JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS (Sub-Committee on the Barron Report) debate -
Tuesday, 21 Feb 2006

Public Hearings on the Barron Report.

Chairman

At its last meeting the sub-committee had a discussion with Mr. Justice Barron. This morning it will hear testimony from the legal representatives for the Ludlow-Sharkey families. I understand the sub-committee will hear submissions from Mr. James MacGuill, Ms Deirdre Murphy, SC, and Mr. Eamonn Coffey, BL.

I must emphasise again that while members enjoy absolute privilege in regard to these proceedings those attending or assisting have only a qualified level of privilege which, as I am sure the delegation is aware, does not provide them with the same protection as members. I welcome Mr. MacGuill and invite him to introduce his colleagues before commencing the presentation.

Mr. James MacGuill

I apologise to members for the fact that our submission was lodged with the sub-committee only this morning but we were keen to review the transcript of last Thursday's proceedings before finalising it. We will address the submission rather than read from it as it is clear members of the sub-committee are entirely on top of the issues involved. We simply wish to highlight some points of special concern to the family. Each of the three of us will make a presentation and deal with any questions which arise. Mr. Coffey will speak first on the issue of public inquiries generally, I will deal briefly with the family's experience at these committees and Ms Murphy will make the family's submission on where we should go from here and in what form the family would wish to see matters advanced. The family are very grateful to members for the obvious effort which has been made to master the facts of this quite difficult case. Clearly, the members have given the matter very detailed and considered attention.

Mr. Eamonn Coffey, BL

My topic is the reason for a public inquiry. Arising from the Barron report, the evidence given at the second inquest in September 2005 and the evidence to the sub-committee, it has been established as fact that Seamus Ludlow, a man of unblemished character, was murdered in the early hours of 2 May 1976. It has also been established that some time in 1977, approximately 18 months after the date of the murder, the RUC became aware of the identities of four primary suspects and passed this information to the Garda in February 1979. In April to May 1979, a request was made by the investigating garda to senior Garda management to interview the four primary suspects but those primary suspects were not interviewed until 1996 when they were ultimately questioned by the RUC. There is a dispute as to the reason or reasons the four primary suspects were never interviewed on foot of the request to do so in April to May 1979. According to the DPPs for Northern Ireland and this jurisdiction, there is no prospect of taking a prosecution, let alone a successful one, against all or any of the four primary suspects.

Based on the above facts, it is submitted on behalf of the Ludlow and Sharkey families that the failure to interview the four primary suspects was a failure in the State's obligation to carry out an effective investigation into the murder of Seamus Ludlow. It is also submitted that the two internal Garda inquiries, the Barron report, the two inquests and the sub-committee's hearings provide the basis for the family of Seamus Ludlow and the wider public to believe there was a wilful decision by senior members of the Garda and-or the then Department of Justice to avoid interviewing the four primary suspects. It is a matter of extreme public urgency and importance to dispel all or any bases for such a belief. If the belief is not dispelled, the Ludlow family and wider public are left to conclude that the State was an accessory after the fact in the murder of Seamus Ludlow and thereby complicit in his murder.

A public inquiry is necessary to uphold the Constitution and its public institutions, especially the Garda and what is now the Department of Justice, Equality and Law Reform, and to maintain confidence in the rule of law. A public inquiry would, for the first time, afford the family a voice and forum to ask publicly questions as to why there was no effective investigation into the murder of Seamus Ludlow. Attempts on behalf of the family in the course of the second inquest relating to the conduct and course of the investigation into the murder of Seamus Ludlow were consistently blocked and prevented by the interventions of counsel retained on behalf of the State and the Garda. Inquiries to date have served merely to generate more and more unresolved queries and suspicions. Due to their respective terms of reference, powers and entitlements, the inquiries, including the hearings of the sub-committee, have been unable to involve conflicts between witnesses.

In addition, having regard to Government policy, in particular public statements of support from the Taoiseach and individual members of the Government regarding campaigns by families of the Bloody Sunday victims and that of the late Patrick Finucane for public judicial inquiries, public interest and consistency demand that a public inquiry under the Tribunals of Inquiry (Evidence) Act 1921 be established in this instance. In the face of obstruction, mischievous and cruel deception by or on behalf of the organs of this State, and general apathy, the family of Seamus Ludlow, for almost 30 years, have remained steadfast and courageous in their pursuit of constitutional and natural justice for Mr. Ludlow and themselves. This joint committee is acting on behalf of the Dáil and, by extension, the people of Ireland, and the best and most effective action available to it is to recommend the establishment of a public judicial inquiry under the Tribunals of Inquiry (Evidence) Act 1921 to ensure that the failure in this case to have four primary suspects interviewed, which can only be termed a dereliction of public duty, will not or cannot recur.

Furthermore, while different issues arise in this case from those in the Dublin and Monaghan bombings inquiry, the legal and procedural obstacles identified by the joint committee as to why a public inquiry under the Tribunals of Inquiry (Evidence) Act 1921 could not be recommended do not arise in this instance. To deny the family of Seamus Ludlow a public inquiry under the Tribunals of Inquiry (Evidence) Act 1921 would be to perpetuate the scandalous denial of constitutional and natural justice to which the family is entitled and thus compel the family to take private action by way of seeking, inter alia, declaratory orders pursuant to Article 40 of the Constitution or redress from the European Court of Justice in Strasbourg pursuant to Article 2 of the Convention on Human Rights, as incorporated into Irish law by the European Convention on Human Rights Act 2003, which may not address public issues of extreme importance satisfactorily or at all.

Chairman

I thank Mr. Coffey. Regarding evidence given before the committee, no facts were established, since these hearings were not set up to do so. One can draw one's own conclusions from what happened at the hearings, but the committee itself has not established any facts in that regard. Mr. Coffey also said that the joint committee had been unable to resolve conflicts between witnesses. It is not within our terms of reference to do so. The purpose of these hearings is to set out in detail what we hear on the matter.

Mr. MacGuill

I intend to move on to the second topic, which is on pages 5 to 12 of the submission. It is intended to give members a sense of how the family has felt during the process. Members will be keenly aware that victims frequently feel disenfranchised by the manner in which proceedings take place. The family will have been particularly struck by the way in which very important questions arose, including some not even considered by Mr. Justice Barron. As members sought to pursue those questions, they had to be restrained by rulings from the Chair. We do not challenge the rulings, but they illustrate that this forum cannot advance matters even to its own satisfaction. I ask members to imagine, when they feel frustrated at not being able to pursue a question, how the family feels at not being able to pose a single question after 30 years. A key element of a public inquiry in which the family would be represented is that it would be empowered to challenge accounts, raise issues and ensure that evidence it wishes to have adduced is considered. It is an essential element of what the family seeks today.

Another matter that strikes the family as particularly significant is that notwithstanding the fact that the then Garda Commissioner, Mr. Pat Byrne, was happy to concede errors and mismanagement on the part of members of the Garda Síochána and the Department in his 2003 letter, no apology was tendered to the family at that time. However, when the current Commissioner and the Minister attended the committee, the indefensible could no longer be defended, and apologies were forthcoming. The family believes that a key indicator of why any inquiry into misfeasance in public office or misdeeds should be carried out in public is that the family and, importantly, the citizens of Ireland, can see and judge for themselves the explanations proffered regarding what is clearly an unresolved scandal. Those questions could not be dealt with at the inquest and cannot be dealt with at this committee. We take cognisance of that and accept the Chairman's ruling that the committee is unable to issue findings or compel witnesses, relying entirely on co-operation.

It is clear, and this emerged from the evidence of the current Commissioner, that the Department only takes the trawl for documents seriously when under compulsion to do so. The committee heard that additional documents were found in the Dublin-Monaghan phase that were not made available to Mr. Justice Barron. The family was shocked to learn in the course of the hearings before this committee that the minutes of the RUC-Garda meetings were not supplied or proffered to Mr. Justice Barron and that they were not sought by the Cabinet sub-committee on security. If there was a relatively modest civil case before the courts, not concerning anything as significant as the loss of a citizen through an illegal act, and a party had documents and told the court they could not find them, that party would be expected to set out in writing and on oath how, when and where the documents came to be misplaced. A serious search for all relevant documents would be undertaken.

It is not satisfactory from the family's point of view to find that there is nobody accountable and nobody is obliged to produce that list or say: "Yes, we will confirm to you the difference between registered files and unregistered files." We know there is material out there. The committee has had repeated submissions from members to the effect that the files will back them up but these files have not been assiduously sought. Again, we have made reference to particular instances in the paper. However, the family feels there should be a public inquiry which can compel production of documents and seek answers as to the non-availability of important documents.

These are minutes floating between different Departments. There are multiple copies. How can it be that all copies of the relevant documents are missing from every source? That, in itself, is a matter for inquiry.

