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Full Hearings

Hearing: 30th April 2009, day 123

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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 Thursday, 30 April 2009
commencing at 10.15 am


Day 123

 

 

 

 

 

 

 


 

1 Thursday, 30 April 2009

2 (10.15 am)

3 THE CHAIRMAN: Yes, Mr Egan?

4 Closing submissions by MR EGAN

5 MR EGAN: Sir, I'm very grateful for the time you have

6 provided us.

7 THE CHAIRMAN: Not at all.

8 MR EGAN: I'm sorry to have to ask for it, but it was

9 particularly useful. It involved a query from one of

10 the family members.

11 Can I, therefore, commence my closing submissions on

12 behalf of the Senior Management Team? The submissions

13 will address the matters of due diligence and

14 obstruction and it may help, I think, if I set out very

15 briefly the form those submissions will take.

16 We were originally given a very generous length of

17 time, which I think I can confidently say we will be

18 comfortably under, of course dependent on any enquiries

19 made by the Panel. But what I propose to do -- or what

20 we propose to do, should I say, because you will be

21 hearing two advocates, you will probably be relieved to

22 hear, in this case -- we will address the due diligence

23 matters dealing with the five matters addressed in the

24 12 January 2009 letter. We will split that up between

25 us. I'm going to deal with A to C and D, Mr Griffin

 

 

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1 will address D, which is victimology. Mr Griffin will

2 also assist the Panel on the question of obstruction.

3 In relation to A to C and to E, because of the

4 obvious sensitivity of some of the material this is an

5 exercise which has to be conducted with a considerable

6 amount of care. And to that extent, I'm particularly

7 grateful to the Inquiry officers who, with their

8 assistance, enabled to us scan and distribute what is

9 effectively a -- what we regard as a safe speaking note.

10 And I will go through that, if I may. But obviously I'm

11 going to have to be very careful in relation to some of

12 the submissions that I make.

13 We prepared that because it occurred to us that in

14 a public inquiry the most important matter, it may be

15 thought, is to do as much of the business of the Inquiry

16 in public, particularly for the sake of those who may

17 not be privy to all the material.

18 The Senior Management Team. The Senior Management

19 Team were a team -- I place emphasis on that -- and like

20 any good team they are made up of the four principal

21 members you heard give evidence, very different persons

22 with very different approaches and personalities. That

23 ought to be a strength, and in this case it was.

24 I hope it is not inappropriate for me to remind you

25 of our opening remarks, which are actually made one day

 

 

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1 short of a year ago, on 1 May 2008. You can find them

2 where I deal in brief with the personalities you will be

3 hearing from, reference Day 13, page 48, line 5 to

4 page 53, line 24. There is just five pages of it and

5 I don't propose to go to it but I hope and trust that if

6 those comments about the Senior Management Team and the

7 personalities are reread, we will be shown that those

8 remarks have been confirmed by the evidence that you

9 have heard from them and from others.

10 It is a real feature, is it not, in this case that

11 four such very different personalities from very

12 different backgrounds, with very different skill sets,

13 could and did work together and ended up, even in 2009,

14 ten years thereafter, with a continuing genuine

15 professional regard for each other. And that is why

16 I place emphasis on the word "team" in Senior Management

17 Team, and the reality is they were a good team because

18 their different skills and experiences brought different

19 skills to bear on what was undoubtedly a very difficult

20 exercise and they remained a good team because they were

21 all fiercely committed to bring the murderers of

22 Mrs Nelson to justice.

23 Now, it is not in any way binding on the Panel at

24 all because the Panel will, of course, form their own

25 view on the evidence of the performance of the Senior

 

 

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1 Management Team, but it may be telling in this Inquiry

2 that the family representatives, with a keen interest

3 and knowledge of the detail of the case, are of the

4 opinion that the Senior Management Team did all they

5 could in a reasonable and considered way to investigate

6 this murder. I make that submission with a small voice

7 because I am aware it is not for the family to decide

8 that, but it may be significant, and surely it must be

9 a comment I'm entitled to make, to draw attention to an

10 inquiry ten years on, where the family representatives,

11 having heard all the evidence, are of this view.

12 Now, I'm not, sir, in, I hope, a strict obedience to

13 the very helpful letter dated 22 April, going to reread

14 our submissions, or indeed going to reread any part of

15 them, but I'm going to take just one particular matter:

16 context. Context in this case is, in everybody's

17 submission -- I think this is probably a consistent

18 thread -- important. Northern Ireland in 1999 was

19 different from anywhere else.

20 Now, the Senior Management Team were well equipped

21 to deal with that, with their bedrock of experience from

22 their officers with RUC, now PSNI, experience. And you

23 have heard the evidence about that. May I take just one

24 example of where context is very revealing in this case

25 as far as the Senior Management Team is concerned.

 

 

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1 Could you put up, please, on our submissions,

2 RNI-923-013 on the screen, please (displayed)? Thank

3 you. And could you highlight paragraph (b)? This is

4 paragraph 28 of our open submissions, and the reason for

5 highlighting this -- and you will, sir, I know, have

6 read it -- this is under a section, the previous page --

7 there is no need to go through it -- under "Public

8 attitudes to the police", and obviously it sets out

9 a situation that is unusual in a normal policing

10 context.

11 The Pat Finucane Centre had set up a facility after

12 the murder to facilitate members of the public who did

13 not want to speak to the RUC to make statements about

14 the murder. Despite Mr Port's considerable efforts, the

15 statements obtained were never made available to the

16 MIT, a situation which Mr Port described as

17 disappointing and frustrating, and there has been to

18 deal of evidence about that that I don't need to go

19 into.

20 However, there is an important matter that arises

21 out of this, which is telling as far as the diligence of

22 the Murder Investigation Team is concerned. I venture

23 to make the submission, I hope uncontroversial, that it

24 is an unusual position for a Murder Investigation Team

25 to be aware that there is in existence statements and

 

 

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1 not have access to them and that, of course, is a very,

2 very unusual part of the context in this case. That in

3 itself would be justification enough for drawing your

4 attention to this. But it is the way this matter was

5 dealt with that may be even more telling.

6 The family in their submissions -- I think, it is

7 Part 3 but the reference is RNI-925-025 -- could we put

8 that up on the screen, please, RNI-925-525 (displayed)?

9 Dealing with the question of helicopter activity, could

10 you highlight the paragraph that begins:

11 "In statements given to the Pat Finucane Centre ..."

12 Yes, that's very helpful. Thank you very much.

13 Now, it sets out therein what appears in a document,

14 "Rosemary Nelson: Life and death of a human rights

15 defender", published by the Patrick Finucane Centre. It

16 is not scanned on to our system, but I think it is

17 available and it may very well be that the Inquiry have

18 access to it, and it can certainly be obtained. I'm

19 assuming that's the position at any rate.

20 Now, in that particular list are a number of

21 extracts from what is contained in that document.

22 Obviously the documents that form the basis were never

23 available to the MIT, but may I show you, please, one

24 particular document, which has lately been scanned on

25 the system for this particular purpose, RNI-911-712,

 

 

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1 please (displayed). Thank you.

2 Could you go to RNI-911-713, please (displayed)?

3 I hope ... I'm one page out. Depressingly, I'm more

4 than one page out. Could you go to RNI-911-714, please

5 (displayed)? RNI-911-715 (displayed)? Thank you. It

6 is RNI-911-715. I started at RNI-911-712.

7 Now, you will see there that comparing what was in

8 the family document -- could we put the two documents

9 side by side, please? Thank you. That's very helpful.

10 You will see that what has actually happened here is

11 that the analyst of the Murder Investigation Team has

12 analysed the short information -- I'm using here the

13 family's submissions; the Patrick Finucane document

14 doesn't add a great deal more -- he is using the short

15 information contained therein in order to check and

16 analyse the information that the Murder Investigation

17 Team have.

18 THE CHAIRMAN: RNI-911-715 is the MIT analyst document?

19 MR EGAN: Yes, that's right.

20 THE CHAIRMAN: Thank you.

21 MR EGAN: I'm using that, sir, because it is a later

22 document, giving you these dates -- the copy of the

23 report, the Pat Finucane report, came into the

24 possession of the Murder Investigation Team on

25 25 May 1999. A request was made on 8 July 1999 to

 

 

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1 commence analysis and that was developed through actions

2 taking place in October moving into 2000. There was

3 a great deal of reporting and analysis done, and you

4 will know, sir, from your examination of the evidence in

5 this case, a huge amount of work was done in this. We

6 are using the analyst report as a distillation of all

7 the work which was done by the MIT up to the time the

8 analyst reported. It is used for convenience, and the

9 reason I take perhaps rather a long time to make those

10 comparisons, one needn't really go past the first

11 example.

12 10.45, a helicopter observed above Ashgrove areas,

13 people go to mass. If you look at what the analyst

14 said, there is no record of any helicopter operation

15 over Lurgan at the time specified:

16 A Wessex helicopter -- that wouldn't be the kind of

17 helicopter, I think, that was referred to -- is recorded

18 as:

19 "... passing through the Lurgan area between 10.40

20 ... but there is nothing to suggest that it loitered in

21 any way nor that it performed any function."

22 The analysis goes on in a great deal more detail and

23 what is it is seeking to do, it is trying to seek to use

24 the information from the Patrick Finucane Centre in

25 order to develop the information that the MIT have.

 

 

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1 Now, that raises, in my submission, two very powerful

2 points. Firstly, it is unusual -- forgive me for

3 repeating it -- for a murder investigation team to only

4 have what is contained in that document. Why should

5 they not have the statements? We know they didn't. No

6 wonder Mr Port was so frustrated. But if you need to

7 find an adjective to describe the performance of

8 actually taking what you have got and seeking to develop

9 it as much as you can in this way, the adjective,

10 I venture to suggest, would be "diligent".

11 More to the point, that continued -- I think the

12 analyst's report is 2003 -- it is continuing trying to

13 develop work that the MIT are doing and that is

14 a compelling example, is it not, that far from, as has

15 been suggested -- and in my submission the evidence

16 proves otherwise -- but as has been suggested the MIT

17 had a closed mind and were only intent on one particular

18 hypothesis -- that the MIT were keenly aware that there

19 was so much more to this than just concentrating on one

20 particular set of suspects. Everything had to be

21 considered, and that continuance of that through 2000,

22 2001, 2002, 2003, is a stunning example, I venture to

23 suggest and submit, of an open mind. But in reality,

24 the telling point is what's behind it, isn't it? This

25 is diligence at its most perfect exposition.

 

 

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1 Now, as I have said, I will come on, if I may, very

2 briefly to deal with the comments that we make in

3 relation to the very helpful letter we received on

4 12 January 2009 setting out the various aspects, and I'm

5 going to deal with four of them. This commences at

6 RNI-923-100, I hope. We set out therein what is

7 contained in those four subjects that are very, very

8 well-known, I know, to the Panel.

9 In relation to these matters, there is a very close

10 relationship between the four of them, and underpinning

11 them is the question did the SMT keep an open mind in

12 the conduct of their investigation. Can I, please,

13 repeat what is said in our open submission at

14 paragraph 178, quoting Sir David Phillips:

15 "An open mind is not a vacant mind; an open mind

16 involves keeping a careful look at all the options."

17 Exhortations to keep an open mind are easily made

18 and it could be stated all the time, "You must keep an

19 open mind". But an open mind means just that: remaining

20 open to contrary views. A closed mind is where one

21 excludes other theories because they don't fit into your

22 own chosen one. There has been no evidence that the SMT

23 did that.

24 The kind of examples that are given: the very famous

25 RIPA case, which led to the creation of the HOLMES

 

 

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1 system of people being excluded because they didn't have

2 accents from the northeast. There are many other

3 examples in investigative history. There is no evidence

4 that anything like that appears in this case.

5 An open mind does not mean an empty mind. It may

6 involve focus and focus is a slightly dangerous word in

7 these circumstances because it can sometimes raise the

8 question that if you are focusing on A, you are not

9 focusing on anything else. And we say with the greatest

10 of respect that maybe focusing on these four things --

11 or five matters in the 12 January -- may carry with it

12 the danger that that's all the MIT were doing. It

13 wasn't.

14 Evidence of focus, of course, where people are

15 committed and determined, as the SMT undoubtedly were,

16 can be used to support an allegation that the person so

17 focused has a closed mind. And in our submission, at

18 paragraph 101, we criticise the concept of

19 deconstructing a murder investigation, particularly

20 a continuing murder investigation, because one of the

21 perils of such deconstruction is it can fail to

22 recognise what the investigators were doing -- can I use

23 the expression -- in real time; that is as the matters

24 developed. The murder investigation, of course, remains

25 live because tragically the murderers of Mrs Nelson

 

 

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1 remain unconvicted.

2 But our primary submission in relation to all this

3 is as of 30 April 2009, there can be no proper basis for

4 excluding the Mid Ulster LVF and those individuals which

5 are described in paragraph (b) as being suspects in the

6 murder of Mrs Nelson.

7 Moving on to paragraph 5 of this submission at

8 RNI-923-101, I raise therein a number of questions in

9 relation to what may very well be appropriate to ask:

10 what was the early intelligence, what's capable of

11 validating. I hope those are sensible questions, but of

12 course it is a matter for the Panel and their much

13 greater experience to perhaps apply themselves to that.

14 But it may be thought that those are sensible and fair

15 questions.

16 And one of the things that we do urge is that any

17 kind of analysis of this question involves the

18 fundamental question of identifying what the

19 intelligence was and what, for example, could be

20 described as the early intelligence. And it is here, we

21 say, that the AT err because while identifying what

22 validation may consist of, it fails to identify when

23 such validation has taken place -- and I will deal with

24 the details that of in a second. But validation

25 commenced from the very earliest stages in this case and

 

 

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1 that's absolutely vital, and that is the evidence, the

2 early intelligence -- I hope I can be forgiven for

3 paragraph (a) which states the glaringly obvious.

4 Obviously that means intelligence which was received

5 early, but it does have a certain amount of force in

6 this case because there was a great deal more

7 intelligence than was suggested by the AT. And in

8 relation to that intelligence, the evidence is that the

9 SMT made strenuous efforts to develop the intelligence

10 themselves by proper validation and enquiry from the

11 earliest stages, were able to observe its development by

12 looking at it with other sources of information and

13 other intelligence, and were able to observe the almost

14 complete lack of other verifiable intelligence by

15 pointing to other suspects. But where any intelligence

16 was received, it was vigorously researched and taken as

17 far as was possible. And there is no, I submit,

18 suggestion that that is other than the case.

19 Validation raises a number of questions, and I give

20 the dictionary definition of valid there. I mean,

21 obviously, that's for the Panel's consideration.

22 I suppose it is a common sense English word, and

23 validation will be understood by an expert tribunal to

24 be an important matter to focus upon.

25 The AT report says that validation should have been

 

 

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1 regarded as a matter of urgency, and there is only an

2 acknowledgment of partial validation, but in fact the

3 evidence is that that was not the position at all.

4 I use the word throughout this submission -- and it may

5 be an odd word to use -- "triangulation". It comes from

6 Mr Port, and in my submission it is a rather good

7 example of how you look at material. You look at it and

8 you see how it compares with other material and

9 you weigh it, and I have introduced therein a very large

10 quote of transcript from Mr Kinkaid. I'm not going to

11 read all of this and I know, sir you will have seen it.

12 It is probably a telling piece of evidence.

13 But broadly, what Mr Kinkaid is saying is that right

14 from the very beginning he validation commenced, they

15 were asking the questions. And perhaps at this stage it

16 may be appropriate for me to deal with policy

17 decision 19 because one of the matters that is raised in

18 your letter of 22 April is whether the first requests of

19 SB were too narrowly confined. Sir, you will remember

20 that. Policy decision 19, please, at RNI-616-777

21 (displayed). Could you blow 19 up for us, please?

22 Thank you very much indeed. Mostly unredacted.

23 Now, in the course particularly of his evidence --

24 obviously Mr Kinkaid was asked a great many questions,

25 often by the Panel in relation to this matter and I can

 

 

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1 give you references and I'll refer to some of it. But

2 it is important to identify first of all in relation to

3 this policy decision what it is, when it took place and,

4 perhaps also importantly, what it isn't.

