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Full Hearings

Hearing: 11th September 2008, day 49

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ROSEMARY NELSON

PUBLIC INQUIRY

 

 

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


on Thursday, 11 September 2008
commencing at 10.15 am


Day 49

 

 

 

 

 

 

 


 

1 Thursday, 11 September 2008

2 (10.15 am)

3 MISS GERALYN MCNALLY (continued)

4 Questions by MR PHILLIPS (continued)

5 THE CHAIRMAN: Yes, Mr Phillips?

6 MR PHILLIPS: Miss McNally, we were looking yesterday at the

7 application for dispensation, which was made by P146 at

8 the end of July 1997. Do you remember I asked you why

9 it was that these LAJI cases were not appropriate cases

10 for dispensation and you said, just before the close of

11 play yesterday, that:

12 "In the meantime, there had been engagement through

13 correspondence and Rosemary Nelson had indicated she

14 would cooperate with the second limb of the complaints

15 which had been lodged."

16 Can I just ask you about that, please? By the

17 reference to "second limb", did you mean the

18 Colin Duffy/Rosemary Nelson complaints?

19 A. Yes.

20 Q. Thank you. I think you also said yesterday that those

21 complaints came to be supervised by you as well?

22 A. Yes, that's right.

23 Q. It is right, isn't it, that they also had the same

24 investigating officer, P146?

25 A. That's correct.

 

 

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1 Q. But they were separate complaints from the LAJI

2 complaints, weren't they?

3 A. They were separately lodged, yes.

4 Q. In relation to those complaints, the Colin Duffy

5 complaints, at the time of the application for

6 dispensation they really hadn't got off the ground, had

7 they? There hadn't been any steps taken by way of

8 investigation?

9 A. No.

10 Q. Thank you. So far as the application for dispensation

11 is concerned, presumably the question was whether the

12 LAJI cases were appropriate cases for dispensation?

13 A. Yes, that's correct.

14 Q. And they had to be approached, those cases, and what had

15 happened or not happened in relation to them, on their

16 own merits?

17 A. Yes.

18 Q. And you said to us yesterday in relation to another part

19 of your statement, paragraph 33, which we can see at

20 RNI-813-820 (displayed), that your job was to make sure

21 that each case was investigated thoroughly and each

22 complaint was judged on its own merits. Do you see that

23 passage?

24 A. Yes, I do.

25 Q. Here, what you were doing in resolving the question of

 

 

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1 dispensation was in fact taking into account an

2 indication of cooperation on completely separate

3 complaints, wasn't it?

4 A. No, I wouldn't agree with that. I think in terms of

5 a consideration for dispensation, one of the matters

6 that would be considered is if there was a change of

7 circumstances and that might include the potential for

8 cooperation of the witness --

9 Q. But you said to us -- sorry to interrupt you.

10 A. I was going to go on to say that obviously that would

11 have been a consideration on my part. The decision

12 around dispensation, as I understand it, was finally

13 resolved, I think, later.

14 Q. Yes. We will come on to that in a minute and we will

15 see the basis on which it was put. But if you remember,

16 the answer you gave at the close of yesterday and which

17 I repeated back to you this morning, was that

18 cooperation had been indicated in relation to these new

19 complaints, the Duffy/Nelson complaints?

20 A. Yes.

21 Q. That wasn't a proper matter for you to consider in

22 relation to question of dispensation for the LAJI

23 complaints, was it?

24 A. It was a matter to consider because the potential for

25 cooperation and provision of relevant evidence would

 

 

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1 have been facilitated with an interview.

2 Q. Evidence relevant to what?

3 A. Relevant to this part of the complaint.

4 Q. To the Colin Duffy complaints?

5 A. To both.

6 Q. I see. So are you saying that the indication was that

7 cooperation would be forthcoming on the LAJI complaint

8 as well?

9 A. Well, one took a pragmatic approach.

10 Q. With what result?

11 A. With the result that dispensation was not acceded to.

12 Q. On the basis that you hoped there would also be

13 cooperation on the LAJI complaint?

14 A. Yes, I think that is fair.

15 Q. Yes. Now, when the first consideration of the question

16 of an application for dispensation arose, in July 1997,

17 is it right that you and Jennifer Mitchell expected that

18 dispensation would be granted?

19 A. I think in issuing the 21-day letter, that would have

20 been part of the consideration, yes.

21 Q. Can we look, please, together at RNI-222-038

22 (displayed)?

23 A. Yes.

24 Q. This is a file note, I think, of Jennifer Mitchell's.

25 You see her signature at the bottom left-hand corner?

 

 

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1 A. Yes, I do.

2 Q. And the date of 25 July:

3 "It was agreed that no acknowledgement of receipt

4 would be forwarded at this stage, but rather that when

5 dispensation was granted (as it appeared would be the

6 case) the letter to Lawyers Alliance would reflect all

7 correspondence from that organisation."

8 She was suggesting, wasn't she, at that stage that

9 dispensation was likely, and that is 25 July 1997?

10 A. Yes, that's right.

11 Q. Can you remember now when the indication came through

12 that there might be cooperation forthcoming from

13 Rosemary Nelson?

14 A. I think it was some time in July, July/August. I can't

15 remember the exact date.

16 Q. Well, let us look together at the file note on that. It

17 is at RNI-209-131 (displayed).

18 A. Thank you.

19 Q. As far as we can tell -- and this is dealt with in your

20 statement, so you know, at paragraph 24 at

21 RNI-813-818 -- perhaps that could be on the right-hand

22 of the screen, please (displayed) -- under the heading

23 "Miss McNally" at the top of the page:

24 "I confirm that interviews have been arranged."

25 That is dated 27 August. Might it be that that was

 

 

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1 the first reference to the likelihood of cooperation?

2 A. Possibly, but I would have assumed -- and this is an

3 assumption on my part, but generally what would have

4 happened is that my assistant, Mrs Mitchell, would have

5 been in contact both with the IO and dealt with the

6 admin. So -- it is more likely that there is previous

7 correspondence in relation to that.

8 Q. We know that the formal application for dispensation

9 came in at the beginning of August that year?

10 A. Yes.

11 Q. We can see that at RNI-202-086 (displayed). That came

12 from the Superintendent; in other words, the superior

13 officer of the investigating officer, P146?

14 A. Yes, thank you, that is helpful.

15 Q. Do you see 6 August?

16 A. I do.

17 Q. We also know that the interview which eventually took

18 place with Rosemary Nelson took place in the middle

19 of September?

20 A. That's correct.

21 Q. So what I'm trying to work out -- and see if you can

22 help us from your memory -- is when it was that you

23 first had an indication that cooperation would be

24 forthcoming?

25 A. I can't give you a precise date, but it is in or about

 

 

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1 that relevant time. I don't think I can be more clear

2 than that.

3 Q. It was going to be the first interview that had actually

4 taken place on the LAJI complaint?

5 A. That's correct.

6 Q. The LAJI complaint was initiated in the middle of March,

7 you remember, the letter of the 13th?

8 A. I do.

9 Q. It had been on your desk, as it were, since about April,

10 I think?

11 A. Yes.

12 Q. And really nothing had happened in the intervening

13 period despite the best efforts of the investigating

14 officer?

15 A. Nothing had happened, no.

16 Q. So weren't you taking an extremely lenient attitude

17 towards non-cooperation in this particular case, given

18 that elapse of time?

19 A. No, I disagree with that.

20 Q. Is it an approach to cases that you think you adopted as

21 a matter of general practice?

22 A. Sorry, I don't understand your question.

23 Q. Here, nothing had happened at all.

24 A. Yes.

25 Q. Months had gone by, weeks, indeed, went by from the

 

 

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1 formal application for dispensation before the first

2 note that an interview had been arranged.

3 Is that the way, in general, you would have allowed

4 other cases to be run; in other words, long periods of

5 time granted to see whether cooperation would eventually

6 be forthcoming?

7 A. That really varied on a case-to-case basis, but in

8 relation to these matters, as I have said, I think it

9 was a pragmatic decision, given that there was

10 a likelihood of cooperation, that relevant evidence

11 could be provided.

12 Q. Were you giving this case special treatment because of

13 its exceptional nature?

14 A. No, I wouldn't agree with that.

15 Q. Elsewhere in your statement and in the documents we have

16 seen, we see that you took exception, for example, to

17 the cases where interviews were arranged. You presented

18 yourself for interview and, in fact, the officer was on

19 holiday or on sick leave, something of that kind. Do

20 you remember that?

21 A. There were a number of cancellations without prior

22 notice, yes.

23 Q. And you took -- I hope this is a fair summary -- a dim

24 view of that?

25 A. I didn't feel it was an appropriate course of action.

 

 

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1 Q. And it is one of the matters that you raised by way of

2 criticism of the investigation in the documents that we

3 will come on and look at, which were generated in 1998?

4 A. I did, and that was a matter subsequently dealt with by

5 Commander Mulvihill and subsequently by the working

6 group.

7 Q. Exactly. But here, the cause of all this delay was

8 simply that nobody was turning up to be interviewed in

9 the LAJI complaints?

10 A. Yes, that's correct.

11 Q. Weren't you, therefore, taking a rather more lenient

12 view of that sort of non-attendance than the view you

13 took in relation to officers not turning up for

14 interview?

15 A. No, that's not correct.

16 Q. You don't think it was an inconsistent position?

17 A. I do not.

18 Q. Thank you. So far as dispensation is concerned, can we

19 look together at the decision letter? It is at

20 RNI-202-097 (displayed) and as you suggested, I think,

21 it does come some time after these events; indeed, it is

22 not written until 14 October. Do you see the date at

23 the top right-hand corner?

24 A. I do.

25 Q. Thank you. It is addressed to the

 

 

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1 Assistant Chief Constable, who is the head of this

2 department or branch, and you set out the formal

3 decision and the grounds, and they're to be found in the

4 second paragraph:

5 "I can now confirm that on 16 September Ms Nelson,

6 solicitor, attended for interview at Craigavon RUC

7 station in respect of other complaints ..."

8 That's the Colin Duffy/Rosemary Nelson complaints,

9 isn't it?

10 A. That's right.

11 Q. "... and at that time provided sufficient information on

12 which to base on investigation into the subject matter

13 of this complaint."

14 So it looks as though the ground when the decision

15 was actually formally made was what had happened in the

16 interview on a completely different topic in the middle

17 of September; is that right?

18 A. I think that is fair, yes.

19 Q. So can I take it then that if in that interview

20 Mrs Nelson had not been prepared to provide information

21 about those other matters, dispensation would have been

22 granted?

23 A. Well, that's a hypothetical question, but I think it

24 would be fair to say yes.

25 Q. Well, the ground that you have put forward here would

 

 

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1 not have existed, would it?

2 A. That's correct.

3 Q. Now, can I ask you some questions, please, briefly,

4 about that interview because in the course of your

5 statement you attach some importance to it?

6 It took place on 16 September, as I have said. At

7 RNI-209-183 (displayed) in our file we see the note I

8 think made by Jennifer Mitchell?

9 A. Yes, I have that, thank you.

10 Q. It goes on to RNI-209-184 and perhaps we could have that

11 second page, RNI-209-184, on the right-hand side of the

12 screen (displayed)?

13 A. Yes, thank you.

14 Q. In your statement at paragraph 26, you say fairly that

15 your recollection of the meeting has faded due to the

16 passage of time.

17 A. Yes.

18 Q. Can I ask you this: if you hadn't had the benefit of

19 this reasonably full note of the meeting and of the

20 statement itself, of course, which was taken, would you

21 have had any actual recollection of the meeting?

22 A. A vague, general recollection. I think that is -- I

23 have been very helpfully assisted by a number of

24 contemporaneous notes in the making of my statement.

25 Q. So there are matters, are there -- just to take this

 

 

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1 more generally -- where you have had to refer to the

2 documents to reconstruct events that you don't really

3 have any memory of now?

4 A. I would say that the contemporaneous notes have assisted

5 me, yes.

6 Q. Can I ask you this: was it the first time you had met

7 Rosemary Nelson?

8 A. To the best of my knowledge, yes.

9 Q. Can you recall for us now anything about her demeanour

10 in the interview?

11 A. Nothing really comes to mind, no.

12 Q. Now, in the note it says in the second paragraph that

13 you explained the role of the Commission and your

14 particular role. Did you feel that she in particular

15 needed some reassurance about the complaints procedure?

16 A. No, that was always my approach, to explain my role and

17 my duties. That was a normal course of action.

18 Q. It is a note that we see, or that particular sort of

19 comment, in various interview notes in the past. So

20 this was a standard thing you did, was it?

21 A. Yes, that was just my procedure.

22 Q. Do you remember we discussed yesterday the question of

23 her non-cooperation and, indeed, her attitude towards

24 the whole system and you said you thought you had helped

25 to change that?

 

 

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1 A. I did, yes.

2 Q. Now, was this the first opportunity you had to, as it

3 were, put to her the way the system worked and your part

4 within it?

5 A. It was because that was our first meeting.

6 Q. Indeed. Were there subsequent conversations between you

7 in which you sought to reassure her as to the

8 effectiveness of the complaints system?

9 A. Were there subsequent?

10 Q. Yes.

11 A. I can't recall something specific, but I certainly was

12 formally indicating my role and the nature of the

13 complaints process and how my involvement would be

14 factored into that.

15 Q. Are you able to help with this: why was it, are you able

16 to say, that cooperation was forthcoming at this point?

17 A. I can't say.

18 Q. And are you able to help with this: can you identify,

19 even if by reference to a rough period of time, when you

20 think Rosemary Nelson's own attitude to the complaints

21 system changed?

22 A. I can't say, no.

23 Q. But was it something that you, as the supervising

24 member, were aware of during the course of the following

25 months?

 

 

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1 A. All I can say is that she did cooperate with the

2 investigation and provided evidence on two occasions and

3 subsequently facilitated cooperation on behalf of some

4 of her clients.

5 Q. In relation to the statement -- I would just like to ask

6 you to look at that briefly, please, and again, if we

7 put it on the screen, RNI-213-023 (displayed) -- the

8 business of flicking through documents is rather

9 cumbersome on the screen, I'm afraid, as you can

10 imagine.

11 A. That's okay.

12 Q. But I would like to do the equivalent at least of that

13 because I don't want to go into this in any detail.

14 Can I just ask you, it looks from the statement as

15 though detail was given by Rosemary Nelson in relation

16 to the Duffy complaints, and then there is a shift and

17 the question of threats more generally emerges, and that

18 we can see together at the bottom of RNI-213-025

19 (displayed). Do you see there is a sentence, three

20 lines from the bottom:

21 "This ..."

22 The question of comments, threats:

23 "... appears to be part of an ongoing pattern ..."

24 Then she starts to talk about her experience over

25 this year?

 

 

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1 A. Yes, that's right.

2 Q. If we turn over, please, to RNI-213-026 (displayed),

3 that is where the reference to the Committee On the

4 Administration of Justice or CAJ, is made?

5 A. Yes, that's right.

6 Q. Now, this was the point, was it, that you first had an

7 indication that she was going to facilitate or cooperate

8 in relation to the LAJI complaint?

9 A. Yes, that's correct.

10 Q. Yes. Can I ask you, in the course of the interview --

11 it may be you can't recall now -- can you remember how

12 this new topic came up?

13 A. I can't remember specifically, no.

14 Q. Did the interview proceed with questions from the

15 investigating officer and answers? How did it work?

16 A. Yes, the investigating officer's role was to take

17 evidence from Mrs Nelson, as with any other complainant.

18 That would have involved questions and answers,

19 a formalised conversation, if you like.

20 Q. How did the statement get drafted? Was that something

21 separate?

22 A. That's really -- I think the investigating officer would

23 answer that better than I would, but from recollection

24 the contemporaneous notes that were taken in terms of

25 questions and answers were then translated into the body

 

 

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1 of the statement.

2 Q. It looks as if it was signed on the same day,

3 RNI-213-023 at the top. Can we see that please

4 (displayed)? Thank you.

5 So was it something that was produced at the end of

6 the interview?

7 A. I would doubt that it was produced in typewritten form

8 at the end of a short interview, no.

9 Q. But you don't have any particular recollection?

10 A. I don't, I am afraid. I apologise for that.

11 Q. I will come back to the CAJ in a moment, if I may.

12 A. Yes.

13 Q. But just to complete what was covered, at RNI-213-026

14 (displayed), we see that Mrs Nelson went on to deal with

15 some of the suggestions made in a letter of 30 June by

16 the Lawyers Alliance for Justice in Ireland about the

17 Duffy complaints?

18 A. Yes.

19 Q. And effectively gave her own version of events and, in

20 the process, effectively corrected one or two of the

21 assertions made by Mr Lynch?

22 A. Yes, that's right.

23 Q. Now, can I ask you this question: did those comments,

24 those specific comments correcting what Mr Lynch had

25 said, raise any doubts in your mind about the substance

 

 

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1 or the validity of the LAJI complaint?

2 A. No, it was just a matter of Mrs Nelson clarifying in

3 terms of her own words what her complaint was.

4 Q. Was it in fact your role to consider such questions?

5 A. No, my role was to ensure that the investigation was

6 conducted properly. I think I was clear about that

7 yesterday in my evidence.

8 Q. Can I ask you, please, to look at paragraph 30 of your

9 statement, and it is at page RNI-813-819 (displayed)?

10 A. Yes.

11 Q. You see there at the bottom of the page you describe the

12 authority being given for access to the CAJ statements

13 as being a huge step forward?

14 A. Yes.

15 Q. Can I ask you just to help, please? Why did you regard

16 it in that way?

17 A. In terms of providing relevant evidence to the prospect

18 of progressing the investigation.

19 Q. Was it because simply nothing had been forthcoming to

20 that point?

21 A. I think the importance attached to it was in relation to

22 the content of the statements and how they could assist

23 the investigating officer and the investigation overall.

24 Q. But these were statements from the clients who said that

25 allegations had been made to them, weren't they?

 

 

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1 A. That's correct.

2 Q. Because Mrs Nelson herself was not in a position to give

3 any evidence about those remarks because obviously she

4 hadn't been present when they were made?

5 A. That's why she referred to her -- gave the authority for

6 the statements to be released.

7 Q. And without statements or the relevant clients of hers

8 coming forward to give evidence about them, there was

9 really nothing to go on in relation to the substance of

10 the LAJI complaints at all, was there?

11 A. I think that is fair, yes.

12 Q. So this, I think, marked, didn't it, a new phase in both

13 the LAJI and the Colin Duffy-related complaints because

14 from then on, perhaps gradually, but the LAJI

15 investigation began to have some sort of life, and

16 meanwhile the other investigations, which you refer to

17 in your statement, continued over the next months?

18 A. Yes.

19 Q. You set out in considerable detail the progress of those

20 investigations in your statement, but what I would like

21 to do now, please, is to fast forward to April, the next

22 year, 1998, when the investigating officer made his

23 report on the LAJI complaints and pick up any relevant

24 details of the earlier history as we go along or, if

25 necessary, at a later stage.

 

 

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1 So can I ask you, please, to look at the P146

2 report, which we see at RNI-206-049 (displayed)?

3 A. Yes, I see that, thank you.

4 Q. Now, I don't know if you have a hard copy of your

5 statement in front of you?

6 A. I do indeed, yes.

7 Q. Excellent, because I think we are going to come to

8 a point where we simply can't have enough space on the

9 screen to look at all the documents.

10 A. That's fine. I'm happy to work from this.

11 Q. Thank you very much. As at paragraph 61 and following,

12 RNI-813-819 (displayed), just in terms of procedure

13 first of all, was it normal procedure for you to receive

14 a copy of the investigating officer's report?

15 A. Yes.

16 Q. But not, as I understand it, to have any role in the

17 drafting of it?

18 A. Absolutely not, no.

19 Q. So the first you would see of any report would be once

20 it had been finalised and dispatched?

21 A. Yes. Just to be absolutely clear, in terms of the

22 finalisation of the report, there was a -- in practical

23 terms, the investigating officer would have contact with

24 the admin person in the ICPC who was dealing with the

25 file -- in this case, Mrs Mitchell -- and if there were,

 

 

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1 for example, outstanding documents that hadn't been

2 attached to the file, that would have been requested.

3 So -- but in terms of my own personal involvement, there

4 was none.

5 Q. Thank you. In the course of his report, he makes

6 a number of comments about Rosemary Nelson, and you have

7 in turn dealt with some of them in your own statement

8 and I would like to take them in turn, please.

9 A. Yes.

10 Q. You say first of all in this paragraph, 61, that in your

11 view his assessment of Rosemary Nelson's reliability

12 went beyond normal comment. Can I ask you to explain

13 what you mean by that, please?

14 A. Yes. Well, if we could look at the relevant section

15 where --

16 Q. On reliability? It is at RNI-206-050, if we could have

17 that on the right-hand side, please (displayed)?

18 A. Thank you.

19 Q. Thank you. At the very bottom of the page.

20 A. Yes. The reliability that the investigating officer is

21 speaking about is, he relates that to the circumstances

22 in which client evidence had been prepared and

23 forwarded, and my view was basically his questioning of

24 Mrs Nelson's reliability was inappropriate.

25 Q. Can I ask, looking at the comment there, he sets out

 

 

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1 that she hasn't responded to his letters?

2 A. Yes.

3 Q. And that he tried to interview the clients?

4 A. Yes.

5 Q. And had failed in all cases?

6 A. I see that, but he then goes on to question the

7 circumstances in which client evidence was prepared and

8 forwarded. To my mind, that is a very clear indicator

9 of his view of Mrs Nelson's reliability.

10 Q. It is --

11 A. Sorry, just to be clear about that, Mrs Nelson was the

12 legal representative of her clients, obviously, and I

13 think that was inappropriate.

14 Q. What do you think he was implying there?

15 A. My reading of it was that she was in some way involved

16 in the questionable circumstances of gathering evidence.

17 Q. I see, but you would accept, would you, that the comment

18 about them not turning up for interview and the failure

19 to answer correspondence was in fact accurate?

20 A. That's factually correct, but not necessarily

21 a reflection on Mrs Nelson's reliability.

22 Q. Indeed. Now, you also say -- and this is in the same

23 part of your statement, but we have gone over -- if you

24 have got the hard copy -- to the next page, RNI-813-830

25 (displayed).

 

 

22

 

1 A. Yes.

2 Q. You think essentially he was saying he disrespected and

3 disregarded her ability as a lawyer. Again, can I just

4 help you, please: What was it about the report that

5 gave you that impression?

6 A. I think I have covered that in relation to her gathering

7 of evidence or being involved --

8 Q. It is that phrase at the bottom of RNI-206-050

9 (displayed), is it?

10 A. Yes.

11 Q. And you then make a reference to tampering with the

12 evidence. Can I take it that you are also there

13 grounding that suggestion on the same sentence at the

14 bottom of RNI-206-050?

15 A. I am, yes.

16 Q. Aren't you attaching quite a lot of significance to that

17 sentence at the bottom of RNI-206-050?

18 A. I don't believe so. I think it is very clear. I mean,

19 it is in --

20 Q. It is not explicit, is it?

21 A. It is not explicit, but it is under the heading

22 "Reliability as a witness", and when one considers

23 Mrs Nelson's professional standing, it is of importance.

24 Q. At paragraph 62, you say that there was a clear

25 inference in the section about witnesses, which begins

 

 

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1 on RNI-206-051 -- perhaps we could have that on the

2 right-hand side, please (displayed) --

3 A. Yes.

4 Q. -- that:

5 "... clearly infer that the signatures on some of

6 the statements were not genuine and that Mrs Nelson was

7 responsible for this."

8 Apart from the sentences we have looked at at the

9 bottom of RNI-206-050, where is that suggestion made in

10 the report?

11 A. I think that is towards the conclusions of the report,

12 but I may be wrong in that.

13 Q. Right, let's have look at the conclusions. I appreciate

14 you don't have this in hard copy.

15 A. Actually, I do have it. Just give me a moment and I'll

16 find it.

