What conclusions can be drawn from the summary of the known factors, the intelligence reports that are relevant to this case and the statement of Kevin Fulton?
2.153 - From a review of the relevant factors it might be said that PIRA did not need any assistance from the gardaí to carry out the ambush and murders of the officers. Yet the timing of the ambush was so very precise that it might lead to a conclusion that it could have only resulted from information given to PIRA by the gardaí or members or sympathisers, who knew the approximate time Buchanan's car left the station and the route it was taking to the North.
It is true that the same information might have been given by the van apparently following Buchanan's car on the Edenappa Road.
A consideration of the relevant factors alone might lead to a conclusion that information must have been given to PIRA by a garda officer or employees to carry out the killings. Yet it could just as readily lead to a conclusion that PIRA neither had nor needed to rely upon collusion by garda officers or employees to carry out the killings.
2.154 - Let me turn next to the intelligence reports.
2.155 - The intelligence reports received within days and the early weeks following the murder all suggest that PIRA members committed the murders without relying upon any information that the gardaí or its employees could have supplied.
2.156 - On the other side of the ledger, there are three more recent intelligence reports to be considered. The first, received some two years after the killings, speaks of information passed on by telephone from an identifiable contact at the Dundalk station which led to the murder of the officers.
This report is ungraded. As a result, it would not be impossible but it would be difficult, if it were standing alone, to rely upon it as constituting evidence of collusion. The second report was received by the gardaí many years after the shooting. It speaks of a fruitful contact in the gardaí, who passed on information that facilitated the murder of Judge Gibson and the shooting of two RUC officers after their visit to the Dundalk Garda Station.
I must note that this report is based on double hearsay. The third report was received more than a decade after the ambush. It received a grade of "high". It speaks of an administrator, based somewhere in the Republic, who arranged meetings of gardaí and RUC officers who provided PIRA with information that led to the murders of the officers.
2.157 - The following must be kept in mind when considering these reports. The meeting of RUC officers and Garda officers that took place on March 20th was not a scheduled meeting. It was not arranged by a civilian employee or an administrator. Rather, it was the result of telephone conversations between the officers involved. There is no evidence to indicate that either a civilian employee or an administrator would have been in a position to notify PIRA of the meeting. Neither a civilian employee nor a garda officer could have given any notice to PIRA regarding the RUC officers until Supt Buchanan's car was parked in front of the Dundalk station. At that stage it was just as easy for "dickers" or PIRA sympathisers to give notice of the presence of the RUC officers as it was for Garda officers or employees.
2.158 - Nor can it be forgotten that the first report is ungraded, the second was received many years after the murders and is based on double hearsay, the third was received more than a decade after the murder and, although rated as "high", it casts a geographical net well beyond Dundalk, potentially wide enough to encompass all of the Republic.
2.159 - The factors and the intelligence reports received shortly after the murder considered by themselves might be thought to point to a conclusion that PIRA did not need any information from or collusion by the gardaí to set up the ambush and carry out the murders.
2.160 - The statement of Kevin Fulton must now be added to the mix and carefully considered. Standing alone it could be found to constitute evidence of collusion on the part of a garda officer. It would explain the great precision of the timing of the ambush. It would as well add credence to the second of the recent intelligence reports which spoke of a garda source in the Dundalk station and, perhaps to a lesser extent, the third report which also spoke of a garda leak.
2.161 - The intelligence report received from the PSNI on September 22nd, 2003, must also be considered. It will be remembered that this report was received by the RUC in the mid-1980s from a person they considered to be a "fairly reliable source". It indicated that Garda B was passing information to PIRA. This might be found to constitute support for or confirmation of the statement of Kevin Fulton.
2.162 - I have considered carefully all the relevant material, the relevant factors, the intelligence reports and the Fulton statement. I have concluded that the documents reveal evidence that, if accepted, could be found to constitute collusion. As a result there must be a public inquiry.
2.163 - If it is found that there was a garda officer or employee that provided information that facilitated the murder of Breen and Buchanan then that should be known. Obviously it is something of great importance to the investigation of their murders. As well, it would be an important factor in considering the safety of the PSNI officers who today must cross the Border in the course of their duties to liaise with the gardaí.
