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Full Hearings

Hearing: 3rd March 2009, day 118

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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 Tuesday, 3 March 2009
commencing at 10.15 am


Day 118

 

 

 

 

 

 

 


 

1 Tuesday, 3 March 2009

2 (10.15 am)

3 MR ROBERT AYLING (continued)

4 Questions by MR PHILLIPS (continued)

5 THE CHAIRMAN: Yes, Mr Phillips?

6 MR PHILLIPS: Sir, I promised yesterday to make the usual

7 announcement in relation to the closed hearing, having

8 spoken to Mr Egan. I have now done that and I can say,

9 as it were, on both our behalfs that the matters to be

10 covered will be sensitive matters concerning sources of

11 intelligence and methodology.

12 Now, Mr Ayling, before we move on the next topic,

13 what I would like to do first with you, please, is to

14 identify the graph that you mentioned yesterday in

15 relation to actions and the impact as you see it, at any

16 rate, of Operation George. Can we look, please, at

17 RNI-916-033 (displayed)?

18 Is that the graph you were talking about yesterday?

19 A. Yes, it is, and my hope was that it provides a more

20 accurate picture of what was going on between the

21 traditional murder investigation and those actions that

22 were in support of gathering the evidence to prosecute

23 the defendants for other offences.

24 Q. Thank you. Now, because we are not using the colour

25 facility, or apparently not, it is quite difficult -- it

 

 

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1 is probably my fault -- to see which of the lines are

2 which.

3 A. Yes, it is unfortunate that it is not in colour, but the

4 trend that starts at the top of the graph on the

5 left-hand side and continues downwards is what we would

6 call the traditional murder investigation actions.

7 Q. Yes.

8 A. And you can see the trend being downwards, which is in

9 support of the point that Mr Port made, that as these

10 lines of enquiry come to a -- they exhaust their -- the

11 further work that has to be done on them, the trend is

12 downwards. And the other line that starts low and then

13 takes off in the period between July and September 2000

14 and October/December 2000, that indicates the increasing

15 activity by measuring the number of actions that are

16 taking place to support the obtaining of evidence for

17 other terrorist offences.

18 And the point I was making yesterday, that the

19 traditional murder investigation -- there are no new

20 lines of enquiry that would suggest that there is

21 resources and energy in that side of the investigation

22 that would cause that line to at least move in an upward

23 direction at some point rather than continue downward as

24 it does.

25 Q. Yes, it looks as though there is a brief flurry or

 

 

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1 increase of activity, doesn't there, between the second

2 and third quarters of 2001 on the traditional actions,

3 I mean?

4 A. Yes.

5 Q. And then, as you say, the trend resumes with another

6 shallower increase through the first three quarters of

7 2002 before going down again?

8 A. Yes, as we extend through 2002, one of the explanations

9 for that, as some of the internal reviews that the

10 murder investigation undertook, looking again -- you can

11 see at that point the actions to support the other

12 terrorist offences has now come down to a low level and

13 some of the resources are now being used in the internal

14 reviews.

15 Q. Right.

16 A. I hope that better illustrates than the bare table of

17 figures in my report.

18 Q. Thank you. Now, are there any other matters you wish to

19 clarify before we move on?

20 A. Yes, there are, if I can, please. There were two

21 matters in my evidence yesterday that I would seek to

22 clarify in the interests of fairness. The first one is

23 in relation to the similar devices questions that I was

24 asked, and if I may point to the page in my report,

25 which is RNI-604-018.

 

 

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1 Q. Can we have that on the screen, please (displayed)?

2 Thank you.

3 A. At paragraph 4.15.4, what I should have said yesterday

4 was that Dr Murray had indicated that the device

5 discovered at Maghaberry Prison was similar.

6 I regrettably, incorrectly, added the word "closest"

7 yesterday and I wish to correct it.

8 Dr Murray did not say it was the closest device to

9 the one that had been used to the under-vehicle

10 improvised explosive device that was used in

11 Rosemary Nelson's murder.

12 Q. Thank you.

13 A. He said it was similar, not closest. So my apologies

14 for that.

15 The second item that I would like to correct was in

16 relation to the magnets.

17 Q. Yes.

18 A. Could I draw your attention to my report at RNI-608-124

19 (displayed)?

20 Q. Thank.

21 A. I said in my evidence, when we were discussing the

22 forensic work that had been done to compare the magnets

23 with the cutter rail, that there was no physical match

24 and I think it was possible to misinterpret my statement

25 by suggesting that that meant the magnets did not come

 

 

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1 from that rail. I would wish to correct that.

2 I acknowledge, of course, that the forensic evidence

3 that suggests that there is no physical match does not

4 mean that the magnets did not come from that rail. And

5 I think that clarification is necessary because the next

6 question that you asked me, Mr Phillips, was to comment

7 on M540's observation that even to a layman it looked as

8 if the magnets had come from that rail.

9 So I think in fairness to M540's view, whilst

10 I stand by the point I made that you should exercise

11 considerable caution if you wish to set aside the view

12 of the forensic scientist, I think nevertheless with

13 that clarification it does contextualise my comments in

14 relation to what M540 had said about the layman's eye.

15 Q. Thank you very much. Now, can we move to the suspect

16 management topic; scrutiny of other suspects is,

17 I think, the way it is put in the letter of 12 January.

18 What I would like to do, please, is to start with the

19 relevant passage of your report. Chapter 9 is the

20 chapter on suspect management and I would like to start

21 at 9.3, RNI-609-003 (displayed), where you have an

22 overview. And there you say at the outset that there

23 was a category on HOLMES of suspects which reached

24 a total of 85 named individuals.

25 If you turn the page, please, you then refer to the

 

 

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1 relevant guidance, which we will look at in a little

2 more detail in a moment, and after setting out your

3 findings in relation to what was on the HOLMES account,

4 you go on at 9.3.4 to deal with what you say there is

5 normal practice, and that involves the TIE process.

6 What I would like to ask you to do, please, is to

7 explain as simply as you can what the TIE process is?

8 A. Yes, TIE stands for trace, implicate and eliminate.

9 Actually in 1998, the TIE stood for trace, interview and

10 eliminate, but it later became to be accepted that

11 trace, implicate, eliminate was perhaps a better

12 description. It really is having a structured approach

13 to make investigations into that particular suspect with

14 a view of implicating them in the offence which is under

15 investigation or, indeed, eliminating them.

16 Q. And as I understand it, one of the key findings you make

17 in this part of the report is at the end of this

18 paragraph, where you simply say:

19 "The MIT did not use the TIE process."

20 A. That's correct.

21 Q. Now, what was, in your view at least, the effect of the

22 fact that they did not use the TIE process?

23 A. Well, in relation to the capability of the HOLMES

24 architecture to be used to support the process of

25 tracing, implicating or eliminating, I do not have

 

 

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1 a particular criticism that they didn't use it. In the

2 circumstances, I accept that it wasn't particularly user

3 friendly for their purpose.

4 Q. Is that because of the sheer range of individuals that

5 they had to consider?

6 A. I think it is more in the acknowledgment that it would

7 be very difficult in the circumstances to completely

8 eliminate anybody from involvement in such an offence

9 where the conspiracy may range quite widely. The

10 particular categories on HOLMES do not lend themselves

11 for use in this manner.

12 Q. Right.

13 A. But nevertheless, it is very clear -- and I think the

14 guidance in the Murder Investigation Manual is very

15 clear -- that it is important to have a structure in

16 order to manage how suspects are dealt with. That

17 structure needs, of course, to pay attention to how they

18 are going to be dealt with by way of investigation, with

19 a view to implicating or eliminating them. And the

20 conclusion of the assessment team is that no such

21 structure was evident.

22 The consequence for that is that, of the 85 persons

23 who were named as suspects, with a few exceptions it is

24 not possible, even today, to properly ascertain what was

25 the current status of a particular suspect is, whether

 

 

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1 they are still considered to be a suspect for active

2 investigation, whether there is no intention of making

3 further enquiries into them. That can't be determined.

4 I would say in addition there were clearly people

5 that the investigation team considered as suspects that

6 weren't on that list of 85. So it is quite a confusing

7 and uncertain picture because of a lack of proper

8 structure in how they were dealt with.

9 Q. Now, can we just turn the page to RNI-609-005

10 (displayed), and paragraph 9.3.6? Because as I

11 understand it -- please tell me if I'm wrong -- this is

12 where you effectively link the specific point you are

13 making about management of suspects in this case with

14 the much broader point that you outlined yesterday about

15 keeping an open mind and exploring other possibilities

16 and hypotheses.

17 A. Indeed, yes.

18 Q. So, again, just coming back to a theme we picked up on

19 a number of occasions yesterday, are you saying that

20 this is more than a mere matter of filling out the right

21 forms, making sure that you have done the right thing on

22 the computer, that you see it as closely linked to this

23 much more general issue in the investigation?

24 A. Yes, I think it goes to the heart of the good management

25 of the investigation. It should be possible at any

 

 

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1 period of time to be able to tell who the suspects were

2 and what the current situation was in respect of

3 implicating them or eliminating them in the offence, and

4 I am afraid, due to the lack of documentary evidence, it

5 has not been possible to do that. And I add again that

6 even today it would not be possible to determine the

7 current status of many of the suspects based on an

8 examination of the documentation.

9 Q. Then finally on this, can I ask you: as I understand it,

10 the criticisms you make are not just of the way, as it

11 were, the HOLMES system and the TIE approach was not

12 followed, but also that in the place you would expect

13 it, namely the policy file -- this is 9.3.8 -- you don't

14 see the criteria set out, as you expected to have seen

15 for nominating a suspect, for prioritisation within the

16 category of the suspects and then, at the other end, for

17 elimination?

18 A. That's correct, there is no policy file entries in that

19 respect.

20 Q. Now, can we look next at the guidance -- and that's at

21 RNI-616-475 (displayed) -- so that everybody, as it

22 were, has it in mind. As I understand it, this is the

23 relevant part of the manual dealing with the TIE

24 process. Is that correct?

25 A. Yes.

 

 

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1 Q. Now, can I just ask you to comment on a number of the

2 points that were made under this heading by the SMT

3 during evidence.

4 Mr Kinkaid said that these systems, the systems that

5 you have been telling us about, were of little

6 assistance in relation to a terrorist investigation like

7 this one precisely because of the point that I think you

8 have acknowledged, that different and broader suspect

9 lists would of necessity have to be involved.

10 Now, what is the answer to that point, about this

11 particular investigation?

12 A. I think I have gone some way to acknowledge an empathy

13 with the view that Mr Kinkaid has expressed by agreeing

14 that the use of the HOLMES elimination criteria is

15 unhelpful. Could I perhaps take us back to the first

16 page on the suspect enquiries, which is two pages

17 earlier? I'm sorry --

18 Q. Not at all. Do you mean RNI-616-473?

19 A. Possibly, but, I am sorry, I don't have the numbers on

20 my --

21 Q. Yes, let's try RNI-616-473 (displayed). Is that it?

22 A. Yes, this is the page. I think what I'm wanting to say

23 is in the second paragraph, which says:

24 "From the very start of the investigation, the SIO

25 should put in place a suspect validation and elimination

 

 

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1 regime."

2 I'm not saying that they are required to use

3 a system that is clearly not best suited to their

4 purpose, but when you are going to handle a large number

5 of suspects, the point is that you need to have a regime

6 in which to manage it. There is no set regime that the

7 guidance points you to. What it is saying is that you

8 must approach this in a very structured way. You must

9 have a justification for nominating a suspect and that

10 justification should be a matter of record in the policy

11 file, and you should -- once a suspect has been

12 nominated, you should be able to be clear about what is

13 the criteria for eliminating them.

14 Now, I do accept that some of the points that

15 Mr Kinkaid made, that clearly in an offence of this

16 nature it would perhaps not be possible to be to

17 completely eliminate somebody, but that doesn't mean to

18 say that you can't devise a criteria that guides you to

19 what you believe the current status of that person is.

20 Q. Now, so far as the system that he told us was in use, he

21 mentioned, as you no doubt remember, that he would use

22 officers' reports to eliminate suspects and, as it were,

23 sign the form to eliminate a suspect after -- I think he

24 said after liaison with Mr Port. And in terms of

25 informing his team as to the status of suspects, he

 

 

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1 referred to the system of meetings and conversations,

2 informal conversations.

3 Now, you have already conceded that there is no one

4 correct approach. Wasn't that a perfectly valid

5 approach for him to take in the particular circumstances

6 of this case?

7 A. I think the dangers to that approach is that it lacks

8 clarity. It is important that all persons currently

9 working on the investigation understand what the current

10 status is of anybody considered a suspect, and

11 importantly too, that a record exists so that new people

12 joining the investigation team, which inevitably happens

13 over time, understand who the suspects were, what was

14 done to implicate or eliminate them and what the current

15 state of that suspect is, whether they are still under

16 active investigation or whether they have been set

17 aside. I use "set aside" rather than "eliminate"

18 because of the earlier comments I have made about the

19 difficulty of completely eliminating somebody.

20 Q. But what of this point? One can see from your point of

21 view, assessing the investigation many years later, that

22 the absence of the sort of structures you have been

23 referring to is a significant problem, a significant

24 issue, but what in your view was the impact on the

25 investigation itself?

 

 

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1 A. I think there is a danger that there is confusion as to

2 what the current status of anybody who came into their

3 suspect category was at any stage in the investigation.

4 Now, I say that because with 85 persons in a suspect

5 list and suspects who undoubtedly were treated as such

6 by the Murder Investigation Team not being in that list,

7 I think there is a recipe for confusion within the team.

8 There is no clarity about who has been eliminated. I do

9 accept that there are some examples where the Murder

10 Investigation Team have eliminated people, but they are

11 few in number when you look at the 85 listed and the

12 additional people that they clearly treated as suspects

13 but are not on that list.

14 Q. But are you able to point, or have you been able in your

15 report to point to any clear indication that this

16 confusion made an actual impact, actually made

17 a difference?

18 A. I think I mention in the report that there are various

19 suspect lists.

20 Q. Yes.

21 A. With different names on it. It is difficult to know at

22 any one time which list was the relevant one to indicate

23 who the suspects were. I acknowledge that many of those

24 lists are for different purposes, but the picture is

25 a confusing one. From the documentary trail, it is

 

 

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1 unclear. I think there is a high probability that it

2 would have been unclear to many people at the time. Of

3 course, there is a limit to how I can be certain of that

4 through only looking at documents.

5 Q. Now, in that connection, picking up the point you have

6 just made, I think it is right to say that it was

7 Mr Provoost to indicated in one of his statements --

8 I think not the due diligence one, the obstruction

9 statement -- that they created, I think it is

10 262 suspect profiles.

11 Now, is that in your view indicative of the rather

12 unstructured approach that you are referring to?

13 A. No, I don't think it is a demonstration of the

14 unstructured approach in that respect. I think it is

15 a perfectly proper course of action, that when a person

16 comes to the attention of the Murder Investigation Team

17 and, let's say, for example, we call them a person of

18 interest, they are recorded on the computer system so

19 there is a reference to them, what we call a nominal on

20 the computer system, and then when, as in this case, you

21 have an intelligence cell running, you pass that person

22 into the Intelligence Cell to do what we could describe

23 perhaps as desk top research.

24 You could look at all the databases, particular any

25 intelligence databases, to build a profile on that

 

 

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1 particular individual and then, once that profile has

2 been built, it is clearly a matter for the senior

3 management team and the SIO in particular to make

4 a decision at that point, whether the person is to be

5 nominated as a suspect. And here, I say, this is where

6 the SIO would be obliged to justify in terms of an audit

7 trail as to why that person had been nominated as

8 a suspect and what was going to be further done in

9 respect of probative endeavour to implicate or eliminate

10 them in the crime.

11 So I acknowledge that if 262 is the correct

12 figure -- and it sounds about right -- that it was

13 appropriate to do that desk top research, but it is the

14 next stage that is of concern. What happens after that

15 desk top research? There are indications, or perhaps I

16 should put it the other way round: there are not

17 indications in the documentary evidence trail as to what

18 happened to a person after they had been profiled in

19 terms of the work done in the Intelligence Cell.

20 Q. Thank you. Now, can I just finally look with you at the

21 section of chapter 14 of your report where you address

22 this, and it begins at RNI-614-060 (displayed). And

23 under the heading of "Suspect Management" in the first

24 paragraph, you summarise the various points that you we

25 saw earlier in chapter 9 and that you have just been

 

 

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1 enlarging upon. Then in the next paragraph, you refer

2 to the point I touched on in particular with Mr Port in

3 his evidence, namely the extent to which -- if we turn

4 over the page, please, to RNI-614-061 (displayed) -- he

5 shared his views on these matters with the NGOs. And

6 there is substantial quotation that takes us to

7 RNI-614-063, if we could go to that, please (displayed).

8 Thank you.

9 As I understand it, the short point you make here,

10 Mr Ayling, is that you have gleaned more from the notes

11 made by the NGOs of the status of various individuals,

12 albeit their names have been redacted on the screen, as

13 suspects or otherwise in the investigation than you did

14 from the HOLMES system, from the policy file or from

15 other material generated by the MIT?

16 A. That's correct.

17 Q. Yes. Now, if we go down to the next paragraph, you make

18 various comments about the way those meetings were dealt

19 with by Mr Port, but I would like to move on to the next

20 page, the final page in this regard, which is where you

21 move on to, I think, a more general point about the

22 report which you think should have been made on the

23 investigation as a whole to either the Chief Constable

24 or to someone, anyway, in authority. That's 14.16.21.

25 Then to the question of reviews.

 

 

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1 So as I understand it, these two points, although

2 they are under the heading of "Suspect Management",

3 actually raise rather more general issues; is that

4 correct?

5 A. Yes, that's correct. This paragraph deals with the fact

6 that there isn't a report which would aid an

7 understanding of what the current situation was, which

8 you would expect, of course, to deal with who the

9 suspects were.

10 Q. Yes. Just going back then to 14.16.20, to RNI-614-063

11 at the bottom of the page (displayed), as I understand

12 it, from the management point of view on this topic,

13 this is really where you reach your conclusion, in the

14 last sentence of the paragraph. Is that right?

15 A. Yes, that's correct.

16 Q. And then you move to more general issues later on?

17 A. Yes.

18 Q. Now, again, can I ask you, please, in relation to this

19 specific topic and in the light of the evidence you have

20 heard, other than the various points you have already

21 made in answer to my questions, are there further

22 matters which you would like to mention by way of

23 variation or clarification of your opinion on this

24 topic, suspect management?

25 A. I think we have covered the main points.

 

 

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1 Q. Thank you. Now, so far, finally, as chapter 15 of your

2 report is concerned, in a sense what I would just like

3 to do with you is to touch on the points you are making

4 here, bearing in mind, of course, the Panel's indication

5 that there are these five particular issues about which

6 they wish to hear in your evidence.

7 Can I look first with you at 15.8.1, and that's

8 a paragraph at RNI-615-006 (displayed)? That I believe we

9 looked at yesterday. Can we have RNI-615-007 on the

10 screen as well, please (displayed)? And we looked in

11 particular at the first two bullet points.

12 Now, we are able, I think, so far as the remaining

13 bullet points are concerned, to take in the other points

14 that have been touched on in your evidence and can I ask

15 you, please, so far as those, as you put it, fundamental

16 ingredients of a murder investigation are concerned,

17 were those latter ingredients present, in your view, in

18 this investigation?

19 A. My view is that they were significantly lacking in many

20 areas of the investigation.

21 Q. Now, so far as other general conclusions are concerned,

22 can I ask you to look at 14.17.20, RNI-614-073

23 (displayed). Here, by specific reference to the

24 guidelines and guidance in the MIM and Mercer, you again

25 have this time four bullet points, and so far as we are

 

 

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1 concerned and so far as they relate to the five issues,

2 the five points, is it your view, having heard all the

3 evidence, that there were, at the end of the day,

4 significant management failures in those respects?

5 A. That is correct.

6 Q. Now, the final matter I wanted to raise with you is

7 something you deal with in this final chapter of your

8 report at 15.10.11 and page RNI-615-011 (displayed), and

9 if we could have the next page, please, RNI-615-012

10 (displayed).

11 Now, unfortunately, we are only able to focus on

12 some of the items listed there as in a sense unresolved

13 at (a) to (f), and I appreciate that that makes it

14 rather difficult for you to give a comprehensive answer,

15 but you will see that you left open an overall opinion

16 in the light of uncertainties, as you saw it, which were

17 continuing under these various headings. And, so far as

18 you are concerned, can I just ask whether there is

19 anything that you have heard and read which has given

20 the explanation or clarification that you at that point,

21 the time of your report, said was lacking?

22 A. Of course, some of the evidence I have heard has an

23 impact in these areas, but not sufficient for me to be

24 satisfied that I have all the information necessary to

25 draw conclusions in respect of them.

 

 

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1 Q. And that, as I understand it, means that at the end of

2 the day, to the extent that the Panel requires an

3 opinion from you on this issue, that you do not feel

4 able to express an opinion on what I'm going to call

5 overall due diligence. Is that correct?

6 A. Yes, that's correct. The items that are listed (a) to

7 (f), of course, in the following pages I go on to

8 discuss in more detail and set out the particular issues

9 that I feel are unresolved, and I still feel that many

10 of those issues are unresolved. I do accept that some

11 of the evidence has touched upon them.

12 Q. Yes. Now, we are now moving into new territory in terms

13 of the hearing. Normally at this point I ask the

14 witness whether there is anything he wishes to add, but

15 in this case, of course, rather than that being the end

16 of the open hearing, Mr Egan will take on from here.

17 I think I am going to give you the opportunity, before

18 Mr Egan begins his questions, to ask you whether there

19 is something that we should have covered, which we

20 haven't covered, which you would like to mention?

21 A. I think I mention in chapter 15 -- I'm thumbing through

22 it and can't actually locate it at the moment -- but

23 I think I do acknowledge that I never saw any evidence

24 to suggest other than the Murder Investigation Team were

25 fully committed and earnestly -- earnest in their

 

 

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1 endeavours to find the killers of Rosemary Nelson.

2 I wouldn't like there to be a suggestion that we saw

3 any evidence that that wasn't the case.

4 MR PHILLIPS: Thank you very much.

5 THE CHAIRMAN: Yes, Mr Egan?

6 Questions by MR EGAN

7 MR EGAN: Thank you very much. As you know, I'm going to

8 ask you questions on behalf of the Murder Investigation

9 Team, Mr Ayling.

10 A. Indeed, sir, yes.

11 Q. Before I deal with my first topic, just on that last

12 matter, the reality is, of course, that you have been

13 examining in the course of your duties in this case,

14 a massive exercise carried out by the Murder

15 Investigation Team containing a myriad number of details

16 and strands with a vast number of different leads and

17 investigations, going on throughout a number of years.

18 I mean, that's a fairly obvious point, I think; it comes

19 out from your report?

20 A. It is a very sizeable enquiry, sir, yes, which is in its

21 tenth year, almost.

22 Q. And one of the things that you have just agreed or

23 said -- forgive me -- is that, of course, in the course

24 of looking in detail at this murder investigation, you

25 have seen nothing to even make the suggestion that

 

 

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1 people weren't giving it their best, and certainly gave

2 enormous effort?

3 A. Yes, indeed, I have seen evidence that there was great

4 passion and sincerity in the commitment that members of

5 the Murder Investigation Team and particularly the

6 senior management gave.

7 Q. That is right, isn't it, because it is a feature, isn't

8 it, of the evidence of the SMT, the senior management

9 team, that although four very different people, as I'm

10 sure they would be the first to acknowledge, all showed

11 tremendous commitment to the only purpose of this

12 investigation, which was to try to find the murderers of

13 Rosemary Nelson?

14 A. I'm very happy to identify myself with that comment,

15 sir.

