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Case Management Hearing

Hearing: 16th October 2007

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ROSEMARY NELSON

PUBLIC INQUIRY

 

- - - - - - - - - -

 

SIR MICHAEL MORLAND

DAME VALERIE STRACHAN

SIR ANTHONY BURDEN

 

- - - - - - - - - -

 

 

held at:

Interpoint

20-24 York Street

Belfast

County Antrim

 

on Tuesday, 16th October 2007

commencing at 10.00 am

 

Procedural Hearing


Representation:

Counsel to the Inquiry
Mr R Phillips QC, Mr M Savill, Mr P Skelton
Instructed by the Solicitor the Inquiry

For Mr Nelson
Mr C Harvey
Instructed by Messrs P J McGrory & Co

For Mrs Magee
Mr J O'Hare
Instructed by Messrs J G O’Hare & Co

For the Northern Ireland Office (NIO)
Mr N Hanna QC, Mr P Lewis
Instructed by the Crown Solicitor

For the Murder Investigation Team (MIT)
Mr M Egan QC
Instructed by Messrs Payne Hicks Beach

For the Police Service of Northern Ireland (PSNI)
Mr S Doran, Ms D Creen
Instructed by Solicitors for the PSNI

For the Ministry of Defence (MOD)
Mr N Moss
Instructed by Solicitors for the MOD

For the Security Service
Mr J Swift
Instructed by Solicitor for the Security Service

 

 

1 Tuesday, 16th October 2007

2 (10.00 am)

3 Statement by THE CHAIRMAN

4 THE CHAIRMAN: Good morning everyone.

5 The principal matter to be determined at this

6 hearing is to fix a date for the start of the Full

7 Hearings.

8 At the beginning of September, the Inquiry

9 circulated to the Full Participants' lawyers a proposed

10 agenda for this hearing. We invited them to make

11 comments on the proposed agenda and to put forward their

12 own suggestions for further matters to be discussed at

13 this hearing. None has been received. Accordingly, we

14 will follow the proposed agenda.

15 In a few minutes I will ask Counsel for the Inquiry,

16 Mr Rory Phillips, to give a report on the procedural

17 state of play across all areas of the Inquiry's work, so

18 that all present will understand the extent and range of

19 the investigation which my colleagues and I have

20 conducted pursuant to our terms of reference.

21 That will form the background to the next stage of

22 work, which will take us from here to the start of the

23 Full Hearings. Counsel will outline the Inquiry's plans

24 in relation to that work and set out the main stages in

25 the timetable leading up to the hearings.


1

 

 

1 As everyone present will understand, we would like

2 to start the Full Hearings as soon as we can next year.

3 We informed the Full Participants' lawyers last week

4 that we thought that the Full Hearings could and should

5 begin on Tuesday, 15th April. Of course, we wish it had

6 been possible to start much earlier than this. We hope

7 that Counsel's report on the work which has been

8 undertaken by the Inquiry team on our behalf

9 since January 2005 will help to explain why we have not

10 been able to achieve this.

11 At that stage, I will ask the advocates for the

12 Full Participants whether they have any observations to

13 make on the proposed timetable and start date. It is

14 worth mentioning at the outset that, as far as I am

15 aware, no adverse comment about the Inquiry's proposed

16 start date has been received in advance of this hearing.

17 In the light of any observations made and of any

18 other proposals advanced at that point, my colleagues

19 and I propose to determine the start date for the Full

20 Hearings, whether the 15th April or some other date, and

21 then conclude this hearing so that all those present

22 will leave Interpoint with that start date firmly in

23 mind.

24 Before handing over to Mr Phillips, I would like to

25 take this opportunity to make some more general


2

 

 

1 observations.

2 First, I would like to stress once more that the

3 Inquiry's process is an inquisitorial and not an

4 adversarial one. There are no parties in the Inquiry.

5 We have granted Full Participant status to various

6 persons and bodies, but they are not claimants or

7 defendants and this is not a trial. We do not expect

8 any lawyer who appears before us to be running a case.

9 The Full Participants and their lawyers are here to help

10 us in our Inquiry into the matters set out in our terms

11 of reference and developed in the list of issues which

12 we published in May 2005.

13 This is a fundamental point, which underpins all our

14 work and forms the bedrock of our procedures. I mention

15 it at this stage because from time to time during the

16 course of the Inquiry, it has seemed to the Panel that

17 some of those engaged by our work, both

18 Full Participants and others, have forgotten this basic

19 tenet. Interventions, whether in correspondence or at

20 our hearings, which are not designed to help us to find

21 out the truth are not, and will not be, welcome.

22 As I said in my opening statement delivered over two

23 and a half years ago at Craigavon, this is

24 an independent as well as a public inquiry. Decisions

25 as to the work of the Inquiry have been and will


3

 

 

1 continue to be ours and ours alone. We will consider

2 all of the material our team has gathered and come to

3 our own conclusions about it. We will not allow others

4 to deflect us from inquiring into matters which we deem

5 to be relevant to our work. Equally, we will resist

6 suggestions that we should divert energy, time and

7 resources into matters which we do not consider to be

8 relevant to our work. In short, we intend to maintain

9 a firm control over all our proceedings, both before and

10 during the Full Hearings.

11 I would like to illustrate this important point with

12 two examples. The first relates to witness statements.

13 We have asked over 350 people to provide statements to

14 our appointed solicitors, Eversheds. A very large

15 majority of those asked to help us in this way have

16 co-operated fully with Eversheds in the production of

17 statements. However, as we have noted in earlier

18 procedural updates on our website, some witnesses have

19 not co-operated in this way, either by refusing to

20 respond to the Inquiry's invitation or by failing to

21 deal promptly with draft statements, which has led to

22 unacceptable delays.

23 We would urge everyone approached to give evidence

24 to the Inquiry to assist us by agreeing to be

25 interviewed and by co-operating fully with Eversheds in


4

 

 

1 the interviewing and drafting process. For our part, we

2 will do everything we can to ensure that any such

3 failures to co-operate do not undermine our work or

4 deflect us from our task. Witnesses who elect not to

5 give a statement to us may find themselves summoned to

6 give evidence at the Full Hearings, pursuant to our

7 statutory powers. Their evidence will then be obtained

8 in public, through questions by Counsel to the Inquiry.

