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

The Sub-Committee met at 10 a.m.

Justice For The Forgotten Delagation:
Ms Bernie McNally (Chairperson)
Mr. Greg O'Neill (Solicitor)
Mr. Cormac Ó Dúlacháin (Senior Counsel)
Ms Margaret Urwin (Secretary)

Sub Committee Members Present:
Deputy Seán Ardagh (Fianna Fáil),
Deputy Joe Costello (Labour)
Senator Jim Walsh. (Fianna Fáil)
Deputy Máire Hoctor (Fianna Fáil)
Deputy Finian McGrath (Independent)
Deputy Paul McGrath (Fine Gael)
Deputy Peter Power. (Fianna Fáil)

DEPUTY SEÁN ARDAGH IN THE CHAIR.

Chairman: I welcome Ms Bernie McNally, chairperson, Justice for the Forgotten; Mr. Greg O'Neill, solicitor; Mr. Cormac Ó Dúlacháin, senior counsel; and Ms Margaret Urwin, secretary, Justice for the Forgotten. You are all very welcome here today to make the submission on module 5 of the hearings of the sub-committee on the Barron report. Before you begin, I remind you that while Members of the Oireachtas and members of the sub-committee enjoy parliamentary privilege, that same privileged does not apply to you. You have your legal representatives who will have informed you of this. Mr. Ó Dúlacháin, will you commence, please?

Mr. Cormac Ó Dúlacháin: Thank you, Chairman. As you see, we are here with Bernie McNally, chairperson, Justice for the Forgotten; Margaret Urwin who has been secretary of Justice for the Forgotten for many years, and a number of our former chairpersons in the audience this morning.

What we propose to do this morning is spend about a half an hour setting out our stall in relation to what requires further inquiry, the practicalities of such an inquiry and how it can be pursued. I am going to speak for a little while in relation to those matters. To assist the committee, Mr. O'Neill is going to look at a number of particular cases - a small selection of special circumstances - for the purposes of illustration. Ms Urwin is going to conclude with a number of observations and comparisons with the position adopted by our Department of Foreign Affairs when advocating a public inquiry into the murder of Pat Finucane in 1999. Those observations are pertinent to what this committee is entrusted with at present.

As an aside, there is one point of information I would like to bring to the committee's attention, that is, in relation to Lieutenant Colonel Nigel Wylde. Various people in referring to him have made the point that he was an army ordnance disposal officer in Belfast in the summer of 1974 and arrived after the Dublin-Monaghan bombings. His experience in Northern Ireland is not limited to that. He served, we believe, as an intelligence officer in Armagh in 1976 and in that capacity would be aware of many of the matters that are referred to in the Barron report and the background to them. It is not a matter we have addressed with him because we retained him as an expert witness to deal with a matter of expertise, that is, particularly the area of explosives. He has clearly indicated to us that he is not in a position to act as an expert witness in any other capacity but in so far as his observations and conclusions are in relation to matters relating to explosives, they are drawn from a much broader background than simply a question of three months spent in Belfast in the summer of 1974. I simply want to outline that as a point of information for the committee.

Let me return to an overview of why we are here today. We have sat back over the past number of weeks. You have seen members of Justice for the Forgotten on the opening day come before you. We have had Garret FitzGerald, Patrick Cooney, Seán Donlon, the Garda Commissioner and Garda officers. We have had the Minister for Justice, Equality and Law Reform and officials of his Department. We have had the Chief of Staff of the Defence Forces and officials of the Department of Defence. We have had explosives staff from the Department of Defence. We have had Dr. Donovan and Dr. Sheila Willis from the State forensic laboratory. We have had Nigel Wylde, Colin Wallace, the Pat Finucane Centre and others.

We, in this process, have sat passively listening but not engaging. That at times has been a frustrating experience, at times a fascinating experience and at times an infuriating experience because in essence we were in a forum where one could conduct a public inquiry, where people were present, where people could be questioned but where the function of this committee was not to conduct an inquiry and certainly where we had no inquiry rights.

The issue arose that an inquiry would require elaboration, probing and teasing out. It has focused our minds in some respects on what this sub-committee has been trying to do. Conscientiously, the sub-committee has set about asking a lot of questions and reading a lot of material. The question arises as to why this has been going on.

