Bloody Sunday

Evan Whitton advises on how to run a commission of inquiry ... Special prosecutor absolutely essential ... Voices from the past - Mike Ahern and Doug Drummond ... Lord Widgery's cover-up ... Saville The Stonecutter

The Bloody Sunday fiasco (see below) raises the question: what is the most cost-effective way to run an inquiry? That is, how to get the most truth (and justice) at the least cost to endlessly put-upon taxpayers.

Seats of learning in the English-speaking world are no help. They have signally failed to set-up schools to enable truth-seeking inquests, Royal Commissions, and standing commissions on corruption to be properly staffed and run.

Pending the establishment of those schools, here are some suggestions:
 
1. Two intelligent non-lawyers to bookend the chairman

Non-lawyers are needed because common lawyers, including judges and academics, find it hard to recognise the truth.

Their brains are cluttered - not to say addled - with all those truth-defeating devices, including ways of hiding evidence, which judges have concocted since lawyers first started defending criminals in the 18th century.

2. The chairman to question witnesses
 
The chairman's task is to manifest the truth.

Counsel assisting should supervise investigators and build-up dossiers from which the chairman can question witnesses.

3. A small pool of journeyman lawyers to advise suspects

Wood: Royal CommissionerIt appears that Justice Jim Wood invented this money-saving system for his 1994 inquiry into police corruption in NSW.

A suspect's evidence cannot be used against him at a subsequent trial, but he can be done for perjury if he lies to the inquiry.

The only sensible advice a lawyer can thus give a suspect is to tell the truth. You don't need the leader of the Bar for that.

4. Chairman to stop sophistry in its tracks

Common law schools train lawyers to use questioning in two ways, to manifest the truth and to obscure it by sophistry, the art of persuading others to believe what the sophist knows is false. In short, the art of lying.

Lawyers can become habituated to sophistry. Criminal defence lawyers have to resort to sophistry in almost every case because almost all accused are guilty. At civil trials, lawyers have to use sophistry in perhaps half the cases.

At his 1987-89 inquiry into corruption in Queensland, the Hon Gerald Fitzgerald QC intimated to lawyers for suspects - but not in so many words - that they were there to help him find the truth, and that he would sit them down if they started on the sophistry,.

Jim Wood got the same message across at his corruption inquiry.

5. Special Prosecutor

An inquiry involving criminality is to a degree a waste of time and taxpayers' money unless it is followed by a Special Prosecutor.

Trimbole: chucklingJustice Phil Woodward manifested the truth about the 1977 murder of politician Donald Mackay by the 'Ndrangheta.

The Mob would probably have been decimated by a Special Prosecutor. None was appointed. No mobster was charged. Bob Trimbole is probably still chuckling.

The Fitzgerald inquiry
 
Corruption was endemic in Queensland since 1824. After all, it was a British colony. 

It was thus not altogether surprising that in the 1980s the Premier, Sir Johannes Bjelke-Petersen, and his police chief, Sir Terry Lewis, were organised criminals.

What did surprise was that, with Bjelke-Petersen out of the country in 1987, Police Minister Bill Gunn announced an inquiry into police corruption, and promised to give the chairman, Fitzgerald QC, whatever he needed.

Fitzgerald adopted only two of the five suggestions above, but his achievement was remarkable. He got the inquiry widened to cover politics, and began to close in on Bjelke-Petersen and other National (formerly Country) Party politicians.

Bjelke-Petersen naturally tried to close the inquiry down in November 1987, but he was ousted by the party.

Mike Ahern, who happened to be honest, became Premier.

Having manifested a tsunami of corruption, Fitzgerald ended formal hearings on December 9, 1988.

Ahern speaks

Ahern: $20 mill all up for FitzgeraldI recently asked Ahern for help with this piece. I give his replies verbatim.

How much did the inquiry cost?

"To the best of my recall, his [Fitzgerald's] personal fee was $2.1m. I have heard that the round up cost of all of it was $20 million. Includes paid barristers, staffers, rents, revolvers, snoop devices, hankies etc."

On a Special Prosecutor:

"The Fitz Caravan had reached the stage where 'wotif prosecutions?' had to be answered. I was asked in my capacity as minister responsible to advise. I consulted government counsel Mr [Ian] Callinan [later of the High Court] who agreed with me that a Special Prosecutor should be appointed.

With some ministers facing the prospect, it seemed to me to be completely sensible for the Attorney-General to surrender that role to an independent and qualified person.

When this became known in the system, I had to receive a visit from the attorney general Paul Clauson and [Justice] Dept Undersec Brian Stewart, who expressed alarm that a special prosecutor was being recommended. Clauson argued he should do it.

Quickly to point, he asked what if Joh was prosecuted. I replied that he should be treated as every other citizen before the law and that I did not want to make that decision, and did not want any of my ministers to have to do that either ... I insisted that a special role should be created in this instance. The meeting was stressful.

IC [Callinan] recommended Doug Drummond. Learned in criminal law, impartial but firm, he was ideal. I have never met him.

I took the appointment to cabinet and pressed it strongly. They had to agree. The logic was very powerful. Drummond was appointed straight away."

The appointment of Douglas Paton Drummond QC (later Justice Drummond of the Federal Court) was announced on December 12, 1988.

Fitzgerald reported on JuIy 9, 1989. With prosecutions likely, he did not name the guilty men and women. His recommendations included a standing commission on corruption.

Ahern said his government would adopt the recommendations "lock, stock and barrel", but some of his colleagues were not entranced.

Late in August, Clauson and Police Minister, Russell Cooper told Ahern they could no longer serve under him. In a party-room putsch on September 25, Ahern was out and Cooper was in.

