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Full Hearings

Hearing: 11th February 2009, day 105

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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 Wednesday, 11 February 2009
commencing at 2.00 pm


Day 105

 

 

 

 

 

 

 


 

1 Wednesday, 11 February 2009

2 (2.00 pm)

3 Housekeeping

4 THE CHAIRMAN: Yes, Mr Phillips?

5 MR PHILLIPS: Before Mr Kinkaid begins his evidence, I hope

6 it will be helpful just to say a few words about the

7 next part of the hearing and to introduce, or rather

8 reintroduce in some cases, some of the material.

9 As you know, one of the questions which the Inquiry

10 is, by its Terms of Reference, required to determine is

11 whether the investigation of Rosemary Nelson's death was

12 carried out with due diligence. And, as I explained in

13 opening the Inquiry at the end of April last year, this

14 requires a qualitative assessment from you against that

15 standard of due diligence, which in turn sets this part

16 of the Inquiry's work apart. There are related

17 differences in the procedural approach which the Inquiry

18 has taken to this issue.

19 First, as I said now nearly a year ago, the Inquiry

20 has engaged its own expert, Mr Ayling, to produce

21 a report on the issue, and you will recall also, I hope,

22 that at the time of the opening it had been possible

23 only to release part of the report in provisionally

24 redacted form. We now have finally redacted versions of

25 14 chapters of the report in files 601 to 614 of the

 

 

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1 bundle. There is a further and final chapter, 15, which

2 was also released in provisionally redacted form

3 in April, which has not yet been distributed but which

4 I very much hope will be distributed shortly.

5 Some, but not all, of the documents referred to in

6 the report have been put into bundle files and released

7 to the Full Participants in the 600, 700 and 900 series

8 of files. And I hope that I will find that all of the

9 documents we will be looking at this week and over the

10 next few weeks, when considering this part of the case,

11 will appear on the screen, having taken their place in

12 the electronic bundle as and when summoned.

13 Secondly, and at their request, you permitted the

14 four senior officers in the murder investigation to

15 prepare, with the assistance of their legal advisers,

16 statements dealing with the investigation and with the

17 points on due diligence raised in the Ayling Report. As

18 I suggested in my opening, the questions raised in the

19 due diligence area are more, you may think, for

20 submission than for detailed evidence. However, the

21 senior officers made it clear through their lawyers that

22 they wished their submissions to be supported by

23 evidence, and so you gave them permission to put in

24 their own statements.

25 Mr Kinkaid's statement was signed in October last

 

 

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1 year, his deputy, M540's, in November, Mr Provoost's

2 just before Christmas, I think, and Mr Port's on Friday

3 last week. The first two of those statements have been

4 served on the Full Participants. As I understand it,

5 Mr Provoost's is still being worked on but should be

6 sent out by the end of next week. Clearly we will deal

7 with the very recently arrived statement from Mr Port

8 just as soon as we can.

9 In addition to that material, there are the

10 following documents now in the bundle: first, the

11 summary of the murder investigation which, if you

12 remember, again, I introduced at the beginning of this

13 hearing; a document agreed between the MIT and the

14 Inquiry in early 2007, which sets out the course of the

15 investigation -- and that's in file 917 -- their outline

16 of evidence, again, helpfully prepared before the

17 opening of this hearing, at 917 from 066; and finally,

18 the submissions which they have made to you in which

19 their response to the various points made in the Ayling

20 Report is set out in summary form, and that's at 918.

21 Sir, the Ayling Report itself fills two lever arch

22 files and covers every major aspect of a very

23 substantial and lengthy investigation. However, it is

24 important to note that you have indicated to the Full

25 Participants through your solicitor, in his letter of

 

 

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1 12 January this year, that you wish to hear oral

2 evidence from the four senior officers and from

3 Mr Ayling on five aspects of the murder investigation

4 only. They are: the early intelligence received as to

5 suspects, reliance on the same and its validation; the

6 hypothesis that Rosemary Nelson was murdered by members

7 of the Mid Ulster LVF and the Murder Investigation

8 Team's focus on certain individuals; thirdly, the

9 scrutiny of other suspects; fourth, victimology; and

10 finally, Operation George with particular reference to

11 the use of resources.

12 You also indicated in the same letter that, so far

13 as management was concerned -- that's chapter 14 of the

14 report -- you would consider those aspects of the

15 management of the investigation which bore on those five

16 principal issues.

17 So in questioning the officers over the next few

18 weeks, your counsel will be concentrating, so far as due

19 diligence is concerned, on those matters.

20 However, it is also right to say that we will be

21 dealing with the evidence in separate witness

22 statements, which each of the officers has given to the

23 Inquiry, on the issue of whether or not the murder

24 investigation was obstructed.

25 Now, in relation to that issue, you will recall that

 

 

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1 they were interviewed, like the vast majority of the

2 Inquiry's witnesses, by the Inquiry's solicitors,

3 Eversheds. These statements have been signed very

4 recently indeed and I'm sorry that the Full Participants

5 are only now beginning to receive them as they are

6 processed. To take an example, Mr Kinkaid's statement

7 was signed late on Wednesday of last week and was issued

8 to the Full Participants, as I understand it, on Monday.

9 Now, those statements are themselves very

10 substantial and there will be a great deal of ground to

11 cover on these two issues in the limited time which we

12 have in our timetable. So that leads me to one final

13 and important point in relation to this part of the

14 evidence.

15 Although, as I have pointed out, the due diligence

16 part of the case has its own special procedural

17 features, the Inquiry's inquisitorial process continues.

18 So it is not Inquiry Counsel's role to put any case on

19 due diligence to these witnesses, but rather to test

20 their evidence on your behalf in the same way in which

21 we have tested the evidence of all other witnesses and

22 in the same way in which we will test their evidence on

23 the question of obstruction. Indeed, as the witness

24 statements which have now been provided show, those two

25 questions are, on any view, closely linked.

 

 

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1 Now, sir, may I say just a few words finally about

2 the nature of some of the material that the Inquiry is

3 about to consider in these hearings; in particular how

4 we propose to deal with it when questioning the

5 witnesses.

6 As everybody will have seen, sections of Mr Ayling's

7 report and of the relevant witness statements and

8 documents have been redacted, in some cases heavily

9 redacted, in addition to the usual considerations

10 relating, for example, to Article 2 to the protection of

11 very sensitive intelligence methodology.

12 There is a further matter in issue here. As is

13 well-known, despite the efforts of the Murder

14 Investigation Team, nobody has ever been charged in

15 connection with Rosemary Nelson's murder and this gives

16 the material which the Inquiry has considered and

17 generated in relation to the detail of the investigation

18 and perhaps, most obviously, that concerning those

19 suspected of playing a part in the murder, a particular

20 significance.

21 As I submitted in my opening, the Inquiry is not

22 a murder investigation. It is, I hope, obvious that the

23 Inquiry would not wish its work and, in particular, what

24 is said in these hearings, to have any adverse impact on

25 any future developments in the investigation of

 

 

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1 Rosemary Nelson's murder.

2 So what we propose to do in this part of the case,

3 as we tried to do in other parts of the case, is to

4 question witnesses to the extent which is possible on

5 these and other issues whilst retaining at all times

6 these important considerations so that the balance

7 between the need for the Inquiry to be, so far as

8 possible, an open process and these other important

9 considerations is maintained.

10 Sir, clearly if at any point we find ourselves at

11 the borderline of what is permissible in these

12 circumstances, then it may be necessary for you to

13 consider whether you wish the questioning to continue

14 and, if so, what limitations are appropriate so as to

15 allow that, for example, by going into what would

16 effectively be a private session, at which the Full

17 Participants' representatives but not members of the

18 public would be present and where there would be no

19 published transcript or other report of the proceedings

20 permitted.

21 Sir, I simply flag that up now before this evidence

22 begins so that everybody here is aware that there is at

23 least that possibility.

24 But, sir, in relation to this witness, Mr Kinkaid, I

25 should say something about a closed session of evidence

 

 

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1 because you have already indicated to the Full

2 Participants that part of his evidence should be given

3 in closed session. And I would like to give a very

4 brief indication of the reasoning for that, as we have

5 done in relation to other witnesses.

6 The matters to be dealt with in that closed session

7 are, first, particularly sensitive questions which were

8 raised in relation to the possibility of collusion in

9 relation to the investigation itself; and secondly, some

10 sensitive matters in relation to sources of

11 intelligence.

12 THE CHAIRMAN: Thank you.

13 Mr Kinkaid, would you good enough to take the oath,

14 please?

15 MR SAM KINKAID (sworn)

16 Questions by MR PHILLIPS

17 THE CHAIRMAN: Thank you. Please sit down.

18 MR PHILLIPS: Mr Kinkaid, could you give us your full names,

19 please?

20 A. My full name is Samuel Kincaid, but known as Sam.

21 Q. Thank you. I think it is right that you have prepared

22 two witness statements for us. Can I ask you to look

23 first at the one that you have prepared with your own

24 solicitors, and that we see at RNI-811-050 (displayed),

25 and if we flick over to the screen to RNI-811-145

 

 

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1 (displayed), do we see your signature there and the date

2 of 8 October last year?

3 A. That is correct.

4 Q. And then secondly, a statement you have given to the

5 Inquiry's solicitors, Eversheds, which begins at

6 RNI-811-146 and ends at RNI-811-199 (displayed), and

7 there again to we see your signature and the date of

8 4 February this year?

9 A. That's correct, yes.

10 Q. Thank you very much. Now, I would like to start, if

11 I may, with what I'm going to call your due diligence

12 statement. I hope you understand what I mean; in other

13 words, the statement you gave through your own

14 solicitors. This is at RNI-811-050, if we could go back

15 to that, please (displayed).

16 Because what I would like to do first is just to ask

17 you about your career in the police service, in the RUC

18 and then the PSNI, here in Northern Ireland. You begin

19 to talk about that in paragraph 4, which is on

20 RNI-811-051 (displayed). Over the next paragraphs I

21 think it is right, isn't it, that you set out, obviously

22 in summary form, your progress through the force, indeed

23 your rise through the ranks, culminating in your

24 retirement in, I think, 2006, by which time you were the

25 Assistant Chief Constable in charge of crime operations.

 

 

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1 Is that right?

2 A. That's correct, yes.

3 Q. Thank you very much. Now, looking at some of the stages

4 along the way -- and we have paragraph 4 on the

5 screen -- I just wanted to ask you this: this deals with

6 your early time in the force and you there, in the last

7 sentence of this paragraph, refer to a Loyalist murder

8 investigation. Was that your first experience of

9 working on a murder investigation?

10 A. That would be correct, yes.

11 Q. And can I take it from that point on you had experience

12 of involvement at various levels and in various ranks

13 with murder investigations in Northern Ireland?

14 A. No, that wouldn't be the case. As you can see from the

15 record there, my early stages of my work was in

16 uniformed branch.

17 Q. Yes.

18 A. And I would have been on many murder scenes, but more

19 from the uniformed perspective as distinct from CID.

20 Q. Can I ask you, when did you first become involved in the

21 investigation of a murder?

22 A. Oh, 1994 would have been the first date.

23 Q. And by that time, am I right in thinking that you would

24 have been a detective superintendent?

25 A. Yes, there was a policy which was introduced by one of

 

 

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1 the previous chief constables, which was to move special

2 course officers, who had been to Bramshill and to both

3 Special Branch and CID, and I think it was part of just

4 trying to fertilise -- cross-fertilise the organisation,

5 and some went to Special Branch and I came into CID in,

6 I think, September 1994.

7 Q. Can we look at the relevant part of your statement on

8 this -- it is paragraph 10, I think, at RNI-811-052

9 (displayed) -- because here you tell us about your

10 promotion to detective superintendent and transfer to

11 D Division. Is that the phase of your career you are

12 talking about?

13 A. Yes, that would be the main phase in relation to murder

14 investigations.

15 Q. Thank you. Again, as I understand it, your

16 responsibility there was as a supervisor; is that right?

17 A. No, that would be incorrect because my main

18 responsibility, as I said, was to act as an SIO for

19 category A murders and investigations, which I did,

20 whilst at the same time I had a team of other SIOs who

21 handled other murder investigations. So some of the

22 specific ones like the child murders and things like

23 that, clearly the rules at the time required a detective

24 superintendent to be in charge, but most of the work was

25 terrorist murder investigations. I was working with

 

 

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1 chief inspector/inspector SIOs.

2 Q. Just turning the page on the screen to RNI-811-053

3 (displayed), the ones for which you were the SIO, as I

4 understand it, were what you call there category A

5 cases; is that right?

6 A. That would be correct. It would be the very first line

7 there. In Northern Ireland, the category A ones, it

8 would be unusual, because of the nature of the terrorist

9 campaign, were child murders, serious criminal

10 allegations against police officers, those sort of

11 things. I had three chief inspectors and six detective

12 inspectors who handled the SIO responsibilities for the

13 murders. As we didn't have a gold commander approach,

14 which is currently used for ACPO, the detective

15 superintendents did the key supervisory role then that

16 would now be done by an ACC. So that's why you were

17 involved in everything from (a) to (h) on the list.

18 Q. Thank you. To be clear then, so far as your experience

19 in acting as an SIO was concerned, it started when you

20 were in detective superintendent rank in September 1994;

21 is that right?

22 A. That's correct.

23 Q. Now, what I would like to do now with you, if I may,

24 please, is to look at one of the appendices that you

25 have produced with this statement, and in particular

 

 

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1 appendix C, which I think begins at RNI-620-116

2 (displayed). So could we have that up on the screen.

3 Thank you very much.

4 Now, in this you have, for the benefit of the

5 Inquiry, set out some remarks about the relevant context

6 here in Northern Ireland, the context in which the

7 murder investigation took place; is that correct?

8 A. That's correct, yes.

9 Q. Thank you very much. Now, I would like to just pick up

10 a few of the points that you make there with you,

11 please, and the first is at C4.3 on RNI-620-126

12 (displayed). Yes.

13 There, as I understand it, what you are doing for us

14 is to set out some of the methods, the techniques --

15 I suppose one could put it that way -- used by

16 terrorists in Northern Ireland to obstruct police

17 investigations and to, so far as they could, avoid

18 detection. Is that a reasonable summary of what you

19 have got there?

20 A. Yes. Using, I suppose, the technical term, it was their

21 modus operandi for how they operated which was built up

22 over a period of time.

23 Q. Presumably -- it seems obvious -- all of these features

24 added considerably to the difficulties faced by

25 investigators dealing with crimes of this kind?

 

 

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1 A. Yes, that would be a fair comment to make, yes.

2 Q. Now, so far as that is concerned, would it be fair to

3 suggest that these sorts of factors contributed to the

4 relatively large number of cases where it was not

5 possible to bring people to justice for terrorist

6 offences?

7 A. Yes, these -- this list of sort of tactics that the

8 terrorists would have used, combined with the sort of

9 breakdown in the normal community support that you would

10 have for the police, in terms of people coming forward

11 as witnesses or feeling confident, no matter how well

12 meaning they were, to be seen to be assisting you meant,

13 yes, that it did make it much more difficult at times in

14 my experience to be able to successfully prosecute

15 cases.

16 Q. And it was one of the distinctions, no doubt you would

17 say, between investigating a case of this kind in

18 Northern Ireland and, if there were any such cases at

19 the time, doing the same in England?

20 A. Yes, that would have been my impression. You would have

21 went cautious with officers from other forces and, you

22 know, with the usual exchanges that you would have had

23 in comparing cases, and clearly there was a feeling that

24 some of my colleagues who I would have been on

25 attachment with on other forces at the time, they

 

 

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1 wouldn't have experienced these sort of problems in Kent

2 or Essex or those sorts of forces like that.

3 Q. Just turning the page to RNI-620-127 (displayed), at 4.5

4 of this same appendix you then pick out another feature,

5 which is that the terrorist organisations, as it were,

6 had their own intelligence networks, and that presumably

7 also made things more difficult for the investigators?

8 A. Yes, and I tried to make the point there that the

9 intelligence flow that came out of the terrorist

10 organisations went to both groups. Republicans and

11 Loyalists had different sources whereby information

12 crept out that was relevant to investigations or just to

13 general police activities.

14 Q. Then the next point you deal with is one you have just

15 mentioned, and that's at C5.1, the same page, where you

16 remind us of course that at this stage a substantial

17 part of the community was not cooperating with the

18 police in investigations?

19 A. Yes, it might be this part or the next one, I'm not

20 sure, where I do make the point that people in

21 Northern Ireland in my experience had a view on

22 policing, as distinct from a view on the police, in as

23 much as people sometimes in the Loyalist community would

24 have a view on the Republic of Ireland, even though they

25 had never ever been there, but they were able to express

 

 

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1 a view. And I think that was one of the difficulties we

2 faced because the Royal Ulster Constabulary by the very

3 name was part of the British institutions here. So if

4 you disagreed with the notion of British rule here, no

5 matter how nice police officers were to you, there was

6 going to be a problem for some people in the concept of

7 policing, hence the need for all the changes that have

8 happened recently.

9 Q. As I understand it, what you are also telling us in this

10 part of the appendix is that these difficulties came

11 from both sides of the community; they were not

12 confined, if I can put it that way, to the Nationalist

13 side. Is that right?

14 A. In terms of the views of policing, that would

15 predominantly have been a difficulty in the sense that

16 the Republican community would have had difficulties

17 with the whole concept of a Royal Ulster Constabulary.

18 The other side of the coin, of course, sometimes is that

19 from the other community you are hero worshipped, and

20 that can be a bad thing for an institution too, that

21 there wasn't a constructive criticism that necessarily

22 could come forward as well, and you were like

23 a shuttlecock caught between the two communities.

24 But clearly the negative side at times, for various

25 reasons, it was understandable from the political views

 

 

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1 of some of the people concerned. You can see why

2 policing, or the Royal Ulster Constabulary, was

3 a difficulty.

4 Q. Can we look at the passage I was thinking of. It is at

5 C5.4 on the next page, RNI-620-128 (displayed), because

6 here you talk about difficulties in some Loyalist areas,

7 and clearly at times and in certain parts of

8 Northern Ireland this presented its own significant

9 challenge for the police; is that correct?

10 A. Yes, that would be correct. Like a number of police

11 officers who served through the Troubles, myself and my

12 family have been threatened and intimidated and both

13 sides have certainly -- like many officers, I have heard

14 it from both sides of the community, and certainly the

15 time of the Anglo-Irish Agreement and the Drumcree

16 protest was certainly a time that there was serious

17 difficulties for police families. So it wasn't just all

18 from one side.

19 Q. Thank you. Now, moving, as it were, in rather closer to

20 the particular investigation, you go on in the next

21 section of this appendix to talk about the normal rules

22 as they then applied in relation to the structure of

23 murder investigations. Indeed you have already started

24 to tell us about this.

25 Can I just remind you of C6.4 on RNI-620-129

 

 

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1 (displayed) because there you tell us by way of

2 a contrast, as I understand it, what you have just been

3 saying, namely that in the ordinary course of events,

4 this case, the murder of Rosemary Nelson, would have

5 been run, as SIO, by a detective chief inspector. Do

6 you see that?

7 A. What paragraph, sorry?

8 Q. 6.4.

9 A. A detective chief inspector?

10 Q. Yes.

11 A. That's right, yes.

12 Q. Now, can you explain to us in your own words how it was

13 that you came to be in the rank that you were then,

14 detective superintendent, the SIO of this case?

15 A. Yes, as you -- the Tribunal is aware, there was a number

16 of allegations that had been made in relation to some

17 detectives serving in South Region. I think they had

18 been called the Mulvihill detectives, for the purposes

19 of our evidence.