17 Q. It is RNI-206-054, the conclusions.

18 A. Yes, thank you. (Pause).

19 Yes, yes, at point 4 on page 14, yes:

20 "Mrs Nelson's failure to cooperate in the early

21 stages of the investigation and the failure of her

22 clients to attend cast serious doubts on their

23 commitment. At this stage, their 'evidence' remains

24 very much open to question, and the manner in which

25 statements were forwarded gives serious cause for

 

 

24

 

1 concern. I would expect a solicitor to be more

2 professional in putting her case."

3 Q. I see that passage, but what I don't see is a suggestion

4 by the investigating officer that the signatures on some

5 of the statements were not genuine?

6 A. That was my interpretation of ...

7 Q. Again, aren't you putting a very particular

8 interpretation on a much more neutral paragraph in the

9 report?

10 A. I don't think so. I think the investigating officer was

11 very clear in questioning the circumstances in which

12 evidence had been gathered by this particular solicitor.

13 Q. But he didn't say in terms, did he, that the signatures

14 were not genuine?

15 A. That's not the language that he used, no.

16 Q. It is something that you took from the text of the

17 report?

18 A. He questioned the circumstances in which they were put

19 together.

20 Q. Yes.

21 A. Yes.

22 Q. Now, in the long and complicated history of events which

23 followed, there came a moment when, after the Mulvihill

24 investigation, you produced what became known, I think,

25 as the appendix, an appendix to a statement, which

 

 

25

 

1 contained a detailed treatment and criticism of the

2 conduct of this investigation. We will look at it again

3 in more detail, but can I ask you to look, please, with

4 me now at RNI-223-330, and perhaps we can have that on

5 the right-hand side of the screen (displayed)?

6 A. Yes, I have that.

7 Q. Some of this is material which we have either just been

8 looking at, if you look, for example, at the fourth

9 bullet point on reliability?

10 A. Hm-mm.

11 Q. Do you see?

12 A. Yes, I do, yes.

13 Q. And there you highlight that the relevant box on

14 reliability had been changed very much in its terms from

15 the earlier report in July 1997 to this one we have been

16 looking at in April?

17 A. Yes.

18 Q. But above it, if we could go back to the screen, you

19 say:

20 "In the reported investigation drafted by the Chief

21 Inspector, he makes a number of assertions which

22 constitute judgments on the moral character of

23 Mrs Nelson and others."

24 Again, can I ask you, please: what parts of the

25 report did you have in mind when you made that comment?

 

 

26

 

1 A. Well, the two sections that we have just looked at, to

2 be specific.

3 Q. So you took those, did you, to be a judgment on her

4 moral character?

5 A. Yes, he was questioning her standing as a professional

6 lawyer and very clearly questioning the circumstances in

7 which she was in the business of gathering evidence and

8 putting it together.

9 Q. Well, it is certainly right, in the section we looked at

10 together, that he expressed surprise about her

11 professional conduct?

12 A. Yes.

13 Q. But there is nothing explicit, is there, to suggest that

14 she was involved in fabricating evidence or, indeed, in

15 forgery of some kind?

16 A. I'm not sure that there is any other interpretation of

17 that section.

18 Q. Well, if we look together at RNI-206-054, which is the

19 passage you were looking at earlier, on the left-hand

20 side, please (displayed). Do you have that in front of

21 you on the table?

22 A. Yes, I do, thank you. At point 4?

23 Q. Yes. You see what he says at the end is:

24 "Their 'evidence' remains very much open to question

25 and the manner in which statements were forwarded gives

 

 

27

 

1 serious cause for concern. I would expect a solicitor

2 ..."

3 Then these words:

4 "... to be more professional in putting her case."

5 A. Yes, but that can't be read out of context or in the

6 absence of the section on reliability, I would have

7 suggested.

8 Q. The final comment you make in your statement about this,

9 and the final thing I want to ask you specifically about

10 your reaction to the report and its terms, is at

11 paragraph 67, RNI-813-831. Can we have that on the

12 screen, please (displayed)? You say:

13 "After receiving the report, I brought the type of

14 language used by the Chief Inspector to the attention of

15 the Chief Constable and the Secretary of State."

16 Can you help, please: how did you draw that matter

17 to their attention?

18 A. Yes. For my part -- I'm sure we will come to it, but

19 I brought the language and the type of reporting used by

20 the investigating officer to the Chief Constable's

21 attention in a meeting at the ICPC offices on

22 1 July 1998.

23 Q. That was a point you raised then, was it?

24 A. It was, yes. The content of the report, and secondly,

25 in relation to having brought it to the attention of the

 

 

28

 

1 Secretary of State, that was done via correspondence

2 through the Chairman of the Commission to the Secretary

3 of State.

4 Q. Again, we will come to that in a minute.

5 A. Yes, thank you.

6 Q. The comments you have made about this report in your

7 statement ending at this point in paragraph 67, do you

8 think they fairly reflect the reaction that you had to

9 it at the time, when you first read it in April 1998?

10 A. Sorry, I wonder would you mind repeating the question?

11 Q. The comments you make in your statement about the

12 report.

13 A. Yes.

14 Q. Do you think they fairly reflect the reaction that you

15 had to the report when you first read it in April 1998?

16 A. Yes, in terms of appendix. Is that what you are ...?

17 Q. No.

18 A. The comments in my statement, sorry.

19 Q. Yes.

20 A. Yes. The report in or about April or May 1998, the

21 substance of which is later contained in the final

22 statement of satisfaction, which is March 1999, that

23 reflected all of the concerns that I had at that time.

24 Q. Again, we haven't been through the detail -- and we will

25 see some of it in due course -- but is it fair to say

 

 

29

 

1 that by April 1998 there was no effective working

2 relationship between you and this investigating officer?

3 A. There had been a series of difficulties, yes.

4 Q. Culminating in complaints or protests made by you,

5 including, for example, one in March 1998, where you

6 wrote to his superior, the Superintendent?

7 A. I wouldn't say there were protests or complaints. As

8 a matter of course and exercising my duty, I raised

9 a number of concerns, both to his superior officer and

10 officers and also within the ICPC over a number of

11 months. And, yes, there was a letter issued on

12 20 March 1998.

13 Q. You say in a general sense, as I understand it, that you

14 believe the comments he put in this report were put

15 there because he, the investigating officer -- and

16 I quote you -- this is paragraph 63:

17 "... personally held subjective views, preconceived

18 without testing or analysis."

19 A. Yes.

20 Q. That, I think, is specifically in the question of

21 signatures and whether they were genuine; is that right?

22 A. Yes, that's right.

23 Q. Now, did you believe that he held subjective views about

24 Rosemary Nelson and her clients in a general way?

25 A. My evidence is based on the comments that he has

 

 

30

 

1 committed to writing in his report. I can't say what

2 was in the investigating officer's mind.

3 Q. Taking the matter from this point, in other words

4 from April 1998, can I ask you to look, please, at the

5 minutes we have of the ICPC meeting which followed it,

6 which took place on 22 May that year?

7 A. Yes.

8 Q. And we can see it at RNI-222-013 (displayed).

9 A. Okay.

10 Q. And these minutes go over to RNI-222-015, and I think we

11 should go straight to that part (displayed).

12 Paragraph 7?

13 A. Yes.

14 Q. "Miss McNally gave an update on the supervised case

15 mentioned at 8.3 of the April minutes."

16 I should say, as far as I understand we haven't been

17 able to recover a copy of those minutes. They are not

18 in the file and they are not exhibited to your

19 statement, I think:

20 "She stated that she decided to issue a qualified

21 statement referring to her concerns regarding the

22 investigation of the complaint."

23 A. Yes.

24 Q. Now, standing back from that passage for a moment, at

25 this point, in May 1998, the issue of such a statement

 

 

31

 

1 was unprecedented, wasn't it?

2 A. It hadn't been done before.

3 Q. Yes, and you must have been well aware of the

4 significance, therefore, of the decision to issue such

5 a statement?

6 A. Yes, it was on that basis that I brought it to the

7 Commission meetings.

8 Q. Indeed.

9 A. Yes.

10 Q. Did you discuss it before this meeting with the

11 Chairman, Mr Donnelly?

12 A. I certainly raised my concerns with him, yes.

13 Q. You say in your statement at paragraph 73 -- and we can

14 see it at the top of RNI-813-833 (displayed) -- that:

15 "In addition to raising it at the meeting, [you] had

16 private discussions with Paul Donnelly"?

17 A. Yes.

18 Q. What was the nature of those discussions?

19 A. I can't be specific, but I would imagine that I would

20 have spoken to him about my concerns at various stages.

21 Q. You had been presented with this report --

22 A. Yes.

23 Q. -- of April 1998. You have given us in detail your

24 views of it. Presumably you informed him and, later,

25 the meeting, that you were dissatisfied with the way the

 

 

32

 

1 investigation had been conducted?

2 A. Yes, that wouldn't have been news, I suppose, because I

3 had raised my concerns at various stages.

4 Q. You had reported in earlier meetings?

5 A. I had, yes.

6 Q. And we can see the minutes, at least the minutes we

7 have, in due course, but this was not the first time

8 this had come on the agenda?

9 A. Correct.

10 Q. What was the reaction of your colleagues to that

11 statement we see there, that you decided to issue

12 a qualified statement?

13 A. The reaction was a mixed reaction. Some colleagues felt

14 it was inappropriate, others were uncomfortable, others

15 didn't have a view.

16 Q. You say in your statement at paragraph 74 that some

17 members would view the step as "outrageously

18 revolutionary"?

19 A. Yes, that's fair.

20 Q. So presumably there was a vigorous debate?

21 A. There was a debate, yes. There was discussion around

22 it; not just at this meeting, but at latter meetings.

23 Q. Can I ask you this, because the minutes are rather

24 opaque: what specifically did you mention as your

25 concerns regarding the investigation of the complaint?

 

 

33

 

1 A. I'm sure that I would have given a general indication of

2 my overall concerns without compromising the content of

3 the investigation report or otherwise.

4 Q. That's one of the things I wanted to ask you about

5 because you have referred earlier to the difficulty of

6 confidentiality as between you and other members. So

7 does it follow that you had to be rather vague and

8 general in your description of the problems?

9 A. I think I had to draw a fine line between breaching

10 confidentiality and giving a clear and informative

11 picture of what was happening to assist the Commission

12 and the Chairman.

13 Q. Now, suffice it to say it looks from the minute as

14 though, after a full discussion, the decision was made

15 to write to the Secretary of State?

16 A. Yes, that's correct.

17 Q. That, as I understand it, is a different thing,

18 a different course of action, from issuing a qualified

19 statement?

20 A. It is, yes.

21 Q. So your proposed course was not followed after

22 discussion, but instead another approach was agreed to

23 be taken?

24 A. It was agreed at that point, but then later changed, if

25 you like. Just to say, the Article 17(2) -- I'm sure

 

 

34

 

1 you have had a chance to look at the relevant

2 legislation, but that was a provision in the legislation

3 which allowed the Commission to bring matters of grave

4 concern to the attention of the Secretary of State, and

5 that was embodied as a statutory duty.

6 Q. But it was, as it were, a step down, wasn't it, compared

7 to a qualified statement?

8 A. Yes, I would accept that.

9 Q. Because you say in your statement that you backtracked?

10 A. I did. I took on board -- I suppose I made a decision

11 having taken on board all the relevant circumstances, if

12 you like.

13 Q. And again, in describing your colleagues' reaction, you

14 say that:

15 "For some of them, this was moving far too quickly

16 and they wanted to try and stall matters if possible."

17 A. I have said that, yes.

18 Q. When you say "this" was moving far too quickly, do you

19 mean the idea of the qualified statement or the letter

20 under Article 17(2)?

21 A. Both.

22 Q. Both?

23 A. Yes.

24 Q. So even the compromise proposal, which you regarded as

25 involving some backtracking, was too much too quickly

 

 

35

 

1 for some of your colleagues?

2 A. That's what I have said, yes.

3 Q. Can I ask you this question: did any of your colleagues

4 support your proposal to issue a qualified statement?

5 A. No.

6 Q. No. So you were in a minority of one with, what, five

7 or six against you?

8 A. With the exception of the Chairman, yes.

9 Q. Did he support you?

10 A. Yes.

11 Q. Now, in fact what followed this meeting, as far as one

12 can see, some weeks later, nearly a month later, was

13 a letter sent by the Chairman to the Secretary of State

14 and, in exactly the same terms, to the Chief Constable?

15 A. That's correct.

16 Q. What's rather mysterious looking at the file is what

17 happened in the intervening month. Can you help?

18 A. In what way, sorry?

19 Q. Well, you have your meeting on 22 May and you resolve

20 what to do; not what you suggested, but something else.

21 How does it come about in the end that the letter goes

22 to both the Secretary of State and the Chief Constable?

23 A. Yes, sorry. In relation to the Article 17(2)?

24 Q. Yes.

25 A. A decision was made at the following Commission meeting

 

 

36

 

1 not, in fact, to send that report, but instead to engage

2 in an investigative process to look at the overall

3 flavour and theme of complaints that had been lodged by

4 practitioners, legal practitioners in Northern Ireland

5 and to proceed in that vein. That's basically what

6 happened.

7 That was later reported on and sent to Adam Ingram,

8 to the best of my knowledge.

9 Q. Indeed. We can see the minutes in a moment, but after

10 this decision was made, the one we still have on the

11 screen --

12 A. Yes.

13 Q. -- between this point then and the next meeting on

14 19 June, no action pursuant to what had been agreed

15 there was taken; is that right?

16 A. To the best of my knowledge. I think that the qualified

17 statement that I had prepared and ready on file, that

18 was not sent, obviously. So I can't say that anything

19 more was done in the intervening period of time, no.

20 Q. This must have felt to you, this meeting, like something

21 of a rebuff?

22 A. I can certainly say that I didn't feel supported, but

23 I continued with my job. Yes, I wasn't supported.

24 Q. The very fact that you found yourself effectively on

25 your own, with the exception of the Chairman, must have

 

 

37

 

1 been rather undermining?

2 A. I think that's fair at one level, yes.

3 Q. If we look together at the next minutes, please,

4 19 June -- and they are at RNI-222-015.500 (displayed):

5 "Matters arising: 3."

6 And there was obviously a draft report, and in fact

7 it is decided not to forward that, but there would be

8 some more general analysis -- this is what you have

9 mentioned --

10 A. It is, but it is more aptly and succinctly put, I think,

11 in this ... yes.

12 Q. Turning the page, please, to RNI--222-015.501

13 (displayed):

14 "In relation to Miss McNally's qualified statement

15 on supervision ..."

16 That is on the particular cases:

17 "... it was confirmed that as this was intended to

18 be issued within the next few days, the relevant

19 authorities should be alerted."

20 It looks as if you have gone back to the original

21 proposal of issuing a qualified statement?

22 A. As opposed to a statement of dissatisfaction?

23 Q. Indeed.

24 A. Yes.

25 Q. Just help me with this please: your proposal in May had

 

 

38

 

1 been to issue a qualified statement?

2 A. Yes.

3 Q. You had been effectively voted down?

4 A. Yes.

5 Q. A month passes and the matter comes back to the agenda,

6 and it looks as though it was decided to do a more

7 general report rather than a 17(2) report, which is what

8 you had agreed in May, and your original proposal was

9 going to be issued?

10 A. That's what the minute reads, yes.

11 Q. But is that actually what happened? You see, the

12 minutes are very short and, as I say, rather opaque.

13 How was it that this complete reversal took place over

14 the month?

15 A. I am afraid I can't be any clearer.

16 Q. Did you suddenly find yourself in a thumping majority in

17 the meeting in June 1998?

18 A. No, I don't think that is the case.

19 Q. And are you able to help, then, what explained this

20 reversal?

21 A. I am afraid I can't. I can't -- the minutes aren't

22 helping me really with that. Sorry.

23 Q. You see, earlier you had said that your colleagues, or

24 some of them, were very concerned you were moving too

25 far too fast, whether in relation to the 17(2) report

 

 

39

 

1 or, still worse, one assumes, the qualified statement.

2 What I'm trying to understand from you is what made

3 the difference, and you can't help?

4 A. All I can say is that the decision not to issue

5 a statement of dissatisfaction or non-satisfaction, the

6 decision not to do that was based on taking on board the

7 views of colleagues, if you like, and it was a corporate

8 decision. Ultimately, my concerns were brought to the

9 relevant authority's attention and the subsequent course

10 of action was an agreed course of action.

11 Q. Now, the reference there, that the relevant authorities

12 should be alerted, I think takes us, doesn't it, to the

13 letter that I mentioned earlier written by the Chairman

14 to both the Secretary of State and the Chief Constable?

15 A. It does, yes.

16 Q. And I would like to look at one of those with you now,

17 please?

18 A. Okay.

19 Q. It is at RNI-106-211 (displayed). You deal with it in

20 your statement, so you have got that there in front of

21 you, at paragraph 77, at RNI-813-834 (displayed)?

22 A. Yes, thank you.

23 Q. Now, we know with the benefit of hindsight that this

24 letter had something of an explosive charge, as it

25 turned out, so I would like to look at it in a little

 

 

40

 

1 detail with you.

2 First of all, it is written by the Chairman. Did

3 you have any part in its drafting?

4 A. No.

5 Q. Were you consulted at all about its terms before it was

6 sent?

7 A. Not to the best of my knowledge, no.

8 Q. So far as its content is concerned, you see the

9 beginning of the third paragraph on the page we have on

10 the left:

11 "The circumstances of the investigation are

12 exceptional."

13 Then various grounds for that assertion are put

14 forward. Was that an understanding or a view of the

15 case that you had at the time, in June 1998?

16 A. That the circumstances were exceptional?

17 Q. Yes.

18 A. Insofar as the degree and level of outside interest and

19 the fact that the matter was in the public interest,

20 yes.

21 Q. It had a very high profile?

22 A. It did.

23 Q. There was international interest?

24 A. Yes.

25 Q. And there was NGO involvement?

 

 

41

 

1 A. Yes, that's correct.

2 Q. And do you think that those facts affected the way you

3 and your colleagues dealt with the matter?

4 A. No, it didn't affect how I dealt with the matter, but it

5 certainly was a fact to take into consideration in terms

6 of the overall context.

7 Q. It was an ever present consideration?

8 A. It was, of course, yes.

9 Q. Now, later on in the statement there are comments about

10 the investigating officer, and we see that some six

11 lines down in this same paragraph:

12 "The demeanour, behaviour and investigative approach

13 of the interviewing police officer ..."

14 Et cetera:

15 "... together with the responses of those officers

16 under question combined to ..."

17 Then these words:

18 "... fundamentally undermine the investigative

19 process."

20 Now, in that part and the remaining parts of the

21 letter there are specific references to deficiencies,

22 perceived deficiencies with the investigation. If you

23 had been asked for your view before the letter was sent,

24 would you have wanted all of your concerns and

25 criticisms to be included in this letter?

 

 

42

 

1 A. I think that probably would have been helpful, yes.

2 Q. And you say in your statement -- and it is on the screen

3 on the right in paragraph 81, RNI-813-834 (displayed) --

4 that it didn't cover your concerns?

5 A. Yes, that's right.

6 Q. But that you discussed them with the Chairman?

7 A. I had, yes.

8 Q. Was that, presumably, before the first meeting

9 in May 1998 that we looked at a little earlier?

10 A. Yes.

11 Q. Can I infer between that meeting and the time of the

12 sending of this letter?

13 A. Yes, that's correct.

14 Q. Because there are certainly references in the text,

15 aren't there, to the rather detailed criticisms that

16 eventually emerged publicly, as it were, in your

17 appendix?

18 A. Yes, the Chairman, as I think I have said, would have

19 been aware, through discussions with him, but also

20 having attended and chaired various ICPC meetings that

21 I have referred to, of a number of the concerns, yes.

22 Q. Because if we look at the next page, RNI-106-212

23 (displayed), on the left-hand side, we will see, won't

24 we, various examples set out at the bottom of the page:

25 The case where there was an attempted informal

 

 

43

 

1 resolution, the penultimate paragraph, non-attendance,

2 late notice cancellations, and then the suggestion about

3 an interview where the officer -- again, you deal with

4 it in your statement -- smelt of alcohol, the general

5 air of hostility.

6 Then turning over the page, RNI-106-213 (displayed),

7 pre-prepared statements. Again, that was one of the

8 criticisms that you had of the investigation, wasn't it?

9 A. Yes, it was the fundamental criticism, yes.

10 Q. So isn't it a fair summary to say that, although not

11 hugely detailed, some of your main criticisms of this

12 investigation were fairly reflected in this letter to

13 the Secretary of State?

14 A. I think some of them have been, yes.

15 Q. Sir, would that be a convenient moment?

16 THE CHAIRMAN: Certainly. We will break off until 25 to.

17 (11.17 am)

18 (Short break)

19 (11.35 am)

20 MR PHILLIPS: Can we have back to the screen, please, the

21 letter at RNI-106 and the second page at 212

22 (displayed)? RNI-106-212. Thank you.

23 Now, you said, I think, just before the break that

24 you didn't discuss the letter or have any part in its

25 drafting before it was sent?

 

 

44

 

1 A. I had no part in its drafting.

2 Q. Thank you. Did you discuss what might go into the

3 letter and the sort of points which might be made by the

4 Chairman, Mr Donnelly?

5 A. I didn't direct him in terms of the drafting, no. I

6 think I had been clear that I had discussed my concerns

7 with him and obviously that is reflected in the content

8 of some of the letter.

9 Q. We have seen that together, but the paragraph I want to

10 show you now is the first full paragraph of this page

11 where it says:

12 "I ..."

13 That's Mr Donnelly:

14 "... share the Commission members' belief that this

15 case is of such significance, both in terms of its

16 gravity and the exceptional circumstances surrounding

17 it, that I have a duty to, in confidence, bring the

18 matter to your attention."

19 A. Yes, I see that.

20 Q. Was that your belief?

21 A. That the matter was of gravity and exceptional

22 circumstances?

23 Q. And that he had a duty to bring it to the Secretary of

24 State and the Chief Constable's attention?

25 A. It still is my belief. It met all of the requirements

 

 

45

 

1 of the legislation, yes.

2 Q. So, again, was that a matter -- in other words, what the

3 situation required in terms of reporting to these

4 authorities -- you discussed with Mr Donnelly?

5 A. Yes.

6 Q. In the middle of this same page, if we can go down a few

7 paragraphs, please, to the one beginning:

8 "Throughout this investigation, the Commission

9 representatives had extreme difficulty in exercising

10 their statutory duty to direct and supervise the

11 Inquiry."

12 As I understand it, this is a complaint, is it, that

13 the investigating officer had difficulty in accepting

14 your authority?

15 A. Yes, that's correct.

16 Q. Again, that was a view you held at the time the letter

17 was sent?

18 A. Yes, I think I have been clear about that. It is also

19 something that I had raised both internally and to the

20 investigating officer's supervisor on a number of

21 occasions.

22 Q. But isn't this also fair: that there were other problems

23 in this investigation which were in no way the

24 responsibility of the investigating officer? To give

25 you an example: the fact that clients who had made

 

 

46

 

1 statements to the CAJ did not present themselves for

2 interview created a difficulty in the investigation,

3 didn't it?

4 A. Yes, it did.

5 Q. In fairness, were there other problems in the

6 investigation which couldn't possibly, fairly, be

7 attributed to the investigating officer?

8 A. Can you give me an example?

9 Q. I'm asking you a question.

10 A. You are asking me a question? I think the example you

11 have given in relation to non-cooperation, that is

12 a fair example.

13 Q. That had a fundamental effect on the way the

14 investigation proceeded, didn't it?

15 A. It was one factor to consider.

16 Q. Because those who were alleged to have made the remarks

17 attended for interview and gave their denials, and there

18 was, as it were, nothing in terms of interviews on the

19 other side?

20 A. Yes, that's correct, at one level, yes.

21 Q. And you had done what you could to persuade the relevant

22 people to cooperate, but they had failed to do so?

