Return to the list of transcripts

Full Hearings

Hearing: 7th May 2009, day 127

Click here to download the LiveNote version
















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

on Thursday, 7 May 2009
commencing at 10.15 am

Day 127








1 Thursday, 7 May 2009

2 (10.15 am)

3 Closing submissions by MR O'HARE (continued)

4 THE CHAIRMAN: Yes, Mr O'Hare?

5 MR O'HARE: Thank you, sir.

6 Sir, just at the outset and by way of clarification

7 of a submission that I made yesterday, I have been

8 approached by my learned friend Mr McCollum in relation

9 to a submission that I made in relation to

10 Sir Ronnie Flanagan's involvement in the smear campaign

11 against Geralyn McNally.

12 Now, I have to acknowledge that there is an

13 alternative interpretation open to the evidence before

14 the Inquiry, namely that this evidence came from

15 a journalist who may have overstated matters and that

16 that interpretation is that the smear campaign followed

17 after those events. And there is an alternative

18 interpretation that Sir Ronnie Flanagan was not involved

19 in that. I have to acknowledge that as an alternative

20 interpretation and I think I have to acknowledge as well

21 that that matter wasn't raised when he gave his

22 evidence. I'm happy to do it.

23 THE CHAIRMAN: Thank you. Thank you very much.

24 MR O'HARE: Sir, at the close of play yesterday, I was

25 discussing the evidence of Brian Leeson in relation to




1 the interview of C204, and the point essentially was

2 that during that interview a police officer swore and

3 shouted at him and made as if to attack him. I also

4 raised the point that on the face of the document that

5 we have seen, there is certainly no suggestion on the

6 face of that document that this matter was canvassed or

7 rehearsed within the notes. That has a bearing, we say,

8 on the overall issue of the accuracy of recording

9 interview notes, and you heard a lot of evidence about

10 that, about what detectives would record.

11 Thirdly, we say the significant aspect of the

12 incident is this: that on the face of that document the

13 question of Rosemary Nelson's representation of this

14 client is being raised, apparently completely out of

15 context with what has been discussed at the time and

16 with no apparent reason for that. Now, that in itself,

17 we say, significantly calls into question the evidence

18 you have heard from the various detectives as to whether

19 or not such a thing would have occurred during

20 interview.

21 So overall, in our submission, what we say the

22 significance of the Leeson evidence is is that it is

23 evidence given from a direct source, the credibility of

24 whom cannot, in our respectful submission, be impugned

25 and it goes directly to the issues at the heart of your




1 considerations on this issue and on the issue of

2 complaints generally.

3 Sir, the final substantive matter that I'm asked to

4 deal with arising from Mr Myers' letter is this

5 question: it is the question of whether the matters

6 alleged in any way increased the risk to Rosemary Nelson

7 and what is the evidential basis for that.

8 Now, right at the outset, I have to acknowledge that

9 there can be no evidence and there could be no evidence

10 that there is any causal connection between what the

11 clients alleged had happened in the interview and what

12 happened in the dreadful murder of Mrs Nelson. I have

13 to acknowledge that at the outset of course.

14 The position is, we say, that the question of what

15 was said to a client in interview was a dangerous one

16 because the fear has always been that if certain things

17 might be said to a solicitor's client in interview, the

18 fear might be what might they say to people from the

19 opposing political viewpoint and who might wish ill will

20 towards those solicitors.

21 Now, this wasn't a new feature at the time of the

22 incidents we are discussing from 1997 on; this goes

23 right back to the case of Pat Finucane because that

24 allegation had been writ large in the Finucane case that

25 prior to his murder it was being suggested to Loyalist




1 paramilitaries that Finucane might be a good target.

2 That, we suggest, is a clear pattern which goes right

3 the way through the evidence from the early 1990s on,

4 and you have heard it again rehearsed in the evidence of

5 the various solicitors who have given evidence before

6 the Inquiry.

7 The point is an obvious one: you will recall that

8 when Douglas Hogg made his infamous remarks in the House

9 of Commons in 1989, Seamus Mallon MP immediately

10 responded during the same debate and -- I paraphrase --

11 he said:

12 "By your remarks you have immediately endangered the

13 lives of people working and living in Northern Ireland

14 tonight."

15 The point being an obvious one: that it was

16 recognised right away by Mr Mallon that to associate

17 a lawyer with his client so closely by suggesting undue

18 sympathy was extremely dangerous and gave potential

19 succour, excuse, justification to people who might wish

20 those people ill.

21 Now, if we can look --

22 THE CHAIRMAN: Are you suggesting with regard to that that

23 because of the history of Pat Finucane, the RUC should

24 have learned the lesson --

25 MR O'HARE: Yes, yes.




1 THE CHAIRMAN: -- and it should have --

2 MR O'HARE: Yes, exactly. That's exactly the submission we

3 make. And the Finucane case shouldn't be seen in

4 isolation from the Nelson case. We submit that the

5 evidence given by the various solicitors which you have

6 heard and read indicates that that was a pattern which

7 was being repeated to the best of their information,

8 those solicitors, right the way from the time of

9 Finucane all the way up to the time of Nelson. And

10 I was going to refer to you an extract from Mr McGrory's

11 evidence, sir, at RNI-925-070 (displayed). And, again,

12 I'm lifting this directly from our submissions for ease

13 of reference. Could you highlight the italicised part

14 of paragraph 14, please? This was from Mr McGrory's

15 statement. You will see that:

16 "Following Pat's murder, my father and I were

17 obviously extremely concerned about our own safety. We

18 therefore made our own enquiries as to whether we were

19 at risk. We approached a journalist who we knew quite

20 well and who we knew would have good Loyalist sources.

21 Pat had been murdered and the threats against us were

22 intensifying. We were now being told by our clients

23 that the interrogators at the holding centres were

24 saying things like, 'We got Pat Finucane and we will get

25 McGrory next', so we wanted to know the extent to which




1 we were actually at risk.

2 "The word came back via our journalist source that

3 the murder of Pat Finucane had been actively encouraged

4 by the RUC. We were told that the RUC were actively

5 denigrating defence lawyers to Loyalist prisoners and

6 saying things like, 'Why don't you shoot Barra McGrory

7 as well?' The message that came back to us was that

8 although the police would like the Loyalists to hit us,

9 we were not under a direct threat because the Loyalists

10 felt they had been used by the police in the

11 Pat Finucane case and because so much heat had been

12 generated following that murder."

13 He was asked in his oral evidence then what about

14 this suggestion at the very end, namely that because so

15 much heat had been generated by the Finucane case, did

16 that allay your fears. Perhaps if we could just scroll

17 down the same page, please. There is again an

18 italicised part that I would like to highlight.

19 Mr McGrory put it in this way:

20 "Well, if it was a comfort at all it was only that

21 we needn't think that we were being immediately targeted

22 because of the heat that had been generated by Pat's

23 death. However, it was a cold enough comfort because we

24 felt that we had nonetheless been exposed by, it would

25 have appeared, the police to potential attack from




1 people who clearly had the capacity and the will to

2 murder people."

3 So that reflected Mr McGrory's experience and fears

4 right the way through, in our respectful submission.

5 You had further evidence of that from Mr Ware,

6 John Ware. You will recall he gave evidence on Day 31.

7 He was explaining his interest in the Nelson case and

8 the aftermath, and very briefly if I may just indicate

9 that he regarded the Nelson murder as being a seminal

10 moment in the events of Northern Ireland. He said that:

11 "There were allegations of collusion, some of them

12 seemed familiar to me anyway insofar as there had been

13 allegations that Mrs Nelson had been threatened in

14 various ways and remarks had been made about her and her

15 clients and her motivation. And these come, as I say --

16 echoed the sorts of comments that I am personally

17 persuaded were made in the weeks before the murder of

18 Mr Finucane."

19 You will recall, sir, that the basis for that view

20 on his part was conversations that he had had with

21 a named Loyalist terrorist at that time.

22 We submit that it has always been clear that

23 a potential for danger might arise in this type of

24 scenario where remarks and threats are being made, and

25 we have seen in particular how the comments made in the




1 Cumaraswamy Report had an immediate impact and caused

2 consternation. On their face, the documents indicated

3 that senior management, as we discussed yesterday, held

4 a view that certain solicitors were sympathetic to the

5 paramilitaries.

6 Now, it is not just on the part of lawyers or on the

7 part of journalists that this perceived danger is seen.

8 Christine Collins, when she gave her evidence, she said

9 that when she received the draft copy of the Cumaraswamy

10 Report, what struck her immediately was the naming of

11 solicitors. In particular she felt that naming

12 Rosemary Nelson in the context of her complaints and

13 coupled with the controversial comments which had been

14 attributed to Sir Ronnie Flanagan, put her at risk. Her

15 public profile -- Rosemary Nelson's public profile --

16 was such that her name would be connected with the views

17 expressed in those reported remarks.

18 So that was an immediate recognition on

19 Christine Collins' evidence that she saw the danger

20 associated with this. There's a clear recognition that

21 a risk is created thereby. And you will recall as well

22 that whenever this matter was put to Mr Cumaraswamy,

23 coupled with the denial -- two things were put to him:

24 Firstly, there is a risk being created here; secondly,

25 Sir Ronnie Flanagan denies that he said it.




1 Mr Cumaraswamy himself reflected on it and his evidence

2 was that given the potential for risk, that was the

3 basis of basis on which he decided to amend his report

4 and change it.

5 Now, in the context of the evidence before this

6 Inquiry it is in that context, we respectfully submit,

7 that the allegations of Trevor McKeown should be

8 considered. Now, at the outset, sir, I have to

9 acknowledge that it is entirely proper that those

10 allegations be treated with a great deal of care by the

11 Panel. But we submit the following factors are worthy

12 of consideration.

13 The submission is made that Mr McKeown is

14 a convicted murderer and that, therefore and ipso facto,

15 the Panel should disregard his evidence. One contrary

16 view might be that because he is such a person, that's

17 why, if his allegations are true, the question of

18 suggesting to him or soliciting the question of the

19 murder of Rosemary Nelson is so dangerous. In our

20 written submissions, we acknowledge that this man didn't

21 give evidence and that, therefore, the Panel will be

22 circumspect about his evidence. What we submit is that

23 his allegations are illustrative of the dangers that

24 might arise should such things be said in interview.

25 Now, the point is rightly made that Mr McKeown's




1 allegations did not arise for some six years after his

2 conviction. But it is right to say that those

3 allegations, I think, were repeated to the journalist,

4 they were repeated to Mr Provoost and they were repeated

5 in the statement to this Inquiry within the last couple

6 of years. We don't know why Mr McKeown did not attend

7 to give evidence and we can't speculate upon it, but

8 certainly on the face of it, up to the last couple of

9 years, he had made a consistent story from the point six

10 years after the incident and he had repeated it both to

11 the Murder Investigation Team and to this Inquiry.

12 The fact of the matter is, sir, that the evidence

13 should not be consigned, as it were, to the dustbin and

14 disregarded altogether, not least because the evidence

15 is that officers who feature largely in the other

16 complaints were involved in this allegation. I don't

17 think I can put the matter any further than that and

18 I accept and acknowledge that there are infirmities in

19 the evidence. I accept that on the face of the notes

20 that the Panel has seen that this matter would not

21 appear to have been raised on the face of the notes

22 provided to the Inquiry from his solicitor, but

23 I respectfully submit that the evidence should give the

24 Inquiry pause for thought on this issue.

25 Sir, if I can just conclude my part of the




1 submissions by making the following points, and it is

2 really to summarise our submissions on the two

3 substantive issues raised in Mr Myers' letter.

4 The suggestion made is that so far as

5 Rosemary Nelson's relations are concerned, they

6 deteriorated in 1997 as a direct result of her

7 representation of Colin Duffy and that the change in

8 attitude came from Rosemary Nelson. We submit that's

9 clearly contrary to the weight of all the evidence you

10 have heard. It would ignore, we respectfully submit,

11 the evidence that Rosemary Nelson was raising matters of

12 expressions of hostility toward her in late 1996,

13 in February 1997, well before those dreadful murders in

14 Church Walk.

15 In support of the proposition, the PSNI point to

16 some vague evidence that Rosemary Nelson herself, to

17 a limited amount of officers, appeared to have a change

18 in attitude towards them, having been friendly at one

19 point and then somewhat distant or cold thereafter.

20 Now, none of them, to the best of my recollection, could

21 time it, save that one may have said that it came at

22 about the time when she was representing high profile

23 clients. But to take that and to elevate that, as it

24 were, to a status which we say it ill deserves is to

25 completely overstate it. And we put this in context: if




1 Rosemary Nelson had heard of some of the dreadful things

2 that were being said about her by various police

3 officers in custody, if it is right, as we say

4 respectfully that it is, that she had been assaulted

5 physically and abused in a sectarian fashion on the

6 Garvaghy Road in July 1997, one can well understand why,

7 as a result of those matters, Rosemary Nelson's attitude

8 may have hardened towards police.

9 That, in our respectful submission, would have been

10 perfectly understandable given what she was being told

11 and that, we respectfully submit, is a much more likely

12 proposition than the proposition that she herself had

13 such a fundamental change in attitude that once she was

14 instructed in the Duffy case, her attitude towards

15 people politically, socially and in every way changed

16 dramatically. That isn't born out, in our submission,

17 on the face of the evidence.

18 To accept that proposition, we say, would be to

19 ignore the evidence of in particular various members of

20 her staff, and I referred in particular to the evidence

21 of Brian Leeson, not only in relation to C204 but in

22 relation to his work on the Duffy case generally, and

23 also the evidence of Ita McCrory, Bernadette Bradshaw

24 and Annette Sheridan, all of whom on their evidence

25 given before you indicated that they experienced




1 hostility from the police going about their work on

2 behalf of Rosemary Nelson's practice.

3 The second substantive issue, the question of the

4 complaints and related matters, we say is a follows: the

5 suggestion has been made consistently and, in fairness,

6 was made at the time by the various police officers

7 here, that the allegations made by Rosemary Nelson's

8 clients were simply a campaign to discredit the RUC.

9 Where is the real evidence of that? The suggestion is

10 that these people were all Republican suspects, they

11 were all from the locality and that some of them knew

12 each other. That is the extent of the suggestion that

13 is made.

14 As against that, we say that the allegations they

15 make follow exactly the pattern conveyed by the evidence

16 of solicitors from throughout this jurisdiction, and on

17 their evidence that sort of behaviour had been going on

18 for years.

19 So to that extent the evidence, we submit, given by

20 the various clients is exactly in keeping with the type

21 of thing that was being said historically for a period

22 of years before the incidents with which we are

23 concerned.

24 Now, if the Panel accepts that their evidence might

25 be correct, it is quite clear that the things that were




1 being said to them went much further than being an

2 interrogation tactic. They were an expression, in terms

3 of the intensity of the emotions that they conveyed, in

4 terms of view that they conveyed, that the police

5 officers had about Rosemary Nelson. They went much

6 further, we respectfully submit, than being a mere

7 interrogation tactic or, indeed, sir, being an

8 expression of frustration. They represented, we

9 suggest, an expression of downright hostility towards

10 Rosemary Nelson and that, we say, is echoed in the

11 evidence given, for example, in relation to the

12 Garvaghy Road assault and you see it elsewhere in the

13 evidence.

14 Now, we say that -- and in direct response to one of

15 the questions -- the Panel has every reason to believe

16 that senior management of the RUC were aware of these

17 matters at the time, given that the Finucane case had

18 been documented so extensively, given what we say was

19 the state of knowledge, as it were, given the matters

20 that were being raised by Jane Winter. And we say that

21 if the practice was going on, as we suggest you should

22 find that it was, it was a practice which was inherently

23 dangerous for the reasons I have outlined.

24 Those dangers were recognised not just by lawyers,

25 by journalists, but on the face of the evidence that you




1 have heard, they were immediately recognised by the NIO

2 in the form of Christine Collins and also, we

3 respectfully submit, they were expressly recognised in

4 the paragraph -- paragraph 21 -- of Mr White's critique

5 of the Cumaraswamy draft report, and we saw that

6 yesterday.

7 So at that stage Mr White himself said this has

8 echoes with the Douglas Hogg scenario and he made that

9 point himself expressly.

10 Now, as I have acknowledged we cannot say and we

11 don't make that submission, that the Panel can find any

12 causal link between what was happening to Rosemary

13 Nelson's clients and what ultimately happened to her.

14 No one could ever make that submission. But what we do

15 say is that it was widely recognised that there were

16 significant dangers in this sort of thing going on and

17 they were dangers that were recognised at a senior level

18 of the RUC.

19 Sir, unless there are any other questions, that

20 completes my submissions.

21 THE CHAIRMAN: Mr O'Hare, we are extremely grateful for your

22 submissions, thank you very much.

23 Mr Harvey, would you like to start now or would you

24 like a break?

25 MR HARVEY: I would like five minutes --




1 THE CHAIRMAN: We will have a quarter of an hour break,

2 I think.

3 MR HARVEY: I'm obliged.

4 (10.43 am)

5 (Short break)

6 (11.05 am)

7 Closing submissions by MR HARVEY

8 THE CHAIRMAN: Yes, Mr Harvey?

9 MR HARVEY: Sirs and madam, might I say that it is my

10 intention to cover a number of matters. The first

11 matter which I will cover is exampled in the oral

12 submissions of Mr Beer, namely that Rosemary Nelson was

13 just simply an anonymous statistical level-down

14 individual at the same risk of hundreds of thousands of

15 people within Northern Ireland and, therefore, it was

16 unnecessary to ascribe to her any of the facilities

17 which were available through the Government or through

18 the police to offer her or afford her protection.

19 I will do that by addressing firstly the level of

20 threat that is posed by Loyalist paramilitaries and the

21 understanding of their nature which existed throughout

22 the Northern Ireland Office, the senior levels of

23 policing and local levels of policing. I will then go

24 on to establish, so far as I can through the evidence,

25 the position that she occupied in the Loyalist mentality




1 within the area in which she lived. I will then go on

2 to deal with the written submissions of the

3 Northern Ireland Office. I will deal with those

4 particularly in relation to chapter 9. I will then go

5 on to deal with the oral submissions. And finally, as

6 the police have not seen fit to address the substantive

7 issues which have been raised by the written submissions

8 of the families, I do not intend to go into those in

9 detail, but I will deal with some of the intelligence

10 information, particularly the intelligence information

11 within the Lurgan area and the growth and development of

12 that intelligence, particularly from the end of 1994

13 through to her death in 1999, with particular reference

14 to the development through the Army, which appeared to

15 be the principal source of information through 1996

16 until, it would appear, at the end of 1996/beginning of

17 1997 Special Branch appear to have taken the lead with

18 the Army disappearing.

19 And one of the matters I will ask you to

20 particularly note in dealing with the intelligence is

21 that each time there is an observation by the Army

22 throughout 1996, the observation is accompanied by

23 a speculative interpretation which is damaging and

24 damning of Rosemary Nelson.

25 And finally I will seek to demonstrate to you that




1 there is a link between the intelligence which has been

2 developed by the Army and that which is subsequently

3 developed within the Special Branch locally.

4 In terms of my ultimate questions, I will address

5 the matters which the Panel have expressed concern, but

6 I hope perhaps throughout to help interpolate those

7 questions into my oral submissions, particularly -- and

8 a point that was developed by my learned friend

9 Mr O'Hare -- that the causal link between her death and

10 the information which was available within the Loyalist

11 community through the documentation which was available

12 to the Northern Ireland Office would tend to indicate,

13 because specifically if one comes to deal with the

14 "Monster Mashed" document, there are elements within

15 that which are specifically reflective of intelligence

16 which is recorded and could only have either come from

17 the Loyalists providing that information to the

18 Special Branch, who recorded it, or the Special Branch

19 themselves providing it to the Loyalist community.

20 If I may start, in dealing with the position I would

21 like to refer to Mr Beer's position in relation to the

22 Northern Ireland Office and what I would respectfully

23 submit, if we could look at Day 122, page 22, where

24 a number of questions were posed by the Chairman and the

25 responses of the Northern Ireland Office.




1 I wonder could that be called up? It is Day 122 --

2 is it not --

3 MR MCGIBNEY: No, sir, we can't call up transcripts.

4 MR HARVEY: I apologise then. Bear with me, I will try and

5 get the hard copy.

6 THE CHAIRMAN: Is there any problem about getting --

7 MR PHILLIPS: Yes, sir, there is. We can't display the

8 transcript on our system. What we could do -- and it is

9 bold for me to be making an IT suggestion, but what we

10 could, I think, do is to get access the Internet on your

11 computers and there find the relevant part of the

12 transcript. We could. I think that might be a good

13 idea rather than having to use hard copy. Would that

14 help?

15 MR HARVEY: I believe that it would. It is Day 122.

16 DAME VALERIE STRACHAN: Roughly whereabouts?

17 MR HARVEY: Page 22, line 7.

18 DAME VALERIE STRACHAN: Right. It starts with the Chairman:

19 "But surely nobody could reach a conclusion?"