20 The area where I worked in South Region CID, there

21 were two detective superintendents, each -- and the area

22 was split in half, and Lurgan, where the murder took

23 place, was not in my area. But the allegations had been

24 made against a number of detectives and they related to

25 arrest operations that had been conducted, where the

 

 

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1 other superintendent, who I don't believe a complaint

2 was made against, but he had supervised that arrest

3 operation and basically it was put to me on the

4 afternoon that clearly it would have been seen as

5 inappropriate as well as -- for any of the Mulvihill

6 detectives to be on it, which I made that decision in

7 relation to, but that the other superintendent who

8 supervised those arrest operations shouldn't be taking

9 a part in the investigation. So a decision was made in,

10 I think -- that's why I was asked to take that role as

11 SIO rather than him.

12 Q. Thank you. Now, as I understand it, again, just trying

13 to get some idea of the scope of your evidence on the

14 murder investigation, you became the SIO on the day of

15 the murder, 15 March 1999, and left the investigation at

16 the end of August the following year on your promotion

17 to detective chief superintendent; is that right?

18 A. That's correct, yes.

19 Q. So some 17 months' involvement?

20 A. Yes, that's correct.

21 Q. Thank you. Can you help us with the initial structure,

22 as it were, the command structure, within the

23 investigation on the day you were appointed? Who was

24 your deputy?

25 A. Well, the deputy who was appointed to serve with me was

 

 

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1 M540.

2 Q. Yes. And so far as the early weeks of the investigation

3 are concerned, you were the two bosses of the

4 investigation; is that right?

5 A. Yes, that would be a correct way of describing it, yes.

6 Q. Now, we have already heard evidence in the Inquiry that

7 the Chief Constable of the RUC, Sir Ronnie Flanagan,

8 invited the Chief Constable of Kent to assist, and he

9 arrived and so did two of his officers in the early days

10 of your work; is that correct?

11 A. Yes, the two -- the first I heard about -- that this was

12 going to be a possibility was on the evening of the

13 murder and then there was a number of phone calls the

14 next day, and Mr Humphreys and Mr Gutsell arrived, I

15 think, about tea time the next day.

16 Q. What was your reaction to being told by your

17 Chief Constable that there would be these senior

18 officers from England coming to assist you?

19 A. I fully understood the logic that lay behind it. I

20 had -- once, I think, the year before, I'd been in

21 Bramshill and had heard Mr Humphreys give a lecture on

22 the work he was then doing. He was just drafting it, I

23 think, the murder manual. So it was the first -- the

24 only time I had heard him. I was just in an audience

25 listening to him do a talk when I was on the strategic

 

 

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1 command course at Bramshill. So consequently, when

2 I phoned and talked to him when I was told he was coming

3 over, I knew he was a very experienced detective, and

4 like any CID officer, I was very aware of Sir David in

5 his role of the ACPO Crime Committee. And he was a very

6 sort of high profile expert on crime issues in terms of

7 British policing.

8 So, I mean, from my perspective I was more than

9 pleased to have them over giving advice and help and any

10 assistance they could.

11 Q. Thank you. Can I just ask you to look at a passage of

12 your statement on this, and it is at RNI-811-128

13 (displayed)? It is at paragraph 223 of your due

14 diligence statement. Because here, when you are talking

15 about the involvement of Sir David Phillips, what you

16 say some five lines from the end is:

17 "For his part, the Chief Constable of Kent had made

18 it clear he was not my superior but rather my adviser.

19 The reality, therefore, was that for the first four

20 weeks I had no line boss in the traditional sense of the

21 term."

22 So if things had been going in accordance with the

23 traditional approach, who would have been your line boss

24 on this investigation?

25 A. One second here.

 

 

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1 Q. You can use a rank or a position, if it would help.

2 A. It would have been the Detective Chief Superintendent

3 for South Region.

4 Q. Thank you. So that would have been the conventional

5 approach?

6 A. Yes.

7 Q. But you didn't have such a line boss in those early

8 days; is that right?

9 A. No, I think that was the point of Kent coming in as

10 advisers and to assist us. Everything I did from their

11 arrival was -- was not put to them for authorisation,

12 but was discussed with them in terms of advice. I

13 didn't go to my traditional detective chief

14 superintendent or the ACC for the region, the Regional

15 ACC, except to the extent that we were looking for

16 housing, accommodation and resources, which clearly was

17 in their hands. But in terms of the direction of the

18 investigation, it was very much myself, M540, working

19 with Sir David Phillips and with Mr Humphreys.

20 Q. And it sounds from this part of your statement as though

21 there might have been times in those early stages when

22 you wished you did have ACPO support and a line boss?

23 A. Well, it was a very, very productive relationship,

24 I thought, with Kent, very cooperative. There was one

25 occasion, I think -- probably two issues where I had

 

 

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1 a different view on an issue than Sir David did. I'm

2 not sure how many people here know Sir David Phillips

3 well, but for a superintendent to tell him three or four

4 times, "I'm sorry, that's not my opinion, that's not the

5 way I want to go", it is a wake-up call in many ways and

6 you do do a pretty good journal entry after the event.

7 But he was very gracious, because in those sort of

8 situations he did agree with me and go down that way.

9 But that's the only time where traditionally you

10 would have went to another ACPO officer and said, "Could

11 you explain to the Chief Constable of Kent why I can't

12 do that". But most of the times I treated them --

13 although I know they were there as advisers, I treated

14 them as the people who clearly I was -- not so much

15 accountable to, but certainly going to explain my

16 actions to, and any situation where they suggested

17 something different should have been done, that was done

18 in that respect.

19 Q. In terms of how you worked with them, can I just ask you

20 to look at the passage of your statement that deals with

21 this in greater detail. Just to pick up a couple of

22 points with you. It begins a paragraph 52 at

23 RNI-811-067 (displayed), and having gone through the

24 points you have just been telling us about in your

25 evidence in relation to your attitude and what you knew

 

 

24

 

1 about the two officers you have mentioned -- in other

2 words, Sir David and Mr Humphreys -- you go on to set

3 out for us how the relationship worked out.

4 Can I ask you to look, please, at paragraph 57,

5 because having set out the benefits of their advice and

6 the role that they played, you say in the second

7 sentence of 57 on the screen that you:

8 "... would have appreciated a more hands-on

9 involvement, but that said, their presence was a very

10 positive thing for the investigation."

11 So can I take it from that that when you heard of

12 the appointment of Mr Port, that, so far as you were

13 concerned, was, as it were, going to fill the missing

14 piece in the jigsaw?

15 A. Yes, I think that's a fair comment. In relation to

16 that, the more hands-on involvement that you have

17 highlighted there, that was specifically in relation to

18 victimology where -- when the family had, correctly from

19 their point of view, felt that they didn't want to deal

20 with RUC officers, I had asked the FBI and the Kent

21 officers could they assist me by dealing with the family

22 and they had a sort of confab and came back and said

23 actually their terms of reference said they only could

24 be advisers and they couldn't take any executive role in

25 that. That's understandable. That was their terms.

 

 

25

 

1 That highlighted to me just the issue of I needed some

2 support in that area that they aren't giving.

3 Q. So just to be clear then, that was an example where it

4 would have been a positive benefit to you to be able to

5 call on non-RUC input, if I can put it that way, to deal

6 with the concern expressed by the family and they

7 weren't able, they felt, to assist you?

8 A. Yes. I think after two or three weeks, it was clear --

9 it wasn't just assistance with the family, but there was

10 a group of witnesses, a body of witnesses out there who

11 had a story to tell who weren't going to tell it to me

12 basically because of what I represented. So clearly the

13 arrival of Mr Port answered those particular problems

14 for me.

15 Q. And this presumably takes us back to the general point

16 that you have been making to us about the difficulties

17 that sometimes got in the way of investigations because

18 of the attitude of parts of the community to policing in

19 general?

20 A. That's correct, yes.

21 Q. Yes. Now, so far as the Kent officers are concerned,

22 can I just touch on one other aspect with you which came

23 out from the evidence of Mr Humphreys. Was there any

24 sense, as far as you were concerned, that the presence

25 of these officers from Kent actually added to the

 

 

26

 

1 already very considerable pressures on you?

2 A. Well, only to the extent at times that sometimes you had

3 to spend time explaining things to people who, if you

4 had just a group of Ulster officers in there, would have

5 been automatic to them. There was things that happened

6 that in certain areas that, you know, they might have

7 obviously, from an English point of view, "Why aren't

8 you doing X?" Then you would say, "That is a Republican

9 device" or that sort of area, that's why that particular

10 incident has happened.

11 But whatever problems was caused by that was more

12 than outweighed to me by the actual benefits that they

13 brought to the investigation. And sometimes when you

14 have to explain things to people, it actually highlights

15 that there is something you can do, and there were

16 compromises and there were some creative approaches that

17 came by because I think, for example -- and I've used it

18 here -- of the whole issue that we had of trying to

19 explain why we had problems with secret material and

20 then actually Mr Humphreys had the solution, which was

21 the secret policy books that we brought in.

22 So there is an example. Once I had explained to him

23 a problem, he had the solution for me and he brought in

24 something which is currently still used in PSNI

25 investigations.

 

 

27

 

1 Q. So in that sense, that example, you were able to draw on

2 his advice and his expertise?

3 A. That's correct, yes.

4 Q. Just looking, if I may, at the question of pressure more

5 generally, again, it is something that emerged very

6 strongly from the evidence of Mr Humphreys and

7 Sir David Phillips, the sense that particularly the

8 early days and weeks of the investigation were being

9 conducted under very considerable public scrutiny and,

10 indeed, political scrutiny, and no doubt that was

11 something of a burden to you as the SIO?

12 A. It caused problems, not the most obvious ones at times,

13 I would have to say. The fact that the murder you are

14 investigating gets, you know, debated in the Congress of

15 the United States and in Parliament and, you know,

16 outside the station it is full of Sky and CNN crews.

17 But one of the difficulties we found, for example,

18 the pressure it created, was the fact that we couldn't

19 get our story in the press. The whole press story quite

20 properly was about Mrs Nelson and what she represented

21 and, you know, my request to have somebody to give me

22 more information about a blue Nova or a white Cavalier

23 car just wasn't hitting the press. That was combined, I

24 think, that week with when somebody decided to bomb

25 Serbia over Kosovo.

 

 

28

 

1 So there were real press problems for us in trying

2 to get our story out. And in fact, that was one of the

3 big plus points of Colin Port. He became the story and

4 we got a lot of very useful media requests out through

5 him simply because the then journalists wanted to

6 interview him, and that was a positive point.

7 But the pressures were more to do with that than how

8 they infringed on our -- just our normal ability to

9 carry out the investigation. It would be fair to say

10 that with the history of the Troubles in

11 Northern Ireland, one was used to a lot of press

12 coverage in a way that maybe a county force in England

13 wouldn't normally have been.

14 Q. Now, so far as Mr Port and his arrival is concerned, you

15 deal with this in the next section of your statement,

16 RNI-811-070, paragraph 63 and following (displayed), and

17 there you set out what you regarded as the positive

18 effects of his arrival and the input he gave to the

19 investigation.

20 I want to touch on some of them with you in

21 a moment, but can I just ask you this: he took up his

22 post in the early part of April, I think, 1999; is that

23 right?

24 A. That's correct. I think somewhere around about 7 or

25 8 April that he started working, yes.

 

 

29

 

1 Q. Thank you. So that's about three weeks after the

2 murder, isn't it?

3 A. Yes.

4 Q. Now, can I take it that in that period of three weeks

5 you had already, as SIO, developed your own

6 investigative strategy?

7 A. Yes, of course. You know, the golden hours that you

8 have at the beginning are terribly important to any

9 investigation, and the investigation clock starts

10 running from the moment you set up the first conference.

11 So clearly there was a considerable amount of work had

12 been done under the advice and guidance of Kent for the

13 first three weeks.

14 Q. And what happened in relation to that strategy upon the

15 arrival of Mr Port?

16 A. Well, as you can imagine, I spent a lot of time

17 debriefing Mr Port in relation to what I was doing.

18 What was important as well was that there was a very

19 long formal briefing on maybe 7 or 8 April, where

20 Sir David Phillips was present, and basically the whole

21 day I went through the lines of enquiry with Mr Port

22 explaining what we had done. And, as I recall,

23 Sir David Phillips was present with Mr Humphreys, who

24 added to the comments that I was making. Then there was

25 other meetings I had with Mr Port round about that time.

 

 

30

 

1 So clearly there was -- I had spent a lot of time

2 with him, but that important meeting was good because

3 clearly what it meant was that the handover was such

4 that I think Sir David Phillips was there to, if there

5 was anything I was overstating or understating, he could

6 pass comment on it. So there was quite a long meeting

7 that particular day.

8 Q. Can I just show you what I think is the Cornwall log

9 note of that, that's the Kent officers' log. That's at

10 RNI-837-027. As you say, certainly based on the number

11 of pages it takes up, it appears to have been a long

12 meeting.

13 Do you see: chaired by Mr Port, but Sir David and

14 Messrs Humphreys and Gutsell were also present. It

15 looks as though it was the note of all the points

16 covered; is that right?

17 A. Yes, that's the Cornwall note of it, yes.

18 Q. Thank you very much. Going back to Mr Port and what you

19 say about the impact of his arrival, as I said, it is

20 dealt with in your statement at paragraph 63,

21 RNI-811-070 (displayed), and there you set out for us

22 the skills and experience that in your view he brought

23 to the investigation and give us in a bullet point form

24 a summary of the relevant points, as far as you are

25 concerned.

 

 

31

 

1 Now, can I just ask you, in this same part of your

2 statement which we have on the screen, to focus on the

3 sentence which says:

4 "Mr Port expected me to carry out the normal role of

5 a SIO and that I did."

6 Because the question I want to ask you is what,

7 following his arrival, was the structure and how did it

8 work in practice?

9 A. Well, we had that awful word that was used in British

10 policing at the time, OIOC -- which was pronounced as

11 "oik" -- officer, officer in overall command, which was

12 not designed for this type of investigation; it was

13 designed for a situation where you had maybe two

14 different police forces, where they had two murders

15 which they thought was linked. Each force would appoint

16 an SIO and then one of the two ACPO officers from one of

17 the two forces would be asked to ensure there was proper

18 sharing of resources and liaison between the

19 investigations. That's what that officer did.

20 In 1999, what you didn't have in British policing

21 was the big concept of a gold commander for serious

22 investigations, particularly critical incident

23 investigations, that developed, certainly in critical

24 incident training, from about 2000 onwards. In fact, it

25 was Sir Hugh Orde introduced the first critical incident

 

 

32

 

1 training for police inside the PSNI.

2 If you were doing this today, you wouldn't have an

3 OIOC. You'd have an SIO and a gold commander who would

4 be an ACPO officer. But that's essentially what Mr Port

5 carried out, what today would be known as the gold

6 commander, which I did as an ACC for a number of high

7 profile investigations in the last few years before I

8 went off, where an SIO worked for me. But in those

9 days, that name wasn't used in Northern Ireland. We

10 used the word -- the concept of an officer in overall

11 command.

12 Just one final point, though: as the investigation

13 developed, we ended up having, for obvious reasons,

14 three teams. You had the MIT that I, as the SIO, was in

15 command of; the collusion team was under Mr Provoost's

16 command, once he had finished the review; and then we

17 had the introduction of a chief inspector from England

18 who handled the intelligence.

19 Now, whatever reason there was at the beginning for

20 creating that and using that OIOC idea, officer in

21 overall command, by the time those three teams were

22 running, you definitely needed an ACPO officer to carry

23 that out. That's one of the key things that Mr Port

24 did, to ensure that there was the necessary liaison and

25 communications between those three areas, because

 

 

33

 

1 particularly in collusion there had to be very good

2 Chinese walls up clearly between that and the MIT, but

3 also some sort of communications.

4 So that was my impression. I was his SIO. He was

5 the officer in overall command. Mr Provoost handled the

6 issues of collusion and you had the Intelligence

7 Officer.

8 Q. So in that sense there were, as it were, three standards

9 to the thing with him sitting on top, if I can put it

10 that way?

11 A. Yes, and he managed that through the senior management

12 meetings where the key players sat as a board to handle

13 that. It wasn't just all going up to him. It is

14 important to appreciate that as well.

15 Q. Were there, in your view, any difficulties with

16 having -- let's use the word -- an OIOC who came from

17 outside Northern Ireland?

18 A. No, because, I mean, the history of the RUC was that, I

19 think -- when I was appointed in 2001, I think I was the

20 first SIO, CID officer, to become an ACPO officer in the

21 RUC for over 20 years. For obvious reasons, uniformed

22 traffic and Special Branch officers had been the ones

23 who generally became ACCs in the RUC. So just at the

24 very bottom level, irrespective of his own abilities and

25 management abilities, which were commendable and very

 

 

34

 

1 impressive, it was an absolute dream to have an ACPO

2 officer who you were working for who actually was

3 a detective, who you didn't explain something about what

4 was happening in HOLMES, you could actually -- he had

5 been there, he had done it. Very much like the current

6 Chief Constable of the PSNI, Hugh Orde, who, again,

7 I worked with.

8 It is a dream situation for a detective who can go

9 and brief a chief constable who has been a detective

10 himself. I'm sure it was the same experience for

11 a traffic officer in the previous. But for me, that was

12 an important point.

13 So there were absolutely no problems, and in fact in

14 many ways, in terms of my experience, Colin Port and

15 Hugh Orde, as a detective, were the best ACPO

16 supervisors I ever worked for simply because of their

17 in-depth knowledge as to how the crime system worked.

18 Q. So that was whether or not their particular experience

19 as detectives had been in Northern Ireland?

20 A. There is a learning curve, of course, in relation to

21 some of the things and, of course, the -- in Mr Port's

22 case he was very much based over here. I mean, I wasn't

23 getting in a plane and flying over to Norfolk and

24 sitting down and saying, "This is what we did this

25 week". Little housekeeping things make a difference in

 

 

35

 

1 this because basically he was on the top floor and

2 Mr Provoost and I, and later M540, shared the same

3 office. The accommodation wasn't brilliant, but what

4 was really good was the sharing of information, and with

5 Mr Port he was at every conference. The SIO did his

6 thing but he was sitting there when he was over, and we

7 met every day and he was regularly in the HOLMES room.

8 So that sort of -- only a person who has had long

9 experience as a CID officer, that he had, would be able

10 to do that. I think that's why his learning curve

11 was short and steep in terms of getting the knowledge.

12 Q. So far as the relationship between the two of you is

13 concerned, you describe it later your statement. You

14 say:

15 "I saw him as my immediate line supervisor."

16 He wasn't trying to do the job of SIO; he was your

17 line supervisor.

18 A. Absolutely correct, that's right.

19 Q. Can I just ask you this question: when Mr Provoost was

20 appointed, after he had completed his 28-day review, you

21 have explained how he took over the Collusion Cell.

22 Where did he feature in the command structure?

23 A. Can you put up paragraph 65 at 071?

24 Q. Yes. RNI-811-071, please (displayed).

25 A. I actually deal with this issue there. I say:

 

 

36

 

1 "My line supervisor was Mr Port except when

2 Mr Provoost stood in for him when he was on leave. That

3 said, I greatly valued the advice and good counsel given

4 to me by Mr Provoost."

5 Q. That's why I asked you the question really: was he

6 somebody above you in the hierarchy or were you just

7 happy to get his advice and counsel?

8 A. No, I think once the review was over, Mr Provoost was

9 appointed, I think, as Mr Port's deputy in relation to

10 the role he was carrying out. But most days, you know,

11 the three of us were there, I would answer to Mr Port.

12 Mr Provoost was running the Collusion, but then Mr Port

13 took leave like anyone else, in which case

14 Arthur Provoost stepped in. He was the OIOC. We had no

15 problems with that. That happens quite a lot in

16 policing where people roughly similar to yourselves are

17 acting deputies. That's something you accept and it is

18 for good management practice.

