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Full Hearings

Hearing: 12th February 2009, day 106

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ROSEMARY NELSON

PUBLIC INQUIRY

 

 

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held at:
The Interpoint Centre
20-24 York Street
Belfast BT15 1AQ


on Thursday, 12 February 2009
commencing at 10.15 am


Day 106

 

 

 

 

 

 

 


 

1 Thursday, 12 February 2009

2 (10.15 am)

3 MR SAM KINKAID (continued)

4 Questions by MR PHILLIPS (continued)

5 THE CHAIRMAN: Yes, Mr Phillips.

6 MR PHILLIPS: Now, Mr Kinkaid, we were talking yesterday

7 afternoon about the, as you saw it anyway, failure of

8 Special Branch to disclose the existence of Operation

9 Fagotto to you for those days at the start of the

10 investigation. I would like to look with you, please,

11 at paragraph 55 of your second witness statement,

12 RNI-811-163 (displayed).

13 A. I don't seem to have copies of my statement here. There

14 are two exhibit boxes here.

15 Q. Right, can we just deal with it on the screen for the

16 moment. We will get that material to you as soon as we

17 can.

18 Is it fair to say that your approach to this matter,

19 once you were told of the existence of the operation,

20 was influenced by that initial non-disclosure?

21 A. Can you explain what you mean by that? Do you mean the

22 actual actions I raised in relation to Fagotto?

23 Q. Yes. Here you describe that B629 offered you statements

24 and you declined the offer and said that the officers

25 would have to be interviewed by M540 and there would be

 

 

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1 an independent element to it with representatives from

2 Kent or the FBI. It turned out to be Kent, as we know.

3 What I'm asking you very simply is whether that

4 approach that you took was influenced by the

5 non-disclosure that you have told us about?

6 A. No, it wasn't.

7 Q. You would have taken it anyway?

8 A. Yes, because one of the problems historically for CID

9 officers prior to that was where there were -- and it is

10 actually very current in relation to what has happened

11 recently in the Metropolitan Police -- where there were

12 shooting incidents involving special forces, the whole

13 issue of whether people could be debriefed and who could

14 take the statements. It is not an issue that is

15 completely finished in British policing; it is still

16 alive.

17 I had been involved in previous incidents where I

18 was presented with statements where there may have been

19 an issue to do with an undercover operation and I wanted

20 to be able to speak to the people concerned and to have

21 my officers interview them direct in relation to the

22 taking of the statements, and clearly also wanted to

23 have Kent present. That would have been my line if it

24 had been got the day after her murder or four days

25 after, it would have been the same.

 

 

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1 Q. Thank you. Do you think the non-disclosure had any

2 effect on the relationship with Special Branch as it

3 developed?

4 A. Not for me. I can't talk for them. Clearly it was

5 something I thought should have been given to me earlier

6 and it did sort of influence me to pass a message to

7 everybody, everybody involved in the investigations --

8 Special Branch, CID, agency staff, forensic -- of the

9 need for quick disclosure and professional disclosure of

10 any information they had relevant to her death, and

11 I raised that at several conferences.

12 Q. Now, looking at other aspects of this that you touch on

13 in your second statement, can I look next with you at

14 paragraph 48 and the "down the corridor" remark. This

15 is at RNI-811-160 (displayed) and there you explain the

16 context of the remark which you made in the evening

17 conference on 19 March, and you say in the second line,

18 do you see:

19 "I very much had Operation Fagotto in my mind and in

20 particular my concern at not having been informed about

21 this operation sooner."

22 Taking this as quickly as we can, as I understand

23 it, what you say in your statement is that that comment

24 about, "Those down the corridor had issues to be

25 concerned about", et cetera, was in the context of

 

 

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1 disclosure?

2 A. Yes, and it was addressed to the whole party and there

3 were Special Branch officers present, yes.

4 Q. Now, you understand that, as it were, the other side of

5 this is the suggestion that you were pointing the finger

6 of blame, in a sense, or suspicion at Special Branch

7 down the corridor. What's your answer to that

8 suggestion?

9 A. No, I wasn't. I was just raising an issue about

10 professional governance of any enquiry and highlighting

11 to people the need to -- if they had information that

12 was relevant to Mrs Nelson's death or relevant to my

13 lines of enquiry, that I should have been told it

14 promptly.

15 Q. In paragraph 51 you go on to deal with the encounter

16 that you had with B629 about this and you set out again

17 your account of the matter. And in short, again, it

18 looks as though a question was raised with you. You

19 dealt with the question, B629 seemed to accept what you

20 were saying and, as it were, everybody moved on. That,

21 in a nutshell is what you are saying, as I understand

22 it?

23 A. I agree, with one additional point: that B629 did not

24 come to talk to me about it. There was a conversation

25 related to a whole series of other technical things

 

 

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1 about the interviews, as I recall. It was a bit like

2 when Columbo is leaving the room and he turns round and

3 says, "Oh, by the way, there is something else", and it

4 was just that sort of moment at the door that this

5 conversation was added on to the end.

6 Q. As far as that was concerned, as I understand it, you

7 don't accept that he came to see you about this

8 specifically and you don't accept that your initial

9 reaction was to deny having made the remark?

10 A. Not in the way that he said it. There is a lot of

11 significance that has been put on this remark by

12 Special Branch officers.

13 In terms of the sort of management style inside CID,

14 particularly where you are clearly trying to get in the

15 first golden hours the material then and get it

16 processed. People spoke probably more frankly maybe in

17 CID in terms of investigations. But there was nothing

18 that indicated they were under any special attention.

19 But in light of the fact that I hadn't been given stuff

20 promptly by them, I made one general comment

21 that Special Branch down the corridor should be aware of

22 the disclosure issues -- and maybe they were not used to

23 that being said in the presence of other

24 non-Special Branch officers, but there were other

25 situations where I made comments to other members of the

 

 

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1 investigation team about the need to just to improve

2 their performance.

3 It wasn't the only time I had to make those

4 comments; any SIO regularly has to bring people back to

5 areas of due diligence, if you want to use that term,

6 and that was all I was doing in this case.

7 Q. Did this issue in your view have any lasting impact on

8 your relationship with Special Branch?

9 A. No. Let me say, Mr Phillips, in my experience in

10 policing in Northern Ireland over the years, this is

11 a very mild issue compared to some of the things where

12 differences of opinions over parades or demonstrations

13 amongst senior officers -- this is not a major issue.

14 This is just what happens in work places when people are

15 trying to express opinions.

16 Q. Thank you. I would like to turn to specific pieces of

17 missing intelligence that you deal with in your

18 statement and, again, taking them as briefly as I can, I

19 would like to start by looking with you at 115, that's

20 RNI-811-181 (displayed), and here I'm concentrating

21 obviously on the information, the intelligence, that you

22 were not (Overtalking)?

23 A. I understand, yes.

24 Q. In 115, you say at the outset of this part of your

25 statement that there were some categories of

 

 

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1 intelligence that, even if you hadn't seen them, as it

2 were, didn't matter because you considered them to be

3 irrelevant. That's a crude summary no doubt, but that,

4 I think, is what you are saying in that paragraph; is

5 that right?

6 A. Not relevant in relation to the requests for

7 intelligence that I had given in and my lines of

8 enquiry, that's correct.

9 Q. The first one that you mention by way of example is

10 intelligence in relation to the Garvaghy Road Residents

11 Coalition. Can I just put this to you: surely material

12 of that kind had some relevance in that the work that

13 Rosemary Nelson did for the Residents Coalition served

14 to raise her profile and may have contributed to the

15 feelings, intense feelings, held about her by some

16 individuals in the Loyalist community?

17 A. Mr Phillips, we are back to the point I raised

18 yesterday. I'm not a Martian, I lived in

19 Northern Ireland, Mrs Nelson was regularly on the

20 television every night -- not regularly, but on the

21 television and being seen coming out of meetings,

22 discussing with ministers issues to do with the parades.

23 We knew she was the representative for the Garvaghy Road

24 Residents Coalition. I didn't need intelligence to tell

25 me that.

 

 

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1 Q. So you were satisfied, were you, that nothing in

2 intelligence would have added to the sum total of your

3 knowledge, as a non-Martian?

4 A. No, I didn't say that, in those words. What I said --

5 I'm talking about the specific line you have pointed me

6 to this in document.

7 It is an example of the next line, which I'm not

8 going to go into, but it says it was somehow associated

9 with threat. Now, go back to the key material I gave

10 the Special Branch in policy decision 19. One of them

11 says any information that relates to her being under

12 threat. There was no caveats put in that, as I recall.

13 Consequently if, for example, they were in possession of

14 intelligence that indicated not only was she going to

15 this Garvaghy Road Residents Coalition but, let's say

16 for example, that dissident Republicans were targeting

17 her because they didn't like something that she was

18 doing there, I clearly would have expected to get that

19 intelligence under that request. But nothing of that

20 came in.

21 Q. So that's a significant step forward closer to what you

22 were actually interested in; is that the point?

23 A. That's why the wording is important there. It was

24 somehow associated with a threat. Just telling me she

25 attended those meetings, that was public knowledge.

 

 

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1 So -- do you want to rephrase the question?

2 Q. What I'm asking you, I think, is this: wouldn't it have

3 been of relevance and interest to you to know as much as

4 you could about her, about the sort of work she was

5 doing, the sort of clients she had, the sort of

6 individuals she acted for?

7 A. But I knew that. I didn't need intelligence to tell me

8 that.

9 Q. There are considerable dangers, aren't there, in taking

10 the view in any investigation that there is really

11 nothing more about the victim that you need to be told?

12 A. I think if it relates to the facts of her death, I would

13 accept that.

14 It is hard to explain, but I tried to give the

15 example yesterday. Let's use someone of the name of

16 Billy Wright, who is dead. The files on Billy Wright

17 were enormous. I think that has been accepted into the

18 Inquiry into his death, but if you were investigating

19 a particular incident that he was involved in in, say,

20 1993 or 1994 in relation to an incident that was alleged

21 to have taken place, I think the SIO would have been

22 a bit surprised if he had got material from 1974 to his

23 recruitment days into the old UVF in Mid Ulster. There

24 would have been an expectation that the material

25 arriving would have somehow or other been significant or

 

 

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1 relevant to the matters that were being investigated.

2 Now, I was asked by your solicitors when they came,

3 first of all -- the first question was had I seen

4 a document and I said no. I remember being asked did it

5 add -- was it anything -- new to me and was anything

6 relevant. The answer was I hadn't seen it and it wasn't

7 something that I would have thought would have been

8 relevant because I knew she was attending those

9 meetings. Just in as much as I didn't need to know

10 about intelligence that Mr Duffy was attending the

11 meetings.

12 I gave you the example if there had been something

13 that indicated that the attendance at those meetings had

14 increased the threat, I had specifically asked

15 Special Branch to tell me about that. And there

16 obviously was nothing and that's why they didn't

17 tell me.

18 SIR ANTHONY BURDEN: But that surely requires a judgment by

19 Special Branch that they knew what you knew. I mean,

20 surely they should have passed over intelligence that

21 was relevant to Rosemary Nelson and this was a piece of

22 intelligence which refers to Rosemary Nelson. Surely it

23 would be absurd to expect them to --

24 THE CHAIRMAN: Make a guess.

25 SIR ANTHONY BURDEN: -- make a judgment, second guess -- a

 

 

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1 much better term -- second guess what you knew and

2 didn't know?

3 A. It would be very easy for me to sit here and say as the

4 SIO I should be the judge of what is relevant, but

5 that's not the way that I worked certainly. And I have

6 to be quite honest with you, there were forms that have

7 come in following HMI Blakey and Crompton and

8 Lord Stevens -- the report came from the

9 Metropolitan Police Commissioner -- have not introduced

10 a system in Northern Ireland that the SIO sees

11 everything and then picks what he thinks relevant.

12 So even the present system, which has been brought

13 in after advice and work by two HMIs and the

14 Commissioner of the Met, in Northern Ireland does not

15 have what you are suggesting. So consequently --

16 SIR ANTHONY BURDEN: Forgive me, there is no suggestion, in

17 my view, that this is a broad brush piece of

18 intelligence that is giving you everything. Would you

19 not agree that this is a fairly specific piece of

20 intelligence?

21 A. Well, it is an unusual piece of intelligence in the

22 sense it is telling us what was public knowledge.

23 DAME VALERIE STRACHAN: Could I ask -- sorry to intervene --

24 one of the interesting things about intelligence is what

25 it tells one about the person who is writing it down,

 

 

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1 including what conclusions they are drawing from it.

2 Would you not have found it helpful to have had

3 a picture of what the handlers and the recipients were

4 making of these apparently innocuous bits of

5 information?

6 A. I would have to say at the time that was not something I

7 was thinking about, about what they were thinking.

8 Clearly if you had somehow developed a line of enquiry

9 that indicated to you that there could have been

10 collusion with the source units, which is a completely

11 different group of people to Operation Fagotto, that may

12 have been something that Mr Provoost and Mr Port might

13 have decided was particularly relevant to the collusion

14 side, but not from the position I was sitting on in the

15 first couple of days.

16 And it is -- there is a danger -- I perfectly

17 understand where you are coming from and the fact that

18 the SIO doesn't see everything, but probably from my

19 perspective, the document I'm being shown here is

20 something that everybody knew, it was public knowledge,

21 that particular issue about the Garvaghy Road Residents

22 Coalition, and I can't -- I have to be careful because

23 I made -- I advanced the cause, I think, by putting

24 a number of requests to Special Branch. I showed them

25 the important areas of intelligence that I wanted. And

 

 

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1 clearly, as you will see later, a lot of undisclosed

2 stuff falls within that, but this is one here that, to

3 be fair to Special Branch, I suppose I can understand

4 why they didn't show me it: simply because Kinkaid would

5 have known that anyway because it is public knowledge.

6 MR PHILLIPS: Can I just ask you this: one of the things

7 that people were saying, as far as one can tell more or

8 less immediately after Rosemary Nelson's murder, was

9 that she had been murdered because she had been

10 identified with her clients. Wasn't it, therefore, of

11 obvious relevance to you, the investigator, that find

12 out as much as you could about the actual relationship

13 she had with her clients, whether through intelligence

14 or any other means?

15 A. Well, I suppose, we are under the same position again,

16 that being in the police and CID I knew the names, the

17 backgrounds, of some of her high profile clients and

18 would have been aware of that, and particularly my

19 deputy would have been aware of that (redacted)

20 (redacted).

21 Q. But, again, you see, there is a danger, Mr Kinkaid --

22 and it may be that this is you reconstructing ten years

23 afterwards, because you are giving the impression again

24 that these were things you knew and you didn't need to

25 be told anything else. Is that really the approach that

 

 

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1 you took to the investigation ten years ago?

2 A. I asked questions about matters that I thought were

3 relevant, and I appreciate -- I'm listening to the

4 question; please listen to the answer. I asked

5 questions about material I thought was relevant at the

6 time. I tried to give guidance as best I could to

7 Special Branch in relation to what I was looking for.

8 Q. But, you see, if you set the limits for what was

9 relevant and turned your mind away from other

10 possibilities, other areas, then by definition you

11 limited the assistance through intelligence that

12 Special Branch could give you?

13 A. Well, there was only two options, Mr Phillips, in 1999

14 and the two options were simple enough: that basically,

15 either -- people like B503, B508 and B629 decided what

16 was relevant for me, or alternatively I went into them

17 and through policy decisions and through meetings with

18 them, including myself with Kent and Mr Port, tried to

19 educate them as to what we thought was relevant.

20 Now, with hindsight, looking back ten years ago,

21 yes, you might suggest maybe you should have asked more

22 about this particular piece or that particular piece.

23 But clearly, in the terms of what we were working in in

24 1999, the approach that we took was different than had

25 ever been taken before in other investigations. It is

 

 

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1 not the approach that you would take now in 2009, but

2 that reflects many changes. But I have to say what

3 I said before: the approach taken today in 2009 is

4 nowhere like what has been suggested earlier from the

5 actual Panel because you can't -- basically as the SIO

6 is going to be in the box and cross-examined. You just

7 can't show -- he just isn't shown every bit of

8 intelligence about the deceased.

9 Currently the system inside the PSNI is there is

10 independent CID officers who go and look at everything

11 that relates to the deceased, and they decide what the

12 SIO should be seeing. But the SIO doesn't have it all

13 plumped down on top of him simply because they are

14 nightmares for disclosure and cross-examination in the

15 witness box.

16 So you see, we have improved on the system of 1999,

17 but there is nowhere we have introduced a system where

18 you just give everything to the SIO and let him decide

19 relevance.

20 Q. We will come back to the second of the points you make

21 in this paragraph, 115, we have on the screen later

22 under the heading of "Victimology".

23 Can I ask you now to look forward in your statement

24 to RNI-811-193 (displayed) because here, in summarising

25 your view on the missing intelligence, what it amounts

 

 

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1 to, as I understand it, is a conclusion by you that the

2 missing intelligence simply reinforced the view of the

3 case and the likely perpetrators that you had in 1999,

4 and maintained as we have gone over together, throughout

5 your time the investigation. Is that what you are

6 saying there?

7 A. Yes.

8 Q. In other words, as I understand it, in considering this

9 material, which you have only been made aware of very

10 recently, you are still applying the same test,

11 essentially: did it fit within the parameters of

12 relevance that I established in 1999? If answer yes,

13 then I should have been shown it because it was

14 important in that way. If it falls outside those

15 parameters, then, no, it is not so important. Is that

16 the approach you have taken?

17 A. The approach I have taken is to look and see how it fits

18 within the requests that I made. Not how it fits within

19 the hypothesis that she was killed by dissident

20 Loyalists, but how it specifically fits into the

21 original requests that were made in relation to the

22 intelligence. That's a bold statement to make sitting

23 here and because we are sitting in an open session I

24 can't give my reasoning to the Tribunal, which is

25 difficult for me because so many of the issues that you

 

 

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1 are raising here, I could possibly better explain, but

2 everything is blacked out. So you have got the SIO here

3 not being able to answer the questions properly, that's

4 what I'm saying.

5 Q. That's one of the difficulties that I highlighted at the

6 opening yesterday.

7 A. You understand why I have to say here there is an

8 explanation but I'm not being able to give it.

9 Q. We will come to it in the closed session. Can I just

10 pick up some of the specifics you have identified in

11 your heading of important and missing information, the

12 first at paragraph 71, RNI-811-169 (displayed),

13 Operation Shubr?

14 What you say there is that this operation, which was

15 a surveillance operation on your core or key suspects,

16 was not disclosed to you at all, and in particular you

17 say that you asked a specific question and received

18 a specific answer which didn't reveal the existence of

19 the operation. Is that the essence of it?

20 A. That's correct, yes.

21 Q. Can we look at the question RNI-914-349 and then the

22 answer after that.

23 Again, very difficult, but it is, I think, at 1, is

24 that right? At the bottom under "Requests"?

25 A. Yes, I think -- yes, there are two matters, yes, and

 

 

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1 that's the first one. Number 1 was a request. That's

2 correct, yes.

3 Q. And so far as the answer, we see it at 352 at the top?

4 A. Yes, this was the strange cryptic line, yes.

5 Q. And as I understand it, you interpreted that:

6 "Surveillance is ongoing in accordance with future

7 requirements."

8 To be, as it were, a negative; in other words, we

9 have got nothing to tell you about that? Is that

10 correct?

11 A. Yes, but also put an application in if you want

12 surveillance on these people, and they are appointing me

13 to -- as you see, the second paragraph, in 2 they were

14 saying put an application in in relation to surveillance

15 and they had a very small evidential surveillance team

16 in handling drugs operations, and we will pass it on to

17 them was the answer that they gave me at the time.

18 Q. Now, so far as that's concerned, presumably it wouldn't

19 have been a surprise to you to learn that there was

20 a surveillance operation in relation to these particular

21 characters?

22 A. Well, there were surveillance operations running at

23 various times. The difficulty I have, where I went --

24 I'm more aware of things now, but at the time I would

25 have had no knowledge of specific targets for

 

 

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1 surveillance operations. The only time I would have

2 been aware if one was running if something like a lot on

3 helicopter activity was on, that sort of thing.

4 Q. Obviously there is a danger in this exercise that you've

5 been asked to undertake by the Inquiry that you focus

6 very much on specific pieces of paper, specific pieces

7 of information, and it is important to remember, isn't

8 it -- I hope you'll agree -- that intelligence

9 information no doubt did come to you in various

10 different forms. It might have come orally, for

11 example, it might have been discussed in meetings. Are

12 you sure that in that sort of context, you weren't

13 informed about the existence of this surveillance

14 operation?