In the family's view it is difficult to explain and from the point of view of a practising lawyer it is unusual in the extreme to find such a stark conflict between very experienced witnesses. On the one hand, former Commissioner Wren and the then Minister for Justice told the sub-committee that there was an absolute prohibition on travelling outside the jurisdiction to assist or undertake investigations, that it simply could not happen and that the question of seeking permission would not arise. Then the sub-committee heard the evidence of the current Commissioner and other senior members to the effect that they personally participated in exactly that exercise. The question that arises is whether it was prohibited. If it was not prohibited but could be authorised in certain circumstances, what were those circumstances and why was the authority not given in this case? These are fundamental questions and they should be capable of the easiest resolution. There must be files and documents relating to the practice.

It is the family's contention that there was, at the outset, a deliberate attempt to frustrate the investigation and-or prosecution of this case and that it started in 1976 and did not merely arise from the acknowledged failure in 1979. What we know about 1979, however, is that when the suspects' names which were mentioned at the meeting in Belfast to Superintendent Courtney — they were first mentioned in the letter — he was also given information at the same time that two of the suspects were serving members of the UDR. What was the impact of that information on the manner in which this investigation was conducted? That is certainly capable of bearing a significant negative inference not only with regard to the investigation of this murder but also with regard to policing practice at that time generally.

Again, an indicator of how the family must feel completely divorced from what is happening at the hearings was what emerged last week in significant detail. It had not been identified by the family or their advisers previously because it was obliquely referred to elsewhere. This was that in April 1976 a document was communicated to the Garda Síochána naming suspect three as a person in respect of whom the police should take interest. That was a matter of weeks — and weeks are still a long period of time — prior to Seamus Ludlow's abduction and murder. That is of the greatest significance and it was not addressed in Mr. Justice Barron's report, presumably because its significance was overlooked.

If that information was available, what was done with it? Correct practice would clearly be to get as much information as possible on the suspect, including a photograph. We know that a photograph was available in 1979. The information would be flashed to all Garda stations under Fógra Tóra and members would be alerted to the fact that this was a person who might come to this jurisdiction and might commit a crime of the utmost seriousness. Were checkpoint officers apprised of that information at the time? Why, in the immediate aftermath of the murder, when this information was already known to the gardaí, did this not become a seriously strong line of pursuit?

Why was the family not informed? Why was the family misled in regard to the suspicion being on the IRA? How could it be that 21 days after the murder, a report, effectively indicating a conclusion to the phase of the investigation, was brought into existence without this suspect being thoroughly researched and appraised? A significant opportunity to solve this crime was missed, a point which emerged only through the questioning of members of the sub-committee last week. If we had a proper sworn public inquiry, evidence of such serious import would be given the attention it deserves. More importantly, the family would be in a position to ask questions about it.

A public inquiry would have a number of other benefits. This sub-committee invited persons to give evidence before it who have not taken up that invitation. There is nothing it can do about that. A public inquiry would have powers of compulsion. The sub-committee heard from two sources — Mr. Moloney and Mr. Keenan — that evidence would be available in a proper public inquiry, presumably in the case of Mr. Keenan's client, on the basis of immunity from prosecution.

The family has long since come to the realisation that there will never be a criminal prosecution in this case. When the Minister sought to deflect the committee's deliberations by suggesting that the family was seeking something that could never happen, he was simply and plainly wrong. It has been the policy of the State to support inquiries into past injustices in other cases. We are particularly fond of encouraging other countries to do that. Here is a case where the wrongdoing is uniquely and completely within the jurisdiction of this State and is amenable to proper investigation. The family believes that nothing short of a sworn public inquiry, with appropriate powers, can secure the attendance of all relevant witnesses and the production of documents.

That is a summary of how the family feels the proceedings have progressed. The family is very positive in its assessment of the work members have done but quite damning in regard to the fact that this can never be the end of the matter because the sub-committee simply does not have the capacity to resolve issues which are, and will remain, a blight on the Irish body politic and the legal system until resolved.

Ms Deirdre Murphy, SC

I will focus on the questions of where the matter goes from here and what the Ludlow family asks the sub-committee to recommend to the Oireachtas in regard to these matters.

While I will not go over the ground that Mr. Coffey and Mr. MacGuill have covered, it should be clear from the outset that the family is not asking for an investigation into the murder. As Mr. MacGuill noted, there was a suggestion during the hearings that this was the purpose for which the public inquiry was sought. The family is satisfied that it knows who killed Seamus Ludlow. It knows and has been legally advised that it is highly unlikely that anybody will ever be brought to justice, in the sense of a criminal trial, for that murder. The reason that no one has been, or will be, brought to justice is that the murder investigation was blocked. What the family asks the committee to do is recommend a public inquiry with full statutory powers into the investigation by the authorities in this jurisdiction into the murder of Seamus Ludlow. If the criminal justice system is unable to deal with the perpetrators of this murder, it is due to the actions of the authorities in this State in regard to the investigation.

One of the reasons it is suggested that a public inquiry is needed is that in the past ten years two internal Garda inquiries have been conducted by experienced senior gardaí who were not able to discover why this investigation was stopped. Mr. Justice Barron conducted his inquiry but was not able to discover why the investigation was stopped. Unfortunately, it was only yesterday evening that we received the transcript of the hearings in regard to Mr. Justice Barron's attendance before the committee. However, it is clear from the transcript that Mr. Justice Barron accepted what he was given from all sources and did not interrogate those sources. He did not interrogate the officials from the Department of Justice, Equality and Law Reform as to the non-existence of files. He accepted former Detective Superintendent John Courtney's account or at least received this account. He received former Commissioner Wren's account. He recorded both of them and decided he preferred that of former Superintendent John Courtney. He did not make a factual finding.

There was no interrogation of witnesses and there was no reconciliation of what occurred with regard to the investigation. We are currently at this stage. We do not know why the investigation was stopped. When the layers are peeled away, the matter at hand could not be more serious. What is clear to date is that the State, in one or other of its manifestations, decided not to pursue the probable killers of one of its citizens. The potential damage to the rule of law in a democratic society from such a decision is self-evident.

It is debatable whether a decision by a State authority not to pursue a murder investigation in respect of one of its citizens could ever be justified. Some greater good must be served but can it ever be justified? Whether it can be justified depends on knowing when a decision of that nature has been taken. We must know what decision was taken and we must have an opportunity to consider such justification as the State may offer for the decision. In order to even engage in that debate, we must know what occurred and why it occurred. Despite three investigations to date, we do not know this. We still do not know what happened or why with regard to this case. The State is clearly recalcitrant in its duty to its citizens to justify what has happened in this case, which is a marked departure from the rule of law. The restoration of confidence in the democratic processes of the State requires that the inquiry be conducted in public.

It would be possible to conduct such an inquiry here. I am mindful that a committee was willing, if possible, to recommend a public inquiry on the Dublin and Monaghan bombings but was of the view that, because so much of the material was outside the control of the authorities of the State, this would not be possible. That does not apply in this instance. All of the main witnesses are still available. Tellingly, many of these people, such as former Detective Sergeant Daniel Boyle, Mr. James Kirby of the Department of Justice and others such as Detective Superintendent Ted Murphy, who conducted the Garda inquiry, have not appeared before the sub-committee. Some of these names may be wrong.

In order for us to know why the State acted in the way it did, we need a public inquiry. The inquiries to date, and their failure to resolve the matters, provide ample evidence that, short of a public inquiry, the answers will not be forthcoming. Mr. MacGuill has pointed out that another enormous benefit of a public inquiry, as opposed to a private inquiry, is that the family could participate in any such inquiry. Its members could see for themselves the unfolding of the evidence of what occurred. There would be a right to cross-examine those whom they have consistently indicated misled them as to the identity of the killers and who have, in effect, branded Seamus Ludlow an informer.

The inquiry need not be cumbersome or lengthy but can be focused and tightly constrained. We suggest four questions that require to be answered in a public inquiry. The first is whether the murder of Seamus Ludlow was properly investigated in 1976. Despite Mr. Justice Barron's view that the initial investigation was adequate the family is not satisfied that it was, and Mr. McGuill has dealt with that. It appears that the active investigation was concluded within 21 days and a report filed on the matter. What did that report contain? Did it suggest IRA involvement in the murder or possible loyalist paramilitary involvement? Why was a note appended to the file by Garda Commissioner Garvey instructing that contact be maintained with the RUC? Why was an inquest held in 1976 in the absence of the family?

I am not aware if the members of the sub-committee are familiar with the normal procedure, accepted by the gardaí at the reconvened inquest in 2005, whereby, in an active murder investigation, an inquest is opened and then adjourned. This inquest was opened and concluded in the absence of the family. I have seen transcripts of the sub-committee's meeting with the coroner, Mr. Farrell. The question is not merely whether families should be notified but why, in the context of an investigation which was supposedly ongoing, was the inquest concluded at all? The issue is wider than the regulations concerning the notification of the family.

The second question we ask a public inquiry to examine is why credible leads given to the Garda Síochána by the RUC in January 1979, at the latest, were not followed up. I say "at the latest" because there is a possibility that the information was available earlier. I note Mr. Justice Barron, in response to Senator Jim Walsh at this sub-committee, said those leads may have been earlier than 1979. When was the information available and why was it not followed up?

