Checks and Balances

Those who see the British political system as an example to the world — the “cradle of democracy,” no less — often refer to the checks and balances that are supposed to prevent any abuse of power. If one part of the British state poses a threat to civic freedoms, another will step in to correct the injustice.

There is also supposed to be a check on executive power from outside the state itself: the “fourth estate,” represented by the British media. In the aftermath of Bloody Sunday, however, Britain’s leading broadsheet newspapers rushed to hold the marchers responsible for their own deaths. The Times absolved the army of any blame in its editorial:

Those who are inciting the Catholics to take to the streets know very well the consequences of what they are doing. Londonderry had a taste of those consequences last night. The dead are witness to them.

The Daily Telegraph insisted that the civil rights movement was little more than a front for the Irish Republican Army (IRA):

It does not murder; it simply creates the conditions favorable to the murders attempted by others and leaves the army in the last resort with no alternative but to fire. Its courage may be less than that of the IRA; its guilt is not.

The Guardian ignored the account of its own reporter, Simon Winchester, who had been in Derry for the march. Its lead writer also blamed the people who had organized the civil rights demonstration:

The disaster in Londonderry last night dwarfs all that has gone before in Northern Ireland. The march was illegal. Warning had been given of the danger implicit in continuing with it. Even so, the deaths stun the mind and must fill all reasonable people with horror. As yet it is too soon to be sure of what happened. The army has an intolerably difficult task in Ireland. At times it is bound to act firmly, even severely. Whether individual soldiers misjudged their situation yesterday, or were themselves too directly threatened, cannot yet be known. The presence of snipers in the late stages of the march must have added a murderous dimension. It is a terrible warning to all involved.

After Bloody Sunday, the Sunday Times could have run an excellent, thoroughly researched article by its reporter Murray Sayle that was ready within a week. Sayle’s work would have removed all excuse for evasive agnosticism about the circumstances of the massacre. But his editors decided to spike it, citing concerns that it might prejudice the inquiry to be chaired by Lord Widgery. The London Review of Books finally published Sayle’s article three decades later.

“Entirely Satisfied”

Widgery was thus helping to conceal the truth before he had even got down to work in earnest. There was considerable debate in Derry about whether people should cooperate with the inquiry at all. The prevailing view held that it would be impossible for any judge, no matter how prejudiced, to ignore the sheer volume of evidence that discredited the army’s version of events. This seemed like a reasonable argument at the time; however, those making it had underestimated Lord Widgery’s imaginative prowess.

In his 1992 book, Bloody Sunday in Derry: What Really Happened, Eamonn McCann composed a devastating rebuttal of the Widgery report, which we can only summarize briefly here. Widgery’s treatment of what happened in Rossville Flats, where the Paras claimed their first victim, seventeen-year-old Jack Duddy, gives a flavor of his methodology.

The soldiers claimed to have come under intense fire from IRA snipers; one reported hearing about eighty shots. These gunshots were supposed to have come from several directions in a courtyard that was surrounded on three sides by nine-story blocks of council flats. The soldiers reported taking cover behind their armored personnel carrier (APC) — a vehicle that, as McCann dryly observed, “is considerably more bulky than, say, a Ford Transit van.” Yet not one of these alleged IRA bullets managed to hit its target, and none of the soldiers called for backup during this supposedly life-threatening encounter.

McCann summed up their testimony as follows:

The APC drives into the Rossville Flats courtyard. The soldiers disembark to arrest hooligans. They immediately come under fire from the flats. The flats are, at the nearest point, within 15 yards of the APC. Some of the soldiers take cover behind the vehicle. None of them is hit. The APC is not hit. The senior man on the spot does not bother to tell anyone that any of this is happening. Afterwards, every soldier’s account of the pattern of hostile fire contradicts every other soldier’s account.

This was not the only eyewitness testimony available to Lord Widgery. The list of civilian eyewitnesses who contradicted the army version included a Catholic priest, a schoolteacher, a Guardian reporter, and an English-born veteran of the Royal Navy. It would be difficult to imagine a more respectable cross section of society. Widgery dismissed their evidence out of hand and accepted what the soldiers had told him despite its glaring implausibility:

I am entirely satisfied that the first firing in the courtyard was directed at the soldiers. Such a conclusion is not reached by counting heads or by selecting one particular witness as truthful in preference to another. It is a conclusion gradually built up over many days of listening to evidence and watching the demeanour of witnesses under cross-examination.

As McCann noted, Widgery made no attempt to justify this assessment on logical grounds: “His reference to the demeanour of witnesses and his ‘many days’ (three days in fact) of listening to the relevant evidence is his entire account of his process of reasoning.”

