Public Hearings on the Barron Report.

Good afternoon, ladies and gentlemen. I welcome you all to the resumed hearings in the consideration by the Sub-Committee of the Barron Report of the report of the independent commission of inquiry on the Dublin and Monaghan bombings of 1974. This afternoon the sub-committee is holding the last of its public hearings on module five of its programme of work. The sub-committee has heard from a large number of invitees, including survivors of the 1974 atrocities and from relatives of the victims. The sub-committee takes this opportunity to sincerely thank all those invitees, particularly the victims and the relatives of the victims and their legal representatives, for their attendance at the hearings. The sub-committee will adjourn today in order to deliberate further on all the matters raised during the course of the hearings and in order to arrive at a report for presentation to the joint committee which will lay its report before the Houses of the Oireachtas on or before 10 March 2004.

The sub-committee will hear contributions today from Mr. Antonio Bueno QC, and Mr. Michael Collins SC. They have prepared a joint opinion for the sub-committee concerning certain aspects of the seeking of documentation from states and others jurisdictions. I welcome Mr. Bueno and Mr. Collins.

Members of the sub-committee have been circulated with the opinion but have received it only very lately and because of Dáil and other commitments have not had the opportunity to read the document. I will invite you to go through the opinion in detail for the benefit of the members before they ask questions of you.

Members of the sub-committee enjoy parliamentary privilege. That same privilege does not extend to others. I invite you to make an opening statement on the opinion.

Mr. Michael Collins

Mr. Antonio Bueno is an Irish barrister as well as a member of the English Bar. He took primary responsibility for the end of the opinion dealing with the feasibility of the tribunals of inquiry. I looked at the Convention of Human Rights aspect under Article 2. We will split the submission between us, respectively.

Mr. Antonio Bueno

What Mr. Collins did not mention is that he is also a member of the English Bar. What the sub-committee has before it, in the context of this case, is an unusual example of cross-Border co-operation.

Cross-fertilisation is what it is called.

Mr. Bueno

I wish to refer to our joint opinion and explain the section Tribunals of Inquiry Evidence Act 1921. We have both read with interest the submissions by Mr. Michael Mansfield and Mr. Eoin McGonagle. The focus of their submissions appears to have been that obtaining evidence as to the alleged activities of the security services and the RUC has been the subject of public interest immunity. In other words, it has been the subject of a claim by the Secretary of State for Northern Ireland to withhold this documentation on the basis that to disclose it would be injurious to the public interest and would also endanger life.

What both these eminent lawyers spoke about is a legal mechanism whereby orders of court can be made which would require the relevant authorities to produce that documentation. While not suggesting that they have dealt with it on a superficial basis or without a proper degree of thought, we have to say that the legal route, whereby orders would be obtained requiring the production of those documents and whether those orders would be complied with, is far from straightforward.

To begin, the sub-committee will be familiar with the Tribunals of Inquiry Evidence Act 1921, as a number of inquiries have been established under this Act in this jurisdiction. There is a distinction between a tribunal of inquirysimpliciter and one appointed under this Act. If a tribunal of inquiry is established under this Act and the instrument appointing it recites that it is to have the powers given by the Act, then it has very wide-ranging powers, ordinarily enjoyed by a High Court judge. This legislation is common to both the United Kingdom and Ireland. It is an accident of history but when this legislation was passed in 1921, it was UK legislation that extended to this country. When Ireland obtained its independence in 1922, this legislation survived. It has been determined judicially that it is not in conflict with either the 1922 or 1937 Constitutions. It is, therefore, in full force and effect. There is a quirk because this legislation is domestic-based. If orders are made by the tribunal seeking the assistance of other tribunals, it depends on the powers of the overseas courts to make orders on the back of those requests for judicial assistance.

In paragraph nine of our opinion, we state that what is urged is the establishment of a tribunal of inquiry pursuant to resolutions of both Houses of this Parliament to which the 1921 Act will apply. The legislation has been amended but we need not trouble the sub-committee with the respects in which it has been amended. Section 1(1) of the Act states that a tribunal, established in pursuance of such resolutions and to which the 1921 Act is specifically applied by the appointing instrument, shall, unless the resolution otherwise directs - these are the critical words - have all such powers, rights and privileges as are vested in the High Court by the application of an action in respect of, etc., and then, subject to rules of court, the issuing of a commission or a request to examine witnesses abroad.

Pausing there, a commission is the appointment of a commissioner who is requested to travel to another jurisdiction and to take evidence on oath - either evidence from witnesses orally or in respect of the production of documents. It is a quasi-judicial body appointed for a specific purpose. To enable it o fulfil its function, it is necessary to have co-operation from those who are going to be examined in the other jurisdiction.

Perhaps Mr. Bueno could reference the points in the text. It would be helpful to us in following it.

Mr. Bueno

Yes, I am sorry. I have started on paragraph nine and I have just gone over to the top of page five. The second limb of this is the issuing of a letter of request to examine witnesses abroad. We enlarge on that later but it is essentially as follows: an application is made to the tribunal and if the tribunal considers that it is necessary or expedient to seek evidence from witnesses abroad or obtain documents from abroad, then a letter of request will be issued by the tribunal which is then transmitted to the foreign court with a request that an order is made that evidence be taken under compulsion of an order of that court in compliance with that request.

The 1921 statute, as I have already pointed out, was passed before Ireland got its Constitution, therefore, it continues in full force and effect in this jurisdiction - this is paragraph ten. Going on to paragraph 11, under the heading of evidence gathering powers of a tribunal to which the 1921 Act is applied, we have observed here - this is our understanding having read the transcripts of what took place on 17 February this year - that Mr. McGonagle and Mr. Michael Mansfield have contended before this sub-committee that a letter or letters of request addressed to the High Court, and perhaps a Northern Ireland court, are likely to produce valuable material and information, and that by such means important witnesses can be ordered to attend for examination on oath. They rely on the fact that the English High Court has previously accepted and given effect to a letter of request addressed to it by the McCracken tribunal as a result of which important documents were produced and much valuable information was provided by witnesses who were examined on its behalf in London but, as I have already indicated, the situation is not as straightforward as appears to have been suggested.

The jurisdiction of the English High Court - I think the position is identical in Northern Ireland to which the 1921 Act certainly does apply - to consider a request from a foreign court or a tribunal and to make an order for persons within its jurisdiction to assist a foreign court or tribunal by giving oral or documentary evidence for purposes of proceedings before it is statutory. In other words, in England and Northern Ireland it derives from legislation known as the Evidence (Proceedings and Other Jurisdictions) Act 1975. There was a convention, known as the Hague Convention, entered into by various countries, including the United Kingdom, regarding the provisions for the taking of evidence abroad civil and commercial matters. It is this legislation with the applicable rules of court which provide the relevant law and procedure.

An English court, which receives a request for judicial assistance from another court or a tribunal, obviously takes privilege in its pleasure to assist, if it can. However, its ability to respond to a request for judicial assistance is entirely dependent upon the domestic legislation. It cannot do it because it wants to. It can only do so if it has the power to do so. That power is conferred by statute and the provisions of the relevant legislation is set out in section 1 of the 1975 Act.

This brings us to another anomaly. The 1921 Act predated this by some 50 years. One wonders what is the purpose of imbuing a tribunal established under the provisions of the 1921 Act with the power to issue a commission for the taking of evidence or to issue letters rogatory unless some sort of effect can be given to it. Certainly, when that legislation was passed there was other legislation in place which dealt with assistance rendered to foreign courts by obtaining evidence, but it was all replaced by this legislation.

We have an anomalous situation in which a tribunal of inquiry is not an adjudicatory body but an investigative body. The Hague Convention is ordinarily thought of as covering only requests between courts or tribunals which had the characteristics of a court: in other words, they could determine rights and adjudicate on issues of fact. The problems we had in the Cayman Islands, which I will explain later, were that the tribunal of inquiry in this jurisdiction, when analysed and diagnosed, did not have the power to determine facts or substantive rights. It was a tribunal of inquiry and no more.

The argument we deployed in the Cayman Islands was rather different from that deployed in this country. Perhaps I can explain what happened. The McCracken tribunal was established in circumstances which are now very well known to the sub-committee. In the course of its inquiries it was necessary to investigate certain payments of a sensitive nature that had been made through banks in London and the Cayman Islands. My colleague, Michael Collins, was one of the counsel to the McCracken tribunal and was at the cutting edge of all the inquiries that were made.

