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Full Hearings

Hearing: 6th May 2009, day 126

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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, 6 May 2009
commencing at 10.15 am


Day 126


1

2 Wednesday, 6 May 2009

3 (10.15 am)

4 Closing submissions by MR DONALDSON (continued)

5 THE CHAIRMAN: Yes, Mr Donaldson?

6 MR DONALDSON: Thank you, sir. If I could just pick up on

7 some matters raised by you, Mr Chairman, yesterday. But

8 before I do that, I just want to say this, that I

9 haven't got a lot of time to deal with a number of these

10 matters. I will do my best --

11 THE CHAIRMAN: Well, don't feel too constrained. I mean, if

12 we are making useful progress, we can continue into the

13 early afternoon.

14 MR DONALDSON: That's very kind of you, sir.

15 THE CHAIRMAN: We don't want repetition but if there are

16 matters that we will be raising with you, which we will

17 like answers to, and they are obviously points you wish

18 to stress also.

19 MR DONALDSON: I didn't want to eat into anybody else's time

20 this afternoon and I'm doing my best to avoid that.

21 Just dealing with the matters you raised,

22 Mr Chairman, about the letter, first of all, there was

23 a letter or a note relating to a discussion with

24 Rosemary Nelson dated 3 October 1996. I do not have

25 a reference for it but in fact it was a note prepared,

2

1 I believe, in relation to matters raised with

2 Jane Winter and the note says as follows:

3 "She does not have many clients arrested under PDA

4 and when she does, they are usually taken to

5 Gough Barracks. On those occasions she comes in for the

6 usual kinds of abuse and threats. RUC officers will say

7 things like, 'We don't want her, she is a Provie'. One

8 client was told, 'We will tell Billy Wright your

9 solicitor's address. We will bring him into the house.'

10 When she was visiting a client at the Maze Prison

11 recently, a prison officer announced loudly, 'She is for

12 [name of prisoner]'. She was organising the protest at

13 the Garvaghy Road. She had in fact given legal advice

14 to the Garvaghy Road residents concerning Loyalist

15 marches.

16 "She resents these slurs on her professionalism as

17 a lawyer. She found what happened to Patrick Finucane

18 horrifying and it has given her pause to think,

19 especially as she is a mother of three young children,

20 although she has concluded that she cannot allow this

21 type of threatening abuse to prevent her from doing her

22 job properly. She recognises that other lawyers have

23 refused to take on contentious work. She says that she

24 was feeling quite worried about her own safety just

25 before the ceasefires."

3

1 Now, there was a response to that letter, a response

2 to that matter, which I think, Mr Chairman, you thought

3 it was a telephone call. In fact our understanding of

4 it is that that was information that was provided at

5 a private dinner which Rosemary Nelson had with

6 Jane Winter, because on 7 October, just four days later,

7 she wrote a letter -- now, I have the reference for it

8 but I'm not going to consider it; it is RNI-115-002 --

9 which confirms, I think, the point I'm making.

10 Now, what we would say about it -- in that letter,

11 by the way, Jane Winter reminded her and said if

12 anything like this happened in the future to make a note

13 of it.

14 Now, it is not for easy for us to deal with this

15 matter or to make any further comment about it other

16 than this. Arising from those matters certainly no

17 complaints were made, there was no letter sent in of

18 complaint and of course the clients were not identified.

19 So we can't really assist much further on that point.

20 We come then to another matter which you kindly drew

21 to my attention, Mr Chairman, and that was another note

22 of 18 February 1997 and it was -- it was a telephone

23 call from Rosemary Nelson and the note reads as follows:

24 "Lurgan has been under siege for the past week with

25 500 troops searching a single estate. Rosemary Nelson

4

1 has had six clients in Gough Barracks last week. Her

2 clients have been reporting an escalating amount of

3 abuse and threats made against her by RUC officers at

4 Gough. Recently these have included threats to get her

5 shot. They also include sexual innuendo regarding

6 supposed activity between herself and her clients during

7 consultations at Gough, which she finds particularly

8 disgusting. She will be taking statements from her

9 clients about all this. Some dozen clients have

10 reported such remarks to them recently."

11 Now, two points I would make about that is, firstly,

12 I don't know where the dozen comes from and I don't know

13 even know where the six comes from at the beginning

14 because we do know on the evidence -- and it is the only

15 evidence I think you have before you -- that in fact

16 four clients were seen by her.

17 Now, there were a number of Lurgan Nine complaints

18 to Rosemary Nelson following their release from Gough

19 in February 1997, at least that's what the note says.

20 Four of the complainants were detained at the time; that

21 is Barry Toman, Colm Toman, C138 and Anthony Simmons.

22 This was the issue raised yesterday. There was also

23 a point made, Mr Chairman -- you asked the question

24 didn't Mr Vernon write and make a complaint on when a

25 client in a sense -- a client of his although with

5

1 Rosemary Nelson's firm -- on the very day he was being

2 interviewed, and you believed the complainant was C208.

3 Now, I think that's incorrect as a result of our

4 investigations because C208 was detained at Castlereagh

5 between 29 and 30 June 1998.

6 THE CHAIRMAN: It is 1998?

7 MR DONALDSON: 1998, yes.

8 THE CHAIRMAN: I accept that. But that was a contemporary

9 report.

10 MR DONALDSON: Yes, but that of course falls after this June

11 period that I'm talking about.

12 THE CHAIRMAN: Yes.

13 MR DONALDSON: The four people -- I will refer to them only

14 quite quickly. I have already dealt with Barry Toman in

15 some detail. Now, he was released on 14 February 1997

16 and he claimed that he told Rosemary Nelson about the

17 threats during a consultation he had with her at Gough.

18 Now, undoubtedly, he did meet her all right and on

19 a number of occasions. However, did he not mention this

20 in his RNI statement, and at paragraph 10 of his

21 statement he claims that he went to tell Rosemary Nelson

22 that the police had been saying about her following his

23 release and he claimed that he made his CAJ statement

24 a day or two after the incident.

25 Now, that was a CAJ statement made, I think, to

6

1 Mr Mageean, he says, but there is a lot of doubt about

2 when exactly that statement was made and it appears to

3 us that it was almost certainly not made at that time

4 but much later on. And the significant -- the overall

5 significant thing about it is this: that Barry Toman,

6 when he was released from custody, made no complaints.

7 We have done that in detail.

8 Colm Toman is in much the same category as his

9 brother. He said at paragraph 26 of his RNI statement

10 that he told Rosemary Nelson what the police had said

11 about her while he was in custody and he said that:

12 "She was angry and told me not to worry."

13 And he told Counsel to the Inquiry that he may have

14 told her about the threats on the third day of his

15 detention but he was not 100 per cent sure. He believed

16 that he went to her office a couple of months after he

17 was released. He made no complaints when he was

18 released from custody.

19 His account is, I am afraid, very difficult to make

20 sense of and we have asked that his evidence about the

21 allegations should be -- is entirely flawed and

22 unacceptable.

23 In relation to C138, he was released on 9 February

24 and in paragraph 19 of his RNI statement he claimed he

25 did not tell Rosemary Nelson about remarks by the

7

1 police. He explained his decision not to tell her. He

2 said:

3 "It wouldn't have done either of us any good for her

4 to learn of it whilst I was still in there."

5 And he claims he told her about the abuse on the

6 Monday or Tuesday after he was released, and he

7 confirmed in his oral evidence as follows:

8 "I went to her office and more or less just told her

9 what had happened, what the craic was."

10 But likewise on his discharge from custody he said

11 he had no complaints to make.

12 Now, the question arises as to, I suppose,

13 Rosemary Nelson did make a point -- it arises in the

14 LAJI letter and in the Torricelli letter, certainly she

15 was aware of something going on but how much one doesn't

16 know. Anthony Simmons was released on 14 February. He

17 did not make a statement to Eversheds but he provided

18 a statement to the Mulvihill team, and he refers to

19 a meeting he had with Rosemary Nelson during the second

20 day of his detention and he says that during this

21 consultation:

22 "I told her that they had been giving me a hard time

23 and that they had been running her down about terrorism.

24 I didn't mention the personal stuff until about three

25 weeks later to a representative of her office,

8

1 Pat Vernon. The reason for not mentioning the personal

2 comments to her at that time was because it was

3 embarrassing."

4 THE CHAIRMAN: That has a ring of truth about it,

5 doesn't it?

6 MR DONALDSON: It is a matter for the Tribunal to decide

7 whether it has or not because when you look at the

8 whole -- I haven't gone through Anthony Simmons' full

9 story but you have it all. Anthony Simmons, again, is

10 generally unbelievable when you look through the entire

11 transcript of what he said in his evidence and there are

12 a lot of inconsistencies in it. For example, on

13 discharge again he said he had no complaints to make.

14 And of course, what is again very important is that

15 Rosemary Nelson herself did not make any formal

16 complaint to the police or to any official organisation

17 or body apart from these communications she had with

18 Jane Winter, and we know that that filtered into the

19 system. I think it would be, I think, right to say that

20 it reached Mr Lynch and it reached, I suppose --

21 I suspect via Mr Lynch it got to more Torricelli because

22 Mr Torricelli is really passing on what he gets from

23 Mr Lynch and Mr Lynch is passing on what he gets from

24 Rosemary Nelson or Jane Winter.

25 I would -- it is difficult to see just what the

9

1 truth is about this. In the NIO submissions at

2 paragraph 9.4, page 63, there is a section relating to

3 international reporting, and a number of points are made

4 there which we would adopt as being a reasonable and

5 fact-based submission about references Rosemary Nelson

6 was making to people such as Cindy Wasser and others,

7 which in fact can hardly be correct.

8 And we draw attention to the fact that Mr Leeson

9 said something to the effect that Rosemary Nelson was

10 a fantastic publicist. So the Tribunal will have to

11 make its own decision about that and I don't propose to

12 say anything further about it.

13 Let me come to the matter raised by

14 Sir Anthony Burden about Trevor McKeown. Now, the point

15 was that, I suppose, Trevor McKeown had made certain

16 extremely serious allegations. Now, I needn't go

17 through the full details of that because I think that

18 I did make a submission about that, you will recollect,

19 before he was about to give evidence, when he was

20 threatening to give evidence, and in which I set out the

21 background to his story, which was really quite

22 incredible.

23 I feel that really the overall picture is that it is

24 just quite unbelievable, although there was this

25 coincidence -- I think Sir Anthony had in mind was the

10

1 fact that he was making this allegation as someone

2 coming from the other side of the community on

3 a different occasion and how this had happened. One can

4 only speculate about that, I suppose. I do draw

5 attention, though, to a very important -- a ruling given

6 by you, Mr Chairman, in relation to my application,

7 a ruling with which I respectfully fully agree, in which

8 you said:

9 "In considering the allegations ..."

10 Those are the allegations of McKeown:

11 "... we shall take into account all the evidence in

12 material before us, which includes McKeown's evidence

13 ..."

14 That could only be in his statement of course

15 because he didn't give evidence:

16 "In weighing up McKeown's evidence, we shall bear in

17 mind that he is a convicted murderer. We shall consider

18 matters including when the allegations were first made,

19 to whom it was made and the circumstances in which it

20 was made throughout, fully heeding the principle that

21 a very grave allegation such as this requires the basis

22 of very convincing material before it can be given any

23 substance."

24 We feel that in applying those principles you could

25 not possibly give any credence to the account given by

11

1 Mr McKeown, who was not prepared to come and give

2 evidence and be examined about it and to be examined,

3 for example, about the reasons why he made the

4 allegation in the first place.

5 It is of the utmost significance, of course, that he

6 was arrested, I think -- he was arrested in -- thank you

7 very much -- 15 July 1997. He was questioned there by

8 Detective Constables P12 and Walker and he was

9 subsequently -- well, within a few days he made

10 a complaint. Now, this is very important.

11 His solicitor, whose name I have not mentioned, went

12 to see him. He recorded a complaint of a relatively

13 trivial assault. He took a very detailed note. There

14 is not a word at all in that note about this incitement

15 to murder. In fact the matter doesn't surface until

16 2003, when he mentions it to some reporter.

17 Now, I think it is right to say that about that time

18 there was a reference to the fact that the papers had

19 been passed to another solicitor to do his appeal. Now,

20 I'm not sure what the date of his appeal was but that

21 was the evidence.

22 Now, there is a whole prison culture and information

23 passes around, and in the prison one would be amazed at

24 how much information they get and pass on to each other.

25 And one can only surmise that Mr McKeown became aware of

12

1 this case about allegations that were made and he

2 happens to jump -- he sees a point and jumps on the

3 bandwagon at a late stage and see this is as an

4 opportunity perhaps to assist his appeal or score some

5 points against the police. Now, that's speculation on

6 my part, I have to say, but in this jurisdiction we have

7 a fairly good nose for sometimes what goes on in the

8 prison and what happens --

9 THE CHAIRMAN: It is obviously something we have got to

10 consider.

11 MR DONALDSON: Yes, of course. But that's only -- I don't

12 really need to speculate, I think, about that but I'm

13 doing that in deference to the question that has been

14 raised by Sir Anthony.

15 THE CHAIRMAN: I think obviously the allegation has to be

16 considered with extreme caution.

17 MR DONALDSON: Of course.

18 I don't propose to say anything further about that,

19 but we feel that, indeed, in following what you have

20 said, Mr Chairman, it would seem to be improbable that

21 you might take into account anything that Mr McKeown was

22 saying.

23 Now, if I might move now to another topic which is

24 raised in the letter from Mr Myers, and that concerns

25 the important topic of threat assessments.

13

1 In the letter of 23 April 2009, two questions were

2 posed:

3 "1. Was the system for the assessment of threats

4 itself flawed and, if so, in what respects?

5 2. Did the threat assessments fully take into

6 account all relevant information as to Rosemary Nelson's

7 safety and, if not, what were the reasons for that?"

8 And references are made to some of the submissions.

9 In the family's submissions it is alleged that the

10 threat assessment system was flawed, and reference is

11 made particularly to the report of B123. We have to

12 look more closely at what the system required. It would

13 appear that it was unlikely that any action would be

14 taken unless was some evidence of a specific threat, and

15 I suppose that threat would have to be a credible

16 threat, although I don't think that was specified.

17 The evidence from the witnesses would indicate that

18 all threats were taken seriously and it was the

19 invariable practice of the police to inform the subject

20 of the threat as soon as possible if there was an actual

21 threat and, indeed, this applied across the board and

22 they are instances even of people with terrorist

23 credentials being given a warning of that kind.

24 It is quite clear that there was no specific threat

25 as such concerning Rosemary Nelson and that was the view

14

1 expressed by Special Branch. However, there is a matter

2 concerning the threat letter and, to a lesser extent,

3 the "Man Without a Future".

4 It is somewhat, we say, disingenuous to assert that:

5 "A police visit would also have alerted

6 Rosemary Nelson to the fact that she was known to

7 Loyalist paramilitaries."

8 That is in paragraph 14.9 of the family submissions.

9 She would have known that, and likewise the assertion

10 that the police should have told her that they thought

11 she was close to the Republican movement:

12 "... would have influenced her next steps as to her

13 own safety."

14 And perhaps have encouraged her to apply for KPPS.

15 In relation to that point, Rosemary Nelson, as

16 a solicitor in Lurgan, knew the situation perfectly

17 well. She knew the divide in the community, she knew it

18 was dangerous, she knew that there was a general risk,

19 perhaps to herself, there was a risk to many people and

20 she couldn't have been in any doubt about that and the

21 police couldn't have told her anything more that she

22 didn't know.

23 Some further points of a general nature can be made.

24 Firstly, the system of assessment had been operated for

25 many years. It seems to have worked satisfactorily and

15

1 was not the subject of any criticism. The police were

2 very conscientious in warning those who were at risk,

3 and we have heard evidence that hundreds of lives were

4 saved in this way.

5 The second point is that thousands of people in

6 Northern Ireland were at risk of different levels but it

7 was obviously neither practical nor sensible to go about

8 warning people about risks that were vague and

9 non-specific. The entire police force of 12,000 people,

10 every man and woman in that force, was at risk simply

11 because they were police officers. The same applied to

12 a lot of people in other work: the Prison Service, in

13 the Civil Service, among some lawyers and among all

14 judges. That was the level of risk.

15 The third point is that undoubtedly Rosemary Nelson,

16 like thousands of other people in Northern Ireland,

17 including the categories I have mentioned, were at risk

18 in varying degrees. The question has now been raised as

19 to whether or not the system was capable of

20 accommodating a threat, for example, by a rogue police

21 officer, was a question, I think, asked by

22 Dame Valerie Strachan. We would submit that the system

23 overall, including the Complaints and Discipline

24 Department, would have covered the situation more than

25 adequately. On receipt of a complaint of that kind --

16

1 and dealing with the theoretical situation of the rogue

2 police officer -- the matter would inevitably have gone

3 to Complaints and Discipline for investigation and,

4 because of the seriousness of such a complaint, ICPC

5 would inevitably have been involved.

6 It should be pointed out that this situation

7 envisages the allegation of a threat -- of a threat as

8 opposed to an actual threat. What I mean by that is

9 that, for example, the allegation concerning a police

10 officer -- for example, a client makes an allegation

11 that a police officer has threatened to kill the

12 client's solicitor, that is an allegation of a threat --

13 I make a distinction here -- whereas another distinct

14 threat coming in which the Special Branch find is

15 a threat that has to be dealt with.

16 So first of all, the allegation of the threat has to

17 be considered to find out whether there is any force in

18 it because the difference is that you know who the

19 person is -- you can identify the person who received

20 the threat and you can identify the person who made the

21 threat. So it can be dealt with in that way. So,

22 therefore, in relation to the rogue police officer, we

23 would respectfully submit that the system was quite

24 capable of accommodating to that.

25 The fact that Rosemary Nelson was a solicitor and

17

1 that many NGOs were vociferously expressing concern

2 about her safety should not necessarily place her in

3 a more privileged position than the many others who were

4 at general risk. Undoubtedly, however, she was given

5 a great deal of consideration, far beyond that which an

6 ordinary citizen might have received, and it was

7 eventually decided that it was sufficient in all the

8 circumstances that her home and office should receive

9 attention from the local police.

10 We, therefore --

11 THE CHAIRMAN: But is there any evidence that that actually

12 took place?

13 MR DONALDSON: Let me -- I'll develop that point, sir, in

14 a moment.

15 THE CHAIRMAN: Yes.

16 MR DONALDSON: Thank you. We do not accept that conclusion,

17 as has been set out in the family submissions.

18 There was an allegation too at paragraph 15.43 that

19 Special Branch had a prejudiced and poisonous

20 interpretation of Rosemary Nelson's perfectly legitimate

21 professional activities, and we say that is quite

22 unsustainable when one considers the nature of the

23 intelligence and the other information available to

24 them.

25 As to the averment at paragraph 15.54 that there was

18

1 a collective failure of the organisation, we submit that

2 such a view is entirely unsustainable. Ronnie Flanagan

3 was a hands-on chief constable who took an interest in

4 virtually everything insofar as his time permitted. He

5 was kept informed on a regular basis by senior

6 Special Branch officers, but at this remove, more than

7 ten years later, Sir Ronnie can hardly be expected to

8 remember all that he was told.

9 He may not, of course, have been given every detail

10 of information and this is only to be expected. The

11 police as a whole operated extremely efficiently in

12 unusual and difficult circumstances.

13 THE CHAIRMAN: If I may interrupt there, are you submitting

14 that the gist of the intelligence about

15 Rosemary Nelson -- that she was a supporter of PIRA,

16 et cetera -- which was believed by senior members of

17 Special Branch, was communicated to Sir Ronnie Flanagan,

18 the gist?

19 MR DONALDSON: I don't think I can make that submission.

20 There certainly was a feeling that he was aware of

21 something. How much, we really don't know and we can't

22 really say how much he actively knew.

23 Sir Ronnie has obviously -- does not accept that he

24 was aware. One would have to look at his evidence

25 carefully to see just whether or not the reasons he has

19

1 given are perhaps due to some memory lapse over a period

2 of ten years. I think our submission would be that the

3 Special Branch did give him a considerable amount of

4 briefing and I think we would submit too that they did

5 not deliberately withhold anything that was important.

6 Ronnie Flanagan himself said that on the basis of a need

7 to know, he wouldn't necessarily need to be told

8 everything, even as Chief Constable, he said. And,

9 therefore, one has to look at it in that way and

10 remember that Sir Ronnie Flanagan was head of a very

11 large force of 12,000 members and he had a lot of

12 demands on his time.

13 This is only a very small part of what he had to

14 contend with at that time. He was a man who had to be

15 briefed as he drove around in his car. He was rushing

16 from pillar to post, working very long hours and,

17 therefore, he may not have remembered necessarily

18 everything that was passed on to him.

19 THE CHAIRMAN: So that I understand it, anyway, you accept

20 that he should have been made aware of the general gist

21 of the intelligence about Rosemary Nelson? You would

22 also submit that in all probability he was?

23 MR DONALDSON: Well, as to your first proposition, sir,

24 I think I would have to accept that.

25 THE CHAIRMAN: Yes.

20

1 MR DONALDSON: As to the second proposition, I really -- I'm

2 not sure.

3 THE CHAIRMAN: Yes, thank you. Yes?

4 MR DONALDSON: Yes, just let me find my place again.

5 We do submit that Special Branch in particular were

6 very responsible and it was by dint of efforts and sheer

7 professionalism that numerous lives were saved. And to

8 speak of a collective failure of the organisation is

9 grossly unfair and not at all justified.

10 At paragraph 15.45 it said that:

11 "P136 did not accept that there was a corporate

12 failure within the police."

13 This is an incorrect statement and we would refer to

14 portions of the transcript of her evidence reference at

15 pages 167 to 171 on Day 62.

16 Before I do that, I'm reminded in fact that in

17 relation to intelligence -- coming to the point you

18 raised just a moment ago -- I'm reminded, Mr Chairman

19 that there were 76,000 intelligence documents processed

20 by the RUC in 1999. Now, that gives some idea just of

21 the sheer volume of material flooding through and,

22 therefore, it may be, in fact it's obvious, that

23 Sir Ronnie Flanagan could not have been briefed on all

24 of that. But I think your point, sir, is that that was

25 quite an important matter which might -- one would

21

1 expect should have been drawn particularly to his

2 attention.

3 THE CHAIRMAN: Why do you submit that Sir Ronnie Flanagan

4 approved, personally approved, both the threat

5 assessments on Rosemary Nelson?

6 MR DONALDSON: Yes. Well, I will -- I do promise to come to

7 that as part of my programme, part of something I want

8 to deal with.

9 THE CHAIRMAN: Yes, thank you.

10 MR DONALDSON: Now, I was referring actually to the evidence

11 first of all of P136. Now, P136 dealt with this matter

12 too of the threat letter, about which there has been

13 some dispute. But what she said was -- and I refer to

14 her evidence at page 168 or just before that -- I'm just

15 trying to find the question here because I don't want to

16 read it all. The question had been asked of her.

17 "Question: But they weren't taking into account the

18 NGO correspondence, all the complaints material which

19 was known to another section, namely the complaints and

20 discipline, for example, would they?

21 "Answer: I would have expected that they would have

22 taken into account whatever had gone out to them,

23 indeed."

24 And later she gives a fairly lengthy answer and she

25 says:

22

1 "I would say that the people best skilled and best

2 placed were actually the local district or division

3 because they would have had the knowledge. As

4 I highlighted earlier in evidence, Command Secretariat

5 had no access whatsoever to the intelligence. They

6 didn't know what information was available. So the

7 people best placed to actually assess the risk would

8 have been the local division in consultation with

9 Special Branch."

10 And she goes on to point out that there were over

11 2,000 threats per year, and she adds:

12 "But my concern was, if you could not get to the

13 person who was receiving that information, it made the

14 investigation very difficult."

