What Lord Steyn said is interesting; it is an observation. He said that the Court of Appeal posed the question as to what would be the benefit of a further inquiry. It would ask that given the number of inquiries or semi-inquiries that have taken place in the Mubarek case. He also said that the investigations conducted so far do not either singly or together meet the minimum standards required to satisfy article 2, but, in any event, it is vital that procedure and merits should be kept strictly apart; otherwise the merits may be judged unfairly. He is saying that you must not allow the very natural riposte that is made - "where are we going from here and what we are going to get out of it?" - to infect the procedural decision which is vital to a maintenance of the right to life. These are two very distinct questions which, interestingly, are echoed in your terms of reference - "necessary or fruitful". I am only dealing at the moment with the "necessary" part. That is actually whatLord Steyn is putting his legal finger on. He cites the following paragraph as a persuasive argument:
As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which somehow were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.
All he is saying is that one cannot pre-judge a properly constituted inquiry as to what it might come up with. It might not come up with anything but that does not matter; there will have been, as it were, an adherence to the convention and the rights that arise out of it, and the public will be reassured that the determination, as it were, has arisen in a public and open way, as demanded by that. That is an important observation.
The other speeches in this judgment - I do not go through them all - are effectively saying much the same, namely, that one must keep the merits separate from the procedural arguments. Therefore, if you keep them separate, you begin to understand why article 2 is so important. Also, there is an indication that, plainly, if a public inquiry is set up, a very firm hand must be kept upon it. What I would like to do in the time allotted is indicate - I hope plainly, as I have done as I have gone along - that the minimum requirements have not been met in this case yet. They could be met by a public inquiry but, of course, your concern will be about how a public inquiry will work. One perhaps needs to look at the mechanics of it given that pubic inquiries from time to time take on a life of their own. One has to be aware of that.
If you turn to page 18, you will note another observation, which is the lead-in to the next section. It is the last observation of Lord Bingham before he leaves and Lord Slynn takes over. All the judges agreed and there was a consensus on the need for a public inquiry in Mubarek's case. Paragraph 39, at the end of Lord Bingham's speech, states: "I cannot accept the submission of Mr. Crow [obviously on behalf of the Government] that any further inquiry is unlikely to unearth new and significant facts." He is approaching the same point that Lord Steyn approached, namely, that it is the wrong question. In any event, he then says:
The papers before the House raise questions which any legal representative of the family would properly wish to pursue and the discovery of further new facts of significance may well be probable. [It is no certainty. We say it is very similar in this case and I will come to why there are new facts of significance which may well be probable.] But it is true that there are factual areas - for example, the killing itself, and the cause of death - which have already been fully explored and of which little or no further examination is required. Many of the factual findings made by Mr. Butt [he is the prison examiner] and the CRE [the Commission for Racial Equality] can no doubt be taken as read. It will be very important for the investigator to take a firm grip on the inquiry so as to concentrate the evidence and focus the cross-examination on issues justifying further exploration. Reliance should be placed on written statements and submissions so far as may properly be done at a hearing required to be held in public.
In our submission, at page 4, we have set out the ways in which we say what has happened so far does not satisfy minimum requirements. I will not read them out. They are all there at the top of that page. I have referred to them in one way or another. We say: there was not any power to compel disclosure or attendance of witnesses; it was done in private; everybody attended voluntarily; it was informal; they were not backed up by any legal sanction; it could not make findings with legal consequences; it did not have the benefit of counsel, and so on. There are more but I will leave those. That is just a starting place. That is where we set those out if you need to see where minimum requirements are laid out easily.
What I am turning to now, in the hope that it may be of some assistance to you, is the structure of a public inquiry, which we have set out on pages 6 onwards. If I may just elaborate on this, and, as they say in the vernacular, "cut to the chase", what are the real concerns that you all may have about the possibility of ordering a public inquiry? No doubt they would be: time, expense, resources and so on.