Ahern told me that after the meeting:

"[Yvonne] Chapman [a Nat MP] said to me: 'Now we will see who is governing Queensland, Fitzgerald or the Premier'."

(Chapman is celebrated for suggesting that doors be removed from male public toilets to slow down the incidence of certain practices therein. It will be recalled that Justice David Yeldham topped himself in 1997 after learning that the Wood inquiry had evidence of his high-risk activities in Sydney railway toilets.)

Exit polls at the Queensland elections on December 2, 1989 showed that the Nats could have hung on in coalition with the Liberals if they had stuck with Ahern. Except for a brief interregnum, they have been out of office for 20 years.

Drummond speaks

Meanwhile, the Drummond Caravan rolled on at trials according to the wondrous procedures of the adversary system: evidence is hidden; the judge cannot stop defence lawyers doing the sophistry bit to confuse jurors.

I asked Drummond by email recently if he knew the number charged and the cost. He said I could quote him. I do so verbatim:

"It's a bit difficult to get the precise figures, but the following is pretty accurate.
 
238 persons were charged [some with multiple offences]. 148 were convicted of at least one charge, including the 3 people named in the Order in Council establishing the inquiry as involved in protected criminal activities, 18 out of 30 police, 4 out of 7 ministers [1 died before he came to trial] and 2 out of 3 major developers ...
 
I have now got all the special prosecutor reports i.e. those for 1989 to 1994. The total costs were $19,098,730, not including the salaries paid to the police officers seconded to the special prosecutor's office."

The inquiry and prosecutions thus cost the punters $40 million all up, an average of $5 million a year for eight years. The figures would be at least double at today's rates, but the results would still be cheap at the price.

Drummond's conviction rate of 62 percent is astonishingly high for the get-the-guilty off system. He and Fitzgerald may be seen as the Bradmen of this line of work. Their achievements may be compared with Bloody Sunday debacles.
 
Lord Widgery does the decent thing

British soldiers shot unarmed and fleeing Irish citizens in the back at 4.10 pm on Sunday, January 30, 1972. The event was known as Bloody Sunday or The Bogside Massacre.

The casualties were: 26 wounded, 13 killed, including seven teenagers. Five were shot in the back. That was known within minutes, and confirmed by inquiring reporters in four days.

Ted (Grocer) HeathPM Ted (Grocer) Heath, got the Chief Justice, Lord (John) Widgery, to inquire.

Widgery did the right thing by the Grocer and the Army. The closest he got to the truth was that the shooting was "bordering on the reckless". His cover-up, i.e. perversion of justice, was at least cheapish; it took only 11 weeks.

He also did the right thing by the cops. He dismissed the Birmingham Six's first appeal in 1976.

Perhaps all that sophistry took its toll; by 1978, Widgery was clearly demented. Private Eye reported:

"He sits hunched and scowling, squinting into his books from a range of three inches, his wig awry. He keeps up a muttered commentary of bad-tempered and irrelevant questions - 'What d'you say?', 'Speak up', 'Don't shout', 'Whipper-snapper', etc." 

He was not forced off the bench until 1980.
 
Lord Saville, stonecutter

Tony Blair's memoir is properly being shifted to the Crime section in bookshops because of his unlawful aggression in Iraq, but, with a big assist from George Mitchell's patience, he did achieve the end of the civil war in Ulster that followed the Bogside massacre.

Part of the deal was to have another inquiry into the truth of the massacre.

Lord Saville: lengthy delaysIn 1998, Blair appointed a law lord, Lord (Mark) Saville, to chair an inquiry. A former Australian judge, John Toohey, and a former Canadian judge, William Hoyt, were on the panel.

The inquiry was rather more than the usual lawyers' picnic. Formal hearings began in the Guildhall, Derry, in 2000. Sir Christopher Clarke, counsel assisting, made a brief opening statement. He took 42 days.

Hearings ended in December 2004. Saville then retired to cut his report from stone in a luxury shed in his backyard.

The Telegraph later reported that it cost £60,000 and had a hobby room and a wine cellar.

In July 2006 Tessa Jowell, the Olympics Minister, let slip that "the latest estimate [for the cost of the inquiry] is about £400 million".

Her aides said she got the figure from the Northern Ireland Secretary, John Reid.

Tory people noted that the £400 million would have paid the annual salaries of more than 15,000 nurses, 11,000 policeman, and nearly 5,000 doctors.

Lawyers helped Saville with the stonecutting.

In February 2008, Shaun Woodward, the Northern Ireland Secretary of State, said the inquiry was still costing £500,000 a month.

Saville finally handed in his report in March 2010, and it was published on June 15. The cost was now alleged to be £192 million, $300 million or $600 million? Take you pick.

The report stated that the Irish people were not a threat; that soldiers fatally shot fleeing civilians and those who tried to help them; and that the soldiers had concocted lies.

Perjury charges will presumably follow.

Public moneys trousered

The Saville inquiry was rather more than the usual lawyers' picnic. On June 11, 2010, The Telegraph reported some of the public moneys they trousered:

• Solicitors Madden & Finucane, for victims' families: almost £13 million.
• Another (unnamed) firm: approx £12 million.
• Sir Christopher Clarke QC: £4.5 million+.
• Edwin Glasgow QC, lead counsel for the armed forces: £4.1 million+. 
• Gerard Elias QC, a counsel for the armed forces: £1.8 million.
• Sir Allan Green QC £1.5 million+.
• Michael (Moneybags) Mansfield QC: £740,000+.
• Sir Louis Blom-Cooper QC: £587,000.

Australian lawyers will be hoping the Saville inquiry offers a useful precedent.