November 16, 1998Impunity Northern Ireland Accountability and Access to Justice
1. British Irish Rights Watch is an independent non-governmental organisation that monitors the human rights dimension of the conflict and the peace process in Northern Ireland. Our services are available to anyone whose human rights have been affected by the conflict, regardless of religious, political or community affiliations, and we take no position on the eventual constitutional outcome of the peace process.
2. We have been researching the events of Bloody Sunday since 1992. Throughout that period we have acted as independent advisers to the victims of Bloody Sunday and to their legal representatives. Although not a party to the new Inquiry, we hope that our detailed knowledge of its subject matter, our relationship with the victims, and our expertise in the human rights aspects of the situation in Northern Ireland will persuade the Bloody Sunday Inquiry to take our views into consideration.
Matters of Principle
3. We are sure that the Bloody Sunday Inquiry is well aware that it was brought into being because the Widgery Inquiry not only failed in its task but compounded the problem. Although the new Inquiry is not charged with an examination of what went wrong in Widgery, it is self-evident that the new Inquiry must avoid replicating its errors. The new Inquiry must operate as transparently as it can, and must not only be fair but must be seen to be fair by all concerned.
4. Against such a background, it seems to us that there should be a presumption against anonymity and immunity unless a compelling case can be made in their favour. Indeed, in his address at the formal opening of the Inquiry, Lord Saville appeared to adopt this approach, saying:
“We have considered whether to recommend to the Attorney-General at the outset that there should be an immunity from prosecution for all who give evidence to this Inquiry. The reason for doing this would be to encourage people to come forward and to speak frankly with no inhibitions. We have decided, however, not to make such a blanket recommendation at this time, but instead to look again at the question in the course of carrying out our investigations, when it may be possible to see more clearly whether the grant of immunity in any given case, or group of cases, is necessary for the purpose of carrying out the object of the Inquiry.
Some who may have material evidence to give to the Inquiry may have concerns about their personal security. Where we are satisfied that there are proper grounds for such concern, we shall make appropriate arrangements for their safety…
The statute under which we are acting allows us to exclude the public or any portion of the public from any part of the proceedings, if we consider that it would be in the public interest for us to do so, but we shall need very strong grounds indeed to take that course, and in the event that we did, we would publish our reasons for doing so. We also intend to put all relevant material in the public domain as the Inquiry proceeds, unless again we are persuaded (for compelling reasons that we would publish) that it would be in the public interest to take a different course. It follows that those who wish to bring matters to the attention of the Tribunal must realise that we intend to make public anything of relevance that they tell us, including the source of such material, unless there are compelling public interest reasons not to do so.”
4. In its Rulings and Observations on matters raised at the preliminary hearing, the Tribunal said:
“… we will be willing to grant an appropriate degree of anonymity in cases where in our view it is necessary in order to achieve our fundamental objective of finding the truth about Bloody Sunday. We will also be prepared to grant anonymity in cases where we are satisfied that those who seek it have genuine and reasonable fears as to the potential consequences of disclosure of their personal details, provided that the fundamental objective to which we have referred is not prejudiced. As to the degree of anonymity that is appropriate, our current view is that restricting the disclosure of names and addresses ought to be sufficient in most, if not all, cases. We would regard the use of a screen as a wholly exceptional measure.
The obligation nevertheless remains firmly on those who seek anonymity of any kind to justify their claim.”
Its remarks in relation to immunity were less forthright, and we will visit this issue later on in this submission.
5. Taking our lead from the remarks quoted above, we consider that all applications for anonymity and immunity should be examined individually and blanket applications should be rejected. In this respect, we suggest that the Inquiry need not have regard to decisions made in other forums, such as criminal trials and inquests. In those cases, members of the security forces have sought to withhold identification details and to be screened from view essentially in order to protect their operational integrity. In Northern Ireland RUC officers have very rarely been granted anonymity, despite the fact that they are resident in Northern Ireland and operate in public view. Soldiers have been granted anonymity rather more often (although by no means on every occasion) on the grounds that their ability to operate under cover may be compromised or that they may be personally targeted while on duty at checkpoints and on patrol. Such considerations do not apply to witnesses who were members of the security forces at the time of Bloody Sunday. Few if any of them are likely to be on active service today. Furthermore, the security situation is very different from that which pertained at the time of the Widgery Inquiry or in Northern Ireland prior to the paramilitary ceasefires, a matter which we canvas in greater depth below.
