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Full Hearings

Hearing: 24th June 2009, day 130

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ROSEMARY NELSON

PUBLIC INQUIRY

 

 

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held at:
The Interpoint Centre
20-24 York Street
Belfast BT15 1AQ


on Wednesday, 24th June 2009
commencing at 10.15 am.


Day 130

 

 

 

 

 

 

 



1 Wednesday, 24 June 2009

2 (10.15 am)

3 Closing submissions by MR PHILLIPS (continued)

4 THE CHAIRMAN: Yes, Mr Phillips?

5 MR PHILLIPS: Sir, we had in the Part 2-section, as it were,

6 reached the point where I was explaining about the

7 rather dramatic increase in the levels of reporting

8 during the course of 1997, and particularly in the

9 second half of that year. You are very familiar with

10 the more significant reports, for example, concerning

11 Rosemary Nelson's behaviour in relation to witnesses,

12 and at RNI-541-167, for example, the suggestion that she

13 was very close to PIRA.

14 But may I also remind you that during this year, as

15 in 1998, as we will see, there was also reporting about

16 her private life, about her family and friends and her

17 other associations, which doesn't, at least not

18 obviously, fit within any broader strategic or tactical

19 intelligence gathering aim or under any such heading.

20 But, sir, in my submission, it would be reasonable to

21 infer that by 1997, she was someone of specific interest

22 to Special Branch.

23 May I mention in this connection the question of the

24 extent to which CID were aware of this intelligence, and

25 specifically about the reporting as to her suspected

 

 

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1 association with Lurgan PIRA.

2 Now, there is nothing in the material you have to

3 suggest that there was a general briefing on this topic

4 of CID officers. What you have, however, is, for

5 example, evidence that it was usual or normal practice

6 to inform the senior investigating officer of

7 intelligence that was relevant to a particular CID

8 investigation, and, for example, the intelligence in

9 relation to her alleged conduct on the Colin Duffy

10 defence, one would have anticipated came into that

11 category. And you have heard from the Special Branch

12 side, from B567, and also from the investigating officer

13 in the case, Detective Inspector Monteith, to the effect

14 that it did in fact occur in relation to most, but not

15 all, of the relevant reporting.

16 So far as the other agencies are concerned, it looks

17 from the material, you may think, as though at this

18 point she was of peripheral interest to the Security

19 Service, although, of course, she did feature in their

20 work in relation to Drumcree and the Residents

21 Coalition.

22 So far as the Army is concerned, again, there is

23 a relative dearth of material, but it is apparent, for

24 example, from the August 1997 int rep, which is

25 RNI-511-099, that her perceived association with

 

 

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1 Colin Duffy and Lurgan PIRA was known to a section of

2 3 Royal Irish.

3 Can I look at the alleged relationship between her

4 and Colin Duffy about which you have heard a good deal

5 of evidence and seen a good deal of material. In

6 addition to the reports in 1997 and 1998, you know that

7 as a result of surveillance operations there were

8 observations of Colin Duffy and Rosemary Nelson

9 together, usually in Rosemary Nelson's car, in the

10 evening or late at night. One of those operations --

11 and the relevant document is RNI-548-212 (displayed) --

12 specifically targeted that alleged association.

13 Now, so far as the evidence was concerned, you have

14 heard now from a number of Special Branch officers in

15 which they have, in the course of their evidence,

16 explained to you what the pointers were, if I can put it

17 that way, which led to their belief that there was an

18 affair, a romantic relationship, taking place; the fact

19 that the intelligence came from more than one source

20 over a period of several months, the sources were

21 reliable, and of course the surveillance observations

22 that I have mentioned.

23 Against that, you will remember the fact that no one

24 actually saw certainly any form of sexual contact

25 between them and, indeed, the possibility, to put it no

 

 

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1 higher, that there were other reasons why they were

2 meeting and talking in the way that had been observed.

3 And that leads to the obvious point, but I'm going to

4 mention it anyway, that there may well -- and this is at

5 least a possibility -- have been a misconstruction here

6 of a relationship which was a friendly relationship, but

7 nothing more than that.

8 What, then, on the basis of the evidence, was its

9 significance to the Special Branch officers and the

10 other intelligence officers? At least three

11 possibilities arise. The first is it may have assisted

12 Special Branch to know that Rosemary Nelson and

13 Colin Duffy were spending time together, because that

14 might assist them in their planning of any operations

15 targeted on local PIRA. Secondly, you have heard

16 evidence as to the possibility at least of recruitment,

17 recruitment of Colin Duffy or Rosemary Nelson as sources

18 and you have heard evidence that this was considered by

19 Special Branch and the Security Service, although the

20 witnesses were keen to stress that there were powerful

21 reasons why that possibility was in both cases rapidly

22 dismissed.

23 Thirdly, it may have been of significance, the

24 alleged relationship, to Special Branch's ongoing work

25 in monitoring local PIRA activity and, in that,

 

 

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1 the perception of Rosemary Nelson as a supporter of not

2 only Colin Duffy, but potentially of other PIRA

3 volunteers may have been thought to be significant.

4 Now, drawing those points together, I would suggest

5 that at the very least the reporting and the perception

6 as to the alleged relationship made Rosemary Nelson

7 a person of greater interest to the intelligence

8 agencies than she would otherwise have been, and the

9 question for you, not in this part of the case, if I can

10 put it that way, but much more generally, is whether

11 those allegations also made her more prominent, more

12 high profile in the wrong way, if I can put it that way,

13 in other people's eyes.

14 It made her, in short, more of a hate figure amongst

15 those chillingly exemplified by the author or authors of

16 the "Monster Mashed" pamphlet, people who wished her no

17 good, who wished her harm and who, in due course, were

18 glad to celebrate her murder.

19 And it is in this connection -- but, of course,

20 there are a number of other incidences -- that the

21 Part 2 material, I hope, can be seen for what it is: as

22 providing a further layer of information, which may shed

23 light, which may help you to make connections between

24 that and other parts of the case.

25 Now, that leads me to the issue of the evidence that

 

 

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1 you have heard as to who knew of the allegations, who

2 knew about what was being said in relation to these two

3 individuals. And on that, you have had a great deal of

4 evidence, which it is hard, frankly, to summarise. But

5 I would suggest that in relation the intelligence

6 agencies, the evidence is that certainly from 1998, if

7 not before, those officers you have heard from uniformly

8 were aware of the matter and regarded themselves as

9 having a professional interest, indeed, in knowing

10 about it.

11 In relation to the RUC more generally, that is more

12 difficult, you may think, on the evidence, to determine,

13 ie the extent to which there was knowledge in CID, for

14 example, or beyond that in the uniformed part of the

15 force. Some Special Branch officers told you that their

16 belief was that the relationship was well-known outside

17 Special Branch and, indeed, was an open secret in the

18 wider community in Lurgan, or at least that part of it

19 centred on the Kilwilke Estate. And that was one of the

20 moments in the evidence, if you remember, when the

21 expression "the dogs on the street" was used.

22 However, in relation to the RUC officers themselves,

23 the evidence was, you may think, not so clear and

24 consistent. To take some examples, M540 and P285

25 acknowledge that had they did know, they did hear of the

 

 

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1 rumour before Rosemary Nelson's death. However, other

2 officers in CID, Detective Inspector Monteith and P121,

3 were equally clear to you that they did not.

4 One of the difficulties here, as in other parts of

5 the evidence, is untangling what people knew before the

6 murder of Rosemary Nelson and what they have learnt

7 since, as a result of all of the focus on events, which

8 inevitably took place after the time of her death.

9 That is a general recollection that some, but by no

10 means all, of the witnesses specifically recognised in

11 their evidence to you. Of course, when you consider the

12 evidence of those CID officers who did say that they

13 were aware of it, the question is how. And so far as

14 P285 is concerned, for example, he said that he was

15 aware of rumours and newspaper reports, but couldn't in

16 fact be more specific. M540 told you that he had been

17 told about it by the local Special Branch inspector,

18 B567. Again, the precise circumstances of that were not

19 clear.

20 Now, sir, in relation to the open source reporting

21 and the reference made by a very large number of the

22 witnesses to the Casanova article, if I can put it that

23 way, may I urge you to be cautious about that? It

24 requires a certain amount of interpretation to read into

25 the article the allegation, the particular allegation,

 

 

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1 with which we are concerned.

2 THE CHAIRMAN: In The Businesswoman?

3 MR PHILLIPS: In The Businesswoman exactly, sir, yes.

4 It may well be, one doesn't know, that where, as

5 a lot of witnesses did, they reached for the article in

6 their evidence to explain that they almost certainly

7 heard about it and knew about it through coverage in the

8 media, that may have been something which, again, was

9 more obvious after the murder than it had been at the

10 time. Don't forget that that wasn't, I think, published

11 until possibly February 1999.

12 Now, sir, the final question I want to raise or

13 mention in relation to knowledge within the RUC or PSNI

14 is the position of the Chief Constable, which you may

15 think, on this and on the questions of his knowledge of

16 intelligence reporting generally, is a little less

17 straightforward.

18 Three witnesses -- Geralyn McNally,

19 Sir Joseph Pilling and Mr Watkins -- gave evidence to

20 you that they had been informed by Sir Ronnie of the

21 rumour, and that is evidence which you have to consider

22 against what Sir Ronnie told you both about the

23 circumstances in which he said he thought he may have

24 heard about it, but also about his more general evidence

25 in relation to Special Branch briefings about

 

 

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1 Rosemary Nelson, which I'm going to turn to in just

2 a moment.

3 The possibilities are many and varied arising out of

4 that evidence, and plainly one of them is that the full

5 extent to which Sir Ronnie was in fact briefed in

6 relation to Rosemary Nelson, whether in connection with

7 the Indus application or at any other time before her

8 murder, may not at this point have been accurately

9 recalled by him. There are obviously other

10 possibilities.

11 Looking again briefly at the question of the extent

12 to which the rumours permeated outside the police force,

13 I have mentioned the evidence of some Special Branch

14 officers on that. The question here, you may think, is

15 not just whether it became, as some said, known in

16 Lurgan and in particular in that part of Lurgan

17 associated with Rosemary Nelson's clients, the Kilwilke

18 Estate, but perhaps more importantly, whether it

19 permeated further into Loyalist circles, and there the

20 evidence was much less clear.

21 What you do know, of course, is that in the "Monster

22 Mashed" leaflet, produced, of course, after the murder,

23 this allegation is repeated. The question is, of

24 course, the extent to which that information, those

25 rumours, was known about before the murder took place.

 

 

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1 May I also remind you of another item of evidence,

2 which I raised with Mr Port during the course of

3 questioning him, and that was the extract from one of

4 the many transcripts of the covertly recorded material

5 in Operation George, in which one of the main suspects,

6 as we have been calling him, made a remark -- and of

7 course this was after the murder, but made a remark

8 indicating at the very least that he knew of the rumours

9 and of the allegation of the relationship between

10 Rosemary Nelson and Colin Duffy.

11 And to remind you, sir, I raised that with Mr Port

12 in the course of a discussion about whether knowledge of

13 that allegation, the suggestion of that sort of very

14 close relationship, might not have put Rosemary Nelson

15 at greater risk and, therefore, might not be relevant to

16 his investigation in terms of intelligence.

17 Now, sir, turning to 1998, the same phenomenon that

18 we observed in 1997 is repeated; in other words, there

19 is a still further increase in the volume of reporting

20 in Special Branch about Rosemary Nelson. The Army

21 reporting continues to be very moderate. However, it is

22 in 1998, as we all know, that the Security Service

23 documentation in relation to Indus and the Security

24 Services' involvement in that operation took place, and

25 that evidence, both from Security Service officers and

 

 

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1 Special Branch officers and, indeed, the material in our

2 bundles, is considered in great detail in 5.6 of

3 Chapter 5.

4 Now, the point about the operation clearly, so far

5 as the Security Service was concerned, is that it

6 brought Rosemary Nelson and her perceived association

7 with Colin Duffy directly to the attention of the

8 management, if I can put it that way, of the Security

9 Service and in particular the DCI, who gave evidence

10 to you.

11 Now, sir, I don't want to get into the detail of

12 that today. As I say, it is covered extensively in the

13 written material. You will remember, however, in brief,

14 the history being that the relationship and in

15 particular the lawyer/client side of this was played

16 down or, indeed, omitted from the original

17 Special Branch material. And what you will remember is

18 that the point was taken by the Security Service

19 officers when they first saw the material and then

20 became a major feature in the presentation to the

21 Secretary of State and a major area of concern on her

22 part, there being two concerns, however.

23 The first was the legal privilege aspect, but the

24 second was the perception that Rosemary Nelson was the

25 sort of person who, if something went wrong, would make

 

 

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1 a great deal of it. And so, inherent in the Secretary

2 of State's consideration in the presentation to her by

3 the Security Service were these two features: the

4 perceived willingness of Rosemary Nelson in that way to

5 cause trouble, which is consistent with all the

6 intelligence reporting we have been looking at, which is

7 in the files; and the particular relationship between

8 them.

9 It is right to say by that late stage that the

10 original focus of the Special Branch application, which

11 was on the personal nature, sexual nature, of the

12 relationship, had been covered, or covered up, rather,

13 by the Security Service officers in their focus on the

14 legal issue and the question of privilege. But that, in

15 broad terms, was, as it were, the history of the

16 application.

17 Clearly, this point in time, August 1998, is

18 arguably one of the most important moments in the

19 chronology, because at this point one has the ICPC saga,

20 if I can put it that way, in full flow; one has the

21 threat assessment in relation to Rosemary Nelson being

22 undertaken; one has, in addition, the KPPS issue,

23 whether or not directly involving her, going on; and

24 finally one has the Indus application in which the

25 material in relation to her is drawn together.

 

 

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1 Now, so far as this hearing is concerned, sir, what

2 I want to stress, and all I want to stress, is that it

3 was the same office, the same Special Branch office,

4 that was involved in the threat assessment

5 in February 1998, which was in turn involved in the

6 preparation of the Indus application in its original

7 form in August 1998.