The third question is why real evidence gathered at the scene was not preserved. What happened to it? When was it last in the custody of the Garda Síochána and in whose custody was it? Was it available in 1979 when credible information as to the identity of the killers became known? If not why not? Could it have been because the file was, to all intents and purposes, closed before 1979? If it was available in 1979 why was it not carefully preserved for use in any future prosecution, which might become possible when the exigencies demanding that the prosecution not be pursued at that time had passed? None of the inquiries, whether by the gardaí or Mr. Justice Barron, has adequately answered these questions.

The fourth question is whether a decision was taken not to pursue the investigation of the murder of Seamus Ludlow. If so, who took that decision and for what reason?

These are four questions on discrete issues. We do not face the prospect of a public inquiry lasting several years. A public inquiry could be conducted just as, if not more, speedily than a number of the private commissions of investigation ongoing at the moment. Witnesses and documents would be compellable, preliminary work could be done and the relevant people examined and cross-examined. By addressing four discrete issues, the inquiry would be manageable and would avoid the possibility of endless hearings.

I am aware that the committee has recommended a commission of investigation in reference to certain aspects of the Dublin-Monaghan bombings but we consider such a commission to be entirely unsuitable for the purposes of this inquiry because it would merely replicate the work conducted by Mr. Justice Barron with a few additional statutory powers. Commissions of investigation are intended by their nature to be private and voluntary in terms of encouraging those with information to engage voluntarily. That has been tried here on three occasions but we still do not know why and by whom the decision was taken to block it. All that would happen is that the central issues which need to be determined in a public inquiry would be put on the long finger. The fact that such a commission conducts its work in private means that its conclusions and the manner by which it reaches them will not be transparent, which is unacceptable in light of the events that we submit have happened to date in this case. Other than making submissions, the family would be excluded from the process and would never know what weight, if any, was attached to their submissions.

Our most significant grounds for regarding a commission of investigation as inappropriate for the necessary inquiry into this case is that a private investigation will not make determinations of fact. If a conflict arises, the commission will at best give an opinion — as Mr. Justice Barron has done — as to its view but will not explain why a halt was put to the investigation into the murder of Seamus Ludlow or identify who made the decision. At most, we will get the opinion of a person who conducted the investigation because the interrogation of information and documents, which forms part and parcel of a tribunal of inquiry, will not take place.

Members of the committee will be more familiar than I with the debate that took place in the House on the purpose of the Commissions of Investigation Bill when that legislation was before it. A number of submissions were made in respect of the Minister for Justice, Equality and Law Reform in terms of the intended duties of commissions of investigation. He was careful to tell the Dáil that they were not intended to replace tribunals of inquiry but to provide an additional tool in dealing with inquiries such as the recent Ferns Inquiry or the forthcoming investigation of the handling of allegations into sex abuse in the Dublin archdiocese. They are appropriate in such instances because many people would not come forward to an inquiry unless they were guaranteed a level of confidentiality or privacy with regard to their testimonies. However, they are not appropriate to this type of inquiry, where the very gathering of knowledge has to be done in the open so that everybody can see that the process is transparent and accountable.

A further reason why this case should not be sent to a commission of investigation is that the subject of the inquiry in this instance is the State itself. How could we have confidence in an inquiry, no matter how properly conducted, commissioned by and under the control of the Government into the actions of previous Governments? Who could have faith in the outcome of such an inquiry when it would be conducted behind closed doors and in private? A commission of investigation would be a Government commission established by a Minister, presumably the Minister for Justice, Equality and Law Reform.

I understand that the sub-committee attempted to overcome this by delegating the Dublin and Monaghan commission of investigation inquiry to the Department of the Taoiseach but this is more fundamental. The State is potentially involved at the level of the Departments of Justice, Equality and Law Reform, the Taoiseach and Foreign Affairs, as well as the Garda authorities. These organs were all potentially involved in the decision taken in the Ludlow murder investigation. The Minister chosen to conduct a commission of investigation would set the terms of reference. Is that acceptable? He would also set the timeframe. Is that acceptable? The Government could terminate the commission under the Commissions of Investigation Act whenever it so chose. It is not an appropriate vehicle to conduct the sort of simple, focused inquiry necessary in this case.

For those reasons, we ask the sub-committee to recommend in this instance that a public inquiry with full statutory powers would be convened to answer the four questions I tabled on the final page of our submission. Was the murder of Seamus Ludlow properly investigated in 1976? Why were credible leads given to the Garda by the Northern Ireland police force, at the latest in January 1979, not followed up? Why was the real evidence gathered at the scene not preserved? Was a decision taken not to pursue the investigation of the murder of Seamus Ludlow and, if so, by whom was it taken and for what purpose? On behalf of the Ludlow family, we request that the sub-committee recommend a public inquiry into those four questions.

Chairman

I thank Ms Murphy. We will start with questions from Deputy Costello.

Deputy Costello

I thank the delegation for putting forward a powerful presentation. It touches on all the issues we have been dealing with in recent weeks. The question of our response to the recommendations made by the delegation now arises.

The recommendation is for the establishment of a full public inquiry into the murder of Seamus Ludlow. The delegation says that the public interest and consistent demands support the establishment of a public inquiry under the Tribunal of Inquiries Act 1921 in this instance. It was argued that this is the only way to go about it and that no alternative is feasible. In the report on the Dublin and Monaghan bombings, we made a number of recommendations.

There is a question of the flawed investigation, as the witnesses see it, that has taken place, which would be the substance of the inquiry. There is then the question of documents that were missing, documents relating to forensic material and Garda and departmental files. It appears a great deal of preparatory work would be required to determine the information and documentation that is available and whether more can be found. Is that not the case?

Mr. MacGuill suggested that Mr. Justice Barron accepted, without question, everything he was told, including the statements made by the various parties and the indication by the Garda that it did not possess more files. Is the determination of the material that might still be extant or to which Mr. Justice Barron was not able to gain access an appropriate subject for a tribunal of inquiry? Would such a determination not be better dealt with through a commission of inquiry investigation or one established specifically to examine the matter on a preliminary basis before deciding whether to proceed further? Can one justify making this issue either part of an overall public inquiry or a preliminary step to a public inquiry?

Mr. MacGuill

The family's view of the issue is plain. There are issues of credit to be adjudicated upon in public. It is a truism, that justice should be seen to be done. Documents can be provided swiftly in advance and the tribunal would have the authority to direct the production of documents. It could send in its own personnel to seek out the documents and not simply accept the Department's determination on what documents are relevant; it would cross-reference and check. For example, it is inconceivable that the minutes of the RUC meetings which started after the Baldonnel meeting were not considered to have potential relevance in this case. Production of these documents can be compelled and a tribunal of inquiry is the best place to test this because the public would hear officials accounting for how these documents went missing and the efforts made to locate them. The public will not hear that explanation under a commission of inquiry because the information would be communicated privately to the commission and, as we know, it is often done in a painfully slow manner.

It must be borne in mind that the family has been waiting for almost 30 years. I am sure it will not mind me saying that some family members are in advanced years and some have died since this process started. They want this matter dealt with in the quickest possible fashion. A tribunal of inquiry, which could demonstrate publicly the steps being taken, could have a preliminary public hearing on the issue of missing documents. One very quick way to make somebody accountable for searches would be to put a departmental secretary in a witness box to explain what files or documents he or she has searched for and how he or she failed to find them. It would almost be a form of tribunal "name and shame".

Deputy Costello

The Garda officer responsible for conducting the search indicated to the sub-committee that the documentation in the Garda files was examined extremely thoroughly and that gardaí went to considerable lengths to examine everything but did not uncover any material other than that which was produced. It appears that it would be a long and tedious business to go through every file held by the Garda and Department of Justice, Equality and Law Reform. Will Mr. MacGuill elaborate on how he envisages this would be done? Would a professional person with experience of filing systems — for example, a librarian — conduct the search on behalf of the inquiry?

Mr. MacGuill

There have been a number of examples of inquiries, the best of which is perhaps the Bloody Sunday inquiry of recent years, during which exactly this type of exercise was carried out. What has happened to date is that the tribunal of inquiry has been overly casual. The sub-committee heard last Thursday from Mr. Justice Barron that he was given an assurance that no minutes existed. It also heard evidence regarding the RUC-Garda meetings and evidence from former Garda Commissioner, Laurence Wren, that not only were minutes kept but they were given to the Department of Justice. We know there was contact on an almost daily basis between C3 and the Department. Is it really credible that the documents do not exist or cannot be found? If the tribunal of inquiry had the least doubt as to whether it was receiving full co-operation, an archivist, former civil servant or expert in police practice — perhaps even someone from another jurisdiction — could be engaged to identify categories of documentation which may exist but have not been provided. This exercise occurs daily in even the most mundane litigation. There are perfectly good court procedures to compel parties to produce lists of documents and to explain the position regarding documents thatare missing. It is straightforward and can beeasily managed. It should not deflect this sub-committee from directing a tribunal of inquiry.

