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

Dé Máirt, 27 Eanáir 2004 - Tuesday, 27 January 2004

Public Hearing on the Barron Report

Deputy P. Power: I thank Mr. Ó Dúlacháin, the legal team and members of the Justice for the Forgotten for coming back to assist us in our task. I have several questions for Mr. Ó Dúlacháin on his submission that we received on Friday, and questions on the supplementary submission we received this morning. My questions should not be misinterpreted. Mr. Ó Dúlacháin made the point that it is by a rigorous examination of the points already made that progress may be achieved. I hope that nobody in Justice for the Forgotten might think that we have a preordained position arising out of any of these questions as we do not; they are to help us in our deliberations.

The submission received last Friday states on page one that "the process of analysing the report involved (a) the identification of standards against which the report can be measured, and (b) the testing of the report against those standards". That may be Mr. Ó Dúlacháin's definition of what the process should be, but where does that process come from, how did it come about, who defined and produced it? Is it in conformity with some international standard of which we are unaware?
Surely the first step in the process of analysing the report would be, as we all agreed, to look at our terms of reference and try to analyse the issues in the report, and then look to see whether they have been addressed or not addressed, as the case may be.

Can Mr. Ó Dúlacháin elaborate on where this standard came from?

Mr. Ó Dúlacháin: There are two different aspects to the standard. First, in terms of a procedural standard and a process of investigation, standards exist. There is, for example, the Minnesota protocol, and we can furnish the committee with technical documents on various protocols on human rights standards. In addition, the question of how one approaches the assessment of complicated matters such as collusion have been addressed by other forums. They have been addressed by the Inter-American Human Rights Court, a tribunal that is rarely heard of on this side of the Atlantic, but is an equivalent to the European Court of Human Rights, and we can similarly furnish some material to the committee on that.

The assertion that one should adapt some type of standard is an exercise more in logic in the sense that one is asked to assess material, what satisfies one when one assesses it and what one is trying to satisfy? One must ask oneself how far along the path of truth a standard takes one. If one is given a fact or facts, one must ask what questions those facts or circumstances bring to one's mind and whether those questions been answered in the report. The Barron report is rich with material, but that richness should not be confused with being a final product. Those facts must be examined and decisions made on what is revealed. One must then ask what questions that reasonably gives rise to. One must ask "If I were conducting this assessment or investigation, what further questions would I want on this particular aspect or would I want any?" I suppose in the end you have to adopt some type of scoring mechanism. Whether you reduce it to numbers or a mental exercise, you do have to look at each aspect of the report and say, "Have I got all the information that is relevant to this aspect? Am I working on partial information? Am I working on information that is second-hand? Am I working on information that Barron was able to test himself? Am I working on hearsay delivered second-hand to Barron? Am I working on assessments of documents by the RUC, the assessment of which was given to Barron but not the document?" All of these different facts just arrive in Barron's report without being separated out as to which are the most reliable facts from those which are least reliable and, therefore, you must ask how the assessment is structured.

Deputy P. Power: On the gravity of the allegations dealt with on page 5 of your submission, I have a difficulty with a number of aspects of your submission which were reinforced this morning. There are a lot of assertions in your presentation which you claim are in the Barron report but which, from my reading of it, are not there. One of them - you mentioned it on at least 20 occasions this morning; it is a cornerstone of your submission - is that the cumulative effect is that the allegations have now been shown by Judge Barron to have a foundation, or to have substance, to use your words. I am not certain whether the report goes as far as that. I refer you to his conclusions on page 287, paragraph 7, where he says: "The possibility of the involvement of such army or police officers was covered-up at a higher level cannot be ruled out; but it is unlikely that any such decision would ever have been committed to writing." Paragraph 8 reads:

There is no evidence that any branch of the security forces knew in advance that the bombings were about to take place ... If they did know, it is unlikely that there would be any official records. Such knowledge would not have been written down.
Paragraph 10 which relates to the conclusions issue reads:

But any such conclusion would require very cogent evidence. No such evidence is in the possession of the inquiry. There remains a deep suspicion ... but it cannot be put further than that.