23 A. There was nothing -- if your point is could the

24 investigating officer have remedied that, there was

25 nothing he could do. I don't think at any stage I have

 

 

47

 

1 been unfair and suggested that he could have.

2 Q. If we look at the top of the same page, you see there

3 the sentence -- which is an extremely long one:

4 "In spite of numerous efforts on the part of the

5 Commission representatives to challenge and redress the

6 situation, the investigation has been obstructed and

7 obscured to an extent that leads us to conclude that the

8 final outcome is irretrievably flawed."

9 In terms of the obstruction and obscuration, who was

10 responsible for that in your view?

11 A. In part the investigating officer, in part those who

12 were being interviewed.

13 Q. Those are the sort of examples you refer to on the

14 previous page: demeanour, behaviour of the investigating

15 officer and responses of those officers under question?

16 A. Yes, that's correct.

17 Q. Now, you say that it leads you to conclude -- or

18 Mr Donnelly says it leads "us" to conclude that the

19 final outcome is irretrievably flawed. What, then,

20 given that the investigation had been, as it were,

21 fatally holed below the water line, was the point of

22 raising all of these matters in relation to a dead

23 investigation with the Secretary of State and the

24 Chief Constable?

25 A. Because they were matters of gravity and of public

 

 

48

 

1 interest.

2 Q. Because of their more general impact; is that right?

3 A. Yes, they had obvious immediate impact in terms of the

4 substantive complaint that we are looking at, or series

5 of complaints, but they had an overarching impact in

6 terms of general procedure and application.

7 Q. And presumably some of the more general significance of

8 these comments and the fact, indeed, that the letter was

9 sent arise from what we were discussing earlier, namely

10 that this was a situation without precedent?

11 A. Without precedent in terms of the international

12 interest; is that what you mean?

13 Q. No, I meant that this was a situation in which the

14 Commission had not found itself before?

15 A. Sorry, yes, I misunderstood you. Yes, that's correct.

16 Q. It was without precedent for the Commission?

17 A. Yes.

18 Q. Was it also -- picking up the point you have just

19 made -- unprecedented as a case in terms of the

20 international and NGO interest?

21 A. Yes, that's right.

22 Q. And in terms of its political importance?

23 A. Political with a capital or a small 'p'?

24 Q. Whichever you like.

25 A. I think in the round -- and I'm jumping forward now

 

 

49

 

1 somewhat, but in the round and if we look at it in terms

2 of the eventual outcome, all the matters of concern that

3 were raised by me and through the Commission's offices,

4 if you like, were embodied in practical changes to

5 practice and procedure in terms of policing and the

6 complaints process itself.

7 Q. Yes, you touch on this in your statement, looking all

8 the way forward to the Mulvihill review, where, as you

9 see it at any rate, a large number of the points of

10 concern were dealt with and addressed in the form of

11 recommendations by Commander Mulvihill?

12 A. Not just in terms of recommendations, but that were

13 taken forward by a working group set up under the

14 auspices of both the ICPC, policing and other interested

15 parties to the lead-in to the Ombudsman's office. So it

16 wasn't just a case of recommendations by

17 Commander Mulvihill, but in fact they were translated

18 into practical changes to the practice and procedure.

19 Q. Of the Commission?

20 A. Of the Commission, of police and other relevant parties.

21 Q. Thank you. Now, can we look at the reaction and turn

22 together to RNI-226-034 (displayed)?

23 I would like to have both pages of this letter on

24 the screen, please, so RNI-226-035 on the right-hand

25 side (displayed).

 

 

50

 

1 It is dated 24 June 1998 and it is a letter from the

2 Chief Constable because, as we see, he also received the

3 same letter -- I haven't taken you to it, but it was in

4 exactly the same terms -- and gave this response.

5 Did you see this letter upon its receipt at the

6 Commission?

7 A. No, I didn't. To whom is it addressed?

8 Q. I think it was addressed to the Deputy Chairman, yes, in

9 the absence of the Chairman.

10 A. No, I wouldn't have seen that letter.

11 Q. When did you first become aware of its contents?

12 A. This is from memory, I would have been consulted by the

13 Chairman of the Commission, but I can't say on which

14 date. I mean, ultimately there was a meeting with

15 Chief Constable Flanagan.

16 Q. There was a meeting, as you tell us in your statement,

17 on 1 July?

18 A. Yes, that's right.

19 Q. But I assume that between the time of receipt of this

20 letter and that meeting you had seen the letter and had

21 a discussion about it with the Chairman?

22 A. That is helpful, yes, that's correct.

23 Q. Thank you. It is obvious, isn't it, in very brief

24 summary, that the Chief Constable was very displeased by

25 what he had read in the Chairman's letter?

 

 

51

 

1 A. That seems to be the tone of the correspondence, yes.

2 Q. He was particularly concerned by the suggestion that

3 there was going to be correspondence sent to Colin Duffy

4 and to Rosemary Nelson -- this is the third paragraph --

5 in any event indicating that the Commission would not be

6 issuing a statement indicating their satisfaction with

7 the conduct of the investigation?

8 A. Yes, I can see that.

9 Q. So from your memory, can you help: was that then the

10 plan at this stage, that on that Friday, or the end

11 of June, those letters would issue to the two

12 individuals named there, Rosemary Nelson and

13 Colin Duffy?

14 A. Yes, I believe that is the case. I think that is

15 corroborated by the contemporaneous minutes on the

16 files, yes.

17 Q. In terms of the LAJI complaint, can I just ask you this

18 question because this puzzled me: what role did Mr Duffy

19 have in that complaint?

20 A. What role?

21 Q. Hm-mm.

22 A. I'm not sure that he had any role.

23 Q. No.

24 A. No.

25 Q. The question of a statement of dissatisfaction -- it is

 

 

52

 

1 put slightly differently there -- was a question in

2 relation to the LAJI case, was it not?

3 A. I'm sorry, you have lost me.

4 Q. We have just looked in great detail at minutes of

5 meetings in which the discussion took place as to

6 whether to issue a certificate saying that you were not

7 satisfied with the investigation of complaints.

8 A. Yes.

9 Q. Those were the LAJI complaints, were they not?

10 A. Yes.

11 Q. What role did Mr Duffy have in the LAJI complaints?

12 A. Mr Duffy didn't have any role in the LAJI complaints.

13 Q. No. So can you help me with this: What was the purpose

14 of writing to both Mrs Nelson and Mr Duffy in relation

15 to non-satisfaction? He wasn't a complainant in the

16 LAJI complaint, was he?

17 A. No, he wasn't. Perhaps you could help me with --

18 referring me to some of the ICPC minutes. That might

19 help me just in terms --

20 Q. I'm not sure it will, I am afraid.

21 A. Okay.

22 Q. Were you also intending to issue a statement of

23 non-satisfaction in relation to the Duffy complaints

24 because it is not something that emerges --

25 A. Sorry, I think that you will recall that the LAJI

 

 

53

 

1 complaints and the Duffy, if we put it like that, part

2 of the complaint were branched or umbrella'd together I

3 think in or about October or November 1997. Would that

4 be correct?

5 If you bear with me for a second, I'll try and ...

6 Q. Can I help you with this? There was a separate report on

7 the Duffy complaints in fact written by an

8 assistant chief constable with the assistance of P146,

9 but that was a different report.

10 A. Yes. Some of the -- some of my concerns related

11 specifically to the conduct of officers during the

12 investigation of the Duffy limb, if I can put it like

13 that.

14 Q. So in other words, the intention was that the statement

15 of dissatisfaction, if I can put it that way, would

16 cover all of those complaints; is that right?

17 A. To the best of my knowledge, yes.

18 Q. And so in terms of the relevant complainants, there

19 would be LAJI, Rosemary Nelson and Colin Duffy; is that

20 right?

21 A. As I have said -- and I do not have the benefit of the

22 contemporaneous note, but they were umbrella'd together.

23 I think it was in or about October/November 1997.

24 Q. That's right, absolutely right. But as I understood it,

25 the investigation report -- because all your comments

 

 

54

 

1 that we have been looking at so far have related to

2 P146's report in relation to the LAJI case. Do you

3 remember? We went through all the various criticisms

4 you had of that?

5 A. Yes, that's right.

6 Q. Are you saying that the concerns you had about the

7 Duffy/Nelson complaint investigation were encompassed

8 within the general dissatisfaction?

9 A. Well, you moved me forward to the correspondence of

10 Chairman Donnelly, which dealt with both aspects and now

11 we are looking at a follow-up letter.

12 Q. Thank you. Now, so far as the points that are made in

13 the letter are concerned, was it clear to you when you

14 heard about the letter, when you saw the letter and

15 discussed it with the Chairman, that this issue had now

16 taken on very considerable importance?

17 A. It always had considerable importance, but obviously the

18 Chief Constable is now expressing an interest in the

19 matter.

20 Q. And you have heard, presumably, that not only was he

21 very exercised about it but so was the NIO?

22 A. No, I wasn't aware of that.

23 Q. When were you first aware of that?

24 A. Of the NIO?

25 Q. Yes.

 

 

55

 

1 A. Do you mean by that the Secretary of State?

2 Q. You see there in the third paragraph there is

3 a reference to an official at the NIO? What I'm asking

4 you is when were you first aware that the NIO were

5 concerned about these developments?

6 A. It must have been some time around then.

7 Q. Yes.

8 A. Yes.

9 Q. So you found yourself very rapidly, didn't you, right at

10 the centre of a rather hot political potato.

11 A. That is your interpretation.

12 Q. That there were people at the very top of the two

13 organisations, the RUC and the NIO, trying to manage

14 what the Commission was wanting to do and how it would

15 be presented to the complainants and, indeed, the

16 public?

17 A. I did not have the impression that I was being managed

18 at any stage at that time. It is certainly fair to say

19 that with the level of interest expressed by and the

20 request for a meeting by the Chief Constable, there was

21 certainly perhaps a more immediate importance attached

22 to what was happening, effectively. But at no stage did

23 I feel I was being managed. That wasn't my impression.

24 I was still doing my job and continued to do it.

25 Q. In this letter on the left-hand side in the third

 

 

56

 

1 paragraph, the Chief Constable says he would be

2 astounded if "this" -- that is the issuing of the

3 letters:

4 "... should happen before my meeting with the

5 Chairman."

6 A. Yes, I see that.

7 Q. And you deal in your statement with the point made by

8 him at the subsequent meeting that his shock at hearing

9 what was proposed was due to the fact that he, as

10 Chief Constable, had not been aware of these events up

11 to this point?

12 A. That was his position, although, as I have said in my

13 statement, the correspondence to his ACC delivered on

14 20 March 1997 had been sent -- he stated that that

15 wasn't brought to his attention.

16 Q. So that was your letter to the Superintendent of

17 20 March?

18 A. It was cc'd to the ACC.

19 Q. Copied to him?

20 A. Yes.

21 Q. But also to the investigating officer, wasn't it?

22 A. That's correct, yes.

23 Q. But given the potential ramifications for the force of

24 what was proposed, and if he genuinely didn't know about

25 it, that sense of shock and dismay was entirely

 

 

57

 

1 understandable, wasn't it?

2 A. I do not have any view on that, really.

3 Q. Can we look at your notes of the meeting, please, at

4 RNI-202-173.500 (displayed)?

5 A. Yes.

6 Q. Can I ask you first of all, did you make them during the

7 meeting or afterwards?

8 A. They haven't come up on the screen yet. I will have to

9 answer your question afterwards.

10 Q. They are at RNI-202-173.500 (displayed).

11 I don't think they are on the system.

12 A. I will find my hard copy.

13 Q. I am afraid everybody else will just have to be patient.

14 If you can look at them and then you and I can have

15 a discussion about them until the system resolves

16 itself.

17 A. Okay.

18 Q. Have you got them there?

19 A. Not yet. (Pause)

20 Yes, I do.

21 Q. Thank you. So can I just ask you, did you make them

22 during the meeting?

23 A. After the meeting.

24 Q. After the meeting?

25 A. Yes. I think I have made a note of the date and the

 

 

58

 

1 duration and time of the meeting.

2 Q. Yes, at the top?

3 A. Yes, and I have signed it at the bottom, page 3, and

4 dated it 1/7/98.

5 Q. Thank you. What, as far as you were aware, was the

6 purpose of the meeting?

7 A. The Chief Constable had called the meeting to speak with

8 myself and Chairman Donnelly in relation to the

9 complaints, effectively.

10 Q. And was it clear to you before the meeting began what

11 his line was going to be?

12 A. I had no idea what his line was going to be.

13 Q. Who was present?

14 A. Myself, Chairman Donnelly, the Chief Constable and the

15 Chief Constable's legal adviser. I'm not sure if I can

16 say the name, but he was present as well.

17 Q. Can I just ask you to remind yourself of paragraph 82 of

18 your statement, which is RNI-813-834 (displayed)?

19 A. Yes, yes, I referred to Jennifer Mitchell and

20 Brian McClelland in there as well.

21 Q. Yes, and then you say:

22 "Paul Donnelly and Chief Superintendent P157"?

23 A. Yes, that is who I was referring to.

24 Q. You are sure that all those people were present?

25 A. To the best of my knowledge.

 

 

59

 

1 Q. There is no note or list of attendees in your notes, is

2 there?

3 A. No, there isn't.

4 Q. Now, can I ask you again for your comment about the

5 meeting which went on, I think, for about an hour? What

6 was the atmosphere like?

7 A. It is fair to say the atmosphere was tense; it wasn't

8 a comfortable meeting, if I can put it like that. It

9 was a business meeting, it was a formal meeting.

10 Q. You were at that stage a barrister of some four years

11 call?

12 A. Well, I wasn't there in my capacity as a barrister. I

13 was there in my capacity as a Commission member.

14 Q. And you were a Commission member of about a year's

15 experience?

16 A. About a year and a half.

17 Q. It must have been a somewhat daunting thing, surely, to

18 be present at a meeting with the Chief Constable and all

19 these other characters dealing with a very difficult

20 issue?

21 A. I'm not sure I considered it daunting. In fairness, I

22 had to that point dealt with a number of perhaps more

23 daunting experiences at the bar in terms of presentation

24 of cases, et cetera. But, as I said, it was a tense

25 meeting.

 

 

60

 

1 Q. Had you met the Chief Constable before?

2 A. To the best of my knowledge, no.

3 Q. If we look at the notes, one of the things that was

4 recorded by you was that the Chief Constable -- this is

5 paragraph 5, for everybody else's note:

6 "... proceeded to read aloud an internal report

7 submitted by the investigating officer to the

8 Superintendent but not [underlined] -- is that shown?

9 A. Sorry, my writing is not terribly clear:

10 "... not shown previously to me."

11 I think the 's' is slightly cut off there.

12 Q. What happened? Did he solemnly read it out?

13 A. He referred to sections of it from memory. He held it

14 in his possession and referred to sections of it.

15 Q. That is a document dated 2 April, but had you ever seen

16 it before?

17 A. No, it is an internal document.

18 Q. And it was the officer's response, wasn't it, to the

19 matters you had raised with his superior officer

20 in March 1998?

21 A. That appears to be the case, yes.

22 Q. And perhaps we can put that on the screen, please, just

23 to show where it is and that the screen is working. It

24 is RNI-202-147 (displayed) and it goes on, doesn't it,

25 to, I think, RNI-202-150 (displayed)?

 

 

61

 

1 Effectively, he gave his own side, or his own

2 account of the various points that you had made to the

3 Superintendent, effectively in answer to your letter of

4 20 March?

5 A. That's right, yes.

6 Q. Now, just going back to your notes, please, and working

7 our way through it, if you look at paragraph 3, the

8 first thing you record him as saying is essentially that

9 the investigation was not at an end?

10 A. The Chief Constable --

11 THE CHAIRMAN: Could we have paragraph 3 on the screen?

12 MR PHILLIPS: The trouble is, sir, that this is where there

13 is a technical hitch. We could do, but I think we would

14 have to wait, and I would prefer, if you don't mind, to

15 keep going and by our questions and answers I hope you

16 will all see what I'm talking about.

17 A. Might it be helpful to read out the content?

18 MR PHILLIPS: Shall I do that?

19 A. Go ahead.

20 MR PHILLIPS: "He considered the investigation had not

21 [underlined] been concluded because of the issues

22 arising and that it was not [underlined] irreparably

23 damaged."

24 Is that correct?

25 A. Yes, and I think the last sentence is important well.

 

 

62

 

1 Q. "... stated he was formally withdrawing 'completion' of

2 investigation."

3 A. Yes.

4 Q. So the first point he makes is this is not at an end, it

5 is not damned or irretrievably flawed:

6 "I do not accept that we have come to an end of the

7 investigation."

8 A. That was his view. But in order to reach that view he

9 had to formally withdraw completion, which is

10 a certificate of completion, which is attached

11 ordinarily to each -- this is very long-winded -- each

12 investigating officer's final report to conclude that it

13 is completed, if you like. So by withdrawing that

14 certificate of completion, as proposed, it opened the

15 door, so to speak, for further investigation and

16 reinvestigation.

17 Q. So that was, as it were, a technical manoeuvre in order

18 to keep the thing open?

19 A. I think that is a good way of putting it, yes.

20 Q. And that in turn meant, didn't it, that there could be

21 no statement of satisfaction or dissatisfaction because

22 you hadn't reached the end of the investigation?

23 A. At that point, yes.

24 Q. So in that way --

25 SIR ANTHONY BURDEN: Sorry, Miss McNally. However, when the

 

 

63

 

1 officer's report was submitted, as far as you were

2 concerned, his intention was to conclude the report at

3 that stage?

4 A. Yes, that's correct.

5 SIR ANTHONY BURDEN: And the certificate of completion was

6 attached?

7 A. That's absolutely correct.

8 SIR ANTHONY BURDEN: Thank you very much.

9 MR PHILLIPS: Then his next proposal at 4 and, again, I'll

10 read it out:

11 "Proposal that an external officer be brought in to

12 take 'further investigative steps' at the highest level

13 under my ..."

14 That is your:

15 "... supervision to deal with (i) allegations of the

16 complaints; (ii) where there have been attempts to

17 subvert the investigation."

18 A. Yes:

19 "... whether there have been attempts to subvert the

20 investigation."

21 Q. Thank you. So the investigation is still open and this

22 is what we are going to do about it: we are going to

23 bring in somebody from outside the force?

24 A. That was his proposal, yes.

25 Q. And that person was going to be at a high level and he

 

 

64

 

1 was going to work under your supervision?

2 A. That was the proposal, yes.

3 Q. Now, moving on down, there was obviously some discussion

4 about supervision investigation; in other words, how

5 would the matter be characterised. Is that right? At

6 paragraph 5, do you see that:

7 "He queried that relationship between

8 supervision/investigation"?

9 A. That referred to the existing, if you like, or

10 pre-existing investigation because I go on to note that

11 the Chief Constable referred to matters that basically

12 should have been brought to his attention at that point

13 the 20 March letter was raised.

14 Q. So this was where the discussion took place in the

15 meeting, is it, as to whether he knew anything about it

16 before and his suggestion that he had never been

17 informed about the problems up to the point where he

18 received the Chairman's letter?

19 A. That's correct. That is what my note records, yes.

20 Q. And that is the point in your note where he referred to

21 the investigating officer's memorandum of response?

22 A. Yes.

23 Q. And turning the page, you say:

24 "I stress that the conclusion I had reached involved

25 not only the conduct of the investigating officer (s)

 

 

65

 

1 but in addition the conduct and demeanour of RUC

2 officers ..."

3 Is that "variously"?

4 A. Yes.

5 Q. "I cited the examples of drink, delay, evasiveness,

6 hostility and the general observation of lack of

7 interest, that their time was being wasted. He said he

8 took a serious view of these matters."

9 A. Yes.

10 Q. So just to bring some of this together, as I understand

11 it, what he said in the meeting was that he hadn't been

12 informed about the matters. He should have been

13 informed about them and he took a very serious view, or

14 a serious view, of those matters?

15 A. Well, I think we said if they were happening, that he

16 took a serious view of them.

17 Q. I see. In other words, if this was going on, then I

18 would take a very serious view of it?

19 A. Yes, in fairness to him, yes.

20 Q. Yes. Did it follow from that that his position was that

21 if he had been made aware of these matters, he would

22 have acted upon them and taken action earlier?

23 A. No, that's not my recollection.

24 Q. You then refer in your note, the next paragraph, 6:

25 "I also reaffirmed the international interest in

 

 

66

 

1 these particularly serious allegations. He ..."

2 The Chief Constable I think that is:

3 "... did not comment."

4 A. Yes, that's right.

5 Q. So I get the impression -- tell me if this is right or

6 not -- at this meeting the principal speakers are you

7 and the Chief Constable?

8 A. That's correct, yes.

9 Q. Then you say:

10 "I did feel at one stage that he was attempting to

11 suggest that my supervision of ..."

12 Is that "events"?

13 A. Yes:

14 "... was being called into question."

15 Q. "I challenged him on this point and told him I took

16 umbrage with this suggestion. He went to great lengths

17 to assure me that he respected my efforts and that his

18 comments were meant to be complimentary. I told him

19 that I would give appropriate consideration to his

20 proposal and would let him know before the end of today.

21 I also stated that if his proposal were to be accepted,

22 it would be necessary at this stage to inform all

23 interested parties that 'due to ICPC dissatisfaction' to

24 date --

25 A. Yes.

 

 

67

 

1 Q. -- request for outside IO [investigating officer] --"

2 Then can you help with those words?

3 A. Yes:

4 "Request for outside investigating officer and try

5 to encourage -- I think it should read "full

6 cooperation", but again, the ink has not been copied

7 there.

8 Q. So it was left at the end of the meeting, was it, that

9 you would consider his proposal, namely to bring in an

10 external officer under your supervision to investigate

11 the matters we have been through?

12 A. Yes, to reinvestigate and --

13 Q. Yes.

14 A. And I did want to take some time to consider that.

15 Q. Yes, because it was a very serious stage in the process?

16 A. It was, absolutely, yes.

17 Q. So far as the experiences that you had had in the

18 investigations to this point, did you consider whether

19 it was appropriate for you to continue as supervisor?

20 A. It didn't enter my mind that I wouldn't continue at any

21 stage, no.

22 Q. There was a suggestion at some stage -- and I don't want

23 to get into the detail of this -- that the Commission

24 should or was, in fact, the complainant in this next

25 stage, which would effectively have made you personally

 

 

68

 

1 the complainant, i.e. the complainant about the

2 investigation.

3 Now, as I understand it, that was a suggestion that

4 was batted away?

5 A. And quite rightly so.

6 Q. But would that have made you uncomfortable?

7 A. If I was a complainant, it would not have been

8 appropriate to exercise my duty as a supervising member.

9 Q. Indeed. So that would have effectively sidelined you as

10 a supervising member for the rest of the process,

11 wouldn't it?

12 A. Yes, but that in fact was not the case.

13 Q. Do you believe that that was why the proposal was made?

14 A. Now that you are asking me, it is certainly one

15 interpretation.

16 Q. Just before we look at what happened in terms of

17 accepting or otherwise the proposal -- we are now at

18 1 July 1998 and things have come to this state, meetings

19 of this kind are going on, in fact we know there are all

20 sorts of other meetings and urgent discussions were

21 taking place. Can I ask you this: do you think that

22 matters would have got to this stage if this

23 investigating officer had been supervised by another

24 member of the Commission?

25 A. I can't answer that question.

 

 

69

 

1 Q. Do you think that at the heart of what became these huge

2 problems was a simple clash of personalities between you

3 and him?

4 A. No, I don't.

5 Q. You think that the problem went wider than that?

6 A. This, for me, was not a personal problem; this was

7 a procedural problem. I think in terms of my track

8 record, there were many investigating officers with whom

9 I had worked previously and subsequently who had

10 conducted thorough and sufficient investigations which I

11 was happy to sign off on, if you like. This did not

12 happen in this case.

