'Inquiry into the Circumstances Surrounding the Deaths of Seamus Cusack and George Desmond Beattie', by Lord Gifford (1971)

CONTENTS

D. THE SHOOTING OF DESMOND BEATTIE

PREFACE

The bulk of this report was written before the internment decision and its terrible aftermath. The fierce battles of these past months have tended to overshadow the shootings of Cusack and Beattie in July. Yet the deaths of these two young men were no less tragic because they were followed by more deaths, and the lessons to be learnt have been underlined rather than erased by the subsequent events. The internment decision was not taken suddenly; it followed a succession of incidents, in which the various conflicting groups in Northern Ireland grew further and further apart. It is indeed arguable that the failure of the authorities to deal effectively, openly and candidly with the public protest and controversy which succeeded the shootings in Londonderry of 8th July was a major factor contributing to the escalation that followed. More recent incidents, such as the shooting of the lorry-driver in Belfast and of the deaf-mute in Strabane. have underlined in tragic fashion how quickly public anger is aroused when army claims lack credibility.

The old maxim, that the law should not be silent amidst the clash of arms, has been borne out anew in Northern Ireland. The position of the army there is politically controversial and constitutionally obscure: martial law has not been declared, yet the supremacy of the civil authorities is more nominal than real. The exchange of memoranda between the army and the police, however meticulously carried out, can never he a substitute for full public inquiry. Our inquiry was a modest attempt to investigate in a calm and fair manner an issue of intense public controversy. We believe that if the authorities had been willing to undertake prompt independent and public inquiries themselves, much misery and loss of life could have been avoided.

GIFFORD (Chairman)

PAUL O'DWYER

ALBIE SACHS

A. BACKGROUND TO THE INQUIRY

(1) At about 1.00 a.m. on the morning of 8th July 1971, in the Bogside area of Londonderry, Seamus Cusack, a local man aged twenty-eight, was shot in the upper part of the leg by a soldier of the Armed Forces. He died about forty minutes later in Letterkenny Hospital in the Republic of Ireland. His death gave rise to further disturbances in the city, and in the course of these, George Desmond Beattie, a youth of nineteen, was also shot by a soldier and died instantly, at about 3.15 on the afternoon of 8th July.

(2) Immediately after the shootings, two totally conflicting accounts of the circumstances of these deaths began to emerge. The Army maintained that both men had been armed, Cusack with a rifle and Beattie with a nail bomb. This assertion was repeated on 12th July in the House of Commons by Lord Balniel, Minister of State for Defence. Local people on the other hand insisted that the two men were unarmed.

(3) In all the unhappy history of recent bloodshed in Northern Ireland, there had rarely, if ever, been such confusion and controversy surrounding the death of two individuals. Repeated demands were made for an official inquiry. Opposition MPs at Stormont, in a statement on 11th July, said: 'Our demand for an inquiry is a decisive test of the sincerity and determination of the British Government. If it is not granted, then as publicly elected representatives we will accept the logic of our position. which is that there is no role we can usefully play within the present system.’ When their demand was not met, these MPs announced their withdrawal from Stormont and the setting up of an alternative assembly.

(4) It was in these heated circumstances that we were asked to hold an unofficial inquiry into the circumstances surrounding the shootings. We considered this request with great caution. As persons not directly involved in the Northern Ireland conflict, we were in a position to take a relatively detached and objective view; yet because of our distance from the scene we could possibly say or do things unwittingly which might inflame an already complex and troubled situation.

(5) On the other hand we believed strongly that human life should never be regarded as cheap. When a man is shot dead, whether he be a soldier or a civilian, Catholic or Protestant, his fellow-citizens have a right to search for the truth as to why he was fired upon. lithe truth is made known, then lessons can be learnt and future lives can be saved. If the truth is withheld, then rumour, bitterness and discontent will flourish. Such considerations are all the more relevant to the political situation in Northern Ireland. There, for the past two years, the Army has been deployed to assist the police in the preservation of order, and no end to their stay is in sight. We are not competent to pronounce on the merits or demerits of either their presence or their activities. But the fact that they are there is bound to affect the normal operation of the administration of justice.

(6) In the case of Beattie we were aware that an inquest was to be held, but an inquest at which the coroner or jury had no means of ensuring that all available evidence was presented, and were prohibited by law from drawing any conclusions or making any assessment as to the responsibility of any person. In the case of Cusack, because he died in the Republic of Ireland, no inquest was held in Northern Ireland, and the proceedings in the Republic related purely to determining the cause of death.

(7) In both cases the sole responsibility for investigating the evidence, and for taking any further action which might be called for, lay upon the police. We were informed that the Army had made the statements of soldiers available to the police, and the hope was expressed to us by the Ministry of Defence that we would try to persuade the people whose evidence conflicted with the Army’s version to co-operate in a similar manner. Accordingly, we had to consider whether, in the absence of any other form of inquiry, the police could reasonably be expected to investigate the incidents in a thorough and satisfactory way.

(8) In the prevailing circumstances we feared that the police would be reluctant to go behind the Army’s version. Our apprehensions were confirmed when, on 21st July, Lord Gifford spoke with a senior officer of the Londonderry police force. It appeared at that stage, two weeks after the shootings, that the officer knew of no statements that had been taken from any non-military source. None of the witnesses who gave evidence at our inquiry had apparently been approached or interviewed by the police. The senior officer said that no witnesses had come forward: an excuse for inaction which would not for one moment be put forward in the case of a violent death in normal circumstances.

(9) Given the lack of human contact and human trust between the police and the Bogside community, and given the role of the Army as allies of the police, members of the public will easily come to expect that the Army’s explanation of their own actions will go unchallenged by the civil authorities. It is a state of affairs, however, which if hardly surprising is profoundly unsatisfactory and disturbing. For if soldiers have been at fault, they can never be brought to justice; lessons can never be learnt from their mistakes or misconduct, and the innocence of their victims can never be established. If, on the other hand, they have been wrongly accused, there is no means whereby local people can be persuaded of the fact. Either way, tension, mistrust and conflict will increase.

(10) For these reasons we felt justified in conducting, as fully, as publicly, as impartially and as moderately as we could, an independent inquiry into the Londonderry shootings. For the same reasons, we earnestly recommend that consideration be urgently given to devising some new way of dealing with similar controversies in the future. Possibly there should he some procedure for publicly investigating complaints of misconduct against the Army, such as has been advocated in regard to the police in Great Britain. Possibly there should be a much wider use of the ad hoc judicial inquiry. But, however severe the conflict in Northern Ireland may be, it will only grow worse if the basic principles of justice are ignored.

