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Full Hearings

Hearing: 5th May 2009, day 125

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

on Tuesday, 5 May 2009
commencing at 1.00 pm

Day 125








1 Tuesday, 5 May 2009

2 (1.00 pm)

3 THE CHAIRMAN: Yes, Mr Donaldson?

4 Closing submissions by MR DONALDSON

5 MR DONALDSON: Sir, before I come to the specific matters

6 raised in the letter of Mr Myers, I have some general

7 matters I would like to deal with first.


9 MR DONALDSON: Now, in relation to the remit of the RNI, as

10 already indicated, their remit is very wide indeed, with

11 the result that our interests encompass the vast bulk of

12 the matters which have been covered in this Inquiry over

13 a very lengthy period of time.

14 In our written submissions we have sought to cover

15 most, if not all, of the principal issues with which we

16 are concerned, but perhaps not in the detail that we

17 would have liked because of the time available.

18 Now that we have had the opportunity to consider the

19 detailed written submissions of other Full Participants

20 and the RNI letter of 23 April 2009 highlighting certain

21 other matters of particular interest, we hope to be able

22 to focus more directly on some of the more crucial

23 issues. However, it is almost inevitable that we may

24 find it necessary to repeat some of the matters already

25 contained in our written submissions, and for that




1 I apologise but we consider that as necessary in order

2 to contextualise and make more comprehensible our

3 further submissions.

4 We don't, however, anticipate that we will find it

5 necessary to seek any extension of time unless, of

6 course, the Panel members labour me with a lot of

7 questions.

8 The submissions of the Full Participants are lengthy

9 and, in the case of the Nelson and Magee family, they

10 are especially lengthy, as you are aware of. We can't

11 deal with every matter that has been raised, and

12 accordingly we will have to be selective in relation to

13 the matters we will seek to respond to. But we would

14 ask the Tribunal to bear this in mind: that if there are

15 any matters in those submissions to which we don't make

16 specific reference or response, it doesn't mean -- and

17 it shouldn't be concluded -- that we accept any of the

18 propositions arising there.

19 Ultimately, of course, it will be a matter for the

20 Inquiry to consider whether or not any of those

21 submissions are acceptable.

22 We would also ask the Inquiry to bear in mind our

23 opening oral submissions which were relatively lengthy,

24 but we consider that they bear very particularly on

25 a lot of matters which we anticipated the Inquiry would




1 hear in evidence.

2 It is important to consider, we think, the reasons

3 for this Inquiry. One has to stand back and look at

4 what this Inquiry is about, and the Terms of Reference,

5 though, have been repeated many times and I'm not going

6 to repeat them given, but I can't avoid repeating,

7 however, the important words of Mr Phillips QC in his

8 opening when he indicated that:

9 "The very serious matter at the heart of the Inquiry

10 is the possibility that Government agencies or others

11 might have been to some extent involved with, complicit

12 in or responsible for the murder of Rosemary Nelson."

13 Now, that seemed to be a very central issue. It is

14 our fundamental submission, which we have repeated

15 already, that the RUC were not to any extent at all

16 involved with, complicit in or responsible for the

17 murder of Rosemary Nelson. There was never any reliable

18 evidence in the proper sense of that word to sustain any

19 such accusation against the police. Nonetheless, for

20 the reasons which I'm about to suggest, the Government

21 directed that there should be an inquiry into the death

22 of Rosemary Nelson.

23 Now, we can't blame the inquiry for that. It is

24 your duty as a Panel to consider what your remit is and

25 to make decisions about it and to make rulings and to




1 give, eventually, advice as to what should be done in

2 the future.

3 Mrs Nelson was a solicitor who practised at Lurgan,

4 County Armagh and she lived there with her husband and

5 children at Ashford Grange in Lurgan. And on the

6 weekend of 11 March 1999, she went with some of her

7 friends, including Dr Dara O'Hagan, a Sinn Fein

8 counsellor, to spend the weekend in Donegal. Her

9 husband did not accompany her --

10 THE CHAIRMAN: That isn't right. Mr Nelson, Mr Paul Nelson,

11 did go to Donegal.

12 MR DONALDSON: I apologise about that, sir, yes -- that's an

13 oversight on my part, sorry.

14 THE CHAIRMAN: There were two very young schoolgirls, one of

15 whom was the Nelsons' daughter.

16 MR DONALDSON: I accept that. You are quite right, sir.

17 Thank you very much for that, yes.

18 She returned on Sunday evening, 14 March, and parked

19 her car on the driveway of her home. She usually parked

20 her car there. It seems to have been her invariable

21 practice although she had a garage at her home and could

22 quite easily have put the car in the garage.

23 The next morning at around 11.30 she got into her

24 car, presumably with the intention of going to her

25 office in Lurgan, and as she was moving the car, an




1 undervehicle explosive device exploded causing her

2 severe injuries from which she died shortly afterwards.

3 Now, Lurgan at that time was a notoriously violent

4 and dangerous place; that is during the 1970s and 1980s

5 and, indeed, into the 1990s. And in June of 1997 we

6 have heard that two police officers were murdered when

7 on duty, although the peace process was underway. And

8 not many years earlier, the murders of Mr Lyness and

9 Mr Anthony had occurred, as well as the wildfowlers near

10 Loch Neagh, at Lurgan, and there was also the murder of

11 Mr Marshall.

12 The circumstances of the police murders were

13 especially brutal and causing not only great distress to

14 bereaved families and colleagues but also feelings of

15 shock and revulsion in the wider community because of

16 obvious serious harm to the peace process among other

17 things.

18 The death of Rosemary Nelson had much the same

19 effect but the shockwaves travelled much further, and

20 when fanned with the winds of prejudice and suspicion

21 were transformed into what became a hurricane of

22 protest. The calls for a public inquiry received

23 a positive response from the Government and so the

24 present inquiry was conceived.

25 I want to point out some of the reasons for the




1 Inquiry, some of the calls that were made, bearing in

2 mind that there had been thousands of killings in

3 Northern Ireland since 1970 associated with terrorist

4 activity, yet extremely few have been dignified, if that

5 is the right word, with a public inquiry. Apart from

6 the Saville Inquiry, there have been only two other

7 similar inquiries in Northern Ireland, namely the

8 Billy Wright and the Hamill inquiries, which are still

9 ongoing.

10 For several years prior to her death,

11 Rosemary Nelson had achieved a high profile because of

12 her representation of the Garvaghy Road Residents

13 Coalition and suspected Republican terrorists. She was

14 sometimes in conflict with the police. Many of her

15 clients through her had made serious allegations against

16 police officers, mainly from Lurgan. The Inquiry has

17 heard and read a great deal of evidence concerning the

18 threats and allegations of threats against

19 Rosemary Nelson from representatives of NGOs, including

20 LAJI, BIRW, Mr Cumaraswamy, the United Nations Special

21 Rapporteur and others. The evidence concerning these

22 matters has been reviewed in detail and no doubt they

23 form part of the context which led to the institution of

24 this Inquiry.

25 Rosemary Nelson's relations with the police were




1 further complicated and strained because of her

2 representation of Colin Duffy and her unusual

3 relationship with him. Again, these are matters which

4 have already been the subject of close scrutiny, and for

5 a variety of reasons, not always clear, I must say,

6 Rosemary Nelson seems to have developed quite a hostile

7 attitude to the police, and in the words of one witness,

8 Alan Parra, he said:

9 "Rosemary Nelson had absolute disdain and hatred for

10 the RUC."

11 Now, I suppose one will have to consider which came

12 first. It is a kind of a chicken and egg situation

13 because this deteriorating relationship, was it brought

14 about as a result of something the police had perhaps

15 done wrong or was it because of Rosemary Nelson's own

16 attitude or her own perception. I think it is really

17 quite difficult to say, although I'll venture some

18 suggestions about that later on.

19 In this part of our submissions we deal with the

20 more immediate and some subsequent reactions to the

21 murder which we believe were significant participants to

22 the institution of the Inquiry. In the highly charged

23 atmosphere immediately after the murder, it was

24 instantly assumed that the atrocity had been perpetrated

25 by Loyalist paramilitaries and, of course, in that they




1 may well have been right. Furthermore, and with deep

2 conviction bordering on absolute certainty, it was

3 assumed and alleged by many that the police, the Army

4 and perhaps other Government institutions were complicit

5 in the murder.

6 Now, there was no factual, rational or other sound

7 basis in support of such views and assumptions and they

8 appear really to have been in effect the gut reactions

9 of people in the community, and indeed that was taken up

10 later by others.

