Joint Committee on Justice, Equality, Defence and Women's Rights
Sub-Committee on the Barron Report

Dé Céadaoin, 18 Feabhra 2004 - Wednesday, 18 February 2004.

Public Hearing on the Barron Report

Deputy Costello: May I rephrase the question? Of course it is not some expectation that should be put on the families, but can the process of inquiring into those matters which are accessible be done by a better mechanism than a public inquiry? Mr. O'Neill can imagine the amount of time it would take to look at all of these cases, both in the North and in the Republic, where one would be seeking disclosure of information in criminal cases. One would be entitled to such information if one was arguing that agents of the state were responsible for collusion and participation in some of these offences. Obviously one does not expect Mr. O'Neill and the relatives to do it, but is a public inquiry the way to go about it?

Mr. O'Neill: It would appear to us that it is probably the only mechanism because there does not appear to be any other legal structure available. We are not in love with public inquires per se. They have flaws and we have seen how they can be abused. One is confined in that, through procedures of lack of monitoring and so forth, they can go down culs-de-sac. The way public inquiries have been elongated in this State has given them a bad name but it is an entirely distorted view of the efficacy of a public inquiry process, if it is probably managed.

In 1996 we started a process of doing what the Deputy suggested when the late Paddy Doyle, who lost his daughter and his two grandchildren in Parnell Street, brought an action in the High Court to get access to those files which would indicate the degree to which the RUC and the Northern Ireland authorities failed to co-operate with the Garda inquiries. He was denied access to the files. It was contested and issues of privilege were invoked. The High Court held against him and we appealed to the Supreme Court. The Supreme Court held that a case to the European Commission on Human Rights, as it then was, was not a justiciable action as it was understood under the discovery rules of the superior courts and, therefore, Mr. Doyle did not have a right per se to look for discovery to pursue his complaint to Europe.

The State has a far greater locus standi. If a state establishes a public inquiry, it mandates and equips its team with the necessary powers to go to the High Court in Northern Ireland and request access, not only in respect of the file relating to the case of Paddy Doyle but also to the files relating to all of the victims. Otherwise there will be a need, not for one request in the High Court from a public inquiry established here but for about 26 requests because there will have to be 26 individual applications to the High Court. I do not know how that will minimise costs.

Deputy Costello: It is difficult to see how the State can initiate such an action and what co-operation there would be by the authorities in Northern Ireland. That is part of the problem we are facing. How can the State do it?

On the other side of the coin, could Mr. O'Neill or somebody else initiate the action in Northern Ireland, given that the people who committed the offences were from Northern Ireland - or at least there is a strong case for so thinking - so that, therefore, one would not have to go extra-jurisdiction to discover the documents and would be seeking discovery within the jurisdiction?

Mr. O'Neill: In regard to what cause of action?

Deputy Costello: In regard to an offence-----

Mr. O'Neill: Citizens cannot investigate offences. That is for the police to do.

Deputy Costello: Let us take the Castleblayney bombing that Mr. O'Neill talked about earlier.

Mr. O'Neill: That is cross-jurisdiction because Castleblayney is in the Republic.

Deputy Costello: What about a wrongful killing or death action?

Mr. O'Neill: A wrongful death action may or may not be statute barred.

Deputy Costello: It is an option-----

Mr. O'Neill: Does the Deputy have a defendant in mind? If the defendant is the United Kingdom, the United Kingdom has a sovereign immunity defence.

Deputy Costello: That happened in the Paddy Doyle case, Mr. O'Neill said.

Mr. O'Neill: No, that happened in another case involving an individual who had an altercation with a British soldier on the Border. The Supreme Court held that the sovereign immunity defence was recognised by Irish law, and the European Court of Human Rights subsequently held that it did not infringe Article 2 of the European Convention on Human Rights.

Chairman: If the case was pursued in Northern Ireland it would not have sovereign immunity to-----

Mr. O'Neill: Cormac can deal with Northern Ireland.

Mr. Ó Dúlacháin: The point is relevant to pursue. The Deputy is asking whether we can progress the matter further by other actions. Invariably the answer is "yes, we can" through legal creativity, but it is in a hugely fragmented manner. It is riddled with uncertainty and involves legal skirmishes in many courts in many jurisdictions. By way of a very short example, the Omagh relatives, who have decided to embark on civil litigation, had first to face the prospect of raising £1 million.

The reality is that our experience of attempting to progress the matter by litigation has given rise to difficulties in the High Court and Supreme Court. We got thrown out of the European Court of Human Rights on the basis that there was a six-month procedural rule within which an application or complaint had to be made. The court could not tell us when the six months ran from although it said it ran from some time in the past. This would entail asking the families to encounter huge difficulties.