The tribunal was anxious to obtain evidence from bank officials in London who had dealings at the relevant time with certain transactions and also to produce certain bank records. Therefore, the McCracken tribunal issued a letter of request, directed to the High Court in London, seeking the examination of witnesses and the production of certain bank records. The argument put to the English High Court was a simple one: I will find the reference for the committee. I am jumping ahead a little.

Could Mr. Bueno mention the paragraphs to which he is referring as he goes along?

Mr. Bueno

Yes; I am sorry.

We have not had the opportunity of reading this brief.

Mr. Bueno

I apologise. As stated in paragraph 18, the argument was simply this. The contention was that the jurisdiction of the English High Court to make an order giving effect to the letter of request was to be found in the 1975 Act, that is, the Act which gave effect to the Hague Convention. The 1921 Act was common to both jurisdictions. When the 1921 Act was enacted, conferring upon appropriately appointed tribunals the power to issue a commission or a request to examine witnesses abroad, Parliament intended and expected the foreign courts to whom such requests were made to provide the assistance sought. It was therefore inconceivable that the definition of a foreign requesting tribunal, which expression appeared in section 1A of the 1975 Act, was intended to exclude a tribunal to which the 1921 Act was applied.

The 1975 Act was applied to the Cayman Islands. I am jumping forward slightly. In England, the High Court master accepted that argument without demur. In effect, what he accepted was that in a special situation in which a letter of request was issued by a jurisdiction which had legislation which mirrored the English legislation, it would be absurd not to interpret the word "tribunal" in the 1975 Act as including a tribunal which had been established in accordance with the provisions of the 1921 Act. In other words, the English court accepted that it had power to give effect to a letter of request.

Pausing there, it is very important to understand the procedure that was followed. Under the applicable rules of court, if a letter of request is presented to that court with a request that orders be made to secure the attendance of witnesses for examination and the production of documents, that order, in the first instance, is made ex parte. Once the order is made, if it is made, the party or parties affected by it have the right to go to the court and apply to set it aside. That did not happen in London, presumably on the basis that the bank in London accepted that the order was properly made, and it complied with it fully.

In the Cayman Islands, these arguments were deployed, and the reasons for the decision in that case, which are of a rather technical nature, are explained in this paper. The decision is described in paragraph 20 of the Cayman court. We summarise what the judge found by citing from a passage of his judgment. He held, after reviewing the various authorities, that they clearly established that a tribunal such as that in question, although endowed with the powers under the 1921 Act, is not a court or tribunal for the purposes of section 1A of the Schedule of the 1971 Order. That was the equivalent of the 1975 Act in the Cayman Islands. The mandate itself undoubtedly suggested that an inquisitorial and not an adjudicatory body had been established. The judge said that on the evidence and the authorities he had been satisfied that the tribunal in question was not similar to a court, either according to the laws of Ireland or of the Cayman Islands.

We believe that we have reasonable grounds, if an application were made by a tribunal of inquiry in this country, for getting the English High Court again to accept what the senior master accepted in regard to the McCracken tribunal. The arguments which were deployed in the Cayman Islands were not deployed in London. It was not necessary to do so. The simple argument was put to the judge and he made the order. All of these arguments were not deployed in the Cayman Islands. We think it unthinkable that an English High Court judge would not make an order giving effect to a letter of request issued by a tribunal of inquiry established in this country under the 1921 Act. An English tribunal would expect orders to be made in respect of letters of request addressed to the Irish High Court simply because the legislation in this jurisdiction mirrors our own.

However, we have to sound a note of caution. There is a possibility that an English court, if the point were taken, could come to the same conclusion as the grand court in the Cayman Islands. We think it unlikely but the possibility exists. There are further legal difficulties, which we describe in paragraph 24 of our opinion, where we refer to the fact that the 1975 Act was passed specifically to give effect to the Hague Convention. Lord Diplock, a very distinguished jurist, said in the House of Lords case of Westinghouse that the new statute was passed to give effect to a new international convention. If that very restrictive view of the 1975 Act is formed there could be difficulties in persuading an English court that a tribunal established in this country under the provisions of the 1921 Act was a tribunal for the purposes of the 1975 Act. As I said, it would be very odd indeed if that conclusion was arrived at because it would, in effect, be an acknowledgement by the English High Court that UK tribunals of inquiry would not be able to issue letters of request addressed to the Irish court. I do not see that happening but the possibility exists.

On the basis, therefore, that we think there are reasonable grounds for supposing that an English court would accept the jurisdiction and give effect to a letter of request issued by a tribunal of inquiry established in this jurisdiction, it is then necessary to look briefly at the procedure and practice in connection with the making of an application to the High Court to give effect to a letter of request. I am referring to paragraph 26 of the advice.

The letter of request is formulated and it must be done with precision as it cannot be a fishing expedition and simply ask for all the documents in the possession of such and such a Department. It is necessary for the tribunal to be focused and specific in its request for information and also similarly specific with regard to the witnesses it wishes to examine. Providing, therefore, it is not a scatter-gun approach, that would certainly be in accordance with the established practice and procedure for making requests of this kind.

The order would be made in the first instance, if it is made,ex parte, that is, without notice. If the other side do not apply to set aside the order, then an examiner is appointed by the court to conduct the relevant examinations and to require the witnesses to attend before it for the purposes of producing documents. Sometimes these things take time but Mr. Collins’ recollection is probably better than mine. Normally, requests of this kind are transmitted through diplomatic channels but I think it was done in the McCracken tribunal less formally when I understand the request was simply delivered to the Master of the High Court.

Mr. Collins

We sent it directly through the registrar of the High Court to the registrar of the court in England and we bypassed the Department of Foreign Affairs. When I come to speak I will add a footnote to that.

Mr. Bueno

In the first instance, the court then decides whetherprima facie the order is one which is made. Assuming that no application is made to set aside the order, the next step is whether the evidence which is required from the witnesses will in fact be given. It is at that stage that claims for privilege and so forth will be raised. The situation we are at present addressing is a very unusual one; I have never come across this before and I doubt whether many, if any, lawyers in England have come across this precise situation. I am not aware of any tribunal of inquiry established in Ireland having sought judicial assistance in relation to the type of matter with which the tribunal which is envisaged or the possibility of which is envisaged would inquire into. In paragraph 28, we advise that the difficulties or problems in making such a request will almost certainly lie in the fact that the relevant Departments of State will claim immunity from disclosure on the grounds of public interest.

Section 3 of the 1975 Act provides that a witness who has been ordered to give evidence will not be compelled to do so whether by producing documents or answering questions, if his doing so would be prejudicial to the security of the United Kingdom. What normally happens is that the Secretary of State will sign a certificate to the effect that it would be injurious to the public interest to produce that relevant document or to allow evidence to be given. Ordinarily, that certificate will be conclusive evidence of that fact. It is a slight curiosity that things have moved on a great deal since then, no doubt due to the impetus of the human rights legislation, and there is now a more relaxed approach taken to the whole concept of public interest immunity in the sense that it is no longer so arbitrary but there is now a structure for determining whether that sort of privilege can be properly invoked.

Although under that Act it is envisaged that there can be a refusal, as we deal with later in the next paragraph of the advice, we are now satisfied that a three stage procedure would be followed before the stage could be reached where it could be said it would be injurious to the public interest to produce documentation. There is a reference here - the last sentence of paragraph 28 - to an order not being made against any person in his capacity as an officer or servant of the crown. I do not know whether that would be relevant in this case, but if it were that particular problem could be addressed.

The objection to the production of documents in the context of public interest immunity is that to do so would cause substantial harm or real damage to the public interest. The current practice of the United Kingdom Government is set out in a report published in December 1996. This requires a three step approach in considering whether to make a public interest immunity claim for a document or piece of information. We are now looking at a situation where a letter of request has been issued, an order has been made by the High Court in London or Northern Ireland requiring, whether it is the Royal Ulster Constabulary or an identifiable department of the Northern Ireland security services or, indeed, the UK security services. We are presupposing that an order has been made and the focus of the order is the documentation which Mr. Justice Barron unsuccessfully sought from the Secretary of State for Northern Ireland Secretary.

