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Full Hearings

Hearing: 30th April 2008, day 12

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ROSEMARY NELSON

PUBLIC INQUIRY

 

 

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


on Wednesday, 30th April 2008
commencing at 10.15 am


Day 12

 

 

 

 

 

 

 


 

1 Wednesday, 30th April 2008

2 (10.15 am)

3 Opening submissions by MR PHILLIPS (continued)

4 THE CHAIRMAN: Yes, Mr Phillips.

5 MR PHILLIPS: Sir, we were looking at Operation George. I

6 had given you some statistics about the relative balance

7 between the murder investigation more generally and this

8 operation and the changes in the balance between 2000

9 and 2002.

10 Sir, coming now to look at the tactics and the

11 management side of things in relation to this operation,

12 one of the points highlighted in Mr Ayling's report is

13 this: that from all of the huge amount of material

14 gleaned from the covert operations, there is not

15 a single admission of involvement in Rosemary Nelson's

16 murder. Indeed, when the subjects of the operation do

17 mention her, as recorded in the product, they state

18 unequivocally that they had no involvement in the murder

19 and blame the British Government and, on occasions, the

20 UFF.

21 Of course, that is not something that the senior

22 officers can in any way be responsible for, but the

23 question posed by Mr Ayling is what their reaction to it

24 was. And he points out in his report -- this is

25 paragraph 10.13.2 -- that there is no evidence that

 

 

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1 during the period between September 1999 and June 2001,

2 no evidence by documented means, of any of these senior

3 officers questioning either (a) the possibility that

4 their targets were not responsible for the murder, or

5 (b) the continuing strategy of trying to it put two of

6 the suspects together in order that they might

7 spontaneously talk about it.

8 He expresses his surprise that there was no

9 documented review of the strategy, no apparent

10 consideration of changing tactics and no fundamental

11 reassessment of the initial hypothesis, and for that

12 reason he concludes that on the material he has seen it

13 would appear that this hypothesis was never changed or

14 altered, and indeed there is no evidence to suggest that

15 it was questioned or challenged.

16 Now, so far as the effect or impact of the operation

17 as a whole is concerned on the murder investigation, the

18 Rosemary Nelson murder investigation, what he says is

19 that that investigation was in fact diminished by

20 Operation George's total concentration on other matters,

21 on the matters where there were admissions recorded in

22 the monitored conversations.

23 Therefore, his conclusion is that whilst the

24 operation may have begun as an investigation, part of

25 the Rosemary Nelson murder investigation, as it

 

 

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1 developed it became an operation against mid-Ulster

2 Loyalist terrorism on a much more general basis. And it

3 is at that point that he also raises the concern

4 I mentioned earlier, namely about resourcing, because

5 whilst a considerable amount of resourcing was going

6 into the operation itself, what he questions is whether,

7 as a result of that, resources devoted to the murder

8 investigation back here in Northern Ireland were

9 sufficient and believes that that was an issue that

10 could and should have been addressed.

11 So although it is possible to view Operation George

12 as displaying many admirable, innovative features and

13 indeed as an operation against mid-Ulster LVF as

14 a success, as he puts it in his report, so far as the

15 Rosemary Nelson investigation is concerned, on

16 Mr Ayling's view it unbalanced the overall position and

17 did not add to the material obtained as part of the

18 Rosemary Nelson investigation and did not advance that

19 work.

20 Now, sir, so far as that is concerned, that is all

21 I wish to say about chapter 10, Operation George.

22 Collusion I can deal with even more briefly because

23 a number of the matters which are set out in chapter 11

24 and which were investigated by the collusion cell are

25 matters that I have already outlined to you under the

 

 

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1 security force activity heading in particular.

2 Here in chapter 11, of course, what Mr Ayling does

3 is not to look at the underlying facts, as we shall be

4 in relation to just a few of them, but rather at the

5 question of whether the collusion cell's work was

6 conducted with due diligence.

7 What one sees in chapter 11 is a number of very

8 familiar topics: the movements of security force

9 personnel over the weekend; particular incidents, for

10 example, involving the helicopters; and what

11 explanations were given for their activity. All of the

12 matters, in short, that I outlined to you yesterday, but

13 considered this time not from the point of view of

14 establishing the facts, of course, but from the point of

15 view of whether that part of the team's work was

16 conducted with due diligence.

17 So far as the outline is concerned, we know that the

18 cell was under the command of Mr Provoost and that there

19 is a detail provided in the outline about their work

20 between paragraphs 144 and 167 at pages 37 to 43 under

21 the heading "Dealing with Allegations of Collusion".

22 As I have explained, the way the cell worked was to

23 investigate whatever allegations came to their

24 attention. So inevitably it became something of a rag

25 bag, if I can put it that way, and there were other

 

 

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1 matters considered in addition to security force

2 activity and the helicopters, for example, those sort of

3 matters that I mentioned to you yesterday.

4 In dealing with them, Mr Ayling concludes, having

5 considered the work on the security force activity

6 aspect, that although there were some criticisms to be

7 made, some areas where he thinks that the investigation

8 could have been more probing, more challenging -- an

9 example occurs in relation to the Land Rover matter at

10 paragraph 11.6.16 of his report -- I am not going to

11 take you to the detail of that -- in general he commends

12 a good deal of the very considerable amount of work that

13 went on, in particular, as you remember, the involvement

14 of an analyst to get to the bottom of huge amounts of

15 detail and material and to establish so far as possible

16 what each and every uniformed officer, police, Army, was

17 doing to ensure that that could be accounted for in each

18 case over the weekend; the extensive and painstaking

19 work not only done by the analyst but by other members

20 of the team he has acknowledged and commended in the

21 report.

22 He draws attention to some limitations. He says,

23 for example, that the decision to limit it to uniformed

24 personnel raises questions. This is paragraph 11, 12,

25 14. And that also takes him on to the question of

 

 

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1 whether there should have been consideration of security

2 force personnel who were not on duty that weekend. And

3 Mr Ayling comments on the question of whether that, to

4 some degree, diminished the otherwise detailed and

5 searching work done by the team.

6 In conclusion, however, in relation to the security

7 force activity, he believes that the work was done to

8 the correct standard, was thoroughly and competently

9 pursued.

10 So far as other matters dealt with by the collusion

11 cell are concerned, I should mention first the question

12 of threats, because it was the collusion cell that

13 examined such evidence of threats as they had obtained,

14 threats allegedly made in the years leading up to

15 Rosemary Nelson's murder.

16 So here also we have an aspect of our work where the

17 Inquiry is considering some at least of these matters in

18 its factual investigation but where, in this chapter 11

19 of his report, Mr Ayling is looking at it from the point

20 of view of due diligence. I am not going to take you,

21 you will be relieved to hear, through all the various

22 threat allegations that were made, considered,

23 investigated. But his view in summary is that the team

24 correctly identified the need to look at all of the

25 threats made to Rosemary Nelson's life in the two-year

 

 

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1 period leading up to the murder and concludes that their

2 work was done to the right standard despite the fact

3 that, as it turned out, there were no productive

4 investigative opportunities as a result.

5 Now, so far as the Mulvihill aspect of the matter

6 goes, he notes the decision not to re-interview the

7 various police officers involved in that Mulvihill

8 investigation, and there he does raise a question

9 because, as he points out, since the time of Mulvihill's

10 work, there had been, on any view, a significant change

11 of circumstances, namely that the object of the threats

12 had been murdered, and therefore questions whether the

13 decision not to interview or re-interview, rather, was

14 correct.

15 However, again taking the matter in the round, he

16 concludes in relation to this area of the team's work

17 that it was conducted to the standard of due diligence.

18 So far as the next chapter I want to look at very

19 briefly, "Reviews", is concerned, I have touched on it

20 on a number of occasions in my own remarks. First of

21 all, I have pointed out to you -- and it is a feature of

22 the outline also -- that the 28-day review conducted by

23 Mr Provoost was an invitation for Northern Ireland and

24 that is acknowledged in the report, and in chapter 13 he

25 goes on to look at various questions considered by

 

 

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1 Mr Provoost in his review, to examine whether the review

2 should also have considered other matters and then to

3 consider two further questions: (a) was the review

4 sufficiently robust in Mr Provoost's own approach; and

5 secondly, what was done to address the matters, such

6 concerns, as were raised in the review subsequently.

7 And I am not going to take you to any detail there, save

8 to say, as I have indicated before, that in short

9 Mr Ayling thinks that this was, or turned out to be an

10 opportunity missed; in other words, that there was more

11 that could have been done to acknowledge the points

12 raised and to make changes, to do something about them.

13 So far as the further reviews, a feature of the

14 investigation, as I have already indicated, was that

15 there were a number of internal reviews, and the senior

16 officers cite this at paragraph 180 of the outline as

17 evidence of the thoroughness and persistence with which

18 the investigation was conducted, namely, as they put it,

19 the culture of reviews.

20 What Mr Ayling says in his report in

21 paragraph 13.8.1, I think it is, is that whilst he

22 acknowledges the value of reviews in general, he says

23 that these internal reviews were not an adequate subject

24 for independent reviews and indeed suggests that the

25 team would have benefited significantly from such

 

 

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1 a review as the investigation moved into its second

2 year.

3 But in this aspect of the work also, having made

4 those points, looking at the matter in the round, he

5 concludes here also that the team used their best

6 endeavours to act with due diligence, and that the

7 standards prevailing at that time guarding, in this

8 instance also, against the dangers of hindsight, were

9 met.

10 Now, that, sir, takes me to the penultimate chapter

11 of the report, chapter 14, and this is headed

12 "Management of the Investigation", and it is one of the

13 chapters that unfortunately we have not been able to

14 distribute to the Full Participants. It is particularly

15 unfortunate in the case of this chapter, because it is

16 here that Mr Ayling expresses his view in respect of the

17 overarching management issues within the investigation,

18 rather than dealing with the more detailed matters

19 covered in the previous chapters. So in a sense, and so

20 far as the senior officers is concerned, much of the nub

21 of his views about the management of the investigation

22 is in fact contained in this chapter.

23 Now, I have already explained to you that Mr Ayling

24 sees the investigation as having three elements: the

25 traditional murder investigation; the investigation into

 

 

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1 allegations of collusion; and Operation George. I have

2 also said that the senior management or the senior

3 officers have presented it in a slightly different way

4 but still with three parts.

5 In Mr Ayling's view, a key responsibility for those

6 senior officers was to ensure that the three elements

7 worked co-operatively, they worked together, and supported

8 each other throughout the course of the investigation.

9 And that is, as it were, the platform for the views

10 which are then expressed in this chapter. I can't say

11 anything about its detail, but it is right to say that

12 in relation to the overall management of the

13 investigation, Mr Ayling has concluded in his report

14 that it fell short of the required standard.

15 Sir, that takes me on to the conclusion chapter,

16 chapter 15. Now, sir, this chapter brings together all

17 of the matters dealt with in preceding chapters of the

18 report. It has been distributed to the Full

19 Participants, albeit in this provisionally redacted

20 form, and what I would like to do, consistent with my

21 time estimate given yesterday, is to take you through

22 this chapter in a little more detail.

23 First of all -- and again, this is to be stressed at

24 all stages when looking at Mr Ayling's report -- he is

25 concerned to acknowledge the achievements of the

 

 

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1 investigation. I have highlighted various examples but

2 this happens again in chapter 15. He says, for example,

3 that on its own terms, Operation George was

4 a significant success, and he refers to the prosecution

5 that thereafter followed. He commends the techniques

6 used in that operation and the way in which it was

7 conducted, and the diligence and indeed the bravery of

8 those officers who were engaged upon it.

9 He has concluded that there is ample evidence that

10 the senior officers were indeed strongly committed and

11 dedicated to finding and prosecuting the murderers of

12 Rosemary Nelson. They wished, he has concluded, looking

13 at all of the material, to succeed in that task.

14 One of the things that one gleans from reading the

15 Ayling Report is how it was that, despite those wishes,

16 despite all of that effort, in that sense there was no

17 successful outcome. There has been no successful

18 outcome in relation to the murder of Rosemary Nelson.

19 Now, he then deals with the question of standards

20 and how to apply them and states his opinion that the

21 intention of the Chief Constable was to introduce an

22 experienced investigation team that would apply and

23 follow the highest standards available.

24 The team that was recruited was led by an ACPO

25 ranked officer, Mr Port, and the most modern and

 

 

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1 up-to-date crime investigation methods were at that

2 stage, in March 1999, to be found in the MIM. And he

3 states -- restates -- his view in this chapter that that

4 document was in reality a record of existing good

5 practice, which had evolved over many years within the

6 police service and was particularly important,

7 therefore, to the senior officers in charge of the

8 investigation as it encapsulated all that they would

9 need to take account of in responding to

10 a terrorist-related murder investigation.

11 Now, he acknowledges that the due diligence test

12 which he has to apply has to be seen in two different

13 ways. As I have explained to you, he has sought to test

14 individual areas of work against that standard, and

15 I have tried going through the various areas to explain

16 to you what his conclusion has been. However, as he

17 points out in this chapter, in reality all of these

18 component parts are interlinked, and therefore, whilst

19 it is possible to make, he believes, due diligence

20 assessments on the individual components, it is a very

21 different matter to then decide, having reached

22 individual conclusions on the separate components,

23 whether the overall investigation met that standard.

24 As I have also explained to you, he recognises,

25 states explicitly in this paragraph, that (a) even in

 

 

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1 so-called successful investigations there may be aspects

2 which fall way below the right standard of work. But

3 equally, it may be possible for an investigation to be

4 conducted thoroughly in accordance with the right

5 standards and yet, for whatever reason, the

6 investigation does not result in what in these terms I

7 would call a successful outcome, namely the prosecution,

8 successful, of someone for the crime, despite work being

9 done to that standard.

10 The difficulty here, therefore, is in trying to

11 weigh all these matters in arriving at an overall

12 conclusion, being particularly wary of the dangers of

13 hindsight; that is paragraph 15.7.5. When you are

14 looking at the overall position, you may find that some

15 elements have been completed to a very high standard

16 indeed and that others may be deficient for a number of

17 reasons. And thus he sets out in this chapter how he

18 has considered this general issue and what conclusions

19 at this point he is able to reach.

20 Now, the way he does it, which begins in

21 paragraph 15.8, is to start by looking back at the

22 basics: what are the basics of any well-conducted murder

23 investigation? Sir, there is no substitute here for the

24 text itself, which is at page 670 of the report. What

25 he says at the bottom of that page, in the first of the

 

 

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1 bullet points is:

2 "Guarding against the acceptance of assumptions and

3 rigorously challenging the assumptions made by others."

4 The next bullet point:

5 "Developing different hypotheses and then seeking to

6 validate or eliminate them.

7 "Robustly developing a victimology line of enquiry.

8 "Validating intelligence, particularly where it is

9 to be heavily relied upon.

10 "A robust suspect management policy particularly in

11 regard to the implication or elimination of suspects."

12 And finally:

13 "The constant re-evaluation of the progress and thrust

14 of the investigation, prioritising lines of enquiry and

15 focusing resources into the most productive areas of

16 investigation."

17 Looking at how that is to be carried out in

18 practice, the first point he makes, paragraph 15.9, is

19 that this case required above all others the discipline

20 of a properly and thoroughly maintained policy file.

21 That is basic and fundamental. And the absence of it,

22 in his view, in this case has not thus far been

23 adequately explained.

24 The file and policy file and the secret policy file

25 that were kept contained many entries that do not meet

 

 

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1 those standards. Also, there is an absence in the

2 policy file of many important and fundamental

3 considerations which must or at least should have

4 exercised the senior management of the investigation.

5 And again, sir, in that paragraph, 15.9.1 -- and I am

6 not going to read these out -- he gives some examples of

7 that.

8 He then develops his analysis in paragraph 15.10;

9 some of the points there I have touched upon. But he

10 says that:

11 "Whilst some of the failings and shortcomings which

12 have been identified earlier in the report ..."

13 In relation to lines of enquiry, the murder incident

14 room, telephone analysis, suspect management -- whilst

15 they were not in his view fatal to the success of the

16 investigation, they do in his view provide evidence of

17 a common theme running throughout the investigation and

18 that is a lack of supervisory rigour to recognise, to

19 deal with poor standards and the apparent lack of senior

20 management intervention to deal with emerging issues

21 that threatened the longer term health of the

22 investigation.

23 Here, again, we come to, as it were, the fork in the

24 road, because what he says is: if the investigation had,

25 as its object, targeting the mid-Ulster LVF, then the

 

 

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1 lines of enquiry which were pursued, were pursued with

2 diligence and the result was successful. However, that

3 was not in fact the purpose of the investigation, and it

4 is this divergence which he traces and stresses in this

5 section also of his report at 15.10.4; because the

6 result, as I have said, of Operation George in

7 particular was that it did not uncover any direct

8 evidence to implicate those who were the focus of the

9 murder investigation team's attention.

10 Now, that takes him, in paragraph 15.10.5, to the

11 theme I have mentioned already about the single

12 hypothesis. He suggests in short that there were other

13 possibilities, other individuals who should, who could

14 have been considered and that by confining their

15 interest in the way that they did, the team limited

16 their opportunities, not least their opportunities to

17 make the maximum use of intelligence in the possession

18 of Special Branch, and that is a topic to which I will

19 return in a minute.

20 What he says in short is that whereas the initial

21 focus on the hypothesis and on the individuals within it

22 was justified, what went wrong in short is that that was

23 never reassessed; it was never reconsidered. So the

24 focus remained where it was, whereas the material that

25 was emerging did not support that focus and, indeed,

 

 

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1 appeared to undermine it.

2 That, as far as he is concerned, remains one of the

3 areas where explanation is still required. From all of

4 the material that has been examined during the

5 assessment process, the Ayling assessment process, the

6 question remains unanswered why the team continued to be

7 so convinced of the correctness of their focus. The

8 documents do not explain why other suspects were not

9 pursued, for example, as potential targets for covert

10 attack.

11 Sir, that takes us into a broader point about

12 documentation and the material he has been able to

13 consider, because in the absence of documentation about

14 the state of knowledge of the team and in particular of

15 the senior management at critical stages of the

16 investigation when key decisions relating to its focus,

17 course and progress would have been taken, is

18 a substantial difficulty in trying to assess this

19 overall question of due diligence. And so throughout

20 the report, you will see, he returns to this issue of

21 who in the team at that level knew what, how they

22 received information, whether they questioned it, to

23 what extent it did affect their thinking and how it did

24 impact upon their priorities. And because of the state

25 of the documentation -- I have mentioned the policy

 

 

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1 file, for example, I have mentioned the absence of

2 material of this kind in relation to Operation George;

3 they are just some examples -- he is left still with

4 some questions which he sets out in chapter 15.

5 For example, he has not been able to ascertain why

6 it was that they appear to have adopted the fixed view

7 that victimology, as a line of enquiry, was not

8 justified, and even if it had been pursued it would not

9 have uncovered anything. His point, simple point, is of

10 course: unless you explore the matter, unless you pursue

11 a line of enquiry, it is impossible to know whether it

12 would in fact produce any investigative opportunities.

13 And that is why he returns in this chapter to this point

14 about victimology and the need for rigorous pursuit of

15 it as a line of enquiry.

16 Now, that takes him to the significant failings

17 which he has identified in the course of the earlier

18 chapters. And they are: the reliance upon the single

19 hypothesis, not re-evaluating it in the light of

20 emerging evidence during the course the investigation;

21 not pursuing victimology as a line of enquiry; and not

22 considering other suspects where there was information

23 which indicated a possible involvement; and finally, the

24 failure to challenge assumptions, and that is

25 paragraph 15.10.9.

 

 

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1 He regards them as significant, as he explains,

2 because they go to the very heart of the murder

3 investigation; indeed, as they would, he points out, in

4 any murder investigation and led, in his view, to lost

5 investigative opportunities that might have opened up

6 productive lines of enquiry.