19 Q. But as I understand it, the thrust of what you were

20 saying earlier is -- and we can see it here on the

21 screen -- that you were, whatever the titles, whatever

22 the formal arrangements, working closely together and

23 alongside each other?

24 A. Yes, I have worked in -- policing is team work, you

25 know. The concept of policing being like Mr Morse or

 

 

37

 

1 Mr Frost on television is not correct. It is teamwork.

2 I have worked in teams all my life. Without a doubt

3 that is the best police team I have worked in in

4 relation to the police teams and the cooperation and the

5 sharing that went on.

6 Q. Now, so far as the way the structure worked in practice,

7 can I just pick up a point you make at the end of your

8 statement at RNI-811-129, paragraph 229 (displayed)?

9 This takes us back to the three parts of the

10 investigation that you helpfully explained to us, and

11 here you are telling us about the particular cases where

12 individuals did not wish information to be passed on,

13 communicated to, any RUC officer. How was that handled

14 in practice? Can you help us with that?

15 A. Yes, indeed. First of all, I didn't even know the

16 identities that these sort of people had come into. You

17 know, their backgrounds. It wasn't a matter of me not

18 just seeing the contents of a statement; I wouldn't have

19 known that these people had been asked to make a statement.

20 Most of these requests were put out through the Norfolk

21 addresses and phone numbers I believe that we put out.

22 We always had available a landline that could be used by

23 non-RUC officers, and that's one of the things that we

24 advertised. So clearly there was a lot of stuff that

25 came in.

 

 

38

 

1 Now, when that came in, it was processed with

2 Mr Provoost and Mr Port and there were times, of course,

3 that certain questions had to be asked of the HOLMES

4 system on MIT in relation to those; you know, where

5 a witness had come and spoke to Mr Provoost -- I will

6 use an example here that's not true, but say that -- I

7 don't want to talk to the RUC, I want to let you know

8 that I saw a red tractor near the end of Mrs Nelson's

9 street on the Sunday afternoon. Clearly there was going

10 to be sideways exchanges come in from the collusion team

11 asking us can we produce all information in relation to

12 red tractors that are currently on the MIT. And that

13 would have been somehow or other put back to a name for

14 that particular witness statement to make sure that the

15 benefits of the HOLMES system weren't lost.

16 But no RUC officer ever saw that statement or had

17 any idea who had made a statement or saw any contents or

18 knew why the question about the red tractor initially

19 had been raised, but the people who did receive

20 the statement had full access to the MIT HOLMES system

21 and could ask the relevant questions.

22 Q. So were there occasions when these Chinese walls that

23 had to be erected, for the reasons that you have

24 asserted, caused difficulty in terms of the

25 direction of the investigation?

 

 

39

 

1 A. No, there was certain rules that you had to adhere to,

2 like you introduced in your opening statement today

3 about issues to do with redaction. And clearly we had

4 phone calls that would have come in to Arthur Provoost

5 that he just gave me the look and I walked out the room.

6 Q. I wish our redaction process was as easy as that.

7 A. Which was understandable, and you would have went in and

8 there was a meeting going on and there was a note on the

9 door "collusion team meeting" and you knew what that

10 meant.

11 You are obviously going to interview M540, but

12 certainly the two of us went out of our way to honour

13 those arrangements because, because of the existence of

14 those arrangements a vast amount of information come

15 into this Inquiry that would not have come into an RUC

16 alone enquiry. And any hint or any -- you know, any

17 situation that would have arisen whereby there would

18 have been leakage sideways, that actually would have

19 undermined the confidence of the people who had come

20 forward to Mr Port and Mr Provoost.

21 Our interest was finding the people who had killed

22 Mr Nelson. There was no issue of ego in the fact that

23 we weren't seeing some of the statements. It was really

24 good to get those statements in, but that meant

25 honouring the arrangements.

 

 

40

 

1 Q. Thank you. Can I just turn to consider with you the

2 question of the manual, which you have already mentioned

3 when talking about Mr Humphreys. This is the murder

4 investigation manual and you have a section on this at

5 the end of your due diligence statement. It is the

6 penultimate section, I think. It begins at

7 paragraph 247 at page RNI-811-136 (displayed).

8 In this section you set out the process, in

9 particular in paragraph 248, which takes us over to the

10 next page and, indeed, the one after that, to

11 RNI-811-138 (displayed) -- the process by which ACPO

12 guidance or guidelines were put into force, if I can put

13 it that way, within the RUC, then PSNI. I don't want to

14 go into that in any detail because it is all set out

15 very clearly in your statement.

16 So far as how this process worked in practice is

17 concerned, you touch on the question of Ulsterisation

18 and that is in the paragraph we have on the screen, and

19 perhaps you could just tell us briefly what that term

20 means in this context?

21 A. Well, basically what it meant was that for -- the

22 previous paragraph, I think -- without going into

23 detail -- there is (a) to (d) in paragraph 248

24 highlights some of the key operational differences in

25 Northern Ireland. And what that meant was that when

 

 

41

 

1 ACPO produced policies, they were -- basically when they

2 came into the RUC, they would have went to the ACPO

3 officer in charge of that area. A simple example would

4 be like a traffic -- the introduction of a new traffic

5 speed gun, say. That doesn't cause any difficulty.

6 That would go to the Head of Traffic, he had look at it.

7 The Chief Constable's directions to the force in the

8 90s were through a thing called a force order, which is

9 now called a general order. We would get the equipment,

10 out would go a general order saying, "This is the new

11 speeding gun, this is how it works, this is the

12 training, this is the way you comply with the

13 regulations". And that's a simple one that would

14 happen.

15 Because of the things I have said earlier about (a)

16 to (d), there were some things that would be normal in

17 England that just were a nightmare for us. We had

18 difficulties in relation to the legal situation, the

19 environmental situation, the way the public viewed

20 policing, from bringing certain things in. And

21 consequently, sometimes they didn't come in at all and

22 other times they were heavily changed to try and make

23 them -- that they could be used on the ground in terms

24 of ordinary police officers.

25 So what I'm saying is that Ulsterisation was the

 

 

42

 

1 process whereby the head of the relevant department

2 would take something, look at it and change it so that,

3 frankly, it was able to be operationally used and would

4 complied with the legal requirements.

5 One last thing -- I know you skipped them, but

6 people miss the point about the legal requirements. The

7 standard operating legal requirement in England is the

8 Police and Criminal Evidence Act. People don't realise

9 that's only England and Wales. It never applied to

10 Northern Ireland. It was the Police and Criminal

11 Evidence Order over here. Of course, it wasn't a

12 straight lift; it had four sections different and all

13 the numbers were different. And then when you're

14 through to terrorism, is wasn't PTA, it was the Northern

15 Ireland Emergency Provisions Act. People like myself

16 could authorise things without a warrant that no other

17 officer in England and Wales could do.

18 So even bringing in something very basic to do

19 with fire arms legislation or a fire arms act meant that

20 everything in Northern Ireland had to be different from

21 the ACPO guidance that came out because there were

22 different offences, different powers of police officers.

23 So it basically had to be just rewritten.

24 I know it is a dreadful word but "Ulsterisation" was

25 used as the process whereby we tried to keep ourselves

 

 

43

 

1 in line as much as possible with British policing by

2 adapting British policies.

3 Q. Now, so far as what you are saying in this section of

4 your statement is concerned, as I understand it, what

5 you tell us in 252 -- which is on RNI-811-139

6 (displayed) -- we have it on the screen now -- in

7 relation to the murder investigation manual, is that:

8 "... it had no official part to play in the policing

9 of Northern Ireland until April 2001 at the earliest, or

10 probably more realistically September 2001."

11 That's the nub of what you are saying in this part

12 of your statement?

13 A. Yes, in my experience the first copy of the murder

14 manual that I saw was the one that Mr Humphreys' staff

15 brought through the door. I had never seen it before.

16 Q. No, but you knew, didn't you, that he had been involved

17 with Sir David in preparing the murder investigation

18 manual?

19 A. Yes, I knew he had been -- because of the lecture I had

20 been at where he had told us what he was doing.

21 Q. I think it was he who recalled you introducing him as

22 the author of manual?

23 A. There was the usual sort of management reason for that.

24 I was bringing this stranger into a conference with

25 a lot of Ulster detectives. I said a lot more than

 

 

44

 

1 that. I was introduced him. I was selling him

2 basically because I genuinely believed he was someone

3 who was coming in to bring something of great value to

4 the investigation. And one of the highlights to me was

5 to say he is such a significant detective. He's the one

6 who was asked last year to draft a new murder

7 investigation manual. I had to spend some time after

8 that explaining what that was because none of them,

9 obviously, knew. But that was the reason for that.

10 Q. But presumably you knew, even if they didn't, that it

11 was a collection of best practice in murder

12 investigations throughout England and Wales?

13 A. Yes, I could recall what he said in his lecture, what he

14 had told us in the course of drafting and bringing this

15 up. But at the lecture there was no copies given out,

16 but he indicated the sort of things that were in it,

17 that's correct.

18 Q. When you were telling us, as you were earlier, that you

19 were very grateful to draw on support and advice from

20 the Kent officers and particularly from Sir David and

21 Mr Humphreys, you must have been pleased that in those

22 two people you had, in effect, the experts on this area

23 of investigative work?

24 A. Yes, certainly they would have been deemed, certainly in

25 England and Wales, to be the lead experts in terms of

 

 

45

 

1 crime investigation.

2 Q. Yes. And when you were joined by Mr Port and no doubt

3 Mr Provoost, they were presumably also, as serving

4 officers in England and Wales, well aware of the

5 principles set out in the manual?

6 A. I can't answer that because I can't recall

7 a conversation at the time in relation to whether it was

8 being used in their forces. I do recall doing some work

9 recently when I did this in relation to when this manual

10 was introduced in various English and Welsh forces.

11 I actually think it wasn't printed until February 1991,

12 several weeks before Mrs Nelson's death.

13 Q. 1999, you mean?

14 A. Yes, 1999, sorry. Several weeks before her death, and

15 you can check on that, but I do think it was that late.

16 We checked with a number of English forces,

17 certainly my recollection was -- and I'm sure Mr Port

18 will give this evidence -- my recollection was that it

19 was quite spasmodic in terms of which particular forces

20 had it and was using it at the time of March. So I

21 can't say whether either of them had used it before,

22 I somehow doubt that.

23 Q. Of course, if it was simply a collection of established

24 best practice, whether or not it was printed and whether

25 or not it was formally introduced is neither here nor

 

 

46

 

1 there, is it?

2 A. No, I disagree with that. I think it is a significant

3 change. It introduced a series of concepts that

4 wouldn't necessarily have been part of the normal

5 management practice or, should I say, training of

6 officers concerned. I mean, we had to introduce

7 a massive new training course for our SIOs in relation

8 to that. The manual, when it came out, the second

9 edition basically, which is the one that the PSNI

10 used -- yes, it was drawn from best practice throughout

11 many forces but it developed best practice. There is no

12 way you could say, for example, that the sections on

13 hypothesis or victimology -- I'll use those two

14 examples -- were concepts in the form it was written

15 that were in the heads of SIOs. Certainly none of my

16 SIOs were trained in that; I don't think any British

17 SIOs were trained in that. That was what was remarkably

18 new about the murder manual.

19 Q. In your statement, the second statement you have

20 prepared, you tell us in paragraph 45 at RNI-811-160

21 (displayed) that from the moment you were appointed as

22 SIO you were:

23 "... determined that the Murder Investigation Team

24 would operate at the highest standards and be methodical

25 in everything it did."

 

 

47

 

1 So far as murder investigation was concerned, the

2 manual represented best practice, did it not?

3 A. Are you talking about what was in my head in 1999?

4 Q. Yes.

5 A. No, I had never read the thing.

6 Q. You tell us that you wanted to follow the highest

7 standards?

8 A. Yes.

9 Q. So far as that was concerned in murder investigations,

10 the murder investigation manual represented those

11 standards, did it not?

12 A. No, I would disagree with you, Mr Phillips. I'm sure

13 that's the way it was written, and when people were

14 trained in it, you know, they would have been the

15 standards they would have worked to. But basically this

16 was a very large volume that appeared that was drawn on

17 best practice throughout the United Kingdom, primarily

18 in non-terrorist murder investigations. And certainly

19 within a few months it required to be amended anyway

20 because the Human Rights Act was nowhere mentioned in

21 the whole murder manual. And I mean, that was one of

22 the major points that we had to change.

23 So consequently I wouldn't say that at 1999, when

24 that book came in, was sat on the table, I would have

25 turned round and said that was the best practice guide

 

 

48

 

1 for me because I hadn't read it.

2 Q. You didn't read it or seek on familiarise yourself with

3 it over the next weeks and months?

4 A. Have you any idea what it is like running a category A

5 murder investigation? Your capacity to sit down and

6 read a book that's several hundred pages long that

7 requires extensive training of SIOs -- I would have

8 loved to have sat down with the writers of that volume

9 and had a long chat and perhaps had training on it, but

10 I was running a live investigation. We're talking about

11 here these officers appearing during what was often

12 called the golden hours of the first number of days in

13 an investigation. If I had sat down there and said,

14 "I'm not going to pay any attention to this forensic or

15 other intelligence material coming in because I want to

16 read this volume" I think that would have been a serious

17 neglect of duty.

18 Q. You think, do you, that concentrating on what you

19 regarded as the relevant sections of the manual would

20 have been to neglect your duty to the investigation?

21 A. No, I didn't say that. I said in light of just having

22 the time to read the whole particular volume.

23 What did happen was that Mr Humphreys and I had

24 various conversations with lines of investigation and we

25 agreed that, you know, there might be areas worth

 

 

49

 

1 looking at and one in particular was victimology.

2 Q. Because presumably you were prepared to accept that

3 there might be useful things that you could learn?

4 A. Clearly. I have no doubt at all that the murder manual

5 contained matters that would have been of interest to

6 an SIO. But on Day 1, 2, 3, 4 of a category A murder

7 investigation that for me was not the time to sit down

8 and try and understand and read that particular volume.

9 The reason it came over from Kent was that they

10 realised we had never seen it or heard of it before. It

11 is not like a general order from your Chief Constable of

12 four pages that you can take away for a couple of hours.

13 This is an enormous volume that required serious

14 thought, and also not only required training but

15 required resources to change the way we handled an

16 investigation.

17 So it wasn't easy for me to sit down and be able to

18 spend the relevant time that was required just to be

19 able to look at it in the way that you have described.

20 Q. Now, Sir Ronnie Flanagan, when he was asked about this,

21 said that although it hadn't been introduced to his

22 force, at the time he was Chief Constable he expected,

23 especially given the involvement of Mr Humphreys,

24 Sir David and then later the English senior officers,

25 that the Murder Investigation Team would be aware of it

 

 

50

 

1 and have followed its principles because, as he put it,

2 it represented established principles of best practice.

3 Don't you think that's a fair way of putting it?

4 A. Well, I'm not here to criticise my Chief Constable at

5 the time, but certainly it wouldn't have been my view

6 and I don't think Sir Ronnie Flanagan would have read it

7 at the time either in relation to that. But, no, that

8 wouldn't have been certainly my view at the time in

9 relation to it, my ability to be able to sit down and

10 read that size of a volume and learn it and sort of use

11 it in the way that you have described.

12 Q. Now, can I just ask you to look finally on this at

13 RNI-917-051, which is a passage of the agreed summary of

14 the murder investigation, agreed by the MIT and the

15 Inquiry, in relation to this? RNI-917-015, please

16 (displayed), paragraph 2.7.2.

17 Here, there is a paragraph dealing with MACER

18 first of all, to do with the incident room -- do you see

19 at the beginning of the paragraph? And then at the end

20 is goes on to deal with the murder investigation manual,

21 and it says:

22 "As to investigative methodology, the murder

23 investigation manual which was adopted by police forces

24 in England and Wales in 1998 was not formally adopted by

25 the RUC until 2000."

 

 

51

 

1 I assume you would want to correct that and say

2 2001?

3 A. Yes, my research indicated it was 2001.

4 Q. "But the MIM was a document familiar to the individuals

5 who made up the senior management team."

6 Again, just to be clear about that, are you saying

7 that if that applied, it only applied to the English

8 members of the individuals who made up the senior

9 management team?

10 A. No -- maybe I put this the wrong way. In the sense of

11 it being a document familiar to us, yes, after it

12 arrived, if somebody had asked me, "Did you know

13 in April 1999 that there was a murder investigation

14 manual?" I would have said, yes, of course I did, it

15 came over from Kent. "Did you study it?" As you said,

16 "Did you look at it and read it, did you think it was

17 best practice, did you apply it?" No, I didn't, not in

18 all its facets because some of it is irrelevant, some of

19 it I did look at on the advice of Mr Humphreys and large

20 parts of it I did not have time to look at simply

21 because of the nature of the investigation.

22 It was familiar to me but it wasn't actually known

23 in detail to me, nor was it applied in detail to me

24 except as where the Kent officers brought certain parts

25 to my attention.

 

 

52

 

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

2 THE CHAIRMAN: Certainly. We will have a quarter of an hour

3 break, Mr Kinkaid.

4 (3.18 pm)

5 (Short break)

6 (3.35 pm)

7 DAME VALERIE STRACHAN: Before you leave the murder

8 investigation manual, Mr Phillips, could I ask you,

9 Mr Kinkaid, there has been a fair bit of discussion

10 between you and Mr Phillips about whether you read it

11 and why you didn't, et cetera. I'm conscious that from

12 one of your answers you pointed out that Mr Humphreys

13 was with you. Do you think that in practice you got the

14 essence of what was in the murder investigation manual

15 from Mr Humphreys directly?

16 A. Yes, if you read the Op Cornwall log, you will see at

17 times Mr Humphreys talking about issues like the

18 documentation that -- the example I give was the secret

19 policy logs, which actually is mentioned in the murder

20 investigation manual, and other approaches that could be

21 used for some of the problems I was facing.

22 At the time, I wouldn't have been aware that it was

23 from the manual, if you know what you mean. We were

24 talking live about, "How are we going to deal with this

25 intelligence? How do I store it in a way it's not on

 

 

53

 

1 HOLMES, which is only a confidential -- you know, IT

2 system?" And he gave me advice which later on, when I

3 had chance to read the manual, there it was in the text,

4 if you know what I mean. But he didn't actually say to

5 me, "You have to do paragraph 493 of the manual". That

6 wasn't the way he dealt with things.

7 To that extent, yes, it was clear he was influenced

8 by some of the good practice that was in the manual and

9 he passed it on to me. If you look at Cornwall, it

10 doesn't say things like -- their log does not say,

11 "I emphasised to the SIO to follow chapter 4,

12 paragraph 9". He just introduced it as an idea.

13 THE CHAIRMAN: You were getting if from the horse's mouth?

14 A. I think I was getting a redacted approach in relation to

15 it. There was clearly things that, looking now at the

16 manual, for example, are not applicable at the time.

17 I mean, the section, for example, on informants it

18 actually says is written with ACPO Crime Committee

19 informants in mind, not national security agents, which

20 is what we were dealing with. And he didn't, for

21 example, introduce any of the detail about this because

22 I'm sure after a day or two he realised that the whole

23 issue of intelligence and informants and agents in

24 Northern Ireland was different to what he had envisaged

25 when he wrote that particular chapter. So, I mean, that

 

 

54

 

1 never was raised with me.

2 MR PHILLIPS: Can I just pick up a specific line of advice

3 that Mr Humphreys and Sir David told the Inquiry that

4 they were keen to stress to you at the time, and this is

5 the need for the SIO to keep an open mind; in other

6 words, to continue to question a theory. A hypothesis

7 is the term they use in the manual.

8 Now, in the log there are various examples of where

9 one can see them recommending that you don't dismiss

10 things, that you challenge things, et cetera. Was that

11 advice that they were giving to you at the time?