8 Now, that application, if you remember, included

9 Rosemary Nelson as one of a number of suspected PIRA

10 activists and sympathisers in a great list, in fact,

11 with no distinction made between, at least on the face

12 of the document, her and any of the others.

13 Now, sir, so far as that is concerned, that moment

14 in the chronology, that is perhaps the most obvious

15 example of all that we have of the need at that point to

16 be aware of what was known across the piece and whether

17 or not account, proper account, was taken of it.

18 Now, so far as 1998 is concerned, you won't have

19 forgotten -- but I will just mention briefly -- the

20 other application for an intercept on the office. There

21 is very little material about it, but you have now heard

22 some evidence about it. It appears to have been crushed

23 at a very early stage and not proceeded. And, again, I

24 should say for clarity that there is in fact no evidence

25 in the material you have that the Indus operation,

 

 

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1 although approved eventually by the Secretary of State,

2 in fact went ahead.

3 Now, sir, can I turn very briefly to 1999, because

4 in a sense the striking thing about 1999 is how little

5 intelligence reporting there is in relation to

6 Rosemary Nelson. And, of course, it is a very brief

7 period of that year that we are concerned with before

8 her murder, but there is, compared to the busy months of

9 the previous two years, very little on the files.

10 And that, of course, sir, is something I will return

11 to a little later, because when considering the murder

12 investigation and how intelligence was provided to the

13 Murder Investigation Team, the issue of obstruction, the

14 starting point, and something which mustn't be

15 forgotten, I suggest, is that there was, so far as the

16 Inquiry's work has revealed, no advanced warning of the

17 attack, and also, as some of the witnesses indicated to

18 you, not a great deal of intelligence, considering the

19 prominence of the victim and the political ramifications

20 of her murder, not a great deal of intelligence after

21 the murder.

22 Sir, can I turn finally on the Part 2 issues to

23 address, I am afraid without any apology, the question

24 of the way Rosemary Nelson was perceived? So far as

25 Special Branch are concerned, I would suggest that the

 

 

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1 accepted view of her, both in the South Region and in

2 Headquarters, may be summarised as follows: that she was

3 a solicitor who supported PIRA volunteers in Lurgan

4 through the provision of unethical legal advice, but was

5 not herself an active PIRA volunteer; 2, that she had

6 had an affair with a prominent local suspected PIRA

7 member, Colin Duffy; and 3, that she supported the

8 residents of the Garvaghy Road in her position as their

9 adviser; and 4, was a vocal and, indeed, an influential

10 critic of the RUC.

11 So far as the officers whose evidence you have heard

12 from other parts of Northern Ireland are concerned --

13 I mean the Belfast and Antrim officers -- it is perhaps

14 not surprising that she was not so well-known to them,

15 because, of course, she did her work and she lived

16 outside their regions. However, it is, in my

17 submission, surprising that the Chief Constable was, on

18 his own account, completely unaware of the views held

19 not only in South Region, but more importantly, from

20 this point of view, by very senior Special Branch

21 officers based at Headquarters, unaware of those views

22 or, as he told you, of any of the specific intelligence

23 reports on which they were based.

24 He had a background which included service in

25 Special Branch and he was briefly, as you know, head of

 

 

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1 the organisation. He was known as a hands-on

2 Chief Constable. Rosemary Nelson was renowned, during

3 the period we are considering at least, as the solicitor

4 for the Garvaghy Road Residents Coalition and had in the

5 context of Drumcree been critical publicly and privately

6 in the complaints system, the complaints that were made,

7 of police conduct, police brutality indeed, at Drumcree

8 in 1997. She was also well-known as the solicitor for

9 Colin Duffy, who was himself someone who was very much

10 on the Chief Constable's radar and about whom he was

11 briefed, you remember, specifically in late 1997,

12 following Colin Duffy's arrest there as a result of what

13 became a mini affray, if I can put it that way.

14 Now, so far as Sir Ronnie is concerned, he also

15 knew, as he told you frankly, about the rumour in

16 relation to the alleged affair. He knew about

17 Operation Indus, indeed he had been briefed by the

18 senior Security Service officer in Northern Ireland

19 about the Secretary of State's concerns, or her disquiet

20 both about legal privilege and the potential for adverse

21 publicity.

22 He was also aware, as a result of his involvement in

23 the threat assessments, that concerns had been raised

24 about her safety and that his officers were alleged to

25 have uttered threats and made derogatory comments

 

 

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1 about her.

2 Now, that is just a summary of the material against

3 which, if I can put it that way, you will have to come

4 to a view about this apparent and very strong disparity

5 between the views held by the various Special Branch

6 officers I have mentioned and the views which Sir Ronnie

7 told you firmly and repeatedly that he held about

8 Rosemary Nelson, which were, as he pointed out,

9 evidenced by the comments that he made about her

10 immediately after her murder to the effect that, as far

11 as he was aware, she was a woman doing her job as

12 a lawyer. That phrase again "doing her job".

13 And the question in essence is whether it is likely,

14 on the basis of all of the material that you have heard,

15 that none of these matters, as I say, the views shared

16 by so many Special Branch officers, came, during the

17 period with which we are concerned, to his attention.

18 Now, so far as the Security Service and their

19 perception is concerned, you will have seen various

20 references in the written material, comments about the

21 nature of the relationship, the alleged relationship,

22 but also about Rosemary Nelson more generally. However,

23 in the witness statements that the Security Service

24 produced for the Inquiry, they were, you may think,

25 conspicuously more reticent in discussing their

 

 

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1 knowledge of and perception, indeed, of Rosemary Nelson,

2 or indeed in venturing very far at all outside the rigid

3 limits of the written text before them.

4 Now, there might be all sorts of entirely

5 understandable reasons for that. It is a striking fact

6 that many Special Branch officers have produced long and

7 detailed witness statements to you, dealing with very

8 much the same sort of material, in stark contrast to the

9 relatively brief and, if I may say so, without

10 disrespect, tight-lipped offerings from the Security

11 Service.

12 So far as their evidence is concerned, I would like

13 to mention a couple of examples. In the context of the

14 Indus application, you will recall that the DCI, S436,

15 was unable to remember any significant details of the

16 conversations he had about the operation, either with

17 the Secretary of State or the Chief Constable or,

18 indeed, I think I'm right in saying, with the Head of

19 Special Branch or his own director general.

20 Now, Mr Skelton put to him that there were some

21 unusual, if not unique features to this application: the

22 fact that the suspected PIRA member was living in the

23 house owned by his alleged lover; the fact that she was

24 a lawyer; the Secretary of State's concerns, which made

25 the whole process of getting her consent rather

 

 

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1 difficult; and, of course, and importantly, the fact

2 that within a relatively short period of the operation

3 having been approved, the owner of the house,

4 Rosemary Nelson, had been murdered. All of those being

5 factors, you may think, which might at least have

6 cemented some of the details of those important

7 conversations in the DCI's memory.

8 However, he wasn't, he told you in his evidence,

9 able to assist you beyond the range of the documentary

10 material which had been created.

11 Now, so far as the Army is concerned, on the

12 material you have they play a lesser part, a lesser

13 role, than the other two organisations. That's not to

14 say that Rosemary Nelson was not a person of note, if I

15 can put it that way. However, in terms of the

16 generation of material, the amount of focus which

17 appears to have been directed to her, there is, you may

18 think, a clear distinction.

19 Now, sir, can I just return to the point I made

20 earlier, and that is the relationship between these

21 topics, this evidence, and the wider evidence, the wider

22 range of issues you have to consider?

23 The first in relation to other topics is whether

24 there is any connection between the reporting that you

25 have seen, particularly the Special Branch reporting,

 

 

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1 and the remarks that were made or allegedly made in the

2 interviews. And that will involve considering the

3 question I have mentioned -- I'm not going to go over it

4 again -- about wider dissemination, but also a question

5 of attitude. To what extent is the evidence showing an

6 attitude which was, as it were, all of a piece, whether

7 in the secret world of intelligence reporting or in the

8 more open world of the conduct of interviews or, on the

9 other hand, conduct on the Garvaghy Road in July 1997.

10 And secondly, that same question must, I would

11 submit, be relevant to a consideration of the way in

12 which the threat assessments were conducted. Are the

13 difficulties which I outlined yesterday attributable to

14 the system, to the defects in the process, that it was

15 an intelligence check to be done and not a full-blown

16 assessment, or was there in play here an element of

17 prejudice, an adverse set of attitudes against someone

18 regarded as no friend of the police, someone only too

19 willing to generate adverse publicity for the

20 organisation, someone about whom it would not,

21 therefore, be worth taking any great trouble.

22 Those are the points that you may think you should

23 bear in mind, and that is, I hope, a helpful

24 illustration of what may be a bridge here between this

25 part of the case and the other items on your very long

 

 

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1 agenda.

2 Now, sir, that's what I wanted to say about Part 2,

3 and I'm now going to turn to Chapter 6 of the

4 submissions and to the topic of security force activity.

5 It is a topic on which the family have made submissions

6 and also on which you have now received submissions from

7 the Ministry of Defence.

8 If we look together, please, at the index to

9 Chapter 6 (displayed), you will see the topics which are

10 covered, and a good deal of evidence was called on this

11 and a number of witnesses questioned, mostly, I think by

12 Mr Savill. And what we have done in the Chapter -- as

13 we did in the evidence, indeed -- is to focus on the

14 particular incidents that you want to explore in the

15 evidence, and they are the checkpoint, the mystery

16 checkpoint, the man in the balaclava, the unexplained

17 activity in the Land Rovers, the two helicopters, and

18 then really, I think by way of sweep-up, if I can put it

19 that way, the further evidence that you have on security

20 force activity, including from those witnesses who gave

21 statements to the Pat Finucane Centre.

22 Now, before the Inquiry was established, long

23 before, indeed, very shortly after the murder,

24 suggestions were made that there had been an unusual

25 level of security force activity on the weekend before.

 

 

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1 Those allegations were investigated, you will remember,

2 in immense detail by the Murder Investigation Team and,

3 as Mr Ayling has pointed out in his report, some

4 analytical work was done for the Murder Investigation

5 Team which, in turn, was checked by analysts working for

6 Mr Ayling and, as it were, given their own seal of

7 approval. I'm not going to take you to any of that

8 material.

9 What has been done during the course of these

10 hearings is to limit consideration by reference first to

11 a starting time on the evening of the Sunday at about

12 half past six, when the family party came back from

13 Bundoran, and secondly, to focus on what appeared to be

14 odd or unresolved or unexplained incidents or events

15 notwithstanding all of the work done by the Murder

16 Investigation Team.

17 And so far as they are concerned, all I'm going to

18 do is to take you through and remind you of some of the

19 features and, I think, more importantly, frankly, to

20 show you the charts which we have prepared, which are in

21 most cases new or revised or improved, because certainly

22 in relation to the helicopter evidence, you have

23 received a huge amount of material, indeed, a number of

24 the witnesses from whom you have heard had before that

25 given in some cases half a dozen statements to the

 

 

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1 Murder Investigation Team. But certainly speaking for

2 myself, it is sometimes hard to work out exactly what

3 the issues are and who is saying what about it. So it

4 may be that the charts will help.

5 Can we look at the first issue, which is the mystery

6 checkpoint, and the chart there is at RNI-934-006 --

7 yes. I think that's right (displayed) -- because this

8 is the evidence of the McStravicks, you will remember.

9 And I think I'm right in saying that the coloured dots

10 represent their efforts, in the course of their

11 evidence, to point to the parts where they believed they

12 saw the checkpoint.

13 Of course, the first issue is what you made of their

14 evidence. If there was a checkpoint, why was there no

15 record of it; why is it that some of the other

16 witnesses, witnesses spoken to by the Murder

17 Investigation Team, didn't mention it although they

18 passed along the same road at the same sort of time as

19 the McStravicks? In other words, why is it that there

20 are people who say they were present in the relevant

21 area, but don't say that there was a checkpoint.

22 But, again, with this, as with all of these issues,

23 the fundamental question is what light, if any, does any

24 of this, even if it is correct, shed on the issues that

25 you have to consider; in other words, is there any link

 

 

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1 established in the evidence between what was observed by

2 the McStravicks and the circumstances of the murder and

3 any allegations, for example, of security force

4 involvement in it. That's all I want to say about that

5 first incident.

6 The second is the --

7 THE CHAIRMAN: Is not the timing of that of some

8 significance, in that it is so early in the evening?

9 MR PHILLIPS: Yes, exactly. And that may, you may think, be

10 relevant at that last juncture; in other words, even if

11 one accepts that they are witnesses of truth who have

12 accurately recalled every single detail, does it in fact

13 matter, if I can put it that way? Yes.

14 So far as the balaclava man is concerned, there the

15 relevant map is, I think, one we saw at the beginning,

16 RNI-934-010 (displayed), which is a map, you can see,

17 setting out various security force activity points, that

18 the Castor Bay Road checkpoint is at the top of the map,

19 you see. And then in a different colour, in blue, on

20 the left, is the balaclava incident. And for

21 completeness, you will see the hoax device at the

22 bottom. That was another feature of events that evening

23 or that day. Then the helicopter flights are traced on

24 the remainder of the map.

25 The question here is what did the O'Connors see and

 

 

25


1 where was it. Mr and Mrs O'Connor, as they then

2 weren't, I think, but now are, remembered seeing

3 a masked person getting into a Land Rover at the top of

4 Victoria Street on the Sunday evening, they thought at

5 about eight o'clock or half past eight, and there were

6 two RUC officers putting him in. There were variations

7 in their later accounts and you will remember the

8 question arose as to whether they were mistaken as to

9 the day it had taken place, and the key factor in all of

10 that seemed to have been that they were -- whether they

11 were or weren't going to a pop concert.

12 So the question again, sir, is this: even though

13 this is or was by the Murder Investigation Team

14 unresolved, and even though you may think there are

15 still inconsistencies or oddities in the evidence, is

16 there any connection between what was observed, any

17 link, between that and what happened to Rosemary Nelson.

18 Now, the Land Rover activity, I think we have

19 another chart for that at RNI-934-007 (displayed). Yes.

