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Full Hearings

Hearing: 16th February 2009, day 107

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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, 16 February 2009
commencing at 1.00 pm


Day 107


1 Monday, 16 February 2009

2 (1.00 pm)

3 (Proceedings delayed)

4 (1.20 pm)

5 THE CHAIRMAN: I will do the checklist. Mr Currans, may we

6 go through the checklist, please. Is the public area

7 screen fully in place, locked and the key secured?

8 MR CURRANS: Yes, sir.

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

10 screen closed?

11 MR CURRANS: Yes, sir.

12 THE CHAIRMAN: Are the technical support screens in place

13 and securely fastened?

14 MR CURRANS: Yes, sir.

15 THE CHAIRMAN: Is anyone other than Inquiry personnel and

16 Participants' legal representatives seated in the body

17 of this chamber?

18 MR CURRANS: No, sir.

19 THE CHAIRMAN: Can the video engineer please confirm that

20 the two witness cameras have been switched off and

21 shrouded?

22 THE VIDEO ENGINEER: Yes, sir.

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

24 THE VIDEO ENGINEER: Yes, sir.

25 THE CHAIRMAN: Thank you.

2

1 Bring the witness in, please.

2 The cameras on the Panel, Inquiry personnel and the

3 Full Participants' legal representatives may now be

4 switched back on.

5 Would you please take the oath.

6 M540 (sworn)

7 Questions by MR PHILLIPS

8 THE CHAIRMAN: Yes, Mr Phillips.

9 MR PHILLIPS: Before starting my questions for this witness,

10 I should mention you have indicated to the Full

11 Participants that part of his evidence will be given in

12 a closed session, and I hope it is helpful to indicate

13 that the matters to be covered in that closed session

14 are, first, particularly sensitive questions which were

15 raised as to the possibility of collusion in relation to

16 the investigation itself; and secondly, some sensitive

17 matters in relation to sources of intelligence.

18 THE CHAIRMAN: Thank you.

19 MR PHILLIPS: I think that you have made a total of three

20 statements to the Inquiry; is that correct?

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

22 Q. Can we go through them together, the first, please, at

23 RNI-842-163 (displayed)? And if we turn over to

24 RNI-842-249 (displayed), do we see there your ciphered

25 signature and the date of 4 November 2008?

3

1 A. That's correct, yes.

2 Q. Thank you. And the second at RNI-842-270 (displayed)

3 and your ciphered signature at RNI-840-272?

4 A. That's right, yes.

5 Q. And the date of 19 January this year. And the third at

6 RNI-842-273 (displayed), and your ciphered signature at

7 RNI-482-292 (displayed) and the date of 29 January this

8 year?

9 A. That's correct, yes.

10 Q. Thank you. Now, you have been granted anonymity in the

11 Inquiry and given the cipher M540. I open you have been

12 provided with a list of other ciphers and names. Have

13 you?

14 A. I have, yes.

15 Q. Thank you. I would be grateful if you would consult

16 that list as and when you intend to mention a name so

17 that the anonymity of those other individuals may be

18 preserved.

19 Now, what I would like to do, please, is to start

20 with that part of this first statement that we have on

21 the screen that sets out something of your experience as

22 an RUC officer.

23 Now, unfortunately, some relevant details of these

24 paragraphs have been redacted so I'm going to take it

25 relative briefly. But is this right that: when you took

4

1 up position as the deputy SIO in the Rosemary Nelson

2 case in March 1999, you had some 26 years of police

3 service of which I think some 22 had been in the CID?

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

5 Q. Thank you. Now, taking just a few of the points you

6 mention, first at paragraph 7, RNI-842-165 (displayed),

7 you there refer to your involvement as a young detective

8 in the investigation of serious offences, including

9 murder, and go on in paragraph 10 to tell us that after

10 a period in uniform you came back to CID in 1981 and

11 again worked on investigations, including murder

12 investigations. Is that correct?

13 A. That's right, yes.

14 Q. Thank you. Now, in paragraph 12 on the same page -- if

15 we could have that enlarged, please -- you tell us that

16 in 1984 you were injured when a bomb exploded at the

17 scene of a murder that you were investigating. Is that

18 correct?

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

20 Q. And then in paragraph 13, how you were promoted to

21 detective inspector.

22 Now, if we move on to paragraph 14, please, on

23 RNI-842-167 (displayed), what I wanted to ask you,

24 please, there where you tell us about your transfer in

25 1991, is when it was that you first acted as a deputy

5

1 SIO in relation to a terrorist murder case?

2 A. The first time I acted would have been 1990.

3 Q. Thank you. And can I take it that from that point on

4 during this phase of your career, you so acted, in other

5 words, as deputy SIO, in a number of cases that of kind?

6 A. That's correct, yes.

7 Q. Thank you. Now, in we move on to paragraph 18, you tell

8 us there -- which is on RNI-842-169 (displayed) -- of

9 your involvement with this investigation. For some

10 reason, the month Mr Kinkaid's promotion has been

11 redacted. I think it was August 2000; he gave evidence

12 about it last week. But you took over his role as SIO,

13 did you not, on his promotion?

14 A. That's correct, yes.

15 Q. And you were yourself promoted to detective

16 superintendent the following year and remained in that

17 rank until your retirement in 2005?

18 A. That's correct, yes.

19 Q. By which time, as you say, you had done some 28 years of

20 your 32 years' service in CID?

21 A. That's right, yes.

22 Q. Now, can I just ask you to tell us in your own words,

23 please, about your experience in the 1990s; in other

24 words, in the years from the 1991 date we looked at and

25 the time you came to take over the role of deputy SIO,

6

1 to take that role up. Did you work as an SIO in murder

2 cases during that eight-year period?

3 A. I did, yes. During that period there was no recognised

4 role as SIO. It was a term really that emerged. But

5 quite often I ended up as SIO of most of the murders in

6 my subdivision, after the initial investigation was

7 complete. I would have usually started off as deputy.

8 Q. And in your paragraph 16 on RNI-842-168 (displayed),

9 where you tell us about becoming the head of CID in the

10 relevant division, it looks as though during that period

11 of between 1998 and 1999, again, you were working both

12 as SIO and deputy SIO. Is that correct?

13 A. That's correct, yes.

14 Q. Now, how did you come to be appointed as deputy SIO in

15 this case?

16 A. In this case I was actually appointed as SIO in my

17 absence because I was at the scene of the murder, and

18 when I arrived back at the local police station that

19 afternoon -- or later that evening, I was informed by

20 Mr Kinkaid that I was going to be his deputy to the

21 investigation.

22 Q. And again, in your own words, how did you see your role

23 as deputy?

24 A. I saw my role as fully supporting the SIO and assisting

25 him in every area of the investigation that he might ask

7

1 me to take care of. There might be some area, as in

2 this case, forensic, he asked me to just oversee

3 totally. So I took on that role. I also managed

4 conferences, was a reference point for the investigation

5 team and the various teams within the investigation

6 team, to clear up, create, clarify enquiries, et cetera.

7 Q. Thank you. So far as forensics is concerned, as I

8 understand it you began your work in that area of the

9 investigation at the scene?

10 A. That's correct.

11 Q. And, as it were, simply carried on as the forensic

12 aspect of the investigation developed?

13 A. That's correct, yes.

14 Q. Now, what about the position as and when Mr Port arrived

15 and then Mr Provoost? Did that have any impact on the

16 nature of your responsibilities as deputy SIO?

17 A. No, my role just continued the same as it was.

18 Q. And in that role and after those two officers had

19 arrived from England, to what extent were you involved

20 in determining the overall strategy and direction of the

21 investigation?

22 A. Well, I was present at the majority of -- not all of the

23 management meetings where I was available, and the daily

24 conferences and the various other meetings that we had

25 in relation to the investigation. And I would have --

8

1 like any other member of the senior management team,

2 making suggestions or receiving instructions, whatever.

3 Q. Thank you. Can we look together, please, at paragraph 3

4 of your -- I think it is your third statement, at

5 RNI-842-274 (displayed)? Because there in the first

6 sentence you tell us that you worked very much as

7 a team, and this continued to be the case after the

8 arrival of the English officers. Then you say this:

9 "There were high level meetings I was not privy to,

10 which Mr Kinkaid and the other members of the SMT

11 attended."

12 Can you give an idea of the sorts of areas that

13 those meetings you didn't attend dealt with?

14 A. It is difficult for me to say what happened at meetings

15 I wasn't at, but they were obviously meetings at

16 a strategic level with the Chief Constable, the

17 Assistant Chief Constable Special Branch and CID. And

18 I knew they were going away to those meetings, and

19 obviously the content of them I didn't know.

20 Q. So these were meetings -- the examples you have given --

21 which were with senior officers actually outside the

22 investigation team?

23 A. That's correct, yes.

24 Q. So in terms of high level meetings within the team,

25 i.e. the senior management team meetings, you would in

9

1 general have attended those; is that correct?

2 A. That's right, yes, apart from collusion meetings, the

3 collusion meetings were completely exclusive.

4 Q. So you, as an RUC officer, were not present at those

5 meetings?

6 A. That's correct, yes.

7 Q. And the same presumably would have applied to

8 Mr Kinkaid?

9 A. That's correct, yes.

10 Q. Thank you. So far as Mr Kinkaid is concerned, had you

11 worked with him before?

12 A. No, I hadn't.

13 Q. Did you know him?

14 A. I did know him, yes. He had been in my region just

15 a few months and I had some contact with him on other

16 matters.

17 Q. Now, so far as this investigation is concerned, one of

18 the points that emerges at various stages of your

19 statement is where you say that certain aspects of the

20 investigation were different from your experience of

21 previous investigations. I would like to just touch on

22 one point at this stage, please: in terms of the

23 political focus and media attention that this

24 investigation attracted, was it unique in your

25 experience to this point?

10

1 A. Not particularly. I had dealt with other cases where

2 there was a degree of political interest and

3 I personally had met politicians on one that I had SIO'd

4 myself. So -- and policing in Northern Ireland at the

5 time was constantly under scrutiny from politicians and

6 various politicians from whatever side made comments as

7 they thought in relation to each investigation. So it

8 wasn't anything that particularly fazed me.

9 Q. You didn't think that added to the pressures in this

10 case?

11 A. Not really.

12 Q. No. Can I ask you about another aspect that you touch

13 on as I think being different about this case. Is it

14 right that there came a point, I think in the summer of

15 1999, where you were enabled by Mr Port to work on this

16 investigation full-time?

17 A. That's correct, yes.

18 Q. Was that unusual?

19 A. Yes, that was the first time in my career that I had

20 ever worked exclusively on an investigation like this.

21 Q. And again, just to be clear, as far as you are

22 concerned, that was something that was brought about by

23 the intervention of Mr Port; is that right?

24 A. That's correct, yes.

25 Q. And what were the benefits?

11

1 A. Well, it allowed me to focus totally on the

2 investigation itself. I had obviously made it my

3 priority from the day it happened, but as in other

4 investigations, quite often you had day-to-day issues to

5 deal with your subdivision or division, dealing with

6 post, dealing with personnel matters that I was relieved

7 of when it came to this investigation.

8 Q. Did you continue full-time on it until your retirement

9 in 2005?

10 A. I did, yes.

11 Q. Yes. Now, clearly from what you have said, it wasn't

12 what you were used to. Were there disadvantages to that

13 sort of complete focus?

14 A. There is none really that springs to mind.

15 Q. Thank you.

16 A. Obviously there were tensions. The only thing, there

17 could have been tensions with other regional authorities

18 who perhaps wanted me to have an input into other

19 matters, which obviously the investigation took

20 a priority over. And those rubbing points had to be

21 resolved at various times, which they were.

22 Q. Now, so far as other elements which may have

23 distinguished this case, you, of course, found yourself

24 working for and alongside two senior officers from

25 outside Northern Ireland?

12

1 A. That's correct, yes.

2 Q. Can I take it that that was something you had not had

3 experience of before in your career?

4 A. Not in that capacity. I had worked with other officers

5 from outside Northern Ireland before but not in the

6 capacity where they were the officer in overall command

7 and the deputy.

8 Q. Yes, in the actual investigation?

9 A. That's correct.

10 Q. Yes. How did you and your colleagues in the RUC react

11 to the prospect of being managed by officers from

12 outside forces?

13 A. I think we -- all of the officers, including myself --

14 I certainly appreciated having the professionalism of

15 Mr Port and Mr Provoost in particular to assist us with

16 the investigation. This was an investigation that had

17 to -- not only to be independent in a sense, but to be

18 seen to be independent. And to me that added a lot of

19 value to the investigation and their input was

20 a tremendous advantage to us.

21 Q. Thank you. Now, so far as your relationship with

22 Special Branch is concerned, you make a number of

23 comments about this in your evidence, particularly in

24 the third statement that you have made. Can I take it

25 that you had many years' experience as a CID officer of

13

1 working with officers within Special Branch during the

2 course of investigations?

3 A. That's right, yes.

4 Q. And how did that relationship work out, so far as you

5 were concerned?

6 A. It never created any serious difficulty for me in my

7 relationship with Special Branch. I had a very good

8 working relationship, both on investigations and when

9 managing my division or subdivision as the case may be.

10 Q. Now, so far as your police experience is concerned,

11 obviously it was very extensive, had you ever spent any

12 time within Special Branch?

13 A. No, I hadn't, no.

14 Q. Can I ask you to look at paragraph 75 of your first

15 statement, (displayed)? Here you highlight

16 a particular experience you had, which I think you

17 regard as unusual for a CID officer -- do you see at the

18 bottom of the page? -- where you say you had had:

19 "(redacted)

20 (refacted)

21 (redacted)

22 (redacted)."

23 Can I take it that that was the closest you got, as

24 it were, to working with Special Branch?

25 A. In some ways, yes, in that type of operation, although

14

1 Special Branch wasn't involved in this operation; this

2 was a purely CID-led operation and CID, apart from

3 providing the equipment, had not -- in the course of my

4 enquiries over many years, I did have close contact with

5 Special Branch when interviewing prisoners and

6 exploiting opportunities to gather intelligence.

7 Q. Yes. Now, that's one aspect of it. Presumably you were

8 also dealing with Special Branch as a deputy SIO or as

9 an SIO, seeking to obtain from them related intelligence

10 in relation to your particular investigations?

11 A. That's correct, yes.

12 Q. And can I ask you to look, please, at some general

13 comments about that that you make in your third

14 statement, RNI-842-274 (displayed), because there at the

15 end of the paragraph -- and it is about six lines up

16 from the end of the page -- you say:

17 "When conducting a serious investigation such as

18 a murder, I would always approach Special Branch to

19 ascertain if they had any intelligence relating to the

20 incident. Ordinarily, any intelligence provided by

21 Special Branch would be disseminated to the SIO by way

22 of a Special Branch briefing form. This was usually in

23 abbreviated format that provided for the protection of

24 the source."

25 So the form in which the intelligence reached you,

15

1 at least initially, was determined by Special Branch

2 themselves?

3 A. That's right, yes.

4 Q. Now, imagine the hypothetical situation: you are the SIO

5 or the deputy SIO in an investigation. You receive the

6 briefing form with its sanitised intelligence. How do

7 you go about finding out more?

8 A. I would approach the -- usually the detective inspector

9 or my opposite number in Special Branch to see if I

10 could find out more, and would say, you must -- you

11 know: is this a human source; is it a technical source;

12 where is it from; how did you get it; what do you think

13 of it yourself? I would just ask those type of direct

14 questions.

15 Q. Did the extent to which you got more depend very much on

16 personalities, on the relationship --

17 A. Possibly, yes.

18 Q. In other words, it wasn't so much a question of rules,

19 but on building up a relationship of trust?

20 A. That's correct.

21 Q. With individual officers?

22 A. That's correct.

23 Q. Is that a fair way of putting it?

24 A. Yes.

25 Q. Thank you. And you say in paragraph 6 -- if we could go

16

1 over at that page, please, the next page, RNI-842-275

2 (displayed):

3 "This depended to a certain extent upon what sort of

4 personal relationship one had with individual

5 Special Branch officers."

6 In other words, presumably, some were a little bit

7 more forthcoming than others?

8 A. That's right, yes.

9 Q. Now, you go on in this same paragraph to say:

10 "Again, in general terms I had quite a good

11 relationship with Special Branch which helped

12 considerably both with this investigation and with other

13 investigations. I had a good understanding of the work

14 they did and had a degree of credibility because of the

15 close working relationship with them for many years."

16 How did that credibility assist you in your work as

17 an investigator?

18 A. I think it assisted me in terms of trust, because I had

19 worked alongside many officers over many years and had

20 close working relationships with them in terms of

21 exploiting intelligence, and that I hadn't let them down

22 in -- for want of a better expression in the past. Then

23 that trust built through the years.

24 Q. But am I right in thinking that even if you had built up

25 the relationship over the years, as you tell us that you

17

1 had, it was very much down to you to be actively seeking

2 more because once they determined what was relevant and

3 handed it over to you, unless you went to them, as it

4 were, that was what you were left with?

5 A. Well, generally speaking, although I have, in many

6 investigations and in this investigation, got additional

7 material which came to hand which the officer had

8 brought to my attention, but in all cases I had the --

9 it was my approach to ask for more, to seek a clarify

10 what is there.

11 Q. But the initial judgment remained their judgment as to

12 what was relevant to the investigation, didn't it?

13 A. Obviously, yes.

14 Q. And was that over the years a source of frustration to

15 you as a CID officer, from time to time?

16 A. Absolutely, it was, yes.

17 Q. Because presumably you felt you had a much better idea

18 of what was actually relevant to your own investigation?

19 A. That's correct, yes.

20 Q. Were there cases in your experience when you felt that

21 some Special Branch officers had withheld intelligence

22 which was relevant to the investigation?

23 A. None that immediately spring to mind. It is obviously

24 difficult to know if something is being withheld from

25 you when you don't know what is there in the first

18

1 place.

2 Q. Yes. But you can't think of a case where you realised

3 later, or you learned at a subsequent stage, that

4 something had been held back?

