JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS (Sub-Committee on the Barron Report) díospóireacht -
Tuesday, 3 Feb 2004

Public Hearings on the Barron Report.

Chairman

Good morning, ladies and gentlemen. You are all very welcome to the resumed hearings in the consideration by the Sub-Committee on the Barron report of the report of the independent commission of inquiry. This morning, the sub-committee is starting module three of its proposed programme of work.

In module 2 last week the sub-committee heard from a number of contributors who were given an opportunity to comment on the report of the independent commission of inquiry. I welcome Mr. Justice Henry Barron to these proceedings. I also welcome Mr. Eanna Hickey who is with Mr. Justice Barron who will have an opportunity, if he so wishes, to respond to some of the comments made on the report.

Before Mr. Justice Barron begins, I would like to remind him that while Members of the Oireachtas enjoy parliamentary privilege, invitees appearing before the Oireachtas do not. They may very well have qualified privilege and could take their own advice on the matter. We will take questions immediately. We have a number of parts with which to deal, the first of which Deputy McGrath will address.

Deputy P. McGrath

I, too, welcome back to the committee Mr. Justice Barron and thank him for coming. Your report has received widespread publication. We went through a method in the public arena of calling for submissions and so on. As you know, our job is to look at the report. We were asked by the Dáil to address the issues covered, whether you had covered all your terms of reference and so on. It is in that context I put some questions to you this morning, the first of which relates to actual witnesses.

We got correspondence from some people who had not been called to give evidence before your inquiry. They felt they had played a key role in providing evidence. For example, Mr. Fitzpatrick was an eye witness to the bombings. Some expressed disquiet and wondered why they had not been called to the inquiry. Perhaps you will comment on this.

More recently - last week - we had with us Mr. Seán Donlon, a former official in the Department of Foreign Affairs. At the time he played a very key role in his work in Northern Ireland and so on.

Chairman

Mr. Fitzpatrick was actually called.

Mr. P. McGrath

Sorry; I forget which ones, there were a number who were not mentioned.

Mr. Donlon felt he was doing a job in Northern Ireland at the time in preparing reports on the Strasbourg hearing and was a key player from the Irish Government's point of view in Northern Ireland. Interestingly, he came to the conclusion last week that there had been collusion and that there should be a further international inquiry. I wonder if you will comment on this.

In terms of hearing witnesses, there was some criticism about the method used in interviewing people and taking notes. Perhaps you will comment on this, please. In modern Ireland we now tend to record even the most mundane interview with a reporter because we want to make sure we are quoted properly. Perhaps you will outline the methodology used during your hearings in taking notes and getting an accurate recording of what was said.

Mr. Justice Barron

The Deputy asked a lot questions and I am not quite certain in what order you want them answered.

My function, as I regard it, in coming here today is to explain anything in the report which members of the sub-committee regard as necessary to be explained. I do not regard myself in any sense as an advocate to support the report against submissions made. The submissions have been made and I do not think it is my job to enter into any public arena in relation to those submissions. Having said that, I will try to answer the questions as I believe they have been put to me.

First, when we saw witnesses - incidentally, this is in the report - our attitude was that we wanted them to be as relaxed as possible. We felt we would get more information from them in that fashion. Accordingly, we did not have any recorder or shorthand note-taker, but one member of the inquiry team took notes of what was said and in that way we have records of meetings with people. As regards the people we saw, in the main we concentrated on members of the Garda Síochána and people from the Department of Justice. Many of the people we saw indicated to us that there were other people who might be in a position to help us and we sought information from them. We also sought information from people who had been witnesses at the time, which was not terribly fruitful. As a sort of catch-all, we advertised in the newspapers stating that if anyone wanted to see us, we would be very glad to see them. If anybody fell through the net, that is perhaps the reason they did not come or we did not know they would have any information.

As far as Mr. Donlon is concerned, I have seen roughly what he said and read what the committee provided. I do not know why he was not called. The Department of Foreign Affairs was not really on the list of people who might have the information. It is a police matter and the Department of Justice deals with that area. As Dr. FitzGerald informed the committee, there was some difference of opinion between the Departments of Justice and Foreign Affairs as to whether they could provide information. We have seen correspondence that was being sought and refused. That, strictly speaking, is no reason for not going to the Department of Foreign Affairs. That Department was very helpful in the sense that it provided to us the minutes of the meetings of September and November 1974. As a result of this, we inquired of it whether it had any other files that might be useful, but it did not.

As far as the substance of what Mr. Donlon said is concerned, I regard it as two different pieces of information. First, he had information regarding names from his opposite number in the Department of Justice. He said that within a few days of the bombings, the Department of Justice told him that it had the names of suspects. As far as the information that has been available to the inquiry is concerned, within a few days, undoubtedly, the senior members of the Garda went to Belfast, where they got photographs. Obviously, if they got photographs, they got names of those in the photographs. In the report, one will see that we regard those photographs as not just being photographs of anybody, but photographs of people whom the force thought were suspects. Therefore, it is perfectly reasonable for those names to have reached the Department of Justice and, equally, that they were passed to Mr. Donlon. However, he does not advance the matter any future.

The real problem is that since the files on this aspect of the matter in the Department of Justice and the Garda security file are missing, we have no idea what those names were and we have been unable to find them. Had we got this information, we would have got no more information than we already had because we knew that photographs had been obtained. Furthermore, we knew they had been lost so we had no way of finding out what the names were. I do not believe Mr. Donlon has given the names either, which is a problem.

Touching on that aspect of the matter, the report is based to a large extent on what we could stand over. It is in two separate parts, in the sense that in one part you have all the information that we collected, and we have indicated we collected it wherever we could and wherever we thought we would be able to get information and then, finally, there are the conclusions. The conclusions are quite separate. What we found out and what is our brief, so to speak, is in the main portion of the report. The conclusions are our views on what is in the main part of the report.

When it comes to suspects, we have two lines on which we were able possibly to find suspects. The first was that our military intelligence was informed that the bombings had been carried out by two gangs of members of the UVF, and we had been told that the arrest took place on 26 May 1974 of a number of people and that at least two of those people had been responsible for the Dublin and Monaghan bombings. That piece of information indicated two things, one that the arrests were the result of very good intelligence, obtained solely by the army, not by the police, and that the information after the arrests had been passed over to the police. That piece of information does not appear anywhere in Garda reports. What does appear in Garda reports is that some time in June what probably was the basis of that information was provided to an Inspector Kelly from Pearse Street with Detective Sergeant Burns - the two of them were there - and they were given two names and told that one of them had been interned. We have interpreted that in the report as saying that that was the substance of the information passed to our military intelligence, but the only reference in Garda reports is to receiving information that one of the two names given to the gardaí had been interned and a follow up in relation to both names which was made some time in June, I think, of 1974 - it may have actually been slightly later - sent to the RUC for information about these people. An answer came back on 2 December 1974 which was not particularly helpful. That is one strand on which we based a lot of conclusions, and I do not think that the evidence of Mr. Donovan would in any way have affected that.

The other strand of information related to the farm at Glenanne near Markethill in County Armagh and on that information we have set out why we believe it was involved and so on, but again I do not think that the information Mr. Donovan received in any way impinged upon that.

If I might move to the issue of collusion, I think there has been some, shall we say, misconception, a wrong idea, about what we have done in relation to collusion. I would say that the report generally indicates that there was a high level of collusion operating in Northern Ireland at the time, but our conclusions are not based on whether there was collusion operating in Northern Ireland but whether or not the collusion operated more generally and could also be applied to the bombings in Dublin and Monaghan. When we talk about collusion we must be sure that we know that our conclusions in the report are based on whether or not there was collusion in relation to the bombings, not whether or not there was collusion generally in Northern Ireland.

Regarding the other witnesses who came to us - I do not know how many of them you want me to refer to - I will start with Séamus Fitzpatrick because he came to see us and I have looked at something he said. He said we were not very kind to him and that he came for only five minutes. I have no recollection as to whether that was so. If he says so, obviously that must have been so. The problem with Mr. Fitzpatrick's evidence was that the gardaí did not accept it. I will just detail the scene in Parnell Street. There was a public house on the corner of Marlborough Street, the name of which escapes me at the moment, while next door to that was a supermarket and then there was a butcher shop. There were three parking bays.

Mr. Fitzpatrick said that the car he saw was in the first parking bay, the one nearest to Marlborough Street. The bomb car which exploded was partially in the second bay and partially in the third bay, away from Marlborough Street. Prima facie, the car he saw, unless it was moved, was not the one that blew up. The other point about it was that he saw that car about an hour before the explosion. He said that the driver was agitated. People can be agitated for many reasons. However, a family - a husband and wife - said in evidence in their statements to the gardaí that they had let in the car to the bay, where it exploded, about 15 minutes before the actual explosion. It seemed to the inquiry that was acceptable and there were no real grounds for suggesting that Mr. Fitzpatrick had seen the bomb car. That is the basis upon which we did not refer to it.

There are many trails that we undertook in the course of the inquiry which led to nothing. We have not put details of those in because, as was said in the report, it would tend to blur the outlines of what we are satisfied we should rely on. In so far as Mr. Michael Culligan and Mr. Harry Havelin are concerned, we did not see either of those gentlemen. There is no way we could have known unless they told us that they had seen these two incidents. To say that two gardaí were running towards North Earl Street five to ten minutes before the bombs went off could be explained easily; they could be running for any reason. Similarly, in the case of the two gardaí who asked Mr. Havelin if he had any information. There is no way of knowing what they were talking about. They could have been talking about the bomb car that was known in Dublin to have been stolen before noon, but there is nothing to suggest that this is what they were about. With the general information being broadcast, it could well have been that they were looking for that car. However, numbers of cars were coming in all the time. I really do not think that if we got that information it would have added anything to what we said.

Mr. Neil Faris said that we referred to the perception that security forces deliberately allowed republican paramilitaries a safe haven. That is a specific perception. It is not the same as a perception that republican paramilitaries were granted a safe haven in the State. These are two different things. If he takes the view that republican paramilitaries were granted a safe haven in the State and he says the fact one could not get extradition to Northern Ireland establishes this, that is not what the report was dealing with. The report was dealing with allegations that the security forces, that is the Garda Síochána, were going soft on republican paramilitaries. What we were saying was the Garda Síochána did not go soft on republican paramilitaries and the allegation that they were doing so was unjustified. It is a different proposition to the one with which I think Mr. Faris is probably dealing. Are there any other ones, Deputy McGrath, that you specifically want me to answer?

Deputy P. McGrath

I would like to hand over to my colleagues at this stage but would like to come back in later.

Deputy Costello

I thank Mr. Justice Barron for coming back to see us again. We appreciate it very much.

I have a very brief question which is related to Deputy McGrath's. In your report you say that when you took over from Judge Hamilton, you reinterviewed the witnesses who had been interviewed by him. Obviously, you took a painstaking and careful approach to the matter. Could you let us know what methodology Judge Hamilton used? In the first instance, how widely did he advertise the terms of reference of his commission in seeking eye witnesses and information? Second, did you, when you took over, place advertisements in the newspapers or otherwise seeking further information on the matter?

Mr. Justice Barron

The answer to the second question is, "Yes, we did." I think the answer to the first question must be "No" because if Judge Hamilton had already put in the advertisements, I doubt if we would have put in a second lot.

Deputy Costello

How widely was that advertised in this jurisdiction and others?

Mr. Justice Barron

I am not 100% sure of that but I think it was in the three main dailys in this country and certainly in Northern Ireland and, apparently, in local papers. It was pretty widely done. Regrettably, there was very little response to it.

Deputy Costello

And in other jurisdictions.

Mr. Justice Barron

In Northern Ireland. I do not think we did in England.

Deputy Costello

Thank you very much.

Senator J. Walsh

I welcome back Judge Barron. While I can see how the inquiry would have had difficulty in pursuing and obtaining corroborative evidence to back up statements made by some of the eyewitnesses, can you outline what attempts were made to identify the two gardaí mentioned in Mr. Harry Havelin's letter to the chairman?

