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The Bloody Sunday Tribunal of Inquiry - A Report by Professor Dermot Walsh for the Bloody Sunday Trust {part 3}

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Text: Prof. Dermot Walsh ... Page Compiled: Fionnuala McKenna
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Importance of Bias
It is a fundamental principle of fairness that a body must not be affected by bias when discharging a judicial function. Not only does this mean that the body must be free from actual bias in the discharge of its function, but also that it must not convey the appearance of bias in the discharge of that function. In this context the mere appearance of bias is just as fatal as actual bias. Indeed, a decision taken by a body in the exercise of a judicial function will normally be declared unlawful where it is shown that the decision was affected by actual bias or the appearance of bias.

It can be argued, of course, that a Tribunal of Inquiry appointed under the 1921 Act is not a judicial body in the sense that it has not been established to reach a final judicial determination on an issue that is in dispute between two adversarial parties. It is essentially an investigative body whose primary task is to establish the facts of what happened in an event where the actual facts are hotly contested. It issues a report on the facts rather than a judgement or decision in favour of one party and against another. While this argument may be effective in protecting the Tribunal's Report from a formal judicial review on the grounds of bias, it does not mean that the issue of bias is irrelevant to the Tribunal's proceedings. The fact of the matter is that one of the fundamental reasons why a Tribunal of Inquiry is appointed under the 1921 Act is to secure public confidence in the truthfulness and fairness of its findings. If it so happens that the manner in which the Tribunal approaches its fact-finding mission is affected by the appearance of bias in favour of an individual party who has a vested interest in a certain outcome, it capacity to achieve this fundamental aspect of its task will be irreparably compromised. This danger is particularly apposite to the Widgery Tribunal of Inquiry as it took on so many of the trappings of a judicial body: it was chaired by the Lord Chief Justice, it identified two adversarial protagonists at the outset, it left the presentation of the evidence largely to these two parties, it conducted its proceedings along the lines of an adversarial trial and it delivered its report in a judicial style which found in favour of one party or the other on most issues.

It is not suggested here that the Widgery Tribunal was affected by actual bias in favour of the Army. It is submitted, however, that certain decisions taken by the Tribunal and the manner in which it approached key issues in the Inquiry conveyed the appearance of bias in favour of the Army. These matters are identified immediately below. The appearance of bias that they convey is sufficient in itself to disqualify the Tribunal from the task for which it was appointed.

Composition of the Tribunal
The Tribunal and Inquiries (Evidence) Act 1921 does not lay down any specifications on the qualifications of the person or persons chairing a Tribunal appointed under the Act. In practice, of course, the chairman will normally be a senior judge. He or she may be assisted by one or more persons. The critical factor is that the public have confidence in the members of the Tribunal to seek out the truth efficiently, successfully and without fear of or favour to any vested interest.

It would appear that the chairman of the Tribunal of Inquiry into "Bloody Sunday" was chosen because he was the Lord Chief Justice of the day. As such he could be expected to bring to the Tribunal the intellectual skills and legal experience necessary to root out the truth efficiently and successfully. His position would also place him above any hint of fear or favour. Unfortunately, however, Lord Widgery also happened to be a former officer in the British Army. The Inquiry, of course, was concerned with establishing the truth of the most serious and shameful allegations that were ever likely to be made against the British Army in peacetime. Findings against the Army on any significant aspect of the allegations would very seriously damage the proud image of the British Army at home and abroad to an extent unparalleled in its history. Moreover, it would represent a very serious political and military setback in the fight against militant Irish nationalism. Indeed, it is highly significant that the memo of the meeting between the prime minister, the Lord Chancellor and Lord Widgery actually records the prime minister telling Lord Widgery that: "[i]t had to be remembered that we were in Northern Ireland fighting not only a military war but a propaganda war."

It is not being argued here that Lord Widgery, as a former member of the British Army, was actually swayed by any of these considerations in his investigation and exposition of the truth. However, bias is not simply a matter of actual prejudice. Critically, it is also a matter of appearances. The reality is that many of those aggrieved at the actions of the British Army on Bloody Sunday will see not the Lord Chief Justice, with his distinguished record of judicial service, chairing the Tribunal. Instead they will see a former British soldier investigating very serious allegations against British soldiers in circumstances where adverse findings would be seriously damaging not just to the individual soldiers concerned but also to the entire image of the British Army. It is virtually inevitable that these people would have no confidence in a Report which exonerated the soldiers from any serious wrongdoing. In these circumstances it was a grave error to appoint the Lord Chief Justice as the chairman of the Tribunal. Indeed, it is respectfully submitted that the appointment brought with it an unfortunate appearance of bias which precluded the Tribunal from fulfilling the mandate with which it was charged.