5 A. No.

6 Q. Now, if you had not a certainty, but a suspicion that

7 there was more of relevance, can I take it that you

8 would then have gone back and tried to persuade, as it

9 were, face-to-face -- persuade the officer face-to-face

10 to give you some more help?

11 A. Yes.

12 Q. Yes. Now, so far as the relationships between the two

13 parts of the RUC, namely the CID on the one hand and

14 Special Branch on the other, what you tell us in

15 paragraph 17, RNI-842-279 (displayed), is that most

16 Special Branch officers in Northern Ireland had no CID

17 experience. Do you see? That's about four lines from

18 the end of the page there. Can I take it again that

19 that's based on your experience over those years?

20 A. That's correct, yes.

21 Q. What about the reverse? Was it ever a complaint made by

22 Special Branch that CID officers didn't know what their

23 work was about because they had no experience of working

24 within Special Branch?

25 A. It wasn't a complaint I heard aired at all.

19

1 Q. But could you see from their perspective how they might

2 feel that that created some difficulty?

3 A. Yes, I could see that.

4 Q. Because the CID officers, they might have thought,

5 didn't sufficiently understand what they were about and

6 in particular the need to protect their assets?

7 A. There may be a perception. As far as I personally was

8 concerned, I had no difficulty understanding their

9 requirements and the need for them to protect their

10 assets.

11 Q. Thank you. Now, on the question of their assets, if we

12 go back to paragraph 5 of your statement at RNI-842-275

13 (displayed), as I read your first sentence there at the

14 top of the page -- if we could enlarge it; thank you

15 very much -- the assets in terms of the intelligence,

16 the sources of intelligence that Special Branch

17 (inaudible), were viewed by them, and perhaps by you, as

18 belonging to Special Branch as opposed to belonging to

19 the RUC as a whole. Is that correct?

20 A. That's correct, yes.

21 Q. In other words, when they had disseminated intelligence

22 beyond Special Branch, that was to, as it were, go

23 outside the circle of protection which was limited to

24 Special Branch itself?

25 A. That's correct, yes.

20

1 Q. And no doubt that explains why, at least initially, you

2 get everything in sanitised form?

3 A. That's right, yes.

4 Q. Yes. Now, so far as those briefing sheets that we

5 looked at you've dealt with already in your statement

6 are concerned, presumably, as an experienced

7 investigator, you learned to interpret the way they were

8 expressed and, as it were, the subtext of what they

9 might be saying in those briefing forms. Is that

10 correct?

11 A. Well, you always tried to in any case. Whether you were

12 successful or got the right angle was another thing.

13 Q. Yes. So far as the basis for the sanitising is

14 concerned, what you tell us in paragraph 210 of your

15 first statement, RNI-842-237 (displayed), is that source

16 protection -- this is the fourth line of that paragraph,

17 210:

18 "... dominated the mindset of SB officers when it

19 came to sharing intelligence."

20 And, again, that, I can take it, can I, is based on

21 your own experience of dealing with them over the years?

22 A. Yes, that's right.

23 Q. And what impact did that have on your work as an

24 investigator, the business of source protection and

25 their mindset about it?

21

1 A. Well, it is something I agreed with. Obviously a loose

2 word -- loose talk costs lives, and once obviously

3 Special Branch disseminated anything, if they didn't

4 disseminate it correctly and properly protect it, it

5 could end up in the death of someone.

6 Q. Now, just returning to the point you made earlier about

7 the nature of your relationships with Special Branch and

8 the way in which you went about the business of getting

9 more information for your investigation, can I just ask

10 you to think about this situation: if you made an

11 attempt face-to-face in what I think Mr Kinkaid

12 described as a corridor conversation, to get more and

13 were refused, what option did you then have?

14 A. Well, you had the option of putting it in writing, as we

15 did in this particular case.

16 Q. Is that something that you were used to doing in earlier

17 cases?

18 A. No, not really.

19 Q. So putting that on one side and just thinking about your

20 own experience in cases before this one, how would you

21 get round a refusal in the face-to-face conversation by

22 a Special Branch officer?

23 A. I would probably get round the same way, but I never had

24 that problem.

25 Q. So you always found them willing to say more?

22

1 A. I did, yes.

2 Q. In the hypothetical situation of a refusal, obviously in

3 your own case it doesn't apply because of your success

4 rate --

5 A. I wouldn't say success.

6 Q. Well, the way you managed to persuade, put it that way,

7 would you have been able to appeal to a more senior

8 officer within your part of the CID for help?

9 A. I think the difference between this investigation and

10 other investigations was the terms of reference, which

11 were given to Mr Port when he came, and probably because

12 of the way that we tackled this investigation from the

13 start. In other investigations, my redress would have

14 been to go to the regional head of CID, my regional

15 head, told him if that case existed, which I have never

16 had that experience, I would have expected him to take

17 it up with the Head of Special Branch to see if we could

18 develop the matter further.

19 Q. So there were possible channels, it is just you didn't

20 have to call on them?

21 A. That's correct, yes.

22 Q. Thank you. Can I ask you about the working relationship

23 with Special Branch if this case, in the Rosemary Nelson

24 case, and in particular ask you to look at paragraph 7

25 of your third statement, which begins at RNI-842-275 at

23

1 the bottom and continues to RNI-842-276 because here you

2 draw some general conclusions about the relationship.

3 Could we have RNI-842-276 (displayed) on the screen as

4 well, please. Thank you very much. Because here you

5 express, as I say, a general conclusion about the

6 relationship, where you say:

7 "Overall my experience was that we got more

8 cooperation from Special Branch on the Mrs Nelson murder

9 investigation than I had had on other investigations in

10 the previous 25 years."

11 A. That's right, yes.

12 Q. So despite all the persuasive skill that you had

13 exercised in those earlier investigations, in fact what

14 was achieved here was a different level of assistance

15 and cooperation; is that right?

16 A. Yes, in terms of getting access to material and systems

17 that we put in place, it was better.

18 Q. Then you go on to give some reasons at the top of the

19 next page, do you see, and it looks as though you are

20 pointing there to the appointment of B567 as the liaison

21 officer and his presence at various meetings, ad hoc

22 meetings, as well as the weekly meetings, and his

23 location -- the fact that he was close by, and you could

24 go and see him no doubt and he could come and see you to

25 deal with matters as they arose?

24

1 A. That's right, yes.

2 Q. Yes. So that, in your statement, is the way you are

3 putting it at that stage. You have already mentioned

4 the business of Mr Port's terms of reference and

5 presumably you are thinking of paragraph 7, where he was

6 assured that he would have full access to all

7 intelligence; is that right?

8 A. Yes.

9 Q. Now, what about the particular approach that was taken

10 by the investigation team, which you already mentioned,

11 again, in terms of writing things down? Was that of

12 assistance, do you think?

13 A. Could you clarify just what you are asking again?

14 Q. Do you remember, you have already mentioned that an

15 unusual thing so far as this investigation was concerned

16 was that requests of Special Branch were written down?

17 A. Yes.

18 Q. And that was a policy of Mr Kinkaid, was it not?

19 A. That's right, yes.

20 Q. We will come to some specifics in a minute. Do you

21 think that that in general helped to create this level

22 of cooperation?

23 A. Yes, it did. It allowed our systems to get in place

24 where there was a chain of communication that we could

25 have with Special Branch and with the Headquarters

25

1 department within Special Branch that allowed us to get

2 deeper intelligence about matters that we needed to know

3 about.

4 Q. And to what extent do you think that the fact that

5 Mr Port established an intelligence cell also helped to

6 promote the good relationship with Special Branch that

7 you are talking about here in your evidence?

8 A. Well, I think that instilled within the Special Branch

9 that we were setting up a mechanism whereby intelligence

10 that they could give us was being firewalled from the

11 normally HOLMES room environment, which wasn't as secure

12 as they would have wanted it to be, or any of us would

13 have wanted it to be, for that matter.

14 Q. So you think that that encouraged a confidence and trust

15 in the Special Branch officers, do you?

16 A. I believe so, yes.

17 Q. Yes. Now, you have talked about your relationship with

18 Special Branch officers in general terms and in your

19 previous experiences. Did you know this particular

20 liaison officer, B567?

21 A. I did, yes.

22 Q. And you had worked with him in previous investigations;

23 is that right?

24 A. That's correct, yes.

25 Q. And how was the relationship between you?

26

1 A. We had a good relationship, a good working relationship.

2 He was the Head of Special Branch for the division where

3 I worked. I was the Head of CID for the division where

4 I worked. It was important that we got on, but not only

5 was it important, but we did get on very well.

6 Q. Did that, do you think, help to create a good working

7 relationship between the investigation on the one hand

8 and Special Branch on the other?

9 A. I think it was a aide. It was run factor that assisted.

10 Q. Now, in terms of the MIT, the investigation, did you or

11 any other senior officer have particular responsibility

12 for liaising with Special Branch?

13 A. No, really Mr Kinkaid and I and the full management team

14 had access, including the Head of the Intelligence Cell.

15 Q. So there wasn't, as it were, a particular point man for

16 Special Branch?

17 A. No.

18 Q. Now, so far as Mr Kinkaid is concerned, he told us in

19 his evidence about the particular approach he decided to

20 take in this case, reducing things to writing and, I

21 think the word he used was that he was taking a "robust"

22 approach. Was that a strategy, a plan, for dealing with

23 Special Branch that he discussed with you?

24 A. No, it wasn't. I think that is much in Mr Kinkaid's

25 nature.

27

1 Q. Right. Now, you say you knew him but you hadn't, I

2 think, previously worked with him. Is that correct?

3 A. That's correct, yes.

4 Q. Before you started to work with him on this

5 investigation, did you know what his attitude towards

6 Special Branch was?

7 A. I didn't, no.

8 Q. Was he regarded as someone within the force who had

9 a grudge against Special Branch?

10 A. Not to my knowledge, no.

11 Q. Did you gather from B567 or any other Special Branch

12 officer what attitude they took to the news of his

13 appointment as the SIO to this investigation?

14 A. I wasn't privy to any conversation like that.

15 Q. Right. Now, the impression one gets from your statement

16 is that you thought that there were difficulties

17 inherent in this robust approach, putting things in

18 writing, that Mr Kinkaid decided to take. Is that

19 a fair way of putting it?

20 A. Yes, I would say there is probably tensions.

21 Q. Yes. And can I take it that if you had been the SIO,

22 you would have handled things differently?

23 A. I don't think so in these circumstances.

24 Q. You think you would have reduced things to writing, for

25 instance, do you?

28

1 A. Yes.

2 Q. Why do you say that?

3 A. Simply because this is a highly sensitive investigation,

4 an important investigation, and collusion lay at the

5 heart of this investigation. And I was aware -- and I

6 think Mr Kinkaid and I were both aware at this very

7 commencement that this was going to be a very firmly

8 scrutinised investigation, and the reason we are sitting

9 here today is obviously because we anticipated well, and

10 for that reason, we could see that you have to do things

11 in a certain way.

12 Q. And that there had to be, as it were, a record of taking

13 a clear and strong approach in your dealings with

14 Special Branch?

15 A. That's correct.

16 Q. Is that right? Yes. Now, were you also, though, aware

17 of the potential downside that this sort of approach

18 might be seen by them as being rather combative and that

19 might make them a little wary about sharing information

20 or intelligence with you?

21 A. Well, it was obvious from the outset that it did cause

22 a little bit of, let's say, disquiet, simply because we

23 weren't developed vetted, for instance, and therefore it

24 would -- they really couldn't give us intelligence until

25 that was the case, or any greater intelligence or

29

1 access, simply because of the level of security

2 clearance we had at that time.

3 Q. Now, so far as the tensions you have mentioned are

4 concerned, is it fair to say that one of the

5 difficulties here was that your way of working, if I can

6 put it this way, the personality-based way of working --

7 in other words, building up relations with

8 individuals -- wasn't going to bear fruit here because

9 of what some at least have seen as the personality clash

10 between Mr Kinkaid on the one hand and the Regional Head

11 of Special Branch, B629, on the other?

12 A. I'm not sure exactly what you are asking.

13 Q. Fair comment. First of all, did you see there being

14 a personality clash between those two officers?

15 A. No, I didn't see it as open hostility. Certainly there

16 was tensions and I don't think each other were on each

17 other's Christmas card list, but at the same time they

18 were professional -- both professional officers who did

19 a good job and if boundaries were pushed, then perhaps

20 B567 tried to push them back again to what he considered

21 to be an equal standing.

22 Q. So you saw him in a sense a being something of a

23 mediator. Is that a fair way of putting it?

24 A. Yes.

25 Q. If we see Mr Kinkaid at one end and B629 at the other,

30

1 do you see yourself and B567 somewhere nearer the

2 middle?

3 A. Possibly, yes.

4 Q. Now, did the tensions -- let's leave it at that --

5 between Mr Kinkaid and B629 have any adverse impact on

6 the investigation, as far as you are concerned?

7 A. No, I don't think so. And I think it would be wrong to

8 emphasise the tensions because really things calmed down

9 after a period when protocols were put in place and

10 systems were put in place. Those sort of -- any

11 tensions that there were seemed to diminish

12 considerably.

13 Q. Can I just ask you one or two more questions about

14 Mr Kinkaid. I have asked you about the suggestion that

15 some have advanced here, that he had a grudge. Insofar

16 as his approach is concerned, was he, do you think,

17 trying to set a precedent for future investigations in

18 his relationship with Special Branch?

19 A. There certainly wasn't anything he discussed with me,

20 and if that was the case, it wasn't apparent. It may

21 have been a perception of others, but certainly not

22 mine.

23 Q. Now, can I ask you to look at what you say about this in

24 your third statement, RNI-842-279 (displayed)? That's

25 paragraph 15. First of all, you say:

31

1 "Our request for this information ..."

2 And this is in the specific context of Operation

3 Fagotto:

4 "... was certainly more robust than usual.

5 Mr Kinkaid had his own way and style of doing things."

6 Then you draw a contrast between his approach and

7 your own. Do you see, in the last sentence you say:

8 "He probably felt it put more pressure on

9 Special Branch as he had given them something in

10 writing."

11 Was that one of his aims, as far as you were aware:

12 to put pressure on Special Branch?

13 A. No, I think actually maybe that paragraph isn't very

14 clear in my statement. What Mr Kinkaid done was

15 actually give action sheets, a HOLMES action sheet to

16 the Head of Special Branch and that would be sort of

17 outside the protocol of who you would give actions to.

18 You would give actions to your own team rather than

19 directly to somebody outside who wasn't really

20 accountable to you as the SIO. And in that terms, his

21 approach was different from mine. I would have given --

22 perhaps allocated to myself to obtain information and

23 then wrote it off.

24 So it is just a procedural issue there, but in terms

25 of giving -- yes, I did think it maybe helped to put

32

1 some pressure to obtain the information.

2 Q. But presumably you could see that that way of dealing

3 with Special Branch, issuing them with action sheets

4 very early on in the investigation, might have put their

5 backs up?

6 A. It could have.

7 Q. Do you think it did?

8 A. I'm not sure. In fairness to B629, he took this

9 investigation very seriously and I think in terms of all

10 the Special Branch officers, my view is that they were

11 as keen to see us apprehend the culprits for the murder

12 of Mrs Nelson as we were.

13 Q. Now, can I just ask you about what happened on Mr Port's

14 arrival, obviously some three weeks or so after the

15 investigation had begun. You've mentioned already his

16 terms of reference and paragraph 7 we have discussed

17 those briefly together. Did you, based on your own

18 knowledge of Special Branch over the years, anticipate

19 that that paragraph of his terms of reference, granting

20 him unfettered access, was going to cause problems with

21 Special Branch?

22 A. I would say -- yes, I would imagine it would cause some

23 discomfort for Special Branch because certainly they had

24 to have a mechanism. They were certainly going to have

25 to provide more detailed information perhaps to Mr Port

33

1 than they had provided in the past, and they still had

2 the -- they were still driven by the need for source

3 protection, and they probably had to work out for

4 themselves a method where they could communicate the

5 information to CID.

6 Q. So it was going to take them into new territory, as far

7 as you were aware?

8 A. Yes, it was.

9 Q. Yes. So far as procedures for dealing with all of this

10 sort of thing are concerned -- you have referred already

11 to protocols -- right at the outset we can see from the

12 Operation Cornwall log -- that is the Kent officers'

13 log -- at RNI-837-006 (displayed), that a system was

14 proposed with the aim of making sure that the SIO got

15 full access to relevant intelligence.

16 Now, Mr Kinkaid -- do you see, it is set out there

17 at the bottom of the page? I appreciate you weren't

18 present at this meeting, but do you see that there was,

19 as it were, an appeals system? If the Special Branch

20 and the SIO couldn't agree on disclosure to him of

21 specific intelligence, then there would be, as it were,

22 an appeals system through the Chief Constable of Kent,

23 if we look on the next page, RNI-837-007 (displayed), up

24 to, do you see, the Chief Constable of the RUC?

25 A. That's correct, yes.

34

1 Q. Mr Kinkaid told us that, as far as he was concerned,

2 this system proposed at the outset of the investigation

3 was not in fact put in place. Is that correct?

4 A. I wasn't really aware of this until late on in the

5 investigation.

6 Q. So it sounds as though it is very unlikely that it was

7 put in place if you weren't even aware of it?

8 A. It is unlikely simply because when Mr Port came,

9 everything changed with his terms of reference.

10 Q. Yes. So did you feel then on his arrival that you were

11 in a still stronger position vis--vis Special Branch?

12 A. Yes.

13 Q. Yes. Now, so far as how it worked out in practice if

14 there were difficulties is concerned, you deal with that

15 in paragraph 18 of your third statement, RNI-842-280

16 (displayed). You say there, in the case of difficult

17 circumstances that they would have talked confidentially

18 with Mr Port:

19 "In any case, I would have imagined that they would

20 have found some method of informing Mr Port."

21 I appreciate that by definition you wouldn't have

22 been involved in such discussions, but were you aware

23 from time to time that Mr Port was made privy to certain

24 information which he couldn't pass on to you or

25 Mr Kinkaid or others; in other words, he was in

35

1 discussion with Special Branch separately?

