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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 © Dermot P. J. Walsh 2000 Softcover reprint of the hardcover 1st edition 2000 978-0-333-72287-9 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 0LP. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted his right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. 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 pat- tern 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 pub- lished 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 gov- ernment 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.

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