TRANSCRIPTS OF OUR CONTRIBUTIONS TO THE JOINT OIREACHTAS SUB COMMITTEE
ON THE BARRON REPORT INTO THE DUBLIN & MONAGHAN BOMBINGS
Committee on Justice, Equality, Defence and Women's Rights
Dé Máirt, 27 Eanáir 2004 - Tuesday, 27 January 2004
Hearing on the Barron Report
The Sub-Committee met at 10 a.m.
Committee Members Present:
DEPUTY SEÁN ARDAGH IN THE CHAIR.
Chairman: I welcome the representatives of Justice for the Forgotten, Cormac Ó Dúlacháin, Micheál O'Connor, Mr. Nigel Wylde and Mr. Greg O'Neill. My apologies for the delay. There were some matters with which the sub-committee had to deal. It was unavoidable.
We are resuming hearings in the consideration by the sub-committee of the Barron report, the report of the independent commission of inquiry. This morning the sub-committee is starting module two of its proposed programme of work. In module one last Tuesday the sub-committee heard from the surviving victims and relatives of victims of the atrocity. Their contributions helped set in proper context the consideration by this committee of the report. The accounts given by all of the victims and family members highlighted the degree of terrible suffering encountered by them on the day of the bomb and in the 30 years since. On behalf of the sub-committee, I thank everyone who spoke to it last Tuesday. I also acknowledge the survivors and families who were not in a position to appear before the sub-committee last week.
I turn to the application
made last week by Ms Miriam Reilly, BL, counsel on behalf of the O'Neill
and O'Brien families and Berni Bergin. The sub-committee has carefully
considered the submissions made and noted both the objection of the said
group of families to its proposed scheme of hearings and the reasons for
same. The sub-committee considers that it is obliged to carry out all
of its terms of reference, not just the last term of reference. In so
doing, it is obliged to comply with the law and, in particular, the decision
of the Supreme Court in the Abbeylara case.
Mr. Cormac Ó Dúlacháin: Thank you, Chairman. With regard to this module, we have been asked to come before the committee to, effectively, discuss the extent to which the Barron report addresses its terms of reference. Last Friday, we submitted a paper to the committee entitled "The Barron Report: the Extent to which it Addresses the Terms of Reference". The purpose of that submission was, first, to stop and think about what is required of a committee when it is asked to consider a report, and to try and put the consideration of the report into context. I would like to go through that submission briefly in a few minutes. I am conscious that committee members have had an opportunity to consider it.
This morning, we submitted a further, supplemental memorandum, which attempts to draw together in 15 pages the significant points, factors and facts established by the Barron inquiry. It is not an easy task to summarise such an extensive report, but we believe that the supplemental memorandum may assist the committee in focusing on the issues that we raised in our first submission. If I might proceed with regard to the first submission, the first point we made concerned our expectation of what the Barron Report would achieve. In our opinion it establishes that there is substance to the allegations it was asked to examine, and in that regard it furnishes considerable detail. It is inherent in the terms of reference that it must, first, establish whether the allegations are of substance, and the report has achieved that end.
With regard to our expectation of what the Barron process - the first stage of this process - was about, I would like to refer to a number of short statements made by the Taoiseach in Dáil Éireann on 17 November 1999, when the establishment of this inquiry process was being debated. The Taoiseach indicated that the Government called for a public inquiry into Bloody Sunday after the publication of a very detailed assessment of new material on Bloody Sunday and the Widgery tribunal. In the Pat Finucane case, British Irish Rights Watch prepared a very detailed submission, but in the cases of the Dublin and Monaghan bombings, and Seamus Ludlow, no such detailed assessments have been made. The Taoiseach indicated that while from the outset, the families sought a public inquiry, the case put forward by the Government, based on all the legal advice and assessments in which it had engaged with the representatives concerned, was that until there was a comprehensive assessment, it would not be in the families' best interests to proceed with a public inquiry. While much was said about the Bloody Sunday inquiry, an enormous effort first had to be made by the previous Government before it became a reality - something that was acknowledged on several occasions. Finally, the Taoiseach expressed the hope that an eminent legal representative would be able to sift through the existing facts that have been collected by the Garda, Departments or groups such as Justice for the Forgotten to ascertain whether a substantive case can be made.