2 A. Yes, I was aware of that.

3 Q. And as far as you were aware, again, from your position

4 in the MIT, did that create any difficulties for the

5 investigation?

6 A. Not really, because that was a question for Mr Port to

7 resole. Obviously if there was something that he felt

8 needed to be then disseminated into the other members of

9 the senior management team, then obviously it was

10 necessary for him to take those steps to make sure that

11 he could get that advanced.

12 Q. Thank you. Now, so far as the way in which you made

13 known to Special Branch what you required from them is

14 concerned, can I ask you to look at paragraph 12 of your

15 statement, the same one we have got on screen,

16 RNI-842-277 (displayed).

17 Here, you talk about the five actions that you have

18 already mentioned and we know that they came very early

19 in the investigation, the day after the murder. Did

20 that system of issuing actions in writing continue after

21 Mr Port's arrival?

22 A. No, not in terms of issuing actions. We would have

23 issued perhaps a report. Sometimes it was a personal

24 request made to the Special Branch officer at our weekly

25 meetings, where if we needed something particular, it

36

1 would have been spelt out to them and perhaps recorded

2 in the minutes of the meeting.

3 Q. In those meetings, the regular weekly meetings that we

4 have seen reference to in your statement before, would

5 the Special Branch liaison officer have been updated as

6 to areas of interest for the investigation?

7 A. That's correct, yes.

8 Q. And perhaps specific tasks or reports sought from him in

9 the course of the meeting?

10 A. Yes.

11 Q. Now, what about the Special Branch officer's involvement

12 or knowledge of lines of enquiry; in other words, of the

13 way the investigation itself was proceeding?

14 A. Well, the Special Branch -- my recollection -- attended

15 most of our conferences on a daily basis. So,

16 therefore, they would have been quite aware of our major

17 lines of enquiry.

18 Q. Now, can I ask you, in terms of pre-murder intelligence,

19 in other words, intelligence relevant to the

20 investigation but which pre-dated the murder, as far as

21 you were aware, where within Special Branch did the

22 responsibility lie for gathering together that

23 pre-murder intelligence?

24 A. I'm not just exactly sure. It possibly could have lay

25 with the Head of South Region, but I would have imagined

37

1 it lay in E3 Department at that time.

2 Q. The Headquarters department?

3 A. Yes, the Headquarters department.

4 Q. Yes. And would I be right in thinking then that if it

5 was the Headquarters, E3, that they would, as it were,

6 bring it together, collate it, but it would reach you,

7 the Murder Investigation Team, via B567?

8 A. That's right yes.

9 Q. Is that correct?

10 A. That's right.

11 Q. And can I also take it that you were reliant on your

12 liaison officer, B567, to communicate to Headquarters,

13 to E3, what you wanted, what you regarded as relevant in

14 terms of that pre-murder intelligence?

15 A. That's correct, yes.

16 Q. So he was the --

17 A. Conduit.

18 Q. Conduit. Thank you very much. Both ways?

19 A. Yes.

20 Q. Now, so far as post murder intelligence was concerned,

21 did the system work in the same way?

22 A. Yes, in terms of both, I would have expected the local

23 Special Branch, if they were aware -- that's the local

24 Special Branch in the region, if they were aware of

25 something that they felt relevant to us which they had,

38

1 whether it was pre or post, to hand over to us. And

2 likewise in terms of the centre, E3 and Headquarters,

3 they should have done likewise. And, indeed, any

4 Special Branch officers in the country.

5 It was a well-known murder investigation, had had

6 a high profile. There were several articles in the

7 media and in the newspaper and I would imagine that any

8 officer who felt that any intelligence that was relevant

9 to the Rosemary Nelson murder should have saw that that

10 was communicated through whatever conduit to the

11 investigation team.

12 Q. Now, so far as the points you have been making there

13 about relevance is concerned, as I understand it, you

14 were relying, effectively, on B567 to make sure that the

15 other parts of Special Branch, including E3, the

16 Headquarters, knew what you, the Murder Investigation

17 Team, regarded as relevant to your work?

18 A. We are not solely depending on 567. We also initiated

19 enquiries on our own through report to them on a regular

20 basis to clarify different aspects of intelligence.

21 Q. Just so I am clear, you would ask for specific reports

22 on particular issues; is that right?

23 A. Yes, that's right, yes.

24 Q. Now, so far as the way things worked after you took over

25 as SIO, did you make any changes to the systems that we

39

1 have been discussing together?

2 A. I don't think I made any major decisions, major changes

3 to what we had -- the procedures we had in place.

4 I felt they were quite good, they worked, and we got the

5 information we needed, albeit -- at a later stage,

6 I decided along with Mr Provoost to conduct a review of

7 all intelligence to make sure that there was no gaps or

8 something that we had overlooked or missed.

9 Q. So we have got the chronology of all of that right, that

10 later review that you have just mentioned, a review of

11 intelligence, I think, am I right in thinking that that

12 was set up in about late 2003?

13 A. Yes, it was in 2003. I don't remember the date. In

14 saying that, we did quite regularly review various

15 aspects of the intelligence as we went along.

16 Q. But the difference presumably is that this was

17 a comprehensive review of all intelligence; is that

18 right?

19 A. Yes.

20 Q. And what prompted that?

21 A. Simply by that stage we were getting well into the

22 investigation, and coming at a time when we had to be

23 looking towards closure. And there was nothing more

24 than that; it was something we wanted to do.

25 Q. Now, so far as some specific incidents are concerned,

40

1 which you deal with in your statement, can I start with

2 the matter we have got on the screen, Operation Fagotto,

3 because as we have heard from Mr Kinkaid, there were

4 some specific -- and from you, indeed -- specific

5 requests made, including requests in the five actions

6 for details of SB and military undercover operations in

7 the relevant area over the previous weekend. Is that

8 right?

9 A. That's right, yes.

10 Q. What prompted that request in particular, please?

11 A. Well, it wasn't uncommon for operations to be conducted

12 in that -- in the Lurgan area, in fact in the Mid Ulster

13 area, by Special Branch. We had no knowledge that there

14 had been an operation, but it was certainly something

15 that had to be asked: had the operations running. If

16 there were operations running, did they have people on

17 the ground, people on the ground that might likely to

18 have unnoticed vehicles or people that could help us in

19 the investigation.

20 Q. So it wasn't prompted by any early information you had

21 received that there might have been something relevant

22 going on that weekend?

23 A. No, we knew there was considerable activity that area

24 unrelated to Special Branch activity. There was public

25 unrest on the ground. There were various police

41

1 officers on the ground. We were covering every aspect

2 that we could of every single police officer, every

3 member of the military that was on duty over the

4 weekend. We wanted them interviewed to see if they had

5 gleaned any information. Also, because of the question

6 of collusion, to also see where everyone was throughout

7 that whole weekend.

8 Q. And, again, can I take it that you understood the need

9 for this part of the investigation to be not only

10 thorough but transparent?

11 A. Absolutely.

12 Q. Yes. Now, you make a number of comments about this

13 issue and the delay, the short delay that took place

14 before you were informed about the operation in

15 paragraph 14 on the next page, RNI-842-278 (displayed).

16 And you say first of all about the two to three day

17 delay:

18 "I know this was a source of frustration to

19 Mr Kinkaid, but it did not unduly surprise me."

20 Why do you say that?

21 A. It probably didn't concern Mr Kinkaid or frustrate him

22 until he learned of it three days later obviously. We

23 had asked for it on the 16th; I think it was the 19th

24 when I got the information.

25 Q. Yes.

42

1 A. Where it didn't unduly concern me or frustrate me, it

2 was simply that I knew that Special Branch took their

3 time to check things out and they probably would have --

4 I'm not sure if I have explained it -- must have checked

5 out what operations they did have, were they within the

6 vicinity of the area that we were talking about, if

7 anyone had been close to Mrs Nelson's home and, if that

8 was the case, they would have had to trace the officers

9 and make them available for interview and probably see

10 them before we saw them to see what they did see.

11 Q. So that didn't surprise you?

12 A. No, because I realised that would take time.

13 Q. Yes. But it was, when he discovered about it, something

14 that frustrated and irritated Mr Kinkaid?

15 A. It did, yes. Obviously I personally would have liked to

16 have known it the next day as well, but I had a degree

17 of understanding, having investigated Special Branch in

18 the path, an operation in the past. I knew the time

19 that it took to get this type of information.

20 Q. Yes.

21 A. Because I was frustrated previously on another

22 investigation.

23 Q. In similar circumstances?

24 A. In similar circumstances.

25 Q. Yes. But do you think it affected Mr Kinkaid's

43

1 relationship with the Special Branch officers?

2 A. I don't think it did.

3 Q. It was just a momentary frustration?

4 A. It was a frustration and a tension and a rubbing point,

5 but I think it evaporated again.

6 Q. You then say at the end of this page:

7 "I also suspected that had one of the surveillance

8 operatives not driven past Mrs Nelson's house on that

9 night, we may never have known about it. In the

10 circumstance, my sense was that they were being more

11 forthright than usual in providing us with this

12 information."

13 Now, what are you getting at there, please?

14 A. Well, obviously when Fagotto became known to me,

15 I understood the details and the sensitivity of the

16 operation they were carrying out. I knew that it was

17 being carried out on someone no less than half a mile

18 from Mrs Nelson's home and I would imagine that there

19 was the possibility that they could have had

20 deliberation as to whether it was necessary for us to

21 know about that. And I think wiser counsel prevailed

22 and maybe the driving of the officer past Mrs Nelson's

23 house was the catalyst that swung them in that

24 direction. However, it is purely just supposition on my

25 part and I can't be any firmer than that.

44

1 Q. You think that that maybe was the clinching factor?

2 A. Yes.

3 Q. So far as the way it was decided to deal with the issue

4 is concerned, that you were to interview the officers

5 with, I think, DCI Gutsell present for some of those

6 interviews --

7 A. Yes.

8 Q. -- was that the way that you would have dealt with this

9 matter in Mr Kinkaid's shoes?

10 A. Yes. As I understand it, Mr Humphreys, Mr Gutsell and

11 I, we all had deliberation on the matter and we decided

12 this was the way it should be done.

13 Q. And you say in --

14 A. Ideally it would have been better had Mr Gutsell

15 performed the interviews and I supported him, but that

16 wasn't to be in the circumstances.

17 Q. The Kent officers weren't willing to get involved in

18 that active way in the investigation, were they?

19 A. Well, I don't know if "willing" is the right word to

20 use, but I don't think they felt that that was their

21 role.

22 Q. Now, so far as the impact of all of this on the

23 Special Branch officers concerned goes, you deal with

24 that in your statement in the last sentence of

25 paragraph 20 at the top of RNI-842-281 (displayed),

45

1 where you say:

2 "Whilst nothing was said directly to me by any of

3 the officers involved, I sensed an apprehension in the

4 air about this issue."

5 Did you sense that they felt they were being treated

6 as suspects?

7 A. I think in some ways probably I did. You could sense

8 a tension: you know, "Who are you investigating? Why

9 aren't you catching the killers of Rosemary Nelson? Why

10 are you interviewing us?" That was my perception. It

11 could be totally wrong, but that was my perception.

12 Q. Yes. Finally, so far as the presence of this senior

13 Special Branch officer was concerned, present in the

14 interview, I mean, B508, was that unusual?

15 A. I didn't find it unusual. Over the years I had

16 interviewed many SAS officers, Special Branch officers

17 in similar situations and it wasn't unusual to have

18 a senior officer present.

19 Q. And you didn't think it in any way detracted from the

20 interview process?

21 A. Certainly not on my part. I carried out the interview

22 and did what I had to do and I wasn't interrupted or

23 frustrated in doing what I had to do.

24 MR PHILLIPS: Thank you.

25 Sir, would that be a convenient moment?

46

1 THE CHAIRMAN: Certainly. We are going to have a quarter of

2 an hour break now.

3 Before the witness leaves, can the video engineer

4 please confirm that all the cameras have been

5 switched off?

6 THE VIDEO ENGINEER: Yes, sir.

7 THE CHAIRMAN: Thank you. Please escort the witness out.

8 A quarter to three.

9 (2.29 pm)

10 (Short break)

11 (2.49 pm)

12 THE CHAIRMAN: The checklist. Is the public area screen

13 fully in place, locked and the key secured?

14 MR CURRANS: Yes, sir.

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

16 screen closed?

17 MR CURRANS: Yes, sir.

18 THE CHAIRMAN: Are the technical support screens in place

19 and securely fastened?

20 MR CURRANS: Yes, sir.

21 THE CHAIRMAN: Is anyone other than Inquiry personnel and

22 Participants' legal representatives seated in the body

23 of this chamber?

24 MR CURRANS: No, sir.

25 THE CHAIRMAN: Thank you.

47

1 Can the video engineer please confirm that the two

2 witness cameras have been switched off and shrouded?

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

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

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

6 THE CHAIRMAN: Thank you.

7 Bring the witness in, please. Do sit down.

8 The cameras on the Panel, Inquiry personnel and Full

9 Participants' legal representatives, may now be switched

10 back on.

11 Yes, Mr Phillips.

12 MR PHILLIPS: Can I just ask one final question in relation

13 to Operation Fagotto. You have told us about the

14 interviews that you conducted in the presence of B508

15 and, for the most part, DCI Gutsell.

16 Is it right to say that at the end of the

17 investigation which the MIT conducted, you formed the

18 conclusion that there was no connection, certainly no

19 sinister connection, between the operation and the

20 murder of Rosemary Nelson?

21 A. Nothing that we could determine.

22 Q. Thank you. Now, I would like to move on to a different

23 topic now, please, and it is also dealt with in your

24 third statement at RNI-842-283 (displayed) in a passage

25 which is heavily redacted. With that very much in mind,

48

1 is it right that you are telling us there about

2 a request by Mr Kinkaid -- do you see the

3 paragraph 28? -- for details of calls from

4 Special Branch, that request being made very shortly

5 before he left the investigation?

6 A. That's right, yes.

7 Q. Now, bearing in mind the redactions, what can you tell

8 us, please, in this open hearing about the purpose of

9 the request?

10 A. Purpose of the request was to verify information that we

11 had received from telephone analysis, and we wanted to

12 check if the Special Branch could enlighten as to

13 what -- on their analysis.

14 Q. And you go on to say that you recall that Special Branch

15 officers were concerned about where you had got the

16 information, the information that you were trying to

17 check. Is that correct?

18 A. That's correct, yes.

19 Q. And then, again, bearing in mind the nature of these

20 open hearings, you make the comment at the end:

21 "I can understand how it looked to Special Branch."

22 What can you say in the open hearing to enlighten us

23 as to the meaning of that comment, please?

24 A. It may go back to the point that they could have thought

25 that we were investigating them rather than

49

1 investigating something else.

2 Q. Thank you. So it is back to that sense of apprehension

3 that we talked about in relation to Fagotto, the sense

4 that they might themselves be under investigation?

5 A. That's correct, yes.

6 Q. Thank you. Now, it is right, isn't it, that shortly

7 after making the request, Mr Kinkaid withdrew it? Do

8 you remember that?

9 A. I remember that, yes.

10 Q. Were you involved in the decision to withdraw it?

11 A. No, I think that was involved in at least a conversation

12 between Mr Port and Mr Kinkaid, if not with

13 Special Branch.

14 Q. And it looks as though the issue moved, as it were,

15 above your head and was taken up in the chain of

16 command; is that correct?

17 A. That's correct, yes.

18 Q. Can I take it that from the Murder Investigation Team's

19 point of view, that involved Mr Port himself?

20 A. That's correct, yes.

21 Q. Now, in the end of the third paragraph in this section,

22 you say:

23 "The exchange of correspondence in the issue itself

24 did not cause any particular difficulty with

25 Special Branch at my level. I may possibly have chatted

50

1 about this with ..."

2 Then you mention the liaison officer, B567. Can you

3 remember what his attitude to this episode was?

4 A. I think I would be right in saying he was ruffled by it.

5 Q. Can I take it from the earlier comment here that this

6 did not cause a long-term problem, as far as you were

7 concerned?

8 A. As far as I was concerned, it didn't.

9 Q. The way in which this issue went up the chain of command

10 at this point in August 2000, do you think that that was

11 in any way due to the tensions which had existed from

12 time to time in the preceding 18 months or so between

13 the MIT and some Special Branch officers?

14 A. I can't be sure of that. It could have come about just

15 as a result of concerns perhaps for clarification on

16 behalf of Special Branch, and I think they probably

17 wanted reassurance.

18 Q. Now, can I just check another point with you? In

19 paragraph 32 of your statement, RNI-842-284 (displayed),

20 another paragraph where there are redactions: requests

21 for CHIS identities. We have heard evidence about this

22 already from various witnesses and we will no doubt hear

23 more from Mr Port and Mr Provoost. You had no

24 involvement in that issue yourself; is that correct?

25 A. Not at that time, no.

51

1 Q. Did there come a point later on, when you were the SIO,

2 when you were involved in matters of that kind?

3 A. There was, yes.

4 Q. Was that after the departure of Mr Port or before?

5 A. After the departure of Mr Port.

6 Q. So when Mr Provoost had taken over as the OIOC?

7 A. Correct, yes.

8 Q. Again, in relation to this issue of the request -- and

9 I'm now talking about the request in

10 2000, August 2000 -- as far as you were aware, although

11 you weren't involved in the issue itself, did that cause

12 tension and difficulty with Special Branch?

13 A. The issue regarding CHIS?

14 Q. Yes.

15 A. Yes, it did.

16 Q. Did that have a lasting impact on the investigation?

17 A. It probably -- it had no lasting impact on our

18 investigation. At the end of the day we had got what we

19 sought for.

20 Q. At the beginning of the following year?

21 A. At the beginning of the following year.

22 Q. Yes. Did it have an impact on the important

23 relationships between individuals?

24 A. Certainly at my level there was no tensions. That took

25 place at a higher level and involved certainly

52

1 ACC Special Branch, other people, Mr Port and the

2 Chief Constable.

3 Q. Were you aware of it causing difficulties in

4 relationships at those higher levels?

