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Full Hearings

Hearing: 23rd May 2008, day 26

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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 Friday, 23rd May 2008
commencing at 9.45 am


Day 26

 

 

 

 

 

 

 


 

1 Friday, 23rd May 2008

2 (9.45 am)

3 R U L I N G

4 THE CHAIRMAN: Yesterday afternoon, Mr Donaldson, leading

5 counsel for the PSNI, handed to us a printed list of

6 19 questions, which he submitted should be asked of

7 Mr Foley, who is currently giving evidence.

8 Before giving our decision on Mr Donaldson's

9 submission, I am going to re-emphasise the principles

10 and practice by which this Inquiry has operated and will

11 continue to operate.

12 It is an inquiry strictly limited by our Terms of

13 Reference. It is an inquiry circumscribed by our

14 published list of issues. It is an inquiry by

15 inquisition, with counsel for this Inquiry asking

16 relevant questions of the witnesses called to help us in

17 our search for the truth.

18 Full Participants are here to help us in our search

19 by supplying to counsel for the Inquiry suggested

20 relevant questions or lines of questioning for our

21 counsel to ask.

22 If those suggested questions are relevant and will

23 help us in our inquiry, they will be asked by our

24 counsel. If suggested questions are irrelevant or

25 unnecessary or sufficiently covered by the written or

 

 

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1 oral evidence of the witness, they will not be asked.

2 To ensure that the oral evidence at this inquiry is

3 produced effectively, we shall not depart from our

4 stated principles.

5 The validity or otherwise of the judgments of

6 Mr Justice Kerr, as he then was, and of the Court of

7 Appeal in the case against Mr Colin Duffy in relation to

8 the murder of John Lyness and the pros and cons of the

9 Diplock trial system are irrelevant on our inquiry. The

10 opinions of individual witnesses on such matters are of

11 no interest to us.

12 Witnesses may express opinions about a variety of

13 matters with which Full Participants and others may

14 strongly disagree. This Inquiry will not be allowed to

15 become a forum for the debate of opinions. We shall not

16 be diverted from concentrating on our List of Issues.

17 With respect to the 19 questions submitted to us by

18 Mr Donaldson, our leading counsel, Mr Phillips, will put

19 questions 15 and 19 to Mr Foley and some additional

20 questions arising out of the documents disclosed by

21 Mr Foley to the Inquiry late yesterday afternoon.

22 With regard to the first six questions, and

23 question 16, in our judgment the subject matter of those

24 questions is either irrelevant to our inquiry or has

25 been sufficiently covered by Mr Foley's written or oral

 

 

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1 evidence.

2 With regard to the remaining questions, we

3 understand that Mr Donaldson and Mr Phillips are agreed

4 that they have been covered by Mr Foley's evidence.

5 Mr Foley, would you be good enough to return to the

6 witness desk, and Mr Phillips, please, will you ask

7 Mr Foley the questions.

8 MR JOHN FOLEY (continued)

9 Questions by MR PHILLIPS (continued)

10 THE CHAIRMAN: Mr Foley, you are still on oath.

11 MR PHILLIPS: Mr Foley, do you have first of all the new

12 documents?

13 A. I do.

14 Q. I hope you have them numbered at the top right-hand

15 corner, as I do, starting at RNI-404-001.

16 A. I certainly have the copy. I am not sure if I have the

17 numbered copy in front of me. I apologise. (Handed)

18 Q. The first one I would like to ask you about is the

19 second document, and this, I understand, at RNI-404-003

20 (displayed), is a letter to you from Mr Duffy sent from

21 prison. Is that right?

22 A. It appears to be, yes.

23 Q. Can you put a date on the letter?

24 A. Well, it would have been between -- it would have been

25 prior to the appeal hearing, based on the content of it,

 

 

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1 and the appeal hearing was 16th September, I believe.

2 Q. Of which year?

3 A. 1996.

4 Q. Thank you. Can I ask you, please, in the third

5 paragraph about the benefit night in Philadelphia. Did

6 you organise that?

7 A. No, I knew nothing of it. I am sure at the time

8 I probably knew about it but until I re-read this letter

9 the other morning, I had no knowledge of it.

10 Q. You didn't know anything about that?

11 A. No.

12 Q. Now, so far as the notes, which are the first two pages

13 of this clip of material, are concerned, RNI-404-001

14 (displayed) and RNI-404-002 (displayed), were these

15 notes made by you at the prison visit that you described

16 to us yesterday?

17 A. Yes. As I explained to staff, there are two different

18 times. The first one was -- they took me to a room and

19 I waited and I scribbled the first page. And then they

20 took everything away from me, pens, pencil, pad of

21 paper, everything I had, and I waited for a while and

22 then Mr Duffy was brought in.

23 The second page were the notes that I scribbled on

24 the side of road and they are extremely weak and limited

25 and, frankly, I am a bit embarrassed at how limited they

 

 

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1 are, but these were the notes that I scribbled on the

2 side of the road.

3 Q. Thank you. Can I ask you, first, on page RNI-404-001

4 (displayed) in the third section, which begins in

5 handwriting with the words "two speakers ..." there is

6 a phrase in quotation marks. Do you see that:

7 "We have no expectation of privacy here, someone is

8 probably listening"?

9 A. Yes.

10 Q. Can you explain that phrase in quotation marks to us,

11 please?

12 A. I think that was something that was scratched inside the

13 van that I was taken around in.

14 The van trip was extensive. It went on for, if my

15 memory is right, about 20 minutes. I was in the van,

16 I sat there, it drove for a while, it stopped and I was

17 told to stay there. Then it took me on a rather crazy

18 stop-and-go ride, and I think that was something that

19 was scratched inside or something that was, you know, a

20 form of writing inside.

21 Q. Then on the second page, please, there appears to be the

22 word "liar" written twice, again in quotation marks.

23 Can you explain that to us, please?

24 A. When they yelled "get out", I got out and the gentleman

25 was standing there. I think he was yelling "lawyer",

 

 

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1 but at the time I thought he was yelling "liar" and

2 I kept saying, "no, no, no". The accent was very thick

3 and ...

4 Q. Then at the bottom of the page, the bottom right, the

5 word appears to be "scared". Is that "scared"?

6 A. That's "scared".

7 Q. Again, how did that get to be written there, please?

8 A. When he pointed the gun at me, I was scared.

9 Q. And the quotation marks?

10 A. Mine. Just -- that's the way I wrote. It is not

11 a reference to anybody saying "scared". It's

12 a reference to me. I was very scared at that moment.

13 Q. Turning over, please, to RNI-404-009 (displayed), is

14 this the text of an article --

15 A. Yes.

16 Q. -- written by you?

17 A. Yes.

18 Q. Was it published?

19 A. I don't know for certain but it probably was.

20 Q. Where?

21 A. It could have been in any number of US journals.

22 I represent a number of Irish American newspapers and

23 provide them just different information, explanation and

24 general advice as to issues related to the North.

25 Q. When was it written?

 

 

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1 A. It would have been written following the meeting with

2 Mr Flanagan.

3 Q. Which year?

4 A. The Lawyers Alliance meeting in -- was it 1998? The

5 first Lawyers Alliance trip.

6 Q. So this is the meeting that you attended which you

7 described to us yesterday. Is that correct?

8 A. That's correct.

9 Q. So the "me" in the article is you?

10 A. Yes.

11 Q. Thank you.

12 A. Can I point out one thing in this?

13 Q. Please do.

14 A. I don't, in the article, indicate that Mr Lynch was not

15 at the meeting. He was not at that meeting with the

16 Chief Constable, but I would have received his comments

17 separately. So it probably should be pointed out in

18 there that Lynch was not at the same meeting, but it is

19 not pointed out in there.

20 Q. Thank you. So far as the meeting is concerned, would

21 you accept that it doesn't set out an account of what

22 was said at the meeting which conforms with what you

23 told us yesterday?

24 A. Not completely, correct.

25 Q. For instance, there is no reference to the question of

 

 

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1 Rosemary Nelson's security being raised?

2 A. Not at all.

3 Q. So what was the purpose of article, please?

4 A. It was more of a filler. I wouldn't say there was any

5 purpose. More just to say that there was ongoing

6 discussion between Lawyers Alliance and the

7 Chief Constable as to policing issues in the North and

8 specifically having to do with the Orange Order and the

9 number of members of the RUC who were members of the

10 Orange Order.

11 Q. Can I assume that it was written on your return to the

12 United States of America?

13 A. Yes.

14 Q. And did you discuss your visit and the meeting with

15 Mr Lynch before writing the article?

16 A. No, no.

17 Q. So where did the quotations from Mr Lynch come?

18 A. I am sorry. I certainly got quotes from Mr Lynch at

19 different times. They may have been in a previous

20 article that I simply reused.

21 Q. One of the quotations provides as follows:

22 "The RUC is one step above the Gestapo. A good

23 number of its members are also members of the Protestant

24 Orange Order."

25 Were those the genuine views of Mr Lynch, so far as

 

 

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1 you are aware?

2 A. I think those are accurate quotations.

3 Q. Did you share them?

4 A. Did I share them that --

5 Q. Did you share those views?

6 A. Not to that extreme, no.

7 Q. What were your views about the RUC?

8 A. I believe that there were members of the RUC who were

9 members of the Orange Order, and that while they have

10 a right to be a member of any group or organisation, the

11 police service has a right to know what groups or

12 associations each of its members participates in and

13 they should be disclosed to the management or the

14 personnel in the police service.

15 Q. But did you also agree with his suggestion that the RUC

16 policing Northern Ireland was like the Ku Klux Klan

17 policing the southern states of the United States of

18 America?

19 A. I don't think I would go to that extreme. I think there

20 were probably an awful lot of very good police officers

21 in the RUC and that they all get painted with the same

22 broad bush. But I also think that they have bad apples

23 and there had to be a way to address those bad apples,

24 and I wasn't convinced that they had a formula that

25 achieved that goal.

 

 

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1 Q. But so far as you were concerned, again, this quotation

2 in relation to the Ku Klux Klan, that was a view

3 genuinely held by Mr Lynch, was it?

4 A. I quoted him and if I put it in quotes, he said it to

5 me. So I think that would be his view.

6 Q. Thank you. Finally, the article which follows is at

7 RNI-404-010 (displayed). This is an article written by

8 another journalist, as I understand it, but in which you

9 are featured and in which you are quoted. Is that

10 right?

11 A. That is correct.

12 Q. Can you remember which publication this comes from?

13 A. I believe it was the Lurgan Mail.

14 Q. So this is a newspaper in Northern Ireland?

15 A. It is.

16 Q. Thank you. Now, is it right that there are some

17 inaccuracies in the article, so far as you are

18 concerned?

19 A. Yes.

20 Q. Can you point them out to us, please?

21 A. In the second column, there is a reference to

22 a Senator George Dukakis. There is no

23 Senator George Dukakis. It is Governor Michael Dukakis.

24 I worked for him in the Commonwealth of Massachusetts as

25 an investigator in the Department of Environmental

 

 

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1 Sciences.

2 Other than that, I mean, he made references to the

3 connections to both the Kennedy family and

4 Massachusetts. I mean, I am a resident of

5 Massachusetts. Senator Kennedy is my senator, and at

6 the time Congressman Kennedy was my congressman. I am

7 from, originally, the state of Maine, which is where

8 Senator Mitchell is from, but that is pretty much the

9 extent of my relationship.

10 Q. Are there any other inaccuracies in the article?

11 A. Not that I am aware of.

12 Q. Do you see in the third column there is a quotation from

13 you which begins with the words "the system ..."?

14 A. Yes.

15 Q. I take it that this is a reference to the court system

16 in Northern Ireland?

17 A. It is.

18 Q. Can you assist, please, with the date of this piece?

19 A. Based on the last couple of paragraphs, where they are

20 talking about other events that are unrelated to me, it

21 looks as if it would be March of 1996.

22 Q. And so, shortly after your arrival to work on this case,

23 you spoke to this journalist, did you, and gave these

24 views, did you, about the legal system in

25 Northern Ireland?

 

 

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1 A. Yes.

2 Q. And those were views, can I ask you, that you genuinely

3 held, were they, at the time?

4 A. Yes.

5 Q. Although in fact your experience of the system was

6 presumably very limited indeed?

7 A. I was an editor of a newspaper for lawyers. It was the

8 largest circulation newspaper for lawyers in the UK. So

9 I was dealing with issues related to the UK legal system

10 five days a week. So it was limited. I was not

11 a member of the Bar, I was -- I did not have rights of

12 representation but I was involved with it for

13 a significant period.

14 Q. But it was your view then, was it, that that system, as

15 I understand it, was blatantly wrong and about as

16 one-sided as you had ever seen?

17 A. That is what I said in connection to the Duffy case,

18 yes.

19 Q. I see. Now, you also are cited at the bottom of the

20 same column as writing to the Lord Chief Justice. Was

21 this the Lord Chief Justice in Northern Ireland?

22 A. I am unsure -- it may have been. Frankly, without

23 looking at my letter, I don't know which Lord Chief

24 Justice. I know I wrote several times to Lord Chief

25 Justice McKay. I am not quite sure of the

 

 

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1 pronunciation.

2 Q. He was then the Lord Chancellor?

3 A. I thought his title was Lord Chief Justice but I may be

4 wrong.

5 Q. In your statement in paragraph 92 you tell us -- and

6 this is RNI-806-068 (displayed) -- that you were

7 encouraged by Mrs Nelson to write letters to a number of

8 senior judges. Do you see that?

9 A. Yes. Yes.

10 Q. And you give us details from 1992 to 1994?

11 A. Yes, and I believe I have offered copies of my letters

12 to Mr Hutton.

13 Q. I'm sorry, you believe you have ...?

14 A. Offered copies of the letters that were addressed to

15 Mr Hutton from me.

16 Q. You have copies with you?

17 A. I believe I presented them to your staff in New York.

18 Q. Right.

19 A. I am sure I have them with me. I apologise if -- for

20 showing up with the documents late.

21 Q. I haven't seen them. Thank you. What was the subject

22 matter of these letters?

23 A. Most assuredly it was the Duffy appeal matter.

24 Q. Did you write in relation to other cases?

25 A. Over time I am sure I did, but I don't know specific

 

 

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1 dates or specific letters. I most likely did.

2 Q. Sorry?

3 A. I most likely did write him and others about different

4 cases.

5 Q. Again, at the behest of Rosemary Nelson?

6 A. Not in all cases. Some of them were just issues that I

7 was interested in and I expressed my opinion.

8 Q. And what sort of points would you be raising with the

9 judges?

10 A. Simply that I would hope that the appeal would be an

11 open, public hearing, that they would inform lawyers and

12 international observers well enough in advance so that

13 they could travel to be there to be observers, that type

14 of thing.