15 You see, under the KPPS scheme -- it wasn't only

16 activated of course, if in fact someone made an

17 application, apart from the special categories. And

18 there was no special application. So, therefore, it did

19 not receive the full treatment from the Security Branch.

20 But nonetheless, a lot of attention was paid to

21 Rosemary Nelson, which I will deal with now.

22 We point out the Chief Constable was aware of the

23 publicity surrounding Rosemary Nelson and had met

24 various NGO representatives. He eventually made the

25 decision that nothing further was required and the local

23

1 police decided that her house and office would receive

2 attention.

3 Now, I want to refer to an important part of his

4 evidence. Again, I do not have an RNI number for it,

5 but I will give the other reference. First of all, at

6 Day 99, page 143 is the start of this particular --

7 where he deals with this particular topic. He is

8 questioned about it in some detail. There is a very

9 lengthy question put to him and part of it reads as

10 follows -- a document is read to him and in quotations

11 it says:

12 "Discussed with CC and 1498 the Chief Superintendent

13 P157. Nothing further can be done by police at this

14 time."

15 Now, P1 -- and, again, I'm quoting from the

16 question, really, I think it was from Mr Phillips:

17 "Now, P157 in his evidence to the Inquiry said that

18 it was likely that he gave you the file, that you had

19 a chance to look at it and then that you had

20 a discussion about this question, about what could be

21 done in relation to Rosemary Nelson. Do you have any

22 recollection now of that discussion with P157?"

23 And he answered:

24 "I do not have a specific recollection, but I think

25 it is more likely -- what is more likely is that he

24

1 would have described to me the reports that he had

2 sought and received and would have dealt with the

3 outcome that the Assistant Chief Constable believes,

4 that because there are no specific threats, because

5 there are no Special Branch intelligence, that what

6 should be done is, because of her high profile, police

7 attention should be paid to her home and business. And

8 I would have thought that that was an appropriate

9 outcome."

10 Now, the matter is pursued in some detail. He is

11 asked another question as follows:

12 "And it looks as though the conclusion that you drew

13 was that nothing further could be done?

14 "Answer: I think I have seen documents over the

15 past couple of days where officers locally, and maybe in

16 that chain of correspondence there are some suggestions

17 from a local police officer, that actually in the

18 absence of intelligence or the absence of a basis for

19 threat, that to actually physically visit Mrs Nelson may

20 cause alarm or distress. I think I recall looking at

21 a document like that, but only over the past couple of

22 days have they been brought to my attention."

23 He is then asked a further question:

24 "So you don't think it would have been appropriate

25 to offer a visit from the crime prevention officer?

25

1 "Answer: I'm not sure. I personally wouldn't see

2 any difficulty with that. As I have said, there is

3 a report brought to my attention over the past couple of

4 days when someone thought that that may have had an

5 inappropriate response, that people -- that Mrs Nelson

6 may have thought, 'My goodness, do I need this? What's

7 going on?'"

8 He is then asked:

9 "In that case, why not do it?"

10 That, I think, is a reference to having a crime

11 prevention officer call on her. He said:

12 "I can't see any reason other than the reasoning

13 offered by the local officer. Personally, it is not --

14 I would have thought that the response as indicated by

15 the Regional Assistant Chief Constable of local police

16 being briefed and not only being briefed but playing

17 particular attention to her house and office, her home

18 and office, was the appropriate response at that time

19 bearing in mind that was on RUC records."

20 Just another part and then I will finish with what

21 the Chief Constable said on this topic, and that relates

22 to what he said at Day 100 at page 42 and following.

23 May I just, before leaving that, make a comment on that

24 last matter? It would have been very easy for

25 Sir Ronnie Flanagan just to have said, "All right, send

26

1 out a crime prevention officer to give her some advice."

2 I think at that stage everybody knew that

3 Rosemary Nelson wasn't interested in receiving a visit

4 from the police, she probably wouldn't have entertained

5 it. A letter perhaps could have been sent to her giving

6 her the advice in the post, but I can see how that's

7 purely cosmetic. That would have been a great way for

8 a prudent chief constable to cover himself, to protect

9 his back, by sending out a letter or something of that

10 kind in order to cover himself. But we would

11 respectfully submit that that wouldn't have made the

12 slightest bit of difference and it would have been

13 purely cosmetic.

14 Coming to Day 100 at page 42, he gives quite

15 a lengthy answer. He is asked a very lengthy question

16 and the answer is this:

17 "I have to say, sir, sitting inside this Inquiry,

18 the organisation that I joined -- setting aside this

19 Inquiry, the organisation that I joined, on the day

20 I joined it, outlined to us the priorities for policing

21 and the number 1 priority was protection of life and

22 that has always been something that means very much to

23 me.

24 "In this instance, Mrs Nelson's life was brutally

25 taken by a cowardly terrorist, so quite apart from this

27

1 Inquiry, I have in mind gone over time and time again

2 that what we as an organisation might have done

3 differently and what I as an individual might have done

4 differently. I have to say in looking with hindsight --

5 and I stress with hindsight -- in terms of those

6 assessments that we discussed in detail, in response to

7 your question would I now do things differently, there

8 are things I would have done additionally. I would have

9 made sure that Mrs Nelson was seen personally, was given

10 advice. That didn't take place. I stress that that's

11 with the benefit of hindsight, and all these many, many

12 occasions when I have gone through this and gone through

13 other instances where people have lost their lives and

14 considered time and time again whether things might have

15 been done differently, I do come to the genuine

16 conclusion in this case, in the absence of intelligence,

17 that all of those things -- whereas I have indicated

18 there are things with hindsight I might have done

19 differently -- I might have had the organisation do

20 differently, I do come to the genuine conclusion that in

21 the absence of any intelligence that Mrs Nelson was

22 under threat from the sort -- thugs and cowards murdered

23 her, that it would not have made any difference."

24 He said that:

25 "That's the sad and genuine conclusion that I have

28

1 come to."

2 One has to respect his frankness about that. That

3 is something he would have done differently and that is

4 something which in fact -- it would have been done

5 differently, but would it have saved Rosemary Nelson?

6 We don't think so.

7 SIR ANTHONY BURDEN: Mr Donaldson, could I just come in

8 there, not to cut you on the hoof. You might wish to

9 think about this point, and please do so.

10 Yes, of course, operational decisions are made based

11 on the information available at the time and sometimes

12 those decisions may not be, with hindsight, the right

13 decision. But much of what we have heard in the course

14 of evidence and the very pertinent issue for us, I would

15 suggest, is the attitude displayed by the police towards

16 Rosemary Nelson and I want to really concentrate on

17 attitude displayed at a local level by officers at the

18 local station in Lurgan who dealt with this issue of

19 threat -- and of course we heard from the Deputy

20 Subdivisional Commander on this point -- and whether

21 Mrs Nelson should have received crime prevention advice.

22 I have listened very carefully to what you have said,

23 but there is just one point that has troubled me

24 slightly.

25 You described the watershed in relationships with

29

1 Mrs Nelson being around the time of her handling the

2 Colin Duffy defence. You will recall there was

3 a matter, a threat, prior to this when relations were

4 slightly warmer, when the local crime prevention officer

5 went above and beyond, if I can describe it that way,

6 when there was very little response. But he persisted

7 in trying to get the message across to Mrs Nelson.

8 I just wonder, bearing in mind this watershed of

9 relationships that we are now dealing with post the

10 Colin Duffy matter, why things changed so much and why

11 the same effort wasn't made in this period when there

12 was a cooling of relationships to attempt to get

13 a message across to Mrs Nelson. And this all seems to

14 me to raise the issue of whether it was in fact not only

15 a cooling of relationships but a change in attitude

16 towards Mrs Nelson as well.

17 MR DONALDSON: Well, that raises a number of points.

18 Firstly, in relation to the change in attitude, I think

19 we would have to submit that the change in attitude came

20 from Rosemary Nelson's side, not from the police side.

21 And of course there is a mirror effect. If someone is

22 perhaps being cold with you, you might well be cold with

23 them, and it may well be -- and I'm not saying that this

24 really happened, but there was some comment made that in

25 fact relationships became more formalised. It was no

30

1 longer Rosemary who came to the station; she was

2 addressed as Mrs Nelson. We have heard that kind of

3 thing.

4 Well, there were, I suppose, trying times. The

5 police were aware of what was going on. They were aware

6 of these high profile cases, they were aware of the

7 Garvaghy Road and I suppose as police officers they had

8 to be more circumspect in how they addressed

9 Rosemary Nelson. In fact, it probably led to

10 a situation that, we would suggest, she was treated in

11 a more polite way, perhaps coldly polite, but still

12 polite.

13 As to whether or not that affected the decision not

14 to send an officer to speak to her, I think, sir, we

15 would have to say, with respect, that that didn't come

16 into the picture at all, that in fact there was nothing

17 really further specific to say to Rosemary Nelson, there

18 was no specific threat against her. And I was thinking

19 about this and something was said yesterday: what would

20 the police officer have said to her, and what

21 explanation would he give for attending to speak to her

22 at all. That is if she was prepared even to talk to

23 him. But the reasons why no officer went to speak to

24 her, I think, really arose from the fact that she had

25 already received advice, she knew the position. And not

31

1 only that, it was -- everyone was aware that

2 Rosemary Nelson didn't want any truck with the police.

3 She didn't want to see anybody. There was a lot of talk

4 about the KPPS scheme, she had been asked if she

5 would -- I think someone had asked her to apply. She

6 had made it quite clear that she wasn't going to. She

7 made it quite clear to Mr Eamonn McKee. It is in his

8 statement which I have just checked again last night.

9 He said that it was apparent that she didn't want to do

10 that.

11 Just excuse me just a moment, please. (Pause)

12 I think that certainly it would be our submission

13 that the police attitude was not affected, and I was

14 about to come -- and you will forgive me if I just do

15 this now in relation to some matters raised by Mr Harry

16 McMullen who was the SDC in Lurgan from 1993 to 2000.

17 He described at paragraphs 8 and 9 of his statement that

18 he would deal generally with threat assessments. And at

19 paragraphs 10 to 20, he deals with the threat

20 assessments to Rosemary Nelson in quite some detail. I

21 don't think I need go into that at the moment, but he

22 refers to the report of B123, who said:

23 "I can report there is no record of a threat against

24 Rosemary Nelson here in this office."

25 Rosemary Nelson was said to be at a degree of risk

32

1 in Lurgan, but that everybody was at some risk from

2 something or another. And there was a memo prepared

3 by -- about this. In fact, the memo is RNI-201-204.

4 I'm not going to ask that it be shown but he writes

5 quite a detailed memo about it, and he said:

6 "I recommend that the NIO and the US Lawyers

7 Alliance be asked to supply precise details of any

8 information in their possession about Mrs Nelson so that

9 it can be properly assessed and appropriate security

10 advice given to her if necessary."

11 That memo is dated 11 March at 1998. There is

12 another at appendix B of RNI-101-205 -- there is a note:

13 "American lawyers and pressure groups have raised

14 concerns with the NIO in relation to the personal safety

15 of Rosemary Nelson, solicitor.

16 "The gist of these concerns seem to be that they

17 believe her to be under threat from Loyalist

18 paramilitaries due to her high profile involvement in

19 a number of well publicised court cases involving

20 suspected Republican terrorists. Although no reports

21 have been received from any source threatening

22 Rosemary Nelson and no intelligence exists indicating an

23 active threat, it is important in view of the concern

24 raised with the NIO that attention is given to

25 Rosemary Nelson's office in William Street, Lurgan and

33

1 her home address at 3 Rosemount, Lurgan."

2 THE CHAIRMAN: In the absence of any attention being given

3 to the business or the home address, is that indicative

4 of the local attitude towards her?

5 MR DONALDSON: Well, I think it was because of the matters

6 that had been raised in such a publicised way, and

7 the -- I think that was their view of it. I think there

8 was a view obviously that she was at some risk and,

9 therefore, because of the strong and frequent and

10 voluble representations that had been made, that

11 attention should be given. And in fact, Mr McMullen

12 felt that briefing police units was the best that could

13 be done in the circumstances.

14 Now, you see, there is a judgment made here by

15 Mr McMullen. He is the local officer in charge. It has

16 been landed on his plate and he does what he considers

17 necessary, and this in fact is what he feels ought to be

18 done.

19 THE CHAIRMAN: But it wasn't, was it?

20 MR DONALDSON: Sorry?

21 THE CHAIRMAN: It wasn't done, was it? Attention given to

22 her house, was it?

23 MR DONALDSON: I think that was the instruction. It has

24 been assumed that police units going out -- they were

25 briefed going out that that was an order that would have

34

1 been given.

2 DAME VALERIE STRACHAN: If they followed the instruction,

3 they would have looked at the wrong house, of course.

4 MR DONALDSON: Yes, but I think someone else said that the

5 local police knew where she lived. Although that was

6 a mistake in that document, the local police actively

7 knew where she lived. I think that was mentioned later.

8 DAME VALERIE STRACHAN: Yes. I have to say that

9 I personally was left in some uncertainty about what

10 possible effect this appendix B could have had. We were

11 not clear -- and I'm still not clear -- actually how it

12 was conveyed and whether it was conveyed on a continuing

13 basis.

14 Perhaps, shall I finish my concerns? Secondly,

15 there was the unfortunate mistake about where she lived

16 currently, and thirdly, the attention that was paid to

17 her office, if I understood the evidence that was given,

18 basically they were relying on the fact that the CCTV

19 which covered the police station would also naturally

20 cover her office. And I think it was Mr McMullen who

21 said that from time to time he would go into the room

22 where they were monitoring CCTV and say, "What is

23 happening, chaps?" Which sounds a rather indirect way

24 of ensuring that actually they were using the CCTV in an

25 active way to look at any possible threat.

35

1 MR DONALDSON: That might be, I think, rather a harsh

2 judgment, if I may say so, on the way the police do

3 things.

4 I think it has been perhaps -- it was left in the

5 air a bit. The officer in charge, the SDC in Lurgan,

6 said, "That's the order I gave". We all know -- and I'm

7 sure that in particular Sir Anthony Burden will

8 understand this better than most of us -- that once an

9 order like that is given, the police patrols and units

10 that are going out, they are briefed as to what they

11 should be doing.

12 It is quite clear that that was the order that was

13 given. There is no reason to suppose that it was not

14 given nor acted upon, and we have tended to assume that

15 that was in fact done. In relation to the camera --

16 just forgive me just a moment, please -- yes, in fact

17 I'm reminded that in the statement Mr McMullen stated

18 that he did not write the document but he would have

19 expected the document to be posted. Sorry, that is not

20 the point.

21 He explained that officers would have been briefed

22 as per appendix B -- that's what I've read out -- on

23 a continuing basis. He accepted that the mistake

24 concerning Mrs Nelson's home was unfortunate but that he

25 stated that -- and it is missing the next bit. But

36

1 I believe he said that the local officers knew her

2 address perfectly well.

3 So I think, Dame Valerie -- I hope that covers the

4 point you have raised, but we feel that in fact it was

5 attended to quite diligently. And in relation to

6 popping in and out to check the cameras and so on, the

7 officers there would automatically be monitoring the

8 cameras anyway and anything unusual would be noted.

9 THE CHAIRMAN: Are you moving on beyond the threat

10 assessments now?

11 MR DONALDSON: I'm almost finished that, sir. Yes.

12 THE CHAIRMAN: Because do you submit that the threat

13 assessments, both in February and in September of 1998,

14 were thorough and comprehensive?

15 MR DONALDSON: We do, sir, in general. Now, we are not

16 saying they were perfect, let me say that. They were

17 really consistent with the standards that were prevalent

18 at that time.

19 Now, another point I was going to make in relation

20 to that is that Rosemary Nelson's case was given a lot

21 of attention, in the sense that quite unusually,

22 although she hadn't applied for KPPS, it was being dealt

23 with right at the top by Sir Ronnie Flanagan himself.

24 It was being addressed conscientiously and seriously and

25 that has been emphasised many times.

37

1 Now, it may be said -- I'm sure one can find points

2 to criticise here, but we would say on the overall

3 picture the system was effective, that it was properly

4 administered and that it served this community very

5 well. I'm sure that it -- it obviously didn't succeed

6 in every case because many people were killed.

7 THE CHAIRMAN: Is there any evidence that in making a threat

8 assessment, her alleged affair with Colin Duffy was

9 taken into account?

10 MR DONALDSON: Well, nobody actually said that. I don't

11 think anybody gave evidence to the effect that it was

12 a factor. The point is she was at risk, consideration

13 was given to it and that may have been -- it may have

14 been factored in to some extent. No one, I think,

15 has -- forgive me, I think I'm being corrected here.

16 (Pause)

17 Yes, well, I'll just confirm what my one submission

18 was: that there was no evidence anywhere that it was

19 taken into account. I mean, nobody said, "This is

20 something we are taking into account".

21 THE CHAIRMAN: And there was no evidence either that the

22 intelligence, said to be reliable about her crossing the

23 line, et cetera, was taken into account either?

24 MR DONALDSON: I think that's right, sir. I don't make that

25 point either because -- of course, let me say about

38

1 these two matters that those were very much within the

2 control of Special Branch and especially the second

3 matter you have raised about any unprofessional conduct,

4 crossing the line, that was something that was certainly

5 very confined indeed and was not known -- and that's

6 part of our submission in this, and we have made the

7 submission.

8 This is not something that was known generally

9 within the police force and no one actually said, "Look,

10 special case here you have got to consider. She is

11 friendly with the local IRA chief and she has been

12 crossing the line". And that somehow are matters to be

13 taken into account. I think the answer to your

14 question, sir, is no. No, those matters were not

15 specifically addressed.

16 THE CHAIRMAN: If that is so, doesn't that indicate that

17 there is something missing in the system?

18 MR DONALDSON: No, I don't think so, sir, because unless it

19 was felt by someone that this somehow or other exposed

20 her to any greater risk than that which was generally

21 acknowledged, and I don't think there is any evidence to

22 suggest that that knowledge was such that it might have

23 increased her risk --

24 THE CHAIRMAN: You don't think it would make her more

25 vulnerable?

39

1 MR DONALDSON: If everybody knew, I think it would increase

2 the risk. If everybody knew that she was crossing the

3 line and everybody knew she was doing things she

4 oughtn't to be doing or was committing what was regarded

5 as a criminal offence, that might have increased her

6 risk level, but it is difficult to say on the overall

7 picture how it would.

8 SIR ANTHONY BURDEN: How do you view, Mr Donaldson, the

9 charts that we saw relating to the passage of the threat

10 assessment, both down to the officer that completed

11 it -- and I have no comment to make about his actions --

12 and then the way that the report found its way back up

13 through this hierarchy of bureaucracy, where those that

14 signed it and moved it on seemed to add no value to the

15 process at all -- they certainly added no information.

16 MR DONALDSON: That's true, sir, there was nothing much

17 further added as it went up the line and down the line

18 because it really came back to this: that there was no

19 specific threat against her. And I suppose really that

20 one would only be exposed to the full treatment, as it

21 were, if there was an application for KPPS. Then that

22 would have drawn in everything. And I suppose if

23 Rosemary Nelson had applied for KPPS, it would have

24 encompassed, I think, a much wider scope.

25 But, again, one has to make this point here: that we

40

1 are not just talking about Rosemary Nelson, we are

2 actually considering her in the context of possibly

3 hundreds of other people, and she was one among many.

4 And now this Inquiry is all about Rosemary Nelson, all

5 the focus is on Rosemary Nelson and, with respect, it

6 seems as if no one else existed. And that's not

7 a criticism.

8 THE CHAIRMAN: She was one among many, but she was the only

9 one that we have heard of personally dealt with by the

10 Chief Constable, wasn't she?

11 MR DONALDSON: That's probably true -- well, that we have

12 heard of. We haven't heard of the others, of course.

13 All of those might have gone to the Chief Constable, and

14 I have no doubt probably did, but we don't know how

15 many. And the Chief Constable wasn't asked about that,

16 so I don't think ...

17 DAME VALERIE STRACHAN: Can I just follow through on the

18 question of what the threat assessment did and didn't

19 take into account, and I thought your answer was very

20 helpful on that point.

21 There seems to have been, I think, a difference of

22 understanding about what a threat assessment was. The

23 officers who came and explained it were very clear and

24 very candid about what it did cover and what it didn't,

25 and basically it covered whether there was a specific

41

1 threat. On the other hand, Adam Ingram, when he came

2 and gave evidence, thought that the threat assessment

3 was a highly sophisticated thing which took account of

4 all the information available to the police. There

5 seems to be a mismatch there. Do you accept that?

6 MR DONALDSON: Well, I think that in fact Adam Ingram in

7 particular -- I think he possibly had in mind the KPPS

8 application, where one would get the full treatment, as

9 it were, and that was quite a sophisticated system under

10 KPPS. That drew in the special security people under

11 the direction and control of NIO who would have looked

12 at that very carefully indeed if someone had raised it

13 and then they were given a grading.

14 You see, for example, Breandan Mac Cionnaith and

15 Joseph Duffy, they made applications for KPPS and I have

16 no doubt that they were very carefully considered and

17 given the full treatment, and they were given a rating

18 as well at the end of it.

19 In fact, I'm reminded too that in fact what the

20 Special Branch did -- I don't know whether it is

21 relevant to your answer or not, but I have been passed

22 a note about it -- but that Special Branch did an

23 intelligence assessment, not a threat assessment. Now,

24 I'm not -- I think really the point still comes back to

25 this point that they did an -- if someone said -- they

42

1 were asked if there was a threat, they did the check on

2 that and said, "No threat that we know of", whereas if

3 it had come back and said, "Yes, there is a threat, we

4 have evidence of a threat", then there would be a threat

5 assessment, I presume, to assess the credibility, nature

6 and extent of that threat and what reaction there should

7 be to it and whether or not then there might be

8 a recommendation or the person concerned might be

9 advised to apply for KPPS or whether they qualified for

10 KPPS.

11 THE CHAIRMAN: I think there was a threat in the death

12 threat letter, wasn't there?

13 MR DONALDSON: Coming to the threat letter, well, that would

14 have required some assessment as to whether or not that

15 qualified as a death threat or not. There was a lot of

16 debate about that. That's the one issue, and in fact

17 I will just deal with it now very quickly. That is the

18 issue between the NIO and ourselves as to what happened

19 to the threat note because the point has been made,

20 I think, that if the threat note had been available,

21 things might have been different.

22 Let me deal with the first point, and that concerns

23 whether or not -- or who was responsible or who should

24 be blamed for the threat note going missing. It is

25 quite clear that the threat note was not sent with the

43

1 first letter. The "Man Without a Future" document was

2 sent but not the threat note. The threat note did

3 arrive and a copy of the threat note did arrive -- it

4 must have arrived later and it eventually appeared in

5 the file where it should have been.

6 Superintendent Short carried out an in-depth

7 investigation into that and he wasn't able to find out

8 how that had happened. And without getting involved in

9 too much of an issue about this with the NIO, something

10 had slipped between the cracks, is an expression that

11 has been used, and the threat note didn't actually get

12 there as quickly as it should have done. And how it

13 appeared on the file eventually, one doesn't know.

14 But the one point I would make about this is that

15 one -- I don't think -- and I think I can strongly

16 submit -- one should not draw any sinister conclusion

17 from that. Something, I think -- there was a genuine

18 mistake was made somewhere by someone and it didn't

19 appear in time, and that's all I would want to say about

20 it. And I don't think you will be able to resolve the

21 matter and I don't think the resolution of it would

22 really advance this Inquiry any further.

