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Full Hearings

Hearing: 23rd June 2009, day 129

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

on Tuesday, 23rd June 2009
commencing at 10.15 am

Day 129








1 Tuesday, 23 June 2009

2 (10.15 am)

3 Closing submissions by MR PHILLIPS (continued)

4 THE CHAIRMAN: Yes, Mr Phillips?

5 MR PHILLIPS: Sir, we had reached the point in the

6 chronology of 6 July 1997. There was some confusion in

7 the papers, I think, about the precise date, but it

8 appears that that was the day in the early hours of the

9 morning on the Garvaghy Road when the alleged assault

10 and abuse of Rosemary Nelson by police officers was said

11 to have taken place.

12 Sir, a detailed analysis of the evidence on that is

13 at 2.13 of chapter 2. I'm not going to take you through

14 that in any detail, but can I just offer some

15 submissions on the broader implications?

16 First, I would suggest that it would not be at all

17 surprising if this event marked some sort of turning

18 point in the relationship between Rosemary Nelson and

19 the RUC. And that's a point taken up, indeed, by the

20 family in their submissions at 5.2.83 at page 95/120. Its

21 place in the overall chronology that we have been

22 looking at is also important. These events occurred

23 about a fortnight after the arrest of Colin Duffy,

24 albeit that, as we have seen, they occurred many months,

25 at least nine months after the first recorded comment by




1 Rosemary Nelson about apparently abusive or derogatory

2 remarks made about her by police officers to her

3 clients, and in any event, of course, this was an

4 incident of a completely different order.

5 In all of the evidence that you have heard from

6 other lawyers in practice in Northern Ireland at the

7 time, there is simply nothing like it. It cannot,

8 therefore, on any view be said to fit in to any broader

9 pattern. What is alleged here is both physical violence

10 and public abuse of her by a number of police officers

11 in the heat and, indeed, the anger of a highly

12 contentious public protest.

13 I would make this further submission about its

14 place: it could not fairly be said to fit in to the

15 supposed campaign which we looked at yesterday involving

16 what Mr Donaldson described as the Lurgan Nine, because,

17 again, it simply does not fit the pattern, and in

18 fairness, as we shall see, the PSNI do not suggest that

19 it does.

20 However, it may, in my submission, be fairly seen as

21 having brought to a head or to some sort of logical

22 conclusion the conduct, the alleged threats and abuse,

23 of the preceding months. Here, the concept of crossing

24 the line takes on a wholly new meaning. You have heard

25 evidence about it from a completely different




1 perspective. It was B597, for example, who used that

2 expression in relation to what he believed, on the basis

3 of intelligence reporting, to be Rosemary Nelson's

4 unprofessional or even criminal behaviour.

5 It was also a term that other Special Branch

6 witnesses used. For example, B509 on Day 83, pages 47

7 and 48.

8 But here, at the police lines on the Garvaghy Road,

9 what is alleged in short is that some police officers

10 crossed the line, the line that separates words from

11 violent actions. And so however deplorable the language

12 allegedly used about her in interviews, the events on

13 this day, if her account is to be believed, took matters

14 to a new level and it is for that reason that I suggest

15 that it would be surprising if this incident had not led

16 to a change of attitude on her part towards the police.

17 You may also want to consider whether the behaviour

18 of some police officers, if her account is to be

19 believed, during that day was the result of their

20 attitude to her, the way they regarded her, and whether

21 that attitude was, as it were, formed in the heat of the

22 moment in the press of events or whether it was rather

23 more entrenched or established than that.

24 Remember, please, that what is alleged here is not

25 just violence, but abuse of a kind which you may think




1 is itself significant. "Rosemary, you Fenian fucker,"

2 is what she says was said to her in the course of that

3 incident.

4 What I would like to do, sir, is to play at this

5 point the interview that she gave very shortly after

6 these events so that we can be reminded of her own

7 account.

8 (video played)

9 Sir, this is obviously not a sophisticated piece of

10 filming, but you may think it is powerful evidence

11 nonetheless. And from her demeanour, from her manner,

12 but also, I would suggest, from her voice, the shock and

13 the hurt is clear. And it would be bold indeed, I would

14 submit, to make the suggestion that she had made up or

15 fabricated the account which she gave so shortly after

16 the events she described.

17 And so far as the immediately contemporaneous

18 evidence is concerned, can I ask you to look, please, at

19 chapter 2.13.9 of our submissions, at 2-298 (displayed),

20 because here in this and the succeeding paragraphs, the

21 evidence that you have heard from Mr Mageean, from

22 Paul Nelson, from Nuala McCann and, indeed, in the short

23 written statement taken by Mr Mageean the next day --

24 RNI-301-004 is the reference; we needn't look at it

25 now -- there you have material which is immediate, in




1 the immediate aftermath of the event and it includes,

2 for the avoidance of any doubt, evidence given by

3 individuals who knew her well about her injuries.

4 Much has been made during the hearings of the fact

5 that she didn't see a doctor, she didn't go about things

6 in the way that the archetypal plaintiff in the

7 archetypal case involving an assault or injury of this

8 kind should do. All of that is absolutely fair, so far

9 as it goes. The question is simply this: did she in

10 fact sustain injuries? Are they the sort of injuries

11 which are consistent with the sort of incident which she

12 describes? And there we have summarised the evidence on

13 that for you.

14 And, again, of course, you are faced with the

15 question as to the credibility of those witnesses. In

16 describing what they saw on her and what she said to

17 them about what had happened to her, were they mistaken,

18 or worse? You have seen them, all of the witnesses

19 I have mentioned, and you will have an opportunity,

20 obviously, to form your own views about their

21 credibility.

22 Now, it is important to stress in this that the PSNI

23 in their submissions -- they are the Full Participant

24 most obviously involved here -- do not suggest that this

25 incident was fabricated or concocted; rather they,




1 rightly, counsel caution in approaching the evidence

2 that you have about events which were fast-moving, where

3 accounts are inconsistent, where there are elements of

4 confusion, for example, in relation to timing, and where

5 feelings were running very high. And the relevant

6 paragraphs -- we needn't look at them now -- are 6.27 to

7 6.29 in particular.

8 Now, so far as our broader chronology is concerned,

9 as I say, the key question is what is the significance

10 of this incident, of these events, within the broader

11 range? And in particular, when you are evaluating the

12 suggestion that the complaints, the broader complaints,

13 the Lurgan Nine complaints, as Mr Donaldson puts it,

14 were simply part of a campaign of concocted allegations

15 designed to bolster Colin Duffy's complaints and to

16 secure his release. This event comes very shortly after

17 his arrest. It is not, by the PSNI, put into that

18 category and you may think cannot conceivably be made to

19 fit the pattern.

20 Now, sir, just on this question of whether this

21 event marked a turning point, again, in our written

22 submissions at 2.13.18, pages 320 to 324 of this

23 chapter, we summarise the evidence from other witnesses

24 about what they believed was the impact of this incident

25 on Rosemary Nelson. Again, Mr Mageean and Ms Winter are




1 there cited. You will remember Mr Mageean describing

2 her as being extremely shaken, visibly frightened when

3 he spoke to her and took the statement, and Ms Winter

4 said that when she spoke to her, Rosemary Nelson, on the

5 phone, she was still very upset. But they both went on

6 to suggest that this was, indeed, a watershed or,

7 indeed, a turning point, with Mr Mageean saying in his

8 statement:

9 "It is certainly my perception that a rubicon was

10 crossed at this point in time and things changed for

11 Rosemary for the worse."

12 And it is something to which she herself adverted in

13 her evidence to the Congressional Sub-committee, and if

14 he could look at that now, please, at RNI-113-044

15 (displayed).

16 Now, you will remember this very well,

17 29 September 1998. She explains to the Sub-committee her

18 difficulties and the way she saw them, and you will see

19 in the third paragraph she talks about this incident in

20 a little detail. And the next paragraph begins with the

21 words:

22 "Since then, my clients have reported an increasing

23 number of incidents."

24 Now, it is obviously difficult or perhaps unwise to

25 attribute too much significance to the use of words in




1 this context, but on the face of it at least, she is to

2 be taken in this statement as regarding this as some

3 form of pivot point in her relationship with the police.

4 And, as we will see, in fact there was, if anything, an

5 increase in complaints activity, if I can put it that

6 way, after this time. So although much of our attention

7 has been focused on the LAJI cases, which had their

8 origin earlier, as we will see when we look at the later

9 chronology, in fact there are a good number of

10 complaints that come up after this and certainly there

11 is a great deal more complaints-related activity on her

12 part after this point.

13 Now, so far as her own reaction is concerned, as

14 I say, we have the evidence of the witnesses who spoke

15 to her and knew her well, but it is surely a matter of

16 common sense to infer that she will have reflected after

17 this that this incident at the very least was an example

18 of her being treated as far from like a professional as

19 it was possible to imagine.

20 She may well have considered that if her role as the

21 Coalition's lawyer had not protected her from this sort

22 of treatment, then she was indeed vulnerable. She may

23 also have thought that the treatment which she had

24 experienced was a fair reflection, or at least some

25 reflection of the way in which she was regarded by at




1 least some police officers. And the final citation from

2 the evidence I would like to mention in this connection

3 is from her brother, Eunan, who told you, you may

4 remember, that this was certainly for him a significant

5 moment or milestone.

6 I asked him:

7 "Is it possible for you to help us again on the

8 question of the dates, the sense that she herself wished

9 to change the way things were? Can you remember when

10 you first became aware of that?

11 "Answer: Once again, probably the late 1990s.

12 "Question: Yes, so do you mean, for example, a year

13 or two before she was murdered?

14 "Answer: I would say probably about 1997/1998,

15 yes."

16 Then he said:

17 "I think whenever Rosemary came into direct

18 confrontation in the Garvaghy Road in 1997, that was

19 maybe the beginning of the turning point."

20 That is Day 20, page 142, lines 3 to 14.

21 Now, the final thing I wanted to say about this is

22 of course that for the police officers concerned too

23 this represented something of a turning point: if her

24 account is to be believed, some of them crossed the line

25 that I mentioned earlier, and you will want to consider




1 and reflect upon whether this was no more than a marker

2 post, signalling the way in which some of them had come

3 to regard her by this point, or rather whether it marked

4 a step forward, a moment when something changed, as it

5 were, on that side.

6 It certainly, if she is correct, appears to be

7 a moment when, regardless of her professional status,

8 her role in these event, she was regarded as fair game

9 for this sort of disgraceful treatment, treatment which

10 is understandably described by the PSNI in their written

11 submissions as "utterly reprehensible".

12 Now, sir, so far as the chronology is concerned, the

13 next event I want to mention is the arrest of

14 Trevor McKeown which came just over a week after this on

15 15 July. He was arrested, you remember, for the murder

16 of a young Catholic woman, Bernadette Martin. Again,

17 just marking where we are in the chronology, this is

18 some three weeks after Colin Duffy's arrest and, as

19 I say, just over a week after the alleged assault on the

20 Garvaghy Road.

21 You know, of course, that his complaint in his

22 statement to the Inquiry is focused on the allegation

23 that he was incited in effect to murder Rosemary Nelson:

24 why did you do this when you could have been doing that?

25 If I can put it that way. It is important to remind you




1 that this complaint did not emerge for many years after

2 his arrest.

3 So far as the other features of that are concerned,

4 can I just highlight a few.

5 The first is that the officer identified, one of the

6 two said to have interviewed him at the key moment, is

7 P121, who features in a number of the other complaints

8 that we have looked at, and the evidence on this is

9 treated in 2.15 of chapter 2 of our written submissions.

10 Now, this is an example of those parts of the case

11 in which you have a submission in writing from the PSNI,

12 I think repeated orally by Mr Donaldson, to the effect

13 that because Mr McKeown refused to give evidence to you,

14 having provided a witness statement to the Inquiry, his

15 evidence should be entirely ignored.

16 It is said in paragraph 5(b) at RNI-920-068, for

17 example, that it would be entirely improper to attach

18 any credence to his -- Mr McKeown's -- witness

19 statements.

20 And in his oral submissions, Mr Donaldson said --

21 this is Day 126, pages 10 to 11:

22 "We feel that in applying those principles ..."

23 Principles, I should say, in a ruling of yours,

24 which I will mention in a moment:

25 "... you could not possibly give any credence to the




1 account given by Mr McKeown who was not prepared to come

2 and give evidence and be examined about it."

3 Now, so far as those submissions are concerned, I'm

4 sure you don't need any help from me in dealing with the

5 suggestion that you would be acting improperly in at

6 least the usually understood sense of that word in

7 taking into account and considering all the evidence,

8 including the written statements that Mr McKeown has

9 provided. Indeed, it is very hard to see how it could

10 conceivably be improper on your part to consider, for

11 example, the statement which solicitors on your behalf

12 have obtained for the purposes of the Inquiry. Indeed,

13 a rather stronger argument, though not perhaps a strong

14 argument, might be made to support the suggestion that

15 it would be improper for you to ignore evidence which

16 was obtained on your behalf by the solicitors to the

17 Inquiry.

18 I'm going to put that to one side. So far as the

19 family were concerned, they, in the person of Mr O'Hare,

20 if you remember, suggested rather that the evidence on

21 this topic needed to be carefully considered, to be

22 approached with some caution, but that it was not the

23 right approach for you simply to disregard those

24 statements by Mr McKeown.

25 That, I would suggest, would in fact be entirely




1 consistent with the ruling that you made and which

2 Mr Donaldson mentioned. It is a reasonably short

3 ruling. It came on Day 51 and it came, if you remember,

4 in response to, as it were, the submission for the first

5 time round by Mr Donaldson. And you said, sir:

6 "With regard to the second limb of Mr Donaldson's

7 submission, we do not accept the proposition that

8 because an allegation is made by a convicted murderer

9 against police officers involved in the murder

10 investigation, it is per se without any credibility. It

11 is an allegation clearly relevant to our Terms of

12 Reference. It has been in the public domain for over

13 five years and was specifically referred to by

14 Justice Cory in his report.

15 "In our judgment, we must consider the allegation.

16 This cannot satisfactorily be done without giving

17 Mr McKeown and the two RUC officers the opportunity to

18 give evidence."

19 You remember at this stage there was an attempt to

20 prevent even that happening. Then you continued:

21 "In considering the allegation, we shall take into

22 account all of the evidence and material before us,

23 which includes McKeown's evidence. In weighing up

24 McKeown's evidence, we shall bear in mind that McKeown

25 is a convicted murderer. We shall consider matters,




1 including when the allegation was first made, to whom it

2 was made and the circumstances in which it was made,

3 throughout, fully heeding the principle that a very

4 grave allegation such as this requires the basis of very

5 convincing material before it can be given any

6 substance."

7 As I say, that is Day 51, pages 4 and 5, and it is

8 on that basis that we have addressed these issues in our

9 written submissions; in other words, to give you

10 a summary of the material on the basis that you do

11 indeed intend to consider all of it and then weigh it up

12 as you see fit.

13 Now, sir, so far as the significance of this matter

14 is concerned, that is, again, something set out in the

15 written submissions and in particular in the section

16 headed "Observations" at chapter 2, page 345. And it

17 continues, this section, I should say, until 347, in

18 which, having set out all the material before you,

19 various points about it are put before you. Can I just

20 highlight some of them.

21 If credible, these allegations are obviously

22 significant in that they come, as it were, from the

23 other side. What is alleged here was not said to

24 a resident of the Kilwilke Estate, to a lieutenant of

25 Colin Duffy, not even to a client of Rosemary Nelson,




1 but to a Loyalist who was in due course convicted of

2 a sectarian murder.

3 Now, that is the more important, or rather those

4 points of distinction are the more important precisely

5 because they do fit into the PSNI's chronology, in the

6 sense that these are events which were indeed taking

7 place shortly after the arrest of Colin Duffy.

8 So far as McKeown himself is concerned, you may also

9 think that it is significant that he is as good an

10 example as one could wish for of the sort of person who

11 truly did pose a threat to Rosemary Nelson, the sort of

12 person about whom Mr Harvey made submissions on Day 127.

13 He is a man who was prepared to, and did, commit

14 sectarian murder. And this, as Mr Harvey suggested to

15 you, was in a sense the real danger, namely that if

16 officers were prepared to make these sorts of comments,

17 the sorts of comments alleged by Rosemary Nelson's

18 clients and put forward in complaints, then there was

19 the risk that those sorts of remarks would find their

20 way into interviews of a very different kind, with

21 individuals who were dangerous and who were by their

22 very nature opposed to what they believed

23 Rosemary Nelson stood for.

24 It is no doubt for that reason that Mr O'Hare in his

25 oral submissions forged a link, you may remember,




1 between the context in which these remarks were

2 allegedly made to McKeown and the business of the naming

3 of solicitors, including Rosemary Nelson, in the draft

4 Cumaraswamy Report. And you remember he also reminded

5 you of that part of Christine Collins' evidence when she

6 described her immediate reaction to the draft and her

7 concern about the risks entailed in naming the

8 individuals. And, of course, it was on that basis,

9 rather than on what Sir Ronnie Flanagan said about the

10 draft, that the Rapporteur was persuaded to make

11 amendments to his draft report.

12 Now, the other aspect of the complaint that I would

13 like to draw out at this stage is this: that whatever

14 else it shows you, I would suggest it shows you that

15 Rosemary Nelson was indeed hated by Loyalists, by this

16 particular part of the community. And, therefore, that

17 if any such remarks had been made to him and others like

18 him, they would have been heard receptively, if I can

19 put it that way. And I'm going to mention just a couple

20 of quotations from his statements, the first to the MIT,

21 RNI-405-037 -- we needn't look at it -- where he said:

22 "It would be true to say that she ..."

23 Rosemary Nelson:

24 "... was regarded as a hate figure within Loyalist

25 circles."




1 In his statement to the Inquiry, he said at

2 paragraph 21:

3 "Rosemary Nelson was hated by Loyalists."

4 And then at 26, he remarked that she was hated and

5 detested by the Unionist population.

6 Now, whatever else you make of the rest of his

7 evidence or, indeed, the rest of the evidence on this

8 topic, you may think it safe at least to rely on that,

9 not least because it is so obviously consistent with the

10 other evidence you have heard from a number of

11 witnesses, including police officers and, of course,

12 with material that you have considered, of which the

13 "Monster Mashed" leaflet is simply the most lurid

14 example.

15 Now, the other aspect of his written evidence which

16 I want to mention is in his second statement to the

17 Murder Investigation Team, 23 June 2003 -- again, we

18 needn't look at it, but it is at RNI-813-782 -- where he

19 described the reaction of other Loyalist prisoners when

20 he says that he disclosed to them what had been said to

21 him. He said:

22 "None of them seemed surprised by the conversation."