This unfortunate appearance of bias is compounded by some of the material that was released for public inspection during the Summer of 1996. These documents included memos from the Tribunal Secretary to Lord Widgery concerning diverse aspects of the draft Report (see later). One such memo contained advice on how Lord Widgery should approach certain issues when drafting his Report. In particular, the Secretary drew Lord Widgery's attention to the "remarkable coincidence that the soldiers say they fired at gunmen behind the barricade and that the swab tests on all the people behind the barricade were positive." The Secretary minutes Lord Widgery's response as follows:

"LCJ will pile up the case against the deceased, including the forensic coincidence and the willingness of local people to remove guns, but will conclude that he cannot find with certainty that anyone of 13 was a gunman."
This minute is capable of a number of interpretations. At its very worst and most shameful it could be interpreted as evidence that the Lord Chief Justice himself was intent on presenting the case against the deceased in the strongest possible terms; i.e. he was consciously biased in favour of the Army. That interpretation is not being relied on here. Nevertheless, at the very least the minute suggests that Lord Widgery innocently, and presumably under the influence of the Secretary's memo, adopted an unfair approach to the presentation of the evidence upon which he based his conclusions. Irrespective of whether he adopted an unfair approach in fact, it is submitted that this appearance is sufficient in itself to impugn the credibility of the Tribunal's Report. How could any disinterested observer, having read the minute above, be confident that the Tribunal Report discloses the full truth of what happened on Bloody Sunday? More to the point, how could anyone who believed that the soldiers were guilty of murder on Bloody Sunday have their confidence in the Army, the government, and the rule of law restored by the Tribunal Report after reading the minute? Since a fundamental objective in establishing the Tribunal was to restore that confidence, it is clear in the light of the published evidence that the Tribunal has failed. Moreover, it is difficult to avoid the conclusion that, at least from the time it began to draft its Report, the Tribunal was so infected with bias that it was always going to be difficult for it to fulfil its mission.

Terms of Reference
The Tribunal of Inquiry gave a very restrictive interpretation to it terms of reference. The terms of reference were to inquire into:
"..a definite matter of urgent public importance, namely the events on Sunday 30 January which led to loss of life in connection with the procession in Londonderry on that day."
The Tribunal interpreted these terms of reference to mean that its purpose was:
" reconstruct, with as much detail as was necessary, the events which led up to the shooting of a number of people in the streets of Londonderry on the afternoon of Sunday 30 January."[29]
The limits of the inquiry in space were the streets in which the disturbances and the shooting took place. The limits in time were the period beginning with the moment when the march first became involved in violence and ending with the deaths of the deceased and the conclusion of the affair.[30] This was clarified during the hearings to include the operational plans that were made to deal with the march and the orders that were given to the soldiers before the march. The Tribunal specifically excluded moral judgements from its remit, holding that they were a matter for others acting on the basis of facts found by the Tribunal.

The first example of bias emanating from the Tribunal's approach to its terms of reference was the fact that these did not seem to embrace the political input to the events that led to the deaths. Despite the efforts of counsel for the relatives, the Tribunal refused to call as witnesses members of the security committee which was ultimately responsible for the decision to stop the march. The Tribunal also refused to examine the reasons behind the security committee's decision, despite the fact that it was taken in the face of advice to the contrary from the senior police commander for the area.

The Tribunal's refusal to consider this critical issue meant that one of the fundamental questions affecting the events was never answered; namely, was a political decision taken to use the march as an excuse to restore the hegemony of the security forces in the bogside? The refusal to provide an answer to this question meant, of course, that the Tribunal had shirked an important aspect of one of its fundamental tasks, namely to establish the full truth and satisfy the public that the full truth had been established. It also, however, displayed the appearance of not wanting to dig too deeply into the reasons why so many civilians should have been killed in a single Army operation which, at least on the surface (apart from the deaths), was no different from many similar operations which had preceded it. If the answer to the question posed was in the affirmative it would have lent considerable support to allegations that the primary objective of the Army going in was not a "scoop-up" arrest operation but a deliberate tactical device to smoke out and engage IRA gunmen. At the very least this would have forced the Tribunal to address the link between such a political decision and the cost in terms of civilian deaths which resulted. It would also have made it much more difficult for the Tribunal's Report to have presented many of the Army shootings as necessary, unavoidable and justifiable actions.

In short, the Tribunal's refusal to consider the admitted political involvement conveyed the appearance of protecting the British government and the Army against adverse inferences.

The second element of bias stems from the fact that the Tribunal Report did not consider all of the Army shootings which could have been considered relevant to the terms of reference. For example, it did not consider those shootings which occurred on the fringes of the Bogside, presumably because of the location in which they occurred and because they did not result in fatalities. It is worth noting, however, that the Tribunal did actually receive oral evidence about these shootings. Their omission from the Report entails an element of bias in the sense that their exclusion actually benefits the Army. As has been seen, the soldiers' performance in some of them involved firing shots at an unidentified target. Also, some of them involved claims by the soldiers concerned that they actually hit identified targets, despite the fact that there was no independent evidence of casualties.

