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30 May 2002 Edition

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Infliction will not testify at Bloody Sunday Inquiry

BY FERN LANE


The Bloody Sunday Tribunal ruled on Monday that the agent code-named 'Infliction' will not have to give evidence in person to the inquiry. Lord Saville said that to require him to do so would breach his rights under Article 2 of the Convention of Human Rights.

In response, legal representatives for the families of the dead and injured and counsel for Martin McGuinness asked that Infliction's evidence, contained in submissions from the British security services and completely uncorroborated, should be dismissed. Michael Mansfield QC told the inquiry that the allegations made by Infliction, claiming that Martin McGuinness "confessed" to having fired the first shot on Bloody Sunday, were "not worth the paper they are written on". Mansfield argued that the decree of secrecy around the allegations, and the inability of counsel to cross-examine either Infliction or the security services agents and to properly assess the motivation of the security services in feeding such information to the tribunal - would lead to an "Alice in Wonderland" situation.

Peter Cush, for Martin McGuinness, said that admission to the tribunal of Infliction's claims, without the ability of counsel to question him or the British agents, would leave his client "deaf, dumb and blind" in trying to answer the accusation. "In coming to give evidence to this Tribunal, one of his strong wishes was that he would give the lie to the allegations which have been made against him," said Mr Cush. "He was anxious to see where the allegation came from, to hear the evidence being given and to cross-examine in relation to the evidence, so that he could defend his position. In effect, now that we know Infliction is not to be called, he has been rendered deaf, dumb and blind in the face of a very serious allegation."

He questioned how "this distorted procedure" could ever produce a just and open finding in relation to the allegation.

Mansfield also argued that the Tribunal should be extremely circumspect when reaching decisions on secrecy. The fact that the Tribunal is making decisions on the basis of information provided by the security services, he said "does not command our complete confidence.

"The Security Service is not an independent or reliable source of advice or information, for two reasons," he said. "First of all, because it is a security agency of the state, which is responsible for the deaths and injuries that occurred on Bloody Sunday. Secondly, because the Security Service, and indeed the Secret Services as a whole, were directly involved in both the military and the political apparatus of the Northern Ireland Administration in 1972."

David Shayler, the MI5 whistleblower, who has provided a statement to the inquiry, is on record as stating that he believes "any serving officer will be inclined to plead memory failure or tell outright lies to investigators, as they know telling the truth may embarrass or expose their bosses, from whom they have no legal protection or trade union representation".

Shayler has also pointed out the ludicrous position of the security services with regard to the anonymity of its agent, arguing that if Infliction's claims were true, his identity would already been known by Martin McGuinness, unless of course McGuinness had also made a similar "confession" to a great many other people.

Barry MacDonald, for some of the families, said that "it is for those sort of reasons that when dealing with secret services, who trade in deception, counter-propaganda, psychological operations", the Tribunal should not be "naïve" in its approach to applications for secrecy.


Families challenge secrecy and exclusion


Lawyers for the families of the Bloody Sunday dead and injured have asked Lord Saville to reject an application by the security services for a time-delay procedure which would give them the right to vet evidence given by Officers 'A' and 'B' (who reported British agent Infliction's allegations).

Counsel for MI5, Mr Sayle, claimed on Monday that there is a danger that either of the men could inadvertently or "maliciously" reveal the identity and whereabouts of Infliction.

Antony Gifford QC, for the families said that to permit a time-delay would lead to a "farce of participation". He said: "Do not fool the public by making it appear that the interested parties have the rights to participate in a process, when in fact their rights are subject to the dictat of the Security Services; what they are prepared to see asked, what they are prepared to see published and excluding both the interested parties and their representatives from any meaningful participation in the process."

Barry MacDonald, counsel for some of the families, also expressed his wider concern about the long line of legal applications made by the British state and its security service agents which are, he said "designed to compromise, and have compromised, the openness and transparency of this Inquiry."

"First of all, the RUC Officers A, B and C were granted screening. Then soldiers were granted anonymity; that is of course by the Court of Appeal in England, who now exercise a supervisory jurisdiction over this Tribunal in the form of judicial review, so that the Tribunal's international and objectively independent character has been undermined."

He went on: "The Tribunal has upheld Public Interest Immunity claims by the Minister of Defence in respect of parts of six intelligence summaries; anonymity was then extended to deceased soldiers; three more officers of the RUC, F, G and H, were granted screening; Observer B was then granted anonymity, his statements were redacted and it was ordered he would be allowed to give his evidence by videolink and, of course, all the people mentioned by him in his statement are referred to by a code letter.

"Then, in December 2000, the Home Secretary applied for Public Interest Immunity in respect of documents concerning "Infliction," Observer B and Security Service officers A, C, David, James and Julian; there has been no ruling yet in relation to that application. Then, in relation to venue, the Court of Appeal in England ordered the Tribunal to take the soldiers' evidence in Great Britain. Then, more RUC officers were granted screening just in the last few weeks and, indeed, even a forensic scientist, Dr Martin, applied for screening.

"The cumulative effects of all that should not be underestimated," continued Lord Gifford, "because secrecy and exclusion breed suspicion and mistrust and they erode public confidence. They also arguably infringe the Article 2 rights of the families whom I represent in respect of their requirement to have an independent, accessible and effective investigation."
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