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Full Hearings

Hearing: 16th April 2008, day 2

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ROSEMARY NELSON

PUBLIC INQUIRY

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


on Wednesday, 16th April 2008
commencing at 10.15 am


Day 2


1 Wednesday, 16th April 2008

2 (10.15 am)

3 Opening submissions by MR PHILLIPS (continued)

4 THE CHAIRMAN: Yes, Mr Phillips?

5 MR PHILLIPS: Sir, at the end of the day yesterday, we had

6 got to page 18 of the narrative. And just to remind

7 you, we were in the period between the signing of the

8 Good Friday Agreement and the murder, and I had

9 explained that the document at that point divided into

10 four strands or themes, and we had just completed the

11 first one and got to the end of paragraph 63.

12 So, sir, I would like to take the thing to the end

13 from this point, paragraph 64, with the observation that

14 the Drumcree strand or section which follows is

15 something to which I will return later in a rather more

16 detailed and focused way, because this is clearly an

17 important element of the political background.

18 Soon after the Assembly elections, the summer

19 marching season got underway, and for the fourth year

20 running, Drumcree saw a major stand-off between the

21 original order and the residents of the Garvaghy Road.

22 On 5th July 1998, the RUC blocked the Garvaghy Road

23 and insisted that they would hold the line. The RUC was

24 seeking to implement a decision of the newly formed

25 Parades Commission which had, on 29th June, announced

3


1 that it would not permit the Orange Order to march down

2 the Garvaghy Road unless there was a local agreement; no

3 such local agreement had been reached.

4 By the following day, thousands of people had

5 gathered to protest against this decision. Violence

6 erupted across Northern Ireland and shots were fired at

7 the RUC by Loyalist paramilitaries.

8 On 7th July 1998, Paisley addressed a rally in

9 Portadown and said that 12th July would be the settling

10 day. Talks were held involving Jonathan Powell in an

11 unsuccessful attempt to mediate between the Orange Order

12 and the Garvaghy Road Residents Coalition led by

13 Brendan Mac Cionnaith and representing the local Catholic and

14 Nationalist Community:

15 "When 12th July arrived after a week of violence and

16 demonstrations, Loyalist paramilitaries fire bombed

17 a catholic house in Ballymoney killing three young boys

18 inside. The Orange Order resisted calls to end the

19 stand-off, but the number of people actually protesting

20 at Drumcree fell dramatically. A protest was, however,

21 maintained throughout the whole of the ensuing 12 months

22 up to the 1999 parade."

23 Sir, we will return to that, but that is, I would

24 suggest, important. The ramifications, the

25 consequences, of what happened in Drumcree in July 1998

4


1 were still going at the time of the murder, and indeed

2 we will see in due course that the effects, as she saw

3 them, on the maintenance of law and order in Portadown

4 was commented upon by Rosemary Nelson in an interview

5 that was published on the day of her murder:

6 "In his address to the UUP annual conference

7 in October 1998, Trimble criticised the abysmal tactics

8 being employed by certain Loyalists in Portadown, saying

9 that they have disgraced the Unionist cause in parts of

10 Portadown to the great anger of the true Unionists of

11 that town, and adding that 'those on the Garvaghy Road

12 who are responsible for creating the problem and whose

13 intransigence is prolonging it are probably the only

14 ones pleased'.

15 "In an illustration of the divisions now within

16 Unionism, Peter Robinson, deputy leader of the DUP,

17 urged the UUP to topple Trimble. Speaking at his

18 party's annual conference in November 1998, he stated,

19 'We're Unionists without apologies, Loyalists in the

20 real and true sense of the name, Protestant and proud of

21 it, and we stand four square behind the Portadown

22 Orangemen in their stand for right and liberty. May God

23 bless Harold Gracey and the men on Drumcree hill'.

24 "On 3rd December 1998, about 1,000 Loyalists clashed

25 with RUC officers in Drumcree. In January 1999, the

5


1 Orange Order organised two further rallies attracting

2 around 5,000 people in Portadown in support of the

3 Orangemen demonstrating in Drumcree. Sinn Fein accused

4 Trimble of encouraging the Orange Order. In its New

5 Year message on 6th January 1999, the IRA said that

6 Unionist attempts to obstruct implementation of the

7 Good Friday Agreement and neglect its potential were

8 nowhere better demonstrated than in their active

9 approval of the Orange Order siege of the Nationalist

10 community on Garvaghy Road Portadown."

11 Then finally in this section:

12 "On 18th January 1999, the Residents Coalition met

13 the Prime Minister, Tony Blair, in Downing Street in an

14 effort to find a compromise to the Drumcree dispute."

15 As I have said, Rosemary Nelson was in the

16 delegation:

17 "A further rally in support of the Orange Order's

18 stand-off took place on 19th February after which around

19 100 young people attacked the police. At around the

20 same time the RUC revealed that it was spending

21 10,000 per day on policing the stand-off."

22 Sir, the third strand deals with the question of

23 whether and to what extent the agreement brought with it

24 a reduction in actual violence in Northern Ireland:

25 "The period after the agreement also saw a number of

6


1 paramilitary groups committing to permanent ceasefires.

2 In early August 1998, the LVF issued a statement saying

3 'our war is over', and this followed an earlier

4 ceasefire declaration on 15th May. However, on

5 15th August, a 500lb bomb planted by the real IRA

6 exploded in Omagh in County Tyrone. A misleading phone

7 warning had resulted in shoppers being evacuated towards

8 the bomb. 29 people died and 360 were injured in one of

9 the worst atrocities committed in Northern Ireland.

10 "On 16th August, the next day, the 32-County

11 Sovereignty Committee disassociated itself from the

12 bombing, and the following day the Irish Republican

13 Socialist Party called upon the INLA to announce

14 a ceasefire, stating that armed struggle could no longer

15 be justified in the light of the Omagh bomb.

16 "It was not until 18th August that the real IRA

17 contacted a Dublin newspaper to state that it had been

18 responsible for the Omagh bomb, but that it had not

19 intended to kill people. Later the same day the Real

20 IRA announced that its military operations had been

21 suspended.

22 "On 29th August, it went further and stated that

23 a ceasefire would be called shortly, indicating that

24 a continuation of violence was futile in the

25 circumstances of Omagh and the Mitchell Agreement. This

7


1 ceasefire was finally called on 7th September 1998."

2 There, on the rather neglected screen, it appears as

3 the penultimate entry, 7th September:

4 "On 22nd August, the INLA responded to the

5 Republican Socialist Party's call by announcing

6 a ceasefire. Its ceasefire statement read:

7 "'Although we, for our part, believe that the

8 Good Friday Agreement was not worth the sacrifices of

9 the past 30 years and are still politically opposed to

10 it, the people of the island of Ireland have spoken

11 clearly as to their wishes.'.

12 "And on 24th August, the INLA's Officer Commanding

13 in the Maze declared that the war is over."

14 Turning to the other side:

15 "On 13th November, the LVF stated that it would be

16 willing to decommission some of its weapons if the IRA

17 decommissioned 10 of its weapons for each LVF weapon.

18 On 17th November, the Government announced that in the

19 light of the ceasefire, LVF prisoners would be

20 considered for early release, and after some delays the

21 LVF handed over some of its weapons to the

22 decommissioning body on 18th December; the first group

23 to do so.

24 "In about November, the Red Hand Defenders emerged

25 as a paramilitary group comprised of dissident Loyalists

8


1 opposed to the agreement and to the ceasefires called by

2 other Loyalist groups."

3 As I think is well-known, in this particular case

4 the claim of responsibility for the murder of

5 Rosemary Nelson, which came after the murder, was in the

6 name of the Red Hand Defenders:

7 "This group, along with the Orange Volunteers, was

8 proscribed by Mo Mowlam in early March 1999."

9 So, sir, the final strand is about decommissioning:

10 "Throughout all of the efforts to implement the

11 agreement and establish a devolved assembly in

12 Northern Ireland, decommissioning was a constant

13 sticking point. As early as 28th May, McGuinness warned

14 against falling into the trap of trying to make

15 decommissioning the most important item on the order.

16 The UUP, however, took a different approach with Trimble

17 stating in June 1998 that his party would not sit down

18 with unrepentant terrorists. At a meeting between the

19 NIO and the UUP assembly group on 28th August 1998,

20 minutes of which were leaked, the UUP were reported as

21 saying that there would be no chance after executive

22 being formed without IRA decommissioning.

23 "Adams, meeting Trimble at Stormont on

24 10th December 1998, said that Trimble was 'a man I can

25 do business with', but repeated that he could not

9


1 deliver on decommissioning. On 19th September,

2 Gerry Kelly of Sinn Fein warned of a looming crisis if

3 the Unionists insisted on IRA decommissioning before

4 Sinn Fein could enter the assembly.

5 "On 23rd September, Adams said that the IRA

6 decommissioning was not within Sinn Fein's gift and he

7 accused the UUP of trying to renegotiate the agreement

8 by imposing this pre-condition on Sinn Fein's entry into

9 the assembly.

10 "On 30th September, Mallon acknowledged that no such

11 pre-condition existed, but nevertheless called on the

12 IRA to make a confidence-building move. In October,

13 both Trimble and McGuinness met Blair in London, each

14 blaming the other for the stalemate. The first deadline

15 of 31st October for the formation of the executive and

16 the assembly passed amid continued disagreement over the

17 need for decommissioning.

18 "On the 12th December, Trimble said that

19 decommissioning of paramilitary weapons would have to be

20 carried out in front of television cameras. The

21 following day it was reported that a general army

22 convention of the IRA had taken the decision that there

23 would be no decommissioning of firearms or explosives.

24 "In February, apparently contradictory signals as to

25 the need for decommissioning as a pre-condition to the

10


1 establishment of the executive were given by the

2 Taoiseach, Bertie Ahern. On 3rd March, in the hope of

3 breaking the impasse over decommissioning, Seamus Mallon

4 of the SDLP called on the IRA to make a statement that

5 its campaign of violence was over."

6 Then finally:

7 "On the weekend of 6th and 7th March, senior UUP

8 figures said there would be no secret deal to allow

9 Sinn Fein into the executive before the IRA

10 decommissioned its weapons."

11 In paragraph 83, the point in these four strands is

12 marked and what we have tried to do, therefore, is to

13 give you, as it puts it, the state of the peace process

14 and of the implementation of the agreement at that

15 point.

16 Sir, can I just draw some of the strands together

17 before following the narrative to its conclusion.

18 In my submission, what this shows, therefore, is

19 that the pro-agreement political parties and both the

20 governments were trying to keep the momentum going, to

21 keep up the movement towards positive change, although

22 it is quite clear that there were some very difficult

23 issues which remained, particularly decommissioning.

24 As I have also stressed yesterday, a key element in

25 that programme of change related to policing. I have

11


1 shown you how, in the period with which we have just

2 been concerned, the Patten Commission began its work.

3 That was one way, an important way, in which the

4 agreement was implemented.

5 I have mentioned the preparations that were already

6 taking place for the new ombudsman system, but there

7 were other very significant changes and one that we have

8 seen highlighted here, for example, was the first

9 release of paramilitary prisoners.

10 It is, I would suggest, easy to see how some of

11 these developments would, to put it no higher, take some

12 adjusting to. At its most obvious, negotiations were

13 now taking place at government level, involving the

14 political representatives of organisations on both sides

15 of the conflict, which had, until recently, been

16 proscribed and whose political representatives had,

17 until recently, been firmly prevented in their attempts

18 to join the club of bona fide politicians.

19 But the agreement appears to have been seen by those

20 who opposed it as an opportunity to assert themselves

21 and to flex their political muscles. They presented

22 themselves as the saviours of their communities;

23 communities they claimed had been betrayed or let down

24 by the pro-agreement parties. And behind or on the

25 fringes of these groups were those paramilitaries who

12


1 not only opposed the agreement but who also, of course,

2 had never accepted that the way forward was the

3 political way. And thus it is that the period between

4 the making of the agreement and the murder is notable

5 for the emergence of radical and dissident groups of the

6 kind I have mentioned: the Real IRA, the

7 Red Hand Defenders and the Orange Volunteers.

8 In that sense at least, it seems as if the agreement

9 had itself provoked a fierce struggle and, as I have

10 remarked, it was Drumcree which seemed to be chosen by

11 both sides as the battleground.

12 So it was not surprising that paramilitary

13 organisations were often accused of manipulating events

14 there for their own ends and that behind the political

15 negotiating parties were sometimes to be glimpsed other

16 more sinister figures.

17 Inevitably, therefore, Drumcree moved up the

18 political agenda, because it was recognised, as I have

19 said, that it posed a potential threat to the whole

20 process.

21 Now, that was, of course, also a matter of

22 importance to the pro-agreement parties, because one can

23 well imagine that they saw these developments, where

24 anti-agreement rivals were coming to the fore, as

25 a threat to their own power base and support.

13


1 Sir, just turning back to the narrative now, the

2 very final section, and trying to put that in some

3 context, I have suggested that it is important not only,

4 of course, to trace the history of events leading up to

5 the murder, but to see what happened thereafter, to see

6 what the effect was in fact; not what people feared

7 might happen as a reaction, but what actually happened.

8 But also to see whether the events which then transpired

9 shed any light on the causes, on the motivations, on the

10 reasons why the decision was taken to target and murder

11 Rosemary Nelson. So, paragraph 84:

12 "On 17th March, Clinton renewed his call for

13 difficulties encountered in implementing the agreement

14 to be resolved. The following day Clinton, Ahern and

15 Blair issued a joint statement calling for the

16 implementation deadline for the agreement to be met.

17 The statement observed:

18 "'Despite the progress, Omagh demonstrated that the

19 peace has not been a perfect peace. The cruel and

20 senseless murder of Rosemary Nelson is a further

21 reminder'.

22 "In his address to the Sinn Fein meeting in May,

23 Adams said that:

24 "'The killing of Rosemary Nelson was the most savage

25 and recent evidence of the fact that the freedom from

14


1 sectarian harassment and the right to freely choose

2 one's place of residence as enshrined in the agreement

3 were still in abeyance.'

4 "He added that the murder 'also served to

5 demonstrate the corrupt nature of the British judicial

6 system in the north and the unacceptability of the

7 RUC'."

8 Those comments encapsulate, if I may say so, the

9 political dimension to the murder very, very neatly and

10 in just a few words:

11 "At the end of March 1999, talks were held in

12 Belfast between Blair and Ahern in an effort to resolve

13 the stalemate and to meet the deadline.

14 "On 1st April, these talks resulted in the

15 Hillsborough Declaration in which Blair and Ahern called

16 for the Northern Ireland executive to be established

17 within three weeks. The declaration did not make

18 decommissioning a pre-condition for establishing the

19 executive, but it did call for some arms to be put

20 beyond use on a voluntary basis, as well as for

21 ceremonies of remembrance and collective acts of

22 reconciliation. One month after the establishment of

23 the executive, the ICD ..."

24 That is the decommissioning body:

25 "... would report on the progress it was making.

15


1 The Hillsborough Declaration was greeted with some

2 scepticism. On the Republican side, Adams said on

3 4th April that the declaration may have merit, but it

4 may also be counter-productive if it amounts to an

5 ultimatum to armed agreement.

6 "McGuinness, on 7th April, said that the IRA would

7 not accept decommissioning as a pre-condition to his

8 party's entry into a power-sharing executive.

9 "On 13th April, the chairman of Sinn Fein,

10 Mitchell McLaughlin stated that the party formally

11 rejected the declaration on the basis that it moved away

12 from the agreement.

13 "Talks chaired by Mo Mowlam and Blair were held in

14 Stormont and in London to try to resolve the issue. On

15 15th May, Blair set an absolute deadline of 30th June

16 for the formation of the executive and devolution of

17 power to the assembly. On 15th June, both Blair and

18 Ahern indicated that if the 30th June deadline was not

19 met, then the British and Irish governments would seek

20 alternative means of making progress, potentially

21 involving setting aside the agreement.

22 "On 25th June, Blair and Ahern proposed that the

23 formation of the executive might be conditional upon the

24 decommissioning of all paramilitary arms under ICD

25 supervision by May the next year. Trimble challenged

16


1 Sinn Fein to get the IRA to make such a pledge; the

2 challenge interpreted by some as a change in position by

3 the UUP.

4 "Despite it movement, the 30th June deadline passed

5 without the establishment of the executive, and the UUP

6 continued to insist that IRA decommissioning should run

7 in parallel with the establishment of the executive.

8 During the same period, the Loyalist marching season

9 began again.

10 "On 24th June 1999, the Orange Order began a 10-day

11 long march from Derry to Drumcree in support of the

12 Portadown Orangemen. On 28th June, the

13 Parades Commission rerouted the march away from the

14 Garvaghy Road. On 2nd July, Blair held talks with

15 representatives of the Orange Order and the Residents

16 Coalition in an unsuccessful attempt to find

17 a compromise relating to that year's parade. When the

18 parade itself occurred on 4th July, a steel barricade

19 was erected to prevent the Orangemen from marching down

20 the road. A protest was mounted but was much quieter

21 than in previous years. Eight days later the Twelfth

22 parades across Northern Ireland also passed off without

23 incident."