Mr. Justice Barron

First of all, we could not have made any attempts because we did not know about it.

Senator J. Walsh

You did not have that evidence.

Mr. Justice Barron

No. Suppose we had the evidence, I do not think we could have found it. I put it to you this way. There was a witness - I have forgotten his name - who was in Alborough House in Amiens Street on the day in question. He was one of the two people who gave evidence to the "20:20" programme about two years ago. His evidence, for example, was that two gardaí came down to him from Howth Garda station. We were never able to find out who they were. Even if we had known of these gardaí, the only way we could have found out was from records of a report having gone in and the inquiry having been given that report. We did not have it, no.

Senator J. Walsh

On that particular point, some of the eyewitness accounts could anecdotally give rise to a suspicion that, perhaps, there was a prior warning. What initiatives were you able to take within the inquiry through Garda sources or sources outside the Garda to try to test the substance of this? I am familiar with your conclusion which is negative on the issue.

Mr. Justice Barron

We relied, in so far as the Garda was concerned, upon a very considerable amount of documentation. We have six books of what are known as "job sheets", that is, inquiries being made by gardaí to follow up leads. We found nothing in any of those that would have been of any assistance. We had other documents as well. We had all the statements made. The main sources for following up this did not produce any answers.

Senator J. Walsh

Did Mr. Justice Barron examine contemporaneous documentation?

Mr. Justice Barron

Yes.

Senator J. Walsh

Was there a gap in that part of the filing?

Mr. Justice Barron

No. What is missing as far as the Garda documentation is concerned is known as the security file relating to the bombing in Dublin. It is a limited file. The Garda has furnished to us a large quantity of documentation one way or another, which it has still from the investigation at the time but, regrettably, one of the most important things is the photographs and they are not available.

Chairman

Will Senator Walsh move on to questions regarding Mr. Wylde?

Senator J. Walsh

Mr. Justice Barron has probably read the statements made by Mr. Wylde to the sub-committee last week and has interviewed him on this matter. Mr. Wylde makes a strong point, which, as far as he is concerned, is unambiguous, that commercial explosives were available and he corroborates a statement in page 246 of the Barron report in connection with Commandant Boyle. He laid a great deal of emphasis on that issue, which may be slightly at variance with the conclusions Mr. Justice Barron reached. How did Mr. Justice Barron arrive at those?

Mr. Justice Barron

I thought the dispute, if I can call it that, was about Mr. Wylde's opinion that the bombs were made with recrystallised ammonium nitrate. The section in the report deals with a number of different aspects. Mr. Wylde gave us a long report on 5 February 2001. It is a 60 page report containing a number of photographs and tabulations. His general thesis is his main thesis today. The only distinction between that report and a subsequent supplementary report in November 2001 was that in the first report he took the view that the bombs were ANFO, that is, ammonium nitrate mixed with fuel oil, but the ammonium nitrate had been obtained from old sources. In the report, he makes it quite clear in his view that the lawyers did not have access to this ingredient. He saw further documentation, further photographs and he changed his mind, which is up to him, but from the point of view of the inquiry, we had both his views. We had an original view and a changed view. The changed view depended to a large extent on photographs.

We have photographs here and I find it difficult to follow his thesis. That is part of the reason we said we could not be sure that the photographs established the proposition but that is not the only point to be made. The photograph in the first report says possible ANFO and I understand he suggested we had not seen the original photographs. As far as I know, the original photographs were supplied to us and we supplied them to the Justice for the Forgotten group, which passed them on. We have two photographs here and they are available if anybody wants to see them. If you look at figure 12 in the first report he gave, where he has got arrows, you will see that these are larger photographs. They give much more detail. To a layman, they do not suggest that you could get any definite decision from them. This is one of the reasons we have given but it is not the only reason. If you look at the section on it, we deal with the question: were commercial explosives used in the bombings? Some of the army officers said they were. We then deal with the question: were the bombs made with ANFO? We deal with all the reasons why they may or may not have been built with ANFO. We accept the proposition - it is in the report - that if it was ANFO, it might have been washed away.

I should also say - this, perhaps, is unfortunate - that we actually sent all of his reports to the Defence Forces and we got back a report which said the theory was reasonable but speculative. Taking all those matters into account, we took the view that we could not be sure that he was right. He may well be right. It is a matter for experts.

Senator J. Walsh

Did you consult any experts, particularly photographic experts? In his evidence to the committee he laid emphasis on the fact that he had had considerable training to get to the level of expertise in interpreting these photographs. He also made the point that the photographs were very good and very clear.

Mr. Justice Barron

I have them here. They are extremely clear.

Senator J. Walsh

That would have facilitated him in making definitive conclusions in regard to this. Apart from sending them to the army, did you consult any other photographic expert in that field?

Mr. Justice Barron

No, we did not.

Senator J. Walsh

He made the point that a lay person would have a difficulty in seeing, within the photographs, what he was able to detect from his experience. Army sources are referred to. Were they examined by people with photographic expertise within the army?

Mr. Justice Barron

I am afraid I cannot answer that. All I have is a report from the army dealing with all the reports we had from him at the time.

Mr. Hickey is pointing out to me that the expertise of those who would have seen them would have been forensic. He also points out that Mr. Wylde, in his report, uses expressions like "possible", "probably" and so on.

All I can say is that we had various things to consider and, on the totality of what we had to consider, we decided that we could not accept his theory. I should say his theory, as I understand it, is a purely military theory. We had to consider what was going on in Northern Ireland as a whole and whether the loyalists, through collusion or otherwise, might have been able to obtain ammonium nitrate from other sources. We have expressed the view in the report that they were looking for it elsewhere, that they were going to Scotland and that there were importations of arms and explosives through Southampton and so on. If you read the report, you can see why we took the view we did. I am not an expert in this field. The only experts in the field we went to were in the Army and they said it was speculative. It seems to an untrained observer of the photographs, having regard to the arrows, that what is pointed out is possible ANFO. However, there are lots of other things that are not said to be possible ANFO but look the same. I do not want to get into any discussion about expertise. It is not my field, nor do I believe it is my function.

Senator J. Walsh

Mr. Justice Barron has accepted that Mr. Wylde was an expert in the area in which he purported to be proficient. He was trained as an ammunition technical officer, he was officer in command of the Northern Ireland section in Belfast and was in charge of all explosives in that area. It would have come across as if he had enormous experience in that area and, therefore, was qualified. As part of the inquiry, what substance did Mr. Justice Barron give to Mr. Wylde's claims about his experience and were any background checks carried out to establish their validity? I am pursuing this matter because this particular evidence, namely, that relating to the sourcing of explosives and the capacity of the UVF to have done so, is critical to conclusions drawn subsequently. I am trying to discover the extent to which——

Mr. Justice Barron

I appreciate the Senator is taking that view. However, I am not quite sure I understand how this particular decision affects any other conclusions.

Senator J. Walsh

Mr. Wylde's evidence to us indicated that, based on——

Chairman

Mr. Wylde made that point in his submission.

Senator J. Walsh

I apologise. In his submission, Mr. Wylde indicated there was considerable skill involved in making the bombs and designing them to explode simultaneously. From his knowledge of the operations of the UVF within Northern Ireland, he categorically stated that the organisation did not have those skills and that the explosives might not have been readily available to it. A great deal hangs on whether one accepts those points.

Mr. Justice Barron

He makes a lot of those points. I am not here to argue against what he has said. I do not think that is my function. I am not trying to avoid the Senator's questions but I do not think I should answer them as an advocate. That is the point.

Senator J. Walsh

It is a technical area and it is difficult for us also because we are not experts in the field. Would Mr. Justice Barron accept, however, that it is a field in respect of which the relevant experts should draw conclusions?

Mr. Justice Barron

Yes, I have no doubt that experts might say one thing or another. That is for them to do. I suppose we got an overall impression. He was in Northern Ireland. He did not reach Northern Ireland until a month after the bombings and, as I say, the entirety of what he said related to the military aspect of the matter. I have no way of suggesting, nor do I wish to suggest, that his expertise is not there or that it is wrongly placed.

Senator J. Walsh

Does Mr. Justice Barron acknowledge that Mr. Wylde's expertise lay in an area that was relevant to allow him to comment on the suspects in the Dublin atrocity and also that his experience in Northern Ireland, on which he laid emphasis, was relevant?

Mr. Justice Barron

He was there for four months in 1974 and, as I understand it, he was an expert in explosives. Like any other military man there, he knew what was going on.

Senator J. Walsh

There were also others who, in their submissions to us, were strongly of the view that the bombings in Dublin had all the hallmarks of an operation carried out by trained military experts, particularly in terms of the fact that they were carried out simultaneously and, depending on the view one takes, the availability of the detonators used. How did Mr. Justice Barron go about probing that aspect of the inquiry? Did he consult expert military people to obtain their observations and views in respect of that allegation?

Mr. Justice Barron

We received reports from all these people, including the various military officers who had investigated the sites at the time. We had evidence from the explosive ordnance officers who said they searched and searched but found nothing. It is in the report and it is very difficult for me, at this stage, to say any more than what we did in the report.

Senator J. Walsh

I do not recall seeing anything in the report that would have tested whether the carrying out of this operation conformed with the view of these people that it was an expert military operation.

Mr. Justice Barron

When we are dealing with Colonel Morgan's information——

Senator J. Walsh

And Mr. Wylde's.

Mr. Justice Barron

——we deal with the proposition that it did not seem to us that it was something that could not have been carried out by that sort of person. Mr. Wylde himself says it could have been done by a quarry worker, that the bombs could have been made by a quarry worker and that making the bombs was a simple matter. He goes on to say, however, that the planning was something quite different. Then we have the evidence from a number of people who suggested William Hanna was perfectly capable of planning the operation. We have relied on that.

What I am trying to say is that these matters are in the report. It may be that we are wrong on these matters but we had all the evidence and did our best to analyse it and to accept what we believed was the true position. I appreciate, for example, that anybody doing something for the first time is going to be pretty lucky to be successful but it does not mean they cannot be so.

Senator J. Walsh

I have a final question on that. Some submissions have made the point, which Mr. Justice Barron has probably covered in his report, that the three bombs went off more or less simultaneously, with a great degree of "military" precision perhaps. What weight does Mr. Justice Barron give to that? The point being made is that bombings on that scale did not occur subsequently so it was a unique situation in that way; aspects of it were unique.

Mr. Justice Barron

We have gone into that in the report and said that perhaps it was only because particular urgency existed at that time. They were trying to get rid of Sunningdale and that could have been one reason. However, Mr. Wylde, as I understand it, said in his report that it would not be difficult to get them to synchronise but that it would be necessary to have rehearsals to see if it could be done properly. If that is so, it is possible. Again, to say these things, I am being dragged into being an advocate and I do not want to do that. Does the Senator follow me?

Senator J. Walsh

For the record, he told the committee there was considerable skill involved in making the bombs explode simultaneously and that the UVF did not have those skills.

Mr. Justice Barron

He said a quarry worker could do it. The understanding we have, from the evidence given by former Sergeant John Weir, was that the man who was supplying all the explosives and who was involved worked as a shot firer in a quarry. These are pieces of evidence which we obviously took into account. I can only reiterate that we may not have gone into everything we should have gone into, although I feel that from all the evidence we had, which as I say is in the report, we went there. However, I am not prepared to contest any expertise on a subject on which I know nothing.

Deputy Costello

On page 70 of the report, Mr. Justice Barron outlines the type of improvised explosives used by the IRA, one of which is a mixture of ammonium nitrate and fuel oil, ANFO.

Mr. Justice Barron

That is not us.

Deputy Costello

The top of page 70.

Mr. Justice Barron

That is Mr. Hall. He is the expert in Belfast.

Deputy Costello

Yes. Then in the next paragraph the report includes again a statement from Mr. Hall that a mixture of ammonium nitrate and fuel oil was one of the four main loyalist improvised explosives. The report accepts that whereas the evidence given to us by Nigel Wylde was that while this was true in respect of the Provisional IRA - it had achieved the technology by that time of crystallising the ammonium nitrate - the loyalist paramilitaries did not achieve the same technology until about two years later.