20 MR HARVEY: Yes.

21 THE CHAIRMAN: Which version do we have? Do we have the

22 LiveNote version or the website version?

23 MR PHILLIPS: The website you can get access to on your

24 laptop.

25 DAME VALERIE STRACHAN: I have got it straight from




1 LiveNote.

2 MR HARVEY: It is page 22.

3 THE CHAIRMAN: The page begins:

4 "What Miss Collins was saying ..."

5 MR HARVEY: That's correct.

6 THE CHAIRMAN: Yes, thank you. Which line do you want us to

7 see?

8 MR HARVEY: Line 7:

9 "THE CHAIRMAN: But surely nobody could reach

10 a conclusion that Rosemary Nelson was under no threat at

11 all. You might well reach a conclusion that she was

12 under no specific threat at the time or even possibly no

13 significant threat, but that she was under no threat

14 would be a bizarre and irrational conclusion. If you

15 are saying that Anne Colville took the view that she was

16 under no threat and if you are under threat of any kind,

17 bearing in mind her particular job, surely she needed

18 advice, didn't she, on security protection for herself?"

19 "MR BEER: I think there are probably three answers

20 to the question that you raised, sir.


22 "MR BEER: The first and the most basic is that it

23 isn't in fact what the police reply said, if we can have

24 it up. It is the second line and the second paragraph

25 starting:




1 "'Apart from what has been stated in the USA,

2 Senator Torricelli's letter, we presently have no

3 evidence to support the contention that the threat had

4 recently become more consistent and ominous causing

5 Ms Nelson to fear for her safety.'"

6 I just interpose there. One will appreciate that

7 Senator Torricelli's letter was never threat assessed;

8 it was simply passed back to the Secretariat, who gave

9 the impression that there had been an assessment by

10 stating: there is nothing to support the contention that

11 the threat had recently become more consistent.

12 Now, the underlying implication of that is that

13 there is a threat, but it is not necessarily a more

14 substantial or significant threat than had already

15 existed, but that doesn't appear to have caused any

16 difficulty. But if one comes on to the further matters:

17 "I appreciate the point that you make, sir, because

18 in a subsequent exchange words very similar to those

19 which you have used were used, and that takes me to the

20 second answer."

21 Now, I really don't understand how that is a first

22 answer. But nonetheless it is the answer that the

23 Northern Ireland Office have proposed to the question

24 that she couldn't have been under any threat. The

25 second answer is that:




1 "All the NIO witnesses that were asked about this

2 said of course they appreciated that everyone within the

3 Province was under a threat simply by dint of the

4 circumstances of the day. What they read the

5 correspondence as reading is that in light of the issues

6 that had been raised in their own letters of request,

7 the reply said that there was no specific or particular

8 threat to this individual otherwise they would have said

9 so, because they had received other correspondence which

10 used exactly those words. So it is the absence of such

11 statements that it is significant. It didn't need the

12 specific phraseology or terminology that you have

13 alluded to, sir, to satisfy the NIO official of the

14 answer."

15 Now, again, I'm not entirely clear as to precisely

16 how it is an answer to the question that was posed by

17 the Chairman, but if it is an answer, it seems to be on

18 the basis that, again, Mrs Nelson fell into an amorphous

19 group of individuals who, simply because of their

20 religion and circumstances in which they lived, were

21 under a threat which was non-specific and, because it

22 was non-specific, non-predictable, non-determinative and

23 therefore no action that any government could take could

24 deal with it. What I submit is that that simply isn't

25 the case.




1 The important matter in relation to this -- and I

2 will come on to deal with it in some detail later -- is

3 quite simply that there had to be -- if the basis of the

4 intelligence that has been produced before this tribunal

5 is correct and the evidence of the witnesses who have

6 produced it is correct, there could never have been

7 a specific threat to Mrs Nelson or anyone else from

8 Loyalist paramilitaries. What, therefore, had to be

9 assessed was the level of threat the individual was

10 under based upon the risk which they faced and the

11 vulnerability that they had to that risk.

12 Quite simply, Sir Ronnie Flanagan indicated in his

13 evidence that if you don't have plans, it is impossible

14 for us to have prior intelligence. This is not an

15 intelligence failure; it is simply a recognition of

16 fact. He said that at Day 100, page 56, lines 4 to 15.

17 In terms of assessing threats, the evidence as it

18 was opened to this tribunal, would have tended to

19 suggest that it was a much more prosaic and

20 sophisticated procedure than actually the evidence

21 established. The evidence would appear to have

22 established firstly that complaints, as they were

23 received by the NIO, were received into Police Division.

24 Police Division in terms of its hierarchy had a number

25 of responsibilities, which included complaints and KPPS.




1 And they were received into complaints. No one in

2 complaints had, it would appear from the evidence, any

3 knowledge or understanding of how threat assessments

4 were conducted, other than a view that it had to be an

5 elaborate, sophisticated system, the oversight of which

6 they lacked the expertise to effectively control. And,

7 therefore, once they put it into the system, the

8 expectation was that it would be properly dealt with.

9 But it was when B144 came to give his evidence, it

10 was clearly established that, whilst everyone within the

11 system considered E3C to be the experts, they had

12 absolutely no expertise in threat assessment. Their

13 expertise was simply in determining whether or not there

14 were intelligence reports.

15 Therefore, the important evidence of B144 was quite

16 simply that the lack of a specific threat didn't mean

17 there wasn't a specific threat; it just simply meant

18 there was no coverage within the system of a threat

19 because there were deficiencies in the intelligence.

20 Now, that, one would have thought, would have

21 immediately sparked the understanding that because of

22 the deficiencies in the intelligence available in

23 relation to the activities of Loyalist paramilitaries,

24 the risk that the individual was being exposed to would

25 have to be assessed by someone with knowledge and




1 expertise and understanding of how those organisations

2 worked. And what I respectfully submit is that when one

3 comes to deal with the Loyalists, there is absolutely no

4 doubt whatsoever from a broad range of witnesses that

5 no one believed that the Loyalist organisations were

6 other than a group of murderers, sectarian, highly

7 motivated individuals, but not specifically

8 sophisticated in terms of the planning or execution of

9 their assassinations and murders.

10 That underlies any threat assessment. You have to

11 assess the person who poses the threat against the risk

12 that the individual may face.

13 In terms of the Northern Ireland Office's approach

14 to this, it was opened by Mr Beer in his oral

15 submissions by reference back to Osman, by reference to

16 Van Colle and Smith, to Brooks, and what Osman and

17 those cases clearly established is that the

18 unpredictability of human nature is such that no

19 government can be expected to accommodate within its

20 system for management of threats and risks every

21 potential risk that every citizen faces. But the

22 individuals that were concerned in those cases were

23 individuals -- and particularly if one refers to the

24 Van Colle because it is an exemplar of this type of

25 difficulty which government or agencies face.




1 It was a low level crime unlikely to attract

2 a custodial sentence by an individual with no real known

3 propensity for violence and yet it ends up in a murder,

4 and the quotation from the Osman case is quite

5 literally:

6 "Because of the unpredictable nature of individuals,

7 it is not possible to have a failsafe programme for

8 protecting each and every citizen."

9 That is not the case of Loyalists. It is a complete

10 misapplication of the principle to suggest that because

11 they were unpredictable, that therefore threats could

12 not be met or dealt with. The unpredictability was not

13 in their intention, it was not in the extent of the

14 danger that they posed, it was not in the fact that they

15 lacked murderous intent. The unpredictability,

16 unfortunately, was when the risk would crystallise and

17 when the individual and the circumstances in which they

18 would be murdered.

19 In terms of the Loyalists, the security services,

20 S519 indicated that they were braggarts, they were not

21 sophisticated or highly developed in their plans, it was

22 difficult to get intelligence upon them but they were

23 a group of murderous individuals. S597, who was head of

24 the IMG, indicated there was a short time between their

25 plans and the execution. They were difficult to




1 infiltrate. They had a total disregard for human life,

2 they were ruthless and that Rosemary Nelson was a likely

3 target.

4 Drumcree, he indicated, made it more likely that

5 sectarian flare-ups would occur. And in that, again,

6 there was a degree of unpredictability in their response

7 and behaviours. S703, again from the Security Service:

8 they were a large group, they would consider, for

9 example, legitimate targets as people such as

10 Rosemary Nelson, they would suggest that, as far as they

11 were concerned, there was murder, pipe bombs, access to

12 others who had more sophisticated capability that they

13 themselves had. They were -- B542: they were Loyalists,

14 obviously unpredictable, difficult to gather

15 intelligence on. Colonel Loudon from the Army: they

16 were unpredictable, their favourite method of

17 assassination was close quarters. Constable Walker: the

18 UVF, they were very active, they were murderous, they

19 murdered Catholics. Sir Ronnie Flanagan, again, who has

20 indicated that it was impossible to know their plans:

21 they were difficult to gather intelligence on but they

22 themselves were a murderous group of individuals. B632,

23 special Branch officer working at Portadown, again

24 indicated they were just killers, no planning, murder of

25 a lot of Catholics within this area, they were




1 unpredictable, difficult to gather intelligence on.

2 Now, the first thing is that this was understood and

3 appreciated within the Northern Ireland Office and it

4 was understood and appreciated throughout its highest

5 levels. One of the matters which I will come to deal

6 with when I reply to the oral submissions and the

7 written submissions in particular of the NIO is that

8 during the conversation which took place on

9 27 October 1997 between Param Cumaraswamy and

10 John Steele, Param Cumaraswamy, it would appear, was

11 meeting John Steele after the meeting which had occurred

12 with the Chief Constable, Raymond White, the

13 Assistant Chief Constable and P157.

14 Param Cumaraswamy at that meeting had it revealed to

15 him, we now know -- irrespective of whether it was

16 Ronnie Flanagan or White -- that there was a trenchantly

17 held view within the highest levels of the police force

18 that solicitors appearing for Republicans were promoting

19 their agenda. That caused undoubtedly some significant

20 concern for the Special Rapporteur.

21 John Steele was meeting him within with five days,

22 the 27th, and John Steele's view was that

23 Param Cumaraswamy came with fixed views and he described

24 him as behaving more like an NGO than a high UN

25 official. During the course of the meeting the




1 conversation obviously concerned at one stage

2 Pat Finucane. John Steele attempted, it would appear,

3 to engage Param Cumaraswamy, who at that stage appeared

4 to be satisfied from the evidence available to him that

5 there was collusion in the death of Pat Finucane, and

6 what John Steele indicated in his evidence was that he

7 attempted to engage him as to the unpredictable nature

8 of Loyalists. Loyalists would simply go and get a gun

9 and kill any individual whom they had it in mind to.

10 Now, that shows, firstly, two aspects of this

11 conversation: firstly, that within the NIO there was

12 a cultural feeling that NGOs, when they raised the

13 issues of solicitors, were doing so not as against

14 a background based in hard evidence and fact, but were

15 doing so, as it were, almost on a bandwagon effect on

16 the death of Pat Finucane, which he, in 1997, was still

17 trying to suggest occurred without collusive actions on

18 behalf of the security forces at multiple levels. That,

19 as we all now know, was simply a fallacious, incorrect

20 and wholly inaccurate position to hold.

21 The prosecution of Mr Stobie in 2000, his death at

22 the end of his acquittal within a week of having been

23 released when he was murdered by Loyalist

24 paramilitaries, in the course of that case it was

25 established that Mr Stobie had been a police agent for




1 a long number of years, he had supplied the gun that had

2 been used to murder Pat Finucane, he had informed his

3 handlers that that was happening, the gun had been

4 obtained from the Malone Road TA barracks. It had been

5 obtained by an ex-UDR man. After the murder, the weapon

6 was allowed -- although the police knew where it was --

7 to remain at large. When it eventually was recovered it

8 was put into the forensic science laboratory. When it

9 was put into the forensic science laboratory it was

10 taken out, disappeared, broken down. It was established

11 that at the meeting that decided on the death of

12 Pat Finucane a substantial number of those present were

13 in fact agents of different handling security force

14 personnel.

15 The difficulty for John Steele is that while he

16 ascribes to the NGOs a naive closed mind approach, it

17 would appear that his approach was every bit as narrow

18 and closed minded. And what it does suggest,

19 I respectfully submit, is the failure to understand the

20 consequences of failing to take action against police

21 officers who were disseminating material which was

22 potentially damaging to the interests of a solicitor in

23 the exercise of her profession and, secondly, her life

24 in that capacity.

25 During the course of his evidence, John Steele




1 called into question firstly the NGOs. British Irish

2 Rights Watch were unbalanced, the other NGOs were naive,

3 they were promoting -- and he accepted at the end of the

4 day that they were vulnerable to their organisation

5 being exploited by Sinn Fein -- Param Cumaraswamy, whose

6 credentials have been set out, was an individual, again,

7 whose visit he did not welcome and he made that clear in

8 his evidence. But while he did not welcome, he was

9 prepared to facilitate. When he met him on the 27th, he

10 met him with a firmly closed mind and it would appear

11 that the allegations contained in Mr Param Cumaraswamy's

12 report, including the suggestion that Ronnie Flanagan

13 had himself expressed views detrimental to the position

14 of solicitors within the criminal justice system, only

15 seemed to confirm it more.

16 So what I respectfully submit is if one is looking

17 for a culture in the Northern Ireland Office as to the

18 their approach to these matters, then all that one could

19 describe it as is complacent and a complacency which

20 epitomised their approach to threat assessments. When

21 the Chairman posed the question to Mr Beer, how could it

22 be said there was no threat, there was no specifically

23 known threat, which is vastly different from there being

24 no threat.

25 How could it be that NIO officials who were dealing




1 with this issue over a long period of years, could have

2 come to the conclusion that quite simply the threat from

3 Loyalists was just so unpredictable that there really

4 was no advantage to be gained in properly assessing risk

5 to the individuals who may well have come under its

6 notice to their disadvantage?

7 What I respectfully submit, however, is that it was

8 just simply that, then complacency, given what it is,

9 was of itself a significant structural failure within

10 the NIO.

11 As was indicated -- and perhaps if it was overstated

12 within our submissions, I apologise -- that the NIO are

13 responsible for policing in Northern Ireland. Placed by

14 John Steele, he quite simply said, "We in the NIO are

15 responsible for the procedures. We are responsible for

16 the structures and we are responsible for the

17 legislation which governs those structures." And

18 John Steele unfortunately showed a degree of imagination

19 in dealing with these matters that was not reflected in

20 the NIO submissions, either orally or written, because

21 quite simply his evidence to you was that had they

22 considered that there was a real threat, then he had no

23 doubt that the NIO would have taken steps to apply the

24 KPPS to Rosemary Nelson or to ensure that she made an

25 application to it.




1 That, I respectfully submit, comes back to what they

2 understood in relation to the nature of the threat posed

3 to Rosemary Nelson. Her position was well recognised

4 and it was well recognised by virtually all of those at

5 all levels through the NIO and the Police Service of

6 Northern Ireland and the RUC, as it then was.

7 B144, who ran the registry, did not consider himself

8 to be an expert on threat assessment. When he came to

9 give evidence at Day 64, page 99/1 -- I wonder could we

10 call that up?

11 THE CHAIRMAN: Did you say Day 91?

12 MR HARVEY: Sorry, Day 64, page 99.

13 THE CHAIRMAN: Just a moment. (Pause)

14 DAME VALERIE STRACHAN: It is not a quick process, I am

15 afraid.

16 MR HARVEY: In that case I will give you the references and

17 perhaps you can deal with them.

18 That he indicated that he was not surprised that --

19 sorry, he was surprised that Rosemary Nelson did not get

20 threats every day of the week because of the hostility

21 to her within the Loyalist community. The period of

22 Drumcree was high profile, but it did not add to the

23 threat and the risk that she was already under. He did

24 indicate then that he believed that people who issued

25 death threats may not necessarily be those who would




1 leave their own home.

2 Again, there is a degree, I believe, of huge

3 complacency in the attitude which is displayed

4 throughout the Northern Ireland Office and the police

5 service in relation to these death threats, particularly

6 from Loyalists. Loyalists did advertise what they were

7 going to do on the gable walls of the estates that

8 anyone would have cared to walk through. The individual

9 under current threat's name would invariably be placed

10 there. Mr Stobie, before he was murdered, had his name

11 placed on the gable wall.

12 So what I respectfully submit is, irrespective of

13 that, if you are there and you know that you are dealing

14 with a group of murderous killers and within the

15 community in which they live there is a process of

16 conditioning, of acceptance within that community that

17 an individual's profile is such to suggest that they

18 themselves are operating as an agent against the State,

19 then that in itself immediately poses a risk to them.

20 That is the risk that was identified, if not by

21 Sir Ronnie Flanagan, by the Northern Ireland Office in

22 relation to the Cumaraswamy incident.

23 Sir Ronnie Flanagan indicates that he was primarily

24 motivated by the removal of his name. That is not the

25 motivation in the Northern Ireland Office. When they




1 engaged the services of the Foreign and Commonwealth

2 Office, when they engaged the mission of the UN in

3 Geneva, the motivation that was being put to

4 Mr Cumaraswamy was that the introduction of her name

5 into the public arena would immediately create a risk to

6 her life.

7 Now, that's a risk without a threat because, of

8 course, there is no indication that it would immediately

9 lead to information there was a specific threat. So it

10 was an acknowledgment that the risk is independent of

11 the threat when the information sources that you would

12 normally have in relation to threats is denied to you

13 simply because you do not have coverage.

14 What I respectfully submit, therefore, when one

15 comes to deal with B114, B114 is operating at a fairly

16 unsophisticated level. He was just simply running

17 a registry. But he knew that Rosemary Nelson was quite

18 literally a hate figure within the Loyalist communities

19 and that is the Loyalist communities generally.

20 He also indicated at Day 64, page 91, line 22, that

21 the Loyalists ran newspapers and websites where they

22 contained many of their propaganda against individuals.

23 And, again, it was part of the conditioning of the

24 Loyalist community in its widest sense to the acceptance

25 of information which it furnished as being accurately




1 reflective of the positions that they held.

2 It is also accepted by Kenneth Lindsay that he

3 believed her murder was related to Drumcree because it

4 was very high profile, certainly possible that it drew

5 attention to her and made her murder a possibility. It

6 is also important to know that the times that we are

7 talking about, when the threat assessments were being

8 made, there was a deep appreciation of the position

9 politically and her function and role within it. 1997,

10 when she comes, it would appear, firstly to the specific

11 attention in a concentrated way of the Special Branch,

12 is a particularly unpleasant year in that Robert Hamill

13 was murdered. He was murdered on 8 May. By the end of

14 that year, Billy Wright had been murdered. In 1997 the

15 complaints issue, it would appear, had sparked off from

16 the letter written by Jane Winter to Param Cumaraswamy,

17 again welcoming his mission to Northern Ireland and

18 pointing out particularly the difficulties that

19 Rosemary Nelson faced.

20 There were the difficulties in relation to the

21 Parades Commission, Drumcree itself, but at that time

22 Param Cumaraswamy was visiting, the difficulties with

23 the ICPC, all of these were features which projected her

24 into the headlines of not just simply the NGOs and not

25 just simply the Northern Ireland Office, but the




1 Loyalist community in particular.

2 When we develop that into 1998, there is the further

3 problem not only of the Parades Commission but the

4 Patten Commission, the belief within Loyalism that

5 coming up to the Good Friday Agreement by particularly

6 those of extreme views, they were being sold out and

7 that they were being sold out by a group of individuals

8 who had marshalled forces against the democratic

9 institutions of the State which they saw themselves as

10 supporting.

11 In 1998 there was the murder on 7 March of the two

12 individuals in Poyntzpass in a bar. And with the

13 passage of time it is perhaps easy to forget what

14 a catalyst that was within Loyalism. For the first time

15 it brought the leading politicians in Northern Ireland

16 together, both to attend that small village. That was

17 David Trimble and Mr Seamus Mallon. And Seamus Mallon

18 has described it as one of the most significant events

19 because it did produce a wedge in Unionism where

20 the difficulties that arose over 1998,

21 the difficulties in relation to the proximity talks, the

22 intervention of Tony Blair, the attempt to find

23 a solution to the Drumcree problem and then the murder

24 in Ballymoney of the three young Quinn children, where

25 David Trimble later indicated that he believed that




1 certain of the forces of Loyalists and Unionists had

2 disgraced themselves in terms of their behaviour in

3 Portadown -- and then subsequently the DUP conference

4 indicating that they were Loyalists, that they were

5 proud of it and they stood four squarely behind the

6 Portadown Orangemen.

7 Rosemary Nelson was right at the heart of all of

8 these events so far as the Loyalist community was

9 concerned. She represented Hamill who was killed -- his

10 family -- on 7 May 1997. Then there came the most

11 horrific, brutal savage murder of two police officers

12 serving their community in June of 1997, and what is

13 remarkable in terms of the attitudes at that time, if

14 you look at the intelligence, the intelligence that she

15 is alleged to be producing in terms of false alibis

16 isn't coming from the Special Branch, it comes from the

17 UDR.

18 The reply on 7 July, when Jane Winter wrote to

19 Mo Mowlam, she didn't just write to Mo Mowlam setting

20 out that Colin Duffy was innocent in a blanket way, she

21 provided him with the details of the so-called false

22 alibi that it was later alleged that Rosemary was

23 collecting. The graph containing the names of all of

24 the individuals, where they were and what they saw, was

25 advanced to Mo Mowlam at that very early stage.




