The Billy Wright Inquiry Final Submissions

Hearing: 30th June 2009, day 154

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BILLY WRIGHT

PUBLIC INQUIRY

 

 

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held at:

The Court House

Banbridge

County Down

 

on Tuesday, 30th June 2009

commencing at 10.00 am

 

Day 154

 

 

 I N D E X

 

Submissions by MR BRANGAM ........................ 1

Submissions by MR BEER .......................... 51

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 1 Tuesday, 30th June 2009

2 (10.00 am)

3 THE CHAIRMAN: Now, Mr Brangam?

4 Submissions by MR BRANGAM

5 for RUC/PSNI

6 MR BRANGAM: My Lord, members of the Panel, you will already

7 have received detailed written submissions from the

8 PSNI. We start by making the point that this Inquiry is

9 for the benefit of the public. The Panel has been

10 charged with its duty to investigate and report and it

11 has had the opportunity of working at this task for

12 a very long period of time. Many financial and human

13 resources have been expended in the course of the

14 Inquiry. Indeed, as I was coming down this morning, it

15 occurred to me to point out that two roads and two

16 bridges have been built since this Inquiry started.

17 Throughout the Inquiry, the Panel has had the

18 assistance of counsel, legal advisers, dedicated

19 investigators and expert staff, and an extremely small

20 portion of the evidence has been held in closed session.

21 Such restrictions as have been imposed have been

22 permitted by the Panel only after due deliberation and

23 on applications which have been fully argued before the

24 Panel.

25 Bearing in mind the fact that this Inquiry is for

1
 1 the public, we suggest that these limited restrictions

2 have been found necessary for reasons which are obvious

3 to the Panel, not necessarily to the public, and we

4 suggest the public should be completely assured that its

5 trust in the Panel is appropriate, because the Panel has

6 had the opportunity of seeing the entirety of the

7 evidence.

8 At a later stage in the evidence, when the issues

9 for deliberation have been more clearly defined, the

10 Panel has had these closed sessions, and Mr Kane and

11 those he represents had an opportunity of highlighting

12 any areas which are to be put in questions to those

13 particular witnesses.

14 Therefore, whilst it is, of course, desirable that

15 all proceedings are in public, the limited proceedings

16 in this hearing, in this Inquiry, which have been dealt

17 with in closed session are of a very minor nature and we

18 suggest that the public should be completely satisfied

19 that the Panel is in the best position to form a view in

20 relation to its terms of reference.

21 The report in this Inquiry will, of course, be of

22 interest to the public, but primarily we suggest the

23 report will be of interest to the Wright family. The

24 Police Service of Northern Ireland as the successor in

25 policing to the RUC George Cross has what we call

2
 1 an anxious interest in the outcome of this and all the

2 historic Inquiries. We welcome this opportunity in oral

3 submissions to make our position clear to the Wright

4 family and to the public.

5 We have cooperated fully with the Inquiry. We have

6 cooperated fully with the Inquiry staff. We have thrown

7 open our doors to the Inquiry. We have made available

8 everything which we have and we did not have and do not

9 have any secret cache of Billy Wright-related materials

10 which has been segregated in some way for

11 non-production.

12 We have not conspired with Government or emanations

13 of the State to inhibit the work of this Inquiry. We

14 have sought to answer all the questions which have been

15 posed -- and there have been many -- by the Inquiry and

16 Inquiry staff.

17 If one stops the action today, 30 June, our position

18 is that we have disclosed everything and we are at

19 a loss to think of any other line of ingenious research

20 which could be directed by the Inquiry in order to

21 fulfil its terms of reference.

22 In addition to seeking out documentation, and often

23 redundant documentation, we have carried out a thorough

24 investigation in order to find staff who can assist with

25 the Inquiry, because it cannot be forgotten that we are

3
 1 dealing here with historic events, events of some

2 vintage going back to 1996-1998.

3 Our position is that we have done everything

4 possible to assist the Inquiry to interview retired

5 officers, and this work we say has achieved an almost

6 100% score.

7 We take exception to what my learned friend Mr Kane

8 says in his written submission at page 148, where he

9 indicates, as will be seen -- and this is a recurring

10 theme with a number of key RUC witnesses, who are said

11 to have left the country and who have not been available

12 for interview with the Inquiry. It raises the suspicion

13 amongst the Wright family that crucial RUC witnesses

14 have left the jurisdiction and failed to cooperate with

15 the Inquiry.

16 We reject the inference in my learned friend's

17 submission that there has been some voluntary or some

18 planned exodus of RUC officers who have in some way

19 resisted offering assistance to the Inquiry.

20 The number of former officers who are not available

21 is small. There are medical and other life difficulties

22 which have prevented them from assisting the Inquiry.

23 Their positions have been made clear to the Inquiry

24 Panel and Inquiry team. No enforcement proceedings have

25 been brought against any RUC officers.

4
 1 With respect to my learned friend, the suggestion

2 that officers have been in some way encouraged or have

3 volunteered to leave the jurisdiction or to avoid

4 interview by the Panel is something which is really

5 sponsored and borne out of the need on the part of

6 Mr Kane to prop up what we suggest is absolutely

7 nonsense on stilts, the infinitely variable conspiracy

8 theory.

9 The Inquiry is an inquisitorial procedure. We

10 welcome the participation in the inquisitorial

11 procedure, but it is fair to say all parties have

12 experienced some difficulty, in that the list of issues

13 has been somewhat variable from time to time.

14 It is not a criticism of the Inquiry, but unlike

15 some other Inquiries, we have not been faced with books

16 of evidence on which we are required to make responses

17 and procedure of that type. In fact, what has happened

18 in this Inquiry, we suggest, is that counsel on behalf

19 of the Wright family has been afforded the most ample

20 opportunity to explore every crevice in search of

21 evidence and support of what has really become his

22 indictment, and the indictment is preferred against

23 many. It is not just directed against the RUC, but it

24 is directed against the RUC Special Branch and many of

25 its Senior Officers. The charge is conspiracy, but the

5
 1 numerous counts have not been articulated.

2 The fundamental submission which we would ask the

3 Inquiry to highlight and to address as being of salient

4 importance is, on behalf of PSNI, we say there is no

5 evidence; no evidence to connect the murder of

6 Billy Wright with either conspiracy or even the expanded

7 explanation of collusion adopted by Judge Cory.

8 If one stopped the action at this stage and stood

9 back from the canvas -- if this were a prosecution --

10 and it is not a prosecution, because it is an Inquiry,

11 and there are limitations upon the findings of fact

12 which can be made, but if this were a prosecution led by

13 my learned friend Mr Kane, on behalf of the PSNI we

14 would now be entitled to seek a direction; we would not

15 only be entitled to seek it, we would obtain that

16 direction, because the evidence quite simply is not

17 there. Our position is clear. We had no knowledge of

18 the pre-emptive strike against Mr Wright. We had no

19 knowledge of a plot to kill Mr Wright. We had no

20 knowledge of weapons in the prison in relation to the

21 hostage-taking. We had no knowledge of weapons in the

22 prison prior to the murder of Mr Wright. All of the

23 attempts to establish those vague links in the chain

24 have been unsuccessful.

25 This Inquiry has had the advantage, which Judge Cory

6
 1 did not have, of hearing evidence. The number of

2 witnesses is known to the Inquiry, and the examination

3 of those witnesses has been prolonged.

4 We say that at this stage, if it were a prosecution,

5 we would be entitled to a direction. That requires some

6 explanation and some expansion.

7 What we say is that the ridiculous, non-specific,

8 illogicality of the conspiracy theory has indeed mutated

9 as the evidence proceeded. There is not any motive for

10 the conspiracy theory. It is quite clear Billy Wright

11 was not a threat to the peace process. There is no-one

12 who says in evidence this was the case. It is

13 an inherently unlikely plot that efforts would be made

14 to have him targeted by imprisoned terrorists who would

15 be assisted to use firearms in one of Her Majesty's

16 prisons. It is a gross understatement.

17 It would have been difficult to manage such a plan

18 and it would have required the collaboration of many

19 persons. Any such facilitation would have carried

20 a high risk of failure and a high risk of detection. It

21 would also, of course, have carried a high risk of what

22 our American allies call "collateral damage", in that

23 a number of Prison Officers and others would have been

24 exposed to danger. The conspiracy stuff really is the

25 stuff of a very poor crime novel, but even if this

7
 1 assessment is extravagant, there is no evidence to

2 support it.

3 We suggest that the Inquiry is entitled to look at

4 the entirety of the evidence, and one of the primary

5 matters for determination is whether or not there is

6 linkage between all of the events which have been the

7 subject of such detailed scrutiny.

8 The first issue then we would suggest the Inquiry

9 should address is what I will call linkage. There is no

10 doubt that Billy Wright was murdered in HMP Maze, and

11 this does not mean that every event prior to 27 December

12 was in some way a connected part of a linked conspiracy.

13 If I may say so, there is wisdom in the submission

14 of NIPS, I think formulated by my learned friend

15 Mr Beer, when he says that the recommendation for the

16 Panel is that the Panel should determine not whether any

17 wrongful act or omission was intentional; rather, the

18 Panel should determine whether any act of facilitation

19 of the death by virtue of connection of any wrongful act

20 or omission was of itself intentional.

21 What one looks at is not, was it a causa sine qua

22 non, that's to say was it not an essential part that,

23 for example, Mr Wright be in the Maze in order that he

24 be murdered, but why was he in the Maze? Of course, the

25 answer to that question is that he requested to be in

8
 1 the Maze. That matter has been dealt with.

2 It is our submission that those events where the

3 actions or omissions of the RUC are in some way

4 challenged are clearly free-standing issues and they

5 should be assessed as such. They are not footprints

6 which lead up to the fulfilment of this non-specific and

7 ill-defined grand conspiracy.

8 When one looks at the issue of linkage, the next

9 question is: what particular events should be subjected

10 to scrutiny? We suggest that the first one which would

11 be subjected to scrutiny is threat handling. Our

12 submissions in relation to general threat handling

13 should be clear from paragraphs 723 and 724 of the

14 written submissions, and that's at CS18-0056.

15 Leaving aside the April threat, the Panel may wish

16 to consider -- and we suggest that it is subjunctive;

17 you may wish to consider but do not have to consider --

18 whether there is any connection between the events of

19 October 1996 and June 1997, and I refer there to the

20 threat which is articulated in the document SS01-0368

21 and then, later, the threat in relation to the lost list

22 from Garda Siochana.

23 What we say in relation to general threat handling

24 is that there was in place a structured system. It

25 operated well. There were reasons to have that system.

9
 1 We have been dealing in this Inquiry with the management

2 of intelligence. We do suggest the Panel can take the

3 body of evidence from all of those who have given

4 evidence in relation to intelligence management and can

5 see that there are very good reasons why information

6 must be managed, particularly in relation to threats.

7 There are very good reasons why it should not be just

8 handed out willy-nilly, because careless talk costs

9 lives. If currency is given to information which is not

10 necessary to be handed around, then actions may be taken

11 on foot of that.

12 What we say is, if the Panel consider it is

13 appropriate to form some views in relation to

14 October 1996 or June of 1997, when you do that, whatever

15 view you come to will be that these are not events which

16 are connected to the murder of Billy Wright on

17 27 December. There is no causal connection between

18 them. They are free-standing.

19 It cannot seriously be suggested that there has been

20 a long-term plan in order to suppress information in

21 order to ensure that Billy Wright is exposed to the

22 maximum amount of hazard. That is part of the

23 conspiracy theory. We think it is part of the

24 conspiracy theory, but we are not quite sure who is

25 supposed to have behind that, but it is nevertheless

10
 1 something which is from time to time flashed before our

2 consciousness and it is put to witnesses in some vague

3 and unspecific way.

4 For the reasons set out in our written submissions

5 at paragraph 31 of chapter 7, we invite the Panel to

6 dismiss any connection between these incidents.

7 At this stage, I think it is also appropriate to say

8 that we invite the Panel to -- not in any way to

9 supplement the assessment of October 1996 or June 1997

10 with anything which it has heard from members of the

11 Stevens Enquiry. The evidence from Stevens really does

12 relate to totally different events. It does relate to

13 a different era. It does relate to specific matters

14 and, of course, we have Mr McFadden, who in his evidence

15 has indicated that his knowledge of anything in relation

16 to Billy Wright is superficial. Attempts have been made

17 to support the conspiracy theory by exploiting the

18 evidence of Mr McFadden of the Stevens Enquiry as

19 indicators of an endemic attitude on the part of

20 Special Branch.

21 Well, with respect to all involved -- and it is, if

22 I may say so, somewhat difficult to be polite about it,

23 but with respect to all involved, this is similar fact

24 evidence which does not connect. If one were to revert

25 back to the question of prosecution, it is speculative,

11
 1 but it seems that such evidence would not be admitted as

2 in any way causative or probative in relation to any

3 such conspiracy.

4 The second area which, of course has taken a great

5 deal of the Panel's time, is in relation to the linkage

6 between the April threat, the move to the Maze, the

7 hostage-taking and the transfer of McWilliams and

8 Kenneway.

9 We suggest that all of those issues can be assessed

10 together. That's not to say that the Panel is not

11 entitled to weigh individual issues and consider

12 a number of possibilities. This is, of course, the key

13 document with which we are well-acquainted, SS01-0218.

14 Our responses are set out at 727-730 of our submissions,

15 which is CS18-0061 and onward.

16 As a preliminary point, we would make the submission

17 that this is an Inquiry where we are not a party in the

18 sense of being an adversarial party. We do not have

19 a position to establish. We are obliged to assist the

20 Inquiry to provide information, but we do not have

21 a cause where we are required to establish any evidence

22 whatsoever.

23 My learned friend Mr Kane seeks to suggest that in

24 some way the Service and PSNI are at loggerheads and

25 there are times when key points have not been put to

12
 1 certain witnesses.

2 Well, again, with respect, the situation of a party

3 in this Inquiry is that if there is no evidence to be

4 put before the Inquiry, then we cannot possibly ask

5 questions on the basis of no evidence. We cannot, with

6 flair and imagination, formulate questions to a witness,

7 but that does not prevent us in our submissions from

8 inviting the Inquiry to explore some of the more natural

9 conclusions which may be drawn from a series of facts.

10 If we have not asked Sir John Wheeler certain

11 questions or raised with him certain possibilities, then

12 that does not prevent us from inviting the Panel to

13 consider the high likelihood that Sir John did indeed

14 hear something about the threat which was formulated in

15 SS01-0218.

16 It is sometimes useful to read the entirety of the

17 transcript, and the members of the Panel who have done

18 this will know that on some occasions it is difficult to

19 mine small amounts of ore from quite a lot of other

20 material. But when one looks at the evidence of DO2,

21 AH, FG and the linkage between Special Branch

22 Headquarters, Assessments Group and Government, we

23 suggest that the evidence quite clearly establishes

24 a number of points.

25 The points are, I think, relatively simple. First

13
 1 of all, as a matter of practicality, PSNI accept it is

2 highly likely that AH did telephone through to E3A. He

3 did know that his call could not be actioned unless

4 there was agreement about a form of words. He knew this

5 could not be done without transmission of hard copy.

6 When he finished his call, he did not expect that

7 the information was to be ignored and there is no real

8 issue about the reliability of the evidence -- sorry --

9 the reliability of the information which AH was

10 transmitting to E3A.

11 There is a point which my learned friend Mr Kane

12 seeks to make in his submissions, that in some way there

13 was an attempt to downgrade this information. This

14 suggestion that the information was to be downgraded has

15 also been linked with the completely false controversy

16 which there has been in relation to the grading of the

17 Intrep and the difference between a B2 and an E5. We

18 suggest that's completely -- that evidence -- the

19 evidence on that has completely resolved this issue. It

20 was a mechanical matter. It was not an executive action

21 on the part of anyone to downgrade the information.

22 The idea that the intelligence which was being --

23 I was going to say "transmitted", but that's not the

24 word I want to use -- when the evidence of information

25 from AH was being referred to E3A, there is no

14
 1 suggestion it was treated by E3A as unreliable. There

2 is no suggestion that E3A discarded the intelligence

3 because it was unreliable. That suggestion only arises

4 when one adopts a very restrictive construction of the

5 various file notes which were made by AH in the events

6 subsequent to 21st April 1997.

7 So we have a situation quite clearly on the evidence

8 that AH knows that no action can be taken on this phone

9 call until hard copy is with E3A. I suggest that fact

10 is unassailable.

11 How is the hard copy to make its way to E3A? Well,

12 on this occasion, AH chose not to use a source report.

13 He chose not to transmit to E3 direct. One might say

14 that, in fact, E3 was not treated as the customer on

15 this occasion by this agent handler. He sent the

16 content of his information to Assessments Group,

17 together with a request that it be published to RUC.

18 I wonder, if one looks at that, we do know that

19 practically the effect of that was that there was no

20 possibility whatsoever of E3A obtaining a hard copy

21 until at least 24th April, and this is in relation to

22 what AH postures as a threat. It is tactical

23 intelligence which is not sent to E3, but it is routed

24 instead to Assessment Group.

25 My learned friend Mr Kane again seeks to exploit the

15
 1 differences between Service and PSNI and some form of

2 connection with the mutating conspiracy, but we suggest

3 this is not an accurate representation of the position

4 of the parties.

5 We again remind the Panel that, on our submission,

6 all of these events are extremely difficult to connect

7 with what happened on 27 December, but what we are

8 saying in relation to these events is simply, if anyone

9 wishes to call in question our good faith in relation to

10 how this threat was handled, the buck does not stop with

11 us. I have to say I was somewhat annoyed, in reading my

12 learned friend Mr Kane's submissions, to see that he had

13 somewhat stolen my phraseology in that he refers to the

14 Service using a mantra of police primacy.

15 Now, from time to time, it has been mentioned by

16 service that this was a tactical matter. It was

17 entirely within the control of the PSNI, or rather the

18 RUC, and, therefore, the buck stops with them.

19 With respect, that really ignores the

20 practicalities. The RUC and the Service had a shared

21 responsibility. Clearly, this was tactical

22 intelligence, and, for the avoidance of doubt, when

23 I use that expression, I'm using that in everyday

24 parlance. It quite clearly was operationally important

25 that this information should get to those responsible as

16
 1 quickly as possible. Everyone in the intelligence

2 community knew that no action could be taken unless

3 there was a form of words. No form of words could be

4 agreed unless there was hard copy.

5 My learned friend Sir Geoffrey with some passion

6 makes the point that it is the content and not the form

7 that counts. We hope that, with respect and deference,

8 we would say that that is at best simplistic and, in any

9 event, it ignores the evidence which we have submitted

10 to the Inquiry at the ember hours of the

11 evidence-taking. We have all been required to observe

12 the highest degree of caution in relation to the

13 summaries which have been produced by the Service, but

14 we would draw attention to the tabulations which are at

15 (i) to (v) of paragraph 40 of our written submissions,

16 which is CS18-0063. If I could perhaps ask that that

17 page be put up. It is CS18-0063.

18 I am content, members of the Panel, to refer you to

19 that. I do not feel it is necessary to read that into

20 the transcript, but the point we think is well made.

21 There is an unexplained reason for not using a facility

22 to transmit this information directly to the RUC. Our

23 purpose in drawing this to the attention of the Panel is

24 not to incite blame on the Service or AH. Our purpose

25 is not in any way to encourage anyone to consider that

17
 1 this is in some way part of a conspiracy theory. It is

2 a free-standing sequence of events which is

3 understandable, and one may speculate upon why this

4 particular route or method of transmission was chosen by

5 AH, and one can easily find an explanation in his

6 concern about source sensitivity.