20 This is the, if I can put it that way, the takeaway

21 incident, in the sense that the witnesses who observed

22 it were involved in delivering takeaways. Again, a wide

23 variety in the descriptions given in the earlier witness

24 statements, and the question arises as to whether there

25 was in truth anything sinister or, perhaps more

 

 

26


1 importantly, any link between what was going on there,

2 if what they say is correct, and the planting of the

3 device and the subsequent detonation and murder of

4 Rosemary Nelson.

5 Sir, that's all I want to say about those, and it

6 takes me, with, I have to say, a very considerable

7 degree of trepidation to the helicopters, a topic on

8 which I claim absolutely no expertise at all, but one on

9 which you have heard a considerable amount of evidence.

10 Whether the overall impact of that evidence on you was

11 to clarify your views on the matter rather than to add

12 layers of confusion, it is not for me to say.

13 It is dealt with in considerable detail in this

14 Chapter at 6.5, and in particular Gazelle 4 at 4.5.6 to

15 6.5.8. Now, so far as the charts are concerned, we go

16 back, I think, to RNI-934-010 (displayed). And there

17 are two flights here, and you will see them on the

18 right-hand side in brown. Those are the timings. And

19 the issues, you may think, are the purpose, duration,

20 the routes of the helicopter, Gazelle 4, on the Sunday

21 evening, the issue, as you remember, about the video,

22 the cassette, and what happened to it, and of course the

23 presence on board the flight of A645.

24 Now, what we have set out in the written submission

25 for you is, first of all, some general material about

 

 

27


1 the use of helicopters in Northern Ireland at the time,

2 because without that, really one doesn't get any proper

3 appreciation of the particular evidence. So far as

4 those present on board were concerned, I have mentioned

5 645, the liaison officer, you heard from the pilot,

6 Mr Wakeham, the commander, whose name was Swain, did not

7 cooperate with the Inquiry and you didn't hear evidence

8 from him, although of course you had a number of

9 statements, as, indeed, you had from most of the other

10 Army personnel involved.

11 And the evidence, as shown you, I would suggest that

12 it was perfectly normal for helicopters to be deployed

13 in these circumstances at this time in order to assess

14 levels of disorder and events on the ground, and for

15 helicopters doing that -- or undertaking that sort of

16 work to have a liaison officer on board.

17 You have heard the evidence from A660, who told you

18 that he had been asked to task a helicopter to

19 investigate the hoax device, and do you see, that's at

20 the bottom of the map there in blue? On the face of it,

21 that, you may think, appears to be entirely normal.

22 The next question arises whether there was

23 a recording made of events on the ground. Was that in

24 itself unusual? What might have been on the tape which

25 was made and then, of course, a little, as it were,

 

 

28


1 self-contained further dispute: what happened to the

2 cassette? Was it lost, was it inadvertently or

3 deliberately recorded over? I'm not going to attempt to

4 do justice to the evidence in that particular dispute,

5 as it were, save to say at the end of it, as at the end

6 of all of these issues on security force activity, the

7 question is whether there is any link between these

8 events which have been investigated in such detail and

9 which have thrown up these anomalies or apparent

10 inconsistencies, and the murder of Rosemary Nelson.

11 Now, as far as Gazelle 6 is concerned, this is, if

12 anything, an even more complicated history and it is

13 dealt with in the Chapter at 6.5.9. There is

14 a substantial section there with, as you will see in the

15 index, useful subheadings because, again, it is very

16 important to get a firm hold of where you are in the

17 dispute as you get into the detail.

18 There are a number of documents in the bundle which

19 record or at least deal with the question of the second

20 flight and the idea that there was no record of it, and

21 they have all been gone through with the witnesses: The

22 operations log, the brigade log, the radio log, the ATC

23 transcript, the operational forecast and, finally, the

24 pilot logs.

25 So the questions include: the tasking, the

 

 

29


1 retasking, the purpose, the duration and the routes of

2 this particular helicopter's flights.

3 Now, in terms of the evidence, you have written

4 evidence in addition to the documents I have just

5 mentioned, but you did not hear from either the pilot of

6 Gazelle 6 or the commander, and those were

7 Messrs Waldron, I think, and Haynes. So the live

8 evidence, if I can put it that way, in relation to the

9 helicopter was from the same liaison officer I mentioned

10 earlier; in other words, A645.

11 Now, you heard some evidence that the alteration,

12 changes, in tasking was not unusual and it might be, for

13 example, that this was why Gazelle 6 was used, in

14 a sense, as a continuation of the work that had been

15 done earlier in the evening by Gazelle 4. However,

16 there is an issue, which you have now heard evidence

17 about and which Mr Savill has pursued in questioning the

18 witnesses, about the failure to keep records of the

19 later flight, first of all, and to close the log for the

20 day or the night, whichever way you want to put it, on

21 the part of the relevant individual who was responsible

22 for the operation's log.

23 And that raises the question, of course, as to

24 whether what happened here was the result of

25 incompetence, the result of people simply not doing what

 

 

30


1 they ought to have done in accordance with procedure, or

2 whether there is in the evidence evidence of wrongdoing,

3 to put it in that rather bland way.

4 And if you are considering that topic, in my

5 submission you have to consider what would the

6 unauthorised purpose of the flight have been, the later

7 flight, the timing on our screen there in orange, 23.25

8 to 23.50 approximately.

9 Bear in mind that you are not dealing with

10 a situation of a complete absence of records. There

11 were some records in the radio log, for example, there

12 wasn't an entirely blank page, if I can put it that way.

13 However, what did happen, if you remember, in the

14 chronology of the statement-taking was that originally

15 neither the liaison officer, A645, nor Mr Waldron

16 mentioned that second flight. That, when it emerged, if

17 you remember, led to further enquiries which revealed

18 that there was a gap in the reporting and no record of

19 it in the ops log and, in turn, that the op log had not

20 been closed properly, which led, as I remember reading

21 from the transcript, to various suggestions being put by

22 members of the Panel to the relevant individual as to

23 what might have been going on instead in the ops room

24 that evening.

25 A642, who I think was on the end of those questions,

 

 

31


1 suggested to you that there was no real requirement for

2 a line to be drawn, as it were, at the end of the

3 relevant page, at the end of the shift. He accepted

4 that he hadn't closed it, as he perhaps should have

5 done, and that the next man in had closed it for him,

6 when in fact what he should have been doing, according

7 to correct procedure, is opening and not closing. And

8 he gave you an explanation for that at Day 116, page 32:

9 "The only explanation I can give for that, sir, is

10 that it is a fault of my own for not closing the log

11 down and clearly stating that I was handing over to the

12 next watchkeeper, and that is somewhat of a dereliction

13 of the watchkeeper's duty."

14 Now, that, you may think, was a reasonably frank

15 concession made to you in the hearing and, again, the

16 question for you is whether there is anything sinister

17 either in that omission of itself or when taken in

18 combination with the other questions which have been

19 raised about Gazelle 6.

20 Now, so far as that is concerned, the question you

21 would have to address is whether all of the various

22 members of the crew were in on any nefarious, covert

23 purpose, and your difficulty there, as pointed out by

24 the Ministry of Defence in their submissions, is that

25 you have only heard from one of those who was on board.

 

 

32


1 Of course, if they were not all in on the nefarious

2 purpose, then the question you would have to consider is

3 how would the wrongdoer have ensured that things

4 proceeded as he wanted to for his own purposes without

5 making the other two, or however many there were,

6 innocent persons aware of his wrongful purpose.

7 THE CHAIRMAN: We have a number of innocent forms and,

8 indeed, you could conceivably have everybody an innocent

9 form of somebody else.

10 MR PHILLIPS: Indeed, some directing mind. All I can say

11 about that is that you haven't heard from -- and I think

12 in the evidence have not been able to identify -- the

13 directing mind.

14 The final questions, I would suggest, are what role

15 in all of this A645 played. Is there any relevant, by

16 which I mean effectively sinister, inference to be drawn

17 from his failure to mention it at the first opportunity?

18 And then finally, as with all of these matters, whether

19 there is any evidence, evidential link, established

20 between these events, puzzling and odd though they may

21 be, and what happened to Rosemary Nelson?

22 So that's what I wanted to say about security force

23 activity.

24 It may be that that's a good moment to break off.

25 THE CHAIRMAN: Shortly before quarter to 12.

 

 

33


1 (11.26 am)

2 (Short break)

3 (11.46 am)

4 THE CHAIRMAN: Yes, Mr Phillips?

5 MR PHILLIPS: Sir, the next topic to mention is that of

6 behaviour at the scene, about which you have heard some

7 evidence, and on which there is a good deal of

8 documentary material in the form of statements,

9 particularly to the Pat Finucane Centre, obtained over

10 the years. Indeed, in the chapter, which is Chapter 7,

11 that we have produced, the list of witnesses goes on to

12 five or six pages under this heading.

13 However, what we have sought to do in the chapter --

14 and I hope it is helpful -- is to divide the witnesses

15 into categories. And perhaps we can look at the

16 Chapter 7 index, please (displayed).

17 There they are. Positive comments about behaviour

18 at the scene; in other words, those who in their

19 statements say that the conduct of the security forces

20 at the scene, there was no ground for criticism at all;

21 those who make no comment, obviously we don't spend much

22 time considering them. Then general allegations of what

23 is described here as poor behaviour, and then one or two

24 specific incidents: The failure to report a sighting

25 incident, you remember, involving the various call

 

 

34


1 signs, patrols, and then the incident investigated

2 before the Inquiry took place, about which you have

3 heard some evidence, of contamination of the scene.

4 As you can see, the detail is very obviously set out

5 in the document. Can I just mention a couple of aspects

6 at the moment? Firstly, by reminder of one of the

7 witnesses, C150. You remember his evidence, and you

8 will see references to that at the beginning of the

9 chapter and, indeed, in 7.4.13. He is the witness, you

10 remember, who said that there were soldiers laughing and

11 joking, and he recounted the incident of the doll being

12 thrown out of the back of the Land Rover, which his wife

13 also referred to in her evidence. She has the cipher

14 C158, and you can see her referred to at the bottom of

15 that page.

16 One other witness I would like to mention in this

17 category is O675. His evidence to you is summarised

18 there, 7.4.10, and he gave evidence about what he saw as

19 inappropriate behaviour. He also talked, if you

20 remember, about security force activity and, like

21 a number of witnesses, particularly witnesses to the

22 Finucane Centre, they addressed what we have decided to

23 deal with as two separate topics within the same

24 statement. That included reference in his evidence to

25 the movement of soldiers -- do you remember, he

 

 

35


1 described the very fast movement from what he thought

2 was near Ashgrove Drive and the change in their position

3 between his first visit to the scene and his subsequent

4 visit with his wife?

5 Now, that's something he hadn't mentioned before in

6 his PFC, or Pat Finucane Centre, statement and he

7 explained to you what the differences were between the

8 business of giving a statement to the statement and

9 giving it to the Inquiry.

10 I mention that simply because this is another area

11 clearly where the Murder Investigation Team spent a huge

12 amount of time considering the material, the statements,

13 the evidence, to the extent that they had them, and this

14 is an example of a suggestion, an allegation, which they

15 didn't -- and it is not criticism -- have an opportunity

16 to consider.

17 Now, so far as the failure to report a sighting

18 matter is concerned, that involves rather more

19 witnesses, and the issue before you on that can be

20 subdivided perhaps as follows: which individuals of

21 note, if I can put it that way, were spotted at the

22 scene; by whom; what efforts were made to report them;

23 were any of those efforts blocked or rejected and, if

24 so, why; and, as usual and as ever, what significance

25 does any of that have. Because on this point, as on all

 

 

36


1 of the points after the murder, you are looking, of

2 course, for something that will shed light on the issues

3 within your Terms of Reference.

4 Of course, it is not impossible that behaviour after

5 the murder might shed some light on the circumstances

6 which led to the murder. It may be, however, in

7 relation to behaviour of whatever kind, that if you are

8 satisfied that it is properly established on the

9 evidence, it will assist you more on attitudes than on

10 anything which might have a causative role to play in

11 what happened to Rosemary Nelson in a direct sense.

12 Now, so far as the detail of the failure to spot

13 allegations, coming back to that, that, if you remember,

14 emerged rather later in the course of the murder

15 investigation, and the nub of it was that Mr Jopling

16 said he had asked A620 to radio in a sighting, but he

17 said the reaction he got -- Day 88, page 16 -- was he

18 probably wouldn't bother with that.

19 A620's evidence is, first, that he didn't see the

20 individuals and he didn't refuse to radio any sightings

21 in. And he was questioned by Mr Savill not only about

22 the particular incidents, but about more general issues,

23 attitudes, and that led to the exchanges, for example,

24 between you and Mr Maxwell-Scott about what could be

25 gleaned from the evidence of a single individual as to

 

 

37


1 more general attitudes within the 3 Royal Irish, for

2 example, or within the security forces more generally.

3 And I'm not going to go over that.

4 Now --

5 THE CHAIRMAN: The failure to report the sighting may be

6 significant in two regards. One is attitude.

7 MR PHILLIPS: Yes.

8 THE CHAIRMAN: The other is who those individuals

9 coincidentally turned out to be.

10 MR PHILLIPS: Absolutely, and whether it is of itself

11 significant, if they were there, that they were there.

12 And in particular whether their presence in that part of

13 Lurgan was of itself significant. Yes, absolutely.

14 Yes.

15 DAME VALERIE STRACHAN: And also perhaps it might be

16 relevant, if there was some sinister reason, to the

17 question of obstruction of the investigation.

18 MR PHILLIPS: Indeed. Absolutely. And that is a point

19 I was going to come on to in relation not only to this

20 incident, but to the next one, in relation to the

21 alleged interference or tampering at the scene. Because

22 we have chosen to group the evidence together under the

23 heading "behaviour at the scene", but of course it might

24 equally be said to fall under the heading of

25 obstruction, or attempted obstruction.