Mr. Justice Barron

Sorry, Deputy, I cannot see any reference to recrystallised ammonium nitrate here.

Deputy Costello

It is not in this report. It was in the written submission made to us by Nigel Wylde.

Mr. Justice Barron

Yes. If one reads the entirety of his first report, it leads to the supposition that the ingredients for ANFO had to be obtained elsewhere. When he saw further photographs, he crystallised his own views and decided that in terms of where the ingredients had been obtained, it must have been from captured IRA stocks. I have not said it already, but it is fair to say that not only did we go to the army with his report, but we took the suggestion that it was captured IRA stocks seriously and we went to the Northern Ireland Office to find out the way in which stocks were treated - how they were stored, got rid of and so on - and we set that out in the report. We took his suggestion, or his opinion, seriously. There is no doubt about that.

Deputy Costello

You describe it as one of the main loyalist improvised explosives, so it——

Mr. Justice Barron

Sorry, Mr. Hall.

Deputy Costello

I will restate that. It is presented here without question that it is Mr. Hall's assertion.

Mr. Justice Barron

This is his report on the samples of the material which were sent to him. This is his report on it.

Deputy Costello

Mr. Wylde said to us that such ANFO was not found for at least two years subsequently in other explosives in Northern Ireland and had not been found previously. In other words, it appears this was a once-off, if it was ANFO, and if it had been stolen from the Provisional IRA it was all used in the Republic.

Mr. Justice Barron

With respect, Deputy, there is a distinction between ANFO made from prills of fertiliser and ANFO made from recrystallised ammonium nitrate. I should mention that Dr. Donovan found two blackened prills of ammonium nitrate which would suggest that it came from fertiliser, not recrystallised ammonium nitrate. All I am saying, in effect, is that there is more than one way of looking at this. We have looked at it in a number of different ways. The report refers to a larger number of different views which could be had on it and we came down to the view that we could not accept that it was recrystallised ammonium nitrate.

Deputy P. Power

While we are continuing this theme on ANFO, my question relates to Mr. Justice Barron's last comment where he said he put Mr. Wylde's report to the experts in the army and he received a report back. Did that report deal with one issue, namely, whether it was possible to form definitive conclusions on the basis of the photographs? In other words, did the army's report state it was possible to form definitive conclusions on it?

Mr. Justice Barron

It was speculative.

Deputy P. Power

When speaking earlier Mr. Justice Barron said his theories or his submission to him previously was speculative? Did they address the issue of whether it was possible to draw definitive conclusions on the basis of the original photographs? Take a minute if you wish.

Mr. Justice Barron

I understand what you are saying, Deputy. What I have said comes from their report. It is only the first sentence in the report. Mr. Wylde's argument is reasonable, even though speculative. I have said that already. It does not deal with the photographs. It was pointed out to me that if it is speculative, it cannot be definitive. He does not talk about photographs. He does not explain why it is speculative so one has only to infer that there is not enough definite evidence in his opinion.

Deputy P. Power

Thank you.

Senator J. Walsh

I want to put a final question to Mr. Justice Barron along the same lines. I refer to the Irish National Congress submission to us, where it canvasses the notion that one of the probable sources was the Provisional IRA's stocks, which is discounted in the report. As part of sustaining that argument, it states that it believes the alternative, which is in the report's findings, to be unlikely as no production facility or significant find of loyalist-produced ANFO has ever been discovered.

Mr. Justice Barron

Where is this?

Senator J. Walsh

It is on page 5 of the INC's submission of 6 January 2004.

Mr. Justice Barron

I see.

Senator J. Walsh

It states the report discounts the possibility that the most likely source of loyalist ANFO was from Provisional IRA stocks seized by the security forces, suggesting sources in Scotland and elsewhere as an alternative. It goes on, "As we have already stated, we believe this alternative to be unlikely as no production facility or significant find of loyalist-produced ANFO has ever been discovered."

Mr. Justice Barron

That is its opinion.

Senator J. Walsh

In evidence which Mr. Justice Barron's inquiry would have received, was there information which would have shown there were production facilities and, if so, where and that significant finds of ANFO were, in fact, discovered with the UVF? It is the quantity we are talking about.

Mr. Justice Barron

The report states that it could have come from outside Northern Ireland. It could have come through the Southampton Docks, but I think it is probably fair to say that the strongest point is that a UDR officer is said to have provided the explosives. This question is not on the same plane, so to speak, as that piece of information.

Senator J. Walsh

Where would the UDR officer have got the explosives?

Mr. Justice Barron

That is something nobody seems to know.

Senator J. Walsh

The INC is saying here that Mr. Justice Barron's conclusions are drawn - if he goes to the next line - despite the fact that at least 1,000 lbs of Provisional IRA ANFO was seized every week. They are putting forward in a logical way a strong possible source of the ANFO. For you to have drawn your conclusions, is the point that they make not fair in that you would have had to establish evidence of some production facilities and that there had been finds of very significant quantities of ANFO linked to the UVF at certain stages?

Mr. Justice Barron

Again, in the report, we have statements given to military intelligence that the UVF seemed to have no problem about explosives. It may well be that the explosives in that comment are captured IRA explosives which had been handed out by the army whose duty it was to destroy them. We cannot say.

Senator J. Walsh

You are not ruling that out.

Mr. Justice Barron

We cannot rule it out but what we said was, essentially - this was obviously a lay view - that the photographs did not seem to justify the allegation, having regard to the fact that there was a very long 60 page report which said the opposite, albeit that the view was changed in November in a much shorter report.

Deputy Hoctor

I welcome back Mr. Justice Barron. Mr. Justice Barron, my questions concern the Government of the day and the conclusions you came to in the report. Mr. Paddy Cooney and Dr. Garret Fitzgerald both responded to our invitation and attended the committee. The Minister for Justice of the day, Mr. Cooney, was fully satisfied that the Department had been informed at all times of the workings of the Garda and that all the relevant facts had been delivered to the Department on a daily basis. He believed, however, that it would have been corrupt and led to a totalitarian state if the Government of the day had intervened with the investigations carried out by the Garda.

Chairman

He did not say "corrupt".

Deputy Hoctor

I take back that word but he certainly used the phrase "totalitarian state", which explains itself. He also said no political assistance had been sought by the Garda in its investigations. He was quite clear in regard to his role.

To refer to your report, Mr. Justice Barron, you say the Government of the day failed to show the concern expected of it. Can you substantiate what you mean by "expected of it" in view of what was said by Mr. Cooney?

Mr. Justice Barron

It goes back to the information they obtained in September and November of 1974. That, so far as the inquiry was concerned, was totally new information. The only information about internment they had received was that one person who was involved in planning had been interned. A second person involved in planning, with no suggestion that that person had been involved, had been interned.

As I said before, the report suggests, fairly strongly, that that piece of information was the information which came from British military intelligence to our own military intelligence but it is quite different from the information which was received in the meetings in September and November 1974. Here, you were being told that a lot of people had been locked up who were responsible for the bombings in Dublin and Monaghan. That piece of information never percolated through either to the Garda or from them. I am sorry, it certainly percolated to the Garda from our military intelligence but it certainly did not percolate any further, unless it appeared in the files which are no longer extant. Dr. FitzGerald has said the British Prime Minister and his Secretary of State were merely expounding the theory, "Isn't it a good thing that we had internment?" I accept that they may well have been saying that but I suggest that when we sought to find out if anybody remembered anything of this happening, we wrote to the Taoiseach of the day, Dr. FitzGerald and Mr. Cooney and none of them had any recollection. Not surprisingly, Mr. Cooney would have had no recollection because he was neither at the meetings nor on the circulation list. Had the information percolated back through the Garda, one would have thought that he would have had the information. That is one aspect of it. It seemed to the inquiry that this matter should have been taken up in some form or other.

Unfortunately, we were never able to get a full view of this aspect. Was there a policy that gardaí could not go North to question suspects, because if they did, the Garda would have to allow the RUC to come down to this State to question other suspects? Was this a policy or a perception of the Garda and so on? All that can be said is that the inquiry takes the view that the politicians of the day ought to have realised this situation for whatever it was. Mr. Cooney is quoted as indicating that there would have been political considerations had he been asked. He said he was never asked which, of course, I accept but this is a problem. The theory was that one could not reciprocate. There is a reference in the report by one member of the Garda Síochána saying to another, " Why didn't you? I suppose you asked the Government, and they said no."

I do not know if that is true but it is a possibility. In a sense, it has been supported by the submission made to the sub-committee by former Superintendent Giblin who said that did exist. Another gentleman from Galway, a sergeant in the Garda Síochána, Brendan Cafferty, more or less says the same thing. Obviously, we did not have the information from either Giblin or Cafferty but we had information from other gardaí on the same situation. We felt that more could have been done, that is all.

Deputy Hoctor

I refer to conclusion No. 5 on page 275 where you refer to the role of the Attorney General. It was referred to in the submissions, particularly by the Government representatives of the day. You refer in the report to the fact that there was no evidence that the investigating teams sought advice from the Attorney General.

Mr. Justice Barron

They did not.

Deputy Hoctor

You said that in the 1970s criminal prosecutions had been brought to the Attorney General. Can we conclude that the position was different from what it is now?

Mr. Justice Barron

It was exactly the same thing. A 1974 Act set up the Office of the Director of Public Prosecutions. Up to then all prosecutions were in the name of the Attorney General. Obviously, the Attorney General was adviser to the Government, so there was a sort of connection between the two. The Office of the Director of Public Prosecutions was set up so that the office would be independent in its function. The function was identical so if the Garda had any evidence it sent a file to the Attorney General, as it would have been in those days, for a decision. All the report states is that there was evidence that somebody had been identified. It was not terribly good evidence but it was evidence nevertheless. Even if there were no evidence, all we are suggesting is that the gardaí could have gone to the Attorney General, stated that they seemed to be getting nowhere and inquired whether there was anything else they could do.

Deputy Hoctor

I am glad Mr. Justice Barron clarified that because I would have thought that it would have been seen to be inappropriate that the Attorney General would have been the adviser only to the Government and not the Garda Síochána.

Mr. Justice Barron

He had two roles.

Deputy Hoctor

He had two roles. That is very interesting.

Mr. Justice Barron

Mr. Gleeson was the prosecutor. All prosecutions were in his name and he decided whether they should go ahead. The point is that he was the person to go to.

Deputy Hoctor

One of the stronger statements in Mr. Justice Barron's report relates to the termination of the Garda inquiry. On page 127 it is stated:

A witness told the Inquiry that he was told by a Garda Officer involved in the Dublin investigation that there was a decision to terminate the investigation prematurely; that he objected to it and that he had placed papers in a safe to be opened only upon his death which would set out full details of the decision.

Mr. Paddy Cooney refuted that absolutely. Can Mr. Justice Barron substantiate that statement and tell us if the garda in question is alive?

Mr. Justice Barron

We were not substantiating that at all but doing the very opposite. I believe the allegation was in the newspapers. It was already before the inquiry of Mr. Justice Hamilton and there is absolutely no truth in it. We felt we should make this clear. I have read the relevant portions and am perfectly prepared to say the report may not be as clear as it should have been. However, we make the following quite clear in the report: "The suggestion that such a direction came from the Government is absolutely denied. The Minister for Justice at the time, Patrick Cooney has further pointed out that any such direction would have been grossly improper." We investigated that allegation and tried to find out where the garda who was supposed to have given the information lived. The name was the same as the Detective Chief Superintendent, Dan Murphy, who was effectively in control of the Dublin investigation even though Chief Superintendents Joy and Anthony McMahon were there as well. Mr. Murphy was the one from the investigation department. The name given to us was "Murphy" and it was said he had been met in a house somewhere in Drumcondra, but we could never find it.

Chairman

He was dead.

