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Full Hearings

Hearing: 20th February 2009, day 111

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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 Friday, 20 February 2009
commencing at 9.30 am


Day 111

 

 

 

 

 

 

 


 

1 Friday, 20 February 2009

2 (9.30 am)

3 B542 (continued)

4 Questions by MR PHILLIPS (continued)

5 THE CHAIRMAN: The checklist, Mr Currans. Is the public

6 area screen fully in place, locked and the key secured?

7 MR CURRANS: Yes, sir.

8 THE CHAIRMAN: Are the fire doors on either side of the

9 screen closed?

10 MR CURRANS: Yes, sir.

11 THE CHAIRMAN: Are the technical support screens in place

12 and securely fastened?

13 MR CURRANS: Yes, sir.

14 THE CHAIRMAN: Is anyone other than Inquiry personnel and

15 Participants' legal representatives seated in the body

16 of this chamber?

17 MR CURRANS: No, sir.

18 THE CHAIRMAN: Thank you. Can the video engineer please

19 confirm that the two witness cameras have been switched

20 off and shrouded?

21 THE VIDEO ENGINEER: Yes, sir, they have.

22 THE CHAIRMAN: All the other cameras have been switched off?

23 THE VIDEO ENGINEER: Yes, sir, they have.

24 THE CHAIRMAN: Thank you.

25 Bring the witness in, please.

 

 

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1 The cameras on the Panel, Inquiry personnel and Full

2 Participants' legal representatives may now be switched

3 back on.

4 Yes, Mr Phillips?

5 MR PHILLIPS: Please sit down.

6 A. Thank you. Good morning.

7 Q. Good morning.

8 In the light of the progress we made yesterday, so

9 the everybody is aware, what I'm proposing to do

10 today -- it is now 25 to 10 -- with the agreement of the

11 stenographer, is to proceed as speedily as I can to

12 11 o'clock, at which time I propose we break and then go

13 into what I hope will be a relatively brief closed

14 session.

15 THE CHAIRMAN: Thank you.

16 MR PHILLIPS: So that is the framework for the morning.

17 Now, so far as the first topic is concerned, I would

18 like to look with you, please, at a disclosure issue

19 which arose in relation to some Security Service

20 material, and the first document to look at with you,

21 please, is at RNI-532-143 (displayed). This is a note

22 for file by a Security Service officer, which records

23 a discussion with your deputy, and the officer, S224,

24 who we mentioned earlier, the assistant director in the

25 Security Service who was responsible for agent handling

 

 

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1 in Northern Ireland. And the focus of the discussion,

2 as you see, was intelligence received by the Security

3 Service concerning targeting by the Orange Volunteers.

4 Just to prompt your recollection, I'll show you

5 a report at RNI-532-141 (displayed), which makes it

6 clear what the substance of the reporting was, namely

7 that the Security Forces were assisting the Orange

8 Volunteers to do their targeting. Do you see that?

9 A. Yes, indeed.

10 Q. Thank you very much. What I want to do going back to

11 the note is to look at the fifth paragraph, which is on

12 RNI-532-144 (displayed), and it records the suggestion

13 being made by the Regional Head of Special Branch for

14 the South Region that this intelligence should be

15 disclosed to the Port team, to Colin Port, because:

16 "It contained some colour of suspicion of collusion

17 between the security forces and Loyalists."

18 Do you see that?

19 A. Yes, indeed.

20 Q. Now, if we see how this issue developed on the next,

21 page, RNI-532-145 (displayed), in another note by the

22 same officer of 5 April, the next day. We see there is

23 reference to a discussion between your deputy and you --

24 his name -- your deputy's name is blanked out in the

25 third line -- and your view is recorded there as being

 

 

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1 that you:

2 "... took a firm view, whatever B629 and [the name

3 of the deputy] might think that the reporting was of no

4 relevance to the Port Inquiry and Port should not be

5 briefed on it."

6 As I understand it, the point was raised with you by

7 your number 2 and you took the view that this should not

8 be passed on. Is that correct?

9 A. Well, on the face of it, this is a note of a

10 conversation that my deputy had with me. I don't know

11 if I saw the documents and I don't certainly recall the

12 detail of any of that or of any such conversation, but

13 my deputy was a very experienced career CID officer and

14 clearly the Security Service, who had their own well

15 tried and tested disclosure procedures and rules, were

16 seeking some second opinion from my deputy. If he says

17 he had a word with me about it, that's fine, I have no

18 doubt he had.

19 It is very important to understand the context

20 again. Any suggestion of anything coming from security

21 force sources to any paramilitary organisation was the

22 subject obviously of concern and, more specifically, was

23 the subject of rigorous examination and investigation.

24 Mr Port was very clear -- and he will confirm

25 that -- that he was only interested in anything to do

 

 

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1 with his enquiry, nothing -- in other words, the Nelson

2 murder. The Orange Volunteers as an organisation didn't

3 have their power base there; they had it in another part

4 of the Province. We had clear arrangements with Mr Port

5 that if anything of that nature emerged in relation to

6 to security forces allegedly outside of the Nelson case,

7 that that would be investigated separately. I'm aware

8 of that having been done and that's a matter of record.

9 Q. Right. Well, in the light that of answer, you had

10 better have a look at paragraph 219 of your own

11 statement, and that's at RNI-846-758 (displayed),

12 because there you record the specific request by

13 Colin Port for information from you:

14 "... as to possible collusion, i.e. between security

15 force personnel and Loyalist paramilitaries."

16 And that occurred in December 1999.

17 Now, this intelligence, in April 2000, just four

18 months later, went to precisely that issue. Why was it

19 not disclosed to the Port Inquiry?

20 A. No, there is no issue with me there. If it was in any

21 way connected or relevant -- and I did not have the

22 detail of it -- to the Port Inquiry, it certainly would

23 have been disclosed. If it related to another

24 organisation in another part of the Province or

25 whatever, then it was investigated separately. Mr Port

 

 

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1 was very clear about that. That is a matter of record

2 elsewhere in my journal. It is a matter of record

3 within the wider police systems that such -- any such

4 material was referred for separate criminal

5 investigation.

6 I cannot drill down or focus in more detail on

7 specific bits of information. I'm quite clear as to

8 what the policy was. I'm also quite clear that it was

9 followed.

10 Q. We have seen already in the Security Service note that

11 B629 didn't share your view and was in favour of

12 disclosing this material. So are you suggesting that

13 he, the Regional Head of Special Branch, was not aware

14 of these limits to what Mr Port was interested in, which

15 you are referring to?

16 A. I'm not necessarily saying that, and that wouldn't

17 necessarily have been something that he might have

18 needed to know or be aware of or be involved in at that

19 point in time. That was a clear policy direction at

20 force level. It was agreed at a strategic level with

21 Mr Port and that's a matter of record and it was pursued

22 accordingly.

23 Q. Can we go back, please, to the note at RNI-532-144

24 (displayed). You will see there that in the

25 conversation, the suggestion is made, I think by your

 

 

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1 deputy, about six lines from the bottom that if the

2 material was disclosed:

3 "It would merely encourage Port to come hammering at

4 the Service's door demanding to see our information,

5 interview the source and to investigate what else we

6 might have to offer!"

7 Was this in fact the reasoning behind the decision

8 not to disclose this material: that you didn't want

9 Mr Port coming hammering at the door?

10 A. You are asking me a question that I cannot hope to

11 answer. That is a Security Service note; that may or

12 may not have been their view. My deputy was dealing

13 very professionally with the matter. If he had a word

14 with me about it and we came to a consensus and an

15 agreed position in line with the agreed policy, that

16 is it.

