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Full Hearings

Hearing: 26th June 2008, day 42

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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, 26th June 2008
commencing at 10.15 am


Day 42

 

 

 

 

 

 

 


 

1 Thursday, 26th June 2008

2 (10.15 am)

3 MR NIALL MULVIHILL (affirmed)

4 Questions by MR SAVILL

5 MR SAVILL: Could you give us your full names, please.

6 A. Niall Mulvihill.

7 Q. I think it's right that you have given a statement to

8 this Inquiry, so I am going to ask for the first page of

9 that, please, to be called up. That is RNI-813-040

10 (displayed). That is the first page of your statement.

11 Could I ask for RNI-813-072 to be called up

12 (displayed). That is the last page with your signature

13 and the date of 27th, I think, of July on there. Can

14 you see that?

15 A. I think it is 27th April.

16 Q. Oh, it is April, is it? Oh, I see, 27th April 2007.

17 That is your statement?

18 A. It is.

19 Q. Mr Mulvihill, I am going to ask you some questions for

20 events that took place some time ago but which I am sure

21 are, to a degree, still familiar to you. You have made

22 a statement with exhibited documents and you have also

23 been shown some other documents this morning, which we

24 will discuss and will be hopefully brought up on the

25 screen as necessary.

 

 

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1 Just dealing with your background, I think I am

2 right in saying that you are retired?

3 A. Yes.

4 Q. But that you joined the Metropolitan Police in May 1968?

5 A. Yes, I did, as a cadet.

6 Q. And for two years until July 1970, when I think I'm

7 right in saying that you were eligible, as it were, to

8 be appointed a full constable?

9 A. Yes.

10 Q. And you have been promoted through the police service

11 over a number of years until your retirement, which was

12 when?

13 A. I retired in May of 2001.

14 Q. What was your rank when you retired?

15 A. I was a commander, which is a rank specific to

16 London-based forces. It is the equivalent of

17 assistant chief constable, were I to be a member of a

18 non-London police force.

19 Q. Thank you, you anticipated my next question. You may be

20 able to say precisely, how many commanders did the

21 Metropolitan Police Service employ at the time of your

22 retirement?

23 A. I think in the region of 30.

24 Q. Now, having read your statement, certainly as far as I

25 am concerned, there is a broad range of activities in

 

 

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1 your service. Would you agree with that?

2 A. Yes.

3 Q. And I think, just summarising a few of them, you have

4 worked in different areas of London. You spent some

5 time as police adviser to the Prison Service?

6 A. Yes, I did.

7 Q. Could you just tell us what that was all about, please?

8 A. On my first appointment to the rank of commander, I was

9 police adviser to Her Majesty's Prison Service, which

10 was a role requiring me to advise and guide on the

11 interface between the two agencies.

12 Q. And you were also given responsibility for the organised

13 crime group?

14 A. Yes, I was. That included the organised crime group,

15 which embraced the robbery squad or flying squad, the

16 fraud squad and the firearms command at that time.

17 Q. I think you also had involvement in the murder squad?

18 A. Yes, I did. That was my latter command whilst also

19 retaining responsibility for firearms.

20 Q. Thank you. Now, in July 1998 -- if we could call up on

21 to the screen, please, on the monitor, RNI-830-172

22 (displayed) and highlight the first entry -- we can see

23 there -- and indeed you have mentioned this in your

24 statement -- that you were called in to see Mr Stevens?

25 A. Yes.

 

 

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1 Q. And I think it is right -- 3rd July 1998 -- to discuss

2 an appointment that we are all now familiar with

3 involving complaints in Northern Ireland?

4 A. Yes.

5 Q. Now, would it be right to say that that was something

6 that came out of the blue?

7 A. Absolutely.

8 Q. One minute you were doing your normal job and the next

9 minute you were discussing this mission to

10 Northern Ireland?

11 A. Yes.

12 Q. So just dealing with that meeting with Mr Stevens, what

13 did he explain to you was involved?

14 A. I mean, the purpose of the meeting was to give the

15 deputy commissioner the opportunity to determine whether

16 there were any reasons I should not conduct the

17 investigation, or whether there were any prohibitors,

18 like, if I was having a lengthy period of leave, or

19 anything that he might not be aware of. The reality is

20 he had decided I would do the Inquiry unless there were

21 reasons for me not to.

22 Q. I was going to ask you that, because I'm not fully

23 au fait with the dynamic between a deputy commissioner

24 and a commander. Was this a situation where you could

25 have politely refused?

 

 

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1 A. No, not politely refuse.

2 Q. So it was going through the motions of politely asking

3 you if you would mind doing this?

4 A. I think it would have stood any scrutiny, in terms of if

5 there had been a genuine reason for me not doing it.

6 But there weren't any.

7 Q. But your preference would not have come into it, really?

8 A. Not at all.

9 Q. As far as Mr Stevens was concerned, did he give you any

10 comment as to his views or experiences, as they may have

11 been, of Northern Ireland and what might have been

12 involved in it?

13 A. I don't have any recollection of him saying anything

14 which in any way coloured my vision of what the future

15 was likely to be conducting an investigation in

16 Northern Ireland.

17 Q. And when you, as it were, left the meeting and the die

18 had been cast that you were going to do that, what was

19 your immediate reaction to that?

20 A. Well, I hadn't done such an investigation before whilst

21 occupying the level I was in and I looked forward to it.

22 Q. Yes, I wanted to ask you about that: at this time, prior

23 to you going to Northern Ireland and then subsequently,

24 what was your experience in the field of complaints?

25 A. Well, in the Metropolitan Police, once an officer has

 

 

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1 reached the rank of chief inspector, in the era when

2 I reached that level, chief inspectors routinely

3 investigated complaints.

4 Q. Sorry, what that was era?

5 A. I was appointed chief inspector in the early 1980s and

6 chief inspectors on ordinary duties were allocated

7 complaints to investigate along with their day work.

8 That continued to be the case. I did complaint

9 investigations in all subsequent ranks. I'm not

10 100 per cent sure if I did as a chief superintendent,

11 but I certainly did as chief inspector, superintendent.

12 The system changed somewhat in the Met and there was

13 a centralisation of complaints at one point, but from my

14 point of view I had a regular familiarisation with them

15 in those sort of formative years.

16 Q. I hope you will agree with me if I characterise this

17 particular investigation in this way: it was not your

18 home force and it was a number of complaints, a number

19 of individuals making varying allegations. Had you,

20 prior to your appointment, or did you subsequently ever

21 involve yourself in a similar inquiry such as this?

22 A. No, this was a one-off. Once this was completed, I

23 wasn't called upon again to conduct such an

24 investigation, because within two years of its

25 conclusion I had retired.

 

 

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1 Q. And if you and I had met walking down the street after

2 your meeting with Mr Stevens, what would you have told

3 me you thought at that point your role was going to

4 involve?

5 A. To reinvestigate and freshly investigate new allegations

6 of alleged misbehaviour by then RUC police officers

7 against people who had been under arrest, held in police

8 premises.

9 Q. And had the Rosemary Nelson angle, if I can use that

10 word, been highlighted to you at this stage?

11 A. Not at all. Once I was appointed to the investigation,

12 that was the first time I ever became aware of

13 Rosemary Nelson's existence, to be perfectly honest.

14 Q. Yes. Thank you. And as far as Northern Ireland and the

15 policing context over there was concerned at this time,

16 what was your experience of that, or knowledge?

17 A. Until 1991 I had never been to Northern Ireland. I had

18 been to southern Ireland but not been to

19 Northern Ireland.

20 I did a one-week attachment whilst attending the

21 senior command course at the Bramshill police staff

22 college. And then in 1995, when I first became police

23 adviser to the Prison Service, I spent a couple of days

24 in Belfast and I visited what was then Long Kesh and I

25 think it is Maghaberry, but my memory is not too clever

 

 

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1 on that. But I visited what one would describe as

2 a maximum security prison and an ordinary prison as part

3 of my exploration of how people are detained.

4 Q. What, as a matter of interest, please, did you think

5 that you with your skill set and your experience could

6 bring to this investigation and inquiry?

7 A. I suppose on reflection I hoped that I would bring fresh

8 perspective and an open mind, a willingness to get to

9 the root of problems, and I would have no fear of

10 chastising people who had transgressed, if that was what

11 emerged.

12 Q. Yes, thank you. Now, I believe that with your meeting

13 with Mr Stevens, you were not briefed as to strategy

14 particularly but there was a discussion of terms of

15 reference?

16 A. Yes.

17 Q. Not what they would be, but the significance or

18 otherwise of establishing them?

19 A. Yes. I mean, all that the Deputy Commissioner really

20 did was to confirm that which had been stressed to

21 people like myself on a variety of courses for chief

22 police officers: that if you are to undertake an inquiry

23 in another force area, you must get terms of reference

24 which are clear, unambiguous, so that at some future

25 date somebody cannot say you didn't do what you were

 

 

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1 asked to do.

2 Q. Or you did more than you were asked to do?

3 A. Theoretically, I imagine, yes.

4 Q. And I think we can all see, perhaps, the wisdom of

5 getting those things in black and white, written down

6 before you start your work?

7 A. That's right.

8 Q. That, I think I am right in saying, was very much in

9 your mind?

10 A. Yes, indeed.

11 Q. And following your conversation and meeting with

12 Mr Stevens, I think you spoke to Sir Ronnie Flanagan?

13 A. Yes, I did.

14 Q. And if we could just highlight the 6th July entry. I am

15 sorry, I should have asked you: this document we are

16 looking at is a log of meetings and conversations that

17 you created?

18 A. Yes, indeed.

19 Q. And we can see there that you had what is described as

20 a brief conversation on the telephone with Mr Flanagan?

21 A. Yes.

22 Q. And you agreed to undertake the Inquiry subject to

23 approval by the ICPC?

24 A. Yes.

25 Q. And then you indeed spoke to members of the ICPC

 

 

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1 regarding a need to meet, which I will come to in

2 a moment?

3 A. Yes.

4 Q. You spoke to Sir Ronnie Flanagan. Again, in the same

5 way I have discussed the meeting with Mr Stevens, was

6 this a formality or was this very significant that he

7 approved you personally?

8 A. I must say I don't know what goes through the mind of

9 a chief constable at this time, other than they have got

10 to ensure that the person coming in to undertake the

11 inquiry has some credibility. And I would imagine that

12 the vast majority of people occupying the position I did

13 would have that level of credibility, because I think it

14 is mentioned in other papers but, for example, you could

15 not be subject of an investigation yourself.

16 Q. Indeed.

17 A. So that optimistically your bona fides would be such

18 that everyone would be content unless there was some

19 major event that meant that a party was uncomfortable

20 about you.

21 Q. It is my fault for asking probably quite a loose

22 question, but to try and assist you: did he ask probing

23 questions of you when he spoke to you?

24 A. I don't remember the specifics of what Sir Ronnie said,

25 but I am sure that he would have asked me questions

 

 

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1 which would have established that, in his mind at least,

2 from his perspective, he was content with my

3 appointment.

4 Q. Did he express any indication as to the purpose or

5 purposes of your appointment?

6 A. In very general terms I am sure he did, but of course we

7 had no terms of reference by then.

8 Q. Quite.

9 A. It was very much the early times of yes, I was

10 available, yes, I could get work done in a decent

11 timeframe, and yes, I was up for the challenge.

12 Q. So you didn't discuss with him what had gone on, the

13 past, his expectations --

14 A. If we did, it would have been in the broadest terms,

15 because names would not yet have meant anything to me.

16 I am sure he would have, for example, indicated that

17 a certificate of dissatisfaction had been issued and

18 that he wanted to make sure that the ICPC were

19 satisfied, hence my appointment.

20 Q. Yes. And as sometimes people do when you are having

21 a conversation that both parties know may be the subject

22 of a note or a record, did he make any remarks to you,

23 as it were, in parenthesis, off the record --

24 A. No.

25 Q. -- indicating any subtext?

 

 

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1 A. No, there was no separate agenda. I have never found

2 that with my dealings with Sir Ronnie. In any event, he

3 is a straightforward individual.

4 Q. Again, helpfully, you are anticipating where I am going

5 next. I think you knew him, or knew of him?

6 A. Yes, I mean, we had both been on a similar course. Mind

7 you, there were 50 of us on the course in all different

8 syndicates and we weren't in the same one. But with

9 a chap like Sir Ronnie Flanagan, he is a very pleasant,

10 obviously able person and he wasn't a close personal

11 friend or anything like that, but we did know one

12 another; he would have known my name. I wouldn't be one

13 of those obscure individuals that he had never set eyes

14 on. He did know me, yes.

15 Q. You've touched on his character, and obviously

16 I appreciate that is an entirely subjective point of

17 view from yourself?

18 A. Yes, of course.

19 Q. But throughout your period of endeavours in

20 Northern Ireland and making your reports and your review

21 shortly thereafter, how would you describe his

22 involvement with you and your team?

23 A. In the nicest possible way, detached. He didn't insert

24 himself in any way. He didn't become a pain, wanting to

25 be momentarily kept up-to-date with how things were

 

 

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1 going. He was content for us to get on with the work

2 and to report as appropriate.

3 Q. If I may say so, I think that paints a very helpful

4 picture. You are using the word "detached" in the

5 nicest possible way and I think, presumably, from that

6 you would say that you would have been rather more

7 concerned if he had been --

8 A. Indeed, it would have been the sort of thing of being

9 concerned that there might be an agenda.

10 Q. And that certainly never crossed your mind?

11 A. Never at all.

12 Q. Because there was never any reason for it to do so?

13 A. No.

14 Q. Thank you. Now, I have mentioned a moment ago that you,

15 in the highlighted portion, needed to meet with

16 Geralyn McNally and Jennifer Mitchell. Could we just

17 highlight the 8th July entry, please.

18 We have you and your colleague, who I will come to

19 in a moment, Mr Marshall, collecting these ladies at

20 Heathrow airport and attending the Chief

21 Superintendent's office; yes?

22 A. Yes. I mean, it is in a separate building completely.

23 We picked them up at the airport, drove about a mile to

24 Heathrow police station and, helpfully, the local senior

25 officer made his own office available for us to use.

 

 

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1 Q. Yes. I want to ask you a little bit about that, if

2 I may. I hope I am right in suggesting to you that

3 there was entirely proper and reasonable reasons for you

4 meeting these people?

5 A. Yes, it was essential that I was approved by the ICPC

6 and they were -- in particular, Geralyn McNally was very

7 content to come to Heathrow. I can't really remember

8 why it had to be Heathrow.

9 Q. This is what I was going to ask you, because I think --

10 A. I think it may have been convenient. I can't really

11 recall, but something inside my mind tells me that there

12 was a reason for her to be in London anyway and it

13 helped the issue to move on rather more promptly.

14 Q. Yes, I think, obviously speaking only for myself,

15 meetings at Heathrow are to be avoided?

16 A. Indeed, but of course we were in a separate building.

17 Q. This may have been a matter of convenience that led you

18 there?

19 A. I think that was the case.

20 Q. So there is nothing to be read into it, the location and

21 the Superintendent's office.

22 A. No.

23 Q. As to that meeting, again a similar type of question

24 from me, please: was this a mini interview, as it were,

25 of you, did you feel, by these members of the ICPC?

 

 

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1 A. Yes, I suppose I did really, because if, for example, I

2 had expressed any views which might have raised

3 a question mark about me, then I would probably not have

4 received approval. I can't really think of anything

5 that would have come to mind, but it was, I suppose,

6 a mini interview. They had to be satisfied that I would

7 do a good job.