The issue is different. Is it so grave that it moves from personal to public responsibility to pursue it? We are simply saying that the matter is so grave that it is now a public responsibility to pursue this matter for the reasons given by Mr. Donlon. It was a bombing of these individuals but it was also a bombing of the State. It was the bombing if unspecified citizens who either walked past a few minutes before or missed it a few minutes later. If it is a public matter then it should be inquired into by the public.

Deputy Costello: What I found so interesting was that at this stage, 30 years down the road, the witnesses did some modules for Mr. Justice Barron and were able to delve into some new material, including trial and police files. The Finucane Centre was able to get those as well. They are original documents relating to the time, and that was done in the space of the last three or four years. Is that not correct? That was the submission of the witnesses and of the Finucane Centre. They have only been in existence for three or four years. Arising out of that, do the witnesses believe that there is a large scope for discovery of such original documents? They may not be security documents - MI5 and so on - but they may be police and trial documents for which, in the right circumstances, you may be able to issue a writ for discovery.

Mr. Ó Dúlacháin: An inquiry into collusion is a difficult investigation. Once you set up a team to investigate it, they have to figure out how they are going to tackle it. You will not get all the answers as to how it is done at this stage. Broad parameters cannot work. It can work if you understand that an investigation of collusion is not brought to an end by "wow" discovery. It is not about one document; it is not about one knockout point. It is about layers and layers of separate items of information being gathered. A lot of those are already there. It is not a question of investigating the background to every single incident. It is about identifying what is relevant out of an incident and getting that particular information verified or not.

The way we see it progressing is that Barron has engaged in general correspondence. It is capable with the information available of directing hundreds of specific questions which, if they are not replied to, bear on a finding on that specific issue. Individuals can bring evidence to a tribunal from their own actions. I do not think a tribunal is guaranteed that, as a tribunal, it will succeed in getting orders for discovery. You might find a huge legal battle on that one.

Deputy Costello: That is the problem we are facing. You have shown how it can be done on an individual basis. We want to see how it can be done on a collective basis - in other words, if we were to propose a tribunal of inquiry, what powers would it have to access a document? How would it get to discover those files? You can discover those files if you have a direct action in relation to a specific person who has been killed or whatever. Where an action is being taken by the agents of the State, you can seek discovery. How would a tribunal of inquiry have the collective power to get those files or are we talking about all sorts of mini-investigations in relation to all the individual cases that would have to precede a further decision on a tribunal of inquiry which could then act on the matters?

Mr. O'Neill: It is important you do not get the wrong end of the stick on this. The modalities of getting information from RUC-PSNI files, as demonstrated by the Pat Finucane Centre, have been through a direct engagement with individual RUC CID officers who go to meetings at the Pat Finucane Centre and who meet the relatives. Since this process started, we have had one meeting with the Commissioner of the Garda Síochána and his assistant. Up to then, the only interest the Garda had in the families was in monitoring the general meetings of Justice for the Forgotten in Parnell Square, as if we were some form of subversive organisation, adding huge insult to the families, but that is just by way of an aside.

Deputy Costello: And turning up once a year at the Pro-Cathedral.

Mr. O'Neill: The RUC-PSNI have taken their human rights obligations more seriously than the Garda Síochána but that is possibly a matter of education - political or cultural education, or whatever. They have met the Pat Finucane families, for want of a better term, and the families have engaged with senior RUC officers and information has been imparted. We cannot point to any court case we have taken on behalf of the Dublin-Monaghan families in Northern Ireland for access to records and we do not know what the result of that application would be. I know from my own experience in seeking access to police files in miscarriage of justice cases I have taken that it is possible, through a long process whereby the judge gets the file, reads it and decides what is relevant for me, my colleagues or my client to see, to get some, all or none of it. In the North of Ireland the process of discovery of sensitive information through the courts is even further complicated by public interest immunity certificates and by certificates served by the Ministry of Defence. This has bedevilled the Saville inquiry. Many of these arguments are culs-de-sacs because it goes back to the original argument that one cannot have an effective inquiry without access to, and co-operation from, all of the files available to the British.

Our argument is more subtle. It says that if a public inquiry is established here, even without necessarily getting all the court orders one needs in the North, in our view, co-operation will be forthcoming from CID officers, both retired and serving. The RUC is not a monolith, nor is the British state in Northern Ireland. A great number, if not the vast majority, of people in the RUC absolutely despise the activities of some of their colleagues in colluding with murderers and are prepared to shop them. All one has to do is set up a mechanism whereby they can do that, whether in a public setting, in a private setting or through an investigative process. This information is easily obtainable. All one has to do is set up the mechanism.