7 My learned friend Sir Geoffrey urges the Panel to

8 look at the core documents of SS01-0218. We support

9 that submission. Source sensitivity was important here.

10 That is perhaps -- perhaps -- why AH did not follow the

11 route which he had followed on previous occasions, and,

12 if he had followed that route, and that procedure, then

13 the intelligence would have been dealt with in the

14 manner in which previous threats and previous

15 intelligence from that handler were dealt with.

16 In a general way we have indicated that our weapon

17 of choice, so to speak, in our submissions is the shield

18 and not the sword. Really, it probably would be

19 sufficient to stop the action at this stage in relation

20 to the telephone call. Our point basically is that

21 there can be no possible criticism of any member of RUC

22 in relation to the events between 21 and 24 April.

23 The first point at which RUC could be vulnerable to

24 any form of adverse comment would be 24 April. Again,

25 we expressed that subjunctively, because on the

18
 1 submission which we make, these events are free-standing

2 and are not connected with the untimely death of

3 Billy Wright on 27 December. Therefore, it is not

4 necessary, not necessary, for the Panel to consider

5 adverse criticism of anyone, because of these events.

6 If the Panel takes the view that there is no

7 linkage, then the matter can rest there. But we, out of

8 caution, feel we must make some submission in relation

9 to what else might have happened.

10 On 24 April the evidence establishes that a NIIR was

11 published by Assessments Group. We are not in

12 a position to dispute that the NIIR was dispatched. We

13 are not in a position to dispute that it was circulated

14 in some format. We have been unable to find any witness

15 who received the NIIR.

16 This, of course, is less than optimum and it is

17 an embarrassment on the part of the RUC that it cannot

18 produce a witness who received the NIIR and we cannot

19 demonstrate that any action was taken, but, again, we

20 wind back very quickly and say that is the first date at

21 which any default ought to be considered on the part of

22 the RUC, 24 April. We are vindicated in the period

23 21-24 April by reason of the fact that we did not have

24 the opportunity of the immediate transmission of the

25 hard copy, which would have activated the procedures

19
 1 which are well-known.

2 Again, one pauses for a moment to consider factually

3 what was happening in Assessments Group at this stage.

4 On 22 April, the contact note is with Assessments Group.

5 One has the impression that Assessments Group is an open

6 forum where a number of people are busily involved in

7 compiling summaries, thinking through intelligence,

8 formulating scenarios and engaged in work of that type.

9 One speculates that on 22 April Assessment Group

10 would have known that they had sent advice to the

11 Minister about Mr Wright's move. One speculates also

12 that there would have been quite a flurry of activity in

13 Assessments Group, because Mr Wright's move was under

14 consideration, and it really does seem that the

15 intelligence world would not have been brought to a stop

16 or severely compromised if, in fact, someone in

17 Assessment Group had said, "There is a threat in here

18 against Mr Wright. We think it's being investigated by

19 the RUC, but nevertheless we think this is something the

20 Minister ought to know about", not the details of the

21 threat, but simply that here is another matter which

22 could rain on the parade of the Minister because he has

23 a very difficult task. He is trying to find

24 accommodation for one of the most unpopular terrorists

25 in Northern Ireland. This boils down to, I suppose, the

20
 1 designation of the nature of this information in the

2 contact note. Was it strategic? Was it tactical? Was

3 it both?

4 What we say is that if there is to be any criticism

5 of what happened in relation to the transfer of

6 Mr Wright, then we say the criticism is shared. It is

7 not the fault of PSNI or the RUC that no form of words

8 was agreed. Until 24 April we are not vulnerable, but

9 on 24 April we then must look at what happened with the

10 NIIR.

11 We do accept that it is awkward, embarrassing and

12 less than optimum that we cannot demonstrate action on

13 foot of that NIIR.

14 THE CHAIRMAN: Could I interrupt you very briefly just to

15 ask with reference to (v) --

16 MR BRANGAM: Yes, my Lord.

17 THE CHAIRMAN: -- in paragraph 40, is that sentence correct?

18 Is there a "not" missed out or have I got it wrong?

19 MR BRANGAM: Well, my Lord, what I have on the screen at (v)

20 is correct.

21 THE CHAIRMAN: It is correct. That's fine. Sorry to have

22 interrupted you.

23 MR BRANGAM: Not at all, my Lord. Sometimes the Socratic

24 debate can be helpful. This, of course, emerges at

25 a very late stage in the Inquiry --

21
 1 THE CHAIRMAN: Yes.

2 MR BRANGAM: -- at which -- the explanation for that is not

3 sinister. The explanation is very simple; that everyone

4 has been concerned with the sensitivity behind these

5 summaries and, at an earlier stage, the emphasis of the

6 Inquiry was really -- was not interested, if I can put

7 it that way, in this particular aspect.

8 My Lord, in relation to -- just to deal with the

9 NIIR now, yes, of course it's not optimum that we can't

10 demonstrate action. It is unusual that a number of

11 people were addressees of that NIIR and that the

12 information didn't seem to get to them.

13 However, what we have said about that is that we

14 have evidence of what the NIIRs were, and the evidence

15 suggests that NIIRs were not just intelligence. They

16 were assessments. The assessments were prepared by

17 Assessments Group once they had received intelligence,

18 once they had put their own comment upon that, and they

19 were being published by the Assessments Group at the

20 rate of perhaps 15 to 20 per day, sometimes more.

21 It is not an excuse for the RUC, but nevertheless

22 one can understand the situation that NIIRs were viewed

23 as primarily historic documents. They were

24 re-publications of intelligence which had been forwarded

25 and to which context had been added and so forth.

22
 1 One can then perhaps understand why this particular

2 document, the NIIR, was not given the prominence which

3 it should have been given. What we do is this, my Lord:

4 we invite the Panel to consider, if the NIIR had been

5 received, what would have happened? I think my learned

6 friend Mr Kane will say what did happen, in fact, was

7 everyone made an effort to bury this NIIR. In fact, in

8 his submission at a page which I will shortly identify

9 he goes so far as to identify that an effort was made

10 to -- for the Service to take an each-way bet,

11 indicating that they had communicated the information

12 orally and they had planted the NIIR on the Intrep

13 system.

14 Now, those speculations are really quite ridiculous.

15 There was a system in place for dealing with NIIRs, and

16 it is, of course, unfortunate that no-one, 12 years on,

17 is in a position to show exactly what happened, exactly

18 how they were distributed, exactly how they were signed

19 for, not signed for, autographed, not autographed, put

20 in pigeonholes, left on desks, and all of that process.

21 That is unsatisfactory, but those particular

22 unsatisfactory parts of the evidence are not smoking

23 guns. There is every reason to explain why the NIIR was

24 not considered to be the method of communicating threat

25 intelligence.

23
 1 If one looks at the evidence of DO2 and reads the

2 entirety of her evidence, one gets the impression that

3 she was rather upset at the sort of day-to-day stuff

4 that was passing across her desk. She made the decision

5 and it was purely tactical. She made the decision to

6 publish the NIIR and not let it go any further.

7 We suggest that the inaction on the part of the RUC

8 is easily explained by the nature of the communication,

9 not the content, but the nature of the communication.

10 My Lord, the next area we say the Inquiry ought to

11 look at is the idea that in April of 1997 there was some

12 settled plan on the part of INLA to murder Mr Wright and

13 that there was some linkage between the hostage-taking,

14 which was organised by McWilliams and Kenneway, and

15 their subsequent move from Maghaberry to HMP Maze.

16 We suggest there is really little support for this

17 theoretical linkage. It is dealt with in our

18 submissions at 315 and 316 on page 21, which is

19 CS18-0021. There are many represented parties today

20 who, if required to state the evidence in support of the

21 view that the hostage-taking was linked to Billy Wright,

22 would find it difficult to do so. It is an illogical

23 situation in a prison where the prisoners enjoyed more

24 than the usual degree of freedom and autonomy.

25 It is unusual to stage a hostage-taking, if the plan

24
 1 was to murder Mr Wright, when everyone knew that

2 Mr Wright was not in the prison. It is unusual to stage

3 a hostage-taking and fight your way into the prison

4 rather than out of the prison. The most likely

5 explanation for the hostage-taking is that these

6 individuals had formulated a plan in order to attack

7 Mr McAlorum in order to settle old scores. They had

8 done this for a purpose. They wished to gain

9 credibility with the organisation.

10 This can't have been a plan to engineer their move

11 to HMP Maze in order that they could further an INLA

12 plot to murder Mr Wright. That really is again nonsense

13 on double stilts, because we simply have no evidence of

14 that.

15 What we do, of course, have is the explanation which

16 is offered by one of the participants at the

17 Quaker House meeting. You will recall that's exhibit

18 PC01-0020. This is one of the documents which is more

19 difficult to read than anything we have redacted. It is

20 now on screen. You see it is a difficult document.

21 The thrust of that document is important, we

22 suggest. This is a document which has brought matters

23 up-to-date. This is the view of someone who had

24 an interest and an involvement in some of these events.

25 If one looks at the concluding paragraph, one can

25
 1 see that the suggestion that the hostage taking was in

2 some way linked to Billy Wright is nothing more than

3 an opportunistic attempt by a person there at that

4 meeting with a view to planting intelligence with the

5 prison authorities.

6 There is no evidence that INLA had a plan to murder

7 Billy Wright in April of 1997. There is no evidence

8 that Kenneway and McWilliams were part of that plan.

9 What we do know is, of course, if Kenneway and

10 McWilliams had simply applied to move to HMP Maze in

11 1997, that was there for the asking provided that --

12 provided that -- they were acceptable to INLA.

13 Of course, what did happen was, when, in an attempt

14 to even the score, to settle old scores, an attempt was

15 made upon McAlorum, and when the hostage-taking was

16 a demonstration of the triumph of Republicanism over

17 authority, then INLA were prepared to accept McWilliams

18 and Kenneway into HMP Maze.

19 What we suggest, my Lord, is that there is no

20 evidence to link an INLA plan to murder Wright in April

21 of 1997 with the events of December 1997.

22 One has the view of one of the informed participants

23 that the hostage-taking had nothing to do with it at

24 all, and goodness knows how many days we have spent

25 exploring that issue.

26
 1 We therefore have a situation that there is

2 a complete disconnect between April and December. We

3 suggest that is very important when the Panel come to

4 assess its evidence.

5 Now, my learned friend Mr Kane says that in relation

6 to SS01-0218 that information was in some way

7 downgraded, that information was in some way discarded

8 or rubbished as not being reliable.

9 Now, my Lord, that is not the evidence of the RUC.

10 It is not the -- no-one has given that evidence to this

11 Panel, but if I could for one moment depart from my role

12 as counsel and become an observer upon the entirety of

13 the evidence, one does wonder if, indeed, there is any

14 connection between what is said in this blog in,

15 I think, 2008 to the effect that those involved with

16 INLA were putting about the idea Mr Wright was a threat.

17 One does wonder if, indeed, that was the purpose of the

18 information being conveyed to AH. One wonders that, but

19 I don't suggest for one moment that's it is in any way

20 definitive.

21 Why would this person relay that information to AH?

22 Well, of course, the organisation INLA are opposed to

23 this move. What would that do? Well, if we throw in

24 that threat, that might be something else which would

25 influence those who make the decision.

27
 1 We, my Lord, raise that as a possibility, and again

2 I wish to make it absolutely clear that's not the

3 position of the PSNI and that's not the position of the

4 evidence. If I may say so, it's a theory which has

5 perhaps more viability than the conspiracy theory which

6 is put forward by my learned friend.

7 The next area in which my learned friend seeks to

8 attack the RUC is in the method of assessing

9 intelligence. For example, on a number of occasions in

10 his submission, with respect, we say that he seeks to

11 either overstate or misstate or misinterpret the

12 evidence. I am sure that is not intentional, but, for

13 example, in dealing with the question of the Intrep, it

14 is suggested that it is PS01-0205. My learned friend

15 Mr Kane suggests this was some document that was in some

16 way suppressed by PSNI. In fact, the facts in relation

17 to PS01-0205 we suggest are remarkably telling in favour

18 of the RUC.

19 This is the Intrep. This is the filing of the NIIR

20 which goes on to the system on 28 May 1997. When the

21 Inquiry starts, PSNI is faced with an enormous request

22 for information. We deliver the information to the

23 Inquiry and we await developments. The Intrep was not

24 withheld. The Intrep was delivered. It is important it

25 only becomes -- we were only alerted to the importance

28
 1 of the document whenever Mr Batchelor raises issues in

2 the early part of 2007.

3 My learned friend is quite simply wrong to suggest

4 that we have suppressed this Intrep. We didn't know we

5 had it. It having been produced, we have been required

6 to deal with that. We have been required to deal with

7 that in the background of the need to observe all of the

8 importance of the redactions in relation to the

9 summaries.

10 The evidence of DBA we suggest is definitive and

11 convincing and I imagine that even my learned friend

12 Mr Kane would acquit him of any motive of being part of

13 the conspiracy. The Intrep was there. The Intrep was

14 sitting there.

15 He makes a further attack, of course, which is that,

16 because the Intrep was sitting there, this was

17 intelligence which PSNI had, and it wasn't being worked

18 upon, and because it sat there from May of 1997 until

19 Billy Wright's murder, there is some default on the part

20 of RUC because it did not deal with that intelligence,

21 but, of course, that ignores completely the system which

22 has been opened to the Panel of the manner in which the

23 intelligence agencies deal with intelligence.

24 Information is stored, information is accessed,

25 information is linked, and because there was no need to

29
 1 raise this issue between April and December, that is why

2 there is no action taken. It is not because there is

3 any inactivity on the part of the RUC. Indeed, the

4 evidence from DBA again establishes, whilst the Intrep

5 was initially logged on 28 May 1997, it was not accessed

6 by anyone until two years after the murder of

7 Billy Wright.

8 So we suggest it is inappropriate to criticise PSNI

9 in that respect.

10 There is also a generalised criticism on the part of

11 my learned friend Mr Kane that really PSNI missed the

12 opportunity of spotting the gathering storm. We suggest

13 that really the theory put forward there again is

14 unsustainable. The murder of Billy Wright was achieved

15 because ruthless men with nothing to lose saw

16 an opportunity, planned an opportunity, and they did

17 that, we suggest, without necessarily having the

18 approval of INLA. It seems inevitable they would have

19 had outside assistance, but there is nothing to indicate

20 that those who provided outside assistance knew why they

21 were providing that assistance or who the target was to

22 be.

23 It is possible -- and a number of witnesses have

24 done this -- to use the retrospective scope and look at

25 the intelligence which was available in the period from

30
 1 April to December, and, in particular, in the autumn of

2 1997. It is possible to identify parts and say, "Oh,

3 gosh! Yes. That is consistent with some plan", but it

4 is nothing more than consistent. Indeed, it is

5 consistent with many other potential theories.

6 What we say is that, firstly, you shouldn't use the

7 retrospective scope, but, even if you do, it is very

8 difficult to get it to focus to find a clear line of

9 vision which links the decision to move -- the

10 hostage-taking, the decision to move McWilliams and

11 Kenneway, the decision to leave Wright where he was and

12 to link all those events with the opportunistic action

13 on the part of Kenneway and McWilliams to murder

14 Mr Wright.

15 If one looks at the overall intelligence picture in

16 relation to McWilliams and Kenneway, the nature of their

17 offences in the past are known to the Panel. The manner

18 in which they carried out their actions prior to

19 conviction is also known to the Panel. All of the

20 evidence points towards these people having their plan

21 and keeping that plan tight. The fact that no

22 information is reported outside the prison is consistent

23 with that theory. It is not just consistent, we would

24 say, it is almost probative.

25 Attempts have been made to explore the nature and

31
 1 extent of the penetration by the Intelligence Services

2 of the terrorist organisations. The Panel knows the

3 nature and extent. The Panel knows the product of that

4 penetration. Here we have a situation where there is no

5 straw in the wind which points towards the murder of

6 Billy Wright. There is nothing which clearly indicates,

7 "Oh, gosh! There it is. We must stop. That must be

8 a plan to murder Billy Wright. That must be a plan to

9 have firearms in the prison". There is simply no

10 evidence there was such information.

11 The Panel has made it clear that any views expressed

12 by the Inquiry team are not the views of the Panel and

13 PSNI is grateful for that clarification, though, if

14 I may say so, we were not in any way misled. There was

15 a phase of the work of the Inquiry where, before

16 interviews had been completed, before investigations had

17 been completed, the Inquiry team were advancing a theory

18 that PSNI must have possession of some key information

19 which it was not making available to the Inquiry.

20 If I may say so, my Lord, we feel obliged to address

21 this issue with some trepidation, but we must do so by

22 reason of the fact that my learned friend Mr Kane raises

23 these issues in his submission.

24 It seems to be that not later than June 2007 the

25 team were investigating two propositions and these

32
 1 propositions were linked: firstly, that there was

2 a meeting of INLA persons outside the prison who

3 authorised the murder of Billy Wright at some time in

4 December of 1997; secondly, the Inquiry team were

5 indicating they had seen evidence which might suggest

6 that information from the meeting at which the decision

7 to attempt to kill Billy Wright was taken entered the

8 intelligence system and was disseminated amongst

9 agencies in Northern Ireland.

10 The stance which was adopted by the Inquiry team was

11 not outlined to PSNI until September of 2007. The basis

12 upon which the theory was put forward was not outlined

13 to PSNI, and the evidence referred to in the position

14 paper was not addressed to PSNI, but the basis of this

15 line of investigation seems to involve three particular

16 items. They would seem to be, firstly, the alleged

17 announcement by 2-IC INLA when leaving the meeting with

18 Governor Crompton and the late Mr Mogg; secondly, the

19 information which is contained in SS01-0358, about which

20 Mr Kane says quite a lot; and then the subsequently

21 unattributed comment in the NIIR which is SS01-0344 of

22 April 1998.

23 Now, the Inquiry Panel are required to consider what

24 have been described as issues of controversy and

25 uncertainty. We suggest that this is not an issue of

33
 1 uncertainty. We suggest it is an area of false

2 controversy. There is no uncertainty, because our

3 position should be abundantly clear from the evidence of

4 ACC Finlay and ACC Kincaid. The possibility that there

5 was an approval meeting and the possibility that there

6 was some prior knowledge of the murder of Billy Wright

7 and the possibility that that entered the intelligence

8 system was postured, for whatever reason, by the Inquiry

9 team.

10 It has been investigated and it has been

11 a detail-intensive and an unproductive and negative

12 line of investigation, but the evidence of ACC Finlay is

13 absolutely clear, and, of course, it is supported by the

14 evidence of ACC Kincaid, who has provided a report for

15 the benefit of the Panel and who has given evidence

16 before the Panel.

17 The evidence on behalf of PSNI establishes -- and

18 again I have to repeat myself -- there is no knowledge

19 of guns in the prison in April; there is no knowledge of

20 guns in the prison in December; there was no knowledge

21 of any approval meeting in December; there was no

22 knowledge of any plot to kill Mr Wright; there was no

23 knowledge of any intelligence which entered the system

24 which was ignored, suppressed or not dealt with. We

25 have not seen any evidence which is probative of these

34
 1 points. We have done our very best to investigate

2 extensively the theory which was put forward. The

3 evidence which is before the Panel establishes on our

4 view conclusively that such speculation was ill-informed

5 and was nothing more than a presumptive theory.