17 Q. I'm asking you, when he came to you for your decision on

18 the matter, whether you were motivated by the fear that

19 if this was disclosed to Port, he might come hammering

20 at the door for more?

21 A. The reference to the hammering at the door is a Security

22 Service comment. That's a Security Service note and

23 memo which I cannot comment upon.

24 From my perspective, all relevant material would

25 have been made available to Mr Port. There was no issue

 

 

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1 about him coming hammering on the door. We had

2 a collaborative and close working relationship and we

3 had a common goal, and we had professional protocols and

4 understanding. And I don't wish to take up the time of

5 the Inquiry with trying to explain a Security Service

6 memo further. I do not know what was in the minds of

7 the author of that report.

8 Q. Right, let's move on. Yesterday afternoon you and

9 I talked about the issue of disseminating intelligence

10 to CID and, in particular, about the question of whether

11 source protection dictated in individual cases that

12 information should be withheld. And there was

13 a specific question and answer.

14 I asked you whether you were not aware of individual

15 cases where a decision was taken not to disclose

16 intelligence to a CID officer in order to protect your

17 sources. And you replied:

18 "Not in relation to the protection of life or the

19 investigation of murder, in my experience."

20 Now, with that exchange in mind, I would like you to

21 look, please, at paragraph 38 of your statement,

22 RNI-846-703 (displayed). Here you refer to the question

23 of CHIS conduct and criminality.

24 Now, so far as Special Branch was concerned, in

25 order to acquire the tactical intelligence you needed,

 

 

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1 your sources needed to engage with paramilitary groups,

2 didn't they?

3 A. Absolutely.

4 Q. That was the only way you would get the right level, the

5 right flow of intelligence so as to enable you to act in

6 order to prevent operations and to save life?

7 A. Critical to protecting the community and to saving life,

8 and those CHIS were very brave people.

9 Q. Indeed. And your concern as an organisation,

10 Special Branch, E Department, was not with the business

11 of assembling evidence for prosecutions but gathering

12 intelligence in order to pre-empt, to frustrate the work

13 of terrorists. Is that right?

14 A. That's right. I think I mentioned that balance

15 yesterday.

16 Q. Yes. Now, it was inevitable, wasn't it, in those

17 circumstances that effective agents or sources would be

18 at the centre or very close to criminal and paramilitary

19 activity. Is that fair?

20 A. That's fair, and I'm aware that we are perhaps going to

21 talk more about CHIS in the closed session.

22 Q. I don't think we need to --

23 A. That's fine, thank you.

24 Q. It is obvious from what we have just been talking about

25 that there was a constant danger of the line being

 

 

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1 crossed in relation to such sources, wasn't there?

2 A. Of course.

3 Q. Yes. So when you say in paragraph 38 that there was

4 a certain level of acceptability of conduct, what I want

5 to now discuss with you is what that actually means.

6 The raison d'tre of these terrorist organisations

7 was serious crime, was it not? They were in the

8 business of murder, for example. Is that right?

9 A. Terrorism.

10 Q. Yes, exactly.

11 A. There is a distinction, as you well know, in legislation

12 between terrorism and serious crime.

13 Q. Yes.

14 A. And national security. They are all separately defined.

15 Q. Indeed. But forgetting about the legislation and

16 thinking about the realities for a moment, these were

17 organisations who were responsible for violence and

18 murder and who sustained their operations by other

19 serious crime, including drugs, extortion, racketeering

20 and matters that of kind, weren't they?

21 A. Sometimes there was an overlap, yes.

22 Q. Whatever they were doing in the crime field, it wasn't

23 minor, was it?

24 A. Well, it varied, it varied.

25 Q. But you want the best intelligence you could get by

 

 

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1 getting your sources or agents as close as you could to

2 activities of that kind in order for them to give you

3 informative, useful, high grade intelligence. Is that

4 right?

5 A. Yes, indeed, with a very high degree of success in terms

6 of protecting the community.

7 Q. Absolutely.

8 A. Yes.

9 Q. The point you make here is that until the introduction

10 of RIPA, there was no applicable legislation to guide

11 you in the rather grey area of what constituted

12 acceptable conduct from your sources or agents. That's

13 what you are saying to us in your paragraph?

14 A. I'm saying they were the basic Home Office rules, yes.

15 Q. Yes. And as you say, they didn't apply, or didn't apply

16 in any obvious way, to the situation you were dealing

17 with because they, as you put it, were largely written

18 for ordinary crime situations. Is that right?

19 A. Oh, yes, that was the -- as you will have heard -- the

20 subject of correspondence to HMG in earlier years.

21 Q. Yes. But that takes us back to our original exchange,

22 doesn't it? Because as you well know, there have been

23 a number of reports over the years, most recently and

24 obviously the Operation Ballast Report mentioned by

25 Mr Kinkaid last week, in which the question of source

 

 

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1 protection and withholding intelligence in those

2 circumstances has come up precisely in the conduct of

3 serious crime, including murder and you must be aware of

4 all of that reporting?

5 A. Well, with respect, I don't think we are dealing with

6 the Ballast Report in this Inquiry. That has been the

7 subject of separate inquiries and investigations.

8 Q. But you remember you gave a very specific answer to

9 a specific question I posed, in which you suggested that

10 in your experience intelligence of this kind was not

11 withheld in relation to serious crime and murder.

12 What I'm putting to you is that at the very time

13 which we are talking about, allegations are certainly

14 being made and were given public prominence in that

15 report, that intelligence was withheld for source

16 protection reasons where murder was going on and where

17 suspects, it was suggested, were being protected from

18 the consequences of serious crime. So are you saying to

19 the Inquiry that, in your experience, there was no such

20 occasion?

21 A. I'm being asked what I consider to be a somewhat,

22 perhaps, unfair question. I have said in my

23 experience -- and I'm giving you my experience honestly,

24 as a person -- I am aware in my experience of situations

25 where CHIS, who acted outside their authorisations, were

 

 

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1 investigated and were prosecuted. We will talk more, if

2 we want to, even about a particular CHIS in relation to

3 Mr Port in the closed session.

4 It is unfair, I believe, to talk to me about

5 Operation Ballast. I was not part of that enquiry.

6 Operation Ballast was rebutted. There was a detailed

7 rebuttal report prepared and, more particularly, the

8 Public Prosecution Service directed no prosecutions

9 against any person and certainly against any police

10 officer. So I think we need to set that in context and

11 perhaps, in the interests of brevity, as we were ordered

12 yesterday, leave it.

13 Q. The reason I raised it is precisely because of what you

14 have said in your statement at paragraph 38:

15 "If we had evidence that a CHIS had become involved

16 in serious crime, then we would pass their details to

17 CID for investigation."

18 And then in the light of the answer you gave me

19 yesterday afternoon, just to be very clear about this,

20 are you telling the Inquiry that that was your

21 experience as the Head of Special Branch, the Head of

22 E Department, that if a CHIS became involved in serious

23 crime, you would pass their details to CID for

24 investigation?

25 A. Absolutely.

 

 

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1 Q. Thank you very much. Now, I would like to move to

2 a final topic with you, which is the question of the

3 relationship between the Port team and Special Branch,

4 and then specifically the issue of the request that was

5 made by Mr Port for CHIS identities, both of which are

6 topics you deal with in your statement.

7 Now, yesterday afternoon you yourself mentioned the

8 visit by a man you describe as a relatively junior

9 officer from the Security Service in or about May 1999.

