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Full Hearings

Hearing: 29th April 2008, day 11

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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 Tuesday, 29th April 2008
commencing at 10.15 am


Day 11

 

 

 

 

 

 

 


 

1 Tuesday, 29th April 2008

2 (10.15 am)

3 Opening submissions by MR PHILLIPS (continued)

4 THE CHAIRMAN: Yes, Mr Phillips.

5 MR PHILLIPS: Sir, if you remember, we had got to the point

6 where I was explaining about the security force activity

7 and I listed the four areas we would be looking at in

8 particular, and they were: the vehicle checkpoint on

9 Castor Bay Road; the man in the balaclava and what

10 appears to be some, as I put, unexplained Land Rover

11 activity; third, the two helicopters and their crews;

12 and then finally some alleged and unexplained activity

13 alleged in that case by some Pat Finucane Centre

14 witnesses.

15 Now, it may help, sir, before we get into looking at

16 those four, to look at the map we have prepared of

17 Lurgan which shows the location of the various

18 incidents. I hope that can be produced. Yes.

19 Now, this works in what is described as the order of

20 animation. So if we just have the first one, please.

21 (displayed) That is the house, and you can see that the

22 junction that we are concerned with here is where that

23 road, Ashford Grange, meets the road which comes down

24 from the top of the map, Castor Bay Road, turning into

25 Lake Street. Could we go to the next bit, please.

 

 

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1 That is the first of the incidents which we will

2 hear reference to in relation, for example, to the

3 helicopter activity, the hoax device in Lake Street at

4 5 o'clock on the Sunday. It had to be investigated to

5 establish whether it was a real cause for concern or

6 simply, as it turned out, a hoax, or as described in the

7 evidence of some witnesses, a come-on, i.e. an attempt to

8 provoke the security forces to come out and there to be

9 greeted with some form of attack, barrage of missiles,

10 whatever.

11 Can we now look at the next stage, please. This

12 shows the first of the helicopter flights. We have

13 tried to show its path round the local area, centred on

14 the Kilwilkie Estate, which we will see emerges in the

15 map in a moment. And you will see the timings for this

16 helicopter, which is the Gazelle 4, as we call it. The

17 first flight beginning at about 6 o'clock in the evening

18 and the next at, I think, 25 past seven. The next

19 animation, please.

20 Right, there is the first of the four areas

21 I mentioned, which is the suggestion by some witnesses,

22 in particular members of the same family, three of whom,

23 that there was a vehicle checkpoint at that point on

24 that road, which appears to be something of a mystery.

25 The next one, please. Here is the location of the

 

 

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1 balaclava incident on Victoria Street there. The next

2 one, please.

3 There is the estate set out for you so you can see

4 that the helicopter flight, for example, involves

5 circling that area. The next one, please. This in

6 orange is the Gazelle 6 flight, we understand, in the

7 orange dots, which would appear comes up from the bottom

8 of the map, as you see, and appears to have taken

9 a rather tighter circle round the estate. And you will

10 see the timing of that until just before midnight on the

11 Sunday.

12 I think there may be one more. Can we have that,

13 please. Yes. There is the position of the explosion

14 itself.

15 Now, sir, it may be useful in due course to return

16 to this. So perhaps we could just keep that map on the

17 screen for everyone.

18 Sir, what I want to talk about as briefly as I can

19 is the four incidents in turn, the four areas we are

20 going to look at. The first is the Castor Bay Road

21 vehicle checkpoint and this raises the possibility that

22 there was such a checkpoint not at all far from

23 Rosemary Nelson's house on the evening before her death.

24 And the point about it is that if there was such

25 a checkpoint that night, there appears to be no record

 

 

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1 of it in either the military or police material.

2 As I have said before, the original suggestion that

3 there was such a checkpoint came from three members of

4 the McStravick family, and I think it first came to the

5 attention of the murder investigation team as a result

6 of house-to-house enquiries in the area. Each member of

7 the family, the three of them, have given evidence to us

8 and I would just like to summarise it as follows:

9 Gerard McStravick was visiting his brother and his

10 brother's wife, his sister-in-law, for the weekend.

11 They had been travelling around in the local area

12 throughout the weekend and describe seeing a vehicle

13 checkpoint in a different place, at what is known

14 locally as Mile House at various times over the weekend.

15 At about lunchtime on the Sunday, I think, the two

16 local McStravicks, as it were, attended the funeral of

17 a family friend in Lurgan, and because it was Mothering

18 Sunday -- and that is a feature in a number of the

19 witness statements because it helps people to, as it

20 were, locate the relevant day in their memories -- they

21 went to have a meal with their daughter later that

22 afternoon and came back during the evening in the same

23 car.

24 At about 8 o'clock, it seems, the driver,

25 Brendan McStravick noticed a checkpoint, as he says,

 

 

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1 almost opposite the entrance to Tannaghmore School,

2 which is the local school. They agree, the three

3 witnesses, that the car was not stopped at that

4 checkpoint but rather was waved through, having slowed

5 down on its approach.

6 Brendan McStravick recalls that there were Land

7 Rovers. He believed that the officers were military

8 rather than members of the police force. His wife was

9 not so sure. Certainly the visiting brother believed it

10 was a military vehicle checkpoint.

11 Now, they were, as they say in their evidence,

12 surprised by the location of this vehicle checkpoint.

13 It wasn't one -- this is the locals speaking -- it

14 wasn't a place at which they had been stopped before and

15 indeed Brendan McStravick describes it in his statement

16 to the Inquiry as exceptional. They are, it would

17 appear, reasonably clear about the day and the time of

18 it for the reasons I have given in relation to the

19 events of Mothering Sunday, the fact that Gerard was

20 visiting that weekend and the fact they attended that

21 day a funeral, as I have said, at lunchtime.

22 Now, in the investigation that the Inquiry has

23 conducted a couple of further witnesses, members of the

24 Patterson family, have given statements on this issue.

25 They did not give evidence or statements to the police

 

 

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1 during the murder investigation and one of their

2 statements has been signed and served and the other is

3 still awaited. They also spent the Sunday afternoon

4 visiting members of their family for the same reason,

5 because it was Mothering Sunday, and the witness,

6 Nora Patterson, who has signed her statement, recalls

7 seeing a checkpoint quite close to Rosemary Nelson's

8 home, although she is not sure of the exact distance.

9 She does say she is sure of both the day, Mothering

10 Sunday, and the time, which she puts at approximately

11 9.30 pm.

12 As I have said, as far as we can ascertain, there is

13 no record of such a checkpoint within the military or

14 the police documents and it, therefore, represents an

15 anomaly. It was an anomaly which the murder

16 investigation team themselves sought to investigate, as

17 is the case, as I have explained with all of these

18 matters, but without, as far as we can establish,

19 finally resolving the matter.

20 What they did as part of that investigation was to

21 try to make contact with those who had been using the

22 road that day; in other words, other drivers along

23 Castor Bay Road that evening. And a week later -- in

24 other words on 21st March, a week after the relevant

25 Sunday -- they stopped six motorists who fell into

 

 

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1 that category, none of whom were able to recall such

2 a vehicle checkpoint.

3 The Inquiry has obtained statements from four of

4 those motorists and they maintain their position, which

5 is that they did not see the vehicle checkpoint in that

6 location. And that is a brief summary, therefore, of

7 the material you have on that matter.

8 Turning now to the balaclava and trying to summarise

9 it, if the account given by the witnesses, witnesses

10 both to the murder investigation team and to the

11 Inquiry, if the account is accurate, then on the face of

12 it no explanation is available for the presence between

13 about 8 o'clock and 8.30 of a police Land Rover at the

14 top of Victoria Street. You will see in the sort of

15 greenie blue where that appears on the map. The

16 Land Rover at that point, with a person in dark clothing

17 and a dark ski mask climbing into the back of the

18 Land Rover, assisted by two RUC officers.

19 In addition to that specific point about the man in

20 the balaclava, during the Inquiry's investigation the

21 Inquiry has interviewed a number of witnesses who speak

22 more generally of Land Rover activity on Lake Street --

23 you see where that comes down from the Castor Bay Road

24 and turns into Lake Street, running down to the yellow

25 road -- and near the school, so on Lake Street and near

 

 

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1 the school during the evening of Sunday, the 14th.

2 This also appears on the face of it not to be

3 accounted for by the material disclosed by the police and

4 Army of movements, nor by the analysis I have mentioned

5 to you earlier conducted for the investigation team,

6 which was later reviewed by the Ayling team's own

7 analyst. So, therefore, it appears, so far at least, to

8 be unexplained.

9 So far as the Land Rover activity is concerned, as

10 I say, we have obtained some statements about that, in

11 particular from a witness called Joseph O'Connor. His

12 girlfriend's statement -- now his wife, I think -- is

13 still awaited, but Mr O'Connor's statement to the

14 Inquiry suggests that he was returning home from

15 a concert on Sunday night, the 14th, with

16 Christine Barry, who is now his wife. As they were

17 driving home, they turned into Lake Street, the street

18 I mentioned earlier, and he says that he saw a dark

19 police Land Rover with people getting into the back of

20 it, and he made comment about it to Christine Barry,

21 namely that it seemed strange because the men were in

22 what he thought to be dark combat gear with what looked

23 like ski masks.

24 Now, when the incident was investigated by the

25 murder investigation team and an attempt was made to

 

 

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1 identify those Land Rovers from the J2 mobile support

2 unit that might have been involved, nothing matched, as

3 it were; nothing matched that evidence. In other words,

4 there was on the face of it no reason for there to be

5 such Land Rover presence in that area on the Sunday

6 evening.

7 However, the team did discover an incident the

8 previous day in which a police constable dressed in full

9 riot gear had got out of a Land Rover at this point,

10 i.e. at the junction of Lake Street and Victoria Street,

11 had taken his helmet off briefly before replacing it and

12 getting back into the vehicle. And that, on the face of

13 it, might match the description given by the witness,

14 Joseph O'Connor. And in a later statement, he, Joseph

15 O'Connor, made to the police, he doubted whether he

16 could be certain that the night on which he had made the

17 observation was Sunday, as opposed to Saturday.

18 However, in his first interview on this matter it is

19 notable that he told the police that he and his

20 girlfriend were on their way back from a Kula Shaker pop

21 concert in Belfast having won the tickets in a radio

22 competition, and the MIT discovered through their

23 enquiries that the concert had indeed taken place on one

24 night only, namely the Sunday; not the Saturday. So

25 that remains as something of an oddity.

 

 

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1 There is also a certain amount of evidence about

2 Land Rover activity more generally, and we will hear

3 some of that in due course, not concerned specifically

4 with the balaclava incident but with the presence of a

5 number of Land Rovers in the Lake Street area on the

6 Sunday evening.

7 Now, sir, turning briskly on to the question of the

8 helicopters, it is a bold man indeed who attempts

9 a brief summary of the helicopter issue. It is an issue

10 that took up an enormous amount of time, energy and

11 effort on the part of the murder investigation team over

12 what turned out to be a number of years, with, in the

13 end, no relevant conclusion, no lead, no further line to

14 investigate so far as the murder investigation team were

15 concerned.

16 The Inquiry has had the benefit of all of that

17 material and of the many witness statements obtained by

18 members of the security forces in relation to those

19 issues and has had the task of trying to pick its way

20 through that material in order to ascertain what, if any

21 of it, is of importance. That is how we end up with

22 a concentration on these two particular helicopters and

23 their flights.

24 Now, sir, as is, I am sure, well-known, at this

25 point in Northern Ireland, in March 1999, helicopters

 

 

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1 played a significant role in the security forces' work.

2 They were used regularly, as the witnesses tell us,

3 whether for transporting individuals, for providing top

4 cover, as it is put, for checkpoints or for filming

5 riots, disturbances or other events in which there was

6 a security force interest.

7 Many of the witnesses at the time and many of those

8 who have given statements to the Inquiry observe that

9 over that weekend there was an increase in helicopter

10 activity throughout the weekend before the murder. As

11 a result of that, the investigation team looked at the

12 whole question of helicopter activity and whether it had

13 been heightened and, if so, whether that was of

14 significance.

15 They made enquiries initially of the RAF, the Army

16 Air Corps, air traffic control and they also, as I have

17 said already, used their analyst to amass the material

18 and try to highlight the main themes and to put it into

19 some form of cogent shape.

20 Their conclusion, with the assistance of the

21 analyst, was that all the flights which took place were

22 routine and were consistent with ongoing operations.

23 Now, as I have said, in the Inquiry's approach to

24 the matter, focus has come on just two of the

25 helicopters and the flights, which are set out on the

 

 

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1 map.

2 The issues which emerge, you may think, are as

3 follows. First, the reasons for the second of two

4 flight paths of the Gazelle 6 helicopter on the night of

5 Sunday, 14th March, into the Lurgan area, and the

6 belated recollection of this flight by its crew. So

7 that is the orange flight. Secondly, the loss of a

8 video tape recording from Gazelle 4 taken on the night

9 of Sunday, 14th March. And finally, third, the presence

10 of a liaison officer from the 3 Royal Irish Regiment,

11 who is a ciphered witness, A645, on both of these

12 helicopters.

13 Now, in both cases the helicopters were flying near

14 or around Rosemary Nelson's house. So the suggestion

15 might be that there was in some way a connection here

16 between their presence and the events which eventually

17 took place, or, of course, that the evidence recorded in

18 their film and in particular the tape I have mentioned

19 to you has disappeared and that that is a matter in

20 itself that needs to be investigated, not least with the

21 question of obstruction, which I mentioned yesterday in

22 mind.

23 During that weekend of 13th and 14th, there had been

24 a number of incidents of public disorder in this area

25 and in particular on this Kilwilkie Estate, regarded in

 

 

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1 the evidence, as you will see, as being a staunchly

2 Nationalist or Republican area.

3 Now, a number of them were viewed as come-on

4 incidents, the expression I used before, i.e. where the

5 hope of those concerned was to lure the police, the Army

6 into such areas with hoax devices, and there were three

7 such incidents, one of which we record here at the

8 bottom of the map, over the weekend.

9 As the security forces would not respond to that

10 invitation in general, and would not enter the area,

11 helicopters were used to observe from above.

12 Now, sir, with that introduction, I am now going to

13 plunge into the issues and the evidence. First of all,

14 in the first case of Gazelle 4 -- that is the brown and

15 earlier flights on the right-hand side of the map -- as

16 I have said, there was on board the Royal Irish Regiment

17 liaison officer, A645; also on board a flight commander

18 and a pilot, A657 and A659. The liaison officer was

19 there to provide local knowledge and to direct the pilot

20 towards certain areas of interest.

21 This helicopter was tasked -- that is the expression

22 used in a lot of this material -- at about 5 o'clock on

23 the Sunday to proceed to Mahon Road in Portadown to

24 collect the liaison officer and then to proceed to the

25 Kilwilkie Estate.

 

 

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1 It appears to have arrived over Lurgan just after

2 6 o'clock, at 6.07, and the commander of the helicopter

3 proceeded to video record the incidents of public

4 disorder that I have mentioned. At about 6.50, it left

5 the area to refuel at Aldergrove before returning to its

6 task at about 7.20, possibly 7.25.

7 So that is the reason we have in the box on the

8 right for two flights. That flight ended at about eight

9 when the helicopter left to drop off the liaison officer

10 at Mahon Road before itself returning to its base at

11 Bessbrook at about 20 past eight.

12 Now, the significance of this flight on the face of

13 it lies, as I have said, with the fact that the video

14 cassette from the helicopter which had recorded the

15 activity on the ground was never recovered or was

16 recorded over. And again, very extensive enquiries were

17 made by the murder investigation team into its

18 whereabouts and its fate, but to no avail.

19 So that is the beginning and the end, as it were, of

20 that issue although it took quite a long time for those

21 issues to be distilled as a result of the way the

22 statements emerged from the respective individuals.

23 Now, the second helicopter, Gazelle 6, again has

24 a similar crew structure with a commander,

25 Sergeant Haynes and a pilot, Corporal Waldron, and they

 

 

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1 have both given statements to the Inquiry. It appears

2 that it -- that is Gazelle 6 -- made two flights on the

3 Sunday: the first to provide TOC cover, i.e. to cover

4 a vehicle or to give support to troops out on patrol --

5 I think this was in the Dungannon area -- and that

6 started earlier in the evening at about 7.25. But on

7 this first flight, it didn't pick up any third person;

8 in other words, the liaison officer. So you may well

9 think that that flight does not directly concern us.

10 However, there was a second flight which has taken

11 on a somewhat greater significance, and it is the one in

12 orange on our map. On board this time was the same

13 liaison officer, A645.

14 We can see the flight path that took place between

15 11.25 and ten to 12 that night. Again, the helicopter

16 began its flight, collected the liaison officer from

17 Portadown before proceeding to Lurgan. And again,

18 having dropped him off on the way back, they returned to

19 Aldergrove.

20 Why, then, is the flight of interest? First,

21 details of the flight appear to be lacking. There were

22 no entries in the 3 Royal Irish Regiment watchkeeper log

23 or the 3 Infantry Brigade log, and during the

24 investigation various explanations were put forward to

25 police officers who interviewed relevant Army personnel.

 

 

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1 Originally, the watchkeeper that night told the police

2 that the failure to record the second flight in the log

3 was an oversight, but he later said that it was not an

4 oversight but rather that he considered this flight to

5 be a continuation of the tasking of Gazelle 4. So that

6 is the first reason why the story emerged gradually.

7 Secondly, there is a lack of corroborating task

8 sheets which were simply disposed of, it would seem.

9 However, it may well be that this factor of itself needs

10 to be seen against the background of the number of

11 unspecified flights undertaken by the Army Air Corps

12 between 12th and 15th March, which I think totalled 12

13 in all. So in other words, this was not an unique and

14 unspecified flight during that period; it was one of

15 a substantially larger number.

16 However, in addition, it is right to say that during

17 the course of the interviewing and investigation, the

18 crew of this helicopter only belatedly confirmed that

19 the flight had taken place. And when I say only

20 belatedly, some of these witnesses, witnesses to the

21 murder investigation, gave as many as five statements.

22 In addition, it appears that the commander of the

23 flight, the commander of the helicopter, had made

24 a request to air traffic control to operate in the

25 Lurgan area and it is not immediately apparent why that

 

 

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1 happened.

2 Now, turning back to the issue of the lost video

3 tape, and that takes us back to Gazelle 4 -- again, an

4 issue investigated by the murder investigation team, and

5 the officer who was particularly concerned with this has

6 given a statement to the Inquiry. It was his job to

7 liaise with the military at Mahon Road concerning any

8 helicopter with video recording facilities over Lurgan

9 that weekend. And he was told that there were no

10 operational flights which had helicopters with recording

11 facilities over the Lurgan area during the relevant

12 period.

13 That, I think, was on 15th March. However, the next

14 morning he was contacted and told that an additional

15 helicopter had been tasked because of the public order

16 and potential terrorist incidents on the Sunday. It had

17 video capability and the Army were endeavouring to

18 establish whether footage had been taken.

19 He was later told that no such video in fact existed

20 and he recorded this course of events in his own

21 statement created during the murder investigation, which

22 is exhibited to his Inquiry statement.

23 Now, there is in addition conflict in the material,

24 in the evidence we have obtained as to what the fate of

25 this video was. There appears to have been no set

 

 

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1 policy for the retention of tapes from these recordings

2 undertaken by helicopters, and it also may well be the

3 case that by the time the murder investigation team were

4 alerted to this, in fact it was too late because the

5 video tape had already been reused and recorded over.

6 But there is a good deal of confusion about the

7 dates of recordings. What emerges at the end of it is

8 that if anything relevant was recorded on that tape, the

9 opportunity was lost, for whatever reason, to see

10 whatever had been filmed.

11 Now, sir, the final area on security force activity

12 concerns, as I have said, some further allegations made

13 originally in statements given to the Pat Finucane

14 Centre but not given to the murder investigation team,

15 and this is a topic I will return to in a moment.

16 One of the difficulties faced by the team was that

17 there was not full cooperation with them and with their

18 work, and a number of witnesses or potential witnesses

19 would not speak to or give statements to the murder

20 investigation team, preferring to lodge their statements

21 with, in this case, the Pat Finucane Centre on the

22 condition, it would appear, that they would not be shown

23 to the police but only to an Inquiry approved of by the

24 Nelson family.

25 Now, that has had the effect in this case of

 

 

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1 allowing the Inquiry to see material which, despite all

2 their efforts, the murder investigation team at the time

3 were not able to see.

4 We know, and I have explained already, that they did

5 everything they could. They took, for example, a report

6 prepared by the Centre and their analyst looked at it.

7 It contained some quotes, quotations from the

8 statements, but his exercise was necessarily limited

9 because he didn't have access either to the full

10 statements or indeed to the relevant identities of the

11 witnesses, and they couldn't, therefore, be further

12 questioned.

13 So far as the full statements are concerned, the

14 view which the Inquiry and in particular the Ayling team

15 have taken using their own analysts to look at this

16 material, is that in fact when one considers the full

17 statements, they don't actually take the matter any

18 further; in other words, that the work done on the

19 limited information by the murder investigation team's

20 analyst takes it as far as it can go.

21 However, there are one or two further matters raised

22 by witnesses in this category who have agreed

23 subsequently to give a statement to the Inquiry, and

24 they raise other more general allegations about whether

25 it be helicopter, whether it be Land Rover activity,

 

 

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1 which we will be able to look at in due course.

2 So, sir, so far as security force activity is

3 concerned, that is all I propose to say at this stage.