Therefore, effectively, at the outset of this process, our expectation of the Barron inquiry was simply this: would Mr. Justice Barron be able to gather sufficient facts to make a substantive case for a public inquiry, or after his assessment, would the end result be that he would say - or that his report would invariably lead to the conclusion - that there was no substantive case? In our opinion, he has made that substantive case.
The second question is, having made a substantive case, is that the end of the story? In that regard, we say the Barron report significantly fails to achieve the goal of the entire process. In that regard, we say the process was established, with the Barron Commission, this committee and the question of a further stage. The aim of the entire process was to find out the truth in relation to the bombings, the truth in relation to the Garda investigation, the truth in relation to State action and the truth in relation to collusion. We say that, in a substantive sense, that has not been achieved.
Further on, on page 2 of our submission, we ask ourselves what should guide this committee in assessing whether the Barron report has achieved the overall objectives. We say you have to think about how you approach that task. It requires a serious process of assessment, requires some identification of standards against which the report is to be measured, and then the testing of the report against those standards.
We say the standard that this committee should adopt should reflect the gravity of what the report is about. In this case, the report is substantially about the murder of 34 people and the decisions made in relation to the investigation of those murders. In that regard, this committee, as opposed to considering reports from a Comptroller and Auditor General or suchlike, is asked to make a decision on a matter of fundamental human rights. In every decision that it has to make, it has to keep, effectively, to the forefront of its mind that this committee, for the purposes of this exercise, is the protector of the most fundamental of all rights, effectively, the right to life enshrined by our Constitution and the European Convention on Human Rights.
Effectively, this committee is put in a position that no other committee of these Houses has ever been put in in terms of making a critical, serious and formal assessment of a report on a very fundamental matter. In that regard, we say that, although this committee is parliamentary and therefore political, it is, effectively, entrusted with discharging a protective duty. That duty is owed in the first instance to the immediate victims of these atrocities, in the second instance to those close to these events but luckily not injured or maimed, and in the third instance to the community at large. Effectively, since that protective duty which must be discharged is so high, the balance or burden shifts in order that the case which has to be made before this committee is not why there should be a public inquiry but why there should not be. Given the duties involved and the findings of the Barron report, the onus is very heavily in favour of a public inquiry.
The purpose of the process was to find the truth as far as possible. Obviously, any process may not lead to the truth. Therefore, the words "as far as possible" are important words but they are not words that limit. In other words, this committee has in front of it an opportunity to pursue another process by way of a public inquiry of whatever model, shape or form. By advocating or recommending a further stage of inquiry, this committee is moving the process on as far as possible. Whether that further inquiry ultimately gets to the truth of every single matter and aspect of concern is another issue but at least the process of investigation and inquiry is moving on as far as possible.
I will move on just to pinpoint what Barron did uncover in a general sense. Let us take it that the Government's detailed assessment, as outlined by the Taoiseach in November 1999, was that no case for a public inquiry had been made at that stage and that it lacked a detailed assessment. The Barron report confirms that there is evidential substance and foundation to the allegations that the Garda investigation was compromised, that the RUC did not co-operate, that the Government did not assist, that there is a reasonable basis for the suspicion of collusion, and that assertions made by "Hidden Hand - the Forgotten Massacre" had substance. On "Hidden Hand - the Forgotten Massacre", the report indicates that some of the factual conclusions are wrong by reason of misinterpretation or lack of other evidence, but with regard to the significant findings of the programme, the report generally supports them in so far as it creates substance and foundation to these allegations.
On the Barron report, I want to pause there. The significance to us of the report is that it provides a factual framework in which those allegations now have substance. In our view, Mr. Justice Barron's conclusions are primarily observational. They are not conclusions reached at the end of a critical phase of assessment and testing. In some respects the report is documentary in so far as it documents a whole series of facts. In other respects, it is observational.