13 Q. So far as the position at the end of the meeting was

14 concerned -- we went through the passage together -- you

15 say that you would let him know one way or another

16 before the end of the day.

17 Now, I don't know whether the notes have now

18 appeared magically up -- they have? Right. Can we look

19 at that then on the screen, please, RNI-202-173.502 at

20 the top (displayed):

21 "I told him I would give appropriate consideration

22 to his proposal and would let him know before the end of

23 today."

24 Did you feel any pressure in coming to a decision

25 one way or another on that proposal?

 

 

70

 

1 A. No, I didn't feel pressurised. I certainly that I had

2 a duty to respond and respond appropriately. But no, I

3 didn't feel pressurised.

4 Q. Who did you discuss the situation with before reaching

5 your conclusion?

6 A. I imagine I discussed it with the Chairman.

7 Q. Any specific recollection of that discussion?

8 A. I don't. I do think that he may have contacted the

9 Chief Constable directly by telephone later that

10 afternoon, but I can't be completely sure about that.

11 I know that I sent a letter dated the following --

12 2 July, which was the following day. I mean --

13 Q. Confirming your agreement?

14 A. Yes. Just on that, I mean, obviously, to use your

15 terminology, the kind of main participants in that

16 meeting may well have been myself and the

17 Chief Constable, but this wasn't just a matter between

18 he and I; this was a corporate matter, if you like,

19 between the two organisations, as well as in terms of

20 looking at what further steps might be taken for the

21 particular complaint.

22 Q. Indeed. It was a matter of great importance in terms of

23 the relationship between the Commission and the RUC

24 going forward from this point, wasn't it?

25 A. Yes, that was one of my considerations in reaching my

 

 

71

 

1 determination at that point, yes.

2 Q. We have seen from the notes what the Chief Constable's

3 proposal was?

4 A. Yes.

5 Q. Was there, in fact, an alternative?

6 A. Proposed by him?

7 Q. No, was there an alternative to that proposal he had put

8 forward?

9 A. There wasn't an alternative that I had considered.

10 I mean, one option would have been not to run with that

11 and go ahead and issue a statement and disregard

12 a pragmatic approach, if you like. That could have been

13 done, but ultimately that wasn't done.

14 Q. If you had decided to do that, would you have taken your

15 colleagues on the Commission with you?

16 A. I'm not sure what you mean.

17 Q. Would they have supported that alternative strategy?

18 A. It was never discussed with them.

19 Q. No. Because as I understand it from your statement,

20 some, at least, of the difficulties that you encountered

21 were not difficulties experienced, as far as you were

22 aware, by your colleagues?

23 A. Yes, I think I have made that clear in my statement, but

24 I can only speak for myself and my own experiences when

25 I brought matters to the attention of various Commission

 

 

72

 

1 meetings, there wasn't a general consensus that other

2 Commission members were facing difficulties in the same

3 way that I was, if you like, not just -- can I just say,

4 not just in relation to this complaint but, as I've said

5 in my statement, in relation to other matters I was

6 supervising over a period of time.

7 Q. Can I just ask you this question: Were you aware that

8 any of your colleagues had experienced difficulties with

9 this particular investigating officer?

10 A. Not from memory. I think -- there was certainly mention

11 in some of the Commission minutes of the difficulties

12 with other officers, but I can't say with certainty

13 that -- I don't think so.

14 Q. Looking at the position of the other members briefly,

15 can we turn together to RNI-223-023 (displayed)?

16 A. Yes.

17 Q. This is a memorandum sent by the Chairman, the other

18 page perhaps we can have on the right-hand side,

19 RNI-223-024 (displayed)?

20 A. Yes, I have it on hard copy.

21 Q. Thank you very much. This is his way of updating them

22 about the events that had followed in June, July and

23 presumably in August by this stage, because it is the

24 13th of that month, and the purpose of it presumably was

25 to let them know what was happening within the

 

 

73

 

1 constraints imposed by confidentiality?

2 A. Yes, that's correct.

3 Q. Can I ask you to look at a specific part of it, at

4 RNI-223-024 (displayed), the fourth bullet point? I

5 think this is touching on the matter we discussed

6 earlier:

7 "Because Commission staff and a member would be

8 witnesses in this second investigation, should it be

9 recommended, it would be supervised by a person

10 temporarily appointed by the Secretary of State to

11 membership."

12 Was that all part of the "Commission as complainant"

13 plan?

14 A. I think it is helpful actually to look at this because

15 part of the terms of reference that were agreed with

16 Commander Mulvihill allowed him the facility, if he felt

17 there were grounds or reasons, to issue a fresh or

18 independent investigation of the original complaints

19 investigation. Then that would have taken it into

20 a different ball game completely, and if that were to

21 happen, quite rightly, I would have been effectively

22 a witness or complainant.

23 So that was a possible but hypothetical situation

24 and that is what this bullet point speaks to.

25 Q. Thank you very much.

 

 

74

 

1 At this time, July/August 1998, was concern about

2 what was happening expressed to you by your colleagues?

3 A. I do not have any recollection of that.

4 Q. You don't?

5 A. No.

6 Q. So you think this was sent out then purely for their

7 information?

8 A. Well, I received a copy; I think everyone else did. It

9 was really an update, if you like.

10 I mean, my business was to continue with -- at that

11 stage I think I had liaised with Commander Mulvihill

12 and -- and also to continue with my other workload.

13 Q. That's absolutely right. You decided, didn't you, to

14 accept the proposal -- and we can see your letter of

15 2 July at RNI-202-173 (displayed)?

16 A. Yes.

17 Q. And you refer to the meeting in the first line, and you

18 say:

19 "As I understand, you have already been told ..."

20 That is probably a reference to the telephone

21 conversation you mentioned?

22 A. From memory, I think that is how it went:

23 Q. "... considered your proposals in response to the

24 unsatisfactory investigation of these complaints. While

25 my serious concerns and dissatisfaction to date will in

 

 

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1 any circumstances be recorded in any final statement

2 which I issue in respect of this investigation, I'm

3 prepared to delay this pending reinvestigation by an

4 officer from an outside police service under my

5 continued supervision and direction."

6 Then you repeat the point, which again you had

7 canvassed in the meeting, I think, that you would be

8 writing to the interested parties informing them of what

9 was going on. And we can see the draft of that -- I

10 think it is a draft -- on the next page, RNI-202-182

11 (displayed). Can we have that on the left-hand side,

12 please (displayed)? We have lost the other one. Can we

13 have RNI-202-175 on the left then, please (displayed)?

14 Thank you very much.

15 So in the second paragraph, you were giving notice,

16 or confirming rather, weren't you, that the fact that

17 there was going to be this reinvestigation was simply

18 going to delay the issue of your note of serious

19 concerns and dissatisfaction; it wasn't going to

20 remove it?

21 A. Absolutely not. I mean, it is in black and white, it is

22 very clear.

23 Q. Now, you met Commander Mulvihill in due course -- I

24 don't want to go into all the documents about that. It

25 is completely unnecessary.

 

 

76

 

1 A. That's fine.

2 Q. You agreed with his appointment. There was, I think, an

3 intervention at one point by Mr Lynch at this stage, not

4 before, and I think you had a visit from him, didn't

5 you?

6 A. Yes, that's correct.

7 Q. He attended some of the interviews?

8 A. Yes, that's correct.

9 Q. It looks as though there may have been a little bit of a

10 disagreement between you, him and, indeed, possibly

11 Commander Mulvihill about his role?

12 A. Well, I think I was clear about his role. I think in

13 fairness to Mr Lynch, perhaps it was a misunderstanding

14 of the process and the complaints process and what he

15 could and couldn't do during interviews and in terms of

16 assisting.

17 Q. I mean, he even perhaps, though technically, was the

18 complainant in the LAJI complaints, wasn't he?

19 A. Technically, yes, I think we dealt with that.

20 Q. So in terms of your procedures, was it right for him to

21 be at interviews with those concerned who were facing

22 the complaints, for example?

23 A. That was certainly a joint decision in terms of how to

24 progress the investigation between myself and

25 Commander Mulvihill. It was felt that it was

 

 

77

 

1 appropriate to afford Mr Lynch the opportunity to

2 attend.

3 Q. Now, so far as the Mulvihill investigation was

4 concerned, you also supervised that investigation,

5 didn't you?

6 A. I did.

7 Q. And you tell us in detail in your statement how that

8 worked in practice. Can I ask you about a specific

9 matter? You say in paragraph 121 at RNI-813-844

10 (displayed) that he and his team had a different

11 approach to interviews, which was both more thorough and

12 more straightforward?

13 A. Yes.

14 Q. Is that based on your sitting in on interviews of that

15 kind?

16 A. That is based on my observations, yes.

17 Q. I understand the thorough part of it, if I can put it

18 that way. What about the "more straightforward"? What

19 do you mean by that?

20 A. I think if you take into consideration my comments in

21 relation to the previous investigating officer's

22 approach to some interviews, that puts it in context.

23 Q. So you think that by contrast that approach was less

24 straightforward; is that right?

25 A. Yes, I think so.

 

 

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1 Q. It was less probing?

2 A. I think that is fair, and I think Commander Mulvihill

3 wouldn't resile from that proposition.

4 Q. One of the things we know you took exception to in the

5 P146 investigation was the service of pre-prepared

6 statements?

7 A. That's correct.

8 Q. By officers in cases. Was that a feature of the

9 Mulvihill team's interviews?

10 A. In terms of the statements having been prepared?

11 Q. Yes.

12 A. Well, they had been previously prepared for the previous

13 investigation we were getting, but Commander Mulvihill

14 and his team had a different approach in terms of

15 pursuing pertinent points and lines of enquiry, if

16 you like.

17 Q. Tell me if this is right: they would take the previous

18 material, including a pre-prepared statement submitted

19 to P146, and nonetheless proceed with the interview?

20 A. That's fair.

21 Q. And explore all the matters relating to the complaint,

22 in your view, thoroughly?

23 A. As opposed to allowing an interviewed officer to refer

24 to his pre-prepared statement and say nothing more, yes.

25 Q. Because looking at that point -- and we may come back to

 

 

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1 look at a few more documents about it, but looking at

2 the issue in general, presumably the thing about the

3 pre-prepared statement was this: if the interviewing or

4 investigating officer nevertheless carried on to ask all

5 the relevant questions in the interview whether or not

6 he was using the pre-prepared statement, it would still

7 be a thorough and searching interview, wouldn't it?

8 A. Well, I think you have to separate out the functioning

9 of the pre-prepared statements from what happens in

10 terms of process during interview.

11 As you know, the preparation of pre-prepared

12 statements, that practice, was eventually amended, if

13 you like, to allow for a more flowing and more fluent

14 interview with an interviewed officer. But in terms of

15 the second limb of your question, I can think of

16 examples where one DCI was interviewed having prepared

17 a statement of that nature, but the interview was

18 actually probing and reached a conclusion on my part.

19 Q. And in terms of the satisfactory investigation, I mean

20 the key thing, surely, is to make sure that the right

21 questions are asked, the right issues are covered,

22 during the course of the interview?

23 A. That's one aspect, but in order to facilitate that, the

24 process has to be -- methodology is as important in

25 advance of the interview as it is during the interview.

 

 

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1 So if, for example, an officer has been asked to

2 prepare a statement in advance, that basically leaves

3 any ensuing interview the potential to be fundamentally

4 flawed.

5 Q. Even if the interview is itself probing and searching?

6 A. I said it leaves it with the potential to be flawed.

7 Q. Now, in your statement you tell us at RNI 813-839,

8 paragraph 104 (displayed), that the officers, or most of

9 them, you say:

10 "... were compliant with Commander Mulvihill in

11 comparison to my own experiences of meeting them."

12 So there was a change in attitude that you observed.

13 Is that fair?

14 A. With the exception of one officer, yes, there was

15 a marked change in attitude and approach.

16 Q. And you deal there with Detective Constable Walker and

17 you say he refused to have a PACE interview?

18 A. Yes, from memory.

19 Q. If we are going to look at this in terms of his legal

20 position, that was unexceptional, wasn't it, his

21 refusal?

22 A. From a legal position, yes.

23 Q. Yes. I mean, I don't want to look at this or get

24 distracted by it, but in Commander Mulvihill's report,

25 when he deals with this issue, he says this is something

 

 

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1 that was within his rights, but it was nevertheless

2 disappointing?

3 A. Correct.

4 Q. But no more than that?

5 A. Correct.

6 Q. Thank you. Now, can I take it from the comments you

7 make in your statement that your working relationship

8 with Commander Mulvihill was a good one?

9 A. It was, yes.

10 Q. There was no personality or other clashes between you?

11 A. It was a good working relationship.

12 Q. And in due course he produced his reports and you

13 issued, in relation to those reports and that

14 investigation, a statement of satisfaction?

15 A. Yes, my statement in March 1999.

16 Q. Thank you. Now, the next thing I would like to ask you

17 about, which you deal with or begin to deal with,

18 rather, at paragraph 135, RNI-813-848 (displayed), is

19 the second meeting that you had with the

20 Chief Constable.

21 A. Yes.

22 Q. You say there:

23 "The second of my two meetings with the

24 Chief Constable -- can we have it on the screen, please?

25 A. I have it in hard copy.

 

 

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1 Q. RNI-813-848, please (displayed). You say:

2 "The second of my two meetings with the

3 Chief Constable can be dated by reference to three

4 things."

5 Then you set them out, and your conclusion at the

6 end, just jumping ahead, is that you can say with

7 confidence that it took place before Rosemary Nelson's

8 murder, which was on 15 March 1999.

9 A. To the best of my knowledge, yes. In terms of

10 preparation of this statement, when I was interviewed by

11 the Inquiry team, I did my utmost in terms of preparing

12 my diary and recollection to try and date the meeting.

13 I didn't make a diary entry of my attendance at the

14 meeting, but I did ask the team whether they could

15 possibly check whether I had been logged into the

16 building or not.

17 Q. Well, I think -- just to give a little bit of evidence

18 at this point -- I'm right in saying -- and somebody

19 will shout if I'm wrong -- that the Inquiry has tried

20 all of those various ways of checking with no result, I

21 am afraid.

22 A. I see.

23 Q. So we are left with you and your memory. You say here:

24 "As I understand it, it can't have been

25 before October 1998 because that is when one of those

 

 

83

 

1 present was appointed."

2 Do you see that?

3 A. Yes, I do.

4 Q. And you believe that it must have been before the

5 murder, which is in the middle of March?

6 A. Yes.

7 Q. I would like you to try, please, as hard as you can --

8 because this is quite important -- to tell us whether

9 you think that this meeting took place before the end of

10 1998?

11 A. I believe -- I mean, I have tried to answer that

12 question in terms of giving my statement. It definitely

13 happened before the death of Mrs Nelson and I believe it

14 happened after I had completed the final report

15 subsequent to receiving Commander Mulvihill's final

16 report, and I really -- I can't be more helpful than

17 that.

18 Q. Let's see if I can assist. If we look at one of the

19 Mulvihill reports at RNI-220-001 (displayed), we will

20 see at the end of the report a date, at RNI-220-021

21 (displayed), of 26 January 1999?

22 A. Yes, that's right.

23 Q. Now, so far as the review is concerned, again, that

24 starts at RNI-226-002 and ends at RNI-226-025 -- if we

25 could have that on the screen (displayed) -- and there

 

 

84

 

1 the date is 5 March, so very shortly before the murder

2 of Rosemary Nelson.

3 A. Yes.

4 Q. Does that assist you in relation to whether this meeting

5 took place before the end of 1998, or not?

6 A. Well, it -- I believe that the meeting happened before

7 Mrs Nelson was murdered. It is more likely to have

8 happened after the receipt of Commander Mulvihill's

9 final report.

10 Q. And is that the review that we have just looked at

11 together, which is there dated 5 March?

12 A. No, I think the January document.

13 Q. I see, that was in relation to --

14 A. There were two separate reports. I don't need to --

15 well, just to confirm, the review dealt with -- the

16 overarching review, the report, was specifically dealing

17 with the complaints reinvestigation.

18 Q. Yes. So do you think it came after the time of the

19 final --

20 A. Some --

21 Q. -- LAJI report?

22 A. Some time after the end of January, I believe and --

23 yes.

24 Q. We will see if we can find anything else useful, but

25 that is very helpful. Where did it take place, the

 

 

85

 

1 meeting?

2 A. At headquarters in Brooklyn.

3 Q. What was its purpose?

4 A. The purpose was to -- a follow-up, I suppose, from the

5 1 July meeting the previous year.

6 Q. You say in 137 of your statement at RNI-813-849

7 (displayed):

8 "To this extent it was rounding off the business of

9 our first meeting on 1 July."

10 A. That was my understanding, yes.

11 Q. And you say there again that it was arranged in advance

12 of your finalising your final statement?

13 A. Yes.

14 Q. Who was present?

15 A. Myself, Paul Donnelly, the Chief Constable and the

16 deceased, DCC.

17 Q. Nobody else?

18 A. To the best of my recollection, no.

19 Q. Can you recall how long the meeting took?

20 A. It took no more than 15/20 minutes, half an hour max.

21 Q. Whether did it become clear to you that the real

22 business of the meeting had been conducted before it

23 began?

24 A. I think that became clear to me once I arrived.

25 Q. Mr Donnelly didn't let you know before?

 

 

86

 

1 A. No, and -- I mean, I wasn't so naive not to realise that

2 there would have been discussions between the heads of

3 the two organisations, if you like.

4 Q. But did you feel at the beginning of the meeting an

5 increasing sense that you had been kept in the dark,

6 both by your Chairman and by the Chief Constable?

7 A. I think that's fair, yes.

8 Q. Did you feel in the meeting that they were attempting to

9 make you change or persuade you to change your position?

10 A. I didn't -- I sensed that more strongly from the

11 Chief Constable rather than the Chairman.

12 Q. Your position being that you wanted, as we saw earlier

13 in your original letter, to record your concerns about

14 the original investigation?

15 A. I was clear about that in July 1998 and I remained clear

16 about that right up to the issue and following my --

17 I mean, I'm still clear about that today.

18 Q. Was an express attempt made in that meeting to persuade

19 you not to record those concerns?

20 A. I think what I have said in my statement is that my

21 sense was that an attempt was being made to push me from

22 those concerns, given that I was satisfied with the

23 Mulvihill limb of the reinvestigation, but I wasn't

24 prepared to do that.

25 Can I just say that that would neither have been

 

 

87

 

1 professionally or ethically correct.

2 Q. But you felt that you were being put under pressure in

3 the meeting to resile?

4 A. Yes, I did.

5 Q. And the experience must have been rather an intimidating

6 one?

7 A. It was uncomfortable, yes.

8 Q. But as I understand it, you held your ground; is that

9 right?

10 A. That's correct, yes.

11 Q. You say in your statement at paragraph 139 that you felt

12 anxious in advance of the meeting. Yet the striking

13 thing about it is that we don't have any notes made by

14 you, as we do, for instance of the 1 July meeting.

15 A. Yes.

16 Q. Did you take notes?

17 A. No, I didn't.

18 Q. Was there a particular reason why you didn't take notes

19 of this meeting?

20 A. Not that I can recall, no.

21 Q. It must have been obvious that it was potentially a very

22 important meeting?

23 A. It was an important meeting, yes.

24 Q. And even more obvious to you, its significance, surely,

25 after the meeting. There was an opportunity then to

 

 

88

 

1 make notes, wasn't there?

2 A. There was an opportunity to make notes, but I didn't do

3 that.

4 Q. Was there any particular reason for that?

5 A. No.

6 Q. Now, you say in this meeting that when the

7 Chief Constable realised you weren't going to resile,

8 you weren't going to change your mind, he made some

9 comments about Mrs Nelson?

10 A. Yes, he did.

11 Q. Can you tell us, as precisely as you can, what comments

12 he made?

13 A. That Mrs Nelson was having an affair with her client,

14 Colin Duffy.

15 Q. Are you able to say what exact words were used?

16 A. I can't say the exact words, in terms of his direct

17 speech, but I'm clear that that is what he was saying.

18 Q. Is it possible that you misunderstood?

19 A. No, absolutely not.

20 Q. Is it possible that you are mistaken in your

21 recollection and that the comments were made at the

22 earlier meeting on 1 July?

23 A. No, I don't believe that is the case.

24 Q. Well, how, then, in the course of the discussion, did

25 this comment on what appears to be a completely

 

 

89

 

1 different topic come to be made?

2 A. It came to be made in the latter half of the meeting

3 towards the end of the meeting.

4 Q. Was it simply stated out of the blue?

5 A. I can't be specific, other than to say that there was

6 some discussion around Commander Mulvihill's findings,

7 and I can't exactly place the comment but it was said.

8 Q. Well, you have told us the context of the meeting and

9 what happened and whether or not you were going to make

10 critical remarks, et cetera. This comment appears to be

11 of a completely different kind.

12 Was Rosemary Nelson herself the subject of

13 discussion at the meeting?

14 A. There must have been some discussion around her, yes.

15 Q. But you can't recall that now?

16 A. I can't.

17 Q. And in terms of the words used, do you have

18 a recollection as to whether the comment was made and

19 discussion moved on?

20 A. Discussion moved on. I personally didn't reply or say

21 anything, but privately I was quite shocked that this

22 matter was raised by the Chief Constable. And my own

23 impression was that at some level he was trying to cast

24 doubt on Rosemary's character and as an individual.

25 Q. But was the subject of her character as an individual

 

 

90

 

1 under discussion at this meeting?

2 A. I can't say with clarity.

3 Q. Was it a comment made in the context of a discussion

4 about credibility or reliability?

5 A. It may well have been.

6 Q. But you are not able to say one way or the other?

7 A. No, I can't say.

8 Q. Did anybody make any response in the meeting to the

9 comment?

10 A. No.

11 Q. Had you heard that suggestion before?

12 A. No, I hadn't.

13 Q. Did you think at that stage of the process that the

14 information which you had been given in this way in that

15 comment was relevant to your supervision of the

16 Mulvihill investigation?

17 A. What my impression, what I thought, was that it was an

18 attempt to cast doubt on Mrs Nelson's reliability --

19 Q. Did you -- I'm sorry to interrupt you --

20 A. That's okay.

21 Q. Did you regard it as a relevant comment of your

22 supervision of the investigation?

23 A. No, I regarded it as a shocking comment.

24 Q. You say that after the meeting you did not mention it to

25 Mr Donnelly?

 

 

91

 

1 A. No, I recall that we travelled back to -- we had left

2 from the ICPC offices in a car and travelled back there

3 before I made my way home.

4 Q. Did you ever discuss it with him subsequently?

5 A. Not to the best of my knowledge, no.

6 Q. Did you ever raise it in the forum, for example, of

7 a Commission meeting?

8 A. No.

9 Q. Did you ever make a note of the comment made at any

10 point after the meeting?

11 A. I don't believe I did, no.

12 Q. So is it right then that the first time you were

13 involved in making a written record of these events was

14 when you made your statement to this Inquiry?

15 A. Yes, I think that's fair.

16 Q. We have already discussed the question of the review --

17 that is the Mulvihill review; not the report, but the

18 review -- and I have shown you, I think, the beginning

19 and the end of it to try and look at some dates. There

20 are a number of issues that I just want to touch on

21 within it with you very briefly.

22 A. Yes.

23 Q. The first we can see at RNI-226-013 (displayed). At the

24 very bottom of the page under the heading "Issue 6", he

25 deals with the intervention at an earlier stage of the

 

 

92

 

1 process in relation to the Chief Inspector. This was, I

2 think, before you sent the formal letter of 20 March?

3 A. Is it the first paragraph?

4 Q. No, the third paragraph at the bottom of the page.

5 A. Yes.

6 Q. Do you see?

7 A. 013?

8 Q. Yes.

9 A. Just bear with me. Let me read for a second.

10 Q. Thank you.

11 A. (Pause).

12 Yes.

13 Q. Sorry, I'm just going to interrupt that with, as it

14 were, a news flash. In terms of dates, this may help

15 you -- at least I would like to hear if it changes your

16 view. We looked at the final Donnelly case report, do

17 you remember, 26 January?

