Nicholas (nwhyte) wrote,

August Books 2) The Bloody Sunday Report, Vol IX

Now that the main story and conclusions are done, Volume IX looks at some issues of evidence and legality, a couple of which struck me as important enough that they should really have been included in the main findings of the report. Although at 253 pages this is by far the shortest volume, the points raised are interesting and I go into them in great length below, with some pretty full quotations from both the report and the evidence given to the inquiry.

Fully a quarter of the report is taken up with examining the procedures by which the Royal Military Police took statements from the soldiers involved with the events of Bloody Sunday and drew maps of the shots fired. I was not hugely surprised to learn that the usefulness of these statements had been challenged at the inquiry; I was, however, surprised to see that this was generally by the lawyers representing the soldiers. But it seems that the issue is the occasional inconsistencies between the soldiers' statements given immediately after Bloody Sunday to the RMP, and their later statements to the Widgery Tribunal, to Saville, and in some cases elsewhere. There were one or two cases, which I noted earlier, where the soldiers themselves explained such differences by accusing the RMP of putting words in their mouths. Saville's reaction then was that it was more likely that the soldiers changed their story than that the RMP had made it up for them, and in general I think I agree now, though I was dubious before. There is no generally visible pattern of the RMP over-egging the pudding, and the soldiers concerned generally turn out to be unreliable witnesses of their own actions for other reasons. There is clear evidence of the RMP clearing up terminology, which occasionally did result in useful details being lost, but my previous suspicions are allayed.

However, a much more serious issue is clear: the RMP do not seem to have been adequately empowered or equipped for criminal investigations against soldiers who had used unlawful force against civilians. Their statements were mandatory, ie made as a military duty; if a soldier admitted committing a crime, in theory, they were to be handed over to civilian investigators, but I don't know (and Saville doesn't tell) of any case where this actually happened. In the context of an incident like Bloody Sunday, the role of the RMP was to gather sufficient facts for the army leadership to get its story straight, and not, apparently, to investigate wrong-doing by soldiers. To quote the submission from the lawyers representing the victims: A statement was taken from a soldier as witnesses, not a suspect, without caution. This was done because, firstly, the soldier was not expected to make any admission of criminal responsibility and, secondly, the investigator would not be trying to obtain any incriminating admissions. Major INQ3 [the Deputy Assistant Provost Marshal on the day] accepted both these propositions. Major INQ3 also accepted that this was all explained to the soldier. Major INQ3 was questioned about the consequence of this procedure as follows:
‘Q. So a soldier knew that really so long as he did not make any incriminating admissions, his account would not be tested and he would be in the clear as far as prosecution was concerned?

A. Possibly. That was up to him.

Q. There was certainly nothing to discourage a soldier from fabricating an account was there?

A. No.

Q. In fact, you can see how this procedure would have positively encouraged soldiers to fabricate accounts where the soldier had something to hide?

A. It is possible.’ Even if a soldier volunteered an admission of criminal conduct, there were checks and safeguards against the soldier maintaining such an admission. First, if this happened the interview would be stopped. Secondly, the matter would be referred to an officer ‘for confirmation’. Thirdly, the matter would be referred to the Army Legal Services. Fourthly, a caution would be administered. The knowledge that the police would not get involved in an investigation meant that both the SIB investigator and the soldier being questioned knew that matters could be kept in-house within the Army and no criminal charges brought as long as no soldier insisted on claiming criminal responsibility.
Saville is (almost) silent about whether or not this can be considered a satisfactory state of affairs; while admitting that there is something in it, he also stresses the value of the RMP statements as early records of what was said to have happened. However, he goes on:
173.139: In the first place, there was evidence that at the time there was in the Army in Northern Ireland what could be described as a culture of closing ranks, in the sense of soldiers not only refraining from saying anything that might incriminate their colleagues or put their regiment or the Army as a whole in a bad light; but also going out of their way to be less than candid when questioned about matters that might have had such effects.