5 First and foremost it is dated 16 March 1999, very

6 early, before, in fact, the receipt of the early

7 intelligence. That is the way that is described. It is

8 very early and it is important to identify, we submit,

9 that this was an early distillation of the purpose of

10 the MIT, which was subsequently confirmed and added to

11 by meetings between the MIT and Special Branch. And in

12 the course of that, Mr Kinkaid was asked questions about

13 this and gave answers to that effect.

14 It was understood to encompass the request relevant

15 information regarding Mrs Nelson's murder and was to

16 assist the passing of such information between

17 Special Branch and the MIT. It has not been pleaded by

18 any owner of intelligence that the terms of the request

19 was construed narrowly at all. How could it be? As

20 Mr Kinkaid himself said, transcript reference Day 105,

21 page 47 -- there is no need to turn that up -- paragraph

22 number 5 -- it is not paragraph. Number 5 itself asks

23 that Special Branch will provide intelligence on those

24 suspected of involvement in the murder. That is open

25 and more to the point and vital not to overlook, 6:

 

 

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1 "Special Branch will provide ..."

2 That is B567:

3 "... as liaison officer to the Inquiry ..."

4 The reasons for that:

5 "... to ensure that the most efficient use is made

6 of the intelligence and that all such intelligence is

7 made available to the Inquiry team."

8 Mr Kinkaid did not stop there. Mr Kinkaid's

9 approach continued throughout the meetings he had with

10 Special Branch. I give as an example D95, the meeting

11 of 26 March 1999, simply because Mr Kinkaid was asked

12 about it at Day 105 at page 47, and he was actually

13 questioned, perfectly fairly, by Mr Phillips, as one

14 would expect, along the lines of, "Do you think you

15 might have been a bit robust here?" et cetera, rather

16 the suggestion being -- suggestion is pitching it too

17 high I think -- but perhaps giving rise at any rate to

18 the proposition that he might have upset a few rather

19 more delicate flowers in Special Branch by being rather

20 more robust than he needed to be.

21 Mr Kinkaid answered those questions in

22 a straightforward way and I would apply myself to his

23 evidence. He took this decision to put this in writing,

24 which was quite innovative. It had never been done

25 before. You will remember the evidence. Special Branch

 

 

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1 had never had this before and one of the reasons he took

2 it was because Mr Kinkaid, as the SIO, identified that

3 this was an unusual and an exceptional case. And on

4 16 March 1999, the day after the murder, the SIO had

5 identified that intelligence would be central and

6 important in this case and would need to be properly

7 sought and sought after.

8 And I hope I'm seen to be making a respectful

9 submission when I say such a matter put into writing --

10 it could have been given orally in a meeting -- should

11 not be construed as a requisition on title or, indeed, a

12 demand upon a bank. It is an indication that on

13 16 March the SIO wants to get going, and in many ways it

14 is not so much the fact that there is plenty of open

15 requests there, it is the fact that the identification

16 of the liaison officer and the reason for it, to make

17 the most efficient use of intelligence and all such

18 intelligence to be made available to the Inquiry team.

19 And it is for that reason, submits the SMT, that that

20 policy decision is a telling example of a correct

21 approach by a diligent investigating officer.

22 Now, moving on -- and I move on to RNI-923-104 of my

23 speaking note -- validation could consist -- and I give

24 the various matters that validation could consider.

25 I do apologise, this is fairly obvious stuff; I'm aware

 

 

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1 of this. But in many ways, B503's comment -- and it is

2 the reason we give it at paragraph 31 -- is actually

3 quite telling because -- I am afraid I must make the

4 comment -- it is sometimes not easy to see where in the

5 assessment team report this kind of matter has ever been

6 considered. The best corroboration, said B503, Day 94,

7 has always been if you have another source that was

8 getting their intelligence from a different person, as

9 it were. Obviously if you could have a number of

10 different sources reporting the same intelligence, that

11 was very good corroboration. That sits easily and

12 conveniently with Mr Port's description of triangulation

13 and in fact shows, if I may say so, what a neat phrase

14 that is for this exercise.

15 Looking at other material obviously may serve to

16 confirm intelligence. Seeking information from the

17 owners as to the reliability of the source is an obvious

18 matter, seeking further information in order to develop

19 or enquire.

20 You have heard evidence from a number of different

21 sources in open session about this. Mr Humphreys, with

22 his experience, was aware and is aware of the capacity

23 of other intelligence to be used in the validation

24 exercise and told you, as one would expect, with his

25 experience.

 

 

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1 Then the next question: what opportunities were

2 there to validate the early intelligence? Well, this

3 again raises the vital issue of context. In 2009,

4 Article 2 issues are prominent in all of our minds in

5 relation to these matters, but in 1999 would the

6 position in Northern Ireland really have been very

7 different?

8 As everybody has seen -- and I digest some of the

9 evidence here, but perhaps it may be that the Panel

10 didn't need to hear it. Obviously CHISs are potentially

11 at enormous risk in any environment, but in

12 Northern Ireland probably more than any other, and the

13 evidence and the history of it all has shown that to be

14 the case.

15 And those matters are of central importance in

16 assessing the efforts of the SMT. In fact it is odd,

17 isn't it -- I use the term in the note "ruffle

18 feathers" -- but it is an indication, isn't it, that the

19 Murder Investigation Team in this case probably went

20 further to validate and develop that had ever been

21 achieved with Special Branch in this environment,

22 certainly that was M540's evidence. And you will

23 remember his experience and length of service in

24 Northern Ireland is probably unparalleled throughout the

25 Troubles.

 

 

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1 The consistent evidence is that the SMT were told

2 that their intelligence was reliable. Move over the

3 page. I make the comment, because there has been quite

4 a bit of evidence about this, the proliferation of the

5 term B2, and I suppose one really could be forgiven for

6 the comment one wonders why people bother if everyone's

7 a B2. And in fact, there was one person's evidence,

8 B597, that seemed to suggest that B2 meant it was

9 reliable; the system being used, in other words, to

10 delineate the ones that weren't B2 as being less

11 reliable. Well, it is not necessary for me to criticise

12 that approach, but it doesn't seem to be perhaps

13 terribly illuminating.

14 The evidence is that -- and certainly

15 Special Branch's witnesses have said, as one would hope

16 would be the position -- it wasn't in their interests to

17 place inaccurate information into the investigation.

18 And, therefore, the SMT cannot be criticised for relying

19 upon what they were told.

20 Well, we set out ways in which intelligence may be

21 validated and we set out references as to how that was

22 done. Taken overall, it is our submission that the SMT

23 did all they could to fully validate any intelligence

24 they were given.

25 It is worthy of overall comment, is it not, that if

 

 

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1 any one matter threatened the relationship between MIT

2 and SB, it was the implacable resolve of Mr Port to

3 identify the Special Branch CHISs. This is being

4 examined by Mr Griffin in due course under the heading

5 of obstruction, but surely it is the most cogent

6 evidence of his resolve. In fact, if I could be

7 forgiven for just referring you to one matter in our

8 open submissions, RNI-923-080, please, paragraph 259

9 (displayed), and three lines down, please:

10 "This is because the investigation was headed by

11 an SMT who, there is no dispute, exercised clear

12 leadership and headed a team whose bona fides commitment

13 and dedication are similarly not in issue."

14 That is the evidential position, I submit:

15 "The approach of the MIT under Mr Kinkaid and under

16 Mr Port and Mr Provoost was relentlessly to pursue

17 relevant lines of enquiries, including to repeatedly

18 press for greater access to sensitive national security

19 from Special Branch than had ever previously been

20 disseminated."

21 Remember M540's evidence:

22 "Where the structures for this unique investigation

23 did not exist, the SMT invented them and they have stood

24 the test of time, in some cases becoming standard

25 practical in Northern Ireland and elsewhere. The SMT

 

 

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1 were constantly pushing at the boundaries of what was

2 possible in the context of policing in Northern Ireland

3 and, indeed, in the conduct of its operations in

4 England."

5 And that is what the SMT did.

6 Could I ask us to move, please, to my document

7 RNI-923-107 (displayed). I hope 25 is seen to be

8 correct. But 26 is actually a very important paragraph,

9 I submit, dealing with the undercover operation in

10 relation to Operation George because -- and I'm sure

11 this has already been identified by the Panel -- it is

12 vital to identify that Operation George was from its

13 inception a real and genuine attempt to use intrusive

14 surveillance to develop the early intelligence. That is

15 Mr Kinkaid's evidence and, indeed, it is shown by the

16 evidence about it. I'll move on, if I may, to (b),

17 "Hypotheses".

18 At 28 -- I have lost a paragraph -- the overwhelming

19 probability, we submit, is that Mrs Nelson was murdered

20 by Loyalist terrorists but that didn't mean closing

21 one's mind to anything else despite -- and obviously

22 what Mr Harvey says is -- we will apply ourselves to.

23 But in considering probability, the most relevant

24 question was likely to be which Loyalist terrorists, and

25 the early intelligence pointed unerringly to certain

 

 

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1 members of the Mid Ulster LVF and that intelligence was

2 corroborated, we suggest. For the SMT not to have --

3 and this is an important point, I submit. For the SMT

4 not to have focused on those individuals would have been

5 a serious dereliction of duty and that focus had to

6 continue until there is a proper basis for eliminating

7 the suspects.

8 Intelligence that the SMT did not see but it is now

9 in evidence does nothing to raise any doubt as to the

10 correctness of the SMT's focus. In fact some of it

11 actually further validates the early intelligence, and

12 that is a telling point. In many ways, if later

13 undisclosed intelligence did in fact raise a query about

14 it and a real doubt about it, I'm sure this Panel in

15 fairness would say, "We can't take that against the SMT

16 because they didn't know it". But actually it is a fact

17 in this case that the intelligence which has been now

18 seen and identified as not disclosed to the SMT does no

19 damage to the focus that the SMT had.

20 The SMT refute that they only concentrated on one

21 hypothesis, and in relation to other suspects and

22 indeed -- one sees the performance in relation to the

23 Patrick Finucane Centre -- all other kinds of matters,

24 enquiries that went on at the time outside A, B, C, D,

25 E, are a good illustration of that. They examined each

 

 

24

 

1 and every bit of intelligence.

2 We do respectfully suggest that care must be taken

3 with the word "hypothesis" because in an exercise like

4 that, which is trying to ensure the conviction of

5 defendants for serious crime, the word "hypothesis" is

6 a rather -- an unusual one and may not actually be quite

7 fitting. M540 gave evidence about it and emphasised the

8 distinction -- I give the reference there -- and in my

9 submission that's a distinction which is well made.

10 A hypothesis in dictionary terms means a supposition

11 made as a basis for reasoning, and of course one can sit

12 around and make suppositions to see whether they could

13 form a basis for reason. But in this particular case

14 the involvement of the Mid Ulster LVF and the suspects

15 who feature in paragraph (b) went far beyond

16 supposition, particularly when intelligence which was

17 given was corroborated in material respects. And there

18 was no issue, was there, in this case that intelligence

19 was always likely to be very important? It was

20 identified at a very early stage by the SIO -- I have

21 already alluded to, Mr Kinkaid -- it was identified by

22 Kent. Everybody knew that. And once the conventional

23 investigation failed to produce investigation of the

24 murders, as Mr Port said, intelligence was vital.

25 This is not uncommon in security-related murders in

 

 

25

 

1 Northern Ireland. The credible early intelligence and

2 its subsequent corroborative material indicated that

3 Mrs Nelson was murder by a Loyalist paramilitary group.

4 That wasn't a reason for cutting out any other enquiry

5 and no such enquiry was cut out, but it was a reason for

6 focusing upon that, carefully and diligently as the SMIT

7 did. It was likely to be the Mid Ulster LVF, possibly

8 with assistance from another Loyalist group, and certain

9 individuals were involved.

10 Mr Port gave evidence that he regularly questioned

11 Loyalist terrorist involvement many times and always got

12 the same answer. That is what has to be done if you

13 have an open mind: You must revisit. And he gave

14 evidence that he did do.

15 The hypothesis, if such it is called, but I say it

16 wasn't a supposition, was sensible and reasonable. As

17 Mr Provoost said -- and, perhaps tellingly, using common

18 sense, "It was our best lead". It was only MI carefully

19 looking at this that the proper picture emerges. The

20 explanation for their focus lies in the material that

21 they obtained.

22 Now, an analysis of the material requires a careful

23 identification of the intelligence and

24 interrelationship, which obviously I can't do in this

25 forum. But it also needs to be factored into material

 

 

26

 

1 in possession of the MIT, such as the various expert

2 opinions about the device together with knowledge within

3 the MIT that the device was not Republican, see M540 at

4 two days. And, indeed, I think, although he didn't give

5 evidence, the evidence of Mr Todd.

6 The real significance of this evidence was that it

7 was a Loyalist device. The SMT never thought the

8 devices were similar. They clearly weren't, and that

9 was identified at an early stage by Mr Kinkaid. You

10 will remember he made an entry in his journal on 7 April

11 drawing, as it were, Sir David Phillips back, or the

12 Kent officers back, from the idea that this could be

13 done on almost like a similar fact basis of bombs. It

14 couldn't be. The evidence wasn't there and Mr Kinkaid

15 never thought it was.

16 The fact that the claim of responsibility was made

17 at 20.45 on 15 March by a body claiming to be the RHD --

18 and you can look at Mr Provoost's evidence, we can look

19 at Mr Provoost's evidence, to see how they regarded

20 that. But as Mr Kinkaid again says, Mr Ayling massively

21 overstates his case on this. We never suspected that

22 the individual members of the RHD did it. They were

23 aware of what the RHD was likely to be used for.

24 Telephone evidence of the pattern of contact between

25 the suspects and telephones being switched off at

 

 

27

 

1 relevant periods is obviously the kind of thing that is

2 important.

3 The Panel has heard some evidence about a perception

4 that there was a lack of sophistication in the Mid

5 Ulster LVF, and Mr Provoost was question about this.

6 And I give a reference, where it was suggested that the

7 LVF may have been more into less sophisticated weaponry.

8 Well, that is a point that might have been very good had

9 the person named as the bomb maker not been there

10 because it was he, we suggest, who brought

11 sophistication to this conspiracy as Mr Provoost

12 identified. And I give two references there. And it is

13 only looking at all the intelligence about him and the

14 information which was triangulated and corroborated as

15 it came in that one sees that a proper assessment of the

16 SMT's position -- as M540 said, the more intelligence

17 they got -- and they got more -- confirmed that they

18 were on the right lines.

19 And it is telling, I respectfully suggest, that the

20 AT failed totally to recognise the clear interaction

21 between the early intelligence and other intelligence,

22 which supports that. One needs to look at the whole

23 picture.

24 Certain individuals were focused upon. You have my

25 comments on behalf of the SMT about that. It would have

 

 

28

 

1 been a dereliction of duty to have done anything less.

2 D484 identified the bomb maker. The intelligence was

3 substantially corroborated from a number of different

4 sources. If D484 is substantially corroborated, then

5 arguably it may be that the quality of intelligence of

6 D483 that others were actively involved may be enhanced.

7 I say "is", I think -- can I query and change that to

8 "maybe", I think is a more proper submission.

9 In a criminal conspiracy, I say at paragraph 41,

10 there will often be far more evidence against one

11 conspirator than other, and when that happens it is

12 often the contact between conspirators that is most

13 telling. That seems a slightly anodyne submission, but

14 it is actually an important one in the context of crime

15 and proving cases.

16 Everyone with experience of crime will know that

17 often in a multi-handed case, particularly

18 a conspiracy -- and after all, a security-related

19 terrorist murder like this is always going to be

20 a conspiracy. We're not talking about a murder which is

21 going to be committed by individuals, it will be

22 a conspiracy. And the SMT were keenly aware that the

23 conspiracy may have been very wide indeed. That's why

24 one can't eliminate suspects with the alacrity that one

25 would like to be able to do. But in a criminal

 

 

29

 

1 conspiracy, it may often be the position that one

2 defendant has a great deal more evidence against him

3 than others and it is the contact between him and the

4 other defendants that makes the nexus that drives the

5 case forward past the standard of proof.

