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25 April 2002 Edition

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Secret papers and British guilt


Secret government documents have revealed British plans to cover up their role in the 1974 Dublin and Monaghan bombing, in which 33 Irish citizens were killed and many more seriously injured.

A confidential letter written by the British Treasury Solicitor's office to the British Foreign Office and leaked to a Sunday newspaper shows how the British authorities are plotting to thwart any legal proceedings by the families of victims.

In what amounts to an admission of guilt, lawyers acting for the British government proposed citing the controversial defence of 'sovereign immunity', which protects governments and their representatives from being prosecuted for criminal acts within their own jurisdiction and most other European states.

'Sovereign immunity' was last cited in a British court in 1998 by lawyers acting on behalf of the former Chilean dictator General Augusto Pinochet. Pinochet was facing extradition to Spain and prosecution for state-sponsored torture and mass murder carried out under the dictatorship. Evoking 'sovereign immunity' is clearly the last refuge of a totally discredited regime.

The letter considers two possible scenarios. If lawyers acting on behalf of the relatives and victims cite the British government as legally responsible, British lawyers intend to block proceedings by disputing the Dublin courts' jurisdiction. In this way, British lawyers could introduce the doctrine of 'sovereign immunity' as a mechanism to withdraw cooperation with the court.

But as another internal document exposes, the British lawyers are unsure of the status of the doctrine of sovereign immunity within Ireland. The letter notes that unlike Britain, Ireland was not a signatory to the European Convention on State Immunity. However, another memo detailing a message from the British Foreign Office suggests the doctrine could be used in Ireland.

The memo refers to an application by an Irishman against the Attorney General of Gibraltar and "in that case the UK government had successfully claimed sovereign immunity in the Irish courts".

But the British are hoping that their worse case scenario can be avoided by allowing individual members of the Crown forces to take the rap. "The question may be whether the relevant persons can be said to have acted 'on a frolic of their own' writes Sean Martin, for the Treasury Solicitor.

"If there was evidence that members of the security forces had assisted or been involved in the 1974 bombings, we would presumably argue that such involvement was condemned by the British government and could not be regarded as an aspect of State activity," writes Martin to Paul Berman, the legal advisor to the British Foreign Office.

The letter was written on 14 October 1999 and hand delivered because of its 'sensitivity'. Two weeks before, on 24 September 1999, the Treasury Solicitor's official sought legal advise in Dublin. The letter to McCann Fitzgerald refers to earlier letter in which the question of sovereign immunity was touched upon.

Martin asks the solicitor to explain in what circumstances the defence is available in Ireland. "In the UK the question of state immunity is governed by the State Immunity Act of 1976, which implements the 1972 European Convention on State Immunity. Am I right in thinking that Ireland is not party to the European Convention and has no legislation in this area? If that is correct I would welcome your guidance on how Irish courts approach the question," writes Martin.

But British government officials faced a further dilemma. If they authorised McCann Fitzgerald to act as their agents, would it prevent them from arguing that the Irish courts do not have jurisdiction?

"The FCO's concern was that we should not nominate McCann Fitzgerald to accept service of proceedings until we have received advice that acceptance of service would not prejudice our ability to claim a state immunity defence," writes Martin in another memo dated 24 September 1999.

The flurry of activity by British officials followed a letter written on behalf of relatives of the bomb victims by lawyers Brophy & Co to the British Embassy in September 1999. The letter threatened to sue the British government to recover damages.

Commenting on the weekend revelation, Jane Winter of British Irish Rights Watch described the documents as "truly startling" and said they provided clear evidence that the British government had something to hide.

Ó Caoláin raises bombings in the Dáil

Sinn Féin TD Caoimhghín Ó Caoláin has called for further pressure on the British government to cooperate with the inquiry into the Dublin and Monaghan bombings in the wake of revelations in the Sunday Tribune indicating the involvement of British forces. He raised the issue with Bertie Ahern in the Dáil this week in what was almost certainly the last Taoiseach's Questions before the general election.

The documents revealed at the weekend show that lawyers for the British government were preparing to invoke 'sovereign immunity' as a defence in the case to be taken against them by survivors and bereaved relatives of those killed in the Dublin and Monaghan bombings of 17 May 1974 in which 33 people died. (The case was later dropped when the Irish government set up the inquiry under Jusitce Barron.) Such a defence would amount to an admission that agents of the British government were involved as 'sovereign immunity' is invoked in international legal actions by a government to protect itself from culpability for the actions of its agents.

In the Dáil on Wednesday Caoimhghín Ó Caoláin asked the Taoiseach if he was aware of these revelations. The Taoiseach said that he was not aware of the status of the documents. He did not comment on the implications of the revelations but referred to the ongoing initial inquiry into the bombings by Justice Barron.

In the Dáil last week Ó Caoláin had asked the Taoiseach if the RUC and the other relevant arms of the British administration had supplied the necessary information to Justice Barron and if the inquiry is still being stifled by non-co-operation from the British administration. The Taoiseach said Justice Barron received "an enormous amount of information, data and files". This week in the Dáil, the Taoiseach clarified his remarks and said that the "enormous amount of material" referred to all the material Barron had received, of which the files handed over by the British formed only a part. The Sinn Féin TD pointed out that the impression had been given that much more was received from the British but it was clear now that the co-operation was still deficient.

Commenting on the 'sovereign immunity' revelations, Caoimhghín Ó Caoláin said:

"We learn now that the British government was preparing to invoke international law to protect itself from prosecution because of the actions of its agents. This is virtually an admission of guilt."

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