16 Q. And before I ask you any questions about those

17 individuals, because I will in a second, can I just ask

18 you a few short questions about your own experience and

19 the basis on which you give what is after all an expert

20 opinion. Could I ask you to look, please, at

21 RNI-617-001 (displayed), which is your CV?

22 Now, of course, the first thing that strikes us,

23 Mr Ayling, is that you haven't been a policeman since

24 2004. Is that right?

25 A. Yes, that's right.

 

 

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1 Q. But before that you had extensive experience at

2 policing. But what I want to do is just examine with

3 you, please, how much of that experience involved actual

4 hands-on operational policing; that is live

5 investigations, rather than, for example, experience at

6 a strategic management level, resource management.

7 Vital matters, of course -- I don't underestimate them

8 in any way -- but there is a difference, is there not?

9 A. There is a difference, yes.

10 Q. So just taking ourselves quickly through your career in

11 those circumstances, if we move to page 2, please,

12 RNI-617-002 (displayed), I think Mr Phillips asked you

13 about this yesterday. We see that you moved from

14 constable to superintendent. You had been a detective

15 officer in your junior rank; is that right?

16 A. Yes, sir.

17 Q. Yes. What was the highest detective rank you held?

18 A. In the terms constable and superintendent?

19 Q. Yes.

20 A. Superintendent.

21 Q. So you actually became a detective superintendent before

22 becoming Head of Special Branch?

23 A. I was as a constable involved in detective duties in the

24 city of Southampton. I did not serve as a detective --

25 as a sergeant, inspector or chief inspector -- and the

 

 

24

 

1 next association with detective duties was as

2 a superintendent.

3 Q. And would that have been when you became Head of

4 Special Branch?

5 A. It would, sir, yes.

6 Q. I don't think there is anything between us. One can

7 sometimes read these CVs, Mr Ayling -- and I have been,

8 to a certain extent, guessing before I ask you the

9 questions. But after a position as detective constable,

10 you next held detective rank when you became Head of

11 Special Branch, which would carry with it necessarily

12 the rank of detective superintendent, wouldn't it?

13 A. In Kent it did, sir.

14 Q. And you describe there serious and major crime

15 investigation, including homicide. Perhaps you would

16 like to tell us about the murder that you were involved

17 in as an SIO?

18 A. You would like to know about it?

19 Q. Yes, please.

20 A. In what degree of detail?

21 Q. Short detail will do, Mr Ayling. What kind of murder

22 was it?

23 A. It was the murder of a prostitute in Rochester in Kent.

24 The body had been dumped at a site that suggested it

25 wasn't the murder site. Investigations really explored

 

 

25

 

1 three hypotheses: one, that her death came about as

2 a result of her being a prostitute and association with

3 some client; one in respect of the fact that she was

4 also involved with the drug fraternity; and the third

5 because, as I recall, she was also involved in passing

6 stolen cheques in shops to obtain goods. And, indeed,

7 it was in that latter respect that the answers in

8 respect of what happened to her were found.

9 Q. How long did the investigation last?

10 A. The investigation -- I can't really remember exactly.

11 I would guess at possibly three to four months. It may

12 be longer. I really don't recall too well.

13 Q. And three to four months, was that before a suspect was

14 apprehended?

15 A. The suspect in the end was killed in a road traffic

16 accident in Belgium.

17 Q. And that's the only SIO experience you have in

18 a homicide, is it?

19 A. That's my personal only SIO experience as being in

20 command of an investigation.

21 Q. Because by the time we move on to

22 assistant chief constable, you are definitely into

23 strategic management level, are you not?

24 A. Yes.

25 Q. And, of course, moving further on, that becomes the

 

 

26

 

1 truer, as you become -- forgive me, Deputy

2 Chief Constable and Acting Chief Constable. Do you

3 happen to remember the date of the murder that you were

4 involved in?

5 A. Possibly 1990.

6 Q. Yes.

7 A. Maybe 1989.

8 Q. I'm not altogether sure how good you are on dates.

9 I think the Deal bombing was 1989. You told us it was

10 1991/1992.

11 A. It would have been post that because I moved to the

12 Crime Investigation Department after Special Branch.

13 Q. Yes, I see. And in those circumstances, Mr Ayling --

14 and it may be that I don't need to ask you very many

15 questions about this -- the proportion of your time

16 spent in command, operational policing, homicide, is

17 a very small proportion of your career, isn't it?

18 A. By command, sir, you are talking about being in charge

19 of a particular investigation?

20 Q. Yes.

21 A. That would be true. My major association with homicide

22 investigation would have been at the next level of

23 supervision, commissioning and taking account of reviews

24 of investigation, appointing senior investigating

25 officers, in fact firing senior investigating officers

 

 

27

 

1 and being responsible for the resourcing, maintenance

2 and oversight of major crime investigations, including

3 homicides.

4 Q. As the Panel, I'm sure, will be aware, you were Head of

5 CID at one time, were you not?

6 A. Yes.

7 Q. That would involve setting policy, resource management,

8 resourcing major investigations and you would be the

9 Chief Constable's principal crime adviser for everything

10 from volume crime to serious crime?

11 A. Yes.

12 Q. And as far as your experience with Special Branch is

13 concerned, I think you have acknowledged that things are

14 very different in Northern Ireland from the UK?

15 A. Yes.

16 Q. And I don't think you have suggested that that was

17 necessarily something that was of enormous assistance to

18 you when doing this exercise, or do you disagree with

19 that? I picked that up perhaps from your evidence.

20 A. I think I'd disagree with it, sir. All background

21 experience is useful and certainly I was able to draw on

22 my experience as being Head of Special Branch.

23 Many things particularly struck a chord with me,

24 particularly when Mr Kinkaid was giving his evidence

25 because our career paths, of course, have followed

 

 

28

 

1 a very similar pattern. He too eventually ended up in

2 charge of Special Branch and he was there clearly to

3 make reforms, which is the same reason that I was there.

4 Q. Yes, yet he had rather more operational police

5 experience than you, though, didn't he?

6 A. Oh, no.

7 Q. No?

8 A. Not operational experience. You are confining yourself

9 to a conduct of a murder investigations?

10 Q. Hm-mm.

11 A. He --

12 Q. Perhaps I should have been more precise, and you correct

13 me with perfect justification, but that is actually what

14 I meant.

15 A. It is true that he had more hands-on experience of

16 murder investigations in Northern Ireland. My

17 experience was more in keeping with my ACPO

18 responsibilities, which you said are at a more strategic

19 level, and clearly responsible for introducing and

20 looking at the efficiency of policy and how those

21 investigations are resourced, progressed and completed.

22 Q. And sometimes that can involve looking at systems,

23 dealing with compliance; in fact, most of the time it

24 will involve that, will it not?

25 A. Yes, I don't know about most of the time, but clearly

 

 

29

 

1 those things are important, so yes, there are -- they

2 are a significant aspect of supervision at that level.

3 Q. And of course, I don't overlook your experience

4 involving a review. Particularly you have made mention

5 yourself of the Stephen Lawrence Inquiry. Perhaps we

6 could look at RNI-617-005 (displayed).

7 Now, one of the matters that, of course, is

8 important, is it not, in relation to looking to make

9 sure that matters are complied with is accuracy. Would

10 you agree with that?

11 A. Sorry, would you rephrase the question?

12 Q. Certainly. Insofar as performing the exercise you are

13 doing for this Panel, one of the more important aspects

14 of it involves accuracy. You need to be accurate in

15 your detail, would you agree?

16 A. You need to be attending to detail, yes.

17 Q. You can agree with me, you would need to be accurate,

18 can't you, Mr Ayling?

19 A. Yes.

20 Q. Yes. And I just want to look at one of the things that

21 you say in your CV. The one I have is

22 dated February 2008. I'm looking at RNI-607-005, as

23 I think we are all are, at the bottom (displayed).

24 I think there was an earlier CV served with an earlier

25 report. That is an adaptation of it, is it?

 

 

30

 

1 A. I'm not sure, sir. That was a CV prepared for this

2 Inquiry.

3 Q. Right. There are slight differences but nothing of

4 substance. Now, down the at the bottom, it says:

5 "Sir William described Mr Ayling's Kent report into

6 the Metropolitan Police's handling of the Stephen

7 Lawrence investigation as thorough, painstaking and

8 fair."

9 A. Yes.

10 Q. Words that do indeed appear in the Stephen Lawrence

11 Report:

12 "The public inquiry made extensive use of the report

13 and none of its findings were disputed in the public

14 inquiry's report and conclusion."

15 Over the page, an endorsement from the Chairman of

16 the Police Complaints Authority, Mr Moorhouse --

17 thanking you -- and then a name that I think has been

18 mentioned in these proceedings, Professor Waddington,

19 giving you a very nice compliment there about how you

20 had survived examination by all the ablest criminal

21 counsel in the country.

22 A. Yes.

23 Q. Now, just look back over the page, would you, please, to

24 RNI-607-005 (displayed):

25 "The public inquiry made extensive use of the report

 

 

31

 

1 and none of its findings were disputed in the public

2 inquiry's report and conclusion."

3 Is that an accurate statement?

4 A. Yes, I believe so, sir, yes.

5 Q. Would you look, please, with me at RNI-916-042

6 (displayed). This is the report of the Stephen Lawrence

7 Inquiry and this is a chapter, I suggest, that you may

8 be familiar with, are you?

9 A. A chapter, sir?

10 Q. Yes, it is a chapter --

11 A. You made it available to me as a document which reminded

12 me of it. Hadn't seen it for some years.

13 Q. Yes, all right. Presumably, when the Stephen Lawrence

14 Inquiry -- forgive me, the report was published in 1999,

15 you did read about yourself, did you, Mr Ayling? People

16 usually do.

17 A. Yes.

18 Q. Yes. Now, chapter 44, as we see here, deals with

19 your -- we have lifted this off. We haven't troubled to

20 look at the complete report, but of course that can be

21 looked at if we need to and I'm sure you yourself have

22 a copy. And it sets out therein the terms of reference

23 that you were provided with, and there is some nice

24 things said about the Kent report and, indeed, about

25 you. 44.6, please:

 

 

32

 

1 "We say at once that in many respects we agree with

2 the content of the Kent report, particularly where the

3 text shows plain criticism of decisions made by senior

4 officers ..."

5 Over the page, please:

6 "... and of the family liaison and the conduct of

7 the first investigation of the murder including the

8 Parker review."

9 44.7 in bold, as it happens:

10 "We do not agree with the Kent/PCA conclusions as

11 the actions to the taken or not taken during the first

12 night, the initial response of the NPS at the scene.

13 Our reasons for our conclusions or set out in full in

14 chapter 11."

15 I'm going to trouble you with that. 44.8 -- and I'm

16 doing my best not to be overly selective here,

17 Mr Ayling -- sets out a further comment on the Kent

18 report and 44.9 -- that can be read, if need be:

19 "As to racism, we must indicate that in our view the

20 approach of the PCA Kent investigation is incomplete.

21 Many officers were asked directly whether racism had

22 an impact upon their activities in the case.

23 Predictably they replied in strong terms denying it."

24 I'm going to take the rest of this quickly because

25 I'm anxious not to take too long on what is, after all,

 

 

33

 

1 I hope, a short and very small point. There is further

2 reference to the Inquiry reports -- forgive me, the

3 Inquiry Panel's review of the Kent PCA approach to the

4 case. Please turn over to RNI-916-044 (displayed).

5 They do acknowledge, at 44.1.2, I say in fairness to

6 you, that they found the report itself and the statement

7 of interviews most useful, but gave two further areas of

8 concern. And although, at 44.15:

9 "The investigation was thorough and painstaking and

10 fair ..."

11 We do depart from PCA Kent in important respects,

12 says 44.16, referred to above.

13 Now, looking at that -- and I make it clear, I'm not

14 in any way concerned with the Inquiry Panel's view of

15 Kent's investigation. My purpose is entirely narrow, it

16 is just simply the accuracy of the statement:

17 "The public inquiry made extensive use of the report

18 and none of its findings were disputed in the public

19 inquiry's report and conclusion."

20 I repeat the question: is that an accurate

21 statement?

22 A. I think its findings are separated from its conclusions

23 and I think the public inquiry endorsed the findings.

24 In respect of the racism issue, clearly they

25 disagreed with the conclusion. But I would say this: my

 

 

34

 

1 report was a PCA-supervised investigation. When it

2 started, there was no public inquiry and no prospect of

3 a public enquiry. There was certainly nothing called

4 institutional racism.

5 Institutional racism came out of Sir

6 William MacPherson's report and recommendations. It

7 would not have been possible for me to conclude that

8 there had been institutional racism as at the time of my

9 report; it didn't exist.

10 Q. But Mr Ayling, I have specifically said I don't want to

11 examine that. All I want to examine with you is whether

12 the statement made in this CV, before the Panel, is an

13 accurate statement and it seems, does it not, that it

14 is not?

15 A. I think the statement is accurate in the spirit that it

16 is intended, and I do not accept your point.

17 Q. "None of its findings were disputed in the public

18 inquiry's report and conclusion."

19 We have just looked at the conclusion --

20 A. I make my comments, sir, in respect of the issue of

21 institutional racism, which was not open to me.

22 I think somewhere in those pages, if I recall the

23 reading of it, it goes on to say what they believed was

24 the case. It was -- I was, in the course of the

25 PCA-supervised investigation, examining police

 

 

35

 

1 discipline regulation offences, one of which related to

2 racist conduct. I found no evidence of racist conduct

3 and the public inquiry agreed with that finding.

4 They, however, in the course of their inquiry, which

5 to remind you, sir, was in two parts -- one part dealt

6 with the murder of Stephen Lawrence; the larger, second

7 part dealt with the wider question of the relationship

8 between the Metropolitan Police and the ethnic

9 community. And it was from that that they subsequently

10 devised their definition of institutional racism,

11 a definition which was later accepted and embraced by

12 the police service as a whole.

13 Q. Yes, that's a point you have made with force already.

14 But perhaps the other point, bearing in mind your

15 position as an expert witness -- surely an expert

16 witness's CV should almost be like an insurance

17 contract, utmost good faith? You should put everything

18 in this, should you not?

19 A. I think that CV is in good faith, sir. I accept the

20 criticism that you have made; it wasn't intentional or

21 intended to mislead.

22 Q. That's a rather different point and that may very well

23 be right, Mr Ayling, but the point -- and I'm going to

24 leave it here: it isn't accurate, what you say gives

25 a misleading impression?

 

 

36

 

1 A. I stick with my point that it is in principle --

2 MR EGAN: Thank you very much.

3 Can I just -- sir, I'm -- oh, no. I'm sorry, I got

4 my timing slightly wrong.

5 THE CHAIRMAN: We will have a break at about half past, at

6 a convenient moment for you to break off at about half

7 past.

8 MR EGAN: Thank you.

9 I want to ask you, please, about the question of

10 your expertise as against the members of the MIT. We

11 have already agreed, I think, that they are four

12 individuals with a quantity of different experience.

13 Would you agree with that?

14 A. Yes.

15 Q. And they worked together with a will, didn't they? We

16 can certainly agree with that?

17 A. Yes.

18 Q. And they also seemed to have got on rather well with

19 each other, which is perhaps a happy chance.

20 A. I really couldn't comment on it.

21 Q. All right.

22 A. It would appear to be the case.

23 Q. It would appear to be the case. We have heard questions

24 about dissonance between certain bodies. There

25 certainly doesn't seem to have been any between these

 

 

37

 

1 four members?

2 A. Not that has been apparent to me, sir.

3 Q. That, of course, although it doesn't make the efficiency

4 of the MIT impossible if there is disagreement, is of

5 assistance, isn't it? I mean, the old-fashioned, "a

6 happy ship is more likely to be an efficient ship"; yes?

7 A. I'm not sure that's a useful term.

8 Q. All right. It was just mine. So we will ignore it.

9 A. Okay.

10 Q. Is it your experience in operational policing that if

11 police officers get on together, they are more likely,

12 providing they are behaving properly, to work better?

13 A. As a general principle.

14 Q. And bearing in mind their experience and their

15 collective experience on two different experience

16 fields, if you like -- you have got the two RUC

17 officers, M540 and Mr Kinkaid, you have got the Greater

18 Manchester officer, Mr Provoost, and then, of course,

19 Mr Port, who has experience in a number of places --

20 that collective experience was a tremendous advantage

21 for the murder investigation of Rosemary Nelson,

22 wasn't it?

23 A. It would have been an advantage to any investigation.

24 Q. And there are some instances where you don't agree, you

25 find yourself disagreeing, with what seems to be the

 

 

38

 

1 collective view of those detective officers. I think we

2 could probably accept that, Mr Ayling. That's why I'm

3 asking you questions after all.

4 A. I think that's the case.

5 Q. Has it ever occurred to you in the course of considering

6 the criticisms you make to wonder -- to perhaps doubt

7 that maybe, if the four of them think, for example, one

8 particular thing, does it cause you to doubt your

9 opinion at all?

10 A. It doesn't, sir, because I think I have evidenced my

11 opinions in the report and I can provide that evidence

12 in support.

13 I have not heard the same evidence from the senior

14 management team. I have not seen the documentary

15 evidence. I have heard what they have said, but I have

16 not seen the evidence. And I would say in addition

17 that, of course, I never worked alone. I led a team of

18 very able people, people who could certainly match the

19 experience that you have articulated on behalf of the

20 senior management team. In fact, the police experience

21 of my team totalled 284 years; the detective experience

22 on the team totalled 173 years; the detective experience

23 at the rank of detective inspector and above totalled

24 71 years; the total number of murders of the team that

25 they investigated, 542; the total number that they were

 

 

39

 

1 either the SIO or the deputy SIO totalled 131; and the

2 total number of murder case reviews totalled 144.

3 So there was a considerable amount of experience

4 that I could draw on to formulate my report and reach my

5 conclusions.

6 Q. And as to the experience of the expert witness that I'm

7 asking questions of, what was your detective experience

8 in years?

9 A. My detective experience in years is short. My

10 experience of supervising crime activities is probably

11 one of the longest in ACPO rank terms and, I would say,

12 by no deliberate design of my career, I think through my

13 position as Head of Professional Standards and

14 undertaking many PCA-supervised investigations, I --

15 again, I repeat unintentionally on my part, I became

16 associated with examining investigations that had taken

17 place and leading a correctly skilled and structured

18 team in order to deconstruct that investigation in order

19 to reach decisions about how efficient it had been. And

20 I deliberately use the word "deconstruct" because these

21 are not reviews of crime investigations, reviews the

22 primary purpose of which is to support the SIO in the

23 investigation.

24 In the work that I have been involved in with the

25 Stephen Lawrence Inquiry, with other investigations that

 

 

40

 

1 I have done, that has primarily been the job of taking

2 them apart and examining whether they have been

3 completed to the correct and proper standard. And

4 I have always relied upon recruiting the correct

5 specialist fields in order that that can be done in the

6 most efficient and fair manner.

7 Q. So the answer to my question is you had a short time as

8 a detective yourself operationally?

9 A. Yes.

10 Q. You had been SIO in one murder. You had no -- and there

11 is no criticism of you here -- experience in

12 Northern Ireland, nor any of your team did. But I'm

13 more concerned with you, if I may say so.

14 A. No, that was a condition of the appointment.

15 Q. That's why I can't criticise.

16 A. Yes.

17 Q. But in order to try and deal with that, did you consider

18 spending any time in Northern Ireland yourself and

19 talking to RUC SIOs who worked in 1999, for example,

20 perhaps to inform yourself as to what amounted to

21 a professional terrorist investigation in

22 Northern Ireland in 1999?

23 A. I did not, and I did not feel that that was open for me

24 to do that under the terms of my appointment. And

25 furthermore, I believe that I already had a reasonable

 

 

41

 

1 working knowledge of those issues through my time on the

2 ACPO Terrorism Committee of which I was a member.

3 Q. Was that ever going to be a substitute for getting

4 hands-on experience of what RUC SIOs in 1999 -- what

5 conditions and how they approached terrorist murders,

6 Mr Ayling, in your view?

7 A. I think it is inappropriate to look at it as

8 a substitute. That option wasn't open to me.

9 I can see where your questions are going, sir, but,

10 I mean, the fact of the matter is that I was appointed

11 by this Inquiry to do a particular job: to recruit -- to

12 scope that job in terms of how it was to be approached,

13 what methodology to use, to decide how best to task

14 could be undertaken and to recruit a team with the

15 required skills to do it properly and efficiently, and I

16 am content to leave it there.

17 If I was considered the correct person by the

18 Inquiry to carry out that function and give evidence as

19 an expert witness by producing a report, then if you

20 have issues with that, sir, I can only suggest that you

21 put them to the Inquiry.

22 Q. No, but I think I might ask you whether you thought you

23 might need to bit more information yourself. You see,

24 that's what the question is going to.

25 A. I did my best to familiarise myself with the issues of

 

 

42

 

1 working in Northern Ireland and I went about that in

2 a number of ways. I do not feel it was open to me to

3 interview RUC SIOs who were working in 1999.

4 Q. Well, just let's take one example then: MIM. Did you

5 make enquiries about the Ulsterisation of MIM or were

6 you informed about that by the MIT?

7 A. The MIT kindly provided us with a number of documents.

8 Q. But that was after your first draft report, wasn't it?

9 A. Was it? You obviously know it was, sir.

10 Q. If I'm wrong, I will be corrected about that. So shall

11 we assume that it was after your first draft report?

12 A. Let's assume that.

13 Q. In those circumstances, did it not occur to you that it

14 might be an idea to make those enquiries yourself rather

15 than have to be ...?

16 A. No, it didn't, sir, and I would be very strong on this.

17 I felt and looked very carefully at what the right

18 standard should be. And I looked at the comments that

19 the RUC Chief Constable had made in terms of his

20 determination to bring the highest standards, I think at

21 some stage he commented quite publicly, and clearly he,

22 in bringing in officers as he did from England and Wales

23 police forces, those highest standards were to be found

24 in the Murder Investigation Manual.

25 Q. And finally under this heading, perhaps did it occur to

 

 

43

 

1 you to speak to community representatives to try and

2 understand the environment SIOs might be working under?

3 The Northern Ireland Office might have been able to

4 arrange that for you.

5 A. I think you can get a fair impression from a wide

6 reading on that subject, sir. I don't claim -- and

7 I think I mention that my report -- that clearly one

8 doesn't claim to be an expert on Northern Ireland

9 policing issues. But, again, I would repeat that under

10 the terms of my appointment, I did not feel that that

11 course of action would have been open to me in any

12 event.

13 THE CHAIRMAN: Would that be a convenient moment, Mr Egan?

14 MR EGAN: Yes, thank you.

15 THE CHAIRMAN: We will adjourn until a quarter to.

16 (11.29 am)

17 (Short break)

18 (11.45 am)

19 THE CHAIRMAN: Yes, Mr Egan?

20 MR EGAN: Thank you. Mr Ayling, I now want to ask you about

21 the type of murder it was. Could we look at your

22 report, please, at paragraph 155, RNI-601-019, please

23 (displayed).

24 Could we highlight 155? And we see that -- this is

25 the start of your report:

 

 

44

 

1 "The AT has sought to apply the relevant standards

2 ..."

3 I'm concerned with the last sentence:

4 "The [assessment team] has made every attempt to

5 strike a reasonable balance and have regard to what

6 would constitute a reasonable and effective

7 investigation in the circumstances and context of this

8 high profile terrorist crime committed in

9 Northern Ireland almost one year after the signing of

10 the Good Friday Agreement."

11 Now, does it follow, Mr Ayling, that the one thing

12 at least we will be able to agree about in the course of

13 my questioning of you is that we are dealing with a high

14 profile terrorist crime?