24 Now, sir, that final statement concerning the

25 Drumcree march in 1999 is a good way to illustrate the

17


1 suggestion I made, that in fact things did not unravel,

2 that the picture did not become black in the months

3 following Rosemary Nelson's murder, and indeed that it

4 transpired that the violence, the turbulence at Drumcree

5 in 1998 and in previous years, was of a far greater

6 order than the marching and the protests that took place

7 after her murder in 1999.

8 Sir, I would just like to follow the chronology to

9 the end, because in fact it takes us, I think, to the

10 very end of the year. Sir, if you look at the screen,

11 the point we have just arrived at is the 4th July, where

12 it says:

13 "The parade was more peaceful than in previous

14 years."

15 And what the rest of the screen shows us is, of

16 course, a complicated picture but certainly backs up the

17 suggestion that the onward, forward movement continued.

18 Note, please, the entry at 21st July, for example, where

19 the IRA rejected decommissioning but restated their

20 definitive commitment to the process.

21 The Patten Commission report comes in on

22 9th September, talks continue. There is a reiteration

23 on 16th/17th October by Adams of his party's commitment

24 to the agreement, and if we could just turn to the last

25 screen, please, (displayed) you will see similar

18


1 statements on 16th November, another from the IRA on the

2 17th, and note something to which I will return in

3 a minute: the award of the George Cross to the

4 organisation, to the RUC, as a force, on 23rd November.

5 Then finally, 2nd December, we see the actual

6 process of devolution and the necessary statutory

7 measures being taken with the new assembly meeting.

8 Now, that is as far as we have taken it in an

9 attempt, as I say, to give you a sense at least of

10 events in the months immediately following the murder.

11 Now, sir, I would like now to look in more detail at

12 the specific issue of Drumcree, which, as I have

13 explained, comes into our area of interest in a variety

14 of different ways. With some anxiety, I would like to

15 ask for the map of the Garvaghy Road to be displayed,

16 please. The anxiety is no more than my normal concern

17 about technology. (Displayed)

18 There is it is. Now, here we have a relatively

19 simple map of the relevant part of Portadown showing in

20 yellow the road itself, and I hope, as the technology

21 moves forward, we will see various other local

22 landmarks, including the Drumcree church and the route

23 of the marches.

24 So there is the church at the top of the map and

25 there is, in those slightly odd purple dots, the route

19


1 taken to the church and then the Ashgrove Centre, which

2 is, as we will hear, where Rosemary Nelson and the

3 residents gathered, and marked in the little dots is the

4 return route which was the cause, of course, of all of

5 the controversy. And there, helpfully pointed out, the

6 Garvaghy Road route.

7 So, sir, that is, as it were, geographically what

8 the dispute, which became so bitter, is all about.

9 Could we now have the Drumcree chronology, please.

10 (Displayed)

11 Sir, this takes us from 1995 through to the events

12 of 1999, which we have just looked at in the broader

13 political context. By way of background, sir, this

14 place, its connotations, its long history of conflict in

15 relation to it, is treated and dealt with in a large

16 number of the witness statements, in a good deal of the

17 material that you have in the bundles.

18 Portadown is about five miles from the village in

19 Loughgall where the Orange Order was founded in 1795,

20 and the Order has remained strong in that area and in

21 the town. The town in recent years -- I am talking now

22 about the years of the Troubles, the years with which we

23 are concerned -- has been divided, and indeed the area

24 with which we are concerned in general, Lurgan and

25 Portadown, has seen a great deal of sectarian conflict

20


1 over the years of the Troubles.

2 Portadown itself, at the time we are concerned with,

3 was predominantly Protestant with the Catholic community

4 grouped largely in estates to the northwest around the

5 Garvaghy Road that we have just seen and Obin Street.

6 In fact, that area had been mixed, it seems, but

7 demographic changes since the 70s had seen it become

8 a predominantly Catholic or Nationalist area, although

9 there is a small Protestant estate near the junction of

10 the Garvaghy Road and Park Road.

11 Now, the annual parade, with which we are concerned,

12 is held by the order on the Sunday before 12th July.

13 In, I think, 1986 anyway, long before the years with

14 which we are particularly concerned, the march was

15 rerouted away from the Obin Street area which ran down

16 the middle of our map, but was allowed to continue at

17 that point down the Garvaghy Road. And it was that

18 which led to the disputes and the conflict, because it

19 brought the Order's march through a predominantly

20 Catholic area.

21 Sir, we have taken this from 95, as I say, and it is

22 important to note, when we are looking at the chronology

23 in 1995, that it was, as the evidence tells us at any

24 rate, in that year that the Residents Coalition emerged.

25 And I have told you already that we have evidence from

21


1 various prominent members of the Coalition.

2 You will see in the first entry there that there was

3 a demonstration, and at that point the police, for it

4 was in their power, it was their decision at this stage

5 to deal with the matter, the decision was taken that the

6 parade should be rerouted, and that led to a stand-off

7 between the police and the Orangemen.

8 There were addresses by politicians, by

9 David Trimble and Ian Paisley. There was some violence,

10 very large numbers attended. And eventually, as you

11 will see, on 11th July, an agreement was reached and the

12 agreement was that the march would go ahead without

13 bands, as I understand it, and in what was hoped would

14 be a managed way.

15 Now, everything about these events is controversial,

16 but it is right to say that some on the Nationalist

17 Catholic side saw a level of triumphalism following this

18 decision and the effective march down the road on the

19 part of not only the Orangemen but some politicians as

20 being unacceptable. And as we will see from year to

21 year to year, the effects of what happened in one year

22 are followed through in the negotiations and the events

23 as they transpire the following year.

24 So the important thing, if I may say, about 1995 was

25 that eventually an agreement was reached, and indeed the

22


1 march proceeded with those results.

2 For 1996, again, the situation is that the RUC was

3 charged with the decision-making, and I will have more

4 to say later this morning about the public order

5 problems that that presented for the police. But here

6 events took a rather different turn. The then

7 Chief Constable, Sir Hugh Annesley, first of all

8 decided, on 5th July, you see, to order the parade away

9 from the Garvaghy Road. A stand-off, as it is explained

10 there, began.

11 Now, there was rioting, there was violence and,

12 again, trying to approach this from a neutral

13 perspective, certainly one view of this would be that

14 the police were caught between two disgruntled and angry

15 communities. And one can well imagine the difficulties

16 that that presented for them, as well indeed as for both

17 of the communities in this period of very, very

18 heightened tension.

19 As the chronology records, there was rioting, there

20 were disturbances and troops were brought in to

21 reinforce the policing effort being made by the RUC.

22 This continued while talks were also going on

23 between politicians, as you will see the entry there for

24 10th July. However, those talks were unsuccessful. You

25 will see the reference under the 11th to the Residents

23


1 Coalition leaving the talks, and on that day the

2 Chief Constable changed his decision. He allowed the

3 parade to pass down the Garvaghy Road, and in order to

4 do that, the police forcibly removed the resident and

5 other Nationalist protesters from the road, which,

6 perhaps predictably, in turn provoked rioting in the

7 Catholic areas and also, as one can imagine, resentment,

8 which we will see feeding through in successive years,

9 not just in this July.

10 That rioting, those disturbances, was not confined

11 to this area, but spread to other parts of

12 Northern Ireland. Can we have the next screen, please.

13 (Displayed)

14 There you will see the very first entry shows that

15 this was not just a local problem.

16 By the end of the disturbances, the material we have

17 examined shows that the police had logged some 8,000

18 incidents. It was assessed that up to 24,000 petrol

19 bombs had been thrown and about 6,000 plastic baton

20 rounds had been fired. It was generally seen that even

21 by the standards of Northern Ireland, the intensity of

22 rioting and violence was of a very, very considerable

23 order.

24 Mr Flanagan commented at the time:

25 "Northern Ireland cannot stand another summer like

24


1 this one. The intensity of the violence which our

2 officers withstood was of a scale that I hadn't seen for

3 over 25 years. The country stared into the face of

4 great difficulty and crept right up to the edge of the

5 abyss."

6 Now, as I have suggested before, another significant

7 effect of what happened that year was the damage done to

8 relations between communities, and unsurprisingly,

9 antipathy between the communities and between the

10 communities and the police was heightened.

11 Now, as the chronology makes clear, the

12 ramifications of the events of July 1996 were also

13 considerable in political terms, and on 15th July we

14 record the announcement by the Secretary of State of

15 a review of legislation in relation to the control of

16 parades and marches. That was the review chaired by an

17 academic, Dr Peter North, which, as you will see later

18 on our chronology in January 1997 reported on the 30th

19 of that month.

20 The marching season public order difficulties were

21 also the focus of attention and interest by NGOs, and

22 you will see reference here to a report by one of the

23 more prominent NGOs in Northern Ireland, which I have

24 mentioned before, the Committee on the Administration of

25 Justice, in their assessment particularly of the

25


1 policing of the marching season that year.

2 Now, sir, what happened when the North Report was

3 published is that recommendations were made and, as you

4 will see here, accepted for the establishment of

5 a Parades Commission; one of the effects of which would

6 be to take out of the hands of the Chief Constable, of

7 the police, responsibility for the decision-making. The

8 difficulty being, as one can see, that the

9 Chief Constable was not only responsible for the massive

10 problem of public order, but for the prior question of

11 whether the march should proceed and how and under which

12 conditions.

13 And this was under the North recommendations, this

14 aspect, this side of things, was to be handed over to

15 the new commission and you will see Alistair Graham was

16 appointed as the first chairman of the Commission.

17 Now, sir, if we just go to the very bottom of the

18 screen, a reminder of the New Labour victory at that

19 point and the new Secretary of State emerging,

20 Mo Mowlam. That in this, as in other areas of policy,

21 did not -- one may, I think, safely say substantially

22 affect the approach. It may have given impetus, forward

23 momentum, the momentum that often comes with a new

24 incoming government with a very large majority, and

25 certainly I think it is beyond argument that the new

26


1 administration devoted to Northern Ireland and to these

2 and related issues a great deal of high level political

3 attention in the early years of the New Labour regime.

4 So, could we turn to the next screen, please.

5 (Displayed)

6 Now, this, sir, follows the matter through into

7 1997, and I hope it is clear from this that although

8 there was a new government and although things were

9 changing, there were very substantial difficulties

10 remaining around Drumcree and all of the associated

11 problems. And we flag up at the very top of this screen

12 the murder in Portadown of Robert Hamill; obviously, the

13 subject of another Inquiry, but it was one of a number

14 of incidents this year which served only to heighten

15 tensions and to increase the problems.

16 The other, which I would like to flag at the moment,

17 which is of direct and particular importance to us, is

18 on 16th June, when two RUC officers were shot dead in

19 Lurgan. And, as you know, this is a matter which

20 directly involved Rosemary Nelson and about which I will

21 be saying a great deal more later in my opening.

22 But this was an event, the evidence, the material we

23 have suggests, which had a very substantial impact.

24 Thinking back to our broader political chronology, in

25 time it came very shortly before the IRA ceasefire, and

27


1 the impression one gets is that the murder of these two

2 officers was, by those analysing the general movement,

3 political movement at that stage, simply very hard to

4 understand. It did not seem to fit with the generally

5 thought position and approach of the Republican side of

6 political affairs in Northern Ireland at that time. And

7 it plainly will have had a very considerable impact

8 locally on colleagues and other RUC officers.

9 Sir, in our particular context at the moment it

10 forms the backdrop to the negotiations which continued

11 during the months leading up to the marches of 1997.

12 Now, you will see on 21st May that two leading members

13 of the coalition were elected to the local council, and

14 also in that and subsequent entries, that the Secretary

15 of State herself was taking part in the negotiations

16 between the two sides designed, above all, to avoid

17 a repeat of what had happened the previous year in 1996.

18 Now, sir, moving forward. After the murder of the

19 police officers, you will see at this point in the

20 chronology, on 27th June, the first reference to

21 Mr Powell and the talks which took place not only

22 involving the Secretary of State and the two sides of

23 the dispute, as it were, but also Mr Powell at

24 Hillsborough.

25 Now, at that point there was, let us say, 10 days or

28


1 so to go. But you will see from the succeeding entries

2 that, if anything, the matter increased in importance,

3 and that is symbolised by the entry for 3rd July, when

4 there was a meeting between the Prime Minister and the

5 Taoiseach to discuss this issue in advance of what was

6 then the march due to take place in the very near

7 future.

8 Now, sir, as at this stage, remember that

9 decision-making in the end came back to the

10 Chief Constable; in other words, the recommendations of

11 the North Report, the setting up of the

12 Parades Commission, all of that was underway, but as

13 with so many of our issues it had not yet taken place.

14 And thus it was that the consideration and, in the end,

15 the decision-making, although involving the Secretary of

16 State was a matter where the decision was taken, as it

17 were, by the man ultimately charged with policing the

18 parade, the Chief Constable. And you will see what

19 happened, which was that a decision was taken to allow

20 the parade to go ahead, which, as the previous year,

21 effectively meant forcing it down the road.

22 We have a good deal of evidence and of other

23 material, including television, video material, which

24 shows very vividly indeed what happened as the

25 substantial police presence arrived very early in the

29


1 morning and eventually removed the sitdown protesters in

2 the middle of the road.

3 It was felt by local Catholic residents that they

4 had been prevented, as a result of the lines set up by

5 the police, from going to mass at the local church. And

6 thus it was, as the chronology records, that an open-air

7 mass was conducted on the streets.

8 Now, this decision, the events that I have

9 described, led to more violence, and in the material we

10 have considered it is suggested that there were about

11 60 police officers injured, 56 civilians, there were

12 177 arrests, 1,500 petrol bombs thrown, 800 alleged

13 attacks on the police and, again -- a very substantial

14 number -- 2,500 baton rounds were fired.

15 Can we go to the next screen, please. (Displayed)

16 Yet again, the problem was not confined to this

17 area; it spread across Northern Ireland.

18 Now, in fact the parades on the day, on the 12th

19 itself, as you will see recorded here, passed off by

20 comparison relatively peacefully. But so far as the

21 Garvaghy Road, so far as the residents on the one hand,

22 the Orange Order on the other, were concerned, this was

23 another year of violence and another event which

24 contributed to the division, already a substantial

25 division, between the two communities.

30


1 Now, sir, here you will see in October the North

2 Report recommendations being taken forward by the

3 Government and the Parades Commission itself publishing

4 its procedures, and the final entry for this year that

5 we have concerns another NGO report, which was

6 accompanied by a video of the same name, which we have

7 also obtained and disclosed as part of our part 1

8 material to the Full Participants.

9 The NGO saw the problem at Drumcree, as you will see

10 from the chronology, as a problem of rights; in other

11 words, on the one hand -- which is of course the

12 original position -- the right to cultural expression,

13 to march and to assemble peacefully, and on the other

14 hand, the right to live free from fear or intimidation

15 and, of course, the issue of equality, ie that all

16 citizens in Northern Ireland should be and should be

17 seen to be treated equally.

18 Now, sir, the legislation continued in February 1998

19 with the statutory measure designed to deal with

20 marching. But again, one has to say even in this

21 period, to which I haven't so far devoted much

22 attention, ie before the agreement, that the security

23 situation was not at all rosy. And you will see there

24 reference to the bomb which exploded in Portadown on

25 23rd February.

31


1 The Parades Commission comes into existence the next

2 day, and as an illustration of how these events are not

3 confined simply to the July of each year, look, please,

4 at the 22nd March entry. That happens to be a Residents

5 Coalition march, rally, but the same could equally be

6 said of both sides. This was round the year business,

7 round the year campaign.

8 Now, the same is true of the entry for 30th May.

9 And again, in the material we have had by way of

10 disclosure, there is some focus on this parade on

11 30th May, which itself provoked violence, despite the

12 fact that it involved children or young people.

13 Sir, it must not be thought for a moment that all of

14 the disorder, all of the violence was confined to these

15 days in July. So far as the main parade in 1998 is

16 concerned, again, the RUC had in prospect a huge

17 policing operation and that had to continue. And

18 obviously the preparations had to be made,

19 notwithstanding the fact that for the first year the

20 Parades Commission were in charge of the

21 decision-making. It was of course only the

22 decision-making that was taken off the shoulders of the

23 Chief Constable.

24 So here at 29th June, at the very bottom of the

25 screen, we see the determination of the

32


1 Parades Commission given on 29th June. And I should

2 have said before, of course, but in this chronology, as

3 in the previous one, by putting it in electronic form we

4 have allowed everybody, the Full Participants, to get

5 access by following the links to the CAIN website.

6 Their determination was that the march should not

7 return along the Garvaghy Road via the controversial

8 route, unless by local agreement. And unsurprisingly,

9 you may think, the Secretary of State appealed for

10 compliance with that position.

11 Can we turn to the next screen, please. (Displayed)

12 Of course, the key to that was the proviso about

13 local agreement. A few days after the decision was

14 announced, you will see that the Orange Order announced

15 its decision to defy the Parades Commission's

16 determination.

