JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS (Sub-Committee on the Barron Report) díospóireacht -
Thursday, 16 Feb 2006

Public Hearings on the Barron Report.

Chairman

At its last meeting the sub-committee heard testimony from the Dublin city coroner, Dr. Brian Farrell, and former detective sergeant, Mr. Owen Corrigan. The transcripts of our meetings to date are available on the Oireachtas website through the parliamentary debates menu option.

I welcome Mr. Justice Henry Barron, author of the report of the Independent Commission of Inquiry into the Murder of Seamus Ludlow, and Mr. Éanna Hickey, BL. I thank Mr. Justice Barron for helping the sub-committee in its consideration of the report.

The Dáil and Seanad have asked the Joint Committee on Justice, Equality, Defence and Women's Rights to consider the Ludlow report and this sub-committee has been formed to carry out that function. Mr. Justice Barron has agreed to answer as best he can any questions the sub-committee might raise regarding its consideration of the report. Would Mr. Justice Barron like to make an initial comment?

Mr. Justice Henry Barron

Not really, because we were dealing with a very limited issue and we set it out in the report as well as we can. Questions will be put and I prefer to wait until specific considerations are raised.

Chairman

The principal questioners are Deputy McGrath and Senator Jim Walsh. Other members may have supplementary questions.

Deputy F. McGrath

I welcome Mr. Justice Barron and Mr. Hickey. I commend them on their work on the independent commission into the murder of Seamus Ludlow. Did Mr. Justice Barron find the case complex? What difficulties did the inquiry present?

Mr. Justice Barron

We dealt with it in the same way as we dealt with the other matters we reported on. Essentially, the information came from the Garda and we had to analyse that and see where that would bring us. We spoke to the family on a number of occasions and we sought information from the then RUC but, apart from the information it supplied and which we set out regarding the 1977 to 1979 period, that was as much as we got.

The Garda was able to get a file the police force in Northern Ireland had regarding the arrests in 1998. We got that information and it is all set out in the report. It is like everything else. One gets as much information as one can and one goes on until one feels the lines of inquiry are exhausted. Unlike the other matters we dealt with, the issue was limited.

Deputy F. McGrath

Mr. Justice Barron referred to the interviews with the Ludlow and Sharkey families, which are also mentioned in page 6 of the report. How many times did he meet the family? What format did the interviews take?

Mr. Justice Barron

They were in our office in Government Buildings or in the offices of their solicitor in Dundalk. On one occasion, we went back with the family for a cup of tea. That was the only time we saw them outside of one or other of the two places I indicated.

Deputy F. McGrath

Therefore, there were two meetings.

Mr. Justice Barron

There was more than that. We saw them in Dublin at least twice and in Dundalk at least twice. I may be wrong about that and I may have seen them more often.

Deputy F. McGrath

Is Mr. Justice Barron satisfied he had enough time to get their view on the issue?

Mr. Justice Barron

Yes, we were satisfied that they gave us all the information they had.

Deputy F. McGrath

Mr. Justice Barron states in the report that he was satisfied with the co-operation of the Garda, the Department of Justice, Equality and Law Reform and other Departments. Did they provide 100% co-operation?

Mr. Justice Barron

It was 100%. The problem was that the Department of Justice, Equality and Law Reform did not have a file for the relevant period. Its file essentially started when the matter entered the public domain.

Deputy F. McGrath

I refer to page 18 of the report, which concerns the issue of the similarity between Seamus Ludlow and an alleged top IRA marksman and the tattoo issue. Mr. Justice Barron discounted the allegations, stating they were not credible. Will he elaborate on the issue of the sleeves and the rolling up of the jacket?

Mr. Justice Barron

The question of tattoo marks on the arms must have concerned those who murdered him because he was shot with his jacket and overcoat on, yet when he was found, both had been taken off. These are only inferences from that fact.

Deputy F. McGrath

Did Mr. Justice Barron use the phrase, "The allegations are not credible" on page 18? My interpretation is that these people were looking for a particular person. It was more organised than the impression given.

Mr. Justice Barron

I am not certain if it was No. 2 or No. 4, but I think it was No. 4 who said that. They were looking for an address of a particular individual but, in the heel of the hunt, there was nothing to support it. There is no doubt that somebody took the coat and overcoat off him after he was killed and that might lead to an inference.

Deputy F. McGrath

I refer to page 23 and the issue of the .38 Smith and Wesson. Is Mr. Justice Barron satisfied the same weapon did not kill Mr. Ludlow and Mr. Spratt at Darragh Road, Comber, on 2 June 1976?

Mr. Justice Barron

Yes, it seems pretty clear that it was not the same gun.

Deputy F. McGrath

A reference on page 60 concerns the role of the local politician, Mr. McGahon. Mr. Justice Barron states, "Perhaps he was reckless or naive".

Mr. Justice Barron

The Garda superintendent used the phrase, not the authors of the report.

Deputy F. McGrath

Does Mr. Justice Barron accept this was a mild criticism considering the allegations made against that innocent man? Should a stronger statement have been included?

Chairman

I ask the Deputy to be careful regarding the words he uses about this issue and the phrases he quotes from the report regarding particular individuals. He should tone down anything he might have to say regarding Mr. McGahon.

Deputy F. McGrath

I am only trying to dig deeper into the issue raised on page 60. I am conscious of people making outlandish statements. Politicians should be more respectful of due process but that is a broader debate.

I will move on, therefore, to page 83, which deals with the cause of the murder. The implication is that it was "random sectarian killing of a blameless Catholic civilian" by loyalist extremists. Given that members of the security forces were among the suspects, should there not have been a greater emphasis on the issue of collusion?