6 The matter, of course, should not be left there,

7 because we have the evidence of ACC Finlay to the effect

8 that his first indication that this was an area which

9 required any investigation came as a result of a meeting

10 in evidence in Edinburgh in September of 2007. That was

11 a meeting attended by counsel, ACC Finlay and others.

12 All of us have notes of that meeting and we know

13 what was said at that meeting. When ACC Finlay

14 returned, he tasked ACC Kincaid to take certain actions.

15 Those actions lead to the evidence which is offered by

16 ACC Kincaid and by ACC Finlay, but, of course, the pitch

17 has been somewhat muddied by the confusion which we

18 suggest has been caused by Mr McFadden and Mr Taylor in

19 the sequence of interviews which they had with the

20 Inquiry team and indeed in the audience which they had

21 with the Panel.

22 It is quite clear, in our submission, where the

23 accuracy lies in relation to that controversy. The

24 evidence of ACC Finlay is that at no stage ever has he

25 found any evidence of any unregistered, unsupported

35
 1 agents who attended any meeting at any time at which any

2 approval for the murder of Mr Wright was discussed,

3 planned or debated.

4 My learned friend Mr Kane also seeks to perform

5 a construction summons in relation to the manner in

6 which PSNI's response to the position paper is set

7 forth. That is an unproductive way of approaching the

8 matter, and it is unnecessary, because there is firm

9 evidence from ACC Kincaid and ACC Finlay. Nothing could

10 be clearer.

11 In fact, there isn't any evidence

12 that there was any approval meeting.

13 What we do have is an after-the-event stream of

14 reporting in SS01-0358. It suggests there was

15 a meeting. We also have an after-the-event

16 interpretation which contains commentary along the

17 lines of what would have been discussed and what would

18 have been the nature of the debate. That has not been

19 in any way anchored to any other intelligence.

20 One is left with a clear impression that SS01-0344

21 is indeed the type of work on which Assessments Group is

22 engaged: they look at some intelligence, they formulate

23 some views, they speculate, they add context and they

24 try to work out, for example, what are the aspirations

25 of this organisation.

36
 1 That would seem to be the context in which SS01-0344

2 is produced.

3 My Lord, I think I will take just a little longer.

4 I suspect it will take 15 to 20 minutes. I wonder if it

5 would be appropriate to break at this stage?

6 THE CHAIRMAN: Yes. Very well.

7 MR BRANGAM: One point, my Lord, I should say. I don't have

8 LiveNote running at the moment myself, but when I say

9 there is no evidence of any meeting -- I would wish to

10 make that clear -- there is no evidence of any meeting

11 at which anything was discussed. There is SS01-0358

12 after the event, where it is reported that such

13 a meeting took place, but there is nothing prior to the

14 event and there is nothing which indicates that PSNI or

15 the Security Services or the army or Tony Blair or

16 anyone had any knowledge of what was discussed, or,

17 indeed, if that meeting approved the murder, as is

18 suggested by the source in SS01-0358.

19 THE CHAIRMAN: Yes. I always have to read this carefully

20 more than once, but, of course, what is contained in the

21 very first paragraph of SS01-0358 was contemporaneously

22 reported, by which I take it you mean on or about

23 15 December 1997. That much is before the event, but we

24 do not have any information about what passed at that

25 meeting.

37
 1 MR BRANGAM: We do not, my Lord. We shall not say very much

2 about paragraph 1, because we all know we shouldn't, but

3 paragraph 1 is acknowledged to be information which was

4 contemporaneously with the RUC.

5 THE CHAIRMAN: That's what it says.

6 MR BRANGAM: There is no doubt about that.

7 THE CHAIRMAN: Yes.

8 MR BRANGAM: There is no evidence, for example, that, for

9 example, no evidence that the Inquiry has seen

10 documentary evidence to suggest that the INLA operation

11 to kill Billy Wright did not fall outside the expected

12 norm, and the expected norm is where top levels of the

13 organisation would be involved. These are bolt-ons of

14 possible suspicions, but there is no evidence.

15 THE CHAIRMAN: Yes.

16 MR BRANGAM: It will be clear, my Lord, that we reject

17 completely the contents of the position paper for the

18 reasons we have set out, and we don't wish to, if I can

19 put it this way, open old wounds.

20 We have, from time to time, felt bruised by our

21 treatment by the Inquiry and, from time to time, the

22 Inquiry has felt we have been difficult, but that is not

23 our perception, my Lord. We don't wish to go there, but

24 I have to mention these matters, because my learned

25 friend Mr Kane does seek to exploit them in a way which

38
 1 we think is quite inappropriate, bearing in mind the

2 body of evidence.

3 THE CHAIRMAN: Right. Will we make it fifteen -- would you

4 like to start at 11.30 am?

5 MR BRANGAM: Yes, my Lord.

6 (11.10 am)

7 (A short break)

8 (11.30 am)

9 THE CHAIRMAN: Mr Brangam?

10 MR BRANGAM: As your Lordship will know, counsel's estimates

11 of time are notoriously unreliable. I bear in mind what

12 your Lordship said yesterday in relation to these

13 submissions, that essentially we should focus our oral

14 submissions upon major points which we have made in our

15 written submissions and any response to what has been

16 said by other parties.

17 I therefore expect to be a very short time in

18 concluding our submissions, but before doing so, in the

19 course of my submissions earlier, your Lordship did

20 raise an enquiry in relation to what is CS18-0063 and

21 I indicated confirmation of the accuracy of the

22 statement. For the avoidance of doubt, I have checked

23 that and, yes, that is the position.

24 THE CHAIRMAN: Yes.

25 MR BRANGAM: That's at (v).

39
 1 THE CHAIRMAN: "They are in a position to demonstrate to the

2 Inquiry", which is odd, isn't it? Wouldn't you think it

3 would be said "have demonstrated to the Inquiry"?

4 MR BRANGAM: My Lord, certainly I don't want to submit

5 myself to the rigours of a grammatical enquiry. The

6 situation is -- if I rephrase it in this way: this

7 information is with the Inquiry. This information is

8 with the Inquiry and has been for some time, and it

9 arose in circumstances which the Inquiry team are aware

10 of, where the issue of the availability of machinery to

11 transmit messages was something which was put into

12 controversy in the ember hours of the Inquiry.

13 THE CHAIRMAN: I like that expression. We have tucked that

14 one away.

15 MR BRANGAM: Don't jump too quickly, my Lord, since we are

16 not yet there. There may be other points to raise. It

17 is quite clear that the focus of the early part of the

18 Inquiry has in some way not attached importance to these

19 opportunities for transmission of intelligence.

20 Leaving that aside, my Lord, I was dealing with the

21 issue of the missing intelligence theory. It follows on

22 from that, if I might just make the position clearer,

23 I have indicated there is no evidence in support of this

24 and I itemised three particular possible bases for

25 postulating that theory, but I do invite the Inquiry, in

40
 1 looking at my learned friend Mr Kane's submissions, to

2 read them at least as carefully as you will read mine,

3 because Mr Kane at page 208 says -- unfortunately,

4 I don't have the system reference for his submission,

5 because it is not available to me, but at page 208 he

6 says:

7 "Why does Taylor assert that there is

8 on 15 December, which, as we know

9 from Kincaid's evidence, is the date when INLA

10 authorised the murder of Billy Wright?"

11 This is a misinterpretation, we would say, at least

12 of what Kincaid said.

13 I am sure it is accidental, but that clearly is not

14 the situation. What Kincaid was saying was, "I have no

15 indication whatsoever that there were

16 ". The quotation has a basis, in that my

17 learned friend Mr Kane was putting forward

18 a speculation, "What would you, as a CID officer,

19 consider?"

20 You will recall that in looking at SS01-0358, he

21 considered the sequential paragraphs of the possible

22 attendees at a possible meeting, and he expressed views.

23 What we say is that the Panel must be very cautious

24 indeed in looking at my learned friend's submissions,

25 because I am sure accidentally, parts of the argument

41
 1 and parts of the speculation appear to be replicated as

2 facts. As we stand today on 30 June, there's no

3 evidence -- sorry -- there's no probative evidence that

4 there was a meeting at some stage in December when this

5 matter was determined, discussed or approved.

6 We do have evidence of a sort in the post-murder

7 intelligence of SS01-0358, and that information may or

8 may not be accurate. If one looks at the totality of

9 that evidence -- and again I speculate, and perhaps it

10 is unwise to speculate. Perhaps it is unwise, as

11 counsel, to stand back from the canvas and say, "What is

12 this all about?"

13 When one looks at SS01-0358, the only fact

14 essentially which is supported is paragraph 1. When one

15 looks at the content of what

16

17

18 and so forth. So it is difficult to

19 see how there is a firm factual basis for asserting that

20 there was an approval meeting.

21 We suggest, for example, there is no way in which

22 the Inquiry could conclude that INLA knew of this plan,

23 or, if they knew of this plan, what its details were,

24 what was involved, who was to implement it, how it was

25 to be implemented. It is quite clear that INLA did

42
 1 benefit from the thermal. When its members perpetrated

2 this action, it won popular support from a large number

3 of people of the Republican persuasion.

4 THE CHAIRMAN: Benefited from?

5 MR BRANGAM: Benefited from the murder of Mr Wright.

6 THE CHAIRMAN: Yes. Is that what you said?

7 MR BRANGAM: I think so, my Lord. "From this action",

8 I think I said.

9 THE CHAIRMAN: I must put to you Sir Ronnie Flanagan's

10 evidence, which you will remember. When he was shown

11 this document, paragraph 1, he said, "Oh, but they don't

12 have the right people present".

13 MR BRANGAM: Yes, my Lord.

14 THE CHAIRMAN: Assuming that the two others unidentified

15 were not also -- but he said they don't have --

16 MR BRANGAM: They don't have the right quorum, so to speak.

17 THE CHAIRMAN: Yes, to reach a decision with regard to that.

18 MR BRANGAM: My Lord.

19 THE CHAIRMAN: Therefore, there may well have been another

20 meeting at some point in December.

21 MR BRANGAM: An unrecorded meeting in respect of which there

22 is no intelligence.

23 THE CHAIRMAN: Yes.

24 MR BRANGAM: No intelligence of the occurrence of the

25 meeting, no intelligence of the contents of the meeting

43
 1 apart from the post-murder intelligence of SS01-0358.

2 Really, our position is: what did you expect us to do?

3 We didn't have any pre-warning of this.

4 Again, if one looks at the progress of the

5 intelligence throughout the autumn of 2007, we have

6 a series of incidents in the prison. We have conflict

7 on, conflict off. We have "no strike" policies being

8 agreed or a view that that is the acquiescence of the

9 warring factions. We have instruments being taken out.

10 We have some suggestion there might be disruption, but

11 all of those straws in the wind cannot be arranged in

12 any manner to point towards a red flag to anyone

13 involved in intelligence that they should immediately

14 take Mr Wright into protective custody, since some of

15 the enormous number of people who want to murder him are

16 actually planning that event, not with a syringe, not

17 with poison, but with firearms.

18 My Lord, I think the final matter which I feel

19 obliged to deal with is the murder investigation and the

20 post-murder intelligence. I shall try to do that

21 briefly. There are two aspects to this.

22 My learned friend Mr Kane again points the finger of

23 blame and says there is no policy book in relation to

24 the investigation and he seeks to say this is some form

25 of smoking gun, that this is something which reflects

44
 1 confirmation of the conspiracy, which one presumes is

2 linked to October 1996, April 1997, the hostage-taking,

3 the smuggling of weapons into the prison, the transfer

4 of McWilliams, the arrangements in prison in the autumn,

5 the smuggling of weapons into Maghaberry -- into Maze

6 and Maghaberry, in fact, and the murder.

7 Now, it's unfortunate that the policy book was not

8 made available. The evidence in relation to that policy

9 book seems to establish that it has gone missing, but

10 the Inquiry also knows that the Cory investigation

11 raised no complaint about this policy book.

12 What we suggest is it is quite likely that the

13 policy book was, in fact, made available to Cory and in

14 some way has been mislaid. Now, if the matter stopped

15 there, we would suggest that of itself would be

16 satisfactory, but in addition, of course, the Inquiry

17 has had the opportunity of hearing evidence -- first of

18 all, the Inquiry has had the opportunity of interviewing

19 and hearing evidence from the investigating officers,

20 and this itself should quieten any doubts as to the

21 implications of the policy book not being available.

22 The second aspect of the post-murder investigation

23 intelligence which requires attention is the document

24 SS01-0358.

25 Again, my learned friend Mr Kane seeks to exploit

45
 1 this as some major dispute between ourselves and the

2 Service which is connected with the murder of Mr Wright.

3 We say, my Lord, that whatever the level of difference

4 between us is, it is unconnected with the murder of

5 Mr Wright. If you look at SS01-0358, we acknowledge our

6 awareness of the contents of paragraph 1. It has always

7 been our position. There has been no change.

8 In relation to the contents of 2 through to --

9 I think it is 5, possibly 6, but in relation to the

10 remainder, our position is factually quite clear. We

11 don't seek to raise it above establishing those facts.

12 We don't have the source report. We don't have a NIIR.

13 We don't have an Intrep. We have no record. We have no

14 records of links. We have nothing to indicate that it

15 was received.

16 Against that, of course, my learned friend

17 Sir Geoffrey indicates that they do have records that

18 these matters were sent, dispatched and so forth. We

19 don't dispute that. All we say is that we don't have

20 that document. We couldn't have provided any additional

21 information to the investigating officers which would

22 have assisted in any additional line of enquiry. We

23 didn't have the information.

24 That is a fact. It is a free-standing fact.

25 We don't attribute fault or blame. We don't attribute

46
 1 motive. We just don't have it, but what we do, of

2 course, have is a system of record-keeping which

3 indicates other documents of a similar type are there in

4 sequence and that this one, alas, has not made it into

5 that pile.

6 For all of the reasons which we have set out in our

7 written submission and the supplemental reasons which we

8 have sought to argue before the Panel this morning, it

9 is our wish that the Panel will come to a clear

10 determination of fact and that that determination will

11 be there is no State involvement, no involvement on the

12 part of the RUC or any of its members, or any of the

13 security forces in any plot to murder Billy Wright.

14 The RUC documentation has been left, so to speak, in

15 our custody, and PSNI remain willing to deal with any

16 enquiries which the Inquiry Panel would wish to raise on

17 foot of any part of its assessment or determination.

18 We have continued our search throughout the progress

19 of the Inquiry and, as we made the point, indeed, in our

20 written submissions, when the Inquiry has asked for

21 something, we have answered that enquiry. We have not

22 limited our production. We have additionally found

23 additional material and we have made that available to

24 the Panel. We express our willingness to deal with

25 these enquiries, not as some mere shibboleth to be read

47
 1 on to the transcript, but as a genuine declaration of

2 our intent to deal with these matters.

3 If there are any questions, my Lord, I am prepared

4 to deal with them. I am sure I will probably regret

5 such a voluntary submission, but, nevertheless, perhaps

6 now is the best time when the matter is fresh in my

7 mind.

8 RT REV OLIVER: Yes. I would like to ask Mr Brangam about

9 CS18-0020, which is once again about SS01-0218, the

10 information from AH.

11 At the top of page 20 there is a speculative

12 paragraph about what the office was like and what kind

13 of communication took place between different people

14 working in Assessments Group. Sub-paragraph (e)

15 emphasises the contact of HAG with the Minister,

16 John Steele, Brian White and others. In paragraph (f)

17 you say:

18 "The most likely explanation for the decision not to

19 transfer Wright is that those advising the Minister did

20 inform him of this specific risk, ie the plan by the

21 INLA to murder him."

22 What seems to be absent from this is any recognition

23 of the evidence which Sir John Wheeler gave when he came

24 before the Inquiry, when he appeared to be surprised by

25 the content of that document. Are you saying that you

48
 1 reject his evidence on that point or that he was

2 pretending to be surprised? Because you appear to come

3 to the conclusion that he did actually have the

4 information.

5 MR BRANGAM: My Lord, if I might make it clear, the content

6 at sub-paragraph (f) must be taken in the context of

7 what we said at paragraph 5, and it is not necessary to

8 wind back to that. We suggest the Panel is entitled to

9 consider the high degree of likelihood that the gist,

10 thrust or sting of the information received by AH from

11 his source did, in fact, find its way to the Minister.

12 Again, my Lord, this goes back, if I may say so, to

13 professional ethics. Sir John Wheeler says, "I didn't

14 get that information. I am surprised to see that

15 information". We raise this possibility. It is not

16 unreasonable to suggest that, after so many years in

17 relation to this troubled transaction, which was on,

18 off, the subject of discussion, one does get the

19 impression that there were various lobbies who were

20 competing for various outcomes.

21 We raise the possibility simply that, in fact, this

22 information did get to Sir John. He says that it did

23 not. We don't -- we cannot dispute that, but it is

24 a matter which we would say the Panel is entitled to

25 consider. It is possible that sub-paragraph (f) has

49
 1 overstated the matter, and for that I apologise, but

2 read in its entirety, our position should be clear.

3 THE CHAIRMAN: In other words, Sir John did know but has

4 forgotten?

5 MR BRANGAM: Yes, my Lord. Your Lordship puts it most

6 concisely, yes, which I may say is not at all

7 unreasonable.

8 RT REV OLIVER: Can I just add further to that, that if he

9 didn't know, but had known, it would not have affected

10 the decision he made.

11 MR BRANGAM: Indeed, my Lord. This ties in with the primary

12 point which we make, which is linkage. If one winds

13 bark the action and goes to 22 April, and all of the

14 information is put before Sir John, what would he have

15 done? He says what he would have done. He would have

16 consulted Mr Shannon. He would have wanted to be

17 assured that the safety of Prisoner Wright could be

18 protected.

19 A major point which we make, my Lord, is this: it is

20 unsatisfactory that SS01-0218 was not dealt with in the

21 way in which it should have been dealt with. That is

22 unsatisfactory. We don't resile from it. If it had

23 been dealt with, it is our submission that there is

24 almost an inevitability that the same decision would

25 have been made.

50
 1 The man was to be put into a segregated prison,

2 which was to be run as a prison. It had a number of

3 security features which were geared to keep apart

4 warring factions, to segregate them, to protect them

5 against doing harm to each other and doing harm to

6 property.

7 What we say, my Lord, is that, even if there was no

8 default on the part of the RUC, it would not have

9 contributed to a decision which would have afforded

10 Prisoner Wright any additional level of protection. His

11 protection was not diluted because of the specific

12 threat that he might be attacked with a syringe.

13 We believe that to be a most important point,

14 my Lord: if your Lordship is in any doubt, I am prepared

15 to submit to further questions.

16 THE CHAIRMAN: No. Thank you very much, Mr Brangam.

17 Mr Beer, do you wish to follow?

18 Submissions by MR BEER

19 for CROWN SOLICITORS

20 MR BEER: Yes. Thank you, my Lord.

21 Can I begin with an apology? Our written

22 submissions appear in their printed form -- that's in

23 file CS17 -- in rather small print. We don't know how

24 that has happened, but we hope that you do not need

25 a magnifying glass in order to see the good points that

51
 1 we make in them.

2 THE CHAIRMAN: Presumably they'll spring from the page,

3 won't they?

4 MR BEER: Absolutely. Can I start these submissions briefly

5 by examining the extent to which the conspiracy or

6 collusion allegation, using those words as shorthand for

7 the intentional facilitation of death by a wrongful act

8 in the terms of reference is pursued?