7 Now, he observes that if the task he had been

8 undertaking had been a review, an independent review in

9 the conventional way, of course there could have been

10 dialogue between him and the relevant senior officers,

11 as there was, for example, as we have seen, in the

12 context of the 28-day review. But that, because of the

13 Inquiry's procedures and the way the matters had to be

14 handled within those procedures, has not been possible.

15 That is not in any sense a criticism, of course, of the

16 senior management team, nor indeed of Mr Ayling; it is

17 a fact.

18 But the result is that there are, and remain, issues

19 to which he does not know answers and which, in his

20 view, will determine his final conclusion on whether

21 overall the investigation was conducted with due

22 diligence; and he lists them at this section of his

23 report, 15.10.11 on page 675. This is a redacted

24 paragraph. So sticking with those subparagraphs which

25 emerge:

 

 

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1 "(a) Details of briefings provided by Special Branch

2 to the murder investigation team."

3 Then:

4 "(c) Other hypotheses considered.

5 "(d) The similarity or otherwise of the

6 Rosemary Nelson device ..."

7 UVIED, I should have said a long time ago, is the

8 snappy acronym for this type of device:

9 "... with other Loyalist devices."

10 Sir, I just want to say a little bit about each of

11 those because they are fundamental to his final position

12 which, as you will have gathered by now, is to say that

13 the final view, so far as the overall conduct of the

14 investigation is concerned, will have to await

15 information, clarification on these matters.

16 First, the briefings. It is apparently from the

17 material he has seen that Mr Port and later Mr Provoost

18 received verbal briefings from Special Branch. However,

19 as he puts it, he is largely -- this is the word he

20 uses -- unsighted to the extent, quality and

21 significance of what information was given to the murder

22 investigation as a result.

23 As I have shown you, the Terms of Reference given to

24 Mr Port should on their face have afforded him access to

25 all relevant intelligence material in the possession of

 

 

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1 the RUC or PSNI. However, Mr Ayling is unaware of the

2 totality of the intelligence which was sought, both at

3 the outset and as the investigation unfolded, and also,

4 he is, as he puts it, unsighted as to what tasking of

5 Special Branch assets, if any, took place and what

6 intelligence was subsequently made available to the

7 team.

8 What he says here in paragraph 15.11.2 is that he

9 has been unable to discover why it is that the murder

10 investigation team maintain that there was a consistent

11 and regular assessment by Special Branch that the

12 mid-Ulster LVF was responsible for Rosemary Nelson's

13 murder. He has found no documentary record that this

14 assessment was regularly provided to the team, nor has

15 he seen evidence of such supporting intelligence.

16 Now, sir, that takes me to a fundamental point made

17 in this report, one of the points made in this context

18 I made to you right at the outset of my submissions, and

19 it is paragraph 15.11.3. What he says is that his team

20 has been struck by the fact that there was apparently no

21 intelligence in the possession of Special Branch before

22 Rosemary Nelson's murder to indicate that she was

23 a specific target.

24 But he goes on to say this:

25 "Furthermore, there is a dearth of quality

 

 

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1 information after the murder indicating who might have

2 been responsible."

3 And he expresses his view about it in these terms:

4 "This is remarkable considering the raison d'etre of

5 Special Branch was to focus on those currently suspected

6 of being engaged in terrorism and the efforts that went

7 into recruiting human sources on both sides of the

8 divide.

9 "This, in the assessment team's view, amounted to a

10 prima facie intelligence failure of significant

11 proportions and what explanation was offered in respect

12 of this failure by Special Branch to the RUC's

13 Chief Constable, Ronnie Flanagan or to Deputy

14 Chief Constable Port, is unknown to the assessment

15 team."

16 Sir, I am going to pause here because this plainly

17 is a matter of importance to the Inquiry and that

18 importance goes beyond the pure question of due

19 diligence.

20 Now, as I have explained to you, in our current

21 procedural position I have not been able to open to you

22 the part 2 material, including the Special Branch

23 material. But you may think that these comments by

24 experienced police officers are significant and they

25 raise questions which are questions essentially of fact,

 

 

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1 going to the material that has been disclosed to the

2 Inquiry and what it shows both before and after the

3 murder, and links plainly with the other issues I raised

4 in my opening submissions, namely about the sufficiency,

5 the completeness of that disclosure.

6 But it also raises the point on which there is, as

7 far as we have been able to ascertain, no material

8 whatever so far disclosed to the Inquiry, dealing with

9 internal reaction to this event and the specific point

10 I have raised with you by quoting Mr Ayling, namely:

11 "What explanation was offered in respect of this

12 failure by Special Branch to the RUC Chief Constable or

13 to Deputy Chief Constable Port is unknown."

14 Now, sir, so far as the question of the relationship

15 between the team and Special Branch is concerned, I

16 should draw to your attention a section on this in the

17 outline. It begins at the bottom of page 35 in

18 paragraph 138 and stress is there laid by the officers,

19 the senior officers, first on the unique policing

20 environment -- I touched on that -- and the

21 circumstances in which Special Branch had operated for

22 the past three decades or so. And you will see that

23 Mr Kincaid, who, as I have explained, has a great deal

24 of experience, will give evidence about this from the

25 point of view of an experienced SIO and, as we know, an

 

 

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1 experienced police officer outside Special Branch. And

2 it was he -- you will see continuing the outline -- who

3 put in place the significant changes in this area within

4 the PSNI in his role as Assistant Chief Constable.

5 But he then describes -- or the outline then

6 describes the fact that Special Branch was completely

7 separate from uniform and CID elements. Its priority

8 was gathering national security intelligence rather than

9 evidence and there was no automatic dissemination;

10 points I have shown you earlier in my opening of the

11 report.

12 What he then goes on to say, or the outline goes on

13 to deal with is, in paragraphs 140 to 143, what happened

14 in this particular case. It is said that:

15 "The senior officers asked for far more extensive

16 information than had ever previously been requested by

17 a criminal investigation. There were early meetings

18 with senior Special Branch personnel following Mr Port's

19 arrival in Northern Ireland. They were all part of the

20 necessary building of relationships.

21 "It was of great importance that Special Branch

22 should learn to trust him [Mr Port] and to have

23 confidence that the material that they were making

24 available to him would be handled appropriately given

25 its potential sensitivity. Mr Port was aware that the

 

 

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1 role of Special Branch in Northern Ireland was quite

2 different from in any other police organisation in the

3 United Kingdom. He was acutely aware that

4 Special Branch had been operating to practices and

5 systems which were unique in the UK context to

6 Northern Ireland. There were immense pressures on those

7 who undertook this demanding and often dangerous area of

8 policing work. He was not surprised if Special Branch

9 officers were cautious in their initial dealings with

10 them, as he was to them then a completely unknown

11 quantity.

12 "The relationship between the MIT and Special Branch

13 was not without its difficulties. There were times when

14 both Mr Kincaid and, later, Mr Port found it very

15 frustrating indeed and had to push very hard to get the

16 information they wanted.

17 "Of equal concern is the recent discovery that some

18 Special Branch intelligence had not been disclosed to

19 the MIT at the appropriate time. Mr Provoost has only

20 recently become aware of the existence of this material.

21 The Inquiry has a statement from Mr Provoost dealing

22 with a specific aspect of his recent discoveries."

23 Now, sir, it is important to show you and read these

24 passages because they bear directly on this question of

25 the relationship between Special Branch and the murder

 

 

26

 

1 investigation team. And that, so far as Mr Ayling is

2 concerned, is something that he of course is looking at

3 from the point of view of due diligence: What was the

4 material that was provided, how was it assessed, how was

5 it acted upon, could more have been done, was the right

6 information processed and acted upon, et cetera.

7 But plainly there are, so far as the Inquiry is

8 concerned, other issues here. In particular in this

9 paragraph 143, at a later stage when the relevant

10 statements and information has been disclosed, it will

11 be possible to consider in much more detail these and

12 similar questions.

13 So far as Mr Provoost is concerned, I can confirm

14 that the Inquiry does indeed have a witness statement,

15 and the statement and the issues which are raised in the

16 statement are being considered. And the Inquiry will

17 decide, when that consideration has been completed, what

18 further requests for information and disclosure should

19 be made, and I am not here only considering or referring

20 to the murder investigation team but PSNI.

21 Now, sir, so far as the conclusion chapter,

22 chapter 15, is concerned, returning to the issue of due

23 diligence, he points out, as I have said, that he does

24 not know -- this is paragraph 15.11.6 -- the totality of

25 the information which was given within Mr Port's terms

 

 

27

 

1 of reference. And he raises a fundamental question:

2 What was Mr Port's level of confidence that

3 Special Branch had provided him with all of the

4 intelligence that was potentially available, and did he

5 have any cause to believe that something was held back.

6 And he also refers in the report to evidence, as he puts

7 it, of some tension and mistrust between the team on the

8 one hand and Special Branch on the other, that required

9 the personal intervention of the Chief Constable. And

10 that is, you may think, the sort of point referred to

11 here in paragraph 143 of the senior officers' outline of

12 evidence.

13 Now, that all said, the degree to which there were

14 difficulties, concerns, material not handed over,

15 et cetera, is something on which at this stage Mr Ayling

16 is unable to express a view or arrive at a conclusion,

17 as I have said. And that is one of the reasons he gives

18 for his overall position, which is that he cannot assist

19 you at this stage with a concluded view on due diligence

20 in relation to the overall conduct of the murder

21 investigation.

22 The other points which he mentions in this

23 connection are first of all the question of other

24 hypotheses, because as I have said to you, he has

25 identified an absence, a dearth of material, evidencing

 

 

28

 

1 consideration, reviewing, reconsideration, decisions

2 made, and so it is not clear to him how the hypotheses

3 were addressed and why it was, as I have said before,

4 that the single focus appears to have remained.

5 Now, in that connection he also deals with what

6 emerged or, as he would say, what didn't emerge from

7 Operation George and raises the particular question,

8 15.13.3, about what emerged during that investigation on

9 other crimes, including murder, namely that the targets

10 of the operation were apparently willing freely to

11 discuss their involvement in such other matters, but not

12 at all, at any stage, to refer to or accept their

13 involvement in Rosemary Nelson's murder. And that is

14 something that the documentation does not assist in to

15 understand how that was assessed and why it was, despite

16 that, that the focus remained as it was.

17 Now, the final aspect where there are matters still

18 to be clarified relates to the similarity of devices.

19 And again, what he says is that there was an absence of

20 material dealing with what he regards as being the

21 obvious questions raised by the differences, raised by

22 the material which was coming in to the murder

23 investigation team and which appeared to cast doubt on

24 that theory.

25 So, sir, at the end of all of that, as I say, he

 

 

29

 

1 concludes that, doing what he can on the material he

2 has, he does not feel able to form an overall judgment

3 at this stage. What you do have, of course, is the

4 individual judgments in each and every chapter in

5 relation to the individual areas of the investigation,

6 which he has considered.

7 Now, sir, so far as the murder investigation team

8 was concerned, in relation to this chapter in

9 particular, I have done what I can at this stage to set

10 out both sides of the argument. In relation to the

11 conclusion in particular, of course most of what I have

12 said has been to refer you to the way Mr Ayling

13 expresses the matter in his report, in the final

14 chapter. That is because, sir, as I have explained, the

15 material we have at this stage which, so far as this is

16 concerned, is the outline, does not deal with that sort

17 of level of point as raised in this report. And so

18 although I very much would have wished to do so in this

19 aspect of the Inquiry's work, as with all the other

20 matters I have covered in my opening, to set out all the

21 arguments, to set out both sides of the story, there is

22 a great limitation on what I can do for you.

23 What I can tell you is that in the outline at

24 paragraph 11, the position of the senior officers is

25 that this was a thorough and innovative investigation,

 

 

30

 

1 pursued with determination and dedication and that they

2 will give evidence to support that view, they will say

3 that the due diligence standard was not only met but

4 surpassed.

5 Then in the summary at the very end of the document,

6 they set out various points which I have already taken

7 you to. Having set the investigation in its context, as

8 they see it, they stress its unique nature, as I have

9 shown you, and stress their absolute determination,

10 accepted by Mr Ayling, as I have indicated, to find the

11 murderers; paragraph 181.

12 They say in terms it is a bitter disappointment to

13 them that those responsible have not been brought to

14 justice for her murder. However, they make the point,

15 you may think a very fair point, that three persons have

16 been convicted of unrelated but various terrorist

17 offences including murder and have received substantial

18 terms of imprisonment.

19 Then this:

20 "The investigation considered all reasonable

21 possibilities. The evidence that unfolded meant that it

22 was inevitable that it had as its focus Loyalist

23 terrorist groups and the LVF in particular. A few

24 individuals from this organisation remain as core

25 suspects.

 

 

31

 

1 "The circumstances of this murder presented huge

2 challenges to the investigating team. Mr Port,

3 Mr Provoost, Mr Kincaid and [M540] will maintain that

4 the way these challenges were met will provide powerful

5 support for a conclusion that the test of due diligence

6 was not only met but exceeded."

7 Sir, that, I hope, fairly sets out what is contained

8 in this open, written document on these general issues,

9 and that concludes, therefore, what I wish to say about

10 due diligence, which in turn brings me to the very end

11 of my submissions.

12 Of course, they have lasted longer than I had hoped

13 that they would -- than I am sure everybody in this room

14 had hoped that they would. They have been, believe it

15 or not, an outline, an outline only, of the issues which

16 you have to consider and which will be covered in the

17 evidence over the next weeks and months, and they are

18 also incomplete, as I say, because of the procedural

19 difficulties we have encountered and the fact that,

20 sadly, it has not been able to distribute some

21 significant material to the Full Participants.

22 I hope, however, that at least some light may have

23 been shed on those questions which we can proceed to

24 consider over the next weeks and months.

25 THE CHAIRMAN: Thank you very much indeed, Mr Phillips.

 

 

32

 

1 Mr Arthur Harvey, a matter has arisen which the

2 Panel must deal with as a matter of urgency. Would it

3 be very inconvenient for you if we began hearing your

4 response at quarter past 12.

5 MR HARVEY: Not at all.

6 THE CHAIRMAN: Thank you very much. We will adjourn until

7 quarter past 12.

8 (11.15 am)

9 (Short adjournment)

10 (12.15 pm)

11 THE CHAIRMAN: Yes, Mr Harvey.

12 Opening submissions by MR HARVEY

13 MR HARVEY: Firstly, might I say that the family of

14 Paul Nelson deeply appreciate the nature and extent of

15 the work that has been undertaken by this Inquiry. He

16 also appreciates that however important the public

17 hearings are -- and they are -- that they form only

18 a part of the work of this Inquiry, and that the work

19 that it has undertaken has been masterfully and

20 comprehensively set out by counsel to the Inquiry with

21 a clarity that no one could have imagined possible when

22 they were presented with the amorphous amount of

23 material that has been collected by this Inquiry.

24 You might say that the terms of the Inquiry and the

25 methodology --

 

 

33

 

1 THE CHAIRMAN: If you don't mind me interrupting, but

2 LiveNote is saying you are inaudible.

3 MR HARVEY: It is something my wife has sought for years to

4 achieve. It is a pity that she isn't here to

5 witness it.

6 I am not certain if they can hear me now, but what

7 I respectfully accept is the methodology that was

8 proposed for dealing with the issues in this Inquiry,

9 namely that it is an inquiry. Because it is an inquiry,

10 it's an inquiry into the truth insofar as it is

11 ascertainable from the evidence which is existing and

12 presented to the Tribunal, and can achieve no more than

13 that.

14 The family of Paul Nelson are interested only in the

15 truth. What I respectfully accept is that the truth is

16 a robust though sometimes incomplete phenomenon. The

17 best way to obtain the truth is by the abandonment of

18 traditional methods of adversarial procedures.

19 Unfortunately, one of the casualties, and perhaps a

20 necessary casualty, of an adversarial procedure is the

21 treatment of witnesses with respect and courtesy. That

22 perhaps is the inevitable consequence of the fact that

23 one is not seeking the truth in an ordinary adversarial

24 process. One is seeking what can be established by

25 provable fact.

 

 

34

 

1 Sometimes, when one is seeking for the truth, the

2 adversarial procedure is an obstacle rather than a path

3 of enlightenment.

4 So as far as Paul Nelson is concerned and my

5 instructions are, we are here to facilitate the Inquiry

6 into its Terms of Reference and appreciate that those

7 Terms of Reference will mean painfully surrendering to

8 this Inquiry the duty that it has of establishing the

9 truth without confrontational questioning of witnesses,

10 that these events go back some ten years, that each

11 witness is entitled, however different his recollection,

12 his views or his interpretation of facts, to have his

13 views expressed in a calm and reflective atmosphere, as

14 is every witness, and then it is for the Inquiry to make

15 determinations as to what its findings are.

16 I respectfully submit my function in opening this

17 has been greatly eased by the way that this matter has

18 been opened by counsel to the Inquiry. Counsel to the

19 Inquiry has set out the issues that arise from the

20 material which is before the Tribunal. He has not

21 sought in any way to establish what the outcomes will

22 be, but merely the considerations that have to be taken

23 into account in the determination of outcomes.

24 What I respectfully submit is that that cold but

25 illuminating eye of objectivity is one which commends

 

 

35

 

1 itself to the family of Paul Nelson. And what

2 I respectfully submit is that there are unbridgeable

3 gulfs between recollections, between interpretations and

4 indeed between just simply the facts. They may remain

5 unbridgeable and we accept that, but there are wider and

6 larger truths that specific facts can speak to. And

7 those, I respectfully submit, can be revealed.

8 When it comes to dealing with these issues, these

9 issues that arise are not arising for the first time in

10 the history of Northern Ireland. The first issue that

11 has been set out in relation to the Terms of Reference

12 is quite simply: did Rosemary Nelson's work for her

13 clients create conflict with the Royal Ulster

14 Constabulary, the NIO, the Army or other state agency

15 and, if so, why and to what extent?

16 With respect to that particular issue, it again has

17 to be broken down into two separate components. There

18 firstly is -- and it has been addressed by this Inquiry

19 in the material that it has sought -- that there was

20 conflict in the work of solicitors with one specific

21 area of police work in Northern Ireland, namely the

22 interviewing of persons who were suspected of the most

23 grave crimes and detained under the Prevention of

24 Terrorism Act. That was not specific to Rosemary Nelson

25 but it applied to Rosemary Nelson.

 

 

36

 

1 Issues in relation to this were initially considered

2 in 1979 in the Bennett Report. The Bennett Report was

3 initiated after a number of police medical officers, who

4 were responsible for the supervision of prisoners and

5 their medical needs in both Castlereagh and Gough, and

6 those medical officers detected an increase over

7 a period of some time between 1977 and 1978 of

8 inexplicable injuries which were appearing on detainees.

9 As a result of that, they brought their concerns to the

10 Secretary of State, who initiated an Inquiry.

11 That particular time was also a time of change in

12 England generally, concerning the rights of persons who

13 had been detained. There had been the Sir Norman Fisher

14 Report, which was dealing with the Judge's Rules, which

15 followed upon a case involving a death, where a number

16 of young boys had been detained and made confessions.

17 They had not had the Judge's Rules applied to them with

18 the rigour to which they were entitled; they confessed

19 to offences which it later transpired after the

20 publication of the Fisher Report that they had not

21 committed.

22 It was the Maxwell Confait case, the burning to

23 death of a homosexual in his home in London, and it

24 appeared that three young boys, including one who was

25 mentally handicapped, were suspects. One of the

 

 

37

 

1 problems that arose in that case was the knowledge of

2 the English police forces as to the Judge's Rules and

3 how they applied.