8 Q. Yes. You had had your interest piqued, as it were, in

9 this; you had dealt with senior officers, Mr Stevens and

10 Mr Flanagan?

11 A. Yes.

12 Q. But is it right that you felt that had, for whatever

13 reason, rightly or wrongly, Geralyn McNally and/or

14 Jennifer Mitchell felt you were not the right person for

15 the job, you would not have gone on to do it?

16 A. I am certain that was the case. I was asked, I know,

17 about my own background, my own experiences, and

18 I outlined them. It was not a two-way street. I was

19 not going to be offered the opportunity of querying

20 anything in their background, quite rightly. It was me

21 that was being approved.

22 Q. Just so we are clear, you didn't feel it was improper?

23 A. Not at all. It was quite correct to do it that way.

24 Q. I suppose -- and I am using an awful expression -- it

25 was better to get any dirty washing out at the outset,

 

 

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1 rather than there being a problem in the future?

2 A. Absolutely.

3 Q. And you were left in no doubt that they had, as it were,

4 the right of veto?

5 A. Most definitely.

6 Q. And as far as you were concerned, they did quite

7 a thorough job of interviewing you?

8 A. Yes. I mean, it was principally Geralyn McNally as the

9 member but ably assisted by her number 2.

10 Q. And in summary, you got on very well, I think?

11 A. Yes, we did.

12 Q. Now, after you had met, you I think went and wrote

13 a letter to her confirming the matters that had been

14 discussed?

15 A. Yes.

16 Q. I am afraid we don't have that letter. And she wrote

17 back confirming your appointment?

18 A. Yes.

19 Q. I just want to touch on an issue, and I hope, please,

20 you do not think I am being critical. I just want you

21 to clarify it for all of us: You were not going to do

22 this full-time?

23 A. No.

24 Q. Could you explain the reasons for that?

25 A. The post that I occupied was one which I thoroughly

 

 

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1 enjoyed, and if I had undertaken or been made to

2 undertake this inquiry full-time, I could have lost my

3 command, in that it was not one where it could be just

4 left vacant. So I was anxious to ensure I kept my

5 command, because I realised that, all things being

6 equal, there would be a finite time when I would be

7 conducting these inquiries and then I could resume my

8 normal duties back at Scotland Yard, but also continue

9 to do them whilst I was conducting these enquiries.

10 Q. Thank you. Again, just so that we are absolutely clear

11 about this, there was never, would you say, any conflict

12 between your stated and open position and the role that

13 you in fact went on to perform?

14 A. No.

15 Q. No one ever said to you, "You are not spending enough

16 time over here" or "We don't think your heart is in it",

17 anything like that?

18 A. No, we worked exceptionally long hours, including

19 weekends at times. That was never the question at all.

20 Q. So far as you are concerned, Mr Mulvihill, you were

21 perfectly able, and indeed did, to run both parts of

22 your professional life concurrently?

23 A. Indeed.

24 Q. I would like, if I may, just return to the subject of

25 the terms of reference and explore that a little bit

 

 

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1 more in some detail with you. Could we call up on to

2 the screen, please, RNI-103-145 (displayed)? Thank you.

3 I don't know if we can highlight all of that. Thank

4 you.

5 This is a letter dated 13th August from Mr Flanagan

6 to you, and obviously there is more over the page which

7 we will come to in a moment, but I am sure this is

8 something that is familiar to you because this was the

9 bedrock, as it were, upon which your endeavours were

10 founded?

11 A. Yes.

12 Q. Now, just to explore with you, you have told us that the

13 terms of reference were extremely important, and the

14 reasons for that. Who had the final say?

15 A. I think it amounts to an agreement between the

16 Chief Constable and the investigating officer, in other

17 words myself, but very much led by the Chief Constable.

18 I would have the opportunity of submitting my views

19 if I thought that it was too widely framed, but I was

20 completely content with it when I was offered these as

21 my terms of reference.

22 Q. And again, I don't mean this critically, you were

23 presented with these terms of reference?

24 A. Yes.

25 Q. But what I think you are saying to us is that you were

 

 

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1 presented with them, you found nothing disagreeable

2 within them?

3 A. That's right.

4 Q. Therefore, you agreed and signed up to them?

5 A. Yes.

6 Q. But had you seen something in that that you felt was

7 objectionable, you were entitled to, and would have

8 complained?

9 A. Yes, I would have.

10 Q. And as far as you were aware, who had input into these

11 terms of reference?

12 A. I imagine the people who had been involved in the

13 background, which let to my appointment in the first

14 place. So -- and I am surmising here, I hasten to add,

15 but I would assume that it was the as then was Royal

16 Ulster Constabulary who I don't know, and the ICPC:

17 again, the people involved I don't know.

18 But I would have thought it amounted to an agreement

19 between both parties, because it would have been,

20 frankly, daft for me to have been given terms of

21 reference which the ICPC thought were inappropriate.

22 Q. Yes. And I don't want it called on to the screen, but

23 in your statement to the Inquiry you say that you have a

24 vague recollection of some additional discussions with

25 Paul Donnelly of the ICPC about the terms of reference

 

 

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1 but can't recall anything specific?

2 A. Yes, and it is even vaguer as time has gone by.

3 Q. But what you were referring to there is yourself talking

4 to Mr Donnelly?

5 A. That is right.

6 Q. So far as you are concerned, these terms of reference --

7 and we will just have a very brief look at them. We

8 have 1 to 5. This is number 1: the Lawyers Alliance for

9 Justice in Ireland complaint?

10 A. Yes.

11 Q. Number 2, we have Rosemary Nelson and Colin Duffy. We

12 then have those persons again in number 3, but

13 a slightly different subject matter?

14 A. Yes.

15 Q. In number 4, we have what I think we could, I hope, call

16 a new complaint?

17 A. Yes.

18 Q. Because it hadn't been looked at by the Complaints and

19 Discipline branch; that's at number 4.

20 At number 5, again, this is a new complaint

21 involving Mr Donnelly. If we could turn over the page,

22 please, again just highlighting those paragraphs, we

23 have got number 6, which sets out plainly that you would

24 be under the supervision of Miss McNally.

25 Now, just pausing there, what did you imagine, and

 

 

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1 indeed go on to experience, that supervision aspect

2 involved?

3 A. My thoughts on this in advance translated pretty much to

4 the outcome. I anticipated that I would discuss with

5 the supervising member a broad strategy as to how the

6 complaints would be investigated, who would be

7 interviewed, who would be present at the interview,

8 a protocol for any supervisor who perhaps wanted

9 additional questions to be asked when matters arose

10 which hadn't been predictable.

11 And that is how it went: good discussions prior to,

12 an ability to communicate during, further discussions

13 after interviews and then occasional discussions on, you

14 know, where are we to date, how are things panning out,

15 are we missing anything. It was very professional but

16 friendly and sensible. It was -- the two sides of

17 a coin coming together to try to make sure that the

18 outcome was satisfactory.

19 Q. Thank you. Number 7 -- and we will come to this in due

20 course -- this was to review the original RUC

21 investigation into the matters 1, 2 and 3 that we have

22 already discussed. And importantly there -- I will just

23 read:

24 "If at any stage you conclude that this aspect

25 requires separate or independent investigation or should

 

 

22

 

1 be investigated by another officer, you will draw this

2 to my immediate attention. Alternatively, you will

3 report with any recommendations you feel are appropriate

4 in this regard."

5 Yes?

6 A. Yes.

7 Q. 8, this is the report to be provided for consideration

8 by the Director of Public Prosecutions; 9, a report for

9 consideration as to disciplinary offences; 10, a report

10 if there are any recommendations you wish to make; and

11 11, a sort of catch-all at the end:

12 "Nothing in these terms of reference should be

13 construed as any constraint upon you investigating any

14 matter coming to your attention as a result of your

15 enquiries."

16 A. Yes.

17 Q. So would you agree with me that you had set down here in

18 this letter the specifics, but also the overarching

19 principles upon which, or under which, you would be

20 operating?

21 A. That's right.

22 Q. Is that fair?

23 A. It is.

24 Q. Thank you. You also, I think, had the opportunity to

25 discuss these with the members of the ICPC, and if we

 

 

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1 could just call up on to the screen, RNI-223-033

2 (displayed), these are their minutes, I believe, of

3 a meeting on 19th August. If we just highlight the top

4 part of the page. Sorry, again, the top part including

5 the meeting heading. Thank you. I am sure that was my

6 fault and I will be reprimanded accordingly, but we have

7 here Wednesday, 19th August, a meeting G McNally, you

8 and Detective Inspector David Marshall. Do you see

9 that?

10 A. Yes.

11 Q. I'm not going to go down the page in detail, but we can

12 see two headings there:

13 "1. Investigation of two new complaints ...

14 "2. Reinvestigation ..."

15 So you are talking about what you are going to be

16 doing.

17 Can we turn over the page, please, and could we

18 highlight the bottom half, that is number 3 downwards.

19 This is a discussion of paragraph 7 and 11, your terms

20 of reference; yes?

21 A. Yes.

22 Q. And I just want to explore with you the middle three

23 paragraphs.

24 We can see that there is an enquiry into a number of

25 aspects of its content, which refers to the negative

 

 

24

 

1 statement from the Commission, and you then outline your

2 proposed course of action.

3 You propose to carry out a review as opposed to

4 a formal investigation at this stage, but to leave the

5 review open-ended. You would wish to come to an

6 agreement with me -- I am not entirely clear who this

7 is, but I think it is Miss McNally:

8 "... and to receive written observations, concerns,

9 as partly detailed in the statement. I indicated that I

10 wished to discuss the matter with both Chief Executive

11 and Chairman, and undertook to confirm agreement or

12 otherwise later that afternoon.

13 "Having discussed the matter with the above, it was

14 agreed that a review was appropriate at present and with

15 provision that if any matters arose which warranted

16 formal investigation, then same would be instigated.

17 The IO [I think that's you, the investigating officer]

18 was pleased with this confirmation and reassured me that

19 the review would culminate in his recommendations to the

20 Chief Constable. The IO [that's you again] was informed

21 of the substantial interest of international bodies, the

22 NIO, Secretary of State and others."

23 So just having read that, just dealing with two

24 matters arising from it: First of all, the outside

25 interest aspect. How did you come to know about that

 

 

25

 

1 and what impression did you form of, if I can put it

2 this way, external pressures or interest on your

3 inquiry?

4 A. I was aware, as a result of the conversations with all

5 the people that have already been mentioned in this

6 morning's question and answers, that there was external

7 interest from international bodies and others as to how

8 this particular set of enquiries would proceed and what

9 the outcome would be.

10 I actually did not feel under any pressure from

11 outside bodies, as the reality of life for me was that

12 everything would be decided upon how the investigations

13 progressed. And I would not have been unduly influenced

14 by the views or concerns of others, but would always

15 have taken them into consideration, because they may

16 well merit consideration in the overall scheme of how

17 the Inquiry panned out.

18 Q. Thank you. And the second matter I just want to pick

19 out from this, please, is the initial discussions that

20 seemed to be happening here about what is a review, what

21 was going to be your methodology?

22 A. Well, it is easy now to reflect on what it was, but it

23 is not as clear as it was at the time. But what I do

24 recall is that it was not going to be a reinvestigation

25 unless something emerged which really made that the

 

 

26

 

1 appropriate outcome. It was a review of how things had

2 gone, including what had not gone well, in order to

3 ensure that the same set of circumstances did not arise

4 again in the future.

5 Q. And just to push you on that a little bit, I think I

6 understand your meaning between the differences of a

7 review and a reinvestigation, but what would be perhaps

8 a couple of practical examples that would differentiate

9 between a review and a reinvestigation, in your mind?

10 A. I suppose an example would be where perspective comes

11 in, where two people who have a view of an event which

12 seemed to be different, although both clearly are

13 referring to the same event.

14 Q. Yes.

15 A. A review might throw up some thoughts about how such

16 a dispute might be overcome in the future, perhaps by

17 the addition of some paperwork to confirm what is agreed

18 as a consequence of that meeting.

19 Two people can go away from an encounter and have

20 completely different views of what they have just agreed

21 or not agreed upon. If an investigation is conducted,

22 there is always going to be paperwork attached to it,

23 whereas if a review is conducted of what has happened

24 already, then the recommendations which emerge, there

25 may be no paperwork attached to that because you will

 

 

27

 

1 ask people what happened. I will take their word for it

2 and I will come up with recommendations.

3 Q. Thank you. And this is my amateurish interpretation,

4 but would it be right, therefore, to say that

5 a reinvestigation involves getting to the bottom of what

6 actually happened or was said or was done, whereas with

7 a review -- and I don't want you to take this the wrong

8 way -- it doesn't really matter, because that is not the

9 purpose of it?

10 A. I think that to say "it doesn't matter", in quotes, is

11 not entirely accurate. It does matter very much, but it

12 is not a reinvestigation, which really would mean going

13 right through everything again. And of course, it would

14 mean, if it became a reinvestigation, that much of the

15 contribution of the people who had already said what

16 their concerns were would have to then be reduced to

17 writing.

18 Q. Yes.

19 A. And would then be able to be used as the background to

20 questioning. It would have meant additional formality

21 and additional time.

22 Q. I see. Now, could we push the highlighted portion,

23 please, to the left-hand side of the screen, if that is

24 possible, and could we call up on to the right-hand side

25 RNI-223-080 (displayed).

 

 

28

 

1 This is another meeting of 11th September; similar

2 personalities present. If we could go over to

3 page RNI-223-082, and if we could highlight the second

4 chunky paragraph towards the bottom of the page

5 (displayed). I will just read this out. This is

6 obviously a minute of a meeting that we have seen:

7 "Commander Mulvihill acknowledged receipt of the

8 documents specifying the concerns/issues relating to the

9 investigation carried out by Chief Inspector P146. He

10 referred to this aspect as a further investigation and

11 Miss McNally made it clear that she considered his work

12 in the area to be a reinvestigation. It was

13 acknowledged that if Commander Mulvihill's 'review' (as

14 defined by point 7 of the Terms of Reference) disclosed

15 anything which required 'separate or independent

16 investigation or should be investigated by another

17 officer', this would be drawn to the immediate attention

18 of the Chief Constable. Commander Mulvihill confirmed

19 that he envisaged his final report as being comprised of

20 three distinct areas of report (i.e. on the complaints by

21 Lawyers Alliance for Justice in

22 Ireland/Rosemary Nelson/Colin Duffy, on the complaints

23 by Rosemary Nelson/[C208] and on the 'review' of the

24 original investigation)."

25 So there seems to be a discussion similar to that

 

 

29

 

1 which you and I have just had in very broad terms about

2 the investigation, reinvestigation, review point?

3 A. I mean, I am accepting what is in front of me here,

4 having in mind that they are, it seems to me, the notes

5 of Jennifer Mitchell which were subsequently, I note,

6 noted by Geralyn McNally. But of course I was never

7 provided with these at any point. They are the ICPC

8 notes. But I am not disputing them.

9 Q. That was what want to say to you: Is there anything in

10 there that you disagree with?

11 A. No, but I am sure that if a person were prone to be

12 argumentative, the issue about the review, as to what it

13 really means, it seemed much clearer then.

14 Q. Yes.

15 A. I don't know in if that helps.

16 Q. I think it is an expression that we can all associate

17 ourselves with. So let me perhaps ask you this

18 question: at the time, over the months you were doing

19 this, were you under the impression that you and those

20 you were working with -- and I mean your own officers,

21 members of the Commission, all knew what was meant to be

22 done?

