I will focus on the questions of where the matter goes from here and what the Ludlow family asks the sub-committee to recommend to the Oireachtas in regard to these matters.
While I will not go over the ground that Mr. Coffey and Mr. MacGuill have covered, it should be clear from the outset that the family is not asking for an investigation into the murder. As Mr. MacGuill noted, there was a suggestion during the hearings that this was the purpose for which the public inquiry was sought. The family is satisfied that it knows who killed Seamus Ludlow. It knows and has been legally advised that it is highly unlikely that anybody will ever be brought to justice, in the sense of a criminal trial, for that murder. The reason that no one has been, or will be, brought to justice is that the murder investigation was blocked. What the family asks the committee to do is recommend a public inquiry with full statutory powers into the investigation by the authorities in this jurisdiction into the murder of Seamus Ludlow. If the criminal justice system is unable to deal with the perpetrators of this murder, it is due to the actions of the authorities in this State in regard to the investigation.
One of the reasons it is suggested that a public inquiry is needed is that in the past ten years two internal Garda inquiries have been conducted by experienced senior gardaí who were not able to discover why this investigation was stopped. Mr. Justice Barron conducted his inquiry but was not able to discover why the investigation was stopped. Unfortunately, it was only yesterday evening that we received the transcript of the hearings in regard to Mr. Justice Barron's attendance before the committee. However, it is clear from the transcript that Mr. Justice Barron accepted what he was given from all sources and did not interrogate those sources. He did not interrogate the officials from the Department of Justice, Equality and Law Reform as to the non-existence of files. He accepted former Detective Superintendent John Courtney's account or at least received this account. He received former Commissioner Wren's account. He recorded both of them and decided he preferred that of former Superintendent John Courtney. He did not make a factual finding.
There was no interrogation of witnesses and there was no reconciliation of what occurred with regard to the investigation. We are currently at this stage. We do not know why the investigation was stopped. When the layers are peeled away, the matter at hand could not be more serious. What is clear to date is that the State, in one or other of its manifestations, decided not to pursue the probable killers of one of its citizens. The potential damage to the rule of law in a democratic society from such a decision is self-evident.
It is debatable whether a decision by a State authority not to pursue a murder investigation in respect of one of its citizens could ever be justified. Some greater good must be served but can it ever be justified? Whether it can be justified depends on knowing when a decision of that nature has been taken. We must know what decision was taken and we must have an opportunity to consider such justification as the State may offer for the decision. In order to even engage in that debate, we must know what occurred and why it occurred. Despite three investigations to date, we do not know this. We still do not know what happened or why with regard to this case. The State is clearly recalcitrant in its duty to its citizens to justify what has happened in this case, which is a marked departure from the rule of law. The restoration of confidence in the democratic processes of the State requires that the inquiry be conducted in public.
It would be possible to conduct such an inquiry here. I am mindful that a committee was willing, if possible, to recommend a public inquiry on the Dublin and Monaghan bombings but was of the view that, because so much of the material was outside the control of the authorities of the State, this would not be possible. That does not apply in this instance. All of the main witnesses are still available. Tellingly, many of these people, such as former Detective Sergeant Daniel Boyle, Mr. James Kirby of the Department of Justice and others such as Detective Superintendent Ted Murphy, who conducted the Garda inquiry, have not appeared before the sub-committee. Some of these names may be wrong.
In order for us to know why the State acted in the way it did, we need a public inquiry. The inquiries to date, and their failure to resolve the matters, provide ample evidence that, short of a public inquiry, the answers will not be forthcoming. Mr. MacGuill has pointed out that another enormous benefit of a public inquiry, as opposed to a private inquiry, is that the family could participate in any such inquiry. Its members could see for themselves the unfolding of the evidence of what occurred. There would be a right to cross-examine those whom they have consistently indicated misled them as to the identity of the killers and who have, in effect, branded Seamus Ludlow an informer.
The inquiry need not be cumbersome or lengthy but can be focused and tightly constrained. We suggest four questions that require to be answered in a public inquiry. The first is whether the murder of Seamus Ludlow was properly investigated in 1976. Despite Mr. Justice Barron's view that the initial investigation was adequate the family is not satisfied that it was, and Mr. McGuill has dealt with that. It appears that the active investigation was concluded within 21 days and a report filed on the matter. What did that report contain? Did it suggest IRA involvement in the murder or possible loyalist paramilitary involvement? Why was a note appended to the file by Garda Commissioner Garvey instructing that contact be maintained with the RUC? Why was an inquest held in 1976 in the absence of the family?
I am not aware if the members of the sub-committee are familiar with the normal procedure, accepted by the gardaí at the reconvened inquest in 2005, whereby, in an active murder investigation, an inquest is opened and then adjourned. This inquest was opened and concluded in the absence of the family. I have seen transcripts of the sub-committee's meeting with the coroner, Mr. Farrell. The question is not merely whether families should be notified but why, in the context of an investigation which was supposedly ongoing, was the inquest concluded at all? The issue is wider than the regulations concerning the notification of the family.