9 We have already announced that unacceptable delays in

10 finalising drafts may lead to the statements being

11 treated by us as final and relied upon. In addition, if

12 we take the view that a witness has failed to deal with

13 relevant matters in his or her statement, it is likely

14 that these deficiencies will lead to the witness being

15 called to give evidence at the Full Hearings, so that

16 the full picture may be established.

17 We hope there will be few cases in which this is

18 necessary, because, as we have made clear since the

19 outset of our work, we wish to hear evidence at the Full

20 Hearings only from those witnesses from whom oral

21 evidence is really necessary for us to complete our

22 work. As I put it in my opening statement, "These are

23 likely to be people at the heart of the matters we must

24 investigate, those whose evidence is both material and

25 contested and those who may be the subject of


5

 

 

1 criticism". This is one way in which we intend to keep

2 the Full Hearings as efficient and focused as we can.

3 It is not yet possible to assess how many witnesses

4 will be called to give evidence at the Full Hearings.

5 We expect it to be a minority of the 350 from whom we

6 have requested statements. However, we will, of course,

7 consider and take into account all of the statements we

8 receive, whether or not the maker is called to give oral

9 evidence at the Full Hearings.

10 The second example I propose to mention briefly

11 concerns the disclosure of documents. As Mr Phillips

12 will explain in more detail in a moment, we have

13 gathered in and considered many tens of thousands of

14 documents in the course of our work. In general, we

15 have been satisfied with the level of assistance and

16 co-operation we have received from document holders.

17 Where possible, we have resolved difficulties or dealt

18 with delays by discussion and in correspondence rather

19 than by resort to our statutory powers. But, as and

20 when it becomes clear that further material must be

21 considered or where it appears there has been incomplete

22 disclosure, in any area, we will not hesitate to act.

23 In the remaining time before the Full Hearings, we

24 do not wish our team's time and resources to be taken up

25 by disclosure disputes. However, any person or


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1 organisation holding undisclosed material of relevance

2 to our work would be well-advised to disclose it now.

3 I say that because the failure to produce material to us

4 will not divert us from considering the material we do

5 have and drawing from it whatever inferences seem

6 appropriate. We will not allow any gaps in the record

7 or other deficiencies in the disclosed material to

8 hinder us in our work.

9 Although Mr Phillips will be covering all of the

10 Inquiry's work to date in his report, I would like at

11 this stage to mention the question of anonymity, because

12 it is an area of our work in which the Panel has been

13 heavily engaged for many months.

14 The Inquiry first sought applications for anonymity

15 in the summer of last year. The Panel considered them

16 and made provisional rulings in November. A hearing,

17 attended by representatives of the Full Participants and

18 the major applicant groups, was held in January of this

19 year for submissions to be made on those provisional

20 rulings. That hearing was not open to the public, in

21 part because of the provisional nature of the rulings at

22 that stage and in part to ensure that the matters

23 discussed did not themselves vitiate any application

24 made.

25 Since then, there have been two important decisions


7

 

 

1 in the Robert Hamill Inquiry, in Re Officer L by the

2 Court of Appeal here in Northern Ireland and then by

3 the House of Lords at the end of July. The Panel's

4 consideration of the applications received was

5 suspended, pending the resolution of that litigation on

6 appeal.

7 The current position is as follows. The Panel has

8 received over 120 individual applications for anonymity.

9 Each one is being considered individually by the Panel

10 on the basis of the material supplied to the Inquiry and

11 the submissions made to it at the hearings in January.

12 As all applicants are aware, the Panel will follow the

13 approach of Lord Carswell in the Re Officer L case in

14 reaching its final decision.

15 The Panel has sought further information in relation

16 to a number of applications and a good deal of that

17 material is still awaited. Although we have made

18 a considerable amount of progress with our work in

19 relation to anonymity, it is not at this stage possible

20 to say when the final decisions will be ready for

21 release to applicants and, so far as appropriate, to the

22 Full Participants, but we think it will be before the

23 end of this year. If and when we consider it would

24 assist us in relation to any application to have

25 a further oral hearing, we will take steps to arrange


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1 one. At present, however, given the substantial amount

2 of material we have received and the assistance given to

3 us at the hearing in January, we think that unlikely.

4 I should also mention that many of the applications

5 made to us are for anonymity and screening. In such

6 cases, we propose to deal with both matters in our

7 rulings. Of course, any order for screening would only

8 take effect in relation to witnesses who are called to

9 give oral evidence at the Full Hearings.

10 This leads me to say a word about judicial review.

11 We are conscious of the fact that there have already

12 been a number of judicial review applications made in

13 relation to anonymity and other decisions in the

14 Robert Hamill and Billy Wright Inquiries. First

15 instance decisions in such litigation have been appealed

16 to the Court of Appeal and above.

17 So far as this Inquiry is concerned, there has, to

18 date, been no such ancillary litigation and it is our

19 hope there will be none during the remainder of our

20 work. It is important to stress, however, that the

21 Panel will not permit applications for judicial review

22 to impede our work. That work can only be advanced

23 within the context of the Inquiry and not by litigation

24 elsewhere. It will be hard to convince us that any such

25 application is made in order to help us in our search


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1 for the truth concerning the murder of Rosemary Nelson.

2 I would like, finally, to return to the

3 inquisitorial nature of our process. In an inquiry

4 conducted in this way, it is inevitable that the vast

5 bulk of the work is conducted by the Inquiry team.

6 However, as we approach the Full Hearings, it is vital

7 that all those who are affected by our work, whether

8 Full Participants or others, should assist us and our

9 team as far as they can. This means co-operating with

10 our team in the preparation of those hearings. It means

11 devoting adequate resources to those tasks required of

12 others by the Inquiry and it means undertaking those

13 tasks efficiently and effectively. In that way, we will

14 succeed in delivering adequately-prepared and

15 well-managed hearings next year.

16 I intend to make some brief observations about the

17 conduct of the Full Hearings themselves, but I shall do

18 that at the end of this hearing, when the start date has

19 been determined.

20 I shall now ask Counsel for the Inquiry to report on

21 the work done to date.