5 A. I wasn't really privy -- I just detected that it was

6 causing some tension, but nothing was spelled out

7 clearly to me.

8 Q. So far as you were concerned in your relationship in

9 particular with the liaison officer, that was

10 unaffected. Is that correct? Is that what you are

11 saying?

12 A. Yes, that's right.

13 Q. Can we turn now to the question of which individuals,

14 which organisations, may have been responsible for the

15 murder. So we moving to a completely different topic.

16 A. Okay.

17 Q. What I would like to do with you, please, is to start

18 towards the end of your due diligence statement --

19 that's your first statement -- and ask you to look at

20 paragraph 247 at RNI-842-238 (displayed). Here you say

21 in the third line:

22 "Whilst one had to keep an open mind as to who was

23 responsible, all the information pointed towards

24 Loyalists and, in particular, the LVF. I was acquainted

25 with all of this intelligence ..."

53

1 That, as I understand it, is the intelligence you

2 received during the course of the investigation:

3 "... and I knew about the forensic examination on

4 the scene."

5 Then in the next paragraph in this section of your

6 statement, 248, at the bottom of this page, you say:

7 "In the case of terrorism the motive quite often can

8 be established once the victim is identified. Whilst I

9 did not approach this case with closed mindset, as soon

10 as soon as I heard of the attack on Mrs Nelson

11 I immediately considered the possibility that it could

12 well be a Loyalist terrorist group that was

13 responsible."

14 Now, looking at that second observation first, if

15 I may, did you immediately consider the possibility that

16 it was a Loyalist organisation responsible because of

17 what you knew about Rosemary Nelson?

18 A. Yes, simply one can be killed in Northern Ireland

19 because of your religion. And the very fact that she

20 was from the Roman Catholic side of the house, for want

21 after better expression, made her in some persons' eyes,

22 a legitimate target or an important one.

23 Q. What else did you know about her at the time of the

24 murder?

25 A. I knew that she was a solicitor that represented

54

1 a number of clients including the members of the

2 Provisional IRA.

3 Q. Had you come across her in the course of your work?

4 A. Not really in my earlier career. I had come across her

5 just as a solicitor attending court.

6 Q. What was her reputation, as far as you were aware?

7 A. At that time --?

8 Q. Yes.

9 A. She was just an up and coming solicitor. She wouldn't

10 have been along the main solicitors in the court. There

11 were notable solicitors around Lurgan. She wouldn't

12 have been one of them at that time.

13 Q. Now, so far as your beliefs about Loyalist terrorist

14 involvement are concerned, did those beliefs remain

15 constant throughout your time on the investigation; in

16 other words, that Loyalist terrorist groups were

17 responsible?

18 A. It was, yes.

19 Q. You didn't have cause, as far as you were concerned, to

20 modify or change that initial view?

21 A. Obviously I had to take other considerations into

22 accord, but throughout the investigation, on the basis

23 of what I was provided with and what I was looking at,

24 certainly we believed that it was the Loyalists were

25 responsible.

55

1 Q. Now, just looking forward to the time when you became

2 the SIO, in September 2000, did you at that stage, on

3 taking over the role of SIO, seek to review or amend any

4 of the then existing major lines of enquiry?

5 A. We didn't really change many of the existing lines of

6 enquiry. What I sought to do was see if we could

7 progress what we already had. Probably to that extent,

8 we took opportunity where we could to make direct

9 approach to CHIS who were not Special Branch agents, to

10 gather information and to see what they knew of the

11 murder, and to some extent that was enlightening in some

12 ways.

13 Q. Can we just look at the relevant part of your statement

14 on this? It begins at paragraph 231 at RNI-842-234

15 (displayed), and here at the bottom of the page, do you

16 see there, after the large redaction --

17 A. Yes.

18 Q. -- you say in relation to the lines of inquiry first of

19 all:

20 "They had been kept under continual review and

21 development and I saw no need for a change of direction

22 or focus. I sought, however, to consolidate the

23 investigation through a process of clarifying and

24 reviewing each specific line of enquiry being followed

25 with a view to reaching a conclusion or identifying

56

1 further lines ..."

2 Then there is a typo:

3 "... that might be pursued."

4 As I understand it, what you then go on to do is to

5 explain in the next paragraph and following paragraphs

6 the things that you did as SIO to, as you put it,

7 consolidate the investigation?

8 A. That's right.

9 Q. Thank you. Now, can I take you back now to the, as it

10 were, beginning of the process, the beginning of the

11 investigation, one of the points that has come out in

12 the evidence of the Kent officers to the Inquiry about

13 the need for the investigators to keep an open mind as

14 they go about their work.

15 Was that a principle with which you were familiar

16 and which you tried to put into practice in your work on

17 this case?

18 A. Yes, I think it is something that I would have sought to

19 do in any investigation no matter what it is: keep an

20 open mind.

21 Q. And was it a theme that they stressed to you in talking

22 about the investigation in its early stages? This is

23 the Kent officers.

24 A. I wouldn't say it was a theme that was emphasised or

25 stressed; it was a theme that perhaps was mentioned.

57

1 Q. Mr Humphreys in his evidence told us that he felt the

2 need to keep an open mind was particularly important in

3 this case, given that the circumstances would

4 immediately lead to a particular hypothesis. Was that

5 a view which you shared at the time?

6 A. Yes. I don't remember having any in-depth conversations

7 with Mr Humphreys for long periods about this subject.

8 I was privy to some conversations. In the main,

9 Mr Kinkaid spent most of the time with Mr Humphreys,

10 whilst I was -- I had other things to do.

11 So I was never involved in any long deliberations

12 like this. But in terms of keeping an open mind, it is

13 something that -- it would be futile for a detective not

14 to do.

15 Q. Now, in the famous manual, about which we have heard

16 evidence, the murder investigation manual, which, as we

17 know, Mr Humphreys wrote, they use this term

18 "hypothesis". Just putting that on one side, whether or

19 not that was a term you would use or be familiar with,

20 can I ask you this: what systems did you have within the

21 investigation to make sure that theories, assumptions,

22 hypotheses were regularly questioned and tested during

23 the course of your work?

24 A. Well, what I would say is that I make a distinction from

25 hypothesis, as you say. Hypothesis is an assumption,

58

1 suggestion, or a non-substantiated theory. I would make

2 a difference between a hypothesis and a verifiable and

3 definite line of investigation. And I felt that on the

4 basis of the intelligence that we had, coupled with the

5 forensic evidence that we had, that we had a more clear

6 line of investigation. But nonetheless it was a clear

7 line of investigation that we had to challenge, we had

8 to ask questions about. The information at the outset

9 was scant and we had to obviously take care in our

10 approach.

11 Q. So far as discussing approaches, lines of enquiry, is

12 concerned, can I take it that the weekly meetings would

13 have been at least one forum in which discussions of

14 that kind would have taken place?

15 A. Yes, we had regular discussions within the senior

16 management team, both structured meetings and ad hoc

17 meetings, where we discussed these issues, discussed the

18 possibilities, discussed individuals that we had

19 intelligence on and where we could take that

20 intelligence and how we could expand on it.

21 Q. Can I ask you to look at a paragraph of your

22 statement -- it is only one of a number -- but where you

23 mention this. That's at RNI-842-242 (displayed). Does

24 that summarise the position on this; in other words,

25 that you were having regular dialogue, as you put it, on

59

1 various facets in the investigation:

2 "We constantly reviewed lines of enquiry, strategy

3 and actions in conversations that would not have been

4 documented."

5 A. Yes.

6 Q. Because that's the next point. Your evidence is full of

7 suggestions of that kind. Would it be fair to say that

8 the vast majority of conversations of that kind,

9 discussions of that kind, did not find their way into

10 written form?

11 A. I would have imagined that a lot of them perhaps found

12 themselves in written form in the minutes of meetings.

13 Q. Yes.

14 A. Maybe not so much in the policy book or particularly the

15 ordinary policy book. Some of them would have been

16 recorded in the secret policy book.

17 Q. Now, was that consistent with your experience of the way

18 murder investigations were run in Northern Ireland at

19 this time?

20 A. It was, yes.

21 Q. In other words, that compared to the amount of

22 discussion and consideration, the amount reduced to

23 writing was relatively small?

24 A. Yes, although I would say that when Mr Port and

25 Mr Provoost came, we probably wrote more than we would

60

1 have normally.

2 Q. That's why I asked you the question. So is this an

3 example of another way in which in fact this

4 investigation was rather unlike previous investigations

5 with which you had been involved?

6 A. That's right, that's one point, yes.

7 Q. Was more recorded in writing? Is that what you are

8 saying?

9 A. Yes, there is more recorded in writing than there

10 normally would have been in my experience.

11 Q. Was that one of the effects of the involvement at the

12 head of the investigation of these two officers from

13 outside Northern Ireland?

14 A. Yes, and also some guidance that we got from

15 Mr Humphreys, in particular, about secret policy books.

16 That was a new --

17 Q. That was another first for Northern Ireland, wasn't it?

18 A. Another first for us, yes.

19 Q. Now, so far as the matters that shaped your initial view

20 of the case is concerned, you mentioned intelligence.

21 Would it be fair to say that intelligence remained an

22 important element of this particular investigation?

23 A. It did, yes.

24 Q. But from the point when you received early intelligence

25 pointing to the involvement of what Mr Kinkaid and

61

1 I called the key suspects, I think, throughout the years

2 that followed, Operation George, et cetera, intelligence

3 remained an important part of your work?

4 A. In any investigation intelligence is vital. It didn't

5 solely drive our investigation. There were important

6 enquiries that had to be done on the ground, like any

7 other investigation -- house-to-house enquiries and the

8 raft of individuals that we would want to interview that

9 would frequent the area -- in order to get evidence, if

10 not intelligence.

11 Q. Now, so far as the general issue of how to deal with

12 intelligence is concerned, you say something about that

13 in paragraph 270 of your statement, at RNI-842-246

14 (displayed), where, under the heading "Conclusions" you

15 are talking, do you see, just before the bullet points

16 begin, about the principal lines of investigation. Do

17 you see that?

18 A. That's right, yes.

19 Q. Then on the next page we find "Intelligence", and you

20 say:

21 "Intelligence in itself is not sufficient to

22 prosecute an offender. However, once validated it

23 presents the MIT with a starting point from which a case

24 can be built and from which methods can be deployed to

25 put together an evidential case."

62

1 So you understood and appreciated, did you, from the

2 outset the importance of validating the intelligence

3 that you received?

4 A. Absolutely, yes.

5 Q. Because there were risks by the very nature of the sort

6 of material that is generated in intelligence-gathering,

7 weren't there, otherwise in proceeding on uncorroborated

8 information?

9 A. That's right, yes.

10 Q. Now, so far as the continuing importance of intelligence

11 is concerned, can you look, please, at the secret policy

12 file decision number 30, on 3 June 1999. That's at

13 RNI-909-172, I hope (displayed). Yes.

14 Here it is recorded by Mr Kinkaid, I think:

15 "The intelligence-gathering aspect of the

16 investigation now represents the most important line of

17 enquiry. This has been reflected in the distribution of

18 personnel and IT resources."

19 So from this point, two and a half months after the

20 murder, intelligence had become "the most important line

21 of enquiry" in the investigation; is that right?

22 A. I wouldn't have put it in as strong terms as that.

23 There were still other enquiries going on on the ground

24 and recorded certainly there as "the most important line

25 of enquiry". And it was an important line of inquiry.

63

1 But I would say there were other lines of enquiry going

2 on at the time that were still as important.

3 Q. Which were as important as this?

4 A. We were still trying to locate vehicles. We were

5 pursuing -- this was June 1999?

6 Q. Yes.

7 A. I don't even think house-to-house enquiries were totally

8 finished at that stage. We were after trying to

9 identify some individuals. There was a footmark in

10 a garden, there were some aspects that we still were

11 looking at and --

12 Q. Was any --

13 A. I would say it was a predominant line of enquiry, as

14 opposed to probably the most important line of enquiry

15 at that stage because the initial enquiries were

16 dropping off. But I think there were still a few

17 straggling taxi drivers that we were trying to get to.

18 We were trying to negotiate to see through the collusion

19 side of the investigation, there were some individuals

20 that Mr Port was seeking to engage or see. I'm thinking

21 about employees (redacted) who we felt might take us

22 forward in terms of what they saw that night.

23 So those are important lines of enquiry which, in my

24 view, might have been just as important as intelligence.

25 But in terms of trying to make progress, perhaps, yes,

64

1 intelligence may have been the most important.

2 Q. I mean, the situation by this stage, surely, was that

3 you hadn't got any key pieces of forensic evidence. You

4 hadn't got any eye-witnesses, and the decision was taken

5 that you would have to rely on intelligence, wasn't it,

6 in order to get your evidence for prosecution in

7 another way?

8 A. Well, we had no eye witnesses. There was still some

9 work being done on forensic at that stage and, yes, we

10 would still have to use -- certainly to try to develop

11 intelligence to make progress.

12 Q. And this came at about the time, or shortly before the

13 decision to embark on the proactive, undercover

14 operations which eventually became known as Operation

15 George, isn't it?

16 A. Yes. To some it was Operation George, and I think it is

17 widely known as Operation George, but it never was to

18 me.

19 Q. No. But this was all of piece, wasn't it? The decision

20 was taken that you needed to go out much more actively

21 and seek evidence in order to move the investigation

22 forward?

23 A. Yes, I think it was the introduction of the need for

24 proactive methods of intelligence.

25 Q. Yes. Now, just going back to the very early days of the

65

1 investigation, can I ask you about a comment you make in

2 paragraph 31 of your due diligence statement, at

3 RNI-842-173 (displayed) because there, in dealing with

4 your initial reactions on hearing of the explosion -- it

5 may not even by this stage have been known to you to be

6 a murder, a fatal attack -- you spoke, you say, to the

7 officer, the Special Branch officer, who became the

8 liaison officer, B567, and you say you did so for two

9 reasons:

10 "First to confirm he knew of the incident; secondly,

11 to ascertain if he knew of any indications that a crime

12 of this nature was anticipated. He had no knowledge of

13 any build-up to this attack. It appeared to have taken

14 Special Branch by surprise. Contacting my

15 Special Branch counterpart in this way was a formality

16 on my part."

17 Now, what do you mean, it was a formality on your

18 part?

19 A. Contacting my colleague?

20 Q. Yes.

21 A. Because we worked closely together. As I said earlier,

22 we were both heads of our respective departments within

23 the division, and to me it was a natural thing to do.

24 We talked quite often about various issues, what was

25 happening. There were many incidents in our division of

66

1 a terrorist nature, which I often talked to him about --

2 and on this occasion it was the murder of Mrs Nelson

3 where, to me, it was a natural thing to do.

4 Q. So you mean, when you say "formality", it was the

5 obvious thing for you to do?

6 A. Yes, one of the obvious things to do, yes. There were

7 other obvious things to do as well.

8 Q. Indeed. Just focusing for a moment on this one, were

9 you surprised that they had had no warning that a crime

10 of this nature was about to be committed?

11 A. I was disappointed but not surprised. I had been in the

12 same position before, where a murder had just came out

13 of the blue without prior intelligence, and

14 unfortunately that's the nature of the Northern Ireland

15 situation, particularly where Loyalist terrorists are

16 concerned, where just on a whim, in a moment, they can

17 go and murder someone.

18 Q. As the investigation proceeded over the next days, weeks

19 and months, did it become clear to you that this could

20 not have been an attack on a whim?

21 A. Yes, as the intelligence developed, there obviously had

22 to be a degree of planning, which obviously hadn't come

23 to the attention of Special Branch.

24 Q. And did that surprise you?

25 A. I would say in some extent that did surprise me.

67

1 Q. Because, as you say, the very nature of this attack, the

2 way it must have been planned and then executed,

3 suggests that a number of people were likely to have

4 been (a) involved, and (b) to have known about it?

5 A. That's correct, yes.

6 Q. And presumably, as soon as you widen the circle of

7 knowledge of the impending attack and you have an

8 element of advanced preparation, advanced planning, it

9 makes it more likely that intelligence about it will

10 seep out?

11 A. It makes it certainly possible. Whether more likely is

12 the right description is another thing.

13 Q. To what extent was your surprise about the absence of

14 warning also influenced by the very nature of the

15 attack, namely that it was an attack that was obviously

16 going to have substantial repercussions and, indeed,

17 a political impact?

18 A. Sir, could you just repeat the question, please?

19 Q. If you imagine the situation of anybody planning an

20 attack on Rosemary Nelson --

21 A. Yes.

22 Q. -- they would have been well aware, would they not, that

23 such an attack would have drawn to it an enormous amount

24 of media and political attention?

25 A. That's correct, yes.

68

1 Q. Because of the person she was and the profile that she

2 had in the community?

3 A. That's right.

4 Q. Now, that no doubt had an impact on the planning and

5 preparation of those who were responsible because they

6 realised they were about to undertake something with

7 potentially massive political and other repercussions?

8 A. Certainly they could have. Once they decided on their

9 target, they just made their plans.

10 Q. What I was trying to ask you is did the very nature of

11 this offence, this attack, with the obvious consequences

12 that would follow, make it the more surprising that

13 there was no advanced warning in intelligence terms

14 about it at all?

15 A. I wouldn't absolutely agree with that. I would say,

16 because they knew the target and if they had anticipated

17 the outcome, bearing in mind that the majority of

18 Loyalist terrorist groups were on ceasefire, they would

19 have certainly taken precaution to make sure the

20 narrowest possible -- or the narrowest possible level of

21 knowledge, in the sense that they wouldn't have wanted

22 to be detected because it could have ramifications not

23 only from the Republican side, but also from the

24 Loyalist side.

25 Q. And how clear are you in your own mind that from the

69

1 early days of the investigation, after this conversation

2 that you describe with B567, he was in no doubt that if

3 there was intelligence which might have amounted to

4 advanced warning or an advanced indication that this

5 attack was going to take place, that that sort of

6 intelligence was exactly the sort of intelligence which

7 you and your colleagues in the investigation would want

8 to see?

