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

Introduction

The Status of the Tribunal

Exceptional Nature

Statutory Provision

Inquisitorial as opposed to Adversarial

Rules of Procedure

Summary of Tasks

Preliminary Observations

Nature of the Tribunal's Task

Speed

Length of the Report

Representation of the Parties

Truth

Importance of Truth

Conflict of Evidence

Looking at only Part of the Picture

An Analysis of each Shot

The "most important single issue"

The Missing Statements

Reliance on Army Evidence

Soldiers' Statements

Rossville Flats Courtyard

The Barricade Shootings

Glenfada/abbey Park Shootings

Gerald Donaghy

Other Shootings

Concealing the Weaknesses in the Soldiers' Evidence

Bias

Importance of Bias

Composition of the Tribunal

Terms of Reference

Location of Sittings

Treasury Solicitor

The Secretary to the Tribunal

Police files

Order of Closing Speeches

Other Factors

Conclusion

Accountability

Importance of Accountability

Public Confidence

The Broader Issues

Conclusion

Footnotes

"Bloody Sunday"
On the afternoon of Sunday 30 January 1972 a "civil rights" march made its way from the Creggan Estate in Derry en route to the city centre. The march was taking place in breach of an Order prohibiting such marches. A political decision was taken to stop the march in the Bogside before it reached the city centre. The task of stopping the march fell to the British Army. The operational plan for achieving this result envisaged that violence was likely once the march reached the army barricades at the edge of the Bogside. The plan included provision for a "scoop up" operation to arrest as many rioters as possible. Three companies of the 1 Parachute Regiment were given the task of conducting the arrest operation should it become necessary. In the event two companies went in through the army barricades at about 16.10. Shortly after that, shooting broke out. In the space of about 10 minutes, 13 civilians were shot dead and 15 were wounded. All of the dead were shot by soldiers as were all of the wounded, with one possible exception. All of the deaths and injuries occurred in the general area of Rossville Street, Rossville Flats and Glenfada/Abbey Park, although some Army shots were fired outside that immediate area.

Altogether, the soldiers fired a total of 108 bullets. They claimed that they fired at gunmen and bombers. No guns were recovered from any of the victims and the only bombs recovered were four nail bombs which were allegedly found on the body of Gerald Donaghy in disputed circumstances. No photographic evidence was produced showing a gunman or bomber despite the fact that there many photographers operating in the area, including at least two army photographers. There was some civilian evidence to the effect that the occasional gunman was spotted. Some civilians also reported seeing and hearing gunfire which did not come from the Army. However, no civilian or journalist reported seeing anyone throw a bomb at the Army. Forensic tests on all of the deceased (with the exception of Gerald Donaghy, on which see later) proved negative for handling bombs. They also proved negative for the handling of weapons for 5 of the deceased, and were inconclusive with respect to the rest. There was a huge body of civilian and journalist evidence that soldiers fired at unarmed civilians in circumstances where there was no real threat to the lives of the soldiers.

On the 31 January the government responded to the public outcry which followed these shootings by announcing the setting up of a Tribunal of Inquiry under the sole chair of the Lord Chief Justice, Lord Widgery. The terms of reference of the Inquiry 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."^[1]

"..to 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."^[2]

The Tribunal conducted 17 sessions between 21 February and 14 March 1972 in which it heard 117 witnesses including: priests; "other people from Londonderry"; press and television reporters, photographers, cameramen and sound recordists; soldiers; police officers; and doctors, forensic experts and pathologists. Three further sessions were held from 16 to 20 March to hear closing speeches by counsel on behalf of the relatives of the deceased, the Army and the Tribunal. Further evidence considered by the Tribunal included: over two hundred statements and a large number of photographs.^[3] Significantly, the Tribunal did not visit the scene of any of the shootings, nor did it commission any engineers' reports of the locations of any of the shootings, nor did it take evidence from victims who were still in hospital.