The committee is well
aware of the gravity of the allegations that arise as a result of the
Barron inquiry. It is aware of the significance, even 30 years later,
of questions arising as to whether a murder investigation into 34 murders
failed, and to why it failed. It is aware of the gravity of the concern
as to why that inquiry and investigation did not proceed. It must also
be conscious of the fact that in the 1990s, the relatives were effectively
told that there was no substance to the allegations in the "Hidden
Hand - the Forgotten Massacre" documentary. That was the position
in 1993, 1994 and 1995. The message was delivered with the force and authority
of the Department of Justice, the Garda Commissioner and of the Director
of Public Prosecutions. Yet, eight years later that position, delivered
with such authority, unravels during the investigations conducted by Mr.
We are aware that the committee has indicated that various parties and Ministers in charge of Departments will come before it. In that regard, we simply reflect on the deep distrust the relatives and Justice for the Forgotten would have in respect of any Department advocating or indicating to this committee that the inquiry process is over because of the positions adopted by those institutions down the years and because of the fact that the Barron findings reflect on actions by those institutions, if not in the immediate past years then at least in the past decade and the decade before it.
Mr. Justice Barron, throughout his report, indicates the extent to which he proceeded on an informal basis, that his inquiry or investigative model was informal. That model of informality was probably adopted for good reason, first, because what was involved was an assessment, not a thorough public inquiry. Its purpose was to find out if there was substance to the concerns that had been expressed. Second, it attempted to adduce the basic factual framework in a non-confrontational way so that Mr Justice Barron could assess the facts that were emerging and say, "Out of this, do I now move to a stage where there are serious allegations?" In relation to that, our submission is that once the gravity of the allegations begins to emerge, the process has to change. You have to change tack; you can no longer continue with the informality. We say that change occurs at this committee stage, that effectively, in considering whether this matter is being pursued as far as possible, the committee has to ask itself whether it is happy to stop the investigative process with an inquiry that has an informal model, and whether that meets the requirement of the State to pursue these matters as far as possible.
We also indicate that
the committee has a difficulty in evaluating this report. The difficulties
arise in relation to how a committee conducts a "due diligence"
on such a report. It has only the report in front of it. The committee
does not have access to the primary documentation. The committee cannot
test, check and analyse. It has not seen the Garda reports from the period;
they have not been published. It has not been able to dip in and out of
the various statements and internal reports that are contemporaneous to
1974. It is limited entirely to the extent to which information emerges
in the Barron report itself. It is not privy to the flow of correspondence
between the Commission of Inquiry and the Police Service of Northern Ireland,
the Northern Ireland Office or the Garda Síochána. That
is not a criticism of Barron, of the Barron Commission of Inquiry or of
the Barron report. However, it poses a difficulty for a committee that
has been asked to make a judgment. How can members make that judgment
if they cannot test the primary material?
That is not a lawyer's argument for a lawyer's tribunal. What it reflects on is this: if one goes back to Roman times and traces the concept of the investigation and the process of debate around issues, there are certain key aspects to any debate - the exchange that occurs between interested parties. That intellectual exchange, which effectively is part of the process of assessment, has not occurred within the Barron Commission of Inquiry. We are all aware - I am sure the committee members are aware - that they often come to an issue in this chamber with a very fixed mind as to the facts, how they are to be interpreted and what the conclusion should be. In the course of very rudimentary and primary political debate, their views change, their understanding of the facts change, their understanding of the emphasis on the facts change and their understanding of what is material changes. As experts become involved, reports are submitted and others with expertise engage, the matter widens out and views change. That occurs simply in respect of matters of policy that at times are non-controversial.
When one gets involved in an investigation of matters fundamental to the murder of 34 people, what happened to the criminal investigation and what political action surrounded it, that interrogation and involvement by other parties is fundamental to any fair analysis and assessment of the issues and facts. So the criticism is not of Judge Barron or of the way he has assessed it. It is a fundamental criticism of a commission of inquiry as a final process of inquiry. It cannot discharge that because it leaves gaping holes. No one individual sitting in a room, assessing material, meeting people in comfortable surroundings and engaging in one to one discussions with them can effectively conduct the process that would lead to an adequate assessment of an issue of this significance.