10 What I would like to do now with you is just look

11 quickly a couple of passages in the report that he

12 prepared for the Security Service, which we see at

13 RNI-532-061 (displayed).

14 From that, we can see that you -- paragraph 2 --

15 were one of the RUC officers that he met during the

16 course of his brief visit. And you will see at 3(a), he

17 refers to:

18 "... a high degree of personal antagonism and

19 mistrust between the RUC SB, particularly Southern

20 Region, and the investigation team (Intelligence Cell

21 and the SIO)."

22 And then, so far as the substance of the report is

23 concerned, I just want to remind you of two passages:

24 the first paragraph 7 at RNI-532-063 (displayed):

25 "The key issue which quickly emerged during my visit

 

 

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1 as the acrimonious state of relations between SB and the

2 remainder of the enquiry team."

3 Then at paragraph 8, the summary of the RUC South

4 Region -- that's Special Branch -- perception of the

5 situation. Now, could we go back to RNI-532-063 and

6 have the whole page on the screen, please (displayed).

7 Can I ask you first of all, did you believe from your

8 own perception that there was, between the SIO and

9 Special Branch in the South Region, this acrimonious

10 state of relations two months into the investigation,

11 the middle of May 1999?

12 A. Not in the way that it is described there in any shape

13 or form, nor did Mr Port have reason to discuss it in

14 the perhaps exaggerated way that it is described there.

15 I think I mentioned yesterday that this relatively

16 junior officer was brought across at our combined

17 request to help scope and formalise and quality assure

18 some protocols that we had put in place already for the

19 handling of certain raw intelligence, bearing in mind

20 the terms of reference about access to intelligence,

21 et cetera, et cetera.

22 This junior officer who somewhere in his note

23 acknowledges that he had no experience in

24 investigations, but had his own experience in his own

25 service in intelligence, saw fit to record some of what

 

 

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1 he heard from two individuals. I would not for a moment

2 think that that's reflective -- to use your words -- of

3 the Special Branch or the Special Branch in South

4 Region.

5 I was aware -- and this is a matter of record -- and

6 others have been asked about it, including Mr Kinkaid

7 and perhaps B629 will be -- about one encounter early

8 on. No organisation with systems and processes the size

9 of ours would allow itself or an investigation to be

10 impacted upon or adversely interrupted by anything to do

11 with one or two people. So in no way did it have any

12 adverse or significant impact on the conduct of the

13 investigations.

14 Q. Right. Can I ask you then about paragraph 8, which

15 purports to set out the South Region's perspective on

16 the matter.

17 You had, no doubt, a number of conversations at this

18 stage with B629, who was the Head of the South Region

19 Special Branch. Does that fairly reflect what he was

20 telling you about the way he regarded the investigation

21 at that stage?

22 A. No, it doesn't. There was no -- I mean, these are

23 exaggerated things on what others have referred to as

24 rubbing points. B629 wasn't coming -- to use an earlier

25 phrase -- knocking at my door or crying on my shoulder

 

 

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1 about little personality issues. He was an officer of

2 very considerable experience and service, and was very

3 capable of, if I may use the phrase, speaking for

4 himself, which he did do with Mr Kinkaid in relation to

5 the initial alleged observation, which -- whether it was

6 in context or out of context, and so far as he was

7 concerned that was the end of the matter, it was put to

8 bed.

9 What we were wanting to do was to enable Mr Port and

10 his team in every possible way, and my journal entries

11 show that I went to the extremes to ensure and to enable

12 him in relation to the resourcing and provision of

13 special protocols.

14 You used the word yesterday about term 7 -- item 7

15 of his terms of reference being unprecedented. I said

16 to you it was unprecedented at the time the terms of

17 reference were drafted to have access to intelligence.

18 That would have been common business that we would have

19 been providing all significant intelligence to any

20 murder enquiry.

21 As we progressed many, many other things became

22 unprecedented, not least in terms of how we were doing

23 business and the resourcing and the time and the

24 commitment, and that was enabled and delivered, as far

25 as I was concerned.

 

 

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1 Q. Just picking up the point you have just made, are you

2 saying that in previous murder investigations,

3 unsanitised intelligence was provided by Special Branch

4 to the investigating detectives?

5 A. No, I'm not saying that. No, I'm not saying that.

6 Q. Right. So the request for and the provision of

7 unsanitised intelligence material did indeed take you

8 into new territory?

9 A. There were -- we were moving -- we were in an area of

10 national security protocols and arrangements. We go

11 back to the point: intelligence was being gathered -- we

12 must understand the context. We were subject to

13 a national security warrantry and protocols and

14 principles. There were considerable adjustments made --

15 this is where it was unprecedented -- to facilitate this

16 particular enquiry. Those had to be done in accordance

17 with the rules and in accordance with legislation and in

18 accordance what the Security Service was charged with,

19 because quite a bit of that came under the aegis of the

20 Intelligence Services Act, not only the Police Act. So,

21 again, a collaborative partnership resolved all those

22 matters very early on, and it is a matter of record in

23 my journal in relation to the directions I gave and the

24 meetings I had with Mr Port.

25 And now that you are on that subject, I would wish

 

 

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1 to draw to the attention of the Inquiry in particular my

2 official journal entries just by way of reminder of the

3 2, and particularly of the 12, 13, 14 and, most of all,

4 22 April 1999 because I was asked yesterday if there was

5 some -- if some certain matters were in writing or for

6 a matter of record. I have had a chance to re-read that

7 very quickly, albeit with limited time, and I think it

8 is important just to highlight those.

9 Q. Thank you. Can I just move on in this note and pick up

10 a particular point which appears to have been a source

11 of tension -- RNI-532-064, please, and RNI-532-065 at

12 the same time (displayed) -- because here the issue is

13 touched on of the dichotomy, as it were, between

14 intelligence on the one hand and evidence on the other,

15 and the Port team's wish to use intelligence gathering

16 to produce evidence for prosecution. And, again, that

17 appears to have taken people into new territory.

18 Do you see at the top of the page on the right-hand

19 side, the service officer is saying:

20 "This proposed proactive use of intelligence is

21 causing some consternation within the SB, which is

22 anxious to protect technical assets in place and the

23 methodology employed."

24 Would it be fair to say, so far as you could see the

25 matter from Special Branch's perspective, that this was

 

 

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1 indeed a source of concern and tension between

2 Special Branch and the MIT?

3 A. Concern and tension? An issue to be mutually discussed,

4 converting intelligence into evidence was not new. It

5 is not new in UK policing, it is not new in

6 international policing. It is an age old problem to

7 which the judiciary and lawyers are equally very well

8 aware.

9 Every effort was being made and -- this was not new

10 on this murder, vis--vis any other murder. There was

11 a common goal to convert intelligence into evidence.

12 Q. But --

13 A. -- where legally and procedurally possible.

14 Q. What experience of turning intelligence into evidence

15 did Special Branch officers have?

16 A. Well, I think if we look at the record, the statistics

17 and the experience of the number of serious terrorist

18 criminal investigations in Northern Ireland and the

19 convictions, and the use of intelligence, the cross

20 fertilisation between Special Branch and CID officers

21 right up to my own deputy level -- I mean, we could go

22 on about this, but they were well defined. There were

23 umpteen reviews on this subject through the years, both

24 locally and nationally, and I don't wish to -- the

25 Chairman has asked me to be succinct. We could go on

 

 

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1 about this, but that's it as it was.

2 Q. Okay. Let's turn to the question of CHIS identities,

3 which became a real issue between the Murder

4 Investigation Team and Special Branch in August 2000.

5 We see the request from Mr Provoost of the Murder

6 Investigation Team at RNI-622 --

7 A. I'm sorry, but I understood this is what we were going

8 to do in the closed session by agreement yesterday.