The next paragraph relates to the assistance by the security forces:

Ultimately, a finding that there was collusion between the perpetrators and the authorities in Northern Ireland is a matter of inference. On some occasions an inference is irresistible or can be drawn as a matter of probability. Here, it is the view of the inquiry that the inference is not sufficiently strong. It does not follow even as a matter of probability. Unless further information comes to hand, such involvement must remain a suspicion. It is not proven.

Yet in your submission which you reinforced on at least a dozen occasions today you say these allegation are now shown by Judge Barron to have a foundation. Will you clarify or elaborate on this? I suggest to you that the report does not go that far. Your whole submission hangs, or is based, on this cornerstone that there is a foundation to these allegations.

Mr. Ó Dúlacháin: First, the body of the report has to be regarded in its totality. What we are not really concerned with is whether Barron's conclusions of the material he has discovered are right or wrong in that sense. What we are concerned with is looking at what Barron has uncovered and advancing our case that it creates an allegation that has substance.

I refer to the assertion that there is no evidence that any branch of the security forces knew in advance that the bombings were about to take place. If one takes that statement, in the section dealing with Colin Wallace, he firmly states that he had a belief that that information would have been available to security forces. Second, when one looks at the pattern of intelligence gathered in Portadown after the bombings, in the sense that the RUC branch in Portadown is commenting on discussions in UDA clubs and other such places, it is clear there was a flow of information back and forth. It is also clear that the element of the security forces was involved, and that is confirmed effectively by the intelligence of the Northern Ireland Office itself. Dr. Reid writes that they have 92 or 93 reports linking Billy Hanna and Robin Jackson to it.

Deputy P. Power: May I interrupt, Chairman? The Barron report does not state anywhere that there is substance or foundation to that allegation. It does not use those words. However, Mr. Ó Dúlacháin's entire submission this morning has been based on that single point. He said that Mr. Justice Barron has made a substantive case for a judicial inquiry, which implies that he argues for that throughout his report or in his conclusions. At no point in his conclusions, or anywhere in the report, did I see Mr. Justice Barron make a substantive case for an inquiry. That is Mr. Ó Dúlacháin's statement. Can he reply to those specific questions?

Mr. Ó Dúlacháin: First, it was explicit in Barron's terms of reference that the question of a further inquiry would be left to the committee, and it was not that he was to make a recommendation; neither was it explicit in his terms of reference that he was to phrase his findings in the phraseology that I have used, which is whether he provides substance for the allegations. They are our words and we used them deliberately because they are the words that have driven the process from its inception, namely, whether there is substance to the allegations. In so far as Barron attempts to write a conclusion chapter, and write it in the sense or style that this is the end that has been achieved through this process, we say that that is not the relevant exercise. The exercise is to look back at the report and ask oneself - from the body of the report - whether one sees substance to the allegations, not whether Barron saw that. The question is whether the content of the Barron report produces the substance to the allegations, not whether Barron specifically arrives at that by way of his conclusions.

Deputy P. Power: At the bottom of page three of Friday's submission, Justice for the Forgotten poses what it calls "the essential question", which, I presume, is the essential question for this committee to address: "Has the Barron commission achieved as much as could be expected from a tribunal of inquiry, without having to go the road of such a tribunal?" Am I correct in saying that the group is asking the committee to pose and answer that question? Yes or no will do on that particular point.

Mr. Ó Dúlacháin: Yes.

Deputy P. Power: Okay. The point on which I would like Mr. Ó Dúlacháin to elaborate is whether that premise - the basic premise of the submission - is incorrect, or if the committee does not accept that as the correct premise on which to examine and consider the report? What if the real test and essential question for the committee should be in accordance with its terms of reference? How would a tribunal of inquiry succeed definitively in ascertaining the precise truth of the matter, assuming that it is accepted that the Barron report does not do this? What if the committee says that is the real test? Where would the submission be then?