(11) In the event we believe that our inquiry, deficient in some respects though it may have been, did serve a valuable purpose. It was conducted openly and, we believe, in a responsible manner. Witnesses came forward freely and in great numbers. And since the local police, very properly, observed and recorded the whole of the proceedings, they are now at least in possession not just of a one-sided account, but of all the evidence relating to these tragic deaths.

B. THE NON-PARTICPATION OF THE ARMY IN OUR INQUIRY

(12) The main criticism which could be made of our inquiry was that it heard evidence only from one side. We would emphasise that this was not our wish. On 14th July 1971, Lord Gifford wrote to Lord Carrington in the following terms:

'I hope very much that the Military Authorities in Northern Ireland will participate in the inquiry. They will be free to question the evidence of witnesses by cross-examination; to present evidence; and to put forward any oral or written representations which they feel may be of assistance. I should be happy, with my colleagues. to meet senior officers, or to study any report which might be made available.’

(13) On 20th July, Mr Geoffrey Johnson Smith, on behalf of Lord Carrington, replied:

'I note what you say about your purpose but I am afraid that I cannot agree to any form of participation by the military authorities at your inquiry. The facts of the incidents of the 7th and 8th July were given by Lord Balniel in the House of Commons on 12th July. The prime responsibility for the investigation of these incidents or for any further action rests with the Northern Ireland civil authorities and with them alone.’

(14) On the evening of 22nd July. after hearing a large body of eye-witness evidence on the Cusack case, we made a further approach by telegram to Lord Carrington:

‘Our inquiry today heard evidence by many civilian eye-witnesses regarding shooting of Seamus Cusack totally inconsistent with Lord Balniel’s statement. Serious allegations not previously available to you were made regarding conduct of individual soldiers and in interests of all concerned we earnestly urge you reconsider decision not to permit soldiers to testify. The oral testimony given to Beattie inquest stands in sharp contrast with military silence in Cusack case and renders full oral hearings all the more necessary. We will make any necessary arrangements for extending hearing if we receive notification from you before 5 p.m. Friday 23rd July).’

(15) On 23rd July, Lord Carrington’s reply came back:

'I confirm the refusal of Mr Geoffrey Johnson Smith in his letter to you of 20th July. I repeat that the Army has made available to the civil authorities all the evidence in its possession, and affirm principle that the Services must be answerable in such matters only to the proper authorities and in accordance with the normal processes of law.’

(16) One can understand that in normal circumstances the Arms would reasonably not wish to depart from the established procedure. But the normal processes of law do not involve action by the military at all. As we have explained, the supremacy of the civil authorities would appear to exist more in name than in reality. In any event, a controversy cannot be allayed by being referred to a body which is itself the object of controversy. Against the background of communal tensions, the police will not necessarily be regarded as an independent body. Another factor of particular relevance was that there was not even an inquest at which the evidence of the soldiers could be made known. For these reasons we regret that the Army did not, in the interests of their own credibility, as well as in the wider interests of justice, show more flexibility on this occasion.

Procedure

(17) It did not prove necessary for us to adopt any special procedures. We were anxious that witnesses should not feel overawed or intimidated, as too often happens in a normal court. They sat at our table, were taken through their story by one of us, and then questioned more closely by the others. We were not permitted, because of the Statutory Declarations Act 1835, to administer oaths. As the testimony was almost entirely that of eye-witnesses, we did not have to take any decision as to the advisability of hearsay evidence.

C. THE SHOOTING OF SEAMUS CUSACK

The Army's Case

(18) The Army’s account of the shooting must be gleaned from a few brief statements made in Parliament and to the Press. On 12th July, Lord Balniel, Minister of State for Defence, stated in the House of Commons:

‘I think the House will he interested to know the facts. During the night of 7^th - 8^th July a detachment of soldiers were deployed following the ambushing of a military Land-Rover. One of the soldiers saw a civilian carrying a rifle at the ready. He shouted a warning to the man to stand fast. This was ignored. The man then aimed at the troops. The soldier fired one aimed shot and the man fell.’

(19) On 15th July, in a written Parliamentary answer, Mr Geoffrey Johnson Smith, Under-Secretary of State for the Army, replied to a question in the following terms:

‘Miss Devlin asked the Minister of State for Defence who authorised the shooting by the Army in Northern Ireland of Seamus Cusack on the night of 7th July; and at what time and in what manner the authorisation was given.

Mr G. Johnson Smith: If the hon. Member is referring to the shooting incident which occurred in Londonderry in the morning of 8th July, the soldier who fired acted on his own responsibility under his Common Law duty.’

(20) No explanation was given of what was meant by the phrase ‘his Common Law duty’, but we assume that the answer was consistent with the statement of Lord Balniel.

(21) Earlier, on 10^th July, the commanding officer of the 1^st Battalion of the Royal Anglian Regiment had been quoted in the following terms in the Irish Times:

‘Colonel Jackson said his evidence stated categorically that the two dead men had been armed. He said he had made his investigation about the shooting, but added that he was not competent to judge any higher authority requiring an inquiry.

He could not explain why civilian eye-witness reports on the shooting differed totally from the British Army version, but his evidence was that the two dead men had been armed.

He said there was no possibility that the soldiers could have made a mistake in shooting the men. He claimed that there had been shooting at troops on Sunday, Monday and Tuesday nights, but the Army did not reply because it did not have definite targets. Only on Wednesday night had the Army had a good target and opened fire, when, he claimed, a gunman came closer than previously.’

(22) The essence of these statements was that Cusack was shot while he was holding a rifle at the ready and after he had failed to heed a warning to stand fast.

Background to the Shooting

(23) For several nights prior to the night of 7^th - 8^th July there had been clashes between civilians and the Army in Londonderry, particularly in the Bogside area. The basic pattern of the conflict was for stones to he hurled by the civilians at the soldiers, and for the soldiers to answer by firing rubber bullets. On occasions, however, the attacks on the soldiers took more serious and potentially lethal forms.