173.140: In a memorandum dated 13th April 1972 from the Vice Adjutant General to the Adjutant General, which was principally concerned with misbehaviour on the part of soldiers unconnected with Bloody Sunday, the Vice Adjutant General recorded:

“3. More generally General Tuzo expressed his disquiet at what would appear to be a growing habit of commanding officers to cover up on allegations made against their soldiers. He says it is extremely difficult for him to obtain the true facts when such charges are levelled by police and/or civilians because commanding officers appear to feel it incumbent upon them to stand up for their subordinates in all circumstances and at all costs. In a situation such as Northern Ireland this kind of attitude can be selfdefeating, particularly since the GOC has clearly got as great an interest in the morale and well-being of his units as have their commanding officers. He wondered whether it would be possible for commanding officers of units under orders to proceed to Northern Ireland to be more fully briefed than at present appears to be the case on the need for them to investigate in a totally unprejudiced fashion all charges levelled against their soldiers; instead of, as at present, taking the attitude, ‘My soldiers right or wrong.’ I told him I would discuss this matter with you on your return and that it might well be that you would consider writing to Commanders-in-Chief drawing their attention to this particular problem.”
173.141: Major INQ 3 agreed that General Tuzo’s complaint corresponded with his own experience. The protocol drafted by Warrant Officer Class I Wood specifically warned SIB officers that they would find that a soldier’s superior officers might be over-eager to support their men’s actions and try to incorporate statements such as “In my opinion Private … acted correctly when he fired on the man” in their evidence. When asked to
confirm that “soldiers tended to close ranks when they were being questioned about the possibility of either themselves or other soldiers committing criminal acts”, Major INQ 3 said: “Of course, that is part of unit loyalty.” He also said “that goes without saying” and when it was suggested that this unit loyalty extended through all levels of the Army his reply was “I presume so”.  Colonel INQ 1383, the APM, also agreed that one could rely on soldiers to “close ranks”.
More on this below; but it is worth noting that the officers giving evidence to Saville simply agreed with the proposition that the Army would protect its own.

There are then chapters looking at how the trajectory photographs of the soldiers' shots were compiled; what might have happened to various photographs known to have been taken on the day but since missing (the soldiers' lawyers arguing that their absence was evidence of a vast pro-IRA conspiracy, Saville disagreeing); the provenance of one particular photograph of people in Glenfada Park North; the question of psyops, linked with the colourful figure of Colin Wallace but of marginal relevance to events on the day; and the dramatic story told by Private 027, whose media interviews were a major part of the process leading to the setting up of the Saville Inquiry, but who does not really seem to have come through witt the goods:
179.18: In his oral closing submissions, counsel for the majority of the families described Private 027 as “a wretched witness”. To a substantial extent we agree that this comment was justified. At the same time, we take the view that Private 027’s evidence cannot be wholly dismissed on the basis that it is such exaggeration, fantasy and deceit as to be of no assistance. Our conclusion is that it would be wrong to ground any of our findings about Bloody Sunday on his evidence alone, but equally wrong to ignore it where there is other material that tends to support what he told us.
Which is rather a good encapsulation of Saville's cautious but comprehensive approach to the entire enquiry. (Incidentally the costs of providing security, including a change of identity, for Private 027 must have been a substantial element of the huge overall cost of the Inquiry.)

There are then sixty pages or so of entirely factual reporting of the system of army and police radio communications in operation in Northern Ireland generally and on Bloody Sunday in particular, detailed but not particularly interesting. One civilian listening in to the army went off on the march, leaving his twelve-year-old daughter to change the tapes over ever 45 minutes. The lawyers for the victims tried to argue that the Paras were not using a secure system, so the fact that there was no record of the order to go into the Bogside being made meant that it was never given, but the evidence is pretty clear that they did have a secure system and everyone behaved as if the order had been duly given, so it's difficult to see what they were trying to prove.

The last 45 pages of the volume tackle an earlier theme from a different angle: what exactly were the legal powers of the soldiers in Northern Ireland? A few weeks after Bloody Sunday, John Hume and others won a court case quashing their arrest by the army, on the grounds that the arrests were made under a law of the Northern Ireland Parliament, which however had no power to instruct the British army. (I have heard, but have been unable to verify, that Paddy Ashdown was one of the soldiers who arrested Hume on the occasion in question.) Saville examines the agreement on mutual jurisdiction betweem the RMP and the RUC, and comes back to the question of a culture of institutional impunity:
194.15 ... here we should draw attention to the submissions made by representatives of the majority of the families to the effect that the agreement between the GOC and the Chief Constable “removed soldiers from the normal operation of the criminal justice system and involved the establishment of an alternative structure operated and controlled by the military”, which in turn meant that “the soldier was operating in an environment designed to assist him in protecting himself from the threat of criminal sanction”, and that this contributed significantly “to a culture within which soldiers could shoot, and kill, with impunity”, because they knew that their use of lethal force would not be subject to scrutiny.

