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 P. Power: I thank Mr. Ó Dúlacháin, Mr. O'Neill, Ms McNally and Ms Urwin for coming to assist us in our work. I found the presentations this morning extremely powerful and certainly thought provoking, especially as Mr. O'Neill raised issues which had not been raised previously, which I found extremely interesting. I have very little in my own mind to clarify arising from what you have said but I have a few questions. I do not want the impression to be given that because of the fact that we ask questions we are predisposed towards a particular point of view. We are not. Certainly, I am not. It is important that you know that.

Mr. O'Neill, you spent a lot of time on the collusion issue which certainly is a major concern and made the point that as the State had failed its citizens, an investigation was, therefore, required. That point has been made on a number of occasions. If it was to you that the State through the Barron inquiry and its report says: "Yes, there has been collusion; we have made a finding that there has been collusion, that there were deficiencies in the Garda investigation, that major lessons have to be learned about this", what would your response be? A reading of the Barron report could be that the matter has been inquired into, an investigation has been conducted and Mr. Justice Barron has said there is certain evidence of collusion, in some cases an inference and almost a probability that there was. He states without doubt that the Garda investigation was flawed etc. That is in the public domain and people know that there was collusion and faults in the whole investigation. By holding a public inquiry, what extra benefit will be added to that?

Before these hearings started, and even since, people would say to me that they know the army was, at some level or another, involved in this, that there was collusion. The citizens of the State know that and they know that a proper investigation did not take place, and that we now have a report, compiled on behalf of the State, agreeing with this view. How would a public inquiry further matters?

Mr. O'Neill: The Deputy means the British Army. The Deputy is not casting any aspersions against our own Army.

Deputy P. Power: No, certainly not.

Mr. O'Neill: First, Mr. Justice Barron's work did not amount to an inquiry. He was tasked to address these issues and to carry out an assessment. He was not tasked to conduct an inquiry.

Deputy P. Power: His terms of reference were to carry out a thorough investigation. People may disagree whether he did so.

Mr. O'Neill: We are back to what Mr. Ó Dúlacháin was saying about semantics. Mr. Justice Barron looked at papers and occasionally interviewed people, including those who we introduced to, or located for, him. He did not put people under oath and he did not give them the opportunity of rebutting views that he was forming. Mr. Cooney has addressed some of the deficiencies in that process and in terms of what he was able to do. He also pointed to the drawbacks in that process and, indeed, in this process because. We are dealing with mass murder but we have to be careful with what we say as persons' reputations might be at stake.

There are great limitations to the processes that have been carried on to date. I might be a little happier - I would not be happy - if I knew that Mr. Justice Barron's findings about the Garda investigation were accepted by the Garda authorities, but they are not. Much of what is said by Mr. Justice Barron about the response of the Government of the day is not accepted by leading members of that Government. We are left in a situation whereby a retired Supreme Court judge, a man for whom I have a great deal of respect and whose integrity I would not question for one moment, has, with very limited resources and in a limited process, reached certain conclusions which have been challenged by pillars of the Establishment and agencies of the State.

In addressing or considering this report, the sub-committee has looked, almost in inquiry mode, into certain aspects of what Mr. Justice Barron touched upon. It has received submissions from experts in the Army, etc., who have advanced propositions which might be at odds with what Mr. Justice Barron concluded.

We have a situation where after four years of this process, the families and the people of Ireland are left with a number of different possibilities. Either the Government of the day, if one accepts the Barron report, did not show that much care and attention to the issue or, if one accepts what Mr. Cooney stated, they did. Either there was a flawed investigation, which is what the Barron report states, or there was not a flawed investigation because that is what Commissioner Conroy stated. That is simply not good enough for something of this seriousness. If one was investigating a matter which touched the financial affairs of a company, individual or citizen who was appearing before this committee and matters were left lie like that, the person would be in the High Court like a shot. We cannot refer to the record which shows what a particular member of the Northern Ireland Judiciary knew about a certain series of crimes involving the RUC of the day. The fact that I cannot say that means that this process is limited and it is limited in a similar way to the way Judge Barron's process was limited. That is my answer to that question.

Deputy P. Power: You mentioned Mr. Weir's very serious allegations in relation to collusion. My interpretation of Judge Barron's report was that when he said that they had to be treated with the utmost seriousness, I think that comment was made in the section where he was just assessing Mr. Weir's credibility as a witness. I think your suggestion was that he had said in his report that they had to treated with the utmost seriousness and therefore we needed a further inquiry. My reading of it is that because of these allegations and the history of the individuals, he had to make an assessment of the credibility of the person. He said, "Having made that assessment, I am treating what he says with the utmost seriousness and I am making my findings on that basis." With other witnesses he could say, "I don't really take this person seriously." Would you agree with this?