22 Mr Phillips.

23 Report by MR PHILLIPS

24 MR PHILLIPS: Sir, you have asked me to give a report on all

25 of our work. I will try and do that as briefly as


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1 I can, although, as you will understand, there is

2 a great deal of ground to cover.

3 It might help to establish a few general points at

4 the outset. The work which I describe has been done by

5 you and your colleagues, by the Inquiry's own team of

6 lawyers and others, by Eversheds, the firm of solicitors

7 you appointed to gather in witness statements, and by

8 Mr Robert Ayling and his team of former police officers

9 who have been considering the question of whether the

10 murder investigation was conducted with due diligence.

11 All of that work has been undertaken so that you and

12 your colleagues may discharge your duty to inquire into

13 the matters set out in your terms of reference and

14 identified in more detail in the list of issues which we

15 published in May 2005.

16 That document and all of the Inquiry's key

17 documents, including our Procedures Document, have been

18 published on our website.

19 We have also placed there a series of procedural

20 updates in which our progress has been charted over the

21 months and years since work started in earnest

22 in January 2005.

23 As you have already observed, the context in which

24 all of this work has been done is that of

25 an inquisitorial process. In such a process, it is


11

 

 

1 inevitable that the Inquiry team shoulders the burden of

2 the work. The Inquiry has gathered in, considered and

3 collated huge numbers of documents. It has taken

4 responsibility for the production of witness statements,

5 as it has for the production of the files of relevant

6 material prepared for use at the Full Hearings.

7 Another consequences of the inquisitorial nature of

8 our process is that in doing all of this work on your

9 behalf, we take no side. Our role is to search out,

10 order, analyse and produce for you the material and

11 evidence which relates to the matters you wish to

12 consider. We have been mindful of the Inquiry's

13 responsibility to act fairly in regard to all of those

14 affected by its work.

15 That approach is, I would suggest, particularly

16 important given the political background to the matters

17 encompassed by your terms of reference and the

18 controversy and sensitivity engendered over the years

19 since Rosemary Nelson's murder by some of the issues

20 which it has been our task to investigate on your

21 behalf. Our approach has, in many areas, been

22 a cautious one. We take the view that it has been

23 a properly cautious approach given the nature of the

24 Inquiry's process and of our role in that process.

25 There can be no doubt, however, that our progress


12

 

 

1 has been slower than we might have wished as a result of

2 the need to ensure at all times that we are acting

3 fairly and properly and with these responsibilities to

4 the fore. Much time, effort and energy has been

5 devoted, for example, to the difficult question of how

6 the very serious matters which lie at the heart of this

7 Inquiry -- namely, the possibility that Government

8 agencies or others might have been to some extent

9 involved with, complicit in or responsible for the

10 murder of Rosemary Nelson -- can fairly be examined in

11 public hearings.

12 Other responsibilities have also had a significant

13 impact on our work. For example, you and your

14 colleagues have, rightly, been concerned that no one

15 should be put at risk as a result of the work of the

16 Inquiry and have acknowledged your obligation under

17 Article 2 of the European Convention on Human Rights.

18 You have already mentioned the very substantial

19 amount of work which has been done on anonymity. I am

20 certainly not aware of any case or trial in which so

21 many applications have been made. The implications for

22 the Inquiry of the number of applications, together with

23 the changes in the applicable law which have taken place

24 since you and your colleagues first began to consider

25 the question, cannot easily be overstated. Nor have the


13

 

 

1 consequences been limited to diversion of energy and

2 resources.

3 We have, of course, sought to minimise the

4 disruption by inserting provisional ciphers in the

5 Part 1 Bundle files which we distributed to the

6 Full Participants' lawyers in May and June this year,

7 and in the witness statements and exhibits which we

8 distributed to them in September. There will, however,

9 be further practical implications, when final decisions

10 are reached and the release and the necessary and

11 consequential adjustments to those files and that

12 material have to be made.

13 The final point that I would like to stress before

14 turning to the individual areas of our work is the

15 question of scale. The range of issues encompassed by

16 your terms of reference is very wide indeed. In

17 addition to considering the very serious issues

18 concerning the murder of Rosemary Nelson which are

19 central to the Inquiry, the terms of reference require

20 you to consider also whether the murder investigation

21 itself was conducted with due diligence, whether that

22 investigation was obstructed or whether attempts were

23 made to do so.

24 The full breadth of the issues under investigation

25 can be gleaned from the 29 issues set out in the list of


14

 

 

1 issues which I have already mentioned. Starting with

2 the question of whether Rosemary Nelson's work created

3 conflict with the RUC (now PSNI), the NIO, the Army or

4 other state agency. They go on to deal with the extent

5 to which those bodies were aware of threats to her in

6 the period before her murder. They cover the complaints

7 made by or on behalf of her and her clients of her

8 alleged mistreatment or abuse by police officers and how

9 those complaints were investigated. They raise the

10 question of what was known to those bodies about threats

11 to her safety, and whether her safety or the level of

12 risk to her was assessed and with what results. There

13 is then the question of what material relevant to her

14 personal safety they had or which was available to them

15 before her murder.

16 Next, a number of questions have been formulated in

17 relation to the murder. They touch on the surrounding

18 circumstances and go on to deal with whether the murder

19 was facilitated by the acts or omissions of the RUC (as

20 was), the NIO, the Army or other state agency. There

21 are then questions regarding the quality of the

22 investigation itself and whether it was obstructed,

23 which I have already mentioned. Finally, there are more

24 general questions about systems, structures and

25 procedures which look to the future and to possible


15

 

 

1 recommendations.

2 Unsurprisingly, therefore, in the light of that list

3 of issues, the amount of material which has been

4 disclosed to and sought out by the Inquiry has been

5 vast. Many people and organisations have disclosed

6 material. However, one example may perhaps suffice to

7 illustrate the scope. The murder investigation itself

8 continued for a number of years and generated a huge

9 record, including over 5,000 statements. That material

10 and all of the other disclosure to the Inquiry,

11 amounting in total to many tens of thousands of

12 documents and hundreds of thousands of pages, has had to

13 be considered, sifted and analysed in order to identify

14 that portion of it which truly pertains to the issues in

15 the Inquiry.