15 A. Yes, I think we can agree that, Mr Egan.

16 Q. So really, the question in those circumstances -- we can

17 put all aside hypotheses to one side just for

18 a second -- it is a question of which terrorist

19 committed it, is it?

20 A. That would be at the heart of it.

21 Q. Yes. And to that extent, does it follow that you would

22 concede that if the MIT did not spend very much time on

23 investigating the concept of it being a non-terrorist

24 crime, they could not be criticised?

25 A. I would think that it would be part of keeping an open

 

 

45

 

1 mind, to consider those issues, but I'm accepting your

2 premise, Mr Egan, that this, to all intents and purposes

3 was a high profile terrorist crime.

4 Q. It is not my premise, actually. It looks to be your

5 premise, sir, that's the point.

6 A. Yes.

7 Q. In those circumstances, what one needs to do is to

8 investigate, as an investigating officer, to go where

9 the evidence and the intelligence is in order to find

10 out who committed this rotten murder; yes?

11 A. That's not a phrase I'm completely comfortable with, but

12 I'm happy to agree it for the purpose.

13 Q. Yes, all right. I won't ask you any more about that.

14 Dealing with the Murder Investigation Manual, of

15 course, we have your evidence on that. I just want to

16 ask you one or two questions about how useful it will be

17 when considering terrorist crime. You gave evidence

18 about this yesterday, I think, and I think that your

19 view was that it was sufficiently flexible. One

20 individual who appears in the cast list at the back --

21 I put it crudely, but I think you know what I mean --

22 was a superintendent in the terrorist branch. So it

23 certainly had something to officer the investigation;

24 that's my note of your evidence?

25 A. I think he was a detective chief superintendent.

 

 

46

 

1 Q. Forgive me. And sorry to him as well.

2 Now, in relation to the actual 1998 version of MIM,

3 the amount of reference to terrorists or, indeed,

4 terrorism is very, very slim indeed, is it not?

5 A. No.

6 Q. Isn't it?

7 A. No.

8 Q. Oh. Shall we look at where it is mentioned then?

9 A. Yes.

10 Q. Yes. Would you look, please, at RNI-616-295

11 (displayed):

12 Murders committed by terrorists come under five, the

13 word "Conviction":

14 "Murders committed by terrorists who are dedicated

15 to a cause, mentally ill, under instruction from inner

16 voices, or by offenders with a hatred of a particular

17 group, for example, prostitutes, homosexuals or certain

18 ethnic groups."

19 Yes?

20 A. Yes, that's under the motives section, isn't it?

21 Q. Yes. RNI-616-444 (displayed), two references here of

22 the word, at any rate, "terrorist" and "terrorism" under

23 "Wanted Posters":

24 "If proceedings are active, avoid implications of

25 guilt in wording of poster. For example, avoid words

 

 

47

 

1 'wanted terrorists' or 'wanted for questioning about

2 terrorist offences'."

3 Yes?

4 A. Are we counting that as one or two references to

5 terrorism?

6 Q. I will tell you what, we will count it as two,

7 Mr Ayling.

8 A. Okay.

9 Q. And the last one, RNI-616-454 (displayed). This is

10 under "Disclosure":

11 "The disclosure officer is one of three specific

12 roles in any major crime investigation. The disclosure

13 officer must comply with the codes of practice and

14 provisions of the aforementioned Act. Furthermore..."

15 It refers there to the fact that:

16 "The rank will vary from force to force, but in

17 terrorism cases, for example, a detective sergeant may

18 be considered."

19 A. Yes, we are up to four and you said that was the last

20 one, Mr Egan.

21 Q. I thought it was, Mr Ayling. Are you going to

22 correct me?

23 A. I counted ten, but unfortunately not being aware of your

24 question, I can't take you to the other six references.

25 But there were, in my view, ten references to terrorism,

 

 

48

 

1 which is rather interesting because the most common type

2 of murder, of course, is the domestic murder that

3 happens in a domestic environment and there are actually

4 only three references to domestic murders in the Murder

5 Investigation Manual, which is the most common type.

6 So contrasting the most common type, three, with

7 terrorist murders on your count, four, on my count of

8 ten I think tells its own story.

9 Q. But terrorist murders are rather different, aren't they,

10 to other types of murders?

11 A. Clearly there are many common issues between them, but

12 there are many differences.

13 Q. Let me give you an example for you to consider of what

14 is a real distinction in a terrorism murder,

15 particularly a security-related murder in

16 Northern Ireland. It will often, in fact almost always,

17 be committed by a number of people. Would you agree

18 with that?

19 A. Again, I think as a general principle I would agree with

20 it, but I would think there are exceptions.

21 Q. I suppose there will always be an exception somewhere,

22 Mr Ayling, for everything. But by and large, you are

23 almost always dealing with conspiracy to murder, aren't

24 you?

25 A. To a large extent you would be.

 

 

49

 

1 Q. And a good example of that might be a straightforward

2 shooting -- although it is as awful as any other death,

3 of course -- but a straightforward shooting by

4 a paramilitary organisation, you will know, I presume,

5 that it could involve a number of people?

6 A. Yes, indeed. And I think that's behind my agreement

7 that it is often very difficult to eliminate anybody

8 from a terrorist murder.

9 Q. And we may need to look at that when we consider this

10 afternoon your final remarks about suspects, et cetera,

11 because it is almost inevitable, isn't it, with an

12 unsolved terrorist murder like this, that the suspects

13 who remain live will be high in number?

14 A. Not necessarily. Clearly, the object of having

15 a structured approach to managing suspects is so that

16 you can prioritise your investigatory effort, and it

17 would still be necessary to do that, in fact even more

18 necessary if they were high in number.

19 Q. Now, dealing with MIM at any rate, and you make the

20 point that terrorism is at least mentioned four times --

21 A. You mentioned four, sir. I'm sticking with ten.

22 Q. Oh, right, sorry, yes. Yes, all right. We will see if

23 you are right about that -- four or three, in my view;

24 you say ten.

25 You accepted yesterday you wouldn't be asking for

 

 

50

 

1 a rigid adherence to MIM. A concession, I suppose; yes?

2 A. It is a manual of guidance, sir. It is a manual of

3 accumulated best practice.

4 Q. And generally are you aware of a concept which has,

5 I think, maybe floating around, or it was referred to by

6 Mr Port last week in his evidence, as the tyranny of

7 manuals. Have you heard that expression?

8 A. Hadn't heard it until your disclosed material.

9 Q. Yes. Would you look, please, at a report called the

10 Sumac Report? A strategic debrief, at RNI-916-014,

11 please. I have got a sinking feeling that the title on

12 this will be very, very faint indeed. We will see that

13 a good copy of this is given. It is just faint in the

14 title. It says "The Tyranny of Manuals". You can just

15 about see that, I think. And you have obviously had

16 time to read it. It points out, obviously, "Tyranny of

17 Manuals" is a rather emotive title, I suppose some might

18 call it, and it refers to ticking boxes. And in fact,

19 Mr Phillips asked you a number of questions about

20 that -- I'm not going to go over that.

21 I'm just wondering whether you think there is

22 anything in this or whether you have any comment to pass

23 upon it?

24 A. I don't think there is anything in it, sir. I could

25 comment. To what extent would you like me to comment?

 

 

51

 

1 You said I have had time to read it. I have been able

2 to read it. I saw this comment and it struck me on my

3 reading of it that it doesn't seem to single out the

4 Murder Investigation Manual for particular criticism; in

5 fact, elsewhere in the report I think there are four

6 references to the Murder Investigation Manual as

7 recommended further reading. And it also, I think,

8 comes from that comment that it wasn't the view of

9 everybody, it was the view of some, in a debrief.

10 I also noted that last week saw the publication by

11 the IPCC of one of their latest investigations, which

12 received a great deal of publicity, regarding their

13 investigation into the Steven Lubbock (sic) murder in

14 Essex and I noted with interest that in their

15 investigation they had said that they had used, as the

16 benchmark for their investigation, the Murder

17 Investigation Manual.

18 So I believe the Murder Investigation Manual has

19 great currency, and I do not believe there is anything

20 in this report and in this particular paragraph that

21 detracts from that.

22 Q. The phrase I would draw to your attention before we

23 leave it, just for your comment, please, is the phrase

24 "valuing compliance above effectiveness"?

25 A. Could it be highlighted, sir?

 

 

52

 

1 Q. Could you highlight that, please? It goes:

2 "That they are inflexible led to a tick box

3 mentality which valued compliance above effectiveness."

4 Do you see that?

5 A. I'm just looking for it. Yes.

6 This is contrasting the two conflicting views. It

7 is not quite there for us to see, but those who valued

8 the support of the material, and that was contrasted

9 from those who said that they were inflexible and led to

10 a tick box mentality.

11 But, again, there is no indication that in those

12 comments they were referring to the Murder Investigation

13 Manual and there is no suggestion on my part that, you

14 know, it lends itself to a tick box mentality. It is

15 a manual of accumulated best practice and it would seem

16 to me that as such it would be a place to go to in order

17 to ensure that you could have some confidence that what

18 you were doing complied with best practice or, if you

19 were to depart from it, that you could justify that

20 departure.

21 Q. Would you agree that maybe a sensible way for, for

22 example, a Northern Irish officer to view that, just as

23 an example, would be to read the MIM in 1999, say, and

24 to seek to try and pick up as much as was useful to him

25 from it?

 

 

53

 

1 A. Well, I think I would require a little more than that.

2 The adoption by the RUC of the Murder Investigation

3 Manual, as we both know, was a little later. But I did

4 note already in the documentation that the MIT kindly

5 supplied to me about the Ulsterisation were some, of

6 course, very complimentary comments from the RUC

7 training department, which went along the lines of, you

8 know, this is an excellent manual, the sooner we can

9 make it available, the better. And the Ulsterisation

10 issue was deemed, in the training department's view, to

11 be quite low. It required some changes in respect of

12 the prosecution authority -- I think it referred to the

13 Crown Prosecution Service, which was different -- and in

14 a number of other respects, but essentially the thrust

15 was that this was a very valuable manual.

16 I think one of the unfortunate things was, of

17 course, the second edition came along and, quite

18 sensibly, those who had the responsibility to put it

19 into practice, said, "Well, let's look for the second

20 edition. Why would we go to all that trouble with the

21 first edition, when the second is following so close?"

22 Q. Putting those comments about the theory of it, if I may

23 say so, aside, let's deal with the actuality, shall we?

24 Look at RNI-616-779 (displayed). Could you highlight

25 "Policy decision PL28", please?

 

 

54

 

1 Now, I would like you to look at this with me,

2 please, because it comes under the heading of

3 "Victimology", which I don't intend to deal with quite

4 yet. But it also deals with the MIM manual and I would

5 like you to look at it, please, in a little detail. Are

6 you familiar with this particular entry?

7 A. I have seen it before, sir, yes.

8 Q. Yes. Would you agree with me it could be seen and, I'm

9 sure, read very quickly -- I'm not going to read it into

10 the record. Would you agree with me that it is a very

11 important entry?

12 A. As a policy file entry, yes.

13 Q. Yes. Because it is an entry by the SIO, the RUC SIO on

14 20 March, that he intended to begin -- well, let's read

15 it:

16 "Family members and workmates should be approached

17 in a coordinated manner. Then, where possible, this

18 should be initiated by a meeting with such persons

19 involving the SIO and FBI representatives.

20 "Reasons: to advise such persons on our role and

21 independence; to develop an assessment of the victim as

22 per the sections of victimology at page 30 of the Murder

23 Investigation Manual ..."

24 I'm not going to ask for that to be turned up just

25 at present:

 

 

55

 

1 "... to gather evidence on threats and collusion."

2 And it is dated on the 21st, when it is signed off

3 by Mr Kinkaid.

4 Now, you heard the evidence the week before last,

5 I think, of Mr Humphreys, et cetera, who was involved in

6 the MIM manual and he gave evidence, and Mr Kinkaid,

7 obviously received a copy of manual because he obviously

8 read it, didn't he?

9 A. I remember Mr Kinkaid's evidence and I think that he

10 indicated that he was rather busy, understandably, to

11 start with, but eventually he got round to reading it.

12 Q. Yes. Well, I mean, never mind about what people say

13 now, Mr Ayling. It is always better, isn't it, to see

14 what they were saying at the time? He has read page 30,

15 hasn't he, on 21 March and he is doing his best to

16 apply it?

17 A. I refer to this in my report.

18 Q. Where, please?

19 A. Well, I was going to say that the way -- we are going to

20 have to find a way of working together on this --

21 Q. I can tell you where the reference is, Mr Ayling.

22 A. Well, if you --

23 Q. You refer to it under "Family Liaison" at

24 paragraph 7.6.4, if we look at RNI-607-011 (displayed).

25 Blow that up, please. This is, of course, not in the

 

 

56

 

1 victimology chapter. I'll ask you about that in

2 a second:

3 "At a conference meeting, the SIO informed MIT

4 officers ..."

5 And this is under the heading of, of course, seven,

6 as we are all familiar with, significant witnesses:

7 "... instructed them to refrain from contact with

8 family members as all such contact would be taken in

9 a coordinated manner. On the same day an attempt was

10 made through [blank] to set up a meeting with Mr Nelson

11 involving the Kent and FBI officers. Prior to the

12 arrival of Mr Port, four further developments took

13 place."

14 Now, the number is 381 -- is a support for

15 Mr Kinkaid telling the MIT officers to refrain from

16 contact with family members as all such contact would be

17 undertaken in a coordinated fashion, isn't it?

18 A. Yes, I remember that, yes.

19 Q. Now, one might have thought -- it is credit, isn't it,

20 to Mr Kinkaid that he received, as it were -- I think

21 the expression was used by the Panel -- "from the

22 horse's mouth" the information about victimology from

23 Mr Humphreys and that he entered it into his policy

24 decision book at an early stage? There is credit to him

25 there, isn't there?

 

 

57

 

1 A. Yes, there is credit. Clearly there is an evidence

2 trail of a conversation between the Kent advisory team,

3 recorded in their log, that they discussed this with

4 Mr Kinkaid. I seem to remember that Mr Kinkaid rightly

5 drew attention to the Kent officers of some of the

6 unique difficulties that might be unique to

7 Northern Ireland --

8 Q. Indeed.

9 A. -- in pursuing this line, but he accepted in principle

10 that it was a valid line of enquiry and it is to his

11 credit that he reflected that in a policy file decision.

12 Q. Yes. And may I ask, please: why doesn't it appear in

13 the extensive chapter on victimology in your report?

14 A. Because --

15 Q. Was it irrelevant?

16 A. I'm sorry?

17 Q. Was it irrelevant?

18 A. It is not irrelevant. I think the victimology chapter

19 of the report is comprehensive and deals with the issue

20 of victimology. This is an early attempt to gain

21 background information.

22 I think we would say that in the victimology chapter

23 it exposes rather what was not done.

24 Q. Mr Ayling, that a fair way of looking at it? Isn't it

25 more than that? Isn't it the SIO doing his best to take

 

 

58

 

1 on board new instruction contained in the MIM, the

2 journal that you base so much of your report upon?

3 A. No, I think that comment is not one that I could agree

4 with.

5 Q. All right. And did you take a considered decision then,

6 sir, to leave it out of your chapter on victimology that

7 the SIO had put that entry in --

8 A. I think.

9 Q. -- and started those enquiries? I will just complete

10 that and let you finish, please.

11 A. Sorry, you have finished, have you, Mr Egan?

12 Q. Yes.

13 A. I believe my report is entirely and thoroughly fair, and

14 I believe that I have given proper due consideration and

15 credit to the senior management team and Mr Kinkaid in

16 particular in making it clear that he made that policy

17 file decision.

18 Q. Why doesn't it appear in the victimology chapter? It

19 should do, shouldn't it?

20 A. I feel that in the balance of report that it is already

21 a point that has been made in an earlier chapter.

22 Q. That's your answer, is it?

23 A. That's my answer.

24 Q. Did you take a deliberate decision to leave it out of

25 victimology?

 

 

59

 

1 A. I didn't take a deliberate decision, no.

2 Q. You see, I suggest to you for your consideration that

3 that was an important example of the SIO doing his best

4 to take on board new instruction, and common fairness

5 demanded it should have entered into your consideration

6 of the victimology question in this case. What do you

7 say to that?

8 A. I can only repeat what I have already said, sir: that I

9 have been fair and balanced in a report. I have

10 recognised in my report that this entry took place and

11 given due credit for it.

12 Q. Well, I'm not going to ask any more about that.

13 Anything else I say will be comment.

14 Can we please deal with an area now of intelligence,

15 and of course this is a difficult area, Mr Ayling, as

16 you will know, for me to deal with in open session. And

17 I mention to you -- and I hope with the approval of the

18 Panel -- that I'm going to attempt to deal with as much

19 in relation to intelligence as I can in open session.

20 Do you understand?

21 A. I do.

22 Q. But, of course, I'm going to be hampered. There must be

23 a closed session and, of course, you may find yourself

24 in a position where you can't answer questions or can't

25 give answers because the documents I show you aren't

 

 

60

 

1 full enough.

2 A. We will do our best, Mr Egan.

3 Q. Exactly. But at any rate, certainly we are going to try

4 to deal with as much of it as we can.

5 Would you look, please, at chapter 14.16.9 of your

6 report at RNI-614-058, please (displayed)? Could that

7 be highlighted? Thank you very much. Just that

8 paragraph, actually; 4.16.9 would be fine, I think.

9 Hopefully it will make it easier. Thank you.

10 You were asked about this yesterday by Mr Phillips

11 and you still maintain this as the consideration of the

12 MIT, which led to the focus upon Operation George, was

13 not documented:

14 "It would appear to be AT that three primary factors

15 were taken into account:

16 "(a) The original telephone claim of responsibility

17 allegedly made by the RHD;

18 "(b) The (redacted) intelligence received ... naming

19 suspects (the AT is of the opinion that this was the

20 most influential single factor)."

21 Yes?

22 A. Yes.

23 Q. "The linking of the UVIED that killed Rosemary Nelson to

24 other Loyalist devices."

25 Just so we are clear about this -- I'm sure your

 

 

61

 

1 evidence was very clear yesterday -- that is still your

2 view. It appears in fact on your report on a number of

3 occasions under a number of different headings, that you

4 think that's really where they were going?

5 A. A large number of occasions it is referred to, sir,

6 because I feel it is at the heart of the issue, yes.

7 Q. And one of the first issues it brings us to is the

8 question of intelligence and validation, the (redacted)

9 intelligence received from Special Branch. So could we,

10 please, remind ourselves of what that was? Could you

11 look, please, at RNI-548-045 (displayed)? A document

12 that everyone will be familiar with -- and I know you

13 are, Mr Ayling -- and I think you were also familiar

14 with what is underneath the redactions?

15 A. That would be true.

16 Q. Thank you. Could you look, please, at RNI-548-047

17 (displayed)?

18 A. Similar, sir. I'm familiar with that document and

19 what's director the redacted block -- box.

20 Q. And that's the intelligence you are referring to in that

21 paragraph, is it not?

22 A. It is, sir, yes.

23 Q. Thank you. And validation -- you said in your

24 evidence -- it is important to validate intelligence,

25 seek to validate it. Validation could be seen in two

 

 

62

 

1 parts: human, (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)?

8 A. It is.

9 Q. Thank you. And it is a permanent feature of the police

10 experience.

11 Now, you were asked some question by Mr Phillips,

12 very fairly, if I may say so, about the differences of

13 approach between Mr Kinkaid and M540, and your comment

14 on Mr Kinkaid was he was very transparent and has the

15 disadvantage if you too narrowly define the request,

16 then SB might limit what you get. That was your

17 evidence, I think, roughly?

18 A. Roughly.

19 Q. Roughly. Yes, I'm sure we can move on.

20 The approach of M540 does exploit personal

21 relationships built on trust, but there is an obvious

22 difficulty in that it is not transparent and then you

23 used the word "not auditable" and there are more

24 inherent dangers. So one was left with the two

25 approaches being effectively having various dangers. If

 

 

63

 

1 anything, I think you probably thought that there

2 were -- in fact, you undoubtedly said there were more

3 inherent dangers in the latter?

4 A. Yes.

5 Q. Yes. But we get the impression, do we, in fairness,

6 that in Northern Ireland, therefore, there is a danger

7 that you could be damned if you do and dammed if you

8 don't? If, with one hand, Mr Kinkaid's approach is

9 taken, there is the danger that you won't get enough

10 and, in fact, even the suggestion has been put to some

11 witnesses that perhaps it may have led to, as it were, a

12 narrowing of the intelligence flow. And if you take the

13 approach of M540, well, there is a danger that you won't

14 be able to audit it subsequently when someone wants to

15 see what's going on?

16 A. Well, again, it is not -- the way you put it is not how

17 I want to agree it. Clearly, I stand by my comments

18 about the dangers of both approaches, but you know,

19 I would ask this with the particular intelligence that

20 we are talking about played an active part. I mean,

21 what did that mean: played an active part? I have seen

22 no evidence to suggest what that actually translated to.

23 So it demonstrates that these corridor conversations are

24 an unsatisfactory way to go about a structured and

25 organised investigation. I have never seen a Murder

 

 

64

 

1 Investigation Team's assessment of what "played an

2 active role" meant.

3 Q. Now, I think you conceded yesterday -- I thought you

4 had, at any rate -- that a lot of it would depend on the

5 environment that you were in. If that was their

6 approach, well, one might have to work with it. Would

7 you agree with that?

8 A. You might, sir, yes. You questioned me earlier about

9 how I had gained my necessary knowledge to undertake my

10 task, and I do remember that that was a feature of my

11 reading and understanding, that very often personal

12 relationships were important in the passing of

13 information.

14 Q. Because in a perfect world, of course, one would be able

15 to validate everything and get the provenance of

16 everything. But that -- we now have the benefit of

17 hindsight, wisdom after the event -- in reality, was

18 always going to be terribly difficult, wasn't it?

19 A. It was, sir. I seem to remember elsewhere in my

20 evidence yesterday acknowledging that this case, more

21 than any other, created a precedent for access to

22 Special Branch intelligence and I certainly was at pains

23 to point out, I hope, and I'm happy to repeat it now,

24 that my views and conclusions in this respect were very

25 largely based upon the terms of reference that Mr Port

 

 

65

 

1 had been given; in particular, of course, the

2 paragraph 7.

3 Q. But, of course, we can take this quite quickly, can't

4 we, because there has been a raft of evidence about it?

5 Mr Port's efforts to obtain as much as he could really

6 couldn't be faulted, could they?

7 A. I'm still unclear as to how all those efforts were

8 progressed from my understanding when I wrote my report

9 and from hearing Mr Port's evidence, it must be said.

10 And I think I clarified that yesterday (redacted)

11 (redacted)

12 (redacted)

13 (redacted).

14 I am less clear, Mr Egan, in terms of being

15 satisfied that he enquired into the content of the

16 intelligence.

17 Q. Well, I wasn't --

18 A. As I have said, just to repeat, I have never seen

19 a Murder Investigation Team assessment of the content of

20 that early intelligence to understand what their

21 interpretation of "played an active role" was. And

22 I still, having heard Mr Port's evidence, am no clearer

23 on that subject.

24 Q. At any rate it seems to be beyond doubt that his efforts

25 certainly earned him some vituperation by the

 

 

66

 

1 Special Branch, didn't they? That evidence must have

2 reached your ears, I suspect?

3 A. Clearly from the document trail, sir, there was clearly

4 tensions at times between Mr Port and Special Branch.

5 Q. If nothing else it tends to indicate a bit of effort,

6 doesn't it?