9 It appears from the written submissions lodged by

10 the Wright family that the allegation that any of our

11 clients, the CSO clients, conspired or colluded in that

12 way in the death of Billy Wright is not pursued. My

13 clients warmly welcome that. The reasons why I suggest

14 it is plain that the allegation is not pursued are

15 three-fold: firstly, and determinatively, nowhere in the

16 Wright family's 240 pages of closely-typed submissions

17 is such an allegation made.

18 Given that it is an allegation of the utmost

19 seriousness, it would have to be clearly and expressly

20 made. It ought not to be for witnesses to divine or

21 imply from a document whether such a serious charge is

22 made against them. It is not expressly made and,

23 therefore, it is not pursued.

24 Secondly, although on page 1 of the submissions of

25 the Wright family -- for reference that's CS19-0002 --

52
 1 Mr Wright's statement that he believed that

2 Billy Wright's murder was State-arranged,

3 State-sponsored and State-sanctioned in collusion with

4 some of those in prison management is set out. This

5 appears to be a mere recitation of historical narrative

6 as opposed to a statement that this allegation is, in

7 fact, pursued and certainly pursued against any of my

8 clients or, indeed, NIPS in general.

9 Thirdly, when the Wright family does make

10 an allegation of collusion, intentional facilitation of

11 death by the commission of a wrongful act, it does so

12 expressly. See, for example, the expression allegations

13 made against the Security Service and the RUC and

14 individuals within those organisations in chapter 6 of

15 the Wright family submissions.

16 So it is on that basis that I address the Panel.

17 Accordingly, these submissions focus on the task of

18 addressing issues relating to nine individuals who gave

19 evidence to the Inquiry. They are: Seamus McNeill,

20 Brian Barlow, Jacqueline Townsend, Kenneth Crompton,

21 Maureen Johnson, Richard Malloy, Paul Davidson and

22 Brian Loftus. In the submissions I intend to deal with

23 Mrs Johnson and Mr Malloy together and Mr Davidson and

24 Mr Loftus together.

25 Submissions are made on behalf of those nine

53
 1 witnesses as issues have arisen in the written

2 submissions of other parties, in particular those of the

3 Wright family that require to be addressed.

4 Before making those submissions, however, there are

5 some general points that we would ask the Panel to note.

6 First, the overwhelming majority of the CSO

7 witnesses are not the subject of criticism by any of the

8 other parties to this Inquiry. That reflects upon the

9 honesty of the evidence that they gave and their

10 diligent, effective and brave contributions to the

11 running of the Maze at this difficult time.

12 Second, we are pleased to note that Stephen Davis is

13 not criticised in any party's written or, so far, oral

14 submissions, nor was he identified in Counsel to the

15 Inquiry's written submissions as even being vulnerable

16 to a potential criticism. Instead, he is implicitly

17 praised by the Wright family for, amongst other things,

18 the quality of his reporting.

19 Third, the Wright family places no reliance on

20 Marcus Lewis. Given the limited submissions made on his

21 behalf yesterday and the limited amount that was said on

22 his behalf in writing, I do not intend to develop any

23 submissions in reply.

24 Fourth, the Wright family -- correctly, we say --

25 support the account of Don McCallum as against that of

54
 1 Governor McKee in relation to the issue of the standing

2 down of the watchtowers, and I say no more about it.

3 Fifth, the Wright family say very little, if

4 anything, about the Thomson/Gillam allegations, the

5 meeting of 24 October 1997. These have been addressed

6 by us in writing and we propose to say no more about

7 them.

8 Sixth and finally, we note the Wright family do not

9 associate themselves with the rather unusual criticism

10 floated in Counsel to the Inquiry's written submissions

11 in relation to Patrick Maguire: namely, that his

12 evidence lacked clarity about intelligence roles in the

13 Maze. We have fully addressed this criticism in our

14 written submissions and do not rehearse that issue now.

15 So can I turn to the submissions that are made on

16 this occasion? Firstly, submissions on behalf of

17 Seamus McNeill. These submissions supplement briefly

18 the written submissions made on behalf of Seamus McNeill

19 at CS17-0119 and following. They address paragraph 3.9

20 of Counsel to the Inquiry's submissions: namely, whether

21 Mr McNeill gave Billy Wright a guarantee of his safety

22 in the Maze.

23 The Panel will have seen that we set out a multitude

24 of reasons in our written submissions as to why the

25 Panel should find that no such guarantee was given, not

55
 1 the least of which is that Mr McNeill was an honest and

2 reliable witness, who told you in clear terms that he

3 gave no such guarantee, that he was not in a position to

4 give such a guarantee, and in that fact he is supported

5 by many other witnesses, and that common sense suggests

6 no such guarantee was or could ever have been given.

7 Indeed, Sir Richard Tilt concludes that it was unlikely

8 that such a guarantee would have been given. See for

9 your note WS380-0028, paragraph 5.1.17.

10 In the Wright family's submissions, however, it is

11 suggested -- for the note CS19-0064, lines 8-18 -- that

12 there is spelling evidence that Mr McNeill visited

13 Billy Wright on 21st April 1997, that Billy Wright

14 signed the petition later that day and, thirdly,

15 therefore, it is contended that NIPS, in the person of

16 Seamus McNeill, gave Billy Wright an assurance to the

17 effect that his safety could be guaranteed. Each of

18 those three building blocks is examined now.

19 As to the first of them, namely, the suggestion that

20 there is compelling evidence that Seamus McNeill visited

21 Billy Wright on 21 April 1997, the Wright family rely on

22 two pieces of evidence in this regard: firstly,

23 a line in a memorandum written by Seamus McNeill on

24 Friday, 18 April 1997, where he refers to an intention

25 to see Billy Wright on the following Monday. For the

56
 1 note that's at NP21-0337.

2 Secondly, reliance is placed on Duncan McLaughlan's

3 diary of 23 April 1997, where he refers to being told by

4 Billy Wright that Seamus McNeill had told him "on

5 Monday" that the decision had been that he,

6 Billy Wright, should be transferred. For the note,

7 that's witness statement WS315-0073 and the relevant

8 passage is at the top of the second paragraph on

9 page WS315-0074.

10 Now, in relation to the first piece of evidence it

11 must be observed in fairness to Mr McNeill that he was

12 not shown this minute when he was interviewed over the

13 course of several days for the purposes of giving his

14 witness statement to the Inquiry, a 71-page witness

15 statement, that it did not form one of the

16 58 productions to his witness statement, that he was not

17 shown the document as part of the lever arch file of

18 material that he was kindly shown by Counsel to the

19 Inquiry before he prepared to give evidence, and it was

20 not shown to him once over the four days of exhausting

21 evidence that he gave between 18 and 22 February 2008,

22 namely, Days 33-36; and, finally, that his attention,

23 nor that of any other witness, has been drawn to this

24 one line in the memorandum in the 16 months since

25 Mr McNeill gave evidence.

57
 1 So the first time that reliance has been placed on

2 this one line in a memorandum was in written submissions

3 of the family received by us last Thursday. So there is

4 real procedural unfairness in seeking to rely on this

5 single line.

6 THE CHAIRMAN: When you say a minute --

7 MR BEER: Yes.

8 THE CHAIRMAN: -- is that right -- or memorandum.

9 MR BEER: It is a minute or memorandum.

10 THE CHAIRMAN: That's to be found in Duncan McLaughlan's

11 diary, is it?

12 MR BEER: No. There are two things the family rely on in

13 saying there was a meeting on 21 April, which was

14 a Monday. They rely on a minute that Mr McNeill wrote

15 on the 18th --

16 THE CHAIRMAN: Yes.

17 MR BEER: -- expressing an intention to see Billy Wright on

18 the Monday. Secondly, they rely on an entry in

19 Mr McLaughlan's diary, dated 23 April, saying

20 "Billy Wright told me he had seen Seamus on Monday", ie

21 referring back to the 21st.

22 I am addressing the first of those sources of

23 evidence at the moment: namely, Mr McNeill's minute of

24 18 April. The point I am simply making is, until last

25 Thursday, nobody had ever shown it to him.

58
 1 He was interviewed over, I think, three days.

2 Nobody showed it to him. He had 58 productions to his

3 71-page witness statement. He had a lever arch file of

4 material shown to him before he gave evidence. He gave

5 evidence over four days 16 months ago. The first time

6 anyone draws it to his attention is last Thursday when

7 we receive the submissions of the Wright family saying,

8 "Ah, you ought not to rely on the kind and honest

9 Mr McNeill, because there is this undiscovered minute

10 and a line in it saying 'I intend to see Billy Wright on

11 the Monday' and Billy Wright's petition was signed on

12 the Monday, therefore you can conclude it was in the

13 course of the meeting on the Monday that the guarantee

14 was given".

15 That's the allegation by Mr Kane.

16 What I am saying on this point is that there is real

17 procedural unfairness, because he hasn't been given

18 an opportunity to speak to this document. A number of

19 questions arise from the minute.

20 First, it states an intention to see Billy Wright

21 and is not a record of a visit having taken place.

22 Secondly, did, therefore, Mr McNeill actually see

23 Billy Wright on that day? Thirdly, what other evidence

24 is available of such a visit having taken place on that

25 day, ie the visitors' book at Maghaberry, the gate log

59
 1 at Maghaberry, perhaps the PSU records at Maghaberry or

2 any other records that would show the admission of

3 an outsider into Maghaberry or the production of

4 a prisoner to see Mr McNeill, because you will recall he

5 said in evidence that he never saw Billy Wright in his

6 cell. They always sent him off to an office to speak to

7 him.

8 Now, in relation to the second piece of evidence

9 relied on, a line in Mr McLaughlan's diary, three points

10 must be made.

11 Firstly, this was never shown to Mr McNeill when he

12 was giving evidence. No blame, of course, is attached

13 to anyone for that fact, as Mr McLaughlan's diary only

14 emerged after Mr McNeill gave his evidence. He gave his

15 evidence in February and the diary emerged in April, but

16 it remains a fact that by this chronology the witness

17 was denied the opportunity to be asked questions about

18 this issue.

19 Now, in this regard it should be noted the family's

20 submission at CS19-0064 at line 15 -- thank you very

21 much. Line 15 states:

22 "Despite Mr McNeill's denial during oral evidence

23 regarding this particular meeting, the fact remains that

24 he rather helpfully documents his intention to see

25 Billy Wright that day."

60
 1 That is simply wrong. There was no denial by

2 Mr McNeill that he saw Billy Wright on 21 April, because

3 nobody ever put it to him that he saw Billy Wright on

4 21 April, because the first time reliance has been

5 placed on the minute of the 18th or the diary entry for

6 the 23rd was last Thursday. So it's wrong to suggest

7 that Mr McNeill denied during oral evidence that he met

8 Billy Wright on 21 April. He wasn't asked the question

9 and, therefore, had no opportunity to make such

10 a denial.

11 THE CHAIRMAN: But he did see Billy Wright, didn't he?

12 MR BEER: He saw him on three occasions.

13 THE CHAIRMAN: Yes.

14 MR BEER: He saw him, firstly, on 7 April, a Monday.

15 THE CHAIRMAN: Yes.

16 MR BEER: He saw him secondly on 14 April, a Monday, and

17 then he saw him on 24 April, which is obviously after

18 the petition was signed and, therefore, can't be

19 relevant to the issue of whether or not a relevant

20 guarantee or assurance was given.

21 Second, the entry in Mr McLaughlan's diary is

22 frankly inconclusive as to which Monday Mr McLaughlan

23 was referring to. I wonder whether we could have up,

24 please, WS315-0073.

25 This is an extract from Mr McLaughlan's diary. You

61
 1 will see there is an entry for Thursday, 10 April and

2 then an entry for Wednesday, 23 April 1007. I think

3 that's 1997. So this is a retrospective entry catching

4 up on events that have occurred between 10 April and

5 23 April. Then if we go over the next page, please, to

6 WS315-0074, please, still part of the entry for

7 23 April, the second paragraph:

8 "I saw Wright toward the end of the afternoon",

9 that's presumably, although one is not sure, 23 April,

10 "and told him that he would [be] transferred tomorrow."

11 That's why I say "presumably", because the transfer

12 was on one set of documents scheduled to take place on

13 the 24th:

14 "He had been told by Seamus McNeill on Monday that

15 the decision had been that he should be transferred."

16 Why I say it is frankly inconclusive as to which

17 Monday that's referring to is that it is established and

18 it is admitted and known that Mr McNeill had seen

19 Billy Wright on the previous Monday, ie 14 April.

20 Third, this entry -- the content of this entry is

21 inconsistent with a reference to a meeting on 21 April,

22 because it states that Mr McNeill had told Billy Wright

23 that he would be transferred:

24 "He had been told by Seamus McNeill on Monday that

25 the decision had been that he should be transferred."

62
 1 But Mr McNeill had already told Billy Wright that

2 fact twice, once on Monday, 7 April, and once on

3 14 April, also a Monday.

4 So, turning to the second building block in the

5 argument, and if we can return to the family's

6 submissions, please, CS19-0064, and if you highlight

7 lines 8-18, please, line 13, having established on the

8 Wright family submissions a meeting on 21 April, it is

9 said at line 13:

10 "It was later this same day that Mr Wright signed

11 his petition to transfer to Maze."

12 This is the second building block in the argument.

13 It appears to be suggested that the signature of the

14 petition "later that same day" increases the probability

15 that such a meeting occurred, and, therefore, that such

16 an assurance was given. There is no evidence whatsoever

17 in support of the assertion that it was later the same

18 day that Mr Wright signed his petition.

19 First, even if a meeting did take place on 21 April,

20 there is no evidence as to the time at which it

21 occurred. Secondly, there is no evidence as to the time

22 at which the petition was completed by Billy Wright.

23 All we know was that it was issued to the petition on

24 21 April, that it was signed on 21 April, and was noted

25 as having been returned on 22 April.

63
 1 We need not turn it up, but the reference for that

2 is NP21-0356 and NP21-0358.

3 There is not any evidence of the timing of the

4 signature of the petition, whether it was later in the

5 day or earlier in the day. So at the present point, the

6 family are relying on some documents that were never put

7 to a witness to establish that a meeting took place and

8 then suggesting on the basis of no evidence that it was

9 later that day that Billy Wright signed his petition.

10 The third building block in that -- and all of these

11 building blocks need to be put in place -- namely, that

12 a meeting on 21 April and the signature of a petition

13 later that day increases the probability that

14 an assurance was given in the course of the meeting --

15 that must be suggestion, because it was presumably fresh

16 in Billy Wright's mind and, therefore, he wrote it down.

17 That must be the logic of the submission.

18 But this is not logical, and fails to address the

19 five, we would submit, compelling points made in our

20 submissions as to why no such guarantee was given. The

21 reliability of Mr McNeill. We invite you to cast your

22 minds back and recall him as a witness over his four

23 days and the evidence that he gave. Is he somebody that

24 is lying to you? That's effectively the submission

25 that's being made. Plain answer: no. The common sense

64
 1 position, everyone who has spoken to this issue says,

2 "No, you don't give prisoners guarantees of safety. You

3 would be mad to do so".

4 Thirdly, the care with which Mr McNeill approached

5 his task, the archetypal civil servant, writing down

6 everything that he said and was said to him in verbatim

7 fashion, almost like a transcript.

8 Fourthly, on such an important issue, would he omit

9 mention of it to his masters back at NIPS Headquarters

10 and in the NIO, given on such a delicate issue where he

11 was reporting his discussions on Billy Wright on issues

12 such as Irish history and Marxism, completely collateral

13 issues, simply not include this?

14 Lastly, if such a guarantee was actually given,

15 wouldn't Billy Wright have mentioned it somehow in the

16 months after his movement to the Maze, sought to rely on

17 it whenever he made a demand or, indeed, outwardly to

18 the press or the public at large when he was trying to

19 negotiate some favourable treatment for his LVF

20 colleagues? "I have been given a guarantee of my safety

21 by the NIO".

22 The reason why he could not go public on it, he

23 couldn't rely on it, is because he knew it would be

24 denied, because he knew it hadn't occurred.

25 So in the circumstances, we invite the Panel to hold

65
 1 that no such guarantee of safety was given by

2 Mr McNeill.

3 I turn to the second set of submissions and these

4 are submissions made on behalf of Brian Barlow. Can we

5 have on the screen, please, CS19-0091? Thank you. Can

6 we highlight between lines 20 and 30, please? This is

7 a submission of the Wright family. There is no direct

8 or even indirect or implicit criticism of Mr Barlow.

9 Instead, the rather more modest comment that he

10 "prized the volume of incoming information rather too

11 highly and above its effective collation and analysis"

12 is made, but in fairness to Mr Barlow, despite the

13 absence of a direct criticism, even this more modest

14 submission requires to be addressed and squashed.

15 The evidence for the point that is sought to be made

16 is said to come from paragraph 33 of Mr Barlow's witness

17 statement. One can see that, because if you look at

18 footnote 437 there -- if we can expand the page out,

19 please, footnote 437 refers down at the bottom of the

20 page for the support for the submissions made to

21 paragraph 33 of Mr Barlow's witness statement.

22 Can we look at the same time on the same screen,

23 please, at witness statement 15 at page 98, namely

24 Mr Barlow's witness statement? WS15-0098.

25 THE CHAIRMAN: It is not coming up.

66
 1 MR BEER: It appears to be a wrong reference. It is

2 undoubtedly my fault. The three points that would have

3 emerged from sight of the witness statement are as

4 follows.

5 Firstly, the paragraph in the witness statement does

6 not make good the point that is sought to be made.

7 MR JOHNSON: My Lord, if it assists, I think it is

8 WS015-0098.

9 MR BEER: As is custom, I have been omitting all of the

10 zeros. Otherwise, we will be here all day. Thank you

11 very much, Mr Johnson.

12 Just to recap where we are, lines 27 to 30 on the

13 left-hand side of the page suggest that Mr Barlow prized

14 the volume of incoming information rather too highly

15 above its effective collation and analysis.

16 This is said to come from paragraph 33 of his

17 witness statement. Could I invite you to read

18 paragraph 33 of the witness statement, WS015-0098? It

19 is on the right-hand side of the page.

20 It will be necessary if the operator can go over --

21 thank you very much -- just to read the end of that

22 paragraph, on WS015-0099.

23 So the first point is the submission made is

24 unrelated to and is not made good by the paragraph of

25 the witness statement upon which reliance is placed.

67
 1 Secondly and relatedly, paragraph 33 of Mr Barlow's

2 witness statement speaks to the means by which

3 intelligence was submitted to the Security Department,

4 not what happened to it once it got there.

5 Thirdly, and again relatedly, the following

6 paragraphs in the witness statement, 34, 35, 36 and 37,

7 if we can look at those, please, WS015-0099, address the

8 issue of what the Security Department did with

9 intelligence information once it was received in the

10 Security Department: namely, it was copied verbatim on

11 to SASHA for the purposes of future searching.

12 So the point made by the Wright family that there

13 was a variety of means by which intelligence and

14 information was submitted on half sheets,

15 electronically, other handwritten media, written in

16 a range of handwriting styles, which was a deeply

17 uninspiring task, namely, the reading of them, and that

18 Mr Barlow prized too much the volume or increased volume

19 of intelligence information above its effective analysis

20 and collation is simply wrong, because, as he plainly

21 says, once it was received in the Security Department,

22 it was copied verbatim on to SASHA. It didn't matter

23 the means by which it was received.