6 And in this particular case one saw this happening,

7 I say in real time here, when Mr Phillips was suggesting

8 to M540, well, all your comment and analysis falls away

9 if you are wrong about the bomb maker, which is a good

10 point. But our case is that no sensible analysis of the

11 intelligence could conclude that the case against the

12 bomb maker falls away. And in those circumstances, we

13 suggest that Mr Ayling is wrong to regard the focus as

14 being based on the one piece of intelligence. We

15 suggest he overreaches himself in suggesting it is

16 unlikely that the maker of the Nelson UCBT made the bomb

17 at all. That would be the kind of -- excluding,

18 eliminating the bomb maker on that basis really would be

19 dangerous indeed bearing in mind all the other

20 information.

21 A very short paragraph on the significance of

22 intelligence that the Panel conclude the MIT did not

23 see. I word that carefully because that is a matter for

24 you to determine. You have heard evidence that the MIT

25 did not receive all the intelligence it could have

 

 

30

 

1 received. None of it casts any doubt on the early

2 validated intelligence. In truth, it provides powerful

3 corroboration of the intelligence they already had, and

4 Mr Provoost told you as much.

5 Can I deal therefore, please, with other suspects?

6 And the evidence that the Panel has heard shows that

7 where there was the slightest of intelligence or

8 evidence against any person of involvement in the

9 murder, that was investigated as far as was possible

10 regardless of whether they were part of the main

11 hypothesis or not. There was no confusion as to who the

12 main suspects were or that there were other potential

13 suspects. This is the large conspiracy point.

14 The systems were in place to enable a clear focus to

15 be kept and it is in the nature of terrorist murders --

16 and I repeat a point I made earlier, I apologise -- that

17 many suspects can never be eliminated. The SMT point to

18 the total absence of credible validated intelligence to

19 implicate others. That isn't in itself an answer to

20 these particular matters, but it is a telling point, you

21 may feel.

22 The questions we pose there respectfully is who have

23 they omitted to vet? It remains unanswered in reality.

24 The SMT had and have a genuine passion to bring the

25 persons that have committed the murder to justice.

 

 

31

 

1 There is a real danger that sort of vague unspecified

2 decision because people remain unconvicted obscures the

3 reality. Analogies are often unhelpful, but sadly

4 no one has ever been prosecuted for the frightful murder

5 of Stephen Lawrence because there was insufficient

6 evidence to make a prima facie case against the main

7 suspects. In that particular case, if I may say so,

8 applying myself to paragraph 6.5 of our overall

9 submissions, the golden hours in that investigation were

10 not well used, which is why the Lawrence Inquiry

11 disagreed, it seems, quite firmly with the conclusions

12 of Kent in relation to that particular matter.

13 In the Lawrence inquiry, is it really suggested that

14 a new investigation should start on the basis that the

15 vicious persons who murdered that unfortunate boy should

16 be eliminated from the inquiry. The evidence has been

17 to the effect that each and every individual in respect

18 of whom there was the slightest credible intelligence or

19 evidence of involvement was investigated as far as

20 possible.

21 Any such person would become a suspect. There were

22 many potential suspects and the MIT were well aware that

23 a number of others were involved. Many of these

24 individuals were never eliminated for reasons dealt with

25 in evidence and accepted by Mr Ayling. Suspects were

 

 

32

 

1 not confined to the Mid Ulster LVF. Each and every name

2 that came to the attention of the MIT was subject to the

3 fullest investigation to see if there was any evidence

4 that they were also involved. The core of the

5 intelligence strategy -- forgive me, the investigative

6 strategy of the SMT was a determination that all and any

7 intelligence or information in relation to anyone was

8 rigorously researched and analysed regardless of whether

9 they were within the core group.

10 And I have lifted a phrase from M540 because it is

11 perhaps an illustration of what one can imagine goes on

12 in a case like this: interaction and discussion amongst

13 senior officers in the senior team about where are we

14 going and who have we got. There are many examples on

15 the HOLMES account of the detailed investigative work

16 undertaken by the MIT in respect of other individuals

17 who, during the life of the investigation, became of

18 interest. And the evidence shows a keen awareness of

19 that particular matter. I give references there to the

20 evidence that you have in relation to that.

21 Mr Port denied that the SMT had a fixed view and the

22 evidence will support him on that, I suggest. However,

23 at the end of the day, there was and continues to be

24 a compelling case against one group, but that did not

25 involve excluding others. I emphasise that. That was

 

 

33

 

1 never done. While the SMT were of the opinion about

2 that, the evidence of their approach to looking outside

3 the central hypothesis demonstrates an open mind rather

4 than a closed one.

5 Operation George. In our open submissions we go

6 into some detail on the question of resources and can I,

7 sir, with your leave, apply myself to those submissions

8 which you have at RNI-923-070. Forgive me, no need to

9 put that up. Under "Issue 6.6", paragraphs 225 to 253.

10 And in those circumstances, mindful that I know those

11 will have been carefully seen, I will take this matter

12 comparatively shortly but there are one or two

13 fundamental matters that must be urged.

14 Firstly -- and, again, I repeat a point but can

15 I not apologise for it because it is so important -- it

16 is fundamental to Operation George to appreciate that

17 the SMT were using their resources to seek to develop

18 the early intelligence by covert surveillance.

19 Secondly, and again vitally, Operation George was a line

20 of enquiry in the investigation into the murder of

21 Rosemary Nelson. That is absolutely vital. The

22 conventional murder enquiry continued throughout, see

23 Mr Port's evidence, and could you, please, put up policy

24 decision 153, RNI-616-809, please (displayed)? I'm very

25 grateful to you, thank you.

 

 

34

 

1 You will remember me asking questions in relation to

2 this. This is a very important record, I submit, and it

3 is important because of the date, 11 June 2001. Mr Port

4 therein makes an important contemporaneous record as

5 OIOC, and because it was made at that time -- I don't

6 think it could be suggested it is anything other than

7 a clear and candid contemporaneous record -- it clearly

8 has the capacity and does demonstrate the officer in

9 overall charge's priorities.

10 First and foremost, it was to find the murderers of

11 Rosemary Nelson. There would be further opportunities

12 that arose after the arrest. On 11 June 2001, no one

13 knew whether those opportunities would avail or not.

14 That is what I mean by real time. One simply doesn't

15 know and, therefore, that is an important record, we

16 suggest.

17 Operation George was a perfectly proper, indeed

18 innovative, use of the available resources. In fact,

19 had the SMT not sought to fully develop the early

20 intelligence by the kind of innovation we see here, it

21 is inevitable that they could properly be censured for

22 it. After all, provisions were in place, the budget was

23 there, et cetera, everyone knew that there was a real

24 desire to find the murderers of Mrs Nelson.

25 And then paragraph 55 and 56 again are, I stress,

 

 

35

 

1 vitally important points. The covert surveillance in

2 Operation George involved suspects who removed

3 themselves from Northern Ireland. This was

4 opportunistic. It is acknowledged in all the evidence

5 that this type of operation is impossible in

6 Northern Ireland. See the evidence, for example, from

7 Mr Provoost. But there has been other evidence.

8 Were any others provided similar opportunities, they

9 would have been seized. That is Mr Provoost's evidence.

10 And there were instances of other targets moving out of

11 the jurisdiction and being targeted. That, again, is

12 a very important matter.

13 If you accept -- and in my submission the Panel

14 should -- that the kind of innovative operation that

15 this was was going to be impossible in Northern Ireland,

16 it really depended on who was going to leave and give

17 you the opportunities. The covert operation, the

18 undercover operation, produced no admissions to the

19 murder, but much significant intelligence was gained.

20 No suspect said anything that would provide a proper

21 basis for eliminating him, and strategically this

22 justified the continuance of what was a major line of

23 enquiry into the murder, a fact seemingly conceded by

24 Mr Ayling.

25 Where suspects did implicate themselves in serious

 

 

36

 

1 crime, including murder, this had to be dealt with, did

2 it not, properly? Those crimes demanded proper

3 investigation. I do stress that. The families of

4 Mrs O'Neill and poor Mr Lamph and others have a right to

5 expect a proper, fearless investigation, and proper

6 investigators in the best position to do it and those

7 investigators were the members of the MIT.

8 Aside from anything else, it would have been

9 impossible and impracticable, as Mr Ayling implies in

10 the AT report, as we suggest, to section off Operation

11 George to another investigation team. As Mr Provoost

12 responded tellingly, how was collusion to be factored

13 into that. It would have been impossible.

14 Operation George is a good example of an innovative

15 use of resources. It didn't divert any attention or

16 energy away from the main investigation because of the

17 very tight control described in evidence. We deal in

18 detail with the graph point and you have, sir, our

19 written submissions on that. I don't intend to go

20 through this in detail. I'm sure our position is clear.

21 It is telling in this case that there was a tight,

22 almost iron control, described in evidence by all

23 members of the SMT. Many of the RUC officers in the

24 investigation remained completely unaware of it

25 throughout its entire lifespan.

 

 

37

 

1 A vital part of this kind of operation is that

2 investigators are looking for the smallest bits of

3 information that inculpates or exculpates suspects, as

4 Mr Port said. That's what we are looking for. The

5 product gained in Operation George is an important part

6 of the overall intelligence picture and it is the MIT's

7 submission that the AT analysis of the covert product

8 is, we say, superficial, and seeks to propound one

9 single hypothesis -- and this is a hypothesis because it

10 is a supposition -- namely that some of the main

11 suspects were not involved. Proper analysis of all the

12 material does not allow that conclusion. That would not

13 be a proper conclusion for an investigator to take.

14 True, there was a continual denial of the murder by

15 the targets with the attribution of the murder to the

16 British Government. It was an enormously significant

17 murder, and bearing in mind its timing, it is hardly

18 surprising that anyone and everyone should be anxious to

19 deny their involvement, hence the thought that the

20 adoption of a mantra is not surprising. The SMT in fact

21 considered whether those comments were themselves

22 merited of enquiry, and gave the kind of consideration

23 to, sir, that you would expect, as Mr Provoost mentioned

24 in his evidence.

25 Of course, admissions of involvement in the murder

 

 

38

 

1 could have been determinative. However, the absence of

2 these did not make the exercise a waste of time. That

3 view would be naive. In any conspiracy, contact between

4 the conspirators will always be of significance and

5 overall the product provided significant intelligence on

6 a number of different matters. It particularly provided

7 it if one looked with other intelligence across the

8 board and looked at the whole picture. The distinction

9 between the term "significant intelligence" and "actual

10 evidence" is sometimes a tenuous one and perhaps fell

11 into the mistake of perhaps causing some confusion

12 between the two.

13 Here, the SMT were looking at intelligence but in

14 fact some of the material in Operation George could have

15 been relevant and admissible in court proceedings on any

16 trial in conspiracy had there been other evidence. It

17 could have been very telling.

18 The lawfully audacious operation -- that was

19 Mr Phillips using an expression, I think, from another

20 source -- I give a reference for that -- involved

21 innovation and courage. And in the judgment of the SMT,

22 at the time it represented the best opportunity they had

23 to develop the intelligence that they had been given and

24 which had been validated. The operation produced

25 significant intelligence and the continued deployment of

 

 

39

 

1 the resources was consistent with its main purpose as

2 a line of enquiry into the investigation of the murder

3 of Mrs Nelson.

4 Sir, with your leave, I'll hand over --

5 THE CHAIRMAN: Ask your junior to carry on. I think it

6 would be a very good idea if we have the break now and

7 then Mr Griffin has a clear start. We will break off

8 now until quarter to 12. Thank you very much.

9 (11.29 am)

10 (Short break)

11 (11.47 am)

12 MR EGAN: Before Mr Griffin takes over, can I give two

13 references -- I'm very grateful to Mr Phillips -- that

14 I feel may help you. The Patrick Finucane Centre report

15 is scanned on to the report. Can I give a reference to

16 for all the parties: It is RNI-832-001 to RNI-832-005.

17 Mr Phillips quite rightly reminds me that I refer to

18 D484 in paragraph 39 of my speaking note at RNI-923-110.

19 There ought to be reference because that is scanned on

20 to the system. It is at RNI-909-005.

21 THE CHAIRMAN: Thank you very much. Yes, Mr Griffin?

22 Closing submissions by MR GRIFFIN

23 MR GRIFFIN: Sir, as Mr Egan said, I will deal with the

24 issue of victimology as far as due diligence is

25 concerned and then move on to deal with the issues that

 

 

40

 

1 are raised in Mr Myers' letter relating to the

2 obstruction issue.

3 May I started with victimology, and a question is

4 posed in the letter and what I intend to do is to answer

5 that question and obviously any further questions you

6 may have.

7 The letter of 26 April poses this question: the

8 Panel would welcome assistance in relation to the

9 question of whether earlier and/or fuller access to

10 Rosemary Nelson's personal possessions, including her

11 diary or diaries and handbag, would have allowed the MIT

12 to develop more comprehensive victim details to the

13 benefit of the investigation as a whole.

14 May I start just by answering the question and then

15 perhaps look at a little bit of evidence to explain that

16 answer. The question is in two parts. The first part

17 is whether looking at the personal possessions would

18 have allowed the MIT to develop more comprehensive

19 victim details. Well, the answer to that must be it may

20 have done. We don't know what was in those documents,

21 but it may have done.

22 The question perhaps that I really need to address

23 now is whether that would have been to the benefit of

24 the investigation as a whole. And the answer is that it

25 was the considered judgment of the Senior Management

 

 

41

 

1 Team at the time that it would not have been to the

2 benefit of the investigation as a whole.

3 THE CHAIRMAN: It may be with hindsight, but we do know from

4 the evidence of Dara O'Hagan that telephone calls or

5 telephone threads were allegedly made within a week or

6 two before the murder because Rosemary Nelson mentioned

7 that to Dara O'Hagan, and that is an example of

8 something, because of the immediacy of those telephone

9 calls, where it might have helped.

10 MR GRIFFIN: May I refer then immediately to the evidence of

11 Mr Provoost because that was a question you put to him

12 when he was being asked questions by Mr Savill about

13 victimology. I understand it is not possible to put

14 transcripts up on the screen, but may I -- I'll speak

15 slowly and I won't quote at length, but may I just

16 remind you of the question you put and the way

17 Mr Provoost responded to it?

18 THE CHAIRMAN: Yes.

19 MR GRIFFIN: This, for reference, is Day 108, page 114,

20 line 19 to page 118, line 2. And just a little bit of

21 background, Mr Provoost is talking about the type of

22 enquiries it is proposed to undertake in relation to

23 a victim. He says:

24 "An SIO, when he is coming to the victim line of

25 enquiry, must ask himself or herself a question, and

 

 

42

 

1 that is, 'What am I intending to do?' or 'What am

2 I thinking about doing? Will it advance the murder

3 investigation?' And that sort of assessment has to be

4 made. If the answer to that self-asked question is no,

5 or is, 'It is very, very dubious', then I think the SIO

6 is perfectly entitled to say, 'I'm not going to go off

7 down that route'."

8 You then asked the question, sir:

9 "We have heard evidence that Mr Nelson told

10 a friend, I think that very weekend before she was

11 killed, that in the previous fortnight she had been

12 receiving threats. Might she not have recorded those in

13 her diary?"

14 Mr Provoost responded:

15 "She might have done, sir. We did an awful lot of

16 work again around her contacts and her associates, her

17 employees, ex-employees. So, I think, you know, in many

18 respects we had those angles covered."

19 He then goes on to describe the two areas of

20 victim-related enquiries that he suggests are relevant

21 in relation to Mrs Nelson's movement and in relation to

22 the possibility of threats. He then goes on and says:

23 "I agree, sir, we didn't seize the diary. There may

24 have been something in the diary, we don't know. But

25 that's a judgment call you make at the time."

 

 

43

 

1 And putting the benefit of hindsight to one side,

2 what you have is a very particular set of circumstances,

3 and perhaps I should deal with those briefly, in

4 relation to sensitivities that are involved and

5 particular circumstances that are involved and an SIO

6 and an OIOC making a judgment call in the context of

7 those sets of circumstances.