6. Taking account of the subject matter of the Inquiry, we are of the view that regard should be had to the part allegedly played by the applicant in deciding whether to grant any application. Although the Inquiry is not a trial and is inquisitorial in nature, it has been established to inquire into “a definite matter of urgent public importance”. It is of the utmost importance to establish whether the widely-held perception that members of the British army killed and wounded unarmed civilians on Bloody Sunday, because, as the Prime Minister put it when he announced the setting up of the Inquiry,
“… where the state's own authorities are concerned, we must be as sure as we can of the truth, precisely because we pride ourselves on our democracy and respect for the law, and on the professionalism and dedication of our security forces.”
7. We understand that the most senior officers (or former officers) involved, very properly, have never sought to withhold their identities from public scrutiny. This is as it should be. They were the officers responsible for the army’s actions on Bloody Sunday, and should be publicly accountable for their actions. However, other senior officers have not been so public spirited. For example, those commanding the companies of 1 Para that were centrally involved in the events of Bloody Sunday, and those commanding other regiments whose role will come under close scrutiny by the new Inquiry, have not been named. In our view, these persons should be publicly identified because it is not in the public interest for senior officers endowed with such weighty responsibility to remain anonymous.
8. So far as other ranks are concerned, different considerations may apply. However, when a soldier, whatever his rank, has been responsible for causing the death of an unarmed civilian, he ought not to be able to escape public accountability for his actions. If such a soldier (or former soldier) can wear the cloak of anonymity and can shelter behind a screen, even 27 years after the event, then any accountability can at best be only partial and at worst may be frustrated altogether. This is yet more forcefully the case where any grant of immunity is under consideration. It must be remembered that every soldier in a democratic society bears arms by licence from and on behalf of the public whom he serves. He is still subject to the rule of law and is still answerable for his individual acts. Thus, whether by virtue of high office or by virtue of his alleged role in the events, no soldier or former soldier should be able to claim anonymity or immunity unless he can advance compelling individual reasons for doing so.
9. Conversely, regard should be had to the reasons for the application. If an applicant can show that his personal safety is genuinely at risk, or that there is a significant possibility that it may be so, then obviously regard should be had to that fact, subject to our remarks below about the security situation. However, if an applicant is seeking anonymity simply to avoid publicly accepting responsibility for his actions, then his application should be rejected. Particular care should be had in relation to applications for immunity, which we also discuss below.
10. Finally, we believe that regard should be had to the passage of time. When the truth about events as serious as those of Bloody Sunday has been obscured for over a quarter of a century, there is a compelling public interest in establishing what really happened and who was responsible so that such a tragedy is never repeated and so that whatever level of justice that can be delivered after such a period of time can be accomplished. At such a remove of years, there are many obvious difficulties inherent in establishing the facts, including the deaths of some witnesses, the fading of memories, the accumulation of myths around the events, the loss of documents, and the urge among some parties to continue to hide the truth. In such circumstances, anonymity and immunity may add to those problems, in the ways we describe below. On the other hand, the public interest in establishing the truth increasingly outweighs individual claims for anonymity and immunity as time goes by. This is often reflected in the attitudes of those concerned. For example, civil servants’ natural propensity to protect the reputation of politicians while in office tends to diminish once they are out of office. Similarly, individual soldiers who feel that what happened was wrong or incompetent are sometimes more willing to express those views when they are no longer serving in the army.
11. In our view, where the Inquiry is persuaded that an application for anonymity should be granted, the minimum degree of anonymity compatible with the risk to the applicant’s safety should be adopted. As the Inquiry itself has said, in the majority of cases the withholding of names and addresses should usually be the most that is required, with screening being wholly exceptional. Indeed, we would go further and suggest that information that would allow personal contact with the witness, such as addresses and telephone numbers, are all that need be withheld in the majority of cases where there is a genuine risk.
12. The Inquiry may not realise that over the years the names of many of those involved in Bloody Sunday have become public knowledge. For example, it is widely known, at least in Derry, that the officer commanding Support Company was Major Ted Loden, who is still being referred to by the number 236. Our observers have attended trials and inquests in Northern Ireland where members of the security forces have been referred to by letters of the alphabet even though their names are known. Such a practice adds to fears of cover-ups and to the sense of injustice suffered by victims and their relatives. It also fails to inspire public confidence.