23 A. Yes, I am quite certain that that was the case, that the

24 complaints which were being investigated or

25 reinvestigated were really one very large limb of the

 

 

30

 

1 Inquiry, but that the review run alongside it but was

2 separate from it. And that somehow or other it seems to

3 me that it was unlikely that there would be further

4 investigations unless something glaring emerged.

5 And that was the feel that I got all the time in

6 conversation with not only my own team but with the

7 ICPC. There was never an occasion where there was an

8 argument, a dispute of any sort, where somebody who was

9 supervising said, "This now needs investigation, don't

10 you think?" That never occurred.

11 Q. Yes. And at this point can I ask you just to

12 characterise very briefly your working or indeed social

13 relationship with the members of the Commission

14 throughout the term of your work?

15 A. I would describe it as professional, friendly, sensible.

16 There was very little social relationship at all,

17 because all our work tended to be daytime.

18 Q. And before I just move on slightly from this issue of

19 the review, presumably at the time you were aware that

20 there had been problems, as we have, I think, read --

21 A. Yes.

22 Q. -- in relation to the actions of the Complaints and

23 Discipline Department. Would it be right to say that

24 you felt that the review would, by necessity, have to

25 involve a discussion not only of the RUC's side of

 

 

31

 

1 things but also the Commission's?

2 A. I think it would have been lopsided for the two parties

3 involved not to have been the subject of some comment.

4 I can't see how I could have reported and excluded the

5 ICPC's involvement.

6 Q. Dealing very quickly with your team and your

7 methodology, I don't want you to name him, but you had a

8 detective chief inspector helping you, Detective

9 Inspector David Marshall, another detective chief

10 inspector, and you worked, as you have told us, very

11 hard in short bursts in Ireland. Would that be right?

12 A. Yes, that is right. And for some of those team members,

13 they worked pretty much full-time engaged on this, in

14 that, as a consequence of statements taken or interviews

15 conducted, it would have required scrutiny of tapes,

16 scrutiny of previous statements and developing

17 questioning plans for future interviews. So they were

18 hard at it most of the time.

19 Q. And I was going to say that Mr Neligan was the junior

20 officer?

21 A. Yes.

22 Q. And I don't use this pejoratively, but he was a fixer

23 and an organiser, was he?

24 A. Yes, he was. It was a case of all machines need oil and

25 some people are those who can make things happen by

 

 

32

 

1 making the phone calls, arranging the interviews and so

2 on. And there were very helpful people in the RUC who

3 did precisely the same things.

4 Q. And as far as you are concerned, you yourself, would it

5 be right to say that you were the head of this?

6 A. Yes.

7 Q. You distributed tasks to those beneath you?

8 A. Yes.

9 Q. You certainly involved yourself at the very outset with,

10 if I can call them this, the higher profile interviews?

11 A. Yes. Only by being present. I might not have taken the

12 statement from the individual concerned, but in the

13 critical interviews I certainly made myself available so

14 that I was party to discussions prior to statements

15 being taken.

16 Q. And that would involve Mrs Nelson and Mr Duffy?

17 A. Yes, indeed.

18 Q. And what was your thinking, very briefly, as to why you

19 needed to put yourself forward at this point? What was

20 so important?

21 A. I felt that it was important, from the point of view of

22 those people making the complaints, that they saw the

23 person who was heading the Inquiry and had

24 an opportunity to ask me questions in case they had any

25 doubts about my determination to be fair and

 

 

33

 

1 even-handed.

2 And there had been difficulties in the past, I had

3 been advised, with getting people to attend for

4 interview, and I thought it was a whole credibility

5 issue and that I should make myself available, and it

6 seemed to work.

7 Q. And subsequently, for the reason that we have just

8 discussed, you perhaps, I think, took a slightly lesser

9 role in what was going on on the ground in

10 Northern Ireland. Would that be fair?

11 A. I didn't sit viewing tapes and doing things like that.

12 I was content to be advised in statements that my staff

13 had done that work. I couldn't do it all myself.

14 Q. No. And as far as, if I were to call it a strategy or

15 a plan of action was concerned, what was that? How were

16 you going to look into this?

17 A. Well, it was to make sure that we left no stone

18 unturned. It was to ensure that those complaints which

19 we were either investigating or reinvestigating, every

20 effort was made to track down every available witness,

21 to prevail upon those who were reluctant, for whatever

22 reason, to make themselves available for interview and

23 to convince them of the fact that we were determined to

24 do a genuine job on whatever it was that they had to

25 complain about, and to come to a conclusion which met

 

 

34

 

1 with the satisfaction of the ICPC in particular, given

2 that they had been dissatisfied previously.

3 I had hoped that those members of the RUC who were

4 investigated, however much they may have been

5 uncomfortable about the fact that they were interviewed,

6 that they would also have seen it as a professional job

7 completed properly.

8 Q. Did you feel that you had, or were provided with,

9 sufficient background material to conduct your task?

10 A. I believed so, yes.

11 Q. Were you in possession or did you ask for sight of

12 previous convictions or disciplinary records,

13 intelligence? Can you remember?

14 A. A range of different things you ask there. I imagine

15 that I would have been made aware of criminal

16 convictions, of complainants. It doesn't come to mind

17 immediately, but I imagine that would have been the

18 case. I can't recall seeing anything about disciplinary

19 backgrounds of people, and my memory is that I did not

20 see any intelligence reports on people involved.

21 Q. But were you content to proceed --

22 A. I was.

23 Q. -- in possession of -- sorry.

24 A. I was more than content to proceed in the fashion that

25 I did, because I think that exposure to too much of that

 

 

35

 

1 sort of information, there is the risk that it would

2 reduce even-handedness.

3 Q. Or perhaps provide preconceptions?

4 A. Indeed.

5 Q. Yes. When you came to the task, obviously I hope I am

6 right in saying, there was one personality, namely P146,

7 the Complaints and Discipline officer, who had been

8 heavily involved in the same aspects of work that we are

9 now looking at?

10 A. Yes.

11 Q. Now, as far as he was concerned, he obviously was a, as

12 I say, very prominent figure from what had gone before?

13 A. Yes.

14 Q. What did you believe was the appropriate level of focus

15 to place upon that individual in carrying out your own

16 investigation and review?

17 A. He was secondary to the first thrust, which was to

18 undertake reinvestigations and new investigations. My

19 conversations with the ICPC member moved me towards

20 picking up on him latterly, when the main thrust of

21 investigations was almost completed.

22 Q. Yes. But as far as you were concerned, you carried out

23 a sufficiency of contact and interview with him to

24 enable you to progress your task?

25 A. Yes, I interviewed him having looked at some of the work

 

 

36

 

1 that he had undertaken, and I delayed interviewing him

2 for a fair period so that I could pick up on the style,

3 not only of interview that he had conducted, but also

4 the style of the people who were being interviewed by

5 him, which of course myself and my team also interviewed

6 some of those characters.

7 Q. Yes. And would it be right to say also that he wasn't

8 the subject, himself, of a complaint investigation,

9 technically?

10 A. No, he was not.

11 Q. Did that affect your focus on him?

12 A. No. The difference is he was not a suspect officer. He

13 was a witness.

14 Q. Yes.

15 A. And whilst clearly there had been problems or the

16 perception was of problems between him and the

17 supervising member for the ICPC, because the certificate

18 of satisfaction had not been granted in cases that he

19 had investigated, nonetheless no complaint had been made

20 against that individual man.

21 Q. I can show you this in your statement if you want me to,

22 but I hope I don't need to. You make the comment that

23 you did not like the style of some of the investigations

24 that you reviewed?

25 A. Yes.

 

 

37

 

1 Q. Briefly, could you just expand on that for me, please?

2 A. Well, I am an outsider, if you will, for -- compared to

3 what the inside people of the then RUC had to contend

4 with when conducting investigations, and I guess

5 experience is a great one for telling you how to deal

6 with your own organisation.

7 From a personal point of view, I would probably have

8 pushed harder in some of the investigations in terms

9 of -- and I am sure we will get on to it, but where

10 people provided pre-prepared statements. There came

11 a time, I believe, where some of the investigating

12 officers would ask a series of questions and the

13 individual suspect officer would say little more than,

14 "I refer you to my statement".

15 From a personal point of view, I would not have

16 accepted that per se. I would have gone through the

17 fine detail of what it is that the allegation is against

18 you, you have said in your statement the following, for

19 example, would you care to add to that, and I might have

20 gone down side roads of further questioning.

21 But, of course, I wasn't dealing with RUC complaints

22 on a day-by-day basis as many of these investigators

23 were, and they were bringing their experience to the

24 table and it was not mine.

25 Q. No. And I wanted to ask you, and I think now is the

 

 

38

 

1 right time: this was a police force uniquely positioned

2 at the time, dealing with paramilitary crimes and

3 activity?

4 A. Yes.

5 Q. These were officers who, we would all agree, were in

6 considerable personal danger very often in their working

7 lives?

8 A. Certainly. At least potentially.

9 Q. And certainly many of the suspects who made these

10 complaints were terrorist suspects?

11 A. Yes.

12 Q. So just tell us, please: how did that weigh in your mind

13 when you came to consider and investigate the complaint?

14 A. Again, I think the even-handedness issue comes to mind.

15 I was determined from the outset, and my team all shared

16 my stance on it, that the fact that individual

17 complainants were considered to be potential terrorists

18 would have no bearing on how we conducted our enquiries,

19 because otherwise it would have been coloured from

20 day 1. And it was not, as you know, because the ICPC

21 were satisfied with the way we did business.

22 But I was determined that immaterial of what alleged

23 background an individual complainant might have, they

24 would get a fair hearing, their statement would be

25 taken, their allegations would be properly investigated

 

 

39

 

1 and recommendations would be made at the conclusion on

2 the basis of the evidence which emerged.

3 Q. Now, you obviously had to set up interviews with police

4 officers and complainants?

5 A. Yes.

6 Q. And I'm not going to show them to you, we have seen some

7 of them already in our hearings: letters that you wrote

8 to people asking them to attend?

9 A. Yes.

10 Q. Some were very keen to attend, some had to be cajoled

11 and some showed absolutely no interest whatsoever in

12 attending?

13 A. That is a very fair summing-up.

14 Q. The approach that you adopted to getting people to come

15 to these interviews, particularly the complainants

16 themselves, was perhaps slightly more relaxed than you

17 would have adopted elsewhere, I think. Is that --

18 A. I think that is reasonable.

19 Q. Why --

20 A. There was no point me trying to be difficult with people

21 who were potentially reluctant witnesses if, by being

22 a little bit more flexible, I could actually get them to

23 come through the door and make a statement. That is

24 what I set out to do.

25 For example, statements taken by others and

 

 

40

 

1 submitted on their behalf, evidentially are pretty

2 hopeless. So I really needed to see those people, to

3 hear from them. So we could take statements which would

4 have evidential worth.

5 Q. Once again, if I may say so, you have read my mind and

6 answered a question I was going to ask you. You did

7 receive, as it were, outside input from third parties,

8 including Mr Lynch?

9 A. Yes.

10 Q. But to your mind they were of little help; is that

11 right?

12 A. Well, they were hearsay.

13 Q. Yes.

14 A. And as such, unless the law is changed, it simply didn't

15 take things very much further forward, and the

16 contribution of any individual who might have been the

17 author of the original complaint, if they came and saw

18 us and made the statement, it was so much more worthy

19 than what we got.

20 Q. Could we just call up on to the screen, please,

21 RNI-813-052 (displayed). Thank you. Could we highlight

22 paragraph 38. This touches on what you have just

23 helpfully told me:

24 "It was unhelpful that some the complainants

25 themselves would often not come to speak to us. In some

 

 

41

 

1 cases, third parties such as Ed Lynch would give

2 statements, but often these were nonsensical or

3 unprovable. Some alleged events were clearly

4 disprovable, but would only get sorted out for definite

5 by talking to the complainants themselves."

6 Could you just help us with the expression that

7 "some alleged events were clearly disprovable"?

8 A. For example, inconsistency of dates where people could

9 categorically assure and prove that they couldn't have

10 done what was alleged, and it might have been a wrong

11 date and it might have been that the note taken by the

12 third party wasn't accurate.

13 Q. So just so we are clear, you are not necessarily tying

14 that expression to a particular example?

15 A. Not at all, no. But there were examples, and I wouldn't

16 want to try and find them now, but there were examples

17 where it was quite clear that what was included in

18 a third party contribution could not have taken place

19 when it was said.

20 Q. Yes. So just to tie up that point, you are saying the

21 example being the officer saying to you, "Look, I was in

22 France on that day date"?

23 A. As an example, that could well have been.

24 Q. That is what you are talking about?

25 A. But it doesn't mean that the officer couldn't have done

 

 

42

 

1 it on a different date which, if we had had the real

2 complainant to come forward and say, we would have had

3 a chance.

4 Q. We are going to take a break in just one moment, but

5 before we do, you say in that final sentence:

6 "It became clear that some of the complainants were

7 never going to come forward and could not be found."

8 How did that colour your work and eventual reports?

9 A. I hope it didn't colour them in any great way at all,

10 because the object of the exercise was to do the best

11 job possible on the available evidence. And if my

12 efforts, coupled with those of Rosemary Nelson and her

13 staff, still failed to produce the people -- and I also

14 add and Ed Lynch -- still couldn't get people to emerge,

15 well, we did the best we could.

16 Q. But surely am I not right in saying that there must have

17 been an effect on your mind, your mindset, if people

18 didn't cooperate?

19 A. Well, only that it is a shame that they didn't, but it

20 didn't mean that they were either more or less credible.

21 It just meant that the evidence had to be weighed in

22 their absence.

23 Q. Yes. Sir, I think this is probably an appropriate

24 moment for a break.

25 SIR ANTHONY BURDEN: Mr Mulvihill, can I just clarify one

 

 

43

 

1 point with you, if I may. I'll use your term "third

2 parties".

3 A. Yes.

4 SIR ANTHONY BURDEN: And of course we have heard from

5 various third parties here before us. It is impossible

6 to ask you for an accurate assessment, I know, but based

7 on the information that was supplied by third parties to

8 detail, what sort of percentage, when you had a chance

9 to challenge that, look at it for accuracy, would you

10 say was inaccurate?

11 A. I honestly couldn't say. At least some.

12 SIR ANTHONY BURDEN: Some?

13 A. Yes, at least some was inaccurate.

14 SIR ANTHONY BURDEN: Not a majority --

15 A. And the allegations had an tendency to be very broad

16 brush and not specific in terms of times and locations.

17 Some of the allegations tended make a broad

18 reference to malpractice by detention staff but no

19 specifics, and the absence of specifics means that you

20 could investigate for ever and a day and never be

21 certain that the real complaint was ever being

22 addressed.

23 SIR ANTHONY BURDEN: Okay, thank you.

24 THE CHAIRMAN: We will have a break of a quarter of an hour

25 now. That is 25 to.

 

 

44

 

1 (11.20 am)

2 (Short break)

3 (11.45 am)

4 MR SAVILL: Mr Mulvihill, we were talking about, I think,

5 non-attendance by some complainants and your attitude to

6 that.

7 As far as the police officers were concerned, they

8 attended for interview?

9 A. Yes.

10 Q. And could you just describe their approach or attitude

11 to your enquiries?

12 A. For some, it was an attitude of resignation, in terms of

13 they knew that they had no choice but to attend and be

14 interviewed. But in the main, they were compliant and

15 their attitude was good.

16 There were one or two who, I suppose, one would

17 describe their style of being interviewed as less than

18 helpful.

