The Bloody Sunday Tribunal of Inquiry - A Report by Professor Dermot Walsh for the Bloody Sunday Trust
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Altogether, the soldiers fired a total of 108 bullets. They claimed that they fired at gunmen and bombers. No guns were recovered from any of the victims and the only bombs recovered were four nail bombs which were allegedly found on the body of Gerald Donaghy in disputed circumstances. No photographic evidence was produced showing a gunman or bomber despite the fact that there many photographers operating in the area, including at least two army photographers. There was some civilian evidence to the effect that the occasional gunman was spotted. Some civilians also reported seeing and hearing gunfire which did not come from the Army. However, no civilian or journalist reported seeing anyone throw a bomb at the Army. Forensic tests on all of the deceased (with the exception of Gerald Donaghy, on which see later) proved negative for handling bombs. They also proved negative for the handling of weapons for 5 of the deceased, and were inconclusive with respect to the rest. There was a huge body of civilian and journalist evidence that soldiers fired at unarmed civilians in circumstances where there was no real threat to the lives of the soldiers.
On the 31 January the government responded to the public outcry which followed these shootings by announcing the setting up of a Tribunal of Inquiry under the sole chair of the Lord Chief Justice, Lord Widgery. The terms of reference of the Inquiry were to inquire into:
"..a definite matter of urgent public importance, namely the events on Sunday 30 January which led to loss of life in connection with the procession in Londonderry on that day."The Tribunal interpreted these terms of reference to mean that its purpose was:
"..to reconstruct, with as much detail as was necessary, the events which led up to the shooting of a number of people in the streets of Londonderry on the afternoon of Sunday 30 January."The limits of the Inquiry in space were the streets in which the disturbances and the shooting took place. The limits in time were the period beginning with the moment when the march first became involved in violence and ending with the deaths of the deceased and the conclusion of the affair. This was later clarified to include the plans that were made to deal with the march and the orders that were given to the soldiers before the march. The Tribunal specifically excluded moral judgements from its remit, holding that these were a matter for others acting on the basis of the facts found by the Tribunal.
The Tribunal conducted 17 sessions between 21 February and 14 March 1972 in which it heard 117 witnesses including: priests; "other people from Londonderry"; press and television reporters, photographers, cameramen and sound recordists; soldiers; police officers; and doctors, forensic experts and pathologists. Three further sessions were held from 16 to 20 March to hear closing speeches by counsel on behalf of the relatives of the deceased, the Army and the Tribunal. Further evidence considered by the Tribunal included: over two hundred statements and a large number of photographs. Significantly, the Tribunal did not visit the scene of any of the shootings, nor did it commission any engineers' reports of the locations of any of the shootings, nor did it take evidence from victims who were still in hospital.
The Tribunal completed its Report on 10 April 1972, just ten weeks after the events in question. The material part of the Report runs to only 36 pages. The Report itself was published on 18 April 1972. Although the transcript of the public sessions of the Tribunal have been available for public inspection a very substantial body of material, which was considered by the Tribunal, was not made available for public inspection. However, in the Summer of 1995 the Director of British-Irish Rights Watch, while examining the few records on Bloody Sunday which were open to public inspection in the Public Records Office in London, came across a confidential memo of a meeting on 1 February 1972 between the prime minister, the Lord Chancellor (Lord Hailsham) and Lord Widgery himself. The purpose of the meeting was to discuss the conduct of the Tribunal of Inquiry. Prompted by this revelation the solicitors for the relatives of the deceased sought access to 13 categories of documents relating to the Tribunal of Inquiry which were closed to public inspection for periods of 50 - 75 years. After considerable presssure, and only after the documents had been referred to the Home Office, were the solicitors given access to 12 of the 13 categories in the Summer of 1996. The official reason given for withholding the 13th category was that it contained confidential documents relating to the injured and the Home Office was reluctant to release these as the parties were still alive.
The 12 categories that were released included copies of the statements made to the Military Police on the night of 30/31 January 1972 by the soldiers who fired, witness statements made by soldiers and some policemen to the Treasury Solicitor for the purposes of the Tribunal proceedings (most of these were made in late February to early March 1972), a schedule of the evidence obtained by the Tribunal and drafts of the Tribunal's Report and memos of advice from the Tribunal Secretary to Lord Widgery.