Mr. Justice Barron

With regard to collusion, we make the point when dealing with the questioning of Kevin Donegan that the army may well have known who was responsible.

Deputy F. McGrath

That is mentioned on page 87 or 88. I refer to page 84 and the role of the Deputy Commissioner, Laurence Wren, from C3. Mr. Justice Barron uses the phrase "most probable" and refers to the absence of files.

Chairman

Where is that reference?

Deputy F. McGrath

It is page 84, the third paragraph from the bottom. It states:

The Inquiry believes it most probable that the decision was made by Deputy Commissioner Laurence Wren (C3). Before doing so, it is likely that he would have discussed the matter with other senior Gardaí and possibly senior officials from the Department of Justice. However, the absence of files means this cannot be confirmed.

Will Mr. Justice Barron elaborate on the phrases "absence of files" and "most probable"?

Mr. Justice Barron

If there had been a file, it is reasonable to expect that written communications between C3 and the Department were prepared on the file. If there were such written communications, one would have known whether they related to this matter and how they related to it. From the body of the report, the Deputy will see there was very full communication between C3 and the Department, or some of its senior officials. Therefore, all we say there picks up on what we have said generally with regard to that relationship.

Deputy F. McGrath

I move on to page 85 and the issue of the non-attendance of the Ludlow family at the inquest. Mr. Justice Barron says there was a major mistake in this and the family should have been notified in a professional and impartial way. Is that right?

Mr. Justice Barron

I think so. It is only reasonable that as many members as possible of the family of somebody who is murdered in such circumstances are told about it.

Deputy F. McGrath

We had the coroner in here recently and he accepted our recommendation — I know we must deal with the issue of regulation — that the coroner should have a role of informing the family in writing. This is an area from which we have all learned something.

The second paragraph of page 87 mentions that there were no written records relating to the Kevin Donegan incident. Will Mr. Justice Barron expand on that? He does not seem to accept this and makes a serious criticism with regard to it. Does he not accept there were no files?

Mr. Justice Barron

We have found that both our Army and, even with the information we have received, the British army are meticulous in their records. It is very strange that if there was an official visit, as there obviously was, there would not be a record of it.

Deputy F. McGrath

On page 88 Mr. Justice Barron uses the words "remote possibility" and says "It was generally believed that loyalist paramilitaries rarely left those areas of Northern Ireland which they knew well". Will he expand on that? We had previously had bombs in Dublin, Monaghan and Dundalk. Why, therefore, was it "generally believed" that these people would not go outside their patch? Does that stand up based on the evidence of previous incidents?

Mr. Justice Barron

They went outside their patch to Dublin and Monaghan on 17 May and to do various bombings in Swanlinbar, Blacklion and Clones. However, the general impression we were given by witnesses was that the sort of people who did those things were fearful of going across the Border because they were going outside the area of activity they knew. It may sound slightly contradictory since we know they did it, but people seemed to think a major incursion was something they were unlikely to carry out. They said that in the face of the fact that they had been doing it.

Deputy F. McGrath

Can Mr. Justice Barron identify or find any conflicts about which we should be concerned with regard to the murder of Seamus Ludlow?

Mr. Justice Barron

What type of conflict?

Deputy F. McGrath

Conflicts that emerged between different submissions and witnesses or was Mr. Justice Barron reasonably satisfied that he was able to make an objective assessment after listening to the different groups and submissions?

Mr. Justice Barron

I think so. I do not think we got a second theory. It all boiled down to the fact that four people came south. Evidence suggested it was not planned, yet one of the witnesses, number 4, says it was planned in the sense that they came down to find somebody's address. There was no major conflict of evidence about that.

Deputy F. McGrath

Can Mr. Justice Barron advise the committee of any other avenues it could use to get at the truth in an effort to develop this matter further?

Mr. Justice Barron

The problem is that it was an awful long time ago. The evidence seemed to suggest that four men were in public bars within the State. If at the time, perhaps, photographs had been obtained of these people and shown to various people, they may have identified them.

Senator J. Walsh

I thank Mr. Justice Barron and Mr. Hickey for attending the committee. I echo the sentiments expressed by Deputy Finian McGrath. Having listened to and gone through the evidence of various witnesses, it is difficult to do anything other than agree with the conclusions arrived at by the inquiry.

There seems to be a common thread running through all the investigations that what appeared to be good leads were not followed up. Has Mr. Justice Barron formed any opinion as to why that was the case?

Mr. Justice Barron

We have said, certainly in the first report, that although quite an amount of information was received by the Garda from the police force in Northern Ireland, it never received any information which would amount to evidence which could be used in a court. That is a generality which I think is correct and which could apply to this case.

Senator J. Walsh

Mr. Justice Barron's previous reports and this one identify the fact that material information, which on the face of it seemed quite valuable as evidence, was not processed to a point that might have brought the investigation to a stage where a prosecution could have been underpinned.

Mr. Justice Barron

We have indicated why nothing was done in 1979. When it came to 1988, the Garda did everything it could at that stage. I have referred to the possibility of checking whether anybody had seen the men within the State. It was joint co-operation between the two forces that resulted in the arrests and heavy questioning of the four men. There were up to 20 sessions of questioning with each of them. That was all they could do at that stage.

Senator J. Walsh

That was 22 years——

Mr. Justice Barron

That is the point.

Senator J. Walsh

Mr. Justice Barron mentioned that the investigation followed normal patterns. In 1976, for example, the investigation was wound down quickly and the gardaí who were actively involved in it went on to other cases. The case remained open, but there was no active pursuit of evidence. An obvious line of inquiry at that stage would have been for the Garda to make direct communication with the RUC to ascertain whether it had any information on the crime. That was not done.

