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JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS (Sub-Committee on the Barron Report) debate -
Wednesday, 8 Feb 2006

Public Hearings on the Barron Report.

I welcome the family and relatives of Seamus Ludlow and thank them for attending. The adviser to the sub-committee today is Ms Tara Connell, BL. At its last meeting the sub-committee heard testimony from the Commissioner of the Garda Síochána, Mr. Noel Conroy, and his immediate predecessor, Mr. Pat Byrne. I thank all those who have contributed to the hearings so far. Today we will hear from the Minister for Justice, Equality and Law Reform, Deputy McDowell, who is accompanied by the Secretary General of his Department, Mr. Séan Aylward.

I emphasise again that while members enjoy absolute privilege in these proceedings, Mr. Aylward who is here to assist the Minister has only qualified privilege. I am sure Mr. Aylward is aware that the protection provided is not the same as that afforded to Deputies and Senators.

Members have been circulated with a copy of the Minister's speech. I now invite the Minister to make his opening statement.

I thank the sub-committee for inviting me and Mr. Séan Aylward to comment and answer questions in relation to the Barron inquiry into the murder of Seamus Ludlow in 1976. I trust the sub-committee has received our written submission on a number of key issues. In my brief oral submission I will expand further on these and other issues as they relate to the Department of Justice, Equality and Law Reform. Before going further, I express my deepest sympathy to the members of the family of Seamus Ludlow who are present today and to others who are not. I know they have campaigned for many years to learn more about the tragic murder, those responsible and the State's response. I must also make the preliminary point that while the Secretary General and I are responsible for current matters affecting the Department, we are not necessarily familiar in every detail with the practices and policies in place almost three decades ago.

The Barron inquiry has done a great service in forensically examining the various phases of the Garda investigation into the murder of Seamus Ludlow and identifying where matters were handled well and not so well. Whatever the criticisms made, we should acknowledge that the inquiry has found that the contemporaneous Garda investigation in 1976 was conducted thoroughly, professionally and comprehensively.

The key issue, as recognised by all, relates to the non-pursuit by the Garda Síochána of the critical information naming four suspects to the murder received at a later point from the then RUC. I know there is a doubt as to why this information was not received earlier. The Barron inquiry believes the only credible explanation for the non-pursuit of the suspects is that a direction was given that led the investigating officer to abandon plans to have the suspects interviewed outside the jurisdiction. I am afraid I am not in a position to adjudicate between the competing claims made by former members of the Garda Síochána on who did or did not give such a direction. I simply do not know how the decision not to interview the suspects was reached or what precisely formed the Garda's thinking in this case. There is nothing in the files of the Department that relates to the identification of the four suspects in 1979.

We are examining the events of 30 years ago through the prism of all that has occurred since, including North-South co-operation and political progress. Given that a high level of co-operation between the Garda and the Police Service of Northern Ireland is now the norm, as evidenced by their co-operation in the investigations into the Northern Bank raid and other organised crime, it is hard to appreciate how different things were — regrettably — in the 1970s. It may be trite to say they were different times, but that is the reality. Our attitudes to Northern Ireland and what constituted appropriate contact between the respective forces of law and order in the two jurisdictions were informed by different considerations of history. I cannot put it more forcefully than this. The sub-committee should bear in mind that the issue of extradition, for example, was considered extensively in 1973-74 under the Sunningdale Agreement. A bilateral commission was established when no agreement was reached in this fundamental area of law enforcement. The Criminal Law (Jurisdiction) Act 1976 which was passed as a result of the commission's activities did not provide for extradition but for mutual jurisdiction on either side of the Border for serious offences, including murder. When one considers the current circumstances, it is clear that relations between the two sovereign states on this island were very different in the 1970s.

I note that the Barron report posits that the decision not to pursue the information offered by the RUC was made by the then Garda Commissioner, Mr. Laurence Wren. The report goes on to speculate that before making the decision, it is likely that Mr. Wren would have discussed the matter with other senior gardaí and, possibly, senior officials from the then Department of Justice. The members of the sub-committee are aware from the report that the only surviving member of the Department's security division which would have dealt with such matters at the time has no recollection of the case. As I said, there are no records in the Department from 1979 which deal with this topic. I will return to this aspect of the matter.

At this remove, there is no way that the Department or I can definitively state whether the Department was consulted by Mr. Wren or any other garda on the issue of the questioning of the suspects. I am sure Mr. Wren will want me to note that he strongly denies the findings of the report in this regard as they relate to him in their entirety. Having said that, I speculate that no such communication took place. My belief which can only be an educated surmise is based on two main reasons. First, there is no reason to believe the Department was notified in 1979 that four suspects had been identified by the RUC. There is certainly no documentary evidence that this was the case. Second, it is my understanding of the general relationship between the Department and the Garda that the investigation of criminal offences was a matter for the force within the legal and operational frameworks of the day. Although the Minister and the Department would have been briefed in general terms on the progress of major Garda investigations, they would have had no role in directing individual investigations.

I would like to return to the issue of the documentation held by the Department. I am pleased to note that the Barron inquiry confirmed that it received the full co-operation of the Department. The Barron report refers to three files provided by the Department, one of which dates from 1976 and contains the original Garda investigation report. The other two which date from the late 1990s correspond to the time of the newspaper publication of information about the suspects. The Department has no file or papers dating from 1979, or the intervening years, corresponding to the time when the RUC forwarded information about the four named suspects to the Garda. On this matter the Barron report states it is hard to understand why a file was not opened in 1979, assuming that "this information was indeed passed to the Department". That comment goes to the nub of the matter. If papers had been forwarded, I can only surmise a new file would have been opened or, more likely, that the papers would have been placed in the existing Department file, opened in 1976, containing the original Garda report. Since neither of these actions took place, it seems the most reasonable conclusion in the circumstances is precisely that the information the Garda obtained from the RUC was not forwarded to the Department.

Some assume — I believe they are wrong — that everything the Garda knows was and is forwarded to the Department. That was not the case at the time in question, nor is it the case now. Many of the intricacies of Garda investigations never go beyond the Garda organisation. This reflects the very different organisational roles of the Garda Síochána and the Department of Justice, Equality and Law Reform, as it is now called. Beyond these simple observations on the issue, I am afraid I simply cannot elaborate any further. It comes down to the obvious question of why, if there was such communication, there would not be a file. This raises the question of whether there was such communication.

Irrespective of what constituted the norm in 1976 regarding the interviewing of suspects by the Garda Síochána outside the jurisdiction, participation in the extra-jurisdictional interviewing of suspects is now an accepted part of police practice by means of formal mutual assistance requests. This typically can involve gardaí being present when suspects are being questioned by the host police service. In the 1970s and up to the 1990s mutual assistance arrangements did not have a statutory basis. Co-operation between police forces did take place in the provision of assistance on a case-by-case basis but my Department did not have any formal role in such co-operation. The first item of mutual assistance legislation was enacted in 1994 and that law enabled Ireland to provide mutual legal assistance for and seek such assistance from other countries. This is contained in Part 7 of the 1994 Act and regulations made under that Part, namely, the criminal justice regulations of 1996. Pursuant to the 1994 Act, requests for assistance to or from Britain and Northern Ireland are communicated through the so-called central authorities. In Ireland's case, this is the mutual assistance and extradition division of the Department.

On more recent developments, the Criminal Justice (Mutual Assistance) Bill 2005 has been published. When it is passed and implemented, it will give effect to three mutual assistance instruments, the first of which is the Convention on Mutual Assistance in Criminal Matters of the Member States of the European Union, signed in 2000. The second is the protocol to that convention, dated 2001, while the third is the second additional protocol to the convention, also dated 2001. The Bill also provides for certain amendments to the Criminal Justice Act 1994 which have arisen in the context of operational experience.

Let me refer briefly to another issue which touches on my area of responsibility, namely, the issue of coroners' inquests. The sub-committee will be aware that one of the criticisms made in the Barron report relates to the period of notice given to the Ludlow family in respect of the original coroner's inquest in 1976. In particular, the Barron inquiry's conclusions deal primarily with the extent of Garda efforts to notify next of kin, its purported authority to refuse a request to adjourn the inquest and what seems to be de facto acceptance by the coroner that the contact made was adequate. The sub-committee will already know that, on foot of a direction from the Attorney General, a new inquest was held into the death of Seamus Ludlow in 2005 and that the coroner returned a verdict of unlawful killing. The next of kin were represented at this second inquest and the Department provided an ex gratia payment to meet the costs of the legal representatives who had acted for them at that inquest.

On the wider issue, current best practice on the part of coroners is to afford the next of kin every opportunity to attend inquests. This stems from an unrelated High Court case which found that there had been a breach of the rules of natural and constitutional justice in failing to give the next of kin an opportunity to be heard at an inquest. This stems from an unrelated High Court case which found that there had been a breach of the rules of natural and constitutional justice in failing to give the next of kin an opportunity to be heard at the inquest. Coroners are now advised that they should be prepared to adjourn an inquest if they are not satisfied that the spouse or next of kin have been properly notified. Moreover, at all times, responsibility for holding the inquest in a proper and fair manner is entirely the coroner's and is not a matter for the Garda Síochána.

A particularly significant development in regard to coroners was my announcement last month of Government approval for the early drafting of a Bill to comprehensively reform the legislation relating to coroners. The background to this development was the report of the coroners review group which recommended a comprehensive overhaul of the coroner service with regard to, first, the legislation governing the work of coroners; second, support services available to them; and, third, the structural organisation of the coroner service. This reform effort was further enhanced by the report of the Coroners Rules Committee in October 2003.

The proposed new Bill, the heads of which have been published, incorporates many of the recommendations made by the coroners review group. It also has regard to developments since in jurisprudence and ongoing reform of coroner services in other common law jurisdictions. I was confronted with the choice before Christmas of bringing forward a remedial Bill to deal with one particular defect of the present law or going ahead with the broad Bill. I was very grateful that the Labour Party tabled a Private Members' Bill which was put through the Oireachtas and which enabled me not to abandon my programme of work to ensure the Bill is drafted and published as quickly as possible.

There are two critical elements involved in the reform of the coroner service: first, the development of optimum structures and administration for a modern coroner service; and, second, the widening of the scope of the inquest. Significantly, the Bill provides for the establishment of a coroner service. On the establishment of the service, full responsibility for coroners, including financial responsibility, will rest with me as Minister and the involvement of local authorities which provide the coroner service and the accommodation for it will cease.

The Bill proposes to widen the scope of the inquest from investigating the proximate medical cause of death, to which it is confined at present, to establishing in what circumstances the deceased met his or her death. Current law in the Act of 1962 and as interpreted by the courts provides for a restrictive approach as to the examination at inquest of "how" the person died. The examination is limited to the proximate medical cause of death. The coroners review group recommended the extension of the remit of the coroner to the investigation of the wider circumstances surrounding a death and that it be expressed in positive terms in any new legislation.

I am conscious that the new coroner legislation must also meet the requirements of the European Convention on Human Rights. Judgments from the European Court of Human Rights in Strasbourg and decisions about its application in the United Kingdom, in particular a decision of the Law Lords in Britain which interpreted Article 2 as providing for a more extensive investigation of the circumstances of death, seem to indicate that an extension of the scope of an inquest is not simply a policy choice but is effectively required to meet the obligations of the convention. The effect of some judgments of the European Court of Human Rights is that there must be provision for legal aid in cases where there is involvement of the State in the circumstances of the death. The Bill provides that I as Minister may, with the consent of the Minister for Finance, arrange for the granting of legal aid in proceedings before a coroner where a person has died in, or resulting from being in, State custody or in certain institutional care situations.

In summary, the Coroners Bill will radically reform the coroner service. It will provide for a modernisation of the death investigation, post-mortem and inquest procedures so as to ensure a better service to society in general and the relatives of the deceased, in particular, than is currently possible under the 1962 Coroners Act. On this occasion I express deep regret to the family and next of kin of Mr. Seamus Ludlow, on what by any standards was a deeply unsatisfactory and inexcusable experience in the holding of the first coroner's inquest.

I have previously referred to the relationship between the Department and the Garda Síochána which is the focus of some attention in the report. Whatever the nature of that relationship may have been in the 1970s — in particular, 1976 — and whatever about confusion at the time, it is instructive to consider how that relationship is set to evolve considerably with the enactment of the Garda Síochána Bill 2005. Without exaggeration, it is fair to describe the 2005 Act as a fundamental restatement of the relationship between the Department and the Garda since 1922 because it recasts in statute form the formal relationship between the Executive, the Minister, the Oireachtas and the Garda, as well as the latter's relationship with local government. In doing so, it also introduces fundamental structural changes in the Garda Síochána and represents its most significant overhaul since the foundation of the State.