24 Fourthly, and perhaps extraordinary, no-one asked

25 Mr Barlow about this passage in his witness statement

68
 1 when he gave evidence over the course of three days,

2 Days 64-66. Still less did they suggest to him that he

3 prized too highly the volume of incoming information

4 above its effective collation or analysis. Still less

5 did they suggest that he should be the subject of

6 criticism for placing a little too much emphasis on the

7 volume of information received to the detriment of the

8 collation and analysis of it.

9 Fifthly, the Security Department under the

10 leadership of Steve Davis was self-critical and did

11 recognise the areas in which it needed to develop. See

12 by way of example only Steve Davis' long report to

13 Mr Mogg seen by Brian Barlow on 28th October 1997. If

14 we could look at that, please. NP22-0528.

15 This is one of Mr Davis' two long reports. You will

16 see that at the top it is annotated as having been seen

17 by Brian Barlow on 28th October 1997. Then at

18 page NP22-0532, please, Mr Davis highlights the issues

19 or areas or systems of concern and under (a) sets out

20 the Security Department.

21 In that paragraph, he firstly -- it is not necessary

22 to read all of it in detail now, but in summary

23 identifies the negation of the value of a security

24 field officer, secondly, the need for a full-time

25 collator, thirdly, the duplication of information by

69
 1 reason of the computerisation of records, and, fourthly,

2 the under-developed role of the Security Department in

3 the policing of systems and routines around the prison.

4 So far from Mr Davis' deputy, Mr Barlow, being

5 unaware or placing too highly the receipt or increased

6 receipt, increased volume of security information, this

7 Security Department was self-critical. It was aware of

8 the areas in which it needed to develop.

9 Of course, both of them were excited and pleased

10 after Mr Davis joined the department in relation to the

11 increased volume of information received from officers,

12 but that can't be equated, and there is no evidence that

13 that increased volume led to a neglection of the

14 collation or analysis of the information.

15 So for all of those reasons, the comments made

16 against Mr Barlow's name in the Wright family

17 submissions we say with respect are misplaced.

18 Can I turn thirdly to the submissions that are made

19 on behalf of Jacqueline Townsend? Although the Wright

20 family correctly and responsibly do not make any

21 criticism of Jacqueline Townsend, who they sometimes

22 call Jacqueline Wisely in their submissions, they do

23 suggest that it is probable that INLA received details

24 of the fact that Billy Wright was going to receive

25 a visit on 27 December 1997. To look at that, can we

70
 1 see CS19-0027, please? If we look at line 20 at the

2 bottom of the page, having dealt with the provision of

3 the INLA list to the LVF the family continue:

4 "The position as to whether the visits list that

5 went down the INLA wing contain the names of LVF

6 prisoners is not quite so clear."

7 Over that paragraph and the following paragraphs the

8 family rely on four sources for the assertions that they

9 make. The first of them we can see on the screen:

10 "Noel Nicholl, the SIO, did not think that there was

11 a concrete result in relation to the allegation that

12 a list containing Billy Wright's name had been

13 circulated."

14 Then it says the second point they rely on:

15 "It appears, however, that as far as

16 Christopher McWilliams was concerned, INLA had a copy of

17 the LVF's visiting chart."

18 Then if we highlight the next part, the third thing

19 relied on. It is a further note that the Narey Report

20 considered:

21 "It is probable that this list was inadvertently

22 given to both INLA and LVF prisoners."

23 Then fourthly and finally:

24 "It is important to take into account the following

25 provision from the Cory Collusion Inquiry Report which

71
 1 stated", over the page, please, CS19-0028, and then the

2 quotation is set out from Cory:

3 "Prison officials have since acknowledged that the

4 mistake went even further. As a rule, each wing in H6

5 would only receive its own visitors' sheets which would

6 list the prisoners from that wing who were expecting

7 visitors on a particular day. However, on Friday,

8 26 December, both the LVF and INLA wings received the

9 visitors' sheets for all of the wings in the block. As

10 a result, each faction must have been aware of the

11 persons in the opposing wing who would be called for

12 visits on 27 December."

13 Then the conclusion which is reached by the Wright

14 family or the submission at line 8:

15 "It would appear from the above that it is probable

16 that INLA received details about the fact that

17 Billy Wright was going to receive a visit on

18 27 December 1997."

19 So that's the submission made and the four sources

20 for it are set out beforehand: Noel Nicholl,

21 Chris McWilliams, Narey and Cory.

22 In fact, the Inquiry has heard no evidence that the

23 LVF list was provided to INLA and the Inquiry should so

24 find.

25 In relation to the four sources that are relied on,

72
 1 first, Noel Nicholl's evidence. Reliance on this

2 evidence is, with great respect, rather weak. He was

3 asked about the conclusion of the police investigation

4 into whether the LVF visit sheets were passed to INLA

5 and said at Day 88, page 172, line 23 and following:

6 "Question: What was the result of that

7 investigation?

8 "Answer: I don't think there was a concrete result

9 on that, but I think overall it was fairly clear that

10 when there was a visit, the name of the prisoner would

11 be shouted through the intercom and it would have been

12 heard clearly.

13 "Question: In any event?

14 "Answer: In any event.

15 "Question: Regardless of the use or abuse of visitor

16 lists?

17 Answer: Yes."

18 So the SIO says there is no concrete result.

19 Obviously that doesn't assist anyone to prove that the

20 LVF list was provided to INLA. It's of no evidential

21 value what whatsoever and certainly can't be the basis

22 for a positive finding that the lists were so passed.

23 Secondly, reliance is placed on

24 Christopher McWilliams' Newsnight interview. Can we

25 look at that, please? NP41-0159: McWilliams, third

73
 1 line in, says:

2 "It's the norm in prison to be handed in the list

3 of -- of visits, right? It just so happened at that

4 particular time that Billy Wright or -- sorry -- not

5 Billy Wright. It just so happened at that particular

6 time that our list, our visiting list went to the LVF

7 wing and the LVF wing went -- the LVF's visiting chart

8 went to our wing."

9 So that part of the interview tends to suggest that

10 he thought at least that the LVF's visiting chart went

11 to his wing. Then he is asked a direct question by the

12 interviewer:

13 "Question: So you saw that Billy Wright was going to

14 have a visit?

15

16 "Answer: No, we didn't see that Billy Wright --

17 I actually -- it didn't even come to our notice at that

18 particular time."

19 Then he says intelligence led them to believe that

20 Billy Wright would be having a visit on this occasion.

21 So three points arise from the reliance by the

22 family on that passage of the Newsnight interview.

23 First, it is not evidence. You haven't heard from

24 McWilliams by way of statements or evidence.

25 Second, the excerpt is contradictory on its face.

74
 1 Third, it is wrong in principle to pick those parts

2 out of the interview which suit the Wright family,

3 suggest that McWilliams is to be treated as a witness of

4 truth in that regard, and then entirely reject the rest

5 of the account that he gave in interview about the

6 non-collusion of State agencies in the death.

7 The third source relied on is the Narey Report. Can

8 we look at that, please? NP01-0022. If we can

9 highlight paragraph 3.17, please, it is the fourth

10 line of that:

11 "We have seen a document listing the names of

12 H Block 6 prisoners to be visited on Saturday,

13 27 December. Mr Wright's name appears along with other

14 LVF and INLA prisoners. It is probable that this list

15 was inadvertently given to both INLA and LVF prisoners.

16 This should not have happened, but we do not think this

17 was key to the subsequent killing."

18 So the family are here relying on the Narey

19 conclusion. The problems for the Inquiry relying on

20 this evidence are as follows: firstly, the report does

21 not set out the reasons for its conclusion that the LVF

22 list was probably given to INLA.

23 In particular, secondly, it does not address the

24 fact that the list with INLA and LVF names on it was, in

25 fact, marked up as being bound for the LVF, not for

75
 1 INLA.

2 Third, it does not address the fact that the list

3 bound for the A and B wings, the INLA wings, only had

4 INLA names on it.

5 Fourthly, it assumes, wrongly, that there was one

6 list which had the names of all HB6 prisoners on it when

7 that was simply not the case.

8 THE CHAIRMAN: I am right, I think, in saying that the list

9 that went to the LVF included some INLA names.

10 MR BEER: Absolutely. We have made that point.

11 THE CHAIRMAN: That much is clear.

12 MR BEER: Absolutely, but what this, with respect, does is

13 grossly over-simplifies the position. You have had the

14 benefit of examining very carefully the three iterations

15 of the lists and of hearing directly from the witnesses.

16 That paragraph there is simply incorrect. Mrs Townsend

17 has acknowledged that it was an error on her part, for

18 which she apologises, but we are looking at the obverse

19 situation here.

20 The fourth source relied on is the Cory Report.

21 This is IR01-0066. It is paragraph 3.149. The problems

22 with reliance on this paragraph are again as follows.

23 Firstly, although there is a reference to

24 a concession by Prison Officers, the report does not

25 state who those Prison Officers are or in what document

76
 1 or documents the concessions were made.

2 Secondly, it does not identify any direct or

3 indirect evidence to show that the concession was

4 rightly made.

5 Thirdly, there is no evidence that the LVF list was

6 present in the INLA A and B wings when they were

7 searched following the murders.

8 In the circumstances, having heard direct evidence,

9 not simply read documents, as was the case with Narey

10 and Cory, the Inquiry should find that the LVF visit

11 sheets were not passed to INLA before Billy Wright's

12 murder.

13 THE CHAIRMAN: But it doesn't say, does it, in this

14 paragraph that LVF names were in an envelope and were

15 sent down to the INLA contingent, does it? Does it?

16 MR BEER: If we can remove the highlighting, please.

17 THE CHAIRMAN: It does, of course, say that the LVF list

18 included some of the names, but it doesn't say the INLA

19 list included LVF names.

20 MR BEER: Your Lordship has made an additional point for me.

21 If we can go over to the next page, please, IR01-0067,

22 3.1.5.1.

23 THE CHAIRMAN: Ah!

24 MR BEER: There it does seek to make the suggestion.

25 THE CHAIRMAN: It does.

77
 1 MR BEER: That's my fault for accepting at face value the

2 correct citation from the Wright family's submissions.

3 In fact, it's two paragraphs further on.

4 THE CHAIRMAN: The evidence we have heard would not bear

5 that out.

6 MR BEER: No. So the simple point I make is you have heard

7 all of the evidence. You have seen the whites of the

8 eyes of the witnesses. You have looked at the three

9 iterations of the document directly. The two

10 conclusions that are reached by Narey and Cory

11 respectively simply don't stand up.

12 Also, it is not the way that this Inquiry has

13 performed its task, with respect. It has not found

14 itself bound by anything that Cory says or Narey has

15 said, and simply to pluck two parts out of each report

16 which happen to support a submission that's made is

17 a rather odd way of going at things. You have to look

18 at the primary evidence, not the opinions of document

19 readers years later.

20 My Lord, could I turn to the fourth set of

21 submissions, those on behalf of Kenneth Crompton, and in

22 particular two issues in relation to Mr Crompton, where

23 the written submissions that we have made need

24 supplementing?

25 Firstly, in relation to the suggestion by the POA in

78
 1 chapter 10 of their written submissions that on

2 18 December 1997 two INLA did shout, "They think we have

3 a gun", in the presence of Mr Crompton and Mr Mogg; that

4 this means that the probable topic of conversation that

5 preceded the shout was that they, Mogg and Crompton, had

6 received information of the existence of a gun on the

7 INLA wings; and that the Inquiry should criticise

8 Mr Crompton if it is satisfied that his failure to

9 record the incident is an intentional reluctance to

10 assist the Inquiry.

11 The second point we address is in relation to the

12 submission by the Wright family that Kenneth Crompton

13 made a negligible contribution to effective management

14 in the Maze in the 41/42 working days between his

15 arrival and the death of Billy Wright.

16 The issues that arise in relation to the first

17 issue, the alleged incident on 18 December, have been

18 fully addressed in the written submissions filed on

19 behalf of Mr Crompton and they are not repeated here.

20 Instead, we simply respond to the points taken up by the

21 POA in its written submissions and, in particular,

22 comment on the failure of the POA to answer any of the

23 points that we have made in writing.

24 Now, as to the latter point, the failure of the POA

25 or, as we would have it, the inability of the POA to

79
 1 respond to any of the points that we have made in

2 writing, it will be recalled that we say in summary as

3 follows.

4 First, John Seaward's account should not be accepted

5 by the Panel, as, firstly, if the incident had happened

6 as he described it, other Prison Officers would have

7 either heard the shout or shouts as they were made. You

8 recall his evidence that it was twice that an utterance

9 was made. On both occasions they were shouted.

10 Firstly, 2-IC INLA shouted down the wing, "They

11 think we have guns". Then he turned directly to Mogg

12 and Crompton and said, "You think we've got guns", or

13 Prison Officers would have been told about these shouts

14 in the immediate aftermath of the incident, not least of

15 whom would be the officer at the A and B grille about to

16 let 2-IC INLA back down the wings, or the officers in

17 the BCR, yet there is no evidence at all from any other

18 person, any other officer in the block, that any such

19 shout or shouts were heard.

20 Second, if the incident had happened as John Seaward

21 described it, the incident would have been the talk of

22 the block that day, 18 December, and in the days after

23 18 December.

24 The Inquiry Panel knows now the character and

25 attitude of many Prison Officers about issues of safety

80
 1 and security and their willingness to raise them at any

2 opportunity with management. Yet, if Mr Seaward is

3 correct, he heard the 2-IC of INLA shout that the

4 Governor I and Governor II of this prison thought that

5 INLA had got a gun down the wing and he didn't tell

6 a soul about it. Yet, there is no evidence that any

7 person other than Thompson, who claims to have been told

8 about it after the murder, heard about it. That is

9 quite literally extraordinary.

10 Third, not only would the incident have been the

11 talk of the block, a series of actions would inevitably

12 have followed from the utterances, principal amongst

13 which would have been a demand for a search of the

14 block, liaison with the POA demanding a search of the

15 block. Yet no such request was made.

16 Fourthly, Kenneth McCamley, the old-fashioned PO who

17 completed the entry in the PO/SO journal, would have

18 been told about what had occurred, because his entry in

19 the PO/SO journal, NP14-3535 -- was either made at the

20 time the Governors came into the block, in which case

21 surely he would have been told about the shouting

22 incident that happened after it, or it was made after he

23 returned from lunch or from some other business that

24 took him away from the block at lunchtime, in which case

25 surely he would have been told about the shouting

81
 1 incident upon his return.

2 It is common currency that the visits of

3 Governor I and Governor II together was unusual. He

4 would have been interested to know surely why the

5 Governor I and Governor II of the prison had been in his

6 block. Yet he states clearly and convincingly that he

7 was never told about the shouting incident.

8 He says, if he had been told about it, he would have

9 sent Seaward to the Security Department and in

10 a memorable phrase "so quickly that his feet wouldn't

11 have touched the ground". He would have phoned the

12 Security Department himself, saying, "Seaward is on his

13 way round to you".

14 THE CHAIRMAN: I think he only came to know about it,

15 though, after he came back. He must have, given the

16 point at which the entry is made in the journal.

17 MR BEER: The evidence on that, from him at least, was

18 equivocal, because you remember he was shown some other

19 entries in the PO/SO journal where he said, "Just

20 because it is separated out on the second page, doesn't

21 necessarily mean I wasn't told about it at the time.

22 I could have been drawing a special significance to the

23 visit of the Governor I and Governor II by marking it

24 out on a separate page." He said, "Equally, it could

25 have been I wasn't in the block when they visited.

82
 1 I was told about it when I came back to the block and

2 that's why it is not in the chronological sequence".

3 THE CHAIRMAN: He never saw them come in. He was told about

4 their visit?

5 MR BEER: Exactly.

6 Fifthly, Seaward made no mention of the incident in

7 a half sheet at the time, nor did he create any

8 paperwork at the time of the incident. More remarkably,

9 there is no mention of it in his witness statement to

10 the police completed in the days after Billy Wright's

11 murder, and at least one would have expected the

12 allegation to have emerged then, because on his account,

13 Governor I and Governor II had been told about guns in

14 the block a fortnight before -- less than a fortnight

15 before Billy Wright was murdered. He is murdered with

16 a gun and he makes no mention of it. No mention of it

17 when he gave evidence to the Coroner's Court. The first

18 time he mentions it is when he gives a witness statement

19 to the Inquiry a decade later.

20 The second point that we make is that

21 Brian Thompson's evidence not only does not corroborate

22 Mr Seaward's evidence; it positively undermines it.

23 First, he was in a room in H6 that was close enough

24 to the action between 2-IC and INLA and the Governors

25 that he, on his account, could see the body language of

83
 1 the Governors and see from that body language that the

2 meeting between them was heated, yet he didn't hear the

3 shout or shouts made by 2-IC INLA after the meeting.

4 Secondly, he, too, failed to make any mention of

5 this incident until he came to submit his Inquiry

6 witness statement, again a decade later, a decade after

7 the incident had occurred. Yet, as Mr Thompson has

8 shown in relation to other issues, he is not a man who

9 is slow in coming forwards. He is not slow to put pen

10 to paper. He is not slow to make complaints about any

11 matters that he wishes. Indeed, he compiled a long,

12 detailed statement with the assistance of his solicitor

13 setting out all of these concerns about what had gone on

14 in H6 and this was not one of them.

15 Thirdly, in relation to Mr Thompson, as with his

16 account of the meeting of 24 October 1997, his evidence

17 differed greatly as between his witness statement and

18 his oral evidence. In particular, in his witness

19 statement he claimed that Seaward had reported the shout

20 to him on the day that it had happened. When he came to

21 give evidence, he said this wasn't correct. Instead he

22 said in evidence that Seaward had only told him about

23 the shout after the murder. As we have submitted in

24 writing, such a great variation in account closely

25 undermines the reliability for that.

84
 1 The reason for that variation can only be known to

2 Mr Thompson and possibly Mr Seaward. One reason for it

3 may be that by the time he came to give his evidence,

4 Mr Thompson realised that he could not claim that

5 Seaward had told him about the shout on the date of the

6 incident, because even Mr Seaward did not make such

7 a claim.

8 Now, the striking point in relation to this litany

9 of issues is that none of them were addressed by

10 Mr O'Donoghue yesterday. They were not addressed in his

11 written submissions, despite emerging clearly from the

12 evidence and they were not answered orally yesterday.

13 Now, given the forensic talents and ingenuity of

14 Mr O'Donoghue --

15 THE CHAIRMAN: Don't overstate it.

16 MR BEER: In particular in his absence.

17 The reason why they were not addressed orally by him

18 yesterday must be because there is no answer to them.

19 THE CHAIRMAN: Could I ask you then from the standpoint of

20 your client, Mr Thompson, and I know that the consuming

21 interest is what, if anything, was said in his presence,

22 what are we to conclude, if anything, happened on that

23 day? Was there a visit by these two? Crompton,

24 I think, thinks there probably was.

25 MR BEER: Yes. He said, "I have checked my diary" -- you

85
 1 will recall he looked at his diary -- "so I can't say

2 I was somewhere else. There were other things on that

3 day but they were not really timed, so I can't say I was

4 out of the prison. That puts me in the prison".

5 He says, "I have seen the PO/SO journal. I have no

6 reason to think people would make that up. So in all

7 probability there was a visit. I can't recall after

8 12 years what it was about."