18 A. Mulvihill Report?

19 Q. Yes.

20 A. Yes.

21 Q. Then the review, and we saw that that was, I think,

22 26 --

23 A. 5 March.

24 Q. Exactly, thank you. It looks as though that was the

25 date of the report into the LAJI and Colin Duffy and

 

 

93

 

1 Rosemary Nelson complaints as well?

2 A. Yes.

3 Q. 5 March.

4 A. Okay.

5 Q. So can I take it that the estimate that you have put

6 on --

7 A. I think it remains the same.

8 Q. Thank you.

9 A. Yes.

10 Q. Just returning to this point, there was an issue which

11 was raised, as it were, on your behalf by Mr Mullan. It

12 was the first time following, I think it was the

13 Julie Doran interview in October --

14 A. That's correct, yes.

15 Q. -- where you began to have concerns about the

16 investigating officer. And the suggestion here that

17 Mr Mulvihill makes:

18 "It is clear that the supervising member ..."

19 That is you:

20 "... did not want the superior officer, the

21 Superintendent, to speak to the Chief Inspector."

22 Was that in accordance with your own recollection?

23 A. I think what is -- a clear way to put it is that I

24 didn't want a formal action initiated against the

25 investigating officer, but certainly I did want general

 

 

94

 

1 information to go back, both to him and to his

2 associates, in relation to the procedure, but not in

3 a -- what one might call a constructive discussion way,

4 but certainly on a more informal but important base, if

5 you like. Does that help?

6 Q. It does, thank you very much.

7 Now, so far as the pre-prepared statements issue is

8 concerned, again dealing with this briefly, you touch on

9 it in your statement, but Commander Mulvihill concluded

10 that the position was that they were entitled to submit

11 pre-prepared statements as the system was set up. And

12 he suggested, indeed, that the difficulty was, as I

13 understand it anyway, what happened after they had been

14 put in; in other words, how the interview itself was

15 thereafter conducted?

16 A. Yes.

17 Q. That is the discussion we had earlier, isn't it?

18 A. That is correct.

19 Q. There is a favour, isn't there, in this review that the

20 difficulties which emerged between you and this

21 particular investigating officer could and should have

22 been sorted out and resolved at a much earlier stage?

23 A. That was Commander Mulvihill's view having spoken to the

24 investigating officer, but not me personally, in

25 relation to the progress and process of the original

 

 

95

 

1 investigation.

2 Q. So do you accept that those matters could have been

3 resolved at an earlier stage?

4 A. My position is that for my part I did raise concerns,

5 both practical and other, at various stages and matters

6 didn't improve, if you like.

7 Q. Another comment made by the Commander, which we can see

8 at RNI-226-017 -- if we can have that on the right-hand

9 side (displayed) -- you take issue with in your

10 statement at paragraph 163 --

11 A. Okay.

12 Q. -- RNI-813-856. Perhaps we could have that on the right

13 (displayed).

14 You see the Commander says, citing a point made to

15 him by the Chief Inspector under issue 8, that the

16 forms, the 17/3 caution forms, effectively invite an

17 officer to make a statement at any time?

18 A. Yes.

19 Q. You, in your statement, say:

20 "This flies in the face of good procedure."

21 Again, it is the procedure point that you made to me

22 a little earlier, as I understand it?

23 A. Yes, and it is latterly taken on board, in terms of

24 a change in process, post-working group, if you like.

25 Q. Yes. So this in fact was one of those issues about

 

 

96

 

1 which there was a great deal of contention at the time.

2 But the working group, as it were, went with you, if I

3 can put it that way, and the pre-prepared statements

4 route was ruled out, as I understand it, after this?

5 A. I think -- I mean, if you want to look at that, we can

6 certainly do it, but all of my concerns were worked

7 through and factored into practical changes in terms of

8 process.

9 Q. Now, just looking at the 17/3 form, which, as it says,

10 effectively says to the officer against whom the

11 complaint has been made, "What have you got to say about

12 this?" there are cases, of course -- and the LAJI

13 complaint is a classic example -- where the time lapse

14 between the events in question and the officer being

15 confronted with the allegations in the 17/3 form is very

16 considerable, a matter of months?

17 A. Yes, I would accept that, yes.

18 Q. And so isn't one of the beneficial effects of the system

19 whereby the charge is recited and an opportunity given

20 at that stage to respond, that it allows, in fairness to

21 the officer, for the situation where what he is suddenly

22 being confronted with happened many months before the

23 service of the form?

24 A. In fairness to the officer, yes. I mean, when there was

25 delay, that might have caused difficulty for the

 

 

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1 officer.

2 Q. Because in the intervening time, to take the case of an

3 interviewing officer, he might have conducted dozens or

4 maybe more interviews of all sorts of suspects between

5 the time of the alleged events and the time when he's

6 confronted with the disciplinary mechanism?

7 A. Yes.

8 Q. So fairness requires, doesn't it, that he be given the

9 opportunity as set out in that form 17/3?

10 A. At that time, that is how it was set out, yes.

11 Q. Now, so far as criminal cases are concerned, again there

12 are situations -- and no doubt you have come across, or

13 you did come across them in your own practice -- where

14 a defendant will hand in a prepared statement, and

15 that's a permitted thing within the criminal process,

16 isn't it?

17 A. Yes, that's right.

18 Q. You can see, can't you, the argument from the officers:

19 why on earth should officers facing serious disciplinary

20 proceedings be any different a position to a defendant

21 in such a case?

22 A. I think what is pertinent here is to put in context the

23 nature of the 17/3 and the pre-prepared statements in

24 terms of obstructing a proper and thorough

25 investigation.

 

 

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1 Q. What do you mean by that, sorry?

2 A. What I mean is that in this particular complaints

3 investigation, the fact that pre-prepared statements

4 were prepared in advance and relied on heavily, that

5 that effectively, certainly in the first part of the

6 investigation, left ensuing interviews -- I think the

7 word I have used is a "sham", that that basically had an

8 impact on the quality of the process.

9 Q. But isn't that a question of how the thing works out in

10 practice? In other words, if the officers in those

11 cases have been subjected to thorough and rigorous

12 interview by the investigating officer, the concerns

13 that you have expressed would have been removed?

14 A. I think there are two things. Certainly, I take your

15 point in relation to proper interview, but part of the

16 concern that I raised was in relation to pre-prepared

17 statements being solicited in advance.

18 Q. Yes. And that was a concern you raised with the

19 Superintendent, wasn't it?

20 A. Yes.

21 Q. And he supported you in that and said that if they were

22 being solicited by the investigating officer in advance,

23 he was wrong to do so?

24 A. That's correct.

25 Q. And if there was a practice of that kind to solicit

 

 

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1 pre-prepared statements, it should stop?

2 A. That's what he said, but in fact, after that there were

3 others who presented with pre-prepared statements to

4 interview.

5 Q. But having raised the matter with the Superintendent, as

6 you did, you received his full support on that issue,

7 did you not?

8 A. I did, but in practice it still happened after that

9 date.

10 Q. Thank you. Can we look then at the recommendations in

11 this review, and they begin at RNI-226-023 and they

12 continue -- they are 20 of them in all -- to RNI-226-025

13 (displayed).

14 Now, again, I don't want to dwell on any one of

15 them -- there are 20 numbered paragraphs, some with

16 subparagraphs -- but in broad terms, is it fair as

17 a summary to say that a number of these recommendations

18 coincided with your own views and, indeed, the points

19 that you had made by way of criticism of the

20 investigation?

21 A. Yes, I think that is fair.

22 Q. Can I show you just a couple of examples at 6 and 7 on

23 RNI-226-024 because here we have -- RNI-226-024, please

24 (displayed)? We have the example of the pre-prepared

25 statements:

 

 

100

 

1 "The contentious issue of pre-prepared statements

2 needs to be revisited with appropriate legal advice to

3 establish a policy."

4 Then 7:

5 "In the event that any suspect police officer

6 attends for interview having completed a prepared

7 statement, he/she must still be subject to comprehensive

8 questioning to establish specific and detailed

9 responses. The fact that such prepared statements must

10 not [underlined] be actively sought by investigating

11 officers should be brought to the notice of

12 investigators by way of clear written instructions."

13 A. Yes.

14 Q. So that was a recommendation which not only picked up

15 all of your points, but also addressed the point you

16 have just made to me, which is that it is not so much

17 what the Superintendent said, but what was actually

18 going on in practice. And that is, it would appear,

19 what the bracket is intended to address?

20 A. That's correct, yes.

21 Q. Thank you. Can we move to the aftermath of the murder,

22 please?

23 The murder, as I've said, took place on 15 March and

24 very shortly after that, Mr Donnelly, the Chairman of

25 the Commission, held a press conference in relation to

 

 

101

 

1 the -- I think it was actually in relation to the annual

2 report for 1998. Is that right?

3 A. Yes, I think that was on 19 March, at the Europa Hotel

4 in Belfast.

5 Q. Thank you very much. Can you look at your statement at

6 RNI-813-852 in paragraph 152 (displayed).

7 A. Yes.

8 Q. So this was in the immediate aftermath of the murder,

9 and you say -- and I wanted to show you this paragraph

10 because of the question of dates again, because I

11 haven't shown it to you before. Do you see

12 paragraph 153, just below that:

13 "I had met Sir Ronnie Flanagan for the second time

14 prior to this meeting."

15 Then you say:

16 "There would not have been any benefit, from

17 Sir Ronnie's perspective, of meeting me after Paul

18 Donnelly disclosed the information which Sir Ronnie had

19 wanted me to keep quiet."

20 In other words, that announcement on the 19th meant

21 that, as it were, the cat was out of the bag and so the

22 meeting, the second meeting you had, must have been at

23 least before that?

24 A. Yes, I think that's fair.

25 Q. You said earlier I think that it was, in your view --

 

 

102

 

1 sorry, which had took place before the murder because

2 your diary has no entry for a meeting in those days

3 after the murder?

4 A. Yes, that's correct.

5 Q. Thank you. Sir, would that be a convenient moment?

6 THE CHAIRMAN: Certainly.

7 MR PHILLIPS: I should just say in terms of our timetable,

8 because Miss McNally was due to finish her evidence at

9 lunchtime, we started late, as you know, an hour late

10 yesterday, I am afraid. I think that there is probably

11 about another hour to go.

12 THE CHAIRMAN: Miss McNally, would you be good enough to

13 return at 2 o'clock?

14 A. I will, of course.

15 THE CHAIRMAN: Thank you very much indeed, because the

16 stenographer has to have a good break.

17 A. Absolutely.

18 THE CHAIRMAN: Thank you very much. We will adjourn until

19 2 o'clock.

20 (1.00 pm)

21 (The short adjournment)

22 (2.00 pm)

23 THE CHAIRMAN: Yes, Mr Phillips?

24 MR PHILLIPS: Now, Miss McNally, can we take the matter on

25 to the statement that you made at the conclusion of the

 

 

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1 Mulvihill investigation? We can see that at RNI-228-022

2 (displayed) and your signature at RNI-2278-028

3 (displayed) and the date of 22 March. The part of it

4 I just want to show you on the screen, please, is the

5 beginning of the appendix, RNI-228-027 (displayed).

6 To put it in context -- and I think we went over

7 this, but just confirm, would you, please, you gave

8 a statement of satisfaction in relation to the Mulvihill

9 investigation?

10 A. Yes.

11 Q. But repeated the criticisms and concerns that you had in

12 relation to the previous investigation, both in the body

13 of the statement and these bullet points in the

14 appendix?

15 A. Yes, as I confirmed I would do in July 1998.

16 Q. Exactly. Can I take it -- and, again, I don't intend to

17 take you through it in any detail -- that that was

18 a full statement of the aspects of the investigation

19 that you regarded as being unsatisfactory?

20 A. Yes, to the best of my knowledge, yes.

21 Q. Can I ask you this question about it: Do you know

22 whether the investigating officer was shown the appendix

23 before it was issued?

24 A. No, I don't.

25 Q. Do you have any reason to think that he was shown it?

 

 

104

 

1 A. No, I don't.

2 Q. Did you think that he should have been shown it before

3 it was issued?

4 A. No.

5 Q. Do you think he should have been afforded a right of

6 reply once it had been issued?

7 A. That would not have been normal procedure.

8 Q. Now, can I just ask you about the response, which did,

9 in due course, come from him to the Chief Constable so,

10 again, we have it clear in our minds? RNI-228-104

11 (displayed) dated 2 April, that same year: Is that

12 a document that you saw at the time?

13 A. It is a document that was shown to me yesterday.

14 Q. For the first time; is that right?

15 A. No, I was going to go on to say that there was later

16 complaint lodged by the investigating officer. So

17 during the course of that complaint I would have been

18 shown that document.

19 Q. So far as the complaint and the other comments made in

20 that letter by the investigating officer are concerned,

21 can I ask you this: do you maintain the points, the

22 expressions of dissatisfaction, which are set out in the

23 appendix in relation to his conduct of the

24 investigation?

25 A. I do.

 

 

105

 

1 Q. Can I ask you on that specific issue a question raised

2 by paragraph 157 of your statement at RNI-813-854?

3 (displayed) I want to understand the point you are

4 making.

5 A. Yes.

6 Q. You have talked about your appendix, and you then say

7 the remaining points -- that is in the appendix -- are

8 all further evidence of this:

9 "In this respect, it is also important to reconsider

10 that the investigating officer's reports were approved

11 by the Superintendent prior to submission to the ICPC.

12 He, therefore, approved the Chief Inspector's thoughts

13 in this respect."

14 Now, what do you mean by that, please?

15 A. I think I'm clear about that. The report of the Chief

16 Inspector would have been seen and formally written off,

17 if you like, by his supervisor, who was the

18 Superintendent. So any content of that report, by

19 virtue of the fact that there was no objection from the

20 Superintendent, was therefore accepted by the

21 Superintendent.

22 Q. By his superior officer?

23 A. Correct.

24 Q. So in other words, the report that we looked at together

25 earlier, in April 1998, with all the comments to which

 

 

106

 

1 you took objection or exception, was, you are

2 suggesting, by this means approved?

3 A. Correct.

4 Q. By the Superintendent?

5 A. Yes.

6 Q. And what is the significance of that, please?

7 A. The significance of that is the content of the report

8 reflected matters which were later brought to the

9 attention of the Secretary of State and the

10 Chief Constable, some of which, well, were accepted as

11 being unacceptable in terms of the specific comments.

12 Q. Do you mean the type of language he used?

13 A. Correct.

14 Q. So this is a reference, is it -- so I'm absolutely clear

15 about this -- to the passage in your statement I asked

16 you about this morning?

17 A. Yes.

18 Q. The type of language you said you had brought to the

19 attention of the Chief Constable and the Secretary of

20 State?

21 A. That's correct.

22 Q. So is your point then that this language was not only

23 the language of the investigating officer, but approved

24 by his superior within the same branch?

25 A. That's absolutely right.

 

 

107

 

1 Q. Thank you. Now, after the date we were looking at in

2 relation to your statement -- I think it was 22 March --

3 there was comment about these events and your role in

4 them in the press, wasn't there?

5 A. Yes, that's correct.

6 Q. And it included an article in the Sunday Times, which I

7 would like to show you briefly, at RNI-401-373

8 (displayed). So you have got the passage in your

9 statement, you deal with it at paragraph 166 at the

10 bottom of RNI-813-856 (displayed)?

11 A. Yes, thank you.

12 Q. There were references to you, and in short, the

13 suggestion appears to have been that you had a conflict

14 of interest or were in other ways not neutral as

15 a person to investigate these complaints.

16 Now, there were other examples of this sort of

17 comment made at the time, were there not?

18 A. Yes, that's correct.

19 Q. How did you come to hear about them?

20 A. Do you refer specifically to the police authority

21 matters?

22 Q. Whichever matters you came to hear of.

23 A. I was approached by one journalist and also through the

24 Chairman of the Commission.

25 Q. Approached in what way? What was said?

 

 

108

 

1 A. What I was told was that there was a rumour, a campaign,

2 in relation to attacking my credibility.

3 Q. What was the origin of the campaign?

4 A. Within police authority and other circles.

5 Q. And other, sorry?

6 A. Other circles.

7 Q. Which other circles?

8 A. I wasn't given that specific information at the time.

9 Q. What were the rumours that were being put in

10 circulation?

11 A. That I was politically motivated and working to

12 a political agenda.

13 Q. Was there any foundation in them?

14 A. Absolutely not.

15 Q. Can I ask you to do your best, please? We see the date

16 here of 29 March?

17 A. Yes.

18 Q. Does that help you to recall for us when you think you

19 first became aware of these rumours?

20 A. 28 March, sorry?

21 Q. Does the date on that article, which is 28 March 1999,

22 help you with when it was you think you first became

23 aware of the rumours?

24 A. I believe it was before that date.

25 Q. Are you able to put a date or a rough date upon it?

 

 

109

 

1 A. I can't give you an exact date, no.

2 Q. Was it, do you think, before you signed the statement

3 with the appendix attached to it on 22 March?

4 A. I'm not too sure about that. I think it might have been

5 on or about 24 March. I think there was a -- there was

6 a meeting of the police authority -- this is from

7 recollection -- the papers will confirm this or

8 otherwise -- on 24th March.

9 Q. Sorry, you think there was an ICPC meeting?

10 A. I said a police authority meeting.

11 Q. A police authority meeting, yes?

12 A. Yes.

13 Q. Can you just clarify for me: how, specifically, did

14 these rumours come to your notice or attention?

15 A. To clarify again, one journalist approached me and spoke

16 to me at the ICPC offices and also through the Chairman

17 of the Commission.

18 Q. Mr Donnelly?

19 A. Correct.

20 Q. What was the level of support from the Commission, your

21 colleagues and the Chairman, at this time?

22 A. Well, at a later point there was public support of me,

23 you will see that from minutes of later meetings.

24 Q. But at this point?

25 A. At this point, it is fair to say that I felt isolated.

 

 

110

 

1 Q. And under attack?

2 A. Well, one doesn't want to read Sunday Times articles too

3 often, given their nature.

4 Q. For how long did the rumour campaign, so far as you were

5 aware, continue?

6 A. I think there is a letter from the Secretary of State

7 in June or July, which confirmed that it had ended at

8 that point. So that would be a matter of months,

9 wouldn't it, I think?

10 Q. Let me show you a letter and see if that helps you. It

11 may not be the right letter. There is a letter of

12 17 May at RNI-228-247 (displayed).

13 A. Okay. Yes, that's the letter I had in mind, thank you.

14 Q. If we are going to look at that, can we first look,

15 please, at the letter to which it is a response, which

16 is a letter from the Chairman of 4 May. That is at

17 RNI-228-193 (displayed). This is to Mr Ingram, not the

18 Secretary of State, and he says this in the second

19 paragraph:

20 "As you no doubt know, my colleague Geralyn McNally

21 has been the subject of gossip, rumour and vilification on

22 the part of those who should have been known better

23 enthusiastically supported by elements of the media ever

24 since her statement in this case was placed by others in

25 the public domain. This has included challenges to the

 

 

111

 

1 veracity of her conclusions as well as her motivation in

2 coming to me. Others have gone beyond the sharing of

3 defamatory sentiments and have threatened Miss McNally

4 directly in necessitating the implementation of security

5 measures."

6 So it looks, doesn't it, as though this happened

7 after your statement had emerged, whether deliberately

8 or not?

9 A. That would be fair.

10 Q. And the statement, we know, is dated 22 March?

11 A. Yes, that's helpful, thank you.

12 Q. And is that, in your view, a fair summary of what was

13 going on here?

14 A. I think it is well summarised, yes.

15 Q. Thank you. So you had been asked not to make

16 a statement of your criticisms of the conduct of this

17 investigation? That happened, if you remember, at the

18 second meeting of the Chief Constable?

19 A. Yes, that's correct.

20 Q. You had refused and had stuck to your guns and had

21 insisted on issuing what we now see is the appendix?

22 A. Yes, the ultimate statement, yes, the appendix.

23 Q. And it looks as though it was that which prompted this

24 gossip, rumour and vilification?

25 A. Yes, I think that is correct.

 

 

112

 

1 Q. Now, can I ask you to look, please, at the joint press

2 release which comes just about that time, at the end

3 of March, RNI-228-051 (displayed)? A joint statement in

4 the sense of being by the Chairman on the one hand and

5 the Chief Constable on the other.

6 A. Yes.

7 Q. Can I ask you: did you have any input into this

8 document?

9 A. No, I didn't.

10 Q. Can I ask you now to look at your statement at

11 paragraph 168, which is on RNI-813-857 (displayed)?

12 A. Yes, I have that, thank you.

13 Q. Thank you very much. Here you have been referring to

14 the article and, if you see in the earlier paragraph, to

15 the support that you have received in various quarters,

16 including from the Chairman of the Bar?

17 A. Yes.

18 Q. But in looking at the joint statement, you say:

19 "It ..."

20 The joint statement:

21 "... is attached and this ..."

22 I'm sorry, this is the last sentence of the

23 paragraph, do you see:

24 "... this further undermined me because

25 Paul Donnelly had gone over my head and effectively

 

 

113

 

1 devalued my original concerns"?

2 A. Yes, I do say that.

3 Q. So this must have been at least part of the feelings of

4 isolation that you mentioned earlier?

5 A. Yes, absolutely.

6 Q. Thank you. And, again, I don't want to dwell on it or

7 go through it in any detail with you, but can you

8 summarise for us what it was about this statement that

9 you thought effectively devalued your original concerns?

10 A. Well, I think in a nutshell -- I mean, I have referred

11 to the timing of the article. It was published two days

12 after a very public piece in the Sunday Times, which we

13 looked at, and without having spoken to me.

14 I understood that at a corporate level both

15 organisations -- by that I mean the ICPC and the RUC --

16 were working together. So I understood that, but in

17 effect I felt diluted, my concerns, and even though

18 Chairman Donnelly later made a very public review of his

19 feelings and concerns around the Mulvihill review, it

20 effectively rubber-stamped, in my view, the total

21 content of that. So it was a document prepared by the

22 three men in question.

23 Q. When did you first learn about it?

24 A. The day that it was issued. I think it was the morning

25 in fact, yes.

 

 

114

 

1 Q. You have also mentioned the comments about the

2 investigation that the Chairman made. I would like to

3 show you those briefly, please: RNI-228-158, dated

4 a month later, addressed to the Chief Constable.

5 RNI-228-158, please (displayed). It's 30 April and it

6 contains -- I am afraid it's on the next page, so it is

7 RNI-228-159 (displayed) on the screen, please --

8 a commentary from the Chairman running to many pages on

9 the conduct of the investigation.

10 Now, in your statement at paragraph 171 you describe

11 this as being too little too late. Is that because, in

12 your view, by then the damage had been done?

13 A. I think that is very obvious, yes.

14 Q. Was this critique or commentary prepared with your

15 assistance?

16 A. It was not, no.

17 Q. It was, as it were, his own work?

18 A. Yes.

19 Q. Do you know whether there was warning or notice of its

20 existence given to the Chief Constable before it was

21 issued?

22 A. In retrospect, I would be surprised if it wasn't.

23 Q. But you don't know one way or the other?

24 A. I don't know.

25 Q. Because on the face of it, so far as the Chairman is

 

 

115

 

1 concerned, it represented something of a shift of his

2 position, didn't it, given the content of the joint

3 statement?

4 A. That's correct, yes.

5 Q. Thank you. So far as the Commission is concerned,

6 there's just one matter I would like to show you. There

7 was a show of support for you, I think, in the meeting

8 which took place shortly before this on 23 April?

9 A. Yes.

10 Q. Can we look at that together, please? RNI-222-025.

11 (displayed). 23 April, and the relevant passage comes,

12 I think -- well, it is a very, very long section of the

13 minutes, but it begins at the bottom of RNI-222-027

14 (displayed). 7.3 is a long discussion of the case;

15 this, of course, in the aftermath of the murder, never

16 mind the Commission's involvement.

