, for instance, the weapons used in the murder of the O’Dowd family were also used in the Miami massacre. The O’Dowd attack was connected to the Reavey attack which emanated from Glenanne.
We see an abundance of issues that could be inquired into further. On a daily basis we find different ways of getting answers to questions in the North from different authorities, such as the Director of Public Prosecutions. It took a long time to get the trial transcript for the Rock Bar. We did eventually get it. We have pieced together a significant part of the jigsaw. We will continue to do so and if there is an inquiry, we believe that families in the North who are seeking information would have important and vital information to supply to that inquiry.
Deputy Costello: I do not believe that your are not making good progress or doing good work. However, would a trial transcript not be available for public disclosure? There might be an attempt to not make it available but surely——
Mr. O’Connor: If I offered you the different reasons we were given as to why we could not have a trial transcript, we would be here until 6 p.m. One of them was that there were four transcribers and that one of them had a problem with his arm. That reason was given for a year as to why they could not transcribe it, etc. The Office of the Lord Chief Justice - I will be legally very careful - informed Mr. Joe McGleenan who owned the Rock Bar, which was attacked by four serving police officers, that if he wanted to find out what sentences they received he should consult the contemporaneous press reports. We did not leave it at that; we have now got the criminal conviction certificates.
If I might hark back to a different case that has been mentioned today, namely, Judge Cory’s inquiries and the Pat Finucane case. Two months before Sir John Stevens was due to report, he suddenly received 20,000 documents that had been withheld from him. The documents do re-emerge; there is documentation. It can be sought.
Mr. O’Connor: The type of information we seek would be inquest documents, witness statements and partial access to police investigations. We seek full access, we get partial access. It is our belief that information that has been refused us to date will eventually emerge because at the moment we have a number of separate legal actions ongoing through judicial review in the North.
Mr. O’Connor: The Police Ombudsman from Northern Ireland has discretionary powers to look at allegations of criminal misconduct by officers who may have left the force in the past. It is a discretionary power. This is clearly a very serious matter which would in all probably receive a positive answer. The problem with the Police Ombudsman, for whom we have some regard and with whom we have co-operated, is that even where she is working on just one case, it can take three years. We recently worked on the case of Sean Browne, the GAA man in Bellaghy, County Derry who was murdered in 1997. That case took three years to come to fruition, so it is not necessarily a route. The problem with the Police Ombudsman is that she is not empowered to look at the activities of alleged members of the UDR and British Army or loyalist paramilitaries, she can only look at allegations against police officers.
Mr. O’Connor: We have unofficially discussed the case with her. However, we would not pursue that avenue because there is only a very limited section of the case that she could pursue and that is exclusively the part which pertains to police officers.
Mr. Costello: I have one final question. Mr. O’Connor’s final comment on the summary of conclusions was a little weak given the strength of the centre’s presentation on the various reasons collusion might have taken place. I quote:
Is not that what we are seeking to establish? Is not that our starting, rather than our concluding, point? Is it possible that all the things that were said about Glenanne etc. could be due to a number of rogue elements in the UDA, UDR and RUC? Can it be said that even at the time of the Dublin and Monaghan bombings there was quite a difference between the political perception in the main UDA and UVF thinking and what Mr. Justice Barron seemed to perceive as the thinking of a breakaway group which was down here?
Mr. O’Connor: We seriously dispute the entire theory of the “bad apple” explanation of rogue elements. Anyone who talks about the “bad apple” theory usually adds “the bad apples who were rooted out”. Therefore, the Rock Bar is often offered as an example of how they rooted out bad apples. I submit to the sub-committee that police officers who are found guilty of attacking a bar with a bomb and submachine guns and who attempt mass murder and receive suspended sentences are not examples of the rooting out of bad apples. That is not evidence that evidence of collusion is being taken seriously. We should particularly take into account the fact that in respect of the attack there were charges against at least one of the police officers involved which related directly back to the attack on Donnelly’s Bar. Those charges were dropped under a mechanism which the DPP was not entitled——
Mr. O’Connor: The evidence does not point to a rooting out of bad apples. We contend that the activities at Glenanne, which continued from 1972 to at least 1978, were known to the security and intelligence community and nothing was done.
Senator J. Walsh: I join in the welcome to the deputation from the Pat Finucane Centre and to Mr. Alan Brecknell, who I am sure found it as difficult as other family members to recount matters when the scars are still wide open. I join the Chairm an and other members who complimented the Pat Finucane Centre on its persistence in pursuing human rights issues in Northern Ireland.
In the first paragraph on page 2 of the centre’s submission, it is stated under the heading “central allegations” that there were a large number of fatal attacks across the mid-Ulster and Border areas throughout the mid-1970s. The group involved is said to have consisted of members of the UDR and the RUC. On what basis is that statement made leaving aside the contents of Mr. Justice Barron’s report and evidence from Mr. Colin Wallace?