15 Q. Were you hoping that these senior judges would influence

16 the conduct of the appeal, for example?

17 A. I was hoping that it would be an open and fair appeal.

18 So in that regard I think the answer to your question

19 would be yes.

20 Q. And you say in paragraph 94 that Mrs Nelson thought this

21 was all a very effective way of proceeding?

22 A. Yes.

23 Q. In other words, this strategy that you pursued came with

24 her encouragement and approval. Is that right?

25 A. That's correct.

 

 

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1 Q. Yes. And you were asked specifically to do things of

2 this kind, as I understand it, on behalf of Mr Duffy?

3 A. Yes.

4 Q. To write specific letters?

5 A. Yes.

6 Q. Raising specific points with senior figures in the

7 judicial system?

8 A. Yes.

9 Q. Is that right?

10 A. That's correct.

11 Q. Can you remember any of the points you raised?

12 A. Simply that there be time in advance for the hearing --

13 notice, basically, and that it be an even-handed and

14 open hearing.

15 Q. Now, I would like to ask you, please, about paragraph 12

16 of your statement at RNI-806-074 (displayed). You say

17 there:

18 "I believe THAT we should call her murder what it

19 was: murder with the tacit approval of the police, the

20 military and possibly even the government in

21 Northern Ireland."

22 So that we are clear about this, can I ask you,

23 please, to tell us the basis upon which you put forward

24 that theory about the murder?

25 A. It is the belief that I acquired over time. I believe

 

 

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1 that the threats that we have talked about were real.

2 I believe that the threats -- I have a hard time drawing

3 a line between the police and the military in my mind.

4 That was in place at the time that this took place. And

5 as a result of that, the police and the military are led

6 by government officials. So I simply in my mind climbed

7 the ladder to come to that conclusion.

8 Q. And that was the limit of it?

9 A. Yes.

10 Q. Thank you. Can I just ask you finally about the letters

11 you have mentioned. Are you confident that you gave

12 copies of those letters to the Inquiry's solicitors?

13 A. I made them available -- they didn't take copies of

14 everything that I had, no.

15 Q. I see.

16 A. I think they only took copies of things they thought

17 were relevant at the time.

18 Q. But you still have them somewhere?

19 A. I have a thick file that is not that well organised but

20 certainly open to your eyes.

21 Q. That may be something we have to do after this witness

22 has left us.

23 A. Can I apologise to the Inquiry and to the solicitors and

24 barristers for not having a more detailed and complete

25 package.

 

 

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1 Q. Sir, those are the questions.

2 MR DONALDSON: Sir, may I make this point. I apologise for

3 not being in when the Inquiry sat. In fact, we had just

4 received the material about 15 or 20 minutes beforehand

5 and we were reading that and hoping to prepare some

6 questions arising from it.

7 We haven't had the opportunity to do that yet and we

8 would like to have a chance. Perhaps I can either deal

9 with it by submitting questions or perhaps speaking to

10 Mr Phillips, who has asked some helpful questions about

11 it.

12 There is this matter then of these further letters

13 and we obviously would like to have an opportunity to

14 see those letters, if we may.

15 May I make another point too, sir. We regret that

16 we were not given the opportunity to make any

17 submissions on the questions which the Tribunal has

18 declined to allow --

19 THE CHAIRMAN: Mr Donaldson, the Panel has given its

20 judgment and our counsel, Mr Phillips, has certainly

21 gone beyond, in your favour, the terms of our judgment

22 and I would have thought you had no complaint that was

23 a valid one about what Mr Phillips asked by way of

24 question of Mr Foley this morning.

25 MR DONALDSON: I am not dealing with the matters this

 

 

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1 morning, sir. It is in relation to other matters

2 which -- I have yet to study the content of what you

3 gave in your ruling this morning carefully.

4 But I just make this point in passing, that it would

5 be helpful if, in a dispute of this kind, we had the

6 opportunity to make submissions before a ruling is

7 actually made.

8 Now, that may be the -- the Tribunal may take the

9 view that they don't intend to do that. If that is so,

10 then we will have to bear with that in the meantime.

11 THE CHAIRMAN: Mr Donaldson, you will have to bear with it.

12 MR DONALDSON: It seems so, sir.

13 THE CHAIRMAN: Mr Foley, will you make available immediately

14 any documents that you have to the solicitor to the

15 Inquiry?

16 A. Yes, I will.

17 THE CHAIRMAN: We are grateful for you agreeing to stay over

18 for an extra day for further questioning, thank you.

19 We will adjourn for five minutes.

20 (10.10 am)

21 (Short break)

22 (10.17 am)

23 MR PHILLIPS: Sir, before Mr McKee starts his evidence, can

24 I just say that we have put in another of our lists of

25 witnesses, this time for Republic of Ireland

 

 

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1 witnesses. It sets out their names and where their

2 statements are to be found in the bundle, and you will

3 see that of a total of nine, you have decided that three

4 should be called to give evidence before you.

5 THE CHAIRMAN: Thank you.

6 MR EAMONN MCKEE (sworn)

7 Questions by MR PHILLIPS

8 MR PHILLIPS: Mr McKee, can you give us your full name,

9 please.

10 A. Eamonn McKee.

11 Q. Do you have the statement you made to the Inquiry in

12 front of you?

13 A. Yes, I do.

14 Q. Can we have it on the screen, please, at RNI-813-532

15 (displayed)? Can we turn over, please, to RNI-813-560

16 (displayed)? Do we see your signature there and the

17 date of 10th July 2007?

18 A. Yes.

19 Q. Now, you are a civil servant based in the Irish

20 Republic?

21 A. Yes.

22 Q. And you set out for us your career history up

23 until July 1999 in paragraph 1 of your statement. Do

24 you see that?

25 A. Yes, do you.

 

 

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1 Q. What I would like you to do for us, please, first of all

2 is to explain about the Anglo-Irish Division of the

3 Department of Foreign Affairs, and I hope that you will

4 be helped in that by looking at a chart, which I hope

5 will come on the screen and which the Full Participants

6 have in hard copy (displayed).

7 Can you just take us through the structure, please?

8 A. Yes, this is the Anglo-Irish Division and it is broken

9 into a number of sections: head of division, assistant

10 secretary grade. Each of these sections will be headed

11 by a councillor and that councillor would have a number

12 of first secretaries.

13 I worked in the justice and security section as

14 a first secretary working on justice and security issues

15 and acting as a traveller.

16 Q. And that is the capacity in which your evidence is of

17 particular interest in the Inquiry, of course, because

18 it is in that capacity, I think, that you met, talked

19 to, Rosemary Nelson?

20 A. That's correct.

21 Q. Thank you. Now, so that we are clear about this,

22 because you are the first witness to come and give

23 evidence from the Republic of Ireland, the various

24 departments or divisions or sections that you see here

25 on the diagram, were they all based in Dublin?

 

 

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1 A. Apart from the section on the British Irish Secretariat.

2 We would have a unit back in Dublin, but we also had

3 civil servants that worked in Belfast as part of the

4 joint secretariat.

5 Q. I would like to come to that in a moment. What is clear

6 then is this, is it, that in that section, the British

7 Irish Secretariat, there are civil servants working at

8 the Secretariat in Belfast, but there is, as it were,

9 a corresponding group of civil servants based in Dublin?

10 A. Yes.

11 Q. Thank you. Now, so far as the Secretariat is concerned,

12 can you assist us with that and when it was established?

13 A. Well, the Secretariat arose from the 1985 Agreement, the

14 Anglo-Irish Agreement, which set out an agenda of issues

15 that needed to be addressed in terms of creating

16 stability in Northern Ireland. And as part of the 1985

17 Agreement, it was -- the Secretariat was established to

18 service what would be regular meetings of the

19 intergovernmental conference in which both governments

20 would consult on issues that were defined in that

21 Agreement.

22 The Secretariat, therefore, was established as an

23 interface between civil servants, north and south, to

24 service that conference.

25 Q. Can you look, please, at a paragraph in your statement.

 

 

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1 It is paragraph 35 at RNI-813-542 (displayed).

2 The first thing I wanted to ask you about is the

3 conference. Can you explain the conference to us,

4 please?

5 A. Well, the conference was a regular meeting of the

6 Secretary of State for Northern Ireland and the Irish

7 Minister for Foreign Affairs. That conference would

8 have an agenda prepared by the Secretariat, that agenda

9 would then be discussed at the conference and action

10 would be taken subsequent to those discussions.

11 In its early days, it would meet regularly, probably

12 once every month or six weeks.

13 Q. And the time we are considering, in other words in the

14 mid to late 90s?

15 A. It met much more infrequently.

16 Q. Once a year, once on month?

17 A. I would think probably twice a year but that is a very

18 rough guess.

19 Q. Thank you. So the regular, as it were, day in, day out

20 work was done in the Secretariat?

21 A. That's right.

22 Q. And we will come to look at some documents in a moment,

23 but my understanding is that the two sides communicated

24 with each other formally, as it were, by written minute?

25 A. That's right.

 

 

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1 Q. Notes to the Irish side, notes to the British side. Is

2 that right?

3 A. Hm-mm.

4 Q. Presumably, in addition there were discussions on a less

5 formal basis?

6 A. Well, I never worked in the Secretariat so I would be

7 there -- I would be invited up for various meetings in

8 the Secretariat, but my understanding was that that was

9 indeed the case, particularly when they were located in

10 Maryfield, because the offices were intermingled. So I

11 think there was a good degree of socialising.

12 Q. So that the civil servants were working alongside each

13 other?

14 A. Yes, and there was the daily exchanges, I think, of

15 views. That would be informal as well as formal.

16 Q. Mr McKee, I'm going to intervene here with the interests

17 of the shorthand writer in mind. I suspect that you may

18 be speaking just a little too fast for her to keep up.

19 A. I tend to speak fast. I'm sorry.

20 Q. Not at all. But if you could try to bear that in mind,

21 I think it would be very helpful.

22 A. Okay.

23 Q. So far, then, as the Irish side of the Secretariat is

24 concerned, how was that structured? How many

25 individuals were working there during this period, the

 

 

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1 mid 90s?

2 A. It is very difficult to say. We had a joint secretary.

3 I think -- it is very difficult. I would think about

4 half a dozen.

5 Q. So the senior official, the joint secretary, there was

6 presumably an Irish one and a British one?

7 A. That's right.

8 Q. And then below him, various grades of civil servant?

9 A. That's correct.

10 Q. Thank you. Now, can I then turn to look at your own

11 role? You were based in the justice and security

12 section?

13 A. That's correct.

14 Q. Based in Dublin. Your communication in terms of the

15 Secretariat then was with the Irish side of the set-up.

16 Is that right?

17 A. Hm-mm.

18 Q. So if you wanted to feed something into the

19 secretariat's process, the route, as I understand it,

20 would be for you to minute one of your colleagues on the

21 Irish side who would then take it over in a minute to

22 the British side?

23 A. That's correct.

24 Q. And presumably the process was repeated in reverse and

25 you would get an answer at the end of that?

 

 

25

 

1 A. Yes. As I understand it, when we made a representation

2 to the British side, it was logged for further reference

3 and would be followed up accordingly.

4 Q. Now, you give in your statement the description of your

5 role as being that of traveller?

6 A. Hm-mm.

7 Q. Can you help us? What was involved?

8 A. Well, when the original instability arose in

9 Northern Ireland, officials from the Department of

10 Foreign Affairs who would have known individuals in

11 Northern Ireland would travel to the North and to get

12 feedback from them on the prevailing situation. So it

13 began as an ad hoc process.

14 With the 1985 Agreement, as I understand it, it was

15 decided to formalise this with a series of travellers

16 who would be given specific jobs to do. And the

17 thinking behind this was that if we were to have regular

18 meetings of the intergovernmental conferences, we would

19 need to be informed about the issues which were

20 specified in the Agreement itself.

21 And so these travellers would talk to a range of

22 contacts on different areas -- security, discrimination,

23 rights, rule of law and those kind of things -- and this

24 would allow our side of the conference to be informed

25 about the issues that were to be discussed.

 

 

26

 

1 Q. So the travelling that was involved took you to and from

2 Northern Ireland?

3 A. That's correct.

4 Q. How often would you cross the border?

5 A. I think about once a week.

6 Q. And as you describe in your statement, you would there

7 talk to your contacts and have meetings about issues

8 which were relevant to, as you say, the process of

9 discussion between the two governments?

10 A. That's correct.

11 Q. Thank you. Can I ask you then about Rosemary Nelson?

12 A. Hm-mm.

13 Q. You talk about her in your statement beginning in

14 paragraph 3, and you say, frankly, that you can't now

15 remember when you first met her?

16 A. Hm-mm.

17 Q. But that you think it was in relation to the Colin Duffy

18 matter?

19 A. Yes.

20 Q. Can you assist with this. Do you think that the contact

21 with you came from her?

22 A. I can't honestly say. I would imagine -- I would

23 imagine it was a phone call, but I can't honestly say

24 who initiated it.

25 Q. No. In general terms, from that first contact that you

 

 

27

 

1 had with her, how often would you be in touch with her?

2 A. It was fairly irregular, in the sense that it would be

3 as issues arose. It wouldn't be that regular.

4 It became more regular with the increasing tensions

5 around the Garvaghy Road, but it was -- my contact with

6 her, I think, was purely on the Colin Duffy case in the

7 first instance. I don't really remember her raising any

8 other cases with me particularly.

9 Q. In paragraph 6, you explain that the contact with her

10 fell into two broad categories. The first related to

11 her cases and the second:

12 "... general conversation and general talk about

13 Northern Ireland and the situation there."

14 That is the last sentence. Do you see?

15 A. That is correct.

16 Q. Of paragraph 6?

17 A. Hm-mm.

18 Q. Can we look at the first of the documents, please. It

19 is at RNI-111-000.500 (displayed). I am afraid our

20 numbering is exceptionally cumbersome.

21 A. Okay.

22 Q. This is a note made by you, isn't it, on

23 19th September 1996?

24 A. Hm-mm.

25 Q. And it is certainly the earliest note of which we have

 

 

28

 

1 a copy in our files, dated at a time, it would appear,

2 that the Colin Duffy appeal was coming to an end but had

3 not in fact concluded?

4 A. Yes.

5 Q. Can I ask you to look, please, at the third paragraph:

6 "She was warm in her commendation of former

7 Taioseach, Albert Reynolds, who attended the appeal and

8 for the interest which the department had taken in the

9 case over the years."

10 In your statement, you explain that you began your

11 work as traveller in April 1996, not long before this?

12 A. Hm-mm.

13 Q. So were you aware then that the Department of Foreign

14 Affairs had had an interest in this particular case for

15 some years before?

16 A. I might have been aware of it from just reading the

17 brief when I took on the job. I think that was about

18 the size of it. I can't honestly recall the details.