Mr. O'Neill: I agree. He makes certain assessments with respect to Mr. Wallace and Mr. Holroyd but he makes very few other assessments. He makes an assessment about the Government of the day response to the bombings. He makes a number of assessments but they are, if you like, spots on the page that he is looking at - just areas. There is not a sense of a coherent and overall assessment. That is not a criticism of Judge Barron. The issue is too important to have it assessed along the same model, in the way the Profumo incident was assessed by Lord Justice Denning in the 1960s. Judge Barron did what Lord Denning did. He called in Mr. Profumo, he called in Dr. Ward, he called in Mandy Rice-Davies and Christine Keeler and other people, interviewed them and came up with a report. The result was that Dr. Ward was prosecuted in very dubious circumstances and committed suicide. A process like that can often cause an injustice. Pat Cooney feels hard done by; he feels that his character has been impugned to some degree. He has had an opportunity to come here and rebut that but you are left with a situation where the record of history is still undetermined. That is not good enough for this case.

Deputy P. Power: Many people have questioned the findings of many public tribunals also. I direct one question to Mr. Ó Dúlacháin. At the start of your presentation you were very emphatic that there were two essential factors which needed to be answered by a public inquiry, (a) the relatives were entitled to "a verdict", and (b), why were the perpetrators not brought to justice? You are asking the State for a public inquiry to provide a verdict and justice. You have used the words "truth" and "justice" throughout. What if it was said to you that there were some circumstances and some cases - history is littered with examples - where you could not get the ultimate truth in relation to any particular event? In relation to a verdict, this carries a strong suggestion that people will be found guilty, or not guilty, and serve sentences. Would you not accept that it is highly improbable that this could ever be ascertained?

Mr. Ó Dúlacháin: Not at all. The words "ultimate truth" are a trap. This is not about ultimate truth; it is about a process to get at the truth. If you start talking about ultimate truth, you will never embark upon any judicial determination of any kind. Even in a criminal trial they do not talk about ultimate truth. What you have is a process in which an inquiry can proceed. Certain people are dead but many people are still alive. By way of example the C3 files, the Garda who had custody of the C3 files and was responsible for that division, Assistant Commissioner Larry Wren, is still alive. As far as we are aware, he has never been questioned as to what happened to the C3 files during the 1970s. In 1979, Assistant Commission Joe Ainsworth took custody of C3 and would have been a custodian of the files in C3 and he has never appeared anywhere to be queried on the status of the files when he took over. That is one of the minutiae that has not been inquired into.

Two aspect that are capable of being investigated are the "what and why" of what happened to the Garda investigation. All that the Barron report tells us is what happened, it is like Mr. Justice Barron confirming that a plane fell out of the sky and debris was found on the ground. That is as far as Mr. Justice Barron got. We say the information is available to effectively reconstruct the "black box" of that criminal investigation.

It must be asked why did such a criminal investigation collapse. When he appeared before the sub-committee, the Garda Commissioner referred to changes that have taken place and improvements in technology and resources. Ultimately, every failure that Mr. Justice Barron identifies, other than a forensic assessment, is a failure of intellect, a failure to make decisions. It is not a failure in terms of science or scientific equipment. In looking at the investigation into 1974, we have no sense of confidence that even at this stage the Garda has reflected on that investigation and identified what has gone wrong. We do not know if the Garda has audited the unsolved murders since then. We do not know if the Garda is aware of the location of the exhibits regarding murders in 1975, in the early 1980s to the 1990's. We do not know if there is a central register of unsolved murders. We do not know in any sense whether the serious issues that arise from that investigation have been addressed in a substantive way.

Deputy P. McGrath: I welcome back our guests. The fact that we have been sharing the same room and the same air for the past month means that we are almost family at this stage. I will start by questioning Ms Margaret Urwin, who quoted extensively from a letter from the Department of Foreign Affairs in April 1999. She referred to the Government's position on the Pat Finnucane murder, that the accumulated evidence, including the circumstantial evidence, was compelling and warranted a public inquiry and that nationalists were undervalued and unequal before the law. A a few months later, Justice for the Forgotten called for a public inquiry into the Dublin and Monaghan bombings, but instead got the Barron inquiry. Did you have a view on that?

Ms Urwin: We met with the Taoiseach in April 1999, which was the firs occasion a serving Taoiseach met with the families and survivors of the Dublin and Monaghan bombings. It was 25 years after the atrocity and from then we lobbied all the political parties in an attempt to get a public inquiry established. We had a report from Mr. John Wilson of the Victims' Commission in August 1999, which recommended a private inquiry. That was rejected out of hand by all of the member of Justice for the Forgotten on the day following publication of the report. We subsequently went into negotiation with the Department of the Taoiseach, which came up with the Barron Inquiry. While it effectively was a private inquiry, it was unique in that it was to be an assessment of the available material. It was not to be seen as an end in itself and it was accepted as such by all of the members at a meeting in the Regency Hotel near Dublin Airport in December 1999 on the basis that this was a first step, an assessment of all the available material.