15 A. I mean, I'm pretty sure because we went back a second

16 time and asked the question, which is 8 April. You

17 might want to follow up with Mr Port and myself. I was

18 present with Mr Port asking about access to surveillance

19 logs and, you know, that's as clear now -- if someone is

20 saying now -- if we had told them about Shubr, we would

21 have expected him to say, "Yes, Colin, we will supply

22 you the Op Shubr logs next week", and no logs came to

23 us.

24 Q. That's what I wanted to ask you next. As far as you are

25 aware, Mr Port did not have access to those logs. Is

 

 

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1 that right?

2 A. Certainly I was unaware at any time. He never told he

3 had access to the logs.

4 Q. Let's have a look at your journal entry about that

5 meeting, as I understand it. It is at RNI-620-166

6 (displayed) and here you record -- again, it is

7 redacted -- the points made as issues to be addressed by

8 Mr Port. And there, do you see the penultimate one?

9 A. Yes.

10 Q. "Access to surveillance logs over the last six months"?

11 A. That's correct, yes.

12 Q. And can I take it that that was in fact a request for

13 surveillance logs in relation to the key suspects?

14 A. Yes, it was a follow-up meeting to the meeting described

15 in the previous document you showed. And, yes --

16 I mean, we were talking there about -- in relation to

17 the early intelligence that came in from both Belfast

18 and South Region where Mr Port was asking specific

19 questions about the -- about the suspects. And all

20 three actually -- all four actually -- I know one is

21 redacted -- but all four go to the heart of validating

22 the intelligence. And that was one of the things he

23 wanted, access to surveillance.

24 Q. So far as you are aware?

25 A. I never saw them, no.

 

 

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1 Q. Just moving from Shubr into particular kinds of report,

2 and here I am afraid again I have got to remind you

3 about the constraints we are operating under. They are

4 particularly important now.

5 A. I understand.

6 Q. Can I just look at your summary paragraph, RNI-811-182

7 (displayed)? And that's paragraph 117 where, before

8 getting into any detail, you helpfully set out what you

9 think all this amounts to, namely in the fifth line:

10 "I'm certain that important intelligence ..."

11 Then there are redactions:

12 "... claimed responsibility for missing explosive

13 device in Belfast and then the information ..."

14 Redacted passage:

15 "... UCBT before Mrs Nelson's death were never

16 disclosed to me."

17 What I would like to do now with you, please, is

18 just pick up some specific documents and comments that

19 you make. RNI-811-187 is the first and it is

20 paragraph 132 (displayed). What I would like to do,

21 please, is to keep that on the left-hand side of the

22 screen and put up on the right-hand side first

23 RNI-541-057, I think it is (displayed). That's the

24 piece of intelligence that you have been shown by the

25 Inquiry and you comment on in 132, isn't it?

 

 

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1 A. Sorry, I'm just -- yes, the bit on the right is the

2 text.

3 Q. Exactly. Namely that:

4 "A Belfast bomb maker had expressed support for the

5 LVF."

6 Now, in the next paragraph -- we have got it on the

7 screen, it is heavily redacted, 133 -- you refer to

8 a later piece of intelligence, this later in 1997, I

9 should have said. Can we have that on the screen now,

10 please, on the right-hand side. That's RNI-541-127

11 (displayed) and there is a reference there to

12 Mark Fulton (redacted) UCBT. Do

13 you see that?

14 A. Yes, I see that, yes.

15 Q. Again, that's the document you are commenting on, as we

16 can see, on the left-hand side.

17 Now, with those documents in mind, can you just

18 explain exactly why it is that you would have regarded

19 those pieces of intelligence as important in your

20 investigation?

21 A. Well, for two reasons. Obviously motive and the

22 similarity of attack just would jump immediately to

23 mind.

24 Sometimes, it is hard, I accept, to understand if

25 you are living in hotels and maybe being driven to here

 

 

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1 every day and go back to your hotels, just the level of

2 sectarianism that can exist in areas like North Belfast

3 and Mid Ulster where I have lived and worked at

4 different times in my life. So the idea that someone

5 like Mark "Swinger" Fulton and some of his associates,

6 for example, maybe (redacted) UCBT or any sort of

7 device, or would have connections to a well-known

8 Loyalist bomb maker in Belfast, is something any SIO

9 should seriously take consideration of.

10 And I mean this respectfully, but this is (redacted)

11 (redacted) intelligence compared to the matter you were

12 talking about earlier, about the fact that Mrs Nelson

13 may have attended a certain meeting. This is to the

14 heart of what you would expect as an SIO. This is

15 information on bomb makers, reference my request, and it

16 is very, very relevant to what we should have seen.

17 Q. Yes. Now, I would like to move on to another document

18 and another passage in your statement, please, also on

19 the topic of explosives. And on the left-hand side can

20 we have RNI-811-189 (displayed) and on the right-hand

21 side, please, can we have RNI-544-208 (displayed).

22 This concerns, doesn't it -- this intelligence

23 emerged (redacted) after the murder to the effect

24 that the UFF was missing one of its bombs, and although

25 they denied any involvement in the murder, they are, I

 

 

24

 

1 think it is, aware, that their missing bomb may or may

2 not have been the one under Nelson's car.

3 Now, in your paragraph 138 you describe this as

4 crucial intelligence and you also say that had the

5 intelligence been given to you, you would have asked to

6 speak to the Regional Heads of Special Branch for

7 Belfast to obtain more information. Can I ask you this

8 question: to what extent were you interested in pursuing

9 the Belfast connection in relation to the murder?

10 A. Well, if you look at the material we got in in relation

11 to document 55, 6624, 6139, a whole series of documents

12 that talk about -- where Special Branch Belfast are

13 strongly corroborating the first information coming in

14 (redacted) about who may have made the device,

15 and how that is corroborated -- and this is important --

16 how that is corroborated with our enquiries into the

17 forensic as to the likely location that items in that

18 bomb were either purchased or "obtained" for them and

19 how that connected back to a number of Loyalist bomb

20 makers, on top of the information that came in,

21 corroborating a movement, possibly, through the UDA in

22 Belfast from a number of sources that didn't give the

23 original information.

24 When you see those three or four things, that jumps

25 at you. That is part of the chain. It is certainly

 

 

25

 

1 something that seriously has to be looked at and it

2 does, like the previous one, seriously corroborate the

3 other intelligence that we were given. And yet again, I

4 can't understand in the light of policy decision 19,

5 things that are asked, first of all about anybody --

6 information, if obtained, that would indicate who was

7 involved in her murder. Her name is mentioned there.

8 And secondly, information on Loyalist bomb makers. This

9 talks about the movement of the device, the loss of the

10 device. I'm just amazed that I didn't see that

11 document.

12 Q. Thank you. On this topic, can we have, please, on the

13 left, RNI-811-109 (displayed), which is the passage from

14 your first statement, your due diligence statement.

15 Here, again, in the second bullet point -- this

16 comes in the context of your explaining what the

17 principal factors were that led to you believing that

18 Loyalists had been responsible. You refer there again

19 to the Belfast connection and in particular to contacts

20 with Belfast Loyalists. So can I take it that this is

21 very much in accordance with what you have just been

22 explaining to us?

23 A. Yes, there was other intelligence indicating this

24 Belfast end, and that's what I'm referring to there.

25 Q. Were you considering, therefore, that there may well

 

 

26

 

1 have been involvement other than simply in relation to

2 the device, which you have talked about, with Loyalists

3 with, if I can put it this way, connections to Belfast?

4 A. Yes, because we had information had come in from several

5 sources, some of it, I grant it, anonymous indicating

6 that there may have been clearly safe channels for

7 moving a device.

8 My knowledge of the several bomb makers in Belfast

9 who were making this, they didn't get into their

10 well-known cars and drive down the road with this in the

11 boot. So clearly there was a safe passage whereby this

12 material -- they were no different to the Republican

13 terrorists who did the same. So we were looking always

14 at the beginning in our hypothesis not just at who made

15 it: who transported it. I think it is paragraph 186 in

16 my first statement --

17 THE CHAIRMAN: Not too quickly.

18 A. Sorry, sir. Paragraph 186 in my first statement.

19 Before I had seen this undisclosed material, I have to

20 say. It does my highlight the significance of why we

21 were looking beyond the people who simply planted it.

22 MR PHILLIPS: Can we have that on the screen, please, on the

23 left-hand side, RNI-811-108 (displayed)? Is that the

24 paragraph you mean?

25 A. Yes, in particular in the third line where it starts:

 

 

27

 

1 "I did not restrict my enquiries ..."

2 And I go to the point of listing the various types

3 of conspiratorial involvement that would have ended up

4 with placing this device under Mrs Nelson's car. And

5 that would have included, as I said there, importantly

6 a number of people involved in this who may not have

7 known the end targets or even what they were carrying at

8 a particular time or who were involved afterwards in the

9 purpose of intimidation or alibis or getting rid of safe

10 telephones that would have been used, those sort of

11 things.

12 So that's the reason why this sort of material, that

13 fits into that approach that's shown in paragraph 186.

14 Q. Thank you. Can we just flick back to the page we were

15 looking at, RNI-811-109 on the left-hand side

16 (displayed)? Thank you.

17 Am I right in assuming that the final paragraph on

18 this page is one where you again are returning to the

19 theme of the connections that you yourself had

20 experience of before between organisations, paramilitary

21 organisations in North Belfast and South East Antrim,

22 assisting LVF in attacks?

23 A. Yes, I think it is important for the Inquiry to realise

24 that the time that we were talking about, a number of

25 organisations are dabbling with going into ceasefire, or

 

 

28

 

1 if they are on ceasefire, their prisoners have been

2 released and they realise that going back to claimed

3 attacks, attacks where they use their own code words,

4 could have jeopardised the freedom of prisoners who had

5 been released under the Good Friday Agreement.

6 Consequently, what we have on both sides is people

7 carrying out unattributable attacks, and I had been

8 involved in a number of investigations, for example, in

9 North Belfast in 1997, where it was clear that people

10 had subcontracted out, if I can use that terrible term,

11 a terrorist attack just on behalf of another

12 organisation who then claimed it. And then that

13 developed into the whole RHD thing, which was convenient

14 for everybody on the Loyalist side.

15 Q. Can I ask you this: would it be fair to say that some of

16 the individuals in these organisations based in Belfast

17 and South East Antrim, for example, were regarded as

18 rather more formidable in terms of their resources and,

19 if I can put it this way, expertise in this area than

20 some of your more local Mid Ulster LVF suspects?

21 A. Yes, it would be -- in terms of making the sophisticated

22 type of device that was used in relation to the death of

23 Mrs Nelson, clearly the ones that we had seen previously

24 that were connected by intelligence and investigative

25 actions to Loyalists, had tended to come from a number

 

 

29

 

1 of Loyalist bomb makers who lived in the Belfast area.

2 Q. And can I ask, does it go a little bit beyond that; in

3 other words, not just in terms of capacity to construct

4 devices but also experience and capacity to undertake

5 attacks?

6 A. Oh, no, definitely not because in the LVF in Mid Ulster,

7 you are talking about one of the worst sectarian murder

8 gangs that the Troubles ever saw. And I mean, we have

9 to be careful here. These are not Sunday school

10 teachers, these are very dangerous people and they

11 created havoc, particularly in the Nationalist community

12 across Mid Ulster and were a nightmare for the police

13 and security forces in terms of trying to bring them to

14 justice.

15 At the time in 1999, I had no knowledge in front of

16 me that they would have had any capacity to make this

17 type of device, but it is pretty clear from the

18 intelligence you showed me several minutes ago that that

19 was the case, and that they were interested and they had

20 been going beyond pipe bombs and just drive-by

21 shootings.

22 So clearly I underestimated their ability in that

23 area, and if I'd have had that, I wouldn't just have

24 been looking at Belfast in terms of the manufacture.

25 Q. So just picking up that point, which again you have

 

 

30

 

1 helpfully raised at this stage, in terms of what you

2 knew of the local key suspects, they hadn't been

3 involved in this sort of attack at that point, in terms

4 of --

5 A. No, they hadn't been involved certainly in constructing

6 a device, but I mean -- I have to be careful here.

7 Actually this is an easier attack for them to do than

8 some of the ones they did. These people were involved

9 in the death of Mr Brown in the -- at the Gaelic club.

10 They travelled far to other attacks to (inaudible) and

11 Dungannon and places like that which involved a lot more

12 technical difficulties for them than simply walking into

13 a quite suburban street and bending down and placing

14 something with some magnets on it under a car.

15 So it doesn't require any sophistication to have

16 planted this device. Is just required nerve -- and they

17 had it -- to do it.

18 Q. Now, continuing, if I can put it this way, the Belfast

19 and Antrim theme, can I have, please, on the left-hand

20 side, RNI-811-187, and on the right-hand side,

21 RNI-543-128 (displayed)?

22 Now, this, on any view, in its current form is

23 a spectacularly unhelpful document, but fortunately you

24 have made some comments on it which begin on the

25 left-hand side at the bottom of the page, when you had

 

 

31

 

1 the benefit of actually seeing what it said. Now, it

2 contains, as you put it, a list of persons who have

3 aligned themselves to the Red Hand Defenders, does it

4 not?

5 A. This is the -- the text, that's correct. There is

6 a list of five names.

7 Q. Absolutely. And as you have described them at the

8 bottom of the page on the left, which I would like to

9 turn over now to RNI-811-188 (displayed), it is a list

10 of the top players in the LVF in the Belfast and Antrim

11 area. And plainly, can I take it from all the answers

12 you have been giving so far, this is something that you

13 would have expected to see and wished you had seen in

14 the investigation?

15 A. That's correct, yes.

16 Q. Thank you. Can I just ask you, did you in the course of

17 your work seek to pursue in terms of your investigation

18 these connections, the Belfast and East Antrim

19 connections that you have mentioned already?

20 A. Yes. Well, certainly in relation to my time there,

21 there was clearly a series of attempts to validate, to

22 corroborate what we had got, both in terms of

23 questioning that went on through various of the

24 intelligence meetings and also in relation to certain

25 enquiries we carried out. For example, there was

 

 

32

 

1 enquiries carried out to a -- finds of timers and

2 explosives found in Belfast that we had spent a lot of

3 time with having a look at, to see what were the

4 similarities to the material that we had -- that was

5 used in the device.

6 Clearly the previous bit of intelligence had been

7 shown to us, you know, might have changed the extent to

8 which we carried out those enquiries. But they were,

9 within the information that we had at the time,

10 rigorously carried out. And if you look carefully at

11 the house searching that went on, a number of people who

12 were searched -- I can't remember exactly who is on this

13 list, but they clearly were Antrim-originated people

14 who, for the various feuds went on, had moved to other

15 addresses.

16 I certainly -- the policy book authorising searches

17 of their houses, looking for items that may be relevant

18 to the death of Mrs Nelson.

19 Q. Can I ask you, did you specifically seek Special Branch

20 intelligence in relation to, let's put it this way,

21 these sorts of individuals within the Belfast and East

22 Antrim areas?

23 A. Yes, I think I referred to it earlier in the validation

24 questions. There was a number of reports in there that

25 I raised on top of the -- on top of the sort of two

 

 

33

 

1 meetings that we had been sort of concentrating on.

2 I only give three examples. The nature of the

3 investigation meant that there was a considerable amount

4 of reports came from us, myself or Colin Port, I think,

5 to the Special Branch. But, for example, I -- it would

6 be page RNI-811-168 of my statement, if it helps.

7 Q. Can we have that on the left-hand side, please

8 (displayed). Yes.

9 A. You see at the bottom I mention document R1BA, which was

10 a series of questions to Detective Superintendent B503,

11 Special Branch, about intelligence. And I think that

12 was intelligence relating to certain aspects of these

13 types of people that we are talking about, put it

14 that way.

15 Q. This was something that you did shortly before leaving

16 the investigation --

17 A. Yes, there were several mentions there, over the page as

18 well, on page 24, the next page, RNI-811-169.

19 Q. Can we have that, please (displayed).

20 A. And these are not the only ones. There are lots of

21 other ones, but R1BF there, it actually says about

22 various intelligence linking a Belfast connection to the

23 murder. And there was dozens upon dozens of questions

24 on R1BH which raised from one of the Mid Ulster persons

25 but had lots of questions about what explosives he had

 

 

34

 

1 and his contacts to Belfast and other Antrim people.

2 When I say there is questions, some of them have got

3 50 questions on then which were raised off the pen

4 profiles. There was lots of other ones. On top of

5 that, you would have had the various intelligence

6 meetings whereby, frankly, you know, the Head of the

7 Intelligence Cell and those of us who were there were

8 asking specific questions: can you develop, can you get

9 us more on that?

10 If you look inside J404 as well and look at -- I'll

11 not mention their names, but I can think of at least

12 a dozen top Belfast, Southern Antrim suspects, that we

13 did enormous amounts of work in relations to -- their

14 associates, their descriptions, their telephone traffic,

15 the movements of their vehicles -- building up a picture

16 as to who they were and trying to see was there anything

17 that could move them into that area or be part of the

18 movement of the device at the relevant times, and those

19 are in J404 currently.

20 THE CHAIRMAN: Did you make a specific request to the Head

21 of Special Branch of Belfast and South East Antrim for

22 the disclosure of all intelligence reports relating to

23 Red Hand Defenders or the LVF?

24 A. The arrangements, sir --

25 THE CHAIRMAN: Could you answer the question.

 

 

35

 

1 A. Well, I will answer the question in my own words, if I

2 can. We didn't -- and my statement makes it clear that

3 the purpose of having a liaison officer was that the

4 enquiry team didn't send the requests to individual

5 parts of Special Branch. So when we put our requests

6 through, they went through to the two ciphered officers,

7 the liaison officer; one was a superintendent and one

8 was an inspector.

9 We had several meetings with key people, like the

10 Regional Head of Special Branch Belfast and South

11 Region, which were arranged for us, Mr Port and myself,

12 for example, to add additional points to it. But as

13 I said to your solicitors who came and asked me

14 questions about -- and it is in my second statement --

15 the agreed line of enquiry was through the full-time

16 liaison officer who was the relevant detective

17 inspector, and that was to ensure that our requests were

18 given the right priority when they went into

19 Special Branch and that they went to the widest possible

20 number of people to speak to.

21 But clearly, the agreement was that we wouldn't go

22 to the many parts of Special Branch and ask our own

23 questions. We had to work through the liaison team, and

24 that was the agreement at the time.

25 THE CHAIRMAN: But he was a South Region officer, wasn't he?

 

 

36

 

1 A. Yes, he was attached to South Region, that's correct.

2 THE CHAIRMAN: Yes.

3 MR PHILLIPS: Can I just ask you this question prompted by

4 the documents you have referred us to, which we have

5 referred to there at the top of the page: they were all

6 generated, as I said, in the summer of 2000, just before

7 you were promoted and moved out of the murder

8 investigation. That's correct, isn't it?

9 A. Yes, the dates -- yes.

10 Q. Yes. By that stage, the undercover operations which

11 collectively have been referred to Operation George had

12 been in progress for about a year, had they not?

13 A. Yes, that's correct.

14 Q. And we know that despite all the effort and ingenuity

15 that went into them, there had by that stage been

16 nothing generated in relation to the key suspects which

17 would have supported a prosecution against them in

18 relation to Rosemary Nelson's murder. That's also

19 correct, isn't it?

20 A. Yes, there is no clear admissions.

21 Q. Yes. You say as much in your --

22 A. Yes.

23 Q. Now, can I take it, therefore, that you appreciated at

24 this point that, given that you had spent a year trying

25 to obtain the sort of information, admissions, you

 

 

37

 

1 needed without success, that you were at this point

2 seeking to cast your net rather more widely; hence the

3 requests for information into Belfast?

4 A. That's not correct and, again, I can't answer it. D95

5 is full of names that are nothing to do with the three

6 people in Mid Ulster.

7 Q. Yes.

8 A. They are asking questions about people who are of

9 interest to us in 2000 and 2001.

10 Q. Yes.

11 A. And I think that is a complete mistake, to say that.

12 And those people who are named in these reports were

13 also of interest to us early on.

14 (Redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted).

21 So consequently, the date of that is nothing to do

22 with when we had an interest in that. It was the length

23 of time it took to organise the various arrangements

24 (redacted), and then the

25 various follow-up questions that came after it. So I

 

 

38

 

1 don't think the date indicates when we were interested

2 in it. It sometimes indicated when we could respond to

3 the material that we had.

4 Q. So we mustn't take the fact that these documents were

5 generated at this point as evidence that you had decided

6 in the light of what had happened, or in fact had not

7 happened, in the year of Operation George that it was

8 time for a thorough review of your original hypothesis?

9 A. No, that would be incorrect.

10 Q. And there never came a moment -- is this right? --

11 before you left the investigation when you thought it

12 would have been appropriate to review your original

13 hypothesis and consider whether it could stand up in the

14 light of subsequent developments?