19 Q. Do you think it was possible that this was, if not the

20 earliest, one of the earliest contacts that you had with

21 Rosemary Nelson?

22 A. I would think so. Yes, I can only imagine so. I had

23 been in the job from April, so between the April

24 and September period, yes -- I think it was probably in

25 the latter half of it -- would probably be the earliest

 

 

29

 

1 point I would have had contact with her.

2 Q. Can we go back to the full document, please. In the

3 bottom right-hand corner there are various annotations.

4 This presumably shows where the document went in copy?

5 A. Hm-mm.

6 Q. The one I wanted to ask you about is "box" because you

7 refer to it in your statement. Can you help us: What

8 does that signify?

9 A. The box was a weekly collation of reports from

10 travellers, from the Secretariat and from missions

11 abroad -- particularly Washington and London -- that

12 were put together for circulation to the Cabinet.

13 Q. And you explain in paragraph 25 the process by which the

14 material, as it were, got into the box?

15 A. Hm-mm.

16 Q. As I understand it from your statement, you were not

17 involved in that editing; in other words, in deciding

18 what should enter the box. Is that right?

19 A. That's right. It would have been done by the political

20 section -- would have decided on that, and it would have

21 been approved by the head of the division.

22 Q. So when you refer, in paragraph 27 of your statement at

23 RNI-813-540 (displayed), to a "judgment call" -- do you

24 see that? It is four lines from the end, four or five

25 lines from the end -- that call as to what would and

 

 

30

 

1 wouldn't go into the box was not a call made by you?

2 A. That's correct.

3 Q. Thank you. Now, so far as the interest that the

4 Department of Foreign Affairs had taken in the case over

5 the previous years, were you aware, if only from your

6 perusal of the file, what role the department had taken

7 in the case in those previous years?

8 A. No.

9 Q. Thank you. So far as the period between the appeal

10 in September 1996 and June 1997, which we will come to

11 in a moment, can you remember what, if any, contact you

12 had with Rosemary Nelson during that period?

13 A. No.

14 Q. Can you look, please, at paragraph 26 of your statement?

15 A. Hm-mm.

16 Q. And at the bottom of page RNI-813-539 (displayed), you

17 say in the last sentence of the page:

18 "My meeting in Dublin with Rosemary Nelson and

19 Colin Duffy was before this."

20 You had referred to it earlier in your statement?

21 A. Yes.

22 Q. And you say:

23 "I never met Colin Duffy after that, and as I have

24 suggested, I think this meeting came after his appeal."

25 A. That's right.

 

 

31

 

1 Q. "I got the impression that Rosemary Nelson had dragged

2 him down from Northern Ireland."

3 Then you give a description of your impression of

4 his character. So do you think that this meeting took

5 place between these two events?

6 A. Yes.

7 Q. Thank you. And as far as you had understood it then,

8 the meeting was set up in order to thank the Government?

9 A. Yes.

10 Q. Is that right?

11 A. That was my impression.

12 Q. For what?

13 A. For the fact that Rosemary had been in touch with our

14 officials and for the fact that the case had been taken

15 up through the Secretariat and where our concerns about

16 the case had been expressed. That's pretty much my

17 deduction for the meeting.

18 Q. You say in your statement elsewhere that over the years

19 you worked as a traveller you had contact with a number

20 of solicitors in Northern Ireland.

21 Can I ask you this: this sort of meeting between

22 solicitor and client, was that out of the ordinary

23 for you?

24 A. No, the only -- it wouldn't often happen that they

25 happened in Dublin. I mean, I had, I think, probably

 

 

32

 

1 one other meeting in Dublin with a solicitor, maybe two

2 at most, in my time. Most of the meetings with

3 solicitors would happen in Northern Ireland.

4 Q. But what about the presence there of not only the

5 solicitor but also the client; was that unusual?

6 A. That would have been unusual.

7 Q. In fact, was there such a meeting at any other point

8 during your time as a traveller?

9 A. No.

10 Q. Thank you. Now, can we turn now to the next document,

11 which is RNI-111-000.501 (displayed). This is a note of

12 yours dated 16th June, and it appears to record, doesn't

13 it, information passed to you by Rosemary Nelson that

14 the murder of the two police officers in Lurgan had

15 taken place?

16 A. That's correct.

17 Q. And so, as I understand it, this is Rosemary Nelson

18 ringing you in order to give you information, because we

19 can see, can't we, that at this stage she wasn't

20 involved in the case?

21 A. That's right.

22 Q. And as I understand it, therefore, this information was

23 treated by you essentially as news?

24 A. That's correct.

25 Q. And it was of sufficient importance, wasn't it, to put

 

 

33

 

1 into the system?

2 A. That's right.

3 Q. You were presumably aware immediately when she made the

4 report to you of the potential significance of these

5 murders?

6 A. That's correct.

7 Q. Not least, presumably, because of what was otherwise

8 good progress towards a more peaceful situation in

9 Northern Ireland?

10 A. That's correct.

11 Q. The murder was a surprise, wasn't it?

12 A. Very much so.

13 Q. Yes. It seemed to go quite against the run of events?

14 A. That's correct.

15 Q. Thank you. And you were aware, therefore, weren't you,

16 that it would have or potentially have substantial

17 impact?

18 A. It potentially had some political implications, yes.

19 Q. Yes. Not just in the locality of Lurgan but more

20 generally in Northern Ireland?

21 A. That's correct.

22 Q. Yes. And it is for that reason, isn't it, that you were

23 concerned to pass the information on, as we see from the

24 bottom right-hand corner, not only within the Irish

25 Republic but to your embassies in London and Washington?

 

 

34

 

1 A. That's right.

2 Q. Now, you describe the information at the bottom of

3 page RNI-813-540, paragraph 29 (displayed), as being so

4 bad:

5 "... I would have wanted to put people in our system

6 on alert that something terrible had happened."

7 A. That's correct.

8 Q. Do you think that was your reaction at the time?

9 A. Yes, that's right. It was a very shocking event at

10 a politically sensitive time, and you would just make

11 a judgment call that the system would be very interested

12 in any information that we had on it, because it would

13 be the subject of immediate conversations between the

14 British and Irish sides and the Secretariat.

15 Q. That is what I wanted to ask you next, in fact. When an

16 event of this kind happened, there would be discussion

17 and contact between the two governments, presumably?

18 A. That's right.

19 Q. Yes, and the forum for that would have been the

20 Secretariat?

21 A. Yes.

22 Q. And that is why you copied this note, amongst other

23 people, to the joint secretary?

24 A. Yes, essentially both sides were trying to get a handle

25 on it.

 

 

35

 

1 Q. Yes. The next document I would like you to look at,

2 please, is at RNI-111-000.502 (displayed). I think this

3 is your note although it is not signed. Is that right?

4 A. Yes.

5 Q. Thank you. And here, some nine days later I think it

6 is, is a record of a conversation with Rosemary Nelson.

7 Is that right?

8 A. Hm-mm. It is not up on the screen.

9 Q. Oh, right. RNI-111-000.502? It is up on my screen.

10 Ah, there may be a problem with your screen.

11 A. This is the unsigned note, is it?

12 Q. Yes.

13 A. Sorry. Your question again?

14 Q. The question originally was: is it your note?

15 A. Yes, I believe so.

16 Q. Was it a note following a conversation you had had with

17 Rosemary Nelson?

18 A. Yes.

19 Q. Now, so I am clear about this, is this a note which went

20 from you to your side of the Secretariat in Belfast?

21 A. Given the way it is phrased, I would think so, but in

22 the absence of a cc list, it is impossible to say.

23 I would imagine at that stage, because of the

24 interest in the case, any such documentation would have

25 been widely circulated, including to the Secretariat.

 

 

36

 

1 Q. The second paragraph, or second sentence, therefore,

2 which begins with the word "grateful", is that

3 a question, as it were, to be passed on to the British

4 side?

5 A. Yes, exactly.

6 Q. So that the arrest of this individual was deemed, was

7 it, to be the sort of matter for proper questioning

8 within the Secretariat system?

9 A. Yes, because of the impact of the crime itself. I think

10 we were going to watch it very, very closely.

11 Q. Now, at this stage of course he hadn't been charged with

12 any crime?

13 A. That's right.

14 Q. So can you help us. Why was it that this question was

15 being posed, given that you didn't know, as I understand

16 it, that this arrest was related to the significant

17 crime we have just discussed?

18 A. I can only -- based on the note, I can only imagine that

19 I was discussing it with Rosemary and that she believed

20 that it was in connection with the crime.

21 Q. And it looks -- although the documents, I am afraid, are

22 hard to construe -- as though the matter was first

23 raised with the British side on the 27th June.

24 Can we look, please, at RNI-111-005 (displayed)? Do

25 you see in the last paragraph, 7, there is a reference

 

 

37

 

1 there to the matter last raised with the British side on

2 the 27th?

3 A. Hm-mm.

4 Q. Do you think it is possible that it was raised earlier

5 than that, as early as the 25th?

6 A. I can't really tell.

7 Q. No, and you weren't in Belfast doing the raising,

8 were you?

9 A. No.

10 Q. Can we look, please, at RNI-111-006 (displayed). Thank

11 you.

12 This, as I understand it, is a note coming back from

13 the Secretariat, your side, Mr Dowling, to Dublin, I

14 think?

15 A. Yes.

16 Q. And it looks as though, from the top left-hand corner,

17 this is a note of 27th June?

18 A. Hm-mm.

19 Q. And do you see in paragraph 1, if that is right, it

20 would appear that by this stage, 27th June, the matter

21 had been raised by the Irish side on three occasions?

22 A. Yes.

23 Q. And it looks, therefore, doesn't it, as though between

24 the 25th, when you made your note, and the time of this

25 note on the 27th, there had been three efforts by the

 

 

38

 

1 Irish side to raise the matter with the British side?

2 A. It appears so.

3 Q. That was a pretty high strike rate, wasn't it?

4 A. It is difficult for me to judge but I would imagine that

5 it is. Again, it would reflect the sensitivity of the

6 case.

7 Q. So this was a matter, was it, the murder, of sufficient

8 significance for the Irish side to be putting what

9 appears to be quite a lot of pressure on the British

10 side in the early stages of the criminal investigation?

11 A. Yes, I mean, I think -- I think the other point that has

12 to be borne in mind is that we would rely on the

13 judgment of the solicitors that we would be in touch

14 with in a normal case, and that judgment, in our view,

15 was usually correct. And therefore, if a solicitor was

16 making very strong representations to us about

17 a particular case, invariably those grounds were

18 credible and reasonable.

19 I don't recall a case where a solicitor had made

20 frivolous or erroneous concerns about a case. So,

21 therefore, if a solicitor was taking such efforts to

22 raise these issues with us, we would raise them with the

23 British. So we would be guided by the judgment of the

24 solicitor in those cases.

25 Q. Does that suggest, looking at what you have just said,

 

 

39

 

1 that during this period, between 25th and 27th June,

2 there may have been other contact by Rosemary Nelson to

3 you?

4 A. There could well have been.

5 Q. Yes. So it was your practice, was it, to take, if I can

6 put it this way, solicitors' words for it, to rely on

7 what they said, and does it follow that it wasn't your

8 practice to challenge or test the points they were

9 making before raising them with the British side?

10 A. That would be correct.

11 Q. Yes. So where we see in a number of these documents

12 various points made about the case, the police conduct

13 of the detention, et cetera, et cetera, those are

14 matters which were passed on to you by, in this case,

15 Rosemary Nelson and you passed them on in turn to the

16 British side?

17 A. Well, that's right, because we would have no other

18 sources of information on any particular case other than

19 from the solicitor.

20 Q. So there was no filter?

21 A. We didn't have any other place to go for information.

22 Q. And just so I am clear about this, if there was to be

23 a challenge to the correctness, authenticity of any

24 point made to you, it would come presumably from the

25 other side?

 

 

40

 

1 A. Yes, we would have to -- we would have to raise the

2 cases and they would have to come back to us on it.

3 I should also clarify that we would also take

4 a similar approach from NGOs as well as solicitors.

5 Q. We can see that in paragraph 2, can't we?

6 A. Hm-mm.

7 Q. That, again, by this stage, 27th June, you had already

8 received representations from politicians, and now, at

9 this stage, from the Committee on the Administration of

10 Justice?

11 A. Yes.

12 Q. Those representations being made to you?

13 A. Hm-mm.

14 Q. And I presume, therefore, that CAJ was one of the NGOs

15 with which you were in contact in Northern Ireland?

16 A. That's right.

17 Q. And in fact I think you deal with this in greater detail

18 in your statement?

19 A. Hm-mm.

20 Q. Thank you. Now, so far as this note is concerned, you

21 say in paragraph 6 that serious concern is expressed at

22 a miscarriage of justice. I'm sorry. It is said by

23 Mr Dowling in this note, not you. And that suggests,

24 doesn't it, because this is a report, that that was the

25 point made to the other side within the Secretariat?

 

 

41

 

1 A. I imagine so.

2 Q. Yes. Now, these were ongoing criminal proceedings,

3 weren't they?

4 A. Hm-mm.

5 Q. And presumably you were aware that there were,

6 therefore, considerable limits on what the executive in

7 Northern Ireland could do in relation to the conduct of

8 those proceedings?

9 A. That's right.

10 Q. And it was, wasn't it, a little early to be intervening

11 through the Secretariat to suggest that a miscarriage of

12 justice could be in question in those circumstances?

13 A. These things are judgment calls. I mean, our brief was

14 to ensure confidence in the administration of justice.

15 And the earlier you got to a case that may have some

16 indications that all was not well, the better.

17 The fact is that well in advance -- in advance of

18 the concerns being expressed, we had been in to the

19 Secretariat, allowed us to respond to the

20 representations that were being made to us and being

21 able to say we have raised it with the Secretariat.

22 Clearly, the Secretariat had to navigate uncharted

23 waters in this sense, that it is an intergovernmental

24 process that crossed with a judicial or policing

25 process. And we were also aware from the general cases

 

 

42

 

1 that we had come across that the RUC had a fair degree

2 of discretion in terms of the prosecutorial process.

3 But yes, we are in a grey area where the representations

4 are being made to another side that has its own discrete

5 systems, but nonetheless that was the purpose for the

6 Secretariat being established.

7 Q. That's an obvious question that arises, doesn't it? It

8 was your view, was it, that this was a proper matter to

9 be raised within the Secretariat?

10 A. Not only was it a proper matter, it was the subject of

11 the 1985 Agreement, where confidence of the

12 administration of justice was deemed an

13 intergovernmental item for discussion.

14 Q. So in that regard, therefore, the Irish side saw it as

15 something within the range of matters set up as a result

16 of that agreement to be discussed between governments?