The second difference to an ordinary private inquiry, or the usual type of private inquiry, was that the lawyers for Justice for the Forgotten could have an input, a liaison with the judge, who at the time was to be the late Mr. Justice Hamilton. This meant that the lawyers could put forward suggestions to the judge as to who he might interview and as to documents or files he might seek. It also entailed conducting our own investigation as the resources of both Mr. Justice Hamilton and subsequently Mr. Justice Barron were quite limited. It was accepted on that basis.

We were also guaranteed public hearings before this sub-committee. That was to be the second strand. Therefore, we knew that we were getting the first two strands while a decision on the third strand, a recommendation for the holding of a public inquiry, was to be for the sub-committee. That was the difference from the standard private inquiry.

We were all disappointed that we could not get the public inquiry for which we had campaigned from as far back as 1993 if not before. Some of the relatives had campaigned for it before then. However what transpired was seen as a first step.

It was not within the remit of the late Mr. Justice Hamilton, and subsequently Mr. Justice Barron, to recommend a public inquiry. Deputy Power earlier mentioned that Mr. Justice Barron did not say if there should be a public inquiry, but he could not do so as it was outside his remit. That decision is with the sub-committee.

Deputy P. McGrath: Is it not true that in the establishment of the then Hamilton inquiry, which subsequently became the Barron inquiry, Justice for the Forgotten was in negotiation with the Taoiseach's office and that they came to agreement on various items? Did Justice for the Forgotten come to agreement on the terms of reference as well?

Ms Urwin: On the terms of reference of the Barron inquiry?

Deputy P. McGrath: Yes.

Ms Urwin: Yes, we did.

Deputy P. McGrath: Did Ms Urwin also say that there was agreement with the Taoiseach's office that there would be a further inquiry?

Ms Urwin: No. I said there was an agreement that we would be guaranteed public hearings, that first the judge would assess the material, then we would have the public hearings which we are now having, following which it would be for the sub-committee to make a decision. At that stage there were to be three options. One of those options - the third option - is now gone because of the Abbeylara judgment. It would have allowed the sub-committee to recommend that it should inquire into the matter.

Deputy P. McGrath: On that final point, Ms Urwin quoted from the letter by the then Minister of State, Deputy O'Donnell. Does she find it a little hypocritical that on the one hand, there was a call for a full public inquiry into the Pat Finucane murder while on the other hand, Justice for the Forgotten got what has been conceded to have been a reduced, private inquiry which the group was not happy with?

Ms Urwin: I do not see that I have conceded that we got this. It was always our understanding-----

Deputy P. McGrath: Did she say she was not happy with it?

Ms Urwin: We would have been a lot happier if we had got a public inquiry, but because we live in the real world we took the option open to us because it was the best one available at the time.

Deputy P. McGrath: Mr. Ó Dúlacháin, in your opening remarks you posed the question: does the Barron report bring about finality? What would you consider to be finality? You further asked the question: who killed those people and why they were not brought to justice? Are you implying that finality can only be achieved if both questions are answered?

Mr. Ó Dúlacháin: Finality is when you know that the State has done everything within its power to investigate the matter. That is finality. What we do know is that the State has not done everything within its power. It has not used the powers of public inquiry.

Deputy P. McGrath: You were involved in the establishment of the Hamilton or Barron inquiry, whichever one wants to call it, and its terms of reference, yet you said, "The report is one person's journey through a mass of material, with little help and no method or structure for weighing up evidence or material." That is a fairly damning indictment of something you were instrumental in establishing. Is it with hindsight that you are now saying that they did not have the powers to do what they wanted? What puts you in such a strong position to be able to make such a strong statement when it was, if one likes, something of your own creation?

Mr. Ó Dúlacháin: First, it is not an indictment. It is a review and a critique. Second, I think your approach is somewhat disingenuous. If we were happy to accept process A, we would never have asked for process B, which is this committee hearing, and we would never have negotiated a position to come to this committee to discuss a third stage. If we were going to be happy with whatever Barron or Hamilton did, we would never have asked for any more. The fact that we have this stage and the prospect of a further stage is evidence of our inherent reluctance to believe that stage A would meet the relatives' needs.