4 Turning then to the scene of the murder, as we

5 describe it, what I am talking about when I refer to the

6 scene in this context is not the question of how the

7 scene was handled by the police, by the murder

8 investigation team -- that is a matter dealt with in the

9 Ayling report, which I will turn to in a minute -- the

10 scene from this point of view is concerned with

11 particular allegations or suggestions made by witnesses

12 about, in particular, behaviour at the scene. And

13 a large number of statements of that kind, where

14 witnesses -- perhaps witnesses dealing with other

15 matters who were present on that day -- have points to

16 make about what they say they witnessed at the scene.

17 It is possible, therefore, to look at that evidence

18 as falling into three categories: The first, those who

19 were present in the aftermath of the explosion who give

20 relevant evidence as to what was going on at the scene

21 but who make no comment, negative or positive, on the

22 behaviour of those members of the security forces who

23 were present; secondly, those who were present at the

24 scene in the same way and who make positive comment on

25 the way in which the security forces conducted

 

 

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1 themselves at the scene, and there is evidence of that

2 kind; and then thirdly, evidence from those who make

3 allegations of poor and inappropriate behaviour by

4 certain members of the security forces at the scene.

5 Now, it is important, I think, before looking at

6 some of that in a little more detail, to consider where

7 it might fit in to the work of the Inquiry; in other

8 words, rather more simply, what its relevance might be.

9 You may think that some of the incidents and

10 comments described, if correct, if true, go to this

11 question of how Rosemary Nelson was viewed; what -- to

12 use issue 1 as my guide -- what impact her work had had

13 on relations with, in this case, members of the security

14 forces, and whether there is any connection between

15 those events which by definition had taken place before

16 the murder and the subsequent behaviour; whether, in

17 short, it reveals something to you about attitudes.

18 Because given what had happened at the scene, some of

19 these remarks, some of this behaviour, if it did indeed

20 occur, was, you may think, at the very least very

21 unfortunate.

22 Now, there are four aspects to this: inappropriate

23 and insensitive behaviour, as I have said. Two specific

24 incidents, one raised by a ciphered client, C150, in

25 which a specific soldier at the scene was said to have

 

 

22

 

1 made offensive comment; thirdly, an incident involving

2 a ciphered police officer, P614, who said that he

3 witnessed another officer at least potentially

4 contaminating the scene, the crime scene; and fourth,

5 what is said to have been a failure to report potential

6 suspects present at the scene.

7 Now, sir, before looking at the allegations in

8 a little more detail, can I ask, please, that we have

9 a look at some photographs. These are the scene

10 photographs. Can we look, first, at number 1.

11 (displayed).

12 Now, sir, this is the view from Castor Bay Road

13 side. The car, as you can see, had come to rest -- and

14 we will see this in more detail in a moment -- at a wall

15 on the other side of the road from the junction of

16 Castor Bay Road and Ashford Grange. You can see already

17 in this photograph not only the impact on the car but

18 also the substantial amount of debris which, at this

19 stage at any rate, remained on the road.

20 So can we look at photo 4, please. (displayed) This

21 is taken from the other side, I think, and it simply

22 gives us a closer view of the damage and the debris, and

23 you can probably make out the road sign in the middle of

24 the photograph, which is Ashford Grange. So that is the

25 junction there.

 

 

23

 

1 Photo 6, please. This is simply a close-up. Bear

2 in mind that in order to remove Rosemary Nelson from the

3 scene, the post, as I said to you on the very first day

4 of this opening, had to be cut away. You will see there

5 the massive impact on the driver's side.

6 So photo 15, please. There is where the car came to

7 rest against the wall.

8 Now, photo 16 shows the view down Ashford Grange and

9 you can see the car in its place there. Photo 17 brings

10 us closer still to the house, and then finally photo 25

11 is a little more close-up of the extent of the debris.

12 Now, just turning to the various issues which arise

13 in relation to the scene, the first was general

14 behaviour, inappropriate, insensitive behaviour by

15 members of the security forces at the scene because, of

16 course, what one can't see here is that in the immediate

17 aftermath there were people fairly close by. There was

18 a substantial police and Army presence. There were

19 obviously ambulance service and other medical personnel,

20 and very quickly, it seems, overall and in a reasonably

21 near vicinity, a substantial number of individuals

22 gathered.

23 Now, the first witness who gives evidence about

24 these matters is Brian Loughran. We have heard

25 reference to him before as one of the complainant

 

 

24

 

1 clients. He gave a statement to the Finucane Centre but

2 has given a statement to the Inquiry. He says he heard

3 Royal Irish Regiment soldiers shouting "Dozy Rosie" on

4 the evening of the Sunday, and he says that his

5 recollection of this in his statement -- to the Inquiry,

6 that is -- is vague although he confirms that

7 recollection.

8 [A witness], says he arrived shortly after the

9 explosion and tried to help by telephoning a local

10 doctor to attend the scene. And he is one of a number

11 of witnesses who assists with a picture of what it was

12 like here at this junction in the immediate aftermath of

13 the explosion. But he also in his statement to the

14 Pat Finucane Centre told them that he saw soldiers

15 laughing and joking in the vicinity of the explosion,

16 and he has confirmed that in his statement to the

17 Inquiry. He says, for example, that he saw soldiers in

18 Land Rovers driving up the North Circular Road further

19 out in Lurgan, laughing and joking.

20 Another witness, Bernadette McDonald, told the

21 Finucane Centre that she recalled a soldier laughing

22 when she asked him about getting "the bastards who had

23 done that", and she says in her statement to the Inquiry

24 that other soldiers at the road block all seemed happy

25 about what had happened.

 

 

25

 

1 Mr McCombe told the Pat Finucane Centre that he was

2 disgusted at the rudeness of some RUC personnel at the

3 scene and heard what he thought were some soldiers,

4 Scottish solders, he says, laughing, and confirms that

5 in his statement to the Inquiry.

6 So far as Ruby McConville is concerned, in her

7 statement to the Inquiry, she says that she saw two Land

8 Rovers drive away from the scene passing her on the

9 corner of Lake Street and Ashgrove Park and heard one

10 soldier shout to another in a second vehicle, "we have

11 got her now, we have got her now". That is an example

12 of a witness who gives, you may think, a fuller or more

13 balanced account of the matter, because she also says --

14 because she was present at the scene -- that the

15 behaviour at the cordon which was put up round the scene

16 of the explosion was appropriate. So she focuses on

17 a particular incident.

18 Turning now to the second matter, the allegations

19 made by the ciphered client, he made a statement to the

20 murder investigation team on 28th March 2000 and alleged

21 in it that the soldier, who he claims had threatened him

22 and Rosemary Nelson on a previous occasion, shouted to

23 him, "go and cut her fucking out of it", from the back

24 of a passing Land Rover. He was with a crowd that had

25 gathered at the scene, but had been pushed back up the

 

 

26

 

1 hill towards the school, he thinks at about half past

2 one on 15th March. His wife was with him. They were

3 standing on the school side of the footpath in

4 Lake Street.

5 They then got into their car and drove home, and he

6 says that on the way they were stopped at an Army

7 checkpoint at the junction of Lake Street and the North

8 Circular Road. And in his statement to the Inquiry, he

9 says he is not sure that this was an official

10 checkpoint. He then says that when a solder looked

11 under his car, the soldier remarked, "Jesus, the one we

12 put underneath that car has fell off", and all the other

13 soldiers started laughing.

14 He then explains that he returned to the scene

15 because he realised that his children were still there

16 and he was concerned, and as he was walking through the

17 estate, he states that three Land Rovers went past and

18 a soldier in the second vehicle threw a doll out -- the

19 doll had no legs -- and told him to either, "go and

20 scrape her off the street", or "go and cut her out" or

21 words to that effect. He says he couldn't be sure

22 whether the two incidents involved the same soldiers.

23 Now, sir, it is right to point out that there are

24 some significant differences between the account given

25 by this witness to the police in 2000, which I have

 

 

27

 

1 mentioned, and the account which he has given to the

2 Inquiry, and that will of course be something to be

3 explored with him in his evidence.

4 He gives an explanation, because the matter was put

5 to him. He says that the reason for the difference

6 between his account to the police and his account to the

7 Inquiry is because the incidents were recorded by the

8 police in the wrong order.

9 His wife has given the Inquiry a statement as well,

10 and she speaks of the incident involving a doll being

11 thrown towards them from a Land Rover, and she mentioned

12 another incident on Lake Street when a soldier looked

13 under their car and all of the soldiers laughed. She

14 can't recall, however, what was said or when and in what

15 order the incidents occurred.

16 Now, none of the soldiers who have been interviewed

17 accept making any of these comments or being involved in

18 any incidents of this or similar kind.

19 The third incident, which is a very different

20 matter, also investigated by the murder investigation

21 team involves, if you remember, a particular police

22 officer who was on the scene on the day of the murder.

23 His cipher is P614. He worked in the J2 mobile support

24 unit and he was one of the officers from that unit who

25 attended the scene shortly after the explosion. He has

 

 

28

 

1 given a statement to the Inquiry.

2 By that stage he had been a police officer for about

3 three years. His role at the scene was to assist in

4 shielding Rosemary Nelson's car as the paramedics and

5 the doctors did their work. He was, therefore,

6 positioned well within the inner cordon which had been

7 established; the outer cordon was some 20 metres further

8 away.

9 He made a statement to the police in May which, as

10 of today, he relies on as an accurate account of events.

11 However, there was one particular and you may think

12 important incident which he didn't mention in his

13 statement given in May, and indeed which didn't emerge

14 until five years later, on, I think, 7th May 2004.

15 On that date, he was discussing this murder and his

16 experience at the murder scene with other police

17 officers in a pub here in Belfast and mentioned to them,

18 apparently for the first time, that during his time at

19 the scene he witnessed a sergeant who appeared to have

20 been contaminating the scene of the crime.

21 Now, he says in his statement to the Inquiry that

22 there was a lot of debris which looked mainly like

23 gravel and broken glass or pieces of mechanics. People

24 had been previously walking through it, but that was in

25 an attempt to save Mrs Nelson's life, and we will hear

 

 

29

 

1 more about this in due course. Inevitably, and rightly,

2 the priority was with the medical work that needed to be

3 done rather than with the perfect preservation of

4 matters at the scene with an eye to the forensic

5 analysis of it.

6 He gives more detail as to the debris and says that,

7 so far as relevant, the part in question was looking

8 either like a magnet or a battery. It was something

9 more substantial than the surrounding battery. But what

10 he noticed in relation to that was an officer stand on

11 or kick a black metal object which, as I say, he

12 describes as looking either like a magnet battery. He

13 says that he challenged the officer because he was

14 concerned about scene contamination, and in response the

15 sergeant said:

16 "She is better off dead."

17 And continued walking. Now, in his statement to the

18 Inquiry, this police officer says that he didn't know

19 what the sergeant's intentions were in kicking the

20 debris, and comments that he can see that the comment,

21 the comment made by the sergeant, could be interpreted

22 as being either charitable or, on the other hand,

23 sinister.

24 Anyway, returning to how this emerged some five

25 years later, when he made these remarks he was

 

 

30

 

1 challenged by the officers with whom he was drinking.

2 They warned him that the failure to report such an

3 incident could affect his promotion. He contacted the

4 murder investigation team I think that night and gave

5 a statement the following day, 8th May 2004, and

6 explained why he didn't report it at the time. It did

7 not seem significant in the light of Mrs Nelson's death

8 and the riot. He goes on to make these remarks:

9 "This was a graphic terrorist atrocity. I didn't

10 register the significance of the sergeant walking

11 through. I was also scared about the possibility of a

12 riot and a backlash in the Province. I thought the

13 police would be targeted. So I was on edge for the rest

14 of the day."

15 He later says that he didn't think about what had

16 happened, this part of his experience at the scene,

17 until the time he began to speak to his colleagues about

18 it some five years later:

19 "Having recalled this incident for the first time,

20 I felt physically sick. I immediately left the bar and

21 rang Lurgan enquiry office from my mobile phone. I was

22 unable to sleep.

23 "With three years' service at the time, this was my

24 first experience of a murder scene where the injured

25 party was still alive when I arrived. At the time

 

 

31

 

1 I believed I could cope with witnessing such a terrible

2 incident. My way of coping with it was to put it at the

3 back of my mind and never to think or talk about it."

4 Now, the matter was investigated by the murder

5 investigation team, for obvious reasons. It proceeded

6 no further so far as they were concerned, but it was

7 referred to what was then the PSNI disciplinary

8 department who forwarded it to the Police Ombudsman.

9 Disciplinary proceedings resulted and they were

10 contested. I think the allegation was neglect of duty.

11 The allegation was made out and the officer was

12 cautioned.

13 The question which obviously arose was as to the

14 identity of the sergeant, and P614 was unable to

15 identify him. The murder investigation team identified

16 all four uniformed sergeants present at the scene. They

17 interviewed each of them. They were all eliminated from

18 this line of enquiry. The Ombudsman subsequently

19 identified a fifth sergeant present, but unfortunately

20 this officer has retired, moved to Canada and in that

21 sense, and so also for the Inquiry, the trail has gone

22 cold.

23 Sir, before moving to look at the final matter here,

24 and quite apart from the business of weighing up this

25 incident, the way in which it emerged, what the police

 

 

32

 

1 officer has subsequently recalled about it so many years

2 later, may I emphasise that one of the striking things

3 about this episode is it is an important reminder of

4 what the atmosphere must have been like at the scene,

5 not only for local residents, for neighbours, for

6 friends, for members of Rosemary Nelson's family, for

7 those who knew her, but also for those charged with not

8 only the investigation but with maintaining public

9 order, with dealing with her medical care.

10 It is quite apparent that there was a mood of high

11 tension at the scene and that, I would suggest, must be

12 borne in mind when one considers how it was managed. Of

13 course, one has expectations of high professionalism of

14 all of those involved in such events, but the evidence,

15 the extract from which I have quoted to you of this

16 particular police officer, is a salutary reminder, you

17 may think, that those are in the end human beings and

18 they are not immune to feelings of shock and worse when

19 taking part in such an incident.

20 As we will see from the evidence, the business of

21 dealing with the scene forensically, of preserving the

22 evidence, very shortly gave way to another but also

23 a high priority, which was trying to maintain public

24 order, not just at the scene but in the local area,

25 because the murder sparked off, as we have heard,

 

 

33

 

1 a protest but also violence within the day.

2 Sir, the fourth area in relation to the scene is

3 a point which I have mentioned concerning whether the

4 reporting of what is referred to tactfully in some of

5 the evidence as persons of interest by members of the

6 security forces was, whether deliberately or not,

7 whether the procedures were not followed. This, I am

8 afraid, is another area where there is a good deal of

9 confusion and conflict between the accounts of those

10 present.

11 What I would like to do is to look in a small amount

12 of detail at one area in particular: the allegation that

13 a request to radio in a sighting, a sighting of a person

14 or persons falling into this category, was refused. And

15 clearly the suggestion that would be made here is that

16 there was a deliberate attempt to allow persons of

17 interest of this kind to pass through or by or in the

18 vicinity of the murder scene without their presence

19 being recorded in the usual way.

20 Now, we are concerned, therefore, with the

21 3 Royal Irish Regiment and with those deployed at the

22 scene and in particular with groups under two call

23 signs, L22B and L21B.

24 In L22B, that group of soldiers, there was also

25 a military policeman, Christopher Jopling, whose role at

 

 

34

 

1 the time was often to work as what is called a spotter

2 with infantry units, and it was his job to build up

3 knowledge of local people, particularly, as I have said,

4 persons of interest. When he made such a sighting, he

5 would inform his team commander who would radio the

6 sighting in to the operations room at Portadown. As

7 well as being reported in this way by radio, these

8 sightings were recorded on what was known as a Charlie 1

9 Form, which would be attached to the patrol report and

10 then handed in at the end of the patrol. He says

11 occasionally he also made notes in his notebook and has

12 exhibited it to his statement given to the Inquiry.

13 This soldier told the police, the murder

14 investigation team, on 19th June 2000 about the sighting

15 of two such persons at the scene and confirms this in

16 his statement to the Inquiry. He recalls them, he says,

17 because they were believed to be Loyalist and this was,

18 as I have said, a staunchly Nationalist or Republican

19 area.

20 Having noted them, he says he spoke to his team

21 commander in order to get the sighting recorded and was

22 told in effect that there was no need to pass that

23 through. He explains that as he didn't have a radio, he

24 was not in a position to send the sightings himself that

25 way. He says that he didn't want to force the issue at

 

 

35

 

1 the time, as he planned to write a list of all the

2 sightings himself upon his return, and indeed one can

3 see that -- I am not going to take you to it now -- in

4 his notebook.

5 Those names, the relevant names, have been redacted

6 in accordance with the Inquiry's policy, but I can

7 indicate that they do indeed relate to the two relevant

8 persons of interest.

9 So the situation we appear to have, therefore, is

10 that the commander was well aware of who these persons

11 were, but for whatever reason, either didn't want to or

12 decided not to pass the information on. At this point,

13 however, the issue becomes confused because there is

14 a difference, variance, dispute about the identity of

15 the relevant team commander. And in Mr Jopling's

16 statement to the Inquiry, he says very fairly, you may

17 think, that he can't be sure whether it was one of two

18 soldiers -- both of whom have ciphers -- A620, who was

19 a corporal, and A181, who is a lance corporal.

20 Now, because he had recorded the two persons of

21 interest in his own list, he was -- this is

22 Mr Jopling -- contacted by the intelligence cell and

23 challenged on why these sightings had not been reported

24 over the radio at the time, and gave his account of

25 events.

 

 

36

 

1 So, sir, although it has not been possible to

2 identify the team commander with certainty on

3 Mr Jopling's own account, the issues then are: did what

4 he described take place; who was the person who refused

5 to follow the matter up in accordance with procedure;

6 and of course, the relevance of any of that material,

7 even if established, to the issues you are considering.

8 We have a statement from both of the possible team

9 commanders, and suffice it to say that the first, A620,

10 has no recollection of any such event or any such

11 refusal on his part. He says that he would not always

12 have used the radio to pass through sightings because it

13 would often be very busy during an incident and there

14 would be no sense in blocking it up if there was nothing

15 more urgent than a sighting to report.

16 But then he recalls this, which picks up the point

17 I have just made to you that at the time the cordon was

18 being stoned and petrol bombed. And he sets that

19 important, you may think, recollection -- puts it into

20 the picture as a possible explanation if sightings were

21 not passed down the line by radio or by being noted;

22 they had other more, obviously, pressing matters to deal

23 with, namely an attempt to maintain law and order in

24 a very, very volatile and difficult environment.

25 He also says that at the end of the day he was not

 

 

37

 

1 handed any sightings, any note, nor told of any. And he

2 also says that as far as he can recall, whilst he was at

3 the scene, he did not see either of the persons of

4 interest mentioned by Mr Jopling.

5 Now, the alternative team commander, if I can put it

6 that way, A181, says that he told the spotter, who he

7 names as Mr Jopling, to record all of the sightings and

8 denies that any refusal on his part took place that day.

9 So, sir, that is a very brief summary of the

10 discrepancies between these accounts. The Inquiry has

11 also for completeness, I should say, interviewed members

12 of the other patrol under the other call sign, L21B, but

13 suffice it to say that that doesn't shed light on the

14 particular incident involving Mr Jopling.

15 So, sir, those are the limited matters on scene and

16 security force activity that we will be focusing on and

17 about which we will be hearing evidence in due course.

18 THE CHAIRMAN: Would that be a convenient moment?

19 MR PHILLIPS: Yes, sir, it would.

20 (11.28 am)

21 (Short break)

22 (11.43 am)

23 THE CHAIRMAN: Yes, Mr Phillips.

24 MR PHILLIPS: So, sir, the topic of due diligence is,

25 everybody will be relieved to hear, the last topic I am

 

 

38

 

1 going to deal with in this opening and I would like to

2 start, please, right at the beginning by getting up to

3 the screen the Terms of Reference (displayed).

4 Thank you. As I pointed out right at the outset,

5 the part of this we are concerned with is very short:

6 whether the investigation of her death was carried out

7 with due diligences. That is the beginning and the end

8 of it. And as, I have also pointed out, it requires

9 from you a qualitative assessment against that standard

10 of due diligence. Although the words are few in number,

11 the draftsman of these Terms of Reference thereby

12 created a very substantial topic for the Inquiry's

13 consideration; substantial because of the length, the

14 complexity and the duration of the investigation.

15 These features of it were all formidable. And the

16 amount of work done during the investigation and the

17 documentation and the other material generated is huge.

18 So in those few words were contained the seeds of

19 a massive task for the Inquiry, closely related to but

20 in many ways distinct from other topics which you have

21 to consider. Distinctive first, as I have said, because

22 of the requirement for a qualitative assessment.

23 It is not simply a question of looking at issues

24 mostly of fact. And for that reason, it has had its own

25 distinct process, which again is not the same, exactly

 

 

39

 

1 the same, as that which the Inquiry has followed in

2 relation to the other areas of its work; the most

3 obvious feature being the engagement by the Inquiry of

4 its own expert, Mr Robert Ayling, who, with his team of

5 former police officers and others, has produced the

6 Ayling Report to the Inquiry on the question of due

7 diligence.

8 But there are other features too. As I have said

9 already, the Inquiry has in this case permitted the four

10 senior officers on the murder investigation to produce

11 their own witness statements relating to due diligence

12 issues; those issues, you may think, being principally

13 matters of submission rather than evidence, but it

14 having been made clear at a relatively early stage that

15 those submissions would be sought to be supported by

16 evidence that permission was given by the Inquiry.

17 So far as the facts of the investigation are

18 concerned, again, there was a distinctive, or there is

19 a distinctive element in this part of the case, in that

20 agreement was sought and reached concerning the outline

21 of the course of the investigation, thereby avoiding the

22 need for a lengthy and laborious process where

23 essentially you would have to find the facts of the

24 investigation and what happened; in other words, over

25 the many years of police work.

