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Full Hearings

Hearing: 22nd June 2009, day 128

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

on Monday, 22nd June 2009
commencing at 10.15 am

Day 128








1 Monday, 22 June 2009

2 (10.15 am)

3 THE CHAIRMAN: It is very nice to see so many familiar faces

4 here again.

5 Yes, Mr Phillips?

6 Closing submissions by MR PHILLIPS

7 MR PHILLIPS: I would like to start by standing back and

8 marking the stage which we have reached today, and the

9 first thing I would like to say is this is not the end;

10 this is the final phase of these hearings, of course,

11 but, as I said at the outset in April last year, they

12 are simply one stage, albeit an important, one in the

13 work of the Inquiry. A great deal of work was

14 undertaken by you and by your team over a period of more

15 than three years before these hearings began so that,

16 for example, you were very familiar with a good deal of

17 the material and with the issues when we started

18 in April. And, of course, after I have stopped

19 speaking, another phase will begin, perhaps the most

20 important phase of all of your work, when you prepare

21 your report to the Secretary of State.

22 Over the course of the hearings, which began

23 14 months ago, you have heard evidence from nearly

24 150 witnesses and have taken into account the statements

25 of nearly 200 more. You have received evidence from




1 Rosemary Nelson's family, her friends, her neighbours,

2 her employees, her professional colleagues. You have

3 heard from representatives of non-governmental

4 organisations, both here and in the United States of

5 America, you have heard from journalists and

6 broadcasters, from ministers and officials, again, both

7 here and in the Republic of Ireland. You have heard

8 from the Special Rapporteur and his assistant, from the

9 former Commissioner for the Holding Centres,

10 Sir Louis Blom-Cooper, from Sir Ronnie Flanagan and

11 a very large number of officers or former officers of

12 the RUC and PSNI, including Special Branch officers.

13 You have heard from serving and former members of the

14 security services, from serving and former military

15 personnel and from the four senior police officers who

16 led the murder investigation, from the Kent officers who

17 assisted them and finally, of course, from Mr Ayling,

18 who was engaged by the Inquiry to provide expert

19 evidence on the efficacy of their work.

20 Now, in addition to all of that, you heard opening

21 submissions from me, taking up about 12 days, including

22 the Part 2 opening, you had brief oral submissions in

23 opening from some of the advocates and you have now

24 received substantial, or very substantial written

25 submissions from the Full Participants, as well as from




1 those representing Sir Ronnie Flanagan and the vast

2 majority of the police witnesses. And, of course, in

3 that material a great deal of attention has been given

4 to all of the main issues which you have to consider.

5 Now, most recently you had the oral submissions in

6 which the advocates not only addressed points taken in

7 each other's written submissions, but also offered you

8 answers to your questions, some of which were later

9 supplemented, you remember, from written material.

10 So in the light of all of that, I have very little

11 doubt that you need little assistance from me on most of

12 the issues you have before you. It must have been

13 obvious, for example, to everybody in this room during

14 the last phase of the hearings that you had a very firm

15 grasp indeed of the evidence and the arguments in play

16 here.

17 Now, in addition to that and by way of explanation

18 for the very much reduced timetable for these oral

19 submissions, one of the consequences of the

20 inquisitorial process that you have adopted -- not only

21 adopted, I should say, but pursued throughout the

22 hearings, despite challenge and various degrees of

23 discomfort with it having been expressed by some at

24 least of the Full Participants -- one of the

25 consequences, as I say, of that is that you have heard




1 already more from me over the last 14 months than you

2 would ever hear from a single advocate in any

3 conventional litigation.

4 So with all of that in mind, what we have done is,

5 as I say, to reduce the timetable for my oral

6 submissions and to produce in writing summaries of the

7 evidence that you have heard on what we believe to be

8 the principal issues that you have considered, and the

9 aim is to provide you in a single, albeit enormous,

10 document, a comprehensive record of the material

11 relevant to each of the nine topics.

12 Now, the difference -- and it is an important

13 difference -- between these chapters and the submissions

14 you have received from the Full Participants is that we

15 do not seek to make a case; rather, the idea that we

16 have is to ensure that when you are forming your own

17 conclusions, you will be able to do so with the benefit

18 of a full and, we hope, impartial account of all of the

19 material in those areas.

20 Now, sir, at this point I would like to reiterate

21 something I said at the outset, which is that the

22 Inquiry team, the team that acts on your behalf, and

23 specifically your counsel team, is neutral in all of

24 this. We hold no brief for any of the Full Participants

25 or for any other interest or position, and I venture to




1 repeat that point because over the course of these

2 hearings our impartiality, our neutrality, has been

3 called into question, both inside and outside the

4 chamber.

5 Now, we have borne these criticisms with fortitude;

6 we have very broad shoulders. However, I mention them

7 at this final stage of the hearings because, of course,

8 we are your counsel and so any criticism of us might be

9 thought to be a criticism of you. We are here, after

10 all, to assist you in your work and to act in accordance

11 with your instructions. If any criticism of you was

12 intended, it was utterly baseless.

13 Now, returning to this document, as I say, there are

14 nine chapters and we hope, of course, that they will

15 assist in the next phase of your work. Perhaps

16 dispiritingly, the next thing I'm going to say is that

17 the nine chapters do not cover every single topic on

18 which you have heard evidence during the hearings and

19 there will be one or two topics that I will touch on

20 over the next few days which are not addressed in the

21 document.

22 Now, although, as I say, most of the document

23 consists of an attempt at least to collate and order the

24 material in a coherent way, there are points in the

25 document at which suggestions or submissions are made to




1 you about what the evidence amounts to or about, indeed,

2 how the evidence might be interpreted or understood.

3 Those suggestions are no more than that. They are

4 submissions. They are observations. You will, I know,

5 make of them what you will and they are not intended as,

6 and should not be understood to represent your views on

7 any point.

8 Now, it is, I can't pretend otherwise, a substantial

9 document. However, that is, I would suggest, as much

10 a reflection of the vast range of material, not only

11 that you have considered during the evidence in the

12 hearings, but the written material that you have taken

13 into account on top of that. You will remember my

14 observation in opening that my oral presentation to you

15 was an incomplete and partial summary of the material.

16 Well, so it was. And that is, I am afraid, why this is

17 a very substantial document.

18 Sir, can I make a further point about it? It has

19 been prepared in a relatively limited period of time and

20 you won't be surprised to hear that its production has

21 been a team effort, not only involving counsel but

22 solicitors and administrative staff. And it is the

23 product of various different authors. Indeed, it

24 couldn't have been produced in the time available unless

25 that approach had been adopted.




1 So when, as I do, I commend it to you, I can do so

2 relatively dispassionately because it wasn't written by

3 me, or at least not to any material or, I hope,

4 discernible degree. So I can't take any credit whatever

5 for its many virtues; that belongs to the team.

6 However, I do take full responsibility for any flaws,

7 inconsistencies, errors or infelicities that it may

8 contain.

9 That leads me to one other point, which I would like

10 to make before setting out the structure of what

11 I propose to say to you, and it is an obvious point

12 perhaps, but I think not made in public so far. And it

13 is this: that the fully inquisitorial approach which you

14 have adopted in this hearing has imposed a burden on the

15 advocates which was unlike any imposed even in the

16 heaviest adversarial litigation and which, very simply,

17 could not have been sustained without the sort of

18 dedication and unflinching support which was given to us

19 at all stages by other members of the legal and

20 administrative team, whose voices you did not hear but

21 whose contributions were invaluable. So the fact that

22 they have worked so hard to produce these submissions

23 simply shows that that work has continued to the end of

24 these hearings and that tireless contribution, the

25 contribution that they have made to your work, is one




1 which I, for one, would not wish to go unacknowledged

2 publicly.

3 So, so far as the course that I intend to follow is

4 concerned, I'm not going to take you through the

5 document in any detail, you will be relieved, no doubt,

6 to hear. What I am going to do is to introduce the

7 various chapters to you so you can see the way that they

8 are themselves structured, and to do that in what I hope

9 will be a logical order.

10 I will try to draw out particularly significant

11 points in the evidence and the material before you, and

12 when looking at the document, I will also introduce some

13 charts, some tables, that we have prepared under the

14 various headings, which we hope will give shape to the

15 evidence. And, for example, we will set out the

16 chronology of the material which, in some of the areas,

17 is so very important.

18 Now, so far as the Full Participants' submissions

19 are concerned, I won't be attempting to deal with all of

20 those or, indeed, anything more than a fraction of them;

21 that would require a lot more than three days. In any

22 event, as you will remember, you heard submissions on

23 the other Full Participants' submissions made by

24 advocates during their oral submissions to you.

25 But what I will do is to deal with some of the




1 points that have been made, which seem to me at least

2 most obviously to require some sort of comment, and also

3 to refer to one or two points of law which have been

4 raised in the submissions, although in general it will

5 be my suggestion to you that those submissions are

6 unlikely to detain you very long, but some of the

7 issues, the legal issues, are rather more apparent than

8 real.

9 Now, in addition to that, what I'm hoping to do is

10 to draw out some broader themes for you and to show you

11 where there is an overlap between the evidence on

12 various topics, between the issues, that you have to

13 consider.

14 To take an example, we have chosen to present the

15 written material under nine headings, in nine chapters,

16 but it would have been just as easy to have 20 or,

17 equally, to have four, or three or four, with the issues

18 under what are now separate chapters brought together.

19 Now, so far as the chronology is concerned, I'm not

20 intending to approach matters entirely chronologically

21 but, as I have already said, it is, I would suggest,

22 important in all of the issues to have the chronology

23 well in mind at all times. And by that, I don't just

24 mean the chronology of a particular area of evidence,

25 but how what was going on at a particular time in that




1 area is matched by what may have also been going on in

2 another apparently distinct area and the importance of,

3 as it were, reading across or looking across between the

4 two chronologies.

5 Now, that takes me to a point that was a feature of

6 a good deal of the evidence, which is this idea of

7 looking out, looking across the board. And in my

8 submission, a full and complete understanding of the

9 evidence and of the issues here cannot come by

10 approaching each topic in its own silo, to use B542's

11 term. That may be a useful way of looking at the

12 particular evidence under a particular heading, but it

13 can't, in my submission, be the only way. I stress that

14 at this early stage because, as you will have observed,

15 one of the key questions to be considered in relation to

16 a number of the issues is whether the relevant

17 individuals or organisations failed to look up, to look

18 across, whether they approached questions in too narrow

19 or confined a way, whether they were unwilling or unable

20 to adapt or to adopt processes or procedures to deal

21 with the unusual or the unexpected, whether they were

22 able, in short, to take the broader view. And, of

23 course, in assessing that, it is vital that you

24 yourselves are able to see the full picture, whilst

25 remaining aware, of course, that you have the luxury of




1 considering all of the material gathered together by the

2 Inquiry for these hearings in a way that was simply not

3 possible for any of the relevant individuals at the

4 time.

5 Sir, that takes me to the first of some general

6 observations, which I would like to set out for you now.

7 In my opening submissions, on Day 1, between

8 pages 107 and 110, I set out some general principles

9 which I submitted you should bear in mind in considering

10 the evidence and I venture to repeat them now that you

11 have heard the evidence, because I would suggest they

12 are as important at this point as they were then.

13 You will recall, I hope, that I grouped them

14 together under the general heading of "Context", and the

15 first point I made was that it is at all times necessary

16 to see the events on which we have been concentrating

17 our attention so intensively during these hearings in

18 a proper perspective, and not to make the mistake of

19 thinking that they were the only events of any

20 importance taking place in Northern Ireland at the time.

21 You need to remember, therefore, and to be aware of

22 the wider picture and to be mindful too that many of the

23 witnesses from whom you have heard had a raft of other

24 issues to deal with day in, day out, some or most of

25 which they may reasonably have regarded as more




1 significant, more important, than those concerning

2 Rosemary Nelson.

3 For example, you have now heard from a number of

4 witnesses who have been keen to stress to you -- and

5 this is police witnesses, but also NIO officials and

6 others -- they have been keen to stress to you, as

7 I say, in at least some cases that there was a very wide

8 range of important issues on their desks at least during

9 these particular years, which, as you have heard, was

10 a time of great change in Northern Ireland. Indeed, you

11 have heard from witnesses who were very closely involved

12 in the political, the security, changes which came about

13 during that period.

14 Of course, another way of putting that is to say

15 beware of hindsight, of the clear vision which comes

16 with knowledge of subsequent events, and you will,

17 I know, want to remind yourselves regularly that those

18 dealing on the ground with these issues didn't know what

19 was to come and didn't have the advantages that you

20 enjoy as a result of the Inquiry's work.

21 Thus, you will be careful, I know, before assuming

22 that officials or others were able, as you are, to look

23 beyond what was known in their particular part of the

24 landscape.

25 However, that is not to say, of course, that you




1 should meekly accept tunnel or blinkered vision, far

2 from it, but it is important to distinguish between what

3 reasonably could have been known or understood or

4 appreciated, and what is by contrast the product of

5 industrious digging by our team, bringing together

6 documentation and evidence from a wider range of sources

7 than would have been possible or available to anyone at

8 the time.

9 Now, that is an important caveat, in my submission,

10 but I am not seeking to persuade you that you should

11 accept or endorse the evidence of witnesses who have

12 sought to give you the impression that there was no

13 point at which the issues concerning Rosemary Nelson

14 came on to their radar or were considered worthy of

15 their perhaps lofty attention.

16 You will, I know, be on your guard against the line

17 of argument by which it is sought to reduce her and the

18 concerns about her to the entirely pedestrian or

19 everyday, for that would be equally misguided, I would

20 suggest. Indeed, and in general, attempts to dismiss

21 her situation and to characterise her experience as

22 usual or normal or nothing out of the ordinary should,

23 in my submission, be treated with considerable

24 scepticism. There was, in truth, nothing remotely usual

25 or normal about her experience and no amount of




1 statistical analysis or context twisting can disguise

2 that.

3 As we will see when we look at some of the evidence

4 in more detail, at the time her situation was recognised

5 by those charged with dealing with it, who were equipped

6 with insight and intelligence, as unusual and difficult,

7 as presenting considerable challenges to them and to the

8 systems under and in which they operated.

9 There was, put simply, no other defence lawyer about

10 whose safety concerns were so publicly and repeatedly

11 raised in a comparable way, namely over a period of two

12 years, at the end of which she was murdered in

13 a dreadful fulfilment of the concerns which had been so

14 expressed.

15 It is, of course, sadly true that other lawyers,

16 both Catholic and Protestant, were murdered in the long

17 years of sectarian hatred which have so blighted

18 Northern Ireland. And you will recall reference to them

19 in the NIO's written submissions and in the oral

20 submissions of both Mr Donaldson and Mr Harvey.

21 But you will also have noted that no one has sought

22 to persuade you that those terrible murders had been

23 preceded, as Rosemary Nelson's had been, by years during

24 which concerns and warnings had been expressed to the

25 effect that what in time befell her would come to pass.




1 And you will also have noted, I'm sure, Mr Harvey's oral

2 submissions on this -- Day 127, page 22 -- that the

3 attempt to underplay her situation and to reclaim it as

4 run-of-the-mill should be resisted: she was not in the

5 same position as the hundreds and thousands to which

6 reference was made.

7 It is, in my submission, no answer to the difficult

8 and uncomfortable questions raised during the course of

9 the Inquiry to belittle or to demean her particular

10 position or to underplay what happened to her. That is,

11 I would suggest, as dangerous as the tendency, against

12 which I also warned you, of failing to see her and what

13 happened to her in a fair and proper perspective by

14 exaggerating her importance in the changing and complex

15 political and security context of the time.

16 Now, sir, it is to that topic that I turn next.

17 Sir, you may remember that in introducing this topic in

18 my opening submissions, I made a connection between the

19 independence of the Inquiry and this topic of context.

20 The point I made was that one of the ways in which your

21 independence and that of the team working for you had

22 been underlined was by the fact that we are not local,

23 if I can put it that way. Your lives and careers have

24 been elsewhere and the same is true of those of us who

25 have worked on your behalf.




1 The suggestion I made was this enabled you to

2 approach your work in a truly independent way, by which

3 I meant not just independent of Government, of the NIO,

4 which is the sponsoring department of the Inquiry, but

5 perhaps more importantly without fixed views, without

6 preconceptions, which fresh eyes and fresh minds.

7 However, as I also pointed out that it was vital

8 that those of us engaged in the Inquiry who were not

9 local should do what we could to ensure that we became

10 familiar with the political and security situation here

11 which formed the background to Rosemary Nelson's life

12 and work, and particularly with those aspects of the

13 situation with which she had particular contact or

14 engagement or which may have played a part in what

15 happened to her in the last years of her life.

16 In short, my submission was that, as outsiders, it,

17 as it were, behoved us to listen and to learn so that

18 the issues could be considered with the benefit of

19 a sufficient knowledge of the background to the events

20 which took place. And to that end, you will remember,

21 we prepared a number of documents which are in the

22 Inquiry bundle in file 901.

23 There was a historical narrative tracing

24 developments between November 1987 and July 1999.

25 That's RNI-901-001 (displayed). There was a chronology




1 into which, in the electronic version, you remember we

2 embedded various links to the CAIN website where the

3 original documents are to be found. There was

4 a Drumcree chronology -- that's RNI-901-041 (displayed),

5 that took the Drumcree events from 1995 to 1999, and

6 finally there was a specific chronology, RNI-934-041

7 (displayed), of the political negotiations, the

8 proximity talks, the high level negotiations concerning

9 Drumcree.

10 Those were, as it were, the first products of our

11 homework, of the work that we did to ensure that this

12 context was understood as a background to the

13 consideration of the evidence.

14 Getting back to the topic of chronologies, those

15 chronologies, as it were, sit behind the specific topic

16 chronologies that I mentioned earlier, which trace the

17 development of events in Rosemary Nelson's life and in

18 relation to her. And, again, I would suggest that it is

19 important to look across, in other words, to mark the

20 time in the chronology of events in Rosemary Nelson's

21 life and in what happened to her, by keeping in mind

22 these broader chronologies of the political and security

23 situation.

24 Sir, you will remember that I took you through those

25 documents on the first two days of my opening and came




1 back to Drumcree later when we looked at the evidence

2 about that, and that included, if you remember, looking

3 at the Cabinet Office material concerning the high level

4 political negotiations in file 308. In addition, in the

5 opening, I took you through what I'm going to call the

6 policing chronology or context, because, of course, this

7 was a time, as you have heard from number of witnesses,

8 of great changes in policing in Northern Ireland -- that

9 was on Day 2 again -- and then in introducing the Part 3

10 issues on Day 11.

11 Now, returning to the documents we prepared, as

12 I say, they were prepared by us as non-specialist

13 outsiders. And conscious of that, I confess that

14 I anticipated something of a blizzard of corrections and

15 amendments to be suggested to us from those with a much

16 greater degree of local knowledge. In fact, it looks as

17 though our homework received reasonable marks, because

18 no such amendments or variations were suggested, as far

19 as I'm aware, at all. And so I remind you of the

20 documents as something which appear, at least by

21 silence, to have been approved or endorsed in that way

22 and which, in my submission, will be useful to you in

23 considering the evidence.

24 Now, this theme having been established in the

25 opening, as you will recall, in the witness evidence




1 a number of the witnesses who had parts to play at the

2 time in these great events gave evidence about it, for

3 example -- and in no particular order --

4 Christine Collins, Stephen Leach and John Steele from

5 the NIO and, of course, Sir Ronnie Flanagan and then

6 Mr Kinkaid from the RUC side. You will remember, for

7 example, Mr Kinkaid's statement and its Appendix C,

8 which dealt specifically with this, he having been at

9 the top of the force when further changes came to be

10 made, of course, after the murder of Rosemary Nelson.