23 Then he returned to this in his statement to the

24 Inquiry, when he said:

25 "No one was shocked when I told them about it."




1 And of course, again, if there is any substance in

2 that evidence, then you may think it opens up a vista

3 where comments made in this context and of this kind

4 were not apparently any surprise to those who were

5 listening to it, suggesting, of course, that this was

6 not happening for the first time.

7 Now, of course, in relation to all of these points,

8 as well as the central allegations that he has made,

9 McKeown has, by his own refusal to cooperate with you

10 beyond providing a statement, deprived himself of the

11 chance of explaining, justifying, what he said in his

12 statement and has also, of course, not been tested upon

13 his evidence by counsel on your behalf.

14 The same is also true -- and this is a point we make

15 in our written submissions -- of his then solicitor who

16 has, perhaps more surprisingly, declined to cooperate

17 with the Inquiry. But as in other areas of your work,

18 that does not, in my submission, mean that you simply

19 pack up, decide that nothing can be done and stop

20 thinking about it. You will, I know, do what you can

21 giving weight to these considerations with all of the

22 material that you have.

23 Now, in terms of our chronology, I want to remind

24 you that at the end of July, P146 makes his unsuccessful

25 application for dispensation and does so in trenchant




1 terms -- we are not going to look at it now -- but

2 including, at RNI-209-010, the sentence about

3 Rosemary Nelson and her cooperation with his

4 investigation, which reads as follows:

5 "In addition, it appears clear that Rosemary Nelson,

6 the subject of the alleged threats, is reluctant to get

7 involved in the investigation into the matter."

8 So, far from pushing the complaints for all they

9 were worth as part of a concerted defence strategy, in

10 fact the investigating officer was getting nowhere with

11 her, and in his view that was because she was "reluctant

12 to get involved".

13 Now, in terms of the remaining period before the

14 DPP's direction at the beginning of October, you will

15 remember the key event in August 1997 is that the

16 Rapporteur takes up on her behalf -- RNI-115-129; we

17 need not look at it now -- both the

18 Colin Duffy/Rosemary Nelson complaints and the

19 assault -- the alleged assault on the Garvaghy Road --

20 and demands a response from the British Government.

21 In the middle of the next month, on 15 September,

22 Rosemary Nelson writes to the Chief Constable

23 threatening legal action, not a complaint, threatening

24 legal action arising out of her alleged assault. That

25 is in due course treated as a complaint, and you will




1 remember all the evidence about how that complaint

2 proceeded. In fact, rather later, legal proceedings

3 were indeed begun.

4 It is on the next day, 16 September, that she

5 attends to give a statement at last, as no doubt P146

6 would say, to him about the Colin Duffy/Rosemary Nelson

7 complaints. Can we look at that, please, at RNI-203-010

8 (displayed)? You will see the purpose of the statement

9 is to provide some further information regarding the

10 complaint, and that's the complaint relating to

11 Colin Duffy. And it is, I think, not until

12 RNI-203-012 -- can we have that, please? (displayed) --

13 right at the bottom of the page, third line up that she

14 says, having gone through the detail of the Duffy

15 complaints:

16 "This appears to be part of an ongoing pattern.

17 During the course of this year, I have had quite

18 a number of clients who have been taken to the police

19 office at Gough. Almost invariably, there have been

20 reports of derogatory comments being made and sometimes

21 threats that I was going to die. At one point it got so

22 bad that I got the Committee on the Administration of

23 Justice to come down and take statements from my clients

24 independently. I do not have dates and times or

25 identity of the detectives but the CAJ should have that,




1 and I give you my permission to approach them to obtain

2 copy of these statements. Paul Mageean, solicitor, came

3 down and recorded them."

4 And that is that. Those are the circumstances in

5 which she made reference to what were the LAJI

6 complaints, by this stage, some six months after

7 Mr Lynch wrote his letter; no details, simply referring

8 to the fact that Mr Mageean had come to take the

9 statements, and before that, of course, to the pattern,

10 as she saw it, the ongoing pattern, of behaviour.

11 In terms of activity by Rosemary Nelson during the

12 period when Colin Duffy was on remand, in terms of

13 activity to advance the other complaints, that, as far

14 as one can see, is that. And it wasn't in fact until

15 nearly three weeks after his release, on

16 20 October 1997, that P146 eventually obtained the

17 statements of the two Toman brothers and at last some

18 substance, some shape, was able to be given to that

19 investigation.

20 Now, what I would like to do very quickly is to

21 remind you of what happened after the DPP's decision,

22 because, as I said earlier, what it actually shows is

23 something of an increase in activity, complaints

24 continued to come in, and there is altogether much more

25 on the files, ironically, after the release of




1 Colin Duffy than there was before.

2 Now, very briefly, the Brian Loughran arrest took

3 place on 16 October. He was released the next day. We

4 have dealt with his complaint at 2.9, and that is

5 obviously a matter that came up after it could

6 conceivably have been any assistance to the Colin Duffy

7 campaign.

8 Later in October, as I have said, Mr Mageean handed

9 over those statements, just before the visit of the

10 Special Rapporteur, and it was he, you remember, at his

11 press conference at the end of the visit, on the 30th,

12 that urged solicitors to use the system. And you will

13 see that report -- and we are not going to look at it

14 now -- in The Irish News article of 31 October at

15 RNI-401-030, where he is quoted as saying:

16 "It was unfortunate that the solicitors had not made

17 complaints to the police and the Law Society."

18 Anthony Simmons' statement that became part of the

19 complaints is on 6 November, the same day as

20 Brian Loughran's. On 19th of that month,

21 Rosemary Nelson sent in C138's statement and, indeed,

22 Brian Loughran's statement to P146. And it is the next

23 month, if you remember, in December that Shane McCrory

24 is arrested. We deal with his complaint at 2.10.

25 And in February 1998 is the arrest of Gary Marshall




1 on the 21st. We deal with that at 2.11. It is

2 important to remind you about that one, of course, that

3 the entire ICPC investigation of Gary Marshall's

4 complaint concerned matters other than those which are

5 relevant to the Inquiry, which with, if you remember,

6 the allegations about Rosemary Nelson were only ever set

7 out in the statement he made, again, to Paul Mageean of

8 CAJ in, I think, early March 1998 and were never

9 investigated by the ICPC.

10 That's no criticism of the ICPC or the police

11 officers; it is just what happened and it is perhaps

12 a reflection of the disjoint we saw earlier between what

13 the NGOs, solicitors were doing and the complaints

14 system.

15 The final complaint, if you remember, comes a good

16 deal after that, namely at the very end of June 1998,

17 over a year in fact after Colin Duffy's arrest for the

18 two police officer murders and many, many months after

19 his release. That is dealt with, the James Donnelly

20 case, at 2.12.

21 Can I just draw out one or two features of that,

22 because it in some ways stands on its own? First, it

23 originated not in Gough, but in Castlereagh. Secondly,

24 it is the only complaint, as I have said before, where

25 there was any form of recording. The silent video




1 recording was in place by this stage. Thirdly, the

2 interesting thing about this case -- and, again, not

3 easily squeezed into any pattern -- is that

4 Rosemary Nelson was not his solicitor, if you remember.

5 And, indeed, at the moment when a complaint was made by

6 her on his behalf, he had never even met her.

7 It was in fact Mr Vernon who attended the holding

8 centre and to whom he, James Donnelly, complained about

9 what had happened during the interviews. And, of

10 course, this is another example, I mentioned earlier,

11 where complaints were made very promptly indeed; they

12 were made during the detention.

13 So if, for example, you are considering a suggestion

14 that all of this was fabricated and that Rosemary Nelson

15 was an intimate part of that, a key player in that, in

16 looking at the simple facts as I have recited them of

17 this particular case, there are a substantial number of

18 very high hurdles to get over in order to arrive at that

19 particular conclusion, not least the involvement of

20 Mr Vernon, against whom no such suggestion or allegation

21 has at any point been made.

22 Now, that takes us to the next event we have looked

23 at -- I don't want to go over it again -- which is the

24 statement to Congress, or the Congressional

25 Sub-committee, more correctly, in September. And just to




1 draw out a point that I didn't mention when we looked at

2 it earlier, when we looked at pivot points, another

3 thing she says in that statement to the subcommittee --

4 and this is, again, at RNI-113-044 -- is to the effect

5 that the behaviour of the RUC as she saw it had worsened

6 "since I began to represent the residents of the

7 Garvaghy Road".

8 There has been a good deal of evidence, of

9 suggestion, as to which, if any, of her high profile

10 cases may have made her more vulnerable, may have

11 brought about changes in attitudes. And people have

12 offered differing views about it. However, this is her

13 view, and in September 1998 she associated the change

14 with her representation of the GRRC.

15 Finally, at the end that of year comes the arrest of

16 C284, and that we deal with in chapter 2.14. You will

17 remember it is after Rosemary Nelson's murder, about

18 a month, that he makes the statement alleging that

19 during a visit to him by Detective Inspector Monteith

20 and a Special Branch officer, allegations were made

21 about the nature of the relationship between

22 Rosemary Nelson and Colin Duffy.

23 Again, I'm not going to go into this in any detail.

24 Can I just highlight a few points, however. The first

25 is that this is the only case that you have considered




1 in which a sexual allegation is made involving

2 Colin Duffy. Remember -- I highlighted this

3 yesterday -- that a number of unpleasant general sexual

4 innuendos were made, if the allegations are correct.

5 But this is the only one that you have examined, where

6 that particular allegation features, although, of

7 course, as we know, it features in a good deal of other

8 material that you have had to consider, and I'll talk

9 about that in the context of Part 2.

10 Secondly, and obviously, C284 was not a client of

11 Rosemary Nelson; he was not in any sense a supporter or

12 lieutenant of Colin Duffy. In fact, you will remember

13 his evidence was that he was antagnostic towards him.

14 He cannot, therefore, you may think, have been part of

15 any wider campaign. And, therefore, in the same way as

16 the McKeown complaint but, as it were, from the opposite

17 side, what he alleges simply does not fit in to the

18 suggestion of any campaign. Nor is it right to say of

19 him, for example, that he waited many years to make the

20 allegations. He didn't. Nor is it right to say of him,

21 for example, that he, having given you a statement,

22 declined to attend to give evidence. He did. And he

23 was questioned on his evidence by me and maintained his

24 account of what he said had been said to him.

25 So the question for you to consider in relation to




1 his evidence is what he could possibly have to gain,

2 either at the time or since, in advancing the particular

3 allegations that he did. If you remember, he had other

4 complaints, but this was the one in which the Inquiry

5 was interested.

6 So, sir, that completes the chronological survey and

7 I hope what I have shown you backs up the submission

8 I made at the outset that it is in fact impossible to

9 apply to the rather more complicated evidential picture

10 that you have, the generalised assertions which are set

11 out in the PSNI's submission.

12 Rosemary Nelson was not actively involved in putting

13 forward any of the other complaints at any point during

14 the period of Colin Duffy's detention. She did indeed

15 make a statement in support of her own complaint at the

16 time of the detention, and then, as an aside, in a few

17 lines, she mentioned in the vaguest terms what turned

18 out to be the LAJI cases, and that is that.

19 What you will have seen, however, is that during

20 this period other events of arguably far greater

21 significance were taking place, and the most obvious of

22 those is what she says happened to her on the

23 Garvaghy Road.

24 Now, sir, so far as other complaints points are

25 concerned, I have already told you that the end of the




1 chapter there are little sections dealing with the

2 political fallout, if I can put it that way, of the

3 ICPC's letter in June 1998. And it is in that part of

4 the chapter that some consideration is given to

5 Geralyn McNally and her experience, and I would just

6 like to say something about that point now, because it

7 is a topic in which you have rightly shown

8 a considerable degree of interest and about which you

9 have had evidence from a number of witnesses.

10 In our written submission, we draw attention to

11 points which would appear to be points in common between

12 her and Rosemary Nelson, most obviously perhaps that

13 they were both working in Northern Ireland at the time,

14 they were female lawyers, they were from a particular

15 part of the community. But, in my submission, it is

16 important to look at what happened to her overall to see

17 whether it casts any light on the other topics in which

18 you have taken a very clear interest.

19 Now, she told you, if you remember, that she had

20 experienced hostility and -- I think she described it as

21 negative behaviour from about June 1997 in the course of

22 her work as a supervising member of the ICPC. However,

23 it was a year after that, with Mr Donnelly's letter to

24 the Chief Constable and the Secretary of State of the

25 19th, you may think, that she really came to the fore.




1 This, of course, came after the personal difficulties

2 she had with P146, but I'm not going to spend any time

3 reminding you about the evidence on those.

4 Focusing on this period from June 1998 then, you

5 will remember that as part of the business of fixing the

6 problem on the basis of her proposal put forward very

7 forcefully by the Chief Constable, there was a meeting

8 between the three of them on 1 July and the proposal, so

9 far as Sir Ronnie was concerned, had the happy result

10 from his point of view of ensuring that the

11 investigations continued and that, therefore, there was

12 no occasion for the issue of any certificate at all,

13 because clearly the threat at that point was for

14 something which was unprecedented, namely a certificate

15 of dissatisfaction or, perhaps more correctly -- I don't

16 know -- the withholding of a certificate of

17 satisfaction.

18 You remember that in her letter agreeing to this --

19 again, we needn't look at it, but it is RNI-202-175, the

20 next day -- she, Geralyn McNally, reiterated that

21 whatever the result of the independent investigation, as

22 it turned out, conducted by Commander Mulvihill, she

23 would still record her original concerns about the P146

24 investigation, and that was something which Mr Donnelly

25 told you was clear in his own mind, and there is




1 a passage quoted of his evidence in our submission at

2 chapter 2, 385.

3 Now, there was, as you will recall, a second meeting

4 between these individuals. She thought it had taken

5 place in mid December 1998. Sir Ronnie thought it had

6 taken place a little earlier in early 1999. At any

7 rate, it seems to have taken place at a stage when

8 Commander Mulvihill had either completed, or largely

9 completed his work, but before it had been formally

10 handed over.

11 There are no notes of this meeting. There were

12 notes -- Miss McNally made notes -- of the July meeting,

13 you remember, and the recollections of the meeting

14 varied. You will remember, for example, that

15 Miss McNally described getting there to discover that

16 a discussion had already taken place between the

17 Chief Constable and Mr Donnelly, and she also recalled,

18 you will remember, that in the meeting an attempt was

19 made to persuade her not to insist on recording her

20 original criticisms, an attempt which she rebuffed.

21 Both Mr Donnelly and Sir Ronnie denied in their

22 evidence attempting to put pressure on her at this

23 meeting or in any way. Mr Donnelly, if you remember,

24 told you that any such attempt would have been futile,

25 although the Chief Constable in his evidence, having




1 said that he had only a vague recollection of the

2 meeting, accepted that he may have raised the question

3 of whether she felt it necessary to raise her original

4 concerns.

5 Now, sir, I'm going to continue with the history of

6 Geralyn McNally in just a moment, but I do want to pause

7 at this point to remind you that it was at this meeting

8 that Geralyn McNally says reference was made by the

9 Chief Constable to the relationship between

10 Rosemary Nelson and Colin Duffy, and in particular his

11 belief that they were having an affair.

12 She stuck to that position in her evidence at

13 Day 49/88/49-90, saying that she hadn't been mistaken,

14 she hadn't, she thought misconstrued other comments and

15 Sir Ronnie, you will remember, suggested that that might

16 indeed have been the case that other comments might have

17 been misconstrued, and we quote the relevant passage of

18 his evidence at chapter 2/396.

19 THE CHAIRMAN: I'm sure it is a fault of my memory, but I

20 had a recollection that there was evidence that the

21 mention of the Colin Duffy affair was at the second

22 meeting.

23 MR PHILLIPS: This is the second meeting, sorry. It is my

24 fault. There were two meetings --

25 THE CHAIRMAN: Yes, it is the second meeting.




1 MR PHILLIPS: Yes, there was a meeting on 1 July.

2 THE CHAIRMAN: And this is a meeting towards the end of the

3 year?

4 MR PHILLIPS: That's right, exactly, sir. Yes, either in

5 the middle of December or --

6 THE CHAIRMAN: I hadn't picked up that you'd moved on to the

7 second meeting.

8 MR PHILLIPS: It is my fault. Either in the middle

9 of December per Geralyn McNally or in the early part of

10 1999.


12 MR PHILLIPS: We are talking about the same meeting.

13 THE CHAIRMAN: Good. We are.

14 MR PHILLIPS: But the important extra point I wanted to

15 remind you of is that Mr Donnelly also talked about this

16 and said, if you remember, that he did not recall any

17 such remark being made, making the point that if it had

18 been, he would have remembered it with, as he put it,

19 "crystal clarity", and that's Day 56/107 to 108.

20 Just putting that to one side and moving on with the

21 experience of Geralyn McNally, of course the next

22 relevant stage is very shortly after the murder when she

23 continued to insist on her comments about the original

24 investigation being recorded as an appendix to the

25 ICPC's statement. And you have now heard evidence about




1 what then followed.

2 There was, on the evidence, you have heard,

3 a briefing against her, including, it seems, comments

4 made at a meeting of the police authority. There was

5 critical -- very critical -- comment in the media, most

6 prominently in the Sunday Times article at RNI-401-373,

7 in which her qualifications, her impartiality, were both

8 called into question, and by more sinister threats,

9 which led Mr Donnelly and, if you remember, the

10 Secretary of State to be concerned about her safety.

11 Now, so far as that is concerned, if you remember,

12 I asked Mr Donnelly bluntly why he hadn't taken this up

13 with the Chief Constable in a meeting that they had

14 together at the end of March 1999, two weeks after

15 Rosemary Nelson's murder and about a week after the

16 release of the ICPC statement. That was Day 57,

17 pages 11 to 14. And what he said, you remember, was

18 that what he took to be going on here was not so much an

19 attempt to get at Geralyn McNally, but rather to protect

20 the RUC; in other words, the motivation in play, as he

21 explained it to you, was to protect the organisation.

22 That's not to say that he in any way in his evidence

23 associated himself with it or approved it, but he did

24 not accept the suggestion that this was a campaign

25 against her; rather, it was, if I can suggest, a rather




1 brutal side effect of a campaign to protect the

2 organisation from what was, of course, as everybody

3 recognised from the previous summer, criticism by the

4 independent body whose job it was to supervise

5 complaints made against the RUC.