4 Those were the only provisions which applied in

5 Northern Ireland. Eventually that led to the 1984 PACE

6 Act in England which we did not have until 1989. What

7 was quickly established by the Bennett Report was if the

8 Judge's Rules governed the detention of suspects in the

9 holding centres, they were simply never applied with any

10 form of discretion. They were applied invariably to

11 deny access to it a solicitor of a detained person.

12 That, it would appear to the Bennett Committee which

13 conducted its inquiries, was simply unacceptable,

14 because it wasn't a true discretion, because it was

15 always exercised in the one way. That conflict between

16 solicitors and the police conducting their

17 interrogations was heightened in Northern Ireland, as

18 has already been indicated, because of the provisions of

19 the original Emergency Provisions Act and the Prevention

20 of Terrorism Act.

21 The Emergency Provisions Act in Northern Ireland

22 made admissible any confession made during the course of

23 an interrogation lasting up to seven days in a holding

24 centre, unless there was prima facie evidence that it

25 had been obtained by torture or inhuman or degrading

 

 

38

 

1 treatment. And when the Act came to be amended, it

2 included violence or threats of violence. So the onus

3 was on an individual who was detained and made

4 a confession to produce prima facie evidence that his

5 confession had been obtained by the use of means which

6 would offend international standards of behaviour.

7 That, in no other part of the United Kingdom, existed.

8 Now, the one thing that my instructions are clear on

9 is that there is not to confuse the few with the many,

10 that, because members of any disciplined force behave

11 badly, it is not a reason for condemning everyone within

12 that force. But it behoves organisations which are

13 based upon strict disciplines to ensure that the few who

14 breach the rules do not seek to mask their activities

15 behind the noble behaviour of the majority.

16 In respect of dealing with this particular matter,

17 it of course must be acknowledged that the police were

18 operating within the strictures of the law as they found

19 it. And the law as they found it placed them in

20 a position where they had to go into interrogations with

21 a specific purpose of obtaining admissions from

22 individuals who would be reluctant to admit their

23 participation in crime.

24 When police were interviewed during the course of

25 the Bennett Report, one thing was quite obvious: that

 

 

39

 

1 whatever the official line in relation to the exclusion

2 of solicitors until a person was charged, the

3 actualities on the ground were that the police

4 recognised that the sole function of a solicitor

5 attending at an interrogation centre would be to advise

6 his client to say nothing unless there was specific

7 admissible evidence against him, and that ran contrary

8 to the objectives of the interrogation.

9 So what you had was irreconcilable tensions which

10 were recognised by the police and recognised by the

11 solicitors. So in terms of Rosemary Nelson's work,

12 undoubtedly her work did bring her into conflict with

13 that one area of the police.

14 The recommendations that came out of the Bennett

15 Report were quite simply that there should be no right

16 to deferral after 48 hours. A person should have an

17 absolute right to consult a solicitor. As it is, the

18 law developed and did develop, as it has in England,

19 considerably over that period of time. Indeed, when one

20 looks back historically from the position we are now in,

21 where all suspects have both video and audio recording,

22 one wonders why there was such dispute going back even

23 ten or 20 years ago.

24 The only persons who benefited from the absence of

25 video and audio were individuals who wished to make

 

 

40

 

1 false claims and police officers who wished to break the

2 rules.

3 But ultimately -- and one sees it within the

4 complaints procedure -- also the Bennett Committee

5 considered the complaints procedure and, surprisingly,

6 in spite of the findings of the medical officers, not

7 one police officer had ever been disciplined for his

8 misbehaviour during the course of interrogations, though

9 substantial sums of money had been paid out in the

10 course of civil settlements.

11 The problem with the complaints procedure then was

12 identified by the Bennett Report: that no one had

13 confidence in it. He recommended changes and eventually

14 we arrive at the position where, in 1998, one has the

15 Independent Commission for Police Complaints.

16 But what hasn't changed and didn't change over that

17 period of ten years were attitudes. The attitudes were

18 that the only good solicitor to an interrogator's mind

19 would be a solicitor who would enter into Castlereagh or

20 Gough and tell his client "you ought to confess".

21 Anything else was an impediment to their work.

22 The problem with Rosemary Nelson's work is that

23 Rosemary had no background in criminal litigation. When

24 she established herself as a solicitor, her

25 apprenticeships and her background had not grounded her

 

 

41

 

1 for the delicacies and, indeed, on occasions the

2 enormously difficult decisions that one has to make.

3 In 1993, she was engaged by Colin Duffy and if ever

4 a solicitor was introduced to the difficulties of the

5 criminal law, the Colin Duffy case was undoubtedly

6 a very difficult baptism.

7 Much has been made of the Colin Duffy relationship,

8 solicitor/client. That undoubtedly caused not simply

9 the general antagonisms that existed between solicitor

10 and client, it in an egregious way established Rosemary

11 in the minds not only of those who were interrogating

12 but those who were responsible for the general

13 investigation of crime in the Lurgan area. It had

14 perhaps some of the most unusual twists and turns in

15 a criminal case.

16 The evidence against Colin Duffy was primarily that

17 of two witnesses, both known by ciphers, B and C; both

18 identifications, both over a very short period of time,

19 less than seconds. The principal witness would have

20 been witness C. Initially, a decision had been made by

21 the prosecuting authorities that he should be both

22 anonymous and screened from the public but not from

23 counsel. And the papers were redacted to accord with

24 that decision, and indeed confirmed by the court.

25 However, due to inadvertence, his name was disclosed

 

 

42

 

1 to Mrs Nelson. So Mrs Nelson was immediately able to

2 identify who he was. As a result of that, the

3 prosecuting authorities were firstly informed that that

4 had occurred in order to take whatever steps they deemed

5 necessary for the protection of that witness. And only

6 after that had occurred -- and she was assured that she

7 could make such use of that information as was

8 necessary -- a private detective was employed.

9 Within a week, the private detective returned all of

10 his instructions, having been indicated, he was told by

11 the RUC, that Mr Lindsay Robb was a man of impeccable

12 character and that any enquiries into his background

13 were unnecessary. As it transpired, he was employed as

14 a printer in a local newspaper and had published an

15 article indicating his background in Loyalist politics,

16 setting forward his views on the way forward and

17 indicating that in fact he had been a member of the

18 deputation to Stormont.

19 When he came to give evidence, his evidence -- in

20 fact, I have been unable to locate the judgment but

21 I hope that I will be able to locate the judgment.

22 Apparently, it is locked in some building somewhere in

23 Northern Ireland and is still capable of retrieval.

24 But his evidence primarily was that over a short

25 period of time, he had seen a person riding a bicycle

 

 

43

 

1 who had cut across his path in a local park, and

2 although he was not able to identify the person by

3 height, by description of facial features, by hair, by

4 build, by complexion, he was certain it was the

5 defendant, Colin Duffy. And the judge accepted his

6 evidence.

7 The judge accepted his evidence because he found him

8 an honest, reliable witness who was dependable. He was

9 convicted on 5th July 1995. Lindsay Robb was

10 subsequently convicted in December 1995 in Scotland for

11 seeking to obtain arms on behalf of the UVF.

12 Now, the difficulties that that immediately gives

13 rise to are this: at his trial, a member of the RUC

14 appeared to give evidence for him. During the time he

15 was giving evidence in the court against the defendant,

16 Duffy, he must have been under surveillance and

17 enquiries must have been made in relation to his

18 activities, which were concealed from the court.

19 Once he was convicted, naturally the first step that

20 Mrs Nelson took was to write to the Crown seeking access

21 to all information of which they were in possession

22 through whatever agency as to Mr Robb's activities and

23 how he could have been presented as an honest witness

24 before a court.

25 Now, that undoubtedly gave rise to difficulties for

 

 

44

 

1 the Crown. The Crown had to decide if they were to

2 proceed with his evidence, they would have had to make

3 disclosures. If they were to abandon his evidence, then

4 no disclosure was necessary unless Mr Duffy chose to

5 take a civil action. The Crown took the course that

6 in June of 1996 they indicated to both Mrs Nelson and to

7 the court that they did not intend to rely any further

8 on the evidence of Mr Robb, as a result of which, the

9 evidence concerning Colin Duffy was reduced to one

10 witness. The judgment is available and I believe the

11 Tribunal do have it.

12 The Court of Appeal released Mr Robb on the basis

13 that the evidence of the remaining witness was not

14 sufficient to establish a prima facie case against him

15 because the quality of the identification evidence was

16 so poor.

17 Lindsay Robb, having served part of his sentence in

18 Scotland, was transferred back to Northern Ireland where

19 he then entered the prison system here. And he entered

20 the prison system here as a member of the LVF. When he

21 left the prison system, he returned to Scotland, and in

22 2000 he gave an interview to the Sunday Herald, the

23 Scottish paper, and a journalist called Neil MacKay.

24 And in the course of that interview, he indicated that

25 he had never seen Mr Duffy at any stage, that he had

 

 

45

 

1 been recruited by Special Branch and he had been

2 recruited by Special Branch through the Loyalist

3 paramilitary organisations on the basis that they were

4 looking for someone with a clean background who could

5 give evidence against Colin Duffy.

6 Now, whether or not those allegations are true,

7 I have simply no way of knowing, but it would appear

8 that some officer on behalf of the Ombudsman in

9 Northern Ireland travelled to Scotland to interview

10 Mr Robb. What the outcome of that was is unknown, but

11 Mr Robb, unfortunately, was himself killed and the

12 person who killed him was sentenced to seven years for

13 manslaughter.

14 So what one immediately has within what appears to

15 be a simple identification case involving two witnesses

16 of impeccable character, and one immediately enters into

17 a realm whereby anyone involved will immediately attract

18 a substantial degree of media attention.

19 The media attention for Mr Duffy would have

20 continued over that particular period of time at his

21 release in 1996, September. But his relationship

22 continued in terms of that of a client, because as has

23 already been indicated and established, he was arrested

24 in June 1997 only having been released from custody less

25 than a year for the murder of Constables Graham and

 

 

46

 

1 Johnston.

2 That was a murder which, again, attracted

3 a substantial and significant degree of publicity, not

4 only for Mr Duffy but for Mrs Nelson. Because again,

5 one has to it look at this in the historical context of

6 what occurred at the time, and undoubtedly in the minds

7 of the investigating officers and undoubtedly in the

8 minds of certain sections of the community, here was

9 a man who had luckily escaped from a murder which they

10 believed he was probably responsible for, namely that of

11 Mr Lyness. He is out on the street quite literally just

12 a matter of months when he is charged with the murder of

13 two further police officers doing their duty on the

14 streets of Lurgan, and he is immediately, therefore,

15 identified, and his solicitor, as an individual

16 responsible for murders but escaping the responsibility

17 in terms of the legal system's inability to deal

18 with it.

19 The murder for which he was arrested was based on

20 the scantiest evidence. On this particular occasion,

21 one has to ask up and until his arrest in June of 1997,

22 Mrs Nelson's performance of her professional work could

23 only be described as exemplary. She had taken every

24 necessary step by engaging every expert, and in fact the

25 first solicitor in Northern Ireland to engage an expert

 

 

47

 

1 in video reconstruction of the events to seek to

2 establish timeframes, to seek to establish views and

3 perspectives from which an identification could be made.

4 She had employed a private detective. She had employed

5 engineers to examine the scenes, to look at sight lines,

6 et cetera. And when it was revealed that Mr Robb had

7 been involved in paramilitary activity which had not

8 been disclosed by the police, she immediately took the

9 appropriate steps of writing to the appropriate

10 authorities for the benefit of her client.

11 Again, in June 1997 the behaviour that she engaged

12 in as a solicitor, as has already been indicated, was

13 almost unique. Solicitors in Northern Ireland up and

14 until that time had been far from proactive in the

15 advancement of the interests of their clients. Once he

16 was arrested, it was immediately on her advice that

17 witnesses who had something to contribute should not

18 wait until the time of trial. They should make

19 themselves available to the police for interview so that

20 their evidence could be considered and weighed as

21 against the evidence of one identifying witness.

22 Now, if one reflects back on what had happened to

23 Colin Duffy, he had been on remand for almost two years

24 before his trial. In the Lyness case, he had been

25 convicted and remanded for almost another year before

 

 

48

 

1 his appeal. So the decision that she made was

2 a conscious one: that firstly, she had to engage with

3 the police in terms of an evidence-gathering process.

4 Bail applications were brought on behalf of Mr Duffy,

5 where it was indicated the work that she was doing,

6 which would have been the normal work of an

7 investigating officer -- an investigating officer's job

8 was to go out and establish whether or not there was

9 corroborative or substantial evidence to support or

10 strengthen the identification that had been purportedly

11 made. But she did that.

12 Because of her involvement in the Garvaghy Road, she

13 also at that stage was aware and had access to other

14 avenues, and it is in this context that the NGOs are

15 immensely important.

16 After the murder of Pat Finucane in 1989, there was

17 immense international interest in the legal profession

18 and the difficulties that it faced in Northern Ireland.

19 And the number of NGOs who had paid little, if any,

20 regard to the circumstances that occurred and existed at

21 the time, began to send delegations. NGOs that were

22 already here were energised, and the important matter of

23 NGOs: NGOs enjoy a special position within a democratic

24 society.

25 When the United Nations was founded under Article 71

 

 

49

 

1 of its charter, they were identified as consultative

2 groups, and having been identified as consultative

3 groups, there was an obligation upon states to ensure

4 that they were able to carry out their work, and that

5 work to a large degree is the auditing of the democratic

6 process within a normal society.

7 However, the problem with that also is that they

8 have a dynamic of their own and their dynamic is not

9 necessarily the same as or always compatible with the

10 individual. Rosemary Nelson's primary obligation was to

11 her clients and her primary obligation was operating

12 within the legal system and operating ethically within

13 that system. NGOs have a wider and a more demanding

14 responsibility, because it rests on the whole of the

15 legal community.

16 So therefore, when Rosemary's complaints as to her

17 treatment emerged, there was already in place an active

18 group of non-governmental organisations with an abiding

19 interest in a human rights and access to persons in

20 authority in governmental positions who acknowledged the

21 importance of their position.

22 So when dealing with the defendant, Colin Duffy,

23 because of her access to these NGOs through her work

24 with the Garvaghy Road and her access to international

25 bodies and indeed government organisations, she was able

 

 

50

 

1 to develop a line that would not normally be within the

2 normal framework of a solicitor. But it existed and she

3 used it and she used it properly, because on

4 2nd October 1997, less than five months after his

5 arrest, the Director of Public Prosecutions issued

6 a direction that there was no prospect of success in

7 a prosecution against Mr Duffy on the evidence that was

8 presented to it.

9 That is remarkable. It is a remarkable achievement

10 for a woman who had no background in criminal law and no

11 background in terms of her prior history of dealing at

12 this level with government organisations. Again, if one

13 asks is that unusual, the answer is yes, it is unusual,

14 but it is also utterly commendable because it is the use

15 of the democratic process and the institutions within

16 that process to achieve a result for a client.

17 The next question, however, is: is that seen as

18 admirable by all persons within the system, and the

19 answer is of course not. There are persons -- and one

20 can see it in relation to some of the documents that

21 have been produced -- who are simply beyond the reach of

22 reason; who arise each morning encumbered only by their

23 prejudices and unencumbered by knowledge, unencumbered

24 by an interest in finding out the truth as to what

25 a position is.

 

 

51

 

1 The difficulty one comes back to deal with is while

2 all of this is going on, undoubtedly she is no longer in

3 the Colin Duffy case, although she was involved to

4 a minor degree in the interrogation process because it

5 was a speedy process, because the police had an

6 identifying witness. But within the public mind she was

7 being identified as an individual, again representing

8 a person who, to a section of the public, had committed

9 a heinous murder of two innocent men trying to protect

10 the security of their community.

11 At the same time complaints were also being

12 received, complaints that she was asking should be

13 investigated. And when you ask complaints to be

14 investigated, this Tribunal, if it were to enter into an

15 adversarial process, would come up against the same

16 impediments as existed. The interrogation process was

17 of itself designed to ensure there could be no

18 corroboration, there should be no supporting or

19 strengthening evidence, that it actually came down to

20 one person's word against another.

21 So when one sees the constant refrain within the

22 dealing of the complaints, there is no corroboration,

23 well, the only corroboration conceivable would have been

24 an admission by a police officer: yes, I did issue those

25 threat; yes, I did behave very badly. And the

 

 

52

 

1 likelihood of that occurring, knowing human nature,

2 shall we say, was remote.

3 The prisoner -- in terms of disclosure of what was

4 available to him -- during his stay in Castlereagh, he

5 was not allowed access to pencil or paper, he could not

6 record what he indicated occurred during the course of

7 interviews. He was not entitled, nor was his solicitor

8 entitled, to see the detention record. The detention

9 record up and until the mid 1990s only became available

10 at trial after the person had given evidence if he was

11 alleging he had been subject to the forms of ill

12 treatment which would have led to the exclusion of his

13 statement. There was no disclosure. There was no means

14 for a prisoner to record what occurred or break down the

15 disciplines of an ordinary day into the interrogation

16 aspects, namely were there three, were there four, were

17 there five, how long did they last?

18 The possibility of ever determining whether there

19 was corroborative evidence or not was simply beyond the

20 reach of any natural or normal enquiry.

21 Indeed, one sees during the course of this

22 particular period when, as has already been outlined,

23 Northern Ireland was going through a critical transition

24 phase, the recommendation of perhaps video rather than

25 sound. Well, when that was tried, the immediate

 

 

53

 

1 response would be if a defendant stood up and

2 demonstrated in any shape or form, that was treated as

3 an expression of violence by him against the

4 interviewer. And if he were to suggest no, I was

5 responding to something improper that was happening and

6 you looked at the video and you saw the blank, normal

7 expression of an interrogator, well, who do you believe?

8 So the purpose of video is of almost no importance,

9 unless of course one enters into basic little more than

10 thuggery.

11 The problem, therefore, exists throughout the whole

12 of the complaints procedure that once you have two

13 diametrically opposed versions of what occurred, there

14 can be no access to the normal tools that a lawyer would

15 use to make a determination as to where the truth lay.

16 So when it comes to dealing with these matters,

17 I respectfully submit one has to look at them in the

18 round. Looking at the individual cases, if one

19 attempted to run them as nine or ten separate trials,

20 all that would come out with, I am afraid, is a fairly

21 futile and expensive waste of resource. One simply has

22 to look at, overall, what is it that is being said, what

23 are the denials, what are the probabilities, the

24 conclusions one can come to in specific terms and then

25 generally, and more importantly, what does it tell us

 

 

54

 

1 about the background to these events.

2 Now, what I respectfully submit is that when one

3 looks at other aspects that have been thoroughly dealt

4 with by Mr Phillips, they give you perhaps a greater

5 insight into the difficulties of making decisions than

6 simply a separate examination of the complaints. The

7 two most important instances of that are, as has already

8 been stated, the Cumaraswamy incident and the incident

9 involving the eventual involvement of

10 Commander Mulvihill, namely the ICPC investigation of

11 the complaints by their investigating officer,

12 Miss McNally.

13 The important matter when one looks at this -- let

14 us take Mr Cumaraswamy. He is a man with an

15 international reputation, involved at the highest level

16 in dealing with human rights issues involving the

17 independence of the judiciary and the independence of

18 lawyers. He stated that during the course of a meeting

19 on 24th October 1997, the Chief Constable made certain

20 remarks which were disparaging of lawyers in general and

21 Mrs Nelson in particular.

22 The response to that is the response to a complaint

23 made by a prisoner in Castlereagh: Firstly, it didn't

24 happen; secondly, there is no corroboration or

25 supportive evidence that it did happen; thirdly, if it

 

 

55

 

1 did happen, it had to be a misunderstanding; fourthly,

2 if it was a misunderstanding, it was your

3 misunderstanding, not my misunderstanding; and fifthly,

4 there has to be a compromise, there has to be a way out

5 of this. It doesn't have to be a total refutation of

6 one by the other. We can compromise.