7 A. I think I have acknowledged Mr Port's efforts --

8 Q. I think you have, actually.

9 A. I think I supported him on the occasions when he was

10 pushing his point, but in respect of (redacted)

11 intelligence, I would need to be clear that I have not

12 heard evidence that would enable me to say that I am

13 satisfied that he validated the intelligence (redacted)

14 (redacted) in respect of the content.

15 Q. Now, Mr Port also gave evidence about a concept --

16 I think we heard it from someone else -- called

17 triangulation, the concept of comparing intelligence and

18 information. I don't want to use that term, Mr Ayling.

19 I want to look with you, please, at how you could

20 validate, for example, this material (redacted)

21 (redacted), whether it was possible to do so. Do you

22 understand?

23 A. I understand, yes.

24 Q. Now, we could probably take this quite quickly.

25 A murder such as this will inevitably be a criminal

 

 

67

 

1 conspiracy and may involve a large number of people

2 doing different things?

3 A. Yes, we have agreed that.

4 Q. And there will be different roles, which may mean that,

5 for example, it would be perfectly possible for someone

6 to order the murder from another country or anywhere

7 else -- yes? -- and be the murderer, every bit as much

8 as the man who stuck the under-vehicle device underneath

9 the car; would you agree with that?

10 A. Of course we could expand beyond that. People who

11 transported the device, people who made it, people who

12 stored it, people who had taken part in some sort of

13 reconnaissance on the target vehicle, people who

14 assisted by driving individuals to the scene, which goes

15 to the heart, Mr Egan, of why I say it was important to

16 understand what "played an active role" meant.

17 Q. And it would also be very, very important, wouldn't it,

18 to understand, particularly in your function, with some

19 accuracy exactly what the other intelligence or

20 information was, if there was any?

21 A. If there was any. My observation is that this was

22 the -- one of only two pieces of intelligence that

23 identified one of the targets and one of only one piece

24 of intelligence in respect of another.

25 Q. Well, let's just consider that, shall we, for a moment?

 

 

68

 

1 There could be all kinds of ways that such information

2 or intelligence could be -- and I use a term now

3 carefully, but it is a legal term -- it is not used very

4 much now -- corroborated. You understand the concept of

5 corroboration?

6 A. Of course, sir, yes.

7 Q. And broadly speaking, corroboration would be confirmed

8 by a source independent of the --

9 A. Original --

10 Q. -- original source. That's how I'm going to use it.

11 Now, in relation to that, such corroboration could

12 take a number of different forms, couldn't it? Just

13 consider some for me. There could be information from

14 another source?

15 A. Correct.

16 Q. There could be, once Operation George, for example, got

17 going, Operation George product?

18 A. Correct.

19 Q. There could be other information that came into the MIT,

20 such as anonymous calls, for example?

21 A. One would be very cautious about that as corroboration.

22 Q. I see. But it may very well affect the weight you would

23 put on it, but you might want to look at that too?

24 A. You certainly wouldn't ignore it, but I'm cautions

25 against accepting it as corroboration. It would be

 

 

69

 

1 unwise.

2 Q. And there might be other evidence which, put together,

3 as it were, quite a powerful support for the original

4 intelligence. It is perfectly possible, isn't?

5 A. Other evidence from what sources?

6 Q. Well, from any sources. We may look at some, Mr Ayling.

7 But the concept is there, isn't it?

8 A. If there was other evidence, then I accept that would be

9 corroborative.

10 Q. And as far as this exercise is concerned -- and you have

11 been good enough to pin your colours well and truly to

12 the mast on this -- you say, well, really there isn't,

13 save in one instance, the support for this. How

14 satisfied are you that either you or your team have

15 actually analysed the available intelligence in such

16 a way as to enable you to give an accurate assessment of

17 that support, or lack of it?

18 A. Well, I would express a high degree of satisfaction,

19 sir, based upon the thoroughness of the work that

20 I believe my team has completed at my direction.

21 Q. Because your accuracy in doing so is a very material

22 matter when considering the accuracy of your report,

23 isn't it? That must be right, Mr Ayling, mustn't it?

24 A. Yes, I think it would, yes.

25 Q. If you have missed things, if you have got things wrong,

 

 

70

 

1 then it casts a doubt upon your conclusions, doesn't it?

2 A. Yes. I mean, that, Mr Egan, is why when I was appointed

3 to my task, I was quite insistent that a draft of my

4 report was made available to the MIT so that if I had

5 made such errors, they would have the opportunity of

6 pointing them out to me.

7 Q. And I think they gave a detailed response, did they not?

8 A. Yes.

9 Q. And you took the advantage to make a number of

10 corrections in your original report?

11 A. Indeed.

12 Q. But you see, you still maintain -- and we have looked at

13 the paragraph -- that their position was predicated on

14 the basis of claim of responsibility, a couple of bits

15 of SB intelligence, similar devices and, I must suggest

16 to you, Mr Ayling, you do that in spite of the fact that

17 you know their case is there was an abundance of

18 corroborative material to support this?

19 A. Of course, the assessment as to what they had based

20 their line of enquiry on, Operation George, was very

21 much the assessment team's view in respect of the

22 documentation that we had available to us.

23 Nowhere is it actually documented that that was

24 indeed the basis or any other alternative basis

25 documented. There is no information about that. But

 

 

71

 

1 I maintain a position that I have not seen evidence of

2 other material. But just to be sure that we are going

3 down the right path here, I mean, it is not my position

4 that Operation George should not have been started.

5 Q. No, no --

6 A. It is clear in my report that that was a perfectly clear

7 line of enquiry.

8 Q. I interrupt you -- Mr Phillips has asked me to point

9 out -- and I think this is for the public gallery more

10 than anything else -- that the MIT received its

11 intelligence from Special Branch by way of briefing

12 sheet, et cetera, and not in the form of the

13 intelligence documents.

14 I think, sir, you will know I'm doing this as a way

15 of sourcing the redacted material, but I'm happy to make

16 that clear. Otherwise there is no way we will be able

17 to look at meaningful information and other parties

18 won't be able to follow it, Mr Ayling. I know you

19 understand that.

20 A. Yes.

21 Q. So at any rate, just before we look at it, at the detail

22 insofar as we are able to, you are happy with your

23 analysis of the intelligence, are you?

24 A. I am.

25 Q. Yes. Now --

 

 

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1 A. Mr Ayling, can I just ask before we move on, you posed

2 the question when we began -- and I assume you were

3 going to come to -- of what were the ways of validating

4 the intelligence. I don't want to miss the point, of

5 course, that the obvious way of validating the

6 intelligence, particularly with Mr Port's terms of

7 reference as they were framed, (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted).

14 I didn't want to miss that point, sir, because

15 I thought you were -- that was your starting position:

16 how do we validate intelligence. Before we go on to the

17 points that you want to make, I just want to state the

18 obvious one.

19 Q. Yes, I shall be dealing with that, I suspect, in closed

20 session because I think there is almost nothing in

21 relation to that that can be shown on the screen, but

22 thank you for that.

23 A. You are probably right, sir, but I didn't want --

24 Q. I do have it on my radar, Mr Ayling, and thank you for

25 that.

 

 

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1 Could you look, please, at your report at 9.9.8,

2 RNI-606-027 (displayed). Now, in that particular

3 passage, which is redacted almost in its entirety in the

4 next page --

5 THE CHAIRMAN: It hasn't come up on my screen.

6 MR EGAN: It hasn't come up on my screen either.

7 MS (NAME REDACTED): I'm sorry, we don't have it on the system.

8 MR EGAN: RNI-609-027?

9 MS HUMPHRIES: 609.

10 MR EGAN: I was probably a bit indistinct.

11 THE CHAIRMAN: 609, is it? I noted a different reference.

12 MR EGAN: It was probably me (displayed).

13 In that, at paragraph 9.9.8, you identified

14 12 pieces of intelligence that were not passed on to the

15 MIT; do you remember that? It may very well be that we

16 can deal with this quite quickly, Mr Ayling, but you

17 probably remember there was a long list --

18 A. There is a chronology that follows this?

19 Q. A chronology and you identified 12 pieces of evidence

20 that you thought weren't passed on?

21 A. Were not passed on, yes.

22 Q. Mr Provoost, in his second, deals with the matter in his

23 third statement -- that's his obstruction statement at

24 RNI-817-341 (displayed), and the Panel and the Full

25 Participants will be familiar with this because it was

 

 

74

 

1 also attested to by M540. But in broad summary -- and

2 I'm sure you will know this, Mr Ayling -- I hope you

3 will, at any rate -- I'm sure you will have followed

4 what he was saying. He said actually in relation to

5 those 12 pieces, "We did have two of them". I'm trying

6 to summarise this because otherwise I'll never finish

7 today, do you see?

8 A. I understand. And I mean, I also will try not to be

9 difficult, but I understand from that list of course

10 there were also some that I believed he did have that he

11 indicated that in fact he didn't.

12 Q. Sorry, just so I understand that answer?

13 A. The list in my chronology identifies some intelligence

14 that I didn't highlight in bold, which is the way of

15 indicating that perhaps they didn't, where I believe,

16 according to his evidence, he in fact didn't have it.

17 Q. Yes, there was one particular piece of intelligence.

18 I'm going to come on to ask you about that.

19 A. I think we are talking of the same one.

20 Q. Yes, right. And that's quite a well-known one and

21 I think you were asked about it yesterday. I'm not

22 going to say anything about it lest I offend the rule,

23 but I think part of it is out.

24 Now, he at RNI-817-334 (displayed) sets identifies

25 13 pieces of additional documentation which, in his

 

 

75

 

1 view -- and he has given evidence about this, as has

2 M540 -- were important; yes?

3 A. He set it out in a tabular form, yes.

4 Q. And is it right that those were items of intelligence or

5 items of information that were not identified as not

6 being with the MIT -- sorry, there is a double negative

7 there -- by your team?

8 A. I think I would like to go through each individual one,

9 if you are going to hold me to it. But if we can

10 broadly say yes for your purposes, I'm happy to say yes.

11 Q. Yes, I mean -- it may very well be -- and I hope this

12 won't meet with objection -- it may very well be if

13 I get any of this wrong, I know Mr Phillips and

14 Mr Savill will undoubtedly pass me a note or, indeed,

15 interject and it may very well be in those

16 circumstances, Mr Ayling, we can perhaps be a little

17 less cautious.

18 A. Yes. I'm trying to help you make progress, Mr Egan, if

19 I can.

20 Q. Thanks for that, at any rate. I'm sure that is heard

21 with gratitude by everyone.

22 Trying to deal with this as quickly as I can, he

23 identifies, does Mr Provoost, 13 pieces of additional

24 intelligence which is important, and if we look at one

25 of them, this will be the one that you have just been

 

 

76

 

1 talking about, RNI-609-015, please (displayed). Oh,

2 right, yes. Could you highlight, please, at about

3 halfway down the page:

4 "04/99 murder from RHD claiming responsibility from

5 call box [blank]."

6 And that refers to the piece of intelligence which

7 you had not picked up, had not been passed on to the

8 MIT?

9 A. That's the one we were referring to, yes.

10 Q. Now, just dealing with that for a moment, the assessment

11 team under your command had access to the MIT material;

12 yes?

13 A. Yes.

14 Q. The HOLMES account?

15 A. Yes.

16 Q. Did you have access to the X2 account? I think you did.

17 A. Yes.

18 Q. But you had access to more than that, didn't you? You

19 had access to intelligence, did you? Did you have

20 access to more than the MIT had?

21 A. No.

22 Q. What about Special Branch material that appeared in the

23 Part 2 bundles?

24 A. I'll try and explain this as best I can, Mr Egan. For

25 the purpose of writing my report up to the finalisation

 

 

77

 

1 of it, I was not exposed to any material that

2 Special Branch had. After I had written the report,

3 certain members of my team, to assist the public

4 inquiry's legal team, had additional access to

5 Special Branch material. It was deemed appropriate that

6 a lot of that material was kept from me on the basis

7 that it was not known to the Murder Investigation Team

8 and that there would be an element of unfairness if

9 I took any account of that in coming to my conclusions

10 in respect of the due diligence of the Murder

11 Investigation Team.

12 Q. I'm going to stop you there because I was going to ask

13 you some questions about it. Now I'm not going to

14 because -- I'll consider the position, but it seems to

15 me I was going to put some propositions to you that it

16 seems to me have just been answered, and I can

17 guillotine that because I think I have to be quite

18 disciplined about trying to get through this. It's not

19 a point against you, in other words, and I will come

20 back to it if I need to.

21 You say, "If I missed the fact they didn't have

22 those 13 items, there is a reason for it. I didn't have

23 had access to it." Yes?

24 A. Yes.

25 Q. I'm still a little doubtful just in relation to the one

 

 

78

 

1 piece of intelligence, a little doubtful, as to how come

2 you got to see that in those circumstances?

3 A. I would have to check that out, Mr Egan. I can't answer

4 that off-the-cuff.

5 Q. Because it is quite a striking piece of intelligence,

6 isn't it, when you consider a very important point that

7 you make, paragraph 14.4.9, the claim for

8 responsibility?

9 A. That page hasn't come up on the screen because I think

10 we need the document reference number.

11 Q. I wasn't going to ask it to come up. You remember, the

12 claim for responsibility? I'm not going to ask you to

13 look at it every time. Claim for responsibility and,

14 indeed, you deal with this in your report, do you not?

15 A. I do.

16 Q. It does seem to be the case -- and I think I must ask

17 you this -- that under the heading "Claim for

18 Responsibility, chapter 8" -- it starts at 8.30,

19 chapter 1, RNI-608-064 (displayed). I'm slightly a bit

20 in advance. Maybe it starts at RNI-608-063 (displayed).

21 There is a quantity of detail in that chapter of the

22 report on lines of enquiry. The claim for

23 responsibility being, of course, an important one, and

24 indeed you very fairly concede that the MIT took

25 considerable steps to try and identify where the call

 

 

79

 

1 was made from.

2 But it is right, is it not, that notwithstanding the

3 fact that that piece of intelligence, which they had not

4 seen, dated April 1999 -- I'm not going to ask to go

5 back to it; we have just been looking at it -- that was

6 not factored into your team's examination of the claim

7 for responsibility?

8 A. I really can't recall how that particular piece of

9 intelligence was dealt with. I'm happy to stand by and

10 defend what I have written in this claim of

11 responsibility, and if you continue, we will see where

12 we go, Mr Egan.

13 Q. Well, it is not referred to in there. This piece of

14 intelligence is not referred to in there. The evidence

15 has been -- and as I understand it, there is no -- a

16 dangerous thing to say -- it hasn't been suggested that

17 that intelligence was passed on to the MIT. And in

18 those circumstances, I would like to know -- that's

19 a different issue -- you clearly had -- an awful modern

20 phrase -- visibility of this piece of intelligence

21 because it appears in another part of your report. We

22 have already seen that.

23 I would like to know from you, as the man in charge

24 of the IAT, how you could pronounce on the claim for

25 responsibility without examining that piece of

 

 

80

 

1 information, because it looks as if you missed it.

2 A. It is in the report in another section, which you have

3 correctly identified. I'm at a loss to explain to you

4 how the visibility arose. I think I would like to take

5 time out to examine that, which we can't do at the

6 moment. It may be a subject that we perhaps could come

7 back to.

8 Q. With the Chairman's leave, of course I'm sure you will

9 be able to look at chapter 8 over the luncheon

10 adjournment and if I have missed it and it is there,

11 Mr Ayling, you will be able to tell me that when we

12 resume again.

13 A. Yes.

14 Q. Now, that's one of the other parts. There is the claim

15 for responsibility, the two bits of SB intelligence and

16 we have similar devices. I want to go back to the

17 intelligence, please.

18 Now, in your report you -- I just want to be sure

19 I have got my reference correct on this. (Pause)

20 In your report you identify a number of pieces of

21 intelligence -- there is no point asking you to look at

22 the report because it is completely redacted. So

23 here -- I'm very sorry, Mr Ayling, there is a certain

24 element of a voyage of discovery here. I'm going to see

25 if I can get as far as I can on this. I think I will be

 

 

81

 

1 able to -- I'm sure your memory is good. In your report

2 in chapter 9 you identify a number of pieces of

3 intelligence that you say were significant in the murder

4 of Rosemary Nelson. Do you remember that part? I think

5 what happened is --

6 A. Yes.

7 Q. -- there is about ten bits of intelligence. You start

8 off the chapter by saying in this case we have excluded

9 intelligence that is not relevant to the murder of

10 Rosemary Nelson. Do you remember the part?

11 A. I think so. Is this intelligence that points to

12 identification of suspects?

13 Q. Well, it doesn't quite put it in that way -- and I'm not

14 going to go behind the redactions for the moment just

15 out of caution. But in fact the term you use, sir --

16 well, you accepted from me is, "I have excluded

17 intelligence which is not relevant to the -- let me get

18 the exact wording.

19 A. What paragraph number, sir? I'm trying to be as helpful

20 as I can. I don't want to be difficult there, but for

21 the sake of accuracy, I would like to know --

22 Q. 9.9.8. It is at RNI-609-127 (displayed).

23 A. Yes, I see, yes. And excluded for --

24 THE CHAIRMAN: That is the right references, is it,

25 Mr Ayling? Because it hasn't come up on our screen.

 

 

82

 

1 MR EGAN: 609. I hope I said it. Maybe I'm indistinct, I'm

2 sorry.

3 A. Yes, but the particular page is completely redacted,

4 isn't it?

5 Q. Yes, and in fact this is why I'm having trouble to put

6 it up. It says:

7 "What follows is a summary of this information as

8 provided to the MIT."

9 And you say -- and I think I'm allowed to say this:

10 "Excluded from this list that is not considered by

11 the AT to be relevant to the murder of Rosemary Nelson."

12 Am I right?

13 A. Yes, it is a way of trying to manage what would

14 otherwise be an unmanageable task.

15 Q. That's absolutely fine.

16 Now, again using a document, if I may, which would

17 not have been in the form that came before the -- in the

18 same form as seen by the MIT, could you look, please, at

19 RNI-544-194 (displayed)? Are you familiar with that

20 document? Just answer that yes or no?

21 A. I have seen it before, yes.

22 Q. Again, yes or no: do you know what's underneath the

23 redaction, sir?

24 A. I believe I do.

25 Q. Is it a significant piece of intelligence?

 

 

83

 

1 A. Yes.

2 Q. Does it appear in your list which was considered to be

3 relevant to the murder of Mrs Nelson?

4 A. Do you want me to go through that list, sir? You

5 presumably are making the point that it is not in there.

6 Q. I'm pretty confident it isn't in there. But you give

7 the evidence; I don't.

8 A. I'm only trying to save us time in the spirit of before.

9 I mean, I would want to read that to be satisfied

10 whether it was or wasn't. If you tell me it isn't,

11 I accept that.

12 Q. We will be reaching a very good time to do that because

13 we are approaching the luncheon adjournment, and any

14 errors can be -- but if it isn't in there, why isn't it?

15 A. It has maybe been referred to elsewhere. Without the

16 ability to read through the entire report, it would be

17 difficult for me to answer that with --

18 Q. I can help you on that. It is in the chronology of

19 information, the one that we looked at earlier, or the

20 long list. But you see, this is you, as the assessment

21 team, looking at information and you make the particular

22 point:

23 "Several intelligence reports forwarded by SB to the

24 MIT related to important information. These are

25 included in the chronology. What follows is a summary

 

 

84

 

1 of the information as provided to the MIT and excluded

2 from this list is information that is not considered by

3 the MIT to be relevant to the murder of

4 Rosemary Nelson."

5 And if my reading of this is correctly, Mr Ayling,

6 this has been excluded. Why?

7 A. Because, possibly, that document is not (redacted)

8 (redacted) in the redacted box in 9.9.8.

9 Q. Could I understand what that answer is then, please?

10 A. Well, what follows --

11 Q. Probably my fault.

12 A. What follows in the chronology is a summary of the

13 intelligence (redacted)

14 (redacted)

15 (redacted).

16 Q. So was it a relevant piece of material to consider in

17 this case?

18 A. Yes, what you have put on the screen is relevant, but

19 the absence in that chronology hopefully I have

20 explained to you.

21 Q. I see the point. And this is one example, you see,

22 Mr Ayling, of looking at intelligence as an investigator

23 because it might be important, mightn't it, speaking

24 generally, to look to see what intelligence comes from

25 other sources; would you agree with that?

 

 

85

 

1 A. I would agree with it. So far we started off, Mr Egan,

2 talking about the early intelligence and its validation

3 in respect of the operation that followed, Operation

4 George. I am sticking to my position that there was

5 only one piece of intelligence that identified one

6 target and two pieces of intelligence that identified

7 the other, but here we seem to have, if you like,

8 migrated to deal with the different matter, which is the

9 intelligence in respect of the person who possibly made

10 the device.

11 Q. Yes.

12 A. And I think there is -- it is confusing. We need to

13 deal with one or the other. Swapping between the two is

14 unhelpful.

15 Q. Now, the person who made the device is a very important

16 person in the context of this conspiracy to murder?

17 A. Of course.

18 Q. As I think was put by Mr Phillips to one of the

19 witnesses on a number of occasions, that theory goes if

20 you have got the bomb maker wrong?

21 A. Yes.

22 Q. And in those circumstances, getting the bomb maker right

23 is a very important part of the case, isn't it?

24 A. Yes.

25 Q. Are you confident that your team have analysed properly

 

 

86

 

1 the intelligence material to see whether there is other

2 support which tends to indicate that that information

3 was correct?

4 A. I am confident my team has examined all the material.

5 Q. I'm sure they have examined all the material, but have

6 they examined it and are you confident that you have

7 assessed it in an investigative way? Do you understand

8 what I mean by that?

9 A. I think so and my answer would be: yes, I am confident.

10 Q. Are you confident that your team have examined all the

11 Operation George product and tallied it, if you like, or

12 saw how it fitted in with the other material that came

13 from other sources, intelligence information, whatever?

14 A. I am confident, yes.

15 Q. Well, I want to look with you this afternoon, insofar as

16 I am able to -- but I will do so briefly -- at some of

17 the Operation George product that affects this --

18 A. Yes.

19 MR EGAN: -- position, but I would very much appreciate it

20 if you would, over the luncheon adjournment, read the

21 portion at chapter 18 commencing -- I think it is at

22 8.30 in relation to the claim for responsibility, and

23 tell me, as it were, whether you have in fact taken into

24 account therein the piece of intelligence which I have

25 identified. Would that be a convenient moment, sir?

 

 

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1 THE CHAIRMAN: Certainly. We will adjourn until 2 o'clock.

2 (1.00 pm)

3 (The short adjournment)

4 (2.00 pm)

5 THE CHAIRMAN: Yes, Mr Egan?

6 MR EGAN: Thank you. Did you read chapter 8 while we were

7 out?

8 A. Yes, I did, Mr Egan. I have been very busy in the lunch

9 break. First of all, to deal with things in

10 chronological order, I have got my ten references to

11 terrorism in the Murder Investigation Manual. Did you

12 want to go through those?

13 Q. No -- and I will certainly give you the opportunity to

14 give those, but the question I was asking was did you

15 read chapter 8 in your report, please, over the luncheon

16 adjournment?

17 A. Yes.

18 Q. Is there reference to that intelligence in there?

19 A. The situation, as I can deduce it is this, Mr Egan: that

20 particular item of intelligence which, on hearing the

21 evidence given by the senior management team, I had

22 conceded perhaps that the Murder Investigation Team

23 didn't know and I wonder now whether that was actually

24 the case --

25 Q. Can I just interrupt you, Mr Ayling, I hope not

 

 

88

 

1 improperly. First of all, presumably the answer is it

2 isn't in that chapter. Is that the answer to the first

3 question? Is it in the chapter?