Most of those who were injured by Army shooting were also excluded from consideration in the Tribunal's Report, presumably because the terms of reference were confined to the deaths. Since the wounded were injured by the same general firing that caused the deaths, their exclusion is inexcusable. Indeed, it is difficult to imagine a more blatant example of bias than the exclusion of most of the injured victims. Since there was no evidence to connect any of them with firearms or bombs it would clearly be in the interests of the Army to have them excluded. Moreover, their exclusion also had the automatic effect of concealing the full gravity and recklessness of the Army shooting in the space of that ten minute period.

The third element of bias resulting from the Tribunal's interpretation of its terms of reference concerned the Tribunal's inconsistent application of its own interpretation. At the very outset the Tribunal made it clear that the limits of the Inquiry in space were the streets in which the disturbances and shootings took place. In time, the Inquiry was limited to the period beginning with the moment when the march first became involved in violence and ending with the deaths of the deceased and the conclusion of the affair. During the Tribunal proceedings it was made clear that the actual planning of the military operation to stop the march was included. At no point during those proceedings, however, was it ever made clear that the Tribunal would also feel the need to make findings on the general security situation in the Bogside and Creggan during the previous six months. Nevertheless, the Tribunal Report included five substantial paragraphs containing very contentious and biased findings on the security situation in Derry during this period.[31] Highly selective material and grossly misleading figures were used to paint a picture of the Bogside as an expanding nest of snipers and vicious rioters who were gradually engulfing the commercial areas in the immediate vicinity and goading the Army into violent confrontation at every opportunity. No attempt was made to balance the picture by presenting the political, security, economic and social policies which had impacted harshly upon the local population thereby alienating them from the State and the security forces. Amazingly, no explanation was offered as to why "civil rights" marches were being organised in defiance if the ministerial ban. Similarly, no attempt was made to place the Derry civil rights march in the context of other civil rights marches. It is submitted that this issue was at least as significant to an understanding of the events of "Bloody Sunday" as any account of the security situation in the previous six months. If previous civil rights marches in defiance of the ban had passed off without the loss of 13 lives and 15 wounded, the Tribunal should at the very least have considered why the Derry march should have been any different.

The effect of focusing on the government's perspective of the security situation and ignoring the perspectives and experiences of the local population and the "civil rights" lobby was clearly biased in itself. The significance of this bias can be seen at several points throughout the Tribunal's Report. The most obvious occasions are when the Tribunal considered the plan to contain the march and the question of whether the arrest operation should have been launched at all. On both of these important issues the Tribunal's analysis is conducted against the background of the situation that the Army found themselves in. That situation, however, is the highly misleading one which has resulted from the Tribunal's biased account of the background. The net effect is that the Tribunal is able to convey to the reader the image of the critical decisions to stop the march and to launch the arrest operation as beyond reproach. A more balanced presentation of the background would have rendered such a perception much more difficult to sustain.

The bias in the background presentation also helps to present the Army shootings in a much more favourable light from the Army perspective than would otherwise have been warranted. The distorted focus on sniping and rioting in the Bogside area conveys to the reader a picture of the soldiers' lives being under direct and immediate threat from the moment they went in to effect the arrest operation. So, before the reader ever gets to the point where the soldiers open fire he is already being steered unfairly in the direction of a defence of justification. Worse still is the fact that the deceased and wounded, as residents of the Bogside, are tainted with suspicion before the reader ever gets to the point where each one of them is shot.

There was no need for this bias in the background presentation. Indeed, there was no need for the background presentation at all. If the Tribunal had applied its own interpretation of the terms of reference it would not have embarked upon this review of the background security situation. The Report would have been no worse for its omission. Indeed, the Report would have been considerably strengthened as a substantial and damaging element of bias would have been avoided. It is submitted that a Tribunal of Inquiry which goes beyond its own interpretation of its terms of reference to indulge in a very one-sided presentation of material that impacts substantially on important sections of its Report, is guilty of a bias which renders it impossible for it to achieve the fundamental objects for which it was appointed.

Location of Sittings
Since the events occurred in Derry and the large majority of civilian witnesses lived in Derry, the obvious and most suitable location for the Tribunal to sit was Derry. The Guildhall, seat of the Derry City Council, would have been admirably suited for the purpose and it was within easy walking distance for most of the witnesses living in Derry. This latter point was significant because of all the witnesses who gave evidence at the Tribunal, those from the Bogside and the Creggan would have faced the greatest practical difficulty in travelling to an out of town venue. They also happened to be the witnesses most critical of the Army.

