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Hearing: 2nd March 2009, day 117

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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 Monday, 2 March 2009
commencing at 1.00 pm


Day 117

 

 

 

 

 

 

 


 

1 Monday, 2 March 2009

2 (1.00 pm)

3 THE CHAIRMAN: Yes, Mr Phillips?

4 MR PHILLIPS: Before Mr Ayling is sworn, may I just make

5 a few comments by way of introduction -- because

6 obviously we are moving into a new phase in a sense with

7 this evidence -- for two reasons: the first because he

8 has produced a very substantial report, rather than

9 a witness statement; and the second because you have

10 indicated in his case, uniquely, that you will permit

11 another counsel to question him: Mr Egan.

12 Now, Mr Egan and I have discussed the way the

13 evidence is likely to proceed and it may help everyone

14 present just to give an outline of how we expect it to

15 go. I will question Mr Ayling this afternoon in

16 relation to the conclusions he has reached in his report

17 on the five points that you have identified in the

18 solicitor's letter of 12 January, and also ask him to

19 comment on evidence that has been received,

20 particularly, of course, from the senior management

21 team, over the last few days and weeks, and specifically

22 on the issue of whether that has caused him to change or

23 revise any of the views that he has expressed in his

24 report.

25 I think that will take us until the end of the

 

 

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1 day -- I would like to finish that today -- it may be

2 that we should at least consider sitting slightly later

3 today to do that so that I can hand over to Mr Egan

4 tomorrow morning. I think our joint aim is that we

5 would reach the point of the closed session for

6 Mr Ayling's evidence, which there will have to be, on

7 Wednesday morning.

8 In relation to that, sir, what I would like to do

9 before making, as it were, the usual announcement about

10 what will be covered in the closed hearing, is to have

11 a further discussion with Mr Egan so that we can agree

12 a joint statement or summary, so far as that's

13 concerned.

14 THE CHAIRMAN: Thank you.

15 MR ROBERT AYLING (sworn)

16 Questions by MR PHILLIPS

17 THE CHAIRMAN: Thank you. Please sit down.

18 MR PHILLIPS: Now, Mr Ayling, can you give us your full

19 names, please.

20 A. Yes, my name is Robert Ayling.

21 Q. Thank you. Can we just identify your report in terms of

22 our Inquiry bundle? Can we look, first, please, at

23 RNI-601-001 (displayed). There we see the front sheet

24 and the date of January last year, January 2008, and

25 I think it is right, isn't it, that it occupies the

 

 

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1 succeeding files to RNI-615-020, which is, I believe,

2 the last page of the full text, although there are

3 glossaries and other documents after that, and we can

4 see it there, paragraph 15.17.6.

5 Now, so far as this afternoon is concerned, I would

6 like to start, please, by ask you just one or two

7 questions about your own CV and experience, and that we

8 can find, I hope, at RNI-617-001 (displayed).

9 Now, there, in, as it were, reverse order, you set

10 out your career and we can see that you were a police

11 officer I think for about 33 years. Is that right?

12 A. Yes, almost 34, I think, yes.

13 Q. Thank you. And of those, I think some 12 years in ACPO

14 ranks. Is that right?

15 A. That's correct, yes.

16 Q. Now, as I understand it, you served as a police officer

17 in the Hampshire and then the Kent Constabulary. Is

18 that correct?

19 A. Correct, yes.

20 Q. What I would like to do is just pick up various stages

21 in your career. Can we go to RNI-617-002, please

22 (displayed)? There you tell us that in June 1989 you

23 were detective superintendent and then detective chief

24 superintendent, I think within the Kent Constabulary.

25 Is that right?

 

 

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1 A. That's correct.

2 Q. And you tell us there in your list of responsibilities

3 that you were involved with serious and major crime

4 investigation including homicide, and also you were for

5 a period the Head of Special Branch.

6 Can I ask you, please, so far as the first of those

7 is concerned, what was your involvement in those ranks

8 with homicide investigations?

9 A. My principal involvement was working in a department

10 that was specialised in terms of major crime, which

11 would have included homicides. I have been an SIO in

12 a homicide investigation and lesser crimes than

13 homicide. And my time as the detective chief

14 superintendent of the department, of course, I had

15 overall responsibility for the major crime department

16 and for investigation and crime policy as a whole for

17 the Kent police.

18 Q. Thank you. And in relation to Special Branch, as I

19 understand it, you were Head of Special Branch during

20 this period and then, when you were promoted in 1992 to

21 Assistant Chief Constable, you then took overall

22 responsibility within the force for crime operations and

23 Special Branch. Is that correct?

24 A. Yes, that's correct, yes.

25 Q. And so far as that aspect of your work and career is

 

 

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1 concerned, did that involve you in the issues with which

2 the Inquiry has become familiar, of the dissemination of

3 intelligence to CID in the context of investigations?

4 A. Yes, it did, sir. But to be fair, that was not a major

5 feature of my work at that time, mainly because most

6 crime investigation in Kent at that time would not have

7 had a need to draw upon Special Branch intelligence.

8 Q. So in your role as Head of Special Branch, as ACC,

9 I mean, what were your responsibilities?

10 A. Well, the Special Branch in Kent was responsible for the

11 sea ports and I think Dover was the largest passenger

12 handling Port of the United Kingdom, and with that

13 brought certain national security issues. So the

14 Special Branch focus was primarily in respect of the

15 passenger and freight traffic travelling through Kent

16 passenger ports.

17 Q. Thank you. Can I ask you to turn over to RNI-617-004

18 (displayed) where you say just a little bit more about

19 your work there, under the heading "Special Branch"? As

20 I understand it, it was one of your functions also at

21 this stage of your career to liaise with other agencies.

22 Is that right?

23 A. Yes, indeed. As I mentioned there in my CV, in, I think

24 it was 1990 or 1991, there was an IRA bomb attack on the

25 Royal Marine barracks at Deal in Kent and I was in the

 

 

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1 Special Branch at that time. I was Head of the

2 Special Branch. And in fact for the duration of that

3 crime investigation, I performed the role of being in

4 charge of the Intelligence Cell, and in that capacity

5 I would have had a liaison, as it says in my CV there,

6 with the Security Service, the military and indeed

7 foreign police forces and intelligence agencies.

8 Q. Thank you. Now, can we just move on in the CV to, as it

9 were, the next stage up and go back to RNI-617-001

10 (displayed).

11 Here you took up another position as

12 Assistant Chief Constable in charge of personnel and

13 training. Now, as I understand it, it was at about this

14 time, we see in RNI-617-005 (displayed), that you were

15 appointed to investigate the Stephen Lawrence

16 investigation. Is that correct?

17 A. That's correct, sir, yes.

18 Q. And what did that assignment require you to do?

19 A. That, sir, was Mr and Mrs Lawrence -- of course, the

20 parents of the murdered teenager, Stephen Lawrence --

21 had following, I think it was, the inquest into the

22 death of their son, made comments which were deemed by

23 the Metropolitan Police as amounting to a complaint

24 against them in the way that they had managed the murder

25 investigation of Stephen Lawrence. And in fact later

 

 

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1 on, I think their solicitor followed that up with

2 a formal letter of complaint, but actually didn't set

3 out in detail the particulars of the complaint.

4 But I was then asked by the Metropolitan Police to

5 conduct an investigation into those complaints, many of

6 which were allegations of offences against the Police

7 Discipline Conduct Regulations. And the form at that

8 time, sir, was that the PCA, the Police Complaints

9 Authority, were responsible for supervising such

10 complaints and one of their first tasks is to approve of

11 the appointment for the investigating officer. I mean,

12 the investigating officer has to be acceptable to them

13 and, indeed, that happened. So I, therefore, conducted

14 the investigation under the supervision of the Police

15 Complaints Authority.

16 Q. And how many did you have working for you in that

17 investigation?

18 A. The team varied in size depending on what the current

19 workload was, but as an approximation, probably never

20 less than six and probably not more than 12.

21 Q. And in terms of the experience of conducting that

22 investigation and no doubt in due course preparing the

23 report, have you been able to draw on that work in the

24 work that you have undertaken for this Inquiry?

25 A. Well, yes, indeed, sir, and I think one of the principal

 

 

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1 areas that I draw upon was the very great difficulty of

2 finding the correct standard to apply when looking at

3 a historical police investigation.

4 Q. Can you expand on that?

5 A. Yes. At that time, in terms of the Stephen Lawrence

6 investigation, I think the murder of Stephen had taken

7 place, I think, in about 1994 and that pre-dated any --

8 an attempt by ACPO to impose a national standard of

9 investigation. In fact, it gave me the opportunity in

10 the role I was performing to discuss that very matter

11 with my then Chief Constable, Sir David Phillips. And

12 I think from some of the issues that arose from trying

13 to pin the right standard down to a point in time and

14 apply it fairly, gave rise, I think, to what became

15 later a project that produced the Murder Investigation

16 Manual.

17 Q. Now, can we just turn now to this Inquiry and the work

18 you have undertaken in this case, and look at the first

19 chapter of your report, because I want to ask you some

20 questions about your methodology, the way you went about

21 your work.

22 Now, the first thing, obviously, is the issue that

23 you were asked to address. And can I ask you, please,

24 to look with me at RNI-601-013 (displayed). That's in

25 chapter 1. There you set out the Inquiry's own Terms of

 

 

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1 Reference, which, of course, led to your being asked to

2 express an opinion as to whether the investigation was

3 carried out with due diligence.

4 In 1.3, as I understand it, you address the question

5 of what that means, that phrase "due diligence" means,

6 and produce an answer at the top of the next page,

7 RNI-601-014 (displayed) in bold. Is that correct?

8 A. Yes, that's correct, sir.

9 Q. Now, so far as that is concerned, that, as it were,

10 gives you the test, namely whether in the circumstances

11 in which it was being conducted, the investigation was

12 carried out properly, reasonably and efficiently by

13 reference to standards prevailing at the time.

14 Can I now ask you to tell us what steps you then

15 took in order to take that test and apply it to the very

16 particular circumstances of this investigation?

17 A. Yes. I was very conscious that the particular

18 environment of Northern Ireland would be very different

19 from anything that I had previously been exposed to and,

20 of course, one of the conditions as my appointment to

21 carry out this task was that very fact that I had no

22 previous involvement with Northern Ireland policing.

23 So very much my first task was to get a broad feel

24 for what those issues might be and then look at what was

25 likely to be the most appropriate measure, benchmark, if

 

 

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1 you like, to test any findings in terms of what my

2 investigation revealed and to use the standard to say

3 whether or not that particular work had come up to an

4 acceptable standard or, indeed, had exceeded it, or,

5 indeed, for whatever reason might be, had perhaps fallen

6 lower than that standard.

7 And looking around at the time, it was -- in my view

8 the appropriate standard to use then was the recently

9 published ACPO Murder Investigation Manual, which was

10 published in 1998, certainly in England and Wales.

11 Q. Can you explain why it was that you decided that that

12 was the appropriate document to refer to?

13 A. Yes. I took account of the fact of the comments that

14 the then Chief Constable of the Royal Ulster

15 Constabulary had made publicly, Sir Ronnie Flanagan.

16 It was clear to me, with his statement and with all

17 the prevailing circumstances of Rosemary Nelson's

18 murder, that this was a very significant event in the

19 history of Northern Ireland issues, coming so recently

20 after the Good Friday Agreement. The consequences in

21 relation to the potential to damage the reputation of

22 the Royal Ulster Constabulary and the fact that

23 Sir Ronnie Flanagan had seen fit to first of all call in

24 somebody to overview what they were doing initially and

25 eventually, of course, that leading to the appointment

 

 

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1 of an ACPO-ranked officer from outside of

2 Northern Ireland, that being, of course, Mr Colin Port,

3 who was then Deputy Chief Constable of Norfolk.

4 Looking at all those circumstances, it was my view

5 that the right and proper standard to apply would be the

6 standards that had been set out in the Murder

7 Investigation Manual, but it was clear to me that there

8 were elements of it that clearly would not be fair to

9 apply in the Northern Ireland context. And certainly in

10 other areas it was an understanding that there would be

11 some difficulty and often some great difficulty in

12 applying those standards.

13 So it was a case, together with my team, of looking

14 at all aspects of that investigation to make sure that

15 we were being as fair as we possibly could, taking

16 account with what clearly, of course, was our limited

17 knowledge at that time of policing and political issues

18 in Northern Ireland.

19 Q. Thank you. I don't want to leap about too much, but

20 just for everybody's reference apart from anything else

21 can I ask to you look at paragraph 15.7, right at the

22 end of your report, RNI-615-005 (displayed)? Am I right

23 in thinking that this is a section of your concluding

24 chapter, where you set out in written form the sort of

25 points you have been making about the way, as far as you

 

 

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1 were concerned, standards should be applied in this

2 case?

3 A. Yes, it is, sir, yes.

4 Q. Thank you. Now, I'll also return to the question of the

5 Northern Ireland context when asking you some questions

6 about Mr Kinkaid's evidence in a moment.

7 A. Yes.

8 Q. But on the topic of methodology, can I ask you now to

9 look at 1.3.4 at RNI-601-014 (displayed) because, as I

10 understand it, there -- and the paragraph, I am afraid,

11 goes over the page to RNI-601-015 -- you explain the way

12 in which you went about your task of expressing a view

13 on due diligence, given the very substantial amount of

14 material generated by the investigation and, of course,

15 the very substantial amount of work over the years that

16 that the investigation team undertook.

17 And as I understand it, what you have done on

18 individual topics is to seek to give full credit for, as

19 it were, positives, whilst at the same time weighing up

20 the weight, the significance of the negatives?

21 A. Yes, I mean, that's correct, sir. I think, as I explain

22 in my report in several areas, it can never be a crude

23 way of calculating how many negatives, how many

24 positives; one has to weigh it in a very careful balance

25 to take account of circumstances prevailing and trying

 

 

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1 to be as fair as possible to people who we acknowledge

2 were doing a very difficult job in very challenging

3 circumstances.

4 Q. Now, so far as your assessment team is concerned, you

5 have set all that out for us beginning at 1.4,

6 RNI-601-016 (displayed) and the individuals are named at

7 RNI-601-017 (displayed), in paragraph 1.4.6. And you

8 explain there, I think -- again, please tell me in

9 I have got this wrong -- that you recruited a team that

10 you thought would provide the relevant experience for

11 the particular circumstances of this murder

12 investigation that you were examining. Is that correct?

13 A. Yes, that's correct, sir. I mean, my first job on being

14 appointed was to scope the task that I was to undertake

15 and then obviously decide how to go about it. And it

16 was clear that I needed the support of a team

17 experienced in certain specialist areas of police

18 investigation to assist me. And in recruiting the team,

19 which you see before you now on the screen, that was

20 having particular regard -- was making sure that I was

21 supported with the most appropriately skilled personnel

22 to do the job.

23 Q. And just to confirm, as you said in relation to

24 yourself, I think, in relation to all of these former

25 police officers, none of them had worked for or been

 

 

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1 associated with the RUC during their careers. Is that

2 correct?

3 A. That's correct, sir, yes. It was a condition of their

4 appointment to the team.

5 Q. Yes. Now, you flag up some constraints on your work in

6 section 1.5 and, again, just to try and draw the threads

7 together, as I understand it, the principal constraints

8 are, first, that you were not able to have the sort of

9 dialogue with the Murder Investigation Team that would

10 be common, for example, in the course of a normal

11 review. Is that right?

12 A. Yes, that's correct, sir, and I knew that would be quite

13 a considerable handicap to us, but yes, that was one of

14 the conditions that we embarked upon our task.

15 Q. So in broad terms you have had to weigh up the material,

16 the written material that you found and draw conclusions

17 from that?

18 A. Yes, we have, to all intents and purposes, been solely

19 reliant upon a documentary evidence trail.

20 Q. Now, by way of slight qualification on that, in 1.5.4,

21 RNI-601-019 (displayed), you tell us that after you had

22 produced a draft of this report in February 2007, the

23 MIT produced their own response and that was something

24 that you considered, as I understand it, before

25 producing your final report. Is that correct?

 

 

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1 A. Yes, that's correct.

2 Q. Thank you. Now, just looking finally at the impact of

3 the sheer bulk of material in this case, can I ask you

4 to look, please, at 1.8.4 at RNI-601-022 (displayed).

5 Here you are using the example of the huge quantity

6 of tapes that were generated, and estimating there that

7 it would take, you say, 54,000 hours to listen to all of

8 these tapes. Is that right?

9 A. Yes, indeed.

10 Q. Now, in relation to that and, indeed, the general issue

11 about the sheer bulk of the material, what did you do so

12 as to satisfy yourself that you had seen and considered

13 a sufficient amount of relevant material in order to

14 express an opinion on it?

15 A. Yes, I can. It was very important to me in embarking

16 upon my task that I should be satisfied that it had been

17 done as thoroughly as humanly possible.

18 Dealing first of all with the tapes you mentioned,

19 clearly 54,000 hours of tapes were more than we could

20 listen to. So what we did, we had asked the MIT -- and

21 I should say to qualify the earlier statement that we

22 were not allowed to interview members of the MIT -- we

23 did -- we were able to formulate a protocol with the MIT

24 which allowed us to ask questions of material that went

25 to explaining where it was or what its part in their

 

 

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1 investigation had been. We were not allowed to ask

2 questions that had any bearing on the accountability for

3 any action taken.

4 But that protocol proved very, very useful because

5 my team did have a constant dialogue with the MIT. And

6 at all times they were extremely helpful, certainly, I'm

7 sure, as helpful as they could have been. And in

8 relation to the tapes, for instance, the MIT provided us

9 with a list of tapes that they believed, based upon

10 their lengthy investigation, contained the relevant

11 material in relation to all the hours of recording that

12 had gone on.