9 A. Sorry, I'm not just sure where you are going with the

10 questions.

11 Q. Are you sure in your own mind that B567 was aware that

12 any intelligence that indicated advanced notice, any

13 sort of advanced information about this attack was the

14 sort of intelligence that you and your colleagues wanted

15 to see?

16 A. Yes, we would have.

17 Q. You would have been in no doubt about that?

18 A. We certainly wanted any intelligence at all.

19 Q. Sorry?

20 A. We would have wanted any intelligence to the build-up of

21 this attack.

22 Q. Yes. Now, can we look, please, at two briefing sheets

23 which you received very early on in the investigation?

24 The first is at RNI-909-006 (displayed).

25 Now, this was a heavily redacted document when

70

1 I looked at it with Mr Kinkaid. I think I'm right in

2 saying it is now an even more heavily redacted document,

3 but it is briefing form 28/99 and it pointed, didn't it,

4 to the involvement of two of the key suspects in the

5 murder?

6 A. That's correct.

7 Q. And then secondly, RNI-909-078 (displayed), briefing

8 sheet -- again, it was heavily redacted; it is now even

9 more heavily redacted. This identified a named

10 individual, didn't it, as being someone who had

11 constructed and supplied the device which was used in

12 the murder of Rosemary Nelson?

13 A. That's correct, yes.

14 Q. And is it right to say that the individuals identified

15 in those early briefing sheets remained key or core

16 suspects throughout the course of the murder

17 investigation?

18 A. That's correct, yes.

19 Q. Now, from what you have told us earlier, this is the

20 form, albeit without any redaction, that you would have

21 received the intelligence in, is it not?

22 A. That's correct, yes.

23 Q. And it gives no evaluation, or no useful evaluation as

24 to the quality of the intelligence, does it?

25 A. No, it doesn't.

71

1 Q. Now, were you given any other indication as to the

2 quality of the intelligence by any other means?

3 A. As I understood it, Mr Port sought to verify or validate

4 the intelligence with the Special Branch, with B629 and

5 B567, and I understand that he had understood, or he

6 obtained a background of the intelligence that was

7 received.

8 Q. Yes. Did you have a discussion about these briefing

9 sheets with B567?

10 A. Yes, I have a recollection of speaking to him.

11 Q. Can I ask you, was any particular level of confidence in

12 this intelligence expressed to you by B567?

13 A. There was a level of confidence expressed to me, yes.

14 Q. Sir Ronnie Flanagan, when he gave evidence to the

15 Inquiry, said that he had been given the impression by

16 the then Head of Special Branch -- so B567's boss, if I

17 can put it that way -- that they were very confident and

18 had passed the details to Mr Port of those involved in

19 the murder.

20 Was that sort of impression -- albeit at your level,

21 not at that level -- was that sort of impression given

22 to you by B567?

23 A. Yes, there was a degree of confidence expressed.

24 Although in fairness, I feel that both I and he would

25 have liked more.

72

1 Q. More confidence, more information?

2 A. More intelligence.

3 Q. Yes. Now, again, being careful and remembering that we

4 are in an open hearing, what can you tell us about what

5 you managed to glean beyond what is set out in these

6 briefing sheets from B567?

7 A. I believe I gleaned the circumstances (redacted)

8 (redacted)

9 (redacted)

10 (redacted), which I can deal with in the closed hearing.

11 Q. Yes.

12 A. (Redacted)

13 (redacted).

14 Q. Yes. Now, so far as the question of validation is

15 concerned -- because that's essentially what we are

16 talking about here -- you have used that term in

17 relation to Mr Port's work -- can I ask to you look,

18 please, at paragraph 41 of your third statement,

19 RNI-842-290 (displayed) because here -- and, again, it

20 is very heavily redacted -- I think what you are telling

21 us about here is what you did in relation to these

22 particular pieces of intelligence in order to find out

23 more and, if I can put it that way, get more information

24 together about them. Is that a fair summary of what you

25 are saying in that paragraph?

73

1 A. Yes, that's right, yes.

2 Q. So, putting Mr Port and what he was doing on one side

3 and, again, taking as read what you have told us about

4 conversation you had with B567, what were the ways in

5 which the team, the Murder Investigation Team, went

6 about this process of validation?

7 A. Yes, well, we -- from recollection, Mr Kinkaid submitted

8 a series of questions through B567 to Headquarters

9 Special Branch. Apart from that, we also set about

10 ourselves to conduct telephone analysis to see if there

11 were contact between these three individuals, and we

12 established that that was the case.

13 Q. That's what you are referring to there? We can just

14 about make it out in the redacted part.

15 A. Yes.

16 Q. Yes.

17 A. And then we also tried to see if there were any

18 sightings from normal police officers of the three

19 together.

20 Q. Yes. And just picking up the final point you make here,

21 as I understand it, what you are saying there is that as

22 you pursued the enquiries into these core suspects, you

23 didn't get the impression from Special Branch that you

24 were, as it were, barking up the wrong tree?

25 A. No, I didn't get that impression.

74

1 Q. And did that hold good throughout your time working on

2 the investigation?

3 A. Yes, it did hold good. Apart from this information, we

4 had independent information that came in (redacted)

5 (redacted) that verified in some ways what Special Branch

6 had given us. And then, as well as that, I pursued the

7 forensic line in terms of the bomb maker to see if this

8 person could make this type of device, had he made that

9 type of device before, and tried to obtain intelligence

10 on this individual. And in the course of the

11 investigation, we did establish -- and I think it is

12 somewhere in one of my statements -- that from (redacted)

13 separate sources we obtained information that this

14 person had made the device which murdered Mrs Nelson.

15 Q. But this is information from (redacted) sources pointing to

16 the same bomb maker?

17 A. Yes.

18 Q. Am I right in thinking that there were in, I think, the

19 early stages, suggestions that other named individuals

20 had been responsible for making the device?

21 A. That's correct. There was -- apart from these three

22 individuals, we got other intelligence, some from

23 Special Branch, some from CID --

24 Q. Yes.

25 A. -- to name other persons that may have been involved in

75

1 the murder.

2 Q. Yes.

3 A. And I must say that we pursued each of those

4 investigations in the same vigorous way we pursued these

5 three.

6 Q. But can I just ask you specifically in relation to the

7 role of bomb maker, if I can put it that way: as I

8 understand it, what you are saying in your statement --

9 as you say there is a good deal about this in your

10 statement because you were responsible for the forensic

11 side -- is although there were other indications

12 initially pointing to other possible bomb makers, as far

13 as you were concerned, the weight of the intelligence

14 pointed towards the individual who is referred to in

15 this paragraph?

16 A. That's correct, yes.

17 Q. Can I ask you, please, to look in your due diligence

18 statement to paragraph 248, and that's at page

19 RNI-842-240 (displayed)?

20 You will see from the beginning of this paragraph,

21 as it is on the screen, that you are dealing with the

22 way Rosemary Nelson was seen in the Loyalist

23 community -- and we will come back to that in a minute.

24 But the sentence that I'm interested in at the moment

25 from the point of view of intelligence is the last

76

1 sentence:

2 "Despite having this background knowledge of

3 pointers towards the LVF, we did not place any weight on

4 this possibility ..."

5 That's the possibility of the LVF being responsible,

6 I assume:

7 "... until we were in receipt of firm intelligence

8 which pointed very clearly to the LVF."

9 Now, what I want to ask you about in relation to

10 that last comment, again, bearing in mind the open

11 hearing which we are in at the moment, is what was the

12 firm intelligence that pointed very clearly to the LVF?

13 A. Well, the firmest part of the intelligence was the

14 intelligence relating to the bomb maker and also --

15 which was, apart from being supported by other

16 intelligence from, as I said, (redacted) different sources,

17 the forensic evidence which supported the view that the

18 person who made previous devices could also have made

19 Mrs Nelson's device, and the bomb maker that we had

20 identified or who we had intelligence on who had

21 apparently made the bomb that killed Mrs Nelson had made

22 other devices, we had intelligence on that. And in

23 a sense the way that it was put together was similar.

24 Q. And are you saying, therefore, that that same material,

25 that same intelligence, pointed not just, given the way

77

1 you put it there, to this individual but also

2 specifically to the LVF?

3 A. Yes.

4 Q. Okay.

5 A. This individual was a member of the LVF.

6 Q. Yes, thank you. Now, so far as the other two

7 individuals named in that first briefing sheet we looked

8 at together, am I right in saying that in terms of the

9 further intelligence that came in, there was only one

10 further item of intelligence in respect of one of them

11 linking him to the murder? Is that correct?

12 A. That's correct, yes. There was other intelligence to

13 say that they had visited the scene of the murder after

14 the event had taken place.

15 Q. Yes, but in terms of a specific link being made, there

16 was just that one further piece of intelligence?

17 A. That's correct, yes.

18 Q. Did that not at any stage strike you as being a rather

19 slender intelligence case against those two individuals?

20 A. It may be considered slender but it still was, in our

21 view, an important piece of intelligence. Sometimes

22 just because you have a slender piece of intelligence

23 doesn't mean that it isn't right.

24 Q. Is it possible for you in this open hearing to explain

25 why it was that you felt confident to, as it were,

78

1 pursue that particular line of enquiry, the line of

2 enquiry that led to those two individuals, despite the

3 fact that there was just the one piece of intelligence

4 with them both in and another single piece with just one

5 of them?

6 A. Sorry, can you repeat the question again?

7 Q. I'm trying to keep us safe in the open hearing --

8 A. If you remember it.

9 Q. Yes. Beyond the answer you have already given --

10 obviously I don't want you to repeat yourself -- what

11 can you say in the open hearing to explain why it was

12 that you felt confident about your line of enquiry in

13 relation to these two individuals, despite the very

14 limited amount of intelligence linking them with the

15 crime?

16 A. Well, we were confident from the intelligence that the

17 LVF had played a major part, and the two individuals

18 that we were referring to played a key role in this area

19 in the leadership of the organisation, and who would

20 have been involved in the planning of it and would have

21 most likely taken the direct order from the officer in

22 command of that organisation, that carried out the

23 attack.

24 Q. But would it be fair to say that, given the relatively

25 small amount of intelligence pointing in that direction,

79

1 this issue, which we touched on earlier, of validation

2 was the more important because you needed as much other

3 bolstering of the rather slender intelligence case as

4 you could find?

5 A. Yes, we had other intelligence to some extent which we

6 acquired ourselves; a (redacted) conversation captured

7 under the criminal law, where one of the individuals

8 had -- one of the individuals named discussed getting

9 assistance from the bomb maker. And that (redacted)

10 (redacted)

11 (redacted)

12 (redacted).

13 Now, that was -- it is not obviously conclusive

14 exactly because it was a cryptic conversation between

15 the two of them, but it is also another piece of slender

16 intelligence that we could put alongside another slender

17 piece of intelligence, which makes it less slender.

18 Q. So you are building up a jigsaw of quite small pieces?

19 A. That's correct, yes.

20 Q. In relation to that piece you have just mentioned,

21 presumably if you were wrong about the identity of the

22 bomb maker, that would have completely fallen away?

23 A. That could have fallen away, yes.

24 Q. Because that conversation, which you have just mentioned

25 (redacted), in fact would have been

80

1 of no significance?

2 A. That's right, yes.

3 Q. Just looking, if we may, at how this developed to get

4 some comments from you on that, can we look, please, at

5 RNI-914-348 (displayed). I think that may be something

6 you have already referred to. It is a note of a meeting

7 which it looks as though you were not present at, but it

8 is, as I understand it from Mr Kinkaid's evidence,

9 a meeting in which he sought to validate, to get behind

10 the limited amount of intelligence material that you had

11 received at this stage early on in the investigation.

12 Is that correct?

13 A. That's correct, yes.

14 Q. Now, so far as the next page is concerned, we can see

15 the questions and requests there, RNI-914-349

16 (displayed). Were you responsible with Mr Kinkaid for

17 putting together these questions and requests?

18 A. From recollection I was. We done them together.

19 Q. So you are working together on this even if you didn't

20 attend the meeting?

21 A. That's correct, yes.

22 Q. Thank you. And we see the responses on the next pages,

23 at RNI-914-352 (displayed).

24 Can I just ask you about a specific request here and

25 the specific answer because we will touch on it later?

81

1 Can I ask you to go back to RNI-914-349 (displayed)?

2 Here under "Requests", 1 -- and I am afraid it has been,

3 again, very substantially redacted, but it is a request

4 for surveillance, is it not. If not already done,

5 please consider:

6 "1. Surveillance on ..."

7 Then there is the names of the (redacted) suspects.

8 That's correct, isn't it?

9 A. That's correct, yes.

10 Q. And key associates. And the answer came back at

11 RNI-914-352 (displayed), number 1 at the top of the

12 page:

13 "1. Surveillance is ongoing in accordance with

14 future requirements."

15 Were you made aware of that answer?

16 A. I may have been. I just can't recollect.

17 Q. But what did you understand Special Branch to be saying?

18 A. Reading it now it is fairly ambiguous.

19 Q. Indeed. Did you --

20 A. Sorry, what page is that from?

21 Q. Sorry, this is the answer to the requests which we saw

22 at the bottom of RNI-914-349. This is at RNI-914-352 at

23 the top. Do you see that?

24 A. Yes.

25 Q. I suppose the question more directly is this: were you

82

1 aware that the core suspects were the subject of a

2 surveillance operation going on at the time of the

3 murder?

4 A. No, I wasn't.

5 Q. No.

6 A. Around the same time I submitted the document -- it may

7 not be here, but specific documents on each of these

8 suspects and other individuals that we had a keen

9 interest in for surveillance as well.

10 Q. Yes. And again, so far as the responses that came back

11 to those requests of yours are concerned, was there

12 anything in them that made you aware that they were

13 already under surveillance by Special Branch?

14 A. No, there was nothing that came back. Although just

15 from my general knowledge, I knew that from time to time

16 they did do surveillance.

17 Q. Well, that's the next point, isn't it? I mean,

18 presumably it didn't come as a huge surprise to you to

19 learn that those individuals were under surveillance?

20 A. It came as a huge surprise when I learned of Op Shubr

21 recently.

22 Q. Why do you say that, please?

23 A. Simply because the detail within Op Shubr would have

24 been useful to us at the time.

25 Q. And what impact did the fact that you didn't get

83

1 informed about it have on the investigation?

2 A. It is hard to assess that. I would really need to go

3 through each document and read it and explain how it

4 would have assisted. But certainly, when you are

5 looking at the build-up to an attack, even the previous

6 month you are trying to see why are these people in the

7 vicinity, who they are associating with, you know, is

8 there a possibility that we could maybe advance our

9 enquiries through somebody else that they are

10 associating with, to get more information. So it would

11 certainly be very useful to us to know that.

12 Q. Would it have opened up certain investigative

13 possibilities?

14 A. It certainly could, yes.

15 Q. Standing back from the matter now, though, and having

16 the opportunity, as you have, to look back at the whole

17 of the course of the investigation, do you think it

18 actually made any difference?

19 A. It is hard to say. We certainly would have made

20 a constructive effort to develop what we had. Having

21 had a cursory read over what I saw, it may not have

22 made -- taken us much further, but it is hard to say now

23 at this stage.

24 Q. Now, you deal with this specifically, this question of

25 Operation Shubr, in your third statement, paragraphs 21

84

1 to 23 and that's RNI-842-281 (displayed). As you say

2 there in paragraph 21:

3 "I did not know about this until relatively

4 recently."

5 Now, you have already helpfully set out the ways in

6 which it might have made a difference. Can I ask you

7 about what you say in paragraph 22, which we also have

8 on the screen? I mean, in essence, there you are

9 speculating, aren't you, about the reasons that

10 Special Branch may have had for not telling you?

11 A. That's correct, yes.

12 Q. You don't know one way or the other?

13 A. I don't know, I can't answer that.

14 Q. But why is it that you suggest that the fact that the

15 operation was ongoing -- what is it about that fact that

16 might have, in your view, led them to decide not to tell

17 you?

18 A. Simply because we were bursting into, in a sense, a live

19 theatre. And bearing in mind intelligence which we

20 didn't get in relation to, I think, the events that are

21 planned for the 29th of that month, it may have been --

22 certainly at that early stage, we could have in some way

23 restricted the pursuance of that operation.

24 Q. Are you there talking about the intelligence that you

25 have now seen (redacted)

85

1 (redacted)?

2 A. Yes.

3 Q. Yes. What do you draw from the fact that, despite the

4 fact that the individuals were apparently under

5 surveillance, there was nothing observed which

6 apparently gave any indication of (redacted)

7 (redacted) the actual attack on

8 Rosemary Nelson?

9 A. Nothing -- it was an intermittent thing. So, therefore,

10 it is difficult to say.

11 Q. But if you had been told about it and learned that there

12 was no such indication, wouldn't that have been

13 a relevant point for you to consider?

14 A. It could have been related, yes.

15 Q. It might conceivably have pointed away from the core

16 suspects, for example?

17 A. In some ways, but we had other intelligence that perhaps

18 the groundwork for the murder of Mrs Nelson was done by

19 someone else from outside.

20 Q. Now, so far as the question of validation and the

21 investigation as it moved on is concerned, and taking

22 Mr Kinkaid's departure as the next point, I want to look

23 at -- in other words, the summer of the following year,

24 (redacted)

25 (redacted)

86

1 least as Operation George, had been going on for about

2 a year or more; is that correct?

3 A. That's correct, yes.

4 Q. And as at that point, there had been no admission, if I

5 could put it that way, and nothing of direct evidential

6 value linking the core suspects to this offence, to the

7 Rosemary Nelson murder. That's correct also, isn't it?

8 A. There had been no clear admissions. There had been

9 snippets that you could interpret of knowledge.

10 Q. Yes, but did you not consider as at that point, in the

11 summer of 2000, that it was time to step back from the

12 intelligence that you had received, the hypothesis that

13 had involved these key suspects, and review the way the

14 whole focus of the investigation was on those

15 individuals?