16 I now propose to outline the work which has been

17 done on the preparation of files of documents for use at

18 the Full Hearings and they will make up what we call the

19 Inquiry Bundle. It has been convenient to divide the

20 Bundle into three parts and it may assist those present

21 if I were to describe the contents of each part in

22 a little more detail.

23 The first part covers the majority of the issues in

24 our list of issues, other than those relating to the

25 murder investigation, and, as I will explain, will also


16

 

 

1 make up the majority of the files in the Inquiry Bundle.

2 A large majority of the witness statements sought by the

3 Inquiry have been and will be directed to the issues

4 covered in the Part 1 Bundle. It covers the questions

5 which I have already mentioned as to Rosemary Nelson's

6 safety and, in particular, as to which persons or bodies

7 knew what about threats to her, in particular from 1997

8 to the time of her murder in March 1999. It also

9 contains the material generated during the course of the

10 investigation of the many complaints of mistreatment and

11 abuse made by her, on her behalf or by her clients which

12 were investigated, mostly by the RUC, in that period.

13 There is a section dealing with her work for the

14 Garvaghy Road Residents Coalition and the investigation

15 of complaints which arose from the events of July 1997

16 at Drumcree. The final section contains miscellaneous

17 material, including media comment, transcripts of

18 programmes or documentaries about her and some generic

19 material on the question of the alleged intimidation of

20 defence lawyers in Northern Ireland.

21 The second part of the Bundle, consisting of

22 intelligence-related material, will deal with a number

23 of issues in the list of issues. These documents are in

24 very large part sensitive or highly sensitive, and it is

25 this characteristic which has led to them being grouped


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1 together, rather than any particular subject matter.

2 This is likely to be a much smaller part of the Bundle,

3 consisting of perhaps a dozen files.

4 The final part of the Bundle, Part 3, will be

5 concerned principally with the murder investigation.

6 Most of the material consists of the documents which

7 will accompany and support the report on whether the

8 investigation was carried out with due diligence, which

9 has been compiled by Robert Ayling. In addition, there

10 is material going to three further areas of fact.

11 First, to the question of whether the murder

12 investigation was obstructed or whether attempts were

13 made to do so. Secondly, there will be material on the

14 question of security force activity around

15 Rosemary Nelson's house in the period just prior to the

16 murder. Finally, there is some material relating to the

17 murder scene itself and the immediate aftermath of the

18 murder. These last two topics were investigated in

19 detail by the Murder Investigation Team and documents

20 relating to them have been placed in Part 3 for that

21 reason.

22 With those definitions in mind, I can turn to the

23 state of play in relation to each part of the Bundle

24 before looking briefly at the question of witness

25 statements.


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1 The Part 1 Bundle currently contains 60 files of

2 documents. Once the Inquiry team had put together

3 a draft Bundle, a process of consultation was begun,

4 in September last year. During the process, the

5 providers, authors and recipients of every one of the

6 6,000 or so documents, amounting to some 17,000 pages,

7 were consulted on the question of whether any sensitive

8 redaction to the documents was in their view required.

9 The Inquiry's position was, and remains, that all the

10 documents in this category should be made public, in the

11 absence of good argument to the contrary. Over

12 100 persons and organisations were consulted.

13 Regrettably, not all responded promptly to the Inquiry's

14 request for assistance. Some did not respond at all.

15 Only 13 of the consultees raised questions of

16 substance, which were then considered by the Inquiry

17 team and, where necessary, the Panel, so that decisions

18 on the treatment of documents could be made.

19 A second consultation for further material followed

20 in February this year. 35 consultees were asked to

21 consider material and about half of them raised issues.

22 Despite a great deal of work by the Inquiry team and

23 by others, some of these issues of sensitivity and

24 redaction remain to be resolved. It is hoped, however,

25 that this will happen in the very near future.


19

 

 

1 The Inquiry has also made redactions to the

2 Part 1 Bundle in order to remove irrelevant personal

3 information in accordance with its published procedures,

4 to ensure that unnecessary personal information,

5 including the names of most non-witnesses, did not

6 appear in the Bundle.

7 The final process to which this part of the Bundle

8 has been subjected is the insertion of provisional

9 ciphers, which I have already mentioned. The

10 Re Officer L litigation led to the suspension of the

11 Panel's consideration of anonymity applications, as you

12 have explained. However, the Inquiry was keen to

13 release the Part 1 Bundle to Full Participants as soon

14 as possible. So the provisional ciphers were inserted

15 into the Bundle to preserve the position, pending final

16 rulings on anonymity.

17 The Part 1 Bundle was released under embargo to the

18 Full Participants' lawyers in May and June this year.

19 During the subsequent months, the legal representatives

20 have commented helpfully on inconsistencies or errors in

21 some documents, the Inquiry has itself identified some,

22 and has also conducted yet further checks and supplied

23 corrected pages to the lawyers. The embargo was imposed

24 precisely to allow a period of final correction to the

25 Bundle before its full release to Full Participants. It


20

 

 

1 has proved his worth over the last months and the

2 Inquiry hopes to lift it in the near future.

3 As far as future work on this part of the Bundle is

4 concerned, in addition to the points I have mentioned,

5 we intend to do some tidying up and, where possible, to

6 replace poor copies. Inevitably, there will, as in any

7 case, be further additions to the Bundle. Two examples

8 spring to mind. First, we may wish to add Part 1

9 material which has been disclosed us to after the

10 compilation of the Bundle. Secondly, there is a body of

11 video and DVD material on Part 1 issues which we will

12 issue to the Full Participants and which belongs in this

13 part of the Bundle.

14 There is also work to be done in making it more

15 user-friendly, for example by inserting dividers and

16 producing more detailed indexes. In due course, we will

17 supply an electronic copy of the Bundle to the

18 Full Participants, though it may well be sensible to

19 delay this until after the final anonymity decisions, so

20 that the electronic copy is as "final" as possible.

21 The last thing I would like to say on the

22 Part 1 Bundle is this. We also plan to issue some eight

23 files of further material, material which we believe to

24 be relevant to the issues, but which we have decided

25 does not merit inclusion in the Part 1 Bundle. We hope


21

 

 

1 that that material will be helpful to Full Participants

2 in their preparation for the Full Hearings.