Can I just indicate how the public inquiry can satisfy the need, under the article on which I have already elaborated - I will come to the fruitful aspect of it in a moment - by providing, as it were, a certain mechanism? This is not a prototype or model; it is just intended as a humble suggestion that you might like to take on board because I know you have had many inquiries - I have not been involved with any of the ones here - so you are familiar with how they work.
They work however you want them to work. Therefore, if you were minded to order, or at least recommend, that a public inquiry is set up under the 1921 Act, which we have cited on page 7, that tribunal would, first, as we set out, have "all the powers, rights and privileges as are vested in the High Court". That is extremely important because that is not what Barron had, if I may just call him that for the moment. No doubt the learned justice could perhaps have come back and asked but he does not appear to have done that. He could have been invested with it but it does not appear that he was so invested. The fact is - as a matter of fact - he did not have these powers, rights and privileges which would attach to the tribunal itself, in other words, one is beginning to see what the protections are.
We would submit, obviously, that the parties, not just the families but any other interested parties, some of whom I have already mentioned, would be represented. Plainly, it would be in public. There would be an automatic record. No doubt the public inquiries here are done by live note but in any event, if you are familiar with it, you would not have the problems of people saying "I did not say that" because it all would be there, the public could see it and it would go onto a website. Plainly, there would be the powers of compulsion, as I have indicated. There would be determinations to be made of responsibility and identification. That might lead to punishment in some cases. The punishment, obviously, does not have to be a criminal punishment. There may be other forms of punishment that are necessary. One only has to think about missing files when one considers what other recourse may have to be had.
I do not think the most important thing has ever been done, in the strict sense of laying it down in advance, although I know there has been advice given. You may want to recommend - I keep saying order but you will not make the order - that any public inquiry that has this structure would have a strict timeframe. Again, I hope I am not speaking out of turn but the public may say, "Well, if you cannot do it in - this is an arbitrary figure - one year, it is probably not worth doing" or "at least, we are not prepared to countenance the money spent on it."
Where there has already been, as there was in the Mubarek case, a number of different formats in which a certain amount of information has been gleaned, then what they are really saying here - the "firm hand" point put in paragraph 39 - is that the person who orders and establishes the inquiry as well as the panel - I will come back to the panel in a moment - set a timeframe for it that is publicly recognised. One obvious one is a six month lead-up and a year's worth of hearings.
People may think a longer period is needed and the moment one attempts to put a timeframe on it, there will be complaints. However, in the current climate, there may not be complaints. It focuses the mind wonderfully when one has only a limited time in which to do it. It also has an important repercussion on something I will come to shortly.
Also, one would require either an interim report within that timeframe or require that it be monitored. Thus, for example, a government that sets up an inquiry may wish to have a liaison officer present to ensure that matters are progressing and that there are no undue delays and so on for reasons that could be overcome in another way. As the sub-committee listens it may think the next point is about me, but never mind. Most important of all is that a time limit is put on the lawyers as to how long they can speak. This is done in Strasbourg and elsewhere; people may be surprised to learn that I am very happy to have a time constraint. I have set myself one for today but I may just over-run. If one cannot do it in an hour, do not do it at all.
Sometimes it is not possible, but where one has to conduct tribunals of inquiry and trials for public confidence reasons, one must be able to impose limits. Again, it is arbitrary. The Hutton inquiry did that, and I make no observations about the Hutton inquiry other than that there was an attempt to ensure that those who represented parties were limited in the amount of time they could take. These mechanisms can be brought into play to ensure tight control of an effective investigation. The investigation itself would need resources and person power.
The panel, which I am about to come to, would need its own lawyers in order to present arguments on behalf of the inquiry. That is very common and one would probably have more than one counsel available to do that, plus other lawyers and investigators. Some resources would be needed, but the prime task in the first six months would be to assemble the material already on file. It is the material not on file that one has to come to.
I have made a stab at terms of reference, but I will leave that for the moment. Terms of reference obviously should be simple and drafted broadly. If the committee would like examples of terms of reference I can give them later. They should be simple and wide to enable everything that people are concerned about to be taken into account in terms of the period before the bombings, the bombings themselves and the period after the bombings. It is all very obvious, set in a chronological way.