In 1979, when gardaí came on a visit to Belfast seeking information on the Dundalk bombing, a visit that had nothing to do with the Ludlow murder, they got little co-operation from the RUC with regard to leads they wished to pursue on the bombing, but got information on the four suspects that was not pursued. With reference to the other reports, Mr. Justice Barron mentioned that significant leads remained on file and were not pursued. There seems to be a common thread running through all the investigations undertaken by Mr. Justice Barron. I acknowledge the difficulty posed by the passage of time in discovering the truth. Has Mr. Justice Barron formed an opinion?

Mr. Justice Barron

I do not want to pick the Senator up — if I may put it that way — on fact. In the report, we suggest that the information was obtained directly from the RUC and not at that meeting but in a letter.

Senator J. Walsh

Is Mr. Justice Barron referring to the letter of 30 January?

Mr. Justice Barron

That is so. There is also a communication between the Garda and the RUC with regard to the possibility of an informer which we totally discounted. That was the relationship. Mr. Hickey has drawn my attention to page 18 of the report which states:

Efforts were made by gardaí to get the names of potential suspects for the shooting from the RUC. The investigation report stated:

Many enquiries have been made through the channels of the RUC in an effort to elicit from them who they thought might be in a position to help us in our enquiries, but whereas we have received the usual co-operation, it must be appreciated that they have neither the time nor the manpower to concern themselves too fully with the problems prevailing on our side, when they are so fully taken up with events up North. Nevertheless, contact is being maintained, and I feel that if anything of a tangible nature should arise, results will be made known to us.

It is fair to say that there was no indication at that point that anybody from the North was responsible. It could equally have been somebody from down here. That is the difficulty. I am not certain at this stage to what extent we referred to the report. However, in the report, they had five or six different possibilities, none of which were taken in a firm sense; they were just possibilities which the report threw out, which to my mind at least, showed they were doing their best and they really had no leads. That is the reality of it. They got the lead, obviously——

Senator J. Walsh

In 1979.

Mr. Justice Barron

Yes, 1979, maybe before.

Senator J. Walsh

The letter of 30 January 1979 from the RUC to C3 was probably the first indication of the names of the suspects.

Mr. Justice Barron

That was the first indication.

Senator J. Walsh

What about the meeting of 15 February?

Mr. Justice Barron

The reason I am stumbling over the dates is that the Garda was told in 1979 but the RUC knew quite a bit before that. This is the reason I am not certain. I think it was 1977 when the RUC found out.

Senator J. Walsh

Mr. Justice Barron's report draws the conclusion that the fears regarding reciprocal arrangements being requested by the RUC was a factor in the investigation not being pursued.

Mr. Justice Barron

It seems that was a major factor for the Army.

Senator J. Walsh

Taking into account the other investigations and inquiries Mr. Justice Barron has carried out, this inquiry seems to have given a much clearer picture of the interaction between the Garda and the Department. Witnesses have described a number of daily contacts and there was close contact with senior officials of the then Department of Justice. Has Mr. Justice Barron been able to ascertain what would have been the results of those discussions? It is obvious that there would have been a clear understanding of the wishes and policies of the Department. To what extent did that influence the actions or inaction of the Garda?

Mr. Justice Barron

The report has drawn the conclusion that if there was not a policy, it was certainly a perception of the Garda that there was such a policy. In the first report we referred to the fact there was daily communication by Garda personnel coming to the Department with information, perhaps even more than once a day. There was a very close relationship between them. At that time or shortly before, the Commissioner had been seconded from the Department where he had been an assistant secretary. Therefore, in the nature of things, they were very close.

As I set out in the report, I understand when anything of that nature came to C3, it was automatically sent on to the Department.

Senator J. Walsh

The sub-committee can formulate opinions from what it has heard. Has Mr. Justice Barron any more definitive information as a result of his inquiries?

The gardaí and departmental officials from whom the sub-committee has heard were very careful to state that in no circumstances would they interfere in an investigation and we must accept that. However, if I were a senior Garda officer in constant communication with the Department of Justice, I would be aware of the latter's attitude and its wishes and policy regarding many of these reciprocal arrangements. This information can have a significant influence on decisions taken by such a Garda officer with regard to pursuing investigations in a general way.

Mr. Justice Barron

No. What we set out to do in this and other reports is to set down the information that we obtained and indicate our own conclusions on that information. It is open to anyone else to draw other conclusions from it.

Senator J. Walsh

Mr. Justice Barron may not be aware that Mr. Ed Moloney appeared before the sub-committee.

Mr. Justice Barron

I am not aware of that.

Senator J. Walsh

He subsequently wrote to the sub-committee on 9 February and made an interesting point. He stated that the point had been made that the Garda leadership was unwilling to send officers to the North in 1979 for fear of facilitating reciprocal arrangements for the RUC. He also stated that intelligence relating to the Ludlow killers was passed on in January 1979 but the security crisis that led to increased British demands did not start until 1 August 1979, as a result of other murders — I think the Nairac case refers — that occurred. Has Mr. Justice Barron a view on this?

Mr. Justice Barron

No, I have not.

Senator J. Walsh

With regard to the conflict of evidence between witnesses, one must appreciate that the passage of time has an influence on recall. The view of gardaí at local level was that these issues should be pursued. At a higher level within the Garda — Mr. Wren was particularly strong on this — it was stated that it was not possible to travel to the North to conduct interviews, even though there were instances and examples of this happening. Mr. Wren underpinned this policy by referring to the 1953 directive but none of the other gardaí were aware of it. This seems to be crucial to how the investigation was conducted. Mr. Justice Barron has reached a conclusion on this matter. Does he have a view that the powers of compellability and the giving of sworn evidence is a serious shortcoming in this inquiry?

