The Bloody Sunday Tribunal of Inquiry - A Report by Professor Dermot Walsh for the Bloody Sunday Trust {part 4}

Importance of Accountability
Accountability lies at the heart of the role of a Tribunal appointed under the 1921 Act. A Tribunal is only appointed under this Act on the rare occasions when it is essential that a matter of grave public concern should be investigated thoroughly to the full satisfaction of the public. Lord Salmon explains the heavy burden of responsibility that rests on such Tribunals as follows:

"There are, however, exceptional cases in which such [Tribunals] must be used to preserve the purity and integrity of our public life without which a successful democracy is impossible. It is essential that on the very rare occasions when crises of public confidence occur, the evil, if it exists, shall be exposed so that it may be rooted out; or if it does not exist, the public shall be satisfied that in reality there is no substance in the prevalent rumours and suspicions by which they have been disturbed."^[35]

In the context of Bloody Sunday, the Tribunal could not discharge this accountability mission simply by investigating and reaching conclusions on how each of the deceased came to be shot, and whether the individual soldiers had acted recklessly in shooting them. Accountability in this context also requires a full and transparent investigation of all factors which contributed to the deaths. In order to restore public confidence in government and the Army, the public would need to be satisfied that the deaths were not, for example, simply the price that had to be paid to put a new political/security strategy into effect or the result of an ill-prepared or misconceived military operation. Equally, of course, if the deaths were the result of any such factors then the public would want to be satisfied that they and the persons responsible were fully exposed so that others could take any necessary punitive measures and whatever measures were necessary to ensure that there was no repeat.


Public Confidence
The Tribunal's Report can be interpreted largely as an assertion that there was no "evil" to be rooted out in the light of events on Bloody Sunday. Even though it concluded that the firing of some soldiers "bordered on the reckless" it merely attributed this to "differences in the character and temperament of the soldiers concerned." Moreover, it clearly implied that all of the firing was done in accordance with the limits of the standing orders of the yellow card which it considered satisfactory. The only possible hints of criticism of the Army in he Report's conclusions was to the effect that if they had persisted with a "low-key" attitude the day might have passed off without serious incident, and that the Army may have underestimated the risk to civilians posed by the circumstances of the arrest operation. However, these are more than offset than by the very first (and bizarre) finding in the Summary of Conclusions to the effect that those who organised the march were responsible for the deaths. The findings on every other allegation against the Army was resoundingly in favour of the Army. As well as those mentioned above these include: the decision to contain the march within the Bogside "was fully justified by events and was successfully carried out;" the use of 1 Para as an arrest force was sincere; there was no breach of orders in the launching and conduct of the arrest operation; and there was no general breakdown in discipline. The question arises, therefore, whether the Tribunal has discharged its task successfully by investigating and concluding effectively that there was no "evil" to be rooted out. Will these findings in favour of the Army restore public confidence in "the purity and integrity of our public life without which a successful democracy is impossible"?

It is a sad fact of life in Northern Ireland that there is a section of public opinion which would not be unduly concerned whether the Army had fired on unarmed civilians in the Bogside. There is an even larger section who would simply refuse to believe that the British Army would do any such thing. There are also those who would be only too willing to believe it irrespective of the evidence. It is axiomatic that these sections of the public are not going to be profoundly influenced by the contents of the Tribunal's Report one way or the other. The success of the Report cannot be judged by the extent to which it mollifies or confirms their prejudices. It must be judged against its capacity to satisfy the reasonable person who would be appalled at the notion that the Army of a democratic State which is founded on the rule of law could fire on its own unarmed civilians, killing 13 and wounding 15, while they were engaged in a public protest hostile to the government of the day.

This paper has exposed aspects of the Tribunal, and the manner in which it conducted the Inquiry, which suggest that a reasonable person could not place his or her confidence in the Tribunal's findings. Most of the relevant factors are summarised in the conclusion to the section on "Bias" above. Even if attention was confined to the public Tribunal proceedings and the Report itself, there is ample evidence to suggest that the Tribunal scored sufficient own-goals to ensure that it could not realistically hope to persuade those who were most suspicious. When the recently released material is thrown into the equation, it is submitted that even those who were inclined to disbelieve the allegations at the outset would now have grounds for concern. The new evidence of the manner in which the Tribunal conducted the investigation, formulated its conclusions and wrote its Report is sufficient to create a suspicion where previously none might have existed. In short, the Tribunal's exercise in accountability has back-fired.


The Broader Issues
The Tribunal's failure to generate public confidence in its investigation of the actual shootings, is compounded by its failure to address the broader issue of concern generated by the events of Bloody Sunday. It was clear, for example, that the decision to use force to contain the march within the Bogside was taken at a political level. The Tribunal, however, made no move to call the political decision-makers or the security chiefs concerned to give evidence. Nor did it permit counsel for the deceased to pursue the matter. This must be viewed as a serious dereliction of duty on the part of the Tribunal. There was a strong suspicion prevalent among the Bogsiders that a political decision had been taken to use the march as an opportunity to restore the hegemony of the security forces in the Bogside and to placate unionist discontent with the softly-softly approach to unlawful civil rights marches. In other words the deaths and injuries would not have occurred on the scale they did if the operation had not been planned and executed primarily in order to achieve certain political consequences.