In summary, therefore, we concluded our first submission by simply saying the committee has a protective duty. If this committee was to go to any other country, be it a Caribbean country, a Third World country, and look at an investigation into a similar incident and be presented with a model of inquiry that finished where Barron finished, it would not be satisfied that that investigation met the international standards for investigations into human rights abuses. It would not meet the criteria set down by various United Nations protocols.
We say the gravity of the evidence uncovered by Barron moves this process - compelling - from an informal inquiry towards a formal inquiry. We indicate that Barron himself has not been able to establish the truth in relation to a wide range of matters. That is acknowledged by him. We say this committee is impeded in its ability to bring Barron from an unfinished stage to a finished stage. You cannot do that yourselves. You have to be conscious of the fact that in 1995 the State, in a very, very strong statement, sought to indicate that there was no purpose in any further inquiry.
We, effectively, come to a conclusion that many lines of inquiry are not exhausted, and emphasise the concept that the obligation of the State is to reasonably exhaust every resource it has. We say there are resources which this State has not yet exhausted. All the relatives can ask is that the State exhaust its resources in pursuing the issue. Whether that ultimately leads to finality or closure, that is all that can be asked of the State.
That, effectively, summarises what we tried to set out in our first submission. The second submission deals, in effect, with and tries to highlight and put a factual framework on what arises from Barron. I do not know, Chairman, if you want me to move onto that at this stage-----
Chairman: Just before you do, I wish to say something that I forgot to say earlier in relation to privilege. While members of the committee enjoy parliamentary privilege, that same privilege does not apply to invitees. I have to say this. Would you take us briefly through it and then Mr. Wylde's document? We will then have questions.
Mr. Ó Dúlacháin: What we have tried to do is take the Barron report and in some way gather the information throughout, restructure it to get some overall impression of our current criticisms in relation to the investigations that took place and the other issues that arise. We start, first, with the Monaghan investigation. To understand the significance of the issues arising out of the Barron report it is important to take a look at where the Monaghan investigation was on 17 July 1974 when, effectively, the Monaghan investigation closed. We know that in the immediate aftermath of the bombings the Garda was aware that the bomb car had been stolen from Portadown that afternoon, and it was clear that Portadown would feature largely in the investigation. We also know that the importance of Portadown would be further enhanced when the Dublin investigation team identified David Alexander Mulholland as a suspect. From both ends, early on - although we do not know exactly when David Alexander Mulholland was identified - Portadown was central to the Monaghan investigation and the Dublin investigation.
We know that a list of suspects developed quickly; we do not know in what sequence or what exact order. It is not clear when they emerged but the following information was available by the end of June-beginning of July. At the outset, the Garda was aware from early in 1974 that a Stewart Young and Nelson Young were active loyalists and active around the Portadown area. We know that as the investigation started Stewart Young had been seen on the afternoon of 17 May 1974 in a car park from which the bomb vehicle had been stolen. We know that he and a Charles Gilmore and a Ronald Michael Nikko Jackson had also been seen there, and we know that an RUC intelligence source had heard a conversation between Young and a Fulton in which Young was said to have admitted that he and Jackson had stolen the car. On top of that, we know that Stewart Young was arrested on 4 July in relation to the hijacking of a oil-tank near Moira in County Down. We also know that a Dublin associate or associate of Stewart Young was known to have stayed in the Four Courts Hotel up to 16 May 1974 and was being sought by the Garda. Again, we know of another link to the Dublin investigation, that there is a link through the Mulholland connection, and we know there is another link to Portadown through Stewart Young.
We know that Nelson
Young was identified as resembling a person seen leaving the gents' toilets
in Church Square, Monaghan, 20 minutes before the bombing. We know that
Samuel Whitten was identified as resembling a man seen driving around
Monaghan town the previous evening. We know that a detailed description
was given of a passenger with him, although it is not clear who that was.
We know that Samuel Whitten was also identified as resembling a passenger
in a bomb car seen around 5 p.m. near Middletown, travelling from Armagh
in the Monaghan direction.
