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Friday, 24 March, 2000, 12:52 GMT
Challenges facing the Saville inquiry
Dr Dermot Walsh, chair of law and director of the centre for criminal justice at the University of Limerick, explains the unique challenges facing Lord Saville's inquiry.
The Saville report will have the same legal status as the 1972 Widgery report. But in effect it is likely to be a very different product.
The Widgery inquiry and the subsequent report were completed within 10 weeks and much valuable evidence was excluded from consideration.
The legal team acting for victims' families was severely under-resourced compared with their counterparts for the army. The legal team serving the tribunal consisted of lawyers who normally acted for British Government departments and the proceedings were conducted on an adversarial basis.
The Saville inquiry is not repeating these mistakes. Already it has spent two years painstakingly gathering and assessing evidence.
It is likely that it will spend at least another year testing this evidence in public hearings before putting together its report.
The inquiry has threatened to use its powers of subpoena to overcome any lack of cooperation and has taken a resolute - even if ultimately unsuccessful - stand against anonymity for soldiers and police officers
It has also made a recommendation to the director of public prosecutions that evidence given by a witness should not be used against him or her in a criminal prosecution.
The legal team serving the inquiry was hand-picked by Lord Saville and victims' families have been provided with suitable legal resources.
The formidable task facing the Saville inquiry is to satisfy the public that it has established the full truth about what happened on Bloody Sunday.
It is not a court and nobody is on trial. In essence it is a fact-finding exercise aimed at answering questions like:
Both the Widgery and Saville inquiries were set up to conform to the Tribunals of Inquiry (Evidence) Act 1921. Surprisingly, this act does not specify the standard of proof required in such fact-finding exercises.
Essentially, it is a matter for the tribunal to decide whether it will use the criminal standard of beyond reasonable doubt, the civil standard of a balance of probabilities or some other standard.
Of course, the tribunal may avoid making definitive findings on critical matters where the evidence is equivocal.
And in situations where the bulk of the evidence is pointing in one direction it may opt to express an opinion on what it considers is likely to have happened, without actually committing itself to a definite finding.
Who to blame
The tribunal is not sitting as a court to determine whether the soldiers, or anyone else, are guilty or not guilty of crimes.
But in practice it will be very difficult to ignore issues of culpability.
Some facts cannot sensibly be established without making at least implicit assumptions about moral or legal judgments. The critical issue of the circumstances in which each shot was fired is an example.
Inevitably the search for the relevant circumstances among the conflicting versions will be conducted against the background of when it is lawfully justified for a soldier to resort to the use of lethal force.
The result in some cases may be findings which effectively determine the legal culpability of individual soldiers.
An important and difficult challenge for the Saville inquiry, therefore, is to establish the facts in a full and meaningful manner without being seen to conduct a trial in which the verdict is guilty or not guilty.
This role of a tribunal of inquiry - rather than a court - can frustrate those who want decisions about who is to blame. Indeed, the inquiry's report may not be the last word on Bloody Sunday.
Its contents may result in civil or criminal proceedings in which some issues are discussed again in a very different setting.
The inquiry's mission is further complicated by the fact that, unlike Widgery, it is trying to establish the truth 28 years after the event.
Some important witnesses are no longer available, the memories of others have faded and some material evidence has been lost or destroyed.
On the other hand, a huge volume of new evidence has come to light over 28 years.
The inquiry has discovered much important new material and witnesses since it was established two years ago. This brings the logistical challenge of trying to sift through such a huge volume of material to piece together the truth.
Much of the evidence will have to be tested by examination and cross-examination in the tribunal's public hearings.
With highly skilled and well-resourced legal teams acting for the army and the victims' families, these hearings may be dominated by an adversarial contest in which each team seeks victory.
While this is not necessarily incompatible with a search for the truth, there is a danger that the truth will become submerged under the weight of argument and counter-argument based on the voluminous evidence.
A difficult challenge for the inquiry, therefore, will be to keep the focus on an inquisitorial search for the full truth, while at the same time giving lawyers the freedom of rigorous examination.
Dr Dermot Walsh is author of Bloody Sunday and the Rule of Law in Northern Ireland. His report formed part of the Irish Government's submission to the British Government for a new inquiry into Bloody Sunday.
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