11 We have drawn already and will draw attention to

12 some of the evidence from which the Inquiry, we trust,

13 will readily conclude that the views expressed about

14 official collusion and complicity were entirely without

15 substance, especially where such views concerned the

16 RUC, whom we represent.

17 One senior police officer, when he heard of the

18 murder, immediately expressed the view that the blame

19 would inevitably fall on the police, and how right he

20 was. I want to mention just a few examples of some of

21 the people who made statements about it, some of them

22 inflammatory statements. The first was John Fahy,

23 solicitor, and in his statement he said:

24 "There was always going to be the theory of

25 collusion surrounding Rosemary Nelson's death. Always




1 there are a number of conspiracy theories devised to

2 explain things. Some of wrong, some are right. It was

3 not long before one came out for this. I just heard

4 generally, nothing specific -- this was via the media.

5 I undoubtedly think there is a connection between the

6 security forces and paramilitary activities. I have no

7 hard evidence of this nor any particular examples."

8 But yet as a lawyer he is prepared to say that.

9 Patrick Joseph Fahy, a relative, I believe, and also

10 a solicitor, said in his statement:

11 "I was clearly shocked and surprised when I heard

12 about Rosemary Nelson's death on the radio. I had no

13 doubt that the police were involved in Rosemary Nelson's

14 killing. It was common knowledge that the police

15 opposed what she was doing."

16 Jean Forest in her statement, or in a statement,

17 said:

18 "I think that they ..."

19 That is the RUC:

20 "... may well have been involved in having her

21 assassinated."

22 Eunan Magee, Rosemary Nelson's young brother, said

23 in his statement as follows:

24 "We all knew that the bomb had come from the

25 Loyalist community. I think that we all feel that there




1 was collusion at certain levels and that the police

2 force was biased from the top down with Ronnie Flanagan

3 as the leader."

4 And about Colin Port he said this:

5 "He gave us lots of information. He said that he

6 would not call for a public inquiry himself, but in the

7 course of our meetings with him he gave us enough

8 information knowingly so that we could push for one.

9 I don't doubt there was a bigger picture, that there was

10 information that he didn't give us."

11 Padraig McDermott, solicitor, said that he felt that

12 somebody people had put the idea of killing

13 Rosemary Nelson into the hands of terrorists at the very

14 least, and he said:

15 "I do not know whether the police have directly

16 ordered her killing, but I think at the very least they

17 put the idea into the LVF's head. I believe it is

18 mostly to do with Colin Duffy. I felt that it was

19 exactly the same as what happened to Patrick Finucane,

20 where the idea of killing him had formed within the

21 police and then been transferred to the terrorist. Of

22 course there was no direct evidence but I am certain

23 that this is what happened."

24 Dennis Mullan, solicitor, was of the view that the

25 perpetrators:




1 "... came from a Loyalist source."

2 I have to say about Dennis Mullan that his statement

3 and comments were generally much more balanced than some

4 of the others.

5 Mary Nellis, Sinn Fein member, at paragraph 6 of her

6 Eversheds statement, said:

7 "There was a lot of reaction to Rosemary Nelson's

8 death. The immediate reaction amongst the public was

9 that the RUC had colluded in, but that they may not have

10 carried it out. I believe that the RUC was involved.

11 Unfortunately, I have no evidence to back up my belief

12 that there was RUC collusion. I wish I did."

13 Those are very telling remarks and they run through

14 the comments which I have already drawn attention to,

15 and she continues:

16 "All I have is 30 years of history of dealing with

17 the police and being on the receiving end of police

18 brutality. My belief is based upon what people and what

19 human rights groups have been investigating and my own

20 personal feelings. I hope that inquiry finds some

21 evidence of collusion. As for the actual planting of

22 the bomb, I remember that the finger was pointed to

23 Unionist paramilitaries. If you ask the community,

24 I think that they would say the police or the

25 Special Branch were just as much to blame."




1 Now, this witness was not called to give evidence.

2 John Philip Foley, American lawyer, at

3 paragraphs 121 and 122 of his Eversheds statement said:

4 "I believe we should call her murder what it was:

5 murder with the tacit approval of the police, the

6 military and possibly even the Government in

7 Northern Ireland. Fortunately, good seems to eventually

8 win over evil. Good Government has replaced an evil

9 Government in the north of Ireland and there is evidence

10 of improvements in the judicial system as well."

11 Now, the quality and value of these opinions -- and

12 this one in particular -- has to be viewed in the light

13 of what he said in paragraph 4 of his statement where he

14 comments upon the Diplock trial and procedure, and he

15 said:

16 "I was appalled by what I saw. It seems convictions

17 could be obtained in hours and there seemed to be no

18 consideration for the mounting of a proper defence or

19 a fair trial. The judicial system seems to be one-sided

20 and broken."

21 I must say, as one who has practised here for

22 40 years, I find that just an utterly appalling

23 statement, totally baseless, totally biased, irrational,

24 not based on anything that anyone who has any knowledge

25 of the legal system here knows about, and that is the




1 kind of statement coming from a lawyer that is just

2 incomprehensible.

3 Jeremy Hardy was another one. He describes himself

4 as an entertainer and comedian. Now, elements of these

5 skills appear in his lengthy Eversheds statement. He

6 did not think that [name redacted] was a huge figure in the

7 IRA and he commented on the alleged Nelson/Duffy affair

8 saying:

9 "I couldn't see her getting entangled with an IRA

10 man."

11 And at paragraph 4 of his Eversheds's statement he

12 said:

13 "We know that the RUC in Portadown was deeply

14 sectarian."

15 I quote again:

16 "I'm someone who instinctively doesn't go down the

17 road of conspiracy theories, but we know there is some

18 collusion as a fact. It could be just at the level of

19 permission. The whole collusion thing is a feeling."

20 We say that in evaluating the evidence of witnesses

21 such as Mr Hardy and others, the Inquiry will bear in

22 mind that many of the opinions expressed are pure

23 speculation based on hearsay. Such evidence, we say, is

24 worthless and unhelpful to this Inquiry.

25 Unsurprisingly, he was not called as a witness either.




1 Referring briefly to the Cumaraswamy Report and his

2 statement and evidence, they have already been the

3 subject of considerable comment and I will comment again

4 later about it. It should be noted that he made

5 a remarkable comment at paragraph 68 of his Eversheds

6 statement as follows:

7 "It seems to me that the RUC just wanted to get rid

8 of her as they did the case of Finucane."

9 Why does a man like Mr Cumaraswamy make such

10 a ridiculous statement as that? There is not a shred of

11 evidence to support that comment and the fact that he

12 made it raises questions against the credibility of

13 anything he says and his evidence. I know he is a very

14 important man, but we have got to be realistic and we

15 have got to look critically at what he said and the

16 reasons he said it.

17 Oliver Kelly was another solicitor who was not

18 called as a witness and he said it was:

19 "... a crying injustice that nobody in the security

20 forces has been brought to justice over Rosemary

21 Nelson's death."

22 Now, it will be noted that Mr Kelly himself had been

23 interned for a considerable period of time.

24 Mr Ed Lynch has been a very prominent figure in

25 relation to the activity of the NGOs, and I want to




1 comment on him later in some more detail but he presents

2 as a lawyer from the United States of America and an

3 organiser of LAJI. He made a very lengthy Eversheds

4 statement and he also gave evidence at considerable

5 length to this Inquiry.

6 Now, as I have indicated, his evidence will be the

7 subject of more analysis later, but I just merely want

8 to point out that he was also a strong proponent of this

9 collusion theory although there was no evidence really

10 to support that.

11 Dara O'Hagan, a Sinn Fein MLA and friend of

12 Rosemary Nelson, made it clear that she was strongly of

13 the view that there had been collusion between

14 Loyalists, the police, military and security forces in

15 her death. And at paragraph 72 of her statement she

16 said:

17 "From any of us there was no question in our minds

18 that the police had had some involvement in her murder."

19 Now, these are some of the examples of the views and

20 opinions expressed which gave rise to this Inquiry and

21 eventually the Inquiry will have to consider the

22 credibility of these allegations, although I have to say

23 I would submit strongly that very little weight -- in

24 fact, I say no weight at all -- should be attached to

25 any of these propositions.




1 It, we say, should be accepted that the opinions,

2 how tendentious or ill founded, they did gain

3 considerable support in certain sections of the

4 community which, with the encouragement of others, led

5 to a loud clamouring for a public enquiry.

6 We submit that most, if not all, of these views;

7 expressed are ill founded and some are the subject of

8 pure prejudice.

9 Now, after this, there was a United Nations press

10 release indicating support for an inquiry and then we

11 know that the immediate precipitant really was the Cory

12 investigation, carried out by Judge Cory. I don't

13 intend to go into that at all in any detail. It is

14 a bit like the curate's egg: it is good in parts and bad

15 in parts.

16 In relation to the direction given by this Inquiry

17 and in order to explain their work and to give focus to

18 it, a list of 29 issues was generated and these have

19 been gone over already in some detail. We will indicate

20 some vital issues which have emerged as the evidence has

21 developed and we will deal with these further issues as

22 and when they arise.

