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Hearing: 1st May 2008, day 13

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ROSEMARY NELSON

PUBLIC INQUIRY

 

 

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


on Thursday, 1st May 2008
commencing at 10.15 am


Day 13

 

 

 

 

 

 

 


 

1 Thursday, 1st May 2008

2 (10.15 am)

3 Opening submissions by MR DONALDSON (continued)

4 THE CHAIRMAN: Yes, Mr Donaldson.

5 MR DONALDSON: Thank you, sir. Before I begin, sir, I

6 should like to point out that in fact I may overrun my

7 allotted span by a little, and I hope the Inquiry will

8 indulge me by giving me a little extra time because

9 obviously we have more issues to deal with. I promise I

10 will not be very much over the time.

11 THE CHAIRMAN: Certainly. Thank you.

12 MR DONALDSON: I was about to begin today by referring to

13 the Cumaraswamy report, but before I do, I should just

14 like to get something else out of the way and that

15 concerns the allegations made by Rosemary Nelson and

16 others that she had been assaulted at Garvaghy Road.

17 Now, you will recollect that in fact there were two

18 important matters which it is stated affected the

19 relationship between Rosemary Nelson and the RUC, and

20 those were the matters concerning the murders in Lurgan,

21 and especially the police murders in which Mr Duffy was

22 allegedly concerned, and secondly, the affairs at

23 Garvaghy Road which were prominent at that time.

24 The most significant feature of Garvaghy Road were

25 the allegations of assault by Rosemary Nelson against

 

 

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1 the police. Now, that has been emphasised as being of

2 very great importance and I am sure it is, but in

3 relation to the evidence of that, it is just quite

4 impossible to say where the truth really lies.

5 That would be a matter for the Inquiry, but I just

6 mention it for two reasons: firstly, there were a number

7 of witnesses who, it was stated, had witnessed or were

8 in a position to witness the incident or the incidents

9 when the assaults occurred. And we note that those

10 persons, some of them, when interviewed apparently had

11 not seen any assaults and I think some of those persons

12 are not being called as witnesses.

13 The second matter in that regard I would like to

14 mention is that it was stated in some of the documents

15 that Rosemary Nelson was bruised from head to toe, that

16 she suffered very considerable bruising. And a matter

17 you will probably want to consider, sir, you and your

18 colleagues, is the fact that there doesn't appear to be

19 any medical evidence adduced in this regard.

20 But those are the only two comments I make, because

21 obviously it will be very much a matter for the Inquiry

22 to consider carefully all of the evidence and see

23 whether or not those allegations are sustained.

24 Now, if I might come back to the Cumaraswamy Report,

25 which in fact has been mentioned quite a lot, now. It

 

 

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1 is understandable that the views of such a distinguished

2 person, holding high office, should receive careful

3 attention. We would, however, urge the Inquiry to be

4 cautious about some of the views expressed or

5 conclusions reached by Mr Cumaraswamy because of the

6 extent to which reliance has been placed by him on

7 information provided by other people and especially from

8 NGOs.

9 I want to refer, if I may -- and I hope, again, our

10 technology -- and I am not very used to this -- could

11 bring up RNI-803-197, please? (displayed) In

12 particular, I would refer to paragraph 55, which I will

13 read. Could that be highlighted? Thank you:

14 "I have been referred to paragraph 38 of my final

15 report. I still stand by what I said in the report.

16 Having gone through all of the materials that were

17 provided to me and after having listened to the oral

18 statements of the solicitors concerned, it would not

19 have been appropriate for me to be wishy washy in my

20 language. As a Special Rapporteur, I have to be firm

21 about my findings and I am confident that the

22 information on which I based my comments in this

23 paragraph was correct. However, Special Rapporteurs,

24 and indeed the Commission, is not a court of law and we

25 do not test the materials which are provided to us. We

 

 

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1 do not take evidence under oath."

2 Sir, we would observe that that in fact is quite an

3 important comment, because a Special Rapporteur is

4 acknowledging the limitation of his own fact-finding

5 mission. He continues:

6 "As a Special Rapporteur, I am an international

7 monitor, and faced with the evidence of harassment and

8 intimidation it was impossible for me to come to

9 a different conclusion."

10 Now, lawyers will see the language of that is not

11 particularly convincing:

12 "I was convinced that there was truth to the

13 allegations that I heard. The fact that changes were

14 subsequently made within the RUC, for example, audio and

15 visual recording of interviews of detainees at holding

16 centres and the establishment of the Police Ombudsman,

17 were vindication of what I had said. If it wasn't for

18 international exposure such changes may not have been

19 made."

20 In relation to those particular changes, it's my

21 understanding -- and I think the Inquiry may well find

22 this -- that those changes were underway anyway

23 regardless of anything to do with the Special

24 Rapporteur.

25 I want to just continue with that report, if I could

 

 

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1 go, please, to RNI-803-186 (displayed). That is

2 paragraph 10. Thank you. Now, I will read this again.

3 He says:

4 "I was of the opinion that the modus operandi of

5 organisations such as BIRW, CAJ and LCHR was sound. I

6 had many discussions with their representatives and I had

7 considered in detail the methodology that they applied

8 for their reports and the information that they supplied

9 to me. They were not opinionated reports and they were

10 very factual. I had faith in the information that they

11 provided to me as a good basis for undertaking the

12 Mission in October 1997. I could see that they were

13 themselves exchanging notes on the situation on

14 a regular basis and working together where possible. My

15 overall impression was that these were people who were

16 genuinely concerned about the way in which defence

17 lawyers were being treated by the authorities and that

18 they would not give me misleading information. These

19 organisations gave me assistance when I asked for more

20 information. That said, I do not doubt that the reports

21 were coming from a certain perspective on the basis that

22 they were working closely with those who were being

23 harassed and intimidated. However, I thought that they

24 were generally providing me with well researched

25 information, and it was extremely important to me to

 

 

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1 have this information as they were also on the ground."

2 Now, the observation I would make about that is that

3 it does emphasise the importance of this Inquiry

4 considering the credibility and provenance of the

5 information being provided by these organisations, who

6 I say -- and I don't mean this unkindly -- had an axe to

7 grind.

8 Could we now go, please, to RNI-803-194 (displayed),

9 paragraph 42. Could that be highlighted, please. I

10 will read this:

11 "I have been asked about certain paragraphs of this

12 draft report. In connection with paragraph 15 of my

13 draft 1997 report, I can confirm that the material

14 provided to me originated from BIRW and various other

15 NGOs. I would suggest that it would be useful to obtain

16 a copy of the letter sent to me by Jane Winter in or

17 around May to August 1994, which is the first time that

18 I received any information from her. I do not have

19 a copy."

20 And neither do we. Could I now go to a reference at

21 RNI-110-006, please (displayed). That is letter from

22 British Irish Rights Watch and you will note, sir, that

23 it is addressed to Mr Cumaraswamy. Could that be

24 highlighted, please? Yes. I will just read that

25 quickly:

 

 

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1 "The solicitor I mentioned has recently had more

2 clients than usual arrested under emergency laws and

3 taken to Gough Barracks. RUC detectives there have made

4 death threats against her that have become increasingly

5 more violent. They have also accused her of active

6 involvement in the IRA. The reason for these threats

7 appears to be the fact that she represented a client who

8 was acquitted on appeal."

9 That is obviously a reference to Mr Duffy:

10 "It was a case in which there were indications of

11 state collusion, in that a leading Loyalist gave

12 evidence against her client and the Crown attempted to

13 disguise his identity. This was overruled by the court,

14 and when he testified he denied all links with

15 paramilitaries. He was subsequently arrested for gun

16 running for the Loyalists. Her client had been an

17 eye-witness of a murder that was almost certainly

18 carried out with state collusion, and it appears that he

19 was set up for the prosecution which ultimately resulted

20 in his acquittal."

21 Just taking that, that is the quality of some of the

22 material which was being fed to Mr Cumaraswamy, and I

23 don't think I need comment really very much on that

24 because its imperfections are obvious, and indeed you

25 will hear later, and in your enquiry I think you will

 

 

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1 discover, that some of this is not only extremely

2 opinionated but it is also factually incorrect. And it

3 was on the basis, we say, of material like this that

4 Mr Cumaraswamy was basing some of his opinions.

5 I am not saying that -- some of the information he

6 received I am sure was quite credible, but this is some

7 of the material that he was getting and obviously one

8 can see how opinionated it is. And I think you will

9 also find later -- and I am not going to refer to all of

10 the correspondence coming from Jane Winter of British

11 Irish Rights Watch -- but some of it was extreme in its

12 content and in its opinions.