9 THE CHAIRMAN: And a joint visit?

10 MR BEER: Yes, because he doesn't draw a distinction between

11 saying, "There was a visit by me. I therefore accept

12 the PO/SO journal to that extent, but I don't accept

13 Mr Mogg was there".

14 THE CHAIRMAN: We can conclude that much then. Is that

15 right?

16 MR BEER: Our basic submission is that there is insufficient

17 evidence of a sufficient degree of reliability for you

18 to you be able to conclude for the dozen or so points

19 I have just made that there was a shout in Mr Crompton

20 and Mr Mogg's presence or shouts, because, remember, on

21 this issue Mr Seaward suggests, as I said already, that

22 there were two shouts. It is not a fact that emerged

23 from his witness statement. In evidence he said 2-IC

24 INLA shouted down the wing, "They think we've got

25 a gun", and then he turned to Crompton and Mogg and

86
 1 said, "You think we've got a gun".

2 THE CHAIRMAN: But your client doesn't accept there were

3 shouts, does he?

4 MR BEER: No.

5 THE CHAIRMAN: So why should we conclude that there were

6 shouts on the uncorroborated testimony of Mr Seaward?

7 MR BEER: As Mr Brangam would say: as ever, my Lord is

8 correct.

9 THE CHAIRMAN: You are not taking a leaf out of his book,

10 are you, surely?

11 MR BEER: I take them from wherever they are available.

12 I have gone five minutes over the time.

13 I understand you are going to take your luncheon at

14 12.45.

15 THE CHAIRMAN: Oh, were we?

16 MR BEER: I can continue.

17 THE CHAIRMAN: I know it does say that, but we are ahead of

18 ourselves, so if you want to continue, please do, until

19 1 o'clock and we can resume at 2 o'clock. Would you

20 prefer to do that?

21 MR BEER: I am in my Lord's hands.

22 Continuing, therefore, by contrast to the position

23 of Mr O'Donoghue, we do have answers to each of the

24 points that he makes. They are as follows. He makes

25 nine points.

87
 1 First, and this is paragraph 10.20.1 of his

2 submission, he says there is no doubt that such

3 a meeting took place. Well, that was accepted by

4 Mr Crompton, but it goes nowhere in establishing what

5 transpired after the meeting.

6 Second, paragraph 10.20.2, he says that, when making

7 his statement, Mr Seaward did not have the benefit of

8 having seen the PO/SO journal. That appears to be

9 correct, but, firstly, that relates to the fact of the

10 meeting taking place, which is admitted, and does not go

11 to the essential issue: namely, whether there was

12 a comment shouted or comments shouted after the meeting.

13 The PO/SO journal says nothing about that.

14 To that extent that the existence of the journal and

15 the absence of a record of the shout or shouts

16 undermines and does not support Seaward's account.

17 Secondly, as was observed by my Lord yesterday, the

18 request for the entry to be completed in the PO/SO

19 journal originated from Seaward. So the entry is not

20 corroboratory but self-serving.

21 Third, as to Mr O'Donoghue's third point in

22 paragraph 10.20.3, namely that Mr Seaward has no motive

23 to concoct or exaggerate his account and gave it in

24 a measured manner, the true position is he has no known

25 motive, and in any event, it is not positively asserted

88
 1 by us, or by anyone else, that he has concocted it.

2 What we simply say is there is insufficient evidence

3 for you to find that he is reliable. He may be mistaken

4 or confused about what had occurred, or has conflated

5 events.

6 Fourth, in paragraph 10.20.4 of Mr O'Donoghue's

7 submissions it is suggested that there are unusual

8 features in the conduct of the Governors, in that they

9 failed to check in with the BCR, that they had a heated

10 meeting and it was unusual for two Governors to have

11 a meeting with a prisoner.

12 As to the first point, that they failed to check in

13 with the BCR, this fails entirely to acknowledge the

14 line of questioning pursued by you, my Lord, and

15 Professor Coyle, with Mr McCamley, that in order to get

16 into the block the Governors would have to announce

17 their arrival to a whole series of personnel, including

18 the BCR to get access to the block. So a formal

19 announcement of arrival. In any event, it fails to give

20 account of the evidence that there would have been

21 a coded signal sent from the yard gates to the BCR, the

22 three taps on the radio, to announce the arrival of

23 Governor I.

24 As to the second point, it is correct it was unusual

25 to have a meeting of the Governors I and II at the same

89
 1 time with a prisoner, but not unheard of.

2 As to the third point, this relies on the

3 credibility of Mr Thompson: namely, that there was

4 a heated exchange, a heated meeting. In this respect,

5 as in others, Mr Thompson changed his evidence as to

6 what he could see and hear.

7 Fifth, Mr O'Donoghue asserts in paragraph 10.20.5

8 that Governor Crompton has no relevant recollection.

9 Yes, that's correct. He doesn't recall exactly what the

10 meeting was about. He does say the shout didn't happen

11 afterwards, but that doesn't assist Mr O'Donoghue.

12 Sixth, he suggests that Mr Seaward did mention the

13 matter to a colleague, Brian Thompson, a matter of

14 months later, albeit after the murder. I have already

15 made the point about how unlikely it is that, if the

16 shouts had occurred, that an officer would sit on it for

17 months and not tell anyone about it, but how more

18 unlikely they would both then sit on it, Seaward and

19 Thompson, for a decade, despite the completion of

20 an SCS, two witness statements and a statement to his

21 solicitor by Thompson, and a completion of a witness

22 statement to the police by Seaward and the giving of

23 evidence to a Coroner's Court by both of them in any of

24 those means.

25 Seventh, paragraph 10.20.7 Mr O'Donoghue says the

90
 1 explanation by Mr Seaward for not completing a half

2 sheet is "not irrational". He says it is not irrational

3 because the witness said, "Well, there was not much

4 point in completing a half sheet because I had the

5 Governors I and II there and, ultimately, if I completed

6 a half sheet, it would have ended up with the

7 Governors I and II already", and that's not

8 an irrational approach says Mr O'Donoghue.

9 This submission fails to acknowledge on his account,

10 Seaward's account, he told Kenneth McCamley about the

11 incident, and whatever his own thinking about the need

12 to complete a half sheet, whether irrational or not, one

13 thing is clear. If he had told Kenneth McCamley about

14 the incident, Kenneth McCamley would have made sure he

15 did complete a half sheet and marched him round to the

16 Security Department, phoning them in advance, saying,

17 "We are on our way".

18 So it is wrong to paint the picture that the

19 witnesses disagreed over the proper procedure to be

20 completed. It is not an issue over what protocol

21 dictated. On Mr Seaward's account, he went and told

22 Kenneth McCamley what had just transpired. If that

23 evidence is true, then it is plain as a pikestaff what

24 Mr McCamley would have done.

25 Eighth, Mr O'Donoghue suggests in paragraph 10.20.8

91
 1 that there may be a middle ground, in that the shout or

2 shouts were made, but were not heard by the Governors.

3 This perhaps olive branch is a possibility, but is

4 contrary to and inconsistent with the submissions that

5 the POA then go on to make in paragraphs 10.21 and

6 10.22: namely, that there should have been a block

7 search, and Mr Crompton should be criticised if he is

8 intentionally withholding information from the Inquiry.

9 Ninth, it is said in 10.20.9 that if there was

10 collusion, wouldn't there be greater similarities

11 between the evidence of Thompson and Seaward rather than

12 the divergences which there are? This is obviously

13 a familiar device of the advocate with which my Lord

14 will be familiar, but on analysis does not really

15 advance the POA's position greatly.

16 My Lord, would that be a convenient moment?

17 THE CHAIRMAN: It is a matter for you. Is it convenient?

18 MR BEER: Yes, it is.

19 THE CHAIRMAN: 2 o'clock.

20 (1.00 pm)

21 (The luncheon adjournment)

22 (2.00 pm)

23 THE CHAIRMAN: Mr Beer?

24 MR BEER: I am grateful, my Lord.

25 Can I deal with one point that has been drawn to my

92
 1 attention by my learned junior which I omitted to

2 mention this morning? Can we have up on the screen,

3 please, NP41-0159? This is the extract from the

4 McWilliams' -- yes, I notice Mr O'Donoghue's presence as

5 well. He has obviously heard there was some praise for

6 his forensic ingenuity and had to come to listen to see

7 if there was any more.

8 THE CHAIRMAN: I think the word went out.

9 MR BEER: NP41-0159 was an extract from the Newsnight

10 interview of Christopher McWilliams. You recall I was

11 making the point about the provision of the LVF visits

12 list to INLA, that the Wright family had relied on this

13 page to show that, from McWilliams' perspective at

14 least, he believed that the visits list had been so

15 provided. I made the point that on the face of this

16 page, the evidence is -- it is not evidence -- the

17 document is equivocal, because -- it's the first answer

18 at C -- he appears to suggest the visits list was so

19 provided. Then at the second answer at C, he says:

20 "No, we didn't see that Billy Wright --

21 I actually -- it didn't even come to our notice at that

22 particular time."

23 That was the point I made. I should also have

24 flicked on two further pages to page NP41-0161, please,

25 part of the same interview. Four paragraphs in, the

93
 1 interviewer says:

2 "Question: Okay. So I just want to clear up one

3 thing. Did you say that you didn't -- the INLA did not

4 get a list of LVF names for visits?

5 "Answer: Well, the people who was involved in the

6 operation hadn't even got access to the INLA of the LVF

7 list at that particular time."

8 Then this:

9 "If it has come into the wing, it's actually been

10 thrown on the snooker table or even thrown in among the

11 rest of the papers ..."

12 So the point is doubly good on the face of the

13 interview.

14 Reverting to where I was, I dealt with the first

15 part of the submissions in relation to Mr Crompton's

16 position: namely, in relation to the Seaward incident.

17 Turning to the other aspect of the criticism of

18 Kenneth Crompton mentioned in the submissions of the

19 parties, namely, his alleged contribution to effective

20 management in the 41/42 days, working days, before the

21 murder, the family rely on four matters in support of

22 this very general allegation.

23 First, they allege that he failed to acquaint

24 himself fully with the events and context of the LVF act

25 of concerted indiscipline. Mr Crompton said that he had

94
 1 spoken to Steve Davis about the circumstances of the LVF

2 riot and he told him what it, the riot, was about, its

3 causes and what occurred. He did not read Steve Davis'

4 report, because, firstly, it was completed before his

5 arrival, and that was elicited, in fact, in answer to

6 a question that you, my Lord, asked.

7 Secondly, it was addressed to the Governor I and

8 wasn't copied in to him. We looked at that in evidence,

9 how the markings on it showed it went straight to the

10 Governor I.

11 Secondly, reliance is placed on his alleged failure

12 to recognise the lack of a collator. We say this is

13 a harsh criticism indeed. He visited the Security

14 Department, he said, on a number of occasions, and he

15 saw there was somebody doing the job of collator. No

16 request or complaint had yet at that time been made

17 about the lack of a full-time collator. That was to

18 come in Steve Davis' report of 28 October 1997, when --

19 which we have looked at already, which report was sent

20 directly to Martin Mogg, and it was he, Martin Mogg, who

21 took no action in relation to it.

22 Third, it is alleged that he had apathy towards the

23 work and output of the Security Department generally,

24 and it is this passage in his evidence that is relied

25 on:

95
 1 "Question: You go on to say in your statement that

2 you don't think you ever looked at a file in the

3 Security Department.

4 "Answer: No, I don't think I ever had the need to

5 pick up a file in the Security Department.

6 "Question: You also say that you were unable to use

7 SASHA. Is that correct?

8 "Answer: Yes, I didn't have a SASHA terminal and

9 wasn't familiar with that system."

10 In relation to that, we say the criticism is

11 misplaced, with respect, because it is founded on

12 an assumption that, in order effectively to manage

13 a Security Department, it's necessary for a Governor II

14 to read and analyse all primary security information,

15 which on any analysis is not the role of a Governor II

16 to read and analyse the primary security information.

17 We say in that respect it's similar to the position,

18 for example, of a Governor in charge of catering, who,

19 in order effectively to perform that task, doesn't

20 himself or herself need to be able to double-bake

21 a souffle. What is needed is strategic oversight of the

22 position and that is exactly what Mr Crompton said that

23 he provided. He managed an expert in that role, namely

24 Steve Davis.

25 Fourthly, it is alleged that the apathy so-called by

96
 1 Mr Crompton is shown by the lack of a handover between

2 Mr Crompton and his predecessor. There was no

3 predecessor to have a handover with. It is rather

4 difficult to criticise him for failing to have

5 a handover with a person -- or a person conducting

6 a role that didn't exist.

7 For those reasons, we invite the Panel to reject the

8 criticism that is alleged.

9 Can I turn very briefly to the position of

10 Paul Davidson and Brian Loftus? I take these two

11 witnesses together as the Wright family deal with them

12 at CS19-0033. If we can have that on the screen,

13 please. Lines 19-28. This is in relation to the

14 alleged failure to follow up the report of the

15 non-functioning of the high-mast camera overlooking H6.

16 In relation to Paul Davidson, it is said by the

17 family he did not follow up his initial call to see if

18 the work to the camera had been done and that this is

19 unsatisfactory, but Mr Davidson gave clear evidence,

20 Day 88, page 149, line 24, to Day 88, page 150, line 5

21 that he reported the defect to DOE Construction

22 Services, the independent contractor. He told them that

23 the camera was not working, and then he went on

24 Christmas leave himself. He had no opportunity to

25 follow up the matter himself. He would expect in any

97
 1 event Construction Services to follow the matter up once

2 it had been referred to them. There is, in short, no

3 basis for criticism of Mr Davidson.

4 Brian Loftus. To the extent that one can divine

5 from the document proposed criticism of Brian Loftus, it

6 is surprising indeed. He wasn't the subject of any

7 criticism by the Wright family during his evidence, nor

8 was he served with a Salmon letter. He was an officer

9 working in the Emergency Control Room who came on duty

10 at the Association shift: namely, in the early evening.

11 The defect to the high-mast camera had already been

12 reported to Estate Management. See Day 59, page 92 and

13 NP14-0807. That was before he came on duty. He was

14 simply used by the Inquiry as a witness to comment on

15 the relevant entry in the PO's journal in the ECR.

16 The Panel will note from the last sentence of the

17 passage on display on the screen that this is said:

18 "It will be for the Panel to determine whether or

19 not there was anything sinister in relation to this

20 delay."

21 That's the delay in getting the high-mast camera

22 fixed. The Panel will have seen in the NIPS'

23 submissions, CS05-0062 and following, the exact

24 chronology in relation to the fixing of the high-mast

25 camera. Regrettably, we say this is one of those

98
 1 occasions, albeit rare in relation to clients

2 I represent, where the family seek to spice up their

3 submissions by the inclusion of the kind of sentence one

4 sees at the foot of the page there:

5 "It will be for the Panel to determine whether or

6 not there was anything sinister in relation to this

7 delay."

8 We say that that kind of sentence really isn't

9 worthy. It is tantamount to an admission there is no

10 evidence of deliberate wrongdoing. There is no evidence

11 of anything sinister, otherwise surely the evidence

12 would have been submitted. It would have been set out.

13 It would have been mentioned in some way, or, at the

14 very least, the inferences it is suggested ought to have

15 been drawn from such evidence would have been

16 identified, but there is no evidence and there are no

17 inferences. The position is clear and simple.

18 Can I turn then to the fifth and sixth witnesses

19 that I mentioned: namely, Maureen Johnson and

20 Richard Malloy? The criticisms of the Wright family

21 were as follows and I am quoting from CS19-0056,

22 line 19:

23 "Both Maureen Johnson and Richard Malloy should be

24 the subject of criticism for allowing the file

25 destruction of vital prisoner records to have taken

99
 1 place."

2 Maureen Johnson must therefore be the subject of

3 some criticism for her failure to follow the destruction

4 policy which, it is submitted, she would have been aware

5 of in the first place, and thereafter for not following

6 normal procedure in noting which files were being

7 destroyed.

8 Other implied criticisms in relation to this pair of

9 individuals include as to their understanding of the

10 Prison Service's file destruction policy and their

11 alleged failure to implement it.

12 Firstly, it is said that she, that's Johnson, should

13 have been aware of the destruction policy at the time.

14 That's CS19-0049, line 6.

15 Secondly, it is said that it is reasonable to assume

16 that Maureen Johnson had, in fact, been made aware of

17 the policy in question. CS19-0056 at line 17.

18 Thirdly, it is said that Richard Malloy knew there

19 was a policy in place at the time. CS19-0056, 9-11.

20 They are criticised to the "sustainability" of the

21 reasons given by Martin Mogg as recalled by

22 Maureen Johnson for directing that the files be

23 destroyed.

24 Fourthly, the family say that the reasons allegedly

25 given by Mr Mogg, the requirements of the Freedom of

100
 1 Information Act and the Data Protection Act, coupled

2 with the fact that information was on SASHA, do not

3 stack up. That's CS19-0047.

4 Fifthly, the family say that Mr Mogg would have been

5 aware of the destruction policy and the prospect of

6 a judicial investigation into the death of Billy Wright.

7 That's CS19-0049, 9-11.

8 As to the alleged failure to keep an audit of the

9 act of destruction of the papers, it is said, sixthly,

10 that Maureen Johnson followed normal procedures by

11 logging the transfer of Billy Wright's file to

12 Headquarters, yet she did not create any trail

13 whatsoever in relation to the mass destruction of

14 prisoners' security files from the Maze. That's

15 CS19-5547, line 30.

16 Lastly, as to the failure to speak to the Security

17 Governor, it is said neither Maureen Johnson nor

18 Richard Malloy were able to explain the failure to

19 inform the Security Governor about the destruction.

20 CS19-0047, line 8.

21 So that's the indictment, but the family's

22 submissions are silent in relation to all of the

23 significant issues which the Inquiry may have to decide.

24 They do not state, firstly, whether they accept that

25 Martin Mogg gave an instruction to Maureen Johnson and

101
 1 Richard Malloy to destroy the prisoner security files

2 from the Maze. The family's position is not set out at

3 all in relation to this most basic of questions.

4 Secondly, they do not state whether they accept that

5 Martin Mogg gave the reasons attributed to him by

6 Maureen Johnson. It is said that the reasons given by

7 Mr Mogg are not sustainable. They do not, however,

8 state what flows from this. Are they suggesting, for

9 example, that by reason of this the reasons were not, in

10 fact, given by Mr Mogg?

11 Thirdly, they do not state whether, if they accept

12 he did give the instruction, they consider it to be

13 a deliberate attempt by Martin Mogg to prevent relevant

14 evidence being considered by a future investigation into

15 the death of Billy Wright. Such a fundamental question

16 is left entirely unanswered in the family's submissions.

17 If, by contrast, they reject the suggestion that the

18 instruction came from Mr Mogg, then they are silent as

19 to the inference they say should be drawn as to why the

20 files were destroyed. Are they, for example, advancing

21 the extraordinary assertion that Maureen Johnson and

22 Richard Malloy were on an independent quest of their own

23 to prevent relevant evidence being heard by a future

24 Inquiry into the death of Billy Wright? It seems not.

25 Accordingly, the Wright family submissions are

102
 1 silent in relation to all of the significant questions

2 which the Panel may have to decide. This omission is

3 significant, both because Ms Johnson and Mr Malloy are

4 entitled to know, as it were, what case they have to

5 meet, but also because of what's said in paragraphs 13

6 and 14 of our written submission, which is CS17-0012 and

7 CS17-0013:

8 "Adopting a liberal interpretation of the terms of

9 reference the relevant issue for the Panel is to

10 determine whether the destruction of Maze security files

11 in 2002 was part of a deliberate attempt to prevent

12 documentation relevant to the death of Billy Wright

13 being considered by a future Inquiry into his death.