7 And always, when one even reads the words of the

8 Mulvihill Report, the Mulvihill Report is itself almost

9 a finished article of compromise, because words which

10 are utterly unacceptable by any standards today and by

11 any standards in 1997 and 1998, are categorised that

12 although made in an adult environment, have the aspect

13 of the playground and childish name calling; the

14 classification in others as being incivility.

15 But one asks: but for Param Cumaraswamy's

16 international reputation, would he have been taken

17 seriously? The one thing that is certain -- and I don't

18 at this stage propose that you should make a decision

19 one way or the other; I mean you still have to hear

20 Mr Flanagan. You still have to hear Param Cumaraswamy.

21 But what I respectfully submit is that in essence it is

22 a mirror reflection of the difficulties that are faced

23 by others whose position, by the very fact that they

24 have been arrested under terrorist legislation, is much

25 more vulnerable than that of Mr Cumaraswamy, supported

 

 

56

 

1 by Mr Alan Parra.

2 So also when one comes to deal with the Mulvihill

3 Report, again, paraphrasing some of the words that are

4 recurrent throughout it, the problem for Geralyn McNally

5 was not a problem other than an attitudinal one to her

6 and the nature of what she was doing. When it came to

7 Commander Mulvihill, Commander Mulvihill was an

8 experienced police officer from the Metropolitan Police.

9 His mere entrance into a room of other police officers

10 would immediately command respect. The position that he

11 occupied, the office that he was fulfilling and the work

12 that he was undertaking, unless police officers had

13 completely lost touch with reality, would immediately

14 bring home to them the seriousness of what was being

15 alleged against them.

16 What appears with Geralyn McNally is the reverse:

17 that she did not receive -- and it is apparent from the

18 report of Mr Donnelly, subsequent to the publication of

19 the Mulvihill Report -- she did not receive any respect

20 and in fact what she received was discourtesy. What she

21 received was basically a failure of the recognition of

22 the authority of the office that she occupied.

23 And within these matters one also has to question,

24 is it also a fact that they were women in

25 a predominantly male world in Northern Ireland at that

 

 

57

 

1 time. Rosemary Nelson was almost unique in being

2 a woman involved in the practice of criminal law and

3 attending at police stations. Geralyn McNally was

4 a young woman who had been at the Bar for some time and

5 had joined ICPC, and she had a background in

6 human rights law but she was still a young woman. The

7 important matter is not the findings of Mr Mulvihill, in

8 a sense. The important matter is the attitude of police

9 officers to an investigation for which they had little

10 respect and perhaps some contempt.

11 The treatment of Geralyn McNally, both at the time

12 and throughout this period, this period lasted -- you

13 will recall, she first indicated that she had

14 reservations in relation to the cooperation that she was

15 receiving -- between April and May of 1997, and the

16 Mulvihill Report is not published until after Rosemary's

17 death on 19th March 1998.

18 What is the approach to her? The answer is: if one

19 can see the papers and if there is a degree of substance

20 in it, which is a matter for you to find, it is one of

21 vilification and a depressingly dreary conclusion for

22 anyone to have to make after the events with which this

23 Inquiry has to study.

24 When it comes to dealing with this, therefore, one

25 sees there are two elements of complaint, independent of

 

 

58

 

1 Rosemary Nelson, about police attitudes found in

2 Cumaraswamy and found in the approach to

3 Geralyn McNally. And they are, as I have indicated --

4 the similarities between how those complaints are met --

5 devastatingly similar.

6 There, first of all, is the attack ad hominem:

7 attack the person. Then attack the quality of the

8 evidence, then rely, when all else has failed, in the

9 absence of any corroboration and one of the things that

10 seemed to cause some distress to Mr Donnelly was the

11 suggestion, well, there isn't any corroboration of the

12 evidence of Geralyn McNally.

13 Well, again, firstly, his distress seems to have

14 been that as a woman of absolute integrity who'd

15 undertaken this particular exercise, her word should not

16 have been questioned. But unfortunately, the other

17 methods that were used to deal with this revealed the

18 lengths which it is possible for individuals to go to to

19 mask the plainest truth. And the Mulvihill Report could

20 be seen, and the intervention of Commander Mulvihill

21 could be seen, as an attempt by those in authority, both

22 within the police and the NIO within the Province, to

23 seek to put a gloss upon what was indefensible.

24 The concerns that the NIO expressed over the

25 irregularity of the contact of the investigating officer

 

 

59

 

1 with the police simply to inform them as to what was

2 occurring was: what if we can't persuade the Independent

3 Police Commission to accept a review or further

4 investigation, what if they decide these are findings we

5 are making, it is not a complaint; it is findings, and

6 we intend to make our report and we intend to finalise

7 our report with our reservations, and the answer to that

8 to be found in the documents was: it will be very much

9 more difficult to manage.

10 So I see perhaps it is just after 1 o'clock.

11 THE CHAIRMAN: Certainly. Five past two? Would that be

12 convenient, Mr Harvey?

13 MR HARVEY: Indeed.

14 THE CHAIRMAN: Thank you very much.

15 (1.05 pm)

16 (The short adjournment)

17 (2.05 pm)

18 THE CHAIRMAN: To assist all of the Full Participants,

19 I want to make this short announcement. There will be

20 no evidence called this week. We will be calling

21 evidence as from Tuesday afternoon and all Full

22 Participants will have details, hopefully within

23 a matter of hours, certainly within 24 hours, of the

24 witnesses to be called next week, so that those that

25 wished counsel for the Panel to address issues and ask

 

 

60

 

1 questions of the particular witnesses, will have time to

2 notify counsel for the Inquiry of the lines of

3 questioning requested.

4 Yes, Mr Harvey.

5 MR HARVEY: As I was dealing with the Mulvihill Inquiry, and

6 in particular the concerns that were expressed by the

7 investigating officer for the ICPC, and has already been

8 pointed out, the developments along this line were

9 highly irregular and there appears to be no legal basis

10 for the approach that was taken. But undoubtedly,

11 within the parameters of what is lawful, there is also

12 the parameters of what is pragmatic.

13 The ICPC could easily have not referred the matter

14 to the Chief Constable at all. They simply could have

15 made their findings and issued their report with the

16 reservations that they found. Once, however, they

17 decided to embark upon informing the Chief Constable,

18 they then set in motion a train of events over which it

19 is quite apparent they had little control and they

20 lacked the degree of experience to deal with what

21 amounted to the campaign to subvert their original

22 intentions.

23 The people that they were dealing with were dealing

24 with issues at various levels and at various levels of

25 sophistication. The Chief Constable undoubtedly had to

 

 

61

 

1 be aware of the difficulties that would be created if

2 such a report were published in terms of the public

3 image of his force.

4 The Northern Ireland Office and the Foreign Office

5 had to be concerned about the international damage being

6 done to the reputation of Britain in a small community

7 such as Northern Ireland; abuses which were seen not

8 only to occur, but once they had occurred, there was

9 little, if any, conceivable effective redress. That was

10 at a different level.

11 Undoubtedly, once Miss McNally alerted -- or the

12 ICPC on her behalf alerted the Chief Constable, all of

13 these matters were brought together: the Chief Constable

14 immediately elevated the concerns that were being

15 expressed over the attitudes not into findings being

16 made in the course of an investigation by the ICPC, but

17 a complaint being made by the ICPC to the

18 Chief Constable in relation to the behaviour of his

19 officers, which it certainly was not.

20 The other matter was to try and elevate it by

21 suggesting that it involved criminal activity which, as

22 Commander Mulvihill later established, it certainly did

23 not. It was the type of activity in terms of its

24 behaviour which was reprehensible, utterly unacceptable

25 for police officers, but in terms of a conspiracy to

 

 

62

 

1 pervert the course of justice, there simply is not basis

2 for that assertion.

3 One therefore asks why would the Chief Constable in

4 those circumstances seek to elevate the potential

5 findings of the ICPC beyond what they actually were.

6 And the answer is to be found in the appointment and the

7 negotiations concerning the appointment of

8 Commander Mulvihill, because on one interpretation --

9 and I accept it is only one -- it was to conflate

10 a number of different avenues of discontent and, having

11 conflated them, confuse the ultimate outcome but protect

12 the eventual product of the investigation, namely that

13 there was no evidence to support the complaints. And

14 that is exactly what happened. And what happened was

15 this was not to be a reinvestigation, but a review. The

16 review enabled the ICPC to remain in terms of its

17 supervisory role but to neuter it in terms of potential

18 outcomes.

19 The Northern Ireland Office and its representatives

20 were quite well aware of that, because one fundamentally

21 appreciates when one looks at documents that what one

22 must not do is immediately come to a hysterical or

23 unjustified conclusion. The function of the policy

24 divisions within the Northern Ireland Office is to

25 propose and prepare responses. Their function is to

 

 

63

 

1 manage product from whatever source in order that it is

2 put out to the public in an orderly, a comprehensible

3 way, but also a way which reflects no discredit upon the

4 Government or its agencies. That is its job.

5 But within the management of this particular issue,

6 what was lost was not the complaints where the outcome

7 was almost inevitable; what was lost was the attitude of

8 the supervising officers during the course of the

9 investigation to the ICPC.

10 That is highlighted by the fact that at the same

11 time the Secretary of State, Adam Ingram, and others are

12 writing saying: we are aware of the deficiencies which

13 exist within the complaints system. They are all we

14 have for the moment. They are capable of doing the job,

15 and therefore you must follow through on what is there,

16 but because of the Police Act of 1998, we intend to

17 establish an ombudsman, be a totally new system in which

18 the public will have confidence.

19 But the point of having a complaints system is so

20 that when there are allegations of misconduct by

21 officers who occupy positions of responsibility within

22 agencies of the state, the public have confidence that

23 those allegations will be dealt with fairly.

24 If there is no public confidence in the complaints

25 system, the complaints system itself not only falls into

 

 

64

 

1 discredit and disrepute, but it becomes futile. The

2 self-fulfilling objective of the complaints system is

3 the inexorable movement towards an ultimate finding

4 which is immutable, and that would appear to be the

5 outcome of the complaints that we have.

6 In other words, the complaints system has become

7 a ritualised cul de sac which people, if they wish to

8 follow, must follow, but in doing so recognising the

9 inevitability of the outcomes.

10 In any system, all outcomes at the beginning are

11 equally possible and perhaps that applies to this

12 Tribunal. As the evidence unfolds, while all outcomes

13 remain possible, not all outcomes are equally probable.

14 The probabilities of outcomes change depending upon the

15 weight of the evidence, its interpretation and views

16 that are taken of it. The complaints system defeated

17 that particular outcome in terms of how they would be

18 dealt with.

19 It is obvious that solicitors in Northern Ireland

20 had no faith in it, and it is also obvious that

21 complainants within the system had no faith in it. It

22 is also recognised by the politicians that there were

23 huge structural deficiencies, and those structural

24 deficiencies quite simply were the inevitable

25 consequences of officers investigating complaints,

 

 

65

 

1 where, as is pointed out within the documentation, there

2 are resentments by officers, resentments against those

3 who make the complaints and resentment against those who

4 are the representatives of those who make the

5 complaints.

6 That, again, is obvious. In one of the responses

7 that has been uncovered by the Tribunal, where one

8 officer indicates that he does not blame the individual

9 on whose behalf the complaint is being made, he blames

10 the solicitor and he believes that she is making the

11 complaint in order that she can undermine the whole

12 system. The one thing about the Mulvihill Report is

13 that all of its conclusions are anodyne, and

14 unfortunately, the more anodyne they are, the less

15 substance one can find in the basis which is their

16 foundation.

17 He indicates that there was no evidence that

18 Mrs Nelson conducted her business other than on

19 a professional level. I don't know what evidence there

20 was upon which he made such a conclusion, but

21 nonetheless it is a conclusion and it is in his report.

22 But there is one thing which is striking, and that is

23 that when Mrs Nelson made complaints on behalf of

24 individual clients in relation to the denigration of her

25 position as a solicitor and their representative, every

 

 

66

 

1 single individual has indicated, whether their

2 complaints were consistent or not, that they made

3 complaints to Mrs Nelson in the terms in which she

4 relayed them to authority.

5 There is not one piece of evidence that at any time

6 she was operating on behalf of anyone other than her

7 clients and the protection of her own good name.

8 That is significant, because one must then ask: the

9 police officer who made the statement presumably is an

10 officer acting, because he was prepared to put it on

11 paper, on his belief. Therefore, one immediately asks:

12 where does that belief come from? What one does say,

13 therefore, when one looks at the generality of the

14 complaints, the generality of the complaints are based

15 upon attitudes such as that expressed by the officer

16 himself. They are based upon the fact that she was not

17 seen in a detached way appearing for her client. But

18 what can be said is that the nature of those complaints

19 as they emerged were complaints which were genuine,

20 which were complaints which were genuinely designed to

21 advance the interests of her clients and complaints that

22 were made which were to the benefit of a democratic

23 society, and which it is important that lawyers are seen

24 as independent, that their interests are not conflated

25 with their clients, and that they are permitted to go

 

 

67

 

1 about their legitimate business, which is to the benefit

2 of all society, without hindrance.

3 So when one comes to look in particular at these

4 matters, there are other times when officers,

5 independently of the complaints, refer to Mrs Nelson in

6 a way which is disparaging of her.

7 After the arrest of Colin Duffy on

8 17th November 1997 for an assault, the police officer

9 who is investigating it wrote to indicate that, ably

10 assisted by a solicitor, since he had been released from

11 prison he had been disruptive, he has caused

12 difficulties to the security forces. Why was there any

13 need to refer to a solicitor?

14 So far as the evidence goes, the solicitor's sole

15 involvement was when he was arrested against the

16 background of a person who had been twice charged with

17 murder: once having to go through the process of

18 conviction and appeal to be acquitted; the other having

19 to go through a process of remand in custody. He is out

20 of custody in a very short time, namely September 1997,

21 and he is arrested in November 1997. And how is this

22 for a piece of sensitive policing: A group of police

23 officers at 1.30 am in the morning see Colin Duffy in

24 the company of another group of people leaving a public

25 house. Their decision is immediately, when he gets into

 

 

68

 

1 a car, to stop the car and remove all of the occupants.

2 And lo and behold, to their surprise, a public

3 house which is spilling out its occupants at that

4 time of the morning gives rise to a huge altercation.

5 When asked what was the purpose of stopping

6 Colin Duffy at 1.30 in the morning, there certainly

7 appears to be no justification other than the fact that

8 his name is justification. But be that as it may, one

9 has to say when one looks at it in that bald way,

10 a solicitor who is presented with the difficulties that

11 she has formerly faced in representing Colin Duffy might

12 be forgiven for accepting her instructions at face

13 value, those instructions being that there was

14 a deliberate confrontation sought by police officers

15 with Colin Duffy in the early hours of the morning

16 outside a public house, and all they had to do was note

17 his movements and, if necessary, involve themselves in

18 some form of covert surveillance.

19 Once she accepted that, then immediately she is cast

20 in the light of someone who is propagandising on behalf

21 an unlawful organisation.

22 Now, that, as I have indicated, reveals more perhaps

23 than the complaints, because it is the attitude of

24 someone committing to paper, to his superior officers,

25 what he actually feels about what is occurring at the

 

 

69

 

1 time. And it is also true that in relation to

2 complaints, as was found by Commander Mulvihill, the

3 difficulty that one has when one looks at these

4 complaints in general is that they are being made to

5 Republicans; then, of course, they are unlikely to be

6 acted upon by Republicans, to the detriment of

7 Mrs Nelson.

8 But unfortunately, the low insinuating voice of

9 calumny will find a hearing far beyond the immediate

10 context in which it is uttered. And when one looks at

11 some of the material that is uncovered by this Tribunal

12 in relation to the denigration of Mrs Nelson within the

13 wider community, all one can say about it is that it

14 represents a savage disregard for decency.

15 When police officers are aware of community feelings

16 that existed within the community in Lurgan in terms of

17 the sectional divides and they themselves absorb

18 attitudes, and having absorbed those attitudes,

19 disseminate them on among themselves, there is also the

20 inevitable possibility that those are disseminated in

21 a wider field within the community, and that is where

22 the damage occurs.

23 Sadly, when it comes to dealing with these issues,

24 one has to recognise the totality of all that was

25 happening over the period of time of two years prior to

 

 

70

 

1 the death of Mrs Nelson.

2 There were the beginnings in the Duffy case. The

3 Duffy case begins in really 1995, spreads over into

4 1996/1997. At the same time, one has Drumcree. At the

5 same time, one has complaints that are being made by

6 a number of her clients that is she is being denigrated

7 by police officers. There are complaints that she is

8 being denigrated on the streets by police officers and

9 others. There is the introduction of Param Cumaraswamy

10 who has indicated at the beginning of 1997 that he

11 intends to conduct a mission to the United Kingdom, and

12 in response to information which he has received from

13 British Irish Rights Watch, he also intends to conduct

14 an investigation into the position in Northern Ireland.

15 That goes on through 1997. Colin Duffy is arrested

16 again in 1997. Complaints are still being investigated

17 in 1997. When we come to the end of 1997, Mrs Nelson

18 has alleged that she was assaulted and was assaulted at

19 Drumcree. At Drumcree also at that time of year

20 tensions are automatically heightened simply because of

21 the responses that people have in a tribal way to what

22 was occurring, and what was occurring had a great

23 symbolic value beyond the confines of Portadown.

24 It is sometimes said that mid Ulster and that area

25 is the last ditch, because it is the core of a type of

 

 

71

 

1 sectarian Loyalism and also of Republicanism which,

2 however bitter the rest of Northern Ireland was, never

3 reached those standards. It was an area in which known

4 to the police and the Special Branch there were

5 operating at that time some of the most notorious

6 killers in the history of Northern Ireland and some of

7 the most notorious Loyalist killers in the history of

8 Northern Ireland, and the allegations which were being

9 constantly made without substantiation but without

10 denial, because that is the position which is occupied

11 by government, that many of these Loyalist killers were

12 in fact covert agents of the state.

13 Against that background, if one has the denigration

14 of a solicitor, it can no longer be seen in terms of

15 simple playground animosity or playground name calling

16 or incivility. There ought to have been an appreciation

17 that this one particular area had obtained a notoriety

18 and a notoriety which was based, and justified in fact,

19 for the responses which were extreme from these

20 individuals.

21 So when one looks at all of this and says: do these

22 attitudes from the police ring true? The answer is:

23 they are in black and white. Therefore, they do. The

24 next question is: would the police be aware that if

25 these attitudes were disseminated into a sectarian

 

 

72

 

1 community with known killers, would that produce

2 a response which would be antagonistic to

3 Rosemary Nelson and place her life at risk?

4 I would respectfully submit that if one wants to

5 find the answer to that, the answer to that lies in the

6 Chief Constable's response to the Mr Cumaraswamy

7 allegations. His immediate reaction was this has to be

8 redacted. It has to be redacted from the report. And

9 although he took a number of different stances, the

10 stance which was ultimately successful was the stance

11 that if this is made known to the wider public,

12 Rosemary Nelson's life will be placed in danger.

13 The paradox of all of this is that the sole steps

14 that were taken by the RUC, by the

15 Northern Ireland Office or by the Foreign Office, to

16 protect Rosemary Nelson's life was the redaction of her

17 name from a document produced by the Special Rapporteur

18 of the United Nations with special responsibility for

19 the independence of lawyers and the judiciary. And if

20 that is not a paradox, it is difficult to know what is.

21 But it is a recognition, and a recognition by the

22 most senior police officer in Northern Ireland, that the

23 identification of a solicitor with his clients or with

24 movements in a larger area which they claim to

25 represent, then that does imperil the life and safety of

 

 

73

 

1 an individual.