8 Maybe what I should do then is simply go straight on

9 and deal with those circumstances to explain the context

10 in which that kind of decision is made.

11 There is stark conflict between what Mr Ayling is

12 suggesting should have happened or should happen as far

13 as victim-related enquiries are concerned, and what the

14 members of the SMT suggest should happen. Those are

15 covered in some detail in our written submissions. It

16 really comes down to this: Mr Ayling is suggesting

17 a much more detailed line of enquiry should have been

18 undertaken, and the members of the SMT are saying,

19 "Well, hold off a second. What you need to do is to

20 conduct focused and proportionate enquiries relating to

21 the particular circumstances of the case that you are

22 dealing with at a time."

23 And the circumstances can probably be summarised in

24 this way: first of all, the nature of the case that you

25 are dealing with. This was a terrorist murder and you

 

 

44

 

1 may recall the evidence of Sam Kinkaid and Mr Provoost,

2 who were describing a range of cases that an SIO will

3 come across, from a body in a field where you don't know

4 the identity of that person, to a situation where you

5 will have a terrorist detonating a bomb underneath

6 a military Land Rover. And you will do a huge amount of

7 victim-related enquiries at one end of the spectrum and

8 rather fewer at the other end of the spectrum, and we

9 are now dealing with something that falls in between the

10 two.

11 The sensitivities involved are, again, matters that

12 we do deal with in our written submissions, but what the

13 SIO and the SMT were dealing with was a family that was

14 understandably highly concerned about what had happened

15 and the manner in which investigations were being

16 undertaken. And I say understandably for a good reason.

17 It was more than just the family being concerned. The

18 community and NGOs were also very concerned and it was

19 very important to this investigation that lines of

20 communication remained open between the investigators,

21 the family and the community at large. That was the way

22 in which they maximised the chances of catching the

23 murderers of Mrs Nelson.

24 Mr Kinkaid made a point that what you don't want to

25 do in a sensitive case such as this is to twice over

 

 

45

 

1 victimise the victim by conducting very intrusive and

2 personal investigations where they cannot be justified.

3 And what both Mr Kinkaid and Mr Port have said is that

4 it was their judgment that those types of enquiries were

5 not necessary in the particular circumstances of the

6 case. But they both made it clear that had they thought

7 it would be relevant to conduct that type of personal

8 investigation of the personal possessions, they would

9 have done it. It was their judgment, taken at the time,

10 and in those circumstances, that they didn't need to

11 take those steps.

12 SIR ANTHONY BURDEN: I understand that, Mr Griffin, in

13 relation to a more conventional type of murder where you

14 will be looking at other motives, but as the Chairman

15 has expressed, without looking at the contents it is

16 very difficult to make that judgment as to whether there

17 may be material or evidence of mobile phone use,

18 incoming calls, that would actually identify some link

19 with the terrorist concerned, those responsible for

20 Rosemary Nelson's death.

21 MR GRIFFIN: I think the way that was put by Mr Ayling is

22 you do not know what you do not know until you start

23 looking at these things.

24 What you have is a delicate balancing exercise that

25 an SIO has to undertake when deciding about these

 

 

46

 

1 personal types of investigations. And I should stress,

2 this wasn't something that just went by the way. There

3 was a positive decision not to make this type of

4 investigation. And I'm not sure how much further to

5 take my submission other than to say I agree that you do

6 not know what you don't know, and it is possible, as

7 Mr Provoost accepted to the Chairman's question, that

8 there might have been something in her diary about

9 threats. But the decision taken in the circumstances of

10 this case was that the appropriate way forward was not

11 to conduct that type of intrusive personal

12 investigation.

13 Sir, those are my submissions in relation to the

14 your victimology point. Unless there are further

15 questions in that area, what I would propose to do is to

16 move on to addressing the obstruction issue.

17 Issues 20 and 21 of the 2005 List of Issues are

18 whether the RUC, NIO, Army or other State agency

19 obstructed the investigation into her death and whether

20 any such obstruction was intentional or negligent. Sir,

21 the shorthand that has been used for this issue is the

22 obstruction issue and, sir, that's what I will do.

23 There are three issues of interest to the Panel that

24 appear in your letter from Stephen Myers, and what I

25 will do is read those out first and then I'll come on to

 

 

47

 

1 address each of them in turn, if I may. The first of

2 the issues that I intend to address is was the MIT

3 oversensitive to Special Branch concerns in its

4 investigation of Special Branch activities. The second

5 is did Colin Port wait too long before involving

6 Sir Ronnie Flanagan in the issue of his request for

7 access to CHIS identities, and did Sir Ronnie allow the

8 issue to remain unresolved for too long. And the final

9 issue is was there non-disclosure of relevant and

10 significant intelligence to the MIT on the part of (a)

11 the RUC, or (b) the Security Service. If so, what were

12 the reasons for that and did any such non-disclosure

13 have an adverse impact on the progress or effectiveness

14 of the investigation.

15 Sir, if I turn to deal with the first question

16 first, whether the MIT were oversensitive to

17 Special Branch concerns. And what I would do in

18 response to that is deal briefly with a certain of what

19 have been described as the rubbing points during this

20 Inquiry between members of the Senior Management Team

21 and members of Special Branch, as a way of answering

22 that question. But the short answer is no, the MIT were

23 not oversensitive. Their responses were appropriate and

24 proportionate and, where necessary, they pressed and

25 pressed and pressed.

 

 

48

 

1 May I deal first of all with Operation Fagotto

2 because we have heard quite a bit about that, and the

3 matter that I would want to bring to your attention can

4 be dealt with fairly quickly and that is this: first of

5 all, the MIT took statements from Special Branch

6 officers. Now, that on its own may not sound like much,

7 but that in itself was unusual in the context of

8 Northern Ireland. But more importantly, perhaps, they

9 took the Special Branch cars concerned and subjected

10 them to forensic examination, and you heard evidence

11 about the difficulties and the resentment that that

12 caused amongst certain members of Special Branch.

13 I don't intend to take that point any further unless

14 I can answer any questions.

15 THE CHAIRMAN: That is in relation to Fagotto?

16 MR GRIFFIN: That's in relation to Fagotto. It is the

17 taking of statements and then subjecting the vehicles to

18 forensic analysis, causing Special Branch many, many

19 concerns which are voiced to the MIT. And Mr Port

20 described the feedback he got, that it made the

21 Special Branch officers feel that they were under

22 suspicion, and you heard evidence from B629 and B508

23 both about the very real concerns they had -- and you

24 might feel the resentment that Special Branch officers

25 were being subjected to this type of investigation.

 

 

49

 

1 The next point is really arising from the evidence

2 of B508 and relates to covert policing tactics. He,

3 B508, described how the MIT were pushing the boundaries

4 in what they wanted to do in technical operations and in

5 seeking to capture information for evidential purposes.

6 And that caused -- you heard from B508 -- all manner of

7 rubbing points and difficulties. But the situation was

8 that the MIT continued to press Special Branch

9 operatives to push the boundaries of the type of

10 operations that could be undertaken in the context of

11 Northern Ireland. And they did that, again, pushing and

12 causing resentment and difficulties, but they continued

13 in a proportionate manner.

14 THE CHAIRMAN: Am I right in thinking that they did draw

15 back, the MIT did draw back, from investigating and

16 intercepting and analysing telephone calls by

17 Special Branch officers?

18 MR GRIFFIN: Perhaps I should just deal with that one

19 head-on, and there is a difficulty in dealing with it.

20 THE CHAIRMAN: I don't want to deal with the actual detail.

21 MR GRIFFIN: Yes, the details --

22 THE CHAIRMAN: The details are familiar to me. The

23 background --

24 MR GRIFFIN: Maybe I can try a short circuit. If I take it

25 too briefly I will take a step back.

 

 

50

 

1 The situation is that there is an application or

2 request by Sam Kinkaid to local Special Branch in

3 Lurgan, and this is all bubbling on at the same time as

4 another issue we are going to be turning to and that's

5 the question of CHIS IDs. And it is probably relevant

6 to bear that in mind, but there is a request

7 in August 2000 of a type we don't need to go into.

8 Now, that's 22 August. The relevant documentation

9 has an endorsement on it that Mr Kinkaid has spoken to

10 B567 and has been told that everything relevant has been

11 disclosed by Special Branch, and Mr Kinkaid was

12 satisfied that the request did not need to be taken

13 further. So the first point and the main point is this:

14 there is a query that is satisfied, at least to

15 Mr Kinkaid's satisfaction, within a matter of three

16 days.

17 So what one unfurls after that -- what one must

18 remember is that the initial request has been satisfied.

19 There is another branch to this particular issue and

20 that is in relation to an application, again of

21 a sensitive nature, that followed on from the initial

22 one. And Mr Port's evidence is that he spoke to

23 Mr Kinkaid and decided to withdraw that particular

24 request. And, again, he did that and I can give you the

25 reference where he explains why. It is at paragraph 83

 

 

51

 

1 of RNI-817-410. I don't intend to call it up unless you

2 would like me to.

3 He did that bearing in mind, I would suggest, that

4 this initial request had been dealt with satisfactorily

5 within a matter of days. So I do accept that this is

6 a request here where records were produced and

7 destroyed, but the judgment was taken on the basis of an

8 initial request that had been satisfactorily dealt with.

9 May I then move on to the issue of CHIS identities

10 because, in my submission, this is relevant to two of

11 the issues that you have raised in Mr Myers' letter:

12 The issue of whether the MIT were oversensitive to

13 Special Branch, but also the issue of whether Mr Port

14 waited too long before involving Sir Ronnie Flanagan

15 into this matter. And what I would propose to do is to

16 take a brief chronology and then extrapolate from that

17 various points that I hope answer both of those two

18 issues.

19 We have got an initial request from Mr Provoost on

20 behalf of Mr Port, which is dated 16 August 2000.

21 I have got references for all of these matters. If

22 people want them I can give them, but I'm not going to

23 read out references at the moment.

24 That request, on the 16th, sought response within

25 two days, and that, it might be suggested, is not an

 

 

52

 

1 example of the MIT being oversensitive to the

2 Special Branch concerns.

3 There is then in August three meetings between

4 22 August and 31 August, or contacts, meetings or

5 contacts, between Mr Port and B542, the Head of

6 Special Branch, addressing this specific issue. Then on

7 22 September 2000, Mr Port, B542 and one other met in

8 Sir Ronnie Flanagan's office to discuss this and I will

9 give a reference for that because it arises in a letter

10 that Mr Port wrote on 25 October. The reference we get

11 that date from is RNI-548-551, and at that meeting

12 Mr Port again outlined the reasons for his request.

13 So the first point to notice is that Sir Ronnie has

14 been brought into the CHIS identity issue a little over

15 a month after the request had been made. So my short

16 answer is that the MIT and Colin Port did not wait too

17 long to bring Sir Ronnie Flanagan in. There was

18 a request, there were three contacts or meetings between

19 the Head of Special Branch and Colin Port and it was

20 only after that that Sir Ronnie Flanagan was brought in.

21 So you have in the intervening period high level contact

22 between the head of the investigation team and the Head

23 of Special Branch.

24 THE CHAIRMAN: But shouldn't all this have been foreseen,

25 not when Mr Port took up office, so to speak,

 

 

53

 

1 in April 1999, but within a matter of weeks of taking

2 up, that really this was likely to be a rubbing point

3 and needed really a clear protocol at that stage?

4 MR GRIFFIN: This is the wider point, is it, than just

5 a disclosure of CHIS identities, but of disclosure of

6 intelligence?

7 THE CHAIRMAN: Yes.

8 MR GRIFFIN: The danger is when one focuses on an issue like

9 this -- and I don't want to underplay it at all, indeed

10 I'm relying on it to demonstrate that the MIT weren't

11 overly sympathetic in dealing with Special Branch. But

12 the danger in concentrating on a rubbing point is that

13 you take your eye off the overall picture, which is that

14 Special Branch disclosed to the MIT more intelligence

15 than had ever really happened before in the context of

16 a criminal investigation. There was a liaison system

17 set up involving B567 and B503, and as time went on and

18 as people got to know each other, those relations got

19 better and I think everyone has described them

20 ultimately as professional relations.

21 So it is very difficult to answer your question --

22 well, one can see the force of saying right from the

23 start there must be a clear protocol, but this was

24 a situation in which, as I have said, boundaries were

25 being pushed, everyone was feeling their way. The MIT

 

 

54

 

1 were asking for the type of information and service that

2 had never been asked for before, and the situation was

3 evolving very quickly. And it is very difficult to set

4 up a protocol in that kind of situation, also before

5 relations have cooled to the extent where people know

6 each other and can deal with each other in a particular

7 way.

8 SIR ANTHONY BURDEN: Can I just return to the specific

9 around CHIS identities?

10 MR GRIFFIN: Yes.

11 SIR ANTHONY BURDEN: And paragraph 7, and we heard from

12 Mr Port his reasons for pursuing CHIS identities and

13 quite legitimate line of enquiry. But it must have

14 become apparent quite early on that the Special Branch

15 also had a quite proper responsibility and expressed

16 concerns over the safety of human intelligence sources.

17 So there was this rubbing point, generating delay and,

18 I would suggest, having heard other evidence around this

19 point, not easily resolved. Yes, there was this meeting

20 in September, but then, of course, we had another delay

21 ensuing until early 2001, until a decision was finally

22 made on this and there is the point I think that any

23 delay in investigation generates possible deterioration

24 in the quality of evidence which may be forthcoming.

25 MR GRIFFIN: Yes. I think the first matter you raise may

 

 

55

 

1 relate more generally to term of reference number 7 and

2 the second would require -- and that's what I intend to

3 do in any event -- looking a little bit further down the

4 chronology, about what is going on in that period of

5 delay, as you put it.

6 But as far as term of reference number 7 is

7 concerned, Mr Port's evidence is that he drafted. He

8 provided it to Sir Ronnie Flanagan. And in fact picking

9 up on a question Dame Valerie asked the Security Service

10 representative on Monday about the possibility that

11 legal advice was taken with the Security Service in

12 relation to that, it is my recollection that

13 Sir Ronnie Flanagan in his statement believes that in

14 fact he may have run the terms of reference past his own

15 legal adviser. I think we can provide a reference for

16 that if necessary.

17 But term of reference number 7 was itself

18 unprecedented in the context of Northern Ireland, and so

19 Mr Port knew that it would be breaking into new

20 territory bringing that type of access to intelligence

21 to Northern Ireland. So I would suggest it is a further

22 example of not an over simplicity approach to

23 Special Branch, but one of pushing for the right from

24 the off, if you like.

25 There is another issue in relation to terms of

 

 

56

 

1 reference, which is how you read term of reference

2 number 7 and I know Dame Valerie has asked a number of

3 questions about that, whether or not you should read in

4 caveats. And Sir Ronnie Flanagan's evidence is the same

5 as Colin Port's evidence, which is there are no caveats

6 there. It is clear. And what it meant was that Mr Port

7 should have been provided access to the material that he

8 requested.

9 SIR ANTHONY BURDEN: Can I say I fully concur with that.

10 The issue for me is delay.

11 MR GRIFFIN: May I move on to address that specifically?

12 DAME VALERIE STRACHAN: Sorry, before you do that, in the

13 course of your remarks, you have, as it were, combined

14 two kinds of Special Branch sensitivity. There is the

15 sensitivity in relation to possible endangerment of

16 CHISs, which is very understandable sensitivity and runs

17 all the way through the piece. There is also the

18 question of sensitivity about possibly being regarded as

19 being under suspicion themselves.

20 It seems to me those are two quite different

21 sensitivities, and the question in Mr Myers' letter was

22 more directed to sensitivity in regard to their own

23 possibility of being regarded as under suspicion.

