FROM MADDEN & FINUCANE IN RESPONSE TO
THE BLOODY SUNDAY INQUIRY’S PRESS NOTICE AND RULING DATED 18th DECEMBER 1998, EXPRESSING CONCERN OVER THE ROLE OF THE LAWYERS FOR THE FAMILIES OF MOST OF THE DEAD AND WOUNDED
As the solicitors acting on behalf of most of the Bloody Sunday dead and injured, we are appalled at the Press Notice and Ruling issued by this Tribunal in relation to our Counsel’s Submission to Report No. 1 by Counsel to this Tribunal. This Report was an attempt at an analysis of some of the evidence given to the Widgery Tribunal.
We are now submitting our Counsel’s Response to the criticism of Lord Saville. In that Response our Counsel have emphasised that this Tribunal is not sitting by way of an appeal from the findings of Lord Widgery. It was set up because it was believed, on very good grounds, that the Widgery Tribunal and it’s findings were seriously flawed. Lord Saville said,
“…our real task, which is not to enquire into what happened at the Widgery
Inquiry, but what happened on Bloody Sunday . Having said this however,
the fact remains that we shall be looking into the same events as those Lord
Widgery was asked to consider. We shall be looking at all relevant material
that was available at the time, whether or not it was considered or mentioned at
the Widgery Inquiry as well as any material that has subsequently come to light
or which the present Inquiry may itself reveal”.
It is difficult to understand why this Tribunal’s first major operation was to analyse some of the evidence presented to that Tribunal and draw conclusions as to what that evidence might or might not prove, preliminary or otherwise. No one can tell whether all of the Widgery evidence will in fact be presented to this Tribunal or whether it will be varied, withdrawn or discredited by additional evidence not presented to Widgery. Yet this Tribunal states:
“The analysis has been carried out to lay the ground for testing whether
this material is flawed”.
This is no part of the function of this Tribunal unless, quite improperly, it is going to base its findings or some of them on the Widgery evidence.
The principal purpose for which the Widgery evidence can be used is for the purpose of testing the veracity of the evidence upon which this Tribunal should base its findings. We would have thought that this was elementary.
Any conclusions upon this evidence must be, by definition, hypothetical. It is the judgement that this Tribunal places upon the evidence assembled by it, which is crucial and not someone’s analysis about what the Widgery evidence might or might not have established had all, or any of it, been true. The exercise, whether carried out by Counsel or not, (and this Tribunal cannot distance itself entirely from its own advisors), turns the entire process on its head but more seriously it sends out the wrong signal to the people in this jurisdiction who, given the sorry record of Lord Widgery and other English Judges involved in Irish cases, do not have the same confidence in an operation of this sort that others may have.
The question is as to why is it necessary to draw any conclusions from this evidence, at any stage, unless it is to be the basis of either a vindication or a condemnation of Lord Widgery, neither of which is within this Tribunal’s terms of reference. If it could be demonstrated that wrong though Lord Widgery’s conclusions may have been, they were properly arrived at given the material before him, this could go some way towards vindicating Lord Widgery and mitigating any damage that might otherwise be done to the British legal system. We were sure that this Tribunal would immediately accept that this is not part of its function. We cannot therefore conceive how this exercise could possibly assist a Tribunal directing itself to its primary duty namely to examine the entire mass of evidence de novo unencumbered by any conclusions that Lord Widgery made or might reasonably have been made upon the material before it.
Whatever the merits of the respective views and we believe that the cogency of our views is self evident, there is, at the very least, room for a second view. We are therefore aghast at the vitriolic and vituperative tone and the defamatory content of the Press Notice and Ruling. The Press Notice:
“…records the Tribunal’s disappointment at their (the lawyers) apparent
failure to accept the inquisitorial nature of the Inquiry and to support the
Inquiry’s efforts to seek the truth with fairness, thoroughness and
Counsel for the families were invited to submit a “proper response”.
The lawyers actions were not “consistent with the aim of seeking truth and justice”.
These documents impute not only incompetence to the families’ lawyers, but a lack of professional integrity. The legal profession in this jurisdiction enjoys a reputation for impartiality, competence and integrity which is not exceeded in any part of these Islands. The lawyers in respect of whom these scurrilous remarks are made enjoy the highest standing in their profession.
All of this imports the well known arrogance of many English Judges who assume their impartiality is to be taken for granted and that those who dare to differ from them are at best fools and at worst lacking in integrity. Given the history of the English judiciary referred to above, one would have expected more diffidence asking Northern Irish people to defer to them unquestioningly. The unfortunate image projected by this Tribunal is that of a group of outsiders coming to our country to lecture, in a most insulting and patronising way, the legal profession, as to what their obligations should be.
We do not at present accuse this Tribunal of conscious bias but it is difficult not to discern unconscious bias in the contemptuous way that the courteous and reasoned Submissions of reputable and skilled lawyers have been treated. We trust that this Tribunal will now take a more detached look at our Counsel’s original Submission, which, as can be seen from their response to Lord Saville’s criticism, they do not resile from and that this Tribunal will afford all concerned the courtesy of an apology and withdrawal of the offensive material which has been published world-wide, so that the work of this Tribunal can proceed without any further unnecessary and harmful distractions.
We also trust that this Tribunal will give equal prominence to this Press Statement and our Counsel’s Response as it did to their own, by placing them both on the Inquiry’s Web Site.
Dated this 22nd day of December 1998
Madden & Finucane,
88 Castle Street,
Belfast BT1 1HE.