Ms Murphy

When he appeared before the sub-committee, Commissioner Conroy said that what had been given to Mr. Justice Barron — I will be corrected if I have the reference wrong — was all material relevant files. Are these the material relevant files as considered by the Garda Síochána or are they all material files? The question arises as to who is conducting the analysis of what is relevant and what is material. Is it satisfactory that a party that is being investigated decides what is material to the investigation? That is one of the areas that needs to be teased out and investigated. Mr. Justice Barron said that he accepted what he was told regarding the absence of files, while at the same time he found it difficult to accept that no file existed. This is a big issue and it would be within the competence of a tribunal of inquiry to get to the bottom of it.

Deputy Costello

Would a tribunal of inquiry be needed if the appropriate professional person were given access to the Garda and Department of Justice, Equality and Law Reform files and could ask questions, etc.? Does this need to be incorporated within the parameters of a public inquiry or could it be a separate operation?

Ms Murphy

If it were separate, it would delay the process. It should be part of the process.

Deputy Costello

One way or another, it will need to be preliminary to much of the work to be done in order to identify the documents.

Ms Murphy

In our submission, we are clear it is important that it should be done by the persons conducting the inquiry.

Deputy Costello

Some files in Northern Ireland have also not been seen and these will remain unavailable. What is the response of the witnesses in respect of that matter?

Mr. MacGuill

We have a twofold response. The issues central to the terms of reference are primarily based in this jurisdiction and an inquiry could proceed in the absence of co-operation from the North. However, we do not necessarily accept that co-operation would not be forthcoming. I believe there is a reference in the presentation of Ms Jane Winters to a wind of change and that the attitude of Sir Hugh Orde seems to be quite different to that of his predecessors with regard to making documents available. It is possible that assistance could be found. If no assistance were forthcoming, it would be publicly demonstrated that this was the case because, at a public hearing, the tribunal chairman could make the point that he or she had made a request and had been stonewalled and refused. How does this lie in terms of the obligations of our neighbour to assist in establishing human rights in this jurisdiction? Ignoring a public request makes a statement in itself. We believe the files may not be necessary. They may be available and if they are not, that indicates a state of mind of which the public should be aware.

Mr. Coffey

I wish to make a contribution on this point. There is the evidence of Chief Superintendent Cotterell and Superintendent Courtney, both of whom confirmed receiving direct information from the RUC as to the identity of the four primary suspects. With respect, we submit that there is no extraterritorial aspect to this inquiry. The inquiry is into the alleged failure on the part of the organs of this State. It is internal to this State and there is no need to go outside the boundaries or parameters of the State. The inquiry is self-contained within the State. The witnesses are all within the State. The documentation is all within the State. Unlike the Dublin and Monaghan cases, there is no extraterritorial aspect. With respect, that would be a distraction and a cul-de-sac.

Deputy Costello

Surely there is an extraterritorial aspect. The perpetrators came from outside the State. The information supplied in 1979 came from outside the State, as did the information supplied before 1979, perhaps in 1976 in regard to suspect No. 3. There are issues of collusion. Surely there is an enormous amount that is extra-jurisdictional that would be relevant to a public inquiry if the matter were to be dealt with in a comprehensive fashion.

Mr. Coffey

The source of the information is extraterritorial. The primary issue is what was or was not done on foot of that information. The action or inaction on foot of that information is internal to this State. The point is what was or was not done on receipt of the information. If there was an issue as to whether the identity of prime suspects was ever passed on, we would have to go outside the jurisdiction, but there is no such issue. We have a number of separate sources within senior ranks of the Garda all saying they received information at different points around the early part of 1979. It is primarily a question of what did or did not happen from May or June 1979 onwards.

There is another point in that Mr. Justice Barron posited the possibility of policy decisions vis-à-vis extradition. That may very well have applied until December 1982, but in that month the Supreme Court handed down a judgment in the first McGlinchey case which dramatically transformed the whole law on extradition. For approximately five to seven years post-1982 there was a series of high-profile extradition cases, all of which applied the judgment of the Supreme Court as handed down in 1982. Significantly, in most of those cases Commissioner Wren was a named party. It was not a question of policy that may have applied between 1979 and 1982 having lapsed. Commissioner Wren was actively involved. Given the submissions on behalf of different members of the Garda to the effect that the inquiry into the murder of Seamus Ludlow was ongoing — it was consistently submitted that the inquiry into this murder was ongoing — it begs the question why, assuming and accepting the policy around the issue of extradition was uppermost in people’s mind since 1979, the issue was not revisited in the post-McGlinchey period. These matters are all internal to this jurisdiction.

Deputy Costello

Does Mr. Coffey regard the statement by Mr. Moloney and his lawyer that one of the suspects is prepared to come to this jurisdiction as fairly irrelevant to the inquiry?

Mr. Coffey

It removes any obstacle. All assistance to any inquiry is welcome and beneficial. It is not a question of "if" or "may". In that instance it is a question of a person indicating a willingness to come before a public judicial inquiry and give clear factual evidence establishing certain things which the family accept. It does not trespass into the area of the Garda investigation. The primary issue here is the Garda investigation. The witnesses making themselves available are of great assistance in regard to the wider issues surrounding the unlawful killing of Mr. Ludlow. However, the primary issue is the reason for the failure of the Garda inquiry to go anywhere after 1979 on foot of clear information being handed on to it.

Deputy Costello

How does Mr. Coffey define the parameters of a public inquiry? Are they purely to determine the reasons an investigation was flawed or did not succeed or do they go beyond that to determine further where the responsibility lay in terms of the ongoing investigation? The Garda Commissioner has told us he will be in contact with the PSNI regarding whether or not the case can be re-opened. Is Mr. Coffey's call for a public inquiry focused purely on the flaws in the Garda investigation in 1976 and in 1979?

Mr. Coffey

Yes. Further to stated reasons furnished by the DPP in Northern Ireland and our own DPP, we must accept, reluctantly, that the prospect of bringing a prosecution, let alone a successful one, are extremely remote.

Deputy Costello

Is that Mr. Coffey's position?

Mr. Coffey

Yes. The point is that even if a prosecution were taken that, of itself, would not necessarily address any of the issues regarding what did or did not happen in 1976, 1979, and from 1982 onwards. The possible criminal trial of any suspects would not necessarily go into that.

Deputy Costello

Mr. Coffey stated earlier that there was a wilful decision not to interview suspects at the time.

Mr. Coffey

Yes.

Deputy Costello

We do not have any documentation to that effect. We have a statement by the main investigator, Detective Superintendent Courtney that he was told certain things, which were denied. Is that not part of what should be the outcome of the investigation? There is an inherent presumption that there was a decision made in a deliberate, wilful fashion by the State that there should be no further progress in the investigation.

Mr. Coffey

According to the evidence of Detective Superintendent Courtney, subsequent to his request to have the suspects interviewed, he was left with an impression that a policy decision had been taken. None of the other people primarily involved in making that decision have come forward and offered any explanation or reason why the request to interview suspects was never taken up. One of the substantial gaps in all of the investigations and inquiries is that nobody has come forward to say why no action was taken on foot of that request. The nearest we have is the feedback Detective Superintendent Courtney got. The information he received can only be interpreted as a wilful, conscious decision not to have the four suspects interviewed.

At the far end of the equation, when the person who Mr. Moloney indicated would be willing to give evidence before a tribunal was interviewed in the North, he got a similar indication that nothing further was going to happen. The fact is that none of the people in senior management of the Garda or the Department of Justice, Equality and Law Reform has ever come forward and said a decision was taken or not taken. Nobody has ever doubted Detective Superintendent Courtney's evidence to the effect that he made a request.

Deputy Costello

At this point we do not know whether a decision was taken.

Mr. Coffey

Is it not remarkable that following two internal Garda inquiries, inquests and the hearing of submissions by this sub-committee that we are left wondering about a fundamental core issue? It must be borne in mind that we, as officers of the court, and members of this committee, as elected representatives, have an imperative to uphold the Constitution. That is the overriding imperative for all of us here. On the face of it, there has been a gross failure to do so.

Deputy Hoctor

I thank the legal team for its submission and questions. I do not come from a legal background but I believe we need to establish before the legal team leaves today what it is the sub-committee is working towards at this point. The legal team appears to be placing enormous emphasis on the failure of the Garda Síochána at the time to pursue to the very end information it received at the beginning of the investigation. As I understand it, the sub-committee's task is to consider how best it can assist in progressing the next stage of the investigation into the murder of Seamus Ludlow. We are aware that the suspects mentioned to the sub-committee were resident beyond the Border.

Ms Murphy asked earlier why credible leads given by the RUC to the Garda in 1979 were not followed up. Is it not the case that evidence taken in Northern Ireland will be relevant to the final outcome of this inquiry? I find it hard to believe that the legal team does not see merit in what we know transpired over the Border despite evidence given by various people who appeared before the sub-committee. Surely, that information must be relevant to the final outcome here.

If the public inquiry is granted it too will fall short of that information which Mr. Justice Barron stated it was beyond his limit to obtain. The sub-committee is frustrated by the fact that the family is seeking a public inquiry in the knowledge that it will not be able to obtain the information which Mr. Justice Barron failed to find.