13 So we say this letter illustrates and is an example

14 of the kind of information propagated by this

15 organisation and indeed by some other organisations upon

16 which Mr Cumaraswamy relied.

17 You will see that there is a reference in that to

18 the Lyness murder, and it is perhaps, as I indicated

19 yesterday, a further reason why the Inquiry may wish to

20 look at it just a little more closely.

21 Now, in this context -- and I think it has been

22 pointed out, quite rightly, by Mr Phillips -- some of

23 the material is rather disjointed and taken perhaps not

24 necessarily in the correct context, but I will introduce

25 it here with that caveat.

 

 

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1 The first matter I would like to reveal, the

2 reference is RNI-113-029.500, please (displayed).

3 Now, this is a letter. It is not dated and it is

4 addressed to Mo Mowlam and Jack Strand -- I think that

5 should be Jack Straw. Now, one can look at this. I am

6 not going to read the whole letter but could we

7 highlight the last two paragraphs, please, which I will

8 read:

9 "This is both a labour of love and anger at the

10 juryless Diplock court system and the RUC, both stacked

11 heavily against the Catholic community. Our work

12 consists of lobbying appropriate public officials,

13 publicising and acting as observers in the courts and

14 consultants to solicitors and barristers. This is all

15 done on a voluntary basis. Most of us are hard-working

16 professionals."

17 I just pause there for a moment. The reference, for

18 example, in a pejorative sense to the juryless Diplock

19 court system. One will find often criticisms of it and

20 indeed criticisms pursued by Mr Cumaraswamy, which we

21 say fail to acknowledge the system in Northern Ireland

22 which prevailed at that time, and how well the Diplock

23 court system worked and the justice of it. And indeed

24 one will also see criticisms of the judiciary, and

25 I believe it was Jean Forest also who said in effect

 

 

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1 that they came in order to attend the courts to make

2 sure -- and I think her words were "that the judges

3 wouldn't try anything on".

4 Now, I am sure the judiciary will be charmed by

5 comments like that and it does in fact indicate the

6 quality of those sort of comments.

7 Let us take the next paragraph:

8 "I pull no punches with you when I tell you that

9 after years of dealing with the situation of

10 Colin Duffy, I say without hesitation that the RUC in

11 Lurgan have targeted him since 1990 without let-up.

12 This also applies to his solicitor, Rosemary Nelson,

13 whom they have threatened with the same fate as

14 Pat Finucane. Having failed to murder Colin Duffy in

15 1990, this is the second miscarriage of justice:

16 imprisonment directed at him and his family within three

17 years."

18 I think this is a reference in fact immediately

19 after his arrest for the Lurgan police murders; there is

20 this campaign mounted, a strong campaign is mounted in

21 order to have Mr Duffy released and not charged.

22 Could we turn, please, to the next reference, which

23 is a letter dated 19th September 1997. It is

24 RNI-113-033-500, please (displayed).

25 This is a letter from the police division to

 

 

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1 Mrs Jean Forest in response to some correspondence.

2 Could we have that enlarged, please? Thank you. Now, I

3 am not going to read all this. You will see that the

4 second paragraph relates to the criminal proceedings

5 relating to the Duffy case and the detention, and then

6 at the bottom of the page, I will read the final

7 paragraph:

8 "The other matter you raised was about the alleged

9 threats made to Mrs Nelson by a detective at Gough

10 police station. A complaint about this matter was made

11 to the ICPC. I think it is useful to detail the efforts

12 which have been made to expedite proceedings."

13 Could we have the next page, RNI-113-033.501 please (displayed),

14 could that be enlarged? Thank you.

15 Now, I am not going to read this but you will see,

16 sir, that in fact this sets out in, we think, quite

17 accurate detail the attempts made to investigate some of

18 the complaints and that there was little in the way of

19 response. Could we just have the rest of the letter,

20 please, and enlarge it, the bottom part? Could we have

21 the last two paragraphs enlarged? Thank you very much:

22 "Mrs Nelson has also left unanswered a request for

23 permission to be given to interview her client,

24 Colin Duffy, and no other witnesses have been

25 identified. Unfortunately, due to Mrs Nelson's

 

 

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1 non-cooperation it will not be possible to bring the

2 investigation to its conclusion and it is, therefore,

3 highly likely that the complaint will be dispensed with

4 under RUC complaints regulations. This is a most

5 unsatisfactory outcome from everyone's point of view."

6 Now, there is a note at the bottom of the letter.

7 Could we have it enlarged, the handwritten note, please?

8 It would appear that this letter -- this is a note on

9 the letter written, I think, by Jane Winter who received

10 the letter, and she says:

11 "This makes you look irresponsible?? That this

12 letter has gone ..."

13 Sorry, this is Jean Forest. I made a mistake. This

14 is a Jean Forest letter. Just give me a moment, please.

15 (Pause)

16 Yes, I wasn't able quite to read it myself, but

17 someone else has done it for me. I will just read this

18 again:

19 "Rosemary, this makes you look irresponsible??

20 I bet this letter has gone out to everyone who has

21 written the Northern Ireland Office. What is the

22 response? It calls for one."

23 We don't know what became of that but it looks as

24 though this was perhaps sent to Rosemary Nelson. Thank

25 you.

 

 

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1 Now, could we have, please, RNI-103-009.516

2 (displayed), and could we enlarge -- this is a letter

3 from the Lawyers Alliance for Justice in Ireland, or

4 rather -- I am not sure to whom it was addressed, but it

5 is a call for the restructuring of the force. And of

6 course one can see that I think this comes under the

7 auspices of Edmund Lynch. Could we enlarge the final

8 paragraph in the letter, please, of the first page?

9 Now, I will read this:

10 "The Alliance national coordinator, Edmund D~Lynch,

11 issued the following statement:

12 "The Alliance report presents a shocking picture of

13 a security force run amok. The frequency, severity and

14 notoriety of attacks by well-armed members of the RUC

15 upon unarmed, unresisting and peaceful citizens leads to

16 the inescapable conclusion that RUC violence is

17 sanctioned by command personnel. We are not presented

18 with the case of a few rotten apples potentially

19 spoiling the barrel. Rather, the entire orchard has

20 been blighted. Immediate remedial steps must be taken

21 to rein in the RUC campaign of abuse, intimidation and

22 violence. A complete restructuring of this force is

23 required. The Alliance makes the following urgent

24 recommendations ..."

25 Could we have the next page,RNI-103-009.517 please. Now, I am not

 

 

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1 going to read all of these out, but in effect you will

2 see -- could it be enlarged a little, please? Thank

3 you. Yes. It called, among other things, for the

4 removal of the Chief Constable, the termination of

5 Special Branch, the RUC should be disbanded, the Diplock

6 system should be dissolved, et cetera.

7 We draw attention to this letter in this context as

8 showing the extravagance, the almost outrageous

9 hyperbole contained in this kind of correspondence by

10 this organisation, and we suggest, sir, with respect,

11 that you and your colleagues will want to consider what

12 credence you can attach to this kind of material which

13 in fact is so extreme in its comments. One gets

14 a picture of armed police officers battering women and

15 children, which is just out of the ordinary and it is

16 totally out of touch with reality.

17 May I just finally draw attention now to a further

18 letter. It is RNI-230-147, please (displayed). Could

19 it be enlarged? It is just barely readable. This is

20 a letter from Mr Lynch and it is sent to

21 Brian G McClelland, who is the chief executive of ICPC.

22 The letter is dated, one can see, 8th June 2000.

23 Now, this letter is really quite a bitter attack on

24 ICPC and one can see in that letter -- let me just see

25 if I can find the part. Could we enlarge the first half

 

 

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1 of the letter, please? There is considerable reference

2 to Commander Mulvihill's report, and he says:

3 "You neglect to mention that both

4 Commander Mulvihill and Chairman Donnelly assured

5 Mrs Nelson and me that we would receive copies of

6 Commander Mulvihill's findings and the Commission's

7 report. It was on this basis that Mrs Nelson, I and

8 several witnesses took time from our affairs to

9 cooperate with your Commission, Commander Mulvihill and

10 his investigative team. Sadly, neither you nor

11 Commander Mulvihill have kept your commitment to

12 Mrs Nelson, the witnesses or me."

13 Could we move to the next part, please? I will read

14 the next paragraph:

15 "The conduct of this entire matter by the Commission

16 brings discredit to the Commission. You asked for the

17 cooperation of witnesses, received that cooperation,

18 took a lengthy time to consider credible evidence of

19 gross misconduct by police officers, and then, at the

20 end of the day, you simply close the file without

21 specifying the basis of your action."

