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Full Hearings

Hearing: 17th April 2008, day 3

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ROSEMARY NELSON

PUBLIC INQUIRY

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


on Thursday, 17th April 2008
commencing at 10.15 am


Day 3


1 Thursday, 17th April 2008

2 (10.15 am)

3 Opening submissions by MR PHILLIPS (continued)

4 THE CHAIRMAN: Yes, Mr Phillips.

5 MR PHILLIPS: Sir, I explained on Tuesday that our List of

6 Issues required the Inquiry to investigate not only what

7 complaints were made by clients of Rosemary Nelson

8 concerning comments made about her to them by police

9 officers when the client was detained, but also to

10 consider the procedures or the system for complaints

11 itself, and that was issues 24 and 25.

12 As I have also explained, section 2 of part 1 of the

13 bundle contains the material on these issues. There are

14 33 files in all. And of course, I don't want to

15 lengthen what is already, I am afraid, going to be

16 a lengthy opening when I don't need to, but this is an

17 area of our work in which I suggest that time spent

18 trying to master the basic material now is likely to

19 save time later when the witnesses, who are concerned

20 with the complaints, give their evidence.

21 Sir, I am therefore going to trace the history of

22 the complaints on which we have focused our attention so

23 that the nature of the complaint and its procedural

24 history is explained.

25 The fact is, however, that even that approach will

3


1 necessarily be something of a major undertaking, because

2 the history of some of the complaints, as I mentioned to

3 you by way of fair warning on Tuesday, is very long and

4 very convoluted indeed.

5 Before turning to the complaints themselves, sir, I

6 am going to show you the material which sets out the

7 complaints system itself.

8 Now, so far as the framework of a statutory

9 instrument and regulation made pursuant to it is

10 concerned, there are a number of instruments and sets of

11 regulations in our files, and the three files which I

12 will be referring to during this part of what I intend

13 to say are 231, 232 and 233.

14 The starting point, the statutory instrument, is the

15 Police (Northern Ireland) Order 1987, and then

16 regulations pursuant to that, the RUC (Complaints

17 et cetera) Regulations 1988, the RUC (Complaints)

18 (Informal) Resolution Regulations 1988, the RUC

19 (Discipline and Disciplinary) Appeals Regulations 1988,

20 and the RUC (Complaints et cetera) Regulations 1990,

21 which amended one of the regulations under the

22 (complaints et cetera) Regulations.

23 In due course what I will do is to take you to the

24 relevant parts of those regulations and that statutory

25 instrument relevant not only, of course, to the question

4


1 of the overall framework, but also I will highlight for

2 you those parts of the framework which are of particular

3 interest when we come to consider the complaints

4 themselves.

5 Now, in addition to that, we have some guidance

6 material and this is guidance both from the RUC and from

7 the NIO. There are a number of manuals or books of

8 guidance in 231 and 232 which were written, one

9 imagines, in order to assist those who had the

10 responsibility of conducting the investigations as to

11 how properly to go about their work.

12 Now, sir, so far as the framework that we are

13 concerned goes, in February 1988 a new system for the

14 RUC was established by the Police (Northern Ireland)

15 Order 1987. There were subsequent amendments in 1995,

16 but so far as we are concerned, it is the order that

17 I have mentioned and the regulations made pursuant to it

18 which is relevant to these complaints.

19 Now, the starting point so far as the statutory

20 instrument is concerned, and indeed the entire

21 framework, can be seen if we look first, please, at

22 RNI-231-292. (Displayed)

23 Sir, that is the opening page of the statutory

24 instrument and can I draw your attention immediately to

25 Article 3 of the instrument, which is headed "The

5


1 Independent Commission for Police Complaints for

2 Northern Ireland", for this instrument established the

3 ICPC, and that, as I will explain, was the body which

4 supervised complaints and, therefore, which dealt with

5 the investigating officers from the RUC, whose primary

6 responsibility it was to take evidence and to get to the

7 bottom of the allegations made.

8 Sir, the first aspect of the order I would like to

9 show you is at RNI-231-294. (Displayed)

10 There in Article 2 at subsection (2) you will see

11 the first of a number of definitions, and that is

12 relevant to us because it shows in the two types of case

13 the senior officer first and, as it were, everybody

14 else, which is the appropriate authority. It could

15 either be the police authority for Northern Ireland or

16 the Chief Constable.

17 Now, the complaints with which we are concerned,

18 fall under B. In other words, we are not concerned here

19 with officers of senior officer rank; we will see in due

20 course that that is defined by reference to the rank of

21 chief superintendent. So none of the complaints with

22 which we are concerned fall into category (a).

23 Sir, can I just make that good. Can we have

24 RNI-232-071, please. (Displayed) This is part of the

25 guidance material that I explained, and if we look at

6


1 the paragraph with the bold Article 6, this is the

2 commentary upon the order that we are looking at. It

3 shows that the relevant rank here is chief

4 superintendent. That is the cut-off.

5 As I say, in our case we are looking at the lower

6 ranks and, therefore, the Chief Constable is the

7 appropriate authority. And we will see, as we go

8 through, what is required of the appropriate authority

9 in relation to complaints.

10 Now, in practice, in fact, the authority of the

11 Chief Constable was delegated to the Deputy

12 Chief Constable in matters of this kind, and we can see

13 that at RNI-232-008, right at the top of the page, the

14 functions and duties -- actually, could we start from

15 RNI-232-007 because it makes more sense of it.

16 "Delegation of functions by Chief Constable", and

17 this is part of the regulations made under the order,

18 and you will see on the page we started with -- which is

19 RNI-232-008 again, please, at the top -- that in fact

20 the Deputy Chief Constable was delegated these matters

21 as permitted under the regulations.

22 Now, sir, so far as the Independent Commission is

23 concerned, can we look, please, at RNI-231-294.

24 (Displayed) There, in Article 3, the Commission is

25 established. It replaced a body known as the Police

7


1 Complaints Board and as is set out in "Further

2 Provisions of the Order and Regulations", the Commission

3 was responsible for supervising the police

4 investigations into complaints and also for monitoring

5 the effectiveness of the informal resolution procedures

6 I will refer to in a minute.

7 It was also required to report to the Secretary of

8 State at his or her request on more general matters,

9 matters relating to its functions, but it could also

10 issue its own report on exceptional matters and it made

11 annual reports to which there is some reference in the

12 evidence, and it kept under review the working of the

13 procedures themselves.

14 If we look at Article 17, which is at

15 page RNI-231-305, we will see some of that set out at

16 17(1) and 17(2).

17 Sir, the Commission, at the request of the Secretary

18 of State, report to him. Then, under subsection (2):

19 "The Commission may make a report ... on those

20 matters ..."

21 Now, sir, one of the important things to flag up

22 right at the beginning about the complaints system is

23 that the standard of proof in disciplinary cases was the

24 criminal standard, and we will see when we come to look

25 at the report of Dr Hayes that this was a point on which

8


1 he focused on good deal of his attention. It is also

2 a feature of the system that there were often parallel

3 investigations going on, criminal investigation and

4 a disciplinary investigation, and we will see in

5 a number of cases, including, for example, those which

6 were being dealt with at that stage by

7 Commander Mulvihill and his team, that, as it were,

8 parallel interviews would take place. There would be

9 a criminal interview, as it were, and a disciplinary

10 interview and that is going to be a feature of the

11 material we examine.

12 Now, how was a complaint to be initiated? If we

13 look, please, at RNI-231-294 in our definitions, the

14 beginning of the statutory instrument, the definition of

15 "complaint" means:

16 "Any complaint about the conduct of a member of the

17 police force which is submitted by or on behalf of

18 a member of the public."

19 A complaint could be lodged direct with the

20 Commission, but the Commission could not act until the

21 complaint was referred to the Chief Constable.

22 Where the Chief Constable was the appropriate

23 authority, he was required to make a record of it, of

24 the complaint, that is, as soon as possible after he had

25 received it. And that we can see in Article 5 of the

9


1 order at RNI-231-295 of the same bundle, RNI-231.

2 Section 5(1):

3 "If the Chief Constable determines that he is the

4 appropriate authority in relation to a member of the

5 police force about whose conduct a complaint has been

6 made and is not a senior officer, he shall record it."

7 What was he required to do at that stage? The

8 relevant Article is 4, slightly higher up the page:

9 "Where a complaint is submitted to the

10 Chief Constable, it shall be his duty to take any steps

11 that appear to him to be desirable for the purpose of

12 obtaining or preserving evidence relating to the conduct

13 complained of."

14 And you will see at 2 it fell also to the

15 Chief Constable to determine another threshold question:

16 which was, or whether he was, the appropriate authority.

17 In other words, does it remain with him or does it go to

18 the police authority for Northern Ireland because it

19 involves a senior officer.

20 Now, I mentioned before the system of informal

21 resolution, and we can see that on the same page at

22 5(2). If you remember, 5(1) was the article dealing

23 with recording:

24 "After doing the recording, he shall consider

25 whether the complaint is suitable for informal

10


1 resolution and may appoint a member of the police to

2 assist him."

3 Now, if he did think it was so suitable, he was

4 required to seek to resolve it informally. Could we look at

5 the very bottom of this page, 5(4)..."and could appoint

6 a member of the police force to do that on his behalf."

7 Now, sir, I have shown you the informal procedure

8 and its framework. It did not apply, did not apply, to

9 any of the complaints with which we are concerned. So

10 we are concerned, therefore, with formal investigation

11 and we have, therefore, reached the point where these

12 initial questions set out in Articles 4 and 5, as I have

13 shown you, have been answered and the matter is to be

14 taken forward formally. And the first provision which

15 applies at that stage is 5(3). Can we have that up,

16 please, on the same page:

17 "If it appears to the Chief Constable the complaint

18 is not suitable for informal resolution, he shall

19 appoint a member of the police force or a member of

20 another United Kingdom police force to investigate it

21 formally."

22 So that is, you may think, an interesting provision

23 right at the outset. It was not required to be a member

24 of the RUC; it could be, in any case of this kind,

25 a member of another United Kingdom police force. And as

11


1 we know, in the latter stages of some of these

2 complaints, that is indeed what happened: the matter was

3 taken out of the hands of the RUC and the ICPC and the

4 task of a further review, a further investigation, was

5 given to Commander Mulvihill and his junior officers.

6 Now, could we just turn over the page, please, to

7 RNI-231-296. (Displayed) You will see there the

8 provisions which set out the matters that we have been

9 looking at; in other words, they deal with the question

10 of a formal investigation. And at 7, there are

11 provisions which stipulated the rank which was required

12 in relation to investigation. In other words, (a) is

13 the cases we are not concerned with, but (b) ensures

14 that the investigating officer is at least two ranks

15 above the rank of the member against whom the complaint

16 was being made.

17 Now, I have set out the provisions in relation to

18 informal resolution. There were other provisions which

19 allowed the procedure to be curtailed and I would like

20 to show you those next.

21 The first is in the case of withdrawal and that is

22 at RNI-232-008. (Displayed) So at 16, reference in the

23 first line of 1 to the order we have been looking at:

24 "Those provisions shall not apply in respect of the

25 complaint if the appropriate authority receives from the

12


1 complainant notification in writing signed by him or by

2 his solicitor or other authorised agent on his behalf

3 ..."

4 And there you will see (a) and (b). Then the

5 consequential provisions in 2 to ensure that everybody

6 involved in the system, the Chief Constable or

7 appropriate authority and the Commission, is made aware

8 of what was going on.

9 So far as we are concerned, of more direct

10 relevance, however, is another way in which the

11 complaint could be brought to an end, and this is at 17

12 in these regulations. So here we are dealing with

13 a certain category of complaints and you will see set

14 out there complaints which are anonymous, repetitious or

15 incapable of investigation:

16 "Where the appropriate authority is of the opinion

17 ..."

18 Then the various categories are set out. And note,

19 please, that one of them is, in the second line of (a),

20 that:

21 "It is not reasonably practicable to complete the

22 investigation of a complaint."

23 And:

24 "That in all the circumstances, the requirements of

25 part 2 of the order, to the extent they have not already

13


1 been satisfied, should be dispensed with."

2 So that is not withdrawal but, as it were,

3 dispensation. And if in that case the appropriate

4 authority requests of the Commission a dispensation,

5 2 shows what form the request should take. And at 3, if

6 we turn the page, please, to RNI-232-009, 17(3):

7 "If, after considering a request under this

8 regulation, the Commission shares the opinion of the

9 appropriate authority, it may dispense with the

10 requirements mentioned in paragraph 1 but it shall not

11 reject such a request except after consultation with the

12 appropriate authority."

13 Then again, a provision setting out what was

14 required, if that was the case, of the Commission to

15 complete the formalities.

16 Now, we will see on a number of occasions in the

17 files, requests being made for dispensation, and what

18 this, I hope, shows clearly, is that it was for the

19 authority, in our case the Chief Constable, the police,

20 to, as it were, apply to make the request and in the end

21 for the Commission to determine whether or not it should

22 be granted.

23 Now, by way of gloss to that, at a later stage we

24 will see that the category of complaints which could be

25 dispensed with, ie the anonymous, repetitious or those

14


1 incapable of investigation that we have just seen, was

2 extended -- and this is recorded in Dr Hayes' report at

3 paragraph 16.1 -- to include complaints that were

4 vexatious, oppressive or otherwise an abuse of the

5 complaints procedure. And that provision, which came in

6 with the 1990 RUC (Complaints et cetera) Amendment

7 Regulations, may, who knows, reflect a view taken about

8 what was in fact happening in the system.

9 In other words, an attempt was being made to ensure

10 that where complaints which had no merit and which were

11 being put through for other and for improper purposes,

12 that the complaints system could deal with them and deal

13 with them appropriately without further expenditure of

14 time or of resources.

15 Now, the dispensation that we have just been looking

16 at could be sought at any time in the course of the

17 investigation. We will see the provisions which

18 interpret the three categories, the three original

19 categories I mentioned, at RNI-232-010. (Displayed)

20 So this seeks to define or perhaps to describe the

21 sorts of cases where dispensation would be appropriate.

22 And you will see paragraph 2, dealing anonymous

23 complaints, at paragraph 3, dealing with repetitious

24 complaints, and then at paragraph 4 this detailed

25 provision -- can we see that, please? Thank you:

15


1 "For the purposes of regulation 17, it shall not be

2 reasonably practicable to complete the investigation of

3 a complaint if, and only if, in the opinion of the

4 appropriate authority or, as the case may be, of the

5 Commission either ..."

6 Then there is a provision, not of direct relevance

7 to our cases, concerned with the inability to

8 communicate, but (b) is relevant:

9 "It is not reasonably practicable to complete

10 a satisfactory investigation in consequence of:

11 "(i) a refusal or failure on the part of the

12 complainant to make a statement or to afford other

13 reasonable assistance for the purposes of the

14 investigation;

15 "(ii) a refusal or failure on the part of an injured

16 person other than the complainant to support the

17 claimant evidenced either by a statement in writing

18 signed by him or by his solicitor, or other authorised

19 agent on his behalf, to the effect that he does not

20 support it, or by a refusal or failure on his part ..."

21 Can we just turn the page, please. And the final

22 one is lapse of time; in other words, the matter has

23 become stale.

24 Now, sir, in the detailed analysis of the

25 documentation we will see that there were number of

16


1 cases where the point was taken that it was not possible

2 to continue or complete the investigation, the test

3 being that it wasn't reasonably practicable because of,

4 in particular, a refusal or failure on the part of the

5 complainant to make a statement or afford other

6 reasonable assistance for the purposes of the

7 investigation.

8 Now, dealing with the relationship between the

9 Chief Constable and the ICPC in complaints. It was

10 a requirement that all complaints which were subject to

11 formal investigation be referred to the ICPC by the

12 appropriate authority. And the relevant provision

13 there, sir, is Article 7(1) of the order, which is at

14 RNI-231-297 (displayed):

15 "Where the appropriate authority decides under

16 Article 5(3) or (5) or Article 6(3) to appoint a member

17 of the police force or a member of another

18 United Kingdom police force to investigate a complaint,

19 the appropriate authority shall refer that complaint to

20 the Commission."

21 Then a question of timing. Sub 2 sets the time

22 limit for referral and I don't think we need to look at

23 that now.

24 Now, under this same order, if you look at 8(1),

25 please, if we could have that up on the screen, there

17


1 was provision for the Commission to receive complaints

2 on, as it were, a discretionary basis; in other words,

3 without a complaint having itself been made. So matters

4 could be referred by the Chief Constable to the

5 Commission where there was, as you look at (b), no

6 complaint. And the circumstances where it appears to

7 the appropriate authority to indicate that a member of

8 the police force may have committed a criminal offence

9 or an offence against discipline, and then the important

10 part, which has just come up on the screen:

11 "It is not the subject of a complaint."

12 But also:

13 "If it appears to the appropriate authority that it

14 ought to be referred by reason (i) of its gravity or

15 (ii) of exceptional circumstances."

16 And then if you look further down at subsection (2),

17 other matters could be referred to the Commission by

18 either the Secretary of State or the police authority.

19 And the provisions are rather similar under (a) and (b)

20 to those we have seen under subsection (1), but the

21 concluding phrase is as follows:

22 "If it appears to the Secretary of State or the

23 authority that it is desirable in the public interest

24 that the Commission should supervise the investigation

25 of the matter."

18


1 Now, if we look at the relevant regulation and at

2 RNI-232-005, we will see what obligations, primary

3 obligations, the authority, the Chief Constable, owed to

4 the Commission. And this is at regulation 6, "Supply of

5 Information":

6 "The appropriate authority shall supply the

7 Commission with such information as it may reasonably

8 require relating to a complaint or matter referred to it

9 under Article 7 or 8 of the order, whether or not such

10 complaint or matter is the subject of an investigation

11 supervised by the Commission for the purpose of enabling

12 the Commission to fulfil its functions under the said

13 order."

14 Now, that Article itself raises another aspect of

15 the system, which is the question of supervised

16 complaints. Sir, the relevant part of the statutory

17 instrument is Article 9, which we can see at

18 RNI-231-297. Right at the very bottom:

19 "The Commission shall supervise the investigation

20 ..."

21 Then turning over, please, to 298:

22 "... (a) of any complaint alleging that the conduct

23 of a member of the police force resulted in the death of

24 or serious injury to some other person;

25 "(b) of any other description of complaint specified

19


1 for the purposes of this Article in regulations made by

2 the Secretary of State."

3 Then a definition is given in turn of the expression

4 "serious injury".

5 Then can we look down the page, please. There are

6 two further provisions about supervision. First,

7 a mandatory provision. The Commission shall supervise

8 the investigation of any matter referred to it by the

9 Secretary of State or the police authority, and we have

10 seen reference to the power to do that. Then:

11 "The Commission may supervise the investigation of

12 any complaint, the investigation of which it is not

13 required to supervise, and of any other matter referred

14 to it under Article 8 if the Commission decides that it

15 is desirable in the public interest that it should

16 supervise that investigation."

17 Now, so far as the mechanism of that is concerned,

18 if we look at the relevant regulation at RNI-232-005

19 again (displayed), regulation 5 this time, the decision

20 being a decision for the Commission. If they did decide

21 to intervene in the sense of to supervise an

22 investigation, they were required to notify their

23 decision to the Chief Constable in a set period: no

24 later than the end of the seventh day after the day on

25 which the complaint or matter in question is received by

20


1 the Commission.

