The British government privately considered using the defence of "sovereign immunity", the legal doctrine which protects states from being prosecuted for criminal acts, to prevent relatives of some of the 33 people killed in the 1974 Dublin-Monaghan bombings from suing it in the Dublin courts, according to confidential Whitehall letters and memos which have been obtained by the Sunday Tribune.
Discussions about using the defence, between the British Foreign Office, the Treasury Solicitors Department - which acts as the British government's lawyer - and a firm of solicitors in Dublin which had been asked to represent the British, took place in September 1999, not long after lawyers for the Monaghan-Dublin relatives had formulated plans to sue the British for damages arising out of the bombings.
The content of the documents, which the Sunday Tribune is publishing in full, raises important questions about the British motives for contemplating his legal strategem. On the worst interpretation, the use of such a defence could be be seen as an implicit admission of guilt in the bombings, which still rank as the worst day of carnage during the Troubles, while the most favourable construction was that it was being considered so as to block efforts to force the British to hand over papers and documents relating to the bombings. Either way, say human rights advocates and lawyers for the victims' relatives, the documents smack of a government which has something to hide rather than the action of a wrongly accused party loudly proclaiming innocence.
The two sets of bombings took place within hours of each other on the evening of May 17, 1974 during the midst of the Loyalist strike against the ill-fated Sunningdale deal, which had set up a Council of Ireland and a power-sharing Cabinet involving Unionist, SDLP and Alliance ministers. Three car bombs exploded in central Dublin during the rush hour killing twenty-two and over a hundred were injured while a car bomb in the centre of Monaghan killed five and wounded twenty. The death toll eventually rose to thirty-three.
Although Loyalist paramilitaries were blamed for the blasts there have been persistent allegations since of some form of British intelligence involvement in the bombings. Over the years relatives of the dead and injured organised protests and tried to build support for a fuller probe of the incidents, often against a background of official hostility and public indifference. Eventually in late 1999 the government announced a private inquiry into the bombings by Mr Justice Henry Barron whose eventual report may pave the way for a fully fledged public inquiry, although there have been complaints of lack of co-operation with Barron on the part of the British.
The fact that the British considered employing the "sovereign immunity" defence is all the more remarkable for the fact that at the time the saga of General Pinochet was still causing controversy in Britain, not least because he had also employed the defence of "sovereign immunity" to resist attempts by Spain, France, Belgium and Switzerland to extradite him to face charges of murder and torture committed after the Chilean armed forces coup of 1973.
Pinochet, who was arrested in London while attending a Harley St clinic in October 1998, was initially granted "sovereign immunity" by the High Court in London on the grounds that the "disappearing", murder and torture of hundreds of Chilean political activists had happened while he was head of state. But in a series of extraordinary twists and turns the British House of Lords first removed that immunity and then restored it, albeit in a limited form which still left the former Chilean dictator liable for extradition.
Formal and final extradition proceedings against Pinochet began on September 27th, 1999, a week or so after the Foreign Office and the Treasury Solicitors department had begun discussing using the Pinochet defence to prevent legal action in the Republic's courts in the Dublin-Monaghan case. Six months later however, the British Home Secretary, Jack Straw allowed Pinochet to return, unscathed, to Chile after a medical examination had found he was suffering from "extensive brain damage".
The correspondence between the British government departments had been sparked by a letter written in early September by Brophy & Co., lawyers for the Dublin-Monaghan relatives, to the British embassy in Dublin threatening a suit to recover damages in relation to the bombing deaths and injuries. Following the establishment of the Barron investigation two months later, the lawyers suspended legal action and reserved their position on the matter.
Asked for his reaction to the documents, Greg O'Neill, solicitor for the relatives said: "The man in the street might well ask that if the British government had clean hands, why would it rely on such a device and defence in an action taken by the injured citizens of a friendly neighbour?"