22 One can see immediately, sir, how utterly ridiculous

23 those propositions are. And an assumption by Mr Lynch

24 that in fact he is judging it himself and judging in

25 fact that the allegations were so well established that

 

 

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1 really no other conclusion could have been come to but

2 that there was such misconduct. I am not going to read

3 the rest of it here, but one can see that he then goes

4 through each of the witnesses and is really asking

5 whether or not they discounted the statements of C138,

6 C220. And could we continue the letter, please, by

7 enlarging it? I think we need to go over the page to RNI-230-148.

8 Take the next page, please. Thank you.

9 He refers to other statements of P146, a statement

10 made to P146 at paragraph 5:

11 "Did you reject the sworn statement of Colin Duffy

12 ..."

13 Et cetera:

14 "6. What was your disposition of the statement of

15 C215?"

16 And so on. Then at the bottom of the page, the last

17 paragraph:

18 "Until these question are answered in a forthright

19 manner and until the ICPC provides me with a complete

20 copy of your investigative report as promised, I can

21 draw no conclusion but that the Commission's handling of

22 the RUC threats against Rosemary Nelson was

23 insubstantial and a disservice to the citizens of

24 Northern Ireland."

25 Thank you. In performing your functions, we believe

 

 

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1 that the Inquiry will need to consider the probity and

2 the integrity and the value of any statements of this

3 kind.

4 Could I just move on then, please? We observe that

5 consideration no doubt will be given to the Police

6 Ombudsman's report. The Inquiry will presumably give

7 such weight to her findings as it considers appropriate,

8 bearing in mind that this was also a paper exercise.

9 It was a further general conclusion that there was

10 "a succession of errors" and the response of the RUC to

11 matters relating to Mrs Nelson's safety was inadequate.

12 These are matters you will have to consider afresh

13 and from a much better informed perspective than the

14 Ombudsman had.

15 The credibility of the Mulvihill Report was made an

16 issue by Paul Donnelly, the Chairman of ICPC, who

17 described it as "a monstrous libel" and produced

18 a separate written statement highly critical of the

19 report. We expect that the RNI will wish to consider

20 the merits of these and any other criticisms of

21 Mr Mulvihill.

22 Now, if I move then to issues 9, 10 and 11, now,

23 these concern the nature and extent of risk assessments

24 and the nature, extent and quality of the material on

25 which they were based. This is obviously a very

 

 

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1 important part of the Inquiry's remit.

2 In considering these important matters, we would

3 invite the Inquiry to consider the state of affairs

4 prevailing in Northern Ireland from 1990 to the year

5 2000, that ten-year period. During that time, there

6 were numerous terrorist-related murders and crimes,

7 thousands of people were at risk, including every

8 officer serving in the Royal Ulster Constabulary, as

9 well as prison officers, judges and magistrates,

10 politicians, contractors who did security work on

11 government and police installations. And I may say that

12 in Northern Ireland many such people who did work --

13 only working in -- at (inaudible) were targeted and

14 murdered. Also some personnel in the service of the

15 Government, including senior civil servants and some

16 lawyers.

17 Police officers were under threat at this time and

18 were being murdered in this period. We, therefore,

19 provide a synopsis of crime levels within

20 Northern Ireland in the period 1990 to 2000, including

21 murders under investigation.

22 A summary of this data is as follows: firstly,

23 within the RUC structure, J Division was located in

24 South Region and encompassed, as we have already heard,

25 the subdivisions of Lurgan, Portadown and Banbridge,

 

 

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1 which is the key area. Craigavon formed part of Lurgan

2 subdivision and had an established strength of one

3 sergeant and four constables. Craigavon CID was staffed

4 by one detective sergeant and four detective constables

5 in March 1999. That was at the time of the murder.

6 Thirdly, 499 people were murdered within

7 Northern Ireland between the years 1991 and 1999/2000,

8 of which 41 occurred within J Division. During this

9 time, 225 murders occurred which were not related to the

10 security situation and 23 of these occurred in

11 J Division.

12 So one can see the pressure of work in a small

13 police division. I am sure that if this sort of thing

14 were Birmingham or London or Manchester, this would be

15 regarded as something extraordinary.

16 Fourthly, between 1991 and 1999/2000, Loyalists were

17 attributed with 279 murders and Republicans with 254.

18 Within J Division, Loyalists were attributed with

19 25 murders and Republicans with 16.

20 My next point is that in 1999/2000, at that period

21 of time of, there were 32 detectives within J Division

22 and there were 7,434 notifiable offences recorded, and

23 2,776 of these offences were cleared up. That was about

24 35 per cent.

25 In that final decade, 1990 to 2000, there were

 

 

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1 1,935 explosions and defusals reported within

2 Northern Ireland. Between 1996 and 2002, there were

3 24 under vehicle improvised explosive devices within

4 Northern Ireland, and six of these incidents were in

5 Craigavon and the areas that surround it. And I am sure

6 these were taken into account by the murder

7 investigation team.

8 Now, I want to draw here a significant contrast

9 between two quite similar cases. On 13th May 1994,

10 a man called Fred Anthony, who was a cleaner in Lurgan

11 police station, was murdered by an under motor car

12 device which exploded, killing him, injuring his wife

13 and two children. One of the children was extremely

14 severely injured, had both her legs broken and had

15 shrapnel in her brain. In the subsequent investigation,

16 the HOLMES system shows that there were 80 actions taken

17 in relation to that murder, and as far as we are aware,

18 no one was ever made amenable for it. But it was, I

19 think, the view was that it was clearly a Republican

20 device placed by a Republican paramilitary -- illegal --

21 organisation.

22 In the Rosemary Nelson murder investigation, by

23 contrast, there were 12,305 actions raised and I think,

24 sir, that gives some idea of the prominence given to the

25 murder investigation of Rosemary Nelson. It was

 

 

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1 unsurpassed in effort, in skill and in resources and it

2 would appear that no expense has been spared, no effort

3 has been spared to solve that murder. And indeed, I

4 think that Mr Ayling said in terms that the officers

5 concerned were wholly dedicated and sincere in their

6 pursuit of who might have committed this murder,

7 although we know that apparently their efforts did not

8 entirely meet with the approval of Mr Ayling, but that

9 will be dealt with by someone else.

10 However -- and here I just will digress slightly for

11 a moment to deal with an issue which I think concerns

12 not just MIT but PSNI, and that relates to the matter of

13 intelligence.

14 This matter was referred to by Mr Phillips in some

15 detail and the theme was taken up with some enthusiasm

16 by Mr Harvey who expressed the view that it was

17 staggering that there had been no information unearthed

18 by intelligence either prior to the murder or after the

19 murder. Now, it seems to us, with respect -- and you,

20 sir, and your colleagues will consider this, as to

21 whether or not that is a fair proposition, because if

22 that were so, a lot of the hundreds of unsolved murders

23 in Northern Ireland would have been solved, including

24 perhaps the murder of Fred Anthony, the cleaner out of

25 Lurgan police station.

 

 

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1 It is a fallacy to assume that because apparently no

2 information has been found, no intelligence is

3 available, that somehow or other that is a failing. It

4 may be that other information will emerge in the course

5 of this Inquiry about intelligence concerning the

6 murders, but to say that, oh, look, why didn't you have

7 some information about this, why was it not possible to

8 predict that the murder was going to happen, one can see

9 the absurdity of that proposition. It is illogical,

10 unreasonable.

11 It is all very well to say that there had been

12 a considerable number of human intelligence sources and

13 no doubt there were, but that doesn't mean that they are

14 going to pick up everything.

15 I am quite sure that MIT, after the murder, would

16 have been very alert to find out if there had been any

17 intelligence afterwards. Now, I think we do know -- and

18 I think we will hear -- that some named persons were

19 suspected of the murder and there may have been some

20 information -- and I am not saying there was at the

21 moment, but certainly the Inquiry team had some names

22 they were working with. But it is one thing to suspect

23 someone or even have some limited information about

24 them, to prove it is a very different matter or to

25 obtain evidence is a very different matter.

 

 

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1 So therefore, I think we would suggest and submit

2 that it seems unlikely that this so-called failure of

3 intelligence is an altogether fair allegation to make.

4 The insinuation seems to be, however, that, because we

5 haven't seen any of this, that it may be there and it

6 may have been suppressed. Now, that is the other side

7 of the coin. However, the Inquiry, I am sure again,

8 will pursue that with care.