2 Again, in the documents which we will look at in

3 a minute, you will see on a number of cases the

4 Commission, through its officers, informing, in writing,

5 the RUC that they intended to supervise. But then in

6 other cases a decision would be taken the other way, and

7 they have one or two examples of that as well in the

8 bundle.

9 Now, where supervision took place, what were the

10 powers of the Commission? This is where we are entering

11 territory that, in relation to some of the complaints,

12 became highly contentious at the stage when the ICPC, in

13 relation to some of the complaints in mid-1998,

14 indicated -- and we will see the material in detail --

15 that they were not content with the way the matter had

16 been investigated, and that led eventually to the

17 appointment of Commander Mulvihill.

18 But this is the starting point. Can we look at 8,

19 please:

20 "Without prejudice to the Commission's powers in

21 relation to the appointment of an investigating officer

22 ..."

23 And we will look at them in a moment. But subject

24 to paragraph 2 -- that is paragraph 2 of this

25 regulation:

21


1 "... the Commission may, where it undertakes the

2 supervision of an investigation or a complaint or other

3 matter referred to it under Article 7 or 8 of the said

4 order, issue directions imposing such additional

5 reasonable requirements as to the conduct of the

6 investigation as appear to it to be necessary."

7 Now, in practice, sir, what happened was this: the

8 ICPC would appoint one of its own members to take

9 personal responsibility for the supervision of

10 a particular investigation and to keep in touch with the

11 investigating officer throughout the course of the

12 investigation. Before making any requirement affecting

13 the resources to be employed in the investigation, the

14 Commission was required to seek the views of the

15 Chief Constable, and indeed to have regard to any views

16 he might express.

17 Sir, if we turn the page, please, to RNI-232-006, at

18 the very top of the page, regulation 8(2):

19 "The Commission shall not, under paragraph 1 above,

20 impose any requirement relating to the resources to be

21 made available by the Chief Constable for the purposes

22 of an investigation without first consulting him and

23 having regard to any representations he may make."

24 Now, if we turn back, please, to RNI-232-005, and

25 look at regulation 7, this is a matter concerning the

22


1 end of investigations, investigations of a criminal

2 kind, in which the matter would end up with the

3 Director of Public Prosecutions. And at this stage

4 also, the investigating officer is required, you will

5 see, to keep the Commission informed as to the nature

6 and eventual outcome of any such consultation.

7 I mentioned earlier the provision permitting the

8 Commission to have a role in the selection of the

9 investigating officer, and we can see that at

10 RNI-231-298. (Displayed)

11 Halfway down the page, this is Article 9(5):

12 "Where an investigation is to be supervised by the

13 Commission, it may require that no appointment of

14 a person to conduct the investigation shall be made

15 unless the Commission has given notice to the

16 appropriate authority that approves the person whom that

17 authority proposes to appoint."

18 Then a provision giving them a role also where the

19 appointment has already been made but the Commission is

20 not satisfied with the investigating officer.

21 Now, so far as a non-supervised investigation was

22 concerned, the investigating officer, once he had

23 completed his work, or indeed once he had taken it as

24 far as he reasonably could, was required to submit

25 a report to the Chief Constable. However, if the

23


1 investigation was supervised, ie supervised by a member

2 of the Commission, the report needed to be submitted to

3 the Commission. And we will see that just over the page

4 at RNI-231-299 and at Article 9(7)(a):

5 "At the end of an investigation which the Commission

6 has supervised, the person appointed to conduct the

7 investigation:

8 "(a) shall submit a report on the investigation to

9 the Commission; and

10 "(b) shall send a copy to the appropriate

11 authority."

12 Now, because, as I have said, the way in which the

13 discipline and complaints structure worked was to allow

14 a criminal and a disciplinary investigation to proceed

15 at the same time, it follows of course that the relevant

16 disciplinary authority -- in our case the

17 Chief Constable -- was required to consider and deal

18 with both aspects.

19 Now, if the investigation was unsupervised, the

20 officer would submit his report to the Chief Constable

21 and in the report make a recommendation as to whether or

22 not the matter should be referred to the

23 Director of Public Prosecutions, and we can see that at

24 RNI-231-296 of file RNI-231; or rather we would do if it

25 was the right reference, which I am afraid it isn't.

24


1 Can we come back to that in a minute?

2 It fell to the Chief Constable to decide at that

3 point whether or not a criminal offence might have been

4 committed and, if so, whether the offence was such that

5 a member of the RUC should be charged with it.

6 Now, if those criteria were met, he was required to

7 send a copy of the report to the director, and we will

8 see -- at least, I hope we will -- on page 300 of the

9 same file, RNI-231-300. Yes. At 10(4), we see that it

10 is for the Chief Constable to determine that the report

11 does indicate that:

12 "... a criminal offence may have been committed by

13 a member of the police force; and

14 (b) considers that the events indicated is such that

15 the officer ought to be charged with it, he shall send

16 a copy of the report to the Director of Public

17 Prosecutions."

18 If we move back up the page, please, you will see at

19 subsection (3) what the duty of the Chief Constable,

20 when receiving the report, is. And obviously, it is to

21 decide -- if you go back to the page, please -- to

22 determine under (i) and (ii) whether either of those

23 points is made out.

24 Now, if the Chief Constable decided that a criminal

25 offence was indicated but proceedings were not warranted

25


1 or, of course, if a criminal offence was not made out in

2 his view, then the matter of discipline arose, and

3 indeed the provisions allowed the Chief Constable

4 a discretion at this point to consider whether

5 a criminal offence was minor enough to allow it to be

6 dealt with under the disciplinary side, rather than

7 treat it as a criminal offence.

8 He was also required to send the Commission the

9 officer's report, the investigating officer's report,

10 and a memorandum setting out his opinion of the

11 complaint and as to whether disciplinary charges should

12 be preferred. And we can see all that on this page at

13 10(5) following. You will see at 10(5) the reference to

14 the memorandum and it is to record whether he has

15 preferred disciplinary charges in respect of the conduct

16 subject to the investigation and, if not, his reasons

17 for not doing so.

18 Then the further provisions that I have mentioned.

19 If the report does indicate a criminal offence may have

20 been committed and considers that that offence is not

21 such that the officer ought to be charged with it, then

22 again, a memorandum is to be sent signed by him, stating

23 whether he proposes to prefer disciplinary charges in

24 respect of the conduct which was the subject of the

25 investigation, and again, if not, his reasons for

26


1 doing so.

2 So that deals with the unsupervised complaints. The

3 supervised complaints, the investigating officer was

4 required to submit his report to the Commission and to

5 give a copy to the Chief Constable, and that is at

6 page 299 of the same file, RNI-231-299, Article 9(7).

7 If you look at the top of the page:

8 "At the end of an investigation which the Commission

9 has supervised, the person appointed to conduct the

10 investigation:

11 "(a) shall submit a report on the investigation to

12 the Commission; and

13 "(b) shall send a copy to the appropriate

14 authority."

15 Now, at that point it fell to the ICPC to prepare

16 a statement for issue to the Chief Constable, to the

17 complainant, and indeed to the police officer whose

18 conduct had been investigated. And we will see that

19 later in the regulations at 8 and 9.

20 Now, sir, this is also an important provision for

21 us:

22 "Considering a report submitted to it under

23 paragraph 7, the Commission shall submit to the

24 appropriate authority a statement:

25 "(a) whether the investigation was or was not

27


1 conducted to the Commission's satisfaction;

2 "(b) specifying any respect in which it was not so

3 subjected; and

4 "(c) dealing with any such other matters as the

5 Secretary of State may by regulations provide."

6 You will see, just briefly I will mention the

7 submission -- sending a copy rather to the police

8 officer against whom the complaint had been made.

9 However, returning to 8(a) and (b), this is again

10 a matter which became significant in relation to some of

11 the Rosemary Nelson complaints, as you will recall,

12 because for the first time -- this is in 1998 -- since

13 the system was set up in, I think, 1988, the Commission

14 indicated that it was not satisfied with the

15 investigation which had taken place in relation to those

16 complaints and was minded to, and indeed intending to,

17 issue a statement recording that.

18 And it was that indication from the Commission which

19 triggered a reaction not only at the very highest level

20 of the RUC involving the Chief Constable himself, but

21 also within the NIO, because it was appreciated, as the

22 witnesses explain, the civil servant witnesses, that

23 this was a matter of major importance and of political

24 significance. And when we look at the documents, we

25 will see that at that point there is a great deal of

28


1 rushing around, meetings taking place, briefing notes

2 being prepared, memoranda being exchanged as the

3 potential consequences and ramifications of all of that

4 are grappled with and managed.

5 Now, sir, so far as the content of the statement is

6 concerned, there is further material in the regulations

7 at RNI-232-006. (Displayed)

8 At 10(1) there, (a) and (b), you will see what the

9 statement may, in addition to the matters we have

10 already looked at, deal with, namely:

11 "Specify any respects in which the Commission

12 considers that its satisfaction with the conduct of the

13 investigation ought to be recorded, and may deal with

14 any such other matters relating to the investigation or

15 the supervision thereof as the Commission considers

16 should be:

17 "(a) brought to the attention of the appropriate

18 authority, the complainant or the member concerned; or

19 (b) dealt with in the public interest."

20 Now, sir, returning to the general provisions, where

21 there had been supervision, no disciplinary, and no

22 criminal charges could be brought until the

23 Chief Constable had received the statement of

24 satisfaction, save where, in relation to criminal

25 matters, it appeared to the Director of Public

29


1 Prosecutions that there were exceptional circumstances

2 which made it undesirable to wait for the statement to

3 be submitted. Sir, that is back to RNI-231-299.

4 (Displayed)

5 Subsection 13 and subsection 14 of Article 9:

6 "Subject to paragraph 14, neither the appropriate

7 authority nor the director shall bring criminal

8 proceedings before the statement under paragraph 8 is

9 submitted to the appropriate authority.

10 "14. The restriction imposed by paragraph 1 does

11 not apply if it appears to the Director that there are

12 exceptional circumstances which make it undesirable to

13 wait for the submission of the statement ..."

14 Once the statement was received, the

15 Chief Constable, save in these very exceptional cases,

16 could proceed to deal with the criminal and disciplinary

17 aspects of the case.

18 Now, here the situation, as I explained at the

19 outset, is that in no case was the complaint upheld.

20 And as we go through all the cases and the various

21 officers' reports and the reviews and further

22 investigations, one must, if I may say so, bear that in

23 mind. And so, in a sense, the final stages of the

24 disciplinary and indeed the criminal side of the process

25 do not come into play. For that reason, I think we can,

30


1 with a sigh of relief perhaps, park those provisions for

2 the moment.

3 However, it is, I think, important to look in

4 perhaps a little more detail at the way the system

5 worked in practice. Now, as I indicated on Tuesday, we

6 have obtained evidence from a number of witnesses who

7 investigated matters, as RUC officers, and also who

8 worked for the Commission, either in the supervision of

9 complaints or in the administration of the Commission.

10 And we have indeed a statement from Mr Donnelly, who

11 will give evidence in due course, who was the chairman

12 of the Commission and was involved in particular in the

13 events that I have just outlined, ie the moment when

14 there was an indication that the statement of

15 satisfaction would not be forthcoming.

16 Now, the ICPC came into being in February 1988, as

17 I say. It was a body corporate: its members were

18 appointed by the Secretary of State and it was intended

19 to provide an independent and efficient system for

20 dealing with complaints made by members of the public

21 against the police. And we have seen how that was set

22 out in the statutory instrument and regulations.

23 The Commission was also required to report annually

24 to the Secretary of State on the discharge of its

25 functions, and those reports in the years with which we

31


1 are concerned contain a good deal of interesting

2 material about the statistics for complaints: how many

3 there were in each year; how many were substantiated; in

4 how many cases were criminal charges preferred; in how

5 many cases were disciplinary matters pursued; and what

6 the results of those processes was.

7 But they also tell us how many complaints were

8 brought to an end by dispensation under the provision

9 that I have mentioned, how many were not pursued, for

10 example, how many had to be ended where there was

11 insufficient cooperation.

12 Now, in fact, as far as we can see, using that

13 material, and also the Dr Hayes report, which I am going

14 to come to in a minute, about 10 per cent of all the

15 complaints were supervised. Of those cases, the

16 10 per cent, in about 70 per cent of them the Commission

17 exercised its discretion to supervise, and the remainder

18 were cases where supervision was mandatory, and those

19 are the provisions I showed you earlier.

20 Now, we will hear, as I say, from the witnesses who

21 worked for the ICPC later in these hearings, but can

22 I just show you a simple chart about the ICPC structure;

23 in fact, an annex to Dr Hayes' report, and it is at

24 RNI-233-107 (displayed).

25 I don't think we have that document to show you.

32


1 This is one of the disadvantages of the hi-tech system,

2 where, as far as I can see, nobody in the room, apart

3 from me, has any pieces of paper emanating from the

4 Inquiry bundles. I think I had better ask, as a matter

5 of important housekeeping, whether any of file RNI-233

6 has made it on to the system? Sorry about this.

7 THE CHAIRMAN: Will someone put a hand up for yes or thumbs

8 down for no?

9 MR PHILLIPS: A shake of a head would do, yes. (Pause)

10 MR MCGIBNEY: There is no 233 in there at the moment.

11 MR PHILLIPS: Right. That is one of the incidences of

12 advocacy and there will have to be some rearrangement of

13 my material as a result.

14 THE CHAIRMAN: Would it be better to have the break now?

15 MR PHILLIPS: I think it would, sir.

16 THE CHAIRMAN: Right. Hopefully a quarter of an hour will

17 be long enough. 25 to, please.

18 MR PHILLIPS: Thank you very much.

19 (11.20 am)

20 (Short break)

21 (11.35 am)

22 MR PHILLIPS: Sir, thank you for taking the break early.

23 I have now got to the bottom of the problem. No blame

24 whatsoever attaches to any of the IT people who are

25 waiting patiently there to display documents and I have

33


1 resolved to deal with the Hayes Report in due course

2 simply by referring you to the text and by reading the

3 relevant passages out to you in the traditional way.

4 Now, sir, I was attempting unsuccessfully to show

5 you the organisation of the ICPC and we will all just

6 have to hang on for that. Sir, the next thing I wanted

7 to do is to show you what the relevant department of the

8 RUC responsible for complaints and discipline,

9 G Department, looked like and I am hoping that that will

10 come up now. I think it may be slide 5. I have taken

11 the precaution of getting hard copies of this provided

12 to the Full Participants. (Displayed)

13 There we go. Now, I should say immediately that

14 this is a document generated by the Inquiry. It,

15 I hope, is accurate. No doubt those representing the

16 PSNI in due course will be able to tell the Inquiry

17 solicitor if it is not and we will make any necessary

18 amendments, but it is in fact a reproduction with pretty

19 colours of the document which appears as another annex

20 to the Hayes Report.

21 So certainly as far as Dr Hayes was concerned, it

22 was accurate, as at, I think, the beginning of 1997.

23 You will see at the head of the structure, the Deputy

24 Chief Constable. We have seen the delegation provision

25 to him. Under him and in charge of this department an

34


1 Assistant Chief Constable. It was referred to, as I

2 think I may have said, as G Department. Then a large

3 number of superintendents.

4 So far as we are concerned, the key stages which we

5 will see in the documentation are -- and I will explain

6 this in a bit more detail in a minute -- the stage where

7 the nature of the complaint is assessed initially and

8 a decision is made as to what should be done with it,

9 then a decision as to who should be the investigating

10 officer.

11 So far as that is concerned, it is the A, B, C, D,

12 E, F and G that is relevant to us, and particular in our

13 cases you will see reference to the G section which

14 dealt with Gough Barracks where a number of the

15 complaints originated.

16 This department dealt with a very substantial number

17 of complaints every year. The figures varied. I have

18 mentioned before that the Commission each year recorded

19 numbers, and indeed I think I am right in saying that

20 the Secretary of State then reported to Parliament as to

21 numbers and how the system was working. In the years

22 with which we are concerned, there appear to have been

23 between 2,000, 2,500, 3,000 new complaints each year,

24 and because complaints obviously run on, it might be

25 that the department was dealing in any one year with up

35


1 to 4,000 complaints.

2 Now, of these we think about three quarters involved

3 an allegation which, if proven, could amount to

4 a criminal offence, and the reference there for

5 everybody's note is paragraph 1.31 of Dr Hayes' report.

6 Now, as I have said, the new complaints were

7 classified by the head office -- that is the filtering

8 system I mentioned -- given a reference number and sent

9 out to the various teams that are set out in the charts.

10 And I would like to just show you an example of the

11 documentation, because we will be seeing the same

12 material repeatedly and some of it takes on an

13 importance which I think merits seeing some clean copies

14 at this stage. Could we have, please, RNI-231-035.

15 (Displayed)

16 This is the allocation form in which the initial

17 decision is made, and you will see 1(a), the appointment

18 of the officer, and then very detailed boxes to be

19 completed as appropriate, including for the cases where

20 the Commission was involved. If you look there at 4(a)

21 and (b), we have the mandatory cases and the

22 discretionary cases. Then 5(a) deals again with the

23 provisions we have seen about reports to the Director,

24 and finally some reference to the subdivisional

25 commander because, as we will see, one of the features

36


1 of the system in practice was that the senior officer

2 locally -- and I don't mean of complaints and discipline

3 now, I mean of the RUC -- was required to be involved,

4 to maintain records of complaints being made, as it

5 were, in his area, on his patch.

6 The operation of the system by G Department involved

7 the full range of the complaints system that we have now

8 seen; in other words, both the informal resolution, the

9 formal investigation and, of course, dealing at the end

10 of those processes with the question of discipline

11 itself. Could we have the organisational chart back,

12 please. (Displayed) Thank you. You will see there

13 that one of the many superintendents on the list is the

14 superintendent of discipline. So this department had

15 charge of the whole process from start to finish under,

16 of course, the final authority of the Deputy

17 Chief Constable.

18 Now, sir, so far as those officers were concerned,

19 that is, as I have indicated earlier, where the guidance

20 comes in and there are in the guidance provisions

21 detailed treatments of the various stages of the

22 investigation, of the various forms to be completed,

23 including the form 17(2), which, again, is one of the

24 forms that we will see repeatedly when we look at the

25 material.

37


1 Now, each divisional commander or head of department

2 was required to maintain a record -- and this is the

3 record I mentioned earlier -- regarding those members

4 under his command, members of the force, obviously, who

5 were the subject of complaints. The complaints

6 themselves, the detail of them, had to be recorded in

7 the occurrences, complaints and reports book with a note

8 of the action which was taken.

9 Now, it is, therefore, important to see that in

10 addition to the complaints system going forward under

11 G Department, there was, as it were, a distinct and

12 separate record so far as the officers' own command

13 structure was concerned, which made sure that material

14 was entered, updated and, as it were, the file completed

15 in each case.

16 Now, can we look at some of the documents in the

17 guidance. In RNI-232-131, first, paragraph 6, please

18 (displayed):

19 "Each complaint submitted by a member the public

20 about the conduct of a member of the force of or below

21 the rank of Chief Superintendent, or a traffic warden,

22 is recorded at G Department headquarters in the

23 Chief Constable's registered complaints."

24 Then 2:

25 "Each divisional commander/head of department will

38


1 maintain a similar record in respect of complaints

2 submitted against members under his command. This will

3 be done by filing a copy of form 17/2 and noting thereon

4 the final disposal of the complaint (including

5 a complaint disposed of by way of informal resolution)."