17 Once again, the talks, the negotiations to try and

18 prevent difficulties, to try and reach an agreement,

19 took place at a very high level involving the Prime

20 Minister and his Chief of Staff. And I am afraid once

21 again, as the day approached, the police and the Army

22 had to move in to enforce the determination of the

23 Parades Commission, and a stand-off began.

24 This provoked disturbances in Loyalist areas, and

25 you will see that there was political involvement on the

33


1 Unionist side with Mr Paisley saying that 12th July will

2 be the settling day, in a rally which took place at

3 Portadown.

4 Talks continued, and you will see on 11th July that

5 Mr Powell acted as a mediator. However, there was still

6 no agreement. Then took place on the 12th itself the

7 murder of the three young children that I mentioned

8 earlier, and in the light of that, leaders called for

9 the protest to be called off. I should say that the

10 three brothers were killed by a UVF petrol bomb.

11 Whether there is a direct connection or not, it

12 transpired that the numbers involved in the stand-off

13 did fall and fall significantly. That was the, as it

14 were, the end point of that particular Drumcree parade.

15 Looking back again at the period of the stand-off,

16 again, there were, on the material we have seen, very

17 substantial numbers of public disorder incidents

18 recorded by the police, hundreds of petrol bombs thrown,

19 houses attacked and vehicles damaged. 78 police

20 officers and soldiers were said to have been injured and

21 260-odd people were arrested.

22 Now, sir, it is at that point that the phase

23 immediately before the murder of Rosemary Nelson begins.

24 You will see on 17th July the local District Master of

25 the Orange Order, Harold Gracey, confirms that a token

34


1 presence is to be maintained at Drumcree, and in fact

2 this did indeed continue. As far as we can see, it

3 continued for a matter of years.

4 Talks also continued -- and if we can move to the

5 next screen, please -- and Mr Powell continued to be

6 involved. However, the violence also continued and the

7 incident recorded on 6th October is one, again, where

8 a Loyalist bomb caused murder, this time of a RUC

9 officer in the course of a protest in Portadown.

10 At the high level I have mentioned, both sides

11 continued in their discussions, obviously in an attempt,

12 in a broad sense, to avoid a repeat of events of that

13 kind, and that in due course led to the meeting at

14 Downing Street, which I have mentioned before.

15 But what I hope this particular screen shows is that

16 at the time of Rosemary Nelson's murder, there had been

17 no solution, that clashes between Loyalists and the

18 police were continuing -- see the entry for

19 3rd February -- that rallies and protests and marches

20 were either taking place, or plans for them. In the

21 case of the 14th February incident, plans prevented by

22 the commission were continuing.

23 What this chronology suggests is that the violence

24 which I have already mentioned and which took place

25 after Rosemary Nelson's murder was intimately connected

35


1 through all the violence surrounding Drumcree that we

2 have seen recorded in the pages of this chronology.

3 What appears to have happened on the eve of her

4 funeral is that there was an Orange Order meeting and

5 the playing of the Lambeg drums at a time when the

6 nationalist community were out in force. And of course

7 both sides regarded themselves no doubt as having been

8 provoked one by the other. The Nationalists in

9 particular taking the view that this was at the very

10 least a provocative thing to do on the eve of the

11 funeral. And in the disclosed television broadcast

12 material you will see comment from the very senior RUC

13 officer, whose men found themselves yet again on the eve

14 of the funeral caught in the violence between the two

15 communities, and the, if I may say so, realistic and

16 sensible points he makes about the causes for that

17 violence.

18 Now, sir, so far as the aftermath of the murder is

19 concerned, and despite the exacerbation of violence

20 which seems to have occurred immediately after the

21 murder, and as a result of it, the meeting, the talking,

22 continued. And in this more specific way, therefore, we

23 can see if we follow the chronology on that the effect

24 of the murder was intense, was immediate, but it appears

25 to have been brief in its duration.

36


1 Sir, if we just follow the chronology down, you will

2 see the Prime Minister is still involved in the talks

3 with both sides, the 30th March. Could we turn over to

4 the next screen, please. (Displayed)

5 The position so far as disturbances is, of course,

6 not a simple one and in May you will see a reference

7 there to further trouble, both in the weekend of the

8 18th and 20th and on the 29th. The protests by the

9 Orange Order continue. Then on 4th June you will see

10 this building makes its first appearance in our

11 documents, as the scene of talks continuing here, this

12 time with a mediator, Mr Blair; not the Prime Minister,

13 a different one. But the Prime Minister and his

14 Chief of Staff are still involved. The 10-day march

15 begins whilst the talks continue, and importantly, on

16 28th June, the determination for this year of the

17 commission. It was determined that the march should be

18 rerouted away from the Garvaghy Road and the commission

19 was itself critical of the Orange Order and the

20 Portadown district of it for refusing to meet with the

21 commission, and indeed for its conduct since the

22 previous year's ruling.

23 Now, can we just turn over to what I think is the

24 last screen. (Displayed)

25 Yes. There was violence, as you can see, recorded

37


1 there on the 5th, but importantly the actual parades on

2 the 12th pass off without a major incident.

3 Sir, that is all I wanted to draw to your attention

4 on the Drumcree chronology.

5 THE CHAIRMAN: Mr Phillips, that would be a convenient

6 moment to have our quarter of an hour break? A couple

7 of minutes before quarter to 12.

8 (11.28 am)

9 (Short break)

10 (11.43 am)

11 THE CHAIRMAN: Yes, Mr Phillips?

12 MR PHILLIPS: Sir, the third and final broad topic I would

13 like to address in this attempt to set the context for

14 the events that you have to consider concerns policing.

15 Of course, the Inquiry itself is proceeding, as I have

16 explained, under a Police Act, the Police

17 (Northern Ireland) Act 1998. As I hope has already

18 become clear, in many of our issues the police are

19 involved and there is a focus, an inevitable focus, on

20 police officers and indeed on questions of policing more

21 generally; the Drumcree situation being a very obvious

22 example.

23 Therefore, I would suggest, it is important to

24 stress at the very outset that context is critical here

25 too. Now, I am conscious in this part of my

38


1 submissions, probably more than any other, that

2 literally hundreds of thousands of words have been

3 written and published on the topic of policing in

4 Northern Ireland. So this will be a very short and no

5 doubt inadequate summary. But I will attempt to set out

6 the context for you in my own words.

7 The RUC was faced, during the years of sectarian

8 violence, with policing and security challenges which

9 were without parallel in the rest of the United Kingdom.

10 Indeed, they were without few parallels in the rest of

11 the world.

12 They were in the front line of the maintenance of

13 the rule of law, in the face of determined and ruthless

14 terrorists on both sides who were prepared to murder

15 again and again and again in order to advance their aim.

16 Sir, the police's work took place in difficult and

17 dangerous circumstances, sir, outside the experience of

18 other police officers in the rest of the United Kingdom.

19 Their work took place in circumstances where large

20 sections of the community would not cooperate or work

21 with them. Thus, to take an obvious example, hampering

22 the task of investigation, witnesses would not come

23 forward, evidence would not be volunteered. And it is,

24 I would suggest, beyond any argument at all, that many

25 officers of the RUC during this period worked tirelessly

39


1 and courageously to uphold the rule of law. They were

2 regarded by the paramilitaries as legitimate targets,

3 and hundreds of them lost their lives and many more were

4 injured in the course of their duty.

5 That level of dedication and sacrifice was, of

6 course, recognised by the award of the George Cross

7 in November 1999, which I have already mentioned, to the

8 force as a whole.

9 Sir, in considering the issues in this Inquiry about

10 the police and about policing, these fundamental points,

11 the truth of which I suggest would be acknowledged by

12 the fair-minded, must not be forgotten. That is not, of

13 course, to say that the Inquiry should shrink from

14 considering the actions of individual officers or from

15 assessing the question of attitudes more generally, the

16 question that I mentioned yesterday. But you will,

17 I know, wish to bear these points in mind in seeking to

18 arrive at a fair assessment of events and of issues.

19 This was a time of great change for the police and

20 for policing, as I have explained. Sir, can I do

21 a brief survey for you from the material that we have

22 considered to make that point good. I have touched on

23 some of the specific points. This is intended to

24 highlight matters from the specific perspective of the

25 force itself.

40


1 The years from the mid-90s presented continuing

2 pressures and new challenges for the RUC: There were

3 political developments which offered but did not promise

4 a change in the security situation; the need to deal

5 with the continuing threat and indeed actuality of

6 paramilitary violence; the challenge that we have just

7 been looking at of policing these contentious and indeed

8 resource-sapping marches and protests, on top of the

9 general carrying out of policing duties in the

10 communities where, as I have explained, in some cases

11 they did not enjoy trust nor confidence.

12 Now, alongside those pressures, which were

13 characteristic of the years of the Troubles, there were

14 the particular factors which we have been looking at

15 relating to change, the need to adapt to changing

16 circumstances, the creation of a normalised police force

17 operating through and with the community, because this

18 was a force which perforce, as it were, had been

19 concentrating its efforts, its resources and its

20 attention for decades on security.

21 Now, sir, very briefly looking at the years with

22 which we are concerned in particular, I have outlined

23 for you the position in relation to the Drumcree march

24 in 1996 and the stresses and strains that were doubtless

25 put on the organisation by what was required in order to

41


1 police those protests and deal with the violence.

2 I have already quoted to you the striking words of

3 Mr Flanagan, as he then was, about the impact of those

4 events in 1996 on his officers and on the force as

5 a whole.

6 Now, moving forward, so far as 1997 is concerned, in

7 his annual report, he wrote, unsurprisingly, you may

8 think, of change and of the changes that were taking

9 place and he expressed it in an optimistic and positive

10 way, you may think.

11 But it is right to record, so far as the security

12 situation with which the police was concerned, that in

13 fact 1997 saw more deaths in this context than the

14 previous year; some 22, including, as we know, the death

15 of Robert Hamill and of the two police officers in

16 Lurgan in June.

17 Sir, in this respect also matters did not move

18 forward immediately or suddenly to, as it were, a better

19 security situation. Now, the situation so far as 1998

20 and even, as I have explained, after the agreement was

21 also very, very mixed. That year saw no end to

22 sectarian killing and indeed to punishment beatings.

23 There were 44 deaths that year; again, up from the

24 previous year. Most of those were civilians, but they

25 included a soldier -- we have seen reference to him,

42


1 Stephen Restorick -- and a RUC officer. And again, we

2 have seen reference to him killed by the Loyalist bomb

3 in Portadown.

4 Now, sir, that therefore shows, you may think, that

5 the policing challenges which the force faced in 1998

6 continued to be very substantial indeed. And that takes

7 us to the time, the year, of Rosemary Nelson's murder.

8 Now, that time was also, as we have seen, a period

9 during which the Patten Commission was doing its work.

10 And I think it is important at this stage to try to

11 bring together the changes in policing which were more

12 directly related to the issues with which we are

13 concerned.

14 Now, the first I would like to flag for you is an

15 issue which forms part of the picture in relation to

16 a number of the topics we have to consider, including

17 the business of complaints against the police. The

18 Government's response to terrorist violence over the

19 years was to bring in legislation, including the

20 Prevention of Terrorism Act and the Emergency Powers

21 Act, in order to give the security forces, including the

22 police, the powers that government believed they needed

23 to deal with the turbulent and bloody security

24 situation.

25 Now, those Acts were subject to a review system, but

43


1 it is right to say that the framework of legislation

2 remained in place for many years. A range of measures

3 enacted in that way was considerable. In the area of

4 criminal justice, for example, they included the concept

5 of Diplock courts, in which terrorist offences were

6 tried without a jury, by a judge sitting alone.

7 But the effect of them in general was, as I have

8 suggested, to make the business of policing essentially

9 the business of dealing with security, to underline the

10 importance in policing of managing, trying to stem, to

11 prevent and to detect terrorist crime. And it was

12 suggested, not least by Her Majesty's Inspectorate, that

13 the RUC had by force of circumstances become an

14 anti-terrorist organisation, as opposed to

15 a community-based police service.

16 Those concerns were repeated in the Patten Report,

17 as is well-known, I think, and it was emphasised that

18 a focus on combating terrorism had cultivated a security

19 mindset at the expense of other more traditional areas

20 of policing.

21 However, for our immediate purposes may I just

22 mention one aspect of the emergency or anti-terrorism

23 legislation, and that is the rules which pertained

24 regarding the detention of those suspected of terrorist

25 crimes in the holding centres, Gough Barracks,

44


1 Castlereagh and Strand Road. For you my think that this

2 was the regime, the regime established by this

3 legislation, which formed the background to and indeed

4 the springboard for the complaints you will have to

5 consider.

6 Now, at the outset of the period which we will be

7 looking at in particular detail, ie from early 1997,

8 there was no video nor audio, ie tape, recording of

9 interviews with suspects in the holding centres. In

10 this area too changes took place in the very last period

11 of Rosemary Nelson's life. Video recordings, silent

12 video recording began to be introduced in, we

13 think, March 1998. By the beginning of the following

14 year, 1999, video and audio recording with related codes

15 of practice were in place and in general effect in the

16 holding centres.

17 Now, the effect of the absence of independent and

18 objectively verifiable recording was, of course, that

19 the issue of what happened or what had been said in

20 interview came down to the evidence of the interviewing

21 officers -- there were usually two -- on the one hand,

22 backed by their notes of interview, and on the other,

23 the account given by the accused.

24 It is, therefore, you may think, unsurprising that

25 complaints were made about what was said in those

45


1 interviews.

2 Now, I will obviously have more to say about this

3 when we come to look at the complaints in detail, but

4 the conditions which I have described were, I would

5 suggest, likely to lead to dispute.

6 Looking at it from one side, the cynical client

7 would feel able to make a complaint in order to gain an

8 advantage to his defence, his defence to the allegation,

9 knowing that there would be no unchallengeable and

10 independent record of what had been said which would

11 expose the falsity of the allegation he was making.

12 Equally, it could be said that the unscrupulous

13 interviewer would feel tempted to make whatever comments

14 he thought would assist to put pressure on the accused,

15 knowing, for exactly the same reasons, that there would

16 be no recording of them and hoping that his interviewing

17 partner would back him up should any complaint be made.

18 It is, to put it in cruder terms, simply unlikely,

19 as a matter of one's judgment of human nature, that an

20 interview officer would scrupulously record in his

21 interview notes improper threats made to the accused in

22 interview.

23 Now, concerns about the police's power to delay

24 access by the accused to his lawyer under the same

25 legislation had also been expressed over a number of

46


1 years before the events with which we are concerned.

2 And again, we will see that that is a theme of the

3 complaints made by Rosemary Nelson and her clients in

4 due course.

5 Now, the overall effect, much commented upon at the

6 time, of these measures was in short that someone

7 accused of the same crime in England would be

8 interviewed under the Police and Criminal Evidence Act

9 in very different conditions to those pertaining in

10 Northern Ireland and specifically in the holding

11 centres.

12 The changes I have mentioned, which required

13 amending legislation and which led to the gradual

14 relaxation of the regime, including the introduction of

15 interviewing records by video and audio tape, all of

16 those changes were of course put into sharp focus when,

17 in the Patten Report, it was recommended that the three

18 holding centres should be closed forthwith.

19 Now, that report, entitled "A New Beginning", is of

20 course the origin of many of the changes of policing

21 which have taken place in Northern Ireland since

22 Rosemary Nelson's murder. However, it is, I would

23 suggest, important also to record that at the time we

24 are dealing with, changes were underway, things were not

25 remaining static until the Patten Commission came along

47


1 and changed everything. That is simply not correct.

2 The police were already adjusting to what seemed to

3 be shifts in the security situation and that is not just

4 in the ways I have been describing, but also, if you

5 remember on our chronologies, we saw how policing on the

6 streets was already being changed in its character; the

7 military element, where possible, already being

8 reconsidered or reduced. So those changes were already

9 starting at the time with which we are concerned.

10 But they were taking place in a situation where, I

11 would stress, it was not possible to know whether or not

12 there would be a return, a general return, to violence.

13 Now, we have witness statements and you will hear

14 evidence from very senior officers in the RUC who were

15 in post during this time, this time of change, and of

16 course from the Chief Constable himself. And I should

17 add this: that it must be remembered that he was the

18 driving force behind the fundamental review of policing

19 which was completed in 1997, and that document,

20 pre-dating the Patten Commission and its report by, as

21 I say, two years or more, which proposed changes to the

22 force. Indeed, some assess that of the

23 175 recommendations made by the Patten Commission, the

24 vast majority -- on some counts as many as 163 -- could

25 already be found in the fundamental review document.

48


1 So it would be quite wrong to paint the RUC or at

2 least its senior management as resistant to the changes

3 in policing which marked the period with which we are

4 concerned: changes were proposed, change was in the air.

5 It was the power, the authority and of course the

6 independence of the Patten Commission which ensured

7 their acceptance and realisation.

8 Now, sir, that is all I wish to say at this stage

9 about context and that also means that we have come to

10 something of a watershed in this opening, in the sense

11 that my intention is next to take a series of topics of

12 particular importance and describe the issues and the

13 evidence and the documentation we have in relation to

14 each of them. That will not, you will be relieved to

15 hear, be a complete or comprehensive survey. I will

16 guide you to those issues which I believe to be of

17 particular importance within the huge range of matters

18 you are required to consider.

