Bloody Sunday and the Rule of Law in Northern Ireland Also by Dermot P

Bloody Sunday and the Rule of Law in Northern Ireland Also by Dermot P. J. Walsh

THE CONFISCATION OF CRIMINAL ASSETS: Law and Procedure (editor with J. Paul McCutcheon) THE IRISH POLICE: A Legal and Constitutional Perspective THE USE AND ABUSE OF EMERGENCY LEGISLATION IN NORTHERN IRELAND Bloody Sunday and the Rule of Law in Northern Ireland

Dermot P. J. Walsh Barrister at Law Chair of Law Director, Centre for Criminal Justice University of Limerick Ireland First published in Great Britain 2000 by MACMILLAN PRESS LTD Houndmills, Basingstoke, Hampshire RG21 6XS and London Companies and representatives throughout the world A catalogue record for this book is available from the British Library. ISBN 978-0-333-72288-6 ISBN 978-0-230-51446-1 (eBook) DOI 10.1057/9780230514461

First published in the United States of America 2000 by ST. MARTIN’S PRESS, INC., Scholarly and Reference Division, 175 Fifth Avenue, New York, N.Y. 10010

Library of Congress Cataloging-in-Publication Data Walsh, Dermot, 1957– Bloody Sunday and the rule of law in Northern Ireland / Dermot Walsh. p. cm. Includes bibliographical references (p. ) and index.

1. Londonderry (Northern Ireland)—History. 2. Demonstrations—Northern Ireland—Londonderry—History—20th century. 3. Political violence—Northern Ireland—Londonderry—History—20th century. 4. Massacres—Northern Ireland—Londonderry—History—20th century. 5. Northern Ireland—History– –1969–1994. 6. Law—Northern Ireland. I. Title

DA995.L75 W35 2000 941.6'210824—dc21 99–053147

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10987654321 09 08 07 06 05 04 03 02 01 00 To my mother and father Edward and Sarah Walsh Contents

Map of the Bogside viii

Preface ix

1 Bloody Sunday 1

2 The Road to Bloody Sunday 15 3 The Widgery Inquiry 54 4 A Flawed Report 85 5 The Soldiers’ Statements 113 6 Lethal Force and the Law 157 7 Law and Security Policy since Bloody Sunday 215 8 The Path to Justice 283

Notes and References 314

Table of Legislation and Cases 336 Index 339

vii

Map of the Bogside Preface

The conflict in Northern Ireland has produced a whole catalogue of incidents and events which, many years later, still evoke powerful emotions both locally and nationally. Few, however, are so deeply ingrained in the mass consciousness of a whole community as the events in Derry on 30 January 1972; generally known as Bloody Sunday. On that day British soldiers shot dead 13 and wounded 15 unarmed civilians in the context of a protest march against internment without trial in Northern Ireland. Of course Bloody Sunday was not an isolated incident. From one perspective it was simply the latest episode in a conflict which since August 1969 had produced many violent deaths at the hands of both the security forces and terrorists. These continued long after Bloody Sunday and include many more examples of the mass slaughter of innocent civilians, primarily at the hands of terrorists. Nevertheless Bloody Sunday stands out from all the rest. Bloody Sunday represents the classic example of a state resorting to the might of its armed forces, and the use of lethal force in particular, to crush public protest against the implementation of oppressive and discriminatory policies by that state. In Ireland, of course, memories of the atrocities committed by the forces of the crown at regular intervals over the past three or four centuries are never too far below the surface. In January 1972 these memories were very much alive and potent among the nationalist community in Northern Ireland as a result of their treatment at the hands of the government and the security forces in general since the province was established in 1921, and particularly since August 1969. Not surprisingly, therefore, nationalist reaction to the slaughter on Bloody Sunday was immediate, explosive and far- reaching. Violence broke out across Northern Ireland and in Dublin on a scale rarely witnessed before. Irish communities throughout the world staged public protests against the British government. Within the nationalist community in Northern Ireland the opinion that the state was irreformable began to spread. The Provisional IRA (more than any of the other nationalist paramilitary organisations) attracted recruits, resources and support, which have enabled it to continue an armed campaign against British sovereignty over the six counties of Northern Ireland up to the current ceasefire. That campaign, in turn, has involved many atrocities.