6 We can see a specimen of the 17/2 form at the same

7 file, RNI-232-159. (Displayed)

8 The Royal Ulster Constabulary, a complaint against

9 the police. And then boxes for the details of the

10 complainant. At 2, how, when and where the complaint

11 was received, who the officer was receiving the

12 complaint and the nature of the complaint.

13 Now, pausing there, sir, you will see in the cases,

14 as we go through them, that the classification at that

15 point, the question of the nature of the complaint,

16 became significant and there was concern expressed and

17 further complaint made, if you remember, about the

18 description of what appeared to be serious matters as

19 "incivility", that being the expression used, and used

20 at this point in box 4.

21 When and where cause for complaint occurred -- in

22 other words, the origin of the complaint itself.

23 6, the members concerned.

24 So those are the boxes rather for the officers'

25 names, their ranks, their numbers, their station or

39


1 station codes and their duty section or units to be

2 completed.

3 Then a box in the case of withdrawal, with various

4 parts to be filled, and indeed for the complainant to

5 sign at 7. Turning the page, please, to RNI-232-160 at

6 the top, there the business of criminal proceedings was

7 dealt with. 9 deals with informal resolution; 10 and 11

8 with any injuries and medical examination; weapons used,

9 12; and then evidence at 13; related complaints, 14;

10 attempt at informal resolution at 15. And over the

11 page, please, boxes dealing with the formal

12 investigation cases; that is 18; incident the subject of

13 client; initial interview; interview of officers. And

14 turning the page to RNI-232-162, re-interview, recommendation --

15 and this is obviously an important box, where the

16 initial filtering system determines what the treatment

17 of the particular complaint should be: withdrawn,

18 informally resolved or an investigating officer

19 appointed. Then a section for the subdivisional

20 commander himself and a provision, finally, to do with

21 distribution.

22 Now, the original and two copies of the form with

23 the various letters, statements and documents had to be

24 completed and distributed so, as I say, that everybody

25 involved in the system, including the local

40


1 subdivisional commander, was fully in the picture.

2 Indeed, there were separate provisions under which

3 he was required to satisfy himself that the documents

4 were complete and accurate, that the right procedures

5 had been carried out, that there were, where

6 appropriate, statements of evidence attached; in other

7 words, that the regulations in a broad sense had been

8 complied with. And we can see that at RNI-232-142.

9 At 6 at the bottom of the page -- sir, there is this

10 important, as it were, screening function to be

11 performed by the subdivisional commander. It is not

12 all, as it were, left to G Department.

13 But the form we have looked at, the 17/2, and the

14 documents would be sent on G Department, and as matters

15 continued on the basis obviously that there was going to

16 be a formal investigation, there were further

17 provisions, which I don't think we need look at, for the

18 local commander, subdivisional commander, to be kept

19 informed.

20 Now, so far as the steps to be taken when the formal

21 investigation began, we can see a copy of the relevant

22 form there, which is the 17/3 form. I hope, at any

23 rate, in file RNI-231--- no, we can't, that is the

24 caution to be administered when serving the 17/3 form on

25 the officer who is the subject of the complaint. Can

41


1 you look, please, at RNI-231-180. (Displayed)

2 This is the provision that requires the

3 investigating officer to administer a caution and

4 otherwise to take the first steps so far as the object,

5 as it were, of the complaint is concerned to begin the

6 process.

7 If we look to RNI-232-179 (displayed), we will,

8 I very much hope, find a specimen of the 17/3 form. And

9 there it is. You can see it is 17/3 at the bottom and

10 you can also see the terms of the caution. Can we

11 enlarge, please, the words in the middle of the page:

12 "You do not have to say anything."

13 Thank you:

14 "You do not have to say anything, but I must caution

15 you that if you do not mention when questioned something

16 that you later rely on in any subsequent disciplinary

17 proceedings, it may harm your defence. You may, if you

18 so desire, make a written or oral statement to the

19 investigating officer or the Chief Constable or the

20 police authority, as appropriate, anything you mention

21 when questioned, or any written or oral statement you

22 make may be given in evidence at such disciplinary

23 proceedings. If this notice is served on you by an

24 officer other than the investigating officer, you will

25 be interviewed by the investigating officer in due

42


1 course."

2 If we go back to look at the page, please, this

3 form, higher up, provides obviously for the details of

4 the officer complained against to be entered, and then,

5 under the heading "Details of Report", for the substance

6 of the complaint to be set out. At the bottom of the

7 page, you will see that the officer is told:

8 "You have the right to consult a friend at all

9 stages of the investigation, and he is required to

10 acknowledge and sign to certify that he has been served

11 with the notice."

12 Now, turning over the page to RNI-232-180, this is

13 a form to be completed in fact by the officer serving

14 the 17/3 form, and on this page there is a form of words

15 which begins a few lines down:

16 "I served form 17/3 (caution 1) on ..."

17 Then the name of the officer, and then underneath:

18 "... and drew attention to the caution at the front

19 of the form. At the same time, I handed the member

20 concerned a copy of [I think it's] notes for guidance of

21 members evidenced by inference, and the list of those

22 members of the force who volunteered to act as friends."

23 Pursuant to the provision we saw on the previous

24 page:

25 "The member concerned responded as follows ..."

43


1 Then there is a large blank. We will see in

2 a number of our cases that the officers elected to make

3 comment at that stage. In some cases, as I recall at

4 any rate, they decided not to.

5 So this was the formal way in which officers against

6 whom complaints had been made were (a) notified of the

7 allegation, and (b) given their first -- not their

8 only -- but their first opportunity to give their

9 response.

10 Now, so far as the investigation itself is

11 concerned, the guidance issued contained provision

12 relating to the selection of investigating officer, and

13 we can see that at RNI-232-030. (Displayed)

14 If you look under "Selection of Investigating

15 Officer" at 4.4, the guidance provides:

16 "The investigation of complaint must be, and should

17 clearly be seen to be, absolutely impartial. The

18 Chief Constable should ensure that the investigating

19 officer is of the appropriate rank and ..."

20 You will remember the provisions about that:

21 "... and experience, has a thorough knowledge of the

22 relevant regulations and the guidance, and has no

23 operational responsibility for or connection with the

24 member against whom the complaint is directed."

25 Pausing there. Assuming, obviously, that the

44


1 officer came from G Department, then that would be his,

2 as it were, home department. He would have no relevant

3 other operational responsibilities and so those

4 potential problems might not arise.

5 But the guidance also includes a provision, as you

6 see there, about the connection with the member, and

7 clearly that was a further safeguard for impartiality

8 and that is developed in the following sentences, which

9 I don't think we need to dwell on.

10 Now, I have already mentioned that the

11 Chief Constable could elect to select an officer from

12 another UK force. In our case, or in our cases, that

13 did not happen other than in the very particular case of

14 Commander Mulvihill that I mentioned.

15 So the investigation was to establish the facts

16 about the incident or the conduct complained of, and in

17 the light of those facts, enable an objective assessment

18 to be made of the complaint. And the guidance contains

19 detailed programmes in relation to that also at 031 of

20 the same file, RNI-232-031, under the heading "Conduct

21 of the Investigation".

22 So 4.11 deals with the purpose of the investigation

23 and stresses that:

24 "... the investigation should be conducted in

25 a manner which will enable both the member complained of

45


1 and the complainant to recognise this. Indeed, it

2 should be evident from the report that the investigation

3 has been carried out impartially, that the member

4 concerned has been afforded the safeguards provided in

5 the regulations and that no pressure has been put on the

6 complainant or on any other witness."

7 But you will see also both in 4.12 and 4.10 that,

8 with impartiality and, in 4.10, thoroughness, there are

9 also injunctions to speed. And you will see the detail

10 of that in 4.12 in particular, with a requirement that:

11 "If there were going to be delays, both sides should

12 be kept informed of the reasons for them."

13 Looking back to 4.10, which deals also with the

14 opening stages, in the second sentence:

15 "The investigating officer should normally arrange

16 to see the complainant without delay at the outset of

17 the investigation unless the complainant specifically

18 refuses."

19 Then there are some provisos about that, and in the

20 last two sentences of this, the question of withdrawal

21 is addressed. And in the last sentence, which

22 I highlight:

23 "Nevertheless, care must be taken to avoid pressure

24 being exerted on a complainant to withdraw his

25 allegations."

46


1 Now, as we will see, in the cases that we are

2 concerned with, one of the difficulties and one of the

3 problems encountered by a number of the investigating

4 officers was that it turned out not to be possible to

5 see the complainant, as it puts there, without delay at

6 the outset of the investigation. And we will look at

7 correspondence and other material on that in specific

8 cases in due course.

9 Now, in terms of the guidance to investigating

10 officers, there is one more piece of guidance that I

11 would like to show you and this is at RNI-231-027.

12 (Displayed) It is an aide-memoire and it reduces to a

13 very short and simple form the various longer documents

14 setting out guidance, and sets out the various stages

15 and makes clear what action, on the right-hand side, is

16 required.

17 Turning over to RNI-231-028, you will see at first

18 at 9, the provisions regarding service of the caution

19 material, the official notification that I mentioned.

20 10:

21 "Make contact with the complainant's solicitor

22 requesting interview and meeting. If supervised, the

23 interview must be arranged beforehand with the ICPC."

24 That was to ensure that the supervising member could

25 attend the interview.

47


1 Then look, please, at paragraph 12 of the memoire,

2 because of course all the guidance about seeing the

3 complainant urgently or as soon as possible would not

4 prevail if in fact the complainant failed to attend for

5 interview. Under the "Action" column (i) to (v), the

6 various suggestions were made and provisions set out for

7 increasingly determined and urgent ways of trying to get

8 a response from the complainant, and we will see in due

9 course a number of cases where the full range of those

10 provisions had to be followed through.

11 Now, turning over, please, to RNI-231-029, at 20 at

12 the bottom of the page, there the provisions about

13 interview and you will see the reference to PACE there

14 in relation to the criminal matters and the service of

15 the 17/3, or reminder of it, outlining the alleges

16 explaining the procedures. Turning the page, please, to

17 RNI-231-030, further provisions at the top right and

18 then provisions concerning the report and matters that

19 had to be dealt with there. And the guidance continues,

20 dealing with all sorts of permutations relating to the

21 DPP, et cetera, with which we are not directly

22 concerned.

23 Now, the guidance in our files also deals with the

24 issue, which I have hinted at, namely the situation

25 where the complainant does not cooperate with the

48


1 investigation. Can we look, please, at RNI-231-062.

2 (Displayed)

3 First I would like to draw to your attention

4 paragraph 2.1(b). This deals first with -- under the

5 heading "Principal Aims", there is one concerning the

6 investigating officers, that they should:

7 "... develop a more in-depth knowledge and

8 understanding of all aspects of regulation 17 so that

9 a full investigation into a complaint is only carried

10 out when sufficient details of the complaint are

11 available for a full and meaningful investigation."

12 Then this sentence:

13 "Whilst the RUC has a legal requirement to

14 investigate complaints against its members,

15 a complainant/solicitor must also be prepared to apply

16 his/her part in the process."

17 Now, the guidance continues in paragraph 3 and can

18 we have the rest of the page enlarged now, please. This

19 stresses to the investigating officers the need to be

20 fully aware of the extent and limitations of

21 circumstances in which regulation 17 dispensations may

22 be granted:

23 "They may be granted:

24 "(i) if the complainant refuses to cooperate or, if

25 the complaint is made on behalf of a third person, that

49


1 person refuses to cooperate. The refusal may be

2 initially in sub judice circumstances after the criminal

3 proceedings have terminated, or in civil proceedings

4 cases by wishing to await the outcome of those

5 proceedings."

6 Sir, just pausing there, in Dr Hayes' report and in

7 other general material we have obtained, the connection

8 is made between the making of complaints on the one hand

9 and the preservation of the complainant's position so

10 far as a subsequent civil action is concerned.

11 The suggestion put forward is that for some

12 complainants and possibly for some lawyers, the

13 complaints system was something to be triggered

14 initially, so that if in the civil proceedings it was

15 raised, well, look, you have launched this civil action

16 arising out of what you say is behaviour on the part of

17 the police but you didn't make a complaint. In those

18 circumstances, obviously, the concern was that an

19 adverse inference, adverse on the claimant in the case,

20 or plaintiff, would be drawn. So the suggestion is at

21 any rate complaints were made not with the fixed

22 intention of pursuing them to their conclusion through

23 the complaints system, but rather to tick a box; a box

24 not in the complaints sense, but with the subsequent

25 legal action in mind.

50


1 The way it is put is very simple: in a legal action

2 in a county court, at the end of it, if successful,

3 whether by way of judgment or settlement, the

4 complainant will obtain damages, will obtain some form

5 of monetary payment. In the complaints system, there is

6 in that sense nothing whatever to be gained by the

7 complainant. There is no financial reward, as it were,

8 for him if his complaint is made out in full. If the

9 full disciplinary processes are followed through and the

10 officer concerned is disciplined, on this perhaps

11 cynical approach the complainant is no better off.

12 Now, that, in the context with which we are

13 concerned here, is a feature, as I say, of some of the

14 material and reporting on the complaints system

15 generally. Well, of course, there were in every year

16 a substantial number of complaints which were initiated

17 but not pursued. Now, in considering this, one must

18 also bear in mind another concern expressed, comment

19 made, in relation to the use of complaints in criminal

20 proceedings. And this is perhaps more familiar to us in

21 other contexts, where, in order to ground the defence or

22 to bolster the defence to the criminal charge, the

23 suggestion is that there was use made of the complaint

24 system, so that it could form part of the process at the

25 criminal trial. And again, one is familiar with the

51


1 situation where the defendant, through his counsel,

2 makes an allegation about the way he was treated while

3 in police custody, and the Crown observes or points out

4 that no complaint consistent with that allegation was

5 made at the time.

6 Whatever the reasons in any particular case, it is,

7 as I say, a feature of the system at this time that

8 a number of cases were begun but not pursued with any

9 vigour at all on the part of complainants and their

10 lawyers.

11 Now, sir, can we look on the same topic at

12 page RNI-231-063. At the top of the page, there is

13 a note about refusal to cooperate and the simple point

14 is made that the question of non-cooperation may arise

15 at a later stage of the process. In other words, it

16 could be that a complainant made a statement, verbal or

17 written, but if thereafter he failed to take sufficient

18 part in the process and if the statement he had made

19 contained insufficient information on which to base

20 a full and meaningful investigation, then at that point

21 also the issue at least of refusal to cooperate and the

22 question arising, therefore, of a regulation 17

23 dispensation could arise.

24 In sub (ii), we have the recitation of the various

25 forms we saw earlier, including the additional cases

52


1 that I mentioned which came in slightly later in the

2 history in, we think, 1990.

3 So in the cases with which we are concerned and in

4 general, once the relevant forms have been served on the

5 officers, the next stage was to contact either the

6 complainant or his or her solicitor, inviting them to

7 attend for an interview. And we can see what the

8 guidance has to say about that on page RNI-231-064.

9 At 5.1, the officers are enjoined to consider the

10 question of making personal contact and the guidance

11 goes on to deal with the other cases where letters

12 needed to be sent to confirm interview arrangements in

13 writing.

14 The guidance also deals with the situation for the

15 officer where there is no response, no cooperation, and

16 provides -- we don't need to look at this -- it is on

17 page 68 -- for discussion to take place with senior

18 officers to determine the next stage.

19 Now, if at that point it is the view of the officer,

20 having taken advice, having consulted, that no full and

21 meaningful investigation can be carried out, at that

22 point he would have to make his report and then the

23 process that I don't want to take you to again of

24 dealing with dispensation, asking for agreement on the

25 part of the Commission, would follow through.

53


1 Now, there were also provisions dealing with what

2 was to happen when the Commission did not agree with the

3 Chief Constable's view that the matter should be

4 dispensed with. And there are provisions, which, again,

5 I don't think we need to deal with at this stage, for

6 consultation in those circumstances.

7 Now, the guidance also deals with the question of

8 interview. And in the particular cases which became

9 controversial and which were then further investigated,

10 we will see that the question of how the interviews were

11 conducted by the investigating officers became a matter

12 of some controversy.

13 Now, if we look, please, at RNI-231-102, we will see

14 the relevant guidance, and it begins with the sentence:

15 "This possibly is the most important stage in any

16 investigation. The formal interview of the officer

17 concerned will not normally take place until all the

18 other areas of the investigation have been completed and

19 all evidence is collated."

20 At sub (ii):

21 "It is for the officer guided by the team

22 superintendent or the supervising member for the

23 Commission ... to decide upon the identity of the

24 officers complained of."

25 We will see in some of our cases that that process

54


1 took place some time after the original complaint was

2 registered, and one can imagine easily the reasons for

3 that, because if there was any delay, for example, in

4 a complaint made by somebody detained about the conduct

5 of the interviews, it might transpire that that person

6 had been interviewed on a number of occasions by

7 a number of different officers.

8 It may well be, indeed, it was probably going to be

9 the case that the detainee would not know the names of

10 the officers or, if he did know them or was told them,

11 he would not remember them. Thus it was in a number of

12 cases, as we will see, that the complainant produces

13 a physical description. And what the investigating

14 officer then had to do effectively was to consider the

15 custody record, the interview record, and try to decide

16 as between all the various officers concerned in

17 interviewing that suspect which were -- and I quote:

18 "The officers complained of."

19 And the result of that is that in a number of our

20 cases there may be three, four, five, six officers who

21 received the form 17/3 and became the object of an

22 investigation effectively at the behest of the

23 investigating officer doing what he could after the

24 event to work out against whom the complaint was in fact

25 being made.

55


1 Now, moving on down, you will see at (iii) guidance

2 on this very point, and later on at 1.2, just below that

3 on the page, some provisions concerning the interviews:

4 "The officer should be properly prepared ... and in

5 a position to press home the enquiries ... he should

6 never accept a bland 'I deny all' response from the

7 police officer concerned. Investigating officers should

8 find it beneficial to go to an interview armed with a

9 prepared questionnaire on the essential points that have

10 been identified and be ready to follow up these with

11 supplementary questions.

12 "Where the officer concerned makes a statement to

13 the investigating officer or hands in a prepared

14 statement, further questions should be put as necessary

15 so as to ensure that all allegations are adequately

16 dealt with and the investigation can be seen to have

17 been thorough."

18 And again, sir, as we will see, this aspect of some

19 of the investigations caused concern at the Commission,

20 where the officers, or a number of the officers, handed

21 in prepared statements at the beginning of the

22 interview, and exception to that practice was taken by

23 the supervising member. And it was one of the points of

24 contention between the supervising member on the one

25 hand and the investigating officer on the other in those

56


1 cases.

2 Now, sir, the guidance also contains a provision

3 about the situation in which an officer declines to be

4 interviewed, and that is at RNI-231-115, paragraph 5.2

5 of that page:

6 "It is, of course, open to an officer under

7 investigation either to decline to be interviewed in

8 these circumstances or, if interviewed, decline to

9 answer questions. In the latter situation, the Criminal

10 Evidence (Northern Ireland) Order 1988 allows a court to

11 draw adverse inferences from silence during interview."

12 Then the discipline regulations allow an officer

13 conducting a disciplinary hearing to draw similar

14 inferences:

15 "The officer under investigation, therefore, runs

16 the risk, if he declines to answer questions and if

17 criminal or disciplinary proceedings are eventually

18 directed, of having inferences drawn from his silence."