17 Your own statement to the meeting begins at the

18 bottom of the page, as recorded in the minutes?

19 A. Yes.

20 Q. And discussion continues -- RNI-222-028, please

21 (displayed) -- until the end of the page, where it says:

22 "The Chairman suggested that given the fact that the

23 Commission supported its member, the Commission's public

24 relations firm should be approached with a view to

25 reinforcing this message."

 

 

116

 

1 Again, can I ask you this question, please -- we are

2 now at 23 April: was it your view also that this was too

3 little too late?

4 A. Yes, that in fact was never done.

5 Q. It was never done?

6 A. No.

7 Q. Thank you. I would like to ask you just a few

8 questions, please, about your involvement in the murder

9 investigation.

10 You will recall meeting Detective

11 Chief Constable Port and another English police officer

12 at the Commission's offices in, I think, July 1999?

13 A. Not clearly, but -- not clearly --

14 Q. It rings a bell?

15 A. Yes, it does.

16 Q. Do you remember that they asked you to provide any

17 information you thought relevant to the investigation?

18 A. They would have done, yes.

19 Q. And do you remember raising with them your concern over

20 the reliability of the transcript of one of the

21 interviews conducted by the Mulvihill team?

22 A. I don't recall that at this stage. Perhaps you could

23 assist me.

24 Q. I can't, I am afraid. Is it possible that you raised

25 that matter with them?

 

 

117

 

1 A. If I felt it was appropriate or important at the time, I

2 am sure I would have raised anything.

3 Q. Were you aware of subsequent enquiries made by the

4 murder investigation team as a result of that?

5 A. At this stage, no.

6 Q. Thank you. Now, I would like to ask you some questions

7 about Rosemary Nelson and threats and security. So we

8 are moving on to, to completely different topic.

9 A. That's okay.

10 Q. I am afraid it means going back in time, which we are

11 going to be doing a little bit from now on.

12 A. Yes, okay.

13 Q. To give you a bit of a grounding in the chronology, can

14 you look, please, at paragraph 27 of your witness

15 statement at RNI-813-818 (displayed)?

16 A. I will.

17 Q. Here you say:

18 "I do recall that at one interview in Craigavon

19 police station, Rosemary Nelson reported feeling

20 unsafe."

21 Then you go on to talk about it. Can I ask you this

22 question: you are not sure of the date?

23 A. No, I'm not.

24 Q. You are sure of the place?

25 A. I am, yes.

 

 

118

 

1 Q. Are you sure of who was present?

2 A. Yes: the investigating officer, myself and my assistant,

3 Mrs Mitchell.

4 Q. And Rosemary Nelson, obviously?

5 A. Yes, sorry.

6 Q. Did she say what was making her feel unsafe in her home?

7 A. I mean, I have tried my best in terms of my statement to

8 be clear about this. I have a recollection that she

9 talked about feeling unsafe due to threats that she had

10 been receiving. And if I can just elaborate on that, my

11 recollection is that that was discussed with the

12 investigating officer, who offered the possibility of

13 having those matters investigated or looking into some

14 sort of protection for Mrs Nelson at that time. That

15 was refused by Mrs Nelson.

16 Q. Well, let's look at that specific exchange, then.

17 Whenever it took place, she, you think, raised the

18 topic; is that right?

19 A. Of feeling unsafe? Yes.

20 Q. Yes. And the investigating officer responded by asking

21 her essentially whether there was anything he could do

22 to help. Is that a fair way of putting it?

23 A. Yes, if he could instigate some sort of protection on

24 her behalf.

25 Q. Yes. Can you remember anything about the sort of

 

 

119

 

1 terminology he used in making that offer?

2 A. I can't remember his exact words, but it was an offer to

3 assist her, to help her.

4 Q. What was her response?

5 A. That she didn't want that.

6 Q. Did she explain why.

7 A. That -- again, I can't remember specifically what she

8 said, but my sense of it was that the threats, in

9 Mrs Nelson's view, were emanating from the organisation

10 that had been offering her security protection. So in

11 her mind that wasn't going to work, effectively.

12 Q. Do you remember that in the statement we looked at

13 earlier, on 16 September, she started to talk about

14 other incidents, threats and other matters of that kind

15 and that's what led her to talk about the CAJ witness

16 statements, and that's what led to that investigation,

17 the LAJI investigation?

18 A. Yes.

19 Q. Does that help you to decide whether it was on that

20 occasion or another occasion that this reference to

21 feeling unsafe might have been made by Mrs Nelson?

22 A. I can't say categorically which occasion, but it may

23 well have been during that interview on 16 September.

24 Q. Now, we have in the bundle your notes of the interview;

25 RNI-209-183 (displayed). It is right, isn't it, that

 

 

120

 

1 there is no reference to this topic being raised in the

2 interview in your notes?

3 A. That's right.

4 Q. Indeed, in any of your notes that I have seen?

5 A. Yes, that's right.

6 Q. Isn't it something that you might have wanted to make

7 a note of?

8 A. It may possibly have helped to do that, but I didn't.

9 Q. Did you discuss the question that she had raised with

10 anybody else, with Mrs Mitchell or anybody else?

11 A. There may have been a discussion with Mrs Mitchell. She

12 could obviously assist you with that, but it really was

13 a matter for the investigating officer in terms of what

14 could or could not have been done.

15 Q. After Mrs Nelson had made it clear that she didn't want

16 to accept the offer, was there any further discussion?

17 A. Not to the best of my knowledge.

18 Q. You didn't seek to persuade her otherwise?

19 A. No.

20 Q. Were you concerned about what you had heard?

21 A. Yes. I mean, at different stages -- I think I have said

22 in my statement that Mrs Nelson appeared anxious at

23 different stages, and obviously at that stage the

24 thought that she might be murdered was not on my mind.

25 Q. Can you remember any particular stage of this long

 

 

121

 

1 process we have been talking about where you noticed her

2 mood becoming more anxious?

3 A. I'm not sure that there was an increase -- I'm not sure

4 that I observed her becoming more anxious, but it was

5 the flavour -- it was basically how she was at

6 all stages from my first meeting her.

7 Q. Now, so far as her refusal is concerned, did it surprise

8 you?

9 A. That she didn't want --

10 Q. Yes.

11 A. I'm not sure that it surprised me, no. I mean, I think

12 I have said in my statement I could understand from her

13 perspective that by virtue of the nature of the

14 allegations that she was making that she may not have

15 felt confident in the RUC providing protection for her

16 at some level.

17 Q. Can we have a look at that? You deal with it in 28,

18 which is on the next page, RNI-813-819 (displayed).

19 A. Yes.

20 Q. You do indeed say in the second sentence:

21 "I could, therefore, have understood why ..."

22 A. Yes, I think I have said so. A slightly perverse

23 situation.

24 Q. Yes.

25 A. Yes.

 

 

122

 

1 Q. But looking at it another way, presumably it wasn't

2 being suggested by Mrs Nelson that the entire police

3 force was threatening her?

4 A. No, she made specific allegations.

5 Q. So there was no necessary connection between those who

6 would be responsible for looking after her safety on the

7 one hand and whoever it was who may have been

8 threatening her on the other?

9 A. There may not have been an overlap, no.

10 Q. Were you aware at the time, whenever we are talking

11 about, let's say late 1997, of any other ways that she

12 could have obtained some sort of protection or advice

13 that didn't involve police?

14 A. No.

15 Q. What about basic security advice?

16 A. Was I aware of basic --

17 Q. Yes.

18 A. No.

19 Q. So other than the exchange that happened in the room

20 with the people present that you have described, did you

21 have any further discussion about what had been said

22 at all?

23 A. No.

24 Q. Thank you. Now, the investigating officer does not

25 recall -- you have seen his witness statement, I know.

 

 

123

 

1 A. Yes, I have, thank you.

2 Q. -- Rosemary Nelson raising concerns about it. Are you

3 confident in your own mind that this exchange between

4 him and her took place?

5 A. Yes, I am.

6 Q. Do you remember Rosemary Nelson saying that she

7 constantly lived with death threats?

8 A. I can't remember those specific words, but -- no, I

9 can't remember those specific words.

10 Q. Can I turn to the second occasion which you mention

11 where this issue arose? You deal with it in

12 paragraph 118 of your statement at RNI-813-843

13 (displayed).

14 A. Yes.

15 Q. During the Mulvihill investigation, Mrs Nelson was

16 interviewed by that team, by the Mulvihill team, and we

17 can see from the document in the file at RNI-223-068

18 (displayed) that she produced a threat letter in the

19 course of that meeting?

20 A. Yes. Can I just say that when I was putting my

21 statement together and being interviewed, I did not have

22 the benefit of the contemporaneous minute. I actually

23 suggested that that be sourced. So in fact it clarifies

24 my unclear position in those two paragraphs.

25 Q. Yes. Does it help you to remember whether you were

 

 

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1 present or not?

2 A. It clarifies that I wasn't actually present in the room,

3 I was dealing with another interview.

4 Q. So your understanding about what happened in the

5 interview is presumably limited to what you were told at

6 the time by Mrs Mitchell?

7 A. Yes, I would have been briefed by Mrs Mitchell

8 afterwards. So it helpful by clarifies that, for my

9 part.

10 Q. So far as the detail is concerned, you can't do any

11 better than the note that is set out here, RNI-223-069

12 (displayed)?

13 A. I can't.

14 Q. Do you think you were made aware of this exchange with

15 the threat letter immediately after the interview?

16 A. I can't say with absolute certainty, but I would have

17 imagined that that would have happened either when the

18 interview of the other witness had finished or shortly

19 afterwards.

20 Q. Were you told whether any offer of assistance had been

21 made to her in the interview?

22 A. No, I don't believe so.

23 Q. What did you think about a threat note? Do you think it

24 should have been referred to the police?

25 A. My personal opinion?

 

 

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1 Q. Yes.

2 A. Possibly, yes.

3 Q. Did you make that suggestion to Mrs Mitchell?

4 A. I don't recall that, no.

5 Q. Did you make it to Rosemary Nelson?

6 A. I didn't speak with Mrs Nelson. On that occasion she

7 left the building.

8 Q. At any other occasion?

9 A. No, I don't believe so.

10 Q. No. So are you aware of any action being taken at any

11 subsequent point in relation to that letter?

12 A. I am not, no.

13 Q. No. Or of any reference being made to it or to the

14 exchange which apparently took place in the meeting, in

15 any subsequent document?

16 A. I am not, no.

17 Q. Now, I would like to return to, if I may, a little

18 earlier in the chronology. Do you remember, we did

19 something of a leap to the April 1998 report --

20 A. Yes.

21 Q. -- by P146 in relation to the LAJI case? There are some

22 matters of detail in relation to the earlier part of the

23 history that I would like to ask you about relatively

24 briefly, I hope.

25 A. Yes.

 

 

126

 

1 Q. The first is an interview that took place on 15 October

2 with Colin Duffy, and we can see the notes at

3 RNI-210-137 (displayed). Can I ask you first, have you

4 any recollection of what the atmosphere was like during

5 this particular interview?

6 A. My recollection was that it wasn't relaxed.

7 Q. No. Was there any obvious hostility between, as it

8 were, the interviewing officer and Mr Duffy during the

9 course of the interview?

10 A. Obvious hostility?

11 Q. Yes.

12 A. No.

13 Q. You say in paragraph 36, RNI-813-821 (displayed) that:

14 "There was no clear hostility from the investigating

15 officer or any other officers we encountered."

16 A. Yes.

17 Q. But is it fair to say that it was a rather tense

18 interview?

19 A. Yes, I think that's fair.

20 Q. At this point, I think it is right to say that Mr Duffy

21 had just been released from prison, where he had been on

22 remand for the alleged murder of two police officers in

23 Lurgan. So it wasn't likely, was it, to be a relaxed

24 interview?

25 A. It wasn't a relaxed interview.

 

 

127

 

1 Q. No. Now, in the note that I think you made of this

2 meeting, RNI-222-041 (displayed), you say in the fourth

3 paragraph under number 1 that before the interview

4 concluded, you reminded the investigating officer that

5 there was, as it were, an issue still to be covered. Do

6 you see that?

7 A. Yes, I do.

8 Q. Was that your usual practice, to wait to the end of an

9 interview and then raise anything that had been

10 missed out?

11 A. In the norm, yes, but it didn't always work like that.

12 Q. Were there occasions when you intervened in the middle

13 of the interview?

14 A. Yes, you asked me that yesterday and I said yes.

15 Q. But this was not an example of that kind; is that right?

16 A. No, it wasn't. I think my note reads that -- before the

17 end of the interview, yes. It was an important matter

18 that had been missed by the investigating officer.

19 Q. I am going to ask you a question very similar to

20 a question I asked you yesterday, so please forgive me.

21 A. That's okay.

22 Q. Did you think it was appropriate to interrupt an

23 interview of this kind to ask the investigating officer

24 to deal with a matter?

25 A. In my opinion, yes.

 

 

128

 

1 Q. But in the opinion of this investigating officer?

2 A. In his -- in my opinion, I think my course of action was

3 totally appropriate.

4 Q. To interrupt?

5 A. To ask him to put one of a -- an important part of the

6 complaints allegation that hadn't been put.

7 Q. Are you referring to this example on the left of the

8 screen?

9 A. Yes, I thought that is where we were talking about.

10 Q. No, that is an example of something that happened at the

11 end of the interview, as I understand it. At the end of

12 the discussion, you said:

13 "You need to raise this point."

14 A. Yes.

15 Q. Then we started to talk about occasions where you

16 wouldn't wait, but where you would come in in the middle

17 of a discussion and raise points of your own. Was that

18 something to which this investigating officer took

19 exception?

20 A. He didn't say as much on any occasion.

21 Q. Now, moving on in time, it's right, isn't it, that, as I

22 think you confirmed to me this morning, it was the

23 interview of Julie Doran, another of Rosemary Nelson's

24 clients, that led to the first difficulties between you

25 and the investigating officer in this investigation?

 

 

129

 

1 A. Yes.

2 Q. And you deal with that in paragraphs 37 to 39 of your

3 statement, RNI-813-821 (displayed), and this is the

4 occasion in which you tried to informally resolve the

5 complaint, as you saw it?

6 A. Yes.

7 Q. You say in paragraph 38, at the end of the paragraph --

8 and this is at the top of RNI-813-822 (displayed), at

9 the very end of the paragraph you say, having set out

10 the issue as you saw it, that:

11 "He either had a brazen attitude or a total lack of

12 understanding of the process."

13 Now, those are two very different options. Which do

14 you think applied in this particular case?

15 A. Either/or, really. The bottom line is that during that

16 interview, this was a supervised case and the Chief

17 Inspector at the outset tried to informally resolve the

18 matter, which was procedurally incorrect and

19 inappropriate.

20 Q. So to be clear, it was not possible informally to

21 resolve a supervised complaint?

22 A. No, otherwise there would have been no necessity for

23 myself or Jennifer to be there.

24 Q. That deals with the lack of understanding of the

25 process. What about the brazen attitude?

 

 

130

 

1 A. Well, I offered that as a possible interpretation.

2 Q. Can you help me with what you mean by that? What aspect

3 of his behaviour are you referring to?

4 A. Actually trying to informally resolve the matter with

5 Commission members present.

6 Q. When that was completely impossible under the rules?

7 A. Absolutely.

8 Q. It was the fact that he was trying to do so in your

9 presence as the supervising member, when it was simply

10 not permissible to do that?

11 A. That's correct, yes.

12 Q. What did you do about the concerns that you had as

13 a result of this interview?

14 A. Well, these matters were drawn to the attention of the

15 chief staff officer -- I think I mentioned him

16 yesterday -- Greg Mullan.

17 Q. You mentioned him, I think, in a Commission meeting

18 first of all. We can see that at RNI-222-002, and

19 specifically at RNI-222-004 (displayed). You see

20 paragraph 8 at the bottom of that page. This is 8 in

21 the minutes:

22 "In another of Miss McNally's supervised cases, it

23 was agreed that the conduct of an investigating officer

24 could be dealt with informally by having the

25 Superintendent remind his officers the standards

 

 

131

 

1 expected of them in relation ..."

2 This was the issue that you raised in this meeting,

3 wasn't it?

4 A. Yes, to the best of my knowledge.

5 Q. And Mr Mullan undertook to speak to the Superintendent.

6 As I understand it, he did speak to him. Were you

7 content with the feedback following that conversation?

8 A. Well, the feedback was that this would not occur again.

9 Q. You say in paragraph 39, dealing with this incident:

10 "The purpose of [the] call was to remind the RUC of

11 our parameters ..."

12 Can I ask you what you mean by that?

13 A. Yes. The practical reason for being present at

14 supervised interviews and our statutory duty there.

15 Q. In other words, to make sure that, as it were, the

16 demarcation lines were clearly understood and presumably

17 observed?

18 A. Correct.

19 Q. You also decided at about this time -- and, again, this

20 is paragraph 40 at the bottom of the page -- to

21 formalise your procedures. And you say that that meant,

22 I think, that everything had to be put in writing; is

23 that right?

24 A. I did. I think it is important just to view

25 paragraph 40 in light of paragraph 48 because we sort of

 

 

132

 

1 jump.

2 Q. Sorry, paragraph 40 in the light of?

3 A. Paragraph 48. Just in terms of timeline, in between the

4 Julie Doran interview and the issuing of my

5 correspondence on 24 October, there had in fact been

6 another attendance at Gough on the 21st which

7 precipitated the content of the letter sent.

8 Q. Thank you very much, that is very helpful. That, in

9 fact, at 48, the incident you describe there -- that is

10 RNI-813-824 (displayed) on the screen -- you think

11 formed part of your decision?

12 A. It did on the basis that -- do you need me to rehearse

13 that?

14 Q. No, I think that is sufficiently clear, thank you very

15 much.

16 You say -- going back to paragraph 40, however, and

17 the penultimate sentence -- this is at RNI-813-822

18 (displayed):

19 "It was my view the Chief Inspector P146 was

20 obstructing the ICPC's role in progressing the

21 investigation."

22 Which particular assessment of his behaviour do you

23 think fell into that category?

24 A. Well, I think more specifically the refusal to forward

25 documents.

 

 

133

 

1 Q. Which you mention in paragraph 48?

2 A. That's correct. Crime files, statements and documents

3 which had been agreed by his supervising officer to be

4 provided.

5 Q. You were required essentially to put it in writing,

6 despite the fact that it had already been agreed by the

7 supervisor?

8 A. That is correct, yes.

9 Q. In the Doran case, can I just ask you, it is right,

10 isn't it, that at the end, in January 1998, you did

11 issue a statement of satisfaction in relation to the

12 investigation?

13 A. Yes, that was dealt with separately from the umbrella

14 complaints.

15 Q. Exactly.

16 A. Yes.

17 Q. But at the end of that investigation, you were able to

18 certify it?

19 A. Yes, I was.

20 Q. Thank you. Now, so far as the further progress of this

21 LAJI complaint is concerned, is it right that you asked

22 the investigating officer to hold off on interviewing

23 the relevant officers until the end of January in the

24 hope that the clients would eventually cooperate and

25 come in for interview on that investigation?

 

 

134

 

1 A. I believe that to be the case, yes.

2 Q. Because in fact, although you had had the authority in

3 relation to the CAJ statements, as at that point, the

4 end of 1997, you still didn't have what you wanted

5 presumably, which was interviews?

6 A. Yes, that's right.

7 Q. Cooperation from the clients?

8 A. Yes, thank you.

9 Q. You then go on in your statement to deal with various

10 interviews that took place, I think, at the end of the

11 year and the concerns that you had about them.

12 Can I ask you, if you can -- it may be you cannot do

13 this and, if so, please say so -- but as at this point,

14 the end of the year, 1997, what were your current and

15 specific concerns about the conduct of the LAJI

16 complaint?

17 A. That's difficult to answer out of context.

18 Q. Other than the example we have looked at, where,

19 following the Doran interview, the telephone call was

20 made with the Superintendent, as far as you can recall,

21 had you done anything else to raise with the

22 investigating officer or any other officer concerns

23 about the investigation as at this point, the end of

24 1997?

25 A. No, the later action was post that.

 

 

135

 

1 Q. One of the examples you give in your statement -- again,

2 I'm going to take it briefly with you -- is in

3 paragraph 52.

4 A. Okay.

5 Q. The example you give there is an interview with an

6 officer who has a cipher, and that is P121.

7 Now, just to clear up the chronology first, the

8 interview in fact took place on 18 March 1998,

9 didn't it?

10 A. Yes, so in fact the notation at the beginning of that

11 paragraph is incorrect.

12 Q. Thank you. We have your notes in the files and I would

13 like you to look at them, please. They begin at

14 RNI-226-068 (displayed).

15 A. Yes, thank you.

16 Q. And the relevant interview note begins at the bottom of

17 the page.

18 A. It does, yes.

19 Q. Thank you. And I would like to carry on, please, so we

20 have RNI-226-069 on the right-hand side of the screen,

21 please, RNI-226-069 (displayed). Thank you.

22 This interview begins, as the notes record it

23 anyway, with the officer coming in to the room and

24 putting a pre-prepared statement on the table?

25 A. Yes.

 

 

136

 

1 Q. And I'll come back to another aspect of this interview

2 in a moment, but looking at the penultimate paragraph on

3 RNI-226-069 (displayed), you say that at the conclusion

4 of the interview, you say that you were extremely

5 unhappy about the requesting of statements from accused

6 officers in this manner.

7 So as you indicated this morning, there are two

8 issues in play here. There is the fact of the

9 pre-prepared statement itself and then there is the fact

10 that, as you saw it, it had been requested by the

11 investigating officer?

12 A. Well, I became aware of that when this particular

13 detective constable stated that.

14 Q. Yes, because the note here says:

15 "This is the statement you had asked me for"?

16 A. Yes, and he used the investigating officer's first name.

17 Q. Yes. Can I ask you this question: Was this the first

18 occasion on which you had expressed your concern to the

19 investigating officer about this practice of producing

20 pre-prepared statements?

21 A. I believe so. I think -- yes, I believe so.

22 Q. And you were, as you say, very unhappy or extremely

23 unhappy about it, and you say at the very end of the

24 note that you discussed it with Mrs Mitchell and agreed

25 that a letter be written. We will come to that in

 

 

137

 

1 a minute:

2 "This sort of carte blanche approach not only

3 undermines the rest of the investigation at hand, but

4 indeed the ICPC role and status as the public supervisor

5 of this very high profile complaint."

6 Now, your irritation at what had happened in the

7 interview was, it seems, exacerbated by the information

8 passed on to you that a very senior officer, who was due

9 to be interviewed, DCI -- then the name is redacted --

10 was preparing a similar statement for a subsequent

11 interview?

12 A. Yes, it seemed that the investigating officer, without

13 consultation with me, was basically effecting his own

14 investigation. That included soliciting pre-prepared

15 statements.

16 Q. You refer there to this "very high profile complaint".

17 This is March 1998. So, again, this is something in

18 your mind when you are considering how to deal with the

19 supervision of the investigation?

20 A. Of course.

21 Q. Yes. In your statement, but not in these notes, you say

22 that this same officer arrived at the interview smelling

23 of alcohol?

24 A. Yes, that's correct.

25 Q. And in your statement at paragraph 54 -- and ideally, I

 

 

138

 

1 would like you to look at that in the hard copy, please,

2 so we can keep this on the screen?

3 A. Yes, that's fine.

4 Q. You say:

5 "He smelt like he had been drinking beer."

6 How did you know that?

7 A. I recognised the smell.

8 Q. Yes. Were there any other obvious signs that he had

9 been drinking?

10 A. He wasn't slurring words or anything of that nature, if

11 that's what you mean.

12 Q. So was there anything else?

13 A. Well, in terms of his approach to the interview and the

14 answers that he gave, he was confused about the answers

15 that he gave to the investigating officer.

