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Bloody Sunday and the Rule of Law in Northern Ireland

Review Number: 149 Publish date: Wednesday, 1 November, 2000 Author: Dermot Walsh Date of Publication: 2000 Publisher: Macmillan Place of Publication: London Reviewer: Brian Griffin

Over the past three decades the North of Ireland has been plagued by injustice. This has taken a variety of forms, ranging from sectarian intimidation or discrimination in the workplace to intimidation of entire communities, the systematic denial of human rights and murder, both mass murder and the seemingly less- newsworthy killing of individual civilians and members of the security forces. The incidence of these individual killings has been so frequent that few stand out when one casts one's mind over the catalogue of horrors, unless one is personally acquainted with the victims. Instead, it is the mass killings that linger in the memory, serving as grim milestones in the history of the Troubles. The Abercorn bombing, Bloody Friday, Claudy, the Shankill Butchers' killings, La Mon, Warrenpoint, Ballykelly, Loughgall, Enniskillen, Ballygawley, Loughinisland, Greysteel, Omagh - these are just a representative sample from the North of Ireland. Britain and the 26 Counties have, of course, also suffered scenes of carnage during the same period.

One of the earliest instances of multiple killing in the Troubles was the Bloody Sunday massacre of 30 January 1972, in which British soldiers killed thirteen civilians in Derry - a fourteenth victim died of his wounds later. Bloody Sunday is particularly noteworthy in the North's catalogue of injustice, as one can argue that the killings and the controversial tribunal of inquiry into the killings - the Widgery tribunal, which exonerated the actions of the British troops involved in the shootings and suggested that most of the victims were either gunmen or bombers - convinced Nationalists that justice could not be obtained from the North's political and judicial system. Recruits flocked into the ranks of the Provisional IRA, out of a desire for revenge and convinced that only violence could deliver justice for the Nationalist community. One can argue, therefore, that much of the death and suffering in the decades that followed, be it at the hands of Republican and Loyalist paramilitaries or the security forces, can be either directly or indirectly attributed to the fallout from Bloody Sunday.

It is a matter of central importance, therefore, that the truth behind the events of Bloody Sunday be ascertained. For the historian this is merely a matter of setting the record straight, of trying to arrive at an assessment of these events that accords with the evidence. For the bereaved relatives of the killed and the relatives of the injured, the hope is that the truth will, at long last, enable justice to be done: justice to the civilians whose reputations were tarnished by the Widgery tribunal and, possibly, justice to those responsible for the killings and woundings on that terrible day. The author of this book, Dermot J.P. Walsh, has been a key figure in the long-running search for justice for the Bloody Sunday victims. His The Bloody Sunday Tribunal of Inquiry: A Resounding Defeat for Truth, Justice and the Rule of Law , a work which subjected the transcript of the Widgery tribunal to minute scrutiny in the light of recently released documents in the Public Record Office, was one of several new publications in the 1990s that the Irish government relied on when seeking to convince the British government of the utter unreliability of the Widgery tribunal and of the need for a fresh tribunal of inquiry. The fact that the Saville tribunal is currently reinvestigating the events of Bloody Sunday can be seen, in part, as testimony to Walsh's forensic skill in casting serious doubt on the veracity of the Widgery tribunal's findings.

Walsh's latest book builds on his earlier report into the Widgery tribunal. After pointing out that, for many Nationalists, Bloody Sunday and the Widgery tribunal confirmed them in their belief that justice was unobtainable in the North, Walsh explains that the purpose of his book is to 'address the extent to which nationalist criticisms of the Widgery Tribunal and its report are justified, the role which the law and justice system has played in the whole Bloody Sunday experience and the progress, if any, which has been made since in restoring respect for law and justice in Northern Ireland' (pp 13-14). What is 'on trial', then, in this book is not just the Widgery tribunal but the entire system of justice throughout the Troubles.

Walsh's verdict on both Widgery and the justice system in general is scathing. In Walsh's account the Widgery proceedings come across as less interested in discovering the truth about the events that led to the Bloody Sunday killings than in delivering findings in favour of the security forces. Walsh provides compelling evidence to support the argument that the tribunal was biased in favour of the security forces and thus that its findings were fatally flawed. Widgery, an ex-Army officer, persisted in believing, or at least professing to believe, the evidence of soldier witnesses that they had come under sustained gunfire and bomb attack before they fired on their attackers, rather than the evidence of civilians, including priests and journalists, that the victims were all unarmed and that the only people who were shooting were soldiers, mainly members of the Parachute Regiment. Walsh establishes that the evidence given by soldiers to the tribunal is significantly different than that given by them to the military police on the night of Bloody Sunday. The original statements, which have only recently come to light, were not made known to the counsel for the relatives of the dead, a startling oversight in a tribunal of inquiry whose purpose was supposedly to discover the truth about what occurred on Bloody Sunday. Walsh suggests that the original statements contain sufficient evidence to have supported charges of murder against some of the soldiers who made them, and that significant alterations were made in order to place soldiers' actions in a less damning light and in order to bring a semblance of plausibility to their accounts at the tribunal. Walsh shows that nevertheless the evidence given by numerous soldiers at the tribunal was riddled with inconsistencies, contradictions, omissions and obvious falsehoods, to such an extent that it is difficult not to suspect an element of bias in Lord Widgery's strongly expressed faith in their testimony.