9 Now, coming back to some of this statistical

10 information, during 1999 to 2000, there were

11 131 shooting incidents and 86 bombings as a result of

12 the security situation, and there were 110 firearms

13 offences and 240.4 kilogramís of explosives were

14 recovered. There were 75 shootings, and

15 103 paramilitary-style attacks occurred in which the

16 persons responsible for carrying out the attack belonged

17 to the same community as the victim. These were often

18 known as punishment beatings and punishment shootings.

19 During 1990 to 2000, 288 persons were charged with

20 terrorist offences or offences relating to incidents of

21 serious public disorder, for example, petrol bombing

22 offences. There were altogether a total of

23 119,111 crimes recorded during the year 1999 to 2000,

24 representing an increase of 9.2 per cent on 1998/1999.

25 Within 1999/2000, there were increases in seven of

 

 

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1 the nine classes of recorded crime. However, more than

2 three fifths of the overall rise were accounted for by

3 increases in two crime classes: Offences against the

4 person up by 16.2 per cent to 21,447; and criminal

5 damage offences up by 12.8 per cent to 31,202. And from

6 1991/1992 to 2000/2001, a total of 12,647 persons

7 claimed to the housing executive that they were

8 intimidated and required rehousing.

9 Now, that is quite a considerable statistic. It may

10 also be of interest to the Inquiry to note police and

11 military casualties in Northern Ireland and in

12 J Division in that last decade, 1990 to 2000. And the

13 information is as follows: in 1999, a total of

14 395 police officers, 22 soldiers, 16 members of the UDR

15 RIR and 552 civilians were injured as a result of the

16 security situation. 36 police officers were killed as

17 a result of the security situation between 1990 and

18 2000, and within J Division itself 6 police officers

19 died.

20 Now, that again gives this Inquiry some idea of the

21 price paid by the RUC during this period in life and

22 limb. And indeed, there were 3,280 police officers

23 injured as a result of the security situation between

24 1990 and 2000, and within J Division itself, 465 police

25 officers were injured between 1995 and 2000. Many of

 

 

25

 

1 those injuries were extremely severe and many officers

2 had to retire on medical grounds.

3 American lawyers and various NGOs expressed strong

4 opinions based largely, if not wholly, on accounts from

5 third parties, including Rosemary Nelson, her clients

6 and persons with agendas of their own. So in fact, one

7 is aware that there was this body of interest from

8 North America in particular, and indeed from other NGOs,

9 who had no first-hand experience of what was going on,

10 but they were quite prepared to pick up and run with the

11 information with which they were provided.

12 Could I come to another issue, and that concerns

13 risk assessments. A considerable issue for this Inquiry

14 concerns the risk assessments which were or should have

15 been carried out in relation to Rosemary Nelson, and

16 I have indicated in fact that this has to be seen

17 against the large backcloth of threats in

18 Northern Ireland, real threats, to hundreds and hundreds

19 of people.

20 It is alleged that no adequate risk assessment was

21 carried out in relation to Rosemary Nelson, and risk

22 assessments were carried out but one will note that

23 there was never any claim by Rosemary Nelson that they

24 should be. And it is eventually a matter for the

25 Inquiry to consider whether or not the risk assessments

 

 

26

 

1 were adequate and based on reasonably accessible and

2 available information and material.

3 One of the witnesses has described from a position

4 of authority what a specific threat is -- and this will

5 be something which will no doubt exercise the minds of

6 the Inquiry -- and it is defined as follows:

7 "A specific threat would be intelligence that was

8 received from a credible source indicating that somebody

9 was going to be targeted."

10 This definition was used by the police in their

11 assessment of risk and it would be right to say that

12 generally they did not find any such specific threat to

13 Rosemary Nelson. And the several questions for the

14 Inquiry of course will be: Was this a proper assessment

15 on the police definition in relation to the carrying out

16 of risk assessments.

17 Excuse me a moment, please. (Pause)

18 Now, there was a significant threat assessment

19 carried out in March 1998, and I will not go through the

20 history of that because there is a considerable history

21 in the correspondence. And one can see that in fact

22 this was taken seriously by the authorities and there

23 was a great deal of correspondence passing between

24 various organisations, including the Command Secretariat

25 and the civil service. I think that Mr Phillips has

 

 

27

 

1 already covered a lot of this in very considerable

2 detail.

3 I will come to the central point the matter was

4 considered by Special Branch -- that's at this

5 particular time. The matter was considered by local

6 Special Branch and a report from that source dated

7 10th March 1998 was prepared by Detective Sergeant

8 B123. The report stated that there was no record of

9 a threat against Rosemary Nelson held in the office, and

10 some of the text of the assessment by Special Branch has

11 been given, is set out at paragraph 21.2 of the Police

12 Ombudsman's report, and it is as follows:

13 "She [Rosemary Nelson] regularly represents

14 Republican activists in the greater Craigavon area in

15 her capacity as a solicitor, and as such would be

16 well-known. Her role could lead Loyalists or Unionists

17 to identify her as a supporter of the Republican cause,

18 although not in any way that she was, in the absence of

19 any threat that she would be known to Loyalist

20 paramilitaries in this area and would be at a degree of

21 risk while working and residing in the area."

22 Now, I just draw attention to the fact that

23 Mr Duffy, in his statement to RNI -- he described her as

24 a "classic Republican".

25 There is reference to a degree of risk while working

 

 

28

 

1 and residing in the area. There was a briefing to the

2 police personnel in Lurgan at appendix B, and there is

3 some uncertainty over what became of that document. And

4 that is something, of course, that will have to be

5 considered.

6 But the point we would make, sir, is that the matter

7 of her safety was high in the minds of the authorities

8 and risk assessments were carried out. And I come to

9 the next risk assessment, which was in August 1998,

10 which is more proximate to the events which led to her

11 death. This was an assessment conducted on the basis of

12 the "Man Without a Future" document and in the absence

13 of the threatening note.

14 The relevant document is RNI-101-337, which I will

15 not ask to be put on the screen, but I quote:

16 "E3 holds no current intelligence to indicate that

17 a specific threat exists to Rosemary Nelson from

18 paramilitaries."

19 And there was another from the Portadown

20 Special Branch saying no intelligence of a specific

21 threat.

22 Now, of course there is the issue about this missing

23 note and I think the point is being made that if that

24 note had been available, that might have changed the

25 view of those assessing the risk. That, again, is

 

 

29

 

1 a matter for this Inquiry to consider, whether that

2 would have made any difference in the context of the

3 "Man Without a Future" document and in the context of

4 the whole situation in the Lurgan area, because in fact

5 despite the fact that those carrying out the assessment

6 of risk did not have the threatening note, nonetheless

7 there was still factually no other -- no particular

8 threat that they were aware of -- or no specific threat.

9 And of course, one then gets down to the definition of

10 whether or not the note itself comprised a specific

11 threat.

12 So I will not say anything further on that issue

13 concerning risk assessment because it is something that

14 will require very careful consideration.

15 Now, in relation to the Key Persons Protection

16 Scheme, it is quite clear that very, very careful

17 attention was given to whether or not she would qualify

18 for this scheme, and of course she never made any formal

19 application for it. I suppose the authorities maybe

20 were expected to bend the rules and consider it without

21 reference to her, but the difficulty would be that she

22 still could not have gone on that scheme unless she was

23 prepared to allow officers to carry out an assessment,

24 to interview her and to attend at her home and to advise

25 her on appropriate security.

 

 

30

 

1 I will make another observation about the security

2 situation, this point about her security, and that

3 concerns whether or not in all the circumstances the

4 police might have said, "Well, she is not willing to

5 cooperate, there is a risk involved here, there is

6 obviously some risk to her, we will just send her

7 a letter and we will tell her, advise her as to what

8 security precautions she should take." It may be that

9 the letter might have ended up in her waste paper

10 basket, but nonetheless that is something that could

11 have been done for cosmetic reasons. And perhaps, with

12 hindsight, that might have been maybe the wise thing to

13 have done: to have sent her a letter.

14 But are we talking about cosmetic things here? Is

15 this really going to condemn the RUC because they didn't

16 in fact go through certain formalities, tick various

17 boxes, keep themselves right? Because what more, at the

18 end of the day, were they going to be able to do to

19 protect this lady if, in fact, she needed more

20 protection? I think it may well be, in the

21 circumstances, that it might have been prudent for the

22 RUC to have firstly invited her for a discussion about

23 her security, and one has to consider whether or not she

24 was interested in that -- I think probably not -- or

25 whether they would send her this cosmetic letter about

 

 

31

 

1 this security, giving her the usual standard advice to

2 put her car in the garage, check underneath it, lock

3 your door at night, don't stand at an open window with

4 the lights lit in the living room so that people could

5 see in; that sort of very basic advice which anybody in

6 Northern Ireland, and especially anybody living in

7 Lurgan, would know. If there was any possible threat

8 against you or if you felt aware of a problem or felt

9 anxious about your own security, that would be the

10 obvious thing to do.