 

 

38


1 Now, so far as the charts are concerned, I'm going

2 to keep coming back to the charts to show you what is in

3 the various files. There is now a chart -- I don't

4 think we had this before -- at RNI-934-011, which sets

5 out the call sign locations on the Saturday and the

6 Sunday, and there you see the various L numbers and

7 their positions.

8 So far as the members of the call signs -- it is

9 a slightly odd phrase perhaps, but I hope you know what

10 I mean -- there is another chart, it is a very big

11 chart, at RNI-934-012. I hope we can show it

12 (displayed). Yes.

13 Now, that rather appealing piece of work -- I think

14 we can enlarge bits of it. Can we try enlarging the top

15 left-hand quarter? Oh, yes, there. So this will,

16 I hope, helpfully -- I'm varying the diet of my talking

17 to you -- allow you to see, certainly in relation to the

18 witnesses who have ciphers, i.e. those who aren't simply

19 redacted names and, in one case there, you can see, who

20 have a name -- that's Mr Jopling -- at the bottom of the

21 column in from the right there -- who was in the various

22 call signs during the relevant period, and I hope that

23 will be helpful because, again, as I have said before,

24 you have a very large number of statements from a large

25 number of individuals and that may help you to

 

 

39


1 categorise some of them.

2 Now, the last incident I want to talk about briefly

3 is the P614 incident in which it was alleged that

4 another police officer, a sergeant -- his identity has

5 never been established despite the efforts of the

6 Inquiry, the Murder Investigation Team, the Police

7 Ombudsman -- that that sergeant kicked some debris

8 around on the scene and uttered a remark.

9 Now, as you know, this is something that emerged

10 very late in the day. It emerged in very particular

11 circumstances, which I'm going to go through. It was

12 taken up immediately by the Murder Investigation Team

13 and then in due course, as I say, elsewhere.

14 In the statement and in the evidence given by that

15 officer, P614, who made these allegations, or

16 suggestions, you may think that he in two respects drew

17 back from the nature of his original allegations. As

18 originally described, the comment of the sergeant was:

19 "Fuck her, she is better off dead."

20 Or:

21 "She fucking deserved that."

22 Whereas in his evidence, he told you that what had

23 been said, as far as he could recall, was:

24 "She is better off dead."

25 Secondly, was the kicking to one side accidental or

 

 

40


1 deliberate? And on that, again, if you remember, in his

2 evidence, he suggested that it was or may well have been

3 accidental; in other words, not deliberate tampering.

4 Now, clearly, as I have said before, this could be

5 taken by you both as relevant behaviour at the scene,

6 for all the reasons I have been through, but also as

7 some form of obstruction by tampering with the evidence

8 and thereby seeking to impede the subsequent murder

9 investigation.

10 Clearly, in terms of P614, because there is no other

11 evidence of this -- the sergeant not having been

12 successfully identified or called to give evidence --

13 the obvious question is why nothing was said by P614 at

14 the time or, indeed, for a considerable period after the

15 murder. And you will want to weigh that up, I know,

16 when you consider the credibility of that witness.

17 So, sir, that's all I wanted to say about those

18 issues. I would like now to turn to due diligence,

19 which is Chapter 8 of the submissions, and look, please,

20 at the index to that chapter, headed "The investigation

21 of the murder" (displayed).

22 Here, in terms of the submissions you already have,

23 you have obviously detailed written and oral submissions

24 made to you on behalf of the Murder Investigation Team.

25 In terms of the treatment these issues have been

 

 

41


1 given in Chapter 8, you will see the various subheadings

2 there. And so far as they are concerned, from 8.7 to

3 8.11, you have the five issues that, in your letter of

4 12 January, the solicitor's letter on your behalf, you

5 indicated you wished to hear oral evidence on, and that

6 was what in due course happened in the evidence given

7 not only by the four senior officers from the

8 investigation, but also of course Mr Ayling and, indeed,

9 the two officers from Kent who had a brief involvement

10 at the outset, you remember. The focus was very much on

11 the five points.

12 Now, so far as they are concerned, we can look,

13 I hope, at Chapter 8, page 3, for a reminder of them

14 (displayed) -- thank you -- in paragraph 8.1.2.6. And

15 there they are: the early intelligence received as to

16 suspects; reliance on the same and its validation; the

17 hypothesis; the scrutiny of other suspects; victimology;

18 and Operation George, with particular reference to

19 resources.

20 Sir, so far as those are concerned, in truth you may

21 think that they all relate to a single question

22 underpinning all of the evidence on this topic, which is

23 really whether the Murder Investigation Team's effort,

24 their attention, their time, was focused too narrowly on

25 the key suspects, whether it should have continued to be

 

 

42


1 so focused in that way, because when you look at the

2 evidence under the five headings there, there is a great

3 deal of overlap.

4 Now, so far as the evidence that you have is

5 concerned, in Mr Ayling's report each of these topics is

6 dealt with in great detail, as, of course, are a number

7 of other topics. And it is right to remind you that the

8 report, all two lever arch files of it, is full of

9 commendation in terms of the work of the investigation

10 team. There are approving comments and opinions

11 expressed by Mr Ayling on a wide range of other aspects

12 of the murder investigation. And what you did with the

13 letter on 12 January was to focus on the areas of real

14 dispute or difference between Mr Ayling on the one hand

15 and the MIT officers on the other.

16 THE CHAIRMAN: In Chapter 8, the commendations or

17 uncontested positive matters are not specifically

18 listed, or are they?

19 MR PHILLIPS: They are, yes. If you look at the previous

20 page, page 2, there.

21 THE CHAIRMAN: Good.

22 MR PHILLIPS: Nothing if not comprehensive.

23 THE CHAIRMAN: No.

24 MR PHILLIPS: Now, so far as that is concerned, it is an

25 important reminder, as is, I hope, the following, which

 

 

43


1 is that Mr Ayling did not reach a conclusion overall as

2 to the question of due diligence, and that is obviously

3 a matter for you to consider.

4 Is that in itself significant? Do you feel able to

5 reach such an overall conclusion or rather to address

6 matters under the five headings that the solicitors have

7 set out in the letter of 12 January? That's a matter

8 for you.

9 Now, so far as the detail is concerned, I'm not

10 going to remind you of the points taken by the MIT in

11 their written submissions and canvassed in detail with

12 Mr Ayling about whether or not he is qualified to give

13 the opinion that he has given at such length at all.

14 You have all the material on that and I have absolutely

15 no doubt will form your own views about it.

16 So far as the way in which he went about his work is

17 concerned, the first topic is the standard; in other

18 words, what on earth does "due diligence" mean in this

19 context. There was a certain amount of huffing and

20 puffing about that, but in the end the form of words

21 that he adopted in his report was -- or it seemed to

22 be -- generally accepted to be a reasonable definition

23 of what due diligence meant in those circumstances. And

24 that is at 131 of his report, RNI-601-014.

25 So far as the Murder Investigation Manual is

 

 

44


1 concerned, again, there was a great deal of evidential

2 coverage of this and in particular of its role, if any,

3 its place, in the specific, indeed unique, policing

4 context of Northern Ireland. And you heard from all of

5 the Senior Management Team about that, as well as from

6 Mr Ayling himself, he being in the position of never

7 having conducted a murder investigation in

8 Northern Ireland, the position, as you know, in the

9 evidence which was also Mr Port's position,

10 Mr Provoost's position at the time when they began their

11 work.

12 As I have already told you, it was, of course,

13 Mr Kinkaid who gave the very helpful evidence in the

14 statement and, again, in addressing you in his evidence

15 about the more general policing context before the

16 murder and, indeed, what happened after the murder, when

17 eventually he came to head Special Branch.

18 Now, so far as the Murder Investigation Manual is

19 concerned, again, you are familiar with the issues.

20 There was a certain amount of evidence as to whether or

21 not it had formally been adopted, as to whether or not

22 it was applicable, sufficiently adaptable or flexible in

23 the context of a terrorist murder investigation, which

24 all of those involved at the time believe they were

25 dealing with. And, indeed, you heard evidence not only

 

 

45


1 from those individuals, but from Sir Ronnie Flanagan,

2 you will remember, about his understanding of the role

3 of the manual in the investigation that was taking

4 place.

5 In crude terms, the suggestion made in relation to

6 Mr Ayling's report is that it has been too much of a box

7 ticking exercise by reference in an inflexible way to

8 the specific and detailed provisions of the manual, and

9 that's a matter you will have to consider. Has he taken

10 sufficient account of the particular circumstances of

11 the limitations of the manual and of its application on

12 the ground in the context of this investigation?

13 And you will have noted that during his evidence

14 there were occasions on which he did make concessions

15 and which he made it clear that he accepted that X,

16 which might have been possible in England, was not

17 possible, or not possible in the same way, in

18 Northern Ireland, and in particular this is significant,

19 you may think, in the context of the validation of

20 intelligence.

21 Now, so far as the topics are concerned, I'm just

22 going to remind you of some of the main contentions and

23 of the questions that they raise for you, although not

24 least because this was the most recent of all of the

25 evidence that you heard, I'm sure you have it all in

 

 

46


1 mind.

2 The first, victimology; even using that word, of

3 course, is to get into what became an area of some

4 controversy in the course of Mr Provoost's evidence.

5 Victimology is the term used in your letter and I'm

6 going to stick with it; the investigation of the

7 background and the circumstances of the victim, the

8 criticism being that it wasn't sufficiently explored in

9 this case. Again, that's a gross oversimplification,

10 but that is the nub of it.

11 Now, the senior officers gave evidence to you about

12 the constraints as they saw them of pursuing enquiries

13 in the way that would be usual or normal and in

14 accordance with the manual in England, and you will

15 remember Mr Humphreys from the Kent force gave evidence

16 about that and about his experience in England.

17 The first was the vital importance, which they

18 stressed to you, of not losing, not doing anything in

19 fact to undermine the support of the family at the

20 crucial time. And Mr Kinkaid said, in relation to his

21 position on this:

22 "The murder involved the use of a sophisticated

23 explosive device. It was a terrorist murder that

24 occurred in Northern Ireland."

25 Then when he gave his evidence to you, he said:

 

 

47


1 "Early indications did not suggest that I should

2 start an in-depth assessment of her lifestyle, including

3 researching her telephone, diary, office correspondence,

4 financial transactions and even any private

5 relationships she may have had."

6 Thus, in that sentence identifying the various areas

7 which in Mr Ayling's report he says should have been

8 given more detailed treatment and investigation.

9 Mr Port told you:

10 "We did not close our eyes to other possibilities,

11 other than a terrorist attack, but we also had to be

12 sensible, logical and focused on our investigations."

13 So their position to you, sir, was that what they

14 did was necessary, relevant, proportionate and

15 appropriate.

16 So far as Mr Ayling and his evidence is concerned,

17 he, as I say, seemed at least to acknowledge the

18 limitations under which they were operating, not just

19 because of the family, but also because of the clear

20 pointers to a terrorist attack, the nature of the

21 device, the circumstances, Rosemary Nelson, her position

22 in Northern Ireland, and all of the other matters.

23 But he maintained that more could and, as he

24 explained to you, should have been done. And here, as

25 in the other areas of particular focus, the phrase that

 

 

48


1 came up again and again and again was "the need to keep

2 an open mind". If you remember, something stressed in

3 the manual, but also stressed by the Kent officers in

4 their evidence to you and, they explained, stressed in

5 their early discussions and engagement with the Murder

6 Investigation Team in those first view days of the

7 investigation.

8 So the question for you, therefore, sir, is whether

9 the extent of the enquiries about Rosemary Nelson, about

10 her personal life, her relationships, should have been

11 taken further than they were. And in assessing that,

12 you will, of course, bear in mind all of the contextual

13 and other points that the Murder Investigation Team have

14 drawn to your attention, and also, of course, consider

15 in the process the question of what difference it might

16 have made; in other words, whether Mr Ayling or anybody

17 else has been able to say to you, well, of course, if

18 in, accordance with a proper investigation run with due

19 diligence, X had been done, then the result would have

20 been Y.

21 Sir, the next topic is the early intelligence, and

22 as I say, there is a theme developing here because the

23 suggestion is that an insufficiently broad focus was

24 maintained, that the early intelligence, having pointed

25 in a particular direction, an insufficient attempt was

 

 

49


1 made to be sure, first of all, that it was the right

2 direction and, in doing that, to check all the other

3 possible directions and all the other relevant

4 intelligence.

5 So, so far as Mr Ayling is concerned, a useful

6 summary of the position is at his report, 9.9.1,

7 RNI-609-025:

8 "Following the SIO's decision not to pursue an early

9 arrest strategy, the need to validate this intelligence

10 was paramount. This was particularly the case, given

11 the decision to mount a protracted and

12 resource-intensive, proactive operation against them."

13 So that the nub of the criticism here is not just in

14 relation to those early weeks and months, but rather

15 that at the slightly later stage, before the decision to

16 launch the covert operations, which became known

17 collectively as Operation George, there should have been

18 a more rigorous attempt to test, to validate, as he put

19 it, the intelligence.

20 Now, what he suggested in his report is that this

21 early intelligence was one of the three main pillars,

22 I think was the word he used, on which the focus on the

23 core suspects depended, and so it was significant in his

24 view in that way.

25 Now, you will want to consider, therefore, what the

 

 

50


1 overall picture was, i.e. the picture of the overall

2 intelligence disclosed to you, presented to the Murder

3 Investigation Team. Was, in the light of that, their

4 reaction to the early intelligence and their reliance

5 upon it justified? Did they do what was reasonable in

6 the circumstances to test it, to validate the

7 intelligence, bearing in mind all of the constraints

8 that you have heard about?

9 Now, those were matters which were explored in the

10 open evidence, but also, for obvious reasons, in the

11 closed session, and I'm obviously not going into enter

12 into that.

13 So far as what remained possible in terms of

14 validation, may I remind you of the following? First,

15 it was, according to Mr Humphreys -- and that's his

16 evidence at Day 101, page 47 -- possible to go about the

17 validation of intelligence even in this context, and

18 albeit in a more limited way than would have been

19 possible in Northern Ireland.