Two things have been happening. First, the committee obviously has to ask an awful lot of questions to understand the subject matter. It is being asked to make a judgment on what is to follow so it has to have an understanding of the subject matter. The questioning on a subject matter brings the committee very close to bordering upon an inquiry itself. By the very nature of asking questions, one's innate curiosity draws one deeper and deeper into the factual detail, and it is very hard to stand back and not become engaged in judging the subject matter itself.

We understand the function of this sub-committee in that people have come before it and been questioned in order to assist the sub-committee in understanding the subject matter. We do not see it as our position to prove anything to this sub-committee. In 1995, members of Justice for the Forgotten met with the then Minister for Justice, Nora Owen, and at the conclusion the Minister addressed the members of the group by asking that if they find any evidence, to please bring it forward. It is not the obligation of victims to be investigators. It is not our obligation, as their advocates, to come here and prove that there is collusion or to prove this or that.

What we have set about doing is assembling the material to show that a very serious issue warrants consideration. In so far as we are engaging with the committee, we are trying, at one level, not to get drawn too deeply into the details because that requires the committee having various reports opened to it and hearing more and more witnesses. The matter thus grows bigger and bigger. It is a question of information being given to this committee so that it best understands the subject matter.

At times in the past few weeks we have also sensed that we have been drawn into a game of linguistic gymnastics, as if words such as "assessment," "addressed," "terms of reference," "lessons to be learned," "required," and "fruitful" have in themselves become more important than the subject matter and the task at hand. The horror of what occurred in Dublin and Monaghan on 17 May 1974 can at times get lost in that language. In an attempt to simplify it, we see the sub-committee's task as having to address a number of matters. First, does the Barron report bring finality? In essence, does it bring closure?

The questions that follow are in some respects simple. Are there genuine issues to investigate? Are there serious issues that need to be pursued on foot of the Barron report? We then move on to an important area in which political judgment has to be exercised. In the scale of things, how grave are these issues? What is serious to one person is not as serious to someone else, and a judgment has to be made in terms of the gravity of this issue.

Then there are other questions that have taxed the sub-committee's mind. Are these issues amenable to further inquiry? The sub-committee can be satisfied that there are genuine concerns and that they are of the most serious and grave nature, but it then has to consider whether they can be inquired into.

It must then be asked at what cost is such an inquiry to be pursued? I do not mean cost simply in financial terms. There is a political judgment in relation to cost. What are the political implications of not pursuing this? What are the political implications of pursuing it? Cost is more than simply money.

In ways, the most important days for us have been those when we listened to the deliberations of the sub-committee because as we see it, our duty is to try to address the matters that are giving rise to concerns among the members of the sub-committee, including the questions they are asking. The questions that seem to be coming to the forefront include the question as to whether Mr. Justice Barron has done enough; why take more action after 30 years; what more will be achieved; can it be done and is not the co-operation of the British Government essential. Other factors that play into the political dynamic have been referred to, such as tribunal fatigue, costs, the question of it becoming a lawyers' game; a floodgate; why is this case more important than other cases; why are 34 deaths more important than one death. There are other issues, such as the fact that with the best will in the world, all the relevant parties are dead and will this not make further inquiry impossible? These are the strands we have been sensing in the questioning that has been raised.

We first became involved in 1996 as lawyers, the members of Justice for the Forgotten having been together for a number of years before that, with Margaret Urwin having been secretary for a few years of the campaign. Our concern is to ascertain whether the relatives are entitled to a verdict on who killed and maimed their loved ones and, in respect of those who were physically injured, who injured them.

The second question is why were the killers not pursued and brought to justice? The language can be re-framed and reconstructed in a hundred different ways, but we believe that two issues should be the central focus of a public inquiry. The first is what happened to the Garda investigation and why? The second is, having gone through the Barron process and gathered information, who were the perpetrators and did the UK security forces collude with them?

Some material, information and questions have been answered, but we have repeatedly made the point that this has not been done in a comprehensive fashion, not in a sense that one can regard it as a final report to the relatives, as bringing about closure. There is no sense that we as lawyers feel we can present the Barron report to the members of Justice for the Forgotten as the response of the State on the basis that this is all they are entitled to know and that they are not entitled to a further inquiry. Essentially, the choice is to present them with the Barron report and no more. If so, the files from the inquiry will be placed in the National Archives and locked away for 30 years or probably, in the interests of national security, for 50 or 100 years. We are at a cross-roads. It is either the end as far as the official State response is concerned and there is to be no further inquiry, or there is more to be done.