12 A. Yes, and it went both ways, may I say, because there are

13 two classic examples on the Cornwall log where

14 Sir David Phillips has a line that needs taking and it

15 is the SIO who challenges it as being a fixed line.

16 Q. Is this in relation to victimology?

17 A. Yes, where -- no, also where he came back after being

18 given a briefing about the confident forensic

19 information he had got. And with the basis of my

20 experience in Northern Ireland and other aspects, I sort

21 of pulled him down a little bit and said, "That's not

22 exactly -- the reality is that that's not just as good

23 as you think it is in relation to what you are looking

24 at". It was to do with whether or not he wanted me to

25 do a media broadcast in relation to it and I said no,

 

 

55

 

1 simply because I said there was a need for more a open

2 mind. You can see it works both ways. There were times

3 they had it and there were times I had it.

4 Q. Yes. Now, so far as this principle of keeping an open

5 mind was concerned, how in practice did that work

6 through? How did you follow that principle in the

7 investigation?

8 A. Well, I mean, I think it is a standard practice of

9 a good SIO that you challenge the information that comes

10 across your desk. Clearly sometimes the length of time

11 you have to challenge is quite short. Somebody comes --

12 I can think of situations in the investigation we were

13 told that there was an item at a certain house and there

14 was a public safety issue. Well, basically it's just

15 the time of getting your search team out and getting the

16 warrants or the authorisations that you apply for. But

17 lots of information isn't of that sort of hot pursuit

18 nature, it is stuff that needs to be developed and

19 looked at.

20 The information that certainly came into me had to

21 be challenged just simply by validation, and that was

22 done in two ways. I think the documents show that. We

23 asked questions of the sources of the information,

24 detailed questions. I'm aware of your opening

25 statement, so I'll just say document 95 would be

 

 

56

 

1 a classic example of where you can see Mr Gutsell and

2 I going to two ACCs at Headquarters and spending

3 a considerable amount of time trying to get behind the

4 first three action sheets that we got on what exactly

5 the cryptic words meant. And then a whole series of

6 reports that we wrote to various senior officers in

7 relation to other intelligence, again, challenging and

8 trying to see what the background was to that. And even

9 (redacted) where we could, subject to the rules

10 at the time, put officers in to speak

11 direct (redacted) and ask questions, not through a third

12 party but direct.

13 Now, the second area of course on top of that for

14 validation was the amount of work that we did separately

15 to corroborate the information. It is one thing to ask

16 questions of (redacted) as to why did you think of that.

17 It is equally important to see how does that

18 intelligence fit in with that forensic, with the

19 telephone analysis, with a whole range of areas. Those

20 are the two things that are added on to challenge.

21 Q. Can I just make a couple of points, and they are not

22 questions. The first is -- and I should have said this

23 before -- please try to bear in mind our stenographer.

24 Sometimes your pace is, I think, a little quick for her.

25 Secondly, just so that everybody else is keeping up,

 

 

57

 

1 the document you have just mentioned as 95 -- I am

2 afraid we have all had to get used to very different

3 numbering. Some of us are perhaps more used to it than

4 others, and the relevant document I hope you will

5 confirm is at RNI-914-348. It will come up on the

6 screen, or at least I very much hope it will

7 (displayed). Excellent, thank you very much.

8 Is that the note that you are talking about?

9 A. That's the preface.

10 Q. Indeed.

11 A. The important note is the next two pages.

12 Q. Absolutely. Can we just start here. We will start at

13 the beginning in perhaps a conventional way and then

14 move on to the second page which is at RNI-914-349

15 (displayed).

16 A. Yes.

17 Q. And, again, it is a heavily redacted page.

18 A. I understand, yes.

19 Q. One can see, can't one, some questions from you, 1 to 6,

20 and further requests, 1 to 4?

21 A. Yes, there are six questions, and bearing in mind the

22 redaction, they are six questions about further

23 questions about three suspects mainly. And on the

24 information that we had got in -- which, unfortunately,

25 the first question 1, for example, was a question

 

 

58

 

1 that -- I appreciate that there is a bit that has been

2 redacted there, but it is nothing to do with the names.

3 The question was: What exact role? You have told us so

4 and so played a role, and I gave examples of, you know,

5 what -- did they drive the car, did they act as lookout.

6 I gave a number of examples there simply to try and give

7 a flavour to Special Branch as to what I was seeking

8 behind the information they give me. And that carries

9 right down 1 to 6, which asks a number of specific

10 questions, some of which are relevant to the obstruction

11 interview where there was undisclosed intelligence.

12 Then the bottom four were general requests, more to

13 do with systems, about surveillance logs and access to

14 various things, and that's how they were laid out, like

15 that.

16 Q. We are going to come back to that, but I simply wanted

17 everybody else to know what you were talking about when

18 you were talking about document 95.

19 There is, I think, one thing I can ask you in

20 relation to this. As you have indicated, names have

21 been redacted in a number of the questions. Would it be

22 right to say that the names are the names of -- I'm

23 going to put it this way -- the core suspects?

24 A. The names of the first core group of suspects I was

25 given, as I say, the first three or four intelligence

 

 

59

 

1 documents that came from South Region Special Branch

2 because the date of that meeting is (redacted) March and

3 it is still when myself and Kent are there. It is

4 before Mr Port arrives.

5 Q. Would it be fair to say that at the time you left the

6 investigation at the end of August the following year,

7 those remained -- again, I'm going to put it this way --

8 the core suspects, or amongst the core suspects?

9 A. I think your second phrasing is better because, you

10 know, I'm aware of the significant help in that. In

11 your opening statement to the Inquiry, you defined the

12 hypothesis, if I can use that term, the key one, the

13 main one, in relation to the involvement of Mid Ulster

14 LVF. As the SIO, mine would have been slightly wider

15 than that. It may help you to know what my thinking

16 was.

17 Q. It would, certainly.

18 A. It was that Mrs Nelson died as a result of the actions

19 of a number of dissident Loyalists from Belfast, South

20 Antrim and definitely Mid Ulster in the construction,

21 transporting and placing of an undercar booby trap

22 device. That's just a slightly wider terms, but

23 includes everything that you have defined. And that

24 certainly was the driving force and a lot of those

25 questions that are on there relate to people who aren't

 

 

60

 

1 also named in that first document, but other people who,

2 from (redacted) intelligence, it was indicated may have

3 also played a part.

4 Q. Yes, thank you very much. As I say, we will return to

5 this.

6 Can I just complete the limited number of questions

7 I wanted to ask you about this idea of keeping an open

8 mind and the question of how that follows through, in

9 practice I mean, not in theory; in practice and in

10 investigation.

11 What Sir David said in his evidence is:

12 "We are looking not only for evidence to confirm our

13 hypothesis, but also for evidence to counter it and if

14 we don't, then surely the defence will."

15 So does that represent sound advice, so far as you

16 were concerned?

17 A. Yes, I'll go slightly further than that as well. In the

18 sense that -- a lot of these questions were based on the

19 fact, for example, that there may be conflicts in the

20 intelligence that you have. So you are asking those

21 questions for that. But equally, what's important is

22 when you have this main hypothesis running through -- no

23 doubt you will get on to it later -- but you also get

24 lots of other stuff coming through which has to be

25 equally looked at.

 

 

61

 

1 The danger you have to avoid is because you have

2 this one, you are not going to pay any attention to the

3 rest.

4 Q. Yes.

5 A. So consequently, an open mind requires you to say, "Yes,

6 that is a main line of enquiry for us. Here's two other

7 interesting ones and we are going to spend equally

8 resources on them to actually prove or disprove that

9 they're valid hypotheses as well." And that's one of

10 the things that we did.

11 Q. Is it possible to import systems into investigation

12 which, as it were, ensure that periodically, every so

13 often, the state of play on each theory, each

14 hypothesis, however you want to put it, is reviewed,

15 questioned, challenged, before you carry on in that

16 particular way?

17 A. It is dangerous to say there is a formal system.

18 I mean, for example, conferences are a great place to

19 get -- imaginative ideas coming from the floor because,

20 bluntly, many of the experienced detectives had some

21 tremendous ideas that came from the conferences, and I

22 think I've given some examples, in my statements, that

23 were used.

24 But the problem with conferences is you have so many

25 people present naturally that a lot of the sort of

 

 

62

 

1 conversations that you would have on challenging

2 hypotheses would have required you -- like, the

3 difficulty we are having here -- to start talking about

4 (redacted) information that had come in

5 or very sensitive parts of your forensic examination.

6 So consequently, a lot of what I call the

7 imaginative conversations before Colin Port arrived were

8 between myself and Mr Humphreys and Sir David Phillips.

9 And after they had gone, certainly between myself,

10 Arthur Provoost, Colin Port and M540 and the key people

11 running the intelligence team. Now, there were regular

12 meetings where we talked about various options in

13 relation to the main hypothesis and the alternative ones

14 that we were looking at. Clearly, yes, I do recall

15 those.

16 SIR ANTHONY BURDEN: Can I just come in there. You have

17 just used a term for a second time. On the first

18 occasion you said when you have this main hypothesis

19 running through. How early on and at what stage did you

20 regard this to be the main hypothesis?

21 A. Well, I suppose it would have been in in the first

22 couple of days (redacted)

23 (redacted). I think I would have to also add to that

24 that one of the difficulties, I suppose, coming from

25 outside is that I was not a Martian dumped into Lurgan

 

 

63

 

1 on the day of the murder and asked to take over it. I

2 was someone who had, for example, had been at the scenes

3 of some of those previous Loyalist bombs, for example,

4 the first one in Ardoyne, as the senior detective there,

5 and my deputy had been at other LVF investigations and

6 scenes prior to that. So clearly once we had talked to

7 the forensic scientist and we got a flavour of (redacted)

8 (redacted) intelligence and what we knew about motive and

9 other aspects like that, that particular line of enquiry

10 was clearly going to be an initial one that we took

11 seriously.

12 Over a period of time, it did strengthen in terms of

13 the material we got that corroborated it, but from the

14 very beginning the idea that a Loyalists had killed

15 Mr Nelson was an idea that we had to take seriously.

16 SIR ANTHONY BURDEN: But from what you said to Mr Phillips,

17 not to the exclusion of other possibilities?

18 A. Yes, I mean, I said they had to be taken seriously and

19 as you said, yes, there clearly was -- it wasn't the

20 only -- I don't want to use the words "hymn" and "hymn

21 book", but it wasn't the only issue that we were looking

22 at and there was all these other matters that had to be

23 looked at equally importantly, and the example you gave

24 there was of collusion.

25 SIR ANTHONY BURDEN: Okay, thank you.

 

 

64

 

1 MR PHILLIPS: In terms of process, if I can just ask this

2 question: when you go through the discussion in which

3 you are considering and, in some cases, no doubt

4 discounting possibilities, what does that mean in terms

5 of keeping a record of that sort of theorising or

6 thinking in investigation? Is it good practice to

7 record that sort of discussion even if its conclusion is

8 that a line or a theory should be stayed or not pursued

9 any further?

10 A. It wouldn't be in my experience, and I stand to be

11 corrected but I don't think even the murder manual,

12 first or second edition, anywhere indicates that it

13 should be recorded.

14 As the ACC Crime, I would have had a lot of dealings

15 with the CPS, before it was called the

16 Director of Public Prosecutions, and there was at least

17 two occasions that I was asked to brief an existing SIO

18 and remind him that his policy book, as one officer

19 said, was not the minutes of the university

20 philosophical debating society. His prosecuting counsel

21 said to me. Clearly a policy book is for putting firm

22 lines which give rise to executive action and, you know,

23 it does make it difficult in cross-examination, for

24 example, in a hearing, to say why you arrested somebody

25 when the policy book was full of lots of other

 

 

65

 

1 possibilities other than the person who is sitting in

2 the dock in terms of the prosecution.

3 So clearly the line was, yes, think of these things.

4 Once you have made your mind up with various lines, put

5 them in your policy book in relation to the firm avenues

6 you are going down.

7 Q. Just to be clear, is this the point you are making in

8 your statement at 236, subparagraph A in RNI-811-132?

9 Is that where you are saying it wouldn't be right to put

10 down musings, I think is the expression you use there?

11 A. Yes. As I say, it is not on screen, but

12 paragraph 237(a), (b) and (c), I highlight there that,

13 yes, have an open mind, but the Chief Constable requires

14 you to justify your actions, particularly in terms of

15 house searches and arrests that could give rise to civil

16 hearings and Crown prosecutions.

17 So consequently, just because you sit for

18 five minutes or 10 minutes -- is there anything about

19 this intelligence that we can challenge when we think

20 about things. If it ends up that you are going for

21 a prosecution, that can't have equal status in your

22 policy book as the right grounds, the strong grounds

23 that come in for you to do a house arrest that you have

24 properly looked at.

25 So that's why in my statement at 236 I laid that

 

 

66

 

1 out, to highlight that fact. That doesn't mean to say

2 you are not keeping an open mind. It just doesn't mean

3 you've tonnes of records of what --

4 Q. That's the point, isn't it? And I asked the question

5 about record-keeping, but the principle of the thing as

6 articulated by the Kent officers is good sound police

7 practice, isn't it?

8 A. Yes, and it would have been my practice before they

9 arrived certainly, yes.

10 Q. Can I just pick up on something you said in answer to

11 Sir Anthony's question, namely that you weren't

12 a Martian, and that's a point that you make in

13 a slightly different way in paragraph 185 of your

14 statement at RNI-811-107 (displayed), where you say in

15 the fifth line:

16 "An RUC SIO was not facing a blank canvas. He came

17 to the issue of suspect selection with previous

18 experience as to how the terrorists operated."

19 As I understand it, that's what you are getting at

20 in that part of your statement?

21 A. That's correct.

22 Q. Thank you. Again, can I just ask you to consider the

23 other side of this -- and obviously there is an

24 advantage in not coming from Mars and having the

25 relevant local experience. Yes, one can understand

 

 

67

 

1 that. But there were also potential disadvantages,

2 weren't there, in the sense that you might draw on your

3 experience rather than focusing closely on the

4 particular facts of the particular case?

5 A. Yes, I think like anything it is a matter of balance in

6 life. There are advantages in having previous

7 experience that allows you to identify things that are

8 important and priorities, but what you can't do is let

9 that encourage a closed mind. That's something you have

10 to keep challenging yourself in relation to what you

11 have seen.

12 And certainly in my experience in policing, after so

13 many years, you know, the capacity to be surprised goes

14 simply because of the amount of things that appear, and

15 strange situations, in terms of your investigations --

16 that's life, so it is. And clearly there were things

17 that didn't always fit into the usual previous systems,

18 but I do think you can't downplay the significance of

19 the experience because it does help you at times

20 interpret the facts that you are seeing.

21 You know, a good example would be the fact that

22 a previous incident had occurred which, on face value,

23 might look the same as the one you are investigating,

24 but if one address -- I can give you an example from

25 Northern Ireland -- is Carrowdore and the other one is

 

 

68

 

1 Crossmaglen, just because they both involved the use of

2 a Kalashnikov. I think most people from

3 Northern Ireland would know that there's a fair chance

4 that one was Loyalist and the other one was Republican.

5 It doesn't mean to say you don't look to see whether

6 they wouldn't be, but that's a reasonably good

7 assumption to start with bearing in mind the history of

8 the Troubles and the events that happened there.

9 One last point which just shows you the value of

10 this: There is a database used in England called the

11 (redacted) database, which is related to non-terrorist

12 murders which is of great use to investigators

13 throughout the United Kingdom, including here as well,

14 where, over a period of years and years, they have put

15 in the salient facts of murders so that you can go and

16 say to them, "Tell me, on the basis of the last

17 30 years' murders, how many cases involving a murder or

18 a body was deposited in the middle of a field more than

19 50 yards from a nearby road? Was it found in the end

20 that the culprit was a member of the family or someone

21 close to them?" And because they are dealing with

22 a large database they come back to you, "Yes, in

23 74 per cent of the times that happened, or 85 per cent."

24 So that is a procedure that's built by the SIOs

25 feeding in at the end of every murder investigation, and

 

 

69

 

1 I have done it myself, particularly non-terrorist ones.

2 The salient facts of the investigation allow that

3 database to be built up. That's nothing else but

4 previous experience being used to advise current SIOs as

5 to the likelihood, but it is only a likelihood of

6 something they should still seriously look at.

7 Q. Thank you very much. Now, can I ask you to look with me

8 at two parts of your statement in which you summarise

9 your early views about this case, which I'm then going

10 to take as an introduction to a topic which you devote

11 a good deal of both your statements to, and it is the

12 final contextual topic we will look at, namely the

13 question of intelligence. You have already, if I can

14 put it that way, jumped ahead to part of it.

15 I am afraid we are coming back for an altogether

16 closer look at it. The first of the two paragraphs is

17 paragraph 36 at RNI-811-062 (displayed), where you say

18 in the very first sentence:

19 "All the facts known to me in the hours following

20 the murder suggested that Loyalist terrorists were

21 involved."

22 And as you have already explained, there came a time

23 relatively early on, didn't there, when you began to

24 focus on core suspects?

25 A. That's correct, yes.

 

 

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1 Q. Now, so far as that is concerned, in the other part of

2 the statement I want just to show you briefly, right at

3 the end, paragraph 187 under the heading "Reasons for

4 targeting Loyalist suspects" at RNI-811-108 (displayed),

5 you set out what in your view were the main factors

6 pointing to the involvement of Loyalist terrorists in

7 the murder. You then make a series of, again, very

8 detailed comments under each heading, and the headings

9 are first "Intelligence", then "The Media", "The claim

10 of responsibility" and the "UVIED". Perhaps for

11 everybody's benefit you could explain what those

12 initials stand for?

13 A. I would assume that to be under-vehicle improvised

14 explosive device.

15 Q. So did I, excellent. And then "Motive" and "Contact".

16 Then you carry on into some further detail after

17 that. But so far as the main issues are concerned, the

18 first one you touch on is, as I have said, intelligence,

19 and I would like to try and put this in context by

20 asking you questions next about your other statement,

21 the one you have given to Eversheds.

22 In that statement you set out for us your views,

23 based on your experience in relation to the very

24 particular context in which intelligence was gained,

25 generated, disseminated in Northern Ireland at the time

 

 

71

 

1 and in particular your views on Special Branch. That's

2 correct, isn't it?

3 A. There is a section on that, yes.

4 Q. And in annex C of your first statement, you give us the

5 benefit at section C8 of some comments on that, which I

6 would like to take you through, please. They begin at

7 RNI-620-130 (displayed).

8 As I understand it, the purpose of this evidence, so

9 far as you are concerned and the Inquiry is concerned,

10 is to give the Inquiry the benefit of your view as to

11 what the conditions were -- we have seen your more

12 general comments about policing; this is about

13 Special Branch as they were -- at the time you were

14 conducting this investigation?

15 A. That's correct, yes.

16 Q. Thank you. You begin by making the point in C8.1 that

17 Special Branch was a completely separate department from

18 the CID in the RUC and that its position and the

19 arrangements around it were unique in British policing

20 at that stage?

21 A. That's correct, yes.

22 Q. Thank you. I would like now to move on to pick up your

23 evidence at C8.4, where you, on the next page,

24 RNI-620-131 (displayed), highlight some of the

25 differences. And can I take it that where you move from

 

 

72

 

1 the very general comments into these more detailed

2 remarks, they are based not on experience as at this

3 point, 1999, as a Special Branch officer?

4 A. No, that's correct. When I was working on the

5 Rosemary Nelson murder investigation in 1999, I wouldn't

6 have had the knowledge of this, what was on the other

7 side, if you know what I mean, the side of

8 Special Branch. That came after I was appointed and had

9 to do the reforms for Mr Orde, which required us to look

10 at the systems -- looking back, that's what I saw.