We know that the Garda paid a confidential source for information and that that source provided a name for a driver of a getaway car, a name of a public house in Middletown at which the bombers are alleged to have stopped, a name of a farmer in whose shed the explosives had been stored and the name of a person who, it is alleged, took the Dublin bombs from Middletown to Newtownhamilton. It appears that a further source supplied information about explosives moving between three farms, that the Dublin bombs had been moved to Newtownhamiltion by a named farmer and three other named persons, that the bomb-maker was named, that it was recorded that he drove the bomb car to Monaghan and that the driver of the getaway car was named.
We are aware that the Garda was aware of the oil lorry hijacking involving Stewart Young. Therefore, three others involved with him in that incident could have been considered as suspects for involvement in the Dublin and Monaghan bombings by reason of that connection; if they were involved with Stewart Young in the oil lorry hijacking in July, then they were obviously part of the Stewart Young gang. The importance of that is that that linked back to Belfast because two of them were from Belfast. We are also aware that the Garda was aware that there was a connection between the bombings and two other bombs on 24 May 1974 at the Chalet Bar in Portadown and at the railway line at Knockbridge, Portadown, and that there was also a possible connection to a bomb factory found in Portadown controlled by the UDA.
We are aware that the Garda was aware that William Fulton had been arrested in Scotland and that, therefore, those arrested with him in that incident could have been considered as suspects for involvement in the Dublin and Monaghan bombings. That was the state of play as of the end of June-beginning of July 1974. There was substantial intelligence and substantial information available about a range of people and about a range of people, the list of whom could have been added to.
We then go to what happened after July 1974. We know that a farmer was eventually arrested some time after November 1974 and provided additional information. We do not know what the words "eventually arrested" mean. Does it mean it was in 1975, 1976 or 1977? It is not clear what, if any, new names, emerged and there is no evidence of any development. We know the Garda in 1975 showed an interest in the arrest of Robert Bridges and that this interest continued through to his trial in May 1976. There were no developments and he was never ever interviewed.
In August 1975 a Garda memo referred to a man from Newtownhamilton. It is not clear from the report whether this was a new suspect but, again, no developments follow.
There is reference to a letter from the RUC to C3 in the Garda intelligence section, dated 16 January 1976. It contains information regarding an Ivor Dean Knox Young. There is no indication from where he emerged, why the letter arose or in what context information was being sought in relation to Ivor Dean Knox Young but it is interesting to look at the information being provided by the RUC in January 1976. In 1976 they told the Garda that this man had been in custody from 26 April 1973 to 23 November 1974. What they did not tell the Garda was that he had been on compassionate leave the week before the bombings. That would have been material. If there was a reason to inquire as to where Ivor Dean Knox Young had been during that period, the fact that he had been on compassionate leave the week before the bombings would have been relevant. It begs the question as to how the information about his period of detention could have been furnished without the party delivering that information also being aware from his record as to when he had been released on compassionate leave.
We know that in May
1976 information was received regarding a named man from Keady. Again,
there is no indication of his name and he appears never to have been questioned.
In January 1979 two detectives from Dundalk were told by CID officers
in Portadown that they had received information about Joseph Stewart Young
and two other individuals. The other two individuals are new suspects.
They were not interviewed in 1979; they were never interviewed. They were
never interviewed following the Yorkshire Television programme, though
they were not referred to in that programme, and were never interviewed
following the Weir allegations.
From 1993 to 1998, the Garda conducted inquiries into the Yorkshire Television programme. In the first phase - there were two phases to those investigations - David Mulholland, Samuel Whitten, Robin "The Jackal" Jackson and Ronald Michael "Nicko" Jackson were interviewed. Effectively, four people were interviewed. In 1993, when I think Máire Geoghegan-Quinn was Minister, questions were raised and there was a second phase of investigation in which Billy Hanna and Samuel Whitten are connected. The interviews following the second phase were with Charles George Gilmore, Joseph Stewart Young, Fred Holroyd and Colin Wallace. With regard to the inquiries following the Yorkshire Television documentary, it is not clear to what extent the gardaí tried to establish a wider field of suspects, such as were established in the later Garda inquiry into the Weir allegations.