2 And when one comes back to look at it,

3 Param Cumaraswamy's report is published at the beginning

4 of 1998. The complaints in relation to how these

5 matters in relation to her clients had been dealt with

6 is coming to a head in 1998. The documents in relation

7 to "Man With No Future" and the threat document come to

8 light in 1998. So what one has throughout this period

9 of time are heightened acknowledgements, but no one

10 seems to have drawn them all together. No one seems to

11 have sat down in an assessment of let us just not

12 examine the complaints, let us examine the background:

13 does that cause danger for Mrs Nelson as a response to

14 her work?

15 If one goes through 1998, what one sees as one comes

16 to the end of 1998: the Cumaraswamy episode continues to

17 smoulder on; the issue in relation to Mulvihill

18 continues to smoulder on; the issues in relation to

19 Drumcree smoulder on. So there has been no resolution

20 to any of those matters and Mrs Nelson, unfortunately,

21 and her profile is established within this community.

22 Now, one of the difficulties that one has -- and the

23 Inquiry has faced -- is that if one was holding an

24 Inquiry, quite frankly I wouldn't like to start from

25 here. Where I would like to start from in the history

 

 

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1 of Northern Ireland which reveals that if you want to

2 know if there is collusion, you go to the

3 Special Branch, you examine their files and you examine

4 the use of their assets. The Special Branch,

5 I presume -- and intelligence services throughout the

6 United Kingdom, operate under a mystique that, somehow

7 or other, those of us who are outside the pale of their

8 influence are ill-versed and ill-positioned to

9 understand how they operate. In fact, everyone knows

10 how they operate and particularly in Northern Ireland.

11 The position is that within Northern Ireland,

12 Loyalist paramilitary organisations must be the most

13 infiltrated groups in the history of the world. When it

14 comes to dealing with the Finucane case, the Finucane

15 case came to light because of the intervention of

16 Sir John Stevens, and during the course of his

17 investigations he went straight to the heart of it: what

18 are the intelligence services doing in relation to this

19 particular crime? What is their involvement? What is

20 their knowledge? And the way you find out their

21 knowledge is, at this time, they would have been agents,

22 assets; today they would be called "covert human

23 intelligence sources". They would be registered, they

24 would be monitored. One would know precisely what

25 information they had given.

 

 

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1 But as has been indicated in the Ayling Report, and

2 detailed by Detective Superintendent Kincaid, the

3 Special Branch within Northern Ireland operated -- and

4 it has been described in some of the reports dealing

5 with it as a force within a force. They were

6 independent of but supposedly an integral part of the

7 policing within this community. But they had got to the

8 stage where they saw themselves as not simply

9 independent of, they saw themselves in a hierarchy of

10 superior to all other considerations, and they did that

11 because they identified themselves more with the roles

12 of MI5 and MI6 than of Special Branch, which is there to

13 support policing.

14 If one wanted, in an ideal world, to start this

15 Inquiry, one would go straight to the Special Branch and

16 say: who were your agents operating within the LVF, the

17 UVF, the UFF and the UDA in these areas? When these

18 allegations were being made in relation to Mrs Nelson,

19 one would have expected that their response would have

20 been to go and ask their agents who were actively

21 involved in paramilitary groups: what are the

22 sentiments, what are the feelings? Are they heightened?

23 Is this basically just a piece of a one-day wonder? Is

24 it something we will get over? Are people taking steps

25 to imperil her life?

 

 

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1 After the murder was over, one would expect not only

2 the Special Branch, one also knows that Northern Ireland

3 MI5, military intelligence, were operating. All of

4 their assets and agents ought to have been contacted to

5 find out what is the hard core information.

6 Now, one of the difficulties that one has when one

7 reads the synopsis that has been prepared, without the

8 detail, it is quite obvious that Special Branch still

9 sees itself as independent of and superior to the

10 functions of the other policing agencies.

11 The Pat Finucane case, it was quite obvious when

12 Mr Stevens obtained the information from military

13 intelligence, when he obtained information from the

14 Special Branch, he was able to establish a pattern that,

15 whether you call it collusion or not, the murder of

16 Pat Finucane was carried out by people who were known to

17 the Special Branch, who were known to be planning

18 a murder and who had been facilitated in a number of

19 ways by the intelligence services.

20 But as I say, it is impossible to make any comment

21 on this case, because as the Ayling Report indicates at

22 page 676, there doesn't seem to be any evidence which

23 has been produced by which an audit of the approach that

24 one would have expected to take place.

25 So when one comes to this, one can't, I am afraid,

 

 

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1 share the reservations availing of the Ayling team. It

2 is staggering, absolutely staggering, that there is no

3 information from Special Branch, from MI5 and from Army

4 intelligence as to information prior to the murder of

5 Rosemary Nelson as to the attitude of paramilitaries,

6 given her high profile. It is staggering that after the

7 murder there is no information from those assets and

8 those agents as to whom they believe carried this

9 murder out.

10 The one thing about this area of mid Ulster, the

11 number of active Loyalists who would have the capacity

12 and the inclination to engage in this type of murder are

13 relatively small. All would be known to the security

14 forces. And if the level of sophistication of this

15 particular murder was considered to be beyond them, the

16 next question is: where did that level of sophistication

17 come from, and was it supplied by assistance from

18 individuals operating in a collusive manner within the

19 intelligence services themselves?

20 Regrettably, the history of Northern Ireland and its

21 recent history, when one looks back at the recent record

22 report by the Ombudsman, it shows that persons were

23 killed by agents operating on behalf, or operating

24 through, the intelligence services and that information

25 was denied to the ordinary forces who were charged with

 

 

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1 investigating. So when one looks at this particular

2 aspect of the case, one does not, I am afraid, draw any

3 comfort from that area of the Ayling Report.

4 What one does draw comfort from, however, is that

5 the MIT team have kept in touch with Mr Paul Nelson.

6 They have kept him informed, insofar as they are able.

7 And insofar as they are able in terms of the information

8 that they have given him, he is confident that they are

9 doing the best that they can. But sometimes the best

10 that we can is not enough. We have to accept that. But

11 certainly within this one aspect of the case, it is an

12 aspect where the intelligence, good intelligence

13 supporting a police investigative operation, can be

14 fundamental in determining its outcome. And if it is

15 fundamental in determining its outcome, normally it is

16 a good place to start in making a determination as to

17 whether or not an investigation has received all of the

18 assistance that it deserves.

19 There are other aspects of the Ayling Report,

20 however, which do not commend themselves and that is the

21 one in relation to victimology.

22 What one can say with that is that with all the best

23 will in the world, trying to extract in a normal

24 policing situation how you deal with a murder such as

25 this, as opposed to a murder occurring in

 

 

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1 Northern Ireland in the circumstances and background

2 which occurred here, it is, I am afraid, like coming

3 home and finding an elephant in your front room and the

4 coffee table damaged, and saying: I had better look in

5 case there is a mouse.

6 There is an immediate obvious cause for the death of

7 Mrs Nelson, which the murder investigation team over all

8 of the years that they have been dealing with it, have

9 centred upon and centred upon, I would say in a logical

10 and reasonable way.

11 The other evidence that has emerged in relation to

12 the relationship with Colin Duffy that has been

13 suggested as to be an improper basis, what one can say

14 is in the evidence that has been presented to date

15 before us is little more than that which is consistent

16 with a campaign of denigration against Mrs Nelson. And

17 the fact that she is a woman gives the opportunity to

18 make suggestions such as impropriety in terms of her

19 relations, and that immediately creates a distaste. I

20 can understand, in fact, the Ayling version where the

21 distaste may well have been so great that there was

22 a failure to follow it through.

23 The other way of looking at it is that the distaste

24 was so great because it was based on trifles and not

25 only based upon trifles, but based upon calumnies

 

 

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1 without foundation and without substance, but without

2 the basis of any proper line of enquiry into this

3 murder.

4 When one comes to look at the lines of enquiry into

5 this murder, if what is concerning Ayling is that

6 a device such as this had not been used before in

7 precisely the same terms, one has to ask: did those with

8 the knowledge who are known to the security forces, have

9 they always used the same methodology or are there

10 variabilities? It there are variabilities, is this

11 within the parameters?

12 Secondly, if they did not have the expertise, at

13 what level of expertise does this fall, and what would

14 be required in terms of input, and what would be

15 required in terms of input, in fact, if there is the

16 possibility of collusion?

17 Those are the hypotheses that are more likely if

18 developed to produce a satisfactory product than the

19 victimology. And all one can say is that within the MIT

20 team, they seem to have addressed it, addressed the

21 victimology but dismissed it, because they did not feel,

22 given the information that they had, that it had any

23 relevance to the nature of their enquiries.

24 I also accept that had they followed it through,

25 ultimately it would have been of benefit. It would have

 

 

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1 been of benefit because it could have been dismissed,

2 and if it could have been dismissed, we would not be

3 dealing with it at any level.

4 However, again, that is a counsel of perfection.

5 One deals with the issues the way they are, and as has

6 been pointed out already by Mr Phillips, even in an

7 ideal world, when everything is done to a successful

8 outcome, it does not mean that everything has been done

9 perfectly to achieve that outcome.

10 So when it comes to dealing with all of these

11 issues, what I respectfully submit is that the questions

12 that arise for this Tribunal and this Inquiry are

13 substantial and they are significant. And this Tribunal

14 has -- and it is quite apparent to everyone involved --

15 striven to obtain as much information as it conceivably

16 can. And it is also obvious through the remarks that

17 have been made by counsel, that the Tribunal itself

18 finds that the gaps in the material will have to be

19 filled, and therefore the work continues.

20 But what I respectfully submit is that all of the

21 issues that arise, arise in a cauldron and a cauldron of

22 multifaceted events that are taking places: Drumcree,

23 the Hamill case, which undoubtedly gave rise to huge

24 resentments within both communities and the policing

25 community in this area.

 

 

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1 There is one way of looking, I am afraid, at the

2 Hamill Inquiry which I don't mean to be disparaging of

3 it, but one aspect is that there was an affray in

4 a public street late at night in which a number of

5 individuals participated. The police were present but

6 at a distance; they failed to appreciate the nature and

7 extent of what was happening and failed to intervene.

8 At another level, it could be seen as a complete

9 failure of policing in a sectarian area where

10 individuals ought to have known what was going on, ought

11 to have intervened. And then there is a second level

12 where, irrespective of how it occurred, it is a perfect

13 propaganda vehicle in order to denigrate the RUC, and

14 that the death of the unfortunate individual involved

15 was complicated -- but we don't really want to examine

16 that -- that the medical treatment which he received, it

17 would appear, attributed significantly to the

18 unfortunate outcome that resulted.

19 But that, irrespective of what view you take of it

20 and which is right, was the background within this area:

21 that it gave rise to huge divisions. The Drumcree issue

22 had given rise to huge divisions and those divisions

23 were not simple; they were not easily drawn. One had

24 a body of Unionist opinion, some of it which was not

25 entirely in support of what was happening but

 

 

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1 nonetheless would find it difficult to have condemned

2 what was happening.

3 The Nationalist community, believing that this was

4 just another example of a Unionist hegemony that had

5 passed; a triumphalism and a determination to show that

6 Portadown was the last ditch, that while all other parts

7 of the Province might change, this was to be used as the

8 cauldron for the final determination of whether or not

9 the old order could subsist.

10 And undoubtedly, Drumcree gave rise to some very

11 difficult aspects for Northern Ireland. Politicians

12 seemed to support it, Loyalist paramilitaries with known

13 records as members of death squads supported it; some of

14 the attitudes within the Garvaghy Road were reasonable,

15 others were passionately unreasonable; determinations

16 not to arrive at accommodations with each other.

17 Again, it was a very confused situation but it was

18 one whereby extremists on both sides who did not wish to

19 see the passing of old orders and Northern Ireland

20 moving forward could use it as an exemplar of their

21 views as to how society should go.

22 As I say, place against that Param Cumaraswamy,

23 complaints, the NGOs persistently and insistently

24 pursuing government in relation to its attitude to

25 complaints. Consider the political changes that were

 

 

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1 taking place. Consider the Mulvihill Report. Then

2 suddenly on 15th March 1999, Mrs Nelson is murdered.

3 And what one can say when one looks: hindsight is

4 partially illuminating and it is partially blinding;

5 because we see everything back, we think we should see

6 everything forward. That is not the way.

7 But what one can say is the degree of sophistication

8 in the analysis, both political and policing and social,

9 within the Northern Ireland Office and within

10 Special Branch, is at a high level. And their failure

11 to draw all of these elements together and their failure

12 to determine what was the response of paramilitary

13 organisations is staggering.

14 It is not just simply the failure of the

15 Special Branch; it is the failure of those who are

16 responsible for supervising them. It is those who are

17 responsible for taking the information which they

18 provide and analysing it. And as one knows, in dealing

19 with Special Branch one is dealing with a huge variety

20 of information, some of which is of little, if any,

21 value, others of which is high grade. It is classified

22 and once it is classified, in terms of its reliability,

23 it is then assessed. That is how you produce risk

24 assessments based upon threats.

25 What one can say -- and I do appreciate the point

 

 

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1 that Mr Phillips made -- when one looks at the

2 Northern Ireland Office, looks at that high level of

3 responsibility, Rosemary Nelson was not the only thing

4 that they had to deal with.

5 Politics were moving at a very accelerated level

6 compared to what had happened in other years. The

7 Province was moving exponentially towards a resolution

8 of age-old disputes, and that obviously had to be the

9 priority of their focus.

10 But the death of Pat Finucane on 12th February 1989

11 irrevocably changed the landscape in which lawyers could

12 be viewed. It irrevocably changed the landscape,

13 because it immediately projected Northern Ireland in

14 terms of the administration of justice into an

15 international arena where the ultimate objectives of an

16 impartial legal system were seen to be under challenge.

17 It is wrong, as I have indicated, simply to cast the

18 police in one role. The police were only fulfilling the

19 role that had been established for them by government,

20 and government must bear a huge amount of responsibility

21 for the framework in which the police operated. But

22 having said that, when one takes the totality of these

23 matters, what I respectfully submit is it is

24 regrettable, and the MIT share the regret, that no one

25 has been brought to justice for the murder of

 

 

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1 Rosemary Nelson. It may well be that no one will be

2 brought to justice for the murder of Rosemary Nelson,

3 but in terms of the Terms of Reference and the issues

4 that have been set by this Tribunal, I believe that no

5 better effort can be made, at least to establishing the

6 truth insofar as it is capable of being found and

7 discovered, than the way and the methodology that has

8 been employed by this Tribunal and is set out by counsel

9 to it. Thank you.

10 THE CHAIRMAN: Thank you very much indeed, Mr Harvey.

11 Mr O'Hare?

12 Opening submissions by MR O'HARE

13 MR O'HARE: First of all, on behalf of the Magee family can

14 I echo what my learned friend has already said in

15 relation to our gratitude to Mr Phillips for the very

16 fair manner in which these matters, these incredibly

17 complex matters, were opened to all of us and also for

18 the clarity which he brought to that task.

19 Now, that appreciation is bounded by this stricture

20 and it is one that he acknowledged himself, in that at

21 this stage not all matters were able to be opened by him

22 and to us, given the fact that we don't have some of the

23 material, quite a lot of the material, at this stage.

24 And that is a matter to which I return in due course.

25 Now, sir, from our client's point of view, an awful

 

 

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1 lot of the material which you have heard during the last

2 two weeks in Mr Phillips's opening was material which

3 was already in the public domain and consequently was

4 already well-known to our clients. The real task, we

5 suggest, for the Inquiry is to get beyond that and to

6 get to the stage where one really has confidence and one

7 knows that one is getting to the Inquiry's stated aim;

8 that is, to get at the truth of what happened to

9 Rosemary Nelson, how it happened and why it happened.

10 It is when one looks at that and only when one looks

11 at that that the participants, Rosemary Nelson's family,

12 Mrs Magee's family, the other Full Participants, it is

13 only at that stage that one can have full confidence

14 that the Inquiry is getting close to achieving its

15 stated aim of the truth.

16 Now, I will come back to that in due course, but

17 what I do want to do -- and keen as I am to avoid

18 repetition of points raised by Mr Harvey. One of the

19 things that we suggest -- and it is a question which

20 overarches our concerns in relation to the availability

21 of documentation -- is what we say is the clear history,

22 clear pattern of conflict between Rosemary Nelson in the

23 course of her work and the police, the RUC, at that

24 time.

25 Again, a great many of these matters are already in

 

 

88

 

1 the public domain and a great many of them are known to

2 our clients, but what I respectfully wish to focus on is

3 to look at that background, to look at the level of what

4 we say is hostility and to bring then into sharp focus

5 the importance of the outstanding material to the work

6 of this Inquiry and to the desired aim of achieving the

7 truth.

8 Essentially, the basis for this background pattern

9 of hostility will be threefold: firstly, you will have

10 the evidence of the complainant -- the clients

11 themselves, the suspects in the holding centres for the

12 most part; secondly, you will have documentation

13 generated by the police themselves; and thirdly, you

14 will have evidence from other witnesses who encountered,

15 they say, hostility towards Rosemary Nelson in the

16 course of her professional calling.

17 Now, Mr Harvey has quite rightly indicated that the

18 potential difficulties that face the Inquiry in terms of

19 what one is to make of the initial claims, complaints

20 made about remarks made to the clients, both in terms of

21 Rosemary Nelson's professionalism, in terms of personal,

22 grossly offensive remarks and in terms of her undue

23 sympathy to the causes or crimes of her clients.

24 Ultimately, that will be a matter for the Tribunal

25 to hear the witnesses, the various witnesses, and to

 

 

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1 assess and weigh them up, and as best it can to make

2 a judgment as to where the truth of those various

3 matters lie. If one goes beyond that then and looks at

4 the documentation that has been generated and which has

5 been opened in extenso by my learned friend, one can see

6 that the allegations themselves that were made in

7 relation to the interviews in Castlereagh, in

8 Gough Barracks, when one looks at the documentation of

9 the police itself, one can see that it is not, as was

10 described by one of the investigating officers to the

11 complaint -- it does not beggar belief that officers

12 might jeopardise interviews in the manner alleged or

13 incorporated by the complaints themselves.

14 One sees quite a few numbers of examples of this and

15 what is striking, can I suggest, is the extent to which

16 one hears that and sees that from all various ranks and

17 stations within the RUC.

18 I want to cite one or two examples to the panel, and

19 one of them in fact was touched on by my learned friend.

20 But for example, in the LAJI complaint -- and that was

21 the complaint related to C215, C206, C137 and C320.

22 This was an investigation by a chief inspector in

23 relation to the complaints in relation to death threats

24 which were uttered in respect of Rosemary Nelson. That

25 was the overriding allegation.

 

 

90

 

1 Now, the conclusions drawn by that investigating

2 officer were as follows:

3 "He indicated that serious allegations have been

4 made against detectives, and these must be seen in the

5 context of what was happening in the Lurgan area in the

6 first half of 1997. At the beginning of the year, there

7 was an upsurge in Provisional IRA violence in this part

8 of the Province."

9 He goes on then to describe how each of the four

10 witnesses had been arrested at various times for that

11 paramilitary activity, and obviously they aren't

12 charged, much less convicted. But he goes on that,

13 first of all, he expresses his incredulity at the lack

14 of professionalism exhibited by Mrs Nelson in the

15 conduct of the complaint in terms of presenting evidence

16 to him, and he goes on then to suggest that:

17 "The volume and timing of the voluminous

18 correspondents from various international groups

19 on Mrs Nelson's behalf gives rise to the reasonable

20 suspicion that these complaints are more to do with

21 generating propaganda against the RUC than establishing

22 the truth."