3 Sir, I can deal with the other two parts of the

4 Bundle more briefly, first, because although at least as

5 much work has been done by the Inquiry team and others

6 on these parts, there is at present much less to show

7 for it and, secondly, because, given the nature of some

8 the material, it simply would not be appropriate to go

9 into great detail at this stage.

10 In relation to the Part 2 Bundle of intelligence

11 material, the Inquiry team has considered thousands of

12 documents from more than 15 different organisations.

13 About half of those documents originate with the PSNI.

14 Substantial quantities of material from the

15 Security Service, the MoD and the Cabinet Office have

16 also been reviewed.

17 It is right to record that the process of disclosure

18 has, in some cases and at some times, been slower than

19 the Inquiry would have wished. The Inquiry has spent

20 a considerable amount of time using all of the methods

21 at its disposal to ensure that relevant material was

22 disclosed in a timely fashion. Although disclosure has

23 continued to be made until as recently as last month,

24 the current situation is that there are no significant

25 disclosure disputes on foot and unresolved.


22

 

 

1 The Inquiry team has analysed the material disclosed

2 and from it has selected a core collection of material

3 amounting, as I have said, to about a dozen files which

4 will make up the Part 2 Bundle. Drafts has been

5 supplied to the providers and discussions have taken

6 place over the last months so as to enable this part of

7 the Bundle to be released to the Full Participants. For

8 obvious reasons, this is a complicated and detailed

9 process.

10 The Article 2 responsibilities, which I have already

11 mentioned, are at the fore here. Questions of national

12 security and future operational capability may also be

13 said to arise in the context of this part of the bundle.

14 The same is true in respect of some of the Part 3

15 material, which has also had to be approached with

16 appropriate care. The question of relevance is also

17 important in that context. Given the sensitivity of

18 some of this material, the Inquiry has been prepared to

19 redact parts of documents on the basis that they are not

20 relevant to our work, provided, of course, that the

21 sense of the document is not affected and its full context

22 remains clear.

23 Turning to the third and last part of the Bundle,

24 Part 3 consists, in the main, as I have said, of

25 material which will accompany Mr Ayling's report.


23

 

 

1 Mr Ayling, who was formerly the Acting Chief Constable

2 of Kent, was appointed by the Inquiry in the summer of

3 2005 to prepare a report to the Inquiry on the question

4 of whether the murder investigation was carried out with

5 due diligence. He assembled a small team of experienced

6 former police officers, none of whom had served in the

7 RUC/PSNI. They began to consider the material generated

8 by the investigation in the October of that year, with

9 a view to preparing a draft report.

10 At the beginning of February this year, their draft

11 was sent to the original Murder Investigation Team,

12 represented by the leader of that investigation,

13 Mr Colin Port, for their review and comment. Their

14 response to the draft report was received at the end of

15 last month and the beginning of this month.

16 In addition, the Ayling team and the Inquiry have

17 put together the files of material relating to the draft

18 report and have subjected those files to the redaction

19 and other processes I have already mentioned. The

20 contents of the Bundle will not be finalised until the

21 report is itself final, but it seems likely that this

22 part of the Bundle, which, as I have said, also covers

23 the issue of obstruction, of security force activity

24 over the weekend before the murder and of the murder

25 scene itself, will consist of about 35 files, divided up


24

 

 

1 between the chapters of the report to which they relate.

2 As far as the question of the sensitivity of this

3 material is concerned, the Inquiry has asked the PSNI to

4 consider the finalised report and accompanying documents

5 from the point of view of possible Public Interest

6 Immunity and Article 2 concerns, supplying a copy of the

7 draft Bundle to the PSNI in June this year for that

8 purpose. I will turn to this question in a moment when

9 considering the next stage of our work leading up to the

10 Full Hearings. In addition, providers of documents have

11 been consulted in relation to their own material,

12 although most of the material in the Part 3 Bundle

13 emanates, of course, from the Murder Investigation Team

14 itself.

15 The final topic I would like to mention is witness

16 statements. From its work on the material disclosed to

17 it, the Inquiry has drawn up lists of witnesses

18 totalling, as you said, about 350 for Eversheds, the

19 Inquiry's appointed solicitors, to interview on the

20 Inquiry's behalf. The witness statement process

21 includes the following significant stages: finding

22 witnesses, dealing with the appointment by them of

23 lawyers, collating documents for the interviews,

24 preparing for the interviews, conducting the interviews,

25 preparing draft statements, revising the drafts in the


25

 

 

1 light of comments by witnesses and their lawyers, and

2 then finalising and signing off the statements. Much,

3 but not all, of that work has been undertaken by

4 Eversheds.

5 However, once received, the witness statements and

6 their exhibits have to be subjected to the Inquiry's

7 redaction and other processes. Where documents

8 exhibited to statements already appear in the

9 Part 1 Bundle, we have sought to avoid duplication by

10 not preparing exhibit files, but have inserted

11 cross-references to existing page numbers in the Bundle.

12 In this way we hope to keep the size of the Bundle at

13 least manageable. Where documents have been referred to

14 by witnesses but have not appeared in the Bundle, then,

15 if relevant and significant, they have been added to the

16 Bundle and, if not, they have been placed in files

17 specifically devoted to additional material. In both

18 cases, there has been consultation with providers to

19 deal with possible questions of sensitivity.

20 As can perhaps be imagined from my description,

21 these processes take time and there is inevitably

22 a delay of some months between the Inquiry's receipt of

23 a final signed statement and it being ready for

24 distribution to Full Participants. We have done and are

25 doing what we can to speed up this process at every


26

 

 

1 stage but, as you have indicated in your opening

2 remarks, we will continue to be dependent to

3 a significant extent on reasonable levels of

4 co-operation and help from others in this area of work.

5 As far as distribution of statements is concerned,

6 we sent out the first batch of 62 on 6th September this

7 year. We intend to release further, more substantial

8 batches of about 80 statements each in mid-November and

9 late January next year.

10 For the purposes of considering progress on witness

11 statements, it is, I think, helpful to put them into

12 categories equating to the three parts of the Bundle.