British-Irish Rights Watch director, Jane Winter called the documents "truly startling", adding: "What seems to be crystal clear is that the British government has something to hide about the Dublin and Monaghan bombings, and was prepared to consider claiming state immunity in order not to have to reveal it."
There are four documents altogether dealing with the subject of "sovereign immunity" and the Dublin-Monaghan bombings. The first, dated September 20, 1999, is a note of a telephone conversation between an unnamed Treasury Solicitor's official and a Foreign Office official, Elizabeth Wilmshurst. The note appears to have been generated by a request from the Treasury Solicitor's office to the Foreign Office about the previous possible use of "sovereign immunity" defence in Irish cases.
The second document is dated September 21, 1999 and is another account of a 'phone conversation, this time with a Foreign Office lawyer, Paul Burman in which the lawyer suggests that, depending "upon the nature of the alleged involvement of the security forces", either the Northern Ireland Office or the Ministry of Defence would take the lead in the case rather than the Foreign Office. The Foreign Office official also advised that a firm of Dublin solicitors be consulted about whether the "sovereign immunity" defence could be employed in Dublin, given that Ireland is not a signatory to the European Convention on State Immunity.
The third document, dated September 24, 1999 is a minute written by a Treasury Solicitor's official called Sean Martin dealing with another conversation with the Foreign Office lawyer. This notes a concern on the part of the Foreign Office that the Treasury Solicitor's department should not nominate lawyers in Dublin to answer the Brophy action "until we have received advice that acceptance of service would not prejudice our ability to claim a state immunity defence."
The fourth document, also dated September 24, 1999, is a letter from Sean Martin in the Treasury Solicitor's office to the British government's Dublin lawyers formally instructing them and seeking advice on whether the "soverign immunity" defence can be employed in Ireland.
[1st document]
ATTENDANCE NOTE
Ref: L99/new/SEM/D1
Talbot
Elizabeth Wilmshurst of the FCO telephoned. She said that she would be speaking to her colleague, Paul Burman, tomorrow and would ask that he phone me once he had obtained the information requested.
She asked whether I have an experience of similar cases. I referred to RJP's case of Flynn which concerned an application by an Irishman against the Attorney General of Gibraltar. In that case, the UK government had successfully claimed sovereign immunity in the Irish courts. We agreed that the same would not necessarily apply on these facts. Miss Wilmshurst referred to the case of MacKeldownie (?spelling) in 1995. She said that that was a case concerning Northern Ireland. She was not sure who at TSols dealt with the case and had not been able to find the FCO papers.
As to the terms of our initial response to Brothy's letter, I suggested that we keep the initial acknowledgement very short. Miss Wilmshurst suggested that the letter might wish to include the reference to a possible claim for sovereign immunity. We agreed that we could consider that further in the light of any additional information.
20 September 1999
[2nd document]
ATTENDANCE NOTE
21 September 1999
Talbot
I telephoned Paul Burman at FCO Legal Advisers. Paul explained that he was not sure that the FCO would be taking the lead in the case. Depending upon the nature of the alleged involvement of the security forces, it was possible that the MOD or the Northern Ireland Office should be the lead department. In any event, he agreed that our initial stab should be to instruct McCann Fitzgerald to obtain their advice as to any possible defence based upon sovereign immunity.
Paul was aware that Ireland was not a signatory to the European Convention on State Immunity. The UK's law was based upon that Convention, but Paul was aware that there was an exemption to the immunity provisions in the case of personal injury action. The solicitors' letter indicated a claim for nervous shock which might, therefore, still be advanced under English law. He did not know what our position would be under Irish law.
John had asked the FCO desk officers to prepare a background briefing note. He believed that there had been a Channel 4 documentary relating to the bombings in 1995. Interest in the bomb may also have been generated by the appointment of a commissioner of victims in Northern Ireland; and by a similar appointment (of John Wilson) in the Republic. John believed that a report published by John Wilson dealt in part with the 1974 bombing.
Paul's telephone number for future use is 270 6190. His fax number is 270 2767.