24 Perhaps you would like to deal with that specifically.

25 MR GRIFFIN: Yes, I'm just trying to think if I have dealt

 

 

57

 

1 with that in terms of, for example, Sir Michael's

2 question about telephones and also in relation to the

3 Fagotto vehicles, if you like, where you have got

4 concerns being raised, particularly in relation to the

5 Fagotto vehicles, that Special Branch personnel are

6 being treated like criminals, and resentment from the

7 fact that these people are coming under suspicion. And

8 you also have the suggestion that Sam Kinkaid made an

9 early comment about something to the effect of those

10 people down the corridor are the ones that need to

11 worry. And there is evidence -- and you see it also in

12 the Security Service documentation -- that that is

13 a real cause of concern for Special Branch. But I'm not

14 sure how much further I can take that, other than to say

15 that that was not a matter that weighed on the minds of

16 the Senior Management Team in terms of holding back

17 requests. They continued and pressed where

18 appropriated.

19 But dealing with the other area of sensitivity,

20 source protection, Mr Port's evidence is he quite

21 understood the very real concerns that would be raised

22 by this type of request because people's lives were at

23 stake.

24 But I agree, there are two different types of

25 sensitivity. One, the source protection, was certainly

 

 

58

 

1 considered and taken into account by the Senior

2 Management Team. The other did not stop them from

3 conducting their enquiries as they saw appropriate.

4 THE CHAIRMAN: You mentioned paragraph 7. Would it be

5 unfair to Mr Port to say that if he thought that

6 paragraph 7 could be construed giving him in a sense

7 a free-for-all, it was naive on his part?

8 MR GRIFFIN: I have to say, sir, with the greatest of

9 respect, that requires a huge dollop of hindsight. What

10 he did before he came over and established himself in

11 Lurgan, was to draft these terms of reference so as, at

12 that time, to ensure himself as far as he could the

13 possibility of conducting a successful and meaningful

14 investigation.

15 I would simply say it would be very unfair to

16 consider in detail what has happened since and go back

17 to the date on which he was drafting those terms of

18 reference and hold that against him. What they

19 represent, I would suggest, is someone who is determined

20 to have access to as much information as possible for

21 a particular reason. And this is a matter I did want to

22 stress, and I'll stress it now: we should not lose sight

23 of what the SMT were doing and that was looking to find

24 who had murdered Mrs Nelson and who was involved

25 generally in the murder. And that's what Mr Port is

 

 

59

 

1 thinking of when he drafted those terms much reference

2 and that is what motivated him throughout this.

3 Mr Port left this investigation some time ago, but

4 you will have heard evidence that he didn't cut loose

5 and leave; he has remained interested and in contact

6 with people, both families and his former colleagues.

7 So this was a motivated and dedicated team, and I won't

8 return to that point but it was a point that I wanted to

9 raise at some stage anyway.

10 But may I go back to Sir Anthony's concern and that

11 is the question of delay in the second half of the CHIS

12 identification issue, if I could put it in that way.

13 We had got to the stage where Sir Ronnie Flanagan

14 had been brought in and that was on 22 November, so

15 a little over a month after the initial request, maybe

16 just under a month and a week.

17 There are then -- again derived from a letter that

18 we will come and, if necessary, look at -- a number of

19 contacts between Mr Port and Sir Ronnie and we get

20 a further letter on 25 October 2000 from Colin Port to

21 Sir Ronnie Flanagan specifically raising this issue.

22 May I give the reference for it? I won't take you to

23 it, but the reference is RNI-548-550. You may recall

24 that is the letter that in fact deals both with the CHIS

25 ID issue and concerns over telephones.

 

 

60

 

1 And, again, on 2 January 2001 there is a letter from

2 Colin Port to Sir Ronnie Flanagan saying it is now on

3 a formal basis that I have to write to request this

4 material. The evidence is that Sir Ronnie had agreed in

5 principle to releasing the material on 11 December, so

6 there is a delay between that initial agreement and

7 Mr Port actually going to see it which happened some

8 time after 25 January.

9 Perhaps what I should do is just take you to one

10 document just to give a flavour of all of this. May we

11 have up to on the screen, RNI-548-544 (displayed), and

12 this is a document of Mr Port's and in it he notes the

13 meeting on 4 January that he had with Sir Ronnie in his

14 office. And can we highlight the first big paragraph

15 under the five numbers there, please? And it is really

16 in the second line. We can see what they are talking

17 about is both telephones and the risk to CHISs, and if

18 we drop down to the large redacted portion, we can see:

19 "I then said what about my request for the

20 information."

21 And this is dealing with the CHIS IDs:

22 "RF said he had not seen [redacted]. I said that he

23 had told me on 11 December that I could have the

24 information. He then said I could but he wanted to see

25 [redacted]. I said when could I see the documents. He

 

 

61

 

1 said next week. When? He said, when you get back on

2 Tuesday night. I said I will see them on Wednesday. He

3 said right. I said I will make an appointment with ..."

4 That's redacted:

5 "... he said let's meet on Tuesday night and discuss

6 it. I said we needed to meet to view the documents. He

7 was getting angry. He said he did not know if [B542]

8 had all the documents or not. I said who has the

9 documents. He said he did not know but he would have

10 them by next Wednesday."

11 That was a portion of text that Mr Phillips put to

12 Mr Port when Mr Port was giving evidence, and Mr Port's

13 response was:

14 "That's not an interaction that I'm particularly

15 proud of."

16 And Mr Phillips asked:

17 "You were pressing him?

18 "Answer: I was.

19 "Question: He didn't like it?

20 "Answer: No."

21 But that, in my submission, gives you an indication

22 of the determination of Mr Port to pursue this issue

23 particularly bearing in mind the delay that Sir Anthony

24 was talking about.

25 Just to deal with what you suggest all of that shows

 

 

62

 

1 as far as the CHIS ID is concerned, first of all it

2 shows a proportionate, I would suggest, response to

3 Special Branch but not an oversensitive one. And

4 secondly, it shows that Mr Port brought in

5 Sir Ronnie Flanagan within a reasonable time and only

6 after he had been in contact with the Head of

7 Special Branch on a number of occasions to try and

8 expedite this matter.

9 May I then move on to the last of the issues in the

10 letter that I want to address, and that, to remind you,

11 is was there non-disclosure of relevant and significant

12 intelligence to the MIT on the part of the RUC or the

13 Security Service. If so, what were the reasons for that

14 and did any such non-disclosure have an adverse impact

15 on the progress or effectiveness of the information?

16 The response, in short, is that there was

17 non-disclosure, the SMT say, of 13 items of relevant and

18 significant intelligence on the part of the RUC. There

19 is no similar suggestion, as far as the Security Service

20 are concerned. And I'll come on to deal with the

21 non-disclosure issue in a second, but part of your

22 question requires an assessment of the impact of

23 non-disclosure on the investigation. Mr Egan has made

24 a reference to that and I don't intend to address that

25 in an open session. To address that requires looking at

 

 

63

 

1 unredacted intelligence, it requires having sight of

2 what was said in closed sessions and so on and so forth.

3 For those reasons I'm going to leave that alone.

4 THE CHAIRMAN: In summary, one could say to an extent it is

5 speculative anyway, the actual impact. But there is

6 a loss in the sense of the golden hour and the loss of

7 the possibilities of exploitation of intelligence in

8 order to get evidence. That in general terms is the

9 sort of losses.

10 MR GRIFFIN: Yes, I think in the PSNI submissions there is

11 a suggestion that this is simply speculative.

12 THE CHAIRMAN: It isn't --

13 MR GRIFFIN: I agree with everything that you said. I don't

14 want to go too far, but there is an intervening stage

15 between saying it is speculative to suggest this piece

16 of intelligence isn't going to take you there. The

17 first thing you do is you make relevant enquiries and

18 you conduct relevant investigations, then you decide.

19 The whole issue of the 13 items of relevant and

20 significant intelligence that the SMT say were not

21 disclosed is dealt with in the statement of M540, which

22 I don't intend to pull up but may I just give the

23 reference? It is RNI-842-270, and in his schedule which

24 starts at RNI-621-047.

25 Sir, what I was proposing to do -- but it is subject

 

 

64

 

1 to what would really assist -- is just to take two

2 examples from that schedule, and not because -- they are

3 two difficult examples because in both cases they are

4 pieces of intelligence which the PSNI suggest was

5 disclosed but which the SMT witnesses have suggested

6 were particularly relevant. So I thought that in taking

7 two pieces like that, I could perhaps deal in short form

8 with a number of the issues that had been raised.

9 Can we call up RNI-621-048, please (displayed)? I

10 don't know if we have the technology to turn that round.

11 Fantastic. Item number 4 is a piece of intelligence, or

12 a reference to a piece of intelligence that the Panel

13 have heard a lot of evidence about and that the SMT

14 suggest is particularly significant. And as one can

15 see, it relates to a call by the Red Hand Defenders that

16 was made from a public phone box.

17 I'm not going to take the significance of that

18 further now, but what I would like to deal with is the

19 suggestion that that might have been disclosed, and

20 another matter that has been raised by the PSNI team in

21 their submissions, which is that a recent statement from

22 B503 and a file box containing documents that he

23 produces with that recent statement all tend to suggest

24 that the documentation, the intelligence, was disclosed

25 to the MIT. And taking this particular example, may

 

 

65

 

1 I preface this by saying what will need to happen is

2 that a very careful consideration of the documents in

3 that box will need to take place. But what I suggest

4 when one looks at the documents one sees is largely the

5 dissemination process from the Special Branch liaison

6 officers to the MIT working well.

7 One sees at various stages -- and I'm now talking

8 about the early stages of the investigation -- one sees

9 in the box, for example, copies of actions from

10 Sam Kinkaid or the Senior Management Team issued to

11 Special Branch, which are returned to the Senior

12 Management Team with the manuscript endorsement of B629

13 on them. So the Head of South Region Special Branch is

14 responding in the very early stages himself.

15 What then develops is a system whereby intelligence

16 is disseminated by way of Special Branch briefing form,

17 and what one sees in the box is copies of SIRs or

18 I think they are DVFs actually in the box, but the

19 Special Branch computer printout. Often one sees the

20 printout, one sees a copy of it which has been

21 highlighted and then one sees the Special Branch

22 briefing form. And what has happened is that the

23 highlighted text from the original document has been

24 copied into the briefing form in manuscript so that

25 sensitive matters are not copied over, and you can see

 

 

66

 

1 that system working very well.

2 That is, in the first stages, B567 who is completing

3 the forms and the Panel will recall the evidence that

4 B567 was continuing, as he put it, with his day job and

5 the need was felt to bring in B503 to assist, and B503

6 comes on to the scene and himself starts to enter into

7 the Special Branch briefing forms the manuscript details

8 that went off to the MIT.

9 There is a period after B567 is dealing with these

10 matters and before B503 comes on to the scene where one

11 sees a number of pieces of intelligence in the box but

12 they are not associated with any briefing sheet, and one

13 doesn't see marked-up versions of those documents that

14 you might expect in preparing for being put into

15 a briefing sheet. And one of these pieces of

16 intelligence is this one here, item 4 on the list. And

17 what that might suggest -- I'm not going to put it

18 higher than that -- is that this is a piece of

19 intelligence that has somehow slipped through the net

20 between B567 dealing with these matters and B503 coming

21 on to the scene. It fits in chronologically well with

22 that.

23 As I say, I don't want to put it too high. That's

24 one interpretation of what one sees from the box of

25 documents.

 

 

67

 

1 Can I then move on to the last item on this list and

2 it is RNI-621-052 (displayed). And could that again be

3 turned? Item 17, could that be highlighted, please?

4 This is the piece of intelligence about developing

5 a UCBT, one can see in the middle of the redacted text

6 there. I'm not going to take the subject matter any

7 further, but this is a piece of intelligence that the

8 PSNI team say if it wasn't disseminated to the MIT,

9 would have been available for them to see because it

10 relates to an individual about whom Special Branch have

11 provided a profile to the MIT. And the PSNI put in

12 their submission or draw attention to the fact that

13 profiles had on them notices and those notices said --

14 I'll read:

15 "This document contains intelligence in relation to

16 [the particular person], which is held by Special Branch

17 and which has been assessed to be relevant to this

18 enquiry."

19 I'm going to attach significance to that, but the

20 PSNI attach significance to the portion of the notice

21 that I'm now going to refer to:

22 "RUC Special Branch also hold other material on file

23 in relation to [this person], which the senior

24 investigating officer is free to access or examine for

25 relevancy or any other purpose connected to this

 

 

68

 

1 investigation."

2 And the PSNI's submission is that that part of the

3 notice means:

4 "All intelligence in relation to those individuals

5 was clearly available for examination."

6 So I need to deal with that because that's a very

7 wide-reaching submission.

8 The first point is that the SMT took that notice at

9 face value in that they assumed that the Special Branch

10 liaison officers had indeed passed to them the

11 information assessed to be relevant. And the reason

12 they were entitled to do that was because Special Branch

13 weren't operating blindly; they were educated by

14 Mr Kinkaid and by the Senior Management Team about what

15 they, the SMT, the MIT, were after. They were

16 specifically spoken to, they attended briefings and

17 meetings and so on and so forth, and in certain

18 instances, as we have seen, they were armed with written

19 requests. And a busy SIO simply does not have time to

20 go off with every single one of those profiles to root

21 around a Special Branch file.

22 So the first point in response is that the SMT

23 relied on the notice that relevant material had been

24 disclosed.

25 The second point is that the notice itself does not

 

 

69

 

1 explain the non-dissemination of what we would suggest

2 is clearly relevant intelligence.

3 The third point is this, and that is that the idea

4 that Special Branch would open up their files that might

5 contain sensitive national security information and

6 allow a senior investigating officer who, for the first

7 part of this period, wasn't developed vetted to have

8 access to any of the documentation has to be viewed in

9 the light of the evidence that you have heard from

10 people such as B629: that he would read, for example,

11 a caveat into Mr Port's terms of reference that the

12 material that would be disclosed had to be relevant and

13 necessary.

14 So one has to consider the reality of the suggestion

15 that an SIO was going to be given free rein to very

16 sensitive Special Branch information.

17 And finally, and just reminding myself of what the

18 PSNI submission is, this meant that all intelligence in

19 relation to those individuals was clearly available for

20 examination. Well, we don't know what was in the

21 relevant file. You have heard a lot of evidence, for

22 example, about a file in relation to Mrs Nelson, and it

23 is a far from simple situation. There are different

24 types of files, they are held in different locations,

25 they may be in paper form, they may be electronic and so

 

 

70

 

1 on and so forth. So I would in short urge caution when

2 approaching that submission from the PSNI team.

3 May I then move on to deal with two other matters

4 which I intend to deal with quickly, but they all relate

5 to the question of whether relevant and significant

6 intelligence wasn't disclosed. That is first of all the

7 question of the file on Mrs Nelson and then

8 Operation Shubr. I think I have actually now just dealt

9 with the question of the file on Mrs Nelson. It is

10 really a matter for you to determine what existed and in

11 what form. But what is clear is that it wasn't

12 disseminated to the MIT.

13 In relation to Operation Shubr, there is a simple

14 conflict on the evidence. The SMT are adamant that they

15 were not told about this investigation. Even if you put

16 to one side the question of the name, they were not told

17 about this surveillance operation. And the suggestion

18 has been made, for example, that they would have known

19 that prominent paramilitaries would be the subject of

20 intermittent surveillance. Well, that's right, they

21 would have known that, but they did not know and were

22 not told that the very people they were investigating

23 had been and were continuing to be under surveillance.

24 And sir, for those reasons, I would suggest there was

25 relevant and significant intelligence that wasn't passed

 

 

71

 

1 to the MIT.

2 Sir, that concludes the areas that I wanted to

3 cover. I hope that that all addresses the specific

4 points that were raised in Mr Myers' letter, but of

5 course I'm here to answer any other questions.

6 THE CHAIRMAN: Thank you very much, Mr Griffin. That's

7 a great help.

8 Mr Griffin, we are going to adjourn for a few

9 minutes and consider your submissions and also Mr Egan's

10 and see whether there are any other points we might

11 raise.