The sub-committee is aware of the letters written by the then Secretary of State, Dr. Reid, in which he summarised, apparently, the trawl which had taken place through 68,000 files. The information was passed over under conditions of confidentiality. Complaints of a significant nature were made by Mr. Justice Barron, who, if I have understood his report correctly, made it clear that his investigation was hampered by the fact that original documents had not been produced. In fact, his criticisms went a good deal further. I am assuming at this stage that what we have is an order made against the relevant department that this type of material should be produced.

The approach which would be adopted in both civil and criminal proceedings and which would be adopted in this case would be as follows. First, a decision would be taken as to whether there is a duty to disclose the document at all. Broadly speaking, the question in civil and criminal cases would be whether the document is relevant or potentially relevant to an issue in the case. If there is no duty to disclose the document, questions of public interest immunity do not arise. Of course, this is formulated in the context of litigation, either a civil or criminal case. However, in principle, it would apply in the same way to the deliberations of a tribunal, as I shall explain in the context of the Bloody Sunday inquiry.

The second stage is if there is a duty to disclose, a decision must be taken on whether the document attracts public interest immunity. Existing practice has been to determine this question by asking whether the document attracts this immunity because of its contents or because it falls into a class of documents which attract immunity. The Government regards the distinction as no longer helpful and it proposes to abandon it and adopt a new approach which applies the fundamental test of whether the maker of the certificate believes that disclosure would cause real damage, that is, of course, damage to the public interest.

Third, this step applies to some claims, including those made by Ministers. If a document attracts PII, the decision maker will consider, in so far as he can judge it, the strength of the public interest in disclosing the document. This will require an assessment of the issues in the case. The decision maker performs what is described in this report as a balancing exercise, usually after taking advice from counsel or treasury counsel. If the balance appears to him to favour disclosure he is entitled to disclose the document. If the balance appears to go the other way or if the decision maker is uncertain, he will put a certificate to the court explaining his reasons for asserting PII and the court will then be invited to determine whether disclosure should be made. The threshold test, so called, to decide when public interest immunity can be asserted is whether disclosure would cause substantial harm or real damage. The expression is now being held to be synonymous.

I pause here to make another point. In the ordinary way, the question of whether public interest immunity should attach to any particular disclosure or category of evidence would be dealt with by the trial judge. The paramount matter the trial judge would consider is, of course, that, ultimately, there should be a fair trial. If confronted on the one hand with powerful considerations that, for example, the public interest may be adversely affected by the evidence being disclosed yet on the other hand, with the problem that if that evidence is not provided there could be an injustice to the defendant or the party in civil proceedings, it can be very difficult for him.

These cases are always resolved very much on a case by case basis. It is impossible to essay a precise system of rules or yardsticks. Every case has got to be decided on its own particular facts. However, the special characteristic is that the one person who is uniquely placed to make a determination of this kind is the trial judge. What happened - I digress from the script and am not pointing to any specific paragraph number - is that in the Bloody Sunday inquire, the Saville inquiry in Northern Ireland - an important issue arose as to whether or not certain soldiers who were required to give evidence should be required to disclose their identities. This was an issue which went to the Court of Appeal.

In its judgment, the Court of Appeal pointed out that the role of the tribunal was, in fact, purely investigatory and that, ultimately, it made its rulings. The matter went back to the Bloody Sunday inquiry and questions then arose in relation to evidence which was to be provided as to whether or not that should be protected by public interest immunity. The Bloody Sunday inquiry - Lord Saville and his colleagues - held that they had the jurisdiction to determine that precise issue. He and his colleagues made rulings on the PII issue.

I mention this because if the stage was reached in this country that the Irish Parliament was satisfied that there was a matter of sufficient importance and urgency to set up a tribunal of inquiry to which the 1921 Act applies, then one would have thought by parity of reasoning that the precisely the same considerations ought to apply in the United Kingdom in the Westminster Parliament. It is a very powerful thing to suggest that members of the Royal Ulster Constabulary and the security forces and services, whether in Northern Ireland or elsewhere, were involved in any way in these dreadful bombings which took place in 1974 and in their aftermath. One would have thought, looking at the matter dispassionately and sensibly, that if there was a threshold which required the intervention of the Irish Parliament by setting up a tribunal of inquiry that perhaps, the same considerations ought to impress the Westminster Parliament and it should also consider setting up a tribunal of the kind we are considering.

However, the difference between the two is that an English tribunal of inquiry would not have the legal problems we have identified. The Irish tribunal would have substantial difficulties - the ones we have identified - while the English tribunal would have none of these problems because it can, in the exercise of its powers, simply summon witnesses to give evidence before it. A tribunal of inquiry established under the 1921 Act has all the powers of a High Court judge, whether it is in England, the United Kingdom, or Ireland. The difference between the two tribunals would be that the English tribunal of inquiry would simply have the power to summon witnesses before it and it could determine questions of public interest immunity. It would be in a far better position to do so than the High Court when it comes to evidence sought by a tribunal established in this country.

The English High Court would not be seized of the matter in the same way as a tribunal in this country would be seized. It would not have its antennae out; it would not have a degree of knowledge and understanding of the nature of the inquiries to be undertaken. It would therefore not be in the same position to evaluate the necessity and importance of the evidence sought. As I have said, ultimately, there is a balancing exercise, and if the paramount commodity sought is the truth, it seems that the tribunal established in England would be in a far better position than one established in this country.

That is an aside, because I recall that during the course of the submissions made to the committee by Mr. Mansfield and Mr. McGonigal a member of the committee specifically asked what objections there would be to the establishment of a tribunal of inquiry in England. The answers received were to the effect that this was the seat of the crime and that the investigations should therefore be initiated in this jurisdiction. With respect, I do not think the logic of that is something we would necessarily adopt, because ultimately, it may be - this is entirely a matter for the sub-committee - the main concern is the practicalities of setting up a tribunal of inquiry. It would be unfortunate if a tribunal was set up which did not have the evidence gathering powers of a tribunal set up in another jurisdiction, or, even worse, if it was found that the tribunal was unable to take the matter any further than Mr. Justice Barron has taken it. To set up a tribunal which turns out to be entirely cosmetic may be regarded as difficult to justify in the public interest, although that is a matter for the committee. We speak purely as lawyers; we are not in any way seeking to influence the deliberations of the committee. This is a factor which struck us as being of some importance.

We were asked to consider the probable reaction of the UK Government and the English courts and the prospect of success of obtaining any evidence from Northern Ireland or elsewhere in the UK in pursuing any letter of request issued by a tribunal in this country. The focus of a tribunal of inquiry will inevitably be on what is contained in the files of the Royal Ulster Constabulary - now the PSNI - and the security services in Northern Ireland, which the Barron inquiry unsuccessfully sought, as well as those of the British Government, which had expressed its commitment to treat all requests from the inquiry sympathetically. However, the measured and studied response set out in Dr. Reid's letters of 26 February and subsequent correspondence, asserting that disclosure could endanger life or national security, suggests that a sea change in the attitude of the UK Government will be necessary before the evidence required will be voluntarily disclosed.

We must also assume that much if not all the material required will be governed by the Official Secrets Act. Presumably Dr. Reid took careful advice before responding as he did. We must therefore infer that the same uncompromising position will be maintained if orders are made in pursuance of a letter of request. This is to some extent speculation, but we respectfully suggest this is a more realistic inference than that which Mr. McGonigal and Mr. Mansfield sought to draw. If my memory serves me faithfully, what was being urged upon the sub-committee was that if a tribunal of inquiry were established in this jurisdiction, the mere fact that letters of request were issued would persuade Dr. Reid of the error of his ways and that no doubt the very careful preparations which had preceded the summary of the material sent to the tribunal would somehow be overturned and there would be some sort of damascene revelation and wholesale disclosure of information. We have to assume, given the assurances that have been given at a very senior inter-governmental level, that Dr. Reid would not have taken the position he did unless he intended to stand by it.

We as lawyers can simply draw the inference that if a letter of request is issued, precisely the same position will be adopted and public interest immunity will be asserted. We have to think that, given what has been suggested here about there being an endangerment of life or national security, it would be extraordinarily difficult for an English court to go behind that. We cannot say with complete confidence that this is the position because we are in the realms of speculation. We do not know what is the material involved. The difficulty is that it will not be the tribunal itself adjudicating on this if we get to that point, but the English High Court. It may be something to be considered as to whether representations should not be made to the Westminster Government to take on the burden of a tribunal of inquiry if the necessary threshold is considered to have been reached.