I would suggest for the sub-committee's consideration that the panel should comprise more than one person. I know that has been submitted to the sub-committee already in terms of an international panel. I do not intend this to be a reflection either on the Irish or English Judiciary, but it would be better if neither of those two jurisdictions were in the chair of the panel because of the perception that justice be seen to be done, another important principle of natural justice. It is not necessarily that they could not be trusted to do the job because they probably could, but the point is whether the perception is right.
For the sub-committee's consideration I suggest a panel of three, the chair of which is neither Irish nor English, with the other two members consisting of one English and one Irish person. Whether they are judges, lawyers or representatives of other areas is another matter which I do not need to go into, but I suggest that the person who sits in the chair should come from outside these jurisdictions. An obvious candidate, which would be particularly interesting in the current climate, would be someone from the United States, but there are other jurisdictions in which there is a history of reputable judicial decision making and chairing of tribunals. There are many such countries in the Commonwealth and, as the sub-committee will know, there are two judges from the Commonwealth involved in the Saville inquiry. In addition, there is South Africa, and there are many European judges who might wish to sit in the middle. It is just a proposition.
Although I am not suggesting it should be the test, one of the most important aspects of it all plainly I will bring in at the moment. The sub-committee has suggested that 68,000 documents exist in a room somewhere across the Border. We have obtained letters which contain undertakings from British Government Departments that they will not disappear or destroy the material they have. They have it available to be seen. That is interesting. It has not been seen by the sub-committee or me. However, members have, on a number of occasions, asked the perfectly proper question of whether a public inquiry, if established, will see the material. The answer to that question is, yes, it will. It will overcome the problems described by Mr. Justice Barron in his report and to the sub-committee. Essentially, he has conceded. The words he used in his inquiry, his commission, and in the statement to the sub-committee on 10 December last were that it was "of limited scope." That observation in his statement plus what he said about the difficulties leads us to believe he has been led a merry dance by the English authorities who have refused to come here and explain their conduct and to explain what is available and to allow people to see it. How does one allow an inquiry, such as the one recommended, to see the material they claim is so sensitive that Mr. Justice Barron could not be trusted to see or pass on? He was not even allowed to quote the letter without first seeking authority to do so. We say that is disgraceful if we are leading towards accountability and transparency, principles that seem to have disappeared here.
This has worked and for reasons which members will understand, I am not in a position to make comments about any case in which I am involved, let alone on the Saville inquiry. This is not a comment on the inquiry, it is merely an indication and description of the procedure used. It is not the monopoly of the Saville inquiry, it has been used in other inquiries. We submit it could happen here. It is straightforward but is restricted plainly from the public point of view. What happens is that, if there is sensitive material which a Government agency does not want placed in the public domain, for a number of obvious reasons such as the identity of an informant or the modus operandi of a Government agency as to how it gets its information or the security services and how it operates - one understands all that as did Mr. Justice Barron but he could not get around it but a public inquiry can get around it - then there is a public interest immunity hearing, PII, in which the arguments for and against the public debate of potential material is discussed. That is what has happened in the public inquiries I am familiar with.
Members may ask how one discusses material one cannot see. Interestingly, one can discuss it in principle. If the party concerned, let us say MI5 or MI6, has material it is not willing to disclose to the public, one argues in principle whether the material it might have could reflect upon other matters - it is easy and straightforward to see how it might reflect here and I will come to that later - and it is then placed before counsel to the inquiry and the inquiry itself but not anyone else. They listen to the submissions on whether it should go public and, normally, if there is a genuine objection, it is heard by the panel. The panel and counsel see it and then take a decision on whether they should disclose it. Often if they think there is a legitimate basis, for example, if the right to life is engaged and they must protect this right, they do not disclose it but give a decision in principle which becomes part of their deliberations. When they come to finally reach a determination, which Mr. Justice Barron could not but an inquiry could, they would be able to refer to and draw upon the pool of material which none of us on this side of the table would have seen but the members would if they were on the panel.