12 MR GRIFFIN: Thank you very much, sir.

13 THE CHAIRMAN: Thank you.

14 I will say we won't be back for ten minutes.

15 (12.40 pm)

16 (Short adjournment)

17 (12.58 pm)

18 Questions from THE PANEL

19 DAME VALERIE STRACHAN: I have a couple of questions, if

20 I may.

21 The first relates to the question that was in the

22 Panel's letter, which was: did the MIT cast its request

23 for intelligence received before the murder sufficiently

24 widely? Should the request have encompassed all and not

25 just Loyalist terrorist suspicious activity in the days

 

 

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1 and weeks before the murder? And you, Mr Egan, I think,

2 sought to answer that question but your answer left me

3 with a further question.

4 You referred to the policy decision which put in

5 writing Mr Kinkaid's request for intelligence, and

6 I would agree that did cover a lot of ground but it was

7 very much Loyalist terrorist ground. So I think the

8 question that the Panel asked remains to be answered.

9 Perhaps I could invite to you answer it.

10 MR EGAN: I wonder, could we have the document up again,

11 please at -- forgive me for not having my reference

12 instantly to hand -- RNI-616-777, please (displayed)?

13 And the answer -- and it may be -- and I apologise,

14 I won't go a great deal beyond what I have already said

15 because I'm relying on Mr Kinkaid's evidence in relation

16 to this. But the answer involves looking at all of the

17 document, and true it is that there is -- there are

18 references to Loyalisms, there is reference to Red Hand

19 Defenders suspects, but SB will provide intelligence on

20 Loyalist bomb makers in Northern Ireland, SB will

21 provide intelligence, if obtained, on those suspected of

22 involvement in the murder, an open request. SB will

23 provide B567 as liaison officer to the inquiry. And the

24 reason given for that -- and in my submission, you

25 should not construe this document as a number of

 

 

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1 desperate requests that are unrelated.

2 What this document is seeking to do -- and I do

3 emphasise this -- I know I have said this,

4 Dame Valerie -- but this is the day after the murder.

5 This is the SIO innovatively in Northern Ireland making

6 requests that SB had never seen before, and what he is

7 seeking to do is he is seeking to put down as much as he

8 can. But it doesn't stop there, and in my respectful

9 submission, the answer to the query is that this is the

10 setting up of a system whereby the MIT are able to

11 prosecute their requests for information and make sure

12 that SB follow it up. And, therefore, one has to then

13 go on to look at the further conduct by the MIT,

14 Mr Kinkaid, but others as well and their meetings with

15 Special Branch. And in reality, one of the reasons why

16 I say it is telling that no one makes the submission, as

17 it were, well, we didn't feel this matter was -- is that

18 everybody knew what was needed in this case, with the

19 greatest of respect to Special Branch, with the greatest

20 of respect to the RUC. They knew perfectly well what

21 the MIT needed in this case.

22 And as I say, if you look at this series of requests

23 collectively and then factor that in, as I say, it is

24 not a requisition, it is factor that into the setting up

25 of a system where there will be interaction and

 

 

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1 information going forward. I really -- I'm rather

2 anxious not to ask the question, "Who could have done

3 more?" because inevitably one can always sit back many

4 years later and think as a drafting exercise would we

5 have done it differently. Well, it may be that one

6 would have done.

7 THE CHAIRMAN: It is not a criticism of Mr Kinkaid, this

8 particular document, but the document read by anybody

9 receiving it would be it is coloured Loyalist. That is

10 the message that is being sent by the document. It is

11 not a criticism of Mr Kinkaid, but just reading it.

12 MR EGAN: But I wonder is this really just a recognition by

13 Mr Kinkaid of the expression, if I could use

14 Dame Valerie's words -- I can't remember the reference

15 now -- it is a duck if it looks like a duck, et cetera.

16 Unfortunately, at this stage in the proceedings,

17 even the day after, the likelihood was that Mrs Nelson

18 was murdered by Loyalist terrorists. However, if

19 Mr Kinkaid had confined his requests to just Loyalists,

20 then the construing point may be a telling one, but he

21 hasn't. And one looks at the rest of the conduct of the

22 MIT and the examination of any intelligence that came

23 their way and its examination and assesses it in

24 that way.

25 DAME VALERIE STRACHAN: So are you essentially relying on

 

 

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1 items 5 and 6 to broaden it out to everything and

2 everybody that might be involved?

3 MR EGAN: I don't want to seem ungenerous at that

4 suggestion, but in fact there is more than that.

5 I think one has to look, rather than relying on 5 and 6,

6 as it were, to save the proposition; this is a series of

7 requests by a considered man. True it is that he is

8 looking at Loyalism, but he is looking at other things

9 as well.

10 DAME VALERIE STRACHAN: I'm not suggesting that you should

11 grasp at a straw or that those are straws. What I'm

12 trying to do is to make sure that I have got the proper

13 construction of that request.

14 MR EGAN: I follow. Forgive me if I was intemperate if my

15 reply.

16 It is a series of requests and true it is, of

17 course -- you are right -- 5 and 6 are a very important

18 part of that. I think I have already mentioned, but I'm

19 reminded about it, that this was followed by a meeting

20 with SB, just one of many. And then one can work

21 through the meetings. So it has to be combined with

22 those.

23 There are details here in, I think -- I'm asked to

24 look at -- yes, I'm not quite sure -- yes, I already

25 have drawn your attention to item 5. Item 2 is

 

 

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1 non-specific as well. True. I hope that --

2 SIR ANTHONY BURDEN: Can I sort of follow on from that,

3 Mr Egan? As the Chairman has said, this is not

4 a criticism of Mr Kinkaid. Indeed, in support of what

5 you have said, the fact that this was done early and the

6 content of this document certainly sets wheels in

7 motion.

8 MR EGAN: Yes.

9 SIR ANTHONY BURDEN: But there is, I think, an issue and it

10 is this: whether there was a need to, in the cold light

11 of day, the days and weeks ensuing, to review this

12 document and maybe, when others such as

13 Sir David Phillips or, indeed, at the 28-day review

14 stage there was a need to review and possibly extend the

15 parameters set within this document. The danger being,

16 of course, that once it is in existence as a document,

17 unless amended and unless extended, it tends to remain

18 the framework in which people operate. And the

19 impression given to an investigation team is very much

20 tempered by what the senior investigating officer says

21 and what he or she wants to be achieved.

22 So I just put that to you. You know --

23 MR EGAN: I think, sir, certainly that's a view -- that's

24 a view that could be taken. It is articulated in that

25 way.

 

 

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1 It needs to be, however, very much predicated on the

2 basis that this is 16 March and time moves on, and one

3 of the reasons why, in my submission, it is so telling

4 that none of the owners of the intelligence rely on

5 this, as it were -- "Well, we did all we were asked" --

6 is because they knew perfectly well what they were being

7 asked because this was a developing picture.

8 Any investigation is organic. On 16 March 1999, ten

9 years ago now, matters were very different than they

10 were, for example, even on -- I gave the example of

11 Mr Kinkaid's meeting on 26 March as evidence in D95. It

12 is then moving on. What they are not doing is confining

13 their enquiries, and the whole widening of the ambit by

14 the MIT to look at everything was also followed through

15 in their looking at the intelligence. The SB can be in

16 no doubt about that and that is one of the reasons why

17 they don't rely on this, as I understand it, or if they

18 do, I don't understand that submission yet to have been

19 made.

20 THE CHAIRMAN: If there was any Republican intelligence that

21 might be of relevance in the days or weeks before the

22 murder, none was disclosed. I predicate it by the word

23 "if".

24 MR EGAN: It may be, again, on a construing point, if one

25 looks at 5:

 

 

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1 "SB will provide intelligence, if obtained, on those

2 suspected of involvement in the murder."

3 It's a very, very wide piece of drafting indeed and

4 would cover Loyalist and Republican intelligence, in my

5 respectful submission. And there was good coverage on

6 Republican intelligence. I mean, that's not my

7 assertion; that's Mr Kinkaid's evidence because he was

8 asked about it, I seem to recollect, by Dame Valerie and

9 he regarded that as a wide request. And, indeed, he is

10 right to regard it in that way; it is wide.

11 They can have been in no doubt subsequently in the

12 course of the meetings of the determination of the MIT

13 to get as much material as they could.

14 DAME VALERIE STRACHAN: Thank you for that. That's very

15 helpful. And I'll move on from the duck and on to the

16 second question.

17 You referred, Mr Egan, to the work done by [name

18 redacted] to try to follow through on the limited

19 information that the team had got in relation to the

20 Pat Finucane Centre statements, and indeed [name

21 redacted] work generally has been extremely thorough and

22 useful, I think, to the team and, indeed, to the

23 Inquiry. But as I understand it, what he was doing was

24 a very careful detailed analysis of everything that the

25 records showed, everything that the security force

 

 

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1 records showed. What it couldn't do -- do correct me if

2 I have got this wrong -- is analyse things that were not

3 recorded. And obviously we don't -- again, we don't

4 know what we don't know and he couldn't know what he

5 didn't know -- it does leave open the possibility that

6 things might have been done -- and, again, it is a big,

7 big if -- by the security forces, which were not

8 recorded. And in that regard, can I ask you a question

9 relating to evidence that was given to us by Mr and

10 Mrs McStravick, which is that they encountered a patrol

11 for which there are no records.

12 And the question that that raises in people's minds

13 is: could this have been an unofficial patrol by

14 security force personnel who were off duty? And in the

15 light of that, was it wise for the MIT to confine their

16 taking of statements to the personnel who were on duty

17 over that weekend?

18 MR EGAN: Can I deal with that then in those circumstances?

19 The McStravicks are -- come under the heading --

20 they were in fact dealt with in the evidence of

21 Mr Provoost under the heading -- you may recollect this

22 -- "Anonymous sightings". And the adjective "anonymous"

23 I think comes from Judge Cory's report who regarded the

24 McStravicks as an anomaly.

25 It is dealt with -- Mr Provoost was not in fact

 

 

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1 asked about it. You heard evidence from the three

2 McStravicks, but he deals with it for your reference at

3 RNI-817-183 at paragraph 171. I hope, perhaps, that

4 could be put up. RNI-817-183, I hope (displayed).

5 Thank you.

6 Put very shortly -- I know the Panel will be well

7 aware of this -- this is the family who, let me say

8 this, everyone agreed even before they gave evidence

9 were credible witnesses. They had a good reason for

10 remembering the date -- I think we will all remember it,

11 I think it was Mothering Sunday and they had been out

12 for a very nice family dinner and were coming home at

13 about 8 pm. There was a checkpoint not far from Ashford

14 Grange, according to them.

15 The MIT had this information, and if you go down to

16 paragraph 174, please, we see that Mr Provoost -- this

17 was investigated very thoroughly indeed by the MIT.

18 They were able to trace six witnesses who travelled

19 along the same road between 7 and 9 pm, none encountered

20 a police or militarily checkpoint. All three of the

21 McStravicks were interviewed in detail and these matters

22 were the subject of review.

23 The analysis, I appreciate, your comments, of

24 military and police movements identified in the Lurgan

25 area was a massive exercise and this is perhaps the one

 

 

81

 

1 real anomaly that nobody could identify. I think it is

2 right that the evidence, certainly the recordable

3 evidence -- you have had submissions, I think, just

4 now -- I shouldn't have thought the Panel will have seen

5 them -- from the Ministry of Defence about Gazelle 6.

6 I think we are going to be hearing from them this

7 afternoon. But Gazelle 6, just to remind you, was the

8 last recorded helicopter flight, 23.15 to 23 -- landed

9 at 23.53. It had the same liaison officer as Gazelle 4,

10 which had flown on earlier in the evening. That is

11 A645, I think, from memory.

12 Now, the MIT -- and if one looks, please, at

13 RNI-817-184 (displayed) -- the MIT considered the

14 alternatives. I think this is a very similar series of

15 propositions as I have just read in the MoD's

16 submission. Firstly, that the witnesses were mistaken;

17 secondly, that it was a legitimate Army or police

18 checkpoint at the time; and thirdly, that there was

19 a road patrol in the area.

20 Now, if one turns over the page, one sees:

21 "Whilst any one of the above is a possibility, it

22 seemed to the MIT that if the latter was a viable

23 proposition, then the perpetrators took a serious and

24 unnecessary risk in exposing themselves to three

25 potential witnesses. Anyone planting the device at the

 

 

82

 

1 early time of Sunday evening would have been

2 considerably more a direction. Moreover, it would have

3 been a very risky enterprise for anyone to undertake

4 a road patrol, whether police or military, on the edge

5 of Kilwilke in the hours of darkness without protection

6 and support."

7 Now, in the very careful and detailed investigation

8 that the MIT did -- it was, of course, to examine with

9 care on-duty servicemen. It must be right -- I think in

10 fact even Mr Ayling -- 11, 12, 15 -- conceded that it

11 would be an enormous task to investigate all the

12 off-duty personnel as well as the on-duty personnel.

13 And also it raises the proposition of would it have been

14 possible for individuals unconnected with the security

15 forces to obtain military uniforms, acquire a Land Rover

16 or, indeed, to use their uniforms and use a Land Rover

17 while on duty.

18 The investigators followed their intelligence and

19 the evidence in this case, and that is exactly what they

20 had done throughout. They did investigate a number of

21 security force personnel during the course of the

22 investigation when they became aware of circumstances

23 which made such investigations worthwhile. There was no

24 closed mind on this and, for example, officers who had

25 improperly conducted checks on Mrs Nelson's cars, and

 

 

83

 

1 the presence of police cars at Lurgan police station in

2 the early hours of the morning, et cetera.

3 But in relation to this, the decision taken by the

4 MIT to confine this investigation, bearing in mind what

5 was being suggested and bearing in mind the anomalous

6 nature of it and the fact that it remains unsolved, was

7 a perfectly, in my submission, reasonable decision which

8 was in the range of reasons that a reasonable

9 investigator could have taken.

10 Now, it puzzled everybody, did the McStravick

11 incident. It puzzled Judge Cory -- see his report at

12 4.231 -- because they were credible, and that

13 obviously raises this issue. But in relation to this

14 particular matter, the MIT did not feel that they could

15 have gone further, reasonably.

16 DAME VALERIE STRACHAN: So it still leaves us with a puzzle,

17 I think.

18 MR EGAN: In fairness, Dame Valerie -- and I hope I'm not

19 seen to make a smart point on that -- that's exactly why

20 a diligent officer like Mr Provoost would call it an

21 anomalous sighting and that's why he carefully

22 considered the alternatives, as he has put in his

23 statement. They were alive to this possibility, were

24 the MIT.

25 DAME VALERIE STRACHAN: Yes.

 

 

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1 THE CHAIRMAN: It would be very odd that it would occur so

2 early in the evening if it was connected with placing

3 the device at a much later hour.

4 MR EGAN: That's the point that Mr Provoost says, I think at

5 178.

6 There are two points that arise out of that.

7 Firstly, it obviously -- second, it shows that he

8 considered it. Diligent and proper examination of this

9 kind of matter by properly exercised investigating

10 officers involved them considering questions such as

11 that. And when there is evidence, as there is in this

12 case, that a diligent officer has done it in that way,

13 that's powerful evidence of someone who is acting

14 diligently.

15 DAME VALERIE STRACHAN: Yes. It still leaves me with

16 a puzzle because it seems to me that security force

17 personnel who are on duty are, as it were, acting with

18 within a system. And if you are acting within a system,

19 it seems to me, it reduces the likelihood or possibility

20 that you would get involved in a kind of bit of free

21 enterprise activity and facilitate somebody's murder.

22 It is at the lower end of likelihood.

23 If, however, security force personnel of any kind

24 did mean Mrs Nelson harm -- and I emphasise a big if --

25 then the natural thing to do would be to do it not when

 

 

85

 

1 you were on duty, within the system, but when you were

2 off duty. I appreciate it would have left the MIT with

3 a big task, but that's the puzzle that we have to

4 resolve.

5 MR EGAN: But the MIT were aware that -- of possible

6 involvement. I'm trying to be as careful as I can be

7 now.

8 Suspects did arise and were investigated in a way --

9 I'm trying to be as careful as I can be -- that could

10 come under this heading, comparatively quickly, and that

11 was done by following the intelligence and the evidence

12 that came its way.