We go on at paragraph 33 to suppose that further attempts would be made in advance of the setting up of a tribunal of inquiry, again to clarify the UK Government's position regarding disclosure. If, as we expect, the position remains as we have described, any tribunal of inquiry will be faced with formidable difficulties. Assuming that it can overcome the undoubted legal problems, as to which we are reasonably hopeful, there remain the very significant problems of overcoming the inevitable objections to disclosure. Although we lack the detailed knowledge of the material involved, we think it unlikely that the High Court would not uphold the claim to immunity from disclosure. In such an event the establishment of any tribunal of inquiry would turn out to be largely cosmetic, which would be a very unsatisfactory result.

Mr. Collins

I add one thing to what Tony Bueno has been saying in terms of the difficulties of getting evidence from the United Kingdom, particularly where one is looking for evidence from state officials or Crown officials of one sort. This is not in the opinion, but to give an example, some years ago there was litigation between two companies called Crofter Properties and Genport Limited. It was a long-running dispute about a leasehold interest in Sachs Hotel. One of the allegations was that one of the parties had made anonymous telephone calls to an English police force alleging that the other party was guilty of drug dealing, IRA membership, money laundering and so forth.

I acted for the party against whom those allegations were made, and we were trying to get evidence from the English police as to the effect of the telephone calls in question and what had been said in them. Mr. Justice McCracken, coincidentally, was the High Court judge hearing the case. He issued letters of request addressed to the English High Court asking that the court make an order directing the police officers to give evidence when we would travel to England and take the evidence from them. As it was a sensitive matter involving the police we, rightly or wrongly, took the more conservative view and transmitted the letter of request through the Department of Foreign Affairs to the UK Foreign Office rather than directly from court to court, as was done in the McCracken tribunal itself.

However, when it reached the UK Foreign Office, it considered section 9B of the 1975 Act, which said that one cannot get evidence from a servant of the Crown in his capacity as a servant of the Crown, and as a result refused to transmit the letter of request to the English High Court. When Mr. Justice McCracken found out about this he was understandably annoyed and made a further order and further direct request that the letter should be transmitted to the English High Court. We might have lost in the English High Court, but if we wanted the opportunity to at least debate the point before the court then it was a matter for the court to decide. However, the UK Foreign Office was resolute and would not transmit the letter of request to the English High Court, notwithstanding the request from the Irish High Court judge to do so. I proffer that by way of a footnote or example of the difficulties which can be experienced notwithstanding the issue of a letter of request from the High Court or the tribunal. Mr. Bueno assisted me on that case. We did get the evidence, but in a totally different way and through mechanisms that will not be of assistance to the sub-committee in these proceedings.

Mr. Bueno

It could be described as the luck of the Irish.

Mr. Collins

I want to deal specifically with the suggestion that was made to the sub-committee, particularly by Mr. Mansfield QC, that because of Article 2 of the European Convention of Human Rights, guaranteeing the right to life, there is a corresponding duty on the state to set up an effective official investigation into circumstances where death has resulted from some form of unlawful use of force. The argument, I think, was put on the basis that by virtue of what happened in 1974, to vindicate the right to life of the people who died it is necessary that the state now set up a tribunal of inquiry as the corollary or implementation of that duty of effective investigation.

At paragraph 35, page 15, I point out that the case law of the European Court of Human Rights has indeed held that there is what is sometimes called a corollary or adjectival right to set up an effective official investigation in certain circumstances, but not all. It cannot be the law that every time a death occurs through the use of unlawful force thatipso facto sets up an obligation on the part of the State to conduct an official inquiry. If that were so we would have official inquiries virtually every week in one form or another.

The leading decision which Mr. Mansfield QC referred to, rightly, is Amin v. Secretary of State for the Home Department (2002) 4 All ER 336. The Lord Chief Justice, Lord Woolf, gave the only judgment in that case, and he emphasised that this is very much a matter which depends on the facts and circumstances of the individual case and that the approach has to be one of, and I quote from the very end of paragraph 35, “pragmatic flexibility.” I have set out Article 2 at paragraph 36, towards the bottom of page 15, which says that everyone’s right to life should be protected by law and that no one shall be deprived of life intentionally, save in the execution of a sentence of a court following a conviction of a crime for which this penalty is provided by law. A qualification in paragraph 2 provides that one can use lawful defence against unlawful violence and so forth, effect a lawful arrest or quell a riot or insurrection.

It is also relevant to note Article 13 of the convention, which is quoted at the top of page 16. It notes that everyone whose rights and freedoms as set forth in the convention are violated shall have an effective remedy before a national authority, notwithstanding that the violation has been committed by persons acting in an official capacity. There is an obligation on the state to vindicate the right to life set out in Article 2. Article 2 itself says nothing about an effective investigation. That is an entirely judge-made construct that says if somebody's life is taken away that person's right to life cannot be directly vindicated but that there are circumstances in which the best vindication possible is to carry out an official investigation into how and why that person lost his or her life.

We see from the case law that this is particularly so where agents of the state itself have caused the loss of life. The most common example is prisoners in custody who are either killed by other prisoners or may have committed suicide in a cell or something of that sort. Some of the cases referred to are against Turkey, particularly involving allegations of torture by state bodies, agents and so forth resulting in death. Those are the classic examples of when the duty to investigate is triggered. It is also fair to say that the case law does not confine it to that. It says that there can be other circumstances, not necessarily involving agents of the state, in which the duty to set up an official investigation occurs. However, all of the cases where they have found the duty to investigate, as far as I know, have involved some unlawful action or killing on the part of the state.

The European Court first expressed this duty in the McCann case, which I refer to at paragraph 38. The language used in that case has been repeated a number of times so it is worth looking at. It was noted that a general legal prohibition of arbitrary killing by the agents of the state would be ineffective in practice if there existed no procedure for reviewing the lawfulness of the use of lethal force by state authorities. The obligation to protect the right to life under this provision requires, by implication, that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by,inter alia, agents of the state. Those words inter alia, among other things, mean that it is not confined to that situation, and Lord Woolf called that “the tell-tale Latinism inter alia.” Therefore, the duty is not restricted to those circumstances. Undoubtedly, however, that is the principle circumstance that has triggered the duty to date.

The sub-committee will therefore have to consider how that applies to the circumstances of the 1974 bombings and whether the Irish State has an obligation to set up a tribunal of inquiry in those circumstances. I am, of course, subject to correction because I do not have the detailed knowledge that the sub-committee has of these matters, but as I understand the background, there is no allegation that agents of the Irish State themselves carried out the bombings in question. There is a criticism that intelligence may have been available to the Irish authorities in advance of the bombing which might have prevented it, but that is a negligence type of allegation rather than an allegation that agents of the Irish State in fact carried out the bombings or in any way deliberately colluded in them.

Similarly, there are issues about what happened subsequent to the bombings, the extent to which the Irish Government properly investigated it, if it did not investigate it properly, why that was so, and whether there was some element of collusion with the British Government. Those are not in any way allegations that agents of the Irish State were involved in the killing of the people who died as a result of the 1974 bombings. The classic paradigm of the circumstances where the duty to investigate arises under Article 2 does not necessarily appear to arise in the first instance if the facts and circumstances are as I have summarised them.

A separate issue is the extent to which the Northern Ireland or British authorities were involved in the bombings, not merely in some negligent fashion but through some form of active collusion and assistance to the bombers.

Which paragraph are we at now?

Mr. Collins

Paragraph 42, at the top of page 18. That links in with what Tony Bueno was saying about the possibility and desirability perhaps of a tribunal of inquiry in England. Each of the states has an obligation to vindicate the right to life under Article 2. If, as there is, a serious allegation and apparently reason to believe that there was some form of collusion between United Kingdom authorities and the bombers in question, there certainly seems to us enough to argue that the British State may have an obligation to vindicate the right to life under Article 2 of the convention by setting up not necessarily a tribunal of inquiry but a sufficient, effective, official investigation into the circumstances of the 1974 bombing, with particular reference to the collusion and involvement of the British authorities or agents. That is certainly within the classic formulation of the obligation to conduct an official investigation given the state involvement.