23 DAME VALERIE STRACHAN: Could I just ask about this because

24 the NIO in their submission went to some trouble to

25 demonstrate that the copy of the threat note that

44

1 eventually did appear on the file could only have come

2 from the NIO, and what I would like to know is does the

3 PSNI accept the logic of the NIO's submission?

4 MR DONALDSON: Yes, it is very logical, very well argued,

5 that's true. But I think the problem is it didn't

6 arrive -- we can't still say when it arrived, when it

7 came. Nobody seemed to be quite sure when it came, but

8 certainly a threat note certainly arrived eventually.

9 Of course, the whole difficulty with the threat note

10 is that in terms of taking that seriously, the threat

11 note had apparently gone to Rosemary Nelson many months

12 before. It was months before it actually filtered into

13 the system. It is quite clear that Rosemary Nelson

14 herself hadn't taken it very seriously and, indeed, the

15 original threat note was not actually -- didn't come

16 into the possession of the police or MIT until, I think,

17 about four or five months after her death. And I think

18 it was then handed over by Paul Nelson.

19 But the threat note -- one can look at it in

20 a number of ways, but the view has been expressed about

21 that threat note that it would not have made any

22 difference to the view that was eventually taken, and

23 that's the view expressed by someone who is an expert in

24 these matters. And it seems that that is a very --

25 I think that is a likely -- very likely that it would

45

1 have made no difference at all.

2 Someone has said that threat notes were common

3 enough and the IRA were the kind of people who never

4 sent you a notice in advance that they were coming to

5 get you the next day, they didn't give you any warning

6 about it -- the paramilitaries.

7 THE CHAIRMAN: Would it be convenient for you to answer the

8 question I put to you earlier?

9 MR DONALDSON: I'm sorry.

10 THE CHAIRMAN: Why were the two threat assessments

11 personally submitted to Sir Ronnie Flanagan? Why was

12 that done?

13 MR DONALDSON: Well, I don't, offhand, know the answer as to

14 why they were sent to him, but it does -- I can't answer

15 that, but it is quite clear that the matter was regarded

16 as being important enough to receive his attention, and

17 he did -- attention was given to it.

18 THE CHAIRMAN: Because was that for political reasons with

19 a small "p"?

20 MR DONALDSON: Well, he wasn't asked about that and I don't

21 know what the answer is, but certainly there was

22 considerable publicity given to this by the NGOs, a lot

23 of pressure was put on, there was an enormous amount of

24 correspondence, there were people hammering on his door

25 quite often to remind him of these things. So naturally

46

1 it was something that he was going to pay attention to.

2 THE CHAIRMAN: Thank you. We will break off until quarter

3 to 12.

4 (11.33 am)

5 (Short break)

6 (11.48 pm)

7 THE CHAIRMAN: Yes, Mr Donaldson?

8 MR DONALDSON: Yes, before I move on to the next topic,

9 I just want to come back to something related to the

10 visit of the crime prevention officer to Mrs Nelson's

11 office in 1993.

12 Now, the note we have -- and I think you will have

13 it somewhere as well although I do not have an RNI

14 number for it -- is that in October 1993 -- the note is:

15 "A man called to Rosemary Nelson's office -- by

16 telephone, I presume -- and said, 'This is the UVF here.

17 Mr L is on his way to get your office. There be a black

18 wreath there and when he gets there, he will be dead.

19 Office records show that on that day L's girlfriend had

20 an appointment to see RN."

21 So it looks as though the threat was against Mr L,

22 who was presumably a client or thought to be a client of

23 Rosemary Nelson and, again, presumably someone from the

24 other side of the political fence.

25 Now, the outcome of that was that a crime prevention

47

1 officer left a letter at Rosemary Nelson's office on

2 1 November, that is very soon after, and attended on two

3 occasions on 2 November but was not able to see Rosemary

4 Nelson. The next day he left crime prevention booklets.

5 Police awaited a response from Rosemary Nelson, but none

6 was forthcoming. So that seems to be the story of that

7 particular event.

8 THE CHAIRMAN: Thank you.

9 MR DONALDSON: Now, I want to come to the matter of

10 intelligence and this is a very important question that

11 has been raised in Mr Myers' letter, and we set out the

12 part of the letter reads as follows:

13 "Was Rosemary Nelson of interest to the intelligence

14 agencies? If so, why? If not, should she have been?"

15 And there is a reference to the family submissions

16 and other submissions:

17 "Was there a widespread belief in the RUC that

18 Rosemary Nelson was an active supporter of PIRA? (b)

19 had acted unprofessionally as a solicitor on PIRA's

20 behalf, and (c) had an affair with Colin Duffy? If so,

21 were these beliefs largely or at least in part founded

22 on intelligence reporting of the kind which the Inquiry

23 has seen and considered? If so, is there any evidence

24 that the intelligence reports on which these beliefs

25 were founded were subjected to objective analysis? Were

48

1 attempts made to confirm the intelligence?"

2 Now, it is necessary, we think, in this submission

3 just to consider the level of the information that was

4 available on the three matters that have been mentioned.

5 And in response to the first part of the question that

6 Rosemary Nelson herself was of no direct interest to

7 Special Branch, it has been stated many times that

8 Rosemary Nelson only came under the Special Branch radar

9 because of her connections with Colin Duffy. And this

10 is obvious from the intelligence, et cetera, which we

11 will look at or consider in a moment.

12 We think it would be incorrect to say that the

13 intelligence agencies had just no interest in

14 Rosemary Nelson. After all, the information was that

15 Colin Duffy was a leading member of PIRA in Lurgan, he

16 was a client of Rosemary Nelson's, he was a tenant in

17 her house in Deeny Drive and they were often seen in

18 each other's company, according to the information, at

19 unlikely times and in unusual circumstances, and these

20 were matters which could not be ignored.

21 It was always quite clear, however, that Colin Duffy

22 was himself a person of primary interest and far

23 surpassing what was a relatively peripheral interest in

24 Rosemary Nelson. There was no evidence to support any

25 proposition, for example, that Special Branch were

49

1 tasking sources to obtain intelligence specifically

2 concerning Rosemary Nelson. In other words, nobody

3 said, "Look, go out and get us what you can on

4 Rosemary Nelson". There has certainly been no

5 indication that anything like that happened, and we

6 consider that we have considered this aspect of the

7 query in our written submissions.

8 In the years prior to the murder, Northern Ireland

9 was of course a very different place from the climate at

10 which prevails right now, and the public order situation

11 around Garvaghy Road had the potential at any stage to

12 escalate into something quite serious. And on many

13 occasions there was serious rioting and attacks

14 throughout the Province happening at the same time, and

15 the Inquiry has heard evidence that GRRC was controlled

16 by sinister elements and for this reason intelligence

17 relating to their activities, including those of

18 Mrs Nelson, were recorded by Special Branch.

19 The Inquiry are aware of the origin and provenance

20 of the secret intelligence collected by Special Branch

21 concerning Mrs Nelson and many other individuals, and

22 each piece of this intelligence was just a small part in

23 a jigsaw of seemingly innocuous information required to

24 be recorded, as it could at a much later date provide an

25 answer to a different problem and potentially go towards

50

1 saving a life or playing a role in an operation.

2 The next query on the list is whether or not there

3 was a widespread belief in the RUC that Rosemary Nelson

4 was an active member --

5 THE CHAIRMAN: Are you moving away from intelligence?

6 MR DONALDSON: No, indeed I'm not, sir. I'm going to be

7 with it for some time.

8 THE CHAIRMAN: Yes.

9 MR DONALDSON: The next query is whether or not there was

10 a widespread belief in the RUC that Rosemary Nelson was

11 an active supporter of PIRA or had acted

12 unprofessionally as a solicitor on their behalf or had

13 an affair with Colin Duffy. And we have to say that the

14 answer to those three questions is really a qualified

15 no, and in order to consider the questions a little

16 further, one needs to consider the intelligence and

17 other material of which the Inquiry is aware. And in

18 doing so, we consider, as requested, that the

19 credibility of the intelligence reports and their

20 validation has to be considered.

21 THE CHAIRMAN: Could I interpose there with this question:

22 is there any evidence that the intelligence on

23 Rosemary Nelson was ever analysed or evaluated?

24 MR DONALDSON: That, I think, I will come to as part of my

25 submission.

51

1 THE CHAIRMAN: Yes.

2 MR DONALDSON: There was, we say, no widespread belief in

3 the RUC that Rosemary Nelson was so regarded in respect

4 of her involvement with the PIRA or the affair with

5 Colin Duffy, because Special Branch tightly controlled

6 intelligence that related to the above matters. And the

7 Inquiry has heard numerous examples and references --

8 often references to the need to know principle being

9 applied in practice. Certainly there were a number of

10 officers within Special Branch who were aware of

11 intelligence that related to Mrs Nelson. However, only

12 those who had a need to know of the intelligence were

13 briefed accordingly because of the roles they fulfilled

14 or the operations they were engaged in.

15 Intelligence such as that referred to would not have

16 been briefed to a wider audience within the RUC. There

17 has been evidence from a number of SB officers and even

18 non-SB officers who said they were unaware of the

19 relationship between Mrs Nelson and Colin Duffy.

20 THE CHAIRMAN: Well, to ask you this, if I may,

21 Mr Donaldson: you emphasise, rightly, the need to know,

22 but surely at least the SIO dealing with the murders of

23 Constable Graham in the June of 1997 -- surely he had

24 a need to know about the intelligence which suggested

25 that Mrs Nelson was a party to false alibis?

52

1 MR DONALDSON: I would only be speculating in answering

2 that, sir, because I don't think anyone was ever asked

3 to deal with that specifically in a question.

4 THE CHAIRMAN: Can you deal with it objectively?

5 MR DONALDSON: I think I can. Looking at it objectively,

6 the evidence -- there was one singular piece of evidence

7 in that case and that was from witness D and witness D

8 knew Collie Duffy. She had recognised him as being the

9 gunman --

10 THE CHAIRMAN: The pressurising piece of intelligence?

11 MR DONALDSON: Yes, yes, that came later, information to the

12 pressurising of witnesses. But in terms of the

13 actual -- the real evidence on it came from witness D

14 only.

15 Now, in relation to whether or not it would have

16 helped them, it may have been of some assistance to them

17 to know -- any information, I suppose, can be useful.

18 I have to say that if I had been the SIO, I think

19 I would like to have known about it. I'm not sure that

20 it might have helped me very much because there was

21 no -- there came in a flood of alibi witnesses, of

22 course, about the case and it might have helped in that

23 regard, but --

24 THE CHAIRMAN: Surely at least the Regional Head of

25 Special Branch or his deputy should have said to the

53

1 SIO, "From the intelligence we have, we suggest you

2 investigate very, very carefully this alibi material,

3 alibi evidence"?

4 MR DONALDSON: Well, I suppose it is -- one can make

5 a comment like that in the cold light of day ten or

6 12 years later. I think at the time it was -- the

7 Special Branch and -- and perhaps it is an illustration

8 of just how tightly they held on to their information

9 that they didn't go to him and volunteer the information

10 to him. I really can't answer why they didn't do it.

11 One can make the point that it might have been

12 helpful to the SIO if he had known about it. I would

13 have to accept that. It could have been helpful to him.

14 Although at one level I don't think that I am surprised

15 that it was not given to him because it may or may not

16 have been helpful to him, and that was a judgment call

17 possibly by the local SB officer in Lurgan. And

18 I suppose on one level it is remarkable enough because

19 this was a murder of a very -- it was just about as bad

20 as -- as bad a situation as one could possibly imagine

21 that the two police officers were murdered in this way

22 and at this time.

23 I suppose everyone would have been aware that the

24 principal evidence was witness D and perhaps it may have

25 been felt, well, if you say that Rosemary Nelson is

54

1 having an affair with Colin Duffy, how will that really

2 assist unless the Special Branch people would have known

3 themselves that there was this matter of the gathering

4 of alibi evidence, which Rosemary Nelson was doing very

5 enthusiastically at that time.

6 THE CHAIRMAN: But the other side of the coin is that one

7 would have thought the probabilities would have been

8 that at least the gist of that intelligence would have

9 been passed over to CID and thus have become more

10 generally known within the local force?

11 MR DONALDSON: Yes, well, I can't say any further. The fact

12 is he wasn't told about it and he didn't know.

13 I'm reminded in fact -- and this is always

14 a difficulty one has -- that the matter was perhaps

15 broached in a closed session with M540, but I think

16 I would just invite perhaps the Panel to have a look at

17 that. I do not have a note of it obviously.

18 THE CHAIRMAN: Yes. I don't know why M540 would be

19 concerned because, as I understood, he was not the SIO

20 of the murder of the two constables.

21 MR DONALDSON: No, he wasn't. But he was the divisional

22 head of the CID, I am reminded, which is a more junior

23 position, and I think it might be -- I would

24 respectfully suggest that --

25 THE CHAIRMAN: We will look at that evidence.

55

1 MR DONALDSON: You see, as I indicated previously, it was an

2 example, we suggest, of the SB, Special Branch, holding

3 on very tightly to what they had and even

4 Ronnie Flanagan himself acknowledged that in his

5 evidence at paragraph 45 of his statement.

6 The next point is that intelligence reports could be

7 described as being part of this puzzle. When all the

8 pieces are put together then one can -- we can say

9 objectively at a number of levels throughout

10 Special Branch. For example, the officer receiving the

11 intelligence, his or her immediate management and

12 regional management and, indeed, Headquarters would all

13 assess the intelligence to decide an appropriate course

14 of action. The assessment actually increased if an

15 operation was commenced, the assessment taking place

16 within TCG. And there is a reference to this -- I think

17 you will find it again in the evidence of B552 at his

18 closed hearing.

19 I think the point really is this: that in relation

20 to analysis -- you did ask, Mr Chairman, about analysis

21 of intelligence. This was -- there was no formal -- it

22 didn't seem that there was any formal, technical

23 analysis of the information coming in. These were

24 experienced people who, as it were, carried on their own

25 checking processes, checking if one piece of evidence --

56

1 one piece of intelligence corroborated another, whether

2 or not there were -- and I intend to come to this in

3 a little more detail later. But I just mention it in

4 passing at the moment, that it was an ongoing assessment

5 by Special Branch themselves. They didn't have

6 technical analysts coming in. There was no single

7 person, as far as I know, who actually addressed it all

8 and did some kind of technical, objective analysis.

9 These are people -- Special Branch were men with --

10 they had their ears to the ground. They knew what was

11 going on, they knew whether it was good intelligence or

12 not. They knew the sources, whether they were reliable

13 or not. It was having a real feel as experienced,

14 professional officers, a real feel for the intelligence

15 that was coming in.

16 THE CHAIRMAN: So you are saying there was no necessity for

17 evaluation or analysis because the men on the ground

18 were so experienced that that was sufficient? Is that

19 what you are saying?

20 MR DONALDSON: There was an ongoing evaluation. We are

21 saying there was an ongoing evaluation as it went up

22 through the chain to the top. People looked at it and

23 considered and nothing would have been necessary.

24 Anything that was important or anything out of line

25 would have been noticed.

57

1 We emphasise that the Special Branch officers

2 dealing with these matters were all vastly experienced

3 in dealing with and assessing intelligence, and in

4 essence they knew they were looking at -- and on

5 numerous other occasions their actions and knowledge of

6 how to assess intelligence had led to the arrest of

7 dangerous terrorists and had saved many lives. And the

8 Inquiry is aware of the large number of police officers

9 engaged in a variety of roles within Special Branch who

10 all recognise the value of corroboration of intelligence

11 material in order to present the best intelligence

12 picture. These same officers were mindful of the need

13 to exercise extreme care when trying to validate

14 sensitive and secret intelligence because of the

15 inherent risks.

16 They had a great deal of success over a period of

17 20 years, and there has been evidence that four out of

18 five operations were thwarted as a consequences of this.

19 Now, nothing succeeds like success. They were

20 successful. That, in turn, is indicative of the level

21 of checking and validating which they did of the

22 intelligence. If it was bad intelligence, not properly

23 checked, it just wouldn't have worked.

24 THE CHAIRMAN: Clearly we are dealing with an alleged rogue

25 solicitor who was giving, according to this

58

1 intelligence, details of RUC officers, false alibis,

2 pressurising witness.

3 MR DONALDSON: Yes.

4 THE CHAIRMAN: And yet you say there is no overall picture,

5 nobody of senior rank, Regional Head of Special Branch

6 saying, "Look, here, we have a potential serious problem

7 here if this intelligence is correct"?

8 MR DONALDSON: Yes. Well, the Special Branch officers were

9 of the view that this was reliable intelligence. What

10 were they going to do about it? I think the point has

11 been made that there was a balancing exercise here in

12 relation to how one would deal with it, and I'm just

13 reminded of something. Yes, in fact I was about to

14 mention this very point which has been helpfully pointed

15 out to me.

16 It appears in one of the statements -- sorry, in our

17 own written submissions -- that the matter was addressed

18 in particular with the witnesses B697 and

19 Chris Albiston, both of whom took the view that the

20 intelligence indicated engagement by Mrs Nelson in

21 criminal conduct. Mr Albiston considered the matter in

22 some detail and the Panel is referred to the exchange on

23 Day 76, 13 November 2008, pages 84 to 100 and why they

24 indicated that any decision on the matter would not have

25 fallen to him. There were a number of long-term

59

1 considerations that have to be taken into account before

2 seeking to exploit intelligence for short-term purposes,

3 including the possible sacrifice of valuable

4 intelligence resources. And he said:

5 "Before you could take any executive action to

6 exploit intelligence from one of these sources in

7 a positive way like prosecution, you would need to give

8 very, very careful consideration to the avenues for

9 saving life in the future, that you might be closing

10 down by this particular operation."

11 Now --

12 THE CHAIRMAN: That's, of course, an entirely different

13 point to evaluating and analysing the intelligence to

14 see if, upon evaluation, upon analysis, it truly is

15 reliable and correct.

16 MR DONALDSON: I thought we had got perhaps to a second

17 stage, sir, in relation to the -- you mentioned about

18 upon receipt of this intelligence there would be

19 a problem of what might be done about it. That's the

20 question I was answering in referring to what

21 Mr Albiston said, because he could see that -- you don't

22 sacrifice the future on the altar of present

23 convenience, as it were, by exploiting that intelligence

24 in order to pass it over to the CID to investigate

25 a criminal offence against Rosemary Nelson. That was

60

1 a value judgment with which we would fully and

2 respectfully agree was the right one.

3 SIR ANTHONY BURDEN: Can I just comment on that? Here was

4 a solicitor, if we are to believe what has been said

5 about her, who at this stage had secured the release of

6 a man convicted of one killing and had successfully

7 prevented the charging of that same man for the murder

8 of two police officers, which, as you quite rightly

9 said, in terms of the police service, would be at the

10 heart of concerns.

11 If that behaviour were to be allowed to continue and

12 thwarting the RUC's attempts to charge and convict

13 terrorist murderers, wouldn't that be a factor that

14 would be equally as important as the considerations for

15 the future ability to save life because it seems to me

16 to be incomprehensible that that situation would or

17 should be allowed to continue?

18 MR DONALDSON: I think, if I may say with respect,

19 Sir Anthony, that is probably dealt with by Mr Albiston.

20 But I'll develop just a little further --

21 SIR ANTHONY BURDEN: He responded to it, yes.

22 MR DONALDSON: Yes. One has to consider -- although

23 Mrs Nelson had procured, as it were, the situation where

24 the charges against him were dropped, they were dropped,

25 it has to be said, on the direction of the

61

1 Director of Public Prosecutions. It was really

2 a campaign conducted by her. There was nothing

3 inherently -- well, there was nothing obviously criminal

4 about conducting her campaign, publicity campaign, and

5 in achieving what for her client was certainly

6 a tremendous result.

7 The fact that the police then might have said, "Oh,

8 well, we had better now look at this. Can we not stop

9 this. The only one way we can stop it really is to have

10 a successful prosecution against Rosemary Nelson, have

11 her struck off as a solicitor and that would put an end

12 to that."

13 Now, one can see the enormous difficulties in doing

14 that and one is driven back, therefore, to the situation

15 of saying, well, we still have to use our sources, we

16 still have to put our sources at risk. Is that really

17 worth the candle? And I think realistically it wasn't

18 worth the candle because to successfully prosecute

19 someone in those circumstances would, I may say as

20 a criminal lawyer, be extremely difficult to get

21 evidence unless you are prepared, as it were, to put

22 your source in the witness box. That would be the only

23 possible way you could really achieve that and one could

24 see that was just not going to be on the cards, ever.

25 So, therefore, it wasn't an option.

62

1 SIR ANTHONY BURDEN: I mean, when you -- I mean, I may be

2 jumping on your words here, but when you say in terms of

3 Mrs Nelson's performance in relation to her defence of

4 Colin Duffy that it was a tremendous result, are you

5 saying that in relation to the actions taken by her in

6 that particular case was not one of the contributory

7 parts of the intelligence relating to what was suspected

8 about her behaviour? What you are saying is that her

9 defence of Colin Duffy was above board and --

10 MR DONALDSON: No, no, I'm not saying that, that it is all

11 above board. I'm not seeking to pick on any particular

12 criticism at the moment. There are things that

13 certainly we would criticise and I'll draw attention to

14 a few matters shortly.

15 We think that -- well, at least Mr Albiston and

16 others took the view that she was crossing the line.

17 Certainly there were features about her conduct, for

18 example -- one startling example which I think you have

19 mentioned yourself, sir -- or perhaps the Chairman

20 mentioned it -- that there was evidence, intelligence,

21 that she was actually putting pressure on witnesses.

22 Now, that would be a very unprofessional piece of

23 conduct, to put pressure on witnesses, if it were true.

24 There was another -- the manner in which she apparently

25 collected alibi evidence and went around, even in the

63

1 words of Colin Duffy, scooping up witnesses around

2 Kilwilke in order to create an alibi for Colin Duffy.

3 And there are other things as well. But I wasn't really

4 proposing to go into that in any detail. And

5 I certainly think your question, Sir Anthony, really was

6 it all above board -- I think the answer is on the

7 intelligence, no, it was not all above board.

8 THE CHAIRMAN: Before we leave that subject, is not all the

9 intelligence on Mrs Nelson that is suggested that she

10 had crossed the line, doesn't it all contain a latent

11 ambiguity? For example, on the question of the alibi,

12 false alibis, if a solicitor is instructed by her client

13 that he has an alibi, isn't the solicitor under a duty

14 to seek witnesses that support that alibi?

15 MR DONALDSON: Yes, there is a detail of that. If one looks

16 at Colin Duffy's own statement, he deals with that very

17 point. He said all he told her is that he was elsewhere

18 at the time. He didn't seek to identify any people who

19 could support his alibi, which is very significant,

20 because if, as a criminal lawyer, a client says, "Well,

21 I have an alibi", the first thing you would say is,

22 "What is your alibi," "I was out drinking with some

23 friends in a pub." "And who were your friends? Give me

24 their names."

25 THE CHAIRMAN: But if the client says, "I was near a bus

64

1 stop," without mentioning any friends, the solicitor

2 would still be under a duty, wouldn't he, to take steps

3 to see if anyone had seen him near the bus stop?

4 MR DONALDSON: Well, he didn't say anything about where he

5 was, at a bus stop or anywhere else. He didn't actually

6 give any geographical location to her where he was. He

7 just said, "I wasn't there". That's all he said in his

8 statement. He didn't give her any information about it.

9 But the idea then of going out into the highways and

10 byways to collect alibi witnesses seems to be -- it is

11 incomprehensible, and one wonders what or who she would

12 be expecting to get in those circumstances.