23 So if one even leaves aside the fact that this was

24 an officer who was meant to be the arbiter of fact in

25 a complaint arising out of Gough Barracks, where it had

 

 

91

 

1 to be anticipated that the witnesses themselves were

2 there because they were suspected of paramilitary

3 activity, if one puts aside the fact that he starts from

4 the premise that this complaint must be seen in the

5 context of an upsurge in IRA activity, even if one puts

6 that aside, to one side for the second, we clearly see

7 that he is clearly connecting this upsurge in IRA

8 activity with this complaint in circumstances where

9 Rosemary Nelson herself is, in effect, the injured party

10 and is, in effect, the complainant.

11 In other words, one sees that that in itself is to

12 say that this complaint can be seen as the flipside of

13 an IRA campaign, the other side of which is paramilitary

14 violence.

15 Now, again, you see that in relation to the

16 Garvaghy Road incident, where the same officer -- this

17 is the July 1997 incident, sir -- the same officer

18 comments that Rosemary Nelson's complaint to the police:

19 "Prior to the receipt of the complaint, statements

20 from Rosemary Nelson and others were circulating on the

21 Internet, which perhaps indicates that she was more

22 interested in generating international publicity than

23 she was in cooperating in a fact-finding investigation."

24 So even on this level a certain view of

25 Rosemary Nelson can again be seen.

 

 

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1 Another example of that is the point alluded to by

2 my learned friend in relation to the fracas involving

3 Colin Duffy outside the pub. The direct quote from the

4 conclusion in the letter was this:

5 "Since his release from custody on murder charges

6 involving our two colleagues in Lurgan, he has been

7 proactive, provocative and indeed confrontational, ably

8 supported by a vociferous solicitor,

9 Mrs Rosemary Nelson."

10 Now, the letter, as we have seen it, then is

11 redacted in certain terms but it goes on:

12 "Clearly, there is a strategy by Colin Duffy and his

13 associates to counteract this ..."

14 And one assumes police activity:

15 "... to counteract this and to maintain a propaganda

16 war against the security forces."

17 So again, Rosemary Nelson is seen as being directly

18 involved in that and actively engaged in it, clearly

19 associating her with her clients and their alleged

20 crimes and causes.

21 Again, one sees it in responses made by various

22 interviewed officers in the context of the complaints

23 investigation, and again -- my learned friend has

24 alluded to this -- where you hear officers saying: this

25 isn't coming from the client; this is the solicitor who

 

 

93

 

1 is following an anti-RUC agenda. And again, one sees an

2 example of it even in one of the threat assessments

3 itself.

4 This is the March 1998 threat assessment, where,

5 having rehearsed the fact that Mrs Nelson was well-known

6 for her representation of Colin Duffy in relation to the

7 Lyness murders and in relation to the two RUC officers,

8 the Special Branch officer goes on to say that:

9 "Mrs Nelson remains closely associated with the

10 Republicans and attends functions, rallies, et cetera,

11 in support of their aims and objectives."

12 So really we say at every level one does see this,

13 and this really becomes the background concern. And it

14 is that matter which we say must be kept in focus and in

15 context when one hears of the state of the evidence as

16 it is about to be presented to this Inquiry.

17 Now, I have to say that it came as something of a

18 disappointment, to the very least, and caused a great

19 deal of dismay to our clients when, at the opening of

20 this Inquiry, it was indicated in terms of disclosure

21 that the PSNI had so far failed to respond to requests

22 made by the Inquiry to provide a statement to satisfy

23 it, the Inquiry, as to the integrity of the police

24 databases.

25 Essentially, this is a point which is obviously

 

 

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1 closely related to the conclusions of the Ayling Report.

2 But in essence, Mr Chairman, sir, what we are told is

3 that this Inquiry and our clients -- even before we get

4 to the documentation that we don't have, that the

5 Inquiry itself has nothing by which it can be satisfied

6 as to the integrity, the totality of that documentation.

7 Now, given the fact that we must all regard that

8 material as being key to the deliberations and to the

9 work of this Inquiry, and given the extent to which

10 other matters I have referred to were already public

11 knowledge, it is a matter of great regret and great

12 disappointment that that is the situation now,

13 apparently in or about one year since the request was

14 first made.

15 Mr Phillips further indicates that no satisfactory

16 explanation for that failure has been forthcoming.

17 What are our clients, I ask, to make of that? The

18 fact that information which will go to the truth of what

19 happened here cannot be certified as being not

20 contaminated. It cannot be said -- I think, to use

21 Mr Phillips's words, it cannot be said with any degree

22 of certainty that that information has not been deleted,

23 added to or amended.

24 In those circumstances, we say if the workings of

25 the Tribunal start with that enormous caveat, what does

 

 

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1 that say then about how we are to go forward? Because

2 essentially, sir, we say that with that state of play,

3 there is a very real risk that the misgivings expressed

4 by Mr Ayling in relation to the murder investigation

5 team -- and you will recall he says that we cannot be

6 satisfied of the documentary evidence and the trail of

7 evidence that everything that we should have had has

8 been provided to us. If that is going to be said of

9 this Inquiry so many months down the line, then this

10 Inquiry and the work conducted by it will, I regret to

11 say, be fundamentally flawed. And it remains to be

12 seen, from our client's point of view, whether the

13 Inquiry can be satisfied that that has been rectified

14 and whether it is going to be rectified, in particular

15 by the PSNI.

16 Now, sir, essentially an awful lot of the material

17 I propose to cover has fortunately been covered by

18 Mr Harvey, but that essentially is our client's

19 position.

20 When one looks at the workings of the Tribunal,

21 certain people looking at the evidence to be given will

22 take a view that that couldn't have happened. They will

23 come at it from one viewpoint, one political

24 perspective, call it what you will. Certain people will

25 proceed on the basis: yes, I accept that that happened.

 

 

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1 In essence, and what we say is the real essence of

2 this matter and in terms of the Tribunal's ability to

3 get at the truth, will be the material over which at the

4 outset we see and we hear that there is an enormous

5 question mark.

6 Thank you, sir.

7 THE CHAIRMAN: Thank you very much, Mr O'Hare.

8 Would this be a convenient moment to have a break,

9 Mr Donaldson?

10 MR DONALDSON: Yes, sir, yes.

11 THE CHAIRMAN: Yes, we will have a quarter of an hour break

12 now and then you will have a clear start.

13 MR DONALDSON: Thank you.

14 (3.07 pm)

15 (Short break)

16 (3.20 pm)

17 THE CHAIRMAN: Yes, Mr O'Hare.

18 MR O'HARE: Just before my learned friend, Mr Donaldson,

19 begins his submission, could I correct one matter? And

20 I'm grateful for my learned friend for bringing this to

21 my attention.

22 It may have been taken from my submission that I was

23 making some sort of suggestion that documentation had

24 been withheld by the murder investigation team and that

25 that was a criticism of the Ayling Report. I certainly

 

 

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1 didn't intend any such suggestion and I am happy to

2 correct it.

3 THE CHAIRMAN: Yes. I did not understand you were saying

4 that. Thank you.

5 Yes, Mr Donaldson.

6 Opening submissions by MR DONALDSON

7 MR DONALDSON: Yes, sir. Thank you, sir.

8 In opening a case of this kind, it is not like

9 opening a case where one is appearing for the

10 prosecution or appearing for a defendant where you have

11 a definite case to open. I see my role in this case as

12 counsel for the PSNI in adopting what I hope is

13 a balanced approach without espousing too strongly any

14 particular cause.

15 Now, we are very grateful, sir, to you and your

16 colleagues for giving me the opportunity to make an

17 opening statement, although we are time limited.

18 We will not, therefore, be able to deal in detail

19 with any more than probably some of the points raised by

20 Mr Phillips or by Mr Harvey or Mr O'Hare. I should say,

21 however, at this stage that like the others, I do

22 greatly admire the tour de force of Mr Phillips in

23 presenting the essential features of the evidence to the

24 Inquiry and his very painstaking way in which he has

25 done this, which is a great help to us all.

 

 

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1 Now, it doesn't of course follow that I necessarily

2 agree with all his analyses or some of his propositions

3 which we will come to eventually.

4 Rosemary Nelson was murdered on 15th March 1999. It

5 was by any standards a cruel and brutal murder of

6 a young married woman on her own doorstep, literally,

7 and she has left a husband and children to mourn her

8 passing, and indeed many other people in the community

9 who mourn her passing as well. And as lawyers involved

10 in work at the same time and the same period, we all do

11 greatly regret a murder of this kind.

12 This Inquiry was initiated by the Secretary of State

13 for Northern Ireland with the following terms of

14 reference, which you have heard so often but we must

15 repeat and remind ourselves:

16 "To inquire into the death of Rosemary Nelson with

17 a view to determining whether any wrongful act or

18 omission by or within the Royal Ulster Constabulary,

19 Northern Ireland Office, Army or other state agency

20 facilitated her death or obstructed the investigation of

21 it, or whether attempts were made to do so, whether any

22 such act or omission was intentional or negligent,

23 whether the investigation of her death was carried out

24 with due diligence and to make recommendations."

25 The declared task of the Inquiry, as set out in some

 

 

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1 of the procedural documents, is:

2 "To seek out the truth and to carry out this task

3 ... with rigorous thoroughness and fairness."

4 Now, as Mr Harvey has rightly pointed out I think

5 this perhaps is maybe an optimistic goal. We do hope

6 that the Inquiry will find as much truth as possible,

7 but we doubt very much whether, sir, you and your

8 colleagues with all your application and information

9 will be able to establish necessarily all the truth.

10 We represent the Police Service of Northern Ireland

11 on its own behalf, and as representing the former RUC

12 and serving former or retired officers of the RUC and

13 PSNI with Full Participant status, and we also represent

14 a number of former and serving police officers from whom

15 we have specific instructions.

16 We should say, sir, that the PSNI fully supports the

17 work of this Inquiry. The Chief Constable,

18 Sir Hugh Orde, was and remains concerned that the

19 Inquiry should be fully and properly facilitated in its

20 search for truth in relation to its remit. While it is

21 acknowledged the procedural role of the Inquiry is

22 inquisitorial, we feel sure that the Inquiry will wish

23 to fully test the credibility and the reliability of all

24 the evidence presented to you it, whether oral or

25 documentary, in order to find the truth.

 

 

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1 Now, it is not just simply a matter, as perhaps

2 Mr Harvey has suggested, of simply sitting back and

3 listening to witnesses and saying "thank you very much,

4 you may go"; it is more than that. And of course all

5 the witnesses will, as we hope in the courts, be treated

6 with proper courtesy and regard. Nonetheless, searching

7 questions are going to have to be asked of the

8 witnesses, and of some witnesses more than others, and

9 that applies to all witnesses whether from the PSNI, the

10 RUC or wherever else.

11 At the Inquiry hearing on 16th October last year,

12 Mr Phillips QC, Counsel for the Inquiry, stated that

13 much time and effort had gone into the difficult

14 question of:

15 "... the very serious matters which lie at the heart

16 of this Inquiry, namely the possibility that government

17 agencies or others might have been to some extent

18 involved with, complicit in or responsible for the

19 murder of Rosemary Nelson."

20 That, sir, seems to be the core part of this

21 Inquiry.

22 We were a little concerned, however, with

23 Mr Phillips's use of the words "the possibility":

24 "... looking at the possibility of these matters."

25 Or the use of the words "might have been".

 

 

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1 Now, I don't think Mr Phillips intended that in fact

2 a mere possibility would suffice; that there must be

3 some standard of proof, there must be some level of

4 certainty which the Inquiry is looking for rather than

5 just a mere possibility. I am not making any criticism

6 of Mr Phillips for that, because I don't think he

7 intended that and I think that when, at the opening of

8 this Inquiry, and I am not sure which day it was, I

9 think he did clarify that.

10 Now, however, we prefer the wording of the remit

11 itself:

12 "The dominant focus of the Inquiry has, however,

13 been clearly reiterated by Mr Phillips and is reflected

14 in even greater clarity in the 29 issues which have been

15 helpfully set out by the Inquiry."

16 That is really what we look to when we talk about

17 evidence or witnesses; we look to those issues very,

18 very closely and we would like to think that we will

19 adhere as closely as possible to those issues which seem

20 to be the most important. There may be others later

21 cropping up as the evidence evolves.

22 So we apprehend that initially the Inquiry will

23 concentrate on finding facts bearing on the 29 issues,

24 and in common with any judicial function, the finding of

25 facts will be established only from credible evidence

 

 

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1 and documents of a worthy and reliable provenance.

2 Eversheds, solicitors to the Inquiry -- at least

3 they conducted the question of witnesses -- with great

4 care have diligently taken written statements of

5 hundreds of witnesses, not all of whom will be called to

6 give oral evidence.

7 We are, I have to say, sir, a bit unclear about what

8 weight, if any, can be given to the statements of

9 persons not called to give oral evidence, as it will be

10 difficult, if not impossible, to test the credibility of

11 their utterances without questions from counsel to the

12 Inquiry and counsel for Full Participants.

13 Now, even a casual study of the statements and

14 documents, of which there are many presently available,

15 reveals a vast array of recollections and opinions,

16 frequently unsupported by evidence, which the Inquiry

17 must attempt to disentangle in its vigorous and careful

18 search for the truth.

19 In performing this difficult task, we feel sure the

20 Inquiry will test every piece of evidence in order to

21 find the facts, draw inferences and reach conclusions.

22 This will involve the rejecting of idle speculation,

23 ill-informed opinion, malevolent comments,

24 unsubstantiated allegations and all irrelevant matters

25 with which the numerous statements and accompanying

 

 

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1 documents are replete. Indeed, Mr Phillips quite

2 rightly in his opening has indicated that the Inquiry

3 will investigate and probe many matters:

4 "... in a dispassionate and calm way so that the

5 truth is not itself obscured by emotion, preconception

6 and prejudice."

7 Although the Inquiry is inquisitorial in nature, we

8 feel sure that as in any judicial process a judgment

9 will have to be made about the credibility of any

10 witness or document. In order to test the credibility

11 of any witness who gives evidence, we consider that it

12 may be necessary to question that witness with vigour,

13 if necessary. This will be of particular importance in

14 situations where there are sharp conflicts of evidence

15 on crucial and central issues, for example, the serious

16 allegations against police officers who interviewed some

17 of Rosemary Nelson's clients who are suspected of

18 serious crimes.

19 We feel sure that counsel for the Inquiry will, for

20 the most part, perform this task skilfully and

21 appropriately and we, on behalf of the PSNI, may

22 occasionally suggest some questions for his assistance

23 or some lines of enquiry which we feel that he might

24 profitably follow.

25 However, we may also from time to time seek leave,

 

 

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1 sir, for PSNI counsel to question some witnesses whose

2 evidence is crucial and central to any of the 29 issues.

3 There are two further matters I would like to

4 mention before moving on. The first relates to the

5 calling of witnesses, and we have enquired in

6 correspondence as to the criteria to be applied in

7 making the decision as to which witnesses are to be

8 called to give evidence and which are not to be called.

9 Mr Phillips did helpfully say on Day 1 of this

10 Inquiry in his opening speech that the Inquiry would

11 only wish to hear live evidence from a proportion of

12 witnesses -- the witnesses who provided statements.

13 That is:

14 "Those who are at the heart of the matters we wish

15 to investigate, whose evidence was both material and

16 contested and who might be the subject of criticism."

17 Now, we think, sir, with respect, that this might

18 just need some clarification as we have asked that some

19 of the witnesses on the "not to be called" list should

20 be called, and no doubt that is a matter which may be

21 given, we hope, some consideration.

22 Secondly, we have recently been informed that it is

23 not intended to call a number of former police officers

24 against whom very serious allegations have been made.

25 This is a matter which also causes us some concern. We

 

 

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1 respectfully consider that any serving or former police

2 officers against whom serious allegations have been made

3 in the context of the Inquiry remit and the 29 issues as

4 defined by the Inquiry, should be called as witnesses

5 and given the opportunity to respond in public and under

6 oath to the allegations. These, we believe, are persons

7 who are subject to criticism, which seems to be one of

8 the points made mention of by Mr Phillips.

9 Before this Inquiry was initiated, it is apparent

10 that considerable demands were made to the Government to

11 have an inquiry investigate the circumstances of

12 Rosemary Nelson's death. We don't question the

13 sincerity of persons such as Judge Cory and of many

14 others who expressed the view that a public inquiry

15 should be held. Indeed, immediately after

16 Rosemary Nelson's murder, there were calls from people

17 immediately -- people were saying that this was a murder

18 which resulted from collusion with the security forces

19 and it was, of course, inferred that this murder had

20 been committed by some Loyalist paramilitaries with the

21 collusion of the RUC, or with some other authorities,

22 even military authorities.

23 Of course, that is something which gave this demand

24 for the Inquiry considerable impetus.

25 However, we are concerned that many people,

 

 

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1 including a large number of those who have made

2 statements to Eversheds, have already been very strong

3 in their condemnation of the police and some have gone

4 as far as to say that the police were guilty of

5 collusion with those who committed the murder, and

6 others have stated quite bluntly that the RUC was

7 directly responsible for the murder.

8 There is therefore, we think, a danger that this has

9 created in the minds of many an expectation that the

10 Inquiry must make adverse findings against the RUC, the

11 NIO, the Army or some other state agency concerning

12 responsibility for Rosemary Nelson's death. And indeed,

13 many people will probably feel, unless you do make those

14 sort of findings, you have failed in your duty, but I am

15 sure the Inquiry will not be influenced by such matters.

16 Obviously, we take no issue with the wording of the

17 Terms of Reference and we feel confident that the

18 Inquiry will start with an open mind on its formidable

19 task and reach conclusions and make recommendations

20 undaunted by the unreasonable expectations of any

21 sections of the public or of any participants in the

22 Inquiry, and that includes ourselves.

23 The only proper expectation is that the Inquiry will

24 be conducted in a fair, vigorous and thorough fashion

25 and that the truth will be found. This, we support.

 

 

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1 We would like to comment on some, but time doesn't

2 permit us to comment on all, of the 29 issues at this

3 stage, and we would like to highlight some matters which

4 may have a bearing on those issues to which we refer.

5 We are, however, conscious of the fact that we are

6 not yet in possession of all the available evidence.

7 Indeed, when preparing this opening, we were under the

8 constraint that we did not have many of the statements

9 made, and perhaps yet to be made, by various persons,

10 including former and serving police officers, and

11 Mr Phillips has adverted to these matters in his

12 opening.

13 It is an important part of our duty on behalf of the

14 PSNI to ensure that all relevant evidence is adduced

15 before the Inquiry in order for it to reach fair

16 determinations on the 29 issues. We are also committed

17 to assisting the Inquiry in its pursuit of the truth,

18 however unpalatable that truth may be to any of the

19 participants to this Inquiry, including the PSNI or

20 anyone else.

21 The Chief Constable is concerned that in fact

22 everything relating to the remit should come out, warts

23 and all. We are optimistic in our belief that the

24 Inquiry will reach firm and well-reasoned conclusions

25 after fair and scrupulous assessment of all relevant

 

 

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1 evidence. Our comments, therefore, on the 29 issues and

2 some other possible issues not yet defined are focused

3 almost entirely on matters contained in the Inquiry

4 documents, including the witness statements taken by

5 Eversheds, which are presently available to us.

6 It is noted that Eversheds quite properly raised

7 with many witnesses matters of importance and some

8 delicacy bearing on many issues.

9 We don't wish to be perceived as making a particular

10 case or introducing new matters, and we will therefore

11 confine our comments to those matters contained in the

12 Inquiry documents and perhaps also some material already

13 in the public domain.

14 The Inquiry will be well aware of the considerable

15 and unstinting efforts of the Chief Constable of the

16 PSNI, its officers and staff and have given to the RNI

17 since the date of its appointment in 2004. Every

18 possible facility has been given to those acting on

19 behalf of RNI, including Mr Ayling. Office facilities

20 have been provided and everything that has been asked

21 for has been given in a very open fashion. Exhaustive

22 searches have been carried out and thousands of

23 documents furnished.