13. In our opinion, widespread use of letters or numbers is problematic. If many applications for anonymity are granted, a major task of redaction will arise among the volumes of documentation generated by the Inquiry. Any redaction of documents is contrary to the principle of transparency, although we accept that there are occasions when it may be unavoidable. When it has to be done on a broad scale, there is obviously scope for mistakes, which those who are not party to the original documents will not be in a position to discover or recognise. Widespread use of such devices also makes analysis of large amounts of information difficult. It is much easier to recognise a name than a letter or number, especially if it arises in an unexpected context. For example, it is easier to distinguish between the names Saville and Somers than it is between N and M, or 11 and 111. It is also easier to identify roles or functions with names; for instance the name Philip Ridd is already clearly identified as that of the Solicitor to the Inquiry, whereas it would be harder to remember whether he was known as 436 or 634. Furthermore, when it comes to giving testimony, anonymous witnesses may find it easier to lie than those whose names are known, because their sense of personal responsibility is diminished. Also, other witnesses may not be able to contradict the testimony of an anonymous witness if they cannot identify him.
14. Whist we do not advance this point in order to oppose any genuine application for anonymity by a soldier or former soldier, we think that in balancing applications for anonymity with the public interest it should be remembered that the victims of Bloody Sunday have no choice in the matter. The names of those who died and were injured have been in the public domain for many years.
15. In its Rulings and Observations on matters raised at the preliminary hearing, the Tribunal had this to say on the question of immunity:
“The second matter which the Tribunal raised during the course of the preliminary hearing was the question whether the Tribunal should recommend to the Attorney General that he should provide an assurance that nothing said to the Tribunal by any person, either before or at the oral hearings, could or would be used in subsequent criminal proceedings against that person.
The object of doing this is to encourage people to come forward to assist the Inquiry in its search for the truth, without fear that what they say may afterwards be used against them. Without such an assurance, of course, any witness has the right to exercise the privilege against self-incrimination. However, the Tribunal is presently of the view that were such an assurance given, it would not be possible for witnesses to refuse to answer questions on the basis of the privilege against self-incrimination, for the simple reason that no question of incrimination could arise. Furthermore, in such circumstances, were the witness to continue to refuse to answer, it would on the face of it be proper for the Tribunal to draw inferences from that refusal. The Tribunal would also draw attention to the provisions of the European Convention on Human Rights, expected shortly to be brought into force in this country, which contains provisions which might themselves prevent or restrict the use in subsequent criminal proceedings of statements made to the Inquiry…
We are bound to say that our present view is that we will be gravely hampered in seeking to find the truth without the assurance to which we have referred, while little if anything will be gained in the absence of such an assurance.”
16. With the greatest respect, we believe this preliminary approach to be ill-conceived in a number of respects. It is an unpalatable fact of life that those who have been responsible for serious wrong-doing have a vested interest in trading confession for immunity. However, the line between immunity and impunity is a fine one. The Inquiry may be forced to conclude in a particular case that it has no choice but to recommend immunity in return for testimony, but in our opinion it should be loath to do so. The reason we say this is that recommending immunity on the basis of testimony given to the Inquiry may preclude the possibility of a successful prosecution on other grounds. For example, an incriminating admission may be required to complete the prosecution’s case or to reach the criminal standard of proof. The grant of immunity may amount to a de facto grant of impunity. The Inquiry has considerable powers at its disposal to subpoena witnesses, compel their attendance, and require evidence on oath. It would be a mistake, we think, to start out from a position of considering immunity, especially when, as we understand it, no actual application for immunity has yet been received by the Inquiry.
17. We are not convinced that the granting of immunity removes the privilege against self-incrimination. As a matter of international human rights law, the privilege against self-incrimination is guaranteed by Article 14 (2) (g) of the International Covenant on Civil and Political Rights, to which the United Kingdom subscribes. Derogation from that right is only allowed “in time of public emergency which threatens the life of the nation” (Article 4), a situation which clearly does not pertain here. Any attempt to restrict that right would, in our opinion, be open to challenge by way of judicial review and before the European Court of Human Rights. It would render the Inquiry quite ineffective if, having granted immunity on the basis that it would cancel out the privilege, that premise was found to be wrong.