Among the central provisions of the Act which would be of relevance to the consideration of the Ludlow case would be the provision for a Garda Síochána inspectorate because the Act provides for the establishment of an inspectorate tasked with ensuring the resources of the Garda Síochána are used to achieve the highest levels of efficiency and effectiveness compared to best police practice and standards. The inspectorate will monitor the operation and administration of the force and report to me as Minister with advice on best practice. The Department anticipates that a benchmarking process will be undertaken comparing Garda operations with examples of best practice in other jurisdictions. The reports of the inspectorate will be laid before both Houses of the Oireachtas and the chief inspector will, when requested, attend before any relevant Oireachtas committee in connection with any such report.

There is the provision of information by the Garda Commissioner for the Minister. The Act obliges the Garda Commissioner to inform me as Minister, through the Secretary General, of information on any development which might adversely affect public confidence in the service. That is a very strong obligation. The Commissioner, effectively, is obliged from now on, if there is a problem or something is untoward, and has a statutory duty, through the Secretary General of the Department, to inform the Minister of this. It is not a question of saying something has gone somewhat wrong but there is not a public controversy about it; that because nobody is asking us about it, there is no public statement. There is a positive duty on the Commissioner to give me that kind of information in order that I can be fully accountable to the Houses of the Oireachtas.

There is also the question of Garda plans, the details of which I will not go into, as the sub-committee is familiar with them. If there is actual Garda misbehaviour, the Garda Ombudsman Commission, the members of which will be appointed in the next few days, will be in a position to deal with it. The other point to which I should draw the attention of the sub-committee is that it is not simply a matter of external inspectorate-driven standards being imposed from outside on the Garda Síochána because the Commissioner has already established internally a professional standards unit to deal with all of the issues in respect of which the Garda will be held to account by the inspectorate.

The Garda investigation into the murder of Seamus Ludlow, undoubtedly, had good and, unfortunately, very bad points. The 1976 investigation, as Judge Barron said, was a professional one but what happened in 1979 cannot be stood over. I do not think any member of the Garda Síochána has since attempted to do so. I cannot do a better job of highlighting these issues than was done by the inquiry. On the basis of the findings of the Barron report, the Ludlow family, undoubtedly, has a sound basis for feeling very aggrieved at a number of events surrounding the murder, including those relating to the interview of suspects and the original coroner's inquest. While somebody can never guarantee that things will not go wrong again in specific Garda investigations, the accountability arrangements now in place are up to date and robust. The Coroners Bill and the Garda Síochána Act will formalise arrangements and responsibilities in a far more transparent and modern manner, which is to the benefit of everyone, not least gardaí who work day and night at the front line in protecting society from those who would murder, maim and destroy innocent people.

I thank the sub-committee for its attention. The Secretary General, Mr. Aylward, my officials and I will be glad to answer any questions asked to the best of our ability.

I thank the Minister. Mr. Séan Aylward is also invited in his own right as Secretary General of the Department. Does he wish to make an opening statement?

The Minister spoke on behalf of both of us. I fully concur with his comments, including, in their presence, the sympathy offered to members of the family on their long grieving for what happened to Seamus Ludlow.

Will Mr. Aylward accept questions from members of the committee?

Deputies Peter Power and Gerard Murphy will commence.

I thank the Minister and the Secretary General for coming. We appreciate their submission to the sub-committee. It is very helpful to us in our deliberations and efforts to ascertain what the policy was at the time and the connection between the Garda Síochána and the then Department of Justice. The Minister's insights into that relationship and how it has changed have been very helpful to us. There is no doubt that the new legislation represents a fundamental and radical restatement of the relationship, which is very much to be welcomed. While I appreciate the Minister's comment that he can be responsible only for current events in the Department which we fully accept and that the relationship now is completely different, our job is to find out, as best we can and within those limitations, what the policy relationship was at the time.

Bearing that in mind, we have received a document which differs slightly from the Minister's address. It is a submission from the Department of Justice, Equality and Law Reform. I do not know whether the Minister has read that document.

I apologise to the members. There was a slight mix-up in regard to the forms. I am aware it presents a difficulty.

Yes, I was trying to follow the Minister's submission.

Deputy McDowell Does the Deputy mean the joint submission?

Yes. I was trying to follow the Minister's submission based on this document rather than the document we received at the end of his speech. Paragraph 2.5 on page 2 of that document states that in the circumstances, therefore, the Department has no reason to believe that any communication occurred in respect of the non-interview of the suspects outside the jurisdiction, much less any instruction or consent to any decision which may have been made within the Garda Síochána not to interview the suspects.

It is this question of communication with which we have been trying to deal in recent weeks with the policy in place regarding such issues. On page 78 of his report Mr. Justice Barron makes the point, arising from his discussions with the Minister at the time, Mr. Collins:

He [the former Minister for Justice, Mr. Gerard Collins] told the inquiry that Deputy Commissioner Wren would have had the authority to refuse permission for Garda officers to attend interviews with the suspects outside the jurisdiction. However, he did not believe that C3 [effectively, Deputy Commissioner Wren] would have done so without consulting the Department of Justice. He described then Deputy Commissioner Wren as a very cautious policeman who was sensitive to criticism and who would not have wanted to get on the wrong side of the Department. He said that the usual procedure [this is what I am getting at] in those circumstances would have been for C3 to make an informal application to Principal Officer Colwell. Collins did not think there were any written regulations governing such applications, and said that it was certainly not a matter for the Government.

Mr. Collins would have expected Assistant Commissioner Wren to discuss the matter with Commissioner McLoughlin. The former Minister's statement that the usual procedure was an informal application to Mr. Colwell conflicts starkly with the document we have received from the Department to the effect that it has no reason to believe any communication occurred. Can the Minister reconcile those different policy positions?

I said the Department had no reason to believe any communication occurred in this specific instance because there is absolutely no trace of one. I am not saying there never was a communication of that type in respect of other incidents or that there was never an instance of C3 or the Assistant Commissioner contacting the Department. Unless I misread the passages Deputy Peter Power quoted, the Department says that, having carefully sifted through everything, there is absolutely no trace of such a communication. If there had been, it is likely some documentary evidence of such a communication would have existed.

That is the very point. In the Minister's document, it is stated, at paragraph 2.4, that the only surviving member of the Department to have been dealing with such matters is Mr. Kirby who regularly held long conversations with Chief Superintendent Michael Fitzgerald in C3. While they would have discussed all of these matters, their communication would have been undocumented. The former Minister, Mr. Collins, says that the usual procedure would involve an informal application. While I have no doubt that there is no documentary evidence of communication, we are trying to understand if there would have been.

I appreciate the Deputy's point. He is saying that if the usual procedure was for such applications to be entirely oral, no inference can be drawn from the fact that there is nothing now in the Department's records. While I take the point, the view in the Department is that if a Minister gave a direction to the effect that these people were not to be interviewed, it is unlikely that one of the public servants in question would not at some stage in the process of receiving a telephone call, approaching the Secretary and the Minister to obtain the direction and returning to the Garda have noted a direction of such importance. In a sense, it is purely speculative because the Department is looking back 30 years at this stage and, with the exception of Mr. Kirby, no one is alive who had any connection with these matters. The view now, however, is that if a decision of such importance was made on a consultative basis with the Department, its Secretary and the Minister, someone would commit the proposition in writing. That argument should be compared with former Commissioner Wren's statement that he has no recollection of this ever happening and that he did not communicate with the Department to the best of his knowledge and belief. All the Department can now suggest is that if a matter of such importance was the subject of a consultation and ministerial direction or approval, it is strange that nobody involved bothered to write a note on it.

Mr. Wren also told us that there was no question whatsoever of gardaí travelling north of the Border to conduct interrogations personally, which statement turned out to be incorrect. We received a submission from Mr. Terry Hynes last week, the content of which surprised us all, to the effect that, as a detective garda, he travelled north of the Border to conduct personal interviews with suspects in criminal cases with the consent of C3. If those interviews took place with the consent of C3, based on what the Minister has told us, it is likely that an official in the Department would have kept a record of any communication, either documented or informal, from C3 to the principal officer in the Department. If we can establish that those incidents of interrogation by gardaí north of the Border took place — we will presently be seeking evidence to that effect — and give details of them to the Department, would the Minister be willing to re-examine the departmental records to ascertain whether there was a connection between the Garda and the Department in that case?

Certainly. If the sub-committee wants to resolve whose recollection is correct in regard to these matters and if, for example, it feels that Garda Hynes's recollection could be corroborated by written records, if they exist, we will seek any specific files for which it wishes us to search. We will co-operate in absolutely any way the sub-committee wants.

On that point——

The clerk has already initiated communication with the Garda Síochána in regard to the documents referred to and the events that took place.

Excellent. With regard to the documentation, Mr. Justice Barron concluded that the Department gave full and total co-operation to the commission, which was expected and which we appreciate. There have been calls for a public sworn judicial inquiry into these matters. Does the Minister believe that the departmental attitude towards the discovery and release of documents would be different if orders for discovery came from a public tribunal of inquiry as distinct from coming at Mr. Justice Barron's request?

I do not think there would be any difference. The co-operation of the Department was complete and wholehearted. There was discussion in the Department when Mr. Justice Barron was appointed. It was not a matter of my giving an instruction; there was a unanimous agreement that he was to be enthusiastically co-operated with and that every file was to be turned inside out to search for any information he might want. He received extensive briefings, which his report reflects. At this stage, the same applies with regard to this sub-committee. If there is material of any kind in the possession of the Department, even on a collateral issue such as that to which the Deputy referred, namely, credibility, we would be happy to provide it.

The Department keeps files of this kind at three locations. It has a security file repository in the departmental headquarters, keeps other files at Santry and gave many files to the National Archives. The Department's archive at Santry contains less interesting material while most of the material that went to the National Archives has not yet been examined. However, all three sources of material are available and we will provide it and assist anybody to search for material that would be of use to the sub-committee.

The sub-committee is not at this time investigating or attempting to resolve conflicts. These could be two mutually exclusive events. We are not in a position to investigate or decide upon matters relating to conflict.

If we can provide assistance in respect of these matters, we will be happy to do so.

May I take it that the filing cabinet in the Department is divided in two, with one part containing interesting files and the other containing non-interesting files? We should try to obtain the interesting files at some stage.

The sub-committee should be aware that the Department has a substantial security file archive. As many of the files are sensitive, we recently appointed a group of academics to act as a consultative committee to ensure that people conducting bona fide research have access to them. We have reorganised and indexed the files and invested a great deal of money on the provision of secure cabinets that are located in a dry and well protected environment. We have gone to a great deal of trouble to sort out the files.

The Minister is reading from the record of Dáil proceedings, as he has done before.

The Deputy is wrong again.

We will not go there.

I have two final points to make. The sub-committee notes the Minister's comments in regard to the inquest and appreciates the forthcoming legislation that will ensure this never happens again. In that regard, the Minister mentioned his deep regret and that of his Department at the manner in which the inquest was conducted and said he believed the family was entitled to be aggrieved with the manner in which it was treated. Does he believe the family is, at this stage, entitled to a formal apology, not only from the Garda Síochána but also from the State? If so, would he be prepared to make such an apology? The Commissioner, Mr. Conroy, apologised on behalf of the Garda Síochána. Does the Minister believe the State, in respect of all its organs, should apologise for what has happened to the family of Seamus Ludlow during the past 30 years?

I can only comment on matters which come within the remit of my Department. In so far as I am responsible for the Garda Síochána, the Commissioner has expressed his regret to the family and has apologised to them in that regard. In so far as the coroner's service or the interaction of all these agencies lies with the Department of Justice, Equality and Law Reform and given that I am the successor to those in office when these matters arose, I am more than happy to formally express my deep regret at the manner in which the family was dealt with.

I thank the Minister for his remarks. However, there is a difference between expressing deep regret and making an apology. Does the Minister agree that the State——

There is a difference in that in expressing my deep regret at what happened, I am apologising. I apologise and express my deep regret for what happened.

I thank the Minister.