Mr. Justice Barron

Dan Murphy was dead at that time. However, we are not saying somebody did not make the statement; all we are saying is that we have been unable to find any truth in it. We pointed out that it was absolutely denied by the Government. The report states on page 127 that "The Taoiseach denies any direction to An Garda Síochána which he said could only have come from him."

Perhaps the matter is not as clear as it looks. I believe Mr. Cooney took the view that if one does not say there is absolutely no truth in the allegation, one is implying there could be some truth. I want to make it clear that as far as we are concerned, there was no truth in it.

Deputy P. McGrath

A couple of points arise. You talked about the establishment of the DPP. Did I hear you say - maybe I misunderstood you - that the DPP had a role in investigating crime?

Mr. Justice Barron

No.

Deputy P. McGrath

He has no role in investigating crime.

Mr. Justice Barron

None at all.

Deputy P. McGrath

In that case, since the Attorney General of the day, prior to the Act of 1974 that you mentioned, would have had no role in investigating crime, why would it have been important for the Garda to talk to him to get a steer on what they should have been doing?

Mr. Justice Barron

Because it is standard practice for the Director of Public Prosecutions today and, I am quite sure, the Attorney General then, when files come in, to give directions as to what more might be done.

Deputy P. McGrath

Is he involved in the investigation?

Mr. Justice Barron

I do not think he is involved in the investigation. He gives advice.

Deputy P. McGrath

Advice on how the crime should be investigated?

Mr. Justice Barron

Matters that they might do, yes. I have asked about that and I have been told that.

Deputy P. McGrath

The evidence from the Attorney General of the day, Mr. Costello, is very different. You place a lot of store in the report on gardaí going North and participating or being observers at the questioning of possible suspects and so on. You have talked to us today about whether it was Government policy that gardaí should not go North and so on. You outlined further what Mr. Cooney——

Mr. Justice Barron

We were told that it was not Government policy. Dr. FitzGerald made it quite clear it was not Government policy.

Deputy P. McGrath

There was no Government policy on it.

Mr. Justice Barron

Mr. Cooney, to a large extent, took the same approach.

Deputy P. McGrath

That is right.

Mr. Justice Barron

There was no actual policy but he made the point that if a question arose, there would be political considerations.

Deputy P. McGrath

That is hypothetical, is it not?

Mr. Justice Barron

It is not really.

Deputy P. McGrath

If it did not arise and was not discussed, anything you say about it is obviously hypothetical.

Mr. Justice Barron

In that sense, it is. The particular instance is hypothetical but the fact that there would have been political considerations to be considered is not hypothetical.

Deputy P. McGrath

Do you think in hindsight that something that never arose at the time, no matter what considerations arise, is hypothetical? Let us move on. Did the question not also arise later around 1979 when there were similar opportunities for members of the Garda to participate or to observe questioning and they did not take part?

Mr. Justice Barron

I know about that but I did not want to bring that into this particular forum because it relates to something else altogether.

Deputy P. McGrath

The same policy pertained?

Mr. Justice Barron

It seemed to, yes.

Deputy P. McGrath

In that regard, when you draw your conclusion No. 7, that the Government of the day failed to show the concern expected of it, one aspect was about going North. Another was about the role of the Attorney General. You say you drew a very serious conclusion that the Government did not have concern. A couple of points arise from this. You said the report looked at the issues in hindsight and with the knowledge of 2003. What did you mean when you added this rider to your conclusion?

Mr. Justice Barron

Let us say for a moment that not going to the Attorney General is nothing to do with the Government. It is the Garda who did not go to the Attorney General.

Deputy P. McGrath

It is the Garda that you are blaming there.

Mr. Justice Barron

On that, yes. What we are saying is that today, in 2003, when a catastrophe of this nature arises, public reaction is quite different. All the things that are being done today were not being done in the past. That is all we are saying. In other words, there was a much harsher regime then than there is now that we felt was some justification for the Government not doing the sort of things that would be expected of it today but we still felt that it did not do as much.

Deputy P. McGrath

What would you expect of it today? What are the things to which you point?

Mr. Justice Barron

We discussed this with Mr. Cooney and there have been droves of psychologists and so on seeing them. People would receive counselling and various other things of that nature. That is what I am referring to. Basically, in so far as the Government of the day is concerned, it relates to a large extent to having the information and not showing any interest in it.

Deputy P. McGrath

I do not think that is borne out by the facts. Perhaps we will differ on that. The gardaí, as the people working on the ground, had the information. That is in the report. Mr. Justice Barron said that because the information was given at a later date, at intergovernmental meetings, and no trace was found of that being passed down, he draws many conclusions from that. Was it not more practical that the detectives and the superintendents on the ground who were dealing with crime on a daily basis should have the information? Is not the separation of powers between the Government and the Garda Síochána also important?

Mr. Justice Barron

It is. All I have said is that the information which came down to the gardaí from our military intelligence was quite different from that supplied at the meetings. That is all.

Deputy P. McGrath

I beg to differ with Mr. Justice Barron. It was the same information. The names of the people and the fact that they had been picked up and interned was the same in both cases. We will park that for the moment.

Mr. Justice Barron's conclusions about the Government of the day not showing concern and so on hinged to a great extent around the three or four people he met and talked to from that Administration. Did he feel that there might be some justification in natural justice to put those points to them prior to publication of the report? One of them asked to see the report prior to publication. In natural justice, since they were going to be impugned in that way with the publication of such a statement, did he not feel they had some right to be consulted or at least have the case put to them?

Mr. Justice Barron

One of the problems we faced was that in doing an independent inquiry we had to stand back from the people we were dealing with. That was a consideration. Looked at from the point of view I believe the Deputy is looking at it, maybe it was unfair.

Deputy P. McGrath

May we conclude that if Mr. Justice Barron was doing the same exercise next week he might approach it somewhat differently? He has said that in a number of areas, "We may not have gone into everything we should have gone into" and "The report may not be as clear as it should be". Now Mr. Justice Barron says some people might feel he would have been justified in talking to Dr. FitzGerald and Mr. Cooney and showing them the report before he published it.

Mr. Justice Barron

The reason for my remarks is that I do not like to be dogmatic. I do not like to say, "Of course we did everything we could have done". I am being reasonable.

Deputy P. Power

I shall deal with part 5. That relates to the co-operation——

Chairman

We are still finishing off part 3. We will move on to part 4 and then part 5.

Deputy Costello

I wish to address a brief point to Mr. Justice Barron as regards the Attorney General. He expressed some concern there was no consultation with the Attorney General on the matter by the Garda Síochána. The role of the Attorney General is different now. The office then had the function of the Director of Public Prosecutions. Considering the enormity of the crime under investigation, once this had been completed would it not be normal practice to send a report to the Director of Public Prosecutions, who in this case combined that role with the office of Attorney General? Did he seek to elicit whether any report on the Dublin and Monaghan bombings had reached the Office of the Attorney General?

Mr. Justice Barron

It is easier to answer if we translate the Attorney General in this context to the Director of Public Prosecutions. There were Garda reports which went to the Department, but what we are saying in this report is that we feel the views of the Director of Public Prosecutions should have been tapped to see whether any other avenue might have been made available or suggested by him. That is what we said. In a sense, I am agreeing with what the Deputy just said.

Deputy F. McGrath

I want to refer to something Mr. Justice Barron said earlier. He said there was a much harsher regime in 1974. What did he mean by that?

Mr. Justice Barron

I put it to the Deputy this way. The first time I remember anybody getting highly concerned about people involved in catastrophes was following the Lockerbie disaster which was some ten years after this. That is all I am saying.

Senator J. Walsh

There are two parts to my question. During the course of his strong defence of the Government's position, Mr. Cooney referred to the terms of reference given to the inquiry and the difficulties involved, including the unavailability to the inquiry of documentation taken on oath, the turnover of staff, the lack of technical back-up with particular regard to explosives and missing files. To what extent did those difficulties inhibit the inquiry?

Chairman

We will take that question first, although I do not know if it is relevant to Part 3.

Mr. Justice Barron

As the Senator can see, we worked with a small number of staff. We had an extension to some extent of that staff by inquiries being made by Justice for the Forgotten. Obviously, if documents are not there, we can do nothing about it. I do not think that getting witnesses on oath would have made any difference. Have I answered all the Senator's questions on that?

Senator J. Walsh

I felt the arguments made were undermining what was said. I was anxious that Mr. Justice Barron should have an opportunity to respond to those points.

The other point reaches a conclusion with regard to the Government. Mr. Cooney strongly stated that: "In a democracy it cannot be part of the Government to interfere in the operation of the Garda." In reply to a subsequent question, he acknowledged that this was an absolute principle. Given Mr. Justice Barron's experience of the distinction between the Executive and the judicial system and taking account of his conclusions, did he conclude that there was a requirement on Government to ensure that the process of investigation was exhausted? Did he feel there was a failure in that area?

Mr. Justice Barron

I suppose that is largely what we are saying, yes.

Chairman

We now move on to part 4.

Deputy Costello

The questions I will put to Mr. Justice Barron relate to missing documentation in this State. Obviously, this matter is important in terms of our assessment of whether all the issues have been addressed by his report.

I refer him to the second paragraph on page 10 of his report which includes a quotation from the Taoiseach on 19 September 1999. It states:

The Government intend and will ensure that the Chief Justice [Justice Barron's predecessor, Chief Justice Hamilton] will have full access to all relevant files and papers of Government Departments and the Garda Síochána. The Government will also direct that all members of the public service and the Garda Síochána extend their full co-operation to him. Furthermore, the Taoiseach contends that the Government will seek the co-operation of the British authorities for the Chief Justice's examination.

We will leave the latter point for the moment. Did you have access to all the available documents and did you receive co-operation from all those who were in charge of them within the jurisdiction?

Mr. Justice Barron

We set out all these matters in the report starting with the Garda. The Garda made everything available to us. We pointed out there was a problem originally about intelligence documents and we were given the names of those who provided intelligence information only at the very end, but I am quite satisfied that, essentially, we got all we could get. Perhaps if I had got the names sooner, I might have spoken to them but, strangely, the intelligence files did not start until after the 1974 bombings so that anything that was not provided is more relevant to the later bombings with which we must still deal. We were not handicapped in any way.

We were handicapped by not having the 1974 Dublin intelligence file because I do not know what might have been on that. To a large extent, it is fair to say the same documentation is on the Department of Justice file but it would have had, perhaps, internal reports or considerations of what was going on and so on. I do not know. All I can tell you is that we got boxes of files relating to 1993 onwards. There was a large amount of internal documentation regarding the Holroyd allegations and so on. I do not know how much there might have been in this regard in 1974.

We got two boxes of Border incidents but they are not relevant to what we are dealing with here. We got nine or ten boxes of documents from the Department but the ones that I would regard as most important in regard to the bombings are missing. When we say they are missing in their entirety, we are not saying the Department has no documents. It did its best to provide documents to us. It showed us its books regarding how it classified documents and where they were likely to be found. The Department was helpful. The Department of Foreign Affairs was extremely helpful; it provided the minutes of September and November. There were no other relevant files. The Department of the Taoiseach provided files.

Deputy Costello

The material was accessed through liaison officers that were appointed by the Garda, the Army and the Department of Justice, Equality and Law Reform.

Mr. Justice Barron

The Army gave us everything we asked for.

Deputy Costello

Mr. Justice Barron is complimentary about the Army, from which he received full co-operation.

Mr. Justice Barron

We got a great deal of intelligence documentation without any complaint.

Deputy Costello

Were the Army files intact?

Mr. Justice Barron

Yes.

Deputy Costello

I refer to the methodology of accessing the information. Did the liaison officers who were appointed act as go-betweens between Mr. Justice Barron and the Garda, the Army and the Department?

Mr. Justice Barron

The Garda appointed an officer. We wrote to him for information, which he passed on to us. He also provided us with the documentation. When it came to the intelligence documents, it was not quite the same because such documents are secret. Mostly, we saw those documents at Garda headquarters but there were occasions on which documents were sent to us in the morning and the Garda took them back in the evening. That was the only distinction. The Army kept its intelligence documents, so we went to the barracks to see them.