[3rd document]
M I N U T E
Your ref: Our ref: L99/6410E/SEM/D1
Roland Phillips cc:
24 September 1999
Talbot Street Bomb: threat of legal proceedings by families of the victims
I attach the jacket for the above. You know the background. I am receiving instructions from Paul Berman at FCO Legal Advisers. He has asked that future contact be between Treasury Solicitors and McCann Fitzgerald in Dublin. I have written to McCann Fitzgerald requesting advice as to state immunity and the various steps in a civil litigation in Ireland. I have also asked as to their proposed fee arrangements.
I have not yet received a briefing note as to the background facts. Paul Berman has promised this, so it may come in while I am away. Otherwise, I do not expect any significant activity on the case. The Embassy proposes to acknowledge the letters from the intended claimants. We have not, as yet, nominated solicitors to accept service of proceedings in the Republic. The FCO's concern was that we should not nominate McCann Fitzgerald to accept service of proceedings until we have received advice that acceptance of service would not prejudice our ability to claim a state immunity defence.
Sean Martin
Ext 3358
Room 601
[4th document]
THE TREASURY SOLICITOR
Queen Anne's Chambers, 28 Broadway, London SW1H 9JS
DX 123242 St James's Park Direct Fax: 210 3410 Switchboard 0171 210 3000 (GTN 210)
Direct Line: 0171 210 3358
Mr David Clarke
McCann Fitzgerald
2 Harbourmaster Place
Custom House Dock
Dublin 1
Ireland
Please quote: L99/6410B/SEM/D1
Your reference: DJC/MC
Date: 24 September 1999
-
By fax: 353 1 829 0010
Dear Mr Clarke
RE: Dublin and Monaghan bombings in 1974
I write further to the correspondence between you and John Rankin in respect of the above. I act for the UK Government and would like to instruct McCann Fitzgerald to act as our agents in any proceedings brought by Brophy's clients against the British Government in respect of the above bombings.
I should be grateful if you would let me know your normal fee arrangements, so that we can consider the terms of your appointment.
I have seen a copy of your letter to Mr Rankin of 21 September 1999. The Embassy will be acknowledging Brophy's letters shortly but will do no more at this stage than indicate that the letters are being considered. Before we respond substantively, I would ask for your advice as to:
1. whether we should accept service of proceedings in Ireland;
2. to what extent a defence based on sovereign immunity would be available in an action of the type contemplated in Brophy's letters.
If we were to inform the solicitors that McCann Fitzgerald were authorised to accept service, would that prevent us from arguing that the Irish Courts do not have jurisdiction to entertain the claim against the British government? Alternatively, if we declined to nominate a firm of solicitors to accept service, would service upon the Embassy be sufficient, or would Brophy need to obtain leave to serve the proceedings out of the jurisdiction? If your advice is that McCann Fitzgerald should accept service of proceedings, do we need to make it clear that such acceptance of service does not constitute an acceptance of jurisdiction?
You touch on the question of sovereign immunity in your letter of 21 September. I should be grateful if you would explain in what circumstances the defence is available in Ireland. In particular, is it likely to apply to proceedings for "damages for mental distress, loss and damage"? In the UK the question of state immunity is governed by the State Immunity Act 1976 which implements the 1972 European Convention on State Immunity. Am I right in thinking that Ireland is not a party to the European Convention and has no legislation in this area? If that is correct, I would welcome your guidance on how the Irish courts approach the question.
I confess that I know very little about Irish civil litigation procedure. It would be very helpful if you could let me have a brief statement to pass on to our clients as to the procedural steps in the action and the likely timetable if the matter proceeds towards a trial.
I will be out of the office between 27 September and 1 October. In my absence my colleague Roland Phillips (171 210 3089) will be dealing with the matter and should be able to answer any immediate queries you have.
Yours sincerely
Sean Martin
for the Treasury Solicitor
Back to ‘The Dublin and Monaghan Bombings’