13 I was anxious to be seen to be looking outside of

14 that list and we took what we called an intelligence-led

15 approach to deciding, in addition to the Murder

16 Investigation Team's list of tapes, what else we would

17 take account of. So, for instance, at a significant

18 anniversary, perhaps the anniversary of the murder

19 itself, we would look at all the tapes that had been

20 recorded on that day, or on occasions when, in

21 accordance with the MIT's apparent strategy where they

22 achieved in bringing two people together a date that

23 perhaps they hadn't signified there was relevant

24 material, we nevertheless would have checked all the

25 tapes for that date to verify that that was the case.

 

 

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1 In relation to the written material outside of the

2 tapes, we looked at all the documentation on the police

3 HOLMES account, which was called the J404 account, and

4 in addition a separate stand-alone HOLMES account that

5 the Collusion Cell had used, which was named for the

6 purpose, the X2 account, and indeed several other

7 systems that the MIT had identified to us. And we

8 looked at all the documents that were registered and we

9 produced a schedule which basically said what the

10 significance of that particular document was.

11 And that, sir, really fell into three categories:

12 categories that indicated that the document was relevant

13 and referred to in providing evidence to support the

14 comments and conclusions of the report; a second level

15 of documents that we thought were relevant but were not

16 directly referred to, and of course that was a much

17 larger bundle of documents; and then lastly, a very

18 large bundle of documents that we had seen but did not

19 believe were relevant to taking the task that we had

20 forward in terms of allowing us to formulate any

21 particular judgment on them.

22 Q. And, again, just to help everybody here, as I understand

23 it, it is the first category, as it were, the

24 A category, that formed the bulk of what we have been

25 calling the part 3 bundle; in other words, the documents

 

 

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1 cited in your report and which have now been put in

2 various files for all the Full Participants?

3 A. Yes, I understand that is the case, sir, yes.

4 Q. Thank you. Now, can we just bring this part of matters

5 to a general close by looking at 1.85, and that's

6 RNI-601-023 (displayed) because here, reflecting on the

7 general size of the task you have undertaken, you say

8 a little more about the way it has worked as between you

9 and your team, and we can all read what it says on the

10 screen.

11 But, as I understand it, the key point for us here

12 is in the second of these two paragraphs, which is that

13 this is your report, these are your conclusions, that

14 you have set out in the document which we all have in

15 front of us. Is that correct?

16 A. Yes, very much, sir. I was conscious of the fact that I

17 had personally been appointed to undertake this task

18 and, therefore, I needed to be completely satisfied that

19 the content of this report I could support personally,

20 and that is the case.

21 Q. Thank you. Now, just going back to the point

22 I mentioned we would return to in a moment just a while

23 ago about the Northern Ireland context, the next section

24 of your opening chapter concerns the relevant

25 standards -- this is beginning at 1.10, RNI-601-024

 

 

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1 (displayed) -- and you have now explained in your

2 earlier answer why it was you settled on the MIM. But

3 can I ask to you look, please, at 1.10.3 on the next

4 page, RNI-601-025 (displayed), where you deal with this

5 question of the Northern Ireland context.

6 Again, you have helpfully explained how you

7 attempted to factor that in to your work, although you

8 had no direct experience of it yourself. What I would

9 like to do now, please, Mr Ayling, is to ask you to look

10 at one of the appendices which Mr Kinkaid produced to

11 his due diligence statement, because that addresses head

12 on this question of the policing context in

13 Northern Ireland. It is appendix C and it begins at

14 RNI-620-116 (displayed). And I'm sure you are familiar

15 with it, but to remind everybody here, as it says, it

16 deals with the context of the investigation. I asked

17 Mr Kinkaid a number of questions about it, and what he

18 does very helpfully, drawing on his own experience as

19 a police officer in Northern Ireland, is to set out the

20 policing context.

21 What I would like you to do is simply to look with

22 me at one or two aspects that he specifically

23 highlighted. First of all, can I ask you, please, to

24 look at RNI-620-118 (displayed), because here at C1 in

25 his general introduction he emphasises the differences

 

 

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1 between policing in Northern Ireland and policing in

2 England or, indeed, anywhere else in the United Kingdom,

3 with some statistics, you see there, at C1.3.

4 Presumably I can take it that you simply have no

5 comparable experience in your own career of operating in

6 an environment like this one?

7 A. That is correct, sir, yes.

8 Q. Now, the next matter he addresses under the heading "The

9 Political Situation" is, again, a matter that obviously

10 one can read about, one can follow in the newspapers,

11 but presumably I can take it that this sort of

12 environment for a police officer, again, is outside your

13 personal experience. Is that correct?

14 A. Yes, that's correct, yes.

15 Q. Now, so far as the terrorist element of all of this,

16 what he does is to set out some details of the

17 organisations then operating and explains at

18 RNI-620-126, paragraph C4.3 (displayed), how it was that

19 terrorists sought to frustrate police work and

20 investigations by a variety of well practised

21 techniques, and that takes him over to RNI-620-127, do

22 you see, at C4.5?

23 Now, so far as your own career is concerned, you

24 have helpfully mentioned the Deal bombing, the IRA

25 attack there. With the exception of that case, with

 

 

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1 which are you were obviously closely involved, in your

2 own career were you involved in the investigation of

3 terrorist crime?

4 A. Not this type of terrorist crime, sir; animal rights

5 issues but not this type. Not involved, but of course

6 I was for many years a member of the ACPO Terrorism and

7 Allied Matters Committee and this sort of information

8 that Mr Kinkaid has set out is not unfamiliar to me.

9 Q. Well, I'll come to how you addressed it in a moment.

10 That's very helpful, thank you.

11 The final point I'd I wanted to flag up to you in

12 relation to this part of the appendix is public

13 attitude, which we have on the screen there. And this

14 is where Mr Kinkaid explains that policing was made more

15 difficult by the fact that a substantial proportion of

16 the community did not engage with and, indeed, did not

17 trust the police.

18 Again, no doubt this is something you were aware of,

19 but is it something in this sense that you have

20 experience of in your own career?

21 A. Not directly, sir, no. Interestingly enough, I did have

22 a staff officer who was a Catholic from Belfast, who had

23 joined the Kent police rather than the Royal Ulster

24 Constabulary. And, of course, being my staff officer it

25 was often a source of a conversation between us. So

 

 

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1 I was aware of these attitude issues.

2 Q. Thank you. Now, so far, finally, as the appendix is

3 concerned, the final point I wanted to draw to your

4 attention is the section headed "RUC Special Branch",

5 which begins at RNI-620-1030 (displayed). And the

6 Inquiry has now heard evidence from Mr Port, for

7 example, who, like you, had been based principally in

8 England, explaining how the relationship between CID and

9 Special Branch was entirely new to him. And I assume I

10 can take it that you had not experienced, whether from

11 the, as it were, ordinary police side or from your time

12 in Special Branch, exactly the relationship which

13 pertained in Northern Ireland?

14 A. Certainly that would be true to say not exactly, but

15 again, from my time in Special Branch I was aware of

16 some of the issues that are mentioned.

17 Q. Thank you. Which were those?

18 A. The fact that the Royal Ulster Constabulary

19 Special Branch were responsible for national security

20 issues and the difficulty disseminating intelligence

21 from that particular sphere into the crime investigation

22 sphere.

23 Q. Thank you. Now, so far as this aspect of your work is

24 concerned, you address it in the paragraphs beginning at

25 1.11, RNI-601-026 (displayed), and I don't want to go

 

 

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1 over that material, but what I did want to ask you is

2 this: in the light of the evidence that Mr Kinkaid has

3 given on this topic, are there aspects of what he said

4 to the Inquiry which have made you think that you had

5 not sufficiently appreciated the context or that your

6 conclusions in any respect ought to be amended or varied

7 in any way?

8 A. I found Mr Kinkaid's account to be very useful, but

9 I believe in all fairness it didn't introduce me to

10 anything completely new. I had, as far as I could,

11 read, to fill the gaps in my own knowledge, from

12 a number of sources, including the previously mentioned

13 reports of Her Majesty's inspectors, who, although, of

14 course, post dating the murder of Rosemary Nelson, had

15 nevertheless commented on policing issues.

16 Q. Sorry, just to interrupt you, but to be clear, is that

17 the Blakey and the Crompton reports?

18 A. Yes, it is, and of course the comments that the Patten

19 Commission had made in respect of policing. So it was

20 familiar territory, but that's not to say that the very

21 succinct and useful way that Mr Kinkaid had laid it out

22 did not serve to further my understanding.

23 Q. Thank you. Now, can we just return to the topic of the

24 Murder Investigation Manual, about which you have given

25 evidence already. It is clear from the report that this

 

 

24

 

1 is a document to which you return and from which you

2 quote at various stages and in various aspects of the

3 Murder Investigation Team's work.

4 You have now heard the evidence of Mr Kinkaid to the

5 effect that it had not been, this document, the Murder

6 Investigation Manual, formally introduced in

7 Northern Ireland at the time of the beginning,

8 certainly, of the murder investigation. I think he said

9 in fact that it was a couple of years before it was

10 introduced. What impact, if any, has that had on your

11 view of the matter?

12 A. It did have an impact in as much as it was a matter that

13 I needed to very carefully consider, and I took account

14 of the fact that clearly one of the principal reasons

15 why the Chief Constable of the RUC had invited in, if

16 you like, outside investigators was not only to bring

17 a transparency to that investigation, but also to bring

18 clearly the higher standards that were to be applied to

19 this murder investigation in the hope that it would

20 identify the killers of this terrible crime.

21 You know, to that extent, I felt that in the

22 circumstances, those very special circumstances, that it

23 was still the appropriate standard to apply. But,

24 again, as I said earlier, with the caveat, the

25 recognition, that there were some aspects of the manual

 

 

25

 

1 that clearly would be very difficult and some aspects

2 that would be impossible.

3 Q. Now, can I ask you to look next at what Mr Port had to

4 say about this in his witness statement on due

5 diligence, and I think -- I hope, at any rate -- we can

6 find that at RNI-817-436 (displayed). Yes.

7 This is the section of his report which is where he

8 is dealing with guidance, and he gave some further

9 evidence along these lines in his appearance at the

10 hearings. So far as the Murder Investigation Manual is

11 concerned, you see he addresses that in paragraph 56 and

12 says that he thought it was a development of the old

13 SIO's handbook. Does that seem like a fair comment to

14 you?

15 A. It certainly is a development, sir, but it is a very

16 different document because the old SIO's handbook was

17 very brief by comparison.

18 Q. And this is a much more substantial piece of work; is

19 that right?

20 A. That's correct.

21 Q. Yes. And he says there that he recalls reading in

22 particular the section on victimology when he was in

23 Northern Ireland. But what I wanted you to look at

24 really is paragraph 57 and 58. Here he says first that

25 he saw it as a tool which could help him to refine

 

 

26

 

1 thought processes:

2 "However, it was not the only tool and certainly

3 rigid adherence to it would not necessarily result in

4 a successful investigation."

5 And then goes to be expand on that.

6 Now, from what you were saying earlier, is there any

7 difference, other than a semantic difference, between

8 the approach he is suggesting there and the approach

9 that you think should have been taken in this case?

10 A. I don't think there is a substantial difference, no,

11 certainly I wouldn't be asking for a rigid adherence.

12 It is a manual that sets out best practice and, you

13 know, recognising that the project team that put it

14 together had very considerable experience of crime

15 investigation and the supporting working party that

16 aided the project team had, in all other areas of

17 investigation, including terrorism, a great deal of

18 experience, then it is good practice that you would be

19 well advised to consider carefully before you took any

20 action.

21 Q. And was it in your view sufficiently flexible to be

22 applied in this case?

23 A. Yes, I think so.

24 Q. So what do you make of the suggestion that there was

25 little or nothing in it which was of use to

 

 

27

 

1 investigators dealing with a terrorist crime?

2 A. I think, as I say, when one looks at the persons who

3 contributed to it -- and one individual in particular,

4 a member of the working party, was a detective chief

5 superintendent from the anti-terrorist branch of the

6 Metropolitan Police -- I think its applicability to

7 terrorist murder was legitimate and it certainly had

8 something to offer, in my view, the investigator.

9 Q. Now, so far as the next paragraph of Mr Port's statement

10 is concerned, it is a very substantial paragraph that

11 goes over in fact to the next two pages -- but what he

12 then sets out is an approach which he describes as "MIM

13 plus", and sets out, as you see on the next page there,

14 various sources of guidance, as it were, in addition to

15 the text of the murder manual itself.

16 Now, so far as that is concerned, were you aware at

17 the time of producing your report that Mr Port had

18 consulted widely in this way?

19 A. With the restrictions on my ability to be able to speak

20 to Mr Port, the simple answer to that, sir, has got to

21 be no. Mr Port was not unknown to me, of course, as an

22 ACPO colleague. I knew of his background and I knew

23 that he was considerably experienced in crime

24 investigation and enjoyed a very high reputation amongst

25 his ACPO police colleagues as an accomplished crime

 

 

28

 

1 investigator.

2 Q. But in terms of the applicability or otherwise of the

3 manual to the specific points that you have considered

4 in your report, did this evidence from Mr Port lead you

5 to reconsider or review any of your conclusions?

6 A. No, sir, I think what Mr Port is setting out is

7 additional, and if he is able to take advantage of the

8 level of advice that would be available from such an

9 impressive list, then of course it would be sensible to

10 take advantage of that. But he did describe it,

11 I think, as the MIM plus, so it didn't detract from my

12 view that the MIM set out a standard and a standard that

13 was appropriate to use as a benchmark.

14 Q. Thank you. Now, finally on the question of that

15 standard and the MIM, what, please, do you say in

16 response to the criticism that one of the defects of

17 your report is that there is all too much box ticking;

18 in other words, that you have taken the murder manual

19 and simply judged this investigation on the basis of

20 whether there are a sufficient number of ticks in the

21 relevant MIM boxes?

22 A. I do not believe that I took a box-ticking approach at

23 all. I took an approach that seemed to myself and my

24 team to be a relevant way of breaking down, if you like,

25 taking apart, the murder investigation into component

 

 

29

 

1 parts that we could then separately, as component parts,

2 look to see whether they had been carried out

3 efficiently. And one of the benchmark tests for that

4 would be to see whether it had followed broadly, or in

5 principle, the best practice advice contained in the

6 Murder Investigation Manual.

7 That is not to say that we had any expectation that

8 would be a slavish adherence to it, but nevertheless, if

9 there was a departure from that best practice, I think

10 it drew attention as to whether that departure was for

11 good and efficient reasons in all the circumstances.

12 Q. So just so I'm clear about this, where you saw or found

13 what in your view was a departure from the manual, what

14 that did was to raise a question?

15 A. Correct.

16 Q. And as I understand it, what we see in the report is

17 once the question has been raised, you then weigh up all

18 the various factors based on the material you have seen,

19 in the context as you understood it, in order to

20 determine whether your standard of due diligence had or

21 had not been met?

22 A. That is true, sir, with, of course, the limitations that

23 were upon us, that we were solely able to come to those

24 decisions looking at the documents and did not have the

25 opportunity to speak about these issues to members of

 

 

30

 

1 the Murder Investigation Team.

2 Q. Coming straight to point on this and asking you a very

3 general question about it, is it fair to say that one of

4 the biggest difficulties you encountered is that in

5 a number of key areas of the investigation there was not

6 the documentary record that you would have expected of

7 considerations of decision-making in relation to

8 important matters?

9 A. That is correct, sir. In many areas we were unable to

10 know what the current thinking of the Murder

11 Investigation Team had been because there was a dearth

12 of any recorded material that would assist us to

13 understand.

14 Q. And did that, at the end of your report in chapter 15 --

15 and we will look at it in a moment, but did that lead

16 you to say in relation to the question of, as it were,

17 overall due diligence, that there were still important

18 and unanswered questions?

19 A. Yes, it did, because I think, as I tried to say rather

20 clumsily at the beginning, it wasn't a case of dividing

21 the investigation into component parts and then simply

22 saying, "Well, there are so many good, so many bad"; it

23 was very clear that it needed to have -- it needed to

24 have an overall look to see how all this had impacted on

25 the efficiency of the investigation, whether or not it

 

 

31

 

1 had had an impact on the outcome in terms of what had

2 happened. And at the end of the day, as you rightly

3 say, sir, there were certain questions that still

4 remained unanswered that I felt unable, on grounds of

5 fairness to the Murder Investigation Team, to reach any

6 final conclusions over in respect of due diligence.

7 Q. Thank you. Now, what I'm going to do now is to take you

8 through the five points that the Panel have indicated

9 they want to hear evidence about.

10 Before I do -- and to put those in context -- it is

11 right, isn't it, that there are many areas of the

12 investigation which you have commended in your report

13 and where you have expressed your satisfaction that the

14 standard of due diligence has been reached?

15 A. Yes, that's correct, ranging from an opinion that

16 a standard has been reached through to what I believe to

17 be vastly exceeding the standard, in fact falling into

18 the category of outstanding police work.

19 Q. Thank you. Now, turning, with that important caveat, as

20 it were, to the five topics, can I now ask you some

21 questions about the early intelligence?

22 A. Yes.

23 Q. I think for our purposes we needn't look for the

24 five thousandth time at the original documents that came

25 into the investigation. What I would like to do instead

 

 

32

 

1 is to ask you to look at the comments you make in your

2 report about validation, the validation of intelligence.

3 They're in chapter 9, and I would like to start, please,

4 at 9.9 at RNI-609-024 (displayed).

5 Now, just by way of opener, as it were, what in your

6 view is the relevance and importance of the process of

7 validating intelligence?

8 A. Well, usually, if you are going to take a course of

9 action, i.e. open a line of enquiry or several lines of

10 enquiry, that clearly is going to cost in terms of

11 resource use. One needs to be satisfied that it is an

12 appropriate use of resources in terms of making the best

13 use of them.

14 So, therefore, any intelligence that you receive,

15 there is a fundamental rule that you need to look at

16 that intelligence and seek, as far as possible, to

17 validate it, to make sure that the action that you are

18 going to take based upon that intelligence is legitimate

19 and an efficient use of resources.