Deputy Costello

Some documents were accessed through a liaison officer and some you saw in situ in the Garda and Army files.

Mr. Justice Barron

The arrangements to see them were made through the liaison officer.

Deputy Costello

You examined all the documents personally in situ after the liaison officer had accessed them for you in the premises.

Mr. Justice Barron

Myself and other members of my team. It was not solely personal to me. Other members of my team also saw the documents and looked at them.

Deputy Costello

I just wanted to clarify that point.

In relation to the Garda Síochána, from page 9 onwards, you outline the various areas where documents were not available to you. Documents were missing in Garda headquarters; the Dublin security file was missing, although the Monaghan file was supplied; there was no information on loyalists paramilitary organisations prior to 1980, even though a file had been opened in 1966——

Mr. Justice Barron

Deputy, you are reading from where?

Deputy Costello

I have taken down a list of areas of missing documentation you have referred to in the chapter. I am reading from my own notes.

Mr. Justice Barron

I do not think you are right about the loyalist documents. We said the UVF-UDA file for 1974 and 1975 in Garda headquarters was missing. We also said——

Deputy Costello

Let me quote from page 12, "In relation to loyalist paramilitary organisations, the general file started in 1966 contains no information prior to the early 1980s".

Mr. Justice Barron

That is so but——

Deputy Costello

I just wanted to list the ones that are missing.

Mr. Justice Barron

I apologise. I seem to have taken you up incorrectly.

Deputy Costello

It is a small item but it is one of the many that are missing. The annual file relating to payments to confidential sources is missing; the files for the Louth-Meath division are destroyed or missing; the files for the Sligo-Leitrim division are partly there. The big one that is missing is the security and intelligence, C3, file. On page 38 of the report it is described as follows:

Security & Intelligence - dealt with subversive or politically motivated crime. Any intelligence received by any Garda officer in that regard was filtered through C3. It also acted as the main channel of communication between the RUC and An Gaída áíochána.

The Special Detective Unit, SDU, also known as Special Branch, also came under the control of C3. Based in Dublin, it was tasked with checking up on intelligence received by C3...

That file is missing. It would have included a lot of important documentation relating to the matter you were investigating.

Mr. Justice Barron

The security file for the bombing of Dublin in 1974 is missing. We have some papers under that number but they refer to much later on.

We just do not know what the communications were between the Department and the Garda over that time, because they would be on these files.

Deputy Costello

Is the missing file a very important one?

Mr. Justice Barron

It is an important file, of course.

Deputy Costello

In your conclusions you said the files were missing or destroyed, depending on where they were. You have not indicated at any stage that files have been stolen or removed, although you may have said "misplaced". There is no indication anywhere of anything other than missing files in rather a neutral fashion. Does Mr. Justice Barron believe there is a possibility that files were simply misplaced or, given that so many are missing, that they were deliberately taken away?

Mr. Justice Barron

I am not in a position to make that comment. All I know is that we asked for the files and were told that they were not available; they cannot find them.

Deputy Costello

I ask this question because we must assess whether Mr. Justice Barron has addressed all of the issues. If we were to go a step further, having discovered that he did not receive full co-operation, and instead of voluntary disclosure of information we, or he, sought compellability, what would be the position?

Mr. Justice Barron

I do not believe that anybody deliberately withheld files from us.

Deputy Costello

That is not quite my question. Mr. Justice Barron stated at the outset of the relevant chapter: "Any information provided to the Inquiry has been given on a voluntary basis..." If he had possessed powers of compellability, does Mr. Justice Barron believe that the outcome could have been different with regard to this trail of missing documentation, in respect of the absence of which no logical explanation has been provided?

Mr. Justice Barron

All I can say is that if we had powers of compellability, we would perhaps have called all the people involved and examined them as to whether they were telling the truth. From the point of view of the inquiry, however, we felt we were getting the truth and that the documents just were not there. It seems they were not there certainly before 1993 and had gone by then.

Deputy Costello

In the course of his inspection of the files, did Mr. Justice Barron query those people who were in charge of maintaining those documents in the archives? Did he inquire as to what structures were in place and why so many files were missing?

Mr. Justice Barron

I visited the Department of Justice, Equality and Law Reform twice. I was shown the room where the files were kept and the documents that showed what files should have been there. There was not anything in the documents to suggest the existence of a file on the Dublin bombings. However, all the evidence points to the fact that there had to be such a file.

Deputy Costello

I thank Mr. Justice Barron.

Chairman

We will suspend now and return at 2 p.m.

Sitting suspended at 12.55 p.m. and resumed at 2 p.m.

Chairman

We are resuming with questions on part 4 for Mr. Justice Henry Barron. Deputy Costello has completed his questioning. Do members have any other questions on part 4?

Senator J. Walsh

It was from the liaison officer you would have got the information that the files were not to be found? Is that correct?

Mr. Justice Barron

That is correct, yes.

Senator J. Walsh

Do you know if the missing documentation was duplicated elsewhere or have you any idea what happened to the documentation?

Mr. Justice Barron

I have no idea what happened to it. It would have been duplicated partly to a file in the Department of Justice, but that file is also missing.

Senator J. Walsh

I believe you laid a good deal of emphasis on the fact that the security intelligence file could have been a very important component of the consideration of the inquiry.

Mr. Justice Barron

I thought it would have been, yes.

Senator J. Walsh

Did you interview anybody who would have been in a senior position in the Department who might have had some relationship to the files around that time and who might have had contemporaneous knowledge?

Mr. Justice Barron

I think the most senior person was Mr. Kirby who was a principal officer. He succeeded a gentleman called Mr. Caldwell. I am not sure of the date on which he did but it was somewhere in the 1970s.

Senator J. Walsh

Was Mr. Kirby, for example, able to validate that at a certain stage the files had been there?

Mr. Justice Barron

Not really. I do not really think we discussed the absence of files with them to any great degree. We were more interested in the procedures which were operating in the Department at the time with the Garda.

Senator J. Walsh

Did you inquire into or draw any conclusions from the coincidence that the Garda files were missing, on the one hand, and that the corresponding duplicates were also missing in the Department, on the other?

Mr. Justice Barron

I did not seek to do so. Obviously, other people might draw conclusions. I have no evidence to draw any conclusion from it.

Senator J. Walsh

Was Mr. Kirby the only person you could identify in the Department at that time, who was still alive, who might have been helpful to you?

Mr. Justice Barron

I know we interviewed a Mr. Magnierwho did not have any further information. I think there was a third member of the Department. It was only more recently that we were pressing on the absence of documentation. From the very beginning when Judge Hamilton was dealing with the matter, there was evidence from the Garda files that the Monaghan report had gone to the Department but there was no evidence that the Dublin report had gone to the Department. In this sense we were moving along on the basis that there was no evidence that they ever got the Dublin report. It became abundantly clear later on that everything that the Garda had on the security matter automatically went to the Department. It was then we started trying to press to see "Why is it that there is no evidence that you got it?"

Senator J. Walsh

Apart from the documentation in the Department, were there any notes? In his submission Mr. Cooney said to us that there had been daily contact between the Garda and the Department with regard to this investigation. Did you look to see if any of the civil servants at the time had contemporaneous notes?

Mr. Justice Barron

We did not get any of that.

Senator J. Walsh

All right.

Mr. Justice Barron

To be fair, I do not think we ever asked for it.

Senator J. Walsh

With regard to the missing files in the Garda, my questions were directed at the Department. In the same way did you identify anybody in the Garda who would have been dealing with the files at that time in the 1970s to ascertain what might have happened, or, to get certain dates at which the files would have been there?

Mr. Justice Barron

The liaison officer said he could not find the files. I took it from him that the search that had been made was fruitless. The people who would have known what may or may not have happened to the files would have been the chief superintendent in intelligence. The assistant commissioner may or may not have known. There would also have been, I am sure, a detective sergeant who would actually have been in charge of the files, or at least in charge of the room where they had been kept.

Senator J. Walsh

The Chairman may rule out this question. If I ask it, he can then decide. Did you look at the findings of the Garda investigation into their investigation in 1995, following "The Hidden Hand" programme? The findings are very much at variance with yours, assuming the same information would obviously have been available to them.

Mr. Justice Barron

We did look into those things and, as you know, we refer to them in the report. We also make the point - it is a valid point - regarding Garda investigations. They are looking for evidence which can support a prosecution with a probability of success. We were looking for information, full stop. Whether it could be proved or not did not concern us in the same way as it would have concerned the Garda. That is really the situation.

Senator J. Walsh

Did the Garda have any comment to make on the fact that our information, based on submissions from various people and maybe comments from yourself, is that the file remains open? For the file to remain open and effective and in order to pursue the matter, the prior documentation must be there. There is a contradiction.

Mr. Justice Barron

My understanding is that if there is an unsolved crime, the file is always open. In other words, if further evidence comes in, it can be dealt with.

Deputy Costello

I have a question arising from Senator Walsh's comments and my previous question about the voluntary nature of Mr. Justice Barron's work and the value of compellability powers. I presumed that you would have followed the paper trail and asked for an explanation regarding each step where documents were missing. You did not really ask questions about why they were missing. You accepted, by and large, that they were missing and that, therefore, you could not pursue them further.

Mr. Justice Barron

That is only partially correct, I think. We asked them to look for documents. They came back and said they had made searches everywhere they were likely to be, and they were not there. To go further might have been impugning honesty, something I did not want to do. I am not saying that it necessarily would have been impugning honesty but, from the way the questions were put to them, it did not seem to us that there was any way in which we could get any useful information as to how they were got rid of or when they were lost. All I can tell you is that the Minister for Justice, Maire Geoghegan Quinn - this again is in the report - found very little documentation in the Department in relation to the bombing. It seems it went but I do not know how.

Deputy Costello

Part of your terms of reference was to address all of the issues. Obviously, documentation being available or not is pertinent to that. My question concerned whether there is scope for further pursuit of those issues in the context of greater powers being available. Mr. Justice Barron said he would not like to impugn people's integrity. Would such powers to compel people to come along and to ask those who might have been in charge at the time to explain what was clearly a stream of missing documents or an incomplete paper trail, or to ask various questions in that regard, be valuable? Could I ask my question again?

Chairman

The question is obvious.

Mr. Justice Barron

The problem is that we do not know when they went missing. If there was proper filing or a proper register of the documents, you could see from the register when the files were opened and where they went. There would be a history of the files, presumably, if they were properly registered but nothing like that was available.

Chairman

Does the Deputy want to ask the question again?

Mr. Justice Barron

I am sorry. Have I failed to answer you?

Deputy Costello

Obviously, if there are holes in the files and files missing all over the place, it must be asked why there was no system and who might have access to those documents. If we are looking for all of the issues to be addressed, this is surely a pertinent issue because if the paper trail is incomplete, it will obviously be very difficult to reach definitive conclusions as to what might have been there or what the outcome was.

Mr. Justice Barron

The impression we got was that there was no point in following it up because they just had no evidence about it at all. The documents seemed to suggest they never existed in the first place but we know they had to.

Deputy Costello

Did Mr. Justice Barron ask that type of question?

Mr. Justice Barron

I think so, yes. I was there twice. The first time, we were shown over the documents, books and so on. The second time, I saw a principal officer. I was shown the books again and tried to see from him if there was any way in which we could find out what happened to them but he had no idea.

Deputy Costello

Would it have made a difference if Mr. Justice Barron had powers to compel people to come before him and demand forthright answers as distinct from voluntary disclosure?

Mr. Justice Barron

The impression I got was that they were doing their best to meet the requirements and to answer the questions put to them. That is all I can say.

Deputy P. Power

Does Mr. Justice Barron feel that his terms of reference required him not just to ask where and what files might or might not be available? Does he think his terms of reference meant he should - to use the words of the terms of reference - conduct a thorough examination as to why these documents were missing? We are trying to see if the terms of reference were addressed. The concern that is expressed to us repeatedly, particularly by the families and the groups who have come to us, is, to put it bluntly, that there may be something sinister in this. When he was looking into the matter, did he feel his terms of reference asked him to inquire why they were missing as distinct from the mere fact that they were missing?