6 So, perhaps obviously, the question that arises here

7 is whether what happened to Geralyn McNally sheds any

8 light on what happened to Rosemary Nelson.

9 Now, this episode, happily, was resolved without

10 injury, without death, but it does, you may think, show

11 how dangerous it could be to be spoken against in this

12 particular context at this particular time, which in

13 turn, of course, takes us back to the draft report, to

14 the naming of names, and to Christine Collins' reaction

15 to it. And that was a reaction to relatively brief

16 references in the Cumaraswamy draft report. These

17 comments, of course, made by Geralyn McNally were much

18 more detailed, much more trenchant and received very

19 considerable publicity.

20 So in that sense it comes back, to use the title of

21 that programme you have seen and heard about, made by

22 John Ware, to a question of careless talk.

23 Sir, that's all I wanted to say about complaints.

24 Perhaps this is a good moment to pause before we look at

25 threat assessments.




1 THE CHAIRMAN: Thank you very much. We will break off until

2 a quarter to 12.

3 (11.30 am)

4 (Short break)

5 (11.47 am)

6 THE CHAIRMAN: Yes, Mr Phillips?

7 MR PHILLIPS: Sir, the next matter I want to look at is

8 threat assessments and that's dealt with in chapter 3 of

9 the written submissions. However, as I will show you in

10 a moment, in fact the chapter deals with a good deal

11 more than that, and in particular, in the same way that

12 I have looked at complaints so far in a chronological

13 basis, you will see that this chapter, chapter 3, is

14 structured in a chronological way.

15 If we could look at the index of chapter 3, please,

16 page 1 (displayed). Thank you. You will see that after

17 an introductory chapter, what is then set out includes

18 not just the three moments at which the question of

19 Rosemary Nelson's safety was considered, but also the

20 rather important linking passages -- that's 3.3 and

21 3.6 -- which trace the development of all the various

22 concerns, the issues, the problems that we have looked

23 at during the intervening period, so that you can focus

24 on what the, as it were, accumulated knowledge about all

25 of this was at each point.




1 It is of no value, I would suggest, to approach each

2 of these three considerations in a vacuum. That would

3 be quite wrong. You have to look at what was known,

4 what was available, at each point, and that requires

5 looking at what had built up, if I can put it that way,

6 since the last occasion.

7 Now, I'm not going to look at those topics or

8 sections at all. What I would like to do, however, is

9 to show you two charts, which have been prepared with

10 this particular consideration in mind.

11 The first begins at chapter 3/247 (displayed), and

12 it is a chronology of, as you see, correspondence

13 received by the RUC, starting in March 1997 and

14 continuing to the time of the murder, and in fact after

15 the time of the murder, and it sets out the bundle

16 reference, the origin of the document, the recipient,

17 the date and a brief description of what was covered.

18 Now, you will see from this first page a pretty

19 colour has been given to the second document and, as you

20 will see from the key, that shows you what was going on

21 during the time of assessment. That's a rather modest

22 example. If you look, for instance, at 253,

23 chapter 3/253 (displayed), you will see the entire page

24 is in colour, because it is during this period that what

25 we call the February 1998 assessment is taking place.




1 Of course, as I have already suggested, it is as

2 important, if not more important, to consider what had

3 come in before that and before each successive

4 consideration.

5 The second chart is at 3-261 (displayed) and, again,

6 is in glorious Technicolor. This time there are two

7 colours: the first the threat assessment period colour,

8 which is the one we have on the screen, but the next is,

9 we can see, at 263, for example, and that is intended to

10 mark documents which are passed on from the NIO, this

11 being the NIO's chart, if I can put it that way,

12 correspondence coming in to the NIO, and that colour

13 tells you where things are passed on to the RUC.

14 So I hope those are helpful in considering that

15 question of chronology.

16 Now, in terms of the background to all of this, you

17 will remember that there were two relevant force orders

18 from the RUC side of things, the second coming into

19 force in March 1998, on 20 March. That is dealt with in

20 the first section of the chapter, and that, of course,

21 set out the rules, the rules, as it were, applicable to

22 the standard situation. And what we trace for you in

23 this first section, 3.1, is examples that you have heard

24 in the evidence of occasions when, as it were,

25 a standard threat came in and the rules were followed,




1 and we have been able to show how the orders operated in

2 practice.

3 Now, if we go back to the index once more, the first

4 page, please, you will see there at 3.1.3, the third

5 topic, page 5 of the chapter, deals with, if I can put

6 it this way, the other standard way in which this sort

7 of assessment was undertaken, namely in the context of

8 a KPPS application, where, if you remember, there were

9 two things going on: there is the Special Branch

10 assessment on the one hand, and there is the

11 Security Branch assessment on the other, resulting in

12 what the NIO witnesses described as a threat risk

13 analysis, being the product of both branches, rather

14 than just the Special Branch.

15 That, if you remember, resulted in grades being

16 applied by the Security Branch, not by the

17 Special Branch, by the Security Branch, and we will look

18 at that briefly when we look at the proximity talks and

19 the controversial question of KPPS in that context.

20 I mention them now simply to remind you that these

21 were the standard circumstances in which the force

22 orders and the procedures we have heard about came to be

23 applied.

24 The further introductory point I want to mention to

25 you, because it is a theme of all of the evidence on




1 this topic, is that there was a gap, a gap in

2 understanding between, it seems, NIO officials on the

3 one hand and those who were actually doing the assessing

4 on the other, in Special Branch, as to what was going

5 on. And in our chapter, you see at page 7 and 8 the

6 account which comes from Christine Collins' statement,

7 paragraphs 59 to 62 -- can we have that on the screen,

8 please, chapter 3, page 7 (displayed), thank you -- and

9 continues over the next page, where she explained in her

10 statement the threat risk analysis and the differences

11 between threat and risk, as she understood it, and what

12 went into the process.

13 However, as you see at the bottom of the page, in

14 a sense the pivotal evidence in this part of the case

15 came when B144 from Special Branch gave his evidence to

16 you, evidence of importance, I would suggest, on a range

17 of topics. And on this one, what he said to you in

18 extremely clear evidence, I would suggest, was that

19 this, whatever else it was, was not in fact an

20 assessment at all, or certainly not an assessment as

21 understood by others. He said not just misunderstood by

22 NIO officials -- that wasn't his business or concern --

23 but even by colleagues in the police. It was in fact an

24 intelligence check. It was a check of the records

25 maintained at Headquarters in the E3 Department. You




1 will remember on the dame say you heard the evidence of

2 P226, whose business it was to undertake the check and

3 who had no experience, no skill, in preparing any form

4 of assessment.

5 So, as I say, you have this gap which comes out

6 again and again in the evidence between what, as it

7 were, the customer thought that he or she was getting

8 and what in fact was taking place.

9 Now, so far as this topic is concerned, the final

10 general point I wanted to make is that in this area it

11 is important, in my submission, to be looking across, to

12 be checking to see what was going on, what was known in

13 other parts of the evidence, under other headings.

14 I say that despite the fact that today, partly

15 because of time but also because of certain constraints

16 which are still in place in relation to a limited part

17 of the Special Branch evidence, I'm not going to develop

18 those submissions at any length.

19 However, you may think that this is the obvious

20 moment at which you need to be looking across to see not

21 only what those doing the assessing at the various

22 points were looking at, but to see what else was

23 available and to consider, of course, the question of

24 whether more ought reasonably -- not in a perfect

25 world -- ought reasonably to have been taken into




1 account and considered.

2 Now, before looking at some of the topics covered in

3 the chapter briefly, can I just remind you that these

4 issues have been addressed in considerable detail by the

5 NIO in their submissions, by the family and also, of

6 course, by the PSNI.

7 The first point I want to look at then is

8 the May 1997 consideration, and we have a slightly

9 smartened-up version of the original chart we prepared,

10 at 3.14 (displayed). Thank you.

11 This is all, I hope, very familiar material and so

12 I'm just going to make some short points about the

13 various parts of the diagram and then leave this topic.

14 I can deal with it briefly not least because whatever

15 else was going on in May 1997, there was, on the

16 evidence you have heard, no actual threat assessment

17 at all.

18 Looking at the NIO first, Anne Colville dealt with

19 the Torricelli letter of 15 April, you will remember.

20 She told you it was the only time she received

21 correspondence alleging a death threat against

22 a solicitor and stated that that was the alarming part

23 of it, and agreed indeed that at this point

24 Rosemary Nelson's case had already a high profile. She

25 forwarded it to Command Secretariat on 30 April. That's




1 RNI-101-018.

2 So far as Christine Collins, Head of Police

3 Division, was concerned, she told that you she was aware

4 of the letter and described it as an important letter,

5 which she did not want dealt with, she said, in a:

6 "... bargain basement fashion."

7 And that's Day 60, 97 to 98.

8 They said it was discussed with her boss, with

9 John Steele, at his weekly meeting with senior civil

10 servants. If that was the wish, then the question is

11 whether it did indeed receive anything other than

12 a bargain basement treatment.

13 The response that came back at RNI-101-036,

14 6 June 1997, did not in fact, as you remember, answer in

15 terms the question which had been posed by

16 Anne Colville, namely whether personal protection had

17 been discussed with Rosemary Nelson, and rather focused

18 its attention on the complaints investigation.

19 Now, in describing to you her reaction, Miss Collins

20 said that she thought that by implication it was

21 advising her -- that's the letter -- that there was no

22 threat. She said to me:

23 "I would have answered differently and I would have

24 said, well, what the police were really saying was, you

25 know, there is no evidence that Mrs Nelson was under




1 threat."

2 Day 52, page 131.

3 And Simon Rogers made a similar point to you, when

4 he said on Day 59, page 34:

5 "It was not a case of personal protection, because

6 there was no threat triggering that consideration."

7 Now, in fact, as I said just a little while ago, no

8 consideration was ever given, as far as we can see, to

9 whether there was a threat in this case. The question

10 which you may think arises, therefore, is whether, by

11 reading in the conclusion in the way that I have

12 suggested, the NIO officials were, as it were, placing

13 themselves under a misapprehension.

14 So far as the RUC's part in all of this is

15 concerned, you may think on the evidence that it is

16 clear -- and, indeed, accepted -- that errors were made.

17 And in this case the relevant evidence is that of

18 Mr Maxwell, first of all, at Command Secretariat,

19 because, firstly, you remember nothing was done, as far

20 as one can see at all for a number of weeks until

21 Anne Colville's chasing letter of 22 May, RNI-101-026,

22 when, prompted by that, if you remember, Mr Maxwell,

23 Command Secretariat, forwarded the Torricelli letter not

24 to Special Branch in accordance with the force order,

25 but to G Department, the department then for Complaints




1 and Discipline. That was on 23 May and he frankly

2 accepted in his evidence, you will remember, that this

3 was a mistake on his part -- that is Day 47, page 91

4 to 92 -- because G Department, for reasons which I'm

5 sure are obvious, had no role in the force order

6 procedure that we have looked at. They simply didn't

7 have a relevant part to play.

8 However, you will remember that at this point

9 Mr Magee of G Department effectively did what he could

10 to put the matter back on the right track, and I would

11 like to look at that, please, at RNI-101-030

12 (displayed).

13 He sent two memos. The first, this one, back to

14 Command Secretariat, and what he says first of all is

15 that he had forwarded the report and copies of the

16 following letters to the Subdivisional Commander and,

17 again, that's consistent with what should have been

18 going on in accordance with the force order.

19 Then in 2, he deals with the complaint question and

20 how that should be treated. But he also, if you

21 remember, wrote to the subdivision at Lurgan -- and

22 I would like to look at that next, please, RNI-101-031

23 (displayed) -- on the same day and referred the papers

24 to the Subdivisional Commander, having spoken to his

25 deputy, from whom you heard, Mr McMullen, and informed




1 them what was going on on the complaints side and then

2 importantly said in the last sentence of the memo:

3 "The investigating officer is available to provide

4 any information to enable Special Branch or others to

5 assess the threat."

6 So that was in fact the point; this is what should

7 have been going on. It is, you may, think, what the NIO

8 officials believed would be going on, and Mr Magee, in

9 his dealing with the matter, seems to be very well aware

10 of that and clearly thought that the obvious and next

11 thing to be done was that such an assessment by

12 Special Branch should be undertaken.

13 Now, the position is, on the evidence that you have

14 and the disclosure which has been given to the Inquiry,

15 that no such assessment by Special Branch at this stage

16 was undertaken.

17 What happened so far as Command Secretariat is

18 concerned, you see at RNI-101-036 (displayed), is that

19 P136 wrote back on 6 June -- I have mentioned the date

20 already -- to the NIO, despite the fact that at this

21 point nothing further of relevance had been heard either

22 from the subdivision or, whether directly or indirectly,

23 from Special Branch to deal with the question of the

24 threat assessment and simply proceeded on the basis of

25 what had been explained by complaints and discipline




1 officer, Mr Magee, in relation to the complaints. And,

2 of course, I therefore suggested to Mr Maxwell that this

3 letter was sent prematurely and he accepted that.

4 Day 47, page 98.

5 Now, the final topic I want to mention very briefly

6 is what happened at the subdivisional level and here the

7 relevant evidence was from Mr McMullen, if you remember,

8 and his boss, Mr Donnelly.

9 So far as that is concerned, there was a firm

10 conviction, if I can put it that way, on both those two

11 officers' parts that there should have been such an

12 assessment undertaken, and a relevant passage of

13 Mr McMullen's evidence is at Day 48, page 18.

14 He told you, you remember, that he recalled

15 discussing the matter with Superintendent Magee and with

16 Special Branch and with his commander,

17 Superintendent Donnan.

18 Mr Donnan told you that he didn't see, and was never

19 made aware of, the Magee memorandum or, indeed, of the

20 correspondence which attached to it -- Day 77, page 57

21 to 58 -- and he felt that, as he put it, the Chief

22 Inspector was wrong to say that he had discussed the

23 matter with him. And interestingly, he was so firm in

24 that recollection, he said, because precisely of the

25 unusual nature and the significance of the




1 correspondence, the Torricelli, et cetera,

2 correspondence, which led him to believe that had he

3 seen it he would have remembered it.

4 So far as those two officers are concerned, you will

5 remember that Mr McMullen also featured in the next

6 episode, but he gave evidence to you in relation to his

7 concerns about Rosemary Nelson's media profile and

8 explained that that would have made him concerned that

9 if he had taken any steps to communicate with her, it

10 might have ended up in the press. And he said to you in

11 his evidence that the media reporting involving

12 Rosemary Nelson was all controversial and inflammatory.

13 That's Day 48, page 37.

14 He made it clear pretty clear, you may think, that

15 it was his view that to get involved in that sort of

16 thing was unwise in a volatile area such as Lurgan.

17 Now, interestingly, the impression he gave in his

18 evidence is that if someone else, someone without such a

19 media profile, had been at the centre of the

20 correspondence, he may well have instructed an officer

21 to go and speak to that person. That's Day 48, page 38.

22 The Superintendent said that if -- he said he didn't --

23 if he had known about the material, had seen the

24 correspondence, he would have wanted to receive a threat

25 assessment from Special Branch. However, he explained




1 the reason for that was that in his view there was, as

2 he put it, a Republican campaign which was being run

3 through Rosemary Nelson's office, and there was an

4 exchange with Ms Brown about that, Day 77, on page 71.

5 So, in summary, sir, the response from

6 Command Secretariat to the NIO did not address the

7 concerns which were raised in the correspondence and,

8 indeed, by the NIO. The NIO appear to have read into

9 that response an answer on the issue with which they

10 were concerned. Command Secretariat sent the material

11 to the wrong place, not only wrong in the sense of not

12 in compliance with the force order, but wrong in the

13 sense of achieving anything of any actual value, more

14 importantly, you may think. And when the matter arrived

15 at the local subdivision, there is considerable dispute

16 and confusion in the evidence about who did what, when,

17 who saw what. But what is clear is that no actual

18 assessment by the people qualified to undertake it was

19 ever undertaken.

20 Sir, the next topic I want to address briefly is

21 nothing to do directly with an assessment of

22 Rosemary Nelson's safety or security at all, but it is

23 nonetheless dealt with in this chapter and, I would

24 suggest, for good reason. At 3.4, there is an entire

25 section dealing with the meeting at the end




1 of October 1997 between Sir Ronnie Flanagan, ACC White,

2 P157 in Command Secretariat, Mr Cumaraswamy and his

3 assistant, Mr Parra.

4 Now, before looking at the points which arise there,

5 may I just remind you that between the time we are

6 looking at, May 1997, and the Cumaraswamy meeting,

7 a number of the events that we concentrated on in

8 looking at complaints had taken place. And so in terms

9 of my concern constantly to be reminding you of the

10 chronology, it is important, I would submit, to have

11 them well in mind.

12 Again, all of this material is extremely familiar

13 and a great deal of time in terms of evidence and

14 documentation has been generated about it to deal with

15 what at the start of the hearings appeared to be

16 conflicts of evidence between, as it were, the two

17 sides. And one of the interesting questions that arises

18 is the extent to which time would have been saved and

19 evidence would have proceeded in a rather more focused

20 and clear way had, for example, the briefing note for

21 ACC White been disclosed a little earlier than the day

22 on which he gave his evidence.

23 And the same, it has to be said, is also true of the

24 evidence that Sir Ronnie gave to you in the witness box,

25 but not at any stage prior to that, that at the key




1 moment during the meeting when the controversial

2 comments were made, he had absented himself. None of

3 that evidence and material was known at the time

4 I opened the issues to you, and it is important also to

5 remind you that none of it was known at the time when

6 Mr Parra and Mr Cumaraswamy and Mr Ware and P157 gave

7 their evidence. So in looking back at their accounts

8 and in what they said, that -- as it were, the

9 chronology of this Inquiry -- is itself important.

10 Now, I would like to look at the briefing note

11 first, please, at RNI-838-078 (displayed). We needn't

12 go over again the circumstances in which it came to be

13 written. You will see there was a considerable focus on

14 a BIRW report, and if we go on to the next page, please,

15 RNI-838-079 (displayed), you will see under the heading

16 "Reasons to disallow solicitors access to interview" in

17 anticipation, no doubt, of points likely to be raised at

18 this meeting, the memorable sentence:

19 "Intelligence indicates that there exists a body of

20 solicitors who are unduly sympathetic to

21 paramilitaries."

22 It is, if I may say so, hard to imagine that the RUC

23 witnesses in this Inquiry would have suggested that no

24 such comment had been made at any point by anybody

25 during the course of that meeting had that briefing note




1 been known about, had it been disclosed to the Inquiry.