Mr. Justice Barron

I do not think so. The people we spoke to seemed willing to tell us what they knew. It is obvious we were not given the full picture by one or more people but, generally speaking, we were given the full picture. In so far as going north was concerned, the Garda went north in the case of the Boyce and Porter murder on 1 January 1971. They went north in 1973 when a member of the UDA blew himself up in a pub somewhere in County Donegal. The Garda was given firm information that the authorities in the North did not want gardaí going north. I have a feeling that had a bearing on anything that happened after August 1973.

Senator J. Walsh

That would probably have been contradicted by a number of the Garda witnesses working specifically in the Border region, who stated to us that they had good relations with their counterparts in the RUC, whom they found to be co-operative, perhaps on a selective basis. The distinction was made between interviewing suspects and gathering information. However, gathering information was done on a case-by-case basis.

Mr. Justice Barron

There is no doubt about it, they told us that co-operation in certain circumstances was very good and that the best co-operation was when they went one-to-one.

Senator J. Walsh

As also happened in the other inquiry, a detective sergeant told us that there was apprehension within sections of the Garda when going north because of personal risk to themselves. Does Mr. Justice Barron have any views in that regard? Was this another factor in investigations not being pursued?

Mr. Justice Barron

I mentioned this as a possibility and I was told it was not correct. I cannot put it any firmer than that. At this remove, it would be unlikely for anybody to admit that was a cause. From what I saw of individual gardaí, I do not believe it would have been a cause.

Senator J. Walsh

The report mentions that while the Garda Síochána had no information on file for three of the four suspects, in one case it had. Can Mr. Justice Barron identify by number the suspect on which it had information?

Mr. Justice Barron

Suspect No. 3 was mentioned in a letter from the RUC in April 1976, which would have been, at most, only a couple of weeks before the murder. It stated he was one of the active loyalist subversives and was quite capable of coming and doing what, in fact, happened.

Senator J. Walsh

Did anything on file indicate that the RUC made inquiries from the Garda regarding his potential involvement in any of the crimes it was investigating, including this murder?

Mr. Justice Barron

Unfortunately, as his file was lost, we only know about him from the files of other people mentioned in the same letter.

Senator J. Walsh

Regardless of the policy, from some of the comments from the Garda witnesses it is clear that they appear to be of the view that if they went north and interviewed the suspects directly they would be outside their jurisdiction and there was an inference — even if this is not the stated position — that that evidence might not be admissible. Does Mr. Justice Barron agree that would appear to be an incorrect assumption, if that was the case?

Mr. Justice Barron

That is a complex legal issue. I do not feel competent to say. I believe they thought that.

Senator J. Walsh

Does Mr. Justice Barron think it might have been a complication?

Mr. Justice Barron

It may have been a complication.

Senator J. Walsh

Do any aspects of the report merit further investigation apart from the process in which this committee has engaged?

Mr. Justice Barron

We set out what we discovered. If the committee feels certain aspects were not considered fully or something of that nature, by all means.

Senator J. Walsh

Does Mr. Justice Barron have any suggestion?

Mr. Justice Barron

I have no specific suggestion.

Chairman

I wish to ask about the information received from the RUC, referred to on page 20. On 30 January 1979 a letter was sent from the RUC which stated that it had been learnt from a source, believed to be reliable, that the four suspects were involved in the murder of Seamus Ludlow. It states that on 5 February this information was conveyed by letter to the divisional officer in Drogheda. On 15 February, Courtney and Corrigan went north. When detective sergeant Owen Corrigan, then Mr. Corrigan, gave evidence here recently he stated that they went north to discuss a matter related to a bombing in Dundalk and that they did not go for the purpose of getting more information on the murder of Seamus Ludlow. He stated that it hit them like a bombshell when two RUC officers gave information on the murder. From Mr. Justice Barron's investigations, does he believe that between 5 February and 15 February Superintendent Courtney and his team were informed of the letter that had come down from Dublin which had emanated from the RUC?

Mr. Justice Barron

From Superintendent Courtney's recollection, he also said that the information he received on 15 February in the North was the first he heard of it. There were two letters from the RUC. While I cannot find the second one immediately, there is no doubt that the second letter from C3, which was not sent on until 1 March, as far as I can remember, contains an internal reference stating that prior to 15 February Superintendent Courtney had asked for certain information.

Chairman

That was mentioned on page 22 of the report. On 28 February further information was requested. In that period, between 5 February and 15 February——

Mr. Justice Barron

He could have requested that in the course of his meeting on the 15th. The only logical conclusion is that the information received by the division on 5 February was not passed on to him.

Chairman

My understanding was that Superintendent Courtney reported directly to C3 regarding murders like this one. What was Mr. Justice Barron's understanding in this regard?

Mr. Justice Barron

No, I think it would have gone through the ordinary channels. I believe it is the divisional officer's job to pass it on.

Chairman

There is a period during which we do not know what happened and do not know why Superintendent Courtney was not informed.

Mr. Justice Barron

At one stage, I took the view that Superintendent Courtney might have been mistaken. When it refers to "as requested by Superintendent Courtney" and since that letter was written after the visit of the 15th, it is much more probable that on the 15th he asked for further information.

Chairman

It could be that the letter was on the desk of the divisional officer. We do not know why Superintendent Courtney was not informed of that by 15 February at the latest.