11 I just point out a few points concerning the KPPS

12 are these: that decisions concerning KPPS were taken by

13 the Northern Ireland Office; the process of risk

14 evaluation was undertaken by the RUC; the action taken

15 by police is outlined in Police General Order 21/98,

16 dated 20th March 1998.

17 On 15th March 1999, there were 1,180 individuals on

18 the scheme, and of these 622 were police officers. Now,

19 it is right to say that in fact at this time police

20 officers were always at incredible risk, and we know

21 that Mrs Nelson didn't apply for KPPS. In the period

22 from 1990 to 1999, 1,337 people applied for KPPS, and of

23 those, 955 were admitted to the scheme and 382 were

24 refused.

25 Now, I think I have already dealt with the issue

 

 

32

 

1 concerning whether Mrs Nelson could have accepted any

2 level of protection if it had been offered to her, and

3 I have made the observation -- and it will be a matter

4 for the Inquiry to consider, whether or not there is any

5 substance to it -- that she probably wouldn't have

6 wanted it and wouldn't have accepted it.

7 I have already pointed to that particular letter

8 annotated by Jean Forest, a very detailed letter from

9 the police department indicating the lack of cooperation

10 by Rosemary Nelson. And the note from Jean Forest, who

11 even herself seemed to recognise or acknowledge that --

12 she raises the question of "irresponsibility??"

13 Now, that, again, I only draw attention to it. It

14 is a matter for this Inquiry to consider whether or not

15 that is a fair appraisal by Jean Forest of her attitude

16 to security and having matters investigated.

17 I am almost finished, you will be glad to hear, sir.

18 In the time available, we have only been able to

19 highlight some of the principal issues pertinent to the

20 remit of this Inquiry. Mr Phillips has referred on

21 Day 1 to the need to investigate and probe:

22 "... the troubling suggestion that at their highest

23 of state involvement in the murder."

24 So that seems to be the focal point for this

25 Inquiry. The central theme often, the underlying reason

 

 

33

 

1 for this Inquiry, appears to be the suspicion, for

2 whatever reason, that state agencies were responsible at

3 least in part for the murder of Rosemary Nelson.

4 Now, this suspicion, rooted in the minds of many,

5 has grown and flourished and its voluble articulation

6 has led to this Inquiry which, it is hoped, will lay the

7 matter to rest in the hope that the truth will set all

8 free. For many, and especially for the Nelson family,

9 it will undoubtedly be a painful and traumatic

10 experience, and may it bring peace. Thank you, sir.

11 THE CHAIRMAN: Thank you very much. We will adjourn for

12 a quarter of an hour, Mr Egan.

13 (11.14 am)

14 (Short break)

15 (11.30 am)

16 Opening submissions by MR EGAN

17 THE CHAIRMAN: Yes, Mr Egan.

18 MR EGAN: Sir, thank you. The allocation of the time given

19 to counsel in this case is generous. Can I indicate

20 that I don't intend to avail myself of all of it; I am

21 going to be about 40 minutes. I might be slightly

22 longer than that.

23 The reason for that length is that I anticipate --

24 and, of course, this is essentially a question for

25 advocacy judgment -- that the Inquiry will not be

 

 

34

 

1 assisted by detailed factual submissions on a part of

2 the Inquiry that will not commence before the autumn,

3 and the matters that I wish to raise and intend to raise

4 now that are, I hope, relevant and helpful, can be

5 shortly made by me. Can I say a word about

6 representation?

7 The four officers that I represent headed by

8 Mr Port -- so I will address his Terms of Reference.

9 His Terms of Reference gave him important and necessary

10 autonomy in the management of the investigation. That

11 appointment, his appointment as officer in overall

12 charge, gave the investigation a significant and

13 important degree of independence, a feature that Mr Port

14 sought to maintain throughout.

15 The RUC and then the Police Service for

16 Northern Ireland had no involvement other than through

17 those officers who were members of the murder

18 investigation team. As OIOC, Mr Port reported to the

19 Chief Constable of the RUC but there was no direct

20 involvement in the investigation by senior management in

21 the RUC except through Mr Kincaid as SIO and M540 as

22 Mr Kincaid's deputy. That element of independence was

23 and is vital if the unique concerns about the

24 investigation of this murder were to be addressed.

25 The decision to retain expert Northern Ireland

 

 

35

 

1 investigators was, we would submit, correct and an

2 obvious one, and I will say more about that in a second.

3 The expertise of the Northern Ireland officers that were

4 retained after careful consideration was to be a vital

5 part of the concerted effort to identify the murderers.

6 RUC resources were used and not denied the murder

7 investigation team. However, it is appropriate for me

8 to identify at this stage that the interests of the

9 murder investigation team are different from the Police

10 Service of Northern Ireland's interest, and that is why,

11 after all -- a statement, I suppose, of the obvious --

12 that we are separately represented as Full Participating

13 Parties.

14 Of course, this is an Inquiry, not a trial. But the

15 question of due diligence, which I will deal with now

16 immediately, will involve necessarily this Inquiry

17 coming to judgments on evidence which carry the

18 potential for criticism, indeed possibly serious

19 criticism, of the senior officers involved. Therefore,

20 that exercise has to be conducted fairly by applying

21 reason and proportionality. That is, of course, all

22 we ask. It is why we would suggest and have always

23 suggested that such judgments need to be made on the

24 evidence.

25 May I say a word, before dealing with the question

 

 

36

 

1 of evidence, about documents and particularly some

2 documents referred to by Counsel to the Inquiry in the

3 course of his very helpful and full opening; perhaps

4 a word particularly about the document which everyone

5 had served with them together with the redacted report

6 of Mr Ayling and the outline of evidence served by our

7 team. That is the document headed "A summary of the

8 murder investigation", because I think it is important

9 just to point out -- just as a slight note of caution --

10 exactly what that document is and, perhaps more

11 relevantly, what it isn't.

12 This is the final version of a document which was

13 originally provided in draft in May 2006 by my

14 solicitor, and one can see from the qualifications of it

15 exactly what the limitations of it are. I am sure it

16 has proved, we hope it has proved, a useful document not

17 only to the Inquiry but to those people who received it,

18 particularly those parties who received it very recently

19 with other documentation.

20 But it is not a definitive summary. How could it

21 be? There may be, almost certainly will be, important

22 questions that arise in the course of an Inquiry which

23 will always be -- that is the nature of an Inquiry --

24 essentially an organic process, and it should also be

25 remembered if any textual analysis is conducted on it --

 

 

37

 

1 for example, by comparing it with the outline of

2 evidence -- that it was a document that was created for

3 a different purpose. Of course, the outline of evidence

4 is precisely what it says: It is an outline of

5 anticipated evidence.

6 Mr Phillips, when drawing attention at the close of

7 his submissions yesterday, made it clear that he was

8 unable to open the reaction of the murder investigation

9 team to chapter 15 and the various points made in

10 Mr Ayling's report in chapter 14. Certainly it is that

11 the outline of evidence doesn't deal with chapter 15.

12 But in fairness to him, Mr Phillips was not aware I

13 think -- in fact, I think I know -- that the members of

14 the senior investigation team, that is of the four

15 officers I represent, only Mr Provoost had seen

16 chapter 15 before the redacted Ayling Report was served

17 on 15th March April 2008. And Mr Provoost had, of

18 course, been allowed to see the report exceptionally

19 because he was taking part, the very vital and important

20 part, in assisting the Inquiry to redact the various

21 documents; a very important function that he continues

22 to do.

23 I say with confidence that Mr Phillips wasn't aware

24 of that because I am quite certain that had he been so,

25 with his customary fairness, he would not have made the

 

 

38

 

1 point in quite the way he did.

2 So to that extent, I can move on, save to make this

3 comment, and it's made in a genuine spirit of seeking to

4 assist: if there is at present, in the Counsel Team for

5 the Inquiry, any lack of clarity on issues that have

6 been and will be raised on behalf of the murder

7 investigation team, there is in the very substantial

8 response made to the original draft Ayling Report, I

9 think, numbering slightly under 300 pages, ample

10 material which can be used to identify areas where

11 Mr Ayling's views, as expressed in chapter 1 to 14 --

12 not of course chapter 15, which the main body of the

13 murder investigation team have only had since

14 15th April -- where those matters are not accepted.