13 THE CHAIRMAN: But if the prosecution is supported by the

14 evidence of a witness whom the solicitor suspects to be

15 unreliable, isn't that solicitor entitled to interview

16 that witness and to interview the witness's family and

17 associates?

18 MR DONALDSON: Sorry, I missed the first part of your

19 question, sir, sorry.

20 THE CHAIRMAN: If a solicitor suspects that a prosecution

21 witness is unreliable, isn't a defence solicitor

22 entitled to interview that witness, interview members of

23 the family of that witness and associates of that

24 witness?

25 MR DONALDSON: I know there was a dispute about this

65

1 earlier, but that is not our experience in this

2 jurisdiction. And if there is a witness -- if there is

3 a prosecution witness -- and you know, for example, take

4 witness D as an example or someone else -- there would

5 be no right for a defence to interview that particular

6 witness, especially if they are -- more directly, if

7 their statements have been taken from them by the

8 prosecution, say their names were in the committal

9 statements and a statement is taken, the defence would

10 have no right, unless the prosecution permitted them, to

11 speak to that particular witness.

12 THE CHAIRMAN: You promised me a paper on that.

13 MR DONALDSON: I did, and I am afraid I didn't keep my

14 promise.

15 THE CHAIRMAN: Are you going to keep it in future?

16 MR DONALDSON: What promise had you in mind, sir?

17 THE CHAIRMAN: You know, that in the next day or two you

18 present this paper?

19 MR DONALDSON: I will certainly --

20 THE CHAIRMAN: I had an idea that Mr Harvey didn't --

21 MR DONALDSON: He didn't apparently agree with that. I

22 understand that. I apologise, I have overlooked that

23 but certainly I didn't develop it much further. But the

24 solicitor would not -- would not normally be entitled to

25 go and interview a prosecution witness. And in fact,

66

1 there is a piece of intelligence about that as well, if

2 I recollect rightly, where the intelligence was to the

3 effect that Rosemary Nelson seemed to be aware of that

4 herself and didn't want it to be known. But I will

5 perhaps identify that piece of intelligence shortly.

6 THE CHAIRMAN: Now, dealing with the reliability of this

7 intelligence, doesn't it depend an awful lot on the

8 subjective interpretation of the comment by either

9 a human source or a comment obtained by some covert

10 device that the person doing the interpretation may

11 interpret remarks made incorrectly?

12 MR DONALDSON: Well, let me just deal with that. There is

13 a -- I wanted to make a point about that, sir,

14 particularly and that has just taken me a little out of

15 my stride here at the moment but I'll deal with it now,

16 though.

17 For example, we have prepared a list -- I'm not

18 going to hand it in because you will see that in the

19 very thorough schedule prepared by the family's

20 submissions, they have set out in detail a large number

21 of intelligence documents dealing with various aspects

22 of Rosemary Nelson, Colin Duffy and various other

23 matters.

24 Now, in relation to, for example -- and this is the

25 first -- concerns the alleged affair between

67

1 Rosemary Nelson and Colin Duffy -- we have in fact

2 something like 18 pieces of intelligence. Now, let me

3 say initially before I deal with this, I think I said at

4 one stage in my submission yesterday that you should

5 perhaps make a finding of fact about the affair. I

6 don't think -- I didn't intend to say that. What

7 I intended to say was that it is a matter for you -- and

8 we are not saying you should or should not make

9 a finding about it. It is a matter for you and no doubt

10 you will make some assessment about it based on the

11 points we are talking about relating to reliability and

12 testing and so forth.

13 Now, it is quite right that there are some pieces of

14 intelligence [redacted] which do require

15 an element of analysis, and of course there could be

16 room for error and mistake. But as I emphasised, these

17 were experienced officers checking all the time to

18 ensure as far as possible that it was reliable.

19 Another matter which I cannot deal with but you can,

20 and that is -- if you take, for example, one of the

21 cover sheets and the first one I'm looking at here --

22 and it may not be perhaps the best example -- is -- just

23 excuse me just a moment, please. (Pause)

24 Well, the first one is actually -- it is on

25 a slightly different point, where you have

68

1 a surveillance situation. [Redacted]

2 [redacted]. It is RNI-541-128 where it says:

3 "Colin Duffy met up with Rosemary Nelson on a number

4 of occasions. On one such occasion, [blank] Duffy has

5 parked his car in the Demesne Avenue area of Lurgan.

6 Duffy then got into Nelson's car and the two drove off."

7 That is a bit of hard factual information [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]. And, of course, we

17 have to stress very strongly that the intelligence was

18 legitimately gathered in a proper fashion over a number

19 [redacted], and you have heard

20 details of this matter in open and also in closed

21 session.

22 [Redacted]

23 [redacted].

24 MR PHILLIPS: I'm going to interrupt at this point. I

25 haven't stood up until this point, but we must all

69

1 obviously be very, very careful on this particular topic

2 and specifically in making any reference to closed

3 material which is and should remain, please, closed.

4 MR DONALDSON: Yes. Well, I'm deliberately not disclosing

5 very much. In fact, I'm not really disclosing anything.

6 I'm really indicating to the Inquiry that you are in the

7 position, from the information you have, to perform

8 a particular exercise and I don't think that is giving

9 anything away.

10 THE CHAIRMAN: Move aside from that for a moment. But if

11 there is a comment that needs interpretation by

12 a Special Branch officer, isn't there a risk at least

13 that it may be coloured by the preconceptions or

14 prejudices of that Special Branch officer?

15 MR DONALDSON: That's a possibility but I think a very

16 remote possibility, sir, because it presupposes that

17 a Special Branch officer is coming with any prejudice in

18 his mind and it also means that that piece of

19 intelligence will also be checked off up the line by

20 other people. The handler will record what the source

21 tells him and there is very little room, I may say, for

22 error. One is, may I say with respect, clutching at

23 straws, in order to diminish the reliability,

24 authenticity of this intelligence which had come in.

25 DAME VALERIE STRACHAN: Could I just say, I understood the

70

1 Chairman's question to be related not to the alleged

2 affair but to the pieces of intelligence relating to her

3 supposed crossing the line.

4 MR DONALDSON: Oh, yes.

5 DAME VALERIE STRACHAN: And you answered solely in terms of

6 the alleged affair. I think it is not the same issue.

7 The question of somebody comes in with a piece of

8 intelligence, there is then a comment by the handler,

9 and if I understood the Chairman correctly, it is the

10 question of: is the comment possibly infected by any

11 pre-judgment that the officer may have?

12 MR DONALDSON: I'm accepting, Dame Valerie, that that could

13 in fact be so. I'm not ruling -- there are human

14 resource, everything is liable to human error and that

15 is a possibility. But I think it is such a relatively

16 remote possibility as not to carry any particular

17 weight.

18 It would be our submission that the intelligence was

19 all correctly and properly gathered and assessed by

20 responsible, experienced people whose opinions -- there

21 is no particular reason to suppose that they were

22 influenced adversely. They are professional people.

23 They are collecting intelligence concerning all sorts of

24 people. They collected, after the death of

25 Rosemary Nelson, a lot of intelligence concerning those

71

1 who might be responsible and this is passed on to MIT.

2 [Redacted]

3 [redacted] it would be

4 wrong to diminish the reliability and good provenance of

5 that kind of material.

6 Now, as I indicated, I happened to pick up the first

7 bundle of papers related to the alleged affair between

8 Rosemary Nelson and Colin Duffy. I'm not going to go

9 through that. Nor, indeed, am I going to go through the

10 large amount of intelligence related to the alleged

11 unprofessional conduct of Rosemary Nelson. Again, in

12 the family's submission they have prepared a very

13 extensive schedule of such documents and we would simply

14 invite you to look at that.

15 The real issue to be considered is whether or not

16 the Special Branch officers who took the view that she

17 had an affair, or took the view that she was perhaps

18 crossing the line, that on the intelligence they had,

19 they were entitled to take that view.

20 Now, I make a distinction here. I'm not inviting

21 you to find as a fact that she was guilty of having an

22 affair or that she was guilty of unprofessional conduct.

23 Our submission is to the effect that on the material

24 available that was a perfectly understandable and

25 justifiable view for them to reach. And I'll leave it

72

1 at that in relation to the matter of the intelligence

2 and the gathering of that intelligence.

3 THE CHAIRMAN: In relation to crossing the line?

4 MR DONALDSON: Yes.

5 THE CHAIRMAN: Even with a complete absence of evaluation or

6 analysis?

7 MR DONALDSON: Yes, you have said that to me before, about

8 that. I don't, with respect, accept that, for the

9 reasons I have given: that this intelligence is subject

10 to a lot of checking by experienced people and it would

11 be wrong, we would respectfully submit, to reject on the

12 basis that it wasn't subject to the attention of some

13 analyst or someone carrying out a particular exercise on

14 some other point -- these are men handling thousands of

15 pieces of intelligence, experienced people, men with

16 a lot of experience who had established their success

17 rate. They had established their credentials as

18 Special Branch officers and now there is an attempt --

19 and I'm not saying this is on the part of the Panel, but

20 there seems to be an attempt to diminish the value of

21 their contribution and their view of the intelligence.

22 I have jumped a lot ahead of where I intended to be,

23 and I say, sir -- and I have probably covered a good

24 deal of what I had intended to cover in more ordered

25 fashion.

73

1 There are a number of points I would like to make

2 that -- there was an issue arose later as to the

3 apparent conflict between Sir Ronnie Flanagan and the

4 Special Branch officers as to what view might be taken

5 of the intelligence. And you will recollect that

6 Sir Ronnie Flanagan, when confronted with the

7 intelligence at a later stage, expressed the opinion

8 that he would have drawn different conclusions from

9 those drawn by senior officers in Special Branch.

10 Now, it is difficult for us to explain that

11 disparity of opinion, but we would venture some

12 suggestions. The first one is -- and I have indicated

13 that he was the Chief Constable of a force of

14 12,000 people and he was a busy man, but he is being

15 asked to express his views many years later based on

16 documents more recently shown to him. Whereas in

17 contrast, the Special Branch officers, this was their

18 business, that was their work, they were concentrated on

19 that all the time. They obviously knew most, if not

20 all, of the Special Branch officers concerned and were

21 able to evaluate the information as it came in and after

22 discussion with each other. They were highly

23 experienced people, consummate professionals who had

24 a passion for their work.

25 All the senior Special Branch officers who gave

74

1 evidence on these issues -- and you have heard them

2 yourselves, you have been able to form a view of what

3 you think of them, and may I say, with respect, that you

4 might well form the view that they were people speaking

5 sincerely and honestly who were doing a good job for

6 this community, helping to save lives.

7 You have -- I have referred briefly to the matter of

8 their view of Rosemary Nelson's unprofessional or

9 illegal conduct. You have heard evidence about this

10 from Chris Albiston, B597 and B567. You have also, dare

11 I say it, heard evidence in closed hearings and you will

12 be able to rely on that as well. And there was,

13 I think, in relation to the alleged affair -- there was

14 other material as well, which in fact may assist you in

15 deciding whether or not the officers concerned were

16 entitled to take the view that they took.

17 The point has been made, I think, in rather

18 a spurious way that this was all rumour about these

19 matters, just rumour. You can try to write it off as

20 rumour. That was just absolute nonsense. These men

21 were not dealing with rumours, they were dealing with

22 information which they had received, not just from CHISs

23 but from observations and sightings as well of

24 Rosemary Nelson and Colin Duffy in circumstances for

25 which you will draw your own conclusions as to whether

75

1 or not their views were justified.

2 Now, I have greatly abbreviated that section,

3 I think, sir, because I don't want to really eat into

4 the time too much of someone else. Before I come to the

5 obstruction issue, there is just one further matter

6 about NGOs at this time as well, which I want to mention

7 rather quickly: that after the arrest of Colin Duffy,

8 there was a huge amount of NGO activity. I want to --

9 when one looks -- I think generally speaking, my

10 submission about the NGO activity and their evidence is

11 that it should not be taken very seriously, for the

12 simple reason that they were retelling what they had

13 heard.

14 I draw particular attention, I may say, to some

15 activities of Mr Lynch, some letters. For example, on

16 16 October he sent out no fewer than six letters to

17 Simon Rogers, to Henry Hyde, chairman of the

18 United States House of Representatives, to the deputy

19 chief executive ICPC, the NIO and some others.

20 Let me give you a flavour of the kind of thing

21 Mr Lynch was saying. He said, for example, in his

22 letter to Henry Hyde, that:

23 "The writer demands to know why the FBI continues to

24 spend American taxpayers' money in funding the RUC (this

25 discredited foreign force)."

76

1 He alleges that:

2 "The RUC is unleashing dogs on patients at

3 a hospital emergency room and beating unarmed peaceful

4 citizens senseless."

5 In the letter to the deputy chief executive ICPC, he

6 refers to:

7 "... widespread abuse committed by the RUC of

8 unresisting peaceful citizens."

9 That's the flavour of the kind of things Mr Lynch

10 was writing, which in fact gives you some idea of the

11 value that that might be to -- and I consider it is not

12 very valuable at all.

13 Another example of this sort of thing arises in

14 relation to the statement of Jean Forest. She was not

15 called as a witness. In paragraph 5 of her statement

16 she talks about having to check up on judges to prevent

17 them acting improperly. She said the RUC were involved

18 in the killing. She writes letters to Mo Mowlam saying

19 that Duffy is really an innocent man. She writes

20 letters on 19 July 1996 to the LCJ and Mr Mayhew about

21 the lines of appeal in the fairly blatant attempt to

22 influence what was going on.

23 You heard Jane Winter giving her evidence. She has

24 done it with crusading zeal. A lot of the material she

25 has written, which you will have seen, is really quite

77

1 inflammatory and unfair and unreasonable. And, again,

2 she is at the best, in any event, a conduit for material

3 coming from other sources. And in fact, the main source

4 of all of that information was the Lurgan line. That

5 seemed to be the baseline for it all after Colin Duffy

6 was arrested.

7 Let me come now to obstruction, the obstruction

8 issue. Let me say at the outset in relation to the MIT

9 matter of obstruction, our submission on the MIT's

10 performance of its task is set out in paragraph 11 of

11 our written submissions and it is not necessary or

12 appropriate for us to make submissions on the due

13 diligence issue, and we can't do that, and I think

14 I made that clear. We acknowledge that those involved

15 in the investigation have demonstrated an absolute

16 commitment to bringing the culprits to justice and

17 I think I made a remark yesterday concerning the

18 victimology.

19 We do not make any submission at all about

20 victimology, and I think I may have been understood to

21 be critical on the victimology issue. We do not make

22 any criticism of MIT in relation to the victimology

23 issue. We know that has been done by Mr Ayling and you

24 will have to consider what weight you give to that.

25 I think really the main issue between MIT and the

78

1 police concerns this matter of the intelligence.

2 Mr Myers in his letter of 23 April posed two questions:

3 was there non-disclosure of relevant and significant

4 intelligence to the MIT on the part of the RUC? And

5 (ii):

6 "If so, what were the reasons for that and did any

7 such disclosure have an adverse impact on the progress

8 or effectiveness of the investigation?"

9 Now, the Panel is aware that M540 identified

10 13 items of intelligence that he said were not handed

11 over and that were relevant and significant to the

12 murder investigation. The PSNI's submissions on this

13 matter are set out at paragraphs 11.27 to 11.37 of the

14 submissions. It will be evident that the PSNI's

15 position is that the evidence does not justify a finding

16 that material was not in fact provided, and we set out

17 several points for the Inquiry's consideration at

18 paragraph 11.30.

19 But before turning to the substantive question of

20 whether relevant material was in fact not provided, we

21 should perhaps deal briefly with the important question:

22 if there was non-disclosure, what was the reason. It is

23 submitted that the Inquiry has uncovered not a shred of

24 evidence that would indicate that non-disclosure, if it

25 occurred, was the product of bad faith or impropriety.

79

1 Three points may be made. Firstly, none of the SMT

2 witnesses suggested any possibility of a sinister

3 motive. Secondly, the Inquiry has had the benefit of

4 hearing from those directly involved in the process of

5 disclosure, most significantly B503, B567 and B629. And

6 it can, we submit, be satisfied of their absolute

7 commitment to assisting the investigation.

8 Thirdly, when discussing the phone box intelligence,

9 counsel for the MIT, Mr Griffin himself, used the

10 expression "slipping through the net". No witness has

11 suggested to the Inquiry that a stronger description

12 should be applied to the matter. Counsel also referred

13 to another context in his submissions to the importance

14 of having regard to:

15 "... the overall picture, which is that SB disclosed

16 to the MIT more intelligence than had ever really

17 happened before in the context of a criminal

18 investigation."

19 It is submitted, therefore, that even if the Inquiry

20 accepted that some material did not go across, there is

21 no basis whatsoever for a suggestion of malfeasance. We

22 simply say that having regard to the matters set out in

23 paragraph 7.30, the Panel would not with confidence make

24 a finding that the material was not in fact provided.

25 Mr Port himself accepted that he could not say with

80

1 certainty whether or not he had seen a particular

2 document ten years ago and he accepted that the two

3 items on M540's list rang a bell with him, to quote his

4 words.

5 In oral submissions, counsel for the MIT sought to

6 copper-fasten the theory of non-disclosure by zoning in

7 or zooming in on two of the so-called missing item: the

8 phone box, item 4; and the suspect developing a UCBT

9 device.

10 In considering the former item, counsel referred to

11 the recently submitted statement of B503 and enclosed

12 documentation. Counsel indicated that the documentation

13 showed the process of dissemination working well in the

14 early stages with B567 dealing with the matter, while

15 continuing with his day job, and then B503 being brought

16 in to assist. Counsel said that there was a period

17 after B567 dealing with the matter and before B503 came

18 on the scene where:

19 "One sees a number of pieces of intelligence in the

20 box, but they are not associated with any briefing sheet

21 and one doesn't see marked-up versions of those

22 documents that you might expect in preparing for being

23 put into a briefing sheet."

24 And one of those pieces of intelligence is this one

25 here, item 4 on the list and what that might suggest.

81

1 And I'm not going to put it higher than that, that this

2 is a piece of intelligence that has somehow slipped

3 through the net between B567 dealing with these matters

4 and B503 coming on the scene. It fits in

5 chronologically well that that is one interpretation of

6 what one sees from the box of documents.

7 In that respect, counsel chose his words obviously

8 with care but there is one possible interpretation of

9 the material in the box on which three points might be

10 made. Firstly, what the material does show is the

11 degree of work that was being done by Special Branch on

12 the ground to assist the Inquiry. The material can't,

13 of course, prove that that particular item was handed

14 over, but looking at the material as a whole, it would

15 seem to defy logic that that item would not have been

16 communicated in some form given the scale of the effort

17 to assist.

18 Secondly, insofar as the submissions suggest that

19 there was some kind of lull in the process of liaison

20 with MIT, it is not supported by the intelligence. The

21 intelligence is dated April 1999 and there is nothing in

22 the evidence to support the proposition that a gap might

23 have occurred prior to the arrival of B503.

24 Thirdly, it might be noted that the next item of

25 intelligence in the box is also dated April 1999 and

82

1 there does not appear to be any suggestion that it was

2 one of the so-called missing items. Two people from the

3 Mourneview Estate were involved in the RN murder. More

4 generally, however, it is accepted that the new evidence

5 of B503 supports the proposition that the item was in

6 fact disclosed, but it is not necessarily conclusive of

7 that fact.

8 The Panel, however, should carefully consider the

9 evidence of B567 himself on the matter, and when

10 addressing the issue on Day 112, page 104 he said:

11 "If it wasn't handed across, it was purely

12 overlooked or mistaken, but I think it was. I have

13 a recollection in the back of my mind of having some

14 discussions because it was relevant, I should say. The

15 phone box, we knew there had been a phone call made and

16 that was relevant and I don't see why we wouldn't have

17 handed that over, and I believe that we did. If there

18 is no record of it, then I shall have at the back of my

19 mind a recollection that I had some discussions with

20 them on it."

21 He is then asked whether or not it might have fallen

22 into the category which we talked about earlier in

23 relation to intelligence passed to MIT, where they got

24 enough, and he said:

25 "I would have no reason to keep that back because it

83

1 was in the open domain that there had been a claim and

2 I don't believe that it could have caused -- it would

3 have been different if that talked about a specific

4 telephone box at a specific location and it would be

5 followed up by the murder inquiry. That's why I believe

6 that we did hand it across."

7 And you have to bear in mind the very important

8 point agreed by M540 that he and B567 knew each other

9 very well, trusted each other very well, and they were

10 both men who obviously -- sound men who gave their

11 evidence well. And the evidence of both of them was

12 very believable indeed and one can't understand why they

13 would not -- because of that position of trust, that the

14 information, all information would not have been passed

15 over.

16 Perhaps really in relation to this issue about the

17 intelligence which it was thought was not handed over,

18 it may not at the end of the day greatly assist the

19 Inquiry. It is, however, notable that counsel for MIT

20 did not address the point made at paragraph 11.30 --

21 that's point 4 of our submission -- namely that the item

22 of intelligence concerning the phone box emanated from

23 a source to whose file Mr Port had full access.

24 We do think that perhaps maybe, if I might be mildly

25 critical, that rather much has been made of so-called

84

1 missing -- or intelligence not being handed over.

2 You heard the evidence of B629 and, again, I invite

3 you to consider the evidence which he gave on this

4 matter in closed session. It is quite important.

5 The second item on which counsel focused was the

6 item of intelligence suggesting that a suspect had two

7 years previously developed a UCBT facility. Counsel

8 took the opportunity here to address our submission that

9 the Panel should look carefully at the notes attached to

10 the intelligence summary, which the MIT had in fact

11 reviewed. He singled out the sentence:

12 "This document contains intelligence which has been

13 assessed to be relevant to the Inquiry."

14 He said that the SMT took that at face value and

15 they were entitled to do so because Special Branch were

16 not operating blindly; they were educated by Mr Kinkaid

17 and SMT on what was relevant and SIO simply does not

18 have time to go off with every profile and root around

19 an SB file. I wonder why not.

20 With respect, this was not the profile of a person

21 on the margins of suspicion. It is perhaps regrettable

22 that this issue was not explored with the relevant

23 witnesses. MIT and PSNI are agreed, we think, that

24 a general observation vis--vis the evidence is that the

25 issues were being dealt with somewhere to an extent

85

1 orally, and that some matters perhaps slipped through

2 the cracks in terms of their full investigation by the

3 Inquiry. But we would say, however, that the Panel

4 might take the view that the investigator might in fact

5 wish to conduct some further research in respect of

6 intelligence relating to the most significant suspects.

7 This is the precise reason for the important caveat

8 or invitation to the investigator to inspect all

9 intelligence relating to the person in question, even if

10 the investigator would not have been given free rein, as

11 counsel suggested, in that national security

12 considerations might apply to certain specific items of

13 material that could not conceivably have applied to this

14 particular item of intelligence.

15 In relation to the file on Rosemary Nelson and

16 Operation Shubr, the simple position of the

17 Special Branch witnesses who have given evidence to the

18 Inquiry is that all relevant material concerning

19 Mrs Nelson and that operation was in fact supplied to

20 the MIT.

21 If I might digress slightly for a moment here, there

22 was an issue about the file: was there a file on

23 Rosemary Nelson? We have heard from different

24 witnesses, yes, there should have been a file; no, there

25 wasn't a file. And the Assistant Chief Constable,

86

1 Mr Finlay, said there was no file.

2 THE CHAIRMAN: He could find no file.

3 MR DONALDSON: Yes, indeed, he could find no file. Now,

4 I think the point we would make about it is this: that

5 we would submit that nobody ever said they saw the file.