The Tribunal completed its Report on 10 April 1972, just ten weeks after the events in question. The material part of the Report runs to only 36 pages. The Report itself was published on 18 April 1972. Although the transcript of the public sessions of the Tribunal have been available for public inspection a very substantial body of material, which was considered by the Tribunal, was not made available for public inspection. However, in the Summer of 1995 the Director of British-Irish Rights Watch, while examining the few records on Bloody Sunday which were open to public inspection in the Public Records Office in London, came across a confidential memo of a meeting on 1 February 1972 between the prime minister, the Lord Chancellor (Lord Hailsham) and Lord Widgery himself. The purpose of the meeting was to discuss the conduct of the Tribunal of Inquiry. Prompted by this revelation the solicitors for the relatives of the deceased sought access to 13 categories of documents relating to the Tribunal of Inquiry which were closed to public inspection for periods of 50 - 75 years. After considerable presssure, and only after the documents had been referred to the Home Office, were the solicitors given access to 12 of the 13 categories in the Summer of 1996. The official reason given for withholding the 13th category was that it contained confidential documents relating to the injured and the Home Office was reluctant to release these as the parties were still alive.

The 12 categories that were released included copies of the statements made to the Military Police on the night of 30/31 January 1972 by the soldiers who fired, witness statements made by soldiers and some policemen to the Treasury Solicitor for the purposes of the Tribunal proceedings (most of these were made in late February to early March 1972), a schedule of the evidence obtained by the Tribunal and drafts of the Tribunal's Report and memos of advice from the Tribunal Secretary to Lord Widgery.

The purpose of this paper is to examine the Tribunal's proceedings and Report in the light of this new evidence that has become available and, in particular, to consider whether the Tribunal has fully and adequately discharged the obligations imposed upon it by its terms of reference. It is necessary at the outset, therefore, to clarify the status and role of a Tribunal of Inquiry that has been appointed under the Tribunals of Inquiry (Evidence) Act 1921.

Exceptional Nature
The Widgery Tribunal of Inquiry was set up under the Tribunals of Inquiry (Evidence) Act 1921. The exceptional nature of the Tribunal is indicated by the fact that only 21 Tribunals have ever been set up under the Act; the 21st being the current Tribunal of Inquiry into the Dunblane massacre. A Tribunal can be established under the Act where it is resolved by both Houses of Parliament that "it is expedient that a tribunal be established for inquiring into a definite matter described in the Resolution as of urgent public importance"^[4] They are reserved for those rare occasions where action is necessary to preserve the purity and integrity of public life which has been threatened by a crisis of public confidence.^[5] The purpose of such a Tribunal of Inquiry is not to establish the guilt or innocence of the parties allegedly involved, but to establish the truth, if any, behind the allegations which have led to the crisis. Where its report exposes wrongdoing, the task of taking the necessary corrective action falls elsewhere. The Tribunal's value lies in its capacity to persuade the public that the full facts have been established, and generally to assist in restoring public confidence in the integrity of government.


Statutory Provision
To fully comprehend the status and role of a Tribunal of Inquiry appointed under the 1921 Act, it is necessary to begin with the 1921 Act itself. Where the instrument appointing the Tribunal provides that the 1921 Act applies, the effect is to vest the Tribunal with all the powers, rights and privileges of the High Court or a judge of the High Court in respect of: compelling witnesses to attend and submit to examination, compelling the production of documents and the examination of witnesses abroad. Any person who refuses to attend when summoned or who refuses to take an oath required by the Tribunal, or who fails to answer any question or produce any document required by the Tribunal, or who does any other thing which amounts to a contempt of court, is at risk of being proceeded against for contempt in the High Court.^[6] A witness before the Tribunal is entitled to the same immunities and privileges he would be entitled to as a witness to civil proceedings in the High Court.^[7]

A Tribunal established under the 1921 Act must sit in public.^[8] However, it does have the power to exclude the public or a section of the public where it is of the opinion that it is in the public interest expedient to do so for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given. It also has the power to authorise the legal representation of any person appearing before it.^[9] By the same token it can refuse such representation.