It is not just Lord Widgery's mental gymnastics when deciding whether to believe the conflicting evidence of soldiers or civilians that raise questions about the impartiality of the tribunal. Walsh makes a strong case that the tribunal's findings were likely to be compromised from the very outset, given a number of crucial decisions concerning the tribunal proceedings. The decision to hold the tribunal in the mainly Unionist town of Coleraine rather than in Derry, which smacked of bias against civilian witnesses from Derry, was merely an outward manifestation of an in-built partiality in the entire Widgery process. Although the tribunal was supposed to be 'public, independent and judicial', a meeting was held between Prime Minister Heath, Lord Chancellor Hailsham and Lord Widgery on the evening of 31 January 1972 - the day after the Bloody Sunday shootings and the day on which the decision to hold a judicial inquiry was announced - apparently to discuss how the inquiry would be conducted. According to a confidential memorandum of the meeting, Heath reminded Lord Widgery that '[i]t had to be remembered that we were in Northern Ireland fighting not only a military war but a propaganda war' (p.63). As Walsh comments, 'The tone and content of the discussion and the decisions taken reflect an agenda designed to steer the inquiry in a direction favourable to the interests of the army and the British establishment generally'.

According to critics of the Widgery tribunal, one of the crucial ways in which this agenda was manifest was the way in which the tribunal was held in an adversarial rather than an inquisitorial fashion. Walsh reminds the reader that tribunals of inquiry are supposed to be interested in arriving at the truth behind an issue of unusual public importance, not in apportioning blame. Once a tribunal of inquiry arrives at the truth, it is up to others to decide where fault lies and to press criminal charges if deemed necessary. A tribunal of inquiry is not a court of law, in which two adversaries contest the evidence and the verdict as to where the truth of the matter most probably lies rests with a jury. However, the Widgery proceedings were conducted more along the lines of an adversarial court case rather than as a conventional tribunal, with counsel for the relatives of the deceased and the army respectively contesting the evidence (although the tribunal, as stated earlier, did not inform the relatives' counsel that more than 40 soldiers made more than one statement concerning the Bloody Sunday events, and that these statements contained significant inconsistencies and omissions). The aim of the tribunal became, in effect, one of apportioning blame either on the victims or the soldiers, with the ex-soldier Lord Widgery deciding which evidence was admissible (he refused to accept over 700 eyewitness statements made to the Northern Ireland Civil Rights Association on the grounds that these had been submitted late 'in order to cause him maximum embarrassment'!) and reliable. The fact that the ex-soldier presiding over the Widgery tribunal persistently preferred the evidence of soldiers to civilians did not increase Nationalists' confidence in the unbiased nature of the findings of the tribunal. As Walsh points out, there is no evidence to show that Widgery was deliberately favouring soldiers - but the appearance of bias is fatal to the acceptability of a tribunal's findings, and he shows that there is plenty of evidence of apparent bias in the Widgery proceedings.

The role of the Treasury Solicitor in the tribunal also raises serious questions about the impartiality of the proceedings and the reliability of the tribunal's findings. To utilise the services of a team of civil servants 'whose primary function is to give legal advice and assistance to government departments, including the Ministry of Defence' in an attempt to ascertain the truth about the actions of the British army on Bloody Sunday was, at best, ill-advised, as 'At the very least the independent observer might suspect a conflict of interest' (p.69). The fact that the Treasury Solicitor, at the suggestion of the Lord Chancellor, briefed counsel for the army throughout the tribunal only further heightens the appearance of bias on the part of the Widgery tribunal. Walsh goes further, stating that 'it smacks of the British legal and political establishments engaging in a conspiracy to pervert the course of justice in order to protect the political and legal establishments from having to accept responsibility for the events of Bloody Sunday' (p.70). Walsh provides many other arguments for suggesting that the Widgery proceedings were inherently flawed, arguments that are too numerous to summarise here. The general picture that emerges, however, is that of a tribunal that consistently favoured the army's version of events and that was geared towards a finding that would be inimical to the victims and their relatives.