 

 

40

 

1 Taking all of those points in order and, as I said

2 to you right at the outset, as a result of a great deal

3 of cooperation between the Inquiry and those

4 representing the senior officers in the investigation,

5 we were able at the outset of this hearing to deliver to

6 the Full Participants first a redacted summary of the

7 murder investigation, which says on its front page that

8 it is intended to be an uncontentious outline of the

9 course of the investigation. It is not intended as

10 a submission by or evidence on behalf of Mr Port or any

11 member of the murder investigation team. And so far as

12 that document is concerned, there are some redactions

13 still in it but a substantial proportion of that

14 document remains, and I will refer you to passages of it

15 in due course.

16 Secondly, the report, as I explained to you, has

17 been provisionally redacted -- the same applies to all

18 of the redactions I am going to mention -- provisionally

19 redacted so as to allow its distribution. The

20 advantage, of course, is that that enables the Full

21 Participants to consider some two files' worth of

22 material and it allows me to open this issue to you at

23 this stage.

24 But there is a substantial caveat which I must enter

25 immediately because, so far as the process of

 

 

41

 

1 provisional redaction is concerned, the effect has been

2 to remove entirely some of the chapters of the report,

3 in particular suspects, chapter 9, and management,

4 chapter 14, and to remove certain parts of other

5 chapters and I think also the whole of chapter 12.

6 Now, that means that although in terms of pages and

7 percentages the majority of the report is now with the

8 Full Participants and can therefore be opened by me,

9 there is no automatic correlation between the percentage

10 of pages and the relative importance of those that now

11 everybody sees. And, as I will explain, some of the

12 material which has not appeared in this report, despite

13 the efforts of both sides to deal with the redactions

14 issues, are of importance. That means in turn that

15 whatever I can say to you about the remainder of the

16 report will not give you the full flavour of the views

17 expressed by Mr Ayling in the full course of his very,

18 very substantial report.

19 Now, the third matter concerns evidence. As

20 I indicated to you, the Inquiry had agreed exceptionally

21 to allow the senior investigating officers to make

22 witness statements relating to due diligence, and as

23 I also explained, they haven't been provided as at this

24 stage, and instead what the Inquiry has received -- and

25 this is the third document, dated 9th April -- is

 

 

42

 

1 something described as "an outline of the evidence to be

2 given by ..." Then the names of the four officers:

3 Chief Constable Colin Port, Arthur Provoost, Sam Kincaid

4 and M540.

5 It says at the bottom of the front page of this

6 document:

7 "A document prepared by the lawyers representing

8 Chief Constable Port and others at the Rosemary Nelson

9 Inquiry to provide an early indication of the evidence

10 the witnesses will give in the autumn."

11 It is of course very helpful to receive these

12 47 pages of text, but as I will show you from the

13 document itself, it is what it says, as it were, on the

14 tin, namely an early indication; it is, as is apparent

15 from the text itself, by no means the full story. It

16 refers to evidence which will be given and it is, in

17 a number of respects, as I will show you, less detailed,

18 dealing with certain topics, than the summary itself,

19 which is dated, I think, January 2007.

20 The other thing about it is that it is an outline of

21 evidence. It is not an outline of the submissions no

22 doubt to be made in due course by way of answer,

23 comment, in relation to the Ayling Report. That means

24 that at present, as I stand here, what we have is the

25 outline of the evidence. What the Inquiry does not have

 

 

43

 

1 as yet is a full statement of the senior officer's

2 answer or comment upon the Ayling Report.

3 Plainly, in the interests of fairness both to

4 Mr Ayling, to the senior officers and indeed, if I may

5 say so, to yourselves, that will need to emerge in very

6 good time before the time when the relevant individuals

7 give evidence, because it will only be then that we will

8 know where the dispute lies, if there is to be

9 a dispute, and how significant areas of dispute are.

10 Because, sir, in this, as in other areas of the Inquiry,

11 it remains a matter for you, for you to determine the

12 extent to which you wish to investigate, to focus on,

13 matters raised before you in the evidence. In other

14 words, if it turns out that there are ten areas of

15 dispute but you only deem four of them to be

16 significant, to be worthy of further and detailed

17 consideration at a later stage, that is a matter that

18 needs to be addressed and considered and can only be

19 done when we understand more fully what the range of any

20 such disputes might be.

21 Now, so far as other material which is not at the

22 moment before you is concerned, there remains the part 3

23 bundle. I have mentioned it before but it is worth

24 reiterating, I think, at this stage.

25 This is the bundle of documentation cited to

 

 

44

 

1 supporting, relating to the Ayling Report, which, as

2 I explained to you, was being processed by way of work

3 by the Inquiry, followed by detailed discussion not only

4 with those who represent the senior officers, but also

5 with PSNI in particular, to assess outstanding questions

6 of redaction, for sensitive reasons, Article 2 points

7 and possible arguments based on public interest

8 immunity.

9 So those files, 30-odd files, have not been released

10 to the Full Participants: the work in relation to their

11 redaction is continuing and will obviously have to

12 continue in order to enable full consideration of the

13 report to be given because, as you will have seen in

14 working your way through it, there are constant

15 references by way of footnote to the documents cited or

16 relied upon, namely the documents relevant to the issues

17 in question, as set out by Mr Ayling in his report.

18 So, sir, those are, as it were, the limits of and

19 the caveats which need to be entered now about this

20 issue.

21 So far as the way I am going to take it is

22 concerned, it is at least for me a delightfully simple

23 question, because it involves no technology whatsoever.

24 We are looking here at hard copy documents. I hope that

25 the message was received from the Full Participants that

 

 

45

 

1 that is the way we would be dealing with it. We can't

2 rely on the screen at all because none of the documents

3 I mentioned have been loaded up. So I will make

4 reference to the report in the two files, as I have it

5 at any rate, to the summary, the uncontentious outline

6 of the investigation and to the outline of the evidence

7 which I have mentioned, and I will try to keep referring

8 to them in those ways using those terms, otherwise we

9 may all get lost.

10 So I would like to start with some general comments

11 about the nature of the report and about the way this

12 issue of due diligence should be approached. The first

13 thing to say is that when one looks at the report, it is

14 clear that the opinions expressed, when looked at

15 overall and in the main, those opinions relate to, as it

16 were, the senior management of the investigation rather

17 than the lower ranking individuals. That is the way it

18 is put. And it is from those individuals, the four of

19 them I have mentioned, that we have the outline of

20 evidence.

21 Just to take you first to look at the individuals,

22 helpfully brief CVs, effectively, have been set out in

23 this document. If you look at page 7 first of all,

24 there is a recitation there of the career of Mr Port,

25 Mr Provoost, Mr Kincaid and M540 that goes on until

 

 

46

 

1 page 11, paragraph 35.

2 Mr Kincaid was appointed the senior investigating

3 officer for the investigation on the day of the murder

4 and he undertook that role until August 2000, when he

5 was promoted to detective chief superintendent and

6 transferred to other duties.

7 M540 was appointed as his deputy on the same day,

8 the day of the murder. He took over as the senior

9 investigating officer in September on Mr Kincaid's

10 promotion and carried on in that role until May 2005,

11 when he retired.

12 Mr Port was the officer in overall command of the

13 investigation from 6th April 1999 to 31st December 2002,

14 and he is presently the Chief Constable of Avon and

15 Somerset.

16 Mr Provoost took up his duties with the

17 investigation on 12th April and acted as deputy to

18 Mr Port. In 2002, in succession to Mr Port, he became

19 the OIOC and continues in that role today. When he

20 retired from the police service he was retained by the

21 PSNI in a civilian capacity to continue to perform that

22 role. That is pages 18 to 20 of the outline.

23 Just pausing briefly at this point, there is between

24 the outline on the one hand and the summary, the earlier

25 summary, on the other, a slight difference of emphasis

 

 

47

 

1 in relation to the present state of the investigation.

2 I am not going to get into this in any detail because it

3 doesn't merit it. In the more recent document, it is

4 said firmly that the investigation is continuing. In

5 the earlier document, the impression certainly that I

6 had from it was that it was in its final stages and was

7 about to be wound up. But we understand from this later

8 document, 9th April, that in fact it is continuing and

9 actions continue to be processed, albeit by obviously

10 a much reduced team.

11 Now, these officers, taken together, present to you

12 a very substantial, very substantial number of years of

13 experience within the police service in different parts

14 of the United Kingdom; very substantial experience of

15 murder investigations both in England -- Mr Port and

16 Mr Provoost -- and in the particular environment of

17 Northern Ireland. And it is on that topic, the context

18 of policing in Northern Ireland, that I would like to

19 direct some attention next.

20 At the time this document dated 9th April was

21 prepared, of course those preparing it had not reason to

22 know what matters would be canvassed in my opening

23 submission and, therefore, they did not know that during

24 those opening submissions I would be spending a good

25 deal of time setting out for you not only the context of

 

 

48

 

1 policing in Northern Ireland, but putting it in the

2 still wider context of Northern Ireland as a whole at

3 that time, looking, as you remember, at the political

4 and security background to the events with which we are

5 concerned.

6 There is absolutely no difference in this sense

7 between the Inquiry as a whole and the senior officers

8 in the stress which has laid and the importance

9 attributed to the question of context, which in this

10 outline receives treatment beginning at paragraph 36.

11 In the outline, as also in the submissions and

12 material I showed you, focus is, you may think rightly,

13 placed not only on the years before the murder, i.e. the

14 years leading up to March 1999, but also attention is

15 focused -- again rightly, I would suggest -- on 1999

16 itself and on the subsequent years. And here the

17 Inquiry has the distinct advantage of the presence

18 within these senior officers' ranks, if I can put it

19 that way, of Mr Kincaid, whose role it was, after being

20 transferred and promoted out of the murder

21 investigation, to take on, for example, the overseeing

22 throughout the force of the Patten recommendations.

23 It was Mr Kincaid who took on the implementation of

24 other recommendations in other reports, referred to in

25 the outline, paragraph 27, namely Stevens, Blakey and

 

 

49

 

1 Crompton. And as he puts it there:

2 "Changes and innovations resulting included

3 a comprehensive dissemination policy covering all

4 situations where Intelligence Branch had to share

5 intelligence and information with CID and a change in

6 the senior management profile of Intelligence Branch.

7 By 2006 the majority were ex-CID officers."

8 Now, sir, this takes us to a point to which I will

9 return, because it focuses directly on the interaction,

10 the interface between, on the one hand, CID within the

11 RUC, as it was then at the time of the murder and

12 thereafter, and Special Branch. And that is an issue

13 commented upon in Mr Ayling's report and indeed in more

14 detail -- and I will show you the passages -- later in

15 this outline by the senior officers under the passage

16 headed, "Relationship with Special Branch". It is

17 paragraphs 138 to 143.

18 But, sir, drawing the threads together of the broad

19 policing context, the position, as I hope is absolutely

20 clear, is that those police officers charged with

21 investigating this, as other murders in Northern Ireland

22 at that time, faced difficulties which were unique to

23 Northern Ireland and which the police here had had to

24 deal with and to endure with, as I have said before,

25 courage and sacrifice for many years. And it follows

 

 

50

 

1 that any officer arriving in the Province from outside

2 the RUC, would face difficulties and situations which

3 would have tested even the most experienced murder

4 investigator whose experience lay elsewhere, perhaps in

5 other parts of the United Kingdom.

6 That, you may think, is a point not to be forgotten

7 at any stage, at any stage, of the assessment of the

8 question of due diligence, and it is, I would suggest,

9 a matter which Mr Ayling in particular bears well in

10 mind.

11 The way that is developed for us -- it is, as I say,

12 very helpful indeed -- in this outline is by having

13 established the importance of context, there is then

14 a summary effectively of first the political situation

15 in mid-Ulster, i.e. in this part of Northern Ireland, and

16 secondly some passages relating to the paramilitary

17 groups, the relevant paramilitary groups in operation in

18 that part of Northern Ireland at that time.

19 Looking at the political situation, again themes are

20 developed, in particular in paragraph 40, which from me

21 you have already heard in the opening. Just to take the

22 beginning of paragraph 40:

23 "By 1999, many of the old community certainties had

24 started to be questioned. The 1998

25 Good Friday Agreement in particular had divided

 

 

51

 

1 political opinion and created new relationships across

2 the old tribal barriers."

3 Sir, you have already heard a good deal, as I say,

4 about that in this opening.

5 Turning to the relevant paramilitary groups, I don't

6 wish to dwell on it because it is all helpfully

7 summarised there, but the outline deals with the

8 Loyalist groups first, with the UVF in mid-Ulster, and

9 then the Red Hand Defenders -- this is paragraph 47 --

10 and it says:

11 "The origin of the Red Hand Defenders can be found

12 in the various protests by Loyalists leading up to and

13 following a ruling that the 1998 Drumcree march in

14 Portadown should not go down the Garvaghy Road. The RHD

15 never had active service units in the way the UDA, the

16 UVF or LVF had. In the main, they were a loose grouping

17 of dissident Loyalists who were dissatisfied with the

18 peace process. Organisations supposed to be on

19 ceasefire found RHD's claims of responsibility a useful

20 way of masking their involvement. In other words, the

21 RHD would claim responsibility for a terrorist incident

22 and the actual perpetrators were happy to keep silent

23 and let the RHD take the blame."

24 Sir, the outline continues with a brief summary also

25 not only of the main Republican group, the Provisional

 

 

52

 

1 IRA, obviously, and reference to the question of

2 ceasefire and what it actually meant on the ground,

3 namely that there was a restriction on the attacks on

4 the security forces but no restriction on, as it were,

5 housekeeping or internal discipline -- punishment,

6 shootings, beatings, the murder of drug dealers

7 et cetera -- but it then dwells and gives us some

8 information on the other, often referred to as

9 dissident, Republican factions, the continuity

10 Irish Republican Army, the Real -- the RIRA and the

11 INLA.

12 And again, sir, we have seen reference to all of

13 these in the material I have shown you already.

14 Now, so far as their modus operandi is concerned,

15 this is an important section of the outline and I would

16 like to underline it for you by quoting. It says in

17 relation to all the groups that they operated at local

18 level in active service units:

19 "That the Provisional IRA and the UVF had the most

20 disciplined units. Over the years of the Troubles, all

21 the terrorist groups had learned from their mistakes and

22 the publicity surrounding successful prosecution cases.

23 They developed well-tried methods to obstruct police

24 investigations and prevent convictions. These included

25 being forensically aware, surveillance conscious and

 

 

53

 

1 having a planned approach to the intimidation of

2 witnesses."

3 Again, this is material we have covered and you will

4 remember, in addition it was suggested that one of the

5 well-honed and well-used tactics was that of active

6 interrogation; in other words, so as to ensure that

7 members of the organisations gave nothing away during

8 the course of their questioning by the police.

9 Now, so far as the question of the police in years

10 subsequent to 1999 is concerned -- let me just return to

11 that -- it is relevant to us of course because the

12 investigation itself continued for many years after the

13 year of the murder. I don't wish to dwell on this now,

14 save to say that the key developments in policing within

15 Northern Ireland, in relation to which obviously

16 Mr Kincaid played a substantial role, are referred to in

17 the outline and they are the ones which the Inquiry also

18 regards as significant.

19 I have mentioned the Patten Report. It came in

20 in September of that year, 1999. The Commission was at

21 work at the time of the murder. I have also mentioned

22 to you that before that, we think emerging in 1997 was

23 the fundamental review in which Mr Flanagan, as he then

24 was, played a very substantial part. All of this was

25 part of the effort being made within the police force,

 

 

54

 

1 and in the case of Patten, obviously with independent

2 outside impetus, to adjust to the changing security and

3 political situation which appeared to promise a great

4 deal but in relation to which there were no guarantees.

5 The reports I have mentioned which come out of the

6 outline, Crompton and Blakey, are matters also -- and

7 indeed the Stevens Report -- referred to in Mr Ayling's

8 text. And where they come into particular focus we will

9 pick them up again as I go through the relevant parts of

10 his report.

11 But the next and important point to bear in mind in

12 relation to assessing this investigation -- and again,

13 it is a point made fair and square in this outline -- is

14 the question of public attitude to the police. It is

15 a familiar topic, but this investigation was not taking

16 place in a calm and well-ordered society in the sense

17 that there remained in March 1999 substantial

18 proportions of the population who would not cooperate,

19 who did not trust the police and who -- and we will see

20 various examples -- did what they could to interrupt and

21 to obstruct the police as they went about their work.

22 So, for example, for a police officer launching his

23 officers on a house-to-house enquiries operation in

24 a town in England at this point in March 1999, one of

25 the things he probably wouldn't have to consider was the

 

 

55

 

1 whole question of resulting public order problems,

2 violence or at least potential violence emerging with

3 the officers doing their duty being effectively the

4 subject of attempts to provoke or intimidate, and that

5 may be a useful way of bringing this back to the

6 relevant context.

7 But as is observed here, the difficulties which the

8 police had to deal with were not confined simply to one

9 side, as it were, to the Nationalist side. And the

10 outline at paragraph 58 reminds us that relations with

11 Loyalists could be just as difficult. In our context,

12 you will remember in the Drumcree protest and violence,

13 the police found themselves under attack and at the

14 wrong end of violence from both sides, but in fact, in

15 particular in that area at that time, from Loyalists.

16 It was a Loyalist blast bomb, for example, that resulted

17 in the death of Police Constable O'Reilly.

18 Now, so far as the service internally was concerned,

19 there were particular features of the RUC, its structure

20 and the way it was organised which some at least would

21 say were the product of these tensions: the lack of

22 cooperation, the distrust which existed in parts at

23 least of the community.

24 I have said to you before -- I have referred you

25 before to comments of Her Majesty's Inspectorate

 

 

56

 

1 suggesting that the force had become too focused, too

2 concentrated on anti-terrorist activity, as opposed to

3 the other range of policing work.

4 One can quite understand why that tendency might

5 have emerged, of course, but it is a feature commented

6 upon by those who would know at the time.

7 There were other features, and we have looked at

8 them: the differences in the legal system; the

9 differences in the rules concerning questioning of

10 suspects. And we know also that there were also changes

11 going on at this time in recommendation to the police

12 complaints system. So all of these matters served to

13 put the particular issue in context.

14 But there is, as I have mentioned already,

15 a particular feature drawn out in the senior officer's

16 outline and of relevance to us, namely the role of

17 Special Branch. As it is put here in paragraph 62:

18 "Special Branch was completely separate from the

19 uniformed side of the police and the CID elements and

20 had its own Assistant Chief Constable."

21 And we have we have seen the structure of

22 Special Branch. And the outline continues:

23 "Its [Special Branch's] approach reflected that of

24 the security services in the UK rather than conventional

25 police forces. The priority for Special Branch was

 

 

57

 

1 gathering national security intelligence rather than

2 evidence for criminal cases. They ran agents in 1999,

3 not informants, and very few Special Branch officers had

4 served in the CID.

5 "There was limited dissemination of intelligence by

6 Special Branch to CID. Special Branch was very

7 concerned about possible exposure of the identities of

8 their sources. Special Branch regions did not brief

9 everything into Special Branch headquarters, and

10 everything received by headquarters did not get

11 disseminated to local police commanders or crime

12 investigators. Crucially, Special Branch made the key

13 decision about what intelligence material should be

14 disseminated, to whom it should be disseminated and in

15 what form."

16 These points stressed in the outline come, as I will

17 explain, to take on a significance in the particular

18 context of this investigation.

19 That is, as it were, all I wish to say at the moment

20 about the broader context. Before getting into the way

21 Mr Ayling has looked at this question of due diligence,

22 can I stress one further general point, which is that

23 there is unanimity also between the senior officers

24 whose outline I have been mentioning and Mr Ayling in

25 relation to the unique nature of the investigation

 

 

58

 

1 itself.

2 The relevant passages are at chapter 15,

3 paragraph 1, I think it is, of the report and at

4 paragraph 179 at page 45 of the outline. Suffice it for

5 the moment to take that latter paragraph. They say:

6 "This was the first investigation team to dedicate

7 staff to collusion enquiries and properly firewall them

8 in a collusion cell. It was a unique innovation in

9 Northern Ireland to dedicate trained analysts to an

10 investigation. There were, furthermore, innovative

11 approaches to the recruitment of staff to the MIT in

12 their use of technology, intelligence gathering and

13 dissemination.

14 "Two specialist family liaison officers from outside

15 Northern Ireland were also introduced to Mrs Nelson's

16 family at an early stage of the investigation at a time

17 when the RUC did not have officers of that kind."

18 Then it says in 180:

19 "Another unique aspect of it was the culture of

20 reviews that prevailed."

21 And various examples are cited, it explains, but not

22 all of them, in this outline. And in particular they

23 refer to the 28-day review, which I will take you to in

24 due course.

25 Finally, they say:

 

 

59

 

1 "This was also the first Northern Ireland murder

2 investigation to invite experts from Great Britain to

3 review key aspects of the investigation such as the

4 forensic line of enquiry and the HOLMES account."

5 So, sir, on that matter also there is a substantial

6 degree, as I say, of unanimity between Mr Ayling on the

7 one hand and the senior officers as set out in this

8 outline.

9 I would like also to stress that in the two files'

10 worth of material which has been disclosed in its

11 provisionally redacted form, there is in the course of

12 the very detailed consideration which Mr Ayling and his

13 team have given to the investigation, a good deal of

14 positive comment, a good deal of reference to aspects of

15 the investigation which met, fully satisfied the test of

16 due diligence and which are described, for example, in

17 one case I can remember, as being praiseworthy.

