Bloody Sunday Inquiry progress praised

Inquiry: Four years old, hundreds of witnesses heard

Professor Dermot Walsh, Chair of Law and Director of the Centre for Criminal Justice at the University of Limerick, explains how the four-year-old Bloody Sunday Inquiry is changing the nature of public inquiries for the better.

It was clear from the outset that the Saville Tribunal was going to be a very different operation from the Widgery Tribunal which conducted the first inquiry into Bloody Sunday in 1972.

While Lord Justice Saville is its chair, its membership includes two judges from outside of the United Kingdom and it is served by independent solicitors and counsel.

The Inquiry's painstaking search for the truth has unearthed a substantial new body of evidence about Bloody Sunday. We expect more to come before the public hearings are completed.

Since beginning work in 1998, it has has engaged in an exhaustive search for witnesses and evidence of what really happened.

It has threatened explicitly to use its powers of subpoena to compel the production of evidence and the attendance of witnesses.

It has requested the production of journalistic sources and material from confidential security files and military disciplinary records.

It has secured immunity for prosecution for witnesses in respect of the evidence they give to the Inquiry and has shown a deep commitment to conducting its proceedings in public, not least through use of information technology.

Time pressures

The Inquiry has not been deterred by pressures of time and expense. Its report is not expected for at least another year and costs so far have exceeded £50m.

They might well rise above £100million before the Inquiry is completed.

The lengths to which the Inquiry has been prepared to go in order to conduct an exhaustive investigation is likely to set the parameters and style for future tribunals of inquiry for a long time to come.

The Inquiry's painstaking search for the truth has unearthed a substantial new body of evidence about Bloody Sunday. We expect more to come before the public hearings are completed.

Nevertheless, its path has not always been a smooth one and its progress has been hindered from time to time by challenges from disparate interests.

Some of these challenges have been played out in both the High Court and Court of Appeal.

The first significant challenge came from the lawyers representing the families of the deceased who were unhappy with the Inquiry's provisional decision to restrict their legal representation to one leading and two junior counsel.

The Inquiry's reasoning was that granting the families (and the soldiers etc) large legal teams would result in its proceedings becoming an adversarial contest rather than the inquisitorial investigation which they were supposed to be.

Ultimately, the Inquiry was persuaded that, in the light of the Widgery experience, the level of legal representation afforded to the victims and their families would have a critical bearing on the extent to which justice was being seen to be done.

Witness anonymity

The next major issue was the question of the anonymity of witnesses, a vital matter for the Inquiry as one of its essential functions is to be as open and transparent as possible.

Lord Saville: "Exhaustive search for what happened"

If the soldiers who had fired the shots (or indeed any civilian gunmen who were alleged to have been operating at the time) were permitted to give their evidence anonymously, it is highly unlikely that everyone, particularly the families of the deceased, would feel that the Inquiry had fulfilled its mandate.

The Inquiry felt that the only concession that it could make to the soldiers' security fears was a ban on the publication of their present addresses and personal details.

But in the wake of two High Court challenges by the soldiers and an unsuccessful appeal by the Inquiry to the Court of Appeal, the Inquiry has had to retreat from this position.

The Courts said that the Inquiry had given too much weight to openness and transparency and insufficient weight to the fundamental rights of the soldiers.

It said that these soldiers had reasonable grounds to fear for their safety if their names were disclosed.

As a result of these rulings the Inquiry has been prepared to grant anonymity to any soldier or police officer who applies for it, unless their name is already in the public domain.

Hearing the evidence

Closely related to the question of anonymity is the issue of where the soldiers will give their evidence - and the inquiry ruled that the soldiers must give their evidence in Derry.

Facts and fictions: Families want the truth

To hold the hearings elsewhere would defeat the whole purpose of the Inquiry for those most affected by Bloody Sunday. For them, it was vitally important to see and hear the soldiers and their political masters being questioned about their actions on that day.

But once again, however, the Inquiry was overruled both by the High Court and the Court of Appeal on grounds of personal safety.

The inquiry's initial decision was to remain sitting in Derry and hear the soldier's evidence via a videolink to another location. But it has since decided, after submissions, to move the hearings to a location in Britain to take the evidence.

Major contribution

Given the nature of the events which the Inquiry is investigating and the diligence with which it is pursuing the investigation, it is hardly surprising that the Inquiry is making a substantial contribution to the law and practice of tribunals of inquiry in the United Kingdom.

On a personal level, the duration and intensity of the Inquiry have taken a toll on its members and support team.

The High Court and Court of Appeal rulings on anonymity and the venue for the soldiers' evidence have already been noted. These help clarify how respect for the fundamental rights of those under investigation should inform the procedure of an Inquiry.

The Inquiry's own rulings on other matters are also of intrinsic interest. These include matters such as rights of representation, access to confidential security information and journalistic sources, as well as the basic nature and methodology of a tribunal of inquiry.

The lengths to which the Inquiry has been prepared to go in order to conduct an exhaustive investigation is likely to set the parameters and style for future tribunals of inquiry for a long time to come.

On a personal level, the duration and intensity of the Inquiry have taken a toll on its members and support team.

One of the three judges, Sir Edward Somers, resigned for personal reasons in July 2000 and was replaced by Mr Justice Toohey.

There have also been a few changes in personnel, including the Secretary and the Solicitor to the Inquiry, largely due to promotions. Further changes cannot be ruled out given that there is still some distance to go, including the most vital stage of all, the soldiers' evidence and that of their political masters.

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Professor Walsh is author of Bloody Sunday and the Rule of Law in Northern Ireland. (London: Macmillan, 2000)