13 By this, I mean it is possible to describe a statement

14 as a Part 1, Part 2 or Part 3 statement. Of course, the

15 reality is more complicated than that, because some

16 witnesses deal with a range of issues. Thus, a witness

17 might give evidence as to threats received by

18 Rosemary Nelson of which he or she was aware. These are

19 Part 1 issues. However, the witness might also have

20 been at the scene in the immediate aftermath of the

21 murder, and her statement might therefore deal with

22 those Part 3 issues. To avoid duplication of numbers,

23 witnesses have been characterised as belonging to that

24 part to which their evidence most obviously and closely

25 relates. For those reasons, the numbers we use -- the


27

 

 

1 numbers I am about to use -- are indicative rather than

2 precise.

3 However, using this rough characterisation, there

4 are about 240 Part 1 witnesses. It can therefore be

5 seen that they make up a substantial majority of the

6 witnesses who have been asked to give evidence, which,

7 as you mentioned, is about 350. The remainder of the

8 witnesses are shared between Parts 2 and 3.

9 As for the Part 3 witness statements, it is also

10 worth pointing out that a very substantial majority are,

11 or will be, for the most part, concerned with limited

12 issues of fact, for example, relating to the murder

13 scene or to security force activity on the weekend of

14 the murder.

15 So far as due diligence is concerned, the Inquiry

16 has taken the view that it would be more appropriate for

17 the Murder Investigation Team to address the contents of

18 Mr Ayling's report when finalised in submissions rather

19 than in witness statements. The Murder Investigation

20 Team's lawyers have indicated that they may wish to

21 adduce some evidence to support their submissions, but

22 this evidence will not be obtained by interviews

23 conducted on behalf of the Inquiry. In any event,

24 the Inquiry expects to call the most senior officers

25 responsible for the murder investigation to answer


28

 

 

1 questions at the Full Hearings based on the Ayling

2 report. The Inquiry's solicitors will, however,

3 interview those individuals in relation to the question

4 of whether their investigation was obstructed, in order

5 to obtain statements on that important issue of fact.

6 Sir, that is a survey of all the work we have done.

7 I was now proposing to look, in much less detail, you

8 will perhaps be relieved to here, to the future and what

9 we propose so far as the timetable leading to the Full

10 Hearings is concerned.

11 THE CHAIRMAN: Thank you.

12 MR PHILLIPS: So far as the next stage of our work is

13 concerned, in relation to, first, to the Part 1 Bundle,

14 I think I have already covered the future work that we

15 envisage. To recap on the statements, we released 62 in

16 the early part of September and expect to release two

17 more batches of about 80 in mid-November and

18 late January next year. All of them are Part 1

19 statements, on the basis of the characterisation

20 I mentioned a minute or two ago. So it follows, on that

21 basis, that just over 220 of the 240 or so statements in

22 this category dealing with the Part 1 issues, which, as

23 I have explained, form the bulk of the issues on our

24 list of issues, will have been sent out by that time.

25 Of course, by that point also the Full Participants'


29

 

 

1 lawyers will have had the Part 1 documents for

2 seven months or more. From the outset of our work, we

3 have made it clear that we would notify

4 Full Participants of the Inquiry's decisions as to

5 whether witnesses should be called to give evidence at

6 the Full Hearings. Just as we are releasing witness

7 statements in batches, so we intend to notify, in

8 relation to batches of witnesses, the Inquiry's

9 decisions on this topic, starting early next month and

10 continuing thereafter as statements are sent out.

11 In relation to the Part 2 Bundle, I have described

12 the discussions which have taken place over a number of

13 months with the relevant providers. Based on our

14 experience to date, we believe that all sections of this

15 part of the Bundle will be ready for release to the

16 Full Participants by late January. Of course, if it

17 proves possible to release individual sections before

18 that, we will do so. In relation to the Part 2

19 statements, we expect the vast bulk of them to be ready

20 for distribution to the Full Participants by the end

21 of February next year. Of course those statements cover

22 intelligence-related issues. The period from now to the

23 end of February allows for discussion between the

24 Inquiry, the witnesses' representatives and the relevant

25 Full Participants in order to resolve, so far as is


30

 

 

1 possible, questions of sensitivity in relation to those

2 statements, so as to enable them to be released to all

3 Full Participants.

4 So far as Part 3 is concerned, I would like first to

5 deal with the Ayling Report. Mr Ayling and his team

6 intend to finalise the report in sections in

7 a continuing process, leading to a completion date in

8 mid-December. The Inquiry hopes to release the

9 finalised sections of the report and the accompanying

10 parts of the Part 3 Bundle, as and when they are ready,

11 to the PSNI for them to consider, in collaboration with

12 the Murder Investigation Team, from the point of view of

13 possible PII or Article 2 concerns, as I have explained.

14 The Inquiry hopes that this staged release process will

15 begin in mid-November. We believe we will be in

16 a position to release the report, the accompanying

17 Part 3 Bundle and the Part 3 witness statements to the

18 Full Participants about the end of February. In

19 relation to some of that material, the same observations

20 apply that I made in relation to the process of dealing

21 with sensitive issues.

22 Again, in relation to this work, as in relation to

23 all our work, if we are in a position to release

24 material earlier, we will of course do so. In relation

25 to Part 3 particularly, I have in mind some of those


31

 

 

1 statements which, as I mentioned, deal with relatively

2 limited factual issues.

3 Sir, on the basis of all of that information, it

4 seems to us that the Full Hearings could start after the

5 Easter break, and the date we propose is Tuesday,

6 15th April. It may be, of course, that some witness

7 statements have yet to be issued by that stage. There

8 may be some loose ends here or there, as in most cases.

9 However, the view we take is that, by that time, there

10 will be enough material and perhaps, more importantly,

11 enough significant material to open all of the issues

12 which you will wish to consider at the Full Hearings.

13 When assessing when it would be right to start, you

14 may think it appropriate to consider the following

15 points. By mid-April, the Full Participants' lawyers

16 will have had the Part 1 Bundle for ten months. They

17 will have had the Part 1 statements, a huge majority of

18 them, for a number of months, with the first batch of 60

19 being held since September. We propose that the primary

20 focus of the evidence in the first part of the Full

21 Hearings should be on those Part 1 issues. That is not

22 to say that no evidence on other parts will be called.