15 A. No, I wouldn't accept that. I mean, I said those three

16 documents were driven by a specific review at a certain

17 time. But, I mean, I said yesterday that in terms of

18 our approach to the -- we are using a word we didn't use

19 at the time, but the hypothesis, as you call it --

20 certainly it was something that I felt was challenged

21 and we asked questions about regularly. But I would not

22 say that those three documents indicate a change in

23 direction or somehow looking -- this was just

24 a continuation. And, you know, with hindsight now, now

25 I have seen what you are asking, clearly it will be

 

 

39

 

1 a matter for us in submission. But there are plenty of

2 earlier documents that we can put in the system that

3 relate to these types of questions.

4 Q. Can I just ask you very briefly about three documents,

5 items of intelligence, that you say you didn't see but

6 you don't ascribe importance to? The first at

7 paragraph 123 -- and this is RNI-811-184 (displayed).

8 And so far as the document is concerned, I think it is

9 at RNI-909-071 (displayed) and the substance will be at

10 RNI-909-072 (displayed). This came in the same month as

11 the murder, very close to the murder in time, and the

12 point here simply is that the LVF, as you put it in your

13 statement, were financially broke following a drugs

14 bust. That was one of their activities, wasn't it?

15 A. Yes, all terrorist organisations in Northern Ireland had

16 such activities for financing; not always drugs, but all

17 had those types of activities.

18 Q. Was it not of relevance for you to consider whether in

19 those circumstances, where they were broke, it is likely

20 that they would have taken on what was inevitably going

21 to be an extremely high profile murder at the time when

22 their finances were seriously depleted as a result of

23 a drugs bust?

24 A. No, they were always broke. I mean, in the sense

25 that -- this is hand-to-mouth feeding in relation to

 

 

40

 

1 financing. We are not talking here about the Trustee

2 Savings Bank. We are talking about a group of people

3 who, in other parts of the United Kingdom, would be seen

4 as just a racket -- an organised crime gang. But in

5 Northern Ireland, they have an additional feature, which

6 is politically inspired murder.

7 Now, all organisations -- these organisations, in my

8 experience, could multitask. I have investigated

9 a number of Republican incidents where, at the same time

10 as getting vehicles to plant -- put bombs in them in our

11 town centres, they were smuggling fuel and cigarettes,

12 and the vehicles were coming from the same source.

13 So, yes, we knew that they were involved in drugs.

14 We had known for a long time, the CID. CID officers who

15 were attached to the investigation came from the

16 division where the seizures had taken place.

17 Special Branch were telling us what the CID knew in

18 terms of the seizure. And I mean, that is -- in certain

19 of our documents we see it being mentioned, that it

20 could relate to -- some of the traffic between them and

21 some of the key Belfast players could also relate to

22 drug conversations as well as "can you bring me down

23 a certain package" conversations. We were open to that.

24 But there is nothing unique in the fact that

25 terrorists in Northern Ireland at the same time can be

 

 

41

 

1 planning like the INLA were, in my experience, at times,

2 to shoot police officers and to rob a Securicor vehicle

3 at Ulster Bank, sometimes two days apart, the same

4 organisation.

5 Q. So you don't think it of any significance that if they

6 found themselves in this, as it says there, broke

7 position, the last thing they would want to do is to

8 attract a great deal of police and other attention to

9 themselves by committing a very high profile attack such

10 as this?

11 A. No, you are dealing with people who are motivated by

12 sectarianism and I don't think, you know -- the INLA at

13 times had no money and they still went out and shot

14 police officers. That's the reason for their existence

15 and I have no doubt that the same applies here, that the

16 money issue was something important for them, not

17 because -- it is nothing to do with buying and

18 purchasing items. The money is important to them

19 because that buys the drink and the other things, part

20 of their social lifestyle. But it didn't stop them when

21 the opportunity arose to attack a Catholic or to carry

22 out any other type of sectarian murder.

23 DAME VALERIE STRACHAN: Could I just ask for your

24 experience -- I mean, the particular examples you have

25 just given are of the sort of "go out and shoot

 

 

42

 

1 a Catholic" variety, if one can use that awful

2 expression. If one is planning a fairly sophisticated

3 operation, what would the financial issues be? Would

4 they have to have money? Would they have to pay people?

5 What sort of money would be involved? Because it does

6 sound different from a straightforward shooting.

7 A. If you put the [redacted] to the side, which was stolen

8 anyway, the rest of the items in this device you get for

9 less than a tenner, bluntly.

10 I investigated one in the north west of the Province

11 after this case. All the items bar the explosive were

12 bought in B&Q. There is nothing difficult. The tilt

13 switch is used for -- an alarm -- at ordinary times,

14 tilt switches are used in people's houses for alarm

15 mechanisms. A Tupperware box is a Tupperware box,

16 a length of wire, a battery, the detonators are stolen

17 and the explosive are stolen. It is not expensive. It

18 is dearer to go out and buy a Kalashnikov.

19 DAME VALERIE STRACHAN: That describes the materials. Do

20 they have to pay anybody?

21 A. Not in my experience -- and this is where I have to be

22 careful. The intelligence clearly indicates that one of

23 the key bombers made these in bulk and he gave them to

24 a number of organisations. And there is nothing in the

25 intelligence that says anybody was paying him. He made

 

 

43

 

1 them and he didn't use them, and that's clear in the

2 intelligence that we have.

3 MR PHILLIPS: Can I just come to one more specific piece of

4 intelligence, which you refer to in a heavily redacted

5 paragraph, 126, on RNI-811-185 on the left (displayed).

6 on the right-hand side, can we have RNI-548-387

7 (displayed) and the substance at RNI-548-388, please

8 (displayed)?

9 Now, I would like that taken off, please,

10 RNI-548-388. Taken off the screen, please. Thank you.

11 So just doing what we can with your paragraph in

12 your statement, could we look at what you say about it

13 at the bottom of the page. And could you, please,

14 explain why this intelligence was not, in your view, of

15 relevance to the work that you were doing in the

16 investigation?

17 A. Well, my explanation is exactly what is in my paragraph

18 in my statement there: I have nothing to add to it.

19 That's exactly what I believe:

20 "The fact that the intelligence revealed that

21 Rosemary Nelson had allegedly been told about these

22 murders by the defendant Colin Duffy simply would

23 indicate, if true, that a solicitor may be doing

24 something that she should not have done. But that could

25 be said of a few other solicitors in Northern Ireland

 

 

44

 

1 and elsewhere: They may know or suspect what their

2 clients do, but nevertheless proceed to represent them.

3 "There was nothing new in intelligence to show that

4 Colin Duffy may have had a motive to kill

5 Rosemary Nelson, and there is nothing in the

6 intelligence to indicate that Rosemary Nelson was

7 speaking publicly in relation to what she knew about

8 him. There is, therefore, nothing in the intelligence

9 that's relevant by showing a motive to kill her.

10 "If there was anything in the intelligence that

11 would have helped me in relation to a motive to kill

12 her, then I would have expected to receive it. But this

13 intelligence does not fall into that category."

14 Q. So nothing here by way of potential new line of enquiry?

15 A. That's my view, yes.

16 Q. Now, I just want to conclude on this by asking this

17 question: do you think, having looked at all of the

18 pieces of intelligence in order to prepare your

19 statement and having looked at just a few of them this

20 morning, that the investigation was materially affected

21 by the non-disclosure to you of this intelligence?

22 A. Yes. And in my statement I divide it between items that

23 I think were of significance. Some of those items refer

24 to intelligence -- and you haven't shown them all --

25 that your solicitors showed me. And the remaining ones

 

 

45

 

1 that I think I particularly relevant are in the second

2 statement of M540, where he has produced for the

3 Tribunal a chart of those relevant intelligence -- you

4 have shown me three or four today. The three in

5 particular that I have highlighted that you have

6 highlighted, I actually say in my statement, there is

7 a sense of amazement why I don't get it. And clearly

8 I try as best I can to show -- so much redacted -- that

9 various steps that any investigation would have taken

10 had it got those. And I think that they certainly

11 prevented Mr Port, myself and the other members of the

12 senior management team developing lines of enquiry that

13 would have been very relevant to her death.

14 Q. Now, in the light of the intelligence that you have seen

15 as a result of the Inquiry's process, have you wished

16 that you had set parameters for Special Branch rather

17 more widely than you did?

18 A. Could you, please, put up PL19 again, please?

19 Q. Can we have RNI-616-777, please (displayed)?

20 A. Obviously the first -- number 1 -- request number 1 and

21 request number 6 we can set to the side. It is a given

22 clearly that I think number 1 should have been provided

23 and number 6 was provided. But it is the ones in

24 between:

25 "SB will provide intelligence on threats to

 

 

46

 

1 Mrs Nelson and actions taken."

2 I think that if there was matters arising from her

3 relationship to Mr Duffy or the aspects of the

4 Garvaghy Road, her membership or attendance, that had

5 given rise to threats, those should have been shown

6 to me.

7 In the course of preparing for this Tribunal, I have

8 seen the statements of a considerable number of

9 Special Branch officers, attached to which are the

10 exhibits relating to the alleged affair. And on the

11 facts that I read in those, I have seen nothing that

12 indicates that they failed to disclose anything to me

13 indicating that her affair, for example, would have

14 caused a threat or had been causing a threat.

15 Another point I would say to this Tribunal is

16 bearing in mind the relationship that existed between

17 police officers and Mid Ulster, and you probably have

18 seen that from other security force members and some

19 police officers in relation to Mr Duffy, I have no doubt

20 that if there was the slightest hint that Mr Duffy had

21 should you -- had been threatening Mrs Nelson and

22 wanting her harm, my desk would have been covered like

23 confetti with white sheets coming from Special Branch,

24 telling me that she had been killed by one of her

25 Republican clients. And that didn't happen. And with

 

 

47

 

1 the long experience of being a police officer in

2 Northern Ireland, which I'm sure a number of the legal

3 people present who have served in Northern Ireland, been

4 in Northern Ireland, would tell you, that didn't come

5 out at all.

6 Look at number 3, intelligence on Red Hand Defenders

7 suspects. That wouldn't change in my mind. And

8 number 4, intelligence on Loyalist bomb makers, that

9 catches nearly everything that we should have been told.

10 It is a very good question, but at the same time if it

11 had been a Republican bomb maker and they had

12 information, that would have come under number 2. And

13 really important too for me is number 5:

14 "Intelligence obtained of those suspected in

15 involvement of the murder."

16 "If obtained" shows it is not just stuff you have,

17 it is stuff that you have coming in and that catches

18 everything in relation to her murder.

19 So everything that came in a year later saying, "We

20 have suddenly found that her attendance at the Garvaghy

21 Road Association, that she was being targeted there by

22 Republicans or Loyalists", that should have come in to

23 us. But there is nothing in the system.

24 We have now obtained information that Mr Duffy was

25 not only -- was no only aware that she may or may not

 

 

48

 

1 have spoken about his involvement in a murder, but was

2 annoyed about it and said, "I will go and sort that

3 person out", and that had come in (redacted)

4 (redacted), that should have been told us. But that

5 wasn't told us.

6 I think those catch everything that an SIO would

7 have deemed to be relevant in the context of 1999, that

8 you would have been looking for. I accept that the

9 systems are different today, that there is a different

10 approach taken to it. But bear in mind it is still

11 today the SIO has to provide that type of document.

12 That's standard procedure now and he sets out his list

13 like that, and that's what I did there.

14 THE CHAIRMAN: Under 2, you say:

15 "Special Branch will provide intelligence on threats

16 to Mrs Nelson and actions taken."

17 Would not the reader of that assume that you were

18 dealing with a situation of specific threats to

19 Mrs Nelson and actions taken in respect of those

20 threats?

21 A. Yes, it is -- it is a threat to her, not -- how would

22 I say? A general threat to all solicitors in the

23 Province. I'm talking about, yes, a threat to a person,

24 a threat to her in terms of her own personality,

25 specifically to her. That's what that refers to.

 

 

49

 

1 THE CHAIRMAN: You see, it is different from:

2 "Special Branch would provide intelligence that

3 Mrs Nelson it under threat."

4 Isn't it? Or "at risk"?

5 A. I don't read it that way, Chairman, I'm sorry. I read:

6 "SB will provide intelligence on threats."

7 On the plain reading of that, that anything that you

8 have indicating a threat to Mrs Nelson, you will tell

9 me, and that's it.

10 Now, in the context of what happened certainly in

11 1999, if you look at a number of threat warnings that

12 went out from Special Branch, they were massive, they

13 just erred on the side of caution. Quite often they

14 just put the stuff out, in my experience. So clearly

15 I wanted anything that they had that indicated -- you

16 know, SB will provide intelligence on threats to

17 Mrs Nelson.

18 It doesn't say SB will provide intelligence on

19 Loyalist threats; it is not in any way caveated. It is

20 a general thing on threats. So anything to do with her

21 attendance at meetings or any allegations that she had

22 had a bit of private life that had given rise to

23 threats, I would have expected to have been told.

24 THE CHAIRMAN: But it wouldn't cover, would it, intelligence

25 about terrorist activities in the Southern Region?

 

 

50

 

1 A. What type of --

2 THE CHAIRMAN: Any intelligence activities involving acts of

3 terrorism or proposed acts of terrorism. It would only

4 be those that were specifically, according to the

5 intelligence, related to Mrs Nelson?

6 A. Yes, but Southern Region, with respect, covers

7 Crossmaglen to Portadown to Armagh to Cookstown. It

8 covers vast areas where Republicans would be operating.

9 It covers areas where the UVF are not -- the LVF were

10 still in control or the UDA. It covers many areas.

11 So you have to be -- there is no -- I mean, as

12 an SIO it would have been, I think, not correct for me

13 to have simply been told the next day every current IRA

14 threat to soldiers in Jonesborough or, you know,

15 Crossmaglen on my desk. You have to somehow define it.

16 South Region is a huge region. It had a full Army

17 brigade, for example, operating in it and it had more

18 police officers than about ten or 11 English police

19 forces in that one region. So I think you have to, for

20 that reason, somehow define down the type of

21 intelligence that you want in relation to threats.

22 MR PHILLIPS: Can I just take you to the conclusion, as it

23 were, on this aspect of your evidence, which we find in

24 paragraph 148, RNI-811-192 (displayed), because here you

25 suggest that the likely explanation for the

 

 

51

 

1 non-disclosure, which you say there deprived the SIO and

2 the OIOC of opportunities to develop some key lines of

3 enquiry -- you then refer to the motivation -- obviously

4 you can't be sure about that, but you suggest it --

5 being source protection, and due to their relative

6 inexperience in investigating crime, both of which

7 leading to a failure to appreciate the importance of

8 some of the material.

9 A. Yes, both of those explanations are important in the

10 sense that the first one, I think, relates to some of

11 the key intelligence. (Redacted)

12 (redacted), I am assuming that Special Branch officers would

13 have known what I would have immediately done if I was

14 given it, (redacted)

15 (redacted). So clearly

16 that has to be accepted.

17 The second one, the relative inexperience in

18 investigating crime, it's clear to me on the basis of

19 other experiences that I have had, would relate to

20 something like Operation Shubr; that they wouldn't have

21 fully appreciated what we would have done with the type

22 of material that would have come from the surveillance

23 operation and how we would have used it.

24 MR PHILLIPS: Sir, would that be a convenient --

25 SIR ANTHONY BURDEN: Coming to that conclusion, Mr Kinkaid,

 

 

52

 

1 which enabled you to put that comment in your statement,

2 you had, prior to coming to that conclusion, had you,

3 dismissed any more sinister motives on behalf of

4 Special Branch as a body or Special Branch as

5 individuals?

6 A. Bear in mind --

7 SIR ANTHONY BURDEN: Bearing in mind our Terms of Reference,

8 of course.

9 A. Bearing in mind your Terms of Reference, and if you see

10 in particular the comments that have been made about me

11 from other people in the intelligence community, the

12 various things that Mr Phillips put to me yesterday

13 afternoon, I'm trying to be as balanced as I can in

14 relation to this.

15 I accept that I might have a slightly stronger view

16 than some of my colleagues in the senior management team

17 and that may reflect my experiences in Northern Ireland,

18 but I can't get inside their heads. I do think that

19 there was a strong belief that if, in any way, it would

20 lead to the exposure of a source, you didn't get it.

21 And some of the most difficult experiences, if it helps,

22 in my life, for example, has been sitting with police

23 officers' widows and widows of members of the community

24 and trying to get them to understand, when we have done

25 a review of a case, why intelligence was not given in

 

 

53

 

1 relation to the death of their loved one. And when

2 you -- when investigations have included just the

3 interviews of the people concerned, sometimes the people

4 concerned who didn't share it were colleagues of those

5 who died and it was absolutely clear it was an

6 overriding consideration, to protect sources.

7 Whether -- for example, when I mentioned about the

8 O'Neill murder, in that particular one, I can't

9 understand, despite my verbal and written requests and

10 Mr Port's, I believe, telephone call, conversation, why

11 we weren't given that. And it is a difficult one,

12 really. I can only surmise.

13 SIR ANTHONY BURDEN: Can I just take it one stage further,

14 if I may, and just ask about the point in question, the

15 end bit. I fully accept what you said in that answer,

16 but from your previous experience and from dealing with

17 murders where there had not been the disclosure you

18 would have expected, that drew you to certain

19 conclusions about the motive of Special Branch in the

20 murder of Mrs Nelson?

21 A. That's correct, yes.

22 SIR ANTHONY BURDEN: Could I just ask that point in

23 question, if I may? In coming to this conclusion, are

24 you satisfied in your own mind that it was not for the

25 purposes of covering up collusion involving

 

 

54

 

1 Special Branch in the death of Mrs Nelson that these

2 disclosures were not made?

3 A. I'm satisfied that that wasn't the motive to cover up

4 collusion.

5 MR PHILLIPS: Would that be a convenient moment, sir?

6 THE CHAIRMAN: Yes. Bearing in mind the time we have been

7 sitting, I think the stenographer deserves 20 minutes.

8 (11.35 am)

9 (Short break)

10 (11.59 am)

11 THE CHAIRMAN: Yes, Mr Phillips.

12 MR PHILLIPS: Now, Mr Kinkaid, can we turn to your first

13 statement, the due diligence statement, and to the

14 paragraph we have visited on a number of occasions, 187,

15 which is under the heading "Reasons for targeting

16 Loyalist suspects" at RNI-811-108 (displayed).

17 Here, as I said earlier, I think, you point to

18 a number of indicators and the first is intelligence,

19 the next, media, and the claim of responsibility, the

20 UVIEB, motive and contact, et cetera.

21 What I would like to do is to start by looking at

22 the first of them, intelligence, and specifically early

23 intelligence, and just to get up on the screen the

24 briefing sheets that you received very, very early on

25 from Special Branch which dealt with the individuals we

 

 

55

 

1 have referred to before as the core suspects.

2 So can we have, please, RNI-548-168 (displayed)?

3 And obviously there have been redactions, but this is,

4 as I understand it, how the intelligence came in to you

5 from Special Branch; is that right?

6 A. That's correct. That was the initial way and then it

7 developed into what I call suspect profiles.

8 Q. We will come to that in a minute. So that's the way it

9 came in to you?

10 A. Initially, yes.

11 Q. Thank you. So far as the next briefing form is

12 concerned, can we see RNI-909-078, please (displayed).

13 The previous one, I should have said, is 28 of 99. This

14 is 27 of 99, and whereas the other one referred to two

15 individuals playing an active role, this one says:

16 "Intelligence indicates that ..."

17 And then there is a name redacted:

18 "... constructed and supplied the UCBT device which

19 was used in the murder of Rosemary Nelson."

20 And in terms of the rest of the enquiry that we have

21 been talking about now for some time, the individuals,

22 identified in these forms, the sheets, remained at the

23 centre of your attention, did they not?

24 A. Yes, certainly they referred to -- they were one of

25 a group of core suspects --

 

 

56

 

1 Q. Thank you. Now, can I ask you this question: were you,

2 at the time of being provided with this intelligence,

3 given any indication as to the quality of it?

4 A. As I recall, it was just the standard quality that all

5 Special Branch intelligence had.

6 Q. And I think it is true -- I think you have already said

7 this, but I want to get your specific confirmation --

8 that you weren't given any detail as to the

9 circumstances in which the intelligence had been

10 provided, the sort of intelligence it was?

11 A. No. Two words on that: I couldn't and there wasn't. I

12 think they are both relevant.

13 Q. Thank you. So far as Ronnie Flanagan's evidence on this

14 is concerned, his recollection at this time, in the

15 early stages, was that Special Branch were very

16 confident about their intelligence that they passed, as

17 it were, the key information to the investigation. Were

18 you given that impression by the relevant Special Branch

19 officers in the early stages, that they were very

20 confident about it?