Inquisitorial as Opposed to Adversarial
It is clear from these provisions that a Tribunal appointed under the 1921 Act is a very powerful instrument for inquiring into the matters referred to it. However, the frequent references to the High Court should not be interpreted as meaning that the Tribunal will function in a manner similar to the High Court exercising its criminal or civil jurisdiction. Indeed, it must be emphasised that the function of the Tribunal is fundamentally different in some critical respects from that of the High Court.

Under our adversarial system of justice when the High Court is hearing a case between two opposing parties, it does not play an active role in adducing evidence to determine the factual truth of a matter in dispute between the parties. Its primary role is to make a final determination on the basis of the evidence presented to it by the opposing parties. In discharging this role it relies on the parties to present all the relevant evidence and to subject the evidence of their opponents to searching scrutiny. The High Court itself will not pursue this task. Its input is largely confined to ensuring that the parties respect the rules of procedure in adducing the evidence and in scrutinising each other's evidence. At the end of the day the primary function of the High Court is to decide in favour of one side or the other in accordance with the rules of the game. It is not concerned first and foremost with establishing the truth. It may be, of course, that the adversarial procedure and the attendant rules applied by the Court are best suited to producing a final determination which accords with the truth in any case. That, however, is not necessarily the same thing as saying that the High Court is actively engaged in a search for the truth.

The Tribunal of Inquiry by contrast is set up specifically to find the truth. It is expected to take a positive and primary role in searching out the truth as best it can. Certainly, it will seek the assistance of any interested party who has evidence to give or who has an interest in challenging the evidence offered by another party. It must be emphasised, however, that it is the Tribunal, and not the parties, which decides what witnesses will be called to give evidence. Indeed, strictly speaking there are no parties, no plaintiff and defendant, no prosecutor and accused, only an inquiry after the truth. It is the Tribunal which directs that inquiry. All the witnesses are the Tribunals's witnesses, not the witnesses of the parties who wish them to be called. Whether any individual witness will be called is a matter for the Tribunal. Moreover, the Tribunal can be expected to act on its own initiative to seek out witnesses who may be able to assist in the quest for the truth. Ultimately, the task facing the Tribunal is to establish the truth, not to make a determination in favour of one party engaged in an adversarial contest with another.


Rules of Procedure
It follows from this description of the Tribunal's task that it is not necessarily bound by the rules of evidence and procedure applicable to adversarial proceedings in the High Court. Indeed, apart from the provisions mentioned above, the 1921 Act does not impose any constraints on the Tribunal's control over its own procedure. Technically, it is free to determine its own procedures and rules of evidence. There is always the danger, of course, that the inquisitorial approach will result in serious allegations being made against an identifiable individual during the proceedings, without that individual being afforded a realistic opportunity to answer those allegations and generally defend his reputation. In 1966 the Report of the Royal Commission on Tribunals of Inquiry (the Salmon Commission) specifically addressed this problem and came up with six cardinal principles which ought to govern the conduct of Inquiry proceedings.

The six cardinal principles are:^[10]

1.	Before any person becomes involved in an inquiry, the Tribunal must be satisfied that there are circumstances which affect him and which the Tribunal proposes to investigate.
2.	Before any person who is involved in an inquiry is called as a witness he should be informed of any allegations which are made against him and the substance of the evidence in support of them.
3.	(a) He should be given an adequate opportunity of preparing his case and of being assisted by legal advisers. (b) His legal expenses should normally be met out of public funds.
4.	He should have the opportunity of being examined by his own solicitor or counsel and of stating his case in public at the inquiry.
5.	Any material witnesses he wishes called at the inquiry should, if reasonably practicable, be heard.
6.	He should have the opportunity of testing by cross-examination conducted by his own solicitor or counsel any evidence which may affect him.