It would be difficult to conceive of more serious charges against the government and security chiefs in a democracy based on the rule of law. It was essential, therefore, that the Tribunal of Inquiry should investigate fully and vigorously the nature and extent of the admitted political involvement in the decision which ultimately led to the deaths and injuries. Full and frank disclosure on the matter was a pre-requisite for the restoration of confidence in the integrity of government. The Tribunal's failure to address it meant that one of the most important issues that had to be resolved was not even considered. Indeed, it is worth noting in this context that Lord Widgery never intended to address it. The memo of the meeting between the prime minister, the Lord Chancellor and himself clearly reveals that he wanted to keep the focus of the Inquiry on the actual events that occurred on the streets. It is respectfully submitted that this displayed a fundamental misunderstanding of the vital role and importance of the Inquiry which he was to chair. The result was a major defeat for accountability, democracy and the rule of law by default.

Another major issue that the Tribunal of Inquiry could have been expected to address was the propriety of a large number of armed soldiers engaging gunmen and bombers (assuming for the moment that there were some) in a confined space where there was a large number of people about. The scenario which was described repeatedly to the Tribunal by witnesses across the board was that of soldiers shooting to kill in circumstances where large numbers of civilians were at risk. On several occasions soldiers gave a description of themselves pursuing rioters while dodging bricks and bottles, and then breaking off to shoot at a gunman or someone holding what looked like a nail bomb. When it is considered that the bullets they were firing had a range of over two miles and that they were firing in relatively confined spaces, such as the courtyard of Rossville Flats and Glenfada/Abbey Park, with large numbers of people about, there must be cause for concern. That concern can only be heightened by the evidence of many soldiers to the effect that they considered themselves entitled to shoot at a gunman or bomber even if civilians were in the background and at risk. Moreover, their training was such that their instinctive reaction in such situations would be to shoot to kill first.

The inevitable question arises whether there should be a serious re-think about whether soldiers trained to think and act in that manner should be sent in, fully armed, to enforce law and order in a riot situation where there were large number of civilians about. Bricks and bottles can so easily be mistaken in the heat of the moment for nail and acid bombs. Inevitably there must be a very high risk that these soldiers will react with lethal force and disastrous consequences not just for stone throwers, but also for innocent civilians who happen to be in the vicinity. Is this risk acceptable?

Incredibly there is no evidence to suggest that the Widgery Tribunal even recognised the importance of this issue, let alone addressed it. The closest that it came was its spurious findings that those soldiers who claimed to have fired at gunmen did so in accordance with the terms of the standing orders in the yellow card. It went on to hold that these standing orders were satisfactory. However, the Tribunal considered these matters only in the narrow context of a soldier engaging a gunman or bomber. It did not consider the broader issues which were very pertinent to the Bloody Sunday type situation: should a large body of soldiers engaged in an arrest operation engage a large number of gunmen (assuming for the moment that the Army version is true) in circumstances where a large number of civilians were at risk? should the soldiers concerned withdraw to cover until the civilians were out of danger and/or call in specialist marksmen? should there be a tightening up of the rules governing the use of firearms in such circumstances to avoid the attendant risk to civilians? These are issues that the Tribunal did not address despite the fact that there would be further marches and riots in which the Army would be called in to conduct arrest operations and enforce order. What use is a Tribunal of Inquiry if its investigation and Report do not contribute to the means of avoiding a repeat of the events it had to investigate. Indeed, it will be interesting to see if the Dunblane Inquiry adopts a similar ostrich-like attitude to this fundamental aspect of its work.

Finally, it is worth noting that no soldier was ever prosecuted for the deaths and injuries inflicted on Bloody Sunday. Of course, that is not something that can be attributed directly to the Widgery Tribunal. Its function was merely to establish the full facts to the satisfaction of the public. If those facts disclosed wrongdoing by any party concerned it would be up to others to take the necessary action. Carefully tucked away in the body of the Report there are actually some findings which could be considered as evidence of wrongdoing on the part of the soldiers concerned. Referring to the four deaths in Glenfada/Abbey Park the Report states:

"However, the balance of probability suggests that at the time when these four men were shot the group of civilians was not acting aggressively and that the shots were fired without justification."^[36]

On 30 January 1972 (Bloody Sunday) 13 men were shot dead and a further 15 wounded in the vicinity of a protest march and a riot on the streets of the Bogside in Derry. No guns or bombs were recovered from the dead and wounded and no photographic or video evidence was produced to show that they were in possession of guns or bombs when shot. It was alleged that the soldiers had shot 28 unarmed civilians in circumstances where there was no immediate threat to the life of any of the soldiers concerned. These were the most serious allegations ever to have been made against the British Army in peace time since the enactment of the Army Act in 1881. If it transpired that there was any basis for them at all, swift and decisive action would be required from the British government and the criminal justice system in order to preserve and restore public confidence in the integrity of British denocracy and the rule of law.