21 A. Yes, I recall, I think, speaking to B567.

22 Q. Yes.

23 A. I don't think he gave it to me personally. I have

24 a funny feeling these were given to 540, my deputy. I

25 was doing something else somewhere else in an

 

 

57

 

1 investigation that day. But I do think that I did have

2 a conversation the next time I saw 567, and I mean, it

3 was clearly indicated to me that this was something they

4 believed.

5 Q. Now, so far as that is concerned, can I take it,

6 therefore, that having been provided with the

7 intelligence in this form, one of the things you did was

8 to seek to discuss it, find out more about it in

9 a conversation with B567?

10 A. Well, I spoke to him, yes. There was nothing further

11 coming in relation to it and then we went into what I

12 would call the full validation attempts.

13 Q. Yes.

14 A. In relation to it.

15 Q. So far as they are concerned, again, just to confirm

16 what you are telling us in paragraph 69 and 70 of your

17 second statement, RNI-811-167 and RNI-811-168 -- if we

18 could have both on the screen, please (displayed) --

19 there you set out, as I understand it, the various

20 things that you did in order to validate the

21 intelligence. And what you are telling us, as I

22 understand it, is that this process of validation

23 continued during the investigation. Is that a fair way

24 of putting it?

25 A. That covers sort of half of the validation, which is the

 

 

58

 

1 validation by asking questions and the -- of equal

2 importance -- and I'm very careful how I word it here

3 because of the redaction things -- but is the strong

4 validation by corroboration, that also came in in

5 relation to some aspects of these sheets, these two

6 intelligence sheets.

7 Q. Now, how much are you able to say in this open hearing

8 about that corroboration?

9 A. Yes, I can say some things about it.

10 Q. Thank you.

11 A. The second sheet that you had referred to the person, as

12 I recall, who constructed the device.

13 Q. Yes.

14 A. And you then find that, in relation to that, I had --

15 prior to that actually, I had asked a question on the

16 day after the murder on the Special Branch document you

17 looked at before the break --

18 Q. Yes.

19 A. -- relating to Loyalist bombers, that I remember.

20 Q. Yes.

21 A. And what actually came back to me was a series of

22 excellent, as I see it, intelligence reports that came

23 from Belfast Region, completely separate from the (redacted)

24 (redacted) first set of documents, particularly

25 document 51 -- and I mentioned this morning, 6624, 6139,

 

 

59

 

1 6140, are only a sample of the relevant intelligence

2 documents coming out, which indicated to me that the

3 person named in the second sheet you showed clearly had

4 made previous devices, had obtained items for the making

5 of devices that were additionally corroborated to the

6 forensic examinations that we carried out.

7 I had contacts with the people in Mid Ulster who

8 were mentioned in the first sheet, I had later devices

9 used the similar type of material and, quite

10 significantly, I had one previous device he had made had

11 failed. And one of the odd things about our device is

12 explained by that in the sense that I think he

13 overcompensated for an earlier problem that he had and

14 ended up by doing something in our device that was well

15 over the top in terms of what was required.

16 This call came separately -- I'm only using that as

17 one chain. There is lots of other things. But that's

18 the sort of things that arose out of the meeting in D95

19 where I asked for clarification and the specific

20 request. And that came from Belfast Region through one

21 of the Special Branch desks in Headquarters, and I think

22 they are significant.

23 The point I was making this morning -- and

24 I suggested for the closed session -- is that what I

25 haven't been able to say is that one of the documents

 

 

60

 

1 you showed me this morning, in particular, at least one

2 of them, would be relevant to -- the undisclosed ones

3 would be relevant yet again in relation to this, but I

4 couldn't go into the detail obviously.

5 Q. Yes. Now, you have talked very clearly there about

6 corroboration in relation to the information in the

7 second of the forms, in relation to the bomb maker?

8 A. Yes.

9 Q. Was there any corroboration in terms of intelligence --

10 again, bearing in mind the constraints -- in relation to

11 the information in the first sheet?

12 A. Yes, there was. Good stuff came in, South Region crime

13 intelligence. I appreciate it is a difficult one -- I'm

14 not asking for it to be put up, but R1Y I would point

15 you to as the relevant report in relation to that, which

16 showed a connection.

17 There was also, I believe, other documentation that

18 came in in relation to one of those two suspects and his

19 liaisons or close work with perhaps members of the Royal

20 Irish Regiment.

21 Q. That came rather later, though, did it not? In, I

22 think, November of 1999; is that right?

23 A. Yes, in relation to that. Those were intelligence

24 matters --

25 Q. Sorry to interrupt you, but so everybody else can follow

 

 

61

 

1 the intelligence that you are talking about and the

2 reference you have just made to the member of the

3 Royal Irish Regiment, is that the individual that you

4 deal with specifically in your due diligence statement?

5 A. I stand to be corrected here, but there is two bits of

6 intelligence: There is R1Y, which talks about

7 a specific member of the RIR; and then (redacted)

8 source is coming in (redacted) about one of the people

9 in your first sheet in relation to the involvement of

10 RIR.

11 Those are two different (redacted) and they are about

12 (redacted) weeks apart, (redacted) -- his name is

13 mentioned in the context of a soldier. What's important

14 for us too is that the (redacted) -- it is not just

15 received like these documents, (redacted) --

16 (redacted) and let's

17 say, (redacted), challenge, the material that is coming

18 (redacted) in that case. So it is not even

19 a matter of that's what you were told, you know, we were

20 able to (redacted) get the

21 relevant information.

22 I have kept that to -- that's the intelligence-only

23 corroboration. Clearly you would to go on to talk about

24 issues like previous experience to do with the

25 batteries, right into particularly -- what is of

 

 

62

 

1 particular relevance to us at times was the telephone

2 context and what we got, (redacted)

3 (redacted)

4 (redacted) in relation to the connections that existed

5 between various of these Loyalist Mid Ulster and other

6 dissident Loyalists in the North Belfast and East

7 Belfast area.

8 Q. Thank you very much. Now, all of that information you

9 have given and the answers you have been providing to us

10 suggest that you accept, and would have accepted at the

11 time, that it is important with intelligence to

12 challenge it and to validate it, rather than

13 unquestioningly rely upon it?

14 A. Yes, and I'm -- I think it is important to mention that

15 you are doing this in the context of the first couple of

16 weeks, for example, when you don't have a right under

17 Government regulations to have access to the answers

18 that you are asking at times because I wasn't developed

19 vetted. And you can't underplay that issue, and that

20 wasn't an issue where Special Branch were, you know,

21 putting a new condition in; these were national security

22 sources covered by the strap systems.

23 So consequently some of the material wasn't -- I

24 didn't immediately get access to, and Mr Port didn't

25 although he came and we got developed vetted up.

 

 

63

 

1 Q. That was at a relatively early stage of the

2 investigation, wasn't it? He arrived on 6 or 7 April.

3 The point here, and trying to keep it as simple as

4 possible, made in Mr Ayling's report, for example, is on

5 the basis of what he has seen, what he is saying is that

6 there wasn't a rigorous and, as he puts it, fundamental

7 validation process in the investigation until long after

8 you had left it, indeed until Mr Provoost's review was

9 commenced in 2003. What is your answer to that, please?

10 A. I'm going to choose my words carefully again. Mr Ayling

11 never spoke to me or asked me in terms of what I was

12 doing, so he is doing this from afar, I accept that.

13 Q. Yes.

14 A. And I don't see anywhere in his report where he did

15 a comparator, where he looked to see what was made

16 available, what did other RUC SIOs ask for and what did

17 other RUC SIOs be given in terms of validation. I never

18 had an investigation where -- despite what I have said

19 about the disclosure problem, that I ever got access to

20 the amount of material or even been able to go and speak

21 in front of two ACCs at Headquarters. That was before

22 Mr Port arrived and put those types of questions.

23 I can't recall an investigation where, for example,

24 something of the quality of D51 came to me from

25 Special Branch, and I have emphasised the quality of

 

 

64

 

1 that sort of report again.

2 Q. Again, just to help everybody -- because you are using

3 references which a lot of people in this hearing won't

4 be familiar with -- can we, for everybody's note, as it

5 were -- because you have mentioned it now on a number of

6 occasions -- D51, am I right in thinking that that's at

7 RNI-909-016 (displayed), if I can just put that on the

8 screen? I'm not asking you to make further comment

9 about it, just to make sure that we have got the right

10 document. Is that what you are talking about, D51?

11 A. Yes.

12 Q. Thank you. Sorry I interrupted you, but I'm just trying

13 to make sure that everybody is following your evidence.

14 You were dealing with the question of --

15 A. Yes, Mr Ayling.

16 Q. Yes.

17 A. Yes, sir. Really I'm not here to pass comment on

18 Mr Ayling's report in terms of -- I'll leave that to the

19 submissions that our legal team put together. But in

20 relation to the specific question you have asked me,

21 from my perspective what was the mark of the standard of

22 due diligence was how I went about this investigation in

23 comparison to what any other rigorous professional RUC

24 investigation would have been at that time in

25 Northern Ireland, not what could have been obtained by

 

 

65

 

1 validation of crime CHISs run under the ACPO Crime

2 Committee in Essex or Kent.

3 So consequently, I found some of his comments unfair

4 and not objective because I wasn't sure who he was

5 comparing me with. Was he comparing me with an SIO in

6 his own home force when he was there, or was he

7 comparing me with how SIOs in Belfast investigating

8 Republican murders or in South Region investigating

9 other Loyalist murders, say, would have done?

10 So on that basis I believe that the evidence that

11 I have put here shows a rigorous approach to try and get

12 behind the words in the document. And it is important

13 to mark my words -- that rigorous approach was

14 throughout the time I was there and since having to come

15 back and ten years later read myself into this inquiry,

16 it is absolutely clear that the people who came after me

17 as SIO and as OIOC continued to do that long after

18 Mrs Nelson had died, and that we did ask questions.

19 And finally, I think the approach we took to

20 validation in all its forms goes a long way to explain

21 the questions you have been asking me yesterday and this

22 morning in relation to how it ruffled so many feathers

23 in other parts of the organisation and in the

24 intelligence community. It was because we didn't sit

25 and just simply say thank you very much for your

 

 

66

 

1 intelligence and let the Special Branch go out to do the

2 work, but within the confines that we were working and

3 the systems that existed then, we went out of our way to

4 challenge and try and get that information.

5 Now, it may not be the way that Mr Ayling thinks his

6 SIOs behaved in his home force, but it certainly was

7 more than any other RUC investigation I was on, in terms

8 of trying to validate intelligence and the material we

9 have been given.

10 Q. Thank you. Just asking a couple of slightly more

11 specific questions about this, in relation to the review

12 you have obviously been doing, preparing your evidence,

13 and considering now just the period when you were

14 involved, those 17 months from the start of the

15 investigation, with hindsight do you think that there

16 were moments -- and I'm going to use as an example the

17 moment before the proactive undercover operations began

18 in the summer of 1999, for example -- when a more

19 rigorous, more fundamental review of the intelligence

20 and the way it was pointing could and should have been

21 undertaken?

22 A. No, I don't accept that. I'm not mentioning names here,

23 but twice in the first number of weeks senior

24 Special Branch officers said to me, "Sam, you are no

25 longer investigating Rosemary Nelson, you are now

 

 

67

 

1 investigating Loyalism". And that reflected their view

2 that they couldn't understand the amount of challenging

3 and questions that went in.

4 So in as much as I can't say to you on -- you know,

5 on 4 August at 9 o'clock, I sat down with my team and we

6 said, "Let's do a review". And the reason why I can't

7 is because this was a continual thing that happened, and

8 it certainly happened at the intelligence meetings that

9 Mr Port set up. Part of their role was simply to review

10 and challenge the intelligence.

11 That's where that took place in my experience, and I

12 can remember many discussions that, you know, clearly

13 indicated at times that we weren't just simply accepting

14 the first case that had come out on those two documents

15 that you showed me.

16 Q. So far as that remark you have just told us about,

17 a remark obviously made to you, is that in fact what

18 happened in the course of the operations which made up

19 Operation George: that it became a much wider

20 investigation into, as you put it, Loyalism and

21 particularly Mid Ulster Loyalist activity, rather than

22 something simply focusing on Rosemary Nelson?

23 A. No, those comments weren't made to me about Operation

24 George; they were made to me in relation to the various

25 requests for information that I was asking for.

 

 

68

 

1 Q. Yes.

2 A. I mean, if they had been -- if the sort of grounds for

3 the operation, the later Operation George applications

4 had been too wide, I'm sure the Surveillance

5 Commissioner would not have approved them. But in

6 relation to the comments that were made to me, those two

7 comments, those are earlier on, those relate to the sort

8 of things that were coming out of the meetings at D95

9 and the meetings that Mr Port now had.

10 It was clear that some people felt that because we

11 were moving away from the three suspects on the first

12 two sheets and asking questions about, for example, the

13 document you showed, the other possible bomb makers in

14 Belfast, that we weren't just -- you know, the feeling

15 was, "We have told you who the bomb maker is", and we

16 said, "No, we are interested in these other Loyalist

17 bomb makers too". That's where that feeling came from,

18 that you were investigating Loyalism as distinct from

19 the narrow band who we've told you killed Mrs Nelson.

20 Q. Are you saying that there was a resistance on the part

21 of these Special Branch officers to the idea that your

22 enquiry might be widened beyond your core suspects?

23 A. No, not a resistance. I take you back to what I said:

24 two key issues with Special Branch. It is the second

25 issue, not the business of them not -- for example --

 

 

69

 

1 not the business of them being concentrating on source

2 protection, but the second issue of him not fully

3 realising why CID takes certain lines in their

4 investigation.

5 You know, and I tried to explain to them, "Can you

6 give me an initial piece of intelligence that says Mr X

7 made the bomb?" Then when I tried to corroborate that,

8 another branch area says, "Well, actually, Mr X, Mr Y

9 and Mr Z have been making these bombs", so don't be

10 surprised if I come back and say, "Tell me about Mr Y

11 and Mr Z. I want equal profiling and intelligence and

12 background checks on Y and Z that I had on X." And I

13 think that was something they had to learn: that they

14 weren't setting our priorities. And once we got the

15 material, we took the relevant action that was required.

16 And that's the context in which those comments were made

17 and they are understandable.

18 It does show -- back to your point about Mr Ayling

19 beforehand -- this was new to them. Other SIOs and

20 other investigation teams had not asked these type of

21 questions certainly in a formal sense and hadn't gone

22 beyond them straight to the ACC and asked these type of

23 questions. So that's why I sort of have some problems

24 with Mr Ayling's judgment on the extent to which

25 attempts were made to validate this intelligence.

 

 

70

 

1 Q. Thank you. Can I just move now to the second indicator

2 that you mention in 187, which is the media? We can see

3 what you say about it at RNI-811-110 (displayed).

4 Now, in terms of trying to work out how significant

5 this indicator was, can I assume that these reports

6 would have been given less weight than, for example, the

7 Special Branch intelligence that we have been

8 looking at?

9 A. You have to judge each one on its merits. Clearly there

10 are some -- after a period of time in Northern Ireland,

11 it is clear there are some journalists who specialised

12 in crime reporting and particularly on terrorist

13 reporting. Other papers were -- let's say the

14 Sundays -- the Sunday tabloids, you know, had the usual

15 stories that gather attention and our attitude towards

16 this would have been exactly the same, may I say, to

17 senior investigators in the Met and other forces in

18 England who would have, at times, contacts with certain

19 crime reporters who would have sort of their own

20 contacts in the community. So consequently, over

21 a period of time you knew that certain reporters could

22 give you something.

23 The third bullet point is particularly significant

24 here on this page -- I never met this journalist, but

25 became particularly significant because it was clear to

 

 

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1 us very quickly that she may have been talking to the

2 person who was responsible for the code, the coded

3 message, that came in, and really became interesting to

4 me at a later search of that person's house where that

5 was corroborated and where, in particular your

6 exhibit 106, which goes right back to the start of

7 Mrs Nelson's threats, became very significant to me.

8 And I think you have exhibit 106 in the bundles.

9 Now, I use that because it might be interesting --

10 if you want to put 106 up -- to show how this journalist

11 coming in and speaking.

12 Q. Hang on a minute. I'm trying to find 106. Do you mean

13 the "Man Without a Future" pamphlet?

14 A. Yes.

15 Q. For everybody's note, that's RNI-106-270 (displayed).

16 Perhaps we could have that on the screen. Is that what

17 you mean?

18 A. Yes, and do you want to few minutes to show how that is

19 relevant to a press release and why an SIO would take

20 that seriously in Northern Ireland? Would that be

21 helpful?

22 Q. Yes, it certainly would.

23 A. If you look at that document, and here I talk as someone

24 who comes from Northern Ireland, where religion,

25 I accept, is much more important than many of my English

 

 

72

 

1 relatives would indicate. But there is words that are

2 very important in that.

3 The second word, "Rome", the reference to

4 St Michael's Grammar School in line 6 -- 5 it is, where

5 he:

6 "... learned to trade in death, spurred on by the

7 priests and nuns."

8 The issues that are raised, for example, of

9 "Emond Stack, the Jesuit priest", the comments made

10 about Rosemary Nelson and where she got her injuries

11 from, the reference to the Jesuit, (redacted), and

12 the particular thing that resonates in the --

13 covenanting on the strong Presbyterian tradition in

14 Northern Ireland, the reference to the Hungarian

15 Protestants.

16 Now, unless you come from a background that I come

17 from, there is cryptic words running through that which

18 are of significance that, frankly, show that it doesn't

19 come from someone who is a member of Opus Dei, but

20 clearly indicates it comes from somewhere in the extreme

21 fundamentalist group in Northern Ireland.

22 Now, Martina Devlin after Mrs Nelson's death,

23 interviews the man who we believe wrote that document

24 because it is found in a form in a deleted section of

25 his computer, and his house was full of material

 

 

73

 

1 relating to these types of theological positions,

2 including Hungarian Protestants and Huguenots and

3 various aspects like that.

4 What was particularly interesting in her case was

5 that she referred to the bizarre nature of some of the

6 pictures that were on his wall and items -- I'll just

7 talk about that -- which were in the house when we

8 arrived. And why that's important, (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted).

16 These were not insignificant events. People died

17 during these attacks, and this (redacted), clearly we

18 know from the telephone traffic and the intelligence,

19 was regularly down with the (redacted)suspects named in

20 your (redacted) sheet and in contact with their associate (redacted)

21 (redacted).

22 So consequently, what we have is corroboration here

23 from a -- say, a media source, talking to a document

24 found in a house search, going back to the first two

25 documents and going into the whole business of how was

 

 

74

 

1 the claim of responsibility processed and put in.

2 That's why that media -- using that as an example, why

3 on its own -- why I would be interested in that story.

4 That's the connections that brought us to that story.

5 Q. Thank you very much.

6 What I'd like to do is to --

7 THE CHAIRMAN: Could I just ask something about this

8 document? With your background and your knowledge,

9 would you have regarded that document as a very

10 threatening document so far as the Catholics mentioned

11 in the document are concerned?

12 A. Yes. I mean, certainly in the reading of it, it would

13 give me rise for a concern in relation to the people who

14 were mentioned in it. I think the piece in indented

15 text:

16 "Ask not for whom the bell tolls, it tolls for you

17 ..."

18 I'm not sure how you read that in relation to

19 Mr Mac Cionnaith, for example, other than as some sort

20 of implied threat. You would have to know who was the

21 organisation behind it, but clearly -- and what we found

22 out about that was after Mrs Nelson's death, but that

23 document does include material that would indicate to

24 me -- if you knew particularly where it came from, it is

25 a matter of indicating some sort of threat to some of

 

 

75

 

1 the people who are on it, yes.

2 THE CHAIRMAN: Thank you.

3 MR PHILLIPS: Can I just intervene because there may be one

4 or two puzzled looks in relation to it.

5 There are two editions of it and this is the one we

6 have not so far been concentrating on. Could we put

7 that to the left, please, and I think RNI-106-276

8 (displayed) is the other edition. And that is the

9 version, as the evidence has told us anyway, that was in

10 issue here with the NIO and the RUC, and you will see --

11 I'm giving evidence here, but I hope it is helpful --

12 the differences are material in relation to

13 Rosemary Nelson because on the right-hand side, you see

14 the description there is very simple, that she is

15 a former bomber, whereas the left-hand side it doesn't

16 use that precise expression; it simply says:

17 "... who just happened to blow herself up while

18 planting a bomb."

19 I don't know, Mr Kinkaid, whether you are able to

20 assist us as to which version was found on the computer

21 that you were talking about earlier?