11 It would appear from the various submissions the

12 Full Participants have put in that there is general

13 agreement as to the importance of context in assessing

14 the issues that you have to consider.

15 Now, for all of those reasons, I'm not going to go

16 over any of that material again, but I will from time to

17 time remind you of aspects of it, and you will see in

18 our document various passages of the evidence which

19 touched on that topic.

20 But if there is a theme which emerges from all of

21 this material to be stressed at this stage, it is

22 perhaps that the period with which we are concerned was

23 a time of transition, a period which was far brighter

24 than the bleakest years of the Troubles, but some

25 considerable way short of the situation as it is today.




1 It was a time when the business of adapting to the

2 possibility of a new order in Northern Ireland,

3 certainly in political, policing and security terms, was

4 underway, in which the structures which would be

5 required to support that new order were being worked on,

6 were being put together, but all of that in

7 circumstances where nothing could be banked on, nothing

8 could be absolutely relied upon, the changes were not

9 guaranteed.

10 So to use a somewhat crude analogy, everyone had to

11 prepare for peace whilst remaining on war footing. And

12 this business of change must, you may think, have been

13 unsettling for many, as the old ways of doing things

14 were unravelled or at least modified, even if gradually,

15 and new ways, new approaches, had to be learned despite

16 the fact, as I say, that nothing was certain. And some

17 of those old ways of doing things, those ways of

18 operating, must, you may think, have been hard to let

19 go. It must have been hard for some to adjust to new

20 ways, not least because of this all-pervading

21 uncertainty, making this, as witnesses put it, an uneasy

22 time, neither one thing nor the other in terms of

23 progress.

24 Can I just remind you of a passage of the evidence

25 of Christine Collins in this regard, and I'm going to




1 try and get it up on the screen. That's Day 60,

2 page 63. Right. The section begins at the bottom of

3 the page, line 24 where I say:

4 "Just returning to the point we were discussing

5 earlier about the policing conditions, in other words,

6 the operational conditions, presumably the point here to

7 bear in mind is that despite the changes that were

8 taking place on the political front, many, if not all of

9 the difficulties of operational policing in

10 Northern Ireland remained, because all the conflict and

11 the sectarian nature that you referred to earlier

12 remained?

13 "Answer: Yes, and I think the added dimension to

14 that was it was the same, only different.

15 "Answer: Yes.

16 "Question: Because whilst you did have continuing

17 the threat of car bombs and other terrorist attacks from

18 dissident elements principally, you also had new public

19 order dimensions on top of that?

20 "Answer: Yes.

21 "Question: So it wasn't as if you were negotiating

22 in the midst of the sort of clear-cut hot terrorism of

23 the early 1990s when you actually couldn't have

24 negotiated. You had got into a kind of uneasy period,

25 but to say it was peace wasn't true. It was a very




1 uneasy period and the police had to respond to that, had

2 to be both on guard against terrorism, on guard trying

3 to deal with public order in ways that wouldn't disrupt

4 the political process, and at the same time try and gear

5 themselves up, hopefully, for the next stage of a more

6 settled future. So there were actually some new

7 challenges, in a sense, which were thrown up by this

8 transitional phase?

9 "Answer: Yes. I mean it wasn't as if terrorism

10 dropped off and instead you just had public order."

11 So far as that is concerned, you may think that that

12 is a very useful summary of this -- as Christine Collins

13 put it -- uneasy period.

14 Now, returning to this question of context, my broad

15 submission, therefore, is that you should continue to be

16 aware of the need to see the events which you have been

17 considering in such detail in their proper place. And

18 that involves a recognition of the limits of our

19 experience and, I hope, that of a willingness at least

20 to learn in that regard has been demonstrated in the

21 documents which have been prepared and, indeed, the

22 importance accorded to those topics during the hearings

23 and in particular during the evidence.

24 However, as with the question of perspective, there

25 are here some siren voices, if I can put it that way,




1 which I would urge you to resist. And for

2 simplicity's sake, I'm going to give them labels. The

3 first is the call heard at varying degrees of volume

4 throughout the hearings, which I'm going to label "there

5 is no context but my context", by which you are urged to

6 accept a very particular version of the recent history

7 of this place and of the setting in which

8 Rosemary Nelson's situation is to be viewed.

9 I'm sure you don't need me to point out the

10 importance for you to have the whole picture in your

11 mind, rather than any partial version of it.

12 The second, which is closely related but distinct,

13 I'm going to label the "you had to be there" or rather,

14 "you had to be here" call. Now, this has featured

15 during the hearings and in some of the evidence from

16 time to time and it is, in short, an argument which

17 seeks to suggest that unless you were here in

18 Northern Ireland experiencing the events as they

19 happened, you are in no position to come to a view or to

20 assess them properly.

21 This is, in my submission, a call which should be

22 very firmly resisted indeed, and taken to its extreme,

23 of course, it would entirely undermine the Inquiry. If

24 it were true in any context -- namely that there was

25 need for personal experience in order to assess or judge




1 matters -- then, of course, the entire justice system

2 would come very rapidly to an end, if one thinks of all

3 the trials involving very, very complicated questions of

4 medical negligence, City fraud, construction, shipping,

5 et cetera, in which none of the relevant judges or

6 tribunals have any direct personal experience whatever.

7 But it is particularly important here because of the

8 point which has been made on a number of occasions in

9 the hearings, that too many people have passed judgment

10 on matters in Northern Ireland on the basis of what they

11 have seen from their hotels or on their very brief

12 visits. And I won't remind you of specific examples of

13 that, but you will, I'm sure, recall various stages of

14 the hearing where that point has been made to you.

15 Now, there are, of course, many answers to this

16 particular contention and, indeed, in demonstrating

17 where it might lead, some of them are immediately

18 suggested. But it is particularly important to note

19 that the recent history of this place is in fact replete

20 with examples of individuals who did not grow up here,

21 who did not experience at first hand events as they

22 played out here, but whose contributions to the

23 improvements which have taken place here over the last

24 decades has been very significant.

25 In short, sir, my submission is this: that there is




1 no reason at all why individuals with the wide

2 experience of life and of work which you have, and with

3 access to the range and depth of information about this

4 place which you have, cannot come to conclusions about

5 events which took place here. Indeed, I would suggest

6 that there is every reason to think that your ability to

7 do so dispassionately, fairly and with an open mind is

8 significantly bolstered and underscored by the very fact

9 that you do come to the events afresh, without

10 preconceptions or long-held views.

11 Context remains a matter to be taken into account.

12 It should not be seen to be in any sense an obstacle to

13 you or for you in the course of your work.

14 Now, sir, what I would like to do now is to turn to

15 one or two points which have been made in the course of

16 the submissions about the Inquiry itself. Now, the

17 first is some submissions made to you orally by

18 Mr Donaldson concerning the circumstances in which the

19 Inquiry was set up, and this is on Day 125, between

20 page 1 and page 16. His point to you, as I understood

21 it, was that the Inquiry came into existence as a result

22 of the Government giving in to public clamour and to ill

23 founded allegations which began to be made immediately

24 after the murder, namely of security force collusion.

25 And you will remember, I think, that he cited a number




1 of passages from the evidence as examples of this kind

2 of claim.

3 Now, he did at one point assure you that he didn't

4 blame the Inquiry for what had happened. In my

5 submission, given that the Inquiry was established, that

6 you were appointed to conduct it by the Secretary of

7 State for Northern Ireland under your own Terms of

8 Reference, it is hard to understand the relevance of

9 those particular submissions.

10 No time at the hearings has been taken up by

11 considering why it was in particular that the Inquiry

12 was established, what may or may not have been in the

13 minds of ministers. That is not a matter within your

14 Terms of Reference, nor is it a matter, unsurprisingly,

15 on your List of Issues.

16 Now, the next matter I want to touch on briefly is

17 a point raised by the NIO in their written submissions

18 in chapter 2. This concerns the interpretation and

19 meaning of the Terms of Reference themselves, and what

20 I would like to do, please, is to have up on the screen

21 RNI-921-006 (displayed).

22 In this chapter, an argument is put forward to you,

23 founded on citations from the Salmon Report and from two

24 Irish decisions in a case about the former Taoiseach,

25 Mr Haughey. And, sir, again, I'm not going to spend




1 long on this for reasons which I hope will become clear,

2 but the point being made was that there is some

3 ambiguity or uncertainty in the Terms of Reference.

4 Now, sir, the chapter merits careful study and you

5 will no doubt give it attention in due course, but in

6 very simple and, I hope, not too disrespectful terms,

7 can I say that this, in forensic terms -- this

8 argument -- is a little like the man who goes into the

9 empty pub and starts a fight. In other words, in order

10 to provoke some form of dispute, the NIO have to start

11 an argument with themselves.

12 Now, so far as the Irish cases are concerned, we

13 needn't look at them now, but clearly their context is

14 obviously distinguishable. There is a written

15 constitution, the enquiries into Mr Haughey's business

16 dealings were established by resolution of the

17 legislature and, indeed, in the Supreme Court, the

18 constitutionality of the entire exercise was in issue.

19 Secondly, and more importantly, the cases concern Terms

20 of Reference which were -- and I quote from the first

21 instance decision -- "undoubtedly ambiguous".

22 Indeed, the judge spent several pages of his

23 judgment analysing them, choosing between various

24 possible interpretations and seeking to resolve internal

25 inconsistencies, observing as he did so that counsel for




1 the state had struggled to do so. These were the Terms

2 of Reference which formed the factual background to it.

3 The next point was that the Tribunal had refused to

4 interpret or even express a view on them, and so the

5 judge, as he put it, reluctantly decided to do so. He

6 said, for example, about the Tribunal's obligation --

7 this is page 22 of the report:

8 "I have already touched on one important matter in

9 this connection and that is the obligation on the part

10 of the Tribunal to explain the Terms of Reference on at

11 least a provisional basis if fair procedures require

12 that to be done."

13 And he later came back to the topic saying that the

14 Tribunal ought to have written to the former Taoiseach

15 and the relevant members of his familiar:

16 "... clarifying any serious ambiguity in the Terms

17 of Reference."

18 Now, what actually happened in the Supreme Court is

19 that they determined that it wasn't their job or,

20 indeed, the job of the judge below, to interpret the

21 Terms of Reference at all, and they declined to do so,

22 disagreeing with him and held that the interpretation of

23 the Terms of Reference was a matter for the Tribunal.

24 And key to that -- and this is paragraph 177 of the

25 Supreme Court's judgment, which you can see quoted at




1 RNI-921-008 (displayed) at the top -- is the phrase

2 between the commas in the fourth line about the Terms of

3 Reference:

4 "... assuming that they are capable of more than one

5 interpretation ..."

6 Now, the striking feature, therefore, of these

7 submissions by the NIO, even assuming that these Irish

8 cases are properly applicable to the situation and not

9 obviously distinguishable, is that nowhere, in the

10 submission, is, it is suggested in terms, that your

11 Terms of Reference are in fact ambiguous; thus

12 undermining, in my submission, the entire argument.

13 Indeed, what happens is that they set out what they

14 submit is the plain natural reading of the Terms of

15 Reference, and then suggest off their own bat -- this is

16 where my analogy of the pub came in -- that there is

17 another possible reading. They don't say that it is

18 a reading advanced by anyone else or, indeed, by you,

19 but they simply refer to the List of Issues -- 2.5 at

20 RNI-921-009 (displayed) -- and say:

21 "The Inquiry's List of Issues perhaps suggests that

22 the Inquiry may consider, or structure, its findings by

23 reference to this alternative approach ..."

24 So, sir, in my submission, that falls a long way

25 short of the genuine ambiguity which was fundamental to




1 the Irish case, and founded not actually on the Terms of

2 Reference at all, but on something that they think they

3 identify in the List of Issues.

4 Now, it has to be said in addition that if this was

5 an obvious second reading or alternative reading, it has

6 lain hidden, including, it seems, hidden from the NIO

7 and their solicitors and counsel, for a very long time

8 indeed. The Terms of Reference were promulgated by the

9 Secretary of State for Northern Ireland

10 in November 2004. They were published, the List of

11 Issues, in draft form in April 2005 and finalised in May

12 that year. More importantly perhaps, all of the NIO's

13 witnesses were called and questioned on behalf of the

14 Inquiry in the period ending in December last year, and

15 yet the point, as you can see from the very, very small

16 print which comes at the bottom of RNI-921-006

17 (displayed), was first raised in January this year.

18 Now, sir, I'm not going to say anything more about

19 that at this stage. If you find yourselves troubled by

20 ambiguity at a later stage, then you will no doubt want

21 to look at this chapter and perhaps at that point

22 consider what I have said to you about it.

23 Sir, can I now turn to some general submissions

24 about approaches to the evidence? In the course of the

25 written and, I think more obviously, oral submissions




1 made to you, a number of submissions were made under

2 a heading that, again, I hope not unfairly, I'm going to

3 call the "you cannot" heading. That group includes some

4 close cousins, such as "it would be wrong or improper",

5 et cetera, "for you to do X and Y".

6 Now, you may recall that these sorts of submissions

7 came up in parts of the case where one could perhaps

8 detect a certain level of forensic discomfort relating

9 to the unfamiliar process and approach of the Inquiry,

10 a sort of adversarial yearning. And their purpose

11 seemed usually to convince you that it would be wrong or

12 impossible to reach a conclusion on a matter of obvious

13 interest, or that in order properly to reach such

14 a conclusion, you should have first done a large number

15 of other things which, most unfortunately, you had

16 failed to do.

17 So, for example, you will remember Mr Donaldson

18 warning you about perception, the unruly horse, and

19 urging you to stick to the facts, and Mr McCollum

20 telling you -- and this is Day 124, pages 6 to 8 -- that

21 in relation to the question of the alleged widespread

22 treatment or denegration of defence solicitors, his

23 point was the impossibility of determining anything

24 without determining everything. And, sir, it was at

25 that point that you made your iceberg intervention.




1 Now, of course, this is a familiar stance by

2 advocates in adversarial litigation. They tend to

3 suggest that in order to establish X, evidential steps 1

4 to 400, let's say, have to be taken and that, given that

5 steps 205 to 235 have not been taken, it would not be

6 right and the court cannot conclude that X is

7 established.

8 Now, I need hardly say that tradition decrees that

9 this submission tends to be made after the moment has

10 passed at which it is in fact possible to establish the

11 missing 205 to 235. Now, of course, you will consider

12 these submissions, as you will, I know, consider all the

13 submissions made to you about the evidence, but let me

14 urge you, please, to be wary of this particular "you

15 can't" type of submission.

16 I'm not suggesting that every time an advocate has

17 said to you "you cannot", you should respond Obama-like

18 with the phrase "yes, we can", tempting though that

19 might be in some cases. However, if on consideration it

20 appears that the effect of acceding to such a submission

21 would be to prevent you from reaching conclusions or

22 determining issues before you, or from fulfilling your

23 Terms of Reference, then I would urge you to be bold.

24 This is not -- I repeat for what may be the last

25 time -- a case. You are not bound by the Civil




1 Procedure Rules, nor by the rules applicable in the

2 courts in Northern Ireland. Your obligation is to

3 discharge the duty laid upon you by the Secretary of

4 State, and it is a matter for you how you go about the

5 task. You are masters of your own procedure and the law

6 gives you a substantial margin of appreciation, to

7 use Lord Justice Girvan's term, in the way in which you

8 go about your work.

9 That is something, I would submit, to be borne in

10 mind when considering other contentions which were

11 pressed on, for example, those relating to the standard

12 or burden of proof to the correct approach to causation

13 or to the concept of corroboration in criminal or other

14 cases, all of which points were touched on in the course

15 of the submissions and the law cited.

16 Now, those concepts and the case law concerning

17 them -- which is accrued over decades, or much longer in

18 some cases -- those are all, of course, reassuringly

19 familiar to lawyers and one can understand perhaps why

20 reference to them has been made. But they are, I would

21 suggest, of no direct relevance or applicability in this

22 wholly different context.

23 Now, sir, finally in relation to the general

24 submissions on the evidence, can I turn to an argument

25 made by the NIO in chapter 3 of their written




1 submissions in relation to Salmon letters. I don't

2 think we need to put it on the screen, but they are

3 RNI-921-011 and RNI-921-012.

4 Now, here, in reliance on the Inquiry's own

5 procedures, the NIO submits that because none of their

6 witnesses received a Salmon letter before beginning

7 their evidence:

8 "... it would be unfair and unreasonable if the

9 Inquiry were to criticise the conduct of any such

10 person."

11 That's paragraph 3.3. Now, the first thing to be

12 said plainly is that the situation in which this

13 argument would have to be addressed has not yet arisen,

14 and I cannot and do not assume that it will arise. So

15 in that sense, it is premature and what I have to say is

16 of limited value. However, may I just make a few

17 observations about it, in the hope that if it does arise

18 they might assist?

19 First, the Inquiry's procedures relating to Salmon

20 letters were just one of the ways in which the Inquiry

21 sought to ensure that witnesses were treated fairly.

22 Others included the fact that they were interviewed by

23 the Inquiry's solicitors. Before interview, they were

24 provided with the relevant material to be gone over

25 during the interview, and some witnesses, I know, in




1 addition, were given summaries of the points to be

2 covered in interview before the interview took place.

3 They were then of course, as you know, provided with

4 their draft statements and had the opportunity, usually

5 in consultation with their lawyers, to review, to amend,

6 the statements before signing them.

7 In addition, of course, for those witnesses giving

8 evidence at the hearings, many received further

9 documents which were drawn to their attention by the

10 Inquiry so that they were able to consider them before

11 they gave the evidence on the basis that they might be

12 asked questions about them during the hearings.

13 So, in my submission, there were a number of

14 safeguards for witnesses in that regime, with the aim of

15 ensuring that they were fully aware of the matters

16 likely to be covered during their questioning at the

17 hearing.

18 That regime took up a great deal of time and effort

19 and it appears, so far as I can judge at any rate, to

20 have been worthwhile and effective, because the number

21 of complaints certainly brought to my attention about

22 witnesses being taken by surprise has been very limited.

23 In fact, I can't at the moment recall any.

24 However, as I have said before, these hearings are

25 not the end of your work and you have, in addition to




1 those motions, already made it clear that where, having

2 considered all of the submissions and the totality of

3 the evidence, you are minded to make criticisms of any

4 individual or organisation in your report, you intend to

5 provide an opportunity to that individual or

6 organisation to comment in writing on the criticism.

7 And those will then be taken into account before you

8 reach a final view on whether or not the criticism

9 should be made. Therefore, only when that exercise has

10 been completed will the report be finalised and then

11 submitted to the Secretary of State.

12 Now, sir, you will have noted that the PSNI's

13 written submissions on this point -- and, again, for the

14 reference it is 1.21 -- address this further procedural

15 safeguard. Shall we have it up? It's at RNI-920-012

16 (displayed). Do you see at the bottom of the page they

17 deal with this further safeguard that I have just

18 mentioned? And they do acknowledge its potential

19 impact, submitting in what is, I would suggest, perhaps

20 a more measured way that the requirements of fairness:

21 "... would arguably not be fulfilled by giving the

22 individual a later opportunity to make written comment

23 in circumstances where the criticism could reasonably

24 have been foreseen before the witness gave his or her

25 evidence."




1 Now, that is an important qualification in relation

2 to the position here, and it is a reminder, I would

3 suggest, of two important and final points to make. The

4 first is the need to approach all this in the round, to

5 consider not just one measure but all of the measures

6 which are designed to ensure fairness to witnesses.