20 Note also the Terms of Reference of Mr Port, not

21 obviously applicable at the very outset, but in place

22 within three weeks of the murder and, on their face at

23 any rate, granting him unfettered access to all

24 intelligence held by the RUC.

25 Now, sir, just pausing there, as soon as you look at

 

 

51


1 this question of early intelligence and the question of

2 validation, clearly we are looking not only at the issue

3 of due diligence, but also at the evidence we have

4 heard, which we have put under the heading of

5 obstruction, because clearly it is at that point that

6 the issues raised about missing intelligence, about why

7 material was not disclosed by Special Branch, if it was

8 not disclosed, all of those questions come up. And

9 there is plainly an overlap here.

10 If, for example, you were to conclude that the

11 Murder Investigation Team did all they reasonably could

12 have done in this area but there was a block put in

13 their way, then that would be a very significant matter,

14 because on the face of it, it would simply not be right

15 to hold the Murder Investigation Team responsible for

16 a lack of due diligence if what they were dealing with

17 was some form of obstruction on the part of those who

18 were the owners of the relevant material.

19 Now, I want to return to this issue of the

20 relationship between the investigation team and

21 Special Branch later, in fact in the last topic, but it

22 is an area where one has to have, in my submission, the

23 totality of the evidence about what was going on in the

24 investigation in mind; the Special Branch as well as the

25 investigation team.

 

 

52


1 Now, so far as the question of the early

2 intelligence is concerned, one final reminder, if I may,

3 which is that it is not, although it bears this title

4 "early intelligence" -- the criticism made by Mr Ayling

5 was not just in relation to those early days and weeks,

6 but rather as the investigation proceeded before

7 Operation George, and then when Operation George had

8 been underway. If you remember, he mentioned various

9 points, using, as I remember it, the traffic light

10 analogy, at which there should have been a standing

11 back, a re-evaluation, a reconsideration of the material

12 to see whether the original focus was still justified.

13 Now, closely related to that is the third topic of

14 the hypothesis, and the point here, again, very simply,

15 probably in an oversimplified way, is that Mr Ayling

16 says that on the basis of the material he has seen --

17 and that, as you remember, is one of the limits on his

18 work, that he proceeded on the basis of the material --

19 he wasn't able, as he would have been in a 28-day or

20 more normal review, to question the officers for

21 himself. On the basis of what he had seen, the record,

22 as it were, there was one hypothesis, it remained the

23 same and there was no recorded challenge testing of it

24 and certainly no alternatives explored.

25 Now, so far as that is concerned, what the evidence,

 

 

53


1 both in statement form and in the hearings, produced

2 from the Senior Management Team was an account by them

3 of what was actually happening, they said, during the

4 course of the investigation, something perhaps not fully

5 or well recorded, but in fact taking place. And

6 Mr Kinkaid, for example, at Day 105, page 62, told you

7 about the circumstances in which various alternative

8 hypotheses were discussed and how he sat down with key

9 members of his team to do so.

10 He didn't believe it to be good practice, you

11 remember, to record, as he put it, every musing, because

12 of potential problems in any trial. But evidence of

13 a very similar kind was given by M540, his deputy, in

14 answer to a question from the Panel. He said:

15 "I don't think we actually sat down and had that

16 type of conversation."

17 In other words, a conversation suggested to him in

18 which he should have apparently asked himself, "Is it

19 possible that we are completely on the wrong path", the

20 testing sort of conversation:

21 "I don't think we actually sat down and had that

22 type of conversation, but Mr Port would have said, you

23 know, where exactly are we at? What have we got? And

24 we would have looked at what we had not only in respect

25 of these core individuals, but there were a number of

 

 

54


1 other people that were coming into the fringe of things

2 and he would have been eager to say can we develop this

3 from another angle. Is there somebody else we should be

4 looking at. And we took steps to check out other means

5 of intelligence that was available to you through

6 Special Branch."

7 And so the question for you, drawing not on some

8 conveniently recorded set of records, but on that

9 evidence from the individuals with responsibility, is

10 whether this is no more than a record-keeping criticism

11 without substance or whether there is something more

12 fundamental; in other words, whether the lack of

13 record-keeping actually matters.

14 And Mr Ayling, if you remember, described to you

15 what his view on that was: that if you didn't have

16 a clear record of the consideration and, it may be, the

17 dismissal of various possibilities, there was a danger

18 of a lack of focus, a danger of some sort of

19 inconsistent or confused efforts, a lack of grip, in

20 short.

21 The next topic, which came as, as it were, a

22 subtopic under the hypothesis, which I will deal with

23 very briefly, was claim of responsibility. Here, you

24 remember, the suggestion made by Mr Ayling was that this

25 was one of the three main pillars in relation to the

 

 

55


1 core suspects, that over-reliance was placed on it, in

2 short.

3 Mr Kinkaid said in his evidence on Day 106, page 84

4 and following, that Mr Ayling was massively overstating

5 this; he was massively overestimating the importance, in

6 fact, placed upon the call of responsibility by the SMT,

7 and he told you that they were well aware of the limited

8 reliance that could properly be placed upon the

9 particular call. I don't want to say any more about

10 that.

11 The next sub-issue in your letter related to similar

12 devices and, again, the various witnesses. In the lead

13 on this on the SMT side was M540, if you remember,

14 because he was responsible for this part of the

15 investigation, dealt with it in their evidence, and,

16 again, the question was whether, as Mr Ayling suggested,

17 indicators pointing another way and undermining the

18 original expression of opinion by Dr Murray should have

19 been accorded more weight with the result that the focus

20 would either have changed or gone in another direction

21 or, at the very least, broadened out somewhat from the

22 same core suspect of whom, if you remember, one, at all

23 relevant times, was the suspected bomb maker. And

24 clearly this particular part of the evidence related to

25 him.

 

 

56


1 So far as the specific contraindications are

2 concerned, if you remember, there was the

3 Maghaberry Prison device about which a great deal of

4 evidence was given, whether or not it was appropriately

5 included in the list. M540 gave evidence about that,

6 and Mr Ayling dealt with it in his report at 4.15.

7 But then, last of all under this heading the

8 evidence, or rather the report and the evidence to you

9 of Mr Todd. He came in later. He was not provided, you

10 will recall, with any of the actual components. He was

11 doing, as it were, a review. And the position of M540

12 in particular was that that was an important limit on

13 the weight that could be attached to his opinion, which

14 on the face of it, at least, appeared to run contrary to

15 that expressed to the team by Dr Murray.

16 Now, that led to the question of whether Mr Todd's

17 opinion, limited though it might have been, should

18 either have been expanded by, as it were, giving him

19 more to look at, or at the very least should have been

20 put to Dr Murray so as to allow Dr Murray to reflect on

21 his views and perhaps to reconsider them.

22 The essence of the opinion put forward to you by

23 Mr Ayling is that in this, as in the other related

24 areas, not enough was done in short to challenge the

25 original hypothesis, to test it and to face up to

 

 

57


1 whatever evidence emerged, which seemed to cast some

2 doubt upon it.

3 So far as the next topic, which is "Other suspects",

4 again, just in going through the topics I have, you will

5 see already the very, very close link between them and

6 this one. This is an area which is dealt with in

7 Chapter 9 of the Ayling Report, but there is an obvious

8 difficulty with me getting into the detail of it now.

9 The questions are who were considered to be key

10 suspects; suspects, whichever way you want to put it.

11 Was there, as the MIT suggested, an effective way of

12 addressing that question, a structure in place to

13 analyse suspects, as it were, to process them within the

14 investigation, or was there, as Mr Ayling suggested, an

15 absence of what there should have been in terms of

16 documented criteria for tracing, implicating and, as

17 appropriate, eliminating them, thus leading again to

18 some confusion.

19 Now, this may also, you may think, be an area where

20 one of the issues to be considered is whether this is

21 mere form-filling, as with the criticism made about

22 recording hypotheses. Does it amount to anything more

23 than a failure to make the right records, or is there

24 something in the opinion advanced by Mr Ayling, which is

25 that if you don't have a system of this kind, then you

 

 

58


1 sow the seeds for confusion. And on his examination of

2 the records, that is what there may well have been.

3 There was certainly in his view a concentration on

4 a particular and the original group of core suspects to

5 the exclusion of other possibilities.

6 So far as the final topic, Operation George, is

7 concerned, it is not a single operation, it is simply

8 a convenient name and it would be impossible to do

9 justice to the various different aspects of it. And in

10 your letter of 12 January, you made it clear that you

11 were interested in it not in the round or in general,

12 but, as it was put, with particular reference to

13 resources. And, again, the point here, made in the

14 Ayling Report, is that the focus of the Murder

15 Investigation Team's attention shifted so that the

16 operations became dominant in their work with an adverse

17 impact on the rather more straightforward or traditional

18 business of investigating Rosemary Nelson's murder. In

19 a sense, therefore, that the success of Operation

20 George, to which full tribute has been paid by Mr Ayling

21 in his report, as you remember, led to the operation, as

22 it were, taking over and that, as matters proceeded, as

23 it were, it fed on itself and came to dominate, to the

24 detriment of the work to find Rosemary Nelson's

25 murderers.

 

 

59


1 Now, Mr Ayling's report on this -- I think it is

2 Chapter 10 -- also focuses on what he regards as the

3 failure of the team to take full account of what was,

4 and more importantly what wasn't, emerging from all the

5 covertly recorded tapes, namely anything that pointed

6 convincingly at least to the involvement in the murder

7 of the key suspects. And you have heard evidence from

8 all of those involved in that and, as I have already

9 indicated, this feeds into his point that there should

10 have been, prompted by what was going on in Operation

11 George, a re-evaluation, a reconsideration of the

12 approach.

13 Now, that is an opinion firmly rebuffed by the

14 Murder Investigation Team, who told you first that it

15 did not dominate in the way that had been suggested,

16 that, as M540 explained, the traditional investigation

17 continued and continued with vigour, and was not in any

18 way undermined or reduced in importance by what was

19 going on in fact in England.

20 Secondly, in relation to the re-evaluation and the

21 question of whether there should have been, as it were,

22 pause for reconsideration, the evidence there was, as

23 I have already mentioned, that that was a process which

24 continued throughout the investigation, in the meetings

25 and discussions about which those officers gave

 

 

60


1 evidence.

2 There was also some dispute on the part of the

3 Senior Management Team, you will remember, about

4 Mr Ayling's dismissal of what had been said and recorded

5 covertly by the core suspects during the course of

6 Operation George. They believed that there were indeed

7 some comments, some extracts from the transcript, which

8 supported their approach and they said as much in

9 dealing with questions from counsel during their

10 evidence. And they were in particular keen to stress

11 that the absence of direct admissions -- remember,

12 Mr Ayling's point was the contrast between that and

13 admissions in relation to other very serious offences --

14 had been overstressed by Mr Ayling.

15 Mr Port, for example, said in his statement at

16 paragraph 114, that that, the failure to make admissions

17 about this case, was only to be expected, given the

18 nature of the offence and the surrounding circumstances;

19 in other words, that it had so quickly become so high

20 profile and, therefore, was not something about which

21 there would have been any boasting, by contrast with the

22 other offences.

23 Now, that is all I wanted to say about Operation

24 George. In your letter you also indicated that the

25 opinions offered by Mr Ayling in relation to management

 

 

61


1 would be taken into account by you, so far as it related

2 to the particular areas. And that is something dealt

3 with by Mr Ayling, just for the record, as it were, at

4 14.16.1 of his report, where he refers to the areas,

5 including three areas which we have been looking at,

6 where he believes that there was, as it were, a failure

7 of management.

8 Sir, that is all I wanted to say about due diligence

9 and that means that at a quarter to one on Day 130, we

10 reach the last substantive topic of these closing

11 submissions.

12 That is what we have called "Obstruction" and you

13 have written submissions on it from the Murder

14 Investigation Team, the PSNI, the Security Service,

15 Sir Ronnie Flanagan and the family. And that is perhaps

16 not surprising because, as I was indicating earlier in

17 relation to the investigation and the evidence on

18 intelligence, this is a topic that has, as it were,

19 brought together the evidence of witnesses from various

20 organisations, from various parts of the Inquiry, if I

21 can put it that way. And that is in part also because

22 the focus of exploration has very much been on

23 intelligence.

24 I have mentioned the incident recounted by P614, but

25 that is, if I may say so, an exception to the general

 

 

62


1 thrust of your investigations under this heading, which

2 has been in the intelligence field.

3 Of course, what you have heard from the Murder

4 Investigation Team's witnesses is that intelligence

5 played a major role in the investigation from the start,

6 and you will remember a number of their internal notes

7 which indicated that that was, as it were, the way

8 forward. And all of that became particularly important

9 when the decision was taken not to make early arrests

10 and, as it were, the course of the investigation

11 thereafter was set.

12 So there are obvious overlaps between this issue and

13 Chapter 9, in which it is treated by us, and Part 2,

14 Chapter 5, and due diligence, the chapter we have just

15 been looking at, Chapter 8. I would like to look at the

16 index of Chapter 9, please (displayed).

17 Given the comments I have made, you won't be

18 surprised to see that the first subheading, as it were,

19 there and the first substantive section after the

20 introduction focuses on the relationship between

21 Special Branch and CID within the RUC.

22 It is only after that subsection or section that

23 specific topics about which you have heard evidence are

24 addressed: First of all, the Murder Investigation Team

25 and Special Branch and in particular, of course, the

 

 

63


1 evidence there of Mr Kinkaid on the one hand and B629 on

2 the other, Operation Fagotto -- and I should make it

3 abundantly clear that this Chapter deals with the events

4 after the murder.

5 There is a substantial section within Chapter 5

6 which addresses the substance of Operation Fagotto,

7 pages 325 to 346, because, of course, you have heard

8 evidence in open and closed session about the events,

9 and in particular the events on the night of the murder.

10 I'm not going to deal, I should say, with the substance

11 of that in my oral submissions.