1 So, therefore, when one comes to say was

2 Rosemary Nelson a hate figure, well, S703 thought she

3 was a hate figure within the Loyalist community.

4 Kenneth Lindsay considered that her involvement in

5 Drumcree create a high profile which would inevitably

6 lead to the conclusion by Loyalists that she was

7 sympathetic to their cause.

8 B516, as far as he was concerned, the Loyalist

9 community considered her guilty by association with

10 Colin Duffy. This was something that he picked up in

11 general conversation within the community. B511

12 indicated that the RIR had Loyalist contacts, including

13 Mr Fulton, and that they were concerned about those

14 contacts.

15 B632, who was a DC in Lurgan in Special Branch,

16 quite literally said, so far as she was concerned, that

17 the Loyalist action at Drumcree had a huge impact,

18 Billy Wright knew of her relationship with Colin Duffy

19 and that, therefore, that would be spread throughout the

20 Loyalist community. And B623, when he was questioned on

21 behalf of the Tribunal, was asked:

22 "The attitudes to Drumcree, how serious were they in

23 terms of the repercussions they had on the community?"

24 And he indicated that they had a very negative

25 impact within the Loyalist community so far as the




1 police were concerned. And at one stage there seemed to

2 be some confusion, because he indicated that he was

3 being shunned, that people who were aware of his

4 profession in fact were treating him in the most

5 negative way that was possible. And he was asked:

6 "Was that the agents?"

7 And he said:

8 "No, you are confusing my personal life with my

9 work. The situation is, this is how it was for me."

10 And Ronnie Flanagan, in terms of his evidence, gave

11 very significant evidence as to the impact on the lives

12 of police officers because of their perceived

13 treacherous activity in trying to uphold the decisions

14 that the Drumcree march was not to take place. Their

15 windows were broken, their children were intimidated,

16 many of them had to leave their homes. But these were

17 people perceived in Loyalist communities as individuals

18 who normally would have merited their support.

19 What I respectfully submit is that when one goes

20 down through all of the information, it is obvious to

21 anyone that Rosemary Nelson was held in the Loyalist

22 community in a position where they regarded her as no

23 different from a highly motivated Republican activist

24 hell bent on bringing down the State.

25 In terms of dealing with this, it was well aware to




1 the Government, G105, that there were leaflets

2 circulating in the community, that there was, it was

3 believed by desk officers -- again, 703 -- that as far

4 as the individuals within the Loyalist community, they

5 regarded her as sympathetic to the Garvaghy Road

6 Drumcree Republican case. As far as others were

7 concerned, it was quite obvious that the Loyalist

8 community made no distinction between her and her

9 clients.

10 So one comes to say, if one is assessing any

11 independent risk or threat to Rosemary Nelson, how could

12 it be said that the threat to her and the risk to which

13 she was exposed were the same as any other member of the

14 Catholic community, or the community in general?

15 I respectfully submit that is not simply complacent, it

16 is a complete failure to understand the forces that were

17 at work in the area of Lurgan throughout the period of

18 1996 to her tragic death in 1999.

19 The threat was a real threat. That was acknowledged

20 by Mr Beer because she was murdered. But the threat was

21 a subsisting and continuing threat over a long period of

22 time. The fact that the threat crystallised in the

23 action which the Loyalists took in March 1999

24 unfortunately does not excuse the failure of the NIO or

25 the failure of the police to firstly concentrate on the




1 threat, not whether there was a known specific threat at

2 a particular point in time, and secondly, there was

3 never any attempt to assess the risk, which any

4 individual possessed of the information which the police

5 service and the Northern Ireland Office were possessed

6 of collectively, could have only led to the conclusion

7 there is a risk.

8 Now, how extensive and significant is that risk?

9 And one does know with Loyalists that the more

10 vulnerable the target, the more likely the execution of

11 the individual. The preferred targets, of course, were

12 the individual just walking the street, going about

13 their normal business. But they did like the

14 spectacular targets because to a large extent that

15 tended to mask the sectarian nature of many of the

16 murders in which they were involved. It tended to

17 improve their credibility within the communities in

18 which they operated.

19 Rosemary Nelson was an exceptionally vulnerable

20 target. That was recognised by the head of the IMG,

21 S597, when he indicated in his evidence:

22 "The preferred targets would have been

23 Mac Cionnaith, Colin Duffy, Rosemary Nelson. But she

24 was the most vulnerable.

25 Now, one of the problems that one has in dealing




1 with this particular matter is that if you don't take

2 the threat seriously, then of course there is no risk.

3 But if you don't understand the nature of threat, you

4 can never come to a proper conclusion on the nature of

5 risk. Now, that is what has happened within the whole

6 of the process of threat assessments.

7 Therefore, what I respectfully submit, if one moves

8 into the area, anyone applying their mind

9 conscientiously to the question of Rosemary Nelson and

10 her safety couldn't have but failed to do it as against

11 the background of her position in terms of the

12 psychology of Loyalists and the potential responses of

13 Loyalists to that.

14 The question, therefore, is, as the Chairman put,

15 how could anyone have come to the conclusion that she

16 was under no threat? The high profile which she

17 occupied over a period of years, the individuals she

18 represented and particularly Colin Duffy -- Colin Duffy

19 is of significance and he is of significance quite

20 literally because she represented him, it would appear,

21 from a period some time in July 1994 until her death.

22 Whatever the legal processes in terms of his guilt or

23 innocence of the three murders with which he was

24 charged, the mythology within the community from which

25 he came was not in any way affected by acquittals. He




1 would then have been a significant figure, well-known

2 within both the Nationalist and the Loyalist community,

3 where the opinion on him would have been gravely

4 divided. He would have been seen within Loyalists as

5 little more than the naked executioner operating on

6 behalf of the IRA which he controlled. That is the

7 reality of Mr Colin Duffy in the minds of Loyalism.

8 NGOs and lawyers, they take technical views that he

9 has been found not guilty and, therefore, he must be

10 presumed to be innocent. Those presumptions don't work

11 in everyday life in everyday communities and they

12 certainly didn't work and operate in Lurgan and

13 Portadown throughout 1996 to 1999.

14 So the Northern Ireland Office, how did they deal

15 with these threats? I will revert to this, but I would

16 just like to point out that in their oral submissions,

17 in their written submissions, although it was pointed

18 out by the families that the view of Christine Collins

19 was that NGOs were operating not simply on the basis of

20 bringing to the attention of the Northern Ireland Office

21 specific matters and issues which they expected them to

22 address, the view was that in fact they were anti-state

23 and that their culture was one of an attack upon the

24 existence and the legitimacy of the State in

25 Northern Ireland. And to a large extent, because of the




1 fact that the complaints were coming not from

2 Rosemary Nelson herself but through those NGOs, she

3 associated Rosemary Nelson with that attitude.

4 Surprised, given the detail that the

5 Northern Ireland Office did go into, that they suggested

6 there was no evidence of a culture in the NIO which

7 would have been antipathetic to Rosemary Nelson, that

8 that wasn't addressed. But I will address it.

9 Before I do so, what I would like to do is go to the

10 written submissions of the NIO, and in doing so, I would

11 also like to refer to the oral submissions and how these

12 were dealt with. And this is in particular chapter 9.

13 The NIO in its written submissions in a broad swathe

14 way -- and I hope I don't do them an injustice -- is

15 quite simply that Rosemary Nelson was not either

16 interested in, nor genuine in her approaches through the

17 NGOs or other individuals and that, therefore, the

18 motivation of making complaints was a matter which had

19 to be assessed by this Tribunal.

20 If that wasn't their intention in terms of

21 displaying what were the cultural attitudes within the

22 NIO, then how prescient were the submissions made by the

23 families, because the disavowal of the meaning and

24 intent of these submissions by Mr Beer, I am afraid,

25 rings very hollow and it rings very hollow because when




1 it came to deal with all the issues, it was dealt with

2 succinctly, if not tersely.

3 When it came to dealing with chapter 9 -- again,

4 I'll give you the reference; it is at page 122/73,

5 line 1. It is on the official transcript. It is

6 page 71/19 on LiveNote. He said that the purpose of

7 chapter 9 was the obligation of the Tribunal to look at

8 the whole ambit of the evidence and, secondly and more

9 importantly, in assessing the behaviour of the NIO

10 towards Rosemary Nelson, the Inquiry should take into

11 account what is now known, but wasn't not known to the

12 NIO at the time.

13 This evidence may explain why the normal overtures

14 of the NIO in relation to matters of personal security

15 fell on deaf ears, in particular the response to the

16 Adam Ingram letter of 24/09/1998. The conclusion in

17 relation to the totality of the evidence is that the

18 interaction between Rosemary Nelson and the NIO was not

19 intended to lead to personal security being obtained for

20 her from the NIO.

21 When he returned to this matter, and he was

22 questioned by Sir Anthony Burden in relation to what was

23 to be taken out of chapter 9, and the question of motive

24 was raised, the reply was:

25 "It is not necessarily part of my submission.




1 Motive doesn't matter. I don't want to oversubmit."

2 When asked by Dame Valerie Strachan in relation to

3 the precise meaning of chapter 9, he said:

4 "If that's the way my submission read, it was not

5 the intention."

6 I invite you to read chapter 9, and just a little

7 survey of it, because quite literally, if you read this

8 submission, it firstly has to be taken as against the

9 background of the submission as a whole. It doesn't

10 stand in isolation from it. It is to a large extent

11 a core chapter in relation to all of the submissions

12 that were advanced. And at paragraph 1.2 of their

13 submissions --

14 SIR ANTHONY BURDEN: Could you give the page reference?

15 MR HARVEY: Sorry, the page reference is RNI-921-003

16 (displayed). It is just the introduction and all that.

17 The sole purpose of this is that these submissions are

18 made on behalf of the NIO. 12 former or serving NIO

19 officials have given evidence and eight others have

20 provided witness statements to the Inquiry. So there

21 can be no doubt that these are the official submissions

22 that have been advanced on behalf of the

23 Northern Ireland Office, not on the basis of what they

24 say was known in 1999 back to 1994, but what they now

25 know. And I respectfully submit, when one goes to




1 chapter 9 -- it is at page RNI-921-061 (displayed) --

2 one simply asks the question: if motive was not an

3 integral part of their submission, why were these

4 submissions made? And if it wasn't their intention to

5 be read on their face, what other intention could have

6 been ascribed to them?

7 One just simply -- I will unfortunately have to pay

8 some little attention to them, but if one goes down to

9 paragraph 9.3:

10 "In that regard, the Inquiry may wish to bear in

11 mind other aspects of Rosemary Nelson's behaviour. For

12 instance, the Inquiry has heard evidence that

13 Rosemary Nelson was ..."

14 I just leave those aside because there is one in

15 particular I would like to go to before coming back to

16 deal with these, I am afraid, in some detail. It is

17 over the page, RNI-921-062, 9.36 (displayed):

18 "Encouraging the intervention of a foreign

19 government in the prosecution of an individual in

20 another state."

21 Now, that is against the background:

22 "The Inquiry may wish to bear in mind other aspects

23 of Rosemary Nelson's behaviour."

24 Paragraph 9.2 was:

25 "In coming to a conclusion on that issue, it is




1 submitted that the Inquiry will need to ask whether

2 there was a genuine concern by Rosemary Nelson for her

3 own security, whether she was genuinely keen to have

4 some protection from the State, and whether there were

5 other reasons for her behaviour than a desire for

6 protection."

7 Now, these submissions are on behalf of the

8 Northern Ireland Office. What is peculiar is that

9 a security officer, in giving his evidence, indicated

10 that one of the matters that appeared to rankle most

11 with the Loyalists in Lurgan and Portadown over

12 Drumcree, which led to the intervention of Billy Wright,

13 was the deep resentments against the intrusion of the

14 Republic of Ireland into the affairs of

15 Northern Ireland, and that that was a particular feature

16 which caused offence.

17 Had this submission been made on behalf of that

18 Loyalist organisation, one could understand it. It is

19 made on behalf of the Northern Ireland Office, who at

20 the time were participants in the Anglo-Irish

21 Secretariat as a result of the Anglo-Irish Agreement.

22 The intrusion of the foreign state or a foreign

23 government, if that is meant to be reflective of the

24 thinking in the Northern Ireland Office now, that is

25 a matter of profound concern because one would have to




1 say: how genuine could their engagement have been with

2 the officials on behalf of the Irish side and the

3 Anglo-Irish Secretariat if their view was that for

4 a solicitor to seek assistance in prosecuting the

5 defence of a client could only be motivated in a way

6 which was detrimental to the interests of

7 Northern Ireland is quite simply beyond me. But then

8 many of these submissions are.

9 But what I respectfully submit is: how and in what

10 manner could that be interpreted in any other way? When

11 Mr Beer said it was not his intention to give that

12 impression, well, if it was not his intention, it simply

13 means these are either badly expressed or the reader

14 lacks the subtlety to go behind the actual words that

15 are used and find their true intent. And I don't think

16 I lack the subtlety. But if one goes back to deal with

17 them, at 9.1:

18 "It is submitted that, in the light of what has been

19 set out already ..."

20 That is why this is a core chapter. This isn't just

21 an isolated submission, it does relate back to the other

22 matters, which I will deal with:

23 "... there is a real conflict between what the NIO

24 was being told that Rosemary Nelson wanted and what

25 Rosemary herself was saying she wanted to those closest




1 to her. It is submitted that the inquiry will have to

2 grapple with this conflict in order to come to a fair

3 assessment of whether there was really was anything else

4 the NIO could or should have done in relation to the

5 security of Rosemary Nelson beyond the steps that it can

6 be shown to have taken, bearing in mind of course that

7 the NIO was informed by the RUC that there was no

8 evidence of a threat to Rosemary Nelson."

9 Of course that is just simply not right. They were

10 informed there was no specific threat. The fact that

11 the NIO lacks the expertise to understand the nature of

12 what they were doing is a structural failure within that

13 organisation and it is a structural failure which

14 existed because when threats were received, they weren't

15 passed into the section of the division which had the

16 knowledge and ability to make threat or risk

17 assessments; they are handed in to the complaints

18 section and the complaints section effectively meant

19 that they were in the hands of Anne Colville and

20 Simon Rogers because we have heard that the other

21 personnel were in and out and Christine Collins as head

22 of the division seemed to straddle both.

23 When it comes to making an assessment in relation to

24 this, you have had the advantage of seeing both

25 Christine Collins and Anne Colville give evidence. When




1 it comes down to the structures of the NIO and how this

2 particular division developed, well, it developed, as

3 was indicated by Miss Collins when she gave her

4 evidence -- it developed out of the old institution

5 under the Minister of Home Affairs in Northern Ireland.

6 And it was interested to hear the 1962 Police Commission

7 and its effect to policing in England. Unfortunately,

8 up and until 1972, police in Northern Ireland fell

9 directly under the control of the Minister of Home

10 Affairs, one of the real historic problems in relation

11 to the acceptance of an independent police force by the

12 minority community.

13 In 1972, for the first time a police authority with

14 control of the police was brought into effect, but

15 unfortunately many of the structural aspects of the old

16 force remained in place. And Anne Colville in her

17 evidence and, indeed, Christine Collins indicates that

18 the complaints division was run, as it were, on the

19 cheap, where there weren't deputy principal officers

20 that there may have been in other divisions. It was

21 found that people at her grade level could work just as

22 effectively and that, therefore, they were paid less.

23 But why would you pass threat assessments into the

24 complaints division if you have a proper structural

25 understanding of the requirements of the State? Not




1 simply to meet its Article 2 obligations. Article 2 is

2 of some assistance in assessing what a state's

3 obligation is, but a state generally in democratic

4 societies that are based on the western model are much

5 more sophisticated than the minimum requirements to meet

6 the ECHR.

7 Most states of a western nature do not require that

8 there is an immediate threat on an individual. If they

9 know there is a substantial and significant threat to

10 their life, they will take steps at whatever level seems

11 appropriate, to protect that.

12 The use of the phrase which seemed to engage

13 Mr Beer, which was used by, I am afraid,

14 Christine Collins in her statement, did not meet the

15 requirements of the ECHR, but what it did meet was the

16 requirements of the KPPS, which are radically different.

17 But if one is dealing with governments, the important

18 matter in relation to this is that no one in the

19 complaints system seemed to have even the beginnings of

20 the understanding of the threat assessment process

21 within the RUC. And one of the reasons perhaps why

22 there was a complete failure in this particular case in

23 relation to threat assessments was because the

24 complaints section of the Police Division would have

25 normally been dealing with the section in the




1 Command Secretariat that dealt with complaints and,

2 therefore, would not have offered the same degree of

3 knowledge as to the processes that ought to have been

4 gone through as those who handled the security measures

5 of regular threat assessments.

6 But as the evidence unfolded and as Mr Donaldson has

7 not replied to any of these matters, it would appear

8 that what there is within the RUC, a wholesale

9 systematic failure in relation to their obligations in

10 relation to threat assessments and a wholesale and

11 complete failure in relation to the NIO in terms of

12 their oversight of the actual structural -- not simply

13 the individual process of the outcomes of each

14 individual indication, a complete failure of

15 understanding of the structural processes which they, as

16 a government institution, had their responsibility to

17 protect the citizen by ensuring that the structures were

18 properly in place.

19 But if one comes on to deal with the submissions, in

20 coming to a conclusion on that issue, it is submitted

21 the Inquiry will need to ask whether -- this, again, is

22 at RNI-921-061 (displayed). If one goes down to

23 paragraph 9.3, these are the aspects of her practice:

24 "Running her practice around the visits of

25 Colin Duffy."




1 There is absolutely no suggestion that she ran her

2 practice around the visits of Colin Duffy. The evidence

3 was that if Colin Duffy arrived, she would see him at

4 the expense of other clients. That is a vastly

5 different position from running her practice around him.

6 It is the type, unfortunately, of convenience that

7 high profile clients enjoy, whether it happened to be

8 Binder Hamlyn or Rosemary Nelson. But if you are

9 considered a high profile client, then you will be given

10 facilities, but particularly in a small town such as

11 this. But to suggest that in fact that shows, as the

12 writer and author on behalf of the

13 Northern Ireland Office indicates, that that is somehow

14 rather a matter that you must grapple with in

15 determining whether or not she was genuine in her

16 approaches to the NIO, I respectfully submit would

17 require a massive extension not simply of the

18 imagination but of relevant factors.

19 Renting a property to a client, Colin Duffy, whether

20 high profile or otherwise, well, Sir Ronnie Flanagan has

21 given his evidence on that. The evidence that was

22 presented at the stage to the Secretary of State was

23 that it was a commercial arrangement, it was perfectly

24 well within the ambit of behaviour of solicitors and

25 other business people whom he knew within




1 Northern Ireland. So, again, one has to ask: why is

2 this included? What is the purpose of it?

3 If one goes over the page:

4 "Personally paying for elements of Colin Duffy's

5 defence work."

6 Now, the reference that is given for this is

7 a reference in relation to the fact that a private

8 detective was employed. A private detective was

9 employed against the background of the revelation of the

10 identity of Lindsay Robb. I mean, it would be

11 considered inappropriate for the solicitor to make

12 enquiries, so the Legal Aid provided for a private

13 detective to do that. He was given fairly short shrift

14 by the police and didn't last very long but the writer

15 of this and the author of this document knows quite well

16 that in defence of people in Northern Ireland there is

17 a Legal Aid scheme. Why this tribunal should bother to

18 go behind that and seek to find that she was paying for

19 substantial matters of his defence, even if she did, so

20 what?

21 He does indicate -- Colin Duffy -- that he did bring

22 many problems to her, that she never charged him for the

23 resolution of that problem or those problems. That is

24 something I'm sure that is common practice in every

25 solicitor's office throughout Northern Ireland and, I am




1 sure, the wider community within the United Kingdom.

2 Small town and small term solicitors' offices do not

3 charge for every piece of billable hours' work that they

4 put in. Their clients in general are not high profile

5 commercial agents with resources to unlimited funds.

6 But then, most curiously, the extensive work for the

7 GRRC was apparently done pro bono. Well, the Bar

8 Council have a pro bono scheme which they invite every

9 member of the bar to sign up to, to provide services

10 particularly not to impecunious individuals because they

11 are met by the Legal Aid scheme. It generally tends to

12 be in the unproductive advice and human rights issues

13 and other issues for which there is no payment.