Mr. Ó Dúlacháin: It would be akin to a number of years ago having Ray Burke before the committee and asking him why there should be a planning inquiry. It is a futile exercise to try to look forward and ask whether a tribunal of inquiry will reach its end. The question that one must ask is whether one should travel the road. If, at the outset, one becomes defeatist, adopting the standard that one must prove that there must be a product or else one will not go there, one would never establish any tribunal of inquiry.

Deputy P. Power: I have two more questions. I hasten to add that we do not have that defeatist attitude. In fact, we have no attitude at all; we come to the matter without any preconceptions. On page 7 of the submission, Mr. Ó Dúlacháin makes a very strong case. He says that the committee's ability adequately to consider whether the report establishes the truth - if, indeed, that could ever be established at this remove - is impeded, if not fatally compromised, by a number of facts which he then goes on to summarise. These include the absence of the primary material which Mr. Justice Barron had before him, the non-production of State papers, receipt of limited and selective disclosures from the RUC, very limited information from the British Government and reliance on undisclosed sources. If this compromised Mr. Justice Barron and would compromise the committee, Mr. Ó Dúlacháin seems to almost to jump to the conclusion that a public inquiry would not be so compromised. How can we make such a leap?

Chairman: This is getting into module 5.

Deputy P. Power: He addresses it in his submission, Chairman.

Chairman: I realise that and understand from where the member is coming.

Deputy P. Power: I will put it another way. Mr. Ó Dúlacháin was trying to assess the Barron report. What else would some other investigative method achieve? Would it not come up against the same brick walls which he has set out in his submission?

Mr. Ó Dúlacháin: No. First, let the member put himself in the situation of representing the relatives as we do. No matter what standing or integrity any individual, judicial or non-judicial, has, in a case involving so many murders, one would absolutely insist, as a party representing someone affected by those bombings, to have access to the primary material. One would simply not be happy that one is discharging one's duty to one's client to walk away at the end of an inquiry process without, at the very minimum, having been able to access the primary material which that process itself had available to it. One could not and would not fly blind. A public process would, first of all, meet the first criterion, since one would have the material before one.
The second issue is the non-production of papers. In so far as papers do not appear, at least every effort would be made, and those who had custody of those papers could be questioned in public and a trail followed. The modus operandi would be different. It would be confrontational, testing and teasing. The extent to which one gets disclosure or assistance from other agencies can affect any process of inquiry, but it does not rule it out. One would not be happy to rely on a report that refers to undisclosed sources. One would want the final assessment to be based on sources who are willing to disclose who they were and what they were saying, and one would want to participate in item G.

Deputy P. Power: Let us turn to Mr. Ó Dúlacháin's submission today, which we have not had a great chance to assess. In the first paragraph on page 9, you state:
In relation to the allegations made by John Weir in 1999 the Barron Report at page 162 states "The Inquiry agrees with the view of An Garda Síochána that Weir's allegations regarding the Dublin & Monaghan Bombings must be treated with the utmost seriousness".

Mr. Ó Dúlacháin went on to say that if there was ever a case for a further judicial inquiry, it is that.

I ask Mr. Ó Dúlacháin to agree that he is missing the entire point of that passage of the report, which is that Mr. Justice Barron does not make the case there, or anywhere in the report, for a public inquiry. He does not make that case in the last paragraph on page 162. If one goes back to page 160, Mr. Justice Barron states, under the heading of assessment, that the assessment of the credibility of a witness requires the answers to several questions and he analyses all of that aspect. He then comes to the conclusion that because of that analysis, Mr. Weir's evidence to him must be treated with the utmost seriousness. He does not go on to say, as Mr. Ó Dúlacháin has suggested to us today, that this is a reason for a judicial inquiry. Does Mr. Ó Dúlacháin agree with me in that regard?

Mr. Ó Dúlacháin: He does not say that about that or about anything else. He does not endorse an inquiry, nor does he not endorse one.

Deputy P. Power: In his submission, Mr. Ó Dúlacháin stated that this-----

Mr. Ó Dúlacháin: To us.

Deputy P. Power: -----was the basis on which he was arguing.