17 A. We were mandated to do it by that agreement.

18 Q. And presumably that was of particular importance to your

19 section as the title of the section shows us?

20 A. That was within our remit.

21 Q. Yes. And can I assume, therefore, that during your time

22 as traveller, this was one of a number of cases upon

23 which you fed in representations or comments to your

24 side of the Secretariat?

25 A. Absolutely. Our belief was that part of the instability

 

 

43

 

1 in Northern Ireland arose from a lack of confidence in

2 the administration of justice, and the Secretariat and

3 conference were set up to deal with those issues. We

4 would have to find those issues, to find those issues

5 and articulate them. We would also have to make

6 a judgment as to which cases we pursued.

7 Q. That is the obvious point that arise from that answer,

8 isn't it? You say that you continued to take solicitors

9 at their word?

10 A. Hm-mm.

11 Q. So where did the judgment call come in?

12 A. Well, the judgment call came in based on the

13 relationship with the solicitors.

14 I mean, clearly, for a solicitor to raise

15 a frivolous case or a case that didn't bear scrutiny in

16 terms of potential difficulties, would undermine their

17 credibility. So you would -- I mean, these things are

18 essentially judgments that you make based on your

19 relationship with solicitors, based on a your experience

20 and based on a certain knowledge about where things may

21 or may not be -- may go wrong, as it were. So, yes,

22 they are judgment calls.

23 Q. Were you confident then at this stage, in June 1997,

24 that you were able to form a judgment about this

25 particular solicitor?

 

 

44

 

1 A. Oh, yes. I have to say that of course we are not coming

2 to definite conclusions; we are raising issues about the

3 probity of the process.

4 Q. Now, you set out your view in relation to

5 Rosemary Nelson in paragraph 30, and this is at

6 page RNI-813-541 (displayed), and you say there that:

7 "She was very reliable on things like this and so,

8 as a result of this, I put it into the system."

9 A. Yes.

10 Q. "And she was very categorical that Colin Duffy could not

11 have been involved in the incident. This would then

12 form the basis of discussion with the British side."

13 This I take to be your minute, your note?

14 A. Yes.

15 Q. And her complaints, her concerns about it?

16 A. Yes, and she was absolutely emphatic.

17 Q. And you remember that from your conversation with her,

18 do you?

19 A. Yes.

20 Q. Now, the response that came back, if we can look,

21 please, at RNI-111-000.503 (displayed), this looks like

22 the formal response. I don't know if you can help as to

23 whether there was a less formal response earlier,

24 because it is some days later. Are you able to assist

25 on that?

 

 

45

 

1 A. On this particular document?

2 Q. On whether there was an informal response from the

3 British side earlier than that, 9th July?

4 A. No.

5 Q. Thank you. But we see in paragraph 2:

6 "The matters raised by the Irish side may be

7 material to the criminal proceedings which Mr Duffy

8 is currently subject to. It would, therefore, not be

9 appropriate for the British side to make any comment."

10 Presumably you remember that reaction coming back?

11 A. I can't remember that specific reaction, but that would

12 be a fairly typical response. I mean, again, it goes

13 back to that grey area between raising an issue and how

14 the British are constrained in their ability to respond.

15 In raising a issue, I think we were simply alerting

16 the British side to the fact that it all needed to be

17 done correctly, because it was under some scrutiny, and

18 therefore there may be political fallout. And if it was

19 mishandled in any procedural way, there could be

20 consequences and it could be raised in the conference

21 eventually.

22 Q. So in a sense you were putting them on notice that these

23 proceedings were a matter of interest to you and that

24 you would be scrutinising future developments?

25 A. That's correct, because, I mean, the process really was

 

 

46

 

1 designed not to put items on the conference agenda but

2 to keep them off the conference agenda. It was

3 a failure in the system if items hadn't been resolved at

4 official level and had to be discussed politically. So

5 our purpose in all of this was to try and resolve issues

6 before they came to a head and became politically

7 controversial.

8 Q. So you raised them in order for discussion to take place

9 so that they could, in that sense, be managed --

10 A. Hopefully defused.

11 Q. Defused, I am sorry, and therefore that they wouldn't

12 trouble the politicians at the conference?

13 A. Not simply troubling the politicians but also creating

14 confidence in the administration of justice so that

15 cases didn't become controversial.

16 Q. So this was, as you see it then, a valve, a valve for at

17 least part of the population in Northern Ireland. Is

18 that a fair way of putting it?

19 A. It was an mechanism by which doubt or lack of confidence

20 in the system could be corrected to restore confidence

21 in the rule of law, and that is what the Secretariat

22 existed to do.

23 Q. What I was going to suggest to you was that those who

24 didn't have confidence in the system could at least feel

25 that there was another way; in other words, that they

 

 

47

 

1 could raise grievances with your government and that

2 they would be addressed by feeding into the Secretariat?

3 A. Precisely.

4 Q. Thank you.

5 A. And that would be the case across all the issues cited

6 in the 1985 Agreement.

7 Q. That is, if I may say to, a very important point,

8 because of course presumably, in your work as

9 a traveller, you dealt with a whole range of issues?

10 A. Hm-mm.

11 Q. Not just those to do with miscarriages or alleged

12 miscarriages of justice?

13 A. My particular remit was just on the security issues, but

14 there were other travellers dealing with, for example,

15 fair employment and social issues and other issues like

16 that.

17 Q. So the breadth of the issues covered by the agreement

18 and thus the conference and the Secretariat was far, far

19 wider, wasn't it?

20 A. Absolutely.

21 Q. Than these sorts of cases?

22 A. Yes.

23 Q. Now, in relation to Rosemary Nelson, you say that there

24 were a number of other solicitors you spoke to.

25 So far as she was concerned, however, were you her

 

 

48

 

1 main contact during these years at the Irish Government?

2 A. I couldn't say. I was one of her contacts. I am sure

3 she was in touch more directly as well with other

4 colleagues, but I was her main contact on the parades

5 issue.

6 Q. Yes. On the parades issue?

7 A. Yes.

8 Q. Do you think there were other significant contacts then

9 on this Duffy matter?

10 A. I don't know. I could imagine that she was in touch

11 with other officials as well.

12 Q. We will come to the parades matter in a moment. So far

13 as this case is concerned, can I just ask you to look

14 back at RNI-111-006 (displayed).

15 We discussed this question of paragraph 6 and the

16 concern about a miscarriage of justice. Can I ask you

17 this: again, based on your experience as a traveller,

18 was it unusual to receive this level of detail at such

19 an early stage of a case from a solicitor?

20 A. Yes, it would have been probably unusual. The bulk of

21 our cases and the detail that we got into on most cases

22 were cases that had already been progressed through the

23 court system and about which doubts continued to exist.

24 Q. So this was, was it, a one-off in terms of the amount of

25 information coming to you at a very early stage? Can

 

 

49

 

1 you think of another case, for example, during your

2 period?

3 A. Not that I dealt with. There was, I believe, another

4 case that other officials would have dealt with, that

5 had happened pretty quickly in the process, but this

6 would have been one of the areas. It was a very quick

7 reaction.

8 Q. Thank you. Can I ask you to look at another document

9 you refer to in your statement. It is at RNI-111-001

10 (displayed).

11 Now, this is coming from Dublin to your side in

12 Belfast, to Mr Dowling again. The issue I want to ask

13 you about is in paragraph 4. Again, it looks as though

14 this is a relatively early note. If you see there is

15 a reference to an arrest on Monday evening. That is

16 paragraph 1, although the note appears to be undated.

17 A. Hm-mm.

18 Q. In paragraph 4, however, it records that:

19 "She alleges that the police taunted Duffy, saying

20 that they were sure his wife and Rosemary Nelson were

21 proud of him. Nelson feels this implicates her or

22 implies she is happy with the two killings."

23 We see at the very last line that it was copied to

24 you, this note, on your return?

25 A. Hm-mm.

 

 

50

 

1 Q. Can I ask you about paragraph 4?

2 A. Hm-mm.

3 Q. Was this the first example you heard of in relation to

4 Rosemary Nelson of the solicitor, Rosemary Nelson, being

5 identified with her client?

6 A. I believe it probably is, yes.

7 Q. Was that something that you had come across earlier in

8 your work as a traveller?

9 A. Not in a specific case. I mean, I think I was aware as

10 a traveller that many -- well, that there was a view

11 amongst particularly Nationalist solicitors that

12 a proper distinction was not being made between their

13 work and their clients, that they were seen as advocates

14 for their clients and for their client's beliefs, rather

15 than purely as legal agents, as it were.

16 But it's a vague perception. It is not something

17 you could specify. It did arise in cases and you can

18 see an example of it here, but it would have been

19 a general fear amongst solicitors that that distinction

20 was not always respected.

21 Q. The case as recorded here is an extreme one, isn't it?

22 A. Yes.

23 Q. Because the implication, at least that identified by

24 Rosemary Nelson, is that she was either implicated in or

25 happy with the two murders?

 

 

51

 

1 A. I can assume it was recorded because it had that

2 significance.

3 Q. Yes. In paragraph 31 of your statement, if we can just

4 look at that, please, RNI-813-541 (displayed), you are

5 talking about this document and this paragraph, and you

6 say:

7 "I would have included this information."

8 I think that must be a mistake by you, because as we

9 have seen, this is a document which is in fact copied to

10 you?

11 A. That's right.

12 Q. And I think not written by you?

13 A. Yes.

14 Q. Is that right?

15 A. Yes, I think it was meant to cover the point that if I

16 had been writing a report like that and she had raised

17 it, it would be an issue that you would include. But,

18 yes, you are correct.

19 Q. Because it was an important issue, wasn't it?

20 A. It was, yes.

21 Q. Not least in the context of this particularly important

22 crime?

23 A. That's correct.

24 Q. Thank you. And presumably your response on the Irish

25 side was that this was a matter that needed specifically

 

 

52

 

1 to be raised with the British side?

2 A. That's right.

3 Q. And you set it in its context at the end of paragraph 31

4 and by specific reference there to the Finucane case?

5 A. That's correct.

6 Q. Which you clearly regarded at the time as another case

7 of identification between lawyer and client?

8 A. Yes.

9 Q. Can we look at RNI-111-002, please (displayed). This

10 seems to be dated 18th July. The reference to alleged

11 threats and insinuations by the RUC against his

12 solicitor, do you think that is a reference to this sort

13 of comment as recorded in paragraph 4?

14 A. Sorry, could you repeat the question?

15 Q. We were looking, if you remember, at paragraph 4 of

16 earlier document.

17 A. Hm-mm.

18 Q. And the reference there to the fact that Rosemary Nelson

19 was proud of Colin Duffy and the feeling she had that

20 this implicated her or implied that she was happy with

21 the murders.

22 A. Yes.

23 Q. Do you think that is the point being raised here in this

24 minute or note of 18th July?

25 A. Could you be more specific?

 

 

53

 

1 Q. Well --

2 A. Are you saying in terms of the question being asked:

3 "Can you reassure us that the case against him

4 doesn't warrant these concerns"?

5 Q. No, I mean the reference to threats and insinuations.

6 A. I'm not clear.

7 Q. What I am trying to address with you is this,

8 Mr McKee -- and it is my fault if it is not clear -- you

9 said earlier, do you remember, that you thought the

10 example I showed you -- and unfortunately, because we

11 don't have paper files, you and I can't flick backwards

12 and forwards -- in paragraph 4 of the document at

13 RNI-111-001. Let's see if we can get them both on the

14 screen, please (displayed).

15 I asked you whether you thought this was the first

16 occasion on which you had heard of threats or

17 insinuations or allegations of this kind in relation to

18 to Rosemary Nelson. Do you see?

19 A. Yes.

20 Q. And this happens after Mr Duffy's arrest in June 1997?

21 A. Okay.

22 Q. And you deal with it in your statement in the paragraph

23 I showed you at 31?

24 A. Okay.

25 Q. And you said to me that you thought it was the first

 

 

54

 

1 such occasion?

2 A. Hm-mm.

3 Q. If you look at this memo on the left-hand side of the

4 screen, the position appears to be rather different,

5 doesn't it, because it suggests that it was the release

6 of Mr Duffy, which we know took place in September 1996,

7 that began the threats and insinuations and that that

8 was something the Irish Government was aware of?

9 A. In terms of the first paragraph?

10 Q. Yes.

11 A. Okay. But is this my note, the one on the left?

12 Q. I am unable to tell you, I am afraid, because it is not

13 signed.

14 A. Yes, I am not aware that it is my note. The only thing

15 I can say is that very often it may be that this is. In

16 hindsight; that, in other words, you have somebody

17 saying this is when it started. So whoever wrote the

18 note says, "We believe that it began before", if you

19 follow my logic.

20 Q. I do.

21 A. But I am not sure that this -- I can't identify that as

22 my note.

23 Q. No.

24 A. No.

25 Q. What I am trying to do is to establish what happened in

 

 

55

 

1 relation to the matters she raises in paragraph 4 of the

2 other document.

3 A. Right.

4 Q. And what I am trying to elicit from you is what impact

5 it made on you, and presumably it would have been

6 a greater impact if you weren't aware of these sort of

7 threats or insinuations having been made before?

8 A. Hm-mm.

9 Q. And then what you think was done with that information

10 in relation to raising it with the British side, because

11 we can't find information in the files which shows that

12 the Irish side raised this particular point with their

13 opposite numbers.

14 A. Okay.

15 Q. Is that something you can help us with?

16 A. I don't think so, because -- like I say, I can't

17 identify that note as mine and it also looks like --

18 when it says "it seems that this release coincided", it

19 looks like that is kind of retrospective, if you know

20 what I mean. Whereas on the other case, it is more

21 specific -- in the other document, it is more specific.

22 And when you raise it with me as, "Was this the first

23 time that the issue came up?" that would be my

24 recollection, that it was.

25 Q. Yes.

 

 

56

 

1 A. Yes.

2 Q. Thank you. Can you help at least with this. Do you

3 think this document at RNI-111-002 (displayed) is

4 a draft of a note which went to the other side? Look at

5 the last sentence.

6 A. It certainly seems that way.

7 Q. Yes. Thank you. Now, can I ask you about these

8 communications generally. When you put up matters to

9 the other side and got a response, would you discuss the

10 response with Rosemary Nelson?

11 A. Yes. But in a way -- I mean, normally one had to make

12 a judgment about these matters. Because they were --

13 they were between governments, you would give a sense of

14 where it was going, rather than anything more specific.

15 But, again, it was a matter of trust.

16 In contact and information work, it is essentially

17 trading. You have -- if you don't establish a degree of

18 openness and transparency, you won't simply be

19 an effective traveller and I think your interlocutors

20 will immediately sense that you are holding stuff back

21 or that it's one-way traffic. It has to be two-way

22 traffic to a degree, within the parameters obviously.