7 And secondly, of the obvious point, that everything

8 will depend on the facts of the particular witness's

9 case should the situation ever arise. And, sir, I'm not

10 going to say anything more about this at this point and

11 I should certainly not be taken to accept or concede

12 that the qualification proposed by the PSNI, which

13 I have just mentioned, is correct.

14 Sir, I'm going to move on to another topic. Would

15 that be a convenient moment?

16 THE CHAIRMAN: Yes, we will break off until quarter to 12.

17 (11.30 am)

18 (Short break)

19 (11.47 am)

20 THE CHAIRMAN: Yes, Mr Phillips?

21 MR PHILLIPS: Sir, can I finish the submissions I'm making

22 on the evidence before turning to the first of the

23 chapters, with a few further points on witnesses?

24 The first takes us back to the procedure you have

25 adopted. At an early stage, you indicated that you




1 would only wish to hear evidence from a proportion of

2 the witnesses from whom the Inquiry obtained statements.

3 You will have noted that in some of the Full

4 Participants' submissions, suggestions are made to the

5 effect that you should have required X or Y to give

6 evidence, and often that's followed up by the argument

7 that you can't be sure of A, B or C because you didn't

8 hear from X or Y. This is, therefore, a relative, as it

9 were, of the sorts of contentions I was mentioning

10 earlier under the "you cannot" heading.

11 Of course, the issue of who should give evidence to

12 you on areas of interest to you is pre-eminently

13 a matter for you to determine. You have heard a huge

14 amount of evidence and, as I said earlier, are fully

15 conversant with all of the issues and there is no

16 substance, in my submission, in a suggestion that you

17 are in any way prevented from arriving at reasonable

18 conclusions on the material that you have heard.

19 Indeed, during the hearings you showed at points

20 that you were prepared to change your decisions, to make

21 changes in the witness list, as it were, as the evidence

22 unfolded and developed, the key point being, of course,

23 that you remained in control of the process. And in my

24 submission, when taking that evidence into account and

25 also the evidence from the very large number of




1 witnesses whom you did not hear from in person, in that

2 way, rather than by focusing on one part or the other

3 part, as it were, of the witness population, you can

4 reach a full understanding, a full appreciation of

5 a particular issue, so that if, for instance, there are

6 ten witness statements on a topic but only five of the

7 witnesses have been called to give evidence, that

8 doesn't mean that the five statements of those

9 witnesses, the remaining witnesses, are to be

10 disregarded. However, you will, I know, bear in mind

11 the fact that the witnesses who did not come to give

12 evidence did not have their evidence tested on your

13 behalf by counsel at the hearing.

14 Now, there were further submissions made to you, you

15 will recall, about witnesses who made statements, were

16 asked to attend and give evidence but declined to do so.

17 Now, I will touch on examples of this as we go through

18 the evidence, but at the outset let me say that my

19 submission here is that it would be wrong in principle

20 to disregard the statements which they have provided to

21 you at your request and which have been obtained from

22 them by Eversheds or the other Inquiry solicitors acting

23 on your behalf.

24 Instead, in my submission, you should take into

25 account their written evidence, but you should also be




1 mindful of their refusal to come before you so that

2 their evidence might be tested. And that may -- no

3 doubt will -- have effect on the weight that you feel

4 able to attach to that evidence.

5 Now, as I say, I will look at some examples of this

6 in a moment, but can I just take an example of the broad

7 way that it has been put in the submissions, and this is

8 the PSNI at 1.12 at RNI-920-009 (displayed). It is the

9 last sentence of 1.12:

10 "The Inquiry should attach no weight whatsoever ..."

11 Et cetera. And my submission, as I say, is that it

12 is simply too broad. The right approach, I would

13 suggest, is to take into account all of the material

14 that has been gathered in whilst being conscious and

15 alert to the distinctions between the types of material

16 as you assess it.

17 THE CHAIRMAN: And that would include, would it not,

18 Mr Phillips, written evidence or assertions of

19 individuals made not to Eversheds, not to the Inquiry,

20 but to third parties and other organisations?

21 MR PHILLIPS: Yes. There are a number of statements, for

22 example, given to the Murder Investigation Team. There

23 are statements given to the Pat Finucane Centre,

24 et cetera. You will want, I'm sure, to consider all of

25 the material, rather than to shut your eyes in relation




1 to part of it.

2 Now, sir, on this topic, the final thing I wanted to

3 say is that I'm not intending to make submissions on the

4 credibility of those witnesses who came to give

5 evidence, because that is obviously a matter for you to

6 assess on the basis of what you have seen and heard for

7 yourselves.

8 Now, sir, with that rather long introduction, can we

9 look, please, at the first chapter, chapter 1. I think

10 we will be able to get this on the screen, if I say

11 "chapter 1/1" (displayed). There we are.

12 There are, as I said, nine chapters, of which this

13 is the first, and it is a short chapter but, in my

14 submission, it is appropriate that we should begin with

15 Rosemary Nelson herself.

16 Over the hearings we have looked at a huge range of

17 topics, some of which are complicated or even abstruse,

18 but at the centre of the Inquiry there is and has been

19 at all times a human being and the uncomplicated and

20 simple fact that she was murdered.

21 So we start with Rosemary Nelson, and here we

22 address two aspects in particular. As it says there:

23 personality and practice. And we do it in a very

24 particular way, by looking at some, by no means all, of

25 the evidence. And, again, you have heard now a huge




1 amount of evidence from all sorts of witnesses about

2 her, much comment, much opinion, has been expressed, and

3 this chapter focuses not on people who perhaps didn't

4 know her very well, but on those who knew her perhaps

5 best of all; in other words, her family, her friends and

6 those who worked with her and for her in her practice.

7 Now, there are a number of points or issues for you

8 to consider, which will involve you reflecting on her

9 personality: would she have said something; would she

10 have behaved in a particular way. Does the evidence

11 that you have heard about it from other people make it

12 likely that X or Y event would have happened as either

13 she or, indeed, other people suggested. The question of

14 motivation, for example, has been raised four and square

15 in the submissions, motivation in relation to the making

16 of complaints. What does the evidence about her, the

17 sort of person she was, tell you about her attitude to

18 her own safety, her own security? What does it tell you

19 about her likely response to threats, as well as to

20 offers of advice or help, had any been made.?

21 But the truth is, as I have hinted, that a large

22 proportion of the witnesses who have given evidence

23 about her, expressed views about her, did not in fact

24 know her very well. They may have spoken of her,

25 whether in a complimentary or a critical way, more




1 because of what they had heard about her or read about

2 her than because of what they actually knew for

3 themselves. And that is why we have chosen to limit the

4 scope of this chapter, for the most part at any rate, to

5 the witnesses.

6 You will see their names set out on this page and

7 the next page, if we could turn over the page, please.

8 And you will remember all the witnesses we had at the

9 outset of the hearing, some of whom were called to give

10 evidence to you, who worked for her over the years and,

11 I should also mention -- but I'm not going to attempt to

12 show it to you -- that there is a chart, which we have

13 updated since the hearings began -- for the reference it

14 is RNI-934-001 -- which shows you all of the individuals

15 who worked for her over the years, from a large number

16 of whom you have seen evidence or heard evidence, and

17 what their dates were and how they, therefore, fitted

18 into particularly the chronology of the years with which

19 you are concerned.

20 Now, sir, if we could just turn over to 1.3, as with

21 all of the chapters, as I said at the outset, I'm not

22 going to take you through it in any detail, nor attempt

23 to do justice to all the references and citations from

24 the evidence which it, and all the other chapters

25 indeed, contains. But can I just highlight a few of the




1 points that come out here?

2 First of all, in terms of her personality, you have

3 heard evidence, perhaps most importantly, from her

4 siblings, from two of her sisters and her brother Eunan

5 who also gave evidence to you in the chamber, you will

6 remember. Their account of the sort of person that she

7 was was consistent. Her sister Caitlin described her as

8 a very generous and fun-loving person and Bernadette

9 said that she was extremely relaxed, easy going and

10 fun-loving. And as far as Paul Nelson is concerned,

11 there was an interesting passage of his evidence which

12 we have at (displayed) -- so that's chapter 1,

13 page 5 -- you may remember this -- where he said that:

14 "She had a gift for being with you for five minutes,

15 but giving you the impression she had spent the whole

16 week thinking about your case. She had this knack of

17 making you think you were the only concern in her mind

18 and had been for the last month."

19 And the point is then made -- and you may think it

20 is an obvious one -- that her remarkable success in

21 building up her practice from scratch in Lurgan as

22 a sole practitioner owed a great deal to this particular

23 aspect of her personality.

24 Brian Leeson, who worked for her, said in his

25 evidence:




1 "Her popularity, I think, sprung from the fact that

2 she was able to converse with the regular Joe and they

3 felt at ease with her and she could empathise with them

4 greatly."

5 Now, in terms of what these witnesses observed,

6 there was a theme in the evidence where they noted that

7 in the last years of her life, she became perhaps less

8 easy going, a little more of a troubled and concerned

9 person. And, again, we have some citations for you from

10 that part of the evidence, Dara O'Hagan's evidence to

11 you at chapter 1.8, and there the impression was given

12 of somebody who was anxious, concerned and nervous.

13 This theme was also picked up, if you remember, by

14 her siblings, if we turn over the page, please, to

15 chapter 1, page 9 (displayed). There we have three

16 quotations at 24, 25 and 26 from their statements, and

17 the concern that they were expressing concerned the

18 business of drawing the line, of seeking to draw back

19 from some of the work that she had been doing, which

20 they associated with this increased trouble, increased

21 nervousness, increased anxiety.

22 Now, so far as her husband was concerned, if we go

23 over to 29 and look at an extract from Paul Nelson's

24 evidence, he, if you remember -- 1.10, this is --

25 suggested to you that in the last six months of her




1 life -- so that's from the autumn of 1998 through to the

2 time of her murder in March -- she was beginning to

3 change her approach to her work. And you will see there

4 in the middle of the paragraph:

5 "It was at least [his] perception that the pressure

6 on Rosemary seemed to be easing a bit."

7 Although, as you see, it is a qualified view. If,

8 of course, that is right, if that is what was happening,

9 then there is a bitter irony in the fact that her murder

10 came at a time not only of continuing improvements here

11 in Northern Ireland, but also at a time when she may

12 have begun to distance herself from the sorts of cases,

13 the sorts of clients, which may have had a link to her

14 murder and may have provided the motivation for the

15 killers.

16 Now, so far as her practice is concerned, what we do

17 in the section beginning at 1.13 is simply to highlight

18 the evidence on this. And I would like to repeat the

19 point which I have already made: namely, that from

20 a standing start in 1989, after a minimum of

21 post-qualification experience, she built up a very busy

22 practice as the only sole female practitioner in town,

23 in Lurgan, over the next ten years. And you will

24 remember the evidence about expansion of the firm, not

25 only in terms of the numbers of staff but also literally




1 expanding in the premises they had in William Street.

2 The evidence about the state of her practice at the

3 time of her death shows that it was thriving.

4 Seamus Collins, if you remember, is the witness who gave

5 evidence about it, because he came into the practice

6 with Mr McGrory after her murder and found that there

7 were 700 litigation files open and, in the previous

8 year, 244 files of litigation, 86 criminal injury or

9 damage claims, 108 matrimonial and family matters and

10 150 conveyancing files were opened.

11 So the busy practice continued to be busy right up

12 to the point of her murder. And as I hope those

13 statistics show, the nature of the practice, you may

14 think, on the basis of all of the evidence you have

15 heard, did not in truth change, despite the emergence of

16 a relatively small number of high profile cases, the

17 Duffy cases, the GRRC, the Hamill case and one or two

18 others.

19 Dispite all that, it remained what I think Mr Vernon

20 described as a country town practice, with a strong

21 suit, if I can put it that way, in matrimonial work and

22 in conveyancing.

23 So if in the material that we have read, one comes

24 across suggestions that Rosemary Nelson, by the time of

25 her murder, had become a human rights specialist,




1 a leading light in human rights law, those sorts of

2 suggestions have to be considered against the facts,

3 against the evidence, which has been given by all of

4 those who actually did the work, who worked for her at

5 the time. And what they tend to suggest, I would

6 submit, is that those high profile cases took a good

7 deal of her time when they were active, and you will

8 remember the evidence of those who worked alongside her

9 and, indeed, of those who were in theory doing

10 administrative or secretarial jobs who were in fact

11 running all the various conveyancing and matrimonial

12 files. But in terms of the overall profile of the

13 practice, you may think the evidence is that it didn't

14 substantially change.

15 Now, in terms of the impact on the practice of the

16 high profile cases, what we have done in this chapter is

17 identify some of the consequences. The first,

18 obviously -- and there has been a huge amount of

19 evidence on this -- the increase in her personal

20 profile, if I can put it that way; the second, the

21 increase on the pressure, time pressure, pressure of all

22 kinds on her personally, which, in terms of the office,

23 led to this reliance on the administrative/secretarial

24 staff that I have mentioned.

25 Then, so far as some of those who worked in practice




1 were concerned, with the high profile cases came

2 a rather unwelcome and, in some cases, they believed,

3 worrying, focus on security concerns, concerns about the

4 possible personal impact on them of the sorts of cases

5 that she had taken on.

6 Now, so far as other changes in the nature of the

7 practice are concerned, we deal in this chapter with

8 a topic that a number of the witnesses referred to,

9 which is with the client base. Can I ask to you look at

10 that briefly, please? That's chapter 1, page 19

11 (displayed). Here, the evidence on this topic is

12 summarised and you will see that the view both of

13 Paul Nelson and her family was that she acted for both

14 sides of the community, if I can put it in that way.

15 And there was evidence that she herself, as you

16 remember, was not political, although there is evidence

17 to the other effect as well. So far as the way that

18 developed through the ten years of her practice in

19 Lurgan is concerned, we set out the evidence in this

20 section, 1.3.5, and you will see that there is some

21 conflict here. Some witnesses maintained that the equal

22 balance, or the balance between the two sides of the

23 community, was maintained until the end of her life;

24 others suggest that the more high profile cases had the

25 effect of rather polarising the sorts of cases, the




1 sorts of clients that came through the door on

2 William Street. Sir, the final point on this that

3 I would like to stress is a point that we have included

4 here, which was a point taken up not in fact just by the

5 family, friends and those who worked with her, but in

6 particular, you may remember, by Sir Louis Blom-Cooper,

7 and this is the particular difficulties of working as

8 she did, not only as a sole practitioner, but also as

9 a female sole practitioner in this part of

10 Northern Ireland. And that's at 1.3.4, chapter 1,

11 page 17 (displayed).

12 What we remind you of there is the evidence to the

13 effect that there were very few women undertaking this

14 sort of scheduled offences, terrorist offences work in

15 Northern Ireland at the time. You heard from another

16 one, Patricia Coyle, you will remember, but what we

17 suggest here at the bottom of the page and over to 1.18,

18 is that that was one of the reasons why she was

19 conspicuous; the other being obviously her facial

20 scarring.

21 It is, you may think, not insignificant that if one

22 looks at the alleged comments made about her to her

23 clients in the holding centres, those two distinguishing

24 features -- the fact that she was a woman and the fact

25 that she had this particular appearance -- were




1 prominent amongst the alleged comments made. She stood

2 out. She stood out in the particular environment, which

3 was a predominantly male environment in which she

4 worked.

5 Sir, I'm not going to say anything more about that

6 chapter, but before turning to the first substantial

7 topic I want to cover, which is complaints, can I just

8 mention, I am afraid briefly, another important element

9 of the background? That is the evidence that you have

10 heard and the material we have gathered together and put

11 into the bundles concerning the alleged harassment or

12 intimidation of defence lawyers.

13 Now, I regret that in our written submissions we do

14 not have a chapter or even a section in which the

15 evidence is summarised for you. The family, in their

16 submissions, and chapter 4, I think it is, have

17 helpfully brought this material -- or some of it at

18 least -- to your attention. The reference is

19 RNI-925-063 (displayed).

20 It is, in my submission, important background to all

21 of the Part 1 issues concerning Rosemary Nelson, whether

22 it be complaints or the alleged threats, the threat

23 assessments, because it sets for you the particular

24 context in which Rosemary Nelson carried on her

25 practice, or rather, as I would stress again, that part




1 of it: that part of it which took her to the holding

2 centres and which involved having clients detained in

3 the holding centres.

4 So, sir, the comments I'm going to make about it are

5 very brief, really just to underline some of the big

6 points rather than to get into any of the detail.

7 The first is to remind you that, in a sense, the

8 background to all of this is the security situation in

9 Northern Ireland from the end of the 1960s/early 1970s,

10 throughout the 1970s and 1980s, into the 1990s and the

11 period with which we are concerned and, as part of the

12 Government's attempts to deal with it, the passing of

13 the various types of emergency legislation, because that

14 regime, in order to deal with the appalling terrorist

15 campaigns, established the conditions in the holding

16 centres which, with hindsight, were more or less bound

17 to create precisely the disputes and controversy about

18 which you have heard so much evidence.

19 You will remember amongst the provisions were that

20 an arrested suspect for a scheduled offence could be

21 detained, I think, for 40 hours with potential

22 extensions for five days.

23 Now, after 9/11 all of that might seem relatively

24 small beer, but it was a big change. The PACE regime,

25 sir, established in England and Wales, was suspended.




1 Lawyers were not present in interviews and, as you will

2 remember, there was no independently verifiable record

3 of any of the interviews. The key dates to remember

4 here are, I think, March 1998 when, as you have heard,

5 the silent video recording came in, and the beginning of

6 the following year, 1999, when the audio recording,

7 which was absolutely standard in England and Wales, was

8 introduced. And you have heard evidence, not least from

9 Sir Ronnie Flanagan himself, about that.

10 But those were the conditions, as I say, which, with

11 hindsight, were perfectly constructed to produce the

12 sort of bitter disputes about which you have heard.

13 So far as the broader background is concerned, the

14 material you have falls into broadly two categories.

15 The first is the reports or studies prepared over the

16 years by NGOs and others on this topic, in which,

17 typically, they would bring together individual cases on

18 an anecdotal level and draw together themes which they

19 believed to arise from them. And in terms of where all

20 that material is, it is in file 402. We have looked at

21 some of the later material, particularly that produced

22 by the British Irish Rights Watch, you will remember,

23 some of which became very important in the years with

24 which we are concerned.

25 But in terms of the chronology of this, we know that




1 concerns, complaints, of this kind were being registered

2 in the late 1980s, because you will remember it was in

3 1987 that the Irish Times Article -- that's RNI-401-002

4 (displayed) -- was produced, raising these concerns on

5 the part of lawyers. And clearly the issue was given a

6 completely new level of importance and prominence by the

7 murder of Patrick Finucane two years later in 1989. And

8 it is no coincidence, you may think, that most of the

9 reports that we have found and put in the bundles for

10 you come from the 1990s.

11 Looking forward, some of the evidence suggested, you

12 may remember, that there was rather a dip in complaints

13 of this kind at about the time of the IRA ceasefire in

14 1994, and that things never really got back to the level

15 of intensity of earlier years. And that is in itself

16 important, because although we know, not least from the

17 1998 document, "Equal protection under the law" that

18 33 lawyers signed, which is RNI-402-512 (displayed) --

19 we know that the issue did not go away. But the

20 evidence from a number of the witnesses you heard was

21 that their perception was that this problem was reducing

22 in importance in the years from the mid 1990s onwards,

23 which makes Rosemary Nelson's case distinct. It came

24 simply later in the history than the material which

25 formed the basis for most of the reporting that we have




1 seen.

2 That's the second category. I talked about the

3 reports. Clearly there is now evidence that you have

4 heard from a very large number of lawyers who were

5 practising in Northern Ireland at the time. I lost

6 count at 30. I think there are rather over 30 lawyers,

7 some of whom worked for Rosemary Nelson, others had

8 their own practices. You have heard from a number who

9 did work of this kind. I have mentioned Patricia Coyle,

10 but there were four or five others, including

11 Mr McGrory. And there were others too who were lawyers

12 practising in Northern Ireland at the time, who gave

13 evidence to you about their experience.