22 A. I can't, I'm sorry.

23 Q. Now, with that, as it were, by way of introduction, what

24 I would like to do secondly, again, in order to ensure

25 that everybody is following the course that you are

 

 

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1 taking, is to look with you at the relevant part of your

2 statement on this because you have an entire section

3 devoted to it. It begins -- if we can have this on the

4 left-hand side, please -- at RNI-811-117, paragraph 198

5 and if we can have the next page on the screen, that

6 would help (displayed).

7 Thank you very much.

8 Here, obviously there are redactions, and in

9 particular of names, but this is the section, is it not,

10 in your statement in which you describe the search and

11 what you found; is that correct?

12 A. Yes, that's correct.

13 Q. And we see at the bottom of the right-hand page that you

14 refer there to the text of the pamphlet?

15 A. That's correct, yes.

16 Q. And turning over, please, to RNI-811-119 (displayed),

17 the reference to the code word, and this is the code

18 word in this specific case, the Rosemary Nelson case, is

19 it not?

20 A. This is the specific code word used for the first time

21 with the old code word attached in relation to the death

22 of Mrs Nelson, yes.

23 Q. Thank you. And then at the third bullet point, a Bible

24 in which, again, that code word was underlined?

25 A. Correct, yes.

 

 

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1 Q. And the final bullet, as you see, is a copy of the

2 article to which you have been referring?

3 A. Yes.

4 Q. But I would like you to look also at the penultimate

5 bullet point because there you also found another

6 pamphlet that we have looked at, namely the "Monster

7 Mashed" pamphlet?

8 A. Yes, I don't think that was on the computer. I'm trying

9 to remember. I think that was a hard copy. If I'm

10 wrong, somebody will correct that no doubt. The lawyers

11 can check it. Yes, there was certainly a hard copy in

12 the house, yes.

13 Q. Was there anything that you discovered in your searches

14 which indicated that the individual was responsible for

15 that pamphlet, "The Monster Mashed"?

16 A. I would have to check on that. I'm sorry, I can't

17 recall, but I'm sure someone can check from the

18 investigation team for you and -- because what we did in

19 this case very quickly was all these key documents, with

20 their key words, we put on a search programme. We

21 treated this computer hard disk in the way you would

22 treat a hard disk taken in a fraud or paedophile

23 investigation.

24 So we drew up dozens -- hundreds of key words, some

25 relating to Loyalism, but more specifically to issues

 

 

78

 

1 around Rosemary Nelson. I think we -- and that's why

2 these popped out.

3 By the way, these were deleted terms, for example,

4 the password, and also the "Man Without a Future"

5 document. But I'm pretty certain it was a hard copy and

6 I would have to check whether any of the key words in

7 the "Monster Mashed" document, Mr Phillips, were found

8 in the hard disk when we did that check. But that can

9 be checked for us.

10 Q. I would like to go on the left-hand side to RNI-811-117

11 (displayed) and your paragraph 198, where you tell us

12 from that first week of the investigation you believed

13 that individual to be actually behind that claim of

14 responsibility in this case; is that correct?

15 A. In this particular case, yes.

16 Q. And can I ask you this question: during the rest of your

17 time on the investigation, did you have reason to change

18 that view?

19 A. I use the word "behind", I think, carefully there

20 (redacted) he

21 didn't lift the phone himself. He was -- the person who

22 drafted quite often the texts that at times went through

23 in relation to the claims of responsibility and selected

24 the religious-type code words.

25 So consequently -- when I'm saying "behind it", that

 

 

79

 

1 certainly remained and was strengthened by what I found

2 in relation to the searches of his house, and has not

3 necessarily been changed by the undisclosed material

4 because I still think he would have provided the message

5 and the code word.

6 Q. Thank you. Just finally on this, at RNI-811-119 -- if

7 we could have that back, please, on the screen

8 (displayed) -- this is paragraph 203 that we had on the

9 screen earlier -- what you tell us there, having set out

10 all of the material that you found, is that in fact this

11 individual was not charged with an offence arising from

12 the claim of responsibility in this case; is that

13 correct?

14 A. Yes, for the reasons said there, yes.

15 Q. Yes. Now, can I just ask you a couple more questions

16 about the claim of responsibility since we have very

17 much moved into that area.

18 It is another point you say is an indicator in your

19 paragraph 187. The information that you were provided

20 with, and it may be that you already knew, is that the

21 Red Hand Defenders' claim was sometimes used to deflect

22 suspicion from organisations which had in fact carried

23 out attacks; is that correct?

24 A. That was my belief, yes.

25 Q. Yes. And, indeed, in a report that we have in the

 

 

80

 

1 bundle -- at least I hope we do -- at RNI-713-076

2 (displayed) -- not a very informative report. I knew we

3 would eventually come across one of these fascinating

4 documents, yes.

5 I'm going to try another approach and see whether in

6 fact the text, the relevant text, has been quoted in the

7 Ayling Report, RNI-608-074 (displayed). I should say

8 that the Ayling Report has, of course, been subjected to

9 the same careful process of redaction as the documents

10 and so I'm content to rely on what we find there.

11 Here, you see in the section of the report where

12 Mr Ayling is considering the extent to which reliance

13 was placed on the claim of responsibility, he quotes

14 you, amongst others, at the top of the page -- and this

15 is, I hope you will take it from me, a quote from that

16 redacted document, where you said:

17 "These have been passed round everybody, LVF, OV,

18 RHD. All could have and probably were using them. In

19 the end it was a joke. We used to say it was the only

20 organisation where everyone got the code."

21 So presumably this claim of responsibility in terms

22 of the use of the Red Hand Defenders' name was something

23 about which you had to keep a pretty open mind?

24 A. Yes, because after -- remember, after some time the

25 gentleman concerned (redacted), that we are talking

 

 

81

 

1 about, not too long into the investigation. He knows he

2 (redacted). So I'm not giving anything out here. He

3 knows who I'm talking about; (redacted)

4 (redacted)

5 (redacted).

6 So consequently these were in general use and they

7 were used by other organisations, particularly an

8 associate organisation that he had friends in, called

9 the Orange Volunteers. And I have a funny feeling --

10 and I would have to check -- but the second couple of

11 sentences in that I think I may be quoting (redacted)

12 (redacted). But it is not something I would disagree

13 with because what actually had happened was that so many

14 of them had gone out. And that's why we spent so much

15 time chasing up the Martina Devlin line and then chasing

16 the gentleman concerned's car and its movements from

17 Belfast, and who he visited in the first (redacted) sheets and

18 who he specifically spoke to (redacted) and the fact

19 that he was driving at or near the scene of the murder,

20 I think 45 minutes/an hour he is down in the Mid Ulster

21 area. He is many miles from home.

22 We did clearly look seriously to see that -- this

23 was not just one raid -- throwing this out to an

24 organisation to use, and when we went -- and, again, I

25 think a real honest attempt to validate what connection

 

 

82

 

1 there was between the two -- what we find is that we

2 have -- I have no doubt because I was in the house

3 during the house search -- we have material that

4 indicates he had a very great interest in Mrs Nelson,

5 and it wasn't for her good.

6 Q. And you are referring there to the pamphlets we have

7 been looking at and talking about?

8 A. It is difficult, I appreciate, to understand the types

9 of people, the attitudes that were in relation to

10 Mrs Nelson. And I think as an SIO you have to be

11 careful -- just because you are used, in

12 Northern Ireland, to some things that you say that you

13 don't soften it.

14 I mean, this is a house where there was boxes of

15 Sunday school teaching material in the midst of which

16 there was Loyalist paramilitary material and Combat 18

17 material. I mean, I think the nearest I could describe

18 to the attitude of the people is the survivalist groups

19 in America. So you have to take that seriously just

20 because at times some of the code words had been used.

21 And, for example, that reference comes, I think, from an

22 interview of (redacted)

23 (redacted). But as an SIO I still had to seriously

24 look at that because this was a very dangerous man, and

25 clearly we had to look seriously to see what connections

 

 

83

 

1 there was.

2 Q. Just trying to draw some slightly more general points

3 out of this, what you are saying suggests that you were

4 aware, as the SIO, that there were parts of the

5 community in which Rosemary Nelson was hated?

6 A. Clearly, yes, what she stood for, yes, and -- you know,

7 yes, in terms of what she stood for, who she

8 represented, there were people who had a logical hate

9 based on their sectarian motives, yes.

10 Q. To be absolutely blunt about it, the "Monster Mashed"

11 pamphlet is a celebration of her murder, is it not?

12 A. It is, indeed, yes.

13 Q. Were you able to discover when it was produced and where

14 it was circulated?

15 A. This is where I would have to -- I can make

16 a suggestion. Another big line of enquiry that we

17 carried out was in relation to IT material that was

18 coming on the Internet from East Tyrone.

19 I do know that that had material in relation to

20 Mrs Nelson's death was afterwards and we seized lots of

21 computers -- I can't remember whether that was the -- it

22 was the "Monster Mashed" issue that drove us there, but

23 certainly there was very offensive material in relation

24 to her death which had been coming out of there and on

25 the Internet. That involved a team not only obtaining

 

 

84

 

1 it to see whether it was lines of enquiry, but also

2 myself taking action, I think, with the various Internet

3 providers to get it stopped in relation to some of the

4 stuff. I can remember the first time going to get those

5 types of special warrants for that.

6 So clearly there was things we looked at. I can't

7 definitively say whether we traced the "Monster Mashed"

8 one, but it was that type of investigation we were

9 running at the time on post-death Internet material that

10 was offensive about her.

11 Q. Now, so far as the claim of responsibility is concerned,

12 you will have seen again the suggestion made by

13 Mr Ayling is that the claim itself had a significant

14 influence on the direction of the investigation. And

15 what he suggests -- again, it is a very crude summary,

16 no doubt -- is that that claim needed to be, as it were,

17 reappraised in the light of, for example, the sort of

18 point we have on the screen here, that these -- the

19 relevant code words were used by all sorts of

20 organisations, and the RHD were used as a flag of

21 convenience. What's your response to that, please?

22 A. I think he massively overstates his case there and it

23 bears no resemblance to the documents that are in J404

24 or to the types of actions that we took.

25 We never, ever suspected that individual members of

 

 

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1 RHD did it because there wasn't all that many of them.

2 It was a small organisation that gave a cover. And even

3 the documents that came in at times naming people who

4 were supposed to be associating with -- RHD basically

5 was one man, and bit by bit his people got less because

6 his associates got caught or just left him.

7 I think we have given in the background papers and

8 the context document, which I haven't in front of me --

9 but there is a section on RHD. It might be useful to

10 throw it up, if you could, because then you can see what

11 I said in relation to it. By the time 1999 came, what

12 did this organisation consist of.

13 Q. I will try and throw it up. Do you mean the summary of

14 the murder investigation or the outline of evidence?

15 A. No, the document you started me with yesterday, which

16 was the background context in Northern Ireland.

17 I thought I had a small section about the various

18 organisations.

19 Q. I think you did. And that will be in appendix C of your

20 statement. We can see it at RNI-620-124 (displayed).

21 So there it is, up. Is that the section you are talking

22 about, first of all?

23 A. Yes, that's correct. And I think if you look at just

24 those two paragraphs at page 7 and to the top, which was

25 put in five or six months ago, this, where I talk

 

 

86

 

1 about -- let's call him the suspect -- about how this

2 suspect had developed this organisation in relation to

3 the Protestants of Portadown. And then we say:

4 "His associates are believed to be involved to

5 various degrees in two murders. He was present at a

6 protest when Constable O'Reilly was fatally wounded. He

7 was behind the claim of responsibility for the attack

8 ..."

9 And that is out of his deleted hard disk, the same

10 one where I found the references to the "Man Without

11 a Future".

12 Q. Yes.

13 A. And the reason why I mention that one is that is full of

14 a whole series of theological comments justifying the

15 death of what they call a Catholic police officer --

16 that's the first time I had ever seen that in my

17 career -- which fits into the theological comments you

18 find in the "Man without A Future":

19 "Close associates of [blank] were involved in the

20 murder of Brian Service."

21 I have said:

22 "[Blank] was clearly a dangerous character who had

23 access to explosives. He [blank] and

24 a few years before Mrs Nelson's death --

25 I'm talking about them. I think you have gone back

 

 

87

 

1 a page there, rather than forward.

2 Q. Yes, can we go to RNI-620-125 (displayed) and,

3 Mr Kinkaid, can I just ask you to keep an eye on our

4 redactions.

5 A. We had a conversation this morning and I was meant to

6 keep my eye ...

7 Yes, and in late 1999 he was arrested and it relates

8 to [redacted]. Now, this is important:

9 "That said, it was clear that the RHD never had

10 active service units in the way the UVF or LVF had.

11 This was known to me early in the investigation from

12 personal experience."

13 Everybody we are talking about is from North Belfast

14 so far:

15 "... and SB briefings. In fact, the RHD were never

16 seen as a coherent or structured organisation. It was

17 merely a loose grouping of dissident Loyalists who were

18 satisfied with the directions organisations like the UDA

19 or UVF were being steered by their leadership."

20 Now, context is important here. Remember a few

21 months before, the UDA and UVF leadership, their

22 political wings had turned up at Stormont with the

23 gentleman currently now who is doing the Middle East

24 thing on behalf of Mr Obama, and saying the big forms,

25 they had joined the peace process on the

 

 

88

 

1 Good Friday Agreement and their prisoners had come in.

2 That's where these dissident Loyalists come from. We

3 are talking only a few months after that particular

4 event:

5 "However, the violent history of RHD figures such as

6 ... and their known contacts to Mid Ulster LVF clearly

7 meant their possible involvement in the murder of

8 Mrs Nelson had to be investigated. One factor did

9 become clear was that organisations supposed to be on

10 ceasefire like the UDA or UVF, found those claims of

11 responsibility a useful way of masking their

12 involvement."

13 (Redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted). And consequently, that's

21 the background to the RHD that we provided five or six

22 months ago, and that's the context from which I was

23 approaching this.

24 Yes, they did strange things, they gave out their

25 codes. But this gentleman had connections to the first

 

 

89

 

1 two people mentioned on your first intelligence sheet

2 you showed me, had -- clearly was in their company at

3 times, visiting their associates in Mid Ulster, had been

4 heavily involved in the Drumcree situation. Then when

5 we did his house, we found a whole variety of things

6 that showed that clearly Mrs Nelson was a person of

7 negative interest, could I say, to him in relation to

8 the material that was in his house.

9 Q. Thank you. I'm going to turn to another topic, please,

10 and it is another of the indicators that you mention in

11 paragraph 187 of your statement, which is where we

12 started out on all this. Perhaps we can look at that

13 together and have on the screen RNI-811-111 and

14 RNI-811-112 (displayed), because that's where the

15 section finishes. And here under "UVIED" you set out

16 some comments about the device itself, the explosive

17 device that killed Mrs Nelson; is that correct?

18 A. That's correct, yes.

19 Q. Now, so far as that is concerned, as I understand it,

20 what you are telling us there is that the device itself

21 was another indicator of Loyalist involvement in the

22 murder, and you highlight four points: one, that the

23 Provisional IRA had not used devices like that since the

24 early 1990s in Northern Ireland; the source of the parts

25 which made up the device; intelligence received about

 

 

90

 

1 the bomb maker -- and in a sense we have covered that in

2 considerable detail already; and finally, the point

3 about the removal of the battery serial number.

4 Now, is that a fair summary of the points you are

5 making there?

6 A. Yes, as I see it, yes, those four areas, yes.

7 Q. So far as the forensic investigation of the device and

8 the issue that a great deal of time and effort was spent

9 on similar devices issue, am I right in thinking that

10 that was run by M540?

11 A. Yes, that was often the case at my time there, that the

12 deputy SIO would have handled the forensic, looked after

13 the exhibit officers and dealt with the details of that,

14 yes.

15 Q. You will perhaps be relieved, therefore, to hear that

16 I'm going to leave all that for M540, the detail of the

17 forensic work that was done, and just ask you a few

18 questions about the points that you raise, which don't

19 include the similar devices point, just focusing on the

20 matters we have looked at.

21 The first really concerns your belief that there

22 was, as it were, sufficient expertise in the Loyalist

23 organisations to produce a device of that kind. Can

24 I take it that here we come back to the intelligence

25 that you received -- and you have told us how it was

 

 

91

 

1 corroborated -- in relation to a particular bomb maker?

2 A. No, that would be incorrect, Mr Phillips.

3 Q. Thank you.

4 A. That wouldn't be correct.

5 Q. Right. Please tell me what the correct answer is then.

6 A. That was one factor. I tried to mention before that the

7 previous experience that people like myself and 540

8 had -- I was in Belfast Region between 1994 and 1998.

9 During that time some of these devices went off. In one

10 case I was the senior detective at the scene, the very

11 first one mentioned in the D51 document.

12 Now, I was quite surprised when I saw some

13 Mid Ulster commentators passing remarks about this as

14 a strange thing, Loyalists couldn't have done this, this

15 is too sophisticated. They must just read the Portadown

16 Times, the local press, because what had been happening

17 for several years in Belfast was that there was a chain

18 of these particular devices that went off and, for

19 example, the first one with a military commander, an

20 alleged military commander of the IRA, a senior

21 Republican in Ardoyne, had a device placed under his

22 vehicle which good fortune didn't end in any death.

23 It was a much more difficult operation where the

24 Loyalists were concerned than anything that they had to

25 carry out in relation to what happened in Lurgan in

 

 

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1 1999. Now, I was at that scene and it is indelibly in

2 my memory because of the amount of negotiations we had

3 to do just to get our forensic retrieved from the

4 particular location.

5 But that's why I'm saying -- that's in my memory.

6 There were several other incidents where I would go to

7 the monthly meeting of the senior detectives in Belfast,

8 and they were happening not in my area, but other

9 detectives then would be talking about the other

10 incidents and it was clear that there was a growing

11 sophistication and a growing expertise amongst certain

12 Loyalists in making these devices, which weren't really

13 terribly complicated.

14 Once you see -- any electrical background, there is

15 not a lot of complications, and you are in an

16 organisation that can get you detonators and explosives.

17 So consequently, that was equally important to anything

18 coming in.

19 I also knew -- and this is important -- on the basis

20 of my previous experience and also intelligence that

21 come in, that there wasn't just one person doing this.

22 Hence I think on 7 April, you will see me having to

23 suggest strongly to Mr Phillips who had wanted to -- who

24 had just come back and told us a second time now about

25 an interview or some sort of conversation that he had

 

 

93

 

1 had from forensic, where he said, "This is all one

2 bomber and this is an opportunity for us to go down by

3 evidence by design." And I tried to highlight to him

4 that that didn't fit in with what I knew and the obvious

5 problems for evidence by design, or systems as it is,

6 called as an investigative tool.

7 So, you know, that shows that there was awareness in

8 terms of sophistication very early in my head and it

9 didn't just come from the intelligence that came in.

10 MR PHILLIPS: Sir, it is 1 o'clock. Would that be

11 a convenient moment?

12 THE CHAIRMAN: Yes. We will adjourn until 2 o'clock.

13 (1.00 pm)

14 (The short adjournment)

15 (2.00 pm)

16 THE CHAIRMAN: Yes, Mr Phillips.

17 MR PHILLIPS: Now, sir, before we resume with our questions,

18 I should just say I have been reviewing our progress to

19 date and, mindful of the fact that we have a closed

20 session after this one, what I'm going to propose is

21 that Mr Kinkaid and I cover as much ground as we can by

22 half past three, a slightly longer session than usual,

23 at which point we will have the necessary break to go

24 into the closed session. And that means -- and perhaps

25 Mr Kinkaid will be pleased to hear -- that I propose to

 

 

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1 leave all the questions about the device, not just the

2 forensic questions, over to M540.

3 So what I would like to do now, Mr Kinkaid, please,

4 is to ask you just a couple of questions about the next

5 indicator you refer to in your statement, which is

6 motive and contact, i.e. contact between the key

7 individuals in the period before the murder. This is at

8 RNI-811-113 of your statement (displayed). It is in the

9 same hugely long paragraph, 187. Do you see that?

10 A. I do indeed, yes.

11 Q. We are going to leave motive to one side and talk only,

12 please, about contact, and what I think you are saying

13 in essence there is that the contact between the core

14 suspects on the weekend of the murder was, in your view,

15 supportive of their involvement in it. Is that a fair

16 way of putting it?

17 A. No, that wouldn't be fair. I think I say clearly "in

18 the months before the murder" --

19 Q. Right.

20 A. -- rather than the weekend.

21 Q. Okay, thank you very much. Now, so far as that is

22 concerned, it is right, isn't it, to say that in

23 relation to the contact between them, you were not in

24 a position to say for certain what the nature of their

25 discussions was?