Salmon considered that observance of these six principles was of the highest importance in safeguarding witnesses and interested parties to the Tribunal proceedings.^[11] He also considered that their effective observance requires less haste in the conduct of the Tribunal proceedings. While he recognised the urgency of establishing what happened as speedily as possible, he specifically recommended that where allegations were made against witnesses they should be given adequate time to prepare their case. The delay which would ensue was a "small price to pay in order to avoid injustice."^[12]

The adoption of Salmon's principles would clearly promote fair treatment for individuals who would be the subject of serious allegations during an Inquiry. They would also convey the appearance of adversarial proceedings, at least where witnesses were seen to be called by an individual and examined by counsel for that individual. This appearance would be strengthened by witnesses being cross-examined by counsel representing other individuals. Nevertheless, the recommendations do not, and were never meant to, fundamentally alter the inquisitorial nature of the proceedings. Despite the appearances, all the witnesses remain as witnesses of the Tribunal and the Tribunal retains its primary responsibility for directing the proceedings and seeking out the truth. Salmon's recommendations were merely designed to provide a measure of fair play for those individuals who were at risk of being the subject of serious allegations during the proceedings.

For the most part, the government accepted the bulk of Salmon's recommendations on these matters. Although, they were never framed in the form of a statutory code of procedure, Salmons's recommendations have been largely followed in subsequent Inquiries. Before departing from them in any given instance, the inquiry concerned would normally offer a detailed explanation.


Summary of Tasks
In the light of the foregoing, the tasks of the Widgery Tribunal might be summarised as follows:

The vital and weighty task of establishing the truth fell to the Widgery Tribunal of Inquiry. For reasons that will be explained later under the heading of "Bias", it embarked upon the task with the severe handicap of appearing not to be totally independent of the party whose actions were the primary subject of investigation. However, it compounded the effects of that handicap by choosing to complete its task with such haste that it could not realistically have hoped to establish the full truth of what happened, let alone manage to convince all interested parties that it had done so.


Speed
One of the most remarkable features about the whole Tribunal of Inquiry is the speed with which it completed its task. Just ten weeks after it had been appointed, the Tribunal purported not just to have investigated but also to have published the truth of the events that led to the deaths in Derry on Bloody Sunday. Given the unprecedented nature of the events it was investigating and the enormity of the vested interests at stake, it is almost absurd even to think that the Tribunal could have confidently established the truth of what happened in the space of only ten weeks. Such a feat would hardly have been possible if all the deaths and injuries had occurred in one incident for which they was copious video evidence. The deaths and injuries on Bloody Sunday, however, occurred in several different incidents of which the video and photographic evidence was very limited. Moreover, there were literally hundreds of witnesses whose statements had to be sifted through and whose evidence had to be heard and tested. To make matters worse their evidence often provided several different versions of the same events. For the Tribunal to claim that it received, analysed, digested and drew confident and reliable conclusions about what happened in these circumstances in the space of less than ten weeks, is to stretch credulity to the limit. Such a claim is hardly likely to inspire that public confidence in its findings which is so vital, in turn, for the restoration of public confidence in the State and its institutions of public order.

In partial defence of the Widgery Tribunal it must be said that it was placed under considerable pressure to complete its task as soon as possible. In the Parliamentary debate on the motion to appoint the Tribunal, the point was made again and again that the Tribunal must not become a device to push the horrific events of Bloody Sunday into the background until public and international concern had died down. It was considered that the best means of avoiding this outcome was to have the matter investigated quickly. It is apparent that Widgery himself fell into this trap. In the introduction to his report he said that the value of the Inquiry would "largely depend on its being conducted and concluded expeditiously."^[13] There may be contexts in which this perspective is valid. Given the profound importance of the matters that Widgery had to investigate and their sheer complexity, it can only be described as misguided in this instance.