I think you were right when you asked the question in relation to the position of the Government in late 1999. We did find it inconsistent. We did find what was being said about the deaths of important people such as lawyers to be inconsistent with what was being said about the deaths of ordinary people. We made that point and we negotiated with the Taoiseach and the leader of the Labour Party and had discussions with the leader of the Fine Gael Party. The best we could arrive at, acting for ordinary people, was to negotiate a start to a process in 1999 which prospectively had three stages. We are here today simply saying that it has not achieved finality and that the State has not exhausted its own resources in terms of doing what it is capable of doing. We are now asking it to do no more or no less than what it is capable of doing and what it has done in other circumstances, in atrocities, in scandals, in cases involving people infected with hepatitis C and in other circumstances, to simply use what is available.

Deputy P. McGrath: Before I put my final question, I find it upsetting that Mr. Ó Dúlacháin would consider that I am disingenuous in any of my dealings at this sub-committee. I do not know why he would take it upon himself to put such a label on me-----

Mr. Ó Dúlacháin: I was referring to the argument, not to you as a person.

Deputy P. McGrath: You said, "you are."

Mr. Ó Dúlacháin: In the argument.

Deputy P. McGrath: That is for another day. My final point is addressed to both Mr. O'Neill and Mr. Ó Dúlacháin. I think both were extremely critical of Garda investigations and, in particular, the RUC investigation, which is outside our jurisdiction. In relation to the Garda investigation and a possible further inquiry, who would you see carrying out the kind of minute investigations that might be needed? If you have virtually no confidence in what the Garda might be able to do, who do you see taking their place in conducting those investigations?

Mr. O'Neill: Our comments were referable to the findings made by Mr. Justice Barron in terms of his criticism of the Garda inquiry. In so far as I mentioned the Garda inquiry, I did so in the context that the Garda appeared to be quite happy with the nature of the Garda inquiries conducted in 1974 and subsequently, but Mr. Justice Barron was not. That was an issue which remained to be resolved because if the Garda is challenging what Mr. Justice Barron has found, then that is something which has to be resolved or else the Garda has not confronted and addressed the issues he isolated. This could happen again. There are issues here.

As to who we would get to carry out the investigative role in terms of collusion, there are people who have some experience. We mentioned in our written submission, which members already have, that there were options available. We gave as an example the team retained by the Police Ombudsman for Northern Ireland, Ms O'Loan, which includes a number of policemen from other jurisdictions and people who have experience and skills in investigating collusion and corruption in police dealings in other countries and which would provide a pool of expertise. We would feel happy, if a process of inquiry was to be embarked upon, that that pool of expertise could be accessed.

Deputy Costello: Apart from the fact my colleague is not disingenuous-----

Chairman: I want to clear that up. It was an argument and if anything was taken personally, I am sure it is withdrawn.

Mr. Ó Dúlacháin: Completely.

Deputy Costello: Was Mr. Ó Dúlacháin's attitude to the Barron examination rather than inquiry similar to Michael Collins's attitude to the treaty - it was a step towards the ultimate goal? Would that sum it up?

Mr. Ó Dúlacháin: Maybe Mr. O'Neill was alive at the time.
Deputy Costello: The ultimate objective was an inquiry.

Mr. O'Neill: Let us not hope of sitting around a boundary commission on this, because we know what happened to that.

Deputy Costello: The delegation is welcome. The fact it has been here for the whole duration of these hearings indicates how seriously it takes the matter and how much store it places on the work we are doing. We appreciate that very much. I found its submission extraordinarily valuable. There are new elements to it that we have not heard to date. The Finucane Centre presentation yesterday showed how a small group with little resources was able, within four years since it was set up, to present a strong case for a ballistics link in the murder triangle in the area plus trial documents so on.

I do not want to look at the ballistics side, but in his statement, Mr. O'Neill said the fingerprints for collusion were to be found in police files which are on public record, of which I took a note.

Mr. O'Neill: They are not public record but they are publicly accessible through the process - in other words, they are not top secret.

Deputy Costello: That is what I want to explore. The Finucane people were able to say that they had worked with the PSNI and that they had also got some trial documents. Mr. O'Neill referred to a number of cases, including the case of the young man in Sallins who was knifed to death, the Mohan case in Castleblaney and the Rock Bar case. If the information is accessible in those cases and he thinks that the fingerprints of collusion can be got, what is to stop him pursuing discovery of documents in those matters in Northern Ireland to get that information? That would not require a public inquiry and probably could be done at far less expense.

Mr. O'Neill: Is it our job or is it the State's job to vindicate its citizens' rights? How far does the Deputy wish to quote a former Minister for Justice? How far does that go when she said to the relatives, in the 1990s, that there is no information and no evidence on the Garda files about this issue but they could go and find out themselves and come back and tell her. Is that what we are being told after the Barron process?

With the greatest respect, it is not the function or responsibility of the families to investigate crime. Collusion is a crime. It is the function of the State authorities. If it cannot be done through a police investigation, it should be done by a public inquiry.