4 A. I need to give you the full answer, Mr Egan, I think.

5 Q. I will ask a second question then. Why not?

6 A. And I will deal with that.

7 Q. So do --

8 A. Should we put the item back on the screen?

9 Q. Yes, by all means.

10 A. I'm sorry, I don't know the document reference.

11 Q. Neither do I off the top -- oh. That's another one

12 I want to ask you about.

13 SIR ANTHONY BURDEN: RNI-544-194 (displayed).

14 MR EGAN: I don't want to be adversarial about this, but it

15 is either in that section on the claim of responsibility

16 or it isn't.

17 A. It isn't.

18 Q. At least we have that answered. Now, second question:

19 why not, please?

20 A. It appears to be an oversight and I would like to

21 explain how that possibly came about.

22 Q. Mr Ayling, oversights happen in the best regulated of

23 houses. If it is a mistake, so be it. Was it

24 a mistake?

25 A. I would like to explain that, Mr Egan.

 

 

89

 

1 Q. Was it a mistake?

2 A. I would like to explain it.

3 THE CHAIRMAN: Answer the question first: was it a mistake,

4 and then supply why shortly afterwards, please,

5 Mr Ayling.

6 A. It appears to be an oversight, sir. (Redacted)

7 (redacted)

8 (redacted) and it appears my willingness

9 to accept that the Murder Investigation Team didn't have

10 that intelligence based upon their evidence may not

11 necessarily be the case because from the documentation

12 trail, it seems that Mr Port had been given access to

13 (redacted) all intelligence (redacted)

14 (redacted)

15 (redacted).

16 This is possibly confirmed from a statement of the

17 Head of SB, (redacted)

18 (redacted)

19 (redacted).

20 It appears to be an oversight that it wasn't in the

21 report --

22 MR EGAN: I always hate interrupting witnesses and

23 I apologise for it, but what on earth did the last

24 answer have to do with the mistake that you have made?

25 A. I'm coming to -- you haven't let me finish --

 

 

90

 

1 Q. Are you saying that you deliberately left it out because

2 you weren't sure whether they were given it or not?

3 A. No, I said it was an oversight, Mr Egan, and I said that

4 I perhaps too readily conceded that the Murder

5 Investigation Team had not seen that intelligence

6 before. That seems now it may not be the case and

7 I have given my reasons for that.

8 Q. That's a different issue, with respect, and that is

9 material that has come before this Panel after your

10 report. It is your report I'm enquiring into now, not

11 whether you happen to accept what someone from

12 Special Branch may say about it.

13 Now, in relation to the Red Hand Defenders claim --

14 A. I wasn't finished Mr Egan.

15 Q. All right.

16 A. The point about the oversight is it appears to be an

17 oversight perhaps on both our parts because having

18 checked the draft report that went to the MIT, dated in

19 2007, that item of intelligence was clearly in the

20 chronology. And in the response, clearly the MIT

21 identified certain items in that chronology that they

22 hadn't seen before but this was not one of them. So if

23 there was an oversight, there was on oversight on both

24 our parts.

25 Q. But the one thing that the MIT aren't doing, Mr Ayling,

 

 

91

 

1 is criticising you, you see, so perhaps our mistakes on

2 that can perhaps be put to one side. I'm more concerned

3 with the accuracy of your determinations.

4 Now, in relation to that claim for responsibility,

5 certain it is that in the course of your report you go

6 into some detail about the various steps taken by the

7 MIT to try and source that call?

8 A. That particular call?

9 Q. Yes.

10 A. The claim of responsibility?

11 Q. The claim of responsibility, yes.

12 A. Certainly, yes.

13 Q. Now, simply this -- and help me -- it has to do with

14 possible evidence. You gave evidence yesterday that

15 although the intelligence is of significance, due to the

16 various investigating records, the view of the MIT is

17 that its credibility is very much devalued. I'm not

18 going to ask you to go through that.

19 A. Yes, I remember.

20 Q. And I think we have heard and the Panel have heard

21 a deal of evidence that the Red Hand Defenders were

22 regarded as -- this is the flag of convenience point?

23 A. Yes.

24 Q. Just put that to one side, we are agreed on that.

25 A. Yes.

 

 

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1 Q. However, applying such investigative experience as you

2 can to this, just consider this proposition: if one of

3 the suspects, any one of them, could be shown to be

4 either making the claim -- that is making the call or

5 being involved in the making of it -- or alternatively,

6 say, in a rough vicinity of time, three weeks, three

7 months, making another claim under the RHD banner, would

8 that be a relevant and material matter in relation to

9 the investigation of Rosemary Nelson?

10 A. It would be material. You would have to keep an open

11 mind because of the information that the Red Hand

12 Defenders were used as an umbrella claim -- the flag of

13 convenience issue.

14 Q. Yes, I follow that and I have already conceded the flag

15 of convenience point. But if, for example, any of the

16 named suspects could be shown to be involved in RHD

17 claims, either this claim or another claim, that could

18 be powerful evidence against them, couldn't it?

19 A. It could be evidence, but you would still have to keep

20 very much in mind that the Red Hand Defenders' claim is

21 very much devalued as pointing to the true perpetrators

22 because of the flag of convenience issue. It is

23 well-known that that organisation claimed attacks that

24 they aren't responsible for. In fact, I recall they

25 even claimed an attack that PIRA had made.

 

 

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1 Q. Now, just dealing again, please, with my question, if

2 any of the suspects could be shown in addition to other

3 evidence to have either sanctioned the claim for

4 responsibility on 15 March or to be familiar with and

5 able to make such claims in the future, as an

6 investigating officer would you regard that as something

7 that could be used in evidence against them?

8 A. Subject to the caveat that I have already tried to

9 explain, yes.

10 Q. Now, are you confident that the assessment team, the

11 IAT, have examined and analysed either the intelligence

12 or the product sufficiently carefully to be able to see

13 whether such evidence exists?

14 A. Yes.

15 Q. Does it?

16 A. That we can identify the person who made the claim?

17 Q. No, as to whether any of the suspects were involved in

18 either sanctioning the claim or making a claim, say, at

19 some point in the future?

20 A. I'm sorry, I'm probably being rather thick but you will

21 have to rephrase the question.

22 Q. It may be the redaction, although I hope it isn't. We

23 know we are dealing with suspects?

24 A. Yes.

25 Q. Just in relation to any of them now, if there was any

 

 

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1 evidence that any of them were either involved in making

2 the claim or made another claim through the RHD shortly

3 thereafter, are you aware as to whether there is any

4 evidence of that? If the answer is no, Mr Ayling, you

5 are allowed to say so.

6 A. It is a very complex area, as I'm sure you recognise,

7 and of course, I have given in my evidence what I want

8 to be clear about: that the making of a claim on behalf

9 of the Red Hand Defenders is not necessarily going to

10 point you at the perpetrators of the crime.

11 Now, certain people who made claims -- and I think

12 the Murder Investigation Team believed that the claim

13 had been made (redacted)

14 (redacted), in which case there was -- there were people

15 who featured, who were believed responsible for making

16 the claim.

17 Q. That is not what I refer to. I'm not talking about

18 that. I'm talking about some Operation George product.

19 Are you aware that some Operation George product --

20 in fact, just call it product for the moment -- there is

21 prima facie evidence of one of the suspects being

22 involved in the making of a claim under the RHD?

23 A. You would have to point me at the evidence, Mr Egan,

24 because I don't recall it.

25 Q. Certain it is that we don't see any reference of any

 

 

95

 

1 such matter in your report?

2 A. Well, I don't recall it. You will help me --

3 Q. Well, it isn't in your report. So I think we could

4 probably assume, therefore, I'm correct on that -- and I

5 will be corrected if I am wrong --

6 A. It is in my report that I think I have acknowledged that

7 MIT believed that (redacted) had made the call. I'm

8 certain that's in my report.

9 Q. That is not, and in many ways it is an example of

10 perhaps trying to do too much of this, which is more

11 appropriate for a closed session. But the MIT are

12 trying to encourage a bit of transparency in this,

13 Mr Ayling, and that's why I'm going for this rather

14 clumsy examination with these constraints.

15 Now, you mentioned before lunch that in relation to

16 the items from Special Branch, the intelligence from

17 Special Branch, there were two in relation to one set of

18 suspects and one in relation to another, and it occurred

19 to me that I hadn't, in fairness, shown you the third

20 bit of intelligence.

21 A. Yes.

22 Q. Do you want me to --

23 A. Well, I'm familiar with what that item --

24 Q. You are familiar? And that's the travelling through

25 a particular area, is it?

 

 

96

 

1 A. No, it is the item of intelligence that will be

2 redacted, that came, I think in September or October to

3 the MIT, which was the second piece of intelligence that

4 actually named one of defendants as being --

5 Q. I know that to which you refer. Yes, I see.

6 We will come on to look at that in a second. That's

7 a rather longer point.

8 Mr Ayling, would you agree with this: that looking

9 in the round, the investigating officers should have

10 looked at all of intelligence that came in and would

11 have been entitled to see whether, for example, one

12 source could support another, or would you say that

13 isn't the position?

14 A. Yes, of course they would be entitled, yes.

15 Q. Thank you very much.

16 Now, I just want to ask you, please, about the

17 question of similar devices in those circumstances.

18 Could you look, please, at the Operation Cornwall log at

19 RNI-837-008, please (displayed)? Could you highlight,

20 please, the paragraph 2 at the top? This, of course, is

21 Kent's log and I'm going to deal with this looking at

22 the Kent documentation:

23 "The key orientation [says the note-taker] at this

24 stage seems to be inferences drawn from the forensic

25 examination of the explosive device. The forensic

 

 

97

 

1 scientist's view expressed with a high degree of

2 confidence was that this device contained the bomb

3 maker's signature and could be associated with several

4 other devices known to have been deployed by Loyalist

5 terrorists. This observation should provide the main

6 focus for the enquiry at least in regard to motive.

7 There are good reasons, however, to work to exclude

8 other possible motives."

9 And Mr Kinkaid agrees.

10 Now, some days later on 25 March, Operation Cornwall

11 log, RNI-837-017 (displayed), we get an entry that's

12 comparatively short but I want to ask you about it,

13 please. You may remember Mr Kinkaid gave evidence about

14 it. Could you highlight under "Publicity of forensic

15 links in previous bomb incidents ...

16 "Update by the SIO regarding forensic progress."

17 We see what the heading says:

18 "Difficulties with original swabs establishing exact

19 type of explosive used.

20 "Discussion re linking the offences to particular

21 bomb makers in between incidents. Support for SIO's

22 policy decision not to reveal intelligence re device

23 with a view to not contaminating the scientist's

24 findings. Agreed to keep under review media

25 opportunities."

 

 

98

 

1 You probably remember Mr Kinkaid's evidence about

2 this. He was effectively saying -- I'm trying to deal

3 with this in quite a brief way -- we can have a look at

4 a bit of the intelligence in a second. He was trying to

5 deal in a brief way with the fact that -- he was rather

6 anxious to keep under control the idea that the bomb

7 maker had a particular signature. Do you remember that

8 evidence?

9 A. Not particularly, but --

10 Q. Have a look at a document, please, at RNI-909-016

11 (displayed). This must be a document, I would venture

12 to suggest, that you must be very familiar with, albeit

13 it is redacted. And if we highlight, please, the

14 middle, from under paragraph 1 down to "with regard to

15 incident 4 ..." Thank you. Just to make it a bit easy.

16 Now, this is a bit of intelligence received by

17 Special Branch about broadly similar incidents; that is

18 Loyalist incidents. They all involve under-vehicle bomb

19 attacks and we have under the six:

20 "In relation to incidents 1, 2 and 3, Special Branch

21 intelligence indicates that [a person, a suspect], was

22 responsible for the construction of all the devices"?

23 A. Yes.

24 Q. You are aware of the identity of that redaction,

25 aren't you?

 

 

99

 

1 A. Yes.

2 Q. Well, first of all, that is a very significant piece of

3 intelligence, isn't it?

4 A. Yes.

5 Q. Yes. And for these purposes there is nothing taken

6 against you on this score, Mr Ayling -- of course, the

7 rest of the document identifies possibly that others may

8 have made devices. And in those circumstances, the SIO

9 is sensibly, notwithstanding perhaps Kent's eagerness to

10 extend the principle to say, "Look, the intelligence

11 tends to indicate that this particular person only made

12 three." Fair?

13 A. I'm not sure I make the point. We are going back to the

14 Operation Cornwall log where you originally identified

15 that the SIO said that he would not reveal the

16 intelligence?

17 Q. Hm-mm.

18 A. To the scientist. Is that the point you are making?

19 Q. Yes.

20 A. I understand the point but having read the scientist's

21 statement, that doesn't seem to be the position of the

22 scientist.

23 Q. I'll come on to deal with that.

24 A. Right.

25 Q. The fact of the matter is the SIO is dealing with this

 

 

100

 

1 particular matter by looking at the intelligence

2 together with the scientist's report; yes?

3 A. Yes.

4 Q. Right. Now, when we look at the scientist's report --

5 that's Mr Murray -- you make, it seems, a number of

6 points about it. And I want to ask you about one or two

7 of them, if you would, please. Looking at this

8 particular document, can we keep in mind paragraph 3:

9 "19.1.97. The suspected remains of IED were

10 discovered at the junction of Cook Street/Ormeau Road in

11 Belfast."

12 Do you see that?

13 A. I see it.

14 Q. And that was, in other words, a failed device.

15 Apparently it dropped off.

16 A. Yes.

17 Q. Would you look, please, at your report at RNI-608-122

18 (displayed)? Now, we are dealing with the question of

19 magnets and if you look at the top half of the page,

20 please, and highlight that, we see a number of questions

21 posed by you as to why three such very powerful magnets

22 should have been used?

23 A. Yes.

24 Q. And very quickly the question is -- which, of course,

25 you will know I'm going to point out to your attention:

 

 

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1 was it possible that the bomb maker had previously made

2 a UVIED and this had detached itself from the underside

3 of the target car before detonation or was it possible

4 that he had experienced one that had been placed under

5 a car, detaching itself before detonation?

6 A. Yes.

7 Q. And those are actually very important questions from an

8 investigative point of view because I hope it is

9 axiomatic, Mr Ayling, that the last thing any bomb maker

10 will want, will be for one of his unexploded devices to

11 find their way into the hands of the police?

12 A. Yes.

13 Q. Because it hugely increases his chance of detection?

14 A. Yes.

15 Q. And equating that -- and bearing in mind that

16 question -- to the intelligence that the MIT received in

17 the document we have just seen, that could in fact

18 provide -- nothing is certain in this world, no one was

19 there photographing anybody -- but that could provide

20 powerful support for yet another piece of intelligence

21 that that person was the bomb maker?

22 A. It could.

23 Q. It could. Did you consider at the time that that was

24 something you should have borne in mind?

25 A. In what particular matter, sir?

 

 

102

 

1 Q. Well, we won't to have to go back to it every time, but

2 one of the things that you raise again and again that

3 you have admitted is there is only a couple of bits of

4 Special Branch intelligence; in fact, one piece in

5 relation to this particular gentleman. I can't

6 understand, I think you said on one or two occasions,

7 you said, how they could have been so convinced.

8 A. Mr Egan, this is the problem we are having and this is

9 the difficulty I have in answering your questions. You

10 keep moving between -- that comment is in relation to

11 the two targets of Operation George, and I stand by the

12 comment I make in the report, which is there was one

13 piece of intelligence that named one of them and two

14 pieces of intelligence that named the second.

15 You keep moving between those and the intelligence

16 that pointed to the suspected bomb maker. I have no

17 problem in agreeing that there is a lot of intelligence

18 in respect of the suspected bomb maker, but we are

19 moving between the two without making the distinction

20 and I think that's what's causing the confusion and

21 that's why I have difficulty in agreeing with some of

22 the questions that you put. I do agree there is quite

23 a lot of intelligence in respect -- that points towards

24 the suspected bomb maker.

25 Q. Well, I wouldn't necessarily agree with quite a lot.

 

 

103

 

1 I would say it would more than that, Mr Ayling, but I'm

2 grateful for the concession. But it doesn't stop there,

3 does it, because in any criminal conspiracy there may be

4 more evidence against defendant 1 than defendant 2 or

5 defendant 3?

6 A. Yes.

7 Q. That doesn't mean, of course, that defendant 2 and 3 are

8 not guilty, does it? We are all familiar with cases

9 like that.

10 A. Yes, I don't see how that helps us.

11 Q. Well, it helps us in this respect: a very important part

12 of the evidence which the MIT needed to take into

13 account in their investigative capacity, was any

14 evidence of connection between the person named as the

15 bomber and the other suspects. Would you agree with

16 that?

17 A. Yes, I would.

18 Q. And if there was powerful evidence showing contact with

19 them -- not just telephone contact, although that would

20 be useful enough, I suppose, insofar as -- but actual

21 acceptance by the other suspects that they knew this,

22 man well, had been in contact with him at the salient

23 time, through his modus operandi and detail about him,

24 that would be very important evidence in a conspiracy to

25 murder, wouldn't it?

 

 

104

 

1 A. It would be, Mr Egan, but I think you would have to look

2 at the totality of the picture because the people we are

3 talking about had associations with each other for other

4 reasons of criminality, in particular drug dealing, of

5 course.

6 Q. Indeed. And I think it has been given in evidence that

7 Loyalists terrorists often were Loyalist criminals as

8 well. But nevertheless if, for example, there was

9 evidence between -- and I will call them now defendant 1

10 and defendant 2 and defendant 3, just simply to make

11 sure that I don't slip -- if there was powerful evidence

12 that defendant 1 was the bomber and defendant 2 and

13 defendant 3 knew him, knew him well and, indeed, may

14 very well have asked him to provide devices or

15 explosives, that would be very powerful evidence indeed,

16 wouldn't it?

17 A. It would be powerful evidence, provided of course they

18 got the identity of the bomb maker correct.

19 Q. Oh, well, this is where -- I'm not going to be drawn

20 into the circular argument. We will approach it

21 probably in more detail in closed session, but my case

22 to you, sir, is that there is a powerful case that the

23 bomber is correctly identified. Do you dissent from

24 that?

25 A. Yes.

 

 

105

 

1 Q. And in those circumstances -- I thought you had conceded

2 there was some kind of case. How do you rate it in the

3 intelligence product or the information product or the

4 evidence?

5 A. I think there is much intelligence that points towards

6 that person being the bomb maker. I think there is some

7 contradictory intelligence that points away from that

8 person being the bomb maker, and taking into account

9 that the end result, as far as I can see it, of the

10 attempt to link the device used in this crime with the

11 other devices linked to Loyalist terrorism, I don't

12 think there was an evidential or forensic link made.

13 I think that's acknowledged by M540 in some

14 documentation.

15 Q. Sorry, can I just check that answer again? (Pause)

16 Are you talking about forensic evidence?

17 A. I'm talking about any sort of evidence.

18 Q. I don't think there was an evidential or forensic link

19 made. I think in those circumstances are you using

20 forensic its proper sense, i.e. evidence in court --

21 A. Yes.

22 Q. Thank you for that.

23 A. Sorry, sir, I must be in the scientific sense.

24 Q. Oh, right. Because this is one of the things I think

25 you fell into error last night a little on, didn't you,

 

 

106

 

1 in relation to M540? Because it was put to you that

2 M540, putting aside the scientist, as it were, and just

3 looking at it as an intelligent layman, intelligent

4 vetter indeed, there were obvious physical similarities

5 between the two; that's the rail with the magnet and the

6 magnet?

7 A. Yes.

8 Q. And you said:

9 "I think it is quite a dangerous point, sir, because

10 the forensic science, which is a science, is saying that

11 the science says that this magnet doesn't match this

12 rail. It hasn't come from that rail. So to put that

13 aside and say my human eye tells me it does, seems

14 a dangerous thing."

15 Now, you accepted this morning -- I think in fact

16 your acceptance this morning was, well, what you had

17 said was either misconstrued, was it?

18 A. I think the reason why I sought to correct it is that

19 I think it implied -- well, it stated that the forensic

20 science determined that the magnets didn't come from

21 that rail. What it did, of course, as I said this

22 morning, was that it neither proved nor disproved it.

23 Q. There was quite a -- I don't want to weary anyone with

24 it, but there was quite a detailed explanation from you

25 this morning. But as you have just accepted, I think,

 

 

107

 

1 in your evidence, really the position was you said that

2 he wasn't -- or he shouldn't come to this view because

3 the scientists had said it didn't come from the rail

4 when in fact that was wrong. That's a word I suggest

5 that you could use in these circumstances. That was

6 wrong. What the scientists had said was he was unable

7 to determine one way or the other?

8 A. And I thought that's what I corrected this morning,

9 Mr Egan, in fairness to M540 in the question that was

10 put subsequently to that.

11 Q. But the point that arises here, of course, in relation

12 to a forensic link -- I just want to make sure I

13 understand it -- what do you say it was that M540 said

14 that's relevant to this issue that I have been asking

15 you about, similar devices?

16 A. Okay, I'm trying to make progress, Mr Egan, so I don't

17 want to be scratching about in my report looking for

18 a particular reference. But my belief is that my report

19 contains documentary evidence that evidences M540's

20 conclusion that there was not a forensic or evidential

21 link that would support that the device was in fact

22 linked to -- on any other list.

23 Q. That is right. Oh, forgive me, you are now talking

24 about the bomb?

25 A. Yes.

 

 

108

 

1 Q. You are talking about the bomb, of course.

2 A. Yes.

3 Q. Now --

4 A. No, in other words it appeared that the bomb was

5 possibly unique.

6 Q. Yes. In fact, M540's evidence was, was it not, these

7 were all Loyalist devices and he gave detailed evidence

8 based on his own experience of the differences between

9 Loyalist devices and Republican devices, paramilitary

10 Republican devices. Do you remember that?

11 A. Yes.

12 Q. And in fact, I suggest to you -- and it may be that this

13 will be less fruitful for cross-examination; it probably

14 is, adopting what Mr Phillips said, more a matter of

15 submission -- your evidence about the suggestion that

16 Mr Murray's -- or Dr Murray's report on the Maghaberry

17 device particularly, but also particularly the

18 Rosemary Nelson device as being totally individual or

19 unique is based on a misconstruction of Dr Murray's

20 evidence, I suggest. Not that he has given evidence, he

21 has made a report and he has given a witness statement.

22 A. I'm confident that we have accurately reported in the

23 assessment report that Dr Murray said the Maghaberry

24 device was similar to the device used in the

25 Rosemary Nelson device, and that should have rung alarm

 

 

109

 

1 bells, I said in my evidence, because this device was of

2 course eventually attributed to INLA, a Republican

3 organisation. And, indeed, Mr Kinkaid revealed that he

4 had some personal knowledge to confirm that that was the

5 source of the device.

6 Q. Look, therefore, at RNI-813-890 (displayed). This is

7 Dr Murray's statement. Paragraph 83, please. His

8 report is not any more informative, I suggest:

9 "The Maghaberry device was mentioned in the report

10 because a slurry explosive had been used and it was,

11 therefore, similar in this respect to the explosive in

12 the device which was used in this case. I think that

13 the Maghaberry device also used black tape. However,

14 there was no other direct connection with the device

15 that murdered Mrs Nelson."

16 He goes on to say how it was distinctive and how he

17 only included it for the information of the

18 investigating officer.

19 Now, bearing in mind the experience of Mr Kinkaid --

20 and, indeed, in his statement I think he gives in detail

21 an account of his knowledge, his own knowledge, of the

22 Maghaberry device, reference paragraph 120. I'm not

23 going to draw anyone's attention. He wasn't asked about

24 it in fact. The approach taken by the MIT was perfectly

25 proper, bearing in mind Dr Murray's vast experience of

 

 

110

 

1 these kind of devices, wasn't it?