I thank the Minister for his presentation. I would like to follow up on matters raised by Deputy Peter Power, namely, the Department's knowledge of this case and the existence of communications between it and the Garda Síochána.

I find it difficult to agree with the Minister's conclusion that some organ of Government was not aware of this case, particularly when one considers the political situation at the time, the fact that the RUC was desperately seeking certain rights south of the Border — requests in respect of which were backed by the British Administration — and the fact that one of the suspects belatedly mentioned by the RUC some 18 months after it received the names of the four suspects was a member of the security forces. Was the Cabinet security committee active at that time?

Who acted as secretariat to the security committee?

To the best of my knowledge, the Department of the Taoiseach acted as secretariat to the Cabinet security committee.

Is it conceivable that there was constant communication, on a day-to-day basis, between the security committee of the Cabinet and the Garda Síochána?

It is very unlikely. I do not know what happened 30 years ago but nothing like that would happen now. If, for example, a bombing outrage was committed by dissidents, it is unlikely that the Garda would keep the Cabinet security committee directly briefed.

The circumstances were totally different then, as the Minister has said. There was a continuous crisis at that particular time. The Cabinet security committee should have been aware of everything that was happening, particularly if there were diplomatic implications. Out-of-state jurisdiction was involved in this instance.

I would like to speak about the period in question. I referred earlier to the Sunningdale Agreement and the Criminal Law (Jurisdiction) Act 1976. I understand that a state of emergency was declared in 1976. I could be wrong, however, it may have been declared in 1975. I have anecdotal knowledge, which does not come from the Department of Justice, Equality and Law Reform, that a significant threat was posed to individual members of the 1973-77 coalition. I remember that from the time. I do not know what happened or did not happen at the Cabinet security committee on a day-to-day basis. I do not know what the committee was or was not briefed about during the period up to 1977. I am not clear about whether the committee would have had any knowledge, between 1977 and 1979, of the investigation of offences that had taken place at least three years earlier. Although the Cabinet security committee was dealing with an ongoing crisis in 1979, it is not necessarily the case that it would have been briefed about the file on a murder investigation that had gone cold since it commenced two and a half years previously. It might have been briefed — I am not saying the Deputy is wrong — but it is by no means a probability in my mind. I imagine it would have been an outside possibility at the very most.

The Department of Justice, Equality and Law Reform does not have any documentary records. Which other Departments were involved in the security committee? Who were the Ministers involved?

I imagine that the Departments of the Taoiseach and Defence were involved.

What about the Department of Foreign Affairs?

It is possible that the Department of Foreign Affairs was involved.

Was all the documentation relating to the committee administered by the Department of the Taoiseach?

I do not know how much documentation relating to the Cabinet security committee was retained in the 1970s.

Has the Department of the Taoiseach checked its files from the security committee of the Cabinet to discover whether there was any communication?

I am unaware of whether Mr. Justice Barron sought such files. I think he concerned himself with the Cabinet security committee in other contexts. He was aware of the committee in the context of, for example, the Dublin and Monaghan bombings. If he thought there was any likelihood that relevant documentation could be acquired elsewhere in the sphere of Government, I imagine he would have sought it.

When the Garda Commissioner attended the sub-committee's hearings, he suggested that if the four suspects who were originally named in the RUC report were to show up in this jurisdiction, it is likely that he would ensure that they were questioned and that the investigation would be pursued again. He made it quite clear that the case is not closed. I reminded him of the changes in circumstances in the last 30 years, such as the new level of co-operation between the two police forces and the Departments on either side of the Border and the new laws that have been introduced to allow prosecution on both sides thereof. I asked the Garda Commissioner, in that context, whether he would ask his counterpart in Northern Ireland to reopen the case. Given that he feels it could be reopened here, I do not see any reason it cannot be reopened in Northern Ireland. What role does the Minister envisage for himself and his Department in pursuing that avenue?

Criminal investigations are primarily matters for the Garda Commissioner and his counterparts. While I have an oversight role and a role at North-South Ministerial Council and Intergovernmental Council levels, I could only become involved if there were some obstacle or absence of co-operation. I do not have direct involvement in Garda investigations. The Garda would primarily be in communication with the Director of Public Prosecutions. If there were some difficulty that required Minister-to-Minister contact, I might become involved. However, it is hypothetical at this point.

The Commissioner gave an undertaking to the sub-committee to discuss the issue with his counterpart in Northern Ireland. The Minister is basically saying that if there is a blockage from the point of view of the British authorities, he and his Department will facilitate the pursuance of their request.

That is the only circumstance in which I could envisage it being necessary for me to take any steps. We do not normally encounter blockages or problems of the kind alluded to and it is, therefore, most likely that this will all happen without any involvement on my part or that of the Department of Justice, Equality and Law Reform.

I thank the Minister.

I welcome the Minister, who made a quite interesting presentation, the Secretary General and other officials from the Department.

My point relates to Deputy Peter Power's question on the procedures that were in operation to allow members of the Garda Síochána to travel to the North, the information we received from Detective Garda Hynes some days ago to the effect that he had been involved in a number of interviews north of the Border and the contradictory information we received from former Commissioner Wren that this type of activity did not take place. We also received similar information from former Deputy Commissioner Joe Ainsworth, who presented us with a document stating, "The correct procedure covering both forces [the Garda and the RUC] was that if the Commissioner required an investigation in the North, the RUC would have carried out the investigation with information supplied by the Garda, but the Garda would not have been present at the investigation". We have received completely contradictory information. Gardaí are not only saying they were present at interviews but that they were also involved in conducting them.

It seems there were arrangements of a formal and informal nature. The former deputy commissioner, who would have been involved in 1979 before the end of the Ludlow inquiry but who — given that he only took up office in December — would not have been involved when it began in February of that year, said he knew nothing about the Ludlow affair and was never informed about it. He stated that, in any event, there would have been no procedure whereby gardaí would have gone to the North to investigate, as attested by former Commissioner Wren. How can we reconcile the contradictory accounts of the procedures?

If the sub-committee requires a firmer view, the best approach is to discuss the issue with people who were involved directly in North-South investigations at the time. I do not want to say, on the basis of Garda Hynes's comments, that former Commissioner Wren's evidence is damaged or vice versa. I do not want to get involved because I believe it is the function of the sub-committee, in so far as——

The Minister wants to examine all these threads separately, without in any way saying that one person is right and another wrong. That is not our function. Our function is to examine these threads.

To return to what Deputy Peter Power said, if Garda Hynes identifies a particular case and date, it would be interesting to see whether there is a relevant paper trail in the Department throwing up material of the kind we now say does not exist. On the other hand, if it is established beyond any doubt that there was interviewing of witnesses north of the Border at the time in question, the matter of whether the Department was consulted is an issue from which the sub-committee might draw inferences in respect of other cases. I am speculating now and I am not really in a position to help very much. However, if a particular file or instance is identified, the Department will help by carrying out a search with a view to identifying whether there is a paper trail of consultation and whether there was departmental or ministerial involvement in other cases in similar circumstances.

This is an area we must pursue. Garda Commissioner Noel Conroy attended a meeting of this sub-committee and told us he conducted an interview of a suspect in Britain regarding a murder inquiry, although it was not into a case concerning subversive activity. How can we trawl through this issue given the anecdotal information to the effect that individual gardaí went beyond their jurisdictions, not only to observe interviews taking place but also to conduct them? Trawling through files is one approach but we just happened, by chance, to hear the submission of a detective sergeant who provided us with information on his experiences in this regard.

That is a matter regarding which the sub-committee would have to address to the Garda Commissioner. One must remember that one is dealing with public servants 30 years after the alleged events. They will not be in a position, either on foot of folklore or intuition, to go to files and start hunting for material unless they are given some kind of lead.

We will send any information we have to the Minister so he can check it.

Yes. If the Deputy comes across an instance of where he believes there definitely was an interview, we will check whether there is a paper trail of consultation at departmental level.

It is a question of alleged interviews. Whether we believe the allegations is another question.

An important distinction must be made. It is quite clear that, in criminal investigations and criminal justice co-operation generally, even during the worst of times some 30 years ago when relations between the two States were very poor, there was tremendous communication between the two forces in the public interest. Gardaí travelled north and senior members of the RUC travelled south, both to promote co-operation and to keep security as tight as possible in very volatile circumstances. It is also clear, on the basis our information from the Garda authorities, that gardaí frequently travelled north pursuing investigations into specific crimes. The divergence of opinion among all the gardaí who have given evidence and information, including former Detective Sergeant Hynes, is in respect of interviewing suspects. Senior members of the Garda are checking out this to see what they can find. We will check it out also, but it is extremely recent evidence. One person has suggested that in some crime investigations there was direct interviewing of suspects and identified two or three cases where it was done directly. This runs counter to the evidence of very senior and respected individuals who have given evidence. There is a divergence on the specific point of directly interviewing suspects held in custody in Northern Ireland. We do not have information that sustains that assertion but it would be worth checking out. It is important to record the divergence which is considerable.

The sub-committee would appreciate the help of the Secretary General in checking it out.

We are willing to do so.

I would like to make one other important point. Whatever else is said today about the former RUC and the politics of the period, but for the co-operation, such as it was, between the two police forces during that period and since, many more, North and South, would have died. During difficult times members of the Garda Síochána and the RUC maintained co-operation which, in my view, saved lives. It is tragic that in this instance that was not the outcome, that justice did not prevail and the perpetrators were not brought to account. We need to remind ourselves of that element today.

Does Mr. Aylward believe there was informal co-operation between individual gardaí and police officers in the North in order that they could help each other to resolve issues?

I believe there was. This was always understood and accepted by officialdom. It was in the interests of protecting lives and preventing crime, North and South.

Would that informal co-operation have gone as far as gardaí being present in a police station where interviews were being held?

I believe so. The nub of the matter is whether gardaí were in the interrogation room or whatever place the prisoner was held directly interrogating him. One person, Mr. Hynes, has stated this happened and suggested it was almost routine.

That is being checked out.

That is an important issue which I will pursue. There is a divergence on it in the statements of those in senior positions and those working on the ground. Obviously, there were quite a number of other gardaí who would have been to the forefront in the investigation of subversives at the time. We heard one person's presentation that on a number of occasions he conducted interviews or was involved in interviews across the Border. We cannot bring in every single garda who would have been involved in such criminal investigations to ask each of them about their experience and if they had knowledge of a suspect across the Border. Will the Department provide the sub-committee with assistance in that matter? This is a critical point in regard to what happened at the time and how the investigation was brought to an end. One set of authorities is stating that there was no way suspects would have been interviewed across the Border, while people on the ground seem to be saying it was common practice to travel across the Border and conduct interviews. That is the salient point that we need to determine.

I wonder if we need to have this checked before we go further in investigating that particular incident.

The Commissioner has shown the sub-committee great co-operation. The sub-committee should take up the matter directly with him. The Department is out on a limb on the issue.

In that case we will pursue it.

An issue raised on a number of occasions concerns a directive issued in November 1953. It is referred to on page 79 of the report, footnote 71, the terms of which relate to police officers from the RUC in the other jurisdiction, but which seems to have been interpreted by the former Commissioner and assistant commissioner as covering gardaí in terms of reciprocal arrangements. The last paragraph which refers to offences of a political nature states "arrangements should not be made whereby members of other police forces can interview persons in this country or accompany members of the Garda Síochána making such inquiries". That seems——

Will Deputy Costello read the first two paragraphs to put the matter in context?

The directive was issued in 1953. It reads:

In accordance with established practice, reciprocal arrangements exist whereby members of other police forces may visit the area of the Republic to pursue enquiries into ordinary crimes committed in their area, interview suspects witnesses etc ...

In all such cases, the members of the other police force should be accompanied by a member of the Gardaí of same rank as visiting officers, who should remain present as far as possible at all interviews with members of the public.

In the case of crimes or offences or enquiries of a political nature, arrangements should not be made whereby members of the other police forces can interview persons in this country or accompany members of An Garda Síochána making such enquiries. In these cases, any enquiries which are considered necessary to be made should be made by Gardaí themselves. The result of any such enquiries made by Gardaí should not be communicated direct locally to the police forces concerned, but forwarded to the Commissioner (3C section).

In effect, the circular states that when dealing with offences of a political nature, the position is that arrangements should not be made whereby members of other police forces can interview a person in this jurisdiction. The interpretation of the former Commission, Mr. Wren, was that it was a reciprocal arrangement in regard to any member of the Garda Síochána leaving the jurisdiction. We heard anecdotal information that this directive was breached in some cases. Does the Minister know about this directive? Was it widely circulated at the time? Is it still in operation or has it been superseded by another directive? Is it a reciprocal arrangement or does it only operate when members of another police force are coming into this jurisdiction?