(24) A number of witnesses emphasised to us that on the night of 7^th - 8^th July the skirmishes between soldiers and civilians had been considerably less severe than on previous nights. In particular they stressed that at no time were they aware of petrol bombs, nail bombs or guns being used against the soldiers that night. The gravest incident appears to have been the heavy stoning of a group of soldiers in an area known as the Little Diamond, where members of the 1st Battalion of the Royal Anglian Regiment were cornered and pressed very hard by the stone-throwing crowd. This took place about twenty to thirty minutes before the shooting of Cusack at a spot about 100 yards from where Cusack was later shot. The troops defended themselves behind long Perspex shields and tried to keep the crowd at a distance by firing rubber bullets. Although the shields provided effective protection, the rubber bullets did not seem to have a great effect on the crowd. Eventually the attention of the crowd was diverted by the arrival of more troops, which enabled the soldiers in the Little Diamond to push the crowd back. The fighting died down and the crowd began to drift across some wasteland which lay between Lisfannon Park and Abbey Park. It seemed to many that the evening’s disturbances were coming to an end.

The Place where Seamus Cusack was shot

(25) After retreating from the Little Diamond, the crowd observed that one or two Army vehicles and some soldiers had entered the car park which served the Abbey Park flats. This area needs to be described in some detail.

(26) The Old Bogside Road runs east to west from Rossville Street to the Little Diamond, passing Abbey Park to the north and the waste ground going across to Lisfannon Park to the south. Abbey Park comprises a series of individual buildings separated by open spaces. Stepping north from the road, one enters an open car park area about 40 yards square, bounded on three sides by dwellings; on the left is a small

three-storey block of flats, which we will call Block A, and in front and on the right is a two-storey L-shaped line of houses. which we will call Block B. (Fig 1) A roadway between Block A and Block B leads from the car park into another open space which we will call the rear car park. This space is overlooked by the rear windows of Blocks A and B on the south side, and by another three-storey block of flats on the west side, which we will call Block C. To the north, behind the rear ear park and across a road, lie two buildings known as the Stardust Club and the Credit Union.

(27) The layout of Block A is of special importance. It has windows to the south which face towards the Old Bogside Road, and windows to the north which face towards the rear car park. Beneath each set of windows is a small strip of grass about 9 feet long, bounded by low walls about a foot high. The south-facing strip of grass was referred to by witnesses as Mrs Meenan’s front garden, while the north-facing strip was referred to as Mrs Meenan’s rear garden. On the east side of Block A running from the end of one garden to the end of the other is a windowless wall or gable-end about 25 feet in length.

(28) All the evidence pointed to the fact that Cusack was shot when he had just stepped out from Mrs Meenan’s front garden. The evidence also indicated that he was shot by a soldier who had just stepped out of Mrs Meenan’s back garden and who had fired down the line of the gable-end at a range of 20-30 feet.

(29) We visited this location both by day and by night. The lighting in the front car park was fair. Some light penetrated into it from two lampstands in the rear car park (which was thus well lit), and from a lampstand a little way up the road opposite Block A. These two sources of light were cut off on each side by the corners of Block A, so that a triangle of shadow was formed along the gable-end.

(30) On the night of our visit a lampstand directly opposite the front car park was not working. Witnesses could not recall whether it was functioning on the night of the shooting; but from the evidence of Miss McCafferty, who remembered the triangle of shadow, we concluded that in all likelihood it was not. On the other hand further general illumination of the scene would have been provided by the full moon which shone that night and by any lights which might have been on in the flats in the vicinity.

(31) It follows that both Mrs Meenan's front garden, from which Cusack stepped out, and Mrs Meenan’s back garden, from which the soldier stepped out, were reasonably well lit on the night of the shooting. However, the soldier might not have had a distinct view of his target, particularly if Cusack was moving forward at the time into the triangle of shadow.

The Witnesses to the Inquiry

(32) We received evidence from twenty-four persons, of whom eighteen were eye-witnesses either to the shooting itself or to the movements of Cusack and the soldiers in the moments immediately preceding the shooting. Eleven of these eye-witnesses testified as to having looked out on to the front car park where they had seen Cusack, and seven spoke of having looked over the rear car park, where they had seen the disposition of the soldiers.

(33) The incident under inquiry was unusual in that it took place within an arena of houses, occupied by persons who had, as it were, a ringside view of the proceedings without themselves being participants. Ten of the witnesses who testified before us fell into this category. They came from all the blocks in the vicinity and were able to see the crucial events from a variety of angles. Most of them indicated that they disapproved of stone-throwing at the soldiers, though one spoke of ‘our boys’ when referring to the crowd confronting the soldiers. The other eight eye-witnesses were standing in the open at the time of the shooting, mostly at a safe distance in the Old Bogside Road. Two of these were respectively a journalist on the Irish Times and a schoolteacher friend, neither of whom appeared to be in any way connected with the disturbances other than as observers; on the other hand, three of the witnesses might well have been involved in stone-throwing. The witnesses gave their evidence in considerable detail and answered questions freely. There was nothing in their demeanour to indicate in any way that their stories were rehearsed, nor in general did they give the appearance of straining their evidence. Many of them were in fact most impressive, and the case that emerged from their evidence was a compelling one. We are grateful to all those who came forward to testify, and who enabled us to conduct an extensive inquiry.

The Movements of Cusack and O’Hagan

(34) On the basis of the evidence we received, we can plot with reasonable accuracy the events which immediately preceded the shooting. Some of the soldiers had moved into the area of the rear car park, and a Saracen armed car had been placed somewhere near the opening into the front car park. A section of the crowd from the Little Diamond had gone up to the Old Bogside Road, opposite Abbey Park, and a small group began to throw stones in the direction of the soldiers.

(35) All the witnesses emphasised that the stone-throwing at this stage was very much less intense than it had been previously, with only a handful of youths taking part. It was not an open confrontation; rather a period of desultory activity by youths lobbing stones at targets which were generally out of sight and out of immediate range. The impression given by the witnesses was that the soldiers lay more in ambush than under siege.

(36) At one point a lone soldier ventured around the gable-end by Mrs Meenan’s back garden and became visible to the people in the Old Bogside Road. One witness thought at the time that he was rather brave to do so. His helmet was knocked off, probably by a stone, and it fell to the ground near the gable-end wall.