We are not afraid to criticise the Barron report or the Barron process. This criticism is not necessarily a personal criticism. However, to us the report is, in some respects, one person's journey through a mass of material with no meaningful assistance. Mr. Justice Barron was effectively left to his own devices with very little resources to travel through whatever material he could amass and others could bring to him and to try to assess it. He did it without any clear guidance or definition of what constitutes collusion, without a method of assessing collusion and no structure to weigh up different forms of evidence. There is no structure. As one looks at the report how does one measures journalist sources and journalistic information with other information and how to you grade and assess it?

In some respects Mr. Justice Cory was given a far simpler task because he had a very defined objective, namely, was he presented with sufficient material to justify a public inquiry. It was not that he had to go into every nook and cranny and dot every "i" and cross every "t"; he had to consider if there was sufficient material to give rise to alarm to the effect that this is a very significant matter of public concern that has to be inquired into. In some respects, Mr. Justice Cory benefited from a far more focused and purposeful inquiry.

What did the Barron process lack? It lacked public probing. It is important to understand what public probing is about. When evidence, material and information is presented for public probing it is tested, clarified, elaborated and illuminated. It entails a vigorous and informed engagement. That is self evident in terms of what the sub-committee has been doing. If this was a sub-committee consisting of a sole chairperson with no members it must be asked how effective would be the questioning? The sub-committee has shown that there is an issue of intellectual engagement. A matter such as this cannot be left for one person to sift through for one, two or three years and expect to get the product to which the public is entitled.

The process of public probing is not about lawyers playing games in courtrooms, grand standing or oratory, it is the surgery that is applied to a problem to test and assess it so that one ends up with an effective assessment and a process of judgment. None of that occurred within the Barron process. The end result is unsatisfactory. The report contains a wealth of detail but it does not result in a comprehensive analysis and conclusion.

Mr. Donlon put it in essence in one respect when he said that the issue is one of national interest and national sovereignty. In many respects we have a membership card in the United Nations. We signed a European Convention on Human Rights under the Council of Europe because we regarded ourselves as a nation. Mr. Donlon has focused on the public issue involved here, broader than simply this group of victims. I understand Mr. O'Neill will avert to this in a few moments, namely, that the issues underlying the Dublin-Monaghan bombings and the threats arising from them were of far greater significance than any of us have appreciated.

Why a public inquiry? The reason for a public inquiry is that there is no other means available to the relatives. There is no where else they can effectively go. There is no ongoing criminal investigation into collusion. There was never a Garda investigation into collusion and there is no indication that this will ever take place.

For all its faults, the Stevens inquiry has not been an inquiry but a criminal investigation into collusion that has been pursued in Northern Ireland for 12 years with the object of gathering information and evidence for use and presentation in criminal trials. It has been extraordinary to watch Stevens because it has welded both a public reporting element, or at the very least reporting to the British Government, but it has essentially been driven by a police force and by police officers. That has never occurred here. It was never even contemplated at the outset of the investigation into the Dublin and Monaghan bombings that the concept or the issue of collusion would from any part of that investigation.

There is no prospect for personal actions by these relatives against the British Government. They cannot sue in this jurisdiction. There is no state right of complaint by the Irish Government to the European Court of Human Rights. What was available in the 1970s by way of the Irish Government complaint no longer exists. There is no forum for international adjudication so when we come back here we are effectively saying that these citizens of this State can only turn to their Parliament and ask the Parliament to exercise its power to establish a public inquiry.

What is there for a public inquiry? We made the point in the submission but I do not want to go too much into it. First, one starts with the information and material gathered by Mr. Justice Barron. That is a launching pad for the interrogative process. The information that already exists can be taken further. It can be studied, researched, analysed and put through a critical process. Second, the process of gathering information is ongoing and I do not think anyone could be but in awe of what the Pat Finucane Centre has achieved as an NGO since 1999. Effectively, Paul O'Connor and Joanna Keenan, through their office, not as high paid lawyers but as an NGO, have been gathering evidence on the ground. That, in a way, is a signpost for what can be achieved and begs the question: what more can be achieved by an effective inquiry? From our point of view, there is a road in terms of investigation yet to be travelled and a roadblock should not be put on that road. One cannot decide at this stage, having got as far as the Barron report, to suddenly block that road and say, "We will travel it no further."