9 Q. No, what I'm doing with you is to take you through those

10 passages of your statement in which you address this

11 precise topic in an unredacted form, and that's what we

12 are going to do now. If there is any matter which you

13 think we are getting to the borderline of what can be

14 talked about in an open session, then no doubt you will

15 say so. But for the moment, what I would be grateful if

16 you could do would be to continue to answer my

17 questions.

18 A. I gave my reasoning yesterday why I thought the overall

19 subject of CHIS needed special consideration in the

20 current context and environment, and I received a ruling

21 from the Chairman which I was very comfortable with.

22 THE CHAIRMAN: What has not been redacted can be asked and

23 questioned about in this session and will be asked and

24 answered in this session.

25 Yes?

 

 

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1 MR PHILLIPS: Right. The relevant request is at RNI-622-001

2 (displayed) and here we see it comes from Mr Provoost,

3 as I say, and it goes to the Head of South Region. And

4 we can see from RNI-548-569 (displayed), at least I hope

5 we can, that it reaches you on the same day. It is sent

6 up to you by the Head of the South Region. What was

7 your reaction to this request for details of CHIS

8 identities and dissident Loyalist organisations?

9 A. One word used earlier: unprecedented.

10 Q. Yes. So how did you propose to deal with it?

11 A. I proposed -- well, sorry, I mean, this is where we are

12 now in the borderline territory, but --

13 Q. No, we are in the territory that you deal with in your

14 statement and I'll show you the passage. It begins at

15 paragraph 224 at RNI-846-760 (displayed), and all I wish

16 you to do is to answer the questions about the

17 unredacted passages of your statement. Do you see?

18 A. Yes, yes.

19 Q. Where you make the reference to your journal, which

20 records a discussion with Colin Port on exactly this

21 issue.

22 A. That's right, yes, no problem.

23 Q. Now, if we look at Mr Port's note of the same meeting at

24 RNI-622-003 and RNI-622-004 -- if we could have both on

25 the screen, please (displayed) -- what it appears, at

 

 

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1 the second paragraph on the left-hand side, is that

2 Mr Port expressed himself to be:

3 "... extremely annoyed by the lack of courtesy in

4 failing to respond to his request by the deadline he

5 had set."

6 Now, as I understand it from your evidence, you

7 regarded his request for these identities as being

8 incapable of being met with a yes or no answer. Is that

9 right?

10 A. You are quoting from a report which I sent to the

11 Chief Constable subsequently on the matter.

12 Q. I'm quoting, in fact, from your own statement at

13 RNI-846-227.

14 A. Yes, this matter is of critical importance to me. It

15 requires some considerable time to properly explain,

16 some of which I believe, as the Chairman has directed,

17 will have to be done in open session, some of which

18 I equally believe needs to be done in closed session.

19 But the issue of CHIS identities didn't begin with

20 the submission of that note. The business of dealing

21 with CHIS identities was dealt with very purposefully

22 and constructively by Mr Port and myself from very early

23 on in the investigation, which was a year and a half

24 earlier.

25 Q. I appreciate that and you have told us so in your

 

 

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1 statement.

2 A. And a number of things happened along the way very

3 purposefully and constructively and in close

4 collaboration, and the common understanding was clear

5 and without difficulty. This note, which first of all

6 wasn't signed by Mr Port, but on his behalf -- there had

7 been no verbal discussion about this.

8 Q. So it came out of the blue?

9 A. Of course, given that we had a well tested understanding

10 about CHIS matters for the previous 12 or 15 months or

11 whatever it was. Those are the kind of responses I'm

12 going to be obliged to give in open session. I really

13 feel that I can qualify it in closed session, but

14 please, I want to help the Inquiry in every way possible

15 because this is a very important matter.

16 THE CHAIRMAN: Just do your best, would you?

17 A. Thank you, yes. Yes, sir.

18 MR PHILLIPS: Let's see if we can move this on. As I

19 understand it, one of your issues with Mr Port was that

20 he was telling you what he wanted to know and you

21 thought he needed to explain what he needed to know. Is

22 that a fair way of putting it?

23 A. One of the cardinal principles in and around this is the

24 rationale or the reasoning, the necessity, that is not

25 in that note. And it wasn't -- again, we are into

 

 

25

 

1 sensitive territory here. It wasn't in subsequent

2 correspondence or meetings.

3 Q. No. As far as you were concerned, as you explain in

4 your statement, it continued to be a concern of yours

5 that a sufficient case, on a case-by-case basis, had not

6 been made out for the investigation's need to know this

7 information?

8 A. Absolutely.

9 Q. Thank you.

10 A. Those are the well tried and tested rules which I wanted

11 to adhere to and which I was being asked to depart from.

12 Q. Indeed.

13 A. I did not have that authority.

14 Q. Whose authority was it?

15 A. Sorry, I would wish to draw the Panel's attention to my

16 report to the Chief Constable --

17 Q. We are going to come to that in a moment, don't worry.

18 A. -- on 9 October 2000.

19 Q. Yes.

20 A. Because that report -- and, again, we are being urged to

21 move on -- that report supersedes some earlier

22 discussions. Regrettably, perhaps, that report wasn't

23 available to the Inquiry and to the Chief Constable when

24 he was giving his evidence by way of refreshing the

25 memory, but a lot of what I might need to say or be able

 

 

26

 

1 to say in open session is contained in that document.

2 Q. We will come to that in a moment, but I would be

3 grateful if for a moment you would just focus on the

4 specific questions I'm asking you.

5 If you look at the left-hand side on the screen,

6 RNI-622-003 (displayed), it looks as though when you

7 expressed your concerns about the request that he was

8 making, what Mr Port did in response was effectively to

9 say, "Look, I have got these terms of reference". That

10 was his position, wasn't it?

11 A. Oh, yes, that may well have been.

12 Q. Yes.

13 A. But please understand, these were no heated arguments;

14 these were professional discussions. Mr Port readily

15 accepted that his request was unprecedented in relation

16 to any intelligence agency anywhere in relation to

17 investigations. So there was common case about how we

18 might deal with the issue, the dilemma, the problem.

19 Q. Right, let's move on to the next stage of this at

20 RNI-622-005 (displayed), which is another note by

21 Mr Port of another meeting with you -- or another

22 conversation with you, I think I should probably say, in

23 which you explain in the second line that you had

24 discussed the issue with your Chief Constable, and it

25 says here:

 

 

27

 

1 "At this time, he ..."

2 That is you, obviously, B542:

3 "... had no authority to release the information."

4 Who, in your view, was the person with ultimate

5 authority in this regard? Was it the Chief Constable?

6 A. Yes, it was.

7 Q. Yes. And so were you suggesting to Mr Port at this

8 point that having discussed the issue with him, he, the

9 Chief Constable, had not permitted you to release the

10 information?

11 A. I can't recall, you know, the mechanics and sequencing

12 of that. I go back to my earlier point that the key

13 document written at the relevant time, containing all

14 the factors as I saw them relating to the ultimate

15 decision, were contained in that report.

16 So I'm not going to try to remember ten years later,

17 you know, what the Chief Constable thought and what

18 I thought the following week. The matter was of such

19 import that it required clear research and documentation

20 and examination of protocols, most of all the

21 legislation. We were in the area of Articles 2 and 8 of

22 the Human Rights Act, we had RIPA in existence and we

23 had been involved in piloting all the protocols, we had

24 various revised procedures in place. So I did not have

25 the authority to make a decision.

 

 

28

 

1 Q. Thank you.

2 A. Which would at that point in time have meant some

3 movement from the existing rules.

4 Q. Right. Can we look now at the relevant paragraph of

5 your statement in this regard, which is 227, RNI-846-761

6 (displayed).