15 So, moving on, can I say a short word but important

16 submissions, I submit, on due diligence.

17 Mr Phillips looked with care, rightly, at the

18 meaning of the word and in fact read a number of

19 different investigations. Can I say this -- and I am

20 anxious not to spend a great deal of time on it -- at

21 the end of the day, there may be little between us on

22 the meaning and it seems to us that the test, as

23 expressed by Mr Phillips and indeed by Mr Ayling in his

24 report, is the correct test. The question, the vital

25 question is the application of the test.

 

 

39

 

1 Mr Phillips said -- and I will use his precise words

2 because they are important and give a clear indication

3 of the task -- that:

4 "Due diligence is effectively ..."

5 Here are Mr Phillips's words:

6 "... the qualitative assessment required in relation

7 to the murder investigation in order to answer the

8 question: was it carried out with due diligence?"

9 He went on to say correctly, in our submission, that

10 this was, despite the shortness in the Terms of

11 Reference -- and of course it is a very small part of

12 what is quite a long document -- that despite the

13 shortness of the reference, it is a massive task for the

14 Inquiry, closely related to but in many ways distinct

15 from other topics which you have to consider;

16 distinctive because it is not simply a question of

17 making findings of fact.

18 We apply ourselves to those words. We think they

19 are carefully thought out and clearly correct.

20 It is that distinct element, we submit, that brings

21 with it the greatest danger of that tempting matter of

22 hindsight.

23 A lot tends to be said in inquiries, in courts, in

24 any matter that has to look back, about hindsight. It

25 is a common expression: please beware of hindsight. And

 

 

40

 

1 sometimes it is overused. After all, any inquiry or

2 court process involves having to look back. It is an

3 essential part of any Inquiry process, and in normal

4 circumstances so long as an informed and properly

5 directed tribunal informs itself that it must be warned

6 of the danger of hindsight, then hindsight itself is no

7 real obstacle to safe findings.

8 We are aware of course of the constituents of this

9 Inquiry. We are sure that those directions will be

10 clearly borne in mind. But however the examination of

11 the question of due diligence is a rather different

12 exercise, as Mr Phillips rightly submitted, from the

13 finding of facts.

14 The distinction is a real one. Sometimes

15 definitions are telling. Mr Griffin, my junior, very

16 helpfully tells me that the Oxford Concise Dictionary

17 defines hindsight -- and the precise definition is

18 important -- as "wisdom after the event". And it is the

19 word "wisdom" I place emphasis on, because there is the

20 danger when one is looking at the question of due

21 diligence. Of course, you will have to look back and

22 put yourselves in the position of the people who took

23 decisions, who formed judgments, who, to use the words

24 of Mr Harvey -- I apply myself to them -- of course the

25 matter at the end of the day will be a matter for you --

 

 

41

 

1 who did their best.

2 Ultimately, that kind of qualitative assessment

3 really does carry with it an enormous danger when we

4 know all the answers. The most modest chess player in

5 the world can seem like a world champion if he has the

6 game at the end with all the moves and he talks you

7 through it.

8 In this kind of exercise, hindsight, there is an

9 enormous danger that it will make experts of everyone.

10 What, of course, the danger is that in the kind of

11 question that you are viewing here, due diligence,

12 putting yourselves in that position, one must be careful

13 not to fall into that trap. And it is a danger -- and I

14 am afraid I must make this, I hope, with some force --

15 it is a danger that cannot be answered by merely

16 repeating as a mantra throughout, for example, a long

17 report: of course I am aware of the dangers of

18 hindsight. One has to go, I think, a little further

19 than that.

20 That is one of the reasons -- perhaps it needed no

21 reason, because it is obvious -- where we suggest that

22 any findings ultimately on due diligence must be

23 evidence-based. In relation to that, can I move

24 immediately there to Mr Ayling, because clearly in

25 relation to the case that I represent, or the parties

 

 

42

 

1 that -- Full Participating Party that I represent,

2 rather than the case; I correct myself there -- he is an

3 important feature of it.

4 We have been helpfully informed by the Solicitor to

5 the Inquiry last month, correctly, we submit, that

6 although retained by the Inquiry, Mr Ayling does not

7 speak on behalf of the Inquiry. He has been asked, said

8 the Solicitor to the Inquiry, to provide an analysis by

9 objective standards, and that is his report. But the

10 ultimate question as to whether such standards could be

11 applied in Northern Ireland in the period following

12 Mrs Nelson's death is not a matter for Mr Ayling; it is

13 a matter for the Inquiry panel. We echo that. We think

14 that is a clear expression of the correct approach.

15 It brings me immediately to the question -- and a

16 rather delicate one -- that needs to be addressed of his

17 status as a witness. Mr Ayling has produced his report

18 and it is an impressive document in terms of size and

19 bulk, but he has no special status; at present he has no

20 special status.

21 The fact that he has been retained for a long time

22 and has, through from first draft to final draft, with

23 considerable use of resource, prepared a long report,

24 cannot artificially enhance his status. He is a witness

25 like any other, and the assessment of his evidence and

 

 

43

 

1 the assessment of his opinions will be a matter for the

2 judgment of the Inquiry.

3 I will say a word about his expertise in a second

4 because that is important. But we have no doubt that in

5 addition to the evidence of Mr Ayling, you will be

6 informed in this important question by the evidence you

7 will also hear from the four officers who are named on

8 the outline of evidence, amongst others -- there may be

9 others -- and particularly the experience of the

10 Northern Ireland officers in the unusual circumstances

11 of a terrorist-related murder in this country.

12 I said I would say a word about expertise and may

13 I do so.

14 Mr Phillips, in the course of his opening on

15 Tuesday, said that he was aware, as indeed of course he

16 is -- we flagged it up clearly -- that there is

17 a question mark over Mr Ayling's expertise. He has no

18 experience of terrorist-related murders in

19 Northern Ireland. A false point, says Mr Phillips, to

20 suggest that. Is it really suggested -- I paraphrase

21 what he said, I hope not inaccurately -- is it really

22 suggested that someone with no experience of policing in

23 Northern Ireland can offer expert opinion? Look, after

24 all, at Blakey, the report, Crompton, Patten, in fact,

25 the recommendations. We submit that that has to be

 

 

44

 

1 looked at with little bit of care. And it may itself

2 be, unusually for Mr Phillips, a false point.

3 Firstly, the persons named were performing a wholly

4 different function: Mr Blakey, Mr Crompton and

5 Mr Patten. They were advising and guiding a force in

6 another country on changes to their structure and their

7 whole approach.

8 Here we have an expert witness who declares himself

9 for an expert, setting out his opinion for your

10 consideration in the qualitative assessment that we have

11 outlined. But it is much more fundamental than that,

12 I submit, and in reality it is a very simple matter of

13 law that I with no diffidence make, because in my

14 submission it has to be correct. I am just going to put

15 it as baldly as that. It goes to his expertise. It

16 really is as simple as that.

17 He is allowed to give opinion evidence because he is

18 an expert witness. That is his right in an Inquiry, as

19 it is anywhere else. You will only be helped by expert

20 evidence. But whether he has sufficient expertise is

21 itself a fact-sensitive issue. You will have to

22 determine whether he has sufficient expertise to assist

23 you with the opinions which you need in order to perform

24 your important function, because his expertise, after

25 all, goes directly to the weight to be attached to his

 

 

45

 

1 evidence. I said that I would put that as an

2 uncontroversial submission of law and, in my submission,

3 that is precisely what it is.

4 If at the end of the day you find that Mr Ayling has

5 not been able to apply the necessary level of expertise

6 to this particular question, it affects the weight of

7 his evidence; the weight to be attached to his evidence.

8 A note of caution as well in relation to

9 a submission which was made attractively -- indeed,

10 Mr Phillips perhaps couldn't make a point any other

11 way -- when he says, well, he shows balance, does

12 Mr Ayling, because there are a number of parts of his

13 report where of course he is complimentary. This shows

14 his balance and, therefore, implicitly it adds weight to

15 his opinions. But I wonder, I ask rhetorically: is that

16 actually quite right?

17 At the end of the day, a detailed analysis of this

18 massive investigation will inevitably have to recognise

19 that in many instances there was work of an

20 extraordinarily high quality, and in many ways that

21 continued throughout the course of the investigation.

22 That has to be recognised from top to bottom in this

23 investigation by anyone looking at it.