(37) A seventeen-year-old boy, Patrick O’Hagan, then decided to retrieve the helmet to keep it as a trophy. O’Hagan gave evidence, and we depend to some extent on his story for the details of the ensuing minutes. He was a rather nervous witness, and had obviously been in a state of excitement at the time. Moreover, because of his action on the night in question, he might have had good reason to try to minimise before us the extent of hostile activity by himself and Cusack. Nevertheless in its essential points his story was corroborated by many other witnesses and there was nothing to indicate that in the main it was not true.

(38) O’Hagan got close to the helmet and was within a few yards of the gable-end, when he was felled by a rubber bullet. Cusack, who appears to have come out either together with him, or immediately afterwards, helped him to his feet, and the two of them ran back to the shelter of Mrs Meenan’s front garden. Some witnesses spoke of a third youth having been out there with them for at least some of the time, but if there was such a person, he seems to have at some stage retreated back towards the Old Bogside Road, leaving Cusack and O’Hagan by themselves in the front garden.

(39) There followed a period of perhaps a minute during which, in full view of the spectators, Cusack and O’Hagan from behind one corner of the gable-end played a cat-and-mouse game with the soldiers. One of the soldiers was certainly behind the other corner; another seems to have been across the roadway near the gable-end of Block B. Cusack and O’Hagan decided to try once more to retrieve the helmet. One or both of them may have thrown an occasional stone at this time, while the soldiers appear to have answered with a few rubber bullets.

(40) Some witnesses asserted that Cusack at no stage had anything in his hands; on the other hand there was a considerable body of evidence to suggest that in fact he did throw stones from Mrs Meenan’s front garden. Miss Kathleen McNulty, who said she was watching from a window a few feet away, stated definitely that he raised his arm twice as if he were throwing stones, though she says she did not actually see any stones in his hand. Mr. William Barrett, looking down from a third-floor window of some flats beyond Block B, confirms that stones were thrown, although he was not in a position to say by whom; and Cusack had been seen in the crowd some minutes earlier by Miss Nell McCafferty tossing a stone from hand to hand.

(41) The game being played by the brave soldier who had had his helmet knocked off and the daring youths who sought to retrieve it, ended in tragedy. On his second dash forward, O’Hagan reached about half-way along the gable wall, stooping to pick up the helmet. Cusack moved out behind him, but got no further than the edge of the front garden. The soldier at the far end of the wall, armed with a rifle, stepped out and fired at once almost from point blank range in a crouched position. The bullet passed O’Hagan, and hit Cusack on the inside of the upper part of his left leg, piercing the main artery of the leg and exiting in the rear of the thigh.

After the Shooting

(42) A number of witnesses stated that after Cusack fell, Patrick O'Hagan ran back to help him. Together with others, O’Hagan carried Cusack by the arms and legs over the road, across the wasteland, and to the streets around Lisfannon Park. Blood, the stains of which were still clearly visible when we visited the scene two weeks later, was pouring from his leg. Two men, Mr McGalinchey and Mr Barber, had cars nearby and offered to take Cusack to hospital. Mr McGalinchey’s car was chosen.

(43) The crowd gathered around were all saying: 'Take him to Letterkenny, not to Altnagelvin.’ As Mr Barber told us, the reason expressed for not taking him to the local hospital was that the police would find him there and charge him with riotous behaviour. On all the evidence this tragic mistrust was genuinely felt. No one seemed to be in charge of the crowd, and there was nothing to suggest in any way that the conveyance of Cusack over the border to Letterkenny was effected by any military type organisation.

(44) Mr Barber had helped to carry him to the car, and knew how much blood he was losing. If it had been left to him, he would have gone to Altnagelvin despite the urging of the crowd. In his words, it was better that Cusack should receive six months in prison than that he should die. But Mr McGalinchey, not suspecting that the injury could prove fatal, was persuaded to drive the 20 miles to Letterkenny. Cusack regained consciousness on the journey, and asked for water, which they stopped to provide for him. Later he said that he knew he was dying, and spoke about his girl friend. Within minutes of arriving at the hospital, he was dead.

(45) At the inquest in Letterkenny, the coroner expressed the view that he would not have died if a tourniquet had been applied earlier. However, by far the greatest loss of blood seems to have occurred while he was being carried inexpertly away from the scene. Mc McGalinchey said that very little blood seemed to have been lost in the car. Whether there would still have been time at Altnagelvin to save Seamus Cusack’s life, is something which we will never know.

Was Seamus Cusack armed?

(46) Eleven witnesses testified that they saw Cusack in Mrs Meanan’s front garden before he was shot. All say definitely that he had no rifle or other similar weapon, and if he had, they would certainly have noticed. They were equally emphatic that O’Hagan also was unarmed. We therefore had to consider first whether they could have been mistaken; secondly, whether they were deliberately lying.

(47) On the evidence before us we concluded that there could be no possibility of mistake by the witnesses. The scene which we have described was played out in the full view of all the onlookers. Not only were Cusack and O’Hagan conspicuously visible, but they were naturally the focus of attention over a period of a minute or more to all who were present. The lighting, in the front garden particularly, was reasonably good. If either Cusack or O’Hagan were carrying a rifle, those who were looking on would have seen it.

(48) The question remains whether or not the witnesses made a deliberate attempt to mislead us by claiming they had not seen a rifle when in fact they had. In this respect it is relevant to bear in mind that no less than eleven persons stated emphatically that they had had a good view of Cusack and that he had not been armed. The ages of the witnesses ranged from seventeen to seventy; some lived in the area, others had merely been visiting or passing by; some were professional persons, some were housewives, some were unemployed; at least eight appear to have been totally non-combatant bystanders. Against this background the possibility became remote that the witnesses had conspired together either actively or tacitly to tell a story which would bring the Army into discredit. There was nothing either in their demeanour or in their evidence to lend any support to the notion of such a conspiracy. On the contrary, they gave their testimony with a spontaneity and detail which could not have been rehearsed.

(49) We accordingly concluded that the eye-witnesses made out a massive and compelling case that Cusack was not armed with a rifle at the time he was shot. Our finding in this regard is supported by a number of circumstances which taken individually might not have been too convincing but which viewed cumulatively carried considerable weight.