23 The Inquiry did state that its declared task:

24 "... is to seek out the truth and to carry out this

25 task with rigorous thoroughness and fairness."




1 We would certainly agree that this Inquiry has been

2 rigorous and thorough, but I doubt very much if the

3 truth will ever really be found.

4 It now seems highly unlikely that the murderers of

5 Rosemary Nelson will ever be brought to justice.

6 A specialist Murder Investigation Team, MIT, has now

7 been working on the case for 10 years or more, but

8 no one has been made amenable in spite of the large

9 number of personnel involved and the huge expense of

10 a murder enquiry which has surpassed anything seen in

11 Northern Ireland.

12 At this stage I think it is only fair that we should

13 acknowledge the value of the work done by MIT. Now, MIT

14 was made up of a large team of very dedicated

15 professionals, and at times it has to be said that they

16 carried out their work with ruthless efficiency. And it

17 is in relation to Sam Kinkaid, who was the SIO, that it

18 would be right to say that what he lacked in diplomatic

19 skills, he more than compensated for in his bulldog

20 determination to get to the truth.

21 At times this was done, indeed, in almost a ruthless

22 way and I think that neither Mr Kinkaid nor any of those

23 with him could be accused of in any way trying to hide

24 anything or to operate the old boy network. There was

25 no stopping of the MIT in relation to the enquiries they




1 carried out, even to the extent of at times antagonising

2 members of the RUC, I think, and especially

3 Special Branch. That was especially so in relation to

4 the Fagotto operation, where they very single mindedly

5 pursued every member of the team who'd gone out. They

6 checked their cars, they did everything possible and

7 they left no stone unturned. And I think it would be

8 unfair to say that the team was not dedicated, fully,

9 100 per cent, to seek out the truth.

10 Another significant point about the MIT

11 investigation is this, of course: that they had been

12 doing this work now for 10 years. There is virtually

13 nothing that they haven't looked at with great care and

14 I think they came to the conclusion early on that there

15 was no collusion here. There was a special collusion

16 team appointed and organised who carried out this work.

17 The same applies in relation to quite a lot of other

18 areas of activity that they looked at, things concerning

19 the work of Special Branch. I don't think there was

20 ever any criticism of Special Branch by MIT in relation

21 to any sinister motives, for example -- although it was

22 an issue and I'll deal with it later -- about the

23 allegation that MIT had not received all intelligence

24 material. It is significant that, of course, even if

25 they didn't receive it -- and that isn't accepted --




1 even if they didn't receive it, there is no sinister

2 imputation arising from that, nor is there any serious

3 suggestion, I think, that in some way or another it

4 impeded the investigation or prevented the apprehension

5 and bringing to justice of those responsible.

6 Now, that doesn't mean to say that work was done by

7 the MIT of which we necessarily fully approve. I think

8 in relation, for example, to the criticism made by

9 Mr Ayling on the victimology issue. I think there are

10 some matters there which we wouldn't necessarily

11 disagree with, but in effect it is not really our

12 concern and we are not inviting the Inquiry to take any

13 adverse view of MIT on that basis. But I just want it

14 to be understood that we don't necessarily consider that

15 MIT were just perfect and that everything was done

16 perfectly. Of course they didn't and I'm sure they

17 would be the first to admit that.

18 Now, it is not the remit of this Inquiry to identify

19 those who were directly involved in the killing of

20 Rosemary Nelson, although of course it would be a very

21 useful if that could be done. Certainly, MIT, they

22 believed that they could identify those directly

23 involved, but unfortunately they have not been able to

24 obtain sufficient evidence even to put on trial or to

25 charge those who may have been responsible.




1 Now, that, again, is not a criticism of MIT. Not

2 every murder investigation is successful, as every

3 police officer knows. Sometimes -- well -- I assume

4 that they will always do their best, but sometimes that

5 doesn't achieve the result. This was always going to be

6 a difficult case.

7 At the inquiry hearing on 16 October 2007,

8 Mr Phillips made that statement -- I'll not repeat it

9 again -- about the serious matters at the heart of the

10 Inquiry, and we in our opening statement said as

11 follows:

12 "We apprehend that the RNI will initially

13 concentrate on facts bearing on the 29 issues. In

14 common with any judicial function, the finding of facts

15 will be established only from credible evidence and

16 documents of a worthy and reliable provenance."

17 The work of this Inquiry has been very extensive,

18 covering a period or four or five years, and the PSNI at

19 the direction of the Chief Constable has given full

20 cooperation and help to the Inquiry and a heavy burden

21 has fallen on PSNI in carrying out this work. At the

22 same time, the PSNI has been assisting the Billy Wright

23 and Robert Hamill inquiries, which are also ongoing, and

24 the workload and commitment of police and civilian

25 personnel has been enormous and the expense has been




1 considerable. The RNI has been given, and appropriately

2 so, unfettered access to all PSNI material and

3 documents. Approximately 20,000 man hours have been

4 expended by the PSNI in this work and in conducting

5 exhaustive searches.

6 In his letter of 24 March 2008 to the Inquiry,

7 Mr Finlay, the Assistant Chief Constable stated:

8 "Considerable efforts have been expended by PSNI and

9 time, energy, finance, human and technical resource, as

10 well as initiative, in complying with the requests and

11 demands of the Rosemary Nelson Inquiry. All material

12 that was required has been provided to the Inquiry. If,

13 however, further material is identified that is or may

14 be relevant to the RNI, the PSNI undertake to provide

15 the material as soon as it is identified and can be

16 delivered to the Inquiry."

17 On foot of this undertaking, the PSNI has continued

18 throughout the tenure of the Inquiry and the hearings to

19 provide all such further help and information on an

20 ongoing basis as was requested. And this help has been

21 given unstintingly in order to enable the Inquiry to

22 achieve its declared objectives. And I may say, sir,

23 that the instructions we have received from the

24 Chief Constable were to do just that, to give this

25 Inquiry all possible help.




1 The 29 issues as prepared by RNI have clearly

2 defined some of the objectives which the Inquiry hopes

3 to achieve. The list, however, did not purport to be

4 exhaustive. Issue 1 states:

5 "Did Rosemary Nelson's work for her clients create

6 conflicts with the RUC, the NIO, the Army or other state

7 agency and, if so, why and to what extent."

8 Significantly, this is the first issue and it has

9 within its ambit a plethora of sub-issues. One of

10 these, which we would deal with in a little detail

11 later, concerns the relationship between Rosemary Nelson

12 and Colin Duffy. The significance of this was

13 recognised by Mr Phillips in his opening, where he

14 said -- and this is why it is relatively lengthy -- it

15 is still very important.

16 .But before I show that you material, there is

17 another matter which I have to mention at this stage,

18 which has arisen in the course of our investigations and

19 this is that rumours circulating that the relationship

20 between Rosemary Nelson and one of her clients,

21 Colin Duffy, was not simply a professional relationship

22 between solicitor and client.

23 Now, as you will hear in due course, the theme of

24 some at least of the complaints made by her clients over

25 the years was that officers had made comments to them in




1 interview of behaviour on her part -- that is on

2 Rosemary Nelson's part -- which was improper, and some

3 of those complaints raise matters of a sexual nature.

4 However, it seems that the talk about this client was

5 more widespread than it. However, it is, you may think,

6 interesting that in some of the complaints made by

7 Mr Duffy himself, did he suggest that officers had made

8 suggestions about an improper relationship between him

9 and his solicitor in the course of interview. This

10 question of the alleged relationship between

11 Rosemary Nelson and this particular client is an issue

12 which the Inquiry has had to address.

13 At this stage and on the basis of the material which

14 I am presently able to open to you, I would like to

15 explain briefly why that is and what is the relevance,

16 what its relevance might be to the issues you have to

17 determine. That was stated Day 2, page 73.

18 Now, I think I should just make this comment at this

19 stage, that no doubt it may be suggested that the PSNI

20 are seeking to do some harm or overstate the evidence

21 concerning Rosemary Nelson and her alleged relationship

22 with Colin Duffy, and also other conduct of

23 a questionable nature. I want to emphasise this that

24 for the record: that the PSNI did not introduce this

25 evidence, the Inquiry has decided to call this evidence.