The Tribunal decided to sit in Coleraine instead of Derry. According to the Tribunal's Report, this decision was taken on the grounds of "security and convenience".[32] These grounds did not receive any further elaboration. It was never made clear, therefore, whose convenience was being served by sitting in Coleraine. Certainly, it was not the convenience of those witnesses from the Bogside and Creggan who had made statements highly critical of the security forces. A decision in favour of the Guildhall would have enabled them to give evidence virtually on their doorsteps. Forcing them to embark upon a seventy mile round trip to a town which many of them would have considered alien and dangerous is about as inconvenient as it could get. The inevitable effect would have been to undermine both physically and psychologically their resolve to persist with the full force of their evidence. For the military witnesses, however, Coleraine would have been a much more suitable location as it was a town in which they would be welcome. There would also be the added advantage, from their perspective, of distance in space and cultural environment from the scene of the events which were under scrutiny.

In the absence of convincing justification it would be difficult not to conclude that the decision to sit in Derry was taken deliberately to convenience the Army and inconvenience the civilian witnesses critical of the Army. At the very least it would convey the appearance of bias in favour of the latter. The only other justification proffered was "security". However, no attempt was made to explain how sitting in the Guildhall would have been a greater security risk than sitting in Coleraine. Significantly, Lord Widgery admitted during the Tribunal proceedings that Derry would have been a better location, but that the advice he had received was to the effect that Coleraine would be preferable on the grounds of security. Although he did not say it specifically, this advice must have come from the security forces. An earlier draft of the Report makes it clear that the advice was given by the "Army commanders." Since the Inquiry was to be conducted into the conduct of the security forces, this only adds to the suspicion that the decision to locate in Coleraine as opposed to Derry was infected with bias in favour of the Army. Indeed, it is worth noting that the memo of the meeting between the prime minister, the Lord Chancellor and Lord Widgery states that:

"The Prime Minister said that it would have to be decided where the Tribunal should sit. It probably ought to be somewhere near Londonderry; but the Guildhall, which was the obvious place, might be thought to be on the wrong side of the Foyle. One possibility would be to find a suitable place a little distance away from Londonderry. The Lord Chief Justice said that he thought that the Tribunal would have to be held in Londonderry, so that people were not inhibited from giving evidence to it."
This clearly suggests that there was both political and military pressure to prevent the Tribunal from sitting in the Guildhall. The "wrong side of the River Foyle" is a reference to that side on which the shootings took place and in which the majority of civilian witnesses were living.

It is worth contrasting the approach of the Widgery Tribunal on the question of location to that of the Scarman Tribunal. The latter did not let over-sensitivity about security fears expose its proceedings to the risk of being seen to be biased in favour of one side or another. It had to investigate acts of violence which occurred at diverse times in Belfast, Derry, Dungiven, Armagh, Coalisland, Dungannon, Newry and Crossmaglen. In order to facilitate the submission of oral evidence from civilian parties the Tribunal actually moved from one location to another. It sat in Belfast to hear witnesses from Belfast, in Armagh for the convenience of witnesses from Armagh, Newry, Coalisland, Dungannon and Crossmaglen and, most significantly in this context, in Derry to hear witnesses from Derry and Dungiven.[33] If the Scarman Tribunal could sit in Derry there is no apparent reason why the Widgery Tribunal could not have done likewise. Since the Tribunal did not offer any convincing justification for its failure to do so, it would seem legitimate to conclude that the decision was taken to convenience the Army and, by the same token, to inconvenience those witnesses from the Bogside and Creggan who were critical of the Army.

Treasury Solicitor
A Tribunal of Inquiry appointed under the 1921 Act requires its own team of solicitors and counsel to function effectively. The reasons for this are succinctly summarised in the following passage from the Salmon Report:

"...the Tribunal's function is not only to report upon but to inquire into the matters which are disturbing the public. It is the Tribunal alone which is entrusted by Parliament to carry out this important duty on the public's behalf. And it is in the Tribunal alone which, for this purpose, the public reposes its confidence. The nature of the task of the Tribunal is therefore inescapably inquisitorial. In carrying out this task it cannot and should not be deprived of the services of solicitor and counsel, for their services are essential. But for them the Tribunal would have to interview the witnesses personally before hearing their evidence and descend into the arena at the hearing as they did in the Budget Leak Tribunal. This would in our view be in the highest degree undesirable."[34]
The practice has always been for a Tribunal of Inquiry appointed under the 1921 Act to rely on the services of the Treasury Solicitor. The Salmon Report observed that the Treasury Solicitor had "vast experience of public administration and also the entrée into all government departments." It considered that this would prove of tremendous benefit in the course of a Tribunal's investigation where it was often important to have detailed knowledge of how government administration actually functions. The Salmon Report recognised that the Treasury Solicitor comes into close contact with the government of the Day. This, of course might prove problematic if a Tribunal of Inquiry had to investigate a matter which could prove politically embarrassing for the government of the day. However, the Salmon Report also observed that governments come and go whereas the Treasury Solicitor and his staff are civil servants who carry out their duties impartially irrespective of which party is in power. Accordingly, there is no danger that reliance on the services of the Treasury Solicitor would bias a Tribunal investigation of a politically sensitive matter in favour of the political party that happened to be in power.