20 Q. And, again, in general terms what are the options? What

21 are the methods open to an investigator to go about this

22 process of validation.

23 A. I think in my report, sir, there is a list.

24 Q. There is --

25 A. Sadly it is heavily redacted.

 

 

33

 

1 Q. It has been redacted in its entirety. So everybody

2 knows, it's at 9.9.5 and if we have that on the screen

3 at RNI-609-026 (displayed), we will see the difficulty

4 you are in.

5 A. If I may seek your guidance, sir, do you wish to talk

6 about the broad principles of validation?

7 Q. Yes, I think that would be very helpful.

8 A. Yes. Validation should really be seen in two parts.

9 Certainly, as far as human intelligence sources are

10 concerned, what has been referred to as CHISs, the first

11 issue is how reliable is the source of the information.

12 For that, you would need to ask certain questions about

13 the source to be entirely satisfied that they had had

14 a track record of giving reliable information and that

15 there was nothing in their background or that was known

16 about them that perhaps would indicate that they might

17 have some ulterior motives.

18 The second issue in relation to validation, and

19 equally important, is in terms of the information that

20 they actually give. And in terms of the validation

21 there, you would want to be satisfied how the source was

22 in a position to know the information that they were

23 passing, whether they were in a position to know how

24 accurate it was and whether they had passed it on

25 literally verbatim and whether or not they were capable

 

 

34

 

1 of expanding on it.

2 Q. Thank you very much. Now, so far as validation in

3 Northern Ireland is concerned -- and, again, at

4 a general level -- we see you deal with this at 9.9.4 at

5 the bottom of the previous page, which is RNI-609-025

6 (displayed). In the last sentence there -- again, I am

7 afraid there is a redaction, but you say there that --

8 you recognise that validating SB intelligence here may

9 be more difficult than in other parts of the UK.

10 Again trying to keep this general and mindful of the

11 constraints in the open hearing, what can you say about

12 those difficulties that you recognise?

13 A. I have acknowledged earlier that the Special Branch

14 operating in Northern Ireland have a range of additional

15 responsibilities to Special Branches that operate in

16 England and Wales. They also, of course, as indeed all

17 people who manage covert human intelligence sources

18 have -- they have a very high standard, a very high duty

19 of care obligation to ensure the safety of those

20 sources. And, of course, in the Northern Ireland

21 context it is, I think, recognised and a matter of

22 record that the consequences of exposing a CHIS source

23 can have grave and very often fatal outcomes.

24 So in Northern Ireland, one is very much aware that

25 this is an absolutely critical area and that the

 

 

35

 

1 Special Branch, not only for the sake of looking after

2 the human rights of their sources in terms of ensuring

3 the highest standards of safety that they can offer, but

4 also, of course, taking a longer view at their ability

5 to give people enough confidence in their own security

6 to continue to recruit sources in the future.

7 So Northern Ireland is a very difficult environment

8 to work in for those reasons. All those reasons apply

9 to some extent in England and Wales, especially in

10 relation to organised crime. But the prevalence in

11 Northern Ireland is clearly greater. It is a permanent

12 and -- it is a permanent feature of the policing

13 experience.

14 Q. Thank you. Now, before we look at the evidence that has

15 been given on this topic, can I ask you to look with me

16 at a caveat that you enter in this context at

17 RNI-615-012 (displayed) -- again, this is the last

18 chapter of your report, paragraph 15.11 -- because here

19 you say at the beginning:

20 "It is apparent that [Mr] Port and later

21 [Mr] Provoost received verbal briefings from SB ..."

22 which were not documented.

23 Now you have had an opportunity to see the

24 statements and to hear the evidence, have you learnt

25 more in this area -- in other words, where the written

 

 

36

 

1 intelligence has been supplemented by oral briefings --

2 than you knew at the time of writing your report?

3 A. Sir, it was a restriction on me seeing some of those

4 statements and hearing some of that evidence, so I

5 haven't seen all the statements that have been made to

6 the Inquiry observing that condition imposed upon me.

7 But those that I have heard clearly, yes, in some areas

8 I do know more about what intelligence was passed to the

9 MIT than I knew in the course of my assessment.

10 Q. Well, as we go through, no doubt you will reflect that

11 increased knowledge and information in expressing your

12 views to me.

13 A. Yes.

14 Q. What I would like to do is to look at this issue of

15 validation in two phases: before Mr Port's arrival and

16 then after he became the OIOC.

17 A. Yes.

18 Q. Now, so far as the first phase, the three weeks before

19 he took charge, is concerned, we have now had evidence

20 from the SIO on the one hand, and his deputy on the

21 other, Mr Kinkaid and M540, suggesting that they had two

22 rather different methods for getting behind the briefing

23 forms they received for Special Branch. M540 favoured

24 the, as it were, the informal approach, the corridor

25 conversations as he put it, whereas Mr Kinkaid, if you

 

 

37

 

1 remember, stressed that in this case he decided to

2 approach things in a formal way, and he gave written

3 taskings to Special Branch at a very early stage.

4 Now, so far as you are concerned, what are the

5 advantages or, indeed, disadvantages of those two

6 approaches?

7 A. Well, I think the approach that Mr Kinkaid describes is

8 a very transparent approach in terms of it being very

9 clear in written terms what he seeks. The possible

10 disadvantage that I could see is that if you had to

11 narrowly define the request, you may not get all the

12 information that you believe you might need. And I do

13 know from my limited experience on Special Branch that

14 that would have been an issue, because I think even when

15 Special Branch is trying to be especially helpful, they

16 still have uppermost in their minds the issue of source

17 protection.

18 So answering the question that has been asked is not

19 necessarily any attempt to be difficult, but it is an

20 attempt to be helpful in terms of the question that was

21 posed. So that's what I see as a possible limitation of

22 that approach.

23 In terms of the approach described by M540, then

24 I think the advantage is that it does exploit personal

25 relationships which clearly are built on trust, no doubt

 

 

38

 

1 developed over a large number of years, and that trust

2 allows information to be passed with perhaps the

3 assurance it is going to be managed and handled in

4 a very responsible way. But, of course, the obvious

5 difficulty is that it is not transparent, it is not

6 auditable in terms of other people knowing exactly what

7 issues were sought and what the responses were.

8 So both sides have their advantages and

9 disadvantages. I think there are more inherent dangers,

10 of course, with the approach of M540. But on the other

11 hand, in the circumstances you would certainly wish to

12 exploit as far as possible that personal relationship

13 and that position of trust.

14 Q. It was a reasonable way, wasn't it, of getting round the

15 cultural position whereby Special Branch would produce

16 heavily sanitised information to the investigators,

17 which, unless you sought to probe it in that way, really

18 didn't give you very much?

19 A. I think that's true.

20 Q. Now, can I just put to you a comment that Mr Kinkaid

21 made in his evidence about how you went about this in

22 the particular circumstances of Northern Ireland? He

23 said, in talking about how the process of validation did

24 indeed begin at an early stage, you'd pose as many

25 questions as you could to try the develop the

 

 

39

 

1 intelligence that's in front of you. Then he continued:

2 "Then you played the triangulation thing, because

3 not only have you got this intelligence coming from

4 South Region, Belfast has independently supplied you

5 intelligence. You have anonymous messages coming in and

6 then ..."

7 As he said, you see how it fits with the forensic

8 material. As an approach, is that one that commends

9 itself to you?

10 A. If that was the environment in which you found yourself

11 working, then it clearly is an approach that would

12 enable to you get the maximum benefit you could from

13 those sources of information or intelligence, if that

14 were the environment that you had to operate in.

15 Whether it is a satisfactory environment is another

16 issue.

17 Q. And can I just ask you in general terms and now you have

18 heard the various accounts that have been given about

19 the early attempts at validation, how do you assess what

20 was actually done in this regard by the Murder

21 Investigation Team?

22 A. (Redacted)

23 (redacted).

24 (Redacted)

25 (redacted).

 

 

40

 

1 If you remember, I described that there were two

2 aspects to validation: (redacted)

3 (redacted). I think

4 that in the evidence that I have heard there was an

5 acceptable level of validation (redacted)

6 (redacted). I am, sir, less able to come to

7 a conclusion or formulate an informed opinion (redacted)

8 (redacted)

9 (redacted).

10 Q. Now, I'm going to move away from this topic, just

11 briefly, to another aspect of this part of the case and

12 put to you what Mr Kinkaid said later in his evidence,

13 which was that in expressing the views that you have in

14 your report about validation, where you have made some

15 criticisms of the MIT, what he said was missing was

16 a comparison with what other SIOs in RUC murder

17 investigations were doing at the time and the levels of

18 cooperation and information they were receiving from

19 Special Branch.

20 Isn't there some validity in that point?

21 A. Yes, there is validity in that point. I did not compare

22 this investigation with any other RUC investigation

23 because I saw aspects of it that were significantly

24 different.

25 Mr Kinkaid's evidence did impact on me in relation

 

 

41

 

1 to the issue of the problem of SIOs not being developed

2 vetted and, therefore, within the rules not able to be

3 party to secret intelligence. I was aware of that.

4 I did take account of it. I think perhaps I didn't take

5 sufficient account of it in relation to the period

6 before Mr Port arrived.

7 Q. In other words, that the absence of a DV'd senior

8 officer meant that they were seriously hampered? Even

9 if they were making all the efforts they could, there

10 was only so far that they could have gone?

11 A. That's what I gleaned from the evidence that Mr Kinkaid

12 gave to the Inquiry.

13 Q. And what of the point made by him and a number of

14 others -- and I appreciate it is more general point, not

15 just covering this early phase -- that over the course

16 of the investigation the team received more information,

17 more cooperation, from Special Branch than had been the

18 case in any other prior investigation?

19 A. I am confident that that is an accurate statement.

20 MR PHILLIPS: Sir, would that be a convenient moment?

21 THE CHAIRMAN: Yes. We will break off until 25 to three.

22 (2.18 pm)

23 (Short break)

24 (2.35 pm)

25 MR PHILLIPS: Now, before we leave this early phase, can I

 

 

42

 

1 ask you to look at the extract from the Kent or Cornwall

2 log. If we can have both RNI-847-0060 and RNI-847-007

3 on the screen, please (displayed). Thank you very much.

4 This is a note that there's been a good deal of evidence

5 about from the Kent officers and from a number of those

6 who were at the meeting, I think just about everybody

7 present, with one or two exceptions. And you will

8 remember it set up a structure for the dissemination of

9 intelligence from Special Branch to the Murder

10 Investigation Team at the stage when the Kent officers

11 were still advising; you see, 18 March 1999?

12 And what we have heard about it is that in fact it

13 didn't operate in this way after their departure.

14 I just wanted to ask you this, Mr Ayling: in your view,

15 could and should a system of this kind have been

16 operated in the investigation?

17 A. I think a system of this kind could have operated.

18 I find more difficult the issue should it have operated

19 because I think I'm contaminated with the benefit of

20 hindsight to know that things ran into difficulties with

21 the relationship. So clearly this provided a option

22 potentially to avoid those problems, but I think in

23 saying that it is heavily the case that it is said with

24 hindsight.

25 Q. Thank you. Can we just move on to the second of our two

 

 

43

 

1 stages, and obviously that's the stage after Mr Port's

2 arrival? What I would like you to do with me is to look

3 at paragraph 9.9.6 of your report. That's at

4 RNI-609-027 (displayed). There you express the view

5 that the process of validation should have been given:

6 "... added impetus upon the appointment of

7 DCC Port."

8 As I understand it, what you have in mind there in

9 particular is paragraph 7 of his terms of reference?

10 A. Exactly.

11 Q. Now, so far as this phase of the process is concerned,

12 the evidence suggests, I think, that because of his

13 position and of course the fact that he was DV'd, unlike

14 the other officers, at the outset, he became privy to

15 intelligence and he personally attempted to validate it

16 in a way that didn't happen, wasn't possible at that

17 stage, for the other officers. You remember that

18 evidence, do you?

19 A. I remember it, sir, yes.

20 Q. How, in your view, was that managed by the investigation

21 team?

22 A. I am unclear, having heard the evidence, as to exactly

23 what Mr Port was told in using his terms of reference.

24 I do appreciate that he was under an obligation, as his

25 terms of reference were personal to him, that he was

 

 

44

 

1 unable to share it with the Murder Investigation Team,

2 and I could see that would present some difficulties.

3 And I heard, of course, Mr Port's explanation as to how

4 he sought to overcome those difficulties.

5 Q. In your view did he succeed in doing so to the standard

6 that you are applying in this case?

7 A. I think that's very difficult for me to assess and have

8 an opinion on that would be helpful to the Panel.

9 Q. Thank you. Now, can I just pick up a specific example

10 of these attempts by Mr Port at, if I can put it this

11 way, personal validation and ask you to look, please, at

12 a note of a meeting that took place on 20 April 1999,

13 which we can find, I think, at RNI-914-260 (displayed).

14 Now, it's heavily redacted, I am afraid, of course,

15 and of course it is also important to note that this was

16 one of a large number of initiatives that Mr Port

17 described to us in his evidence. But doing what you can

18 with this and the other material you have considered and

19 the evidence that you have now seen and heard, was

20 Mr Port successful in these early months, in your view,

21 in validating the early intelligence?

22 A. I think the only way I can answer that is to say that

23 there is no documentary evidence that that was the case.

24 I simply have a paucity of material upon which to make

25 an assessment or reach a judgment.

 

 

45

 

1 Q. Does that take us back, at least in part, to the fact

2 that the detailed contents of conversations and meetings

3 has not been -- for whatever reason -- recorded?

4 A. Yes.

5 Q. Now, can I ask you to look in this context to

6 a paragraph at the end of your report when you address

7 the relationship between Special Branch and the Murder

8 Investigation Team much more broadly, and that's at

9 15.17.4, I think, at RNI-615-019 (displayed). Yes.

10 Here, you say that:

11 "The MIT is steadfast in its position that they

12 received regular and consistent SB assessments that the

13 mid-Ulster LVF was responsible for Rosemary Nelson's

14 murder."

15 So just standing back, in other words assessments

16 which were consistent with the early intelligence. And

17 then you go on to say:

18 "However, the AT has found no documentary record of

19 this assessment or an indication of how and when the MIT

20 received it, or how they determined what reliability

21 should be attached to it through validation."

22 Now, of course, you have now heard a good deal of

23 evidence about the nature of the relationship between

24 Special Branch and the Murder Investigation Team; you

25 have already referred to it. And you will remember

 

 

46

 

1 Mr Port describing his experience of dealing with

2 Special Branch as like wading through treacle whilst

3 treading on eggshells?

4 A. Yes.

5 Q. Now, in the light of that evidence, are you able to

6 express a view for the Inquiry as to whether that

7 relationship had a detrimental effect on the

8 investigation?

9 A. I think I would acknowledge that it had a detrimental

10 effect to some degree. I do not feel able to properly

11 assess to what degree. Several of the witnesses who

12 have given their oral evidence have described that you

13 can have a professional relationship even if there are

14 difficulties in a personal relationship, and certainly

15 in my experience that is the case.

16 However, I think there is bound to be some

17 detrimental effect, but it is very difficult to make an

18 assessment as to what particular problems that gave rise

19 to and whether it had a damaging effect on the progress

20 of the investigation.

21 Q. Does it follow from that that it has equally been

22 difficult for you to assess or to test the issue of due

23 diligence in this specific context?

24 A. Yes.

25 Q. Now, can I just ask you to look, before asking some more

 

 

47

 

1 questions about validation, at the relevant MIM

2 guidance, and that I think we can find at RNI(redacted)

3 (displayed). This is in the context of (redacted)

4 intelligence, I should have said, rather than it being

5 a general series of comments on validation.

6 So far as this is concerned, you will see at the

7 bottom of the page that it says:

8 "The evaluation of the information provided (redacted)

9 (redacted) is a critical activity."

10 Then:

11 "(Redacted)

12 (redacted)

13 (redacted)

14 (redacted)"

15 Et cetera. Isn't this a very good example where the

16 reality of life in Northern Ireland made it very hard

17 for the process of validation to be conducted in strict

18 accordance with the MIM?

19 A. Are you speaking there, sir, of the time before

20 Mr Port's arrival or after, or across the board?

21 Q. I think it would probably be easier for everybody to

22 deal with it across the board, if you don't mind.

23 A. Yes. In what I would refer to as a normal

24 investigation, then clearly in Northern Ireland it would

25 be very difficult to comply with this aspect of the

 

 

48

 

1 guidance.

2 I feel in respect of Mr Port's terms of reference

3 that that offered him, if you like, the trump card to

4 overcome the difficulties because it clearly and

5 unequivocally gave him unfettered access to the RUC, and

6 Special Branch in particular, records and files and no

7 doubt access to the CHIS handlers.

8 Q. So does it come to this: that where you criticise the

9 team for their failure effectively to validate (redacted)

10 intelligence, another way of putting it is that in your

11 view Mr Port didn't effectively use his trump card?

12 A. I do not know if, and how effectively, what particular

13 difficulties he had in using that trump card because

14 there has been very little documentation to guide me in

15 making that assessment.

16 I think in respect of the Murder Investigation Team

17 senior management, I acknowledge that there were

18 difficulties in validating intelligence. They needed,

19 as far as I can see, Mr Port as an integral member of

20 that senior management team with his trump card, in

21 order to effectively validate the intelligence. But as

22 far as I can understand his terms of reference, taken

23 literally, I can see no reason why that wouldn't have

24 provided him with access to the information that the

25 senior management team would need to validate the

 

 

49

 

1 intelligence that came to them from Special Branch.

2 Q. And just to be clear on this aspect, in expressing that

3 view, are you taking into account the evidence we have

4 heard from Special Branch officers, for example, that

5 they implied into paragraph 7 of the terms of reference,

6 which he was given -- the paragraph we are concerned

7 with -- various tests of relevance, of necessity, indeed

8 of proportionality in relation to disclosure and, as far

9 as they are concerned, adhered to or respected the terms

10 of the paragraph with all of those words written in?