1 These issues were raised by Inquiry Counsel and we are

2 responding to them. It is not our place to make a case

3 as such and to say, "Look, you must find that

4 Rosemary Nelson had an affair" or "You must find that

5 Rosemary Nelson acted unprofessionally". It is our

6 function to point out, to remind you, if that is

7 necessary, what the evidence is and what conclusions

8 might be drawn from it because, as you are aware, an

9 issue arises later, which I will return to, and that

10 concerns the views expressed by certain senior

11 Special Branch officers about Rosemary Nelson and her

12 relationship and about her conduct. And the point,

13 I think, that we will make -- and we will come to this

14 in a little more detail -- is that those views expressed

15 by those men were justified on the evidence; they were

16 not something they were plucking out of the air. And

17 that is the point we will make. But I want to make

18 quite clear in case anyone should say anything about it

19 later, that we are ourselves making a case against

20 Rosemary Nelson. We had no say in the witnesses who

21 were to be called to this Inquiry and, indeed, we did

22 ask on many occasions that certain witnesses should be

23 called and they were not called. But I'm not making any

24 particular complaint about that. That's the way the

25 Inquiry has chosen to do its business.




1 We anticipated this situation at the beginning and

2 in our opening on behalf of the PSNI, we said as

3 follows:

4 "We also consider that RNI may wish to closely

5 consider the nature of the professional and social

6 relationships between Mrs Nelson and her client,

7 Colin Duffy, and the effect which it had on her life,

8 work and practice. It is respectfully suggested that

9 the findings may bear not only on issue 1, but on other

10 issues such as 2, 4 and 12."

11 During the course of the hearings, the matter of the

12 nature and extent of the relationship between

13 Rosemary Nelson and Colin Duffy became a frequently

14 recurring issue and a great deal of evidence was

15 examined in connection with the issue and Counsel to the

16 Inquiry concentrated on it frequently. And one often

17 had the sense that there was a desire to diminish and

18 even to discourage any evidence of intelligence which

19 suggested an unprofessional or sexual relationship.

20 It is now our view that even within the ambit of

21 issue 1, the Inquiry should make findings on the issue

22 if at all possible. Obviously, if Rosemary Nelson was

23 having an unprofessional relationship with Colin Duffy,

24 even falling short of a sexual relationship, it would

25 bear heavily on issue 1 and we only cite this as




1 a particular example at this stage.

2 A further particular although different concern

3 arising in connection with issues 2 and 4. Now,

4 issues 2 and 4 are extremely important and it is

5 significant that they come at the top of the list, so to

6 speak, of the 29 issues and we can well understand why.

7 Issue 2 states:

8 "What threats were made to Rosemary Nelson's

9 personal safety by any persons or organisations and the

10 nature and extent of and the reasons for such threats."

11 And issue 4 is much in the same vein:

12 "Whether Rosemary Nelson was subject to any adverse

13 behaviour or comments by any persons or organisations,

14 including the RUC, NIO, Army or other state agency, and

15 the nature and extent of and the reasons for such

16 behaviour or comments."

17 Now, although we deal with these matters later,

18 particularly in the context of the Lurgan Nine

19 complaints, it is important that the objectives of the

20 Inquiry should be identified and dealt with. With these

21 matters in mind and for the purposes of clarification,

22 we wrote -- that is the PSNI -- a letter to the Inquiry

23 solicitors enquiring as to the issuing of salmon

24 letters. I'm not going to recite the details of the

25 letter. A response was received -- and I'm not going to




1 read the full response apart from one part of it:

2 "The Panel does not intend to make individual

3 findings about those police officers in relation to whom

4 complaints were made by clients of Rosemary Nelson.

5 There is, therefore, no possibility of criticism of

6 these individual officers being made by the Inquiry in

7 relation to those matters. For that reason alone, no

8 question of a salmon letter arises in relation to any

9 such officers, in relation to those matters under the

10 Inquiry's own procedures."

11 We consider that issues 2 and 4 were carefully and

12 properly formulated and go right to the heart of matters

13 with which the Inquiry would be concerned. And it is,

14 therefore, our view that the issues having been raised,

15 the facts relating to them should be established one way

16 or the other if possible. If one, therefore, takes the

17 allegations made by -- there was a group -- I'll call

18 them the Lurgan Nine because I think when Mr Phillips

19 was opening the case he dealt with them in particular as

20 a group of nine. It would seem appropriate that the

21 Inquiry should consider in respect of each complainant

22 the credibility of their allegations.

23 For example, one would have expected such questions

24 were any threats made. If threats were made, who made

25 them? What were the nature and extent of the threats?




1 What were the reasons for the making of such threats?

2 Now, I will return to this issue later because the

3 point has been raised more directly in one of the

4 questions in the letter we received, Mr Myers' letter.

5 We say that these are factual issues of considerable

6 importance and we believe that these are objectives

7 which the Inquiry initially, and quite rightly, set

8 themselves. We don't at this stage intend to identify

9 each and every objective which might readily arise in

10 respect of each of the 29 issues.

11 Mr Phillips has mentioned the identification of

12 Rosemary Nelson by some people with the clients she

13 represented and he then made what we consider to be

14 quite a remarkable proposition:

15 "I have also stressed to you that what is important

16 in this area, what is in truth more important than fact,

17 is perception."

18 There has been a lot of talk about perception in

19 this Inquiry. We would say that perception is a vague

20 and subjective concept. It is like an unruly horse

21 which is likely to unseat its rider. We don't think

22 that the Inquiry should accede to Mr Phillips'

23 invitation and go down the perceptive road. It will be

24 much better to find such facts as the evidence justifies

25 and to draw such inferences from those facts as are




1 permissible. The proceedings may be inquisitorial, but

2 this does not import a licence to depart from normal

3 standards of fairness and proof. Thus, for example,

4 when an allegation is made against a police officer, for

5 example, that he issued a death threat against

6 Rosemary Nelson, the Inquiry, we feel, should consider

7 whether or not it is satisfied in accordance with the

8 evidence before it that such a threat has been made.

9 And it should not conjure up a perception based on an

10 unproven allegation or even on a multiplicity of

11 unproven allegations.

12 Take, for example, the Lurgan Nine allegations. The

13 Inquiry, I think, now does not intend to make findings

14 of fact and does not intend to make any finding upon on

15 a basis on which one of those interviewing officers

16 could be criticised. How then can you form a perception

17 from any of that material? They say you can't.

18 Mr Phillips also seeks to draw the Inquiry into

19 perception mode in another area which is fraught with

20 difficulty, and this concerns [name redacted] and his

21 various criminal exploits, including his possible

22 involvement in the murder of Mr Lyness and the two

23 Lurgan police officers, and the fact that

24 Rosemary Nelson represented him in these and other

25 cases, because Mr Phillips stated as follows:




1 "However, the Inquiry does have a legitimate

2 interest in the feelings engendered as a result of these

3 cases, cases in which he was an accused and in

4 particular the extent to which the disposal of both of

5 the murder cases by his acquittal on appeal in the first

6 case and by the dropping of the charges in the second,

7 it affected or created or directed strong feelings of

8 bitterness in his direction precisely because of the

9 rumours to which I have referred. For the closer the

10 perceived relationship with her client, the more likely,

11 you may think, that her own safety might have been

12 affected by the way in which she was viewed and

13 perceived."

14 Now, looking at the first part of that proposition,

15 the Inquiry does have a legitimate interest in the

16 feelings engendered as a result of these cases. What

17 feelings? Whose feelings? How do you consider those

18 feelings? What evidence is there about such feelings?

19 This is where we are in an area of vague perceptions

20 about people's feelings. In other words, for example,

21 it might well have been people in Lurgan might have

22 known about Mr [name redacted] and the things he did. How do we

23 know what perceptions they had about Mr [name redacted]? He may

24 have done nothing wrong. Take the allegation of the

25 affair between Rosemary Nelson and Colin Duffy. How do




1 you judge the feelings engendered in the community about

2 that? There has been precious little evidence to show

3 that anybody gave one rap about whether or not

4 Rosemary Nelson was having an affair with Colin Duffy.

5 If one imagines a situation of three or four

6 Loyalists drinking in a pub in Lurgan or Portadown and

7 they hear that she is having an affair with Colin Duffy,

8 I would think it would be an occasion for some ribald

9 humour rather than any idea that this was something

10 which merited the death penalty.

11 Yet Mr Phillips does not want the Inquiry to look

12 too closely at Mr Duffy's activities, nor indeed the

13 relationship between him and Rosemary Nelson. If [name redacted]

14 was a terrorist, then he was much more likely to be

15 perceived by people for what he was. In other words, if

16 the people in Lurgan, the Loyalist people, perceived him

17 to be an active member of PIRA, no doubt that would

18 perhaps have put him at some risk. But would that have

19 put Rosemary Nelson at any risk? The evidence indicates

20 that there had been one attack on Duffy and if he was

21 having an affair with Rosemary Nelson, this would not,

22 in our submission, necessarily have made his position

23 any better or any worse, although it may well have

24 affected the view of people within the Republican

25 community in an adverse way. If there had been such an




1 affair, it is unlikely to have remained a secret for

2 very long especially in the Kilwilke Estate, which was

3 a small -- it is a large estate, but it is very

4 confined. It was mostly, I suppose, Republican and

5 Nationalist who heard, and there wasn't, again, as the

6 Inquiry might well be aware, much fraternisation between

7 one community and other. The communities were very

8 polarised. People didn't socialise together, they

9 didn't drink together, they didn't play together and

10 there was very little social intercourse between them.