Mr. Ó Dúlacháin: I want to make one observation on that which is critical in understanding. When one sets up an investigation into collusion, the ground rules are very different to any other investigation one has established. One does not have to get the primary documents. If the Pat Finucane Centre walks in with a photocopy of a transcript of a judgment delivered, that is evidence on which the tribunal can work. It does not have to go back and get the original file. In a similar way, if they have facts and material on ballistics, they can bring it to the investigation. The investigation can request the originals but if it does not get them, that does not stop it dealing with the matter. It is very important that one does not effectively concede power of frustration to the party one is investigating. It is critical. If one does not grasp that point, then no state or international body can investigate collusion.

Senator J. Walsh: Returning to this module, I welcome the members of Justice for the Forgotten group. Like other members of the sub-committee, I compliment them on this morning's interesting submission which merits careful consideration on our part.

There was much talk yesterday about controlling and monitoring inquiries. In that regard, there were submissions on the one hand, that the terms should be very broad while on the other hand, there was a contrary statement that they should be focused and clear. Am I correct in stating that what Justice for the Forgotten is submitting to us is that there are two main issues still to be inquired into, that is, the cause of the collapse of the Garda investigation and collusion in the bombing by the UK security forces that these would be specifically termed within any scope that we would give to anybody?

Mr. O'Neill: That is correct.

Senator J. Walsh: This was discussed yesterday. What kind of time limit would be fair to put on that? We all know that, due probably to poor chairmanship or whatever else, the matters have gone all over the place in a number of the public tribunals to date?

Chairman: The Senator should not say "poor chairmanship".

Senator J. Walsh: Sorry, I was only expressing an opinion.

Chairman: Do not use that expression. Can you withdraw that, please? There are only a number of specific chairmen of the tribunals. You will have to withdraw that.

Senator J. Walsh: Okay, I will withdraw that.

Chairman: Thank you.

Senator J. Walsh: They have gone on, which, perhaps as a consequence, has made the task we have much more difficult. How can one control them and what time limit would they see put on it?

Mr. Ó Dúlacháin: The time scale has to be realistic to the task at hand, but with a matter such as collusion one has to ask an inquiry to report back within a period of time, whether 18 months or two years, and to establish how far or to what extent it has been able to uncover or establish. If you leave it indefinite, the potential for it to grow arms like an octopus and keep on growing is indefinite. In essence, you get to a stage where you do have to take a photograph of what you have got and make a judgment on it. All we are asking is that a reasonable endeavour, in terms of the public process and in terms of the enthusiasm, energy and funding devoted to it, be made for a reasonable period of time. The difficulty with some of the tribunals has been that the terms of reference are akin to inviting an inquiry into sin.

Senator J. Walsh: What you are saying is that the terms would be very narrow and that those are the two issues you would identify.

Mr. Ó Dúlacháin: Yes.

Senator J. Walsh: What about the point made yesterday, I think by Mr. McGonigal, that of the current tribunals, those which focused on the investigative mode in a very thorough way seemed to have progressed much more satisfactorily than those which had not? How do you see that happening in this instance given that a lot of the investigation is taking place outside this jurisdiction?

Mr. O'Neill: We believe that is a very, very important point. We do not see a public inquiry into this atrocity as in any way mirroring what has happened in Derry where there have been 450 odd days of hearings. We believe the actual days of public hearings which people despair at in public inquiries would be quite limited, provided that the first, investigative, module is carried out in a thorough way. We have suggested that there is a pool of expertise on this island. We have suggested that obviously there are people in the Police Service of Northern Ireland who are willing to give information.

We are looking at the political developments at the moment and the historical rapprochement between the two traditions on this island which is taking place. We are looking at the peace process and we are looking at addressing and finally dealing with a matter which it is in the interests of the Police Service of Northern Ireland as much as in the interests of the Garda and the people of Ireland to address. With a well equipped investigative team, with the backing of the warrants and authorities of a public inquiry and with the endorsement of the Government, a great deal of investigative work could be done before you get near public hearings.

Senator J. Walsh: On the case taken by Mr. Paddy Doyle, referred to in paragraph J on page 10 of your submission, what files were actually specified in the requests for discovery of documents? What was in the Department's affidavit? Was there anything in it? On what date did that take place? Were any of the files sought part of the files now stated to be missing? Was there any mention at the time by the Department in its affidavit of the fact that files may have been missing? Would that have been pertinent to the affidavit?

Mr. O'Neill: I will explain the process we asked to take place. I was the solicitor involved in that action, and I gave evidence for some time before Ms Justice Laffoy, the judge hearing that issue in the High Court. We asked generically for the Garda investigation files. In evidence, I pinpointed for the court those files which were relevant to the issue of co-operation from the RUC because we were making the case that the RUC had failed to launch a murder inquiry into the bombings and had failed to pursue those we believed had cases to meet in terms of being suspects with the diligence that the atrocity merited. There was an issue in terms of the United Kingdom's response to the atrocity, the gravamen of Mr. Doyle's action to the European Court. At no stage, either by way of affidavit, submission or cross-examination was it put to me or to my colleagues, or counsel for Mr. Doyle, that the files, the subject matter of our application, were in any sense attenuated, missing, mislaid, misplaced or diminished by any administrative action or failing.