 

 

95

 

1 A. No, that's correct.

2 Q. Yes.

3 A. I just knew there was contact.

4 Q. Yes. We will see what you produced in this regard,

5 first, please, at RNI-912-071 and RNI-912-072, if we

6 could have both on the screen, please (displayed).

7 Again, this is a very heavily redacted document, but

8 as we see from the left-hand side, it is your

9 hypothesised sequence of events for the organisation and

10 planning of the Rosemary Nelson murder.

11 A. No, that's not correct. That is the office manager

12 putting that into the system as a report that I have

13 handed to him. That's not my signature at the bottom.

14 It may be helpful --

15 Q. Hang on a moment, did you reject any part of the

16 hypothesis he was putting forward?

17 A. Who is he?

18 Q. Well, the person you have just been telling us was

19 responsible for drawing it up?

20 A. In relation to this?

21 Q. Yes.

22 A. It was simply somebody presenting their views.

23 Q. Let's leave the question of authorship to one side, if

24 we may. Was that the hypothesis in relation to contact

25 between individuals that you, as an investigative team,

 

 

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1 were following?

2 A. No, I wouldn't say that.

3 Q. In what respects was the hypothesis you were following

4 different?

5 A. The document clearly indicates in at least eight places

6 that the hypothesis is a conditional statement. You

7 have -- without -- it is important to mention this. You

8 have words like possibly: possibly, whatever this may

9 indicate, this suggests, this may indicate, it is

10 possible, it is possible, this may be. We have to know

11 who produced this.

12 This was produced by an analyst, and basically what

13 had happened in the first couple of weeks, we had

14 carried out a number of financial background checks on

15 the LVF and that brought me into contact with people I

16 hadn't worked with before, who were a small team of

17 analysts drawn from outside intelligence agencies --

18 that was their background, that's all I will say -- who

19 worked at Crime Department at Headquarters. And in the

20 course of speaking about various aspects, they said, "We

21 have got some new computer stuff that can look at

22 telephones", and they produced a number of charts. And

23 this was at the front -- and the reason why I'll always

24 remember it, there was a long discussion between me and

25 the analyst whether the first word actually existed in

 

 

97

 

1 the English language, whether you could

2 turn "hypothesis" into an adjective. That's one of the

3 things that always sticks in my mind. And in relation

4 to this he gave me this. He clearly didn't want to be

5 putting their names on this.

6 So I spoke to the other members of the team and

7 said, "This has been produced, this is one possible

8 explanation of the contacts between the phones", and

9 I put it into the account as you would do as an SIO.

10 Of course, I handed it in -- you can see at the

11 bottom, I think that is either the office manager or the

12 receiver's initials, DSU Kinkaid. It is not a thing I

13 would normally call myself. It is R1D that's the

14 reference for the report. That's where it comes from.

15 That's how it came into the system.

16 Clearly there are other reports which you do not

17 have in your bundle here, but there were also a number

18 of reports from the person who was doing the telephone,

19 analytical report, sent up to me, which are in J404,

20 which also show how we were looking at the various

21 tracks that were going on to what has euphemistically

22 been called the (redacted), and other different

23 types which has to be seen along with this. And then

24 a later assessment that I have seen that was carried out

25 by people after me, including Mr Provoost in relation to

 

 

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1 what was known about the information.

2 Q. The simple point is this, isn't it, surely in terms of

3 telephone contact: you weren't in a position while you

4 were involved in the investigation to rule out, for

5 example, the possibility that the contact between them

6 related to drugs?

7 A. There were three possibilities: related to killing

8 Mrs Nelson; related only to drugs; or related to both

9 killing Mrs Nelson and to do with drugs.

10 Q. And that was a possibility which was recognised when the

11 matter was considered much later on by Mr Provoost in

12 2005. That's the document I think you are referring to.

13 Is that right?

14 A. Yes. Well, I mean -- yes, the -- but I think it is

15 clear from the analysts -- I'm not sure how much you

16 have seen -- analytical documents that have come out of

17 a murder enquiry, but this was one of the first times

18 this was produced in Northern Ireland. And basically

19 the analyst even is not overstating the cases because

20 I have quoted you the eight sort of conditional things.

21 They are not saying that this is definitely two people

22 talking about putting a bomb under Mrs Nelson's car.

23 The analyst is open and has made it this a conditional

24 thing, because it is a hypothesis, as I say.

25 Q. Just to make good what I was saying to you earlier, if

 

 

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1 we look, please, at the Provoost report -- and that's

2 RNI-914-290, it begins, and the relevant section for our

3 purposes is at 295, RNI-914-295 (displayed) -- so far as

4 you will see in the substance under "Patterns" -- it is

5 very difficult to make sense of it because of the

6 redactions -- but the point he is making there about

7 halfway down the page we have on the screen is:

8 "Although there is no evidence/intelligence to link

9 this drugs find to any of the core nominals, given the

10 active involvement of ..."

11 Then there are three names:

12 "... in the drugs scene and then the closeness of

13 ... one cannot rule out that the telephone calls may

14 have been motivated by criminality rather than

15 terrorism."

16 Then he concludes at the bottom of the page -- if we

17 can have that, please, RNI-914-295, at the bottom of the

18 page -- under the heading "Conclusions":

19 "There were many reasons why the core nominals could

20 be in telephone contact with one another between the

21 dates under review. Whilst one can hypothesise about

22 the nature of some of the calls, for example, the series

23 of calls ..."

24 Then there are various series of calls -- over the

25 page on RNI-914-296 (displayed) -- on the [blank] March

 

 

100

 

1 between, then a series of blanks:

2 "Possibly related to the drugs find at [blank]. It

3 is impossible to make any valid assessment about whether

4 any of the calls identified related to the murder of

5 Mrs Nelson."

6 So there was always this big question over the level

7 of contact that you had identified between the core

8 suspects, wasn't there?

9 A. Again, if you are only looking at the telephone

10 analysis.

11 Q. Yes.

12 A. All the telephone analysis shows are two phones that

13 talk to each other. It doesn't show you who has got the

14 phone, and that's what you always have to recall. But

15 on top of that, you have got the intelligence about the

16 meetings that they had had, the fact that they were --

17 they were known to each other. And the intelligence, I

18 think, does indicate some of the reasons why they were

19 getting together.

20 And, of course, if you are writing -- if I was

21 writing a report now or Mr Provoost was writing a report

22 now, it is absolutely clear that at least three of those

23 undisclosed documents relate to these contacts. So this

24 particular report would be completely different. And

25 certainly in my assessment of these telephone contacts,

 

 

101

 

1 because it is clear that Special Branch have

2 intelligence clearly indicating what were the purposes

3 of these meetings, particularly in 1997.

4 Q. So that is an example, is it, of where intelligence

5 which you didn't see would very much have assisted you

6 in this particular line of enquiry?

7 A. Yes, because it was specific to (redacted) an

8 under-vehicle device. So consequently -- you can never

9 tell why two people are talking and I have made the

10 point too that -- I have no doubt that they were

11 involved in drug offences as well as sectarian offences.

12 They did that. That's my knowledge of them and

13 certainly that's the feeling we got (redacted)

14 (redacted). But I can't actually

15 say what the calls were. It is only a hypothesised

16 idea.

17 Q. Just so I have got this straight in my mind, the

18 reference you have made to the undisclosed piece of

19 intelligence on (redacted)a device, was that not

20 intelligence from 1997?

21 A. Yes, but the important point was that there is two bits

22 there. There is the bit in (redacted) a device and

23 there was the one you showed me before which was related

24 to the fact that he had a new friend in a Belfast

25 bomber, which I think -- and the new friend wasn't

 

 

102

 

1 somebody who was going to supply him cocaine or

2 cannabis, it was to do with other illegal activities.

3 Q. As I remember it, that's from early 1997, is it not?

4 A. Absolutely, yes.

5 Q. Thank you. Can we move to the question which we have

6 touched on before and, indeed, you made various comments

7 about it when I was asking you about other pieces of

8 missing intelligence, and that's the broad heading of

9 victimology.

10 Now, so far as that's concerned, I would like to

11 trace through one or two comments you make about it in

12 your statement, and I would like to start, please, with

13 you at your paragraph 159 and that's at RNI-811-098

14 (displayed).

15 There you say, having set out the way you saw it,

16 that:

17 "The murder involved the use of a sophisticated

18 explosive device. It was a terrorist murder that

19 occurred in Northern Ireland."

20 You say this:

21 "Early indications did not suggest that I should

22 start an in-depth assessment of her lifestyle, including

23 researching her telephones, diaries, office

24 correspondence, financial transactions and even any

25 private relationships she may have had."

 

 

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1 Now, can I just ask you this question first of all:

2 what background checks did you in fact carry out in

3 relation to Rosemary Nelson?

4 A. Well, we carried out extensive background checks that we

5 thought were relevant to the facts of the case and our

6 investigation.

7 On the first day, for example, whilst I was at the

8 scene, I had officers going to her office to try and get

9 some information in relation to her movements or

10 threats. I spoke to Mr Nelson on the night in question

11 and put a series of questions to him, and he gave me

12 information on not only their movements at the weekend

13 but aspects of the routine that she carried out, and

14 also started to fill me in with what his knowledge was

15 about any threats that she would have got.

16 In addition to that, we asked the Irish police to

17 check aspects of her movements, when she was away at the

18 weekend. We put in a system to try and pick up on any

19 incoming calls because it was a reasonable assumption in

20 our head that anybody coming to place a device under her

21 car was not wanting to drive back two or three times to

22 her house where there was no car and may have tried to

23 check was she in the house.

24 We asked our FBI colleagues to go and speak to her

25 American contacts, was there anything said by her in her

 

 

104

 

1 appearances at Congress that would have indicated

2 anything relevant that we should have known. We looked

3 at the servicing of her car in particular detail, simply

4 because of the information that came to us from a member

5 of her office. As I recall it, the alarm had

6 accidentally hit off. We spoke to her staff to try and

7 get some indication was there any high profile or

8 difficult cases that she had been involved in in the

9 previous few weeks.

10 Clearly we did a lot of work in relation to the

11 services that came into her: from delivery people,

12 through postmen, through anyone who would have had

13 a contact with her that would somehow or other have been

14 something that would have been interesting to us in

15 terms of suspicions, and we checked her neighbours, the

16 last journalist to interview her to see had she been

17 candid about anything.

18 These were challenging tests to do, can I just say,

19 for obviously two reasons. First of all, for reasons

20 that I fully understand, Mr Nelson told me that he

21 didn't want to speak to me after the initial

22 conversation until the funeral was over. I had

23 difficulties contacting him after that and then he

24 informed me that he wanted everything through the

25 solicitor in writing, and he came back to tell me when

 

 

105

 

1 Mr Port was announced in late March, he didn't want to

2 speak to me direct. I must say the solicitors firm was

3 very civil about it, it wasn't a personal issue. But

4 for obvious reasons, they wanted to deal with the

5 outside English officer. So clearly there was problems

6 in tracing -- the things I was looking for had to come

7 from third parties.

8 The second difficulty identified was -- and I think

9 they were uncomfortable about this, but I specifically

10 asked Kent and the FBI, when it started to look that

11 Mr Nelson felt unable to speak to me, could they take on

12 a number of victim checks for me. I had hoped that they

13 could assist me because they represented a non-RUC base.

14 They went away and thought about it and came back

15 and said because of their terms of reference, they felt

16 unable to assist me in any executive acts. So clearly

17 we made a number of checks, extensive checks that we

18 thought were relevant to the facts in front of us in

19 relation to how she had died, but we had to carry them

20 out ourselves.

21 In the real world, you would like to have been able

22 to sit down with the Nelson family and in detail with

23 the members of her staff, but I had to do those checks

24 in reality through ourselves to third parties because I

25 couldn't get the independent systems into place until

 

 

106

 

1 Mr Port arrived.

2 Q. So, as I understand it, I think what you are telling us

3 is that you accept in principle the importance of

4 undertaking these sort of checks and investigations of

5 background, sometimes referred to as victimology, but

6 there were particular constraints in this case which

7 meant that you had to approach it in the way that

8 you did?

9 A. Well, not all the issues in this section, victimology,

10 would have been relevant to my enquiries. You had

11 a conversation with me in the first session yesterday

12 where you asked a series of questions about my knowledge

13 of the murder manual, and I checked my journals last

14 night and I stand by what I said at the time in the

15 sense that I had no familiarisation with the contents

16 until Mr Gutsell brought a copy. But one of the

17 sections I did read was the section on victimology

18 because of conversations that I had with Ian Humphreys.

19 Victimology was never a line of enquiry in this

20 investigation. There were three meetings with Kent on

21 line of enquiry, 17, 25 and 30 March, all three.

22 Mr Phillips was in the middle one and at no stage was it

23 made a line of enquiry. But I didn't need to know that

24 at times victim studies are important.

25 Now, in the section on victimology there is a long

 

 

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1 list of possible things you might want to be interested

2 in as the SIO. But, frankly, in Northern Ireland in my

3 experience there were many murders but not a single

4 issue on that list was raised. And there were also

5 murder investigations, as I say in my statement, that I

6 was present at where -- I can recall one where I found

7 a body in a field and I had no idea why the person was

8 there, why they died, who killed them, what implement

9 had been used. And basically everything on this section

10 was something I applied, and that was before I had ever

11 seen the manual or heard of victimology. It was common

12 sense.

13 This particular case -- in this continuum between,

14 for example, a police Land Rover getting blown up at

15 a culvert by an IRA bomber sitting 50 yards away

16 pressing a button, there is nothing in victimology

17 that's relevant to the death of the two policemen.

18 Unfortunately, they died that day because the sergeant

19 briefed them to be in their Land Rover, not to be doing

20 files duty in the police station. That's what it came

21 down to, in our experience. There is no victimology in

22 that.

23 The other extreme, is the situation where you deal

24 with -- the example I gave, the body in a field. I

25 think Mrs Nelson was somewhere in the middle between

 

 

108

 

1 those two and that's the basis that I went through, when

2 I looked at the sections on victimology. And I went and

3 did a whole series of enquiries, which I think

4 Mr Humphreys was satisfied with -- in the light of the

5 restrictions was an honest attempt to get as much as was

6 relevant to the actual facts of the investigation.

7 Q. Can I just ask you this, just moving on in time,

8 I appreciate that you are saying about the particular

9 circumstances, the particular difficulties, but as the

10 investigation proceeded, as in fact it did not advance,

11 particularly as a result of, in this sense, the failure

12 of Operation George to generate the material you had

13 hoped for, was that not the moment to go back and

14 consider the position and possibly at that stage devote

15 another effort of energy and attention to this question

16 of victimology, to enquiries about background and

17 matters of that kind?

18 A. Well, if the only thing you had in front of you was the

19 fact that you had listening devices working on Operation

20 George that were giving you nothing back in relation to

21 Mrs Nelson, that would be a very stark position that you

22 might go and say, "Well, we have got this completely

23 wrong". But on the basis of the validation of the

24 intelligence -- and I have spoken this morning of the

25 steps that we took and the cooperation -- we had very

 

 

109

 

1 experienced people who weren't speaking about this

2 particular incident, but there was no shortage of other

3 material that indicated that we were looking at the

4 right area when we were looking at these groups of

5 dissident Loyalists who carried out this attack.

6 So I wasn't aware of anything that came in to me

7 that meant that we were looking at the wrong people. It

8 is fair comment that perhaps -- at times we were

9 unfortunate or there may have been other ways to gather

10 the evidence, but that's for other people to say. But

11 in regard to were we looking at the right people, that

12 is still something that I firmly believe to be correct.

13 Q. Do you say, therefore, that to have spent any further

14 time or energy on this particular line of enquiry would

15 have been, as I think it says in your submissions,

16 a distraction and a waste of resources?

17 A. Well, if you look at the parts of the victimology I did

18 look at, you are clearly going to have suggestions like

19 what pub did she drink in. That's the sort of questions

20 that are in there. Was there anything about her

21 physical make-up. Was there anything in relation to

22 whether they was bound or gagged or held down or in any

23 way overpowered by the people concerned.

24 It is written with a known terrorist murderer in

25 mind, because if you look at the top of the page on

 

 

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1 victimology, it actually has a thing in italics where it

2 says boldly it assumes there are very few cases that

3 there is not a contact between the suspect and the

4 victim.

5 Well, you can start with this case because the

6 contact was between a suspect and a BMW car, and it

7 wasn't a contact between a suspect and a criminal. But

8 that said, very many terrorist investigations do not

9 involve any contact. The people who died in the Metro

10 in London, unfortunately in the recent Islamist attacks,

11 none of the victimology issues applied to them. They

12 unfortunately died because they got into carriage 3 and

13 a man with a rucksack got into carriage 3. That's the

14 sole reason why death came for them.

15 Consequently, I think you have to read those

16 sections on victimology -- and this is the conversation

17 that Mr Humphreys and I had -- in a realistic way in

18 terms of what I was looking at. And I think he was

19 happy, was the feeling I got in relation to the Op

20 Cornwall notes, that the sort of investigations I was

21 taking in relation to victimology were correct in light

22 of the facts that were in front of us.

23 Q. One of the other things that Mr Humphreys said in his

24 evidence to the Inquiry was that of course while he

25 understood the difficulties with the family were

 

 

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1 frustrating, as far as the MIT was concerned, it was no

2 reason not to pursue this line of enquiry, victimology,

3 with vigour. Do you accept that?

4 A. Yes, I mean, Mr Humphreys and I had very good working

5 relationship. That's probably one area of

6 disappointment. In the early days, yes, we could have

7 had more vigour if, for example, they were prepared to

8 have worked outside their terms of reference and

9 assisted me.

10 It was absolutely clear that some of the key

11 questions I was trying to get asked, Mr Nelson felt he

12 didn't want to talk to me. Now, that's a bridge we

13 can't cross because I don't know whether he would have

14 talked to Mr Humphreys. But on the announcement of

15 Mr Port's arrival, he was more than keen, as I recall

16 from the conversation I had with the solicitors, to talk

17 to Mr Port, which indicates that there could have been

18 things done better if I could have had assistance from

19 the FBI and the Kent personnel.

20 We are not talking about arresting people. We are

21 talking about sitting down and taking a witness

22 statement and asking a few questions. So, yes, I accept

23 what he says with vigour. I did believe I did it with

24 vigour. I think I could have done more things had other

25 people been prepared to assist me at the time. But in

 

 

112

 

1 light of the problems we faced, I think we found out

2 a considerable amount of details, which is shown, I

3 think, on the morning of the 17th, I think it is, it is

4 either Cornwall or my log. We see that on the arrival I

5 think it is of Sir David, that there is a very detailed

6 SOE, as we'd call it, sequence of events, of the

7 movements of the victim over the weekend that only could

8 have come by people who were doing a lot of background

9 checks to try to find information.

10 Q. Was there any sense in which you were disposed to hold

11 off from this line of enquiry because you knew it might

12 be very controversial?

13 A. No. I hope after a day and a half of listening to my

14 evidence, if anything, you might get the impression that

15 something controversial is not something that would stop

16 me asking relevant questions. They still have to be

17 necessary and relevant, I accept that. But, no, if the

18 question had to have been asked, it would have been

19 something I would have had no problem in asking.

20 Q. And again, it is a similar question really: is there

21 anything in the suggestion that you might have held back

22 on this front simply because of the political element,

23 the political pressure that we discussed earlier, which

24 existed in relation to the investigation?

25 A. No, I was -- I'm not aware of anyone putting me under

 

 

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1 any political pressure in relation to that, or whether

2 that's inside the RUC or in relation to the wider

3 Northern Ireland community.

4 At no stage was I under any pressure to take a line,

5 and I'm aware of Mr Humphreys’ evidence that he knew of

6 the rumours too and I'm sure it would be a brave man who

7 wants to put Sir David Phillips under pressure not to

8 take a line of enquiry, how I knew him. And I'm sure he

9 would have been most robust in defending his SIO should

10 that have been a line of enquiry that was necessary. So

11 it wasn't just an RUC attitude to these rumours coming

12 in, it was Kent as well.

13 Q. We will come back to that in a moment, if we may. Can

14 I ask you one or two specific questions about an aspect

15 of victimology, and that's to do with telephones. Can

16 I help you by directing you to a relevant part of your

17 statement, and that is at RNI-811-089 (displayed). It

18 begins on that page at 133 and continues to the next

19 page, RNI-811-090, and paragraph 134. Could we have

20 both pages on the screen, please (displayed)?

21 Here you tell us that you don't believe it is

22 a fundamental and standard investigative procedure to

23 examine the victim's telephone bills. And as I

24 understand it, the reasoning here is that you had no

25 doubt in relation to motive. Is that a fair way of

 

 

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1 putting it?