19 Q. But bearing in mind the allegations that were being

20 made, the context of the allegations, the fact that this

21 was another investigation into these complaints, was

22 there in fact any behaviour that you took as being

23 unreasonable or inexplicable in the circumstances?

24 A. No. For even those who were mildly hostile, they never

25 got to the point of rudeness or threat, or anything like

 

 

45

 

1 that. They were angry.

2 Q. Now, as far as your impression was concerned, bearing in

3 mind you yourself didn't interview that many officers

4 but your colleagues did, were you given to understand

5 that there was any degree of hostility towards defence

6 solicitors, or Mrs Nelson in particular, being shown by

7 individuals or the Royal Ulster Constabulary as

8 a corporate body?

9 A. Mrs Nelson wouldn't have been present at any interviews

10 of police officers.

11 Q. No, I am sorry. Perhaps let me rephrase that. Were you

12 left with any impression, either from what you saw or

13 heard or what your colleagues told you, that members of

14 the Royal Ulster Constabulary were not well disposed

15 towards defence solicitors generally, or Mrs Nelson?

16 A. That is actually quite difficult to answer. I think

17 that there was a prevailing perception that some

18 solicitors were extremely sympathetic to some of the

19 suspect terrorist prisoners and that that wasn't well

20 received by some RUC officers. But there was never any

21 suggestion that there was open threats or open hostility

22 displayed towards any member of the legal profession.

23 Q. Why do you say that which you just have about there

24 being sympathies?

25 A. I think it was just that the feeling, as it was

 

 

46

 

1 portrayed back to me, was that certain lawyers were

2 regularly there on behalf of particular factions and

3 made the complaints on their behalf.

4 I think that there was a feeling that -- certainly

5 that Rosemary Nelson appeared only to represent one

6 faction and there may have been other solicitors who did

7 similar roles for other factions.

8 Q. Why, though, would that amount to undue sympathy as

9 opposed to simply a successful solicitor being chosen by

10 a particular category of client?

11 A. I am only reporting what I had been fed, that if you get

12 a -- you have to look at the peculiar circumstances in

13 which the RUC were operating. You know, part of your

14 remit was to combat paramilitary extremism, and I should

15 think it was a very difficult job. And if, repeatedly,

16 the same person were attending to complain, then I think

17 they would have found that hard work.

18 Q. These were comments passed back to you by your

19 colleagues. Can you remember who may have said that to

20 you?

21 A. These were comments passed back about the past and then

22 some of it displayed during interviews with -- which we

23 conducted, where comments were made by suspect officers

24 to the effect of, well, here we go again, this is

25 a contrived complaint, same as usual. That sort of

 

 

47

 

1 feedback.

2 Q. Yes, and I think some of those officers expressed in

3 interview to you the theory, if I can use that word,

4 that there was a pre-ordained tactic to complain and

5 make trouble to discredit the Royal Ulster Constabulary

6 or its members?

7 A. That's right, and an orchestrated tactic of complaint.

8 Whether or not, of course, that included members of the

9 legal profession or whether they just ended up being the

10 conduit or the complaints was never clear.

11 Q. And what was your view of that suggestion?

12 A. I don't know. I really don't know.

13 Q. You weren't and don't feel in a position to comment on

14 it from your experience?

15 A. I didn't gain any impression that the legal profession

16 were involved in any orchestrated campaign, but again, I

17 didn't -- I couldn't exclude it as a possibility.

18 Q. And what about the individual suspects themselves?

19 A. Well, again, I think I said in all the reports that

20 I submitted there were various potential options as to

21 what had really occurred, which the extreme of, yes, it

22 was an orchestrated campaign, including or not including

23 the legal profession, right through to the other extreme

24 that every allegation made was true.

25 Q. And just before I move on, did you pick up yourself, or

 

 

48

 

1 were you told by your colleagues, any impression given

2 by senior officers in the Royal Ulster Constabulary,

3 management level, that there was an unfortunate attitude

4 towards defence solicitors?

5 A. I never picked up anything in that vein, that there was

6 any sort of prevailing attitude towards any of the legal

7 profession.

8 Q. When you were conducting these interviews and your

9 colleagues were working, I just want to ask you,

10 throughout this period presumably the Commission members

11 were also assisting you?

12 A. Absolutely. They were in attendance for the vast

13 majority of interviews conducted. And in fact, those

14 that they did not attend for, there was agreement.

15 There was never any interviews where the ICPC members

16 were not advised and agreed that the interview would

17 take place, and if they were not present, it was by

18 choice.

19 Q. You will appreciate, I hope, that obviously there is

20 a difference between making up the numbers and actually

21 having a role to play. Would you say that the

22 Commission members were free to have input to you and

23 your team as to what went on in these interviews?

24 A. Most definitely. That was part of the plan, that prior

25 to interview it was agreed what the broad area of

 

 

49

 

1 questioning would be for specific officers, invitation

2 then to the ICPC member to add to that range of

3 questions and a protocol whereby if, as a result of what

4 emerged during the questioning, the ICPC member wished

5 to add further questions, there would be a method by

6 which that could be done, either the passing of a piece

7 of paper to the investigator or a brief stoppage so that

8 questions could be determined, and then the interview

9 recommenced and carried on.

10 Q. Could we call on to the screen RNI-223-138, please

11 (displayed). No need to highlight it, but these are

12 some minutes of a meeting dated 21st and 22nd September,

13 I think created by yourself -- we will see in a minute.

14 And at that period of time, 21st and 22nd September,

15 there was a real blitz of activity, I think, on your

16 part visiting Northern Ireland.

17 If we turn over the page, please, to RNI-223-139

18 (displayed) -- can we highlight the top half, thank

19 you -- we can see that there is a meeting on

20 22nd September:

21 "Ms McNally and Mrs Mitchell discuss the following

22 points and suggestions which were enthusiastically

23 welcomed:

24 "To prepare a set preamble for interviews;

25 "To prepare a questioning strategy;

 

 

50

 

1 "Determine responsive style of suspects and strategy

2 for obtaining compliance;

3 "Tape recording;

4 "Anacapa schedule of timings."

5 Just explain what that was, anacapa, please?

6 A. It means that things can be cross-referenced so that

7 actually times and locations can be linked so that there

8 is a clear pattern. It is a pattern analysis.

9 Q. Thank you:

10 "Research itemised phone billing;

11 "Determine the range of times checking."

12 So if we could remove the highlight, please, we can

13 see your signature at the bottom of the page?

14 A. Yes.

15 Q. So I think this goes, does it not, to what we have just

16 been discussing: the protocol and the input that was

17 welcomed and constructively created with the members of

18 the Commission. Would that be fair?

19 A. Yes.

20 Q. Now, turning to two individuals now, first of all

21 Mrs Nelson herself, what was your contact with her?

22 A. I may have met her more than once but I really can't

23 recall. I do have a very vivid recollection of my

24 initial meeting with her, and my recollection also is

25 that that was the same date that we interviewed

 

 

51

 

1 Colin Duffy. And I remember -- again, it was almost --

2 in terms of setting the scene, it was ensuring that we

3 had a conversation where she was able to be put at ease,

4 comfortable, content that myself and those who were in

5 my team would be the type of people who would do

6 a proper job and that she would be able to have

7 confidence in us. And from our point of view, it was

8 important that we got across the point that we really

9 did need at times to be using her good offices in order

10 to ensure that potentially reluctant witnesses actually

11 came forward and gave evidence themselves.

12 Q. Yes. But there wasn't any suggestion in the way that we

13 have discussed with Miss McNally, for example, that

14 Mrs Nelson had any right of veto over your involvement?

15 A. Oh, good Lord, know. She was a complainant. She had an

16 absolute right in terms of -- she was part of the

17 complaining side and she also had legal responsibilities

18 towards her clients. But no, she had no power of veto

19 and she never sought it.

20 Q. No. And just speaking generally, what impression did

21 you form of her as a person and as a professional

22 solicitor?

23 A. A professional -- she was very pleasant. Anything

24 beyond that would be speculation, but certainly there

25 was nothing of a negative nature whatsoever about my

 

 

52

 

1 meetings with her.

2 Q. Was there any impression formed by yourself as to this

3 aspect of undue sympathy with certain categories of

4 clients?

5 A. No, she seemed clinical, in the nicest possible

6 interpretation of that word, in terms of she was -- she

7 appeared to me to be faithfully representing the

8 interests of those she represented.

9 Q. Thank you. I'm not going to go into all the specifics,

10 but if I say this, I think you will understand me: there

11 are and were a number of weaknesses, as it were, to some

12 of the complaints, the time that they were made, the

13 level of cooperation of the complainants, and so on and

14 so forth. Did you discuss with Mrs Nelson any of the

15 reasons for that or the problem with that, or would that

16 have been seen as improper if she was a witness?

17 A. I think in the broadest terms there may have been

18 discussion as regards -- I know she made an early

19 undertaking to provide some details of her own notes

20 which would have helped to prove or disprove things

21 which were at issue. She did provide them too.

22 Q. I am going to come to those in a moment. I'm not

23 suggesting that this was said, but to ask you: was there

24 any, as it were, concession by her as to perhaps

25 inefficiency on her part or "I should have written to

 

 

53

 

1 him" or "I should have told him to come", or on the

2 contrary did she say, "I am facing an uphill task with

3 some of these people getting them to cooperate"?

4 Was there any discussion about that?

5 A. I don't think it was ever as relaxed as that where there

6 were there any concessions at all. She did

7 a professional job and she undertook to do what she

8 could to get people to come forward.

9 Q. Could we call up RNI-223-277, please (displayed). We

10 can see here a letter dated 10th December -- no need to

11 highlight it -- from you to Mrs Nelson. And if we look

12 at the middle paragraph:

13 "I am reaching the final stages of my enquiries and

14 would appreciate copies of the contemporaneous notes

15 that you offered to supply and mention in your

16 statement."

17 I am not going to go into this in detail, but there

18 came, didn't there, a point where there was a dispute

19 over timings?

20 A. Yes.

21 Q. And in relation to a complaint, and Mrs Nelson provided

22 you with her notes which went to support, in the final

23 analysis, the account given by a police officer?

24 A. They went to the heart of the matter.

25 Q. And they resolved it, as it were, in favour of the

 

 

54

 

1 police officer?

2 A. They confirmed his version of events.

3 Q. So this is an example of cooperation by Mrs Nelson?

4 A. Yes.

5 Q. That in the end operated in favour of the police

6 officer?

7 A. The absence of the provision of those notes would have

8 left an enormous question mark over one specific aspect,

9 which was really disproportionate to the whole enquiry.

10 But it really was about the credibility of one

11 individual police officer who had not performed well

12 under interview, but ultimately it was shown he had been

13 telling the absolute truth.

14 Q. Thank you. Could we put up RNI-813-058, please

15 (displayed) and highlight paragraph 62? Just to tie

16 this off, you say in your statement:

17 "The overall impression I formed of Rosemary was

18 that she was sincere and dedicated to the function of

19 representing people. When she presented me with the

20 notes ..."

21 This is what we have just been talking about:

22 "... I referred to above that confirmed the RUC

23 officer's version of events, I also felt that she had

24 been particularly even-handed. She could easily have

25 'lost the notes'."

 

 

55

 

1 A. Yes.

2 Q. The other personality I want to raise with you now is

3 Mr Ed Lynch. Again, I am not going to go into the

4 detail, because I think we are all familiar with it.

5 But this first, if I can call it, first report of yours,

6 the Lawyers Administration for Justice report, that came

7 about really through Mr Lynch?

8 A. Yes.

9 Q. And it was an odd way for it to have raised its head,

10 but Mr Lynch took the view that he had a right, as it

11 were, to be involved. Is that a fair way of putting it?

12 A. Yes, that is, I think, a fair way of putting it.

13 Q. I am going to just take you to paragraph 66 on this page

14 and highlight that, please. You told the

15 statement-taker that:

16 "I remember meeting Ed Lynch."

17 You describe him as a:

18 "... pseudo legal representative from the LAJI in

19 the United States. I say pseudo because he had very

20 little grasp of what the law required in terms of

21 proving or responding to the allegations which had been

22 made. It is for the complainant to prove the substance

23 of their allegations. You cannot simply rely on hearsay

24 evidence as to what may or may not have been said or

25 done."

 

 

56

 

1 Can we turn over the page, please, highlighting the

2 top paragraph:

3 "Edmund Lynch started from the position that if

4 someone had complained, it ought to be investigated and

5 the policeman involved should be suspended, the matter

6 taken to court and pursued on the basis of someone being

7 assumed guilty without actually considering what the law

8 requires from an evidential perspective.

9 "He often thought that the mere taking of statements

10 from complainants would be sufficient proof of

11 wrongdoing. We made it clear that for the investigation

12 to be effective, the witnesses had to be credible and

13 that they should give a statement to support the initial

14 complaint. We envisaged that we needed to speak to

15 people who saw or heard what was going on, rather than

16 those who were reporting comments as hearsay."

17 A. Yes.

18 Q. So I am going to take you to some documents relating to

19 Mr Lynch in a moment, but summarising his involvement in

20 the early stages, how did you view it?

21 A. I think what I have written there is quite clear and it

22 really does set the picture quite well.

23 I don't think he understood the system. He had

24 meetings with the ICPC and I think, from some of the

25 documents that you may be about to show to me, it is

 

 

57

 

1 quite clear that the view of him not really

2 understanding his situation or position is borne out by

3 the comments of the ICPC member.

4 I think he saw himself as somebody who would be

5 steering the Inquiry, whereas the reality of life for me

6 was that I already had a supervisor who was going to be

7 guiding me and bringing me back on the rails if I went

8 off. And he didn't have any such role.

9 And of course, I believed he was well intentioned,

10 so I wanted to keep him on board for the really specific

11 reason that he potentially had the sway to get reluctant

12 witnesses to come forward, and he did have some success

13 on one or two occasions.

14 Q. And how difficult a task did you find it to deal with

15 his well intentioned input?

16 A. He was never unpleasant. He just didn't grasp that it

17 was different here. I don't know what it was like in

18 the USA, and I know that he was an active legal

19 operative over there, because in some of his literature

20 to me he spoke about when he could attend because of

21 trials he was involved in. But it must be different,

22 because he seemed to think that he would direct

23 proceedings, which of course was not going to be the

24 case.

25 SIR ANTHONY BURDEN: Could I just seal off that point so

 

 

58

 

1 I entirely understand.

2 The standard of proof you were working to on this

3 inquiry was beyond all reasonable doubt?

4 A. Yes, sir.

5 SIR ANTHONY BURDEN: Okay.

6 MR SAVILL: Just taking you to one or two of these

7 documents, RNI-223-071 (displayed), just highlighting

8 the main chunk of text, please, we can see this is

9 addressed to you. And in the middle of the page we now

10 have:

11 "We certainly have no objection to

12 Ms Geralyn McNally participating in your investigation,

13 but we do object to any member of the RUC participating

14 in the investigation or having access to the statements

15 or identities of witnesses who come forward to meet with

16 you or Ms McNally. Our obvious concern is retribution."

17 Could we call up RNI-114-132, please (displayed).

18 This is your reply. Could we highlight it. It is dated

19 10th September 1998. You explain that, in the first

20 bullet point, you have been appointed to further this

21 matter by the Chief Constable and that you will be

22 submitting any completed report to him:

23 "There is no question of keeping witness identities

24 or statements a secret in this investigation as the

25 identities are already known."