19 I propose to deal with Rosemary Nelson's practice --

20 and the evidence we have upon that bears on issue 1 in

21 our List of Issues -- and then deal with some of the

22 material which shows how she did her work in one or two

23 particular cases, to touch on the huge topic of -- and

24 literature, indeed -- about the way lawyers went about

25 their business and the way they were treated in

49


1 Northern Ireland at the time. Then to deal with the

2 topic of complaints, before dealing with the three

3 moments I have mentioned in 1997 and 1998, when an

4 assessment may have been done of her safety, ending with

5 a more detailed look at the negotiations for Drumcree in

6 1998, and the question I mentioned of the Key Persons

7 Protection Scheme. Only after that will we move to

8 events much closer to the time of the murder, and then

9 finally to the issues relating to due diligence.

10 So that is, as it were, the menu. But before doing

11 any of that, I would like at this point to use our

12 technology and to introduce four short clips from the

13 material that we have obtained.

14 Could we have the slide up? I propose to introduce

15 them and to make one or two comments between each one.

16 What they have in common is that they are all recordings

17 of Rosemary Nelson speaking. Can we have the slide,

18 please? (Displayed)

19 Thank you. I am going to show them in chronological

20 order, and you will see there -- I hope everybody can

21 see that now -- the origin of them all. Five of the

22 seven clips we have come from the "Careless Talk"

23 Panorama programme by John Ware that I mentioned

24 earlier. The last four -- 4, 5, 6 and 7 -- I think of

25 as amounting to one clip because as you will see, they

50


1 all deal with the same event, namely the appearance by

2 Rosemary Nelson in September 1998 before a committee of

3 Congress in Washington DC.

4 The first clip comes from the same programme and is

5 a brief clip of Rosemary Nelson speaking at the time, or

6 shortly after, the arrest of her client Colin Duffy for

7 the murder of the two police officers in Lurgan

8 in June 1997. And could we have the first clip now,

9 please.

10 (video clip played)

11 So, sir, that then is Rosemary Nelson speaking to

12 the media, as I say, on behalf of her client at a very

13 early stage of those proceedings. And later today I

14 will show you in the documents how she went about the

15 conduct of that case up until the point when later in

16 the year those charges, murder charges, in relation to

17 the two officers were dropped.

18 Now, sir, moving on slightly in time, the second

19 clip is a clip from a video taken, we believe, by

20 somebody from what is called the Witness Programme.

21 Part of it later formed part of the Committee on the

22 Administration of Justice, or CAJ, video I mentioned

23 earlier called "Policing the Police".

24 This is an interview -- the quality is not very

25 good, but it shows Rosemary Nelson talking to camera

51


1 about the assault which she said had taken place on the

2 Garvaghy Road in the disturbances of 1997, in July, and

3 the way in which she had been abused by police officers.

4 Can we have the second clip, please.

5 (video clip played)

6 So, sir, that video, we believe taken very shortly

7 after the events she described, illustrates, if I may

8 say so, vividly the complaint that she made and one gets

9 a sense then of the fear and the effect of what had

10 happened upon her.

11 Can I draw your attention also to this point that

12 she makes about identification. One of the complaints

13 made in relation to the policing of these events by

14 commentators, by NGOs, by others and in that case by

15 Rosemary Nelson herself, related to the fact that when

16 they appeared on the police lines in the circumstances

17 I have mentioned, the identification numbers of the

18 officers were covered up, thus making it impossible to

19 put a number to an action and thus to found a complaint

20 or an objection.

21 Secondly, this also was the foundation, as

22 I mentioned yesterday, of the legal action against the

23 Chief Constable which Rosemary Nelson initiated shortly

24 before she was killed.

25 Now, before we come to the third clip, I should

52


1 introduce it in this way: it was an interview undertaken

2 in the summer of the following year. Now, we think

3 in June or July before the march of that year. It was

4 filmed by somebody called Eileen Clancy of an

5 organisation called I-Witness Video, and it is much

6 longer than any of the clips we have seen and much

7 longer indeed than any of the remaining clips. It lasts

8 for about six minutes.

9 Now, before we play the clip, you will see that the

10 interview ranges much more widely than any of the other

11 recorded comments or interviews that we have in this

12 form. It is an interview in which Rosemary Nelson talks

13 in some detail about her views of the political

14 situation in Northern Ireland, and thus it is of

15 interest, I would suggest, when we are coming to

16 consider this issue about the extent to which she became

17 involved in, became associated with, was seen as being

18 associated with politics; and in this particular case,

19 of course, politics at the flash point of Portadown,

20 Lurgan and of Drumcree. So can we have the third clip,

21 please.

22 (video clip played)

23 There is, if I may say so, a good deal to take in in

24 that clip, but can I offer the following points. First,

25 the subject matter of the interview is not -- or not

53


1 predominantly -- about Rosemary Nelson's work as

2 a lawyer. The issues addressed and the answers given

3 are put on a wide political basis. And Rosemary Nelson

4 gives her views, you may think, very, very clearly and

5 they are from a particular point of the political

6 spectrum.

7 So far as the events we have just been considering

8 are concerned, you will have noted the reference to

9 marching through the year in Portadown, the comments she

10 made about Mr Trimble dancing at the end of the 1995

11 parade and, finally, the reference she made to

12 international observers. And as we will hear, one of

13 the features of the parades each year was that observers

14 were invited to attend and indeed did attend to witness

15 the events. And we have taken statements from some of

16 them, including some who were present on the occasion of

17 her alleged assault in 1997.

18 But if I may say so, perhaps the most striking thing

19 about the interview comes right at the end: First,

20 because it is only at the end that she is asked about

21 her role as a solicitor; and second, because of the

22 comments she makes about the business of being a defence

23 lawyer in Northern Ireland, and the particular

24 expression that that role is, as she puts it,

25 "a contradiction in terms".

54


1 Now, sir, when I come to deal with the evidence

2 about her practice and when we consider other evidence

3 about her work, this interview, which deals head-on with

4 a range of political questions, should in my submission

5 be clearly borne in mind.

6 Now, the last four clips, which I intend we should

7 go through one after the other without further talk from

8 me, are, as I have said, clips which record her giving

9 evidence to the Congressional Committee. There are four

10 of them, unfortunately, because we do not have the

11 totality of the recording of her evidence, although in

12 the bundle we have the full transcript, as it were, of

13 the evidence that she gave, and we can look at that in

14 due course.

15 But this, as I have said, took place some two months

16 after the last interview, and we can have those now.

17 (video clips played)

18 Now, sir, as I explained, those are extracts from

19 the "Careless Talk" programme, so you have the

20 reconstruction footage and the music, and indeed the

21 photographs from the scene of the murder, you will have

22 seen there.

23 But putting those to one side, what in my submission

24 is relevant to us all here is that this is a recording

25 of Rosemary Nelson herself, not of somebody else on her

55


1 behalf, not of a NGO or other organisation, but

2 Rosemary Nelson herself speaking in public about many of

3 the points that I referred to right at the outset of my

4 opening yesterday morning. Because it is

5 Rosemary Nelson herself who describes threats made by

6 police officers to her clients in interview. It is

7 Rosemary Nelson herself who talks of other threats. It

8 is Rosemary Nelson herself who makes the connection,

9 six months before her murder, with the case of

10 Pat Finucane. It is Rosemary Nelson herself who

11 identifies the problem as being confusion in the minds

12 of those making the threats between her and her clients.

13 And it is Rosemary Nelson herself who explains the form

14 that the confusion takes, namely to associate her with

15 paramilitary activity.

16 And it is just a piece of evidence but you may think

17 a striking one, because these are comments made by her,

18 which exemplifies what I highlighted to you yesterday

19 morning, namely that this is a case where she herself

20 spoke publicly of what in fact happened to her. She

21 herself spoke of the threats, identified the problem,

22 drew the connection with Pat Finucane and all of that,

23 as I say, not in private, not to her friends, not to her

24 family, but in front of a committee of the Congress of

25 the United States of America.

56


1 Now, sir, can I turn first to the question of her

2 practice and of her work and what we have been able to

3 learn about it from the documents and the evidence, and

4 how that relates to the first issue on our list, namely

5 what it is about her work that created or caused

6 conflict with the organisations in our Terms of

7 Reference.

8 Sir, this is a very good example of an area of

9 investigation where a good deal of evidence has been

10 obtained, where it is on the basis of the statements

11 sometimes difficult to discern a consistent line or

12 theme emerging because inevitably the individuals

13 concerned have different experiences, different

14 recollections. But there is a good deal of evidence

15 dealing with the question of her office, her practice

16 and how it developed.

17 Now, in order to assist the Full Participants, we

18 have prepared a very large sheet of paper, which I hope

19 they all have -- I think they do -- and I hope you have

20 as well -- which sets out in clear form, I hope, the

21 sorts of analyses in this, and indeed in other areas,

22 which we have been trying to undertake.

23 Can I just explain how the document works? Down the

24 left-hand column we have the names or, in accordance

25 with our procedure, where they are not witnesses,

57


1 something which just says "non-witness", of the various

2 individuals, both solicitors, at the bottom of the page,

3 and assistants, administrators, secretaries,

4 receptionists, book keepers, et cetera, who worked in

5 the office during the 10-year period from 1989 to 1999.

6 Their role is described in the second column and we have

7 given in the next column references, which are to the

8 relevant witness statements.

9 I am not going to tempt fate by trying to follow one

10 of them through now, but if you find in the electronic

11 version of the bundle page, for example, RNI-830-011,

12 you will see the statement of Bernadette Rogers. The

13 same applies down the list.

14 So far as the next column is concerned, "call or not

15 call", that, I hope, is self-explanatory. And we have

16 then taken the chronology forward, showing, as far as we

17 can -- in some cases it is simply not clear -- who

18 worked in the office, for what period of time. Of

19 course, as far as we are concerned, the key columns are

20 those, 1997, 1998 and 1999, on the far right-hand of the

21 sheet.

22 Sir, that is the evidence that we have obtained.

23 What I would like to do now is to try to put some shape

24 to it and see what, in my submission, you can derive

25 from it as part of the assessment of issues, and

58


1 particularly in relation to issue 1.

2 The history, in brief, is that Rosemary Nelson

3 graduated with a law degree from Queen's University

4 in July 1981 and she did her articles or apprenticeship

5 with a firm of solicitors in Portadown from that year

6 to, I think, 1983, enrolling as a solicitor in November

7 that year.

8 Now, her legal career in private practice did not

9 begin in fact until 1988. She worked before that in

10 a community project office, but in fact it wasn't until

11 1988 that we think she started to work in a firm in

12 Lisburn. But it was in March of 1989 that she started

13 her own practice in Lurgan and she was the first female

14 sole practitioner in the town.

15 She started with just two rooms and a secretary, but

16 the history shows us that in the 10 years between then

17 and her murder, her practice grew very considerably to

18 where, as you will see from the bottom of the sheet, she

19 was able to employ fellow solicitors. That began in

20 1991, if you follow down that column, and there was

21 always at least one other solicitor working in the

22 practice from that period; although at the time of her

23 death, as you will see, in fact she worked alongside

24 just one other lawyer.

25 The increase in the practice brought about an

59


1 inevitable increase in the need for support staff, and

2 again, we can see that reflected if you follow the bars

3 along the page. You will get some idea of the number of

4 people who were working in this -- what became a very

5 busy practice in the 10-year period leading up to 1999.

6 Now, sir, in outline, about the way that practice

7 developed, one gets from some of the statements a very

8 vivid picture indeed, you may think, of a practice which

9 was always trying to keep up with the work, where

10 administration was not perhaps as it might have been,

11 where there was always urgent work to be done; indeed,

12 probably more work to be done than people available to

13 do it.

14 It looks as though, like many professionals, many

15 solicitors indeed, Rosemary Nelson was very good indeed

16 at dealing with the clients, client contact, getting the

17 work in, but perhaps not so diligent in following up;

18 leaving a lot of the detailed work to her juniors, to

19 the subordinates, to the other solicitors and indeed to

20 the administrative staff.

21 Now, that of course is, for those of us with any

22 experience whatsoever of law, nothing out of the

23 ordinary at all. It is an entirely familiar picture.

24 You could find it in Leicester or Loughborough, quite as

25 well as in Lurgan. However, there were, obviously,

60


1 aspects of the practice, the particular practice, that

2 she maintained which made it something really quite out

3 of the ordinary.

4 It is most unusual, you may think, for a sole

5 practitioner in a relatively small town to address

6 a Congressional committee. It is relatively unusual,

7 you may think, if not very unusual, for such

8 a practitioner to deal regularly with a wide range of

9 NGOs. It is equally unusual, you may think, for such

10 a practitioner to be in regular contact with the civil

11 service representatives of another sovereign government,

12 the Irish civil servants I have mentioned before, and it

13 is perhaps even less usual for such a practitioner to

14 attend meetings in Downing Street.

15 So although there is some suggestion in the evidence

16 that this was, to all intents and purposes, an entirely

17 ordinary high street practice with perhaps one or two

18 unusual elements, when one considers the evidence as

19 a whole and the material as a whole, in my submission

20 you may conclude that that is not an entirely accurate

21 or fair picture.

22 However, it would also be misleading, I would

23 suggest, to regard her practice as being solely on the

24 high peaks of human rights law. That simply was never

25 the case. We have looked in some detail at the

61


1 making-up of the files which were open at the time of

2 her murder. We have looked and considered the evidence

3 about the new files which were opened in the last year

4 before her death, and they portray a general practice,

5 very, very familiar from this sort of sole practitioner,

6 relatively small town background, and they cover exactly

7 the wide range of legal disputes and other matters which

8 the witnesses describe in their evidence.

9 So, for example, of the 700 or so litigation files

10 open at the time of her murder, 134 related to road

11 traffic accidents, 77 concerned tripping and slipping

12 claims. There were 73 accidents at work, there were

13 various other injury claims and it is only then that one

14 gets to the 100-odd claims against the Chief Constable

15 or the Ministry of Defence and the 120-odd claims in

16 relation to Garvaghy Road.

17 Of those 700 files, I should also point out that

18 only 36, as far as we can see, involved proceedings in

19 the High Court. So that is the level of it.

20 So far as new files are concerned -- and again, just

21 concentrating on litigation -- there were 244 opened in

22 that last year. But there were also other

23 non-litigation files, including a very substantial

24 number, 108, of matrimonial or family cases and

25 150 new sets of instructions on conveyancing.

62


1 So this was not a solicitor, and it was not

2 a practice, either solely or mostly devoted to the human

3 rights cases; the political, the high profile cases

4 which undoubtedly attracted such attention. The

5 majority of the cases were, if I can put it this way,

6 run of the mill: conveyancing, matrimonial, small, as it

7 was called in Northern Ireland still then, I think,

8 petty sessions crime.

9 So here there is a warning for us, which is that

10 again looking back from the murder, it is too easy to

11 fall into the trap of assuming that all her time, all

12 her energy, all her legal effort, was taken up with

13 these high profile cases. That is simply not the

14 position when judged on that material and in the

15 objective way in which we have tried to approach it.

16 Now, with that by way of general introduction, there

17 are some specific issues arising out of this particular

18 evidence that I would like to underline.

19 Now, the first is that there appears to be quite

20 general agreement covering the entire period with which

21 we are concerned that the practice worked for both sides

22 of the community, and that is obviously an important

23 point to make. The lawyers and also the administrative

24 staff in their evidence back that up. They also,

25 however, give evidence to us about the changes which did

63


1 take place during those years. And what they describe,

2 albeit against the background of the general work of the

3 practice that I have described, is that there were

4 indeed some particular cases, some particular clients,

5 upon which a great deal of effort and attention was

6 directed by Rosemary Nelson as the principal of the

7 firm. But also of course, and inevitably, by those who

8 worked for her. And they draw distinctions -- not all

9 of them, of course -- in their evidence between those

10 matters, those high profile cases and, as they saw it,

11 not only a change in the nature of the practice, but

12 also they describe vividly the effects of taking on

13 cases of that kind on the practice as a whole, but also

14 on them working in the practice. Because it is, of

15 course, the case that some of the threats of which

16 Rosemary Nelson spoke in that clip from Congressional

17 testimony, were threats which were, as it were,

18 delivered to the office. Therefore, those who worked

19 alongside her were, whether or not they liked it, to

20 some extent affected by and involved with those threats,

21 and therefore, as they explain in their evidence,

22 involved with what appeared to them at any rate to be

23 the impact of taking on these high profile and political

24 cases.

25 Now, sir, I am going to move on to deal with some

64


1 specific cases and clients in a minute --

2 THE CHAIRMAN: Should we adjourn until five to two?

3 MR PHILLIPS: Yes.

4 THE CHAIRMAN: Thank you. Thank you very much, Mr Phillips.

5 (12.55 pm)

6 (The short adjournment)

7 (1.55 pm)

8 THE CHAIRMAN: Yes, Mr Phillips?

9 MR PHILLIPS: Sir, I was dealing with the issue of her

10 practice generally and those high profile cases which

11 had an effect on it, and was trying to summarise for you

12 the themes which emerge from the statements, in

13 particular from members of her staff who worked in the

14 office in Lurgan.