If we step aside from that question of state involvement and look at the Irish State's position and whether it has an obligation, the difficult question is what are the criteria which trigger the obligation to set up an official inquiry, absent the factor of state involvement in the killings. The courts have not set out in any detail what are those criteria, mainly because the facts they have been concerned with in the cases that have come before them have involved state killings or killings involving state agents.

At the bottom of page 18, paragraph 44, we quote from Lord Woolf's judgment in the Amin case, where he stresses the extent to which each case depends upon its own facts. He says that there is plainly no duty on the face of the convention to investigate a death. It is clear that such a duty has been constructed or developed by the court at Strasbourg out of a perception that without it the substantive rights conferred by Article 2 would or might in some cases be rendered nugatory or ineffective. The duty to investigate is adjectival to the duty to protect the right to life and to the prohibition of the taking of life. It follows, Lord Woolf continues, that by its nature it cannot be a duty defined by reference to fixed rules. It only has life case by case, contingent upon what is required in any individual instance where the substantive rights need protection.

Lord Woolf also noted:

Across the spectrum of possible Article 2 violations, there are classes of case which can readily be distinguished. One class is that of allegations of deliberate killing - murder - by servants of the State.

A second is that of allegations by gross negligence - manslaughter - by servants of the State. A third is that of plain negligence by servants of the State leading to a death or allowing it to happen. In the context of any of these classes, there exists the lamentable possibility that the State has concealed or is concealing its responsibility for the death. That possibility gives rise to the paradigm case of the duty to investigate. The duty is in every instance is fashioned to support and make good the substantive Article 2 right.

That is probably the key sentence: "The duty ... is fashioned to support and make good the substantive Article 2 rights", in other words, the right to life itself, the ancillary right being the right to the investigation. He continued, "This approach sits with a Strasbourg jurisprudence, whose character has always been essentially pragmatic". The primary way in which the right to life is vindicated in the case of someone who is already dead is by bringing the perpetrator to justice. It is about carrying out the necessary investigations that will lead to a prosecution for murder, manslaughter or even a negligence action. One of the issues the sub-committee has to consider, therefore, is to what extent would a tribunal of inquiry assist in a practical way in actually producing evidence which might enable the DPP to bring prosecutions in this jurisdiction against people responsible and in circumstances where some of those people might be outside the jurisdiction and who may, of course, have to be the subject of extradition and so forth.

That is not the only criterion. An obvious purpose of an official investigation which does play the role in vindicating the substantive right is to enable the State to learn lessons from the tragedy to avoid such tragedies in the future. In paragraph 45, we quote Lord Woolf when discussing death in State custody:

The State owes a present duty to minimise the risk of such a calamity, even if it cannot be altogether extinguished. The common law would impose such a duty, if it could find an appropriate litigious framework in which to make it good. Now, however, it is enough to say that such a duty lies within the scope of Article 2. When such a death takes place, the procedural duty to investigate is in our judgment undoubtedly engaged. That is not to say what is required to satisfy the duty is necessarily the same in a case where the death has allegedly been allowed to happen by virtue of negligence on part of State servants, as in the case where it is said the State servants have themselves killed the victim by the use of unlawful force.

Therefore, one has to look to see what is the essential purpose of an investigation under Article 2. The Jordan case is the key case in the UK in that regard in which the RUC had shot and killed a person after a car chase and his father alleged there had been no effective investigation. In the case the European Court of Human Rights said:

The obligation to protect the right to life under Article 2 of the Convention ... also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force ... The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life [that means the prosecution for murder or manslaughter] and in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve the purposes may vary in different circumstances.

A critical question is the extent to which it will facilitate criminal prosecutions, the point we make in paragraph 47. This, in turn, feeds into the points made by Mr. Bueno on the possible difficulties that might be faced on the public immunity front and whether the necessary evidence could, in fact, be maintained to justify a criminal prosecution in this jurisdiction.

In paragraph 48 we consider the question of the lapse of time between the bombings and now. In the Jordan case a variety of detailed requirements were set out which have sometimes been taken as being written in stone, as if they are what an inquiry must do and meet. Lord Woolf has made clear that the Jordan requirements, as they are sometimes called, were simply a reflection of the facts of that particular case and may differ from case to case. In the Jordan case the court stated, "However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention". In other words, there is a duty to act promptly in this matter. Lord Woolf stated:

They cannot leave it to the initiative of the next of kin, either to lodge a formal complaint or take responsibility for the conduct of any investigative procedures.

The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, includinginter alia eye witness testimony, forensic evidence ... any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard.

This poses two different questions. One was whether there was a failure in 1974 and 1975 to carry out the sort of effective investigation that may have been required, either by the UK state - most probably - or conceivably by the Irish State, particularly in so far as the failure to act on warnings and so on may be involved. The second and separate question is whether there must now be such an official investigation. Obviously, we cannot fulfil the requirement that this investigation be prompt because it is now 30 years later but an element of pragmatism and practicality must be taken account of.

The sub-committee needs, as we say in paragraph 50, to consider to what extent it may realistically be said that a tribunal of inquiry would succeed in having available to it a better quality of eye witness or forensic evidence than Mr. Justice Barron had, bearing in mind that Mr. Justice Barron, as I recall from the report, expressed his satisfaction with the co-operation he got from the Irish authorities. The purpose of the tribunal is to make good the deficiency in the co-operation from the Northern Ireland authorities. That is why it is relevant to ask how much better evidence will be got from Northern Ireland by such a tribunal.

The sub-committee can, obviously, consider who can be compelled to give evidence within this jurisdiction without being trammelled by security-type considerations. In paragraph 50, there is a quote from the Jordan case. After pointing out that no specific procedures or model of inquiry is required, the court stated:

If the aims of fact finding, a criminal investigation and prosecution are carried out or shared between several authorities, as in Northern Ireland, the court considers that the requirements of Article 2 may nonetheless b[e] satisfied if, while taking into account other legitimate interests such as national security or the protection of material relevant to other investigations, they provide for the necessary safeguards in an accessible and effective manner...

While this is primarily about the fact that there can be different modes of inquiry tailored to the circumstances of the particular case, it is interesting to note that other legitimate interests such as national security and the protection of material relevant to other investigations are also acknowledged.

In the Amin case, Lord Woolf put it as follows:

The nature and scope of an adjectival duty, which by definition is not expressly provided for in the Convention, must especially be fashioned by the judgment of the domestic courts as to what in their jurisdiction is sensibly required to support and vindicate the substantive Convention rights.

The reference to what is sensibly required and the references to pragmatic flexibility mean, in our view, that the decision on whether the duty to set up an investigation is triggered does depend on an assessment of what can practically be achieved. In this respect we differ slightly with Mr. Mansfield who drew attention in his submissions to the sub-committee to what he called almost the moral imperative for setting up such an inquiry. The mere fact that it might be futile was not sufficient reason, in his view, to decline to set up a tribunal of inquiry. We would not quite go that far or much distance along that way. We think the practicality and possible futility of a tribunal - we are not saying it would necessarily be futile, but one might form the view that it was not likely to be a practical or useful exercise - is a very strong consideration in deciding whether there is a duty under Article 2 of the convention. This is something a court would consider in deciding whether the Irish State was in breach of any Article 2 duty.

In paragraph 53 on page 23 we identify two or three other factors that the courts have mentioned as possibly triggering the duty to investigate. We have already pointed out the lesson-learning factor of the tragedy and the need to try to avoid such an event in the future. There is also value in the next of kin having the comfort of knowing that an attempt has been made to investigate, as far as is reasonably practical, how and why these deaths occurred. This is a substantive and important value that cannot be underestimated in any shape or form.

Third, there is the general value of reassuring the public that everything has been done to bring the perpetrators to justice, ensuring confidence in the rule of law and that State security and order can be maintained. Lord Woolf referred to those points as follows:

What is required will vary with the circumstances. A credible accusation of murder or manslaughter by state agents will call for an investigation of the utmost rigour, conducted independently for all to see. An allegation of negligence leading to death in custody, though grave enough in all conscience, bears a different quality from a case where it is said that the state has laid on lethal hands.

The procedural obligation promotes these interlocking aims: to minimise the risk of future like death; to give the beginnings of justice to the bereaved; to assuage the anxieties of the public. The means of their fulfilment cannot be reduce to a catechism of rules. What is required is a flexible approach, responsive to the dictates of the facts, case by case.