13 The concept that they should have used this to

14 expand their enquiries to encompass every, as it were,

15 employee of the armed forces or security services in

16 Northern Ireland, whether they were on duty -- because

17 this was after all looking at Army activity on the night

18 in question. That was the first point raised or the

19 principal point raised.

20 The concept that they should then widen that to

21 everyone would have left the MIT perhaps with a real

22 problem in the kind of focus that they had to -- they

23 had to find the murderers of Mrs Nelson, they had to

24 focus on collusion and to do so they had to take

25 reasonable and proportionate steps to do so.

 

 

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1 In reality -- and I hope this isn't seen to be in

2 any way a comment -- the very thoroughness of the way

3 they approached the on-duty personnel leaves really the

4 only available comment to be, well, you didn't do the

5 same with off-duty personnel. But it was considered,

6 and the thought of it was considered, but it was decided

7 not to do so because that would have been

8 disproportionate.

9 THE CHAIRMAN: Every off-duty soldier would have to be

10 interviewed to be asked where he was on that night, what

11 he was doing and that would then have to be checked?

12 MR EGAN: That's the point.

13 THE CHAIRMAN: To see if it was a dishonest alibi, and that

14 would have to be done logically to every single

15 certainly person either in the third brigade or 3RIR,

16 wouldn't it?

17 MR EGAN: Indeed, why confine it to that? Anyone in the

18 armed forces within the Mid Ulster area and, of course,

19 if I may say so, sir, that absolutely perfectly

20 identifies the problem that you would instantly -- when

21 asking for any information about off-duty movements, you

22 would need to be looking for corroboration of that and

23 it would be a multi-layered exercise, which -- well,

24 really would have created too large a task.

25 THE CHAIRMAN: Thank you very much, Mr Egan. We will

 

 

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1 adjourn now until 25 past two.

2 (1.25 pm)

3 (The short adjournment)

4 (2.25 pm)

5 THE CHAIRMAN: Yes, Mr Maxwell-Scott?

6 Closing submissions by MR MAXWELL-SCOTT

7 MR MAXWELL-SCOTT: Good afternoon, sir. I understand that

8 you have my written submissions on behalf of the

9 Ministry of Defence and that they have been circulated

10 and scanned into the system at RNI-930-001?

11 THE CHAIRMAN: Yes.

12 MR MAXWELL-SCOTT: In them I address two major issues and

13 then two miscellaneous issues. The two major issues

14 were firstly the flight of the Gazelle 6 helicopter and

15 then, secondly, the activities of MoD personnel in the

16 area of Rosemary Nelson's house over the weekend before

17 her murder, and including within that the evidence

18 concerning checkpoints and controls during that weekend.

19 THE CHAIRMAN: Yes.

20 MR MAXWELL-SCOTT: I have dealt with those two issues

21 together in my issue number 2 because they seem to me

22 firstly to naturally go together and, secondly, because

23 the submissions on behalf of the family also addressed

24 them together.

25 Sir, you will have seen that I have dealt with the

 

 

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1 flight of the Gazelle 6 helicopter in rather more detail

2 than the second issue and the reason for that is

3 essentially this, that the Gazelle 6 helicopter issue

4 relates to known and identified individuals, all of whom

5 have given witness statements to this Inquiry and some

6 of whom have given oral evidence to this Inquiry. And

7 there is, therefore, a considerable amount of evidence

8 to look at and analyse and I have sought to do that as

9 best I can in the written submissions.

10 The second issue to do with troop activity on the

11 ground and in particular checkpoints and patrols, it

12 seems in my submission to boil down to the evidence from

13 the McStravicks about the unexplained checkpoint, and

14 I say that because the various reports and

15 investigations that have taken place appear to identify

16 that as the primary or perhaps the only anomaly that

17 could be said to relate to the activities of MoD

18 personnel on the ground across the weekend.

19 I have dealt with this more concisely because by its

20 very nature this is an issue on which there is not very

21 much evidence and the persons involved, if such

22 a checkpoint ever existed, have never been identified.

23 Sir, I'm in your hands as to which stage in my

24 submissions you would wish to intervene and ask me any

25 questions that you have.

 

 

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1 THE CHAIRMAN: It is up to you. If it would assist you --

2 and it does assist some advocates if we put points to

3 you early on and gave you full opportunity to answer

4 them and then, if you want, to sort of summarise your

5 position at the end. Would that assist you?

6 MR MAXWELL-SCOTT: I think that would assist me, sir.

7 THE CHAIRMAN: Well, should I start the bowling -- I hope

8 there won't be googlies -- would it be reasonable to

9 infer that the overall provenance of A188, which

10 includes his social, family, geographical and cultural

11 background and his expressed attitudes, was with not

12 atypical of a significant number of the rank and file

13 soldiers in the RIR? We have got to be careful, of

14 course, in the submissions to use ciphers.

15 MR MAXWELL-SCOTT: In my submission he would be atypical in

16 the evidence that he has given and the opinions he has

17 expressed, and I say that looking at the evidence

18 collectively of persons who have given witness

19 statements to this Inquiry and haven't been called and

20 also those who have given witness statements who were

21 soldiers and have been called. And looking at those

22 witness statements and that evidence collectively,

23 I think the following points emerged.

24 Many of those soldiers had not heard of

25 Rosemary Nelson at all before her murder. That's my

 

 

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1 first point.

2 My second point is that the evidence has been that

3 her photograph was not on the wall in the intelligence

4 briefing room at 3 Royal Irish's barracks.

5 THE CHAIRMAN: There was some evidence that, as far as I

6 could remember, there wasn't or there weren't

7 photographs up. It wasn't conclusive evidence that

8 photographs were never up in the operations room,

9 was it?

10 MR MAXWELL-SCOTT: I think my point is there were

11 photographs of some people, some suspects, but that she

12 was not amongst them.

13 THE CHAIRMAN: Not among them. Yes, thank you.

14 MR MAXWELL-SCOTT: And thus she was regarded by way of

15 intelligence briefings as not being a suspect and not

16 being a person of interest, unlike others who were

17 regarded as suspects and whose photographs were

18 displayed so that people could familiarise themselves

19 and whose registration numbers were known so that people

20 could be familiar with their cars.

21 So she didn't fall into that category and she only

22 got involved in matters such as checkpoints when

23 somebody who was of interest was with her. So she

24 became of interest only on coincidental occasions when

25 she was with somebody who was on that list of suspects.

 

 

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1 Returning to the general theme of attitudes and

2 whether A188 was or was not atypical, I would submit

3 that you have heard evidence that a small proportion of

4 soldiers may have been prejudiced in some ways towards

5 lawyers who acted for terrorist suspects, but that it

6 was a small proportion. There, equally, has been very

7 little evidence from soldiers of ever witnessing or

8 hearing of favouritism being displayed at vehicle

9 checkpoints to those from one religious or community

10 affiliation rather than another. Again, very little

11 evidence of sightings being made but not being reported

12 because of some sympathy with the person sighted.

13 So I would say on the balance of the evidence, A188

14 and the attitudes which he expressed himself as having

15 held at the time were atypical, and I think it is also

16 important to bear in mind his specific circumstances

17 with regard to Rosemary Nelson and people she knew

18 because he said, I think in answer to a question from

19 you, sir, that Rosemary Nelson had personally acted in

20 a murder case --

21 THE CHAIRMAN: Yes, I don't think we need to go into further

22 details, but I am familiar with that, yes.

23 MR MAXWELL-SCOTT: So that could be a reason why he held

24 strong views about her specifically, which he may not

25 have held so vehemently about other persons who might

 

 

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1 perhaps have held similar jobs or performed similar

2 functions but with whom he didn't have that connection.

3 And it may also explain why he attributed some views to

4 others or took the view that others shared his views

5 when, in fact, in his oral evidence I think he reflected

6 on that and felt that that was perhaps an assumption on

7 his part that other people shared his views, rather than

8 something he knew directly from conversations with them.

9 So for all of those reasons, I would submit that

10 A188 was atypical.

11 THE CHAIRMAN: Accepting for the purposes of argument your

12 submission that he is not typical and, if not unique,

13 would be one of a very few in number, would you agree

14 that such a soldier that had a similar sort of

15 background and provenance would be fertile soil to

16 receive deliberate or idle disparaging comments about

17 Rosemary Nelson, which might come possibly from members

18 of the RUC who he meets in the police station in Lurgan

19 or when the officer is attached to a patrol unit, that

20 he would be receptive to disparaging remarks about

21 Rosemary Nelson?

22 MR MAXWELL-SCOTT: Well, I think there is direct evidence

23 from A188 himself that he was told something about how

24 Rosemary Nelson came by the mark on her face --

25 THE CHAIRMAN: Yes.

 

 

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1 MR MAXWELL-SCOTT: -- by a police officer and he seems to

2 have taken that at face value. So in his particular

3 circumstances then he did appear to have been receptive

4 to that remark on that occasion. And inevitably, if one

5 took -- or hypothesised an identical soldier to A188

6 with identical views, he might well have been equally

7 receptive to that remark.

8 THE CHAIRMAN: And of course in those circumstances it would

9 not be unlikely that such a soldier would pass on the

10 comments to people who might be Loyalist paramilitaries

11 or associated with Loyalist paramilitaries, either as

12 gossip or deliberately?

13 MR MAXWELL-SCOTT: In my submission, that is a big

14 additional step, a very big additional step in the

15 argument. And coming at the same point from another

16 direction, there has been quite a bit of evidence about

17 the assessment of the possibility of collusion within

18 the 3 Royal Irish battalion, and you have heard from MoD

19 personnel who had, as it were, a role or a watching

20 brief in investigating any allegations of collusion.

21 And they could in theory be of a casual nature of people

22 drinking in the same pub in certain districts or areas,

23 but the evidence has been that risks were investigated

24 and considered but that very few substantiated cases

25 were ever found.

 

 

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1 So it would seem on that basis that taking active

2 steps, however modest they might be, towards colluding

3 with paramilitaries was in practice a very big step and

4 something that very few people on the evidence ever

5 took.

6 THE CHAIRMAN: It wouldn't necessarily, of course, have to

7 be a deliberate collusive step. If somebody is in

8 receipt of disparaging remarks, coming possibly,

9 originally, from some RUC officer or somebody else, and

10 then idly repeats it, it could have a devastating effect

11 in that paramilitaries could pick it up and say in their

12 minds, "We have a legitimate target".

13 MR MAXWELL-SCOTT: It is not a possibility that can be ruled

14 out, but such comments could hypothetically also come to

15 the attention of paramilitaries in all sorts of other

16 ways without having to come through the mouths of

17 soldiers.

18 THE CHAIRMAN: Thank you very much, Mr Maxwell-Scott. Would

19 you like to continue?

20 SIR ANTHONY BURDEN: Can I just ask a question about

21 record-keeping, if I may?

22 My impression of the Army is it is a very regulated

23 environment and use of helicopters and the like would be

24 well recorded in some detail. But, of course, in

25 relation to Gazelle 6, we have this issue of the

 

 

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1 recording of the journey. Alongside that, Mr Provoost

2 has told us that in checking the records generally,

3 there were other flights which were not correctly

4 recorded.

5 Could you firstly tell me if you are able, in

6 relation to Northern Ireland at this time, would this

7 have been regarded as a theatre of operations as opposed

8 to a normal military environment, and would that have

9 affected the way in which helicopters, vehicles and

10 maybe even patrols were sent out, records kept, or was

11 it really a situation where, because of the peculiar

12 circumstances, such things as helicopters were used more

13 freely, with less of a bureaucratic process to record

14 their use?

15 MR MAXWELL-SCOTT: I think I'd probably prefer to come back

16 to that question at the end because there are people

17 behind me who can probably give me some assistance on

18 the technicalities of whether it is a theatre of

19 operation at the time.

20 SIR ANTHONY BURDEN: Okay.

21 MR MAXWELL-SCOTT: I can certainly assist you with some of

22 specifics of the record-keeping on the Gazelle 6 flight

23 and the comparison between that and other records of

24 other helicopter flights, if that would assist.

25 SIR ANTHONY BURDEN: Yes, please.

 

 

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1 MR MAXWELL-SCOTT: You have just made the point, sir, that

2 the modest amount of record-keeping with respect to the

3 Gazelle 6 flight was not unique, even across the period

4 of a few days or weeks that was looked at by

5 Mr Provoost. And I think he identified 12 other flights

6 where the level of record-keeping was similarly modest.

7 The point that has been made and which has attracted

8 some attention to the Gazelle 6 flight is that the

9 record-keeping by way of the watchkeeper's log doesn't

10 contain details, whereas a flight over broadly the same

11 area by the Gazelle 4 helicopter earlier in the day does

12 contain a number of details. In my submission, the best

13 explanation of this is that nothing of interest was seen

14 during the comparatively short Gazelle 6 flight over the

15 Lurgan area on the evening of 14 March, and there being

16 nothing of interest seen, there was accordingly nothing

17 of interest to note and nothing was noted. And that is,

18 in my submission, the best explanation.

19 It is not to say that it was right and proper that

20 absolutely nothing should have been recorded at all, but

21 it is, in my submission, the best explanation on all of

22 the evidence of why nothing was in fact recorded in the

23 watchkeeper's log.

24 THE CHAIRMAN: But this was not a scheduled flight over

25 Kilwilke; it was a retasking. It wasn't originally

 

 

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1 going over Kilwilke. So somebody had a purpose in the

2 flight, one would have thought. It wasn't just sent

3 there for no reason. One would have thought, if that

4 assumption is right, that the tasking would have said,

5 "Fly over Kilwilke in order to see this or that," and

6 that if this or that was not there or there was nothing

7 to see, that either a radio message would be given back

8 during the flight, or alternatively there would be

9 a debriefing at the end of the flight, bearing in mind

10 it was a retasking.

11 MR MAXWELL-SCOTT: That is why, sir, I made the point a few

12 moments ago that it is not right and correct that

13 nothing at all was recorded, and I think one might

14 reasonably have expected a record to have been made

15 simply saying, "All quiet over Kilwilke Estate".

16 But the balance of the evidence and analysis by way

17 of logic suggests, in my submission, that the aircraft

18 was retasked to check whether, as people believed, the

19 Kilwilke Estate was probably now quiet with the

20 incidents that had arisen earlier in the day having

21 probably died down, and a brief flight of no more than

22 12 minutes or so confirmed the working hope or

23 expectation that things would have quietened down and

24 that that is why nothing was recorded, because there was

25 nothing of note to record.

 

 

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1 As I say, I accept it would have been preferable if

2 a record had been made to that effect -- "Nothing of

3 note to record" -- but it wasn't.

4 THE CHAIRMAN: Does not the evidence, or rather the lack of

5 evidence, about the Gazelle 6 flight at that time of the

6 night raise at least a very serious suspicion of

7 collusion that the flight was being used by someone to

8 obtain information that the coast was clear and it was

9 safe to enter the area, albeit that the crew members

10 were wholly innocent and wholly ignorant of the motive

11 for the retasking? What do you say to that?

12 MR MAXWELL-SCOTT: Expanding upon the point in my written

13 submissions, I find it very difficult to envisage, even

14 as a matter of theoretical hypothesis, how the

15 helicopter could have been of use to conspirators unless

16 one person, as a minimum, on the helicopter was actively

17 involved in the conspiracy.

18 THE CHAIRMAN: If, for example, the liaison officer was

19 tasked to find out if all was quiet and there was no

20 movement of vehicles, nothing suspicious in the Kilwilke

21 area generally and in the area of Rosemary Nelson's

22 house, and that message was the message that the

23 conspirators wanted, he could be wholly innocent and not

24 know why, because he wouldn't expect to be told why.

25 Couldn't that occur?

 

 

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1 MR MAXWELL-SCOTT: It is a theoretical possibility, but it

2 would still involve conspiracy on the part of

3 individuals who have been identified, have given

4 evidence to this Inquiry, presumably at Mahon Road

5 barracks, who haven't been challenged about this point,

6 who have been investigated to the extent that it is

7 necessary to do so and no suspicion has ever been raised

8 of their inclinations or motives.