24 If anything -- and I make the bold submission -- it

25 may very well be that there is a finding at the end of

 

 

46

 

1 the day that there is not enough recognition by

2 Mr Ayling of the quality of that work.

3 Finally, on Mr Ayling's approach, a word said by

4 Mr Phillips again a matter that may require a little

5 more detailed examination on the evidence: the

6 expectation that Mr Ayling will do all the work, and the

7 conventional rubric is put to us and it does sound

8 reasonable. He cannot be expected to do all the work

9 himself. Effectively, he has his team, but the opinion

10 is his own.

11 We do sound a note of caution in this case. It may

12 very well be that that is not an approach that can

13 safely be adopted simpliciter. This is not a case of

14 a scientist who was giving conclusions on the basis of

15 laboratory assistants doing the running around and the

16 various tests, et cetera. There are whole parts of this

17 report, we will submit, when it is examined -- and this

18 is an evidential fact-sensitive exercise -- there are

19 whole parts of this report where the authorship of the

20 opinions themselves require careful analysis.

21 That, as I say, is a fact-sensitive issue and it may

22 very well require careful examination.

23 A word about the investigation, and a rather obvious

24 point in many ways, but sometimes the obvious ones are

25 overlooked. You will know, sir and those who listen, I

 

 

47

 

1 am sure, are now quickly aware, that collusion in

2 addition to other matters such as intelligence, but

3 particularly collusion was regarded by the officer in

4 overall charge, and indeed everybody, as a major line of

5 enquiry in this case.

6 Such a fundamental line of approach from the very

7 beginning illustrates that from the outset the murder

8 investigation team regarded collusion, which after all

9 may be one of the major concerns behind this statutory

10 reference, as one of their main concerns as a line of

11 enquiry for themselves. And in those circumstances, if

12 for no other, it meant that the murder investigation

13 team with their Terms of Reference commenced on the

14 right and correct basis.

15 I am going to say a word or two about the individual

16 members, but they will be very short. Sir, I know you

17 will have read with care, and I am sure the other

18 parties will have read, our outline, the evidence

19 document, and I think it will be of little utility for

20 me to go through it in detail. But can I make one or

21 two references to some of the personalities involved.

22 Before I do so, can I just say this: we submit with

23 confidence that the members of that team, their good

24 faith will not be challenged. If it is challenged, of

25 course that will have to be dealt with, but these

 

 

48

 

1 submissions are made on the fairly confident assumption,

2 correct, confident assumption, I will submit, that their

3 good faith is not in question. In those circumstances,

4 can I first of all deal with Mr Port.

5 An officer in overall charge from 6th April 1999

6 until 31st December 2002; his experience is set out at

7 paragraph 13 to 17 and you will be able to assess him

8 when he gives evidence. He was set a task of

9 extraordinary sensitivity and difficulty, and it will be

10 our submission, the evidence will show -- already shows,

11 in fact -- in summary that he showed real flair in

12 balancing the need to approach the matter with great

13 sensitivity and to investigate it with the rigour and

14 independence that this terrible murder deserved and

15 needed.

16 He was assisted undoubtedly by his experience in

17 other jurisdictions, but in addition to that one can

18 see, and sees very clearly on what I am sure is going to

19 be uncontested evidence, how this particular senior

20 officer set about his task. You will recollect that

21 there was a question mark -- I say a question mark; I

22 don't think it is a serious question -- about the

23 decision made by Mr Port to base himself in Lurgan. It

24 may not have been a decision that other senior officers

25 may have made, but it was a decision, we will submit,

 

 

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1 that rebounds entirely to his credit.

2 The decision he made to base himself in Lurgan, to

3 share a rather small and perhaps in many ways cramped

4 and uncomfortable offices with other members of his

5 team, showed his desire to retain his strategic

6 responsibility while being available and approachable;

7 in other words, to use a term, he was not "clipboard

8 commander". He was prepared and willing and did involve

9 himself immediately in the important functions, being

10 keenly aware that to command from a distance in this

11 case would have had a negative aspect. That, I submit

12 with some confidence, was the correct decision. And

13 that he kept his sense of strategic detachment while

14 enabling himself to work in close proximity with his

15 junior officers and see the problems as they arose, is

16 probably why he is regarded by his team in the way that

17 he was.

18 I could far exceed the time by going through the

19 various measures, and I don't propose to do so. Can I

20 just give one nugget of an example, and I hope it is

21 a nugget and a rather interesting one. When

22 Mrs Nelson's car was fingerprinted, there was a very

23 small number of fingerprint marks found upon it. This

24 was a situation which caused some dismay,

25 understandably, amongst the family, who found it hard to

 

 

50

 

1 credit that there would be so little fingerprints on

2 a car.

3 In an effort to allay their concerns and applying

4 his own expert knowledge, Mr Port had his own car

5 examined in Norfolk by forensic experts and the findings

6 relayed to the family. It was an illustration that you

7 may very well feel, sir, you and your colleagues, that

8 it was an entirely justified trouble to go to to show

9 what the real position was. And it showed sensitivity

10 and concern. And it is on that basis, rather than just

11 mere rhetoric, that I say that he showed flair for the

12 various difficult tasks that he had to perform.

13 In the unique environment of this investigation, his

14 attitude to the family that I have just described, that

15 is only one small example, the community and the NGOs

16 are telling. The family I have dealt with. He took the

17 view, and in my submission it was a sensible view, that

18 Mrs Nelson's personal life was regarded, insofar as it

19 was proportionate, appropriate and relevant. It is an

20 area of sensitivity that requires real sensitivity in

21 this case.

22 The community: I've dealt with that. Perhaps an

23 interesting illustration is his attitude to the NGOs.

24 You will see from the outline of evidence that he

25 regarded them as assets, and that is a rather

 

 

51

 

1 interesting fact, you may feel, and shows. But at the

2 end of the day, the regard which this senior officer was

3 regarded by members of the murder investigation team --

4 it is described in paragraph 80 -- will be seen, we are

5 confident, on the evidence to be deserved. It is

6 telling that he continues to provide assistance and

7 advice to this day.

8 I will now deal with the two RUC officers who were

9 involved, and I will deal with them very, very quickly

10 indeed but that is not in any way to diminish their

11 importance.

12 Mr Kincaid was the SIO from 15th March 1999

13 until August 2000. He had experience which is set

14 out -- I am not going to go through it -- and, vitally,

15 expertise. That expertise is of extreme importance.

16 This was a man who did have experience of investigating

17 terrorist murders, and that is one of the reasons why --

18 I submit it with some confidence -- there can be no

19 serious suggestion surely, can there be, that this

20 investigation could possibly have proceeded without

21 involvement, the correct involvement of officers with

22 the requisite experience.

23 You will know that steps were taken to make sure

24 that any RUC officers that were involved had not been

25 involved, for example, in the Mulvihill Inquiry,

 

 

52

 

1 et cetera, and that was a clearly a sensible and

2 a prudent step to take. But the murder investigation

3 team anticipated correctly, did they not, that to try to

4 investigate this murder in Northern Ireland, the

5 Northern Ireland position, without officers who had on

6 the ground experience would be quite hopeless.

7 In addition to that matter, I will submit that

8 ultimately, when you hear the officers, particularly

9 Mr Kincaid and M540, you will have the benefit of

10 witnesses who have the relevant expertise on which

11 I place such emphasis.

12 It can of course be submitted that he has an

13 interest to serve, but because this is an Inquiry, you

14 and your expert members are uniquely placed to be able

15 to assess their expertise, SK and M540, and you may very

16 well feel it provides you with real expertise for you to

17 assess. You will be able to assess whether it is

18 tainted at all by self-interest.

19 SK himself, Mr Kincaid, in later years on promotion

20 was responsible for overseeing the introduction of the

21 Patten recommendations, you have been reminded by

22 Mr Phillips correctly. Many of those were radical. He

23 was actually, rather tellingly, responsible for

24 introducing the general order on the role of defence

25 lawyers, such an important part of this Inquiry but

 

 

53

 

1 doesn't directly affect me on behalf of the MI team.

2 M540, I can be quite quick, but again, because the

3 point is brief, it is no less powerful. You will have

4 seen he was Deputy SIO from 15th March 1999

5 until September 2000, when he became SIO until May 2005.

6 You will have seen -- and I paraphrase it very

7 briefly -- that this man was a hands-on detective in

8 every sense of the word, and had hands-on detective

9 involvement throughout the Troubles from 1971 onwards.

10 That kind of experience was firstly absolutely vital,

11 and secondly, wholly irreplaceable.