(50) In the first place, the evidence of Cusack’s brother and his fiancée suggest that he was not the sort of person likely to have been armed with a rifle on the night in question. His fiancée, Miss Kathleen Docherty, stated that they had been together almost every evening for two and a half years. Although he had once belonged to the Irish Army, she was sure that during the period of their courtship he was not a member of any clandestine political organisation, and she was positive that if he had possessed a rifle she would have known about it. We may add that she gave her evidence with a quiet sincerity that carried conviction. On the preceding three nights Cusack had been with her at the time when the disturbances had taken place, and on the night of his death he had only left her at about midnight. It seems most unlikely that if he had possessed a gun and planned to use it that evening he would have been able to have deceived her so completely.

(51) Secondly, it would have been an act of extraordinary foolhardiness for a man with a rifle intent on attacking the soldiers to display himself so openly, so close to the soldiers, and with such little prospect of safe retreat. A sniper could have been expected to position himself behind a wall or close to a wall at a safe distance, rather than to dash into the open within point blank range of his quarry.

(52) Thirdly, immediately after the shooting a number of persons rushed forward to help Cusack. None of them heard any mention of or had any sight of a rifle, which, if it existed, was invisible to onlookers and vanished without a trace.

(53) Finally, there is the testimony of witnesses who overheard the instructions being given to the soldiers immediately prier to the shooting. This will be dealt with later.

Was any Warning given?

(54) According to Lord Balniel, the soldier who fired the fatal shot first 'shouted a warning to the man to stand fast’. None of the eighteen eye-witnesses said they had heard any warning of any description given at the time. Some of these witnesses were very near at hand. In particular Miss Margaret McNulty, whose evidence made a particularly strong impression on us, said she was watching at her window in Block A a few feet away from the soldier in the rear garden. Her window was slightly open and she heard an order given to shoot, after which she said she saw a soldier step out and fire immediately. From her testimony and that of others close by it would seem that no warning was issued to Cusack before he was shot.

Why was Cusack shot?

(55) The question remains: if Cusack was not carrying a gun and was not ordered to stand fast, why was he shot? To seek an answer to this question, we must review the evidence of the second group of seven witnesses, whose view gave onto the rear car park.

(56) These seven stated that they had looked over the rear car park and seen the disposition of the soldiers at the time of the shooting. Six of them were in their homes looking out of windows, while the seventh stood in the street near the Stardust Club. All agree that about twenty minutes before the shooting a detachment of soldiers entered the rear car park; most if not all of the soldiers carried guns rather than riot shields. An officer - said by one witness to have been a sergeant because of his stripes - carefully positioned about a dozen of the troops in groups of two or three at various points around the area of the rear car park.

(57) Three witnesses stated that they had heard snatches of talk between the soldiers. Mr McGilloway, from his window at the back of Block B, said that the man in charge said: 'The first man through the entry is dead. If you miss…By Jesus don’t you miss. We want one man.’ Miss Margaret McNulty, at the rear of Block A, heard the sergeant giving orders not to miss. Perhaps the most persuasive account came from Mrs McCluskey, on the first floor at the end of Block C. She heard an order to shoot the first man that came around the corner, and was terrified, because her husband had gone to move his car and was expected back around that very corner at any time. She came out and remonstrated with the man in charge, even threatening to throw a bucket of water over the soldier standing below her window, but was told to be quiet and go away.

(58) It could well be that these words, if they were correctly reported to us, were spoken on different occasions; and in respect of each conversation we would have the statement of only one witness. The witnesses might possibly have put a wrong interpretation on what they heard or their recollection might have been coloured by subsequent events. But while being cautious about their evidence and the proper inferences to be drawn from it we cannot disregard it. The testimony of Mrs McCluskey in this respect was particularly important, because according to her account she inferred at the time that the soldiers were planning to shoot whoever approached them from a certain direction, and she took immediate action to protect her husband who she feared might be the innocent victim. Her fears were not without foundation. A few minutes later, her husband did appear from the direction from which Cusack had emerged.

(59) The subsequent movement of soldiers is consistent with the above-mentioned remarks having been made. Shortly before the shooting, two witnesses saw the sergeant beckon to a soldier who ran up into Mrs Meanan’s back garden to the corner of the gable wall. As has been stated, Miss McNulty heard an order to shoot and the soldier fired without delay.

(60) This part of the evidence was less clear and less well corroborated than that given by the persons who observed the front car park and Cusack’s movements. We say this not because any of the witnesses who testified to what happened in the rear car park were unimpressive, but because what they saw and heard took place over a longer time period and was subject to greater possible confusion than the more rapid and dramatic action in the front car park. We can however make some evaluation of the various alternative explanations of why Cusack was shot.

(61) The first possibility is that he was shot in error under the mistaken apprehension that he was carrying a gun. The fact that he had entered an area of relative shadow might have increased the likelihood of such a mistake. Acceptance of this hypothesis, however, is rendered difficult, not merely by the evidence referred to above, but by the express denial of a spokesman of the Army, as reported in the Press, that there was any possibility that a mistake had been made (see Colonel Jackson’s statement quoted above). Only the soldier who fired the fatal shot or the officer who gave the command can know whether or not Cusack was genuinely suspected of carrying a rifle. These soldiers have not been permitted or required to give in public their account of what happened, nor have any contemporary Army records been made available. In the absence of any explanation on their part the possibility of error can remain no more than speculative.

(62) The next possibility is that a soldier panicked and fired on impulse without authorisation. This would be consistent with the statement by Mr Geoffrey Johnson Smith that the soldier had fired ’on his own responsibility'. The attacks made on the soldiers over a period of four consecutive nights, some of which took a grave form, could well have strained the nerves of individual soldiers to breaking point. Indeed, Mr O’Dwyer and Mr Sachs both felt that in the United States and South Africa respectively, soldiers or police would not have been content to protect themselves with Perspex shields and rubber bullets, and would in all probability have taken much earlier and more drastic action against the civilians with much greater possible loss of life. Nevertheless, the Army in Londonderry may not wish their actions to he evaluated by the standards applicable in parts of the United States or in South Africa, and we do not propose to do so. Three factors militate against adoption of the ‘sudden panic’ theory. The first is that it has not been advanced in evidence or explanation by the military or by civilians. Secondly, it is contradicted by the evidence that the shooting took place during a relative lull in the conflict, when the soldiers appear to have been in ambush rather than besieged. Thirdly, it is inconsistent with the careful positioning of the soldiers and the clear order given to fire.