16 A. Well, I think the review was a constant thing that took

17 place if not every week, certainly every month at the

18 intelligence coordinating meeting, which Mr Port -- he

19 constantly kept it under review because it was very

20 manpower intensive, very costly and it was something we

21 constantly kept under review: where we were going, what

22 direction were we going with this and the possible

23 likely outcome.

24 I think by the summer of 2000, really we were only

25 properly getting placed to get a broad picture from the

87

1 various sources that we had in place, so I would say

2 probably by certainly the summer of 2000 we were only

3 really up and running properly.

4 Q. So what about at an earlier stage? Can I take it from

5 that answer that you don't accept that before the

6 Operation George work began -- so that's the summer of

7 the previous year -- there should have been a thorough

8 validation and review of the existing intelligence

9 picture?

10 A. Well, what I'm saying there is that the validation was

11 an ongoing thing, certainly with Mr Port, and in his

12 contacts with Special Branch, his contacts with other

13 people and also within our own investigation, it was

14 constantly reviewed, where we were going, what the

15 outcome -- what we had, at every stage.

16 Q. And so what do you make of the suggestion made in the

17 Ayling Report that the validation process for this early

18 intelligence didn't really take place in a fundamental

19 way until your review, the review you and I discussed

20 a little earlier, which started, I think, in late 2003?

21 A. I think probably the validation that we did was more

22 comprehensive because it took in more individuals than

23 just the core individuals. But certainly in terms of

24 the core people that we were looking at, I'm certainly

25 satisfied from Mr Port's efforts that he was seeking to

88

1 validate the intelligence from the moment he arrived and

2 to get any more intelligence that he could get from

3 Special Branch. And obviously I wasn't privy to all of

4 the meetings that he had with Special Branch through to

5 the ACC, but I know that he was anxious to validate and

6 ensure that we were on the right path all the time.

7 MR PHILLIPS: Now, can I just move on to another topic,

8 which is victimology?

9 DAME VALERIE STRACHAN: Sorry, before you do that, you have

10 referred several times to seeking to validate the

11 intelligence and seeking to ensure that you were on the

12 right path. Can you recall any occasion when you or

13 other members of the team sat back and said, "Is it

14 possible that we are on completely the wrong path?"

15 A. I don't think we actually sat down and had that type of

16 conversation, but Mr Port would have said, you know,

17 "Where exactly are we at? What have we got?" And we

18 would have looked at what we had, not only in respect of

19 these core individuals, but there were a number of other

20 people that were coming into the fringe of things and he

21 would have been eager to say, "Can we develop this from

22 another angle? Is there somebody else we should be

23 looking at?" And we took steps to check out other means

24 of intelligence that was available to us through

25 Special Branch.

89

1 DAME VALERIE STRACHAN: Right. But at no point did you say,

2 "Can we just go back completely to the beginning and

3 review our basic understanding of what was going on?"

4 A. No, I don't think we did. There wasn't a stage where we

5 actually done that. As I say, it was an ongoing thing

6 which we'd done from the Day 1, but we didn't stop at

7 three months in and say, "Let's review everything that

8 we have done" because there was a constant review.

9 DAME VALERIE STRACHAN: I see.

10 MR PHILLIPS: Moving, then, to victimology and the question

11 of investigating Rosemary Nelson herself, her

12 background, her associates and contacts, et cetera, can

13 I ask you this: did you consider in the early stages of

14 the investigation whether or not Rosemary Nelson herself

15 was a person of interest to Special Branch?

16 A. We didn't -- I didn't consider that to be the case.

17 Q. Did you make any perhaps informal enquiries in respect

18 of that with Special Branch officers?

19 A. I'm aware that Mr Port did, yes.

20 Q. Now, given the prominence of allegations of collusion --

21 A. Yes.

22 Q. -- in relation to the murder, didn't you think it

23 important to investigate how Rosemary Nelson was

24 regarded by the security forces?

25 A. Certainly that would have been an element for

90

1 Mr Provoost, as Head of the Collusion Cell, to pursue.

2 Q. So are you saying you didn't have direct responsibility

3 for that?

4 A. It wasn't my responsibility, but certainly I would have

5 been interested if there was something negative there.

6 Q. Why were you not interested in any item of intelligence

7 in relation to Rosemary Nelson in the sense that

8 anything would have helped to build up a picture about

9 her for you?

10 A. I think we had a fairly good picture of who

11 Rosemary Nelson was, her role in the community at that

12 time and the likelihood of why she was targeted and the

13 motive for those targeting her.

14 Q. So would it be fair to say that you didn't feel that you

15 needed any more information on those matters?

16 A. In terms of her as a target for Loyalists, no.

17 Q. Now, so far as this line of enquiry is concerned or this

18 aspect of the investigation, to use a more neutral term,

19 who was responsible for directing it in the initial

20 stages?

21 A. In terms of directing what?

22 Q. The investigation of what's now referred to as

23 "victimology"?

24 A. It started with the SIO at the start.

25 Q. Yes. Did that continue to be the case during

91

1 Mr Kinkaid's time on the investigation?

2 A. That's right, yes.

3 Q. Now, in your statement you deal with some items of

4 intelligence which were not passed to the Murder

5 Investigation Team, items that, as I understand it, you

6 have become aware of during the course of the Inquiry.

7 Is that right?

8 A. Yes, that's right.

9 Q. Can I look first with you at just one or two items where

10 you say that you weren't aware of them but, in your

11 view, they were not of note, if I can put it that way,

12 so far as the investigation is concerned.

13 Now, what you do very helpfully in your third

14 statement is to produce a table for us at paragraph 34,

15 RNI-842-285 (displayed), which contains -- although it

16 is redacted, of course -- a summary of the relevant item

17 and your comments about it on the right-hand side.

18 Now, just to take the second -- and I hope we will

19 be able to deal with this without going to the document,

20 but the reference there is to a source report of, I

21 think, June 1998, (redacted)

22 (redacted)

23 Rosemary Nelson. And what you say is:

24 "In the absence of any other evidence or

25 intelligence, the information would not have taken us

92

1 anywhere."

2 Can you just elaborate on that for our benefit,

3 please?

4 A. Sorry, which number is that?

5 Q. It is the second one on your list, do you see?

6 Paragraph 34. We have it on the screen. It is the

7 right-hand box where you make a comment about it. Would

8 it help to see the report?

9 A. No, I recall it in any case, that piece of intelligence,

10 without reading it.

11 Q. Why is it that you offer that comment, that it wouldn't

12 have taken you anywhere?

13 A. Certainly, we had no intelligence at that stage that

14 Colin Duffy played any part in Mrs Nelson's murder and

15 had we got even a scintilla of information to that

16 effect, we certainly would have wanted to pursue it.

17 But -- and, therefore, that would have been of interest

18 if that had been the case, but because it wasn't the

19 case, a marital domestic situation wasn't of interest to

20 us.

21 Q. Surely the point about this allegation, about an

22 extramarital affair, was that it raised questions, or at

23 least possibilities, in relation to motive quite apart

24 from Mr Duffy himself?

25 A. If you are suggesting that we could have developed the

93

1 motive that Colin Duffy killed Mrs Nelson in these

2 circumstances, I would say it is highly unlikely.

3 If it was a case that perhaps Mrs Duffy or

4 Mrs Nelson was found in a quiet country road outside

5 Lurgan with a shotgun blast to her head, then perhaps

6 that would have been very relevant or, indeed, if she

7 had been strangled it would have been what we considered

8 an ordinary type murder. But it was clear in all

9 respects that this was a terrorist attack, and in those

10 circumstances certainly whilst there had been knowledge

11 in my mind of this allegation of a proposed affair, I

12 didn't consider Colin Duffy to be in any way responsible

13 for her murder.

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

15 THE CHAIRMAN: Yes. We will have another quarter of an hour

16 break.

17 Before the witness leaves, can the video engineer

18 please confirm that all the cameras have been

19 switched off?

20 THE VIDEO ENGINEER: Yes, they have.

21 THE CHAIRMAN: Thank you.

22 Please escort the witness out.

23 Just after 20 past.

24 (4.05 pm)

25 (Short break)

94

1 (4.25 pm)

2 THE CHAIRMAN: Checklist. Is the public area screen fully

3 in place, locked and the key secured?

4 MR CURRANS: Yes, sir.

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

6 screen closed?

7 MR CURRANS: Yes, sir.

8 THE CHAIRMAN: Are the technical support screens in place

9 and securely fastened?

10 MR CURRANS: Yes, sir.

11 THE CHAIRMAN: Is anyone other than Inquiry personnel and

12 Participants' legal representatives seated in the body

13 of this chamber?

14 MR CURRANS: No, sir.

15 THE CHAIRMAN: Thank you.

16 Can the video engineer please confirm that the two

17 witness cameras have been switched off and shrouded?

18 THE VIDEO ENGINEER: Yes, they have.

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

20 THE VIDEO ENGINEER: Yes, they have.

21 THE CHAIRMAN: Thank you.

22 Please bring the witness in. Do sit down.

23 The cameras on the Panel, Inquiry personnel and the

24 Full Participants' legal representatives may now be

25 switched back on.

95

1 Yes, Mr Phillips.

2 MR PHILLIPS: Can we have back on the screen RNI-842-285,

3 please (displayed).

4 Here, we were looking at the first of your lists in

5 your third statement and we had taken as an example

6 number 2, in terms of your list of intelligence, and you

7 had been explaining to us helpfully why it was that you

8 don't regard this as something that was relevant really

9 to the investigation.

10 A. Sorry, could I stop you there? Perhaps the usher could

11 get my glasses. I have left them behind.

12 Q. Not at all. Could I just carry on with the questions?

13 A. Absolutely, yes.

14 Q. I don't know how much you can remember of this part of

15 your statement, but it is right, isn't it, that there

16 are a number of other pieces of intelligence that you

17 were shown on the same sort of theme, i.e. about

18 Colin Duffy and his domestic situation, where your

19 response -- again, I'm summarising -- broadly speaking

20 is, "Well, that's interesting but it wouldn't have

21 assisted us"?

22 A. That's correct, yes.

23 Q. Can I just focus on one of them finally to check your

24 view on that. This is a report that begins at

25 RNI-548-387 (displayed). It is dated April 1999 and the

96

1 substance is at RNI-548-388 (displayed). Again, it is

2 redacted in important ways, but it suggests there that

3 Rosemary Nelson was confiding in someone:

4 "... shortly before her death that Colin Duffy

5 murdered Kevin Conway on 18 February 1998."

6 Then later:

7 "Duffy would have fully informed Rosemary Nelson of

8 all PIRA activities in Lurgan over recent years."

9 What you say about that, if we could have on the

10 screen, please, RNI-842-286 (displayed), is that you

11 would have liked to see it as the SIO of the Conway

12 murder, which obviously was another of your

13 investigations from about a year before?

14 A. That's correct, yes.

15 Q. But so far as this investigation is concerned, as I

16 understand it, you are saying that this was of no

17 relevance to the Rosemary Nelson murder investigation;

18 is that correct?

19 A. That's correct. If Colin Duffy was a firm suspect, or

20 a suspect of any description, it would have been of

21 significant interest, but he wasn't a suspect and there

22 was no intelligence to say that he was in any way

23 involved in the murder.

24 Q. Didn't this piece of intelligence have at least

25 a conceivable bearing on Rosemary Nelson's own position?

97

1 Didn't it suggest that she might have been vulnerable?

2 A. It told me that both Colin Duffy and Rosemary Nelson

3 would have been vulnerable.

4 Q. Yes. Wasn't that -- sorry, I interrupted you.

5 A. Yes. Had the Provisional IRA known of this

6 intelligence, I would suspect that Colin Duffy could

7 have had serious difficulties, and in terms of what you

8 are saying, yes, you could interpret that as that. And

9 if I was on a training exercise at Bramshill, as I have

10 been in the past, I would have said, yes, I would taken

11 this into interest, but certainly not in this line of

12 investigation. There was no reason to pursue that

13 angle.

14 Q. But surely anything that helped you to understand what

15 might have put her in danger, from whatever source, was

16 of relevance to you?

17 A. It was, yes.

18 Q. If you were keeping an open mind?

19 A. And I was keeping an open mind, as the rest of the team

20 were.

21 SIR ANTHONY BURDEN: Can I just come in there, Mr Phillips?

22 MR PHILLIPS: Yes.

23 SIR ANTHONY BURDEN: Can you just explain to us, please,

24 what you feel PIRA's response would have been to the

25 fact that this sort of loose talk was going on and that

98

1 there was a solicitor who allegedly had been told by

2 a PIRA activist of PIRA's activities over the past two

3 years or so? Would that have not made her vulnerable in

4 your view?

5 A. Sir, I would say that in terms of Colin Duffy, it was

6 a serious breach for him as a member of the Provisional

7 IRA to have had that conversation.

8 SIR ANTHONY BURDEN: Yes.

9 A. And from their point of view, I would assess that

10 Colin Duffy would have been the target for murder, not

11 Rosemary Nelson.

12 SIR ANTHONY BURDEN: So the fact that she was now armed with

13 all this information would not have been a significant

14 factor, do you think, in allowing her to continue to

15 live?

16 A. No, I certainly do not believe the Provisional IRA would

17 have assassinated her on that account.

18 SIR ANTHONY BURDEN: Okay.

19 MR PHILLIPS: Isn't there an even simpler way of approaching

20 this? Shouldn't you properly have been interested to

21 see all Special Branch intelligence that referred to her

22 in this way by name?

23 A. I do know now that there is a considerable amount of

24 that because I have looked at all of the documents.

25 Q. Yes.

99

1 A. And perhaps something like this may have been of

2 interest, just to set it aside in the absence of other

3 intelligence. But I don't think it had any significant

4 impact on our investigation.

5 Q. But to take us back to the way this part of our

6 discussion began, wouldn't it have been sensible to say

7 to Special Branch at an early stage, "Please give us

8 details of all intelligence in relation to her whether

9 generated before or in the aftermath of the murder"?

10 A. As I understand it, Mr Port asked if there was an

11 intelligence file on Rosemary Nelson and he was

12 categorically told there wasn't. Therefore, we could

13 take the matter no further. We didn't know what was

14 there.

15 Q. So in other words, what you are saying, as I understand

16 it, in the light of that assurance given to your boss,

17 to Mr Port, you took the view, did you, that there

18 wasn't any Special Branch intelligence on

19 Rosemary Nelson?

20 A. That's correct.

21 Q. And now you know that that was wrong?

22 A. I know that that was wrong.

23 Q. Should you not have been told in terms that there was

24 a file on her and there was intelligence on her?

25 A. If there was a file, we should have been told, yes.

100

1 Q. And presumably if there was intelligence, as we know

2 there was, you should also have been told?

3 A. Yes.

4 Q. Because then at least you could have said to yourselves,

5 "Right, we have been told there is intelligence. Let us

6 set some task, some parameters, for the sort of

7 intelligence on Rosemary Nelson that we would like to

8 see"?

9 A. I don't think it would have used as many words. We

10 would have said, "Can we see the file, please?"

11 Q. Assuming they had told you there isn't a file --

12 A. Yes.

13 Q. -- would you have immediately assumed that there wasn't

14 any intelligence at all?

15 A. Yes.

16 Q. Right. Now, can I seek to put this in some further

17 context by taking you to a passage of your first

18 statement, paragraph 246, because there you say at

19 RNI-842-238 (displayed):

20 "At the time of the murder, I was aware of a rumour

21 that Colin Duffy, who was widely believed to be a senior

22 member of the North Armagh PIRA, was having an

23 extramarital relationship with Mrs Nelson."

24 So are you able to help us, please: when before the

25 murder did you first hear of the rumour?

101

1 A. That's certainly difficult for me to answer that. It

2 was at some stage before and it was something that I

3 didn't really take that much under my notice.

4 Q. Again, doing the best you can -- of course, it is a very

5 long time ago -- but weeks, months, years before the

6 murder?

7 A. I would say it was more to be in the previous 12 months.

8 Q. Yes.

9 A. Maybe two years.

10 Q. Can you remember now where you heard it, the rumour?

11 A. I can't. I know that it was something that was general

12 knowledge. I know that it was in the newspaper. I

13 think one of the Sunday newspapers done an article on

14 it, something about Casanova.

15 Q. That came in February 1999, so very shortly before the

16 murder. We know that, the Inquiry has seen the article.

17 It sounds as though you heard of the rumour before that?

18 A. I sense I heard of it before that, yes.

19 Q. When you say it was known in the community, do you mean

20 it was generally known amongst other police officers?

21 A. I wouldn't say generally known amongst other police

22 officers. I honestly can't say where I picked it up.

23 Q. Might it have been from a police officer?

24 A. It could have been.

25 Q. But might it have been somebody who had nothing to do

102

1 with the police --

2 A. I think it is most likely to have come from a police or

3 possibly a Special Branch officer.

4 Q. Did you attach credence to it?

5 A. It is something that you don't -- people have affairs

6 and it is something that you nod your head at and

7 move on.

8 Q. Did it affect your view of her?

9 A. No, it didn't.

10 Q. Do you think it may have affected your colleagues' views

11 of her?

12 A. I don't know how they would think. All I know is that

13 in life people have affairs. I have colleagues that

14 have had affairs. It is a fact of life, unfortunately.

15 Q. Now, in the evidence that the Inquiry has heard,

16 including from senior Special Branch officers, they have

17 explained first that they also were aware of the

18 allegations, indeed some of them thought they were more

19 than allegations, of this relationship. Was that

20 something that you were told about after the murder in

21 your contacts with Special Branch officers?

22 A. I really didn't know much detail of that until I read

23 the papers recently; that is, read the papers in this

24 case that the Inquiry has before it. I just knew of the

25 rumour of her relationship.

103

1 Q. Now, in your statement in a passage that we looked at

2 briefly earlier, you talk about the way in which you

3 think she may have been regarded in some parts of the

4 community and I would like you to look, please, with me

5 at paragraph 248, RNI-842-240 (displayed) at the top of

6 the page, where you say:

7 "I was aware that Mrs Nelson had in recent years had

8 a number of clients who were suspected members of the

9 PIRA, and this would have been well-known in the local

10 and wider Loyalist community who could have perhaps

11 drawn the conclusion that she was sympathetic to

12 Republican terrorists."

13 Do you see that?

14 A. Yes.

15 Q. Then you go on to talk about her high profile because

16 she was on television, connection with the

17 Garvaghy Road, et cetera, and you say this:

18 "This combination of factors would have made her

19 a hate figure in the eyes of some Loyalists,

20 particularly the LVF."