Chairman

Perhaps Deputy Hoctor could put a question to the delegation.

Deputy Hoctor

I refer to question No. 2 from Ms Murphy about the credible leads given to the Garda Síochána by the RUC and how the sub-committee is to establish what were those credible leads without obtaining the relevant information from Northern Ireland. That information will not become available through a public inquiry.

Mr. MacGuill

The family, like many others, were the victims of an appalling violent crime with which they have had to come to terms. The perpetrators of that crime will not be prosecuted. However, much worse than that random killing was the calculated conduct by agents of this State for three decades in misleading the family and failing to investigate the case properly. In so far as the Northern Ireland dimension is concerned, this is almost the reverse of the usual situation, namely, we are not saying there was no co-operation from the RUC to investigate the case, rather it offered assistance which was not taken up. Who made the decision not to avail of that assistance? I do not believe there would be the least difficulty in investigating the family's continuing complaints without evidence from the North. What it comes down to is that assistance was offered but it was not taken up, perhaps for political reasons or because of incompetence, we do not know. However, it is accepted by all sides that the Garda investigation was misconducted. That is Commissioner Byrne's position although he has not attributed blame in terms of who was involved and why that happened. Those questions form part of question 4.

Deputy Hoctor

Should not the legal team, as part of its task, make inquiries about the suspects identified? I am interested to know what the family wants. Is it seeking an investigation into the failure of the Garda Síochána to bring this case to a close or is it more than that?

Mr. MacGuill

A citizen of Ireland was murdered. That citizen was a member of the Ludlow-Sharkey family. The family accepts for the reasons already set out that there will never be a successful prosecution in this case.

Deputy Hoctor

Why not?

Mr. MacGuill

For reasons such as delay and missing evidence. The Director of Public Prosecutions has accepted that the decision taken in the North was a correct legal decision. The reasons for this are set out in the submission, namely, the non-compellability of two main witnesses and their credibility, given one has no recollection of the event and the other presented conflicting evidence. There will be no prosecution in this case. The family's continuing complaint relates to why there will be no prosecution and why they have been treated so badly by the State. At the core of the inquiry is whether a deliberate decision was taken not to investigate the case like any other in order to demean the family for some political purpose or whether casual and incompetent conduct was to blame.

The Minister tried to deflect the sub-committee into believing that what is being sought is a civil prosecution for murder. That is not what the family is seeking. It is concerned about the greater failing in this case, namely, why organs of the State acted in the fashion they did and why so many questions remain unanswered.

Deputy P. Power

I thank the delegation for attending today. The sub-committee appreciates the legal team's extremely well argued submission. The written document is impressive and concise and will be examined in detail.

I too would like to address some of the issues raised by Deputy Hoctor. The nub of the matter is, can the legal team convince us that a full, sworn public inquiry would uncover significant new information of the type required to bring about closure, not alone that sought by the family but by us as legislators and the wider public, in terms of identifying any serious misconduct on behalf of an organ of the State as happened in this case?

I have a number of questions for Mr. MacGuill. How can we as a sub-committee be convinced that were we to recommend the establishment of a sworn public inquiry it would arrive at conclusions which differ from, or are more definitive than the conclusions already arrived at? How precisely would a sworn public inquiry do that?

Mr. MacGuill

Even taking the experience of these hearings, quite an amount of new material emerged as a result of questions posed by members even though they were limited to pursuing a particular line of questioning given the rules attached to the sub-committee's work. Professional judges make decisions daily based on evidence from witnesses and so on. A judge would be required to decide whether he or she was going to accept by way of preference the evidence from Superintendent Courtney or Commissioner Wren. He or she might obtain assistance from further documents that would indicate one or other witness was likely to be more reliable on a point. That type of exercise, which is not a difficult one, is conducted in the courts every day. The inquiry would be greatly assisted by the fact that, for instance, witnesses would be questioned by parties with information about the case, be it members of the family or Garda witnesses who themselves wish to call evidence. One would expect an inquiry would have available to it much more material than is currently available to this committee or was available to Mr. Justice Barron.

Deputy P. Power

Who would——

Mr. MacGuill

The family would call witnesses. Former Commissioner Wren would almost certainly wish to be represented given that his conduct is impugned. The sub-committee has heard descriptions of documentation which has not yet been examined, in particular the minutes of the RUC-Garda meetings and the Cabinet sub-committee minutes. A further trawl for documents in the Department would be informative. Let us imagine how this might work. A chairman would be appointed to the tribunal and would then send directions to various parties to produce documents. The parties would then be called to account for those documents. A witness giving evidence on missing documents could be cross-examined. In the course of that process a judgment could be made as to whether there had, in fact, been a reliable and effective search or if further searches should be carried out. Cross-examination could establish whether a party had taken a grudging attitude to the volunteering of documents. The process would be carried out in public.

Deputy P. Power

We carried out that exercise in public. We spoke to Assistant Commissioner Farrelly, the Secretary General of the Department of Justice, Equality and Law Reform, the Garda Commissioner and the Minister for Justice, Equality and Law Reform, all four of whom would receive and be responsible for requests for information from the chairman of a proposed inquiry. We asked them directly what information and material would be forthcoming from their organisations, in addition to the information already available, if a request was made by a public sworn inquiry and all four said nothing further would be forthcoming. I do not want to betray any conclusions to which I might have come, but I wish to draw Mr. MacGuill on the issue. Are we not, as a sub-committee, entitled to listen to what those four individuals said to us and take their views into account?

Mr. MacGuill

Absolutely, but sub-committee members should also take their own experience into account. While we have not seen all the correspondence the sub-committee has received, we gather from the transcripts that part of the members' experience has been that the Garda Commissioner carried out an inquiry in response to a question posed by a member and wrote back to say he could confirm that Mr. Livingstone was interrogated in Dundalk Garda station in 1975 by two armed RUC men. That information was not made available to Mr. Justice Barron. In a serious inquiry of the kind he carried out where the core issue was whether there had been co-operation between the RUC and the Garda and what level that co-operation constituted, how did that information only emerge in response to questions put by members of the sub-committee? It is exactly the exercise of questioning document holders as to the whereabouts of documents which will produce them. We want to be in a position to question them. The transcript is an indication that there is more. The sub-committee produced material.

Deputy P. Power

Of the four requests, the key one, on which Mr. MacGuill has probably seen the sub-committee focus, relates to who made the decision to block this. Ordinary members of the public who read the report will have seen Mr. Justice Barron's conclusion that the inquiry considered it most probable that the decision was made by former Commissioner Wren. The report also stated that before making his decision, it is likely he would have discussed the matter with other gardaí and, possibly, senior officials in the then Department of Justice. The absence of files, however, means this cannot be confirmed. Given that conclusion, how would a public sworn judicial inquiry come to another conclusion? To an ordinary member of the public, the answer is that Mr. Wren stopped it when deputy commissioner.

Mr. MacGuill

Mr. Justice Barron appears to have come to that conclusion in relying on the evidence of Superintendent Courtney. Undoubtedly, Commissioner Wren would want to cross-examine Superintendent Courtney on that evidence. Commissioner Wren has indicated to the sub-committee that the file would support his account. He also conceded to the sub-committee that he was present at many meetings between the RUC and the Garda at the time, at which minutes were taken. We know those minutes are in the Department of Justice, Equality and Law Reform and have not been given to Mr. Justice Barron. My understanding is that the sub-committee has not seen them either. Minutes of meetings in which Commissioner Wren participated at or around the relevant time which are the subject of the inquiry as to whether he gave the direction in question may be highly informative as to what his state of mind and policy then was. The absence of the minutes and the fact that Mr. Justice Barron was not even apprised of their existence indicate a serious shortcoming in the conclusion at which he has arrived and, consequently, indicate that the matter cannot be allowed to rest with the report, qualified as it is even by Mr. Justice Barron's own admission.

Deputy P. Power

Former Commissioners Byrne and Conroy admitted to the sub-committee that there were serious failures on the part of the Garda in the investigation of the murder of Seamus Ludlow which was not carried out correctly. On that basis, they responded to Deputy Hoctor with an apology. Does that not answer one of Mr. MacGuill's central questions as to why the investigation was not properly conducted? The Garda states it was not properly conducted because the organisation failed in its duty to investigate properly for the reasons the former Commissioners set out. Would a public sworn inquiry come to a conclusion other than that the Garda failed in its duty fully to prosecute the investigation?

Mr. MacGuill

While I do not want to nitpick, the concession made by Commissioner Byrne is that there were institutional failings in the post-1979 period within the State. However, he continued to defend the 1976 investigation. Our first question, therefore, is whether there was a proper investigation in 1976. Frankly, the family is strongly of the view that there was not. It emerged before the sub-committee only last Thursday that the Garda possessed information prior to the murder which has never been alluded to in the case to date. There is an indication of a very serious state of affairs that there may have been an opportunity on the part of the Garda to prevent the murder taking place, which was not availed of. At a minimum, the investigation did not follow a pre-identified and significant line of inquiry. It may be the case that the Garda is embarrassed by such a failure.