Senator J. Walsh: You gave us a lot of information on the Rock Bar trial. Was there an intervention, a nolle prosequi, in that case? For those of us who studied Latin a long time ago, could you elaborate on the precise effect of this?

Mr. O'Neill: Cormac and I might both respond to that briefly. It was in connection with the attack on Donnelly's Bar, Silver Bridge, which involved the murder of a number of people, including Mr. Blacknell's father. It is a matter that is still being investigated by the Pat Finucane Centre but there appears to have been a decision taken to enter a nolle prosequiand a question which has to be resolved is to what degree the then Attorney General may have had some role in that, or what was the basis of his assessment in directing a nolle prosequi?

Senator J. Walsh: The role the Attorney General might have played in Prime Minister Thatcher's Government is being investigated.

Mr. O'Neill: I understand the Pat Finucane Centre is still pursuing inquiries into that.

Senator J. Walsh: There is no information available on that. I will put the Chairman on notice that he may or may not want you to answer this question but I am asking it for a reason. I am not asking you to name names. When the investigation wound down in August 1974, it was then pursued, I think, under Chief Superintendent Tony McMahon. Do you have any information on any associations Chief Superintendent McMahon would have had with senior politicians at that time?

Mr. O'Neill: No.

Deputy Hoctor: I too welcome the families, the members of Justice for the Forgotten and the legal team.

Though time has not been on our side, I think there could have been much more we could have discussed today. I am interested in the international law aspect. I refer, in particular, to page 14 of your submission where you mention the definition of collusion and the fact that the United Nations appointed a special rapporteur in 1982 to investigate responsibility in relation to states. You state about ten lines from the end that a state can also be answerable for deaths by persons acting in direct or indirect compliance with the state. Will you talk us through this and explain it a little more, including the status of the rapporteur. It is a very useful reference which perhaps you will point out to us is very valuable.

Mr. O'Neill: There are a number of issues arising from this. In particular, there are issues arising from what happended in Latin America in the 1970s where you had death squads and the official police forces in many states, including Chile, Argentina and Brazil, in particular, and one or two other states such as Colombia, involved in death squad activities in the elimination of members of trade unions and opposition groups and democratically elected politicians. The issue was how this was going to be investigated. The United Nations felt it was necessary to set up an independent international process of arbitration and investigation to assess where a state could be held responsible.

The issue is important but, in a sense, it is almost beside the point in terms of collusion because collusion is a broader concept. The issues involved were state killings or state involvement with killings or what was happening in South America and what we believe was happening in Northern Ireland where you had a military reconnaissance force and other groups that had been set up under the advice of Mr. Kitson. They degenerated into situations where members of the undercover British Army recruited disaffected loyalists and republicans, or bribed, cajoled or blackmailed them into becoming agents, travelling with unbadged and un-uniformed members of the British forces in unmarked cars throughout Belfast in the early 1970s, and being used as point men, both loyalists and republicans, to point out people for assassination. That is documented. Whether that process of counter-insurgency operated in Dublin and Monaghan has yet to be established, but we know that six members of the gang from Glenanne who are deeply suspected of involvement in the Dublin and Monaghan bombings were at the time serving members of the RUC and the UDR.

It is relevant to look at that but it goes to the issue, as Mr. Mansfield pointed out, of involvement. That is a higher level of culpability on the state. In a sense, it is a different level of culpability. We are talking about collusion, but the definition of collusion is sourced ultimately in the attempts made by the international community to apply international law standards and basic human rights standards to the unlawful activities of states, their armies and those hired by them.

Deputy Hoctor: With regard to page 15 of the submission, does Mr. Ó Dúlacháin fully accept the definition of collusion as prescribed by the UN interpretation?

Mr. Ó Dúlacháin: That is our interpretation of the mandate of the special rapporteur and the documents surrounding that post. It is an attempt to reach a definition. Special rapporteurs are appointed at various stages by the United Nations for various purposes. They are not particularly well resourced. The mandate of the special rapporteur is limited in time and cannot historically go back beyond a certain period of time. What has arisen out of this process has been the establishment of the International Criminal Court and, similarly, the International Criminal Court is limited and cannot go back beyond 2000.

Chairman: Thank you very much. I thank all of the legal representatives of Justice for the Forgotten, and Bernie McNally, the chairperson, and Margaret Urwin, the secretary, and the other members of Justice for the Forgotten representing the families of the victims and the survivors.

Sitting suspended at 1.05 p.m. and resumed at 2.05 p.m.