15 Of course, as I said at the very outset of all of

16 this, we have the benefit not only of their evidence but

17 of statements from very close members of her family. As

18 you know, they also deal with these issues. They see

19 it, plainly, from a different perspective, the

20 perspective of their sister, and it is instructive, you

21 may think, to hear what they have to say. Like the

22 other witnesses, whose evidence I outlined earlier, they

23 stress that her work continued to come from both sides

24 of the community. Both her sisters who have given us

25 evidence make that point.

65


1 It is also a theme that her practice, the nature of

2 her work, continued in the general way that I have also

3 described until the moment of her murder.

4 The other aspect of their evidence which I should

5 flag before moving back to the question of clients, is

6 that both her sisters indicate that to their knowledge

7 she had no particular political affiliations. You

8 remember those passages in their statements.

9 That is, as I say, one of a number of pieces of

10 evidence on the issue which you will have to consider

11 and in doing so, obviously, bear in mind, for example,

12 the interview that we saw this morning.

13 Now, what emerges from their evidence, you may

14 think, is a concern about the effect of her work on her

15 in the latter part of her life. It is perfectly obvious

16 and entirely understandable that there were concerns in

17 the family about her. They were well aware of the

18 threats that so many other people have described,

19 although, like a number of the witnesses who have given

20 evidence to us, one gets the impression at any rate that

21 they didn't think that anything like that could happen

22 to their sister. And they also give us some insights,

23 to which I will return in a minute, about the way in

24 which Rosemary Nelson herself regarded those threats,

25 the way she viewed them, and that is obviously evidence

66


1 of some importance.

2 But, sir, in terms of the clients and those that

3 raised her profile, in our assessment and in the

4 evidence we have obtained there are probably a handful

5 of clients and cases which were both high profile and

6 had, in the context of Northern Ireland at the time,

7 a political dimension.

8 The first was the work she did over a number of

9 years, as we see it anyway, between 1993 and the latter

10 part of her life for Colin Duffy. The second is the

11 work she did, which as far as we can tell was unpaid,

12 for the Residents Coalition, and the other cases, which

13 had a higher profile, which were themselves significant,

14 are the Robert Hamill case from, we think, about 1997.

15 Not long after her (sic) murder she appears as acting

16 for the Hamill family and indeed in her evidence to the

17 Congressional committee she describes herself as being

18 solicitor to that family.

19 The fourth case is the Marshall case, Sam Marshall,

20 murdered in March 1990. It is difficult to tell from

21 the papers that we have when exactly this took up her

22 time and attention. There is some suggestion that she

23 may have been acting for the family as early as 1993.

24 However, certainly by 1998 she was on the scene and

25 demanding that an inquest should take place.

67


1 In an interview in December that year, 1998, she

2 explains that she was in the process of referring the

3 decision -- that is the coroner's decision -- not to

4 hold an inquest, to the High Court and it looks as

5 though at the time of her murder she was beginning such

6 a challenge.

7 One of her solicitor colleagues in the practice

8 mentions that at the time of her murder and shortly

9 before it, she was also representing Michael Caraher,

10 who was one of the defendants in the sniper case, which

11 attracted great interest and publicity.

12 Now, it is obviously difficult to be absolutely

13 certain in assessing which of these cases it was that

14 created the highest profile, did most to bring her into

15 the political arena, but the material that we have seen

16 suggests that two above all had this effect. The first

17 was the work that she did over the years that I have

18 mentioned on behalf of Colin Duffy, and the second, her

19 work for the Residents Coalition beginning in, we think

20 again, 1996, including the incident in 1997 which she

21 herself described in the video we have seen. But in

22 terms of her representation of the coalition, that year

23 and indeed the next year, consideration was given to the

24 obtaining of injunctive relief so as to get a court

25 order to bring the march to a halt.

68


1 Allowing for the potentially distorting effect of

2 looking at documentation many years after the event,

3 simply on the weight of the material generated and in

4 particular the extent to which her work for those two

5 clients permeated up into the world of politics, not

6 only here in Northern Ireland but internationally, these

7 two do seem to be the leading cases.

8 In their evidence and in the material the staff of

9 her office have provided for us, a connection is drawn,

10 at least by some of them, between her work on these

11 cases, the Duffy case on the one hand and the work for

12 the residents on the other, and the changes that they

13 perceived in her relationship, her day-to-day

14 relationship with police officers, on the one hand, and

15 also with the threats that I mentioned this morning,

16 some of which were received in the office, as I say, and

17 the general atmosphere which some of them detected that

18 her very prominence was giving rise to risks. And, of

19 course, human nature means that they talk not only about

20 the risks to her but to themselves, to the people who

21 worked with and for her.

22 Now, I think it might help on the question of risk

23 and indeed the issue of the relationship with the police

24 to look at one of the statements of a member of staff --

25 this is in fact a lawyer, Ken McKee -- and to see what

69


1 he says about this issue. I should make it clear, sir,

2 that he is not to be called to give evidence and so this

3 is, as it were, what he has to say to the Inquiry.

4 So can we look, please, at RNI-813-180. (Displayed)

5 Now, the passage I am interested in begins in

6 paragraph 39, and what he says is this:

7 "It was not unusual to hear of derogatory comments

8 made to one's clients about their lawyer, particularly

9 when they had been held at Gough Barracks. Solicitors

10 were never allowed to be present at interviews and, of

11 course, PACE did not apply to individuals held on

12 suspicion of terrorist offences. The police, therefore,

13 got information about detainees using whatever tactics

14 they could, including running down detainees' legal

15 representatives. For example, they would have said such

16 things as 'Rosemary Nelson is a whore', 'Rosemary Nelson

17 is a bitch' or 'Ken McKee, ginger bastard', et cetera.

18 They would have tried anything to undermine us. This

19 was par for the course. While I was at Rosemary's, I

20 don't think either of us thought anything of it.

21 "This was treated by lawyers as simply water off

22 a duck's back. Every solicitor representing such

23 individuals would have had the same treatment. I would

24 advise my clients what they could expect when

25 interviewed and they were, therefore, warned that the

70


1 police would try to run me down. In fact, when clients

2 came out of interview they would sometimes confirm that

3 what I had said was right.

4 "This situation did not overly concern me and in

5 fact it was normal, as far as I was concerned."

6 Sir, if I may say so, that is a salutary piece of

7 evidence, not just because of the list of abusive

8 remarks that he says he himself encountered, but also,

9 and perhaps more strikingly, for his response which was

10 to say this was treated by lawyers as simply water off

11 a duck's back.

12 When I come in a moment to open to you the

13 statements we have received from other lawyers who

14 practised in Northern Ireland -- not in

15 Rosemary Nelson's practice, in other practices, some in

16 completely different parts of Northern Ireland -- this

17 is a theme, that what may seem to those not familiar

18 with the situation as striking extraordinary behaviour,

19 is in fact treated very much as run of the mill, as

20 standard.

21 Now, that is in fact a theme of the evidence from

22 a number of the staff members about how the threats were

23 regarded and how these problems, such as they were, with

24 the police were also treated. In other words, that it

25 was, as it were, expected; it was par for the course.

71


1 The same theme is taken up in the evidence of the

2 family, where the question of threats is treated, for

3 example, by one of her sisters as par for the course

4 given the work that Rosemary was doing, and by another

5 sister, as we are in the context, put there by Mr McKee,

6 namely:

7 "I don't think that Rosemary was in any way the only

8 one that was subject to such threats."

9 So when you are considering how Rosemary Nelson

10 herself is likely to have reacted to reports coming back

11 to her from her clients, on the one hand, or to the

12 separate matter of threats, on the other, this line of

13 evidence, of which there is a substantial amount, is

14 something that I would suggest should obviously be borne

15 in mind.

16 It doesn't, of course, amount to an excuse for

17 unprofessional or inappropriate behaviour, but it helps

18 to set the matter in its actual context.

19 Now, sir, so far as the question of particular

20 clients is concerned, and their particular impact, in

21 a little while I propose to look in some detail at the

22 way in which Rosemary Nelson dealt with the case of

23 Colin Duffy after the time in June 1997 when he was

24 charged. The purpose of doing that is in order to show

25 you how it was that she went about his defence, not in

72


1 simply the ordinary way of preparing the case, taking

2 instructions from the client, et cetera, but about

3 taking active steps to bring the case to the attention

4 of individuals, organisations and other bodies, both in

5 Northern Ireland and elsewhere, because that goes to the

6 question of profile in the political context.

7 We will see in the course of that exercise how it

8 was that the way she conducted her work, in this

9 particular example, itself raised her profile, itself

10 made it enter into the broadly political arena.

11 But before I show you that material, there is

12 another matter which I have to mention at this stage

13 which has arisen in the course of our investigations,

14 and this is that there were rumours circulating that the

15 relationship between Rosemary Nelson and one of her

16 clients, Colin Duffy, was not simply a professional

17 relationship between solicitor and client.

18 Now, as you will hear in due course, the theme of

19 some at least of the complaints made by her clients over

20 the years was that officers had made comments to them in

21 interview of behaviour on her part, on Rosemary Nelson's

22 part, which was improper and some of those complaints

23 raise matters of a sexual nature. However, it seems

24 that the talk about this client was more widespread than

25 that. However, it is, you may think, interesting that

73


1 in none of the complaints made by Mr Duffy himself did

2 he suggest that officers had made suggestions about an

3 improper relationship between him and his solicitor in

4 the course of interview.

5 This question of the alleged relationship between

6 Rosemary Nelson and this particular client is an issue

7 which the Inquiry has had to address. At this stage and

8 on the basis of the material which I am presently able

9 to open to you, I would like to explain briefly why that

10 is and what its relevance might be to the issues you

11 have to determine.

12 I have already outlined the broad issue which may be

13 in play here, namely the identification of

14 Rosemary Nelson by some people, and perhaps by her

15 killers, with the clients she represented. It was, as

16 we saw earlier, a theme of her evidence to the

17 Congressional committee.

18 I have also stressed the fundamental point that

19 a line must be maintained between lawyer and client if

20 the system of justice and, in particular, criminal

21 justice is to be upheld. However, I have also stressed

22 to you that what is important in this area, what is in

23 truth more important than fact, is perception. Thus, in

24 the case of Rosemary Nelson, the Inquiry must consider

25 all matters which may have shaped or influenced the

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1 perception of her and of her relationship with her

2 clients. That is why I say that it is not the business

3 of this Inquiry to establish whether or not the rumours

4 were grounded in fact, whether they were true. That is

5 not, put bluntly, the Inquiry's business. However, it

6 is right to say that the question has been addressed

7 directly with those who are best placed to comment and

8 to know, namely Mr Duffy and Mr Nelson, and both have

9 denied the suggestion firmly and clearly.

10 Nor must you shrink from that consideration of the

11 rumours and of the support which some may have derived

12 from them in seeing Rosemary Nelson as being very

13 closely involved with at least one of her clients; as

14 someone whose professional detachment may in that sense

15 have been in question. For one can see very easily how

16 that might well have helped to blur the lines of

17 distinction between client and lawyer, which I mentioned

18 earlier.

19 This is plainly a matter which, if known, might in

20 turn have shaped attitudes, have influenced the way in

21 which people viewed Rosemary Nelson.

22 There is another aspect to this which I should

23 stress at this stage with the same caveat about the

24 material which can be opened now, and that is that if

25 Rosemary Nelson was associated in this particular way in

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1 some people's minds with Mr Duffy, then it makes it more

2 likely that whatever view was held of him might

3 influence views held of her.

4 We will see in due course that he was a figure of

5 prominence in the Lurgan area around whom some

6 controversy existed. The cases in which he appeared as

7 defendant and the issues raised by them were taken up,

8 as we shall see, in the media and elsewhere. He was

9 accused of murdering John Lyness in 1993, he was

10 convicted and then acquitted on appeal

11 in September 1996. He was then arrested and charged

12 with the murder of the two police officers in Lurgan

13 in June 1997, which I have mentioned. And those charges

14 were dropped in October that year, as we will see.

15 The crimes of which he was accused were seen in

16 a terrorist context and viewed at the time as

17 paramilitary crimes. The Inquiry, of course, has no

18 interest, I would suggest, in reopening those cases and

19 it would be quite wrong to do so. Nor does the Inquiry

20 intend to investigate any of the allegations which lay

21 at their heart. Mr Duffy has, as I have said, given the

22 Inquiry a witness statement and has been called to give

23 evidence at these hearings. In his statement, he says

24 that he is a Republican and was at that time, the time

25 with which we are concerned, coming into conflict with

76


1 the legal system on a regular basis.

2 However, the Inquiry does have a legitimate interest

3 in the effect of the feelings engendered as a result of

4 these cases, the cases in which he was an accused, and

5 in particular the extent to which the disposal of both

6 of the murder cases by his acquittal on appeal in the

7 first case and by the dropping of charges in the second.

8 It affected or created or directed strong feeling or

9 bitterness in his direction, precisely because of the

10 rumours to which I have referred. For the closer the

11 perceived relationship with her client, the more likely

12 you may think that her own safety might have been

13 affected by the way in which he was viewed and

14 perceived.

15 There is a final and related point on this topic

16 which I should mention. I have referred to perceptions

17 and attitudes. In due course it will be necessary to

18 explore in detail the extent to which the rumours I have

19 mentioned spread and the extent to which attitudes or

20 perceptions which may have been shaped by them were

21 held. That will in turn assist you with the answer to

22 the crucial issue 1 on your List of Issues.

23 Of course, it goes without saying that there is no

24 necessary and no sufficient connection between these

25 matters and the murder of Rosemary Nelson. One does not

77


1 follow from the other. Just because a view may have

2 been held that she had behaved unprofessionally does

3 not, of course, mean that those who held that view also

4 regarded her as a legitimate target for murder. So

5 also, and obviously, nothing in the rumours nor indeed

6 in any of the other allegations made against her over

7 the years amounted to or made up a justification or

8 excuse for murder, still less a defence to that charge.

9 Now, sir, as I said, I would like to look at the

10 period immediately following his arrest and charging for

11 these two murders, the murders of the police officers in

12 Lurgan in June 1997, at this point.

13 The first thing to note is that the video clip,

14 TV clip, we saw this morning showed Rosemary Nelson, if

15 you remember, I suspect outside the courthouse, giving

16 a statement about her client and referring at that point

17 to the previous proceedings of the John Lyness case of

18 which he was acquitted on appeal in September 1996.

19 Now, what I am going to take you through is the

20 documents which show the way in which his case was

21 raised, as far as we can tell in the vast majority of

22 cases by her, with the various bodies and organisations.

23 And I would like to start, if I may, by looking at how

24 she raised his case with the Anglo-Irish Secretariat.

25 Sir, these documents have been brought together in

78


1 file 111. Now, I am conscious of the fact that, as far

2 as I can see, I am the only person in the room with

3 a hard copy file, which makes the business of looking at

4 the documents sequentially -- it is going to make it

5 a little bit slower for all of us, I am afraid, but

6 I hope you will bear with me.

7 What I intend to do, sir, is simply to show you the

8 large number of documents which are generated in the

9 course of her contact with, in this case, the Irish

10 civil servants.

11 Can we start, please, with RNI-111-000.501.

12 (Displayed) This is a note by Eamonn McKee, who is

13 a witness to the Inquiry who will be called in due

14 course. It's headed "Shooting of RUC officers in

15 Lurgan, Conversation with Rosemary Nelson".

16 It takes place, I think, on the day of the murder

17 itself and it appears to show that there was

18 a conversation between the two of them. There is no

19 reference to, please note, any charges having been

20 brought at this stage and no reference either to the

21 name, identity, of the defendant. It appears that she

22 is not ringing Mr McKee as solicitor, therefore, for the

23 accused but rather simply ringing him.

24 Before we go to the next in time, can we just look

25 back to the previous document, RNI-111-000.500. Now,

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1 this is the first document in the file and it dates

2 from September 1996 and concerns the appeal, which I

3 think was then still going on, his appeal from his

4 conviction for the murder of John Lyness. You will see

5 that the same civil servant had spoken to her and she

6 effectively was giving him an account of various

7 developments and the way she saw the case, allowing

8 herself some comment about the presiding judge, by the

9 look of it, and thanking him, or complimenting the fact

10 that the former Taoiseach, Albert Reynolds, had attended

11 at the appeal. And note, please, these words in that

12 last paragraph:

13 "... for the interest which the department has taken

14 in the case over the years."

15 Now, we don't have in the files any documents

16 relating to that earlier interest, that earlier

17 involvement of the Irish Government at this apparently

18 very high level, but you can see just from this very

19 first document that there was a political dimension,

20 something that went beyond the business of the criminal

21 process to the way in which this was being addressed.

22 Sir, turning on to RNI-111-000.502 -- I am afraid I

23 can't help you with an author for this one, but we can

24 see it is a few days after the first of the 1997 run.

25 And it reveals that by this stage Mr Duffy had been

80


1 arrested and taken to Gough Barracks. This is the note

2 which was sent within the Secretariat system by the

3 representatives of one government to another, to the

4 British Government, and it follows, as you can see from

5 the final paragraph, contact, although we don't have the

6 document evidencing this, between her and Irish

7 officials. And that contact leads, as I say, to this

8 note between the two sides.