Deputy P. Power

I thought the Commissioner said there were failings in the Garda investigation from the outset.

Mr. MacGuill

I do not think so.

Deputy P. Power

Mr. MacGuill refers to matters between 1976 and 1979.

Mr. MacGuill

As Mr. Justice Barron accepts, the official position has been to assert that the first investigation was thorough and competent. Mr. Justice Barron rejects that it was wound down unduly quickly, of which conclusion we have significant criticisms. Ms Murphy has dealt with that issue this morning. Everything must be reconsidered in the light of the new letter referred to for the first time last week. It is another document which has emerged out of the blue and only in response to a member's question. I think it was Senator Walsh who asked it.

Mr. Coffey

Former Commissioner Wren, a holder of high office at the time, told the sub-committee that in his opinion there was no failure on the part of the Garda. There is, therefore, a conflict between him and former Commissioner Byrne.

Deputy P. Power

That was an issue for members, all of whom heard the completely different accounts given. It is the reason we asked Mr. Justice Barron who, to be fair to him, spent a great deal of time examining the matter, if it would be possible in a sworn public inquiry to reconcile Mr. Wren's denial that he had made the decision and the other evidence before us. His opinion was that it would be impossible.

Chairman

There are two opinions in question, those of former Commissioner Byrne and former Commissioner Wren, and we will not go into the matter.

Ms Murphy

It is the function of a public inquiry to resolve those difficulties.

Deputy G. Murphy

The fourth question relates to the central issue. If a decision was taken politically not to pursue the case, by regulation or a member of the Garda, the Garda inquiry could not have been carried out properly. If that is so, everything else falls into place. When the sub-committee interviewed members of the Garda, it was given conflicting views. I attributed those views to the fact that gardaí carried out criminal investigations, on a day-to-day basis, in co-operation with the RUC. That was in accordance with the regulation to which former Commissioner Wren referred in evidence to the sub-committee. Such activity was acceptable under that regulation.

What was not acceptable under the regulation was when it was a political offence was being dealt with. In this particular case, a significant political issue arose when members of security forces in Northern Ireland were mentioned as potential suspects. There would not, in such circumstances, be the type of co-operation that would obtain in respect of a criminal case. Mr. Justice Barron decided that an actual decision was made by senior members of the Garda Síochána. Such members and former members of the force indicated that this decision was made through interpretation of a regulation. If we can establish that decision was taken, the other issues are moot because the Garda was not in a position to carry out a proper investigation.

Ms Murphy

Mr. Justice Barron expressed his opinion as to what was more likely. He has not tested the various accounts that have been given, such as those provided by former Commissioner Pat Byrne, former Detective Superintendent Courtney or former Commissioner Wren. He received information and accepted the word of those who gave it to him that there is nothing else. He said, in terms of looking at the information he had received, but not tested, something seemed to him "more likely". I suggest that this is the status of Mr. Justice Barron's conclusion. It is not a finding of fact such as that which would result from a public inquiry.

A public inquiry would test each of those issues and decide whether former Commissioner Wren was correct in stating that no decision was taken. His view is that no decision was taken because it could not have been made due to the fact that there was nothing to decide upon on foot of the law being clear. Everybody disagrees with him because nobody else knew evidence about the 1953 directive would appear. That matter is up in the air.

If, for the sake of argument, a tribunal of inquiry came to a conclusion that a decision was taken by former Commissioner Wren, questions would arise as to why he has to date denied that such a decision was made and who else was party to the decision. There are many possibilities that have not been explored or nailed down, notwithstanding two Garda inquiries. It is an unfortunate fact in public life that, in recent years, the Garda has displayed something of an inability to investigate its own affairs.

There have been two detailed inquiries and, even with the various resources at the disposal of the Commissioner and his predecessors, basic questions have still not been answered. Was a decision taken and, if so, who took it? What was the reason behind it? The answers are still being sought after two Garda inquiries and a private inquiry. These are important questions.

Deputy G. Murphy

That is the nub of the matter.

Ms Murphy

It seems to me that it is ultimately the important question.

Deputy G. Murphy

I thank the witness.

Ms Murphy

It is significant that despite all the resources of the Garda Síochána, nobody has yet procured the answer. A public inquiry would obtain it.

Mr. Coffey

I wish to add another point. If Mr. Justice Barron is correct in his assumption that matters of extradition lay behind this possible decision, as stated by me earlier, that would have ceased after the Supreme Court judgment of December 1982. In light of all the Garda evidence that this is an ongoing investigation into a murder, the family is entitled to know what, if any, policy review took place in the course of 1983 or 1984. This holds particularly with regard to repeated assertions by the Garda that this is an ongoing investigation.

Deputy G. Murphy

I accept that. My basic contention is that if that decision was taken at that particular time, the investigation of the Garda would have been frustrated. That is a key question to be answered.

Ms Murphy

Yes.

Senator J. Walsh

I apologise for being late. I was obliged to make a 30-minute detour between Clonroche and Enniscorthy, which delayed me somewhat.

Ms Murphy

We are familiar with the area.

Senator J. Walsh

Our guests' presentation has been focused and will be helpful to the sub-committee. In their submission, there is reference to counsel on behalf of the Commissioner of the Garda Síochána at the reconvened inquest objecting when certain questions were posed. Perhaps the answer was given before I arrived but is a list of those questions available?

Mr. MacGuill

We can certainly obtain a transcript of the inquest's proceedings for the Senator.

Senator J. Walsh

That would be helpful.

Mr. MacGuill

We are not making a particular criticism of the counsel because the questions were outside the scope of the inquest. The point was to illustrate that we did not get answers at that forum.

Senator J. Walsh

I accept that. If we could see the questions, perhaps we could make some judgment as to the reason for the objection to them.

Much of the submission is based on the comparative merits of a commission of investigation and those of a public inquiry. Am I correct in thinking that a public inquiry would have the powers to compel witnesses?

Ms Murphy

Yes.

Senator J. Walsh

Would a commission of investigation have the same powers?

Ms Murphy

Yes, except that it would not conduct its investigations——

Senator J. Walsh

On that point, a public inquiry would take sworn evidence from witnesses. Would a commission of investigation do the same?

Ms Murphy

Not necessarily.

Senator J. Walsh

Would it have the power to do so?

Ms Murphy

It would have the power to do so but such a commission is designed, in the first instance, to be a voluntary investigation. If the Oireachtas debates relating to the passing of the relevant Act are examined, it can be seen that a new form of investigation was being added to the armoury of investigations. It was designed to bring about a voluntary meeting of people to provide necessary information.

Senator J. Walsh

Do the witnesses have concerns in that regard?

Ms Murphy

We have huge concerns in that area.

Senator J. Walsh

Is it reasonable to assume that in a case where there is conflicting evidence among witnesses, there would be an immediate need to take sworn evidence?

Ms Murphy

Yes, except sworn evidence may be taken from a witness but nobody outside the commission of inquiry will hear it. Nobody else would know what such a witness said and no one sees the process by which an inquiry reaches a conclusion.

Senator J. Walsh

With regard to examining and searching files, does a public inquiry have the power to send a person to do so?

Ms Murphy

It has the power to make directions with regard to discovery of documents. In the event that it considers that such directions have not been complied with, it also has the power to bring a person before it and examine him or her on oath, which is a significant power, regarding the sufficiency of any discovery he or she has made. In light of what has emerged in terms of additional documents that appeared during these hearings, it can be appreciated why such a power is necessary.

Senator J. Walsh

Does a commission of investigation not have the same powers?

Ms Murphy

It has powers to compel documents. The process is not conducted in public and one would not know what documents have been sought and what inquiries have been made with regard to those documents. That is the problem. As Mr. MacGuill stated, we and the family only became aware in the course of these hearings of a significant letter from 1976. Nobody knew of this letter. Where the process is carried out in public, everybody is aware of the documents involved. If the process is carried out by a commission of investigation, hearings are held in private and nobody knows what has been brought forward, what has been discovered or whether the inquiries with regard to documents were exhaustive. Mr. Justice Barron has said he accepted what he was told, and that has turned out to be inaccurate in many respects.

Senator J. Walsh

Does it have the power to do that?

Ms Murphy

Yes.

Senator J. Walsh

A public inquiry is held in public whereas a commission of investigation is generally held in private, though it has the power to go into public session. I understand that the inquiry into the Dublin and Monaghan bombings has not held public sessions.

Ms Murphy

It is designed to be private but has the power to hear some evidence in public.

Senator J. Walsh

What are the deficiencies in not having public sessions?

Ms Murphy

Deficiencies are evident from the fact that two Garda inquiries, conducted by experienced gardaí with full investigative powers and the machinery of the State behind them, have not come up with the answers. Why have they not done so? Have they asked the right questions and looked in the right places? Two internal Garda inquiries and a private investigation by Mr. Justice Barron, which is very similar to a commission of investigation, have not come up with the answers.

Senator J. Walsh

Equally, a public inquiry may not come up with the answers.

