An inquiry that is going to take infinite time is no good to anybody, the tribunal chairman remarked yesterday as lawyers at the Bloody Sunday Inquiry grappled with complex legal issues concerning secret material.
Lord Saville of Newdigate, sitting with two other judges, addressed the prospect that the hearings could be held up for a year or more if the security and intelligence agencies are asked to trawl through files for any information held on up to 1,200 civilian witnesses.
The inquiry yesterday began hearing legal submissions on behalf of soldiers, civilians, families of Bloody Sunday victims, the RUC, the Ministry of Defence and other security agencies in relation to the controversial proposal on intelligence data.
Earlier this year, the inquiry was asked by lawyers for the soldiers to obtain and circulate any relevant information held by the police and agencies such as MI5 about civilian witnesses.
The inquiry already routinely has a search conducted of UK criminal records to discover whether any witnesses have had significant criminal convictions in the past. Such records could be introduced during a witness's testimony and could be taken into account by the tribunal in assessing the credibility of the witness.
The new proposal, however, is that several other categories of intelligence material should also be supplied, if they exist. This could include material based on reports by agents and informers, records of RUC interviews and Special Branch files, and reports based on eavesdropping and telephone taps.
The tribunal judges and its counsel have already been supplied with "mock summaries" of the type which might be prepared in relation to witnesses and have seen some samples of real material concerning a few individuals.
Mr Christopher Clarke QC, counsel to the tribunal, said it had taken two months for the intelligence agencies to assemble the sample material which had been examined in relation to just six witnesses.
He said some of the intelligence material, if accurate, tended to indicate certain witnesses appeared to have been members of one or other wing of the IRA in 1972 or subsequently. However, there had been no judicial determination of the validity of any of the allegations in the material.
Mr Philip Sales, counsel for the RUC, the Metropolitan Police and MI5, told the inquiry yesterday agency records did not - and could not - contain clear-cut membership details, as membership of a terrorist organisation "is not, for obvious reasons, centrally recorded by that organisation".
Mr David Lloyd-Jones QC, for a large number of soldiers, urged the inquiry to discover and admit all material, as the exclusion of any material which showed a civilian witness had been in a paramilitary organisation would be self-evidently incompatible with "a full, open, complete and thorough inquiry" into Bloody Sunday.
Mr Gerard Elias QC, for other soldiers, argued that the Garda and other security/ intelligence agencies in the Republic should also be approached for information they may hold.
In the course of counsel's submissions, however, Lord Saville pointed out that information of the type in question would not, in itself, establish as fact that a witness was a member of the IRA. "It is a piece of paper that says this . . . it does not begin to prove that he was". This fundamental problem could not be dodged, he suggested.
He asked if they should wait, perhaps 12 months, until the intelligence summaries could be produced. During this time, some witnesses could refuse to turn up until any allegations to be made against them were produced. And, when produced, they could demand full details of their accuser.
This would then be met by a Public Interest Immunity applications by the security services, which, if successful, would probably mean that it would be unfair to use the material at all, "by which stage we are about two years down the line."
Legal submissions will continue today.