12 This section, therefore, concerns the Murder

13 Investigation Team's investigation of that operation:

14 The corridor comment, you will remember, the impact of

15 Mr Port's arrival on the scene, his Terms of Reference,

16 the question of access to intelligence -- that's

17 a general matter -- and then what happened in practice,

18 the dissemination. And the next is to do with the

19 Murder Investigation Team's understanding of the way it

20 works.

21 Continuing the page to the next page of the index,

22 please (displayed), now, from this section at the top of

23 the page, 9.12, what is being dealt with here is

24 a series, in a sense, of rubbing points, if I can put it

25 that way. You will remember the failure to warn of the

 

 

64


1 arrests for that Elizabeth O'Neill murder was a rubbing

2 point. So also were other incidents, including the

3 corridor comments, the demand for levels of

4 investigation into Operation Fagotto, the examination of

5 the surveillance vehicles, et cetera.

6 But then from 9.15 we address the very complicated

7 question of whether or not intelligence was passed on,

8 and in that connection there are more charts, which I

9 will show you in due course, which I hope will help you

10 with various witnesses' accounts or explanations of

11 whether or not material was passed on and, if so, how.

12 Then further rubbing points: the telephone records,

13 the request for CHIS identities and the related topic of

14 the leaked articles, the request for a file. And then

15 an overall summary. And note, please, that there is

16 also a treatment in this Chapter of the MoD, as there

17 had, indeed, been earlier on the previous page a section

18 on the Security Service, because, of course, your Terms

19 of Reference require you to consider these matters

20 looking at all the various agencies.

21 So, sir, it is of itself a very substantial topic.

22 Can I just say something first about the historical

23 relationship. You have heard a good deal about it, and

24 one of the great advantages that you have is that you

25 have, in the person of Mr Kinkaid, someone who was in

 

 

65


1 the force, not in Special Branch, but who later and

2 after Rosemary Nelson's murder came to be, as it were,

3 in charge of Special Branch and, in that capacity, to

4 make significant changes in, I think, 2003, it was, and

5 thereafter.

6 So quite apart from his evidence about the

7 particular tensions and difficulties in the murder

8 investigation, you are able to see from his evidence

9 this much more general perspective, it has to be said,

10 balanced by the evidence of a large number of senior

11 Special Branch or former Special Branch officers,

12 including Sir Ronnie, of course, who were able to speak

13 from their own experience of that.

14 In addition, you have the written material. And I'm

15 going to mention, for example, the Warner Report, in

16 which individuals have come from outside

17 Northern Ireland, but with expertise in the field of

18 intelligence and expressed their own views about these

19 matters and the nature of the relationship.

20 In Mr Kinkaid's appendix B, he says this:

21 "The relationship between Special Branch and CID was

22 at times difficult. Special Branch officers performed

23 in Northern Ireland the national security role performed

24 by MI5 in Great Britain. Dissemination of intelligence

25 to senior investigators was decided by Special Branch

 

 

66


1 officers, few of whom had any investigative experience.

2 It is now clear that a factor in their decision was the

3 protection of sources. Surveillance and eavesdropping

4 was largely for intelligence, not evidential purposes,

5 and no system existed for carrying out an annual risk

6 audit of CHIS.

7 "As senior investigating officers were not developed

8 vetted, there were limitations on the type of material

9 they could see. The advice of senior CID officers was

10 rarely sought in advance of proactive operations run by

11 Special Branch."

12 Now, that is general evidence based on his

13 considerable experience of, as it were, the other side

14 of the force, but you may with well think that it has

15 particular application in the events as they unfolded

16 during the Rosemary Nelson murder investigation. And

17 one of the themes running through the evidence is that

18 the tensions that he describes there, vividly, had their

19 origin in Special Branch's concern for source

20 protection.

21 Now, the other important thing to mention in terms

22 of background which came out, for example, from

23 Mr Port's evidence, is the important distinction between

24 the way things were run in Northern Ireland at this time

25 and the situation as it pertained in England, for

 

 

67


1 example, where his experience lay.

2 The final point on this: you now have evidence which

3 suggests persuasively, you may think, that within

4 Special Branch and specifically as between the regions

5 of Special Branch, there were variations and that, you

6 may think with reference to the South Region, was

7 another important feature in the evidence and, indeed,

8 in the difficulties that arose between the Murder

9 Investigation Team on the one hand and Special Branch

10 during the investigation.

11 Now, just turning to some specific topics, the first

12 I would like to look at is the early relationship --

13 I would like to just carry on for a little bit longer.

14 THE CHAIRMAN: You would?

15 MR PHILLIPS: Yes.

16 THE CHAIRMAN: Certainly.

17 MR PHILLIPS: Which is the early relationship with

18 Special Branch, the first requests made of

19 Special Branch by Mr Kinkaid.

20 They were, if you remember, formal. They were

21 recorded in writing and they were, you may think,

22 robust -- I think in fact that was an expression he used

23 himself -- and they were a direct result of his own

24 earlier experience of dealing with Special Branch.

25 That's Mr Kinkaid, Day 105, page 93.

 

 

68


1 What you heard in the evidence was a focus in

2 considering the question of the nature of the

3 relationship, the tensions that arose, a particular

4 focus on Mr Kinkaid and on the difficulties, as

5 Special Branch saw it, created by his robust, more

6 formal approach to obtaining information, but also

7 assistance, from Special Branch. And one of the

8 questions I would like to look at in a little more

9 detail after lunch is the extent to which that

10 difficulty, the difficulty between Mr Kinkaid and the

11 Special Branch officers, caused any damage or material

12 problem in the course of the investigation.

13 Would that be a convenient moment?

14 THE CHAIRMAN: Certainly. 2 o'clock.

15 (1.00 pm)

16 (The short adjournment)

17 (2.00 pm)

18 THE CHAIRMAN: Yes, Mr Phillips?

19 MR PHILLIPS: Sir, I was talking about Mr Kinkaid and the

20 question -- the broader question perhaps -- of the

21 relationship between Special Branch and the Murder

22 Investigation Team. And there are, you may think, in

23 the evidence these two obviously closely related but

24 distinct themes, the first very much focusing on

25 individuals, on personalities, and the second, broader,

 

 

69


1 question of what some at least described as a clash of

2 cultures between the two organisations, the two teams,

3 however you want to put it.

4 So far as Mr Kinkaid is concerned, first of all, he

5 agreed in his evidence that he had a healthy scepticism

6 in relation to Special Branch, and Mr Port remarked to

7 you in his statement that the Head of South Region,

8 B629, and Mr Kinkaid had:

9 "... no professional respect for each other."

10 But as you will recall, in the evidence these two

11 individuals -- and they weren't alone -- went to some

12 lengths to persuade you that in fact in general all was

13 well, and specifically that the contemporaneous accounts

14 of the relationship were incorrect, exaggerated and in

15 general wrong.

16 Now, I would like to look at one of those, which is

17 RNI-532-061 (displayed), and this is the note prepared

18 in May 1999 by S188, the visiting Security Service

19 officer, who came, as you remember, at the request,

20 I think, of Mr Port -- it says so, indeed, under the

21 heading "Background" -- and met both sides, if I can put

22 it that way, and recorded at the time his impressions.

23 And this page gives us enough to go on at 3a:

24 "The three key areas of concern, emerged from these

25 discussions: (a) a high degree of personal antagonism

 

 

70


1 and mistrust between RUC Special Branch, particularly

2 South Region, and the investigation team."

3 Now, he explained to you -- and it is set out later

4 in this note, as you remember -- that he had interviews

5 or meetings with those two individuals, Mr Kinkaid on

6 the one hand and B629 on the other, and that the

7 antagonism was mutual and equal.

8 This, as it turned out in the evidence, was one of

9 a number of occasions on which Security Service officers

10 made contemporaneous notes of complaints, of criticisms,

11 made by Special Branch of the Murder Investigation Team,

12 in this case also, as it were, the other way round. And

13 yet in the evidence of the individuals, whose comments

14 had been recorded and whose attitudes had been

15 described, they insisted to you that the accounts were

16 overblown.

17 Now, whether you are considering the evidence of

18 relatively lowly individuals, if I can put it that way,

19 in a quite different type of case, or whether you are

20 considering the evidence of senior police officers, as

21 you have been in this case, the basic principles, in my

22 submission, remain the same and they are very, very

23 obvious. If there is a contemporaneous note of what was

24 said or of attitudes expressed, made, which shows you

25 what appears to be the case, then unless there is reason

 

 

71


1 to doubt the truth of what was written or to doubt or to

2 call into question the motivation of the writer, you are

3 safest with the notes.

4 Now, in this case the question you will ask

5 yourselves is whether there was any motivation on the

6 part of the various Security Service officers, in this

7 case S188, to distort, overplay or exaggerate what they

8 recorded and observed.

9 You will note in this, as in all other examples,

10 that there are no contemporaneous notes by the persons

11 whose views are recorded. In other words, B629 wasn't

12 able to point to his own notes of the same meetings on

13 this or, indeed, any other occasion and nor, in this

14 particular case, was Mr Kinkaid.

15 You will remember in dealing with this, at one point

16 in his evidence, B542, I think it was, made a comment

17 about the maker of these notes: that he was very junior.

18 That, if I may say so, is nothing to the point. The

19 question is, is there evidence before you to suggest

20 that these were in any way other than what he, S188,

21 told you that they were, namely an accurate and

22 contemporaneous record of what he had observed.

23 Now, at this point I would like to mention a further

24 contemporaneous note, and this was in RNI-532-076

25 (displayed), another Security Service document, as

 

 

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1 I say. And this records a meeting at Thames House later

2 in the history, at the end of May. Mr Port is present,

3 and if we turn the page, you will see, I think, that --

4 it is either on this page or the previous page, I hope

5 very much -- can we go back to RNI-532-075, please?

6 RNI-532-077? Can we try that, please? And RNI-532-076

7 (displayed)? Yes, thank you very much.

8 In the third paragraph, Mr Port is described there

9 as recording his experience so far of dealing with the

10 RUC as:

11 "... wading through treacle while treading on

12 eggshells."

13 Now, that, you will remember, was not a description

14 that Mr Port rejected, far from it. And he didn't

15 attempt to suggest to you that it was wrong or wide of

16 the mark. And the same is true, you will remember, when

17 Mr Port and I were looking together at the report of

18 S188, the same report we looked at just a little while

19 ago. He didn't take issue with its accuracy and with

20 the problems that it sets out so clearly.

21 So, so far as that is concerned, you may think,

22 therefore, that, with hindsight, the very real

23 antagonism and tensions have been played down in the

24 evidence of the relevant witnesses.

25 Now, so far as the rubbing points are concerned, can

 

 

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1 I just remind you of a few of them? The first occurred

2 in relation to Operation Fagotto and in particular to

3 the investigation of it. Remember that Mr Kinkaid took

4 exception to the fact that it was some days after the

5 murder that he was informed about it, I think on

6 19 March.

7 Some explanation of that was given to you, and at

8 this distance in time the delay of just a few days may

9 seem not so significant. What you may think is more

10 important about this, about the interviews that followed

11 and most of all about the demand for the forensic

12 examination of the vehicles, is what the impact was on

13 the various Special Branch officers. By that, of

14 course, I mean not just the surveillance officers who

15 were involved in the investigation, who perhaps

16 understandably felt under some pressure in relation to

17 it, but by the more senior officers, including B508,

18 who, if you remember, was present at the interview and

19 whose behaviour during the investigation was described

20 by Mr Port in a meeting with the Chief Constable as

21 "obstructive".

22 Now, the issue, as Mr Port saw it, you will

23 remember, was about managing the more junior officers.

24 He looked to the senior Special Branch officers to

25 assist in the sense of assisting the investigation to

 

 

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1 deal with a difficult and delicate investigation of this

2 undercover operation. B508 told you, you will remember,

3 that Special Branch felt under suspicion and that the

4 Murder Investigation Team was not sufficiently

5 understanding of their position.

6 The reason it is significant is perhaps because of

7 its longer term impact on the relations, rather than on

8 the importance of any individual element of the history.

9 Another rubbing point occurred very early on with

10 the corridor comment. You will remember conflicting

11 evidence about that from Mr Kinkaid on the one hand and

12 B629, as to the circumstances in which the matter arose

13 between them, who said what in the meeting or discussion

14 they had about it.

15 However, again, although apparently a small

16 incident, which might be dismissed as a storm in a tea

17 cup, again, it appears to have had a longer term impact.

18 Although B629 told you in his evidence that it did not

19 have a lasting or long lasting effect on the

20 relationship, B503, another senior officer, confirmed in

21 his evidence, Day 94/146, that it was in his mind at

22 a latter stage when he was responding to the request for

23 telephone records. And I will come to that topic in

24 a moment.

25 Mr Port described the impact on some Special Branch

 

 

75


1 officers of his arrival on the scene and his involvement

2 in the investigation in a striking phrase, when he said

3 to me at page 64 on Day 113, that some members of

4 Special Branch came to consider him to be "the devil

5 incarnate".

6 B567 was a little lower key in his description when

7 he said that Special Branch was more guarded with the

8 team before Mr Port's arrival precisely because, if you

9 remember, of the key point, that only he had the

10 necessary, the relevant, level of vetting at that stage.

11 Now, in the mixture, if I can put it that way, was,

12 of course, Mr Port's terms of reference, and both

13 Sir Ronnie and Mr Port himself have given evidence about

14 their origin. It appears that Mr Port was very much the

15 author and they were accepted as drafted.

16 The evidence varied on the extent to which their

17 potential impact on relations was appreciated, was

18 understood, early on and, indeed, you have heard various

19 different interpretations of them, in other words. And

20 in particular two aspects: first, whether they were

21 personal -- in other words, whether they afforded access

22 only to Mr Port as opposed to the Murder Investigation

23 Team as a whole -- and secondly, whether there should be

24 implied into them certain qualifying terms. And that

25 appeared to be the approach, for example, of B542, who

 

 

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1 certainly seemed to approach the matter on the basis

2 that they did not in fact give carte blanche; rather

3 that specific requests, for example, for CHIS

4 identities, had to be justified on a case-by-case basis,

5 relevance, necessary, proportionality. And you remember

6 those were the tests that he used.