11 A. Yes, I think I did take that into account. I believed

12 that Mr Port's terms of reference were personally backed

13 by the Chief Constable and that it was within Mr Port's

14 domain to press his case and, if necessary, had resort

15 to the Chief Constable who gave him those terms of

16 reference.

17 I understand how difficult that might prove on each

18 and every occasion, but it was probably necessary to

19 establish the ground rules early on to prevent constant

20 repetition of the same issue.

21 Q. Just taking an example, namely the request for certain

22 Loyalist CHIS identities, which we have heard evidence

23 about which was begun in August 2000 and carried on

24 until their eventual disclosure to him in January 2001,

25 in fairness to Mr Port, isn't that an example of him

 

 

50

 

1 pushing his terms of reference for all they are worth to

2 ensure that he got access to material in the face of

3 very considerable opposition and unease on the part of

4 the some Special Branch officers?

5 A. I think it is an example, yes.

6 Q. So are you saying then that even allowing for that

7 determination in that particular case, your overall view

8 is that sufficient determination, sufficient effective

9 use of the terms of reference was not made so as to

10 fully and properly validate the (redacted) intelligence?

11 A. I don't think I can say it quite in those terms, sir. I

12 can say it that I have not seen the documentary evidence

13 to say that particularly with the -- what has been

14 described as the early intelligence, that it was

15 effectively validated. And I don't know whether that's

16 because Mr Port did not, as we say, push his paragraph 7

17 to demand access and certain information or for any

18 other reason, because without it being committed to

19 writing, without it being in documentary form, without

20 me being able to ask questions to the relevant people,

21 I simply do not feel that I have heard enough to make

22 a judgment in that respect.

23 Q. So to be clear then finally, the documentary record had

24 gaps, as you would say, and those have not been filled

25 in for you by the evidence you have read and heard?

 

 

51

 

1 A. I have not seen to my satisfaction a documentary record

2 that would lead me to believe that the early

3 intelligence was properly validated.

4 Q. Right. Can I move on to a related topic, and that's the

5 idea of the single hypothesis. What I would like to do

6 in this regard, please, is to get you to start by

7 looking at the relevant guidance in the manual, and this

8 is to be found at RNI-616-301 (displayed), at the bottom

9 of the page. And perhaps we could have RNI-616-302 on

10 the screen as well, please (displayed).

11 These are passages -- well, certainly extracts from

12 these paragraphs are cited, aren't they, in your report?

13 A. Yes, they are.

14 Q. Now, in terms of this extract or part of the Murder

15 Investigation Manual, do you take the view that this was

16 an aspect of the guidance here which could and should

17 have been used and applied in this case?

18 A. Yes, I do.

19 Q. Yes. So there was nothing in your view -- just tell me

20 whether this is right or not -- to preclude applying the

21 Murder Investigation Manual in this regard?

22 A. Nothing in my view, yes.

23 Q. Yes, thank you. Now, so far as the evidence from the

24 senior management team is concerned, in various

25 different ways Mr Kinkaid, M540 and Mr Port confirmed

 

 

52

 

1 that from an early stage they believed that this was

2 a terrorist murder and that Loyalist terrorists were

3 responsible. And Mr Port said in answer to a question

4 I put to him:

5 "I questioned myself on a regular basis about it

6 but, frankly -- and all the intelligence pointed to it

7 and I haven't seen anything subsequently that changes me

8 from that."

9 So what Mr Port was saying there was that he

10 questioned the hypothesis himself, and we have also

11 heard evidence from the officers that there were regular

12 discussions, regular meetings, in which the

13 hypothesis -- they probably didn't use that word -- was

14 gone over, reviewed and discussed.

15 Now, as a matter of principle, is it wrong for the

16 SMT in a case to have discussions of this kind, to go

17 through various possibilities, to challenge each other

18 on what may be the likely relevant and best hypothesis

19 in the particular case?

20 A. Well, I think the first point is that a murder

21 investigation, in fact any investigation, needs to be

22 effectively structured. Everybody needs to be clear

23 about what it is they are investigating and how they are

24 going to go about it. That is done by the development

25 of hypotheses as to what might have happened and testing

 

 

53

 

1 that hypothesis to either prove or disprove it.

2 I think the danger that I see in investigations

3 speaking in general terms about investigations, is that

4 when you depart from that structure, which for good

5 reason is part of the good practice guidance, it leads

6 to confusion as to exactly what the hypothesis is,

7 exactly how one is to go about proving or disproving it.

8 And, indeed, it doesn't encourage an open mind to

9 actively consider, well, what could other motives have

10 been? Are there indications that would support

11 a different hypothesis; in fact, perhaps a number of

12 different hypotheses.

13 That's not to say that you couldn't have a main

14 hypothesis, but the whole process, I think, is important

15 in terms of approaching the crime investigation from

16 a properly structured way that seeks essentially, of

17 course, the main purpose of the investigation, to get

18 the truth.

19 Q. And in your view, was such a structure present in this

20 case?

21 A. I did not find in the course of my assessment any

22 recorded hypothesis. It was not part of any policy

23 document. There was not a policy statement about it.

24 It was, however, possible to construct the hypothesis

25 that the Murder Investigation Team seemed to be working

 

 

54

 

1 upon because there was a consistency with what Mr Port

2 in particular was telling NGOs and other bodies that he

3 was meeting with. And it was clear that the Murder

4 Investigation Team did have a hypothesis.

5 I did not find evidence that it challenged that

6 hypothesis in a rigorous way. I do -- and, of course,

7 I accept that they discussed it and would have had daily

8 discussions about how the unfolding investigation

9 supported their hypothesis or perhaps, importantly, did

10 not support their hypothesis. But I think the process

11 requires some degree of formalisation and it is

12 necessary, I think, particularly as the investigation

13 unfolds and perhaps doesn't yield the information that

14 you were seeking, that you do need to formalise

15 a challenge, it does need to be done on a proper and

16 structured basis with the encouragement certainly of the

17 full senior management team to take part and, indeed,

18 a wider involvement of the Murder Investigation Team in

19 particular.

20 In the course of my work, I have seen this done on

21 many occasions and there are different ways of doing it.

22 I did not find any documentary evidence to suggest that

23 the Murder Investigation Team took that approach.

24 Q. So just to pick up a couple of points from that, as I

25 understand it what you are saying is even if, as you

 

 

55

 

1 accept, there were discussions going on and reviews in

2 conversation and hypotheses being considered and perhaps

3 challenged, even if all of that was in fact happening,

4 that does not negate the need, in your view, to have

5 a sufficient record of that process?

6 A. It doesn't, no. That's my position.

7 Q. Now, can I just ask you to look at various parts of your

8 report in which you pick up this issue, and I would like

9 to start in chapter 14, please -- which is the chapter I

10 think headed "Management of the Investigation" -- by

11 seeing what you have to say on this topic there, it

12 begins at RNI-614-054 (displayed) and at

13 paragraph 14.16.2 under the heading "Hypotheses and

14 Challenging Assumptions".

15 You begin with this very point about the lack of any

16 documented record and, at the bottom of the page, place

17 responsibility for this on the OIOC, Mr Port, and the

18 SIO, of course initially Mr Kinkaid, for doing that, and

19 then proceed to the citations from the MIM at

20 RNI-614-055 (displayed).

21 In 14.16.5 on the next page, RNI-614-056

22 (displayed), you say in your review that you have only

23 located one documented hypothesis. As I understand it,

24 that's a document that you have, as it were, interpreted

25 as being a hypothesis; is that right?

 

 

56

 

1 A. I think that document calls itself a hypothesised

2 sequence of events.

3 Q. Yes, and this is the one that Mr Kinkaid talked about,

4 I think, in his evidence, didn't he, that had been

5 prepared for him by the analyst in relation to telephone

6 contact between the key suspects?

7 A. Yes.

8 Q. Yes. Now, can I ask you, please, to turn to 14.16.9,

9 which is where this aspect of management comes rather

10 sharply into focus, and that's at RNI-614-058

11 (displayed)? There you say:

12 "A particular concern is that the considerations of

13 the MIT senior management which led to the focus upon

14 the targets of Operation George were not documented."

15 And you put forward three primary factors which you

16 believe were taken into account.

17 Can I pause to ask you this question: in the

18 evidence that you have heard, have you had cause to

19 review that interpretation, namely that those were the

20 three primary factors?

21 A. No, I haven't.

22 Q. And they are: (a) the claim of responsibility; (b) the

23 original intelligence, which we have just been talking

24 about; and (c) the similar devices point?

25 A. Yes.

 

 

57

 

1 Q. And you then proceed, as I understand it, to explain in

2 relation to all three of the building blocks, if I can

3 put it that way, in the paragraphs beginning 14.6.12 to

4 14.6.14, to suggest that as the murder investigation

5 proceeded -- I'm now at RNI-614-059 (displayed) -- doubt

6 was cast in your assessment over each one of the primary

7 factors?

8 A. That is true.

9 Q. Now, in terms of our chronology, at what point do you

10 say that doubt began to be cast, as far as you can tell,

11 on the hypothesis?

12 A. Well, I think, taking the three considerations that it

13 was evident that the MIT had used to base their

14 hypothesis on, I think, as time went on in respect of

15 the claim of responsibility, it became evident to the

16 MIT -- there was some suggestion they knew at quite an

17 early stage -- the possibility of it being a flag of

18 convenience.

19 In relation to the linking of the UVIED with other

20 Loyalist devices, I think the certainty with which the

21 forensic scientist made his early assessment began to be

22 undermined and, in my view, was quite severely brought

23 into question with the second opinion that Mr Port very

24 credibly asked for from --

25 Q. Mr Todd?

 

 

58

 

1 A. Mr Todd.

2 Q. Yes.

3 A. And in relation to the original -- the intelligence, the

4 early intelligence, that had named particular

5 individuals, I think as the operation, the proactive

6 operation that targeted those individuals with what

7 I have described as very innovative covert policing

8 methods -- I think the product of that operation tended,

9 in my view, rather more to eliminate than implicate the

10 targets of that operation by virtue of the product

11 coming from Operation George.

12 So I think these three factors drawn together cast

13 some doubt on it. You asked me for a chronology and

14 I think that certainly by the middle of the following

15 year we approached this in the assessment team with what

16 we called a traffic light chronology. We looked at

17 indicators where the green light was saying it was okay

18 to take this course of action was still glowing

19 strongly, there were indications that that light was

20 turning to amber as a result of the information the

21 investigation team were gathering. And I think by at

22 least the summer of the following year, those amber

23 lights had turned to red to say that by now there was --

24 there should be a fundamental reassessment of those

25 three factors.

 

 

59

 

1 Q. And, therefore, presumably of the hypothesis itself?

2 A. Yes, indeed.

3 Q. That's very helpful, thank you. But looking at the last

4 sentence of the paragraph we were focusing on, 14.16.15,

5 there you say:

6 "The AT is of the view that this reappraisal should

7 have commenced by the end of 1999"?

8 A. Yes. I did describe, Mr Phillips, that by the latest --

9 I think the summer of the following year, those red

10 lights were glowing strong. I think by September 1999

11 the amber lights were bright, and it was at that point

12 that a fundamental reassessment might have taken place.

13 Q. Now, can I proceed to look at some of the factors that

14 you have mentioned in this part of your report in turn

15 and the first is the claim of responsibility. Then I'm

16 going to ask you some questions about the similar

17 devices.

18 So far as the claim of responsibility and the way in

19 which the Murder Investigation Team investigated is

20 concerned, the relevant passage of your report begins at

21 chapter 8 -- 8.30 is the paragraph, I think -- and you

22 deal with it from RNI-608-063 to RNI-608-075

23 (displayed). I should have illustrated this in the

24 earlier topics we have been looking at, but just to do

25 so with this topic in mind, the way the report proceeds

 

 

60

 

1 is to set out the detail in 8.30 and that takes us as

2 far as RNI-608-075, if we can flick on to there, please

3 (displayed). Following that -- and this is the way you

4 have proceeded throughout the report, isn't it -- you

5 have in a box a section headed "Assessment" in which you

6 express your conclusions on individual topics?

7 A. Yes, that's the way that I divided into the component

8 parts that I described earlier.

9 Q. Thank you. Now, you said in the passage we looked at in

10 chapter 14 that it was one of the three primary factors

11 that, as far as you could judge, the assessment team

12 relied upon in producing their hypothesis. Can I ask

13 you now to look in the detailed section at 8.34, which

14 is at RNI-608-064 (displayed). And there, having set

15 out with, as it were, redactions in the paragraph above

16 what was said in what we described as the call of

17 critical importance, you then repeat the point that it

18 was one of the three early developments that led to

19 these particular suspects being the focus of Operation

20 George.

21 Now, can I ask you this question: was it reasonable

22 in your view for this call, this claim of

23 responsibility, to be accorded the weight that it was by

24 the Murder Investigation Team?

25 A. Yes, it was a perfectly legitimate line of enquiry that

 

 

61

 

1 needed to be progressed.

2 Q. How significant in your view was the fact that the Red

3 Hand Defenders, in terms of claims of responsibility,

4 were regarded -- that title, as it were, or name, was

5 regarded as a nom de guerre or a flag of convenience?

6 A. I think it was a legitimate line of enquiry to explore

7 exactly who might have made the claim and what their

8 relationship might have been to the perpetrators of the

9 crime. And I think, as a result of those enquiries, it

10 became increasingly clear to the Murder Investigation

11 Team that little credibility could actually be given to

12 the claim as pointing a link towards the perpetrators of

13 the crime.

14 Q. Now, do you recall the evidence of Mr Kinkaid in

15 relation to a particular individual who was believed to

16 have a strong link with the Red Hand Defenders?

17 A. Yes, do you.

18 Q. Whose house was searched?

19 A. Yes.

20 Q. And in whose house was found not only the "Man Without

21 a Future" pamphlet, but also a copy of the other leaflet

22 we have looked at, the "Monster Mashed" leaflet.

23 So far as that is concerned, didn't those

24 discoveries and what Mr Kinkaid said about them lend

25 support to the seriousness with which the Murder

 

 

62

 

1 Investigation Team regarded the Red Hand Defenders'

2 claim of responsibility?

3 A. Yes, properly so, it did. But I think as their

4 enquiries progressed, a picture built up for them that

5 indicated that many people indeed shared that code word,

6 and I think there is a page in my report, sir, where it

7 actually listed in chronological order the views

8 expressed by various members of the MIT, some of them

9 members of the senior management team that, you know, in

10 the end drew those conclusions, that the claim lacked

11 a credibility because of the apparent currency of the

12 password and the --

13 Q. It's RNI-608-074. Sorry, I didn't want to ...

14 A. Yes, thank you. And apparently, you know, the Red Hand

15 Defenders' name had been used in a variety of instances

16 and, if I recall correctly, with the exception only of

17 Rosemary Nelson, had always referred to attacks in

18 Belfast. And, again, with the exception of

19 Rosemary Nelson, I don't think any claim was in relation

20 to an under-vehicle improvised explosive device.

21 Q. I should have said for the note, as it were, that that

22 list you give of quotations continues to RNI-608-075.

23 But in paragraph 8.31.3 on the next page,

24 RNI-608-076 (displayed), here you list in bullet point

25 form the points in your view that serve to question the

 

 

63

 

1 importance and, as you put it, credibility given to the

2 claim of responsibility.

3 Can I ask you, please, in the light of the evidence

4 you have heard, is there anything that makes you want to

5 amend or change in any way the comments that you make in

6 that paragraph?

7 A. No, there isn't, sir.

8 Q. So far as giving credit is concerned, we see the points

9 you make in the Murder Investigation Team's favour, if I

10 can put it that way, in the next paragraph. But as I

11 understand your overall conclusion on this issue, it is

12 adverse to the Murder Investigation Team; is that

13 correct?

14 A. My position is that the line of enquiry that they

15 embarked upon placed them in a position to believe that

16 the claim of responsibility could not be relied upon

17 and, as such, needed to be reassessed as a component of

18 their hypothesis. And I stress again that it is not

19 documented anywhere that it was a component. That is

20 the conclusion that the assessment team has drawn based

21 upon the material that it has read.

22 Q. But you see it, therefore, as part of that rather

23 broader -- in that rather broader context?

24 A. Yes.

25 Q. Yes. Now, what I would like to do now, please, is to

 

 

64

 

1 ask you about a specific intelligence report on this

2 which the MIT say that they did not see, and that's at

3 RNI-544-259 (displayed) and the substance at RNI-544-260

4 (displayed). Could we have both on the screen? Thank

5 you very much.

6 Now, I'm not asking to you get into the debate

7 between the team on the one hand and Special Branch on

8 the other as to whether or not they received the

9 intelligence and, if so, in what form. That's not

10 a matter for you, obviously. But in your view, in terms

11 of the work on the case and the work that you have

12 assessed in this aspect of your -- on this part of your

13 report -- was this intelligence of significance?

14 A. The intelligence is of significance, I feel I need to

15 clarify at this point. The line of enquiry that the MIT

16 embarked upon was a proper line of enquiry. The

17 position of the assessment team is that due to their

18 investigatory efforts, they were able to ascertain

19 that -- the credibility of the claim was not high

20 because of the currency of the password and the number

21 of organisations and people that made claims under this

22 banner. That is not to say it is still not right and

23 proper to pursue that line of enquiry to a conclusion,

24 and intelligence such as this should have -- if it

25 wasn't made available to them, should have been and it

 

 

65

 

1 would have been right to pursue, to seek to validate

2 that intelligence and pursue in the best means that they

3 could.

4 I think my point -- and so as not to lose it, if

5 I might just restate it -- is that there came a point in

6 time with that line of enquiry where it was reasonable

7 and proper to say, "Hang on a minute, this doesn't look

8 to be as convincing as we first thought. We, therefore,

9 ought to re-evaluate it and see where we stand and see

10 if, as one of the pillars of our hypothesis, we ought to

11 reconsider the hypothesis in general."