16 Q. Could they not have been the answers of a confused but

17 sober man?

18 A. Yes.

19 Q. So are you saying that he was drunk?

20 A. I'm saying that he smelt of alcohol.

21 Q. Yes. Now, that isn't recorded in any of the notes,

22 is it?

23 A. No, it is not, and I have indicated in my statement that

24 it was a mistake not to record that.

25 Q. Because a lot of your notes contain a good deal of

 

 

139

 

1 detail, for example, physical descriptions of officers,

2 rather pithy references to height, appearance, clothing,

3 et cetera, but there is no reference here to something

4 which was actually rather important, wasn't it?

5 A. Yes, I would accept that.

6 Q. Not least because there might, presumably, have been

7 a disciplinary aspect to an officer facing a complaint

8 interview turning up drunk?

9 A. I didn't say that he was drunk, I said that he smelt of

10 alcohol.

11 Q. But it was a significant matter?

12 A. It was, and I repeat that I should have committed it to

13 writing but I didn't.

14 Q. And you didn't raise it with the investigating officer

15 either, did you?

16 A. No, I think I discussed it with Mrs Mitchell.

17 Q. Sorry?

18 A. I think I raised it with Mrs Mitchell.

19 Q. Yes. But, again, with hindsight, wouldn't it have been

20 better to raise your concern on this topic with P146?

21 A. Yes, it would have.

22 Q. In the meeting of the Commission on 28 March -- at

23 RNI-222-009 (displayed) -- you again raised concerns

24 about this investigating officer, and we can see that in

25 paragraph 7.2 on RNI-222-010 (displayed). And you say

 

 

140

 

1 that --

2 A. Sorry, I do not have that.

3 Q. RNI-222-010. You say at 7.2 that in a particular case

4 you were supervising:

5 "... the investigating officer was not complying

6 with her directions."

7 Do you see that on the left-hand side?

8 A. It has just come up on the screen. If you could just

9 refer me again to the section?

10 Q. 7.2. Do you see it?

11 A. Yes, I do.

12 Q. "Since this officer had been brought to the Commission's

13 attention previously ..."

14 You have seen the earlier minutes:

15 "... the Chairman asked Miss McNally to keep the

16 Commission informed."

17 A. Yes, I do see that.

18 Q. You mentioned disobedience to your directions. Do you

19 mention the particular difficulties, in relation to

20 either the pre-prepared statements or the fact that an

21 officer had turned up having been drinking, in this

22 report to the Commission?

23 A. I can't be any clearer than that, I am afraid.

24 Q. So what did you mean by "not complying with directions"?

25 A. Well, it must have been in relation to pre-prepared

 

 

141

 

1 statements, but I can't remember exactly what I said to

2 the meeting on that occasion.

3 Q. But in terms of this investigating officer, I think you

4 would agree that you hadn't raised that point with him

5 before, had you?

6 A. In relation to the pre-prepared statements?

7 Q. Yes.

8 A. No, but it was later embodied in correspondence to his

9 superior officer.

10 Q. But that correspondence -- I mean, you wrote, I think,

11 on 20 March to the Superintendent?

12 A. Yes.

13 Q. He responded, I think, in April?

14 A. Yes. But, I mean, I raised contemporaneously -- and you

15 will see from my minute that you have referred me to

16 dated 19 March, I spoke to the investigating officer in

17 person and expressed --

18 Q. Expressed your dissatisfaction.

19 A. That is very clear, yes.

20 Q. Showing you now the Superintendent letter -- that is

21 RNI-209-058 (displayed) -- I think you set out in there

22 your various concerns, and --

23 A. I'm sorry that is not coming up.

24 Q. No, it hasn't, and it may be a wrong reference.

25 RNI-209-258 (displayed)? Yes, there it is. It is

 

 

142

 

1 20 March, do you see?

2 A. I do, yes.

3 Q. So those were the concerns that you had at the time. It

4 reads on to RNI-209-259, if we could have that up on the

5 screen, please, (displayed) and it is copied to both the

6 officer and to the Assistant Chief Constable. That's

7 the point you remembered and made to me this morning?

8 A. That's correct.

9 Q. Thank you. Can I ask you this: did you ever write in

10 similar terms -- in other words, by way of formal --

11 I know you didn't like the word "complaint" -- but by

12 way of formal statement of concerns in relation to any

13 other investigating officer?

14 A. Outside of this?

15 Q. Yes.

16 A. There would have been other occasions, yes.

17 Q. There were?

18 A. Yes, before this or subsequent to it, during my duration

19 at the Commission.

20 Q. You are not sure when?

21 A. I can't say with certainty.

22 Q. Now, so far as the Commission is concerned, you talk in

23 your statement about whether or not and the extent to

24 which your experiences were shared by your colleagues,

25 and we had a discussion about this this morning.

 

 

143

 

1 So can I ask you to look, please, at that passage of

2 your statement at paragraphs 43 to 47 -- that's at

3 RNI-813-823 (displayed) -- because I want to make sure

4 is that we are clear about this? First of all, at

5 paragraph 43, you say:

6 "There were other investigating officers with whom

7 members of the Commission had concerns in addition to

8 P146. The main concerns were ..."

9 Then various examples are given of not complying

10 with directions and being discourteous to members of the

11 Commission.

12 Are you able to help with this: do you know whether,

13 in any of those cases -- in other words, your

14 colleagues' cases -- similar letters, i.e. formal letters

15 raising concerns or complaints, were written?

16 A. I don't know.

17 Q. No. As I understand it, your experience of having

18 concerns, some dissatisfaction with an investigating

19 officer was one that had been also had by other

20 colleagues on the Commission?

21 A. That was my understanding, yes.

22 Q. In this same section of your statement, however, you

23 talk about negative behaviour, and in particular in

24 paragraph 45 because you are there saying that there

25 were some investigating officers who stopped negative

 

 

144

 

1 behaviour?

2 A. That's correct, yes.

3 Q. Can I take it that that was negative behaviour towards

4 you and in your presence?

5 A. That's correct, yes.

6 Q. Now, you say that that sort of behaviour was occurring

7 on a regular basis?

8 A. Yes.

9 Q. Can you help us with what shape or form the negative

10 behaviour took?

11 A. I guess comments and, in terms of my being present at

12 supervised interviews, hostility to my remaining in the

13 room, that sort of thing.

14 Q. Now, in relation to this sort of behaviour, am I right

15 in thinking that it was occurring perhaps every time you

16 went to an interview or once every few occasions? How

17 regularly was it occurring?

18 A. Again, I can't say with certainty, but I guess a better

19 way of looking at it is I just took it to be part of the

20 approach when I turned up for supervised interviews.

21 Q. But this sort of experience was not, I think, one that

22 was shared by your fellow members of the Commission; is

23 that correct?

24 A. Yes, I think that's correct.

25 Q. So that, whereas you tell us that they experienced

 

 

145

 

1 difficulties of various kinds with investigating

2 officers, when it came to the behaviour you have

3 described, which is the behaviour of police officers

4 against whom complaints were being made in interviews,

5 that was something which was, as far as you were aware,

6 unique to you?

7 A. As far as I am aware, yes.

8 Q. And in paragraph 47, you make a comment about that. You

9 say:

10 "After Commander Mulvihill's investigation, such

11 behaviour did not continue as edicts were issued to

12 police officers which detailed the procedure to be

13 adopted when a complaint was made against you and how

14 those involved in the complaint were expected to

15 behave."

16 So did this also emerge from the working party?

17 A. It did, yes.

18 Q. Thank you. We have obviously heard a great deal about

19 what you did in relation to the conduct of the

20 investigation of this investigating officer. Did you

21 yourself complain about this sort of negative behaviour

22 in other cases?

23 A. I drew any concerns that I had, that I felt were

24 appropriate, to the Commission's meetings and to the

25 Chairman at various stages.

 

 

146

 

1 Q. Now, you give an example at RNI-813-836 (displayed).

2 You give an example of three police stations where you

3 experienced a degree of hostility and you give an

4 example of a comment that was made?

5 A. Yes.

6 Q. You say that:

7 "The general hostility first began approximately two

8 months after [you] had begun [your] role."

9 I think that was in June 1997, roughly?

10 A. In or about, yes.

11 Q. And that is the sort of behaviour, is it, that you have

12 been talking about?

13 A. It is, yes.

14 Q. Are you able to say -- it may be that you can't -- why

15 you think you were on the wrong end of that sort of

16 behaviour, whereas your colleagues were not?

17 A. I can't say.

18 Q. No. You say that you mentioned them to, I think you

19 said, the Chairman; is that right?

20 A. Mentioned?

21 Q. This sort of behaviour.

22 A. Yes, I would have drawn it formally to the Commission's

23 attention and to his attention.

24 Q. Was anything done to take up those complaints or that

25 concern by the Commission with, for instance, the

 

 

147

 

1 Assistant Chief Constable who was head of the branch?

2 A. I am not aware of that. I'm not aware that of, no.

3 Q. And was a reference to it or to the phenomenon of that

4 sort of hostile behaviour ever made in any Commission

5 document, for example, in the annual report?

6 A. In terms of hostility towards Commission members?

7 Q. Yes.

8 A. Not that I am aware of, but you may correct me on that.

9 Q. Do you think there should have been some reference to

10 generally hostile behaviour of that kind?

11 A. To my mind it was a factor, but as I have said, I got on

12 with my job and dealt with it.

13 Q. Thank you. Would you just give me a moment?

14 A. I will, of course. (Pause)

15 DAME VALERIE STRACHAN: While Mr Phillips is doing that,

16 could I just ask a question to which I ought to know the

17 answer? How old were your fellow members of the

18 Commission compared with yourself?

19 A. When I was appointed I was just gone 27, and to be

20 generous to my other colleagues, I would have imagined

21 most of them to be mid to late 50s, early 60s and older.

22 I mean, I'm generalising, much older --

23 DAME VALERIE STRACHAN: In an order of magnitude, it sounds

24 reasonable?

25 A. Yes.

 

 

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1 DAME VALERIE STRACHAN: Thank you.

2 A. Thank you.

3 MR PHILLIPS: Miss McNally, those are all the questions

4 I wanted to ask, but as you probably know, before

5 I finally finish, I always offer the witness a chance to

6 raise anything that you want to. So this is your

7 moment. If you would like to make a comment or say

8 anything to the Panel, this is your chance.

9 A. Thank you. Nothing other than to wish you well with the

10 remainder of the Inquiry.

11 Questions by SIR ANTHONY BURDEN

12 SIR ANTHONY BURDEN: Just a couple of points from me, if

13 I may.

14 A. Yes.

15 SIR ANTHONY BURDEN: Writ large in the title of the

16 Commission is the word "independent".

17 A. Yes.

18 SIR ANTHONY BURDEN: I know I'm seeking your subjective

19 views, but did you ever gain the impression that there

20 was a cosier relationship between the RUC and the ICPC

21 than was appropriate?

22 A. I can only speak for myself.

23 SIR ANTHONY BURDEN: Yes.

24 A. My experience wasn't a cosy one, but I think there

25 probably was a close working relationship in advance of

 

 

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1 my appointment, if you like, and I think I talked about

2 fresh blood being introduced into the Commission body.

3 That may well have been reflected in that way.

4 SIR ANTHONY BURDEN: Did that impact nevertheless on the

5 independence of the Commission?

6 A. I think it could have been perceived to be that way,

7 yes.

8 SIR ANTHONY BURDEN: My second point is one around which

9 Mr Phillips has explored deeply, and that is this

10 hostility which you faced --

11 A. Yes.

12 SIR ANTHONY BURDEN: -- at three stations, one of which was

13 Lurgan, as I see. Just to make it perfectly clear and

14 for the record, the hostility that you faced involved

15 officers where it was not a common complaint?

16 A. Yes.

17 SIR ANTHONY BURDEN: One complaint. It extended over some

18 considerable time?

19 A. It did.

20 SIR ANTHONY BURDEN: So that would suggest that you were

21 targeted in some way?

22 A. I'm not sure that I was targeted, but that was certainly

23 my experience.

24 SIR ANTHONY BURDEN: It would suggest to me -- and I ask for

25 your comments on this -- that Geralyn McNally's name was

 

 

150

 

1 obviously passed between officers concerning your

2 attitude or alleged attitude.

3 A. That may well be possible.

4 SIR ANTHONY BURDEN: Okay, thank you.

5 A. You are welcome.

6 THE CHAIRMAN: Miss McNally, thank you very much for -- are

7 you about to stand up, are you?

8 MR DONALDSON: Yes. You will be aware that I did furnish

9 some lists of questions for consideration by the Panel.

10 May I enquire if you did receive those, sir?

11 THE CHAIRMAN: We have received those questions, and the

12 question I'm going to ask you is are there any questions

13 that have not been asked that you wish to be asked?

14 MR DONALDSON: Yes, sir.

15 THE CHAIRMAN: Right. Have you discussed those questions

16 with Miss McNally's leading counsel, Mr Eugene Grant?

17 MR DONALDSON: No, I haven't.

18 THE CHAIRMAN: Well, before we hear any submission from you

19 about the appropriateness of those questions, would you,

20 please, discuss those particular questions with Mr Grant

21 and, if appropriate, also with Mr Phillips?

22 MR DONALDSON: May I say so, sir, I don't think it is

23 appropriate for me to have to do that.

24 THE CHAIRMAN: That is my ruling as Chairman of the Inquiry.

25 MR DONALDSON: Yes.

 

 

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1 THE CHAIRMAN: We will adjourn now for a quarter of an hour.

2 (3.08 pm)

3 (Short break)

4 (3.25 pm)

5 THE CHAIRMAN: Yes, Mr Donaldson?

6 Application by MR DONALDSON

7 Submissions by MR DONALDSON

8 MR DONALDSON: Sir, I have spoken to both counsel involved,

9 Mr Phillips and Mr Grant, and after very careful

10 consideration, we would make the following short

11 submission.

12 Under the existing protocols, we are obliged to

13 submit lists of questions in writing to counsel for the

14 Tribunal, which we have done carefully and assiduously.

15 Latterly, it has become more refined, as I indicated

16 before, in that Tribunal counsel have kindly agreed to

17 indicate in advance which questions they will ask and

18 which questions they will not ask.

19 So, therefore, in relation to that, we didn't

20 consider it appropriate that we should seek the view of

21 counsel for a non-participant in relation to the

22 questions because the protocol makes it quite clear that

23 if Counsel for the Inquiry is not prepared to ask the

24 questions, then it is a matter for the Panel, for you,

25 sir, and your colleagues.

 

 

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1 THE CHAIRMAN: Yes.

2 MR DONALDSON: And we intend no disrespect when we say that

3 we would prefer, whatever you may decide, not to discuss

4 the matter with Mr Grant.

5 I have advised Mr Grant of what our view is in

6 relation to that because it is outwith the protocol.

7 And quite apart from anything else, it would be a rather

8 difficult procedure to follow if I discussed with

9 Mr Grant and say, "I would like these 12 further

10 questions to be asked", which were not asked, and

11 Mr Grant said he didn't agree, well, that's really the

12 end of the matter, as far as I would be concerned and it

13 is, therefore, a matter for you.

14 So, therefore, again with no disrespect to Mr Grant,

15 it would still be our view that the questions should be

16 asked. We, therefore, invite the Panel now to decide

17 one way or the other --

18 THE CHAIRMAN: Mr Donaldson, do you or do you not think it

19 would be fair, where a witness is represented by

20 counsel, that his views should be sought as to the

21 fairness or otherwise of asking the proposed questions?

22 MR DONALDSON: Not really, sir. I think it is a matter for

23 Counsel for the Tribunal, and you can decide whether it

24 is fair or not that the questions should be asked.

25 THE CHAIRMAN: Oh, yes. It is a different question that I

 

 

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1 was putting to you: whether it was fair that the views

2 of counsel for a particular witness, that he should be

3 allowed in appropriate cases to state his views as to

4 whether it is fair and appropriate that the witness be

5 asked the particular questions sought to be asked by

6 a Full Participant.

7 MR DONALDSON: Sir, I don't think that it is unfair because

8 on any normal proceedings one doesn't even receive

9 advance notice of questions that are going to be asked.

10 And I don't think it is unfair, and we don't feel that

11 we should get involved in discussions with counsel for,

12 indeed, any participant. It is a matter entirely for

13 Mr Phillips and the Panel.

14 THE CHAIRMAN: Thank you, Mr Donaldson.

15 Mr Phillips, what are your submissions on this

16 point?

17 Submissions by MR PHILLIPS

18 MR PHILLIPS: May I say, sir, first of all, that I think it

19 is time to put on the record the impact of the questions

20 we are receiving. We received in all a total of 145

21 questions from Full Participants and others, of which we

22 have put or covered, we believe, no less than 120.

23 So far as the particular questions from the PSNI as

24 a Full Participant are concerned, as my learned friend

25 points out, we did indeed give an advance indication and

 

 

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1 we have honoured it in all of the cases where we said we

2 would put or cover matters that he raised.

3 In addition, however, in fact in the course of the

4 questioning we have covered further of his questions.

5 So the space between us is now a much narrower one.

6 I have looked again at the questions which, as it

7 were, remain outstanding between us and my views remain

8 as they were. They are not matters that will advance

9 the Inquiry. They are either irrelevant or not proper

10 questions in the sense that they will not elicit, and

11 could not possibly elicit, testimony relevant to your

12 investigation.

13 Sir, so far as the question of involvement of the

14 representative of the witness is concerned, I have also

15 had the chance to discuss it with my learned friend,

16 Mr Donaldson. My submission would simply be this: That

17 if a Full Participant or, indeed, anyone else wishes to

18 put further questions to a witness and that witness is

19 represented in the chamber, fairness does indeed suggest

20 that the representative should be aware of the

21 questions; in other words, should know what the

22 submission is about.

23 Sir, that is all I wanted to say.

24 THE CHAIRMAN: Thank you.

25 On the matter of principle, Mr Grant, is there

 

 

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1 anything you wish to say?

2 MR GRANT: No, Mr Chairman, thank you.

3 THE CHAIRMAN: Thank you. (Pause)

4 Mr Donaldson, we would like to hear what you say in

5 reply to what has been said by Mr Phillips, and if you

6 could particularly tell us exactly which questions you

7 submit still require answering.

8 MR DONALDSON: Yes, sir.

9 THE CHAIRMAN: Just give us the numbers, would you?

10 MR DONALDSON: Yes, I will indeed.

11 THE CHAIRMAN: Don't read them out, just the numbers.

12 MR DONALDSON: Yes, give me just a little time and I will

13 perhaps shorten it a bit too. (Pause)

14 Question 16.

15 THE CHAIRMAN: Thank you.

16 MR DONALDSON: 17, 18, I suppose, to a lesser extent,

17 although not terribly important. Question 21, very

18 important.

19 THE CHAIRMAN: 21, thank you.

20 MR DONALDSON: 23, 31, as important, 35, 42. Those are the

21 main ones. I'm not actually putting in, as you can see,

22 all the "no" answers. I have refined that a bit to

23 include a limited number of what we regard as important

24 questions.

25 THE CHAIRMAN: Thank you. We shall retire to consider your

 

 

156

 

1 submissions, Mr Donaldson.

2 MR DONALDSON: Thank you.

3 (3.38 pm)

4 (Short adjournment)

5 (4.00 pm)

6 Ruling

7 THE CHAIRMAN: Mr Donaldson, we are grateful for your

8 submissions. We have decided that question 21 is

9 a question that should be asked by Mr Phillips of

10 Miss McNally. We are entirely satisfied that asking

11 that question will not result in any unfairness to

12 Miss McNally and, therefore, we do not ask Mr Grant for

13 submissions on it.

14 Apart from that one question, we are satisfied that

15 Miss McNally has been comprehensively and rigorously

16 questioned by Mr Phillips and that the further

17 questioning sought by Mr Donaldson would not help us in

18 our inquiry.

19 Mr Phillips, would you please ask a question in

20 relation to question 21?

21 MR PHILLIPS: Yes, sir.

22 Miss McNally, can you look, please, at a document at

23 RNI-226-074 (displayed). I would like to have both

24 pages of the document on the screen, please, so that

25 means RNI-226-075 as well (displayed).

 

 

157

 

1 If you still have your hard copy statement, can

2 I suggest, please, that you look at paragraph 60, which

3 is at RNI-813-829.

4 A. Yes.

5 Q. Looking first, please, at the note, this is a note of

6 a meeting in the context of the Duffy complaints, I

7 think, isn't it?

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

9 Q. And we can see the attendees on 3 April included the

10 Assistant Chief Constable himself, the Superintendent

11 and, in due course, the interviewee. And, again, you

12 and I have encountered him before in our questions

13 because he was the more senior officer who you were

14 told, if you remember, was intending to produce

15 a pre-prepared statement?

16 A. Yes, that's correct.

17 Q. Thank you. You set out your notes here and you sign it

18 at the bottom of the following page, so can I take it

19 that you made these notes after the interview had taken

20 place?

21 A. Yes, that would have been my normal procedure.

22 Q. Thank you. And it sets out not question and answer, but

23 in reasonable detail, doesn't it, the areas covered by

24 the questions and the answers given to them by the

25 officer?

 

 

158

 

1 A. Yes, that would have been my summary and based on my

2 observations of the interview.

3 Q. Yes. Now, can I ask you to look with that in mind at

4 your statement and paragraph 60?

5 A. Yes.

6 Q. You say there:

7 "Despite the concerns I had expressed to the

8 Superintendent a few days earlier, he turned up to the

9 interview with a statement."

10 Again, that is the point we mentioned?

11 A. Yes, we did.

12 Q. But it looks as though this was an occasion at which the

13 interview proceeded and, indeed, he did, as you say,

14 answer all of the questions that were put to him?

15 A. Yes, the interview proceeded. The interview was

16 conducted by ACC Stewart and I have recorded that it was

17 a satisfactory interview.

18 Q. Indeed. So it was actually conducted by the head of the

19 relevant branch; is that right?

20 A. That's correct, yes.

21 Q. So no complaint on your part then in relation to the

22 interview itself, but you in your statement add this:

23 "It is evident from my note, the general approach he

24 described in relation to interview procedure indicated

25 to me that there was some substance to Mr Duffy's

 

 

159

 

1 complaint."

2 Now, can I ask you, please: what was it about what

3 was said in that interview that indicated to you that

4 there was some substance to the complaint?

5 A. Well, that is a personal opinion that I have expressed.

6 I think it related to the delay in affording access to

7 Mr Duffy from his solicitor. I think I detail that

8 perhaps on the second page of the note in relation to

9 a request having been made at an earlier stage to delay

10 interviewing.

11 Q. Is that in the first full paragraph beginning:

12 "He, interestingly ..."?

13 A. Yes.

14 Q. Is that an occasion on which you intervened in the

15 interview?

16 A. Yes, I did.

17 Q. So this is an occasion of you intervening in the middle

18 of an interview?

19 A. Yes, that's correct.

20 Q. Now, when you were telling us earlier about your

21 function as a supervising member of the ICPC, you

22 accepted from me a distinction between your role and the

23 investigating officer, didn't you?

24 A. Yes, that's correct.

25 Q. It was no part of your business to decide whether the

 

 

160

 

1 complaint was well founded or not, was it?

2 A. That's correct.

3 Q. And it would have been no part of your business, either

4 at this interview or afterwards, to express an opinion

5 as to whether or not there was substance to the

6 complaint?

7 A. It had no bearing on the eventual outcome, no.

8 Q. Now, do you think that the fact that in your statement

9 you have expressed your personal view about this

10 indicates any partiality on your part, any prejudice, in

11 relation to the substance of the Duffy allegation?

12 A. I don't believe it does, no.

13 Q. But given the limits of your role as a supervising

14 member, it is unfortunate, isn't it, that you have

15 expressed a view there about the substance of the

16 allegation?