18. As the Inquiry has pointed out, a refusal to answer questions on the part of any witness will entitle the Inquiry to draw inferences from that refusal. If a soldier refuses to answer questions, invoking the privilege against self-incrimination, it will not necessarily hinder the Inquiry from establishing the truth of what happened. The events of Bloody Sunday took place in public, in full view of hundreds of eyewitnesses and, in many cases, under media scrutiny. A refusal to answer a question may suggest culpability on the part of a soldier, but it is unlikely to be the determining factor in establishing whether his actions were in fact culpable. For this very reason, we doubt whether the offer of immunity from the consequences of their own testimony will encourage soldiers to come forward, as the Inquiry appears to envisage.
19. As with the question of anonymity, there is no equivalence between soldiers and victims. The victims of Bloody Sunday were falsely accused (as was acknowledged by then Prime Minister John Major) of acts of violence against the army which amounted to serious crimes such as attempted murder. They have always asserted their innocence and that of their deceased relatives, and none of the survivors is claiming immunity, to the best of our knowledge. Nor have any soldiers, so far. Were they to do so, it would strongly suggest that, unlike the victims, their consciences are not clear and they fear prosecution. In such circumstances, we believe the Inquiry should think long and hard before recommending immunity.
The Security Situation
20. In deciding whether to grant applications for anonymity, the Inquiry must take account of the true extent of any threat faced by any individual applicant. In our considered opinion, the degree of threat faced by the majority of witnesses is minimal. We would point out that the names of the most senior officers who took part in Bloody Sunday have been known throughout. Channel 4 News was able to trace Derek Wilford, who agreed to be interviewed. The names of many other participants have also been known, often for many years, yet we understand that with the exception of a letter bomb and a threatening letter sent to Major General Ford, who is not claiming anonymity apart from the withholding of contact details, no specific threats or actual attacks have been made against any of those seeking anonymity. Had anyone been interested in tracking down any of these soldiers and threatening or attacking them as retribution for Bloody Sunday, it would surely have happened long ago, when the conflict was at its height. As it is, virtually all paramilitaries are now observing a ceasefire, and those few dissidents who remain and avowedly aiming their limited resources at attempting to bring down the Good Friday Agreement, rather than avenging Bloody Sunday.
21. The role of the victims of Bloody Sunday must be acknowledged. Their call has consistently been for justice rather than revenge. In an epilogue to the book Eyewitness Bloody Sunday, the Bloody Sunday Justice Campaign said (p.267):
“Vengeance and retribution are not part of the remit of this Campaign.”
Those sentiments are well known throughout the nationalist community in Northern Ireland. Republicans of all persuasions, including those dissidents who currently remain active, would respect the victims’ views. That is particularly the case now that the new Inquiry has been established. It is patently not in the victims’ interests that any witness should be deterred from coming forward through threats or attacks.
22. The victims of Bloody Sunday have already been falsely vilified as nail- and petrol-bombers and gunmen. In seeking anonymity, applicants can be perceived as regarding the victims or those who support them as being dangerous and posing a threat to witnesses’ lives. Nothing could be further from the truth. If anonymity is granted on the basis of a risk that is so minimal as to be virtually non-existent, victims may well perceive themselves as being further stigmatised.
23. If the situation is assessed objectively, we do not believe that any of those who have applied for anonymity is at any greater risk of violence than any of the victims, and that none of them is at any real risk at all. If any applicant can show that he has received specific, recent threats relating to Bloody Sunday from a source capable of carrying out those threats, then it may be appropriate to consider granting him anonymity. Otherwise, the Inquiry should be reluctant to grant anonymity on the basis of alleged risk to anyone’s personal security.
24. The same considerations apply to any request to hold hearings in London on the grounds of the personal security of witnesses. The security forces in Northern Ireland have proved themselves able to protect all manner of people, including members of the royal family. While some witnesses may feel uncomfortable about having to appear in Derry, we do not consider that there is any real threat from local people or dissident paramilitaries. The Inquiry will need to balance the convenience of some of the witnesses against the inconvenience and cost of holding sessions in London. If military witnesses are allowed to give their evidence in London, many victims and members of the public in Derry will be prohibited from attending what may well be the most important sessions of the whole Inquiry.
25. In our view, the public interest in obtaining the full truth about Bloody Sunday militates against anonymity except in compelling personal circumstances. However, if it will give witnesses who express concern about their personal safety some reassurance, we do not think that withholding their contact details (addresses and telephone numbers) will frustrate the interests of justice.
British Irish Rights Watch
16th November 1998
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