A Tribunal was appointed under the Tribunals and Inquiries (Evidence) Act 1921 to investigate the allegations under the sole chairmanship of Lord Chief Justice Widgery. Its primary tasks were to:

• establish the truth about what happened on Bloody Sunday;

• satisfy the public that the full facts had been established; and

• generally help restore public confidence in the integrity of government.

Ever since the Tribunal published its Report in April 1972 there have been very substantial grounds to believe that it has not managed to achieve any of these objectives. In the Summer of 1996, primarily as a result of efforts by the solicitors for the deceased and the Director of British-Irish Rights Watch, a whole body of documents connected with the Tribunal were released for public inspection for the first time by the Public Records Office in London. The Tribunal proceedings and Report have been interpreted in the light of these newly released documents and the results deal a devastating blow not just to the credibility of the Tribunal's findings but also to the whole manner in which they were reached.

The documents reveal that for almost every soldier who fired one or more shots on Bloody Sunday there are substantial material discrepancies between the account offered in the statement made on the night of 30/31 January and the version given in evidence to the Tribunal. The nature and extent of these discrepancies are such that they not only render the soldiers' evidence unreliable, but they also give grounds for charges of murder or attempted murder against some of the soldiers concerned. Even more disturbing perhaps is the fact that the soldiers' original statements were available to counsel for the Tribunal and Lord Widgery himself (but not counsel for the deceased). It beggars belief, therefore, that the Tribunal should proceed to base its findings so heavily on the premise that the evidence given by the soldiers at the Tribunal was honest and reliable. The immediate and inevitable result of this approach is totally to discredit the bulk of the findings of the Widgery Tribunal. They are based on evidence which is fundamentally flawed.

The Tribunal's approach to the Army evidence also raises some very profound questions about the legality of its own performance. The very fact that it ignored the fatal flaws in the soldiers' self-serving testimony and preferred it even to conflicting testimony from reliable and independent sources, raises the suspicion that the Tribunal was biased in favour of clearing the Army of any serious wrongdoing. The documents released by the Public Records Office provide compelling and disturbing support for this suspicion of bias. They reveal that the prime minister and the Lord Chancellor met privately with Lord Widgery before he embarked upon the Inquiry. The confidential memo of this meeting clearly reveals the prime minister attempting to influence the location of the Tribunal sittings and the whole approach of the Tribunal in a direction sympathetic to the concerns of the Army. Further documents reveal the Secretary to the Tribunal, a senior civil servant, not only drafting whole sections of the Report but also seeking to have key parts of the Report written in a manner sympathetic to the Army. Most disturbing of all is the fact that they portray Lord Widgery himself as being prepared to play down evidence favourable to the deceased and amplify evidence favourable to the Army.

These factors are sufficient in themselves to create a very strong suspicion that the Tribunal was in fact biased in favour of the Army. It must be remembered, however, that there are many other factors which have always cast the suspicion of bias over the Tribunal, its proceedings and its Report. These include: the composition of the Tribunal; the choice of location; the choice of Treasury Solcitor to service the Tribunal; the conduct of the proceedings as an unequal adversarial contest; the inappropriate haste with which the proceedings were conducted; the narrow interpretation of the terms of reference; the discriminatory application of the terms of reference; the failure to call any of the witneses who gave 700 statements to the Northern Ireland Civil Rights Association; the elevation of "who fired first" into the most imprtant single issue that had to be determined; the failure to examine all the shots fired by each soldier; and the style in which the evidence and findings were presented in the Report. When these factors are added to the suspicion of bias emerging from the newly released documents, the only credible conclusion is that the Tribunal's Report is so infected with the appearance of bias that it lacks any credibility.

Then there is the issue of the grave matters which the Tribunal effectively ignored: the shootings which did not result in death; the political contribution to the events that resulted in the deaths and injuries; and the measures that would need to be taken to avoid a repeat of these horrific events. Surely, answers to these fundamental issues are essential if the public are to be satisfied that the full facts have been established, those responsible have been clearly identified and that any steps which need to be taken will be taken to ensure that the government and the Army act only in accordance with the rule of law.

The fundamental purpose in appointing a Tribunal under the Tribunals and Inquiries (Evidence) Act 1921 is, of course, to establish the facts in a matter of grave public concern and satisfy the public that the full facts have been so determined. There has been no greater challenge to the basic foundations of our democracy and the rule of law than the charges that were levelled at the British Army and the British government 25 years ago in the wake of Bloody Sunday. The Widgery Tribunal had to rise to that challenge and restore confidence where it had been lost. The only conclusion that can be reached on the basis of the analysis in this paper is that it has failed. In the light of its excessive reliance on flawed evidence, the extent to which its Report is infected with the appearance of bias and its failure to address some of the fundamental questions posed by the days events, it cannot realistically be suggested that the Widgery Tribunal has discharged its obligations. It follows that, twenty five years later, the events of Bloody Sunday have yet to be fully and fairly investigated by a Tribunal appointed under the 1921 Act. The needs of truth, justice and the rule of law have yet to be served.

Professor Dermot PJ Walsh
Law Department
University of Limerick

January 1997

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