The Amin case - which was two cases, Amin and Midleton - provides an illustration of this. Mr. Amin was the uncle of Mr. Mubarak who was put into a cell with a racist prisoner who bludgeoned him to death with the wooden leg of a table. A variety of inquiries were established. The Director General of the Prison Service wrote, I think on the same day of the death, in a moving letter which was reported in the case report, acknowledging full responsibility on the part of the Prison Service. There was a police investigation as to whether anybody should be prosecuted for manslaughter and a wide-ranging internal prison inquiry. The Commission for Racial Equality also set up an inquiry, although the family was not permitted to participate in that to any extent and it was held in private rather than in public. Nevertheless, the court held that collectively, those inquiries amounted to sufficient satisfaction of the Article 2 duty.

The Midleton case concerned a man who hanged himself in a prison cell. The coroner's inquest was the form of inquiry there and traditionally under the coroner's rules, the coroner's jury does not address the issue of negligence, it only address the how and why of the cause of death. In this case the court said that in order to give a effect to Article 2, the coroner's jury should be asked to consider the question of negligence because all of the rules and so forth have now to be interpreted in the light of the European Convention, but if so interpreted, that coroner's inquest was sufficient to vindicate the ancillary right to life, in other words, the duty to investigate. The case is illustrative of the fact that there can be many different forms of inquiry which may satisfy, on the facts of any individual case, the duty to investigate.

Finally there is, perhaps, a more general and philosophical point we make which is that when we talk about getting to the truth of the matter, there are different levels and layers of the truth and whether what is really required is accountability on the part of who was politically responsible, accountability and identification in terms of pointing the finger at the individuals who carried out the bombing and so on. We finish with an extract from an interesting article by Angela Hegarty, entitled Dealing with the Past - the Government and Memory, Public Inquiries and the Limits of Justice in Northern Ireland, published in theInternational Law Journal last year. The article mainly deals with the issue of the conflict between the right to life and the duty to investigate for the victims of bombings and so on and terrorism versus the right to life of witnesses before tribunals who say their own lives will be in danger if they give evidence. In that context the article states:

The notion of truth is a difficult one, both philosophically and practically. The concept is particularly difficult in the context of a conflict where even the nature of the conflict, that is, what the conflict was about, is contested. This is complicated further by the lapse of 30 years in a conflict where law was employed by the state to further its political ends. Truth is therefore a particularly thorny concept. This is because what people often mean when they use the term "truth" is acknowledgement. What people frequently want from a truth process is an acknowledgement of the violation of their rights, an admission that what was done was wrong. This is also important for the purpose of accountability and reconstruction. Without admitting the wrong done one may not prevent the future from replicating the abuses of the past. In consequence, deciding what is meant by truth should be the first task of any truth process.

This raises some difficult questions. For example, how much information does one need to have in order to be satisfied that one has the truth? In Northern Ireland, for example, is it sufficient to know that the British Army shot one's sister or that the IRA killed one's father, or is it necessary to have greater detail? Perhaps one requires the name of the combatant who carried out the killing or the identity of the politician responsible for the policy being carried out.

These are the kinds of factors also to be considered in deciding whether or not the sub-committee considers it appropriate to recommend setting up a tribunal.

Thank you, Mr. Collins. We will now have questions.

Thank you, Mr. Collins and Mr. Bueno, for attending the sub-committee. Your reputations in this field of seeking documents and evidence outside the jurisdiction goes before you. If memory serves me right, Mr. Collins was often described in the media in connection with the McCracken tribunal as a bloodhound for the truth. His expertise in this area is very valuable to the sub-committee when reaching its difficult decisions. First, I ask Mr. Bueno to clarify a couple of things in regard to the 1975 Act. Section 1 refers to letters of request for evidence into——

Mr. Bueno

It is outlined at paragraph 13, page 6.

The second line refers to evidence to be obtained in England and Wales. I am sure there is a reasonable explanation for the fact that Northern Ireland is not included.

Mr. Bueno

Northern Ireland has its own separate legislation. I have a recollection that the 1975 Act does extend to Northern Ireland. This Act was passed, as I have said, to give effect to an international convention on the taking of evidence in one country for the purposes of litigation in another. I can double check but I have checked this in the past and my recollection is that the 1975 Act does apply to Northern Ireland, just as the 1921 Act applies. I have just checked that, and it is plainly the case.

I just noticed when I was reading through the section that it does not include Northern Ireland.

Mr. Bueno

Yes but, equally, one must remember that the 1921 Act does extend to Northern Ireland, so there is a community of legislation between Northern Ireland, Ireland and elsewhere in the United Kingdom. All of these jurisdictions mirror each other in this legislation. Of course, a principle point we would make is that it would be unthinkable, where there is identical legislation in all of these jurisdictions, that the courts of one country would not accord the utmost respect to letters of request issued by another country invoking precisely that legislation.

On those letters of request, my understanding is that the appropriate tribunal of inquiry in this jurisdiction would send the letters of requests and, ultimately, the matter would come before the High Court. Am I correct in saying one of the first decisions that has to be made is whether this applies to civil-commercial matters as distinct from criminal matters?

Mr. Bueno


If it applies to criminal matters, does that mean that the 1975 Act does not then apply?

Mr. Bueno

The Deputy is absolutely right. The 1975 Act does not apply to criminal matters. There are other conventions and legislation dealing with evidence gathering for the purposes of mutual assistance in the investigation of crime and obtaining of evidence for the purposes of criminal proceedings in different jurisdictions.

This was one of the two critical issues that arose for consideration in the Cayman Islands. It is addressed at paragraph 14, page 6 of our joint opinion, immediately following the citation of section 1 of the 1975 Act. The two central issues from a purely legal perspective were, first, whether the requests would be made by a tribunal within the meaning of the words "court or tribunal" in section 1(a) of the 1975 Act; and, second, whether the evidence to be requested is for the purposes of civil proceedings within the meaning of section 1(b). This matter was canvassed in some detail in the Cayman Islands proceedings because precisely the same point arose. It is an anomaly because the McCracken tribunal was concerned with investigating certain payments, and although its overt objective was not necessarily prosecutions, this was plainly a matter which could conceivably follow, as indeed it did, from findings which were adverse to particular individuals.

The activity of a tribunal of inquiry is purely investigatory. It may be investigating criminal matters but it is still a civil investigating body. It is carrying out a civil, not a criminal, function. That was the argument urged in London. This was accepted by the master after being touched upon briefly there, and it was certainly argued at length in the Cayman Islands. On this particular issue, it was held that the activities of a tribunal for these purposes would be regarded as civil proceedings.

The fact that an Irish tribunal of inquiry would essentially deal with criminal matters could not be used as a defence in the English courts not to co-operate with such a tribunal.

Mr. Bueno

Assuming that orders of the kind we have in contemplation are made, it would be almost smacking of perversity if the English authorities were to take points of this kind. After all, England has got precisely the same legislation and if a letter of request were issued by an English tribunal of inquiry, it would not expect points of this kind to be taken against it in another jurisdiction which has exactly the same legislation. I know it is a bit of a fudge answer but I would be very surprised if points of this kind were taken. If they were, I would expect and hope that the English court would determine the matter in the same way as the Grand Court in the Cayman Islands.

Mr. Collins

One of the reasons we lost in Cayman was that the tribunal was held by the Cayman court to be a tribunal without the necessary adjudicative powers but for that very reason it was also only investigating into civil matters. Ultimately, a tribunal, even with a High Court judge, is reporting to the Oireachtas. It is set up for that purpose.

I read your article about that point.

Turning perhaps to the two most important paragraphs, paragraphs 32 and 33, on the prospects of success, as Mr. Bueno and Mr. Collins are aware, one of our terms of reference is that we have to make a judgment as to whether any such public inquiry would be fruitful, as distinct from futile. On page 14 it is stated that presumably Dr. Reid took very careful advice before responding as he did and we must therefore infer that the same uncompromising position will be maintained if orders are made in pursuance to a letter of request. Certainly, the inference is correct because Des Doherty, a solicitor, recently supplied us with a reply from the Secretary of State's private secretary who states explicitly at the end of his letter, "We have supplied all relevant information to Mr. Justice Barron from these documents consistent with the Secretary of State's obligations to safeguard national security and the safety of individuals. We would repeat this approach in supplying information to any judicial inquiry". Therefore, it is not really an inference but a certainty that that is what their position would be. Assuming it is a certainty that that is what the position would be and that they invoke the sections on public immunity, I did not quite follow the reasoning behind the statement that it is unlikely that the High Court would not uphold a claim to immunity from disclosure. Mr. Bueno did not give any substantive arguments as to why the High Court would come to that opinion.