6 I may be wrong about that, but nobody ever said they saw

7 a file marked "Rosemary Nelson, top secret." That sort

8 of thing. Nobody ever saw such a file and it seems

9 unlikely that such a file ever existed, and if it did

10 exist, where can it go? Did somebody just throw it in

11 the dustbin, dispose of it, hide it? We don't think so.

12 Any information concerning Rosemary Nelson, whether

13 in connection with herself or Colin Duffy, it was all

14 there on the records, masses of it, all on the records.

15 So in a sense -- but maybe it wasn't pulled together in

16 a file that one could grip and hold. But we don't

17 think, with respect to the Panel, with respect, sir,

18 that any adverse inference should be drawn about the

19 fact that no file was --

20 THE CHAIRMAN: It is just a matter of chance that the system

21 broke down in her case; is that it? The system was that

22 there should have been a file but in her case there

23 wasn't one and that's merely a matter of chance, as it

24 were?

25 MR DONALDSON: Well, I'm not prepared, I think, to accept at

87

1 this stage that it was a breakdown of the system, and if

2 there was any breakdown of the system, it does not

3 affect anything, we would suggest, with which this

4 Inquiry is concerned, unless you felt that there was

5 something sinister behind this, and I don't think you

6 should.

7 Now, I'm almost finished sir, I just need a very few

8 minutes.

9 THE CHAIRMAN: We will adjourn now until 2 o'clock and we

10 have one or two matters we wish to raise with you.

11 MR DONALDSON: Very well, yes.

12 (1.00 pm)

13 (The short adjournment)

14 (2.00 pm)

15 THE CHAIRMAN: Yes, Mr Donaldson?

16 MR DONALDSON: Yes, thank you, Mr Chairman. I just want to

17 finish -- and I can do this fairly quickly -- finish the

18 main point relating to the obstruction issue. The last

19 question to be addressed is whether any such

20 non-disclosure, if it occurred, had an adverse impact on

21 the progress or effectiveness of the investigation.

22 Two separate points arise here. Firstly, the first

23 point is it must be emphasised that the items of

24 intelligence identified by M540 are confirmatory of the

25 MIT's main line of investigation. Mr Egan in his

88

1 closing submissions put the point strongly, and he said:

2 "None of it casts any doubt on the early validated

3 intelligence. In truth, it provides powerful

4 corroboration of the intelligence they already had and

5 Mr Provoost told you as much."

6 And M540, it will be recollected, also confirmed in

7 his evidence that none of the 17 items would have made

8 the MIT reconsider the view of the main suspects.

9 So in other words, right from the beginning the --

10 Special Branch had provided intelligence identifying

11 effectively the main suspects. Ten years later that

12 still remains the situation. And MIT conducted on any

13 view a most thorough, painstaking investigation. They

14 looked at every conceivable issue and very significantly

15 they never found anything which in any way connected the

16 RUC with the killing of Rosemary Nelson, not even

17 remotely, it may be said.

18 The second point concerns the possible investigative

19 leads that the material might have provided. Now, we

20 have set out our views on this matter at 11.34 and 11.36

21 in our submissions. It is of note that the MIT have not

22 challenged our submission. Now, there are only a number

23 of items that could possibly have offered new

24 investigative leads. We put five items in that category

25 but we suggested that when it comes to the crunch, there

89

1 was really only the telephone box that had been singled

2 out as offering what might have been seen as a way

3 forward.

4 May I just pause there and say this: that in

5 relation to that telephone box, if it had ever been

6 traced, what was going to be found on it? Possibly some

7 fingerprints, thousands of fingerprints. It was going

8 to be a very remote matter indeed and that would have

9 perhaps at best possibly have identified -- it was

10 a hundred to one chance, a thousand to one chance -- it

11 might just have identified who could have made the call,

12 and we think it was really an impossible task. And

13 finding the telephone box might also have been a very

14 difficult task.

15 So we maintain the view that the potential

16 significance of that intelligence should not be

17 overplayed and I think there has been possibly

18 a tendency to do that. The fundamental point is that

19 there is nothing in the intelligence that identifies an

20 actual telephone box that could have been forensically

21 examined. And even if that had occurred, we must, with

22 respect, question the Chairman's use of the phrase

23 "golden hour" in this context because the intelligence

24 was after all dated April 1999, which was possibly in

25 the region of a month after the murder.

90

1 To summarise our submissions in this matter, the

2 material before the Inquiry does not justify a finding

3 that relevant material was not disclosed. Even if one

4 were in a position to say that certain items were not

5 disclosed, the explanation must be an entirely innocent

6 one. And finally, any suggestion that the material

7 would have changed the course of the investigation

8 cannot and should not be maintained.

9 Now, in respect of the work of the MIT, it will be

10 realised now that the work of the MIT into the

11 investigation of this murder has now come to an end.

12 This was a dreadful crime. It has received obviously

13 a lot of attention. It is the focus of the work of this

14 Inquiry. But the commitment of the RUC and the PSNI to

15 bring to justice the perpetrators cannot be overstated.

16 Although the MIT, as I say, have now finished their

17 investigation, the PSNI still and will still remain

18 committed to the investigation of this murder, and it is

19 perhaps to be hoped that the work of this Inquiry may

20 bring to light matters that those in the public who have

21 the time to read what is said in this Inquiry, that it

22 may in fact bring to their recollection matters which

23 could be of use in the continuing investigation. And,

24 of course, I think the Chief Constable would be most

25 anxious that any information of that kind now, in

91

1 a changed climate, might perhaps assist the further

2 investigation of this murder. It is not over. The

3 investigation still continues.

4 THE CHAIRMAN: I hope that what you have just said will be

5 headlined.

6 MR DONALDSON: Thank you, sir, and we hope so too.

7 So those are my submissions. They are not all

8 I would like to have said, but that is all I can say in

9 the time available. If there are any further matters

10 that the Panel wish me to deal with, I will do so.

11 Questions from THE CHAIRMAN

12 THE CHAIRMAN: Thank you, Mr Donaldson.

13 Garvaghy Road and 6 July 1997. Do you accept that

14 the Panel could reasonably conclude that Mrs Nelson was

15 assaulted on that day by some unidentified officer or

16 officers of the RUC?

17 MR DONALDSON: No, sir, we don't think so. We have dealt

18 with that in our submissions so far and there is a lot

19 of conflicting evidence which we don't think would

20 enable this Inquiry to find, even on the balance of

21 probabilities, that an assault occurred.

22 Now, one of the points that is of great importance

23 is the fact that a solicitor who alleges that she was

24 assaulted did not actually go to a doctor, did not

25 produce evidence of bruising or marks. Some people said

92

1 she had marks, some people said she hadn't. There were

2 even conflicts about the nature of the bruising.

3 But I would say this: that in a situation, a riot

4 situation, for those who have had experience of being in

5 the midst of a situation like this, where people are

6 pushing and shoving and shouting in a very confused

7 situation, it could well be that she may have been

8 pushed around, not necessarily by police but by other

9 people, because it is very significant that none of the

10 people who were actually with her -- nobody actually

11 came into this chamber, as I recollect it, and said,

12 "I saw the police hitting her". I mean, she was with

13 someone at all times. There were reporters there, there

14 were people with cameras. It was a high profile

15 situation, it was being well reported. But those are

16 important missing pieces of evidence.

17 There were also references to various people, and

18 I don't recollect their names now, but I recollect very

19 distinctly that there were two or three people who were

20 identified as being able -- who should have been able

21 to -- who it was thought had witnessed the assault.

22 They were not called to give evidence.

23 THE CHAIRMAN: One of those was Mr Tom Cusack, whom the

24 Panel have been unable to locate. But his two written

25 statements do, you may accept -- or may not -- have

93

1 a ring of truth about them because he says he actually

2 went and comforted her after having seen her being

3 assaulted.

4 MR DONALDSON: Well, I find it very strange indeed that

5 a man like Mr Cusack was not contactable. We would

6 seriously question the truth and the accuracy of his

7 statements. There were other people there who we feel,

8 if there had been an assault -- we feel sure that it

9 would have been witnessed and we can't accept that even

10 on the balance of probabilities it could be established

11 that she had been assaulted.

12 In fact, I'm reminded we did summarise this -- and

13 forgive me if I just draw attention to it again. In

14 paragraph 6.20 of our submissions, we said that in the

15 opening submissions, Counsel to the Inquiry referred to

16 Mr Cusack's statement and cited a comment of

17 Geralyn McNally's, the supervising member, who said the

18 witness was extremely open and credible. The

19 investigating officer agreed that Mr Cusack was a good

20 witness. It should be noted, however, that this

21 assessment of the witness was not reflected in Chief

22 Inspector Oliver's report of the investigation and he

23 had not been called to give his view on the matter.

24 No statement was taken from Mr Cusack for the

25 purpose of this Inquiry. The Inquiry has indicated in

94

1 correspondence that attempts to locate him were made

2 that were unsuccessful and a decision was consequently

3 made not to pursue them further.

4 The absence of any statement from Mr Cusack is

5 a serious lacuna in the evidence in respect of this

6 issue. Indeed, the PSNI was concerned about the

7 reference in Counsel's opening to the apparent

8 endorsement of the credibility of a person who is the

9 only local civilian claiming to have witnessed the

10 assault, without any statement being received from him

11 for the purposes of this Inquiry. Had he given,

12 Mr Cusack would properly have been questioned about such

13 a matter -- about matters such as the clear discrepancy

14 between his account and Rosemary Nelson's and also the

15 circumstances in which he came to make his statement of

16 31 July 1997. It is, therefore, submitted that no

17 reliance can reasonably be placed by the Inquiry on the

18 two written statements made by Mr Cusack concerning the

19 alleged assault.

20 All one has are statements. They were not made to

21 Eversheds and no doubt if Eversheds had been taking the

22 statement they would have asked him some pertinent

23 questions concerning the circumstances, but he is

24 a man -- he is an absent man, we haven't heard from him.

25 Eversheds didn't see him and, therefore, sir, we say

95

1 that no reliance should be placed on his statement.

2 THE CHAIRMAN: What do you say about the evidence of

3 Mr Paul Mageean?

4 MR DONALDSON: I'm sorry, sir?

5 THE CHAIRMAN: The evidence of Mr Paul Mageean.

6 MR DONALDSON: What evidence do you have in mind, sir?

7 THE CHAIRMAN: Evidence that he saw the bruising on

8 Rosemary Nelson and received her account of what

9 happened.

10 MR DONALDSON: Yes. Well, again, I don't know that any

11 great reliance can be placed on that because in fact his

12 evidence -- there were other people who were in

13 a position to deal with that and didn't. For example, I

14 don't think -- we didn't hear much, oddly enough, from

15 Mr Paul Nelson about it.

16 THE CHAIRMAN: My recollection is there was evidence that he

17 received a telephone call from his wife that very day.

18 MR DONALDSON: He did, but in fact there was no follow-up on

19 that at all, to my knowledge.

20 In a reference to Mr Cusack -- just if I might

21 finish this -- he said in his statement of 31 July that

22 he saw Mrs Nelson getting physically abused and that:

23 "... the police were throwing her around like a rag

24 doll."

25 He expanded on this account in his statement to the

96

1 investigation of the complaint dated 8 December 1998.

2 He said that he actually saw about three or four

3 officers pushing Mrs Nelson to the ground and drag her

4 by the shoulder.

5 Now, that is just -- nobody else ever saw such

6 a thing, that three or four police officers knocked her

7 to the ground and dragged her along by the shoulder.

8 That is just absolute nonsense. There was never a shred

9 of evidence to that effect. That gives you some idea of

10 the nature of Mr Cusack's evidence and the reliance

11 which you should place on it, which is none.

12 This account, we say, went significantly beyond

13 Mrs Nelson's own allegation. He explained that he had

14 made the earlier statement in her office as a result of

15 his indignation and disgust with the police action on

16 the Garvaghy Road. When Mrs Nelson made her statement

17 on 21 December 1998, she mentioned that Mr Cusack was

18 a witness and might be prepared to make a statement.

19 She does not appear at that stage, however, to have

20 mentioned Mr Cusack's statement which was made on

21 31 July, or allegedly made on 31 July, which in fact was

22 more than six or seven weeks beforehand.

23 So generally, we don't think in this situation -- we

24 feel that the Tribunal do not have enough evidence to

25 support that proposition that she was assaulted, and

97

1 such evidence as there is is conflicting and you get

2 these extravagant statements made by Mr Cusack. And

3 I may -- and I think it might be agreed -- that if that

4 is the kind of evidence -- if one with was dealing with

5 this as an assault case in a court, listening to the

6 evidence, it wouldn't stand a chance.

7 THE CHAIRMAN: Yes. We are not of course dealing with

8 a case where criminal standard of proof --

9 MR DONALDSON: That's why I specifically said twice on the

10 balance of probabilities.

11 Now, that -- yes, I have answered -- at least I have

12 attempted to answer that question, sir. I'm still

13 standing.

14 THE CHAIRMAN: Yes, now, moving on to another matter, we

15 heard evidence from a soldier in the RIR that an RUC

16 officer made disparaging and untrue statements about

17 Rosemary Nelson, to refresh everybody's memory, about

18 the alleged bomb in the toilet. Could we not infer that

19 some RUC officers are likely on occasions to have made

20 similar remarks about Rosemary Nelson to RIR personnel

21 or to their friends or acquaintances, particularly when

22 we remember that not all but most RIR patrols were

23 accompanied by an RUC officer?

24 MR DONALDSON: Yes. In relation to that -- and I really am

25 glad you mentioned that because if I had time, I would

98

1 have made a further submission on that very point, that

2 concerning the evidence of A188.

3 Now, at paragraph 3.26 of the family submissions,

4 there is a reference to a rumour that Rosemary Nelson

5 was a bomber and that her scarring was the result of

6 injuries from a prematurely exploded bomb, and the

7 submissions said indeed this was a rumour which

8 circulated in the RUC -- this is their submission in

9 this:

10 "This was a rumour which circulated in the RUC and

11 the Army. A188 specifically recalled in his witness

12 statement a police officer had told him that

13 Rosemary Nelson had injured her face as a result of

14 throwing a petrol bomb at the police."

15 Now, we did consider in the overall picture that

16 this was an example really of an attempt to besmirch the

17 reputation of the police in general based on one piece

18 of evidence from a very dubious witness. The reference

19 in the submissions is obviously to A188's statement and

20 his evidence on Day 86, pages 107 to 108. His statement

21 is really replete with vacuous and prejudicial remarks

22 and included this recollection which he had referred to.

23 He said -- the statement later refers at paragraph 37 to

24 an incident that he said stood out in his mind

25 concerning something said by an officer at the back of

99

1 a Land Rover not long after he had supposedly been told

2 about what happened to Mrs Nelson's face.

3 Now, the statement also contains a remarkable

4 assertion:

5 "I can't remember anyone slagging Mrs Nelson off,

6 but I am probably less likely to remember this if the

7 comments were coming from the Army. I remember the

8 comments being made by the police as I was surprised by

9 these, as the police were meant to be figures who can be

10 looked up to."

11 Now, he is pressed on this in his evidence and in

12 his evidence he is asked:

13 "So for a number of years you were under the

14 impression that she had received it ..."

15 That's the injury or the deformity:

16 "... from throwing a petrol bomb?

17 "Answer: Yes.

18 "Question: Rightly or wrongly that was your

19 impression?

20 "Answer: Yes.

21 "Question: And presumably that was common parlance

22 ..."

23 This is the leading question coming in:

24 "... and presumably that was common parlance, common

25 discussion in the Army and the police, was it, that that

100

1 was how she suffered that injury?

2 "Answer: No, I have never heard that again and

3 I never heard anybody else saying it. I had no reason

4 ever to talk about it again."

5 So if it did happen, there was just this -- well,

6 I think it was probably a second occasion which I will

7 come to, but he said it certainly was not a matter that

8 was being talked about in the backs of Army Land Rovers.

9 Later in his evidence he referred to the two

10 separate alleged offensive remarks by a police officer

11 made about the cause of the scarring, and the following

12 exchange ensued at pages 135 to 136. He is asked about

13 the comments, and the question is:

14 "We have got two comments by the RUC over how many

15 years of your interaction with them?

16 "Answer: Five.

17 "Question: You would say, would you, that they were

18 drops in the ocean?

19 "Answer: Yes. Well, the first one with the being

20 burnt with the petrol bomb. As I say, on that day that

21 was my first duty as an RIR soldier, so that was the

22 very first day that I joined. And not to put a date or

23 a year or anything on it, but it was a good long time

24 after that a uniformed policeman had said this to me in

25 the back of a Land Rover.

101

1 "Question: My fault, not a very good question.

2 What I'm asking you is, they were not -- those

3 comments -- evidence of a broader, more prevalent

4 widespread attitude to her?"

5 And the answer is very significant:

6 "Not that I think, no."

7 So thus, quite apart from the limited credibility

8 that one could attach to this man's remark, the witness

9 himself denied that the matter was common parlance,

10 although it was put to him in the form of a leading

11 question.

12 The positive assertion by the families, however,

13 that this was a rumour that circulated within the

14 police, is based on entirely false reading of the

15 evidence of a witness of questionable credibility. And

16 it is notable that counsel for the MoD was careful to

17 describe the soldier's attitude as not being typical of

18 the attitudes of a significant number of soldiers in the

19 rank and file in the RUC.

20 This is a witness, we would say, whose base reaction

21 to Mrs Nelson's murder was that he felt it was just "one

22 of our enemies who had been taken out of the picture"

23 and the manner in which his evidence is relied upon is,

24 therefore, in our submission, absolutely improper.

25 So those, sir, are our submissions on that point.

102

1 THE CHAIRMAN: Thank you.

2 Questions by DAME VALERIE STRACHAN

3 DAME VALERIE STRACHAN: A couple of points from me, please.

4 I would like just to return to the question of

5 attitudes within Lurgan and the Lurgan CID, which we

6 touched on yesterday. What I wanted to put to you was

7 the totality of the evidence given by the officers who

8 came before us and, if I have got it right, basically

9 they said, each of them, "No, I never made adverse

10 remarks about Mrs Nelson, certainly not in interview.

11 No, I never made any adverse remarks about Mrs Nelson

12 amongst ourselves, privately. No, I never heard such

13 remarks being made at any time. If I had heard such

14 remarks being made, I would have reported them."

15 That, I think, summarises the evidence that I heard.

16 It does sound to me a bit unreal about somebody who

17 is behaving in the way that you have described,

18 a solicitor who is doing some "questionable" -- not

19 a quote from you -- things. One can see that

20 a professional police officer would be professional and

21 would not make adverse remarks to the person.

22 What I'm wondering is, is it real that when talking

23 to one's colleagues about such a person, one would never

24 let drop any kind of criticism or adverse remark? Is

25 that real?

103

1 MR DONALDSON: Probably not, I have to say. We talk -- even

2 among lawyers, amongst solicitors and, indeed, dare

3 I say, among judges remarks are sometimes made that we

4 would not like to see published. I suppose that was on

5 one level a defensive attitude on the part of the police

6 officers, which was perfectly understandable. But in

7 saying it at interviews, I think, Dame Valerie, you made

8 a point that this point about reporting somebody who

9 made a remark -- I don't recollect that that was said in

10 relation to matters which might have been said privately

11 in the canteen or something of that kind. I think that

12 related really to something -- things occurring at the

13 interview.

14 DAME VALERIE STRACHAN: Oh, I agree, yes.

15 MR DONALDSON: So, therefore, although some may have said

16 that there were no remarks made outside of the

17 interview, that might well be a defensive attitude which

18 is understandable, and if somebody was to ask you or me

19 had we made a remark, I think we would be slow perhaps

20 to admit it if we had made a remark which was not

21 perhaps complimentary, used some unparliamentary

22 language about the person. But one has to distinguish

23 what is said in the canteen amongst friends as to what

24 is said in the interview.

25 Now, the question of course is how much talk might

104

1 there have been in the canteen. Was it talked to

2 everybody? For example, I don't think that the business

3 of Rosemary Nelson's affair would have been talked about

4 very much, especially -- certainly not in the same

5 canteen as Mr Monteith went to because he didn't hear

6 about it. And I think there were others said they

7 hadn't heard about it and some said they had. I think

8 I'm right in saying that, but not many have heard of it

9 and I don't think that any ever said they had heard of

10 the more serious aspects of unprofessional conduct.

11 I may be wrong on that, but I don't think they did.

12 But I think the point really is this: that --

13 I answer your question very frankly -- I think there

14 might have been some talk in a general way, not in

15 a malicious way, about her maybe in the canteen. They

16 didn't admit that, I agree. I'm just conceding as

17 a matter of ordinary common sense that there might have

18 been a bit of chat among policemen in canteens which

19 really doesn't affect matters all that much.

20 But I think there was another -- a point arose,

21 though, about attitudes. I think you perhaps mentioned

22 attitudes. I think there is no evidence whatsoever to

23 indicate, even if they did have some chat in the

24 canteen -- there is no evidence to indicate that their

25 attitudes were affected, that anything happened during

105

1 interviews. I mean, there was no -- a lot of them were

2 very quick to point out that they had no particular

3 attitude towards her. Many said she was just

4 a solicitor doing her job, and as solicitors and lawyers

5 who practise on the criminal side, we all appear for

6 villains and nobody in the police, I think, for the most

7 part have never found the police regarded this as a sin

8 or anything offensive to them. It was a job everybody

9 had to do, and I don't think that -- these police

10 officers were doing this day in daily. They probably

11 met dozens of solicitors and barristers who were

12 defending them, sometimes successfully, sometimes

13 unsuccessfully, but I don't think that that affected the

14 attitude of police officers.

15 DAME VALERIE STRACHAN: You do see, though, what leads to my

16 concern. If officers have denied one thing which you

17 and I have agreed is implausible, that it leaves me with

18 the anxiety: might be they have denied something else?

19 MR DONALDSON: That's always a possibility. It is always

20 a possibility. But what I'm saying is that to look for

21 some -- if there is some substantive evidence about it,

22 then there isn't any which indicates that the -- well,

23 there is the evidence of the people who made the

24 allegations, of course, but you will have to examine

25 that. But I think it is dangerous ground here to say

106

1 that because a respectable police officer makes the case

2 quite honestly that he did not make such very nasty and

3 threatening allegations at an interview. Because he

4 denies those and then he denies that there was any

5 comment in the canteen, one shouldn't -- I don't think

6 there should be a difficulty at a human level in

7 accepting that even if an officer did make a comment and

8 said something about, well, you know, so and so,

9 Rosemary Nelson, appearing for Provos again, that sort

10 of comment. I don't think that that really would

11 translate into anything that would affect an attitude at

12 an interview, even if it was said.

13 DAME VALERIE STRACHAN: Right. Well, I shall reflect on the

14 implications of that.

15 THE CHAIRMAN: You talk of the canteen. It is in the

16 singular, isn't it? There is one canteen in Lurgan

17 police station?

18 MR DONALDSON: I don't know, quite honestly. I would assume

19 there's just one.

20 THE CHAIRMAN: Everybody has spoken about "the" canteen.

21 MR DONALDSON: There might have been a gourmet canteen.

22 THE CHAIRMAN: There are lots of nods from behind you. And

23 both police constables and inspectors, if they have the

24 time to go to canteens, would go to that canteen.

25 MR DONALDSON: I would assume so.

107

1 THE CHAIRMAN: And soldiers who were temporarily housed or

2 put into Lurgan police station, who were waiting in

3 a police station, would they use the same canteen?

4 MR DONALDSON: No, I don't think so. I would think that

5 highly unlikely. There was never any evidence to that

6 effect. They had their own canteens in their own base.

7 THE CHAIRMAN: But that's in Mahon Road, isn't it?

8 MR DONALDSON: Yes, in Portadown, yes. But having said

9 that, I think, to be perfectly frank, there is no

10 evidence about that and so, therefore --

11 THE CHAIRMAN: There is no evidence one way or the other.

12 MR DONALDSON: One way or the other. I might be accused of

13 speculating, so ...