11 Q. Your first appointment within Special Branch was as the

12 Head of Special Branch, effectively, the Head of both

13 Special Branch and CID?

14 A. Well. When I was appointed, yes, in August 2003,

15 Special Branch ended being a stand-alone department and

16 became joined with Crime and all the normal crime

17 departments, things you would see in England and Wales,

18 with a Crime Operations Department. Very similar to

19 the Met that they had at that time, and one ACC was in

20 charge of intelligence gathering and investigations.

21 Q. We will come back to that in a moment. So as I

22 understand it, here you are drawing not just on what you

23 knew from your own experience as a CID officer in the

24 1990s, but also on the experience you had later when you

25 effectively came to run what had been Special Branch?

 

 

73

 

1 A. That's correct, yes.

2 Q. Thank you. Now, so far as this paragraph we have on the

3 screen is concerned, is the simple point this: as it was

4 in 1999, it was simply not appropriate to think of

5 Special Branch in terms of a conventional policing unit?

6 A. No, I think -- sorry, yes, I agree with you. This

7 wasn't helpful to think of it in that way. Basically

8 Special Branch did in Northern Ireland what MI5 did in

9 England and Wales, in relation to Irish terrorism in

10 Northern Ireland. Islamic terrorism in Northern Ireland

11 still remained MI5's responsibility, but Irish terrorist

12 issues in Northern Ireland, Special Branch took the lead

13 in terms of the operations at that time.

14 Q. Yes, it didn't run informants, it ran agents; is that

15 right?

16 A. Exactly the same as MI5 didn't run informants in 1999.

17 They both ran national security agents, was the names

18 they used for them.

19 Q. And it wasn't in the business of gathering intelligence

20 for evidential purposes?

21 A. No, it was for national security purposes.

22 Q. Yes. Now, in the next paragraph, which we also have on

23 the screen, you make the point that this took

24 Special Branch, no doubt on occasion, into the difficult

25 area of criminality. Do you see that there, in terms of

 

 

74

 

1 their agents?

2 A. C8.5?

3 Q. Yes.

4 A. Yes.

5 Q. In other words, you say that the agents were tasked to

6 infiltrate illegal organisations, no doubt principally

7 paramilitary groups, with the ever present risk

8 presumably that the agents might themselves become

9 involved in crime?

10 A. Yes, and to be fair to Special Branch in

11 Northern Ireland, the problems that existed in relation

12 to what's called marginality was throughout the

13 United Kingdom in relation to both crime informants and

14 national security agents.

15 If you doubt my word on that, all you have to do is

16 look at the extensive minutes of the meetings that went

17 together trying to get Her Majesty's Government to put

18 in the relevant legislation in 2000 -- the Investigatory

19 Powers Act -- a long section trying to get them to

20 include a section on how you would authorise what was

21 then a CHIS to be involved in criminality and, bluntly,

22 the Government absolutely refused.

23 It has been left to the guidelines that come out

24 from both the police and from ACPO to try and continue

25 with that. So, yes, this is still a continuing problem

 

 

75

 

1 to a certain extent in terms of marginality.

2 Q. In terms of the culture, if I can put it this way, the

3 culture of Special Branch, as you perceived it, can

4 I suggest that you are highlighting for us a number of

5 points. The first: little paperwork being generated in

6 the course of the work; is that right?

7 A. Yes.

8 Q. No, as you say, generally, but specifically no debriefs

9 on source meetings in South Region, I think is what you

10 are saying, so far as this Inquiry is concerned. Is

11 that correct?

12 A. Yes, my -- certainly the checks that I did in 2003 in

13 changing the systems, it was only Belfast who were using

14 written debriefs and we had to introduce a Province-wide

15 system for debriefs in the new CHIS regulations that we

16 brought in.

17 Q. Thank you. And in that, as in a number of other areas

18 which you deal with in your evidence, as you saw it

19 anyway, the operating factor was above all source

20 protection?

21 A. Yes, it is important to say that. This wasn't in any

22 way a reflection of any laziness or lack of diligence by

23 the Special Branch officers concerned, but -- I can't

24 remember, I think it was over 40 at the last count, the

25 number of informants who have been executed throughout

 

 

76

 

1 the Troubles in Northern Ireland. I'm sure the figure

2 is higher than that now.

3 So consequently, there was a great reluctance from

4 Special Branch to have any unnecessary documentation

5 that would indicate who an informant or a source, an

6 agent, as it was called then, could be. And that was

7 what was behind many of these lack of written records.

8 Q. Thank you. The second point I would like to look at

9 with you specifically is the regional power bases within

10 the organisation, which you begin to talk about at the

11 bottom of the page. You say:

12 "Regions didn't brief everything into Special Branch

13 Headquarters and everything received by Headquarters did

14 not get disseminated to local police commanders or crime

15 investigators."

16 The power resided with the heads of the three

17 regions in Special Branch, did it not?

18 A. Yes. Certainly when I started to do the changes, it was

19 clear that the traditional approach which was based

20 around the three regions, which had good sound reasons

21 at the beginning -- operational reasons to work like

22 that, they had become in essence some of the most

23 powerful parts of the police apparatus in terms of their

24 ability to control and manage decision-making. And not

25 everything that was done in the regions necessarily came

 

 

77

 

1 up to ACPO level and central.

2 And it is important at C8.6, the third line, there

3 was no system of -- what we would have known as gold

4 systems in place to manage key intelligence, whereby the

5 ACC in charge of Crime would chair a meeting whereby the

6 CID officers are brought in with the intelligence

7 people, the ACPO person is in the desk and basically he

8 ensures that there is the maximum dissemination and use

9 of the intelligence. That didn't come in until 2003.

10 In 1999, the decisions of relevance lay totally with

11 the Regional Head of Special Branch.

12 Q. Thank you. Turning over the page to 8.7, again a theme

13 here in this paragraph, which you return to in your

14 second statement, was the point about the career path,

15 whereby a number of Special Branch officers had no CID

16 experience?

17 A. That's correct, yes.

18 Q. And presumably, as far as that was concerned, it meant

19 that insofar as they were working with and alongside CID

20 officers in investigations, they had nothing relevant to

21 draw on?

22 A. They were very experienced and skilled in relation to

23 the technical things that they did. Bluntly, it was --

24 the problem was not always appreciating what types of

25 intelligence CID officers could use and develop, and I

 

 

78

 

1 think -- it is dealt with more in my second statement

2 where I try to give examples of A killing B.

3 What I'm trying to say is because they aren't -- in

4 those days, there were very few CID officers in

5 Special Branch. They didn't always appreciate how CID

6 could protect and use intelligence if it came out to

7 them, and that was one of the key changes that we made

8 in 2003.

9 Q. And presumably the relevance, so far as you are

10 concerned as a CID officer at this time, 1999, was that

11 it was these officers, the Special Branch officers, who

12 determined what should be disseminated by way of

13 intelligence to investigators such as yourself?

14 A. That would be the case to the extent to which you let

15 them, and I would obviously -- you know what's coming --

16 I would draw your attention to policy decision 19 where

17 clearly a good SIO, knowing that Special Branch officers

18 will be deciding what's relevant, to use the vernacular,

19 goes with a shopping list and says, "These are the areas

20 that I need key intelligence on" to give them guidance

21 on he believes to be relevant. That doesn't guarantee

22 that I got everything that I feel I ought to have got,

23 but there was absolute no doubt on behalf of, for

24 example, Special Branch officers that I wanted

25 information on bomb makers or threats and things like

 

 

79

 

1 that because policy decision 19 I listed them out for

2 him.

3 It was the first time I ever did that in the

4 investigation, and it was due to the experiences in

5 previous ones that I felt it was proper to put on the

6 record what exactly I wanted from Special Branch, and it

7 wasn't solely for them to decide relevance.

8 Q. Thank you. We will definitely come back to that

9 specific step that you took, and I appreciate what you

10 are saying about, in a sense, it being for the SIO to

11 make sure that he got, if he could, what he needed.

12 But the point you make here about the key decision

13 on relevance is a general point, and it looks as though

14 in terms of the structure as it was then, those

15 decisions were for Special Branch rather than for the

16 CID?

17 A. That certainly was the default decision, the starting

18 position, yes.

19 Q. And you go on to explain how personal relationships

20 effectively might assist the SIO in this context, and

21 then you mention the Stevens matter and the Ombudsman

22 report. I assume you mean the Ballast Report. Do you?

23 A. That would be one of them. There were several others,

24 but they all touched on the same relevance thing, yes.

25 Q. The concern or point there being that important

 

 

80

 

1 intelligence was simply not shared with the

2 investigating officers?

3 A. That's correct, yes.

4 Q. And can I take it that in 1999 you, and perhaps

5 colleagues in CID you had discussed this matter with,

6 felt that that was a problem you had had experience of

7 and were dealing with in the investigations which you

8 were working on at that point?

9 A. Yes, I took a different approach in the Rosemary Nelson

10 investigation to the approach I might have had in

11 previous ones, to try and at least ensure that as much

12 as possible I got what was relevant to my investigation.

13 Q. Thank you very much. Now, so far as this part of your

14 evidence is concerned, can I just take you finally to

15 C8.9. It is at the bottom of the same page, 132.

16 You have dealt with surveillance in 8.8, and there

17 you deal with the question of validation because, as you

18 tell us here -- and you deal with it in some detail in

19 your other statement -- intelligence in general came

20 into investigations in sanitised form; is that correct?

21 A. That's correct, yes.

22 Q. And most, if not all of it, was given by Special Branch

23 the same grade, as you put it there, although it has

24 been redacted, as you see, on the screen?

25 A. Pardon me for smiling, it has been mentioned in so many

 

 

81

 

1 ombudsman's reports, I think every dog in

2 Northern Ireland knows about that grading. But yes,

3 indeed, that grading in my experience turned up on every

4 document that I got from Special Branch.

5 Q. Yes. And so in order to address the difficulties that

6 this presented in terms of validating the intelligence

7 that you received in these circumstances, you have

8 already mentioned in your statement the personal

9 contacts. I think in your other statement -- I think it

10 is paragraph 14 -- you refer to them as corridor

11 conversations. Is that the term?

12 A. Yes, sometimes clearly if you had a relationship, and

13 certainly I had a relationship with a number of

14 detectives in Special Branch, who were clearly trying to

15 help within the systems that restricted them. And I

16 don't think they did anything inappropriate or wrong,

17 but you would ask them, "Look, is there any point for me

18 putting in a further series of questions about that bit

19 of intelligence you have given me?" And they would

20 basically, without breaking any rules, tell you (redacted)

21 (redacted).

22 So there was little point going back. (Redacted)

23 (redacted)

24 could give you further debriefing to. So they would be

25 helpful that way and say, "Not that bit. That's the

 

 

82

 

1 only thing we have on it. We can't develop that at

2 all."

3 So those were the sort of things at times. And

4 officers in Special Branch, where they could, would try

5 to help you that way. But prior to certainly 1999 --

6 1999 would have been the first time I officially wrote

7 in to try and have it on the record that those sort of

8 things would occur.

9 Q. As you say here in the paragraph we still have on the

10 screen, in relation to asking for further information,

11 such a system did not exist in 1999?

12 A. Yes, that's correct.

13 Q. So you were dependent on these personal contacts, these

14 less formal exchanges?

15 A. That's right, yes.

16 Q. Can I just ask you what the impact of that was? Again,

17 I'm being quite general at the moment. In a case where

18 Special Branch officers expressed confidence in

19 intelligence, in such a conversation, in other words

20 where they were prepared, if I can put it this way, to

21 vouch for it, how would you then go about the question

22 of validation?

23 A. Well, certainly -- can I talk from the Nelson inquiry?

24 Q. Please do.

25 A. I think for me it was important to, like you showed

 

 

83

 

1 earlier, pose as many questions as you could to try and

2 develop the intelligence that's in front of you.

3 Where we had situations where it came from crime

4 sources, I was able to use my position as a senior

5 detective to put my detectives in to talk direct to

6 a crime source. So consequently, people who had a very

7 in-depth knowledge of the MIT were able to not just ask

8 a question but to do follow-up questions. Little things

9 which are important, if you think about it: the

10 application of the R v Turnbull rules, which are

11 relevant to street identification. There is no point

12 somebody saying to me, "I saw Jimmy Jones", unless you

13 go and task the informant and say, "Well, how do you

14 know Mr Jones? How long have you known Mr Jones? How

15 many hundred yards from him were you when you saw him?

16 What was he wearing? What car did he get into?" All

17 these are questions that any detective is dying to get

18 his hands on, which I would say a handler in

19 Special Branch might not in those days have thought as

20 obvious.

21 So consequently asking though questions was one of

22 the first ways that I went about it in relation to the

23 intelligence that came in.

24 Then you play the triangulation thing, as I said

25 earlier. Because then not only have you got this

 

 

84

 

1 intelligence coming in from South Region, Belfast

2 independently has supplied you intelligence, CID has,

3 you have anonymous messages coming in and you are

4 starting to look and go across, and then you see how

5 that fits in with your forensic material and all the

6 other things to corroborate it, which meant that some of

7 the questions going back got better because

8 Special Branch may have wondered at the time, "Where are

9 these coming from?" And they didn't always

10 appreciate it.

11 That was one of the big rubbing points with other

12 organisations at times, was the fact that we weren't

13 just accepting -- people at times would say, "That

14 intelligence is marked (redacted)" because they had got this

15 series of questions coming back in about it. But that

16 was the challenge that was going on. Sorry, that was

17 the challenge -- I know what I've done there, my

18 apologies. It was marked a certain grade and that was

19 the challenge that was coming from the floor, from the

20 investigation.

21 Q. Thank you.

22 Can I just look at another situation. Imagine where

23 there are two pieces of conflicting intelligence. Given

24 the conditions that you have described to us so vividly

25 in this part of your statement, including the fact that

 

 

85

 

1 it is likely that both pieces were graded at the same

2 level, and where you are dealing with sanitation,

3 et cetera, et cetera -- sanitisation, I mean. Certainly

4 I hope you weren't dealing with sanitation on top of all

5 your other responsibilities. How did you go about

6 working out, as it were, which was the better, sounder

7 piece of intelligence?

8 A. That was very difficult. I can honestly say that. Even

9 today that happens and it is well meaning sources --

10 I mean, let's be blunt, you get 20 witnesses at the

11 scene. In my experience as a detective, you have

12 probably got 14 different stories coming in because

13 everybody sees things from their viewpoint. So you will

14 get conflict between sources.

15 In 1999, you couldn't do what can happen nowadays

16 whereby we have a number of independent detectives --

17 the police has a number of independent detectives

18 working within the intelligence community who don't take

19 on the role of SIO, who can talk to various sources and

20 sort out such conflicts. But that didn't exist in 1999.

21 So if they had problems -- I remember raising this with

22 different Special Branch officers and them saying,

23 "Sorry, that's how the source reports it".

24 And, of course, the other point to remember is we

25 just saw it as a source and a number. Quite properly,

 

 

86

 

1 because it is national security intelligence, I did not

2 know if that was a human, a technical or a telephone

3 source. So, you know, it might be a situation -- if it

4 was a conflict (redacted)

5 (redacted), that's one

6 you are never going to sort out no matter what system

7 you have in place because you can't go back and revisit

8 the live conversation and ask somebody at the other end,

9 "What exactly did you mean by this?" The way you could

10 talk to an informant.

11 So not everything -- to be realistic, not everything

12 was possible for Special Branch to actually sort out all

13 the conflicts, no matter, as a CID officer, I would have

14 liked that to happen.

15 Q. Can I look at a third situation by reference to this

16 second statement, and that's in paragraph 14 at

17 RNI-811-150 in the last sentence (displayed). This is

18 the paragraph where you are talking about the corridor

19 conversations, and you say at the end:

20 "A corridor conversation might conclude that no

21 further clarification could be given."

22 In other words, if I can put it this way, the big

23 hand came up. So what were to do as an SIO in these

24 circumstances?

25 A. I think the word -- I'm not trying to be semantic about

 

 

87

 

1 it, the word is important, it is not "would be given",

2 it is "could be given". In other words, it couldn't

3 happen.

4 I think what I was referring to there was where

5 somebody was listening (redacted)

6 (redacted) to a conversation; in other words, that's what

7 the person said (redacted), is the answer. And in

8 fairness to Special Branch, we, through Operation

9 George, ran a whole series of similar things and you

10 then appreciate the problems Special Branch faced

11 because we had text in front of us and we were looking

12 at this and saying, "What does that mean?" and trying to

13 corroborate and develop it.

14 So in many ways we understood at times the problems

15 that were facing Special Branch because it wasn't an

16 informant reporting in. So what I'm saying there is

17 there is a corridor conversation -- what everybody was

18 telling you was, "Look, this is (redacted), this is what

19 the person said. I can't develop that any more." It

20 wasn't that they were refusing to give us something,

21 they were saying, "We can't do anything technically to

22 help you".

23 Q. In other words, you had to find another approach?

24 A. That was as far as -- you see, intelligence paints

25 a picture, you could say. That's as far as that

 

 

88

 

1 conversation was going and, for example, that's why

2 Colin Port worked hard to get people like myself and

3 other ones in (redacted),

4 (redacted).

5 That was a very useful point because you had

6 knowledge of the investigation, you could see what

7 people were saying and to a certain extent interpret

8 better than, say, for example, what a Special Branch

9 officer who didn't know the lines of enquiry could.

10 But I have to say even with me going in and other

11 officers who were cleared to do that, there still were

12 cases that I came back and we would report to M540 or

13 other people and say, "I saw this (redacted)" and they would

14 ask me questions and I would say, "I can't go any

15 further". You know, that's what the person said and I'm

16 actually not sure what the second half of this sentence

17 means.

18 Q. Just trying to draw some general conclusions about this

19 evidence you have given us, if we could go to the next

20 two paragraphs on this page we have on the screen --

21 that's 15 and 16 -- there you talk about the procedures

22 that Special Branch had developed and the difficulties

23 they caused. Do you see in the second sentence:

24 "Four SIO ..."

25 And obviously you concede in the last sentence of 15

 

 

89

 

1 that the need to protect sources was a legitimate

2 consideration. But as I understand it, what you then go

3 on to do in the next paragraph is to raise other

4 important balancing factors; in other words, the need to

5 provide justice to the relatives of the victim, in this

6 case the victim of murder.

7 Am I right in thinking that in your view, as things

8 were in 1999, the balance was not correct?

9 A. Yes, certainly in my view in 1999, I thought there could

10 have been more creative ways of ensuring that relevant

11 intelligence was disseminated to the SIO. I don't think

12 it would be fair to say I was on my own in that regard.

13 I do accept that I maybe was the person who was known to

14 be making some of these suggestions, but other senior

15 detectives in my time were the same, and consequently --

16 I mean, when I saw, for example, the agreement that

17 Sir David Phillips had with the Chief Constable, which

18 he had agreed, which wasn't implemented unfortunately

19 but which was that should they decide not to give me

20 intelligence, he would have a right of appeal to the

21 Chief Constable, that in itself was a -- never existed

22 before where Crime could have a spokesperson to go to

23 a Chief Constable and say, "This SIO has to get it, now

24 let's sit down and see what imaginative way we can put

25 this intelligence into a debrief". It doesn't involve

 

 

90

 

1 the loss of the source, whatever the source is.

2 So consequently, that's why I was saying at the last

3 point of that sentence in 16, that ultimately for

4 a police service what was the point of gathering

5 intelligence if it couldn't be used in any sort of

6 operational context.

7 Q. Can I just take a sidestep, given that you have raised

8 this issue of the system involving Sir David Phillips.

9 Again, so we have got the right document in front of us,

10 it is RNI-837-006 (displayed). We have heard some

11 evidence about this. This is an extract from the log

12 again. We are using the log in this case because you

13 weren't actually present at this meeting, were you?

14 A. That's correct.

15 Q. And it sets up a system in order to give effect to the

16 Kent officer's very strong view that the SIO should have

17 access to the unsanitised version of all intelligence

18 relevant to the investigation. That was their starting

19 point coming from England, wasn't it?