14 So why should this tribunal grapple with someone

15 providing pro bono work in relation to a group which

16 ostensibly is led by Father Eamon Stack and others? But

17 the issues that it was dealing with, irrespective of

18 whether one joins sides politically, what was happening

19 in Drumcree were two irreconcilable human rights and

20 a balance having to be achieved. A community where the

21 demography had changed over a period of years, where

22 people demanded the quiet enjoyment of a peaceful

23 community within their own lives, and marchers who had

24 been exercising the right to march within their

25 particular area over a hundred years.




1 The fact that that march contained sectarian

2 elements over which the Orange Order had little, if any,

3 control, and even if it had, chose not to exercise, that

4 will give rise to, I am afraid, grave matters of concern

5 by both parties.

6 Now, I appreciate that, but why could that be a

7 matter to be considered as impugning her integrity or

8 the genuineness of her approaches to the

9 Northern Ireland Office?

10 Getting too close to her clients. All her family

11 concerned for her safety. Again, the quotation which

12 goes with that is a quotation which indicates that one

13 of the problems of living in a small town community and

14 being a small town solicitor is that many of your

15 clients will be people you went to school with,

16 neighbours, people you bump into, people, if you have

17 never met them before, you may well know their mother,

18 you may well know their aunt. Getting close to them is

19 seen as an integral part, unfortunately, of the

20 community-type function that a local solicitor fulfils.

21 How could the quotation which came from that be

22 distorted into an issue which somehow or other impugns

23 her genuineness? Of course, when it came to dealing

24 with Colin Duffy, the position is that she did regret or

25 perhaps had cause to reconsider whether or not her




1 family's position was that, like any family's position,

2 appearing in high profile criminal cases in

3 Northern Ireland did not universally attract approval;

4 it brought with it costs and those were both a financial

5 and a human level and the family were concerned about

6 that.

7 But I must admit, for this tribunal to have to have

8 this brought to its attention because it somehow or

9 other is relevant or material or significant in terms of

10 the issues that you have to deal with, I respectfully

11 submit reveals much more about the author than it does

12 about the issues.

13 THE CHAIRMAN: What it is relevant to is the risk that

14 Rosemary Nelson is running.

15 MR HARVEY: Exactly, and I will come to that. When one

16 comes to the end of this, that is the position that one

17 sees: that the Northern Ireland Office, instead of

18 addressing what is the fundamental issue which was

19 relevant to them, namely how could the

20 Northern Ireland Office address the risk. If

21 Rosemary Nelson simply wasn't interested, that's the end

22 of the matter. If there are no circumstances in which

23 she would have accepted assistance and advice from them,

24 then the Northern Ireland Office could have done no

25 more. Why, this being placed in these circumstances, in




1 the invitation of the time, when in fact what this

2 shows throughout is the risk that she was running? And,

3 again, this is a matter which bears real consideration,

4 9.3.7.

5 Again, this refers to the tactic directed by

6 Rosemary Nelson, described by Brian Leeson as "carpet

7 bombing", in the defence of Colin Duffy in respect of

8 the murder of the two police officers in Lurgan

9 in June 1997.

10 Brian Leeson described the approach as a tactic to

11 swamp the police with witness evidence. He did not know

12 how Rosemary Nelson had come to have gathered so many

13 witnesses to testify that Colin Duffy could not have

14 been involved in the murder, despite the eye-witness

15 evidence on the scene.

16 Now, the reference for this is Day 14/24/05, to

17 Day 14/24/11. I would invite you to read on through

18 Mr Leeson's evidence to the end of page 14/25. He makes

19 it quite clear that all of the witnesses whom she was

20 directing to the police were voluntary attenders. They

21 wanted to give and make statements. He also, in

22 relation to the phrase that he used in his statement of

23 "carpet bombing", is being not entirely appropriate.

24 What she was doing at that particular time was bringing

25 the attention of the police all of the evidence of the




1 people who had come and wished to make statements.

2 Now, the important matter in relation to this is

3 these witnesses were not being shielded from the

4 investigative processes available to the police in

5 relation to their accuracy, their reliability or,

6 indeed, whether or not they were as impartial as their

7 evidence may have led one to believe. What

8 Rosemary Nelson was doing was bringing this to the

9 attention of the police.

10 To use what Mr Leeson described as an ill judged

11 remark as a pejorative cloud to hang over what was then

12 described as an entirely professional job,

13 I respectfully submit once again gives one pause to

14 consider the motivation of the author rather than the

15 subject of what can only be not simply a complaint, but

16 an issue which the author is indicating can be resolved

17 against Rosemary Nelson in terms of her professional

18 practice.

19 Again, I will go down through each and every one of

20 these matters. They all create exactly the same

21 picture. The question that is being called into

22 question is whether or not she herself was genuine. The

23 people who dealt with her at the time in terms of the

24 complaints is Mr Mulvihill, P146, even to a large degree

25 John Steele. All find her a genuine individual. In




1 fact, one of the matters that is used in the course of

2 the submissions by Mr Beer was that Mr Steele's approach

3 completely scotched the indication that there was any

4 culture which would tend to disadvantage her in terms of

5 her dealings with the Northern Ireland Office.

6 In terms of the other matters, what I respectfully

7 submit is they are stunningly trivial. But when it

8 comes to the question of Nuala McCann -- going over the

9 page, RNI-921-063 (displayed) -- having allegedly been

10 assaulted by police on Garvaghy Road, failing to seek

11 any medical treatment for alleged injuries or, indeed,

12 photographing them notwithstanding her experience and

13 knowledge as a solicitor, again the quotation for this

14 is from Nuala McCann's evidence. What it omits is that

15 Nuala McCann saw the injuries. Nuala McCann had

16 an account related to her of how the injuries were

17 caused and Nuala McCann said, Day 15, page 18, line 12:

18 "Rosemary Nelson was not good at -- was good at

19 getting clients, but when it came to herself, it was

20 different."

21 And what I respectfully submit is that is reflective

22 of Mrs Nelson's attitude throughout most of these

23 matters, that what this account leads out of are the

24 factors that have been addressed by my learned friend

25 Mr O'Hare, namely on the night a police officer saw her




1 go along the line of police officers wishing to speak to

2 a senior officer to register a complaint about how this

3 had happened, the Northern Ireland Office, some ten

4 years after her death, to be saying that the failure to

5 have injuries which were readily identified by a number

6 of individuals who saw her photographed, calls into

7 question her genuineness I quite literally find

8 incomprehensible. It might be a failing of mine, but if

9 it is, it's a failing I'm willing to bear.

10 What I respectfully submit is when one looks at all

11 of the matters that are set out here, they all come back

12 to what Mr Beer in dealing with this indicated in his

13 oral submissions was the important matter of the

14 response to Adam Ingram's letter of 24 September, which

15 was a reply to the letter which had been received from

16 Paul Mageean on behalf of the Committee for the

17 Administration of Justice.

18 The real problem with that is quite literally that

19 Mr Mageean's response was that this is absurd. So when

20 it came to deal with Mrs Nelson, it is hardly surprising

21 that if that was his reaction, her reaction might well

22 are mirrored or reflected by that.

23 In his letter he was bringing to the attention of

24 the Northern Ireland Office genuine concerns in relation

25 to Rosemary Nelson and in it, although not in terms, he




1 was asking them what they would do about the threats and

2 the risk that she was under. And he indicated a number

3 of different alternatives. The reply from Adam Ingram's

4 office was simply to repeat to Mr Mageean precisely what

5 he had set out in less structured or formal terms asking

6 them to do. And they are saying, "No, you do it".

7 So if that is the crucial matter, one has to ask:

8 well, why is it crucial? Is it not crucial that in fact

9 the Northern Ireland Office were themselves being asked

10 to take positive, concrete steps; not invite her to

11 engage them, but them to engage with her? And one of

12 the matters, again, which is highly significant in

13 relation to all of the submissions that have been made

14 by the Northern Ireland Office -- and I will refer to it

15 now because it was alluded to by my learned friend

16 Mr Donaldson. That's at chapter 11, which is at

17 RNI-921-100 (displayed).

18 It is in a footnote. And if one can just enlarge

19 the footnote, it sets out -- and Mr Donaldson again

20 referred to the fact that one would be forgiven for

21 thinking that Pat Finucane and Rosemary Nelson were the

22 only two lawyers killed in the Troubles in

23 Northern Ireland. I wouldn't forgive anyone who felt

24 that.

25 The lives of each of these people was taken in the




1 most egregious circumstances and robbed this community

2 of some of its finest individuals, and most of these

3 murders were committed as against a background of an IRA

4 campaign which was designed to fracture and cause

5 fissures in the administration of justice in

6 Northern Ireland, to frighten individuals of quality and

7 worth from accepting judicial appointments or

8 appointments under the State, and each of those

9 individuals accepted their jobs against that background.

10 I don't know who are the people who think that

11 Rosemary Nelson and Pat Finucane were the only ones who

12 died. That catalogue is a background of -- all but

13 three were people who had security protection

14 william Staunton was an RM. His daughter attended

15 St Dominic's grammar school on the Falls Road in the

16 heart of West Belfast. He was leading his daughter to

17 school, 25 January 1973, when he was shot dead. He had

18 no security with him.

19 Resident Magistrate Martin McBurney and Judge

20 Rory Conaghan were both murdered on 16 September 1994,

21 both of them in the early morning at breakfast time

22 answered their own doors. Neither had security.

23 Rory O'Kelly had been a Catholic solicitor in Dungannon

24 for a long number of years, had left that practice to

25 become a member of the prosecuting service. He was




1 drinking in a pub when he was shot dead. He had no

2 security. It was an area in which he would have been

3 well known. People would have been able to identify

4 him. John Donaldson was shot as he left Andersonstown

5 town police station in October 1979; again, a person who

6 never had security.

7 The others all had security but chose not to allow

8 that to become an overwhelming part of their life and

9 perhaps the greatest exemplar of that is Judge

10 William Doyle who was murdered by the IRA outside what

11 was described as his place of worship. He was murdered

12 outside mass at St Bridget's church on the Malone Road.

13 He was a member of the St Vincent de Paul and each

14 Sunday he led an old lady to mass. He refused security

15 during the course of that. Each one of these people --

16 William Travers shot -- his daughter shot dead at the

17 same church when she was attending mass with him, when

18 he had no security with him.

19 If one reads the Northern Ireland Office

20 submissions, the sole conclusion one could come to is

21 that these people were the authors of their own death

22 because they knew the dangers that they were under, they

23 knew that the organisation that was likely to kill them

24 was not the Loyalists but the IRA.

25 And one of the matters of the evidence that one has




1 heard from all of the witnesses is that the IRA was much

2 more sophisticated, the planning that they would go into

3 was much more detailed, much more prolonged and much

4 more resource-intensive in terms of the use of

5 personnel, and each one of these men knew that. But the

6 attraction of leading a life which even in part is not

7 obscured by the daily disciplines of acknowledging that

8 your life is under threat is in most individuals such

9 a strong pull that few of us could live our life like

10 Salman Rushdie.

11 Everyone in this province knows that judges and

12 individuals who fall within the KPPS, are attractive

13 targets for dissidents or members of the IRA, try

14 insofar as they can to ensure that their families and

15 they themselves are relieved of the very burdens that

16 that security places upon them: Not one acknowledgment

17 of that in any of the submissions by the

18 Northern Ireland Office.

19 I do not forgive anyone who thinks that

20 William Doyle and Pat Finucane are the only lawyers

21 killed. I do not understand the humanity of individuals

22 on behalf of a state body such as the NIO to make

23 submissions that, because you are unwilling or reluctant

24 to carry a firearm that you are unwilling or reluctant

25 to engage with the process of KPPS or other security




1 measures when the Government has never brought to your

2 attention the nature of the threat and the actual risk

3 that you suffered, when most of us prefer to live our

4 lives persuaded in a deluded way or otherwise that it

5 will not happen to me.

6 That is the importance, I respectfully submit.

7 THE CHAIRMAN: Would you choose a convenient moment?

8 MR HARVEY: Now is a convenient moment.

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

10 quarter to two.

11 (12.46 pm)

12 (The short adjournment)

13 (1.45 pm)

14 THE CHAIRMAN: Yes, Mr Harvey, when you are ready?

15 MR HARVEY: When I closed, I was dealing with evidence which

16 the Northern Ireland Office purported to rely upon to

17 show that Rosemary Nelson was not interested in

18 obtaining personal security. And there is an abundance

19 of evidence in the papers that Rosemary Nelson had

20 attitudes which, in terms of their presentation, would

21 be greatly influenced by the person she was dealing

22 with.

23 There were persons, whenever she was dealing with

24 them, such as her family and others, her primary concern

25 would be to put on a brave face. There are others whom




1 undoubtedly she would not wish to let into her private

2 thinking and there were other individuals who, because

3 of the specific role that they performed within the

4 relationships that she had developed, she would have

5 been frank in relation to the fears that she believed

6 had a significant operation in her life.

7 And undoubtedly one of the matters that greatly

8 influenced her was the willingness of NGOs to undertake

9 the carriage of what would otherwise be a burdensome

10 problem of engaging with Government, seeking to bring to

11 their attention the difficulties that she faced and

12 obtaining a specific remedy.

13 One of the matters that is of significance and

14 significance within the NIO and other government

15 departments was the importance that NGOs play in

16 democratic society. Throughout the world there are many

17 NGOs of many different types but they do enjoy a special

18 status under the United Nations Charter because they

19 must be non-governmental organisations. In many

20 countries, although they are non-governmental, they may

21 be funded by government, but the government must have no

22 input into any of the product which they produce -- and

23 the importance that they play particularly when the NGOs

24 are fulfilling a function of assisting government to

25 become aware of problems which may exist but may be




1 unnoticed by government or the government may be

2 unwilling to deal with.

3 Therefore, human rights NGOs are of fundamental

4 importance and one of the roles that they fulfil is not

5 that of balance. Their function is to hold government

6 to account whenever there are perceived failings in the

7 response of government to human rights issues in its own

8 state. Most governments are prepared to acknowledge the

9 failings in human rights issues in everyone else's

10 state. Amnesty International, I believe, finds its

11 reception in every state in which it works unwelcome

12 and, in every other state, welcome provided that it is

13 someone else's problems it is dealing with.

14 And perhaps that is important and significant in

15 relation to the Northern Ireland Office attitude. That

16 there was an attitude is undoubted because it is

17 acknowledged. It is acknowledged by John Steele, it is

18 acknowledged by Christine Collins and acknowledged by

19 them in fairly graphic terms.

20 John Steele, in giving his evidence, indicated that

21 in fact he was one of the appointments board that

22 nominated Geralyn McNally and also Mr Donnelly, and that

23 that raised some eyebrows. When he was asked why, it

24 was because Geralyn McNally was a member of

25 Amnesty International. When further pursued by the




1 chair why that should raise concerns, he indicated,

2 well, because it is Amnesty International. When further

3 pursued it was because, well, some people believe that

4 Amnesty International supports criminals against the

5 state.

6 Well, those some people who raised their eyebrows

7 must have been individuals that Mr Steele was coming in

8 contact with and the most likely eyebrows to be raised

9 were within the Northern Ireland Office, because when

10 this matter was broached with Christine Collins,

11 specifically concerning the approaches and the channels

12 that were being used by Rosemary Nelson to bring her

13 concerns to the attention of the Government, she was

14 quite clear. He simply said that, well, using NGOs was

15 an indication that Mrs Nelson genuinely believed that

16 the whole of the British State was corrupt and that this

17 was the reason for her refusal to use any of the

18 mechanisms.

19 She was asked in relation to that quote from

20 a statement, and she continued -- and this is -- I'll

21 not call it up, but the reference page is 173 on Day 61.

22 It is at line 14 and it continues at paragraph 21.

23 "Answer: Could you take the paragraph above as

24 well, please, because I think that 147 flows on from

25 146. Yes, because I think this passage or this bit of




1 my statement is in there as a result of questions

2 Eversheds were asking me, and it is all a bit of sort of

3 hypothetical. And what I'm trying to explain there is

4 that we were aware through the third parties that, you

5 know, she was quite adamantly convinced that the police

6 and, indeed, the State were against her and that, you

7 know -- that was part of the reason she was going

8 outside the usual channels. If you want to use it like

9 that, that's where that comes from.

10 "Question: So you and your colleagues in the Police

11 Division thought, did you, based on the information you

12 say came to you by third parties, that what was her

13 belief? That the whole British state was corrupt?

14 "Answer: Yes, and I think she had also testified --

15 I'm not sure that I have got this piece of paper in

16 anything that has been produced to me, but I think she

17 did so appear in the US Senate Committee.

18 "Question: Yes.

19 "Answer: And I think she made fairly clear

20 statements in that of what her views were.

21 "Question: That was specifically in relation to the

22 police, wasn't it?

23 "Answer: Yes, but I think --

24 "Question: This is a rather wider remark, isn't it?

25 "Answer: What, the police and the Government and




1 everybody else?

2 "Question: It just says the whole of the British

3 State was corrupt.

4 "Answer: Yes, I don't think she would have seen --

5 I may be wrong in imputing this to her. I don't think

6 she would have seen there being a terribly clear

7 dividing line between the police and the Government.

8 I think I'm reinforced in that belief because if she had

9 seen there being a dividing line, then she would

10 certainly have come to the Government in one of its

11 forms direct with her concerns. Do you see what I mean?

12 If you are concerned about one part of the system but

13 you think the rest of it is all right, you go to the

14 part that you think is all right."

15 That she reaffirmed later on in her evidence, that

16 Mrs Nelson, so far as she was concerned, was operating

17 through NGOs because the whole of the British State was

18 corrupt and that the NGOs had agendas which were wider

19 than the simply making of complaints.

20 So that culture within the Northern Ireland Office

21 and within Police Division can only be accounted for on

22 the basis of their belief that NGOs were not motivated

23 themselves by the desire to have redress to specific

24 problems, but were simply motivated, as John Steele

25 would have described it, stirring things up.




1 The problem that arises and the problem that was

2 identified was that Christine Collins accepted that the

3 fears that were being expressed by Mrs Nelson were

4 genuine but misplaced, as she described them. And it is

5 the misunderstanding of the consequences of the fears

6 that were being addressed by the NGO that has led to

7 some of the genuine failures by the

8 Northern Ireland Office, the police service and the NGOs

9 themselves to address the central problem.

10 These issues, as I have indicated, were directed

11 into the complaints system, and while Christine Collins,

12 as Head of the Police Division, would have straddled

13 both complaints and KPPS, by sending them into the

14 complaints system, they were not seen other than as the

15 threats were emanating from the police. It is quite

16 literally unbelievable that the police could pose

17 a danger to Rosemary Nelson. Therefore, there was no

18 threat. Therefore, there could be no risk. Therefore,

19 there was nothing that needed to be done.

20 Never at any stage did they address that the

21 complaints that were being made were being made against

22 the police, but the threat that needed to be addressed

23 was the threat that would emanate from Loyalist

24 paramilitaries who, if they were aware of her high

25 profile within the legal system and in representing




1 those who would have been regarded as having Republican

2 views, that she was at risk.

3 So the failure quite literally was she can't be

4 under any threat from the State. Therefore, it is

5 improbable that there is any foundation to the

6 complaints. Therefore, there is nothing which needs to

7 be addressed.

8 The NGOs themselves, to a large extent, were guilty

9 of this. They failed to advise Rosemary. Whenever they

10 were seeking redress, she might have been concerned

11 that the people who were providing the security would be

12 the police themselves from whom the complaints had

13 originated but the threat coming from a quite different

14 quarter. And they never addressed that at any stage

15 within the NIO or within the police or within the NGOs.

16 And one of the difficulties again in dealing with

17 the written responses of the Northern Ireland Office is

18 their failure, and continuing failure, to draw that

19 distinction. And the suggestion that she had formed

20 a view as early as her meeting on 18 February 1997 with

21 Jane Winter over an informal lunch which was then

22 converted into a letter by Jane Winter directed to her

23 and the product then passed on to Param Cumaraswamy,

24 that those were very preliminary views, where there was

25 a failure to understand by everyone, it was the




1 consequences of the conduct of police officers which led

2 to complaints which could then filter into the Loyalist

3 community, and that was the danger.

4 Police officers making threats during the course of

5 interviews are of themselves serious matters, quite

6 literally because if they continue outside the narrow

7 confines of an interview room, then undoubtedly, if they

8 filter into Loyalist organisations, the consequences

9 will be grave. If they are merely the expressions of

10 frustration, if they are merely the attempt to

11 disassociate a potential suspect from his legal advice

12 in order to make it more potentially possible for the

13 individual to make admissions, which was the purpose

14 which lay behind the interviews, then that in itself,

15 while reprehensible, at least had a cut-off point.