2 Now, as we have heard, the citations from the BIRW

3 report and in particular the next paragraph, which is,

4 again, an important quotation, is a misquotation, you

5 remember, a gross oversimplification, which distorts the

6 sense of what was said in fact in the BIRW report.

7 Now, so far as the evidence is concerned, given the

8 timing of the disclosure of this note, it is

9 particularly important, you may think, that P157, who

10 gave evidence before it was produced, said that the

11 remarks that he had recorded in his notes -- you

12 remember there were in all three versions, P157, the

13 limited notes of Mr Parra and, as it were, the parasitic

14 notes made by John Ware. He said that those remarks had

15 been made by Mr White and he made it very clear in his

16 evidence that that part of his note at RNI-101-159.111

17 (displayed), which is his transcription, so that we

18 could read it, beginning "Sir Louis BC", if you

19 remember, recorded comments which he believed had been

20 made by Mr White.

21 And you will note also and remember that that note

22 made by him includes exactly the same words "stifle any

23 info" as the parallel notes, if I can put it that way,

24 made by Mr Parra.

25 Now, that evidence came, if you remember, after the




1 evidence of Mr Cumaraswamy, who said, as he had asserted

2 at the time, that:

3 "I still vividly remember Sir Ronnie's uttering

4 those words."

5 That's Day 30, page 36.

6 And Mr Parra, who said:

7 "No question, no doubt about it."

8 Day 30 at page 138.

9 However, you will also remember, I'm sure, that

10 much, much nearer the time, over ten years before,

11 Jane Winter recalled that Mr Parra had said to her that

12 he wasn't sure if it was Sir Ronnie on the one hand, or

13 Mr White, who had made the remarks. And you will also

14 remember a striking feature of the aftermath of the

15 release of the draft report in March 1998 was that

16 letter from Jane Winter in which she advanced the

17 suggestion that the remarks may indeed have been made by

18 Mr White. That is obviously an important letter, given

19 that it was so much nearer the events in question.

20 Now, so far as Mr White's evidence is concerned, he

21 told you in very clear terms that he was aware of

22 intelligence of the kind meeting this description and he

23 said, for example:

24 "Well, intelligence was received, as you will

25 appreciate, from informants that were in the holding




1 centres themselves and had benefited from the visits of

2 solicitors."

3 And I suggested to him:

4 "Yes, and that was what you were aware of when you

5 made the remarks that you did, or that Sir Ronnie was

6 aware of when he made the remarks that he did?

7 "Answer: Yes, I think that's a fair indication,

8 yes."

9 Now, as you may have picked up from the perhaps

10 rather odd way in which I put that question, Mr White's

11 evidence veered somewhat, you will remember, in his

12 account of who had said what and at what point.

13 At some moments, it appeared that he was accepting

14 that a remark from the controversial passage had indeed

15 been made by him, but on others, you will remember, he

16 said that he thought remarks were made either by him or

17 by the Chief Constable. And I am afraid there is no

18 substitute in this regard for looking at the transcript

19 at Day 101 at in particular at 159.

20 Now, so far as the briefing note itself is

21 concerned, unsurprisingly, I asked him whether, having

22 had it prepared for the meeting which was being led by

23 Sir Ronnie, he had shared the briefing note with

24 Sir Ronnie. He, Mr White, said he presumed that he had

25 shared the document with the Chief Constable and agreed




1 with me that it would be odd if he hadn't done so. And

2 that's Day 93 at 99. However, Sir Ronnie, you will

3 remember, denied that he had seen the briefing document,

4 Day 99, page 56, line 12.

5 Sir Ronnie also did not accept another suggestion

6 made by Mr White that the problem in the conversation

7 with Mr Cumaraswamy may have been that the

8 Chief Constable was, as it were, inhibited from

9 revealing any intelligence to that effect, which the RUC

10 possessed; in other words, as it were, the discretion

11 point, which Mr White made in his evidence. As he put

12 it to me:

13 "I mean, but the Chief Constable wasn't in

14 a position to put what intelligence he had on the table

15 in front of Mr Cumaraswamy."

16 Now, Sir Ronnie, you will remember, strongly refuted

17 the suggestion that he would have been aware of

18 intelligence of this kind, and that, if correct, opens

19 up this possibility: that the ACC Crime was, as he

20 explained, aware of intelligence of that kind and,

21 therefore, presumably not startled when he saw the

22 reference to it in his staff officer's briefing note,

23 but the Chief Constable was not.

24 Now, so far as the Chief Constable's evidence is

25 concerned, as I have already indicated, what he said was




1 that if, as he accepted from the notes, appeared to be

2 the case:

3 "... comments of that kind were made, they were

4 certainly not made by me and nor were they made in my

5 presence."

6 If you remember, he explained that he left the

7 meeting to take important telephone calls or an

8 important telephone call, and therefore missed out on

9 the comments when they were uttered.

10 Neither P157 nor ACC White in their evidence to the

11 Inquiry mentioned this, mentioned that the

12 Chief Constable had, as it were, popped in and out of

13 the meeting.

14 When he received the draft report, Sir Ronnie told

15 you that he was shocked to read this part of it -- it is

16 paragraph 21, of course -- and that he viewed it as an

17 absolutely clear mistake. However, he also made it

18 abundantly clear to you in his evidence, you may think,

19 that his interest in dealing with it was an extremely

20 limited and narrow one. He wished it to be corrected in

21 the sense that he, Sir Ronnie, did not say the

22 controversial words. And that led, sir, you will

23 remember, to exchanges concerning whether in the

24 circumstances it wasn't surprising that he hadn't taken

25 steps, either with P157 or with ACC White, to get to the




1 bottom of what on his account had apparently been going

2 on in the meeting in his absence.

3 P157 had said in his evidence that he had discussed

4 the matter at that point with the Chief Constable, and

5 Sir Ronnie disputed that. So far as P157's evidence is

6 concerned, he also told you that to the best of his

7 recollection, he told Sir Ronnie that it was indeed, as

8 he told you, ACC White who made the remarks. And that

9 important evidence is at Day 92, pages 93 to 94.

10 Now, so far as the question of reactions to the

11 draft report are concerned and whether they, for

12 example, shed any light on what actually was said and by

13 whom at the meeting, I would like to return to this

14 letter I mentioned from Jane Winter. That came

15 in March. If you remember, the draft comes out

16 in February.

17 If we look at it together at RNI-101-247

18 (displayed), you will see in the third paragraph she

19 suggests that a senior police officer, possibly

20 ACC Raymond White, made the comment, or at least

21 something very like the comment which is recorded in the

22 draft report.

23 We know also from the file note at 249 -- we needn't

24 look at that -- that Sir Ronnie had asked specifically

25 to see this letter because it is a letter not to him,




1 you will remember, but to the Secretary of State. But

2 in his evidence, Sir Ronnie maintained to you that all

3 he was concerned about was achieving an amendment to the

4 draft so as to remove the suggestion, the incorrect

5 suggestion, that he had made the remarks, that by the

6 time of this letter on 10 March, by the time it reached

7 him, certainly, Mr Cumaraswamy had agreed to make the

8 amendments. You remember, that agreement is evidenced,

9 I think, on 5 March, and therefore, as it were, that

10 Sir Ronnie's interest in the matter had ceased.

11 Now, so far as ACC White is concerned, you will

12 remember there is a further piece of contemporaneous

13 material, which is his commentary, a long and detailed

14 commentary on the report, which, again, is a document

15 which in itself seems to raise various possible and,

16 indeed, conflicting versions of what happened during the

17 meeting. You will remember his comment on paragraph 21.

18 He says:

19 "I have no recall of this view being expressed and

20 neither, so I understand, does the Chief Constable."

21 Suggesting that there had been at least some

22 discussion about it or reference to it. Even if such

23 a view was expressed, which I dispute, it would have

24 been made within the strictures of a discussion held in

25 confidence and should not have been repeated in




1 a document for general publication."

2 So there is, as it were, two lines of defence there.

3 It wasn't said, but if it was, which I deny, it

4 shouldn't have been reported because it was only said in

5 the context of a confidential meeting.

6 This, bear in mind, is not a document intended for

7 external consumption; it is an internal memorandum

8 prepared for the Chief Constable by ACC White.

9 So far as Sir Ronnie is concerned, he said, you will

10 remember, that he thought it was likely that he had

11 asked for the commentary, but didn't believe that he had

12 read the detail of it for himself.

13 What he did tell you in his evidence, although the

14 documentation has not emerged in the PSNI's disclosure,

15 is that he issued a directive, if you remember, to the

16 force concerning the role of a solicitor, and he gave

17 evidence describing what it said to you at Day 99,

18 page 11. And it is ironic -- although "ironic" is

19 perhaps not quite the right word -- that the ACC who was

20 charged, according to Sir Ronnie, with the task of

21 undertaking this education programme, was ACC White.

22 Now, so far as this episode is concerned, plainly

23 all of the various accounts cannot all be right, and it

24 is a matter for you to choose between them and, indeed,

25 to assess and decide how much it matters. For example,




1 is might well be said that whoever was the speaker, the

2 important thing is not so much the identity of the

3 speaker, but the fact that the comments were made and

4 went uncorrected and without, it appears, reproof or

5 rebuke.

6 So far as the business of amending the report is

7 concerned, there was, before the Inquiry and in the

8 evidence, a very considerable amount of to-ing and

9 fro-ing about who had taken up the proposed amendments

10 or corrections, whether there had been a direct

11 intervention by Sir Ronnie personally, and that, if you

12 remember, also featured in the "Careless Talk" programme

13 made by Mr Ware. And he explained to you how he had

14 come to take his own notes of Mr Parra's notes in the

15 course of preparing for that programme.

16 What you have now heard is evidence from

17 Christine Collins, who told you that whereas Sir Ronnie

18 had suggested that he might telephone Mr Cumaraswamy

19 directly himself, she advised him that this was not the

20 way things were done, not in accordance with protocol,

21 and it was she who made contact with the Foreign and

22 Commonwealth Office in order to move the thing along.

23 And you may remember very early in the hearings you

24 heard evidence from Mr Wells, who became involved in

25 that, and then, perhaps to his regret, also became




1 involved in the preparation of the broadcast.

2 Now, it was at that point in her evidence, finally,

3 you remember, that Christine Collins explained her

4 reaction to the report and not, of course, to the

5 passage that was concerning the Chief Constable, but

6 rather to the paragraphs in which names were named. And

7 what she said was that she was concerned about this

8 point, and the word she used, I think, was the

9 "juxtaposition" of Rosemary Nelson's name in

10 paragraph 16 of the draft with the comment attributed to

11 the Chief Constable in paragraph 21, saying that she

12 was:

13 "... acutely concerned that naming solicitors was

14 not a good thing to do. Finucane was in my mind, and

15 that whole saga was still quite fresh in the memory at

16 that time."

17 She said that:

18 "It would have brought Mrs Nelson to the attention

19 of terrorist organisations or reinforced views they

20 already held."

21 That's Day 61 at 28 and 31.

22 She also said:

23 "There was concern that this would increase the

24 risk. It could be very damaging to Mrs Nelson's safety

25 and, you know, in those circumstances I think it would




1 have been right to warn the Special Rapporteur that that

2 was our view."

3 As I said earlier today, that was indeed the basis

4 on which the Rapporteur agreed to make amendments,

5 pointing that out rather crisply, as you remember, in

6 his letter to the Chief Constable in March.

7 Now, sir, that part of this history has already

8 taken us beyond the time of the next threat assessment,

9 and that is, I hope, a very good example of where the

10 issues you are considering all overlap and how vital it

11 is to bear in mind the various different chronologies,

12 because at a meeting on, I think, 21 -- possibly the

13 19th, possibly later -- February -- it doesn't matter --

14 between the NIO officials, Christine Collins,

15 Simon Rogers and the LAJI delegation led from the front

16 by Mr Lynch, the question of Rosemary Nelson's safety

17 was raised.

18 Now, so far as that is concerned, it is dealt with

19 in considerable detail in section 3.5 of this chapter

20 and, again, I just want to highlight some of the points

21 by way of reminder really at this stage.

22 Christine Collins, you remember, gave vivid evidence

23 about the assertive way in which Mr Lynch took over the

24 meeting, and Simon Rogers explained in his statement --

25 paragraph 25 at RNI-841-429 (displayed) -- that the




1 matter had been raised in such forceful terms that:

2 "I felt it incumbent upon me to write to the police

3 letting them know of the LAJI's concerns over

4 Mrs Nelson's safety."

5 With that in mind, he told you, he drafted the

6 letter in a particular way, including various features,

7 which are identified rather helpfully in his evidence,

8 which he thought would serve to underline the importance

9 of the issue: the use of Christine Collins' name and the

10 specific suggestion, for example, at the end of the

11 letter that it might be prudent to consider whether or

12 not she needs to be approached and given advice on her

13 security. And what he was trying to do, as he

14 explained, was this, he said in answer to a question on

15 Day 59/62:

16 "I anticipated that they would treat it seriously,

17 but I was putting every fastening belt, piece of string

18 on it that I could to make sure that every alarm bell,

19 whenever they received it, rang."

20 Now, again, the question that arises in a very

21 simple way here is whether what Mr Rogers sought to

22 achieve was in any way matched by what actually

23 happened. So far as the RUC's part of this is

24 concerned, again, the relevant officer is P136. She

25 received the letter and then forwarded it on to the ACC




1 of South Region, asking for his views and comments and

2 reminding him, you may remember, that the matter of

3 death threats had been referred to Lurgan in May of the

4 previous year. So the ACC was not left to draw the

5 connection for himself. P136 drew it for him.

6 What then happened was that the matter was sent down

7 the chain of command, if I can put it that way, within

8 the South Region. And we can see the chart at

9 chapter 3, page 108 (displayed). I hope that's clear

10 enough. You see the ACC, Mr Craig, third box down, and

11 it goes down from him into J Division and then to Lurgan

12 and to the Special Branch there.

13 Now, the key document so far as what happened to

14 this request and how it was treated, is, I would

15 suggest, at RNI-101-200. If we could have that, please

16 (displayed)? It is dated 3 March 1998 and it comes from

17 Mr McMullen who, as I said, also features in this. It

18 is dated 3 March, asks for a report by the 6th and he is

19 very short and simply says:

20 "Please let me have your views and comments on any

21 threat there may be against Miss Rosemary Nelson."

22 Now, as you will see from the face of this document,

23 it doesn't attach or refer to any correspondence.

24 Rather, it converts, you may think, the context of the

25 request, as provided by Simon Rogers and passed on by




1 P136, into something rather different, which is

2 Mr McMullen's own request for views and comments on any

3 threat there may be against Rosemary Nelson.

4 And the recipient of this, B123, confirmed that he

5 would not have received any correspondence other than

6 this short request or memo from Chief Inspector

7 McMullen. And in this way, therefore, the thrust of the

8 Lawyers Alliance's concern as expressed in their

9 original meeting, which Mr Rogers sought to pass on with

10 all the signs, the fastening belts, et cetera, to

11 Command Secretariat, was not in fact communicated to the

12 individual who was charged with undertaking the

13 assessment. In other words, the suggestion that police

14 officers were issuing threats to Rosemary Nelson via her

15 clients at the holding centres was not, in the

16 assessment that followed, considered.

17 Now, so far as that is concerned, the assessment,

18 I mean, it is at RNI-101-211 (displayed). It was

19 explained by the officer that he went about it in the

20 usual way. There were no steps taken to lift it out of

21 the absolutely standard. It was not a gold star

22 service, and the question arises in this case, as in the

23 others, as to whether it in any way met the expectation

24 of the customer, the NIO, or what the relevant officials

25 in Police Division believed would be with going on at




1 this point.

2 And the other thing to mention here -- because, of

3 course, unlike in the May case, this was a threat

4 assessment -- is that in this case, as in August, what

5 you did not have, as you would have done under the KPPS

6 system, the system dealt with by other officials in the

7 Police Division, was the parallel assessment done by the

8 Security Branch, producing at the end of it not a threat

9 assessment but, to use Christine Collins' expression

10 "a threat risk analysis" in which, as you remember on

11 the evidence from Superintendent McAuley in

12 Security Branch, the Security Branch had a real and

13 active role. They did not simply accept the

14 Special Branch's views; they had their own expertise,

15 they had their own skills and experience and they used

16 them to produce this composite assessment in the KPPS

17 system.

18 Now, it was, of course, Mr McMullen who received

19 this, and he explained in his evidence to you on Day 48

20 at pages 78 and 79 how he believed that

21 Rosemary Nelson's behaviour, her actions and the manner

22 in which she was pursuing her allegations were

23 dangerous. And I mentioned that evidence to you

24 already. And he was very frank, you may think, in the

25 way in which he gave evidence to you about how he




1 regarded Rosemary Nelson, and that had a particular

2 impact, you will remember, when it came to the question

3 of what actually happened on the ground to deal with

4 concerns about her safety. I will come back to that in

5 a moment.

6 But his response to the assessment and the next

7 stage in the process, going back up to the

8 Command Secretariat, is RNI-101-208 (displayed), where

9 in the second paragraph he comes to the nub of the

10 matter:

11 "The police at Lurgan do not have details of any

12 threat there may be against Rosemary Nelson, nor do they

13 know the nature of or reasons for the deep concerns the

14 US Lawyers Alliance have about her safety."

15 However, you see at the penultimate paragraph

16 a reference there to appendix B, and we have looked at

17 that on a number of occasions together. If we could

18 have it on the screen, please, RNI-101-213 (displayed),

19 what it is, who wrote it, what happened to it, all of

20 those questions are in a state of some confusion, you

21 may think, after all the evidence that you have heard.

22 Now, in his evidence, Mr McMullen was not able to

23 assist you as to who may have written it. He speculated

24 that it might have been somebody in Special Branch. His

25 then boss, Superintendent Chapman, perhaps came closest




1 to shedding light on it by saying at page 65 and 66 on

2 Day 63, that:

3 "It would most likely to have been glued into the

4 subdivision's briefing book."

5 That was a book kept by the duty inspector and used

6 by him or the duty sergeant to brief the local police

7 officers before they went out on patrol.

8 Now, this has led, as you know, to correspondence

9 with the PSNI about disclosure, and in April last year

10 the PSNI informed the Inquiry that the relevant briefing

11 book for the period 9 May 1997 to 23 April 1999 has been

12 lost and its whereabouts are not now known.

13 You will remember also that Appendix B was notable

14 for getting Rosemary Nelson's address wrong; thus, of

15 course, ensuring that if officers were indeed briefed to

16 pay attention to the address, they would have been

17 paying attention to the wrong address.