Mr. O’Connor: We would allege that the culmination of the activities of this group was in the Rock Bar trial which involved four police officers, a number of whom were members of the special patrol group whose task was to combat terrorism in the area at the time. The police have admitted that a police officer was their chief suspect in the Altnamackan murders. His name is known to us, but we are not going to divulge it today. We know that a police officer was one of the suspects in the Donnelly’s Bar attack as was a member of the UDR. Mr. Brecknell has referred to the meeting we had with the police officer who investigated the Donnelly’s Bar attack and I refer the sub-committee to what he said. According to that officer, Donnelly’s Bar was attacked by members of the RUC, UDR and loyalist paramilitaries. He also said the same group and permutations of it were involved in the attack on the Reavey household, at Altnamackan and in the Dublin and Monaghan bombings. He did not specify the O’Dowd household, but we linked it in. A serving officer at RUC headquarters said that to us.
Mr. O’Connor: Finally, if one does the ballistic trace on the weapons used in the Rock Bar attack, they can be traced back to Donnelly’s Bar, Reavey’s and Altnamackan, while the weapons used in the other attacks were used in the O’Dowd and Miami attacks as well as in the murders of the McKearney parents, the Mullen parents and others.
Senator J. Walsh: In the next paragraphs, the witness mentioned that the members of the group had been able to perpetrate terrorist attacks with the knowledge of the RUC and intelligence officers etc. Given the remit we have on this issue, and in particular module five where we are looking to see if there are matters needing further inquiry, how would collusion have operated in practice on the ground, in so far as it relates to the Dublin and Monaghan bombings and the activities of the Glenanne group in that regard?
Mr. O’Connor: It would probably be helpful if we first saw something specific which would possibly be unusual. We do not believe that collusion was an issue involving the entire RUC, UDR or British Army, along with all the structures and criminal justice agencies. We believe that collusion existed because some people knew that bad things were happening, but were too terrified to intervene, while others knew that bad things were happening and reluctantly thought them necessary in the war against the IRA. Some others, we believe, participated directly in collusion. That would approximate very much to John Stephens’s definition of collusion. We have already seen that there was a link from Glenanne to the Dublin bombings. We know from the report who owned the farm at Glenanne, and his status within the security forces. The sub-committee is aware of the evidence presented by ourselves and others of the centrality of Glenanne to the activities of the group. I would be very hesitant today to suggest that we have a clear understanding that this is exactly what happened at Glenanne. We have read what John Weir has said, and we note, in terms of reference of a future public inquiry, that the judge said that John Weir’s allegation deserves serious consideration. We ask ourselves where it should be given such consideration, if not in an inquiry. John Weir appears to have been correct in his allegations about Glenanne.
Senator J. Walsh: I have a question to which the response might be a simple yes or no. If no, then we need not elaborate. Has the witness any information on where the Glenanne group might have been sourcing its bomb materials, or any evidence of the group’s capability to undertake such a mission?
Mr. O’Connor: We are aware of the allegations that explosives may have been supplied by a UDR captain and have spoken at length of them to John Weir. Mr. Justice Barron notes that this may not have been possible because this person did not have access to the explosives held in quarries, as they were usually delivered by police escort. When we read that, we felt that given the evidence of police collusion at the time, a police escort to a quarry in order to safeguard explosives may not necessarily have fulfilled its legal purpose.
Senator J. Walsh: At the bottom of page two of the submission, mention is made of the arrest by the RUC of a number of members. An attached note suggests that there would have had to be collusion or conspiracy between the RUC officers, the Director of Public Prosecutions and the Attorney General in this regard, and that seems a bit fanciful. I believe that ten RUC officers were arrested but only seven were convicted and I do not know what happened the other three. Also, on page 3 there is a similar question in the first paragraph on the activities of the Glenanne group. It states: “There is significant information available that demonstrates collusion ...” between the various forces. Further on it states: “Our research and that of other individuals ... reveals that the Glenanne group operated with virtual impunity”. Is there any evidence to back up that statement? I do not want Mr. O’Connor to repeat what he said but does he have any specific evidence that would underpin those statements?
Mr. O’Connor: The Senator will understand I feel somewhat constricted at this stage, and anything I might say in relation to the Rock Bar trial might overstep the mark. What I will do is supply the sub-committee with a summing up and the documents we have regarding the Rock——
Mr. O’Connor: It is not just the judgment on its own. It would be useful to supply the sub-committee with legal documents that have just gone into the High Court in Belfast in relation to why charges were dropped in relation to Donnelly’s Bar and why a nolle prosequi was entered. I have been passed a note by a colleague. We met one senior officer in the PSNI on a number of occasions. On one occasion we spent eight hours with him in a hotel asking questions with family members.