14 DAME VALERIE STRACHAN: Secondly, you have talked a lot

15 about the Lurgan Nine and the credibility to be

16 attached, or rather not to be attached to what they have

17 said. One point that one of them made struck me and

18 that, I think, was Brian Loughran when it was put to him

19 at the end of his evidence that he might have made this

20 up. He said something to the effect of:

21 "If I was going to make something up, I would have

22 made up something other than what I have said."

23 And the thought did strike me that some of the

24 things that police officers were said to have said,

25 while unpleasant and pretty horrible, were not all that

108

1 high in the scale of threatening or intimidating

2 behaviour. If people were in the business of concocting

3 a story, why would they concoct something as mundane as

4 some of the remarks were?

5 MR DONALDSON: I couldn't really answer that, Dame Valerie,

6 to get into the mind of a person like that, who said if

7 I had to do it again I would have done a better job of

8 it. And he might have tried to do a better job.

9 DAME VALERIE STRACHAN: That's not what he said.

10 MR DONALDSON: No, that's my comment about it. But that

11 effectively is in terms of what he really was saying

12 about her: I might have said a lot more. But I don't

13 think, with respect, that you could attach much credence

14 to that kind of comment.

15 DAME VALERIE STRACHAN: Right, thank you. And finally

16 I would just like to come to the night before the

17 murder.

18 MR DONALDSON: Yes.

19 DAME VALERIE STRACHAN: Which obviously is a crucial night

20 and about which we have heard a lot of evidence, most of

21 which, I think, we can't go into here. But I wanted to

22 put a general point to you: do you accept that it is

23 unrealistic to think that Loyalist terrorists would go

24 into a known and very watchful Nationalist area to plant

25 a bomb without feeling assured that the coast was clear?

109

1 MR DONALDSON: Well, again, that is a matter of some

2 speculation. I suppose -- what's behind your question,

3 I think, is the possibility that they might have needed

4 some assistance in order to do this. We have taken the

5 trouble to go and look at the house ourselves and one

6 thing that struck us about it was the fact that you can

7 get very close to Rosemary Nelson's house without

8 travelling through -- you don't have to travel through

9 the Kilwilke Estate. If you come from -- I'm not sure

10 what the points of the compass are on this, but if you

11 come in from -- certainly I think it is the west side --

12 you can get there without passing many or very few

13 houses. It is quite -- we considered this and you may,

14 I'm sure, probably have been there already, or if you

15 haven't been, I would suggest that you do because you

16 can see how you can get in quite close to her house.

17 Say it is 1 o'clock, 2 o'clock, 3 o'clock in the

18 morning, one could walk in quite close to the house,

19 carry the device, I suppose, plant it under the car,

20 which might only take a couple of minutes, make sure

21 there is nothing coming and do that -- and you can form

22 your own conclusion about it of course. You could

23 probably do that quite easily or relatively easily.

24 There is always the risk of being caught, but it never

25 prevented people before in planting bombs in -- even in

110

1 circumstances not dissimilar.

2 THE CHAIRMAN: So that there is no mystery about it, all

3 three members of the Panel have motored round the area

4 and past her house and up the road the opposite way from

5 Kilwilke and we have also been to Portadown and --

6 MR DONALDSON: I thought you would, sir, but I didn't want

7 to assume that.

8 THE CHAIRMAN: Yes.

9 MR DONALDSON: But I think you will have seen the point I'm

10 making is that it will be possible to do that.

11 If I might finish on that point that Dame Valerie

12 mentioned, it was certainly a very important night and

13 if someone had said to you, "Do you know, there was

14 a police car with a plain clothes driver passed that

15 house at midnight or 1 o'clock in the morning", you

16 would immediately have been extremely suspicious of what

17 the police were up to, passing that night. That was

18 Operation Fagotto. That was, of course -- the persons

19 who planted the bomb wouldn't have known that Operation

20 Fagotto was afoot and we now know I think absolutely

21 conclusively that that was a bona fide operation and not

22 in any way connected.

23 But whoever planted the bomb happened to pick their

24 time well enough. There is still a fair space of time

25 it would be planted. This was in the month of March.

111

1 It would have been dark, I suppose, at 8 or 9 o'clock.

2 It wouldn't have been daylight until possibly around 5

3 or 6 o'clock. So there was quite a lot of time there.

4 The bomb could have been planted at 3 o'clock, 4 o'clock

5 or even 5 o'clock in darkness. So anyone who wants to

6 do it -- I think the short answer really is it was

7 possible to do it with care, and the people who did it

8 were obviously no slouches when it came to this kind of

9 thing and they knew exactly what they were doing and

10 they knew how to do it.

11 THE CHAIRMAN: Thank you very much indeed for your

12 submissions, Mr Donaldson. I think it would be

13 convenient probably to take the adjournment now and we

14 will adjourn until 3 o'clock.

15 (2.42 pm)

16 (Short break)

17 (3.04 pm)

18 THE CHAIRMAN: Yes, Mr Phillips?

19 MR PHILLIPS: Before Mr O'Hare begins the family's

20 submissions, may I just say a word or two about the next

21 stage of the hearings, indeed the final stage of the

22 hearings?

23 As things stand, you have allowed a period of about

24 nine days for closing submissions from me, beginning on

25 Monday, 15th June at 1 o'clock. And I'm happy to say --

112

1 and I hope that others present will be even more

2 delighted to hear -- that the comprehensive and detailed

3 submissions which have been made by the Full

4 Participants mean, so far as Inquiry Counsel are

5 concerned, that certainly what I want to say in my oral

6 submissions can comfortably be accommodated in a much

7 shorter period. And what I propose, sir, is that you

8 should sit on Monday, 22 June, a week later, at 10.15 in

9 the morning, on the basis that I will complete the

10 limited amount that I wish to say by close of play on

11 Wednesday, 24 June.

12 THE CHAIRMAN: Thank you very much.

13 Yes, Mr O'Hare?

14 Closing submissions by MR O'HARE

15 MR O'HARE: Thank you, sir.

16 Sir, can I just say at the outset that both my

17 learned friend Mr Harvey and myself have divided up our

18 submissions amongst us, and so far as the letter of

19 Mr Myers of 22 April is concerned, sir, I propose in

20 these submissions to deal with the issues raised by

21 Mr Myers on page 2 of that letter. So the broad

22 subheadings are: Rosemary Nelson's relations with the

23 RUC, dealing with the PSNI's submission that these

24 deteriorated by about 1997; and secondly then, the

25 question of complaints and related matters.

113

1 Obviously in doing so I propose to respond in brief

2 and where necessary to submissions that have been made

3 on behalf of other Full Participants, and of course I'm

4 happy to field any questions as we go along.

5 THE CHAIRMAN: Thank you.

6 MR O'HARE: Sir, essentially the two subheadings, as it

7 were, raise several distinct areas. The first of those,

8 obviously, concerns the complaints made and the

9 allegations made by Rosemary Nelson's clients. They

10 also raise, we respectfully submit, the question of the

11 Cumaraswamy visit. I hope to deal with that in brief.

12 They also deal with the Geralyn McNally question and

13 particularly a query Dame Valerie raised the other day

14 with Mr McCollum. I hope to deal with that also, but

15 can I start, sir, by addressing firstly the question you

16 put to Mr Donaldson in relation to the Garvaghy Road

17 assault, or the alleged assault in July 1997.

18 Now, Mr Donaldson, if I can say with respect, made

19 the point that one might expect to be made in relation

20 to that incident. I say that for the following reasons.

21 He relied on the fact that Rosemary Nelson never sought

22 to produce any medical evidence in relation to the

23 bruising injuries which various witnesses alleged she

24 exhibited in the aftermath of the incident itself.

25 Now, in that regard that's a fair point, but

114

1 Rosemary Nelson wouldn't be the first lawyer, can I

2 submit, who didn't follow the advice she would give to

3 others when it came to dealing with her own affairs. We

4 have clear evidence, we submit, from Mr Mageean in

5 particular, as you, sir, raised with Mr Donaldson, that

6 he saw that bruising. He took a statement from

7 Rosemary Nelson surrounding the circumstances of the

8 assault and saw that bruising for himself, as I believe,

9 the day after the incident occurred.

10 Now, overall the question must be, on balance of the

11 probabilities can the Panel accept that such an incident

12 happened, something of the type alleged by Mrs Nelson at

13 the time, happened? In our respectful submission the

14 plain answer to that is yes, and I say so for the

15 following reasons.

16 Firstly and foremostly, the evidence of

17 Sergeant Miller, you will recall, confirmed that he was

18 on the lines that night. He confirmed that he saw

19 Mrs Nelson coming along the lines, complaining that she

20 had just been assaulted. Her demeanour was one of upset

21 and anger. And he confirmed that all the way along the

22 line she was making a consistent effort to say, "I want

23 to report this assault. Who was it who through me about

24 the road like a sack of potatoes" or something like

25 that. So first and foremost, we respectfully submit you

115

1 have a contemporaneous and instantaneous complaint that

2 something has happened.

3 Secondly, you have the evidence of various other

4 observers, both political and in terms of journalistic

5 observers. You have in particular, we submit, the

6 evidence of Susan McKay. Her evidence, we respectfully

7 submit, is very important in that she goes with

8 Rosemary Nelson to the police lines. And what she told

9 the Inquiry was in general terms that the police didn't

10 want to know. They treated Mrs Nelson in a dismissive

11 fashion. Mrs Nelson was saying, "I represent the

12 Garvaghy Road residents" and I think memorably the

13 answer came back, "So?" calling her by her first name.

14 And generally she conveyed the clear impression, we

15 submit, that Rosemary Nelson was being treated at that

16 stage with complete and utter disrespect, without any

17 regard for her position and her status as a lawyer.

18 In fact, my learned friend Mr Harvey reminds me, in

19 her evidence she gives examples of their dismissive

20 attitude:

21 "They referred to her using her first name, and when

22 Rosemary said who she was representing and what her role

23 was, they simply say 'so?' But overall, the attitude

24 towards her was, I remember more than anything and it

25 was very dismissive. Even the way that they used the

116

1 first name, I thought it was quite disrespectful, you

2 know.

3 "Question: Other than using her first name, what

4 did they say to her which you thought was disrespectful?

5 "Answer: Saying 'so', for example, when she

6 described who she was."

7 That evidence was mirrored in the evidence of

8 a number of other southern Irish politicians who were

9 present on the scene, but stressed that they did not

10 witness any assault. Their evidence was that that same

11 attitude towards her was replicated when they witnessed

12 the various exchanges between Rosemary Nelson and the

13 police officers on the line.

14 So looking at those two matters, we respectfully

15 submit you have an instantaneous complaint of an

16 assault. You have clear evidence, we say, of

17 a dismissive attitude on the part of the police and

18 I think one of -- the evidence was, for example, that

19 when Rosemary Nelson herself went to raise the matter

20 and Susan McKay was at her side, one of the police

21 officers said, "I'm not going to satisfy you and your

22 desire for publicity" or something along those lines and

23 refused to speak to her.

24 So given the evidence of the bruising that was seen,

25 by, we submit and contend, a respectable people not

117

1 given to over-exaggeration and given what the police

2 evidence itself suggests, that Rosemary Nelson is

3 complaining and saying, "I was assaulted, will somebody

4 deal with this", we respectfully submit, Mr Chairman,

5 sir, that you can clearly find that something along the

6 lines alleged by Rosemary Nelson happened at that time.

7 Now --

8 THE CHAIRMAN: And what is the relevance of the

9 Garvaghy Road evidence within our Terms of Reference?

10 Is it that it display an attitude?

11 MR O'HARE: Absolutely. A complete and utter disrespect for

12 a solicitor. It also, on one view, clearly indicates

13 that when Rosemary Nelson, for example, is saying,

14 "I represent the Garvaghy Road residents" and the

15 attitude is, "So", that these people are saying that is

16 a matter of indifference to them. In other words, if

17 they had a view of the Garvaghy Road residents and

18 Rosemary Nelson represents them, then the indication

19 clearly is that Rosemary Nelson has been equated with

20 her clients in that circumstance and to that extent it

21 is relevant.

22 It is certainly relevant in terms of an assault as

23 being the most basic expression of hostility that one

24 can have, and if the Panel is satisfied on balance that

25 something along those lines happened, that was a real

118

1 manifestation of that hostility, we say.

2 Sir, to turn to the central premise, the first

3 question posed in Mr Myers' letter is this: did

4 Rosemary Nelson's relationship with the RUC deteriorate

5 from about 1997 and, if so, what were the reasons for

6 that?

7 Now, that is lifted obviously from a direct

8 submission made on behalf of the PSNI, and the clear and

9 unambiguous assertion is made that from 1997, when

10 Rosemary Nelson represented Colin Duffy, that is when

11 things changed and whatever change happened was a change

12 on Rosemary Nelson's part, that her attitude changed

13 towards them, rather than vice versa.

14 Now, in my respectful submission, that flies, we

15 would say, in the face of the evidence that you have

16 been given and I include the totality of all the

17 evidence that you have heard.

18 Firstly, as to whether or not 1997 could be seen as

19 being a watershed, as it were -- and this is really

20 a point that Sir Michael raised with Mr Donaldson, on

21 one view -- and Mr Harvey will deal in due course with

22 the intelligence -- but you will recall, for example,

23 that in 1994, December 1994, that we have seen is the

24 first reference to Rosemary Nelson appearing in

25 Special Branch intelligence indicating, in that context

119

1 and in relation to the Lyness case, that she was

2 attempting to construct a false alibi for Colin Duffy.

3 Now, that prima facie suggests that there was an

4 adverse view of her at some levels within the RUC, as

5 previous to 1997 as December 1994.

6 Now, in developing this theme about 1997 and the

7 Duffy case in particular, at paragraph 3.6 -- this

8 doesn't need to be turned up, but the suggestion is made

9 that there is no straightforward answer to the question

10 of why relations were affected. As police witnesses

11 have explained, they did not identify a solicitor with

12 the client, however reprehensible the nature of the

13 crimes with which the client was charged.

14 Over the course of that submission, they then go on

15 to develop the extent, they say, to which

16 Rosemary Nelson went in her defence of Colin Duffy.

17 Now, in doing so -- and Mr Donaldson hasn't attempted to

18 hide from this -- they make the express case that it was

19 a representation of Mr Duffy which changed her attitude.

20 And in the course of doing so, they make what we

21 respectfully submit is a regrettable submission.

22 Before turning to that, the point made is that 1997,

23 as I say, was a watershed. That largely ignores, as you

24 sir, pointed out, the fact that in 1996, October 1996,

25 Rosemary Nelson was complaining to Jane Winter that

120

1 clients of hers in Gough had been subjected to abusive

2 remarks in relation to Rosemary Nelson. It completely

3 ignores the fact, we say, that the tranche of complaints

4 which arose in February were already in the system, as

5 it were, through the Torricelli and Ed Lynch LAJI

6 letters in March and April, and it also completely

7 ignores, we say, the fact that Jane Winter had been

8 discussing these matters with Rosemary Nelson. And you

9 recall, sir, that she had written to her saying, for

10 example, you have got three options here: 1) you can

11 stop doing the work; 2) you continue to do the work and

12 keep your head down; or 3) you continue doing the work

13 and make as much noise as possible on the basis that it

14 may be a form of protection for you.

15 So all of those things were well underway well

16 before the terrible murders of these two constables and

17 Mr Duffy's arrest and charge in relation to that.

18 Now, the unfortunate, we say, submission that was

19 made also in this regard was the submission that the

20 complaints made in relation to the February matter,

21 Toman, et cetera, were somehow utilised to bolster up

22 the complaints made in relation to the Duffy case.

23 Perhaps we can have on the screen, RNI-920-027

24 (displayed). Now, if you would highlight the last three

25 lines of the top paragraph, paragraph 3.14 for me,

121

1 please. Now, in the preceding submissions the point is

2 being made that so far as the Duffy complaints were

3 concerned, those complaints were designed to provide and

4 afford him a defence to the murder charges. Now, I will

5 deal with that shortly, but secondly then, the

6 submission is made here that these February complaints,

7 for example, find their way into the system at a time

8 after the Duffy charges have been brought. And the

9 suggestion here made is that one interpretation of the

10 evidence that the Inquiry is invited to consider is that

11 these complaints were employed primarily to bolster the

12 complaints made by and on behalf of Mr Duffy himself.

13 Now, in my submission that is an unfortunate

14 suggestion because, firstly, that directly implied that

15 Rosemary Nelson was involved in the cynical manipulation

16 of those other complaints with one eye on the Duffy

17 complaints. We know that Mr Duffy was in custody

18 throughout this time and we know from the evidence

19 adduced by Counsel to the Inquiry that the statements

20 that were given at the time were given to Mr Mageean at

21 the end of February/early March. The statements of the

22 two Tomans and Gary Marshall were given at the end

23 of February/early March, and we have seen that these

24 matters that went into the system, arose and

25 crystallised in September/October time. But to suggest,

122

1 in my respectful submission, that Rosemary Nelson

2 herself manipulated those complaints has no bearing in

3 fact at all when one looks at all the evidence in this

4 case.

5 The fact is that that suggestion was never made by

6 any witness who appeared to give evidence before this

7 Inquiry, nor was it made by any witness at the time

8 these complaints were initially investigated.

9 Dealing with the substantive submission made by

10 Mr Donaldson, that it was Rosemary Nelson's attitude

11 which changed, first of all you have a lot of evidence

12 that Rosemary Nelson's was an ordinary practice, it was

13 an ordinary provincial town high street practice, did

14 all sorts of work. That she came to do a number of high

15 profile cases, we submit, is not and could not and

16 should not be taken to indicate that her attitude in

17 some way changed. It is contrived, we respectfully

18 submit, to say that the police -- their attitude didn't

19 change when she was doing all this work, but her

20 attitude changed. So that, for example, by representing

21 Mr Duffy, suddenly and overnight her attitude towards

22 representing police officers, for example, in the course

23 of her ordinary work, in terms of matrimonial cases,

24 that that all changed.

25 A far more straightforward and a far more

123

1 sustainable submission, of course, is that the attitude

2 towards Rosemary Nelson changed because of those

3 matters. Now, when Mr Donaldson makes a submission, he

4 uses and relies on snippets of evidence, for example,

5 from Rosemary Nelson's staff, talking about, for

6 example, the work that was done on the Colin Duffy case,

7 what priority was given to that by Rosemary Nelson, how

8 that might take priority over other work, et cetera.

9 What that evidence, we submit, ignores is the fact

10 that those same witnesses, in terms of secretarial staff

11 and in terms of lawyers, all say that it was in doing

12 this work that they experienced the hostility from the

13 police.

14 We made extensive written submissions on this point,

15 and you would see, for example, the evidence of

16 Ita McCrory about going with clients, for example, to

17 the police stations to have witness statements recorded.

18 You have the evidence of Brian Leeson. I will come back

19 to him in due course, but the clear impression created,

20 we submit, is that this hostility was coming in the

21 opposite direction. It is fanciful, in our respectful

22 submission, to say that her representation of Mr Duffy

23 on these charges changed her attitude overnight. She

24 had been representing him since 1994, was representing

25 him in the Lyness case then. So to accept the

124

1 submission made by the PSNI really, we say, involves

2 a somersault, an unnatural somersault, when the clear

3 evidence, we submit, supports the proposition it that

4 was the attitude of the police which changed towards

5 Rosemary Nelson.

6 I want to deal with one or two matters again which

7 Mr Donaldson made. For example, he cited a quote that

8 came from Eunan Magee in relation to his concerns about

9 his sister's evidence or his sister's practice, and that

10 she expressed the concern that in doing some of the work

11 she did, that the tail was wagging the dog.

12 Now, one can put a benign or a sinister

13 interpretation on anything. The opposite interpretation

14 might equally be applicable in that this was an

15 expression of anxiety on Rosemary Nelson's part that the

16 work that she was doing, which was high profile, was

17 actually unduly shaping the profile of the firm and that

18 that was an impression of concern on her part.

19 Now, if that's reasonable, that, we say, flies in

20 the face of the submission consistently made by PSNI and

21 any by police officers that Rosemary Nelson's

22 involvement or representation of Colin Duffy was

23 something sinister.

24 The next question I propose to deal with is the

25 question of how should the Panel approach the evidence

125

1 which they have received and the material which they

2 have considered concerning the RUC's treatment of

3 defence solicitors and what weight should be attached to

4 it. Again, sir, I know you have read our lengthy

5 submissions in that regard and I certainly don't propose

6 to repeat them here, but essentially can I respond to my

7 learned friend's submission, Mr Donaldson? He says that

8 that evidence should be accorded no weight whatsoever.

9 Now, we submit that that evidence is important for

10 a number of reasons. Firstly and most obviously, it is

11 important because the sole response from the various

12 police witnesses to the Inquiry and the sole submission

13 made on behalf of the PSNI is that the allegations made

14 in this case were made to discredit the police.

15 Now, we submit that if the evidence were that there

16 was no precedent for this type of complaint to be made,

17 if they came completely out of the blue, that they were

18 localised to Lurgan, that they were localised to the

19 clients of Rosemary Nelson, there might be something to

20 that. The fact of the matter is that all of the

21 evidence that you have received quite clearly shows that

22 complaints of this nature had been made from as far as

23 back, as far as we can see, as 1987. And you have, for

24 example, the Irish Times article at RNI-401-002. That

25 was an article dated 1987.

126

1 So consider that -- my learned friend, if there were

2 no other evidence, he would be pointing to the fact that

3 there was no other evidence and why is this only

4 happening here? Why is it localised to Lurgan? In

5 fact, such allegations had been going on for years.

6 In looking at the Irish Times article, and just by

7 way of correction, rather, my learned friend, you will

8 recall, pointed to the fact that Mr Haughey,

9 Paul Haughey, a solicitor from that particular area, had

10 complained that he had not been consulted about the

11 publication of the article. What was interesting was

12 that in doing so, he said:

13 "The reason I was annoyed was that I wanted to keep

14 my head down. I didn't want the publicity of this, but

15 now that you have asked me ..."

16 And he was asked:

17 "... I had this experience, this happened time and

18 time again for years. I was subject to the same type of

19 abuse. My view was that it was just typical of the

20 hostility that was being generated towards me as

21 a defence solicitor."

22 The reason he complained about his name being used

23 was that he did not sanction it, and that's a far cry

24 from saying -- and his evidence shows -- that he didn't

25 distance himself from the central allegation, which he

127

1 accepted.

2 Now, if the Panel is to follow the submission of the

3 PSNI and is to say that you shouldn't pay any attention

4 to this evidence, that, in our submission, could only be

5 on the basis that you were satisfied that all of these

6 allegations, right the way across the jurisdiction,

7 right the way through the late 1980s into the 1990s,

8 that they were all fabricated, that they were all

9 generated with a view to promoting an anti-RUC agenda.

10 And in my respectful submission, in our respectful

11 submission, that is unsustainable.

12 We say that for a number of reasons. First and

13 foremost, you have clear evidence from virtually all the

14 solicitors here that these matters were not really

15 pursued by them with any great zeal, either in terms of

16 complaints or in terms of publication. They all said

17 that firstly they had no faith in the Law Society;

18 secondly, they had not faith in the Complaints and

19 Discipline system; thirdly, they said, for example, that

20 the clients wouldn't have wanted to have been involved

21 because any complaint by necessity would have involved

22 them going along and being re-interviewed by the police

23 and that they didn't want that to happen. And in one

24 case, as you, Dame Valerie, remarked upon yesterday, one

25 solicitor said, "This was not remunerative work for us.