The second question we ask a public inquiry to examine is why credible leads given to the Garda Síochána by the RUC in January 1979, at the latest, were not followed up. I say "at the latest" because there is a possibility that the information was available earlier. I note Mr. Justice Barron, in response to Senator Jim Walsh at this sub-committee, said those leads may have been earlier than 1979. When was the information available and why was it not followed up?
The third question is why real evidence gathered at the scene was not preserved. What happened to it? When was it last in the custody of the Garda Síochána and in whose custody was it? Was it available in 1979 when credible information as to the identity of the killers became known? If not why not? Could it have been because the file was, to all intents and purposes, closed before 1979? If it was available in 1979 why was it not carefully preserved for use in any future prosecution, which might become possible when the exigencies demanding that the prosecution not be pursued at that time had passed? None of the inquiries, whether by the gardaí or Mr. Justice Barron, has adequately answered these questions.
The fourth question is whether a decision was taken not to pursue the investigation of the murder of Seamus Ludlow. If so, who took that decision and for what reason?
These are four questions on discrete issues. We do not face the prospect of a public inquiry lasting several years. A public inquiry could be conducted just as, if not more, speedily than a number of the private commissions of investigation ongoing at the moment. Witnesses and documents would be compellable, preliminary work could be done and the relevant people examined and cross-examined. By addressing four discrete issues, the inquiry would be manageable and would avoid the possibility of endless hearings.
I am aware that the committee has recommended a commission of investigation in reference to certain aspects of the Dublin-Monaghan bombings but we consider such a commission to be entirely unsuitable for the purposes of this inquiry because it would merely replicate the work conducted by Mr. Justice Barron with a few additional statutory powers. Commissions of investigation are intended by their nature to be private and voluntary in terms of encouraging those with information to engage voluntarily. That has been tried here on three occasions but we still do not know why and by whom the decision was taken to block it. All that would happen is that the central issues which need to be determined in a public inquiry would be put on the long finger. The fact that such a commission conducts its work in private means that its conclusions and the manner by which it reaches them will not be transparent, which is unacceptable in light of the events that we submit have happened to date in this case. Other than making submissions, the family would be excluded from the process and would never know what weight, if any, was attached to their submissions.
Our most significant grounds for regarding a commission of investigation as inappropriate for the necessary inquiry into this case is that a private investigation will not make determinations of fact. If a conflict arises, the commission will at best give an opinion — as Mr. Justice Barron has done — as to its view but will not explain why a halt was put to the investigation into the murder of Seamus Ludlow or identify who made the decision. At most, we will get the opinion of a person who conducted the investigation because the interrogation of information and documents, which forms part and parcel of a tribunal of inquiry, will not take place.
Members of the committee will be more familiar than I with the debate that took place in the House on the purpose of the Commissions of Investigation Bill when that legislation was before it. A number of submissions were made in respect of the Minister for Justice, Equality and Law Reform in terms of the intended duties of commissions of investigation. He was careful to tell the Dáil that they were not intended to replace tribunals of inquiry but to provide an additional tool in dealing with inquiries such as the recent Ferns Inquiry or the forthcoming investigation of the handling of allegations into sex abuse in the Dublin archdiocese. They are appropriate in such instances because many people would not come forward to an inquiry unless they were guaranteed a level of confidentiality or privacy with regard to their testimonies. However, they are not appropriate to this type of inquiry, where the very gathering of knowledge has to be done in the open so that everybody can see that the process is transparent and accountable.
A further reason why this case should not be sent to a commission of investigation is that the subject of the inquiry in this instance is the State itself. How could we have confidence in an inquiry, no matter how properly conducted, commissioned by and under the control of the Government into the actions of previous Governments? Who could have faith in the outcome of such an inquiry when it would be conducted behind closed doors and in private? A commission of investigation would be a Government commission established by a Minister, presumably the Minister for Justice, Equality and Law Reform.
I understand that the sub-committee attempted to overcome this by delegating the Dublin and Monaghan commission of investigation inquiry to the Department of the Taoiseach but this is more fundamental. The State is potentially involved at the level of the Departments of Justice, Equality and Law Reform, the Taoiseach and Foreign Affairs, as well as the Garda authorities. These organs were all potentially involved in the decision taken in the Ludlow murder investigation. The Minister chosen to conduct a commission of investigation would set the terms of reference. Is that acceptable? He would also set the timeframe. Is that acceptable? The Government could terminate the commission under the Commissions of Investigation Act whenever it so chose. It is not an appropriate vehicle to conduct the sort of simple, focused inquiry necessary in this case.
For those reasons, we ask the sub-committee to recommend in this instance that a public inquiry with full statutory powers would be convened to answer the four questions I tabled on the final page of our submission. Was the murder of Seamus Ludlow properly investigated in 1976? Why were credible leads given to the Garda by the Northern Ireland police force, at the latest in January 1979, not followed up? Why was the real evidence gathered at the scene not preserved? Was a decision taken not to pursue the investigation of the murder of Seamus Ludlow and, if so, by whom was it taken and for what purpose? On behalf of the Ludlow family, we request that the sub-committee recommend a public inquiry into those four questions.