9 And I come back to the point I make in my written

10 submissions, that it is an enormously elaborate way to

11 do something in fact very simple and basic, namely to

12 check that the coast is clear. And it would be very

13 much simpler and, therefore, very much more likely to do

14 that with people on foot on the ground, rather than

15 having to rely upon retasking a helicopter, in fact the

16 only helicopter that would be operating over

17 Northern Ireland at that time of night, and which could

18 always be required to go off and do something of more

19 immediate urgency than the small task that it had been

20 given for the 23.30 to 00.30 hours slot that evening.

21 A plan that depended upon the availability of the

22 helicopter and the opportunity to use it in practice

23 across that timeframe and to be able to retask it from

24 its pre-assigned task would be an extraordinarily

25 complex plan and an extraordinarily over-elaborate plan,

 

 

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1 in my submission.

2 THE CHAIRMAN: There is suggestion in the evidence that the

3 RUC did get in touch with Mahon Road from time to time

4 without warning to the people like the liaison officer

5 saying, "We want a helicopter to fly over such and such

6 a place. Tell us this and that." I mean, the tasking

7 could originate, couldn't it, with the RUC?

8 MR MAXWELL-SCOTT: It is theoretically possible. The

9 operations officer A660 said in evidence that although

10 he didn't remember the retasking, he thought it was

11 likely that he would have asked for the retasking

12 because he had been operations officer overseeing the

13 incidents that had arisen in the Kilwilke Estate earlier

14 in the day. Therefore, it would be reasonable and

15 natural for him to take the opportunity of the

16 helicopter's availability to have a quick look at what

17 was going on in the estate. So although it is

18 theoretically possible that the request for retasking

19 might have come from the RUC, it is in my submission

20 more likely and natural that it came from within

21 3 Royal Irish.

22 THE CHAIRMAN: And you submit that a number of what one

23 might describe as unorthodox coincidences relating to

24 Gazelle 6 all are capable of, even cumulatively, an

25 innocent explanation?

 

 

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1 To give an examples: there's the change of tasking;

2 there is the absence of any evidence from A660 -- that's

3 the operations officer -- that he authorised or

4 instructed the retasking; there is an absence of

5 evidence as to who tasked and briefed A645, the liaison

6 officer; there is the absence of any evidence of any

7 message, radio message, from the flight; absence of any

8 debrief record; and then, of course, the absence of any

9 record on the watchkeeper's log between 2200 hours and

10 midnight; and the omission from the liaison officer's

11 early statement of any mention of the late flight of

12 Gazelle 6 on which he was liaison officer.

13 Those are all unusual circumstances. Would it be

14 wrong to draw any inference, cumulatively, from all

15 those omissions or ...

16 MR MAXWELL-SCOTT: In my submission, it would be wholly

17 wrong and although, listed in that way, it looks like

18 a long list, in fact there are a small number of themes

19 that come through in that list, the first of which

20 relates to retasking. And there has been sufficient,

21 indeed more than sufficient, evidence that retasking of

22 helicopters was a relatively common event.

23 So in my submission, there is nothing unusual about

24 retasking from a fairly routine task that was listed

25 perhaps two weeks in advance in the tasking sheet to

 

 

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1 acting on events earlier in the day, having a quick look

2 to see whether incidents have died down. So that's the

3 first point about retasking.

4 The second theme within that list relates primarily

5 to record-keeping and you may think that in a whole

6 range of institutional circumstances it is not unusual

7 to come across record-keeping that is not as good as it

8 might be, not as detailed as it could be or perhaps even

9 poor because of the scant records kept.

10 THE CHAIRMAN: It was a contagious disease in this

11 operations room, was it?

12 MR MAXWELL-SCOTT: I'm talking about a whole range of

13 institutions, not the Ministry of Defence in this case.

14 THE CHAIRMAN: In this operations room, everybody either

15 forgets to remember the flight in his statement, doesn't

16 remember tasking, doesn't know who tasked him and there

17 is no record in the watchkeeper's log. That's what

18 I meant by a contagious disease in that particular

19 operation.

20 MR MAXWELL-SCOTT: There is no record in the watchkeeper's

21 log and that is the place that one would expect there to

22 be a written contemporaneous record. It is not the case

23 that there are three or four other places where one

24 would also expect this to have been recorded

25 contemporaneously. There is the single one of the

 

 

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1 watchkeeper's log. There is nothing recorded. Poor

2 record-keeping is not unusual in many institutional

3 situations. It is certainly a much more common

4 eventuality than conspiracy to commit murder. It is

5 an obvious point.

6 But the explanation for the poor record-keeping is

7 the one that arises as the direct answer to your third

8 theme, which is why does nobody bother to write anything

9 down about this. And the answer to that is because

10 nothing of any interest happened, unlike during the

11 Gazelle 4 flight earlier in the day when there were

12 a number of interesting incidents to report on in real

13 time over a flight that took much longer than

14 a Gazelle 6 flight. And in those circumstances, it is

15 not perhaps surprising that when people are asked to

16 recall the flights that occurred that day -- and A645 is

17 the only person who was on both of those flights -- that

18 their recollection would immediately turn to the much

19 longer and much more eventful Gazelle 4 flight and that

20 they might overlook to mention the Gazelle 6 flight

21 during which nothing of interest occurred.

22 And the view that nothing of interest occurred

23 during it is one shared by the pilot and the commander

24 and the liaison officer, and the evidence is that the

25 pilot and the commander did not know the liaison officer

 

 

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1 before the flight, or vice versa.

2 So there is no reason to doubt the truthfulness of

3 the account that nothing of interest occurred during

4 that flight. And if that is so -- and assuming for the

5 moment that it is -- then that, in my submission, goes

6 a long way towards explaining the lack of record-keeping

7 in respect of that flight.

8 Just supposing for a moment -- coming back to your

9 original hypothesis about a conspiracy that doesn't

10 involve any of the three persons on the flight but the

11 liaison officer merely being asked to check is it all

12 quiet over the estate -- surely the most obvious thing

13 for conspirators to do in those circumstances if they

14 are back in the operations room is to record that in the

15 log, rather than attracting all of the suspicion that

16 their absence of record-keeping has done. Because if

17 these are people actively and alertly involved in

18 a conspiracy, they would know that records would be

19 checked and they would also know that air traffic

20 control -- they would surely know this -- would know

21 where that flight had been at particular times during

22 the night. And it is, indeed, through air traffic

23 control records that we do know that it spent

24 approximately 12 minutes operating in the Lurgan area.

25 THE CHAIRMAN: Yes. Thank you very much.

 

 

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1 DAME VALERIE STRACHAN: Could I ask your help on one further

2 matter?

3 MR MAXWELL-SCOTT: Of course.

4 DAME VALERIE STRACHAN: And that is events on the day of

5 Rosemary Nelson's murder.

6 By way of preface, we have heard a number of

7 accounts from members of the public about behaviour

8 which, in their opinion, they saw on the part of

9 soldiers. We have also heard accounts from a number of

10 soldiers giving their version of events, and generally

11 speaking it is obviously for the Panel to make the best

12 judgment we can about where the truth lies, so I do not

13 have any questions specifically on that point.

14 One witness -- and he is O675 -- came and gave

15 evidence to us on 8 January this year. That's Day 97.

16 Part of his evidence was about behaviour of the soldiers

17 early-ish in the morning, and again we have got the

18 assistance of the analysis which was done by [name

19 redacted] of security force activity earlier in the

20 morning.

21 So apart from questions about the demeanour of

22 soldiers -- again we have to make up our minds about

23 that -- but there is no great controversy about the fact

24 that there were soldiers doing various things early in

25 the morning.

 

 

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1 He also gave us evidence about behaviour that he

2 observed after the murder and that's for us to think

3 about. But there was one aspect of his evidence on

4 which I would be particularly grateful for your help.

5 He observed, he told us, a number of soldiers very

6 shortly before the murder, i.e. late morning, getting on

7 for lunchtime, going towards Rosemary Nelson's house and

8 then very, very shortly after there was no sign of them.

9 Now, as far as I can see, looking at the records,

10 there weren't any soldiers around at that time, but that

11 is what he has told us and I would be grateful for any

12 help that you can give us on that aspect of that piece

13 of evidence.

14 MR MAXWELL-SCOTT: I doubt that there is very much that I

15 can say about that other than to deal with it in the

16 same way that the McStravicks' sighting has been dealt

17 with, namely that the movements of soldiers on the

18 ground was exhaustively considered by [name redacted]

19 and that matters were also looked at by Judge Cory and

20 by Mr Ayling. And if that piece of evidence also falls

21 into the category of being unexplained and perhaps an

22 anomaly, I don't think at this moment in time I can

23 provide any greater assistance than to invite you to

24 look at it in the same way, as unexplained, clearly if

25 you are of the view that that evidence is credible or

 

 

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1 plausible.

2 I can't provide any more assistance on it at the

3 moment. It is not an item of the evidence that has been

4 identified to me previously in the same way, for

5 example, as the McStravick sightings on which I have

6 obviously put some thoughts down on paper in my written

7 submissions.

8 DAME VALERIE STRACHAN: Yes, in fairness this piece of

9 evidence came up very late in our receiving oral

10 evidence. It is just that it is a loose end and any

11 help that you can give us will be very gratefully

12 received.

13 MR MAXWELL-SCOTT: I will certainly look into it and get

14 those instructing me to look into it, but I don't think

15 I could safely offer any more assistance on that at this

16 immediate moment.

17 THE CHAIRMAN: Mr Maxwell-Scott, would this be a convenient

18 moment to have an adjournment so that you can take

19 instructions, consider the questions Sir Anthony put to

20 you and Dame Valerie, and of course when you have done

21 that, consider to what extent you wish to make any

22 further submissions to us? Would it be a convenient

23 moment now?

24 MR MAXWELL-SCOTT: Yes, it would be.

25 THE CHAIRMAN: Right. We will adjourn now. It is ten past.

 

 

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1 Shall we say half past? That should give you sufficient

2 time. If you need a few minutes more, just pass

3 a message. Thank you very much.

4 MR MAXWELL-SCOTT: Thank you very much.

5 (3.10 pm)

6 (Short adjournment)

7 (3.35 pm)

8 THE CHAIRMAN: Yes, Mr Maxwell-Scott?

9 MR MAXWELL-SCOTT: Sir, if I might deal with the two

10 questions that were left with me at the break. Firstly,

11 Sir Anthony's question. This was at the time a theatre

12 of operations and it had been for approximately

13 30 years, at this time.

14 SIR ANTHONY BURDEN: Does that make a difference in relation

15 to normal bureaucratic regulations and record-keeping,

16 if that's a situation that pertains?

17 MR MAXWELL-SCOTT: I think given the length of time that it

18 had been a theatre of operation, there would have been

19 during that time a spectrum of operations and uses of

20 helicopters, some of which will have been important,

21 one-off targeted operations and some of which will have

22 become over time rather more routine in nature. And

23 this, I would suggest, was a routine overflight of an

24 area, having been retasked from a pre-planned routine

25 activity, that retasking in itself being by no means

 

 

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1 unusual and, in fact, being quite commonplace. And when

2 one looks at what sort of level of record-keeping and

3 documentation one might expect, you have got to look at

4 that spectrum between the routine helicopter flight and

5 the one-off operational helicopter flight, and one might

6 well expect different levels of documentation in each of

7 those circumstances.

8 SIR ANTHONY BURDEN: I see, thank you.

9 MR MAXWELL-SCOTT: Dame Valerie, if I turn to your question

10 about O675, I'm not in a position to assist you on the

11 credibility or otherwise of O675 or the possibility that

12 O675 may or may not have been mistaken. All I can say

13 today is that clearly what O675 described was

14 unexplained by the [name redacted] analysis.

15 But in terms of the subject matter, which seemed to

16 consist of soldiers being visible and then disappearing

17 from view, what I would say is that that would be normal

18 patrolling behaviour. Soldiers out on patrol,

19 particularly in an estate where there might be a certain

20 hostility to their presence, would ordinarily not act in

21 a predictable way. They would not continue walking

22 visibly in a straight line for a long period of time and

23 you have heard evidence, I think, that vehicle

24 checkpoints, when set up in such an area would only be

25 kept in a single location for quite a short period of

 

 

110

 

1 time, a matter of minutes, because of a concern that

2 once the word got around that there were soldiers who

3 had set up a vehicle checkpoint, people might wish to

4 target them.

5 So all I can say by way of assistance is that the

6 activity described would not in itself be in any way

7 unusual.

8 In terms of summing up the submissions that I wish

9 to make, if this is an appropriate opportunity to do so,

10 there seemed to be the two main themes: firstly, the

11 Gazelle 6 flight; then secondly, the unexplained

12 soldiers' movements, which really boils down to the

13 unexplained McStravicks' sighting. On the Gazelle 6

14 flight, I submit that there is no basis upon which this

15 Inquiry could find there had been any collusion by any

16 MoD personnel whatsoever.

17 We have looked exhaustively in my submission at that

18 as a hypothetical possibility by persons in the

19 helicopter, or by persons on the ground, by such persons

20 acting collectively or individually, and there is no

21 evidence on which any such finding could be made. And

22 as a matter of logic, standing back from this and

23 looking at what must have been a plot by a number of

24 conspirators -- you heard some submissions to that

25 effect this morning -- the placing of a device under

 

 

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1 a car in the manner which occurred in this case is sadly

2 far from being a unique modus operandi over the years of

3 troubles. It is a modus operandi that does not require

4 helicopter cover and did not, in my submission, require

5 helicopter cover at the planning stage in this case.

6 And on all of the evidence that you have heard, it did

7 not use or involve any helicopter cover or assistance.

8 Then finally, turning to the McStravicks and the

9 unexplained checkpoint, there is clearly the possibility

10 that they were mistaken in what they say that they saw,

11 and one or two points I would make in that regard are,

12 firstly, their evidence should be approached as being

13 a collective memory of three individuals. It does not,

14 in my submission, carry very much greater weight than if

15 there had been one of them giving that evidence because

16 obviously all three of them were in the car together and

17 would no doubt have thought about what they had seen and

18 so forth.

19 So it clearly is evidence to be taken seriously, but

20 it is not greatly magnified in weight or credibility by

21 the fact that all three of them give it. That's the

22 first point that I would make.

23 THE CHAIRMAN: Is it possible that the McStravicks are right

24 and what they saw was a lawful activity by a group of

25 soldiers that was not properly recorded?

 

 

112

 

1 MR MAXWELL-SCOTT: That's certainly a possibility and that

2 seems to have been a possibility that Mr Provoost

3 explored and listed in his witness statement, as we saw

4 this morning, as one of three possibilities that he

5 looked at.

6 On their own account this would have been a short

7 and uneventful incident because they were not searched

8 and it is not entirely clear whether they were in fact

9 stopped at all. I think in their original witness

10 statement two out of the three persons in the car say

11 that they were not stopped, and one of them says that

12 they were stopped. There were two cars in front. There

13 was a short delay and then they were off moving again.

14 None of them thought that those who stopped them acted

15 in any way out of the ordinary or in any way that was

16 particularly memorable. So that does create an

17 increased possibility that they might be mistaken

18 because they aren't remembering anything that struck

19 them at the time as being particularly important or

20 significant or particularly lengthy and unpleasant.

21 And it is also of course of relevance that the

22 Murder Investigation Team did attempt to find other

23 motorists who might be able to corroborate the account

24 that the McStravicks gave, and those attempts were

25 unsuccessful.

 

 

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1 At the end of the day, although it is understandably

2 frustrating, and it was frustrating to Judge Cory, in my

3 submission all that can be said about this is that it

4 cannot be explained.

5 Sir, unless I can assist further, those are my

6 submissions.

7 THE CHAIRMAN: We are very grateful, Mr Maxwell-Scott.

8 Thank you very much.

9 We will adjourn until tomorrow morning at quarter

10 past ten.

11 (3.43 pm)

12 (The Inquiry adjourned until 10.15 am the following day)

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4 Closing submissions by MR GRIFFIN ................ 39

5 Questions from THE PANEL ......................... 71

6 Closing submissions by ........................... 87
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