There are reservations about this procedure which have been expressed on many occasions but it is increasingly being used in the English courts. There are many occasions within the criminal arena where there are ex parte hearings when, for example, I would not even know they were happening. Of course, I would know in a public inquiry. The resource or vehicle for enabling a tribunal to deal with this problem that has arisen in this case can be overcome.
So members say, "Well, all right, that is how we could do it. We could look at it. How do we get it in order to look at it?" That is the next point. There is a way of doing this and we say that it gives rise to some interesting cross-Border, we hope, non-problems. We say there are ways and means, as they say in films, of making one speak. The ways and means in this particular example are set out on pages 7 and 8 of our submissions to the sub-committee.
It is interesting that the 1921 Act obviously originally applied not only here, but also in the rest of the United Kingdom so the United Kingdom will be very familiar with this statute. What the statute enables, as well as a further one which is set out there - the English Evidence (Proceedings in Other Jurisdictions) Act 1975 - is that an inquiry here could send out what is sometimes called a commission rogatoire, in other words, letters of request to the British Government. Whereas Barron sent, as the sub-committee has seen, a whole chronology of letters, most of which went unanswered in the sense that they did not provide the material, if it was a formal inquiry with a formal letter of request requiring answers to certain questions, and documents to back up the answers to the certain questions, it places the other Government, in this case the British Government, in an extremely difficult position. First of all, psychologically, never mind the legal obligations of answering the questions or letters of request, the British Government, never mind coming to a committee because it has obviously turned its back on that, will find it much more difficult in a public inquiry, which has powers, to say: “No, we are not even going to answer the questions; we are not going to provide the documentation, we think you need but a summary of it.” The latter is what happened in the Barron case.
Psychologically, politically and diplomatically, the British would find it extremely difficult to say "We will not answer these letters of request." If they were to do so, in other words, they are prepared to run the gamut of adverse opinion when we are supposed to be working towards a situation in which states co-operate in relation to acts of terrorism, the non-co-operation could be a finding for the panel. In other words, as sometimes happens in criminal cases with somebody staying silent, etc, adverse inferences can be drawn. If somebody stays silent in the face of a commission rogatoire, as I am prepared to call it because that is the usual phrase, then the panel would be entitled to at least take account of it in that it may draw an adverse inference about non-compliance and non-provision. As Mr. Justice Barron states in his report, where he has come across refusal, he is inclined to believe that the refusal is borne out of a self-interest that needs to be protected. In other words, an interest that they do not want to disclose. All of that can be drawn. That is the second level at which it is difficult.
There is a third level which the inquiry may not want to readily want to embark upon - one hopes it does not have to have recourse to that - and we touch upon it on the last page. We would submit that if the British Government refused to co-operate in the face of a letter of request, they themselves could be held to be in breach of the European convention in relation to the very same article, Article 2, because they are not providing information and materials which are necessary for the protection of life or rather the investigation that you are carrying out or would be carrying out. Of course, I cannot predict. It is novel ground but it might provide a basis for judicially reviewing a decision by an English Government agency not to answer the letters of request.
This is where - I am looking at my timeframe, never mind the timeframe I have set for the inquiry - the timeframe set on an inquiry could be important because one of the first functions, I would submit, for counsel to a public inquiry of this kind would be to say, "What do I need that I have not got?" The answer at the top of the league comes "material within the 68,000" - obviously, it is not 68,000 files. It is obvious what it is relevant to.
Mr. Justice Barron told you himself only last week that the key strand in his report - which I personally thought was a key strand in it - is that the English military authorities were claiming that they had locked up the bombers, at least two of them. Who are they? I am not going to mention any names as I am being careful as you have asked me to be. I am sorry. I am diverting slightly for a moment because of the importance of all of this. The point Mr. Justice Barron makes to you is that they are known. Last week he admitted to you that he had made an assumption that they were the names of people that had been provided to the RUC via another route, through the officer called Kelly and Browne and so on. They may be, they may not, but what he was not able to say to you was, "I do not know whether the names of the people that the British claim they had were the same as the names that came through the RUC."