128

1 It wasn't worth the candle." So one solicitor said, for

2 example, I might write the first letter, but after that

3 you are on your own, I wouldn't take any involvement in

4 the complaint process itself.

5 So against that background, we say, how likely is it

6 that this was an anti-RUC propaganda campaign right

7 across the board. Now, Mr Donaldson again took issue

8 with the fact that complaints were not being made to the

9 Law Society, for example. And it is quite right --

10 I would respectfully remind the Panel of the evidence of

11 Mr McGrory in this regard. What he actually said was --

12 and I think this was a point which was raised yesterday

13 by the Panel -- there was this civil law/criminal law

14 distinction being made in the Law Society at that time.

15 The expression actually used by Mr McGrory when he gave

16 his evidence was that:

17 "We were regarded as being second class citizens

18 within the Society."

19 And to the best of my recollection, that was one of

20 the reasons why both himself and Mr Monteith put

21 themselves forward and got elected to the Council. So

22 it was quite clear that this was the perception on the

23 part of the criminal practitioners, that there wasn't

24 adequate support being given to them on the part of the

25 Law Society.

129

1 Sir, so to suggest that these things were simply and

2 solely an anti-RUC propaganda campaign we say is not

3 borne out by the evidence here.

4 Now, we are then asked to address the issue of:

5 "If such a thing was going on, was that practice, as

6 suggested by the family, symptomatic of a reluctance or

7 refusal on the part of the police to view solicitors as

8 being separate from their clients and /or an

9 interrogation tactic intended to undermine confidence

10 and make it more likely that admissions might be made

11 and information supplied."

12 Sir, it is our respectful submission that it is both

13 of those things and more. The two branches are not

14 mutually exclusive. On one view, if the practice only

15 went so far, we would submit, for example, if the

16 remarks -- the allegations -- the remarks that were

17 being made were only saying that your solicitor is only

18 interested in the money and is not interested in you, it

19 might be said with some justification that is simply

20 a tactic.

21 What the evidence clearly shows, we submit, is that

22 the evidence went much further than that and when it

23 degenerated into vulgar abuse of the solicitors and when

24 it degenerated into threats of the solicitors, it was

25 clearly far more than that. It represented not only

130

1 a reluctance or a refusal to regard them as being

2 separate from their clients, but it became much more

3 fundamental than that: an expression of downright

4 hostility. And, again, Mr McGrory perhaps best summed

5 up this point when he gave his evidence, and if we could

6 see that, please, at RNI-925-067 (displayed). Thank

7 you. Could you highlight, perhaps, the italicised

8 paragraph at the bottom?

9 You see that he said that -- this was post the

10 Finucane murder obviously:

11 "Our view of this at the time ..."

12 This is the late 1980s:

13 "... would have been that this was perhaps more

14 directed at the client than it was at us in that we felt

15 it was probably a way of destabilising the client and of

16 attempting to disrupt the client's feelings that you and

17 as lawyer were acting in their best interests and would

18 look after them. It was part of the interrogation

19 technique that was going on in Castlereagh and other

20 holding centres at the time.

21 "I actually don't think at the time that we

22 originally thought it was an attempt to threaten us or

23 harass us, but as time went on, the remarks that were

24 being made began to increase in intensity and in the

25 nature of their hostility, particularly after Pat was

131

1 murdered when they began to say, 'Oh well, we got

2 Finucane and we will get McCrory' and so forth. But

3 once Pat had been murdered, it began to dawn on us that

4 there might have been a much more sinister reason for

5 this conduct and that these people actually believed

6 these things and that this was how they actually saw us,

7 as opposed to being an interrogation technique."

8 That in essence, we say, neatly encapsulates the

9 evidence you have received right across the board from

10 these solicitors, as I say, from right across the

11 jurisdiction.

12 Sir, in those circumstances, we say that the

13 evidence clearly discloses (a) that this was an

14 interrogation technique, but (b) it was symptomatic of a

15 refusal or failure to regard the solicitor as being

16 separate from the client, and (c) it was also at its

17 worst -- those worst examples, we say, are replicated in

18 the case of the Rosemary Nelson clients as an expression

19 simply of downright hostility and, on one view, hatred

20 towards the solicitors involved.

21 Again, sir, you have pretty lengthy submissions from

22 us in written form and I don't, as I say, propose to

23 replicate that.

24 Now, two further questions which are identified in

25 Mr Myers's letter and which can be dealt with together

132

1 are the questions:

2 "What is the significance of Sir Ronnie Flanagan's

3 evidence that he had not held such views in relation to

4 defence lawyers?"

5 And allied to that:

6 "What steps, if any, did the management of the RUC,

7 up to and including the Chief Constable, take to address

8 these matters?"

9 These questions are only broadly take in the

10 Cumaraswamy affair and, again, you have our written

11 submissions in that regard. But can I summarise our

12 position as follows: We say that it is highly likely

13 that Sir Ronnie Flanagan did hold these views as it is

14 probable that even if he did not utter the impugned

15 remarks at the time of the Cumaraswamy meeting, he was

16 present when they were said.

17 More importantly than the issue of who said the

18 remarks, we submit, is that the headline issue in the

19 Cumaraswamy affair, we say, is this: the fact that what

20 was actually uttered at that meeting was an expression

21 of the opinion and views of the senior management of the

22 RUC at the given time. So that even if you can't be

23 satisfied that Sir Ronnie Flanagan uttered the remarks

24 himself, it was said at a very senior level, the RUC,

25 and the net result was the same.

133

1 A point that was made time and time again was that

2 the view being exhibited towards the solicitors in the

3 holding centres was replicated all the way up and, in

4 our respectful submission, the Cumaraswamy incident is

5 significant and highly significant for that reason, in

6 that it is prima facie evidence, we say, and clear

7 evidence that that was the view at the very top.

8 Now, that fact in itself has an impact on the second

9 limb, namely what steps did the management of the RUC

10 take to address it. That this mirrored their own view

11 is likely to have had an impact on what they actually

12 did about it, and it is against that yardstick that what

13 they actually did about it should be viewed.

14 It is our submission, sir, that given the inherent

15 dangers in this practice going on, in being allowed to

16 go on, given those inherent dangers, much more could and

17 should have been done and years before it was done as

18 well.

19 Now, so far as the question about whether

20 Sir Ronnie Flanagan held those views is concerned, can

21 I make the following points? It is quite obvious -- and

22 it is a point that Mr Phillips highlighted again and

23 again -- that the visit of Mr Cumaraswamy was extremely

24 high profile and was a matter of great political

25 significance. We know that it had been organised

134

1 through the Foreign Office, for example, and the NIO and

2 involved what, on any showing, was a heavyweight of

3 a figure from a distinguished international background.

4 Now, in that regard, it is interesting to note first

5 and foremost the contents of Mr Cumaraswamy's letter to

6 the UK Ambassador when this proposed visit was being set

7 up. Could we see that, please, at RNI-109-095

8 (displayed)? This is a letter of 4 April to the UK

9 Ambassador at the United Nations and you will see there

10 that the very first item on the agenda was:

11 "There have been consistent reports of alleged

12 systematic abuse of defence lawyers in Northern Ireland

13 by certain police officers since 1992. There have also

14 been reports of similar abuse, though to a lesser

15 degree, in England. More recently, there has been

16 a reported increase of such abuses in Northern Ireland

17 associated with an increase in arrests under the

18 emergency laws."

19 So from very far out and at a very early stage we

20 say the prime reason for the visit was this very issue.

21 Now, it is against that background, we say, that the

22 suggestion, made belatedly by Sir Ronnie Flanagan that

23 he was not present when these impugned remarks were

24 made, should be judged. As I say, this was quite

25 clearly a high profile, politically very significant

135

1 visit. It was a visit which, even on Sir Ronnie's

2 evidence, he knew was going to be on the record and it

3 concerned this very issue.

4 Now, it is also important to bear in mind, we

5 submit, that Sir Ronnie Flanagan -- his state of

6 knowledge at the time was, according to his statement,

7 paragraph 599 at RNI-806-150 -- it needn't be turned

8 up -- he says as far as he was concerned there was no

9 widespread issue to be addressed in Northern Ireland in

10 terms of RUC treatment of defence lawyers. That was his

11 state of knowledge, he says, at the time of the

12 Cumaraswamy visit.

13 Now, that rather ignores the evidence of

14 Jane Winter, for example. You will recall that

15 Jane Winter had been documenting this issue from about

16 1992, and perhaps that informed the time period given in

17 Mr Cumaraswamy's letter. She had been compiling reports

18 on this issue since 1992, and that's clear from

19 paragraph 9 of her statement.

20 She describes sending copies of the report not only

21 to the Special Rapporteur, but also:

22 "I also always sent a copy of my report to the

23 Chief Constable, the Policing Board, the ICPC and the

24 Secretary of State."

25 So having raised this issue consistently throughout

136

1 this period and over the years prior to the Cumaraswamy

2 visit, it is inconceivable, we submit, that Sir Ronnie

3 should express the view that he wasn't aware that there

4 was a serious issue to be addressed.

5 Now, allied to that, you heard evidence that he

6 tended to be on one view quite dismissive of Jane Winter

7 and what she had to say. At another time he says that

8 had this been an issue, he would have expected the

9 Law Society to be bringing this matter to his attention.

10 Of course that rather overlooks the fact that

11 Jane Winter's sources of information were the solicitors

12 themselves who were giving her this information about

13 what was going on, they said, in the holding centres.

14 So at this juncture, it is important to bear that in

15 mind. When he said he wasn't aware of any widespread

16 issue which needed to be addressed, we submit that that

17 just cannot have been the case.

18 Now, so far as his own view is concerned, he himself

19 said in the same paragraph, paragraph 59 of his

20 statement to the Inquiry, that:

21 "Prior to Mr Cumaraswamy's visit I would have wanted

22 to know, before the meeting, what I was meeting

23 Mr Cumaraswamy about and why."

24 It is clear also, we submit, that when you look at

25 the evidence, Sir Ronnie Flanagan was briefed by

137

1 Mr White prior to that particular meeting, this

2 politically sensitive meeting, high profile and on the

3 record. Belatedly, Mr White produced a briefing note

4 which included the following words:

5 "There was a body of solicitors who are unduly

6 sympathetic to paramilitaries and also the Commissioner

7 (ICHC) believes that some solicitors who regularly

8 attend Castlereagh are corrupt."

9 Now, the Panel will recall that those precisely

10 mirror the words that were uttered in the meeting. When

11 asked about the briefing note, Mr White said in his

12 evidence -- this was Day 93 -- that he presumed that he

13 gave a copy of it to Sir Ronnie Flanagan before that

14 meeting began. In these circumstances, it is reasonable

15 to assert that in advance of the meeting

16 Sir Ronnie Flanagan was in possession of information

17 which mirrored exactly the information which came to be

18 conveyed to Mr Cumaraswamy and Mr Parra.

19 Now, obviously, as to who said it, the 1panel has

20 a problem, has something of a problem. But it is

21 interesting to note the following, we submit. When

22 Mr White made his statement in August 2007, he said the

23 following:

24 "My recollection of the meeting is that the

25 Chief Constable was not saying that in his view

138

1 solicitors may be working for the paramilitaries; rather

2 the Chief Constable was saying that this could be the

3 public perception and possibly a view held by some RUC

4 officers."

5 He also said:

6 "My recollection of the meeting is that the

7 Chief Constable invited Param Cumaraswamy not to be

8 blind to the fact that it was a possibility. The

9 Chief Constable wanted an open mind to be kept."

10 So it is clear, we submit, that as late

11 as August 2007, Mr White himself was of the view that

12 Sir Ronnie Flanagan had made the remarks during the

13 course of the meeting.

14 Interestingly, when making their statements about

15 this particular issue, neither P147 nor Mr White

16 suggested that Sir Ronnie Flanagan left the meeting at

17 any stage. That's a suggestion which comes only when

18 Sir Ronnie Flanagan's statement comes to be made to this

19 Inquiry. I acknowledge that P157 in his statement said

20 that he thought it was Mr White who made the remarks,

21 but the point of the matter is that it was only in his

22 oral evidence did Mr White concede the possibility that

23 he said it. At no stage did he accept that he said it.

24 He acknowledged the possibility that he may have

25 said it.

139

1 But overall what we submit is that it is absolutely

2 inconceivable that Sir Ronnie Flanagan wasn't present

3 when those remarks were made, and we say that for the

4 reasons already canvassed: high profile visitor, an

5 on-the-record meeting, dealing with the first question

6 on the agenda. How likely is it, does the Panel feel,

7 that that could have happened? Given the nature of that

8 meeting, the ground it was going to cover, the sensitive

9 nature of it, what would most people say? "Hold my

10 calls for the next hour." The evidence was that this

11 meeting only lasted something of the order of an hour.

12 Secondly, we say that in the aftermath of the

13 meeting, in the aftermath of the publication of the

14 draft report, we have this complete absence of any sense

15 that when the draft report came in, did

16 Sir Ronnie Flanagan take any steps to find out or to get

17 to the bottom of how it came to be that he was misquoted

18 in such an outrageous way, if he hadn't made the

19 comments.

20 What he said was that -- to paraphrase:

21 "As soon as I achieved the objective of getting the

22 remarks attributed to me withdrawn and not attributed to

23 me, end of story, it didn't matter to me."

24 Now, he also said at one stage that if those remarks

25 had been said in his presence, he would have challenged

140

1 them immediately so that Mr Cumaraswamy did not go away

2 with any mistaken impression of the view of senior

3 management of the RUC.

4 The fact that no enquiry -- and perhaps in our

5 written submissions we have overstated it. We talked

6 about a formal investigation and that might overstate

7 matters because the fact of the matter is that when you

8 look at, for example, his reaction to the

9 Geralyn McNally dissatisfaction with the complaints

10 investigation, his immediate response to that in terms

11 was:

12 "Why did nobody bring this to my attention earlier?"

13 Given that he didn't take any steps, according to

14 the evidence, to go to Mr White, who had remained in the

15 meeting on his case, or P157 and say:

16 "How did it come to be that Cumaraswamy thinks that

17 I made these remarks?"

18 In our respectful submission there is one obvious

19 answer to that: the reason why he didn't make any such

20 enquiry was that he was aware that the remarks had been

21 made, either because he made them or because he was

22 present when they were made.

23 Now, instead of doing that, what did

24 Sir Ronnie Flanagan do? He wrote to Cumaraswamy and

25 said simply, "I did not make these remarks." Full stop.

141

1 Thereby, we submit, happy to convey the impression that

2 the remarks weren't made at all. That attitude was

3 replicated in his correspondence to the Law Society,

4 where, again, he simply denied that he had made the

5 remarks, thereby again conveying the impression that no

6 such remarks were made.

7 Now, one thing that is beyond peradventure, we

8 submit, is that the impugned words were of course said.

9 It is common case that they were said. And the

10 significance, we respectfully submit, the words bear is

11 obvious: the view of senior management of the RUC at

12 that stage was that some solicitors were indeed working

13 to a paramilitary agenda.

14 We submit that the important fact is not who said it

15 but rather that it was said at all, and that it

16 represented senior management views. And you see that

17 again replicated in the critique which was penned --

18 I think it was penned by ACC White in the aftermath. I

19 do not have the relevant citation for it, but you will

20 recall that it was a pretty trenchant argument and it

21 was basically saying, "We both deny that these remarks

22 were made. However, if they were made, here is what we

23 would like to say about them and this is our

24 justification for saying them." That, in our respectful

25 submission, is really, and is demonstrably, clear it is

142

1 evidence of what was said. It reinforces evidence of

2 what was said at the meeting.

3 So the question -- it wasn't being suggested that

4 this was only Sir Louis Blom-Cooper's view. Clearly

5 what was being suggested was that this was this view,

6 this was our view, and that the critique penned by White

7 after that said, "And here is the evidence for it".

8 So in direct response to the question, "What is the

9 significance of Sir Ronnie Flanagan's evidence that he

10 did not hold such views in relation to defence lawyers?"

11 We say he did hold such views or, in the alternative, he

12 was aware that those in senior management did, and in

13 either event we say the result was the same.

14 Just one point on this issue before I leave it, at

15 paragraph 68 of Sir Ronnie Flanagan's statement he made

16 the following point:

17 "Mr Cumaraswamy was the first person to suggest to

18 me that this may be an issue."

19 I.e. the alleged corruption of solicitors. Now, in

20 our respectful submission that is just completely

21 unsustainable. The evidence rather was that the remark

22 was made and that that remark came from the police.

23 Sir Ronnie Flanagan, on the face of his statement,

24 appeared to suggest that Mr Cumaraswamy saying this was

25 the first that he had ever heard of the suggestion.

143

1 Now, that in no circumstances could be borne out by any

2 of the evidence that you have heard in this case. The

3 evidence was that White had evidence on this on his

4 version of events, he conveyed that to

5 Sir Ronnie Flanagan, the sentiment was expressed in the

6 meeting and that was it. So in my respectful

7 submission, that just can't be borne out.

8 Now, the follow-up question to that is:

9 "What steps did senior management up to and

10 including the Chief Constable, take to address this?"

11 For the reasons I have just canvassed, our

12 submission is that they did hold this view and that from

13 top to bottom this was a refusal, we say, to recognise

14 solicitors as being separate from their clients.

15 Now, on this point -- and this was a point, I think,

16 that was raised with Mr McCollum -- Sir Ronnie Flanagan

17 tended to suggest that there was some sort of order went

18 down to detectives in the holding centre that such

19 comments were not to be made. That was very vague

20 evidence and I would make this submission: it is

21 surprising in the least that such a document hasn't been

22 produced.

23 You also have the evidence of the detectives

24 themselves, the various detectives who gave evidence in

25 relation to the complaints. And you, Sir Anthony,

144

1 frequently asked those witnesses: what sort of training

2 did you get so far as your work was concerned? Most of

3 them -- they were asked and they answered the

4 question -- they essentially got training on the job,

5 but that the only other training they got may be when

6 new legislation come in. I think that was the answer

7 that you were given.

8 So there was no flavour to the evidence to suggest

9 that this was being brought down from above. If this is

10 happening, cut it out, and in our respectful submission,

11 that clearly is what should have been happening because

12 if the senior management of the RUC were aware that this

13 was going on, as we respectfully submit you shall find

14 that they were, then given the dangers inherent in

15 allowing that situation to continue -- and this is

16 a point I will come on to develop shortly -- it is our

17 respectful submission that a very firm line should have

18 been taken on it because of the dangers. Evidence

19 clearly conveys, we say, that it just didn't happen,

20 nothing was done about it.

21 Now, just at this point I would like to address

22 a question that was raised by Dame Valerie in relation

23 to Mr McCollum's submissions last week, and this relates

24 to the question of Geralyn McNally and the ICPC. You

25 will recall that you raised a question which was made --

145

1 I beg your pardon, the submission made at paragraph 49

2 of Sir Ronnie's written submissions at RNI-922-020

3 (displayed). Could we have that, please? Thank you.

4 And the submission made was:

5 "It is clear from Miss McNally's evidence (see

6 above) that there were a number of members of the ICPC

7 who did not support her stance and action. These

8 members criticised not only the handling of the

9 supervision but the failure of the Chief Executive and

10 Chairman to provide Miss McNally with adequate

11 supervision."

12 Then this sentence:

13 "The failure to call any of these members to give

14 oral evidence or provide their witness statements,

15 precludes any adverse findings against

16 Sir Ronnie Flanagan as regards his conduct on this

17 issue."

18 Now, in our respectful submission the point that was

19 made was, Mr McCollum, I think, indicated at that stage

20 that he had seen something in our submissions which

21 brought that into his head. In fact, that's right. In

22 our submissions we raise the fact that Geralyn McNally

23 had complained to Paul Donnelly that one of the members

24 of the Commission had said that she was pursuing her own

25 agenda, or something like that, so far as her conduct of

146

1 these complaints was concerned.

2 Now, I don't wish to say anything more about that

3 other than to say this: that Paul Donnelly in his

4 evidence, you will recall, gave pretty trenchant views

5 about what he perceived the relationship between the

6 ICPC and the police to be at the time he joined. That's

7 the only submission I wish to make about that.

8 But Dame Valerie's query related more to the last

9 sentence there and particularly, I think I'm right,

10 ma'am, what you were questioning was given what happened

11 to Geralyn McNally, is the Panel precluded from the

12 absence of this evidence, these other statements, these

13 other witnesses, from making any findings against

14 Sir Ronnie Flanagan, given that such witnesses haven't

15 attended to give evidence? In my respectful submission,

16 the answer to that is clearly no.

17 If that was the intention of the submission, then it

18 is our submission that that cannot be right. We say

19 that for the following reasons: the evidence clearly

20 shows that the ICPC members would not know of the detail

21 of each individual investigation supervision as it was

22 going on. The evidence was given, I think certainly by

23 Miss McNally and certainly, I think, by Mr Donnelly as

24 well, that the detail of those investigations and

25 supervision remained confidential. They can be

147

1 discussed in broad terms, but couldn't be discussed in

2 detail.

3 So the question was -- the certificate --

4 a certificate of satisfaction being issued by members,

5 in our submission, related only to that member's view of

6 the conduct of the investigation. Nobody else's view

7 was significant. Under the statute, under the

8 legislation, it was what Geralyn McNally thought of that

9 investigation that was important.

10 And when Mr McCollum used the expression as to

11 whether -- I think it was -- and maybe I'm doing him

12 a disservice -- that he raised the question whether

13 Geralyn McNally was right or whether the Chief Constable

14 was right. That, in my respectful submission, is

15 neither here nor there. The question was: was this

16 a proper investigation? Was Geralyn McNally satisfied

17 with it and did she have grounds to be so? That's an

18 entirely subjective matter.

19 But the question about whether or not

20 Sir Ronnie Flanagan should or should not be criticised

21 as regards his conduct of this whole issue is a separate

22 one entirely and one I propose to deal with very

23 shortly.

24 There is clear evidence that Sir Ronnie Flanagan was

25 directly involved in a smear campaign against

148

1 Geralyn McNally which arose after the question of the

2 certificate of dissatisfaction. The point was mooted.

3 Can we see, please, page RNI-925-207 (displayed)? And,

4 again, could you highlight the italicised part of the

5 page? I have lifted this directly from our statement

6 for ease of reference, sir.

7 Now, this is a memo of a telephone call from

8 Paul Donnelly recorded by a member of the Anglo-Irish

9 Secretariat, a member from the Irish side, and he said

10 as follows:

11 "I took a call from Paul Donnelly, chairman of the

12 ICPC, early this afternoon about this development. He

13 has seen the second Mulvihill report and is very

14 concerned that the Chief Constable intends to use it to

15 launch a systematic disparagement of the ICPC in general

16 and of the ICPC supervising member who signed the ICPC

17 statutory statement, Geralyn McNally in particular.

18 "He said the Chief Constable was briefing

19 journalists last night and one journalist who attended

20 had confided that he was sickened by what he heard.

21 Among Donnelly's concerns is that as a result of the

22 Chief Constable's initiative, Geralyn McNally will

23 become a new target for criticism and that this could

24 have wider implications for her security."

25 Now, the points arising from that are obvious. He

149

1 was specifically recording at that point that

2 Sir Ronnie Flanagan was involved in this campaign

3 against Geralyn McNally. We know that that had already

4 started in police authority circles. It had culminated

5 in the article in the Sunday Times, which you have all

6 seen. But this, in our respectful submission was

7 clearly a new development. The fact that Paul Donnelly

8 was raising Geralyn McNally's security at the time is

9 also significant.