Ms Murphy

I have every confidence that it would, because when people account for themselves under oath in a public forum it produces answers not previously forthcoming. Issues can be teased out, as the Senator will have noted as he listened to the witnesses at this committee. It prompts many questions that we, as lawyers reading the reports, would be anxious to pursue. An inquiry should be held in public so that it is thorough and accountable.

Senator J. Walsh

For example, many new questions have arisen out of the public inquiry into the Stardust disaster.

Ms Murphy

I am aware of that.

Senator J. Walsh

It does not necessarily follow, however, that a public inquiry will produce definitive answers.

Ms Murphy

An inquiry is as good as the information it has and the manner in which it is conducted. Our submission suggests very focused questions and I believe a public inquiry will get to the bottom of it.

Senator J. Walsh

An advantage of a public inquiry is the power to cross-examine, which is not available under a commission of investigation.

Ms Murphy

Yes.

Senator J. Walsh

That means, as Ms Murphy pointed out, that the findings of a commission of investigation will be a matter of the opinion of the inquiry rather than a matter of fact.

Ms Murphy

A finding of fact.

Senator J. Walsh

Is it not fair to say that in a public inquiry the finding of fact is based on the balance of probability?

Ms Murphy

Almost certainly, but it will accept or reject testimony. Instead of Mr. Justice Barron saying he has a certain piece of information from Detective Superintendent Courtney and another from former Garda Commissioner Wren, and that he prefers one to the other, a public tribunal of inquiry would state that it accepted certain evidence and would give its reasons. It would look behind the evidence to examine if it was credible and then make a finding of fact. A commission of investigation, as I understand it, cannot do that.

Senator J. Walsh

From memory I have six points of comparison. Have I omitted anything Ms Murphy regards as significant in terms of comparing both processes?

Ms Murphy

The family members cannot participate in a commission of inquiry so a public inquiry is a huge advantage to them. They will be able to see the process unfold.

Mr. MacGuill

From a practical point of view there may yet be persons with relevant information who might not realise so until they see the process take place in public. For example, when Mr. Livingstone saw that Mr. Justice Barron had finished a report on police practice, he contacted him. Had that exercise been a public inquiry he would have submitted his information for consideration by Mr. Justice Barron. We now know that Mr. Livingstone was absolutely correct and the Commissioner wrote to the committee confirming this. That happened because of the publicity surrounding the proceeding.

Senator J. Walsh

Would the Chairman allow Deputy Power to ask a question at this point on the commission of investigation report, which we have just received? I have one further question.

Chairman

Deputy Costello will also ask a question.

Deputy P. Power

Section 16 of the Act states that for the purposes of an investigation a commission may do any or all of a number of things, including examine or cross-examine any witness to the extent the commission thinks proper to elicit information on a matter under investigation. Ms Murphy indicated that a commission could not do that.

Ms Murphy

It can cross-examine only one witness at a time. If I were a witness before the commission today I could be cross-examined but no other witness would hear my cross-examination or have any input into it. The commission can cross-examine me if it wishes but nobody else is necessarily aware of the effect or result of that cross-examination. As it is conducted in private nobody other than the commission itself knows the result of that cross-examination.

Deputy P. Power

Surely if Mr. Patrick McEntee, the respected senior counsel, cross-examines somebody such as Assistant Commissioner Farrelly during the existing inquiry and is not satisfied with his testimony, he is entitled to make a conclusion of fact to the effect that he did not get appropriate co-operation.

Ms Murphy

No, he is entitled to state that he did not get appropriate co-operation but cannot make a finding of fact.

Deputy P. Power

Section 32 of the Act states that on the conclusion of its investigation a commission shall prepare written reports based on the evidence setting out the facts it has established.

Ms Murphy

That is where there is no controversy involved.

Deputy P. Power

It can establish facts. Ms Murphy indicated earlier that it could not.

Ms Murphy

I am relying for that on the examination of the Act by the Houses of the Oireachtas during its passage.

Deputy P. Power

I remember what was in the debate. The Act gives commissions of investigation power to establish facts based on the evidence put forward to it.

Ms Murphy

Is it section 31?

Deputy P. Power

It is section 32 (1).

Ms Murphy

My copy ends at section 23 and begins again at section 51.

Deputy P. Power

It is on page 24.

Chairman

Have we the report of the commission of investigation under the Act yet? Has any report been published? If the report by Mr. McEntee is to be the first then nothing has been tested.

Ms Murphy

That is true. It is clear that if a report of a commission of investigation is to be circulated to all the people who may be affected by it there will be draft, interim and final reports. It was described by the Minister as being the equivalent of an inspector appointed under the companies legislation examining a company. The report would be amenable to being judicially reviewed by the High Court with regard to its findings and an entire process must be followed before it is finalised. We will have to see what is produced in response to the McEntee commission of investigation.

Chairman

The nub of the problem is the decision in re Haughey, whereby someone being cross-examined in public has the right to legal representation, who can further examine a witness if it is felt that a client has been impugned.

Ms Murphy

Yes.

Chairman

Effectively, Ms Murphy is implying that with regard to cross-examinations, a commission of inquiry reduces the number of people in need of representation.

Ms Murphy

Yes, because they are conducted in private. However, it is less effective at being accountable and transparent in terms of how decisions are arrived at.

Deputy Costello

Section 10(1) of the Commissions of Investigation Act 2004, on how the commission conducts its investigation, states: "[a] commission may, subject to this Act and the commissions rules and procedures, conduct its investigation in the manner that it considers appropriate in the circumstances of the case". Section 11(1) states: "A commission shall conduct its investigation in private unless ... the commission is satisfied that it is desirable in the interests of both the investigation and fair procedures to hear all or part of the evidence of a witness in public". Section 11(2)(c) states: “the witness may be cross-examined by or on behalf of any person only if the commission so directs.”

Chairman

That is where the witness is heard in private.

Deputy Costello

Yes, but the commission can direct that a witness' evidence be made public. Therefore, the commission, whether composed of one or multiple persons, has considerable powers in organising the conduct of the investigation and can determine the elements of the inquiry which will be in public.

Ms Murphy

However, for an inquiry to become transparent, all its work must be in public. The Deputy pointed to section 10(1) but I direct him to section 10(2):

In conducting an investigation, a commission shall, to the greatest possible extent consistent with its duties under this Act—

(a) seek the voluntary co-operation of persons whose evidence is desired by the commission in relation to any matter within its terms of reference, and

(b) facilitate such co-operation.

In other words, it is intended to be a forum.

Deputy Costello

We recognise that it is intended to operate in a certain way but, within the terms of the Act, it can deal with an investigation in the manner and circumstances it considers appropriate. It can determine which parts of the investigation — or all of it if necessary — should be conducted in public.

Mr. MacGuill

One of the more eloquent assessments of the criteria for inquiries being conducted in public is set out as the Government's position in a letter from Deputy O'Donnell to Dr. Mo Mowlam in 1999 regarding the Pat Finucane murder. According to that letter, one of the grounds for holding proceedings in public is significant public concern about the conduct of the State or its agencies. Government policy is that these matters should be investigated in public but the commission is not constrained to hold hearings in public. The families are saying that the policy which applies to the State in respect of concerns on the conduct of the RUC and others should equally be applied in the case of the Garda Síochána. Simply put, public officers discharging public duties should be accountable in public.

Ms Murphy

Section 11 provides for an exception to the general rule that matters should be conducted in private and sets out the circumstances in which such an exception will apply. It does not provide for the inquiry to be conducted in public. It might have been an appropriate vehicle if it did.

Chairman

If a commission of investigation is established, will the delegation make a submission on conducting part of its work in public?

Ms Murphy

All of it should be conducted in public because if that was the case, we would not be debating it here. However, the general thrust of the Act is against holding proceedings in public. Section 11 provides for exceptions where it may be held in public and refers to the evidence of "a witness". That seems to run counter to the instruction that all proceedings should be in public.

Deputy Costello

Is there anything in the Act that precludes some or all of the inquiry being held in public?

Mr. MacGuill

That is why the committee should firmly state its recommendation for a public inquiry.

Deputy Costello

If I can restate my question, nothing in the Commissions of Investigation Act precludes the investigation taking place entirely in public.

Mr. MacGuill

Nor is there any provision to demand it. A mandate would be required.

Chairman

Can it be mandated? Would it then be a commission of investigation? It appears that a commission shall be conducted in private.

Ms Murphy

I am concerned that section 11(1) precludes it by stating: "[a] commission shall conduct its investigation in private, unless...". If it could be mandated, the inquiry should be held in public, however that is arrived at.

Senator J. Walsh

We will have to decide in private what, if any, course of action to take and the delegation's contribution is important in helping us to understand the route we will take. Ms Murphy noted that in terms of the Dublin-Monaghan bombings, the families and their representatives feel somewhat isolated because they were not fully engaged in the process. Equally, the tribunals running ad nauseam will be written into history books at huge cost to the State instead of producing anything of great value. These issues will influence any recommendation we make.

With regard to the four questions on the investigation, It struck me that other questions also arise. For example, why did the RUC sit on the information for 18 months before informing the Garda? Deputy Costello's question on the missing files is also material, as are the Government policies which impacted on the investigation. Why were these questions not included? We are working on an assumption, which is plausible from what we heard, that the statements taken by the RUC identified the perpetrators.