18 So, as anybody who has read the text even in this

19 form will realise, it does not simply set out a great

20 list of criticisms, there are criticisms expressed,

21 there are concerns expressed, there are matters, as I

22 will explain, which cannot in Mr Ayling's view at this

23 stage be finally resolved in his opinion. But it

24 contains a good deal which is positive and a substantial

25 degree of recognition of the standard, the high standard

 

 

60

 

1 in some areas of the work that was done.

2 Now, so far as the standard which has been applied

3 is concerned, this is the standard set out in the Terms

4 of Reference. The expression is "due diligence", and in

5 relation to this issue it is of course a matter in the

6 end for you to consider, to weigh up all the evidence

7 and material that you have put before you, not just the

8 Ayling Report but the evidence from these senior

9 officers, and any other material produced during the

10 course of the Inquiry which bears upon that question,

11 and at that point for you to reach your conclusion.

12 At that point -- in other words, the end of this

13 particular aspect of our work -- you retain procedural

14 control as you did at the start. It is the Panel's

15 Inquiry; it is not, as I have said repeatedly, a piece

16 of litigation. It is not a case. And it was the

17 Inquiry, the Panel, that determined how this aspect of

18 its Terms of Reference would be considered, namely by

19 instructing an expert who has, with the assistance of

20 his team, prepared a report for you.

21 The opinions, as is perfectly obvious from the text,

22 the opinions which are expressed in the report are the

23 opinions of Mr Ayling. It would be fanciful, indeed

24 absurd, I would suggest, in the extreme to expect

25 a single man to have undertaken the examination of the

 

 

61

 

1 tens, probably hundreds of thousands of pieces of paper

2 which were generated during this investigation; as

3 absurd as it would be in any litigation in which a very

4 substantial expert question has to be addressed, for

5 example, by a forensic accountant. But the opinions,

6 the conclusions, the substance of what is set out in

7 this report is Mr Ayling's work, his opinions, and he is

8 the man who will, as you have decided, give evidence

9 about it.

10 So far as the approach which he has taken to due

11 diligence is concerned, he has come up at

12 paragraph 1.3.1 of his report at page 3, with this

13 simple question:

14 "Whether in the circumstances in which it was being

15 conducted, the investigation was carried out properly,

16 reasonably and efficiently by reference to standards

17 prevailing at the time."

18 So far as the senior officers are concerned, they

19 set out their own way of approaching this question in

20 paragraph 36 of the outline on page 11. They say:

21 "An assessment of whether an investigation has been

22 conducted with due diligence entails asking whether it

23 was carried out competently with proper care and

24 persistence."

25 Then they say:

 

 

62

 

1 "Any assessment needs to take into account the

2 policing standards applicable at the time and, of

3 course, the nature of the investigation itself,

4 including its size and complexity."

5 They add, crucially:

6 "There must also be careful consideration of the

7 context of the investigation, including the historical

8 and political situation in Northern Ireland at the

9 relevant time and its effect on policing."

10 Sir, on this, as on all of the matters raised, it

11 would clearly be a question for you to consider in due

12 course whether there was in substance, rather than as

13 a matter of semantics, any difference between these two

14 approaches.

15 Now, having established his version of the due

16 diligence test, the way he determined to approach the

17 matter, what were the standards prevailing at the time,

18 in Mr Ayling's words, or the police standards applicable

19 at the time, in the words of the senior officers, to be

20 referred to?

21 Mr Ayling has drawn primarily upon two ACPO -- that

22 is the Association of Chief Police Officers -- documents

23 that were applicable to murder investigations in the

24 United Kingdom at that time.

25 The first was the Murder Investigation Manual, MIM,

 

 

63

 

1 the first edition, September 1998, which provides a

2 comprehensive model for the investigation of murder

3 within the United Kingdom, incorporating existing best

4 practice guidance. Secondly, the MIIRSAP, Major

5 Investigation Incident Room Standard Administrative

6 Procedures -- the second edition, October 1993, is I

7 think the relevant one -- this provides guidance on the

8 various functions, processes and documents to be used in

9 the major incident room, MIR. That edition, the 1993

10 edition, incorporated new procedures and changes in the

11 roles performed by key staff to facilitate the phased

12 introduction of the new Home Office Large Major Enquiry

13 System number 1, which is referred to, you will perhaps

14 be relieved to hear, as HOLMES 1. In fact, it appears,

15 as far as the Ayling Report goes, that that system had

16 been introduced -- that is the HOLMES 1 system -- by the

17 RUC in March 1988.

18 Now, there may be an issue here as to the extent to

19 which it is reasonable to judge this investigation,

20 whether presumably at its outset or as it proceeded, by

21 reference in particular to the murder investigation

22 manual, and in brief, whether it is realistic to apply

23 the standards set out there to the full extent, given

24 the particular difficulties presented for policing in

25 Northern Ireland.

 

 

64

 

1 In the summary of the investigation, it was said, in

2 the last sentence at paragraph 3.7.2 that:

3 "The murder investigation manual which was adopted

4 by police forces in England and Wales in 1998 was not

5 formally adopted by the RUC until 2000, but the MIM was

6 a document familiar to the individuals who made up the

7 senior management team."

8 And, as the evidence the Inquiry has already

9 obtained from various witnesses would appear to show,

10 including those from Kent Constabulary, it seems that

11 the origin of the manual was regarded as being in

12 statements of accepted best practice.

13 And of course, the advantage in this sense for the

14 murder investigation team was that the two senior

15 officers at the top of it, the officer in overall

16 command and his deputy, with all the experience they had

17 of investigating murders, came from England where the

18 murder manual had been introduced the previous year.

19 In the MIM itself -- and this is cited in

20 Mr Ayling's report, chapter 1, paragraph 10.5 -- it

21 says:

22 "Murder investigations will always be conducted

23 under the intense glare of national publicity. In the

24 quest for greater professionalism, national standards

25 and systems need to be developed. This will allow

 

 

65

 

1 future investigations to be benchmarked against these

2 standards."

3 Now, that said, it is also important to note, as is

4 highlighted by Mr Ayling, that even where murder

5 investigations are conducted to a very high standard and

6 where there has been, if I can put it this way,

7 a successful outcome -- in other words, a successful

8 prosecution -- there will still inevitably be errors and

9 there will be, in perhaps most cases, elements that have

10 been completed, elements of the work, to a lesser or

11 lower standard.

12 And of course, he also acknowledges in his report

13 that whilst this sort of guidance is an important

14 element to ensure the quality of an investigation, each

15 one, each investigation is in that sense unique and

16 certainly few will conform in every respect to the

17 formal guidance.

18 However, that said, where Mr Ayling takes his

19 position on this is that there are a number of

20 fundamental components of a well-run murder

21 investigation that, notwithstanding any debate about the

22 use of the manual, its applicability or not in

23 Northern Ireland, whether in 1999 or 2000 or thereafter,

24 those elements are needed if the investigation is to be

25 undertaken with due diligence.

 

 

66

 

1 That, if I may say so, is of great importance,

2 because when one comes down to these basic elements,

3 what is said here is that when full allowance has been

4 taken for the context, for the particular difficulties,

5 there are some points so fundamental which remain and

6 which must be complied with in a well-run murder

7 investigation.

8 Now, there is a general pointer, general going way

9 beyond the question of due diligence. In a number of

10 the documents we have seen, there is a theme to be

11 discerned that unless you have had the experience of

12 living and working in Northern Ireland, you cannot fully

13 or properly, competently, assess the conditions and what

14 is going on, or what was going on at this time.

15 Clearly, taken at its most extreme this would rule

16 out any useful expert, independent commentary from

17 outside. Now, the falsity of that point when put in

18 that general way is, you may think, amply demonstrated

19 in the policing context by the fact that the reports

20 I have mentioned do not -- the reports which led to

21 significant reform of the RUC which were implemented, as

22 we have heard, by Mr Kincaid, no doubt among others --

23 those reports do not come from officers whose

24 experience, whose base was in Northern Ireland: Stevens,

25 Blakey, Crompton. Nor is that true of Mr Patten,

 

 

67

 

1 Lord Patten as he now is.

2 So the question here for you is whether, with

3 experience in the policing field and with sufficient

4 allowance taken of the context, whether these important

5 general aspects referred to, cited by and relied upon by

6 Mr Ayling, are valid or not and whether it is simply to

7 be said that because he has no experience of working as

8 a police officer in Northern Ireland, those views should

9 in some way be discounted.

10 Looking back at the second standard -- this is the

11 MIIRSAP document -- I believe I am right in saying that

12 there is no dispute or issue between the Ayling Report

13 and the senior officers, because in paragraph 3.7.2 of

14 the summary it is cited as being the relevant procedural

15 guideline adopted both in England and in

16 Northern Ireland.

17 Sir, the next thing I wish to turn to is the

18 substance of the matter and what I am going to do if

19 I may is to deal briefly with what we learn from the

20 report about events on the ground, the initial response,

21 because that leads into a consideration of how the scene

22 was managed, and then to take you through the structure

23 of the investigation, and then, as briefly as I can,

24 through the issues as they appear to emerge from the

25 Ayling Report and from this document, the outline of

 

 

68

 

1 evidence, with the repeated caveat that this is limited,

2 as I say, to the evidence and outline of the evidence

3 which will be given.

4 So the initial response first. As we have heard,

5 the explosion was heard by several neighbours and by

6 others, and the emergency services were contacted. And

7 I have already made the point to you that their primary

8 focus and that of the emergency services when they

9 arrived was to treat Mrs Nelson and to deal with the

10 appalling effects of her injuries.

11 As I said right on the first day, right at the

12 outset of these submissions, she was eventually taken

13 from the scene to hospital at about half past one.

14 Once that urgent priority had been dealt with, those

15 RUC officers on the scene focused on its preservation,

16 and also, as I have mentioned, on what became

17 a difficult business, namely crowd control. However, as

18 we will hear, there were a number of ways in which it

19 appears that the scene was subsequently contaminated.

20 So far as the structure of the investigation team is

21 concerned, I have mentioned that then Detective

22 Superintendent Kincaid was appointed the senior

23 investigating officer and was at the scene, I think, at

24 about half past one or shortly after.

25 He supervised it, he took initial charge of the

 

 

69

 

1 murder investigation and, as I've explained, M540 was

2 appointed his deputy.

3 Now, from the beginning, allegations of collusion

4 were made, and no doubt with that and perhaps other

5 matters in mind and acknowledging that on any view this

6 was going to be a high profile case, the Chief Constable

7 moved to obtain external assistance. And that came in

8 two distinct forms: first, with assistance from officers

9 from Kent, the Kent Constabulary; and second, with some

10 involvement of the FBI.

11 Concentrating on the Kent officers, the then

12 Chief Constable, David Phillips, now Sir David Phillips,

13 was involved with two in particular senior officers

14 providing an overview during the first three weeks of

15 the investigation; the other officers being Detective

16 Chief Superintendent Ian Humphreys and Detective Chief

17 Superintendent David Gutsell, and they have all given

18 statements to the Inquiry.

19 Sir David was at that time the Chairman of the Crime

20 Committee as well as the Vice President of ACPO, and it

21 was that committee which had been set up to formulate

22 policy in relation to criminal investigations. And he

23 is, as Chairman, the man who instituted the working

24 group which was managed by Mr Humphreys, and that group

25 produced what became the MIM.

 

 

70

 

1 Mr Humphreys in his statement helpfully sets out

2 that aspect of his work. His purpose in putting it

3 together, as he says, was:

4 "To gather together the best national practice and

5 develop a more systematic approach to murder

6 investigation and to develop the concept of a model

7 investigation."

8 He says that:

9 "The manual is not prescriptive, but carries the

10 weight of endorsement by the ACPO Crime Committee and

11 has been subsequently adopted by UK police forces and is

12 currently the basis for most, if not all, murder

13 investigations, obviously there having been revisions to

14 the text in the intervening period."

15 And we will see in the evidence that indeed

16 Mr Humphreys says that he was introduced on arrival in

17 Northern Ireland by Mr Kincaid as the author of the MIM.

18 Now, sir, so far as that is concerned and the

19 limited involvement of the Kent officers, I am not

20 proposing to say any more at this stage. That will

21 emerge in the course of their evidence.

22 But the next stage in the structure of the

23 investigation occurs with the appointment of Mr Port.

24 So he is not involved from the beginning. His

25 appointment is made on the 6th April. He was then the

 

 

71

 

1 Deputy Chief Constable of the Norfolk Constabulary, and

2 again by appointing Mr Port, the Chief Constable was

3 intending to introduce independence, the outside element

4 which was obviously perceived to be important, and in

5 particular because of the allegations of collusion.

6 Now, he -- that is Mr Port -- was given by the

7 Chief Constable Terms of Reference, and I would like to

8 look at them, please, in a departure from my intended

9 course, at a document to the screen at RNI-831-083

10 (displayed).

11 Dated 6th April, and the key parts so far as we are

12 concerned begin in the second paragraph:

13 "You are of course well aware of the international

14 interest in this terrible atrocity and therefore of the

15 need not only to ensure the most effective investigation

16 it is humanly possible to conduct, but to demonstrate,

17 for reassurance of right-thinking people everywhere,

18 that this is so."

19 That is on any view a very substantial mission and

20 it must be pointed out that in addition to the general

21 difficulties of policing in Northern Ireland,

22 a particular feature of running this investigation

23 attested to in the outline was this fact: that the work

24 was being done against this sort of background of

25 international interest. And the role and the strategy

 

 

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1 employed by Mr Port, for example, in dealing with the

2 media is something which is considered and dealt with in

3 the Ayling Report. It was obviously important.

4 So the Terms of Reference continue with reference to

5 the Kent officer, the agents from the FBI, but they are

6 all leaving the scene in terms of the day-to-day

7 running, as you can see, and here are the Terms of

8 Reference beginning at number 1:

9 "It will be your responsibility to direct, control

10 and supervise all aspects including media handling of

11 the investigation ...

12 "2. Your objective will be to identify and

13 prosecute the person or persons responsible for the

14 murder ... or for any associated offence revealed

15 through the process of the Inquiry.

16 "3. You may thus absorb into your investigation any

17 matter elicited during its progress which appears to you

18 to be linked or otherwise connected to it.

19 "4. Should any further matter arise in the course

20 of your inquiries which, in your view, requires separate

21 or independent investigation or which you feel should be

22 investigated by another officer, you will draw this to

23 my immediate attention.

24 "5. No limit or constraint will be placed upon you

25 in the discharge of your function.

 

 

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1 "6. You will have the fullest cooperation from the

2 Royal Ulster Constabulary in this matter.

3 "7. You will have unlimited access to all

4 intelligence and information available to you and all

5 files held by the RUC.

6 "8. The composition of the investigative team,

7 either from within or from outside the RUC, will be

8 a matter for you.

9 "9. It will be my responsibility to ensure that

10 whatever level and nature of resources you require are

11 provided.

12 "10. You will keep me regularly briefed on the

13 progress of the investigation or any significant

14 developments as they occur."

15 Sir, various aspects of that are commented upon in

16 the Ayling Report, and indeed also in the outline of

17 evidence itself, where, at paragraph 80 on page 20, it

18 is said:

19 "It was felt by officers such as Mr Kincaid and

20 M540, that Mr Port brought with him the wherewithal to

21 get things done. He instilled confidence in the whole

22 team that they were going to make progress. His

23 leadership took into account the very different policing

24 environment in Northern Ireland, and as far as was

25 appropriate, worked with it. By securing resources,

 

 

74

 

1 applying structure and direction, he was able to ensure

2 that the MIT was focused on finding who was responsible

3 for Mrs Nelson's murder."

4 And Mr Ayling also comments on the breadth of these

5 Terms of Reference and stresses in particular the fact

6 that there is no limit in terms of resourcing, the

7 assurance that the team would have whatever assistance,

8 cooperation that was required from the RUC and also

9 access, you will have seen, to intelligence held by the

10 RUC.

11 Now, Mr Port took the title of Officer in Overall

12 Command in order, as it is explained, to demonstrate

13 a role he would perform; a role known to police

14 officers, as it is put. And it made him effectively the

15 strategic director of the investigation, and therefore,

16 was seen as recognising but also complementing the

17 position of the SIO, the senior investigating officer.

18 So far as recruiting was concerned, the position

19 maintained from the outset was that it was essential for

20 the health of the investigation, for it to be truly

21 effective, that there should continue to be RUC officers

22 involved. But there was substantial recruiting at this

23 and at subsequent stages from outside the force, and

24 that required negotiation by him and by Mr Provoost with

25 individual officers but also with the chief police

 

 

75

 

1 officers to get the individuals, the staff, required.

2 It seems that during the course of the investigation

3 over 100 police officers from just about every agency

4 and force in England and Wales were to be involved in

5 the investigation, some for substantial periods of time,

6 in addition to, we think, about 75 RUC officers.

7 One final thing on the Terms of Reference: one

8 aspect of it which you will see is that there was to be

9 briefing of the Chief Constable in relation to progress.

10 Now, one of the comments made in the Ayling Report is

11 that the documentary record of such briefings, certainly

12 from the Chief Constable's end, has not emerged, either

13 during Mr Ayling's work or, more broadly, the Inquiry's

14 work. There are some entries in Mr Port's journal, it

15 is right to say, concerning certain interventions by the

16 Chief Constable where specific problems needed to be

17 resolved, but there is something of a gap on that front,

18 although it is clear from the agreed summary at

19 paragraph 3.3.4, that Mr Port reported to the

20 Chief Constable and also, as it is explained, regularly

21 briefed Her Majesty's Inspector of Constabulary from

22 whom the suggestion of his appointment had originally

23 come.

24 Finally, Mr Provoost arrived, as I have said, in

25 under a week after the appointment of Mr Port on

 

 

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1 12th April. And as we will hear, his first significant

2 involvement, so far as the Ayling consideration goes, is

3 in producing the 28-day review of the investigation to

4 that point.

5 Now, sir, the investigation, there seems agreement,

6 had three elements or parts to it. There is, however,

7 some difference between Mr Ayling on the one hand and

8 the senior officers on the other, as to which were the

9 three parts or elements.

10 So far as Mr Ayling is concerned, what he says is

11 that there was a traditional investigative element;

12 secondly, a collusion investigation; and thirdly,

13 a number of proactive covert operations focused upon

14 a number of suspects, which became known collectively as

15 "Operation George".

16 Now, so far as the outline of evidence is concerned,

17 again, as I say, the number is three, three parts, it is

18 said, under the heading "Structure" on page 22 at

19 paragraph 87: One, the mainstream investigation which

20 took place through the major incident room and used the

21 HOLMES system; 2, the intelligence cell based in

22 Stormont and under the immediate command of a detective

23 chief inspector from the National Crime Squad; and 3,

24 the collusion cell which was under the command of

25 Mr Provoost.

 

 

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1 So it looks in essence, therefore, as though the

2 difference between the three approaches is that the

3 officers' approach, the tripartite structure, is

4 a reference to the structure of the investigation,

5 whereas Mr Ayling's elements are each a reference to the

6 work that was actually undertaken.

7 Sir, I will deal with the various elements briefly,

8 which is Mr Ayling's approach to it. The first, the

9 traditional approach, focused on the major incident

10 room. It was set up in Lurgan police station on the day

11 of the murder. It was staffed throughout by RUC

12 officers using the HOLMES system. A new account was

13 opened, it was numbered J404, and it continued to be

14 used -- although I think the system was later updated --

15 throughout the course of the investigation.

16 The traditional way, if I can put it that way, for

17 progressing an investigation is to identify and then

18 progress lines of enquiry, and this is dealt with in

19 great detail in chapter 8 of the report, the Ayling

20 Report, and said by him to be fundamental to the

21 investigation of any murder as they dictate where the

22 focus and energy of the investigation is to be directed.

23 Sir, is that a convenient moment?

24 THE CHAIRMAN: Certainly. Thank you, 2 o'clock.

25 (1.00 pm)

 

 

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1 (The short adjournment)

2 (2.00 pm)

3 THE CHAIRMAN: Yes, Mr Phillips.

4 MR PHILLIPS: Sir, we had arrived at the first of the three

5 elements of the investigation as interpreted or analysed

6 by Mr Ayling, and I was talking about the traditional

7 approach and saying how it proceeds through the

8 identification and progression of lines of enquiries,

9 that is chapter 8 of his report, and the point he makes:

10 that these are fundamental to the investigation of any

11 murder as they dictate where the focus and energy of the

12 investigation is to be directed.

13 Primarily, he says, it is the responsibility of the

14 SIO, the senior investigating officer, to select lines

15 of enquiry, although, of course, within the particular

16 structure of this investigation, from the moment of his

17 arrival and appointment on 6th April, Mr Port had input

18 into that.

19 Many of these in the investigation required

20 protracted work and were not fully completed for many

21 years. The substance of the lines of enquiry and

22 whether they were undertaken with due diligence is

23 obviously a matter to which I will turn when looking at

24 the detail of the work done and also of Mr Ayling's

25 remarks on it.

 

 

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1 But the fact remains at the end of all of this of

2 course that none of the lines of enquiry yielded

3 evidence sufficient to support a prosecution relating to

4 Rosemary Nelson's murder, nor indeed to justify charging

5 for the murder.