19 Now, there is also some material in this guidance

20 about the presence of the supervising member at

21 interview. And if we look, please, at 5.1 on the same

22 page, we will see the guidance there:

23 "In exercising its power to supervise

24 investigations, the Commission has authority by statute

25 and by court decisions to insist on being present during

57


1 interviews, whether with the officer under

2 investigation, other police officers or civilian

3 witnesses. At the commencement of such an interview

4 with either an officer under investigation or a police

5 witness, the investigating officer should remind the

6 officer of the Commission member's authority to attend

7 the interview. The officer should also be informed that

8 he/she should afford the Commission member the degree of

9 courtesy and respect similar to that shown to

10 investigating officers."

11 Underlying some of the points of contention between

12 the supervising member and the investigating officer

13 I mentioned earlier, you may think, is this question of

14 the way in which the member regarded her treatment at

15 the hands in fact not only of some of those interviewed,

16 but also of the officer himself, and that became a major

17 contention.

18 Now, the guidance then goes on to deal with what the

19 Commission member's role should be, and that is at the

20 bottom of the page, 5.4:

21 "The member of the Commission will play no part in

22 the actual interview but may, before the interview

23 begins or after the interview, suggest

24 questions/additional questions for the investigating

25 officer to put to the officer being interviewed. The

58


1 questions to be put are essentially a matter for the

2 investigating officer, but the Commission might refuse

3 to issue a certificate of satisfaction at the end of the

4 investigation if matters raised by the supervising

5 Commission member were not dealt with to his/her

6 satisfaction. This could include a refusal to put

7 certain questions."

8 Again, sir, this is in broad terms the sort of

9 territory that came to be important as those complaints

10 moved from the situation in which they were being

11 supervised by the Commission eventually into the hands

12 of Commander Mulvihill.

13 Now, there are provisions, detailed provisions, in

14 the guidance concerning the nature of the files to be

15 maintained by the investigating officer, the matters to

16 be covered in the report and the way it should set out

17 the evidence and assess its reliability, together with

18 the making of observations and, of course, with

19 recommendations. And the officers are told that the

20 report should be objective and dispassionate, avoiding

21 the assumption that a complaint is unlikely to be

22 genuine.

23 Now, sir, so far as the ICPC is concerned, there is

24 guidance there too. Can we look, please, at

25 RNI-232-037. (Displayed) Paragraph 6.9 this takes us

59


1 back to the statement of satisfaction:

2 "At the end of an investigation which it has

3 supervised, the Commission must prepare a statement for

4 issue to the appropriate authority, the complainant and

5 the member whose conduct has been vetted. The statement

6 should indicate whether the Commission was satisfied

7 with the conduct of the investigation, and specify any

8 respect in which it was not. The Commission's statement

9 is intended as a sanction of last resort and it is hoped

10 that the Commission will rarely, if ever, find it

11 necessary to make an adverse statement."

12 That, perhaps, helps to explain, sir, the

13 consternation which was caused, both at the RUC and

14 within the NIO, when it became clear that this rare

15 event might be about to take place:

16 "However, it will be open to the Commission to enter

17 certain qualifications when recording a satisfactory

18 verdict on an investigation without implying that it was

19 dissatisfied with the investigation as a whole."

20 Now, sir, pausing there, at the very end, so far as

21 the Commission was concerned, of this process we will

22 see that it did indeed issue a statement of

23 satisfaction, but it is at least possible to read that

24 statement as containing within it certain

25 qualifications; in other words, that although the end

60


1 result was a statement of satisfaction, there were

2 caveats, particularly about the earlier conduct of the

3 investigation, within it:

4 "The Commission will also be able to record its

5 reasons for being satisfied with an investigation or its

6 supervision which it considers should be brought to the

7 attention of the appropriate authority, the complainant

8 or the member whose conduct was investigated."

9 Then a provision there about confidentiality.

10 Now, sir, so far as the conduct of the officer, the

11 investigating officer under supervision is concerned,

12 the guidance has words for him or her at 6.11 on the

13 same page:

14 "A member conducting a investigation under the

15 supervision of the Commission should bear in mind not

16 only the need to observe the formal requirements of the

17 Commission in regard to the supply of information and

18 the conduct of the investigation, but also the

19 desirability of keeping the Commission abreast of

20 significant developments in the investigation. In

21 particular, the investigating officer is reminded of the

22 procedure which requires him to inform the Commission of

23 the outcome of consultations between the RUC and the

24 Director of Public Prosecutions."

25 Now, sir, the guidance also deals with the final

61


1 internal stage, if I can put it that way, of the

2 process; in other words, where the Chief Constable has

3 to consider and decide what action is appropriate in

4 relation to an investigation. But again, for the

5 reasons I gave when looking at the regulations and the

6 statutory instrument on this, I don't think -- but I may

7 be wrong -- I don't think we need to consider that at

8 this stage.

9 There are then further provisions dealing with

10 supplying information about the end result of an

11 investigation to both the complainant and also to the

12 officer. Can we look very briefly at those, please.

13 They are at RNI-232-006. (Displayed)

14 If you look at the bottom of the page at 11(2), you

15 will see that this is dealing with the situation where

16 the Chief Constable has decided not to prefer

17 disciplinary charges and where the Commission accepts

18 his decision -- you will remember the two stages of

19 that:

20 "It shall:

21 "(a) so inform the Chief Constable forthwith; and.

22 "(b) subject to paragraph 4 ..."

23 Which we will see over the page:

24 "... notify the complainant of the decision and of

25 its acceptance thereof."

62


1 Could we have the next bit, please. Thank you:

2 "... and may furnish the complainant with such

3 relevant information in explanation thereof, if any, as

4 appears to the Commission to be appropriate."

5 So it is in that sense left to the Commission to

6 pass on what it thinks is appropriate as to that

7 decision by the Chief Constable, accepted by the

8 Commission, not to take the matter any further.

9 A question of notifying the officer concerned, that

10 remained a matter for the Chief Constable in relation to

11 disciplinary matters and, as far as we can see, what

12 happened in relation to all of these cases in terms of

13 the end of the process was indeed that the relevant

14 member, and indeed the complainant, were kept informed

15 in accordance with these provisions of the end result of

16 the process.

17 Now, sir, that is a no doubt exhausting survey of

18 the framework and the guidance. However, before looking

19 at the individual complaints, I would like at this stage

20 to deal with the Hayes Report, because it is a way of

21 seeing in, as it were, a snapshot how the system was

22 actually operating at the time he wrote it, which is

23 just before the complaints with which we are

24 particularly concerned. His report was published, if

25 you remember, in January 1997. And the first of the

63


1 reports on which we have focused our attention, the

2 circumstances giving rise to them, took place

3 in February that year, so just a month later, and it

4 shows from an independent perspective not only, of

5 course, what Dr Hayes observed about the working of the

6 system in practice, but also what he regarded as being

7 its strengths and weaknesses.

8 Now, I have indicated at various stages of my

9 opening views which people held about the system and

10 about the way it was used or, indeed, misused. However,

11 you may think that the advantage of this report is

12 precisely because it comes from somebody who was

13 objective, who was outside the system and who was able

14 to look at the thing as a whole rather than from one

15 particular perspective.

16 It is also important, of course, because this is the

17 report accepted in due course by Government which led to

18 the new system, which replaced completely the complaints

19 system which I have just outlined for you.

20 Now, the Hayes Report is a substantial document and

21 of course I don't propose to go through more than

22 a small part of it, but perhaps one should start with

23 the object of his review.

24 He was asked to consider the operation of the

25 existing mechanisms for dealing with complaints against

64


1 the police by members of the public in Northern Ireland.

2 He was asked to recommend whatever changes would improve

3 the overall system and, of course, the detailed Terms of

4 Reference are set out, as one would expect, in his

5 report. And for everybody's note they can be found at

6 RNI-233-101, page 101 of file RNI-233.

7 He was appointed in November 1995 and, as I say,

8 just over a year later, produced a report which was

9 entitled "A Police Ombudsman for Northern Ireland". He

10 identified a number of failings in the existing

11 arrangements as he saw them. He found that the system

12 lacked credibility with the public as a result of its

13 perceived lack of independence:

14 "While there were systemic failings in the present

15 arrangement, they lacked credibility because of lack of

16 independence, because it was the Chief Constable who

17 decided what was a complaint, because there was no power

18 of initiative and because the complaints were

19 investigated by police officers in about 10 per cent of

20 the more serious cases under supervision by the

21 Independent Commission for Police Complaints."

22 Police investigating police. His main

23 recommendation, therefore, was that there should be

24 a Police Ombudsman and that that ombudsman should be

25 appointed with the duty to investigate complaints and to

65


1 report his or her findings and that all complaints about

2 the police should be made through the Police Ombudsman.

3 And I quote:

4 "My main recommendation, therefore, is that there

5 should be a Police Ombudsman responsible to Parliament

6 with a duty to investigate complaints and to report his

7 or her findings. This would be a full-time post and

8 should be filled by a judge or a person of the quality

9 and experience of a senior judicial figure."

10 So in short, therefore, that the new system should

11 not be in the hands, in terms of investigation,

12 determination, in the way that I have mentioned, of the

13 police. In his summary of recommendations at 19.5, and

14 again I quote:

15 "The Ombudsman should have complete control of the

16 complaints process. He should decide what constitutes

17 a complaint and determine how it will be handled and by

18 whom. Control will also mean that the Ombudsman can

19 call him or herself in for incidents which, were they

20 complaints, he or she would want to be involved in."

21 Now, in putting together his report and considering

22 his recommendations, he identified strengths and

23 weaknesses of the system, and that was done in the text,

24 so everybody has a note -- sorry, the display is of

25 a document from another file. Can you take that off?

66


1 That will come later on. Thank you.

2 In chapter 9, he sets out at pages RNI-233-043 and

3 RNI-233-046 the strengths and weaknesses of the system,

4 and it follows from what I have said about his overall

5 conclusion that in the balancing act which he undertook,

6 the weaknesses prevailed. He gave more detail on

7 page RNI-233-044 of the file:

8 "A frequently raised criticism is that it is the

9 Chief Constable of the RUC who decides what is or is not

10 a complaint."

11 Then:

12 "All investigations in Northern Ireland are carried

13 out by police officers in the complaints and discipline

14 department of the RUC, albeit that 365 of the 2,343

15 investigations undertaken in 1995 were conducted under

16 the supervision of a member of the ICPC."

17 He also identified the standard of proof as a major

18 concern, the criminal standard that I mentioned earlier,

19 and went on to deal also with the question of the number

20 of cases which were withdrawn or dispensed with. He

21 said:

22 "Too many cases are withdrawn or dispensed with:

23 1,114 in 1995, or 41 per cent of the cases closed."

24 He also commented upon the rate of substantiation;

25 in other words, the percentage of complaints that was

67


1 made out, commenting that it was unrealistically low.

2 He said in this chapter, this:

3 "Some of the complainants I met felt bruised by

4 a system which they felt had treated them badly, had not

5 given them satisfaction and had treated their complaints

6 in a mechanistic way. Those who felt most strongly

7 about them were people who had never had any contact

8 with the police before."

9 Now, sir, that is just a selection of the pages of

10 weaknesses, and the effect of that for him was to

11 counterbalance and overtop the strengths, which he also

12 listed on pages RNI-233-043 and RNI-233-044. And there were a large

13 number of them, but as I say, in the balancing exercise

14 he clearly came down on the side of the weaknesses.

15 He complimented the system, however, on a wide range

16 of matters, not only relating to the ICPC's involvement

17 in the process but also the way in which the police

18 side, the G Department side, was working.

19 Now, in the section of his report which dealt with

20 the features of it as he saw it at the time -- in other

21 words, the snapshot that I referred to earlier -- he

22 dealt with a number of concerns which had been raised

23 with him. He said first of all that:

24 "Whilst most complaints made are genuine, it was

25 suspected that some are made as a phenomenon of defence

68


1 in court proceedings."

2 The point I mentioned earlier:

3 "It was also recognised that complainants'

4 solicitors would often lodge a complaint as a supporting

5 strategy to a civil action."

6 He talked about the attitudes on both sides in

7 relation to the system generally. He said at

8 paragraph 1.29 that:

9 "Some police officers regard all complaints as

10 malicious or as a challenge to their authority. Some,

11 indeed, are, and the system must deal with these without

12 deterring the honest citizen who feels wronged. Some

13 complaints are made, justifiably or not, to assist the

14 defence in a later trial. Some range from quality of

15 service issues, like rudeness or incivility or an excess

16 of zeal, through the unreasonable use of force to death

17 in custody, or wrongfully at the hands of a police

18 officer. They range from carelessness to indiscretion,

19 from minor misdemeanour to potentially serious criminal

20 charges. The system for dealing with complaints must be

21 capable of dealing with all of these."

22 Then he continued at paragraph 1.30:

23 "What became apparent fairly early from talking to

24 people and from opinion polls and prior comment was

25 a lack of faith in the present system. This largely

69


1 arises from the length of the process, the low number of

2 complaints found to have been substantiated and the

3 small number of police officers who have been brought to

4 court or convicted or even disciplined as a result of

5 a complaint by a member of the public.

6 "Whilst it is not a very satisfactory indicator of

7 the effectiveness of a complaints system to count the

8 penalties inflicted as if it were a scalp hunt,

9 nevertheless, the extremely low rate of substantiation

10 can reflect only a less than totally effective

11 complaints system or a more than perfect standard of

12 police behaviour in all circumstances.

13 "This, as was pointed out to me on several

14 occasions, contrasts with the large amounts which are

15 being paid out to satisfy civil claims for damages. It

16 is hard to rebut the comment of one demoralised

17 complainant who asked why, if nothing was wrong, was all

18 that money being paid out, and if all this money was

19 being paid, why had nobody been disciplined."

20 Now, these findings about the system led him, in

21 this same opening chapter 1, to this summary of the

22 position -- and this comes from paragraph 1.35:

23 "Overall, I found that those who operate the

24 complaints system in Northern Ireland are

25 well-intentioned, dedicated people who have sought to

70


1 operate the current procedures to the best of their

2 ability. They have, however, been held back from

3 achieving significant public confidence partly,

4 admittedly, by the no-win nature of their work, but also

5 by the limitations of the system itself.

6 "It is the absence of a clear, independent element

7 which controls and conducts investigations into

8 complaints and the lack of flexibility and transparency

9 which are crucial in this regard. I have sought to

10 address these and other related and important problems

11 in this report."

12 I should say, sir, that in arriving at his

13 conclusions, as you will see -- and I am now referring

14 to earlier paragraphs on the same page, RNI-233-012 --

15 that he had indeed considered comparable systems in

16 existence in other parts of the world and taken into

17 account the particular circumstances in Northern Ireland

18 in deciding whether and to what extent it was possible

19 to apply the lessons learnt, the systems used in other

20 jurisdictions, to the very particular circumstances of

21 Northern Ireland.

22 Now, in chapter 4 he dealt with the question of what

23 the system was doing and delivering in practice, and

24 this is the final part of the report to which I make

25 reference at this stage. What he did first in this

71


1 chapter at page RNI-233-023, for people's note, was to

2 summarise the essential features of the system. He then

3 dealt with the organisation and funding, and then in the

4 paragraphs from 4.6, he had a section headed "Statistics

5 and Standard of Proof".

6 Now, sir, so far as we are concerned, it may well be

7 that that latter point is not of immediate importance,

8 but the report does contain interesting information, you

9 may think, about the statistics. The figure for the new

10 cases received in 1995 he gives is 2,345 cases,

11 450 being carried over from the previous year. And of

12 those, as I mentioned earlier, 365 were cases

13 investigated by the police but supervised by the

14 Commission, the most common allegations being assault

15 and incivility.

16 20 per cent of the cases closed in 1995 were

17 withdrawn and 20 per cent were dispensed with, and

18 therefore, of the total number of cases, some 1,400 were

19 fully investigated, 1,000-odd were referred to the

20 Director of Public Prosecutions and 14 criminal charges

21 were directed.

22 Disciplinary charges, formal disciplinary charges,

23 were preferred in 15 cases and informal disciplinary

24 action was taken in 99.

25 He recorded that:

72


1 "Since the Commission had been formed in 1988, there

2 had been 68 cases where criminal charges were brought

3 against police officers by the director and 189 in which

4 disciplinary charges had been brought by the police or

5 the Commission."

6 Then he dealt in more detail than I have given so

7 far about rates of substantiation, coming up with the

8 1.5 per cent figure for 1994 and 1.1 in 1995, and

9 comparing it with figures in England and Wales, which

10 average 2.2 in 1994 and 2.1 in 1995, and also taking

11 into account international comparisons which included

12 some very much higher percentages, notably 14 per cent

13 substantiation in New Zealand.

14 Now, sir, I have got just a little more from

15 chapter 4 to draw to your attention but would that be

16 a convenient moment?

17 THE CHAIRMAN: Yes. Two minutes past two, please.

18 (1.02 pm)

19 (The short adjournment)

20 (2.02 pm)

21 THE CHAIRMAN: Yes, Mr Phillips.

22 MR PHILLIPS: Sir, before returning to the report, can

23 I just mention one piece of housekeeping. We have just

24 handed out to the participants a list of all the lawyers

25 who will be giving evidence and from whom we have

73


1 obtained statements on the issues I was dealing with

2 yesterday afternoon. I should also say that we have

3 provided, in the last days, and will continue to

4 provide, documents of this kind intended to assist

5 people, not least because of obviously the bulk of

6 material we are dealing with and the very large number

7 of witnesses.

8 Sir, then, returning to substantiation, if you

9 remember, we had left the issue in New Zealand, but

10 returning to Northern Ireland, in the second sentence of

11 the paragraph I was looking at there is another comment

12 on this matter that I want to draw to your attention,

13 and I think that some mechanism has been found to

14 display the pages -- oh, not yet. The suspense is very

15 considerable.

16 So I will just carry on reading, then. In the

17 second sentence of paragraph 4.8 at RNI-233-024, it

18 says:

19 "The substantiation rate in Northern Ireland has

20 been criticised as being unrealistically low. This view

21 has come not only from the seasoned critics of the

22 existing system, but also from those operating the

23 system."

24 He then puts the statistics that I gave you in

25 context with the comment:

74


1 "This is a difficult area for any complaints

2 organisation and is, for example, dependent on recording

3 practices."

4 But having set out those statistics ending with the

5 New Zealand one, he says:

6 "This tells me two things: one is that

7 Northern Ireland has a low rate of substantiation, and

8 the other is that high rates should not be regarded as

9 likely or realistic."

10 So if I may say so, some salutary observations there

11 about the dangers of statistics. He continues in this

12 way:

13 "There are numerous theories put forward for the low

14 substantiation rate in Northern Ireland. These include

15 the problem of obtaining independent witness evidence,

16 the related difficulty of police allegedly closing

17 ranks, the claim that investigators are of mixed ability

18 and varying enthusiasm, that complainants and solicitors

19 have no faith in the system, that complainants are

20 encouraged to withdraw by the police or that they are

21 encouraged to make false complaints, and the ICPC has no

22 real power.

23 "There are undoubtedly problems in these areas, but

24 the single most important reason mentioned by virtually

25 everyone was the standard of proof used in determining

75


1 disciplinary cases."