16 The failure at all stages within the NIO was their

17 failure to recognise that these complaints may be

18 symptomatic of an underlying, fundamental problem within

19 the local police force in Lurgan and within the local

20 security forces in Lurgan, because the contacts between

21 local security forces and the local Loyalist population

22 were an extensive network, and they were an extensive

23 network because the campaign of murder conducted by the

24 IRA meant that police officers could only live in

25 communities where they felt safe. That, inevitably, for




1 most of the time meant Loyalist communities or

2 communities with a very strong Unionist viewpoint,

3 likely to be expressed to them on a daily basis. And

4 any communication from a police officer or a member of

5 the RIR or a member of Special Branch was likely to find

6 itself disseminated with the acceptance of holy writ.

7 But they never addressed that problem.

8 The Northern Ireland Office simply assumes, well,

9 this couldn't be happening, and it would appear, when it

10 comes to dealing with the threat assessments, that is

11 the basis upon which they were dealt. Nobody assessed

12 the Loyalist threat to Rosemary. Nobody addressed the

13 risk that she was under from the level of threat which

14 existed because what they were addressing were

15 complaints made against police officers, the

16 consequences of which were improbable: that police

17 officers themselves were the source of the threat.

18 Police officers could contribute to the risk by

19 increasing the knowledge of those who would place her

20 under threat, but they were unlikely to be the

21 executioners.

22 The whole structure, therefore, of the NIO and its

23 attitudes is important, and the revelations not only in

24 that passage but in subsequent passages by

25 Christine Collins of what their attitude was is highly




1 significant, but it is also highly significant as

2 against the background of all of the evidence of

3 John Steele. And what I respectfully submit is the

4 methodology that is being employed by this tribunal, if

5 its value was ever to be illustrated at its optimum

6 level, it is in the evidence of these witnesses.

7 It is unlikely that any cross-examination, however

8 honeyed, could have produced the same results as the

9 meticulous hard work of counsel to this tribunal in

10 these areas.

11 The evidence of John Steele, I would say, was, for

12 most of us who have known his participation in the

13 affairs of the government of Northern Ireland over

14 a long time, a revelation because what it did reveal was

15 a huge cultural divide between the attitudes that

16 existed and those which one would have expected to

17 exist: The attitudes to the NGOs, the attitude to

18 Param Cumaraswamy, the failure to even contemplate that

19 anyone would have said to Param Cumaraswamy that there

20 were solicitors working to a paramilitary agenda. And

21 when asked about these cultural attitudes the end of his

22 evidence by Sir Anthony Burden, he was asked a number of

23 questions by Dame Valerie Strachan which led on to the

24 make-up of the NIO. And when asked about the cultural

25 make-up and background, he was the one who used the




1 phrase "male and Protestant", to which my learned friend

2 Mr Beer objects.

3 The importance of that was quite literally when he

4 was asked, well, would that have caused difficulties or

5 would it have in any way affected your attitude to how

6 you would have reacted to the Catholic community, he

7 said, no, but it certainly was a reaction that the

8 Catholic community visited upon the NIO.

9 Sir Joseph Pilling, when he gave his evidence on

10 this particular aspect, indicated that the NIO had

11 a particular problem in attracting Catholics and it had

12 a particular problem in attracting Catholics which,

13 although addressed, took some considerable time to

14 actually redress.

15 John Steele, in dealing with it, indicated that the

16 problem was that the Catholics with the better degrees

17 didn't really see the Northern Ireland Office as an

18 attractive option, for which substitute the words "warm

19 house"; that the ones with the better degrees went into

20 other departments. And although my learned friend gave

21 the breakdown of the number of Catholics that worked for

22 the Northern Ireland Office as 25 per cent in 1998, and

23 given what John Steele said about it, one would be

24 interested to know the functionary levels that they

25 occupied.




1 It is also important because Mr McCusker, in giving

2 his evidence, indicated he wasn't a member of the NIO.

3 He was asked by Mo Mowlam to take over a degree of

4 responsibility, particularly in relation to Drumcree,

5 the proximity talks, the difficulties that one was

6 having as an outside voice to give the balance that was

7 necessary in relation to the constitution of the NIO.

8 I don't, for one moment, suggest that the NIO was made

9 up of a number of individuals whose attitudes were

10 hostile to the minority community in general, but what

11 the evidence reveals is they lacked understanding of

12 a number of the problems that were faced by persons such

13 as Rosemary Nelson in their day-to-day contact with the

14 police in the course of the exercise and discharge of

15 their functions within the law. And when someone like

16 Rosemary Nelson chose to approach them through NGOs of

17 whom they had a dim view, far from relieving their

18 concerns or anxieties, it would appear that their views

19 of NGOs, coloured how they viewed Rosemary Nelson, and

20 the views that they had of Rosemary Nelson confirmed

21 their views of the NGOs.

22 So what you have is a reciprocal relationship of the

23 confirmation of attitudes. That, I respectfully submit,

24 can be easily seen again in the evidence, where the

25 attitude of Christine Collins in relation to the Duffy




1 complaint -- the Duffy complaint comes in in July 1997

2 at the height of Drumcree, just after the murder of two

3 police officers. And her attitude is, "This is a good

4 one to nail the truth". Well, you nail lies, that is

5 the source of the phrase and that was the meaning of it.

6 Now, this one was a good one to nail. What steps,

7 if any, did the NIO, of its own volition and initiative,

8 take to ensure that the Colin Duffy complaint, which at

9 that stage was fresh -- it was comprehensible in terms

10 of the source of the complaint and comprehensible in

11 terms of those against whom the complaint was being

12 made -- what efforts did they take to pursue that, to

13 nail it? The answer is, Mr Duffy was released, he was

14 released on 2 October 1997, from custody and the

15 complaint was not pursued by Miss Collins with the

16 vigour that it once seemed to command.

17 And I respectfully submit, again, when one comes to

18 deal with the general attitude towards complaints, it is

19 impossible to go behind the evidence of Anne Colville.

20 She, to a large extent, was the individual who carried

21 out the initial or primary work, and when she was asked

22 in relation to the Torricelli letter why it wasn't

23 addressed in terms of threat, her simple reaction is --

24 and it is in our written submissions, and I don't

25 intend, therefore, to go to it, but I invite you to read




1 it again. It is under the Torricelli letter:

2 "We are complaints, we are not threats."

3 When Simon Rogers a month later goes and looks at it

4 and he says this appears to be threats, it is in

5 complaints. Police Division spans both. What do we do?

6 We pass it up or we ask for a response from the police.

7 But as we know, the police did absolutely really nothing

8 about it, but returned a response which appeared to the

9 Northern Ireland Office to be satisfactory. But it

10 appears to them to be satisfactory because they quite

11 literally have no knowledge of the operation of the

12 threat assessment system.

13 How can that ever be considered as an appropriate

14 Government response to its obligations under Article 2

15 or its obligations simply to its citizens who may be

16 under threat, that the government department, within the

17 Police Division, is never alerted that has the expertise?

18 And what I respectfully submit is that when one examines

19 each of the complaints, the February complaint -- how

20 can it be, when it comes to now, it would appear, the

21 accepted position of the police -- I might say accepted

22 against an overwhelming body of evidence -- that in

23 dealing with that threat, they were in breach of all of

24 their own force orders and in breach of the methods that

25 they ought to have had in place for handling it?




1 The August 1998 similarly.

2 Similarly, one could say that the response to

3 the February threat was somewhat better. It was

4 somewhat better because it was never -- while it was

5 never handled by D Branch, the Security Branch, at least

6 it was handled at a local level by a Special Branch

7 officer who seemed to indicate that there was no

8 specific threat. But Loyalists do pose a threat to

9 people.

10 The August threat by this byzantine process through

11 which it was dealt with a bifurcation into two different

12 departments produces virtually nothing other than the

13 individual -- who should receive no criticism -- who

14 just checked the system. There was no specific threat

15 and that goes back up to the Northern Ireland Office.

16 So what I respectfully submit is one has to ask:

17 culturally, within the NIO, was there an attitude which

18 itself did not serve to ensure that there would be

19 proper outcomes for assessments of threats and risk to

20 the lives of individuals that were brought to its

21 attention? One would have thought the simple way --

22 and, again, we deal with this in our written

23 submissions -- was that once threats were received by

24 the NIO, they should have been passed to someone with

25 the expertise to deal with them.




1 That expertise seemed to exist within the KPPS

2 because, again, Mr Beer did refer to the position of

3 Superintendent McAuley and there seemed to be

4 a complaint that Superintendent McAuley wasn't called to

5 give evidence. But Superintendent McAuley, at the very

6 end of his statement, indicates that in fact he is

7 suffering from post-traumatic stress disorder and the

8 last thing that he welcomed or wished for was an invite

9 to give evidence to this tribunal because he seemed to

10 be upset at being asked to make a statement because his

11 involvement with Rosemary Nelson was so peripheral.

12 The peripheral involvement, however, involves an

13 assessment of Mr Mac Cionnaith and Mr Duffy. The

14 assessment was, as pointed out by the Chairman, that

15 although there was no specific threat, they were at a

16 significant level of threat. But at the same time no

17 threat and no document produced in relation to

18 Rosemary Nelson.

19 When 144 was asked about the discrepancy, his reply

20 was, well, that's the way things work. Consistency,

21 unfortunately, is not a characteristic of the threat

22 assessments that he had seen. But at least the

23 involvement of the KPPS in the assessment in relation to

24 Mac Cionnaith and Duffy led to a proper consideration,

25 at least of some of the factors that ought to have been




1 taken into account. But Rosemary Nelson, unfortunately,

2 never had the advantage of being considered within

3 Security Branch or within the expertise that was

4 available to the KPPS.

5 Now, in dealing with these matters, the

6 constitutional position of the Government as against the

7 police in matters which are operational, it was never

8 the intention of the families, or on behalf of the

9 families, to suggest that there aren't distinct

10 constitutional roles and that the police operationally

11 must be independent. But as was pointed out in some of

12 the questioning to Mr Beer, the thought that the

13 Government simply stands by idly when there are matters

14 of grave concern in relation to a police force and its

15 conduct and its structures, is quite simply absurd. And

16 this Government, when it was appointed in May of 1997,

17 took exactly the same view as any Government. And,

18 indeed, when John Steele had to deal with these issues,

19 he dealt with them in relation to two specific documents

20 which were put to him by counsel to the Tribunal.

21 John Steele in his evidence clearly indicated that

22 while Government had every sympathy with the

23 Chief Constable's sensitivities, the Secretary of

24 State's position and the Government's position was

25 something which would be reinforced to the




1 Chief Constable in relation to actions that they might

2 wish him to take.

3 Now, there are two documents, one which is

4 RNI-106-250.500, which I would ask to be called up

5 (displayed). This document is dated 14 July 1998. This

6 document on the face of it is dealing with matters which

7 are arising out of the ICPC difficulties in

8 investigating the complaints that were raised on behalf

9 of Rosemary Nelson. And it sets out:

10 "The Secretary of State took the opportunity of

11 a meeting with the Chief Constable on another subject

12 this afternoon to discuss the matters raised in your

13 submission of 10 July. She said she needed to have some

14 assurance that everything necessary was being done. The

15 Chief Constable said it was. He had appointed

16 Commander Mulvihill from the Metropolitan Police to

17 investigate the matters and this would be supervised by

18 the ICPC. He intended to meet with Commander Mulvihill

19 and Miss McNally to decide the terms of reference of the

20 investigation. He thought the ICPC were content with

21 this. If he needed to involve someone else then he

22 would request that from the PCA."

23 Now, the important matter about this is that the

24 Northern Ireland Office, when John Steele gave evidence,

25 was concerned about the continuing position of




1 Miss McNally; in other words, the preferred position at

2 an early stage would have been the removal of

3 Miss McNally out of consideration to the position she

4 found herself in. The Chief Constable, it would appear,

5 is certainly content that she should continue. The

6 Secretary of State pursued her point and the

7 Chief Constable suggested she might write to the

8 chairman of the ICPC and invite him to meet her to

9 discuss whether he was content with what was proposed:

10 "PUS suggested that it might be better to obtain

11 a letter from the chairman of the ICPC to the effect

12 that this was, in his view, the proper way to address

13 his earlier concerns. I would be grateful if you would

14 give some thought as to how this might best be

15 achieved."

16 What it is showing is an imaginative approach to the

17 dichotomy between operational independence and meeting

18 the concerns which the Government have on this highly

19 difficult topic, and that is further illustrated in

20 a document which is RNI-106-253.500, if we can call that

21 up (displayed).

22 Again, this is dated just a few days later. It is

23 from Christine Collins, the Head of the Police Division.

24 If we have Ken Lindsay's note recording the Secretary of

25 State's discussion with the Chief Constable about this




1 subject refers:

2 "I understand that the Chief Constable is very

3 sensitive about the issue. However, the facts remain as

4 follows. The Chairman of the Independent Commission for

5 Police Complaints wrote to the Secretary of State on

6 2 July after he and Geralyn McNally had met the

7 Chief Constable and approved the Chief Constable's

8 suggested handling of the case. The latter reiterated

9 the ICPC's view that the conduct of the investigation

10 was unaltered. The letter also stays that whatever the

11 eventual outcome of the investigation, the ICPC's final

12 statement on the issue will reflect the serious concerns

13 which the events to date have brought about.

14 Paul Donnelly's letter also makes it clear that the Met

15 investigating officer will enquire into the conduct of

16 the original investigation by RUC Complaints and

17 Discipline personnel. ICPC press relates issued on

18 Friday, 10 July stated:

19 "'The Commission had been obliged to bring a number

20 of serious concerns to the attention of both the

21 Secretary of State and the RUC Chief Constable. It

22 makes it clear that these concerns relate to the conduct

23 of the investigation and states further investigative

24 steps will be undertaken under the continuing

25 supervision and direction of the ICPC.'.




1 "Although the Chief Constable suggested that

2 supervision on the part of Commander Mulvihill's

3 investigation team which involves the conduct of RUC

4 Complaints and Discipline was not required, then he

5 would request help from the PCA.

6 "He cannot do this. The PCA is a statutory body

7 whose remit extends only to England and Wales. They

8 have no authority or ability to supervise an

9 investigation in Northern Ireland.

10 "As my submission on 10 July stated, the only way in

11 which a fresh, independent oversight of this dimension

12 of the investigation can be achieved is by the Secretary

13 of State appointing a new member to the ICPC for this

14 purpose. This can be done if either the Chief Constable

15 or the Secretary of State calls in that aspect of the

16 case for investigation under ICPC supervision. This

17 call-in power can be exercised whether or not there is

18 a complaint.

19 "The question is, therefore, whether or not in all

20 the circumstances the concerns which the ICPC have in

21 writing expressed to the Secretary of State and repeated

22 both to the complainants and now in a press release,

23 constitute a matter which in the public interest should

24 be investigated under independent supervision.

25 "Although I have every sympathy with the




1 Chief Constable's sensitivity, I also think that the

2 Secretary of State and, indeed, the Government's

3 position must be considered and safeguarded. The

4 allegations of threats and intimidation by police

5 officers against defence solicitors are longstanding and

6 have been the subject of repeated expressions of concern

7 both within Northern Ireland and by various independent

8 foreign bodies and organisations, most notably perhaps

9 by the UN Special Rapporteur, whose report and whose

10 comments in the draft report on this particular case

11 have underlined the serious nature of those concerns.

12 "Ministers' cases continue to flow in, including

13 this morning from the National Committee on American

14 Foreign Policy. Given the terms in which the ICPC have

15 expressed their concerns, the way in which they have

16 done so, it is difficult for the Secretary of State to

17 accept reassurances, even from the Chief Constable and

18 the ICPC in public concert, as sufficient to overcome

19 the need for genuinely independent and fresh supervision

20 of this new aspect of the investigation.

21 "Accordingly, consideration should be given to

22 appointing a new member to the ICPC for the purposes of

23 supervising this aspect, and if the Chief Constable does

24 not do so, and he appears not to have done so, formally

25 call in the ICPC to supervise under Article 8.2 of the




1 Police (Northern Ireland) Order 1987. Anything else

2 will leave the Secretary of State exposed to criticism

3 both now:

4 "Question: What are you doing about the ICPC's

5 serious concern?

6 "Answer: Well, Ronnie has reassured me and in the

7 long-term ...

8 "Question: What did you do about the ICPC serious

9 concerns? (b) What independent scrutiny was there of

10 the investigation of the behaviour of the RUC's

11 Complaints and Discipline personnel? (c) If the ICPC

12 are involved in disciplinary proceedings against those

13 officers, does their declared prejudice about that

14 behaviour vitiate any disciplinary action?

15 "Answer: Well, Ronnie reassured me but (a) nothing,

16 (b) none, (c) yes."

17 Signed Christine Collins.

18 Now, what I respectfully submit is that, as

19 John Steele indicated in his evidence, the Government

20 were sensitive to the position of Ronnie Flanagan, the

21 Chief Constable. But the concept that somehow or other

22 those sensitivities and the constitutional arrangements

23 meant that the Secretary of State was prepared to sit

24 back, not participate in terms of the outcomes of

25 decisions for which she would be answerable is quite




1 simple untenable. And while the constitutional position

2 is clear, as everyone in large organisations knows there

3 are lines where both meet and where both are blurred but

4 where there is a dominant party and the dominant party

5 will ensure that the outcomes are such as to protect its

6 position.

7 The Secretary of State in this letter of the

8 Northern Ireland Office, Christine Collins, is making it

9 quite clear to Sir Ronnie, making it quite clear to

10 others that the Secretary of State is the one whose

11 position has to be protected.

12 But, again, in relation to all of these matters, the

13 evidence of John Steele is vital because the evidence of

14 John Steele was quite simple: when it comes to dealing

15 with this matter, the primary concern was to ensure that

16 it did not reach the public arena because if it reached

17 the public arena, what would occur would be those who

18 had been criticising the police precisely in the terms

19 of the allegations which were being made against

20 solicitors and against their independence and associated

21 with their clients would be reinforced and reinforced

22 specifically at a time when it must be remembered that

23 the Cumaraswamy Report had only come out in March of

24 1998. And here we are in July of 1998 with a festering

25 problem which had continued from the initial response of




1 complaints being made by Rosemary Nelson in February of

2 1997.

3 The real difficulty that the Northern Ireland Office

4 was having to face was that these issues of complaints

5 and threats were placed into, as -- it is a byzantine

6 circular system where no one has to take responsibility,

7 but what you make sure is it doesn't land on your desk,

8 and if it does, it moves off very quickly on to someone

9 else's. It is the antithesis of an authoritative

10 consideration of problems. It is more than dynamic

11 inertia. What it is is an avoidance of responsibility,

12 an avoidance of responsibility because, particularly in

13 relation to this issue of complaints about solicitors

14 and Rosemary Nelson in particular -- as John Steele in

15 his evidence to you quite graphically illustrated: how

16 does it look for the RUC in the public eye to have to

17 say, "You are not even fit to investigate complaints

18 within your own organisation which have emanated from

19 officers and we have to bring in an outside force?"

20 And one of the matters for the

21 Northern Ireland Office and its concerns, and it is

22 detectable not only at this level in the evidence of

23 John Steele, it is detectable at virtually all levels:

24 you must not let the public -- and these are his

25 words -- see what is going on behind the scenes. It




1 would be too shocking for them to accept.

2 That culture of itself was vital in the

3 Northern Ireland Office to their failure to deal with

4 complaints, because the last thing in the world they

5 wanted was public exposure of police officers within

6 a system where police officers quite literally could not

7 be disciplined because no findings could be specifically

8 made against any of them. And the concerns at this time

9 are also heightened because, again, we are in a period

10 of transition. And what was John Steele's reaction to

11 the Geralyn McNally position? It wasn't that she was

12 operating in a professional way or that Mr Donnelly was

13 operating in a professional way to deal with the issue

14 of complaints against a background of personal

15 hostility, demonstrated by officers at a personal level.

16 His reaction was quite simply: this is an opportunistic

17 approach by the ICPC in their final throes to assert

18 their authority.

19 And yet that being his attitude, he remained behind

20 to try and resolve the conflicts which he saw between

21 them and the others engaged in this process when he

22 already had a very biased and jaundiced view of them.

23 His response when he was asked by Mr Phillips did he

24 think that was a proper approach, said, "They didn't

25 know what my views were". Well, the point about people




1 who are in decision-making positions is that you declare

2 your bias and once it is recognised by others, then you

3 have the decision whether you should continue on.

4 But to conceal your bias is unfortunately an

5 integral part of the how of Northern Ireland Office

6 operated. And the illustration which establishes that

7 beyond any doubt is John Steele's attitude to solicitors

8 himself and to the attitude which he believed others in

9 high positions of authority within the police service

10 and, indeed, the NIO would conduct themselves.