14 Now, so far as that is concerned, the points that

15 emerged, in my submission, are as follows: there were

16 striking similarities between the various experiences

17 which they described. The types of reported remarks

18 said to have been made to clients by interviewers fell

19 into well defined, certainly very familiar, categories:

20 adverse comments, "Your solicitor is a Provo, he is only

21 in it for the money, he has not got your interests at

22 heart", in addition, in some cases, that you may think

23 are a minority, to comments which are altogether more

24 threatening.

25 Now, the other striking feature of this evidence,




1 you may think -- and, again, I'm simplifying a very

2 substantial amount of evidence -- is that most of the

3 lawyers who gave evidence to you did not report these

4 incidents or experiences, did not make complaints, and

5 various reasons were put forward for that.

6 First, they said -- or some of them said -- that

7 they had no faith in the complaints system, that to make

8 complaints was, to use the words of one of them,

9 "a waste of time". And some explained that that was

10 because the rates of substantiation were so low, that in

11 cases of this kind it was almost invariably the client's

12 word against that of two of the officers, with no

13 independent record of what had or hadn't been said and,

14 therefore, with an inevitable result.

15 But there were other points, if you remember,

16 concerning that to make a complaint would in some way

17 expose the client, would involve the client's

18 cooperation, could involve the client, as it were,

19 sticking his or her head above the parapet.

20 And the other theme which came through strongly, you

21 may remember, was the sense that this was just part of

22 the job. It was par for the course, it was the sort of

23 thing that you had to accept and simply get on and deal

24 with if you were involved in work of this kind. And one

25 of the striking pieces of evidence that you received on




1 this, you may remember, came from Mr McKee, who gave you

2 a statement.

3 He worked for Rosemary Nelson in the early years,

4 1991 to 1995, and his statement at RNI-813-173

5 (displayed) explains how he was involved in, as it were,

6 the early stages of the Lyness case, the Colin Duffy

7 case, and he said this:

8 "It was not unusual to hear of derogatory comments

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

10 when they had been held at Gough Barracks. Solicitors

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

12 course, PACE did not apply to individuals held on

13 suspicion of terrorist offences. The police, therefore,

14 got information from detainees using whatever tactics

15 they could, including running down detainees' legal

16 representatives."

17 Then he gave various examples of comments which

18 might have been made:

19 "They would have tried anything to undermine us.

20 This was par for the course. Whilst I was at Rosemary's

21 I don't think either of us thought much of it."

22 He goes on to say in his statement that the remarks

23 were water off a duck's back:

24 "Every solicitor representing such individuals would

25 have had the same treatment."




1 Now, so far as this evidence is concerned and of

2 which this is just an example, you will, I know, want to

3 bear in mind the submission made to you by

4 Mr Donaldson -- Day 125, page 60 at lines 8 to 18 --

5 which was to the effect that this evidence that you have

6 heard was from one side of the community; it wasn't

7 a balanced survey, he said. And he relied on the fact

8 that in the vast majority of cases, no complaints

9 substantiating, as it were, the allegations being made

10 in the statements or in their evidence were made.

11 And that, of course, picking up the point I made

12 earlier on the question of complaints, is an important

13 feature and background to the issues that unfolded in

14 Rosemary Nelson's case. It was, if you remember,

15 Sir Louis Blom-Cooper's experience that both sides, as

16 it were, were complaining to each other, but not

17 speaking across the divide. So the police might express

18 to each other views about some of the lawyers, and the

19 lawyers to each other would express their experiences,

20 their views about the way the police were treating their

21 clients, but because they were not, or mostly not, using

22 the complaints system, these matters did not, if I can

23 put it this way, surface. They did not come to a head.

24 That was also the point at which the Special

25 Rapporteur came in, if you remember, where one of the




1 things he said at his press conference, which caused so

2 many alarm, before he left Northern Ireland, was to urge

3 solicitors to use the system.

4 The importance of this, as it were, complaining but

5 not registering a complaint came also from the point of

6 view of Government, because if you remember in all the

7 correspondence, the Government's position was not to

8 deny that X or Y had happened with the concomitant

9 allegation that the lawyers were lying, but rather to

10 say that what they needed to be able to do anything

11 about it was for people to make the complaints and for

12 them to be -- and this was the word, if you remember --

13 "substantiated".

14 Thus, you can see the whole thing is entirely

15 circular, because the lawyers would then say by way of

16 reposte that because of the regime in the holding

17 centres, there would never be any possibility of the

18 complaints being substantiated and that was why they

19 didn't speak across the divide, they didn't raise the

20 complaints and put them into the then ICPC system.

21 And one of the ways in which Rosemary Nelson's case

22 was significant, unusual, if not unique, as some of the

23 witnesses pointed out, was that however it happened --

24 and we will look at that in a moment -- her complaints,

25 or the complaints about her did enter the system and, as




1 it were, the voice was raised across the divide in a way

2 that the evidence suggests had not, or not often

3 happened, in earlier years. And, of course, what you

4 have been considering is what happened when, after all

5 these years, complaints were put into the system of

6 exactly the conduct that all of these other witnesses

7 and the other reports that I have mentioned spoke over

8 preceding years.

9 Now, it is at this point that one has to consider

10 the question of the weight, the importance, the place of

11 this kind of evidence in your consideration of the

12 issues. Clearly, nobody is suggesting that the lawyers

13 who have given witness statements to you and have come

14 to give evidence, in some cases, to you, are all and

15 every one of them liars, that they are making the whole

16 thing up. They speak of different cases. They are

17 not -- or mostly, other than those who were working with

18 Rosemary Nelson in her practice -- looking at the cases,

19 the particular cases, with which you are concerned. But

20 they were on any view, and assuming that this was not

21 a biased, deliberately skewed, selection of evidence

22 that you have heard -- they were painting a background

23 picture and a picture which, in my submission, was

24 notable for its consistency in the various ways that

25 I have described, an consistency, striking given the




1 different years of practice, the different

2 personalities, the different geographical areas within

3 Northern Ireland, of various lawyers who gave evidence

4 to you.

5 Now, sir, can we turn to the question of complaints

6 with that introduction, and this is dealt with

7 chapter 2, which is a rather more formidable, at least

8 in terms of length, chapter than chapter 1. Can I just

9 explain what I'm going to do to address the material you

10 have on complaints, which is very considerable?

11 What I'm not going to do is to go over all the

12 regulatory framework. I did that in opening at very

13 considerable length on Day 3, between page 3 and

14 page 82. If, at any stage after this, you feel moved to

15 check the regulatory basis of all of what we have heard

16 evidence about, then it is there and I hope it is

17 reasonably clear.

18 In this area, as in the other areas I have

19 mentioned, the years with which you are concerned are

20 transitional years, because at the beginning of 1997,

21 in January that year, Dr Hayes produced his report. We

22 learnt in the evidence something we didn't know about

23 it, which was that the report was either completely or

24 largely written by Simon Rogers, you remember, and the

25 recommendations in that report, principally of course




1 the establishment of the Ombudsman's office, were

2 accepted by the then Conservative administration and

3 adopted by the New Labour administration, when they came

4 to power in May 1997. And you have now heard witnesses

5 from the NIO, including Mr Rogers, who were involved in

6 setting up the new Ombudsman's office, although you will

7 recall that in fact Mrs O'Loan wasn't up and running

8 until, I think, November 2000. So throughout the whole

9 of this period the old system is in place, there is no

10 temporary or interim arrangement, but the Government has

11 accepted the case for change.

12 Now, I would like to pick up a point raised by

13 Mr Donaldson here, in his oral submissions, Day 125 at

14 page 69, between lines 5 and 9. Perhaps we could have

15 that on the screen (displayed). It begins:

16 "The ICPC system, which is still in place in England

17 and Wales was replaced for political and perceptional

18 reasons and not because of any intrinsic flaws. Certain

19 persons and groups have expressed a lack of confidence

20 in the system."

21 What I would like to do in response to that, please,

22 is to remind you of some of the relevant material you

23 have on it. First of all, Dr Hayes was himself

24 a distinguished former civil servant. He went on to be,

25 I think, a senator in the Republic of Ireland and to




1 undertake a number of other prominent roles in public

2 life. You will remember, as I said, the evidence of

3 Simon Rogers, who drafted the report, substantially

4 drafted it, and was then involved in its implementation.

5 I'm not going to show you it, but so far as his

6 evidence is concerned -- that's Mr Rogers -- it comes at

7 Day 59, page 3/18 going to page 12/1. So far as the

8 Government's attitude to the ICPC system is concerned,

9 I would like to remind you of the Secretary of State's

10 letter to Jane Winter of 14 July 1998 at RNI-206-251.

11 There are we are. That's the first completely incorrect

12 reference. I'm sorry about that.

13 The letter of 14 July, which I'm sure even now

14 a number of people are scurrying around to find,

15 contains the following sentence from Mo Mowlam:

16 "I recognise, as does Adam Ingram, that the public

17 does not have as much confidence in the current system

18 as we would like."

19 Now, with some trepidation I'm going to try another

20 document, RNI-106-117 (displayed). Yes, this is the

21 right document. It is the Government's response to the

22 Rapporteur's report. If you remember, in March 1998 --

23 we will look at the Rapporteur in a little more detail

24 in a moment -- but under the heading "The harassment and

25 intimidation of solicitors", the Government's position




1 in response to his observations is set out and it deals

2 with the virtues of the ICPC system first. And then, do

3 you see in the middle of the page in a paragraph

4 beginning "Nevertheless":

5 "Nevertheless, the Government and, indeed, the ICPC

6 recognise there are weaknesses in the current system

7 which are failing to inspire public confidence."

8 So it wasn't simply a question of presentation or

9 appeasing certain sections of the public, it was

10 a recognition by both the Government and the independent

11 body charged with supervision, that there were

12 weaknesses in the current system. And you will

13 remember, I'm sure, the rather striking evidence of

14 Mr Donnelly, who was the Chairman of the ICPC at the key

15 period with which we are concerned, which we can find if

16 we go back to the submission, please, at chapter 2,

17 page 7 (displayed).

18 This comes, I think, from his witness statement and

19 here, as the incoming chairman,, he describes

20 the organisation that he found on joining the ICPC as

21 its chairman.

22 Now, the next point I would like to make, please, in

23 relation to this change is that you do have evidence

24 here about the police's attitude to the new proposals

25 and to the new system, and that was certainly something




1 of which Government, in the person of NIO officials,

2 were very conscious of.

3 Can we start, please, by going back to the document

4 at RNI-106-117 (displayed), because you will see there,

5 having set out the main characteristics of the

6 Ombudsman's system underneath the paragraph we looked

7 at, "nevertheless", it says:

8 "These reforms have received widespread support, are

9 aimed at building greater public confidence in the

10 system ..."

11 There must be a word missing:

12 "... while also inspiring police confidence."

13 And can I remind you of two witness's evidence on

14 this? The first, Christine Collins again, please, at

15 Day 60, page 142 and line 3 (displayed), and I'm just

16 going to read this out because I think it is important

17 evidence:

18 "A police service has got to have integrity. I'm

19 trying to hunt for the right words. A police service has

20 got to have integrity. It has got, for that reason, to

21 have discipline. It has got to have proper rules and

22 procedures. It has got to be able to make sure that

23 those are followed. All of that sort of flows one from

24 the other.

25 "A police service that doesn't have those




1 characteristics is not a proper police service in the

2 sort of British understanding of the term. I think it

3 would be corrupt. So anybody in the police service must

4 be at all times try and ensure that that's the sort of

5 service they work in, have signed up to have, and are

6 a part of. Exactly the same way, actually, as if you

7 are a civil servant. You have to try and make sure that

8 your organisation, your department has the same sort of

9 characteristics of integrity and honesty and

10 professionalism imbued in it. And I don't think it is

11 right to sort of leap to the assumption which, forgive

12 me, I think the way you were phrasing the argument ..."

13 That's me:

14 "... was that the police didn't feel that it was

15 important to be professional. They did. They felt it

16 extremely important to be professional, to have that

17 integrity, that impartiality, at least as important as

18 the community at large did. In coming to the specifics

19 of, you know, the change in the complaints system, I

20 think when Dr Hayes issued his report, he was actually

21 supported comprehensively by all sections of the police

22 as well as by the community. And it was for that

23 reason -- and I don't think there was any resistance in

24 the police to the need to be able to demonstrate their

25 integrity and their professionalism and to be able to




1 deal very robustly with any wrongdoers."

2 So that was certainly her evidence as Head of Police

3 Division at the time as to how the new system was

4 regarded by the police themselves.

5 And the second witness I would like to take you to

6 or remind you of was Sir Ronnie himself, who, on Day 98

7 at page 73, was asked at line 10:

8 "In terms of other changes, we have also heard

9 evidence about the decision to adopt the recommendations

10 of the Hayes Report, and what followed was the rather

11 slow process of setting up the Ombudsman's office.

12 "Again, that coincided with this period, didn't it?"

13 And he said:

14 "It coincided with that period and, again, it is

15 something that I personally was very strongly in support

16 of, something in respect of which I had quite a number

17 of meetings with Dr Hayes about as he moved towards his

18 recommendation, something I have always and continue to

19 strongly support."

20 So, in my submission, that gives you a rather more

21 accurate view of what the Government's attitude to the

22 existing system was and the reasons why the new system

23 was introduced by accepting Dr Hayes' recommendations

24 and how the new system, the changes that were being

25 implemented, was regarded.




1 Now, so far as the complaints themselves are

2 concerned, sir, the way chapter 2 works is to set out

3 some very brief introductory comments, including, for

4 example, some evidence about the structure and the

5 system and how it all worked. Then in a series of

6 sections, to address the various complaints about which

7 you have heard evidence, and what I would like to do to

8 show you how it works is to look at the first page of

9 the chapter 2 index, please. Yes.

10 So the first three are introductory, and the focus

11 throughout, I should say, is on the evidence that we

12 have heard during the hearings. So in this chapter, no

13 attempt is made to go back over the regulations, for

14 example. The focus is on the evidence.

15 You will see that 2.3 gives you some detail and

16 evidence about the way things actually worked in the

17 holding centres, so it is a general introductory

18 section. I'm not going to deal with any of it in

19 detail.

20 Then, beginning from 2.4 you have the various

21 complaints, and we have Barry Toman's complaint on the

22 screen at the moment. In relation to the holding

23 centres, of course the simple point here is that of the

24 complaints against the police which you have considered,

25 I think only two arose outside the holding centre




1 system, the first being obviously the Garvaghy Road

2 complaint and the second being Shane McCrory, who was

3 held not in a holding centre, but I think in Lurgan

4 police station. But all of the rest originated in the

5 holding centres and concerned individuals who were

6 detained there.

7 Now, you will also remember that there were two

8 other complaints investigated by the Inquiry about which

9 you have heard evidence, which were not made by clients

10 of Rosemary Nelson. They are dealt with in 2.14 and

11 2.15 of this chapter, and the first is C284 and the

12 second is Trevor McKeown. And I will have something to

13 say about both of those cases in a moment.

14 Now, so far as the way in which the chapter works is

15 concerned, for most of these individual cases it follows

16 a standard format. And using the Barry Toman cases as

17 an example, if you look down the very long list of

18 subsections, as it were, 2.4.5 is the evidence of the

19 DC P121, and what it then does is to consider his

20 evidence on various points; in other words, about the

21 P146 investigation, about his Mulvihill interview, what

22 he said to the Inquiry and then, a couple of further

23 sections, his views in evidence as to the motivation of

24 the complainant, and then his views, as expressed in

25 evidence, of Rosemary Nelson.




1 And if you follow it down, the next witness is

2 DC Walker and then DS P228, DC P162, et cetera. What

3 you see in fact is a series of repeated headings in

4 which the various witnesses' evidence on those topics is

5 set out for you.

6 Now, so far as the C284, Trevor McKeown and

7 Garvaghy Road cases are concerned, the treatment that

8 they receive in the chapter is rather different,

9 reflecting the slightly different circumstances in which

10 they arose. But broadly speaking, the bulk of the

11 chapter is structured in that way.

12 If we could go on to the final page of the index,

13 which is the sixth page of the index, please -- all the

14 time pushing the boundaries of technology, you will

15 see -- the last two sections to draw to your attention.

16 I will be touching on these points later.

17 The first, 2.16 deals with the way in which that

18 particular complaint, the LAJI complaint, developed,

19 including the involvement of Commander Mulvihill. And

20 the final section focuses on his appointment and its

21 aftermath. And it is in that context, as you will

22 remember, that the complaints issue became particularly

23 prominent politically at the very highest levels both of

24 the Northern Ireland Office and the RUC. And it is also

25 in that context that some consideration is given to the




1 position of Geralyn McNally, and that's another topic I

2 will be touching on in due course.

3 Now, may I deal with one general matter in relation

4 to complaints and the way we have set out the material

5 for you here? Because I hope it will put the detail

6 which is set out in this very long chapter in context.

7 It is also a point to which reference was made in

8 Mr Donaldson's submissions, and this is the question of

9 whether at the end of the day you intend to make

10 findings or reach conclusions about the truth of the

11 allegations in individual cases.

12 There are some things about that that I want to say,

13 as it were, so they are on the record and in the

14 transcript. There have been two judicial review

15 applications launched by the PSNI in relation to this

16 area of evidence, and the first was triggered by your

17 ruling on 10 June last year, and the transcript

18 references, which you mustn't, I think, detain yourself

19 with now, are Day 32/149 to 159.

20 That ruling and the application which followed it

21 raised two points, if you remember. The first was an

22 application to cross-examine or question directly the

23 client complainants, and the second was whether you

24 should be investigating criminal records. That

25 application was dismissed by Lord Justice Girvan on




1 15 December last year.

2 So far as that is concerned, the dismissal of the

3 application is acknowledged in the PSNI's written

4 submissions at paragraph 1.14. That's RNI-920-010

5 (displayed). However, you will have noted that in

6 Mr Donaldson's oral submissions, he made some

7 observations about the decision particularly in relation

8 to cross-examination or direct questioning, and he said

9 this:

10 "I think we felt, and we still feel, in spite of the

11 decision given in court by Lord Justice Girvan, that in

12 fact we should with have been allowed to deal, to

13 cross-examine those of the Lurgan Nine who gave

14 evidence. It was a matter within the discretion of the

15 Inquiry. I think what the court -- what

16 Lord Justice Girvan really held was that it was

17 something for you to decide as you felt appropriate. I

18 don't want to say anything further about it, but it is

19 just something that we feel still a little unhappy

20 about, because there were people making various

21 allegations and it is something that normally one would

22 expect to be able to deal with in a direct way like

23 that."

24 Sir, the decision is as it is and it was a decision

25 to uphold the ruling that you had given.




1 Now, the second judicial review application raised

2 a question relating to findings of fact, but, again,

3 focused on this area of complaints and, indeed, on the

4 same ruling of 10 June, in which you indicated your

5 position at that point -- 10 June last year -- which was

6 that you were not inclined to determine the truth or

7 otherwise of each and every complaints case.

8 Now, that application, the second PSNI application,

9 was withdrawn on 24 April this year. In their written

10 submissions, for example, at paragraph 4.15, the PSNI

11 continued to seek to persuade you to make findings of

12 fact in the complaints cases, citing a passage from my

13 opening, which also featured prominently in the judicial

14 reviews.

15 However, you will also have noted by contrast the

16 written submission put in by the solicitors who in fact

17 represent the vast majority of the police witnesses,

18 including the witnesses in the complaints cases, and

19 that submission contains a plea -- if I can put it that

20 way -- that you should stick with the position as you

21 set it out in your 10 June ruling.