I understand it was an internal Garda circular, not a departmental one. We have not yet located any copy that was sent to the then Department of Justice, which is not to say such a document might not have been sent to it. Quite clearly, it deals with a sensitive subject and I would be surprised if the Department was utterly unaware of such a sensitive direction being given. On the question of reciprocity, it seems that it was bound to be a reciprocal arrangement. The last paragraph was bound to be reciprocal.

It is a serious matter where the visiting police force members might be seeking to interview a suspect in this jurisdiction. Are there rules and regulations now in place?

The Deputy will have to remember the phrase used that members can interview persons in this country or accompany members of the Garda Síochána when making such inquiries. That certainly did not, in my view, relate primarily to interrogating persons in detention. It would have covered door to door inquiries or inquires of that nature. From the look of it, it seems to be people trying to sort out alibis rather than people interrogating suspects in a context of detention. That is what I would draw from it.

That seems a very benign interpretation. We are talking about C3, the security and the subversive section.

No. If one looks at the first paragraph, it is about "ordinary crimes committed in their area, interview suspects witnesses etc..."

Then we move on to the subversive section.

It reads:

In accordance with established practice, reciprocal arrangements exist whereby members of other police forces may visit the area of the Republic to pursue enquiries into ordinary crimes committed in their area, interview suspects, witnesses etc.....

In all such cases, the members of the other police force should be accompanied by a member of the Gardaí of same rank as visiting officers, who should remain present as far as possible at all interviews with members of the public.

That is different from a garda here arresting somebody to make them available to what would then have been an RUC officer for interrogation. We should be careful that we are not talking about slightly different things. The notion that a garda would arrest somebody in the South and use them for interrogation——

Any interpretation that has come to us from the former Commissioner has been that this related to interviews and interrogations and that this was the basis on which they were making arrangements, that they would be forbidden to allow officers to go North to interview or be involved in the interviewing of suspects. In other words, the former Commissioner's interpretation was that it was less benign than the one the Minister has made, that in fact it was in regard to interrogation.

I quite agree with the former Commissioner that it would seem to rule out the kind of activity he is talking about. I am just saying that the statement that members of the Garda Síochána should be accompanied by a person of the same rank who should remain present as far as possible at all interviews with members of the public does not necessarily mean that it was a——

It does not rule it out either.

No. I agree it does not rule it out.

Can we determine what pertains today in regard to an external police force requesting to interview a suspect in this jurisdiction or any of our Garda members seeking to interview suspects in another jurisdiction?

There are joint investigation teams legislation under the EU which has nothing to do with these procedures. There is provision now, under law, for the establishment of joint investigation teams. Where somebody has been arrested in the Republic for a serious offence, obviously in certain circumstances, there is a facility where people who are involved in a collateral investigation abroad would be in a position to come to the Garda station to hear what the gardaí were up to. We do not have a situation where anybody can simply be brought to a Garda station for interrogation by others. That is not done. The Deputy may recall that a newspaper suggested that was going to happen with the CIA.

I think the Minister denied that.

Could we get some information on this? There seems to be quite a lot of confusion surrounding this directive. Can we get some hard and fast information from the Department as to whether it is able to determine for us what procedures exist? This is policy. What policy operated in 1976 and in 1979 in regard to extra-jurisdictional investigations taking place where the Garda was involved in terms of suspects that might be in Northern Ireland or vice versa? Perhaps the Minister would have a look at it and come back us on anything he may be able to find.

We will consult the Commissioner and look through our own documents to see if we can be of any assistance and will come back to the committee about it. It is now 50 years since that document was issued.

That is at the nub of the whole report and it is important that we get as much information as is available to the Department on that matter.

Is the security committee still in existence?

There is a security committee.

What Departments are involved in it?

My Department, the Department of Defence, the Department of the Taoiseach and the Department of Foreign Affairs.

Does it meet often?

It meets more often at an official level, but it does meet often. I have never seen minutes of a meeting.

To discuss Stormontgate.

That explains the missing files.

It would look like that if you were Secretary General.

I discovered when I was Attorney General that there is a practice in the United Kingdom for the private secretary to a Minister or the Attorney General in England to listen in to every phone call and to make a copy of it. I got such a shock that day that I came hot-foot back to Dublin and asked if this happens in my Department and I was told it does not.

I have two more brief questions. There are no files and, therefore, it is very difficult for the Minister to say anything about what was happening at that time in terms of the Department. There was a file in 1976. There was a file in 1998 but there was no file in 1979 in the Department. Could it be that there would have been a file and that it went missing? It seems unbelievable that, when there was information available for the first time in respect of a serious murder investigation with the suspects identified and we were coming with hot information, no file would have been put in place in the Department.

There are two things. Of course a file can go missing but we create an index entry for every file that comes into existence. There is no file and no index entry. That is the first thing. If a file had come into existence and had been taken home by somebody in his or her briefcase, either innocently or maliciously, he or she would also have had to go to the index in the Department and remove the entry for that item. The other point one has to remember is that if a file of that kind was there, unless it was purely a minute in the Department, it would normally be a communication to and from, say, Garda headquarters. The equivalent is that if there was documentation of any kind used at that end, it would have to be filed somewhere or a new file created at that end as well. The point is that there is no file in either place and no document in either place and no reference to a document in either place and no index for a file or a document in either place suggesting that there were documentary exchanges at the time. The likelihood is that there was not a separate file. The other possibility is that the 1976 file was used and added to and then subtracted from. That is a possibility, but there is no evidence on the 1976 file that any material of that kind was ever on it and removed. We feel at this stage the odds are that there was never any such file.

Are all the offences for that period?

Yes. They are all offences for that period.

Considering that no serious investigation took place in regard to the killing of Seamus Ludlow and that the Garda was at fault — it is very difficult to determine at this remote stage who was responsible — is there still not a duty on the State to ensure that an investigation takes place into this matter? There is duty under Article 2 of the European Convention on Human Rights to ensure that a meaningful investigation takes place. The family's request is that this should be in the form of a public inquiry. Will the Minister state his views in regard to all these matters? The investigation that should have taken place did not take place. The State was responsible for it not taking place and it is the family's view that the only way a meaningful investigation can take place is by having a public inquiry.

Let us be clear. In 1976 a very competent investigation took place. Mr. Justice Barron has no quarrel with the original investigation. In 1979 material became available in Northern Ireland. On pages 44 and 45 of the report there is a description of what happened with the Director of Public Prosecutions in Northern Ireland on this issue. On page 85 Mr. Justice Barron, in his conclusion, states:

In 1999, the DPP for Northern Ireland decided not to prosecute the four suspects named in 1979, on the basis that there was insufficient evidence against them. On the basis of the information available to it, the Inquiry accepts that this was a reasonable decision. The following factors would have supported it——

I do not want the Minister to mention the names of the suspects.

The four grounds are set out. I do not want to put names into the public domain. There were problems with the quality of the evidence available in 1999 to the Director of Public Prosecutions in Northern Ireland. There are questions we must now ask ourselves. As the Commissioner has said, the file is not closed. If new evidence were to become available, this is still a prosecutable offence.

In 1999 the DPP in Northern Ireland, who looked into the matter very carefully, came to the conclusion that there would be problems in prosecuting the individuals in question. It is undoubtedly true that if in 1979 or 1980 a full-blooded inquiry had been put in place different evidence might have been available or the case could have been stood up differently. I have no doubt the committee would be of that view. However, we are dealing with what is available now. The decision to prosecute or not to prosecute is ultimately for the DPP here or the DPP in Northern Ireland. They are independent. Our Director of Public Prosecutions concurred with the Northern Ireland Director of Public Prosecutions on this issue.

The real question is whether, in a case which was not prosecuted, for whatever reason, including default on the part of police forces in any jurisdiction, it would be appropriate to set up a tribunal of inquiry ten, 20 or 30 years later, the effect of which would be to conduct a non-criminal investigation of the people in question to effectively find out whether they did or did not participate in a criminal offence. This is something the committee must decide. I am not a member of the committee and have not been asked by the Oireachtas to consider this point. The committee has counsel here to advise it. However, there are serious constitutional issues in having a public inquiry directed towards establishing whether somebody did or did not commit a crime five, ten, 15, 20 or 30 years ago. That is the issue the committee must consider. My judgment is not relevant. The committee's judgment is relevant and it will receive expert advice on this.

I offer the opinion that if the committee came to the broad conclusion that the investigation in 1979-80 was deeply unsatisfactory, and also that the DPP in Northern Ireland was right in 1999 in stating that he did not have enough material on which to prosecute and the Republic's DPP was correct in concurring with that decision, it still does not follow that it would be lawful for the Irish State to establish a tribunal of inquiry effectively to mimic a criminal trial and to come up with a conclusion as to whether or not named individuals were the perpetrators of the appalling murder of Seamus Ludlow. It does not follow that a tribunal of inquiry is available at the end of that process.

I notice that there is a vote on the Order of Business in the Dáil which I presume is on the Second Stage of the Finance Bill. Members here have been paired but I do not know what the Minister's position is.

I am not formally paired.

If it were another Bill I would not be worried. There are others here. We can go ahead with Mr. Aylward in the meantime.

I will come back after the vote.

On a matter extraneous to what we have been discussing, Séamus Ludlow was not only a loved family member but he was also a provider for the family with which he was living and for the wider family. Although it would be small, a token compensation to a family for the loss of a loved one, is there a way even at this remove that some compensation could be paid to the family, perhaps under the Criminal Injuries Compensation Tribunal?

There are two mechanisms which could lie open to the family. Nothing can bring back a loved one or give recompense for the suffering the family has endured. The Chairman has identified the primary and long-established mechanism, the Criminal Injuries Compensation Tribunal. There is another mechanism which flowed from the Good Friday Agreement. That is the Remembrance Commission which also attempts in a modest way to address the needs of victims of the conflict in Northern Ireland and their families in this jurisdiction. If the Chairman agrees, I propose to give the contact details for both the Remembrance Commission and the Criminal Injuries Compensation Tribunal to the committee and perhaps the clerk to the committee could pass them on to the family.

The payments which come from the Remembrance Commission fall under a number of headings. They include acknowledgement payments to bereaved families of persons who were killed in this jurisdiction. There are economic hardship payments which are paid, subject to certain conditions, to spouses and dependent children. That could be interpreted in a number of ways given that although Seamus Ludlow did not have children, there was a dependency relationship that might need to be explored. There are payments for certain vouched, unmet or continuing medical expenses, which might not have been covered by any other body or agency. There is funding for memorials. There were two potential avenues in the bodies mentioned which, following a preliminary check, the family or its representatives did not pursue. While I do not wish to raise hopes or expectations, I suggest these are two avenues which might be considered by the family and its representatives. We will remit the contact information to the clerk to the sub-committee.

I thank Mr. Aylward and his staff for attending today. Mr. Aylward mentioned the co-operation between the Garda and the RUC which seemed to be sound, if on an informal basis. If co-operation was so good in the exchange of information, why was there a ban on interrogation?

To be candid, there are good reasons in law, legal tradition, custom and practice underpinning the rule that the lead role in any interrogation should be taken by the properly authorised police force of the jurisdiction in which a person is held. For a confession or statement of admission to have full evidential value in the courts system in which someone might be facing trial, it should come from the duly authorised police officer. This point was reflected in the evidence of former Deputy Commissioner Ainsworth. If people were to lead an interrogation in another jurisdiction, they would be facing a hazard and lack full authority under the law of that jurisdiction. I do not put a particularly sinister interpretation on this matter. It should be remembered that we are speaking about a period in which the idea of joint investigation teams was not extant. European and criminal law have since evolved. Intuitively, my feeling is that the logical authority to conduct an interrogation lay with the police force in possession of a suspect, perhaps with advice and support from policemen from another jurisdiction who might possess more first-hand knowledge. I would not put a negative construction on the matter.

The pursuit and interrogation of individuals involved in politically motivated crimes were sensitive issues. A significant number of atrocities were taking place in Northern Ireland at the time and public feelings ran very high, as articulated by the British Government. Demands were made as to the levels of co-operation with which a sovereign state, then or now, would have found it difficult to comply. It was felt within the Garda that in that context investigations should be managed centrally and carefully by the organisation. It is hard to quarrel, even at this remove, with that approach.