11 He said, rather tellingly and with a significant

12 degree of candour, when asked about his view of

13 solicitors:

14 "Well, solicitors are no different from any other

15 group of people."

16 He said:

17 "There are likely to be levels of them, some of whom

18 may well not be behaving according to professional

19 standards and some of them may well even be under the

20 influence or the persuasion of unlawful organisations."

21 When asked is there any evidence of that, he said:

22 "Absolutely none."

23 And I wouldn't be saying that outside this tribunal.

24 Now, that commends itself because quite obviously

25 the comfort that he felt within the Tribunal is unlikely




1 to have been one he would have experienced in a hostile

2 environment, and his candour has more implications

3 unfortunately than just that. The implications are that

4 these attitudes were held, and once people hold

5 attitudes of that nature it is very difficult for them

6 to discharge their functions without a degree of

7 influence, if not prejudice, being brought to bear on

8 how they perceive the nature of problems and the

9 resolution to problems, and that undoubtedly was the

10 position within the Northern Ireland Office.

11 When asked about Sir Ronnie Flanagan -- and

12 Sir Ronnie relies on this in his submissions -- would

13 Sir Ronnie have held these views, he believed that he

14 did hold the views that were prejudiced in relation to

15 solicitors. Sir Ronnie, in fairness to him, I think,

16 comprehensively set out to establish that these were not

17 views that he held. And I, for one, on the basis of

18 that evidence and his assertions would tend to accept

19 that.

20 But that's not the problem. The problem in the

21 Northern Ireland Office is that someone like Sir Ronnie

22 was perceived by them to have these views. But he then

23 went on to make two further comments, one of which,

24 I respectfully submit, is devastating in terms of the

25 culture within the NIO. The first response is he didn't




1 believe that Sir Ronnie would have said it. Why

2 wouldn't he have said it? Firstly, he wouldn't have

3 said it because there is no evidence to support it and

4 he's too bright a man.

5 Well, obviously, if they were said by Assistant

6 Chief Constable White, that is one category he doesn't

7 fall into. The second answer, and the more telling

8 answer, is he wouldn't have said it in front of

9 Param Cumaraswamy. In other words, we, within a close

10 circle of individuals, have a comfort zone in relation

11 to expressions of opinion and attitudes.

12 Param Cumaraswamy did not live within that comfort zone

13 because Param Cumaraswamy's primary function was there

14 to obtain, he believed, evidence to support the opinion

15 which he had already come to, namely that there was

16 a problem of attitude which was existing within the RUC.

17 But what does it tell us about the

18 Northern Ireland Office? It tells us that within the

19 Northern Ireland Office, John Steele found nothing

20 objectionable about the holding of those attitudes. He

21 held them at least partially, but because he had no

22 evidence, he had enough sense not to disseminate them

23 outside a group who would hold his confidences.

24 Now, my learned friend Mr Beer referred to our

25 submissions concerning the NIO being Protestant and




1 being -- I think -- I will do myself and my junior some

2 credit when I say we realised that Anne Colville and

3 Christine Collins did not fall into 50 per cent of that

4 category at least. That was not the basis,

5 unfortunately, of the remark.

6 The remark comes directly from John Steele and what

7 he was referring to in fact was not the constituent

8 make-up in terms of female, Protestant, Catholic, he was

9 describing what is a cultural attitude within the NIO

10 and a cultural attitude within the NIO which tended to

11 reflect that of the majority male Protestant community

12 in Northern Ireland in its attitudes:to solicitors who

13 are appearing for Republicans: namely they are using

14 NGOs, what they are really doing is involved in

15 subversion of the whole state. That we will deal with

16 them professionally when they come in, but how

17 professionally did they deal with them? And the answer

18 to that is not very because in terms of all of the

19 responses that were received within the threat

20 assessment procedures, none of them were alert to

21 ensuring that answers were received to correspondence

22 which was sent. And answers which were received were

23 inflated in terms of their significance to meet nothing

24 else other than, well, that's over for me, there is

25 nothing more I need to do.




1 One of the matters that is entirely a matter for

2 you, but I suggest nonetheless it is significant and

3 important: Anne Colville at a very basic level was

4 handling complaints. No training in dealing with the

5 level of threat assessments. She had no knowledge of

6 how they went, but she was basically at the coalface.

7 Christine Collins was the Head of the Police Division

8 and you may well think a much more sophisticated witness

9 when she came to give evidence. And one of the matters

10 that we have been criticised for is the level of

11 criticism which we level at Christine Collins.

12 Well, Christine Collins knew and understood the

13 system between KPPS and complaints, and when she gave

14 her evidence, it was obvious that she was aware that the

15 acceptance of the bargain basement responses from the

16 police were not acceptable at a level of conscientious

17 discharge of duty within the NIO. And what she gave

18 evidence of was of what ought to have happened at least

19 at a very simplistic level but of which there is no

20 evidence that it did happen.

21 Christine Collins' evidence in terms of the

22 documentary support: there is nothing to support the

23 contacts that she alleged she made with the

24 Command Secretariat following up on their

25 correspondence; not supported by the police; there is no




1 documentary evidence that it is supported within the NIO

2 and her evidence was that she invariably kept attendance

3 notes recording discussions that she had had, but in

4 this case there wasn't any. And when she came to deal

5 with her recollection, while she believed that that's

6 what she did, she couldn't be certain, she couldn't be

7 sure.

8 Now, what I respectfully submit is that what one is

9 dealing with are threats to the life of a solicitor as

10 against a background of causing grave anxiety within

11 Government circles, and while it is appreciated that

12 Government had much more on its mind than

13 Rosemary Nelson, Rosemary Nelson was a thorny problem.

14 It was a thorny problem which at each turn was

15 generating more difficulties and generating more

16 difficulties because one has the continuing problem from

17 1997 of the complaints from the ICPC. 1997 brings in

18 Param Cumaraswamy. The number of international bodies

19 that are engaging with it are substantial and

20 significant. In 1997, Colin Duffy is arrested,

21 Rosemary Nelson is at the heart of an imaginative

22 campaign in order to establish that the basis upon his

23 arrest and his detention in custody were themselves

24 flawed and unlikely to withstand proper scrutiny.

25 So she is engaged at that stage with a number of




1 international bodies. Mo Mowlam, as I have indicated,

2 has all of the witnesses brought to her attention on

3 7 July through a very lengthy document from British

4 Irish Rights Watch from Jane Winter, setting out a grid

5 system of all of the persons and Jane Winter indicating

6 that while she is not sending her actual copies of the

7 statements of the witnesses, that she has read them in

8 setting out a brief history of their content.

9 I mean, Rosemary Nelson was not an insignificant

10 problem. Rosemary Nelson was representing also at the

11 same time the Garvaghy Road Residents Association.

12 Threats to her life could not be dealt with in an

13 offhand way, if they were ever being properly addressed.

14 But as I have already said, the problem is they were

15 being addressed not as threats to her life from the

16 Loyalist community, but as complaints being made about

17 the police where the outcome of police actually doing

18 anything in relation to causing her hurt or harm they

19 believed to be unlikely.

20 So if one deals with all of these matters,

21 I respectfully submit the only conclusion that one can

22 come to is that there have been significant failures

23 within the KPPS in the sense that, whether or not she

24 was admitted to the KPPS, they were the people who had

25 the expertise in order to make an assessment, not only




1 an assessment themselves, but by referring -- and the

2 contacts that they had within the Security Branch. And

3 another curiosity about Mr McAuley's statement was

4 Mr McAuley worked within the Security Branch. And at

5 paragraph 25, he points out that the NIO had no

6 difficulty coming back to him looking for reassessments.

7 In other words, this suggestion from the NIO, oh, you

8 couldn't do it. Well, it is not his experience in

9 dealing with it and perhaps if I do just bring that up

10 for the moment -- yes, it is at RNI-841-123,

11 paragraph 25 (displayed):

12 "I have been shown a letter dated 23 December 1998

13 from me to Mr G115, but again, signed by [blank], which

14 is advising on several options for security measures for

15 Mac Cionnaith and Duffy. Again, I did not see this

16 letter, but it looks fairly standard. Sometimes people

17 whose security we had assessed or their solicitors would

18 comment if they were not happy with it and the NIO would

19 refer it back to us for another analysis. Generally,

20 the only review I would actually instigate would be to

21 take people off the scheme rather than to put them on

22 it."

23 Now, at the end of the day, the

24 Northern Ireland Office position is, in opening it: we

25 can't do that. The subtleties of the questions that




1 were put to Mr Beer by the Chairman: could you not go

2 back and ask them have they considered? And he said,

3 "The answer to that is yes, we can do that, but we

4 couldn't go and ask them to reanalyse what had already

5 been done". According to Mr McCauley, the NIO would

6 refer it back to us for another analysis.

7 The difficulty is the disconnect between the theory

8 and the actuality. The actuality is that those who were

9 knowledgeable of how the scheme worked had no such

10 restraints imposed upon them, and one of the criticisms

11 that Mr Beer made of the family's submissions was that

12 we failed to understand the close daily relationships

13 between the police and the NIO and, therefore, what to

14 an ordinary observer without inside knowledge as what he

15 described as abrupt or terse answers in letters, has to

16 be considered against the background of the close

17 association and contacts.

18 Well, the problem with that reply is that we have

19 nothing other than the letters and the communications.

20 We do not have the conversations in corridors which

21 would have illuminated our understanding as to precisely

22 what the Northern Ireland Office did to assure

23 themselves that the concerns that were being expressed

24 were being properly addressed. But what we do have is

25 something which is contrary to the position which is




1 expressed by the Northern Ireland Office in their

2 current positions, namely those who had the expertise

3 within the KPPS had no hesitation in going back to them.

4 The problem, of course, is that it comes back in

5 a circular way. If you put threat assessments into

6 a complaints department, what you are likely to get is

7 complaints responses. You are not likely to generate

8 the type of proper assessment that was being sought

9 because the people that they have the relationships with

10 are not those in Security Branch; they are those in

11 Command Secretariat who themselves deal with complaints.

12 Now, the one person who ought to have understood

13 this is Christine Collins because she was head of the

14 whole division, and what I respectfully submit -- the

15 response of the Northern Ireland Office in directing

16 these matters into complaints division is not simply an

17 individual one, it is a structural problem they had in

18 dealing with Rosemary Nelson and the complaints that

19 were generated and the threats that were alleged against

20 her, and a structural problem in terms of how they

21 handled these matters, but also an attitudinal problem

22 in how they perceived her.

23 So, therefore, I respectfully submit, I'm tempted to

24 return to chapter 9 only to deal with the issues of the

25 non-governmental organisations, the suggestion being




1 that Rosemary Nelson was motivated by nothing other than

2 generating mischievous, ill-intentioned propaganda

3 against the State without any necessary desire for an

4 outcome which would have resulted in security measures

5 being applied to her.

6 But I'm going to resist that temptation. I'm going

7 to invite you to read it with the same degree of

8 scrutiny that I have. And what I would respectfully

9 submit is that the instances that are used whenever one

10 examines them, the first thing to bear in mind is that

11 the family do not rely on every individual who wrote

12 claiming to be writing on behalf of or with knowledge of

13 the complaints of Rosemary Nelson. Secondly, that

14 within that group of individuals there is a lady called

15 Wasser who appears to have generated the most

16 significant of the issues which you have to grapple

17 with. But I would respectfully submit, read her

18 evidence and you will not have to grapple terribly long.

19 Throughout her evidence which she gave -- she was

20 visiting from Canada, she met Rosemary Nelson and she

21 met Rosemary Nelson prior to a meeting with the

22 Chief Constable. And what she indicates throughout her

23 evidence: I have no specific recollection, what I had

24 with Rosemary Nelson was a general conversation. At the

25 end of her evidence she actually uses the word




1 "confabulate", that in other words when you are, like

2 anyone with memory, we tend to look for coherency in

3 disjointed recollections. Confabulation is when you

4 make that the story that you actually heard instead of

5 the process that you have gone through.

6 But the important matter of all of her evidence is

7 that quite literally the main suggestion is that

8 Rosemary Nelson told her that Rosemary had had

9 a face-to-face meeting with the Chief Constable in which

10 the Chief Constable expressed pejorative views and

11 indicated that he had no intention of supplying her with

12 security.

13 The problem with that intellectually is that how

14 likely would it be that Rosemary Nelson would herself

15 confabulate a meeting with the Chief Constable, relate

16 the details of it to an individual whom she knew was

17 meeting the Chief Constable so that that individual

18 could broach those subjects with the Chief Constable?

19 I mean, it is so improbable, because Rosemary Nelson or

20 anyone else would know the first thing the

21 Chief Constable replied reply was, "This is ridiculous.

22 I have never had a meeting face-to-face with

23 Rosemary Nelson." It would be an immediate loss of all

24 credibility for an individual who at that stage was

25 seeking to make complaints.




1 The evidence when you read it as a whole, it is

2 quite obvious that there was a general conversation

3 about the respective operations of the legal systems and

4 lawyers within them, and during the course of that

5 general conversation there have obviously been a number

6 of matters for debate which the passage of time and the

7 lack of clarity and memory has unfortunately confused

8 into a consistent product which meets the requirements

9 of the reteller, but not the requirements of anyone

10 objectively assessing its accuracy.

11 So what I respectfully submit is that, again,

12 whenever one looks at this written submission -- the

13 written submission, as I say, is central. It is central

14 because chapter 8 finishes with the invitation to the

15 Tribunal that in order to resolve a number of conflicts,

16 we are going to have to consider all of these matters in

17 relation to, what is revealed in chapter 9, is now the

18 current understanding of the NIO which, it would appear,

19 seems to have lifted the mote from their otherwise

20 benign eye. But the importance of it is it is also how

21 they finish.

22 When one looks at their oral submission, the oral

23 submission was quite literally an attempt to distance

24 itself from the content of the written submission at

25 least in that regard. It is a curious state of affairs.




1 There are many curious state of affairs that this

2 tribunal has thrown up. That, I respectfully submit,

3 however, is one of the most bewildering.

4 It is bewildering how an organisation such as the

5 NIO could suggest that it was impervious to the

6 attitudes which were prevalent throughout the

7 Northern Ireland security community in relation to

8 Rosemary Nelson in 1997, 1998, 1999, but now they see.

9 And I respectfully submit that it is more likely that

10 these are the attitudes that, as John Steele expressed,

11 were felt but not expressed. But, again, because of the

12 methodology that has been employed by this tribunal,

13 they felt able to express even in the reserved way of

14 saying there are issues you will have to deal with. But

15 they are against the background of the suggestion that

16 everything that Rosemary Nelson did over a period of

17 three years in pursuing complaints was motivated only by

18 the desire of causing embarrassment to the

19 Northern Ireland Office, the Government and the police.

20 The problem again is that all of the witnesses who

21 have given evidence on behalf of the

22 Northern Ireland Office say that they found her concerns

23 genuine and, Miss Collins, genuine but misplaced.

24 John Steele found her genuine. Everyone, P146, even the

25 investigating officer, when asked before this tribunal,




1 one of the most curious -- and we deal with this in our

2 written submission -- is the attitude in the report in

3 1999 which may have been seen as hostile, but maybe for

4 specific operational reasons, namely identifying with

5 the officers who themselves, he believed, were under

6 attack. But when asked specifically by this tribunal

7 how did he find her, he found her a genuine individual.

8 Her problem, if it was a problem, was that she did

9 seek to address the issues through non-governmental

10 organisations. One of the matters, again, which causes

11 some distress to the family is the suggestion that even

12 her family know that she would not have been interested.

13 The problem with that is, as Paul Nelson in his

14 statement and in his evidence before this tribunal,

15 actually believed that she had got reassurance from the

16 fact that the Northern Ireland Office and the police

17 kept coming back saying there is no threat. And that

18 reassurance was, well, if it is just the police, then

19 that's not a problem. The problem is has this gone out

20 into the wider community.

21 And that reassurance in itself was beguiling. It

22 was beguiling because she believed that one of the

23 reasons that was reducing the threat, therefore the

24 risk, and therefore she could accept that she wasn't in

25 a sufficiently vulnerable position as to require these




1 steps, was that she was giving and maintaining

2 publicity. And that is the essential matter in relation

3 to the evidence of Jane Winter. When Jane Winter gave

4 her evidence, what I respectfully submit is one deals

5 with the issues as they progressed from 1997 right

6 through to her death.

7 One of the mechanisms she believed was keeping her

8 safe was the constant exposure of the risks that she

9 believed she was running through the complaints that

10 were being made in respect to her clients and through

11 the police, and above all the genuine concern that arose

12 from the documentation that was in circulation.

13 Again, the Northern Ireland Office, in a most

14 curious submission, suggest that from reading all of the

15 papers that she would have believed that there were

16 constant documents and threats and that they were

17 emanating on a daily basis. Well, how they got that

18 impression, I simply do not know. But to get the

19 impression so that you can then show that it is false is

20 really a rather arid way of approaching the subject

21 material of this Inquiry.

22 The situation is that the threats that she received

23 and the documents, namely the pamphlet, the threat note

24 and the document that was circulated in relation to

25 Mr Mac Cionnaith where she is named, were themselves




1 horrendous documents. So what the basis of the

2 Northern Ireland Office's submission is is that because

3 these are really relatively few, we can all sit back and

4 breathe the sigh of relief on the basis that, well, it

5 could be much worse. Well, when it has reached a level

6 that is optimally bad, "much worse" really doesn't mean

7 a great deal. And what I respectfully submit is when I

8 come on to deal with what I hope now will be my closing

9 submissions, I would like to deal with some of the

10 intelligence and just its growth and development, but --

11 THE CHAIRMAN: That would be a convenient moment?

12 MR HARVEY: It would be.

13 THE CHAIRMAN: Right, we will adjourn until twenty past,

14 Mr Harvey.

15 (3.07 pm)

16 (Short break)

17 (3.24 pm)

18 THE CHAIRMAN: Yes, Mr Harvey?

19 MR HARVEY: If I just conclude my overall submissions in

20 relation to the NIO, what I respectfully submit is that

21 there was a failure, which was cultural and structural,

22 to deal with the threats that were being brought to

23 their attention through the many sources of NGOs, and

24 that part of that failure was their inability to grasp

25 that the threat that would be posed would be by Loyalist




1 paramilitaries, and the refuge that they had sought to

2 take before this tribunal is quite literally that as

3 there was no threat, there was no need for them to

4 provide advice at any level or security measures at any

5 level to Rosemary Nelson and that, in any event, had

6 they sought to do so, she would not have engaged.

7 It is not consistent with the evidence of

8 John Steele -- from Day 74, at page 158, line 16 -- who

9 indicated that if they had got a negative threat

10 assessment, they would have tried to find a way of doing

11 it without any application within the KPPS or convincing

12 her to make an application. At page 162, again, on

13 Day 74, and line 8:

14 "If we had believed a real substantial threat,

15 I think there are things that could have been done."

16 Their attitude now would appear quite contrary to

17 this: nothing could have been done. But John Steele's

18 understanding is that her failure to respond by applying

19 for all of these matters was because neither the NIO

20 understood there to be a real threat, which is

21 a complete failure on their part, and because of their

22 complete failure to communicate with her she sought

23 comfort in the assurances that she directed or derived

24 from their non-responses.

25 So what I respectfully submit is it is somewhat




1 disingenuous of the Northern Ireland Office now to claim

2 there was nothing they could have done. There is lots

3 they could have done. They were an intelligent group of

4 imaginative people who would have devised a way, and

5 Rosemary Nelson was an intelligent, bright woman who, if

6 there may well have been aspects of security that she

7 would have been reluctant and unwilling to undertake,

8 like many individuals, for example, refusing to carry

9 a firearm, that nonetheless does not mean that she was

10 not entitled to the benefit of the advice, the

11 assurances and the measures which the NIO could have and

12 would have provided had they properly applied their

13 organisational skills, their organisational resources to

14 understanding the nature of the threat and risk that she

15 faced.

16 THE CHAIRMAN: The State's obligation to Rosemary Nelson is

17 totally separate from any reaction by Rosemary Nelson to

18 the discharge of that obligation.

19 MR HARVEY: Exactly. And in other words, provided they

20 discharge their responsibilities, her response then

21 falls upon her own head.

22 One of the matters that one knows is that when

23 individuals from offices of state approach you, then you

24 are likely to see things in a significantly different

25 light, you are likely to approach issues of your own




1 security. One of the matters that they did refer to in

2 relation to those who were killed -- security, it is

3 often said, is likely a seamless coat. None of us have

4 it all of the time and permanently. Our attitudes to it

5 tend to fluctuate and they tend to fluctuate depending

6 upon not only current circumstances in terms of an

7 environment which is external to you, but how you feel,

8 what you are doing, what you are engaged in.

9 It is noticeable that everyone in Northern Ireland

10 has a different response to how they approach their own

11 security. When you enter a building such as this on the

12 first day of the opening, there is a noticeable

13 lessening of tensions in terms of security. That is not

14 a good thing, but it is an inevitable human response.