2 That, as I indicated earlier, becomes the focus of

3 the next paragraphs in his report which, for the reasons

4 I gave, I don't think we need to deal with.

5 In fact, what happened is that he recommended that

6 a sliding scale should be adopted in relation to the

7 standard of proof, ie varying between the minor

8 allegations on the one hand and the serious matters on

9 the other. And so, perhaps ironically, at least for the

10 serious cases, in fact, despite his comments that higher

11 level was part of his recommendation and it was

12 maintained in his report.

13 He then turned, at paragraph 44.21, to deal with the

14 complaints system in the context of civil litigation.

15 Here, he said:

16 "The complaints system is complicated by the fact

17 that the complainant's solicitors will often lodge

18 a complaint as a supporting strategy to a civil claim.

19 Figures from the Police Authority of Northern Ireland

20 show that around 500,000 is paid out annually on civil

21 claims, including cases of assault, wrongful arrest,

22 false arrest and overholding. A detailed breakdown is

23 not available, but it is reasonably clear that a number

24 of cases relate to complaints or might otherwise have

25 led to a complaint.

76


1 "Two related points arise from this: the first is

2 the likelihood of a situation where complaints cannot be

3 satisfactorily investigated because complainants will

4 not cooperate for fear of prejudicing their civil case,

5 and then when their case is concluded and whether or not

6 they are successful, they have no further interest in

7 their complaints, and this leads to a large number of

8 complaints clogging up the system and then effectively

9 having to be written off.

10 "The second point is that where civil claims are

11 successful, then it is ..."

12 He then quotes from Lord Runciman's Commission

13 Report:

14 "... unsatisfactory from the reputation of the

15 police service when it is reported in the press that

16 large sums of damages have been awarded or agreed to be

17 paid in respect of serious misconduct by identified

18 police officers, and it then becomes known that no

19 disciplinary action is to be taken against the officers

20 concerned."

21 He then proceeds to address the question of what

22 could be done to solve these problems and comes up with

23 recommendations, essentially ensuring that there was

24 some form certainly of communication, but also of, as it

25 were, liaison between, on the one hand, the civil

77


1 strand, the proceedings, and on the other, the complaint

2 system, acknowledging, as he did so, that there were

3 going to be difficulties in whatever change system was

4 finally adopted.

5 Now, sir, the final part of his report that I want

6 to draw to your attention at this stage is that dealing

7 with the cooperation of complainants, and it is in

8 chapter 16 and it begins at paragraph 16.14.

9 Now, because, as you remember, one of the

10 deficiencies of the system that he identified was that

11 not enough people had faith in this, not enough people

12 were prepared to take part in it and, as it were, to

13 invest time in it:

14 "It is also important to consider what can be done

15 to encourage complainants to pursue complaints. As

16 I began my review, I was aware of a feeling among police

17 officers and ICPC staff that complaints were lodged by

18 solicitors or complainants for tactical reasons, mainly

19 because they were also making civil claims against the

20 police or because they had been charged by the police.

21 Around half of complaints are of assault and these often

22 follow an arrest and charge. I was subsequently aware

23 through my survey that complainants using solicitors

24 were less satisfied with the process than almost any

25 other users.

78


1 "My initial view was that this problem was not

2 healthy but that not much could be done. I thought the

3 lowering of the standard of proof might have a bearing

4 and the police should continue to look at trends in this

5 area to feed back lessons to management on scenarios

6 that lead to such complaints. Also, the Ombudsman could

7 seek to discontinue such cases where cooperation is not

8 forthcoming.

9 "As I have mentioned, the complainant is contracting

10 with the complaints body and the complainant's side of

11 the deal is to cooperate to the best of his or her

12 ability. However, I soon realised that this issue was

13 more complex. I met representatives of the

14 Law Society's Criminal Lawyers' Committee and of the

15 solicitors who most often used the complaints system

16 ..."

17 There we go. Excellent, thank you. So we are at

18 16.16:

19 "... the message from both was the same ..."

20 So that is representatives of the Law Society's

21 Criminal Lawyers' Committee and of the solicitors who

22 most often use the system:

23 "The message was both was the same and hard hitting.

24 They advised their clients not to complain, or if they

25 did, not to cooperate. Solicitors felt that if clients

79


1 did cooperate, then they could find their statement used

2 against them in any charges they faced."

3 So, sir, pausing there, clearly the view taken by

4 Dr Hayes at this point is, you may think, of some

5 importance in his general assessment of whether the

6 system was working, because he was being told by the

7 representatives that they positively advised clients not

8 to use it. And one can see in this passage how that

9 must have affected what he described at the beginning,

10 ie at 16.14, as his view at the start of his work.

11 Now, then there is a quotation from the Director of

12 Liberty, but can we turn to the next page, RNI-233-076,

13 at the top. The bit I want is the first three

14 paragraphs:

15 "More worryingly, the solicitors also related tales

16 (and I do not know, and nor did they, how widespread the

17 practices are) about deals being done by complaints and

18 discipline staff at the back of the courts and of honest

19 first-time complainants lodging complaints about police

20 behaviour only to end up being charged.

21 "This latter point had led solicitors to advise

22 clients that the dangers of complaining, or at least

23 cooperating, outweighed the benefit.

24 "I have to say that these frank comments were a poor

25 reflection on the complaints system. Clearly, if true,

80


1 they are unacceptable practices. There can be no more

2 justification for them than there is for pressure on

3 complainants to withdraw.

4 "Under my proposed system, complainants and

5 solicitors should be reassured to some extent by the

6 fact that control of complaints will no longer be in

7 police hands. This should remove the possibility of

8 bargaining at the back of court. On the question of

9 charges being laid because of a complaint, this could,

10 I fear, still happen, but I would hope police management

11 would be more alive to the issue and the Ombudsman

12 should be watchful of it. Were it picked up internally

13 or by the Ombudsman, it could amount to an abuse of

14 authority by the officer."

15 Sir, that is all I wish to quote from the report at

16 this stage. And the position, as I have explained, is

17 that Government, the Conservative Government, accepted

18 the recommendations and they were then taken forward by

19 the Labour administration which came in in May.

20 The position, therefore, is -- and we will see this

21 in the NIO material -- that it was accepted by

22 Government, by ministers indeed, in correspondence, that

23 there was an insufficient level of confidence in the

24 system, that the system had flaws and that it had to be

25 and would be changed.

81


1 The position adopted by Government, ministers and

2 civil servants and repeated by those who have given us

3 statements on this issue is of course that whilst the

4 old system was continuing, they expected individuals

5 with complaints to use it. But we are, therefore,

6 during the period relevant to our consideration of

7 specific complaints, in something of a limbo, where at

8 an official level -- not just in NGO and other material,

9 but an official level -- the concerns had been accepted,

10 the recommendations of Dr Hayes had been implemented and

11 there was an acknowledgment of the flaws in the system.

12 But it was the only game in town, and as far as

13 Government and the NIO were concerned, therefore,

14 individuals should be encouraged, and continue to be

15 encouraged, not only obviously by Government and by the

16 police but also by their own solicitors, to engage with

17 the system and to cooperate with any investigation. If

18 they did make a complaint. And we will see repeatedly,

19 in the correspondence, civil servants and ministers

20 urging those with matters of complaint or concern to

21 take them up through the proper channels, by which they

22 meant the system which was then still in operation.

23 Now, sir, by way of further focus, if I can put it

24 that way, having now set out for you the legislative and

25 regulatory framework, the guidance and taken some time

82


1 to look at how it was regarded by Dr Hayes and what the

2 perceived strengths, weaknesses and proposals for

3 improvement were, can we now turn to the question of

4 Rosemary Nelson's practice and the question of

5 complaints within it.

6 Here, of course, is an example of where our issues

7 come together or overlap, because of course we are

8 looking not only at the specific complaints and at the

9 procedures that we are enjoined to do under the Terms of

10 Reference, but also to consider what the effect of this

11 type of work, this type of legal work, done by

12 Rosemary Nelson, may have had on the organisations

13 referred to in issue 1.

14 So, sir, in the course of its work, the Inquiry has

15 sought to understand how often complaints were made by

16 Rosemary Nelson against police officers and the

17 perception of police officers regarding this aspect of

18 her work, how they viewed this part of her practice.

19 Now, in order to set that in some form of context,

20 in correspondence with the Inquiry, the PSNI advised

21 that according to a database which they had, there were,

22 between 1993, January, and December, the end of 1998,

23 about 4,500 complaints made by solicitors, not overall

24 but made by solicitors on behalf of clients, and of

25 those, Rosemary Nelson made, we think, about

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1 115 complaints on behalf of clients between 1996 and

2 1999.

3 Now, one gets a slightly more detailed insight when

4 one looks at the review which was undertaken about the

5 actual files involving complaints made by her clients

6 during the relevant period, and this suggested to us at

7 any rate that there were emanating from the practice in

8 that period, 1996 to 1999, about 230 such complaints.

9 Now, so far as the vast majority is concerned, we do

10 not propose to take any time looking at them in detail,

11 investigating them. We are looking above all at those

12 complaints which fit within the matters set out in the

13 Terms of Reference, in other words, those which revolve

14 around the question of threats, and also what we have

15 described in the List of Issues as adverse behaviour or

16 comment.

17 Now, looking at the case load, the outcomes of these

18 complaints broadly conform to the observations made by

19 Dr Hayes. In other words, in many cases the complainant

20 withdrew the complaint or the Commission granted

21 a dispensation due to non-cooperation.

22 Of the cases that were fully investigated, the vast

23 majority concluded with the officer finding that the

24 allegations had not been substantiated and no

25 disciplinary action was required. That advice in turn

84


1 was invariably accepted by the officer's superior within

2 G Department and by the Commission.

3 There were also many cases, again, reflecting the

4 findings of Dr Hayes, where complaints were submitted

5 but where criminal or civil proceedings connected to the

6 complainant had been commenced or were being

7 contemplated.

8 Now, trying to get a sense of the proportions of it,

9 a large number of complaints arose out of events on the

10 Garvaghy Road in July 1996 and July 1997. There were

11 48 complaints, for example, lodged by Rosemary Nelson

12 in August 1996 on behalf of her clients, and in relation

13 to those complaints, dispensation was eventually granted

14 by the Commission on the grounds of non-cooperation on

15 7th February 1997.

16 In relation to Garvaghy Road in 1997 -- and this is

17 an area of a particular concern -- there were letters of

18 complaint issued on behalf of 96 clients and about 19 of

19 them, we think, provided statements in support of their

20 complaints but, as far as we can ascertain, none agreed

21 to be interviewed by the RUC. All were eventually

22 dispensed with under the system by the Commission on the

23 grounds that they were incapable of investigation due to

24 non-cooperation. And many of them in both years

25 coincided with civil actions. I don't know if you

85


1 remember from the time when I was setting out some of

2 the statistics about her practice and I mentioned the

3 large number of claims which were pending arising out of

4 those incidents.

5 Now, sir, you will remember that, in relation to the

6 1997 incident on the Garvaghy Road, of course,

7 Rosemary Nelson had her own complaint indeed and her own

8 subsequent legal action.

9 Now, sir, the review that we have been able to do

10 has focused largely on the years 1997 to 1999. In our

11 files in section 2, there are some earlier complaints

12 but they are not the principal focus of our attention.

13 As far as we could see, in terms of the other

14 complaints, ie the non-Garvaghy Road complaints, there

15 appeared to be 38 files from 1997, a further 52 the next

16 year and four only in the first three months of 1999.

17 Now, the circumstances of those cases varied widely.

18 They didn't by any means only involve clients in

19 custody, and indeed in some of those cases outcomes

20 varied. There were in some cases examples where there

21 was cooperation by the complainant, where the complaint

22 was substantiated, but of course there were many others

23 where dispensation was granted.

24 Now, one of the questions we have tried to

25 explore -- and we have obtained some evidence on, which

86


1 you will consider in due course -- is whether that

2 picture conformed broadly to a more general picture in

3 Northern Ireland at the time.

4 The view one gets from the files is that amongst her

5 profession, she is not remarkable, as it were, in the

6 number of complaints that were made by her on behalf of

7 her clients, and indeed in the evidence from experienced

8 officers, experienced in the G Department of

9 investigation, as far as we can tell, one doesn't

10 discern a particular point being made about the high

11 rate of complaints. That is not, however, to say that

12 the files and the evidence that has been provided do not

13 reveal the views of some officers, senior officers in

14 some cases, about Rosemary Nelson's complaints generally

15 and the approach that they perceived her to be taking in

16 relation to complaints.

17 There is undoubtedly a suggestion or flavour in some

18 of those comments that officers, or some of them, saw

19 these complaints, or some of them, as having a political

20 dimension and a political purpose.

21 Now, sir, I would like to look at just one or two

22 examples of that, if I may. The first is in

23 file RNI-201. This is a relatively early complaint made

24 by Shane Duffy in 1994, and to be absolutely clear about

25 this it is not a complaint on which we are going to

87


1 spend any great time, but it is interesting because of

2 the comments made on the file.

3 He alleged that on 18th June that year -- I'm sorry,

4 I haven't given you the page reference because I am the

5 only man with the file in the room. It is RNI-201-021,

6 please. There is the first of the documents giving

7 details of incidents on 18th June, which took place in

8 Victoria Street in Lurgan, and you will see that

9 a charge was made of disorderly behaviour. The

10 suggestion is made there that the allegations which he

11 was making referred to what had happened in the arrest.

12 Now, could we look, please, at RNI-201-025, the

13 allegation that Mr Duffy was making that he had been

14 assaulted in the process of his arrest. Now, the

15 investigating officer interviewed him and another

16 witness, and two officers tendered previously prepared

17 statements and made replies to questions. And here is

18 a summary by the investigating officer of the way he saw

19 the matter at the first stage, and he has explained in

20 the last paragraph, you will see, that he believes an

21 interview with the complainant was necessary.

22 Now, if we turn to RNI-201-030, please, this is the

23 investigating officer, his name and signature at the

24 bottom, his report, and he goes through the detail of

25 the allegations and refers in the second paragraph to

88


1 a brief letter from the complainant's solicitor, and

2 says in the second sentence:

3 "Although a series of letters were sent to the

4 complainant's solicitors as well as a telephone

5 conversation between the solicitor's secretary and

6 investigating officer, the complainant did not cooperate

7 with the investigating officer while related criminal

8 proceedings were pending."

9 Then it refers to those proceedings. The charge was

10 in fact dismissed at the Magistrates' Court, as you will

11 see. It was after that that the complainant gave

12 a statement.

13 So pausing there, in a sense it is consistent with

14 what we have seen and what Dr Hayes reported that there

15 would be no cooperation in some cases until, as it were,

16 the main event, the proceedings, had been concluded.

17 But here, unlike in some cases, in fact once the

18 criminal process had been completed, the complainant did

19 give a witness statement.

20 Then there is a reference to the witness, who also

21 attended for interview, a medical report being taken and

22 you will see in the penultimate paragraph in the box,

23 the statement about the interviewing he had done of the

24 officers and his opinion that they had given an honest

25 account of their involvement with the complainant and

89


1 gleaned no evidence to suggest or suspect that they are

2 concealing any issue.

3 Then there is a summary of the allegation and

4 counter-allegation, and at the bottom a recommendation

5 in these words:

6 "It is the considered opinion of the investigating

7 officer that the allegations are well prepared,

8 carefully concocted Republican propaganda aimed at

9 discrediting the police officers involved in his arrest.

10 I, therefore, recommend that this file be marked, 'No

11 Prosecution'."

12 I should, before I leave this, take you on to the

13 next page, RNI-201-031. One of the features of these

14 documents is that they leave the investigating reporter

15 very limited amount of space in order to express his

16 views. This is, in fact, the continuation of the box,

17 lest you should think that his summary of the evidence

18 was incomplete. In fact, there is a whole further page

19 of his analysis and very detailed comments about the

20 evidence that he had considered. But going back to the

21 page RNI-201-030, please, the recommendations that he

22 makes are contained, and only contained, in the final

23 sentence:

24 "I recommend that this file be marked 'No

25 Prosecution'."

90


1 The first sentence is addressed to a quite different

2 point. There is no recommendation in it; instead, an

3 expression of an opinion which fits, you may think, with

4 what I suggested, and the way in which some officers,

5 and this particular officer, regarded the complaint and

6 the way it was put forward and how they saw the

7 motivation behind it.

8 Now, sir, can we look on, please, to file RNI-215,

9 and I think the relevant page is RNI-215-007. By way of

10 background, this was another complaint of an assault,

11 this time made by a client in July 1997, so very much

12 within our period of interest. I am so sorry, but

13 before we look at RNI-215-007, can we look, please, at

14 RNI-215-003. (Displayed)

15 I am looking at the details of incident box:

16 "On 29th July 1997, the complainant's solicitor

17 wrote in the following terms:

18 "'We have been instructed by the above-named in

19 relation to injuries he sustained on 15th July 1997 by

20 police officers in Lurgan.'.

21 "It was not until 12th November 1997 that the

22 solicitor wrote and clarified that this was to be

23 treated as an official complaint against the police. No

24 further worthwhile information has been forthcoming. It

25 is believed that this complaint may refer to the

91


1 complainant's arrest for disorderly behaviour and

2 assault on police on 14th July 1997."

3 If you then, please, look at RNI-215-004, now, in --

4 well, it is actually the third box on that page -- you

5 will see the reference to the investigating officer, the

6 ciphered name, P146, and this is the officer, I think I

7 am right in saying, who is to feature very large indeed

8 in some of the complaints with which we are particularly

9 concerned.

10 What is recorded there is that the Chief Inspector

11 sent a letter by recorded delivery to the complainant's

12 solicitor on 21st November requesting that her client

13 attend for interview on 5th December, a copy was also

14 sent to the complainant, and a telephone call comes in

15 on the 2nd from Mrs Nelson's office to say the interview

16 was cancelled and couldn't take place until the New

17 Year. A further letter was sent on 3rd December, and

18 plainly at the time of the report, which I think is in

19 fact -- yes, it is -- on 1st January, an impressive

20 dedication, which we see at page RNI-215-003, no

21 response had been received.

22 Now, turning back, then, to RNI-215-007, please, the

23 box, the main box here talks first of all about the

24 relevant date, saying that he was injured on the 14th,

25 not on the 15th, and then this comment:

92


1 "The complainant's solicitor has been very dilatory

2 in confirming that this was an official complaint

3 against police. The absolute minimum of information has

4 been given and even that information is questionable.

5 Furthermore, the position regarding a possible interview

6 with the complainant remains far from satisfactory."

7 Now, in fact I should record, as is obvious from the

8 next pages, that the matter did not end there and the

9 investigation continued under the guidance of another

10 investigating officer. And I believe that the end

11 result was that the complaint was not upheld.

12 I should mention before leaving these two, however,

13 in relation to the first of these little complaints

14 I have shown you, actually it looks as though some

15 disciplinary measures were recommended against two of

16 the officers involved; I think either admonishment or

17 a constructive discussion was the disciplinary outcome

18 based on the investigating officer's report. And I

19 think it is also right to say -- I should have made this

20 clear earlier -- that the result of the case, the

21 Shane Duffy case I mentioned, was in fact that, whereas

22 the complaint had been dealt with in the way that I have

23 described, there was civil litigation which was settled.

24 And I should, I think, show you that at RNI-201-036.

25 (Displayed)

93


1 This is an internal memo and it reveals, it shows

2 going down the page the various points arising in the

3 case, in the defence of it, and the rationale for

4 a decision, you see at the end, "given all the above, it

5 was felt", for the settlement of it. RNI-201-037, top

6 of the page:

7 "Counsel advised reserve of 20,000 but settlement

8 was secured in the sum of 7,500."