 

 

59

 

1 In the second bullet point -- I won't read it -- we

2 can see that you explain Miss McNally's role. This is

3 an example, I hope you agree, of you using soft hands,

4 as it were, to respond to well intentioned input from

5 Mr Lynch?

6 A. Yes, indeed. And I mean, he had meetings with the ICPC.

7 I don't know if that was face-to-face -- I can't

8 recall -- with Geralyn McNally, but I felt that in terms

9 of legal people together they could determine what they

10 wanted to do if it was necessary. But he would not have

11 a role in directing or unduly influencing the way I

12 would conduct an investigation.

13 Q. Could we call up RNI-114-133, please (displayed). This

14 is again a letter, we can see, from the Lawyers Alliance

15 for Justice, and we have a date of 14th September.

16 Again, I am not going to read the whole thing, but could

17 we highlight the third paragraph down. He writes:

18 "It would be helpful if we agreed as to the ground

19 rules for your meeting with these witnesses. May

20 I suggest that you consider travelling to Lurgan and

21 meeting these individuals at Mrs Nelson's office at

22 8 William Street."

23 Could we call up RNI-114-134, please (displayed).

24 Middle paragraph highlighted. This is your response,

25 dated 14th September. You say:

 

 

60

 

1 "I am confident no witness has anything to be

2 concerned about in respect of meeting me. I regret to

3 say I cannot consider travelling to Lurgan or to meet at

4 Mrs Nelson's office at 8 William Street. I understand

5 that it has already been agreed in a bilateral

6 agreement, between Mrs Nelson and the ICPC officials,

7 that meetings will take place at the ICPC offices in

8 Belfast. In respect of the issue of confidentiality of

9 witnesses, I believe I address this in my earlier letter

10 to you."

11 Again, just very quickly, this is a response by you

12 damping down, perhaps, Mr Lynch's desire to take a more

13 fulsome role in directing your activities?

14 A. Yes.

15 Q. Is that fair?

16 A. Yes, indeed.

17 Q. Could we call up RNI-223-105, please (displayed)?

18 Again, I don't know if we can highlight the whole thing

19 because it is rather small. Good. Thank you.

20 This is a fax from him to you, dated 16th September.

21 Again, I'm not going to read it all, but the first

22 paragraph:

23 "The following safeguards are essential. The

24 witnesses will be granted immunity from prosecution for

25 any alleged crimes which are the subject matter of their

 

 

61

 

1 statements."

2 Number 3:

3 "The ICPC will hold each witness ..."

4 I think it says "harmless":

5 "... and indemnify each witness for any claims for

6 of defamation, slander, libel or similar claims which

7 are in any way related to their cooperation with the

8 ICPC or statements given to the ICPC as part of the

9 pending investigation."

10 And number 4:

11 "The statements of the witnesses will be recorded by

12 a certified reporter and a copy of the transcript of

13 same provided to each witness and to me without charge."

14 Now, what I would just like to ask you in relation

15 to that is: would you say that this was an example of,

16 as it were, Mr Lynch really pushing the boundaries of

17 his entitlement?

18 A. Yes, it was completely outside the remit of the way

19 complaints are investigated. It was another, I think,

20 illustration of a failure to understand the role of the

21 ICPC.

22 Q. And if we could just call up RNI-223-114 (displayed),

23 just don't highlight anything at the moment. This is

24 a meeting with Mr Lynch at the ICPC offices on

25 21st September. Do you see that?

 

 

62

 

1 A. Yes, indeed.

2 Q. And these are the Commission's notes. Could we just

3 highlight the top part of the main paragraph, please:

4 "Mr Lynch, despite having just come from a meeting

5 with the Chairman and Chief Executive during which the

6 Commission's role had been fully explained, appeared not

7 to have grasped Miss McNally's role in the matter, or

8 indeed the purpose of his own presence."

9 Do you see that?

10 A. Yes.

11 Q. If we just drop down three lines, we see your name in

12 the middle:

13 "Commander Mulvihill pointed out that he was not

14 aware of past examples of such retribution. The

15 Commander went on to explain (very patiently) to

16 Mr Lynch how he came to be involved in the investigation

17 and pointed out that the Chief Constable of the Royal

18 Ulster Constabulary had been happy to bring in an

19 outside investigator, which many forces in the

20 United Kingdom did."

21 If could we go to the bottom of the page, please,

22 and highlight the bottom part. Could we go up five

23 lines from the bottom, middle of the page:

24 "[Exclamation mark]. Commander Mulvihill reiterated

25 the investigative procedure and pointed out to Mr Lynch

 

 

63

 

1 that he had not grasped the Commission's role as the

2 independent element of the investigation, nor did he

3 seem to understand that as a co-complainant, and not

4 a legal adviser to Rosemary Nelson and Colin Duffy, as

5 he had made clear, he was not empowered to interpose in

6 their interviews."

7 So, again, I hope that paints the picture you are

8 seeking to tell us about, that Mr Lynch didn't grasp his

9 place in the greater scheme things?

10 A. Yes. It was all done in a very friendly manner, but

11 ultimately he had to be advised that he simply wouldn't

12 be as influential during the investigative aspect as he

13 would have wished to have been.

14 Q. No. And I think if we can call up RNI-114-137.501

15 (displayed), if you will forgive my expression, all's

16 well that ends well. If we highlight this letter of

17 25th September from Mr Lynch to you, perhaps it will

18 show us all what you are driving at when you say that he

19 was well intentioned, because Mr Lynch writes:

20 "Please accept this brief note of thanks for the

21 cooperative attitude you and your team exhibited on

22 Monday and Tuesday of this week.

23 "I understand there might be some uncertainty on

24 your part as to my role in the proceedings. I assure

25 you that I share your goals, seeking the truth and

 

 

64

 

1 correcting any injustice or wrongdoing if evidence the

2 same is adduced. I have informed Chairman Donnelly of

3 the ICPC that in my opinion you and your team are

4 conducting a credible and thorough investigation."

5 So, a very pleasant letter from him to you following

6 your meetings.

7 Now, I want to just turn now, if I may, to your

8 actual reports. As far as I understand it, they were

9 completed in January 1999?

10 A. Yes.

11 Q. Just tell us very quickly, please, who wrote them? How

12 were they produced?

13 A. My recollection is that members of my team submitted to

14 me drafts of various aspects. There are a series of

15 headings in all the reports, and drafts were submitted

16 of our findings and then I would have revised and

17 polished the reports so that I was content to sign them

18 off as an accurate reflection of my findings.

19 Q. So as far as you were concerned, the reports contained

20 your, Commander Mulvihill's, opinions and findings?

21 A. Yes.

22 Q. And as a result of handing in and producing these

23 reports, you received good news from the ICPC. And if

24 we could call up RNI-218-144, please (displayed), and

25 perhaps highlight that, a letter of 19th February from

 

 

65

 

1 the Chief Executive. And if we just pay close attention

2 to the title first of all, that is "The Complaint

3 involving Mrs Nelson and [C208]":

4 "Thank you for your report."

5 And enclosed is a copy of the Commission's

6 statement. And if we turn over the page, please, to

7 RNI-218-145 (displayed), highlighting all that. Again,

8 I'm not going to read it all, but that in essence was

9 the tick in the box to your endeavours?

10 A. Yes.

11 Q. And it was very brief: one page. If we go to

12 RNI-223-324 (displayed), bear in mind of course that

13 C208 was a new investigation, we have here the statement

14 in relation to the Lawyers Alliance for Justice, the

15 Mrs Nelson and Mr Duffy aspect of the Inquiry. And if

16 we look in the middle of the page -- just highlight that

17 bold paragraph -- we can see that it says:

18 "The following statement will confirm that by the

19 conclusion of the investigation it was satisfactory, but

20 that there were aspects of the earlier stages that gave

21 rise to serious concerns as to its proper conduct."

22 And I'm not, again, going to go through it, but you

23 will recollect, I expect, that after this first page,

24 there then followed a history written by Miss McNally of

25 the initial Complaints and Discipline investigation then

 

 

66

 

1 leading up to your own inquiry into the matter?

2 A. Yes.

3 Q. And within this document she summarises, if we could go

4 to RNI-223-326 (displayed) and highlight the bottom of

5 the page, the reasons behind the unsatisfactory and

6 unacceptable nature, in her view, of the initial

7 inquiry; yes?

8 A. Yes.

9 Q. But in any event, could you just tell us, please: what

10 was your reaction and feeling to receiving, as I said,

11 the ticks in the box to your work?

12 A. I was pleased. At the time I submitted the various

13 reports, which followed not only the conclusion of the

14 direct interviews and the broad investigation,

15 I discussed my findings with the ICPC member, who

16 endorsed all of what I was about to write. But of

17 course, ultimately, when one is in that position, one

18 looks for the tick in the box, as you have aptly

19 described it, which came in the guise of a certificate

20 of satisfaction, which was clearly what I was seeking to

21 achieve, and thankfully that is what emerged. So I was

22 pleased.

23 Q. It may seem a stupid question, but why did you need to

24 discuss with the Commission prior to reporting what you

25 were ...?

 

 

67

 

1 A. That had been the nature of the relationship throughout.

2 There were no subtleties; everything was done above

3 board. I met with the ICPC member regularly. I assured

4 her from the outset that there would be no trickery. I

5 would discuss with her everything that I proposed to do

6 in terms of investigative thrust, research, interview

7 strategy and then outcome.

8 I don't think you could have had the relationship

9 that my team had with the ICPC and then have written the

10 report with the recommendations without reference to

11 them.

12 Q. Because I presume what you would say is that it would

13 have been rather farcical for you to have kept it close

14 to your chest, released it and then had no certificate

15 of satisfaction --

16 A. Absolutely. That is exactly right.

17 Q. And obviously it had to be your report and your

18 findings, and you weren't, I presume, prepared to be

19 bent one way or the other --

20 A. That's exactly right.

21 Q. -- in the wind?

22 A. I wouldn't have moved, but I was prepared to listen.

23 The point about it was that if something had emerged

24 which, for example, the ICPC member had thought merited

25 a recommendation of either criminal charges or

 

 

68

 

1 disciplinary charges, I would have listened and we would

2 have discussed it.

3 So that -- I mean, the outcome is that my report was

4 a reflection of our joint findings.

5 Q. Yes. Just dealing with the nub of what you actually

6 did, these complaints were historic to an extent?

7 A. Yes.

8 Q. You were treading in other people's footsteps; they had

9 been looked at. An old word, which you probably

10 remember in your career, of corroboration was sorely

11 lacking, I think you would say?

12 A. That's right. The absence of corroboration doesn't

13 always preclude proceedings, but in the circumstances

14 and given the historical nature of some of the

15 allegations, there was no obvious clear evidence to

16 support prosecution, a recommendation which was borne

17 out by the view of the DPP.

18 Q. Because at the end of the day -- and feel free to

19 disagree with me -- you were balancing two completely

20 opposing accounts?

21 A. Yes.

22 Q. Against one another?

23 A. That's right.

24 Q. There was no medical evidence, no passing witness, no

25 audio transcript. I appreciate you viewed some video

 

 

69

 

1 tape?

2 A. Nothing remotely even on the video that supported the

3 notion that aspects of the allegation had taken place,

4 because there was no interaction, human response to

5 somebody saying something to you which maybe made you

6 animated in the chair, there was nothing.

7 Q. No, of which perhaps television is more fond than real

8 life, sudden breakdown in interview and confession, no

9 trip-up by the cunning point raised?

10 A. No anger or aggression in response to something --

11 nothing at all.

12 Q. What I want to ask you, Mr Mulvihill, is that was the

13 reality as you came to find it?

14 A. Yes.

15 Q. Was that what you expected when you started this? Did

16 it slowly dawn on you that this was the reality, or not?

17 A. I tried to go into the investigations with no

18 pre-conceived notions, and I recognised that in the

19 human condition that's not easy.

20 But I was prepared for whatever would emerge and if

21 credible evidence came forward, whether that was visual

22 evidence through video, audio, I didn't know what the

23 system was when we went there, or whether credible

24 witnesses emerged. But they never did. They never

25 emerged where there was an independent element which

 

 

70

 

1 swung it towards clearly being able to say, yes, that

2 merited prosecution or disciplinary proceedings.

3 Nothing like that emerged.

4 Q. And you have already been asked by the Panel about the

5 standard of proof. How heavily did that weigh in your

6 mind?

7 A. I was bound by it. At that time the standard of proof

8 was beyond reasonable doubt. I think there has been

9 a revision of that.

10 Q. In 2000, it changed, I think, to the balance of

11 probabilities.

12 A. That's right. But it was very, very clear-cut in 1998.

13 It was beyond reasonable doubt. Probabilities did not

14 come into it.

15 Q. Could we call up RNI-813-061, please, which is your

16 statement (displayed). Could we just highlight the last

17 paragraph. Then we are going to go over the page to

18 RNI-813-062 (displayed):

19 "I cannot now remember all the details of the

20 report, but do remember coming to a specific conclusions

21 that I was personally happy with. As far as I can see,

22 there were three ..."

23 And if we highlight that paragraph:

24 "... possible conclusions; namely, the allegations

25 were supported and provable; that they were made up by

 

 

71

 

1 the complainants; or that they were made up with the

2 help and assistance of the solicitor representing the

3 suspect. I recall that in each instance there was

4 insufficient evidence to prove conclusively that the

5 allegations were well founded. On this basis,

6 I recommended no prosecution and no disciplinary

7 proceedings should be brought against any of the police

8 officers. My findings do not mean that everyone involved

9 was as pure as the driven snow, but in the absence of

10 evidence against the RUC ..."

11 I think you mean the officers, rather than the body

12 corporate?

13 A. Of course.

14 Q. "... there was a clear route to the conclusions that

15 I drew and I remain comfortable with them."

16 I just want to dwell on that for a moment. You say:

17 "My findings do not mean that everyone involved was

18 as pure as the driven snow."

19 What do you say were the actual meaning and

20 implication of your findings?

21 A. Evidentially, the allegations were not proven and so,

22 therefore, I recommended no action. Otherwise, of

23 course, I don't know. And all I did was to again try to

24 be even-handed. I do not know whether any particular

25 officer on any particular occasion may have said

 

 

72

 

1 something or done -- or did something which was unlawful

2 or contravened disciplinary regulations. I don't know,

3 but the evidence certainly did not support any

4 prosecution.

5 Q. Thank you. And as far as the involvement of legal

6 representatives -- we have touched on this already --

7 was concerned, slightly outside of your ambit, but were

8 you left with any impression or view as to the

9 possibility of, innocent or otherwise, involvement of

10 legal representatives?

11 A. I simply couldn't know.

12 Q. The reports were dispatched to the Chief Constable,

13 Mr Flanagan?

14 A. Yes.

15 Q. And also to the Complaints and Discipline branch of the

16 Royal Ulster Constabulary?

17 A. Yes.

18 Q. And as I have already explored with you, after they had

19 been sent on, you received the certificates of

20 satisfaction?

21 A. Yes.

22 Q. And if we could call up RNI-228-037 (displayed), this is

23 a letter to you, we can see at the bottom of the page,

24 from Mr Flanagan. Could we highlight the text, please?

25 It is dated 25th March 1999:

 

 

73

 

1 "Thank you for your reports in relation to your

2 investigation into complaints made on behalf of the late

3 Mrs Rosemary Nelson and to your review of the original

4 investigation by RUC officers of some of these matters.

5 I greatly appreciate your work in this regard.

6 "In connection with item 7 of your Terms of

7 Reference, I am of course aware that nothing arose

8 during your investigations which led you to conclude

9 that any aspect required separate or independent

10 investigation by you or investigation by another

11 officer. Now that you have submitted your reports, is

12 this still your view?"