What the Salmon Report did not consider was the propriety of a Tribunal of Inquiry relying on the services of the Treasury Solicitor where the subject of the Inquiry was allegations made by Irish citizens about the actions of a central institution in the British establishment which enjoyed the firm political allegiance of both government and opposition. The Treasury Solicitor is in fact a body of solicitors who work full-time in the government service. They are civil servants whose primary function is to give legal advice and assistance to government departments. Accordingly, it would be difficult for an impartial observer to feel satisfied that the Treasury Solicitor was a suitable choice of solicitor to service a Tribunal whose function it was to investigate very serious allegations made by Irish people against the government's armed forces. At the very least the independent observer might suspect a conflict of interest. Indeed, the memo of the meeting between the prime minister, the Lord Chancellor and Lord Widgery states:

"The Lord Chancellor suggested that the Treasury Solicitor and the Cabinet Office should provide the secretariat for the Tribunal, and the Treasury Solicitor would need to brief counsel for the Army" (emphasis added)
It would be difficult to imagine a more clearcut conflict of interest than having a solicitor to an independent Tribunal of Inquiry briefing counsel for the very party whose actions were supposed to be investigated by that Tribunal. Nevertheless, the Treasury Solicitor was appointed to the Tribunal.

It is not being suggested here that the Treasury Solicitor acted with anything but the utmost professional integrity and impartiality in the course of the Tribunal proceedings. That, however, is not the issue. If his participation could reasonably be interpreted as conveying the appearance of bias in favour of the Army then that is sufficient to disable the Tribunal from discharging fully the task which it was set. It is submitted that the status and image of the Treasury Solicitor coupled with the nature of the Inquiry to be carried out by the Tribunal are sufficient in themselves to convey the appearance that the Tribunal would be biased in favour of the Army and, by implication, against those making the allegations critical of the Army.

Once again the contrast with the Scarman Tribunal is both stark and instructive. The Scarman Tribunal acknowledged the practice and the value of appointing the Treasury Solicitor to act for a Tribunal appointed under the 1921 Act. However, Lord Scarman also recognised the significance of the fact that the police were involved in the disturbances which his Inquiry had to investigate. Accordingly, he felt that it would not be fitting for the Tribunal to rely on the Treasury Solicitor to conduct the investigation. Although he did not spell it out, it is clear that Lord Scarman was concerned that the use of the Treasury Solicitor might convey the appearance that the Tribunal would not be totally independent and impartial in its investigation of alleged police wrongdoing. Given that the Widgery Tribunal was concerned with allegations against the Army, and that those allegation were very much more serious than those against the police in the Scarman Inquiry, it might reasonably have been expected that the Widgery Tribunal would have followed the example of the Scarman Tribunal. It certainly must have been aware of the fact that Lord Scarman felt it necessary to depart from the traditional practice of engaging the Treasury Solicitor. At the very least, therefore, the Widgery Tribunal should have explained its decision to engage the Treasury Solicitor and, thereby, to run the risk of appearing to be biased. Its failure even to acknowledge that there was an issue only fuels the appearance of bias that inevitably resulted from its reliance on the Treasury Solicitor.

The Secretary to the Tribunal
One of the most shocking and damning aspects of the material that was released for public inspection in the Summer of 1996 was the revelations of the extent to which the Secretary to the Tribunal had privately influenced the substance and presentation of the Tribunal's Report. It is to be expected, of course, that the Secretary would have assisted Lord Widgery in his work on the Tribunal's Report. It is equally to be expected, however, that his assistance would be confined to administrative tasks such as checking out details and references requested by Lord Widgery. Certainly, it would be beyond his role to actually advise Lord Widgery on the substantive contents of any of his conclusions, or on how those conclusions should be presented or supported in order to convey a particular point of view. Similarly, it would be no part of his role to identify the issue and review the evidence relevant to those issues. That task was discharged, very properly, by counsel for the Tribunal in his closing address to the Tribunal. It is outrageous, therefore, to find that the Secretary sought to exert quite a substantial influence over key issues in the Report.