23 Q. To encourage them to be open with you, you had to be,

24 within parameters, open with them?

25 A. A relationship of trust is a two-way process.

 

 

57

 

1 Q. Yes.

2 A. And they would have to begin to rely on you and to get

3 a sense of how you operated within the system and that

4 you were going to give them some sense of the landscape

5 in which they were operating as well. So, yes, you

6 would have to exchange information and views and

7 judgments.

8 Q. And that was an essential part of your work as a

9 traveller, wasn't it?

10 A. Absolutely.

11 Q. To garner information?

12 A. Absolutely. The most effective travellers were the ones

13 who developed those kind of relationships.

14 Q. Now, if we look on to RNI-111-005.502 (displayed), we

15 see one of your notes later in the summer, 18th August,

16 again to Mr Dowling. And can I infer from this that you

17 would have received further information about the case

18 from Rosemary Nelson?

19 A. Usually notes like this would be triggered by a call.

20 Q. And the information would be relatively detailed by the

21 look of it, because it included, for example, at

22 paragraph 3, reference to the video footage?

23 A. Yes. I mean, the more detail that we could provide to

24 the British side, the more detail we would be likely to

25 elicit.

 

 

58

 

1 Q. Now, this was presumably an issue, an evidential issue

2 in the case, because it was a video that apparently

3 showed the main witness in a different place, if I can

4 put it that way. It is a rather bad copy, I am afraid.

5 A. Hm-mm.

6 Q. Did you seriously expect the British side to give you

7 a detailed answer to a question effectively about the

8 case?

9 A. No, I think we both -- both sides knew how, essentially,

10 the relationship was played out. We would provide as

11 much detailed information as we had to confirm our -- to

12 confirm or affirm our concerns and we would leave it

13 with them. We didn't expect a detailed reply, but they

14 would know that, again, we were paying close attention

15 to that particular case.

16 Q. It is all part of the process of keeping them aware that

17 you had the case under your eye, as it were?

18 A. That's correct. And also, from our point of view,

19 should the case ever become very, very controversial and

20 receive a lot of attention, it was important for us to

21 be able to demonstrate that we had taken due care to

22 continue to raise the case with the British side.

23 Q. Now, we can see from the next page in the bundle, which

24 is RNI-111-005.003 (displayed), that what you put up to

25 Mr Dowling gets passed on in paragraphs 2, 3 and 4 of

 

 

59

 

1 his note to the other side?

2 A. Hm-mm.

3 Q. Can I ask you to look at paragraph 5, based on the

4 representations. This reflects the range of people

5 speaking to you that we saw in an earlier document, and

6 there is then an quotation, isn't there, from a media

7 piece about the case?

8 A. Hm-mm.

9 Q. So is it your recollection that during these months the

10 interest of others -- in other words, apart from

11 Rosemary Nelson -- continued? The NGOs, the politicians

12 and the media?

13 A. Sorry, could you repeat the question?

14 Q. Is it your recollection that in these months during the

15 currency of the case, the interest of people who had

16 originally contacted you, the NGOs, the politicians and

17 the media, continued?

18 A. Yes.

19 Q. And you fed all that back into the system via your civil

20 servants in Belfast?

21 A. That's correct.

22 Q. Again, that was all part, was it, of keeping the British

23 side well aware that you had the matter under scrutiny?

24 A. Not simply that we had it under scrutiny but we were

25 alerting them to the fact that this could develop

 

 

60

 

1 momentum as a controversial case, and if it did, it

2 would damage confidence in the administration of

3 justice. And our job was to make sure that that didn't

4 happen.

5 Q. You say, however, in your statement that this case was

6 in fact more high profile with NGOs, as I understand it,

7 than it was publicly?

8 A. That's often -- that often happens in cases. There are

9 a range of different cases that we dealt with. Not all

10 of them would get the kind of public momentum, for

11 example, as the Finucane case.

12 The more regular pattern was that you would have

13 cases that would only be the subject of attention from

14 NGOs and human rights activists, and only on occasion

15 would it surface publicly. But nonetheless, this

16 entered the realm of dialogue about confidence in the

17 administration of justice. So you weren't driven just

18 by the fact that it was given newspaper coverage.

19 Q. But in relation to the NGO interest, they would be,

20 would they, campaigning in relation to various issues

21 such as the administration of justice?

22 A. Yes, they would be, yes.

23 Q. And to that extent then, you were assisting them by

24 these interventions with their campaigns?

25 A. Well, it was more they were assisting us, in the sense

 

 

61

 

1 that -- and I go back to the brief that we had, which

2 was to address and redress and hopefully defuse issues

3 regarding confidence in the administration of justice.

4 The human rights organisations, and particularly

5 CAJ, were very, very useful in filtering out what were

6 genuine issues, but also, more importantly, what were

7 the patterns, because ultimately this whole process of

8 exchanging views and of following cases was to find what

9 were the systemic patterns, where were the flaws and

10 what needed to be corrected. And ultimately this

11 process led to the codification of issues that would

12 subsequently be addressed, for example, in the criminal

13 justice review that emerged from the 1998 Agreement.

14 Q. Do you also see, as I think you say in your statement,

15 that the pattern review in relation to policing formed

16 part of that?

17 A. Absolutely.

18 THE CHAIRMAN: Would that be a convenient moment to give the

19 stenographer, I think, a quarter of an hour break? We

20 will return just after half past 11.

21 (11.16 am)

22 (Short break)

23 (11.32 am)

24 MR PHILLIPS: Mr McKee, before we carry on, can I just go

25 back to one document and ask you a question. It is at

 

 

62

 

1 RNI-110-001.501 (displayed). This was the very first

2 document in the summer 1997 series. We looked at it

3 earlier and you confirm that this was Rosemary Nelson

4 passing information on to you.

5 A. Hm-mm.

6 Q. Can you remember whether at that stage, the first

7 contact in relation to these murders, she made any

8 reference to Mr Duffy?

9 A. No.

10 Q. She did not?

11 A. No, I can't recall whether she did or not.

12 Q. Is it something you might have written down had she

13 done so?

14 A. I believe so.

15 Q. Now, in paragraph 48 of your statement, at RNI-813-546

16 (displayed), you, in talking about contact with

17 Rosemary Nelson, say that you wouldn't say that

18 Rosemary Nelson was necessarily in touch with you any

19 more than other people were. I assume you mean any

20 other solicitors?

21 A. Yes.

22 Q. And we talked about that a little earlier on. Can I ask

23 you about the amount of contact in relation to this

24 particular case. Was that unusual?

25 A. It really depends on the topicality of the case and as

 

 

63

 

1 events happen. In other cases you might get a

2 concentrated period of activity if, for example, there

3 was an appeal or there was an run-up to an appeal and

4 you could have a short period of intensity that -- in

5 dealing with that particular case.

6 So in a sense, I didn't regard it as unusual. It

7 was just, you know, the run of events were requiring

8 this degree of attention. This was also, you know -- I

9 had nothing really to measure it against. So I didn't

10 at the time regard it as unusual. It was just an issue

11 that was live, as it were. I expected it to recede

12 until it was required attention again. You dealt with

13 it as you needed to.

14 Q. When you said you didn't have any experience of this

15 sort of thing before, can I ask you to explain that?

16 A. In the sense that I had only become a traveller in 1996.

17 So you are kind of getting familiar with what the brief

18 is, and so on.

19 I wouldn't have regarded it as particularly unusual,

20 except for the fact that it was topical, it was getting

21 a lot of attention and it needed a degree of attention

22 to follow it through.

23 Q. And based on your conversations with her at this time,

24 did you regard the way she was dealing with the case as

25 itself unusual?

 

 

64

 

1 A. I don't recall ever having that feeling, that it was

2 unusual.

3 Q. Did she seem to be particularly involved with the

4 injustices that she described to you on the telephone?

5 A. Could you clarify when you say "involved with"?

6 Q. Did you get the impression that she was herself angry or

7 irritated by what she alleged to be miscarriages of

8 justice in this case?

9 A. Well, as I got to know her, if I can put it in these

10 terms -- as I got to know her, I was aware that she took

11 the rule of law particularly seriously. She did feel

12 that there were profound grievances that needed to be

13 addressed, and in that context this case seemed to be

14 brought to a very fine point.

15 I can't say that it struck me at the time that she

16 took an unusual degree of personal interest in it except

17 that I just assumed that she was a very -- she was very

18 committed to the rule of law and to pursuing cases, and

19 she was, as you know, widely characterised as a human

20 rights activist rather than as a solicitor. At the

21 time, I don't recall being particularly struck by her

22 being kind of over and above the call of duty.

23 THE CHAIRMAN: Had you yourself at this time had any legal

24 education or legal training, or experience of the

25 criminal courts in the Republic?

 

 

65

 

1 A. No.

2 MR PHILLIPS: Thank you. Now, so far as the more general

3 issues that you referred to earlier and your

4 Government's interests, you deal with those in

5 paragraphs 41 to 43 of your statement, and that begins

6 at RNI-813-543 and goes over to RNI-813-545.

7 You say on RNI-813-542 (displayed) that -- I think

8 this is right -- you thought you might have appeared to

9 the British side to be something of a nuisance in your

10 interventions in cases. Is that something you were

11 aware of at the time?

12 A. Only in the general sense that clearly you are raising

13 issues that need to be dealt with and, therefore -- and

14 they are not easy cases to deal with, because the

15 underlying assumption is that something has gone wrong

16 in the system.

17 So you are aware that these can be -- have to be

18 handled in a certain kind of way, and obviously you need

19 to get responses from the other side, which are

20 difficult for them too.

21 Q. Now, the point that perhaps might have been taken by the

22 British side to you was, well, look, these are points

23 for the proceedings. They are to be sorted out under

24 the rules applicable in the criminal case. You must

25 leave those proceedings to take their own course.

 

 

66

 

1 Was that a point made to you at the time?

2 A. I don't recall it being made. I mean, it was clearly

3 the -- their general approach, but if that was the case,

4 we wouldn't have established it as an item in 1985. We

5 wouldn't have set up a conference and we wouldn't have

6 set up a secretariat and we wouldn't have been sitting

7 across the table from each other.

8 Q. You say in paragraph 43 of your statement that one of

9 your concerns was to do with the administration of

10 justice and that -- turning over to RNI-813-545

11 (displayed) -- the Colin Duffy case was one that may

12 have demonstrated some of the problems that existed with

13 the system. Can you explain what that means?

14 A. The point I think I am getting at there is that -- and

15 it was a point that was subsequently addressed in the

16 negotiations and by Patten -- was the degree to which

17 the police were involved in the prosecutorial system; in

18 other words, that there was too much initiative and --

19 on their part and that you needed to bring in legal

20 counsel much earlier in the process.

21 Q. What was your understanding of the function of the

22 Director of Public Prosecutions at the time?

23 A. That it was too far downstream, that it needed to be

24 advanced in terms of cases.

25 Q. That was your government's view, was it?

 

 

67

 

1 A. No, this was a view that began to emerge as we dealt

2 with these kind of cases.

3 Q. And your side then regarded this particular case as an

4 example of that?

5 A. Potentially.

6 Q. Potentially?

7 A. Potentially, because we obviously didn't know what the

8 facts were. We were raising concerns, but we couldn't

9 know what the facts were in the sense that we weren't

10 handling the actual case.

11 I mean, the issue is that we are not part of the

12 Northern Ireland jurisdiction in those terms, we are on

13 the outside looking in, and the conference and

14 secretariat mechanism was a way to allow us to do that,

15 to try and create a greater sense of confidence in the

16 administration of justice.

17 Q. What I was going to say was in this case, as you know,

18 what actually happened was that the Director of Public

19 Prosecutions decided there should be no further

20 proceedings at the beginning of October?

21 A. Yes.

22 Q. How did that factor into your view of the working of the

23 system?

24 A. I think we were -- because the point of our remit was to

25 avoid difficulties in the administration of justice, I

 

 

68

 

1 think it came as something of a relief to us.

2 Q. Can we look, please, at one further stage of the matter

3 before that decision was made? It is at RNI-111-014.501

4 (displayed). It is from you, this memorandum, to

5 Mr Dowling again. It is 9th September, as you see at

6 the top left. And there is reference there to two of

7 the NGOs expressing their concerns in the first two

8 paragraphs.

9 If we look at paragraph 3, you say that a copy of a

10 statement is attached; do you see in the bracket? And

11 that is a statement of the brother of a witness in the

12 case.

13 A. Hm-mm.

14 Q. And indeed, in the same file we see the statement

15 beginning at RNI-111-011 (displayed). Can we see that,

16 please, RNI-111-011?

17 A. Hm-mm.

18 Q. Thank you. Can I just ask you: at this stage of your

19 work as a traveller, had you been provided before with

20 a witness statement in a current case?

21 A. No, not that I recall.

22 Q. Were you ever subsequently, in your work as a traveller,

23 provided with such a statement?

24 A. Not that I can recall, no.

25 Q. No. Now, in relation to your comments, if we go back to

 

 

69

 

1 RNI-111-014.501, please (displayed), paragraph 3, and

2 the comments you make there essentially about the

3 unreliability of the witness, am I right in thinking

4 that the basis for those comments would have been

5 Rosemary Nelson herself?

6 A. Which comment in particular?

7 Q. In paragraph 3.

8 A. I would gather so, yes.

9 Q. Yes. And we can see also in the note that you pass on

10 to your side in Belfast a copy of Mr Mullin's letter?

11 A. Correct.

12 Q. Can we move on to another topic, which is the question

13 of lawyers and their clients. We touched on this

14 briefly earlier.

15 In your statement at paragraph 32, and this is

16 page RNI-813-542 (displayed), you use the expression

17 "guilt by association". Do you see in the first

18 sentence?

19 A. Yes.

20 Q. And then you go on to talk about a perception?

21 A. Hm-mm.

22 Q. In your view, who was it who held or had this

23 perception?

24 A. In the immediate instance, it would be the police.

25 Q. And what was the basis for that view that you held?

 

 

70

 

1 A. It would be based on some individual cases, based on

2 anecdote and based on conversations with solicitors.

3 Q. Did they include conversations with Rosemary Nelson?

4 A. Not that I can recall directly.

5 Q. But based then on conversations with other lawyers in

6 Northern Ireland?

7 A. Yes.

8 Q. Now, elsewhere in your statement at paragraph 80 you

9 refer to this as a "nebulous issue"?

10 A. Hm-mm.

11 Q. In the context of harassment?

12 A. Hm-mm.

13 Q. And was it your understanding then that the two issues

14 were connected; in other words, that the identification

15 of client with lawyer was part of the picture that led

16 to harassment?

17 A. Yes.

18 Q. What do you mean when you use that term "nebulous" in

19 paragraph 80?