14 "14. Once it is established that neither

15 Maureen Johnson nor Richard Malloy were so engaged, then

16 any other acts or omissions either relating to the

17 destruction of security files in 2002, for example, by

18 not making a written record, or discussing the matter

19 with her line manager, cannot be said to have

20 facilitated the death of Billy Wright, and thus be

21 outside the Inquiry's terms of reference to make

22 criticisms on those matters."

23 Instead, regrettably, the family' submissions in

24 this respect resort to half-baked innuendo. An example

25 is CS19-0048, line 23, where it is stated:

103
 1 "It is also of importance that the timing of this

2 destruction took place after the Weston Park

3 agreement..."

4 The submissions are entirely silent as to the

5 inference they are inviting the Panel to draw from this

6 fact. Is it implied that Ms Johnson destroyed the files

7 because of the Weston Park agreement? Hopefully, it is

8 not so suggested, because she was never asked by anyone,

9 including counsel for the family, whether she was aware

10 of the terms of that agreement or whether she had any

11 other reason for thinking there would be an Inquiry into

12 the death of Billy Wright.

13 The reality is that the Wright family cannot invite

14 the Panel to find against Mrs Johnson or Mr Malloy in

15 relation to the fundamental issues, because, firstly,

16 the evidence does not support it, for the reasons given

17 in our written submissions.

18 Secondly, they chose not to cross-examine

19 Mrs Johnson at all.

20 Thirdly, it has not been suggested to Mrs Johnson or

21 to Mr Malloy by anyone, including the family, that they

22 were engaged in a deliberate attempt to destroy relevant

23 evidence with a view to preventing it being considered

24 by a future investigation.

25 As to the specific criticisms relied on by the

104
 1 family, these are, in essence, addressed in detail in

2 the written submissions. We ask the Panel to note the

3 following things.

4 (a). The direct evidence of Mr Malloy and

5 Mrs Johnson, neither of whom had their credibility

6 challenged, that the records were destroyed pursuant to

7 an instruction from Mr Mogg.

8 (b). The legal obligation on the part of

9 Ms Johnson and Mr Malloy to comply with that

10 instruction.

11 (c). The perfectly reasonable assumption on the

12 part of both individuals that the governing Governor was

13 conversant with prison disposal policy.

14 (d). The evidence that, given an instruction in

15 this rather ad hoc manner by Mr Mogg was rather in

16 accordance with Mr Mogg's informal style of management.

17 (e). The absence of any evidence that Mrs Johnson

18 was told by Mr Mogg to record the instruction.

19 (f). The evidence that there were two further

20 instances of document destruction in NIPS after this

21 event which did not involve Mrs Johnson and were not

22 recorded, demonstrating a general lack of awareness of

23 training and the necessity to record document

24 destruction.

25 We ask the Inquiry also to take note of the fact

105
 1 that it was Ms Johnson who volunteered the information

2 about the fact of the 2002 file destruction to this

3 Inquiry, thus demonstrating her honesty and integrity.

4 Can I now address a number of small points, a few

5 additional points arising from the submissions of the

6 family? First, the fact that no prior notice of

7 criticism has been served on Mr Malloy.

8 Mr Malloy in contrast to Ms Johnson, was

9 cross-examined by the family as part of the document

10 recovery hearings, but the criticism now put to him,

11 that he should not have participated in the destruction

12 of files, was not advanced during the course of that

13 cross-examination, nor was he challenged at all in

14 relation to his evidence that the instruction to destroy

15 the files was made by Mr Mogg. If the family considered

16 that he ought to have refused this instruction, it was

17 incumbent really to put that suggestion to him so he had

18 an opportunity to deal with it.

19 Mr Molloy was not singled out by Counsel to the

20 Inquiry as someone who might even potentially face

21 criticism. Accordingly, no written submissions have

22 been made on his behalf, although it is fair to say that

23 the points made on behalf of Maureen Johnson in the

24 written submissions of the CSO witnesses are, for the

25 most part, of application to him as well.

106
 1 Indeed, it might be said that those submissions

2 carry even greater force in relation to Mr Malloy's

3 case. If there is no basis for suggesting Ms Johnson

4 should have refused to carry out an instruction that she

5 was obliged in law to comply with, it is even more

6 untenable to suggest in the case of Mr Malloy, who was

7 a Principal Officer grade, that he should have done so.

8 Secondly, can I address the issue as to their

9 understanding of the Prison Service's file destruction

10 policy and their alleged failure to implement it?

11 It is first asserted in the family's submissions

12 that Ms Johnson ought to have been aware of the NIPS'

13 destruction policy. Later in the submissions, it is

14 suggested that she was, in fact, aware of it, but nobody

15 put either proposition to Ms Johnson in the course of

16 her evidence at all. She confirmed that she had no

17 knowledge of the policy. The sole basis for the family

18 alleging that she was aware of the policy is the

19 document at WS414-0014, which I don't ask to be put up

20 at the moment: namely, a letter written by Mr Bain on

21 12 September 2000 drawing attention of certain Governors

22 to the terms of the 1997 circular, but it is clear on

23 the face of this document that, first, Ms Johnson was

24 not a recipient of the letter; secondly, no evidence has

25 been adduced from the recipients that are named on the

107
 1 face of the letter as to whether they distributed it

2 further down the chain and, if so, to whom they

3 distributed it, and, if so, whether Ms Johnson was one

4 of the people to whom the letter and the circular were

5 then distributed; and, thirdly, Ms Johnson, therefore,

6 has not had an opportunity to comment on the document

7 save to say that she confirmed she had no knowledge of

8 the policy to which it related.

9 Accordingly, we say there is simply no basis upon

10 which this Panel can reasonably conclude if she was

11 aware of the contents of the letter or the policy to

12 which it related.

13 In relation to Mr Malloy, the family further assert

14 that "Mr Richard Malloy knew there was a policy in place

15 at the time". That's CS19-0056, line 11. This is

16 a repeat of an inaccurate representation of Mr Malloy's

17 evidence made by then Leading Counsel to the Inquiry in

18 his closing oral submissions at the end of the document

19 recovery hearing.

20 It is correct to say that at one stage in his

21 evidence he asserted he was aware of the Prison Service

22 policy on the destruction of prison files. That's

23 Day 4, 124, line 24, but he was not given the

24 opportunity until much later in his examination to set

25 out the extent of his understanding. When he was given

108
 1 that opportunity by Mr Batchelor, he said as follows.

2 He was asked the question:

3 "Question: Let us take it in two stages. You knew

4 that there was a destruction policy at the time you were

5 ordered to destroy these documents. Is that right?

6 "Answer: Yes, sir.

7 "Question: And you knew under that policy that you

8 were supposed to make a record of the destruction. Is

9 that not so?

10 "Answer: I do not know.

11 "Question: You did not know?

12 "Answer: I cannot recall exactly what the

13 destruction policy stated."

14 That's Day 4, 145, lines 5-10. Equally important

15 was the following later exchange between him and

16 Mr Batchelor at Day 4, 127, line 15 and following:

17 "Question: Did you know of the existence of

18 a circular issued in 1997 when Martin Mogg was Director

19 of Operations in the Prison Service prohibiting the

20 disposal or destruction of 'any prisoner file'? What do

21 you know about that?

22 "Answer: I do not recall that circular, sir."

23 And the following exchange:

24 "Question: Did you know that part of the disposal

25 policy of NIPS at that time was not to destroy any

109
 1 prisoner files until the Public Records Office of

2 Northern Ireland had had an opportunity to inspect them?

3 "Answer: No."

4 It is clear from these exchanges that, whilst

5 Mr Malloy may have been aware there was a policy on

6 disposal, he was not aware of the terms of the policy on

7 disposal.

8 Third, can I turn to the "sustainability" of the

9 reasons given by Mr Mogg as recalled by Ms Johnson for

10 directing that the files be destroyed. It is important

11 to bear in mind Maureen Johnson's evidence on this

12 point. She said:

13 "I remember him asking why we still had these

14 cabinets as the FOI and the DPA had come in. He gave

15 an instruction for the contents of the cabinets to be

16 destroyed because the same information that was

17 contained within these files would be on the SASHA

18 computer system."

19 It is not for Mrs Johnson, still less Mr Malloy, to

20 defend Mr Mogg's reliance on these two acts as the

21 reason for disposing of the records. Her position is,

22 and has always been, that she has a clear memory of him

23 mentioning them as the reason, but she and Mr Malloy

24 never had any training in data protection or freedom of

25 information issues. They were simply obeying an order

110
 1 which they were obliged at law to comply with.

2 There was nothing surprising on the face of the

3 instruction about the instruction. It related to former

4 prisoners of a prison which had now closed down and

5 whose details were substantially or wholly on the SASHA.

6 In relation to this the following is of note. There

7 was nothing surprising about mentioning the DPA or the

8 FOI in the same breath. Indeed, the relevant equivalent

9 instruction from the Prison Service in England and Wales

10 on this subject reads "the Data Protection Act and the

11 Freedom of Information Act" and addresses both Acts in

12 one order at the same time.

13 There is nothing surprising about a perception that

14 the Data Protection Act prevented the holding of

15 information for longer than necessary. Indeed, that's

16 exactly what the fifth principle of the Data Protection

17 principles provides.

18 Turning to the failure, alleged failure to speak to

19 the Security Governor, it is said by the family that

20 neither Maureen Johnson, nor Richard Malloy, were able

21 to explain their alleged failure to inform the Security

22 Governor about the destruction. This is the last

23 particular of the indictment, CS19-0048, line 4. In

24 fact, both gave a clear explanation for this.

25 Maureen Johnson stated in terms she did not think

111
 1 the Security Governor was there when the instruction was

2 given. Day 4, page 78, line 3. Mr Malloy in reply to

3 questions asked by the family ironically stated to the

4 best of his recollection he was not on duty that day,

5 Day 4, page 139, line 24.

6 In the circumstances, for the reasons given in the

7 written submissions and those supplementary oral

8 submissions I just made, we submit that it would be

9 unfair to criticise either of the witnesses for their

10 actions and in any event there is an insufficient

11 evidential platform upon which to do so.

12 Can I turn then to submissions on behalf of

13 William Gribben? Both the POA and David Wright have,

14 through their representatives, made criticisms of the

15 health and safety regime at the Maze with particular

16 reference to the absence of risk assessments.

17 Although neither party has issued a notice of

18 intended criticism of any of our clients in relation to

19 those issues, one of those clients, William Gribben, is

20 mentioned fleetingly in the context of health and safety

21 issues and risk assessments and it is for that reason it

22 is necessary to make a few brief observations about his

23 involvement and responsibility in respect of those

24 issues.

25 It is to be noted in this regard exactly what the

112
 1 POA say about this. Can we have on the screen

2 CS16-0004? The last three lines of paragraph 3.1,

3 please starting with "with". They say:

4 "With one notable exception, it is not the intention

5 of the POA to seek to criticise unnecessarily those who

6 plainly had a difficult role to perform in the

7 management of the prison."

8 The exception is health and safety. We agree with

9 the POA exactly what they say: namely, as the POA

10 accept, this is criticism is an unnecessary one. The

11 submissions of the POA in this regard are in breach of

12 the basic rules of fairness established by the Inquiry.

13 That's because in part they are based on submissions

14 that were not put to the relevant witnesses and proceed

15 on a misunderstanding of the legal framework, and aren't

16 supported by the evidence.

17 We say it is correct that this topic is an example

18 of something that would require further evidence in

19 order to be dealt with properly by the Panel. There is

20 a number of reasons why this situation has come about.

21 First, although it is a major theme of the written

22 submissions of the POA, and in part the family, health

23 and safety and risk assessment, it does not feature at

24 all in the Inquiry's list of issues.

25 Secondly, it does not feature at all in any Salmon

113
 1 letter served on any relevant witness. No Salmon letter

2 was served from the POA on this issue in relation to any

3 of our witnesses, including Mr Gribben. This was

4 an issue that NIPS drew the Panel's attention to

5 specifically, Day 118, page 119, line 7, and since then,

6 no Salmon letter from the POA has been served, nor

7 indeed a Salmon letter from the family on this issue.

8 Thirdly, no health and safety expert has been

9 called.

10 Fourth, Sir Richard Tilt was not asked to deal with

11 issues of health and safety.

12 Fifth, creditably NIPS identified one critical

13 witness, namely Mr Lavery, as being relevant to health

14 and safety issues and risk assessment and said to the

15 Inquiry in open session if this was going to become

16 an issue, then at the very least he should be called.

17 He was the NIO's health and safety adviser, has a number

18 of qualifications and is a member of a number of

19 professional bodies that made him very well suited to

20 act as a health and safety adviser, and yet he was not

21 called to give evidence.

22 Now, on behalf of Mr Gribben, we stress that we

23 don't say that the Panel cannot look at health and

24 safety issues, but we do submit it is not necessary to

25 do so, and it should not do so to the extent of not

114
 1 reaching conclusions which are adverse to Mr Gribben on

2 this issue without hearing all the relevant evidence.

3 The reason quite simply why it is not necessary to

4 do so is that, as NIPS has rightly submitted, and we

5 have allied ourselves with this submission, the terms of

6 reference are not to be interpreted in a technical,

7 legal sense, in that "wrongful" is not to be equated

8 with a breach of the common law or a statutory duty.

9 It is open to the Inquiry to consider the

10 reasonableness of the steps that were taken to protect

11 Billy Wright without engaging on a fine analysis of

12 health and safety legislation and precisely what the

13 legislation required or didn't require. The Inquiry

14 doesn't need to have resource to the health and safety

15 legislation in order to make the findings it needs to

16 make in order to discharge its obligations under the

17 terms of reference.

18 However, because the issue is raised, I'm going to

19 briefly address what we would say if there was

20 an opportunity for me to explore it. This does not

21 purport to be a definitive legal view on the extent of

22 the application of health and safety legislation to

23 prisons and prisoners between 1993 and 1997 in

24 Northern Ireland. It's a complex issue and is not one

25 that's suitable for determination, not necessary for

115
 1 determination by the Inquiry, but the POA's proposition

2 that the health and safety legislation does apply, in

3 particular the 1992 regulations, for the protection of

4 prisoners as well as employees is, on the face of it,

5 a controversial one, and contrary to some authority.

6 See Pullen v Prison Commissioners 1957, 1 Weekly Law

7 Reports, 1186.

8 More broadly, the leading textbook on prison law,

9 "Owen on Prison Law", states at paragraph 5.33 that

10 health and safety legislation is generally inapplicable

11 to prison and prisoners.

12 More importantly, if we look at article 3 itself of

13 the 1992 regulations, that's RM92-0002, thank you, and

14 highlight 3, risk assessments, insofar as the POA make

15 criticisms for not carrying out risk assessments, the

16 only provision they rely on is article 3 of the

17 Management and Health and Safety At Work (Northern

18 Ireland) Regulations 1992, and that's what I have up on

19 the screen, but the important feature of this article --

20 and I am saying this only because it is necessary to

21 descend into the legal technicalities of it -- is this

22 is not a free-standing obligation to assess all risks in

23 the abstract. The purpose of article 3 is to identify

24 measures that are required to comply with the relevant

25 statutory provisions.

116
 1 One can see that from the terms of paragraph 3

2 itself:

3 "Every employer shall make a suitable and sufficient

4 assessment of ..."

5 Then (a) and (b). Then importantly comes the

6 qualification:

7 "For the purpose of identifying the measures he

8 needs to take to comply with the requirements and

9 prohibitions imposed upon him by or under the relevant

10 statutory provisions."

11 It's not a free-standing obligation to assess all

12 risks. It is only to the extent to which it is

13 necessary to comply with the requirements and

14 prohibitions imposed on him by or under the relevant

15 statutory provisions. There is simply no analysis in

16 the evidence, or in Mr O'Donoghue's submissions, of what

17 the relevant statutory provisions are, looking at the

18 last three words of article 3(1) and whether they were

19 complied with.

20 That might mean, for example, looking at the

21 Provision and Use of Working Equipment Regulations

22 (Northern Ireland) 1993, a relevant statutory provision.

23 It might mean looking at the Workplace Health and Safety

24 and Welfare Regulations (Northern Ireland) 1993,

25 a relevant statutory provision, and to see the extent to

117
 1 which those relevant statutory provisions imposed

2 a requirement or prohibition and to see whether a risk

3 assessment was necessary in order to comply with that

4 relevant statutory provision.

5 But it is difficult to see that much of that

6 legislation has any direct relevance for the purposes of

7 this Inquiry. Here we are concerned not so much with

8 the risks that flow from health and safety in terms of

9 the design of workplace accidents, but with questions of

10 control and security.

11 As the Panel knows, a serious question has arisen in

12 the Inquiry as to the extent to which it is informative

13 to compare questions of control and security in the

14 unique environment of the Maze with control and security

15 issues in other high security provisions in other parts

16 of the UK, but if the Panel was going to consider health

17 and safety issues in the Northern Ireland context, it

18 may be relevant to compare the approach of NIPS to

19 health and safety legislation with that of the

20 Prison Service in England and Wales, because there is no

21 relevant difference between the legislation in this

22 respect. The legislation is identical. That simply has

23 not been explored in evidence. On the basis of

24 published sources that we have had resource to, it is

25 our submission that in health and safety in the 1990s it

118
 1 appears that risk assessments were not undertaken in

2 relation to the location of prisoners who were

3 particularly at risk, and the process for carrying out

4 such risk assessments was first formally implemented in

5 2003 by Prison Service instruction PSI26/02, 2002, which

6 amended the prison order 0550 which introduced a formal

7 system of risk assessment.

8 Now the POA's ultimate submission at paragraph 3 of

9 his written submissions is that if a risk assessment had

10 been completed, Billy Wright's death would have been

11 avoided, but no justification for that submission is

12 given. In particular, it is not shown what different

13 accommodation arrangements would have been reached if

14 a risk assessment had been completed, ie a formal risk

15 assessment on their terms under the 1992 regulations.

16 In the submissions of Mr Wright the following

17 specific allegations are made in relation to Mr Gribben.

18 First, in relation to the LVF act of concerted

19 indiscipline on 14 August 1997, it is said:

20 "The fact that officers were injured and fires

21 started further illustrates the utterly reckless

22 disregard for the health and safety of staff manifest in

23 the decision to co-locate two so violently opposed

24 factions. The totally ineffective assessment of risk

25 combined with the scandalous appointment of

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 1 William Gribben, a man completely unqualified to perform

2 the role as health and safety officer, almost guaranteed

3 that staff would be exposed to avoidable risks and

4 injuries."

5 In relation to management and health and safety,

6 more generally it is said by the family -- and the

7 reference for your note is CS19-0092 -- first, prison

8 management demonstrated a complete contempt for the

9 importance of health and safety by permitting the

10 appointment of William Gribben.

11 Secondly, William Gribben has confirmed himself to

12 have been totally without qualification and experience

13 in the area of health and safety, and, if that was not

14 damning enough, estimated that less than 10 per cent of

15 your time was spent on addressing this area of

16 responsibility.

17 Third, William Gribben was unable to confirm whether

18 the policy document for which he had responsibility

19 contained a requirement for risk assessments to be

20 carried out:

21 "The mere existence of a health and safety policy is

22 far from a guarantee of its effective implementation."