After a torrent of verbiage about the imaginary gunfight in the Rossville Flats courtyard, Widgery suddenly dried up when it came to Glenfada Park, where the Paras had discharged two-fifths of all the bullets fired by soldiers that day, killing four people and wounding five more. Having composed passages A) and B) about events in Rossville Flats and nearby Rossville Street, Widgery omitted to include a passage C) about Glenfada Park. His findings about what happened in the area came in a later section dealing with the men who had been killed there.

Widgery began by announcing that he would “deal with the cases of these four deceased together because I find the evidence too confused and too contradictory to make separate consideration possible.” He went on to declare that he found it “difficult to reach firm conclusions” when confronted with “such confused and conflicting testimony.” Yet he rejected a claim by “Soldier H” that he had shot repeatedly at a man firing with a rifle from the window of a nearby flat: “19 of the 22 shots fired by Soldier H were wholly unaccounted for.”

If, by Widgery’s own assessment, one of the soldiers had brazenly lied about nineteen of the shots he discharged in a compressed space where four men died from bullet wounds, it does not require any great imaginative leap to put two and two together. McCann’s judgement is unanswerable: “He took these four cases together and dealt with them perfunctorily precisely because the evidence was in no way confused or contradictory, but definite and devastating. This is the reason there is no passage C).”

“A Balance of Probabilities”

In the same section, Widgery gave credence to a claim by British soldiers that they had found nail bombs on the body of teenager Gerald Donaghy. Donaghy had been brought, badly injured, into a nearby house, where a doctor examined him. A Belfast Telegraph reporter was also present at the scene. Nobody saw any nail bombs in the pockets of his tight-fitting jeans.

Some of the people in the house attempted to bring Donaghy to a hospital. Soldiers stopped their car at a checkpoint and brought it to a first aid post, where the medical officer pronounced Donaghy dead. He didn’t find any nail bombs, either. Mirabile dictu, a soldier then claimed to have discovered four such projectiles on the corpse, one of which was sticking out of Donaghy’s pocket, visible at the merest glance.

Widgery’s evaluation of this evidence noted that there were two possibilities: either all the people who examined Donaghy before the soldiers did, including two doctors, had missed the nail bombs, or else somebody had planted the evidence on his corpse afterwards. Widgery declared this to be a “relatively unimportant detail” but summoned the energy to pronounce judgement on the matter since it was “no doubt of great concern to Donaghy’s family”:

I think that on a balance of probabilities the bombs were in Donaghy’s pockets throughout. His jacket and trousers were not removed but were merely opened as he lay on his back in the car. It seems likely that these relatively bulky objects would have been noticed when Donaghy’s body was examined; but it is conceivable that they were not and the alternative explanation of a plant is mere speculation. No evidence was offered as to where the bombs might have come from, who might have placed them or why Donaghy should have been singled out for this treatment.

McCann’s rebuttal of this argument is worth quoting at length:

Widgery’s complaint about the absence of evidence as to the origin of the bombs and the identity of the person who planted it is nonsensical. The only persons who could have tendered this evidence would have been those responsible for the planting. It was not to be wondered at that they did not come forward. Widgery’s final reason for rejecting the plant theory — that there was no evidence why Donaghy should have been singled out for such treatment — suggests a lack of concern for both logic and common sense. One wonders what Widgery might have said to the defence counsel in a bank robbery case who offered as an argument for his client’s innocence that there was no evidence he had any particular grudge against that particular bank.

On the basis of such reasoning, Widgery confidently declared his “strong suspicion” that some of those killed or injured by the Paras “had been firing weapons or handling bombs in the course of the afternoon.”

“Isolated Allegations”

The Widgery report was an artful piece of work, lawyerly in the most pejorative sense of the term. Its author would not have attained the rank of chief justice without excellent rhetorical skills and a razor-sharp mind. He deployed those talents in the service of a cover-up.

One of Widgery’s favorite tricks was the confidently stated non sequitur. At the very end of the report, Widgery dismissed all claims that soldiers had been “firing carelessly from the hip or shooting deliberately at individuals who were clearly unarmed.” These were, he said, “isolated allegations in which the soldier was not identified.” As McCann pointed out, the word “isolated” had no relevance to what was being discussed:

The most obvious meaning which might attach to it would refer to the allegations having been made separately by different individuals. But how else might such allegations be made so that Widgery might accord them some seriousness — by a massed choir of Bogsiders chanting in unison? Similarly, to give weight to the fact that the people of the Bogside and Creggan could not identify individual Paras who opened fire is nonsensical. What did Widgery expect? Names? With his ready agreement, the solders did not give their names to his Tribunal.