22 I would like to remind you of that, please at

23 RNI-920-005 (displayed). Here the officers'

24 representatives set out the relevant passage from the

25 ruling and say, we can see a few lines above the




1 quotation:

2 "The views of those officers coincide with the

3 approach that the Panel has taken."

4 If we just turn over to the next page, please, the

5 nub of it is in the last sentence of paragraph 10:

6 "The Panel has indicated clearly that it does not

7 intend to make individual findings about these officers

8 and the officers would respectfully exhort the panel to

9 adhere to that position."

10 So, sir, the last thing I want to say before lunch

11 is that this leaves you with a fairly remarkable

12 position, in which the employer or former employer of

13 the officers concerned urges you to make findings in

14 those cases, thus, at least in theory, opening up

15 officers and former officers to the possibility of

16 adverse findings. Whereas those actually representing

17 the relevant witnesses, the relevant officers, urge you

18 not to; urge you to stick to the position as set out in

19 that portion of your ruling in June, which is cited in

20 their submissions.

21 So far as I'm concerned, sir, I don't propose to add

22 anything further to that potentially explosive mixture.

23 Would that be a convenient moment?

24 THE CHAIRMAN: Certainly. We will adjourn until five

25 past two.




1 (1.05 pm)

2 (The short adjournment)

3 (2.05 pm)

4 THE CHAIRMAN: Yes, Mr Phillips?

5 MR PHILLIPS: Sir, the first thing I will like to do is to

6 correct my incorrect reference before lunch. It wasn't

7 RNI-206-251, where you find the Secretary of State's

8 letter of 14 July 1998, it was RNI-106-251.

9 Sir, before we adjourned, I perhaps unwisely said

10 I wasn't going to say anything more about the various

11 positions which the PSNI, on the one hand, and those who

12 represent the majority of the officer witnesses, on the

13 other hand, have taken up. I'm going to stick to that

14 promise, but I am going to say something about your

15 position in all of this so that it is clear and on the

16 transcript.

17 I can do that simply by reminding everyone of what

18 was said on your behalf by the Inquiry Solicitor in his

19 affidavit in the second of the two judicial reviews,

20 which was sworn on 19 March this year and sent to the

21 Full Participants a week later.

22 There, at paragraphs 32 and 33 is the following:

23 "The Panel are concerned to make three matters

24 clear:

25 (a) They have not reached a final or irrevocable




1 decision about either the shape of their report insofar

2 as it relates to their complaints, or about specific

3 matters or conclusions that may be contained within it

4 in this area. They have all the relevant evidence.

5 They will have review this evidence in its totality in

6 the coming weeks and months and will then decide how to

7 deal with the evidence in their report.

8 "(b) It remains open to any party to make

9 submissions about the evidence relating to the

10 complaints and about the way in which they suggest that

11 this area should be approached by the Panel in the light

12 of all the evidence; specifically, if anybody or any

13 person or body wishes to make submissions that the Panel

14 should reach any particular conclusions, it remains open

15 to them to do so. Those submissions will be considered

16 on their merits by the Panel."

17 I should add, sir, that of course that has now

18 happened. This was in the middle of March and that

19 phase has now taken place. Returning to the text:

20 "(c) As indicated in paragraph 23 above, when the

21 Panel have reached the stage of reaching provisional

22 conclusions on the evidence, they will, if appropriate,

23 then provide an opportunity for further submissions and

24 comment in relation to the text of the draft report."

25 That related to potential criticisms of individuals'




1 organisations. And then something I mentioned earlier:

2 "The Panel had and continue to have concerns about

3 whether it is possible or appropriate to make any

4 findings about individual complaints given in

5 particular, (a) the passage of time since the complaints

6 were made and the fact that the witnesses' recollections

7 were inevitably weakened, (b) the lack of any

8 independent corroborative evidence in respect of many of

9 the complaints, (c) the fact that many of the

10 complainants were unable to identify the officers

11 alleged to have made the statements in relation to which

12 complaint was made, and (d) the absence of any apparent

13 causal connection between any of the individual

14 complaints and the death of Rosemary Nelson."

15 So, so far as the Panel's position, that was the

16 position, as I say, in the solicitor's affidavit.

17 Now, sir, that takes me back to the chapter 2 that

18 we looked at and the submissions we prepared on

19 complaints. And for the avoidance of any doubt, we have

20 examined the material and put it together in this way

21 not on the basis that you were going to make finding of

22 fact. Those decisions, of course, are decisions for

23 you. What we have done is to put together the material

24 in what we hope is a coherent way so that if you wish to

25 consider these cases in this level of detail with that




1 or any other purpose in mind, you may do so.

2 If it comes to that stage, then I submit the only

3 sensible way of approaching this is to consider all of

4 the material, as I said earlier, rather than turning

5 your faces away from any part of it or disregarding or

6 ignoring any part of it.

7 As it's for that reason that I suggest it is simply

8 not a tenable approach to follow Mr Donaldson's

9 suggestion on Day 125 at page 112, when in summing up

10 the PSNI's position on the complaints of the group of

11 clients he referred to as the Lurgan Nine, he said to

12 you:

13 "Our general submission is this: that in relation to

14 all of the Lurgan Nine, their allegations and complaints

15 should be disregarded completely."

16 Now, that's what he said and if that's what he

17 meant, then you will, I suggest, have no difficulty in

18 rejecting that submission, for the material that has

19 been assembled merits an altogether more careful and

20 thoughtful approach.

21 It is also notable that the approach of disregarding

22 evidence is not one taken by the PSNI in their written

23 submissions, where, in the conclusion to chapter 4, for

24 example, at 4(h)(k) and (l), they suggest an approach to

25 the evidence of the complainants -- if we can have that




1 on the screen, please, at RNI-920-063 (displayed). You

2 see:

3 "The complaints made by nine clients of

4 Rosemary Nelson that have been considered in detail by

5 the Inquiry are significant and require close scrutiny."

6 And these written submissions continue over the page

7 at subparagraph (l) with a conclusion, which you will

8 see from (k), is a conclusion as you perhaps expect

9 based on what they say is the basis of the evidence for

10 the various reasons outlined in this section. In other

11 words, you consider the material and then arrive at

12 a conclusion, and that's the conclusion that they invite

13 you to arrive at. But it does at least involve

14 considering carefully the material which has been

15 assembled.

16 Now, so far as the complaints are concerned, what

17 I'm intending to do is to look at them without looking

18 at any individual complaint in any detail in their

19 proper chronology. And the reason for that is first

20 because, as I have said before, it is important to keep

21 that chronology in mind. Secondly, because it will

22 allow us along the way to focus on other turning points,

23 points of significance in other areas of the case which

24 the various submissions have put forward or suggested to

25 you. For example, was there a turning point in




1 Rosemary Nelson's attitude to the police? And thirdly,

2 because of a suggestion made in the PSNI submissions at

3 paragraph 3.12, which I would like to look at now,

4 please, RNI-920-026 (displayed). And this, by reference

5 to the proceedings brought against Colin Duffy for the

6 two Lurgan police officers -- and you see there the date

7 of the charging 25 June, and the date of the DPP's

8 direction on 2 October -- says:

9 "In the intervening period there was an intensive

10 campaign, in which Mrs Rosemary Nelson was instrumental,

11 aimed at achieving the release of Mr Duffy. It would

12 appear that Rosemary Nelson adopted a number of

13 approaches at this early stage of the investigative

14 process."

15 Well, you can see there that the key period in terms

16 of months is from nearly the end of June to the very

17 beginning of October, a very short time indeed. But

18 going back to the text in the next paragraph, which

19 follows immediately after this, you will see there,

20 picking up the number of approaches, the first is said

21 to be the complaints made on behalf of Colin Duffy in

22 relation to his detention. They are said to be part of

23 the overall defence strategy. Then at 3.15 on the next

24 page, the vast proliferation of correspondence, you see

25 there in the second line of 3.15. But back to 3.14, you




1 will see the second approach which is suggested involves

2 the other complaints, and you will see in the second

3 line here:

4 "There is evidence to suggest that the initial steps

5 taken to introduce those complaints into the system

6 occurred following Mr Duffy's arrest for the Lurgan RUC

7 murders and prior to his release. While the statements

8 of complaint from those complaints were ultimately

9 provided to the authorities after Mr Duffy's release,

10 Rosemary Nelson appeared to refer to them in a statement

11 taken by P146 dated 16 September 1997."

12 Then you will see a reference to what I said in

13 opening, and then in the next sentence a concession that

14 these complaints related to events earlier in the year.

15 Then, at the end, this important sentence:

16 "One interpretation of the evidence that the Inquiry

17 is invited to consider is that these complaints were

18 employed primarily to bolster the complaints made by and

19 on behalf of Mr Duffy himself."

20 So a number of important points arise as a result of

21 that. The first is about timing. If these complaints

22 with were part of an overall defence strategy aimed at

23 engineering the release of Colin Duffy, then we must by

24 definition be focusing on the period of time after his

25 arrest on 23 June 1997. Secondly, any complaints




1 activity after his release on 2 October 1997 would seem

2 on the face of it to be irrelevant. Third, it is

3 notable that the only contemporaneous document referred

4 to and cited in this paragraph 3.14 is Rosemary Nelson's

5 own statement coming near the end of this period on

6 16 September, which is in itself nearly three months

7 after Colin Duffy's arrest and the lodging of his own

8 complaint, as we will see, and, as it happens, some two

9 weeks before the DPP's decision.

10 Now, that, of itself, is hardly consistent, you may

11 think, with the idea of an intensive campaign. But more

12 significant perhaps than that is the fact that this

13 statement, referred to here on 16 September 1997, was

14 the statement in which the existence of statements taken

15 some six or more months before by the CAJ from, for

16 example, the Toman brothers, was revealed for the first

17 time.

18 Now, as I will show you in a moment, the evidence

19 that you have heard suggests that Rosemary Nelson was

20 aware of those allegations, i.e. the allegations being

21 made by those and other clients, very much nearer the

22 time of the alleged events themselves; in other words,

23 in February or early March 1997. So the important thing

24 is that nothing had apparently been done by

25 Rosemary Nelson to advance these complaints in the




1 months that passed from their occurrence to the arrest

2 of Colin Duffy and, perhaps even more importantly given

3 the PSNI's submission, that nothing had been done in the

4 three months after the arrest and before this statement

5 was made to the investigating officer, P146.

6 Indeed, you will recall that the evidence you heard

7 shows that such was the level of inactivity, of

8 non-cooperation by Rosemary Nelson and her clients in

9 those months, that at the end of July 1997, P146 applied

10 for a dispensation order in relation to the LAJI

11 complaints, some six months, therefore, after the arrest

12 of Colin Duffy and presumably, if the PSNI's

13 interpretation were correct, at a moment when one would

14 have expected Rosemary Nelson to have been pushing the

15 LAJI complaints for all they were worth.

16 Now, the other aspect of this suggestion is, of

17 course, that it posits a campaign, a campaign in which

18 the other complainants may have been willing -- who

19 knows? -- participants, but with Rosemary Nelson as the

20 common link and presumably, therefore, as the key actor

21 in the campaign, which, if you remember, is said to be

22 one aspect only of the broader campaign to obtain the

23 release of Colin Duffy.

24 That, in turn, makes it important to spend just

25 a little time considering the way in which the




1 Colin Duffy complaints were themselves raised, how they

2 were treated and what allegations were made by

3 Rosemary Nelson on the one hand, by Colin Duffy on the

4 other hand, in those complaints which arose at the end

5 of June 1997.

6 So, sir, with that in mind, can I take you through

7 the chronology as quickly as I can, pausing to look at

8 a few documents and to remind you of some of the

9 evidence. And I should say that this aspect of the

10 history is not one which received separate treatment in

11 any of the chapters. So this is an example of what

12 I told you this morning, of where I'm going to be

13 effectively supplementing what's in writing by dealing

14 with another topic.

15 The first thing to say about Rosemary Nelson and

16 complaints is it is clear from the material that we have

17 assembled that she had made various other complaints

18 against the police, against the Army, on behalf of

19 various clients before 1997, and there are examples in

20 file 201.

21 But it appears from the evidence that she, even

22 earlier than that, in 1993, was involved in complaints

23 made by Colin Duffy arising out of his detention in the

24 Lyness case, and you will remember the evidence about

25 that.




1 In his statement, he explained how he chose her as

2 his solicitor. The evidence you have heard suggests

3 that she had never to that point taken on a case of that

4 kind before. But, for example, at RNI-832-068 -- I hope

5 that's the right reference -- (displayed) we will see

6 a statement made by him in support of a complaint or

7 complaints made during that period of detention. There

8 is another one -- I don't want to show you it -- at

9 RNI-831-227. So a number of years, therefore -- four

10 years, about -- before his arrest for the murder of the

11 two police officers in Lurgan. And he said in his

12 statement to you -- paragraph 18 at RNI-804-101

13 (displayed) -- that:

14 "Rosemary encouraged me to make formal complaints

15 whenever the police treated me badly."

16 And then he made it clear in the same part of the

17 statement that she encouraged him to make these

18 complaints which concerned the conduct of interviews by

19 certain interviewing officers.

20 I should say that there is no suggestion in these

21 complaints, as far as I can see, that abusive or

22 derogatory comments were made about her, but that's the

23 focus of them. And you will see, as a matter of

24 interest, that one of the officers concerned -- we can

25 see the cipher on the page there -- is officer P121, who




1 in due course featured in a number of the complaints

2 which were made some years later.

3 Now, moving pretty briskly forward

4 to September 1996, that was the time, you will remember,

5 when Colin Duffy's conviction for the murder of

6 John Lyness was overturned on appeal, we think about

7 26 September 1996. And you will remember Jane Winter's

8 evidence -- Day 28, page 1310 to 1401 -- that she

9 thought that this was when the trouble started, as she

10 put it, for Rosemary Nelson. And Paul Mageean of CAJ

11 agreed with that, confirming in his evidence to you what

12 he had said to the makers of a programme which was

13 broadcast just after the murder in April 1989. And

14 I would like to look at that, please, at Day 24,

15 page 65, line 24.

16 I showed him, as you will see, line 24 of 65, an

17 extract from an interview he had given to the programme

18 Spotlight, which was broadcast on 21 April. And I said

19 to him, picking up on his comments in interview there:

20 "It looks, doesn't it, as though your understanding

21 from her was that it was the release or acquittal on

22 appeal of Colin Duffy in relation to the John Lyness

23 murder that Rosemary Nelson herself regarded as

24 something of a turning point?

25 "Answer: Yes.




1 "Question: Can I take it, therefore, that that

2 understanding you had was based on conversations you had

3 with her yourself?

4 "Answer: Yes.

5 "Question: Can you remember how she pointed to

6 a turning point; in other words, what it was in her view

7 that marked the change?

8 "Answer: I think to some extent the Lyness case,

9 I suppose, was the first major high profile case that

10 she had, that brought her into a conflictual

11 relationship with the police and particularly,

12 I suppose, the circumstances around Duffy's acquittal."

13 "Question: So I think the interview made clear that

14 what she was pointing to was that it was after that that

15 a lot of these comments started in police interrogation

16 cells. So it was after that that the comments were

17 reported back to her by clients. Is that what you mean?

18 "Answer: Yes.

19 "Question: Comments they said had been made to them

20 by interviewing officers in the detention centres?

21 "Answer: Yes."

22 And, of course, the interest and importance of this

23 evidence is not just from the point of view of

24 Mr Mageean's view, his view of when the turning point

25 might have been, September 1996, but that, as he told




1 you, it was based on what he had understood to be

2 Rosemary Nelson's own view, her own perception of when

3 things changed.

4 In due course, what I'm going to do is to highlight

5 for you other points in the chronology where she is

6 recorded, either in documents or by witnesses in their

7 evidence, in their recollection, giving her own view

8 about when things changed, when turning points occurred.

9 But moving to the next month and October, can we

10 look, please, at RNI-115-001 (displayed), because that

11 is the note made by Jane Winter at the very beginning

12 of October of her discussion with Rosemary Nelson and

13 Rosemary Nelson being recorded by her as talking about

14 abuse of her to her clients whilst they were being

15 detained at Gough. So this is many, many months before

16 the arrest of Colin Duffy, and it is a note that records

17 examples of very much the sort of abuse, the sort of

18 comments, that you have heard about in evidence and in

19 the witness statements of the other solicitors

20 practising in Northern Ireland at the time, the sort of

21 categories of comment that I mentioned to you earlier.

22 In the final paragraph, you will see Jane Winter

23 recording her as resenting these slurs on her

24 professionalism as a lawyer and that it had given her

25 pause to think and, finally, that she was feeling quite




1 worried about her own safety -- that is another topic to

2 which I will return in the chronology -- the various

3 comments, the evidence that you heard, about the way she

4 regarded these comments and later the threats that were

5 said to have been made against her, about which there

6 has been a good deal of evidence, a good deal of comment

7 in the submissions, and the picture that is presented is

8 a somewhat complex one.

9 Now, in Jane Winter's evidence to you, she said

10 that -- Day 28, page 35 -- we needn't look at it -- she

11 was pretty certain that this was the first time that

12 Rosemary Nelson had mentioned this sort of conduct, this

13 sort of abuse to her, as far as she could recall. She

14 also said -- this is page 36 of the same transcript --

15 that she had the impression that the events she was

16 talking about were relatively recent and, I don't know,

17 but it may be, therefore, that these events took place

18 in the immediate aftermath of the Colin Duffy appeal,

19 but obviously before 3 October 1996, on which day the

20 note was made.

21 In terms of Rosemary Nelson's reaction, Jane Winter

22 said to you that she, Rosemary Nelson, felt she normally

23 had very good relations with the police, was very

24 surprised and annoyed that the police were behaving in

25 this way. That's paragraph 21 of her statement --




1 that's Jane Winter's statement obviously -- RNI-823-024.

2 Now, another point just to draw to your attention,

3 picking up something I said earlier, is the first line

4 of this:

5 "She does not have many clients arrested under the

6 PTA."

7 So going back to the evidence you have heard, this

8 was not a very, very experienced practitioner in this

9 field, as at this point, the beginning of October 1996.

10 And so far as the evidence is concerned, by this stage

11 there were really -- there was really just a big

12 Duffy/Lyness case on the books, as it were, which was

13 joined, we think, during 1996 by the rather different,

14 although equally high profile, Garvaghy Road Residents

15 Coalition case.

16 Now, moving on to slightly later the same month,

17 RNI-115-002 (displayed), we see on 7 October

18 Jane Winter's letter, and there are a couple of these

19 letters of importance in considering this. Jane Winter

20 says that she was very sorry but not surprised to hear

21 of what Rosemary Nelson had told her, and this, if you

22 remember, is the letter in which she suggested that

23 Rosemary Nelson make a note of events such as this, as

24 they happened, and:

25 "... perhaps let us have a copy in strictest




1 confidence."

2 She enclosed with that the British Irish Rights

3 Watch report of October and, as you know from the

4 evidence, that was simply the latest such report from

5 that organisation. I asked her, if you remember, why,

6 why she enclosed that report, and she, Jane Winter,

7 said -- Day 28, page 41:

8 "To show her that she was not alone in receiving

9 this abuse and to give her some idea of the context in

10 which it was happening, and also hopefully to encourage

11 her to record any abuse that she suffered in the

12 future."

13 So, again, just remembering the context here, a sole

14 practitioner without much experience of these cases who

15 was surprised by this sort of behaviour, in contrast to

16 Jane Winter from the NGO, who had been making a study of

17 these matters for some years and who was "by no means

18 surprised".