13 Now, we will recall that paragraph 7 gave you the

14 option of bringing something up independently if it came

15 up in the review, and this was an enquiry from

16 Sir Ronnie Flanagan to you almost, as it were, by way of

17 belt and braces, I think.

18 If could we call up RNI-228-110 (displayed), you

19 reply -- we can highlight this letter of 7th April --

20 thanking him for his letter. And looking in the

21 penultimate paragraph:

22 "However, for the record and for the sake of

23 completeness, I can confirm that it remains my view that

24 nothing arose during my investigations which led me to

25 conclude that any aspect of Terms of Reference item 7

 

 

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1 required separate or independent investigation by either

2 myself or another officer."

3 So we are going to move on, as you will anticipate,

4 to new matters in a moment, but you had done the job,

5 you had got your certificates of satisfaction. Was

6 there any debriefing? Were there any phone calls from

7 any of the personalities involved or did you hear very

8 little?

9 A. No, no, it was quite quiet, actually. Having submitted

10 the three major investigation reports -- and I also

11 submitted the review at the same time, which was

12 a separate document and which I authored exclusively --

13 it was quite quiet. And I expected that it would be

14 quiet on the basis that all the discussion had taken

15 place with the ICPC member, there were not going to be

16 any emerging issues, I thought anyway, which would

17 require any further investigation of the three major

18 complaints. And of course, having in mind that the ICPC

19 also had access to my terms of reference -- and it was

20 their guideline as well, because it was agreed -- at no

21 time did anybody raise with me that I should perhaps be

22 looking at further investigating anything that was in

23 the review. That never emerged.

24 So I didn't expect much to happen.

25 Q. No. Now, I'm not intending to take you through, you

 

 

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1 will be pleased to hear, no doubt, your reports -- they

2 are voluminous -- but can I just, as quickly as I can,

3 take to you certain parts of them. RNI-227-014

4 (displayed): this, I hope -- yes, it is -- shows the

5 conclusions to this particular report, which was the

6 Lawyers Alliance for Justice, and you set out, as you do

7 in all your reports, a number of factors that were, as

8 it were, in your mind. And again, I'm not going to go

9 through all of them, but we can see if we highlight 1, 2

10 and 3, that you set here out in writing the options:

11 "1. The allegations are true and some or all of the

12 names guilty of the matters alleged.

13 "2. The allegations are malicious and fabricated

14 with the intention of discrediting the reputation of the

15 Royal Ulster Constabulary and the respective officers

16 with the knowledge and cooperation of Mrs Nelson.

17 "3. The allegations are malicious and fabricated by

18 the witnesses, perhaps orchestrated by others for the

19 above or other reasons, with the innocent cooperation of

20 Mrs Nelson and Mr Lynch, who have accepted the hearsay

21 evidence that they have."

22 So this conclusion section, I hope I am right in

23 saying, was you showing your working, showing your

24 methodology?

25 A. Yes.

 

 

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1 Q. And listing the factors that went towards your ultimate

2 recommendation and finding; is that fair?

3 A. Yes, it is.

4 Q. You mention a number of factors in this section that we

5 have touched on: delay, the late complaints, and so on.

6 You also touch on one matter that I just want you to

7 comment on: namely, the strategy that we have discussed

8 previously of causing trouble for the RUC, discrediting

9 them?

10 A. Yes.

11 Q. And I just want to ask you: you don't, I think, believe

12 that was a very great success, if that was in fact the

13 strategy?

14 A. I don't think I make a comment on it, really. Life went

15 on, whether it was a strategy or not, the RUC conducted

16 their investigations and conducted their ordinary

17 policing function, so far as the word "ordinary" applied

18 at the time.

19 Q. And turning to page RNI-227-017 (displayed), top

20 paragraph, if we could highlight that. I just want your

21 comment on this:

22 "From a criminal proceedings standpoint as opposed

23 to a disciplinary angle, the majority of the comments

24 alleged would be unlikely to amount to a strong basis

25 for a charge of attempting to pervert the course of

 

 

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1 justice. Many of the alleged comments, despite having

2 been made in a very adult environment, have an element

3 of school ground of adolescent name-calling about them."

4 Do you think that is entirely accurate? Do you

5 stand by that?

6 A. Well, I did at the time certainly, and I think I do now

7 in terms of I think, I believe that some of the comments

8 made about Mrs Nelson -- and I hasten to add allegedly

9 made -- were derogatory if they occurred and childish.

10 They were rude, if they happened. And I have made that

11 point there.

12 Q. But would you accept from me that there were far more

13 serious remarks made as well as those?

14 A. Yes, indeed. That wasn't an exclusive comment.

15 Q. That is what I wanted you just to comment on.

16 A. Indeed.

17 Q. Because as we have heard, and as you know, there were

18 some deeply unpleasant and offensive remarks and,

19 indeed, on occasions threats to her safety?

20 A. Certainly that is what was alleged.

21 Q. If we look at RNI-227-018 (displayed), we can see on

22 that page your recommendations, as we have discussed:

23 "In the absence of any independent corroboratory

24 evidence, no prosecution, no disciplinary proceedings"?

25 A. Yes.

 

 

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1 Q. Could we go to RNI-220-018, please (displayed). These

2 are your conclusions in the C208 matter, and we can see

3 there -- again, I am not going to read them all -- your

4 history of your investigations and your enquiries, and

5 we can see how you reach your conclusions.

6 If we could turn the page, please, you go on on this

7 page to make thoughts on paper. Could we highlight the

8 fourth paragraph from the bottom, please. We can see

9 there:

10 "The interviewing officers all appeared very

11 professional and competent. They readily answered the

12 questions asked of them and strongly denied the

13 allegations ..."

14 All I am just illustrating here, I hope, is that you

15 were setting out your thought processes for all to see;

16 yes?

17 A. Yes.

18 Q. Could we go to RNI-220-019 -- yes, the next page --

19 please (displayed), third paragraph up? Can we

20 highlight that:

21 "Ultimately, there is no way of knowing whether any

22 derogatory or threatening remarks were made to [C208] by

23 police officers whilst he was in custody. Every

24 available piece of tangible evidence -- video,

25 contemporaneous notes, other documentation -- tends to

 

 

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1 indicate that no untoward incident took place. The

2 officers subject to complaint were entirely cooperative

3 and presented as professional, sensible and honest,

4 answering all questions and refuting all allegations in

5 a comprehensive and believable fashion."

6 I don't want to get into the detail, but that comes

7 back to what we discussed: that we were faced with one

8 account versus another?

9 A. Yes.

10 Q. The final matter involves Mrs Nelson and Mr Duffy,

11 RNI-226-092 (displayed). These are your conclusions

12 again set out. Just excuse me for a moment. (Pause)

13 You say, if we can highlight the second paragraph

14 down:

15 "In this report of the further investigation into

16 these complaints, there is very little to add to the

17 comprehensive summary contained in the conclusions

18 section of AC Stewart's report of the initial

19 investigation, points 1 to 9, and with which I concur."

20 So a slight difference of approach here. You are

21 content to cite the early investigation findings.

22 Again, at the risk of stating the obvious, I presume you

23 challenge those in your own mind rather than taking them

24 as read?

25 A. Yes, indeed.

 

 

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1 Q. And could we remove the highlight, please. For the rest

2 the page, you express one or two of your own views. And

3 could we go over the page, RNI-226-093 (displayed), the

4 second paragraph down highlighted, please. You say

5 this:

6 "There is no substantive evidence in relation to the

7 criminal accounts or the disciplinary process."

8 Just help me with that: what do you mean by "no

9 substantive evidence"?

10 A. I guess you could delete the word "substantive" and it

11 would stand alone: no evidence to support any criminal

12 or disciplinary account.

13 Q. But you had evidence, didn't you?

14 A. We had people's submissions, and I think if we were to

15 go backwards, one of the big issues there was a dispute

16 about timings. And the contribution by Mrs Nelson of

17 her notes clarified something which had hitherto

18 remained unresolved and that was particularly helpful.

19 Q. But I believe Mr Duffy made a statement?

20 A. He did make statements, yes.

21 Q. I am sorry, I don't want to be difficult. Were you not

22 considering that as evidence?

23 A. Oh, indeed. But it -- like anything else, it has to be

24 weighed against what other evidence is available. And

25 if it didn't emerge as stronger than other

 

 

81

 

1 contributions, then it would have been weighed on the

2 scales, and it didn't amount to something which merited

3 a recommendation for prosecution.

4 Q. Would it perhaps read -- I'm not going to say better,

5 but would it be more, or clearer to me if it said:

6 "There is no sufficiently persuasive evidence ..."

7 A. I think that would have been a better way of putting it.

8 Q. Thank you. Now, before I move on very briefly to the

9 review document, is there anything -- because I have

10 taken a very short approach to the actual reports you

11 wrote -- that you would like to add in relation to your

12 reports?

13 A. No, they were comprehensive and they were accepted --

14 THE CHAIRMAN: There are some questions we would like to

15 ask.

16 DAME VALERIE STRACHAN: Before counsel moves on, I just

17 wanted to ask you, Mr Mulvihill, given that in each case

18 the complainant was an individual --

19 A. Yes.

20 DAME VALERIE STRACHAN: -- and the respondents would be at

21 least a pair of officers, what prospect do you think you

22 ever could have had to have had supported and provable

23 allegations?

24 A. I think -- I know we are going to cover my review in

25 a moment, but I think my principal recommendation in the

 

 

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1 review was that, given that many of these allegations

2 related to alleged events that occurred during

3 interview, the absence of audio as well as visual was

4 critical, because if the audio had been in existence,

5 then you either had proof positive or negative that

6 something had happened. And I think your point is very

7 well made: that you have got two police officers

8 refuting what is alleged and no other evidence apart

9 from an individual saying it did.

10 DAME VALERIE STRACHAN: Yes, a problem.

11 Can I also just follow up the point about Ed Lynch.

12 Of course, Ed Lynch is not himself the subject of this

13 Inquiry, but he was operating, as you say, from

14 a different legal system anyway.

15 A. Yes.

16 DAME VALERIE STRACHAN: But also at that time the ICPC

17 system was itself quite widely distrusted as being

18 inadequate for the task. Do you think it is possible

19 that his interventions might have been designed to, as

20 it were, remedy the perceived weaknesses of the ICPC

21 system?

22 A. I must say that I didn't know that there was any concern

23 about the ICPC system. They were quite robust, as far

24 as I was concerned. I had absolutely no doubt when I

25 was interacting with the supervising member that I was

 

 

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1 being supervised.

2 DAME VALERIE STRACHAN: Indeed. When I am saying that there

3 was widespread distrust, I am simply reflecting evidence

4 that has already been given to us on that point. But

5 you don't think that he was simply looking at the

6 system, seeing that it did have weaknesses and trying

7 to, as it were, bolster it up further?

8 A. He never articulated that. But equally, I must say that

9 I never viewed it in that way. But it just seemed to

10 me -- and that was supported by the view of the ICPC

11 member -- that he did not grasp the system.

12 DAME VALERIE STRACHAN: Thank you.

13 THE CHAIRMAN: Thank you.

14 MR SAVILL: Sir, I am mindful of the time.

15 THE CHAIRMAN: Should we have a quarter of an hour break now

16 and we will resume at five to one.

17 MR SAVILL: Yes, I would endorse that, because I would hope

18 that we could finish Mr Mulvihill's evidence not too

19 long thereafter and avoid having an hour for lunch and

20 then coming back much later in the day.

21 THE CHAIRMAN: Yes, right.

22 MR AIKEN: My Lord, I wonder if I may, before you rise, just

23 following on from the discussions we were having last

24 evening, there is something that occurs to me that I

25 would like the Panel to consider, and that is that when

 

 

84

 

1 we rise today, as I trust we will, for the summer --

2 THE CHAIRMAN: We will deal with anything you wish to say to

3 us after the conclusion of Mr Mulvihill's evidence.

4 MR AIKEN: Indeed, my Lord.

5 THE CHAIRMAN: Not now.

6 (12.39 pm)

7 (Short break)

8 (12.50 pm)

9 MR SAVILL: Now, I would just like to ask you, going back, I

10 am afraid, to your report, the complaint by C208. Could

11 we put on to the screen RNI-220-020 (displayed). This

12 is slightly out of sync, but just to in fairness give

13 the complete picture, we have spoken of the standard of

14 proof, the lack of corroboration and the basis upon

15 which your findings were made. But at the bottom of

16 this page in the final paragraph, you say:

17 "Equally, whether Mr [C208's] account is either

18 true, a complete fabrication or somewhere between will

19 also remain a mystery. However, I'm satisfied that

20 there is not a shred of evidence against the officers

21 complained of."

22 Yes?

23 A. Yes.

24 Q. And do you stand by that?

25 A. I do. I think your earlier wording about provable

 

 

85

 

1 evidence might have been a better way of phrasing it,

2 but then that is the benefit of your background.

3 Q. You are saying it is not that there wasn't any evidence,

4 I think -- did I say sufficiently persuasive?

5 A. That's right.

6 Q. Thank you. Moving to the review that you conducted and

7 indeed authored, this was a different beast, was it not?

8 A. Yes.

9 Q. And we have discussed that, what I'm sure probably seems

10 a long time ago now, earlier today. Just in a nutshell,

11 please, what was its purpose?

12 A. For me, I think its purpose was to establish a set of

13 protocols which would prevent this happening again and

14 to come up with some recommendations which had some

15 meat, where some of the -- if there were

16 misinterpretations, if there were mistakes made, that

17 couldn't happen again.

18 Q. We have also spoken about terms of reference and their

19 importance, and so on and so forth?

20 A. Yes.

21 Q. I think it is right to say that you utilised a letter to

22 frame the parameters of your review?

23 A. It would be helpful to see it.

24 Q. If we could just put up on to the screen, RNI-226-031

25 (displayed). This is a letter from Mr Donnelly to

 

 

86

 

1 Mr Flanagan, dated 19th June 1998. Do you recognise

2 that?

3 A. Yes, I do.

4 Q. I'm not going to read it all out, but we can see, if we

5 look at the bottom of the page, the last two lines:

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

7 Commission representatives to challenge and redress the

8 situation, the investigation has been obstructed and

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

10 final outcome is irretrievably flawed."

11 Of course, this is before you become involved. This

12 is part and parcel of why you became involved?

13 A. Yes.

14 Q. And it sets out a number of the problems, if we could

15 remove that highlight. Could we just highlight the

16 paragraph in the middle of the page:

17 "Throughout this investigation, the Commission

18 representatives had extreme difficulty in exercising

19 their statutory duty to direct and supervise the

20 Inquiry. The officer allocated to the investigation

21 appeared to have a problem in accepting the authority of

22 the Commission in these matters and in following the

23 explicit directions given to him."

24 Could we highlight the last paragraph on that page:

25 "There were difficulties experienced in securing the

 

 

87

 

1 attendance of police officers for interview."

2 Third line from the bottom:

3 "There was a general air of hostility to the

4 investigation on the part of those police officers whose

5 interviews were supervised by the Commission, and the

6 demeanour of the interviewing officer did little to

7 change this attitude."

8 Turn over the page, please, and highlight the top

9 three lines:

10 "It was made absolutely clear to the interviewing

11 officer that the Commission required no statements to be

12 requested from police officers prior to their being

13 interviewed. In defiance of this direction, statements

14 were requested in advance on three occasions."

15 Could we then highlight the next paragraph:

16 "Throughout the investigation, the supervising

17 Commission member and senior staff of the Commission

18 consistently reminded the interviewing officer of their

19 expectations and their displeasure at these not being

20 fulfilled."