20 A. That's correct, yes.

21 Q. And we can see that recorded in here with DCI Gutsell

22 being, as it were, the main recipient, he was

23 a Special Branch officer from Kent who had DV status?

24 A. That's correct, yes.

25 Q. Thank you. And it says there:

 

 

91

 

1 "It was also agreed that such intelligence should be

2 made available to the SIO".

3 And as you point out, the appeal system, if I can

4 put it that way, involved Sir David taking the matter up

5 with Sir Ronnie Flanagan?

6 A. That's correct, yes.

7 Q. To be clear, therefore, that system did not get put into

8 effect, as far as you are aware?

9 A. Certainly Mr Humphreys never said it to me, nor did

10 I see any record in the Cornwall. And in my experience,

11 it hadn't happened in the first three weeks.

12 Q. That takes us neatly to paragraph 25 of your statement,

13 RNI-811-154 (displayed), where you say at the top of the

14 page:

15 "In conclusion, if Special Branch were in possession

16 of raw intelligence relevant to a murder, I believed in

17 1999 the starting position should be that it would be

18 passed over to the SIO".

19 Do you see that?

20 A. Sorry, that's paragraph 25?

21 Q. Yes.

22 A. That's correct, yes.

23 Q. That was your belief and no doubt your wish, but it

24 wasn't in fact the system that was then in place,

25 was it?

 

 

92

 

1 A. No, it wasn't, and I know I shouldn't go back to it, but

2 to actually ensure that it was easier for Special Branch

3 to comply with what I was looking for, that was the

4 reason why I gave them a shopping list, to give a guide

5 to them, because I didn't want -- we thought it was

6 relevant. It is all right saying -- it is that word

7 "relevant" that's the key point:

8 "In conclusion, if Special Branch were in possession

9 of core intelligence relevant to a murder ..."

10 It is unfair on Special Branch to say you ought to

11 give me something that's relevant. You have to give

12 them a guide, and I did in this case try to give them

13 some very tight guidelines as to what I wanted.

14 In Northern Ireland, intelligence had been gathered

15 for a long time. So with some suspects, there were

16 basically wheelbarrows of intelligence because they had

17 been involved for 20 years in the Troubles. If you are

18 involved in a murder in 1998, you may not particularly

19 want to see what they were doing in the Ulster workers'

20 strike because you only have a certain amount of time to

21 read the stuff. It is important to give guides. So I

22 say, "relevant as guided by the SIO" might be helpful in

23 that one.

24 Q. The key there, which becomes a theme in the rest of this

25 statement you have prepared with Eversheds, is that in

 

 

93

 

1 your view, as I understand it, the right person to be

2 the judge of relevance was not in fact Special Branch

3 but the SIO?

4 A. Yes.

5 Q. He knew what was relevant to his investigation?

6 A. Yes, so long as he has done that first thing of giving

7 them some guidance. Clearly, yes -- once you've given

8 them the nod to the four or five areas that you think

9 intelligence is essential for, clearly you would be

10 expected to be allowed to make a judgment after that,

11 whether you thought the particular things within that

12 were relevant.

13 It clearly has to be the SIO who has access to the

14 HOLMES system and the MIT enquiries to be able to make

15 that decision, you are absolutely right.

16 Q. So far as your position and the views that you held at

17 the time you began your work in this

18 investigation, March 1999, are concerned, you set out

19 for us your earlier experiences from 1994, when, as you

20 said, you started to work as an SIO, in paragraph 19,

21 RNI-811-151 (displayed), and there you encapsulate the

22 point by saying:

23 "There were times when I couldn't understand why

24 intelligence that I was expecting to see was not shared

25 with me by Special Branch ..."

 

 

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1 You go on in this part, again, to mention the

2 various Ombudsman's investigation and the Stevens case.

3 So one can take it, can one, that the views you held

4 about Special Branch, the attitude which informed your

5 approach to this particular case in your dealings with

6 them, was based on those experiences that you had had

7 when dealing with Special Branch in the mid 1990s?

8 A. That's correct, yes.

9 Q. Thank you. Now, I would like to then, just so that you

10 have got the context of these remarks clear, take you

11 through to the next page, paragraph 20 and 21, where you

12 refer in the last sentence of 20, first of all, to

13 a specific example of what you had talked about in

14 rather more general terms, namely evidence being -- or

15 intelligence, I should have said being withheld, where

16 SIOs were investigating the murder of police officers,

17 were those matters within your own knowledge and

18 experience?

19 A. Yes, in terms of when I was an ACC, I worked with

20 Hugh Orde in setting up the Historical Enquiries Team

21 and we also had a number of older cases that we looked

22 at and reopened, and there were a number of cases in

23 that where unfortunately what happened -- as described

24 in the last sentence there -- was a fact. And the point

25 why I put that in this statement was to try and show

 

 

95

 

1 this was a systemic approach by Special Branch officers

2 and in no way driven by any sectarian or inappropriate

3 things.

4 Every case where there was a need to protect source

5 identities, they did go -- put that as a top priority,

6 even cases involving the death of their colleagues.

7 Q. So far as the Inquiry is concerned, the next stage of

8 this, if I can put it that way, is what you say in these

9 and following paragraphs of your statement about the

10 impact of your experience with Special Branch and

11 specifically in relation to the murder investigation --

12 Rosemary Nelson's murder investigation, and the impact

13 of that on your subsequent changes, the reforms that you

14 brought in in 2003/2004.

15 Now, one of the passages in which you talk about

16 this is 24, RNI-811-153 (displayed). And as I

17 understand it, where you set out -- which you do in, I

18 think, appendix B to your statement -- the significant

19 changes and reforms that you drove through at this time,

20 those changes were at least to some extent based on the

21 experiences that you yourself had had working on the

22 Rosemary Nelson murder investigation in 1999; is that

23 correct?

24 A. Some of them were, yes, definitely.

25 Q. Yes. What I would like to do with you next, please,

 

 

96

 

1 before we look at those reforms, is to consider the

2 whole question of your dealings with Special Branch

3 during the investigation and your relationship with the

4 relevant Special Branch officers and see, as it were,

5 what it was about those experiences that informed the

6 significant reforms that you drove through in 2003/2004.

7 Now, can I just, therefore, take some of the general

8 points you have been making about Special Branch and the

9 way it operated and see to what extent in your view they

10 applied in this particular case, the Rosemary Nelson

11 case.

12 First, the suggestion you made that Special Branch

13 officers who lacked investigative experience were, as it

14 were, at a disadvantage in expressing views on relevance

15 to an SIO of an investigation. Do you think that

16 applied in this case?

17 A. There certainly was a disadvantage sometimes in

18 understanding why we had asked for certain things and

19 why we wanted it, and to some extent explains why they

20 didn't give it us.

21 Q. It may be an explanation?

22 A. It may be an explanation.

23 Q. Yes. Looking at another part of your statement,

24 paragraph 19, in relation to South Division, that was

25 the division with which you were concerned -- and we

 

 

97

 

1 have that at the bottom of the page -- can I take it

2 that your previous experience of South Division made you

3 take the view that they were even less forthcoming with

4 intelligence provision to investigators than, for

5 example, Belfast Region?

6 A. That was my experience. I had worked in Belfast and

7 South Region. Belfast had its problems too, as Ballast

8 shows.

9 Q. Yes.

10 A. But certainly in my experience, I tended to get not just

11 more in quantity, but I would say sometimes the

12 intelligence texts were longer, in my experience,

13 from -- you would have got more in Belfast that way as

14 well than you would have in South Region.

15 But this is purely based on one officer's experience

16 and there may be other detectives here who found equally

17 as much stuff coming from South Region as from Belfast,

18 but that was purely just my experience, that's all.

19 Q. Absolutely right, it was one officer's experience, but

20 so far as the Inquiry is concerned, it was the officer

21 that was the SIO of the Rosemary Nelson murder

22 investigation.

23 Can we look on to paragraph 28, please, where you

24 take this point forward. That's at RNI-811-154 and over

25 the page at RNI-811-155 (displayed). Here you talk

 

 

98

 

1 about your South Region experience between 1994 and

2 1998, and then you say:

3 "Consequently, when I was appointed as SIO to the

4 Rosemary Nelson murder investigation, I felt it

5 necessary from the beginning to make specific written

6 requests that clearly set out my intelligence

7 priorities."

8 The point you made earlier. So one can see, as it

9 were, the origin of the approach that you took in this

10 investigation, in those experiences in earlier years.

11 Is that a fair way of putting it?

12 A. That's a fair comment, yes.

13 Q. Were you consciously setting out to do this in a new

14 way?

15 A. That sounds very grand and wouldn't have been my

16 approach.

17 My immediate concern was ensuring I could bring to

18 justice the people who killed Mrs Nelson. Bearing in

19 mind that this clearly was likely, strongly likely, to

20 be a terrorist-related offence, I wasn't underestimating

21 the importance that intelligence could play. I wasn't

22 overestimating it either, but I wasn't underestimating

23 it and I wanted to make sure that if there was problems

24 in relation to intelligence not coming, it wasn't --

25 that wasn't anything to do with us and the MIT and the

 

 

99

 

1 senior management team.

2 Now, clearly giving Special Branch as strong a guide

3 as possible as to what we needed, so it wasn't like in

4 any way Samuel Kinkaid was setting out in any way to

5 reform Special Branch and CID. That came much later

6 with Sir Hugh Orde's appointment and after the Stevens

7 Report came out and when I was an ACPO officer. I was

8 a line detective investigating a murder in 1999 and

9 I want to make sure that in terms of my dealings with

10 Special Branch that I got everything that was relevant

11 to the investigation.

12 Q. You weren't in any sense on a crusade?

13 A. No. I appreciate having seen other documents and --

14 that witnesses that you have had here before, that some

15 people interpreted that, but -- and also of Colin Port,

16 the same. But there was absolutely no doubt that you

17 couldn't ask these questions and challenge to the extent

18 that we did without having rubbing points with other

19 institutions who were used perhaps to giving out

20 material and sometimes people not coming back, and

21 that's what we did in this case.

22 Q. And you don't think in your dealings with them that you

23 were disposed to expect the worst?

24 A. Well, I believe the statement has been released.

25 Sometimes you are better hearing what your peer group

 

 

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1 says. I think Arthur Provoost's comments about me was

2 healthy scepticism, I think is the word he uses, which I

3 think as a third party looking at me from the side,

4 would probably be pretty valid. And I think as time

5 went on, him and Mr Port got as much healthy scepticism

6 perhaps as I had initially.

7 But that would be the way we described it, but we

8 also didn't downplay the significance of the branch

9 officers we were working with and the fact that they had

10 major contributions to make. And also, I have to be

11 quite honest, some of this intelligence wasn't obtained

12 by people sitting in armchairs; it was obtained for us

13 by people putting their lives at risk as undercover

14 officers and things like that. And that has to be

15 recorded.

16 So I'm not downplaying in anything the significance

17 of how the material was obtained.

18 Q. Thank you. Can I just go through with you one or two

19 other points, some or most of which are in this area of

20 intelligence, which, as far as one can tell from your

21 evidence, were if not entirely new, then relatively new

22 in Northern Ireland at the time.

23 The first is using intelligence for evidential

24 purposes. That became an aspect of the investigation

25 that took it into new territory, so far as

 

 

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1 Northern Ireland was concerned; isn't that right?

2 A. Yes. Prior to 1999 the only situations you would have

3 used that type of technical gathering of evidence was

4 where we have had extortion demands made of businessmen,

5 we have a very basic system for doing evidential

6 recording of (redacted)

7 (redacted). So that was restricted to that, and

8 sometimes, the odd time in extortion cases, having

9 witnesses or police officers wired up to record

10 conversations. But nothing like, for example, what the

11 Metropolitan Police did in the Stephen Lawrence

12 investigation some years before. That sort of approach

13 was all very new to us.

14 Q. You mentioned already the establishment of a secret

15 policy book. That was, I think you tell us in your

16 evidence, new as far Northern Ireland was concerned; is

17 that right?

18 A. Yes, and that sort of process system -- the credit goes

19 to the Kent officers who sat down and showed us how to

20 sort out, how to handle that sensitive material coming

21 into the HOLMES system.

22 Q. And, again, I think you have referred to this in your

23 evidence already, you envisaged -- and when I say "you"

24 in this, obviously I'm including Mr Port in due course

25 and Mr Provoost -- but the MIT would itself undertake

 

 

102

 

1 surveillance on suspects if that proved necessary and

2 appropriate and, again, that took you into new territory

3 so far as a Northern Ireland investigation was

4 concerned. Isn't that right?

5 A. Yes, we didn't have our own surveillance team, but

6 certainly subcontracting surveillance tasks to existing

7 non-evidential teams was one of the things we tried to

8 look at, yes.

9 Q. You have mentioned setting out your requirements of

10 Special Branch in writing. You touched on that. In

11 your statement in paragraph 17 there is a comment you

12 make there at the top of the page, RNI-811-151

13 (displayed). You say:

14 "My view was that intelligence could have been

15 shared creatively ..."

16 This is in the context of making comments about

17 Special Branch dissemination. Was that something you

18 sought to achieve in the course of this investigation,

19 the sharing of intelligence in that way?

20 A. Yes, I mean, in the sense of -- I don't think there'd

21 ever been a situation before that senior detectives had

22 gone to see ACC Special Branch and tried to have

23 discussions in relation to the intelligence that existed

24 and see how that could be passed down the appeal system.

25 The questions that Mr Port asked in relation to

 

 

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1 things that couldn't be shared for us because of --

2 until we got developed vetted. And the very fact -- I

3 think it is a creative point, the very fact of insisting

4 that the senior management team for the first time ever

5 all became developed vetted, which, you know, bluntly,

6 is now practice throughout the PSNI in terms of SIOs,

7 but that was unheard of then because that was the get

8 out clause: "We can't give it to him. Not because it

9 isn't relevant, but because he's not cleared to get it."

10 Q. Just so everybody else is following you, that was one of

11 the points that was made by Special Branch: that there

12 weren't sufficient developed vetted officers to allow

13 for dissemination in the way that you wanted?

14 A. There were none in CID at all in 1999, which was a bit

15 of an anachronism bearing in mind that the RUC was the

16 greatest producer of national security intelligence in

17 the United Kingdom. And it did seem -- it was a bit

18 strange that none of its CID officers could technically

19 regularly see secret material because they hadn't been

20 developed vetted.

21 Consequently -- it was something I had never thought

22 of that in terms of -- because the world we live in in

23 1999 as CID officers, that was accepted, and it was

24 amazing that the first thing Colin Port did within days

25 of arriving was saying, "I want my senior management

 

 

104

 

1 team, this SIO, developed vetted because he can't make

2 decisions unless he sees secret material".

3 That was a very simple step but quite a creative

4 step to actually get past the first hurdle. The first

5 hurdle is, is he cleared to see it? Secondly, does he

6 need to see it? You never get to the second question

7 without getting past the first one.

8 Q. In terms of new ideas, new approaches, so far as they

9 related to intelligence and the relationship with

10 Special Branch, presumably you must have recognised at

11 the outset, when you were contemplating approaching

12 matters in this way, that that approach might lead to

13 tension because it would be very new for the

14 Special Branch officers as well?

15 A. Yes. I mean, I appreciate that for some of them they

16 wouldn't have had these requests made of them.

17 Q. And you say, for example, in paragraph 27, in relation

18 to the Regional Head you:

19 "... doubt that the likes of the Regional Head,

20 B629, had ever experienced the type of requests we

21 made"?

22 A. Certainly the written requests of that nature, yes.

23 Q. Can I just ask you this question: Do you think that

24 your views of Special Branch, as you have told us they

25 were in 1999, were well-known to those Special Branch

 

 

105

 

1 officers at the time of your appointment to the

2 investigation?

3 A. Well, some of them -- I raised a number of verbal issues

4 with previous investigations that my officers were

5 responsible for in the six months prior to Mrs Nelson.

6 So they would have been aware --

7 THE CHAIRMAN: Am I right in saying you had only been in

8 South Region about six months by the time of

9 Rosemary Nelson's murder?

10 A. That's correct, yes, but there were at least two

11 incidents that happened in that time where perhaps I

12 had -- in both cases I was supervising the SIO,

13 detective inspector and detective chief inspector level,

14 and there was issues raised about the intelligence that

15 became available. And I spoke to senior branch officers

16 and very much asked them the sort of questions that

17 I probably would have asked in Belfast and got -- that's

18 where I got the feeling from that some of these

19 questions they hadn't been asked before, in fairness to

20 them.

21 MR PHILLIPS: And in that sense were not welcome to them?

22 A. I think they were uncomfortable with them and they maybe

23 hadn't had to process those before. There was never any

24 personal animosity shown to me. If they said further

25 and some other place that they felt these were

 

 

106

 

1 unwelcome. Maybe they did, but certainly not to my face

2 and certainly in relation to the Rosemary Nelson

3 investigation, I mean, I wasn't aware of them ever

4 saying to me, "Your questions are unwelcome or we are --

5 we are not going to cooperate with you". I know I

6 didn't get everything I asked for, but that's

7 a different matter.

8 Q. Did your previous experiences in South Region include

9 dealing with the senior officers who came to feature in

10 the Rosemary Nelson investigation?

11 A. In fairness, no, because I really didn't have anything

12 to do with Lurgan. I'm talking about -- I haven't

13 got -- I'm talking about, for example -- the

14 significance would be -- I would say the liaison officer

15 for the investigation, if that helps, the Special Branch

16 liaison officer.

17 Q. Yes. B567?

18 A. B567. Really the first time I worked with him, as

19 I recall, was on the Rosemary Nelson investigation

20 because they were attached to Lurgan/Portadown, which

21 wasn't my normal area of responsibility, as I said at

22 the beginning.

23 Q. And you say in your statement, paragraph 29, you had not

24 worked directly with the Regional Head either at the

25 time you began your work on the investigation. Is that

 

 

107

 

1 correct?

2 A. We would have met at meetings where I was standing in

3 for my boss, the head of CID, but no, not in-depth in

4 relation to a lot of enquiries, no.

5 MR PHILLIPS: Thank you.

6 Sir, would that be a convenient moment?

7 THE CHAIRMAN: We have only sort of had half a day's oral

8 hearing today and I'm thinking of the stenographer. We

9 are going to have a pretty long day tomorrow.

10 MR PHILLIPS: We are going to have a very long day tomorrow

11 on any view.

12 THE CHAIRMAN: Would it be better, subject to the

13 stenographer's fingers, if we had a slightly longer day

14 today in the hope it could be a bit shorter tomorrow.

15 We will have a quarter of an hour break now.

16 Should we say we will resume at ten past five and

17 hopefully go on to 6.

18 (4.55 pm)

19 (Short break)

20 (5.10 pm)

21 THE CHAIRMAN: Yes, Mr Phillips?

22 MR PHILLIPS: We were talking earlier about the lack of CID

23 experience that Special Branch officers had in your

24 view, or a lot of them anyway.

25 Was the complaint ever made the other way round

 

 

108

 

1 during the investigation? Did you find yourself being

2 told by Special Branch officers that the problem was you

3 didn't understand their work because you and your

4 colleagues had no Special Branch experience?

5 A. I'm trying to recall if that ever arose. I certainly

6 can recall conversations with Special Branch after we

7 started to produce Op George product, where I said in

8 fairness I understand some of the difficulties you had,

9 where we tried to understand what exactly certain texts

10 were when we were getting transcripts from our own

11 recording devices, and also, for example, where there is

12 a number of pieces of intelligence -- a good example --

13 that was shown to me by Eversheds, asked me did I ever

14 see it, to which the reply was, "Well, actually we

15 produced it because it came off us", which showed how

16 good the system was, that the MIT itself was going out

17 of its way to try and protect its sources as well within

18 the guidelines.