19 Now, later that year, in November, in a part of the

20 evidence that may have been perhaps overlooked, there

21 was a meeting between Julia Hall of Human Rights Watch,

22 Rosemary Nelson and Colin Duffy in Northern Ireland.

23 The plan was for there to be a discussion of the

24 Garvaghy Road case and Colin Duffy's case, but at the

25 end of the meeting, according to Julia Hall's evidence




1 to you, it was Colin Duffy who mentioned the comments

2 made to clients. This is in November 1996, and she

3 addressed that in her statement to you, but also in her

4 evidence at Day 29/104 to 105. And it looks as though

5 Rosemary Nelson was somewhat reluctant in that meeting

6 to get into a discussion about her own involvement, as

7 it were, the things that related to her, and wanted the

8 conversation to concentrate on her cases. And

9 Julia Hall said at page 108:

10 "I think maybe a little bit of explanation is in

11 order. When I visited Northern Ireland in November, it

12 was very clear to me that Rosemary was reluctant to make

13 her interaction with Human Rights Watch about her case.

14 There were two issues she felt very strongly about. One

15 was the Garvaghy Road situation and the other was

16 Colin Duffy's case, and it was clear to me then that she

17 would be a reluctant participant in terms of her own

18 case, and it was -- I would have -- my impression was

19 that I would have pursued with her if I had any sense

20 that this was an issue that was very high on her

21 priority list."

22 So certainly that was the impression of that

23 representative of an NGO at the end of 1996: that far

24 from pushing these matters to the top of the agenda, in

25 fact Rosemary Nelson didn't particularly want to get




1 into a discussion about them and wanted to focus on, as

2 it were, her clients rather than herself.

3 Now, in January 1997 you will remember that

4 Jane Winter was contacted by Rosemary Nelson rather out

5 of the blue and Jane Winter explained to you in her

6 evidence, Day 28, page 47:

7 "I think I heard reports from CAJ that she had been

8 coming in for quite a lot of abuse. I think it was from

9 the CAJ, certainly one of the NGOs."

10 And so for the first time in this little chronology,

11 it looks as though it was at that point Rosemary Nelson

12 initiating contact with Jane Winter, and that is the

13 introduction, as it were, to the first of the LAJI

14 cases.

15 You remember the relevant detentions were in the

16 early part of February. C138 was arrested on the 6th

17 and released on the 9th, and his complaint is dealt with

18 in detail at 2.7 of chapter 2.

19 So far as he is concerned, he told you in his

20 statement and in his oral evidence on Day 36 that he did

21 not tell Rosemary Nelson about the alleged comments

22 about her whilst he was in detention. And in his

23 statement to the Mulvihill team, he said -- and this is

24 at RNI-227-027 (displayed) -- that he thought he had

25 told her on the following Monday or Tuesday. He




1 explained, you will remember, in his evidence that he

2 had got drunk on the Sunday after his release and it was

3 after that that he went in to see her the next day or

4 the following day. And in his evidence, he made it

5 clear to you that he had told Rosemary Nelson what abuse

6 they were saying about her and reported her as having

7 been very annoyed by what he said.

8 He also said that she had asked him to make

9 a complaint and that over the next month she contacted

10 him to remind him to come in to do so, to complete the

11 necessary paperwork, one assumes, but that he was busy

12 working away from Lurgan and didn't get round to it.

13 In fact from the material we have seen, it looks as

14 though no statement was taken from him

15 until October 1997. So that's a situation in which, at

16 this point anyway, in early February 1997,

17 Rosemary Nelson is informed by her client of the gist of

18 the allegations and, for whatever reason, nothing

19 whatsoever is done about it at all.

20 Now, the three next clients -- Colm Toman,

21 chapter 2.5; Barry Toman, who is at 2.4; and

22 Anthony Simmons at 2.6 -- were arrested on the 11th.

23 They were all, I think, released on the 14th and they

24 also gave evidence about the circumstances in which they

25 explained what had happened to them to Rosemary Nelson.




1 Colm Toman said he told her everything, but in his

2 evidence he wasn't quite so sure about it and thought he

3 had gone to see her a couple of days later, describing

4 her reaction -- Day 36, page 82, line 19 -- as being

5 shocked.

6 Again, Barry Toman says that:

7 "A day or two after the incident [he] had told her

8 about what they had said to me about her. She wasn't

9 panicking or anything, she didn't seem that worried.

10 I specifically went to see her to tell her about it when

11 they let me out."

12 So, again, shortly after, it seems, his detention.

13 Anthony Simmons, it is a very similar picture, but

14 with the intervention this time not of Rosemary Nelson

15 at all, but of Mr Vernon, because he told you that he

16 didn't mention the personal stuff, the particularly

17 unpleasant personal remarks about her, until about three

18 weeks later when he told Mr Vernon. So that would be

19 about the beginning of March 1997. He said he told him

20 in his office.

21 And Mr Vernon told you, if you remember, that the

22 client was rather embarrassed at the nature of the

23 comments and, indeed, he told you also about the

24 circumstances, namely that the client had come to his

25 office in which the statement was made.




1 The conclusion, therefore, in my submission, in

2 relation to what became the LAJI complaints is that

3 certainly in relation to three of them, Rosemary Nelson

4 was well aware of the details in February 1997 and that

5 is, of course, consistent with the probabilities. It is

6 more than likely that clients in this position would

7 have wanted to pass on such comments had they been said.

8 Now, so far as Anthony Simmons is concerned, it

9 looks as though the details, the relevant details, if I

10 can put it that way, what he called "the personal

11 stuff", didn't get to Rosemary Nelson direct, but rather

12 to Mr Vernon. But certainly by one or other route, the

13 information which became the focus of the LAJI

14 complaints was known either to Rosemary Nelson or in the

15 office, if I can put it that way, within a very short

16 period of time.

17 Now, can I just pause at this point to pick up

18 a suggestion made by Mr Donaldson in his oral

19 submissions, which is that none of what he called the

20 Lurgan Nine actively made a complaint to his solicitor

21 while he was in detention. That's Day 125, page 98,

22 line 8. Well, you have seen the actual situation in

23 relation to the LAJI complainants. Colin Duffy, looking

24 at the others -- the other complainants -- certainly, as

25 we will see, told Rosemary Nelson about what he said had




1 happened during his detention in June. Indeed, the

2 complaints were made immediately. And in 1998,

3 Gary Marshall also made complaints about his detention,

4 although not, of course, the allegations that he made to

5 the CAJ, which have been investigated during this

6 hearing.

7 And finally, James Donnelly in June 1998 -- you will

8 remember the only complainant who came after the

9 introduction of the recording systems -- he told his

10 solicitor and made a complaint during his detention in

11 late June 1998.

12 Now, so far as the LAJI complaints are concerned,

13 can I make these further submissions? All of those four

14 clients were released without charge, which raises the

15 point, also made, as I recall, by the family, of what

16 advantage was there to them in raising these issues

17 after their release if there were no criminal

18 proceedings on foot, in which they might have been of

19 tactical use. Do you remember that was one of the

20 suggestions made, that people were simply registering

21 complaints for the wider purposes of their criminal

22 cases.

23 If that was indeed the motive in other cases, it

24 cannot by definition have been a motive for fabrication

25 in these cases.




1 And the fact, of course, in relation to those

2 detainees, the complainants, that did not make their

3 complaints until after they were released, you can look

4 at that point also in different ways. Again, one of the

5 allegations made, which you have heard, is that

6 complaints were made during detention in order to break

7 up the routines, in order to allow for a pause, because

8 the procedures dictated that statements should be taken,

9 that there would in effect be a break in the progress of

10 the interviewing while the complaint was processed.

11 Well, again, of course, the irony in relation to

12 those who told their solicitor after their detention is

13 that that too cannot have been a motive in raising what

14 might be unmeritorious complaints.

15 Now, given all these matters emerged many months

16 before the Colin Duffy arrest, it must follow that the

17 thrust of the PSNI's submission on this point is that

18 they were, as it were, revived after the events had

19 taken place, some months after, many months after in

20 some cases, as part of the wider campaign. And in 4.12

21 of the submissions, in the last sentence, it says:

22 "These complaints appear to have created the

23 platform from which a vast campaign of protest was

24 launched by LAJI, BIRW, Amnesty International and many

25 others."




1 Now, in a later part of the submission, at 474

2 to 477 and in the summary paragraph 4(m) at RNI-920-064,

3 a slightly different interpretation is put on things.

4 Can we see RNI-920-064, please (displayed)? An entirely

5 plausible interpretation of the evidence -- this is the

6 evidence about complaints -- is that:

7 "The complaints were part of a concerted campaigns

8 to discredit the police. That theory is strengthened by

9 the apparent association between some and possibly all

10 of the complainants, a matter that was not pursued in

11 the course of the evidence."

12 So you can see the way certainly the latter part of

13 the submission works, namely by a form of insinuation

14 coupled with an explanation, indeed a disclaimer, that

15 the absence of any convincing evidence of the links

16 which would be necessary to establish the existence of

17 the campaign, is in some way down to the Inquiry. And

18 obviously you will have to decide for yourselves whether

19 there is any basis for this case that there was

20 a concerted campaign.

21 The family have addressed this matter in their

22 submissions in their overview section, for example, at

23 RNI-925-155 to RNI-925-159. At this stage, I would just

24 like to make a couple of points about this suggestion,

25 which is one of the suggestions in which, as it were, a




1 huge amount of evidence is drawn together, with the

2 suggestion that it can be interpreted in a particular

3 way.

4 Now, one of the criticisms made in the complaints

5 area of some of the clients is, as we have just been

6 seeing, that they failed to register their allegations

7 properly and that they failed thereafter to cooperate

8 with the investigations. And it is fair to say that

9 some have continued that pattern of behaviour, if I can

10 put it that way, by declining to cooperate with the

11 inquiry.

12 Those criticisms are there and obviously will be

13 assessed for what they are worth. However, they do

14 raise, in my submission, a rather important question

15 about the campaign, because if, as is suggested in that

16 and a number of similar paragraphs, these individuals

17 were part of a concerted campaign, then they were at the

18 very best half-hearted members of the campaigning squad

19 if they didn't register their complaints promptly and

20 they failed thereafter to cooperate with the

21 investigations.

22 How, I ask rhetorically, keen were they to discredit

23 the police if it took them months to provide statements,

24 if they provided statements at all, and if they then

25 failed to pursue their cases through the system, in




1 short, really to make something of them, to make

2 trouble, if you like, with their allegations? And that

3 is one with the difficulties, in my submission, with

4 drawing these large generalisations from a rather

5 complicated picture disclosed by the evidence.

6 Considerable reliance is placed in an analysis of

7 the evidence by the PSNI on failure to cooperate,

8 inconsistency, failure to provide statements. And yet,

9 when it comes to the suggestion that there was an active

10 campaign, this particular evidence creates, I would

11 suggest, some considerable difficulty.

12 Now, the other aspect of this concerns

13 Rosemary Nelson herself, because certainly during this

14 period, as we will see, from February 1997, but in fact

15 much earlier than that from the notes made by

16 Jane Winter in October, she was not, it seems, doing

17 anything very much to advance these complaints or to

18 raise them in any more public forum, certainly not to

19 push them through the system. And that is interesting

20 and you may think significant, given that the evidence

21 has shown you that in some cases she was capable of

22 devoting quite extraordinary amounts of time and of

23 energy to her clients' causes. The Colin Duffy case,

24 the Garvaghy Road cases are just two examples.

25 So the fact that so little happened in relation to




1 these matters is something that needs to be taken into

2 account when considering whether the evidence discloses

3 the sort of concerted campaign that is being suggested

4 here.

5 Now, so far as the LAJI cases are concerned, you,

6 I think it was, sir, mentioned in the last hearing the

7 Jane Winter note of 18 February 1997. Can we just look

8 at that very briefly, please? RNI-115-105 (displayed).

9 This, of course, is within a few days of the release of

10 the last of the LAJI clients. Jane Winter explained

11 that she had been due to visit Northern Ireland in any

12 event on 26 February, but this call from Rosemary Nelson

13 came in instead, and it contains a note of what

14 Rosemary Nelson was reporting to her, about an

15 escalating amount of abuse and threats made against her

16 by RUC officers at Gough.

17 You will note here in the second line of the second

18 paragraph:

19 "Recently, these have included threats to get her

20 shot."

21 In her evidence, Jane Winter said to you that she

22 believed she could tell from Rosemary Nelson's voice

23 that she was upset. That's Day 28/48/01 to 04. And in

24 her statement she said this about Rosemary Nelson's

25 attitude to it:




1 "Rosemary Nelson was extremely irritated and

2 insulted, because, as she saw it, she was simply doing

3 her job and could not understand how she had found

4 herself the subject of such abusive comments."

5 That actually echoed the way that Dara O'Hagan put

6 it in her evidence to you at Day 43, page 35:

7 "She was -- as I said, she was trying to do her job.

8 She was just wanting to get on with it and, you know,

9 she would have said to me, 'Look, all I want to do is

10 just go, do my job and get on with my job. Why won't

11 they let me do it?' That was her attitude."

12 Of course, this phrase "doing her job" has come up

13 again and again and again in the witness evidence that

14 you have now read and heard as a way of encapsulating

15 what some police officers thought about her: that she

16 was only a lawyer doing her job. Sir Ronnie Flanagan,

17 at the top of the organisation, in his statement,

18 paragraph 24, RNI-806-048 (displayed), said:

19 "My impressions at the time were that

20 Rosemary Nelson was a lawyer who was doing her job."

21 And he stressed in his evidence to you, you

22 remember, on Day 99, that that remained his view of her

23 at all times throughout, he said, the relevant period,

24 up to and, indeed, after her murder, as he put it:

25 "Nothing altered my view of Mrs Nelson in that




1 regard."

2 That's Day 99/181/15 and 16. And yet here

3 in February 1997, Rosemary Nelson's surprise at these

4 remarks being reported to her is put down to exactly

5 that: that she regarded herself as simply doing her job.

6 And her complaint, in effect, was that she was not being

7 treated in that way on the basis of the sort of remarks

8 that she was reporting to Jane Winter. She was not

9 being treated as a solicitor doing her job.

10 Now, of course, you have now heard evidence from

11 other RUC officers, including senior officers from

12 Special Branch who, it would appear, did not simply

13 regard her as a solicitor doing her job, and that was

14 perhaps one of the more significant developments in the

15 evidence during the course of the hearings, to which I

16 will return when looking at the Part 2 issues.

17 But this matter has, in my submission, another

18 aspect to it in addition to the point raised by the

19 question put by the solicitor in his letter sent on your

20 behalf, which focused on the fact that some parts of the

21 organisation appeared to have regarded her in one way,

22 and other parts, including the senior officer at the top

23 and a lot of other officers much nearer the bottom, on

24 the ground, regarded her, they said, as a lawyer just

25 doing her job. Although I have submissions to make on




1 that, for the moment I would like to focus on this other

2 aspect: that she thought that she was just doing her job

3 but she was not being treated appropriately.

4 Now, that's where one has to come back to the

5 evidence from the other defence solicitors which you

6 have heard, because, as I suggested this morning, in

7 a sense one of the things that emerged from her evidence

8 was that this sort of comment was part of doing the job;

9 it was par for the course, was the expression

10 I mentioned this morning. It went with the territory.

11 There is no suggestion, it should be stressed, that

12 these lawyers were on the receiving end of this sort of

13 comment or treatment because they were the subject of

14 the sort of intelligence reporting that you have now

15 seen in relation to Rosemary Nelson, or that they were

16 regarded, as she plainly was by some police officers, as

17 someone who had crossed the line.

18 So, in short, their evidence, if you accept it,

19 suggests that while the treatment she received was

20 perhaps more intensive in its nature and came at a later

21 stage in the history than that which they experienced,

22 it conformed at least in its character with what they

23 described and which they thought went with -- or some of

24 them said they thought went -- with the territory.

25 Paul Mageean said to you in his evidence, Day 24,




1 page 25, line 8:

2 "I think that to a degree this was regarded as something

3 that simply happened if you were doing this sort of

4 work."

5 So on that basis and perhaps ironically, therefore,

6 the fact that Rosemary Nelson started to receive reports

7 such as -- it is no longer there -- but such as that

8 recorded on 18 February was, in a sense, merely

9 confirmation that she was doing her job, ie that she had

10 joined the small group of lawyers defending terrorist

11 cases. The comments reported back to her, therefore,

12 were, as it were, a badge of membership of that

13 particular group.

14 And that may also be important when considering why,

15 if you accept that such comments were made, they were

16 made in her case, because if all of that is right, then

17 there may be no necessary connection at all between the

18 intelligence reporting the very particular comments

19 about her, which you have seen, and the comments that

20 were being made, it is said, to her clients in the

21 holding centres. As it were, the intelligence reporting

22 is not a necessary part of the equation. All that was

23 required on this hypothesis was involvement as a defence

24 solicitor in terrorist cases.

25 Now, of course, if in fact the information in those




1 reports, the allegations set out -- I mean the

2 intelligence reports there -- those views of her were,

3 indeed, more widely shared, then, of course, that might

4 have provoked comment. It might have added to the

5 intensity, to the regularity of such comment. But it

6 would appear on this approach to the overall evidence

7 that it was not a necessary element.

8 Now, I would like to remind you at this point of

9 Paul Nelson's evidence on this, which, as in a number of

10 passages of his evidence, you may think, was thoughtful

11 and careful. This is at Day 41, page 83, beginning at

12 line 14 when I said to him:

13 "Can I just come back to something you referred to

14 earlier and you deal with it in your statement. You say

15 in relation to this sort of problem in the earlier years

16 that -- and I think you are saying that she accepted it

17 as the norm, i.e. the sort of thing you expect when you

18 are doing work of this kind?

19 "Answer: Yes.

20 "Question: Was that her attitude?

21 "Answer: That was her attitude, yes.

22 "Question: So, in turn, the moment when it seemed

23 that things were more troubling was when she was

24 getting, as it were, worse than the norm and -- it is an

25 observation I'm going to make now, as I have listened to




1 some of the evidence -- as other people were probably

2 telling her it was more than the norm. That was what I

3 wanted to ask you. She is a sole practitioner with very

4 little experience before she started her own practice.

5 Where did her view of the norm come from?

6 "Answer: Her own observations. That's all it could

7 have been, and the fact is that she was the practice --

8 I mean, there was no distinguishing her. Other

9 solicitors may not have got the work because they were

10 acting for maybe 10/15 solicitors for one practice. So

11 they were acting for a name. She was the name. She was

12 the person, she was it all.

13 "Question: And in trying to understand why it was

14 she was being treated other than in accordance with the

15 norm, did she reach any conclusions, conclusions she

16 shared with you?

17 "Answer: The only conclusion she saw was -- at the

18 time, was the publicity surrounding her cases. Not

19 blaming the publicity, but the fact is that people knew,

20 even though she did not see the publicity really as an

21 issue, because anybody who actually wanted to kill her,

22 and eventually did, would have known the type of cases

23 she was acting in. They didn't need to read about it in

24 the newspapers, she didn't have to be high profile. The

25 publicity itself didn't have a real impact."




1 Sir, there is another related aspect to this

2 question of, as it were, different views of doing her

3 job which emerged from the evidence, and this is the

4 theme of professional contact. And a point is made, and

5 it is an important point, in the PSNI submissions, 3.6,

6 RNI-920-024 (displayed). And there, it is said that:

7 "Police officers, like lawyers, were able to take

8 a detached professional view and acknowledge the nature

9 of the work that each other did."

10 And on this aspect -- it is a closely-related aspect

11 of the matter -- Jane Winter said this:

12 "Rosemary felt that she was a professional just

13 doing her job. She regarded the police as professionals

14 doing their job, and she felt that it undermined her

15 standing with her clients when police officers made

16 these sorts of comments."