(63) The third possible explanation is that Cusack was fired upon more or less at random in retaliation for earlier attacks made by the crowd on the soldiers, and to deter others from future violence. This is the explanation indicated by the evidence which we heard, and the one which we must consider the most likely. We would emphasise that the best persons to testify us to why the soldiers took up the positions they did, and what their instructions were, are the soldiers themselves. But should the Army refuse to allow them to give such evidence in public, then they should not be surprised if residents of the Bogside and outside observers draw the inference that the fatal shot was fired, not at someone supposedly carrying a gun, but at the first person to have the misfortune to approach the entry where the soldiers were waiting.

D. THE SHOOTING OF DESMOND BEATTIE

The Nature of our Inquiry

(64) The inquest into Beattie’s death began on 20th July, two days before our hearings were due to start. It carried on through two and a half days of long sessions, and was concluded late on 22nd July. The evidence given was far more extensive than is normally the case in an inquest. Two soldiers who claimed to have fired shots at Beattie testified. So did officers who had witnessed the events which went immediately before. The official record of the radio messages received at headquarters was produced. Evidence was heard from a forensic expert, and from three civilians who were at the scene. Lawyers representing the Army and the next-of-kin participated and cross-examined the witnesses. It would seem that the wide demand for a full public investigation, coupled with the setting up of our own inquiry, was responsible for the evidence having been presented relatively fully.

(65) We followed the inquest proceedings with great interest. Mr Sachs attended the whole of the hearing on the second day, and the three of us heard the closing hours of the third day. At the end we had to consider how our own role was affected by what had taken place at the inquest.

(66) We were firmly of the opinion that the inquest could not be considered a satisfactory form of public inquiry. This was not the fault of the coroner who presided with great patience over the proceedings. But, because of the prevailing law in Northern Ireland, the only verdict possible was an open verdict. Both coroner and jury were precluded from expressing any view as to the liability of any party. It was to say the least unfortunate that after about twenty hours of evidence, no independent assessment of its weight and significance could be made.

(67) On the other hand the main reason why we had come to Londonderry was that the shooting of two civilians had until then been shrouded in official silence. In the Beattie case a hearing, however inadequate, had been held. There was less justification than in the Cusack case for holding a second unofficial inquiry so soon afterwards.

(68) We therefore decided not to go over the ground already covered by the inquest, but to take notice of the evidence given there and to hear only such further evidence as might be specially relevant. On the morning of 23rd July we were informed that Father Anthony Gillespie had travelled over from England solely to tell us what he had seen of Beattie’s death. His evidence, which had not been available to the inquest, was crucially relevant and we accordingly heard it, together with testimony from three other persons who were so placed as to be able to confirm much of what he said.

(69) Our report is based upon a study both of the depositions taken before the coroner and of the evidence which we heard. Together they form a more complete picture than was presented to the coroner’s court, and a fuller account than we would have been able to obtain by ourselves.

Background to the Shooting

(70) Eight members of the Army gave evidence at the inquest. Six of these spoke only of the events immediately preceding the shooting and in general terms their account has not been disputed.

(71) The fatal shooting of Seamus Cusack during the previous night had clearly produced angry reactions from many local people. Protest marches were held and during the second of these, at about 2.30 p.m., there was heavy stoning of the troops at Butcher’s Gate.

(72) At about 3 p.m. the commanding officer of the 1st Battalion of the Royal Anglian Regiment decided to send a detachment of troops to Fox’s Corner, and a further detachment towards St Columbs Wells. The object was to capture some of the stone-throwers by means of a pincer movement. (Fig 2)

(73) This led directly to the final confrontation of troops and civilians at the Lecky Road/Westland Street junction. The crowd had run from Butcher's Gate, down Fahan Street and into this junction. To the north. towards Fox’s Corner, the troops had taken up positions. They were accompanied by three or four armoured cars, one of which was rammed just north of the junction by a coal lorry. About 20 yards south of the junction, opposite McKeowns Lane, a hijacked lorry full of bricks had been placed across Lecky Road to form a barrier. The crowd, some in Westland Street and some around the brick lorry, stoned the troops for several minutes, after which the stoning seemed to slacken off.

(74) This was the scene shortly after three o’clock, when there occurred two or three explosions in quick succession under one of the armoured cars. Soldiers were of the opinion that they were caused by nail bombs. According to a witness watching from the Bogside Inn, a bomb-thrower came from Westland Street and ran back up it straight afterwards. The bombs injured four soldiers standing by the armoured car, one of them badly, It was a few seconds after the explosions that Desmond Beattie was killed.

(75) It will be clear from this account that, in complete contrast to the Cusack case, the shooting of Beattie was preceded by an extremely serious and violent occurrence. It was not unreasonable for the soldiers to fear a further lethal attack, and not unreasonable, if a bomb-thrower was seen about to go into action, for them to use firearms against him, if not to kill, then at least to disarm him.

The Army’s Case

(76) The Army’s evidence regarding the actual shooting came from two soldiers who were identified only as soldiers A and B. Soldier A was an officer in command of a platoon of the Royal Anglian Regiment; soldier B a member of that platoon. Both were positioned near the Lecky Road/Westland Street corner, looking southwards along Lecky Road.

(77) After the explosions, both men said that they saw about a dozen men around the brick lorry, 40 yards away, engaged in some form of conversation. About a foot away they saw another man in dark clothing and a lightish shirt, holding a dark object in one hand and a flaming object in the other. He was bringing the two objects together, and looking towards the soldiers as if for a target. Independently, the two soldiers aimed at the man’s chest and fired. They were convinced that he was about to throw a bomb.

(78) After the shots, at least one of which must have missed, the man stumbled and fell. The man’s companions gathered around him and carried him off behind the lorry. No other shots, according to the Army evidence, were fired in the area at the time.

Other Evidence at the Inquest

(79) Aside from the soldiers’ testimony, significant evidence was as given by other witnesses.

(80) Mr Beavis, of the Forensic Science Department of the Ministry of Home Affairs, stated that after making every possible test on Beattie’s body and clothing, he could find no incriminating evidence of any kind to suggest that Beattie had been in possession of a bomb. He had tested for traces of petrol and other volatile materials, nitro-glycerine and firearms discharge residue. Previous experience had shown that detectable amounts of nitro-glycerine had been discoverable in 50% of cases of men known to have handled nail bombs, and if a bomb had been in Beattie’s pockets then there certainly would have been traces.