15 It is an inevitable human response that we all begin to

16 feel comfortable in our daily lives, and each time the

17 threat is not realised, there is a further relaxation of

18 our own concerns.

19 But at least that is the individual choice. When

20 your choice is made in ignorance of the threat that you

21 are under and, therefore, you are making hypothetical

22 choices as to what you will or will not do, it is quite

23 wrong to extrapolate from that position how you would

24 react if these matters are brought to your attention.

25 Again, just finishing on this, one of the concerns




1 that one has from the Northern Ireland Office response

2 are quite simply the variety of explanations that have

3 been provided for not approaching her. Those variety of

4 concerns, however, may well gravitate down to that which

5 most occupied the thoughts of John Steele, namely she

6 would go to the press and where does that leave us. We

7 have already had Pat Finucane dead, a headline saying

8 that the State, as a result of perhaps complaints that

9 an individual has made, emanating from officers of the

10 police in whatever guise, now requires protection.

11 Well, the answer to that is so what? So what?

12 I mean, if she goes to the press and says it, it will

13 be, like most things, overtaken by the next serious

14 crisis. But the State has its duty and it does not

15 avoid its duty by simply saying we find this

16 embarrassing, and ultimately that is the real substance

17 that lies behind suggestions she will go to the press.

18 It is, "We will not be embarrassed".

19 So what I respectfully submit, therefore, when one

20 looks at all of these matters, there were significant

21 features which should have led them to understand that

22 Rosemary Nelson was under threat. The position that we

23 now have is the disclosure of the intelligence material

24 and the witnesses who have given evidence would indicate

25 that the level of threat was much higher than that which




1 I would have said was significant and substantial and

2 would have brought her within Article 2, even if that

3 was not required for the purposes of the KPPS.

4 The attitudes within the security services, within

5 the Special Branch, Security Service and the

6 intelligence that has been received from the RIR all

7 suggest that there were cultural attitudes which were

8 prevalent at all levels and at all levels which they

9 actively sought to conceal from this tribunal because

10 they knew the discredit that it would bring upon them.

11 And what I respectfully submit is that one firstly goes

12 to some of the intelligence material. Ultimately when

13 Rosemary Nelson was murdered, there was a document which

14 was circulated obviously by a Loyalist group entitled

15 "Monster Mashed", and it is at RNI-401-133 (displayed).

16 I wonder could that be brought up.

17 I don't intend to read every word of it because I'm

18 sure the Tribunal is familiar with it. There are,

19 however, a number of features of what is contained

20 within it which are important in terms of the background

21 material available through the disclosure of the

22 security material.

23 What I respectfully submit is firstly -- I'm tempted

24 to say like the Northern Ireland Office there is

25 a degree of pious hypocrisy about the suggestion it is




1 regrettable that she died, but nonetheless here are the

2 following facts. The following facts that they set out

3 in this material are firstly she was a human rights

4 lawyer, but there was nothing further from the truth.

5 In other words, while masquerading as a lawyer operating

6 ostensibly according to professional standards, those

7 standards she set aside at the instance and the

8 instigation and on behalf of an organisation which was

9 committed to the destruction of Ulster and the death of

10 its citizens.

11 They have indicated that: she was a prominent player

12 in the IRA's murder machine; that she was a bomber; that

13 her disfigurement was a result of her bombing activities

14 on behalf of the IRA; that she was the house lawyer for

15 the IRA in the area of Lurgan; that she was inventing

16 complaints against the RUC and UDR men; that, 7, she had

17 access to confidential files; that, 8, she was involved

18 in anti-interrogation techniques; 9, that she knew how

19 to prepare her clients before and after murders; 10,

20 that her most high profile client was Colin Duffy; and

21 11, that she was a close associate of

22 Breandan Mac Cionnaith in the neighbouring town of

23 Portadown.

24 What I would invite the Tribunal to do is to examine

25 those assertions as against the attitudes which were




1 displayed towards her within the police, the RIR and the

2 Special Branch, both at regional, local and at senior

3 management level within the -- the Secretariat and the

4 IMG. And immediately what strikes one is the reflection

5 of these views within the intelligence material and

6 a reflection of those items within the intelligence

7 material which would lead one reasonably to conclude

8 that these in fact have been filtered down into the

9 Loyalist community via the security community or via

10 local police or RIR soldiers.

11 The two most striking matters in relation to this,

12 if one leaves aside the complaints because those

13 undoubtedly were prevalent at the time, that it would

14 have been known that those whom Rosemary would have

15 represented were detained in Gough Barracks, it would

16 also have been known that most of them would have been

17 released without charge, it would also have been known

18 that Colin Duffy himself was acquitted on one occasion

19 of the murder of Mr Lyness and, as a result of the

20 intervention of the Director of Public Prosecutions, was

21 released on 2 October 1997 on the basis that there was

22 insufficient evidence to justify a prosecution.

23 But access to confidential files, knew how to

24 prepare clients before and after murders: What one says

25 is those are direct lifts from intelligence material.




1 Those aren't just casual insertions in a document

2 produced by a fevered mind without some insider

3 knowledge of precisely what was happening. Individually

4 these matters are of significance in themselves. The

5 collective, combined weight of having them all in one

6 document, however, is where the true significance lies.

7 What I respectfully submit is that one can see, when

8 one looks at the intelligence material, if one goes --

9 I believe we have this at -- it is at RNI-926-089

10 (displayed). This is basically dealing with

11 intelligence from the Ministry of Defence, the source

12 being the Royal Irish Regiment.

13 One sees that from the instances that are first

14 recorded, they go back to 1995 and the following of her

15 practice. And at the end of this page, the grid

16 system -- could you just highlight the bottom before

17 I return to the --:

18 "Shane Duffy and anon enter Rosemary Nelson's

19 practice at 21.13 hours. It has been used to represent

20 PIRA suspects in the past."

21 It is dated 31 May 1995. The next entry is

22 16 October 1995:

23 "Member of PSF and a female from Rosemary Nelson's

24 office walking into Lurgan police station. Likely that

25 it was to do with a protest where two PIRA members were




1 charged. Nelson represents all PIRA suspects from

2 Lurgan in court cases."

3 Now, we will just deal perhaps with the next one,

4 which is 18 October:

5 "PIRA members go to Rosemary Nelson's office at

6 14.14 hours and leave at 14.38 hours. Notes that the

7 second time in the past few days Lurgan PIRA have used

8 Rosemary Nelson solicitors."

9 Now, if one could just go back over the page and

10 deal with the second entry, it is at 511-043, which is

11 11 March 1996, but what it does show is in relation to

12 Rosemary Nelson's alleged paramilitary sympathies:

13 "Interesting sighting of Shane Duffy and two other

14 PIRA associates at Rosemary Nelson solicitors, which may

15 have been targeting of Lurgan RUC shift changeover. See

16 also 511-050."

17 What is remarkable throughout all of this is how one

18 sighting of one event leads to speculation as to

19 precisely what is happening, and the association is

20 always that somehow or other the connection between the

21 IRA, the people attending Rosemary Nelson's office, is

22 of itself suspicious and involves unlawful activity.

23 The important matter in relation to this element on

24 11 March 1996 one finds in fact the very next month when

25 one looks at the Special Branch intelligence. Lo and




1 behold there is a report that Rosemary Nelson is

2 collecting information on the security forces, something

3 that has never happened before in that intelligence. It

4 almost appears to be a direct lift from the Army

5 intelligence, and what we do know, because it is

6 indicated in this intelligence, is that on occasions the

7 RIR intelligence is reported to the Security Branch who

8 report it afresh as if it is new.

9 But this is purely speculative but very damaging.

10 Very damaging because the RIR -- as one knows, in any

11 community, the priority of occupations depend upon the

12 qualifications that are necessary and the standards that

13 they impose. In Northern Ireland the preferred

14 standards would have been the police, the Prison Service

15 and the RIR. The RIR was the old development from the

16 UDR, which, as well as having a permanent establishment,

17 had a substantial number of part-time soldiers.

18 But if one then goes on, goes back over the page,

19 and returns to the second of 11, this is within a very

20 short period of time. It is 511-010, 2 November 1995:

21 "Shane Duffy and anon sighted at Rosemary Nelson

22 solicitors probably in relation to their arrests at the

23 recent illegal PSF protests. Rosemary Nelson normally

24 the solicitor used by Republican suspects in Lurgan."

25 Now, she'd gone from, this is the second time in




1 a few days -- to being the normal solicitor used by

2 Republican suspects and, again, a preparedness to

3 speculate as to precisely why these people are going

4 into her office.

5 The next entry -- and I'll just skip down through

6 them -- are quite literally:

7 "Anonymous PIRA sighted entering Rosemary Nelson's

8 office."

9 Gives the date and time. Next entry, on

10 29 January 1996:

11 "Female sighted at 18.20 hours coming out of

12 Rosemary Nelson's office. Could be in relation to the

13 free Duffy campaign. PIRA member leaving Lurgan RUC

14 with solicitor from Rosemary Nelson's office."

15 Next entry:

16 "PIRA member entering Rosemary Nelson's office at

17 9.30 hours on 8 February. She and Duffy entering

18 Rosemary Nelson's office at approximately 15.55 on

19 11 March and leaving at 16.14. Rosemary Nelson

20 announced that appeal for Colin Duffy will call on

21 intelligence services to give evidence at appeal

22 hearing, thereby exercising law on disclosure."

23 One simply has to say how does that find its way

24 into an RIR intelligence document:

25 "Rosemary Nelson sighted with former PIRA member




1 entering Lurgan RUC station. Upon exiting, they went to

2 the office."

3 Next entry in July of 1996:

4 "She and Duffy sighted going into Rosemary Nelson's

5 office which could be linked to forthcoming PSF parade

6 in Lurgan. See 511-06 where it states that

7 Rosemary Nelson processes all the documents for these

8 protests.

9 "PIRA member coming out of Rosemary Nelson's office,

10 probably in connection with Duffy trial. Colin Duffy

11 and his wife and daughter ..."

12 This is on 25 September 1996 after he has been

13 released from custody.

14 THE CHAIRMAN: I don't quite understand the relevance of

15 reading these out. Should I just say why I'm a little

16 puzzled? If soldiers are carrying out either

17 surveillance or observations or patrols, aren't they

18 under a duty, if they are carrying them out properly, in

19 fact to record the sort of thing that is in this

20 document?

21 MR HARVEY: Yes, but it is not the simple records, it is

22 their speculation as to what is happening which

23 associates Rosemary Nelson with the end product of what

24 they are seeing. But also the important matter -- and

25 I don't intend to read out any more -- I think I have




1 got your point -- is quite simply: this all stops.

2 THE CHAIRMAN: But even the speculation would be perfectly

3 proper to record. What would be entirely wrong is if it

4 was disseminated.

5 MR HARVEY: That's the problem, and when it comes to dealing

6 with the RIR, undoubtedly what has happened within the

7 wider community and accepted, what Rosemary Nelson with

8 a constant attendance -- not a constant attendance

9 because over the period of time it appears there were

10 only 20 observations of individuals who may have had

11 associations with the PIRA going into her office, but

12 the acceptance by these in these reports that there is

13 something which is sinister, which associates her with

14 her clients and which is disseminated back into the

15 community.

16 And one of the matters, again, that was referred

17 to -- and no matter how discredited A188 may have been

18 as a witness, he certainly was a most unhappy witness in

19 terms of the information that he provided. The question

20 for the Tribunal is: how representative were his views

21 within the RIR?

22 One thing is absolutely certain: those views bring

23 no credit upon that regiment and the regiment itself

24 would have been anxious to protect its reputation from

25 an association with the expressed views. The expressed




1 views in public would be denied, but were they the

2 expressed views behind the closed doors of the comfort

3 zone? And I respectfully submit that is a problem

4 because within this document, A188 undoubtedly claimed

5 that he was told that he was told that Rosemary Nelson's

6 disfigurement came from her involvement in a bomb, that

7 it finds its way into the "Monster Mashed" document is

8 extraordinary.

9 It is extraordinary because the suggestion is it is

10 so ludicrous and ridiculous, what must we do? We must

11 discount the possibility that this soldier was provided

12 with this information by a police officer. But why

13 should we do that? The one thing that is certain is

14 that no matter how ludicrous the suggestion, this

15 suggestion is not being made to individuals who are

16 likely to subject the document to the cold subjective

17 and critical eye of a scrutineer who is himself

18 sceptical as to the accuracy of information. This

19 document is being fed into a community which is being

20 conditioned to accept that Rosemary Nelson's association

21 with her clients is an unlawful and unlegal one.

22 So what I respectfully submit is that when you go

23 down through it, the remarkable thing is that when it

24 comes to 1997 this virtually stops. And what is taken

25 over is that the Security Branch individuals who then,




1 of themselves, start to monitor a number of different

2 activities of Rosemary Nelson, but the most important

3 matter is the access to confidential files.

4 That is a straight lift. It is a straight lift from

5 the position of a document which was generated in 03,

6 1998 at RNI-542-089 (displayed). And this document has

7 been generated -- if one goes over the page:

8 "Rosemary Nelson permits member of Lurgan PIRA to

9 read confidential legal case note documents in the

10 secrecy of her office."

11 Now, what I respectfully submit is it is just

12 extraordinary that there should be a reference to

13 confidential files in a document that is emanating from

14 a Loyalist terrorist group or an individual who has an

15 intimate knowledge of what they are doing.

16 But it is also from the RIR that a suggestion comes

17 that false alibis are being provided for Colin Duffy in

18 1997. In spite of the feelings that were held at IMG in

19 relation to this particular aspect, there is no

20 Special Branch reporting of it. The only reporting of

21 it is the RIR and yet it finds its way into this

22 document, "Monster Mashed". It finds its way in the

23 Special Branch documents into those that are prepared in

24 relation to Operation Indus, but not in raw

25 intelligence.




1 What I respectfully submit, therefore, is when one

2 looks at this, a lot of these matters are matters which

3 emanate from what occurred in Gough Barracks and the

4 understanding within the Loyalist community as to what

5 her role was, and what is remarkable and a singularly

6 remarkable feature of the evidence that has been

7 produced -- I do not intend to refer to it, but ask you

8 again to read it -- when dealing with the

9 Special Branch, every single Special Branch officer at

10 local level and regional level had a collective amnesia

11 as to what their response to Rosemary Nelson was in

12 1997, 1998 and 1999. It was only when the documents

13 were produced to them that they began to have again the

14 mote dropped from their eye and the realisation suddenly

15 descended: no, she was just an ordinary solicitor; she

16 in fact was an individual with a close association and

17 working to the agenda of unlawful organisations.

18 I simply find it extraordinary that Special Branch

19 officers, against the background of what was occurring

20 in Lurgan throughout those years, could have forgotten

21 a short time after her death what their true feelings in

22 relation to her were. That persons at regional level

23 should also have such amnesia is quite literally

24 inexplicable, except on the basis that this all, far

25 from being the hardcore intelligence that it was




1 presented as to IMG, recognised that it was little more

2 than the destructive circulation of prejudiced material

3 for which there was no factual basis, which would be

4 susceptible to scrutiny or analysis. And therefore, the

5 best line of defence once she has died is the defence of

6 saying: know nothing about it, perfectly good

7 respectable solicitor. The information having leaked

8 into the Loyalist community, it is reflective of the

9 attitude of Sir Joseph Pilling, whenever Rosemary died,

10 when he tried to contact the director of the --


12 MR HARVEY: -- the DCI. When he tried to connect the

13 director of intelligence -- don't contact the police

14 because it will heap even more opprobrium on them. And

15 their attitude quite literally when she died is -- it is

16 quite obviously the first reaction, and that tribunal

17 met that first reaction -- deny that there was any

18 culture which associated her with her clients or

19 associated her in any way with criminal conduct. And it

20 was the production of the documents and in the face of

21 those documents the attitudes changed, and one asks why.

22 Perhaps the answer was provided by

23 Sir Ronnie Flanagan, that having examined this material,

24 that quite literally it contained matters of no moment

25 other than the fact that they were being expressed,




1 which is of every moment.

2 The fact that these prejudiced and coloured opinions

3 were held is one thing; but the realisation that they

4 were being disseminated into the Loyalist community is

5 what made them really dangerous. And undoubtedly,

6 I respectfully submit, one of the matters one has to

7 consider is this curious fact of the failure to

8 acknowledge how they felt about Rosemary Nelson until

9 confronted with the documents based on the fact that

10 there was an awareness that these were matters which

11 were in circulation and, being in circulation, everyone

12 knew the heightened and increased risk that

13 Rosemary Nelson was under.

14 So what I respectfully submit in relation to this is

15 that before this tribunal began its work, one had not

16 got the slightest inclination from any source

17 structurally within the RUC that Rosemary Nelson was

18 regarded as anything other than a fairly professional

19 solicitor doing a fairly good job on behalf of her

20 clients.

21 Over the ten years that she has been murdered, that

22 has been the consistent theme that has been presented to

23 the public and to such a degree that even those against

24 whom allegations were made that they had cast aspersions

25 on her professional reputation and on her personal




1 behaviour, that they denied that there was ever such

2 a suggestion, and because that of itself, I respectfully

3 submit, is eloquent testament as to the danger of

4 circulation of this type of material in Northern Ireland

5 at the time.

6 And that, again, if one comes back to the

7 Cumaraswamy incident, is the reason why there was such

8 a furore as to Cumaraswamy putting this into the public

9 domain, not that it would endanger her life any more

10 than the dissemination of this material secretly. It

11 was the exposure of the fact that these were views that

12 were held by the police and, if communicated to the

13 Loyalist community which they understood was the real

14 danger, then the RUC itself would be exposed in terms of

15 the risk which it was putting Rosemary Nelson in.

16 And what I respectfully submit is that if one looks

17 back at the document that was produced by ACC White, the

18 remarkable thing about that document is that he didn't

19 produce it; it was produced by Command Secretariat for

20 him and on his behalf. So this just wasn't his views,

21 this was views that were being expressed at a fairly

22 high level by individuals who felt a degree of

23 confidence that they could be re-led, even it is only

24 under the guise of the views that were being promulgated

25 by others such as Sir Louis Blom-Cooper. And Sir Louis




1 gave evidence before this tribunal that I respectfully

2 submit -- Sir Louis over many years has not changed. He

3 is a ruthlessly independent man of absolute integrity

4 who, no matter how idiosyncratic the position he may

5 occupy, he also does so honestly with a thorough

6 commitment to ensuring that he is open and frank with

7 everyone with whom he has dealings.

8 It is not without significance that although he was

9 the Commissioner for the Holding Centres and expressed

10 some views which caused alarm in the Law Society such as

11 the appointment of what they saw as basically

12 state-sponsored solicitors, that he was still used by

13 the Northern Ireland Civil Rights Association as their

14 lawyer in the Bloody Sunday Inquiry.

15 When John Steele came to deal with him, he said had

16 these complaints been coming from Sir Louis -- he was an

17 eminent man for whom I had the utmost respect -- I would

18 have considered them in much more perhaps open terms

19 than coming from Cumaraswamy. Well, the fact is he did

20 express those views. He did express them in a fairly

21 trenchant form before you as to the attitudes of the

22 police towards solicitors in the holding centres and

23 Rosemary Nelson and the particular vulnerabilities that

24 she felt, or that he felt she ought to have been aware

25 of, namely operating as a sole practitioner, operating




1 as a female, operating without the support of others

2 perhaps with more experience than herself. But that is

3 the problem that one faces when it comes to try and

4 assess the intelligence.

5 Undoubtedly these matters have not been addressed by

6 the PSNI, but they are grave and serious matters and it

7 is a grave and serious matter that persons at high

8 levels within the RUC held cultural attitudes which were

9 thoroughly damaging and dangerous for any solicitor in

10 Northern Ireland.

11 But the real difficulty is, as one knows, within any

12 organisation, whether it be a school, the RUC or

13 a church, the people at the lowest level tend to find

14 that their standard of conduct improves or becomes --

15 less depending upon those who occupied positions of

16 authority.

17 If it is believed that persons at higher level hold

18 those views, however prejudiced and however

19 fundamentally without basis, then they start to

20 inculcate themselves into the very fabric of the being

21 and structure of the organisation, and people feel that

22 they can express those views with immunity, provided

23 that they do so discreetly. Provided that they do so

24 that they can always be denied. But what I respectfully

25 submit is what is incomprehensible is that prior to the




1 opening of this tribunal there was not one indication of

2 any of this and it took the work of this tribunal and

3 the dedicated work of its staff to actually bring out

4 what were the real failures of those throughout the RUC.