It is important to welcome the apology of the Minister for Justice, Equality and Law Reform to the Ludlow family. With successive Governments, we should all take collective responsibility in apologising to the family of an Irish citizen who was treated dismally. Those who fudge issues such as this should not be involved in public life. The family is seeking truth and justice.

Mr. Aylward has said that during the 30 years of violence in the North co-operation between the Garda and the RUC was very important. While he made the point that it saved many lives, there is a further aspect to the matter. There are people within the Northern minority and the South who had significant concerns about allegations of collusion which have subsequently been to be proved correct in the Dublin and Monaghan bombings and Pat Finucane cases. Members of the security forces and British regiments were involved with loyalist death squads. From a security and policy point of view, this state of affairs was unacceptable. Were successive Secretaries General in the Department aware of this basic conflict of interest on the British side?

I cannot speak about the state of mind of those who led on that side of the Department in the period as, sadly, they are no longer with us having passed on to their reward. In common with successive Administrations in Dublin, however, the Department was very keen to promote the police reforms advocated in the Patten report and would have supported our colleagues in the lead Department, the Department of Foreign Affairs, in pressing for justice for people in Northern Ireland whose murder or assassination was believed to have involved an element of collusion by persons linked in some way with the security forces, whether as informants, agents or otherwise. The Government's position continues to be that families such as the Finucane family require a full independent inquiry into all the circumstances and accusations which arise. The Government supports the recently established investigation exercise the PSNI is conducting into cold cases. A very large team of approximately 200 officers has been appointed to carry out the investigation. I do not wish to speculate as to the state of knowledge or mind of those involved at the time.

Does Mr. Aylward think a blind eye was turned to collusion by certain elements within the Department?

I do not.

It was a nasty, murky affair and there are deep suspicions among the public, human rights activists, lawyers and journalists.

I have been a public servant for 32 years and during my career I have had contact with people such as Mr. Ward and Mr. Colwell, even though I was in a different Department at the time. To defend them, they were men of honour who would not have turned a blind eye to anything.

That is the question I was asking.

They were men of honour who served the State very well. There is no reason to believe they would in any way have turned a blind eye to anything. Whatever deep misgivings there may have been about the structure of the Northern Ireland state and the deficiencies in the governance and accountability of the RUC, it is my belief co-operation and information sharing between individual police officers on both sides of the Border checked what could have been an even greater number of atrocities and greater suffering. It is important to recognise that truth.

Equally, I am telling the truth from the other side. When he spoke about the Department and the running of the Garda in 2006, the Minister said everything was up to date and robust compared to 30 years ago. Does Mr. Aylward contend matters have changed radically for the better in the structures and services provided for the citizens of the State by the Garda and his Department? Is Mr. Aylward saying that the structures and services to the citizens of the State have changed radically for the good within the Department of Justice, Equality and Law Reform and the Garda Síochána? Is he satisfied with the security system in regard to filing in the Department? Is it still easy for people to get access to files in the Department?

I am not sure that I fully understand the Deputy's last question. If it was easy for people to get access to files in the Department, we would be grossly deficient. It should not be easy for people to get access to files in the Department.

Are we talking about authorised or unauthorised persons?

I referred to unauthorised persons. I have no problem with authorised persons having access to files, particularly interesting files.

The Minister and I are trying to meet the debt to history of the Department, which has been historically the repository of information regarding serious and interesting criminal and social matters since the 1920s. We feel that we should try to facilitate access by legitimate historical scholarship to files that are more than 30 years old which, for reasons which were important at the time, were kept out of the National Archives. This might have been because the players — the people involved — were still active or living or, in some cases, because of the stress that might have been caused to those involved or their immediate families due to the content of the files.

We have decided to move towards a situation where the historical picture of the period up to the 1970s can be made more complete. In that regard a group of respected and independent scholars have been assembled to review the situation and, hopefully, help to improve access to the historical record of the material which we received from the Garda Síochána over that lengthy period.

Is the Secretary General satisfied that a system is in place so that access to files by unauthorised persons, including journalists, will not happen?

We have a robust security system for the secure holding of the Department's files and unauthorised access to those files is not something which we would in any way be lax about. While every interior ministry or department of justice in the world must be continually vigilant, we have a robust file-tracking system on the security side, the strong rooms used are effective and the rooms where staff work are heavily secured.

On a note of clarification, the main files holding criminal intelligence and live information about criminals and criminal activity are held by the duly authorised agency of the State, the Garda Síochána. The knowledge and the information is either in the heads of members of or on the files managed by the Garda Síochána. It acts as the agency which pursues crime and criminals; the Department does not. There is a duty of democratic accountability and control which is reflected more fully in recent legislation. I refute any suggestion that there is micro-management of Garda investigations by the Department or its officers — that is not the case.

Mr. Aylward stated that there was potential access to supports for the families from the Remembrance Commission. I was under the impression that this process had already begun. Is Mr. Aylward suggesting that the families have had no contact from the Remembrance Commission or the Department of Justice, Equality and Law Reform in the past 20 years?

It was not the function of the Remembrance Commission to make contact with families. It advertised and families made contact with it.

So the onus was on families to contact it.

I stated that we had checked and, to the best of our knowledge, the family had not responded to the public advertisements of the commission, which remains in place and is fully funded and open and receptive to applications from people in their situation. I undertook to give the contact information to the secretary of the committee, who has been talking to the family.

Does the Minister think the suspects could have been charged by the RUC in 1976 under the Criminal Law (Jurisdiction) Act?

I do not know when the 1976 Act came into effect. I presume there was reciprocal legislation north of the Border, although I am not clear on that point or on when the RUC came into possession of information which pointed the finger specifically at those people.

It was in 1979.

The law would have been in force at that stage. If there had been a collaborative effort and if those people had been arrested and made statements at the time, in principle such a prosecution would have been a possibility. Whether it would have been brought would have been a matter for independent decision by the DPP. Another point to remember is that where a person is charged with an offence under Irish legislation, and I presume under Northern Ireland legislation, one can opt for trial in the other jurisdiction.

I thank the Minister and Mr. Aylward for their assistance. The committee is interested in two issues, first, the files and information which the Department would have had and, second, the policy issues of the day. I refer the Minister to page 70 of the Barron report, which deals with the Department of Justice, Equality and Law Reform and comments by the former Garda Commissioner, Pat Byrne. He stated it would be unlikely that there would not have been communication with the Department with regard to interviewing suspects. Page 71 of the report, in regard to former Garda Commissioner Byrne, states "that telex messages were sent to the Department of Justice from the outset of the investigation, and that a copy of the investigation file was also sent in due course". The commissioner also stated that this would probably have been the situation since 1969.

That is a very clear statement from a former Commissioner. It suggests that there would have been telex messages with regard to the investigation and the copy of the investigation file sent to the Department. Will the Minister comment on this?

All of that material was available, was on file and was given to Mr. Justice Barron. It is not a contradiction of his position that this line of communication was open at the time.

The real question is whether somebody lifted a telephone and communicated the information in 1979 but nobody took a note of any kind or got a verbal indication as to what course was or was not to be taken, and who were parties to that process. All one can say is that this was 30 years ago and people's recollections are obviously faulty now. Mr. Kirby states he has no recollection of that issue having arisen, and he is the only extant person with living memory of the issue. There is no trace of a written record, note or minute of such an issue arising and being considered or to suggest it happened. One can draw a number of inferences either way from this. It is theoretically possible that everybody's memory has slipped on the issue and that there was such a telephone conversation.

I refer the Minister to Mr. Wren's evidence to the sub-committee. He stated, in reference to meetings with the RUC, that a copy of the minutes would have been made available to the Department. Following further questioning from the Chairman with regard to communications between C3 and the Department in respect of concise or comprehensive reports, Mr. Wren stated, "It would be told whatever we knew." When asked how often that would happen, he replied, "It could be several times a day depending on the activities going on." It would appear the information was passed on or, if it was not, that there would have been an understanding in the Department that it was not to be pursued for policy reasons. That is the kernel of the issue.

First, one must bear in mind that Mr. Wren denies that the transaction took place.

Everybody has acknowledged that the letter of 30 January was received by C3. We are trying to discover if that information filtered through to the Department. Mr. Wren stated that almost everything C3 had would have been made available, either by way of correspondence or verbally — as he suggests happened in this case — to the Department.

The letter, in all probability, never reached the Department because had it done so, it would have been put on file. That would have been normal procedure and there would have been no reason at the time for this not to have happened. It is all a bit of a mystery and an enigma and speculating about it leaves me faced with the same problem faced by others, namely, that there are a number of distinct possibilities. The direction taken by Mr. Justice Barron was contradicted by Mr. Wren. The only thing I can say for certain is that there is no file, no documentary evidence and no folklore memory which suggests the matter was considered by the Department. That does not suggest conclusively that a verbal communication did not take place.

Does the Department have a file on the Ludlow murder?

Yes. It includes telexes and the Garda Commissioner's original investigation report of 1976.

I will move on to the second aspect in respect of policy, which might explain why some of the documentation was not forwarded.

Deputy Costello dealt with the 1953 directive. Interestingly, Mr. Wren referred to it as the reason there was no interrogation of suspects outside the jurisdiction. Other members of the Garda Síochána with whom we spoke were, without exception, unaware of that directive. However, we were told in discussions that the directive would have been superseded by the 1965-1983 Garda code. Would the preparation of the Garda code — I know it has since been updated — have involved discussions with the appropriate section within the Department at the time?

Is the Deputy referring to the Garda code?

Yes. Would departmental officials have been involved in discussions on the preparation of the Garda code?

There would have been no such discussion. Has a search been undertaken in the Department for a file that might indicate if it had any involvement in the preparation of that document?

I could not possibly answer that question off the top of my head. We will undertake a search to see if such a file exists.

I ask that question because the former Commissioner, Mr. Pat Byrne — or it may have been Mr. Thomas Ainsworth — told the sub-committee that any prior directives would have been incorporated into the updated Garda code. It would be interesting to find out if that Garda code contains any reference to going outside the jurisdiction to interview suspects or to the modus operandi for allowing outside police forces to interview suspects within the Republic.

That question may be more appropriate to the Garda Commissioner. However, I will check for the Senator to see if the Department was consulted about the Garda code in its totality, whether there was any discussion or record of decisions made on the issue and whether the 1953 directive is reflected in 1965 code.

The Minister might also check if the relevant paragraph is reflected in the code.

We would also need to know if the code was updated between 1965 and 1980 because we were led to believe it was updated on an ongoing basis as various issues arose. Any information in that regard would be helpful.

I appreciate that it is difficult for the Minister to comment on policy matters of 30 years ago. Unfortunately, however, we do not have the assistance of the former Commissioner, Mr. Patrick McLoughlin, or of the only surviving official in the Department, Mr. Kirby, as they both declined to attend the hearings.

The former Minister, Mr. Gerry Collins, attended the hearings.

Yes. The former Minister, Mr. Gerry Collins, stated that the policy of the day was in line with what we have been told in terms of Garda not being permitted to go North to interrogate suspects. He also spoke about the reciprocal issues which would have been sought by the police force in the North — the RUC — with regard to hot pursuit across the Border, helicopter incursions and interrogating suspects in the Republic. Does documentation exist in the Department in regard to policies concerning those or related issues during that era? Has a search been undertaken to identify any files that might provide some elucidation of the situation at the time?

Again, I do not know. I would be surprised if there was no documentation on that subject within the Department. Issues such as hot pursuit and mutual demands of the two jurisdictions on each other must have featured on the radar quite frequently.

It would be helpful to the sub-committee if the Minister could pursue that matter. If the four named suspects were brought to trial, would they, even at this stage, be able to claim privilege under the Good Friday Agreement?

That is a matter on which I would not like to hazard a guess. It is possible they could do so. It is equally possible they might not. It would depend on the nature of the venture and the picture painted by the evidence. If it was a gratuitous act of motiveless murder, then an issue arises in terms of whether the person accused and convicted would be a qualifying prisoner under the legislation.

Does the Minister mean the sentence would come under the terms of the Good Friday Agreement?