What is the importance of this? Underneath it, the British were claiming to the Irish authorities, including the Taoiseach, that it was based on good intelligence, so what do you need? "Well, what was that good intelligence?" "Very good intelligence," it is said in the meeting from which we have a quotation in the report. What is this "very good intelligence"? Do you know? I do not know. We do not even know - I do not know whether you do - what is in all these letters that Mr. Justice Barron sent off to the British in order to try to extract the material. We do not know the questions he asked. We know little snippets here and there. You see immediately how, in practice, the exercise which has been undertaken right at the core of the perpetration of this has just not satisfied. That good intelligence must be possible to identify within the documentation.
The reason the good intelligence is important is that you not only get the names of the possible perpetrators, you get a chain of causation which goes back through, "How did they get the good information? Who knew these perpetrators? Did they have the information before the bombs even went off?" I know they are denying this but are we happy to accept denials, particularly in this day and age, from politicians? Are we necessarily going to accept this just at that level without seeing the documentation, because there are misunderstandings, as has been readily disclosed in another arena recently? There are misunderstandings. People do not necessarily understand all the context, which was Mr. Justice Barron's point.
Before I return to the question of getting answers in the timeframe, I add a footnote. Who was the person who was receiving this message? The Taoiseach, Liam Cosgrave, received that information. There was good intelligence that two people at least had been arrested. I merely asked the question: Has Liam Cosgrave provided any material for the Barron commission? I do not think so. When he was asked in the "Hidden Hand" documentary about this point, referred to at the back of the Barron report, it is interesting that he said nothing. The report stated on page 47: "We asked former Irish Prime Minister Cosgrave what pressure he put on the British authorities to trace the bombers, and if he knew his police force had a list of suspects. He declined to answer." I am not making any imputation, but he is someone else who may have had material observations to make on the missing documentation.
There is a long chain, but one then gets into the question of collusion, which must be carefully defined. The Minister for Justice, Equality and Law Reform stated that there may not necessarily have been collusion at the very top - but it is not collusion at all if one has members of the British State such as UDR and RUC members taking part in the preparation of the bombs on the farm. That is not collusion, but involvement and perpetration. The conclusion Mr. Justice Barron comes to is remarkable, and cannot be left hanging in the air. That is conclusion number 6, page 287: "It is likely that the farm of James Mitchell [at Glenanne] played a significant part in the preparation for the attacks. It is also likely that members of the UDR and RUC either participated in or were aware of those preparations." This needs further investigation, because Mr. Justice Barron has put it very tentatively, like many of his conclusions, and I appreciate the sub-committee may want to address the question of the standard of proof; but the Justice has put his conclusion as likely. If it is likely that the UDR and RUC either participated or were aware of the bomb preparation, the British State had advance notice at least about the bombs being prepared and, one suspects, would have known more, although not necessarily at the higher echelons. That is not the question - the article does not say it is only people at the top; it does not make that kind of distinction.
A request to the British Government, which would lead to an audit trail back not only to those responsible on the front line, but to those on the back row responsible for what went on, must therefore now go immediately from any public inquiry set up, and must have a timeframe. The request would be framed in a simple manner to the effect that because of our own constraints, we have only six months. The simple question would be: "Are you prepared to let us see the originals of all the documents you have so far refused?" It would not take six months to answer that question. One can give the British authorities a time in which to answer, and if they do not do so, one can begin judicial proceedings in England in order to challenge their decision.
Those are the mechanics of how the procedure can work - something that has not occurred yet. There has been no form of moral, let alone legal, compulsion on producing the goods, so to speak. In terms of the need to satisfy the convention, and the mechanics of setting one up, it is all perfectly possible and is not going to lead to some bottomless pit either in terms of finances or other legal resources, but will restore public confidence in the mechanism of providing justice for those denied it for so long.