Mr. Justice Barron

That is correct. It was not Superintendent Courtney's job, it was the divisional officer's job. It was up to him, having received that information, to decide which of his officers would deal with it or whether he would ask C4 to deal with it. He had to decide whether to bring the technical investigation bureau back into the scene. The independent commission suggested that Superintendent Courtney should have been informed because he was dealing at the time with the Dundalk bombing and he was on the scene. I do not think it necessarily follows that the divisional officer would have appointed him to do it.

Chairman

There is evidence that the Garda investigation into the murder of Seamus Ludlow was brought to an end after a certain amount of time, although it would have continued in some way as part of the ongoing investigations of the detective unit up there.

Mr. Justice Barron

It would have.

Chairman

It seems reasonable to me that whoever was in charge of that ongoing investigation should have received this information on a timely basis.

Mr. Justice Barron

I suppose so. I am not certain I know exactly what the duties of a Border superintendent were.

Chairman

Yes.

Mr. Justice Barron

He was not a district officer. He was an additional superintendent in the division.

Chairman

There is a small gap in our information.

Mr. Justice Barron

There seems to be.

Deputy P. Power

I thank Mr. Justice Barron. I join my colleagues in welcoming him here to assist the sub-committee in its deliberations. Deputy Finian McGrath quoted from page 84 of the Ludlow report, which states:

Regardless of the motive behind the decision not to pursue the information offered by the RUC, the question remains as to who actually made the decision. The Inquiry believes it most probable that the decision was made by Deputy Commissioner Laurence Wren.

The former Commissioner, Mr. Wren, told the sub-committee he had no knowledge whatsoever of the case. What was the basis of the belief that Mr. Justice Barron expressed on page 84 of his report?

Mr. Justice Barron

I based it on my knowledge of the relationship between C3 and the Department.

Deputy P. Power

In light of what Mr. Wren told the sub-committee, can Mr. Justice Barron elaborate on the information that led him to come to the conclusion in question?

Mr. Justice Barron

The report was given to C3. It is doubtful such a highly unusual piece of information would not have been given to the head of that division, who was Mr. Wren.

Deputy P. Power

Does Mr. Justice Barron refer to the RUC report?

Mr. Justice Barron

No, I refer to Mr. Courtney's report. The letter of 30 January, which was dealt with by a superintendent whose name I cannot remember, was also sent to that division.

Deputy P. Power

Is Mr. Justice Barron thinking of Superintendent Fitzgerald?

Mr. Justice Barron

That is right. It is most unlikely he would have kept that letter from his superior officer. Letters like that do not arrive every day.

Deputy P. Power

Yes.

Mr. Justice Barron

That is the independent commission's conclusion.

Deputy P. Power

Yes, that is what I am getting at.

Mr. Justice Barron

I am going back to what I said before. The commission considered the information and reached its conclusions. People may disagree with them or reach their own conclusions.

Deputy P. Power

Yes. I am trying to isolate the specific information that would have led to that conclusion. Former Commissioner Wren said he knew nothing about the case — he had no knowledge of it whatsoever.

Mr. Justice Barron

He told our commission the same thing. We stated that in our report.

Deputy P. Power

I see. Can Mr. Justice Barron advise the sub-committee on how it can reconcile former Commissioner Wren's statement that he knew nothing about the case with the independent commission's conclusion that it is most probable the former Commissioner decided to instruct Detective Superintendent Murphy not to pursue the case further? The former Commissioner's statement is the polar opposite of the commission's finding. Can Mr. Justice Barron help the sub-committee to reconcile such completely different positions?

Mr. Justice Barron

The evidence is by no means as clear as that. Superintendent Courtney said he had a conversation with Sergeant Boyle, who passed this information on to him. The independent commission suggested in its report that perhaps Superintendent Murphy should have been in the forefront. The point remains that C3 knew all about it. The representatives of that division would have been discussing matters like that with senior officials in the Department. Mr. Hickey has reminded me to mention that there was an obligation on C3 to give people permission to go out of the jurisdiction.

Deputy P. Power

Yes. That is the point the sub-committee raised at length with Mr. Wren.

Mr. Justice Barron

Yes.

Deputy P. Power

I do not know whether Mr. Justice Barron has read the transcript of that meeting.

Mr. Justice Barron

I am afraid I have not.

Deputy P. Power

Mr. Justice Barron did not watch the video feed. I will summarise what Mr. Wren said. He said there was no question of him being in a position to make such a direction because the issue did not arise. There was no question of detectives going north of the Border because the matter did not arise. There was no question of it ever happening.

Mr. Justice Barron

At the time, the general policy was that they would not have been allowed to go north. Is that what Mr. Wren was saying?

Deputy P. Power

Yes, he said that was the policy.

Mr. Justice Barron

The gardaí in question would not have asked for permission to go north because they would have known they would not be allowed.

Deputy P. Power

Correct.

Mr. Justice Barron

I understand. One must then consider a different proposition. Why was Superintendent Courtney sending such a report? Does it not suggest another, contradictory, avenue?

Deputy P. Power

What avenue is that?

Mr. Justice Barron

Superintendent Courtney reported that Chief Superintendent Mooney offered to allow two of his officers to go with him.

Deputy P. Power

Yes.

Mr. Justice Barron

Why would he write such a report unless there was something in it?

Deputy P. Power

The sub-committee is trying to reconcile both of those positions.

Mr. Justice Barron

I cannot help the sub-committee in that regard. I can only point out the position that has been set out in the independent commission's report.

Deputy P. Power

I see. Can Mr. Justice Barron suggest how the sub-committee can attempt to reconcile both of those positions? Does he think it can be done in any way?