Effectively, all that happened in the 1993 to 1995 assessment is that what appear to be new suspects were questioned; but there was no reconsideration of the suspects from 1974 who appeared during the 1970s. There was no question as to whether those suspects should have been investigated. It simply focused on the new suspects; it did not focus on the totality of suspects. It is clear that the exercise of that time did not reflect an incisive review of the original Garda investigation. It simply did not happen. If it had happened in 1993 to 1995, far more people would have been interviewed.
We know that from 1999 to 2004 the RUC conducted inquiries into John Weir's allegations. Similarly, we know that the Garda commenced investigations. We know that five more individuals were interviewed at the request of the Garda: James Mitchell, Laurence McClure and three others. We know that in 2001 two other interviews were conducted.
From the commencement in 1974, there has been an issue about the mode of interviewing suspects and about whether gardaí should have attended interviews. In so far as it emerges from the Barron report, gardaí were not present at the interviews of any of the seven individuals who were interviewed following the Weir statement in January 1999, in the most recent phase of the Garda investigation. That requires an answer. Why, even at this stage, is there a reluctance to allow gardaí to be present at interviews or a reluctance to request that facility? What happened in those interviews in the last three to four years? We do not know. What we do know from the Barron report is that the Garda received transcripts of the interviews. We do not know whether they are complete, full or thorough. There are even questions about the investigations that the Garda have been able to conduct in recent years.
It is clear that the Northern security forces had extensive information on Monaghan suspects in 1974. We know that no action was taken on their own initiative on foot of that intelligence. Criminal actions took place in Northern Ireland in 1974, apart from the explosions themselves. There were car hijackings, kidnappings and the theft of vehicles -- all primary offences in Northern Ireland. However, the murders that occurred in this jurisdiction were criminal offences under the law in Northern Ireland and could have been prosecuted as such in Northern Ireland because they involved the common law offence of murder. We see that although the RUC was providing photographs and intelligence, there was no murder investigation and no pursuit by the RUC of what would have been standard criminal investigation steps on its part.
The suspicion remains that the persons named by Wallace should have been identified as suspects in 1974. The suspects who emerge in late 1979, 1990-93 and 1999 are referred to by Wallace in documents from 1974 and 1975. The question which arises is, why were these names not circulated to the Garda or the Government as suspects in 1974? In particular, Wallace, in 1974 and 1975, refers to the Youngs, Jackson, Mulholland, of whom the Garda was aware, Hanna, Kerr and a Robert McConnell. While Wallace plays down the interpretation of what he calls an "excluded list", a list that existed in the summer of 1974 ring-fencing certain names from military and intelligence observation, the fact is that those people on those lists are subsequently shown to be involved in various episodes and to have a notoriety. The Wallace letters explicitly refer to a connection between those people and a special duties team.
The Barron report does not contain the full text of the Wallace letters and they are not appended to it. I will read two short extracts. In August 1975 Wallace writes to his former military superior: "There was intense hatred of Rees and Orme within intelligence and special branch and there is good evidence that the Dublin bombings in May last year were a reprisal for the Irish government's role in bringing about the executive."
He refers to "one of Craig's people". Craig, effectively, was involved on the intelligence side. He was the MI6-MI5 security co-ordinator and in so far as being the security co-ordinator he was, effectively, in charge of the co-ordination of intelligence and would have been the primary communicant of intelligence to the MI5 office with which Irish Army military intelligence was meeting on a regular basis. In so far as Irish Army intelligence was gathering evidence or information, it was, effectively, from Craig's people. He refers to it: "According to one of Craig's people, some of those involved, the Youngs, the Jacksons, Mulholland, Hanna, Kerr and McConnell were working closely with SB and Int at that time."
Chairman: Do we have those documents?
Mr. Ó Dúlacháin: I can furnish these letters to the committee.
Chairman: Thank you.
Mr. Ó Dúlacháin:
In a subsequent letter in September 1975 he goes on:
Effectively, when one looks at the Wallace letters with the benefit of the entire Barron report, there are very serious questions in relation to the stewardship and control of the co-operation that was coming from the RUC. The Wallace letters refer to two people, whose names appear consistently over the years-----
Sorry for interrupting but to come back to module two and whether the
relevant issues were addressed, what is the relevance of what you are