7 It is, of course, easy with hindsight to look at

8 this situation and see that the terms of reference made

9 it almost inevitable that the two organisations would

10 come into conflict, not least because, as a number of

11 witnesses said to you, they made it likely, if not

12 inevitable, that Special Branch would be, to use the

13 expression which was used, "taken out of their comfort

14 zone", taken into new territory, because this approach,

15 although perhaps more common in England, was completely

16 new, unprecedented, in Northern Ireland.

17 Now, sir, in relation to a question posed, namely

18 whether this was something that should have occurred to

19 Sir Ronnie, Mr Port, indeed, to anyone else involved in

20 the matter, at an earlier stage, as I say, the first

21 thing to remember is hindsight; we are now looking back,

22 we see all the evidence, it is all crystal clear to us.

23 The second point, however, is that we are looking

24 here not at due diligence, we are not looking at whether

25 Mr Port's dealings with his terms of reference met that

 

 

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1 standard. We are looking at least principally at issues

2 of obstruction, and so that is the context in which that

3 question arises. And at least in the ordinary use of

4 that term, you are looking for something, as it were,

5 deliberate rather than otherwise.

6 Now, so far as the big themes of this part of the

7 case are concerned -- in other words, putting the

8 rubbing points to one side for the moment -- they

9 concern the dissemination of the question of affording

10 access to intelligence. You will remember at the very

11 outset the Kent officers proposed a system, and a number

12 of people have told you in their evidence what

13 a thoroughly excellent system that was. Sadly, however,

14 it was never put into use at any point, and matters were

15 overtaken by principally the arrival of Mr Port, who was

16 vetted and, of course, who had his own trump card, as he

17 may have thought, in the form of paragraph 7 of the

18 terms of reference.

19 So looking at the history of dissemination, the

20 passing on of intelligence, before considering the very

21 complicated question of whether some intelligence was

22 not passed on, can I just remind you of the approach

23 that Mr Kinkaid took -- I mentioned it at the outset --

24 which was to set out his demands in this formal way,

25 rather than relying on the corridor conversations that

 

 

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1 M540 and others talked about. And, therefore, taking

2 a firm and robust line with Special Branch, which

3 he believed was appropriate in a case where allegations

4 of collusion had been made.

5 Now, the issue that was raised with all of these

6 witnesses was whether there were downsides of that way

7 of doing things, in that the process was self-limiting.

8 If you are active in seeking from Special Branch

9 intelligence in particular categories, then do you run

10 the risk of unintentionally perhaps limiting the

11 material that comes back? And that, of course, is

12 especially important in the context we are looking at,

13 where the Murder Investigation Team simply did not know

14 what the range of intelligence that might have been

15 available was.

16 So they did not know, therefore, to what extent, to

17 what material extent, they might, by the ambit of their

18 own requests, be limiting what came back to them.

19 It has to be said that the Special Branch officers,

20 particularly the senior officers, were at pains to tell

21 you that their instructions, their orders from the

22 Chief Constable, from above, were to provide what was

23 necessary, what was relevant to the murder

24 investigation; not to take a narrow view of the matter,

25 but to do everything they could. And they stressed to

 

 

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1 you that they gave more cooperation, they spent more

2 time on, they gave more assistance to this investigation

3 than to any other. And support for that was given by

4 M540, if you remember, who had a great deal of

5 experience of this and of doing things in a rather

6 different way to Mr Kinkaid.

7 So the evidence is not all along one line; there is

8 a much broader range of evidence on this topic. But, of

9 course, the key to it is that point raised with a number

10 of the Special Branch witnesses, namely that it remained

11 for them, even in this case, to determine the relevance

12 of the material. So Special Branch officers who were

13 not involved with the investigation, or at least not

14 directly, were making decisions as between types of

15 intelligence based on their own judgments as to

16 relevance, judgments not formed on the basis of hands-on

17 involvement in the murder investigation.

18 To that, Mr Kinkaid added the point that these were

19 often officers who had no experience of murder

20 investigations. They had no years under their belts, as

21 it were, in CID and, therefore, they were, bluntly, not

22 well qualified to form those judgments.

23 Now, Mr Port stressed to you what a very different

24 situation this was to that which he was used to and,

25 therefore, he recognised, when he came to

 

 

80


1 Northern Ireland, that he had to use all the other

2 available options, routes, methods, he could, including

3 getting very personally involved in validation, for

4 example, because he was the only one with the relevant

5 vetting, in order to make up the gap, as it were,

6 between the situation here and the situation he was used

7 to in England.

8 Now, again by way of qualification, bear in mind,

9 please, that at all times there was, and then there

10 were, liaison officers, B546 and then B503, who,

11 certainly in the case of B567, had very close and

12 regular contact with the murder investigation, and in

13 particular you will remember the, by all accounts, very

14 effective, very good working relationship between 567

15 and M540.

16 The final point on this question of determining

17 relevance, you will remember that the same rules applied

18 to the Security Service and you will probably remember

19 in relation to that reporting on the Orange Volunteers

20 my questioning -- I think it was S224 on this and

21 essentially putting to him the question: how on earth

22 could you, with no police experience whatsoever, or

23 certainly with no experience investigating a murder,

24 come to a view as to whether or not a particular piece

25 of intelligence was relevant?

 

 

81


1 The only individuals who were capable of forming

2 that judgment were the murder investigation officers,

3 and you will remember what he said about that. He was

4 reasonably confident in his ability to form a view on

5 that and you will remember, to be fair to him, that his

6 view, which was contrary to that propounded by the Head

7 of South Region, was in due course backed up by the Head

8 of Special Branch on that particular question, B542.

9 Now, so far as the question of missing intelligence

10 or information is concerned, I would like to take first

11 Operation Shubr as an example, because it is slightly

12 less complicated than the missing intelligence topic,

13 but also because it is in a way an example of the rather

14 confused and confusing evidence from various relevant

15 individuals that you have now received.

16 The issue is simply whether the Murder Investigation

17 Team was informed about the operation: simple to state,

18 harder, however, to trace the various themes which

19 developed in the evidence.

20 I should say, sir, that Shubr, like Fagotto, is

21 dealt with, if I can put it this way, in its substantive

22 terms in Chapter 5. What we are looking at here is the

23 rather narrow question of why, as the Murder

24 Investigation Team told you, it was not disclosed,

25 because they clearly thought it of obvious and

 

 

82


1 considerable relevance that an operation which was

2 ongoing at the time of the murder, albeit not active

3 during the relevant days, should indeed have been

4 disclosed to them, and its product, so that they could

5 determine for themselves whether there was anything in

6 the surveillance which might have been of value to their

7 investigation.

8 In terms of the Special Branch evidence and in

9 summary, B567 said he was confident he discussed the

10 operation with the Murder Investigation Team, but not by

11 name. 503 specifically recalled, he said,

12 a conversation with Mr Port, I think it was, about it.

13 That's Day 94, page 85. And so did 629, and that's

14 paragraph 141 of his statement at RNI-846-654.

15 However, that's rather a good example of how

16 complicated the evidence became, because in his evidence

17 to you at Day 115, page 54, B629 accepted that he might

18 have been mistaken in thinking that Mr Provoost had been

19 viewing surveillance logs for this operation; in fact,

20 they might have been, he thought, the logs for Operation

21 Fagotto.

22 I think it is fair to say that B542 couldn't really

23 take this specific point any further.

24 So far as the Murder Investigation Team are

25 concerned, Mr Port, by way of useful summary -- Day 114,

 

 

83


1 page 53 -- said to you that he didn't know the name of

2 the operation or, much more importantly, that it was

3 ongoing at that particular time.

4 Now, sir, the reason I have taken that first, as

5 I say, is because it would have been very neat and

6 helpful to have comprehensive records on both sides of

7 what was handed over in terms of information and what

8 was received on the other side. And the fact is -- and

9 I'm not making a criticism of anybody -- that we do not.

10 And that, coupled with the possibility raised in this

11 and other contexts by the witnesses, that matters were

12 disclosed orally rather than in documents, has led to

13 a good deal of the conflicting and, at times, I have to

14 say, confusing evidence on whether material was

15 disclosed and, if so, in what form, all of which, of

16 course, is just by way of a grand precursor to the

17 question of whether it mattered, whether it was relevant

18 and then, finally, whether, if it wasn't disclosed, it

19 made a difference.

20 Now, what we have done to try and put some order

21 into this is to prepare some more charts, and I would

22 like to show you the opening page of the first -- there

23 are two -- at RNI-934-028 (displayed).

24 This explains itself. It is the first of the two

25 charts, as I say, and it concentrates on the list of

 

 

84


1 missing intelligence which was compiled by the Murder

2 Investigation Team. I think in fact it was in

3 a statement of M540.

4 What we have done in what I hope is a helpful way is

5 to give you the reference in the bundle on the left.

6 Unfortunately, as you will remember, there are in

7 a number of cases two versions of these reports in the

8 bundle, hence the dual references on the left, and in

9 a number of those cases the redactions are different.

10 Then the summary of what it says and then the relevance

11 of everybody who had anything to say about it from

12 Mr Port on the left to B503 on the right. And, as

13 I say, I hope that is a helpful way of dealing with what

14 was a very complicated picture.

15 Sir, the next chart is at RNI-934-034 (displayed),

16 where we have taken the list which, on the basis of his

17 examination, Mr Ayling put together, and there set out

18 the various comments in the evidence about that list of

19 intelligence material.

20 Now, in both of these charts you may have noticed

21 that there is a final box or column on the right-hand

22 side bearing the heading "B503 box?" This was a box

23 file of material from B503, disclosed by the PSNI to the

24 Inquiry. For whatever reason -- I don't want get into

25 the details of any of this -- it was not available and

 

 

85


1 in the bundles at the time when these witnesses were

2 questioned. It contains internal Special Branch

3 correspondence, intelligence reports and documents and

4 appears to have been compiled by B503 as part of his

5 liaison role, his role as a liaison officer with the

6 Murder Investigation Team.

7 As you know, we obtained a further statement from

8 him about the box, how it came to be put together, what

9 was in it. And in our written submission we have

10 entered into an analysis of what, if anything, it adds

11 by way of light on the question of missing intelligence.

12 And in the final column a very much simplified and

13 summarised version of some of those observations is

14 set out.

15 Now, it is right to say that within the box file

16 there are two items of intelligence, which appear on the

17 Murder Investigation Team's schedule of missing

18 intelligence and are regarded as both relevant and

19 significant. The first of those relates to the claim of

20 responsibility -- I think you probably remember that

21 with one, RNI-549-241 (displayed) -- and the second is

22 a report suggesting that Rosemary Nelson had confided in

23 someone that Colin Duffy had told her that he was

24 responsible for the murders of Kevin Conway and the two

25 police officers, and that's RNI-549-426 (displayed).

 

 

86


1 And what we have tried to do in our submissions --

2 it wasn't possible to do this, as it were, during the

3 witness evidence -- is to assess whether those documents

4 and their presence in the file changes the position and,

5 for example, lends support to the suggestion that they

6 were indeed passed on. Because one of the types of

7 document in the box file is what appears to be evidence

8 of material being passed on, of material being

9 disseminated by the liaison team, the liaison officer,

10 to the Murder Investigation Team.

11 Now, so far as explanation goes -- in other words,

12 if you get to the point of working out what was not

13 passed on, what was in fact missing, what were the

14 possible explanations for that -- again, you have heard

15 a range of suggestions ranging from slipping through the

16 cracks -- in other words, pure inadvertence -- and

17 that's B629 -- to the suggestion made by Mr Kinkaid, for

18 example, in his statement that if material was withheld,

19 it must have been because of source protection issues.

20 And that was obviously a theme taken up with various

21 witnesses in evidence.

22 That takes us to the final issue on the missing

23 intelligence front, which is was it significant, did it

24 make a difference. And here the Murder Investigation

25 Team themselves are of the broadly unanimous view that

 

 

87


1 it would not; in other words, that the material which

2 they regarded as relevant and significant simply backed

3 up the existing lines of enquiry which they had, and

4 confirmed their view of who the proper suspects were for

5 the murder. And the relevant passages there are M540 at

6 Day 107/113, Mr Kinkaid at Day 106/15, Mr Provoost,

7 Day 109 at 114, and finally, Mr Port at Day 114, page 8.

8 So far as the irrelevant missing intelligence is

9 concerned -- and that's the intelligence, broadly

10 speaking, identified by Mr Ayling and raised by counsel

11 with the various witnesses in their evidence, which

12 doesn't fit in with the Murder Investigation Team's

13 view -- that, of course, takes us back to due diligence

14 territory, because if you remember, when you, sir, and

15 I at various points suggested that their request for

16 intelligence might have been wider and they didn't see X

17 and they didn't see Y and they didn't, for example, see

18 any of the vast range of intelligence reporting on

19 Rosemary Nelson, or very little of it, that we have seen

20 and explored, what they told you was that that was not

21 relevant to them and they didn't regard the

22 investigation as in any way impaired by its

23 non-disclosure.

24 Now, that's, as I say, where the question of too

25 narrow a focus and the hypothesis met this issue of

 

 

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1 missing intelligence and possible obstruction. And,

2 again, the evidence here: Mr Kinkaid, in relation to the

3 alleged affair at Day 107/92; M540 on the same topic at

4 Day 104/43.

5 There was in Mr Port's evidence a slightly different

6 line, if you remember, again, in that passage where

7 I was asking him about the intelligence in relation to

8 Colin Duffy. And he did concede to me and accept that

9 the alleged closer relationship was material in the

10 sense that it put her at greater risk. But, sir, at the

11 end of that, he maintained that the intelligence about

12 that relationship did not advance the investigation. So

13 although he got there by a different route, he arrived

14 at the same point.

15 This takes one on plainly to the question of their

16 requests for the file on Rosemary Nelson, something that

17 came up in the evidence of a number of the witnesses.