12 Mr Provoost was deputy officer in overall charge

13 from 12th April 1999 until he took over as officer in

14 overall charge on 31st December 2002. He will be an

15 important witness on all manner of levels and you will

16 wish to assess him.

17 He will give evidence -- and anticipate that the

18 only note of bitterness, and it is a sincere note --

19 will be that, for this officer, is the matter that

20 Mrs Nelson's murderers remain undetected.

21 His present position as officer in overall charge

22 shows the remarkable continuity in command commencing

23 from 1999, and it is something that enhances the

24 investigation.

25 Now, can I make a short comment about one or two

 

 

54

 

1 issues. One particular of concern is the issue of

2 victimology, and I illustrate that as an example because

3 it may ultimately be an important issue for you to

4 decide, because although Mr Ayling makes other points,

5 it is one of the main points that he makes adverse to

6 our interest.

7 In those circumstances, we heard some comments

8 yesterday from Mr Harvey QC, on behalf of the family,

9 and of course we are grateful for those. But one

10 particular witness that you will hear who might be

11 thought to be, I hope, an important witness, is

12 Sir David Phillips, who had the comparatively short

13 role, sir, you will know, between the murder and Mr Port

14 taking over, and so in those circumstances is perhaps

15 uniquely placed to give helpful evidence about the

16 reality of victimology in this particular case.

17 I am going to read from a statement that

18 I anticipate -- of evidence -- that he will give to the

19 Inquiry. I have put my learned friend on notice about

20 this, Mr Phillips:

21 "I think one of the problems with reviews and

22 inquiries is that there is often a view that if things

23 had been done differently, the outcome would have been

24 different. These cases can be so difficult. Even with

25 your best efforts, realistic evidence eludes you.

 

 

55

 

1 People must not be tempted to try and compare the

2 investigation into Rosemary Nelson's death with an

3 investigation in rural Essex. It is very difficult to

4 deal with victimology when the merest suggestion against

5 the victim may cause severe problems. Collusion, like

6 murder, requires evidence. The problem is finding that

7 evidence. It is very easy to speculate, but the acid

8 test is whether there is any evidence to support that

9 speculation."

10 Now, his involvement in the investigation was short

11 but it may be that those comments are in fact telling,

12 because one of the benchmarks that Mr Ayling applies

13 himself to is the murder investigation manual on which

14 such emphasis is made.

15 We submit that that in itself may be a flawed

16 benchmark. After all, I ask the question rhetorically,

17 what kind of benchmark is it -- a manual, that is -- as

18 a document if it has nothing in it to say about how to

19 investigate terrorism, collusion or how to undertake

20 long-term covert operations. But one of the perhaps

21 more telling points on that is that the person who

22 actually wrote the introduction to that manual was

23 Sir David Phillips.

24 In many ways, the views of Sir David Phillips, and

25 indeed the views of the family, have a certain neatness

 

 

56

 

1 and fit together perhaps for this reason: that

2 Mr Phillips and indeed the family on behalf of

3 Mrs Nelson understand the basic problems in

4 Northern Ireland and if it is thought that there is

5 a misapprehension by the appointed expert that that is

6 not fully understood, that affects the weight to be

7 attached to that expert's evidence.

8 Some very short matters of further detail. Some

9 expression is made -- and it was referred to by

10 Mr Phillips perfectly correctly -- about Mr Ayling's

11 criticism about the need to see thought processes. It

12 is often used these days in investigations and

13 subsequent examinations, the term "audit trail". We

14 have become very familiar with it. Sometimes it can

15 seem we are involved in a DTI inquiry rather than

16 a murder investigation.

17 I put that down as a particular note of caution.

18 This is not an inquiry into a company to see whether the

19 various people who were tasked with making the

20 appropriate entries have made them at the right time.

21 There was a continual dialogue in this particular case

22 between the senior officers, et cetera, and the fact

23 that there may at times not be a complete audit trail is

24 not to be taken as there not being those kind of

25 necessary discussions. The fact that there is not

 

 

57

 

1 a daily written log of all the discussions doesn't mean

2 that they were not conducted.

3 Hypotheses has been raised on a number of occasions.

4 Of course, I submit, hypotheses should be challenged,

5 but can it really be seriously suggested that that

6 didn't happen this case? It is our submission that the

7 evidence will show that the SMT did so regularly. You

8 see, one has to be careful in a huge complex Inquiry

9 such as this, that time spent exploring theories which

10 are totally untenable in order to dismiss them is

11 valuable investigation time wasted.

12 And the suggestion -- one or two other matters, I

13 could make reference to. I will be very short, but the

14 suggestion, for example, made by Mr Ayling that other

15 suspects were not considered for technical attack is in

16 fact incorrect. But those are matters of detail that we

17 can comfortably deal with in the course of the evidence,

18 and appraise.

19 It is our submission that the approach taken by this

20 senior investigation team was entirely prudent,

21 appropriate, hard-working. It is not just even

22 a question of doing their best; innovation is used in

23 our outline of evidence and examples have very fairly

24 been put by Mr Phillips of innovative matters that were

25 raised in this Inquiry. There was a real effort and

 

 

58

 

1 a real will behind the murder investigation team to find

2 the perpetrators of this terrible murder.

3 So, sir, concluding, if I may, of course,

4 recognising that this is an Inquiry not a trial, you

5 look for the truth. But the question of due diligence

6 will ultimately involve you making a judgment about the

7 performance, indeed the judgment of these senior

8 officers amongst others.

9 Fairness and balance will dictate, we suggest, that

10 that judgment should look realistically and with a true

11 sense of proportion at the situation that faced Mr Port

12 and all the others from 15th March 1999. If it is

13 approached if that way, in our respectful submission,

14 that is clearly the correct way and that is the basis to

15 which we would attach ourselves.

16 In fact, I would go further: if it is approached in

17 that way, we await, those parties that I represent, that

18 judgment with no sense of complacency but with

19 confidence.

20 Those are the submissions I make on behalf of the

21 murder investigation team.

22 THE CHAIRMAN: Thank you very much, Mr Egan. We will break

23 off for just five minutes or so.

24 (12.08 pm)

25 (Short adjournment)

 

 

59

 

1 (12.15 pm)

2 THE CHAIRMAN: I and my two colleagues on the Panel are

3 grateful to all counsel who have addressed us on behalf

4 of the Full Participants for their helpful and

5 constructive suggestions. The Panel will always welcome

6 proposals which genuinely are designed to help us in our

7 work.

8 Next week, on Tuesday afternoon, the hearings move

9 to a new phase as the first witnesses come to give

10 evidence. I understand that all the Full Participants

11 now have the list of witnesses for next week.

12 Now, I would like to make one or two remarks about

13 this. First, all witnesses will be asked to take an

14 oath or to affirm before giving evidence. Secondly,

15 I stress that all witnesses who come to give evidence to

16 the Inquiry will be treated with respect. They will not

17 be attending to be cross-examined, but to help us with

18 their evidence. Counsel on our behalf will ask

19 questions in a manner which is consistent with the

20 inquisitorial nature of our process.

21 Thirdly, I would like to stress one matter of

22 concern to the Panel. We are conscious, as we have been

23 at all stages of our work, of the fact that the cost of

24 this Inquiry is very considerable and also that it is

25 borne by the public purse. The same is true of the cost

 

 

60

 

1 of the representatives on behalf of the Full

2 Participants and some others. We note that the Full

3 Participants and others have been represented during the

4 opening phase of our work.

5 As we move to the next stage, however, we would ask

6 all Full Participants to have constantly in mind the

7 question of what, if any, representation in the chamber

8 is appropriate at each stage of the evidence. There

9 will be many witnesses called over the next weeks, whose

10 evidence, whilst of value or importance to us, is of

11 little or no direct relevance or interest to some of the

12 Full Participants.

13 The Inquiry will alert all Full Participants of the

14 names of the witnesses to be called on a regular basis.

15 They can of course keep track of the evidence from the

16 transcripts which are posted on our website, and I would

17 urge -- and I hope I don't need to urge -- all Full

18 Participants to have that matter particularly in mind,

19 bearing in mind the great cost of this Inquiry.

20 Well, thank you all for your help and I look forward

21 to seeing those who have a particular interest on

22 Tuesday afternoon.

23 (12.20 pm)

24 (The Inquiry adjourned until 1.00 pm on Tuesday,

25 6th May 2008)

 

 


 

1 I N D E X

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Opening submissions by MR DONALDSON ............. 1
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4 Opening submissions by MR EGAN .................. 33

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