ix x Preface

Twenty-seven years later Bloody Sunday has a critical bearing on the success of the peace agreement in Northern Ireland. The failure of the law and justice system to punish those responsible and provide redress for those who had been injured and the families of the deceased dealt a shattering blow to nationalist confidence in the rule of law. Nowhere was this felt more acutely than among the relatives and the victims themselves, who had campaigned fruitlessly for justice for more than 25 years. For the nationalist community as a whole it confirmed an established pattern of security force excesses going unpunished; a pattern which has continued from Bloody Sunday right up to the current peace process. If the peace agreement is to succeed one of the vital pre- requisites is the restoration of nationalist confidence in the capacity of the law and justice system to prevent excesses by the security forces and to punish them when they do occur. Given the magnitude of the failure of the law and justice system in the case of Bloody Sunday it would make a huge contribution to the restoration of nationalist confidence if, even 27 years after the event, justice was finally seen to be done. As might be expected there is already a body of literature on Bloody Sunday, although its volume hardly matches the importance of the subject. Apart from the official report of the Widgery Tribunal into what happened on Bloody Sunday the first significant work to be published was Professor Samuel Dash’s report ‘Justice Denied: A Challenge to Lord Widgery’s Report on Bloody Sunday’, which was published by the International League for the Rights of Man in 1972. Based on the evidence presented to the tribunal, Dash offers a damning critique of the tribunal’s conclusions. It was followed just over a year later by Professor Bryan McMahon’s article ‘The Impaired Asset: A Legal Com- mentary on the Widgery Tribunal’, which was published in La Domaine Humain in 1974. Not only does McMahon subject Lord Widgery’s rea- soning on key issues to a powerful and damaging critique, but he also exposes fundamental flaws in Widgery’s interpretation and application of the law. Nine more years were to pass before Dr Raymond McClean published an account of his personal experiences of Bloody Sunday in his book The Road to Bloody Sunday. Dr McClean had attended to sev- eral of the dead and wounded on Bloody Sunday and had been present on behalf of Cardinal Conway at the postmortems on the deceased. Incredibly he was not called as a witness at the Widgery Tribunal even though he had very pertinent evidence to offer. A few months before the twenty-fifth anniversary of Bloody Sunday Don Mullan published Eyewitness Bloody Sunday: The Truth, which has now gone into its sec- ond edition. It contains an edited collection of statements dictated in 1972 by eyewitnesses to the events of Bloody Sunday. It also contains Preface xi a new and compelling theory about the location from which some of the fatal shots were fired on that day. My own report, The Bloody Sunday Tribunal of Inquiry: A Resounding Defeat for Truth, Justice and the Rule of Law, was launched at a press conference on the twenty- fifth anniversary of Bloody Sunday. Exactly one year later the Irish government published its own analysis under the title Bloody Sunday and the Report of the Widgery Tribunal: The Irish Government’s Assessment of the New Material. Now that the Saville Tribunal has been established to conduct a fresh inquiry into Bloody Sunday it can be expected that the literature on the subject will grow significantly over the next few years. The present book has grown out of the research I conducted for my report The Bloody Sunday Tribunal of Inquiry: A Resounding Defeat for Truth, Justice and the Rule of Law. That research consisted of a painstak- ing analysis of soldiers’ evidence to the Widgery Tribunal in the light of the original statements they had made to the military police on the night of Bloody Sunday. The nature and extent of the discrepancies between their original statements and their subsequent evidence, cou- pled with the fact that the soldiers were not cross-examined about the discrepancies when they gave their evidence to the tribunal, meant that the tribunal’s confidence in the reliability and veracity of the soldiers’ evidence was fundamentally misplaced. This in turn meant that the tribunal’s report and conclusions were fundamentally flawed. This book aims to develop this research more fully by examining in particular the role of the law and the justice system in failing to prevent Bloody Sunday from happening in the first place and in com- pounding the injustice by conferring a spurious legality on the shootings after the event. It reveals that from at least August 1969 the law was used as a tool of executive expediency in responding to the challenge posed by civil rights protests, sectarian violence and violence against the state. Not only did it function as a vehicle for oppressive security policies but it also proved spectacularly inept at correcting many of the worst excesses. Even the European Convention for the protection of Human Rights and Fundamental Freedoms proved a rela- tive disappointment in this regard. The net result was the creation of an environment in which members of the security forces could believe that they were not subject to the rule of law for actions taken in furtherance of the immediate security and political objectives of the government. Bloody Sunday unquestionably offers the most extreme example of the consequences. It cannot, however, be explained away as an isolated aberration. The subordination of the rule of law and justice to the immediate demands of the executive and security policies xii Preface which allowed Bloody Sunday to happen were well established by January 1972 and continued unabated right up until the current peace process began to take effect. The damage which has been done to public confidence in the rule of law, particularly among the nationalist community, has been profound. Restoration of this confidence is a vital prerequisite for the successful implementation of the peace agreement and establishment of a just and lasting peace in Northern Ireland. The book does not attempt to determine the full truth of what happened on Bloody Sunday. It focuses instead on the conduct of the Widgery Tribunal’s inquiry into Bloody Sunday and the contents of the tribunal’s report. This includes the results of primary research on the statements and evidence of those soldiers who fired the shots on Bloody Sunday. The critique of the Widgery Tribunal’s performance is set in the broader context of the security policies of the Stormont and British governments, the contents and operation of the emergency legislation, the practices of the security forces and relevant rulings of the Northern Irish courts, the British courts and the European Commission and Court of Human Rights from at least the 1960s up to the adoption of the Good Friday Peace Agreement in 1998. For me the book reflects one of the