20 A. In the sense that we didn't have a whole series of cases

21 that had been brought to the point where you could say

22 specifically this happened in this interview in this

23 police station and this solicitor was referenced.

24 It was seen to be simply -- I remember one solicitor

25 saying to me they took it as just a part of their

 

 

71

 

1 working lives that these things were being made, that

2 these comments were being suggested and that there was

3 this confusion.

4 Obviously, in terms of the Finucane killing, that

5 brought it to a very fine point. But it was just

6 generally regarded as something -- that is why I say it

7 was nebulous. You didn't have this series of cases that

8 you could say it was a pattern; it just seemed to be

9 part of the package of being a solicitor in

10 Northern Ireland.

11 Q. Is this right: you didn't have, as it were, clear

12 examples brought together in your files, it was

13 something, an issue which was around about which people

14 made comments to you?

15 A. Yes, exactly.

16 Q. But you couldn't have pointed to any particular, as it

17 were, proven example of the phenomenon?

18 A. No, it was -- it would be regarded as just a fact of

19 life for solicitors.

20 Q. And that, again, was your understanding of their view,

21 based on your conversations with them?

22 A. Yes, and it didn't particularly feature as a point of

23 concern with solicitors; it would just be referenced

24 occasionally in conversations. It was part of the

25 matrix, part of your understanding of the environment in

 

 

72

 

1 which they worked. That's why I used the term nebulous.

2 It wasn't very specific or concrete. It was just there

3 as always a possibility in the cases they were dealing

4 with.

5 Q. Thank you. Now, turning then to another topic you deal

6 with, which begins in paragraph 15 -- and this is at

7 RNI-813-536 (displayed) -- you are talking there about

8 the RUC and you begin by dealing with the question of

9 how the police viewed Rosemary Nelson?

10 A. Hm-mm.

11 Q. What I understand you to be saying there, of course, is

12 you didn't have direct contact with members of the

13 police force?

14 A. No.

15 Q. So it follows, doesn't it, that everything you gleaned

16 or gathered about it came from, as it were, the other

17 side of the equation and not the police?

18 A. That's correct.

19 Q. And so when you refer later in the paragraph to sources

20 who said to you there were close relations between some

21 uniformed members of the RUC and Loyalist

22 paramilitaries, those would be sources, would they,

23 including lawyers in Northern Ireland?

24 A. I wouldn't like to be specific about the sources.

25 Q. No. But can I just be clear: you say that because of

 

 

73

 

1 the confidentiality which existed when the information

2 was imparted to you?

3 A. Yes.

4 Q. Thank you. Did you yourself on the Irish side take

5 action in relation to this particular issue?

6 A. No.

7 Q. Can you explain to us, please, the connection that you

8 make here between this question and what you say is the

9 way the Hamill case broke in court?

10 A. Well, I think that is a matter of record, that there was

11 established inappropriate contact between an alleged

12 perpetrator and an RUC officer.

13 Q. Can I ask you -- and please indicate if this creates

14 difficulty in relation to confidentiality -- whether the

15 sources you are referring to would have been, if I can

16 put it this way, in the Nationalist or Catholic side of

17 the community?

18 A. Yes.

19 Q. Thank you. Did you have any sources in the other side?

20 A. No.

21 Q. Thank you. Now, in paragraph 79 you return to this

22 topic, because you are dealing there with the issue of

23 policing in general. And just so it is clear to us, you

24 describe it as a major issue.

25 We talked earlier about the Patten Commission. What

 

 

74

 

1 were your government's concerns at this point in

2 relation to policing in Northern Ireland?

3 A. You mean -- sorry, which paragraph in particular are you

4 referring to?

5 Q. 79, which is at RNI-813-556 (displayed).

6 A. When you say the difficulties that we had with policing,

7 are you talking in very broad terms?

8 Q. Yes.

9 A. Oh, I think a lot of those issues -- the issues were

10 essentially about the nature of policing, its

11 composition and its ethos, whether -- the need for

12 greater human rights training, greater professionalism,

13 greater impartiality, greater accountability, greater

14 responsiveness to the community.

15 The whole purpose of the Patten Commission was to

16 introduce the idea of community-based policing.

17 Fundamentally, the issue of policing was about

18 Nationalist confidence in policing which, in our view,

19 was not there. I think that was pretty well established

20 as an issue. And the purpose of 1985 Agreement and of

21 the Northern Ireland Secretariat was to try to improve

22 that.

23 Q. It is my understanding from your statement that as

24 a result of the Patten Commission's recommendations and

25 implementation, amongst other things, that the concerns

 

 

75

 

1 that you had were, at least to a very large extent,

2 addressed subsequently?

3 A. Oh, yes, absolutely. No, I think the changes in

4 policing were a major success for the 1998 Agreement, in

5 our view.

6 Q. Thank you. Can I ask you, in relation to this topic: did

7 you discuss with Rosemary Nelson her own view of the

8 RUC?

9 A. It didn't actually come up hugely in conversations,

10 I have to say. Our conversations were more broadly

11 political about Northern Ireland than specifically about

12 the RUC.

13 She would -- I don't recall her ever naming, for

14 example, particular RUC officers. It wasn't really

15 a specific topic of conversation with us.

16 Q. Did you form the impression, for example, that she had

17 a Nationalist view of the policing issue?

18 A. I think that would be a fair characterisation.

19 Q. Yes. Now, can I ask you about the question of threats.

20 At RNI-111-057 (displayed), we see a memo from you,

21 which comes a year later.

22 A. Hm-mm.

23 Q. And it concerns a different topic that we are going to

24 talk about in a minute, namely the parades issue and the

25 Garvaghy Road. But the part of the note I want to draw

 

 

76

 

1 to your attention at the moment is in the fifth line in

2 the bracket. Do you see?

3 A. Hm-mm.

4 Q. "In an aside, she showed me a death threat which she has

5 received recently. We have in the past raised our

6 concerns about her safety through the Secretariat."

7 Now, what I want to ask you about this, please, is

8 as follows. This, I think, is, as it says, a note of a

9 meeting you had with Mr Mac Cionnaith and

10 Rosemary Nelson?

11 A. Hm-mm.

12 Q. Can you remember anything about the note that she showed

13 you?

14 A. No.

15 Q. You can't remember how it was written, whether it was

16 typed or anything of that kind?

17 A. No, I don't recall it.

18 Q. And you can't remember its message, if any?

19 A. No.

20 Q. But you say in the next phrase:

21 "... we have in the past raised our concerns about

22 her safety ..."

23 A. Hm-mm.

24 Q. So at this stage then, in June, this was (a) presumably

25 not a new topic for you?

 

 

77

 

1 A. Hm-mm.

2 Q. And (b) not a new topic within the context of

3 intergovernmental discussions?

4 A. No.

5 Q. Can I just ask you to help with this. How would the

6 question of this particular lawyer's safety have fitted

7 within your remit in the justice and security section?

8 Can you explain that to us?

9 A. Well, if any -- well, clearly the safety of a solicitor

10 would be very important, because if anything happened to

11 that solicitor, it would have obvious implications for

12 the peace process, more broadly speaking.

13 The particular difficulty, as I think I made clear

14 in my statement, is that given her absence and the lack

15 of confidence she had in the RUC, it was difficult to

16 take action in response to concerns about her safety.

17 Q. So she had discussed with you, had she, that the police

18 was not a route for her in terms of protection?

19 A. Yes, there were difficulties. She had difficulties with

20 that.

21 Q. You discussed that with her?

22 A. I can't say exactly when or where, but I do -- I do have

23 a recall of her saying there was a great difficulty

24 about getting protection, because you had to go via the

25 RUC. And that is where she obviously had problematic

 

 

78

 

1 relations with them. But I couldn't specify when or

2 where that conversation happened.

3 Q. No. But it was your impression, was it, that she would

4 have been uncomfortable about accepting help from the

5 police?

6 A. Yes.

7 Q. What about the question of accepting advice from the

8 police? Did you discuss that with her?

9 A. I can't recall specifically saying, "What about advice?"

10 My sense of it was that she was not prepared or felt

11 uncomfortable initiating a process that involved the RUC

12 at the time, because she realised that it would mean

13 conversations with them, visits to the house, assessment

14 of her personal security, how she -- you know, her

15 routines and so on. So my sense was that the

16 conversation never went much further than a statement of

17 her discomfort with that, and that was a dilemma

18 obviously for us.

19 Q. Can you remember in relation to this particular incident

20 and this threat document, did she seem concerned

21 about it?

22 A. No. Like most of those things, she seemed to take them

23 in her stride, that these were the kind of things that

24 she was -- she expected to get.

25 She wasn't -- I don't recall her being particularly

 

 

79

 

1 vociferous or concerned. It was an illustration, I

2 think, again, of the kind of environment in which she

3 worked, particularly in that area.

4 Q. Can you remember how she came to show you the note in

5 the conversation you had?

6 A. No, I can't. I do not have a recall of that.

7 Q. Did she, for example, link the threat note to the case

8 which she asked about? Do you see the penultimate

9 sentence beginning:

10 "She asked about the case of ..."

11 And then there is a name redacted?

12 A. I don't -- I can't say that she made a direct connection

13 between the threat that she received and that other

14 case. My sense from the note is that, no, there wasn't

15 a connection. It was part of a general environment that

16 they were all under some threat.

17 Q. It is clear, as we saw, that these concerns on the part

18 of your government had been raised through the

19 Secretariat before. Can you remember whether this

20 particular issue of the death threat she showed you was

21 raised within the Secretariat?

22 A. I can't recall. Again, to clarify, what would happen is

23 we would have direct cases that were logged, but you

24 also had the reports circulated to the Secretariat. So

25 you would leave it to the initiative of your colleagues

 

 

80

 

1 to discuss the general flow of the information that they

2 were in receipt of.

3 Q. So it may have been something that was raised although

4 you weren't personally aware of it?

5 A. Exactly.

6 Q. Thank you. Now, very briefly, you also refer in your

7 statement -- I think this is paragraph 21 -- to the

8 question of the bullet in post, beginning on RNI-813-537

9 (displayed). And you tell us on the following page

10 about such expertise as you have in those respects, and

11 I think it comes to this: that you think it is probably

12 true -- and this is six lines down -- that you were

13 shown a bullet by her?

14 A. Yes.

15 Q. But she wasn't the only person who showed you a bullet

16 over your time as a traveller, as I understand it?

17 A. That's correct.

18 Q. Can you help us with any further detail as to time,

19 place, et cetera, in relation to this?

20 A. I have a distinct memory of her with a blue envelope,

21 opening up the blue envelope and showing me the bullet

22 inside and saying it was -- I can't remember exactly

23 what she said. I have a distinct memory of that.

24 I struggled to find out when it might have been, and

25 I think in the course of the statement, by the process

 

 

81

 

1 of giving the statement, it was probably in the

2 proximity talks, possibly the ones in Armagh City.

3 Q. Would that be in the summer of 1998?

4 A. Summer of 1998, yes.

5 Q. Thank you. And does that help you, therefore, to

6 remember where you were when she showed you the bullet?

7 In Armagh?

8 A. Possibly Armagh. I have a distinct memory of seeing

9 a blue envelope with her showing the bullet. I am not

10 sure of the venue. I would hazard a guess it may have

11 been Armagh, but it depends where we were meeting at the

12 time, because my sense of it is that we were outside --

13 when we were at the proximity talks in Armagh, the

14 building in Armagh, that we would adjourn outside.

15 Q. And did she have it in her handbag? Was she carrying it

16 in it her pocket?

17 A. I think in her handbag, but I couldn't be sure.

18 Q. Again, can you remember the circumstances in which she

19 showed it to you?

20 A. Well, in those proximity talks -- by the nature of the

21 proximity talks, Jonathan Powell, who was chairing them,

22 would have sessions with each side because both sides

23 were not meeting together. So there would be breaks in

24 between when he would have a meeting with the residents.

25 We would break and he would go off and have a meeting

 

 

82

 

1 with the Loyal orders.

2 So then there would be these breaks and pauses in

3 between in which people would take a break and walk

4 outside, possibly in that context.

5 Q. Yes.

6 A. But it wasn't a situation in which she deliberately took

7 me aside to show me something. It came up in the course

8 of the conversation was my understanding.

9 Q. Was the conversation about her safety?

10 A. I don't recall. I don't recall it being a specific

11 "come and see what I have just received". It was a more

12 general conversation, as I kind of recall it.

13 Q. Were you being asked by her to give her advice about it?

14 A. No. Again, it was used to illustrate the kind of thing

15 she had to endure.

16 Q. Did you think this was something worthy of passing up

17 the chain, as it were, through the Secretariat?

18 A. I do not have a particular recall of that. The only

19 thing I can assume is that the talks resumed and we were

20 caught up in the negotiations again on the Garvaghy

21 Road. So the moment may have passed.

22 Q. Again, can I ask you: how did she talk about it? Did

23 she seem concerned?

24 A. I don't recall it being a conversation at length.

25 I recall her -- the only distinct recall I have is her

 

 

83

 

1 opening up an envelope and showing a bullet inside, and

2 that was that. But I don't recall it being

3 a particularly pointed conversation in terms of her

4 concerns or her asking me to do something about it.

5 At that point when issues about her security or

6 threats to her had been raised, they were also taken up

7 by the British Irish Rights Watch, for example, so she

8 had a number of people who were advocating about her

9 concerns at that point.

10 Q. Certainly in paragraph 21 you say that you suspect she

11 didn't ask you to take the matter forward. Do you see

12 that?

13 A. Yes, because if she did, I would have taken it forward.

14 So that is why I can cast the conversation in those

15 terms.

16 Q. Other than these two specific examples you have given in

17 your statement, can you remember any other conversations

18 about particular or specific threats?

19 A. No.

20 Q. Now, in paragraphs 18 and 19 of your statement, you make

21 more general comments about her safety, beginning at

22 this paragraph 18 on RNI-813-537 (displayed), with the

23 comment that you did feel she had a sense that she may

24 be killed?

25 A. Yes.

 

 

84

 

1 Q. Again, can I ask you: was that based on her making that

2 comment to you?

3 A. Yes. We would have conversations about life in

4 Northern Ireland and about living in Northern Ireland,

5 and it was from those conversations that you got the

6 impression that she was -- she was clearly under threat.

7 She would often talk about the relief she felt when

8 she travelled down south or when she went to -- I think

9 it was a mobile home that she used to go to with her

10 friend and how they would talk about life in

11 Northern Ireland and particularly life in a high profile

12 position like she occupied.

13 So there were general conversations, but I always

14 had the sense from her that she felt she was exposed in

15 some way.

16 Q. These were conversations that were not prompted by

17 particular incidents, threats of that kind?