Mr. Bueno

It comes down to a hunch at the end of the day. These are not political statements. They are, of course, inferences which we, as lawyers, draw from the known facts. Of course, we do not know of what the material comprises. As I understand it, taking this in stages, first, we know that there has been co-operation at a very senior intergovernmental level. That is what we are told. I think I have seen references somewhere in the transcript to the fact that there has been dialogue, even at prime ministerial level.

None of us needs reminding that we are now living in an era when everybody is acutely aware of the dangers of international terrorism and one hopes that Governments are acutely aware of their responsibilities with regard to stamping out terrorism and investigating matters of this kind. Given the assurances, which Dr. Reid gave, that any requests would be dealt with sympathetically - I believe he went further than that - one has to assume that in truncating the evidence which he provided to the tribunal, he took fully into account the assurances which had been given at senior governmental level. Bearing in mind the standards which the British Government has now set itself when deciding whether public interest immunity should be invoked, particularly in the forensic context, this material was very carefully considered, each of the criteria which have been identified here were looked at very carefully, that legal advice at a senior level was taken and the conclusion was that disclosure, as he put it, would endanger life or national security. If that is the situation and a judge examining the documents comes to that conclusion, then it seems to me that it will be very difficult to persuade any court that disclosure should be made.

If a Secretary of State makes an arbitrary decision that to release these documents would not serve the public interest, what test is employed at that stage to decide whether that decision is reasonable or not?

Mr. Bueno

That is a very fair and important question but one which I would struggle to answer. In my experience, this type of situation is unique. I am not aware of any situation where public interest immunity has arisen as such an important issue in the context of a tribunal of inquiry, except in the Bloody Sunday inquiry where the questions for determination were entirely different. Normally, public interest immunity becomes important where evidence is given in an adversarial context, either in civil or criminal proceedings. The overriding principle is that there should be a fair trial. This involves a delicate balancing exercise between, on the one hand, the public interest in the national interest and, on the other, the public interest in ensuring that proper disclosure is made in litigation.

We have an odd situation in this case. We are not considering an adversarial tribunal but an investigative one. It is a matter of grave public importance that the truth should be obtained. That is the guiding principle for anyone deciding whether disclosure should be ordered. If a judge is confronted with strong assertions, supported by cogent evidence, that to disclose this information would endanger life or national security and assuming these very wide statements are made good, then I would have to say that the judge would be extremely unlikely to order disclosure.

Normally this problem arises for consideration in the adversarial context or, in other words, in the context of litigation in civil or criminal proceedings. If the guiding principle is that there should be a fair trial, then, obviously, the person best placed to determine whether that material should be disclosed is the trial judge himself. He is the person who knows exactly what is going on and is uniquely placed to carry out that balancing exercise. However, we are discussing the possibility of a tribunal being established in this jurisdiction, issuing a letter of request addressed to the High Court in London or in Northern Ireland where another judge will make this call. He is one step removed and is not part of the investigative process. I am not saying it is an impossible situation but it does put him at a degree of disadvantage. That person, removed from a tribunal of inquiry in this country, with strong assertions of the kind which, we have to assume, have been very carefully thought out in advance given the assurances at senior government level, will be very impressed with that. That is the difficulty we have. All of us are speculating but my speculation is that the information will not be given.

Mr. Collins

When this happens in ordinary domestic litigation, there must be a balance between the public interest - let us say, in the case of a ministerial document - versus the interests of a fair trial. The trial judge will actually look at the document. They are the two competing interests. In this case there is no trial as such; we have got a tribunal of inquiry. The Northern Ireland or English judge will be looking at UK security interests versus the interests of what is in his or her eyes a foreign tribunal of inquiry reporting to a foreign Parliament. In the ordinary course of events, in the real world——

It will not serve the British public interest.

Mr. Collins

Exactly, it will not particularly serve the British public interest. When this is allied to the fact that judges are reluctant to get involved in second-guessing Executive-type decisions, particularly in areas of national security and so forth, one has to have a certain degree of pessimism.

That clarifies a lot.

Mr. Bueno

Let us add one rider. If, in fact, the threshold were reached and the Westminster Parliament could be persuaded to set up a tribunal of inquiry of the kind we are discussing, the very fact that such a tribunal was set up would undermine the objections of any agency of Government to producing documents because those matters would have been taken into account and factored in to the decision on whether a tribunal should be set up. That is another important point that has to be made.

Mr. Collins mentioned the European Convention on Human Rights and the obligation in certain circumstances for states to hold effective investigations and inquiries into events involving loss of life. Professor Warbrick put it to us that there would be huge difficulties in that area because of the Bankovic case, which Mr. Collins did not mention. I am not sure whether he places a lot of importance on it. Mr. Mansfield was making the case that if the Secretary of State, in response to requests for information, stated that in the national interest he would not give out this information, the tribunal counsel could argue that he was not vindicating the rights set out in the convention. Professor Warbrick, however, stated that because of the Bankovic case the convention would not really apply to non-UK citizens. Mr. Collins did not address this issue in the opinion. He said there would be an enormous stumbling block, even in the event that the PII was overcome.

Mr. Collins

By and large, I agreed more with Professor Warbrick's views on the matter than with Mr. Mansfield's. The question of people outside the convention territories is a difficult one and I have not directly considered the Bankovic case. The complexity arises from the question of whether somebody in the convention country can avail of the convention: the better view seems to be that he or she can, even though he or she may not necessarily be a resident or citizen of that country. Professor Warbrick was talking about the reverse situation: not an Irish tribunal of inquiry but a UK one. I did not see it as a stumbling block to the extent he did, although I broadly agreed with his views on the matter.

Mr. Collins placed a lot of emphasis on the opinion of the Lord Chief Justice of England and Wales, Lord Woolf, in the McCann case when it came to practicalities. Our terms of reference relate to whether such an inquiry would be fruitful, whereas Mr. Collins discussed whether it would be futile. Could he elaborate a little more on this? Our bar is whether it would be fruitful and effective. Is he suggesting that it be should be whether it would be futile?

Mr. Collins

There is ambiguity as to what is meant by "fruitful". The wording used in the sub-committee's terms of reference is "whether ... a further public inquiry into any aspect of the Report would be required or fruitful". Mr. Mansfield took this almost as a statutory text, saying that even if such an inquiry would not be fruitful, it was nonetheless required, as if they were two separate things.

The point I am making is that there is, in fact, an interconnection between those two things. It is only required as a matter of law under the convention if there is some degree of practicality or utility to the result one hopes to get from it. I read the word "fruitful" in that context, so I do not draw a great distinction between the word "fruitful" and a word such as "practical" or having some useful effect in the future for the purpose of vindicating the right. In other words, the more general right, such as assuaging the rights and feelings of the bereaved, the necessity to get evidence for a prosecution and so forth - they are all the things that are served by a possible inquiry. It must be asked is an inquiry likely to achieve those things. Whether that leads one on to ask if an inquiry is fruitful, practical or whatever, I would regard that terminology as interchangeable.

You mention criminal prosecutions. That is something we must take into account in our consideration, that is, whether there would be criminal prosecutions.

Mr. Collins

You have to take into account whether the result of the tribunal of inquiry and the evidence that might be got would at least assist or facilitate a criminal prosecution in this jurisdiction. I say that because the case law says that the reason for the ancillary right to investigate is to vindicate the right to life, but vindicating the right to life of somebody who is already dead is primarily about bringing the killer to justice. We do that under the laws of the domestic state through murder or manslaughter prosecutions.

I also welcome Mr. Bueno and Mr. Collins to the sub-committee and for their weighty contribution. Chairman, I will be required to be elsewhere, probably within five minutes due to other pressing engagements.