7 There, having made the point which you have just

8 made, that this was an unprecedented request, you go to

9 talk about the various meetings. In the penultimate

10 sentence, you say that what was in issue here, apart

11 from necessity -- do you see there, we have talked about

12 that -- was the question of relevance and that a case

13 had to be made out in each regard, in each case, both on

14 relevance and necessity.

15 Can I ask you this question: in terms of relevance,

16 was that a matter that you regarded as being your

17 province to determine, whether the request was relevant,

18 the information was relevant to the investigation?

19 A. It is very easy to answer. You are making out the case

20 for it. Quite clearly the applicant would be

21 demonstrating his or her interpretation of relevance.

22 It goes with the reasoning as to why it might be

23 relevant or necessary.

24 Q. But are you saying that you would be the ultimate judge

25 of whether he had made out that case on relevance?

 

 

29

 

1 A. That would be a matter of in-depth discussion and,

2 indeed, perhaps legal advice and specific cases that

3 came to the situation.

4 That's hypothetical, I think, to a degree, in that

5 the relevance and necessity and proportionality of the

6 application has to be assessed. There was nothing in

7 any of this documentation to show the rationale or

8 necessity, or the reasoning why. We are all reasonable

9 people and we are all -- try to take the view, as the

10 law implies, the reasonable man. But you have to do

11 that on the best information available to you and

12 critical decisions and judgments have to be made on the

13 best information.

14 Q. Yes --

15 A. And more particularly they have to be legally

16 defensible.

17 Q. Indeed --

18 A. Can I say, because I have been told we must do the best

19 we can in this session, I had a very important

20 responsibility to provide the best possible advice in

21 this regard to the Chief Constable, not only for the

22 protection of him and myself, but also for the

23 protection of the wider organisation against any

24 subsequent litigation.

25 Q. Yes.

 

 

30

 

1 A. And the fears of political exploitation.

2 SIR ANTHONY BURDEN: So you were basically the adviser to

3 the Chief Constable on any decision that he made?

4 A. I needed to put the information together, sir, as you

5 readily understand.

6 SIR ANTHONY BURDEN: But you were his adviser on that?

7 A. Yes. I should also mention -- I'm sorry, but I have

8 been asked to deal with this in terms of the duty of

9 care, breach of confidentiality, et cetera, et cetera --

10 the very recent case then of Swinney v the Police in

11 Northumbria. So there are protocols and legislation.

12 There are no excuses about this. It had to be done

13 professionally and by the book.

14 MR PHILLIPS: So far as the Chief Constable is concerned,

15 his evidence on this was extremely clear. He told us

16 that as far as he regarded the matter, if Colin Port,

17 who was in charge of this investigation, said that he

18 needed this information for his investigation, then he

19 should have it.

20 Now, was that a view that the Chief Constable

21 expressed to you at the time?

22 A. No, and I'm not contradicting the Chief Constable for

23 one moment, a man for whom I had the highest regard and

24 a very close working relationship. The Chief Constable

25 made his decision on this matter in January 2001, which

 

 

31

 

1 was some months later. So in his discussions with me,

2 the Chief Constable was not giving me his decision; he

3 was very wisely gathering information and advice.

4 Q. So you don't recall him stating his position in those

5 terms at the time?

6 A. What I do have, and as it is a matter of record -- him

7 saying that Mr Port would not be given anything in

8 writing.

9 Q. Let's look at that now, please -- 234 of your

10 statement -- and can we have RNI-846-763 and RNI-846-764

11 on the screen at the same time, please (displayed).

12 A. But that needs qualifying. There was nothing there to

13 suggest that this was the Chief Constable's final

14 decision. That was an observation.

15 Q. It is something that you note in your own journal in

16 your account of this meeting. What did you understand

17 by the Chief Constable saying that no written list would

18 be supplied? Was that his final position? Was it an

19 interim position?

20 A. No, no, no. I have just said the Chief Constable gave

21 his decision the following January. This is in whatever

22 it is, is it September or October?

23 Q. September.

24 A. Yes, I mentioned that it is unfortunate that my

25 report -- subsequent report wasn't available before the

 

 

32

 

1 Chief Constable gave his evidence. This was

2 fact-finding, information gathering, examination of the

3 issue by the Chief Constable, by myself and others, and

4 the only professional and sensible and prudent thing to

5 do was to put that all together in a proper document,

6 which was done.

7 Q. Did you think at this stage, or at any stage before the

8 final decision was made in January, that the

9 Chief Constable had given you an assurance of any kind

10 that these identities would not be revealed to the Port

11 investigation?

12 A. No, we had not.

13 Q. As far as you are concerned, he did not give such an

14 assurance. Is that right?

15 A. As far as I'm concerned, the only observation along the

16 way was that he wouldn't get anything in writing.

17 Q. Yes.

18 A. That didn't infer what the ultimate decision might be or

19 might not be.

20 Q. Right. Let's have a look at the next stage along the

21 way, which we can see recorded in a Security Service

22 note at RNI-532-157 and RNI-532-158, if we could have

23 both of those pages, please, on the screen (displayed).

24 Now, we see it is a note of a conversation between

25 the Regional Head and a Security Service officer, who is

 

 

33

 

1 a redacted name, so far as the Inquiry is concerned, and

2 it records a good deal of discussion about this issue of

3 whether CHIS identities should be released.

4 Can I ask you this, please: were you aware that B629

5 had contacted the Security Service in relation to this

6 issue?

7 A. Yes, I would have been.

8 Q. And presumably he did so with your authority?

9 A. As I mentioned yesterday, contact with the Security

10 Service liaison adviser -- sorry, legal adviser -- and

11 I don't mean to exaggerate this, but it was probably

12 a weekly business. I also qualify -- repeat what I said

13 earlier, that the business of CHIS identity and the

14 joint responsibility of Mr Port and ourselves in terms

15 of the security and the context in Northern Ireland and

16 Articles 2 and 8, et cetera, et cetera, Mr Port and

17 I and others had dealt with that professionally, had, if

18 you like, tackled that problem and managed it

19 professionally from very early on. So there would have

20 been nothing -- this was, if you like, a continuation

21 along the way.

22 So in terms of, you know, B629 needing authority or

23 whatever, the DCI and senior Security Service staff were

24 visiting B629 at least once a month, double-checking on

25 any issues, the CHIS, those that might have been jointly

 

 

34

 

1 handled -- we are now in sensitive territory again,

2 vis--vis the closed session. So everybody was wanting

3 to do the very best they could to get the best results.

4 Q. Yes. But this contact was by no means part of a regular

5 process, was it, because we can see that it was

6 initiated by B629 saying he had an urgent matter to

7 discuss? And we can see from paragraph 3 that the issue

8 on which he wished to get the support and help of the

9 Security Service was to back up Special Branch's

10 position vis--vis this request from Colin Port. Do you

11 see that in paragraph --

12 A. I do, indeed, yes.

13 Q. And there is a reference to you there in the second line

14 of paragraph 3, and two lines from that it says that:

15 "The Head of South Region said that in his opinion

16 the Chief might need to have a discussion with someone

17 in top management of the Service, eg the Deputy Director

18 General, to encourage him to resist Port's request."

19 Now, as far as you were aware, did the Security

20 Service share your concerns in Special Branch about the

21 requests that Mr Port had made?

22 A. Well, I think I have already given evidence to that

23 extent.

24 Q. And you were here, or B629, on behalf of Special Branch

25 was, seeking to get the Service to intervene by having

 

 

35

 

1 a discussion with your Chief Constable. Is that right?