23 Fourth, with William Gribben at the helm of health

24 and safety, there could be little prospect of other

25 personnel further down the chain of command being

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 1 instilled with the kind of attitude essential to

2 recognising and managing risk.

3 Fifth, William Gribben had a role in financial

4 governance at the Maze creating an intrinsic conflict of

5 interest with his responsibility for health and safety

6 and creating an automatic inhibition on Gribben's

7 management of health and safety issues. Gribben has

8 conceded that very point in respect of co-location, it

9 is said.

10 Now, stripped of the soundbite nature of those

11 submissions and the rather emotional manner in which

12 they are put forward, I think they distil into the

13 following issues.

14 First, whether William Gribben had adequate

15 qualifications to perform the role of health and safety

16 officer.

17 Second, whether William Gribben had adequate

18 experience to perform the role of a health and safety

19 officer.

20 Third, whether William Gribben had adequate time to

21 perform his health and safety duties.

22 Fourth, whether William Gribben was aware of the

23 contents of the health and safety policy document.

24 Fifth, whether William Gribben had a conflict of

25 interest between his role in relation to "financial

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 1 governance" and his role in respect of health and

2 safety.

3 Sixth, whether William Gribben was responsible for

4 an inadequate risk assessment following the LVF riot on

5 13 August 1997.

6 The POA make the following assertions in relation to

7 William Gribben:

8 First, that his evidence demonstrates that the

9 structure and content of risk assessments was never

10 truly understood by NIPS.

11 Second, that it is apparent from William Gribben's

12 evidence that generic risk assessments were carried out

13 taking sections of the prison on a monthly basis.

14 Third, there is a strong perception that the content

15 of risk assessment was cost rather than risk-driven.

16 They appear to link this to the dual roles fulfilled by

17 William Gribben as Head of Financial Services and Head

18 of Health and Safety.

19 Before turning to address those issues, it should be

20 acknowledged that Mr Gribben was never the subject of

21 any notice of intended criticism by any party. It is

22 also noteworthy that Counsel to the Inquiry did not

23 suggest, quite properly, that his evidence gave rise to

24 issues which could possibly result in the Inquiry

25 levelling a single criticism at him. Nowhere in

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 1 Mr Stewart's 190 questions is the possibility of such

2 criticism even contemplated. Indeed, no party, in

3 questioning Mr Gribben, suggested that he had, in

4 carrying out his duties, in any way facilitated the

5 death of Billy Wright in any way.

6 Now, it is suggested that the absence of such

7 identified criticism was justified and remains justified

8 for the following reasons.

9 Firstly, he had, in 1982, worked for 21 months in

10 the newly created role of health and safety adviser at

11 NIPS Headquarters where his role was to process and

12 evaluate health and safety claims relating to staff

13 accidents and to identify whether any remedial action

14 could be taken to prevent recurrence.

15 That's paragraphs 2, 4 and 5 of his witness

16 statement, WS234-0001 to WS234-0002. The suggestion he

17 had no experience of health and safety is therefore

18 incorrect.

19 Secondly, it is correct he had no formal

20 qualifications, but there has been no expert evidence to

21 show it was routine at that time for all health and

22 safety staff to have formal qualifications within NIPS

23 or, indeed, elsewhere in the United Kingdom.

24 Thirdly, William Gribben confirmed that he sought

25 the expertise of those involved in conducting risk

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 1 assessments when he took up his post. Day 158,

2 page 162, lines 15-20.

3 Fourthly, Richard Lavery, the NIO health and safety

4 adviser, had a considerable number of qualifications.

5 In paragraphs 5 and 9 of his witness statement at

6 WS360-0002, he devoted about 70% of his time to prisons'

7 issues -- see paragraph 14 of his witness statement,

8 WS360-0004 -- and visited prisons two to three times

9 each week. See paragraph 17 of his witness statement,

10 WS360-0005.

11 He attended monthly health and safety meetings at

12 Maze as an adviser and would note anything which

13 required follow up such as risk assessments. See

14 paragraph 22 of his witness statement, WS360-0006. He

15 also received copies of all health and safety risk

16 assessments. See paragraph 36 of his witness statement,

17 WS360-0010.

18 So the health and safety officer had the benefit of

19 close and regular contact with a fully qualified health

20 and safety adviser who was fully apprised of all health

21 and safety issues at Maze and who scrutinised the risk

22 assessments which were being carried out.

23 It would have been entirely reasonable and logical

24 for the health and safety officer at the Maze to rely on

25 Richard Lavery's expertise, qualifications and guidance,

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 1 and, in particular, to have relied upon him to inform

2 him if the approach being taken to health and safety

3 risk assessments fell short of acceptable standards.

4 It is highly significant, therefore, that

5 Richard Lavery's statement expresses no concerns about

6 the manner in which health and safety issues were being

7 addressed by the Maze staff or by Mr Gribben in

8 particular. He was, after all, best placed to give

9 expert evidence. He was also the best placed expert to

10 give evidence to the Inquiry. No challenge to his

11 evidence has materialised, nor has it been possible by

12 reason of the Inquiry's decision not to call him.

13 One can see from the submissions I have made already

14 the extent to which the evidence of Mr Lavery is of

15 critical relevance, central relevance.

16 It must be recognised in Mr Gribben's case also that

17 from 1 April 1997 the role of health and safety officer

18 was performed by Valerie Hayes. See paragraph 3 of her

19 witness statement at WS355-0001. Valerie Hayes

20 underwent at least four days of training on health and

21 safety issues within the first year of taking up her

22 post. See paragraph 6 of her witness statement. She

23 was able to devote a considerably greater amount of her

24 time to health and safety issues than had been possible

25 by Mr Gribben, estimated at 65% to 70% of her time by

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 1 Mr Gribben, Day 59, page 46, lines 15-19, and 50% by

2 Valerie Hayes. See paragraph 10 of her witness

3 statement, WS355-0003.

4 So in the relevant period from April 1997 until

5 Billy Wright's death William Gribben was not the health

6 and safety officer. So he was not the health and safety

7 officer when Billy Wright was transferred to the Maze,

8 nor when McWilliams and Kenneway were transferred to the

9 Maze, nor when the decision was taken to co-locate these

10 factions, nor at the time of the LVF riot, nor when the

11 LVF were returned to H6 in October 1997, nor at the time

12 of Billy Wright's murder.

13 At paragraph 6.2 of the POA's submissions it

14 acknowledges that there is evidence that monthly health

15 and safety assessments were being carried out. It is

16 clear from the witness statement of Valerie Hayes that

17 monthly health and safety audits and risk assessments

18 were carried out. See paragraphs 31 and 41 of her

19 witness statement, WS355-0008 to WS355-0011.

20 It is clear from the evidence of Mr Gribben that

21 risk assessments were being carried out. Day 58,

22 page 138, at line 14 and following, and it is clear from

23 the evidence of Richard Lavery that risk assessments

24 were carried out. See paragraph 34 of his witness

25 statement, WS360-0009.

126
 1 The fact that copies of these risk assessments have

2 not been recovered after such a long period cannot

3 constitute against that evidence any evidence to suggest

4 that all of the witnesses were wrong in asserting that

5 they were indeed being carried out. There can be no

6 suggestion that the issue of health and safety

7 assessments carried out by the health and safety officer

8 had any bearing at all on the death of Billy Wright.

9 Any suggestion to the contrary overlooks the clear

10 evidence of the division of responsibility between the

11 health and safety role and issues which were more

12 properly dealt with by the Security Department.

13 Examples, and they are only examples, of such

14 evidence are as follows: firstly, the witness statement

15 of Mr Gribben confirming that if health and safety

16 issues overlapped with security issues, they would be

17 the responsibility of the Security Department.

18 Paragraph 56 of his witness statement at WS234-0011.

19 This was an obviously correct approach to such

20 issues, particularly when it is recognised that

21 William Gribben and his successor, Valerie Hayes, were

22 civil servants and did not have any operational

23 experience of prisons. Any issue which had a security

24 aspect to it was therefore clearly not a matter that

25 could or should be addressed by the health and safety

127
 1 officers alone or in primary form.

2 The witness statement of Richard Lavery confirms

3 that the location of prisoners was not a health and

4 safety matter. See paragraph 24 of his witness

5 statement at WS360-0007. Nor was the co-location of

6 INLA and LVF in the same block. See paragraph 37 of his

7 witness statement, WS360-0010.

8 The witness statement of Mr Lavery confirms that

9 access by prisoners to the roofs was a security issue

10 and not a health and safety issue. See paragraph 25 of

11 his witness statement, WS360-0007. The demarcation

12 between health and safety issues and security issues is

13 well illustrated by the example at paragraph 31 of his

14 witness statement, which confirms that safe access to

15 roofs by staff would be a health and safety issue,

16 whereas unauthorised access to roofs by prisoners was

17 a security issue.

18 Fourthly, Mr Lavery confirms the staffing of towers

19 was not a health and safety issue. See paragraph 26 of

20 his witness statement. Similarly, the witness statement

21 of Mr Lavery confirms the vulnerability of staff on the

22 wing was a security issue. See paragraph 29 of his

23 witness statement. The Inquiry has heard an abundance

24 of evidence that the Security Department and management

25 of Maze generally were constantly wrestling with issues

128
 1 such as roof access, fences and the like, and it was

2 William Gribben's evidence that the Security Department

3 were assessing the risks from a security perspective "on

4 a daily basis". Day 59, page 42, lines 20-25.

5 Mr Gribben clearly did not have any conflict of

6 interest between his role as Head of Financial Services

7 and his duties as a health and safety officer, first

8 because at all relevant times he had ceased to be the

9 health and safety officer, and, secondly, because there

10 is no evidence whatsoever to support the assertion that

11 is made to that effect in the Wright family written

12 submissions.

13 The assertion in the family's submissions suggesting

14 that William Gribben had conceded there was an intrinsic

15 conflict which inhibited his responsibilities on health

16 and safety issues and in particular in relation to the

17 co-location in H6 is a misrepresentation of Mr Gribben's

18 evidence. All he said is that he believed it made

19 economical sense to house the two factions in the block.

20 He did not say he had made the decision to co-locate,

21 nor did he say that he took any decision in relation to

22 any aspect of finance relating to that decision, or that

23 finance played a part in the decision.

24 The Inquiry has not had brought to its attention

25 a single decision in respect of health and safety

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 1 matters which was taken by Mr Gribben and which was in

2 any way restricted by any financial constraint.

3 Furthermore, Ms Hayes has confirmed that she could not

4 recall any occasion when she wanted some action to be

5 taken but was met with a refusal on the ground of

6 expenditure.

7 More importantly, the assertion made by the Wright

8 family ignores the evidence which Mr Gribben gave in

9 a series of questions in answer to Bishop Oliver between

10 Day 59, page 57, at line 24, and page 62, line 9:

11 namely, firstly, he monitored shadow budgets on behalf

12 of Headquarters. Page 58, lines 20-22.

13 Second, he was not involved in negotiating the

14 budget for capital spend. Page 58, lines 22-24.

15 Third, he did not take any decisions in relation to

16 such expenditure, page 59, lines 2-9.

17 Fourthly, if he identified remedial action that was

18 required in respect of health and safety issue, it was

19 not up to him to decide whether or not money should be

20 spent. Page 59, lines 10-14.

21 William Gribben was asked in his evidence whether he

22 could recall whether a policy document which had been

23 created in 1994, when he took up his post as health and

24 safety officer, contained a requirement for risk

25 assessments to be carried out. He confirmed he had not

130
 1 been shown that document at any time for the purpose of

2 preparing his evidence. He stated he was unsure whether

3 such a requirement was contained in the policy document,

4 but it is hardly surprising that Mr Gribben will be

5 unable to recall the contents of such a document after

6 such a lapse of time, 14 years. Indeed, no evidence has

7 been put before the Inquiry showing whether a policy

8 document issued at some time before 1994 did or did not

9 contain such a requirement.

10 As I've said already, Mr Gribben was not the health

11 and safety officer at the time of or subsequent to the

12 LVF riot. As already noted, he had ceased to fulfil

13 that function on 1st April 1997. Furthermore, the

14 issues which gave rise to that incident, prisoners

15 breaching the fences and accessing the roof, were of an

16 operational nature and fell outside the ambit of the

17 health and safety officer. He confirmed that the issues

18 of staff safety which arose from that riot were

19 addressed at a management level and management meetings

20 and resulted in the purchase of additional smoke hoods

21 and PPV units. That's Day 59, page 27, lines 21-30.

22 In conclusion, to make submissions attacking

23 reputation of any professional person, those that make

24 the allegations at the very least should have a cogent

25 evidential basis for doing so. It is wrong to attack

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 1 Mr Gribben in the manner which has occurred in this case

2 in the absence of evidence to show he took any decision

3 which did not conform to the requirements of his

4 employer in relation to health and safety issues,

5 particularly since it is clear that an expert in health

6 and safety matters oversaw the risk assessments carried

7 out at Maze. There is no evidence that his admitted

8 lack of formal qualifications or recent experience of

9 health and safety led to the inadequate performance of

10 his duties, particularly given the health and safety

11 output was at all times monitored by an NIO expert who

12 was able to provide any necessary advice and expertise.

13 The family have not attempted to identify a single

14 decision taken by Mr Gribben which impacted directly or

15 indirectly on the death of Mr Wright. In any event, all

16 of the issues which potentially impacted on the death of

17 Billy Wright, roof access, fences, searching, were

18 matters which were not within the remit of the health

19 and safety officer.

20 Furthermore, as I have said already, he was not the

21 health and safety officer between the highly relevant

22 period between April to December 1997.

23 If those conclusions are accepted, then it is

24 unnecessary to consider whether or not Mr Gribben

25 performed his duties satisfactorily.

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 1 Ms Hayes was the health and safety officer during

2 that relevant period. She was able to devote

3 a significant amount of her time to health and safety

4 issues. The Inquiry has not found it necessary to call

5 Valerie Hayes to give evidence about the risk

6 assessments which were carried out by her during the

7 period which is relevant to this Inquiry. So we are in

8 the situation that the person who was in post at the

9 largely irrelevant period, it is proposed to criticise

10 him against the background of no relevant questions in

11 this respect being asked, no Salmon letter being served

12 on him, but not to call the person who monitored him and

13 not to call Ms Hayes.

14 In those circumstances, we respectfully submit that

15 the Inquiry ought not to criticise in any way suggested

16 the evidence of Mr Gribben.

17 My Lord, I have reached the end of the oral

18 submissions on behalf of those nine witnesses in respect

19 of which it was necessary to make supplemental or oral

20 submissions for the first time. Unless I can assist the

21 Panel further in relation to questions the Panel has,

22 those are the submissions I make on behalf of the CSO

23 witnesses.

24 THE CHAIRMAN: There were nine, were there?

25 MR BEER: Yes.

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 1 THE CHAIRMAN: Seamus McNeill, Brian Barlow.

2 MR BEER: I will just go back to the list. Seamus McNeill,

3 Brian Barlow, Jacqueline Townsend, Kenneth Crompton,

4 Maureen Johnson, Richard Malloy, William Gribben,

5 Paul Davidson, Brian Loftus. I dealt with two lots at

6 the same time. Davidson and Loftus together. That was

7 such a tiny part of it, it may have escaped attention.

8 THE CHAIRMAN: No, it didn't. I hadn't underlined it, you

9 see, so I didn't see it. Thank you very much.

10 Do you want to ask anything?

11 PROFESSOR COYLE: Could I ask two points of clarification on

12 your submission. One going back to Seamus McNeill and

13 the petition from Billy Wright.

14 MR BEER: Yes.

15 PROFESSOR COYLE: It might be helpful to look at the

16 petition, which is NP21-0361. That is the front page,

17 and we see that it passed through Governor Davis. Then

18 the next page, NP21-0362, is Governor Davis' comments.

19 MR BEER: Yes.

20 PROFESSOR COYLE: Which are of themselves quite interesting.

21 Then the third page, NP21-0363, is Billy Wright's note:

22 "Having been assured of my safety ..."

23 Which you covered at quite some length. You may not

24 know the answer to this, but I assume the petition form

25 has a fourth page, which we don't have here, which would

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 1 be the response coming from NIPS Headquarters. I will

2 find out later, but presumably we also have that on

3 record.

4 You spent some considerable time dealing with

5 whether your client, Seamus McNeill, had or had not

6 given a guarantee. My question perhaps is more for TSOL

7 than for you. In agreeing to the transfer, might the

8 issue be that in agreeing to this request there was

9 an acknowledgment of what Billy Wright had written there

10 on the screen in front of us, that at least Billy Wright

11 had an understanding that he had been given a guarantee.

12 MR BEER: I don't think that can work, for two reasons.

13 Firstly, the decisions to transfer were made before the

14 petition was signed. So it can have had no causative

15 effect in that regard.

16 Secondly, you will recall the evidence of Mr McNeill

17 that this was a form-filling exercise that had no impact

18 on the decision-making. The decision had already been

19 made and for administrative purposes a petition making

20 the request had to be submitted, that when the petition

21 came into the Maghaberry Desk at NIPS Headquarters, this

22 never found its way up to him and, therefore, never

23 found its way up to anyone further than the

24 decision-making chain.

25 So I think there is no evidence at all that any

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 1 relevant person at all in the decision-making chain ever

2 saw the petition.

3 PROFESSOR COYLE: I understand that, but I am just wondering

4 whether we need to consider, for purposes of completion,

5 whether, given that Billy Wright did write this, it

6 perhaps should have been pointed out to him that he had

7 not been given such a guarantee.

8 MR BEER: Yes. You recall Mr McNeill's evidence on that,

9 namely, if he had been shown it, he have would have said

10 immediately, "No, he needs to be disabused of this. He

11 is either doing it for mischievous reasons in which case

12 there needs to be a formal written reply or he has

13 misunderstood", because Mr McNeill acknowledged there

14 was some discussion about security of LVF prisoners and

15 their visitors on visits. So one can see how somebody

16 might have elevated that, whether out of a sense of

17 mischief or otherwise, to, "I have been given

18 a guarantee of my safety".

19 PROFESSOR COYLE: My second clarification is about

20 Mr Crompton and Mr Mogg's visit to H6 on 18 December.

21 MR BEER: Yes.

22 PROFESSOR COYLE: We have had evidence from two officers

23 that there was some form of heated discussion inside the

24 room and then Mr Thompson alleges that he could see from

25 the body language of the Governors that there had been

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 1 a heated discussion.

2 Now, leaving aside this issue of whether or not an

3 INLA prisoner said anything or not, do I understand

4 Mr Crompton's position to be he cannot remember going to

5 that meeting, he accepts he may have done and indeed on

6 the basis of the entry in the PO's journal he accepts he

7 did go to that meeting?

8 MR BEER: Yes.

9 PROFESSOR COYLE: Is it further his case, his position, that

10 he cannot remember what was not said and equally he

11 cannot remember what was said at that meeting?

12 MR BEER: Yes, yes. That's absolutely so.

13 PROFESSOR COYLE: Thank you.

14 THE CHAIRMAN: Thank you very much, Mr Beer.

15 MR BEER: I am grateful.

16 THE CHAIRMAN: Thank you very much indeed. Well, that

17 concludes the submissions for today. Mr Johnson, are

18 you up for tomorrow?

19 MR JOHNSON: Yes.

20 THE CHAIRMAN: 10 o'clock.

21 MR JOHNSON: Yes.

22 THE CHAIRMAN: Very well. Tomorrow at 10 o'clock.

23 (3.05 pm)

24 (The hearing adjourned until 10 o'clock tomorrow morning)

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