The purpose of this paper is to examine the Tribunal's proceedings
and Report in the light of this new evidence that has become available
and, in particular, to consider whether the Tribunal has fully
and adequately discharged the obligations imposed upon it by its
terms of reference. It is necessary at the outset, therefore,
to clarify the status and role of a Tribunal of Inquiry that has
been appointed under the Tribunals of Inquiry (Evidence) Act 1921.
A Tribunal established under the 1921 Act must sit in public.
However, it does have the power to exclude the public or a section
of the public where it is of the opinion that it is in the public
interest expedient to do so for reasons connected with the subject
matter of the inquiry or the nature of the evidence to be given.
It also has the power to authorise the legal representation of
any person appearing before it. By the same token it can refuse
Under our adversarial system of justice when the High Court is hearing a case between two opposing parties, it does not play an active role in adducing evidence to determine the factual truth of a matter in dispute between the parties. Its primary role is to make a final determination on the basis of the evidence presented to it by the opposing parties. In discharging this role it relies on the parties to present all the relevant evidence and to subject the evidence of their opponents to searching scrutiny. The High Court itself will not pursue this task. Its input is largely confined to ensuring that the parties respect the rules of procedure in adducing the evidence and in scrutinising each other's evidence. At the end of the day the primary function of the High Court is to decide in favour of one side or the other in accordance with the rules of the game. It is not concerned first and foremost with establishing the truth. It may be, of course, that the adversarial procedure and the attendant rules applied by the Court are best suited to producing a final determination which accords with the truth in any case. That, however, is not necessarily the same thing as saying that the High Court is actively engaged in a search for the truth.
The Tribunal of Inquiry by contrast is set up specifically to
find the truth. It is expected to take a positive and primary
role in searching out the truth as best it can. Certainly, it
will seek the assistance of any interested party who has evidence
to give or who has an interest in challenging the evidence offered
by another party. It must be emphasised, however, that it is the
Tribunal, and not the parties, which decides what witnesses will
be called to give evidence. Indeed, strictly speaking there are
no parties, no plaintiff and defendant, no prosecutor and accused,
only an inquiry after the truth. It is the Tribunal which directs
that inquiry. All the witnesses are the Tribunals's witnesses,
not the witnesses of the parties who wish them to be called. Whether
any individual witness will be called is a matter for the Tribunal.
Moreover, the Tribunal can be expected to act on its own initiative
to seek out witnesses who may be able to assist in the quest for
the truth. Ultimately, the task facing the Tribunal is to establish
the truth, not to make a determination in favour of one party
engaged in an adversarial contest with another.
The six cardinal principles are:
Salmon considered that observance of these six principles was
of the highest importance in safeguarding witnesses and interested
parties to the Tribunal proceedings. He also considered that
their effective observance requires less haste in the conduct
of the Tribunal proceedings. While he recognised the urgency of
establishing what happened as speedily as possible, he specifically
recommended that where allegations were made against witnesses
they should be given adequate time to prepare their case. The
delay which would ensue was a "small price to pay in order
to avoid injustice."
The adoption of Salmon's principles would clearly promote fair treatment for individuals who would be the subject of serious allegations during an Inquiry. They would also convey the appearance of adversarial proceedings, at least where witnesses were seen to be called by an individual and examined by counsel for that individual. This appearance would be strengthened by witnesses being cross-examined by counsel representing other individuals. Nevertheless, the recommendations do not, and were never meant to, fundamentally alter the inquisitorial nature of the proceedings. Despite the appearances, all the witnesses remain as witnesses of the Tribunal and the Tribunal retains its primary responsibility for directing the proceedings and seeking out the truth. Salmon's recommendations were merely designed to provide a measure of fair play for those individuals who were at risk of being the subject of serious allegations during the proceedings.
For the most part, the government accepted the bulk of Salmon's
recommendations on these matters. Although, they were never framed
in the form of a statutory code of procedure, Salmons's recommendations
have been largely followed in subsequent Inquiries. Before departing
from them in any given instance, the inquiry concerned would normally
offer a detailed explanation.