2 A. Well, intervene is not necessarily the right -- not

3 necessarily the right word. I would have been liaising

4 with the DCI, others -- we would have been discussing it

5 in relation to the legal advice, we would have been

6 discussing it in relation to the implications for joint

7 handling, for national security, all the other many

8 things we could talk about in closed session. And

9 I feel quite passionate about this. Most of it, again,

10 is reflected in my report -- and I keep going back to

11 that -- you will see where the Security Service had

12 their top management stood by. It was a matter of great

13 concern to them. They have given evidence about that;

14 it is in the documentation.

15 Q. Yes.

16 A. So all this was ultimately to ask -- let's be realistic

17 here. Somebody had to make the decision and it fell to

18 the Chief Constable, so he had to get the best possible

19 advice in relation to national security matters. And

20 the implications of what we are talking about was (a)

21 unprecedented, (b) was top secret. Top secret. We are

22 not talking here about one CHIS or two CHISs, that was

23 all dealt with along the way, which I explained earlier,

24 and is very important background information for the

25 Inquiry if they need it.

 

 

36

 

1 Q. What was being said here by the Regional Head of the

2 South Region was not that the Chief Constable needed

3 advice, but that somebody at the top of the Service

4 needed:

5 "... to encourage him ..."

6 That's the Chief Constable:

7 "... to resist Port's request."

8 Now, was that your aim in Special Branch to get the

9 Security Service to encourage the Chief Constable to

10 assist the request being made by Mr Port?

11 A. My aim is very clearly reflected in my written report,

12 and I made my recommendation, and that was that we

13 follow the well established rules.

14 Q. Right.

15 A. I used the term -- it is not yes or no -- recognising

16 the complexity, the difficulty. We were charged, as

17 I mentioned -- there were earlier experiences where CHIS

18 who were compromised sued the force, some of them sued

19 forces in Great Britain. We could go on about this.

20 I don't wish to take up too much of the time of

21 Inquiry, given that all these factors are in my written

22 report, which is much more accurate and a much better,

23 quite obviously, account than what I might attempt to do

24 ten years later.

25 Q. Can I ask you this simple question: did you tell the

 

 

37

 

1 Chief Constable that you were in contact with the

2 Security Service on this issue?

3 A. It would be -- I'm struggling for the word -- totally

4 ridiculous to think that I wouldn't have.

5 Q. Is the answer to my question: yes, you did?

6 A. I'm sorry, but, you know, my report is there. If you

7 said to me on what day did I tell him what -- we were

8 dealing here with a massive amount of critical issues at

9 that time. The Chief Constable was well versed in

10 national security matters. He had been in E Department.

11 To think that we wouldn't have discussed the

12 implications and the involvement and the interest of the

13 Security Service would be ridiculous in the extreme.

14 Q. So the answer is you think you did tell him?

15 A. Of course we would have discussed as many aspects of

16 this issue as it was conceivable to do.

17 Q. Thank you. Now, let's move to another Security Service

18 note, please, which takes the story just a little bit

19 further on.

20 Here, again, S224, the Assistant Director in

21 T Branch, records another conversation on this issue

22 with B629. It is at RNI-532-170 and RNI-532-171

23 (displayed), and the specific issue I wanted to ask you

24 about is this -- paragraph 4:

25 "Returning to the theme of the political pressure on

 

 

38

 

1 the Chief Constable and his anxiety that Flanagan might

2 not hold the line, [B629] said that if South Region was

3 let down, then they would be minded to pay off all their

4 Loyalist agents."

5 Did you believe, based on your conversations with

6 629, that that was the way in which he regarded the

7 implications of a decision to release the identities?

8 A. No, I think that's a misrepresentation.

9 Q. You think that's an exaggerated version of his position?

10 A. I think it is mispresented

11 Q. You didn't share that view then? You didn't believe

12 that if the decision was made, then the Loyalist agents

13 would have to be paid off?

14 A. No, and I wouldn't believe that 629 believed it either.

15 But that's not to say that there might not have been

16 considerable implications.

17 Q. Now, so far as your report is concerned -- I think we

18 can find that -- I hope we can find it -- at RNI-548-571

19 (displayed). What I would like to do is have

20 RNI-548-572 on the screen at the same time, please

21 (displayed).

22 Now, you have made obviously a number of references

23 to it already. Is this the report that you have been

24 referring to, of 9 October 2000?

25 A. That's it, and it is important to record that both

 

 

39

 

1 Mr Port and myself agreed that that report should be

2 preserved, and that was done and has been made available

3 to this Inquiry at my request within the past few weeks.

4 Q. Now, so far as the comments that you make there are

5 concerned, you say in the second paragraph:

6 "This application has national security connotations

7 ..."

8 Clearly there is no need for us to go over that

9 again.:

10 "... with possible implications for other agencies

11 beyond this jurisdiction."

12 You then go on to say:

13 "If it ever became public that the proposed course

14 of action was acceded to (even without specific details)

15 it could seriously undermine confidence in the whole

16 regime."

17 And that was clearly a concern of yours at this time

18 in October 2000?

19 A. If it became public.

20 Q. Indeed. Now, of course, in due course it did reach the

21 press, as you explain in your witness statement, in

22 about the end of December 2000. And you tell us in your

23 statement -- and I'm not going to take you to it, but it

24 is at paragraph 242 -- that you were all, in

25 Special Branch, outraged by the fact that this

 

 

40

 

1 information had been leaked to the press, as you saw it.

2 Is that correct?

3 A. Oh, absolutely.

4 Q. Yes. Now, so far as that is concerned, you say in

5 paragraph 243 of your statement that you were never able

6 to establish how the newspapers got hold of that

7 information. But is this correct: that in

8 Special Branch the general assumption was that the

9 information had been leaked to the media by the Murder

10 Investigation Team?

11 A. I think the general assumption is a very sweeping

12 statement. There may have been thoughts on the parts of

13 individuals, looking at possibilities. At the end of

14 the day nobody had evidence. I see from other

15 statements, where perhaps some of the MIT at quite

16 senior level thought it might have been Special Branch.

17 So -- or CID, I think they mentioned as well. I would

18 not get into professional condemnation without some

19 intelligence or evidence on which to base my reasoning.

20 What I can say is that Special Branch officers were

21 outraged by it. If we were looking for a motive as to

22 why that happened, then it is very hard to see why

23 Special Branch officers would want something done that

24 would impact adversely on the confidence and potentially

25 the security of their agents, bearing in mind their

 

 

41

 

1 extensive training under the tutelage of the Security

2 Service and their experience in handling, et cetera,

3 et cetera, and their knowledge and awareness of the

4 implications of any compromise of an agent and how that

5 impacts on the confidence of other and, again, how it

6 reduces the further capability to gather intelligence.

7 Q. Now, at this stage at late December 2000, when the media

8 coverage appeared, no decision had been made by the

9 Chief Constable. Is that right?

10 A. That's right, yes.

11 Q. What of the suggestion that might be made that it could

12 well have been leaked to the media by Special Branch in

13 order to put pressure on the Chief Constable to decline

14 the request made by Mr Port?

15 A. Well, if somebody holds that kind of conspiracy theory,

16 so be it. I couldn't comment on that.

17 But suffice to say that professionally

18 Special Branch officers were outraged. They would not

19 wish to see any situation created where their sources

20 would have been jeopardised, and most of all, the risk

21 of cutting off future success to that and other

22 enquiries through agents who still might have a hope of

23 gleaning relevant intelligence.