21 And the final paragraph:

22 "Along with the supervising Commission member, I am

23 concerned that this investigation has been irreparable

24 undermined and that the facts of this case, whatever

25 they might be, cannot now be established."

 

 

88

 

1 A whistle stop tour, I am afraid, through that

2 letter, but what I want you just to comment on is that

3 letter contained a number of complaints, a number of

4 concerns?

5 A. That's it. It was concerns, not complaints.

6 Q. And you used that letter to inform your review?

7 A. I did. I think I used that and some notes provided to

8 me by the ICPC member concerned, in other words

9 Geralyn McNally.

10 Q. Now, you may not be able to remember: how did this

11 letter come into your possession? How did it come to be

12 that you used it?

13 A. I don't know actually. I think it was within a bundle

14 of documents provided to me -- clearly provided to me by

15 the RUC. As to who in particular, I don't know. If it

16 is not in the index -- because I know it was a document

17 at some point. Whether or not that illustrates how it

18 came into play, I can't recall.

19 Q. Because you will be aware, of course, that there was

20 a degree of unhappiness, to use as neutral an exception

21 as I can, by Mr Donnelly that this letter, in

22 confidence, had been used by you to inform your review?

23 A. Only later.

24 Q. I am going to come to that.

25 A. Not initially.

 

 

89

 

1 Q. But there was later a degree of unhappiness.

2 A. Eventually.

3 Q. What I was going to ask you was: as far as you knew or

4 are able to tell us, what did Miss McNally know about

5 the use of this letter for the review?

6 A. I can't recall.

7 Q. Was it any secret that you were using this letter?

8 A. No. The issue was she was not supervising my review,

9 because that was not within the remit of the ICPC. But

10 there was no mystery or secrecy around it. She knew,

11 because she had my terms of reference, item 7 of which

12 said "conduct a review".

13 Q. But I am concerned about this letter. Can you remember

14 whether you told her about it?

15 A. No, I can't.

16 Q. Do you remember whether you ever spoke to Mr Donnelly

17 about using it?

18 A. I can't remember.

19 Q. But as far as you are concerned, you were entitled to

20 use it, you had been given it and it was in fact very

21 useful?

22 A. It was very useful. I did believe that I had an implied

23 authority to use it because, you know, here in the

24 written word was the actual chairman of the ICPC

25 articulating the background as to why a certificate had

 

 

90

 

1 not been granted previously. And I could think of no

2 better basis upon which to commence a review than the

3 points that he had outlined.

4 Q. Yes. As to the purpose of the review, let me give you

5 two options, or one or two options. Do you think that

6 it was a review designed to be constructive, to learn

7 and to rebuild the relationship between the RUC and the

8 ICPC, or do you think it had rather more of

9 a disciplinary flavour to it?

10 A. I felt it was the former.

11 Q. And as a result of that, you created a document to fit

12 with that theme, did you?

13 A. Yes.

14 Q. And if we could call on to the screen, please,

15 RNI-226-003 (displayed), we can see at the bottom of the

16 page, please, the final paragraph, what you describe as

17 the "ultimate review":

18 "This will be a reinvestigation. However, it having

19 been agreed that the ICPC were registering concerns

20 rather than complaints, it became clear that an

21 assessment of the process of how the enquiries were

22 conduct was more appropriate. This is, therefore,

23 a review of the RUC's investigative procedures rather

24 than of any specific material produced by that process.

25 Later in this report, I will comment on some of the

 

 

91

 

1 specific issues raised by the ICPC chairman."

2 And if we turn over the page, please, the middle

3 paragraph, we can see from this that -- underlined in

4 fact:

5 "I have taken as the basis of my review that letter

6 from the chairman."

7 So you were absolutely up front in your document, in

8 your report, your review, that you were using this

9 letter?

10 A. Absolutely.

11 Q. And I'm not going to read them to you, but over the next

12 few pages, you paraphrase or you quote from that letter?

13 A. Yes.

14 Q. Pre-empting what you are going to go on to talk about?

15 A. Yes.

16 Q. We have already looked at some of those in the letter.

17 I am only going to ask you generally about your findings

18 in the review, and to that end -- just excuse me (Pause)

19 -- could we look at RNI-226-023 of the same document

20 (displayed), and could the paragraph be highlighted,

21 please:

22 "It is my view that a breakdown of communication

23 coupled with a series of unrelated administrative and

24 organisational problems combined to create an air of

25 concern which was wholly at odds with and

 

 

92

 

1 disproportionate to the actual situation. Whilst

2 acknowledging that the various complaint investigations

3 might not have been conducted in a truly outstanding

4 fashion, they were adequate, but adversely complicated

5 by the various issues outlined."

6 Now, you and indeed, no doubt, others might

7 criticise me and say, "You have plucked just one

8 paragraph", but what I have tried to do is to find the

9 paragraph that seems to me, at least, to summarise your

10 overall findings.

11 A. Yes, I think that was the -- you have rightly gone to

12 the conclusion of my discourse, and that is what I found

13 followed by the recommendations.

14 Q. I don't want to go into it in too much length, but did

15 you feel a degree of -- I hesitate to use the word

16 "sadness" that there had been this apparent breakdown in

17 relation to, in between the parties in the first

18 investigation?

19 A. I think it was disappointing, because having gone

20 through several months of the inquiry myself, or

21 investigative work, and enjoyed what can only be

22 described as a very productive and sound liaison with

23 the ICPC, I was just disappointed that it had ever come

24 to this.

25 Q. And if we could call up page RNI-226-021 (displayed),

 

 

93

 

1 please, and highlight the paragraph underneath issue 10,

2 you say -- and I'm not concerned so much with the issue

3 but the last sentence:

4 "I found nothing which supports the contention that

5 'the investigation has been irreparably undermined'."

6 A. Yes.

7 Q. So whilst you may have, as you have told us, had

8 a degree of disappointment as to the breakdown, there

9 may have been problems of one type or another, you were

10 certainly not of the view that the whole thing was

11 a disaster?

12 A. No, not at all.

13 Q. And a total waste of time?

14 A. No.

15 Q. Just expand on that for me, please?

16 A. Well, there had been difficulties, and the letter which

17 I used as the basis was a summing up of a range of

18 issues which had become causes of concern. And

19 I felt -- I hope that my report reflects that -- that

20 a lot of these issues could and should have been raised

21 earlier at more senior level. If those who are at the

22 coalface of investigations or supervision find that they

23 are running into obstacles with the person that they are

24 supervising or being supervised by, then raise it, go up

25 the rank structure, go up the grade structure, raise it

 

 

94

 

1 with those in a more senior position so that they can go

2 across to their counterparts and say, "We have

3 a problem". Flag it early, get it addressed. That is

4 my approach to life generally and that is what I adopted

5 on this occasion too.

6 Q. Yes. Could we just call up a document, RNI-228-193

7 (displayed). This is a letter from Mr Donnelly to

8 Mr Ingram dated 4th May. Could we highlight the

9 penultimate paragraph, please. I am going to come to

10 the commentary on your report in a moment, but just

11 looking at the last three lines, Mr Donnelly says:

12 "My analysis substantially confirms many of the

13 concerns raised by my colleague. It also lends credence

14 to two major allegations in respect of the RUC's

15 response to Mrs Nelson that her complaints were not

16 treated seriously and that her character was associated

17 with those of her clients."

18 Do you accept that that is in fact what your work

19 did: lent credence to these allegations?

20 A. What I found was that if what had been alleged in terms

21 of abuse or threats to Mrs Nelson -- never to her face

22 of course, always via a third party -- if that were to

23 be the case, then I dealt with that in the course of the

24 complaints. They were not substantiated.

25 I don't think I made any particular comment about

 

 

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1 how seriously such matters were treated, and I have

2 a recollection -- but it is a long time ago -- of some

3 comment I made -- I certainly made no negative comment

4 about her character and I don't recall whether there was

5 any particular reference to it in any of the complaint

6 reports I did. You would have to pull it up for me,

7 please. My memory fails me on this.

8 Q. Dealing with your recommendations -- again, they are

9 there for us to see and I do not intend to take you

10 through them by way of summary -- and I think we have

11 touched on this -- you recommended that audio and video

12 recording should take place. You will forgive me, but I

13 don't think you can take all the credit for that,

14 because I think that was something that was being

15 discussed?

16 A. I don't know. Very early on in taking up the inquiry,

17 knowing that he was also doing a rough review, it was

18 one of those things which just jumped off the page.

19 Q. Certainly.

20 A. And I immediately raised it with the Chief Constable,

21 who immediately implemented a change of policy.

22 Q. Yes. There was a suggestion as to a protocol between

23 the Commission and the relevant RUC investigating

24 officer, obviously to try and avoid these hiccups. You

25 recommended there should be a policy covering the

 

 

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1 attendance of RUC officers who were the subject of

2 complaints?

3 A. Yes.

4 Q. That immediately, also, after an interview, the

5 investigating officer and the Commission member should

6 discuss the interview?

7 A. Yes.

8 Q. There was an issue -- and I don't want to go into it --

9 about an officer allegedly arriving smelling of alcohol.

10 You again made a recommendation that these things should

11 be raised there and then?

12 A. No point raising it three months later.

13 Q. Absolutely, to get to the bottom of them if that was

14 necessary, six months down the line?

15 A. It is a now or never issue, I think.

16 Q. Yes. So again -- and I hope this doesn't seem

17 a pointless question, but you produced a review that in

18 your mind was meant to be constructive?

19 A. Constructive and helpful.

20 Q. Did you, as it were, put it in the post thinking, "I am

21 going to get a nasty phone call about this because I am

22 obviously going to ruffle feathers"?

23 A. No, I didn't. I thought it would be seen in the light

24 which initially it was.

25 Q. Yes. We will come to that in a moment. At the time of

 

 

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1 Rosemary Nelson's death, which you were made aware of,

2 what was your understanding as to the distribution,

3 publication, of your reports and review?

4 A. Well, the reports of course had gone to the RUC and the

5 DPP. The review was for the consumption of the

6 Chief Constable of the RUC, and what he chose to do with

7 it beyond that was entirely a matter for him.

8 Q. Yes. But towards the end of March, certainly after

9 Mrs Nelson's murder, you received a telephone call from

10 Mr Flanagan?

11 A. Yes.

12 Q. And it wasn't a casual catching-up type of phone call?

13 A. No, no.

14 Q. He was ringing you for a purpose and indeed requesting

15 your urgent attendance in Belfast?

16 A. Yes.

17 Q. Why was that?

18 A. Both he and the chairman of the ICPC wanted to get into

19 the public domain the thrust of my review, and obviously

20 they felt that they couldn't do that without my

21 contribution. So I came back from my break and went

22 across to Belfast within, I think, sort of 12 hours and

23 we spent the day agreeing the format which I then

24 produced the following day.

25 Q. Now, again, it may seem a silly question, but why did

 

 

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1 they want to release it into the open?

2 A. I can't recall the fine detail now, but obviously in the

3 aftermath of Mrs Nelson's murder I think there was some

4 public desire to see something as to whether or not

5 there was a way forward out of what had occurred, or

6 whatever. I don't know exactly why, but suffice it to

7 say they called on me to come to Belfast, which I did.

8 Q. But if you will forgive me for saying so, presumably you

9 took the view that wasn't really any of your concern as

10 to why they wanted to --

11 A. That's right. I was being asked to do something, so I

12 responded.

13 Q. You presumably also felt that it was right and proper

14 that you were given the opportunity to have input into

15 what actually was released?

16 A. Well, that is what they wanted actually, hence me

17 travelling across and spending the day with them.

18 Q. But what I mean is if they hadn't asked you, you might

19 have had your nose slightly put out of joint?

20 A. Well, I don't think I actually would. If the

21 Chief Constable had decided to put what I wrote into the

22 public domain, I wouldn't have been bothered one way or

23 the other, actually.

24 Q. But you cut short your weekend, in fact?

25 A. That goes with the territory.

 

 

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1 Q. There probably should have been a full stop between my

2 last question and this one, or a paragraph break. You

3 cut short your weekend, in any event?

4 A. Yes.

5 Q. And went over to Belfast?

6 A. Yes.

7 Q. And had a meeting with Mr Flanagan and Mr Donnelly?

8 A. Yes.

9 Q. And I think you recollect there may have been some

10 others present, but you can't remember who they were?

11 A. Yes, I think support staff for each of them.

12 Q. Yes. And you remember dictating a press release on the

13 way back to the England on the plane, in fact?

14 A. My memory of it is that the following morning I had

15 a commitment, a professional commitment, at Bramshill

16 and I spent the return journey from the -- my car

17 dictating it to my secretary, which was typed by my

18 arrival back. And I was able to refine it and then get

19 it into the public domain the same day. So it was very,

20 very quick.

21 Q. Could we call up RNI-228-085 -- before we look at that,

22 this was a very quickly organised meeting between

23 yourself and Mr Flanagan and Mr Donnelly?

24 A. Yes.

25 Q. There was hard intensive work done in anti-social hours

 

 

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1 to nail down a release, so there was a degree of

2 urgency?

3 A. Oh, yes, it was done on a Sunday.

4 Q. And we have got here the actual release. And again, I'm

5 not going to read it all to you, but if we could go

6 to -- I am sorry -- the next page, RNI-228-038.500

7 (displayed), the penultimate paragraph, we can see --

8 and I have chosen this for a reason:

9 "The ultimate review would be a reinvestigation.

10 However, it having been agreed that the ICPC were

11 registering concerns rather than complaints, it became

12 clear that an assessment of the process of how the

13 enquiries were conducted was more appropriate."

14 The reason I have chosen that is because it stuck in

15 my mind, this expression "the ultimate review". The

16 point I am seeking to make is there were large chunks --

17 and I am not saying this critically -- of your review

18 quoted in the press release?

19 A. Indeed.

20 Q. It wasn't all of it, but it wasn't -- I am sorry, I was

21 going to use the word "concoction". It wasn't a product

22 of clear thought and new words from yourself?

23 A. No, it was a synopsis of the whole, really.

24 Q. So that which went into the press release was decided in

25 conjunction with Messrs Flanagan and Donnelly so that

 

 

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1 when the press release was released, it was the product

2 of the three of you talking, analysing and, if you will

3 forgive me, cutting and pasting from your review?

4 A. Yes, it represented a common front.

5 Q. So nobody of the three of you could say, when they read

6 the article that you have referred to in your

7 statement -- and I'm not going to refer to that for

8 a moment -- but when they saw the press release, they

9 couldn't say, "Hold on a moment, that is not what we

10 agreed. This is nonsense"?

11 A. Yes, that's correct.

12 Q. Did you in fact have the press release, as it were,

13 typed up and then sent to Mr Donnelly and Mr Flanagan;

14 can you remember?

15 A. I can't clearly remember. I know what I was tasked to

16 do and I did it, and my recollection -- that press

17 release went out from Belfast, not from Scotland Yard.

18 So I sent it to Belfast. It would have gone to the RUC,

19 presumably endorsed by both main players, i.e. the RUC and

20 the ICPC, because it then went into the public domain.

21 And it has attached to it, if my memory serves me right,

22 a paragraph which indicates quite clearly that it is

23 a joint statement.

24 Q. Yes. And as far as you are concerned, when you had the

25 meeting with Messrs Flanagan and Donnelly, that was

 

 

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1 a meeting between three key players in this whole

2 process?

3 A. Yes.

4 Q. Whilst I appreciate you are drafting a press release,

5 did either of them make any aside or comment to you

6 about your review: its content, its quality, its tone?