23 I have already made clear that some statements deal with

24 issues in more than one part, but the focus that we

25 propose is on the Part 1 issues. What we can also say


32

 

 

1 at this stage is that no evidence on Part 3

2 due diligence issues will be called before the summer

3 break. By then, those with an interest in those matters

4 will have had all of the material for six months or

5 more.

6 Sir, on the basis of this proposed timetable, and

7 bearing in mind the inquisitorial nature of the process

8 whereby the main burden of preparation will fall on the

9 Inquiry team, we believe that it would be right to start

10 on 15th April.

11 THE CHAIRMAN: Thank you very much.

12 Mr Harvey, I am going to ask you and then, in

13 sequence, each counsel for the various

14 Full Participants, first, to address the Panel, if they

15 wish, and make any submissions as to the proposed start

16 date for the Full Oral Hearing of Tuesday, 15th April.

17 On that matter, Mr Harvey, have you anything you wish to

18 say to us?

19 MR C HARVEY: Yes, Chairman, I am obliged for the time. We

20 have no observations to make at this stage in relation

21 to the timetable that has been set out very helpfully by

22 Mr Phillips this morning, other than to say that we are,

23 of course, anxious to co-operate as far as we can with

24 the Inquiry in getting the Inquiry started on

25 15th April.


33

 

 

1 THE CHAIRMAN: Thank you very much, Mr Harvey.

2 Mr O'Hare?

3 MR O'HARE: Yes, Mr Chairman. I am grateful to you again.

4 Very similarly, Mr Chairman, we would obviously welcome

5 the earliest possible start to the works of the Inquiry

6 at this stage in the public hearings, and certainly we

7 have no adverse comment to make in relation to the

8 proposed start date.

9 THE CHAIRMAN: Thank you.

10 Mr Hanna?

11 MR HANNA: Sir, as far as the Northern Ireland Office is

12 concerned, we have no difficulty whatever with the

13 proposed start date and we are content with it.

14 THE CHAIRMAN: Thank you very much.

15 Mr Egan?

16 MR EGAN: Sir, on behalf of the Murder Investigation Team we

17 have nothing to submit.

18 THE CHAIRMAN: Thank you.

19 Mr Doran?

20 MR DORAN: Yes, sir. In relation to the PSNI's position, we

21 have no submissions to make in respect of the proposed

22 start date, and the PSNI will continue to co-operate as

23 fully as possible with the Inquiry team.

24 THE CHAIRMAN: Thank you very much.

25 Mr Moss?


34

 

 

1 MR MOSS: Sir, the Ministry of Defence sees no difficulty

2 with that starting date.

3 THE CHAIRMAN: Thank you.

4 Mr Swift?

5 MR SWIFT: Sir, the Security Service have no observations to

6 make in relation to the proposed start date.

7 THE CHAIRMAN: Thank you very much. I think it might be

8 convenient actually to adjourn a little earlier for

9 a mid-morning break, and if anybody has any submissions

10 to make on any of the matters raised either by myself or

11 Mr Phillips, or any other matter, I will again ask each

12 counsel in turn to do that after we have had a break.

13 The purpose of the break is mainly to ease the strain of

14 the stenographers. We will have a break of 20 minutes

15 and then resume.

16 (11.00 am)

17 (A short adjournment)

18

19 (11.25 am)

20 THE CHAIRMAN: We are grateful for the co-operation of all

21 parties, and there seems to be a general consensus, so

22 we have decided that the Full Oral Hearings will begin

23 on Tuesday, 15th April next year, and that date is set

24 in stone.

25 I will now ask each counsel for the Participants in


35

 

 

1 turn if they have any other matters they wish to raise

2 or any submissions to make.

3 Mr Harvey?

4 MR C HARVEY: Yes, Mr Chairman. No, I have no submissions

5 to make at this stage.

6 THE CHAIRMAN: Mr O'Hare?

7 MR O'HARE: No, Mr Chairman, I have no submissions to make.

8 THE CHAIRMAN: Mr Hanna?

9 MR O'HARE: No submissions, sir.

10 THE CHAIRMAN: Thank you.

11 Mr Egan?

12 MR EGAN: No thank you, sir.

13 THE CHAIRMAN: Mr Doran?

14 MR DORAN: No submissions to make, sir.

15 THE CHAIRMAN: Thank you.

16 Mr Moss?

17 Submissions by MR MOSS

18 MR MOSS: Sir, there had to be one. May I raise briefly

19 the matter of screening, if I may. You said in your

20 introductory comments, sir, that many of the

21 applications you had received for anonymity were in fact

22 applications for anonymity and screening. Sir, as you

23 may recall, that is not the case with the MoD because we

24 have simply, at this stage, made anonymity applications.

25 Sir, in June 2006, in our initial anonymity


36

 

 

1 application, again in December of 2006, and when I was

2 last before you in January of this year, sir, we made

3 clear that what we were doing was making purely

4 anonymity applications but there may need to be

5 screening applications at a later stage, so far as MoD

6 was concerned.

7 In the January hearings I sought to explain why that

8 approach was thought to be appropriate by MoD, and

9 necessary in the case of the MoD, and that was that the

10 MoD witnesses cover a very large range, an extensive

11 range, of different types of role, from those who

12 clearly would not require screening through to a number

13 of those who clearly would require screening.

14 So far as MoD witnesses are concerned, the decision

15 as to whether a screening application is appropriate

16 depends upon a close examination of a wide variety of

17 factors, such as: the nature of the Army work that they

18 were involved in at the time; work that they have done

19 for the Army subsequently; those who they may have come

20 into contact with during the course of their work; what

21 work, whether Army or civilian, they are currently

22 engaged in; where they live, whether in Great Britain or

23 here in Northern Ireland. And so on.

24 To make applications for more than 40 witnesses

25 involving that individual consideration would be very


37

 

 

1 resource intensive. It was for that reason that we have

2 always indicated, over the course of more than 18 months

3 now, that we would wish to make screening applications

4 once we knew at MoD which MoD witnesses were to be

5 called.