2 A. I had no doubt as to motive and I had no doubts as to

3 the type of device that was used and I had no doubts as

4 to why she was at that location at that particular time.

5 I had no doubts as to the fact of the people who had

6 a motive would have had opportunity to have carried out

7 what they did. So the sort of doubt I would have had

8 about the body in the field, you start finding in the

9 Nelson one I had less doubts because of a number of

10 issues.

11 Q. But bearing in mind the important principle of keeping

12 an open mind about matters in investigation, can I ask

13 you what was to be lost by doing further checks, for

14 example, on outgoing telephone calls?

15 A. Outgoing telephone calls?

16 Q. Yes.

17 A. Well, first of all, the context in which you carry out

18 telephone calls. It is not as tight now as -- it was

19 not as tight in 1999 as it is now. The rules are even

20 tighter now because of the introduction of Article 8, I

21 think it is, which has now been incorporated into our

22 legal system.

23 But even in 1999, there were good and sensible

24 agreements drawn up by ACPO and applied in the

25 relationship between telephone companies and the police,

 

 

115

 

1 which were covered by relevant RUC force orders, which

2 stated that they had to be necessary, they had to be

3 relevant and there had to be other lines of enquiry or

4 information coming in to justify seeking subscriber

5 checks in relation to the phone calls of people during

6 investigations.

7 Now, clearly, if you felt it was relevant and you

8 could make the case, you could make the application.

9 Now, in this particular case, I didn't feel that I had

10 anything coming in front of me other than one piece of

11 correspondence that came from a Unionist political party

12 in Northern Ireland, suggesting that there may have been

13 a matrimonial affair -- what I found particularly

14 interesting, bearing in mind where it came from, not

15 suggesting that I looked at the Republican person who is

16 alleged to be in this affair, but I checked out the

17 deceased's husband as the likely person who has placed

18 the device under her car.

19 Being an SIO and sitting with that in front of you,

20 and with all the material that was coming in that I have

21 talked this morning, I think the comments -- I think it

22 would be Mr Harvey -- that document was the mouse in the

23 wrecked room and I was walking past and avoiding the

24 elephant. I think he is absolutely right, that clearly

25 was something that I had to look at.

 

 

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1 Now, the danger with the section on victimology,

2 which I still hold to, particularly in relation to

3 telephones, is that when it was written, it wasn't

4 written in light of the requirements and conditions that

5 were placed on police officers for proportionality when

6 carrying out telephone enquiries, as I recall. And

7 certainly, as you will be aware, the murder manual came

8 out in 1999 and the Human Rights Act had passed in 1998

9 and came into play in 2000. So it very quickly, on the

10 training side, from our perspective in terms of the

11 police, we had to emphasise to detectives when we did

12 get round to training on the murder manual, that

13 basically this is not a free-for-all, there has to be

14 proportional and necessary lines of enquiry. And I

15 didn't -- and on the judgment of the time -- this is not

16 me looking back and with hindsight saying this. The

17 documents at the time show a consideration by myself in

18 consultation with Mr Port that on the facts of the case

19 this was not a line of enquiry that we were going to

20 carry out.

21 Now, people can doubt our judgment, but it wasn't an

22 oversight. It was a judgment we made at the time.

23 Q. Let's look at that together, please, at RNI-616-789

24 (displayed). This is in particular in relation to the

25 mobile telephone, 25 August, and it says at this point

 

 

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1 there is no ground for the Inquiry team to research the

2 bills. That's the bills on Rosemary Nelson's telephone?

3 A. That's correct.

4 Q. Can I just take it that you discussed the matter with

5 Mr Port before making that decision?

6 A. Yes, that and the other issue, I would have talked to

7 Mr Port in relation to that.

8 Q. Now, so far as the two suggestions put forward by

9 Mr Ayling in relation to these issues are concerned,

10 first that there should have been checks on all of her

11 phones for about two months before the incident and what

12 he calls a cell site analysis on the mobile telephone,

13 can you help us if there are any further points with

14 your reasoning for not having done either of those

15 things?

16 A. Well, the second one, frankly, is bizarre because

17 I mean, what you are really saying is I didn't believe

18 what Mr Nelson had told me, and the members of her

19 family. Now, if there was some other location that she

20 was present at.

21 Q. So everybody understands what you are talking about, you

22 mean in relation to the movements on the weekend of the

23 murder?

24 A. Yes.

25 Q. Thank you.

 

 

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1 A. If the cell site analysis was for the purpose of trying

2 to track the movements of her mobile phone on

3 the assumption that she travels with her mobile phone

4 on, I can't see the benefit in that.

5 If the purpose was simply to do a double check on

6 incoming and outcoming phones, the same rules applied to

7 what I said. I'm trying to think of anything and I

8 can't honestly think of anything that would have made it

9 necessary and proportional to carry out those checks. I

10 think you have to be careful in relation to -- as an SIO

11 who has been involved in a number of cases, of delicate

12 cases, of basically carrying out actions that just twice

13 over victimise the victim.

14 This lady died in gruesome situation. Clearly if

15 there was matters -- and I have dealt with

16 investigations where people have died in equally similar

17 terrible situations but not by terrorists, and I have

18 had to carry out those sort of checks because there was

19 issues as to why -- who were the suspects and even what

20 was the implement used to kill her. But in this

21 particular case I had nothing sitting in front of me

22 requiring that, and that was my judgment at the time and

23 that's how it is recorded. And I think that was the

24 right judgment.

25 Q. Can I just ask you about the rumours you have mentioned

 

 

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1 now on a number of occasions in relation to Colin Duffy,

2 because again that's dealt with in your statement and,

3 of course, in the Ayling Report.

4 You have told us you became aware of the rumours.

5 Can you remember at what stage of the investigation

6 that was?

7 A. I can't honestly remember because there was -- I think

8 there was a paper article that came out, not naming her

9 but may have been talking about him. So looking back

10 over ten years, there is so much in an investigation, I

11 can't say when the rumour came into my mind, but when it

12 specifically crossed my desk was in relation to M290

13 talking about it.

14 Q. We are just about to look at that.

15 A. Sorry.

16 Q. No, no. In relation to the newspaper articles, are you

17 referring there to the Casanova piece which came out, I

18 think, in February?

19 A. There was something that came out in relation to it.

20 I'm not sure it mentioned her, but there was something

21 about the gentleman having a certain type of lifestyle.

22 Q. There was certainly no reference --

23 A. Sorry, whether it was from the newspaper -- I did --

24 like many police officers I was a regular reader of the

25 newspapers or whether it was somebody mentioning it in

 

 

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1 the investigation team, I can't recall specifically

2 where that bit came from in relation to the gentleman.

3 But the first official thing that I have is the

4 document -- the information coming from the Unionist

5 Party meeting.

6 Q. Thank you. Now, we will look at that together, please,

7 at RNI-706-035 (displayed). As you have already told

8 us, this allegation, or series of suggestions really,

9 came in as a result of a meeting with Unionist -- I

10 think a Unionist -- no, some Unionist politicians and

11 there was a suggestion there of the relationship with

12 the client or Mr Duffy, and as you have pointed out

13 already in an answer you gave earlier, the suggestion

14 being made here was that the enquiry should focus not on

15 him in fact but on Rosemary Nelson's husband. That's

16 correct, isn't it?

17 A. Yes.

18 Q. Now, can I just ask you what steps you took, if any, to

19 pursue that line of investigation?

20 A. Well, clearly, it was a strange call. Mr Nelson, is an

21 accountant and a highly unlikely person to have been

22 placing a device under someone's car or having access to

23 a device with all sorts of Loyalist pieces on it.

24 Certainly we had a conversation, Mr Port and I, in

25 relation to that, and, well, the actual document shows

 

 

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1 the common sense -- forget about who said it, but if it

2 was true, you can see the common sense running through

3 it.

4 In my life long experience in policing and dealing

5 with domestics, when there is an affair, it is usually

6 the injured party who is the one who gets cross, not the

7 two people having the affair. So you could see the

8 logic that was being looked at this. But we clearly

9 knew that Mr Nelson would never have access to that type

10 of material, nor anything in his background, and the

11 only possibility was that somehow or other there was

12 some contact between him and a Loyalist. And in a very,

13 very restricted sense, we got the telephone people just

14 to check and ensure that any mobiles he used or phones

15 he used had not come up on any sort of the suspect

16 investigations. But it wasn't his phone subscribers

17 that were looked at.

18 As I recall, that's what we did and that was entered

19 to, just like the other one, because of the fact that we

20 were not going to do a certain victimology line of

21 enquiry and this was a judgment, not an oversight. It

22 is marked in the secret policy book, our decision. And

23 as you see, that top line there is, I believe, Colin

24 Port's. At the bottom is says "action", it is scored

25 through:

 

 

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1 "Noted ..."

2 I think that's "CP" at the end:

3 "Noted SK".

4 That's myself. I got the call, I put the message

5 in. It was deemed to be significant enough to look at

6 and to make a formal entry in the policy book as to why

7 we wouldn't action it.

8 Q. Clearly the results show that there was no basis

9 whatsoever?

10 A. Absolutely no basis in relation to it. Back to that

11 point, some of the issues to do with the alleged affair.

12 When people are having an affair, it is the innocent

13 party normally, in my experience, who gets angry and

14 does something. That's where the logic that applies

15 even though it is a ridiculous suggestion and maybe

16 motivated for other reasons, but we still had a look to

17 check out that possibility when we carried out the

18 telephone checks, and we could do that in a way that

19 didn't infringe or require us to unnecessarily look at

20 Mr Nelson's calls.

21 Q. Could I just ask you about other ways in which this

22 matter came to your attention. And the next is via

23 a journalist, and it is at RNI-706-037 (displayed). I

24 think this is in fact a note made by Mr Port, is it not?

25 A. Yes, it is Mr Port's writing, yes.

 

 

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1 Q. 12 May 1999 and, again, it refers in (1) to the alleged

2 relationship and then suggests, although the writing is

3 not, I am afraid -- certainly for me -- very easy to

4 read, I think it suggests in (2) that the Provos -- I

5 think that's what it says. It may say PIRA. It says

6 something like that anyway -- were involved in the

7 attack.

8 Now, was consideration given, if that was the

9 information received, to pursuing this line of enquiry,

10 particularly the second point there?

11 A. No, actually what it says is that the mercury tilt

12 switch was previously unused by Loyalists and,

13 therefore, PIRA were involved. That's what it says.

14 Q. Yes.

15 A. Which, on the document -- I'm not saying any more, but

16 the documents I gave you this morning indicate that's

17 not correct because that mercury tilt switch was,

18 I believe, on intelligence related to other incidents

19 and certainly in terms of the bomb maker, that was his

20 particular one that he had acquired.

21 Q. So that suggestion, whatever the reasons put forward,

22 was not regarded as a credible suggestion?

23 A. No, because -- I know you are going to talk to M540, but

24 I mean, just look at the magnets, look at the history of

25 PIRA undercar vehicles and the use of Sea Searcher

 

 

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1 magnets, which is completely different to the magnets

2 that are in our device, and look at the number of

3 magnets and look at the relevant intelligence indicating

4 previous mistakes.

5 So when Mr Port is looking at this or I'm looking at

6 this now, there is absolutely -- it screams at you that

7 paragraph 2 is from someone who has not got the right

8 end of the stick in relation to what we knew in

9 forensic. And that doesn't mean that paragraph 1 is

10 wrong, but all I'm saying is that it gives you an

11 indication as to the knowledge base of the person who

12 phoned him.

13 Q. In relation to the magnets, just because you have raised

14 that, that, again so everybody understands the point, is

15 something you have dealt with in your statement, isn't

16 it, namely that the origin of the magnets, what you

17 believe to be the origin of the magnets, pointed very

18 much in the Loyalist direction?

19 A. In terms of our enquiries, in terms of later

20 intelligence that come in in relation to where the

21 Loyalists were obtaining them from, which was the same

22 location for our enquiries, and importantly -- and it is

23 an inference drawn as an investigator, as I said -- the

24 fact that some of the previous devices had misfired for

25 a failure in this particular area and explains why, as

 

 

125

 

1 I'm sure M540 will be explaining to you, the three

2 magnets could hold, was it, 300 kilogrammes and the

3 overplay, as I say, overreaction to a previous problem.

4 Q. Thank you. The next document I would like to look at

5 with you in this context is of a very different kind and

6 it is a witness statement at RNI-706-031 (displayed).

7 It is a witness statement of an individual whose name

8 has been redacted. In fact, he has given evidence to

9 the Inquiry. This is material, as far as the Inquiry

10 can tell, that came to the Murder Investigation Team in

11 about May 1999. And the relevance of it is that this

12 statement was made in the context of a complaint, and if

13 we look to the next page, one of the matters mentioned

14 in the complaint against the RUC was a suggestion that

15 he -- this individual -- had been told about the alleged

16 relationship with Colin Duffy by RUC officers.

17 Now, when this information became known to the

18 Murder Investigation Team, did it make you consider or

19 reconsider your view about the relevance of the group to

20 the murder?

21 A. No, the same attitude would have been applied to that as

22 I applied to the previous document you showed me in

23 relation to the information coming in from the DUP.

24 Q. Did it not raise a question in your mind as to how

25 widespread the rumour, or knowledge of the rumour was

 

 

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1 within the RUC?

2 A. The extent to which the knowledge of a rumour was held,

3 whether it was one person or a thousand persons, was

4 irrelevant to me. The issue is did the rumour raise

5 issues to me in relation to threats against Mrs Nelson

6 or anything that maybe indicated the person is involved

7 in this, may have been having an affair.

8 I have to say there are clearly -- and you haven't

9 referred to it, but in my statement, I think it is

10 paragraph 164 in my main statement, I went into some

11 detail as to -- with my knowledge of Provisional IRA

12 issues why at the time Mr Duffy's name is mentioned to

13 me, I realise I'm saying in an alleged capacity, it

14 would have been highly unusual for me not to have had

15 information that he had threatened or intended to

16 threaten, or taken part in it.

17 Q. That's not the point I'm getting at, Mr Kinkaid, not at

18 all. The question is whether information concerning

19 what was said to be a very close relationship between

20 this man and Rosemary Nelson didn't increase her

21 vulnerability, increase the threat to her?

22 A. No, I have to say in the history of the Troubles and my

23 knowledge, I'm trying to think here of a solicitor for

24 a firm who would be handling cases involving members of

25 proscribed organisations, where they actually were

 

 

127

 

1 killed by one of their own clients and weren't attacked

2 by someone from the opposite side.

3 Q. That's precisely the point I'm trying to put to you: do

4 you not think that if rumours of this kind had been in

5 circulation, it would have made Rosemary Nelson even

6 more of a target for the other side, for Loyalists, who

7 probably had a very strong view about Mr Duffy?

8 A. I'm not sure whether you could have increased the extent

9 to which she was despised by the other side. That was

10 clear from the "Man Without a Future" document, which

11 indicated that, you know, her relationship with Mr Duffy

12 in the sense of -- even their client-based relationship

13 made her someone who they detested, and the

14 Garvaghy Road Residents Coalition as well as in relation

15 to parades.

16 I see the point you are making, but I'm not sure

17 that telling me -- proving they were having an affair

18 would have made me feel that she was even more a likely

19 target for the Loyalists. That really seriously

20 underestimates the extent of sectarianism in Mid Ulster

21 at the time.

22 Q. And you don't think it in any way, this rumour -- it is

23 not a question of proof, by the way, it is a question of

24 rumour?

25 A. I accept that.

 

 

128

 

1 Q. You don't think in any way it would have distinguished

2 her or made her more vulnerable than other lawyers

3 acting for clients of this kind?

4 A. In relation to from Loyalists?

5 Q. Yes.

6 A. No. I mean, I can think of comparisons to Mr Finucane's

7 death and nobody has alleged any relationships he might

8 have had in any way contributed to the fact that he was

9 targeted by the Ulster Defence Association in Belfast.

10 So, no, I don't hold that. And I mean, from my

11 perspective that was in the -- those rumours were out.

12 As you say, they were distributed about and I don't

13 think the fact that my view that she was or was not

14 having an affair with the gentleman concerned in any way

15 would have made it more significant in terms of their

16 motive to attack her, if the possibility arose.

17 Q. So it falls, does it, into the category of material that

18 we have come across on occasions earlier, that this was

19 all material that didn't add to what you believed to be

20 the store of relevant knowledge that you already had?

21 A. You are talking about two -- documents like 2890 or this

22 witness statement? It didn't add to our view that she

23 was likely to have been a victim of sectarian violence

24 in that sense. It didn't add anything new in terms of

25 the forensic examination or the lines of enquiry.

 

 

129

 

1 Q. Now, the Inquiry has heard evidence, as I'm sure you are

2 well aware now, from a number of members of the

3 Special Branch and others indeed, other members of the

4 security forces, to the effect that before her murder

5 they believed that she had, as one of them put it,

6 crossed the line and had committed criminal offences

7 and, indeed, was regarded, as one of them put it, as

8 herself a terrorist.

9 Now, were you made aware of those views during the

10 course of your work on the investigation?

11 A. Of those individual Special Branch officers?

12 Q. Yes.

13 A. No, I wasn't aware of those views. I think, if you look

14 through my records in this investigation, you will see

15 there have been several occasions, I think -- Mr Savill

16 spoke to me about them -- where I dealt with people and

17 had people dealt with who made inappropriate comments

18 about the deceased. They aren't Branch officers. I

19 think one case involved a military officer.

20 So it indicates it would be well-known that I would

21 have stepped in and rebuked any such improper behaviour.

22 And in one case, I think, we may have referred it to the

23 relevant authorities for investigation. So all I'm

24 saying is that I would probably be a very unlikely

25 person for someone to express that opinion in front of.

 

 

130

 

1 Q. Just so I'm absolutely clear about this, you are saying,

2 as I understand it, two things: first, that you had

3 never heard her described or regarded in that way during

4 the course of the investigation, but are you also saying

5 that you had never heard, as it were, that about her

6 before the time of her murder?

7 A. I'm trying to think and help you here. I can't recall

8 someone saying that to me before her murder, but then I

9 wasn't in the area where she worked. I had no dealings

10 with her. I wasn't involved in any arrest operations

11 where she was the solicitor, as I can recall. I was

12 somewhere different. So I wasn't in the place where

13 those things were raised.

14 Q. Now, you were conducting what was at least in part

15 a collusion enquiry. Isn't this something that you

16 would have wanted to know?

17 A. I think in fairness, that's a matter for Mr Provoost

18 because there were aspects of inappropriate behaviour

19 alleged by -- or comments by different people, I think,

20 that were referred to him and he investigated.

21 For the first couple of weeks, before I could get

22 Mr Port over, there were a number of issues about

23 inappropriate behaviour by police officers that I dealt

24 with, particularly in relation to control room staff who

25 were checking out her vehicles. But once it became

 

 

131

 

1 apparent that a non-RUC collusion team was being set

2 up -- which was one of the first conversations that

3 Mr Port and I had -- I think they had investigations

4 into that type of behaviour. It is a matter for

5 Mr Provoost to answer. Because of the Chinese walls

6 that I indicated, they would only have come out to me if

7 it was relevant to an action in the MIT, and even then

8 the details of the collusion investigation would not

9 necessarily have been told to me.

10 Q. Can I just turn finally to some questions on suspect

11 management and Operation George and ask you this

12 question first of all: what system, as SIO, did you have

13 in place to manage how suspects were nominated as such

14 and investigated?

15 A. I have to say terrorist investigations in

16 Northern Ireland were notoriously difficult to get

17 a system that properly worked. The suspect management

18 systems that existed on HOLMES and MIIRSAP were sort of

19 based on -- the average non-terrorist murder were three

20 men fighting in a bar, and you had descriptions and you

21 are looking for two because you have one deceased. I'm

22 not going to read it through again, but it is important

23 that you recognise when I say in paragraph 186 that

24 RNI-811-108, where I went through the whole range of

25 possible involvement in this wider conspiracy because

 

 

132

 

1 what actually happens is you end up with a narrow band

2 of suspects, like, for example, what came in on the

3 intelligence, saying that Mr X and Mr Y played an active

4 part, or Mr Z played some role in the construction of

5 the device.

6 But it is a terrorist organisation that you are

7 dealing with and, for example, you immediately know that

8 Mr Z, when carrying out his activities, always has the

9 following three safe people with him and, for example,

10 Mr Z doesn't go to the alleged location to purchase

11 these items by himself. He has a number of safe hands

12 who go in and purchase tilt switches for him.

13 Consequently, as the SIO you have two groups of

14 suspects: you have specifically-named suspects in

15 a narrow band, and then you have people who are suspects

16 because they are members of the relevant organisation

17 and would normally act in association with the key

18 people. That means when you are carrying out a murder

19 investigation in Northern Ireland into terrorism, the

20 range of suspects that you had tended to grow in a way

21 that it wouldn't in a non-terrorist investigation.