11 If the Tribunal were to find as a fact that there

12 had been an affair -- and we are not inviting the

13 Inquiry to necessarily do that -- then the Tribunal

14 could move to consider whether or not this was likely to

15 create in the minds of anyone feeling so strong that

16 they would want to murder her. Why would anyone want to

17 kill her just because she was having an affair? There

18 would be a lot of people in the community at risk if

19 that were so.

20 We will return, however, to some more specific

21 matters concerning Rosemary Nelson and Colin Duffy

22 later, as we inevitably have to do.

23 In his opening, Mr Phillips stated:

24 "So far as your team are concerned, our position in

25 this Inquiry has been and will continue to be neutral.




1 We are independent. We do not take one side or another

2 and I know neither do you."

3 Now, this is a very laudable objective and we would

4 expect no less, but I have to say, I have to confess

5 that at times my faith faltered.

6 Just one further matter to deal with briefly before

7 I come to some of the specific questions, Mr Chairman.

8 These are a few historical points.

9 Now, on Day 1 of the hearing, Mr Phillips gave

10 a very detailed and in a helpful way painted a detailed

11 historical picture of events in Northern Ireland

12 covering the period from the late 1980s until 2000. And

13 he quite rightly prefaced this historical review with an

14 acknowledgment that neither the Panel nor the Inquiry

15 counsel team were people who had lived and worked in

16 Northern Ireland but whose lives and careers had taken

17 place elsewhere. He recognised the need for care on the

18 part of those who had not lived through the last two

19 decades of the 20th century in Northern Ireland and

20 expressed the determination that they did not come with

21 fixed views or preconceptions.

22 Now, I think there are some of us here who have

23 lived through all of this and worked through all of this

24 over the past 30 or 40 years and it does colour our view

25 of things to an extent, and you will have to forgive me




1 if sometimes I express matters a little more strongly

2 than I intend to but it is rather difficult when one

3 hears American lawyers, or people who drift in and out

4 of this country for a day or two at a time, expressing

5 opinions about what goes on in this community. And

6 there is a local saying: it does stick in the craw to

7 hear this and to have to listen to it.

8 I don't intend, as it were -- I had intended

9 initially to do a slightly more detailed historical

10 survey of events in Northern Ireland, but there is one

11 book I want to refer to very briefly and that was

12 Hugh Orde's well researched book called "Milestones and

13 Murder" first published in Great Britain in 2002. And

14 at page 153, the following statement appears:

15 "By the end of its brief foray on to the stage of

16 paramilitary murder, the official IRA had claimed the

17 lives of 54 people --

18 And you will recollect, sir, that prior to -- the

19 official IRA probably came to an end some time around

20 the very early 1970s to be replaced by the Provisional

21 IRA, and he said the official IRA had claimed the lives

22 of 54 people:

23 "It's Republican rival, however, the Provisional IRA

24 was responsible for the deaths of 1,788 or 48.7 per cent

25 of the total deaths. The terrible year of 1972 was




1 without a doubt the worst in three decades of

2 unremitting slaughter. Nearly 500 people lost their

3 lives, the vast majority unarmed civilians. In July of

4 that year, the Provos gave an indication of what was to

5 come when, on 21 July, on what became known Bloody

6 Friday, the IRA detonated 22 bombs in Belfast in the

7 space of one hour. Nine people were killed and 130 were

8 injured. Police believe [blank], a former bookmaker's

9 clerk, who was the Officer Commanding the IRA in Lurgan

10 at that time gave the go ahead for the attack.

11 [Blank's] second-in-command was [blank] -- I'm not going

12 to mention his name. Thirty years after this dreadful

13 event, the IRA issued a statement of apology for killing

14 what it called non-combatants and days after the apology

15 was issued, [Mr Blank] denied any involvement in the

16 Bloody Friday attack. He also denied ever being a member

17 of the IRA, a statement which both shocked and amused

18 some of his Republican comrades."

19 In a helpful footnote I noticed in the NIO's

20 submissions, they draw attention to the fact that quite

21 a number of lawyers had been killed. One would think at

22 first sight that the only lawyers who were killed in

23 Northern Ireland at this time were Rosemary Nelson and

24 Pat Finucane. In fact, it is a footnote which can

25 easily escape attention and I will mention them very




1 quickly. On 25 January 1973, William Staunton, resident

2 magistrate, was executed by the IRA. On

3 16 September 1974, on the same morning -- something we

4 will never forget here -- the IRA shot dead resident

5 magistrate Martin McBurney and Judge Rory Conraghan.

6 And the IRA later said, "We did this because they were

7 collaborating with the British war machine".

8 On 4 March 1977, another solicitor, Rory O'Kelly was

9 murdered in Coalisland. He was a member of the

10 prosecution branch. On 12 October 1979, a young

11 solicitor, John Donaldson, was murdered. On

12 18 January 1983, Judge Doyle was murdered as he left

13 mass at St Bridget's church in Derryvolgie Avenue. On

14 7 December 1983, Edgar Graham, a barrister at law and

15 lecturer at Queen's was shot dead by the IRA outside the

16 law faculty building. On 8 April 1984, Mary Travers,

17 who was with her father Tom Travers, a magistrate, was

18 shot dead and her father injured in an attack as they

19 were leaving midday mass from the same church, where

20 Judge Doyle had been, on Derryvolgie Avenue.

21 On 25 April 1987, Lord Justice and Lady Gibson were

22 killed by a 500-pound IRA landmine close to the border

23 as they drove home to Belfast from the Republic of

24 Ireland. Then, of course, we are all aware of the

25 horrendous bomb at Omagh on 15 August 1988, which killed




1 29 people and injured 360 others.

2 So that was really -- that was part of the

3 background against which this Inquiry is carrying out

4 its work.

5 I refer in that context to something

6 Sir Ronnie Flanagan said in his evidence on Day 100:

7 "I have often said to some of my colleagues in the

8 policing elsewhere in the UK that in a place with

9 a population of not much more than 1.5 million people,

10 we had 302 people murdered for no other reason other

11 than that they were police officers. Down through the

12 Troubles we had some 7,000 police officers seriously

13 maimed or injured, and if you were to extrapolate that

14 to the population of England and Wales, for example,

15 maybe 60 million people, you would be talking about

16 10,000 police officers murdered. You would be talking

17 about a quarter of a million police officers seriously

18 maimed or injured."

19 In spite of all the terrible events which have

20 occurred if Northern Ireland throughout the last three

21 decades of the 20th century, it must not be assumed that

22 those who have lived -- sorry, by those who have not

23 lived in Northern Ireland, that the people here

24 supported or sympathised with one side or the other.

25 Such was not the case. The vast majority of people




1 abhorred violence and abjured bigotry. The conflict was

2 initiated and nurtured by relatively small groups of

3 extremists on both sides for political and other

4 reasons. Indeed, later in the conflict, the

5 paramilitary groups became more and more involved in

6 racketeering and profiteering for personal gain.

7 Religion was never really the issue and probably much

8 that happened was probably more to do with the lack of

9 religion.

10 It is against this background, madam and gentlemen,

11 that the murder of Rosemary Nelson has to be viewed and,

12 if possible, understood. More particularly it will be

13 necessary for the Inquiry to consider events in or

14 around Lurgan in the three- or four-year period prior to

15 her death and the atmosphere which prevailed in the town

16 at that time. The PSNI statistics for

17 Northern Ireland -- and I hesitate to quote

18 statistics -- for the period from 1 April 1998 to

19 31 March 1999 -- that's exactly the one-year period

20 prior to the death of Rosemary Nelson -- there were

21 44 deaths as a result of the security situation,

22 187 shooting incidents, 123 bombing incidents,

23 20 incendiary incidents and 172 casualties as a result

24 of paramilitary-style assaults, and 441 people were

25 charged with terrorist and serious public order




1 offences.

2 In the family's submissions, we are grateful for

3 their acknowledgment that:

4 "During the Troubles there were a total of

5 500 RUC/UDR fatalities, 114 from Armagh, and 99 from

6 Tyrone, representing 41 per cent of the Northern Ireland

7 total."

8 Now, I would like to move to a specific matter

9 raised by the Inquiry and that concerns

10 Rosemary Nelson's relationships with the RUC. The

11 Inquiry has asked for comments on this topic which has

12 already been addressed in the PSNI's submissions, and we

13 dealt with these in paragraphs 3.1 to 3.6.