6 Now, so far as this traditional element is

7 concerned, it is important at the outset to draw your

8 attention to three issues that in Mr Ayling's view, as

9 expressed in his report, appear collectively to have

10 greatly influenced both Mr Port and the SIO in the

11 selection of lines of enquiry. First, the murder had

12 all the hallmarks of a terrorist-related attack;

13 secondly, at about 8.45 pm on the day of the murder,

14 15th March, a claim of responsibility for the attack was

15 made to the BBC newsroom in Northern Ireland using

16 a recognised code word, and the caller claimed that the

17 Red Hand Defenders were responsible for the murder; the

18 third matter is set out in paragraph 69 of the outline

19 of evidence and that provides as follows, and I am

20 simply going to quote it:

21 "Within a short period after the murder, Mr Kincaid

22 received information that identified a number of

23 individuals linked to the LVF and RHD as being connected

24 with the murder of Mrs Nelson. That intelligence

25 reinforced his assessment, based on his extensive

 

 

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1 experience of terrorist murder in Northern Ireland, that

2 these individuals should be carefully considered.

3 Consequently, the LVF and these individuals became

4 subjects of an early interest for the investigation."

5 So that is the first element, sir.

6 The second element is the collusion investigation.

7 We have already touched on the fact that such

8 allegations were made immediately. They were pursued in

9 the media and by non-governmental organisations amongst

10 others, and we have also seen the two elements to this:

11 first, that Mrs Nelson had been under threat, that the

12 threats had not been sufficiently investigated, that the

13 risk for her as a hate figure for some at least in the

14 Loyalist community was not sufficiently appreciated; in

15 other words, that something could have been done but was

16 not done to prevent her murder.

17 Secondly -- and I have just been over this this

18 morning -- the allegedly high level of military activity

19 in and around the area near her house over the weekend.

20 Very soon after the murder, the SIO designated the

21 investigation of these allegations, the allegations of

22 collusion, as a specific line of enquiry within the

23 investigation. And that included, for example, the

24 investigation I mentioned this morning into security

25 force activity over the weekend.

 

 

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1 And as I have already mentioned, a short while into

2 the investigation a separate team of detectives was

3 formed. They were all non-RUC personnel and they became

4 known collectively as the collusion cell, and we can see

5 reference to that in the outline of evidence at

6 a passage beginning in paragraph 144.

7 Throughout the period of the investigation, the team

8 was managed by either a detective inspector or detective

9 chief inspector and that officer reported to Mr Provoost

10 who had overall responsibility. The cell was based

11 within the major incident room at Lurgan. However,

12 barriers, as it were, were erected between them and the

13 rest of the investigation team. They had their own

14 accommodation, and IT arrangements were made so that

15 they could keep their material in IT terms to

16 themselves. They had their own database which they only

17 could access and interrogate. Their hard copy material

18 was also kept safe and separated from the rest of the

19 material in the investigation office. And again, we can

20 see that in paragraph 147 of the outline.

21 All of the allegations of collusion which surfaced

22 after the murder and from that point on were

23 investigated by the cell, and as is explained in the

24 outline, the approach adopted was open-ended; in other

25 words, if an allegation surfaced that collusion had

 

 

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1 played a part in the murder, the team, the cell, would

2 investigate it. Because, as they explain in their

3 outline -- 145 is the paragraph at page 37 -- they

4 wanted not only to find the culprits but also to find

5 those responsible for orchestrating the murder. So they

6 didn't seek to define collusion, but made it known that

7 if any person or organisation believed there had been

8 collusion then they would treat it as such and

9 investigate it, so that it was both an open-ended and

10 a subjective approach, as it is put there.

11 Now, as a result of that, in addition to the matters

12 I have already mentioned, they considered a range of

13 other issues as they arose, including the question of

14 threats to which I will return.

15 Then the third element in Mr Ayling's analysis is

16 the Operation George element. That is an adopted title

17 given by the team to a series of covert operations, as

18 I have mentioned, those operations targeting key

19 individuals, key suspects. There was, I think it is

20 right to say, no definite start date for that because,

21 as I say, it came to be attached to a variety of

22 different operations, nor any set parameters recorded

23 for it. But in broad terms it was active between June

24 of 1999 and three years later, June 2002, although it is

25 right to say that activity appears to have much reduced

 

 

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1 in late 2001.

2 This element of the investigation used a broad range

3 of covert intelligence and evidence-gathering

4 techniques. At the time of its commencement, the

5 purpose of Operation George was to proactively target

6 a small number of mid-Ulster Loyalist terrorists with

7 a view to obtaining sufficient evidence to secure

8 prosecutions against those responsible for the

9 Rosemary Nelson murder.

10 Now, sir, that is a very brisk outline then of the

11 three elements as perceived by Mr Ayling. What it

12 leaves out of account is the third part of the structure

13 as set out in the outline, namely the intelligence cell.

14 I will talk about that when I talk about the major

15 incident room in a moment, but it is worth mentioning at

16 this stage that one of the things that Mr Ayling

17 applauds in relation to the investigation team's work is

18 the early decision to set up this intelligence cell.

19 And as far as he is aware, there was at that time, for

20 example, no working example of best practice in an

21 intelligence cell to compare with it. So this was

22 a move to set it up early on, which he gives them credit

23 for in his report.

24 Sir, that takes us -- not before time, some might

25 think -- to the first of the individual chapters in the

 

 

84

 

1 report. The report is set out so that each chapter

2 addresses a separate topic. Clearly, there are links

3 between the matters covered in some chapters. What I am

4 proposing to do is to give you an outline of the

5 material contained in the chapters, the main conclusions

6 reached, the matters taken into consideration and, where

7 I can, to set out our understanding of the response to

8 that from the senior officers in the murder

9 investigation team.

10 So the first is chapter 3, which concerns the scene,

11 and the MIM guidance outlines that the priorities are,

12 at the scene after major crime preservation of life,

13 then preservation of the scene and securing evidence.

14 As I have explained, that is exactly what happened here.

15 The device detonated in a public place, as we have

16 seen. There were numerous people nearby and there were

17 obviously vehicles, cars and other vehicles passing.

18 And it follows immediately, one can see, that there was

19 no possibility at all of preserving the scene exactly as

20 it had been at the time of the explosion.

21 We will see also that the scene of the explosion was

22 close to the Kilwilkie Estate, and what happened as

23 a result in terms of trying to control the crowds who

24 gathered and to deal with the public order difficulties

25 that developed also had an impact on the management of

 

 

85

 

1 the scene, whereby resources, time, effort on the part

2 of the police officers had to be directed there rather

3 than in investigating and turning their attention to the

4 simple matter of the scene itself.

5 Now, I have mentioned the two cordons which were set

6 up and that was, as they finally were put in place,

7 arranged on the orders of Mr Kincaid who arrived, as

8 I have said, shortly after 1.35. He also directed that

9 there should be a fingertip search of the gardens of

10 a number of properties in Ashford Grange, and when his

11 deputy, M540, arrived at the scene at about half past

12 two, he was given the responsibility of coordinating the

13 scene on the one hand and the forensic examinations on

14 the other. And he was assisted in that latter task by

15 a principal forensic scientist and by a scenes of crimes

16 officer, both of whom had been summoned to the scene in

17 accordance with standard procedures. There was also

18 present, as we see from the outline at paragraph 98,

19 a search adviser and a search coordinator.

20 The search proceeded in three phases so that the

21 scene could be meticulously picked over, working from

22 the seat of the explosion, if I can put it that way,

23 outwards. And in fact, despite the public disorder that

24 I have mentioned, the scene was maintained and preserved

25 by Mr Kincaid until 7 pm or roughly -- 7 pm the next

 

 

86

 

1 day, 7 pm in the evening the next day, to allow further

2 searches and also so that he could allow the Kent police

3 advisory team, the officers I have mentioned, to pay

4 a visit to the scene. And that is referred to in

5 paragraph 99 of the outline.

6 Now, in his report on this Mr Ayling highlights that

7 after the explosion, neighbours, relatives, including

8 Mr Nelson, came to the scene and their concern,

9 understandably and rightly, was with Mrs Nelson rather

10 than with the murder investigation. And that is not

11 a problem specific or unique to this murder. It is

12 always and understandably difficult for those officers

13 at the scene to try to keep a balance between the

14 imperative in the close relatives and friends to attend

15 to the injured and questions of maintaining material for

16 forensic purposes.

17 There are, as far as Mr Ayling has seen it, five

18 known incidents that may or are likely to have

19 contaminated the scene given that background that I have

20 described; the contamination to a greater or lesser

21 extent.

22 The first of them was obvious to all concerned at

23 the time. Some of the others emerged more gradually,

24 and one, the fifth incident, which I have already

25 mentioned to you, concerning the officer's suggestion

 

 

87

 

1 that a sergeant contaminated the scene, emerged, as you

2 know, five years later.

3 One of the incidents, the final incident, was never

4 disclosed to the investigating team because this was an

5 example of something that was disclosed in a statement

6 made not to the police but to the Finucane Centre. The

7 first which was known at the scene was that a lorry was

8 driven through the scene. It was assisted through the

9 scene before the police arrived by members of the

10 public. When the driver was interviewed by the police,

11 he acknowledged that he saw personal items and debris on

12 the road which he drove over while negotiating his way

13 past the car. The tyres of the lorry were subsequently

14 examined for debris but with no positive result.

15 Mr Ayling comments that the investigation team

16 should have given a higher priority to tracing the

17 driver and enabling an early examination of the tyres

18 for embedded debris, particularly given the fact that

19 the team had raised a number of actions to find

20 additional component parts of the bomb, including

21 a timing device.

22 The next matter concerns Mr Nelson himself.

23 Entirely understandably, he remained within the inner

24 cordon for some time before he moved to allow the

25 emergency services personnel more room to administer

 

 

88

 

1 treatment and eventually to remove Rosemary Nelson from

2 the vehicle. It wasn't in fact until 28th June that the

3 murder investigation team established that Mr Nelson had

4 taken possession of his wife's handbag and its contents

5 at the scene on the day of the explosion because, as he

6 subsequently explained, he didn't wish others to go

7 through her personal things. And he also disclosed at

8 that stage that the bag had contained a threat letter,

9 a letter I have already mentioned early in my opening.

10 Now, Mr Ayling considers that issue and how it came

11 about that the handbag came into Mr Nelson's hands at

12 the scene, and indeed evidence was obtained about this

13 from a witness who says that he told this to the police

14 in March 2000 -- he picked up the handbag whilst at the

15 scene but was challenged by a police officer who took it

16 from him.

17 This particular matter doesn't appear to have been

18 focused on by the team, murder investigation team,

19 until, we think, in November 2002 when an effort was

20 made to trace that police officer. He was then

21 identified. He gave a statement in 2003 confirming that

22 whilst attempting to preserve the scene, people

23 nevertheless ignored him and walked through it, that he

24 had noticed various pieces of plastic, stone, personal

25 effects being kicked around by these persons and

 

 

89

 

1 recalled lifting a handbag, and on looking through it

2 finding a driving licence in the name of Mrs Nelson, and

3 he says he placed this in the open boot of the car.

4 Now, this officer had in fact given a number of

5 earlier statements to the murder investigation team,

6 including one, I think, on the day of the murder

7 concerning his actions in which he had not mentioned

8 handling the handbag. And that, as Mr Ayling points out

9 in his report, which suggests, it is fair to say, that

10 the delay in focusing on this matter was regrettable,

11 but Mr Ayling points out it is not clear why this

12 reference to the handbag wasn't included in the

13 officer's statement made on the day of the murder, not

14 least in circumstances where he, the same officer, had

15 made a note of it in his own notebook.

16 As I have mentioned, a witness who has been given

17 the cipher C598 attended the scene shortly after the

18 explosion and he made a statement in March 2000. I have

19 mentioned the aspect of it which related to alleged

20 inappropriate behaviour at the scene, but he also told

21 the police at that stage that he had seen a handbag

22 about 15 yards from the car. He said he picked it up,

23 and a black umbrella, and was shouted at and told by

24 a police officer that he was walking on a crime scene,

25 and that this officer took both items from him. And it

 

 

90

 

1 may well be that this is the officer I mentioned

2 earlier.

3 Now, the relevance of all of this clearly is that

4 within the inner cordon, it would appear, at this early

5 stage were people who, with hindsight, should not have

6 been there and who may have had the effect by their

7 movements and what they were doing of contaminating

8 forensic material or material for forensic analysis.

9 I have already described to you the incident said to

10 have been witnessed by P614, the kicking of the battery

11 or the black metal object, whatever it was, and I am not

12 going to go over that now save to point out that the

13 assessment of it and the way it was dealt with by

14 Mr Ayling in his report -- the way it was investigated,

15 he is commenting on obviously -- includes commendation

16 for Mr Provoost, for his quick and decisive action in

17 dealing with this matter when it came up and the efforts

18 he made to test the officer's account and to identify

19 the sergeants who were at the scene in uniform. And the

20 conclusion he arrives at is that this matter was

21 thoroughly investigated by the murder investigation

22 team.

23 The final matter, as I have said, is something that

24 didn't come to the attention of the team because the

25 statement dealing with it only went to the Finucane

 

 

91

 

1 Centre. It is a statement of a witness who says that he

2 checked under the car for further devices, amongst other

3 things, and checked the area for her personal belongings

4 and noted a number of papers. And the relevant

5 reference in the Ayling Report for people's note is

6 3.4.15. However, having noted what apparently was an

7 understanding of the need to preserve the forensic

8 evidence at the scene, he goes on to explain that he

9 kicked a number of broken car parts in to the verge in

10 order to enable access by the emergency service

11 vehicles.

12 Mr Ayling comments, not surprisingly, you may think,

13 that it is unfortunate that this information was not

14 disclosed to the murder investigation team who visited

15 this individual during their house-to-house enquiries,

16 and also unfortunate that the content of this statement

17 was not provided to the team either by him or the

18 Centre, because it might have had an influence on the

19 ongoing search for missing components. And he

20 concludes, unsurprisingly again, you may think, that no

21 blame can possibly attach to the team for the missed

22 forensic opportunity.

23 Now, in conclusion, therefore, Mr Ayling says about

24 the scene that the initial reaction of all concerned was

25 absolutely correct: focus was primarily on the treatment

 

 

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1 of the victim and her removal to hospital, the

2 parameters set for the scene searches were appropriate,

3 the searches were thorough, the exhibits retrieved were

4 correctly recorded, the retention of the scene for over

5 30 hours in the difficult circumstances, I have

6 mentioned, was praiseworthy. However, he makes some

7 limited criticisms and they relate to the fact that some

8 members of the public obviously were able to penetrate

9 the inner cordon, and as a result, it would appear, to

10 contaminate the scene. And I have already mentioned the

11 criticism, limited as it is, that he makes in relation

12 to the pursuit of the incident with the lorry.

13 However, overall his conclusion is that this aspect

14 of the investigation was satisfactory and indeed that

15 the standards of due diligence, making allowance for the

16 difficult and indeed dangerous conditions that prevailed

17 on the ground, was met.

18 Now, sir, that is the immediate aftermath of the

19 murder. The first element of it, which is considered in

20 the traditional element as set out by Mr Ayling, is the

21 major incident room. As I have explained, this is in

22 a sense the hub of any investigation of this kind. The

23 SIO leads and directs the investigation in most cases.

24 Here, we have the extra layers of command above him,

25 but any investigation will gather together a substantial

 

 

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1 quantity of information, of intelligence of evidence,

2 that the SIO will need to consider, to research, to

3 develop throughout the life of the investigation. And

4 plainly, he can't do that relying on his memory alone or

5 indeed the memory of the officers who work in his team.

6 There has to be a framework, an administrative and

7 a data-holding framework on which the information can be

8 stored and then accessed and retrieved for whatever

9 purpose necessary. And this is one of the functions of

10 the major incident room within the investigation.

11 I have already mentioned both the system adopted,

12 the HOLMES computer system, and the guideline, the

13 MIIRSAP 1993 edition. So far as the HOLMES is

14 concerned, the system facilitates the capture and

15 storage of all the available data in a systematic way so

16 that the senior investigating officer can focus and

17 direct all the resources at his disposal appropriately

18 and in line with the priorities of the investigation.

19 And often, those are the identification and arrest of

20 the perpetrators, obviously, but it includes other

21 equally important areas which in their turn support the

22 thoroughness of the investigation, and that is

23 Mr Ayling's report at 2.4.1.

24 I have mentioned the intelligence cell and, as I've

25 said, that was placed within the MIR and that was

 

 

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1 formally acknowledged as a way of dealing with such

2 intelligence cells in the 1998 edition of the MIM. And

3 in his text in his report, Mr Ayling spends some time

4 dealing in chapter 2 with how, in theory at least,

5 intelligence should be managed.

6 What he sets out at 2.8.3 is the principle of the

7 thing, which is that:

8 "Intelligence in relation to such an investigation

9 should be channelled through a separate but linked unit,

10 specifically skilled in intelligence management and

11 development."

12 He concedes that examples of effective cells of this

13 kind were hard to find throughout the 1990s, and indeed

14 it is only recently that the police service as a whole

15 has increasingly embraced this concept. That is the

16 background to the setting up of the intelligence cell

17 that I mentioned earlier. It was established in this

18 case under the management of the Detective Chief

19 Inspector in order to maximise intelligence and turn it

20 into evidence. It was separate from the major incident

21 room. It maintained its own HOLMES database with the

22 code X2 and that database was only accessible to members

23 of the cell, and in their outline the senior officers

24 comment on it and say that:

25 "The scale of the intelligence cell in this case was

 

 

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1 almost certainly without precedent. The MIT had to

2 devise an appropriate structure to accommodate the

3 particular requirements of this investigation and all of

4 the police officers in this cell were non-RUC officers."

5 Now, turning then to HOLMES, it seems clear from the

6 work done by Mr Ayling to consider this that the sheer

7 volume, the high number of major incidents, primarily

8 terrorist-related incidents, in Northern Ireland,

9 combined with the finite amount of resources seemed to

10 have led the RUC to adapt what was regarded certainly in

11 England as the practical application of the HOLMES

12 system.

13 Now, these systems, the room, the major incident

14 room and the HOLMES computer system, were the subject of

15 two reviews during the course of the investigation:

16 first, the 28-day review I have had mentioned undertaken

17 by Mr Provoost, undertaken on 25th May; and then

18 secondly, a review specifically of the major incident

19 room and HOLMES itself undertaken by an outside officer

20 from, I think, Durham Constabulary and dated

21 28th September 2001.

22 So far as the recommendations were concerned, the

23 outline suggests that recommendations made in the course

24 of these reviews were not only dealt with and many of

25 them implemented internally, but some in relation to the

 

 

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1 later review, 2001, were of wider implication than the

2 murder. And they say that Mr Port directed that they --

3 that is the recommendations -- should be passed to the

4 PSNI for consideration.

5 Now, both the reviews acknowledged that the RUC had

6 adapted the roles, responsibilities, the key personnel

7 within the major incident room to deal, to respond to,

8 the unique nature of policing in these conditions in

9 Northern Ireland, in particular the need to ensure that

10 actions were generated and allocated with great urgency.

11 The problem here, as identified in the review by

12 Mr Provoost and as referred to by Mr Ayling in

13 paragraph 2.11.1 of his report, is whether this was an

14 effective approach to a lengthy murder investigation.

15 What he commented at that stage, at the 28-day review

16 is:

17 "This approach is not best suited to a protracted

18 investigation."

19 So far as Mr Ayling is concerned, he believes and

20 has expressed the view that both reviews result in

21 missed opportunities, missed opportunities to rectify,

22 to correct some of the deficiencies which the reviewers

23 had identified.

24 However, before looking at that assessment, can

25 I just deal briefly with the views he has expressed

 

 

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1 about the roles and responsibilities of the various

2 officers within the major incident room, because here

3 also Mr Ayling -- and I don't wish to get into detail at

4 this level, but he has identified that there are some

5 departures from the MIIRSAP guidance in relation to the

6 various roles within the major incident room, and

7 explains in chapter 2, beginning, I think, at 2.9, where

8 they occurred; the first is in relation to the office

9 manager role, the second in relation to receiver and the

10 third, the action allocator.

11 Just saying a little bit about him, the action

12 allocator, as his name suggests, allocates individual

13 actions to the Inquiry team, assesses the order of

14 priority for allocation in accordance with the senior

15 investigating officer's policy and ensures that each

16 action is allocated to an officer or officers who are

17 able to perform the task.

18 There is no evidence, says Mr Ayling here, that an

19 action allocator was appointed to manage and prioritise

20 the queues which built up of uncompleted, incomplete

21 actions.

22 And in this regard Mr Ayling refers at

23 paragraph 2.13 to the report of Mr Blakey I have

24 mentioned earlier. That report, produced in 2003,

25 entitled "A Thematic Inspection of Murder Investigation

 

 

98

 

1 in the Police Service of Northern Ireland", includes

2 a section in which he, Mr Blakey, describes roles and

3 responsibilities and compares the MIIRSAP guidance I've

4 mentioned with what was then current practices he had

5 founded in the PSNI, and makes comments which Mr Ayling

6 believes reveal a situation similar to that which was in

7 place in this investigation.

8 Now, so far as weighing all this up is concerned, he

9 accepts that officers trained in these areas are indeed

10 precious resources and that it is difficult to persuade

11 other forces to part with them. But if there was

12 a difficulty as a result of the RUC's general approach,

13 the point made is that given the width of Mr Port's

14 terms of reference, it might have been possible to

15 obtain secondees from forces outside Northern Ireland.

16 What did all of this amount to? Well, the

17 conclusion given in this chapter is that there were

18 a number of negative consequences, including a number of

19 incidents where actions raised to progress important

20 lines of enquiry took a very long time to complete. In

21 other cases, significant deficiencies in returned

22 actions, i.e. in the reports of what had actually been

23 done, were not identified at the point of submission

24 back into the room but only following the number of

25 reviews that took place. And this is described by

 

 

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1 Mr Ayling in his report as a systemic failure that could

2 have been avoided by adherence to the MIIRSAP guidance,

3 and in particular, if the roles that I have mentioned --

4 receiver, office manager and action allocator -- had

5 followed the description in the guidance, these matters

6 being within the overall responsibility of the SIO

7 himself; the result being that the effectiveness and the

8 efficiency of the room was affected.