Widgery will have known perfectly well that his brief conclusions would count for more in the propaganda war than the tortuous reasoning on which they were purportedly based, unfolded over the space of 20,000 words. He accused the march organizers of having “created a highly dangerous situation in which a clash between demonstrators and the security forces was almost inevitable” and claimed to have found “no reason to suppose that the soldiers would have opened fire if they had not been fired upon first.”

The Daily Mail greeted the report with an editorial hoot of triumph:

Against cynical propagandists the British Government replies with judicial truth. It is like trying to exterminate a nest of vipers by the Queensberry rules. Even so, over the past two and a half years of mounting terrorism, the record shows — and it is a record which now includes Lord Widgery’s report — that our troops are doing an impossible job impossibly well.

Eamonn McCann’s summary was rather more to the point. He dismissed the idea that Widgery’s social and political background had prevented him from forming a clear picture of what happened that day:

The inconsistencies, illogicalities and untruths in the report cannot be attributed to an inability to discover and tell the truth. The distance between the report and the reality yawns far too widely for that. It is a politically motivated unwillingness to tell the truth, not an inability to see the truth, which explains the Widgery report.

Widgery’s judicial colleagues applied the same standards of logic and evidence that he had laid down in other notorious cases related to the Irish conflict, such as those of the Birmingham Six and the Guildford Four. In fact, it was Widgery himself who rejected the first appeal by the Six, claiming that they had suffered “no ill treatment beyond the normal” when police officers tortured them into signing false confessions.

The Rule of Law

Half a century later, the list of those willing to credit the army’s original version of events about Bloody Sunday is thankfully short. But there has still been no reckoning with the implications of the Widgery report for the British legal system. In 2010, one of Widgery’s successors as Lord Chief Justice, Tom Bingham, published a widely praised book called The Rule of Law. The name “Widgery” was entirely absent from its pages.

Bingham’s omission was all the more striking because he did not write as a complacent reactionary, arguing, for example, that the 2003 invasion of Iraq was unlawful and criticizing Tony Blair for belittling the importance of civil liberties in the face of terrorism. He also strongly defended the Human Rights Act of 1998 against criticism from British Conservatives. Yet when it came to the most fundamental human right — the right to life — and the abject failure of his esteemed predecessor to uphold that right, Bingham observed a tactful silence.

Perhaps the lessons of Widgery cut too close to the bone. It is one thing for judges to present themselves as guardians of law and liberty against the abuses of political officeholders. It is quite another to recognize that judges themselves have marched in lockstep with those responsible for the murder of innocent people.

Lord Saville’s 2010 report, and David Cameron’s acknowledgment that the killings were “unjustified and unjustifiable,” did not mean that the guardrails of liberal democracy had belatedly started to work. By the time Saville completed his work, Sinn Féin was part of a regional power-sharing government under British rule, and the majority of Irish nationalists now supported the Good Friday Agreement. It would have been entirely counterproductive for the British state and its ruling class to publish a report doubling down on Widgery’s fabrications.

The real test of those guardrails had come in 1972. Not only was that year the bloodiest one of the Troubles — it was also a time of heightened social conflict in Britain itself, with the first miners’ strike delivering a sharp blow to Edward Heath’s government. Over the course of the decade, right-wing commentators openly discussed the idea of using the British army as a tool of domestic repression.

In 1974, the future Sunday Telegraph editor Peregrine Worsthorne went to Chile on a trip that its military junta paid for. Worsthorne claimed that the junta enjoyed “very widespread popularity among all classes” and even praised the conditions in a forced labor camp to which he paid a visit. He concluded his article with an emphatic message for the home front:

All right, a military dictatorship is ugly and repressive. But if a minority British Socialist Government ever sought, by cunning, duplicity, corruption, terror and foreign arms, to turn this country into a Communist State, I hope and pray our armed forces would intervene to prevent such a calamity as efficiently as the armed forces did in Chile.

When the Labour MP Chris Mullin composed his novel A Very British Coup in 1982, he gave its arch-conspirator the name “Sir Peregrine.”

This was the climate of opinion in which Lord Widgery got to work. He would have wanted to make it absolutely clear to soldiers of the British Army that they would face no legal consequences for gunning people down in broad daylight on the streets of the United Kingdom. Widgery was determined to uphold the rule of power, not the rule of law, and every paragraph of his report bears the stamp of that objective.