The materials released in the Summer of 1996 include a number of memos from the Secretary dealing with various aspects of the Report and the Secretary's comments on various drafts of the Report. These reveal the Secretary:

identifying certain issues that will have to be covered in the Report in order to deflect criticism of its contents from quarters hostile to the Army;

eg. "Discrepancies between the evidence of the journalists and that of the soldiers when the report is published. The journalists will be on to it like hawks. For instance, there is a clear discrepancy between what Winchester says and what soldier F says. The LCJ should deal with this."

flagging aspects of the arrest operation which would have to be addressed in order to deal with the evidence suggesting that it was bungled;

presenting arguments to undermine counsel for the relative's success in undermining the forensic evidence against some of the deceased (indeed, he even goes so far as to misrepresent the forensic evidence against the deceased in pressing his objective);

"Mr McSparran succeeded in throwing doubt on the significance of the paraffin swab tests. But surely it should be said that it is a remarkable coincidence that the soldiers say that they fired at gunmen behind the barricade and that the swab tests on all the people behind the barricade were positive. Dr Martin's scrupulous fairness under cross-examination had the effect of giving a large slice of the benefit of the doubt to the deceased."

Adding a gloss (favourable to the Army) on parts of counsel for the Tribunal's summing up;

"There is no point in recapitulating Mr Stocker's analysis. But points which stand out in consideration of the attitude of mind of the soldiers are as follows:

a) Very active fire was going on when the Composite Force took up their positions.

b) Sergeant K fired at the two men crawling away from the barricade on the strength of the glimpse of a rifle butt. But he had a telescopic site. Furthermore it is recorded at page 87F of Day 15 that he was content with one shot, viz: he was content to stop the man from using his gun again.

c) L himself saw the rifle being pulled along by one of the crawlers and was also ordered to fire by his Platoon Sergeant. He was going forward to the aid of the wounded older man on the barricade when he was called back by his Platoon Sergeant.

d) Soldier M consulted soldier 039 before deciding one of the crawlers was carrying a rifle and opening fire.

e) Soldier C and Lance Corporal D confirmed one another's sighting of a gunman before firing at the window in Block 1 of the Rossville Flats.

Advising Lord Widgery on the slant (favourable to the Army) to put on parts of the Report's conclusions, and actually offering draft versions of some parts;

"There is a good deal of evidence that the initial firing on the soldiers included firing from sub-machine guns, probably Thompson sub-machine guns. The TSMG is a low velocity weapon, but it could hardly be described as a "light weapon". I wonder whether without invalidating your conclusion that the initial firing was not particularly heavy you could amend it to include a reference to some automatic firing."

"Here is an alternative version for the final paragraph of your Summary of Conclusions. I am not at all proud of it!

' There was no general breakdown in discipline. For the most part the soldiers acted as they did because they thought their orders required it. No order and no training can ensure that a soldier will always act wisely, as well as bravely and with initiative. The individual soldier ought not to have to bear the burden of deciding whether to open fire in confusion such as prevailed on 30 January. But that is only another way of saying that it is highly regrettable that the Army has to operate in support of the civil power. Responsibility for the tragedy lies at the door of those in Northern Ireland who systematically employ violence to try to make their views prevail.' "

"May I also suggest a strengthening of the second sentence of paragraph 9 as follows:-

'Some are wholly acquitted of complicity in such action; but there is a strong suspicion that some others had been firing weapons or handling bombs in the course of the afternoon and that yet others had been closely supporting them.'

My reason for suggesting the change is that I think that you thought that one at least of the men on the barricade had been firing, rather than that all three of them had been close to someone else who had been firing. There is also a minor objection to the text as it stands that it is open to the macabre comment 'Of course they were in close proximity to the discharge of firearms. They were close to the Paras.' "

Actually writing drafts of whole sections of the Report and making revisions to some drafts written by Lord Widgery.

The mere fact that the Secretary to the Tribunal should even attempt to influence the substance of the Report and its conclusions in this manner and to this extent is shocking. The whole purpose in appointing a Tribunal of Inquiry under the 1921 Act was, apart from the fundamental need to establish the truth, to ensure the public that the investigation would be carried out in an impartial, independent, professional and fearless manner. This assurance was essential to achieve that other primary objective in establishing the Tribunal, namely public confidence that the full truth would be exposed. It is expected that, in so far as it is possible, the proceedings of such a Tribunal would be carried out in public. That, of course, is a vital element in the Tribunal's capacity to satisfy its obligations to the public. It follows, therefore, that there should be no role for the Secretary of the Tribunal to work behind the scene, hidden from the public view and from counsel for the parties and the Tribunal itself, to seek to influence the Tribunal's interpretation of the evidence, the substance and presentation of the Report and the Report's conclusions. Such actions are hardly compatible with the obligations placed on the Tribunal and the manner in which they are expected to be discharged.