24 Q. Yes. Now, let's have a look at what B629 thought about

25 it. We can see that vividly at RNI-548-585 (displayed),

 

 

42

 

1 which is on 8 January to you, attaching a report which

2 I'm not going to take you to, but it is the report from

3 B503 about the media coverage. It says this:

4 "This leak to the media can only be described as an

5 act of treachery, which will undoubtedly have serious

6 long-term repercussions for E Department and our ability

7 to reach the intelligence requirement set by our

8 customers. I'm disappointed to find yet another

9 newspaper article which will have a detrimental effect

10 on our intelligence gathering capabilities."

11 As far as he was concerned, you must have realised

12 that the treachery that he was talking about there was

13 treachery on the part of the MIT. Isn't that right?

14 A. It is wrong to speculate. Treachery on the part of

15 whoever. It is very explicit language and obviously

16 clearly expressed as frustration --

17 Q. Indeed.

18 A. -- with this having happened.

19 Q. Yes. Did this episode damage relations between

20 Special Branch and the MIT?

21 A. I don't recall that it did. I don't recall that it did.

22 I'm sure it is common sense that things like this

23 wouldn't enhance confidence in the overall attempts to

24 achieve a particular goal or in terms of the overall

25 organisation.

 

 

43

 

1 You know, I go back to the point -- you said between

2 Special Branch and the MIT. We were in this together.

3 I go back to the point: the MIT was here at our behest,

4 et cetera, et cetera, and we had discussions yesterday

5 about the Int Cell, et cetera. We had Special Branch

6 officers within that int cell and I see reference to it

7 in another statement of Mr Port's which you have shown

8 me which I only managed to see at lunchtime yesterday,

9 so I have had limited time to respond to it. But there

10 are many factors in it that I would have a view on as

11 well if the Inquiry has time at any stage. I will leave

12 it at that. We need to be succinct.

13 Q. So far as its decision was concerned, you tell us in

14 paragraph 246 of your statement at RNI-846-769

15 (displayed) that the decision was finally made, I think

16 on 10 January 2001, and the decision was, of course, to

17 release the names, as you put it, to Mr Port.

18 Did the Chief Constable give you an explanation for

19 why he had arrived at that decision?

20 A. I don't recall any particular form of words. Clearly to

21 protect the organisation and the Chief Constable and

22 myself, we needed the decision in writing and it goes

23 without saying --

24 Q. And you eventually got that, didn't you, as we can see

25 at 248?

 

 

44

 

1 A. At a subsequent time, yes.

2 Q. At the moment, indeed, of the actual viewing of the

3 names. Isn't that right?

4 A. That's right.

5 Q. You made sure that the paperwork was in order, if I can

6 put it that way, and got a handwritten direction from

7 the Chief Constable on that day, 25 January?

8 A. As far as we could, yes. There were some security

9 arrangements and protocols drawn up as well in draft

10 form.

11 Q. Yes, and you record the conditions which you explain to

12 Mr Port were to be set around the information coming to

13 him. Is that right?

14 A. Well, the Inquiry will examine that documentation and

15 see that there was some complementary security

16 arrangements and conditions.

17 Q. Indeed.

18 A. I don't want to put it any further in this forum.

19 Q. Right. Now, so far as the reaction of Special Branch to

20 news of the decision is concerned, this was a matter

21 that was discussed and noted by you at a meeting on

22 16 January just after the decision was made,

23 6 January 2001. Is that correct?

24 A. Yes, I'm sure that is, yes.

25 Q. Now, I think it would be helpful in relation to this to

 

 

45

 

1 look together at your journal note, and it is just

2 a single page at RNI-549-264 (displayed). You say:

3 "Again discussed request in presence of the [your

4 deputy], from DCC Port for CHIS details. Informed the

5 Chief Constable ... "

6 Obviously you had a discussion with him about it:

7 "... that the detective chief superintendents were

8 extremely unhappy at this decision, also Security

9 Service. Advised him to obtain reasons in writing from

10 DCC Port as they were seen as a precedent for others to

11 follow, egg Mr H Orde."

12 As he then was. I just want to pick up a number of

13 points arising out of this with you. First of all, it

14 was your understanding, was it, that the Security

15 Service were extremely unhappy with the decision that

16 the Chief Constable had made?

17 A. Oh, yes, I think they have reflected that in other

18 documentation.

19 Q. Right. Next, please, you tell us there that you advised

20 the Chief Constable -- you say this also in your

21 statement -- to get reasons from Mr Port in writing and

22 that as far as you are aware -- is this correct? -- no

23 such reasons in writing were provided; is that correct?

24 A. Yes, that goes to the heart of the matter.

25 Q. Indeed.

 

 

46

 

1 A. Not for me as an individual, but in terms of the law and

2 the procedure and, most of all, the legal defensibility

3 of the organisation, i.e. the RUC, who were the custodians

4 of this matter, and who quality -- to underpin and to

5 ensure both the Chief Constable and his organisation.

6 Q. Yes. And this was the point you and I discussed

7 earlier: the need to establish relevance, necessity,

8 et cetera, et cetera, on an individual basis was still

9 your theme. And as far as you were concerned, Mr Port

10 had not done what was required; is that right?

11 A. Indeed, I note in Mr Kinkaid's second statement -- I

12 think it is paragraph 34 -- where he refers to his

13 understanding of the case needing to be made or a case

14 needs to be made. So I don't think there is any any

15 difficulty about that.

16 Q. It looks also, finally, as though one of your concerns

17 here was that the Chief Constable's decision would be

18 regarded by others as a precedent. Is that right?

19 A. Of course.

20 Q. And the example you give there, "egg Mr H Orde" related,

21 did it not to the Stevens enquiry?

22 A. That's right, yes.

23 Q. Which was also ongoing, Stevens 3, at this time?

24 A. That's right.

25 Q. And at which, no doubt, such requests had been made and

 

 

47

 

1 it was anticipated that more would follow?

2 A. When you talk about precedent, when you are being forced

3 or encouraged or whatever to move from what are

4 established rules and principles, particularly in the

5 area of security and Articles 2 and 8 implications and

6 all the other factors that I have in my report -- but

7 I'm acknowledging that ultimately someone had to make

8 the decision.

9 All I'm saying is when you move the boundaries under

10 legislative provision and protocols, that can have

11 knock-on implications. It can be quite easily or

12 quickly classified as a precedent by others.

13 I acknowledge that each -- hence my situation and

14 recommendation was that we -- matters are done on

15 a case-by-case basis.

16 MR PHILLIPS: Thank you.

17 Now, so far as I'm concerned, those are the

18 questions I want to ask you in the open session.

19 Questions by DAME VALERIE STRACHAN

20 DAME VALERIE STRACHAN: Sorry, I just wanted to follow

21 through on this whole very difficult issue.

22 A. Yes.

23 DAME VALERIE STRACHAN: I have no difficulty in

24 understanding the concerns of Special Branch and of

25 yourself; none at all. It is all very clear and it has

 

 

48

 

1 been explained to me several times now.

2 However, looking at Mr Port's terms of reference --

3 and I wonder if it would be possible to have them up on

4 the screen.

5 MR PHILLIPS: Yes, RNI-831-084 is the relevant part

6 (displayed).

7 DAME VALERIE STRACHAN: Paragraph 7. Surely that must have

8 been seen, mustn't it, as giving what it says:

9 "... unlimited access to all intelligence and

10 information available to and all files held by the RUC"?

11 Surely that must have been obviously a ticking time

12 bomb, so far as you were concerned? And wasn't the time

13 to have expressed all these concerns, which I fully

14 understand, at the time of the drafting of the terms of

15 reference?

16 A. Yes. Well, I don't recall having any input to the terms

17 of reference and, indeed, I think Mr Port's statement

18 will show that he drafted them, assisted perhaps by

19 Mr Kinkaid. And I personally did not have input into

20 the drafting of the terms of reference

21 DAME VALERIE STRACHAN: But you told us that you didn't have

22 any difficulty with them.