9 Now, in two main respects, as identified by him,

10 first -- I have hinted at already -- action management;

11 secondly, suspect management. On the first, in his view

12 there is little evidence of action management. The

13 HOLMES system provides within it a basic management

14 system which allows for prioritising and restoring of

15 actions in queues for allocation. But here, because in

16 his view there was no approach by way of prioritisation

17 and there was no action allocator with that specific

18 role, it meant that the burden of deciding on priorities

19 went effectively to those officers to whom the actions

20 were themselves allocated, which meant in turn that they

21 went out of the immediate control of the MIR staff and

22 beyond the effective control of the SIO and his deputy.

23 He gives as an instance of this examples where on

24 occasions minor matters, minor actions were completed to

25 the detriment of higher priority or high priority

 

 

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1 action.

2 Second, suspect management. This is what is

3 sometimes referred to as "trace, interview or implicate

4 and eliminate actions" TIIE. They are, he says,

5 particularly important in a protracted investigation

6 that is likely to generate significant numbers of

7 suspects. And if you have significant numbers of

8 suspects, you need a clear set of elimination criteria

9 to be laid down and documented.

10 He suggests that certainly by the beginning

11 of June 1999, it was obvious that the investigation was

12 likely to be lengthy and, therefore, feels that the

13 senior investigating officer should have ensured that

14 these criteria were documented and, of course, used.

15 Now, he acknowledges that developing such a policy

16 in this case would have been difficult because of the

17 likely number of individuals involved in an attack of

18 this kind, whether actively on the day or the day

19 before, or at earlier stages of the process.

20 Nevertheless, his view is that there could have been

21 such a policy produced, developed, implemented,

22 involving the categorisation of such suspects according

23 to the role they may have played in the murder, and this

24 in turn would have resulted in the prioritisation of

25 investigation activity and clarified the question of the

 

 

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1 ongoing status of individuals as suspects.

2 He points out that even now in looking at the HOLMES

3 system in the course of his assessment, it is not

4 possible by considering the system to identify the

5 status of individual suspects. This, in his view,

6 contributed to the lack of focus on alternative suspects

7 during the course of the investigation.

8 Now, the final point in this area is the question of

9 indexing. It sounds dry and possibly even dull, but in

10 fact it is essential when you are trying to manage and

11 control a substantial and growing amount of information,

12 because if you do not have a comprehensive, coherent and

13 focused indexing policy with indexing records, then it

14 means that when you interrogate the system, the HOLMES

15 system, you do not get back the sort of return in terms

16 of categorised, focused data which will allow you

17 effectively to progress the investigation.

18 In his view, what that led in this case -- the

19 absence of effective indexing with thousands of

20 cross-references on the system -- is that the system

21 became difficult and time consuming to search and much

22 of the indexing was so ineffective as almost to be

23 meaningless. And that was, in turn, exacerbated by the

24 fact that information was transferred, information

25 gleaned by Operation George by the intelligence cell,

 

 

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1 into the HOLMES account, but in such a sanitised form

2 that it was difficult to establish what the information

3 in question was.

4 Now, taking all of that together, the benefits of

5 the HOLMES system to an investigating team were to

6 a degree impaired as a result of this. If, of course,

7 he would say, the reviews, having picked up the possible

8 difficulties, had resulted in corrective action, then it

9 may be that at some point during the investigation,

10 matters would have been got back on course. But he

11 finds in his report that that did not happen and he

12 considers that looking at the work as a whole of the

13 room throughout the investigation, there is evidence

14 here of a lack of leadership, a lack of grip by the

15 senior investigating officer and his deputy in dealing

16 with this matter.

17 The result of the matter so far as the HOLMES system

18 is concerned, is, as he puts it, that it evolved, into

19 a vast computerised filing cabinet. Although it

20 provided accurate information, it made the search task

21 difficult and in many cases time consuming and

22 frustrating.

23 Now, he explains that the standard which he finds of

24 the major incident room was a reflection of a different

25 approach, a different approach taken by the RUC to these

 

 

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1 matters at the time -- in other words, in 1999 -- and

2 attributes the shortcomings of the HOLMES system here to

3 following flawed operating procedures, rather than to

4 the defaults or errors of individual members of the team

5 working in the room.

6 So even though there may have been very hard-working

7 and dedicated staff, the systemic difficulty I have

8 mentioned coupled, in his view, with the lack of

9 supervisory intervention had the adverse effects that

10 I have mentioned.

11 Now, so far as his conclusion is concerned, however,

12 he is concerned -- and one can see this in the text

13 itself at 2.15.4 -- to take into account other balancing

14 and mitigating factors. And he acknowledges first that

15 Mr Port inherited this system, the room set-up, at the

16 beginning of April. He, as I have said, takes the view

17 that more could have been done as a result of the

18 reviews, particularly that conducted by Mr Provoost.

19 However, he acknowledges that the RUC's own MIR

20 procedures and the lack of training of key staff members

21 were significant factors in explaining and, for him,

22 understanding the shortcomings and their consequences.

23 And so, taking all that into account, he expresses

24 the view that the due diligence standard was met in

25 relation to the major incident room component of the

 

 

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1 investigation, and that is an example, if I may say so,

2 sir, of where in the report a number of points are made,

3 some criticisms along the way, but there is at the end

4 of it a general taking of account and the matter is put

5 in the balance. And at the end, the conclusion, having

6 given accounts to what he describes as the mitigating

7 factors, the net conclusion he reaches on this aspect of

8 the matter is that in fact due diligence, that standard,

9 was attained.

10 The next topic I want to talk about briefly is

11 communications -- I have mentioned it before -- and

12 media, and they can be dealt with in short order.

13 I have already drawn to your attention the fact that

14 this event attracted publicity, media interest, both in

15 Northern Ireland and around the world. There was from

16 the outset a clear media strategy that, in Mr Ayling's

17 assessment, assisted in ensuring that the response to and

18 indeed the use of the media by the team was to good

19 effect.

20 He refers to the fact that of course the media in

21 this case, as perhaps in other cases, have their own

22 agenda, that focusing their attention upon the political

23 ramifications of the murder, on speculation as to which

24 group was responsible and on the press coverage of

25 perceived failures on the part of the authorities to

 

 

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1 protect Rosemary Nelson, as well as, of course, on

2 pursuing collusion allegations and calling, as happened

3 not just at the beginning but at later stages in the

4 investigation -- calling for the entire investigation to

5 be independent of the RUC.

6 So this was on any view, you may think,

7 a challenging investigation to lead, to conduct, from

8 the media point of view alone. Mr Ayling commends the

9 positive, professional and effective strategy that was

10 implemented, appeals for witnesses in the media,

11 exposure of the salient facts of the case and

12 underlining of the determination of the senior officers

13 to bring those responsible to justice, close working

14 with the RUC's own press office, information releases

15 well managed and, where appropriate, advertisements

16 taken out to ensure that the right information was

17 reaching the public and that, where relevant, appeals

18 for further information were made.

19 One can see from the outline that Mr Port regarded

20 it as his own role -- indeed it was referred to, if you

21 remember, in his terms of reference, when we looked at

22 them -- to deal with the media and that is set out in

23 his outline at 168 and 169 on page 43. Mr Ayling points

24 out that appeals through the media had a mixed response

25 but that the efforts continued, and again, compliments

 

 

106

 

1 the consideration given to the timing and the content of

2 the press releases. He also mentions that the family

3 were kept involved and kept informed of media releases

4 and, where possible, given notice of breaking news

5 stories.

6 So, as you won't be surprised to hear, given these

7 comments, this aspect of the investigation is assessed

8 by Mr Ayling as having met a good standard and

9 comprehensively meeting the requirements of due

10 diligence.

11 Communications is a reference to internal

12 communications, as opposed to outside communication.

13 During the early stages, the SIO implemented a strategy

14 for this to ensure there was effective internal

15 communication, and that is reflected in his decision to

16 hold twice daily conference meetings with all the key

17 personnel who were working on the investigation. Again,

18 it is a matter taken up by the senior officers in their

19 outline and referred to in the section which begins at

20 paragraph 87 on page 22.

21 That deals first with the structure of the team and

22 then the meeting structure to ensure good management,

23 the formulation and coordination of strategies.

24 I am not going to go through this in detail. You

25 can see they are set out in the section which begins at

 

 

107

 

1 paragraph 93, the various types of meeting that took

2 place: the MIR conference, the tactical intelligence

3 meeting, the strategic intelligence meeting, the

4 management team meeting and then the senior management

5 meeting.

6 And Mr Ayling's comments on this are that during the

7 early months, the first three months of the

8 investigation, there was effective internal

9 communications strategy. How this developed and how the

10 question of the exchange of information between the

11 three elements of the investigation was managed after

12 the start of Operation George is a topic that I am going

13 to turn to when I look at that.

14 Now, the next topic is victimology. This is

15 chapter 6 of the report and it is a chapter where even

16 given the limits of this outline of evidence, I think I

17 can say with some confidence that the views expressed by

18 Mr Ayling are not accepted and not shared by the senior

19 officers.

20 Mr Ayling's position, beginning at 611 on page 146

21 of the report, is that this -- victimology -- is

22 normally a key element of murder investigations. It

23 informs the senior investigating officer in relation to

24 the lifestyle and the relationships of the victim. The

25 question which arises is to what extent it was

 

 

108

 

1 appropriate to follow that usual approach in the very

2 particular circumstances of this case.

3 Mr Ayling's view is that it is still necessary to

4 undertake such detailed work. Indeed, he says it is

5 paramount where the victim has been specifically

6 targeted and it -- the importance of victimology --

7 increases the longer the investigation continues, the

8 longer the crime remains unsolved. And that research

9 into the background of the victim assists in

10 establishing motive, motive for the crime, and also

11 supports the development of hypotheses, i.e. suggestions

12 as to the possible reasons for the targeting of the

13 victim and who might have been responsible.

14 But it has a further important effect in his view,

15 which links this topic with other comments, criticisms,

16 expressed in the report. This is that a thorough

17 victimology line of enquiry reduces the risk of

18 assumptions being made that are not subsequently and

19 robustly challenged. The murder investigation manual

20 puts it in this way:

21 "SIOs should at all times be aware of the dangers of

22 either making assumptions themselves or believing that

23 assumptions made by other members of the investigation

24 team are indeed fact. This highlights the need for

25 continued analysis of information and testing of

 

 

109

 

1 inferences."

2 Putting it very broadly and not just confining it to

3 victimology, this is one of the central themes of

4 Mr Ayling's report, that there was insufficient

5 challenge, testing, questioning of the original

6 hypothesis, the original assumptions made. And the

7 points that he makes in a number of different chapters

8 of this report, including some of the chapters which

9 have not been released to the Full Participants because

10 the redaction issues have not been resolved, go to this

11 central theme. He also expresses the view that the

12 potential benefits of developing victimology applied to

13 this particular murder, this homicide, as they do to

14 every other one.

15 Even allowing for the potential difficulties raised

16 by this case, he gives his view that not pursuing

17 victimology as a line of enquiry in this case had

18 an adverse impact on the investigation. It contributed,

19 he says, to the apparent lack of hypotheses developed by

20 the senior investigating officer in relation to the

21 crime, the motives for it and indeed the period during

22 which the device was placed.

23 He feels that there was sufficient information

24 available to the murder investigation team that required

25 them to undertake that sort of investigation relating to

 

 

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1 this victim, Rosemary Nelson, in order to develop such

2 alternative hypotheses and then to direct investigations

3 so as to support or, as it may be, to disprove them.

4 That would not, in his view, have jeopardised the

5 decision which was made to pursue lines of enquiry on

6 the basis that it was a Loyalist terrorist attack. He

7 says:

8 "It is both common and good practice in murder

9 inquiries to consider alternatives and run the

10 investigations into proving or disproving them in

11 parallel."

12 This he regards as a misjudgement, amounting in this

13 case to a failure to attain the standard of due

14 diligence by the murder investigation team in this case.

15 Had they done so, it is his view -- and of course

16 this is itself a hypothesis -- that it would have led to

17 the consideration of other suspects, others who might

18 have had a motive and the means to carry out the murder

19 of Rosemary Nelson.

20 Now, so far as this is concerned, the senior

21 officers deal with the point not under the heading of

22 victimology, in paragraph 171 and they say that:

23 "Mrs Nelson's movements, background and lifestyle in

24 the period prior to her death were considered to the

25 extent that Mr Port and the other members of the MIT

 

 

111

 

1 senior management team regarded as proportionate,

2 appropriate and relevant to the investigation."

3 Then they deal with an aspect of this, rumours and

4 gossip relating to her personal life:

5 "However, there was no information or evidence

6 whatever that the subject matter of these rumours and

7 gossip had any bearing on the murder investigation."

8 The remainder of this section is in fact concerned

9 with liaising with the family. When one looks in detail

10 at Mr Ayling's chapter 6, one sees, of course, that it

11 is not by any means limited in its consideration to the

12 matters referred to in paragraph 171. The approach that

13 he says should have been taken would have been a much

14 more open, much wider approach than that and that

15 approach would have involved considering other

16 possibilities and exploring them as part of a robust

17 victimology line of enquiry.

18 Now, sir, the next chapter deals with significant

19 witnesses and family liaison. It is chapter 7. So far

20 as that is concerned, they are in the view of the

21 experts, these two topics, often viewed as closely

22 associated. And here the same applied, because members

23 of the family fell to be considered under the heading of

24 significant witnesses.

25 Again, if I can just take you through the points

 

 

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1 made briefly, it is stressed in the report that

2 a documented and clear policy in relation to significant

3 witnesses is important to ensure both that they are

4 identified at an early opportunity, but also that

5 thereafter they are dealt with consistently and in a way

6 that maximises the evidence that they can provide. And

7 citation is given in the report of the relevant

8 paragraph of the manual.

9 Within the criteria set out in that manual,

10 Mr Ayling in his assessment has identified over

11 30 witnesses that should, in his view, have been treated

12 as significant. They include those who attended the

13 inner scene during the early stages, the medical

14 personnel who attended the scene in the early stages and

15 last the family and close associates.

16 Of particular importance, he says, are the people

17 who emerge at the early stages of an investigation as

18 significant witnesses, because much of the subsequent

19 work in the investigation may well be based on the

20 information that is put into the system, that is put

21 into the investigation by those witnesses at that early

22 stage.

23 He says that in the course of the work that he and

24 his team have done, he could not find any documented

25 policy relating to the method used to identify or

 

 

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1 interview significant witnesses, whether in the policy

2 file maintained by the senior investigating officer or

3 elsewhere. Neither has the examination that he has been

4 able to undertake of the way in which the witnesses were

5 actually dealt with, neither has that revealed any

6 material or evidence to indicate that such a policy

7 existed or was employed.

8 Further, there is no indication that supervisors

9 have sought to pay particular regard to this type of

10 statement taking; in other words, taking statements from

11 significant witnesses by the team.

12 Now, he acknowledges and takes into account the fact

13 that in Northern Ireland -- it is another feature of

14 policing there, and for those investigating crime and

15 particularly terrorist incidents in 1999 -- witness

16 intimidation was a significant feature. And he points

17 out and acknowledges that that would have made it very

18 difficult for the team to have complied fully with the

19 MIM guidelines.

20 However, he stresses that it remains important to

21 ensure the best and the fullest evidence possible that

22 is obtained from such significant witnesses. That might

23 involve further interviews, it might involve doing those

24 interviews after the trauma of the event has subsided.

25 And he points out that some of the early statements from

 

 

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1 these witnesses were obtained by RUC officers and raises

2 the point that it might have been appropriate to obtain

3 additional information later by re-interviewing them

4 using non-RUC personnel given the background to the

5 investigation.

6 As part of this analysis, he highlights that

7 experience has shown that further interviews can often

8 produce additional evidence and gives an example here of

9 a witness who was at the scene. She gave a statement on

10 15th March and the statement contained what she says was

11 comment by Rosemary Nelson which could well have been

12 clarified and amplified in later interview, once the

13 trauma had subsided and she was altogether in a calmer

14 frame of mind. And that is paragraph 7.3.3.

15 Now, having acknowledged that it would be unfair to

16 apply rigidly the MIM standard at this time in relation

17 to this murder, he also points out that standards varied

18 considerably at the time and concedes that of course

19 there are some witnesses who, however many times you

20 visit them, even if you allow a considerable lapse of

21 time, no further, no better, no additional information

22 emerges. And with those sorts of factors in mind, he

23 concludes that this aspect also of the investigation met

24 the relevant standard.

25 In relation to family liaison, I have touched on

 

 

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1 this already and this is an area where there was

2 innovation so far as the investigation is concerned. If

3 you remember, specialist officers were brought over to

4 liaise with the family once Mr Port had been appointed,

5 and they remained full-time until September, when their

6 involvement was reduced to a part-time basis. And this

7 was a first in Northern Ireland, as I think I have said.

8 They reported directly to Mr Port and dealt with

9 relations with the family at this very, very difficult

10 time in the early stages of the investigation, and

11 Mr Port himself, as is clear from the outline at

12 paragraphs 172 and 173, wherever possible dealt with the

13 family himself. So in addition to the work of the

14 specialist officers, he also took a strong view and, it

15 seems from the material, followed it through that the

16 family should be kept informed and play a role in the

17 investigation.

18 The two reasons for that are set out in

19 paragraph 172. First, as it were, what one would expect

20 to be the usual reason in relation to a bereaved family,

21 but secondly, he cites the effect on the investigation,

22 if they were publicly to withdraw their support for the

23 investigation, would have been to further reduce the

24 level of the cooperation the team were getting from some

25 elements of the community, some NGOs and some

 

 

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1 politicians.

2 So taking all that of together, Mr Ayling has, you

3 may think, no difficulty in saying that this aspect of

4 the work met the due diligence standard. Indeed, he

5 says that the team did all they could to develop and

6 maintain effective family liaison arrangements.

7 Now, the next chapter is the very substantial

8 chapter 8, which is lines of enquiry. It is in a sense

9 the heart of the investigation and I am just going to

10 remind you about this chapter, that parts of it,

11 relatively small parts of it, but parts of it have been

12 redacted in the copies disclosed to the Full

13 Participants.

14 Sir, so far as they are concerned, again as briefly

15 as I can, I intend to touch on these areas of the work.

16 First is house-to-house enquiries and witnesses at the

17 scene. The guidance manuals contain assistance here,

18 and what happened in our case is that there were two

19 phases of house-to-house enquiries -- phase 1, the

20 addresses in and around Ashford Grange; and phase 2,

21 a rather wider area -- the idea being to see as many

22 occupants as possible in each household in phase 1 and

23 at least one adult of the properties in phase 2.

24 There was a second wave of visits in addition in

25 early April concerning outstanding, unidentified

 

 

117

 

1 vehicles and a letter written by Mr Port to the

2 occupants who had still by this stage not been seen.

3 That was in late April.

4 The result of that was that over 300 houses were

5 visited, more than 430 people were interviewed, and in

6 the course of that a number of issues relating to

7 individuals but also to vehicles were resolved. As

8 I have mentioned, there were public order problems

9 encountered by the officers while undertaking these

10 enquiries. It was through this process, for example,

11 that the issue about the vehicle checkpoint on the

12 Castor Bay Road emerged, and so this was work that

13 yielded further lines of enquiry or investigation.

14 Now, although Mr Ayling expressed minor concerns in

15 relation to this, in chapter 8, 8.3.6 and following, he

16 has pronounced himself to be satisfied with this line of

17 enquiry. It was introduced from the outset, there was

18 a defined strategy, phase 1, followed up with phase 2,

19 and he compliments the team on the parameters of both

20 phases and is satisfied from what he has seen that the

21 SIO had clearly defined the area to be covered,

22 highlighted where the main focus should be concentrated

23 and identified the information they were looking for,

24 they needed to capture.

25 Mr Kincaid in the outline, comments at paragraph 117

 

 

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1 that the house-to-house enquiries were of

2 a greater extent and depth than any he had previously

3 encountered. He says in paragraph 116 that the

4 parameters were set far more widely than in any other

5 investigation he had been involved in and that the work

6 was the most thorough.

7 Now, Mr Port also, as I have explained, involved

8 himself personally in this matter and wrote a letter to

9 the non-responders in an attempt to engage them with his

10 team's work.

11 THE CHAIRMAN: Would that be a convenient moment?

12 MR PHILLIPS: Yes.

13 THE CHAIRMAN: Thank you, Mr Phillips. Just after half

14 past.

15 (3.17 pm)

16 (Short break)

17 (3.31 pm)

18 THE CHAIRMAN: Yes, Mr Phillips.

19 MR PHILLIPS: So, sir, concluding then on the house-to-house

20 enquiries, whilst no major leads emerged from this work,

21 Mr Ayling's view is that it was generally undertaken to

22 a good standard in a challenging environment and met due

23 diligence standards, and indeed the senior management

24 team, if I can put it that way, say in their outline --

25 this is the last sentence of paragraph 118 -- that:

 

 

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1 "The extent and depth of the house-to-house

2 enquiries illustrated the professionalism and commitment

3 of the murder investigation team."

4 Moving then to particular witnesses, and the search

5 for witnesses at the scene, the house-to-house line of

6 enquiry was extended so as to include them and in

7 particular certain types of witnesses, including taxi

8 drivers and home delivery drivers referred to in the

9 outline in paragraph 119. This revealed two significant

10 sightings to do with a white Ford car and an unknown

11 female, who is said to have been dropped off nearby at

12 about half past 12 -- that is half past midnight -- on

13 the night before the murder.