17 And that is Day 28, page 40.

18 This business of behaving professionally and being

19 treated professionally was a theme also, you may

20 remember, of her statement to the Congressional

21 Subcommittee. That starts at RNI-113-044, and if we

22 could look at the second page, please, RNI-113-045

23 (displayed), and the relevant paragraph is the third

24 full paragraph beginning:

25 "Another reason ..."




1 Can we enlarge that, please? Thank you. Just

2 making the point that clearly this, which is one of the

3 relatively few statements or comments made by

4 Rosemary Nelson herself about her experience, is

5 obviously worthy of a good deal of attention:

6 "Another reason why RUC officers abuse me in this

7 way is because they are unable to distinguish me, as

8 a professional lawyer, from the alleged crimes and

9 causes of my clients."

10 So, in a sense, here, the complaint, which is

11 a familiar one from a great deal of the material, but

12 here made by Rosemary Nelson, is that she was not being

13 treated as a professional in a double sense: she was not

14 being treated as a lawyer should have been, on the one

15 hand, and she was the object of unprofessional behaviour

16 and attitudes, she believed, on the part of some police

17 officers.

18 And that, of course, is a question thrown up by the

19 evidence, where the PSNI suggest, in a way that one

20 would like to think was always the case, that lawyers

21 and police officers and other professionals are able to

22 take a detached professional view of their work and of

23 the people they encounter in their work, the question

24 raised by a considerable amount of evidence that you

25 have heard and read is whether in fact it discloses




1 police officers who were not able to take a detached and

2 professional view of her. And the other side of this is

3 the material that you have now seen, which suggests on

4 the face of it that she too had got too closely caught

5 up with her clients and was not herself able to take

6 a sufficiently detached view of them, leading to

7 behaviour characterised by some as unprofessional and by

8 others, on the basis of intelligence reporting, as

9 amounting to criminal activity.

10 Sir, would that be a convenient moment?

11 THE CHAIRMAN: Certainly. Half past three.

12 (3.15 pm)

13 (Short break)

14 (3.34 pm)

15 THE CHAIRMAN: Yes, Mr Phillips?

16 MR PHILLIPS: Sir, having looked at the two points, the

17 evidence about doing her job, if I can put it that way,

18 and about professional conduct, and looking at them from

19 a variety of different angles, can I now pause in what

20 is -- I probably need to remind you -- a continuing

21 chronology to look at her relations with the police,

22 about which you have heard evidence and about which

23 various Full Participants have made submissions? I just

24 want to make a few remarks about that.

25 There was a change, it seems fairly clear, you may




1 think, on the evidence, but the witnesses -- even the

2 family members, close colleagues, who knew her best and

3 worked most closely with her -- did not agree with the

4 date or the key events that marked the turning point.

5 For example, her brother Eunan, you may remember, said

6 in his statement at paragraph 10, RNI-813-705

7 (displayed):

8 "I don't think that Rosemary's relationship with the

9 RUC was always bad."

10 Ken McKee, in his statement, charted what he saw to

11 be a deteriorating relationship between Rosemary Nelson

12 and the police, and said that for him the worsening in

13 the relationship began after Colin Duffy's arrest for

14 the shooting of the two police officers in Lurgan, so

15 in June 1997.

16 Now, he, if you remember, had left the practice in

17 1995, had been involved, as I have said, in the Lyness

18 case, but obviously had moved on by this point in 1997.

19 But what he said about the Lyness case in his

20 statement -- paragraph 37 at RNI-813-180 -- was that

21 relations between Rosemary Nelson and the police in that

22 case, the Lyness case, were civil, and also that the

23 subsequent appeal, as we have heard, in September 1996,

24 did not affect the police's attitude to her, as he

25 saw it.




1 What he says is that when he met Rosemary Nelson

2 after the murders, after he had left the practice, she

3 told him then that relations with the police were bad,

4 an expression he remembers her using was "gone quite

5 icy, it was no longer the way it used to be".

6 And Sharon Keeley, who also worked in the practice,

7 you will remember, suggests the turning point came when

8 she became more high profile following the appeal, the

9 Lyness acquittal, Colin Duffy's acquittal on appeal in

10 that case in September.

11 Mr Leeson, Brian Leeson, who joined the practice in,

12 I think, October 1996, says, so far as he is concerned:

13 "It was clear that there was no love lost between

14 Rosie and the police."

15 So that provides a point in the chronology for that

16 impression, and it may well be, therefore, that the

17 difficulties pre-dated the Colin Duffy arrest and,

18 indeed, had their origins earlier, as one or two other

19 witnesses have suggested, in the latter part of 1996.

20 Certainly for Brian Leeson there is no change recorded

21 in his evidence. If you remember, he just remembers

22 relations being less than ideal.

23 And there is evidence that you have received to

24 suggest that Rosemary Nelson herself acknowledged a poor

25 relationship with the police. She told




1 Annette Sheridan, for example -- that's paragraph 69 of

2 her statement -- that the police hated her.

3 And Patrick Vernon's statement includes the comment

4 that:

5 "She occasionally made comments that she thought

6 they ..."

7 That's the police:

8 "... strongly disliked her."

9 And it is important, you may think, to bear in mind

10 here that a number of the solicitors who worked in her

11 practice testified that their own experience of dealing

12 with the police did not include difficulties of this

13 kind. I have in mind there Patrick Vernon,

14 Sharon Keeley and Mark McNulty, who was another lawyer

15 who worked in the practice at some point in the 1990s.

16 But, again, may I suggest that Paul Nelson's own

17 evidence on this is of value and he, in his statement,

18 said in a passage from paragraphs 33 to 36:

19 "I think that over time the difficulties she had

20 with the police started to become an issue for her."

21 And later:

22 "I think that Rosemary's relationship with the

23 police just deteriorated over time and she started to

24 feel that the difficulties they were giving her and the

25 abusive comments that they made about her were more than




1 the norm ..."

2 That phrase again:

3 "... that should be expected."

4 Now, when he came to give evidence to you, he

5 suggested that the deterioration in the relationship

6 came in 1997, 1998, commenting to you that she had

7 previously had very good relationships with the police.

8 Indeed, he mentioned that she had police officers as

9 clients.

10 But very importantly, he also said to you that her

11 problems were not with all the police officers, not with

12 the force as a whole, but just, as he put it, in certain

13 circumstances. And he said -- and this is Day 41/96/15

14 to 19, that -- he was not aware of Rosemary Nelson

15 having a generalised distrust of the police, but was

16 concerned about isolated incidents.

17 Now, you will remember his evidence was that she did

18 not in general give him specifics, give him details, of

19 what had been reported back to her and he said in

20 relation to that, based on, as it were, the limited

21 amount that came back from her to him -- this is

22 Day 41/90, line 16 -- that these -- that's the comments

23 made, she believed, by police to her clients -- became

24 more vicious and more numerous in the last year of her

25 life.




1 However, in the next part of his evidence, if we

2 move on, please, to Day 41, page 91, 9 to 12, when we

3 were looking at this issue together, he made this

4 observation in answer to a question of mine at line 7.

5 He said:

6 "As far as I'm concerned, I mean, she thought there

7 was people out there who were willing to kill her.

8 I mean, she never, ever expressed to me that it might be

9 the police. She thought they were playing her close

10 attention, but she never, you know, assumed that.

11 I think it is because she is a woman solicitor, she felt

12 they would give her some protection."

13 And that's something he returned to later in his

14 evidence:

15 "She never expressed to me that she actually thought

16 the police themselves would harm her. She, at this

17 time, thought, yes, they were following her, they were

18 watching her, but she didn't think that they were

19 actually a direct threat to her life. She was concerned

20 that the attitude they had towards her might filter down

21 to other individuals that might harm her."

22 That's Day 41, page 93, 14 to 16.

23 Finally on this, he went on to tell you that she,

24 Rosemary Nelson, perceived the threat to her as being

25 from Loyalist paramilitaries. That's Day 41, page 94/19




1 to page 95/06.

2 That reminder of the evidence in this context of her

3 relationship with the police is, I would suggest,

4 important, and it was a distinction as to where the

5 threat was likely to come from. And her view on that

6 basis, unsurprisingly emphasised to you by Mr Harvey in

7 the course of his submissions on the question of threat

8 and threat assessments, his point, if you remember put

9 simply, was that attention was being focused in entirely

10 the wrong direction, because the matters that came in

11 for examination and consideration were being considered

12 as complaints rather than focus being appropriately

13 directed to where it should have been: those who were

14 likely to present a real danger to her, namely not the

15 police so much as, as Paul Nelson put it, Loyalist

16 paramilitaries.

17 Sir, you can see that theme, if I can put it that

18 way, coming out of Paul Nelson's own evidence.

19 Now, just returning briefly to our chronology, on

20 18 February 1997, RNI-115-113, Jane Winter wrote an

21 important letter to Rosemary Nelson, and can we have

22 that on the screen, please (displayed)? It followed, as

23 you can gather from the first paragraph, the telephone

24 call the note of which we saw earlier. And the point is

25 repeated in the third paragraph:




1 "The second thing to say is that you are not alone.

2 This does not make it any better. In fact, it is

3 a scandal, but every single defence lawyer I have ever

4 spoken to who has had clients in any of the holding

5 centres has come in for this sort of abuse and threats."

6 However, picking up the point I have just made to

7 you, it is interesting to see the focus in this letter,

8 which is very much a focus on the RUC, as opposed to on

9 Loyalists. And we see that in this last paragraph of

10 the page, and if we turn over the page to 104, you will

11 see there that the second paragraph of the first full

12 paragraph, contains this sentence:

13 "I know that nothing is ever certain in

14 Northern Ireland, but I'm pretty convinced that the

15 source of your problem is RUC officers, rather than

16 Loyalist paramilitaries, even though it may not always

17 be easy to tell them apart."

18 That being a clear indication of Jane Winter's

19 position in the matter.

20 But it is interesting, you may think, to see in this

21 NGO letter a response to the passing on of information

22 by Rosemary Nelson, which is to direct attention not at

23 Loyalist paramilitaries, the men of violence, as it

24 were, but to the police as being the source of the

25 difficulties which, at this point, Rosemary Nelson was




1 experiencing.

2 What I would like to do briefly at this point,

3 prompted by this important letter, is to consider the

4 evidence you have received about Rosemary Nelson and her

5 relationships with the NGOs, because this letter is

6 a letter of advice, you remember, containing various

7 options for Rosemary Nelson, which we went through

8 together -- that's myself and Jane Winter in her

9 evidence -- but the NGO community, if I can put it that

10 way, loom large in the evidence and in all the material

11 that you have seen.

12 The evidence not only shows you how the various

13 organisations interacted with Rosemary Nelson, but also,

14 I would suggest, the influence or impact that they may

15 have had on her, and further, the impact that her

16 connection or involvement with the NGOs may have had on

17 the view of her which was taken by others, be it in the

18 NIO, be it in the RUC.

19 Now, the questions that I have posed before and put

20 to various witnesses include the question of whether,

21 because her concerns, the allegations about her, came

22 through using the vehicle often of NGOs, they were

23 regarded in a particular way, they were perhaps treated

24 less seriously, whether perhaps the individual

25 circumstances of her case and the particular concerns at




1 the heart of it were lost in either the campaigning or

2 in the way in which those organisations were regarded as

3 being campaigning organisations by those in authority.

4 Mr Harvey, you will remember, touched on this in his

5 submissions to you on Day 127, RNI-629-273 (displayed),

6 where he said comments about what he suggested was the

7 attitude, for example, of Christine Collins and

8 John Steele to such organisations, and reminded you of

9 the long passage in Christine Collins' evidence on

10 Day 61, including the comment about Rosemary Nelson's

11 belief that the whole of the British state was corrupt.

12 Now, the NGO witnesses have given you their views on

13 this and, in their turn, so have the various senior

14 officials and senior police officers, perhaps the most

15 striking example of this being the famous exchange

16 in November 1998 -- I'm not going to show you any of the

17 documents because they are short and very well-known --

18 when, on 5 November, Jane Winter sends a letter to the

19 Chief Constable enclosing her latest report -- I think

20 it is the one called "Mistaken identity" -- which

21 included treatment of the topic of defence lawyers and

22 their intimidation and harassment, and specific

23 references to Rosemary Nelson, her evidence to the

24 Congressional Subcommittee, et cetera, and six days

25 later, on 11 November, Sir Ronnie responded in brisk




1 terms:

2 "I suppose by now that I should really have learned

3 to expect and not be surprised by the total absence of

4 balance in reports produced by your organisation. This

5 latest report continues your now well-established

6 practice in that regard."

7 I took this up with both of them, and you will

8 remember that Sir Ronnie did indeed confirm that it was

9 his drafting, as perhaps one had suspected. He said he

10 had read the report and he didn't accept my suggestion

11 that he may have regarded Jane Winter and people like

12 her, as John Steele had said, as naive, nor that they

13 were campaigners with political agendas.

14 And so on that topic, whether actually

15 Rosemary Nelson's cause, as it were, was in any way

16 undervalued or devalued by her perceived close

17 engagement with the NGOs is a matter you will have to

18 consider in weighing up the evidence, particularly of

19 those at the NIO who tended to reject any such

20 suggestion, or with senior police officers.

21 For the present, what I would like to remind you of

22 is another aspect of her involvement with the NGOs which

23 was mentioned by Paul Nelson, whose evidence, again,

24 I come back to. This begins, the relevant passage, at

25 Day 41, page 82, and here we were discussing the




1 development of the allegations and the way she regarded

2 them. The key part of this exchange comes at the end of

3 this page, 82, when I'm asking him about his views on

4 this, and I say:

5 "When you said 'the latter one', can you give us any

6 examples?

7 "Answer: Well, I mean, you know, when the letter

8 came in and she had seen some later stuff from clients

9 had built up. But I think it was more the attitude of

10 other people to the threats, to be honest.

11 "Question: That's something that comes out very

12 strongly from your statement. As I understand it, you

13 think that it was at least in part the attitude of

14 others and particularly of the NGOs that changed her own

15 view of the matter; is that right?

16 "Answer: It changed her view, and on the other

17 hand, it highlighted it more, as you have seen.

18 "Question: It was actually other people were

19 highlighting these issues. So it was when, as it were,

20 things were reflected back to her by those individuals,

21 those organisations, that her own view of them changed?

22 "Answer: That's correct, yes."

23 Then later in his evidence at page 99, he said at

24 line 9:

25 "You talk in paragraph 54 about the fact that they,




1 as it were, passed material on her behalf to the

2 authorities. Is it fair to say that some of these, the

3 impetus behind the complaints, came from the NGOs?

4 "Answer: Yes.

5 "Question: In paragraph 113 of your statement, you

6 tell us that you think Rosemary was pushed to make a

7 complaint by the NGOs:

8 "'I think they were more behind the complaints

9 investigation than she was.'

10 "Is this something you believed yourself at the

11 time?

12 "Answer: Yes.

13 "Question: Did you express your concern about that

14 to her?

15 "Answer: Well, she mentioned the word 'pushed'

16 gentle pushing, not really pressurised pushing. She

17 felt at the time that she had documented these

18 occurrences at the time -- they weren't complaints at

19 the time -- with different organisations who picked the

20 ball up and started running with it. And she felt that

21 they were pursuing the cases not against her will, but

22 just that they were running with it. If it had been

23 herself, she probably wouldn't have got round to doing

24 it. Not that she wouldn't have wanted to; she probably

25 wouldn't have got round to doing it.




1 "Question: So as a matter of finding the time and

2 doing the necessary paperwork, she wouldn't have done?

3 "Answer: She might not have done, no.

4 "Question: Do you think that at any time before her

5 murder she regretted getting involved with the

6 complaints?

7 "Answer: No, I don't think she regretted it. It

8 was just another occasion where she got publicity really

9 not of her own making, being generated by, you know,

10 another occurrence."

11 Now, sir, so far as that is concerned, and our

12 current examination of what is said to be a campaign of

13 complaint making, the evidence from her husband is

14 hardly, you may think, consistent with that. His

15 reading, in short, is that she would not, or probably

16 not, have advanced the complaints at all had she been,

17 as it were, left to herself, in part because of her lack

18 of faith in the system and in part because of her

19 disinclination, about which a number of witnesses have

20 spoken, to get involved in the necessary paperwork.

21 He suggested, therefore, that had it not been for

22 the gentle publishing from the NGOs, complaints would

23 not have been advanced. In his statement, referred to

24 there, he put it, at paragraph 113, in this way:

25 "I think that Rosemary was pushed to make the




1 complaints by the NGOs. I think that they were more

2 behind the complaints investigations than she was."

3 Now, the strength of the pushing, if I can put it

4 that way, perhaps doesn't matter, whether it was gentle

5 or not. What you may think does matter here is that

6 this is not an account of somebody who was determined to

7 push the complaints for all they were worth, for

8 whatever other motive. And that, in turn, you may think

9 is rather more consistent with what actually happened,

10 which was a period of inactivity for many months before

11 the fourth quarter, if I can put it that way, of 1997.

12 It is in that context that one must also remember

13 that the first complaints to surface, as it were,

14 in March 1997, came not from her, certainly not directly

15 from her, but from the Lawyers Alliance for Justice in

16 Ireland who wrote the letter to Sir Louis, you remember,

17 on 13 March.

18 Now, we have looked at Jane Winter's letter of

19 advice of 18 February. There is another aspect of it

20 I would like to focus on very briefly and that is at

21 RNI-115-105 (displayed). This was in the list of things

22 that she might do in response to this sort of behaviour,

23 and right at the top of the page, it says:

24 "Make a formal complaint to the RUC every time it

25 happens."




1 And in her evidence Jane Winter made it clear that

2 this did not mean making a complaint through the

3 complaints system, through the ICPC system. She said --

4 I'm not going to get it up on the screen, but the

5 passage begins at Day 28, page 58, line 14 -- that that

6 was not what she meant. That the point was to register

7 a complaint with the police themselves.

8 The exchange was:

9 "Question: Just so I'm clear about this then, this

10 is a recommendation, is it, to register the complaint

11 with the police?

12 "Answer: Yes.

13 "Question: But not to pursue a complaint through

14 the formal structure?

15 "Answer: No. I didn't think there was any point

16 and I don't think Rosemary would have thought there was

17 any point."

18 So that in mid-February, therefore, is the situation

19 and it is consistent with the general evidence we looked

20 at this morning, where solicitors didn't make use of the

21 complaints system. And it raises the question, which

22 I raised with Jane Winter, how it was that in under

23 a month such a complaint, an ICPC complaint, the LAJI

24 complaint, had been made to her.

25 To that, she gave two answers. The first that it




1 wasn't -- or not obviously or primarily -- a letter of

2 complaint, and anyway it wasn't made direct by

3 Rosemary Nelson. And the second was that in

4 Jane Winter's view, there was a change in the approach

5 of lawyers more generally and Rosemary Nelson in

6 particular brought about by Mr Cumaraswamy's visit

7 in October that year and the comment he made at that

8 point and thereafter urging lawyers, if they had

9 a complaint, to put it into the existing system.