18 As to who wrote it, Mr McMullen denied that he was

19 the author and suggested it might have been written by

20 Special Branch, as I have said. But certainly B123

21 denied authorship of it and Mr Chapman had no

22 recollection of Special Branch preparing it and said

23 that his assumption would be that Mr McMullen or

24 possibly the CIO might have been the author. So some

25 distance has been put by the witnesses in general




1 between themselves and the authorship of this particular

2 document.

3 Now, so far as Mr McMullen's evidence is concerned,

4 may I mention one further aspect of it? Because in all

5 of this threat assessments evidence, we have considered

6 not only what was done in the Rosemary Nelson case but,

7 as it were, parallels, other examples, of similar work

8 going on at about the same time. And there are very

9 obvious examples in the August 1998 setting which we

10 will come to.

11 But in this context of Mr McMullen and his evidence,

12 do you remember there was consideration given of what

13 happened when a threat was received in relation to

14 somebody we have referred to in our files as "the

15 councillor". And in the bundle at RNI-831-171

16 (displayed), it is obvious that steps were taken

17 immediately when a threat had been received at

18 Rosemary Nelson's offices after her murder, and there

19 the inspector sets out what had happened: that the

20 councillor had been visited immediately, an arrangement

21 had been made for the crime prevention officer to

22 attend, Mr McMullen had forwarded the information to

23 Security Branch in order for a security survey to be

24 considered, all of which was in accordance with what was

25 then the applicable force order, the one that came out




1 in 1998, number 21 of 98.

2 I asked Mr McMullen in the light of that, you will

3 remember, what the differences were, and he said this at

4 Day 48/114 to 115:

5 "Well, the difference is absolutely clear. We had

6 something concrete here. The councillor was

7 cooperative. I don't know what the conversation was

8 between the crime prevention officer and the inspector

9 with the councillor, but it seems that as a result they

10 were of the view that perhaps we can do more. Hence the

11 reason for seeking further advice to see what more we

12 could do.

13 "And that is the one that I think I'm referring to

14 in my statement, because I remember having

15 a conversation with that individual, and the

16 conversation went something like, 'Oh, I had your people

17 round with me today' and the individual was completely

18 open with me and discussed it and I got a view of how

19 the individual was concerned about it. So it was

20 a completely open, two-way conversation."

21 And in his evidence, you remember, he drew

22 a distinction between that sort of experience, that sort

23 of conduct, and what he saw to be Rosemary Nelson's

24 approach, where she didn't come and talk about matters,

25 she wasn't open to this sort of discussion, she wasn't,




1 in that sense, cooperative.

2 Sir, would that be a convenient moment?

3 THE CHAIRMAN: Certainly. 2 o'clock.

4 (1.02 pm)

5 (The short adjournment)

6 (2.04 pm)

7 THE CHAIRMAN: Yes, Mr Phillips?

8 MR PHILLIPS: Sir, we had got to the final stages of

9 the February 1998 threat assessment and I want to look

10 briefly at the stage when the matter goes back to

11 Command Secretariat. And the evidence of relevance

12 here, you will remember, is that of P136, who told you

13 that she took steps to ensure that P157, in discussing

14 this matter with the Chief Constable, should also deal

15 with the question of whether an officer should be sent

16 round to see or to visit Rosemary Nelson in order to

17 offer her security advice. And you remember the Post-It

18 on one of the copies of the document we have in the

19 bundle, which, when interpreted by P157, read:

20 "Need to offer her a crime prevention officer?"

21 And at the bottom of the same page -- and for

22 everybody's note it's RNI-101-207 -- here we have

23 a short sentence in P136's handwriting showing that

24 after that discussion between the Chief Constable and

25 P157, the conclusion was:




1 "Nothing further can be done by police at this

2 time."

3 Now, in her evidence, P136 accepted that she was

4 aware, as you would expect, of the specific point raised

5 by the NIO in Mr Rogers' letter and, therefore, of

6 course, that as things stood, she didn't have an answer,

7 or certainly not the answer that they perhaps were

8 hoping for or expecting.

9 So far as Sir Ronnie's involvement in this is

10 concerned -- and lest there be any doubt about this

11 whatsoever -- he did indeed confirm in his evidence that

12 this was the only occasion that he could recall becoming

13 involved in discussing the outcome of a specific threat

14 assessment. And P157 gave the context of this in his

15 evidence. He said:

16 "We needed his imprimatur on it, as it were, as to

17 where we would go from here."

18 Day 93, page 1. And as he further explained, this

19 was because P157 viewed the latest decision as:

20 "This was another part of the sequence, if you like,

21 and he was already aware and au fait with the previous

22 parts of the sequence and, therefore, it is logical that

23 he should be brought in for this."

24 Now, so far as Sir Ronnie is concerned, he told you

25 that he had no specific recollection of the discussion,




1 and at Day 99/148 he said:

2 "I have certainly no recollection. You said, and he

3 may have said, that he would, he thinks, have left the

4 file ..."

5 The file on this matter, the Command Secretariat

6 file, obviously:

7 "... for perusal. I certainly have no recollection

8 of the file being presented to me and that is not the

9 normal course of events. It would rather more as

10 a discussion which is indicated in this, discussed with

11 CC."

12 And the conclusion, therefore, on this part of the

13 evidence is that he, Sir Ronnie, could not recall the

14 discussion or the circumstances which led to that

15 record:

16 "Nothing further can be done by police at this

17 time."

18 He gave the view to you that what appeared to have

19 been done from Appendix B, namely to pay attention to

20 Rosemary Nelson's addresses, was, as he put it, an

21 "appropriate outcome".

22 That was the immediate background to the letter

23 which went back from P136 to the NIO, and that's the

24 final stage I want to look at very briefly: what was the

25 reaction. And the evidence that you heard was rather




1 mixed on that. Simon Rogers said:

2 "I would have naturally preferred a fuller reply

3 from the police service, but I felt the reply, brief

4 though it was, addressed the central point, which was on

5 the threat."

6 And he went on in his evidence -- and this is

7 Day 59/117 -- to say:

8 "I wouldn't have written the letter ..."

9 The letter of February obviously:

10 "... I had if I was expecting such a brief response,

11 but nonetheless I felt, looking at the response that

12 I received, that that was the police word on the topic."

13 So he didn't exactly, you may, think give it a warm

14 and ringing endorsement, but he didn't think that there

15 was anything more to be done.

16 Now, Christine Collins, however, told you that she

17 did indeed take up the matter in order to, as she put

18 it, probe the response which had been received. And

19 that's the evidence that she gave, for instance, on

20 Day 61, page 14.

21 She said she wanted to check that there was

22 something lying behind it and that it hadn't been

23 a bargain basement, "Oh, this is another of those

24 letters from the NIO, stick on our standard line to

25 take"-type response. And you will remember the




1 campaigns about this.

2 There is no record of any conversation, no notes

3 made by her or, indeed, anybody else of what had

4 happened in the course of the probing that she did. So

5 far as we are concerned today, perhaps the interesting

6 aspect is this phrase she used, by way of explanation

7 for the telephone call, which is to check that it hadn't

8 been a "bargain basement standard line to take-type

9 response".

10 Now, clearly one of the questions that you will have

11 to consider is whether the NIO at their end did what was

12 reasonable in the circumstances to question, to probe --

13 whichever verb you want to use -- even to challenge what

14 was said to them by the police, not least given the

15 obvious discrepancy between the ambit of the questions

16 posed and the ambit of the answer given. And in doing

17 that, you will remember no doubt the points stressed to

18 you by the NIO in their submissions, and in particular

19 on the limits as between the civil servants on the one

20 hand and the police and their operational independence

21 on the other.

22 Another question which arises, of course, is

23 whether, on the facts of the assessment, this was in

24 truth anything other than a bargain basement exercise

25 undertaken for whatever reason as a result of all of the




1 features of the chain that I have explained to you; in

2 other words, whether Christine Collins in truth was

3 provided with anything other than exactly what she told

4 you, that she did not want from the RUC.

5 Now, turning to the final assessment, again, I would

6 remind you of the importance of thinking about and

7 considering what happened between the two assessments;

8 in other words, between the February and August 1998.

9 And the most obvious thing, you may think, is the whole

10 ICPC Mulvihill saga that we looked at very briefly this

11 morning.

12 But in addition and not to be forgotten, of course

13 at the beginning of July 1998, as at the beginning

14 of July 1997, Rosemary Nelson was again prominent,

15 again, very closely involved in the continuing dispute,

16 the continuing potential for very serious public order

17 difficulties on the Garvaghy Road. And, if anything, on

18 the evidence you have heard, you may think that it was

19 in this year, when the parade protest took place

20 immediately after the Good Friday Agreement, immediately

21 after the positive referendum vote, that in a sense the

22 stakes in relation to Drumcree were even higher than

23 they had been in earlier years.

24 So, sir, with that background, can I turn then to

25 make some points about the August assessment? The issue




1 that, in my submission, is raised by this concerns, as

2 it were, the structural problems which were at the heart

3 of the system which was in operation, which, as this

4 exercise demonstrated, ensured that the NIO were never

5 in fact going to get back what they believed they were

6 going to get out of the threat assessment process as it

7 actually operated on the ground.

8 Now, this is a much, much more complicated history,

9 as you remember, with the two documents and, indeed,

10 with the two chains of command being involved. And we

11 have another of the diagrams in chapter 3 at page,

12 I think, 164 (displayed). Again, it is all very

13 familiar, I appreciate that.

14 What I would like to do in my submissions this

15 afternoon is to focus on the way in which the assessment

16 of the pamphlet took place. You have now received very

17 substantial submissions indeed, particularly from the

18 NIO, about the very complicated history of what happened

19 or didn't happen to the threat note, and that is

20 a matter which has been investigated again and again and

21 again by Superintendent Short, by the Ombudsman, during

22 the course of the judicial review, which succeeded the

23 investigation, interrupted the investigation by the

24 Ombudsman, as well as in the evidence that you have

25 heard.




1 But in fact, in relation to the assessment, it is,

2 of course, irrelevant because at no point did it form

3 part of what was actually going on. It may, therefore,

4 be something you want to consider when you are asking

5 yourselves the question, "What else should have been

6 taken into account, what would have been a full and

7 proper survey of relevant information as at this point?"

8 But in terms of particularly the RUC officers who were

9 trying to assess the matter, in terms of what they were

10 doing and how they did, as it were, none of them were

11 provided with the letter and it formed no part of their

12 consideration.

13 So, sir, so far as the pamphlet is concerned, you

14 will remember -- and I'm going to keep this on the

15 screen in order to speed up the process -- you will

16 remember that it was sent by the British side of the

17 Secretariat to Mr Rogers, and then forwarded by him on

18 6 August to Command Secretariat. And you will remember

19 in his letter, RNI-101-327, he talks about the letter.

20 He explains that Rosemary Nelson, he understood, is

21 extremely distressed by it and asked that steps be taken

22 to investigate the background to the leaflet and any

23 increased threat to the individuals, plural, mentioned

24 in it, and made a specific plea in relation to

25 Rosemary Nelson:




1 "In doing so, and while we could not pre-judge the

2 outcome, Ms Nelson in particular could be informed that

3 if she needs financial assistance with any required

4 security measures, then the NIO does run a limited

5 scheme and she can apply to this. Obviously any

6 application would be treated on its merits."

7 And it was then dispatched, as you will see, by P136

8 in the middle of the chart, in two directions, and the

9 memo that she sent to both of the

10 Assistant Chief Constables said:

11 "The NIO informed me ... Mrs Nelson is extremely

12 distressed by the leaflet ... seriously concerned about

13 the threat to her personal security posed by the claims

14 in the leaflet and by the circulation of her address and

15 telephone number."

16 Which is a direct quotation from Mr Rogers. And

17 then these words:

18 "I would appreciate whatever information you can

19 provide on this matter and an assessment of whether or

20 not you consider those named to be the subject of any

21 threat."

22 Well, obviously the first point to, as it were,

23 clear away and put on one side is the assessment of the

24 other individuals named. There is no evidence that that

25 ever happened. There is no evidence that any




1 consideration whatsoever was given to their position, as

2 opposed to Rosemary Nelson's.

3 In her evidence to you, P136 indicated that she

4 herself at the moment of sending this down to the two

5 Chief Constables, did not know, was not familiar with

6 the sorts of processes that Special Branch would go

7 through in order to produce what she was asking for,

8 namely an assessment. And if follows from that, of

9 course, that she would not have known what B144 knew and

10 told you, namely that what actually happened was that

11 there was an intelligence check, because one of the

12 points that emerged in the evidence, which you will

13 recall, is that the way the system operated was that if

14 there was any urgency, matters would already have been

15 taken forward. The potential victim would have been

16 warned and the whole system would have begun, gone

17 through and probably ended before this rather stately

18 exchange of correspondence and memoranda down and then

19 up the chain would have had any chance to take place

20 whatsoever.

21 So by definition, what you are looking for here is

22 a historical record of something which almost by

23 definition is not immediate. The question really is

24 whether there was any actual prospect of finding what --

25 the terms used came to be "the specific threat", because




1 by definition you are looking at something which had

2 that degree of particularity, but is not sufficient to

3 generate the immediate reaction under the force order

4 and is just sitting conveniently in a Special Branch

5 office, whether in Headquarters or in the regions.

6 So there is, underlying all of this area of the

7 case, the question of whether actually this exercise was

8 ever going to yield what Command Secretariat and, even

9 more obviously, the NIO thought it might.

10 Now, so far as what happened to it is concerned, if

11 we can start at the very bottom on the left, here the

12 sergeant in the registry or in E3C, did what he always

13 did and he told you very clearly that there was nothing

14 to distinguish his actions in this case from his actions

15 in all the other cases that he had had to process by way

16 of intelligence check over the years. And those checks,

17 of course, were in response to requests from

18 Security Branch in the context of the double process

19 that I mentioned earlier, the KPPS process, where, on

20 top of the Special Branch exercise, the Security Branch

21 would conduct their own exercise, thus resulting in the

22 threat risk analysis.

23 Here, of course, the origin of the request was in

24 fact completely different; it was not a request made by

25 the KPPS part of the Police Division, it came in this




1 unusual way via the NIO Police Division, prompted by the

2 Anglo-Irish Secretariat, to Command Secretariat. But it

3 received exactly the same response. That was to

4 undertake the check that both he and his boss, B144,

5 said they used to do. And I quote B144 on Day 64:

6 "We did not produce detailed threat assessments.

7 The term was used, but that's not the business we

8 were in."

9 And he also said:

10 "In an ideal world, in a perfect world, if somebody

11 was doing a threat assessment on Mrs Nelson, they would,

12 of course, have access to every single piece of

13 intelligence there was, and not only intelligence but

14 open source material. So if it were the likes of

15 Security Branch perhaps who had been perhaps requested

16 to protect her home or something like that, they would

17 have looked at all of the open source material that they

18 can gather and then they would have asked Special Branch

19 for anything they had in secret or sensitive sources.

20 But I can't think of any one person who would be tasked

21 with writing a genuine threat assessment who would have

22 had access to all of the intelligence."

23 And it is with that sort of evidence in mind that

24 I made the opening submission, which is that this

25 episode, and in particular this particular officer's




1 evidence, in a sense goes to the structural question:

2 what were the systems and was there any prospect, given

3 the way this request entered the system, that anything

4 other than a bare check would ever be done?

5 So that was his evidence. Slightly further up the

6 chain was the Detective Chief Superintendent who, as you

7 remember, was one of these officers who perhaps,

8 I think, confusingly had two ciphers. And it sounds odd

9 to say this, but you may be more familiar with him as

10 B597.

11 He told you in his evidence on Day 79, page 74, that

12 the term "threat assessment" more accurately described

13 the steps that would usually be taken by

14 Security Branch. I asked:

15 "Now, was there any mechanism that you were aware of

16 within Special Branch at this time for a real threat

17 assessment to be undertaken in a case such as this?

18 "Answer: In relation to -- no, I suppose the threat

19 assessment was probably more accurately dealt with

20 within D Department. We simply done the search. We had

21 seen whether there was any additional intelligence that

22 showed there was a specific threat and that intelligence

23 then would have been sent off to D Department for their

24 action."

25 And you can see, therefore, in the context of the




1 KPPS system how this might work. Ironically, therefore,

2 this officer, a Special Branch officer, in the area of

3 threats is portraying Security Branch as, as it were,

4 the real men for the job, who would seek specific and

5 limited information as part of their wider work from

6 Special Branch.

7 Now, so far as that is concerned and what the

8 results were, that meant, for example, that the views of

9 an officer such as 242/597 about Rosemary Nelson's

10 position, formed no part whatever in the assessment that

11 took place. For he accepted, you remember, that she was

12 at greater risk than any ordinary solicitor or, indeed,

13 citizen, if I can put it that way. And he expressed it

14 in this memorable way, as she would have been on a par

15 with:

16 "... any other individual who was involved in

17 terrorist activity."

18 And the passage of the evidence on Day 79, page 75

19 was my question:

20 "Insofar as Loyalist terrorist organisations were

21 concerned, therefore, that would put her at a pretty

22 considerable degree of risk?

23 "Answer: No more than any other individual who was

24 involved in terrorist activity.

25 "Question: But in a very different position to any




1 other solicitor, for example?

2 "Answer: Oh, yes. But no more different than, you

3 know, an individual who was involved in terrorist

4 activity to a normal person who wasn't involved in

5 terrorist activity."

6 Now, this, you may think, underlines the flaws in

7 this particular system, because those views were not, as

8 it were, added to the mix as the report went up, across

9 242's desk and up to his superior, the Head of

10 Special Branch. All that went up was in effect what had

11 been generated by 226 at the bottom, and that consisted

12 of the standard check.

13 So far as the other side is concerned, that's the

14 Portadown office, the relevant officer is B141 and he

15 confirmed -- and it is Day 120/51 and 52 -- that the

16 term "threat assessment" was a misnomer and it was

17 really an intelligence check.

18 He, if you remember, was asked questions relating to

19 his other knowledge based on intelligence reporting and

20 whether it wasn't a flaw in his assessment that he

21 hadn't referred to those, for instance, the reporting

22 suggesting she was gathering information for PIRA or

23 relating to her connection with the Garvaghy Road

24 Residents Coalition. And he offered this evidence in

25 relation to the impact of that information:




1 "I think that her connection with the GRRC would

2 certainly have raised her profile, particularly in the

3 eyes of local militant Loyalists. It would have raised

4 her -- there was no specific threat from Loyalists to

5 say that they intended to murder Rosemary Nelson.