18 A. No, they would be conversations that, for example, I

19 think I recall happened over the winter of 1997/1998

20 when I had got to know her where the issue of Drumcree

21 was still on the boil.

22 Various incidents would happen. We would chat over

23 the phone, but those kind of conversations were not such

24 that I reported on them.

25 Q. So you think in the winter of 1997/1998, do you?

 

 

85

 

1 A. Hm-mm.

2 Q. Can I ask you about a later period which you also talk

3 about in your statement, a year later, which is after

4 the march in 1998; in other words, the winter of 1998 to

5 it 1999, because you deal in paragraph 57 with this

6 period. And you say in the last sentence that in a long

7 conversation -- you remember the discussion as being

8 concerning a general feeling of menace that existed at

9 the time rather than anything specific. Do you see

10 that?

11 A. What paragraph again, sorry?

12 Q. 57 at RNI-813-549 (displayed). It is the very last

13 sentence. This is very much in the context of Drumcree?

14 A. Yes.

15 Q. What I am asking you is whether the conversation you

16 have referred to earlier in which you say she gave you

17 the sense that she had that she may have been killed,

18 might have been at this time --

19 A. Yes, you are right. It was a year later, because I

20 hadn't known Rosemary that well in that earlier period.

21 Q. We will come to that in a minute. But this period was

22 a period, as I understood it from your statement, of

23 particular tension?

24 A. Yes.

25 Q. And instability?

 

 

86

 

1 A. That's right.

2 Q. And conflict in that area, wasn't it?

3 A. That's correct, because of the decision in 1998 that the

4 parade did not proceed down the Garvaghy Road. The

5 parade hadn't proceeded down the Garvaghy Road in 1998,

6 so there was a considerable kind of aftershock.

7 Q. Now, as I understand it, in paragraph 19 you attributed

8 significance to the particular area in which she lived,

9 i.e. Lurgan in the Portadown area?

10 A. Hm-mm.

11 Q. That was a particularly divided part of Northern Ireland

12 at the time, wasn't it?

13 A. Yes.

14 Q. So far as this conversation is concerned, did she seek

15 from you advice about protection at this stage?

16 A. No.

17 Q. Did she ever indicate to you that she wanted help or

18 assistance from the authorities in Northern Ireland?

19 A. No.

20 Q. She didn't refer to the Government or the NIO, for

21 example?

22 A. Not that I recall specifically. In terms of a request

23 for assistance, no.

24 Q. Can I take it that her attitude in relation to the

25 police would have been the same at all times you knew

 

 

87

 

1 her?

2 A. I think that's fair.

3 Q. So she wasn't looking for and didn't want advice from

4 them?

5 A. It was not a subject she broached in conversations

6 with me.

7 Q. Thank you. In that specific context, can we look at one

8 or two comments you make in paragraph 22, because as I

9 understand it, these are, as it were, the details or the

10 particulars of this point.

11 A. Hm-mm.

12 Q. Namely that that is where you are talking, aren't you,

13 about specific police involvement in protection, and the

14 example you give is of securing the house. Is that

15 right?

16 A. That's correct.

17 Q. And so does it follow that your impression was that she

18 would not have been interested in these sort of

19 police-based measures?

20 A. That was my distinct impression and understanding.

21 Q. She would not have wanted to involve the police, because

22 she didn't trust them not to pass on details of her

23 house?

24 A. That was my understanding.

25 Q. To whom?

 

 

88

 

1 A. Again, in a general way she would have had concerns that

2 there was -- that there may have been links between

3 individual RUC officers and Loyalist paramilitaries.

4 Q. That was something she said to you?

5 A. Not specifically, but that was my understanding of her

6 concerns, that the local RUC could not be trusted to act

7 appropriately if they were given additional information

8 about her, and bearing in mind that she regarded them as

9 hostile to her.

10 Q. The final sentence of this paragraph refers to the Key

11 Persons Protection Scheme, and you say there:

12 "This is where she had a difficulty with the

13 scheme."

14 Again, is that something you discussed with her?

15 A. I raised that point, because if she were to make

16 representations to us or ask us to pursue them more

17 vigorously with the British side, the appropriate

18 response would have been to put her into the Key Persons

19 Protection Scheme, which, as I understand it, has

20 happened on numerous occasions with Nationalists who

21 felt under threat, and so on. But in her particular

22 case, that was something she was uncomfortable with. So

23 that was the catch 22 we were in.

24 Q. So you did discuss it with her?

25 A. No, I'm thinking it is more general in the sense that

 

 

89

 

1 this is the circumstances, I understood that that was

2 her view and that, therefore, what I am saying is that

3 being her view, we couldn't take it to the next stage in

4 our conversations with the British, because we wouldn't

5 have had sanction from her to go ahead and say, "Yes, I

6 want to be part of the Key Persons Protection Scheme."

7 Q. So are you saying that if her position had been

8 otherwise, you would have been able to take this forward

9 with the British Government?

10 A. If she had a clearly articulated desire for us to take

11 it forward and that she was willing to cooperate with

12 the Key Persons Protection Scheme, yes.

13 Q. Did you ask her specifically whether she had such

14 a willingness?

15 A. I don't recall.

16 Q. What, then, were the representations that you made,

17 which you refer to in the last part of this sentence?

18 A. I am referring there to the general concerns that were

19 expressed by our side to the British side of the

20 Secretariat.

21 Q. In relation to her safety?

22 A. In relation to Rosemary Nelson and her safety.

23 Q. So you are not suggesting, are you, that the Irish side

24 made representations in relation to the scheme and

25 Rosemary Nelson to the Northern Ireland Office?

 

 

90

 

1 A. You would have to check that with the Irish side of the

2 Secretariat to see how specific those conversations

3 were.

4 Q. But did you initiate with your side of the Secretariat

5 any such representations?

6 A. Particularly in terms the Key Persons Protection Scheme,

7 not that I recall, no.

8 Q. Are you aware of any such representations having been

9 made?

10 A. Specifically to that scheme, no.

11 Q. So far as the Garvaghy Road matter is concerned, can I

12 just ask you some questions about the matter generally.

13 As I understand it, you attended some at least of

14 the proximity talks at the invitation, I think, of the

15 residents. Is that right?

16 A. I was not specifically invited. The residents made

17 representations to the Irish Government to have an Irish

18 government representative present.

19 Q. And you were that representative, as it turned out?

20 A. As it turned out.

21 Q. Yes, thank you. Looking at the matter more generally,

22 you explain in your statement in the early paragraphs

23 how this issue, the issue of marching at Drumcree,

24 became a focus of huge amounts of dissent and eventually

25 conflict and violence. Can I ask you, please: in 1997,

 

 

91

 

1 were you present at the proximity talks?

2 A. Can you specify the location?

3 Q. No, I can't. Perhaps I will ask you this question. Was

4 your first involvement with the proximity talks in 1998?

5 A. No, I probably should have tried to recall this before

6 I got here, but I think it is a fairly safe assumption

7 that I was the official both in 1997 and 1998 who was

8 present at the proximity talks.

9 Q. Thank you. In your statement in the sections from

10 paragraph 10 onwards, you describe the importance of

11 these marches in political terms. This is RNI-813-535

12 (displayed).

13 Now, am I right in thinking that the importance that

14 you there set out for us was something recognised and

15 understood by the Irish Government at the time?

16 A. Yes, absolutely.

17 Q. And they were events and disputes of great importance to

18 your government as well, were they not?

19 A. They were.

20 Q. Because the dissent which came to be associated with

21 them posed, didn't it, a threat to the peace process

22 itself?

23 A. One has to be careful of making a direct connection

24 between the instability of the parades and the peace

25 process itself.

 

 

92

 

1 If you mean by the peace process a return to

2 paramilitary and violence, I would say again one would

3 have to be very, very careful. Possibly in regards to

4 the specific week of Garvaghy Road, both in 1997 and

5 1998, there was always that potential that it could get

6 out of hand.

7 If you talk about the generality of the peace

8 process, there was a fear that the parades issue could

9 essentially sour the atmosphere and make progress very,

10 very difficult. At this time nobody could be absolutely

11 sure that the peace process had been locked in and there

12 was no doubt that the parades issue was seen to be

13 a particularly vulnerable -- a particularly threatening

14 issue to the overall stability. But how it would play

15 out was very difficult to say.

16 Q. Yes. So far as the parade in 1998 is concerned, that

17 took place, didn't it, after the Good Friday Agreement?

18 A. Yes.

19 Q. And it became, didn't it -- the whole issue of Drumcree,

20 at that stage -- a focus for those who dissented from

21 the principles which were enshrined in that Agreement?

22 A. Again, I think one has to be careful to disaggregate

23 responses to the Garvaghy Road issue. The 1998

24 adjudication by the Parades Commission had set down

25 a judgment, and the Nationalist community, as I recall,

 

 

93

 

1 were waiting to see whether the authorities would

2 enforce that judgment against what was expected to be

3 considerable Loyalist pressure to the contrary.

4 So there was -- yes, the parade in 1998 was

5 freighted with a lot of significance, and particular

6 significance in terms of the Agreement and its

7 principles.

8 Q. Where you refer in paragraph 11 and 12 to Loyalists and,

9 in particular in 12, to paramilitaries -- this is on the

10 same page -- did the conflict around Drumcree in your

11 view attract paramilitaries of that kind?

12 A. Yes.

13 Q. And were there, as it were, opposite numbers also

14 attracted to the dispute?

15 A. Yes.

16 Q. Presumably that had within it, therefore, the seeds of

17 potential violence?

18 A. Yes.

19 Q. And you say in paragraph 16 of your statement that this

20 area of Northern Ireland was described by a journalist

21 as a "hate-filled hell hole"?

22 A. Yes.

23 Q. It was into this dispute and this area that

24 Rosemary Nelson's work with the Residents Coalition took

25 her, wasn't it?

 

 

94

 

1 A. Yes.

2 Q. And you suggest in your statement at paragraph 9 -- and

3 this is at page RNI-813-535 (displayed) again -- that

4 she was clearly associated by some with the Residents

5 Coalition?

6 A. Yes.

7 Q. Can I ask you, please: what was that view of yours based

8 upon?

9 A. The fact that she was part of the delegation that was

10 clearly visible in the media and the fact that she was

11 their legal adviser.

12 Q. Now, is it right that you also had the impression that

13 some at least did not make a distinction between her as

14 a legal adviser and her as a member of the Coalition?

15 A. Yes.

16 Q. In other words, that the fact that she was there to

17 provide legal advice may well have been overlooked by

18 some?

19 A. I think that was a reasonable assumption.

20 Q. Yes. Now, in your experience of dealing with her in

21 this connection, did she appear to be a member of the

22 Coalition or its legal adviser?

23 A. I was always very struck by the fact that she was very

24 professional in the way that she acquitted herself. She

25 didn't engage in any of the conversations about strategy

 

 

95

 

1 or tactics that I was aware of. She was very much on

2 march(?), called in to give political advice. Her main

3 function, as I understood it, was to proceed with

4 applications for judicial review, but she, certainly in

5 my presence and conversations I had with her, very much

6 acquitted herself as a legal adviser to the group rather

7 than a member of the group, sharing its agenda.

8 Q. So based on your experience certainly in the 1998 case,

9 she was not, as it were, part of the negotiating team;

10 she was an adviser on the side providing advice as and

11 when required?

12 A. Absolutely.

13 Q. Thank you. As we know, after the 1998 season there was

14 an Orange Order protest which continued in the area of

15 Drumcree in fact for years thereafter. And as I

16 understand it, it is during this period, after the

17 march, that, as you explained earlier, you discussed

18 with her the general feeling of menace that existed?

19 A. That's correct.

20 Q. This is paragraph 57, again, on RNI-813-549 (displayed).

21 Now, is that question of the feeling of menace in that

22 area something in the conversation that she raised with

23 you or was it something you were already aware of?

24 A. I was aware of it myself from travelling in the area.

25 Q. But did she --

 

 

96

 

1 A. But it would -- yes, I think it would have come up

2 more -- it is very difficult to say in a conversation as

3 it goes back and forth who raises it, but it was a theme

4 in the conversations. But I would take it that she was

5 informing me, because my job was not necessarily to

6 inform her about her area. She was informing me about

7 her area.

8 Q. Did you regard her at this point, 1998 to 1999, as being

9 an obvious target for Loyalist terrorists?

10 A. If you had asked me at the time would I see her as top

11 of the list, I would have said no. I would have put the

12 residents themselves higher up that list, although she

13 was clearly vulnerable because of the association with

14 her.

15 Q. This is paragraph 82 of your statement at RNI-813-557

16 (displayed). Do you see the second sentence refers to

17 Mr Mac Cionnaith and Mr Duffy in this connection, and

18 then in the next sentence, you say:

19 "I would have included Rosemary Nelson within these

20 had she still been alive at that time."

21 So this is April 1999?

22 A. Hm-mm.

23 Q. "And I think the British knew we had concerns about

24 Rosemary Nelson's safety, given our comment and those of

25 other organisations."

 

 

97

 

1 A. Hm-mm.

2 Q. So at this time, or at the time I was talking about,

3 which is after the march, 1998 through to 1999, had you

4 been asked that question, would you have included her

5 name?

6 A. I would have ranked her after Breandan Mac Cionnaith and

7 Joe Duffy, but she certainly would have been -- if you

8 asked me to name the top potential targets, yes, she

9 would have been in that list but as a number three.

10 Q. Did you raise these concerns with the other side during

11 this period; in other words, the autumn of 1998 through

12 to the early part of 1999?

13 A. Not that I recall, because it wasn't a distinct

14 threat -- if you were asked at the time, who would you

15 have said? But I don't recall it being -- I know that

16 there was some material being circulated in Portadown at

17 the time and I think that was discussed in the

18 Secretariat. But, again, there was an awful lot of flow

19 of information between us as officials, so the -- it was

20 up to the Secretariat to make judgment calls as to when

21 and how often they raised these issues.

22 Q. Earlier in your statement at paragraph 55, you refer in

23 the context of the Drumcree and Garvaghy Road to the

24 fact there may, as you put it, have been some discussion

25 about the safety of Breandan Mac Cionnaith and

 

 

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1 Joe Duffy. They were the leaders of the Coalition, were

2 they not?

3 A. That's correct.

4 Q. And presumably in that context you would have ranked

5 Rosemary Nelson on the basis that she was their legal

6 adviser, again, beneath those two names?

7 A. That's correct.

8 Q. But I think what you are telling us is that you don't

9 remember the issue involving either Mr Mac Cionnaith,

10 Mr Joe Duffy or Rosemary Nelson coming up specifically

11 in the course of the proximity talks in 1998?

12 A. That's right. There were concerns about the travel

13 arrangements between their homes and the proximity

14 talks. That was certainly an issue that there might be

15 some opportunistic attacks, but nothing in terms of a

16 more specific plot.