14 It is clear that in the early 1990s Rosemary Nelson

15 had a good relationship with the police. P149, for

16 example, at page 149, paragraph 2, describes her buying

17 her and her husband a drink, a bottle of wine, while

18 socialising in a restaurant. But later he did notice

19 a change in Rosemary Nelson's attitude to the police.

20 Another police officer, Cyril Donnan, in 1990, 1991

21 said he was involved with Rosemary Nelson's office in

22 a pilot study regarding domestic violence and

23 relationships were obviously amicable. Can one imagine

24 that sort of thing happening with Rosemary Nelson and

25 the police in 1998? I would say not.




1 Mary Loughran, a secretary in Rosemary Nelson's

2 office, at paragraph 18 describes the practice of

3 Colin Duffy calling to the office two or three times per

4 week even when not charged with any offence, and

5 apparently for no ostensible reason other than popping

6 in for a chat. At paragraph 24, she describes

7 Rosemary Nelson as being seen as a Republican solicitor.

8 Annette Sheridan, another secretary in the office,

9 described the practice in particular and how it changed

10 to a political dimension, and she described the impact

11 of Colin Duffy on the work at the office. There is

12 a reference also in paragraph 36 of tension being caused

13 among the staff. Annette Sheridan had worked in the

14 office for nine and a half years and she says that when

15 Colin Duffy became a client, it had an effect on

16 everyone working in the practice. She comments on the

17 importance of the Duffy case and the result of the

18 acquittal of Mr Duffy in relation to the Lyness murder.

19 Breandan Mac Cionnaith and Joe Duffy were often in

20 the office as well. And I just say this now for the

21 sake of completion: She had not noticed any mark on

22 Rosemary Nelson after the alleged assault on the

23 Garvaghy Road. Colin Duffy lived in her house and got

24 steel doors fitted. Rosemary Nelson told her that the

25 police hated her. She attended regularly -- that is




1 Ms Sheridan -- at the police station to make complaints

2 with clients. She did not know if Rosemary Nelson had

3 asked for any protection.

4 I will just mention in connection with

5 Annette Sheridan, because I may not mention it later,

6 that she was not actively called as a witness, but her

7 husband who worked in a local newspaper was called as

8 a witness and you will remember the rather remarkable

9 description of Annette Sheridan bringing home from the

10 office a file containing apparently threats and how they

11 were stunned with this document when they read it

12 together. And it was apparently -- well, we assume it

13 was taken back to the office. Curiously, that file

14 never turned up when the practice was taken over after

15 her death. That file never appeared and we don't,

16 therefore, know what was in it about threats because

17 Rosemary Nelson never actually herself reported any

18 threats to the police.

19 Bernadette Bradshaw was another lady who worked in

20 the office and she said she had seen threatening letters

21 in the office but it was unlikely that these were given

22 to the police because Rosemary Nelson didn't trust the

23 police.

24 Eunan Magee, Rosemary's brother, says at

25 paragraph 4:




1 "When Rosemary started to work for Colin Duffy, this

2 was the first time that things changed."

3 But he said that her relationship with the police

4 was not always bad and he referred to an occasion when

5 they were stopped by the police when they were out in

6 the car together, and he says:

7 "I remember that at the time the fact that they were

8 friendly made me quite uncomfortable. Although neither

9 of us had any political associations, you don't want to

10 be seen to have any associations or to be too friendly

11 with certain people in the community. That's just

12 really a part of what life is like in this part of the

13 world."

14 Now, that was clearly a reference to the police. It

15 was an attitude to the police: don't be seen to be too

16 pally with the police or too friendly, it is not good.

17 THE CHAIRMAN: Would that be a convenient moment for you --

18 MR DONALDSON: Yes, sir.

19 THE CHAIRMAN: -- Mr Donaldson, for us to have a quarter of

20 an hour break for the shorthand writer?


22 THE CHAIRMAN: Thank you. We will break off until half past

23 two.

24 (2.15 pm)

25 (Short break)




1 (2.33 pm)

2 THE CHAIRMAN: Yes, Mr Donaldson?

3 MR DONALDSON: Just before the break, sir, I had been

4 referring to some comments being made by Eunan Magee,

5 Rosemary's brother. I dealt with the first, and he went

6 on then to point out:

7 "Things probably would have been different for Rosie

8 if Colin Duffy had knocked on another solicitor's door

9 in 1992. Being associated with someone like him led

10 people to have certain perceptions of Rosie. I think

11 that, foolishly, she blurred the lines of client/friend

12 relationships."

13 Now, those, sir, are very telling remarks coming

14 from her own brother and I think very special attention

15 has to be paid to them. He obviously felt that she

16 should have kept a bit more distance between herself and

17 her clients, and he went on to say at paragraph 19:

18 "I think that Rosemary became associated with the

19 wrong sort of people, possibly because these were the

20 only cases that people ever heard about."

21 And he further stated:

22 "We all knew that the bomb had come from the

23 Loyalist community and I think that we all feel there

24 was collusion at certain levels and that the police

25 force was biased from the top down, with Ronnie Flanagan




1 as the leader."

2 Another witness -- he wasn't a witness, actually;

3 this was Kenneth McKee, a solicitor with the firm who

4 was not called as a witness. He started work with

5 Rosemary Nelson's firm on 5 April 1991. He said that

6 during the period they represented Colin Duffy, neither

7 Rosemary Nelson nor himself had any problems with the

8 police. Colin Duffy was arrested fairly regularly and

9 was a cool customer -- I'm quoting his words:

10 "Rosemary Nelson became a bit concerned and said

11 that 'the tail was beginning to wag the dog'."

12 Mr McKee went on to say that he did not think that

13 the Lyness case and the appeal affected the police's

14 attitude to Rosemary Nelson, but at paragraph 38 he

15 said:

16 "I believe it was after Colin Duffy's second arrest

17 for shooting two policemen that things changed and the

18 police formalised their approach with Rosemary Nelson."

19 He left Rosemary Nelson's practice in January 1995.

20 He said that Rosemary Nelson was often socialising

21 rather than working:

22 "I believe that she was often out during the day

23 with the priest whom she had become friendly with."

24 Mary Loughran, a secretary in the office, said that

25 Rosemary came in about 11.30 each day. Colin Duffy was




1 a high profile client, and she said:

2 "It seemed that from the point she represented

3 Duffy, anyone with a complaint against the authorities

4 started to come to Rosemary's practice."

5 At paragraph 18 she said that:

6 "Once he became a client, Duffy was a regular

7 visitor to the office either by himself or with his

8 friends. He came two or three times a week. Duffy's

9 visits continued even if he was not under a current

10 charge.

11 "I do not know why he continued to visit Rosemary's

12 office. The staff generally got used to him being

13 there. However, Colin Duffy annoyed me as Rosemary

14 wouldn't see any other clients when he turned up. This

15 messed up her appointments book."

16 She felt, however, that it was the Garvaghy Road

17 residents incidents which triggered the change in

18 Rosemary Nelson's practice and not the fact that

19 Colin Duffy was a client.

20 She mentioned the fact that Rosemary carried threat

21 documents or letters about in her handbag. It was not

22 known, however, where the handbag went to, nor the

23 office diaries because after her death neither her

24 handbag wasn't inspected, and it probably was maybe the

25 subject of some criticism of MIT, nor were the office




1 diaries found.

2 In relation to the question raised by RNI, it would

3 be our submission that Rosemary Nelson's attitude to the

4 police changed fairly dramatically just before or around

5 the time of Colin Duffy's arrest for the police murders.

6 It is our further submission that this change came about

7 due largely to the influence of Colin Duffy, [ redacted

8 redacted

9 redacted ]

10 THE CHAIRMAN: Is that submission really entirely well

11 founded, because as early as 3 October 1996

12 Rosemary Nelson spoke with somebody at British Irish

13 Rights Watch and was complaining then, in October 1996,

14 that police officers were saying words to this effect:

15 "You don't want her, she is a Provo. We will tell

16 Billy Wright your solicitor's address and we will bring

17 him to the house".

18 What do you say about that? Bearing in

19 mind October 1996.

20 MR DONALDSON: Well, perhaps that was something that was

21 said -- well, her attitude -- the changing attitude

22 didn't become manifest until some time later. Perhaps

23 it was the germ of the change. It is hard to say about

24 these matters just exactly precisely when it occurred

25 and, indeed, why it occurred. One can only venture




1 that.

2 But the reason I make that submission, it is really

3 based on the material which I have just drawn to your

4 attention, things that were said by people in the

5 office, Mr McKee and so on. But no doubt there may be

6 room for another view, that it was something that had

7 developed a bit earlier. But the view -- it is hard to

8 get past the view of people in the office, people who

9 were close to her, who felt that Duffy was really the

10 precipitant of --

11 THE CHAIRMAN: You see, 18 February 1997, she telephoned

12 British Irish Rights Watch saying the abuse and threats

13 were escalating and they included sexual innuendo. This

14 is months before the murder of the two constables.