The substantive analysis of the Tribunal's performance will be presented under the headings of "Truth", "Bias" and Accountability". However, before proceeding to this substantive analysis it would be worth drawing attention to a few procedural aspects of the Tribunal's performance which, it is submitted, impeded its capacity to discharge fully the three tasks set out above.
Nature of the Tribunal's Task
The Tribunal was appointed to investigate the most serious allegations that had ever been made in peace time against the British Army since it was established on the bassi of the Army Act 1881. It was alleged that soldiers had shot dead 13 and wounded 15 unarmed civilians in the context of street rioting which had taken place in the aftermath of a "Civil Rights" march. Inevitably, such allegations rocked public confidence in the State to the core, not just in Britain and Ireland but in all other democratic countries throughout the world. It is difficult to conceive of more serious and disturbing allegations being made against a democratic State whose institutions of law and order are subject to the rule of law. The restoration of public confidence in the State, its institutions of law and order and its international respectability, depended on the truth being established by an investigation which was independent in both substance and appearance. In the event of the investigation finding that the deaths and injuries were unlawful or could have been avoided then those responsible would also have to be punished in accordance with their culpability and measures taken to ensure that similar events would not happen again.
The vital and weighty task of establishing the truth fell to the
Widgery Tribunal of Inquiry. For reasons that will be explained
later under the heading of "Bias", it embarked upon
the task with the severe handicap of appearing not to be totally
independent of the party whose actions were the primary subject
of investigation. However, it compounded the effects of that handicap
by choosing to complete its task with such haste that it could
not realistically have hoped to establish the full truth of what
happened, let alone manage to convince all interested parties
that it had done so.
In partial defence of the Widgery Tribunal it must be said that it was placed under considerable pressure to complete its task as soon as possible. In the Parliamentary debate on the motion to appoint the Tribunal, the point was made again and again that the Tribunal must not become a device to push the horrific events of Bloody Sunday into the background until public and international concern had died down. It was considered that the best means of avoiding this outcome was to have the matter investigated quickly. It is apparent that Widgery himself fell into this trap. In the introduction to his report he said that the value of the Inquiry would "largely depend on its being conducted and concluded expeditiously." There may be contexts in which this perspective is valid. Given the profound importance of the matters that Widgery had to investigate and their sheer complexity, it can only be described as misguided in this instance.
Significantly, Lord Salmon made some reflections on the element
of speed in an Inquiry appointed under the 1921 Act. He acknowledged
the importance of revealing the truth to the public as soon as
possible and, in particular, that there should be no dilatoriness
in starting an Inquiry and pushing it to its conclusion. Equally,
however, he was of the opinion that too much haste can result
in unfairness to the parties concerned, and he specifically denounced
the speed at which some post-war Tribunals had conducted their
Although each Inquiry is wholly unique, nevertheless some useful comparison might be made in this context with the Scarman Tribunal of Inquiry. It was appointed under the 1921 Act to inquire into "..the acts of violence and civil disturbance which occurred" in Belfast, Derry, Dungiven, Armagh, Coalisland, Dungannon, Newry and Crossmaglen during the summer of 1969 and which "resulted in loss of life, personal injury and damage to property." It submitted its report around the same time as the Widgery Report despite the fact that it had bene appointed almost two and a half years before the Widgery Tribunal. In other words the duration of the Scarman proceedings were more than ten times longer than the Widgery proceedings. Some of the difference might be accounted for by the fact that the former had more incidents to examine than the latter. However, this must be set against the fact that the gravity of the matters being investigated by the Widgery Tribunal were much more profound and therefore should have attracted much more careful deliberation. It must also be acknowledged that the long gestation period for the Scarman Report meant that it had been overtaken by events by the time it was published. Given the unprecedented nature of the events that the Widgery Tribunal was investigating, that was hardly likely to have been a problem for it. The overriding requirement for the Widgery Report was public confidence in its findings. That would not be bought by speed, but it could surely be lost through haste. Indeed, it is worth noting that a lack of public confidence in its findings was not something that dogged the Scarman Report.