2 A. Dr Murray's original advice as reported to the Murder

3 Investigation Team, I believe I have correctly assessed.

4 It is mentioned in the report. We didn't have the

5 benefit of this fuller statement from Dr Murray. It

6 doesn't affect the comment I made earlier that

7 Dr Murray, having said that the Rosemary Nelson device

8 was similar -- it doesn't detract from the point I made

9 that because that was known to be a Republican device --

10 was one of the reasons why alarm bells should have been

11 rung to the MIT to ask themselves the question, well,

12 how much confidence can we have in what Dr Murray says

13 about the linking of these devices.

14 Q. But ultimately, his evidence and his report was just

15 that they were Loyalist devices. If you look at the

16 chart, everyone can see the differences, Mr Ayling. The

17 Panel have had the advantage of doing that and I know

18 you know them as well.

19 A. He said it was similar. He didn't qualify it by saying

20 "simply because it is a Loyalist device".

21 Q. No, he identified all the devices as Loyalist devices,

22 with the exception of this add-on at the end of this

23 report, which he deals with in that statement in

24 relation to the Maghaberry device.

25 A. Clearly if we are going to solve this problem, we need

 

 

111

 

1 to find it in the report because it is unhelpful -- I

2 don't want to speculate on what there is. I am

3 confident that everything I have said in my report is

4 evidenced and I would need to go to that page.

5 Q. Deal the magnets, if you would, please, just dealing

6 with that now. I suppose, using the correct term, there

7 is no physical match between the magnets recovered from

8 the scene and the gas cutter rails, but it was

9 a feature -- I mean, could we take this quite shortly,

10 Mr Ayling -- I don't know whether we can, but I'll try.

11 M540 was saying, "Look, there were three of these

12 very powerful magnets used. We got two gas cutter rails

13 from Harland and Wolff, one of which had three magnets

14 missing and the other one had one magnet missing. The

15 scientist said they looked similar but he couldn't

16 actually match them, they had been subject to an

17 explosion, apart from anything else." But he was

18 saying, wasn't he, as an investigative officer, as I'm

19 sure counsel would have said to a jury or could

20 perfectly properly say to a jury or a Diplock court, how

21 many of these are there going to be around anywhere.

22 They are very unusual things, aren't they?

23 A. Ultimately that's the question we do not know, Mr Egan,

24 because that line of enquiry was not taken to

25 a conclusion. We don't know how many of these were

 

 

112

 

1 around.

2 I did concede in my evidence yesterday that in all

3 probability the magnets came from the Belfast shipyard.

4 I do not believe that that line of enquiry was

5 finalised, and I daresay if you had been representing

6 the defence, that point wouldn't have been lost on you

7 about having the confidence of where the magnets came

8 from. They were welding magnets. How many were

9 distributed in Ireland, England, Wales, Scotland, we

10 simply do not know. Whether they were all painted red,

11 we simply do not know. Who the distributors were, we

12 simply do not know. Whether there were any thefts

13 reported from any of those places, we simply do not

14 know.

15 Q. Thank you. Now, I want to ask you, please, about

16 victimology. Victimology and victim-centred enquiries

17 are one and the same thing; that was your evidence

18 yesterday?

19 A. To all intents and purposes.

20 Q. And there will be murders where it is not necessary to

21 make specific enquiries. Again, that was a concession

22 made by you?

23 A. Yes.

24 Q. Yes. MIM existing best practice, and you commented on

25 Mr Provoost's evidence. Could we look, please, at,

 

 

113

 

1 again, RNI-616-779 (displayed).

2 Now, this is the policy entry we looked at this

3 morning -- thank you very much -- and what this was was

4 Mr Kinkaid, I suggest, starting out work that continued

5 throughout this investigation and certainly up to, shall

6 we say, the time when a specific decision was taken not

7 to interrogate Mrs Nelson's family?

8 A. In a very limited area of that work.

9 Q. First of all, let's consider what was done. First and

10 foremost, particularly when Mr Port came on board, he

11 made sure that family liaison officers were brought

12 over; yes?

13 A. He did.

14 Q. And that was a helpful and positive step. I think you

15 would agree with that?

16 A. I'm sure that I said that in my report.

17 Q. And what the evidence -- I hope I paraphrase is

18 fairly -- of the MIT witnesses has been on this is that

19 they took the view that proportionate and sensible

20 enquiries should be made into Mrs Nelson's background,

21 victim-centred enquiries, made with a degree of

22 proportionality and sensitivity.

23 Now, that's the sense of their evidence, you will

24 have heard it?

25 A. I do. Yes, sir, I remember.

 

 

114

 

1 Q. First and foremost, forgetting for the moment whether

2 one should make a complete vigorous victimology on

3 anybody, just putting that to one side, would you agree

4 that in the particular context of the Rosemary Nelson

5 murder in Northern Ireland, shortly after 1998, a year

6 into the peace process, that bearing in mind it was

7 a terrorist murder, victimology, if you style it such,

8 or victim-centred enquiries had to be approached with

9 sensitivity and proportionality?

10 A. Some aspects of them certainly.

11 Q. What aspects wouldn't you have to be sensitive about?

12 A. Accessing intelligence held by Special Branch relative

13 to the victimology line of enquiry, the possibility of

14 looking at phone records.

15 Q. Well, why would you want -- I mean, aside from the

16 enquiries that were made, contacts of the home phone

17 number and her office number, that you know were made --

18 we needn't go into that and you say were too limited --

19 why would you necessarily want to do cell site analysis,

20 for example, of where the unfortunate victim had been

21 the weekend before?

22 A. Because that helps to build the picture of any possible

23 suspect that you might later identify that could be on

24 a reconnaissance mission or targeting the victim at that

25 stage may be identified at some particular time in the

 

 

115

 

1 same locality.

2 Q. I mean, you, or the MIT, you see, knew where Mrs Nelson

3 was, Mr Ayling, because they had been told on reliable

4 evidence. So they thought and believe to this day.

5 A. Yes, I'm sure that's the case, but cell sight analysis

6 can be defined to a very particular and narrow area. It

7 would have been a very powerful indicator of someone

8 targeting the victim if, at that particular time, you

9 might analyse perhaps their phone record, that they were

10 in exactly the same locality.

11 Q. So --

12 A. We are talking about, you know, phone masts that may be

13 less than half a mile apart.

14 Q. Just so we understand this then, it is less to do with

15 victimology than this is first principle evidence, is

16 it, that in every murder such as this you should

17 automatically get cell site analysis in case it will be

18 of use in the future? Is that what you are saying?

19 A. In a lot of murders that would be the case.

20 Q. So your criticism of the MIT here is not that they

21 needed cell site analysis to ascertain where Mrs Nelson

22 was that weekend, but just, as it were, to have

23 something present or available if and when it was ever

24 to be used. Is that done in every murder, Mr Ayling? I

25 don't know.

 

 

116

 

1 A. It is done in a high number of murders and it depends on

2 the circumstances, Mr Egan. Certainly in my role of

3 supervising murder investigations I would always have

4 a discussion with the SIO in relation to what their

5 thoughts and actions were going to be in respect of this

6 particular area.

7 Q. I mean, doesn't a sensible and proportionate approach

8 have to be adopted? For example, Mr Nelson tells the

9 MIT where they had been, where they went to, enquiries

10 are made with the Garda Siochana, which is a sensible

11 thing to do because the Republic of Ireland is

12 a sovereign state; yes? You would agree with that,

13 I suppose?

14 A. Yes.

15 Q. Enquiries are made, in fact, information comes from

16 Nuala McCann. It is not the MIT's fault that

17 Dr O'Hagan -- information takes longer, but in those

18 circumstances then, bearing in mind that she is murdered

19 in a terrorist attack, surely it is just

20 disproportionate to go further?

21 A. In an attack like this, and particularly a terrorist

22 attack, the opportunities to obtain evidence are going

23 to be rarer perhaps than most other occasions because of

24 the precautions that terrorists take to avoid detection.

25 You, therefore, need to take every opportunity to secure

 

 

117

 

1 evidence that might be available to you.

2 In relation to the general point, all victimology

3 enquiries are done in the interests of providing

4 investigative leads which will point to the offender;

5 the offender that can be prosecuted with admissible

6 evidence.

7 In the particular case you mention, I'm sure that

8 Mr Nelson did his very best to recall exactly where they

9 were at any one time, but he is unlikely to be accurate

10 in the circumstances to the precise minute and time.

11 Mr Nelson, I think -- and the family who travelled in

12 the car, I think they stopped once on the way out to

13 their holiday home and once on the way back. If cell --

14 if Mrs Nelson had used her phone at either of those two

15 locations, the cell site analysis would have given you

16 the exact time that the mast picked up that call and it

17 would have given you the opportunity at any future date,

18 if it were relevant, to indicate that anyone you

19 suspected may have been involved in targeting her was

20 also in that exact location. That might prove

21 evidentially very powerful.

22 I know it certainly did in a certain case in Kent

23 that involved one of the largest cash robberies, that

24 the cell site analysis was a very significant feature.

25 Q. I'm sure the Panel are well aware of cases where cell

 

 

118

 

1 site analysis has been very useful, Mr Ayling, but an

2 investigating officer in circumstances such as this has

3 to make a judgment on what is necessary, does he not?

4 A. That goes with the territory of being the officer in

5 command, Mr Egan.

6 Q. And in those circumstances the bomb was almost certainly

7 planted on her driveway, wasn't it?

8 A. There is a high probability that that was the case, but,

9 again, one cannot be certain about that. One must keep

10 an open mind.

11 Q. One must always keep an open mind, but your forensic

12 scientist who looked at it gave that as his opinion, did

13 he not?

14 A. I can't recall whether he did.

15 Q. Well, I'll give you the reference.

16 A. Which forensic scientist?

17 Q. I don't know, but the person from LGC who made

18 a forensics report to the IAT -- reference 4555 of

19 that -- seemed to be working on the assumption that it

20 would have been a timer of 60 minutes and perhaps,

21 Mr Ayling, addressing the unreality of anybody planting

22 an undercar device on a car somewhere in Ireland for

23 someone to travel back and then stand outside someone's

24 front door for goodness knows how long. The fact of the

25 matter is that was most unlikely, isn't it, almost at

 

 

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1 the outer limit of possibility?

2 A. I don't think the outer limit I would be happy with, but

3 I would say the highest probability was that it was

4 placed underneath the car at the home address.

5 Q. Now, another thing you were giving evidence about was

6 enquiries into Mrs Nelson's clients, and at 6.3.7 of

7 your report, RNI-606-008 (displayed) -- you were asked

8 about this yesterday:

9 "Her clients may also have assisted the MIT ..."

10 6.3.7, please:

11 "... to build the victimology profile and establish

12 if her work in their case contributed to the attack."

13 May I suggest, please, Mr Ayling, that this is box

14 ticking of the most obvious type, isn't it? Can you

15 just consider that for a moment with the following

16 information about her clients: Client number 1,

17 Breandan Mac Cionnaith, the "Man Without a Future";

18 client number 2, I put in parenthesis, the Garvaghy Road

19 Residents Coalition; client number 3, Colin Duffy.

20 How much more information about Mrs Nelson's clients

21 did the Murder Investigation Team of this terrorist

22 murder need?

23 A. I'm not sure I'm following your point. I mean, you seem

24 to have made my point that those were three very

25 significant clients that might have assisted the

 

 

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1 victimology profile.

2 Q. But the victimology profile amounts to this, doesn't it,

3 on that analysis: that she was, sadly and tragically,

4 a hate figure for Loyalists and, as a result,

5 susceptible to this kind of terrorist attack?

6 A. The victimology profile gives you an opportunity to look

7 far deeper into that issue, Mr Egan. Why in particular

8 was she targeted? Why was the attack on this date?

9 Q. Yes.

10 A. Well, we don't know the answers to those questions.

11 Just to say generally she was a hated figure amongst the

12 Loyalist community I don't think advances you far.

13 I think pursuing a victimology line of enquiry enables

14 you to unpack that with --

15 Q. What other client --

16 A. -- with a clarity that would enable you to pursue

17 perhaps other investigatory leads.

18 Q. Yes, but what other clients would you have identified in

19 those circumstances, Mr Ayling?

20 A. I don't know the full list of her clients, Mr Egan.

21 I do understand there were some pretty high profile ones

22 on there. But the ones you have mentioned are the ones

23 I think that spring readily to mind, in particular --

24 particularly Mr Mac Cionnaith, as he had later, of

25 course, given some information to the Murder

 

 

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1 Investigation Team which he felt could possibly explain

2 why she was attacked. And that question of why, of

3 course, is exactly the reason for pursuing the

4 victimology line of enquiry.

5 Q. And that's one of the reasons, is it not, why the Murder

6 Investigation Team, consistent with adopting a sensible

7 and open minded approach, have to look carefully and

8 research carefully any intelligence they get in relation

9 to her murder. You would agree with that, I think?

10 A. Yes, of course.

11 Q. And if all the intelligence in relation to her murder

12 indicates what one might have concluded with a high

13 degree of probability anyway, that she was murdered and

14 targeted by Loyalist terrorists, then Mrs Nelson's

15 lifestyle and lifestyle enquiries will merely tend to

16 confirm that, won't it?

17 A. No, because, Mr Egan, unless you look and explore all

18 the information that may be available to you, you are

19 not going to know what you don't currently know.

20 As I gave in my original evidence, I feel that if

21 you had pursued a victimology line of enquiry, that

22 would have opened up avenues which the investigation

23 team would be bound to explore.

24 Q. Now, as against this, one of the reasons I emphasise --

25 you obviously don't accept this, Mr Ayling -- we will

 

 

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1 move on -- why the Murder Investigation Team have to be

2 sensible and proportionate is because this is something

3 in the particular circumstances of this murder that has

4 to be approached with great sensitivity, didn't it?

5 A. I acknowledge that, Mr Egan, yes.

6 Q. And one can see -- and this is no criticism in any way

7 of any member of Mrs Nelson's family, who had to bear

8 their grief, but one can see that the Murder

9 Investigation Team's task in relation to this was not

10 easy?

11 A. I acknowledge such a situation.

12 Q. And moreover, a sensible and experienced investigative

13 officer will not want to alienate half the community --

14 I put that rather imprecisely -- a substantial part of

15 the community by making what would be construed as

16 ham-fisted and insensitive enquiries which were

17 perceived to be unnecessary?

18 A. Well, one would hope they wouldn't go about it in

19 a ham-fisted and insensitive way.

20 Q. You see, one of the things that you mention about, well,

21 cell site analysis, we would have to get her telephones,

22 you know perfectly well that would not have been

23 welcomed from the family, don't you? You know that from

24 the facts?

25 A. Yes, I do.

 

 

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1 Q. So we take that as something that was to happen. You

2 said yesterday, I think, that, well, you don't always

3 have to do these things in this way. There is

4 telephones. I'm not suggesting one misleads. Do you

5 remember saying that?

6 A. Yes.

7 Q. But you would presumably try without misleading the

8 family. In this particular case -- and again, we make

9 it clear, as we have done to my learned friend on behalf

10 of Mr Nelson, that this is no criticism, but it is

11 right, is it not, that Paul Nelson had asked for an

12 assurance from the Murder Investigation Team about

13 telephones with precisely this in mind? You are aware

14 of that, aren't you?

15 A. I'm not sure in what terms that assurance was sought. I

16 am aware that there were conversations where Mr Nelson

17 had asked if enquiries had been made.

18 Q. If the family were looking for assurance and would have

19 regarded an investigation into the telephones as

20 intrusive, as I suggest they would have done, you could

21 not have done it without misleading them, could you,

22 unless you didn't answer their questions or misled them?

23 A. My argument was not under any circumstances, in these

24 circumstances or others, to mislead anybody, Mr Egan.

25 I think the facts of the matter were that there was,

 

 

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1 I think, a mobile phone attributed to Mrs Nelson, which

2 continued to be used after her death. Who had that

3 mobile phone, Mr Egan?

4 Q. I'm sorry?

5 A. Who had 1it.

6 Q. I'm sorry, you said, Mr Ayling?

7 A. Mr Egan, who had the mobile phone?

8 Q. I'm not going to answer your question, largely because I

9 do not have the reference.

10 A. Because we don't know.

11 Q. But in relation to getting information from mobile

12 phones or interrogating perhaps without consent, you

13 said that Mr Kinkaid's concern about restraints was not

14 a bar. You can always go round these things?

15 A. I didn't say you can always go round them.

16 Q. All right, those are my words.

17 A. I think other people have given evidence in support of

18 that same position. I think that was the evidence given

19 by Mr Humphreys as well.

20 Q. But would you agree in normal circumstances that the

21 restraints and balances on these matters are there for

22 a reason and a reminder for investigating officers,

23 police officers, that they haven't got carte blanche?

24 There is a degree of restraint required?

25 A. There is a necessity to advance an investigation to find

 

 

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1 the perpetrators of a crime. There is well proven

2 avenues that prove very fruitful in doing that in

3 relation to telephones. Mrs Nelson had been targeted,

4 she had been threatened, received numerous threats in

5 the past. Some of those threats came in by telephone.

6 Q. Sorry, Mr Ayling, I was just asking for a reference.

7 I turned my back on you. It was rude of me.

8 Now, I haven't got my reference for PL71, but you

9 are probably well aware of the one I mean?

10 A. What was the content of it, Mr Egan?

11 Q. It was Mr Kinkaid's decision about Mrs Nelson's

12 telephone.

13 A. Yes, I'm aware of it, yes.

14 Q. I will have the reference in a second, I apologise. But

15 I'll move on, if I may, because I think we are familiar

16 with it.

17 The decision Mr Kinkaid made in relation to that

18 mobile phone, or those telephone records, was within the

19 judgment, the range of judgment, that an investigating

20 officer, senior investigating officer, was entitled to

21 make, wasn't it?

22 A. The investigating officer has a responsibility to make

23 judgments all the time, yes.

24 Q. And his decision, sir, was within the range of judgments

25 which a competent SIO, properly applying himself, was

 

 

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1 entitled to make; would you agree?

2 A. He was entitled to make it. Whether he was wise to make

3 it is another matter.

4 Q. Perhaps, Mr Ayling, what you mean to say is whether you

5 would have made it is another matter. But it is

6 a judgment he made, bearing in mind what he knew about

7 the case and the particular circumstances of this case.

8 And he was entitled to make it, wasn't he, to be fair?

9 A. He was entitled to make all judgments, he was the senior

10 investigating officer. I'm happy with the point.

11 THE CHAIRMAN: Are you saying, Mr Ayling, it was an error of

12 judgment or not?

13 A. I'm saying that it closed a possible avenue, sir, that

14 may have provided an opportunity for the investigation

15 team to look at other matters. The phone -- my position

16 is that it would be normal to look at the telephone

17 contact with a victim in the previous two months, and

18 I believe that in this case it is still valid.

19 MR EGAN: I want to ask you about one or two answers you

20 gave yesterday about the comparison between the murder

21 of Mrs Nelson and Earl Mountbatten and Airey Neve all

22 those years ago. I think the example was put by

23 Mr Phillips in an effort to be helpful, and you dealt

24 with it.

25 You said the cases were distinct because the victim

 

 

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1 was targeted for some reason, and it is necessary to

2 make enquiries as to what those reasons might be. That

3 was distinct from the unfortunate other deceased, and

4 the question I have to ask about that is: how do you

5 know? On your approach, how do you know in those

6 circumstances why Earl Mountbatten was targeted or,

7 indeed, Airey Neve was targeted?

8 A. Well, the very high profile of those individuals as

9 national figures. But it isn't my position that

10 victimology has no part to play at all. Indeed, I know

11 little of the details, shall we say, of

12 Earl Mountbatten's assassination but clearly he was

13 involved in making arrangements to travel to and from

14 the place in the Irish Republic where I believe he

15 stayed on regular occasions. There would have been

16 people that he dealt with. It is not to say that

17 victimology had no part to play at all, but I think the

18 distinction was made in the fact that he was probably

19 targeted in all probability because of his association

20 with the Royal Family.

21 Q. Yes, but probably. You see, this is what I have

22 a little difficulty with and I want to ask you about:

23 probably. Rosemary Nelson, tragically, was probably

24 targeted because of her high profile as a Republican

25 solicitor and her high profile clients.

 

 

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1 Earl Mountbatten was probably targeted because he was

2 a member of the Royal Family. Airey Neve was probably

3 targeted because he was Secretary of State for Northern

4 Ireland. What's the difference?

5 THE CHAIRMAN: Shadow, wasn't he?

6 MR EGAN: I think, sir, you are right, yes. I'm very sorry.

7 I'm corrected. Probably, perhaps, slightly lower degree

8 of probability, I don't know, if you are a shadow

9 secretary for Northern Ireland.

10 Now, in those circumstances, as I understood your

11 evidence yesterday, you seemed to be making

12 a distinction. Are you saying that the cases are the

13 same?

14 A. I'm not, sir, no. I think from -- in Mrs Nelson's case

15 that she had -- there was information to say that she

16 had been dealing with collusion issues, as she believed

17 it, with the security forces. It was said that she had

18 a file on such matters. She had been to the

19 United States and she had given evidence to a Senate

20 committee and she was seen to make references to a file,

21 a file that I understand has never been recovered. She

22 was representing people from the Garvaghy Road Residents

23 Coalition over several issues, some of which --

24 Mr Mac Cionnaith, we have spoken about -- suggested that

25 there were issues that she was dealing with that might

 

 

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1 have made her a target.

2 There was also the suggestion, of course, that it

3 was alleged that she had been having an affair with

4 a particular person. All those issues are relevant if

5 you are seeking to find a line of enquiry which will

6 leave you -- lead you ultimately to the person who

7 perpetrated this atrocity.

8 Q. Is it really, Mr Ayling, a serious hypothesis put

9 forward by you that this unfortunate woman was killed by

10 Republicans?

11 A. I cannot go into the Special Branch intelligence in this

12 open meeting. Perhaps we can revisit that in the closed

13 session.

14 MR EGAN: PL71 is RNI-616-789 (displayed). Thank you,

15 Mr Savill. That was the document I was asking you

16 about.

17 Sir, I'm mindful that you may wish to take a break

18 this afternoon. Is that a convenient moment?

19 THE CHAIRMAN: Yes, we will have a quarter of an hour break.

20 We will make it half past three.

21 (3.16 pm)

22 (Short break)

23 (3.37 pm)

24 THE CHAIRMAN: Yes, Mr Egan?

25 MR EGAN: Sir, with your leave. I wanted to ask you

 

 

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1 questions about Operation George and the first thing

2 I would like to do, please, is to -- give me one moment.

3 (Pause)

4 It was a good idea to try to get covert

5 conversations from suspects, wasn't it?

6 A. Yes.

7 Q. In relation to any suspect where there was viable

8 intelligence that they were involved, an undercover

9 operation such as this was perfectly justified?

10 A. Yes.

11 Q. This kind of operation will inevitably produce huge

12 tracts of material, which is not of utility to the

13 murder investigation?

14 A. Yes.

15 Q. The MIT kept under covert observation suspects who were

16 outside Northern Ireland?

17 A. Yes.

18 Q. But Northern Ireland and its particular framework and

19 set-up, as far as terrorism and the covert investigation

20 of it, made it well nigh impossible to do so within the

21 Province?

22 A. Some aspects, the deployment of undercover officers,

23 yes.

24 Q. To that extent, the suspects who were the subject of

25 Operation George were largely those who provided the

 

 

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1 opportunity by leaving the Province?

2 A. Yes, (redacted)

3 (redacted).

4 Q. Yes. Well, the third person named in the early

5 intelligence didn't leave the Province, did he?