Chairman, there is one question I must ask or I will not forgive myself. It appears to me, and this came out in the first day of hearings last Tuesday, that one of the huge unresolved questions in all of this process is the missing files in the Department of Justice, Equality and Law Reform. Mr. Justice Barron said that, first, he got full co-operation from the Garda and access to its files in their totality, subject to the brief point which he made about that earlier; second, that Army intelligence gave full and proper disclosure of all its documents; and, third, that Yorkshire Television got full access to all the Garda files.

Mr. Ó Dúlacháin is posing the question "Why?", but the big issue is why the files in the Department of Justice, Equality and Law Reform have not been available and where are they? Yet Mr. Ó Dúlacháin made the briefest of references to it in his submission this morning. It appears to me - I am not making any judgment about this - that if a public inquiry might help with one matter, it certainly might help ascertain that particular aspect of the whole matter. However, Mr. Ó Dúlacháin did not seem to go down that road today.

Mr. Ó Dúlacháin: There are matters to be addressed in module 5.

Deputy P. Power: The questions I have put to Mr. Ó Dúlacháin, I repeat again, should not be taken in any way to suggest that I am rejecting his submission. They are not. They are to test his submission.

Mr. Ó Dúlacháin: I emphasised that not alone should the files in the Department of Justice, Equality and Law Reform contain material from 1974, but there is reason to believe that there was material generated in 1975. I just want to mention that to emphasise the importance of those files.

Chairman: I have given great latitude in regard to module 5 but I ask all the members, as far as possible, to stick to module 2, which is the issues in the report and whether the report addresses them all.

Deputy P. McGrath: I too welcome Mr. Cormac Ó Dúlacháin and his team, particularly the representatives from the Justice for the Forgotten group. In his introduction, Mr. Ó Dúlacháin spoke of inquiries set up in other jurisdictions, particularly the Bloody Sunday inquiry. He stated that it went through a similar process in that the material was reviewed and assessed and a decision was then made. Regarding the decisions finally made, for example, on the Bloody Sunday inquiry, was it a committee such as this which made the assessment or was it some other body? If so, what was it?

Mr. Ó Dúlacháin: My understanding of the Bloody Sunday inquiry is that the assessment was conducted through the Department of Foreign Affairs, that a formal Government assessment was done. Various parties fed into that assessment and Professor Dermot Walsh of the Centre for Criminal Studies at the University of Limerick was centrally involved in assessing material from the original Widgery inquiry. I understand that various material on an assessment of statements of the time, Eyewitness Bloody Sunday, was submitted and that there were very detailed submissions from Madden and Finucane, solicitors in Belfast. All of this and other material was fed into the Department of Foreign Affairs. Ultimately, the material was collected and an internal assessment was done in the Department of Foreign Affairs.

Deputy P. McGrath: Therefore, it was not done by a political group or committees such as this, but by professional civil servants.

Mr. Ó Dúlacháin: Diplomats.

Deputy P. McGrath: It was done by diplomats and then the final decision was taken by Governments.

Mr. Ó Dúlacháin: That is correct.

Deputy P. McGrath: Was Mr. Ó Dúlacháin alluding to this when he went on to say that the committee had a unique role?

Mr. Ó Dúlacháin: It is, in that it is conducting it in this manner and has been asked to express its view.

Deputy P. McGrath: That is unusual on an international stage.

Mr. Ó Dúlacháin: It is.

Deputy P. McGrath: Mr. Ó Dúlacháin spoke about the nature of Mr. Justice Barron's inquiry, originally Mr. Justice Hamilton's inquiry, and its being severely limited in what it could do. What was Mr. Ó Dúlacháin's reaction to the establishment of the original Hamilton inquiry? Did he welcome it? Was he happy with the terms of reference? Had he any comments on those terms of reference?