In short, it is difficult to avoid the conclusion that as a result
of its undue haste in conducting its investigation into the most
serious allegations that have been made in peace-time against
agents of the State, the Widgery Tribunal severely compromised
its own capacity to achieve one of the most vital incidents of
its task, namely to inspire public confidence in the truth and
fullness of its findings.
At the very least, therefore, the length of the Widgery Report
gives the appearance that the Inquiry did not fully discharge
its task. If it appears that the Tribunal did not fully discharge
its task then that in itself will be sufficient to undermine public
confidence in the results of the Inquiry.
In the event the Tribunal granted representation to the Army and to the deceased. One legal team acted for the Army and one legal team acted for the deceased. This arrangement obviously made sense in the case of the Army given the fact that the individual soldiers on the day were acting as a unit under military orders. The justification is less obvious in the case of the deceased. They did not form part of a closely knit organisation and had not been acting in concert on the day. Indeed, most of them did not even know each other. They were all separate individuals. Given that the evidence of the soldiers was to the effect that they shot only at gunmen and bombers, it follows that their families were all entitled to their own separate legal representation. However, the question of separate representation did not become an issue during the proceedings. When the proceedings opened a single legal team appeared for 12 of the 13 deceased as they anticipated that the Tribunal would not permit separate representation. Their fears were confirmed at the outset by Lord Widgery who declared that he saw no need for the individual deceased to be represented separately. The effect of this, of course, was that a single legal team consisting of a senior counsel and a junior counsel would have to carry the burden of representing the interests of a large number of separate individuals. It is worth noting here that no separate representation was considered for the wounded. The clear expectation of the Tribunal was that the legal team for the deceased would cover the needs of the wounded, thereby more than doubling the burden on the two barristers in question.
A further, and perhaps more serious, twist resulted from Lord Widgery's wish that the views of the people of Derry who might be critical of the Army should also be represented, and that that representation should be provided by counsel for the relatives. The inevitable effect of this decision was that the single legal team representing the relatives of the deceased also had to represent the wounded and the nationalist citizenry of Derry. This was a huge burden to place on such slender resources and could only result in the representation of the individual deceased being stretched beyond breaking point.
An equally important consequence of Lord Widgery's approach, the significance of which cannot be over-estimated, was that it effectively turned the Inquiry into an adversarial contest between two opposing parties. What should have been an inquisitorial investigation conducted by the Tribunal itself, with contributions from affected parties, was shaping up to be an adversarial contest between unequal parties with the Tribunal making a contribution. The significance of this, as will be seen later, was greatest during the vital cross-examination of the soldiers. This task was left almost exclusively to counsel for the relatives of the deceased etc. In its Report the Tribunal placed great store on its perception of how well the soldiers performed under cross-examination. The reality, of course, was that the counsel for the relatives were in a very weak position when it came to conducting this cross-examination. Not only did they not have the time and resources to prepare fully for this mammoth task, but they did not have copies of the critical statements made by the soldiers to the Military Police on the night of Bloody Sunday. As will be seen later, access to this vital evidence would have had a profound effect on the conduct of the soldiers' cross-examination and, by extension, the whole drift of the Inquiry.
By contrast, counsel for the Tribunal did have access to this critical material and could have used it to devastating effect in the cross examination of the soldiers, which of course should have been the primary responsibility of counsel for the Tribunal in such an Inquiry. Incredibly, however, counsel for the Tribunal hardly featured at all in cross examination of the soldiers. This most critical aspect of the Inquiry was left to counsel for one of the "parties." That, of course, is what one would expect in an adversarial proceeding, but not what should happen in an inquisitorial Inquiry appointed under the 1921 Act.
It is apparent, therefore, that Lord Widgery's approach to representation at the Inquiry had the effect of steering the Inquiry away from an inquisitorial approach to an adversarial approach. Not only did this conflict with the terms of appointment of the Tribunal, but it also meant that the Tribunal's focus was less on establishing the truth of what happened and more on picking the winner of a legal contest between unequal opposing parties.
The significance of these preliminary observations becomes ever
more apparent as the substance of the Tribunal's work is analysed
in the light of the soldiers' statements made to the Military
Police on the night of Bloody Sunday and the other recently released
documentation. This analysis will be presented now under the headings
of "Truth", "Bias", and "Accountability".
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