9 That note is in turn processed, and you will see on

10 the next page, RNI-111-000.503, the British side's

11 response:

12 "The Irish side wrote on 20th June expressing

13 concern about the arrest and charge of Mr Duffy for the

14 murders of Constables Johnston and Graham in Lurgan.

15 Representation is received about the conduct of police

16 interview. The matters raised by the Irish side may be

17 material to the criminal proceedings which Mr Duffy is

18 currently subject to. It would, therefore, not be

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

20 And broadly speaking, when we look at these and

21 other files, that, you may think unsurprisingly, tended

22 to be the response from government, from officials; in

23 other words, this is a legal process and it must take

24 its course and it would not be appropriate for us as

25 civil servants, ministers, whatsoever, to intervene.

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1 The next is RNI-111-005, and here, although as far

2 as I can see it is undated, we may have the origin of

3 the exchange we looked at a little while ago, because

4 this is again a telephone call by Rosemary Nelson. It

5 looks as though the telephone call went to Dublin and

6 then this message was passed up by Dublin to their part

7 of the Secretariat. Mr Dowling -- you will see his name

8 at the top left -- was an official in the Irish side of

9 the Anglo-Irish Secretariat which was based in Belfast.

10 He describes the nature of the call and the point

11 that he had been brought to the barracks. And at 2, you

12 will see what she was telling the official about the

13 case:

14 "She is very unhappy at this development and she

15 strenuously denies any possibility of Duffy's

16 involvement in the killings last Monday week. She cites

17 three witnesses that can testify that Duffy was in

18 Kilwilkie at the time. Mrs Nelson had advised these to

19 contact the police in Lisburn."

20 There is then comment by Rosemary Nelson, recorded

21 here, about a prosecution witness and she is recorded as

22 describing the witness as "soft in the head and likely

23 to be used merely to get at Duffy". And there was then

24 a complaint at paragraph 4 about the nature of the

25 interviewing and the fact -- this is the third sentence

82


1 of paragraph 4 -- that:

2 "... the interviewing had begun ..."

3 I think that actually means without her being

4 present. I think that is a typing error -- despite her

5 request, and we will see that this is one of the matters

6 that in turn becomes the focus of a complaint, which is

7 in due course made relating to the way in which her

8 client was treated in the first days after his arrest,

9 when he was held at the Gough Barracks holding centre.

10 Then this:

11 "She alleges that the police taunted Duffy, saying

12 that they were sure his wife and Rosemary Nelson were

13 proud of him. Nelson feels this implicates her or

14 implies she is happy with the two killings."

15 And again, this is a matter about which complaint

16 was made, and clearly those two sentences disclose first

17 of all the sorts of allegation that the lawyer was

18 implicated with the client in the way that I have

19 described, and also it shows Rosemary Nelson's own

20 feelings about it as expressed to the Irish civil

21 servant.

22 Then at the bottom, paragraph 5:

23 "Miss Nelson has asked this we would raise the case

24 as a matter of urgency. I would be grateful if you

25 could raise the issue with the other side seeking

83


1 clarification on the issue and Miss Nelson's concerns

2 about aspects of the interrogation."

3 Now, that is then followed in our file by the

4 document RNI-111-005, which is another document from one

5 side to the other describing what has happened,

6 referring to his previous conviction being quashed and

7 referring there to alleged threats and insinuations by

8 the RUC against his solicitor, Miss Rosemary Nelson.

9 Then reference to the offence, the murder of the two

10 constables, with which he was charged, and dealing then

11 specifically with the question of the evidence against

12 him and saying that concerns had been expressed about

13 its reliability, and in particular raising the issue of

14 his alibi and the one witness which, if you remember,

15 was the witness we saw referenced in the previous

16 document, of whom there were some questions about her

17 reliability, and asking in the end:

18 "Can you reassure us that the case against him does

19 not warrant these concerns?"

20 Now, at RNI-111-005 we see the process continuing.

21 We have now got to the end of July. This is an internal

22 memo within the Irish side. Paragraph 1 recites the

23 fact that Rosemary Nelson is the solicitor acting for

24 Colin Duffy. This appears under the heading

25 "Conversation with Rosemary Nelson", and it deals with

84


1 her acting for him in the murders and then recites in

2 numbered paragraphs 2 to 7 her points, presumably the

3 points made in the conversation.

4 It refers to a second bail hearing. There is then

5 reference to a previous refusal, the 12 witness

6 statements supporting his alibi and 12 statements

7 putting the Crown's witness away from the immediate

8 scene also, and then another reference to the witness

9 and the claim that the latter is a psychiatric case:

10 "She believes that a member the witness's family

11 intends to speak at tomorrow's hearing and make the

12 above point."

13 Then there are various other issues raised by her

14 apparently in paragraphs 3 and 4, and at 5, this:

15 "Nelson has raised the case with the Secretary of

16 State in person. Dr Mowlam has since written to her

17 confirming that she has asked the Chief Constable and

18 the Director of Public Prosecutions to keep her apprised

19 of developments."

20 Now, we will see that correspondence in a moment,

21 but pausing there -- and even making allowances for the

22 very heightened political situation in

23 Northern Ireland -- it must be an exceptional case in

24 which a defence solicitor raises an issue in this way

25 with the responsible minister, the responsible minister

85


1 in government. And indeed one might point out also

2 perhaps an exception when the Secretary of State agrees

3 to take up the case and pass on the concerns both to the

4 Chief Constable and to the Director of Public

5 Prosecutions:

6 "One must bear in mind at all times that these are

7 criminal proceedings which are ongoing, expressing

8 intense frustration at developments, the worst I have

9 come across in 14 years. She believes that if the bail

10 application is again refused, Duffy may have to wait up

11 to a year for a committal hearing."

12 Then perhaps the point of the conversation:

13 "She wondered whether it would be possible for us to

14 again raise the matter through the Secretariat.

15 I informed her that while the case was due to be

16 discussed at conference, in the event time did not

17 permit any discussion. She is aware that we have

18 already conveyed the concerns of inter alia the

19 Committee on the Administration of Justice with regard

20 to these charges."

21 So this is an example of the NGO involvement that

22 I mentioned earlier:

23 "I wonder whether it might be possible to raise the

24 case again in the light of or perhaps following

25 tomorrow's bail hearing. The issue was last raised with

86


1 the British side on 27th June. While the British side

2 undertook to convey our representations within their

3 system, we received no response as such from them."

4 What follows that conversation is at

5 RNI-111-005.500, 30th July. This is "Note to the

6 British side", the heading, and the log number. At 2:

7 "While the Irish side recognise that the case is

8 sub judice, we understand that the Secretary of State

9 has asked the Chief Constable and

10 Director of Public Prosecutions to keep her apprised of

11 developments. We would be grateful to receive similar

12 updates on the status of the case. For example, we note

13 that Mr Duffy was recently before the court for two bail

14 hearings. Advance notification of such developments as

15 well as their outcomes would be appreciated."

16 Moving on through the bundle, on 19th August,

17 another note, this time from Mr Dowling to the other

18 side, the British side, and it begins at

19 RNI-111-005.503:

20 "Further to our previous representations in regard

21 to the above, we would appreciate being kept advised of

22 any developments in this case."

23 Then a series of requests for information. They ask

24 at paragraph 3 to be told whether the

25 Director of Public Prosecutions has considered the RUC

87


1 evidence, and if so, whether he considers such evidence

2 sufficient to warrant prosecution. Then there is

3 a reference, a rather detailed reference, to some of the

4 evidence. And then at 5, this:

5 "Based on the representations we have had from

6 a variety of sources (the CAJ, Mr Duffy's solicitor,

7 Miss Rosemary Nelson, and responsible local

8 politicians), we have already expressed our serious

9 concerns that a miscarriage of justice could be in

10 question in this case."

11 Then they quote a lawyer speaking to the Irish News

12 on 9th August.

13 Sir, the run of notes continues and here at

14 RNI-111-007, we find a note of a delegation meeting.

15 Again, this is the Irish side making the note, which

16 records, under the relevant heading:

17 "Dowling raised the case of Colin Duffy, and asked

18 for a written response to our concerns regarding the

19 nature of the evidence against him."

20 The British official responds and says that:

21 "Our observations [the Irish observations] had been

22 circulated widely within the British system. However,

23 he repeated that as the case was the subject a criminal

24 investigation by the police, he was precluded from

25 commenting any further on the substance. He handed over

88


1 a note which offered the following information."

2 There in the quotation you will see the complaints

3 which I have mentioned briefly earlier. So by this

4 stage of the criminal process there were in addition, if

5 this is correct at any rate, four complaints going

6 through the ICPC system.

7 Sir, we move through September and see at

8 RNI-111-015 another note to the other side:

9 "I refer to previous correspondence in the above

10 ..."

11 This is Mr Dowling again:

12 "The Committee On the Administration of Justice

13 continues to have the deepest concerns about this case.

14 They believe that the single witness evidence against

15 Mr Duffy is completely unreliable and contradicted by

16 numerous other witnesses. The charges should be dropped

17 forthwith.

18 "Amnesty International has also expressed its

19 concerns regarding the safety of the charges against and

20 the detainment of Mr Duffy. We understand that the

21 brother of the witness has recently made a statement in

22 which he states that the witness's family are all aware

23 that the witness cannot be relied upon as a witness. We

24 are certain that she did not witness those shootings.

25 Overall, her brother paints a rather sad portrait of

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1 a disturbed and unreliable woman having the imagination

2 of a child and being very vulnerable to suggestion. He

3 indicates that his family have told police that the

4 witness can't be believed."

5 Sir, I don't wish to look at this now, but within

6 the Irish Government files, which were disclosed to us,

7 is a copy of the brother's statement from which those

8 quotations are derived. I don't wish to look at it, but

9 the reference for everybody's note is RNI-111-011. And

10 it appears in the form that we have it anyway under

11 a compliments slip from Rosemary Nelson addressed to the

12 Foreign Office, which must be the Foreign Office, so far

13 as the Irish Republic is concerned.

14 Now, at 5 you will see there reference to a letter

15 by Mr Chris Mullin, which we will see in a minute, to

16 the Secretary of State, Mo Mowlam, making points about

17 the case. And at 6, the Irish position is set out:

18 "We continue to have grave concerns that unless

19 reliability evidence emerges other than that provided by

20 the single prosecution witness, there exists a distinct

21 possibility that this case represents a miscarriage of

22 justice. We would be grateful for clarification on

23 whether we may expect answers to the specific points

24 raised in paragraphs 2 to 4 of our note, copy attached,

25 of 19th August."

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1 Sir, that is the note that we looked at a little

2 earlier which, if you remember, raised a series of

3 questions. That was the one, again for the note, at

4 RNI-111-005.503.

5 The response from the British side is along the same

6 lines, 16th September, as previous responses and it is

7 RNI-111-016:

8 "There is very little further the British side can

9 add to previous correspondence as the case is still

10 under criminal investigation. The current position of

11 the case is as follows: the police have not sent the

12 file to the DPP. The police have assured us that there

13 will be no undue delay, but they cannot give

14 a timescale. Once the DPP's office receive the

15 investigation file from the police, they can proceed to

16 make a decision on prosecution, and if they decide to

17 prosecute, set a date for a preliminary hearing. The

18 DPP could, of course, ask the police to carry out

19 further enquiries before reaching his decision."

20 Sir, coming to the end of the story, so far as this

21 episode is concerned, can we have, please,

22 RNI-111-016.501, (displayed) dated 2nd October. This is

23 an internal note from within the Irish side, from

24 Mr Dowling, back to, I think, the headquarters, as it

25 were, in Dublin. And 1:

91


1 "The British side here have just advised us in

2 confidence that the DPP has decided that due to

3 insufficient evidence he would not intend to proceed

4 with the case against Colin Duffy. Duffy's solicitor is

5 to be informed this afternoon."

6 At the bottom of the page they make the point that

7 in fact it looked as though the news had been leaked to

8 the media, probably for use in a broadcast this

9 afternoon.

10 So, sir, what that passage of documents shows, I

11 would suggest, is that in her acting for Mr Duffy and

12 for this client, Rosemary Nelson was in contact with, in

13 communication with, the Irish Government, and the Irish

14 Government, responding to her concerns, were raising

15 those concerns and raising questions with their opposite

16 numbers on the British side. And this is, as you will

17 understand, in addition to the, as it were, the ordinary

18 business of a solicitor, the ordinary business of

19 preparing a defence in this case and advancing the case.

20 Now, to complete the picture, I would like to look

21 at some of the press material. Can we have, please,

22 file 401, page 014, RNI-401-014. Now, this is, I think,

23 the first document from the press files that I have

24 shown you. Regrettably, quite a lot of the copies are

25 not very good and they often, as in this case, require

92


1 looking at more than one page because of the way in

2 which they have been copied.

3 Sir, this is the start of the piece. You can just

4 see in the large letters there:

5 "Accused denies killing RUC man."

6 26th June then. So 10 days after the murder, and as

7 we will have seen, a few days after the arrest. If we

8 turn to the next page, RNI-401-015, you will see here

9 material about the arrest, and the recitation in the

10 third paragraph of a previous case, and in the second,

11 I should have noted, the statement being issued through

12 his solicitor. The document then sets out the statement

13 that was made by Rosemary Nelson outside court. It is

14 not, I am afraid, a good copy, but in the second column

15 on the right, the statement there deals with the

16 previous case. And it follows in fact very much -- it

17 may have been the same statement -- the comments she

18 made in the clip that we saw only this morning.

19 Turning on to RNI-401-016, you will see another

20 piece from the same publication, I think, yes, the Irish

21 News, headlined:

22 "Lawyer's fury at RUC over Duffy arrest."

23 This is dated the next day, and in the middle column

24 you can see a substantial quote from Rosemary Nelson.

25 And in the third column, you will see a paragraph

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1 beginning:

2 "Mrs Nelson revealed that she has lodged two

3 complaints with the RUC over what she has termed

4 irregularities in police interviewing tactics and the

5 alleged denial of legal access to her client while he

6 was held at Gough Barracks, Omagh."

7 Then further down the column you will see reference

8 to CAJ, the Committee on the Administration of Justice,

9 saying:

10 "We were involved in a previous campaign to get

11 Colin Duffy released, and we are concerned that this

12 appears to be a similar case."

13 Then a quotation from Jean Forest, an individual who

14 has given a statement to the Inquiry, who has an

15 interest in matters in Northern Ireland, expressing her

16 concern and repeating the point of the denial of access

17 to Mr Duffy's solicitor.

18 The media coverage continues on the next page,

19 RNI-401-017, where there is another substantial report

20 of a bid for bail being rejected; this report on

21 30th July. And this sets out an account of the hearing,

22 and in the second column again, there are quotations,

23 lengthy quotations from Mr McGeehan, who is one of our

24 witnesses, of CAJ. Then lower down a quotation from

25 Rosemary Nelson, which mentions some of the matters we

94


1 have seen canvassed in the notes of the Irish side

2 concerning alibi and witnesses.

3 Now, moving on to RNI-401-018, this is the article

4 which you will remember the Irish were referring to in

5 which complaint was made by another lawyer, an English

6 lawyer, about the case and about the way it was being

7 handled, and that it appears that the English lawyer had

8 been visiting a client in the Maze Prison and took the

9 opportunity to make comment about the case. And there

10 are then more quotations from Rosemary Nelson about the

11 issues in the case and the way in which it was being

12 handled and the flaws, as she saw it, in the prosecution

13 approach.

14 Now, it continues on RNI-401-020 with more material

15 in the media which had earlier been referred to in the

16 Irish notes. We see this time the video film point:

17 whether or not that supported the Crown case. And

18 again, there are quotations here, this time including

19 quotations from the accused, from Mr Duffy himself,

20 a lengthy piece there. At the end, he thanks those who

21 supported him and asks for their continued backing.

22 Now, at RNI-401-021 in the same file, you will see

23 a piece in the middle suggesting that another NGO, again

24 one very familiar in our papers, the British Irish

25 Rights Watch and their director, Jane Winter, who is

95


1 also a witness to the Inquiry, taking up the position or

2 taking up the cause, as it were, of Mr Duffy and taking

3 it forward from there, at least according to the

4 headline, with the United Nations.

5 It is not clear whether that means with

6 Mr Cumaraswamy from this article, but in due course we

7 will see that that is exactly what happened. In other

8 words, that the case of Colin Duffy was raised by

9 British Irish Rights Watch specifically at this stage

10 with the UN Special Rapporteur.

11 By this point, he had announced, I think, his

12 intention of conducting a mission to Northern Ireland,

13 and this was material provided to him in the run-up to

14 the visit which took place in October.

15 In the next two pages, RNI-401-022 and then in

16 RNI-401-023 -- can we look at that one, please

17 (displayed) -- we will see the coverage in the same

18 newspaper, the Irish News, of the aftermath of the

19 decision by the Director of Public Prosecutions not to

20 pursue the charges against him. And this article too

21 contains a substantial quotation from Rosemary Nelson at

22 the bottom of the first column and, reading over, all

23 the way down the second and third columns of the

24 article, in which she sets out exactly her position in

25 relation to the case.