24 Every request so far as practically possible has

25 been met in order to facilitate and enable the Inquiry

 

 

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1 to find the truth. The RNI has been given unfettered

2 access to all PSNI material and documents, and in fact

3 more than 16,000 man hours have already been expended by

4 the PSNI in this work and in the conducting of very

5 exhaustive searches throughout police stations in

6 Northern Ireland, and particularly in Armagh and

7 Belfast.

8 In his letter of 24th March of this year to the

9 Inquiry, Mr Alistair Finlay, Assistant Chief Constable,

10 who is taking much to do with this stated -- and I am

11 going to read in a short paragraph what he said:

12 "Considerable efforts have been expended by the PSNI

13 in time, energy, finance, human and technical resource

14 as well as initiative, in complying with the requests

15 and demands of the Rosemary Nelson Inquiry.

16 "All material that was required has been provided to

17 the Inquiry. If, however, further material is

18 identified that is or may be relevant to the RNI, the

19 PSNI undertake to provide the material as soon as it is

20 identified and can be delivered to the Inquiry."

21 We do have some regret about the fact that

22 Mr Phillips found it necessary in his opening to mention

23 that there has been some lack of compliance concerning

24 IT. And he didn't, I think, tell us that he intended to

25 do this.

 

 

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1 Now, a letter of explanation has now been sent, sir,

2 and reference has been made to the fact that some

3 records have not been found. We say it would be quite

4 remarkable if it were otherwise when one considers the

5 passage of many years and the large amount of material

6 involved.

7 I should say in relation to that matter of IT that

8 there was discussion at some time in the past that an IT

9 expert should be engaged to look at the equipment, and

10 in fact this was put in hand, but problems arose and I

11 think the Inquiry may be already aware of those.

12 THE CHAIRMAN: We are.

13 MR DONALDSON: Thank you, sir.

14 There was a member of the force, a chief inspector,

15 who had quite a lot of knowledge of the equipment but

16 not enough, apparently, to deal with the more delicate

17 questions of whether or not it was possible to add on

18 parts to the records or delete parts or amend parts.

19 But what we would urge is this: that if -- the

20 Inquiry, I am sure will keep an open mind about this:

21 that there was no ulterior motive in that, although I

22 think, unhappily, it has been suggested by Mr Phillips

23 and repeated by Mr O'Hare that in fact there might be

24 this suspicion that such things have happened.

25 Now, sometimes documents may not be found or

 

 

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1 information may not be available. We would urge the

2 Inquiry to be careful in not drawing adverse inferences

3 in relation to any missing material unless, of course,

4 the Inquiry took the view there was a deliberate effort

5 to conceal it or not produce it, or there was some

6 thoroughly unsatisfactory explanation for its absence.

7 Sir, may I come to issue 1 at last. Issue 1 we

8 consider to be extremely important, and I am sure the

9 Inquiry thought so too when this was drafted:

10 "Did Rosemary Nelson's work for her clients create

11 conflict with the Royal Ulster Constabulary, the

12 Northern Ireland Office, the Army or other state agency

13 and, if so, why and to what extent."

14 Very important question. Now, we perceive this --

15 and we think the Inquiry will too -- to be a key issue

16 having a considerable bearing on some other important

17 issues.

18 It would appear that Rosemary Nelson was certainly

19 in conflict with state agencies. I really only want to

20 speak about the RUC. Other people can speak for

21 themselves. There was certainly tension, to put it

22 mildly, between Rosemary Nelson and the RUC, and it may

23 be -- and it seems likely -- that this arose because of

24 her work for the Garvaghy Road Residents Coalition and

25 also for Colin Duffy, whose name has been mentioned

 

 

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1 a lot. And Mr Harvey has dealt in very great detail

2 already with some of the causes celebres in which

3 Mr Duffy was involved and in which Rosemary Nelson acted

4 as his solicitor, and not without a great deal of

5 success.

6 You will also recollect too that in this context

7 Rosemary Nelson was very strong on her national and

8 international publicity and very successfully drew in

9 a lot of attention from abroad, and particularly from

10 North America. And indeed, in relation to Garvaghy Road

11 you will see in the statements how she entertained and

12 frequently had dinner with American lawyers and other

13 people coming over and getting up in the early hours of

14 the morning to watch what was going on and to pay a lot

15 of attention to it.

16 So this developed considerably, and you will see

17 later on -- I will come to it -- how in relation to

18 Colin Duffy, how she conducted a very successful

19 publicity campaign in respect of Mr Duffy and the crimes

20 with which he was charged.

21 There is, therefore, some evidence that

22 Rosemary Nelson's relationship with the RUC was normal

23 and professional until some time after Colin Duffy

24 became her client. Thereafter, the relationship became

25 strained and Colin Duffy would appear to be prominent

 

 

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1 among the dramatis personae in the activities of

2 Rosemary Nelson in the two- or three-year period prior

3 to her death.

4 Mr Phillips has also dealt at considerable length

5 with the close relationship, professional relationship,

6 between Rosemary Nelson and Colin Duffy. And he also

7 makes reference to the Lyness and Lurgan police murders.

8 Now, these are matters that are going to be of some

9 importance, of considerable importance, sir, to this

10 Inquiry. But he did suggest -- I think we don't quite

11 agree with him here -- that the Inquiry have no interest

12 in the reopening of these cases. We do agree to the

13 extent, however, that it is not a matter for this

14 Inquiry to retry the murders or to, as it were, have

15 a rehearing and decide who committed the murders; we are

16 not suggesting that at all.

17 What we are suggesting, however, is that it has been

18 highlighted now so frequently, and particularly by

19 Mr Harvey, that these are matters that are going to have

20 to be, we think, considered in much more detail.

21 You will also recollect that there is a considerable

22 body of evidence containing allegations that the police

23 had falsely accused Mr Duffy and fabricated evidence

24 against him for ulterior motives; that is in relation to

25 these matters, and indeed it has been suggested to them

 

 

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1 by -- I think, Mr Harvey dealt with it too -- in

2 relation to the assault or contretemps outside a public

3 house in the early hours of the morning. Can I just say

4 in passing -- this will be dealt with, of course,

5 later -- that the police had a very difficult function

6 in Lurgan and there was a perception of Mr Duffy by the

7 police -- and I don't want to go into it in detail --

8 which of course justified perhaps paying some attention

9 to Mr Duffy.

10 I have already referred to the fact that

11 Rosemary Nelson conducted a national and international

12 campaign directed at advancing the proposition that

13 Mr Duffy had been falsely charged and was totally

14 innocent. We consider that the police have the right to

15 respond to these extremely serious allegations if they

16 can.

17 We consider also, with respect, that the Inquiry

18 should, if possible, establish the truth especially when

19 it is relevant to do so. We also consider that the

20 Inquiry may wish to consider closely the nature of the

21 professional and social relationships between Mrs Nelson

22 and her client and the effect which it had on her life,

23 work and practice.

24 It is respectfully suggested, sir, that the findings

25 may bear not only on issue 1 but on other issues such

 

 

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1 as 2, 4 and 12.

2 We draw attention to some of the evidence which

3 bears on these matters and we note that Eversheds, when

4 interviewing witnesses, frequently covered the affairs

5 of Colin Duffy, including his arrests, interviews,

6 charges, convictions, appeals and other matters. The

7 evidence tends to suggest that Mr Duffy had considerable

8 influence on Rosemary Nelson, and I draw attention to

9 a few of the statements which may maybe tend to support

10 it.

11 Now, the name Edmund Lynch is very familiar in the

12 papers in this case. Edmund Lynch was, as it were, the

13 chief executive -- I am not sure how he describes

14 himself -- of LAJI, which is a group of lawyers who had

15 an interest in Northern Ireland affairs.

16 14 days, just 14 days after the murder, the murders

17 of the police officers in Lurgan, he wrote a letter on

18 30th June saying that reports indicate that the RUC has

19 arrested the wrong man in Colin Duffy.

20 Another witness is Kenneth McKee, solicitor. He was

21 a solicitor who worked in Rosemary Nelson's practice,

22 and he says that:

23 "When Colin Duffy was arrested for the murder of

24 John Lyness in 1993, the practice was already doing work

25 for Duffy."

 

 

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1 And then he adds:

2 "During the period we represented Colin Duffy,

3 neither Rosemary nor myself had any problems with the

4 police."

5 And he further states:

6 "It was only after his release and later re-arrest

7 on different charges that things changed."

8 I understand him to mean that that relates to the

9 period immediately following his release after being

10 acquitted of the Lyness murder and just before he was

11 arrested for the police murders, as I recall them.

12 There is another police witness, P149. He says that

13 he had a good working relationship with Mrs Nelson, but

14 later:

15 "... her behaviour changed."

16 And reference is made to Duffy's arrest for the

17 Lurgan police murders, and he makes mention of the

18 solicitor/client relations and he uses the word

19 "a special bond".

20 Now, Rosemary Nelson frequently highlighted the

21 Colin Duffy cases and, as I have indicated, she wrote to

22 numerous persons and NGOs about him, including

23 Mr Allmand and Mr Peter Eikenberry, American lawyers.

24 She also introduced Colin Duffy to various American

25 lawyers, for example, a Mr Devine, Sharon Farrell and so

 

 

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1 on. And the latter says about the Duffy case:

2 "It really stands out in my mind."

3 She was taken to see Colin Duffy in prison and

4 Rosemary Nelson also took others, including John Foley

5 who, at paragraph 17 of his very long statement was

6 critical of Mr Justice Kerr, now the Lord Chief Justice

7 of Northern Ireland, who was the trial judge in the

8 Lyness trial and he convicted Colin Duffy in that case,

9 convicted of the murder. But as has already been

10 pointed out, he was acquitted on appeal and reference

11 was made to the witness in some detail by Mr Harvey.

12 Now, I should just pause there for a moment to say

13 this: that in view of what has happened, in view of the

14 detailed way in which Mr Harvey has dealt with this, we

15 now feel, sir, we did put in a statement from

16 a Detective Inspector Forde dealing in great detail with

17 this and he exhibited to his statement the judgment of

18 Mr Justice Kerr, as he then was, and which Mr Harvey had

19 been unable to find.

20 We now respectfully suggest that in fact that

21 statement should be admitted as part of the evidence to

22 deal with that, because on behalf of PSNI we feel that

23 there is arising from that an extremely serious

24 allegation about fabrication of evidence, about trying

25 to convict an innocent man, et cetera. And we feel

 

 

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1 therefore, sir, that that is something which the Inquiry

2 may find of benefit in looking at the evidence of

3 Detective Inspector Forde.

4 I said that I was going to refer to some other

5 witnesses in this issue -- another important witness in

6 this regard is Caitlin McVeigh, who is a sister of

7 Rosemary Nelson. And she says:

8 "I think that Rosemary began to feel that she had

9 blurred the line between client relationships and

10 friendships."

11 And she makes reference to a house being rented to

12 Colin Duffy by Rosemary after Colin Duffy's marriage had

13 broken up.

14 Now, unfortunately, I think that Caitlin McVeigh is

15 on the "not to be called" list and it might have been

16 helpful, I think, if she could have further explained

17 that statement.

18 Another important witness will be Alan Parra, who

19 was the United Nations civil servant working with

20 Mr Cumaraswamy. And he says in his statement:

21 "It was immediately clear to me that Rosemary had

22 absolute disdain and hatred for the RUC. There was

23 absolutely no question about that. Rosemary did not

24 trust them."

25 Finally -- although there are many more witnesses

 

 

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1 who deal with this issue, but I am just giving you a

2 sample -- there was Mark McNulty, a solicitor who used

3 to work in Rosemary Nelson's office. He left in late

4 1996, and he says:

5 "I never encountered any impropriety from the

6 police."

7 Thus, no doubt, the Inquiry will want to look

8 closely at these matters and may well conclude that

9 Colin Duffy had an unusual relationship with Mrs Nelson,

10 and the Inquiry has appropriately identified issue 1 as

11 being of importance and we agree, and we would

12 respectfully suggest that the Inquiry consider carefully

13 in this context what we call the Duffy factor, because

14 issue 1 is the portal to so many other issues of the

15 other 28 issues in this matter, or many of them. And

16 indeed in considering this issue, the Inquiry may wish

17 to look closely at some of the material relating to

18 Mr Duffy.

19 He made a 23-page statement in which he has

20 portrayed himself as the innocent victim of the legal

21 system in Northern Ireland and of police efforts to

22 frame him for murders. And he also made written

23 complaints, about which you have already heard and no

24 doubt will hear a lot more.

25 But due to these allegations, we respectfully

 

 

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1 consider, sir, that the Inquiry should investigate the

2 following two questions: firstly, was Mr Duffy properly

3 arrested and charged with the murders? That is not

4 asking the Inquiry to say whether he was guilty or

5 anything of that sort, it is just whether or not the

6 proper procedures were followed and was he properly

7 arrested and charged with the murders.

8 The second question is: was the RUC guilty of any

9 misconduct in the investigation of these murders and the

10 collection of evidence?

11 Now, that is a very fundamental question and it

12 bears on all the matters which have been raised already,

13 and particularly, again, by Mr Harvey, who dealt with

14 them in detail and I think really has portrayed Mr Duffy

15 as being a person who has been greatly wronged due to

16 the misconduct of the RUC.

17 Also we consider that the Inquiry might want to look

18 closely at the significance of the efforts made by

19 Rosemary Nelson on behalf of Colin Duffy. Now,

20 Mr Phillips has adverted to this when he pointed out in

21 his opening that Rosemary Nelson was in contact with and

22 in communication with the Irish Government who, in

23 response to her concerns, was raising them and other

24 questions with their opposite numbers on the British

25 side. And he says this was in addition to:

 

 

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1 "... the ordinary business of a solicitor preparing

2 a defence."

3 Now, we quite agree with that view. It is necessary

4 to ask oneself the question: why was Rosemary Nelson

5 making these superhuman efforts? Indeed, they were

6 tremendous efforts and anyone with any experience in

7 criminal practice in this country will immediately

8 understand that to go to these lengths was really quite

9 unprecedented.

10 You will recollect, sir, that a Mr Eamon O'Cuiv, who

11 is a minister in the Dublin government, he said that he

12 met Mrs Nelson through the Colin Duffy case, and he says

13 that, "Every time Colin Duffy was arrested, Mrs Nelson

14 would ring me". Now, that was very good service for

15 Mr Duffy and the enormous amount of publicity brought to

16 bear in favour of Mr Duffy also needs some

17 consideration.

18 We draw attention particularly to -- in this context

19 of her efforts -- the Lurgan police murders case and the

20 finding -- you will be aware that she found numerous

21 alibi witnesses and of course it will be necessary to

22 consider their credibility. And interestingly enough,

23 Mr Duffy in his statement to the Tribunal said that:

24 "She went out into the Kilwilke Estate scooping up

25 witnesses."

 

 

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1 Witnesses he hadn't identified to her. And also

2 there were two categories of witness. One category was

3 those creating an alibi, and the second category were

4 those denigrating the credibility of witness D.

5 Witness D, you will recollect, was an eye-witness or

6 claimed to be an eye-witness to the actual murder and

7 that she was standing quite close by and she saw the man

8 shooting. He wasn't wearing a mask, and when he turned

9 round to look at her she immediately knew him as -- she

10 called him Colly Duffy. She had been at school with

11 him.

12 Now, for reasons, no doubt, you will hear a lot more

13 about, the DPP decided that there would be no

14 prosecution.

15 If I might move to issues 2 and 3, these concern

16 threats and awareness of threats to Rosemary Nelson's

17 personal safety and we will deal with these insofar as

18 they may affect the RUC. It might be noted that these

19 two issues overlap issues 4, 5 and 6. I will not refer

20 to those. The Inquiry is well aware of them, I am sure.

21 As it would appear that central to these five issues

22 are the allegations that members of the RUC made threats

23 and abusive comments about Rosemary Nelson to her

24 clients during interviews, in respect of each of the

25 allegations, the Inquiry will no doubt consider whether

 

 

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1 or not the allegations were made or are more likely than

2 not to have been made, or where does the truth lie.

3 These issues we think should be viewed in the

4 context of the statistical evidence of complaints

5 against the RUC in the decade 1990 to the year 2000. I

6 am going to set out, sir, a series of some statistics

7 which I hope I will be forgiven for mentioning in this

8 context.

9 The first is that between 1990 and 2000 there were

10 over 50,000 complaints made against the RUC. Of these,

11 609 were substantiated; more than 20,000 were not

12 substantiated. 6,368 were informally resolved and

13 23,052 were withdrawn or incapable of investigation.

14 In 1999 to 2000, a total of 372 complaints were

15 completed against the RUC for oppressive

16 conduct/harassment: One of these was substantiated;

17 121 were not; and 127 were informally resolved; 54 were

18 withdrawn; and 69 were incapable of investigation.

19 Of the 4,159 complaints completed during 1999 to

20 2000, 1,869 -- that is 45 per cent almost -- were fully

21 investigated and 40 per cent were fully investigated the

22 previous year.

23 In 1999 to 2000, a total of 80 disciplinary charges

24 against 47 officers were heard and completed at formal

25 disciplinary hearings. Of the 47 officers, charged

 

 

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1 44 cases arose as a result of reports by supervisory

2 officers, and three from complaints made by members of

3 the public. Some significance, sir, to note there is

4 that the supervisory officers were taking their job

5 seriously and taking action against officers who were

6 not doing their duty properly.

7 In the year 2001, the Police Ombudsman who had been

8 recently appointed conducted research to establish:

9 "... levels and nature of intimidation, harassment

10 and/or threats made towards solicitors and barristers by

11 police officers and the circumstances surrounding such

12 incidents."

13 I think this was conducted by a postal method, by

14 sending out letters to members of the legal profession.

15 I think I received one myself. The research established

16 that 98 per cent of those surveyed did not report

17 a problem in their dealings with police officers.

18 That is a very significant figure, 98 per cent.

19 55 respondents said that they had at some time

20 experienced intimidation, harassment or threats from the

21 police. During interviews, the 44 respondents said they

22 felt the incidence of intimidation and harassment they

23 had experienced were of a relatively minor nature.

24 And I suppose we will make the comment later, but

25 human nature being what it is, sometimes personality

 

 

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1 conflicts occur and arguments arise.

2 Between 1990 and 2000, a total of 2,159 complaints

3 were made at terrorist holding centres. In resolving

4 the issues, we would invite the Inquiry to bear in mind

5 the following: firstly, the reasons why police

6 interviewers might want to make threats against

7 Rosemary Nelson's safety. What could this achieve? Why

8 would they run the risk of making threats knowing that

9 they could easily be identified by the interviewees? Of

10 course, I am speaking of actual threat, serious threats,

11 sir; I am not speaking of some kind of abusive remarks,

12 because the Inquiry has drawn a distinction between

13 threats to kill, serious threats and abusive remarks.

14 Again, it may well be that from time to time police

15 officers do make remarks which they oughtn't to make and

16 perhaps, to an extent, that might be understandable

17 although not excusable. But to make threats to say

18 "Rosemary Nelson will be dead" or remarks like that, are

19 a different kettle of fish altogether and something that

20 one just wonders why on earth would a police officer

21 make such an absurd statement.

22 The second point to be considered in this is the

23 promptness or otherwise of the reporting of the

24 allegations and the assistance, if any, given by the

25 complainants to later investigations. You will find,

 

 

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1 sir, that many of these allegations were not reported at

2 the time, were not reported for weeks, and indeed in

3 some cases were not reported for months, and you have to

4 wonder why. And thirdly -- and this may be part of the

5 answer -- whether or not there was a policy and practice

6 by terrorist paramilitaries or suspects in making false

7 complaints for ulterior motives; that is to impede the

8 progress of the Inquiry or to use it later when

9 challenging the admissibility of the evidence.