Yes. We are speaking about the early release of prisoners. We have not yet dealt with the "on the run" issue as the sub-committee will appreciate. Issues such as persons convicted of offences subsequently claiming their convictions come within the terms of the Good Friday Agreement are being considered by a committee. I do not want to prejudge what will be the result in that regard. If there was a type of quasi-political or quasi-terrorist angle to the case, that might point in a particular direction. If it was just a gratuitous act of semi-drunken viciousness with no connection to the broader Troubles, as we call them, it may be that the person concerned would not be found to be a qualifying prisoner.

I thank the Minister for the valuable time he has given the sub-committee. I know he has a busy schedule. We appreciate his attendance at this meeting which will be of great assistance in our deliberations. I also thank Mr. Aylward for coming to this forum again. We understand his time is precious. His attendance at this meeting was valuable. The sub-committee will reconvene at 1.30 p.m. when it will hear from Mr. Ed Moloney who is a journalist.

Sitting suspended at 12.40 p.m. and resumed at 1.35 p.m.

I welcome Mr. Ed Moloney and Mr. Francis Kennan. On 8 and 15 March 1998, The Sunday Tribune published articles by Mr. Moloney which focused on the death of Mr. Seamus Ludlow. The articles were based on information given to Mr. Moloney by one of the men interviewed by the RUC in connection with the murder. Details of the articles are given by Mr. Justice Barron on pages 43 and 44 of his report. I remind Mr. Moloney and Mr. Kennan that while members enjoy absolute privilege in these proceedings, those attending as witnesses have only a qualified level of privilege. The protection provided to them is not the same as that afforded to Deputies and Senators. I invite Mr. Moloney to address the sub-committee.

I thank the sub-committee for inviting me to address it today. I have only recently been able to read the full Barron report. I notice that Mr. Justice Barron made several references and comments about my journalism in regard to the Seamus Ludlow scandal. Mr. Justice Barron could have invited me to address him about Seamus Ludlow. He was in correspondence with me about articles I had written in The Sunday Tribune regarding the Dublin and Monaghan bombings. He had all my contact details in New York. I would have been happy to speak to him if he had contacted me but he chose not to do so. He was happy to come to conclusions but he was not able to check them personally with me. I am pleased that the sub-committee has given me the opportunity to restore the balance.

In no way does the sub-committee impute anything against Mr. Justice Barron in this regard.

Nor do I. I have called the Seamus Ludlow affair a "scandal" because that is what it is. If the members of the Ludlow family were wealthy or had political connections, I doubt they would have had to wait nearly 30 years for this day. As ordinary and vulnerable working-class citizens of this State, they were treated in a most abominable fashion simply because they were weak and could not fight back. Apologies this late in the day from those who abused him and them are simply not good enough. Only a full public inquiry, with all the necessary powers, can even begin to make recompense to them for the ordeal they have suffered. Today, I gladly associate myself with those demands made by his family and human rights groups.

There is an elephant in the room and everyone is pretending it is not there. It is time to talk about that elephant, not least to ask whether it is real or merely an illusion. For this or any other investigation to probe the killing of Seamus Ludlow without examining this issue, to leave the question unasked or unanswered, would render the investigation incomplete and deny the Ludlow family justice. No matter how awkward, embarrassing, inconvenient or even irrelevant in some eyes, the question must be asked and answered because, if we are honest, we all know it has lurked, sometimes unspoken, sometimes not, in the minds of every person who has had anything to do with the attempt to establish the truth behind the events of 2 May 1976. The elephant is the possibility that Seamus Ludlow was killed by a loyalist paramilitant who was working as an agent for British intelligence and whose role was covered up by them, with the assistance of elements in the Garda Síochána. It derives both from the realities and history of the dirty little intelligence war that was fought in the North and from many of the circumstances of the Ludlow killing and especially its aftermath.

There is no doubt that the British have attempted over the years to place numerous agents at all levels of the Garda Síochána, but especially in its intelligence sections. There have been many allegations to this effect, including a number of Garda inquiries into them, some involving figures whose names appear in the Barron report. Indeed, there is one allegation that the head of the Garda Síochána at the time of the murder of Seamus Ludlow, Commissioner Ned Garvey, was at least a friend of British intelligence who met with British military operatives in Dublin and handed over to them intelligence material.

I again ask that Mr. Moloney not name people, whether alive or dead, in any way that would impute wrongdoing.

It might be remembered by the committee that the said Commissioner was suddenly, and for reasons never properly explained, dismissed in 1978.

I must ask Mr. Moloney to cease talking about that particular gentleman and to move on to the next paragraph of his submission.

I submit for the committee's consideration an excellent article on the issue written by Mr. Don Mullan in 1999.

Much is made in the Barron report of the political atmosphere of 1979 and whether the Ludlow suspects were not interviewed by gardaí for fear of setting a precedent that would redound to the benefit of the RUC. I suggest that more attention, in fact the focus, should be sharply directed to the political atmosphere of 1976 when fear in this State that the conflict in the North would pour across the Border and overwhelm society here was at its height and when, not coincidentally, alleged Garda-British intelligence collusion is said to have been at its height. This may or may not provide a better explanation as to why the 1976 Ludlow Garda investigation got nowhere and why again in 1979 it went nowhere, rather than the unsustainable theory advanced in the Barron report. I do not know whether this furrow will prove fertile or barren, but I do know that any proper inquiry into Seamus Ludlow's death would be failing in its duty if it was not ploughed.

The evidence given to these hearings by witnesses from Justice for the Forgotten has blown a large hole in the 1979 explanation advanced to and by Mr. Justice Barron that RUC special branch information was not followed up in order to prevent RUC detectives coming South. It is clear from research undertaken by personnel from Justice for the Forgotten that there were numerous instances in which gardaí travelled North or RUC travelled South to conduct interviews in each other's police stations and that there was no policy preventing this. If there was no policy, then the Garda defence presented to the Barron inquiry and to this committee is baseless and an explanation must be sought elsewhere. Researchers from this group, which I presume is not the best resourced in the world, were able to dig out this information with relative ease. It is a great pity Mr. Justice Barron was not able to do the same.

A related issue is the missing, or non-existent, files which Mr. Justice Barron says have disappeared or never existed in either the Garda special branch or the Department of Justice, Equality and Law Reform. An outside observer might be tempted to paraphrase Lady Bracknell and say that to lose one set of documents is a misfortune but to lose two is alarming. To lose them in two separate inquiries must be no less than downright suspicious. Mr. Justice Barron appears content to have accepted the explanations given by the authorities and to have made no attempt to carry out his own independent research. That is both unfortunate and disturbing and together with his lack of research into the 1979 matters raises an important issue. The British have digested the painful lesson in regard to inquiries such as this, namely, that the best way to promote confidence in an inquiry's independence is to introduce a strong international, impartial element. That lesson is even more relevant for this committee. This State is small and the relationships, loyalties, antagonisms and hostilities are held very close to each other here, to close to create confidence in the outcome of a super-sensitive and controversial inquiry such as that into Seamus Ludlow's murder. I firmly believe that an outside police force, not the Garda Síochána, should have been put in charge of the re-investigation of the killing. I also believe that an international judge should have performed the function carried out by Mr. Justice Barron. Should this committee recommend a public inquiry its panel should reflect Ireland's membership of the European and international communities. It has nothing to lose and everything to gain.

I would like to return to the elephant in the room. We now know that Seamus Ludlow was shot dead by a gunman from the Red Hand Commandos, a small east Belfast-North Down loyalist group associated with a much larger Ulster Volunteer Force and which was founded and led in those days by Mr. John McKeague, a one-time political ally of the Reverend Ian Paisley. The trigger man, identified in the Barron report as No. 3, had a fierce, almost psychopathic reputation in and around Bangor, from where he came. When arrested by the RUC in 1998 for the Ludlow killing, he assumed, he later told a reporter, that he was about to be quizzed about the murder of Máire Drumm, the Sinn Féin vice-president shot dead a few months after Seamus Ludlow. He had been arrested before, on the word of a supergrass, for the Drumm killing. Máire Drumm, it should be remembered, was particularly detested by British security forces. There are suggestions that No. 3 was targeting an IRA member the night Seamus Ludlow died and chose him, a random victim, when his mission failed. No. 3 has been living in England since the late 1980s. A few years ago, when I asked UVF sources why he had left Northern Ireland I was told he had departed under a cloud. When I asked if this meant he was regarded as an informer, I was told that it would be reasonable to assume that.

This is not as far-fetched an assertion as it sounds. As everyone knows, the Pat Finucane scandal has, as one of its central characters, a UDA intelligence chief known as Brian Nelson who was run as a double agent by British military intelligence at that stage. He was given free rein to murder or organise murder. Pat Finucane was shot dead in 1989, 13 years after Seamus Ludlow. This type of cold-blooded behaviour is not confined to loyalists. An IRA agent, Freddie Scappaticci, also run by British military intelligence, was allowed to kill colleagues falsely named as informers in order to protect real agents. Is it credible to believe that this type of activity did not go on in 1976 when the IRA's war was raging with even more ferocity?

The policy of Ulsterisation, in which control of security and intelligence matters was shifted from the British military to the RUC, formally began, ironically, on 1 May 1976, the day before Seamus Ludlow's murder when Sir Kenneth Newman was appointed RUC chief constable. Until then, the recruitment and running of agents and informers was a business exclusively under the control of the British military intelligence units and MI5-MI6, to whom they reported. If No. 3 was indeed an informer, then the chances that he was under the control of the British military at the time of the murder, rather than the RUC, were overwhelming.

The first interesting coincidence takes place in the immediate wake of Seamus Ludlow's murder. On the day after his funeral, a British Army patrol arrived at the door of the Donegan home in south Armagh and made clear their belief that the IRA had killed Seamus Ludlow. It is important to note that the first allegation about the IRA came from the British and was subsequently repeated by the Garda to family members. When Kevin Donegan was spirited off to Bessbrook Barracks, the line of questioning was all about the direction of the Garda inquiry. Why was the British Army so interested in this case that it despatched soldiers in helicopters to interrogate Ludlow family members? Why was it interested at all? Why the interest in where the Garda inquiry was heading? I cannot answer those questions. Any proper inquiry must address whether the British Army wanted to know if one of its agents was in trouble.

The next coincidence is that the IRA allegation is repeated by the Garda to Ludlow family members in the days, weeks and months afterwards. Worse than that, Kevin Donegan was told by Dundalk detectives he trusted and believed that family members set Seamus Ludlow up and were even involved in his killing. The gardaí involved have all denied this, leaving open the possibility only that the Ludlow family made up the allegation. Unfortunately, Mr. Justice Barron does not really address what possible motive the family might have for making up such an extreme charge, nor does he ask, if the family is telling the truth, why the gardaí told such outrageous lies.

The Garda would have known almost immediately that all the customary hallmarks surrounding the shooting of an informer by the IRA were missing in Seamus Ludlow's case. Normally, informers would be taken away for lengthy interrogation to extract a confession, often over days, and then shot, whereas the Garda knew Seamus Ludlow had been alive and drinking in a bar the night before. The IRA has rules and regulations governing the treatment and proceedings against suspected informers and however one regards the IRA, they themselves take these matters very seriously.

In my experience, when the IRA shoots an informer they do not do so near the victim's home but far away, often near the sight of interrogation. In Seamus Ludlow's case, if he had been an informer, the IRA would have dumped his body north of the Border to minimise the adverse political fallout that would arise from killing a citizen of the State. The IRA also have a very close interest in the world knowing what they have done and why in respect of informers. This is because they kill informers, primarily to deter others tempted to follow their path. However, in this case they denied it.

I have no doubt that the family is telling the truth about this and that the Garda, individually and possibly at an institutional level, smeared the Ludlow family and the reputation of Seamus Ludlow in a shameful and disgustingly callous fashion. I cannot imagine a reason for the Ludlow family lying about this. The gardaí involved would have known the allegation was nonsense yet they repeated it numerous times to the family. What was their motive? That is the big unanswered question any proper inquiry must address. One way of answering that question is to ask what the effect was of the Garda allegation. The answer to that is that the family was, as a result, deeply and bitterly divided, one against the other, for two decades and rendered incapable of mounting a cohesive and effective effort to discover the truth behind Seamus Ludlow's death.

It is surely not without significance that the family could only really come together again as a single unit to search for the truth when the journalist, Joe Tiernan, came to them in 1995 with Garda sourced information that loyalists, not the IRA, had killed Seamus. From there until today, there is a straight line but until then there was no chance that the truth could ever be unearthed. That points to the motive of those who blame the IRA for the killing and so divided the family. In his evidence to the sub-committee two weeks ago, Jimmy Sharkey said that the failing in this inquiry lay in 1976, not 1979. I agree wholeheartedly with him.