15 MR DONALDSON: That evidence -- none of that actually

16 emerged until after Duffy was charged with the murders.

17 None of that actually came into -- I'll deal with that

18 later in some more detail. It didn't come to the fore,

19 and there is a rather strange -- in fact, I'm tempted to

20 say perhaps wait until I have finished some of my

21 submissions because I deal with that in some more detail

22 later.

23 THE CHAIRMAN: Right. Remember, I have got those matters in

24 mind.

25 MR DONALDSON: Of course.




1 THE CHAIRMAN: Yes, thank you. Yes?

2 MR DONALDSON: But we say that after this certainly Mr McKee

3 had the idea that -- and Rosemary mentioned -- that the

4 tail was beginning to wag the dog and that is

5 a reference clearly, I think, to Mr Duffy.

6 Now, I have to say this, however, that

7 Rosemary Nelson by all appearances, and from all that

8 one hears, was by nature a warm-hearted, friendly woman

9 who truly did her best for her clients without thought

10 of financial gain. Sadly, it would appear that she took

11 a wrong turn somewhere which affected her work and her

12 lifestyle.

13 Now, I want to move to another topic also arising

14 from the letter, Mr Myers' letter, and this concerns the

15 treatment of defence solicitors by the RUC. RNI raised

16 this issue in the letter of 23 April 2009 under the

17 heading of "Complaints and related matters". I'll just

18 quote again from the letter because it is quite

19 important:

20 "How should the Panel approach the general evidence

21 which they have received and material which they have

22 considered concerning the RUC's treatment of defence

23 solicitors, for example, from other solicitors in

24 practice at the time and from NGOs, and what weight

25 should be attached to it."




1 And in particular does the evidence and material

2 disclose:

3 "... a widespread and systemic denegration of

4 solicitors to clients in the holding centres."

5 As suggested by the family in, for example, Part 1,

6 chapter 4 at paragraph 4.4.

7 Now, this issue as a whole is comprised of a number

8 of strands. Firstly and fundamentally, there is the

9 issue of the Lurgan Nine complainants who were all

10 clients of Rosemary Nelson. The general evidence coming

11 from those persons was to the effect that the police

12 interviewers had verbally abused and threatened

13 Rosemary Nelson. We consider that those allegations lie

14 at the heart of the case against the police.

15 Secondly, but in quite a different category, are the

16 allegations being made by other solicitors as to abusive

17 and insulting remarks being made about them to their

18 clients at different places and at different times.

19 And thirdly, and of lesser importance and much

20 lesser weight, are the allegations made by NGOs. These

21 principally concern the passing on of the allegations

22 arising in respect of the first two categories. The

23 NGOs, the authors of those letters and so forth, had

24 themselves -- or did not claim to have -- any first-hand

25 knowledge on the issue.




1 Now, taking the first point, the allegations made by

2 the Lurgan Nine, I will come to that in some more detail

3 later because it is important. We dealt with them in

4 chapter 6 of the family's submissions -- sorry, they are

5 dealt with in detail in the family's submissions and

6 they say the declared intention in doing so:

7 "... is to highlight some aspects of the evidence

8 which it is submitted to be of crucial importance in

9 terms of making an assessment of this aspect of the

10 evidence."

11 Now, we disagree entirely with that proposition,

12 that in fact it does such a thing. It is acknowledged

13 as something of an understatement where, in the family's

14 submissions, they concede:

15 "In some cases, there has been a certain lack of

16 consistency in the allegations."

17 And at paragraph 6.106 of their submissions, they

18 acknowledge:

19 "There are infirmities in the evidence of the

20 various clients."

21 In our written submissions we have already covered

22 the position of the Lurgan Nine in some detail and we

23 will return to the matter later because of their obvious

24 importance. And we refer to paragraph 4 and submissions

25 4(g) to 4(m). Because of the inconsistent, flawed and




1 implausible nature of the allegations made by the

2 Lurgan Nine, the family's legal advisers are apparently

3 attempting to bolster a weak case by relying on the

4 allegations of other solicitors as identified in the

5 second category at the beginning of this section.

6 This is dealt with in chapter 4 of our written

7 submissions. They submit that the evidence of the other

8 solicitors practising across Northern Ireland is of

9 critical importance in assessing this question.

10 Before considering the substance of the argument, we

11 would make a number of points. Firstly, it is probably

12 not appropriate for the Tribunal to embark on the

13 exercise of examining such other allegations as they are

14 probably outwith the Terms of Reference of this Inquiry.

15 THE CHAIRMAN: But surely they may provide some measure of

16 confirmation of the allegations relating to

17 Rosemary Nelson?

18 MR DONALDSON: I'm going to deal with that, sir. I'm coming

19 to that.

20 THE CHAIRMAN: Thank you.

21 MR DONALDSON: Still on the first point, the general issue

22 of alleged ill-treatment of solicitors by police

23 officers is not relevant to the Inquiry's Terms of

24 Reference unless it can shed particular light on the

25 evidence in respect of issues concerning




1 Rosemary Nelson. The issue was not the subject of

2 systemic investigation by the Inquiry. It did not

3 feature in the Inquiry's List of Issues and it is beyond

4 the Inquiry's proper remit to make any general findings

5 with respect to the matter.

6 The second point we make is that what different

7 police officers may have said or done on different

8 occasions with different clients in different places

9 cannot greatly assist in the determination of the

10 specific allegations being made by the Lurgan Nine

11 against identifiable police officers or identifiable

12 groups of police officers.

13 The third general point is even if this other

14 evidence had the potential to be corroborative, which we

15 don't think it has, it should not be relied upon to

16 support the Lurgan Nine allegations which are so

17 inherently unreliable and incredible. It is

18 a fundamental legal principle that evidence, even if

19 good, should not be relied upon to corroborate other

20 evidence which is inherently unreliable.

21 Now, I have something -- if I can find it. Yes.

22 I referred to a proposition of law in the case of

23 DPP v Hester, reported in 1973 appeal cases, 296 at 315,

24 where Lord Morris said as follows:

25 "The purpose of corroboration is not to give




1 validity or credence to evidence which is deficient or

2 suspect or incredible, but only to confirm and support

3 that which, as evidence, is sufficient and satisfactory

4 and credible, and corroborative evidence will only

5 fulfil its role if it is itself completely credible."

6 THE CHAIRMAN: Of course that was said not context of

7 a criminal trial by Lord Morris.

8 MR DONALDSON: It is just as applicable here, sir. It is of

9 universal application, in fact, in relation to a common

10 sense approach. You can't support a bad proposition,

11 however bad, with a good proposition, however good. It

12 is like putting, as the saying goes, new wine in old

13 bottles. This is what it amounts to, and you know what

14 happens.

15 Now, the fourth point of a general nature I want to

16 make in this regard is this: the evidence that the

17 Inquiry has received concerning the alleged treatment of

18 defence solicitors was highly selective. Of the

19 25 lawyers interviewed by RNI purportedly offering

20 evidence on threats, the Inquiry heard from just five of

21 them and there were certainly some flaws in their

22 evidence. For example, it was largely based on hearsay

23 and not resulting, in many cases, in any complaints

24 being made. The Inquiry chose not to hear from

25 witnesses who said that they had not been threatened and




1 who disassociated themselves from a press articles that

2 was in the Irish Times claiming to represent their


4 I would like just to deal with a few of those

5 arising in that regard. For example, the Inquiry heard

6 from Patricia Coyle. She in fact had brought a case

7 herself in the High Court against the police in relation

8 to her treatment by the police, and that action of hers

9 failed. It is noted also that she didn't apparently

10 herself make any other complaint that we are aware of,

11 and it is notable also that at paragraph 4 of her

12 statement she does indicate that the police warned her

13 of possible threats. That's just a side issue which

14 I mention in passing.

15 Another solicitor who was not called, Kevin Delaney,

16 he was a practising solicitor in West Belfast

17 representing Republican clients. He was a co-signatory

18 to the newspaper article, but he said he never received

19 any threats or adverse comments from clients and he said

20 that his signature to the newspaper article was based on

21 anecdotal information from other solicitors.

22 Another solicitor, Paul Haughey, who made

23 a statement and whose name appeared in the Irish Times

24 with a list of other solicitors, he did not consent to

25 this and the Irish Times printed a correction. At




1 paragraph 6, he states that he never did make

2 a complaint, nor had he been subject to any kind of ill

3 treatment.

4 Dennis Mullan, another solicitor whose name appeared

5 in the Irish Times, whom he contacted and stated that it

6 did not represent his views, he said that he represented

7 a lot of accused in the supergrass trials and obviously

8 had a lot of experience. He said he had never received

9 abuse or threats from the police.