17 A. I'm not sure that I agree with that.

18 Q. But it certainly would have been unfortunate -- do you

19 at least accept this? -- had any view you may have had

20 about the substance of the allegation influenced in any

21 way your conduct as supervising member in relation to

22 this complaint?

23 A. That's not the case.

24 Q. But it would have been quite wrong, wouldn't it?

25 A. It would have been, yes.

 

 

161

 

1 Q. Thank you.

2 THE CHAIRMAN: Miss McNally, thank you very much for coming

3 to give evidence before us. We are very grateful. You

4 may go.

5 A. You're most welcome. Thank you.

6 THE CHAIRMAN: Mr Eamon Stack is ready to give evidence, so

7 if you could vacate your place and Mr Stack will take

8 your place.

9 MR EAMON STACK (sworn)

10 Questions by MR SKELTON

11 THE CHAIRMAN: Please sit down.

12 Yes, Mr Skelton?

13 MR SKELTON: Mr Stack, we have 35 minutes. I am afraid you

14 may be held over until next week.

15 A. That's okay.

16 Q. But I will do my best.

17 You have made a statement to the Inquiry and that

18 can be found at RNI-820-057, if we could have that first

19 page on the screen (displayed). And if we scroll

20 through to page RNI-820-078 (displayed), you can see

21 your signature and the date there, 22 May last year.

22 That is your statement; is that right?

23 A. That's correct.

24 Q. May I start by asking about your background? You were

25 a Jesuit priest during the 1990s?

 

 

162

 

1 A. That's correct.

2 Q. When had you first joined the order?

3 A. I joined the Jesuit order in Dublin in 1983.

4 Q. And what was your connection with Portadown, your

5 subsequent connection, in the 1990s?

6 A. Well, just to say during my training, between 1983 and

7 1995, I visited Portadown several times and I spent, in

8 1984, five weeks in the Jesuit community in Portadown

9 and, again, subsequently two years later. So I had

10 spent the summer in Portadown. I was aware of the

11 situation during those years.

12 Q. When did you become active in the local community there?

13 A. I finished -- I finished my -- that part of my formal

14 training in 1983. The previous two years I had been in

15 Venezuela, and when I returned to Ireland I was formally

16 appointed to the Jesuit community in 1991.

17 Q. Where were you based?

18 A. I was based in 211 Churchill Park, just off the

19 Garvaghy Road.

20 Q. You mention in your statement in paragraph 2 that you

21 did some work for the Churchill Park Estate. What was

22 that?

23 A. Part of the project I was involved in was the Drumcree

24 Community Cooperative, and in the previous years

25 a community centre had been built and it was a centre of

 

 

163

 

1 community activities. So I was a committee member in

2 the Drumcree --

3 Q. Mr Stack, you speak rather fast and the stenographer has

4 take down all your words. If you could you slow down

5 slightly?

6 A. No problem.

7 Q. You were saying you were helping with the community

8 centre there?

9 A. That's right, yes.

10 Q. What kind of work, briefly, was that?

11 A. I was co-editor of a local newspaper, the Drumcree News,

12 and I was also a committee member of the community

13 centre, so I was involved in all the administration.

14 I also worked in a faith and justice group, the Drumcree

15 Faith and Justice Group, and I was the secretary of that

16 group that campaigned on justice issues in the area.

17 Q. Were these all Catholic groups?

18 A. Yes, they were Nationalist groups. So, yes, and the

19 Nationalist community obviously is Catholic. By

20 definition, I think they would be more properly defined

21 as Nationalist community groups.

22 Q. And the Drumcree Faith and Justice Group, briefly what

23 was that for?

24 A. I think it is important to tell you the context here,

25 that during the experience of the conflict in the state,

 

 

164

 

1 people were divided of those who supported the violence

2 and also objected to it in principle. And, therefore,

3 the community was divided. And the purpose of the

4 Drumcree Faith and Justice Group was to demonstrate how

5 we could deal with the same issues of concern by the

6 community, justice issues, through peaceful means rather

7 than resorting to violence.

8 Q. How did the group intend to do that?

9 A. Well, the group showed that there is a range of means of

10 dealing with any particular conflict.

11 The one that we're focusing on here is the parading

12 conflict, but there were other issues. There were

13 internal community issues and so on, but in terms of

14 parading conflict it is important to engage with all of

15 the stakeholders, for instance, writing letters to the

16 state, writing letters to the police, campaigning with

17 politicians. There was a systematic way of engaging all

18 the stakeholders, trying to present the issues and

19 trying to establish a common basis on which we could

20 argue for a resolution, a peaceful resolution to the

21 conflict.

22 Q. What was your role in particular?

23 A. In the Drumcree Faith and Justice Group, I was just -- I

24 was the secretary, so I maintained the records and

25 I helped sometimes to compose the letters we wrote to

 

 

165

 

1 the police and to the politicians, and then to be

2 involved in looking for -- kind of create a peaceful

3 means to express the concerns of the community, that

4 parading issue in Portadown.

5 Q. In your statement, you draw a distinction between

6 moderates and militants. Could you just explain the

7 difference, please, between those two groups?

8 A. Yes. I mean, we do our best to use language to describe

9 the situations and the language isn't perfect, but the

10 best I can say is that the militants in the community

11 are those who feel so strongly about a particular

12 situation that they would be willing to resort to

13 violence to resolve it, whereas the moderates would

14 never -- in principle, they would never resort to

15 violence.

16 If there was a pacifist group, they would exclude it

17 under any circumstances, but moderates generally would

18 see violence as a very last resort, which is normally

19 the position of the state, that violence is a last

20 resort measure to resolve any conflict.

21 Q. From your perspective, does that translate into a party

22 political distinction in terms of Nationalist parties?

23 A. That's right. I think it is common knowledge then that

24 the SDLP would have been a moderate party and objected

25 to the violence, whereas Sinn Fein represented people,

 

 

166

 

1 some of whom who actually would have advocated violence

2 as a way of resolving the conflict.

3 Q. May we turn now to the formation and role of the GRRC?

4 First of all, when did it emerge as a cohesive group?

5 A. In 1994 after the ceasefire. This was very significant

6 for the community. In the pre-ceasefire situation, it

7 wasn't possible then for a Nationalist community to have

8 an united campaign because, you know, one group, the

9 moderates, objected to the violence in principle,

10 whereas others didn't object to violence in principle,

11 although they wouldn't obviously advocate violence in

12 every circumstance. But there was a principle here that

13 divided the community and, therefore, prior to the

14 ceasefire, if it is okay for me to continue in this

15 line --

16 Q. If I may take you through it a bit more slowly. Were

17 you there from its inception?

18 A. The Garvaghy Road Residents Coalition, I was indeed, I

19 was a founder member.

20 Q. What was your role in it?

21 A. I was the secretary of the Garvaghy Road Residents -- it

22 started off, its name was the Garvaghy Road Residents

23 Group and then changed its name to the Garvaghy Road

24 Residents Coalition to reflect the fact that it was a

25 coalition of diverse groups.

 

 

167

 

1 Q. Was it formed from a democratic vote in the community?

2 A. No, it was an ad hoc representation from the various

3 residents associations within the area, which themselves

4 were ad hoc groups.

5 THE CHAIRMAN: Mr Stack, if could you watch the

6 stenographer's fingers and hands, you might understand

7 that you are putting a great strain on her. She has got

8 to do about, I don't know, 200 words to the minute.

9 A. Okay, I apologise.

10 THE CHAIRMAN: Could you slow down a bit?

11 MR SKELTON: Now, how did this cross-section of the

12 community coalesce into this group?

13 A. Again, prior to 1994 there were active campaigns to try

14 and resolve the parading issue. The Drumcree Faith and

15 Justice Group had actively campaigned and then there had

16 been other poster campaigns run by Sinn Fein and by

17 other members.

18 In 1994, there was a suggestion that a group come

19 together and look at the possibility of forming a united

20 campaign.

21 Q. Who were the prime movers behind that suggestion?

22 A. Probably the Drumcree Faith and Justice Group and other

23 community leaders, which included

24 Breandan Mac Cionnaith, Joanna Tennyson and other people

25 whose names I prefer not to mention.

 

 

168

 

1 Q. What was Breandan Mac Cionnaith's role?

2 A. He was a community leader in the Park View Estate area

3 and he just participated like the others, and he was

4 like myself, he was very articulate and very interested,

5 articulate and interested in resolving the issue by

6 political means. So he emerged then over the next year

7 as the leader of the group.

8 Q. And he was also its spokesperson; is that correct?

9 A. No, at first I was the spokesperson, but then as time

10 went on he was selected as the spokesperson.

11 Q. By 1997 were you still the spokesperson or had it

12 changed by then?

13 A. It changed. It changed in 1996.

14 Q. Why was that?

15 A. I think it is competence. He was -- he obviously had

16 a local accent. He was a local man. He was obviously

17 particularly articulate. So I think he was the best

18 person for the job.

19 Q. He didn't speak as fast?

20 A. Possibly. And he didn't have a southern accent, which

21 sometimes didn't help.

22 Q. You say in your statement that Breandan Mac Cionnaith

23 had some good contacts because he had been imprisoned

24 and was a man of real integrity. That is at paragraph 9

25 if you want to look at the reference.

 

 

169

 

1 What do you mean by that?

2 A. I'm -- certainly, he was a man of real integrity. He is

3 a very intelligent man and he --

4 Q. First of all, the point about good contacts and prison,

5 what does that mean?

6 A. I'm -- I'm not sure that is how I would express my

7 opinion. I think that may be a mistake in transcribing

8 that particular statement because you could infer,

9 I mean, that he made good contacts in prison and that's

10 not what I mean.

11 He had been involved in Sinn Fein for a certain

12 number of years and he had actually withdrawn from the

13 party and, therefore, he knew a wide number of people

14 across the spectrum of supporters who sometimes in the

15 public eye are classified as all Sinn Fein. But in fact

16 no one person or party is completely homogeneous and he

17 actually split from the other members of Sinn Fein

18 within Portadown because of his intellectual views, that

19 they didn't represent what he believed in as

20 a Nationalist and their approach wasn't politically

21 sensible.

22 Q. Now, at the end of your statement you mention in

23 passing -- and this is at paragraph 72 -- that you knew

24 that Mr Mac Cionnaith had been in the IRA. How did you

25 know that?

 

 

170

 

1 A. He had been gaoled and convicted and had served time in

2 the Maze, I believe.

3 Q. This was in 1981?

4 A. That's correct, yes.

5 Q. So you knew that as a matter of public record, did you?

6 A. That's right.

7 Q. Did you also discuss his previous membership of the IRA?

8 A. No, I didn't. I never, ever discussed the IRA with

9 Mr Mac Cionnaith.

10 Q. Turning to the issue of the GRRC and its political

11 relationships with other groups, you mentioned earlier

12 the GRRC contained a mixture of moderates and militants.

13 What was its overall stance in relation to violence?

14 A. I think it was absolutely clear, and this is why its

15 foundation after the ceasefire made it possible to form

16 a cohesive united campaign because at that point nobody

17 advocated violence as a way of resolving political

18 conflict and political difference. Therefore,

19 a pre-condition for the Drumcree Faith and Justice Group

20 joining in this coalition is that everybody, each party

21 to the coalition, absolutely committed themselves to

22 using exclusively peaceful means. And I think that --

23 the fact of our involvement, the Drumcree Faith and

24 Justice Group and my own personal involvement as

25 a Catholic priest, was a statement to that.

 

 

171

 

1 Under no circumstances would we be involved in

2 anything -- in any cause or any means of resolving

3 a conflict through violence. That had been the position

4 of the Drumcree Faith and Justice Group -- for the

5 previous ten years it had been -- you know, it had been

6 publicly evident. The personalities, the personalities

7 involved in the group also had a very long and clear

8 record of being absolutely committed to using

9 exclusively peaceful means to resolve political

10 conflict.

11 Q. You made the parallel earlier between the GRRC and the

12 wider peace process. Does that mean that you had, in

13 effect, militant members but they had signed up to

14 a peaceful coalition?

15 A. Correct.

16 Q. What was the GRRC's relationship with Sinn Fein?

17 A. There were members of the local Sinn Fein common on the

18 Coalition, and so -- our only relationship was there

19 were people -- community activists who on the one hand

20 were involved in the political common, who were also on

21 the Residents Coalition.

22 Q. And Joanna Tennyson would be one?

23 A. Joanna Tennyson would be one.

24 Q. Who else would be a member of Sinn Fein?

25 A. I think Joe Duffy.

 

 

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1 Q. What about the SDLP?

2 A. That's the -- one of the reasons I got involved was

3 because there was no representative of the SDLP,

4 political representative, in the Churchill Park and

5 Garvaghy Road area at the time. The only elected

6 representative was Councillor Fox, who was from Maghery,

7 which is about eight miles outside Portadown. So there

8 was no elected representative of the SDLP.

9 Q. What about Brid Rogers?

10 A. She was in Lurgan, she wasn't in the local area.

11 Q. I would like to you explain a bit further your role

12 because you said you were a Jesuit priest, but at the

13 same time you clearly have a relationship with the SDLP.

14 How was that?

15 A. I just make a distinction. As a Jesuit priest, I would

16 have been precluded from being involved in a political

17 party. However, the SDLP represented the moderate

18 section of the community politically, and in the absence

19 of a political person to represent that moderate section

20 of the community, then there were myself and one or two

21 others from the Drumcree Faith and Justice Group who

22 represented that -- the views of the moderate members of

23 the Nationalist community in Portadown.

24 Q. In terms of your independence, did you on the GRRC try

25 and draw a distinction between yourselves and the

 

 

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1 mainstream political parties?

2 A. Yes -- I mean, sometimes the language we would use is we

3 were political with a small 'p'. We weren't involved

4 formally with any political party and were independent

5 of any political party.

6 Q. In your statement you talk about the fact that Mr Mac

7 Cionnaith and Mr Duffy became councillors independently?

8 A. That's correct, yes.

9 Q. Is that a manifestation of what you have just mentioned?

10 A. That's a manifestation of what I have just mentioned,

11 yes. And it was also an indication of the level of

12 support for the Garvaghy Road Residents Coalition in the

13 area. When they were elected, they received 93 per cent

14 of the votes of the ward of the -- for Craigavon Borough

15 Council.

16 Q. In your statement, you make the point at paragraph 37

17 that everyone else -- and that is excluding you and

18 presumably the other people you have mentioned -- were

19 terrified of representing political parties. Why was

20 that?

21 A. If you pause a moment --

22 Q. About two thirds of the way down on paragraph 37.

23 (Pause)

24 A. People -- I think it is part of the context that there

25 had been several murders in the Portadown area in the

 

 

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1 previous years and people were aware that there was

2 a very militant and violent, Loyalist, active group in

3 the area who targeted Nationalists who in any way

4 publicly represented the community. Therefore, for

5 anybody to put their head above the parapet in Portadown

6 representing a Nationalist view, they were by definition

7 in danger. And I think that is why it was so difficult

8 to find public representatives.

9 Q. Did you perceive there to be a link between the Orange

10 Order and Unionist mainstream politics?

11 A. Yes. Just de facto, David Trimble was at that point the

12 leader of the Unionist Party and he was publicly an

13 Orangeman.

14 Q. But you would maintain there weren't such parallel links

15 from your side?

16 A. Explain?

17 Q. You have drawn the distinction in your answers between

18 your independence as the GRRC, despite the fact that

19 some of your members have a relationship, and now you're

20 saying there is a relationship between the Orange Order

21 and unionism?

22 A. Absolutely. Politically speaking, the Orange Order is

23 a huge voting block in the north of Ireland. So they

24 would have huge political power and would influence who

25 would be elected in any particular area. And then many

 

 

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1 and most political leaders were publicly members of the

2 Orange Order, although there were a few exceptions, but

3 most were because of the power and the political

4 influence of the Orange Order.

5 Q. In terms of the paramilitary groups locally, what did

6 you know of Billy Wright and Mark Fulton at this time?

7 A. Personally, I had no involvement whatsoever with them,

8 but I was aware that they were the probable leaders of

9 the local UVF and they were probably responsible for

10 murders. Many murders in that area, frightening ones.

11 And some of the murders were particularly painful in

12 that the victims were young people who were just

13 culturally involved in the GAA or in music and were

14 victims of murder and violence. Very frightening.

15 Q. Did you see there being a particular association between

16 the paramilitaries and the issue of the Drumcree march?

17 A. Yes, these people were present on Drumcree for most of

18 the time during the Drumcree conflicts. Each summer

19 there were -- people in the Nationalist community

20 witnessed them and they were on television up at the

21 hill in Drumcree. So it was a very public presence.

22 They had a very public presence on the hill.

23 Q. Now, in paragraph 29, which is on page RNI-820-064

24 (displayed), you discuss the death of

25 Michael McGoldrick, a Nationalist?

 

 

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1 A. Yes.

2 Q. And you go on to say that the death indicates that the

3 Orange Order was corrupt in some way. What do you mean

4 by that?

5 A. I'm just trying to be careful with my language here

6 because it is a subtle point. My point is that if there

7 is a violent act that coincides with, say, the Drumcree

8 crisis here and that the violent act was clearly against

9 a Nationalist whose family was from Portadown, although

10 he himself was from Lurgan -- it was eight miles away --

11 it is reasonable to draw the conclusion that this is

12 a threat, this is a violent threat against the

13 Nationalist community. And at that time, I had hoped

14 that the Orange Order, the leadership of the Orange

15 Order in Portadown would clearly separate itself from

16 that act and would condemn it unequivocally and would

17 insist that people who were associated with that type of

18 Loyalist violence would leave Drumcree.

19 Instead, they did two things. One is they kind of

20 said it is nothing to do with us, it has nothing to do

21 with Drumcree, and they didn't ask those who were

22 commonly believed to have been responsible for this type

23 of murder to leave.

24 Q. So you are not in fact alleging that the Loyalists

25 themselves were members of the Orange Order? You are

 

 

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1 saying in fact that it was their attitude towards

2 Loyalist violence that was corrupt, in your word?

3 A. Correct.

4 Q. Did you know the local IRA personalities in your area?

5 A. No.

6 Q. You wouldn't have known who they were even by name?

7 A. I knew the families of some people who were in prison,

8 who were convicted of membership of the IRA and of arms.

9 So I knew the families, and as a priest sometimes I went

10 to the Maze to say mass. So I would have met some

11 people just briefly for five minutes, but other than

12 that I had no interaction with the IRA.

13 Q. Would other members of the Coalition have had such

14 interaction?

15 A. One member was married to one of these people.

16 Q. This, again, is Joanna Tennyson, is it?

17 A. That's correct, yes.

18 Q. In terms of the Drumcree dispute again, do you think the

19 Republicans saw themselves as having a role in resolving

20 or being behind the scenes in relation to that?

21 A. Absolutely not, other than the -- you know, the

22 Republicans, I presume you mean as an organisation,

23 represented by Sinn Fein? Am I correct? When you say

24 Republican, that's not a clearly defined --

25 Q. If you would like to define it for me, that would be

 

 

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1 helpful -- we sometimes have it with a small 'r' and

2 sometimes with large 'r' -- if there is a distinction?

3 A. I'm saying in no way had the Garvaghy Road Residents

4 Coalition any connection with Sinn Fein or the

5 Republican leadership, as such. However, as I have

6 explained, the community was made up of Nationalists and

7 Republicans and, therefore, any group claiming to

8 represent 93 per cent of that community obviously would

9 have to have, you know, a connection with republicans

10 with a small 'r'.

11 Q. When you say there was no connection, were you,

12 therefore, certain that Breandan Mac Cionnaith had left

13 the IRA at the time he was a spokesperson for your

14 group?

15 A. Absolutely, and I was also clear he had left Sinn Fein.

16 He was outside. He wasn't involved in Sinn Fein

17 politically because of an internal Sinn Fein dispute,

18 I believe, in the late 80s in Portadown and he left.

19 So he was -- yes, he was independent of Sinn Fein as

20 a political party and it was my belief that he didn't --

21 he had absolutely no connection whatsoever with the IRA.

22 Q. On 16 June 1997, two police constables were murdered in

23 Lurgan and this is something you mention in your

24 statement. May I ask you: was it your perception that

25 these murders were connected to the Drumcree march in

 

 

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1 any way?

2 A. My perception -- absolutely not connected with the

3 Drumcree march, and two things are very significant

4 here. They were Constables Graham and Johnson and at

5 the time I remember that they were men of my age and

6 they were married men with children. I was extremely

7 upset about the murders, as were everybody in the

8 Coalition, and we publicly condemned it very, very

9 strongly. And what was unusual at that time was that no

10 other group who represented both wings of the

11 Nationalist community had publicly condemned IRA

12 violence.

13 So it was front page news, the fact that

14 Breandan Mac Cionnaith, on television and through our

15 press release, strongly condemned this action both -- in

16 itself, it was an evil, wrong act, but also the

17 implications of this act was to put us all in danger of

18 our lives, everyone in the community, and that was just

19 a contemptible act.

20 Q. I'll turn in a moment to Rosemary Nelson's connection

21 with Colin Duffy's defence for those murders, but can

22 I ask you first of all about her involvement with the

23 GRRC?

24 I think you say in your statement at paragraph 34,

25 which is on page RNI-820-066 (displayed), that she first

 

 

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1 became involved in about 1996?

2 A. Yes, that's correct. To explain, we were a small ad hoc

3 group representing the Nationalist community with very,

4 very limited resources. We didn't have connections with

5 any political parties, we didn't have any funds, okay?

6 We were acting merely on this moral, ethical issue.

7 We did our very, very best to ground our campaign on

8 reasons that were equally applicable to everybody in

9 society, and to that purpose we went to political

10 philosophers to try and use language that was applicable

11 to everybody, to ground it in such a way that we weren't

12 taking a sectarian position.

13 Part of the logic then was to ground our campaign in

14 the law, that we would have -- be legally sound in what

15 we were asking of the state, but we didn't have any

16 legal representative. On this issue, our hands were

17 forced in 1996 because five of us were charged with --

18 I'm not sure what area of law it was, but we were

19 charged with blocking the free flow of traffic on the

20 Garvaghy Road in 1995 as a result of a sit down protest.

21 Q. And Rosemary Nelson was your solicitor?

22 A. She was the solicitor for four people on that group.

23 She wasn't my solicitor, but for the other four people

24 she was the solicitor and she was the lead solicitor

25 then for us all.

 

 

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1 Q. I think you are going a little too fast again. Briefly,

2 why had they gone to Rosemary Nelson?

3 A. I think she had been people's solicitor beforehand, like

4 I went to my solicitor because he had been my solicitor

5 before that. So, therefore, they went to the person who

6 had represented them before, and then those who hadn't

7 needed a solicitor before probably went because other

8 people were going to use Rosemary as their solicitor.

9 Q. Mr Stack, I think I will leave it there.

10 Sir, we will have to resume Mr Stack's evidence at

11 a later date. That date has yet been determined because

12 we haven't finalised his diary, but I would hope it can

13 be early next week, subject to his convenience?

14 THE CHAIRMAN: Mr Stack, we would very much like to hear the

15 rest of your evidence at a convenient date for you, and

16 also obviously it has to fit in with our commitments to

17 other witnesses. Hopefully, it can be next week. Keep

18 in touch and we will try and reach a mutually convenient

19 time and date.

20 Thank you very much for coming and we will adjourn

21 now until Tuesday at 10.15.

22 (4.37 pm)

23 (The Inquiry adjourned until Tuesday, 16 September 2008 at

24 10.15 am)

25

 

 


 

1 I N D E X

2
MISS GERALYN MCNALLY (continued) ................. 1
3
Questions by MR PHILLIPS (continued) ......... 1
4
Questions by SIR ANTHONY BURDEN .............. 148
5
Application by MR DONALDSON ...................... 151
6
Submissions by MR DONALDSON .................. 151
7
Submissions by MR PHILLIPS ................... 153
8
Ruling ....................................... 156
9
MR EAMON STACK (sworn) ........................... 161
10
Questions by MR SKELTON ...................... 161
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