Last week the Garda Commissioner, Noel Conroy, suggested that perhaps the security forces in the North were protecting an informer. I think he is right to ask that question but I would add one other question. Did any of the Garda leadership of that day or any member of the Garda assist them? That is one of the questions the sub-committee must ask a public inquiry to address. I believe that a public inquiry must be set up. The only issues to be decided are its composition and terms of reference. First, we were told this morning that there is not much point in setting up an inquiry into events that happened 20 or 30 years ago, in which case the Bloody Sunday tribunal would not have sat in Derry for the past two or three years. We are told that the inquiry should not be a rerun of the criminal evidence — I agree — because that is not what a public inquiry should examine. It must bear in on the issues behind the killing, those that have been aired at the sub-committee along with others, including whether if a British informer was involved in Seamus Ludlow's killing, and if the agencies of this State played any part in any cover up of Seamus Ludlow's death.

Shall we take some questions?

Yes, of course.

I would ask members and Mr. Moloney to be careful from the point of view that the sub-committee does not want to end up in the High Court. I ask members to understand this and to operate on that basis.

I welcome Mr. Ed Moloney and Mr. Francis Kennan to the sub-committee and thank and commend them for making the effort to come here and make a submission to the hearings. On a personal level, it is refreshing to hear an investigative journalist asking some serious and difficult questions. Long may that continue in his profession and also in the broader political field. When we listen to the facts relating to the murder of Seamus Ludlow, we wonder why many of these questions were not asked at the time by both politicians and journalists. I commend our guests on the work they have done so far.

Is Mr. Moloney satisfied, from his experience as a journalist in the North for 20 years, that there was widespread collusion between the security forces and loyalist paramilitaries, did it merely take place on an ad hoc or haphazard basis or was there a general policy of collusion coming from the top?

From my experience, particularly of the Pat Finucane inquiry but also other incidents, it seems that there has been a policy in the North, for a considerable period, and, indeed, from my own conversations with loyalist paramilitaries — who would often be very candid about the co-operation that they would receive at an individual level from ordinary squaddies, soldiers and policemen through to the more institutional level — that there was a considerable amount of collusion. In the case of the Pat Finucane affair, in which the principal figure was Brian Nelson, the chief of intelligence to the UDA, there was a strategy devised by, first of all, British military intelligence but also assisted by MI5 and the then RUC Special Branch, to use Brian Nelson for all sorts of nefarious purposes that included allowing other people to be shot dead in order to protect agents.

The same phenomenon happened with Freddie Scappaticci who was working for the IRA's counter intelligence unit. One must conclude from that type of story that this is not something that happened overnight, it is something that has been there for a considerable period. It is what makes me ask these difficult and awkward questions about what happened with Seamus Ludlow. Was there a similar type of policy in place at the time? Was the British Army, which was running the intelligence game, almost unchallenged in the early 1970s due to ostracisation? Were they employing loyalist paramilitaries to carry out operations that they themselves would not want to be associated with, personally and directly? The chances of that happening are overwhelmingly strong.

The argument is often put to many people in the South and also in the general political scene that it was not just a case of a few rotten or bad apples or haphazard collusion between a squaddie or soldier and the UDR or other loyalist paramilitaries. Does Mr. Moloney think——

That certainly did happen and I do not want to underestimate the importance of that. What would often happen was that soldiers who would be over in Belfast for a three-month tour would, at the end of their tour, stuff all their intelligence documents through the letter box of the local UDA-UVF commander. That happened on a routine basis. That is different from the sort of relationship that the MI5 force research unit military intelligence that the RUC Special Branch developed with a character such as Brian Nelson, which was a very well-worked out strategic, planned, careful and considered type of intelligence operation. It was operating at two levels.

In his interview with Mr. Moloney, did person No. 1 — I am conscious of the Chairman's warning earlier — sound reliable or credible?

When I first met the guy, I had the same thought in my mind as that which appeared at the end of Mr. Justice Barron's report, which was to wonder whether this was a self-serving account. However, over the weeks and months, I began to believe that he was telling the truth. He was very consistent in his story. The aspect of his story about meeting the RUC special branch in 1987 appeared to stand up to a certain amount of scrutiny. There was one particular incident about which I am not at liberty to describe today, but I will happily describe it in front of a public inquiry. This incident was the clinching piece of evidence that persuaded me that he had to be telling the truth.

Was the impression given that he was convincing and reliable?

That was my impression.

In his oral submission, Mr. Moloney referred to the Red Hand Commandos. Can he clarify which paramilitary group they belong to? Are they under the umbrella of the UVF? What is their connection in the last ten to 20 years regarding links to the security forces?

The modern Ulster Volunteer Force has a quite complicated origin. Everyone knows the story about Gusty Spence and his gang that shot Peter Ward in 1966. Many people assume that was the original UVF, but it was not. That organisation was very much confined to Gusty Spence and his friends. When he went to prison the organisation ceased to exist. It re-emerged in the early 1970s out of an extreme Protestant group known as Tara. This group was based in east Belfast and led by William McGrath, a man who later became notorious over the Kincora boys' home scandal. He built up this paramilitary organisation, which he described as a doomsday outfit which would go to war when the members and leadership of this group were convinced——

I would prefer if Mr. Moloney did not mention names.

Mr. McGrath is dead.

Please do not mention names if at all possible.

It is difficult to talk about history.

Absolutely. Mr. Moloney will have to make the same effort we all make.

I will do my best. He set up this doomsday organisation to rescue Ulster if and when the point came when the IRA was about to overwhelm Ulster and force it into an all-Ireland republic. The problem for members of the group was that this doomsday was happening all around them, with bombs going off every day, yet the leader of the organisation refused to acknowledge that doomsday was on their doorstep. They broke off in disagreement with him. Some of them went on to form what is now the modern UVF. One member associated with that group set up his own parliamentary organisation. He is also dead and I named him in my statement as Mr. John McKeague. He was an associate of the Reverend Ian Paisley. As they had a common origin, they had a very close relationship from day one, even though they were separate organisations. The Red Hand Commandos were generally regarded as a much smaller version of the UVF, but a very vicious one. It is known for the callous nature of its violence. The person to whom we have been referring as No. 3 is an example of what I am talking about. He had a fearsome, bloody reputation.

Mr. Moloney mentioned the phrase, "the elephant in the room". He stated that fundamental questions have to be asked and that the real story of Seamus Ludlow's murder was whether a British agent was directly involved. Can he expand on that?

I do not know whether this was the case. I do not know whether No. 3 was definitely an agent and whether what happened was a cover-up to protect him. He was a valuable asset who went on, let us say, to kill Máire Drumm.

Is it credible for the families to be allowed to ask the question?

It is central to this. I do not want to minimise all the problems that have been raised about what happened in 1979 and whether Garda bureaucrats behaved the way they should have done. These are all very relevant issues. However, there is another issue which we all know is there, but we are not talking about it. That is why I call it the elephant in the room. Forgive me for importing American expressions into these proceedings, but I decided it was most appropriate for this situation.

Is Mr. Moloney satisfied that the intelligence organisations like MI5 and MI6 had succeeded in infiltrating the Garda over the last 20 to 25 years?

I am saying that there are allegations, but I do not have any evidence or proof. I gave the Chairman a copy of a very good article written by Mr. Don Mullan — who has written excellent material on Bloody Sunday and the Dublin and Monaghan bombings — in which he details some of the allegations and the various Garda inquiries. If the Garda set up inquiries into these allegations, then it was taking them very seriously. These were allegations that did not appear out of thin air. We also have had accounts of former British intelligence officers like Fred Holroyd, who himself stated that he came to Dublin to meet senior Garda officers and received photographs and documents——

We are moving away from the point.

I want to get a flavour of the background to the situation at the time. Has Mr. Moloney ever come across someone identified as "the Badger" around 1987?

No, but I have heard of him.

A section of Mr. Moloney's article published on 15 March 1998 appears in the Barron report on page 43. Person A in that article says "Forget it, it's political." What is the background to that?

This was an interview with No. 1, who described to me his astonishment at being arrested and the possibility of facing charges for murder. Several years previously, he had a fairly lengthy exchange with an RUC special branch officer in a meeting arranged by one of his relatives. At this meeting, he went over the entire story and told this special branch officer everything that had happened. At the end of the exchange, fully expecting the cuffs to be slapped on his wrists, he asked what was to happen next. According to his account, which I have read in the Barron report but which is missing from the RUC version, the special branch man told him to forget it as it was all political. That is his story and it seemed to me to be a very interesting aspect of the whole business.

Mr. Moloney stated that he was concerned that there was a hidden Garda motive at an institutional level regarding the issue of Seamus Ludlow's murder. Is Mr. Moloney again just asking the question?

I am asking a question that can only be asked and answered by a properly equipped public inquiry. I believe, given the way this family has been shamefully treated over the year, that it is the very least that this committee should recommend.

Therefore, Mr. Moloney supports the request by the family to have a full public inquiry. Does he share the concerns of the Minister for Justice, Equality and Law Reform on legal and constitutional matters?

No I do not. He was advancing a reason that flies in the face of his own Government's policy. The Government here supported the setting up of a tribunal of inquiry into Bloody Sunday, which happened in 1972. The tribunal of inquiry started almost 30 years after the event. If the Government could support that inquiry, why can it not support this inquiry?

It is not the job of a public inquiry to try Nos. 1, 2, 3 and 4, as that is the job of a criminal court. The job of a public inquiry is to discover whether the State fell down in any of its responsibilities to Seamus Ludlow and to his family.

The issues behind the killing are the crucial points here.

Absolutely.

I thank Mr. Moloney for travelling quite a distance to be here with us today and for his assistance to the committee. It is most interesting to hear what he has to say. Mr. Moloney's knowledge was sourced during his period as a reporter in Northern Ireland.

Except the information on suspect No. 3 leaving Northern Ireland under a cloud. When I wrote the pieces about Seamus Ludlow's killing, I did not really have any UVF sources. Events happen in strange ways and subsequent to leaving Northern Ireland and making associations in an entirely different context which I will not go into here, I was able to cultivate a source in the UVF who was able to shed the light I have shared with the sub-committee on suspect No. 3.

For what period did Mr. Moloney serve in Northern Ireland?

As a journalist, I served from 1978 to 2002, with some time off for good behaviour.

Mr. Moloney mentioned numerous agents at all levels within the Garda, especially Garda intelligence, of which he gave one example. What is the basis for the assertion?

One can cast one's mind back to the start of the troubles and the Crinnion affair. It started there and continued. Allegations have been made, including those in respect of the notorious case of the person to whom Deputy Finian McGrath referred by his code name and those from people like Fred Holroyd. There is a great deal of smoke but I do not know if there is a fire. When one is a journalist working on difficult stories like this, one is not quite sure where the evidence is pointing. It is often the case that one has to use common sense and ask, for example, if it made sense for the British to cultivate sources inside the Garda special branch. The answer to that question is self-evident.

Mr. Moloney mentioned four suspects in his article whom he did not identify. Were they the same suspects he has referred to here?

That was the information Mr. Moloney had at the time.

Absolutely.

Mr. Moloney referred to suspect No. 3 as being "psychopathic".

That was how he was regarded. I never met the man, but others who did said that was his reputation.

Did he think he would be interrogated about the murder of Máire Drumm in a hospital in Belfast?

That is correct.

Did Mr. Moloney have other information that he was implicated in the murder? Are there other murders of which Mr. Moloney is aware in which the suspect was implicated?

I do not have direct information that he was involved in Máire Drumm's murder. The claim to the killing was made jointly by the UVF and the UDA.

Mr. Moloney said suspect No. 3 was probably an informer.

No. To be precise, I asked the UVF source why he left Northern Ireland given that he was presumably happy there doing what he was doing. I was told he had left under a cloud and asked if that meant he was an informer. I was told that was a reasonable assumption to make without pressing the matter any further.

Mr. Moloney also said in the course of his statement that prior to 1 May 1976, agents were reporting to MI5 and the British military.

My point is that 1 May is the official date of the start of Ulsterisation, the process by which control over security was taken away from the British Army, which had been given control under direct rule in 1970-71, and returned to the RUC. That did not mean the British Army stopped recruiting informers, which clearly it did not, it meant that until that point most of the informers working for the state in the North were working for the British Army. Until then, the British Army recruited and ran informers exclusively.