(81) Dr Marshall, the pathologist who carried out the post-mortem, said that a single bullet had entered the body on the left side of the chest and exited at the front of the right side of the chest, passing through the heart and causing instantaneous death. The angle of penetration was such that had the deceased been erect, the bullet must have been travelling upwards at an angle of 20° to the ground.

(82) The Army log book revealed that the message relating to the shooting was received at 3.13 p.m. from a sub-unit commanded by soldier A. It read: ‘ Fired round at man who fired at him. Man was dragged off.’ Another message received from another commander at the same time read: ' Fired round at man who fired at him.’ Soldier A stated that immediately after he fired, he had ordered a message to be sent saying that a bomber had been fired at.

(83) Miss Morrison, who was working in a chemist's shop in Meenan Square, saw a man fall about 20 yards south of McKeown's Lane. She thought he was standing about before he fell. At some point - she thought after the man fell - she saw a soldier looking around the corner at the far end of McKeowns Lane. The man whom she saw fell was undoubtedly Beattie. He was carried to the roadside and attended by Father Gillespie.

The Evidence given to our Inquiry

(84) Father Gillespie had been on holiday for a month with his family, who lived in the Lecky Road, about 70 yards south from McKeowns Lane. He told us that on the day of the shooting he had been walking home from Shipquay Street at about 2.30 p.m. and had stopped to observe the disturbances at Butcher’s Gate. He saw the crowd and soldiers gathering by Westland Street, and decided to make for his parents’ home via St Columb’s Wells and McKeowns Lane. He saw troops in St Columb’s Wells. He waited for a time at the bottom of McKeowns Lane, at the rear of the brick lorry. He was worried about a family who he knew were living directly next to the troops’ position and wondered whether to go to them.

(85) In this position he heard two or three explosions and saw the armoured cars shake. Several people ran past him down the Lecky Road to the south. He turned towards McKeowns Lane and saw two or three soldiers there, pointing rifles towards the running men. One of the running men stumbled and fell, 15 yards south of where the witness stood, blood splashing from him. Immediately afterwards Father Gillespie heard four shots. He saw the dead man dragged to the roadside, and a girl beckoned him over. By now he saw that the soldiers in McKeowns Lane had their rifles in the air. When he reached Beattie, he already appeared to be dead. Nevertheless he administered last rites to him.

(86) We found no reason to consider Father Gillespie untruthful or seriously inaccurate; on the contrary, he gave his evidence calmly and with precision. In his opinion, the shot which struck Beattie had almost certainly come from the soldiers in McKeowns Lane, and not from soldiers A or B, whose view of Beattie must have been obstructed by the brick lorry. Furthermore, Beattie had been well behind the brick lorry at the time he was shot, with his back to where soldiers A and B would have been, and accordingly was neither in the position or performing the actions of the man soldiers A and B claimed they had shot at.

(86 i) Father Gillespie’s account was supported by the evidence given to us by Mr Tully and Mc McLoughlin, both of whom were residents of St Columb’s Wells. They confirmed that there were soldiers in McKeowns Lane, about half-way down, at the time of the shooting. Mr Tully believed that he actually saw a soldier fire about four shots, without taking aim, across the waste ground towards Lecky Road. Mr McLoughlin saw soldiers go down the lane after the explosion, heard four shots, and then saw a soldier hand his rifle to a radio operator and take the radio from him. Neither witness was in a position to see the spot where, according to Father Gillespie, Beattie stumbled and fell.

(87) We finally heard evidence from Mr Casey, watching from the Bogside Inn, who saw a soldier pointing a rifle on the Westland Street/Lecky Road corner, from where soldier A said that he had fired. Mr Casey could not say what shots were fired, or from where they came; he had earlier seen a bomb-thrower dash into Westland Street after hurling a bomb at the armoured cars.

Where was Beattie shot?

(88) The place where Beattie was when he was shot was evidently a crucial issue in this inquiry. Soldiers A and B assume that he was standing on the north side of the brick lorry. We say ‘assume’, because although they saw the man at whom they shot fall back, they were not in a position positively to verify whether he was hit, where he was hit, or who he was. Father Gillespie and Miss Morrison, on the other hand, say that they saw Beattie fall 15 - 20 yards south of the brick lorry down Lecky Road.

(89) It should be said at once that we have no reason to dispute that soldiers A and B saw a man about to throw a nail bomb standing by the brick lorry, or that they shot at him. (None of the civilian witnesses either at the inquest or the inquiry were in a position to see whether or not a bomb-thrower was standing to the north of the brick lorry.) The question is, was that man Desmond Beattie?

(90) Leaving aside for a moment the evidence of Father Gillespie, we consider that on the basis of the evidence presented to the inquest alone, there are strong grounds for doubting whether the assumption made by soldiers A and B is correct. We base this view on the following matters:

(i) The negative findings of the forensic science expert. If the bomb-thrower seen by the soldiers had been Beattie, not merely would there have been a 50% chance of finding traces of nitro-glycerine from the nail bomb, but there must have been an added chance - we do not know how likely - of finding evidence that he had handled a flaming object such as the soldiers described the bomb-thrower to have held. Furthermore, no traces of a bomb were found in his pockets.

(ii) The position and angle of the entry and exit wounds in the body, totally inconsistent with the account given of a standing man exposing his chest towards the soldiers’ aim.

(iii) The absence of any blood by the lorry, or at any point north of the spot where Miss Morrison saw Beattie fall. No express evidence on this point appears to have been led at the inquest, but from questions put on behalf of the Army and the next-of-kin to the forensic expert, it seems to have been accepted by both sides. Mr Hutton on behalf of the Army was indeed forced to propound a theory that Beattie fell first on his back, causing no blood to he shed on the ground, and then, after being carried some 15 - 20 yards, fell on his front, causing blood to gush out.

(iv) The entry in the regimental log book to the effect that a shot was fired at a man who had fired at the soldiers, which cannot be reconciled with the evidence of soldiers A and B that they, and only they, fired shots at a bomb-thrower.

(v) The evidence of Miss Morrison, who while she admitted that her attention was attracted to Beattie by his fall, would probably have noticed and remembered if just before he fell he had been escorted, dead or dying, down the Lecky Road, as was suggested to her by Mr Hutton.

(vi) The statement by soldier A that there was nothing noteworthy about the appearance of the man at whom he shot, whereas, according to Mr Hill, counsel for the next-of-kin, Beattie had had shoulder-long hair at the time of his death.