7 A. Only to the effect that it was satisfactory. It had

8 covered what was intended. In fairness to the ICPC

9 member, the review was conducted on behalf of the

10 Chief Constable, but there were no negative comments

11 made whatever by the ICPC chairman.

12 Q. At the meeting with you --

13 A. At that meeting.

14 Q. You, he and Mr Flanagan?

15 A. That's right.

16 Q. Because of course, as you know and we are going to come

17 on to now, there was a leak to the press and the

18 concerns, comments that Mr Donnelly had about your

19 review, and in fact he put them into a critique,

20 a document, were leaked to the press?

21 A. Yes, I learned about that subsequently, yes.

22 Q. Was that your first indication that Mr Donnelly had

23 perhaps changed his view?

24 A. Yes.

25 Q. We can see this. It is at RNI-228-086.505 (displayed).

 

 

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1 I'm not going to read it, but that is an article that

2 says:

3 "The ICPC slams investigation into threats."

4 We can see on the side, written vertically,

5 "14th July"; yes?

6 A. Yes.

7 Q. So again -- to use a cliché -- out of the blue the view

8 of your review by Mr Donnelly had changed?

9 A. In the light, I would think, of Mrs Nelson's murder.

10 Q. That is, if you will forgive me --

11 A. Speculative, of course.

12 Q. And we can ask him, no doubt, about that. But if we

13 look at RNI-228-175 (displayed), we have got a letter

14 from Mr Donnelly to Sir Ronnie Flanagan dated

15 30th April. The press release was back in March, the

16 end of March, about a month later and could we highlight

17 the text, please:

18 "As you can see, I arrive at significantly different

19 conclusions from those of Commander Mulvihill. However,

20 I continue to view his recommendations as welcome in

21 forming the basis for the way forward in addressing the

22 issues raised by the case in question."

23 Dropping down a paragraph:

24 "I would be grateful if you would copy my commentary

25 to the parties who have had access to

 

 

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1 Commander Mulvihill's reports."

2 Yes?

3 A. Yes.

4 Q. Now, it appears from the documents and from what you are

5 saying, so we are clear, that at no time during this

6 weekend of forced activity between the three of you did

7 Mr Donnelly say either, "We have got to get this press

8 release out, but I am just putting you on notice, I have

9 got some reservation. I need to do some thinking about

10 it."?

11 A. Not a single word.

12 Q. Or, "I have got to tell you, I think the whole thing is

13 a joke and you have missed the point completely"?

14 A. Not a single word of criticism.

15 Q. Reading that second paragraph, you would presumably look

16 at that with a degree of astonishment in the light of

17 the meeting you had had with him and Mr Flanagan?

18 A. From an intellectual standpoint, he is welcome to

19 critique my report and that is to be welcomed, but in

20 the same vein, he goes on to say he welcomes my

21 recommendations and they form the basis of the way

22 forward.

23 So I put it all in that light of just accepting

24 people's views and moving forward.

25 Q. That is a positive approach, if I may say so, because I

 

 

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1 was going to ask you: did it upset you that the first

2 thing you heard was about a press article and then, upon

3 obviously further enquiry, you realise a full-bodied

4 critique documented had been written?

5 A. I didn't know for some fair while. It wasn't immediate

6 at the time. He didn't send me a copy of a critique;

7 that came to me later. But as I say, I was slightly

8 surprised, but it didn't cause me any offence.

9 Q. Could we call up RNI-228-222 (displayed), just to help

10 you, 7th May 1999. This is a letter from Mr Flanagan --

11 just highlight that -- where he attaches a commentary on

12 your review report, saying he would be interested in

13 your comments. But Mr Donnelly didn't say to you, "Here

14 is a draft"?

15 A. Oh, no.

16 Q. Or, "Here is the final verse"?

17 A. No, not at all.

18 Q. It was press release and then, as we can see, a copy

19 sent to you by Mr Flanagan?

20 A. Yes. I don't really recall getting this, but I am very

21 methodical and, may I ask, did I respond?

22 Q. I haven't been able to find a response.

23 A. Because it says "interested in your comments", and I

24 would have made comments, but I have no recollection of

25 ever getting this.

 

 

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1 Q. Perhaps to help you in answering this Inquiry, up until

2 you were provided with one by the Inquiry, had you seen

3 the full critique document?

4 A. No, I had no recollection of seeing that full critique.

5 Q. No. Could we call up on to the screen, please,

6 RNI-228-159 (displayed). There in bold letters we can

7 see what we are talking about.

8 A. Yes.

9 Q. And you have had the opportunity of seeing this. And in

10 your statement to the Inquiry -- and I am going to take

11 you through it -- in fairness to you, you address some

12 of the points.

13 Now, first and foremost, could we go to RNI-228-160

14 (displayed)? We can see in the penultimate paragraph,

15 please -- I am calling them "concerns" raised by

16 Mr Donnelly about the letter that we have already

17 referred to being used as your terms of reference; yes?

18 A. Yes.

19 Q. Could you just -- I know you have commented on it

20 before -- be absolutely clear for us, you always

21 understood that you could use that letter, should use

22 that letter and did use that letter?

23 A. Yes.

24 Q. And in fact, without it there would have had to have

25 been other discussions and drawing up of documents to

 

 

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1 guide you in your review?

2 A. I would have been deciding completely what the review

3 was about, if I did not have some reference to the

4 articulated concerns of the ICPC.

5 Q. Yes. Now, the next matter, turning the page, please, to

6 RNI-228-161 (displayed) -- highlight the paragraph

7 beneath "at the beginning" -- this concerns the refusal

8 of the RUC to accept as a complaint the correspondence

9 from the Lawyers Alliance for Justice; yes?

10 A. Yes.

11 Q. And again, I think -- I don't want to put words in your

12 mouth -- that you felt that this was really a matter of

13 form over substance?

14 A. Yes.

15 Q. What were your views on this?

16 A. Given that some were in correspondence, the ICPC make it

17 clear that they do not wish to see themselves as

18 complainants, and I used it as an opportunity, from the

19 letter that Paul Donnelly wrote, to be the basis of the

20 review. And I think this is one of those places where

21 there was an anxiety about classification of complaint

22 headings.

23 Q. We are going to come to that.

24 A. And that is how I took it forward.

25 Q. Could we just highlight the next paragraph -- oh, I am

 

 

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1 sorry, not quite the next, the paragraph "I disagree".

2 Mr Donnelly says:

3 "Had this case not been initially referred through

4 the offices of the ICPC, we would not have known of its

5 existence and would not have been in a position to

6 challenge the decision to refuse to accept it as

7 a complaint. Consequently, it would not have been

8 investigated. The fundamental point is that the RUC

9 were initially disinclined to accept a serious

10 allegation as constituting a legitimate complaint."

11 Yes?

12 A. Yes.

13 Q. But --

14 A. And I think the classic example of that is here we have

15 an institution writing a letter saying it is not

16 a complaint; it's a concern. So, for me --

17 Q. Which institution do you mean?

18 A. The ICPC.

19 Q. Yes.

20 A. Making it crystal clear they do not want it investigated

21 as a complaint, but then later on being argumentative

22 about whether or not things should have been done in one

23 way or another. And I'm not convinced that you can have

24 it both ways.

25 I understand the point that they are making, but the

 

 

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1 point is this was some years after the event. It was

2 recorded as a complaint. That was a fact of life.

3 Debate had taken place. What maybe hadn't been

4 considered to be a complaint had been accepted as

5 a complaint. And picking over the bones of that I

6 didn't see was going to take anything a lot further

7 forward?

8 THE CHAIRMAN: Speaking for myself, I think we have picked

9 over the bones of this controversy for far too long

10 already.

11 MR SAVILL: Well, moving on to some of the other criticisms

12 that were made of you, you were criticised for the view

13 you took of the incivility categorisation.

14 A. Yes.

15 Q. Again, you thought a matter of form over substance?

16 A. Yes.

17 Q. You were criticised about the undermining of the Inquiry

18 by the actions of the RUC officers?

19 A. Yes.

20 Q. And again, your view on that was that you noted it but

21 didn't think that in reality it made a very great deal

22 of significant difference?

23 A. Again, it was one of those things where there is

24 a system and if officers, for example, chose, in

25 accordance with the form that was served on them, to

 

 

110

 

1 provide a written testimony, I don't think they could be

2 criticised for doing it afterwards. Whether or not it

3 should be the system, I made a reference to in terms of

4 a review.

5 Q. You were also criticised about the informal resolution,

6 or attempted informal resolution, of one complaint and

7 the approach you took to that. You took the view that

8 that was nothing deliberate, there was nothing sinister

9 about it?

10 A. That's right.

11 Q. And again, I think the tenor of what you seem to be

12 saying to us in relation to many of these matters is

13 that what was done was done and it was better to move on

14 positively to the future?

15 A. Yes.

16 Q. The issue of pre-prepared statements seemed to be a very

17 contentious one?

18 A. It was one that was very disliked, and I understand why,

19 by the ICPC. But there in the papers it specifically

20 invited the officer if the officer wished to produce

21 one, and it had become custom and practice for an awful

22 lot of officers to do precisely that. And then,

23 unfortunately, the subsequent interview tended to

24 revolve around the officer saying, "It is in the

25 statement", which wasn't conducive to a really

 

 

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1 productive outcome.

2 Q. No. You were also criticised, I think, for taking

3 a view that -- or forming an opinion that P146's

4 interviews had been thorough?

5 A. In the context of the circumstances in which he was

6 operating. And that is my earlier point, about if you

7 say to somebody -- if your experience in interviewing

8 suspect officers is that they are constantly going to

9 say, "It is in the statement, it is in the statement",

10 unless you can step outside of that, which I like to

11 think my team did, where we would say, "I understand

12 what you have said in your statement, but I want to ask

13 you about so and so", we broadened it.

14 Q. Yes. There was also an issue, I think, that you took

15 a view on, a realistic view, you would say, I think,

16 about failure of police officers to attend for

17 interviews?

18 A. Yes.

19 Q. Again, you took an approach which was "life is like

20 that"?

21 A. Yes. I mean, I am a believer that wishful thinking

22 doesn't make things happen and sometimes police

23 officers, and other witnesses for that matter, will fail

24 to attend pre-arranged interviews. That is to be

25 avoided at all costs, if possible. But it will happen,

 

 

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1 and if you can reduce the number of chances, then you

2 will make progress.

3 Q. And I think, speaking generally, you formed opinions of

4 people which were related in your review, and you were

5 subsequently criticised either for forming the opinion

6 that you did or for forming it without proper full

7 investigation or full interview or spending enough time

8 with the people that you were commenting on?

9 A. Yes.

10 Q. What do you say in relation to that?

11 A. I stand by my judgment. I found all of the people that

12 I spoke to actually reasonable. But then, of course,

13 they were just sitting with me and they were not

14 necessarily the cocktail which might have existed in the

15 past with two different people sat together.

16 I interviewed a number of individuals and took from them

17 what they had to contribute, and I commented on them as

18 people honestly. And if somebody thinks that by me

19 making a comment that I found somebody dedicated or

20 something like that wrong, well, I stand by my

21 assessment of the people that I commented on.

22 Q. I just wanted to ask you this by way of conclusion on

23 this topic and, hopefully, your evidence in the short

24 term: we have to bear in mind, do we not, what you were

25 writing? It was not anything other than a review?

 

 

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1 A. That's right.

2 Q. And so you would say, would you, that it wasn't meant to

3 be definitive? I am not going to call it a document for

4 discussion, but it was meant to prompt debate?

5 A. It was meant to move things forward and, yes, indeed, to

6 prompt debate. But I think it would be fair -- you are

7 right, it wasn't a definitive article but it was

8 accurate, and it reflected my findings.

9 Q. Yes. You said in your statement to the Inquiry at

10 RNI-813-071 (displayed), top paragraph highlighted,

11 please:

12 "Paul Donnelly's preference would have been for me

13 to have expanded the Terms of Reference to provide both

14 wider and more expansive comments. I don't believe

15 that, in promoting the review and the recommendations,

16 this would have worked."

17 A. Well, I just don't know where it would have stopped. I

18 had a number of areas where I could usefully probe and

19 comment on, but it could have been never-ending if I had

20 sought to expand ad nauseam. If it had been the sort of

21 thing that I wanted to spend months and months and

22 months doing, then it would have really amounted to a

23 reinvestigation.

24 Q. In the next paragraph, you say:

25 "As far as I was concerned, it was up to the RUC and

 

 

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1 the ICPC to deal with any issues that arose from the

2 reports and the review. It was up to the RUC to request

3 me to do more work if they wanted me to. That would, of

4 course, have been subject to the Met agreeing to that

5 suggestion. I was never contacted about any such

6 further work. My role was complete following agreement

7 of the joint statement."

8 That goes back to what you were saying?

9 A. That's right. I was always available. I didn't retire

10 for several years afterwards. I could have gone back

11 and done more work, but I was never asked to and nobody

12 else was, to my knowledge.

13 Q. You were not of the view that you were lobbing a hand

14 grenade without the pin in it into the midst of the RUC

15 and the ICPC and running off?

16 A. On the contrary.

17 Q. You were putting forward what you thought --

18 THE CHAIRMAN: We will have a ten-minute break until ten to

19 two.

20 (1.25 pm)

21 (Short break)

22 (1.50 pm)

23 MR SAVILL: I was just asking you about your intention in

24 producing the review, and putting it bluntly, you

25 weren't seeking to put the cat amongst the pigeons, as

 

 

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1 it were, by producing it, were you?

2 A. No, I was trying to create an opportunity for people to

3 move forward and become slicker in the way they

4 delivered their business.

5 Q. Now, to conclude, it is right to say that there have

6 been, perhaps from mainly one quarter, varying degrees

7 of criticism of your review?

8 A. Yes.

9 Q. Ranging perhaps from it was a good effort but didn't do

10 the job, right up to quite serious suggestions that it

11 lacked credibility, it was flawed and that really it was

12 a very unfair and unhelpful document.

13 So just to give you your turn, please, now, to

14 say -- you have alluded to it -- what is your view now

15 of your review?

16 A. I did my best. I submitted to the review a report,

17 which initially was at least superficially accepted. It

18 was -- I received a letter from the Chief Constable

19 thanking me for my recommendations.

20 You have seen documentation before you today where,

21 even with criticism, the ICPC chairman suggests that it

22 is the way forward and my suggestions are welcomed.

23 Others who never contacted me but have commented

24 adversely on my report, that is their view. I recognise

25 their right to comment, but I did my best and I stand by

 

 

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1 my review.

2 Q. Would you accept that you glossed over anything or it

3 was flawed in any way?

4 A. I accept that it was not perfect, but in the context of

5 what I was seeking to achieve, I think it was pretty

6 good.

7 Q. We discussed that before --

8 A. Yes, indeed.

9 Q. -- the break. And finally, Mr Mulvihill, a question for

10 you that is put to all witnesses who come before this

11 Inquiry at the conclusion of their evidence. You gave

12 a statement, a lengthy statement, to the Inquiry and you

13 have given your evidence to us today. Is there anything

14 that you would like to add that you and I haven't

15 discussed or raised in the course of your evidence

16 today?

17 A. No, thank you.

18 THE CHAIRMAN: Mr Mulvihill, we are very grateful for you

19 coming over and giving evidence before us. Thank you

20 very much. You may leave now.

21 A. Thank you.

22 THE CHAIRMAN: We will adjourn now until September.

23 (1.54 pm)

24 (The Inquiry adjourned until 1.00pm am on Monday,

25 1st September 2008)

 

 


 

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