12 That is not to say that you wouldn't still wish to

13 pursue that line of enquiry to a proper conclusion, and

14 dealing with this intelligence is part of that proper

15 conclusion.

16 Q. Thank you. Now, can I just move on to one of the other

17 of the two pillars of the hypothesis, as it were, that

18 you talk about, and you talked about in chapter 14, and

19 this is the similar devices point.

20 This you deal with in the course of chapter 4 of

21 your report, and we can see it at RNI-604-039

22 (displayed) under the "Assessment" heading at the bottom

23 of the page and continuing for, I think, three further

24 pages.

25 Now, what I would like to do with you, please,

 

 

66

 

1 bearing in mind the limited sense in which this aspect

2 of the MIT's work is relevant to the hypothesis, is just

3 to look at a couple of points which you have already

4 touched on. The first is the views of the forensic

5 scientists.

6 Here you set out for us your assessment on the next

7 page, RNI-604-040 (displayed), and as I understand it,

8 what you are saying in simple terms is that when the MIT

9 received the report of Mr Todd in July 1999, it should

10 have caused them to reassess the opinion which had

11 earlier been provided by Dr Murray?

12 A. I think Mr Todd's opinion should have stopped them in

13 their tracks and said, "Well, we have a problem here".

14 It would seem that Mr Todd had based his assessment on

15 documentary -- documents made available to him about the

16 comparison with other Loyalist devices. It possibly

17 would have been a sensible course of action to say,

18 "Let's get the physical items to him to see whether he

19 is still of the same opinion".

20 Q. Now, so far as that's concerned -- obviously that's one

21 of the things that, in your view, they could have done.

22 We have heard from M540 that Mr Todd's report was not

23 put to Dr Murray; in other words, they didn't go to

24 Dr Murray and say, "Dr Murray, you ought to look at

25 this. Does it cause you to change your own opinion?"

 

 

67

 

1 Is that something that you think should have been

2 done in this case?

3 A. I acknowledge that that would need to be done with some

4 sensitivity, but it did need to be done.

5 Q. And it looks as though, also from M540's evidence, the

6 decision was made not to put it to Dr Murray and not to

7 supply Mr Todd with the physical components, but simply

8 not to pursue, as it were, what Mr Todd had done any

9 further. What is your comment on that, please?

10 A. My comment is that it would seem strange to have asked

11 for an independent opinion and then not be concerned

12 when that independent opinion tells you something very

13 different from the first information. It would have

14 been necessary to get to the bottom of why that was the

15 case.

16 Q. Now, in their evidence and, indeed, in their

17 submissions, various points are made about this and one

18 of them is that Mr Todd's experience was much less in

19 terms of Northern Ireland terrorist devices than that of

20 Dr Murray. Do you think that that provides a reasonable

21 basis to, as it were, go with Dr Murray over Mr Todd in

22 this case?

23 A. No, I don't, sir. If it was worth asking for a second

24 opinion and choosing a person appropriately skilled to

25 give that second opinion, I think it would still have

 

 

68

 

1 been necessary to explore why that opinion was

2 different.

3 Q. Now, in the paragraph we have on the screen, 4.32.5, you

4 raise a specific point here about the Maghaberry Prison

5 incident and device, and what I would like you to do,

6 please, in your own words is to explain that issue to

7 us. What is the significance of that in your view?

8 A. Well, I think the significance is that Dr Murray had --

9 had said, as far as I can understand it, that he thought

10 the Maghaberry Prison device was closest in similarity

11 to the device that had been used in relation to the

12 Rosemary Nelson murder, and that he further said that he

13 could distinguish the Maghaberry Prison device from all

14 the others on the list, there having been a number of

15 others on a list of similar devices.

16 Q. Yes.

17 A. Now, the plain interpretation of that would seem that if

18 he could distinguish the Maghaberry Prison device, he

19 therefore, a fortiori, could distinguish the

20 Rosemary Nelson device from the others on the list. So

21 I think it was a very significant comment that he made

22 that, again, should have rung some alarm bells.

23 Q. And do you think that sufficient weight and attention

24 was given and paid to that opinion he was expressing?

25 A. No, I don't.

 

 

69

 

1 Q. Now, in dealing with this part of the case, as it were,

2 M540, who, of course, had responsibility within the team

3 for forensic issues, made the point that Mr Kinkaid had

4 direct personal experience of this case, indeed of the

5 feud that lay behind it, and said that that was one of

6 the matters, as I understood his evidence, which they

7 drew on, relied upon, in dealing with this apparent

8 oddity or inconsistency.

9 Isn't it reasonable for experienced investigators to

10 draw on their own experience in cases such as this?

11 A. Well, it is reasonable, but observing that there are

12 dangers in doing so, dangers that I think the Murder

13 Investigation Manual makes very clear -- that the danger

14 of making assumptions that are untested and the danger

15 that your own personal experience will affect the way

16 that you see things.

17 Notwithstanding that, however, I do not feel it

18 answers the essential point that here was a scientist

19 who was saying this device is very similar to the

20 Rosemary Nelson device, more similar than any other on

21 your list. I can make a distinction between this device

22 and all the rest. I still think that Mr Kinkaid's

23 personal knowledge of that device did not overcome the

24 inconsistency that was revealed in Dr Murray's opinion,

25 and that needed to be explored.

 

 

70

 

1 Q. Thank you. Can I just move on to 4.32.7 on the next

2 page, RNI-604-041 (displayed), because here, in

3 a paragraph where the relevant name has been redacted,

4 you draw together the forensic work on the similar

5 devices -- and you refer to a later report, I think, or

6 document by M540, who by then was the SIO. There is

7 that aspect, but you here bring up also the view that

8 the MIT had as to the actual identity of the bomb maker.

9 Do you see that?

10 A. Yes.

11 Q. And in their evidence, reference was made to

12 intelligence which pointed in that very particular

13 direction.

14 Now, so far as your assessment is concerned, what

15 impact, if any, should the forensic mismatch, if I can

16 put it that way, have had on the view that they took as

17 to the identity of the specific individual who had made

18 the bomb?

19 A. Well, I recognise that there were intelligence reports

20 that indicated the identity of a certain bomb maker, but

21 I think the attempt at comparison with other devices had

22 revealed, if anything -- support what the scientist

23 Clifford Todd had said, that any similarity was perhaps

24 limited to it being an under-vehicle improvised

25 explosive device and that any linking was tenuous --

 

 

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1 I think he said tenuous at best -- which then served to

2 call into question the identity of the bomb maker,

3 because if much of that was associated with his apparent

4 signature in relation to the construction of the device,

5 then clearly if the Rosemary Nelson device was unique in

6 its own right, then any signature was not going to be

7 evident.

8 I think there are other features of the intelligence

9 that the MIT had that pointed to the identity of the

10 bomb maker was -- did itself contain some

11 inconsistencies. And I think as the point throughout,

12 I would want to emphasise -- and it is, again,

13 emphasised as best practice in the murder investigation

14 manual for good reason -- I think it is right and proper

15 that you consciously look for evidence that points away

16 from your hypothesis, certainly as much as you look for

17 evidence that points to it.

18 I believe it was a point that Sir David Phillips

19 made in his evidence to the Inquiry that if you don't do

20 that, certainly the defence will.

21 Q. Can I, just so we are clear where this goes in your

22 report, ask to you look at 15.14, which is at

23 RNI-615-016 and RNI-615-017 (displayed) because as I

24 understand it, what you are saying there, at the top of

25 RNI-615-017 is that based on what you have seen, there

 

 

72

 

1 should, in your view, have been a reconsideration of the

2 status of the particular individual as the likely bomb

3 maker. And as far as you can tell there was not?

4 A. That's true.

5 Q. Now, in a similar area, can I ask you, please, just

6 a few questions about one of the elements of the device,

7 namely the magnets. This you deal with in another

8 chapter of your report, chapter 8, at 8.64, which is at

9 RNI-608-121 (displayed).

10 Looking at this first, before asking some specific

11 questions, you deal with the magnets and their unusual,

12 or as you put it, unique nature in 8.64.3 at the bottom

13 of the page. There you raise a number of questions or

14 theories that you say could easily have been raised at

15 the time, as I understand it.

16 If we go on to RNI-608-122, that would be helpful --

17 RNI-608-121 on the left and RNI-608-122 on the right

18 would be even better (displayed). Thank you very much.

19 So, again, to be clear, this is a line of enquiry

20 that was necessary and justifiable in your view; is that

21 right?

22 A. Certainly, yes.

23 Q. And in terms of the way in which the Murder

24 Investigation Team undertook that line of enquiry, can

25 I now ask you to turn over to the assessment section,

 

 

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1 8.65, which begins at RNI-608-127. Could we have that

2 and RNI-607-128 on the screen, please (displayed)?

3 Now, unfortunately there has been a heavy redaction

4 in the second paragraph, thus rather removing the point

5 of the commendation you are seeking to make there, but

6 as I understand it, the criticism you make of the

7 treatment of this part of the MIT's work is at 8.45.4;

8 is that correct?

9 A. Yes.

10 Q. Where you say that:

11 "They didn't take as far as they should have done

12 with the manufacturer what may or may not have happened

13 to the magnets and rather proceeded on the basis that

14 they came from a particular source, the shipyard in East

15 Belfast"?

16 A. Yes, I think it was a reasonable assumption to make that

17 they came from the shipyard in Belfast. However, they

18 are in the business of checking out assumptions and

19 making sure that we copper bottomed this. And this line

20 of enquiry, I felt, had been left incomplete in as much

21 as we did not know how many other firms had been

22 supplied with similar equipment, we did not know how

23 many distribution outlets there were in

24 Northern Ireland, in the Republic of Ireland or, indeed,

25 elsewhere in the United Kingdom.

 

 

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1 So it was not possible to finally and conclusively

2 conclude, particularly in the light of the forensic

3 evidence that had failed to identify a physical match

4 with the magnets that had been recovered from the device

5 and the rails that had been taken from the shipyard.

6 Q. Yes.

7 A. And they were, after all, welding magnets and other

8 people use welding magnets.

9 Q. In this connection, can I ask you: to what extent in

10 your view was the scope of the MIT's work shaped by the

11 view they had clearly formed that the device was made by

12 a particular individual?

13 A. That appeared to be a consideration in their thinking.

14 Q. And doesn't it follow from that that if they were wrong

15 about the identity of the bomb maker, then all of these

16 other matters might to some extent also have fallen

17 away?

18 A. That's true.

19 Q. Now, so far as your overall view about the way in which

20 this line of enquiry was addressed, we can see that if

21 we go back to chapter 4 and look at RNI-604-042

22 (displayed) and paragraph 4.32.11. Here you are talking

23 again about the overall question of similar devices and

24 you criticise it for being unstructured and you express

25 the view that that led to some confusion.

 

 

75

 

1 Now, so far as the SMT are concerned, in their

2 submissions they say that this line of query, the

3 similar devices line, was under constant review during

4 the course of the murder investigation. Is that

5 something that, as far as you could tell, is borne out

6 by the material you have considered?

7 A. There is no documentary evidence of it being

8 fundamentally reviewed or reassessed. I think I have

9 conceded before that, of course, a murder investigation

10 will talk regularly amongst themselves in respect of

11 lines of enquiry, but I here mean something quite

12 different when I say that one has an obligation to

13 review the progress of a line of enquiry, look to see

14 what evidence you have gathered and ask whether that

15 evidence continues to support your hypothesis.

16 Here I'm making the point that with, in particular,

17 the opinion expressed by Clifford Todd -- that it would

18 have been appropriate to stand back and again formalise

19 a properly structured reassessment of exactly where they

20 were, what pointers they had to suggest that they were

21 on the right track and they had evidence that

22 implicated, but also obliged to stand back and say,

23 "Well, what is the big picture telling us? Are there

24 indications that this isn't the case, as we expected?"

25 And it is necessary to have that formalised reappraisal

 

 

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1 and, in my view, document it because it is a very

2 necessary process and a very necessary part of leaving

3 an audit trail of where you were in an enquiry at any

4 time.

5 Q. So as I understand it, that sort of structure, that sort

6 of formalised process assists in ensuring that minds

7 genuinely are kept open to other possibilities?

8 A. Yes.

9 Q. Now, bringing these various points together under the

10 heading of the single hypothesis, can I ask you, please,

11 to look at chapter 16 of your report at RNI-615-006

12 (displayed)? Here at the bottom of the page -- and as

13 usual it goes over on to RNI-615-007, so could we have

14 that on the screen as well, please (displayed)? Thank

15 you very much.

16 You set out what you describe as the basics of any

17 well conducted murder investigation and the ingredients,

18 as you put it, are in the bullet points, the first

19 being:

20 "Guarding against the acceptance of assumptions and

21 rigorously challenging the assumptions made by others."

22 Then you give some detail, but then on the other

23 page:

24 "Developing different hypotheses and then seeking to

25 validate or eliminate them."

 

 

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1 Then next, victimology, which we will come to. But

2 so far as those first two, which we have been looking at

3 together in some detail now, were, in your view, those

4 fundamental ingredients present in this investigation?

5 A. There was an absence of documentary evidence to say that

6 they had taken place.

7 Q. And, again, can I ask you, please, in relation to the

8 hypothesis and guarding against the acceptance of

9 assumptions, does it amount to this: that in the absence

10 of relevant documents but having heard the relevant

11 evidence and read the witness statements, you are not

12 inclined to change your view?

13 A. That I'm not, sir, yes, that's correct.

14 MR PHILLIPS: Sir, I'm just about to move on to another

15 topic, namely victimology or, as I think some people

16 have said, victim-centred enquiries. Would this be

17 a convenient moment for a break?

18 THE CHAIRMAN: Yes, certainly. We will have a break until

19 a couple of minutes after 4 o'clock.

20 (3.45 pm)

21 (Short break)

22 (4.03 pm)

23 THE CHAIRMAN: Yes.

24 MR PHILLIPS: Sir, so far as timing is concerned, so

25 everybody in this room knows what is going on, the

 

 

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1 stenographer has kindly indicated that she is prepared

2 to carry on working until 6 o'clock and, moreover, that

3 she will be prepared to have a shorter than usual break

4 at about 5 o'clock.

5 THE CHAIRMAN: Yes.

6 MR PHILLIPS: And so on that basis I'm going to do what I

7 can to finish my questioning of Mr Ayling by then.

8 Can I ask you one question I should have raised with

9 you in looking at the question of the magnets? You said

10 in one of your answers on that topic -- and, indeed, we

11 saw it in your report -- that no forensic link between

12 the Harland and Wolff magnets and the magnets used in

13 the device was established.

14 What, though, of the point that M540, I think, made

15 in his evidence, that putting the scientists, as it

16 were, to one side and just looking at it as an

17 intelligence layman, intelligence investigator indeed,

18 there were obvious physical similarities between the

19 two? Isn't that a fair point?

20 A. I think it is quite a dangerous point, sir, because the

21 forensic science, which as a science, is saying that --

22 the science says that this magnet doesn't match this

23 rail, it hasn't come from that rail, so to put that

24 aside and say, "But my human eye tells me it does" is

25 dangerous.

 

 

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1 Q. So, as it were, the expert investigator's eye is no

2 replacement for the forensic scientist's opinion?

3 A. No.

4 Q. Can we turn to the question of victimology, and this you

5 deal with in chapter 6 of your report. We can see the

6 guidance from the MIM at RNI-616-293 first of all

7 (displayed).

8 There it explains what victimology means and then

9 under a series of subheadings in bullet point form

10 various topics in relation to the victim and the

11 enquiries in relation to the victim are made.

12 Now, so far as they are concerned, if we can just

13 shift that to the left, please, what we see in your

14 report at RNI-606-002 (displayed) -- if we have is that

15 on the right, please -- is that you take some of these

16 headings, don't you, and make various comments about

17 them in the context of this particular case?

18 A. Yes.

19 Q. And that, for everybody's note, continues to RNI-606-005

20 (displayed) where you deal lastly with the question of

21 relationships, which is obviously the last of the bullet

22 points at the bottom of that page.

23 Now, as I'm sure you know, Mr Provoost gave evidence

24 about this topic and one of the points he was anxious to

25 make in his evidence is that, as he saw it, there was

 

 

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1 a difference between victimology and victim-centred

2 enquiries. Now, is that a difference which you yourself

3 acknowledge?

4 A. Without a further explanation, I would say, no, I think

5 they are one and the same thing.

6 Q. In other words, it is a question of terminology; is that

7 right?

8 A. Yes.

9 Q. Now, just keeping that list of bullet points and the

10 bold headings on the left, would it be fair to say that

11 it is not in every enquiry, every murder enquiry, that

12 it is appropriate to make enquiries in relation to each

13 and every one of those categories on the left?

14 A. That's correct.

15 Q. And is this another example of how guidance in the

16 manual has to be applied flexibly on the ground, as it

17 were?

18 A. Yes. Clearly the manual is intended to cover a wide

19 range of homicides, and some would be applicable in all

20 homicides, in other cases not all would be.

21 Q. Now, we have heard evidence to the effect that the

22 murder manual brought together existing best practice.

23 Is it right to say in relation to victimology, or

24 whatever other term is used, that this was established

25 best practice in relation to murder investigations

 

 

81

 

1 before the introduction of the murder manual?

2 A. Yes.

3 Q. And in relation to this case, can I ask you: what did

4 you make of the suggestion from Mr Provoost that the

5 investigator should impose limits on the information he

6 gathered in in relation to a victim, and indeed he made

7 the suggestion that you could in fact have too much

8 information on a victim; what did you make of that

9 evidence?

10 A. It was to my mind a rather puzzling statement. Said

11 literally, I couldn't agree with it. I would need to

12 discuss what was behind those comments.

13 Q. Well, he put it another way in another part of his

14 evidence, where he said that the right test was what do

15 I need to do in terms of this victim that's going to

16 advance my murder investigation. Now, is that, in your

17 view, a workable test?