22 So clearly we couldn't apply the systems of tight

23 suspect review that you did in MIIRSAP for other

24 investigations. That was my recollection at the time.

25 Q. Just getting back to my question, which was, if you

 

 

133

 

1 remember, what system did you have in place to manage

2 how suspects were nominated as such and investigated,

3 what was the system?

4 A. I answer you again: there was no system in place in 1999

5 in my recollection for dealing with terrorist

6 investigations in Northern Ireland, where you --

7 particularly you had a long string of a possible

8 conspiracy. The rules were written to deal with other

9 type of investigations.

10 Q. Did you have a system in place for the elimination of

11 suspects?

12 A. Yes, we did eliminate suspects. They were done through

13 the use of officers' reports. Examples I would put up

14 to you is the example of the student who was reported to

15 us from England, which indicated that he had had a part

16 in the investigation. In that particular case, we did

17 a lot of in-depth analysis, looked at it and then it was

18 decided he had played no part.

19 A more important one I would give to you is (redacted)

20 (redacted) who, we were

21 informed (redacted), had made a number of clear

22 claims in relation to his role in the death of

23 Mrs Nelson, where we went and spent three or four days,

24 (redacted) under terrorist legislation, listened

25 to his story, spent a fortune in resources trying to

 

 

134

 

1 prove or disprove whether his explanations were right or

2 correct, and properly wrote that off on the basis of a

3 suspect who no longer was a suspect, both in reports and

4 relevant journal.

5 So clearly there is a series of cases there, where

6 we were looking at other hypotheses. It goes back to

7 the whole sense of being an open mind, and where I can

8 write them off as the SIO, I am writing them off and

9 saying, "This person is not a suspect".

10 Q. How did you go back ensuring that the other members of

11 the MIT were aware of who remained on your suspect list

12 and who had been eliminated?

13 A. That's through the meeting system that Mr Port had. But

14 also the unofficial -- the way we worked together.

15 Clearly, you know, when, for example, I was dealing --

16 let's say (redacted)

17 (redacted) -- and I have to say here in fairness, because

18 people in the community will know, it was his father who

19 brought him to us and told us about the information.

20 But that family tried to support us in the

21 investigation. But in that particular case there, that

22 would have been -- when I write off that particular line

23 of enquiry, that is after consultation with the OIOC.

24 All these things are.

25 Now, someone has to sign the forms, so I signed the

 

 

135

 

1 form, but that would have been after conversations with

2 Colin Port.

3 Q. And is Mr Ayling right to say, based on his examination

4 of the system, that your category of suspects included

5 as many as 85 names; is that right?

6 A. Again, that's the problem between -- Mr Phillips, as I

7 said earlier, and that's why I tried to get a few

8 minutes explaining the difference between what I call

9 a core suspect and the associate.

10 Take, for example, the simple issue of the

11 conspiracy to construct this device. I have

12 intelligence that Mr X made it. I know that Mr X

13 doesn't get in his car and drive to the location and

14 either purchase it or sneak into Harland and Wolff in

15 the middle of the night and steal a magnet. We know

16 that. That's not the way it goes on. You don't even

17 need intelligence to tell you that, that's investigative

18 knowledge.

19 So consequently, a number of his associates around

20 him immediately become people of interest to us. Now, I

21 can't say definitively the way the intelligence -- the

22 first two documents you showed me, I can't say

23 definitively that those persons were involved. But if

24 you want to say they're a second degree suspect because

25 they're the most likely people that he was going to ask

 

 

136

 

1 to go and do something -- because his -- remember, his

2 house had been searched at various time, as I recall, by

3 other investigations due to the previous devices that

4 went off.

5 So number 1, he wasn't keeping stuff in his house.

6 Number 2, he wasn't going out and purchasing it.

7 Number 3, he was using other parties, and they become --

8 they get sucked into the suspect system in a way that

9 three men fighting over a few pints of Guinness in a bar

10 don't happen. But that's the realities of a terrorist

11 investigation.

12 Q. Can I move on to a slightly different topic. This is at

13 188, RNI-811-114 (displayed), where you explain the

14 decision to delay arrests. And as I understand it, you

15 there set out the factors which led to the decision

16 which I assume, again, you would have made in

17 consultation with Mr Port, certainly after his arrival;

18 is that right?

19 A. Well, actually it was both. So I have got a double

20 cover in this one. It was a decision, as you can see

21 from my journal and -- it was a conversation with

22 Sir David Phillips and then with Mr Port because I might

23 be wrong, but is that decision not some time around

24 about 7 April?

25 Q. Way out of my knowledge range there.

 

 

137

 

1 A. It is a particularly important decision, it sticks in

2 your mind, but I have a funny feeling it was roughly

3 about 7 April, which is maybe the day we have the

4 handover meeting.

5 Q. So you think it is a matter you discussed both of the --

6 A. My journal shows a conversation with Sir David Phillips

7 definitely and Mr Port was there too and he chaired the

8 meeting, and putting -- I think actually it was in

9 the -- it was probably recorded that morning. I can't

10 say what time of day, but it is -- it clearly shows that

11 it is roughly -- it is the same day roughly as the

12 changeover.

13 Q. Thank you. Now, so far as the, as it were, next phase

14 of the investigation is concerned, in terms of its

15 concentration, you deal with that in 190, RNI-811-115

16 (displayed) and you tell us there in the second line:

17 "As the SIO, I realised well before the arrival of

18 Mr Port that evidence obtained by technical means would

19 be the most likely method of bringing the suspects to

20 justice."

21 It would be very helpful indeed if you could just

22 explain your reasoning, as you say, at this very early

23 stage of the investigation?

24 A. Yes. Well, it would be very helpful to me if you could

25 put up the secret policy book entry, I think it is 8 or

 

 

138

 

1 9, which actually records that decision and why. You

2 may want to check it first to make sure because I think

3 it actually names the suspects, but it does go into

4 detail as to why.

5 Q. We may have it. Mr Kinkaid, as you will no doubt be

6 aware, every single entry in the secret policy file has

7 been processed over days, weeks and months in order to

8 decide which can be put into the bundle. But we will

9 look for that.

10 A. If you haven't, I'll try by memory.

11 Q. Please do.

12 A. It is very similar to the reasons why we are not

13 arresting them, but what you have is on 26 March, myself

14 and Mr Gutsell going to speak to the two ACCs. I had

15 spoken to Ian Humphreys and I was clear that

16 Ian Humphreys agreed with me that we should be thinking

17 seriously of the type of approach that the

18 Metropolitan Police took in the Lawrence investigation,

19 which was to try and put some type of intrusive

20 evidential surveillance in the homes of these suspects

21 because I had briefed Mr Humphreys about my experience

22 and years of doing terrorist lifts of seasoned

23 terrorists at Castlereagh, for example, and -- my

24 officers carried out Castlereagh and at Gough Barracks

25 as well. And with these people we were going to have

 

 

139

 

1 nothing in the house, no witnesses who may be able to

2 help us at times coming forward from the communities

3 because of intimidation, and on top of that the obvious

4 issue that it wouldn't be like an episode of crime on

5 the television, where after two questions in an

6 interview somebody rolls over. These people didn't

7 talk. So consequently the only way of developing this

8 was to use the evidential route.

9 Now, if you see, these two -- it is important --

10 these two secret policy book entries are linked because

11 the one about the arrests at the end refers back to the

12 one about the technical because it says we are not doing

13 it for these reasons, but it allows us also to advance

14 by the technical reasons as well.

15 Q. I think we may have found the technical one. I don't

16 know if it is on the system, but let's see: RNI-909-173

17 (displayed). It is on the system. Is that the one?

18 A. Yes, that's it.

19 Q. Excellent.

20 A. As you see, it says "DC", I'm referring then to the

21 legislation, Part 3 of the Police Act, and the names are

22 redacted out. Now, the reasons that they gave:

23 "Gather evidence to ensure that the evidence is

24 admissible, to ensure the rights of the suspect are

25 protected through the investigation."

 

 

140

 

1 That's basically the requirements that were under

2 the Police Act 1997. So that was the first start of the

3 intrusive -- that was the first start of the intrusive

4 actions that we took. Then the decision, which is two

5 days later on the 7th, I think it is, number 12, then

6 refers back to that because it lists the realities of

7 what we were facing if we just lifted these people and

8 brought them in, bearing in mind the law wasn't the same

9 as PACE, but the same rules applied in terms of

10 repetitive questioning and other things like that.

11 Basically we had to have an interview strategy and

12 a case to put to them, and we knew they would sit there

13 and say nothing. So consequently that was another

14 additional reason on top of the ones that are in 188,

15 obviously, that you have up there, that allowed us to

16 not make a decision not to arrest, and both Mr Phillips

17 and Mr Port were in agreement with that.

18 Q. So the way we began this discussion was in a sense the

19 right way: these two aspects, the decision not to arrest

20 and the decision to go for evidence obtained by

21 technical means, are closely linked?

22 A. Yes, the decision not to arrest was based on three

23 negative considerations in the sense that they wouldn't

24 make -- they wouldn't make confessions, they won't have

25 anything in their houses and they will intimate

 

 

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1 witnesses. And the decision not to arrest was also

2 based on one positive consideration. It would give us

3 an opportunity to try and develop evidence gathered by

4 intrusive surveillance.

5 Q. The first of those points was by no means unique to

6 these individuals in Northern Ireland, was it?

7 A. It was the experience of all detectives.

8 Q. Indeed. Can I ask you to look, please, at the 7 April

9 policy file decision. That's at RNI-702-107

10 (displayed), outside my knowledge range, but well within

11 (redacted) , you see. Is that the one?

12 A. That's the one that refers back to 9, we had it before.

13 Q. Exactly. And there it sets out the reasoning very much

14 as you just done it for us and links it back to

15 number 9.

16 A. Yes. And, you know, it is a realistic one because,

17 bluntly, at that stage on the 7th of the 4th, there was

18 no forensic hits coming back on any item to them and no

19 witnesses in my possession who said, "I saw a large man"

20 and picked him out in an ID parade. All I would have to

21 put to them was intelligence that had come in at that

22 particular stage.

23 Q. That's exactly what I wanted to move on, just trying to

24 take a review, as it were, of the landscape at this

25 point: no forensic help, no direct forensic help, no

 

 

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1 eye-witnesses, so you were looking to be more proactive

2 in order to get what you needed, which was of course not

3 intelligence but evidence that you could use in

4 a prosecution?

5 A. Yes, I had forensic knowledge about the device but it

6 wasn't something that I could put across the table in an

7 interview, like D51. I mean, those sort of things --

8 that sort of stuff was starting to come in, you know,

9 telling me about the bomber, but I couldn't -- I had

10 grounds to arrest the bomber, certainly on the first

11 couple of sheets that come in, but I would be hard

12 pushed to -- other than where were you on the night in

13 question, I would be hard pushed to think what I could

14 have put to him across the table (redacted)

15 (redacted)

16 (redacted), secondly, would put him on his guard

17 in the sense -- or put the three of them on their guard

18 that -- although I had always had an interest in them, I

19 had nothing on them. So that was our judgment at the

20 time.

21 Q. Can we just trace through this with you to the secret

22 policy file decision at the beginning of June, and

23 that's RNI-909-172 (displayed), another of your

24 decisions obviously:

25 "The intelligence gathering aspect of the

 

 

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1 investigation now represents the most important line of

2 enquiry. This has been reflected in the distribution of

3 personnel and IT resources. Six RUC officers have been

4 returned to divisional duties from the general enquiry.

5 Seven non-RUC have been introduced to primarily work on

6 intelligence actions."

7 So in your distribution of men and resources, men

8 and women, no doubt, and resources, you were reflecting

9 the focus of the investigation, namely that this

10 proactive intelligence gathering operation had become

11 the main line you were pursuing?

12 A. Yes. At that time in June, if you actually look at the

13 numbers in the investigation, Mr Phillips, you will see

14 they go down in June, I think, because we send people

15 back and then I haven't -- I get them brought back

16 in September. And, for example, when the RIR officer is

17 arrested and brought in, and then you see there me

18 gathering in and in terms of the -- also the RIR officer

19 and the (redacted) -- I'm

20 borrowing interview officers, as I recall them, from the

21 crime squad, to assist, and I bring back in September,

22 as I recall, a number of these outside enquiry teams

23 because of things nothing to do with this top line

24 enquiry, other important things coming in that need to

25 be rigorously looked at. So, consequently, you know,

 

 

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1 the numbers went up and down in relation to the actual

2 work at hand in front of me.

3 And that's just one of the decisions. Now,

4 I realise that Mr Ayling found it strange at times, the

5 sort of second and third line that's in there, but

6 that's where I go back to the point about comparing what

7 I did to what was the accepted policies of the RUC at

8 the time. And one of the responsibilities on an SIO,

9 besides trying to catch the people who were responsible,

10 was to show that he was running the investigation in an

11 efficient way. And the directions at the time for me

12 required me to record in the policy book the movements

13 in and out and how I tried to run it efficiently. That

14 has gone now but that was the reality in 1999 and it is

15 only an aside, but that's why those sort of strange

16 things are in there.

17 But the other side of the coin is there is a later

18 entry -- I can't remember -- where you'll see me,

19 roughly in about September, asking for three of these

20 people to come back because of their knowledge and using

21 additional resources coming in. So it is a very fluid

22 situation and you have done a spotlight on one moment

23 but it does increase later in the year.

24 Q. So far as you are concerned, obviously, in relation to

25 what became Operation George, you can only help us with

 

 

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1 that to a limited degree, partly because you weren't, as

2 I understand it, principally running it and partly

3 because you left in August 2000. But can I just ask you

4 to look at what you do say about it in your statement,

5 and that's at RNI-811-115, 191 (displayed), here under

6 the heading "Further suspect enquiries".

7 You are stressing, I think, to us that there were

8 a lot of other things going on while Operation George

9 was in play. Is that a fair way of putting it?

10 A. That's correct, yes.

11 Q. And for example, you say that:

12 "During this period and in parallel to the

13 operation, 266 suspect profiles were created:"

14 Now, so far as Operation George is concerned, would

15 it be right to say that the focus of that was on a much,

16 much, much smaller number of core suspects?

17 A. Yes, the suspect profiles relate to the auxiliary

18 people -- ancillary people, should I say, pardon me, who

19 would have come in -- the examples I gave earlier. And

20 that would have been looking to see whether there was

21 a case there at times to either develop any evidential

22 line against them or, in some cases, which didn't

23 happen, later require a house search or lift operation;

24 arrest operations, we would call it. Yes, that's what

25 the purpose of those were.

 

 

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1 Q. Again, remembering of course that you can only speak to

2 what was going on up until August 2000, was there

3 substance in the suggestion made by Mr Ayling that in

4 effect the energy and the focus of the investigation

5 moved to what was going on with the proactive work,

6 including in England, as opposed to the more traditional

7 lines of enquiry being pursued here in Northern Ireland?

8 A. That's absolutely not the case. I can see looking from

9 afar and reading documents -- pardon my using this word,

10 but it might look more sexy than some of the other stuff

11 that was going on, the undercover operations and all

12 that sort of thing. But in terms of the attention to

13 detail that I played and certainly in terms of the

14 accountability mechanism to Mr Port, he was -- it was

15 equally clear to me that he was as interested in the MIT

16 operations as in the other side.

17 Obviously I was caught between them both. I know

18 what you have said earlier in relation to involvement,

19 but you do have to remember in Northern Ireland the only

20 authorising officer for these operations in

21 Northern Ireland had to be myself under the relevant

22 legislation.

23 But you are absolutely right to say that a large

24 amount of the effort that was put into this, was put in

25 by non-RUC officers. And here is an important point,

 

 

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1 where that work developed, this was staffed by

2 additional staff obtained either as direct employees

3 coming in as detectives from England or retired

4 detectives that Mr Port managed to get on an agency

5 basis. So it had no implications at all to the

6 resources that the traditional side, as you call it,

7 needed to carry out the routine work that was done.

8 And finally -- and I'm not going to list them here,

9 it is in our submission, but there were so many other

10 important issues that were looked at that clearly

11 indicates that, from my point as the SIO, there was

12 a lot of things being taken seriously outside of the

13 actions that were carried out under Operation George.

14 Q. Thank you. Now, just finally, so far as this open

15 session is concerned, we have covered, albeit on a very

16 selective basis, a number of the points you have dealt

17 with in your statement in relation to the investigation,

18 and it is clear that you have taken a great deal of

19 trouble to familiarise yourself, refamiliarise yourself

20 with the material.

21 Bearing in mind that despite all the work that you

22 have been describing, not a single charge was referred

23 in relation to this murder, and looking back on it, are

24 there things now that you wished you had done

25 differently?

 

 

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1 A. It would be a brave man to have ever been involved in an

2 investigation of this size and not looked back and seen

3 things that you felt could have been done better or

4 differently.

5 I have no doubt about who we saw as the suspects and

6 none of the new information that I have seen, both

7 material inside Special Branch and material outside

8 Special Branch, has in any way made me change my views,

9 on the information that I have seen, that this was

10 a Loyalist attack on Mrs Nelson.

11 Now, clearly, when you go back, there were things

12 that you did in terms of the relationships that you had

13 with people, the sort of lines of enquiry that you

14 looked at, perhaps looking back at the time, for

15 example, dealing with Mr Nelson, when it became apparent

16 that the Kent and FBI people were not going to assist

17 me, in hindsight I should have went to Sir Ronnie and

18 asked him could he obtain for me a number of independent

19 sort of family liaison officers from an English force

20 rather than waiting two weeks for Mr Port to arrive.

21 And that's -- looking back, there was obviously more

22 creative things I could have done there.

23 But that's the sort of things that clearly, you

24 know, that any SIO looking back wishes he had done.

25 I accept the judgments that Mr Provoost made in his

 

 

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1 review, that -- where I was trying as best I possibly

2 could to protect sensitive material by using independent

3 reports to explain why I had made my decisions. He was

4 quite right, there should have been a cross-reference

5 into the policy book. I couldn't write them in the

6 policy book, but that didn't mean to say at times

7 I shouldn't have made it easier for anybody like

8 Mr Ayling coming back in the future, to be able to say,

9 "We made a decision not to do X. Please see report Y."

10 At the time, that wasn't going through your head.

11 There were entries, for example, in relation to the

12 device found at Maghaberry, that I still feel was

13 a justified decision on my part. Absolutely no bearing

14 on this, but I have had to explain it in detail now

15 where perhaps, on top of the detective sergeant's

16 initial enquiries, I should have put a better note.

17 So clearly there are things like that looking back.

18 But the main issue as to who carried out this, I have

19 seen nothing that makes me want to change my mind in

20 relation to who we looked at and, important under

21 Mr Humphreys, Mr Phillips and Mr Port, the way they

22 conducted it.

23 Q. Thank you. As you know, at the very end of the open

24 session of evidence, I invite witnesses to add anything,

25 if there is a matter or a point that they wish to draw

 

 

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1 to the attention of the Panel, that they haven't so far

2 mentioned. Is there anything in your case?

3 A. Just one thing, Mr Phillips, if the Panel is happy with

4 me just addressing it to the legal representatives of

5 the family who are present.

6 Obviously, for very understandable reasons, I did

7 not have the normal relationship with the family of

8 a victim that would have happened in my experience, and

9 I fully understand why Mr Nelson and Rosemary Nelson's

10 family felt they couldn't work with me.

11 So although it is ten years long after the event,

12 this is an opportunity I have to -- just to make it

13 clear to them my condolences and my regrets about what

14 happened to Mrs Nelson, and also, despite all the work

15 we put in it, the regrets I have that we weren't able to

16 bring to justice the people who killed her. And I would

17 just ask if that could be relayed back to the family

18 members.

19 THE CHAIRMAN: Thank you. Now, we break off for a quarter

20 of an hour.

21 MR PHILLIPS: I don't know how long it will take to set up.

22 THE CHAIRMAN: We will break off now.

23 MR PHILLIPS: And we will, as it were, give notice to those

24 who are going to be in the closed session.

25 THE CHAIRMAN: Yes. We are going to break off and go into

 

 

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1 a closed session. Anyone in the public area and any

2 legal representatives not entitled to be in the closed

3 session, should leave the chamber. The chamber,

4 including the public area, will be closed to you for the

5 closed hearing. We will notify those entitled to be

6 present, when we will resume.

7 (3.25 pm)

8 (Short break)

9 (4.00 pm)

10 (Closed session)

11 (5.15 pm)

12 (The hearing adjourned until 10.15 am on

13 Monday, 16 February 2009)

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