6 A. Not as far as I understand, no.

7 Q. And he would, had he done so, have been a perfectly

8 legitimate target; not just legitimate, a prudent and

9 proper target?

10 A. Yes.

11 Q. Were you aware that in fact enquiries were made (redacted)

12 (redacted)

13 (redacted)?

14 A. I didn't see that in the document --

15 Q. If there is any problem about that, we can help the

16 Panel about it and I needn't worry about you. But it

17 wouldn't surprise you, I would suspect, that they would

18 have been keen to do so if at all possible?

19 A. I have said so, I have great admiration for the

20 innovation deployed by the Murder Investigation Team and

21 Mr Port in particular in the way it was managed.

22 Q. And as far as Operation George and any product that

23 arises out of it is concerned, it shouldn't be viewed in

24 isolation from other information, for example, the

25 intelligence -- yes? -- or any evidence that comes

 

 

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1 within the --

2 A. It should be viewed as a whole.

3 Q. Because -- I don' think there is going to be anything

4 between us on this -- it would be the worst mistake in

5 the world to ignore the other intelligence, in the same

6 way that it would be the worst mistake in the world, as

7 you have told us, to ignore what's in Operation George?

8 A. Yes, that's behind my comment about the reassessment

9 taking into account everything.

10 Q. And the purpose behind Operation George, Mr Ayling --

11 and I have to be a little careful here because it is set

12 out in an intelligence coordinating meeting, which is

13 redacted and perhaps not of utility, on 3 October. But

14 I think you make reference to it and you know it very

15 well.

16 The evidence went beyond -- and I'm being careful

17 here to protect methodology -- (redacted)

18 (redacted)?

19 A. Yes.

20 Q. Yes.

21 A. I would, yes.

22 Q. I'm happy to hear you make that concession and that must

23 be obvious because in an operation like this it may very

24 well be that it might be something -- an innocuous slip

25 by somebody that might provide the most cogent evidence

 

 

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1 and the most cogent lead?

2 A. It is a possibility, yes.

3 Q. It is certainly a possibility and, for example, if

4 people were particularly on their guard about talking

5 about the murder of Mrs Nelson, they may drop their

6 guard on certain other matters --

7 A. Yes.

8 Q. -- connected with it?

9 A. Yes.

10 Q. Which provide intelligence and, indeed, evidence?

11 A. Intelligence that could be turned to evidence, yes.

12 Q. Turned to evidence. Or I suppose, if it was covertly

13 recorded, prima facie evidence depending on the --

14 A. Yes.

15 Q. Thank you very much. To that extent sometimes the

16 smallest things can be of vital importance, which is one

17 of the reasons why listening to these matters is

18 doubtless such an onerous and important task?

19 A. Yes.

20 Q. Now, in those circumstances I would like to just examine

21 with you, please, one or two matters that arise in your

22 report in relation to Operation George, because one of

23 the matters you raise in it -- and you were asked about

24 it yesterday -- is -- well, look at RNI-610-055

25 (displayed). Thank you.

 

 

134

 

1 I raise this matter as a question of accuracy. At

2 10.13.22, you have already made reference to this here,

3 apparently two portions of transcript, only the

4 Government would know of her car being parked on her

5 driveway for 40 minutes that lunchtime?

6 A. Yes.

7 Q. You have that bit?

8 A. Yes.

9 Q. And also a transcript -- on the face of it an X2

10 reference for a different date:

11 "I asked why he thought he said that ..."

12 And he explained that:

13 "... Nelson never went home at lunchtimes and on

14 this day she did. She pulled into her drive and parked

15 her car and went inside for 40 minutes and then when

16 pulling away from her driveway the bomb went off."

17 Now, can I put just this to you, please: that those

18 come from the X2 documents, those two?

19 A. Yes.

20 Q. In fact, firstly there aren't two, there is only one.

21 There is only one thing being said. It is referring to

22 the same conversation and two people's account of it.

23 I'm sure you will be able to check that in due course

24 overnight.

25 A. Yes.

 

 

135

 

1 Q. Secondly, it is not actually a recording, it is a log

2 made subsequently by someone who took a decision not to

3 record it on instruction. And, again, you will be able

4 to check that.

5 A. It is a summary.

6 Q. Yes, it is a summary of what he is meant to have said,

7 admittedly two different summaries by two different

8 people --

9 A. Yes --

10 Q. -- of the same conversation.

11 A. But you said somebody who was being given instructions

12 to leave it at that time.

13 Q. Well, somebody had been given -- perhaps I ought to be

14 careful what I say. It wasn't recorded. So it is

15 a summary, not a recording?

16 A. So it is not a summary of a recording?

17 Q. No. As far as I know, there is no recording. In fact

18 I know there is no recording because the summary

19 says so.

20 A. Then, I'll take your word for it, Mr Egan.

21 Q. I think we can probably do it that way and if I'm wrong

22 about it, Mr Ayling, I shall eat humble pie in due

23 course. But at any rate, I think it is important, as

24 I'm sure you will agree, to have that part of it

25 accurate: that that is one conversation on 16 March,

 

 

136

 

1 I suggest?

2 A. 16 March 2000.

3 Q. 2000. For your reference, 2.10 pm. And may I say this:

4 it is important to have it accurate because we need to

5 assess it, but you have got to look at the summaries;

6 you could easily be misled by looking at the summaries.

7 I will merely say that by way of mitigation for you.

8 At any rate, in relation to other matters, there are

9 some matters that I can't ask you about in this session,

10 as I think you will know.

11 A. Yes.

12 Q. But can I just go through one or two that I can, in an

13 effort, again -- and I hope perhaps a little more

14 cohesively -- to do as much of this hearing in open as

15 we possibly can.

16 A. I understand.

17 Q. With the Panel's leave, could you look, please, at

18 RNI-910-165 (displayed)? 1 October 1999; yes?

19 A. Yes, I have it, sir, yes.

20 Q. Can we go, please, to RNI-910-167 (displayed)? Now,

21 this is somebody -- not one of the two suspects --

22 talking and there is reference to the murder of

23 Mrs Nelson. Do you see that?

24 A. Yes, I can see that, sir, yes.

25 Q. You may be familiar with this transcript or you may

 

 

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1 not be?

2 A. I don't recall seeing it.

3 Q. Right.

4 A. Certainly not recently.

5 Q. No.

6 A. Was this part of the documentation, sir --

7 Q. I think it has only just been scanned in, Mr Ayling, but

8 having said that, it is part of the Operation George

9 product that you have had access to and been able to

10 consider:

11 "That solicitor, and I'm sure you've heard about

12 her, Rosemary Nelson, the famous solicitor --

13 "Yes, long hair, sort of.

14 "She had her face all scarred. That was from

15 a bomb, which she was planting that went off

16 prematurely."

17 An echo there of the "Monster Mashed" pamphlet in

18 fact, you will remember probably --

19 A. I recognise the link.

20 Q. "Truth never comes out in the press.

21 "Who killed her?

22 "It was a joint effort between two different

23 paramilitary organisations."

24 Now, just answer this, please: are you aware,

25 looking at the intelligence in this case, with your

 

 

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1 knowledge of it -- and we may look at it further in

2 closed session -- is that a significant thing for that

3 person to have said?

4 A. Which bit, sir?

5 Q. "It was a joint effort between two different

6 paramilitary organisations"?

7 A. Who is speaking?

8 Q. I can't say, Mr Ayling, you must know that. And it is

9 somebody --

10 A. Yes, but I'm simply saying it is difficult for me to

11 accurately answer your question. On the face of it, it

12 seems that I can agree your question, but I do need to

13 know the circumstances of the recording. I don't recall

14 it. I haven't seen it before. I certainly haven't seen

15 it recently.

16 Q. No.

17 A. And it is a very small extract. As we agreed, I think,

18 there are 50,000 hours of tape recording. There is

19 a heck of a lot of --

20 Q. I don't want to make cheap points, Mr Ayling, but "I did

21 it" wouldn't take long to say either. The size of it is

22 less important than what it contains.

23 Look at what it says: Two different paramilitary

24 organisations. The normal is the British Government or

25 the British Government and the UFF. Now, on the basis

 

 

139

 

1 that the British Government is not a paramilitary

2 organisation, that's quite a significant thing for

3 somebody to say, isn't it?

4 A. It is, but that doesn't stop me attaching a high degree

5 of relevance to who said it in what circumstances.

6 Q. We can explore that in closed session, thank you.

7 Could you look again at another short extract?

8 Perhaps we can be quicker with this one, RNI-916-057

9 (displayed). This is an extract and the person involved

10 is saying -- I won't identify who that person is:

11 "Suspect groups to be the Red Hand Defenders and the

12 Orange ... The Red group are ex LVF, more extreme.

13 [Blank] says it is good as LVF can do what they want and

14 the Red Hand Defenders claim it."

15 Now, that's quite a significant piece of

16 information, isn't it?

17 A. Yes.

18 Q. And could be important because although, as you say, the

19 RHD might be seen as a flag of convenience to the extent

20 that one has to be careful about identifying them, what

21 seems to be being said here is that the LVF can do what

22 they want and the Red Hand Defenders claim it, which

23 might have an important implication in the murder

24 investigation into Mrs Nelson, mightn't it?

25 A. It is very limited in what's written here. The person

 

 

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1 says:

2 "... its as good as the LVF can do what they want

3 and the Red Hand Defenders claim it," well, we know

4 that's the case, we know that that was the approach of

5 the LVF, so that takes us not much more forward. And

6 I think later on in the same conversation evidence in

7 document 563, the same person who is talking goes on to

8 say, "Don't believe everything you read in the

9 newspapers" to the person she is talking to. So it is

10 a danger of taking one thing in narrow isolation.

11 Q. Of course, if the person was connected with one of the

12 suspects, the fact that the suspect -- and if there was

13 other material to show that some of the suspects in this

14 case were connected with making that claim of

15 responsibility, it could be a significant thing,

16 couldn't it?

17 A. It is certainly something that you would take into

18 account when you did any sort of reassessment as to what

19 factors weighed in the balance to implicate or

20 eliminate, and certainly I accept that there is an

21 interpretation that you can put on this that would weigh

22 it in the balance of implicating.

23 But it is narrow, it is open to other

24 interpretations and there is more to this than we have

25 seen in that very small summary. And the later,

 

 

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1 additional piece of information that the same person who

2 is speaking goes on to say, "Don't believe everything

3 you read in the papers," is perhaps an indication that

4 they didn't support the statement. But I have accepted

5 that it is capable of different interpretations, as

6 indeed, of course, are most things.

7 Q. Well, that's right. That's why in fact, taking these

8 things as one way or the other, is actually rather

9 dangerous. You have to keep an open mind unless, as

10 Mr Port says, someone actually disproves their

11 involvement?

12 A. Well, you make my point, sir. I say you have got to

13 keep an open mind. You have got to approach this as

14 testing your hypothesis and not merely looking at it in

15 a very selective way to support your hypothesis.

16 A central point of my argument, sir.

17 Q. Now, you have made reference to this yesterday. Look,

18 please, at RNI-916-058 (displayed). No question but

19 that one of the suspects did mention or did -- I say

20 confess -- make admissions in relation to this murder.

21 But here is an entry -- read it, please -- on

22 24 March --

23 A. Yes.

24 Q. -- where he talks about --

25 A. Yes.

 

 

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1 Q. -- denying it.

2 A. This says that he denies it.

3 Q. Thank you.

4 A. Have we finished with this, sir?

5 Q. Yes.

6 A. We can't possibly have done because he is only denying

7 it because he is recounting what he said to the police

8 when he was arrested. It doesn't count for denial.

9 This is this is only a very edited extract. The full

10 extract would reveal that that denial is in the context

11 of telling somebody else that he denied it to the

12 police. It is not a denial of committing the offence:

13 this is more supporting the point I made yesterday.

14 This is not a denial. This is him recounting what he

15 said to the police officers that interviewed him about

16 the offence, when he was first arrested.

17 Q. Well, we will have revert to that transcript for you in

18 relation to that.

19 A. It is a very important point, sir, because this

20 demonstrates the point I'm trying to make: you have got

21 to look at these things in the whole. You can't take

22 them in isolation. Taking one narrow point, which is

23 something that, sadly, I feel that the MIT often did, is

24 to ignore a greater context that may allow you to make

25 other interpretations of what is said. This is a case

 

 

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1 in point. This is not a denial.

2 Q. Well, have a look at a document at RNI-916-060, please

3 (displayed), shortly thereafter. Go to RNI-916-061

4 (displayed):

5 "[Blank] has nothing to do with the Rosemary Nelson

6 murder. I know that for a fact."

7 A couple more bits of:

8 "Well, I know, he is with them politically. [The

9 same person under the redaction] doesn't have a baldy

10 who done that."

11 One of the suspects?

12 A. One of the suspects is saying that, yes. What

13 interpretation are you putting on that, sir?

14 Q. On one view, sometimes, if one was looking at the

15 transcript -- you see, this has to do with the partial

16 point, Mr Ayling, because you criticised yesterday,

17 Mr Port was saying that you are partial.

18 A. Yes.

19 Q. But in this, you have got somebody saying that he

20 positively does know that somebody had nothing to do

21 with it, and I don't think -- I will be corrected if I'm

22 wrong -- that that appears in your report.

23 A. This, again, is a fuller transcript and there are many

24 of them. This is capable of a number of

25 interpretations. The interpretation you have placed on

 

 

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1 it is a credible interpretation.

2 Q. Thank you for that.

3 A. It is permissible, but also there are certainly other

4 interpretations because the person they are speaking

5 of -- who we shouldn't name, and need to take care that

6 they can't be identified in what I say -- but the person

7 they are speaking of does claim, the intelligence would

8 suggest, attacks without having any involvement in them.

9 And this may be a reflection that one of the defendants

10 who said this knows that as a fact.

11 Q. Of course. One could construe it in any number of ways,

12 but as you said just now -- and I don't know why it is

13 necessary for you to add to it -- it is a perfectly

14 credible, reasonable reading of that, that if someone

15 does know someone definitely hasn't done something, they

16 either did it themselves or they know who did?

17 A. Well, there is another interpretation that is equally

18 credible that can be placed on that same thing. It

19 can't lead you to conclude that; it is one possible

20 explanation. There are other explanations, especially

21 when you look at the wider context. The wider context

22 is that the person they are speaking about is apparently

23 well-known for making claims of attacks that he has

24 nothing to do with.

25 Q. All right. So what's between us here is a question of

 

 

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1 construction. It could be taken one way, it could be

2 taken the other?

3 A. It can be.

4 Q. Let's look at a document and see how this one should be

5 taken: RNI-916-063 (displayed). One of the suspects

6 talking, 4 August 2000:

7 "... says the RUC have a special training ground

8 over here. He says its the same for the UDR and

9 Royal Irish Regiment. He says the Provies are top

10 bombers, like, and talks of them setting booby traps.

11 "The Loyalists have the same quality, like I say.

12 [Someone], he is the best, he is definitely the best,

13 everyone knows."

14 Do you know who is referred to underneath that

15 transcript?

16 A. I do, yes.

17 Q. Yes:

18 "I don't blame him for not fucking bothering, you

19 know. The last favour he done, it was for the UVF

20 (inaudible). He gave them a car bomb. The bastards

21 blew up a Prod, killed him. He was dealing in drugs.

22 He just tramped on their toes. [He says] they assured

23 me it was for a top Provo like. Of course, he says I

24 didn't ask, it is not my fucking business to know."

25 He says that's the only reason:

 

 

146

 

1 "I'd ask the [blank] for something."

2 And that's a reference to the same person, isn't it?

3 A. I believe so.

4 Q. "Explain like that, plain and simple."

5 It is this bit I want to draw your attention to,

6 please:

7 "I just want it so I would set it somewhere or stick

8 is to something and I just want a wee box ... talks that

9 all right wee man. That's the way you would get it.

10 Just with a package/packet there ... don't even have to

11 switch the electric on it. There's no risk at all.

12 Just flick the power onto the remote. Then remote the

13 power to go on to the bomb. That's how good he is like.

14 "What do you do ..."

15 Then he refers to containers, which we may want to

16 remind ourselves:

17 "Milk cartons, milk bottles, packets of cigarettes,

18 anything.

19 "A milk carton, a breeze block. Breeze blocks are

20 brilliant."

21 That's one of the suspects talking, isn't it?

22 A. Yes.

23 Q. And when he refers to a "wee box", he is clearly

24 referring to some sort of bomb, isn't he?

25 A. That's a fair indication.

 

 

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1 Q. Mr Ayling, that's the only interpretation, I suggest, of

2 the penultimate paragraph on that page.

3 A. Yes.

4 Q. Now, would you agree with me that if one suspect talking

5 to somebody about the man who we think, or we suggest, I

6 should say, is the bomber and there is credible evidence

7 that he is the bomber, then that is a conversation,

8 albeit it takes place a year later, over a year later --

9 that is a conversation of tremendous importance, would

10 you agree?

11 A. Well, I need to pick up you earlier that I have not

12 accepted there is credible evidence that that person is

13 the bomb maker. I have certainly accepted there is

14 credible intelligence.

15 Q. Credible intelligence?

16 A. But as far as I know, no evidence.

17 Q. Then come on to deal with the question, please.

18 A. That person we are speaking about is a well-known bomb

19 maker, so the intelligence would lead us to believe.

20 The person who is having this conversation knows that to

21 be the case and I think it is a feature of several of

22 the surveillance tapes that they often refer to that

23 individual in terms of making devices, and they go into

24 great detail about them.

25 I think over the page, as you have said, they talk

 

 

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1 about building bombs into breeze blocks. Later on, they

2 talk about other things that they might have done,

3 including how they might have been deployed at times.

4 There is --

5 Q. Mercury tilt switches.

6 A. That's pretty common knowledge as to how a bomb is

7 activated. Again, the point is -- and I'm happy to

8 acknowledge it -- that it does weigh in this balance,

9 when you stand back and look to see what you have as

10 a product, and it can be weighed in the scale that

11 implicates those individuals. But it is not strong in

12 that weighting and it is a question when you do the

13 reassessment of how strong the weighting is on the other

14 side, because it is certainly a feature that the person

15 who is speaking, one of the defendants, does know this

16 person well and the context of the surveillance is that

17 they are often talking of that person's abilities,

18 sometimes in quite a lot of detail.

19 Q. Yes.

20 A. It doesn't actually take you to saying that it links

21 them to this particular bomb that concerns us.

22 Q. Just before we leave it, please -- and this is the

23 suspect talking now, not about someone else, but talking

24 about himself:

25 "I just want it so I could set it somewhere and

 

 

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1 stick it to something and I just want a wee box."

2 That's the suspect talking. He is not actually

3 talking about the bomb maker. I suppose he is, because

4 he is going to get the wee box or has got the wee box

5 from the bomb maker. But that's him, you see, it is

6 a connection, isn't it?

7 A. Yes, and we can see that he is talking to -- I think one

8 of the UC officers, isn't it?

9 Q. Yes.

10 A. And obviously the UC officer is -- indicated above,

11 trying no doubt within the permissible parameters of the

12 law to spur him into speaking about the subject that we

13 want to. So, you know, it isn't surprising that he has

14 framed it in that way. And I have said, Mr Egan, that

15 this is one of the factors that you could weigh in that

16 balance.

17 Q. Yes --

18 A. But it is capable of more than one interpretation, as we

19 have agreed everything is.

20 Q. But you see, in your report, you are at pains to point

21 out where there is material that you say should cause

22 them to re-appraise their --

23 A. Yes, much stronger evidence that is directly relevant to

24 the attack on Rosemary Nelson, in particular the one

25 where they get their facts wrong about the fact that the

 

 

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1 attack happened when she came home for her lunch break,

2 spending 40 minutes at home. That's, to me, very

3 powerful on the elimination side because those facts are

4 clearly wrong.

5 Q. Yes, that's the one we looked at earlier, is it?

6 A. Yes.

7 Q. And we can see how that is recorded in due course as to

8 whether I'm right about that or not.

9 But do you think it might have been sensible,

10 bearing in mind this is presumably an impartial and fair

11 report if the other side was put, because after all you

12 did say in your report that, as far as you could see,

13 the only thing to come out of the Operation George

14 product was the admission that they were travelling

15 through the Kilwilke Estate?

16 A. Did I frame it in those terms, the only thing to come

17 out? Can you point to where I said that?

18 Q. I was almost certain that you did.

19 A. It is an important point to be accurate on. I'm happy

20 to look at my report and examine what I did say, if you

21 could point me to the page you referred to.

22 I mean, the general point I make is that the

23 indicators, taking the product as a whole, more tended

24 to eliminate than implicate. But I think you can only

25 reach that conclusion if you accept that there are

 

 

151

 

1 features that would implicate. But my conclusions were

2 that greater weight was attached to those that tended to

3 eliminate.

4 Q. Yes.

5 A. So I'm not entirely happy that I used the language that

6 you described.

7 Q. Well, I will have to come back on that. Yes, I'll move

8 on and come back to that, if I can.

9 But this particular part certainly doesn't feature

10 in your report, but you did read it, did you?

11 A. Yes.

12 Q. Look at RNI-916-085, please (displayed). This is

13 a conversation on 28 June 2000. Then over the page at

14 RNI-916-085 (displayed) -- that's right -- there is this

15 conversation talking about explosives and who he got it

16 from.

17 THE CHAIRMAN: RNI-916-086, isn't it?

18 MR EGAN: Oh, I'm sorry, sir, you are quite right, yes.

19 Now, do you see that?

20 A. Which part, sir, am I looking at?

21 Q. If you read from the top of RNI-916-086 (displayed)?

22 A. Yes.

23 Q. And I'll let you read it to yourself while I look up the

24 reference to the last point.

25 A. Read from the top of the page where it says:

 

 

152

 

1 "Say, it is A-A ..."?

2 Q. Yes.

3 A. (Pause)

4 Yes. Are you able to just remind me of the date of

5 that, Mr Egan?

6 Q. Yes, 28 June.

7 A. 19 ...?

8 Q. 2000.

9 A. 2000.

10 Q. Now, just answer these questions carefully because I'm

11 rather anxious not to offend the secure aspects of this.

12 The explosive he is talking about, (redacted)

13 (redacted)?

14 A. (Redacted)

15 (redacted)?

16 Q. Yes.

17 A. If it does refer to the same thing, and it likely does.

18 Q. I think we can probably just leave it there.

19 Now, in those circumstances, if that's right, that's

20 potentially quite an important piece of evidence,

21 isn't it?

22 A. In several respects, yes.

23 Q. Yes. And we know one of the respects and I certainly

24 don't want to ask you about it in open session.

25 However, here we are talking about possible evidence

 

 

153

 

1 against suspects and the connection between them?

2 A. The connection between them? Yes.

3 Q. And in those circumstances, if, for example, this

4 incident referred to took place shortly before the

5 murder of Mrs Nelson -- and you may be able to concede

6 that, that is what he is talking about?

7 A. The one we have just agreed that it seemed probability

8 (redacted)?

9 Q. Yes.

10 A. Yes, well before the murder of Mrs Nelson.

11 Q. It is evidence of a connection between the suspect and

12 the bomber, isn't it?

13 A. Yes, and I think there is other intelligence that

14 supports it.

15 Q. I was going to come on to that, but I needn't now, thank

16 you for that.

17 And to that extent, apart from supporting that

18 intelligence and perhaps supporting the accuracy of the

19 intelligence system, that specifically itself is an

20 important potential piece of evidence linking those two

21 suspects, isn't it?

22 A. It is important intelligence, if you could turn it to

23 evidence.

24 Q. Well, it is rather better than that, isn't it? It is

25 a conversation; this seems to be a transcript, subject

 

 

154

 

1 to admissibility?