Ms Murphy

The reasons for that have been given by Detective Superintendent Courtney.

Senator J. Walsh

Arising from the coincidence of information he received.

Ms Murphy

The detail was also pertinent.

Senator J. Walsh

Does the delegation want to comment on whether additional questions should be raised?

Mr. MacGuill

Question No. 4 is framed broadly enough to deal with departmental policies because that would explain the purpose behind which a decision was taken. Question No. 2 is open to amendment if the committee believes the delay on the RUC's part should be investigated, although the emphasis is on why nothing was done rather on delays in the supply. I accept that the delay is also a troubling matter.

Senator J. Walsh

Finally, given the other reports produced by Mr. Justice Barron and the conclusions thereof, have there been any similarities in the outcome in terms of the failure of investigations to advance any of the matters?

Mr. MacGuill

The primary difficulty Mr. Justice Barron seems to frequently come across is the missing files. How is that in every inquiry he embarks upon, persons who had custody of State documents, effectively public property, have misplaced them? That is a comparison. The lack of co-operation from the authorities in the North is another clear parallel.

This committee will review all Barron reports at a macro level later on and we will be happy to make submissions but the lesson from the reports is that there are official forces at work on both sides of the Border who are prepared to obstruct and hinder.

Chairman

The politics of the day had a major influence on what happened then, with murders occurring on a regular basis affecting political and policing decisions.

Mr. MacGuill

It was implicit in the evidence the committee received from former Minister Collins that security was very much a political issue at the time and he seemed to accept or endorse much of what Commissioner Wren had said but then rowed back on that and said that maybe there was something he said to Mr. Justice Barron that he had not intended to say. There is no doubt, however, that there was a day and daily interaction between C3 and the then Department of Justice and criminal investigations were political issues. It is quite possibly the case that the unfortunate Ludlow family were pawns in this political chess game and suffered as a result.

Deputy Costello

I have two questions. I would like to return to the focus of the public inquiry on the investigation. The title of Mr. Justice Barron's report is Report of the Independent Commission of Inquiry into the Murder of Seamus Ludlow, not into the investigation of the murder of Seamus Ludlow.

Ms Murphy

We do not believe anything would be achieved by spending public funds on establishing the perpetrators. The perpetrators will not be brought to justice. Such an event would be dependent on support from outside this jurisdiction which may or may not be forthcoming. It is clear, however, that the failure to investigate is the primary reason no one was brought to justice.

Deputy Costello

I accept that but the report is into the murder of Seamus Ludlow. Our terms of reference do not mention the investigation once, they mention recommendations from the inquiry into the murder of Seamus Ludlow.

Senator Walsh mentioned issues that may require examination as well as the four points raised by the delegation — the question of the RUC not revealing the information it had, the missing files and the serious question of possible collusion. This became an issue in all of our inquiries. Again, that could hardly be dealt with by focussing exclusively on why the gardaí did not conduct their investigation. Even if it could, a reciprocal response from Northern Ireland with files that might be available would be necessary.

The PSNI is conducting its own review of unsolved cases of this nature in Northern Ireland so it is seeking to determine the causes of various murders perpetrated in that jurisdiction. If we should exclusively focus on the quality of the investigation, as distinct from what happened, would that be a limitation on the terms of the public inquiry?

Mr. MacGuill

The question is in two parts. The first part asks if the report is simply into the murder of Seamus Ludlow. That is just a shorthand description of the terms of reference because they are recited on page 5 of Mr. Justice Barron's report. The first point is fact, circumstances, causes and perpetrators of the killing but the next point is the nature, extent and adequacy of Garda investigations, including co-operation with them from relevant authorities in Northern Ireland; the reason why no prosecutions took place, including whether and, if so by whom and to what extent, the possibility of the initiation of criminal proceedings was impeded; and finally, the material information and evidence presented at the inquest into Mr. Ludlow's death and the circumstances related to the non-attendance of relatives of Mr. Ludlow at the inquest. The committee is perfectly entitled to have regard to all of those terms of reference and to look at the investigation.

One can see the cold cases review in Northern Ireland might lead to prosecutions in stale cases or, if it does not, may assist in identifying possible perpetrators who might not be prosecuted for other reasons, whether they are dead and so on. That is because there is evidence to review. All the exhibits in this case are missing. There is no question in Seamus Ludlow's murder of them applying 2006 forensic techniques of DNA analysis because there is simply no raw material.

It is a difficult fact for the family to accept but there will never be a prosecution in this case and it would be to compound the injustice this family has suffered to defer a public inquiry into the investigation in the tiny hope that four people will walk into a police station tomorrow and confess to the crime. That is the only basis on which a prosecution would succeed against them. That would simply deflect the committee from its responsibility.

Deputy Costello

That is not the thrust of my question, we are not seeking to delay or deflect. I am wondering about the terms of reference. The first involves the fact, circumstances, causes and perpetrators of the killing. Who did it and why are central issues in what happened. It is not a question of their being amenable to justice, it may be a long shot, but this committee is still concerned with that. It was still concerned with that issue when it dealt with the bombings in Dublin and Monaghan in 1974, even though they occurred earlier. The victims were extremely concerned that the issue should be pursued if there is a way to do so. If we limit any recommendations we make to the flaws in the investigation in 1976 and 1979, are we fulfilling our function? Would the delegation be satisfied that is all the family wants in this case?

Mr. MacGuill

We have discussed it and a concern for the family would be overly broad terms of reference.

Deputy Costello

The terms of reference do not have to be for one course of action, they could relate to multiple courses of action.

Mr. MacGuill

The concern is that if the committee felt that it should investigate the killing it would allow certain persons to say some of that information is not within the jurisdiction and there is no point in having a public inquiry, or other persons to say that there cannot be a civil trial for murder of specific suspects and, therefore, the entire inquiry is derailed. The family would not wish for that.

If the committee feels it can make a recommendation for a public inquiry that includes these elements, the family would be happy with that. The family's primary concern is that there is no reason to disbelieve who killed Seamus Ludlow and the motivation for the killing, that is not an unresolved question. The unresolved questions related to the manner in which the murder was investigated and the political decisions that were taken at the time.

Deputy Costello

There is an unresolved question as to why the killing took place in the first instance.

Mr. MacGuill

The family accepts the conclusion that has been expressed that, unfortunately, Seamus Ludlow was a random victim of a loyalist murder squad. He was not targeted for any particular reason, he was killed in the absence of anyone better to kill.

Deputy Costello

That is the proximate cause but are there surrounding circumstances that should be investigated in terms of the broader area?

Mr. McGuill

In the scale of things, the family understands that many other families have suffered the loss of a loved one as a result of violent crime but for this family that loss was compounded by inexcusable conduct by agents of its own State. That is the real scandal.

Deputy Costello

Can Mr. MacGuill elaborate on the reference to the European Convention on Human Rights? It is mentioned on page 5.

Mr. MacGuill

I know the committee members are aware of it because I have heard reference being made at the committee hearings to the various cases in the North, the Shanahan and Jordan cases, where there must be an effective investigation into the circumstances surrounding the death. In our situation, the inquest does not necessarily address that and that is a right that remains unsatisfied. It is a widely acknowledged European convention right. I suspect in an appropriate case it would be accepted as being a constitutional right as well as one of our unenumerated personal rights. This family has not had that right vindicated for what will be 30 years this May.

Deputy Costello

To what extent do the terms of the legislation introduced in 2003 apply post factum?

Mr. MacGuill

A decision of Mr. Justice Kearns in the Fennell case held that it cannot apply retrospectively but irrespective of whether he is right — there are two views on that — we say that the convention must apply to any future inquiry. We would also say that principles of constitutional and natural justice apply in any event.

Chairman

I thank Mr. MacGuill, Ms Murphy, Mr. Coffey and Mr. White for attending today. The submission they made has been useful and helpful to us, particularly the question and answer session, which will be of great benefit to us in coming to decisions on recommendations and conclusions we might draw as a result of the hearings.

This is the seventh and final day of the hearings of the Sub-Committee on the Barron Report into the murder of Seamus Ludlow. I thank all of those who were involved in it. I thank all the members but I particularly want to thank the family of Seamus Ludlow, the Sharkey family and the Donegans, some of whom have been here day after day. I know they had travel arrangements to make each day and I thank them for the attention they have given to this process. I hope the focus that has been put on the murder of Seamus will help in some way to minimise the grief that I am sure they still suffer on the matter. I thank you all for your attention.

Mr. MacGuill

On behalf of the family, I express their gratitude to the committee for the manner in which the committee members have addressed this issue. It is clear they have taken it very seriously. The respect and civility that the family has received from the committee is clearly in marked contrast to what they have endured for the past three decades from other organs of the State.

Chairman

The sub-committee will produce its report for both Houses of the Oireachtas by 31 March as requested. The meeting stands adjourned.

The sub-committee went into private session at 1.15 p.m. and adjourned at 1.35 p.m. sine die.