21 Presumably that's based on your knowledge of life

22 and the way these organisations were, based on your own

23 experience?

24 A. Yes, I think if you said to anyone in Lurgan or

25 Portadown, Mid Ulster, they would come up with the same

104

1 answer.

2 Q. So you think this was a generally held view?

3 A. Yes. Northern Ireland is a very divided society, it

4 certainly was then, and people retreat into their camps

5 and they take certain views, and that's a fact of life

6 in Northern Ireland.

7 Q. And the point here that you make at the top of the page

8 about her being perceived as being sympathetic to

9 Republican terrorists and that being one of the factors

10 that would have made her a hate figure, surely the

11 rumour that we have just been discussing -- that she was

12 not only sympathetic but allegedly having a relationship

13 with somebody regarded as a leading Republican

14 terrorist -- would have made her even more of a hated

15 figure, wouldn't it?

16 A. It might have just cemented their already firmly held

17 view.

18 Q. And wasn't intelligence going to that issue, therefore,

19 relevant to you in assessing how vulnerable she was,

20 where she was vulnerable and whether or not she was

21 a likely target?

22 A. I actually didn't think she was a likely target. There

23 seemed to be an unwritten code in Northern Ireland

24 certainly that solicitors were not targets by either

25 side of the community. It almost seemed to be an

105

1 unwritten law between terrorist groups. I do know about

2 the murder of Mr Finucane. Since then it has relatively

3 been not the case.

4 Q. In relation to defence lawyers, there had been that one

5 very prominent example previously, had there not?

6 A. That's correct.

7 Q. And of course a number of lawyers working for the State

8 in one capacity or another, judges, magistrates,

9 prosecutors, had also been attacked, had they not?

10 A. That's correct, yes.

11 Q. But you were surprised at any rate by the fact that this

12 particular defence lawyer was a target?

13 A. I was.

14 Q. And didn't that make it even more important to find out

15 as much as you could about her and about the

16 circumstances that had led to this surprising outcome?

17 A. Surprising outcome might be an overstatement. What I'm

18 saying is if they decided to go to kill a Republican,

19 they may have just tainted Rosemary Nelson in that vein.

20 In fact, in Northern Ireland, as I say, you just get

21 murdered because of your religion.

22 Q. Can I move on to a related point and, again, what the

23 Inquiry has heard in evidence from members of

24 Special Branch, amongst others, is that they regarded

25 her as someone who had crossed the line, to use the

106

1 expression one of them used; in other words, someone who

2 was herself committing criminal offences and was

3 regarded by one of them at least as being herself

4 a terrorist.

5 Were you aware that those views of her were held?

6 A. Certainly I didn't hold those views and I didn't hear

7 them openly vocalised in my presence, ever.

8 Q. When you say that, you mean both before and after the

9 murder, do you?

10 A. That's correct.

11 Q. Had you been aware that views, those very strong views

12 of her, were held, would you not have wanted to

13 investigate that matter in the context of a case where

14 allegations of collusion were being made?

15 A. Certainly I would think Mr Provoost would have wanted to

16 pursue that.

17 Q. Yes. I mean, during the investigation.

18 A. (inaudible) this investigation, yes.

19 Q. Yes. Presumably that would be for the same reason: that

20 anything which shed light on the circumstances in which

21 she might have been vulnerable, might have been singled

22 out for attack, was of relevance to you and your

23 colleagues?

24 A. Yes.

25 Q. Now, do you think in the light of the work that you have

107

1 done to look back over these issues, that with hindsight

2 you should perhaps have been more open to these lines of

3 enquiry and focused your attention rather more widely in

4 investigating her background and what was known or

5 believed about her?

6 A. No, in hindsight obviously you can do things

7 differently. But what I would say is that had this

8 been, as I referred to earlier, an ordinary murder

9 without explanation, we would have been more diligent on

10 our pursuit of her background, who she associated with,

11 what type of affairs she had, even who some of her

12 clients were, what sort of cases she dealt with, how she

13 handled them, who she fell out with, issues within her

14 domestic situation. But this was a terrorist murder and

15 certainly all of the indicators were that it was

16 a terrorist murder, and with regard to Colin Duffy, that

17 didn't change our mind.

18 Those were issues we considered not in any great

19 depth, certainly in my presence, but what I would say is

20 that if you develop the hypothesis, which I'm certain

21 that is, a supposition or a non-founded assumption, that

22 Colin Duffy was involved in the murder, then you have

23 got to say, "Where did he get the device?" You have --

24 we had intelligence to say that from (redacted) different

25 sources, some of who -- I realise I can't go into detail

108

1 in this open session -- (redacted)

2 (redacted)

3 (redacted)

4 (redacted). That would have meant that Duffy would have

5 had to get the device off that individual, and knowing

6 the background that we carried out in respect of our

7 investigation into the bomb maker, he was a vicious

8 murderer who would have been very keen to murder

9 Colin Duffy and that alliance would never have come

10 together.

11 Q. But, again, a bit like our exchange earlier this

12 afternoon, all of that comment and analysis falls away

13 if you are wrong about the bomb maker, doesn't it?

14 A. That's right, but in terms of the bomb maker, you made

15 the reference earlier to the three individuals. I would

16 suggest (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted), but also by the forensic

21 examination of other devices.

22 Q. Can I just look briefly at one or two further reports

23 that you say you did receive and that means going back

24 to your table at paragraph 34, RNI-842-285 (displayed)?

25 The first document you refer to in this very helpful

109

1 summary, number 1, is a report of November 1997. And

2 your comment about it is:

3 "We are aware of the details of this information,

4 but did not see the document in this format. This was

5 of interest to us."

6 Just to be clear about this -- and, again,

7 remembering the constraints we are under in this

8 session -- are these details matters that you were made

9 aware of in an informal conversation? Is that what you

10 are saying?

11 A. No, they weren't. When I looked forensically at the

12 previous devices, this was one device that we examined.

13 It was one that was on the HOLMES system. And also we

14 made a point of speaking to the senior investigating

15 officer of that case and he had prepared a secret

16 intelligence document about the background to the murder

17 and who carried it out, the extent of the intelligence

18 regarding that murder and who -- who they suspected of

19 carrying out the murder in Bangor, and confirming that

20 that SIO had obtained information from the

21 Special Branch in relation to it.

22 Q. Thank you very much. That's extremely helpful. Can

23 I just ask you to stand back a bit and look at this

24 question more generally because what you have done for

25 the Inquiry's benefit is to look at individual source

110

1 reports that, by definition, you haven't seen before,

2 the documents themselves, and give your comment as to

3 whether they were relevant and, in your view, you should

4 have seen them.

5 What I wanted to touch on with you is this topic.

6 The way you have described the interaction between you

7 and the Special Branch officers, there was obviously

8 a good deal of discussion with them and there they

9 participated in the meetings that you have mentioned.

10 That's correct, isn't it?

11 A. That's correct, yes.

12 Q. Is it possible that by focusing very much on the

13 individual reports, the intelligence reports here, you

14 might be running the risk of ignoring information that

15 may have come your way in a much less formal context, in

16 the course of a meeting, as a result of a less formal

17 briefing, for example?

18 A. No, I don't think -- I would imagine it would have been

19 recorded in the minutes of the meeting.

20 Q. So as far as you have been able then, in the work that

21 you have done on these tables, you have tried to take

22 account of information set out in these reports that you

23 may or may not have received in other ways and the

24 example we looked at there you have just explained. Is

25 that right?

111

1 A. Yes.

2 Q. So you don't think that it is possible, other than in an

3 example such as that where you have made the point

4 yourself, that you heard about what's set out in these

5 reports in another way?

6 A. We could have heard something of intelligence at

7 a meeting, but had that been the case, I would be quite

8 certain that, had Mr Kinkaid not asked for it, either

9 Mr Port or myself or Mr Provoost would have asked for it

10 in a documentary form or we would have submitted

11 a request for it in that fashion.

12 Q. Thank you. Now, moving on to your next table -- and

13 that's at paragraph 35 at RNI-842-287 (displayed) --

14 here you identify 17 items of intelligence which you

15 believe to be intelligence that would have been (a) of

16 interest to the MIT, and (b):

17 "I would have expected to have seen, but was not

18 disclosed at the appropriate time."

19 Now, just so we are understanding each other, when

20 you say:

21 "... but was not disclosed at the appropriate time,"

22 do you mean you got it a bit late or do you mean you

23 didn't ever see it?

24 A. Some of it I believe perhaps we got during the

25 intelligence reviews from 2003 on. So by the time --

112

1 I mean, during the first two years of the investigation.

2 Q. Now, what I would like to do, if I can -- can we have

3 both of these pages on the screen, please: RNI-842-287

4 and RNI-842-288 (displayed).

5 A. I could be more certain if I ran through them one by one

6 and know when I got them.

7 Q. Yes. I don't think we have got time for that sort of

8 detail, but can you point in your comments to an example

9 of where you are telling us that you didn't see it when

10 you should have seen it, but you think you may have

11 picked it up much, much later when you did your review

12 at the end of 2003?

13 A. It is difficult not having the text of the document

14 here.

15 Q. Yes.

16 A. It is almost impossible without having the text.

17 Q. Okay. So far as you are concerned then -- again, I now

18 understand what you are saying by not disclosing it at

19 the appropriate time -- this list includes some items

20 that you never saw?

21 A. Correct.

22 Q. And some items that you didn't see the document, but you

23 learned some of the contents. For example, look at the

24 fifth one down on the left-hand side. You say:

25 "We never received this document although there are

113

1 parts of the intelligence that we did receive."

2 Do you see that?

3 A. Yes.

4 Q. But there are other reports, as I understand it, where

5 you may not have known about the intelligence when you

6 think you should have done, but in the course of your

7 review, four years or more after the murder, you may

8 have picked up some of this information then?

9 A. Yes, parts of it.

10 Q. Yes.

11 A. We never, ever received this intelligence in this format

12 in its fullest form.

13 Q. Can I take it that you are unaware of any reason which

14 would have prevented that intelligence being handed over

15 to you at the appropriate time?

16 A. I don't know of any reason.

17 Q. Yes. And again -- it may be obvious to you -- but

18 presumably intelligence handed over in the first weeks

19 or months of an investigation is a lot more useful than

20 intelligence picked up in part four and a half years

21 after the murder?

22 A. That's correct, yes.

23 Q. Yes. Can I just ask you to consider a general question

24 about this intelligence, all 17 items: did its

25 non-disclosure have any adverse impact on the

114

1 investigation?

2 A. Again, I probably would have to go through one by one,

3 but I would say in some ways it inhibited the

4 investigation in that we may have wanted to pursue some

5 of the aspects of intelligence more diligently, which

6 may have opened up another line of enquiry, because

7 quite often when you are looking at intelligence, as I

8 have done quite a bit, you look at it and then look at

9 the following pieces afterwards to try and contextualise

10 it and the wider picture, and you get a fuller story.

11 Q. And is there anything in this list of intelligence, the

12 reports here, which you think would have made you

13 reconsider your main suspects, the main thrust of the

14 investigation?

15 A. No, there isn't. In fact, as the investigation

16 progressed, the more intelligence we got, the more

17 affirmed that we were following the right line of

18 investigation.

19 Q. But looking now not at what happened in the actual

20 investigation but at what would have happened had you

21 been privy to this intelligence, because that's what we

22 are considering, would it have affected your conviction

23 that the key suspects were the people you should be

24 going after?

25 A. No, I believe that -- as I said earlier, it would -- it

115

1 affirmed our view that we were following the right line

2 of investigation and looking at the right people and,

3 you know, I can be specific about different aspects of

4 that intelligence.

5 Q. If there are specific examples of that, it would be very

6 helpful if you could identify them.

7 A. Again, I do not have the text, but there is one piece --

8 Q. I can take you to the documents --

9 A. (Redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted). In fact, that was absolutely right, that

14 accorded with the intelligence that we had, which is in

15 document R1Y, which is probably --

16 Q. Yes. But is that a document referred to on the screen?

17 Is it, for instance, RNI-545-016?

18 A. It is one of these 17.

19 Q. Shall we try RNI-545-016 (displayed), then RNI-545-017

20 on the right-hand side (displayed). Is that the one you

21 had in mind?

22 A. No, that's not. But, again, that's another example,

23 that that, again, accorded with the intelligence we got

24 in R1Y.

25 Q. R1Y is at RNI-909-122, if that helps you. Could we have

116

1 that, please?

2 A. Yes, that's the document.

3 Q. Thank you. Now, just picking up the point you made

4 a little earlier about material coming in at various

5 different dates, can you look, please, at RNI-621-047

6 (displayed) so that we understand what you are saying

7 about this, which is the first page of the schedule

8 attached to your -- could we turn it the right way

9 round; thanks -- to your second statement. Does this in

10 the right-hand side, although it is very badly copied,

11 tell us when you first received or were aware of the

12 intelligence?

13 A. Yes, it says -- my comment is --

14 Q. Yes.

15 A. "Not received until February 2007."

16 Q. Yes. Just flicking through those entries on the pages,

17 which take us all the way to RNI-621-052 (displayed), I

18 don't think there are any dates there as early as 2003;

19 it looks as though they are all in 2006/2007/2008. So

20 in fact the time when you were first aware of this

21 intelligence was many years after the murder; is that

22 right?

23 A. That's right, yes.

24 Q. And some time after the intelligence review began at the

25 end of 2003?

117

1 A. That's right, yes.

2 MR PHILLIPS: Now, what I would like to do now is to turn to

3 a different topic, which is the question of your

4 involvement in the forensics.

5 Sir, it is 5 o'clock. I don't know what the best

6 way to play it is. Could I say that the complicated

7 factor is the need to accommodate a closed hearing --

8 THE CHAIRMAN: Yes.

9 MR PHILLIPS: -- in this case. I was hoping that if we

10 completed M540's evidence by between half past 11 and 12

11 tomorrow, we would complete the whole thing by 1, which

12 is the time allowed. So --

13 THE CHAIRMAN: The closed hearing is of great importance.

14 MR PHILLIPS: It certainly is.

15 THE CHAIRMAN: Certainly I have a number of questions on the

16 documents that we have alluded to here.

17 MR PHILLIPS: Yes. In that case, I think if we start at

18 10.15, we will probably be in difficulty trying to get

19 through the remainder --

20 THE CHAIRMAN: So far as the Panel is concerned, we would

21 like to sit as late as reasonable this evening.

22 MR PHILLIPS: I think the key person, as always, is the

23 stenographer.

24 Excellent. Now, what I would like to do is to move

25 on to this separate topic. You have already helpfully

118

1 explained how you took charge of the forensic side of

2 the investigation, and what I would like to look at in

3 particular with you is the question of the attention

4 that was paid to the device itself and the issue of

5 comparison with other devices.

6 Now, you begin to talk about this in paragraph 127

7 of your statement at RNI-842-202 (displayed), where you

8 explain that you were asked by Mr Kinkaid to take charge

9 of the issue. And if we look together at a very early

10 policy file entry, 17 March 1999, at RNI-616-778

11 (displayed), we will see that the examination of

12 previous incidents where similar devices were used by

13 Loyalists was one of the large lines of enquiry

14 established by you and Mr Kinkaid. Is that correct?

15 A. That's correct, yes.

16 Q. Thank you. Can I ask you why was it that at this very

17 early stage, only two days after the murder, the line of

18 enquiry was limited to Loyalist devices?

19 A. I think at this particular stage I had been involved in

20 the scene examination, along with Dr Murray, and

21 certainly from my recollection at that earlier stage he

22 indicated to me that he was of the firm view that this

23 was a device that was constructed by Loyalists because

24 it matched other devices that he had examined. And

25 furthermore, on 16 March, which was the previous day, he

119

1 actually had produced to me a document to show me of a

2 similar series of devices, which he felt -- that this

3 one was part of the same series. So at that stage that

4 required us to look at other Loyalist devices.

5 At that time, I should say, there had been very few

6 Republican devices -- probably there had been no

7 Republican devices in the previous five years.

8 Q. Thank you.

9 A. I stand to be corrected on that, but that's the best of

10 my recollection.

11 Q. Just picking up a comment you made in the course of that

12 answer, I think you said that his view, more or less

13 from the outset, was a firm view -- I think you may even

14 have said a "very firm view --

15 A. I think it was a firm view, yes.

16 Q. -- that there were similarities between this device and

17 earlier Loyalist devices?

18 A. Yes.

19 Q. Thank you. Can I just trace that through because these

20 are documents that we haven't seen to this point. There

21 is a note of a very early conference in the case at

22 RNI-704-016. Can we have RNI-704-016 and RNI--704-017

23 on the screen; that would be helpful (displayed)? This

24 is on the day of the murder at 7 o'clock in the evening,

25 and amongst those present are the SIO and

120

1 Inspector Monteith, the liaison officer and Dr Murray.

2 Do you see? It is slightly obscured, where he comes

3 from --

4 A. Yes, I see that.

5 Q. Yes. And on the second page there:

6 "The make-up of the device bears similarities to

7 a number of other devices, particularly ones used in

8 Belfast, Bangor and Derry. There was an element of

9 sophistication in its construction. Although there may

10 have been local involvement in placing the device, it

11 may not necessarily be of local construction."

12 A. That's correct.

13 Q. Now, can I take it that that is a record of opinion that

14 he expressed in that meeting?

15 A. Yes, it must have been, yes.

16 Q. So then it says:

17 "Research to be carried out into other incidents

18 where a similar device was used and research to be

19 carried out to establish what intelligence exists

20 re persons with the ability to construct such a device."

21 That presumably picks up the point in his opinion

22 that there was an element of sophistication in it?

23 A. That's correct, yes.

24 Q. Which suggested that the local players probably didn't

25 have the capacity themselves to construct it, so that

121

1 even if they had been involved in placing it, they would

2 almost certainly have had to source it from elsewhere?