Mr. Ó Dúlacháin: It was complicated, but if I might set out the key features. We appeared in front of this committee and made submissions to, and entered into discussions with, the Department of the Taoiseach. We said that we would not be happy with a private inquiry, that it had to lead to a public element, of which the first element was obviously the publication of a report, the second issue was public scrutiny of that report, and the third element was a consideration of whether, at the end of that, there should then be a public inquiry. On that, we had discussions with the Opposition parties, Ruairí Quinn fully recommended this process, John Bruton said that he would not go against the process, and there were communications with the then chairman of this committee. There were considerable discussions and negotiations, leading up to Justice for the Forgotten agreeing to enter a process of which the start was an assessment by Mr. Justice Hamilton and, later, Mr. Justice Barron.

Deputy P. McGrath: Mr. Ó Dúlacháin welcomed the establishment of the inquiry and endorsed the terms of reference.

Mr. Ó Dúlacháin: We endorsed the terms of reference and the process leading to this committee.

Deputy P. McGrath: If Mr. Ó Dúlacháin saw it as leading to something else, did he look for that to be included in the terms of reference?

Mr. Ó Dúlacháin: The terms of reference referred to the committee considering - and this was pre-Abbeylara - whether it would conduct an inquiry or whether it would recommend a public tribunal of inquiry. These points were in the terms of reference, in the terms of the process. They were there in a letter from the Taoiseach dated 17 December 1999. That letter was signed by the Taoiseach, the Tánaiste, and cross letters from the leader of the Labour Party, Ruairí Quinn, and from John Bruton.

Deputy P. McGrath: Therefore, Mr. Ó Dúlacháin was led to believe at that stage that this was just one step along the road to a full public inquiry - that was his and his group's understanding at the time.

Mr. Ó Dúlacháin: We were led to believe that it was the first step in a process that would at least have two steps and might have a third, the first step being a commission of inquiry, the second step being first-stage hearings before this committee, and the third step being the committee going into an inquiry itself, recommending a tribunal of inquiry or recommending that there should be no third stage.

Deputy P. McGrath: In Mr. Ó Dúlacháin's normal work as a barrister, before he goes into a case, he assesses the probability of success. Can he tell us whether he was 70% or 80% confident that the Hamilton inquiry, as it was then, would lead to a full public inquiry?

Mr. Ó Dúlacháin: If Deputy McGrath is asking for a personal view, yes. We had been intensely involved for five years, and our own view was that it would.

Deputy P. McGrath: In his discussion with us Mr. Ó Dúlacháin talked about the informal nature of the Barron inquiry and the difficulties, for this committee in particular, in knowing exactly what was seen and in assessing all that material. He went on to note - and I do not want to call them criticisms - a huge number of items within the Barron report which he would seriously question. He took very differing views to Mr. Justice Barron on some issues. For example, the Barron report almost dismisses the programme "The Hidden Hand - the Forgotten Massacre" as not having much substance, yet Mr. Ó Dúlacháin puts great store on it. In his presentation spoke strongly about some aspects of it. He also put great store on the evidence of Wallace and Holroyd, yet the Barron report failed to draw conclusions in regard to either of those gentlemen. Would Mr. Ó Dúlacháin like to comment on that?

Mr. Ó Dúlacháin: In regard to the Yorkshire television programme, Mr. Justice Barron, with the benefit of additional material, drew different conclusions in certain circumstances in indicating that, factually, Yorkshire Television was wrong in a number of other respects. However, in regard to whether there was an adequate Garda investigation, the whole thrust of this report is that there was not, and that is what the Yorkshire Television programme was about. Was there co-operation from Northern Ireland authorities or is there a question mark about it? The Barron report shows that there was not. Mr. Justice Barron certainly disagrees with some of the detail, but in terms of the message and thrust of the programme, his report does not destroy the programme in any respect.

Deputy P. McGrath: What about Wallace and Holroyd?

Mr. Ó Dúlachain: I think Mr. Justice Barron accepts Wallace's evidence, which is supported by further material and contemporaneous material that comes to light through the Barron report. The Northern Ireland Office-----

Deputy P. McGrath: That is not his conclusion though.

Mr. Ó Dúlacháin: What are his conclusions about Wallace?

Deputy P. McGrath: I am asking Mr. Ó Dúlacháin that.