I will illustrate, as an aside, what investigations are ongoing. There is a reference in the Barron report to an incident at Dublin docks. I think the sub-committee might be familiar with it. It concerns a British Army officer. The Barron report contains no detail in that regard. There is a military army report about it and there is a note somewhere in the Garda file about the registration being checked. Mr. Justice Barron has taken it that the Garda established that the registration number had never been issued. No one has ever checked in the vehicles registration office in Swanley whether that is so or not. Our initial indications are that it may not be so. The evidence that appears on the Garda file is itself being investigated by us and we are waiting for written confirmation of what exactly was the status of that vehicle. That is just one small example.

Arising from the same incident, for the past two weeks, intensive inquiries have been conducted by the harbour police and the Dublin Port Company to establish whether what is on their files from 1974 related to that particular incident. They are not sure whether they will or will not uncover anything but no one ever asked them. In a similar fashion, there is a whole range of inquiries to be made with the Irish Prison Service regarding the connections recorded in regard to loyalists who were in prison in Mountjoy in terms of communications to them from visitors and correspondence from and to them. That information has never been properly assembled or gathered. One gets a sense that small areas of the Barron report lead on to further inquiries, which will either close an issue or raise an issue but very basic facts have not been tested and closed off.

I think it is a very legitimate question to ask why you call an inquiry into something that happened 30 years ago. I think it was answered by the Dáil when it set up a tribunal of inquiry into abuse in the residential institutions of the State which is inquiring back into the 1940s, 1950s and 1960s. No one said this would open a floodgate; no one said we would not face as a State and address the 10,000, 15,000 or 20,000 people who would come forward and say, "We were not dealt with properly."

At a very simple level, the Revenue Commissioners are conducting, this year, an investigation into foreign accounts held in the Isle of Man. Their cut-off date is 1974. They are willing to look back 30 years in pursuit of taxes, in pursuit of financial accounts lodged in the Isle of Man. The planning tribunal has gone back to 1985.

The criminal investigation into the Lockerbie bombing took 12 years to get to trial. On behalf of their citizens, the British Government and the American Government were willing to go to the United Nations, were willing to get United Nations resolutions, were willing to impose economic embargoes and were willing to enter into legal agreements with the Netherlands for the construction of a camp site and for the declaration of that camp to be part of Scottish territory. The British Government was unwilling to accept any impediment or obstacle to the pursuit of those involved in the Lockerbie bombing.

In relation to the Air India plane that was bombed off the coast of west Cork in 1986, it took 17 years of criminal investigation to get to a trial; that trial opened in Vancouver last July. Nowhere did anyone say, "Stop; it is not worth it; do not pursue it".

There is another issue in relation to the figure of 30 years. It took until 1998, effectively, to get the peace process on the road. At any stage up to 1998, what were the prospects, in that political environment, for establishing a tribunal of inquiry into these matters? What was the political reality of embarking upon such an inquiry without someone using it for some other political motive or political end?

Why we are here today is part of the conclusion to the conflict. It is part of the menu of the Good Friday Agreement; it is part of the commitment that was given in that Agreement to address the needs of relatives. It is not the relatives' and victims' fault that the 20 year period from 1974 to 1994 was turned into a cycle of violence and counter-violence. There is a very special reason 30 years is not a reason to say "No" now, that is, the political circumstances which have prevented this matter from being properly dealt with over the past 30 years. Time has to be judged in that context.

This inquiry is part of a process of peace-building. It is part of the peace-building agenda. How can you build peace if you do not know the sources of past violence, if you do not understand the cycle of violence, the causes of violence and where it emanated from?

How can one build peace if one does not know the truth about the past? We know the truth about the IRA, the UDA and the UVF but there are other elements of that truth that are essential to peace building. There is another element when we come to talk about cost. How much money is there for making peace? There seems to be any amount of money for making war. On the scale of things, one can spend any amount on war machinery and nothing on peace machinery. There is a value judgment when it comes to considering the cost factors. I want to conclude on this point - that this inquiry process has to be seen as a part of peace making. I would now like to hand over to Mr. Greg O'Neill.