primary reasons why I was attracted to a career in law. It all began with my horror at witnessing the television coverage of the excessive and brutal force used by the police on the civil rights marchers in Derry in October 1968. Even though I was only ten years of age at the time the events sparked a very deep sense of commitment to challenge such injustice in what- ever way I could. That commitment was fuelled by the experiences of my secondary school years in Belfast (St Malachy’s College) from 1969 to 1976. My memories of those years are dominated by scenes of little terraced streets being patrolled by armed soldiers in full battle fatigues; the cries and protests of women and children as their houses were searched by the soldiers; the personal experience of being stopped and searched regularly by those same soldiers; the sight and eerie high- pitched scream of small field tanks and armoured troop carriers moving along the narrow residential streets, almost dwarfing the little houses which fronted onto the footpaths; the drone of army helicopters as they hovered stationary in the sky for hours on end; the sight of fortified army observation posts perched on top of residential flats; the threatening presence of heavily fortified army bases in residential areas, including one immediately adjacent to my school; the smell of CS gas and smouldering buildings and cars from the previous night’s rioting; the sound of gun shots and bomb explosions as I sat in the classroom; Preface xiii the vibrations of the classroom as huge bombs exploded in the vicinity of the school; the sense of loss and helplessness over the death of class- mates, blown up or shot by loyalists; the terrible sense of foreboding of loyalist and security force retaliation in the wake of fatal bombings and shootings by republicans; the sense of anarchy as the school was caught up in student protests against the use of internment without trial; and, ultimately, the almost communal sense of outrage and rebel- lion as the full horror of Bloody Sunday became apparent. As those years progressed I realised that the oppressive security policies and practices I was witnessing would not be remedied by either the government or the legislature. Indeed they were more likely to be the source of many of the excesses. Retaliatory violence, whether in the form of street rioting or armed resistance, only seemed to provoke further abuses from the security forces, supplemented by the actions of loyalist paramilitaries, leading inevitably to a vicious spiral of self- perpetuating violence. The law, however, seemed to offer a powerful alternative. Surely the oppressive actions of the executive, and the security forces in particular, could be challenged effectively by recourse to the law? Equipped with a sound knowledge of the law and a professional legal qualification I could at least make a practical and meaning- ful contribution to remedying the abuses and promoting human rights, equality and justice in Northern Ireland. It was with that ideal in mind that I commenced my career in law at The Queen’s University of Belfast in 1976. After graduation and under the auspices of the Cobden Trust Studentship I embarked upon research into the operation of the emergency legislation in Northern Ireland. This resulted in 1983 in the publication of my book The Use and Abuse of Emergency Legislation in Northern Ireland. Since then I have continued my research on the interaction between law and security policy in Northern Ireland with the aim of promoting what I consider to be one of the primary functions of the law, namely to protect the weak against victimisation and oppression at the hands of the powerful. This book is an impor- tant milestone in that work. As will become apparent from its contents, however, one of the lessons I have learned is that there are limits to the capacity of the law to deliver justice. Indeed in Northern Ireland over the past thirty years it might not be unfair to say that its capacity to deliver justice has been overshadowed by its equal capacity to function as a vehicle and a cover for injustice. When researching and writing this book I benefited from the cooper- ation of a number of individuals and bodies. Before listing them, however, I must pay tribute generally to the relatives and friends of those xiv Preface shot dead on Bloody Sunday and to their legal advisers and supporters, who have campaigned tirelessly over 27 years to secure justice. The sense of loss, grief and helplessness which the relatives of the victims undoubtedly suffered in the immediate aftermath of Bloody Sunday would have deterred most other persons from even making the attempt. Those lawyers and human rights activists who have stood with the relatives and campaigned energetically on their behalf deserve the thanks of all of us who believe in the sanctity of human rights and the need for a just and lasting peace in Northern Ireland. In particular, therefore, I am indebted to the relatives of those shot dead on Bloody Sunday, the Bloody Sunday Trust and their solicitors Madden and Finucane. If I had not been engaged by the Bloody Sunday Trust to conduct research on the statements and evidence of the soldiers who fired the shots on Bloody Sunday it is quite likely that this book would never have been written in its current form. Jane Winter, director of British Irish Rights Watch, and Patricia Coyle of Madden and Finucane deserve a special mention. It was largely due to Jane’s hard work and persistence that the original statements made by the soldiers were eventually released by the Home Office. Patricia personally transported these voluminous documents from Derry to my base in Limerick and was always available to respond to any query I might have about them. I am especially grateful to the University of Limerick for giving me the time, space and resources necessary to research and write the book. In particular I am indebted to Pattie Punch, humanities librarian in the University of Limerick, who worked her usual wonders in supplying me with Northern Irish and European case reports as and when I needed them. John Moroney, Faculty of Education in the University of Limerick, also deserves a special mention and thanks. His moral encouragement and support at critical times ensured that the project stayed on course until completion. I would also like to thank Alison Howson (and her predecessor Sunder Katwala), who has done a superbly professional job as commissioning editor, and Keith Povey for his meticulous editing. Finally, and most especially, I wish to thank my wife Alice and our children Orla and Niall. Their support and patience throughout my work on the book were treasures which could not be purchased. My only hope is that they, and all the others who have assisted me in the project, will see some merit in the final product. As always, of course, they bear no responsibility whatsoever for the views expressed or any shortcomings that may be found in the work. That responsibility is entirely mine.

Lisnagry, County Limerick DERMOT P. J. WALSH