19 So, I mean, to be fair, clearly carrying out the

20 operations that we did did make me understand that you

21 had -- it is not simply a matter of saying give

22 everything relevant to the SIO; there has to be systems

23 in place, like the sort of thing that Kent showed us to

24 do, to ensure that things are done -- relevant stuff is

25 it passed and sources are protected. So clearly

 

 

109

 

1 I understood some of the problems that the branch had

2 and had discussions with them arising from our own

3 intelligence gathering operations.

4 Q. Just getting back to my question, can you remember an

5 example where they said to you the problem is that the

6 investigation team doesn't have the necessary

7 Special Branch experience within it?

8 A. I can't recall those words said to me personally.

9 Q. No.

10 A. In those terms, no.

11 Q. Now, getting back to the more general questions we were

12 discussing just before the adjournment, and the new

13 approach, if I can put it that way, the new things you

14 were doing in this investigation, did you at any point

15 early on, sit down with the Special Branch officers and

16 explain to them the approach you were planning to take

17 in the investigation?

18 A. Certainly -- the notes on D95 are of a long meeting

19 Mr Gutsell and I had with Special Branch officers at

20 regional level and two ACCs, and the really important

21 note to look at, I think, is 8 April, which refers to

22 the meeting that Colin Port and I had where we both went

23 to ACC Crimes office and met with ACC

24 Crime/ACC Special Branch, Regional Heads, Heads of

25 Surveillance and there we raised a number of crucial

 

 

110

 

1 issues about access to source identities. And the very

2 issue we raised, in redacted form, of what exactly the

3 gradings meant and why couldn't we get better gradings,

4 different weighted gradings, I think that was

5 significant enough to me.

6 We planned going to that meeting and what we were

7 going to ask for. There is a secret policy book entry

8 in advance of it and it was an attempt to, again, sort

9 of develop what had happened on (redacted) March, at the first

10 meeting.

11 Q. But that was very shortly after Mr Port's arrival,

12 wasn't it?

13 A. Yes, I informed him what I had been trying to do for the

14 first three weeks, and I think the statement that you --

15 a piece of my statement which you read earlier where you

16 said what I thought the significance of Colin Port

17 coming was, one of the four bullet points was the big

18 impetus he gave me in relation to dealing with

19 Special Branch and getting key material back. And that

20 was clear from the second day after he came when he came

21 with me to that meeting. And clearly, it is a fact that

22 he had moved from an advisory to a -- being the

23 operational head role.

24 I got the feeling that my request and the things

25 that I was looking for were his requests now and very

 

 

111

 

1 much people were listening.

2 Q. So that helped your cause in relation to getting what

3 you wanted out of Special Branch, you felt?

4 A. Well, it was ours at that stage, then. You know, it is

5 not personalised. Clearly this is something that

6 Mr Port was used to in his role he had played, I think,

7 in the Serious Crime Squad in England, which he was

8 doing, I think, before he went into the Norfolk

9 Constabulary. So clearly he -- and Greater Manchester

10 when he was there as well. Clearly these were things

11 that he thought were right and proper, and if you look

12 at the long handover meeting where there were

13 discussions between Colin Port, David Phillips and

14 myself, clearly these things were being talked about in

15 detail as to how do we advance our knowledge of what

16 these intelligence sheets are.

17 Q. Well, in fact, we saw -- and, again, I'm not going to

18 show you the document, but we saw that that was a theme

19 of Sir David's in his sign-off meeting with the

20 Chief Constable, Sir Ronnie Flanagan. He stressed then

21 the need for the SIO to have access to the full

22 intelligence relevant to the murder. So that was

23 obviously a theme in the very early days of Mr Port's

24 tenure. Is that right?

25 A. Yes, consistently. Not just in the early days, in all

 

 

112

 

1 of the time I worked with him I don't think there was

2 a sheet of paper between us in terms of our approach in

3 relation to what we were looking for and what we

4 expected.

5 Q. Just to help people catch up with some of the things you

6 have been talking about, can I show you the note I think

7 you are referring to of the meeting -- or the note

8 preparatory to the meeting on the 8th. This is on

9 7 April in the secret policy file. It is at RNI-620-163

10 (displayed). We might use this to introduce the secret

11 policy file to everybody here. The decisions each have

12 a number, don't they? We can see it on the right-hand

13 side?

14 A. That's correct, yes.

15 Q. The date and the time obviously, and here on 7 April the

16 decision maker is Mr Port himself?

17 A. That's correct, yes.

18 Q. And although it is redacted, we can see that you were

19 planning what to state as your requirements -- that's

20 the word used in the first line -- at the meeting with

21 ACC Crime and ACC Special Branch the next day. And

22 looking at the redacted passages:

23 "Access to the product on the main suspects; access

24 to the logs relating to surveillance operations on the

25 key suspects; the determined suitable targets for

 

 

113

 

1 applications; information on the grading of

2 intelligence."

3 That's just what you have mentioned. Then some

4 further information and the reasons given to ensure that

5 all available intelligence is available.

6 So far as that's concerned, going back to the

7 question I originally asked you, I take it what you are

8 saying is that these meetings and the way you went about

9 your dealings with Special Branch made it clear to them

10 what approach it was that you were taking and intending

11 to take in the investigation?

12 A. Yes, that was my opinion, yes.

13 Q. Thank you. In his evidence to the Inquiry, your deputy,

14 M540, says that he thought your requests for information

15 were more robust than usual. He goes on to say:

16 "Mr Kinkaid had his own particular way of doing

17 things."

18 Are those fair comments?

19 A. This may be a matter of style, a colleague expressing

20 them -- I have great confidence in the judgment of M540,

21 if that's the way he sees it. He might have been

22 a softer speaker than myself in terms of his approach.

23 My view, certainly, was that previous attempts to

24 obtain these terms in previous investigations had

25 basically been stonewalled and they were often verbal

 

 

114

 

1 applications or verbal requests. So, yes, I suppose it

2 would have been new for him to have seen so many of

3 these going in writing into the system, and to that

4 extent they certainly -- I don't want to give the

5 impression that "robust" means -- nobody was shouting,

6 there was no personality issues involved in this, but

7 clearly that sort of document there presented do ACCs in

8 Headquarters on top of the D95 document that you showed,

9 certainly shows a robust approach to making a request.

10 That would be fair comment that way.

11 Q. Wasn't there a danger that that robust approach would

12 get an equally robust reaction?

13 A. I'm not sure. In terms of -- possibly you could -- it

14 was understandable why they asked -- why we were asking

15 these detailed questions because they hadn't seen that

16 sort of request before. But you ask the questions

17 because they are the right questions to ask and you

18 don't ask questions, you know, on the basis that

19 somebody might feel slightly offended or somehow or

20 other their management system be undermined because they

21 have said something and you have said are you sure or

22 can you give us more information. Those were the right

23 questions to ask, and we certainly tried, Colin Port and

24 I, to ask them in a way that didn't make people feel

25 that they were being offended. But that wasn't our

 

 

115

 

1 intention.

2 Q. To what extent was your approach influenced, once he had

3 arrived and taken up his position, by paragraph 7 of

4 Mr Port's terms of reference?

5 A. Could you put that up?

6 Q. Yes, RNI-831-083 (displayed) is where it starts and the

7 relevant paragraph is on RNI-831-084 (displayed). Do

8 you see paragraph 7?

9 A. Yes, I do. I'm not totally sure to what extent that

10 differs from what -- Cornwall was saying to Mr Phillips.

11 Although I suppose the second half would be more -- I

12 think that they were told that they would get access to

13 all relevant intelligence, whereas this now goes into

14 something more specific.

15 Q. It is rather wider, isn't it?

16 A. Yes, more detailed in the sense that it is looking down

17 to files held by the RUC.

18 Q. Yes.

19 A. Which would indicate -- I suppose the difference would

20 be that if Mr Port decided there was something he wanted

21 to see, that was something he should be allowed to see.

22 It is more detailed, but it is the same idea: all access

23 to intelligence. And I was aware of that.

24 I don't think that really influenced me in the way

25 you are suggesting because I did appreciate there was

 

 

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1 stuff that Mr Port was going to see that I shouldn't

2 see. As the executive officer, he is the one who is

3 going to perhaps, if there was a prosecution, have to

4 give evidence in the witness box.

5 Q. That's a point you make in your statement, isn't it?

6 You stress the fact that it is personal; in other words,

7 it says "you" will have unlimited access. These were

8 not your terms of reference, but Mr Port's?

9 A. I read that as not -- the "you" is referring to him

10 personally and not the MIT.

11 Q. Thank you. Obviously I want to look with you now at the

12 points you deal with in your statement where there were

13 tensions or rubbing points, as other people have

14 described them, between you and some of the

15 Special Branch officers.

16 The first question I wanted to ask you is this: was

17 there, do you think, looking back on it, a personality

18 clash between you and the Head of South Region?

19 A. No, I think I have made it clear in my statement that I

20 accept we came from different directions and the Head of

21 Special Branch for South Region was a hard-working and

22 diligent Special Branch officer. But the areas of

23 concern to him, which was source protection, meant

24 that -- as we tried to creatively use intelligence, it

25 meant there was going to be differences. But it was

 

 

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1 never personalised. There are a number of examples in

2 my statement. I'm not going into them, but just to say

3 that when we did have differences, I don't recall voices

4 being raised or those sort of things happening.

5 Policing is very much like any other occupations; you

6 can have genuine differences between people and yet

7 behave in a civilised manner towards each other, and I

8 was never aware of anything untoward in the way that we

9 talked to each other. There are times we agreed to

10 differ.

11 Q. Thank you. Looking at your statement and the way you

12 deal with it there, very much in accordance with what

13 you have just told us, paragraph 29, at RNI-811-155

14 (displayed), you say:

15 "Although our approaches differed, I can't recall

16 any situation where these differences were

17 personalised."

18 Now, you are presumably aware that evidence has been

19 given to the Inquiry by, for example, the Security

20 Service and their witnesses to the effect that relations

21 between you, in particular, and B629 were very poor

22 within two months of the murder investigation. You are

23 aware of that evidence?

24 A. To be fair, I'm aware of the relations in the report

25 that S188 wrote. I haven't seen the transcript of what

 

 

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1 S188 actually said here, several days ago, and whether

2 or not in any way he changed what he said in his

3 original report. I only saw, by the way, the original

4 report several weeks ago as well.

5 Q. I appreciate you didn't see the report at any stage

6 until you were dealing with your evidence for this

7 Inquiry. Is that right?

8 A. It was a recent surprise, yes.

9 Q. Let's look at it together, if we may. It is at

10 RNI-532-061 (displayed). Although it is a reasonably

11 long report, the points can be seen very quickly in just

12 a few passages. Dated 24 May. This was the Security

13 Service officer who came over, as we see from the

14 background, at Mr Port's request, to, as it says there:

15 "Review the existing arrangements for the handling

16 of the intelligence relevant to the Rosemary Nelson

17 murder enquiry."

18 And you see 3a at the bottom of the page:

19 "Summary and recommendations.

20 "He found a high degree of personal antagonism and

21 mistrust between RUC SB, particularly Southern region,

22 and the investigation team (intelligence cell and the

23 SIO)."

24 And then moving on to RNI-532-063 (displayed), under

25 the heading "Key issues, relationships":

 

 

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1 "The key issue which quickly emerged during my visit

2 was the acrimonious state of relations between SB and

3 the remainder of the enquiry team. The relationship

4 between Regional Head of Special Branch South and the

5 SIO is particularly hostile. I had to listen to over an

6 hour of vitriol from both about each other during my

7 separate discussions before we could even begin to

8 address the more substantive items of business."

9 Now, just taking that for the moment, was that

10 a fair description of the state of your relations at

11 this point in May 1999?

12 A. Well, you went to question 2. Question 1 for me was

13 a fair report of the actual interview that S188 gave me,

14 and the answer is clearly not.

15 Q. You have moved straight to the sentence beginning:

16 "I had to listen ..."?

17 A. Yes, and some of the other issues as well. That's why

18 I said I hadn't seen what he actually said when he was

19 sitting where I am sitting now. So that's his report

20 that he wrote at the time.

21 Q. It may help you to know that he certainly didn't resile

22 from what he wrote in his report.

23 A. That wouldn't be my recollection of the conversation I

24 had with S188. I would say that I did put the point to

25 him in detail about some of the problems I was

 

 

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1 experiencing and how I thought more intelligence could

2 be made available to me.

3 I find the word "vitriol" strange, I have to say.

4 It is quite pejorative. I'm sure my colleague in South

5 Region also put his views across, but that's not my

6 style and this is a man who was a complete stranger to

7 me, so I don't see why I would go in to it that way.

8 I was asked by Colin Port specifically to try and

9 explain to S188 the real problems that were being

10 experienced to the ground. So subsequently I did try to

11 give him specific examples of investigations and where

12 the problems were occurring, not just in relation to

13 Mrs Nelson.

14 Q. Yes. Now, so far as his other comments are made, can

15 I just pick up a couple with you. First, the suggestion

16 in the last bullet point under 8 that you had a grudge

17 against Special Branch, and secondly, that you were:

18 "... keen to set precedents regarding the use of

19 intelligence and intelligence gathering resources during

20 this investigation to undermine the SB's position in

21 relation to CID".

22 Essentially there are three points there. Can

23 I just try and see how much you are prepared to agree

24 with. "Setting precedents regarding the use of

25 intelligence and intelligence gathering resources during

 

 

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1 the investigation" sounds very much the sort of thing

2 that you and I were discussing just a little while ago.

3 Do you agree with that? That was one of the things you

4 were trying to do with Colin Port?

5 A. The word "precedents" is a bad word there. I was trying

6 to change the way -- I wasn't trying -- back to your

7 campaign. I wasn't going to campaign to change -- that

8 came later in my career when I became an ACC. At this

9 stage, I just wanted to get more intelligence on who

10 killed Mrs Nelson.

11 I wanted changes regarding the use. Now, some of

12 the people I was asking for, I do know saw this as

13 a problem because if we give it in in this

14 investigation, they'll be asking for it at every other

15 investigation, which I think was one of the terms that

16 had been used to us at various times. And I think a lot

17 of -- Colin Port will be giving evidence, but I know

18 there were situations where people said we're

19 comfortable giving it to the outside officers. You are

20 only here for this investigation and then you go back to

21 England. It is the RUC officers who are here all the

22 time because they will want this type of support in

23 every investigation.

24 So I can understand why that comment was maybe made

25 about me, but at the time I just wanted more

 

 

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1 intelligence in relation to the murder I was

2 investigating.

3 Q. The concern felt, by some Special Branch officers

4 anyway, was that CID would, as it were, get used to

5 expecting to be able to use these sort of techniques and

6 resources in their criminal investigations. Was that

7 the point?

8 A. Yes, the position as it is now, where they are just --

9 what you do nowadays. But the first time you give it,

10 they will come back every time. That's the feeling

11 I got.

12 Q. Yes, the floodgates point?

13 A. Yes, I had seen that comment before, but not made by me

14 but made by other people as a reason not to give too

15 much.

16 Q. Now, the second and third points are, one, that you had

17 a grudge against Special Branch, and two, that you were

18 trying to undermine their position.

19 A. No, I don't accept that at all.

20 Q. Can I just come to the nub of this? You have given your

21 comments about it in your evidence and indeed in your

22 statement, this note. Can I just ask you, are you in

23 any way seeking to play things down at this point, to

24 suggest that everything was smooth and professional,

25 whereas in fact there genuinely were high feelings in

 

 

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1 play at the time, in May 1999, for example?

2 A. I only can talk about the conversations I had.

3 Q. Indeed.

4 A. And that Colin Port had. Yes, we were robust, we were

5 demanding. I have said that in my statement. I

6 understand that people had difficulties with why we kept

7 coming back for more and asking the same question maybe

8 two or three times in different ways. But from our

9 perspective, it was always presented, I think, in

10 a professional way.

11 Now, clearly after the event I have seen not just

12 this but other documents that indicate that some people

13 when they left us were clearly upset about some of the

14 things that we were doing. But at the time of the

15 interaction between us it certainly was done in

16 a professional way, and I never, for example -- I saw

17 Colin Port being very strong and very demanding, but

18 never in any way sort of personalising this. But

19 clearly there were difficulties, I accept that.

20 Q. Did you ever get the sense that -- and you may not

21 accept the word "animosity", but the feeling between the

22 various individuals was getting in the way of the work?

23 A. No, I didn't. I have to say that. And having said

24 that -- I don't think people who know me and who knew

25 Colin Port would in any way indicate that we were the

 

 

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1 type of people who would hold back from asking to do

2 something or doing something because it might offend

3 someone. So that's an important point to say.

4 But, I mean, I didn't get the feeling that there

5 was -- I mean, it would be a really crazy situation if,

6 for example, Special Branch decided not to give me some

7 of the relevant intelligence that's mentioned in the

8 second half of my second statement about saying anything

9 specific, you know, to suggest that they didn't give it

10 because they had some sort of animosity towards me. I

11 think it was their systems in place that probably

12 brought them to that situation, but I don't think they

13 said, "We will not give that to Kinkaid because he keeps

14 asking all these difficult questions".

15 Q. So, as it were, whatever the reasons were -- and we will

16 look at some of the examples in a minute -- you don't

17 think that was one of the reasons?

18 A. I don't think it was a personal issue with me because

19 they didn't tell it to Colin Port, they didn't tell it

20 to Arthur Provoost, they didn't tell it to M540. And

21 M540 had worked with a number of these Branch officers,

22 closely with them, and he knew them personally and they

23 didn't tell him either. He's -- as I think one Branch

24 officer, I think, in the statement you have got, he

25 describes Colin Port as a man of great integrity and

 

 

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1 Mr Provoost as a gentleman. I don't get a label, but

2 that's not the point. The point I'm saying is that they

3 weren't told either the sort of stuff that wasn't told

4 to me, irrespective of how they viewed them.

5 Q. Did you ever have cause to complain to Mr Port about the

6 behaviour, the way that Special Branch were behaving in

7 dealing with your requests?

8 A. Yes, obviously the issues around the O'Neill murder.

9 I still can't understand to this day how clearer I could

10 have been at a meeting and on a written request and,

11 I believe, a telephone call involving one other member

12 of the senior management team. I just cannot understand

13 how that wasn't given to us.

14 Q. Again, I'm not going to go through this, it is dealt

15 with in your statement. But as I understand it, your

16 point there is further that when you received an

17 explanation, it really didn't amount to much. Is that

18 a fair way of putting it?

19 A. Yes, administrative failings. No way -- I can't

20 understand.

21 Q. You weren't convinced?

22 A. Yes, in terms of the written requests and verbal

23 requests from me, I find it amazing that we weren't

24 given advanced notice of those searches.

25 Q. Can I just shift the focus a little bit to deal with the

 

 

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1 liaison officer, B567 -- you deal with him in

2 paragraph 30 and 31 of your statement -- and ask you

3 this very simple and open question: did you ever have

4 any reason to doubt that he was doing what he could to

5 help you in answering your requests?

6 A. As I said, I think --

7 Q. Sorry, it is RNI-811-155 (displayed). Thank you.

8 A. Yes, that's paragraph 30?

9 Q. Yes.

10 A. I thought carefully about this in terms of the wording

11 that I put down there because clearly it is what I knew

12 about my relationship with him in 1999 and the other

13 stuff that we haven't discussed in relation to this.

14 And I have to be honest, I found him very personable,

15 very approachable.

16 I have to say this in Special Branch's favour: when

17 I asked for stuff and I was given stuff, it was some of

18 the best stuff I ever got from Special Branch. Some of

19 the reports, D51 and other stuff, were truly brilliant

20 in helping us, for example, to understand -- corroborate

21 some of the forensic stuff that we were getting from the

22 charts.