9 Again, I should have mentioned this earlier, this

10 shows what Dr Hayes pointed out, namely the close

11 connection between complaints and civil actions.

12 Now, sir, the next of this series of samples that I

13 would like to show you is in RNI-217 and it concerns

14 a case in which, on 3rd September 1998 -- so we have

15 moved now much further forward -- there is a complaint

16 made by Rosemary Nelson about an allegation, she says,

17 which took place on 29th June that same year, 1998, and

18 also said -- and this is a common feature of the

19 correspondence files -- that a complaint from her client

20 would be forthcoming.

21 The investigating officer here was

22 Chief Inspector Nairn and this is a good example of

23 attempts being made to encourage people to make

24 statements and in fact it not always succeeding.

25 Now, so far as the details of the complaint are

94


1 concerned, the letter I have just mentioned is at

2 RNI-217-248:

3 "We refer to our above-named client who wishes to

4 lodge a complaint in relation to an incident which took

5 place on 29th June last in the Kilwilkie Estate of

6 Lurgan.

7 "I have confirmed that I am endeavouring to obtain a

8 full written statement from my client herein and shall

9 forward same to you upon receipt at my office."

10 Now, we then see, at RNI-217-242, the same file, the

11 statement made in due course -- you see dated

12 11th November -- by the Chief Inspector who was charged

13 with the investigation, and he recites the attempts he

14 made to correspond, and says:

15 "On 24th September, I sent a fax letter to

16 Rosemary Nelson requesting an interview with the

17 complainant on 13th October."

18 Now, one of the problems of our technology is that

19 it is impossible to have one page open and keep flicking

20 on through the file, but sir, I will try to resist the

21 temptation to be constantly jumping backwards and

22 forwards. But he says, going back to this passage:

23 "She did not attend. On 19th October, I sent

24 a second fax letter to Rosemary Nelson requesting

25 further information in relation to the complaint. No

95


1 such information was received. That letter advised

2 Rosemary Nelson of the conditions of regulation 17."

3 So that is, as it were, fair warning that

4 consideration might be given to a dispensation in this

5 case:

6 "On 3rd November, a letter was received from

7 Rosemary Nelson stating that endeavours were being made

8 to contact the complainant."

9 I would like to show you those in order, please.

10 The first at RNI-217-253:

11 "24th September. I refer to your letter of

12 3rd September. I now enclose a copy of a letter which

13 I have sent to your client on this date."

14 You can see that letter at RNI-217-251. Thank you.

15 And you will see in the fourth paragraph:

16 "Please arrange to be present at Lurgan RUC station

17 at 2 pm on Tuesday, 13th October."

18 Then, please, RNI-217-255:

19 "I refer to my letter of 24th September to which

20 there has been no reply. I now enclose a copy of a

21 letter which I have sent to your client on this date."

22 That is the letter which sets out -- it is at RNI-217-254 --

23 the warning about dispensation, and that is in the

24 penultimate paragraph:

25 "Unless you are prepared to make contact with me by

96


1 6th November to provide assistance with the

2 investigation, application may be made to the

3 Independent Commission for Police Complaints requesting

4 a dispensation under regulation 17 on the grounds that

5 a satisfactory investigation cannot be completed on the

6 evidence presently available."

7 Then finally, the response comes in from

8 Rosemary Nelson dated 2nd November, and this is at

9 RNI-217-257, addressed to the Complaints and Discipline

10 Department at Gough:

11 "We refer to your fax transmission of 19th October.

12 Endeavours are being made to contact the complainant and

13 we would ask that you bear with us in this regard."

14 Now, turning back in the file, the report prepared

15 by the investigating officer begins at RNI-217-235 in

16 the same file, and you will see that the detail in

17 relation to the alleged incident is very, very spare.

18 Turning on to RNI-217-236, there, in the familiar

19 box, he recites the attempts to contact, ending with the

20 plea that they should, as he puts it, "bear with us".

21 And then moving on to 238, the large box there says:

22 "No police have been interviewed due to the

23 non-cooperation of the complainant."

24 That leads him to his conclusion at RNI-217-239:

25 "A letter of complaint from Rosemary Nelson dated

97


1 3rd September states:

2 "'Our client wishes to lodge a complaint in relation

3 to an incident on 29th June last in the Kilwilke Estate

4 of Lurgan.'

5 "This poses the following questions ..."

6 Then they are all set out:

7 "The solicitor and complainant have failed to

8 cooperate with the investigation. In her letter of

9 2nd November, Rosemary Nelson states 'endeavours are

10 being made to contact the complainant -- bear with us'.

11 History shows that Rosemary Nelson rarely cooperates

12 with a police investigation. This makes an

13 investigation virtually impossible. Letters of

14 complaint of this type, typical of this solicitor, are

15 nonsense and a waste of valuable resources. This matter

16 is clearly incapable of investigation."

17 Now, these are plainly matters to be explored with

18 the witness when he comes to give evidence to us. He

19 says in his statement, he makes some comments about this

20 comment in his report, and we can see that at

21 RNI-841-162. (Displayed) In paragraph 14:

22 "There were certainly a couple of firms of

23 solicitors who, from my experience, did not always

24 cooperate with the investigation after writing an

25 initial letter of complaint. The firms who were

98


1 involved in the bulk of these complaints were

2 Rosemary Nelson's firm and another firm on the

3 Nationalist side. I think there may possibly have been

4 slightly more cooperation on the Unionist side, but

5 again, it was not always the case. The only accurate

6 way to ascertain which firms of solicitors were

7 reluctant to cooperate would be to go through all the

8 complaint files and calculate the number of complaints

9 not taken forward after the initial letter."

10 Quite so. Can we look on, please, to RNI-841-163

11 (displayed) and paragraph 18, which is of importance,

12 you may think, in assessing these matters:

13 "I never met with or spoke directly to

14 Rosemary Nelson, nor can I recall who her clients were.

15 I cannot recall which complaints she may have brought on

16 behalf of her clients that I may have been responsible

17 for investigating or how many, but I am sure that there

18 were some. I cannot recall any of Mrs Nelson's clients

19 attending for interview after an initial complaint had

20 been made."

21 Now, sir, the final sample I would like to show you

22 is in file RNI-221 and this concerns a client,

23 a ciphered client, C206. Now, this client, if we could

24 look, please, at RNI-221-003, I will be dealing with

25 later because he, indeed, the previous year made an

99


1 allegation which formed part of what we call the LAJI

2 complaints, the Lawyers Alliance for Justice. So we

3 will be returning and seeing his ciphered name at that

4 stage.

5 However, this is a separate and distinct matter of,

6 in comparison, minor importance, but it does show again

7 the sort of points that feature not only in our files

8 but in Dr Hayes' report.

9 It is dated 19th September and there is the client's

10 cipher:

11 "I write to make a complaint against [a constable]

12 of Lurgan RUC station in relation to his lack of

13 civility in answering questions. In Market Street,

14 Lurgan today he detained my above-named client and when

15 I telephoned Lurgan RUC station to make enquiries about

16 my client, [the constable] refused to supply information

17 and I had to ask certain questions three times. I do

18 not appreciate this kind of behaviour when I am

19 representing clients. Please treat this as a complaint

20 against the constable."

21 On any view this is at the low end of the scale, but

22 as Dr Hayes pointed out, the system dealt with

23 complaints from what would appear to be a fairly low

24 level, fairly minor complaints, to very, very serious

25 matters indeed.

100


1 So the system was put into operation and, of course,

2 the result was that decisions had to be made about who

3 would investigate it, whether it would be supervised or

4 not, just as if it had been a very serious matter. And

5 so at RNI-221-009, the same file, the Commission writes

6 to the officer, the Assistant Chief Constable in charge

7 of the G Department, and sets out here its decision.

8 And perhaps unsurprisingly, the decision is not to

9 supervise this particular complaint, and they ask to be

10 kept informed.

11 Now, from then on in the file we see the continuing

12 attempts of the investigating officer to move forward

13 the investigation. At RNI-221-011, we have a letter to

14 Rosemary Nelson of 19th October asking her to attend, in

15 the third paragraph there, on 3rd November because of

16 course this was a complaint in which she was the

17 complainant. The complaint was about the way in which

18 the constable had behaved towards her.

19 Then, moving to the next page, RNI-221-012, here is

20 the response:

21 "I refer to the above and to your letter of

22 19th October. I would be perfectly willing to prepare

23 and supply a comprehensive statement herein. This will

24 be forwarded to you in the near future. I can confirm

25 that I have no objection to the usual police notice

101


1 being appended thereto."

2 Just pausing there, it is an interesting aspect of

3 this letter that here, unlike in the supervised cases,

4 which we will look at, where the people tendering

5 prepared statements before or rather instead of

6 interview were the officers being investigated. Here,

7 Rosemary Nelson herself, as it were, from the other

8 side, does not accept the invitation to attend for

9 interview but instead says that she will supply

10 a statement. Indeed, you will have noted that there is

11 no reference at all to the request in the letter of

12 19th October that she should attend for interview.

13 The next document, please, RNI-221-013. (Displayed)

14 The investigating officer continues his attempts:

15 "I refer to my letter of the 19th which requested

16 your attendance at Lurgan RUC station regarding your

17 complaint against the police. You did not attend for

18 interview.

19 "I must inform you it may not be possible for me to

20 carry out a satisfactory investigation until I have had

21 the opportunity of discussing the complaint with you.

22 Unless you are prepared to make contact with me by

23 26th November to provide assistance with the

24 investigation, application may be made to the

25 Independent Commission for Police Complaints requesting

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1 a dispensation."

2 So a similar formulation to the one we have seen

3 before. And the deadline there, you will see, is

4 26th November.

5 We looked at RNI-221-015 (displayed),

6 Rosemary Nelson's response:

7 "We are in receipt of your fax transmission of

8 4th November and can advise that our Mrs Nelson does not

9 wish to elaborate on the complaint already made."

10 Now, that was as clear as could be, you may think,

11 and so we then turn on to see what the investigating

12 officer made of it at RNI-221-032. (Displayed)

13 This is his report, and in the details of incident

14 he says:

15 "In a letter of complaint dated 19th September,

16 Rosemary Nelson alleged a refusal to supply information

17 by the constable."

18 Then moving on, at RNI-221-033 he solemnly recites

19 the attempts to get cooperation. Then, at the top of

20 RNI-221-035, he deals with the position of the officer.

21 The officer had been served with the caution and the

22 notice that we have seen before, but it was explained

23 here by the vetting officer he has not been interviewed

24 due to the vague nature of the complaint and

25 non-cooperation by the complainant to attend for

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1 interview. And this leads to the conclusion at

2 RNI-221-036 which sets out the history. First of all,

3 it lists the number of issues raised in exactly the same

4 way in fact that he did with the earlier complaint we

5 looked at, and then makes these comments:

6 "These issues can only be clarified by the

7 complainant. She failed to attend for interview when

8 invited and, in a letter to me dated 13th November,

9 stated she did not wish to elaborate on the original

10 letter of complaint. On that basis, it would be unfair

11 and arguably unwarranted to interview the constable on

12 such a nebulous complaint lacking in elementary but

13 pertinent detail. Such is this solicitor's wont. The

14 complaint, in my view, therefore, lacks credibility and

15 prima facie is incapable of meaningful investigation."

16 Now, again, this is a matter taken up with the

17 witness, unsurprisingly, in his witness statement. Can

18 we look, please, at RNI-841-164? (Displayed)

19 This is where he deals with the complaint that

20 I have just shown you. Can we turn over, please, to

21 RNI-841-166. At 27, he deals with the complaint itself,

22 and the third sentence:

23 "I have been asked whether or not it was common to

24 receive complaints of misconduct directed towards

25 solicitors. In my experience, this was unusual. I

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1 would say that 99 per cent of solicitors complained on

2 behalf of their clients."

3 Then paragraph 28, please:

4 "I have no recollection of Rosemary Nelson or any of

5 her clients coming forward for interview in support of

6 any complaints. I have been asked to comment on this.

7 I was duty bound to investigate complaints and I was

8 very willing to investigate any complaint of improper

9 behaviour. If certain individuals chose not to provide

10 as much information as they possibly could in support of

11 a complaint, that was a matter for them. I did not find

12 it in the least bit frustrating. My duty was to follow

13 the standard procedures in dealing with complaints and

14 attempt to obtain the standard of evidence that was

15 required to deal with the complaint. I followed the

16 same process and procedure whoever brought the

17 complaint."

18 As I have already observed, the same process, the

19 same procedure whatever the nature of the allegation.

20 Now, sir, just to complete the picture, to show how

21 this happened even in such a case, on RNI-221-053, we

22 see the next stage (displayed).

23 Addressed to Rosemary Nelson:

24 "I refer to the complaint made by you on 1st October

25 which was recorded and vetted. The Chief Constable has

105


1 asked me to advise you that the matter has been

2 investigated and the papers sent to the ICPC, and you

3 will be informed of the result in due course."

4 That happens at RNI-221-055:

5 "Dear Mrs Nelson, I refer to the complaint which you

6 made alleging that a police officer was uncivil to you

7 and refused to answer questions regarding your client on

8 19th September. The Commission has been informed that

9 you have not been available to attend for interview with

10 the senior police officer who was appointed to carry an

11 investigation into the matter and that no further

12 information has been provided by you. As a result, the

13 Assistant Chief Constable takes the view, in accordance

14 with the legislation, that it is not reasonably

15 practicable to complete the investigation into your

16 complaint. On the basis of the papers submitted, the

17 Commission, which is totally independent of the Royal

18 Ulster Constabulary, accepts the impracticability of

19 completing a satisfactory investigation."

20 That is dated 19th January 1999.

21 Now, sir, clearly that particular case is, I would

22 suggest, a striking one, because first its complaint,

23 although involving the client I mentioned earlier, in

24 fact it is a complaint by Rosemary Nelson herself and

25 about her own treatment, as she saw it, by a constable

106


1 at the local police station.

2 It does seem clear that once she had sent off the

3 letter of complaint, for whatever reason she was not

4 minded to have to do any more, not minded to take part

5 in the complaint process. She, by implication, declined

6 to be interviewed. But her initial response, which was

7 to say that a full statement would be forthcoming, was

8 then followed, if you remember, later in, I

9 think, November by a clear statement that she did not

10 intend to say any more.

11 So this is not a case, therefore, where one is

12 looking at a complainant's solicitor's advice to

13 a client, as in the cases mentioned by Dr Hayes in his

14 report; this is a solicitor who herself initiates the

15 complaint and then, on her own behalf, not by way of

16 advice to a client, elects no longer to pursue the

17 matter.

18 However, what we see is that the system has to, or

19 does in this case at any rate, carry on. So that all of

20 the stages that we have seen in the material in the

21 guidance, in the regulations, are travelled through.

22 There is a report prepared, the matter goes up to the

23 Commission, a decision is made and that decision is

24 conveyed exactly as it would have been if there had been

25 cooperation, attendance for interview, et cetera.

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1 In this particular case, you need, I would suggest,

2 to see those documents to get an insight into why it

3 was, in the complaint, in the report compiled by the

4 investigating officer, that he allowed himself the

5 remarks that he did.

6 Now, sir, that is the end of the very brief survey

7 of the smaller cases that I wanted to undertake. The

8 matters that I now wish to turn to are the specific

9 complaints which we have focused on and which are

10 particularly pertinent to our List of Issues.

11 They fall into four groups and that is how I propose

12 to treat them. The first is the group of complaints

13 that was ultimately investigated by Commander Mulvihill.

14 That group is made up of three complaints: first, the

15 LAJI complaint I have mentioned before; second,

16 complaints made by Rosemary Nelson and Colin Duffy; and

17 lastly, complaints by a ciphered client, witness, C208

18 and Rosemary Nelson.

19 Now, in terms of their content -- that is the

20 content of the allegations -- we will see that they are

21 a mixed bag, and the same is true of all the various

22 types of complaints we are going to look at in this

23 survey.

24 The second group is a group of miscellaneous

25 complaints against police officers. The third group of

108


1 two involves soldiers and investigation by and under

2 Army procedures, and the fourth group is the

3 Garvaghy Road 1997 complaints.

4 May I make some general introductory remarks about

5 all these complaints. First, as far as we can tell,

6 save in the case of Colin Duffy in June 1997 and the

7 complainant Shane McGrory in December that year, none of

8 the complainants was charged following their arrest,

9 questioning and detention.

10 Secondly, a substantial proportion, but by no means

11 all, of the complaints arose as a result of detention in

12 the holding centres. You remember that I have outlined

13 to you in very broad outline the particular conditions

14 which existed there as a result of emergency

15 legislation, and although there are substantial

16 complaints so far as we are concerned, emanating from

17 Gough Barracks, Gough Detention Centre in February 1997,

18 and Mr Duffy's case in June, there are other cases which

19 fall both in the detention centre and, as it were, the

20 more ordinary run of the mill category. For example,

21 Shane McCrory, whom I have already mentioned

22 in December, that was, as it were, a straightforward

23 question of an allegation at a much lower level. There

24 was no terrorist allegation being made.

25 But we also have, in 1998, two complaints arising

109


1 out of interviews at Castlereagh. Now, I mentioned

2 yesterday the possible correlation between incidence of

3 complaints from holding centres of conduct during

4 interviews and the changing position on recording video

5 and audio recording.

6 Suffice it to say that, of course, complaints that

7 we are considering in this next run, only one, the

8 complaint in June from Castlereagh, came after the

9 beginnings of the change that I referred to earlier, if

10 you remember, in relation to video, which, as far as we

11 can see, kicks off on, I think, 10th March that year.

12 There are certainly none of the ones that we are

13 looking at in the second half of 1998 and none in the

14 early part of 1999, before Rosemary Nelson's murder.

15 Now, sir, in our List of Issues a distinction is

16 drawn between threats on the one hand and other types of

17 behaviour or comment on the other. As we go through and

18 I explain the nature of the specific comments alleged to

19 have been made, you will see that it is sometimes

20 difficult. There is room for differences of view about

21 what constitutes a threat, a threat either to life or to

22 personal safety.

23 It must also be remembered that a number of threats

24 which appear in our papers and which are dealt with in

25 witness evidence were not the subject of complaints.

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1 They took place in very different circumstances: the

2 delivery of letters, the making of threatening telephone

3 calls, a whole variety of situations were involved. And

4 so that is a separate matter to be considered when

5 looking at the totality of questions in the List of

6 Issues.

7 As I have said before, the end result in each of our

8 cases was that the complaint was not upheld. The themes

9 which I have tried to point up in this introductory

10 section are present here too. There is often a delay

11 between the events which are the subject of the

12 complaint and its initiation, the beginning of the

13 complaint. There are examples of failure to attend for

14 interview, both on the part of the client complainant

15 and on the part of Rosemary Nelson herself.

16 There are many examples of the wider publication of

17 complaints by Rosemary Nelson: to NGOs, to the

18 Government, to the Irish civil servants and to the

19 media. In that way, as I will show you, her approach in

20 the field of complaints mirrored the approach that we

21 saw yesterday starting in June 1997, after the arrest of

22 Colin Duffy and charging for the murder of the two

23 police officers in Lurgan.