What is even more disturbing is the fact that most of the Secretary's suggestions are reflected in the published Report. Indeed, with respect to some of the Secretary's suggestions there is clear evidence to the effect that Lord Widgery accepted and acted upon them. For example, with respect to the point above concerning the conflict between journalist and Army evidence, the Secretary recorded Lord Widgery's response as follows:

"He accepts this. May deal with it by some selected examples (eg Winchester and F) of insoluble clashes between military and civilian evidence. This would follow on the analysis of the charge that Army was trigger happy ."
Furthermore, the point above concerning the forensic evidence drew the following bizarre record by the Secretary:
"LCJ will pile up the case against the deceased, including the forensic coincidence and the willingness of local people to remove guns, but will conclude that he cannot find with certainty that anyone of 13 was a gunman."
It is, of course, disturbing that Lord Widgery should accept and act upon the Secretary's suggestions, as that implies that the Tribunal's findings have been influenced by arguments that were not made in the course of its public hearings and tested in cross-examination by the parties affected. What is more disturbing, perhaps, is the fact that many of the Secretary's contributions seem to be motivated by the objective of presenting the Army case in a more favourable light than might otherwise have been the case in Lord Widgery's drafts. In the material that has been released for public inspection no example can be found of contributions from the Secretary that would seem to be motivated by the objective of putting the case for the deceased or injured in a more favourable light. In short, by accepting and acting upon the Secretary's recommendations the Tribunal has failed to deliver fully on its obligation to be totally impartial in ascertaining and presenting the full truth of what happened.

Police Files
Among the evidence obtained by the Tribunal were police files on all of the deceased and 13 of the 15 civilians who were admitted to Altnagelvin Hospital with gunshot wounds. These files were in addition to 9 pages of criminal records of the deceased and injured which were also obtained by the Tribunal. The first question that must asked with respect to these files and records is why the Tribunal was interested in them at all. They are not evidence of what happened on Bloody Sunday. At best (from the Army perspective) they could reveal whether any of the deceased had been convicted of firearms offences, or were suspected by the police of being involved in paramilitary activity. Either way they could not provide any credible evidence as to whether they had been shot justifiably on Bloody Sunday. Their prejudicial effect against the deceased and injured would be so great as to outweigh any possible probative value that they could have. It is very worrying, therefore, that the Tribunal saw fit to obtain these files and records and, presumably, took them into account.

Of course, it could be argued that the Tribunal was conducting an inquisitorial investigation and not an adversarial trial and, therefore, it was quite justified and necessary for it to make use of any available evidence that it considered relevant, including the police files and records on the deceased and injured. This argument would carry more force if the Tribunal had demonstrated a similar zeal with respect to other more cogent evidence, such as the witness statements gathered by the Northern Ireland Civil Rights Association. Much more disturbing, however, is the fact that the Tribunal does not appear to have obtained police and Army files and criminal records on the soldiers who took part in the Bloody Sunday operation. It is submitted that these would have been more relevant than files and records on the deceased and injured. The Inquiry was supposed to have been an investigation into the events which resulted in the 13 deaths. Surely background information on those who did the killings is more relevant for this purpose than background information on those who were shot. It may be, of course, that there were no police files and criminal records in existence for the Army personnel in question. All of them, however, must have had an Army record. It is difficult to avoid the conclusion that the Tribunal's failure to obtain these records reflects a bias in favour of the Army. Indeed, it conveys an impression, which is evident in various other aspects of the Tribunal's work, that the Tribunal was unduly concerned to build a case against the deceased and injured and thereby cast a more favourable light on the Army's actions.

There is an interesting side issue as to why the police should have maintained files (as distinct from criminal records) on so many of the deceased and injured, and whether the individuals in question were aware of the existence of these files. Counsel for the Army actually admitted during the Tribunal proceedings that, contrary to information released by the Army to the media, none of the deceased were on the wanted list. Since none of the wounded were arrested it must follow that they also were not on the wanted list. Of more immediate importance, however, is the fact that the Tribunal did not alert counsel for the deceased and injured that it had access to these files. This contrasts with the situation with respect to the criminal records of four of the deceased which were openly discussed during the Tribunal hearings. With respect to the police files, however, the Tribunals's silence meant that counsel for the deceased and injured did not have an opportunity to challenge the probative value of information in them which may very well have been highly prejudicial to their clients. The only party that could benefit from this silence, of course, was the Army. Once again, therefore, it is difficult to avoid the conclusion that the Tribunal's approach to its task was unnecessarily biased in favour of the Army.

Order of Closing Speeches
Since the Tribunal hearings were conducted primarily as a contest between the Army on the one hand and the deceased, wounded and citizens of the Bogside on the other, it should come as no surprise that there was conflict over the order of closing speeches. It was never in doubt that the final address would be made by counsel for the Tribunal. However, neither counsel for the Army nor counsel for the deceased wanted to open first in the order of closing addresses. Each was acutely aware of the value of being able to respond to points made by their opponent in his closing address. This advantage was only going to be available to one party, namely the party who went second. In the end Lord Widgery settled the matter and, perhaps, it may come as no surprise to the reader to learn that the decision was in favour of counsel for the Army. It is not being suggested here that this decision actually had a substantial impact either on the outcome of the Inquiry or on the fairness of the procedures. Although counsel for the Tribunal did make full use of the advantage to respond to many of the points made by his adversary in his closing address, it would be difficult to assert that this had any significant impact on the Tribunal's conclusions. The real significance of the decision emerges when it is placed in the context of the other quasi-procedural decisions that the Tribunal had to make - location of sittings, representation, use of Treasury Solicitors, and the status of the statements taken by the Northern Ireland Civil Rights Association. All of these, without exception, went in favour of the Army. The decision on closing addresses, therefore, made it a clean sweep in favour of the Army. That, of course, does not necessarily establish actual bias, but it certainly conveys a very strong appearance of bias.