10 Allied to this point is the fact that at the second

11 meeting Geralyn McNally had with Sir Ronnie Flanagan --

12 you will be recall this was a meeting with just the

13 three of them, just Paul Donnelly, Sir Ronnie Flanagan

14 and Geralyn McNally -- her evidence was that -- you will

15 recall -- she felt that prior to that meeting taking

16 place, she got the impression that the real business of

17 the meeting had already been conducted between

18 Sir Ronnie Flanagan and Paul Donnelly and she said that

19 this meeting occurred solely for the purpose of trying

20 to dissuade her from issuing her report in relation to

21 the original investigation.

22 Now, she says that when she refused to do that, it

23 was at that point that Sir Ronnie Flanagan brought up

24 the alleged affair between Rosemary Nelson and

25 Colin Duffy. Now, if that's right, we respectfully

150

1 submit -- and if the first point is right, those are

2 matters which are surely worthy of censure and they are

3 reprehensible.

4 Now, so far as that second meeting with

5 Paul Donnelly and Sir Ronnie Flanagan is concerned,

6 he -- Sir Ronnie Flanagan -- appeared to indicate -- and

7 maybe I'm taking this up incorrectly, but he appeared to

8 suggest that that misunderstanding arose out of some

9 discussion about Geralyn McNally's description of P146

10 having raised the moral character of Rosemary Nelson.

11 That, we respectfully submit, you may feel is unlikely.

12 And I also pointed out that when asked about this

13 matter himself, Paul Donnelly denied that any such

14 comment was made and the Panel will recall his evidence

15 in particular that had it been made, he would have

16 responded with vigour, I think was the expression he

17 used.

18 Now, fundamentally the short question for the Panel

19 is: do you accept that evidence? We know that in or

20 about this time Paul Donnelly -- we have just seen it --

21 was aware that Sir Ronnie Flanagan had been involved in

22 a smear campaign, for want of a better expression,

23 against one of his own members. He was asked -- and

24 Mr Phillips pressed him about this matter -- he was

25 asked at a subsequent meeting that he had with

151

1 Sir Ronnie Flanagan, did he raise that question with

2 Sir Ronnie, and his answer was no, he didn't.

3 Now, again, Mr Phillips pressed Mr Donnelly and

4 said, well, surely you could see people were saying

5 there were resonances here with the case of

6 Rosemary Nelson. There were things being said which led

7 to people's lives being endangered. Why did you not

8 raise it with him? Mr Donnelly said as far as he was

9 concerned, this was a time for the healing of relations

10 between the RUC and the public and it was not

11 appropriate to do so. The short question is if that was

12 his view in relation to that much more serious matter,

13 I respectfully submit, was it likely that he would have

14 taken up and challenged him on this with vigour? In my

15 respectful submission, no.

16 The question that then arises -- and I'm dealing

17 with this question now -- is the question of is there

18 a discernible pattern or similarity in detail between

19 the various complaints made by the clients of

20 Rosemary Nelson? If so, what conclusions may be drawn

21 from is this? Does the evidence support the suggestion

22 that this was part of a concerted campaign to discredit

23 the police? Again, sir, this has been addressed at

24 length in our written submissions both in relation to

25 the evidence of other solicitors and in relation to the

152

1 complaints themselves so I only propose to make fairly

2 brief submissions on that.

3 I would like to, before I do, comment on a number of

4 points of detail made by Mr Donaldson. He suggested at

5 one stage yesterday during the course of his

6 submissions, that none of the Lurgan Nine, as he calls

7 them, had made any complaints during their detention.

8 That's not accurate, sir. Both Mr Duffy did and

9 Gary Marshall did.

10 Secondly, he suggested that the statements of

11 the February tranche of complaints --

12 THE CHAIRMAN: Mr O'Hare, I think we might have a break now

13 and we'll break for a quarter of an hour until 20 past.

14 Thank you very much, Mr O'Hare.

15 (4.07 pm)

16 (Short break)

17 (4.23 pm)

18 DAME VALERIE STRACHAN: Before you continue, Mr O'Hare,

19 could I just make sure that I have understood one point

20 that you made just before the break, and this was in

21 relation to Paul Donnelly saying that he didn't hear

22 Sir Ronnie Flanagan make such a remark and, if he had,

23 he would have contested it with vigour.

24 Are you essentially saying that we should not accept

25 his evidence on that point?

153

1 MR O'HARE: What I submit is, firstly and obviously, there

2 is a conflict in the evidence here. Geralyn McNally

3 specifically says that this meeting took place with

4 a view to getting her to change her mind and that it was

5 in that context, when she refused to do so, that the

6 remark was made.

7 The fact that Mr Donnelly says that it didn't happen

8 is something of course the Panel must bear in mind.

9 I accept that entirely. But if there is a choice to be

10 made, in my respectful submission, the evidence of

11 Geralyn McNally is to be preferred, firstly because

12 Sir Ronnie Flanagan -- one assumes when one goes into

13 a meeting with Sir Ronnie Flanagan, the evidence tended

14 to suggest, for example, that he dominated the meetings.

15 Naturally the focus is on him and this goes also to the

16 Cumaraswamy and Parra incident.

17 But the point I make is this: that Mr Donnelly, if I

18 can put this delicately, to a large extent has had to

19 contend with a number of sentiments which were recorded

20 by him at the time these incidents were unfolding ten

21 years ago. He says now that no such remark was made.

22 Had it been made, he would have challenged it with

23 vigour. The point I make is that he was asked about

24 whether he challenged Sir Ronnie in another respect,

25 namely as to Sir Ronnie's involvement in the smear

154

1 campaign of Geralyn McNally and he said no, he didn't

2 do so.

3 Now, at that stage he said a straight answer to

4 a straight question. Now, my submission and my

5 effective invitation to the Panel is that you must look

6 at that evidence and consider whether he is right when

7 he says that (a) it didn't happen, and (b) that he would

8 have challenged Sir Ronnie had such a remark been made.

9 SIR ANTHONY BURDEN: Can I follow up on that?

10 MR O'HARE: Yes.

11 SIR ANTHONY BURDEN: You have an independent body,

12 a relatively new chair. In your submission, what would

13 you perceive the relationship to be between the RUC and

14 the ICPC at that particular time? Was there a deference

15 shown?

16 MR O'HARE: That was certainly the evidence of Mr Donnelly,

17 that when he joined -- I think the expression he

18 actually used was bordering on the sycophantic. So the

19 short answer, yes, that was the evidence, that was the

20 way things were at the time.

21 SIR ANTHONY BURDEN: And at this early stage of

22 Mr Donnelly's appointment, you would have seen that

23 deference, you would suggest that that deference was

24 still evident?

25 MR O'HARE: The question really is a more fundamental one.

155

1 According to the papers that we have seen and according

2 to his evidence, he was raising this point with other

3 people about potential implications with

4 Geralyn McNally's security, but not raising them with

5 the one person, we submit, who was in a position to deal

6 with it.

7 His view was at that time, as expressed to the Irish

8 civil servant, was Sir Ronnie Flanagan is involved in

9 it, in these negative comments. They are adversely

10 impacting on a member of my staff's personal security,

11 and he doesn't apparently bring that up with

12 Sir Ronnie Flanagan, sir. That's the submission I make,

13 sir. It's obviously a matter for the Panel as to what

14 inferences they draw from that.

15 SIR ANTHONY BURDEN: Thank you.

16 MR O'HARE: Sir, can I turn briefly back, I'm afraid, to one

17 item I would like to raise with the Panel in relation to

18 the Cumaraswamy affair and it was in relation to the

19 briefing note or the critique of the Cumaraswamy draft

20 report penned by Mr White. And could we have on the

21 screen RNI-101-217 (displayed)? This is paragraph 21,

22 if you could highlight that, please.

23 You will see that this document was the first

24 expression of any view in the draft report and I think

25 it was dated in March 1998, 13 March 1998. Mr White

156

1 rehearses the fact that the draft report cites the

2 Chief Constable as having expressed the view that some

3 solicitors may in fact be working for the

4 paramilitaries. And he then says this:

5 "I have no recall of this view being expressed and

6 neither, so I understand, does the Chief Constable.

7 Even if such a view was expressed, which I dispute, it

8 would have been made within the strictures of a

9 discussion held in confidence and should not have been

10 repeated in a document for general publication."

11 Now, first and foremost, it is quite apparent from

12 the face of the document, in our submission, that at

13 that stage the gut reaction is to say, "It wasn't said".

14 Secondly, the paper seems to suggest, "Well, it wasn't

15 said," "I didn't say it, Sir Ronnie Flanagan didn't say

16 it". And this is within a comparatively short time of

17 the meeting happening. But interestingly as well the

18 document goes on:

19 "The fact that Mr Cumaraswamy has done so, if

20 allowed to go unchallenged merely repeats and compounds

21 the circumstances which gave rise to the central theme

22 of earlier reports, namely the murder of Pat Finucane,

23 which was attributed to the utterances of Douglas Hogg

24 MP and which Mr Cumaraswamy repeats at paragraph 61 of

25 his report."

157

1 So on a number of levels that document is

2 significant; firstly in relation to what it says about

3 who actually made the remarks and whether they were made

4 at all; and secondly, the fact that they regarded it

5 themselves as it being a matter which was dangerous in

6 terms of publication. In other words, if the view was

7 expressed that solicitors were unduly sympathetic, that

8 that has security implications for the people involved.

9 And that's a clear recognition of that, in our

10 respectful submission.

11 I was dealing before we rose with the question of

12 Rosemary Nelson's clients' complaints and whether

13 a discernible pattern emerged, and what that suggests.

14 And I had indicated that I took issue with a couple of

15 things Mr Donaldson said, namely we suggested that,

16 contrary to his submission, both Mr Duffy and

17 Gary Marshall complained in custody about the matters

18 ultimately alleged by them. And secondly, I think

19 Mr Donaldson suggested that these various statements,

20 the February 1997 statements, didn't emerge until later

21 in the year. And this was perhaps in the context of his

22 central theme, that those complaints were used to

23 bolster the Duffy complaint.

24 It is quite clear, in our respectful submission,

25 from the evidence of Mr Mageean that the statements of

158

1 Gary Marshall, Colm Toman and Barry Toman were all taken

2 by Mr Mageean at the end of February, he thought, and

3 possibly slightly later into the beginning of March.

4 Simply a minor point.

5 Now, the overall question is that because, in the

6 PSNI submission, there is a discernible pattern to the

7 complaints here that that is indicative or supports the

8 contention that these complaints had been made in

9 pursuit of an police agenda.

10 Now, in my respectful submission that does not bear

11 any scrutiny at all and I say so for this reason: if

12 there is a discernible pattern here, it's arguable that

13 the pattern lies between the complaints here, the type

14 of allegation which is made here, and the type of

15 allegation which has been made right the way across the

16 board from various solicitors throughout this

17 jurisdiction. For example, you see one of the

18 complaints here is that Rosemary Nelson was referred to

19 being a money-grabbing bitch, for example. That sees

20 echoes in other evidence elsewhere. It sees evidence in

21 the suggestion made to other clients, "Your solicitor is

22 not interested in you. He is only interested in the

23 money." You see resonances in the personal abuse stuff

24 in evidence of other solicitors as well; some of the

25 more reprehensible things said about Rosemary's physical

159

1 appearance, for example. The sexual stuff, that's

2 resonated elsewhere as well. You will recall the

3 evidence of Mr McMenamin in that regard in relation to

4 two female solicitors in his firm, and you see it

5 resonated elsewhere in evidence in relation to the

6 threats.

7 So the fact that these remarks were all made about

8 Rosemary Nelson in my respectful submission doesn't take

9 the Panel any further in terms of saying that this is

10 solely and simply the result of an anti-RUC agenda

11 because, again, the nature of the complaints here echo

12 elsewhere and right throughout the evidence.

13 Equally, if there is a discernible pattern -- and I

14 am afraid Dame Valerie stole something of my thunder

15 with a question she posed to Mr Donaldson earlier. It

16 could be said that there's a discernible pattern amongst

17 the evidence of the detectives and this was the point

18 that you raised about how none of them had ever heard or

19 expressed an adverse view of Rosemary Nelson. How, if

20 they had heard such a view they would have reported it,

21 no, they had never heard any such thing, no, they had

22 never had occasion to make any such report. And to that

23 might be added the submission that they never heard any

24 of the Special Branch reporting on Rosemary Nelson, and

25 to a man all of them said that.

160

1 Now, I take the point, sir, that canteen culture may

2 be one thing and you may say one thing in the canteen

3 which you may not repeat in interview, but overall the

4 impression must be given on a human level, in my

5 submission, that faced with clients -- and even

6 Mr Donaldson acknowledges -- were unlikely to say

7 anything. On the human level, must there not have been

8 a level of frustration here on dealing with these

9 people? This is not a period of detention lasting

10 a couple of hours, as one might have seen under a PACE

11 arrest, for example. Evidence is that these people were

12 interviewed maybe over 20/25 times during the course of

13 three, four, five, six days.

14 In my respectful submission, even on an human level

15 an element of frustration must have built in there and

16 yet none of these people, none of the interviewing

17 detectives, would countenance that any such thing might

18 have happened.

19 Now, in our respectful submission, firstly and

20 foremost, it is important to recall that in none of

21 cases was there any forensic advantage to be gained by

22 the clients in making these allegations either in terms

23 of a civil claim or in terms of criminal proceedings.

24 In fact of all the clients, I think it was only Mr Duffy

25 who was charged at the end of his period of detention.

161

1 The submission was made in relation to Mr Duffy's

2 complaints -- and this was a case which was made by the

3 interviewing detectives at the time -- that his

4 complaints were used or were being utilised to bolster

5 his defence. It has been acknowledged during submission

6 and I think in response to you, sir -- the evidence

7 against Mr Duffy and the basis for the charges against

8 Mr Duffy came on the basis of one witness of alleged

9 identification or recognition. Mr Duffy made no

10 admissions in interview throughout his period in

11 custody.

12 The allegation that he makes about whether

13 Rosemary Nelson was proud of what he had done could not

14 have benefited him in any way so far as those charges

15 were concerned. And secondly, we say that given the

16 submission I have referred to earlier, how could the

17 complaints in relation to the other clients have added

18 to that, given that that was the case.

19 Mr Duffy's complaints were threefold. Two of them

20 were procedural, the third one was the point that was

21 made to him about when he was asked was Rosemary proud

22 of him. Those matters could not have availed him in any

23 defence to these charges, it was simply not possible.

24 THE CHAIRMAN: The other side of the coin could have had

25 advantages in the minds of the police officers. If they

162

1 thought by making these alleged allegations about

2 Rosemary Nelson, et cetera, they could achieve -- they

3 didn't, but they could have achieved possibly admissions

4 or possibly information. It is understandable that

5 Mr Donaldson wouldn't accept that a possible explanation

6 was the use of unjustified means for what, in the minds

7 of the officers, were legitimate objectives at the end

8 of the day.

9 MR O'HARE: Yes, sir.

10 THE CHAIRMAN: But you say on the other side, so far as the

11 clients were concerned, there was no conceivable benefit

12 to them or to Duffy?

13 MR O'HARE: Yes.

14 THE CHAIRMAN: Other than, of course, the so-called

15 political side to it, which is nothing to do with court

16 process?

17 MR O'HARE: Yes.

18 THE CHAIRMAN: An attempt to lower the estimation of RUC in

19 the minds of in particular the Nationalist community.

20 MR O'HARE: Sir, ultimately that's the challenge for the

21 Inquiry.

22 THE CHAIRMAN: Yes.

23 MR O'HARE: I would acknowledge that. The fact is that no

24 such possibility was countenanced on the part of any of

25 the detectives at all. That is the quandary the Panel

163

1 has.

2 Sir, again, the various evidential issues so far as

3 the complainants are concerned have been set out at

4 length in the submissions that we have made in this

5 regard, and we are mindful of the fact that the Panel

6 has indicated -- you, sir, have indicated that you don't

7 propose to make any factual findings in individual cases

8 as against individual officers.

9 What we submit -- and it is a submission which was

10 made in written form, but we think that it bears some

11 highlighting -- is the evidence of Brian Leeson in

12 particular. Brian Leeson, as you will recall, was

13 a young solicitor who worked for Rosemary Nelson and

14 uniquely, as far as we can see, he was the only

15 solicitor who actually sat in in interview in Gough

16 whilst the client was being interviewed.

17 I seem to recall that the reason he was allowed to

18 sit in was there was some question over the mental

19 capacity of the client. I think it was C204. And he

20 described an incident which occurred whilst he was

21 present and in which he effectively -- he felt -- was

22 abused and intimidated. And the submission we make in

23 relation to this -- and I'll take you to it in brief

24 terms shortly -- was that if such a thing could happen

25 to a professional solicitor, does it really beggar

164

1 belief if somebody said in relation to another context

2 that detectives might say such things or behave in such

3 a fashion to people in isolation, under interview, where

4 there are no independently verifiable means of

5 recording it?

6 I would like the Panel, if I could, to have a look

7 at relevant portion of his statement. It is at

8 RNI-925-122 (displayed). Again, this is lifted from our

9 submissions for ease of reference. The very bottom

10 paragraph, please. And, again, just the italics:

11 "There was also one case where I was attending

12 Gough Barracks where I felt I had been harassed and

13 intimidated. It was the only time I had attended

14 Gough Barracks.

15 "I remember that I was in a room with two police

16 officers and a wee fellow whom I was representing. One

17 of the officers was trying to connect my client to

18 Colin Duffy in a very tenuous way and I said that I felt

19 the line of questioning was tenuous. The officer

20 reacted very badly and cursed and shouted at me. This

21 was amazing, particularly given that I did not think

22 I was extraordinarily out of line with my remark. Maybe

23 I just interrupted his flow. I remember that the

24 officer then moved towards me as if to attack me.

25 I remember thinking that this was crazy. It was like

165

1 being in South Africa and it really wasn't for me."

2 Now, on any showing, in our submission, that is

3 a highly significant incident because (a) as I say, this

4 behaviour and conduct is being exhibited to a solicitor

5 there representing his client in circumstances where the

6 client almost suggests maybe -- Mr Leeson almost

7 suggested, "Maybe I just interrupted his flow". But it

8 was the manner of the reaction which we say is telling.

9 You will recall from his evidence that Mr Leeson was

10 the first witness to give evidence before the Inquiry

11 and you will recall in particular that he told the Panel

12 that he was very deeply affected by the murder of the

13 two police officers in Lurgan in June of 1997, signed

14 the book of condolence, and he felt -- I think using the

15 word in fairness to him, uncomfortable about working on

16 the case.

17 This case, it would seem, was associated with those

18 murders and we respectfully submit that if that conduct

19 is happening to a solicitor in circumstances described

20 and if you are satisfied that that happened, that is

21 a hugely telling incident, in our respectful submission.

22 Now, when one looks at it, the allegation clearly is

23 that this reaction from the point of view of the police

24 officer is one of hostility and a threat of violence,

25 and it occurs at a point when, as far as the solicitor

166

1 is concerned, the police officer is attempting to link

2 the crime to Colin Duffy in a tenuous way.

3 Could I ask the Panel then to look at RNI-210-228

4 (displayed)?

5 THE CHAIRMAN: Of course it may be, looking at it in human

6 terms, an indication of how frustrating interviewing

7 suspects can be and the result can be that an officer

8 will overstep the mark --

9 MR O'HARE: Yes.

10 THE CHAIRMAN: -- through frustration.

11 MR O'HARE: That's the point I make earlier, that when

12 Mr Donaldson's submission really is these officers are

13 professional, nothing like this would happen, they

14 wouldn't allow anything like this to happen, in our

15 submission, when you look at something like that, it is

16 not surprising -- all I submit is that it is not

17 surprising, given that that might happen to a solicitor,

18 that something along those lines of an unsavoury nature

19 might happen alone with the client. That's the point

20 I make.

21 Now, this document is a statement which was made by

22 Detective Constable Walker and it is likely that this

23 document covers the relevant interviews, we submit. You

24 will see that this concerns an interview with 204 on

25 26 June 1997. He's companied by P121.

167

1 Now, those two particular officers featured largely,

2 obviously, in the various complaints that we have been

3 looking at. You will see that Mr Leeson is present, the

4 witness is cautioned -- or the suspect is cautioned and

5 the interview then proceeds.

6 Now, at page RNI-210-235 (displayed), if you would

7 turn over to that, please, at the very bottom of the

8 page:

9 "Has Colin Duffy ever been in your house?

10 "Answer: Yes.

11 "Question: Has [redacted] ever been in it.

12 "Answer: No.

13 "Question: Do you associate with either of them?

14 "Answer: No.

15 "Question: Why would they not associate with you?

16 "Answer: Because I was outspoken about the killings

17 at the lough.

18 "Question: Have they ever been in any car you

19 owned?

20 "Answer: Not to my knowledge.

21 "Question: Did you know [redacted]?

22 "Answer: No.

23 (Explained who he was. He remembered.)

24 "Question: Did you go to his funeral?

25 "Answer: Yes, me and our [redacted] went.

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1 "Question: Did you see Colin Duffy at that funeral?

2 "Answer: I don't know whether they were at it or

3 not.

4 "Question: You gave Colin Duffy a lift to the

5 graveyard?

6 "Answer: I might have, all right.

7 "Question: So there was a sighting of Colin Duffy

8 in your car?

9 "Answer: Yes."

10 Now that, on one view, is the incident perhaps that

11 Mr Leeson is referring to where he says that the effort

12 is being made to connect the suspect with Mr Duffy.

13 What is interesting, in our respectful submission,

14 is that no mention of any untoward altercation with the

15 solicitor is mentioned at any stage in these notes. And

16 secondly, if you look at the very last page, the last

17 substantive page, page RNI-210-249, please (displayed):

18 "Is there any question you want to ask us ..."

19 About halfway down. If you just highlight that,

20 please:

21 "Is there any question you want to ask us?

22 "Answer: No, not really. I would have nothing to

23 do with killings. I wouldn't have blood on my hands.

24 "Question: Yet you have told at least two women you

25 are in the Provisional IRA and shot a soldier?

169

1 "Answer: That was just through drink.

2 "Question: Was it just through drink that you

3 threatened [blank]?

4 "Answer: I never went near [blank]."

5 Then this:

6 "When did you first have dealings with

7 Rosemary Nelson solicitors?

8 "Answer: The day I was arrested.

9 "Question: How did you come about asking for them?

10 "Answer: It was the only name I could think of at

11 the time.

12 "Question: Could you not think of [blank's] name?

13 "Answer: No."

14 Then the interview then terminated.

15 Now, in our respectful submission, on its face that

16 is an instance of Rosemary Nelson's representation of

17 this man being raised apparently for no good reason.

18 You will recall that the evidence of

19 Detective Constable Walker in relation to the Duffy

20 complaint, when -- this was in response to the

21 allegation, "Is Rosemary Nelson proud of you". He

22 actually said it wouldn't have availed us at all, it

23 wouldn't have done us any good at all to bring up

24 Rosemary Nelson's name. Why would we bring up

25 Rosemary Nelson's name? In our submission, that in

170

1 itself is significant because it shows quite clearly

2 that completely out of context, not related to any

3 aspect of the enquiry, Rosemary Nelson's representation

4 of this client is being questioned.

5 The Panel then --

6 THE CHAIRMAN: Are you moving on to something different?

7 MR O'HARE: Yes, I am, sir, I beg your pardon.

8 THE CHAIRMAN: I think we will adjourn now, shall we? Thank

9 you very much, Mr O'Hare. 10.15 in the morning.

10 (4.50 pm)

11 (The Inquiry adjourned until 10.15 am the following day)

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3 Closing submissions by MR DONALDSON .............. 1
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Questions from THE CHAIRMAN ...................... 91
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Questions by DAME VALERIE STRACHAN ............... 102
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Closing submissions by MR O'HARE ................. 112
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