6 Sir, I raise that now just because I wish, on behalf

7 of my clients, to be entirely open about what our

8 intentions are as regards screening, as I believe we

9 have been throughout. I do not for one moment, sir,

10 believe this is going to imperil the timetable at all,

11 but I just wish to put a marker down, so far as MoD is

12 concerned, that once we know which witnesses are going

13 to be called to give oral evidence there may well, in

14 some individual cases, on a case-by-case basis, be

15 further screening applications at that stage for the MoD

16 witnesses.

17 THE CHAIRMAN: One way of dealing with it, Mr Moss, is for

18 the Panel to confidentially notify the

19 Ministry of Defence which witnesses we are considering,

20 provisionally, giving anonymity to, and then asking the

21 Ministry of Defence to notify us within 28 days whether

22 they wish also to apply for screening.

23 MR MOSS: Sir, that would be of great assistance.

24 THE CHAIRMAN: That should be plenty of time.

25 I see there is assent from your instructing


38

 

 

1 solicitors that that is the position.

2 MR MOSS: Sir, yes, that would be of great assistance. We

3 could then focus on the individuals that the Inquiry is

4 most interested in.

5 THE CHAIRMAN: Clearly, we have had in mind, when we have

6 considered any Ministry of Defence witnesses, the sort

7 of matters that you have alluded to already.

8 MR MOSS: Yes, sir, of course.

9 THE CHAIRMAN: Thank you, Mr Moss.

10 MR MOSS: Thank you, sir.

11 THE CHAIRMAN: Mr Swift, have you anything you wish to say?

12 MR SWIFT: Sir, no, I have no submissions to make.

13 THE CHAIRMAN: Thank you. Mr Phillips, is there anything

14 you wish to say about what Mr Moss has said?

15 Submissions by MR PHILLIPS

16 MR PHILLIPS: Sir, just this. That acts as a spur for all

17 of us to notify in relation to MoD, as of course in

18 relation to all witnesses, as soon as we can, the

19 Inquiry's decision as to whether individuals will be

20 called to give evidence at the Full Hearings.

21 THE CHAIRMAN: Yes. Thank you.

22 Before bringing this hearing to an end, I would like

23 to mention some points relating to the Full Oral

24 Hearings themselves. They will, I hope, indicate our

25 thinking on matters which we will set out in detail and


39

 

 

1 in writing nearer the start date.

2 First, the sitting hours. We intend to start our

3 hearings on Monday at 1.00 pm each week and then to sit

4 until 4.45 pm, with a break in the mid-afternoon, not

5 least to give the shorthand writers a much needed rest.

6 On Tuesday, Wednesday and Thursday we intend to start at

7 10.15 am, break off at 1 pm and then sit again from

8 2.00 pm until 4.45 pm, with similar breaks in the middle

9 of both sessions. On Fridays, we will sit from 10.15 am

10 until 1.00 pm, with a break in the middle of the

11 morning.

12 Shortly before the start date, we will issue

13 a timetable for the hearing, so as to enable all

14 concerned, and particularly witnesses, to plan ahead.

15 It is not yet possible to assess how long the Full

16 Hearings will last, but it is clear they will take some

17 months, even with goodwill on all sides and efficient

18 management of the timetable. We are all conscious of

19 the strain which long and continuous hearings can put on

20 those taking part. With that in mind, we plan to build

21 in regular breaks to the timetable.

22 We expect the hearings to continue until the early

23 part of July, and then to resume in early September. As

24 Mr Phillips has already explained, the primary focus of

25 the evidence in the first part of the Full Hearings will


40

 

 

1 be on the Part 1 issues. No evidence on the question of

2 due diligence in relation to the murder investigation

3 itself will be heard until after the summer break.

4 Finally, I would like to say a word about

5 questioning witnesses. As we made clear from the start

6 of our work, and in accordance with the inquisitorial

7 nature of our procedures, we expect the vast majority of

8 the questioning of witnesses called to give evidence at

9 the Full Hearings to be undertaken by our Counsel on our

10 behalf.

11 As far as the questioning itself is concerned, we

12 will issue a simple protocol for use at the Full

13 Hearings, whereby counsel for the Full Participants, or

14 for any witness granted the right to be represented,

15 will be required to provide suggested questions or lines

16 of inquiry in writing to our Counsel 48 hours before the

17 witness is called. Our Counsel will then endeavour to

18 address these questions or issues with the witness

19 during the evidence, where they consider it appropriate.

20 Where any other counsel considers that a matter

21 previously raised in writing has not been put to the

22 witness then, before the conclusion of that evidence

23 they should raise it with our Counsel. If, having

24 reconsidered the matter, our Counsel does not believe it

25 necessary or appropriate to put the point to the


41

 

 

1 witness, it will be open to the other counsel to apply

2 to us for permission to raise the issue with the

3 witness. Such cases will be the exception rather than

4 the rule. We do not intend to permit the Full Hearings

5 to be lengthened by adversarial, unnecessary or

6 repetitive questioning.

7 Where it seems to us that a witness who is called to

8 give evidence at the Full Oral Hearings may face

9 criticism in the course of the Inquiry's work, a letter

10 will be sent to the witness, outlining the issues which

11 are most likely to be raised in questioning. Of course,

12 it is likely that those who have already given witness

13 statements to Eversheds will have a good understanding

14 of the issues the Inquiry is likely to raise with them

15 at the Hearings. Such letters, sometimes called Salmon

16 letters, will not, of course, express the concluded or

17 even provisional views of the Panel, nor will they

18 constitute a prejudgment of the issues. They will

19 simply allow the witness to consider the matters to be

20 canvassed with him or her, and sufficient time and

21 adequate opportunity to prepare to deal with those

22 matters. We aim to send out such letters to relevant

23 witnesses not less than 14 days prior to them being

24 called. I should emphasise at this stage that there

25 will be many witnesses called to give evidence at Full


42

 

 

1 Hearings for whom such a letter would not be

2 appropriate.

3 Finally, I would like to thank everyone for

4 attending today on time. That concludes the business of

5 this hearing.

6 (11.40 am)

7 (The hearing concluded)

8

9
Statement by THE CHAIRMAN ........................ 1
10
Report by MR PHILLIPS ............................ 10
11
Submissions by MR MOSS ........................... 36
12
Submissions by MR PHILLIPS ....................... 39
13

14

15

16

17

18

19

20

21

22

23

24

25


43