23 A. That's right, but I'm just answering your particular

24 point. I don't think -- we must live in the real world

25 here. I had no problem with unlimited access to all

 

 

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1 intelligence and information available. That goes

2 without saying. That would have been the reciprocal

3 position.

4 DAME VALERIE STRACHAN: And all the files?

5 A. We would have been proactive about that. I don't think

6 the Chief Constable or any -- or myself, or I don't

7 think the Chief Constable either, for one moment

8 interpreted that as relating to top secret CHIS

9 register. I think there is a quantum leap from

10 intelligence and information and files --

11 DAME VALERIE STRACHAN: And information. Information covers

12 everything, doesn't it?

13 A. No. I think if we look at the protection -- and, Dame

14 madam, you will be well versed in this -- I think if we

15 examine the rules as they then were and are today under

16 RIPA, et cetera, et cetera, I think there is a quantum

17 leap from information to a register, class, group, in

18 top secret where the rationale and the reason and the

19 relevance and the necessity is not documented.

20 We dealt with individual cases very sensibly and

21 easily in accordance with the rules.

22 DAME VALERIE STRACHAN: Yes, I have understood all that.

23 A. Yes.

24 DAME VALERIE STRACHAN: It is just that as written in plain

25 words, it would not appear to carry all the very

 

 

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1 understandable caveats that you have introduced.

2 Thank you.

3 MR PHILLIPS: Now, what I always say to witnesses, as you

4 know, at the end of their evidence in the open

5 session -- and I'm going to follow exactly the same

6 procedure with you -- is that if there is any other

7 matter that we haven't covered which you wish to draw to

8 the attention of the Tribunal in the open session, this

9 is your opportunity. Is there any other matter?

10 A. Just a couple of concluding points.

11 First of all, I would like to thank the Panel for

12 their time and consideration and courtesy, and most

13 particularly for granting me anonymity. That's very

14 important to my family in the context of life in

15 Northern Ireland.

16 On the matter that we have just been discussing --

17 and I'm very happy to come back to it in the closed

18 session, and I guess we may do -- I'm comforted by the

19 fact that Mr Port says in his statement that he did not

20 see any of these discussions or delays as being in any

21 way obstructive and there, as ever, the proof of the

22 pudding is always in the eating. When he did eventually

23 examine the relevant part of the register, he found

24 nothing significant and he found no problems. So at the

25 end of the line, there were no issues there.

 

 

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1 I just want to say in conclusion that we, in my

2 department, enabled and empowered and supported the MIT

3 and Mr Port in particular in every conceivable way that

4 we humanly could, consistent with the many, many other

5 demands upon us at that time. And I listed a number of

6 them yesterday -- I won't repeat them now -- other major

7 investigations that needed to be serviced, subsequent

8 atrocities, et cetera, et cetera. It is unfortunate

9 that at the end we were not able to bring to justice the

10 perpetrators for yet another horrific murder.

11 As against that, the investigation did lead to

12 a number of other people being convicted for serious

13 terrorist crimes and I congratulate the MIT on their

14 achievements in that regard.

15 I'll say no more about CHIS now. I would like to

16 say a little more in the closed session, if it is

17 necessary. I mentioned earlier that CHIS in the context

18 of Northern Ireland were very brave people. The Inquiry

19 will already have heard where a significant number of

20 people, alleged by the their own organisations to have

21 been CHIS, were brutally murdered over many years.

22 CHIS and Special Branch played an unbelievable

23 part -- I know this from all my postings over

24 30 years -- in saving life. Most of it will never be

25 known. That includes people right up to the highest

 

 

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1 levels of the establishment. The intelligence services

2 together -- excuse me just a second (Pause) -- played

3 a critical part in bringing terrorists to the

4 negotiating table. The relative peace we now enjoy

5 would not have been achieved -- can I pause for one

6 moment?

7 MR PHILLIPS: Of course you can.

8 THE CHAIRMAN: Thank you very much for what you say. We

9 appreciate your justifiable deep-held views and we will

10 of course take those into account. I think it would be

11 a good idea if we adjourn.

12 A. Sir, I would like to just say one more word, if I may,

13 if I indulge your courtesy.

14 THE CHAIRMAN: Yes.

15 A. It will never be known the work of the intelligence

16 service, as I said, in bringing the terrorists to the

17 negotiating tables and saving life, right to the highest

18 levels of the establishment. No organisation is

19 perfect. We all learn from our experiences. Some of

20 those in Northern Ireland were very bitter and hard.

21 The decisions were life or death ones in many instances.

22 I'm proud that many of the methods and processes and

23 systems pioneered in Northern Ireland through difficult

24 and costly experience are now being used as best

25 practice and to good effect elsewhere. I want to

 

 

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1 conclude by acknowledging the courage and dedication of

2 those --

3 MR PHILLIPS: I think we should have a break --

4 THE CHAIRMAN: We are very grateful for what you said.

5 A. -- without the work of the intelligence services we

6 would have had a civil war here.

7 THE CHAIRMAN: Before the witness leaves, would the video

8 engineer please confirm the cameras have been

9 switched off?

10 THE VIDEO ENGINEER: Yes, sir, they have.

11 THE CHAIRMAN: Please escort the witness out.

12 We will resume at not before quarter past 11.

13 MR GRIFFIN: May I raise one matter when the witness has

14 withdrawn, a very brief matter?

15 THE CHAIRMAN: Certainly, Mr Griffin.

16 (The witness withdrew)

17 THE CHAIRMAN: Yes, Mr Griffin.

18 MR GRIFFIN: It simply has to do with the closed hearing.

19 Mr Phillips helpfully indicated yesterday that matters

20 to be covered related to CHIS and I think also the

21 question of CHIS identities. If that is the case,

22 I certainly do not seek access to the closed hearing.

23 But on a number of occasions today and yesterday, B542

24 has indicated there are numerous areas where he might

25 expand upon his evidence in closed session and in areas

 

 

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1 that, I would suggest, are of clear relevance to the MIT

2 both in relation to the issue of obstruction and due

3 diligence. If those in fact are areas that will be

4 covered in closed session, I would seek access to the

5 session, or at least that part of the closed session

6 dealing with those areas.

7 MR PHILLIPS: Can I say a word about that. I hope very much

8 that the ambit of the closed session will be limited or,

9 indeed, very limited, and for my part I don't expect to

10 enter into a lot of the areas that the witness indicated

11 he wished to deal with in the closed session.

12 However, I should say, in accordance with the ruling

13 that you made, if material does emerge in the closed

14 session which, in fairness, needs to be drawn to the

15 attention of the MIT, Mr Griffin and others in whatever

16 form, however -- whatever we do about it -- I think the

17 detail does not need to be dealt with now -- then of

18 course we will do so.

19 I hope that that is of at least some assurance to

20 Mr Griffin.

21 THE CHAIRMAN: As I understand it, what leading Counsel for

22 the Inquiry has said is if there are matters that could

23 properly have been raised in an open session, they will

24 be communicated to those Full Participants that, in

25 fairness, should know about them and that, of course,

 

 

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1 includes your clients, the MIT.

2 MR GRIFFIN: Thank you.

3 THE CHAIRMAN: And that's the procedure which will follow.

4 It, of course, covers all Full Participants.

5 Thank you.

6 (10.58 am)

7 (Short break)

8 (11.25 am)

9 (Closed session)

10 (12.20 pm)

11 (The hearing adjourned until Monday, 23 February 2009

12 at 10.00 am)

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