23 The difficulty -- there was clearly stuff I wasn't

24 given when I did ask for it too, but where stuff came

25 down from DI B567, it was done professionally. He

 

 

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1 worked very hard. He worked hard with us and he was

2 a very personable person, and I have to say I gave him

3 a lot of work. And I can't recall him ever giving off

4 about the quantities of work or the time he had to spend

5 on it. He had to do a lot of liaison work with the

6 other regions and headquarter branches and he did work

7 very hard.

8 So from my perspective in 1999, he was a hard

9 working Special Branch officer who tried to provide us

10 with much. Clearly I know more now about stuff that I

11 didn't get, which is understandable, but at that time,

12 paragraph 30, I think, sums up what my relationship with

13 him was.

14 Q. Can I just remind you of one of the comments you make

15 there specifically. Having said that what you received

16 exceeded in terms of the level of detail, et cetera,

17 what you had experienced before -- that's some four

18 lines from the end -- you then go on to say:

19 "However, these were given in response to specific

20 requests. I cannot recall anything important that was

21 voluntarily provided."

22 So in other words, in terms of material coming from

23 them, off their own bat, it didn't amount to much?

24 A. No, what I got in great detail was in reply to policy

25 decision 19 and the minutes of the meeting that you had

 

 

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1 up -- the several meetings that you had up earlier,

2 where we asked for stuff, there was some terrific stuff

3 particularly from Belfast Region that came to us. It

4 was very useful. But I racked my brain -- because once

5 I saw this other stuff that was undisclosed to me that

6 was also relevant, clearly I have tried to think of

7 stuff that came to us without being asked and I can't

8 think of anything significant that wasn't part of the

9 original requests that we made. Maybe there wasn't

10 anything, to be fair to them, but that's my view.

11 Q. I want to come back to the impact of the written

12 requests, your approach in that way, in a moment. But

13 looking at the overall position in relation to B567 and

14 indeed Special Branch generally, apart from the question

15 of CHIS identities which I am going to put on one side,

16 was there ever an occasion where you were refused

17 assistance by Special Branch?

18 A. Well, there was -- the one problem -- paragraph 31,

19 I highlight in the first line, which was to do with an

20 enquiry that I carried out that I think particularly got

21 B567's superior upset, which ended up with him writing

22 to my own Chief Constable about it. But that would be

23 the one issue, you know, that, in terms of me dealing

24 with B567, that was in issue. And then there was

25 a further issue about phones, but that was more dealt

 

 

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1 with by Mr Port.

2 Q. Yes. Now, so far as the course of the relationship, if

3 I can put it that way, which, again, you trace in your

4 statement, one of the early matters you deal with -- and

5 this is in paragraph 47, the section beginning on

6 RNI-811-160 (displayed) -- this is where you explain,

7 under the heading "My first conference meeting", when

8 you were told first -- this is the top of the page on

9 the screen -- about Operation Fagotto, and you say

10 there, because it was a request you had made, namely for

11 details of undercover operations, both police and

12 military, right at the outset, that it is something that

13 in your view should have been, as you put it there,

14 "instantly reported to [you]" on the day of the murder?

15 A. Yes, it may not be everybody's view, but certainly my

16 view was that if a murder like that had taken place and

17 it was known -- I think it ought to be known that there

18 was an undercover operation that would have involved her

19 street, that that should have been the first port of

20 call for Special Branch to me. That was my view at the

21 time, and my feeling was -- and it is only a personal

22 feeling because I only got to know about it because

23 I asked next day, written, did you have any undercover

24 operations. It took three days for somebody to tell me

25 even then.

 

 

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1 Q. It fits with what you were saying a little earlier that

2 you got material because you asked for it?

3 A. Yes, but that's the other aspect, Mr Phillips, where

4 people didn't always appreciate why you'd want it. A

5 Special Branch officer would never have any idea of what

6 we called "unidents". Unidents are people in cars in

7 your enquiry who come into it, and they are given

8 special numbers and you spend your time through your

9 house-to-house and your witness things trying to find

10 out because a witness says, "I saw a white car in

11 Mrs Nelson's street at 8 o'clock on Sunday night". So

12 you spend all your time trying to find out was it a taxi

13 or a pizza delivery man, or whatever it was, to try and

14 eliminate it from being the terrorist. And my view was

15 there was surveillance cars were in the area at the

16 time, and so, consequently, as a detective I would have

17 expected him to tell us, look, there were four cars --

18 a red Cavalier, a blue Volvo, whatever it is. So

19 immediately that helps with the unidents, which you

20 spend an enormous amount of time trying to trace.

21 Even at that very basic level, forget the collusion

22 side, the very basic issue of an unident it would have

23 been really useful to have been told that on the day of

24 the murder, rather than four or five days later where we

25 were sitting charting unidentified cars, and it could

 

 

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1 have been extra surveillance cars were some of them.

2 Q. In terms of the overall position in the murder

3 investigation, what was lost as a result of those few

4 days' delay?

5 A. It is hard to say. Certainly a lot of effort was put

6 into looking at that, and clearly -- that's just on the

7 unidents side. But with the allegation of collusion in,

8 I would have thought senior officers -- the senior

9 officers hearing that there was an allegation of

10 collusion relating to security force personnel and

11 security force operations in the area prior to

12 Mrs Nelson's death, and the Mulvihill detectives and all

13 the other issues that were raised, they might have

14 thought, "That undercover operation, we had better tell

15 Kinkaid about", to at least, from our perspective, show

16 it was a genuine operation. And I just found it strange

17 that they hadn't picked up on why an SIO would really be

18 interested in that.

19 Q. Can I ask you this question: to what extent was your

20 approach to Special Branch during the investigation

21 shaped by the fact that there were these allegations of

22 collusion being made against the security forces?

23 A. Well, they were a strong factor in many of the decisions

24 I made. You start off -- just because you are an RUC

25 SIO doesn't mean to say that you were not oblivious to

 

 

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1 the history of what has happened in Northern Ireland

2 prior to her death.

3 I mean, a good example would be when the people from

4 Kent come over, you have had a witness here talking

5 about seeing a man with a balaclava getting out of

6 a Land Rover, and this highlights the context thing, and

7 sitting down and explaining to Mr Humphreys the

8 allegations that were made in Armagh in relation to

9 a death of a Republican about people who may or may not

10 have got out of a security force Land Rover. The minute

11 that came in my radar, you know, there was alarm bells

12 ringing in my head and explaining to Ian Humphreys as to

13 why, in the Northern Ireland context, this was a serious

14 issue, even though people would say at the time, people

15 wore sort of body armour and fire-proof balaclavas and

16 all those sort of things. But clearly, it was something

17 that was important to me.

18 So clearly from the beginning, collusion for me was

19 a main line of enquiry, which explains the points you

20 said about me trying to explain to Sir David Phillips

21 why he wasn't comfortable with his confidence on the

22 whole issue of the forensic, and also on the document

23 you showed earlier where S188 refers to me I think in

24 words that -- I quote his words now, not anybody else's:

25 "Kinkaid unhelpfully still calls this a collusion

 

 

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1 enquiry."

2 They clearly had decided this was a LVF murder two

3 months into it. And I was trying to say, no, we have

4 not settled all these issues. So clearly collusion was

5 a real factor for me and it was for Colin Port and

6 Arthur Provoost during this investigation, and ran

7 parallel to all the work we were doing in what you call

8 the main hypothesis.

9 Q. Did you refer to it, do you think, as a collusion

10 enquiry in your discussions with S188?

11 A. I think I probably would have had to convince him that

12 this was also a collusion enquiry. I have no doubt that

13 those words would have come into it, that the issue of

14 collusion was not settled in May -- are we talking about

15 26 May, whenever it was, when I was interviewed by S188?

16 There is no way, thinking back to what I was doing

17 in relation to the helicopters and all the other things

18 that we were doing. I mean, Arthur Provoost had just

19 finished his review and was about to kick off as the

20 main collusion person, and you do know without saying

21 that the amount of stuff that he had to look at for the

22 next several years that came out of the sensitive

23 context in relation to collusion investigations.

24 So clearly there was no way you could not have said

25 that collusion was not a major line of enquiry

 

 

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1 in May 1999.

2 Q. Now, can I just look with you, please, at the document

3 which you have referred to that I want to make sure

4 everybody else has got in their minds, where you make

5 the requests for details of undercover operations

6 because it comes right at the beginning of this

7 relationship and is significant. It is at RNI-616-777,

8 I think (displayed). Yes.

9 Now, this is an extract, isn't it, from the policy

10 file? We have looked at an extract from the secret

11 policy file. This is the first extract we are looking

12 at from the policy file, and the decision we are

13 concerned with is PL19, isn't it?

14 A. That's correct, yes.

15 Q. And that says on 16 March at 10 that:

16 "[You] and M540 held a meeting with the Regional

17 Head of Special Branch, B629, and 567 and gave the

18 following taskings."

19 And then they are listed, and the relevant one for

20 us now is:

21 "SB will provide the SIO with details of SB and

22 military undercover operations in the Lurgan area on

23 Friday and Saturday."

24 And then, as we see, there are five other taskings

25 and the reasons given are:

 

 

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1 "To ensure that the most efficient use is made of

2 intelligence and that all such intelligence is made

3 available to the Inquiry team."

4 Now, you handed those taskings over, didn't you, in

5 writing?

6 A. Yes, that's correct. Each of them had a specific action

7 raised with a number on the HOLMES account.

8 Q. Exactly. What you say about this, which you have

9 already mentioned in your evidence in paragraph 58,

10 RNI-811-164 (displayed), is that you suspected if you

11 hadn't asked that specific question, you wouldn't have

12 been told about it.

13 So when you learned on the 19th that this operation

14 had been going ahead, did that confirm you in your views

15 about the way Special Branch were likely to conduct

16 themselves during the investigation?

17 A. Certainly there was a sharp intake of breath when I was

18 informed of this both in terms of the content and the

19 timing. I certainly would have liked to have got this

20 earlier. You say did it confirm, it certainly confirmed

21 to me the need for quicker disclosure of relevant

22 intelligence or information.

23 SIR ANTHONY BURDEN: Just looking at this sheet here, can

24 I just confirm with you the times and the dates of the

25 requests were, I think it says here, on 16 March.

 

 

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1 A. Yes, I think that's the day.

2 SIR ANTHONY BURDEN: Early in the morning, the day after the

3 murder.

4 A. Yes.

5 SIR ANTHONY BURDEN: That would be even before Mr Humphreys

6 arrived on the scene?

7 A. Yes, there was two big decisions made that morning:

8 Mulvihill detectives and that series of requests to

9 Special Branch, on the first morning afterwards.

10 SIR ANTHONY BURDEN: So very much a priority in your mind?

11 A. Definitely a priority in my mind.

12 SIR ANTHONY BURDEN: And your initiatives basically, you

13 didn't need to be prompted to ...

14 A. I was nervous and nobody had ever done this before, and

15 so consequently, I mean, it was the first time I had

16 done it in this way.

17 Looking back now, if Mr Humphreys guidance there

18 about secret policy books, it should have went in the

19 secret policy book, but that's only an administrative

20 issue. But the right questions were being asked in my

21 mind and they were asked very early, and what I wanted

22 was for the Regional Head of Special Branch to go away

23 and have no doubt about the wide range of intelligence

24 that I, as a detective, thought would be relevant and

25 not the obvious ones. And consequently, that's why

 

 

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1 number 1 was in there because that would definitely have

2 not been a request normally given by CID officers.

3 SIR ANTHONY BURDEN: I'm not suggesting this was when you

4 arrived on that second morning, but very, very early on

5 you saw this as one of your priority actions to get

6 underway?

7 A. Yes. Bluntly, the two issues I was trying to deal with

8 on the evening was talk to Mr Nelson, which I did quite

9 late on, and then do those sort of things as an SIO

10 because they were important to do. Sort out who exactly

11 was a Mulvihill detective; that wasn't obvious, simply

12 because of the fact that, you would know in your

13 experience, C&D -- Complaints and Discipline

14 investigations tend to be covered with a confidentiality

15 cloak and I needed to know them. And the third issue

16 was this. Now, this was me in many ways because this

17 was something I thought was important on the basis of

18 the previous investigations where I felt I hadn't been

19 told everything, and then was open to the charge, "We

20 didn't know you wanted that", hence the detailed list.

21 SIR ANTHONY BURDEN: My final question was to ask you that,

22 and very helpfully you have provided the comment that it

23 was basically stored experience from previous enquiries

24 where you had, to use your term I think, been

25 stonewalled, that this was how you were going to do it

 

 

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1 and it was an immediate action on your part?

2 A. That's right.

3 SIR ANTHONY BURDEN: Thank you very much indeed.

4 THE CHAIRMAN: Did you specifically give the reasons that

5 are set out in this document to ensure the most

6 efficient use is made of the intelligence and that all

7 such intelligence is made available to the enquiry team?

8 Was that spelt out to Special Branch at 10 o'clock that

9 morning?

10 A. There was a conversation just -- where I maybe had to

11 feel that I had to highlight to them why certain of

12 these things would be of interest to me. For example,

13 if you look at 5 -- this is from a CID detective's

14 experience. There is more to making and planting a bomb

15 than being the person who sets it under her car. So,

16 consequently, suspected of involvement in the murder is

17 much wider than, you know, the business of planting the

18 device. And in my experience, I was just concerned I

19 was only going to get the front end, if you'd call it,

20 of the intelligence that was going to come out.

21 So I did try and explain some of these things to

22 help them understand. I didn't say too much as to

23 number 1, but for the purposes of this Inquiry, I was

24 already aware by that date that a number of helicopters

25 were in the sky over the weekend. And my previous

 

 

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1 experience of military support to the police was that

2 all wasn't to do with public order. There was a very

3 sophisticated type of assistance that could at times be

4 given to surveillance operations. Whether or not there

5 was the case, I can't recall, but it was one of the

6 reasons -- I was trying to ask obvious questions not

7 just about public order helicopters, but about

8 surveillance helicopters as well. That's why I wanted

9 those details, exactly to do with the collusion

10 investigation.

11 THE CHAIRMAN: With regard to tasking number 1 as written in

12 this document, it could be said it referred only to the

13 Friday and Saturday, but in fact you were provided with

14 Fagotto, which was on the Sunday?

15 A. Yes, that was one of the -- I think -- I can't get into

16 their minds, but clearly I had been going on the basis

17 of the helicopters that were in the sky and the

18 operations, and asked the questions and they came back

19 and give me an answer but related to a different day.

20 THE CHAIRMAN: Thank you.

21 DAME VALERIE STRACHAN: Are you going to come back to this

22 document?

23 MR PHILLIPS: I was going to ask a question about it.

24 DAME VALERIE STRACHAN: You ask yours first.

25 MR PHILLIPS: Thank you. That might be a good example of

 

 

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1 the downside of the written system that you have been

2 explaining, mightn't it, because in a sense you are

3 setting your own ambit, and provided they give you an

4 answer within the ambit, might they not feel justified

5 in withholding something which strictly fell outside it?

6 A. It was better than the system which existed before. The

7 system in 2003 I introduced was better than that, but by

8 that time I was the ACC and, as the children's game --

9 could shout "O'Grady says", so I could make the changes

10 that were relevant. But in 1999, from my perspective

11 that was the best an SIO could manage to obtain.

12 DAME VALERIE STRACHAN: My question was, you commented that

13 you had phrased the questions pretty widely. It could

14 be argued that you could have phrased the requests even

15 more widely to say, "Please give me any intelligence

16 that has come in about anybody in the course of, say,

17 the week before the murder". Did you think about that?

18 A. No, not in those terms, but one of the things that we

19 did that would be relevant to that was that we were

20 aware that a lot of threat intelligence had come into

21 the system and had been distributed amongst the police

22 and military for the weeks before, and the sighting

23 reports that come in through the clearing system. So we

24 did look at that to see if that raised anything, but we

25 didn't sort of ask any -- I mean, frankly, the amount of

 

 

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1 intelligence that would have been coming from the system

2 (redacted) would be enormous,

3 and a lot of it would have dealt with Republican

4 terrorists or stuff coming through South area that

5 relates to Belfast.

6 I don't think -- I definitely don't think I would

7 have been given that sort of material, but I felt that

8 those sort of five main requests there were something

9 that I didn't think could be argued against in terms of

10 an SIO. But I think if I had asked exactly what you

11 suggest, it would have been lovely to get, but I think

12 the answer would definitely have been no on that. Just

13 make your request more defined, I think would have been

14 the answer coming back.

15 DAME VALERIE STRACHAN: I suppose you could have said, this

16 is very early days, to rule anything out, even the most

17 unlikely possibilities?

18 A. Well, I think it is important, if you look particularly

19 at 2 -- I'm dealing with the death of someone. There is

20 a lot of intelligence, I'm sure -- I know now looking

21 back on the system -- about the Garvaghy Road Residents

22 Coalition and the role that Mrs Nelson played in

23 relation to that. That, even going back and looking at

24 it, has no connection that I can see to the specifics of

25 her death. But number 2 is relevant in the sense that I

 

 

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1 didn't ask for them to provide intelligence on threats

2 only from Loyalists. It was any threats that they were

3 aware of. And it is worded like that simply because it

4 could have been police officers, or Royal Irish, it

5 could have been Loyalists, it could have been other

6 Republicans whom she had fallen out with that I was

7 unaware of.

8 The question says intelligence on threats and the

9 intelligence they gave me on threats was all to do with

10 Loyalists. So I think that particular question is wide

11 enough to catch all the threat stuff related to

12 Mrs Nelson outside of any narrow band or focus that I

13 was on on the first day.

14 MR PHILLIPS: Sir, I think we have come past six o'clock and

15 we have probably come to the end of the stenographer's

16 tolerance.

17 A. Sorry, I just asked earlier if it was possible for me

18 just to go back to one paragraph.

19 THE CHAIRMAN: Yes.

20 MR PHILLIPS: Yes.

21 A. It was a question that sort of come into me earlier

22 which was to do with the murder manual. I think

23 Dame Valerie raised the issue about to what extent

24 working with the Kent people, although it wasn't sort of

25 indoctrination, the message was passed. That is exactly

 

 

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1 as I recall it, but it was paragraph 253 of my first

2 statement.

3 Q. That's RNI-811-139 (displayed).

4 A. It is just in case, when I was asking the question, I

5 didn't possibly say it correctly in terms of what my

6 view was, but as I indicate there:

7 "The Kent officers were obviously well aware and

8 conscious of MIM in March 1999 and passed that to me

9 where they thought appropriate obviously, but we

10 weren't. They brought a copy and I did not have the

11 capacity to say ...(Reading to the words)... high-pro,

12 intensive terrorist-related murder investigation to

13 carry out an in-depth study of a new guidance document,

14 albeit one, as it says at the top, which I believe had

15 limited value to investigating terrorist-related

16 murders."

17 It wasn't a document -- and when you see the size of

18 it, that's my view -- it wasn't a document that could be

19 assimilated by an SIO in Northern Ireland whilst he was

20 on the job. But that does not mean to say that, as you

21 can see from the Op Cornwall, without actually saying

22 this is from MIM, at times Mr Humphreys very helpfully

23 was directing me to prove certain of the things I did,

24 and clearly was drawing on his MIM experience, but

25 realising he was talking to someone who didn't know the

 

 

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1 in-depth things that he knew. That's all. Thank you.

2 THE CHAIRMAN: Thank you. What time should we resume in the

3 morning?

4 MR PHILLIPS: Well, sir, because I expect our closed session

5 to be at the end of the day, I suspect that we should

6 start at the usual time and that will give me an

7 incentive to do some judicious cutting.

8 THE CHAIRMAN: Right. We will start at 10.15.

9 Could you be good enough to be here in plenty of

10 time, Mr Kinkaid, in the morning?

11 A. Okay.

12 (6.05 pm)

13 (The Inquiry adjourned until 10.15 am the following day)

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