Significantly, Lord Salmon made some reflections on the element of speed in an Inquiry appointed under the 1921 Act.^[14] He acknowledged the importance of revealing the truth to the public as soon as possible and, in particular, that there should be no dilatoriness in starting an Inquiry and pushing it to its conclusion. Equally, however, he was of the opinion that too much haste can result in unfairness to the parties concerned, and he specifically denounced the speed at which some post-war Tribunals had conducted their inquiries.

Although each Inquiry is wholly unique, nevertheless some useful comparison might be made in this context with the Scarman Tribunal of Inquiry. It was appointed under the 1921 Act to inquire into "..the acts of violence and civil disturbance which occurred" in Belfast, Derry, Dungiven, Armagh, Coalisland, Dungannon, Newry and Crossmaglen during the summer of 1969 and which "resulted in loss of life, personal injury and damage to property." It submitted its report around the same time as the Widgery Report despite the fact that it had bene appointed almost two and a half years before the Widgery Tribunal. In other words the duration of the Scarman proceedings were more than ten times longer than the Widgery proceedings. Some of the difference might be accounted for by the fact that the former had more incidents to examine than the latter. However, this must be set against the fact that the gravity of the matters being investigated by the Widgery Tribunal were much more profound and therefore should have attracted much more careful deliberation. It must also be acknowledged that the long gestation period for the Scarman Report meant that it had been overtaken by events by the time it was published. Given the unprecedented nature of the events that the Widgery Tribunal was investigating, that was hardly likely to have been a problem for it. The overriding requirement for the Widgery Report was public confidence in its findings. That would not be bought by speed, but it could surely be lost through haste. Indeed, it is worth noting that a lack of public confidence in its findings was not something that dogged the Scarman Report.

In short, it is difficult to avoid the conclusion that as a result of its undue haste in conducting its investigation into the most serious allegations that have been made in peace-time against agents of the State, the Widgery Tribunal severely compromised its own capacity to achieve one of the most vital incidents of its task, namely to inspire public confidence in the truth and fullness of its findings.


Length of the Report
Closely associated with the issue of speed is the length of the Tribunal's Report. Indeed, the length of the Report might be considered a direct and inevitable consequence of the speed of the inquiry. The main body of the report runs to a mere 36 pages. Given the speed at which the Inquiry was conducted that statistic is hardly surprising. Nevertheless, it is a further significant indication that the events of Bloody Sunday were not investigated with the care, patience, diligence and thoroughness that might have been expected given the gravity and complexity of the issues involved. Public confidence in the conduct of the investigation and the reliability of its findings will hardly be boosted by such a lightweight product. An immediate and justifiable assumption will be that the Report is simply too short to offer a full and accurate analysis of the evidence, the facts and the issues that had to be examined in order to satisfy public concern. The Scarman Report offers a telling comparison. It runs to no less than 245 pages despite the fact that the issues it had to address were considered almost irrelevant in the light of the events of Bloody Sunday.

At the very least, therefore, the length of the Widgery Report gives the appearance that the Inquiry did not fully discharge its task. If it appears that the Tribunal did not fully discharge its task then that in itself will be sufficient to undermine public confidence in the results of the Inquiry.


Representation of the Parties
Another factor which undermined the capacity of the Tribunal to discharge its task successfully was the manner in which it organised the representation of the parties and the interests. Strictly speaking, of course, the Inquiry was not to be conducted as an adversarial hearing. Nevertheless, in line with the Salmon recommendations it was proper for the Tribunal to permit legal representation of those parties against whom allegations were likely to be made. The obvious parties in question would be the soldiers involved, the injured and the next of kin of the deceased. In line with the Salmon principles, the legal representatives of these parties would be entitled to advance notice of the allegations made against them, and an opportunity to lead the evidence of their clients in examination, to examine material evidence against their clients and to cross examine witnesses who give evidence against their clients. Beyond that it was the responsibility of counsel for the Tribunal to ensure that all other relevant and accessible evidence was available to the Inquiry and that all evidence was properly tested for reliability.