14 So far as the work done on this discrete area of the

15 case is concerned, Mr Ayling's view is that enquiries

16 were professionally undertaken to a good standard. The

17 actions were raised in a timely fashion, they were

18 undertaken with due diligence, the opportunities which

19 they presented were explored and taken to an appropriate

20 conclusion.

21 Next is the examination of CCTV material. There

22 were no cameras in the immediate vicinity of the house

23 or on the approach roads, but tapes were seized from the

24 premises where they did operate, such as, for example,

25 service stations, RUC masts and some industrial

 

 

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1 premises.

2 There were 44 tapes seized in all and a strategy for

3 viewing them, the substantial amount of material, was

4 outlined by the senior investigating officer and

5 Mr Ayling concludes that this aspect showed the SIO

6 adopting a strategic, intelligence-led approach with

7 clearly defined geographic parameters and with directed

8 early activity to seize the tapes. It was a complicated

9 area of work. It was resource intensive, but it was

10 diligently and professionally executed within the

11 parameters set. And although it didn't produce any firm

12 leads, it was exhaustively and comprehensively pursued.

13 So that takes us, sir, to the complicated and

14 many-layered topic of forensic management and to the

15 various aspects of that which are considered in the

16 report. They have their own chapter, which is

17 chapter 4.

18 Now, in all murder investigations a line of enquiry

19 is to ensure the careful retrieval of exhibits, forensic

20 material, then for them to be analysed, and that is

21 a key component of investigative work and frequently

22 provides opportunities to the team.

23 In the outline, the point is taken at paragraph 100

24 that the SIO, his deputy and the scientists with whom

25 they liaised were all hugely experienced in dealing with

 

 

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1 terrorist incidents, and then examples of both the

2 officers' experience is set out for us in that

3 paragraph.

4 The murder manual highlights that science of this

5 kind, the forensic science, invariably plays a pivotal

6 role in the investigation of murder. And as a result,

7 investigators should be aware of the advantages which

8 forensic science can bring to each investigation. And

9 it suggests that SIOs ought to consider constructing

10 a team, a forensic management team, to assist and advise

11 concerning such issues.

12 Now, so far as this case is concerned, there were

13 three main areas for forensic work or activity: The

14 first was the scene itself; the second was the car; and

15 the third was related to the post mortem.

16 I am going to focus my attention on the first two.

17 Now, as I have already mentioned, a scientific

18 officer from FSANI examined the scene with the scenes of

19 crime officer from the RUC, and the scientific officer

20 having conducted his examination of the scene and also

21 of the remains of the component parts of the device,

22 indicated first verbally and then in a report to the

23 team that in his view this device was similar to devices

24 used in seven previous Loyalist attacks. And that is at

25 paragraph 4.5.4 of the report and I will return to it in

 

 

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1 a moment.

2 Mr Ayling expresses the view in his report, 4.9.3,

3 that there appears to be little doubt that this linkage

4 between this particular device and the other similar

5 devices became a very important factor to the team in

6 determining their strategy, their investigative

7 strategy, and in the early decision to focus upon

8 mid-Ulster Loyalists.

9 Secondly, the car. The vehicle was removed from the

10 scene and taken away by lorry, following which it was

11 completely covered so as to preserve any evidence. It

12 was taken away for examination by scientists, by

13 fingerprint experts and was later taken from

14 Northern Ireland to Kent to be further considered by the

15 Defence Evaluation and Research Agency there.

16 Four fingermarks only were found: three were marks

17 by Paul Nelson, the fourth had insufficient detail to

18 allow for any comparison.

19 Now, I don't propose to say anything about the

20 findings or results of the post mortem at this stage.

21 So far as the question of management is concerned,

22 the first comment made by Mr Ayling is that in the early

23 stages of the investigation, the SIO acted decisively in

24 appointing his deputy, M540, to oversee the forensic

25 management of the case, and again, compliments the

 

 

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1 deputy on establishing early contact with FSANI.

2 It appears, according to Mr Ayling, that regular

3 contact was thereafter maintained, both with that

4 organisation and then subsequently with DERA, primarily

5 by telephone.

6 In the outline at 104, it is said that forensic

7 issues would regularly be discussed during MIT

8 conferences between the deputy and those officers

9 undertaking tasks relating to forensics, and informally

10 between members of the senior management team.

11 As far as the guidance goes in appointing or

12 establishing a management team, or indeed a specialist

13 adviser, Mr Ayling acknowledges that that approach was

14 not routinely undertaken as far as he can see within the

15 RUC, and although, he says, experienced SIOs in England

16 and Wales in this period would have at the very least

17 considered setting up both. However, in the outline it

18 is said that first the senior scientist and the deputy

19 had been involved in cases together and that the

20 scientist was regarded as the foremost expert in

21 relation to explosive devices in Northern Ireland and

22 probably, therefore, in the United Kingdom. That is

23 paragraph 101. But because he did not possess expertise

24 across the board, it was accepted or appreciated that

25 there would be further advice required, and another

 

 

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1 experienced scientist, whose background was in biology,

2 was appointed as scientific adviser to the

3 investigation.

4 Now, this may be a matter of terminology but I think

5 I am right in saying that that suggestion, that there

6 was a specific appointment of a scientific adviser, came

7 as something of a surprise to the Ayling team when they

8 saw this outline.

9 Now, looking from management, as it were, to the

10 specific areas, the first is DNA, and here we are

11 looking it at the component parts primarily, the

12 component parts of the device that were examined.

13 Mr Ayling makes the point that forensic examination

14 using DNA analysis is one of the most important aspects

15 in almost all murder investigations and none more so

16 than in circumstances where the perpetrators are

17 suspected terrorists.

18 They may well have committed other terrorist crimes,

19 and as a result there may be details held, but also, of

20 course, they may well be familiar with broader

21 investigative techniques, less sophisticated ones, for

22 obtaining evidence.

23 The point made here in the report is that there was

24 a delay in submitting the recovered parts of the device

25 for DNA examination. There may well be an issue here

 

 

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1 about the state of knowledge and practice in relation to

2 DNA at this stage, because Mr Ayling suggests that in

3 addition to the traditional DNA analysis, well

4 established by this stage, there was by the time of this

5 murder, or shortly thereafter, from April 1999 a more

6 sensitive process known as low copy number DNA analysis

7 available, in England certainly, with the Forensic

8 Science Service.

9 Sir, you will be aware that this particular

10 technique, this approach, has been the subject of some

11 controversy recently in another well-known case.

12 The point that Mr Ayling is making in this part of

13 his report is that traditional DNA analysis was not

14 considered and progressed as a priority by the SIO from

15 the outset, and so the delay in undertaking this

16 analysis of the component parts until, it

17 seems, November 2001 may have led to lost forensic

18 opportunities.

19 However, it appears on the other side of the balance

20 that the MIT did show an awareness of this way of

21 analysing material, at least from 2000, and raises the

22 possibility that the police officers were heavily

23 reliant on the scientists who appear to have advised

24 against DNA testing. In that sense, therefore, it is of

25 course to the credit of the officers that they pursued

 

 

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1 the line of enquiry, particularly following a forensic

2 review, one of many reviews, as I have mentioned, that

3 took place, commissioned by Mr Port and undertaken by

4 specialists from his local, Norfolk, force.

5 Now, so far as this is concerned, in the outline the

6 senior officers say they depended on the scientists for

7 guidance as to the correct processes to be utilised, and

8 that their approach was also informed by recommendations

9 from other bodies and from the various reviews. In the

10 Norfolk Report in August 2001, the specialists

11 recommended that there be low copy number DNA

12 examination and that led to a visit to the Forensic

13 Science Service in Birmingham by the deputy to discuss

14 with scientists the possibility.

15 Mr Ayling's view at the end of all of this is that

16 all the recovered items which were believed to be

17 component parts and could have been handled by the

18 offenders should have been examined using the most

19 up-to-date techniques.

20 However, again, in this case, despite the concerns

21 that I have mentioned, in regard to the management of

22 the matter and the DNA aspects, taking all of the

23 matters into account, his overall conclusion is that the

24 standard of due diligence was met.

25 The next topic under the forensic heading is

 

 

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1 "Similar Devices". Remember what I said to you already

2 that the scientist suggested at a very early stage that

3 there was a connection between this device and others

4 used in earlier attacks.

5 Now, the team developed this line of enquiry in

6 two-ways: first by seeking to establish any forensic

7 links between this device and devices used in previous

8 attacks suspected of being undertaken by Loyalist

9 terrorists; secondly, to identify any intelligence or

10 other non-forensic evidence indicating potential links.

11 Looking at the forensic links first, this all came

12 back, as I say, to the opinion of the officer that there

13 was a link -- the scientific officer, that is -- there

14 was a link to seven previous devices and he compiled

15 a similar devices list, sent it to the team and that

16 gave them, as it were, the comparisons with which to

17 proceed.

18 In the outline it is said that this scientist had

19 intimate professional knowledge of many, or very many, I

20 think it said, terrorist devices over the preceding

21 20 years and that the SIO and his deputy understood

22 there were only a small number of bomb makers within the

23 Loyalist paramilitary groups. Moreover, they said there

24 were significant differences between Republican on the

25 one hand and Loyalist devices, and therefore, the SIO

 

 

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1 instigated a review of other cases involving devices

2 used by Loyalists with similar characteristics.

3 Paragraph 109.

4 Now, as it happened, over the next three years of

5 work, the lists grew to I think a total of 13 incidents

6 before and after the murder encompassing the period of

7 six years between December 1996 to December 2002.

8 Now, in relation to the extra devices, the extra

9 cases, that joined the list, of particular significance

10 is the fact that in June 1999 a device discovered

11 attached to a car outside a prison in 1996 joined the

12 list as one of the sequence of similar devices.

13 However, it is right to say -- and this is recorded

14 in paragraph 4.15.3 of the report -- that Special Branch

15 informed the investigation team that it was believed

16 that this device had in fact been deployed by the INLA

17 in connection with what was described as an in-house

18 matter.

19 Despite this, however, the scientist appears to have

20 continued to maintain that it was similar in ways to the

21 Rosemary Nelson device and indeed that he could justify

22 its place in the list.

23 Now, I have already mentioned that there was in

24 addition involvement of DERA and a further scientist

25 took a role in this question of similar devices, and as

 

 

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1 part of Mr Port's review of all aspects of the

2 investigation following his appointment, he requested

3 such a re-examination in, I think, April 1999. Now,

4 that scientist, the DERA scientist, made a report

5 in September that year and he said that his opinion was

6 that with the exception of one incident, any linking of

7 the devices on the list was, as he put it, tenuous at

8 best, without any further specific information.

9 This leads Mr Ayling to conclude that the particular

10 device in this case was not in fact forensically linked

11 to any other Loyalist device deployed either before or

12 after the murder.

13 Now, let us look next, please, at the issue of

14 investigative links, because what happened was that an

15 action was raised to look at RUC investigations into the

16 first group of so-called similar devices, the seven, if

17 you remember, and to speak to the SIOs in those cases.

18 And the net result of that in short, according to

19 Mr Ayling at 4.21.9, is that no such links were

20 identified.

21 Mr Ayling supports the decision to create a line of

22 enquiry for similar devices and indeed to seek to

23 maximise the forensic science at an early stage, and

24 highlights that it was a critical line of enquiry

25 because in his view it was one of the three primary

 

 

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1 factors which led to the focus on a particular group of

2 suspects and, in due course, to what became Operation

3 George.

4 But as such, his view is that it was or should have

5 been the subject of continual review by the SIO with

6 appropriate policy file entries explaining the rationale

7 for the decisions, if they were decisions to continue or

8 otherwise, which had been taken. This, he believes, was

9 not done to a level justified by the importance of this

10 aspect of the investigation.

11 The result, to put it in layman's terms, therefore,

12 is that the focus appears to have been on identifying,

13 working hard to identify similarities without giving

14 enough weight to what were in fact emerging differences.

15 And he also questions the limits of the research done,

16 namely to devices believed to have originated from

17 Loyalist sources and links it in with this broader point

18 I mentioned earlier of the need continually to be

19 questioning assumptions, to be questioning hypotheses.

20 And the example of the device which turned out, as

21 I say, to be a suspected Republican device at the

22 prison, is one cited here, because in his view whatever

23 the team's initial reaction to such a possibility might

24 have been, given the importance of these issues, there

25 was an obligation to follow the matter through to see

 

 

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1 whether it could properly be discounted or whether it

2 genuinely did cast doubt upon their hypothesis, which

3 involved them focusing upon mid-Ulster LVF terrorists.

4 In that way, therefore, the forensic science and in

5 particular the list of similar devices produced by the

6 scientist feeds into the more general concern expressed

7 by Mr Ayling in relation to the overall approach of the

8 senior management. In relation to the follow-up report

9 by the DERA scientist, Mr Ayling regards that as

10 a missed opportunity because it was an opportunity when

11 these differences, these challenges to the original

12 analysis came through to address the fundamental

13 question: were there any forensic, evidential or

14 intelligence links between the other devices and the one

15 used in the Rosemary Nelson case?

16 It also, in Mr Ayling's view -- and this is

17 paragraph 4.32.7 -- in turn should have raised at least

18 a question concerning the MIT's view as to the likely

19 identity of the bomb maker, because if indeed there were

20 no such similarities, then there was cause also to

21 question that and the reasoning and the hypothesis that

22 had been built upon it.

23 Now, again these are matters dealt with in the

24 outline in a relatively substantial section between

25 paragraphs 100 and 113, pages 27 to 30.

 

 

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1 When it comes to his conclusion on similar devices,

2 Mr Ayling has the following criticism to make. He says

3 first that although this was a complex line of enquiry,

4 it was dealt with in an unstructured manner, which led

5 to apparent confusion within the investigation as to

6 which devices, if any, were considered on an ongoing

7 basis to be linked to the murder. The positive step of

8 obtaining an independent view from the DERA scientist

9 was undermined or indeed defeated by not taking full

10 account of the conclusion arrived at and acting upon it,

11 with the result that there are remaining questions to

12 this day unanswered from this line of enquiry,

13 particularly: (a) the actual status of the similar

14 devices list, particularly given the unique features of

15 the some of the component parts of the Rosemary Nelson

16 device; (b) the impact on particular individuals'

17 suspect status; and (c) the similarities identified by

18 the scientists between the prison and the

19 Rosemary Nelson devices.

20 This, Mr Ayling says in turn, reflects poorly on the

21 supervision and management of this line of enquiry and

22 he regards those failings amounting to a failure to meet

23 the due diligence standard.

24 Now, it is to the component parts which I have just

25 mentioned that I turn next. The parts that were

 

 

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1 recovered, the parts of the device, the parts that were

2 recovered from the scene were examined, as I have said,

3 and they were the remains of a detonator, a plastic

4 mercury tilt switch, an Eveready battery, magnets -- I

5 think there were three in all -- and a small piece of

6 opaque plastic believed to be part of the container that

7 housed the explosive. No trace, as I have said, was

8 found of a timer or indeed of a safety switch,

9 components which are known to have been used in other

10 devices of this kind.

11 With regard to the explosive, both the forensic

12 scientists agreed that it contained between 1 and

13 1.5 pounds of high explosive, that the device had been

14 made and placed to kill or maim the driver, and that it

15 was to be triggered by movement of the car. They also

16 agreed that in all probability the explosive used was

17 a slurry-type commercial explosive used in the quarry,

18 demolition and mining industries.

19 Now, the team's investigations established that the

20 slurry explosive, also known as Powergel, was supplied

21 to only one company in Northern Ireland and this company

22 was known to have a government monopoly in

23 Northern Ireland to supply explosives, and in the view

24 of the murder investigation team, had therefore

25 a foolproof security system. And it would seem, as

 

 

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1 a result of this that they undertook no investigative

2 work to establish if this could have been the source of

3 the explosive used in the Rosemary Nelson murder.

4 Mr Ayling comments that that assumption in relation

5 to this line of the enquiry was unsafe. They undertook

6 a number of extensive enquiries to trace the source of

7 the component parts and I would like to briefly

8 summarise some of them and the results achieved.

9 The detonator was found to be of a type in common

10 usage with about 2 million a year being manufactured,

11 and so any follow-up enquiries in relation to that were

12 pointless. It was not pursued and Mr Ayling fully

13 accepts that decision.

14 The sourcing of the tilt switch, which was blue in

15 colour, was pursued. Three outlets were identified in

16 Northern Ireland and the Republic of Ireland as

17 distributing mercury-encapsulated tilt switches of this

18 type. It is apparent that in the early stages, at any

19 rate, the efforts of the team were concentrated on one

20 in particular but they did undertake investigations with

21 the other two identified outlets and effectively

22 eliminated both of them as being the source. And this

23 is an aspect of their work which Mr Ayling considers to

24 have been effective and that having identified the

25 source, they used appropriate means to investigate

 

 

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1 suspect sales.

2 The battery was of common make, Ever Ready, and it

3 had its serial number scratched off. However, initial

4 enquiries with Eveready made it clear that the number

5 was in fact not a serial number and was also not unique.

6 So there was nothing further to be done there.

7 However, Mr Ayling has pointed out that it appears

8 at any rate that the team did it not apparently consider

9 the potential for matching the instrument that was used

10 to do the scratching to the recovered battery. He also

11 acknowledges that the sourcing of what is likely to have

12 been a commonplace item was going to be very difficult,

13 if not impossible. But he says that the potential to

14 identify debris on an implement that was used to scratch

15 the battery should have been considered, explaining that

16 it would be relevant both during the search and arrest

17 phase to have included among the objectives the recovery

18 of any tools that might have been used.

19 The remains of two magnets were recovered at the

20 scene and the third was recovered from the car. In

21 their analysis of the magnets, it emerged that they

22 were, as I think I have said before, powerful. That was

23 described by Mr Provoost in May 1999 as intriguing, and

24 it was said that they had been identified as similar to

25 ones used at the Harland and Wolff shipyard in Belfast.

 

 

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1 Now, Mr Ayling's view on the magnets is that their

2 intriguing or unusual nature should have led the team

3 into developing different theories as to their use,

4 which may in turn have identified further lines of

5 enquiry or assisted in the development of alternative

6 hypotheses. And he says that he has found no

7 documentation to suggest that this was considered.

8 As I have said, the team confidently traced the

9 source of the magnets to the shipyard and the suggestion

10 was pursued by the team because of what was regarded as

11 a connection here between the location of the shipyard

12 and the Loyalist heartland of east Belfast. That led

13 the team to suggest in their work that this pointed

14 towards a Loyalist procurement of the magnets.

15 That leads in the report to work done by Mr Ayling

16 to evaluate the team's investigation of the sourcing of

17 those magnets. Now, that took a fair amount of work and

18 Mr Ayling comments that there was in fact no forensic

19 basis, no forensic link that confirmed them as

20 definitely emanating from Harland and Wolff. It was

21 established that those or similar magnets were used in

22 the shipyard; 337 were taken possession of for work

23 involving gas cutter rails being attached to metal

24 surfaces. But there was apparently no, or no sufficient

25 audit system in place to enable their movement within

 

 

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1 the yard to be accounted for.

2 It is suggested by Mr Ayling that an effort should

3 have been made to make enquiries with the actual

4 manufacturers of the magnets, who were in fact a company

5 in Japan. And it would appear that that wasn't done.

6 Mr Ayling's suggestion is that that would have

7 identified the number of magnets distributed over any

8 given period and to whom.

9 He says in his report -- and this is

10 paragraph 8.64 -- that he doesn't understand on

11 the material he has seen why these enquiries were not

12 pursued, and assesses at the end of it, as a result,

13 this line of enquiry was left incomplete.

14 In an effort to reinvigorate it, in August 2000,

15 Mr Port appeared on a television programme called

16 Britain's Most Wanted in which he raised the question of

17 the magnets and appealed to the viewers for information

18 and further help in this.

19 It seems that the appeal, which didn't just deal

20 with this issue, only had a limited response and none

21 unfortunately that helped with the question of the

22 magnet.

23 The final bit of the device recovered was, as I have

24 said, a small piece of plastic which may have been part

25 of the container, and it is recorded in May 1999 by

 

 

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1 Mr Provoost, I think, that previous Loyalist devices of

2 this kind had in the main employed a small wooden box,

3 although it is right to say that there were instances of

4 the use of plastic containers in devices in earlier

5 years, 1994 and 1997.

6 So in relation to this piece of plastic, in forensic

7 terms it yielded nothing and wasn't able to assist the

8 matter any further. Taking all of that together, and

9 weighing up all of the work done, Mr Ayling's view

10 overall is that the standard of due diligence was met in

11 relation to sourcing the component parts of the device.

12 Now, the next and separate topic is claim of

13 responsibility and this is an area of the report which

14 has not been issued because it could not be

15 satisfactorily redacted in time. I have mentioned

16 already the telephone call that came through to the BBC

17 newsroom, details were then passed on to the RUC and

18 communicated from RUC headquarters to the major incident

19 room shortly after 9 pm. And as we have already seen

20 from the outline, the senior managers knew that the

21 Red Hand Defenders had made claims of responsibility for

22 attacks they had in fact not carried out.

23 So far as this is concerned, although it wasn't

24 specifically designated as a line of enquiry, the team's

25 view is certainly that it was treated as such, and

 

 

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1 Mr Ayling comments that this claim directly influenced

2 the strategic and tactical direction of the

3 investigation regarding suspects and organisations

4 involved in the murder.

5 The next topic, which again I can deal with only

6 briefly, is anonymous calls. They are a feature of --

7 particularly many protracted murder investigations. Of

8 course, the question of the motive of the caller is

9 itself important. Sometimes the caller rings with

10 a genuine wish to help, but on other occasions his or

11 her motivation may be very different and what emerges

12 may be useless, misleading or indeed malicious.