2 A. It is a conversation recorded with who? Could you

3 remind me? What's on the previous page? I know it is

4 one of the documents that you kindly made available to

5 me. Unfortunately, I have got so many here, I can't

6 actually locate it at the moment.

7 Q. It is a conversation, I think, with an undercover

8 officer, as so much of this product is, and I think you

9 will probably find all of this product is. The point is

10 a simple one: that this is one suspect talking about

11 sourcing high explosive from the person who is the bomb

12 maker. And I merely ask you, please: is that or is it

13 not actually important evidence not only against the

14 bomb maker, but against the suspect? It shows an elicit

15 connection between them, one giving explosive to the

16 other.

17 A. Yes, and there is other intelligence that supports that.

18 Q. Right. And this is, of course, not somebody accepting

19 fulsomely on tape that they murdered Mrs Nelson, but it

20 is somebody attesting or giving evidence on tape that

21 they have received explosive from a person who is

22 believed, or there is credible intelligence that

23 a person is the bomber. Very important, I suggest to

24 you.

25 A. Very important, and corroborated by other intelligence.

 

 

155

 

1 Q. And some might think, Mr Ayling, a justification for

2 continuing with this careful examination of these

3 suspects?

4 A. Yes, of course, because it is one of the things that you

5 would take account of in any reassessment and you would

6 weigh it in that balance.

7 Q. But it doesn't feature in your report, does it?

8 A. Again, I make the point I did earlier: the report is

9 a summary and concludes that, in my view, when you look

10 at how that balance is weighted, the weighting is

11 heavier and more credible in relation to references to

12 the murder of Rosemary Nelson in the balance that says

13 eliminate.

14 Not every single thing that weighed in that balance

15 could be in the report otherwise it would be ten volumes

16 long because, as we have agreed, there is a lot of hours

17 of recording. And there are features of this that

18 indeed point away because of course the explosive used

19 in the Rosemary Nelson device was not PE explosive.

20 Q. Come, Mr Ayling, do you make that as a serious point?

21 A. Certainly, yes, because, you know, the availability of

22 explosives is an important feature, of course, and --

23 Q. So --

24 A. -- (Redacted)

25 (redacted)

 

 

156

 

1 (redacted)

2 (redacted)

3 (redacted).

4 And I think it is relevant when you look at this to also

5 bear in mind that the explosive used in the construction

6 of the bomb that killed Mrs Nelson was an entirely

7 different explosive.

8 Q. And is that the reason why it doesn't appear in your

9 report then? That you thought, "Oh, well, know, I won't

10 put this in because it is a different explosive"?

11 A. No, I think --

12 Q. The bomber --

13 A. I hope I explained that, you know, the report couldn't

14 be filled with everything that amounted to weighing in

15 either scale because it would be a very lengthy report.

16 I think the report fairly concludes my view that the

17 product of Operation George, at least by the summer of

18 the following year, had provided considerable product

19 that more weighted in the scales suggesting that these

20 targets had not been involved in Rosemary Nelson's

21 murder. That is not to say there wasn't references that

22 you should have properly considered in any reassessment

23 that weighed in the other way. And that would be

24 subject to a report and proper consideration that

25 I would have expected to see evidenced because this is

 

 

157

 

1 a very important feature of the investigation. And

2 I saw no evidence of it.

3 Q. I suppose -- and I hope this isn't a cheap point -- we

4 see no documentary evidence you have considered that

5 passage, Mr Ayling. I don't suggest you didn't, but you

6 see what I mean?

7 A. Not really, because the way that this was managed to be

8 thorough produced a very great deal of material, which

9 is still held --

10 Q. Did you read that passage?

11 A. What passage?

12 Q. The passage we have just looked at. Yourself? Did you

13 read it?

14 A. I think I probably did see this one, yes.

15 Q. And the "wee packet" didn't leap out at you?

16 A. A wee --

17 Q. "A wee packet". Forgive me, I'm talking about the other

18 one.

19 A. Yes. We have moved on from there, haven't we? We are

20 talking about something different.

21 Q. When you were looking at the one with the wee packets,

22 didn't that leap out of the page at you?

23 A. It didn't leap out of the page because it needs to be

24 weighed carefully in the balance. I mean, you must look

25 at this as what interpretations are capable, not just

 

 

158

 

1 what interpretations suit your hypothesis, because there

2 are other factors as well to be considered.

3 Q. Sorry, I'm just getting a reference. I'm sorry for

4 turning my back on you.

5 Now, I'm going to abstract these a little, I think.

6 You say, do you, that mercury tilt switches are common

7 currency and people would know about them?

8 A. I think people involved in these events would, yes.

9 Q. I mean, it is a feature actually -- look at RNI-910-122

10 (displayed) -- this is 30 August 2000. 1.22, this is

11 when they are watching the programme:

12 "The sound of the car engineer starting.

13 "Undercover officer: Not on the ignition."

14 And he is corrected, "Mercury tilt," by the suspect.

15 Presumably you say everybody would have known about

16 that. But presumably, if he had have said something

17 wrong, you would have replied there?

18 A. As I say, you have got to look at it in both ways. It

19 is a matter you would weigh in that scale.

20 Q. All right. Well, I'm quickly going to go through some

21 more of these, if I may. One on the 10 October,

22 I hope -- RNI-624-023 and RNI-624-024 (displayed).

23 Halfway down the page, about eight o'clock:

24 "Suspect went on to say the Real IRA was the IRA.

25 It was a fabrication ... went on to say the reason the

 

 

159

 

1 Real IRA as the IRA was ..."

2 And then said a conversation about the Orange

3 Volunteers becoming a organisation. I don't want to

4 paraphrase this too shortly, but I do want to get on.

5 The bit I want to refer you to is over the page at

6 RNI-624-024 (displayed). Take as long as you want to

7 read it, but halfway down the page, do you see,

8 "Robbie", it says, "inaudible":

9 "It is like going bankrupt then, is it?"

10 They are talking about:

11 "It is exactly the same, but all you do is when you

12 release a statement ..."

13 This is the suspect:

14 "... you pick a different county and your phone

15 call, and your statement releases ... and from the

16 brigade, brigade, staff of the Orange Volunteer Force

17 outside the county."

18 Robbie:

19 "Yes."

20 There is further conversation. It is actually

21 a feature of the claim for responsibility in this case

22 that it was made at 20.45?

23 A. Yes.

24 Q. (Redacted)

25 A. (Redacted)?

 

 

160

 

1 Q. (Redacted)

2 (redacted).

3 (redacted)--

4 A. We will return to this --

5 Q. We need to return to it. I think a phrase has been

6 made, I'm very grateful to my solicitor and my junior.

7 Well, I'm not going to trouble you with other

8 references about the connection between them and the RD.

9 And, indeed, there are other references on the bomber,

10 aren't there? Many references. I think you have

11 already accepted that with me?

12 A. Yes.

13 Q. Which show a close knowledge --

14 A. To the suspected bomber, yes. I don't accept that it

15 was established in any sort of fact. I do accept that

16 there is strong intelligence that points to that bomber

17 and also strong intelligence that points away.

18 Q. Yes. Strong intelligence that points away from the

19 bomber?

20 A. Yes.

21 Q. And that's something you will be able to help us in

22 closed session, is it?

23 A. Yes, I believe so.

24 Q. Thank you. Now, I think in those circumstances, rather

25 than take you through any more, I would just ask to you

 

 

161

 

1 look at one final one, RNI-624-033 and RNI-624-034

2 (displayed). This hasn't been very well redacted,

3 unfortunately. I merely mention that looking at the top

4 left-hand side of the page.

5 THE CHAIRMAN: It hasn't been properly redacted, this

6 document. Would this be a convenient moment to have

7 a short break?

8 MR EGAN: Yes.

9 THE CHAIRMAN: And then possibly -- I don't know -- how

10 quickly can a redaction be done?

11 MR PHILLIPS: I don't know. I didn't, I am afraid, see it

12 in its brief appearance. Maybe in fact it is not quite

13 such a bad redaction as everybody thinks.

14 THE CHAIRMAN: It is about three lines down on the left.

15 MR PHILLIPS: Right, thank you very much.

16 MR EGAN: I think, if I may warn everybody there is another

17 one -- we will sort it out over the break.

18 THE CHAIRMAN: If we have a quarter of an hour break, what

19 time will we finish in the open session, Mr Egan?

20 What's your estimate?

21 MR EGAN: I have been given fairly strict instructions and

22 I'm going to do my absolute level best to make sure that

23 we finish at an appropriate time.

24 THE CHAIRMAN: So that the stenographer can know, what is

25 your appropriate time?

 

 

162

 

1 MR EGAN: I certainly wouldn't envisage going beyond 20 to

2 six or quarter to six. I hope you will forgive me if

3 I go beyond that by about five minutes or so.

4 THE CHAIRMAN: We will have a quarter of an hour break now

5 and we will sort that out.

6 (4.35 pm)

7 (Short break)

8 (4.55 pm)

9 MR EGAN: Sir, I'm very grateful. That has now been done.

10 Mr Phillips has warned me that an important document

11 that I need to ask this witness about is not in the

12 system, although one of Mr Phillips' team has warned me.

13 I think Mr Phillips was going to make a suggestion that

14 it may be a good idea to have a small portion of an open

15 hearing tomorrow morning in case there are any matters

16 of clarification that needed to be made, the danger

17 being if there is a closed hearing tomorrow, obviously

18 only those who are allowed to come go into it.

19 It may be -- I'm entirely, of course, in the Panel's

20 hands.

21 THE CHAIRMAN: In front of us we have been given a sheet of

22 paper. This is not redacted and clearly should be, if

23 it is going to be referred to. Are you going to refer

24 to it as if it was redacted? Has Mr Phillips seen this

25 document?

 

 

163

 

1 MR EGAN: Yes, he has. I think it is a document everyone is

2 familiar with. Oh, you haven't? I'm very sorry.

3 MR PHILLIPS: It really doesn't matter, sir, I'm sure it is

4 going to be fine. I think it will be treated as if it

5 were redacted.

6 MR EGAN: I will rather airily answer that because it is

7 a well-known document, or at least it ought to be.

8 THE CHAIRMAN: So any questions you ask about it will be on

9 the basis as if it were a redacted document?

10 MR EGAN: It may be that it would be better for it to be

11 redacted and for me to ask the witness about it early

12 tomorrow morning, but of course I am in your hands on

13 that if you are going to have a small portion of an open

14 hearing which, as I understand it, Mr Phillips was going

15 to suggest.

16 THE CHAIRMAN: Is that right, Mr Phillips?

17 MR PHILLIPS: Yes. I think I am going to suggest it because

18 I think that there are a number of things that need to

19 be clarified, and I think Mr Savill and Mr Griffin will

20 be able to make some progress on that after this

21 hearing.

22 This document has, I think, already been redacted.

23 It is in a part of bundle which I confess I have always

24 found a mysterious part of the bundle because it is, on

25 the face of it, redacted and with a page number, but as

 

 

164

 

1 I understand it, has not been allowed to venture on to

2 the system. So the redaction work has been done. It is

3 just a question of making sure it gets on to the system

4 and we will be able to do that, I'm sure, overnight.

5 THE CHAIRMAN: I think reference to this particular document

6 should be tomorrow, not tonight.

7 MR EGAN: Yes, and I may have one or two small matters to

8 deal with tomorrow morning, but I'll undertake to

9 complete the vast majority of it in ten minutes or so.

10 Mr Ayling, I'm sorry to keep you waiting. Do you

11 have the document in front of you, please, now?

12 A. Yes, I do now. It is -- I must confess I had not seen

13 this before, Mr Egan.

14 THE CHAIRMAN: Wouldn't this be better dealt with tomorrow

15 morning, this sheet of paper?

16 MR EGAN: We are not going to deal with the policy log.

17 A. No, but the one that we were speaking of just before the

18 adjournment. I was --

19 THE CHAIRMAN: What is the number of the document you are

20 referring to?

21 MR EGAN: RNI-624-033, and I think that's now on the system.

22 THE CHAIRMAN: Yes (displayed).

23 MR EGAN: Now, have you had an opportunity to read that

24 document?

25 A. I have now, yes. I had not seen it before.

 

 

165

 

1 Q. You have not seen this document before?

2 A. The one we have here. It wasn't in the papers that

3 were --

4 Q. Oh, I see. You would have had access to it; IAT would

5 have had access to the product?

6 A. Would have had access to it, sir, but how long ago in

7 the process now, I couldn't be sure.

8 Q. But on one view, it is quite an important conversation

9 because it involves Swinger and the suspect?

10 A. Yes.

11 Q. And indeed you make some points about that in your

12 report, which I can remind you of if you need to be.

13 This is when there is conversation between them on

14 16 May 2001. So I had understood that you would be

15 familiar with, at any rate, conversations between the

16 two suspects on this day?

17 A. And you can point me to the place in the report --

18 Q. I will in a minute, Mr Ayling. I want you to look at

19 the document first.

20 A. Yes, I have looked at it, I have read it, sir.

21 Q. Right. The most important part of the document,

22 I suggest, although this is definitive, is he is talking

23 about somebody and he is talking about -- right down the

24 bottom, very, very short passage, I mean -- one,

25 I suppose, could miss it:

 

 

166

 

1 "You will not get fucking a [blank] ..."

2 And underneath there I am confident is the name of

3 the bomber:

4 "... to make you up a wee parcel.

5 "Answer: Oh, I can do that all right.

6 DAME VALERIE STRACHAN: I think that's the page before the

7 one we have got up.

8 MR EGAN: I'm sorry, Dame Valerie. That's quite right.

9 There you are:

10 "You will not get fucking a ... "

11 And beneath a redaction is the name of the bomber:

12 "... to make you up a wee parcel."

13 Then over the page:

14 "Oh, I can do that all right."

15 And some other conversation. Just dealing with

16 that, please, is that or is it not, bearing in mind who

17 is talking, a very important piece of evidence?

18 A. It is important, as I have discussed with other issues,

19 if you were looking at the totality of the product you

20 would certainly, certainly, weigh this item with others

21 in deciding that -- the tipping of those scales.

22 Q. But bearing in mind what's being talked about there and

23 to help you in your report, because I think this is

24 quite a short passage -- and we could probably go to the

25 report now. We can come back to it. RNI-610-030,

 

 

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1 please (displayed):

2 "[Blank] joined [blank] in [blank]."

3 And most of their conversations were recorded:

4 "Again, Rosemary Nelson was mentioned but neither

5 made any comment incriminating themselves or the LVF.

6 Both suggested she had been murdered by the British

7 Government with assistance of the UFF. Whilst the two

8 men discussed other terrorist activity that they had

9 been involved in, including murder, no evidence was

10 forthcoming in relation to the murder of

11 Rosemary Nelson."

12 A. Yes.

13 Q. Now, bearing in mind who the bomber is and who was

14 talking to the suspect, Swinger Fulton, and bearing in

15 mind the suspect said:

16 "You will not get the ..."

17 I'll leave out the swear words:

18 "... the bomber to make you up a wee parcel."

19 And bearing in mind -- we need a lot of

20 qualifications here. There is reference to wee boxes in

21 the past. How more important could something be,

22 Mr Ayling, in the context of this case?

23 A. How more important could it be? Well, I could think of

24 ways it could be more important, but I'm acknowledging

25 that this is worthy of consideration. It does help you

 

 

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1 to evaluate the totality of the product coming from

2 Operation George and this is something that you would

3 take into account. I have no problem with that at all.

4 Q. It could only be more important if he said:

5 "A wee parcel like the one he made you for murdering

6 Rosemary Nelson"?

7 A. Clearly that would have been massively --

8 Q. I'm glad we agree about that.

9 A. Absolutely massive, yes.

10 Q. What I would like to know from you as the compliance --

11 as it were, the person looking at all this with accuracy

12 and precision, why on earth that particular part doesn't

13 appear at 10.9.14 that we have just looked at, because

14 balance would demand -- you have said yourself on

15 a number of occasions how fair you have been. Wouldn't

16 it have been more accurate to say -- instead of saying

17 whilst the two men discussed other terrorist activity

18 they had been involved in including murder -- instead of

19 saying no evidence was forthcoming in the murder of

20 Rosemary Nelson, to say, although in fairness one of

21 them did say something about a person who suspected of

22 being the bomber giving them a parcel. Now, why didn't

23 that appear in that paragraph?

24 A. I don't think it says he gave them a parcel, did it? It

25 says that he -- "oh, I can do that all right". The

 

 

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1 indication was that he possibly could get a parcel.

2 Q. Yes. Let's just make sure that I have got it absolutely

3 right here and be as fair as I can:

4 "You will not get fucking the bomber fucking make

5 you up a wee parcel."

6 Sometimes the shorter the better. That is very

7 specific, I suggest to you and I want to know, please,

8 why it wasn't considered for inclusion in what is

9 suggested to be a fair summary at 10.9.14, where you

10 suggest there was no evidence forthcoming in relation to

11 the murder of Rosemary Nelson. I suggest that is wrong.

12 A. Well, I don't think this is evidence in relation to the

13 murder of Rosemary Nelson. It is evidence that there is

14 a relationship between the two individuals who were

15 talking and the person who we are talking about as the

16 suspected bomb maker. But I think it is absolutely

17 accurate to say it is not evidence forthcoming in

18 relation to Rosemary Nelson's murder.

19 Q. Well, forgive me if for once I'm perhaps rather more

20 pedantic than I hope I normally am. Are you saying you

21 considered this when writing the sentence:

22 "No evidence was forthcoming in relation to the

23 murder of Mrs Nelson."

24 And rejected it? Because I would like to know what

25 your evidence is about that.

 

 

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1 A. I have only just seen the document. I can't remember

2 when I saw it before. But having read the document now,

3 you know, I'm satisfied that the answers I gave you

4 before are the answers I would stand by. That is an

5 important consideration if you looked at any revaluation

6 of the product coming out of Operation George, and I'm

7 absolutely certain it does not in its form there offer

8 evidence in relation to the murder of Rosemary Nelson.

9 Q. And you are perfectly content, are you, that it doesn't

10 appear in your report?

11 A. I am.

12 Q. And if you were rewriting it tomorrow, you wouldn't feel

13 perhaps it was sensible to put it in to show a bit of

14 balance?

15 A. In view of the importance you attach to it, I would have

16 to give that very serious consideration. But when

17 I constructed the paragraph that we are talking about,

18 I did so in the belief that I was being fair in terms of

19 the comment I made, and this is not evidence that would

20 suggest involvement in Rosemary Nelson's murder. It is

21 an important contribution to any reassessment of the

22 intelligence products you were getting back from

23 Operation George and you would view it in the light of

24 what other material was available to you and it would

25 help weigh the balance.

 

 

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1 Q. You see, Mr Ayling, if I may say so -- and I don't say

2 this unctuously -- no one cares whether I think

3 something is important, it is either potentially good

4 evidence or it isn't. I say it is. Do you say it

5 isn't?

6 A. I can only repeat what I already said, Mr Egan: it is

7 what you would weigh in the balance. It is an

8 acknowledged fact that the persons concerned have

9 regular contact with the individual they are talking

10 about and they know that he is responsible for making

11 bombs. There is other intelligence that supports that

12 in any case.

13 MR EGAN: Yes.

14 THE CHAIRMAN: Would you accept it is a tenuous of evidence?

15 A. I would accept it was a tenuous piece of evidence, sir.

16 THE CHAIRMAN: Thank you.

17 MR EGAN: Would you look, please, at RNI-9.609-065.

18 (displayed).

19 Now, you will remember I said a short time ago --

20 and you queried me on it -- that you had said that the

21 only significant intelligence obtained during Operation

22 George was the information that people had visited the

23 scene of Rosemary Nelson's murder on 15/3.

24 Now, I think you challenged me to identify where in

25 the report it said that and it says it here, I think.

 

 

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1 It goes over the page. Could you highlight 9.33.1? You

2 can have both pages on the screen, thank you,

3 Mr Griffin. And we will do that, shall we? I hope that

4 will quicken it (displayed). I'm just reading from the

5 last paragraph:

6 "Subsequently investigations by the MIT confirmed

7 their presence at the scene and tended to support the

8 fact that they did this as a result of a radio

9 broadcast."

10 It gives a reference and some actions. Then this:

11 "This appears to be the only piece of significant

12 evidence obtained during Operation George in respect of

13 the murder of Rosemary Nelson."

14 That's where you say it?

15 A. Yes, thank you for that.

16 Q. And do you now want to reconsider that in view of some

17 of the product I have shown you and particularly the

18 last part, the wee parcel?

19 A. I think the accuracy of my report I stand by. Again,

20 I have no problem at all in acknowledging the important

21 aspects that weigh in this careful balance. But I think

22 I would go with the conclusion at this stage that the

23 matters you refer to, to use Sir Michael's words, are

24 tenuous. I would accept they are tenuous.

25 Q. Let's just consider in those circumstances what

 

 

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1 Sir Michael's words were: of course it could be tenuous

2 evidence?

3 A. Yes.

4 Q. Would you agree with me that tenuous evidence -- and

5 I think you agreed with Sir Michael -- in those

6 circumstances, would almost certainly rank as

7 significant intelligence?

8 A. I think you would have to look at the whole product, and

9 significant intelligence is that which leads you to say

10 that it was evidence in relation to Rosemary Nelson

11 because there is considerable other material that these

12 people know each other anyway, they have connections

13 with each other, they have knowledge of each other's

14 history and what they have been involved in.

15 We know that the LVF are involved in terrorist

16 attacks and it is all part of the big picture, but it

17 isn't significant intelligence that directly links them

18 to the murder of Rosemary Nelson.

19 Q. If you were writing that paragraph again today, sir, it

20 would be the same, would it?

21 A. I think it would.

22 Q. Yes, I see. Thank you very much.

23 Now, in relation to Operation George, during its

24 duration it was a line of enquiry in relation to the

25 murder of Rosemary Nelson, wasn't it?

 

 

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1 A. It was.

2 Q. And that remained the position, I suggest to you, until

3 (redacted) June -- I apologise if

4 I have that date wrong -- 2001. Do you agree with that?

5 A. Yes.

6 Q. Thank you for that. I want to ask you to look at

7 a policy book entry, which I'm going to ask you to look

8 at tomorrow morning, but I'm going to do my best to deal

9 with some other matters in relation to this, the better

10 to finish promptly in the morning.

11 In relation to Operation George, of course, RIPA

12 authorities would be required regularly, wouldn't they?

13 A. Well, yes. I think the RIPA Act came in in the course

14 of Operation George taking place.

15 Q. And when it was enacted, you would have needed to go in

16 front of a Chief Constable every month -- I hope I get

17 this right -- and a surveillance commissioner, isn't it,

18 one of Her Majesty's High Court judges every three

19 months?

20 A. Yes.

21 Q. Which would, of course, call for detailed justification

22 of the continuance of the particular operation?

23 A. That's the purpose of the authorities.

24 Q. And you have just agreed with me, have you, that

25 throughout the course of Operation George it was a line

 

 

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1 of enquiry in relation to the murder of Rosemary Nelson?

2 A. Yes.

3 MR EGAN: Now, I'm going to move back to that. Will you

4 forgive me, sir, just one moment?

5 THE CHAIRMAN: Certainly.

6 MR EGAN: (Pause)

7 Sir, I think that I would like, if possible, to

8 conclude my questions very shortly tomorrow. It will

9 take me about, I hope, ten or 15 minutes.

10 THE CHAIRMAN: The stenographer will be pleased.

11 MR EGAN: Yes, I'm sure she will. Mr Ayling, we return

12 tomorrow morning.

13 A. Yes, sir.

14 THE CHAIRMAN: We will adjourn until quarter past ten

15 tomorrow morning.

16 (5.16 pm)

17 (The Inquiry adjourned until 10.15 am the following day)

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