The committee touched on the standard of proof, and this is the last procedural matter I will deal with. I am not claiming expertise in Irish inquiries, and what I say pertains to English inquiries, but standards of proof must normally be set by an inquiry itself. I trust I am giving a summary of Mr. Justice Barron's reaction when I say that because of people's reputations and being fair to people and so on, he felt he would draw only reasonable inferences. That, if I may say so, is a very reasonable approach. However, for the purposes of an inquiry where determinations will be made, what tends to happen, and I can only suggest this is what tends to happen, is that where there is a criminal allegation, the inquiry would want to have satisfaction to a criminal standard. You may think that is fair to the person against whom the allegation is made.
On other matters, however, if the documentation is missing because it has been deliberately destroyed, that may involve a criminal allegation but if it does not involve a criminal allegation, usually the civil standard of proof is adhered to, namely, on the balance of probabilities. Although I have seen the term "a preponderance of evidence", that is a rather loose term. The phrase that is usually understood, "more likely than not", incorporates the standard that might be applicable.
What is important, and has not always happened, is that the inquiry would have to make clear at the beginning that is its standard, so everybody knew that. The problem in some inquiries is that they have not announced it until the end, and then people said, "If I knew you were going to go to that standard I would have made some more questions or a few more inquiries". Those are the substantive and procedural rights under Article 2. That is the mechanism, how it could work, public interest immunity, time and efficiency and so on of the tribunal.
If I may touch upon - I can develop it in answer to questions - the other area, namely, the merits and looking at where one can go from here. I have already touched on one particular area but it is one that is important for the committee's consideration. It seems that at the moment there are a number of unresolved problems as a result of Barron, unresolved in the sense that the public would need to believe they were capable of resolution within a public inquiry.
I will leave aside procedural problems that have arisen but it appears to me that there are three areas; I will not deal with all three but just a couple of them. There is the forensic science area and the delays that were occasioned in the first place, the analysis of the photographs, the opinion of Nigel Wylde and so on. It is clear there is a major division of opinion between Nigel Wylde and some other experts and Mr. Justice Barron, who was fair enough to concede to the committee that he was not an expert in this field.
What would happen in a public inquiry, as has happened, is that one has recourse to the best experts available in the field to allow one to come not just to some kind of reasonable conclusion but one on the balance of probabilities that it was ANFO that was only available to the PIRA and therefore came from captured stocks and so on. I do not go into all of that but that is an area which we say has not been properly resolved yet. Mr. Justice Barron has made a formidable effort at doing it but it could not be expected in the time that he would be able to do that whereas if the facilities are available to do it, it is plainly a very important issue.
The question that arises in terms of the British, if I may put it that way, response to information is to be seen in the report at page 274 where Mr. Justice Barron makes certain assumptions about the information and the two persons, to which I have already referred. However, that is just where he makes the assumptions. What has happened here refers back to pages 211 and 212 where the meeting I have referred to is set out in a little detail. This is the meeting which took place on 1 June and then meetings with the Taoiseach thereafter. That is where the points I have already made come from, namely, very good intelligence and at least two people, but as I have already indicated, Mr. Justice Barron in a sense allied the two. It is an assumption he has made that they are talking about the same people. However, it is plain that, effectively, not much has been obtained and this is why we say there is much to obtain. I have the evidence from Mr. Justice Barron himself on this particular topic. It is important to see what he actually said to the sub-committee about this. I have it in hard copy form and it is on page 5. He indicates the two strands that I have already mentioned and also the pieces of information in the Garda reports and so on. He states on page 6 of the version I have:
We have interpreted that in the report as saying that that was the substance of the information [that is the question of the two] 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... That is one strand on which we based a lot of conclusions...
Therefore, it is a very important strand in his thinking. Effectively, when he was asked further about these, this is what he has described and why we say it is piecemeal up to now:
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.
That is a pretty good summary of the paucity of what was being provided.
On the following page 11, he said this, which is pretty remarkable: "We got a lot of information then. Frankly, I do not think we really got any information in the 1974 period." What has been going on in the correspondence between the British Government and Mr. Justice Barron? Effectively, we say he has been provided with nothing, either in the summary form, let alone the original documents. It is in that context that he goes on to deal with why it was necessary for him to see original documents. The members may have had experience - I certainly have - that when one begins to ask for original documents, one finds all sorts of things that have been written in different ink, added notes, things on the back of a document where the front has only been photocopied and so on.