13 It is again apparent that although not specifically

14 designated as a line of enquiry, it was pursued and

15 treated as such. A number, a significant number, of

16 calls were received at a number of different locations

17 and they were investigated. There were always options

18 available for those who wished to come forward and speak

19 to non-RUC officers. That is an example of the

20 proactive approach taken in some areas of the

21 investigation by Mr Port, acknowledged by Mr Ayling in

22 his report.

23 Now, the next topic is unidentified and stolen

24 vehicles. Again, it is a frequent line of enquiry in

25 cases such as this. Sightings are made by witnesses

 

 

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1 perhaps at the scene, perhaps beforehand, sometimes

2 information emerges in house-to-house enquiries and

3 sometimes, of course, material comes from CCTV footage,

4 to name but some of the ways in which information of

5 this kind can come to the attention of the team.

6 Again, although not formally recorded as a line of

7 enquiry, it was investigated as such and all

8 unidentified vehicles which came into the HOLMES system

9 were considered so as to establish or, on the other

10 hand, eliminate their involvement in the murder. And in

11 the same way, stolen vehicles in Northern Ireland which

12 could have been used in the commission of the crime

13 became an aspect or related aspect of this line of

14 enquiry for the murder investigation team.

15 Now, as a result of the initial investigation,

16 a number of witnesses were seen who provided information

17 about the movement of vehicles in the area. Those

18 sightings, and particularly those assessed as

19 significant by the team, were subjected to further

20 follow-up and detailed enquiries in order to identify

21 the vehicles and then either take them forward as

22 relevant or eliminate them as irrelevant.

23 They used various methods to do that, including

24 media appeals, comparisons by description against

25 existing police, military and DVLA databases. They say

 

 

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1 in their outline, the senior officers, that this area of

2 work was regarded as potentially important lines of

3 enquiry. And in their conclusion of that paragraph:

4 "Hijacked or stolen cars were often used in

5 connection with terrorist incidents in

6 Northern Ireland."

7 Now, one of the significant sightings, identified

8 within the HOLMES account as unidentified vehicle 29,

9 which was a blue Vauxhall Nova, incorporated a number of

10 aspects of the line of the enquiry, and I am going to

11 give just some detail about it for that reason.

12 Mr Ayling takes the view that it was indeed a very

13 significant sighting and that it is not surprising that

14 a great deal of effort was spent on it. There were two

15 unrelated anonymous calls in which suspects were named

16 as being involved in the murder and where specific

17 references were made to the car, the blue Nova, or

18 rather more precisely, to a blue Nova.

19 It first came to the team's attention through

20 a witness who came forward early on to say that on the

21 evening of Sunday, at about 11.20, he was travelling

22 along the Castor Bay Road and as he passed

23 Ashford Grange he saw a blue, old style, as he put it,

24 it, Vauxhall Nova saloon car being driven very slowly in

25 front of him. And the circumstances he described and

 

 

142

 

1 the time of the sighting made this a significant

2 sighting for the team.

3 Three further statements were obtained from him over

4 the next three years to clarify his evidence about the

5 sighting of the blue Nova. In the first, he said that

6 the driver was a heavy-set male wearing a flat cap, and

7 he was 90 per cent sure there was a passenger in the

8 vehicle, also a male, wearing a base ball cap. Some

9 criticism is made in Mr Ayling's report about the

10 failure to obtain information relating to the

11 registration number of the car, and there does indeed

12 appear to be a gap in the statements obtained on this

13 which Mr Ayling, in turn, regards as significant for

14 what I imagine are obvious reasons, not least because of

15 the importance attached to the car by the team.

16 There was a vast amount of work done to identify

17 this car. For instance, Mr Port made an appeal on the

18 Crime Call programme broadcast on 19th September. That

19 appeal led to two anonymous calls, one on the next day,

20 where it was said by an anonymous caller on

21 20th September that the blue Nova had been used to

22 convey the bomb. The caller named two people as being

23 involved in making the bomb and the MIT pursued this

24 matter but found no links between those named persons

25 and the car.

 

 

143

 

1 The second call, made on 25th September, resulted in

2 a message being left on the office answering machine

3 which it appears, due to an oversight, was not in fact

4 discovered by the team for about 15 weeks. The caller

5 implicated a number of persons as being involved in the

6 making and transportation of the bomb and mentioned

7 a Vauxhall car belonging to one of those named. That is

8 Mr Ayling's report at paragraph 8.18.

9 This call was in turn the subject of detailed

10 investigation over about a year, and eventually it was

11 concluded that the car was not linked to the blue

12 Nova seen by the witness; the original witness, that is.

13 Mr Ayling makes some critical comment here in relation

14 to the delay in identifying and retrieving this second

15 anonymous call and the effect that that had on the work

16 which eventually followed to establish its veracity.

17 However, in relation to the work which took place on

18 the calls themselves, Mr Ayling was satisfied that all

19 the investigative opportunities were progressed with due

20 diligence. However, as I have said, he regrets the

21 delay in discovering the message.

22 The further investigative work done here related to

23 a possible link between the car, the blue Nova, and

24 a key suspect. However, that also ended in a nil return

25 when the work done by the team effectively eliminated

 

 

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1 a link between suspect and the car.

2 Now, having traced that history in some detail,

3 again the conclusion that Mr Ayling reaches, having

4 examined all of the material, is that this aspect of the

5 work, although it didn't in fact yield anything

6 productive at the end, was conducted with due diligence.

7 So far as stolen vehicles were concerned, various

8 parameters were set by the team which were later

9 widened. There was again significant investigative work

10 in the area and Mr Ayling again concludes that although

11 it didn't in fact yield anything productive, it was

12 conducted with due diligence.

13 Now, there was yet a further, unidentified vehicles

14 point which was investigated. This came to the notice

15 of the team following a press article by

16 Anne Cadwallader in the Ireland on Sunday newspaper of

17 21st March, just under a week after the murder. It is

18 referred to at 8.28 of the report.

19 In this article, the journalist, who is witness to

20 the Inquiry, claimed that two unnamed people had seen

21 a suspicious vehicle just before midnight on 14th March

22 within 50 yards of Rosemary Nelson's house. It is said

23 that -- in the article, that is -- the witnesses had

24 refused to come forward to the RUC, although they would

25 be willing to give evidence to an independent inquiry.

 

 

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1 It was quickly established by the team that the two

2 witnesses were on their way to their place of work and

3 the significance or potential significance of these

4 sightings was understood.

5 So various strategies were deployed to persuade the

6 witnesses identified in the article, though not named,

7 to give their evidence, to report what they had seen to

8 the team: first, appeals by the media, secondly

9 enquiries with the Pat Finucane Centre, and that is just

10 one of the impacts that I mentioned and will continue to

11 mention in relation to the fact that statements were

12 made to that centre, but not disclosed to the police.

13 Enquiries were made through the families and further

14 information was provided to the investigating team by

15 Rosemary Nelson's sister in relation to that matter,

16 later, in fact, I think in September 2000.

17 The question that then arises for Mr Ayling is what

18 more, considering all the steps that were taken, could

19 have been done to get hold of the evidence, the

20 testimony, of these witnesses. It seems that the name

21 of at least one of them was known at the latest

22 by October 2000, by Mr Port. However, it may be -- it's

23 not absolutely clear -- that the rest of the team didn't

24 make this identification until early in 2004. The net

25 effect of all of this, so far as the first witness is

 

 

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1 concerned, is obviously very considerable delay in

2 identifying him. So far as the second witness is

3 concerned, it seems that his identity was not

4 ascertained at that stage, but when, by the time he was

5 identified, the team decided that there was at that

6 distance in time no point in interviewing him.

7 Now, of course, the quite unknown aspect of all of

8 this is whether, if the witnesses had been correctly

9 identified and approached, they would at any stage have

10 agreed to cooperate with the murder investigation team.

11 And that is a point acknowledged by Mr Ayling in his

12 report and taken into account in his expressing his view

13 that nevertheless the delay in identifying and the

14 decision not to interview was regrettable. And he

15 overall concludes that this aspect of the investigation

16 was not progressed to a satisfactory standard. The

17 sighting by these two witnesses, if correct, was

18 potentially of great importance.

19 Now, sir, that is the final thing to say in relation

20 to the vehicles, and that leads in the report and in

21 this presentation to the question of suspects. That is

22 chapter 9 of the report, and it is one of the chapters

23 that has not been distributed at all to the Full

24 Participants.

25 It is a complex and sensitive area of the

 

 

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1 investigation which Mr Ayling addresses in very

2 considerable detail, and in the course of that chapter

3 it is right to say that he makes criticisms and suggests

4 there have been failures at management level. And it

5 feeds into the point I have made already, the broad

6 criticism here that there was a failure to assess,

7 reassess, continually to question original assumptions,

8 and this is the chapter in which the detail of that

9 topic is set out.

10 So far as the outline is concerned, I have already

11 referred you to paragraph 69. There is further material

12 in it at page 34, paragraph 129:

13 "Mr Port directed the suspect profiles be developed

14 and presented to the senior management team to further

15 this line of enquiry. As has already been mentioned,

16 one of the early areas the interest for the MIT was the

17 LVF in mid-Ulster. During the course the investigation,

18 many individuals became the subject of investigation as

19 a result of evidence or intelligence that had been

20 gleaned, and they remained suspects until eliminated

21 from the investigation. A relatively small number

22 continued to remain suspects for involvement in this

23 murder."

24 So that is all I think it would be right to say on

25 that.

 

 

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1 The next short topic is telephone analysis for the

2 same reason, namely that that part of the report has not

3 been -- it is chapter 11 -- issued. Again, it is dealt

4 with under the heading "Telephones" briefly at

5 paragraph 126 on page 33 of the outline.

6 Now, Mr Ayling's view in short is that this is

7 a very important aspect in most murder investigations.

8 This importance is noted in the outline also that the

9 development of analysis in this area early in the

10 investigation is important and it marks the beginning of

11 a lengthy and resource-intensive process which it is

12 said was sustained throughout the investigation.

13 That, I am afraid, so far as our current stage is

14 concerned, is all I can say to you about telephone

15 analysis. Which takes us to Operation George, which is

16 a massive topic in the report in chapter 10 and is dealt

17 with briefly in the outline at paragraphs 136 and 137 on

18 page 35, but in fact in greater detail in paragraph 5.3

19 of the summary, and that paragraph goes on between

20 page 34 and page 37.

21 So I have mentioned that this is, as it were,

22 a compendious title for what Mr Ayling treats as the

23 third -- one of the three elements of the investigation.

24 And it began in June 1999 and became a large scale,

25 sophisticated, prolonged covert operation deploying, as

 

 

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1 I have said, a wide range of technical and human

2 resources against the MIT's nominated core suspects.

3 And the overall objective of it was to lawfully obtain

4 admissions to the murder that could be converted into

5 admissible evidence.

6 The techniques used included the deployment of

7 listening devices to record and review conversations

8 between suspects and their associates, use of

9 conventional surveillance of suspects or their vehicles

10 and the infiltration of suspects and their associates by

11 the deployment of undercover police officers.

12 It appears to have begun slowly, but it expanded

13 quickly from September 1999, and eventually over

14 70 separately authorised police deployments were

15 activated during the currency of the operation. At its

16 height in 2001, there were 15 simultaneous covert

17 deployments and in Mr Ayling's view, at any rate, the

18 intelligence cell which received the material appeared

19 to be hard pressed to deal with the volume of resulting

20 intelligence product.

21 Now, as I have said, the purpose of this operation

22 at the time of its instigation was to target proactively

23 certain suspects. And it is, according to Mr Ayling,

24 part of the nature of these types of covert

25 investigations that the criminal associates and partners

 

 

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1 of the key suspects would also be the subject of focused

2 attention as the operation progressed.

3 This is Mr Ayling at 10.9.2:

4 "The strategy adopted by the team against the

5 suspects within the operation was to create the

6 environment and then record intelligence and evidence in

7 which they implicated themselves and/or others as having

8 some involvement in the murder of Rosemary Nelson."

9 And the tactics, as far as Mr Ayling can ascertain

10 them, that were deployed here by senior management in

11 the investigation can be summarised at follows: one, to

12 infiltrate the key suspects with undercover officers, to

13 encourage them to talk about and make admissions in

14 relation to the murder; two, to bring the key suspects

15 together in order that they might have a spontaneous

16 conversation about the murder and to record it as

17 primary evidence; three, to use evidence admitted by the

18 suspects of other serious terrorist offences within an

19 interview strategy in order to persuade them to admit

20 their involvement in Rosemary Nelson's murder.

21 As I have said, as it developed, it became a complex

22 and wide-ranging operation and that leads Mr Ayling to

23 make comments about it in a number of different areas,

24 and I am going to deal with just some of them.

25 First of all, he comments upon the absence of any

 

 

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1 written strategy, strategy on the objectives, the key

2 decisions and the priorities as the operation was

3 instigated and developed and later evolved into the

4 massive undertaking that it did. He points out that

5 good practice would have dictated that an intelligence

6 cell should be directed to support the major incident

7 room and given direction as to what do we need to know.

8 What do we need to know within the declared strategy?

9 Here, as the demands on the valuation cell

10 increased, its support of the major incident room

11 diminished and it -- that is the cell, it would

12 appear -- began to set its own priorities which on

13 occasions were different to those of the MIR. And this

14 tension as the operation developed, between, as it were,

15 the original purpose and the headline of the operation,

16 namely the investigation of Rosemary Nelson's murder and

17 what in reality the operation became, is a recurring

18 theme in this chapter of Mr Ayling's report.

19 So far as the basis of the operation is concerned,

20 it seems fair to suggest that it was predicated not only

21 upon the operation, obtaining spontaneous admissions,

22 but also that those admissions would be admissible in

23 evidence. And therefore, it is suggested by Mr Ayling

24 that advice, legal advice, should have been sought at

25 the outset with further reviews as it progressed. And

 

 

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1 there is no evidence that he has found that such advice

2 was sought or obtained.

3 Now, although it does seem that the team sought

4 advice for one or two of the discrete areas of the

5 operation in this notoriously difficult area of the law,

6 they consulted in particular an officer from the

7 National Crime Squad in relation to some aspects and he

8 gave warning about certain pitfalls in relation to a

9 section of the Police and Criminal Evidence Act, for

10 example, although it is not entirely clear what reaction

11 to this was given or what was done about it by the team.

12 The fact is, however, that not withstanding those

13 concerns expressed by Mr Ayling, the reality is that the

14 eventual result of Operation George, not in the

15 Rosemary Nelson case but in the trial of defendants for

16 other offences referred to in the summary at

17 paragraph 5.3.11, did result in convictions for a very

18 large number of serious offences. They are set out at

19 the bottom of page 46 and the top of page 47 of the same

20 document, the summary.

21 So despite these points raised by Mr Ayling, that is

22 in fact what happened after the long trial, that those

23 convictions resulted.

24 These sorts of operations are -- it is a statement

25 of the obvious, perhaps -- very consuming of resources,

 

 

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1 and one of the commendations made by Mr Ayling in this

2 part of his report is of Mr Port's determination in

3 persistently pursuing and securing sufficient resources

4 from other forces throughout the life of the operation.

5 It was a very, very difficult thing to obtain the

6 necessary level of expert assistance, and the skill and

7 commitment shown by Mr Port in doing so is acknowledged

8 by Mr Ayling in his report.

9 Now, the product of this all, of course, was a huge

10 quantity of recorded conversations and there is then

11 a further and enormous task, namely to listen to and

12 note those parts of the product which are of

13 significance.

14 Mr Ayling points out that it is important to

15 document the specific instructions given to those

16 officers who have been required to do the listening and

17 who are also required to produce summaries or

18 transcripts. And again, he says that clear policy and

19 guidelines in this area are the hallmarks of

20 a well-managed operation, but no such documentation has

21 been discovered in this case. It appears that there was

22 a policy or guidance document, but it may have been

23 destroyed after the live phase of the operation, thus

24 making it difficult, in fact, making it impossible, for

25 Mr Ayling to form a view about it.

 

 

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1 So far as the purpose of all this is concerned,

2 Mr Ayling's view based on the material is that it

3 certainly began as an operation launched with the

4 intention of gathering evidence associated with

5 Rosemary Nelson's murder.

6 In fact, no relevant evidence or intelligence was

7 gathered relating to her, as opposed to the substantial

8 amount of material which was gathered about a whole

9 range of other serious crimes.

10 That, in Mr Ayling's view, left the team with some

11 difficult decisions in relation to their original

12 objectives and also with the requirements to progress

13 what appeared to be going well and to be productive in

14 relation to the gathering of evidence on other matters.

15 This came into sharp focus, he suggests, following

16 a management decision in October 1999 to pursue with

17 vigour evidence to support "directing acts of

18 terrorism". However, what he says about this is that

19 the team should reasonably have foreseen that once the

20 work had started, it would have necessitated seeking

21 corroboration for every terrorist-related matter

22 mentioned in order to produce evidence for those

23 wide-ranging offences. And this, in his opinion,

24 emphasised what was in fact a change of focus. It may

25 at first have happened incrementally, but he suggests

 

 

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1 that there came a moment when it was clear that the

2 focus had shifted away from Rosemary Nelson into these

3 wider matters concerned with terrorist activity in

4 mid-Ulster.

5 At that point, it is his view, at that point,

6 Mr Port should have identified that that itself would

7 have had a significant impact on the available resources

8 within the major incident room. And he illustrates this

9 by looking at statistics in terms of the product coming

10 into the room, as recorded in actions on the HOLMES

11 system -- this is paragraph 2.12.11 of his report. And

12 he compares what he calls Operation George matters,

13 actions, and Rosemary Nelson murder actions at various

14 stages. It is page 64 of the report.

15 Between January and March 2000, the Operation George

16 total is 14, the Rosemary Nelson total is 823.

17 Between January and March 2001, the respective totals

18 are Operation George, 440; Rosemary Nelson murder 343.

19 Between January and March 2002, Operation George, 472;

20 Rosemary Nelson murder, 51. And his point here is that

21 the balance has by this stage, January to March 2002,

22 shifted in favour of Operation George and against the

23 Rosemary Nelson murder.

24 He points out that although Operation George was

25 growing in scope and relative significance, there were

 

 

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1 no additional staff provided within the major incident

2 room to deal with the significant increase in workload,

3 and suggests various options which might have been

4 pursued by Mr Port to seek additional support.

5 Now, the final aspect of this is the question of the

6 operational tactics and management of Operation George

7 itself. And sir, this may, although I haven't got as

8 far as I had hoped to, be a convenient moment. I will

9 finish this --

10 THE CHAIRMAN: Thank you, Mr Phillips. At about what time

11 do you expect to finish tomorrow?

12 MR PHILLIPS: I hope by half past 11 tomorrow morning.

13 THE CHAIRMAN: Thank you. When Mr Phillips completes his

14 opening at about half past 11 tomorrow morning, the time

15 comes when those Full Participants who wish to do an

16 opening response, can do so. What I propose to do is to

17 ask each counsel for each Full Participant if he wishes

18 to make an opening response, and I will begin, because

19 you are on my left, with you, Mr Arthur Harvey. Do you

20 wish to make an opening response?

21 MR HARVEY: I do.

22 THE CHAIRMAN: Mr O'Hare, do you wish to make an opening

23 response, or Mr Fee to make one, tomorrow?

24 MR O'HARE: Yes, sir, we do.

25 THE CHAIRMAN: Mr Egan?

 

 

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1 MR EGAN: Yes, please, sir.

2 THE CHAIRMAN: And you, Mr Donaldson?

3 MR DONALDSON: Yes, sir.

4 THE CHAIRMAN: Is there anybody who wants to make a response

5 for the NIO? Mr Conn, or your counsel?

6 MR CONN: No, thank you.

7 THE CHAIRMAN: I don't see anyone from the Ministry of

8 Defence or from the Security Service, so we shall assume

9 they don't want to make an opening response.

10 Now, the panel thinks that the logical way in which

11 the opening responses should be made -- and if anyone

12 has any comments to the contrary -- would be to begin

13 with you, Mr Harvey, on behalf of Mr Paul Nelson,

14 followed by Mr Fee on behalf of Mrs Magee and her

15 family. Then I think Mr Donaldson or Mr Egan. I think

16 logically it should be you, Mr Donaldson, first.

17 MR DONALDSON: We don't mind, sir. Yes, I think that

18 Mr Egan would be quite happy with that.

19 MR EGAN: I would agree.

20 THE CHAIRMAN: And Mr Egan, who acts for the murder

21 investigation team, would come next.

22 MR EGAN: Yes, thank you.

23 THE CHAIRMAN: Then finally, you for the -- if anybody wants

24 to come after that -- for the Northern Ireland Office.

25 What about the PSNI? That is you, Mr Donaldson.

 

 

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1 MR DONALDSON: Yes, sir.

2 THE CHAIRMAN: So the order will be: Mr Harvey, Mr Fee,

3 Mr Donaldson, Mr Egan and that will be it.

4 Now, do you all expect to complete your responses

5 tomorrow if you begin at 11.30 or quarter to 12, or is

6 that asking too much?

7 MR DONALDSON: I think it is impossible to say, sir, because

8 it depends on how long each person takes.

9 THE CHAIRMAN: We will see how we do and possibly we will be

10 hearing you tomorrow, Mr Donaldson. If we do, we look

11 forward to it.

12 MR DONALDSON: Thank you, sir.

13 THE CHAIRMAN: And we will adjourn until 10.15 tomorrow,

14 and, Mr Phillips, we look forward to hearing your

15 concluding remarks.

16 (4.50 pm)

17 (The Inquiry adjourned until 10.15 am the following day)

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