Mr. Bueno, it seems that paragraph 32 on page 14 sums up to a great extent what appears to be your attitude and approach to the tasks set to the sub-committee. The paragraph states: "A sea change in the UK Government's attitude will be necessary for the evidence required to be voluntarily disclosed." The gist of your legal text is that it would be extremely difficult to get any progress through the legal circles, particularly noting what the Secretary of State for Northern Ireland said in the letter to the sub-committee, pointing out that not even the judge could see the papers because there was a likelihood that he would break confidentiality. I take it you are indicating that it would be very difficult to get these documents through legal challenge.

However, Mr. Bueno, you seem to suggest there may be an alternative route whereby these documents might be disclosed voluntarily. We are conscious of the Corry inquiry and how it worked. Last week the Taoiseach told the sub-committee how two sovereign governments made an agreement and how it worked, including on the question of access to papers. What would be your opinion on this aspect?

Mr. Bueno

To some extent you are asking me to express a political view about this. As a lawyer, all I can do is to react to what I know. You told me incidentally about a letter that has been received which we did not know about until today. As a practising lawyer, the inferences I would draw is that the information will not be disclosed. As I have said already, this appears to have been considered at the highest possible intergovernmental levels. Assurances of limited co-operation were given and, in so far as we can judge, it has been provided. It has proved to be inadequate and I would assume that Mr. Justice Barron made concerted efforts to secure the release of the information he regarded as vital to his investigation and has drawn a blank. The only inference I can draw is that the stonewalling is going to continue. The British Government has taken a measured and studied view of its position. It has concluded that the release of the information would endanger life or national security and I have no reason to suppose it will change its stance on that.

I think Professor Warbrick said that in the absence of intergovernmental co-operation, very little progress is likely to be made. I agree with him. If a tribunal is set up and letters of request are issued, and assuming none of these technical legal objections are taken and we get over any problems of that kind that are thrown in our way, we are faced, ultimately, with having to make a judgment call as to what is likely to happen. In my view, based upon what I have read and the inferences I have drawn, there would a strong claim asserted for public interest immunity in regard to the evidence which the tribunal requires.

A judge sitting in England, for the reasons explained so attractively by Michael Collins, is likely to say that the English national interest will prevail and that, much as he would like to help the Irish and much as we all regard truth as being an extraordinarily important commodity in situations such as the present, ultimately, he must put English national interests first. That is my view and I could be wrong, but taking a sensible view of the probabilities of the matter, and I regard them as strong probabilities, that is what will happen.

It would be extraordinary if Dr. Reid, having taken the time and responding as he did in such a restrictive way after all the assurances that were given at prime ministerial level, should suddenly, in response to a letter of request, give the information. I read with interest what Mr. Mansfield was urging upon the sub-committee, and I think he was basing his premise that information would be released not so much on the result of legalities but more on the psychological impact of the issue of a latter of request. With respect, I would not share that view.

I thank Mr. Buenos for that. I ask Mr. Collins about Article 2 of the European Convention of Human Rights, on which he gave a very comprehensive response. He seems to differ fundamentally with Mr. Mansfield with regard to many of his statements to us. He seemed to think that, arising out of the Amin case, we were going to open up a vista of inquiries into hospital deaths, almost, in this country. He did not adequately address that point. Can Mr. Collins clearly say to us that he would fundamentally disagree with Mr. Mansfield in what he said on those issues? Does he think that Mr. Mansfield's assertions in regard to follow on inquiries and so on are inaccurate and that is not the scenario that is opening up?

Mr. Collins

His assertions were too wide-ranging and sweeping. Although we have common ground on there being a duty to investigate, he did not lay enough stress on the fact that it differs depending on the circumstances. For example, if one has a death in a hospital due to serious maladministration within the hospital there may well be a right to investigate as a corollary of the right to life, but the nature of that inquiry might be small-scale, certainly not necessarily a tribunal of inquiry set up by the state under the legislation.

My difference with Mr. Mansfield was in part that he simply moves from the proposition that because there is an obligation to conduct an investigation in perhaps a wide variety of circumstances when an unlawful death has occurred to uncritically saying that, therefore, the state has a duty to set up a tribunal of inquiry on the facts of this particular case. A more measured approach than that is needed and a much more careful consideration of the facts and circumstances here.

Finally, in that context Mr. Collins addressed whether a tribunal might be fruitful or required to be fruitful. My reading of what he said was that unless there were criminal prosecutions or the likelihood of criminal prosecutions arising from further inquiry it could not be deemed to have any scope for being fruitful.

Mr. Collins

No, I would not want to go that far. If the Deputy looks at page 23, paragraph 53, and given my remarks about the desirability of getting evidence for a criminal prosecution, I say that it would be wrong to think that this is the sole mechanism by which the right to life is vindicated in such circumstances. I point to three factors: learning lessons from the tragedy for the future; the next of kin having the comfort of knowing that there has been a proper investigation; and reassuring the public that the state is attempting to uphold the rule of law in bringing people to justice. They are three separate factors, apart from the more forensic examination of whether there will be evidence for the DPP to bring a prosecution, which would justify the setting up of an inquiry.

In the final paragraph of the last page, an article by Angela Hegarty is quoted. Part of that article states that what people frequently want from a truth process is an acknowledgement of the violation of their rights and an admission that what was done was wrong. Does Mr. Collins agree that there is a much stronger desire to get to the full truth leading to prosecutions, and an acknowledgement, particularly if these are far-reaching in terms of possibly even Governments acknowledging that they were wrong? Does Mr. Collins agree that there is a far wider range?

Mr. Collins

Absolutely. I was not proffering this as an analysis of the facts of this particular case. I was actually making the point the Deputy is making, that there are different levels and layers of the truth. I was mindful that at one point Mr. Mansfield who I hope I am not quoting incorrectly stated in his submission, "Look, we all know and we are satisfied that the UVF were responsible for these bombings." If one took that as a given, the question then is what is the level of the truth required for the purpose of an inquiry. It may not be just to establish the UVF did it, if that is something people are already satisfied about, at least to their own satisfaction, but it may be exactly the point the Deputy makes, which is, what was the level of collusion among the security forces in the North that led to it. That, from the wider political perspective, is, of course, one of the single most crucial aspects but also one of the reasons we say that maybe a tribunal of inquiry in the United Kingdom would be a more effective mechanism to get to the truth of that particular issue rather than putting an unnecessary handicap on ourselves here where we have got to go through this letter of request procedure on public immunity and so on.

At this time there are a number of members who still have questions to ask and the business of the House must continue also. If we suspend the sitting for a time, would Mr. Collins be prepared to come back within an hour or so?

Mr. Collins

Unfortunately, I am due at a committee meeting with Judge Kearns on other matters of court administration at 4 p.m. in the Four Courts. That meeting will take one hour and I will certainly come back as soon as I can after that, if that is of any assistance. I could be here by 5.30 p.m. I will leave the other meeting if I have to.

It will take about 40 or 45 minutes for the other members to put their questions.

Sitting suspended at 3.55 p.m. and resumed in public session at 6.06 p.m.

I understand, Mr. Collins, that you have been briefed with the transcripts of all of the proceedings of the sub-committee to date. Justice for the Forgotten has requested that you also be furnished with its written submissions so that you can make an opinion based not only on what you have already received but also on the opinions of Justice for the Forgotten. The sub-committee has done everything within its terms of reference and powers to accommodate all parties, including Justice for the Forgotten, and it is very happy to accede to the request of Justice for the Forgotten and facilitate it in this way. It is fair and equitable. We agree with the legal representatives of Justice for the Forgotten in this matter, and we are delighted that you, Mr. Collins, are going to facilitate the sub-committee by making a further opinion on that basis. We look forward to seeing you on Monday morning at 9.30 a.m., at which time you will make a further statement and submission. Questions will then be asked by the members of the committee.

I thank all of the witnesses for attending. It would help the sub-committee if the submissions from the Justice for the Forgotten legal team were given to us before this weekend. If the group has anything further to add we will certainly give it an opportunity also to speak on Tuesday morning.

Mr. Collins

If Justice for the Forgotten is putting in a submission, is it something that we should also consider? Should we have that?

No, Justice for the Forgotten has made a submission to us, which we will make available to you. Then, after you leave, we will facilitate Justice for the Forgotten if it wishes to come before the sub-committee again.

Mr. Collins

I understand.

The sub-committee adjourned at 6.11 p.m. until 9.30 a.m. on Monday, 8 March 2004.