18 A. It is approaching it. I suppose I would like to come at

19 it the other way round. I think -- you know, in all

20 murder investigations there are some very basic

21 questions. There is, of course, how was the murder

22 committed. In this case, we know how the murder was

23 committed. There is: where was the murder committed.

24 We can be pretty sure that that was at Rosemary Nelson's

25 home address, although one would need to keep an open

 

 

82

 

1 mind that there was a possibility the device may have

2 been placed elsewhere. The big question is who

3 committed the crime.

4 But I think the other big question, which goes to

5 the heart of victimology is why. One can't make

6 assumptions that you know. It is necessary to explore

7 through victim enquiries to answer that question: why

8 this victim? Why was Rosemary Nelson targeted? Was

9 somebody else intended to be the target? Issues of why,

10 I think, can only rarely be explored through

11 a victimology line of enquiry. Why this victim? Why

12 targeted in this way? Why at this time?

13 Q. Now, what I would like to do now, please, is to look

14 with you at an early reference through this as a line of

15 enquiry, which we see on 20 March in the policy file at

16 RNI-616-779 (displayed). Here at the bottom of the

17 page -- or rather, in fact, the only bit of the page

18 that is readable -- we see policy decision 28 made or

19 rather authorised by Mr Kinkaid, and the decision is:

20 "That family members and workmates would be

21 approached in a coordinated manner [and] where possible

22 this should be initiated by a meeting with such persons

23 involving the SIO and FBI/Kent representatives.

24 REASONS: To advise such persons on our role and

25 independence. To develop an assessment of the victim as

 

 

83

 

1 per the section of victimology at page 30 of the Murder

2 Investigation Manual. To gather evidence on threats

3 collusion."

4 So if we take that as the starting point and then,

5 as it were, proceed to the end and your view of the

6 overall work done in this regard, in the light of the

7 evidence you have heard on this topic, is it your view

8 that a full victimology was carried out in this case?

9 A. There is not the documentary evidence to support that,

10 no. It seems that the full victimology was not

11 completed.

12 Q. And in relation to that, were you able to determine

13 whether a deliberate decision not to do so was made and,

14 if so, who made it?

15 A. Throughout there is a lack of documentary evidence, but

16 I think that there are decisions made within the senior

17 management team, and I think probably by the SIO,

18 Mr Kinkaid, that would have taken this line of enquiry

19 forward, where there is a decision made to not advance

20 it down that path.

21 Now, that would only be one dimension of

22 victimology, but I also think that during the oral

23 evidence given by members of the senior management team,

24 in terms of what they have said in their oral evidence,

25 that would suggest that they did not believe it would

 

 

84

 

1 advance their investigation.

2 Q. Well, the various points were raised in this regard,

3 weren't they, in the evidence? One of them, for

4 example, was that because of the nature of the murder,

5 as they saw it, namely that it was a terrorist crime, as

6 Mr Kinkaid put it:

7 "Early indications did not suggest that I should

8 start an in-depth assessment of her lifestyle."

9 And as he explained:

10 "... because the selection of the victim had nothing

11 to do with their personal life."

12 That is the way he put it in relation to terrorist

13 murders. What is your response to the suggestion that

14 in cases of this kind, the terrorist cases, it is simply

15 not appropriate to pursue victim enquiries or

16 victimology in this way?

17 A. With great respect to Mr Kinkaid's background and

18 experience, I think that that falls into the category of

19 being an assumption, and one thing is certain: that

20 Rosemary Nelson was targeted by some group or groups and

21 it still raises the question why. It isn't sufficient

22 in my view simply to say that she, because of her

23 particular profile, was a hate figure. I think if you

24 were needing to understand -- in order to stand the best

25 chance of catching the perpetrators, you need to

 

 

85

 

1 understand more about their motive and it might assist

2 you in the direction to look for her particular

3 attackers.

4 Q. Now, the other aspect that emerged from the evidence was

5 the sense that, because they were -- Mr Kinkaid and

6 M540 -- very experienced RUC officers, very, very

7 familiar with the context of Northern Ireland, that they

8 knew enough, as it were, and didn't need to spend a lot

9 of time and energy investigating further. Can I just

10 quote an exchange I had with Mr Kinkaid.

11 "Question: What I'm asking you is this: wouldn't it

12 have been of relevance and interest to you to know as

13 much as you could about her, about the sort of work she

14 was doing, the sort of clients she had, the sort of

15 individuals she acted for?

16 "Answer: But I knew that. I didn't need

17 intelligence to tell me that."

18 Now, is that in your view a reasonable approach to

19 this aspect of the enquiry for him to have taken in this

20 case?

21 A. No.

22 Q. Is it that for the same reason, essentially, which takes

23 us back to the open mind?

24 A. Yes, and not making assumptions, but seeking to check --

25 based upon your experience, seeking to check out what

 

 

86

 

1 you believe had happened or why, so that to the maximum

2 effect you can take advantage of all the information

3 that's available.

4 Q. Now, can I just pick up some aspects of this with you,

5 and they are aspects obviously that you deal with in

6 chapter 6 of your report, which is devoted to the topic.

7 The first I want to look at with you is that

8 concerning the scene at RNI-606-005, paragraph 6.2

9 (displayed). Here you deal with the question of

10 personal possessions, the handbag, and you refer on the

11 next page to what you call a "second diary".

12 Now, what criticism would you make of the MIT and

13 their work in this aspect?

14 A. I think the issue is this: that Rosemary Nelson's

15 handbag, which contained a diary and address book, as we

16 know now, her mobile phone and, indeed, one of the

17 threatening letters -- I think one of the letters that

18 the Murder Investigation Team had spent some

19 considerable time trying to track down the original --

20 was contained in her handbag, and at the time the MIT

21 were unable to account for where it has gone. It

22 transpired later, of course, to have been in the

23 possession of her husband, and they were denied the

24 opportunity to have the opportunity of looking at the

25 diary. Indeed the mobile phone and her address book,

 

 

87

 

1 which may have been pointers to appointments that she

2 had made, notes that she might have made and, of course,

3 the threat letter, in view of the fact this she had

4 subsequently been killed, was obviously of significant

5 importance. And at that time that that never came into

6 the possession of the investigation team is regrettable.

7 And, indeed, I think the second diary, which was

8 recovered from the vehicle, was again apparently

9 returned without being examined by the investigation

10 team.

11 Q. So as I understand it, what you say here at 6.2.4 is

12 that these were opportunities missed in terms of the

13 team's ability to construct a profile of the victim

14 whose matter they are investigating?

15 A. Yes, to make a total assessment of the victim, indeed.

16 Q. Now, in terms of the next topic you address -- that's

17 her movements the previous weekend -- what opportunities

18 in your view were lost by the way in which this aspect

19 of the investigation was conducted?

20 A. I think the issue here is that clearly that weekend the

21 Nelson family were away from the family home and had

22 gone, indeed, to their holiday home. Rosemary Nelson

23 was targeted, somebody, possibly, needed to be watching

24 her movements in order to attach the device. We do know

25 the device was unique because of the power of the

 

 

88

 

1 magnets that attached it to the vehicle. I think they

2 had a combined supporting weight of 360 kilogrammes,

3 which, you know, is quite enormous.

4 Asking the question, well, why would you need

5 batteries -- magnets of that enormous strength, I think

6 it opens up the possibility that one would need to

7 explore that the device was attached elsewhere than at

8 Rosemary Nelson's home and, if not armed at that time,

9 was certainly attached. So you would need to explore

10 her movements over the weekend to understand where her

11 vehicle had been, what the opportunities might have been

12 to attach it at any particular time, at any particular

13 location, I think in order to properly determine

14 a hypothesis as to when it was actually placed, rather

15 than assume that it was placed under her vehicle at her

16 home address.

17 Q. Would it be fair to say, though, that this is part of

18 the aim that you mentioned of, as it were, exploring, if

19 only to eliminate, the unlikely or the less likely

20 possibilities rather than seeking to back up the more

21 likely?

22 A. Yes, indeed.

23 Q. So in a sense what you are criticising here is a failure

24 to do sufficient investigative work, if necessary, to

25 rule something out?

 

 

89

 

1 A. Indeed.

2 Q. Yes. Now, what of the point in this connection -- which

3 we will come to in greater detail on other victimology

4 points in a moment -- made, I think, by Mr Kinkaid, that

5 to have gone into a detailed investigation of her

6 movements over the weekend would have been to call into

7 question the accounts given by her family; in other

8 words, to suggest that those were inaccurate or false.

9 Was that a bar on undertaking the work, in your view?

10 A. I don't think it was a bar. Clearly I acknowledge that

11 there were -- the family would have needed very

12 sensitive handling to understand. That's the case,

13 I think, with the family and relatives of most murder

14 victims, but it is certainly more often the case and to

15 a greater degree of sensitivity when dealing with the

16 divide in Northern Ireland. So I do acknowledge there

17 are issues there.

18 But I actually think you need the family's support

19 to explore these issues and, of course, part and parcel

20 of the training and appointment of family liaison

21 officers is to gain the trust of families and close

22 relatives in order for them to understand why it is

23 necessary for an investigation team to be asking

24 questions which, on the face of it, seem to be intrusive

25 and they have difficulty in seeing the relevance in

 

 

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1 terms of catching the perpetrators of the crime.

2 Q. Can I ask you -- since you have made those comments --

3 in your view does that apply more generally to the more

4 sensitive areas of victimology, that it is really

5 a question of finding the right way?

6 A. Yes.

7 Q. Now, Mr Humphreys in his evidence to the Inquiry in

8 relation to possible difficulties with the family in

9 this regard, said that whilst those difficulties were

10 frustrating for the MIT, it was no reason not to pursue

11 victimology, victim enquiries, with vigour. It sounds

12 as though you agree with that?

13 A. I do agree, but I would emphasise again that I do

14 acknowledge that it was a massively sensitive subject

15 and would have been very challenging for the

16 investigation team to take forward.

17 Q. Now, so far as other specific aspects are concerned, can

18 I ask you next about clients, and that you address at

19 6.377, RNI-606-008 (displayed). Can I ask simply this:

20 how would this sort of investigation have assisted the

21 MIT in building a profile of the Rosemary Nelson?

22 A. Well, clearly Rosemary Nelson in her solicitor's

23 practice had a range of clients that she acted for, some

24 particularly high profile clients, and the way in which

25 she had acted for them and the outcomes that she might

 

 

91

 

1 have achieved for them would clearly have been -- or

2 perhaps have been relevant to why she was targeted.

3 There is even a possibility that there were issues

4 around her clients rather than herself, which would need

5 to be taken into account.

6 Q. Can I look at some specific evidence on this from

7 Mr Port, and start with his statement, which is at

8 RNI-817-446 and paragraph 83 (displayed).

9 Here he gave the opinion and view that one of the

10 reasons she was targeted is because of her professional

11 relationship with Colin Duffy, and you may remember that

12 in his evidence he expanded on this point by adding

13 another, separate, point and specifically that in his

14 opinion her connection as a lawyer with

15 Breandan Mac Cionnaith was an important factor in her

16 murder.

17 Now, just picking up that aspect of the issue, were

18 you aware of that and that view taken by Mr Port at the

19 time you wrote your report?

20 A. I wasn't aware of that view because it was not

21 documented anywhere for me to be aware of it.

22 Q. Now, what he said to us about it in the open session was

23 that information came to him in the context of the

24 collusion enquiries and that it, therefore, was a matter

25 that couldn't be shared with the RUC officers,

 

 

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1 including, of course, the then SIO and his deputy.

2 How significant a problem in this area was it for

3 the investigation, in your view, that apparently

4 significant information or intelligence of this kind

5 could not be transmitted to the SIO?

6 A. Inevitably it would give rise to some difficulties.

7 Perhaps those difficulties could be managed to some

8 extent, even to a large extent, but they would still

9 exist.

10 (Redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted).

22 So I think that -- without sharing the source of the

23 information, I think that that would have been a reason

24 to ensure that the victimology line of enquiry explored,

25 for instance, that suggestion.

 

 

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1 Q. That was obviously my next question. But obviously

2 based on what you have seen and now heard, is there any

3 indication that that particular suggestion was

4 investigated by the Murder Investigation Team?

5 A. There is no documentary evidence that that's the case.

6 Q. And in the same connection, how significant do you

7 believe it is that, as far as one can tell, the Murder

8 Investigation Team made no request of Special Branch for

9 their intelligence in relation to Rosemary Nelson's

10 relationship with and work for the GRRC?

11 A. Again, from the audit trail there is no evidence that

12 that happened.

13 Q. And in your view, should they have done so? Should they

14 have sought to task Special Branch to provide them with

15 whatever they had on that relationship?

16 A. Well, the short answer is yes, because it is part of

17 a total assessment of the victim and there was an

18 indication that -- from someone close to her who knew

19 her, that this was a possible way of advancing their

20 enquiry.

21 Q. Can I just ask you now some brief questions about

22 telephones? It is the next aspect you deal with.

23 RNI-606-008 (displayed) and paragraph 6.4.1 is where you

24 begin to deal with this in your report. It goes over to

25 the next page.

 

 

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1 In your experience, is this sort of research into

2 telephone activity standard in murder investigations?

3 A. Yes, it is very often a fruitful line of enquiry.

4 Q. Were there reasons in your opinion not to pursue that

5 line of enquiry in this case?

6 A. Again, I would repeat that I acknowledge that there were

7 sensitivities that had to be taken account of but that

8 would not have amounted to a reason not to pursue

9 a telephone investigation on those lines.

10 Q. Now, in dealing with this aspect of the matter,

11 Mr Kinkaid made -- at least I'm sure he made more than

12 two points, but he certainly made the following points

13 that I would like to put to you.

14 The first is that this sort of investigation was

15 simply not appropriate as there was no doubt in this

16 case as to the motive, as to the type of device and as

17 to where the device was put on to the car; in other

18 words, where the location of the offence had taken

19 place.

20 What is your answer to the suggestion that that made

21 these sorts of enquiries inappropriate?

22 A. I would have to say that I could not agree.

23 Q. And can you say briefly why?

24 A. Because that account that you have just given to me of

25 Mr Kinkaid's contains assumptions that I believe at this

 

 

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1 time cannot be relied upon and should be questioned and

2 part of an open minded approach. And to me, it doesn't

3 demonstrate an open-minded approach and, for all the

4 respects I said before about exploring fully the

5 motive -- why was this particular victim targeted; why

6 did the attack take place at this time -- then I think

7 that there is the potential to advance your

8 investigation through an analysis of what telephone

9 traffic had been taking place with the telephones that

10 Rosemary Nelson would have had access to.

11 Q. Now, he made two further points on this, the first in

12 relation to the cell site analysis that the mobile --

13 suggestion you make in your report. His comment was

14 that that was bizarre because in essence it would amount

15 to disbelieving the accounts that had been given as to

16 the her movements over the previous weekend.

17 Now, was that in your view a sufficient reason to

18 make this, i.e. cell site analysis, inappropriate in this

19 case?

20 A. It wasn't a reason to make it inappropriate.

21 Q. Does it take us back to the comment you made in relation

22 to investigating her movements on the previous weekend?

23 A. Yes, indeed, yes.

24 Q. Now, the final comment he made, which he made in his

25 statement on due diligence and then expanded it in his

 

 

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1 evidence, was that there were all sorts of legal

2 considerations, legislation, applying to requests of

3 this kind which made it inappropriate. As far as you

4 are concerned -- I appreciate you are not a lawyer --

5 were any of those a bar to undertaking this sort of

6 investigation in this case?

7 A. No.

8 Q. And do any of them in your view render the pursuit of

9 this sort of investigation inappropriate in this case?

10 A. Not in my view.

11 Q. Now, the final issue I want to raise with you in

12 relation to victim enquiries, victimology, relates to

13 the alleged affair between Rosemary Nelson and

14 Colin Duffy, and you deal with this in your report in

15 6.5, which begins at RNI-606-009 (displayed). Just

16 taking you through it briefly, on the next page,

17 RNI-606-010 (displayed), you cite various pieces of

18 information that came in to the investigation over the

19 months. And in particular at 6.5.6, for example, we

20 have the conversation with the journalist to which

21 reference was made in the evidence. Then at 6.5.8 on

22 the next page, an anonymous telephone call in fact at

23 the end of August the following year.

24 In your view, did the Murder Investigation Team

25 pursue this line of enquiry with sufficient vigour?

 

 

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1 A. No.

2 Q. What, in brief, are your reasons for that opinion?

3 A. I think, based upon the documentary evidence, that it is

4 clear that they had some of the intelligence that

5 suggested there was possibly a relationship of the kind

6 you have described, and it would be a proper course of

7 action for the investigation team to want to know what

8 further information or intelligence was held by

9 Special Branch in relation to that. And they didn't

10 seek that, and I think they possibly missed an

11 opportunity to understand that there was another

12 scenario that they might have considered that was denied

13 to them because they chose not to pursue seeking more

14 information.

15 Q. To what extent do you believe that information on this

16 allegation would also have assisted them in their

17 collusion enquiries?

18 A. Well, clearly in this area there is the potential to be

19 assisted in their collusion enquiries with many of the

20 victim-related enquiries that could have been completed.

21 This is no exception and there is a possibility that

22 they could have uncovered material that would have been

23 useful in taking that line forward.

24 Q. Now, can I just remind you of some of the evidence on

25 whether or not discussion of, rumours of, the alleged

 

 

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1 relationship would have increased the threat or risk to

2 Rosemary Nelson.

3 Mr Kinkaid suggested in his view that it would not

4 have increased the threat or risk to her, but as you no

5 doubt remember, Mr Port, in answers to questions from

6 me, accepted that if she had been believed to have had

7 a personal relationship with Colin Duffy, i.e. not just

8 a professional one, that that would have made her even

9 more of a hate figure and, therefore, an obvious target.

10 Now, so far as your assessment of the matter is

11 concerned, which do you think was on the right track?