24 The investigation papers show that the officers

25 against whom the allegations were made, or as

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1 I explained earlier, against whom the investigating

2 officer decided that the complaints had been made --

3 because that was, as we will see, sometimes what had to

4 happen -- those allegations were denied. They were

5 denied in interview, in witness statements provided

6 during the investigations and they have been denied in

7 evidence to us.

8 We have, as I have said, statements from some of the

9 client complainants, and in those statements they have

10 repeated the allegations which form the subject matter

11 of their complaints. In most, therefore, if not all

12 cases, the issue for the investigating officer was then

13 whether one side's word should be taken against the

14 other. There were, other than the interview notes, of

15 which we have hundreds and hundreds and hundreds of

16 pages in these files, no independent records one way or

17 the other. So it is a matter of, as it were, one side's

18 word against the other.

19 Now, sir, so far as the first group then, it is

20 a threesome: The LAJI complaint; the complaints by

21 Rosemary Nelson and Colin Duffy arising out of the

22 arrest in June; the complaint by the ciphered client,

23 which is the one coming from Castlereagh in June and by

24 Rosemary Nelson.

25 Now, in the analysis of that as a preliminary

112


1 matter, you may think that of these complaints one

2 certainly amounts, the words alleged to have been used

3 to the client amount to a threat to the life of

4 Rosemary Nelson. By contrast, the rest -- and

5 I summarise, obviously -- are derogatory comments of one

6 kind or another and there are also alleged suggestions

7 of her association with the Provisional IRA.

8 Now, sir, the history begins, so far as the LAJI

9 complaint is concerned, in March 1997. Can we look,

10 please, at RNI-202-002. (Displayed) Thank you.

11 Now, sir, this is the first LAJI document that I

12 think we have seen on our screens and it may be that,

13 when I first mentioned what LAJI stood for, I got it

14 wrong. In fact, I almost certainly did. But there we

15 are, it is Lawyers Alliance for Justice in Ireland Inc,

16 in fact. Sorry to have got that wrong.

17 It is dated 13th March and this is a letter -- could

18 we just turn the page, please, to RNI-202-003 -- from

19 Edmund Lynch, who is the national coordinator of the

20 organisation.

21 Could we turn back, please, to RNI-202-002. He

22 features large in the Inquiry bundles in part 1 and has

23 provided a witness statement to the Inquiry, and will be

24 called to give evidence later in these hearings.

25 He is writing to Sir Louis Blom-Cooper and he has

113


1 also given us a witness statement and will also be

2 called to give evidence.

3 Now, Sir Louis at this stage -- can we go back to

4 the letter, please? Thank you -- as it says there, is

5 the Independent Commissioner for the Holding Centres,

6 and in that role he had over a number of years a part to

7 play in some of the long-running issues that I mentioned

8 earlier; namely concern about the recording of

9 interviews, concern about the extent to which the

10 conditions in which the accused were held in the holding

11 centres did not resemble or match conditions in which

12 accused persons facing allegations of a very, very

13 similar kind would be held in England at that time. He

14 is, as you know, sir, an English barrister, Queen's

15 Counsel.

16 He reported each year -- and we have some of his

17 reports in the bundle -- about his visits to the holding

18 centres and made recommendations and gave advice about

19 changes that he thought should be made.

20 He also has a minor role to play -- I hope you won't

21 mind me saying that -- in the Curumaswamy saga, which we

22 will come to, because his name was brought in in the end

23 by both sides of that particular dispute to support

24 their position.

25 But this is the start of this complaint, and --

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1 THE CHAIRMAN: I think it would be good idea before you

2 embark upon it -- at quarter to four.

3 (3.30 pm)

4 (Short break)

5 (3.45 pm)

6 THE CHAIRMAN: Yes, Mr Phillips.

7 MR PHILLIPS: Sir, could we have RNI-202-002 back on,

8 please. (Displayed) So this is the letter from Mr Lynch

9 dated 13th March:

10 "Dear Sir Louis, during a recent visit to Ireland,

11 I received some very disturbing information upon which

12 your assistance is required.

13 "A very effective solicitor, Mrs Rosemary Nelson,

14 has been subject to death threats emanating from an RUC

15 detective stationed at Gough Interrogation Centre.

16 "These threats have been communicated to Mrs Nelson

17 through several clients during the course of their

18 interrogation.

19 "This information is communicated to you in the

20 strictest confidence.

21 "Initially, Mrs Nelson considered the threats to be

22 attempts at intimidation for her work on behalf of

23 various clients, including Colin Duffy of Lurgan. She

24 did not believe they would be acted upon. However, the

25 threats have become more insistent and ominous of late.

115


1 "Would you kindly turn this information over to the

2 Attorney General's office for an appropriate criminal

3 investigation. Please do not rely upon the RUC to

4 investigate one of its own members.

5 "Witnesses will come forward and testify under oath

6 provided they have some assurance of protection from

7 reprisal.

8 "I would appreciate hearing from you at your

9 earliest convenience as to the identity of the

10 individual in the Attorney General's office to whom

11 evidence may be submitted.

12 "Sadly, there seems to be a repeat pattern of the

13 events which led to the killing of solicitor

14 Pat Finucane in 1989."

15 Now, sir, a number of points about this. The letter

16 ranges far and wide; in other words, although it begins

17 with the question of death threats emanating from an RUC

18 detective stationed at Gough, it moves from that point

19 to cover much more general aspects of Mr Lynch's

20 concerns.

21 As far as we can tell -- and there is material to

22 support this in other files that, for the moment at any

23 rate, I don't wish to detain you with -- the origin of

24 this original complaint or letter is in the events which

25 have taken place in February at Gough Barracks when

116


1 a number of Rosemary Nelson's clients were detained and

2 four of the complaints with which we are concerned

3 originated in that period.

4 Those complaints were in turn drawn to the attention

5 of NGOs and others, and it is in that way, as far as we

6 can see, that Mr Lynch came to raise a case in this

7 fashion.

8 The next thing I wanted to stress to you is in fact

9 of course this letter is, I would suggest, a letter

10 about threats. It is a letter about threats put in

11 a very general context. There is a reference to several

12 clients and then the matter opens out even more widely

13 by setting the threats in the context of her work.

14 The suggestion is, as you see, that the threats have

15 become more insistent and ominous of late.

16 Now, what Mr Lynch requests is that there should be

17 a criminal investigation, and asks for Sir Louis to pass

18 the matter on to the Attorney General.

19 Now, although there are various steps before the

20 matter enters the complaints process, one can see

21 already, I would suggest, that this is a complaint which

22 is quite out of the ordinary run. The complaint, if

23 that is what this letter is, is not made by the client

24 or the clients, plural, it is not made on their behalf

25 by their own lawyer; it is initiated by Mr Lynch working

117


1 for this not-for-profit organisation based in the

2 United States of America. And what he does is to refer

3 to allegations about death threats without obviously

4 providing any particulars or detail at this stage and,

5 having put those threats in a wider context, to ask for

6 the appropriate criminal investigation.

7 He does not put his request as a complaint. He

8 makes no reference whatsoever to the complaints system.

9 What he is looking at is allegations which would

10 disclose criminal conduct, death threats being made,

11 threats to kill in this case the solicitor for some of

12 the detained clients.

13 But as a result of a process that I will show you,

14 this did indeed become a complaint; it is referred to in

15 the subsequent documentation once it enters the great

16 machine, as the LAJI, Lawyers Alliance for Justice in

17 Ireland complaint, and that machine, once it starts

18 rolling, is a machine concerned with complaints.

19 Now, of course, as Dr Hayes has reminded us, the

20 machine is capable and must be capable of dealing with

21 complaints at all levels of seriousness. But what we

22 will see here is that the focus of energy and attention

23 in this and other cases is on its character as

24 a complaint and not the substance of it, which is an

25 allegation about threat; about the threat to the life of

118


1 another human being, about, even on Mr Lynch's own way

2 of putting, the potential for a criminal offence to be

3 investigated and proceedings taken.

4 So can I just show you how that change took place?

5 Mr Blom-Cooper, or Sir Louis Blom-Cooper, asked his

6 secretary to forward the letter to the Attorney, which

7 he did, and you will see that at RNI-108-109

8 (displayed). Thank you.

9 Sir, this is a letter from the secretary to the

10 Independent Commissioner, and that is why his name has

11 been redacted. He is not a witness and it is addressed

12 to the Legal Secretary to the Law Officers, and you will

13 see that Sir Louis, or his secretary on his behalf, is

14 concerned to put the letter from Mr Lynch in the context

15 of Sir Louis's own reports. And, sir, he says:

16 "Your possession of the Commissioner's latest report

17 should prove to be beneficial in the context of a faxed

18 letter which Sir Louis has just received in confidence

19 from Mr Edmund Lynch (copy enclosed).

20 "You can see that the letter contains very serious

21 allegations and Mr Lynch has specifically requested the

22 Commissioner to bring it to your notice. Sir Louis has

23 asked me to alert you accordingly and to draw your

24 attention to his own comments concerning this subject."

25 Then:

119


1 "The Commission recognises the attendant

2 difficulties both within the present system of

3 investigating this type of complaint and in establishing

4 any practical and acceptable replacement. But as

5 Sir Louis correctly contends, such allegations do need

6 to be addressed and resolved in a timely and

7 satisfactory manner."

8 So with those additions, the matter makes its way to

9 the Attorney General and he directed that the

10 allegations in Mr Lynch's letter should be referred to

11 the complaints department of the RUC. And that is at

12 RNI-202-006. (Displayed)

13 Now, this is the response to the secretary to

14 Sir Louis:

15 "Thank you for your letter of 14th March enclosing

16 the copy letter which Sir Louis received from

17 Mr Edmund Lynch. I note Sir Louis' comments in regard

18 to this subject as set out in the Commissioner's latest

19 report. I have placed the matter before the Attorney

20 who has requested me to refer the matter to G Division

21 of the RUC and also the Independent Commission for

22 Police Complaints. Accordingly, I have written to the

23 Assistant Chief Constable and to Mr Brian McClelland

24 ..."

25 Who was the Chief Executive of the ICPC. In

120


1 accordance with that, on 20th March the letters make

2 their way to Mr McClelland on the one hand and to the

3 Assistant Chief Constable on the other.

4 Can we look first at the letter to Mr McClelland,

5 which is at RNI-202-005 (displayed).

6 This is from the Attorney's chambers:

7 "Sir Louis Blom-Cooper has sent to me a copy letter

8 which he has received from Mr Edmund Lynch. I enclose

9 a copy of Mr Lynch's letter in which he alleges that

10 Mrs Rosemary Nelson, a solicitor, has been subject to

11 death threats emanating from a detective in the

12 Royal Ulster Constabulary stationed at Gough Holding

13 Centre. I have written upon the Attorney General's

14 direction to the Assistant Chief Constable, G Division,

15 so that the police may take the necessary steps as are

16 considered appropriate in order to investigate these

17 allegations and to consider such steps as are

18 appropriate in relation to Mrs Nelson's security. The

19 Attorney General has also requested me to bring the

20 matter to the attention of the Commission, and I enclose

21 a copy of Mr Lynch's letter."

22 Now, sir, even in this letter I think it is

23 possible -- can we see it as it was, please -- it is

24 possible to make some points about the ambit of what is

25 going on. The points are made here, first on behalf of

121


1 the Attorney, that what the letter is about, the

2 substance of the letter, is death threats. And in the

3 paragraph in which he describes what the Attorney has

4 directed him to do in relation to G Department, or

5 G Division, as he puts it, it is put very, very widely:

6 "... so that the police may take the necessary steps

7 as are considered appropriate in order to investigate

8 these allegations and to consider such steps as are

9 appropriate in relation to Mrs Nelson's security."

10 Now, sir, just pausing there. This is, if I may say

11 so, an entirely unsurprising reaction to the letter from

12 Mr Lynch. The letter speaks of death threats to

13 a solicitor in Northern Ireland. It demands criminal

14 investigation. But the Attorney's reaction is: (a) an

15 open one -- in other words, he does not seek to fetter

16 or confine the RUC in any way so far as the nature of

17 the relevant investigation is concerned; and (b), he,

18 without this point having been raised by Mr Lynch,

19 appreciates also that the other side of this is that

20 such steps as are appropriate ought to be considered in

21 relation to her security.

22 Now, the matter is then passed on to the

23 G Department in a letter of the same date at RNI-202-009

24 to the Assistant Chief Constable:

25 "Sir Louis Blom-Cooper has sent me a copy letter

122


1 which he has received from Mr Edmund Lynch. I enclose

2 a copy of Mr Lynch's letter."

3 Then:

4 "The Attorney General has seen Mr Lynch's letter and

5 has directed me to write to you so that the RUC may take

6 the necessary steps as are considered appropriate in

7 order to investigate these allegations."

8 Then the same point is made about consideration in

9 relation to Mrs Nelson's security.

10 Then, sir, the matter, having now been received by

11 the ICPC, begins its progress through the complaints

12 system and the question to bear in mind through the

13 documents and through the history, as we look at it, is

14 this: to what extent have the other aspects expressly

15 raised in the original communication from Mr Lynch and

16 in the two letters from the Attorney's legal secretary

17 been kept in mind, been borne in mind? Are they still

18 being considered? Were they considered?

19 Well, we will come to see that in more detail when

20 we look at the NIO and RUC files that I mentioned on the

21 first day. But our focus will be not on those wider

22 points, but on the question of the complaint and how it

23 was addressed.

24 Note, please, that at the beginning of the

25 complaints process that we are now about to see cranking

123


1 up, there are no details provided at all. So the

2 machine starts, but there are no particulars of the

3 names of the clients, of the dates, of the identities or

4 even a description of the officers involved. The whole

5 thing begins after the Attorney's letters are received

6 into the system with this very, very, very limited and

7 basic amount of information so far as the complaint

8 system is concerned.

9 So far as the other matters raised in the letter is

10 concerned, in a sense, you know, the information that

11 was required was put on the table. But here, the

12 machine has to deal with the information that it has and

13 that is, of course, at this stage at any rate, very

14 limited.

15 So the Commission, at RNI-202-014, writes to the

16 Assistant Chief Constable, passing on the Attorney's

17 letter. And indeed what seems to happen, if you look at

18 RNI-202-016, is that the Chief Executive in responding

19 to the legal secretariat, the Law Officers, confirms his

20 receipt of the letter of 20th March, and says that:

21 "The matter has been forwarded to the Assistant

22 Chief Constable."

23 And encloses for information the Commission's

24 information leaflet explaining the procedures. Rather

25 as if the Chief Executive was treating the Attorney as

124


1 the complainant in the case.

2 Now, what happens at the complaints end initially is

3 this: the Assistant Chief Constable decides that the

4 matter should be taken forward, and we will see his

5 memorandum or rather his Staff Officer's memorandum at

6 RNI-202-017:

7 "Attached papers are forwarded for your attention

8 following discussion between the Superindent and

9 a sergeant."

10 And:

11 "The Superintendent at Gough will appoint a C & D

12 investigating officer to parallel the crime

13 investigation. Investigating officer's details will be

14 forwarded when available."

15 However, despite the decision to take the complaint

16 forward as a complaint in the way set out in that

17 memorandum, it was not originally regarded or dealt with

18 as what is called an Article 2 complaint; in other

19 words, if you remember our consideration this morning of

20 the framework, one of the mandatory investigations under

21 the framework. But instead, an officer was to be

22 appointed, as it says here, to investigate the matter

23 from a criminal point of view and to be shadowed by

24 a complaints and discipline officer. However, we will

25 see in the immediate aftermath of that that there was

125


1 a challenge.

2 Look, first, please, at RNI-202-018. This is to the

3 Chief Executive of the Commission, second paragraph:

4 "The matter is not being recorded as an Article 2

5 complaint. An officer is being appointed to investigate

6 the matter from a criminal point of view and our

7 internal discipline office is appointing a complaints

8 and discipline officer to shadow the criminal

9 investigation for discipline purposes."

10 And yet, if we turn over to RNI-202-019, the

11 Commission, in the first paragraph -- and this is an

12 internal note from the ICPC files:

13 "Upon receipt of enclosures at 3A, I contacted

14 Superintendent MaCauley informing him that the

15 Commission would be objecting to the decision not to

16 regard this matter as an Article 2 complaint. I asked

17 him to review the papers again and assured him that if

18 he was not prepared to have a change of opinion, the

19 Commission would be writing to the

20 Assistant Chief Constable in the strongest possible

21 terms. Approximately 15 minutes after the above

22 conversation, he contacted me stating that he had looked

23 again at the file papers and now took the view that the

24 matter should be regarded as an Article 2 complaint."

25 That meant that the system that we have now seen

126


1 started to go into operation, and the form 17/2 is at

2 RNI-202-023 of this file. You see at the bottom

3 left-hand corner, form 17/2 and the complainant's name

4 is given as Edmund Lynch and his address is given as the

5 LAJI address. And you will see the investigating

6 officer is appointed, Chief Inspector Gamble from the

7 Gough section or branch of G Department.

8 Now, the ICPC indicated that they wished to

9 supervise the complaint, and that is at RNI-202-028, in

10 a letter of 11th April:

11 "I am writing to advise you that the Commission has

12 decided to supervise the investigation of the above

13 complaint and I am undertaking the responsibilities of

14 supervising member.

15 "The supervising member who took on the supervision

16 of this complaint was Miss McNally.

17 Miss Jennifer Mitchell is the staff member who will be

18 assisting me and she should be contacted at your

19 earliest convenience ..."

20 She asks in the penultimate paragraph to be kept

21 abreast of all significant developments.

22 What then happens, again in accordance with the

23 procedures that we have seen, on 21st April the

24 investigating officer writes a letter to

25 Rosemary Nelson. It is dated 21st April and it is at

127


1 RNI-202-033 (displayed). And here we see the way in

2 which the complaint was formally regarded and it is

3 described in these terms:

4 "Dear Madam, a complaint made by the legal

5 secretariat to the law officers, Attorney General's

6 chambers, on behalf of Lawyers Alliance for Justice in

7 Ireland on 20th March has been referred to the

8 Chief Constable ... and I have been instructed to

9 investigate ... it. In order that the investigation may

10 be as complete as possible, I wish to meet you solely

11 for the purpose of discussing the complaint and to

12 obtain details of witnesses and any other evidence."

13 Then in the third paragraph, he says that the ICPC

14 is supervising and the supervisory member may be

15 present:

16 "Please arrange to be present at the Lurgan RUC

17 station at 2 pm on Tuesday, 13th May ..."

18 Then various other practical details are set out.

19 So, sir, at this point, pausing to take stock, the

20 suggestion I made before that this was a most unusual

21 complaint to enter the system, is perhaps borne out by

22 its description in the first two lines of the letter.

23 The complainant is in fact the legal secretariat to the

24 law officers and it is made on behalf of an organisation

25 based in the United States of America. So it would

128


1 appear, therefore, that the letter to Rosemary Nelson is

2 being sent to a witness in the case, rather than the

3 complainant.

4 One also wondered at this stage bearing in mind the

5 advice to the investigating officers that we have been

6 looking at and what they were enjoined to do as

7 expeditiously as possible, what it was that

8 Chief Inspector Gamble had to go on in terms of the

9 nature of this complaint. And the answer is, as far as

10 we can see, simply what was set out in the letter from

11 Mr Lynch, received in the middle of March.

12 Now, it was in fact some months after this, as

13 things turned out, that fuller details of the various

14 allegations against police officers made by clients of

15 Rosemary Nelson in relation to their detention at the

16 Gough holding centre emerged.

17 Now, sir, at this point can I just show you a letter

18 from the Northern Ireland Office at RNI-202-039 to the

19 Chief Executive:

20 "Treat official correspondence."