10 Most lawyers in Northern Ireland have had a lot of

11 experience of that, where complaints are made which may

12 in fact go to the root of the admissibility of

13 confessions.

14 There is a large body of evidence here -- whether

15 you accept it or not, sir, is a matter for you and your

16 colleagues -- indicating that there was a common

17 practice for suspects who were being questioned by the

18 police to make complaints, and indeed Dr Hayes in his

19 report has himself identified and referred to this

20 phenomenon. And a number of witnesses say -- and I am

21 quoting directly:

22 "These complaints occur regularly. They were used

23 as delaying tactics. Complaint tactics were common."

24 An Assistant Chief Constable who is not named

25 comments on the prevalence of anti-interrogation

 

 

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1 techniques, and another says:

2 "These were orchestrated attempts by Republicans to

3 smear the RUC."

4 Fourthly, a consideration, we suggest, that the

5 Inquiry take into consideration the statistics

6 concerning complaints made against the RUC during the

7 1990s and the prevalence of those complaints. And

8 indeed, one will see how often these complaints were not

9 pursued promptly and indeed were not pursued at all.

10 In relation to anti-interrogation techniques, of

11 course, it is the oldest trick in the world which the

12 police experience, and that is that a witness or

13 a suspect simply doesn't speak and can maintain that

14 attitude for days and days at a time. And indeed, you

15 will have the opportunity later, I think in the

16 Mulvihill exhibits, where he does look -- he went into

17 it in very great detail and you will see the interview

18 notes of many of the officers who made these interview

19 notes at the time, that in fact they maintained silence

20 during the interviews.

21 Now, fifthly in this regard, you will have to

22 consider the weight to be given to Commander Mulvihill's

23 reports and evidence. I will comment on this later when

24 dealing with issue 8, but:

25 "By letter of 13th August 1998, commander Mulvihill,

 

 

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1 a senior officer at New Scotland Yard was suggested,

2 with the agreement of ICPC, to carry out investigations

3 into various complaints and to review previous

4 complaints."

5 Now, Mr Harvey has attacked very strongly the

6 credibility of the Mulvihill investigations and seems to

7 suggest that really it was something of a whitewash from

8 beginning to end.

9 I think that Mr Phillips took a rather more balanced

10 view of it, a much more balanced view, as one would

11 expect, although he did raise several points of what I

12 would describe as potentially mild criticism, but not

13 quite in the same league as Mr Harvey.

14 Now, the first -- Mulvihill 1, I am calling it

15 because this was his first investigation. It was an

16 investigation of a complaint made by the Lawyers

17 Alliance for Justice in Ireland, LAJI, on behalf of

18 Mrs Rosemary Nelson.

19 Mr Lynch alleged on the basis of information from

20 four suspects, namely C220, C206, C215, and C138, who

21 had been interviewed by police detectives, that death

22 threats had been made against Mrs Nelson and that these

23 had been instigated by an RUC detective. All four

24 declined to be interviewed by P146. He was a chief

25 inspector from Complaints and Discipline who had charge

 

 

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1 of the investigation and about whom you will hear quite

2 a lot and have already heard quite a lot, because he was

3 the investigating officer who is later challenged by

4 Miss McNally from ICPC, and there was a problem about

5 issuing a certificate of satisfaction.

6 In any event, these four declined to be interviewed

7 by the chief inspector. Later, after the appointment of

8 Mr Mulvihill, C200 and C138 were interviewed by

9 Mulvihill, but C206 and C215 did not attend for

10 interview. Now, I refer to Mulvihill -- with no

11 disrespect; Mr Mulvihill or his team, but I will simply

12 call it Mulvihill.

13 All of the police officers who were concerned in

14 interviewing the four suspects were interviewed by

15 Mr Mulvihill. One has to bear in mind that Mr Mulvihill

16 was a very experienced and highly respected officer from

17 the Met and his appointment had been approved by ICPC,

18 and in fact, if I recollect rightly, Miss McNally and

19 a colleague went over and met him in London and no doubt

20 were encouraged by the meeting and did not hesitate to

21 approve his appointment.

22 The conclusions of Mr Mulvihill in this regard are

23 important. He made the following observations:

24 "Many of the alleged complaints, if made, have an

25 element of school ground or adolescent name calling

 

 

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1 about them."

2 Now, I think it has been hinted at again by

3 Mr Harvey that this, somehow or other, was, as it were,

4 belittling the seriousness of the comments. But you can

5 form your own judgment about that, sir, and your

6 colleagues, as to whether or not that is what

7 Mr Mulvihill was doing.

8 The next observation he made was that the complaints

9 appear to be initiated by Mrs Nelson who has approached

10 the witnesses several months after the event to provide

11 statements.

12 Now, you will have to consider the significance of

13 that because it appears to be very significant. There

14 appeared to be a general consensus among the police

15 officers that this was a concerted attempt to undermine

16 the professionalism and credibility of the RUC. One may

17 take the view that perhaps the reason the police

18 officers would deny this or say this was because they

19 were trying to deflect criticism of themselves, but

20 again, this is something that will have to be judged by

21 the Inquiry.

22 Then he says:

23 "Finally, and most importantly, there is no evidence

24 to support the contention that Mrs Nelson's life was

25 ever put at risk."

 

 

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1 That is, of course, dealing with this particular

2 single investigation.

3 Then I come to what I call Mulvihill 2. This was

4 a separate investigation of a complaint made by

5 Mrs Nelson and Mr Colin Duffy against officers of the

6 RUC. The allegations were:

7 "(a) conspiracy to pervert the course of justice by

8 police officers concerning the detection, questioning

9 and charging of Colin Duffy with the Lurgan police

10 murders."

11 And secondly:

12 "Conspiracy to pervert the course of justice by

13 [P149] in relation to his dealings with [C199]."

14 All of the officers were interviewed. Mulvihill

15 concluded that the first conspiracy allegation was

16 disproved.

17 Just pausing there, there is a question that has

18 been raised about standard of proofs and so on, and one

19 of the criticisms of the system was that in fact the

20 standard of proof was the criminal standard of proof, of

21 proof beyond a reasonable doubt. But one can see here

22 that he actually finds that the first allegation was

23 actually disproved, so we don't even have to worry here

24 about standard of proof.

25 And in respect of the second conspiracy allegation,

 

 

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1 he states:

2 "I can find nothing in the actions of Detective

3 Constable [P149] which merits any criticism at all."

4 Now, I come to Mulvihill 3. This was an

5 investigation after a complaint made by Mr C208 and

6 Mrs Nelson, solicitor:

7 "... against officers of the RUC. [C208] alleged

8 that when interviewed by the police, two police officers

9 made verbal threats to his life and to the life of

10 Rosemary Nelson."

11 After interviewing C208 and the police officers

12 concerned, Mulvihill concluded:

13 "I am satisfied that there is not a shred of

14 evidence against the officers complained of."

15 Again, you will see, sir, that the standard of proof

16 is not really an issue here. It is a very, very strong

17 statement, and if you find Mr Mulvihill to be

18 a fair-minded man carrying out a thorough investigation,

19 then I think it may be difficult to really set aside

20 these bona fide findings made by him. And indeed, you

21 will remember that initially perhaps in a moment of

22 weakness, Mr Edmund Lynch complimented him on the

23 fairness and thoroughness of his enquiry.

24 It should also be noted of course that all these

25 interviews conducted by Mulvihill and his team were

 

 

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1 supervised by ICPC representatives, and the ICPC granted

2 certificates of satisfaction in relation to these

3 investigations. So that in considering the weight to be

4 given to the Mulvihill findings, the Tribunal will no

5 doubt take into account the criticisms subsequently made

6 by Mr Paul Donnelly of the ICPC and judge their weight

7 and validity.

8 Now, there was another category of complaints, sir,

9 which were not reviewed by Mulvihill; they were not part

10 of his remit. These concerned some named individuals,

11 namely Shane McCrory, Brian Loughran and C200. And

12 again, Mr Phillips in his own thorough way, has covered

13 these.

14 I will summarise them very quickly. First of all,

15 Brian Loughran was a client of Rosemary Nelson, and on

16 6th November 1997 he gave a signed statement of

17 complaint about two weeks later after the events

18 actually complained of, and his complaint was fully

19 investigated and the ICPC gave a certificate of

20 satisfaction and no action against the police officers

21 against whom the allegations were made was recommended.

22 Now, there has been some criticism about the

23 effectiveness of ICPC and, again, one will know that the

24 Complaints and Discipline Department of the RUC was

25 a separate compartment, quite separate from the force,

 

 

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1 with its own staff, its own officers who did this kind

2 of work. They were people capable of acting

3 independently and not influenced, you may think, by

4 other members of the RUC, although it was the basis of

5 criticism that in fact -- and it has always been the

6 basis of criticism -- that it was a wrong thing to have

7 police officers investigating police officers.

8 But the system under ICPC was introduced whereby

9 there was this supervisory role, they were entitled to

10 be present at all the interviews of police officers and

11 anyone else, and if they were not satisfied, they had

12 this very strong power to veto the result if they

13 wanted to.

14 In relation to the next person, Shane McCrory, he

15 was also a client of Rosemary Nelson and he made an

16 unsigned statement to CAJ dated 27/2/98 about the

17 circumstances of his arrest on 15th December 1997. That

18 was more than two months earlier. The Complaints and

19 Discipline investigation report stated that

20 Rosemary Nelson and Shane McCrory did not cooperate.

21 The officers concerned were interviewed and they

22 disputed the allegations and no disciplinary action was

23 recommended for the simple reason, of course, that the

24 matter had not been pursued. And you will recommend,

25 sir, that in fact throughout many of the investigations

 

 

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1 Rosemary Nelson, I regret to say, and those for whom she

2 acted, were singularly uncooperative.

3 Then finally in this trio of complainants is C200,

4 who is also a client of Rosemary Nelson and he alleged

5 offensive remarks had been made about Rosemary Nelson at

6 an interview. And Rosemary Nelson wrote letters of

7 complaint on 27/2/98 and on 2nd March 98, but C200 would

8 not cooperate with Complaints and Discipline and so

9 there was no further progress in that regard.

10 No doubt the Inquiry may wish to probe these matters

11 further, although it would appear that the complaints

12 were fully and properly investigated.

13 Now, moving on, issues 2 and 4, we say are closely

14 associated and very substantial. They in fact related

15 to the threats that were made to Rosemary Nelson's

16 personal safety and also to the adverse behaviour

17 allegations.

18 So far, we have drawn particularly to attention the

19 allegations concerning RUC officers, but there are also

20 allegations of threats and adverse comments coming from

21 other sources, some of which, or many of which haven't

22 been identified, and we have been able to discern from

23 the papers a total of some 34 allegations of threats,

24 adverse comments, et cetera, concerning Rosemary Nelson,

25 allegedly made by members of the RUC and by unidentified

 

 

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1 persons other than the RUC.

2 In this second category -- that is concerning people

3 other than the RUC --some of the alleged incidents were

4 brought to the attention of the RUC but many were not.

5 For example, after Colin Duffy was released, after the

6 quashing of his conviction for the murder of Mr Lyness,

7 reference is made to a threat-to-kill telephone call to

8 Rosemary Nelson's office, but this was not reported or

9 didn't come to the attention until after her murder.

10 And you will see a reference to this in Judge Cory's

11 helpful report at paragraph 4.68. Reference is also

12 made to Rosemary Nelson receiving a bullet through the

13 post, but this was not reported until after her murder,

14 and indeed there are other instances of unreported

15 threats, and I am not purporting to mention them all.

16 There was one relating to a target which had been

17 placed, signifying that she might be the target for

18 someone shooting at her, and that is referred to in John

19 Foley's statement, but that didn't come to attention

20 either. If I might move on to issue 7 -- I should just

21 perhaps identify issue 7. Issue 7 is:

22 "To what extent did Rosemary Nelson and/or others

23 acting on her behalf seek assistance from the RUC, NIO,

24 Army or other state agency regarding concerns for her

25 personal safety and their reaction thereto."

 

 

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1 And it is clear that Rosemary Nelson did not

2 directly seek help from the RUC concerning her personal

3 security. It is fairly clear, at least one gets the

4 strong impression, that Rosemary Nelson did not want to,

5 as it were, lower herself to be seeking help from the

6 RUC and she didn't ever approach the RUC in any way and

7 say, "Please could you help me, I feel I am under

8 threat, I am in some danger, et cetera, would you do

9 something for me?" And of course the reason is that

10 perhaps she did not trust the RUC, and that may have

11 been a sincere feeling strongly held or felt by her.

12 But again, these are matters which the Inquiry will have

13 to consider.

14 It is unclear whether she felt the need to have

15 personal security. To some, she did apparently express

16 her desire to have security, but to others she did not

17 demonstrate any concern about her personal safety. And

18 there is nothing to indicate that she took any

19 precautions herself, even of the most basic nature.

20 If you see, for example, the statement of her

21 sister, Caitlin McVeigh, she says in her statement that

22 she said they couldn't say if Rosemary would accept

23 protection, and indeed according to a note from

24 Miss Jean Forest, Rosemary Nelson does not seem to have

25 been prepared to accept her advice or seek help.

 

 

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1 I refer to that document later.

2 There are some people such as Thomas Burke, another

3 American witness, who said she wanted to be in the KPPS,

4 and Joseph Duffy and I think Mac Cionnaith said that he

5 demanded protection for Rosemary Nelson. Again, this is

6 an area covered very thoroughly by Mr Phillips and one

7 gets, again, the strong impression that in fact

8 Mr Mac Cionnaith and Mr Duffy, although they got some

9 protection for security for themselves, did not lay it

10 down as a pre-condition that they would not accept

11 security unless Rosemary Nelson got it.

12 But I think the impression one gets from all of that

13 is that it seems unlikely that either Mac Cionnaith or

14 Joseph Duffy had demanded protection for

15 Rosemary Nelson.

16 Halya Gowan, another witness, says that

17 Rosemary Nelson never talked to her about her security,

18 although they knew each other well. It is quite clear

19 that Rosemary Nelson never applied for security under

20 the KPPS scheme. Mr Farrell concedes that

21 Rosemary Nelson did not seek help concerning her own

22 safety, and Mr Mageean says that Rosemary Nelson:

23 "... was never going to apply for KPPS."

24 That is in paragraph 98 of his statement.

25 And Tanya Sillem, another witness, says that

 

 

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1 Rosemary Nelson was not concerned about her security.

2 The question then arises really as to why was

3 Rosemary Nelson complaining about threats and showing

4 letters to others if she was not concerned about her

5 personal security?

6 Now, you will see an example of that in the papers,

7 especially the statement of Moya St Leger, who states

8 that she was shown these letters and she adds "I didn't

9 know why". Because she wasn't making any particular

10 point about the letters, and indeed you will find many

11 instances of her showing letters to people, pulling them

12 out of her handbag and showing letters, maybe not

13 reading them, and so on, but never saying "I really do

14 feel I need some protection here". One has to ask

15 oneself why was she doing this.

16 Now, on Day 5 of the opening, Mr Phillips dealt in

17 detail, as I have said, with the Mulvihill

18 investigations and reports, and it would appear that

19 with his usual great industry he had found some points

20 which might be regarded as criticisms of

21 Commander Mulvihill's work.

22 Now, I may have read him wrongly about this, but the

23 Inquiry no doubt will wish to consider the weight of any

24 such possible criticisms by Mr Phillips, which of course

25 would carry much more weight than perhaps the criticisms

 

 

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1 of others.

2 Now, I come to issue number 8, which states:

3 "The response of the RUC, NIO, Army or other state

4 agency to any knowledge of threats or adverse behaviour

5 to or about Rosemary Nelson, including the investigation

6 of the same."

7 This concerns the response of the RUC to allegations

8 made by Rosemary Nelson and her clients, and the

9 Tribunal intends to consider the response of the RUC to

10 various complaints, and in this respect consideration no

11 doubt will be given to the report of the investigation

12 carried out by Chief Inspector P146. Dissatisfaction

13 was expressed by ICPC, so Commander Mulvihill was

14 appointed to review and undertake further

15 investigations.

16 Now, it is intended at this stage, sir, to draw

17 attention to a review carried out by

18 Commander Mulvihill. This was the fourth limb of his

19 remit. He had done three specific investigations right

20 from the beginning, but this report is entitled,

21 "A review of Royal Ulster Constabulary investigations

22 into various allegations made against RUC police

23 officers by Colin Duffy, Rosemary Nelson and the Lawyers

24 Alliance for Justice in Ireland".

25 The need for this review arose because the ICPC were

 

 

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1 dissatisfied with the previous RUC investigations

2 alluded to above, and that of course was the Inquiry

3 carried out by P146, the Chief Inspector.

4 So he was invited to look at this. I think really

5 his remit was to consider whether or not that was an

6 appropriate investigation in the sense that it was

7 whether or not the allegations made by the ICPC -- what

8 substance there was in them.

9 Again, everybody was happy that he should perform

10 this important exercise.

11 And he concluded that:

12 "Essentially sound enquiries were undertaken in the

13 earlier investigations."

14 He reported that the general performance of P146 was

15 satisfactory. He was satisfied that the facts were

16 established during the original enquiry and found

17 nothing to support the proposition that the

18 investigation had been irreparably undermined.

19 Significantly, he also found that conspiracy

20 theories against the RUC to pervert the course of

21 justice or to conceal the facts were wholly unfounded,

22 and he also observed:

23 "This series of enquiries has been fraught as

24 a consequence of varying perceptions, differing

25 interpretations, communications and administrative

 

 

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1 hiccups and problematic professional relationships

2 which, I believe, led to the creation of something

3 allying to an entirely false conspiracy theory notion."

4 And I believe that this further part of the

5 investigation was approved.

6 Now, we don't expect this Inquiry to accept without

7 close scrutiny the conclusions of Commander Mulvihill,

8 Judge Cory, the United Nations Special Rapporteur, the

9 Police Ombudsman or the conclusions in any other report.

10 But we do feel that if all or any of the findings and

11 conclusions of Mr Mulvihill are to be rejected, we feel

12 that that will require particular care because he came

13 in as a totally independent person. And more

14 importantly, carrying out an investigation he had

15 everything to look at, he was able to interview the

16 complainants if they turned up, all of the police

17 officers -- remember, he is a very experienced man who I

18 am sure is good judge of character and could form his

19 own view about the people he was interviewing. He had

20 the advantage of being able to read all the interview

21 notes and to consider it all in absolute and careful

22 detail, unlike Judge Cory and others, who in fact

23 conducted really a paper exercise only. They did not

24 see any human face when they were doing the work, but

25 the cold papers.

 

 

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1 So we point out that that was probably to an extent

2 much the same position with Mr Cumaraswamy, although he

3 did see people. But I am going to come to

4 Mr Cumaraswamy in some more detail, because obviously

5 his evidence is very important.

6 Judge Cory accepted that considerable resources were

7 devoted to the investigation of Rosemary Nelson's formal

8 complaints against the RUC, and I think, sir, that that

9 is something that this Inquiry may well conclude, that

10 in fact all of these matters were very thoroughly

11 investigated and done very credibly by the people who

12 did them.

13 Now, sir, I am about to --

14 THE CHAIRMAN: Mr Donaldson, would that be a convenient

15 moment?

16 MR DONALDSON: Very convenient, sir.

17 THE CHAIRMAN: We look forward to hearing from you in the

18 morning.

19 MR DONALDSON: Thank you.

20 (4.43 pm)

21 (The Inquiry adjourned until 10.15 am the following day)

22

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1 I N D E X

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4 Opening submissions by MR HARVEY ................. 32

5 Opening submissions by MR O'HARE ................. 86

6 Opening submissions by MR DONALDSON .............. 97

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