12 A. I think Mr Port's is the logical conclusion based upon

13 the information as we have it, and yes, I think that

14 goes to the question of why she was possibly targeted.

15 Q. Now, so far as Mr Port's general evidence on this aspect

16 of victimology is concerned, he was saying I think --

17 I hope he will forgive the summary -- that this is an

18 example of hindsight, and he said specifically that if

19 he had spent more time, more resources on investigating

20 this aspect, you would have criticised him for devoting

21 too much resources to what he described as the nonsense

22 of the relationship, or potential or possible

23 relationship, and possible implications of it. What is

24 your answer to that suggestion?

25 A. My response would be to sadly conclude that that is

 

 

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1 demonstrating a rather closed mind. I also think that,

2 helpfully, at another point Mr Port had said that you

3 don't know what you don't know. I agree with that, but

4 you never will know it unless you ask the right

5 questions and explore the right avenues.

6 Q. Now, on that specific topic, you will remember that

7 Mr Port also addressed in his evidence the requests he

8 had made, he says on a number of occasions, of

9 Special Branch for confirmation or otherwise as to

10 whether or not there was a file on Rosemary Nelson. And

11 we looked together at various documents about that,

12 including journal entries made by the then Head of

13 Special Branch. You will no doubt remember them.

14 Wasn't that an example of where Mr Port was seeking

15 to get appropriate information and was pursuing that

16 apparently in the face of denials?

17 A. Yes, I think it is an example.

18 Q. Isn't that to be commended?

19 A. Yes, indeed.

20 Q. Now, just returning briefly to the question of the

21 sensitivities and the difficulties that you acknowledge,

22 I think, which would have confronted the MIT had they

23 sought to pursue these matters further, I put to you

24 Mr Humphreys’ evidence about this, which, as it were,

25 puts it at a pretty general level. If you agree with

 

 

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1 him, as I think you do, the question arises: in the

2 context of Northern Ireland as it was at the time and of

3 this murder in particular, how should the investigation

4 team have gone about pursuing these victim enquiries?

5 A. Well, I think the opportunities to explore the

6 intelligence reports that they had in relation to the

7 alleged relationship were such that they could have

8 requested more information, and based upon what I know

9 now that the Special Branch had in that respect, it

10 could have opened the door to them being given more

11 information because I think, as I have suggested

12 earlier, it is the nature and culture of Special Branch

13 that even when they are doing their utmost to be

14 helpful, they are helpful within the parameters of the

15 particular question that you have asked them.

16 So I think it would have widened the general

17 question, which would possibly have given access to

18 Special Branch information which, had the Murder

19 Investigation Team had, I think would have enabled them

20 to have at least considered an alternative hypothesis or

21 a number of alternative hypotheses in relation to her

22 murder.

23 I think in relation to the family and the

24 sensitivities that we have described, many of the victim

25 enquiries that would support this line of enquiry could

 

 

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1 have been done without the family necessarily being

2 aware that that was happening; for instance, the

3 Special Branch intelligence would have fallen into that

4 category, to some extent the telephone analysis would

5 have fallen into that category.

6 I'm not suggesting for one moment that one misleads

7 the family as to what one is doing, and I acknowledge

8 that there are great sensitivities here, but one of the

9 reasons for introducing family liaison officers is to

10 establish the relationship with the family that enables

11 them, one, to seek information from the family relevant

12 to the progressing of the investigations' lines of

13 enquiry, but also to help the family understand why that

14 information is sought and what use it is going to be put

15 to and what confidentiality may be provided around it.

16 So I do not see these things as bars, but I don't

17 apologise, again, for reiterating that it is under these

18 circumstances a very sensitive area that needs to be

19 handled with the utmost care.

20 Q. Now, looking at what the MIT, the SMT, the senior

21 management team, have said about it, we know from

22 Mr Kinkaid that so far as he was concerned, sufficient

23 was done in this regard and there was, as it were,

24 a judgment not to take the matter further. And

25 Mr Provoost described the enquiries that had been made

 

 

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1 as proportionate and necessary, making it clear that he

2 thought they had done what was proportionate and

3 necessary in the case.

4 Isn't there a danger here that your judgment is

5 somewhat unrealistic? It is rather a council of

6 perfection than something that was actually reasonable

7 in the circumstances of the time?

8 A. No, I don't believe it is. I think victim-centred

9 enquiries, or victimology, whatever you like to call it,

10 has always been a fundamental aspect to a murder

11 enquiry. It is applicable here because the victim was

12 targeted for some reason, and I think it is necessary to

13 make enquiries to find out what that reason might have

14 been.

15 Q. But isn't this where the point Mr Kinkaid made in

16 paragraph 159 of his due diligence statement at

17 RNI-811-099 (displayed) comes into play? Because

18 that -- unfortunately, it's in the middle of the

19 paragraph -- shows us the examples he cites of the

20 murders of Airey Neve and Lord Mountbatten amongst

21 others. And the point he is making there is that these

22 were regarded as obviously terrorist offences and he

23 doubts that any need to explore, for example, the

24 victimology of Lord Mountbatten was thought appropriate

25 in that case.

 

 

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1 Now, isn't that a fair point for him to make in

2 relation to this investigation?

3 A. I understand why he is making the point, but I think

4 that there is a distinction between terrorist murders of

5 that nature and the murder of Rosemary Nelson.

6 Q. Can you explain to us what in your view that

7 distinction is?

8 A. Well, the issue with Rosemary Nelson is that she was

9 targeted for possibly the work that she was involved

10 with, for the people that she was associating with

11 professionally and perhaps in her private life also.

12 And that is intricately wrapped up in why she was chosen

13 as a target.

14 I think if we take the murder of Lord Mountbatten,

15 he was targeted because of his profile, no doubt as

16 a member of the British Royal Family, and assassinated

17 on that basis.

18 Q. Can I just ask you, finally on this topic, to look with

19 me at chapter 15 of your report at RNI-615-010,

20 paragraph 15.10.8 (displayed) because here you are

21 flagging up what I believe to be another gap, as it

22 were; in other words, why it was that the Murder

23 Investigation Team determined that victimology was not

24 justified. And the simple question I wanted to ask you

25 is whether the evidence that has been given has helped

 

 

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1 you to understand that or at least to shed some light

2 on it?

3 A. It has not, in my view, helped me to shed light on that

4 position.

5 Q. Can we turn to Operation George, as it is sometimes

6 referred to. This you deal with in chapter 10 of your

7 report, beginning at RNI-610-001 (displayed). This is,

8 even by your standards, a very substantial chapter of

9 the report, and what I would like to do is to try to

10 trace the points that you are making there so far as

11 relevant to the five issues identified in the Inquiry

12 Solicitor's letter of 12 January.

13 Now, looking first at your assessment in the

14 chapter, which is a rather pithier way of dealing with

15 it, if we look at 10.51 at RNI-610-060 (displayed), we

16 will see right at the outset, as you have already

17 indicated in your evidence, that so far as the operation

18 itself was concerned, you regard it as a remarkable

19 piece of policing, or police work. Is that right?

20 A. Yes, an outstanding piece of police work.

21 Q. Thank you. And as I understand it, the key aspects of

22 your assessment, so far as the issues we are concerned

23 with today are concerned, begin at 10.15.4, at

24 RNI-610-061 (displayed) where essentially you say:

25 "If it had had as its target an investigation of the

 

 

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1 Mid Ulster LVF, with the objective of dismantling its

2 leadership, then it would rightly be described as an

3 unbridled operational success."

4 The point you are making, as I know it, is in fact

5 the target was not that but the investigation of

6 Rosemary Nelson and of those believed to be responsible.

7 And can I take it that in that regard you don't regard

8 it as an unbridled operational success?

9 A. In respect of gathering evidence to identify

10 Rosemary Nelson's killers, that's certainly true.

11 Q. Yes. And you trace the history, as you see it, at the

12 bottom of the page, 10.58. It commenced as a dedicated

13 investigation into the murder of Rosemary Nelson, but

14 quickly developed in the more general way that we have

15 already seen in your report. And at the top of the next

16 page, so far as we are concerned the nub of it was that

17 it became the focus of the resources and, indeed, the

18 energy of the investigation.

19 A. That's the way that it appears from the documentation.

20 Q. Yes. And on the question of documentation, you deal at

21 10.59 with the absence of evidence of consideration

22 given by the SMT to this, as it were, challenge in terms

23 of energy and resourcing. And as I understand it, in

24 this case also one of the questions you raise concerns

25 the documentation, the recording of what the

 

 

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1 investigation team was doing over the years. Is that

2 right?

3 A. In relation to Operation George?

4 Q. Yes.

5 A. Yes, there is no recording of the strategy. Again,

6 I think the assessment team has put together what the

7 strategy was from a mass of material, but it is not

8 actually documented, which I would regard as unusual

9 because of the major use of resources in this line of

10 enquiry.

11 MR PHILLIPS: Sir, would that be a convenient moment?

12 THE CHAIRMAN: We will have a 10-minute break this time.

13 (4.59 pm)

14 (Short break)

15 (5.10 pm)

16 MR PHILLIPS: Now, can we go back to the assessment part of

17 this chapter, please, 10.15.15, because I think that

18 will help us to see the criticisms you make. That's

19 RNI-610-064 (displayed). Here you are again talking

20 about the change in focus, and essentially the short

21 point you make there, as I understand it, is that the

22 Intelligence Cell should be there to support the MIR,

23 and in fact what happened as far as you can see is that

24 the Intelligence Cell came to drive the enquiry with the

25 MIR in a subordinate role?

 

 

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1 A. That's the way it appeared from the documents that we

2 were able to have access to.

3 Q. Yes. Now, can we just pick up a few specific points

4 along the way and start by looking at the policy file

5 decision on 3 June 1999? That's RNI-909-172

6 (displayed). We have looked at this with various

7 witnesses:

8 "The Intelligence gathering aspect of the

9 investigation now represents the most important line of

10 enquiry."

11 You will remember, I hope, that in his evidence

12 Mr Port qualified that by saying that it should have

13 been expressed as the most important line of enquiry in

14 relation to the key suspects.

15 But just, as it were, taking a snapshot at this

16 point, you don't, as I understand it, take any issue, do

17 you, with the decision made at that point to launch the

18 proactive operations against the two key suspects?

19 A. No, it was a perfectly legitimate line of enquiry.

20 Q. And in terms of the strategy as explained, I think,

21 during his evidence by Mr Provoost, which was to bring

22 the two targets together and to capture from them

23 a spontaneous conversation in controlled surroundings

24 about the murder, presumably, as a strategy, you have no

25 quarrel with that?

 

 

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1 A. I do not.

2 Q. No. Now, so far as the course of the operation is

3 concerned, can I just trace that with you by looking at

4 a paragraph of your report, 10.5.12. That's RNI-610-010

5 (displayed). There you say, using this collective term,

6 "Operation George", that:

7 "It developed slowly during the early stages until

8 two significant and almost simultaneous events

9 accelerated its progress."

10 Unfortunately, because of the redactions it is quite

11 difficult to work out what the significant events were,

12 but in short, intelligence was received about travel and

13 there was also intelligence, wasn't there, that one of

14 the key individuals was planning to leave

15 Northern Ireland? Is that right?

16 A. Well, yes. Two, in fact, individuals.

17 Q. Yes, sorry. Thank you. Sorry, that's my fault.

18 And that, as you see it, looking obviously after the

19 event at the material you have seen, led to an increase

20 in pace in the investigation. Is that right?

21 A. Yes, indeed.

22 Q. And an increase also in resourcing in the sheer scale of

23 what was being undertaken?

24 A. Quite.

25 Q. Yes. Now, can I next turn to one of the criticisms you

 

 

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1 make, which is in relation to strategy, overall strategy

2 and policy on Operation George and recording that? At

3 paragraph 10.71.1, you address the question of

4 strategy -- RNI-610-013 (displayed) -- and you develop

5 that issue in this part of chapter 10. And as I

6 understand it, what you say is that there are no

7 distinct policy records in relation to Operation George.

8 Is that correct?

9 A. Yes.

10 Q. And in relation to strategy, 10.7.2, you say that

11 despite Mr Port's -- this is the next page, RNI-610-014

12 (displayed) -- regular attendance at the relevant

13 intelligence coordination group meetings, again you

14 haven't found a clear and documented strategy emerging

15 from those meetings?

16 A. That's right, we have not seen a documented strategy.

17 Q. Can I just ask, please: again, you have now heard

18 evidence about this from various of the witnesses, has

19 anything in their evidence led you to reconsider that

20 part of your opinion?

21 A. No.

22 Q. Now, what of the point that might be made in this

23 regard, that yet again you are focusing on

24 documentation, creating an audit trail, rather than

25 addressing the substance, which is that the operation

 

 

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1 was continuing, it was being in some ways very

2 successful and that of itself suggested that the senior

3 officers were in control of it and running it with

4 a sure hand on the tiller?

5 A. There are many indications that they were in control in

6 the tactical sense. I think my concern that I was

7 trying to express was that the product that was coming

8 from this operation emerging over time, on one

9 consideration -- that is the particular targets that

10 were subjected to intrusive surveillance -- were

11 consistently denying involvement in Rosemary Nelson's

12 murder, and the indicators certainly needed to be taken

13 account of in terms of assessing how this product was

14 supporting the hypothesis on which it was based.

15 Q. So, again, in this area, as I understand it, you see

16 a link between the absence of formal structure,

17 certainly formally recorded structure, and policy and

18 strategy thinking and the failure in your view to

19 reassess policy and strategy in the light of what was

20 actually happening so far as Rosemary Nelson and her

21 murder was concerned?

22 A. Yes, I think I would like to put it a little

23 differently. This clearly was a perfectly legitimate

24 line of enquiry. It is one of what we came to believe

25 were the three pillars upon which Operation George was

 

 

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1 based: the intelligence that suggested these particular

2 targets were responsible for Rosemary Nelson's murder.

3 And as that line of enquiry progressed, I think it is

4 incumbent upon the senior management team to continually

5 evaluate where they are at any particular time, and at

6 some point -- again, we are back to -- as in the other

7 two matters that we have already discussed under the

8 claim of responsibility and under the linking of the

9 device -- just the same in this line of enquiry -- there

10 is an obligation to say, well, we need to take stock, we

11 need to reassess where we are. We need to ask ourselves

12 the question: based upon the product that we are getting

13 from our endeavours, what is this telling us about the

14 likelihood of our particular targets being involved as

15 we have hypothesised their involvement.

16 Q. So just so I'm clear on this, what you are saying in

17 relation to the product, the results of Operation

18 George, is not just that it needed to be handled in

19 a different way, as you have been explaining, as it

20 were, internationally, i.e. how the resources were

21 managed, how policy was set, how strategy was

22 determined, et cetera, but also that there needed to be

23 a realisation that what was coming back in Operation

24 George undermined one of key pillars of the

25 investigation as a whole, namely the early intelligence?

 

 

112

 

1 A. To a significant degree, yes.

2 Q. Yes. Now, can we just look, please, at the question of

3 the change in priorities as you see it, because that

4 part of your chapter 10 begins at 10.12, at RNI-610-443

5 (displayed). There you acknowledge, I think, in the

6 second paragraph, 10.12.2, that in a sense the team was

7 a victim of its own success because as Operation George

8 really began to take off, the investigation team was

9 presented with a difficulty?

10 A. Yes, it was receiving a product which indicated

11 significant admissions to very serious crimes, but not

12 in relation to Rosemary Nelson's murder.

13 Q. Now, how in your view should the investigation team have

14 addressed this matter, this problem of the success of

15 the operation?

16 A. Well, I think, there were a number of options available,

17 and I take account of the terms of reference given to

18 Mr Port. Those terms of reference, of course, allowed

19 him to take under his control any matter that he thought

20 would advance his investigation into Rosemary Nelson's

21 murder. So I acknowledge it was perfectly legitimate

22 for him and the Murder Investigation Team to pursue

23 these individuals for crimes that were not connected to

24 Rosemary Nelson's death.

25 However, there was an issue in terms of the

 

 

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1 tremendous resource requirement that was going to turn

2 that product from Operation George into admissible

3 evidence to be eventually present before a court of law.

4 Therefore, also, I believe, within Mr Port's terms of

5 reference was the ability to make a request to the

6 Chief Constable of the RUC in keeping with his terms of

7 reference and, indeed, ask for an investigation team to

8 take over at that point, if you like.

9 Now, I would like to be very clear on this because

10 I'm not suggesting that Mr Port and the SMT invite in

11 an RUC investigation team and say, "It is over to you,

12 it is all yours. We have got other things to do. We

13 are off." Clearly such a course of action would have

14 not been beneficial. But, as in fact they later did

15 form what they regarded -- I think they called it by the

16 term a SCAT Team, a team that was putting together in

17 effect the prosecution case -- I think it would have

18 been possible to pull in extra resources and say,

19 "Right, these extra resources from the RUC are here to

20 take forward these offences under the broad umbrella of

21 directing acts of terrorism and investigating or turning

22 into evidence, admissible evidence, the considerable

23 admissions in relation to other offences."

24 And I believe that actually would have been

25 justifiable under how Mr Port had positioned himself as

 

 

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1 the OIOC, the officer in overall command, because he

2 still would have had the opportunity to be the officer

3 in overall command, but that particular facet of the

4 investigation, the investigation into matters other than

5 Rosemary Nelson's murder, perhaps could have been hived

6 off to a team that still worked to him, that he still

7 took a supervisory overview in regard and ensured, of

8 course, through his position of OIOC that the

9 opportunities were maximised in terms of eventually the

10 arrest phase and the interview of these persons about

11 Rosemary Nelson's murder.

12 But it would have enabled the actual Murder

13 Investigation Team to reconsider their approach, their

14 hypotheses in relation to Rosemary Nelson's murder,

15 consider all alternative ones and turn their

16 considerable skill and probity of attention in relation

17 to other people that they had intelligence on to suggest

18 their involvement in the murder.