Mr. Justice Barron

If one accepts what Mr. Wren is saying at the moment, it is clear the question of a decision would never have arisen. Therefore, I suppose one has to consider the basic question of whether that is correct, or whether a decision would have arisen. The independent commission reached the conclusion that the question of a decision would have arisen and it outlined who it thinks would probably have made such a decision.

Deputy P. Power

It states in its report that the decision was actually made by the former Commissioner, Mr. Wren.

Mr. Justice Barron

He is the person who——

Deputy P. Power

Okay.

Mr. Justice Barron

I would have thought the matter would have been referred to the Commissioner in the ordinary course of events and that the Commissioner would have dealt with it. As it was not referred to the Commissioner, it must have stopped below him. If a decision was made in such circumstances, it must have been made by the most senior person in the relevant division of the Garda. That was Mr. Wren.

Deputy P. Power

Okay. Mr. Justice Barron refers to the direction that was given by the former Commissioner, Mr. Wren, on page 83 of the report, which states:

As to why such a direction might have been issued, only one credible explanation has been offered — that it was done in order to avoid a situation where Gardaí might feel obliged to reciprocate by allowing RUC officers to attend interviews of suspects in the State.

Mr. Justice Barron said only one credible explanation has been offered. Who offered that credible explanation?

Mr. Justice Barron

Several members of the Garda.

Deputy P. Power

In other words, that would have been the rationale behind Mr. Wren's decision.

Mr. Justice Barron

That was our view.

Deputy Costello

I thank Mr. Justice Barron for his fine report. I am still somewhat perplexed about the issue the Chairman raised and perhaps I could explore it a little further. The first line on page 20 states that on 30 January 1979, a letter was sent from the RUC Chief Constable's office to Chief Superintendent Michael Fitzgerald, security and intelligence, C3, Garda headquarters. Does that suggest that the communication was made by the RUC, at virtually the highest level, in terms of dealing with subversive crime?

Mr. Justice Barron

Yes, it went from the head of security in one jurisdiction to the head of security in the other. It was a security issue.

Deputy Costello

It was not co-operation between members of the RUC as such. It would have been a formal, official notification. Is that the case?

Mr. Justice Barron

I think so, yes. Obviously with an intention that the matter would be taken up further.

Deputy Costello

Page 79 of the report refers to better co-operation. The report states:

The three areas on which the British Government focused were hot pursuit, overflying rights .... [and so on]. With that in mind, the decision of the RUC to release the information on the four suspects at the end of January 1979 — some 18 months after they had received it — may have been seen as political in nature: a gesture made in the hope of forcing future concessions from the Irish authorities on the issue of cross-Border investigation.

Is that mere speculation? Would it not have been equally valid that the information would be released when it came to the knowledge of the RUC? Surely the issues of cross-Border co-operation, hot pursuit, overflights and so on would have been equally valuable to the British authorities 18 months earlier in 1977, as it would have been in 1979, because the atrocities of 1979 had not happened at the time?

Mr. Justice Barron

This was the view of the Minister at the time, Mr. Collins. We are merely repeating what he said to us.

Deputy Costello

Therefore, that last sentence reflects the Minister's view.

Mr. Justice Barron

Yes.

Deputy Costello

It is not necessarily Mr. Justice Barron's view. What is Mr. Justice Barron's view? There is a big question mark over why the RUC held information for 18 months that was most pertinent to a murder in the Republic, and why it should formally disclose it at the highest level 18 months later.

Mr. Justice Barron

Their excuse for withholding it for 18 months was a promise they had given to the person who had given the information to them, that he would not be exposed. That is the reason they gave.

Deputy Costello

Does that stack up? Disclosing the information 18 months down the road would hardly identify the person.

Mr. Justice Barron

The problem we had doing the report is that we had a remit to find the information. It was no part of our remit to criticise or to suggest political motivation or anything of that nature. So much of this has political connotations. We have gone out of our way to try and be as safe on that issue as possible.

Deputy Costello

As well as political connotations there could be military connotations.

Mr. Justice Barron

Yes. It could be either.

Deputy Costello

There could have been connotations of collusion which would have been relevant.

Mr. Justice Barron

Yes, of course, but we have dealt with that.

Deputy Costello

I will go back to page 20 for a moment. The information was supplied to Chief Superintendent Michael Fitzgerald who was in charge of C3. He forwarded the information by letter on 5 February to Chief Superintendent Cotterell in Drogheda. It is not clear if Chief Superintendent Cotterell briefed Superintendent Courtney at the time. Neither is it clear if Superintendent Courtney was going to Belfast on 15 February with a view to speaking to the authorities there in regard to the killing of Seamus Ludlow or in regard to other matters, and that he was by chance briefed on that occasion.

Mr. Justice Barron

He was in the North in January with Sergeant Corrigan dealing with the Dundalk bombing. There is nothing strange about the fact that he would have been there in February dealing with the Dundalk bombing also. Certainly the most reasonable explanation for his being surprised at the information is that it was not passed on to him by the divisional officer.

Deputy Costello

Between 5 and 15 February there was no investigation. In other words, it was still information that was supplied to the authorities in the Republic, and that the investigation might never have happened if, by chance, Superintendent Courtney was not in Belfast and was not briefed by two RUC special branch officers.

Mr. Justice Barron

That is a bit speculative. Just because the information was not given within the period of ten days does not suggest that either the divisional officer himself or C3 would not have taken the matter up again.

Deputy Costello

Superintendent Courtney did not go to Belfast to pursue the murder of Seamus Ludlow.

Mr. Justice Barron

That seems to be the situation.