From what I have seen it would appear that there is now excellent co-operation between the gardaí and PSNI. Nothing should be done or omitted that would jeopardise that co-operation.
2.164 - I should add I am satisfied that I have been provided with, or granted access to, all the relevant intelligence documents.
The basic requirements for a public inquiry
2.165 - When I speak of a public inquiry, I take that term to encompass certain essential characteristics. They would include the following:
- An independent commissioner or panel of commissioners.
- The tribunal should have full power to subpoena witnesses and documents, together with all the powers usually exercised by a commissioner in a public inquiry.
- The tribunal should select its own counsel who should have all the powers usually associated with counsel appointed to act for a commission or tribunal of public inquiry.
- The tribunal should also be empowered to engage investigators who might be police officers or retired officers to carry out such investigative or other tasks as may be deemed essential to the work of the tribunal.
- The hearings, to the extent possible, should be held in public.
- The findings and recommendations of the commissioners should be in writing and made public.
The importance and necessity of holding a public inquiry in this case
2.166 - During the Weston Park negotiations, which were an integral part of the implementation of the Good Friday accord, six cases were selected to be reviewed to determine whether a public inquiry should be held with regard to any of them.
2.167 - This case, like that of Finucane, Hamill, Wright, Nelson and the Gibsons, was specifically selected as one of those to be reviewed to determine if there was collusion and, if so, to direct a public inquiry.
In light of this provision in the original agreement, failure to hold such an inquiry as quickly as possible might be thought to be a denial of the original agreement, which appears to have been an important and integral part of the peace process. The failure to do so could be seen as a cynical breach of faith which could have unfortunate consequences for the peace accord.
2.168 - Further, if, as I have found there is in this case, evidence capable of constituting collusion, then members of the community would undoubtedly like to see the issue resolved quickly. Indeed a speedy resolution is essential if the public confidence in the police and the administration of justice is to be restored.
In this case only a public inquiry will suffice. Without public scrutiny, doubts based solely on myth and suspicion will linger long, fester and spread their malignant infection throughout the Republic and the Northern Ireland community. No prosecutions appear to be contemplated.
Therefore the public inquiry should proceed as soon as it is reasonably possible to do so.
2.169 - Concerns may be raised regarding the costs and time involved in holding public inquiries. My response to that is threefold:
1. If public confidence is to be restored in public institutions then in some circumstances such as those presented in this case a public inquiry is the only means of achieving that goal.
2. The original agreement contemplated that a public inquiry would be held if the requisite conditions had been met. That there is evidence which if found to be true is capable of constituting collusion has been established in this inquiry. Thus, in this case, the requisite condition has been met.
3. Time and costs can be reasonably controlled. For example, a maximum allowance could be set for counsel appearing for every party granted standing. That maximum amount should only be varied in extraordinary circumstances duly approved by a court on special application.
Counsel and the commissioner or commissioners should undertake to devote their full time to the inquiry until it is completed.
If the commissioner found that the actions of a counsel were unnecessarily and improperly delaying the proceedings, the costs of that delay could be assessed against that counsel or his/her client.
2.169 - These are simply suggestions for controlling the unnecessary expenditure of public funds. Obviously there are many variations that could be played upon the important theme of cost reduction of public inquiries. If implemented, they could reduce the burden on the public purse and lead to greater harmony and fewer discordant notes in the inquiry process.
2.170 - The Good Friday Accord and the Weston Park Agreement, which set out the selected cases as an integral part of the agreement, must have been taken by both governments to be a significant step in the peace process.
Six cases were chosen and the agreement was negotiated and entered into on the basis that, if evidence which could constitute collusion was found, a public inquiry would be held. In those cases where such evidence has been found, the holding of a public inquiry as quickly as is reasonably possible is a small price to pay for a lasting peace.
2.171 - At the time of the agreement, the parties would have had in mind a public inquiry as that term was known in 2001. Yet all reasonable people would agree that an inquiry should proceed as expeditiously and economically as possible.
They are not designed, and should not be considered, as a means of enriching the legal profession. No reasonable person could object to strictures being placed on the inquiry to ensure these goals. These strictures would benefit all.