Mr. O’Connor: Yes, I will send that to you but to quote him, when we asked him was there collusion in the Donnelly’s Bar, the Reavey, the O’Dowd, the Altnamackan and the Rock Bar cases, his quote was that a blind man on a galloping horse could see that there was collusion.
Senator J. Walsh: I want to ask Mr. O’Connor about Chief Superintendent McCann, whom he met in connection with the Donnelly’s Bar shootings in Silverbridge. He asserted that in his belief permutations of the same group were responsible for the Dublin and Monaghan bombings. First, was there any follow-up to any of that and, second, was the information at the disposal of Mr. O’Connor conveyed to Mr. Justice Barron?
Mr. O’Connor: The follow up is that it was conveyed to Mr. Justice Barron because we considered his commission to be the appropriate authority to follow it up. We know Mr. Justice Barron attempted on a number of occasions to speak to that officer. The officer is no longer——
Senator J. Walsh: Further on is listed the number of the RUC officers that were arrested, based on the evidence of Constable William McCaughey. To Mr. O’Connor’s knowledge, how many of those would have been involved in the bombings? Also——
Senator J. Walsh: Mr. Justice Barron’s report mentions Constable William McCaughey. There is nothing new in that. I am asking Mr. O’Connor if any of the other names mentioned were, to his knowledge, directly associated with the bombings. The next paragraph states: “This has been portrayed by some commentators as evidence of the commitment of the RUC to upholding the rule of law, evidenced by the rooting out of the ’bad apples’.” This matter was also referred to by Paul Murphy in correspondence with us. It is on page 8 of Mr. O’Connor’s submission. I appreciate if——
Mr. O’Connor: I do not have any information available that the officers whose names I am looking at have been named on a Garda list in connection with Dublin. I am aware that a number of them have been named regarding other multiple attacks emanating from Glenanne, except for one who owned the farm and who plays the most prominent role throughout Mr. Justice Barron’s document.
Senator J. Walsh: My final question relates to a comment you made on page 11, which is also in the Barron report under the maxim that “my enemy’s enemy is my friend.” When and where did Brigadier Kitson make that statement?
Mr. O’Connor: It is my understanding - I can revert back to you with the document - it was made in a book he wrote about counter insurgency strategy. You asked me another question regarding the bad apple theory, which I have not answered.
Mr. O’Connor: Our justification for saying that surrounded the issue of the charges being dropped and of officers receiving suspended sentences having been convicted of a gun and bomb attack on a bar.
Senator J. Walsh: From your investigations in your various activities that you have looked at and from convictions that have been made in the North of personnel within the RUC and the security forces generally, to your knowledge to what extent does that type of involvement go up the chain of command within the British forces?
Mr. O’Connor: Several years ago, had I asserted to the Senator that there is substantial evidence of involvement of Special Branch, the Force Research Unit and the intelligence community in the murder of a prominent solicitor in Belfast, Pat Finucane, he might have said that I was exaggerating. As more evidence emerges in the Finucane case, it is proof of the pudding that the further we research the more documents come to light. One other aspect that plays a role is that the greater the research the more the agencies begin to point the finger at each other and contend the big boys and not they were involved. The Director of Public Prosecutions say it was up to the police, the police say it was not them but the DPP, the army, or whatever. That can also be a very useful exercise. However, had I alleged several years ago that there was extensive collusion in Pat Finucane’s case, the Senator might have thought I was exaggerating. I do not think anybody could doubt that statement today because it is difficult to find anyone involved in Pat Finucane’s murder who was not working for the intelligence services.
In view of this, we believe questions must be answered - I am referring to people who are dead and where there is an acceptance of their role. There are serious questions on what role Robin Jackson had in his relationship to the intelligence services, for instance, because Robin Jackson was directly involved in a murder at the O’Dowd household and many other murders and is implicated. There are questions surrounding others. At this point I am worried again as I look at the legal adviser to the team about whom I can and cannot name of those who are dead, but there are serious questions surrounding many of the suspects in Dublin and Monaghan and their relationship to the intelligence community.
I find we have erred on the side of caution. We have never published names. In fact, we have never gone public with our research until today. The further we look into this matter, the more horrified we become.
I thank the others - I do not know whether they are clients of the Pat Finucane Centre or victims and relatives of other cases - who have travelled with you today and for their attendance and forbearance with the length of time it has taken to get through everything. The next hearing is at 10 a.m. on Wednesday, 18 February 2004 when the sub-committee will commence with Justice for the Forgotten in Module 5 of its programme.
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