194.16: Any attempt to establish whether there was in the period leading up to Bloody Sunday a culture among soldiers which led them to believe that they could shoot with impunity would have required a detailed investigation into the previous incidents of shooting by soldiers, apart from those on Bloody Sunday itself, and consideration of whether these incidents demonstrated that soldiers were using lethal force with impunity, without paying any or any proper regard to whether they were justified in firing. Such an investigation would have necessarily taken a great deal of time and in our view was, in the context of what was already a very large inquiry, a wholly impracticable course to take. In these circumstances, we are not in a position to express a view either as to whether or not such a culture existed among soldiers before Bloody Sunday or, if it did, as to whether it had any influence on those who fired unjustifiably on that day.
As I mentioned way back at the start, Saville's omission of any counter-argument to this theory, particularly considering the amount of space devoted to knocking down other conspiracy theories, is itself an eloquent silence.

There is one more sting to come. Saville looks at the actual powers of arrest as legally allocated to, and as actually used, by soldiers on Bloody Sunday. He identifies a serious lacuna in that, on the one hand, soldiers were legally no more capable of making arrests than any citizen, but in practice actually behaved as auxiliary policemen. Except rather less so. The whole Bloody Sunday Report concludes as follows:
196.19: Instructions sent by signal from the headquarters of the British Army in Northern Ireland to all Brigades on 13th October 1971, and reiterated on 17th December 1971, had set out the procedure for making arrests under Regulation 11, including an appropriate form of words to be used.




196.20: However, it is highly doubtful whether these instructions were followed on Bloody Sunday or that those arrested on Bloody Sunday were told either under what power they were being arrested or on what grounds the arrest was being made. In the course of the oral evidence to this Inquiry of Warrant Officer Class II Lewis (the Company Sergeant Major of Support Company, 1 PARA), there was this exchange:
“Q. The next heading in your statement is ‘Moving to the north side of Rossville Flats Block 1,’ and you describe how that came about. Could we move on, please, to B2111.018 and paragraph 116, where you say: ‘While in the lee of Block 1 I was not in a position to see the direct actions of soldiers as they were making arrests, although I knew that arrests were still being made. I saw nothing untoward. In Northern Ireland ...’ should that say ‘there were proper arrest procedures and we had to conform to these’?

A. No, sir, ‘These were proper arrest procedures and we had to conform to these’.

Q. ‘These were proper arrest procedures ...

A. Yes.

Q. What were the proper procedures that had to be followed when making an arrest in Northern Ireland?

A. To grasp the arrestee, sir, and take him as quickly as possible to the holding area with – using minimum force.

Q. That was all that the procedure involved?

A. Yes, sir.

Q. Were the soldiers expected to tell the person concerned that he was being arrested?

A. Not to my knowledge, sir, not to my recollection.

Q. Or to explain why he was being –

A. No, sir.

Q. – arrested or anything like that?

A. No, sir.

Q. Or under what legal power he was being arrested?

A. No, sir.”
196.21: In the light of this evidence it appears doubtful, either as a matter of common law or on the basis of the retrospective validation of the regulations relating to soldiers under the Special Powers Act, that the arrests made on Bloody Sunday were lawfully made. We consider elsewhere in this report the question whether arrests were made in good faith.
So in other words, the entire arrest operation, in the name of which the victims of Bloody Sunday were killed and wounded, was carried out completely illegally by the army. It's a bit surprising that this did not make it into the main conclusions of the report as publicised in June.

I probably will trudge through the legal annexes of Volume X after this, just for completeness, and so that if people ask me if I have read the whole report I can give a better answer than that I managed nine of the ten volumes.

Volume I | Volume II | Volume III | Volume IV | Volume V | Volume VI | Volume VII | Volume VIII | Volume IX | Volume X and conclusions
Tags: bloody sunday, bookblog 2010, world: northern ireland

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