6 However, she would have reached a level which many

7 people were at, that included police officers,

8 contractors engaged in police stations, local

9 politicians of whatever hue, retailers."

10 The question was put to him:

11 "You have referred to some different types of people

12 there, but surely --

13 "Answer: Yes, it would are raised her profile from

14 just a normal person unknown, to somebody who was in the

15 public eye and there would have been a general measure

16 of threat towards her."

17 Now, it has to be said that the assessment which was

18 produced by B141 doesn't contain any flavour of that

19 sort of analysis, and I don't say that by way of

20 criticism because of the system. What he was required

21 to do, as B144 has told you, was not to address the

22 specific carefully-weighted sentences of Mr Rogers or to

23 deal with the very particular concerns which may have

24 been in the mind of the Police Division officials, but

25 rather to do what he always did, namely to produce an




1 intelligence check. And that is what he did.

2 Now, so far as this assessment is concerned, you

3 will remember, sir, that there was consideration in the

4 evidence, which I'm not going to go into, of the other

5 assessments taking place at the same time or at about

6 the same time in relation to the two councillors. And

7 B144, again, was asked about the apparently obvious

8 inconsistencies between the conclusions reached in those

9 cases which were assessments which also crossed his

10 desk, albeit in the other context of KPPS. He, if you

11 remember -- I'm not going to read it out -- accepted the

12 lack of consistency. Day 64, page 113, between lines 2

13 and 18.

14 Moving on to Command Secretariat, because, of

15 course, as we see from the chart, everything comes back

16 there and the evidence about the next stage is also very

17 familiar, I know. Essentially a draft was produced,

18 again, by P136 and she said in her statement that she

19 gave it to P157:

20 "... with the expectation that he would make the

21 Chief Constable aware of the content, given, as I was

22 aware, that the Chief Constable had a personal interest

23 in the matter."

24 You will remember that there was then a delay of

25 about a week, and it appears, seven or eight days --




1 I think it was possibly eight days later -- that there

2 was an annotation in one with of the documents, "CC

3 okay", and at that point, but not before, the letter

4 bearing, I think, the original date goes out.

5 Sir Ronnie said he couldn't recall the specifics of

6 discussion with P157 about that threat assessment. He

7 suggested that the delay might have been because he was

8 out of the office. Now, in considering this part of the

9 evidence you should, in my submission, remember what

10 P136 has told you about it, namely that he, the

11 Chief Constable, had a personal interest in the matter.

12 And P157 said to me in relation to this period:

13 "Yes, or he may have read the stuff as well. That

14 was always a possibility. In fact, if memory serves me

15 right, I think there was a considerable delay in that

16 happening in this case, and it may be that the file was

17 actually left with him. That's a possibility."

18 Now, in relation to what the NIO officials presumed

19 was going on at the RUC end, the evidence of interest

20 here is that of David Watkins, who told you, if you

21 remember, on Day 78, that he wouldn't have been

22 surprised if Sir Ronnie had personally signed off on the

23 assessment and that that, that fact, if it be a fact,

24 would have reassured him and the NIO. And the passage

25 of his evidence went as follows:




1 "I would be surprised in retrospect if

2 Sir Ronnie Flanagan himself had not, as it were, signed

3 off on that, but I don't know that. I say that because

4 Rosemary Nelson was clearly such an important person in

5 terms of her perception in the Nationalist community,

6 point A. Point B: Ronnie was very aware at all points

7 of the damage that could be done to Nationalist

8 confidence in policing, which was always very qualified,

9 to put it no higher than that. But he would have been

10 extremely aware of the damage to the reputation to the

11 RUC had Rosemary Nelson been killed, as, of course,

12 happened. His reputation, and more so the RUC's, was

13 very severely damaged. So let me say it wouldn't

14 surprise me at all if Ronnie had himself signed off on

15 that. If that was the case, that sort of thinking was

16 the sort of assurance that I would have drawn from my

17 knowledge of the process."

18 He, if you remember, at this point had just taken

19 over from John Steele, that very senior position in the

20 NIO.

21 THE CHAIRMAN: (inaudible) previous month, but had that

22 discussion with Ronnie Flanagan or comment was made.

23 MR PHILLIPS: Indeed, yes.

24 THE CHAIRMAN: How do you dovetail what I will circumspectly

25 call the Deeny Drive matter, which was running




1 contemporaneously with this?

2 MR PHILLIPS: Yes. Well, that's something that, as

3 I perhaps too subtly hinted earlier, one has to be

4 slightly careful about in the context of this hearing.

5 It is something I'm going to deal with in a little

6 more detail when we look at Part 2, but it is absolutely

7 right to say that at exactly the same time, not only did

8 you have the other KPPS assessments, but also the

9 application, if I can put it that way, the intelligence

10 activity in relation to Rosemary Nelson,

11 Operation Indus, which went up to the Secretary of

12 State, which involved at some point, we know, the

13 Chief Constable, as indeed the senior officer of the

14 Security Service then in Northern Ireland.

15 That is, of course, one of the questions: how far

16 can you go in reading across, bearing in mind that the

17 individual officers on the ground, if I can put it that

18 way, may well not have had any part in that application,

19 the particular individuals on our chart here, and in

20 order to do legitimate reading across, that is the sort

21 of issue that one has to be very well aware of.

22 THE CHAIRMAN: It may or may not?

23 MR PHILLIPS: Indeed.


25 MR PHILLIPS: Now, so far as the evidence goes, therefore,




1 because of Sir Ronnie's lack of detailed recollection,

2 you do not have in the evidence a picture of the

3 careful, detailed consideration at the highest levels of

4 the RUC which Mr Watkins seemed to have assumed, to have

5 hoped, there might have been. And, of course, the

6 bottom line in all of this is that the

7 Command Secretariat response offered very little, you

8 may think, by way of answer to the concerns which had

9 been underlined by the way in which Simon Rogers had

10 drafted his original letter.

11 Now, so far as the NIO and their attitude is

12 concerned, by contrast from the way in which that was

13 dealt with, one can see that it was not being treated at

14 a low level, it was not being treated in a great hurry,

15 that has to be also said, but when you think of the

16 draft which was prepared and eventually sent by

17 Mr Ingram's private secretary in the latter part

18 of September, the copyee list included Mr Watkins,

19 Mr Leach, as well as the new Head of the Police

20 Division, Mr Lindsay. And if one can glean anything

21 from that, it shows that certainly at this stage there

22 was a full appreciation of the appropriate level, if I

23 can put it that way, for such an answer.

24 Now, of course, by this stage what we are talking

25 about is an answer to Mr Mageean, and my decision to




1 leave the threat letter on one side has meant that he

2 has made a very late appearance in the chronology, but

3 that was in fact the response that went back to him.

4 And it was, of course, in that that the comment in

5 relation to KPPS was made and you will remember the

6 evidence on that.

7 What was absent, I would submit, from the NIO

8 officials' understanding, as revealed in their evidence,

9 was the realisation that what Mr Watkins,

10 Christine Collins and others thought they were getting

11 in terms of the work that had gone in to produce the

12 answer was wrong. They must have thought that although

13 the end product tended to be exceptionally short, a line

14 or two, and very terse, that it was, as it were, the

15 equivalent of an iceberg in terms of police work. And

16 at no stage in this final episode was there any

17 realisation, it seems, of the reality of what was

18 actually going on on the ground.

19 DAME VALERIE STRACHAN: They thought it was a sophisticated

20 system, I seem to remember --

21 MR PHILLIPS: Absolutely, yes. And I'm just about to quote

22 the relevant evidence. For example, Mr Lindsay said:

23 "I think I would probably have been less clear ..."

24 At that point we were talking about what the system

25 was and what he knew about it:




1 "... I mean, I knew that, for instance, the

2 assessment was put together in Security Branch and

3 relied on information from Special Branch Headquarters

4 and local Special Branch as well, and that would have

5 probably been the extent of my knowledge."

6 That was Day 81, page 82, I think. I'm not quite

7 sure about that reference. But Nick Perry's evidence

8 was:

9 "My understanding is that these would have come from

10 Security Branch to Command Secretariat."

11 Adam Ingram it was, the minister, who said I think

12 on a number of occasions in fact in his evidence that

13 the RUC had a system that was very sophisticated for

14 dealing with the assessment of a threat:

15 "I would have assumed ..."

16 He said:

17 "... and given what I said earlier that the way in

18 which those responsible for carrying out that assessment

19 would have conducted their business would have been

20 taking all the relevant factors into account. So my

21 answer to that would have been yes, but I have no proof

22 that that was being done."

23 So, again, I asked him:

24 "Getting back to the assumptions and the reliance

25 that we talked about earlier, it was your understanding




1 then that an across-the-board assessment of that kind

2 had been undertaken?

3 "Answer: And there is nothing to tell me there

4 wasn't."

5 And David Watkins himself in his evidence -- we saw

6 the letter in draft, you remember -- said:

7 "Threat assessments were undertaken by

8 Security Branch of the RUC and they took the advice of

9 Special Branch Headquarters, Headquarters of the RUC."

10 So it would appear then, certainly based on that

11 sort of evidence, that this gap in understanding with

12 which I began, continued throughout the process and in

13 particular when the draft to go to Paul Mageean, which

14 went on 24 September, was being considered.

15 SIR ANTHONY BURDEN: Would you consider, Mr Phillips, that

16 the process of acquiring threat assessments is covered

17 under the gamut of operational independence of the Chief

18 Constable or outside of it?

19 MR PHILLIPS: You mean, sir, the way in which it is

20 conducted?

21 SIR ANTHONY BURDEN: Yes. Would the NIO have had any remit

22 to interfere?

23 MR PHILLIPS: I doubt very much that they would. I think

24 that those matters, the way in which the police conduct

25 threat assessments, are obviously matters within the




1 province of the police, within the province of the

2 Chief Constable.

3 However, what you are looking at here is the

4 misunderstanding which, if B144 is right, existed both

5 within the force and outside as to what they were

6 actually doing, as to what made up the assessment. But

7 there is another point: what the witnesses from the NIO

8 side seemed to have thought was that this would be done

9 in the KPPS way, and we have heard how that was done and

10 of the importance, indeed, the leading role in that, of

11 the Security Branch.

12 Now, it looks as though what happened here is that

13 they assumed that that was the treatment that it was

14 getting. I think it is right to say -- I will be

15 corrected if this is wrong -- that at no point did

16 an NIO official ask for that particular treatment. You

17 see, as Mr Harvey pointed out in his submissions, the

18 NIO officials who were expert in this, the KPPS people,

19 were not involved or not until the very, very end of the

20 third incident, you remember, when G115 is approached

21 for his advice.

22 So there were clearly officials within the NIO who

23 were familiar with the KPPS system, and it may well be,

24 sir, that the problem here comes back to the unusual

25 origin of the request. If you look at the force




1 orders -- which we haven't done -- if you look at the

2 standard situation, which I tried to put into two

3 categories, it doesn't fit either and it may be that

4 that's what, as it were, caught the system on the hop.

5 Now, sir, just finally on the threat note, I have

6 already put it, with a very considerable sigh of relief,

7 to one side, pointing out that you have indeed received

8 submissions about it, including a very detailed

9 analysis, if you remember, of the relevant fax header

10 sheets, amongst other things, in order to establish

11 whether or not the document was faxed. And if it

12 wasn't, how it got there. And to all of that

13 complexity, you will remember was added the mystery of

14 its appearance or reappearance, or not, on the file and

15 that involving P136 and the two MIT officers who gave

16 evidence to you.

17 I'm not going to enter any further into that because

18 I'll simply confuse you, I am afraid. What I would like

19 to remind you of, finally, is this in relation to the

20 threat letter: in the course of the evidence your

21 counsel deployed the letter and suggested to various

22 Special Branch and other officers whether it would have

23 made any difference in the assessment process; in other

24 words, had they seen the letter, had they been aware of

25 the letter, would it have altered the assessment they




1 would have given. And I think it is right to say that

2 in each and every single case, although they express

3 themselves understandably in different ways, they said

4 that it would not have made any difference to their

5 assessment. And that's important that I should remind

6 you of that, although, of course, it begs the question

7 of the exercise that they were engaged, because if, of

8 course, it was limited in some cases certainly to the

9 mere checking of the records -- maybe, one doesn't know

10 whether that sort of document would ever have made

11 a difference, would ever have registered with them,

12 given the rather limited checking exercise that they

13 were doing, as it were, on the ground. But it is right

14 to say that those who at least appeared to have

15 expertise in the matter were given the opportunity to

16 comment, and all said, as I remember: no, it wouldn't

17 have made any difference.

18 Now, can I turn to --

19 DAME VALERIE STRACHAN: Before you leave the great threat

20 letter, am I right in thinking that we ought, as

21 a Panel, to consider whether its transmission or

22 non-transmission, its appearance, its disappearance, its

23 reappearance, was entirely a matter of accident or

24 whether there might have been any sinister goings-on

25 behind it?




1 MR PHILLIPS: Well, I think it is fair to say that nobody

2 that I'm aware of has come to the hearings to point, as

3 it were, a sinister finger at any NIO or other official

4 in relation to the curious -- I accept, the curious --

5 business of what did or didn't happen to it and the

6 various conflicting accounts about that.

7 I think all I would say is that it is a feature, as

8 I have tried to show, I think -- it is a relatively

9 minor feature of the history, and your List of Issues

10 include questions about how threats were considered and

11 processed.

12 There is another aspect to this, which may explain

13 the very detailed approach to it in the NIO's

14 submissions, which is, of course, that the particular

15 individual involved was the focus of comment in the

16 Ombudsman's report. Now, you, of course, have had the

17 opportunity to consider the matter in much greater

18 detail, at least so far as I'm aware, you have, and you

19 may well feel, if you conclude, as the NIO urge you to,

20 that there was no fault or that there was certainly no

21 sinister intent on the part of that official, that it

22 would be right so to record in your report. That's all

23 I say about that.

24 Now, what I would like to do next is to look at

25 chapter 4, which is where we consider another security




1 or safety issue, namely the question of KPPS, as it

2 arose, and to the extent that it did arise in relation

3 to Rosemary Nelson during the proximity talks.

4 Partly with an eye on the clock and partly for sheer

5 variety, I'm going to approach this in a very different

6 way. It is dealt with in chapter 4 of the submissions

7 and, again, I point out that it has been the subject of

8 detailed treatment in writing on the part of both the

9 family and, unsurprisingly, the NIO.

10 The focus of this aspect of the Inquiry's work is on

11 the suggestion made for the first time after

12 Rosemary Nelson's murder that she was refused entry to

13 the KPPS. That was a suggestion made by

14 Breandan Mac Cionnaith, the spokesman of the GRRC, on

15 the day of the murder and was subsequently taken up in

16 newspaper articles and then featured in a British Irish

17 Rights Watch report, published, I think,

18 in December 1999, entitled "The murder of

19 Rosemary Nelson".

20 Now, in a moment I'm going to take you to two pages

21 of charts, which I'm going to use to go through the

22 history. But can we look now at the index to chapter 4

23 (displayed)? The structure of this chapter, therefore,

24 is to give you a summary of the allegations that I have

25 just mentioned, to deal with the evidence that you




1 received on the topic. And where it says "Chronology of

2 requests", that is a reference, as we will see in

3 a moment to the coloured charts.

4 There is then a section that deals with the scheme

5 itself and then -- and I'm not going to dwell on that at

6 all -- a relatively brief section, 4.5, on the political

7 context. And that is focused on the evidence that you

8 have heard about it. There is no attempt in this

9 chapter to go over yet again the chronologies that

10 I mentioned yesterday morning, which we have prepared

11 for you in relation to Drumcree and its place in the

12 political context at the time.

13 What I would like to do in relation to that issue

14 and the importance of Drumcree in this period is to

15 remind you of just two very short passages from the

16 evidence, first from Stephen Leach's statements at

17 paragraph 7, RNI-841-304 (displayed), where he said:

18 "Parades, and Drumcree in particular, were major

19 issues in the 1990s. They had the potential to derail

20 the political process. We, therefore, had an interest

21 in defusing Drumcree and other parades without

22 alienating either side of the community."

23 And that theme of the potential to derail the peace

24 process is very much supported by one of the memos that

25 we have in 308, the file I mentioned yesterday, where




1 the Prime Minister was advised on 25 June 1998 in these

2 terms:

3 "Drumcree could lead to the collapse of the whole

4 agreement."

5 And although, in our background material we, of

6 course, trace the history of the dispute from earlier in

7 the 1990s, the particular year with which we are

8 concerned from the KPPS point of view is 1998 and that

9 was the year, as I indicated just a moment ago, when

10 that protest became, as it were, a magnet for those who

11 objected to the way things were going in

12 Northern Ireland politically and in particular to the

13 Good Friday Agreement.

14 So the dissident elements, those who did not accept

15 the agreement, sought to use the protest and what was

16 going on there to advance their cause, raising at least

17 the possibility, so far as the Government was concerned,

18 that in their view the good work of the agreement would

19 be undermined.

20 Now, I mentioned the charts and what I'm proposing

21 to do on this topic is to use the charts, and I hope

22 only the charts, to remind you of the key features in

23 the history. So could we have chapter 4, page 9 on the

24 screen, please (displayed)?

25 Now, I don't know, is it possible to have page 10 on




1 as well? No? Right. Okay, well, let's stick with

2 page 9. It is in a bold variety of slightly pastel

3 colours, you will see. The point of them is to

4 differentiate between the different parts of the

5 history, but also between the different organisations or

6 individuals concerned. And you will see the four

7 colours in the key: The yellow, KPPS; the purple, PSNI;

8 the blue for the NIO, lumped together for colour

9 purposes with 10 Downing Street; and the pinky colour

10 being for the GRRC and Mr Mac Cionnaith.

11 The reason these charts have been prepared is to

12 reduce a rather complicated story to its essentials.

13 You will see the way that the various different requests

14 by the Coalition -- which, for all material purposes,

15 means Mr Mac Cionnaith, so far as this is concerned --

16 you will see how those matters come up and you will see

17 also, on the right-hand side of the screen, some very

18 important boxes which mark the stages of the process so

19 far as KPPS is concerned and are of considerable

20 importance when you come to consider whether in fact the

21 evidence that you have now heard and read supports the

22 allegations that have been made.

23 Now, in the light of what I have said to you about

24 witness evidence already, it is right that I should

25 underline the point that Mr Mac Cionnaith who, as the




1 chart, never mind the documents, shows, was central to

2 all of this, both to the negotiations led on the

3 Government's side by John Powell, but also to this

4 question of KPPS, he has declined to cooperate with the

5 Inquiry, and so you don't have either the benefit of

6 a statement from him and nor have you had the

7 opportunity to see his evidence, his account, the

8 allegations that he made, tested in the hearings by

9 counsel on your behalf.