Deputy Costello

When Superintendent Courtney expected to go to Belfast to pursue the Seamus Ludlow murder, for some reason, he was denied permission to do so by somebody.

Mr. Justice Barron

That is what he said.

Deputy Costello

That begs the question of whether there was ever an investigation into the Seamus Ludlow murder. Information that was supplied by the RUC authorities to the Irish authorities was that no instructions appeared to have ever been issued to pursue that murder case.

Mr. Justice Barron

That seems to be the situation.

Deputy Costello

Therefore, there may not have been an investigation, as such, at all in 1979. The only information that was obtained by Chief Superintendent Courtney from the Republic was the information he obtained when he travelled to Belfast to investigate another matter. He was surprised, as was Owen Corrigan who was with him. He got the information and made a report on this, although it had not been his reason for going to Belfast, and that report does not appear to have gone anywhere after he made it. It appears to have died in terms of procedure.

Mr. Justice Barron

Yes.

Deputy Costello

We could conclude that there was no apparent investigation——

Chairman

Let us not come to any conclusions.

Deputy Costello

Taking into account the material before us, there is no indication that any instruction emerged from a higher level to conduct an investigation into the Seamus Ludlow murder in 1979 given that an enormous quantity of information had been made available by the RUC.

Chairman

The purpose of this meeting is to allow Mr. Justice Barron to help us.

Deputy Costello

It is important that we tease this out for our own information.

Chairman

We will do that when——

Deputy Costello

The second question, which perplexes everybody, concerns why the investigation, or lack of it, died so suddenly, bearing in mind the counterclaims. Former Commissioner Wren said there was no question of anybody ever going to the North. Former Deputy Commissioner Ainsworth said there was no question of anybody going to the North under C3 permission, and that information would have been supplied. Gardaí who were active on the ground stated to the committee that gardaí went to the North and other jurisdictions on quite a number of occasions. The evidence we received some days ago from Commissioner Conroy did not seem to create a stir. His letter in response to a query by a member of this committee on people coming from the North to the South, dated 13 February, states:

The case involving Patrick A. Livingstone was not reached in the court list before the lunchtime recess at Dundalk District Court. He was brought back to Dundalk Garda station, where a written report record that he was interviewed by RUC officers. The interview took place between 1.40 p.m. and 2.10 p.m. No member of An Garda Síochána was present during the interview.

Was there not a formal instance in which the directive from 1953 was quoted and an informal one in which people did go north relatively frequently, and vice versa?

Mr. Justice Barron

I know nothing about it. The name Livingstone does strike a bell but I do not know about the matter.

Chairman

On the other side of the argument, former Detective Hynes said he was in the North on three or four occasions and the current Garda Commissioner said he interviewed a suspect in Britain on one occasion, although it did not involve a case of subversion. Regardless of what Mr. Justice Barron was told about C3 not authorising people to go to the North, they did so. Not only were they present at interviews, but they seem to have conducted them on one or two occasions.

Mr. Justice Barron

I would have been surprised if that had not been the case. Essentially we were told that during investigations one got better information on a one-to-one basis. That is a common theme in the information we received. We were always told there were two ways of getting information, one of which was the informal method whereby one crossed the Border to our side. The other was the formal method whereby one went up the line involving the Superintendent, District Officer, Divisional Officer, C3, perhaps the Commissioner, and the Chief Constable in the North, and, having done so, one went down the chain again. We were told that was the formal method and that it was not used in this case.

Deputy Costello

I have one last point. On page 78 of the interim report, Mr. Justice Barron states:

The Inquiry has met with James Kirby [the assistant principal officer in 1979], who said he had no memory of the Ludlow case. On the issue of communication between the Department and An Garda Síochána, he said that he personally had maintained a close relationship with C/Supt Fitzgerald: the two men regularly held long telephone conversations in which they discussed the activities of republican and loyalist subversives. He did not deny the possibility of similar communications occurring between either Chief Superintendent Fitzgerald or Assistant Commissioner Wren on the one hand and Andrew Ward or Pat Colwell on the other.

All things considered, it seems highly likely that the contents of Superintendent Courtney's report of 15 February 1979 were passed to the Department [of Justice]. It is even more likely that the letters from the RUC to C/Supt Fitzgerald received on 2 and 28 February 1979 respectively would have been forwarded to the Department. Nevertheless, there is nothing in the Garda or Departmental files to confirm this.

How is it possible that the Department of Justice, Equality and Law Reform would not have a file on a serious case of subversive murder in the Republic?

Mr. Justice Barron

I would have thought the Department would have had a file. All I can say is that it is not available now.

Deputy Costello

Is it credible that there is no file?

Mr. Justice Barron

That is everybody's view. We make our own conclusions and it is for everybody else to——

Deputy Costello

It is certainly incredible to me. There had to be a file.

Chairman

We are not making conclusions at this point. We will arrive at conclusions when we have considered all the information available.

Deputy Costello

I am not accusing the Department but saying everything points to the existence of a file. A file should have been created in circumstances of this nature in 1979, yet there is no sign of one. Was there a sufficiently extensive search of the files in the Department? I understand there are registered files and unregistered files. Did Mr. Justice Barron or anybody else manage to gain access to the unregistered files? There may be a misplaced or unregistered file in the Department.

Mr. Justice Barron

We wrote on several occasions to confirm the position. I am not aware of the existence of unregistered files. I was shown a registry and books indicating what files had been opened.

Deputy Costello

I can assure Mr. Justice Barron that there are unregistered files.

Mr. Justice Barron

I know nothing about that.

Deputy Costello

Mr. Justice Baron did not have access to any unregistered files.