10 Now, the problem with that explanation, that latter

11 point, is it doesn't fit the chronology at all because

12 that visit came at the end of October and the LAJI

13 complaint is made in the middle of March. And, indeed,

14 the Colin Duffy complaints, as we will see, come in

15 before the end of June. So it may be for present

16 purposes that the importance of Jane Winter's letter and

17 Jane Winter's evidence about this is its consistency

18 with the other material, which is that it was very

19 unusual at this point, as they saw it, for a lawyer to

20 engage with the complaints system and push his or her

21 complaints through it, as opposed to, for example,

22 registering them with the NGOs, whether it be British

23 Irish Rights Watch or others.

24 Now, in the chronology, the next stage occurs when

25 Rosemary Nelson contacts Mr Mageean at the end




1 of February and he, in due course, in the early part

2 of March, goes to her office and takes the statements

3 from the Toman brothers and, it appeared, from other

4 clients at the office. And I asked him why it was he

5 had asked to take the statements in this way because he

6 accepted that it was his idea and not Rosemary Nelson's,

7 which in itself is interesting, and he mentioned three

8 factors -- Day 24/70 to 73 -- the deterioration in her

9 situation and his wish to, as he put it, show solidity

10 with her; the fact that she was a sole practitioner and

11 needed support from his organisation, from CAJ; and

12 lastly and importantly, the possibility of using the

13 material to persuade the Special Rapporteur to visit

14 Northern Ireland.

15 And so from this point on, as we will see, another

16 area of interest begins to come into play, and these

17 particular complaints have to be seen with all of that

18 in mind, because we know that, indeed, Mr Cumaraswamy

19 had been in correspondence with Jane Winter and had

20 raised the prospect of a mission to the UK as early

21 as February -- I won't show you the letter, but it is

22 RNI-110-000.500 -- and then met Mr Mageean at the

23 beginning of April when, as Mr Mageean remembered it, he

24 handed over the statements. And it was on 4 April,

25 RNI-110-008, you remember, that the Special Rapporteur




1 wrote to the UK Ambassador announcing his mission.

2 So in that sense it is important to see the

3 statement taking -- and there is no criticism in these

4 remarks, but it is important to see those statements in

5 the context of CAJ's own agenda, if I can put it that

6 way.

7 They were taking the statements not in order to

8 launch a complaint, but rather as part of a much broader

9 area of interest and concern, part of which included

10 encouraging the Special Rapporteur to visit, which is

11 something that in a very short period of time he had

12 indeed decided to do.

13 What is clear from the evidence that you have seen

14 and the material we have in the files, in my submission,

15 is that those statements, the Toman statements, although

16 undated, although not signed, had been taken by this

17 point in early March 1997, not least because Jane Winter

18 referred to them in her letter to Mr Cumaraswamy at the

19 beginning of March, 6 March, RNI-115-109, where she

20 said:

21 "My colleague, Paul Mageean, at the Committee on the

22 Administration of Justice has interviewed some of the

23 solicitors' clients and taken statements from them."

24 And also because of the references to them in other

25 contemporaneous material at the beginning of that month.




1 So by then, at the very latest, the full nature of

2 those Toman brothers' allegations was set out in those

3 documents, and yet Rosemary Nelson herself did nothing

4 to advance them at all. So if the point of the

5 exercise, as has been suggested, was cynically to use

6 complaints to undermine the RUC as part of some wider

7 campaign, again, I repeat that she had, as it were, the

8 information, she had the material, but for whatever

9 reason she did nothing with it.

10 THE CHAIRMAN: She was the quarry for the campaign, but not

11 the campaigner?

12 MR PHILLIPS: That is exactly what emerges, in my

13 submission. If there was a campaign, then she was in

14 a sense providing the ammunition or the material, but

15 she was not active, certainly at this point, in any such

16 campaign.

17 Now, on that topic, sir, what was striking is that

18 even when, in the course of his interview with

19 Barry Toman, the allegation emerged of a death threat,

20 because that, as you remember, was at the heart of the

21 Barry Toman complaint, even at that point, when I said

22 to him in his evidence -- Mr Mageean -- "Well, did that

23 not make you wonder whether this was something that

24 should have been either taken to the police or at least

25 put into a formal complaint?" He said, no, that hadn't




1 occurred. Nothing that he had learned during those

2 interviews led him to change the plan that he had when

3 he asked to come to Lurgan to take the statements, which

4 was to use the statements for the CAJ's own purposes,

5 not for a complaint, not for any other form of process

6 whatsoever.

7 The result of that, of course, was that that

8 allegation, in which a suggestion was made that there

9 was a threat made to Rosemary Nelson's life, did not

10 emerge until 20 October 1997, when, as a result of what

11 Rosemary Nelson had said to P146 on 16 September,

12 Paul Mageean was approached and handed over the two

13 statements.

14 Now, that episode, in my submission, takes us,

15 therefore, some little way on being able to evaluate who

16 was, as it were, the actor in all of this. And also, it

17 is the sort of episode that explains why it was that the

18 Special Rapporteur went to such lengths to say in his

19 press conference and then in his draft report that this

20 wasn't the right approach, that in fact if lawyers had

21 legitimate complaints, the points that needed to be

22 made, they needed to be made in the existing system,

23 which was already in the process of reform, but with

24 which for the moment was the only system available.

25 Because, as he explained and as I believe




1 Sir Louis Blom-Cooper also suggested in his evidence, if

2 allegations of this kind are not put through the system,

3 if they are not put to the police, then, of course,

4 apart from anything else, the opportunity to deal with

5 any difficulties, any adverse behaviour, any problems

6 that there may be within the organisation is lost. And,

7 sir, that evidence from Sir Louis was Day 23 at page 81,

8 line 13 to page 82, line 14.

9 Now, sir, looking briefly at the chronology again,

10 I mentioned the fact that there are a number of

11 contemporaneous references to these statements. One is

12 another Human Rights Watch note, 7 March, at

13 RNI-114-043, and I would like to look at that briefly,

14 if I may, because here Julia Hall returned to the issue

15 that Rosemary Nelson, remember, had been unwilling to

16 deal with in November, namely of her own experience and

17 the threats that she alleged had been made in comments

18 to clients. And you will remember she produced a report

19 to serve without favour on the basis of this and other

20 evidence (displayed).

21 That, again, is a note, she said, made at the time

22 of Rosemary Nelson's reaction to and feelings about

23 these sorts of comments. In her evidence, she said she

24 was very humiliated and particularly the comments that

25 were of a sexual nature were very disturbing to her.




1 And you will see the reference to the Mageean statements

2 in the penultimate line of this page.

3 Now, one other point here is under the answer, A,

4 the third paragraph, you will see a reference there to:

5 "... a particular RUC officer there [Gough Barracks]

6 who was involved with the Duffy case in relation to the

7 prosecution and he detests me. He is one of the

8 officers making these comments."

9 Now, that, because of the timing of this note, can

10 only have been the previous case, the Lyness case. And

11 it may, you may think, provide some support to

12 Jane Winter's suggestion that it was the successful

13 appeal in that case that led to a change in attitude or

14 at least in this case to the attitude of one police

15 officer involved in that case towards Rosemary Nelson,

16 and the name of that officer was not given by

17 Rosemary Nelson.

18 Now, so far as that is concerned, can I pick up

19 a further comment of Julia Hall in relation to these

20 allegations and these statements. In paragraph 13 of

21 her statement, RNI-808-090 (displayed), she says that she

22 asked Rosemary Nelson to send her the copies -- the

23 copies of the statements that were then briefly referred

24 to on the screen and have now disappeared -- for the

25 report she was writing. And in her evidence to you, she




1 confirmed that they didn't appear, and in due course she

2 got them from another source and eventually quoted them

3 in her report. I asked her about that in her evidence,

4 Day 29/116, and I said:

5 "And I think what you are saying there is although

6 she didn't send you the statements, you did in due

7 course receive them?

8 "Answer: I did. Actually, this is very emblematic

9 of the way that Rosemary proceeded. I did request the

10 statements from her, but did not receive them from her

11 and had to pursue them from another place."

12 All of a piece, you may think, with Paul Nelson's

13 suggestion to you that these were not matters that she

14 was moving on. Paperwork had been requested and, for

15 whatever reason, she didn't get round to providing it to

16 support what she had told Julia Hall on the telephone.

17 Now, the next event is obviously the LAJI letter,

18 13 March. We don't need to look at that. It is

19 overfamiliar to all of us, I'm sure. But so far as its

20 origins are concerned, Mr Lynch told you in his evidence

21 that he discussed the alleged comments with

22 Rosemary Nelson on a visit to Northern Ireland in March.

23 He spoke to a member of the Bar in Northern Ireland

24 about how to bring the comments and abuse and threats to

25 an end. He said to you in his evidence that he spoke to




1 her again and then sent the letter. He didn't supply

2 her with a draft of it; he took responsibility for that

3 drafting himself. And in his statement, he said, you

4 remember, in terms of his motivation:

5 "I decided that we needed to go public about our

6 concerns."

7 And when I questioned him about this, he agreed that

8 he had no detailed knowledge of the various cases and no

9 statements from the clients at the time he sent the

10 letter. So the statements have not worked their way, at

11 that point, to him either.

12 Now, that said, it would appear from the other

13 material you have in your bundle that his initiative, if

14 not at her request, at least had her support. And

15 I would like to show you a document, which I don't think

16 we did see in the hearing, dated, I think, 14 May 1997,

17 at RNI-114-060.500 (displayed):

18 "Many thanks for your fax correspondence ..."

19 This is Rosemary Nelson to Ed Lynch:

20 "... relating to your raising the matter of

21 intimidation at Gough Barracks on my behalf.

22 "You will appreciate the importance of this, since

23 observation has proved to be the most effective

24 preventative measure in the past. Of late, none of my

25 clients have been arrested and taken to Gough Barracks,




1 but I would be very much obliged if you could push on

2 with the enquiry."

3 So that is, as it were, a very, very brief version

4 of the history that led to the LAJI complaint.

5 Mr Mageean was asked about the LAJI complaint and

6 made it clear in his evidence, Day 24/43/7 to 12, that

7 those complaints were not the result of collaboration

8 between his organisation and LAJI. And at the point

9 Mr Lynch sent the letter, you may remember, I explained

10 that he told us he didn't have the CAJ statements.

11 Now, so far as the letter is concerned, I have

12 already made the point to you that on its face it looks

13 altogether more like an allegation of criminal

14 behaviour, namely that threats had been made by an RUC

15 detective. Again, you will remember that it is in the

16 singular, not the plural in Mr Lynch's letter, and what

17 Mr Lynch is demanding is not a police complaints

18 investigation but a criminal investigation.

19 So it would on the face of it be wrong to point to

20 this letter as marking the radical departure from the

21 general situation of not complaining to the ICPC in the

22 sense that what it appears to be demanding, as you

23 remember, is something quite different.

24 What Mr Lynch got was not what he had demanded, at

25 least not on its face, namely the investigation




1 originally led by Chief Inspector Gamble, I think, and

2 then in due course, I think, in June by P146. And the

3 Torricelli letter, 15 April, which led, of course, to

4 the May 1997 consideration of Rosemary Nelson's safety

5 is in very similar terms and, again, refers to a single

6 unnamed detective.

7 Now, an oddity in the chronology is that on 27 May,

8 RNI-203-006 (displayed), Anthony Simmons -- this was

9 established in the evidence, I think -- made

10 a handwritten statement -- it's a scrappy piece of work

11 on any view, but there it is at the end of May 1997. It

12 has to be said, however, that so far as the

13 investigating officers were concerned, there was no

14 cooperation from Rosemary Nelson or, indeed, anyone else

15 in their investigation. Indeed, at that point, the end

16 of May 1997, the investigating officers did not know the

17 identities of the clients concerned in the LAJI

18 complaint and hadn't got anywhere near to seeing any

19 statements made by them.

20 Which takes us next to 16 June 1997 and the murder

21 of the two police officers in Lurgan, about which you

22 have heard a very substantial amount of evidence, not

23 only about the investigation and in particular the

24 detention of Colin Duffy and the complaints that arose,

25 but also from all sorts of witnesses who spoke of the




1 impact of the murder, the shock and dismay, which they

2 felt as a result both of the nature of the crime and of

3 its timing at a moment when it seemed that things were

4 getting better and that there was a real prospect of

5 a further IRA ceasefire. And I have examples from, as

6 it were, all parts of the witness population:

7 Anne Cadwallader -- I'm not going to show you any of the

8 detail -- Day 19, page 23 to 24; Mr McMullen, the local

9 deputy subdivisional commander at Day 47, page 73;

10 Eamon Stack of the Garvaghy Road Residents Coalition,

11 who gave his own reaction; Mr Ingram, one of the

12 ministers, Day 66, page 67; and finally,

13 Sir Ronnie Flanagan himself, who talked about it in his

14 witness statement, paragraph 60, and was asked about it

15 on Day 98, page 87, by me, and said this at page 88:

16 "These were two community police officers patrolling

17 just in broad daylight and each was shot in the head and

18 murdered. It created widespread revulsion, as I have

19 said in the statement. Books of condolence were placed,

20 I think, in the town hall at Lurgan and there were long

21 queues of members the public who wanted to sign those

22 books."

23 On any view in the chronology that you are

24 considering, this was an important moment and more

25 particularly it became an important event when, very




1 shortly afterwards, it was clear that Rosemary Nelson

2 was the solicitor who was going to represent the

3 accused, Colin Duffy. He was arrested a week after the

4 murder, if you remember, on 23 June.

5 And so it is at this point, getting back to the

6 original prompt for all of this, that the period of time

7 which was the particular focus of that submission made

8 by the PSNI, begins. And as at this point, the position

9 on complaints is that nothing has happened very much to

10 advance them, save for the letter sent by Mr Lynch.

11 There had been no cooperation by Rosemary Nelson with

12 the investigation, rosemary Nelson had spoken, as we

13 will have seen now, over a number of months about what

14 was happening, what was being reported back to her, but

15 even that engagement on her part was limited. She

16 hadn't wanted to discuss the issue with Julia Hall

17 in November, for example, and when she did speak to her

18 in March, she didn't follow up by providing the

19 statements that had been requested.

20 So if one takes that snapshot at this point, the

21 real question is: was there a significant change in that

22 behaviour in the way that she was going about things in

23 the months -- and there are only a very few months, just

24 over three months -- which elapsed between that point

25 and the decision by the DPP to drop the charges?




1 The short answer to that question is, no. There

2 was, with the exception of the Duffy complaints

3 themselves, which I want to look at in a little detail,

4 and the statement that she gave on 16 September, no

5 engagement with the complaints process at all. And you

6 will remember, I'm sure, the evidence of P146, who

7 thought that he had made a closely argued case for

8 dispensation at the end of July, on the simple basis

9 that nothing had emerged to substantiate the complaints,

10 there had been no cooperation and nothing had happened.

11 That application went in to the system. You

12 remember, it took a very long time for it to be dealt

13 with. It involved Geralyn McNally, who was the

14 appointed supervising member by this stage and, if I may

15 say so, clinging to the hope, rather than in any firm

16 expectation that something different would happen, no

17 dispensation was granted and the officer was required to

18 continue.

19 And after a few more fits and starts,

20 Rosemary Nelson gave her statement to P146 in the middle

21 of September, that being a statement to do with Duffy

22 complaints, a complaint that she had made, a complaint

23 that he had made arising out of his detention. The

24 interview was not arranged with the LAJI cases in mind,

25 and you will remember in her statement by way of aside




1 she said that this had been going on for some time and

2 that Paul Mageean had come and taken the statements and

3 eventually, but in fact over a month later, as I have

4 said, on 20 October, by which time Mr Duffy had been

5 released, the statements of the Toman brothers were

6 handed over to P146.

7 Now, sir, just looking at a few points arising from

8 the Duffy complaints, because, as I said at the outset,

9 if the suggestion of a campaign here, that this was

10 merely one of the strategies employed to engineer his

11 release is right, then clearly the complaints made by

12 the defendant, Colin Duffy, and the principal actor in

13 all this, Rosemary Nelson, are of great interest and

14 potential significance.

15 They are dealt with at 2.8 of the written

16 submissions we have produced. There is a very detailed

17 survey there. It is not a survey that I'm going to

18 enter into, but I would just like to make a few points

19 about it.

20 Mr Duffy's complaints centred around the conduct of

21 the same officer we have seen in the earlier Duffy case,

22 P121, and he is the officer said by Mr Duffy to have

23 made the "your solicitor must be proud of you" comment.

24 It is expressed in various different ways, but that's

25 the nature of the complaint in relation to




1 Rosemary Nelson.

2 Bear in mind that as at this point in the

3 chronology, this is the first officer to be identified

4 in any of the complaints that we have been examining.

5 As I said before, at this point, in June 1997, the

6 investigating officers in the LAJI event didn't know the

7 names of the clients, still less the identities of any

8 of the relevant officers.

9 The other thing, in my submission, about the

10 Duffy/Nelson complaints is how very low-key they were.

11 It is a matter of some interest, you may think, that

12 there was no suggestion by Colin Duffy or

13 Rosemary Nelson that any form of sexual innuendo was

14 made in that case, unlike in the other cases that you

15 have considered. This was a situation in which

16 complaints of various kinds were made about

17 Colin Duffy's treatment while being detained, but from

18 our point of view the Rosemary Nelson-related

19 allegations are, you may think, at the low end of the

20 scale; the comment about her being "proud of you".

21 The second or third, I'm sorry, point about it is

22 that they were not delayed. These were complaints that

23 were promptly made and pursued.

24 The original statements come in June and we see them

25 at RNI-213-022, Rosemary Nelson, and RNI-213-028 and




1 RNI-213-030, Colin Duffy. And at this point, please

2 note also that Rosemary Nelson makes no reference to

3 earlier patterns of behaviour. Could we look at

4 RNI-213-022, please (displayed)? I hope that's the

5 right reference. Yes.

6 Sir, this is a statement of 25 June about this

7 complaint and it focuses, as perhaps you would expect,

8 on the circumstances of it. There is no reference

9 during the course of it, as I say, to other complaints

10 or to the pattern of police behaviour which she

11 mentioned in her statement on 16 September.

12 Now, if we could turn over, please, to RNI-213-026,

13 this is a statement that I believe starts at

14 RNI-213-025. I hope it does. No. Can we try

15 RNI-213-024? No, it is obviously not my lucky day. If

16 we can go back to RNI-213-022, please (displayed) --

17 thank you very much -- this, as I say, is the statement

18 made at the time by Rosemary Nelson. And here, as

19 I say, she simply confines herself to addressing the

20 allegations which were raised at the time in relation to

21 Colin Duffy's detention.

22 You will remember that when commenting upon this in

23 her statement later, I think, on 16 September 1997, it

24 was put to her that Mr Lynch had made rather more

25 highly-coloured allegations about the treatment of




1 Colin Duffy in his letter of 30 June -- we needn't look

2 at that now -- which, if you remember in her statement

3 to P146, Rosemary Nelson did not accept; in other words,

4 rather consistent with what I was suggesting earlier,

5 she did not associate herself with the slightly more

6 florid, if I can put it that way, way in which Mr Lynch

7 set out the nature of the complaint.

8 And so on that basis then, the complaints made in

9 the course of the Duffy detention, they are made

10 promptly. For us, at a relatively low level, they are

11 put into the complaints system and, as I have suggested,

12 given that these should in theory be at the very heart

13 of the campaign, you may think that those are features

14 which are worthy of taking into account when assessing

15 how likely it is that these complaints and the others,

16 which came to be known about later in the year, were

17 part of the broader effort to engineer Colin Duffy's

18 release.

19 Sir, the next topic in the chronology and a matter

20 I want to look at is the Garvaghy Road assault. What

21 I'm going to suggest is that we start doing that

22 tomorrow morning. And so that you have an idea of how

23 I'm getting on, I hope to complete the Part 1 points and

24 start Part 2 by the end of tomorrow, finishing Part 2

25 and taking a run at Part 3 issues on Wednesday.




1 THE CHAIRMAN: Thank you. We will adjourn until quarter

2 past ten tomorrow.

3 (4.43 pm)

4 (The Inquiry adjourned until 10.15 am the following day)
























1 I N D E X

Closing submissions by MR PHILLIPS .............. 1