From Mr. Moloney's experience and speaking to various people who were in the know, was there a close relationship between the British Army and the RUC in sharing intelligence?

Mr. Moloney denies that. I was going to bring the Northern Ireland Office into the loop. Will Mr. Moloney comment on those three organisations?

The period in which responsibility for security was transferred was also a period of enormous turbulence in the relationship between the military and the police. The turbulence finally culminated with the appointment of Sir Maurice Oldfield as security supremo in 1979 following the assassination of Lord Mountbatten and the killings of paratroopers at Carlingford Lough. In all organisations, control over mechanisms like the ones in question represents power which they will be unwilling and reluctant to hand over. The hostility and turbulence resulted from a good deal of rivalry between the RUC and the British Army over things like the handling of informers and was a significant impediment to security progress for many years. It was not until Sir Maurice Oldfield came in and knocked a few heads together that things like joint committees of the British Army, the RUC and MI5 were established to co-ordinate their activities to prevent them falling over each other's feet. There was a good deal of animosity, rivalry and jealousy among these organisations. For much of the time, the British Army distrusted the RUC and had a classification of intelligence which was termed "For UK eyes only" and used to deny intelligence to the police force. It would not be true to say they shared information.

What about interaction? Which organisation was the primary intelligence gatherer?

Up until 1976, it was the British Army. After 1976, there was a period in which it was inconclusive which organisation was primary but by the early 1980s there is no doubt that the RUC and MI5 were running the show. At the same time, the British Army still had very important units. We know from the Pat Finucane affair that the British Army continued to run agents. An interesting point is that the more cowboyish operations tended to be those of the British Army.

Can Mr. Moloney comment on the relationship between the gathering of information by either the RUC or the British Army and the Northern Ireland Office?

MI5 was headquartered in the Northern Ireland Office. In intelligence matters, a reference to the NIO prompts me to think immediately of MI5. Responsibility may well have been shared with the Secretary of State and his MI5 and intelligence advisors. NIO normally means MI5 or MI6, which had a role in those days also.

In this inquiry and others we have carried out and in Mr. Justice Barron's report, which makes the assertion straightforwardly, it seems co-operation from the RUC was forthcoming only up to a point. Once the Northern Ireland Office came into the frame, the transfer of information came to a halt. Does Mr. Moloney have any information on that from the various investigative stories he pursued?

Not really. My assumption from past practice is that what was involved was a political input which usually means an interest of state was in play. That would probably imply that MI5 or whichever body was running the civilian intelligence operation would indicate whether an action was against state interests. The UK Attorney General's office might have been involved also.

Mr. Moloney mentioned that the British Army had loyalist paramilitaries undertake crimes. He may correct me if I paraphrase him incorrectly. I presume those crimes would have included murders which the Army could not undertake directly.

Absolutely.

Does Mr. Moloney have much information to support that contention?

There is the story of Brian Nelson which has come out in various ways, not least of which was his own account in the form of his prison diary. It also emerged in the accounts of people who worked in the British Army's force research unit, which was running him, including Martin Ingram who has written quite extensively about his dealings and behaviour. There are various incidents I could cite to the committee by way of example. The killing of Francisco Notorantonio in Ballymurphy was arranged by the force research unit because the UDA had targeted a man called Freddie Scappaticci for assassination. He was a senior member of the IRA's counter intelligence unit and an agent for the force research unit. When the British army discovered that the UDA was planning to kill one of its best agents, it did not want it to happen. Therefore, using Brian Nelson, it persuaded the UDA that Freddie Scappaticci was a nobody and that another guy who, coincidentally, happened to have an Italian name was the real IRA agent. Therefore, the UDA killed Francisco Notorantonio instead. He was, in all respects, a totally innocent man, but he was killed in order to protect a very valued informer.

I remind Mr. Moloney and members that they should try to restrict contributions to what is relevant to this issue, without going into scenarios where people are named liberally.

I asked the question because I saw it as relevant. I will get to the issue. The same scenario was suggested in the context of the murder of Seamus Ludlow. Mr. Moloney raised the questioning of Kevin Donegan, which struck all of us as odd, to say the least. Why would the British forces have been interested in that type of murder?

I do not know whether this is true or whether there is any evidence to support it, but it is an issue that should be investigated and probed by an inquiry. It is possible that one of the guys in the car was working for the British military intelligence authorities and that he may have gone across the Border and misbehaved himself that night. As far as the authorities were concerned, if he had done something he had not been authorised to do and was at risk of being captured, identified, taken and tried in a Dublin court, the embarrassment to the British would have been enormous. If that was the case, they had a vested interest in discovering what was going on vis-à-vis the inquiry. They needed to know whether gardaí were following this lead of inquiry, if they were actively considering the possibility that there had been loyalist paramilitary involvement in Seamus Ludlow’s killing or whether they were going down some other tangent. I suspect that is the reason, if they had one. What makes one suspicious about this——

I would prefer if Mr. Moloney stuck to the facts, rather than conjecture.

In Mr. Moloney's article in March 1998 he put forward the proposition that it was a politically sensitive time and that the RUC might not have put the information it had in early 1987 into the public domain or notified the Garda because of sensitivities attaching to the UDR at the time. Is that correct?

Where is that?

Mr. Francis Kennan

Which article is it?

The article published in March 1998.

There were two articles in March.

It was the article of 8 March. Was it a fear of giving ammunition to people who would have been critical of the UDR at a time when its future was up for debate and discussion?

That was a possibility that had crossed my mind.

Would Mr. Moloney accept that the Garda had that information, something of which he would not have been aware?

Nobody knew that then. All we had was a story that the RUC knew about it in 1987. The question was why did nothing happen in 1987 because, on the face of it, it was extremely suspicious.

Mr. Moloney has mentioned that the failures lie in the 1976 rather than the 1979 investigation. That is contrary to what Judge Barron has said. Why is that Mr. Moloney's contention?

Principally because the inquiry lasted 21 days, which does not seem a long enough period for a serious murder investigation. Second, it appears that at a reasonably early stage of the investigation, according to the descriptions of its interactions with members of the Ludlow family, the Garda had made up its mind that the IRA had done the killing and that he had been killed because he was an informer and that was the end of it. One does not have to be an expert, as I claim to be sometimes about the IRA, to work out that Seamus Ludlow's killing was not a classic killing of an informer. He was not found bound and gagged. He was not dumped in south Armagh. The killing happened outside his own house, more or less, and he had not been taken away for interrogation. There was no way his murder fitted the normal pattern of an informer interrogation and murder.

I have two final questions. The inquiry into this murder, even in 1976, came to a halt after a short period. That is also symptomatic of the reports we have received on the bombings, particularly the Dublin and Monaghan bombings. Does Mr. Moloney have any information from reliable sources from his time in Northern Ireland on why inquiries into any of these other events would have come to a halt? Central to this, does he have any information on what policy might have been at Garda and RUC level with regard to interrogating witnesses or suspects who had committed a crime in the other jurisdiction?

Mr. Moloney should state what he knows on this, rather than engage in conjecture.

I am not sure if I understand the first question. On the second, I do not have any direct experience of police forces crossing into each other's jurisdictions in order to carry out questioning. However, I have heard of this happening.

Mr. Moloney has advocated the holding of a public inquiry. Given the cross-jurisdictional aspect of any inquiry into these matters and the paltry co-operation received from the Northern Ireland security forces and the political offices there, how would such a public inquiry make progress?

It is very simple. In my experience as a journalist, an innocent man climbs onto the roof of the jail to proclaim his innocence to the world. A guilty man hides in the corner and chooses to stay in the shadows. If the British have nothing to hide, if one of the four men was not an informer, why can they not say so clearly and simply? It would be up to a public inquiry, the Government, not the State, to put the situation to the British and inform them that Seamus Ludlow's family was treated in a disgraceful fashion for too long, that we have unanswered questions we want answered and ask them to answer them. If they do not, at least, we would know where we were with them. They should answer them. If they have nothing to hide, they will do so. If they have something to hide, they will not.

Does Mr. Kennan have any information which he feels would give——

Mr. Kennan will say something later. We have had ten minutes of questions. If anyone wants to ask a short question, we will take it before we get to Mr. Kennan at 2.35 p.m.

I welcome Mr. Moloney and Mr. Kennan. With regard to Mr. Moloney's main source of information, did he contact Mr. Moloney or did Mr. Moloney contact him?

No, I was contacted by his solicitor who said the source had a good story to tell and asked me if I would like to meet him. He and his wife came round to my house and we had a long conversation, the first of many. I then taped an interview with him and we pushed ahead and eventually published the story.

Did Mr. Moloney make any effort to contact any of the other suspects he named?

I did, without success. I also attempted to contact the Garda. I have a copy of a fax I sent to the Garda press office which was unanswered. It is available, if the Deputy wants it.

Was Mr. Moloney aware that arrangements had been made to interview the source in Glasgow in 1979?

I think he said something about that. He said he had been in Glasgow.

Did Mr. Moloney know about the arrangements made by the Garda?

No, I did not know that.

The arrangements had been made by Superintendent Cotterell at the time, but the Garda was unable to complete the interview. Did he make any further reference to interviews by the Garda?

No. 1. No. Does the Deputy mean interviews with the source himself?

Is it correct that Mr. Moloney disagrees with Mr. Justice Barron's conclusions?

In what respect?

Mr. Moloney said that he had some difficulty with it. In respect of the entire question of collusion, he indicated that there was, in his opinion, some element of collusion between the Garda Síochána and the British intelligence service.

There might have been. I do not know whether there was or not.

Is it conjecture?

Mr. Justice Barron also engages in speculation. He speculates that the investigation did not proceed because of the existing political climate. There was some contact involving C3, the Department of Justice, etc., and the investigation did not proceed. Is Mr. Moloney suggesting that the investigation did not proceed because there was prior knowledge on the part of the Garda and MI5 and that there was some other element in the decision being made rather than the one that is postulated by Mr. Justice Barron?

I am not saying I know this for a fact. There are circumstances surrounding this case which mean that if these questions are not asked, given of our history and the circumstances of the case, an inquiry into the Seamus Ludlow killing would be deficient. These are factors that have to be followed up. If an inquiry is held and if this whole area is excluded from the terms of reference, the fact that it was not included would fester away as a cause of resentment and dissatisfaction for years to come. This question must be answered. It must be got out of the way. Either it is true or it is not true.

I thank Mr. Moloney. Before we conclude, does Mr. Kennan wish to say anything? He indicated earlier that he wanted a couple of minutes.

Mr. Kennan

I am not sure that Deputy Finian McGrath was expecting this. However, I am grateful for the opportunity to make a short statement. I have received instructions from another client in Northern Ireland who, for obvious reasons, is unable to give evidence to this sub-committee. In the event of an independent judicial inquiry being set up and satisfactory guarantees being offered to him, he will be willing to appear and give evidence at such an inquiry.

Obviously Mr. Kennan is not willing to provide information here. Is he in a position to give that information to the sub-committee on a confidential basis?

Without a public judicial inquiry.

Would Mr. Kennan provide the information to the sub-committee?

Mr. Kennan

I apologise but I do not understand Deputy Peter Power's question.

Mr. Kennan acts for a client who says he would be able to help a sworn public inquiry. Anybody could come before us and say that they know somebody who could help a sworn public inquiry. In order to assist the sub-committee, is Mr. Kennan prepared, on a confidential basis, to give the identity of that person and provide a general indication of the type of information he or she possesses and the type of evidence he or she would be in a position to give?

Without any preconditions.

Mr. Kennan

I would be obliged to take further instructions from my client in that regard but I do not think it requires the wisdom of Solomon to work out the range of people to whom I might be referring.

That is fine.

Would that person be prepared to attend a private session of the sub-committee?

Mr. Kennan

No.

Perhaps Mr. Kennan would communicate with the clerk to the sub-committee to see if and how this matter can be furthered.

Mr. Kennan

Absolutely.

We would appreciate any help we can obtain in respect of that matter. I thank Mr. Moloney and Mr. Kennan for assisting us with our work. I am aware that they have travelled a fair distance. We are very appreciative of their efforts. What they have said has been of great help to us.

We will adjourn until Tuesday next when we will meet the Dublin City Coroner, Dr. Brian Farrell.

The sub-committee adjourned at 2.35 p.m. until 10 a.m. on Tuesday, 14 February 2006.

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