21 In other words, as I understand it, at any rate,

22 correspondence that could be dealt with by civil

23 servants, as opposed to going into the minister's case

24 for dealing with by the minister or, as it may be,

25 secretary of state:

129


1 "Dear Brian, I would be most grateful if you could

2 give due consideration to both of the enclosed treat

3 official letters."

4 And the one we are concerned with is the one from

5 the senator:

6 "Any background information and an update on events

7 where appropriate would be very much appreciated."

8 We can see the letter which was enclosed at the next

9 page, RNI-202-040, and this is a letter from

10 a United States senator, which goes into some detail

11 about the problems with which we are now all familiar:

12 "Dear Ambassador ..."

13 Addressed to the British Ambassador in Washington:

14 "I would like to draw your attention to the case of

15 Mrs Rosemary Nelson, a solicitor in Northern Ireland.

16 "Mrs Nelson and a number of other solicitors who

17 represent Catholic clients have been the victims of

18 discrimination and harassment during the past several

19 months. I urge you to consider the charges made by

20 Mrs Nelson and request Sir Nicholas Lyell, Attorney

21 General of Great Britain, to investigate the situation.

22 "Mrs Nelson has indicated that she has received

23 several threats against her life from an officer the

24 Royal Ulster Constabulary stationed at the Gough

25 Interrogation Station. Several clients have stated that

130


1 during the course of their interrogations, Mrs Nelson's

2 life was threatened. Although these threats were not

3 made directly to Mrs Nelson, they have been terrifying

4 nonetheless.

5 "Initially, Mrs Nelson believed these threats to be

6 an attempt to intimidate her from working on behalf of

7 various clients. As a result, she dismissed them as

8 trivial matters which would not be acted upon. However,

9 these threats have recently become more insistent and

10 ominous, causing Mrs Nelson to fear for her safety.

11 "In the interests of seeking justice in

12 Northern Ireland, I hope that the Attorney General will

13 consider instituting a criminal investigation of

14 Mrs Nelson's charges as well as the threats received by

15 other solicitors in similar situations. In this case,

16 it may not be appropriate to rely upon the RUC to

17 investigate one of its own members."

18 Sir, just a few comments about that, if I may.

19 First, you will see in the second paragraph, and indeed

20 the third paragraph, language very similar to that used

21 by Mr Lynch in his original letter of 13th March. Now,

22 unfortunately, we can't do the flicking backwards and

23 forwards that I would like to do, but I think we will

24 all remember some of the expressions about what had

25 happened at Gough and about the fact that they had

131


1 recently, the threats this is, become more insistent and

2 ominous.

3 Now, this letter -- again, putting the matter very

4 broadly in the penultimate paragraph -- comes, as I say

5 again, not from Northern Ireland but from the

6 United States. It comes from an elected politician in

7 the Senate. It is addressed to the British Ambassador

8 and, unsurprisingly, therefore, it finds its way into

9 the NIO police division, which is what we saw on the

10 previous page.

11 Sir, this is where the question of overlap comes in

12 again, because we will see when we come to look at the

13 background to the NIO's initiative in May 1997 that

14 I mentioned at the outset of my opening, that it wasn't

15 the only one, but this was one of the letters which

16 prompted officials to raise concerns. And the letter we

17 have seen, indeed, of 30th April, from the police

18 division is an example of this.

19 But here we see, as it were, the crossover and it is

20 the same point: the crossover between concern about

21 threats and concern about safety and the business of

22 complaints, because in fact it was a letter in very

23 similar terms, so far as substance is concerned, which

24 is now the complaint advanced from Mr Lynch through the

25 medium of the legal secretariat and beginning to make

132


1 its way through the complaints system.

2 Sir, there is one other document that I would like

3 to look at just to take a snapshot, as it were, at this

4 stage. Could we look, please, at RNI-114-044.

5 (Displayed)

6 Now, this is an extract from a report by Human

7 Rights Watch and we have here just the relevant

8 appendix. The date: May, so shortly after the

9 correspondence we have just been looking at, and you

10 will see here the matter being put very, very broadly

11 and showing us that by this relatively early stage, as

12 far as we are concerned, her case and the concerns about

13 what was said to be intimidation, a pattern of

14 intimidation in the first line, was being addressed and

15 considered in this NGO document.

16 You will see the details set out there. In

17 particular, can I draw to your attention the passage

18 beginning in the fifth line:

19 "Rosemary Nelson reported that over a three to

20 four-week period in early 1997, 12 of her clients had

21 been arrested, and came out of detention at

22 Gough Barracks in Armagh saying that RUC officers had

23 threatened that she was going to be killed."

24 Then there is a substantial quotation from her, and

25 if you follow the footnote number 2 down to the bottom

133


1 of the page, you will see the source for the footnote is

2 an interview with her on the telephone on

3 7th March 1997. Can we see just the footnotes at the

4 bottom of the page, please. It is very small print, I

5 am afraid. Yes, there. Footnote 2 is the one given and

6 there it says:

7 "Human Rights Watch Helsinki, telephone interview,

8 7th March."

9 So that is less than a week before the letter from

10 Mr Lynch, and it is, I think, tolerably clear that these

11 are the circumstances, these are the events, which led

12 to his original letter. But whereas detail has been

13 provided in the telephone interview and in these

14 quotations, written up in appendix H, at this stage, so

15 far as those matters were concerned, (a) no complaint

16 had been lodged, and (b) those charged with the

17 investigation of the matter at the instance of the

18 Attorney on behalf of the American organisation, did not

19 have anything like the information provided to the NGOs,

20 which is recorded in this report.

21 Now, we have seen, I think, the initial attempt to

22 set up an interview. If you remember,

23 Chief Inspector Gamble had arranged one for 13th May,

24 but in fact she did not attend. And we can see that

25 from RNI-202-041, file RNI-202:

134


1 "I refer to my letter of 21st April which requested

2 your attendance at Lurgan RUC station regarding the

3 above-mentioned complaint against the police. You did

4 not attend for interview. I must inform you that it may

5 not be possible for me to carry out a satisfactory

6 investigation until I have had the opportunity of

7 discussing the complaint with you."

8 Then in the final paragraph, the familiar phrases

9 relating the possibility of dispensation.

10 So the Chief Inspector returned to the task later

11 in June and wrote and -- I am so sorry, the appointment

12 was, as we see there, for the 13th -- the deadline he

13 set, I am sorry, was that she should make contact with

14 him by 13th June.

15 In fact on that day, not a moment, as it were,

16 before the deadline, Rosemary Nelson did write back at

17 RNI-202-049. Can we just enlarge that? Thank you:

18 "I refer to the above ..."

19 And you will see the very long title that we have

20 seen before:

21 "... and to your letter of 21st May. Would it be

22 possible for Inspector Gamble to attend at this office

23 in order to discuss the matter on a preliminary basis?

24 I await hearing from you."

25 Again, just pausing there, one can see from

135


1 file RNI-114 that although the complaint was not

2 advancing, the communication between Rosemary Nelson and

3 Edmund Lynch was continuing. And can we start, please,

4 by looking at RNI-114-060.500. (Displayed)

5 This is a letter from Rosemary Nelson:

6 "Dear Ed, many thanks for your faxed correspondence

7 relating to your raising the matter of intimidation at

8 Gough Barracks on my behalf. You will appreciate the

9 importance of this since observation has proved to be

10 the most effective preventative measure in the past. Of

11 late, none one of my clients have been arrested and

12 taken to Gough Barracks, but I would be very much

13 obliged if you could push on with the enquiry.

14 "On a lighter note, when are you coming to visit?

15 I look forward to hearing from you."

16 Then on 21st May, which is the next document,

17 RNI-114-060.501:

18 "I refer to previous correspondence and now enclose

19 a copy of a letter received from the RUC. You will see

20 the RUC intends investigating the RUC in this instance."

21 Then at the next page, RNI-114-060.502, Mr Lynch

22 responds:

23 "Dear Rosemary, I received your note of 21st May and

24 attached letter of 21st April from Chief

25 Inspector Gamble. Attached is a copy of a letter from

136


1 the Chief Executive, Paul Donnelly, of the ICPC. You

2 know better than me how this case should be handled. Of

3 course, it is unsatisfactory that the RUC will

4 investigate itself. However, perhaps in view of the new

5 administration in London and the professed determination

6 to reform the RUC, it might be worthwhile to proceed

7 with the investigation. Of course, you should be

8 represented by counsel and your interview should be

9 conducted at your offices, not at the Lurgan RUC

10 station."

11 So Mr Lynch at this stage in what we know from the

12 previous correspondence, is, as it were, a gap, a gap

13 during which Rosemary Nelson is being asked to attend to

14 be interviewed and did not, and in which her response

15 was to ask for the interview to take place in her

16 office. Here is the man who had initiated the complaint

17 urging her at least to consider taking part, proceeding

18 with the investigation.

19 Now, at about this time there was a change of

20 investigating officer and Chief Inspector Gamble left

21 the department and was replaced by a ciphered witness,

22 P146, and that witness is the witness I mentioned

23 a little earlier, where we saw him investigating another

24 client complaint.

25 We can see the next step in the process at

137


1 RNI-202-046. This is a letter dated 22nd, I think, or

2 possibly 20th June to Rosemary Nelson and from the new

3 investigating officer. He had obviously been in

4 telephone contact and arrangements for another interview

5 time at the Craigavon police station, not Lurgan, were

6 made.

7 This is another of the moments in the case where

8 issues collide and events overlap, because of course

9 this is shortly after the murder of the two police

10 officers in Lurgan and it was, as you no doubt remember,

11 on, I think, 23rd June that Rosemary Nelson's client,

12 Colin Duffy, was arrested and was detained at Gough

13 Holding Centre. It may well be -- one doesn't know, it

14 may well be that Rosemary Nelson was, as a result,

15 unable to attend on the 25th.

16 Now, the arrest of Colin Duffy led, as I have

17 explained, to other complaints in due course, which we

18 also will consider in this section. But so far as this

19 aspect is concerned, the original LAJI complaint, the

20 position was as set out in the letter of 26th June from

21 the new investigating officer at RNI-202-051, where he

22 had spoken to her secretary on that day and it had been

23 explained that she wouldn't be available and a new time

24 was arranged. And in due course, that appointment was

25 also cancelled, and we can see that from RNI-202-058, in

138


1 the same file. Another telephone conversation with the

2 secretary; not available at 2 pm:

3 "You will recall that this date and time was

4 originally suggested by you and that several previous

5 attempts to interview you have been unsuccessful. Your

6 secretary said that you would have to get back to me to

7 arrange another suitable date and time for interview.

8 To date you have not done so. In the meantime, the

9 Lawyers Alliance for Justice in Ireland continue to

10 emphasise the need for a prompt and thorough

11 investigation on your behalf."

12 Because what had happened in the intervening period

13 is that Mr Lynch had sent a follow-up letter to the

14 investigating officer dated 30th June, and that is at

15 RNI-202-054, where he said:

16 "I understand from speaking to your offices today

17 that you are the officer in charge of the complaint

18 branch ... the above matter was previously handled by

19 Chief Inspector Gamble."

20 He then repeats the original allegations about the

21 particular detective sergeant, implying that she was in

22 some way associated with the IRA:

23 "Most recently the situation has become more

24 sinister."

25 Then he deals with the Colin Duffy case in a way

139


1 which is familiar from the documents we were looking at

2 yesterday. And in the third paragraph from the bottom

3 of the page, this sentence:

4 "In the meanwhile, it is reported that the

5 interrogators of Colin Duffy refer to Mrs Nelson as

6 a person 'who condones murder' and as a 'front for the

7 IRA', or words to that effect. Such language encourages

8 individuals to carry out assassination, as witnessed by

9 the case of Patrick Finucane which remains unsolved.

10 I personally know Mrs Nelson to be an upstanding and

11 dedicated solicitor. It seems rather cowardly for

12 individuals to attack her if such were the case, because

13 she is insistent upon fair enforcement of the law."

14 Sir, the remaining part of this letter is in fact

15 concerned not with the original complaint but with the

16 new matters which had arisen as a result of the arrest

17 of Colin Duffy, and we can see some of that material if

18 we look at RNI-105-037.513. (Displayed)

19 Now, this is the letter which is launched concerning

20 the specific Colin Duffy complaint, and we will have

21 obviously more to look at on this topic in the future,

22 but this is the initiation of it and you will see

23 here -- can we have it enlarged, please? Thank you.

24 You will see the various matters raised in relation

25 to it, and there is the fact, in the second paragraph,

140


1 that he had been charged in the absence of his

2 solicitor, and the paragraph gives the particulars of

3 that. At the third paragraph, denial of legal access,

4 interviewing irregularities, and you will see

5 a reference in the last sentence of that paragraph to

6 the complaints being made both by Mr Duffy and by

7 Rosemary Nelson herself.

8 Then there is complaint about the alibi, and in the

9 penultimate paragraph she takes the point that it was,

10 as she puts it:

11 "... extremely dangerous and undesirable, therefore,

12 that you saw fit to proceed with charging despite

13 a specific request and objection to this course of

14 action being taken. My client was denied the

15 opportunity to furnish police with an alibi."

16 On the next page, at RNI-105-037.514, she sets out

17 further complaint and says in the second paragraph that:

18 "A detailed statement regarding the complaints will

19 be furnished to you in the very near future."

20 Now, it was on this day, 25th June, that Mr Duffy

21 was charged with those two murders.

22 Now, we have already seen the reaction of the

23 investigating officer to the non-appearance on the last

24 occasion, and that continued to be the position

25 throughout the rest of July. However, on the other

141


1 side, as it were, Mr Lynch kept up the correspondence

2 pressure and forwarded the letter we have seen, in which

3 he wrote to the investigating officer, the letter of

4 30th June, in his own letter of 17th July to Jack Straw,

5 the then Home Secretary. We can see that at

6 RNI-114-070. (Displayed)

7 Yes. And so here Mr Lynch, addressing himself to

8 the Home Secretary, says -- well, he repeats the point

9 about receipt of threats against her personal safety

10 emanating from the Royal Ulster Constabulary. He

11 encloses various items of correspondence, and although

12 you can't see them without the hard copy bundle,

13 certainly in the file, all of the letters have been

14 seeing passing to and fro across the Atlantic are

15 enclosed with this letter. And he says:

16 "Please do not refer this matter to the RUC for

17 investigation since they are incapable and/or unwilling

18 to conduct a thorough and impartial review of the

19 conduct of members of their own organisation.

20 "The ICPC is restricted in that it must rely upon

21 investigation conducted by the RUC. Certainly you have

22 the authority, as the person responsible for the

23 security of all citizens of the United Kingdom, to take

24 prompt action to get to the bottom of this matter. If

25 you do not, the miscreants within the RUC will be

142


1 emboldened to carry out their threats. If these threats

2 have been perpetrated by a few rotten apples, then they

3 should be removed from the barrel before they spoil the

4 good apples remaining therein.

5 "If the situation is more extreme, as some suggest,

6 and the RUC is no longer capable of serving as

7 a responsible police force, more radical surgery is

8 required. My immediate concern is the safety of

9 Mrs Nelson."

10 Again, just pausing there, this letter, with its

11 broad allegations and reasonably high colour, does not

12 fit, you may think, neatly into any particular analysis

13 of what was going on at this point. It is not, on the

14 face of it at any rate, a contribution to the complaints

15 process. We know at this point that no details, no

16 further details, had been provided to the investigating

17 officer about the nature of the alleged threats in the

18 complaints process. Nor is it in fact a letter which

19 contains any further detail about the threats so that,

20 although at the end, in the penultimate paragraph,

21 Mr Lynch repeats that his concern is for the safety of

22 Mrs Nelson, what the letter does not do is to provide

23 the Home Secretary with further information.

24 So again, just trying to see things from the point

25 of view of the recipient and how this might be handled

143


1 or regarded, I come back to my point that from the point

2 of view of the complaints structure, really the matter

3 had simply not got off the ground in the three or

4 four months since its initiation in the perhaps unlikely

5 form of a letter from the Attorney's legal secretariat.

6 And as at this point, Rosemary Nelson had not taken

7 up the suggestion of Edmund Lynch made in his letter of

8 28th May, that they should take part in the

9 investigation.

10 Now --

11 THE CHAIRMAN: Would that be a convenient moment?

12 MR PHILLIPS: Yes, sir, yes.

13 THE CHAIRMAN: Thank you very much.

14 (4.45 pm)

15 (The Inquiry adjourned until 10.15 am the following day)

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1 I N D E X

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Opening submissions by MR PHILLIPS .............. 2
3 (continued)

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Associated Evidence

Reference Title Description
114-044-045 Appendix H - Excerpt from Human Rights Watch Report - To Serve Without Favour - May 1997
217-235-239 Complaint Against the Police - Formal Investigation - Complainant - Rosemary Nelson - Solicitor - HQ Ref B147/2583/98
215-003-007 Complaint Against the Police - Formal Investigation - Complainant(s) - Complaint Against Police by Rosemary Nelson - Solicitor
221-013-014 Fax About Complaint Against Police by Rosemary Nelson
232-013-110 Guidance to the Chief Constable on Police Complaints and Discipline Proceedures
231-172-233 Index - Part 1 - Royal Ulster Constabulary (Discipline and Disciplinary Appeals) Regulations 1988 - Part II - Royal Ulster Constabulary Reserve (Part-Time) (Discipline and Disciplinary Appeals) Regulations 1988
841-158-170 Inquiry Witness Statement of David Nairn
202-051-052 Letter about Complaint Against the Police by Legal Secretariat to the Law Officers - Attorney Generals Chamber on Behalf of Lawyers Alliance for Justice in Ireland on March 20 1997
202-002-003 Letter about Miscellaneous Inquiry
114-070-071 Letter about Rosemary Nelson - Reference No C752/97 9
201-036-037 Letter of Advice Relating to Shane Duffy V Chief Constable
202-054-055 Letter titled Your Reference No B147/941/97
233-001-153 Publication Entitled 'A Police Ombudsman for Northern Ireland?' - A Review of the Police Complaints System in Northern Ireland by Dr Maurice Hayes
202-022-025 Royal Ulster Constabulary - Complaint Against Police - by Edmund Lynch
201-021-025 Royal Ulster Constabulary - Complaint Against the Police - Formal Investigation - Rosemary Nelson - LLB - Solicitor - 8 William Street - Lurgan BT66 6JA on Behalf of Shane Duffy
201-026-031 Royal Ulster Constabulary - Complaint Against the Police - Formal Investigation - Rosemary Nelson - LLB - Solicitor - 8 William Street - Lurgan BT66 6JA on Behalf of Shane Duffy
221-032-036 RUC - Complaint Against the Police - Complainant - Rosemary Nelson Solicitor - 8 William Street - Lurgan
231-019-031 Section 2 - Introduction to Investigation and Timescales
231-032-049 Section 3 - Initial Action
231-050-082 Section 4 - Interviewing of Complainant/Solicitor and Use of Regulation 17
231-100-143 Section 6 - Interviewing of Police Involved
231-292-318 Statutory Instruments - 1987 No 938 (NI 10) Northern Ireland - the Police (Northern Ireland) Order 1987
232-002-012 The Statutory Rules of Northern Ireland 1988 - Part 1