10 But as with all other areas of case, my submission

11 is that you should consider the material that you do

12 have, and all of it, and come to the conclusions that

13 you think are reasonable on the basis of that.

14 What I hope the chart illustrates very clearly is

15 the requests that the documents, that the evidence,

16 shows were in fact made, the circumstances in which they

17 were made and in particular the moments at which the

18 ball, if I can put it this way, went into Mr Mac

19 Cionnaith's court.

20 In the third box in pink on the right of this first

21 chart, you will see following a home visit on 23 July in

22 relation to his home position -- that's to his house --

23 it was agreed that he, Mr Mac Cionnaith, would fax those

24 details, the details of the other members of the

25 Coalition, to the NIO.




1 What you do not see at that point, nor at any other

2 point in the history is of that detail, those details,

3 coming back.

4 Now, going back to the left-hand side here in this

5 very simple coloured form, you will see the history of

6 the assessments I mentioned earlier on Mr Mac Cionnaith

7 and Councillor Duffy, who appears to have been, as it

8 were, swept up in this by Breandan Mac Cionnaith.

9 There is no indication that he, the councillor,

10 Councillor Duffy, took steps of his own, indeed had any

11 involvement in the process whatsoever, but he was

12 included in the assessment and you will remember the

13 evidence here that the political officials, officials on

14 the political side at the NIO engaged in the proximity

15 talks, including Mr Leach, received what to them was the

16 wrong assessment from Security Branch, the level 4

17 assessment, which would not allow for admission to the

18 scheme. An attempt was made to persuade the

19 Security Branch to have another think about it. I'm, of

20 course, expressing this in extremely crude language, but

21 I hope you remember the evidence.

22 It is perfectly obvious what was going on, and lo

23 and behold they did not change their view, despite

24 having had the pamphlet, the one we have looked at

25 already, drawn to their attention. That's 13 September.




1 And the matter then went up to the Secretary of

2 State. Mr Leach was very closely involved in redrafting

3 the submission, if you remember, but the effort

4 failed -- if we turn over the page -- until the

5 intervention of Mr McCusker, who persuaded the Secretary

6 of State to accept the proposal -- can we have 4.10,

7 please (displayed)? Thanks.

8 You will see from November we are into another

9 phase, which is the phase that eventually involved the

10 Rowntree Trust and that, as an alternative source of

11 funding for something which was completely outside the

12 KPPS and, therefore, involved -- had to involve -- did

13 involve -- this charitable trust. And here, again, on

14 the right-hand side of the screen following the meeting

15 in November, you will see another moment where the ball,

16 as it were, came back to Mr Mac Cionnaith, because the

17 submission that he had produced for the Trust didn't, in

18 Mr Pittam's view -- Mr Pittam was the Trust official,

19 you will remember -- didn't meet the charitable test

20 that had to be met if the Rowntree Trust was to fund the

21 measures. It simply wasn't what he needed to go to his

22 trustees.

23 And at that point, again, the matter gets stuck and

24 nothing was ever done, on the evidence we have heard and

25 in the documents we have gathered to advance it.




1 You will see, going back to the left, at the end

2 of November the business of security continued to be

3 a feature of the negotiations, or perhaps more

4 accurately of the position before agreement to resume

5 negotiations was obtained. The business of implementing

6 security measures for Mr Mac Cionnaith and Mr Duffy also

7 continued, but in all of that period, late

8 1998/early 1999 -- I am afraid there is a typo in the

9 third box on the bottom there -- that should be 1999 --

10 there is no further movement, no further development on

11 the right-hand side. And, therefore, you will see that

12 at the time of the meeting between the delegation and

13 the Prime Minister, no further progress had been made.

14 And in the summary produced by Mr Powell on the day

15 of the meeting -- we are not going to look at it, but it

16 is RNI-306-043 -- it is notable that no reference is

17 made to this issue having been raised by the delegation

18 at their meeting with the Prime Minister, and that's

19 confirmed by Mr Powell in his statement to you at

20 paragraph 25. He said:

21 "Rosemary Nelson's security was not raised with me

22 during the meetings I had with the GRRC in July

23 and December 1998, or at the meeting with the Prime

24 Minister in January 1999."

25 And so, sir, that is the position when you see, on




1 the right-hand side of the screen, the entry for, on

2 15 March, the murder of Rosemary Nelson.

3 Sir, would that be a convenient moment?

4 THE CHAIRMAN: Yes. Thank you very much.

5 Just after half past three we will resume.

6 (3.18 pm)

7 (Short break)

8 (3.37 pm)

9 THE CHAIRMAN: Yes, Mr Phillips?

10 MR PHILLIPS: Sir, before leaving this topic in which, by

11 use of the charts, I have largely avoided reference to

12 the detail of the evidence, I do want remind you of one

13 piece of evidence that you may think is significant, and

14 the background to it is the BIRW report, which, if you

15 remember, was one of the sources of the allegations that

16 I mentioned. And we can see the relevant page at

17 RNI-306-173 (displayed). There are two relevant

18 paragraphs, the first at the top of the page, 3.4, where

19 it begins:

20 "Rosemary Nelson did allow the GRRC to make an

21 application on her behalf to join the Key Persons

22 Protection Scheme ..."

23 Then it continues:

24 "... although she had reservations about the RUC

25 assessing her safety."




1 Then further down the page at 3.5, about ten lines

2 into that paragraph is the sentence:

3 "A specific request was made to Tony McCusker ..."

4 Remember his role in all of this:

5 "... as the NIO's representative to place her on the

6 Key Persons Protection Scheme, although the GRRC

7 explained there was some reluctance on her part to have

8 the RUC visit her home."

9 Now, in the light of those suggestions, or

10 allegations, in the report, Jane Winter's evidence to

11 you was of some interest, because at Day 29 between

12 page 11 and page 13, she clarified these matters and

13 said that no such application, the application referred

14 to certainly at the top of the page there, 3.4, was

15 actually made, her belief was, no doubt based on what

16 she had been told, that GRRC members had been informed

17 there was no point in applying because they wouldn't

18 qualify as they were not councillors. And you may

19 remember that she attributed this feature of her report

20 to poor recollection on the part of Mr Mac Cionnaith --

21 you remember, he was the main source of what was said in

22 the report -- due to his grief following

23 Rosemary Nelson's murder. That was the same day, 29,

24 pages 9 to 10.

25 So that's one example I would highlight for you




1 where the evidence revealed something rather different

2 to what had been originally alleged in this case in the

3 report.

4 Sir, for completeness I should mention that at the

5 end of chapter 4, in the written submissions, there is

6 a section, 4.14, "Review of the KPPS to the present

7 date", and that looks at what has happened to the scheme

8 in the succeeding years, picking up those aspects, you

9 remember, of the List of Issues which focus not only on

10 happened at the time, but what changes to systems have

11 been made since and whether any improvement could yet be

12 made.

13 Now, sir, the next matter I want to mention even

14 more briefly, and which we have not treated in any

15 detail in our written submissions but which has been the

16 focus of consideration in the family submissions

17 certainly, and in the NIO's submissions, is the question

18 of other threats to Rosemary Nelson; in other words,

19 matters arising other than in the context of the

20 complaints and the other questions that you have

21 considered in great detail.

22 That's obviously not just the threat letter that we

23 looked at, or at least I mentioned earlier, but the

24 various other pieces of evidence from members of staff,

25 family members and others concerning anonymous telephone




1 calls, messages, matters of that kind.

2 I'm not going to go into any of the detail of that,

3 but it is important to bear it in mind when considering

4 a further point, which I am afraid, again, I'm going to

5 treat extremely briefly, which is the issue of her own

6 attitude to these issues, to these matters of safety and

7 security. Can I just make some brief observations about

8 that?

9 The evidence that you have concerning her attitude

10 to her own security is mixed evidence. The level of

11 concern that she displayed about safety, her own

12 security, varies depending on the witness's account,

13 their perceptions of matters, it may be depending on

14 different times or points in the chronology at which

15 they had relevant experiences or conversations with her.

16 You may think that in assessing that evidence --

17 again, the detailed references are in the Full

18 Participants' written submissions -- that some account

19 at least needs to be taken of the perspective of the

20 recipient; in other words, whether their understanding,

21 their assessment of her views about these matters was in

22 any way coloured by their own take on the matter, their

23 own view of these issues.

24 Now, in general -- and it is hard to generalise

25 about this evidence, but in general I would suggest that




1 the level of concern or fear that she expressed to her

2 family and to members of staff, for example, seems to

3 have been at a lower level than that recorded or

4 displayed to others, for example, the delegation from


6 However, it isn't as simple as that, because you do

7 have evidence, including evidence from Dara O'Hagan, for

8 example, one of her friends, that she was very concerned

9 about her security. And you may also think that there

10 is a broad, although, again, not unanimous consensus

11 that those fears, those concerns increased over time.

12 Now, I'm going to leave that evidence there, as it

13 were, and look at the distinct but related question of

14 what she did in practical terms about her own security.

15 And, again, you have heard from various different

16 people, including, and most importantly, you may think,

17 from her husband, and the evidence suggests that she did

18 not take security measures, and various explanations

19 have been given for that. They are not justifications,

20 they are not required, but various explanations have

21 been given: the desire to live a normal life; not to

22 have her routines interrupted by that sort of

23 consideration; a sense of security, perhaps a false

24 sense of security, because of having grown up and

25 continuing to live and work in the same area; that sense




1 which must be very common that it won't happen, it

2 couldn't happen to me; and in particular that after the

3 murder of Pat Finucane, there wasn't a realistic

4 prospect of another lawyer being murdered. Finally,

5 there was at least some sense that there was really

6 nothing to be done. If people were out to kill you,

7 then whatever you did would only take you so far.

8 Now, I'm not suggesting that it is possible to say

9 that at every point in the relevant history,

10 Rosemary Nelson's position on these issues was X or Y;

11 it is more than possible that her attitude changed or

12 fluctuated over time, but that, in a summary way, is

13 what I would suggest the evidence has revealed.

14 DAME VALERIE STRACHAN: Perhaps also that the fact of having

15 a high profile might itself provide security.

16 MR PHILLIPS: Exactly. I'm sorry, I should definitely have

17 had that in my list, because that was a theme that

18 a number of witnesses mentioned: that it was seen as

19 a form of protection in and of itself, that in order to

20 underpin one's safety, a degree of public exposure was

21 no bad thing.

22 Now, all of that being said, what you do have in

23 terms of what she is recorded as expressing or saying

24 about this of herself, of her own position, does, you

25 may think, leave the situation where what she may have




1 been doing, so far as her staff was concerned, shrugging

2 things off, making little of them, is in contrast with

3 some of the more public pronouncements that were either

4 made by her or were made on her behalf, for example, by

5 the NGOs, where, for example, you get -- and this is

6 very much focused on in the NIO's submissions -- the CAJ

7 raising issues, talking about forms of protection. And

8 then it appears from the evidence, for example,

9 including her questions and answers, the answers she

10 gave to the Congressional Sub-committee, that she hadn't

11 made an application, and she explained why and that was

12 to do with the involvement of the police.

13 It is a complicated, as I say, and difficult area of

14 the evidence, but looking at it in that broad way, you

15 may indeed believe that there is that difference

16 between, as it were, the private side, what was being

17 said in the house or in the office, and the rather more

18 public pronouncements, either made by her or made by

19 others acting on her behalf.

20 THE CHAIRMAN: But Rosemary Nelson's attitude or, indeed,

21 conduct in relation to protecting herself cannot

22 derogate from the state's obligation to her.

23 MR PHILLIPS: No, I'm not suggesting that for a moment, sir.

24 THE CHAIRMAN: It may affect the way in which the state

25 discharges its obligation, but not the obligation




1 itself.

2 MR PHILLIPS: No, it can't be waived by the individual.


4 MR PHILLIPS: Exactly. So although I have taken a little

5 time to make some observations about it, it only takes

6 you so far.

7 Now, sir, what I would like to do next is to turn to

8 a completely new topic, and this is chapter 5 of the

9 written submissions and that concerns the Part 2

10 evidence and Part 2 issues.

11 Chapter 5 comes in the mid-point of the nine

12 chapters and is in many ways at the centre of your work,

13 or at least of a good part of your work.

14 What I would like to do first is to look at the

15 index to the chapter. That's the Chapter 5 index we

16 have on the page there (displayed). We need only look

17 at this first page, but you will see here that we have

18 grouped together in one chapter all of our submissions

19 on this evidence and on the material that you have

20 received, and we have done that for convenience and, we

21 hope, also, so that those issues can be considered with

22 clarity.

23 However, as I have submitted in relation to earlier

24 aspects of the case that we have looked at, it is

25 possible and perhaps preferable to see this material,




1 this documentation, as sitting not apart from, but

2 behind the evidence and certainly the Part 1 evidence.

3 Now, this material has its own chronology, but as

4 I was suggesting earlier, there are points during that

5 chronology when it is particularly important to see what

6 was going on in, as it were, the outside world in

7 connection with the Part 1 issues, and that clearly

8 applies the other way as well. So this is the point at

9 which it does become important to make sure, when you

10 are considering complaints or threat assessments or any

11 other matter of that kind, to look across to the Part 2

12 material.

13 Now, sir, so far as the submissions I'm going to

14 make in this public hearing are concerned, there are

15 some limits still remaining on what can be said because

16 of concerns in relation to the potential impact of

17 reference to aspects of the witness evidence. And for

18 that reason too, one of sections, which you will see

19 referred to on the screen, 5.6, "Rosemary Nelson

20 intelligence", has been withheld, has not been

21 distributed in the normal way to the Full Participants;

22 rather, they have been invited to attend here to read

23 that section for themselves.

24 So I am afraid the index on the screen gives an

25 impression only of the pages of the chapter that have




1 been distributed. There are, I think, possibly

2 200 further pages in that section.

3 Now, given its title, "Rosemary Nelson

4 Intelligence", there is no point in my pretending that

5 it is an unimportant section, and what I'm intending to

6 do on the Part 2 points is to summarise its contents

7 this afternoon in a way that is consistent with the

8 constraints that I have already mentioned.

9 Now, there is, of course, another area of Part 2

10 evidence which has not been addressed in any detail in

11 this chapter, and that's the evidence that was given by

12 witnesses in closed session, although what you will see

13 at various points in the text are references to

14 summaries of that part of the closed session evidence

15 which can be disseminated. And that has been done in

16 accordance with your ruling on closed hearings over the

17 last few months.

18 Now, so far as Part 2 is concerned, you will

19 remember the history of this, that when I began my

20 opening at the outset of the hearing, the bundle and the

21 statements had not been disclosed. What I said to you

22 at the very beginning, Day 1 and I think again on

23 Day 10, was very limited, but I then opened the issues

24 to you on Day 40 in some detail.

25 However, because of the amount of time it took to




1 deal with all of the sensitive and other redactions,

2 even at that point, at the end of June last year, by no

3 means all of the statements which you have now seen and,

4 of course, the evidence you have since heard, had been

5 disclosed. And so this chapter, which is a very

6 substantial chapter indeed, in a sense represents the

7 opportunity, and the first opportunity, to take into

8 account all of the Part 2 material, both the evidence

9 and the documentation.

10 Now, so far as structure is concerned, can I just

11 highlight a few aspects before looking at the

12 intelligence on Rosemary Nelson? The first three

13 sections give an account of the structure and operation

14 of the three intelligence gathering organisations or

15 agencies in Northern Ireland at the time so far as is

16 relevant. And can I tell you about the charts that we

17 have prepared in this, as in just about every other

18 chapter of the submissions.

19 Can we look, please, at RNI-934-019 (displayed)?

20 Now, these are the charts that we tried to put together

21 and, indeed, to put to many of the witnesses in the vain

22 hope -- vain, as it turned out -- that they would turn

23 out to be correct. What we have done in bundle 934 is

24 to ensure that you have final versions of them, and

25 that's between this page and RNI-934-022.




1 But in addition, and for the purposes of these

2 submissions, we have produced other charts and I would

3 like to look at them now, please, at RNI-934-023

4 (displayed).

5 Now, this focuses on one of the three Special Branch

6 regions and gives you a rather more detailed insight

7 into the making-up of, in this case, the Belfast Region.

8 If we could go to the next page, please, RNI-934-024

9 (displayed), and this is another chart, a slightly

10 different version of the same part of Special Branch,

11 the Belfast part, but in this one, I hope helpfully, we

12 have also included the ciphers of some of the relevant

13 witnesses so as to let you know where they fit into the

14 structure. RNI-934-025, please (displayed).

15 The same for South Region here. That's the general

16 structure. And then RNI-934-026 (displayed), and here,

17 again, with the ciphers put in to the relevant places of

18 the structure.

19 Now, sir, there is one other introductory topic

20 I would like to touch on and that is the question of RUC

21 primacy, and I would like to start by looking at the

22 first subsection in which this is addressed.

23 Can we have chapter 5, page 4, please (displayed)?

24 Yes. Here is set out the evidence of Special Branch

25 witnesses, the section over the next four or five pages,




1 expressing their views on the question of primacy and in

2 particular of what happened in practice. But we have

3 also approached the matter from the Security Service

4 end, if I can put it that way, and at 5.3.2, which is

5 page 123, we have set out the evidence there and that

6 goes on until 125.

7 The reason I have directed your attention to that is

8 because of the submission, the written submission, you

9 will remember, the Security Service put in -- the

10 references are paragraphs 4.1 to 4.5 at RNI-924-007 to

11 RNI-924-008. There, you will remember, in reliance on

12 the evidence of witness S224, they suggested that indeed

13 primacy was, as he put it, a fluid concept. It wasn't

14 entirely clear, at least to me, that that was their

15 position when, for example, the DCI gave evidence to

16 you. His comments are recorded there.

17 But it would appear, at least from those

18 submissions, that they have adopted the position -- if

19 we turn the next page, please, RNI-924-124 (displayed),

20 as set out, for example, in this passage of the evidence

21 of S224. It continues over the page, when he says:

22 "Primacy was a fluid concept that developed over

23 time and it depended upon the relationships between key

24 participants in that process, whether it be the head of

25 my section, the head of branch, the DCIs of the day, the




1 Head of Special Branch and the various regional heads."

2 And it is, I would suggest, important in looking at

3 liaison between the two organisations and what happened

4 on the ground, as it were, in those parts of the

5 evidence where there is contact between them, to bear

6 that evidence from both sides well in mind.