Mr. Justice Barron

No, I cannot say I had or had not — that is the problem. The Department was helping us as far as we were concerned. We asked for all the files it had and got all the files it had. We drew attention to the fact that it was strange that it did not have a contemporaneous file. The officials said there was none. We asked a question on a similar point several months after the first inquiry and received the same answer.

Deputy Hoctor

I welcome Mr. Justice Barron. Page 11 of the interim report refers to correspondence between the inquiry staff and the Northern Ireland Office on the questioning of Mr. Kevin Donegan. Mr. Justice Barron sought further information and the responses appeared to be very poor, or else there were none. He stated he had still not received a final response from the Northern Ireland Office on the completion of the report. Has he heard anything about this since? In paragraph 4 on page 24, there is a reference to the fact that no DNA sampling took place at the murder scene. Was that not unusual? Was it queried further?

Mr. Justice Barron

I am not so sure that DNA was a matter of importance at that time.

Deputy Hoctor

What areas would the inquiry have wanted to pursue further had it not been for the constraints on it?

Mr. Justice Barron

We would have wanted to know what was on RUC files, how it came to know about this and so on, but we did not get that information.

Deputy Hoctor

Were there any other areas?

Mr. Justice Barron

I do not think so. We got all the assistance we felt was appropriate from authorities within the State.

Deputy G. Murphy

In that context, would greater co-operation be forthcoming from the Northern Ireland authorities if there was a sworn public inquiry?

Mr. Justice Barron

My personal opinion is that there would be no difference.

Senator J. Walsh

Mr. Wren told us when he was here that there were frequent meetings in the late 1970s between the Garda and the RUC and that copies of the minutes of those meetings were sent to the Department. Did the inquiry see any such minutes of those meetings from 1976 to 1981?

Mr. Justice Barron

I do not think we did. Following a meeting, referred to as the Baldonnell meeting, in September 1974, there was an arrangement for the two police forces to meet on security matters and they met regularly after that for at least a year, as far as I remember. I am not aware of similar meetings later on.

Senator J. Walsh

Mr. Wren said it depended on the year being referred to. Initially there was little contact but it then grew. I asked if minutes were kept and he said they were. I said presumably they should be somewhere and he agreed. When I asked about the period, if it was the late 1970s, he said yes and that copies of the minutes would have been made available to the Department. Those minutes would be worthy of a trawl to see if there was any reference to the Ludlow murder.

Mr. Justice Barron

Certainly, in my mind, there were meetings between the Commissioner and the Chief Constable over that period. I have a vague recollection of asking about minutes of those meetings and being told there was none.

Senator J. Walsh

Interesting. At the bottom of page 83, the report states there is only one credible explanation for the investigation ceasing: it was done to avoid a situation where gardaí might feel obliged to reciprocate by allowing RUC officers to attend interviews of suspects in the State.

Mr. Justice Barron

Yes.

Senator J. Walsh

On the face of it, if the RUC was coming to the South to investigate a murder in Northern Ireland, it would appear inappropriate that it would not get co-operation. This would seem to be a symptom rather than the real reason as to why it would be disallowed from coming down. The reciprocal issue should not really be the core issue, there must have been a more significant reason.

Chairman

Put forward a hypothesis.

Senator J. Walsh

Perhaps the gardaí and the Government of the day were concerned about inflaming republican sympathies in public opinion generally and garnering support for the republican movement. That is one hypothesis, there had to be a more significant reason which lay behind this being in place. I am wondering if Mr. Justice Barron formed any views of what that might be.

Mr. Justice Barron

We passed on the information we got that we thought was reasonable. We set out at the top of page 84 that such policy could have arisen out of a combination of one or more of the following factors.

Senator J. Walsh

That would not be a sensible policy just for the sake of it, not to co-operate with an outside police force on the investigation of serious crime. There had to be a more significant policy issue that gave rise to that as a subsidiary.

Chairman

The third comment on the list on page 84.

Senator J. Walsh

Fear of political consequences in certain sectors of the population if there was co-operation.

Mr. Justice Barron

It is difficult to assess the political situation 30 years ago.

Senator J. Walsh

That is the kernel of the matter. I do not disagree with the conclusion drawn.

Mr. Justice Barron

It is a consequence of it.

Senator J. Walsh

It is a symptom or consequence rather than the reason. Does Mr. Justice Barron have any views on what the overriding considerations would have been other than what were set out as possibilities?

Mr. Justice Barron

The reality is that it was probably political.

Senator J. Walsh

Political.

Chairman

This is the third report the sub-committee has examined and we expect that another report will be forthcoming.

Mr. Justice Barron

The sub-committee will be burdened with a fourth report.

Chairman

Has that gone to Government?

Mr. Justice Barron

I would have thought it would have gone to Government by now but it is awaiting confirmation of one fact. It is all written, everything is done. This is Wednesday and I would be very surprised if it did not get there by Friday.

Chairman

It is our intention, if the Dáil and Seanad refer it to us, to examine it as we have done the previous reports and at that point to form an overall view of the reports. Is that the final report?

Mr. Justice Barron

It is the final report. There will be some matters that will require consideration before it goes into the public domain.

Chairman

While it will be complete within a week, that does not mean there are no other items that must be considered before it comes to us.

Mr. Justice Barron

This report will be held up for the same reasons as the Ludlow report.

Chairman

I thank Mr. Justice Barron and Mr. Hickey for attending. They have been very helpful. In our next meeting, Mr. James McGuill, the solicitor for the Ludlow and Sharkey families, will make a closing statement.

The sub-committee adjourned at noon until 11 a.m. on Tuesday, 21 February 2006.