British army intelligence reports relating to Bloody Sunday should be revealed in full to the tribunal of inquiry, even though the names of security force informers would be revealed and their lives could be put at risk, it was argued at the hearings in Derry yesterday.
A number of sensitive British army documents have been supplied to the inquiry with sections blanked out which are said to identify informers and also detailed military assessments of IRA membership, structures, armaments and plans in Derry in 1972.
Lawyers for relatives of victims of the Bloody Sunday shootings urged the tribunal, chaired by Lord Saville, to require the Ministry of Defence to provide unexpurgated copies of this material.
However, counsel for the ministry argued that the complete documents should be disclosed only to the three members of the tribunal. Mr Philip Havers QC said wider disclosure of the material could have consequences "of the gravest kind" for former informers.
One of the tribunal's counsel team, Mr Alan Roxburgh, said the ministry was seeking immunity for the material on public interest grounds. The claim was made under British Public Interest Immunity (PII) provisions.
He said the ministry had pointed out that it was the IRA's practice to kill informers and reprisals might also be taken against their families, even if the informers were now deceased.
It was also claimed disclosure might deter further informers from coming forward, and could thus "seriously damage national security".
Counsel said the question was whether the material should attract public interest immunity, having regard to the damage that might be done to the public interest by its disclosure, or whether that should be outweighed by the public interest involved in the tribunal's present task.
He suggested the tribunal members examine the unexpurgated documents to assess the damage that would be caused to the public interest by disclosure.
Mr Barry MacDonald, counsel for the family of Mr James Wray, said it was vitally important that the victims' families be made aware of all the facts that were available to the tribunal.
"We readily concede the relevance of the need to protect the anonymity of informers but it is outweighed if there is a possibility of a miscarriage of justice," he said. "We are not seeking to know the identity of any informer in this case. We are seeking to know information which is available to the tribunal." The innocence of the victims was a direct issue and there could be a miscarriage of justice in relation to them if material was withheld.
"This is the nearest that the victims of Bloody Sunday will ever get to a criminal trial, because they were sentenced, and indeed executed, by soldiers on that day," counsel said.
Mr MacDonald told the tribunal: "This inquiry concerns a massacre of innocent civil rights protesters by a highly disciplined unit of the British army, under the eyes of its commanding officer, with the commander of land forces in close attendance, and in the course of a planned operation sanctioned at the highest levels of government at Stormont and Westminster."
Counsel said there were indications the documents would refute the soldiers' case that the IRA planned to shoot soldiers from the crowd and that the soldiers fired only at gunmen or nail bombers.
Lord Saville said that the tribunal would examine the documents and then consider the various points made to it.
The inquiry then began consideration of applications on behalf of the Daily Telegraph for summonses requiring the production of documents and information to be set aside.
Mr Christopher Clarke QC, senior counsel to the tribunal, said the matter concerned two articles in the newspaper last May by Ireland Correspondent Mr Toby Harnden. The articles quoted two unnamed soldiers who took part in the operation on Bloody Sunday. It was indicated that unless their identities were protected, their full account of the events, given to the Daily Telegraph, would not be given to the inquiry.
Mr Clarke said it was implied that the Daily Telegraph, and Mr Harnden in particular, had received a full account, which was not to be given to the inquiry unless the identities were protected, and if this was refused the soldiers would omit details of their actions.
The inquiry had been informed by Mr Harnden that the soldiers agreed to be interviewed only on the strict understanding that their identities would be protected, and that he had subsequently destroyed his notes and taped material.
Mr Andrew Nicoll QC, for the Daily Telegraph and Mr Harnden, said the journalist was willing to provide such details concerning the interviews as would not tend to reveal the names of his sources.
In evidence to the tribunal, Mr Harnden confirmed he had destroyed his notes and tapes. In cross-examination by counsel for the tribunal, he agreed he had not signed a letter sent to the tribunal's solicitors in his name. The letter was signed on his behalf in his absence and he had not approved its contents.
Lord Saville asked Mr Nicoll to take instructions overnight as to why, on the face of it, the Daily Telegraph sent a letter intended to deceive the tribunal's solicitor into believing he had received a letter from Mr Harnden.
The inquiry continues today.