Mr. Justice Barron

The view we took at the time is that they were missing. Apparently they had never existed, but we knew they had to have existed. We did our best to find out why it was that they did not exist now. From the way some of the questions have been put to me, we may not have followed it up the way the question seems to suggest we should have done. Our view was that we did follow it up.

Deputy P. Power

I was not suggesting——

Mr. Justice Barron

I am not suggesting that either.

Deputy P. Power

From Mr. Justice Barron's experience in this inquiry to date, he has looked at files from a number of Government agencies, and the Garda or the Army, and he has seen the volume of information there. It is reasonable to assume that the files in the Department of Justice, Equality and Law Reform would have been at least as voluminous as the Garda files, assuming they were all transferred over, if not significantly more voluminous if they contained an assessment of what was contained in the Garda reports. Assuming that they were extremely voluminous, did he ever speculate, even to himself, that they may have been removed or destroyed as distinct from merely lost?

Chairman

The question is speculative. We must deal with the report.

Mr. Justice Barron

Obviously, we speculated but we found no evidence. What we found is in the report, although I am not trying to fall back on that remark all the time.

Chairman

We come back to Deputy Power again in regard to part 5 - the documentation on Northern Ireland and the co-operation received from various people in the North.

Deputy P. Power

It is from one set of missing files to another. Part 5 has questions relating to documentation in Northern Ireland and co-operation which Mr. Justice Barron may or may not have received from title holders in that jurisdiction. On page 16 of his report, he indicates that he received an assurance from Mr. Adam Ingram, Minister of State at the Northern Ireland Office, that the British Government would respond sympathetically and in a positive spirit to any requests for information or assistance from the inquiry. I note that Mr. Justice Barron subsequently had a meeting on 12 September 2000 to follow that up.

Mr. Justice Barron

It may not be stated there, but it was Justice for the Forgotten who got the assurance. When we wrote on 10 November, we were basing our letter on the assurance it had received.

Deputy P. Power

I take it that Mr. Justice Barron never received assurance from the British or Northern Ireland authorities.

Mr. Justice Barron

No, but assurances would have been given to the Taoiseach that this was so. It was included in letters to us in a similar vein.

Deputy P. Power

That is correct. I see that on 23 February 2001, the Taoiseach wrote stressing the public concern and pressure for progress on these matters.

Mr. Justice Barron

I recollect that he had also spoken to members of the UK Government and that they had meetings from time to time.

Deputy P. Power

Dr. Reid stated in his letter of 7 March 2001: "I am happy to re-affirm our commitment to treating all requests from the Inquiry sympathetically, including at the higher Departmental and Governmental level." In light of this statement, does Mr. Justice Barron feel he was in a position to address problems associated with the terms of reference arising from the documentation, or lack thereof, he received from the Northern Ireland Office or the Secretary of State?

Mr. Justice Barron

The problems we faced regarding the information we received are set out in page 18 of the report, where we refer to the main difficulty in assessing the usefulness to the inquiry of the information, etc. When three of us met Dr. Reid and three of his officials in January 2002, we stressed that we wanted to see original intelligence documents, but we never got them. Of the information we received, some of it consisted of excerpts from an intelligence document, but there was not sufficient information to work out who got what document, whether there were other documents dealing with similar matters and how they were assessed by the people to whom they were addressed, etc. Therefore, we had to rely on what we were told in the letters.

We were given much information about the intelligence network and how intelligence was gathered in two strands, the first of which was a police strand and the second an army strand, how intelligence was dealt with by the Chief Constable on the one hand and the chief commanding officer of the army on the other, and how headquarters had representatives of the director and co-ordinator of intelligence, who had the ear of the Secretary of State. All this was explained to us. It is probably fair to say that the table we got was available to the Bloody Sunday inquiry. The table remained the same but was updated for us in correspondence. We were also given reference to the Home Office directive as to how the secret service was kept separate from political aims.

Ultimately, I said that the best intelligence was that the UVF was responsible. It talked about certain warnings that had been given and, as we say in the report, these had already filtered through to the inquiry through documents we got from the Garda and the army. There was some post-attack information, but not very much, and also a suggestion that Robin Jackson, who was supposed to have been one of the people involved in coming to Dublin, had said the "Hidden Hand" programme portrayed him accurately. That was about it. From then on we asked further questions. Substantially, not an awful lot else came in.

Deputy P. Power

In the light of your meeting in January 2001 where you sought the contemporaneous intelligence documentation and in light of your reply now, would it be correct to say that you could not address the issues in your terms of reference because you were hampered or frustrated by the lack of this documentation?

Mr. Justice Barron

I do not mean to correct you, but the meeting was in 2002.

Deputy P. Power

It was 17 January 2002. You are correct.

Mr. Justice Barron

It is probably fair to say that most of the other information we got tended to centre around the police inquiries in December 1978 as a result of the arrests of John Weir and William McCaughey for the murder of William Strathearn and the inquiries that went on then. We got a lot of information then. Frankly, I do not think we really got any information in the 1974 period specifically in the same way as we got information in the 1976 period.

Deputy P. Power

Regarding the 1974 to 1976 period, the crucial period, could it be said that you were not in a position to address the issues in your terms of reference because your attempts to get that contemporaneous intelligence documentation were frustrated or hampered by the authorities?

Mr. Justice Barron

We certainly felt that if we got more intelligence information we might well have got more information. I remember putting the phrase "I would ask you to share your information with us" in one letter to the Northern Ireland Office following the information that we had received.

Deputy P. Power

In the same letter you might also have said that you were disappointed. What I am trying to get at——

Mr. Justice Barron

I cannot say whether it was the same letter or not.

Deputy P. Power

What I am trying to get at is whether your attempts to address the issues with which you were charged were frustrated. In light of the assurances given vicariously through Justice for the Forgotten and directly to you in Dr. Reid's letter, do you think those attempts were frustrated by the failure to produce this documentation?

Mr. Justice Barron

The answer to that is "yes". The most important piece of information, as far as I was concerned, was the information given to our military intelligence on 31 May 1974 dealing with arrests on 26 May. The statement was that these arrests were carried out as a result of good intelligence and had nothing to do with the police. First of all it seemed to us that if there was good intelligence then they knew, and they were saying, that at least two of the people arrested were involved in Dublin. It seems to follow that they would have names of people who were involved in Dublin, that they would have a certain amount of evidence in their intelligence and we sought answers to follow up that. We followed it up with both the RUC and with the Northern Ireland Office but, unfortunately, we did not get any satisfactory replies.

Deputy P. Power

Mr. Justice Barron agreed with me that those attempts were frustrated. Did you consider at any other time any other methods by which you might be able to obtain that documentation?

Mr. Justice Barron

The only people who could give it to us were the British Government.

Deputy P. Power

You did not think of any other methods of trying to obtain that documentation?

Mr. Justice Barron

No.

Deputy P. Power

Regarding collusion, we have had a number of submissions. Perhaps I am straying into Deputy Finian McGrath's area here so I may not pursue this. However, do you definitely think the documents frustrated your ability to carry out those terms of reference?

Mr. Justice Barron

Let me put it this way; we feel there was more information there than we got. That is putting it very simply.

Deputy P. Power

I have one final question, that relates to both of Mr. Wylde's reports to Mr. Justice Barron. I took a note of this earlier because he said he took it so seriously that he referred his reports to the Northern Ireland Office. Am I correct in that regard?

Mr. Justice Barron

We did not refer his report to the Northern Ireland Office. He said in his supplementary report that he was satisfied the ammonium nitrate constituent of the bombs was recrystallised and that it could only have come from captured sources. We wrote to the Northern Ireland Office to ask what the procedures were as regards captured explosives so that we could form an opinion, depending on the answer, as to whether it was furthering Mr. Wylde's viewpoint or otherwise. We felt it was something that had to be followed up.

Deputy P. Power

Mr. Justice Barron put it much better than I did. Did he get a satisfactory response to that question?

Mr. Justice Barron

The response we got is quoted in full in the report.

Deputy P. Power

Was Mr. Justice Barron satisfied with it?

Mr. Justice Barron

We had to be. It did not do any more than give us the procedures for storing and destroying captured explosives.

Deputy P. McGrath

On the point regarding documentation from Northern Ireland and Britain, did Mr. Justice Barron say he sought the co-operation of the Taoiseach on two occasions to secure further documentation?

Mr. Justice Barron

I will not give any particular number of times, but whenever the problem arose he was prepared to help. We were told from time to time that he had mentioned the problems we faced to British Government officials.

Deputy P. McGrath

The Taoiseach's office was kept up to date all the time on co-operation.

Mr. Justice Barron

It was, more or less, on that sort of issue.

Senator J. Walsh

The report acknowledged that in the early stages, when there was direct contact with the RUC, Mr. Justice Barron was getting information he felt was satisfactory, that is, that the level of co-operation was satisfactory.

Mr. Justice Barron

This was information as regards the investigations in 1978, for example. They gave us all the statements, daily record sheets of the questioning of the people who were arrested and transcripts of the follow up questioning of various people as a result of the Garda Síochána investigation in 1999. As regards the gun used in the murder of John Francis Greene, we were given ballistic information at the time it was forthcoming. We got more ballistic information later on. Two guns were found, one in 1976 and one in 1979, and we were allowed to see the original files, which was quite a departure from normal proceedings. We got assistance to that extent.

Senator J. Walsh

Before pursuing that, did Mr. Justice Barron have any communication or channels into the British army, as he had into the RUC in that regard?

Mr. Justice Barron

No.

Senator J. Walsh

With regard to the RUC, the matter then moved on to the Secretary of State for Northern Ireland and the Northern Ireland Office. At that stage there were significant delays in responding to correspondence. Also, as the report states, when Mr. Justice Barron tried to revert to the RUC he found that it would now only channel information through the Northern Ireland Office.

Mr. Justice Barron

That is correct.

Senator J. Walsh

What, if any, information emerged from that process which would indicate a line of inquiry that might be pursued? Did Mr. Justice Barron feel seriously inhibited by the fact that he could not exercise compellability?

Mr. Justice Barron

Most of the information we wanted from the RUC was post 1974. The main letter which we wrote and did not get an answer to was dated, I think, 15 April 2001 - I cannot remember the exact date. We never got any answers to that. In November 2002, which is a long time later as members will appreciate, after asking the RUC did it intend to answer, it said it was still preparing a report; it would pass it to the Northern Ireland Office and the Northern Ireland Office would pass it on to us. In June 2003, we got answers to most of the questions we had asked almost two years before. Some questions were not answered and we took it up again.

Senator J. Walsh

To what extent did Mr. Justice Barron feel he did not have, at that stage, access to original documentation and the comprehensiveness of available intelligence? To what extent did that impinge upon the inquiry fulfilling its remit in a comprehensive way?

Mr. Justice Barron

If one does not see the original documentation and one does not see it in its context, it is obvious one is not getting the full picture.

Senator J. Walsh

Would it be fair to say that some of the conclusions Mr. Justice Barron reached on matters such as, for example, collusion are preliminary because he did not have the scope of access he would have wished for as part of the inquiry?

Mr. Justice Barron

It is fair to say that our conclusions are based upon what we found.

Deputy Costello

Senator Walsh touched on my point. Mr. Justice Barron reaches the conclusion, on page 20, that this report is limited as a result of the absence of the original documents and information which was not made available. He is saying that he could not fulfil the terms of reference in dealing with all the issues because he did not have access to original documents and other security information denied to him.

Mr. Justice Barron

It is fair to say that if we got the same levels of support as we got within the jurisdiction we would have had much more information.

Deputy Costello

Was the question asked whether documents had gone missing in Northern Ireland in the same way as they did south of the Border?

Mr. Justice Barron

I do not have an answer to that question. It did not arise.