In Walsh's account the tribunal's reading of the evidence frequently strikes the reader as perverse. An illustrative example is the case of Gerald Donaghy, one of the men who was shot in Glenfada Park and who died en route to hospital. While Donaghy's body was lying in the back seat of a car at the army medical post on Craigavon Bridge, a search by an RUC sergeant revealed that there was a nail bomb in one of Donaghy's front trouser pockets; a further search at the bridge found three more nail bombs on his person, one in his other front trouser pocket and two in his jacket pockets. Unfortunately for the security forces' claim that Donaghy was clearly a nail bomber, the 'proof' lying in the fact that four nail bombs had been found on his body, Donaghy had earlier been treated by a civilian doctor and an army doctor, neither of whom had noticed any nail bombs. The civilian doctor had actually searched Donaghy's pockets for evidence of identification, and the army doctor had examined the body twice, opening the front of the trousers in the process. It is baffling that these two doctors failed to notice nail bombs in Donaghy's trousers - unless, of course, there were no bombs in his trousers, and these were planted on his body afterwards. Nevertheless, the tribunal still announced that it was satisfied that the bombs had been in Donaghy's pockets all the time. How it could have had no reasonable doubt in this case is mystifying to a fair-minded reader of Walsh's evidence.

Walsh not only concludes that the Widgery tribunal fails to convince one as an impartial investigation into the events of Bloody Sunday, but he makes a strong case that its unduly favourable verdict on the British army's actions is simply the most striking instance of a constant feature of the legal system in the North since Partition: of the legal system serving the interests of the political and military establishment. Just as the Troubles have produced a sad crop of murder and mayhem, they have also been the occasion for a systematic failure on the part of the legal system to defend the rights of civilians against violations by the security forces. Walsh argues that 'a brief survey of security policy and the law since Bloody Sunday will reveal that the broad strategy which prevailed up to and including Bloody Sunday has continued in one form or another up to the present. Critically the one constant throughout this period has been the benign (sic) role of the law in facilitating this strategy even when, as was often the case, it involved the gross denial of fundamental rights and freedoms, including the right of life, at the hands of the security forces' (pp 216-17). Walsh supports his thesis with an overview of such policies as detention without trial, police and army stop and search powers, exclusion orders, Diplock courts, 'conveyor-belt justice' involving the use of torture and mistreatment of suspects and the use of 'supergrasses' to secure convictions, the 'shoot-to-kill' policy and security force collusion with Loyalist paramilitaries. While the security forces' record is not a viable one in Walsh's account, the courts' record is also shameful. In Walsh's view, a view which he supports with a lengthy and detailed examination of numerous controversial policies and incidents involving the security forces, the courts appear as merely a supportive arm of the State: 'As a generalisation it must be said that they do not appear to have been any more active in curbing the excesses of the security forces since Bloody Sunday than they were before it. The pattern has been very similar, with the courts adopting an exceptionally passive and supine stance when called upon to uphold the fundamental rights of the individual and due process values against the immediate interests of the security forces' (p.249).

Walsh's criticism of the legal system's failure to promote confidence in the rule of law is all the more devastating because it is written, in the main, in unemotive language. Although he tells the reader in his preface that his secondary school years were spent in Nationalist Belfast in the early years of the Troubles and that he witnessed at first-hand 'oppressive security policies and practices...[which] would not be remedied by either the government or the legislature', this is not a propagandist diatribe but a measured exposition of the extent to which human rights and confidence in the rule of law have been undermined by the judicial system during the Troubles. Exposing the flaws of the Widgery tribunal is an important part of the book, but its criticism of the judiciary runs much more widely than the Widgery case. Walsh's book makes a devastating critique of the way in which fundamental human rights have been sacrificed to meet the exigencies of the security forces, but it ends on a relatively optimistic note. Walsh believes that Nationalist confidence in the rule of law can be established in the current political climate. The wide-ranging reforms of the RUC outlined in the Patten Commission are praised as an important step in this process, but he does not lose sight of the importance of establishing the truth about the events of Bloody Sunday. As he eloquently puts it, 'Resolution of the Bloody Sunday issue will not be sufficient in itself to convince nationalists that they will secure justice and equality of treatment and respect in Northern Ireland. Equally the prospect of a political settlement will remain very slim for as long as the injustices of Bloody Sunday are allowed to fester' (p.304). It is difficult for the reader to disagree with this assessment.

The author wishes to convey his thanks, and to state that in his opinion, Dr. Brian Griffin has accurately and fairly summarised the material and arguments at the heart of the book, with assessments and conclusions that are entirely reasonable.

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