3 A. That's correct, yes.

4 Q. Now, can I just look at various aspects of the work that

5 you did in assessing the device and then move on to the

6 question of these similarities.

7 First of all, looking at the component parts of the

8 device, two in particular I would like to ask you just

9 a few questions about: the first, the magnets that held

10 it in place; and second, the tilt switch.

11 It is probably sensible to have the relevant part of

12 your statement in front of you. It begins at

13 RNI-842-205 at the bottom of the page, paragraph 140

14 (displayed).

15 Now, as I understand it, the point here is that

16 there were three magnets and they were very strong

17 magnets used in this particular attack. Is that right?

18 A. Yes, they are capable, I think, of holding 120 kilograms

19 each.

20 Q. Thank you. It looks as though following enquiries, the

21 view of the team, the Murder Investigation Team, was

22 that they came from Harland and Wolff?

23 A. That's correct, yes.

24 Q. What in your mind was the significance of that?

25 A. Well, it took us back into East Belfast, which was the

122

1 heartland of Loyalism, that part of Belfast. And it

2 actually was the -- an area where the bomb maker had

3 firm roots in the past.

4 Q. And you say in your statement at 142 -- if we can have

5 that on the screen, please, RNI-842-206 (displayed) --

6 that the idea that they, the magnets, could have been

7 sourced anywhere else was, in your view and that of the

8 SMT, fanciful?

9 A. Yes.

10 Q. Why do you say that, please?

11 A. Why do I say that?

12 Q. Yes.

13 A. Because it is fanciful.

14 Q. You can't put it any more clearly than that?

15 A. I can't put it any more clearly than that.

16 Q. Right. To what extent was your view about the

17 significance of the magnets itself predicated upon your

18 view about the identity of the bomb maker?

19 A. I think it certainly aligned itself with other

20 intelligence that we had, the fact that it came from

21 East Belfast, the fact that the bomb maker had a strong

22 association -- maybe not personally himself secured the

23 device, but he certainly had a raft of associates who

24 had access to the Harland and Wolff shipyard.

25 Q. If we go and see how you explain this in your statement

123

1 at 144 together, on the next page, please, RNI 842-207

2 (displayed), you make the connection very clear in the

3 fifth line:

4 "Taking the circumstances and knowledge of the

5 suspected bomb maker into account, we were satisfied

6 that the magnets used in the murder almost certainly

7 came from Harland and Wolff"?

8 A. That's correct.

9 Q. Again, as I have said to you now, I think, on two

10 previous occasions, if you were wrong about the identity

11 of the suspected bomb maker, then this connection also

12 fell away, didn't it?

13 A. It could have done, but I think we live in the real

14 world of investigation here and terrorists don't have

15 mail orders to firms in Japan to supply magnets. It

16 certainly would expose them considerably, and having

17 recovered the magnets, made enquiries at Harland and

18 Wolff, I established that we have got to take

19 circumstances a little bit further.

20 We found a rail that had four magnets missing from

21 it. We took those to the laboratory. Although they

22 couldn't physically put them back on the rail, there was

23 one of them -- you could see from that clamp that held

24 the magnet that it bore the same paint marks around it

25 that would have -- was on the magnet.

124

1 Q. Let's trace that through because you have anticipated

2 what I was going to ask you about. In 146, you talk

3 about the knowledge that you gleaned that a number of

4 magnets of the type used in the device were missing from

5 two specific gas cutter rails at the Harland and Wolff

6 yard?

7 A. That's right, yes.

8 Q. And you compared those, did you not, using Dr Murray's

9 expertise, with the magnets from the device; is that

10 right?

11 A. Yes.

12 Q. Now, let's see what conclusion he reached at RNI-717-053

13 (displayed), which is a record of the opinion he

14 expressed on 28 June. It says:

15 "Dr Murray FSANI was spoken to this date by me. He

16 states that there is no physical match between the

17 magnetic GM2 recovered device used against Mrs Nelson

18 and the gas cutter rails. For information, SIO, no

19 formal report as yet available."

20 Now, in your statement at RNI-842-207 (displayed),

21 you say at the bottom of the page, paragraph 146 again:

22 "Forensic examination proved inconclusive and could

23 neither establish nor rule out the possibility that the

24 magnets used in the device originated from either of the

25 two rails."

125

1 I mean, the forensic conclusion as set out in that

2 note I have just read you was rather more negative than

3 that, wasn't it:

4 "No physical match"?

5 A. Yes, that's obviously a forensic term, in terms of they

6 are trying to prove scientifically that there is no

7 physical match.

8 Q. It doesn't sound inconclusive, does it?

9 A. Well, it is inconclusive in my view. I think if there

10 are other documents within the investigation that you

11 will find that maybe clear this matter up.

12 Q. That gave you a more positive steer?

13 A. Well, that confirmed what I was saying.

14 Q. But do you think that when you say "proved inconclusive"

15 what you have in mind there is that the forensic

16 scientist's view didn't back you up?

17 A. Well, it was immaterial to me whether it backed me up or

18 not. We took a sample magnet from the laboratory and

19 had it examined against the magnet recovered from the

20 scene, and even a layman -- even yourself,

21 Mr Phillips -- will certainly reach a conclusion by

22 examining that -- and I think if you look at the chart

23 even, you will see the marks on the actual magnet, where

24 it actually has been attached to a rail, in the same

25 fashion as the one that we submitted to the lab. I

126

1 think there are other documents in the investigation

2 that maybe firm up my view.

3 THE CHAIRMAN: So you say there were marks on the magnets

4 that matched marks on the rails; is that right?

5 A. That's correct, but not forensically.

6 THE CHAIRMAN: No, not forensically. But by your

7 observation, or a layman's observation, you would see

8 the match; is that right?

9 A. You would see the match, yes.

10 THE CHAIRMAN: Is that recorded somewhere?

11 A. I believe it is, sir.

12 MR PHILLIPS: It may be recorded and it may just be I

13 haven't seen the document, but if you look back at your

14 statement, you are putting it rather more neutrally than

15 that, aren't you:

16 "Forensic examination proved inconclusive and could

17 neither establish nor rule out the possibility that the

18 magnets used in the device originated from either of the

19 two rails that the MIT had obtained"?

20 A. I'm saying forensically there. I'm giving my own

21 opinion from my own visual. Then you could take it

22 further: if they didn't come from the rail, where did

23 they come from.

24 Q. What I'm going to suggest to you is if you called

25 Dr Murray and examined him in court, he wouldn't have

127

1 done you much good.

2 A. No, he wouldn't.

3 Q. Looking at the other element, the tilt switch, that you

4 deal with in paragraph 156 to 158 of your statement,

5 RNI-842-210 to RNI-842-211 (displayed). There you say

6 in the first sentence that this was the item within the

7 device that seemed likely to produce the most positive

8 lead in identifying the bomb maker or his associates.

9 Now, why, please, do you say that?

10 A. I simply say it because it had to be purchased at

11 a retail outlet, either by going into the premises and

12 getting it over the counter or by mail order.

13 Q. But doesn't the ready availability of something actually

14 make it much more difficult to source precisely?

15 A. In some ways, yes, but mercury tilt switches are not

16 like groceries. There is a limited amount of people

17 that want them, you know. So what I'm saying is that at

18 least we had a starting point. We established through

19 investigation there is only one outlet in

20 Northern Ireland that is likely to sell this device.

21 (Redacted)

22 (redacted)

23 (redacted). But there is always

24 a possibility that some member of staff may have

25 recalled an individual that could have set us in the

128

1 right way. It did open opportunities for us.

2 Q. Now, so far as that's concerned, can we just look at

3 a document and see if it is the right one on this,

4 RNI-716-048 (displayed)? And this is a response to some

5 questions that the team had posed, I think to

6 Special Branch. Is that right?

7 A. That's correct, yes.

8 Q. So here is an example of what you were saying to us

9 earlier, where you sent out specific tasks for them and

10 they have responded in writing. Again, very difficult

11 to read, I am afraid, at the bottom because of all the

12 redactions, but it seems to be saying that intelligence

13 would also indicate that -- then there is a name

14 redacted, which is the name of the suspected bomb maker:

15 "... would obtain various parts for that devices

16 from ..."

17 (Redacted)

18 (redacted)?

19 A. Yes.

20 Q. That's the line of enquiry that you were pursuing?

21 A. That's right, yes.

22 Q. But it sounds as though this was also inconclusive; is

23 that right?

24 A. In terms of the bomb maker obtaining items from that

25 outlet?

129

1 Q. Yes.

2 A. There is certainly other intelligence within the

3 investigation and on our HOLMES account which gives

4 evidence that this person actually did at one stage buy

5 items from that company by mail order. And we have

6 documentary evidence to support that.

7 Q. To what extent was your focus on this particular

8 retailer, known there as "retailer 1", determined by

9 your view of the identity of the bomb maker?

10 A. It wasn't determined at all by the identity of the bomb

11 maker. We started out with the makers of the device,

12 (redacted) -- perhaps I shouldn't have named that

13 name -- and (redacted). Then we found out where they

14 distributed them to and they distributed to firms north

15 and south of the border. We narrowed it down because of

16 the certain markings on the device. We -- on the actual

17 tilt switch. (Redacted)

18 (redacted)

19 (redacted).

20 Q. Indeed. I just want to ask you another question about

21 validation in this connection, please, and that's at

22 paragraph 247 of your due diligence statement,

23 RNI-842-239 (displayed). Again, I'm back to the bomb

24 maker rather than the device itself.

25 Here, in the course of talking more generally about

130

1 intelligence, you touch on the various items of

2 intelligence pointing to the bomb maker. Do you see

3 that, about seven lines down, seven or eight lines down?

4 And his connections with the key LVF terrorists in

5 Belfast?

6 A. Yes.

7 Q. If you read on, you make various further comments about

8 him and, indeed, about other intelligence as to his

9 activities. Then about seven lines from the end of the

10 paragraph, you say:

11 "Mr Provoost and I have been conducting a review of

12 intelligence received during this investigation ..."

13 The review I think that you mention in your

14 evidence; is that right?

15 A. That's right, yes.

16 Q. "... and whilst it is not complete, we have validated

17 the intelligence received in respect of the bomb maker."

18 The question I want to ask you is this: was the

19 intelligence in respect of the bomb maker not validated

20 at any stage before your review?

21 A. Yes, I believe it was to some extent by Mr Port, but

22 this further piece of work -- I think there was

23 additional intelligence even since Mr Port's day in

24 relation to the bomb maker.

25 Q. So to be clear then, if that validation took place, it

131

1 was, to use your expression, validated to some extent

2 and that was not undertaken by you, but by, you think,

3 Mr Port?

4 A. That's correct, yes.

5 Q. And you were aware of that happening at the time, were

6 you?

7 A. I'm aware -- yes, that he did validate the intelligence.

8 Q. And is it possible for us to hear from you in this open

9 hearing as to what steps Mr Port took to validate that

10 intelligence, as far as you are aware?

11 A. I understand that he certainly -- if he didn't go to the

12 CHIS handler, he spoke to his authorities and got quite

13 detailed information.

14 Q. Right. Thank you. Now, can I turn to another topic

15 that you attach some significance to in terms of your

16 picture of the likely bomb maker, the likely suspect, in

17 that regard, and that's the removing of the lettering

18 from the battery.

19 Again, for your note, as it were, or your research,

20 it is paragraphs 159 to 161 of your due diligence

21 statement, RNI-842-211 to RNI-842-212 (displayed). Did

22 the fact that the serial number had been scratched off

23 the battery -- was that something that in your view

24 pointed to that particular individual?

25 A. No, it didn't point to that bomb maker, no.

132

1 Q. Now, the forensic scientists in their statements to the

2 Inquiry have both said, albeit it in different ways,

3 that this was not an unusual thing to find and, in the

4 words of Mr Todd in his statement to the Inquiry, it was

5 not particularly significant. Is that a view that you

6 would share?

7 A. No, I wouldn't share that view with him. In the

8 previous eight devices, as far as I recall, probably

9 seven of them had a PP3 battery and none of the markings

10 were scraped from any of them.

11 Q. None of them were?

12 A. None of them were.

13 Q. So these are the previous devices that you considered in

14 your comparison?

15 A. That's correct, yes.

16 Q. So in fact, this device was therefore different in that

17 respect to the other devices?

18 A. In that respect, yes.

19 Q. So what significance did that have for you?

20 A. It certainly -- because of, as I think I explained in my

21 statement, a previous investigation I had done the

22 previous year and a murder by the LVF.

23 Q. Yes. Can we have the relevant paragraph on the screen

24 to assist you? It is 160 at RNI-842-212 (displayed). I

25 think that's what you are talking about, isn't it? Is

133

1 that right?

2 A. That's correct, yes.

3 Q. Sorry.

4 A. Yes. It is, as I have said there, an investigation

5 carried out by the same unit of LVF who we suspected

6 were involved in the murder of Mrs Nelson. We had

7 retrieved the lighter fuel can near clothes that were

8 worn by the culprit in the murder, and they had been set

9 alight using the lighter fuel. And we then set about

10 trying to trace the lighter fuel by the marks on the

11 can.

12 It had been quite a well-known thing around the

13 neighbourhood and Portadown in particular and that was

14 the connection I made. I could be totally wrong, but

15 I certainly think there was some significance for the

16 bomb planter or whoever put the battery in the device in

17 removing those marks.

18 Q. So this was not a battery, but a lighter fuel can?

19 A. That's right, yes.

20 Q. I understand that, but what of the fact that in the

21 eight devices that you considered, whereas you told us

22 the batteries did not have their serial numbers

23 scratched out, there were some which had been deployed

24 after Rosemary Nelson's murder?

25 A. Sorry, I'm dealing with the ones before

134

1 Rosemary Nelson's murder.

2 Q. Right. But is it not the case that there were Loyalist

3 devices used after the murder of Rosemary Nelson in

4 which no such scratching out had taken place?

5 A. I can't be categoric, but I think that in one other

6 case -- and I could be totally wrong, but I'm going from

7 memory, and I think perhaps one device in County Tyrone,

8 the markings were stripped off the battery as well in

9 a similar fashion, which also would make it significant

10 that that is the case.

11 Q. Yes. But if, you see, what you are saying in

12 paragraph 160 is effectively they became a bit more

13 forensically aware, you would have expected that still

14 to be the case in any device used after

15 Rosemary Nelson's murder, wouldn't you?

16 A. The incidents that took place after the murder of

17 Rosemary Nelson were of a different type, and I would be

18 quite satisfied that the bomb maker that we suspected in

19 the Rosemary Nelson case would have been unlikely to

20 have been involved in the making of these other devices.

21 The devices that are used after the murder of

22 Mrs Nelson were part of a LVF/UVF feud, and the targets,

23 from recollection, all of them were LVF suspects. So

24 the LVF were on the receiving end this time and,

25 therefore, I would suspect a different bomb maker was

135

1 involved.

2 MR PHILLIPS: Thank you.

3 Sir, I'm just about to move on to another topic.

4 Would that be a convenient moment?

5 THE CHAIRMAN: Yes, thank you.

6 SIR ANTHONY BURDEN: Could I just ask one point from that,

7 if you have finished there, Mr Phillips?

8 MR PHILLIPS: Yes.

9 SIR ANTHONY BURDEN: I think in your statement somewhere --

10 I'm not sure exactly where -- you detail why you feel

11 this was not a Republican device.

12 A. Yes.

13 SIR ANTHONY BURDEN: Could you just outline for us in

14 addition to your statement why you came to that

15 conclusion?

16 A. Over the years I had been involved in the investigation

17 of several Republican incidents, including under-vehicle

18 booby trap devices, where they had put them under

19 vehicles. And generally devices -- under-vehicle booby

20 trap devices and, indeed, incendiary devices were almost

21 factory-made by the Provisional IRA in the sense that

22 they were produced by one individual and came almost

23 with an instruction pack to the local unit that was

24 going to place them.

25 They were almost standard, every single device was

136

1 standard. They were constructed in a certain way; in

2 particular they had a doyle pin that had to be pulled

3 out, which was unique to the IRA, for a safety mechanism

4 in planting them. They always used Semtex explosives

5 and almost without exception all of the devices used was

6 a Memopack timer, and quite often on an under-vehicle

7 booby trap device they used Sea Searcher magnets. They

8 also used ordinary magnets from radios that they could

9 take apart, but they used Sea Searcher magnets quite

10 often. And I have been at the scene of murders where

11 they have used that type of device.

12 Certainly, by examining those devices you can

13 clearly see, even to a layman, the construction of them

14 and the way that they put them together. In a sense,

15 for want of a better expression, it was much more

16 professional that the type of device that was made by

17 the Loyalists in all of the ones that I have looked at.

18 SIR ANTHONY BURDEN: So in coming to your conclusions that

19 this was a Loyalist device, it was not only similarities

20 in the Loyalist devices you had experienced, it was the

21 fact that they were remotely different --

22 A. Completely different. Completely different

23 construction. In fact, there was just one of the

24 devices that they forensically felt was modelled on an

25 IRA device, and it was one of a series of devices where

137

1 a wooden box had been used. And it had been modelled on

2 a Provisional IRA device, and it had a different suspect

3 from the suspect that we were looking at.

4 SIR ANTHONY BURDEN: Right, thank you very much.

5 THE CHAIRMAN: Before the witness leaves, can the video

6 engineer please confirm that all the cameras have been

7 switched off?

8 THE VIDEO ENGINEER: Yes, they have.

9 THE CHAIRMAN: Mr Egan, before the witness leaves, do you

10 think you, with the assistance of the witness, could see

11 if you can identify the documentary evidence that he

12 mentioned that he thought was in existence in answer to

13 a question --

14 MR EGAN: Yes, sir, we will do what we can.

15 THE CHAIRMAN: Thank you very much.

16 Right, will you please escort the witness out.

17 A. Thank you.

18 THE CHAIRMAN: Right, quarter past ten in the morning.

19 (5.30 pm)

20 (The Inquiry adjourned until 10.15 am the following day)

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