Deputy Costello

Mr. Séan Donlon, when he attended the sub-committee, expressed the very confident opinion that the robust relationship that currently exists between the Irish and British Governments could provide scope for an international dimension to access some of the documentation refused to date. Would Mr. Justice Barron care to comment on that possibility in the context of him not being able to address all the issues because the documentation was not made accessible to him?

Mr. Justice Barron

I do not think it is my province to comment on that.

Deputy Costello

I think it is.

Mr. Justice Barron

In what way? I have answered the Deputy's questions about what we got or did not get.

Deputy Costello

Does Mr. Justice Barron have no answer on this point?

Chairman

The Deputy will have to accept the answer given.

Deputy Costello

I accept the answer. We will deal with other issues at a later stage.

Chairman

That is a matter for the sub-committee.

Page 11 refers to the difficulties Mr. Justice Barron experienced in his inquiry. Point (6) states: "In some cases, information has been refused." Is there any specific information that was refused which possibly could be obtained on the basis of compellability?

Mr. Justice Barron

I do not think so. If one is refused information, it is because they do not want to give it to one. Unless one can point to the information that one knows they have and one has the power to compel them, I do not think one can do anything about it.

Chairman

You say information was refused. To what information are you referring? Were you aware somebody had information? If not, how did you know it had been refused?

Mr. Justice Barron

I have a feeling that we were probably referring to the Northern Ireland Office. We also sought a meeting with Joe Tiernan who has written a book on it and he has never come to see us. To that extent, I do not know whether it necessarily follows that giving us the information would be detrimental to his particular interests. At the time he said he was not coming because his book had not yet come out.

Chairman

We are moving to Part 6. Deputy Finian McGrath will ask questions relating to collusion and interpretation of facts that were available.

Deputy F. McGrath

I welcome Mr. Justice Barron and Mr. Eanna Hickey to the sub-committee. As the Chairman said, my questions relate specifically to collusion and the interpretation of the facts available to you and the inquiry. With regard to collusion, I refer to section 4, page 275, line 3 of the Barron report, which states: "There is some evidence to suggest that some Garda officers, unwittingly or otherwise, may have been giving information to members of the British army or intelligence services". Will you expand on this? What precisely do you mean by "unwittingly or otherwise"?

Mr. Justice Barron

We got information from various Garda officers that when they went North, they might well have met people introduced to them as liaisons of some sort, who may well have been army officers. That is the source of that.

Deputy F. McGrath

Could this information have been used to damage the interests of our State or its citizens?

Mr. Justice Barron

My understanding of what they were saying was that they were perhaps being pumped for information not only by the RUC but also by an army officer. However, do not forget they were going up there to share information on whatever issue they went on.

Deputy F. McGrath

My second question relates to Captain Fred Holroyd, the former military intelligence officer who was very active in the North in undercover operations and used to go around disguised with long hair and a beard. Page 179, paragraph 2, of the report states: "Since that time Captain Holroyd has persistently accused the British army of having engaged in serious unlawful acts, including murder and kidnapping, of encouraging assisting Loyalist paramilitaries in the commission of such acts, of recruiting agents from the ranks of the security forces of this State and of acts of gross incompetence which resulted in loss of life". That is the background to Captain Holroyd. However paragraph 5 states: "For that reason, his claims justify careful scrutiny. At the same time it must be acknowledged that Holroyd is, in some ways, a compromise source". What do you mean by the term "compromise source"?

Mr. Justice Barron

There are many reports on him suggesting that he is a Walter Mitty type. That is probably the easiest way of explaining it.

Deputy F. McGrath

So you would cast a serious question over his credibility. Is that what you are saying?

Mr. Justice Barron

We said his detail was totally unreliable but the substance related to events which took place.

Deputy F. McGrath

Even though his CV and practical experience seem to suggest we should listen to this person. I am sorry if I am crossing the line.

Chairman

Mr. Justice Barron does not have parliamentary privilege and we cannot in any way impugn an individual and ask for agreement on it.

Deputy F. McGrath

I understand where the Chairman is coming from. I am trying to obtain more information to help us make an informed decision

My next question relates to the facts available to Mr. Justice Barron. Are you now satisfied the inquiry fully addressed the collusion issue?

Mr. Justice Barron

Yes. I explained this morning that I considered there to be a distinction between collusion and collusion affecting the bombings.

Deputy F. McGrath

Has anything emerged in the sub-committee hearings that would suggest that further inquiry on the collusion question would be justified?

Mr. Justice Barron

We have given all the information we can. We based our report on this sort of issue, very largely on the information our military intelligence obtained and on the information the RUC obtained about the farm at Glenanne. There is nothing specific in that which we felt justified us going beyond what we said. Of course, we took into account all the matters told to us by Wallace, Weir and Holroyd himself.

Deputy F. McGrath

We also had a powerful submission from Seán Donlon.

In conclusion 7, paragraph 2, page 276 the report states, "The Government of the day showed little interest in the bombings. When information was given to them suggesting that the British authorities had intelligence naming the bombers, this was not followed up".

This is a very powerful conclusion. What were the main issues in your examination that led you to that conclusion?

Mr. Justice Barron

I have already dealt with this fairly fully. First, the information obtained at these meetings was not the same as the information which, up to then, had been available. The information that military intelligence obtained and which it passed to the Garda, was quite different in its totality. Part of that information was also passed on from Portadown to Inspector Kelly and Detective Sergeant Burns but it was quite different and there is nothing in the documentation that suggests the Department of Justice had this information or had any information of a nature that would have occurred from these meetings. As I said this morning, the files we have not been able to see may have all this information on them, for all I know.

Deputy F. McGrath

Chairman, is this the appropriate time to ask a question on the role of independent groups in the inquiry?

Chairman

Yes.

Deputy F. McGrath

Was the role played by Justice for the Forgotten and other victims' groups helpful? What kind of leads, supports and evidence co-ordination were they able to provide to you? Is there a potential for independent bodies in any future investigation, for example international human rights organisations? With the knowledge of this type of investigation, is there a potential role for such groups in the future?

Mr. Justice Barron

We felt that Justice for the Forgotten was very helpful. In one way it was an extension of our investigation arm. It was responsible for getting Mr. Wylde's reports, for example, and we followed them up as well as we could. It followed up lots of other things. We have ten bulky files of information. I do not feel I should point to any other particular piece of information. I mention Mr. Wylde because his information has been dealt with here. They were very useful.

As I said this morning in a different context, we were concerned that our report should be seen to be totally independent. The more one involves oneself with outside bodies or persons the more the danger of being accused of saying something only because so-and-so told one to say it. For this reason - it must have been frustrating for Justice for the Forgotten - we did not pass it on information we were getting elsewhere, save in so far as we might have wanted its assistance to get information. In such a circumstance one must say why one wants the information and what one wants to expand on. To that extent, we told it certain things.

Deputy F. McGrath

Overall, its position has been very helpful.

Chairman

Thank you very much. Deputy Costello, do you have a question?

Deputy Costello

I have just one brief question. Mr. Justice Barron indicates that there was individual collusion - a certain pattern - among members of the UDR, the RUC and the British army. If there was collusion at a higher level, would the only way to identify this be through documents in the Northern Ireland Office which would not have been disclosed to you in either Britain or Northern Ireland?

Mr. Justice Barron

It is funny. People can get perceptions of something that is happening. They cannot prove it but their perceptions may well be correct. We have got one instance where we got evidence from people who were talking to us to the effect that they thought something sinister was going on in a particular area or place. They had no proof that it was going on but they must have seen things. They were not necessarily even able to associate what they saw with this. Subsequently it was found that their perceptions were totally correct, by evidence. In that context, a particular place was raided and searched and evidence of terrorist activity was discovered.

We also had other witnesses who felt that this was going on. If one takes the evidence of Mr. Wallace, for example, about Glenanne, he says everybody knew about it. That seems to suggest a perception that perhaps it was a lot higher up than one believes. John Weir's evidence also suggests that there was collusion fairly high up. There is also the evidence of Seamus Mallon, which might or might not be read in this way. He says that a senior police officer, a senior army officer felt themselves vulnerable. There could be many reasons they felt vulnerable. One of them would be that if they took any steps, it was perhaps higher authority that was authorising them. I am not suggesting that, I am just pointing out the difficulties from the sort of evidence we had, to say whether there was collusion higher up. When it came to the actual bombings, there was absolutely no evidence at all to suggest it.

Deputy Costello

My question was slightly different. John Weir, Colin Wallace and Fred Holroyd have all given their statements. They were individual members who held individual positions. There are tens of thousands of original documents and a raft of security information which have not been perused. These would contain information that could give a broader brush as to what was policy and what decisions might have been made at higher levels. Is there any way of knowing whether there was collusion at a higher level without gaining access to those original documents and security information, to which you were denied access?

Mr. Justice Barron

I cannot really answer that question. All I can say about it is that, of necessity, the secret security services, if they were involved, would not have it in writing.

Deputy Costello

I will change the question around slightly. If collusion was ever to be proved, would that be the source?

Mr. Justice Costello

The documents that the security services hold? I suppose so. That would be one source. It may well be that there are references in other documents which, if read in a particular way, might suggest that they knew there were things going on which should not have been going on.

Deputy P. Power

I wish to pursue the collusion issue and touch on some of the points made by Deputy Costello. The final page of the report states:

Ultimately, a finding that there was collusion between the perpetrators and the authorities in Northern Ireland is a matter of inference. On some occasions an inference is irresistible or can be drawn as a matter of probability ... this inference on this occasion is not sufficiently strong ... [Collusion] is not proven.

What standard of proof would Mr. Justice Barron have adopted with regard to something being proven? There can be proof beyond all reasonable doubt, as in criminal cases, or on the balance of probabilities or on the preponderance of the evidence. What level does Mr. Justice Barron mean when he says it is not proven in this case?

Mr. Justice Barron

There we are talking about probabilities.

Deputy P. Power

The balance of probabilities?

Mr. Justice Barron

We also used the word "likely" further up in the conclusions. Basically, what we were trying to do was not to conclude anything if the evidence we had would make the conclusion unfair to whoever we were accusing. I know that is not answering the question accurately. We did not consciously say "probabilities" or "not probabilities". We were dealing more with the question of fairness to the people we were dealing with.

Deputy P. Power

The people who are asking us the questions on this issue would like to know if it is possible to prove collusion in due course. This is Deputy Costello's point. We have to make a finding as to whether it might be possible or fruitful to investigate it. Where is the bar or at what level can one say that collusion is proven? Mr. Ó Dúlacháin, from Justice for the Forgotten, mentioned this with regard to the level of proof required for collusion. There are international standards which would suggest that one does not even have to reach the balance of probabilities as long as there is a preponderance of evidence. I am trying to find out, on behalf of members of Justice for the Forgotten and the victims of these atrocities, what level of proof is required. Mr. Justice Barron said earlier that some people have a suspicion. What has to be proven to prove collusion? Is it ever possible to prove it?

Mr. Justice Barron

I would never conclude on the basis of a perception. That would not be satisfactory. To say of somebody or of a group that they connived or colluded at a massacre of innocents without having a reasonable basis for saying so would be totally unfair to such people. That is the sort of approach I would have adopted. The problem about the report is that it is not a judgment in the sense of having listened to one side and listened to another side, one decided which side one wished to accept. We put into the report as much evidence as we believe is reliable or has a basis in reliability. We have given conclusions. I am prepared to accept that other people may take different views as to what conclusions should be reached on the facts of the report. However, I do not think, in this type of situation, it would be fair to anybody to brand them without a reasonable amount of evidence.

Anyway, it is not a finding so it does not brand them in that sense. However, we all know that if a report of this nature comes out in particular fashion, although it has no legal force, many people will think that a finding has been made.

Chairman

It is an interesting contribution. It will provide food for thought for us for when we will have to make decisions on where the standard or the bar is in the context of the terms of reference.

Deputy P. Power

That is the reason I am pursuing the matter, if the Chairman will allow me a final question. Even if it is possible, to use Mr. Justice Barron's words, to assemble reasonable evidence that there was collusion, what he is saying is that there is a world of difference between that and proving that somebody was guilty beyond a reasonable doubt of collusion, in other words, to a criminal standard.