(91) Taken one by one, these points could be answered. Beattie might have handled a bomb without leaving traces. He might have moved sideways just before being hit. His blood might not have fallen to the ground at the time. A radio operator, either at the scene or at headquarters, might have misunderstood the message. Miss Morrison might have been mistaken. But taken together, the strongest doubts are raised. We emphasise again that they are raised not about the truth of soldiers A and B's testimony, but about the correctness of any assumption based on their evidence that Beattie was the bomb-thrower at whom they aimed.

(92) When one turns from the inquest evidence to the testimony of the man best placed to see Beattie fall, namely Father Gillespie, then the possibility that Beattie was the man aimed at by soldiers A and B becomes even more tenuous. Father Gillespie's account was clear: Beattie fell as he was running down and across the road from the end of the brick lorry on the east side of the road. in the direction of Father Gillespie’s parents’ house on the other side. He was one of a number of men who had run directly past Father Gillespie in their flight from somewhere close to the lorry.

(93) Father Gillespie gave his evidence in a straightforward and precise manner. His presence at the scene, and even his stay in Londonderry, appeared to have been quite fortuitous, and we could think of no reason why he should have falsely reported what he had seen. In our opinion his evidence effectively disposed of the hypothesis put to Miss Morrison at the inquest, namely that Beattie was escorted from the side of the lorry down the road, dead or dying, by his friends. If that had happened, Father Gillespie, whose view was clearer even than that of Miss Morrison, would undoubtedly have seen it.

(94) Moreover, the account given by Miss Morrison and Father Gillespie seems to be generally consistent with the forensic and medical evidence, and explains why the pool of blood was found in the place as alleged. We observed two apparent minor inconsistencies between Father Gillespie’s evidence and that of others: his recollection of hearing four shots after the shooting (others heard two), and his statement that Beattie was running when he fell (Miss Morrison, rather uncertainly, thought he was standing). These discrepancies in no way invalidate the general pattern of his evidence, taken together with all the other evidence in the case.

(95) On all the available evidence, therefore, it would seem clear that Desmond Beattie was shot at a point 15 - 20 yards down Lecky Road from the brick lorry, and that he was not the man described by soldiers A and B as standing north of the lorry facing towards them and holding a nail bomb in his hand.

Who killed Desmond Beattie?

(96) Leaving aside the implausible theory that there was a sniper on the Derry Walls, the fatal bullet could have been fired in only two ways, either by soldier A or B from the Westland Street corner, the bullet passing through or ricocheting off the cabin of the brick lorry, or by a soldier standing in McKeowns Lane.

(97) We cannot altogether discount the possibility that the bullet of soldier A or B found its way through the lorry into Beattie’s body on the other side. It would accord with the evidence of some witnesses at the inquest, civilian as well as military, that only two shots were fired. It would accord with the statement of Colonel Jackson that no other soldiers fired shots on that afternoon. The cabin of the lorry was more or less in direct line between the position of soldiers A and B and the position of Beattie when he fell. One would have thought the cabin of a lorry was too high above the ground for a bullet going straight through it to have hit Beattie. Also, because of the bricks stacked high on the lorry and its position across Lecky Road, there would seem to have been no other way for a chest-high bullet to have travelled other than through the cabin. But we do not have the evidence upon which to judge these matters conclusively, and we do not have the expertise upon which to assess the likelihood of a ricochet. Therefore, although it seems improbable, we cannot discount this theory as impossible, namely, that Beattie was killed by a bullet meant for someone else.

(98)Many factors however point to McKeowns Lane as having been the source of the fatal bullet. In the first place there were soldiers in McKeowns Lane, as witnessed by Father Gillespie, Miss Morrison, Mr Tully and Mr McLoughlin. In view of the statement by Colonel Jackson that a sub-unit had been sent to St Columb’s Wells, this is hardly surprising. Secondly, they were seen by those witnesses to be acting in a way which was strongly indicative of at least one of them having fired. Father Gillespie says that he saw rifles pointed; Mr McLoughlin that a man handed over a rifle; and Mr Tully, that he actually saw a man fire.

(99) Thirdly, the only evidence that shots were not fired from McKeowns Lane came from Colonel Jackson, who presumably was relying on hearsay information reported to him. None of the soldiers posted to St Columb’s Wells gave evidence at the inquest; it was they, and they alone, who could account for their conduct as testified to by the civilian witnesses. In a matter of this kind a general denial by a representative of the Army, however sincerely offered, cannot exclude explicit testimony by eye-witnesses, though it would render it necessary to approach that testimony with particular caution.

(100) Fourthly, the flight of the bullet through Beattie’s body would indicate that it was fired from Beattie’s left and to his rear. If Beattie was running away from the lorry down Lecky Road, this is precisely where a bullet from McKeowns Lane would have hit him.

(101) To rebut the McKeowns Lane theory there remains only the evidence that only two shots were fired. However, the state of the testimony regarding the number of shots heard by witnesses is most unsatisfactory. Evidently reactions were confused by the explosions, since many of the soldiers present heard no shots at all, Mr James Curran one, Mr Henry Curran two or three, and Father Gillespie, Mr Tully and Mr McLoughline four or five. In the circumstances we do not consider this conflict either surprising or of special significance.

(102) Accordingly our conclusion on all the available evidence is that the shot which killed Desmond Beattie almost certainly was fired by a soldier standing half-way down McKeowns Lane, aiming his gun across the waste ground to Lecky Road. If this conclusion is correct, it means that the soldier who fired the shot had heard, but not seen, the explosions around the corner to the north. It may be that he believed that he was himself being fired on, and sent a message to headquarters to that effect, but if this is so, he has not come forward in public to state as much. Because of the explosions, a dangerous situation for the soldiers certainly existed. From the evidence which has been made public, however, it appears that the man who killed Desmond Beattie almost certainly fired at a group of men running away from the scene of an explosion, rather than at anyone about to attack the Army.

Was Desmond Beattie armed?

(103) The answer to this question follows from the conclusions already drawn. Although we do not know what Beattie was doing in the vicinity of the lorry before he ran down Lecky Road, we are satisfied on strong probabilities that he was not the man who was about to throw a bomb. This being the case, there is no other evidence to suggest that he was carrying a bomb, or threw a bomb, or used any other such lethal weapon.