18 In paragraph 83, first of all, of Mr Provoost's

19 statement he said that the Murder Investigation Team

20 would have wanted to know that such intelligence -- of

21 the kind we have just been talking about:

22 "... was being held by Special Branch, because that

23 would have indicated the existence of an intelligence

24 file on Mrs Nelson. The SMT would have wanted to see

25 that intelligence, because only the investigators could

 

 

89


1 determine the true relevancy of such material."

2 And that's clearly -- just pausing there -- an

3 important point. It is a point consistently made, that

4 in the end they regarded themselves as the only people

5 in the position to take judgments of that kind. And he

6 continued:

7 "For example, the belief amongst Loyalist terrorists

8 that Mrs Nelson and Colin Duffy were, or had been,

9 conducting an extramarital affair, could have been seen

10 as reinforcing the reasons why she was targeted by

11 Loyalist terrorists. But we would not have commenced on

12 a line of enquiry to explore whether or not the rumour

13 of an affair was true, because such a line of enquiry

14 would not have resulted in any leads that would have

15 taken us any closer to identifying those who had killed

16 Mrs Nelson."

17 You will see the distinction that he makes there.

18 So far as the file is concerned, in his statement to

19 you, Mr Port said that he was told there was no file on

20 Rosemary Nelson on a number of occasions, although he

21 accepted that he did see, as he put it:

22 "... a collection of documents which had been put

23 together from a number of other files fairly early on."

24 That's paragraph 39, RNI-817-390.

25 B542's response, if you remember, was that there was

 

 

90


1 no target file. Mr Port's recollection of what B542 had

2 said was that Rosemary Nelson was not a target and there

3 was no file, which may be slightly different.

4 We deal in much greater detail with the various

5 requests in disclosure terms for the Inquiry in relation

6 to a paper file on Rosemary Nelson and the varying

7 answers given in the evidence by various Special Branch

8 officers about it, and I don't want to dwell any further

9 on that now. But plainly, you may think, if Mr Port

10 asked whether there was a file on Rosemary Nelson and

11 there was indeed, as a number of Special Branch

12 witnesses told you there would have been, a paper file

13 on her, then it is very difficult to see any acceptable

14 or reasonable justification for withholding it.

15 May I pick up two further themes of the intelligence

16 which wasn't disclosed and which the Murder

17 Investigation Team officers regarded as irrelevant?

18 Perhaps the most obvious was that relating to

19 Rosemary Nelson's involvement with the GRRC.

20 Mr Kinkaid, you remember -- Day 106, page 9 -- said,

21 in summary, that he didn't need to know about that

22 because he already had enough local knowledge due to his

23 own experience and, indeed, he would have only

24 considered it relevant -- Day 106, page 10 -- if it

25 disclosed a threat to Rosemary Nelson.

 

 

91


1 Now, that, I think, is all I need say about the

2 missing intelligence. Can I go then to the telephone

3 records. Again, a complicated story. Matters appear to

4 have got very heated, and affronted communications and

5 letters were exchanged, and Mr Port spoke vividly, you

6 may think, about how the thing got blown up out of all

7 proportion when he gave evidence to you, describing it

8 as a storm in a tea cup, which perhaps neatly was also

9 the expression used by B503, one of the other

10 protagonists in the saga, who, again, described it as

11 a storm in a tea cup.

12 That the individuals involved at the time regarded

13 it as a lot more than a storm in a tea cup, you may

14 think is absolutely clear from the tone and, indeed, the

15 content of the written material you have seen.

16 Now, perhaps a more substantial issue -- it

17 certainly became a very substantial issue -- was, of

18 course, that concerning the request for CHIS identities.

19 Bearing in mind all the time that we are looking

20 here at obstruction, one of the questions you should, in

21 my submission, keep firmly in your mind in this is what

22 was the motivation on the part of Special Branch, B542

23 and the other senior officers, in dealing with it, in

24 seeking to manage it, which is one way of putting it,

25 possibly rather more actively seeking to resist it in

 

 

92


1 the way that they did.

2 When they explained in their evidence to you their

3 grave concerns both about source protection in general,

4 the longer game, and also about the Port team's own

5 security, in other words their ability to keep the

6 material in the appropriate way, to keep it safe with

7 human lives in mind, those are, you may think, entirely

8 reasonable motives. The question is whether there was

9 anything else in play here in addition to that, and

10 perhaps the bigger theme, I mentioned earlier, this

11 sense of discomfort, of being taken into a place that

12 they didn't know, they didn't recognise, with which they

13 were not familiar.

14 Now, it starts with two very crisp requests, one to

15 Special Branch and one to CID, in August 2000, requiring

16 a response within a matter of a very few days. And

17 Mr Port explained that to you -- because on the face of

18 it it does look like a very bold demand indeed -- by

19 saying it had been preceded by less formal requests.

20 Certainly, so far as the Head of South Region was

21 concerned, he said to you it came like a bolt out of the

22 blue. That's Day 115, page 83.

23 Mr Port also conceded to you in his evidence at

24 Day 114, page 58, that the deadline and the tone were

25 indicative of the frustrations felt at this point by the

 

 

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1 Murder Investigation Team. And bear in mind, please,

2 that this is now some nearly 18 months into the

3 investigation.

4 Now, the history is, I'm sure, familiar. Various

5 meetings took place, and in the end the Special Branch

6 officers who were plainly unhappy about it realised that

7 in a sense the only individual within their organisation

8 who could make the relevant decisions was not their

9 immediate boss, B542, but the Chief Constable himself.

10 That was, as it were, one theme of what happened in the

11 last quarter of 2000.

12 But if you remember, there was something going on to

13 the side, because some of the Special Branch officers

14 initiated their own contact with the Security Service

15 and this would appear to be another example of

16 a knowledge gap between the very senior officers within

17 Special Branch and their Chief Constable, because if you

18 remember, he indicated to you in his evidence at

19 Day 100, page 104, that he didn't know about the

20 Security Service involvement in the matter until he was

21 interviewed by Eversheds on behalf of the Inquiry.

22 It has to be said that there is, admittedly late in

23 the day, I think possibly it is after he had made the

24 decision which he made in January to release their

25 identities -- of a discussion between him and the DCI

 

 

94


1 about this issue, which may, you may think, cast some

2 doubt on the Chief Constable's recollection in that

3 regard.

4 He insisted to you in his evidence that although

5 surprised that the Special Branch officers had gone to

6 the Security Service without his knowledge, he was not

7 offended. However, the Head of Special Branch, the Head

8 of E Department, as he would have had it, said to you

9 that it would have been:

10 "... totally ridiculous to think that he would not

11 have informed the Chief Constable that he was in contact

12 with the Security Service about this request."

13 What then was the nature of the request that the

14 Special Branch officers were making of the Security

15 Service? B629 did not accept from me that he was

16 effectively asking the Security Service to persuade the

17 Chief Constable not to accede to Mr Port's request. And

18 I made that suggestion, based on another contemporaneous

19 document. I don't want to look at it now. It is

20 a Security Service document, RNI-532-157. And, again,

21 you have to ask yourselves the same questions about the

22 difference between the document and the recollection.

23 Now, so far as that is concerned, you will remember

24 also that this material records B629 as expressing doubt

25 as to whether the Chief Constable would continue to hold

 

 

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1 the line, would continue to support Special Branch

2 against the Murder Investigation Team. And, again, the

3 same comments about 629's evidence about that apply.

4 Now, eventually -- and in January -- the

5 Chief Constable made his decision, and we have perhaps

6 the final relevant Security Service record at

7 RNI-532-199, where S224, from whom you did hear,

8 recalled that the Head of South Region:

9 "... did not hide his anger at the way he had been

10 treated by Port and his inquiry team, and a feeling of

11 betrayal by the Chief Constable who had gone back on his

12 word over disclosure of agent identities."

13 Of that, B629 said to you in his statement,

14 paragraph 237:

15 "I have to say that this wording is total theatre."

16 Confirming in his oral evidence that it was

17 seriously exaggerated.

18 Now, sir, there was a sub-issue here, which emerged

19 and then rather died down again in relation to press

20 coverage and leaks to the press. You will remember at

21 the very end of 2000, before the Chief Constable had

22 made his decision but after, as it emerged, he had given

23 Mr Port an assurance -- 11 December, that was -- that he

24 would have access to the identities, the pieces emerged,

25 one in the Sunday Mirror, one in the Sunday Life, about

 

 

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1 all of this. And you have heard from both sides their

2 adamant denials of responsibility.

3 You have also seen in the material a comment by B629

4 in drawing this issue to the attention of his boss, the

5 Head of Special Branch, the comment being that the

6 articles and, more specifically, the leaking of that

7 information, he described it as an act of treachery.

8 And in this at least, B629 did not resile from what he

9 had written at the time or what was written about him at

10 the time, and he said indeed that it was a deliberate

11 leak to the press by someone in the Port team, and he

12 considered that the aim of the leak was to force the

13 Chief Constable's hand. That's RNI-115-111 and

14 RNI-115-112.

15 As I said, again, on the other side Mr Port firmly

16 rebutted the suggestion that they had been responsible

17 for the leak, pointing, as I say, to this earlier

18 meeting and saying that there was no motive, as had been

19 suggested, for them going to the press with their

20 concerns.

21 Sir, that is a survey, at something of a rush, of

22 the various topics on which you have heard evidence and

23 I have attempted to suggest that the contemporaneous

24 records are likely to be more reliable than some of the

25 recollections in tranquillity. However, even if you

 

 

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1 conclude that this was a relationship which had its

2 stormy phases, the question remains whether the totality

3 of the evidence, even on that basis, discloses

4 obstruction of the work of the Murder Investigation Team

5 by either Special Branch or the Security Service or, of

6 course, anyone else. And in our chapter, I should say

7 that we have also considered the position of the Army in

8 this regard.

9 In short, therefore, you will have to look to see if

10 there is any credible evidence of the investigation team

11 either being sent in the wrong direction or being

12 impeded in their work by or as a result of any of the

13 individual episodes that we have examined in such

14 detail, or whether at the end of the day, what is in

15 issue here is a combination of some incompetence,

16 a clash of cultures and the perhaps, with hindsight,

17 inevitable result of moving into new territory, and of

18 this investigation breaking new ground.

19 Now, sir, there are just a couple of further things

20 I want to mention. The first is to say something, so it

21 is on the transcript, about recommendations.

22 In the submissions that you have received from the

23 Full Participants and others there is no suggested

24 recommendation. In the Inquiry Solicitor's letter of

25 22 April, all Full Participants were asked to consider

 

 

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1 this issue specifically. In their oral submissions,

2 none made a suggestion for recommendations, save, if you

3 remember, for Mr Harvey on the last day and then, sir,

4 only in response to a further prompt from you. That's

5 Day 27/150 to 152.

6 I have no suggested recommendations for you to

7 consider and, sir, the reason for that is that, as

8 others have observed, so much has changed here in the

9 years since the events you have been considering and

10 specifically in the field of policing, identified in

11 number 28 on your List of Issues. And, as I have said

12 already, you have had the benefit, indeed, of hearing

13 about those changes from -- some of those at any rate --

14 who were intimately concerned with them.

15 So I'm not proposing to say any more about

16 recommendations.

17 Sir, so I think the only thing that remains is for

18 me to thank you for listening to these closing

19 submissions with the patience and stamina, if nothing

20 else, with which you have also listened and which you

21 have displayed throughout the hearings. No one

22 listening or reading these words on the transcript could

23 or should underestimate the enormity of the

24 responsibility which you were handed by the Secretary of

25 State. And at the first hearing of the Inquiry, you

 

 

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1 will remember, over four years ago, you said that

2 uncovering the truth can be a painful business and

3 everyone present will have, for various different

4 reasons, have had cause to endorse that sentiment over

5 the last months of the hearings.

6 But I hope, however, sir, that we have also and at

7 all times kept in mind another of your injunctions in

8 that opening statement, namely that we should not lose

9 sight of something in our work and in the focus of

10 effort and attention on the controversial and complex

11 questions that we have considered, namely that

12 Rosemary Nelson's murder was, first and foremost, as you

13 put it, a terrible and bitter loss for her family.

14 And I hope I won't be charged with a failure to act

15 impartially when I say that I would not like to end

16 these remarks without paying tribute on behalf of all of

17 your team to her family for the role that they have

18 played during these hearings, which has been an

19 important element in their success.

20 And finally -- very finally -- I should say that

21 I continue to believe in the validity of another

22 observation that you made in your opening statement,

23 which is that the truth, when revealed, can allow

24 lessons to be learned about the past and can lead to

25 a better way forward for the future. And I hope that

 

 

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1 that will be something which you take with you to the

2 next stage of your work.

3 THE CHAIRMAN: Mr Phillips, thank you very much indeed for

4 everything you have said.

5 With regard to yourself, our stamina has been

6 minuscule compared with yours. All of the three of us

7 would like to endorse everything you have said about

8 Rosemary Nelson's family, their cooperation.

9 We have seen in the last three days before us in the

10 back of this room Mr Paul Nelson listening and attending

11 in the last three days, day after day, to what you have

12 been saying, and the three of us would like Mr Harvey

13 and Mr O'Hare to pass on to Mr Paul Nelson and his

14 children, and to Mrs Magee and the whole Magee family

15 our very best wishes for their future. We can only hope

16 that our report in some way can be a solace and

17 a resolution of some of their doubts and their problems.

18 I would like, and I know my two colleagues would

19 like, to thank everyone in this room, both those who are

20 present in the flesh, so to speak, and those who have

21 been -- some passing, some day after day but not today,

22 for all their help, not only to the Panel, but to the

23 Inquiry team in making this work possible in a realistic

24 length of time. This Inquiry could have almost have

25 been going on forever but for the great degree of

 

 

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1 cooperation that we have had from everybody in this room

2 and without. I know many members who often were in

3 behind Mr Stafford, for example, were able to resolve

4 problems about disclosure and so forth, for which we are

5 greatly indebted.

6 I don't think this is an occasion for frivolity, but

7 it is right to say that everybody, almost throughout,

8 has been able to display a degree of good humour. And

9 with those words, I thank you on behalf of the three of

10 us all very much.

11 (3.15 pm)

12 (The Inquiry adjourned)

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