5 The problem in dealing with Sir Ronnie Flanagan is

6 accept at face value he did not hold these views. It is

7 incomprehensible that he wasn't aware that they were

8 held, and particularly, again, going back to the enquiry

9 into what occurred at the meeting with

10 Param Cumaraswamy.

11 That was quite literally a shattering experience for

12 all concerned, and particularly the

13 Northern Ireland Office. It was a disaster and an

14 absolute disaster. And Sir Ronnie left the meeting. It

15 is incomprehensible that he didn't immediately, once

16 this report was out, say, "I left the meeting for five

17 minutes. Who said it? What did you say? Did you say

18 it? Why is it being attributed to me?"

19 The point is that while Sir Ronnie took it

20 personally, the implications for him personally may have

21 been damaging, but for the RUC as an organisation, they

22 were devastating. Devastating because at that time --

23 we must go back to 1998 -- there was still a denial of

24 any collusion in the murder of Pat Finucane by

25 Special Branch, the Army sources who were handling




1 informants or by the security services. That was still

2 the line, and here we have John Steele attending

3 a meeting, trying to persuade Param Cumaraswamy, well,

4 there can be no collusion and then all of a sudden there

5 is this remark which is simply dropped in like

6 a complete bombshell, the damage to the RUC being

7 substantial, significant and irreparable. All that you

8 can do is a damage limitation exercise and yet it is not

9 followed up.

10 Now we find those views were not only expressed but

11 expressed at the highest level and probably expressed to

12 Param Cumaraswamy, and if it wasn't Param Cumaraswamy,

13 it was by ACC White.

14 What I respectfully submit, therefore, when one

15 looks at these curiosities, the problem is that one does

16 not know what the answer is, but what one does know is

17 that the answer reflects no credit on the individuals.

18 And all that one can do is, therefore, say that the

19 truth and its exposure was more damaging than the

20 revelation of a cover-up.

21 When one comes to deal with the -- again, just in

22 a brief survey of the intelligence, what is also

23 significant is that the awareness at all levels that

24 what had been disseminated into the public arena in

25 terms of Loyalist communities was that Rosemary Nelson




1 was not operating as a professional lawyer in an ethical

2 manner, but secondly, that her relationship with

3 Colin Duffy was more than professional; that it involved

4 a sexual relationship. And that was widely held.

5 Although denied by some, the overwhelming majority of

6 Special Branch officers, security branch officers and

7 the RIR had that feature as one of those which had been

8 disseminated into the whole public arena.

9 In fact at one stage, I think it was 623 was asked

10 would they have thought of briefing the local station

11 hierarchy on the affair, and he said, "They would only have

12 laughed at you". What is the point of briefing them of

13 what everyone knew. So what I respectfully submit is

14 when one looks at this intelligence, the intelligence

15 itself, had it have been properly applied and any threat

16 assessment could have only led to one conclusion: that

17 Rosemary Nelson is already under a significant level of

18 threat. But this information means that the level of

19 threat is even higher.

20 So far from being a grade 4, a grade 3 level of

21 threat, the attitude which was held within the IMG,

22 namely that she had crossed the line and was

23 a terrorist, and when questioned by the Chairman -- that

24 was the Head of the IMG, 597, who regarded her as

25 a terrorist, but therefore thought that the threat notes




1 didn't increase the threat or the risk to her because he

2 was assessing her as an ordinary member of the public.

3 But if the Loyalist community viewed her as a terrorist

4 who had crossed the line, that was the fallacy in his

5 argument in relation to the assessments.

6 But, again, within the RUC one has this curious

7 byzantine structure, that there is no assessment of

8 intelligence at any level. And, again, I don't intend

9 to repeat it because it is covered in our submissions.

10 The receipt of the intelligence into the system was

11 sufficient to authenticate it. Once it was passed up

12 the line into the various hands of those who were

13 dealing with it at a higher level, the authentication

14 became further assurance without any examination.

15 And you did ask, Mr Donaldson, is there any

16 indication of any threat assessment ever carried out in

17 relation to -- sorry, any assessment of the quality of

18 this information? And the answer was no, but the

19 assurance that the Tribunal has is that these were

20 experienced individuals used to assessing information,

21 and that is the structural failure, unfortunately, that

22 Chris Albiston, when he became Head of IMG, when asked

23 to implement the changes of the Warner Report -- and

24 subsequently when his post was taken over by B597, their

25 attitude was: this system has stood the test of




1 25 years, we have no intention of changing it. In other

2 words, the personal vanities in relation to the

3 positions which were occupied by those individuals were

4 so longstanding -- Chris Albiston actually used the

5 phrase being parachuted in from London -- it wouldn't

6 have gone down very well. It wasn't his precise phrase,

7 "gone down", but that was his whole attitude: I have

8 been parachuted in, I wasn't going to start interfering

9 in a system which had been applied for a long time.

10 But what I respectfully submit is what is also

11 obvious is that the first reference to any affair

12 between Colin Duffy and Rosemary Nelson in the Security

13 Service department comes directly from Special Branch,

14 who simply come along and say, well, as you are all

15 aware, they are having an affair. And, unfortunately,

16 the security services just seem to have fed that into

17 their system without any questioning except that that

18 was a prevalent view within the security community and,

19 therefore, it required no further assessment by them.

20 But, again, as Ronnie Flanagan said -- he looked at

21 this -- it is no more than gossip and it is gossip that

22 has been elevated in the most damaging way to

23 Rosemary Nelson, not in the sense that sophisticated men

24 over a drink late in the evening speculating as to

25 relationships that exist between people mildly amusing




1 themselves are really going to cause damage. What

2 causes damage to the reputation -- it is fleeting and

3 passing. The real damage is when it goes out into the

4 Loyalist community who themselves see Rosemary Nelson,

5 as has been indicated within the documents, as a hate

6 figure, a figure who is determined at all costs to

7 destroy the structures of the state in which they have

8 invested, they believe, so much. And then they find not

9 only that, but she is also having an affair with

10 Colin Duffy.

11 It is little wonder, therefore, that when the

12 Private Undersecretary, Sir Joseph Pilling, became aware

13 of her death, this was the one factor which seemed to

14 galvanise him to take action, because he realised just

15 how damaging that is in the small prejudiced mean

16 streets of Lurgan and Portadown, which were themselves

17 sufficient without this type of material to generate

18 suspicion against a solicitor operating for individuals

19 who would not have held a particularly popular profile

20 within that community.

21 What I respectfully submit, when one comes to

22 Operation Indus, within the Security Services,

23 undoubtedly, the motivations that lay behind that -- the

24 attempt to bug her office, intercept her telephone calls

25 in relation to Garvaghy Road -- they are extraordinarily




1 overblown operations -- not directed against Colin Duffy

2 because there is no indication that that was the primary

3 target.

4 For some reason or other, which is incomprehensible,

5 Rosemary Nelson became inflated in the minds of the

6 local police at all levels and the attention that they

7 paid to her was direct and at the same time surrounded

8 by the circumspection of the position that she occupied.

9 Why they have failed to disclose, I respectfully submit,

10 just the nature of their interest, because one can see

11 as one goes down through the evidence: 1994, she made

12 complaints about clients; 1995, Colin Duffy's trial is

13 over, he is incarcerated. It quietens off, but

14 nonetheless the RIR pay attention to her offices. 1996,

15 once he is released, there is an escalation of the

16 reporting of the associations. No association with

17 Colin Duffy in terms of any improper relationship

18 until October or November of 1997 after he is released

19 from prison in relation to the murder of the two

20 constables in Lurgan.

21 But much reporting in relation to Mr Colin Duffy and

22 his alleged sexual proclivities with others. It only

23 comes, as one can see, almost some eight months after

24 Rosemary Nelson has made the complaint to Jane Winter

25 that the police are disseminating to and through her




1 clients that she is engaged in sexually inappropriate

2 conduct him. And it was reported by Jane Winter to

3 Param Cumaraswamy. These caused her such distress that

4 she could not go into the detail.

5 Rosemary Nelson was not unaware throughout her life

6 that these were allegations that the police were making.

7 What she was unaware of was just how serious the

8 dissemination was into the Loyalist community and by the

9 Loyalist community, I mean the Loyalist paramilitary

10 community, those who can be prompted to take her life.

11 And, again, what I respectfully submit is these were

12 matters which were known to Special Branch when the

13 assessments were made firstly in relation to the

14 Torricelli letter in 1997, the February assessment --

15 threat assessment in 1998, the assessment that was made

16 in August of 1998, the letters that were received from

17 Amnesty International with which the

18 Northern Ireland Office had chosen not to deal, the

19 letters that were received from Mr Mageean in relation

20 to the entering into of the KPPS.

21 Anybody, anyone producing a proper risk/threat

22 assessment could not have failed to understand that

23 these attitudes, if they were prevalent within the

24 Loyalist community, meant that Rosemary Nelson, given

25 her vulnerability, that is the fact that there were no




1 measures being adopted by her for her own security, was

2 so high that the risk to her life, given the level of

3 threat, was one which was both immediate, significant

4 and substantial and would easily have met the test under

5 Article 2.

6 What I respectfully submit is that when it comes to

7 dealing with these issues before this tribunal, there

8 has been a singular failure by the police and by the NIO

9 to address these issues.

10 Again, I have made other submissions in relation to

11 the missing files. Those are in writing, and unless

12 there is anything further from the Tribunal, I think I

13 would rely on the written submissions as a body that we

14 have submitted.

15 THE CHAIRMAN: Mr Harvey, thank you very much for your

16 submissions so far. We are going to adjourn for

17 a quarter of hour or so to consider what points we want

18 specifically to raise with you.

19 MR HARVEY: Right.

20 THE CHAIRMAN: We will say not before 25 to five.

21 (4.19 pm)

22 (Short break)

23 (4.38 pm)

24 Questions by THE CHAIRMAN

25 THE CHAIRMAN: Mr Harvey, speaking for myself, I would like




1 you to answer three questions. The first is: what steps

2 should the State, through its organs -- that is either

3 the NIO or the RUC -- have taken to safeguard

4 Rosemary Nelson as far as practicable?

5 MR HARVEY: Well, firstly, I take it that that question

6 assumes that there was a risk and a threat.


8 MR HARVEY: And, therefore, I respectfully submit what they

9 ought to have done was offer a wide range -- they ought

10 to have offered a wide range -- whether Rosemary sought

11 to take them or not is another matter, but I think they

12 ought to have offered her the KPPS.

13 And what is a misunderstanding in respect to the

14 KPPS is that it is not a one solution that fits all.

15 There are many persons in Northern Ireland who come

16 within the KPPS system who use it in a limited way.

17 There are others for whom it is on provided in the most

18 extensive way, and what I respectfully submit is that

19 when one looks at the area of vulnerability, well, she

20 probably was most vulnerable. The most vulnerable point

21 of attack would have been her home and, therefore,

22 within the KPPS they may well have decided to offer her

23 some form of facility moving to and from her home. They

24 may well have offered her security measures within her

25 home.




1 Where she would have been vulnerable would have been

2 particularly carrying out her work because,

3 unfortunately, as one has indicated by the evidence, the

4 preferred method of assassination by the Loyalist groups

5 was simply gun attack. It wasn't to place undercar

6 devices. But, again, the most vulnerable position for

7 that wouldn't have necessarily been the town; it would

8 have been, again, at her home.

9 So what I respectfully submit is they ought to have

10 offered her the KPPS and that ought to have been

11 tailored to meet the need which was generated by the

12 risk and the threat.

13 THE CHAIRMAN: Thank you. Now, the second question is what

14 advice do you submit that the State, through its organs,

15 should have given to Rosemary Nelson about her own

16 security? For example, about her lifestyle, her

17 associations and so forth.

18 MR HARVEY: I respectfully submit that that is perhaps one

19 of the most significant features in relation to this.

20 When the State conveys to someone that they are

21 aware of -- the words of Christine Collins are not that

22 of Article 2, but she uses "serious" and "explicit".

23 Now, the terms of the Convention -- it doesn't really

24 matter -- whenever they came to dealing with her, the

25 first advice they ought to have offered her was that




1 these people who pose the threat to you are the Loyalist

2 community, that they are unpredictable. Therefore, the

3 first thing you must do is conscientiously carry out

4 a minimum of security checks for yourself and they must

5 become part of your daily routine, however inconvenient

6 you may find them.

7 Those would be parking her car in a garage or

8 a secure position, making sure that there were security

9 warning devices around her house. Those would be by way

10 of security lights, infrared beams, which would have

11 indicated whether there was an intrusion into her

12 property which could have been activated at night. The

13 advice that they would have had to offer, however, was

14 that in terms of her security, if they protected her in

15 and out of her house and her office, the vulnerabilities

16 will increase in terms of her daily working life. It

17 would have been improbable that a Loyalist organisation

18 would have carried out an attack upon her during her

19 legal work, quite literally because the courts at that

20 time had significant and substantial degrees of armed

21 security.

22 So the areas where she would have been vulnerable

23 would have been probably going from her office to her

24 home, or from her office to her work, and indicating to

25 her that irrespective of how inconvenient, she must vary




1 her routes. Above all, the Loyalists tend, unlike the

2 IRA, to be unpredictable. Therefore, if they decided to

3 do something at the last moment, there had to be devices

4 which were available to her to be consciously aware of

5 where she was vulnerable, and while she needn't

6 necessarily have carried a firearm, there may well have

7 been other devices that she could have carried because

8 it was a close quarters, as described by Major Robbins,

9 assassination then unless it was immediate and not

10 something to which she could prepare herself, a firearm

11 might have been of limited use. But she could have

12 carried an alarm giving off substantial and significant

13 sound.

14 There may have been other measures of which I am

15 unaware, but the advice they ought to have given her was

16 that there are certain core areas where you must accept

17 limitations upon your life and those of your family.

18 Those are in your home. And in fact --

19 THE CHAIRMAN: That would include her leisure activities.

20 MR HARVEY: Her leisure activities. And, again, that is one

21 matter which I know for a lot of individuals within the

22 KPPS in Northern Ireland, they either accept that there

23 are areas they can't go or, if they choose to go, they

24 must themselves be exceptionally circuitous and

25 exceptionally cautious. But the security forces make it




1 quite clear to them that the KPPS scheme -- there are

2 some things we will not protect you because that exposes

3 us to risk and you then have the choice.

4 So, again, I respectfully submit that there is

5 a wide range of advice and each portion of the advice

6 would, of necessity, have reinforced in Rosemary's mind

7 the risk and the threat. And those tend to be the most

8 effective measures which are adopted by individuals. It

9 is the constant awareness that there are minimum

10 requirements for me in every part of my life.

11 THE CHAIRMAN: Now, the third question is: how and by whom

12 should the advice have been given to Rosemary Nelson?

13 MR HARVEY: What I respectfully submit is that the initial

14 approach could easily have been made by an official

15 within the NIO, which does not necessarily, therefore,

16 involve the police. If the scheme -- and it did exist

17 at that time -- was the police scheme, the first thing

18 that they ought to have done was to explain to Rosemary

19 that the threat did not emanate in terms of the

20 actuality from the police. There may have been elements

21 within the police who, because of their attitudes to

22 her, had resulted in the dissemination of information

23 into the Loyalist community which would compromise her,

24 but that is not all members of the police.

25 And one of the respectful things about Rosemary and




1 about the instructions that I have from her family in

2 how to deal with these, rosemary Nelson never confused

3 every police officer with the police officers who were

4 and held attitudes to her which were detrimental. She

5 had never at any stage confused the whole organisation.

6 But what she was concerned about is when it came to

7 dealing with the threat, that the threat was being dealt

8 with as complaints and the failure of the complaints

9 system itself tended to reinforce a view that what is

10 the point of making a complaint, what is the point of

11 taking advice.

12 But I believe they should be sufficiently

13 sophisticated to understand that the KPPS are

14 a dedicated group of individuals with expertise and

15 knowledge in reducing risk, which would have preserved

16 her life and the lives of her family. And,

17 unfortunately, as was indicated, the death Mr Travers'

18 wife's daughter. Most of us in the room know Mr Travers

19 and know his daughter. He never recovered from that

20 because he was overburdened with a sense not merely of

21 personal loss but personal guilt. That is a terribly

22 important feature when it comes to persuading

23 individuals to accept security advice: that if it is

24 simply the selfish element that, well, I'll take my

25 chances, I would rather live my life in an open way and




1 hope that things do not ... But when you have got

2 a young family and you have a husband, these tend to

3 take precedence over what you would prefer to have in

4 your life.

5 So I respectfully submit and accept what John Steele

6 said, that the NIO would have found a way, even if it

7 was Mr Tony McCusker or someone of that like or ilk

8 approaching her. But I do not believe, as has been

9 suggested by the NIO, that given the level of risk that

10 she was under, she would not have been open to

11 a tailor-made package that involved protection by police

12 officers from a specialist squad, a designated squad

13 with expertise in the matter.

14 THE CHAIRMAN: Thank you. A minor matter of detail: Am

15 I right in thinking that there is no direct evidence

16 that the contents of the reply to Senator Torricelli's

17 letter were communicated to Rosemary Nelson?

18 MR HARVEY: There was not. There most certainly was not.

19 THE CHAIRMAN: So it would be only an inference we might

20 draw that it was somehow routed abroad among the various

21 NGOs and so forth, that it might have got back to her?


23 THE CHAIRMAN: Thank you.


25 DAME VALERIE STRACHAN: I have got one question, Mr Harvey.




1 I fully understood the point you were making about

2 Rosemary Nelson feeling more comfortable sharing the

3 burden with the NGOs than to engage direct with the NIO

4 or the police, but I was left with the question about

5 the threat note. And let me make it clear that in my

6 mind that threat note is very important.

7 The obvious question that occurs to the ordinary man

8 or woman in the street -- and I think that some

9 witnesses have asked -- is that why was it that she

10 showed the threat note to lots of people but it was

11 a long time before the threat note came to the attention

12 of the NIO through Paul Mageean's letter? Would it not

13 have been better had she, as it were, got that threat

14 note to somebody that she trusted?

15 MR HARVEY: I accept it would have been better had she have

16 done so. The tragedy about the matter was that once she

17 did so, unfortunately, it would have only confirmed in

18 her mind that her delay contributed nothing to the

19 process which was then put in place and would have

20 confirmed to her that really the attitude of the

21 authorities was not going to be sparked. That was

22 obviously an attitude she had before she dealt with it.

23 But would it have been better? Of course it would

24 have been better, but all that it would have meant was

25 that she was being seen to be dotting the Is and




1 crossing the Ts in that situation, but not have produced

2 a different outcome.

3 THE CHAIRMAN: I put this question both to you and

4 Mr O'Hare: have the family got any specific

5 recommendations that they would wish us to consider?

6 This is recommendations really as to the future.

7 MR HARVEY: As to the future, what I respectfully submit is,

8 of course, that so much has changed that it is difficult

9 to believe that such events could go past without

10 a proper intervention by Government bodies to ensure

11 that the process was applied in a comprehensive and

12 detailed way.

13 Regrettably, when one read the case of Smith, which

14 was set out, one sees that the problem with all of these

15 matters is that there are human failures when structures

16 are in place and procedures. But the most important

17 thing that the Smith case establishes is that the

18 procedures must be rigorously applied. There is no

19 point in having a threat/risk assessment unless it is

20 fully understood by all of those who may even

21 incidentally come in contact with situations which will

22 give rise to the threat.

23 While one has a considerable degree of personal

24 sympathy with someone like Anne Colville, who is dealing

25 with complaints at a relatively low level and she is




1 suddenly thrust into this particular situation, one has

2 no sympathy with the individuals who were responsible

3 for placing her in that position.

4 What I respectfully submit is that, in terms of

5 recommendations, the recommendations are that these

6 areas are so vital that they must be understood by

7 everyone within the organisations that it is not

8 sufficient that one department or one organisation says,

9 "Well, I am utterly dependent upon the expertise of

10 someone else, therefore all that I will do is receive

11 the product without enquiry."

12 I think there has to be an integrated approach,

13 including, as one often sees, that there ought to be,

14 between those groups who might be dealing with it,

15 important and significant interdepartmental meetings so

16 that each knows and is aware of what is going on and

17 what is available. Having these systems available is of

18 little, if any, advantage if it falls into a different

19 system where people don't know how it actually is

20 supposed to work.

21 So I think the most important thing with all of

22 these matters is accountability. There has to be

23 accountability. The one matter which one shows

24 throughout all of the threat assessments and indeed the

25 assessments of intelligence was that there was no




1 accountability, just mere acceptance of procedures of

2 self-validating themselves.

3 THE CHAIRMAN: Thank you very much. We will adjourn now

4 until Monday, 22 June.

5 (4.55 pm)

6 (The Inquiry adjourned until Monday, 22 June 2009

7 at 10.15 am)





















1 I N D E X

Closing submissions by MR O'HARE ................. 1
3 (continued)

4 Closing submissions by MR HARVEY ................. 16

5 Questions by THE CHAIRMAN ........................ 141

6 Questions by DAME VALERIE STRACHAN ............... 148