19 Q. Now, just so I'm clear about this, this suggestion you

20 have made, that Mr Port could have proceeded in this

21 way -- by going to the Chief Constable -- are you saying

22 that his failure to do so amounts to a failure of due

23 diligence in this aspect of the investigation?

24 A. No, certainly not.

25 Q. Because I may be wrong, but I'm not sure you mention

 

 

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1 this suggestion specifically in your report, do you?

2 A. I certainly think I have.

3 Q. Right. It is probably my ignorance.

4 A. I certainly think I have. No, I'm not suggesting that's

5 the issue at all. I think I mention this in relation to

6 the inevitability that the very subject that we were

7 talking about, the focus of the investigation being

8 turned away from Rosemary Nelson's murder to looking to

9 turn the product into intelligence for other matters.

10 I have accepted that it is a reasonable course of

11 action to say, well, if you pursue these people and you

12 are able to take action against them and arrest them and

13 eventually charge them with other offences, you will

14 then have an opportunity to look at their involvement in

15 Rosemary Nelson's murder, both forensically and by

16 questioning. But I think there was a foreseeability

17 about how those resources were going to be absorbed, how

18 the Intelligence Cell was going to really take over the

19 direction of this enquiry in that way, and it was an

20 option to prevent that happening by asking for an

21 additional resource.

22 Q. Yes. I have made a quite unfair comment to you, which

23 I'm going to withdraw now by asking to you look at

24 10.12.10 at RNI-610-046 (displayed) because I think what

25 you are saying there as an option, at the bottom of the

 

 

116

 

1 page is -- do you see:

2 "an option would have been ..."

3 Do you see that?

4 A. Yes.

5 Q. And then reading over inevitably to RNI-610-047

6 (displayed). I mean, you haven't expressed it perhaps

7 in exactly the same way, but that's the option that you

8 have just been talking about, isn't it?

9 A. Yes, it is, and I reiterate so there is no doubt about

10 it that I do not regard this as a due diligence issue.

11 Certainly I have tried to be guarded about the benefit

12 of hindsight here. Hence my comment about the

13 foreseeability that this situation was going to arise.

14 And I mention later in that paragraph, as I said

15 earlier, that they did eventually, of course, go down

16 this path with a small dedicated team within the MIR,

17 which they called the serious crime administration team,

18 SCAT.

19 Q. Yes.

20 A. Perhaps the issue is that team could have been engaged

21 at a rather earlier stage. But it is a question of

22 judgment and I respect, of course, the judgment that is

23 taken on the day because one shouldn't second guess

24 that. It is merely an option that I put forward that

25 would perhaps have dealt with foreseeable issues.

 

 

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1 Q. Now, looking at the issues and resourcing in particular,

2 can we turn to 10.12.7 -- that's at RNI-610-045

3 (displayed) -- because here you talk about the

4 resourcing problem and make the point at the end there

5 that the Intelligence Cell became increasingly dominant.

6 Now, you will have heard since producing this report

7 in the evidence of the various SMT officers the

8 suggestion that in fact there was no implication in

9 terms of resourcing here because, if I can put it this

10 way, the traditional lines of enquiry continued and work

11 proceeded on them in the MIR back here in

12 Northern Ireland. Is that in accordance with the way

13 you see matters based on the material you have

14 considered?

15 A. Based upon the documentary evidence, that isn't the

16 picture that is painted to me. I do acknowledge that

17 the MIR was involved in other lines of enquiry, but

18 I think the documentary evidence is that they were, if

19 you like, running out of steam and no new lines of

20 enquiry were being instigated.

21 Q. Now, in that connection, can I ask you to look, please,

22 at an intelligence review meeting which took place on

23 5 October 1999 and which we find at RNI-910-200

24 (displayed)? It gets off to a poor start by the heading

25 of the meeting and the date of the meeting both being

 

 

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1 redacted, but I'm hoping that we will find at

2 RNI-910-202 (displayed) just a brief -- yes, well, they

3 have allowed two lines to emerge in the page, but they

4 may be enough for our purposes for the moment:

5 "MIR update ... there are no new hard lines of

6 enquiry being pursued by the MIR."

7 A. Yes.

8 Q. Now, is that the sort of material that you base your

9 suggestion on: that really the energy by this stage was

10 with Operation George and the Intelligence Cell rather

11 than the MIR?

12 A. I think I use these as further examples. I base my

13 comment on a number of actions being produced that

14 nothing is done in a major enquiry without it being

15 sourced to an action. So, therefore, it is very useful

16 to look at the number of actions raised in enquiries

17 that support matters other than Rosemary Nelson's murder

18 and compare it to the number of actions that are raised

19 directly relevant to the traditional lines of enquiry,

20 and they paint a picture and this material helps to

21 support that picture. I wonder if I might be reminded

22 of the date of that, Mr Phillips?

23 Q. It is 5 October 1999.

24 A. Yes, and this is one of the indicators that that trend

25 that I describe is taking effect.

 

 

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1 Q. Now, I just want to do two things in this connection,

2 please: the first to take you to the summary of actions

3 that you have been mentioning, and that we find in your

4 report at RNI-602-031 (displayed). It is actually in

5 chapter 2; that's the summary, isn't it, that you have

6 just mentioned?

7 A. Yes, it is and those raw figures there describe the

8 trend.

9 On hearing the evidence of the SMT members in

10 speaking of this, I wondered whether there was

11 a different way of portraying the same thing, and I, in

12 fact, had a -- had this done in a graphical form which

13 I think more easily describes what happened, and I asked

14 whether that graph was accepted.

15 Q. I don't think we have got any such graph with us here.

16 Perhaps that's something we can look for, but you think

17 that shows the position more clearly, do you?

18 A. I think it does because it shows the trend lines clearly

19 passing each other in a way that is more effective than

20 those bare figures.

21 Q. Yes. Now, can I just ask you about some of the evidence

22 that was given on this question of the change in the

23 number of actions and, therefore, the change in

24 emphasis.

25 Mr Provoost said that really this, given the dates

 

 

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1 here -- and the date of the murder, we mustn't forget,

2 is of course March 1999 -- did no more than reflect the

3 natural course of a murder investigation. And Mr Port,

4 who described this contention of yours as nonsense,

5 I think, said that you paid no attention to academic

6 research that there is always, as he put it, a drawing

7 away from victim-focused work, to suspect-focused

8 investigations.

9 And I think what he is really saying is that you

10 don't just do the arithmetic; you have to take into

11 account these other factors as well. What's your answer

12 to that?

13 A. Well, I think the point that I'm trying to make is that,

14 yes, there is evidence that the lines of enquiry that

15 were embarked upon, if what we continued to call the

16 traditional line of enquiry -- and leave for one moment

17 the line of enquiry called Operation George to one

18 side -- there was that inevitable trend that these lines

19 of enquiry are gradually being exhausted. And the trend

20 line you would expect to come down anyway.

21 But I think the point is this: my contention through

22 the assessment is that this single hypothesis that the

23 investigation team were relying on was now urgently due

24 for reassessment. If it had been reassessed in the way

25 that I feel it should be, that possibly would have led

 

 

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1 to the generation of new hypotheses and the exploration

2 of other suspects, which the Murder Investigation Team

3 held intelligence on. And I think in these

4 circumstances, my expectation would have been to have

5 seen new lines of enquiry being set up, and instead of

6 that trend continuing to fall to a low level, it would

7 have been reinvigorated to suggest that there were

8 actions being taken to progress new lines of enquiry,

9 and looking at new suspects that there was intelligence

10 on that needed to be validated and then pursued.

11 Q. Can I just ask you to help us again with chronology on

12 this -- obviously not a precise chronology. In terms of

13 what you have been talking about, the need to recognise

14 the change in priorities, the effects on resourcing,

15 which was taking place, when -- as I say, roughly -- do

16 you say that the senior management team and Mr Port in

17 particular should have, as it were, taken stock and

18 considered these matters?

19 A. Well, I refer back to my earlier evidence, when

20 I described the approach that the assessment team had

21 taken with drawing up a traffic light chronology. You

22 know, the amber lights were in September/October. By

23 the middle of the following year, I think at least by

24 then there should have been a fundamental reassessment

25 of whether this line of enquiry was supporting the

 

 

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1 original hypothesis in terms of what it was telling

2 them.

3 Q. And to be clear then, you mean the middle of 2000?

4 A. Yes.

5 Q. Yes. Now, can I ask you to look next at another section

6 of this chapter of your report and this is the one that

7 begins at 10.13, RNI-610-048 (displayed)? Because here,

8 getting into slightly more detail on the absence of

9 evidence of reviews or discussions, you tell us in

10 paragraph 10.13 first of all about the relevant

11 hypothesis. Then in 10.13.2, you say that:

12 "Between September 1999 and June 2001, there is no

13 evidence or documentation of questioning ..."

14 And unfortunately, there are redactions here, but

15 they are the redactions of names. So I hope it is still

16 clear:

17 "The possibility of [names] ..."

18 And then another name:

19 "... not being responsible for the murder or the

20 continuing strategy of trying to put two of these key

21 suspects together in order that they may spontaneously

22 talk about the murder."

23 A. Yes, there is no documentary support.

24 Q. Now, what we have heard in the evidence, as I'm sure you

25 are aware, is that whatever the position on the

 

 

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1 documents, this was in fact regularly discussed and

2 considered during the currency of Operation George, and

3 Mr Port was probably the firmest and clearest on that.

4 Aren't you, in fairness to them, obliged to consider

5 their evidence on this and in the light of it reconsider

6 whether these are valid criticisms to be made of them?

7 A. I'm not sure how to answer that, Mr Phillips. In terms

8 of my observation that there is no documentary evidence

9 to suggest that there was a fundamental review of this

10 line of enquiry, that remains the same. I do not feel

11 that any of the senior management team that have given

12 evidence have led us to documentary evidence to suggest

13 that the case was different.

14 In relation to what Mr Port has said, I would need

15 to accept that he is right when he says it was a subject

16 of continuing review. But I wonder whether that was

17 a fundamental reassessment or whether it was continually

18 going over, well, what have we got, what do we do next,

19 instead of saying, "Let's take stock, let's look at all

20 the material we have got" and carefully weigh it in the

21 balance and say, "What does this tell us? Does this

22 lead to us believe that our key suspects are implicated

23 in Rosemary Nelson's murder or are there -- is there

24 more weight given to the indications that they aren't

25 responsible for the murder?"

 

 

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1 Now, I think that's such an important decision, it

2 is deserving of being documented because clearly this is

3 an enormous use of resources, and even, you know, two

4 years on, still believing that two people coming

5 together are going to have a spontaneous conversation,

6 I think, you know, needs to be justified on why you

7 believe that to be the case. And there is no

8 documentary evidence that demonstrates that such

9 a process happened.

10 So I'm uncertain, in terms of hearing what Mr Port

11 said about it, as to whether it fulfilled the

12 requirement that I was expecting.

13 Q. And is it in this context that the point you make at

14 10.13.3 comes into play? Namely that if there were such

15 conversations, it may be that they were concerned with

16 the question of whether Operation George was supporting

17 the hypothesis, rather than testing and challenging it?

18 A. That's exactly the point, yes.

19 Q. Now, can I just pick up the point you have relied upon

20 in your report and have just alluded to, which is the

21 absence of admissions in relation to this offence, the

22 Rosemary Nelson murder, because here you touch on, in

23 your report, the mantra, as it is put, of ascribing

24 responsibility to the British Government.

25 Now, you will remember in this connection that

 

 

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1 Mr Port -- and I think also Mr Provoost, actually --

2 made the point which they said you had missed: that

3 there had also been a denial of another significant

4 crime, namely the Elizabeth O'Neill murder.

5 Now, to what extent does that undermine your

6 analysis in this part of your report?

7 A. I did hear Mr Port say that and I was surprised and

8 caused research to be done on that matter, and I would

9 have to disagree with the point. I'm trying not to

10 descend into great detail, but I think it is very useful

11 to actually look at the trial judge's comments, which

12 I have done, in relation to the Elizabeth O'Neill

13 murder. And the trial judge, Mr Justice Hart, deals

14 with the ten occasions that the defendant referred to

15 Rosemary Nelson's -- to Elizabeth O'Neill's murder.

16 It is very clear from his judgment that when talking

17 with undercover officers, there was never a denial.

18 When talking to the person who turned out to be his

19 co-accused, there was often not an admission, but there

20 was not a denial. On the one occasion there was

21 a denial, that was in the very specialised context where

22 there was never a suggestion by the prosecution that the

23 defendant actually took part in the attack on Elizabeth

24 O'Neill; the suggestion was that he was responsible for

25 counselling and procuring that offence. And it is

 

 

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1 a fairly narrow issue that the judge looked at to say

2 that his denial was in relation to his arrest by the

3 police, saying that they knew he didn't do it. But that

4 was in the context of actually being involved in the

5 offence itself.

6 The judgment goes on to say that what followed

7 clearly demonstrated the context of that denial and that

8 context was that he, of course, had hurried back to his

9 own home address to secure for himself an alibi for the

10 later police enquiry. So I think it is a very complex

11 area, but I don't think there were any denials to

12 Elizabeth O'Neill's murder other than in that narrow

13 context of him describing the account of being

14 interviewed by the police about it.

15 Q. So you don't think that this example is evidence, as

16 Mr Port said, that your report, the way you have

17 approached it, is partial?

18 A. No.

19 Q. Now, can I turn to another aspect of what emerged from

20 Operation George, which is the suggestions made by

21 Mr Port that there were various comments made and

22 recorded in the undercover operation, which indicated at

23 the very least that one of the defendants, the same

24 defendant you have just been talking about, had a strong

25 knowledge, I think it was put, of what had taken place.

 

 

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1 Now, that's dealt with in Mr Port's statement

2 conveniently at paragraph 153, I think, RNI-817-468

3 (displayed). Now, again, without wishing to encourage

4 you to too much detail, what significance do you ascribe

5 to this in the light of your suggestion that they were

6 simply not willing to recognise that in general the

7 Operation George product was pointing against the

8 hypothesis?

9 A. Yes, I mean, I think these are some of the examples, of

10 course, where this is about weighing in the balance and

11 asking, well, what is the more likely explanation.

12 Because, you know, in the other scale to some of these

13 points is the fact in my view that on more than one

14 occasion the person we are talking about got the facts

15 of Rosemary's attack wrong, referring to her as coming

16 home at lunchtime for 40 minutes. I think he speculated

17 at one point that only the security forces could carry

18 out an attack in daylight, you know, under those

19 circumstances, which of course we know is completely

20 wrong.

21 It is not unreasonable that he should have that view

22 because of the time the bomb exploded, but we know, of

23 course, that Mrs Nelson's regular pattern was to leave

24 home late, and on this occasion that's what she did.

25 She was not home at lunchtime.

 

 

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1 Q. Now, in his evidence, Mr Provoost was asked to consider

2 various other matters which had emerged in Operation

3 George which were examples of what might fairly be

4 described as showing that the key suspects were not

5 particularly competent or sophisticated.

6 A. Yes, indeed.

7 Q. You remember those being put to him, I think?

8 A. Yes.

9 Q. Now, the simple point he made in answer to that, as you

10 remember, is, well, as it were, that may be so but in

11 his view these individuals were responsible for some

12 serious and well planned offences, in that these

13 questions were taken into account, considered by the

14 SMT.

15 Now, has that evidence about the approach of the SMT

16 to that indication or contraindication caused you to

17 reconsider your view on this part of the case, in

18 chapter 10?

19 A. I acknowledge that these individuals were very

20 dangerous, very dangerous terrorists and killers, and

21 thanks to the brilliant work done by Mr Port and his

22 team, they are now not threatening the public in the way

23 that they did.

24 But I still maintain the view that on the evidence,

25 their method of attack, whilst brutal and reckless,

 

 

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1 doesn't evidence a sophistication that might be

2 suggested in this under-vehicle attack on

3 Rosemary Nelson. So it is one of the considerations

4 that I think would be bound to go into the equation of

5 what is the big picture telling us.

6 Q. And it would -- as I understand it -- in your view have

7 properly cast some doubt on the big picture, on the

8 hypothesis which they were following?

9 A. Yes.

10 Q. Yes. Can I just, finally in this regard, ask you to

11 look, please, at chapter 14 of your report, RNI-614-064

12 (displayed), 14.6.23, focus of investigation? Because

13 here in the section which takes us up to RNI-614-067,

14 I think I'm right in saying that you consider the issues

15 of priorities, resources and focus from, if I can put it

16 this way, the management point of view. Is that

17 correct?

18 A. Yes.

19 Q. Now, just turn together page to RNI-614-066 (displayed),

20 at the top of the page, 14.16.26, you refer there to the

21 intelligence review meeting minutes that we looked at

22 together. Do you see that?

23 A. Yes.

24 Q. And make your criticisms in the following paragraphs, 27

25 and 28. And in a sense they are encapsulated, I think,

 

 

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1 in 28:

2 "The AT has formed the opinion that the OIOC and the

3 SMT did not fully appreciate from the outset the impact

4 on MIT resources along with the seriously adverse effect

5 upon the operation of the MIR and Intelligence Cell,

6 which the demands from all of the various covert sources

7 within Operation George created."

8 And can I just take you to the last paragraph here,

9 where you, at 29 on the next page, RNI-614-067

10 (displayed), where you return to a topic that we were

11 looking at some time ago now, namely the reconsideration

12 of the early intelligence? And what, as I understand

13 it, you are saying here is that it was only with the

14 review that began in July 2003 that, in your view, the

15 thorough validation of that original intelligence began.

16 Is that right?

17 A. Yes, the validation in respect of the information (redacted)

18 (redacted)

19 (redacted).

20 MR PHILLIPS: Yes. Sir, we have got two relatively brief

21 topics still to cover and they will take, I think, about

22 half an hour.

23 THE CHAIRMAN: Right, we will adjourn and hear that at 10.15

24 in the morning.

25 MR PHILLIPS: Thank you.

 

 

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1 (5.57 pm)

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