17 Q. As I understand it, the last occasion on which you met

18 Rosemary Nelson was in February 1999 at a policing

19 conference. Is that right? It is paragraph 78 at

20 RNI-813-556 (displayed).

21 A. Yes.

22 Q. Would it help to show you the document?

23 A. No, that's fine.

24 Q. You refer to a meeting with Rosemary Nelson at

25 a conference in February 1999, organised by CAJ.

 

 

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1 A. Hm-mm.

2 Q. It looks as though there was a discussion between the

3 two of you and, indeed, others at that time?

4 A. Hm-mm.

5 Q. Can I ask you whether this question of her safety came

6 up in the course of that conversation, that you can

7 remember?

8 A. I don't think it did.

9 Q. No. So is it right then that the last occasion on which

10 that question, albeit in the general way you have

11 described, came up would have been in the latter part of

12 1998 in the long conversation you mentioned?

13 A. In the winter of 1998/1999.

14 Q. In the winter, yes. Thank you.

15 A. That's correct.

16 Q. Now, can you look, please, at RNI-835-203 (displayed).

17 This is a matter you deal with in your statement, and as

18 I understand it, this followed the meeting at

19 Downing Street: the Coalition present, Mr Mac Cionnaith

20 in the lead and Rosemary Nelson also of their number?

21 A. Hm-mm.

22 Q. Now, if we could just turn over the page, please, to

23 RNI-813-204 (displayed), you see at paragraph 5 you had

24 a conversation also at that time with Rosemary Nelson

25 herself?

 

 

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1 A. Hm-mm.

2 Q. As I understand it from your statement, it was

3 relatively unusual -- is this right? -- for you to be

4 getting information about the Coalition's activities

5 from her?

6 A. That's correct.

7 Q. Your primary source being Mr Mac Cionnaith. Is that

8 right?

9 A. That's correct.

10 Q. Can you remember why it was that you spoke to her on

11 this particular occasion?

12 A. The significance of the meeting at Downing Street. It

13 was interesting to get another perspective on it.

14 Q. And looking at the note as a whole, RNI-813-203 and

15 RNI-813-204 (displayed), it sets out, does it, the

16 salient points of what had been discussed at the meeting

17 as they were explained to you?

18 A. Yes.

19 Q. Subject, of course, to the redactions?

20 A. Hm-mm.

21 Q. Thank you. Now, the final matter I wanted to ask you

22 about is in relation to the murder investigation. You

23 deal with this from paragraph 64 of your statement, but

24 I want to only focus on a few points.

25 I think it is right, isn't it, that you had a number

 

 

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1 of meetings with the senior officers in the murder

2 investigation?

3 A. At least one that I recall directly.

4 Q. In paragraph 68 at RNI-813-553 (displayed), you are

5 referring, I believe, to a meeting with Mr Port, who was

6 then the officer in overall command?

7 A. Yes.

8 Q. That was a meeting which was in sense unprecedented,

9 wasn't it?

10 A. Yes, it was unusual.

11 Q. And the fact that representatives of a foreign

12 government were able to discuss and question the senior

13 officer in a murder investigation is not something that

14 had occurred in this context before, had it?

15 A. Not that I was aware of.

16 Q. No. But after what appeared to have been initial

17 concerns about that, you had the meeting. And we can

18 look at the note of it in due course.

19 Can I ask you, though, about a number of points you

20 make in relation to the investigation.

21 First of all, in paragraph 64 -- this is RNI-813-552

22 (displayed). You are dealing with the independent

23 element of the investigation, and you say in the first

24 sentence:

25 "We did not have confidence in the RUC carrying out

 

 

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1 an independent investigation if they were solely doing

2 that investigation."

3 Do you see that?

4 A. Yes.

5 Q. Now, the situation, as you are aware, I am sure, was

6 that there was, in the case of Mr Port and his deputies,

7 outside involvement in the investigation leading it?

8 A. Hm-mm.

9 Q. And also that there were a substantial number of

10 officers from other police forces who were involved on

11 the ground, as it were, in the investigation?

12 A. That's correct.

13 Q. As I understand the position you adopted at any rate

14 in April, it was that whilst you accepted there had to

15 be some RUC involvement, you thought it was unacceptable

16 that RUC officers should be involved in the collusion

17 aspect of the investigation. Is that a fair summary?

18 A. Yes.

19 Q. And can we look, please, for confirmation of that at

20 RNI-833-027 (displayed)? This is a note of your -- I

21 should say it begins on RNI-813-023 (displayed). It is

22 a document you refer to in your statement. It is

23 a meeting between officials on the two sides.

24 Could we look at RNI-813-023, please (displayed).

25 You see in the first paragraph that you were present.

 

 

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1 A. Hm-mm.

2 Q. But moving on to paragraph 18 on RNI-813-027

3 (displayed), you are noted there as saying:

4 "While they ..."

5 The Irish Government:

6 "... were not arguing against RUC involvement, it

7 was clearly unacceptable that RUC officers should be

8 part of the team investigating the allegations of

9 collusion."

10 So as I understand it, at this stage at any rate,

11 that was the concern that the Irish side was expressing?

12 A. Yes.

13 Q. Now, so far as your statement goes, in paragraph 65 you

14 say in the last sentence that you believed that the

15 investigation:

16 "... had to have sequestered areas with their own

17 teams which could operate independently of the RUC."

18 Do you see that?

19 A. Yes.

20 Q. And presumably where, as was the case, the collusion

21 investigation was being conducted quite independently,

22 that would have met your point, wouldn't it?

23 A. Yes.

24 Q. Why is it, therefore, that you say:

25 "We just never had the sense from Port that this was

 

 

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1 the case"?

2 A. We didn't believe it was the case.

3 Q. You didn't believe him when he told you that they were

4 non-RUC officers?

5 A. No, no, it wasn't so much that. It was that we were

6 never -- I don't think he sufficiently articulated the

7 case that in procedural terms there was a Chinese wall.

8 It is not just about having separate offices. It is

9 about having discrete and protected areas of

10 information, information flow and information retention

11 that would not be subject to -- or under the control of

12 the RUC, that it had to be absolutely very tightly

13 controlled in those terms. The reason being that if

14 you -- if collusion was one of the allegations

15 surrounding the case, and if you wanted to encourage

16 Nationalist residents, for example, in the area to talk

17 about the case, they would be -- they would need the

18 assurance that they were talking to independent police

19 officers and that the views they expressed to those

20 independent police officers wouldn't in some way leach

21 across those lines to become known to the local police

22 officers.

23 So while he did affirm, obviously, that there were

24 separate police officers involved, we never got

25 sufficient confirmation of how those procedures were put

 

 

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1 in place.

2 Q. So this was a concern, was it, about the amount of

3 information you were given, rather than about what may

4 have been happening on the ground?

5 A. Yes. We just never got sufficient detail about how they

6 were organising themselves.

7 Q. He gave you a reasonable amount of detail at your

8 meeting in July, didn't he? If we look at that, at

9 RNI-833-001 (displayed), this is the note of this

10 unprecedented meeting.

11 Can I ask you, under the heading "Meeting with

12 Colin Port, draft report to Secretary Gallagher", can

13 you help us: who was that individual?

14 A. Dermot Gallagher was the Secretary General of the

15 Department of Foreign Affairs and is currently in that

16 job as well.

17 Q. So he was the most senior --

18 A. He was the top official in the Department of Foreign

19 Affairs.

20 Q. You set out a report of what had happened. Do you see

21 in paragraph --

22 A. Could I correct that? Secretary Gallagher, I think, at

23 the time was head of the division, the Anglo-Irish

24 Division, rather than the department, sorry.

25 Q. And he has since been promoted even higher?

 

 

106

 

1 A. Even higher.

2 Q. The point we were looking at is detail. If you look,

3 for example, at paragraphs 8 and following on the next

4 page, RNI-813-002 (displayed) -- and obviously there are

5 many other paragraphs of information and discussion

6 recorded -- he was setting out there for you how his

7 investigation was in fact structured on the ground,

8 wasn't he?

9 A. Yes.

10 Q. And it follows from the comments you made earlier,

11 doesn't it, that this was information of a kind that you

12 had never received before in relation to any

13 Northern Ireland police investigation?

14 A. Not in my experience.

15 Q. No. So far as Mr Port's own approach is concerned, you

16 say in paragraph 73 of the statement -- and this is

17 a paragraph that begins at RNI-813-554 (displayed) and

18 turns on to the next page, RNI-813-555 (displayed) --

19 you say there was a general feeling, at the top the

20 RNI-813-555:

21 "... that Port did not have a full awareness of the

22 environment he was operating in. We, therefore, had

23 this concern that if there was collusion in the murder

24 itself, there may be collusion in the investigation."

25 Now, first of all, what do you mean by that

 

 

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1 expression "there may be collusion in the

2 investigation"?

3 A. That the investigation would not be properly carried

4 out.

5 Q. By Mr Port?

6 A. Well, not by Port himself, but by RUC officers and that

7 he may not be sufficiently alert to this as

8 a possibility.

9 Q. But did you ever have any grounds for believing that

10 that was in fact the case?

11 A. No, but the point really is that if there is a -- if

12 there is a risk of that, as we believed there might well

13 have been, you had to take the necessary precautions,

14 and we were not convinced that those had been taken.

15 That doesn't mean that they weren't taken, we were

16 just simply never assured that they were.

17 Q. Yes. So far as Mr Port's own awareness of the

18 environment he was operating in, the earlier part of

19 this sentence -- can we look back, please, at

20 RNI-833-002 (displayed), the note of the meeting with

21 him which we looked at earlier. Paragraph 5. That was

22 the impression recorded from the meeting.

23 A. Hm-mm.

24 Q. That he was:

25 "... determined not to be obstructed in his

 

 

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1 investigation whether by the RUC or anyone else."

2 Does this note perhaps rather more accurately

3 reflect the Government's attitude as at that stage?

4 A. Can you just go back to the fuller note itself, and the

5 first page?

6 Q. The first page, please, RNI-813-001 (displayed).

7 A. Okay. These are judgments. I would have been more

8 sceptical.

9 Q. This is a judgment made obviously much nearer the time?

10 A. Yes.

11 Q. In 1999, as opposed to 2007?

12 A. Hm-mm.

13 Q. Is it safer to rely on that judgment?

14 A. I would still retain my own judgment that until I was

15 assured to the contrary, one would have to have a degree

16 of reserve.

17 Q. But you accept, do you, that that judgment is not, at

18 least not obviously, reflected in paragraph 5?

19 A. We take different views of things.

20 Q. Now, so far as paragraph 76 is concerned, it is a small

21 point, but you say you don't believe -- this is

22 RNI-813-555 (displayed) -- that you met with Mr Provoost

23 after he took over from Mr Port?

24 A. No, I don't recall.

25 Q. Can I ask you whether you left your job in 1999, as I

 

 

109

 

1 understand it?

2 A. Correct.

3 Q. Is that right?

4 A. Hm-mm.

5 Q. Do you have any knowledge of meetings with may have

6 taken place after you left the job?

7 A. No.

8 Q. No. So it is quite possible, isn't it, that such

9 meetings did take place?

10 A. Absolutely. I went to New York, different job,

11 different location.

12 Q. Now, the final matter at this point of the story I want

13 to take you to is raised by you in paragraph 85, and it

14 is the note of the meeting with the other side at the

15 Secretariat, which we looked at earlier, and it is

16 RNI-833-023 (displayed). And there is a particular

17 aspect of this I would like to ask you about.

18 The note, so far as we are concerned, begins on

19 RNI-813-026 (displayed). I think the first relevant

20 reference comes in the second paragraph under

21 paragraph 14. Do you see? Beginning with "Watkins..."?

22 A. Hm-mm.

23 Q. Now, Mr Watkins is recorded here as offering no further

24 details:

25 "He said he could offer no further details for the

 

 

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1 moment (citing Port's operational independence) but

2 undertook to get answers to our questions as a matter of

3 urgency."

4 Then can I ask you to look over the page to

5 RNI-813-027 (displayed):

6 "An Irish official asked Watkins for a sense of how

7 the investigation was progressing. The response was

8 that it was not normal for the police to report on such

9 matters and that the NIO, therefore, could not help us

10 on this."

11 Do you see those references?

12 A. That's right, yes.

13 Q. In your statement, going back to that at RNI-813-558

14 (displayed), you say in the last sentence:

15 "David Watkins was well able to turn round and say

16 that this is a police investigation to 'we don't know'

17 although we would not necessarily believe him."

18 Presumably you were aware, weren't you, that in

19 Northern Ireland the police operate separately from the

20 executive?

21 A. Yes.

22 Q. And presumably there is a similar system in the Republic

23 of Ireland as well?

24 A. Yes.

25 Q. And so that brings with it, doesn't it, certain limits

 

 

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1 to the information which government departments are able

2 to obtain from the police in relation to ongoing

3 investigations?

4 A. Yes.

5 Q. So why was it, can I ask you, that you didn't take at

6 their face value these comments about such limits made

7 in that meeting?

8 A. Well, Watkins was always very professional to deal with.

9 But we were, as I said before, in that grey area. The

10 1985 Agreement specified areas politically -- it was

11 essentially a political agreement -- in which we were

12 meant to cooperate and consult. It didn't analyse very

13 deeply the complexity that that would put officials into

14 by way of exchanging information. And so this would be

15 a very common example of where one had to respect

16 certain lines. But as in all of these cases, there can

17 be an element of trading across the table and you can --

18 you have ways of conveying information, and sometimes

19 Watkins was more forthcoming than at others.

20 Q. But is this another case of where your view was it was

21 right to put the question but you did so in no

22 particular expectation of getting an answer?

23 A. As in most of those conversations, you are -- the answer

24 you would get was often contingent on the amount of

25 information you had about the forthcoming answer.

 

 

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1 Q. So it all depended on the nature of the question?

2 A. The more information you had, the more likely you were

3 to get information affirming what you knew.

4 Q. Thank you very much. Now, Mr McKee, those are all the

5 questions I have. Is there any other matter that we

6 haven't covered that you would like to raise with the

7 Inquiry panel at this stage?

8 A. No, I think that is fine.

9 Q. Thank you very much.

10 THE CHAIRMAN: Mr McKee, we are very grateful to you for

11 travelling north again and coming to give evidence to us

12 and subjecting yourself to detailed questioning from

13 counsel on the Inquiry. Thank you very much.

14 A. Thank you.

15 THE CHAIRMAN: We will resume at 1.00 on Monday week.

16 (12.50 pm)

17 (The Inquiry adjourned until 1.00 pm on Monday,

18 2nd June 2008)

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MR EAMONN MCKEE (sworn) .......................... 19
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Questions by MR PHILLIPS ..................... 19
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