Response By Counsel Engaged By Madden & Finucane – To The Further Rulings And Observations By Lord Saville, Sir Edward Somers, Mr. William L. Hoyt – Given On 18th December 1998 In Respect Of Report No.1 By Counsel To This Tribunal

  1. We are very considerably surprised by the tone and content of this Tribunal’s Rulings and Observations of the above date (“the present Ruling”). Since it appears on their face that this Tribunal (or those advising it) has entirely misunderstood our position in relation to Report No. 1 and more generally, we find it necessary to respond in some detail.
  1. This Tribunal is well aware that one of the major causes of unhappiness for the families of those killed and wounded on Bloody Sunday has been the manner in which the Widgery Tribunal was conducted. In summary, only a small proportion of those then known to have relevant evidence to give were invited by that Tribunal to give it, the evidence which was received was not properly tested nor evaluated, many important questions were left unaddressed and those which were addressed were dealt with perfunctorily and inadequately. It is no exaggeration to say that the conduct and conclusions of the Widgery Inquiry served only to compound the relatives’ feelings of hurt and injustice at the events of Bloody Sunday and to engender disquiet which has grown rather than abated over the ensuing twenty-five years.
  1. Against that background, we submit that this Tribunal should be most sensitive in its approach to the Widgery Tribunal. To say, as the present Ruling does at paragraph 4, that the “Report contains the most complete and detailed analysis to date of an important part of (what was said to the Widgery Tribunal)” is, with respect, to entirely miss the point that the evidence which Widgery chose to receive was inadequate, highly selective and incomplete as subsequent investigations have clearly shown. It is hoped that this Tribunal will readily accept, on the basis of the research it has already undertaken, that that is so.
  1. Accordingly, for this Tribunal’s Counsel to attempt to form “preliminary conclusions” whether tentative or not, is not only a pointless exercise but it is also insensitive in indicating a disposition on the part of this Tribunal to use the discredited Widgery Tribunal and Report as some sort of starting point for the work of this Tribunal. Such an approach is not calculated to inspire confidence either in the relatives or the wider public.
  1. We repeat our earlier Submission that it is not the role of Counsel to this or any other Tribunal to form conclusions whether preliminary or otherwise. It is noted that our Submission on that point has not been dealt with in this Tribunal’s present Ruling.
  1. The present Ruling states that:

The analysis has been carried out to lay the ground for testing whether this material is flawed.

In our respectful Submission such an approach is fundamentally misconceived.

This Tribunal is not sitting by way of an appeal from the findings of Lord Widgery. Indeed this Tribunal was set up because it was believed, on very good grounds, that the Widgery Tribunal was seriously flawed.

As this Tribunal itself stated in the Opening Statement:

“…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 on which the present Inquiry may itself reveal”.

The terms of reference of this Tribunal are to enquire into the events of that day. What therefore is the point in laying the ground “for testing whether this material is flawed” or not?

In itself the material has no inherent value other than as a means of checking the evidence before this Tribunal for consistency or for possible lines of enquiry. It cannot and ought not to be relied upon for any other purpose.

In these circumstances it is difficult to know what useful purpose is served byan exercise which purports to examine evidence which is not complete, which has not been tested before this Tribunal and which is subject to manifest frailties.

We submit that this Tribunal would not be failing in its duty to act with thoroughness if it failed to carry out this exercise. On the contrary, and with the greatest respect, we submit that the clear danger with an exercise of this sort is that it might be taken to give the evidence before the Widgery Tribunal and the Widgery Report a status not only to which it is not entitled but which would be wholly inconsistent with the stated purpose of the Inquiry.

  1. At paragraph 8 of its present Ruling this Tribunal says that our third objection is misconceived. With respect, it is that comment in the present Ruling, which is misconceived. At paragraph 3 of our Submission of 15 December we make clear that our crucial objection is to the use by the present Tribunal of Widgery material alone for the purpose of forming preliminary conclusions in this Tribunal. We have explained above why we consider such an approach pointless, insensitive and inappropriate. The fact that such conclusions have been drawn and publicly promulgated by Counsel to this Tribunal and not the Tribunal itself does not lessen the unfortunate public perception which such action has created.
  1. This Tribunal’s Ruling at paragraph 2 suggests that we have failed to “properly understand the object of the Report” and alleges a “continuing” failure to accept that this is an inquisitorial inquiry which has the duty of seeking the truth with fairness, thoroughness and complete impartiality. Dealing with the second limb first, we understand very well and entirely accept and welcome the duty of this Tribunal as thus expressed by it. However we do not accept that the public dissemination of Report No. 1 containing “conclusions” is a helpful start to the real public work of this Tribunal. We have explained above why we consider the exercise itself is premature and pointless. The material before Widgery and the use which was made of it can both only be evaluated at the proper time against the whole body of available material including the NICRA statements, Professor Walsh’s Report and all the statements presently being gathered when they are available.
  1. At paragraph 15 of the present Ruling this Tribunal responds with some scorn to our information that an outside stairwell of the south eastern corner of Glenfada Park South is absent from this Tribunal’s plan. We had explained that this stairwell is a significant physical feature as being a place where individuals took shelter during the firing. It is noted with disappointment that this Tribunal does not intend to investigate this omission. We will therefore endeavour to do so ourselves.
  1. At paragraph 17 of the present Ruling this Tribunal implies that the absence of factual criticisms by us other than that concerning the stairwell is in some way significant . It signifies only that we are not willing to embark upon an analysis of a report which is so selectively based. When all relevant material is available, the availability (and utility) of Report No. 1 will be better able to be judged.
  1. Finally we take serious issue with the allegation at paragraph 21 of the present Ruling that the families are “not being well served” by Submissions of the kind made by us on 15 December. We respectfully differ from that opinion. Having reviewed our Submission of 15 December in the light this Tribunal’s present Ruling we find nothing for which we resile and we repeat those Submissions here.
  1. We also venture respectfully to suggest that future public controversy might more easily be avoided if Counsel to this Tribunal would in future consult informally with counsel and solicitors for the relatives before releasing without warning into the public domain material likely to create misunderstanding and dissatisfaction such as Report No. 1.

 

 

Dated this 22nd day of December 1998

 

Reg Weir QC., Seamus Treacy BL.,

Bar Library, Bar Library,

Belfast. Belfast