7 Now, what I would like to do next is to look at the

8 issue of the intelligence relating to Rosemary Nelson.

9 When I have done that, I intend to say something briefly

10 about the last section of chapter 5, which is headed

11 "Allegations of state involvement in Rosemary Nelson's

12 murder". I'm not going to say anything more about the

13 structural sections and the sections which focus on

14 intelligence about Loyalist organisations of one kind or

15 another.

16 So far as the intelligence relating to

17 Rosemary Nelson is concerned, as we have all seen now in

18 the course of these hearings that Special Branch and

19 particularly the offices in Lurgan and Portadown

20 obtained a considerable volume of intelligence on

21 Rosemary Nelson over a period of five years, beginning

22 at the end of 1994 and ending shortly after her murder

23 in March 1999.

24 May I suggest at the outset that the following

25 points should be borne in mind when considering that




1 intelligence? First, the wider focus of

2 Special Branch's efforts in this period was on gathering

3 intelligence on the capabilities and intentions of the

4 various mainstream and dissident Republican and Loyalist

5 paramilitary groupings and on the political groups

6 related to them and on the individuals who were active

7 throughout this period.

8 Secondly, these were, as a number of the witnesses

9 have told you, busy times, or very busy times, for

10 Special Branch and particularly for the officers working

11 in Lurgan and Portadown, where most, if not all, of the

12 terrorist groups were operating and where sectarian

13 tensions were persistently exacerbated by the Drumcree

14 parades.

15 Now, in relation to individual intelligence reports,

16 in my submission, one must be careful in the assessment

17 of their significance or value. One needs, I would

18 suggest, to recognise the fundamental tactical and

19 strategic purposes for which intelligence was gathered,

20 the prevention by pre-emptive action of further

21 terrorist atrocities and closer understanding of local

22 and national political issues which had the potential at

23 least to affect the peace process.

24 But I hope it goes without saying that one needs to

25 bear in mind that not every piece of recorded




1 intelligence was necessarily of great or high value or

2 significance. Some might be of pressing short-term

3 importance, some might have a minor value only as part

4 of a much bigger pattern evolving, perhaps, over time a

5 pattern of conduct, for example, on the part of an

6 individual or an organisation. Some intelligence may

7 have had a relevance only on a temporary basis to

8 a particular covert operation, and other intelligence

9 may in fact have had no immediate value at all, but have

10 been reported on the offchance, if I can put it that

11 way, that it might become useful in the long or longer

12 term.

13 Now, sir, the next point I have made is something

14 I submitted to you in my submissions on Day 40, which is

15 that the Terms of Reference under which you operate do

16 not require you to determine whether the intelligence

17 about Rosemary Nelson or, indeed, anyone else was in

18 fact true; rather, in my submission, you are concerned

19 to investigate what was known, what was thought about

20 Rosemary Nelson prior to her death and, of course,

21 whether any actions or omissions by the relevant

22 organisations -- the RUC, the Security Service or the

23 Army, for these purposes -- may in some way have

24 facilitated her death.

25 Nor, I would suggest, is the Inquiry in a position




1 to determine conclusively whether each of the individual

2 reports about her is reliable or wholly reliable. To do

3 that would require an investigation into the precise

4 circumstances of the reporting -- what was said by any

5 human source to the handler, what was heard in any

6 intercepted conversation -- and that is simply not

7 feasible at this distance of time.

8 In addition, even if you were able to establish

9 exactly what was said at the moment when the information

10 was passed on, that information itself may have been

11 incomplete. It may, taken on its own, be misleading or

12 ambiguous or ambivalent, and to understand its meaning

13 and significance you would need to investigate the

14 context in which it was given: who the original speakers

15 were and what was known about them; how credible the

16 source of the intelligence was; how, if it was a human,

17 he or she may have come by that information; what their

18 view on its significance was; why they were providing

19 it; in other words, what the relevant motivation was and

20 whether there might equally have been a motivation to

21 withhold information. And in my submission, it is

22 neither possible objectively nor proportionate in terms

23 of time and effort to investigate those matters in

24 respect of every report that we have gathered and put

25 into the bundle.




1 However, what we can do, and we have tried to do in

2 the course of the hearings, is to seek to understand how

3 and why some of the more significant intelligence

4 reporting about Rosemary Nelson and, indeed, about

5 various paramilitary groupings came to be recorded by

6 the various intelligence officers and their superiors;

7 in other words, the exercise is one with the aim of

8 seeking to examine how the officers subjectively

9 interpreted the intelligence they were given in the

10 light of their assessment of the various contextual

11 factors that I have mentioned; how reliable they

12 believed the intelligence to be and what they considered

13 to be its ultimate significance.

14 This, in my submission, is an important part of the

15 Inquiry's work, for you may well wish to determine

16 whether the Special Branch officers and the officers

17 from the other agencies recorded intelligence about

18 Rosemary Nelson reasonably and in good faith, or whether

19 on the other hand the reports they submitted, acted

20 upon, relied upon, were in any way distorted, whether by

21 reason of competence, prejudice or even malice.

22 And that, of course, involves at least to some

23 extent an assessment of the credibility of the various

24 officers who gave evidence to the Inquiry.

25 Now, sir, what I would like to do now is to look at




1 the picture, the intelligence picture, as it developed

2 over the years simply to remind you of the various

3 stages and to pick up some general points about it as

4 I go along.

5 As I have said before, it looks as though the

6 earliest reference, certainly disclosed to the Inquiry,

7 is December 1994, and in the two-year-period from then

8 to the end of 1996, there are a small number of

9 Special Branch reports about her but there is no

10 reference to her in any of the documents produced by

11 either the Security Service or the Army.

12 There are perhaps four reports that stand out in

13 this period. The first, in December 1994, records

14 intelligence that she was attempting to construct

15 a false alibi for Colin Duffy in the context of the

16 Lyness case; the second, some time later, April 1996,

17 that she was using her position as a lawyer to gather

18 information for PIRA, including details of police

19 officers; in the same month, the third, that she took

20 a keen interest in the Republican movement and

21 especially Sinn Fein; and lastly, the report in 1996

22 that she intended to submit multiple complaints to the

23 RUC about Drumcree.

24 Now, so far as the evidence that was given about

25 that reporting was concerned, it is addressed in the




1 written submissions, but in summary there was nothing in

2 the evidence that they gave to suggest that those

3 officers doubted the veracity of the reports.

4 That, of course, is not to say at all that the

5 Inquiry should take it as read that each piece of

6 intelligence was wholly accurate. For all the reasons

7 I have given, it may be partial, it may be ambivalent,

8 and it is a commonplace in this area, you may think,

9 based on the evidence, that active interpretation is

10 required to render reporting useful, usable and, indeed,

11 in some cases comprehensible.

12 Again, in this context I would submit that the issue

13 for you is not so much the objective accuracy but the

14 reasonableness of the assessments which appear to have

15 been accorded -- or placed upon it by the relevant

16 officers.

17 For example, if we look at the December 1994

18 report -- and can we have that on the screen, please, at

19 RNI-541-001; and the report, I think, is at RNI-541-002

20 (displayed) -- it is possible, of course, that in

21 reality Rosemary Nelson was doing no more than to ask

22 one of Colin Duffy's associates to find out who may have

23 seen him at the time of the murder; the sort of thing

24 that a solicitor acting in defence of a client accused

25 of murder might well do. And, therefore, that this does




1 not reveal that she was conspiring with PIRA to obtain

2 false evidence.

3 But that was not the conclusion that the relevant

4 officer who reported it reached, you remember, and he

5 explained that, based on his knowledge of the provenance

6 of the intelligence, his understanding of the history of

7 the individuals involved and of their association with

8 one with another. And nor was it the conclusion reached

9 by that officer's superior, B567, who also knew its

10 provenance.

11 So taking that again just as an example -- and I'm

12 not proposing to go through all of this and read every

13 single report, you will be relieved to hear -- the

14 questions which you may think arise are: were the

15 originating officers' assessments reasonable? And: was

16 it reasonable for the superior, in this case B567, to

17 rely upon them?

18 Now --

19 THE CHAIRMAN: How would you suggest that we answer the

20 question of reasonableness?

21 MR PHILLIPS: Well, sir, the difficulty you have got, as

22 I see it, is, before that, deciding for yourselves in

23 relation to which -- in other words, how many --

24 individual pieces of intelligence reporting you think it

25 necessary to go through this, what sounds, I am afraid,




1 like rather an elaborate process of questioning, in

2 order to reach sensible conclusions on the issues that

3 you are in fact considering. The danger being that one

4 can get lost in the detail of the individual reporting,

5 rather than thinking things at a perhaps slightly higher

6 level and focusing on the answers that you do need to

7 provide in order to answer the List of Issues and to

8 discharge your Terms of Reference.

9 Now, so far as the case that you have posited, where

10 you are looking at a particular piece of intelligence

11 and trying to reach some concluded view on those

12 questions about it, what I suggest you have to do is to

13 apply to that question the knowledge that you have

14 obtained as a result of hearing the enormous amount of

15 evidence that you have now heard from a very large

16 number of officers, individuals, with wide experience in

17 this area, and then, if I may say so, apply to it your

18 own good judgment and collective good sense. I don't

19 know if that's an encouraging answer, or not.

20 THE CHAIRMAN: It is an answer.

21 MR PHILLIPS: It is an answer, thank you.

22 Now, so far as the matter slightly further up the

23 chain of command is concerned, as you have heard -- and

24 this is not particularly in relation to this earlier

25 period, but in general -- it looks as though the




1 officers, both in the region and those receiving the

2 reports at Headquarters and going up to very exalted

3 levels within Special Branch, formed the view that

4 Rosemary Nelson's association with PIRA and, indeed,

5 with local politicians as represented by the GRRC and

6 Sinn Fein, had changed from one of professional

7 neutrality, if I can put it that way, to one of sympathy

8 and active support.

9 And, again, in assessing all of that material, which

10 is by no means based on a single report, one has to

11 consider, in my submission, all of the evidence that you

12 have heard from individuals who formed and gave very

13 frankly to you their views along those lines, to what

14 the basis was.

15 For example, at the key moment when Mr Albiston gave

16 his views about it and was then followed promptly into

17 the witness box by B597, at that level you are a very,

18 very considerable distance away from the actual

19 reporting, and along the chain is a whole series of

20 links in which reliance is placed on the work done at

21 the level below. It is not a criticism.

22 THE CHAIRMAN: A problem is, is there any evidence of what

23 I would call analysis or intelligence validation?

24 MR PHILLIPS: That is the difficulty. And I think that

25 Mr Albiston in his evidence came close, as I recall it,




1 to accepting at least that this was a time following the

2 Warner Report and other matters of that kind when

3 Special Branch was having to, as it were, raise its game

4 from the analysis point of view, and that's what led to

5 the establishment of the IMG.

6 One of the reasons that that was established, you

7 will recall, was precisely so that Special Branch could

8 produce more of analytical value for their customers.

9 THE CHAIRMAN: We haven't seen much of the --


11 THE CHAIRMAN: If any.

12 MR PHILLIPS: In relation to the Rosemary Nelson

13 intelligence, if I can put it that way, other than those

14 occasions when it is brought together, for example, in

15 the Indus application, there is very little.

16 Now, that may not be an altogether fair point,

17 because no doubt the officers would say, well, given the

18 very limited nature of our interest, our proper interest

19 in Rosemary Nelson as a subject, an object of our

20 intelligence gathering, it wasn't appropriate to collect

21 all the material together so as to permit the sort of

22 analytical exercise that you may have in mind. There is

23 that extra factor to be remembered, and that in a way

24 takes us all the way back to just about the first thing

25 I said yesterday morning: in the intelligence field, as




1 in all other fields, one has to remember perspective,

2 and that's why just a little while ago, I tried to set

3 that report in the much broader context of the

4 intelligence requirements.

5 Now, so far as the views that were formed is

6 concerned, the question of trying to assess the

7 conclusions that were reached must also, in my

8 submission, take account of context, of the particular

9 society, the particular part of Northern Ireland,

10 indeed, in which Rosemary Nelson lived and worked where,

11 as a result of the divided nature, the sectarian aspect

12 to life, it may well be that views of individuals were

13 polarised, that extreme positions were taken. And that,

14 of course, is why, you may think, the local officers

15 stressed the importance of that, as it were, grass roots

16 knowledge, the knowledge that came through becoming

17 familiar with the particular workings, the particular

18 way in which the society in their part of

19 Northern Ireland operated.

20 And it is that sort of consideration, you may think,

21 which you have to bear in mind when considering evidence

22 which you heard from Special Branch officers to the

23 effect that -- and this was a phrase that a number

24 used -- the dogs on the street knew. A conveniently

25 vague expression, the implication certainly appearing to




1 be that what was known or reported, possibly in

2 circumstances of considerable secrecy, was in fact

3 common knowledge in a particular section of the local

4 community.

5 Now, that's something and that sort of expression

6 which came up, you may remember, in, for example, the

7 evidence about the extent to which the allegations

8 concerning the relationship between Rosemary Nelson and

9 Colin Duffy was known, the extent to which that was

10 a matter known outside the intelligence agencies, and I

11 will come back to that in a moment.

12 Now, one of the questions at the heart of the

13 Inquiry and, indeed, of this part of the evidence is the

14 issue of association. You will remember the suggestion

15 that Rosemary Nelson was targeted in the way that she

16 was, because people confused her with her clients.

17 So far as that is concerned, again, one has to

18 remember the context. Where, for example, she is seen,

19 and it is reported in the intelligence material,

20 associating publicly over a period of time with people

21 known or suspected to be members of PIRA, for example,

22 it may be -- one doesn't know for certain -- that

23 various members of the community, never mind specialist

24 intelligence officers, would, as it were, draw their own

25 conclusions, namely that she did indeed share the




1 relevant beliefs or aims.

2 So to the extent that you feel it necessary, the

3 question in this part of the case is in a sense the same

4 as in the other part, the open part, of the case:

5 whether you think that the interpretation of these

6 connections is based on a fundamental misunderstanding,

7 a misinterpretation of what was a solicitor/client

8 relationship between her and her clients of various

9 kinds -- I'm not just talking about Colin Duffy here --

10 or whether in fact what was being reported there was

11 something that went beyond that.

12 The final point in relation to the Special Branch is

13 what the consequences were. What were the consequences

14 of this reporting? You will remember, in terms of

15 taking it outside Special Branch, that the suggestions

16 of criminal or unprofessional activity, it was

17 acknowledged, had at least the potential to lead to

18 criminal investigation, reference to the professional

19 bodies. And, again, Mr Albiston, amongst others,

20 addressed that in his evidence.

21 But more broadly, the question arises as to what

22 effect this had on the Special Branch officers' view in

23 a general sense of her, and from that point, so far as

24 the Inquiry is concerned, the next question that arises

25 is the extent to which that information was passed out




1 of Special Branch into, first of all, other parts of the

2 organisation, the RUC.

3 Now, in relation to the report that she was

4 supposedly gathering information for targeting purposes

5 on police officers, there was some debate in the

6 evidence as to whether any warning was given, if you

7 remember, to the local uniformed or, indeed, CID

8 officers. It seems, perhaps because the intelligence

9 was of itself inconclusive and was not confirmed or

10 corroborated, that that was not done. However, what we

11 can see from the material is that by the end of 1996,

12 she had become someone for Special Branch to keep an

13 eye on.

14 So far as the Security Service and the Army are

15 concerned, there is no evidence that she came to their

16 specific attention during this period, 1994 to 1996, and

17 from the evidence you have seen and heard, it doesn't

18 appear that those agencies, those organisations, had any

19 particular interest in her during that period.

20 Now, turning to 1997, the volume of reporting by

21 Special Branch increases. It focuses in particular on

22 her association with local PIRA suspects and her

23 connection with the GRRC. However, when one looks at

24 the dates of the 1997 reports, it seems that there was

25 a marked increase in the reporting from the middle of




1 the year, in and after June 1997.

2 Now, so far as the Security Service is concerned,

3 she features in none of their documents during 1997,

4 although there is a reference to her in one of the NIIRs

5 dealing with -- I'm sorry, in reporting given to the

6 Assessments Group in relation to Drumcree. And in

7 relation to the Army, there is only one reference to her

8 and Colin Duffy, in a military report in August. There

9 are, in addition, Army reports concerning her and

10 Colin Duffy.

11 Sir, can I break off at this point to deal with

12 something which is related to this and which came up at

13 various points in the hearing in the context of

14 particular intelligence reporting about conduct of

15 the -- I think it was the Duffy case, because it

16 provides some sort of relief.

17 Now, this was the question that you posed to

18 Mr Donaldson, I think it was, relating to property in

19 a witness. And the question you asked, as I remember it

20 anyway, was simply whether the rules in Northern Ireland

21 were the same.

22 Now, I'm pleased to say that Paul Nelson's

23 solicitors have taken up this point with the Director of

24 Public Prosecutions in Northern Ireland, and I'm hoping

25 that if we look at RNI-407-012 (displayed), we will see




1 their recent letterhead "Property in a witness", and

2 there setting out the position and the question. And

3 the answer came back not from Sir Alastair Fraser, but

4 from somebody on his behalf at RNI-407-010 (displayed),

5 20 May. And his view, very clearly, you will see, in

6 the second paragraph:

7 "The director considers that there is no property in

8 a prosecution witness. There is no prohibition on, for

9 example, the defendant's solicitor approach the

10 prosecution witness with a view to consulting that

11 person about the evidence which the witness may give.

12 There is, however, no obligation upon the witness to

13 consult."

14 And there is a reference there to Law Society

15 guidance. A further letter went to find out whether

16 there was any earlier guidance than the 2000 guidance

17 referred to there, and the answer was that no such

18 earlier guidance was known about. And the rest of the

19 letter concerns a judgment relating to, as it were, the

20 practicalities of all of this as they came up in

21 a particular case. So I hope that that clears up any

22 possible uncertainty on this front.

23 THE CHAIRMAN: Thank you.

24 MR PHILLIPS: The suggestion that Northern Ireland should

25 have developed its own principles in this area and in




1 particular to have developed principles quite at odds

2 with those developed in England over many, many, many

3 years did seem surprising, if I may say so.

4 Sir, I'm going to suggest that we draw stumps now

5 and resume tomorrow morning.

6 THE CHAIRMAN: 10.15 in the morning. Thank you.

7 (4.45 pm)

8 (The Inquiry adjourned until 10.15 am the following day)




















1 I N D E X

Closing submissions by MR PHILLIPS .............. 1
3 (continued)