Tribunals of Inquiry in Northern Ireland

Introduction

Many countries have faced situations in which their citizens demand accountability for injustices or atrocities committed by their own domestic governments, which are in violation of their human rights. The manner in which varying nations have provided for and acknowledged these facts, on their various public platforms, have been both controversial and diverse. These problems tend not to fade into obscurity if left unaddressed. History has dictated that struggle for truth has been adopted by subsequent generations, who demand responsibility from their own government in power as, in many cases, the events will have occurred at the hands of a preceding government.

The passing of time has illustrated that the quest for truth does not dissipate but can cause emotions to escalate and heighten the resolve of the aggrieved parties. Commentators suggest that establishing truth about the past is a precondition for preventing the recurrence of abuses in the future. This paper submits, in extension to this theory, that it is an essential ingredient in the desired passage towards restoration in public confidence and synonymous to the concept of justice in this modern legal world.

The focus of this question is specifically the model of Tribunal of Inquiry which is governed by Section 1 of the Tribunals of Inquiry (Evidence) Act 1921 , which is the legislation used to handle inquiries involving an official element, and truth commissions, the alternative model that has been internationally adopted, largely as a result of military agitation or liberation coups. This paper will also touch upon inquiries hosted in other countries.

Public inquiries themselves are rare and, this paper suggests, much resisted events, indeed Northern Ireland has borne witness to just three such inquiries under the aforementioned Act. These were the Scarman Inquiry in 1969, followed by the Widgery Inquiry in 1972, , the unsatisfactory outcome of which gave rise to the Saville Inquiry in 1998. Countries such as South Africa, Sierra Leone and Argentina, among others, have had their human rights redress distinctively characterized by the construction of truth commissions .

Whether this type mechanism would be more conducive to the pursuit of truth, in matters of vast public concern within the context of Northern Ireland, is a matter for this paper to explore.

The Character and Necessity of Inquiries

Walsh states that an inquiry of this nature can be established under the Act where it is resolved by both Houses of Parliament that " it is expedient that a tribunal be established for inquiring into a definite matter described in the Resolution as of urgent public importance" and continues to point out that "The Tribunals' value lies in its' capacity to persuade the public that the full facts have been established and generally assist in restoring public confidence in the integrity of government".

Inquiries may be held where one of three sets of events arise. This may be an occasion where the facts require public investigation, in that they are unknown but of immense public concern. Secondly, when the facts of an event are disputed, with conflicting versions of events which need to be reconciled, this will give rise to grounds for inquiry. Thirdly, and a theme common to truth commissions, is where the facts are known and have come to be accepted on a mass public level but still continue to be denied on an official level.

These inquiries are designed to be transparent on a public capacity, thus they do not sit in private under the provisions of the Act. The role of the inquiry is characteristically inquisitorial although critics, notably of the Saville Inquiry, have suggested that there has been an overlap into adversarial practices in this case, in particular regard to examination of witnesses' backgrounds, in the context of their lives both prior to and following 30th January 1972, as being relevant to the matter at hand. How individuals have conducted their lives in the years following Bloody Sunday appears completely remote to why unarmed civilians were shot at the hands of state bodies, in the view of this paper.

Tribunals of this kind have all the powers of the High Court, whereby they require witnesses to attend and require documents to be produced. These witnesses are afforded the same legal protection as would be extended by means of the High Court, however this can be used against them as well as to their advantage. Salmon advises that witnesses must be treated fairly. Despite the fact that action cannot be pursued in terms of slander, failure to attend the tribunal or submit documents can result in parties being held in contempt of court.

This was the case for Toby Hardnen, however, "Controversial contempt of court proceedings against a Daily Telegraph reporter who refused to name his source to the Bloody Sunday inquiry have been dropped. The decision marks a significant victory for journalists' right to protect their sources".

A spokesman for the inquiry said that although it was sensitive to journalistic ethics, it had felt that Harnden's refusal to answer its questions without legal justification had prevented the inquiry from fulfilling its duty to find the truth. This paper cannot help but to refer to the incongruity of this when one considers the issue of anonymity, which will be discussed at a later point, which, this paper suggests, was predominantly more central to the matter at hand than the submissions of Toby Hardnen.

In an effort to protect the interests of witnesses and other parties to the inquiry, the Salmon Commission suggested six 'cardinal principles.' These principles are essentially designed to ensure that witnesses are afforded as much legal representation and as many rights as are necessary to protect them during the course of the proceedings. It is submitted that these principles, although recognised by Salmon himself as slowing the proceedings somewhat, are absolutely necessary in order to maximize the truth finding potential of the inquiry. Surely it is only through witnesses feeling at ease and being properly advised that the truth will be able to be told.

A public inquiry "takes the initiative in trying to ascertain the truth" but this is not its' sole or perhaps most recognized function when examined critically. While Walsh's definition of the purpose of the inquiry model offers a clear expectation that validates it's existence, many legal commentators have levied criticism at the manner in which inquiries are conducted, and at whose hands. Hegarty