Originals are very important as well as seeing the context in which that original has been produced. To merely be beholden to the British saying, "We tell you there is nothing", is far from acceptable in terms of winning public confidence. It is perfectly clear, in the way he spells it out in his report from time to time, that he believes, as do others, that there is much more that he should have been provided with that would have assisted him in his conclusions. Effectively, he summarised the whole of that in page 3 of the statement he made to the sub-committee.
Turning from the material that is not missing, but is available and has not been provided, to another of the main headings, in other words, forensic evidence and material that the British authorities may have - remembering the perpetrators came from and the planning and the preparation all took place within the British jurisdiction. Plainly, documentation they have should be seen and assessed by a public tribunal. There are many missing documents in so far as the Irish Government is concerned. The sub-committee knows what they are but they are all summarised on pages 12 and 13 of the report. What is remarkable, and the sub-committee put it to Mr. Justice Barron, is that security files at the Garda headquarters and similar files in relation to the Department of Justice, Equality and Law Reform have gone missing. One member - please forgive me, I cannot remember which one - asked was this a coincidence. Of course, it could be a coincidence. This form of inquiry, in other words, what exactly has happened here, is extremely important to get to the bottom of it because if it is purely an accident and purely a coincidence, then it is as Mr. O'Neill has put it - he has not read it out today - if the documents were missing when the Irish Government was challenging the families' request for disclosure, why did nobody say at the time: "Sorry, do not worry about the action, we do not have the files anyway?" That is his point.
There is a question here and the questions have not been asked. Mr. Justice Barron effectively admits he has not asked the questions because I think he thinks it was not really part of his necessary remit, which was to pursue what I might call an audit trail. The audit trail is important in order, as the cases say on Article 2, to allay public fears if there is potential malpractice.
The questions you ask - I am sorry, I am using a hard copy - come at page 38, so it is very recent. If you read the report, you will discover that there is no explanation ever given. Mr. Justice Barron is asked and he says, "All I was told was they were not available, they cannot find them." I think if you were involved in something, to be told that would not be an acceptable answer when it is central. He has already accepted, because you have asked the question on the previous page, page 38, that it is "an important file, of course". Of course, it is an important file because we are back to whether at least the two interned by the British on good intelligence were the same as people who had information through the RUC, Garda, cross-Border contacts and all the rest of it. Were they the same? What was the intelligence? What were the connections etc?
The security assessments on the intelligence done by the Garda and the Department of Justice, Equality and Law Reform would all be in those files. What Mr. Justice Barron is saying is they are not there but they must have been. One of the obvious questions to be asked in a public inquiry of the people who still exist - here Mr. Justice Barron agreed with you in that he had not done this, he had not got them all in, all the civil servants who have worked in the Department - is, first of all, what is the system? When were they last seen? Somebody must know. When were they last seen and where were they when the action was being taken by the relatives for disclosure? Somebody must know. It is not very long ago. We are not dealing with 30 years ago. We are dealing within the last decade, effectively. Where were these files?
The questions are obvious. A schoolboy could, as it were, draft the questions. The answers may be important in determining whether it is just a coincidence that the relevant files are missing, which would have provided a partnership with all the material that is, we assume, being kept safely, as we have been told, by the British authorities. The admissions he has made, effectively, about the two sets of missing files - the missing Garda and Department of Justice, Equality and Law Reform files - have not been satisfactorily investigated by him, although he says, as far as the Garda is concerned, he is sure there would have been a detective sergeant who would have been in charge of it all and so on.
It is remarkable. You may think that they are missing - one cannot go further than that at the moment. In other words, it is a negative point until you have got the material that is available or at least got a refusal which is a finding in itself - hopefully it would not be a refusal - and you have got an explanation, in other words, an explanation here would be on the civil burden of proof, more likely than not. As Ed said earlier today, although not in public, we have had public statements recently indicating - I think Mr. Justice Keating is the citation on 29 December - that there has been a suggestion of deliberate destruction here.