Other Factors
There are several other aspects of the manner in which the Tribunal conducted its business which conveyed the appearance of a bias in favour of the Army. These have all been covered in other contexts in the course of this Report. They include: the speed at which the proceedings were conducted, the extent to which the discrepancies between the soldiers' statements to the military police and their evidence to the Tribunal were ignored, the unquestioning reliance on the evidence of soldiers where it conflicted with other independent cogent evidence, the focus of the Tribunal Report on the fatal shots instead of on all the shots fired by the Army, and the failure to address the broader policy implications of how the Army responded to events on Bloody Sunday.

It is also possible to identify passages in the Report which convey the strong impression that the author is consciously aiming to bolster the Army's case. These are in addition to those which would have been affected by the Secretary's memos to Lord Widgery (discussed above). For example, at para.35, dealing with the alleged hostile firing of the first single high velocity shot which hit a drainpipe at the side of the Presbyterian Church, the Report states that a:

"large number of witnesses gave evidence about this incident, which clearly occurred and which proves that at that stage there was at least one sniper, equipped with a high velocity weapon, established somewhere in the vicinity of the Rossville Flats and prepared to open fire on the soldiers."
What the Report does not reveal is that all of these witnesses were soldiers! Moreover, not one of these soldiers actually mentioned this shot in the statements they made to the Military Police that night. So, not only does the Report conceal the fact that it is accepting the self-serving evidence of the soldiers at face value, but it is also concealing the fact that there are grounds to question the reliability of the soldiers' evidence on the matter in question.

Another example concerns the issue of who fired first in the courtyard of Rossville Flats, a matter which the Tribunal misleadingly elevated to the "single most important issue" which it had to determine. The Report dealt with this issue by offering a representative sample of the civilian evidence (including journalists), all of which pointed the finger of blame at the Army, followed by a summary of evidence from Major 236, all of the soldiers who fired in and around the courtyard and a number of other soldiers who claimed that they saw firing in the area at the time. Most, but not all of the soldiers' evidence was to the effect that the Army came under fire first. Then, most significantly, Lord Widgery included a lengthy section on civilian evidence to the effect that gunmen were present in the Bogside that afternoon. This section covered just about every piece of civilian evidence there was about gunmen in the Bogside that afternoon. Very little of it was actually concerned with whether shots were fired at the Army in the courtyard of Rossville Flats before the Army themselves opened fire. Nevertheless, it was sufficient to convey a general and misleading impression of the Army being subjected to substantial hostile fire when they arrived in Rossville Street. What is missing, however, is any reference to the substantial number of military witnesses who claimed in evidence that they heard no hostile firing nor saw any nail bombs being thrown during this crucial period. Also missing is any reference to the lack of Army Reports being made about hostile fire at this time. In short, the Tribunal Report has piled up the evidence in favour of the Army being fired on first in the courtyard of Rossville Flats, even including much irrelevant but seriously prejudicial evidence, while at the same time minimising the evidence to the contrary. The result is Lord Widgery's finding that he "was entirely satisfied that the first firing in the courtyard was directed at the soldiers." Whatever about the truth of this finding, it is difficult to avoid the conclusion that it is a finding which the Tribunal Report tried too hard to justify.

It is respectfully submitted that the combination of the Tribunal's: composition, location, reliance on the Treasury Solicitor, adversarial approach to the events it had to investigate, allocation of legal representation, approach to its terms of reference and haste in conducting the investigation conveyed at least the appearance that it was biased in favour of the Army and as such would not be able to complete its task of establishing the truth to the satisfaction of the public. Aspects of the Tribunal's Report such as the concentration on fatal shootings, the excessive reliance on the veracity of Army, the failure to deal with key policy issues and the presentation of material to show the Army in the most favourable light, compounded that appearance of bias and further undermined the capacity of the Tribunal to achieve its task. Now, with the material released from the Public Records Office, with its revelations of the concealment of the discrepancies between the soldiers' original statements and their evidence to the Tribunal, the influence of the Secretary and the discriminatory use of police files, this very strong appearance of bias is hardening into a suspicion that the Tribunal was unduly concerned to protect the Army against harsh criticism where that was at all possible. That, combined with the appearance of bias, is more than sufficient totally to destroy any prospects of the Tribunal satisfying the very high standards required of a Tribunal of Inquiry established under the 1921 Act.

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