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1 Now, turning to other organisations and government,

2 can we look, please, at RNI-105-037.500. (Displayed)

3 This is a letter written by Jane Winter on

4 3rd July 1997, so a week or so after the charging, the

5 heading "Colin Duffy":

6 "Dear Mo, I am taking the unusual step of writing to

7 you about someone whose bail hearing takes place in

8 Northern Ireland tomorrow.

9 "Normally, we would not seek political intervention

10 in such circumstances. However, in this case we are

11 very concerned that Colin Duffy, who has been arrested

12 and charged with the two RUC officers brutally murdered

13 in Lurgan recently, is facing the nightmare of a second

14 miscarriage of justice. I enclose a submission which we

15 have today made to the United Nations on his behalf

16 which I hope you will study carefully. The only

17 documents I have not included are copies of the witness

18 statements, as they may form part of legal proceedings

19 if this case comes to court. However, I have myself

20 studied the statements and enclose a true summary of the

21 salient points."

22 Sir, pausing there. Sir, if I may, first of all

23 Jane Winter recognises in the second paragraph that

24 seeking political intervention in criminal proceedings

25 is not a usual or normal thing to do, certainly not for

97


1 her organisation. Secondly, it is the case obviously,

2 as reported in the newspaper, that there was

3 a submission made to the United Nations by her, her

4 organisation. Thirdly, Jane Winter had been provided,

5 as we have seen, the Irish government had been provided

6 with copies of the witness statements in the case.

7 Now, the fourth paragraph expresses the concern

8 that:

9 "... one of the worst aspects of the many

10 miscarriages of justice that have been arisen in recent

11 years has been the length of time it has taken to put

12 matters right. In this case, it would be better for all

13 concerned to nip things in the bud."

14 Then she asks the Secretary of State -- and I quote:

15 "... to do all in your power to have this matter

16 scrutinised at the highest level and that you will let

17 us know the outcome."

18 Then can we just turn on to the next page in the

19 bundle, which should be RNI-105-037.501. Sorry, that

20 was a bad reference. Sorry, could we have

21 RNI-105-037.505. (Displayed)

22 Thank you. That was the request that was made by

23 the British Irish Rights Watch, and I don't think we

24 need to dwell on it but it sets out points that are

25 probably now very familiar from all the other documents

98


1 we have seen.

2 It talks about the circumstances in the case. Could

3 I, however, highlight one or two passages. Can we have

4 a look at the third paragraph, please. Thank you. You

5 will see the sentence in the middle of it:

6 "These shootings were of particular significance in

7 the tragic catalogue of killings that have happened over

8 the past 27 years of conflict in Northern Ireland. They

9 have sent a strong signal that the IRA is not yet ready

10 to declare a ceasefire. Many members of the public on

11 all sides of the community in Northern Ireland were

12 shocked and dismayed by the murders which were condemned

13 by politicians both locally and internationally. There

14 was considerable pressure on the RUC to arrest someone

15 for these murders swiftly."

16 Sir, I highlight that because that is, of course,

17 very much the suggestion I was making to you this

18 morning about the impact of these particular murders.

19 This was a document obviously prepared within days of

20 the murders, and that was how they were perceived by

21 this NGO at any rate and how their importance was

22 assessed at that time.

23 So as we go through seeing what happened in the

24 course of the case to draw it and, as a result,

25 Rosemary Nelson to wider attention, one mustn't lose

99


1 sight of the starting point, which was that these were

2 crimes which were in themselves regarded as significant

3 because of the message, the signal, that they sent out

4 and because of the troubling sense that people had that

5 they might mark a return to violence.

6 So when you are looking at the way in which

7 Rosemary Nelson, as a solicitor, was raising the profile

8 of the case, that is the case we are concerned with. It

9 was itself, as it were, already a serious, very high

10 profile, terrorist murder.

11 Can we turn to RNI-105-037.507, please. (Displayed)

12 There, to make the point I referred to earlier good, is

13 a summary of the statements and these were the

14 statements obtained as part of the defence and assembled

15 in order to mount the case on his behalf. So these had

16 obviously been, as she said, read and indeed summarised

17 by her in the course of her submission.

18 Then at RNI-105-037.510 -- can we have that? Thank

19 you -- you will see a much more detailed account which,

20 again, I don't think we need to dwell on, of the

21 objections that were taken to treatment after the

22 arrest, and that in turn, as I have said, led to the

23 complaints in the case.

24 Sir, so far as involvement of the Secretary of State

25 goes, can I next ask, please, for RNI-101-013.500.

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1 (Pause)

2 There is a technical hitch, in which case everybody

3 is going to have to trust me, because I am simply going

4 to tell you what it is. It is a letter dated 14th July,

5 an important letter, addressed to Rosemary Nelson at her

6 solicitor's practice address in Lurgan. It comes from

7 the Secretary of State, it begins in handwriting:

8 "Dear Rosemary, Colin Duffy ...

9 "We spoke about the case of Colin Duffy and

10 I undertook to write to the Chief Constable about it.

11 I have now done so and also copied Jane Winter's papers

12 to the Director of Public Prosecutions. I have asked to

13 be kept informed of developments in the case."

14 That of course is simply the other side of what we

15 have seen recorded in the Irish material, namely that

16 there had indeed been direct contact between the

17 solicitor in the case and the Secretary of State, and

18 the Secretary of State had undertaken to write both to

19 the Chief Constable and to the Director of Public

20 Prosecutions.

21 Now, it may be that the next one isn't in the bundle

22 either. Can we have a look, please, at RNI-105-053.504.

23 (Displayed) Oh, it is. Again, I don't think this need

24 detain us very long. It comes from Jean Forest and I am

25 showing you it because, if you remember, she was quoted

101


1 a little earlier. It is addressed to Mo Mowlam and

2 Jack Strand. I think that must be Jack Straw. And it

3 deals with her concerns, in particular in the fourth

4 paragraph, about the case. Here is an example of -- can

5 we have the fourth paragraph blown up, please.

6 Right. Here is somebody from New Jersey, who says

7 that she has been dealing for years with the situation

8 of Colin Duffy:

9 "I say without hesitation that the RUC in Lurgan

10 have targeted him since 1990 without let-up. This also

11 applies to his solicitor, Rosemary Nelson, whom they

12 have threatened with the same fate as Patrick Finucane.

13 Having failed to murder Colin Duffy in 1990, this is the

14 second miscarriage of justice and imprisonment directed

15 at him and his family within three years."

16 Now, if you look at RNI-105-054, you will see the

17 response to that, which is very much the response I have

18 indicated given by the civil servants from the British

19 side throughout. She is thanked for her letters. It

20 sets out the position that he has been remanded in

21 custody. He is presumed to be innocent unless proved

22 guilty:

23 "The question as to his innocence or guilt is for

24 the court to decide and it would not be right for the

25 Secretary of State for Northern Ireland or the

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1 Home Secretary to intervene in this process. I have

2 asked the RUC to comment on the allegations you've made

3 about the targeting of Mr Duffy and the threats against

4 Mrs Nelson. I shall write to you as soon as I receive

5 their response."

6 Then I think it is probably Jean Forest who has

7 added in handwriting:

8 "I won't hold my breath."

9 Could we then look, please, at RNI-105-061.

10 (Displayed) You will see that this comes -- I think it

11 is the first document we have seen coming from

12 Mr Cumaraswamy. It is actually signed on the next page, RNI-105-062

13 which you do not have. The reason I mention it is to,

14 as it were, follow the chain to its conclusion. And

15 what he does in relation to this matter is to set out

16 his concerns about this particular case, and obviously

17 in the course of doing so, makes reference to

18 Rosemary Nelson. And, sir, this would appear,

19 therefore, to be the result of the submission given to

20 him by the NGO, drawing the matter to his attention.

21 He takes it up with the Ambassador. You will see

22 him referred to at the bottom left-hand corner, and if

23 we can just turn to the top of the next page,

24 RNI-105-062, you will see that he adds in paragraph 2

25 his concerns about the incident on the Garvaghy Road,

103


1 about which we saw her interviewed this morning. And

2 there are the allegations which were made in that

3 complaint.

4 Can I draw to your attention the last sentence:

5 "According to the source ..."

6 And I imagine that was the British Irish Rights

7 Watch:

8 "... the RUC's ill-treatment of Mrs Nelson stems

9 from her legal representation of the Garvaghy Road

10 Residents Coalition and her public affirmation of

11 Colin Duffy's innocence."

12 Now, sir, that is a good moment to stand back,

13 because that comment, albeit made by a source but it is

14 a contemporaneous comment. And the suggestion it makes

15 rather bears out the suggestion I was making a little

16 earlier today, which is that, as certainly seen from

17 Rosemary Nelson's own side, the difficulties with the

18 police that she encountered stemmed from her work as

19 a lawyer and in particular in this letter the two

20 clients of all her many clients, including that smaller

21 group of prominent clients that I mentioned earlier,

22 these two clients -- the Coalition and Mr Duffy -- are

23 highlighted and the connection is made specifically in

24 relation to them.

25 Sir, is that a good moment for a break?

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1 THE CHAIRMAN: A very good moment, thank you.

2 (3.28 pm)

3 (Short break)

4 (3.41 pm)

5 THE CHAIRMAN: Yes, Mr Phillips?

6 MR PHILLIPS: Sir, there are just a couple more documents on

7 this theme I would like to show you. Could we look,

8 please, at RNI-105-075. (Displayed)

9 This is a letter from Amnesty,

10 Amnesty International, the well-known NGO. The copy

11 isn't very good, I am afraid, but it is dated

12 21st August. Again, it is addressed to the Secretary of

13 State and it is from the Secretary General writing from

14 London. Now, as you will see -- that will help a lot

15 actually if we can blow it up, thank you -- that the

16 theme is the same and the two aspects that we have seen

17 reflected in other correspondence are reflected here.

18 So it is the interrogation, charging and detention on

19 remand of the client and the treatment of the lawyer.

20 Then the familiar history is recited and the points

21 taken about the way in which the detention was handled

22 and if we turn over to RNI-105-076, (displayed) can we

23 look, please, at the last paragraph on this page. Here,

24 the substance of the letter in relation to

25 Rosemary Nelson is set out. I should note at this

105


1 point, sir, that I will be showing you other material

2 earlier and later in date which reached the NIO on this

3 topic. But just while we are looking at this letter,

4 which concerns the Duffy case, it is worth, I think,

5 taking a look at what is said here because it helps us,

6 above all, with chronology.

7 If you look at the second sentence:

8 "As you may be aware, since Colin Duffy's acquittal

9 in July 1996, Rosemary Nelson has been informed by other

10 clients that while detained under emergency legislation

11 and questioned in Gough Barracks, they heard police

12 refer to her in derogatory terms, accused her of holding

13 Republican political sympathies and utter death threats

14 against her. The organisation considers that such

15 comments against Rosemary Nelson and other defence

16 counsel made by members of the police violate

17 international standards which specifically prohibit this

18 type of conduct."

19 Then there are various principles of the basic

20 principles on the role of lawyers, which are summarised

21 and quoted. Principles 16 and 17, if I can just move on

22 to that sentence:

23 "... place a duty on governments to ensure that

24 lawyers are able to perform all of their professional

25 functions without intimidation, hindrance, harassment or

106


1 improper interference and adequately safeguard the

2 security of lawyers who have been threatened as a result

3 of discharging their functions."

4 Sir, that is, therefore, a reference to

5 principles -- I think we have the text in our bundles,

6 in fact -- which I would suggest underpin the points

7 about the need for lawyers in an effective legal system

8 to be safeguarded, as it puts it there, and protected

9 from intimidation, hindrance, harassment or improper

10 interference. Anyway, the letter continues:

11 "We request you inform us whether the alleged

12 threats have been investigated and of the outcome of

13 such investigations."

14 Then a general request about:

15 "... measures taken to inform all members of the RUC

16 and others that come into contact with detainees that

17 disparaging comments about a detainee's lawyer are

18 forbidden, to ensure that such incidents do not happen

19 in the future."

20 A final comment before turning the page. This is,

21 therefore, an example of something put by the

22 correspondent, not as a complaint but as a threat. In

23 other words, the burden of it, when it asks about the

24 alleged threats and for their investigation. That is

25 the way it is put. It is not -- and we will see this

107


1 time and time again -- characterised by the writer as

2 a complaint. They are concerned about the rather more

3 important question of whether it is a threat, you may

4 think.

5 Now, turning the page to RNI-105-077, can we look at

6 the first paragraph, please:

7 "Amnesty International is also disturbed to learn

8 about reports that Rosemary Nelson has received death

9 threats relating to her current representation of

10 Colin Duffy. The organisation requests that you provide

11 us with information about what measures are being taken

12 to protect Rosemary Nelson."

13 And again, this is one of those which puts the

14 matter very, very broadly indeed. Of course, there is

15 no particulars provided, no detail, but that is the way

16 in which it is put by Amnesty International.

17 Can we move to the third paragraph on the page,

18 please. Sir, I am drawing your attention to this simply

19 to point out that here Amnesty clearly have also written

20 their own letter and made their own contact with the

21 Director of Public Prosecutions in Northern Ireland to

22 express their concerns about the case. And for good

23 measure, as it were, they have two principles there from

24 another code, which they are citing in relation to the

25 conduct of the director.

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1 Now, the next document I wanted to look at -- and

2 indeed the last in this run -- is at RNI-105-112.

3 (Displayed)

4 This is a letter -- I am afraid we can't see it

5 because it is on the next page -- from Chris Mullin MP,

6 dated 4th September. It begins:

7 "Dear Mo.

8 "Mr Colin Duffy.

9 "Thank you for your letter of 14th July. Please

10 find enclosed a copy of a fax I have received from

11 Mr Duffy's solicitor, Rosemary Nelson, setting out the

12 sequence of events. As you will see, there are a total

13 of 12 alibi witnesses and the RUC appear to be relying

14 on a single witness of proven unreliability."

15 Again, sir, those are the familiar features of the

16 matter which we have seen at earlier stages:

17 "In addition, enormous irregularities appear to

18 surround the treatment of Mr Duffy, his solicitor and

19 his witnesses. This is as blatant a case of stupidity

20 and malpractice as I have come across. It appears to

21 indicate that those responsible for this investigation

22 have little or no interest in discovering who is

23 responsible for the murder of their colleagues, but are

24 instead wholly pre-occupied with avenging themselves on

25 Mr Duffy for previously escaping their clutches."

109


1 So again, in this rather highly coloured way the

2 connection is made between the acquittal on appeal of

3 the previous case and the preoccupation with avenging

4 themselves, alleged there by the MP on the part of the

5 police.

6 Can we turn over to RNI-105-113, please.

7 (Displayed) You will see his general conclusion:

8 "... classic illustration ... deep sickness within

9 the police and judicial system of Northern Ireland.

10 When this case collapses, as I have no doubt it will, it

11 will provide you with the opportunity for a root and

12 branch shake-up of the system which, despite the

13 scandals of the past resolutely declines to learn any

14 lessons and appears to a large extent to be rotten."

15 Note, please, if we can go back to the full page and

16 the very last lines under "Enc" -- can we have those up

17 so we can all see them? Thank you.

18 This is a letter which received wide distribution in

19 copy and you will see reached the Chief Constable and

20 the two political leaders then in Northern Ireland,

21 Seamus Mallon and David Trimble, as well as

22 Rosemary Nelson herself. And the first copy was

23 reserved for the Chief Justice in Northern Ireland.

24 Turning on, RNI-105-114, now. Again, because we

25 don't have the hard copy files, you can't flick through

110


1 them with me, but this is the enclosure that he referred

2 to. If you remember, he said:

3 "Please find enclosed a copy of a fax I have

4 received from Mr Duffy's solicitor."

5 So this document which goes on to page RNI-105-116, is

6 essentially, or would appear to be at any rate,

7 a briefing by Rosemary Nelson to Chris Mullin MP on all

8 of the points that we have been through.

9 Sir, that is the last letter I wanted to show you in

10 this passage of material and correspondence, and what

11 I hope I have shown is that very shortly after the

12 charges were laid, indeed in the case of the Irish,

13 before the charges were laid, as it were, before the

14 case even came on to her desk, Rosemary Nelson was not

15 only fighting her client's corner in terms of what was

16 required for the criminal proceedings, but also taking

17 it to much wider exposure: Through the Irish government

18 and its civil servants to the NGOs, abroad -- we have

19 heard, seen some American involvement -- to the media

20 and also to politicians, not only Mr Mullin, whose

21 letter we have just seen in the House of Commons in

22 London, but also to the senior government minister in

23 Northern Ireland at the time, the Secretary of State,

24 who had obviously spoken to her in the middle of July

25 about the case and had promised to pass on her concerns

111


1 to both the Chief Constable and the Director of Public

2 Prosecutions.

3 So, sir, when we talk, as I have been, about cases

4 raising her profile and the issue of whether or not by

5 making her more prominent, made her more vulnerable.

6 This documentation shows, I think, so that it simply

7 cannot be doubted, that she was involved, certainly in

8 this case, in that process. She was part of the motor,

9 the machine that made the cases but also that made her

10 more prominent. She drew in attention. She drew in

11 attention not only to her client and his concerns and

12 the injustice, as she saw it, of his position, but also

13 and very clearly to herself.