Mr. Justice Barron

Of course. Another point is that we tried, and I do not know how successful we were, to differentiate in the report between evidence and information. In a large measure what we rely upon is information rather than evidence.

Deputy P. Power

To assemble that sort of evidence for the second bar——

Mr. Justice Barron

One needs to be fair. That is my opinion.

Deputy P. Power

One needs to be fair but would he say it is extremely unrealistic that such evidence could be obtained at this remove?

Mr. Justice Barron

I think it is totally unrealistic myself but——

Deputy P. Power

Totally unrealistic. I thank Mr. Justice Barron.

Senator J. Walsh

In response to Deputy Finian McGrath, Mr. Justice Barron stated that he was satisfied that he addressed fully the collusion issue and he left that as a stand alone statement. Surely he would have to qualify that within the restrictions of the information that became available to him.

Mr. Justice Barron

Of course, yes. Sorry, I do not mean that our review of collusion is exhausted by any means.

Senator J. Walsh

Did Mr. Justice Barron conduct any inquiry into the 1972 Sackville Place bombings?

Mr. Justice Barron

We are inquiring into that.

Senator J. Walsh

He is doing that at present.

Mr. Justice Barron

We hope to get it out within six weeks from now.

Senator J. Walsh

Has he reached the collusion element within that inquiry? Has he considered the collusion issue in that regard?

Mr. Justice Barron

We will be considering it, yes.

Senator J. Walsh

Would he agree that the commission of inquiry was ill-equipped to deal with an issue of collusion, given the level of sophistication and the fact that it would not be advertised in various documents? Would he agree that the type of inquiry he was conducting would not, except by chance, have got to the bottom of a collusion question?

Mr. Justice Barron

I suppose one could say of a private inquiry, as opposed to a public inquiry, that it is an amateur as opposed to a professional but I do not honestly think——

Senator J. Walsh

I am not saying that.

Mr. Justice Barron

I am not suggesting the Senator is doing so. I do not think that is necessarily a fair way of looking at it. We had the same opportunity to get information as a public inquiry in one way, but in another way, no. I readily accept that, but in this instance we got as much information as we believe we could have got. If it is thought that we could have got more by being a public inquiry, that is not an issue for me.

Senator J. Walsh

Mr. Justice Barron said that he got as much information as he could have got. Would he agree that in this instance the information on collusion, if available at all, was likely to be in another jurisdiction, that he had no powers or function of compellability and that he was depending entirely on the voluntary co-operation of the people who may have been involved? When I say people, I am talking about bodies, institutions, etc.

Mr. Justice Barron

I have not referred to this; it will be referred to in later reports as it happens. On occasion we have put allegations of collusion in correspondence and it has never been met head-on.

Senator J. Walsh

It has never been contradicted?

Mr. Justice Barron

Not really. I think "no" is the answer to that.

Senator J. Walsh

That is interesting.

Mr. Justice Barron

I have something in the back of my mind about a letter, which I do not think has been answered, in which a statement was made to the effect, "Do you want us to accept that there was collusion?", but we have not got an answer to that. I am thinking also of a particular letter - it has nothing to do with us. We did not write the letters; I think they were written by the Pat Finucane Centre, saying "there was collusion, and what is your answer to this?" The answer that came back was: "We have to take it up with the people you are accusing [the police]." When the answer comes back again it said: "We have spoken to the police". All the answer says is: "We do not like collusion; we think it is a terrible thing, we would not condone it for a moment." Even then it was not answered.

Senator J. Walsh

In connection with a submission presented to us on this subject from Mr. Séan Donlon which we found interesting to say the least, he was a person who was not interviewed by the inquiry. In his position, at the time in the early 1970s, he was spending a considerable amount of time - according to what he stated to us - in Northern Ireland looking at the operations of the security forces, in particular, and did observe what was happening on the ground. He seemed to have quite an amount of information on collusion. He did say he did not have evidence. We would all have to respect how difficult it would ever be to get evidence in that regard. I do not know if you have read his submission and the report on the question and answer session we had with him.

Mr. Justice Barron

We have read them.

Senator J. Walsh

What weight would you attach to what he has said? He raised an interesting point, that apart altogether from the concern of the inquiry and the families and so on, there was the whole issue of sovereignty.

Chairman

That is not in the report and it would not be for the judge to say what weight, in any shape or form, he could attach to it.

Senator J. Walsh

May I rephrase my question?

Chairman

Advertisements were put out and people were invited to——

Senator J. Walsh

Given what he said here and his knowledge of the question and answer session here, does Mr. Justice Barron think he would have been a valuable witness to the commission of inquiry?

Mr. Justice Barron

I do not think, from what I remember reading, that he had anything specific to say on the bombings.

Senator J. Walsh

It is probably fair to say that.

Mr. Justice Barron

This is the problem.

Senator J. Walsh

To digress a little, I refer you to page 230 of your report where you deal with security forces co-operation with regard to a possible bombing in County Cavan where the security forces say "... two teams were deterred from making their attacks on villages over the border and three men have been arrested and charged with possession of fire arms and arson". It is the next paragraph on which I seek your comment. It states:

As an indication of the level of intelligence available on loyalist groups, this seems particularly important. In the light of this intelligence coup, it is harder to accept the proposition that the bombings of 17th May came as a total surprise to the security forces in Northern Ireland.

Mr. Justice Barron

If they have the intelligence to stop that, perhaps they should have had the intelligence to stop the bombings in Dublin.

Senator J. Walsh

This seems to imply from your investigation of these matters that you feel the bombings of 17 May would not have come as a total surprise to them. This infers that perhaps, or even more than perhaps, there was some information available to the security forces.

Mr. Justice Barron

That is so. If you read the report, you will see that the RUC also come in for criticism. They ought to have known. They knew what was going on in their area, so to speak.

Senator J. Walsh

Does that not beg the question, if they had that information, why it was not passed on.

Mr. Justice Barron

Of course - if they had the information. Just because they got intelligence on one thing does not necessarily mean they had to get intelligence on another. It leads us to suppose that there was something more serious, perhaps they should have got it. We are faced with the situation. Can you say because of that that they, therefore, knew about Dublin? We are told by the Northern Ireland Office that they have made inquiries and nobody knew about it in advance. We accept that. I do not think we should not.

Senator J. Walsh

Would you agree - given the nature and specification of collusion and everything that has been said by others, including the national congress, about how difficult it would ever be to establish it - that the only possible avenue to successfully inquire into it would be one which would have jurisdiction in Britain and Northern Ireland and all the necessary compellability powers, including obviously the necessary political will and co-operation, to establish the position one way or another on this issue?

Mr. Justice Barron

Certainly, there must be information in a different jurisdiction that we have not had.

Chairman

Thank you very much. We are moving on to part 7. So many questions have been answered that the number of questions I must ask is the minimum. First, how did the difficulty caused by the lapse of time in regard to missing witnesses and documents diminish the inquiry?

Mr. Justice Barron

On what I call the three main witnesses from Northern Ireland - Wallace, Holroyd and Weir - I do not think the lapse of time has had any effect. I think, to a large extent, the lapse of time may have had an effect on the memories of people involved in the Garda investigation. I am not going so far as to say I am positive of that but it was very difficult to find anybody who knew a lot about it. We saw the garda who knew most about Monaghan; I think he has more information than we got from him, I am not sure. Other gardaí, I think, came and told us all they knew. We got a large number of gardaí who went out of their way to tell us all they knew. The reality of it is that with the lapse of time it is a fact that you do not remember as much afterward. When we saw them first it was 27 years later; it is now nearer 30.

Chairman

So it is not only an absence of personnel but also a lapse of memory.

Mr. Justice Barron

Yes, that must happen.

Chairman

Is there any question on the procedure?

Deputy P. Power

Arising from Judge Barron's reply, did you say you thought that one garda had more information than he was willing to give you?

Chairman

I picked that up also but purposely did not inquire about the individual.

Deputy P. Power

I will not ask about the individual.

Chairman

I think the individual was named but I would prefer if the Deputy did not go forward on that.

Mr. Justice Barron

It is a problem we faced.

Deputy P. Power

I will not ask as I know what the rules are. You are saying that in at least one instance, a member of the Garda did not co-operate——

Chairman

A former member.

Deputy P. Power

A former member.

Chairman

I would prefer if you did not go any further on that at this time.

Deputy P. Power

I am not going to name anybody but I want to establish, in regard to whether it was possible to address all of the issues, whether a former member of the Garda——

Chairman

We are not going to discuss former members or anything like that.

Deputy P. Power

I will not mention any names.

Chairman

The Deputy should ask a specific question regarding people in general.

Deputy P. Power

Okay. In general, in terms of the co-operation you received from the Garda, are you saying that in some instances you did not receive full co-operation?

Mr. Justice Barron

The real answer is that the documents were there. The memories might have been dulled to some extent. I feel we got most of the information we could possibly get.

Deputy Costello

Judge Barron, you spoke in confidence to some people whose names have not been revealed to us. Could you give us an indication of the value to your inquiry of the information given in confidence to you and whether, if there were a further judicial inquiry, these people would be available? In other words, would most of them be outside the jurisdiction?

Mr. Justice Barron

Strangely enough, there were people who said, "We do not want you to mention our names" but I do not think any information they gave us has had any bearing on the report. I gave an example earlier of someone who did not want to be named. That is post-1974. The post-1974 report can be made perfectly without any reference to their information. Their information does not actually add anything. I thought it was an interesting insight into people who see things happening around them. They are not sure what it is. They have an idea and sometimes they can be right, but not always.

Deputy Costello

Would these people be amenable to judicial inquiry in terms of legality?

Deputy F. McGrath

I have a question on an issue Mr. Justice Barron raised this morning. You did not seem to put much faith in the submission from Séamus Fitzpatrick, the witness who was parking the car in Parnell Street. You said the driver became agitated. You did not seem to be concerned about the word "agitated". I got the impression that the agitation could have related to a little parking problem.

Mr. Justice Barron

It could have been anything.

Deputy F. McGrath

If one reads the detail of his evidence, it is more than a parking problem. Could you expand on the use of the word "agitated"? This is a submission from Séamus Fitzpatrick about parking the car in Parnell Street at 3.30 p.m. He is convinced he saw the bomber.

Mr. Justice Barron

This is the problem with Mr. Fitzpatrick. I appreciate that. It is not that——

Deputy F. McGrath

He went back over to the driver of the car and obviously had a good look at the person.

Mr. Justice Barron

For that particular individual to have been the bomber, for the car to have been the bomb car, it had to have been moved. It had to have been the car which came back three quarters of an hour later and was parked in a different spot on that side of the road.

Deputy F. McGrath

So the green car was not the car——

Chairman

We cannot pursue that point.

We have reached a conclusion of today's business. I thank Mr. Justice Henry Barron for coming here today and answering so succinctly all the questions. I thank him for assisting and informing us better in order that we will be better able to make decisions on the job we have been given in the terms of reference by the Dáil. I also pay tribute to Mr. Justice Barron for the report itself. It is the first opportunity I have had to publicly thank Mr. Justice Barron for his dedication and for the competence and ability he has shown in the great work he has produced on the Dublin and Monaghan bombings. Thank you very much Mr. Justice Barron.

Mr. Justice Barron

As I stated, I was very fortunate to have the team I had with me.

Chairman

It is unlikely that we will call on Mr. Justice Barron again but we would be delighted if he would facilitate us if necessary.

Mr. Justice Barron

If I can assist, I will do so.

Chairman

I thank Mr. Justice Barron. Would it be possible for us to make a copy of the photographs to which he referred?

Mr. Justice Barron

I referred to two photographs.

Chairman

We will have copies made and return them to Mr. Justice Barron.

I thank everybody for attending. The Justice for the Forgotten group has been here over a number of days and I thank it for attending so assiduously.

The sub-committee went into private session at 3.27 p.m. and adjourned at 3.45 p.m.