In the event the Tribunal granted representation to the Army and to the deceased. One legal team acted for the Army and one legal team acted for the deceased. This arrangement obviously made sense in the case of the Army given the fact that the individual soldiers on the day were acting as a unit under military orders. The justification is less obvious in the case of the deceased. They did not form part of a closely knit organisation and had not been acting in concert on the day. Indeed, most of them did not even know each other. They were all separate individuals. Given that the evidence of the soldiers was to the effect that they shot only at gunmen and bombers, it follows that their families were all entitled to their own separate legal representation. However, the question of separate representation did not become an issue during the proceedings. When the proceedings opened a single legal team appeared for 12 of the 13 deceased as they anticipated that the Tribunal would not permit separate representation. Their fears were confirmed at the outset by Lord Widgery who declared that he saw no need for the individual deceased to be represented separately. The effect of this, of course, was that a single legal team consisting of a senior counsel and a junior counsel would have to carry the burden of representing the interests of a large number of separate individuals. It is worth noting here that no separate representation was considered for the wounded. The clear expectation of the Tribunal was that the legal team for the deceased would cover the needs of the wounded, thereby more than doubling the burden on the two barristers in question.

A further, and perhaps more serious, twist resulted from Lord Widgery's wish that the views of the people of Derry who might be critical of the Army should also be represented, and that that representation should be provided by counsel for the relatives. The inevitable effect of this decision was that the single legal team representing the relatives of the deceased also had to represent the wounded and the nationalist citizenry of Derry. This was a huge burden to place on such slender resources and could only result in the representation of the individual deceased being stretched beyond breaking point.

An equally important consequence of Lord Widgery's approach, the significance of which cannot be over-estimated, was that it effectively turned the Inquiry into an adversarial contest between two opposing parties. What should have been an inquisitorial investigation conducted by the Tribunal itself, with contributions from affected parties, was shaping up to be an adversarial contest between unequal parties with the Tribunal making a contribution. The significance of this, as will be seen later, was greatest during the vital cross-examination of the soldiers. This task was left almost exclusively to counsel for the relatives of the deceased etc. In its Report the Tribunal placed great store on its perception of how well the soldiers performed under cross-examination. The reality, of course, was that the counsel for the relatives were in a very weak position when it came to conducting this cross-examination. Not only did they not have the time and resources to prepare fully for this mammoth task, but they did not have copies of the critical statements made by the soldiers to the Military Police on the night of Bloody Sunday. As will be seen later, access to this vital evidence would have had a profound effect on the conduct of the soldiers' cross-examination and, by extension, the whole drift of the Inquiry.

By contrast, counsel for the Tribunal did have access to this critical material and could have used it to devastating effect in the cross examination of the soldiers, which of course should have been the primary responsibility of counsel for the Tribunal in such an Inquiry. Incredibly, however, counsel for the Tribunal hardly featured at all in cross examination of the soldiers. This most critical aspect of the Inquiry was left to counsel for one of the "parties." That, of course, is what one would expect in an adversarial proceeding, but not what should happen in an inquisitorial Inquiry appointed under the 1921 Act.

It is apparent, therefore, that Lord Widgery's approach to representation at the Inquiry had the effect of steering the Inquiry away from an inquisitorial approach to an adversarial approach. Not only did this conflict with the terms of appointment of the Tribunal, but it also meant that the Tribunal's focus was less on establishing the truth of what happened and more on picking the winner of a legal contest between unequal opposing parties.

The significance of these preliminary observations becomes ever more apparent as the substance of the Tribunal's work is analysed in the light of the soldiers' statements made to the Military Police on the night of Bloody Sunday and the other recently released documentation. This analysis will be presented now under the headings of "Truth", "Bias", and "Accountability".