14 Now, sir, as I have said repeatedly, the danger we

15 face, if we are not careful here, is of taking an

16 example, even an example as striking, you may think, as

17 that one, and seeing it in isolation. Therefore, this

18 is perhaps the moment for something of a corrective,

19 because I have already mentioned, I think, that

20 I intended to say something much more generally about

21 lawyers acting in Northern Ireland and the evidence, the

22 material, that we have obtained on that topic, and that

23 is what I would like to turn to now.

24 Now, sir, this is another topic with substantial

25 history, which long pre-dates these events, the events

112


1 with which we are particularly concerned, and which has

2 been a feature of writing and comment about the

3 political and legal situation in Northern Ireland for

4 many, many years -- or had been before her murder.

5 Therefore, as with the policing topics that

6 I attempted to outline only this morning, it is

7 something where, although we have gathered together

8 a lot of material, I don't propose in this opening to do

9 more than flag up those issues that I think should be

10 identified before we start to hear the evidence.

11 Now, so far as that evidence and the material we

12 have collated is concerned, there is first of all in

13 file RNI-402, which we saw in the index yesterday,

14 a good deal of material going back over the years that

15 I have mentioned, which shows just some of the published

16 literature on this topic. And suffice it to say that

17 the material was growing and growing through all of the

18 years of the 1990s, certainly, which preceded the time

19 of her murder.

20 And the starting point for not only our bundle but

21 also for many of those who commented upon it is indeed

22 the principles that Amnesty International referred to in

23 the letter which I have just shown you.

24 Perhaps it would be useful to look at those very,

25 very briefly. Can we look, please, at RNI-402-007.

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1 (Displayed)

2 Can we blow up 16 and 17 at the bottom of the page,

3 please. Thank you. There is principle 16, as quoted by

4 Amnesty International:

5 "Governments shall ensure that lawyers are able to

6 perform all of their professional functions without

7 intimidation, hindrance, harassment or improper

8 interference.

9 "(b) are able to travel and to consult with their

10 clients freely both within their own country and abroad.

11 "(c) shall not suffer or be threatened with

12 prosecution or administrative, economic or other

13 sanctions for any action taken in accordance with

14 recognised professional duties, standards and ethics."

15 Then 17:

16 "Where the security of lawyers is threatened as

17 a result of discharging their functions, they shall be

18 adequately safeguarded by the authorities."

19 Clearly of relevance to us, 18:

20 "Lawyers shall not be identified with their clients

21 or their clients' causes as a result of discharging

22 their functions."

23 Sir, these are the relevant United Nations

24 principles in the document entitled "Basic Principles on

25 the Role of Lawyers" that was adopted at a meeting, I

114


1 think, in Cuba -- yes -- in September 1990.

2 Now, in the bundle there are, as I say, a large

3 number of generic documents showing how, in the very

4 particular context of Northern Ireland, NGOs and other

5 organisations expressed their concerns. And that is, of

6 course, in a sense the backdrop to the particular

7 concerns which were expressed often by the same NGOs for

8 Rosemary Nelson.

9 Can we just deal with it by putting it first into

10 the Northern Ireland context? The points here, I would

11 suggest, are very much the points that we looked at and

12 that I addressed you on this morning when we were

13 considering the issue of policing.

14 In one of the witness statements we have received,

15 what you may think to be a good point is made: that in

16 any adversarial system there is likely to be tension

17 between police officers, prosecutors on the one hand,

18 and defendants and defence lawyers on the other. And

19 there is nothing of itself unusual or out of the

20 ordinary about that. Indeed, it is a very familiar

21 phenomenon in many, many other countries, including in

22 England.

23 But the specific context in Northern Ireland was

24 different, as I have tried to explain. And thus it is,

25 I think, that the circumstances in which concerns grew

115


1 about the treatment of lawyers have properly to be seen.

2 Remember the comments made by Rosemary Nelson in her

3 interview, the longer piece of the four clips we saw

4 this morning, and the reference there to abrogation of

5 human rights. Lawyers working on criminal cases on

6 behalf of defendants had to conduct their cases,

7 discharge their professional duties against a background

8 of emergency legislation. That clearly was seen by

9 some, Rosemary Nelson being by no means the only one, as

10 to some degree, perhaps to a great degree, fettering

11 their ability effectively to represent the interests of

12 their clients, because to take an example, they were not

13 permitted to be present at some interviews in relation

14 to the types of case that I mentioned this morning. So

15 there would be a long period of interviews before the

16 situation arose where a lawyer might be present. And

17 the lawyers would not be present during the course of

18 the interviews, as certainly became standard in a lot of

19 cases in England.

20 And remember also that the interviews themselves,

21 conducted in these circumstances, were not, at least at

22 the beginning of the period with which we are concerned,

23 recorded. That, of course, meant, as I said this

24 morning, that whichever way you looked at it, it was

25 possible for unjustified false complaints to be made

116


1 about what had happened, seen from one perspective, but

2 on the other, for interviews to be conducted in a way

3 that was not appropriate, in which comments, things were

4 said which were not said in a professional way but

5 rather were intended to intimidate, distract or bully.

6 And it is, I would suggest, of some interest in our

7 case that the flow of complaints made by Rosemary Nelson

8 and her clients, so far as we can see, did not continue

9 at the same pace and intensity once the first video and

10 then the audio recording began to be introduced in the

11 holding centres.

12 Now, that is not based on any sophisticated

13 analysis; it is simply, as far as we can see, a fact,

14 that once we pass the 10th March moment for the

15 introduction of the first video recording, then it

16 becomes more widespread and then we get the general

17 position, video and audio recording at the beginning of

18 the next year, which I mentioned. There were no such

19 complaints.

20 Now, in England, we are used of course to complaints

21 being made about the conduct of police interviews; it is

22 fairly standard in criminal cases, or at least it was

23 when I did criminal cases. But what we are looking at

24 here is something very particular where, in the course

25 of interview, comments are made not about the client,

117


1 not abuse of the client but abuse or comment about the

2 lawyer.

3 Now, those cases, as I say, whether it is

4 a coincidence or not, appear to have ended once the

5 recording system came in, at least so far as

6 Rosemary Nelson was concerned.

7 Now, we will return to this complaints question in

8 a minute, but there is evidence from witnesses in this

9 case which makes a specific connection between the

10 circumstances in which the criminal proceedings were

11 conducted, on the one hand, and this business of the

12 incidence of threats and, in Rosemary Nelson's case at

13 least, of complaints as a result. So that the two have

14 to be seen together; they were both regarded, as it

15 were, as part and parcel of life, work as a defence

16 lawyer in Northern Ireland at the time.

17 Now, there were of course two views, or there would

18 be two views about why, if it were the case, complaints

19 of that kind ended when the recording came in. On one

20 side, of course, it would be said that the cynical

21 manipulation of the complaints system that some clients

22 had indulged in had been checked by the recording of the

23 interviews, because those records would show exactly

24 what had been said. On the other side, of course, it

25 would no doubt have been contended that the interviewing

118


1 officers were themselves checked in making the comments

2 they would otherwise have felt free to make before the

3 recordings were brought in.

4 But these conditions formed the background to the

5 concern that was expressed over the years about the

6 treatment of defence lawyers operating in this

7 particular system, governed in relevant terms by the

8 emergency legislation with these rules about access to

9 lawyers and about the way interviews were conducted.

10 And one can imagine lawyers feeling frustrated in not

11 being able to get access to their clients, and you will

12 see on the other side comment to the effect that, of

13 course, lawyers might otherwise, if they were allowed

14 access, misuse the access to their clients by persuading

15 them, advising them, to remain silent.

16 So in this context of Northern Ireland we have these

17 tensions, these opposing views, opposing forces, at

18 work, and you may well think that that led to the

19 particular conditions which so many lawyers themselves

20 comment on in the evidence that we have obtained.

21 Now, can we look now at a document at RNI-402-515.

22 (Displayed) Right. That is a bad reference, I am so

23 sorry. The document I was intending to refer to is the

24 document -- we can take that off the screen now,

25 please -- a document produced by 33 lawyers from

119


1 Northern Ireland on 14th January 1998 called "Equal

2 Protection under the Law", and it was one in which

3 a large number of lawyers practising in

4 Northern Ireland, including Rosemary Nelson, expressed

5 their concerns about the matters I have just mentioned

6 and more generally about the difficulties of operating

7 under the system in Northern Ireland.

8 But, sir, what we have is, in addition to that

9 generic material that I have mentioned, statements,

10 first of all from a large number of lawyers who

11 practised here at the relevant time, some of whom did

12 work which was similar in some respects to

13 Rosemary Nelson, and who speak of their own experience,

14 and we will call some of them, by no means all of them,

15 to give evidence in due course.

16 Now, again, I am not proposing to take you through

17 the detail of the evidence, but can I summarise what

18 they say as I see it in this way. Unlike, I should say,

19 the evidence of staff members that I mentioned earlier,

20 it is relatively easy to summarise this evidence and

21 that is because, although these lawyers obviously have

22 their own particular experiences and some worked in very

23 different parts of Northern Ireland -- some only did the

24 relevant kinds of criminal law at one time in their

25 career and have moved on since, so their experiences are

120


1 in that sense distinct -- they all have the same

2 refrain. They talk of similar comments being made in

3 interview to their clients by interviewing officers.

4 Their account of comments includes things with which we

5 are now familiar from the Rosemary Nelson complaints:

6 the association of the solicitor with a paramilitary

7 organisation, the suggestion of improper behaviour of

8 one kind or another.

9 But other points come up regularly in their

10 statements: the solicitor is only in it for the money;

11 the solicitor has a big house; is, by implication, doing

12 well out of the client's work and the misery of the

13 client.

14 Now, they tell the Inquiry that, as far as they

15 could see, the motivation for clients hearing comments

16 of this kind was to undermine the relationship between

17 the client on the one hand and the lawyer on the other.

18 And that seems at least a possible motivation. But

19 again and again they say that. Although no doubt in

20 particular cases some of the more threatening remarks

21 made them concerned for their own safety, they regarded

22 the comments made to clients as "par for the course".

23 Sir, again, as with Mr McKee this morning and his

24 statement, we have on the one hand what appears to be

25 general evidence of behaviour of this kind, comments

121


1 being made, following broadly similar lines in a very

2 large number of different lawyers' experience, but on

3 the other this attitude that, broadly speaking, it was

4 something which came with the territory, which came with

5 the job and it was important for them, and no doubt for

6 their clients, to get on with the job.

7 In the evidence and material we have about

8 Rosemary Nelson, that too comes through, that there is

9 an attitude, an approach by her which is that these are

10 matters which have to be dealt with and they come with

11 the territory, as she described it in her interview,

12 with the particular political situation in

13 Northern Ireland and, in fact, one must shrug one's

14 shoulders and move on.

15 The other things that comes through strongly from

16 this evidence is the attitude which members of the legal

17 profession took towards the complaints system. That is

18 clearly an important matter for us. In general, they

19 take the view that to have made a complaint to the

20 police would have been a waste of time.

21 Now, when we come to look at the complaints material

22 in more detail in a moment, we will see that in

23 Dr Hayes' report he specifically identifies this as

24 a flaw in the system; that not only the clients but also

25 the lawyers did not have faith in the system. They were

122


1 not prepared to make and pursue a complaint because they

2 did not expect it to yield any positive result, in that

3 case, one infers from this evidence both for the lawyer

4 and for the client.

5 Now, sir, I think I may have found by chance the

6 document I had given you the wrong reference to and I

7 would like briefly to look at it, if I can now find it

8 again. I think it is at RNI-402 in the second volume.

9 Sorry about this. Yes, actually can we have a look

10 first at RNI-401-002. (Displayed)

11 Yes, now, sir, this is in fact an earlier article.

12 Can we have it blown up, please. It is very difficult

13 to read. I draw it to your attention simply to

14 underline the point I made earlier, namely that this

15 issue is of longstanding because this is the piece in

16 1987, before indeed the murder of Pat Finucane, in which

17 14 solicitors in the north -- it was published in the

18 Irish Times -- hence that expression "in the north":

19 "... accuse the RUC of regularly harassing the

20 lawyers acting on behalf of clients being detained in

21 interrogation centres in Derry, Armagh and Castlereagh."

22 And they had issued a statement, and you will see

23 their names in the fourth paragraph. And we have on our

24 own witness list some of the solicitors who were

25 signatories to that article, to that protest, recorded

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1 there in the Irish Times.

2 Could we now look at RNI-115-341. (Displayed) This

3 is the document for which I had the wrong reference.

4 Can we blow it up, please. This is the point

5 I mentioned a little earlier about equality under the

6 law, and here are what we will see when we get to the

7 end of the document: 33 lawyers, including some who had

8 put their names to the Irish Times article, who signed

9 up to this declaration much, much more recently

10 in January 1998.

11 This is a protest on their behalf on a number of

12 points, including, if you look at the final paragraph on

13 this page, about, as they put it, their colleague,

14 Pat Finucane, and this was part of a general call then

15 for further investigation and enquiry into his death.

16 Can we turn to the next page, please, RNI-115-342.

17 Can we blow up that? Here you will see bearing out what

18 I was saying a little earlier a complaint at the top

19 about what was going on in the detention centres as they

20 saw it, and in particular reference to the treatment of

21 detainees and suggestion that no subsequent action,

22 disciplinary or criminal, against the officers

23 responsible. Then the denial of the right of detainees

24 to have their solicitor present during interrogation,

25 the point I made before:

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1 "... creates the circumstances in which such abuses

2 take place."

3 That, much more crisply expressed than I put it, is

4 the point here. And they call there for various

5 measures to be taken, starting with the Finucane

6 Inquiry; secondly, a root and branch review of policing

7 and the administration of justice with a view to

8 creating a framework which is accountable, democratic

9 and representative; thirdly, repeal emergency

10 legislation, close the detention centres, restore the

11 right to silence and allow for the presentation of

12 solicitors during interrogation, and then ban plastic

13 bullets.

14 In fact, looking at those points, some of which

15 again I have touched on today, there was already in

16 place within the RUC a review -- I have mentioned it

17 already -- there was certainly by June 1998 the

18 Patten Commission, which conducted a thorough and

19 comprehensive review of policing. Some changes were

20 being made, were made, in the early part of 1998, as

21 I have explained, in relation to the conduct of

22 interviews.

23 But, as I have said, it took the Patten Commission

24 and their report to ensure with their recommendation

25 that the detention centre issue in general was dealt

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1 with. The point about some at least of the matters

2 raised in the third bullet point is exactly as I said

3 this morning: to try to bring the system in

4 Northern Ireland into line with that which pertained in

5 England.

6 Of course, that call would become more and more

7 powerful as the security situation eased, and you will

8 see the way they put it at the end, which is to appeal,

9 as I say, to the principle of equal protection under the

10 law.

11 Now, we can see them all named on the next page,

12 RNI-115-343, giving their places of work and that list

13 includes a number of our witnesses, and indeed it

14 includes Rosemary Nelson.

15 Now, sir, the final thing I wanted to mention, and

16 only briefly at this stage, in relation to this body of

17 material and the historic concern about the alleged

18 intimidation of defence lawyers, the conditions in which

19 they had to work in Northern Ireland, is to draw what

20 I hope is the obvious connection between that topic and

21 the involvement with the criminal justice system, in

22 Northern Ireland generally and with Rosemary Nelson's

23 case in particular, of the UN Special Rapporteur,

24 because this was the platform, as it were, for his

25 mission.

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1 He had been in contact with NGOs who had been, as he

2 explains in his statement, supplying him with the sorts

3 of reports, including from British Irish Rights Watch,

4 that I have mentioned and which are in file 402, over

5 a number of years before he determined, in 1997, that he

6 would visit Northern Ireland officially and continue his

7 work as rapporteur over here. And that was the first

8 time that such a visit had taken place.

9 And in that way, as in the particular ways we have

10 been looking at earlier today, we see how there is, or

11 there becomes, an international dimension both to the

12 position of lawyers generally in Northern Ireland, there

13 being looked at on an international basis, but also and

14 as part of that so is the particular position, the

15 particular situation of Rosemary Nelson herself.

16 So it is that when Mr Cumaraswamy raises his

17 concerns -- we have seen him writing about one of the

18 cases and referring to the incident in July 1997, but it

19 is when he comes in October 1997 and returns to these

20 issues in his draft report that there is, I would

21 suggest at any rate, a notable increase in the political

22 significance here as a result of these international

23 concerns, of all of these matters.

24 Now, sir, the next topic is complaints but I am

25 going to propose that this is perhaps a good moment to

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1 stop.

2 THE CHAIRMAN: Yes, I think you have done very well today,

3 if I may say so. We will adjourn today until quarter

4 past 10 tomorrow morning.

5 (4.35 pm)

6 (The Inquiry adjourned until 10.15 am the following day)

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Opening submissions by MR PHILLIPS .............. 2
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Associated Evidence

Reference Title Description
105-037.501 - 037.504 Model Questionnaire to be Completed by Persons Alleging Arbitrary Arrest or Detention