Unanswered questions

Sunday was not the only bloody day, says Geoffrey Bindman

The embarrassing delay in completing the Bloody Sunday Inquiry after 10 years is mitigated by the high quality of the report and the authority of its conclusions. The inquiry began in 2000 and completed its examination of witnesses and collection of evidence by 2005. We do not know why it took a further five years. Certainly it could not have been difficult to determine the result: it was obvious from the outset that the killing of 13 civilians by members of an army platoon in Derry on 20 January 1972 could not possibly be justified.

The report is massive, running to 10 volumes. While it may have laid to rest all doubts about the tragic events themselves, questions remain, which Jon Robins in his recent and otherwise excellent article has not addressed (see NLJ, 2 July 2010, p 919). How can it make sense to spend nearly £200m of public money on the investigation of 13 deaths when hundreds of others during the same period have hardly been investigated at all? How is the huge cost accounted for? And how can such a sum be found when legal aid is dying of starvation?

The promise of a new inquiry became a key element in the negotiations between the UK and Irish governments for the Anglo-Irish agreement on the future of Northern Ireland in 1998. Soon after Bloody Sunday itself Lord Chief Justice Widgery reported that shots had been fired at the soldiers by some or all of the deceased and that the soldiers were justified in shooting back. Eyewitness accounts were unanimous that only the soldiers opened fire and no firearms were ever seen or found in the possession of the deceased or any civilians. Widgery was seen as a whitewash.

Fundamental mistake

I have great respect for Lord Saville whom I had instructed when he was a practising silk but he and his colleagues made a fundamental mistake when they allowed legal representation on a massive scale to a whole range of more or less interested parties. The report lists 21 QCs, 22 junior counsel, and several firms of solicitors.

The original budget was £11m. In 2002 the government estimated the final cost at £100m. In a written Commons answer in 2005 it was revealed that Christopher Clarke QC, counsel to the inquiry (now Mr Justice Clarke) had been paid £4,418,000 and Edwin Glasgow QC, counsel for the Ministry of Defence, just under £4m. If they were there on all 434 hearing days each got nearly £10,000 a day. Eversheds, the solicitors employed by the inquiry to collect witness statements, billed over £12m and the Belfast solicitors Madden & Finucane, who represented many of the families of the deceased, £8m. Were their hourly rates as low as legal aid rates? I don’t think so.

Lord Saville installed the latest technology and the complete evidence was online daily. But oral hearings with so many advocates are wasteful. Many of the lawyers without a speaking role surely did not need to be there so often? I represented one of the soldiers. I attended on only four days.

Shoot to kill?

In 1983 I took part in an inquiry into the alleged “shoot to kill” policy of the security forces in Northern Ireland. Our team of European and American lawyers was led by Kader Asmal, then dean of humanities at Trinity College Dublin and subsequently minister of education in Nelson Mandela’s South African government.

No government agency was prepared to co-operate with us and in the end we could not conclude that such a policy existed, though a subsequent investigation by former deputy chief constable John Stalker came closer to doing so. We did however ascertain that between 1969 and 1983 no less than 267 civilians were killed by members of the security forces, of whom at least 155 had no known connection to paramilitary organisations or activities.

Most of these cases have not been properly investigated and no one held accountable. Demands to investigate some notorious killings, such as those of the solicitors Patrick Finucane and Rosemary Nelson, have not been fully implemented. The special treatment of Bloody Sunday was politically motivated. It leaves unresolved the many other cases but it is inconceivable that another inquiry on the scale of Bloody Sunday could be contemplated. The Inquiries Act 2005 gives greater power and responsibility to limit cost, largely by cutting out or restricting the lawyers as in the Butler, Hutton and Chilcot inquiries into aspects of the Iraq war.

Unresolved

So there are two unresolved anomalies highlighted by Bloody Sunday which demand further investigation. One is the contrast between the exhaustive examination of the events of that day and the abject failure to achieve justice for many other civilian victims.

The other is the contrast between the extravagant public funding of the Bloody Sunday inquiry lawyers and the increasing impoverishment or elimination of legal aid. Here there arises the broader issue of variable public funding of legal advice and representation: Why do the fee arrangements for legal aid not apply to all publicly funded legal work?

Sir Geoffrey Bindman, consultant, Bindmans LLP

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