Mr. Ó Dúlacháin: The Deputy is saying that there is a conclusion about Wallace.

Deputy P. McGrath: Yes.

Mr. Ó Dúlacháin: What is that conclusion?

Deputy P. McGrath: He did not draw any conclusions from what Wallace and Holroyd had to say. He merely put in into the report.

Mr. Ó Dúlacháin: Exactly.

Deputy P. McGrath: Mr. Ó Dúlacháin went on to draw conclusions from it.

Mr. Ó Dúlacháin: Yes, exactly. Barron has put the information there.

Deputy P. McGrath: Yes, but he did not see enough evidence to draw conclusions from it, yet Mr. Ó Dúlacháin did.

Mr. Ó Dúlacháin: I am not sure that is a fair assessment-----

Deputy P. McGrath: Is that not a criticism of the report?

Mr. Ó Dúlacháin: We could get involved in criticisms of the report but we are trying to look at what is in the report and what questions arise from it. We are saying that the information that Wallace has to deliver is there, and whether Mr. Justice Barron draws conclusions from it is not the issue. The issue is whether it supports an allegation that warrants a serious investigation. When one sees the information that emerges from other sources within the report, Wallace is strengthened by the report.

Deputy P. McGrath: If I can move to a different issue, concerning the whole business of the follow up on the bombings and the nature of the investigation that was carried out. Mr. Ó Dúlacháin dwelt at length on that. He questioned whether, in 1974, a policy decision was taken by the Government in regard to whether gardaí should sit in on interviews in Northern Ireland and so on. He then referred to the periods 1993-94 and 1999-2004 and pointed to the same difficulty, particularly in the 1993-94 period, that there did not seem to be any reasons the Garda should or should not take part in the interviews. I would like you to elaborate a little on that. Can you point to any part of the Barron report or did you find evidence to suggest that gardaí should not sit in on interviews? Is it a Garda protocol as distinct from a Government policy, or have you found any evidence to suggest that there might have been a Government policy that the gardaí would not sit in on interviews in Northern Ireland?

Mr. Ó Dúlacháin: It is a complete state of confusion.

Deputy P. McGrath: Where do you think those kind of decisions were taken? Where a superintendent got a telephone call to say, "We have a suspect, do some of your people want to sit in?", have you evidence of where a policy decision was taken on whether detective garda X, who was working on that case, should sit in on the interview? Was it taken at superintendent level? Was it passed to Garda headquarters in the Phoenix Park or to the Department of Justice for a response?

Mr. Ó Dúlacháin: I would love to be able to go back to the relatives to give them an answer to that question. The only way we would ever get an answer to that question is through a public hearing in which gardaí can be asked what happened - whether they asked, who they asked, what they asked and what was the response. We do not have that. The process and procedure does not emerge at all from the Barron report.

Deputy P. McGrath: So are you suggesting that we would need to talk to gardaí, not just with evidence from 1974, but from 1993-94 and that, if we are to be consistent in finding out what the protocol was and how it worked, we would be obliged to talk to those gardaí as well.

Mr. Ó Dúlacháin: An inquiry would.

Deputy P. McGrath: Do you mean that Mr. Justice Barron should have done so? Is that what you are saying?

Mr. Ó Dúlacháin: No, I am saying a public inquiry-----

Deputy P. McGrath: A full public inquiry.

Mr. Ó Dúlacháin: -----would hear from people involved in 2000, in the early 1990s, in late 1979 and in the early 1970s as to what were the protocols, who made the decisions and whether requests were made.

Deputy P. McGrath: There seemed to be the same response from the gardaí on each of those occasions, did there not?

Mr. Ó Dúlacháin: I am not sure that any coherent response from the gardaí emerges from the Barron report.

Deputy P. McGrath: You do not see it as our function to look at that.

Mr. Ó Dúlacháin: It is your function to look at it and to say that it needs to be addressed, and the proper way to address that is by way of a public inquiry.

Chairman: Thank you very much. We will break until just before 2 p.m.

Sitting suspended at 1.05 p.m. and resumed at 2 p.m.