10 There were a number who did say they had, such as

11 Frank McManus, who was based in Fermanagh. And by 1997

12 to 1999, he would have been at the holding centres very

13 rarely. His evidence related largely to an earlier

14 period and the Inquiry has not looked at the

15 documentation of any complaints made by him.

16 So that, looking at it in the round, these

17 references to other solicitors making complaints, there

18 was precious little evidence about that and we never

19 actually -- I don't think we were ever shown any

20 letter -- and I will be corrected if I'm wrong --

21 identifying any particular complaint made by other

22 solicitors.

23 DAME VALERIE STRACHAN: Could I just ask -- sorry to

24 interrupt -- one of the witnesses whom we didn't call

25 was Kenneth McKee. Now, he also referred to what he




1 described, I think, as systematic abuse of solicitors to

2 the clients and he also went on to explain why he didn't

3 make complaints. Have you taken that into account in

4 your argument?

5 MR DONALDSON: I'm not quite finished with it yet, madam,

6 but I want to cover -- if I may cover the whole ground,

7 because our submission really generally about the

8 solicitors, the other solicitors as a whole, is that

9 although there was some evidence coming in, it was not

10 very strong evidence; it hadn't been tested very much.

11 For example, Mr McKee was not called to give evidence,

12 and in relation to the matter -- if one wanted to rely

13 on this or place any reliance on that kind of evidence,

14 one would need to have heard something from the clients

15 who were making the complaints in order to test it.

16 All we have is some hearsay evidence at a distance,

17 a distance in time and a distance in place. For

18 example, Frank McManus practised away at the other end

19 of the county, down in Enniskillen. The Fahy brothers

20 practised in Omagh and they were generally from all over

21 Northern Ireland.

22 There are other matters I want to mention later too

23 concerning the involvement of the Law Society, and

24 Mr Bayley, who was not called to give evidence, deals

25 with this as well. So there is quite a lot to look at




1 here. But our ultimate conclusion about this, our

2 ultimate submission about this, is that you really

3 couldn't place any reliance on that in support of the

4 Lurgan Nine allegations. That's fundamentally our

5 point.

6 THE CHAIRMAN: You mentioned hearsay. Hearsay evidence is

7 still evidence, it is a question of what weight you put

8 on it.

9 MR DONALDSON: True enough, yes. But it is second- and

10 third-hand hearsay. Yes, it depends what weight you

11 place on it, and what is very important is the fact that

12 some of the people who were giving this hearsay evidence

13 were not even called, were not even heard by this

14 Inquiry or were not examined about it. So it is a very

15 loose, woolly area on which we think no reliance

16 whatsoever can be placed. And the odd thing is too, if

17 you come back to -- this is in order to support the

18 allegations made by the Lurgan Nine. The difficulty we

19 had about that is that there is going to be no findings

20 of fact about the Lurgan Nine, there is going to be no

21 criticism of police officers, which really makes life

22 very difficult for us in making meaningful submissions.

23 But we will do our best.

24 THE CHAIRMAN: Aren't we entitled to infer that some of the

25 allegations may be baseless, some of them may be




1 exaggerated and some of them may have some ring of truth

2 about them?

3 MR DONALDSON: Are you speaking, sir, of the Lurgan Nine

4 allegations?

5 THE CHAIRMAN: Of the allegations generally, including the

6 Lurgan Nine.

7 MR DONALDSON: I will take firstly the Lurgan Nine.

8 Our underlying submission about the Lurgan Nine is

9 that you cannot, since you are not making findings of

10 fact on the Lurgan Nine, you cannot therefore draw

11 inferences from that. You can't form perceptions about

12 it and it would be quite -- we suggest it would be quite

13 unfair to do so. And in relation to the generality of

14 these other matters, they are really of no significant

15 weight whatsoever and they haven't been tested. None of

16 this has been tested.

17 We accept Mr McCollum's submission on that point as

18 well. He made the same point on his feet without having

19 the time to think about it, but we consider that his

20 submission was well made in that regard. You should not

21 place any attention, you should not place any reliance

22 whatsoever on evidence of that kind because it has not

23 been properly tested.

24 Now, I think that I have been taken off my track

25 a bit here. I was dealing -- yes, I had gone through




1 the list of some of the solicitors who had given

2 evidence on this point, some on the general matters

3 relating not to the Lurgan Nine allegations but to these

4 imprecise matters arising.

5 May I come to the fifth point we would like to make,

6 and that is that much of the evidence concerning alleged

7 threats was also methodologically flawed, as explained

8 in section 7 of our submissions with respect to the NGOs

9 and Mr Cumaraswamy's report.

10 Point number 6, the proposition that the evidence

11 disclosed as a widespread and systemic denegration of

12 solicitors, is entirely wrong and misconceived. Such

13 a conclusion flies in the face of the conclusions of the

14 Independent Commissioner for the Holding Centres. It

15 also goes far beyond the findings of the Police

16 Ombudsman's survey published in 2003:

17 "It should be noted that the great majority of the

18 allegations made by legal personnel in this study

19 related to minor, low level incidents that had taken

20 place some time ago in the past and the lawyers surveyed

21 have themselves told us that there was no widespread or

22 systemic police misconduct towards solicitors and

23 lawyers taking place at the present time."

24 That's a quote taken from her report.

25 For this Inquiry to reach the conclusion that there




1 was such systemic misconduct in the past on the basis of

2 the limited investigation conducted by it would, we

3 suggest, be entirely unreasonable.

4 Our final general point is that no weight should be

5 attached to the general evidence concerning alleged

6 misconduct towards solicitors by this Inquiry as that

7 material has no contribution to make to its work.

8 Now, I have dealt with the evidence of some of the

9 other solicitors concerned and I have reviewed some of

10 that in detail, and some propositions arising from that

11 are as follows.

12 Few, if any, of these solicitors ever made any

13 formal complaints and I think I'm correct in saying that

14 not a single copy letter was ever produced to indicate

15 that a complaint was ever made, and I have made that

16 point already. And secondly, that the solicitors who

17 made statements to Eversheds were only from one side of

18 the community. It wasn't a balanced survey, at least --

19 I'm not speaking for the Ombudsman, I'm speaking about

20 those solicitors who actively were interviewed by

21 Eversheds. And even Mr Cumaraswamy was moved to say

22 that there did not appear to be much in the way of

23 complaints by such solicitors.

24 So, in fact, those allegations made by other

25 solicitors suffer from that particular disadvantage as




1 well, in that they are all apparently come in rather

2 late in the day. And we have already made reference to

3 the Police Ombudsman's report.

4 Now, I think there is another statement I would like

5 to refer to. Yes, that's the statement of John Bailie.

6 Now, John Bailie was the Secretary of the Law Society.

7 He wasn't, unfortunately, called to give evidence,

8 although I think we asked that he should, and he deals

9 with this matter of the processing -- or at least the

10 dealing with allegations made by solicitors. At

11 paragraph 14 he says:

12 "I was not personally aware of any incidents of

13 intimidation of defence solicitors by the RUC until four

14 such incidents were formally reported to the Society

15 subsequently."

16 Now, I think I'm right in saying that that didn't

17 happen until 1998.

18 You will recollect in fact that the Law Society

19 published a notice in The Writ, which is the

20 Law Society -- kind of a small newspaper or sheet

21 circulating in the profession. And he said the notice

22 was put in, and at paragraph 29 he says that there was

23 a total of four responses received by the president,

24 including a letter from Rosemary Nelson, and that was

25 in April 1998.




1 Then he describes that following the receipt of the

2 complaints, they were reviewed and dealt with with the

3 president, Mrs Antoinette Curran. He says that the six

4 statements which were received were dated

5 27 February 1998, so it took some time for them to get

6 in. Then he describes what action they tried to take

7 about that and I think that he says later in his

8 statement that they wrote to Rosemary Nelson asking some

9 further questions and no reply was received.

10 The point I make generally about that evidence of

11 Mr Bailie is that it confirms that for some reason or

12 other, these complaints so-called from other solicitors,

13 the majority, that is, certainly, did not come in until

14 1998 and that is some time after the NGO balloon had

15 gone up and it went up really shortly after the activity

16 started -- and I'll come to the deal with the NGO

17 activity. But the NGO activity was certainly reaching

18 epidemic proportions some time later in the summer of

19 1997, after the murder of Rosemary Nelson.

20 Sir, sorry, I'm corrected --

21 THE CHAIRMAN: The murder of the two police officers.

22 MR DONALDSON: After the murder of the two police officers,

23 I beg your pardon.

24 THE CHAIRMAN: There is some suggestion there was a lack of

25 empathy between defence solicitors whose clients were




1 mainly Nationalist or Republicans and the Law Society.


3 THE CHAIRMAN: There was a certain degree of cultural divide

4 within the total membership of the Law Society between

5 those who represented those accused of terrorist

6 offences on the Republican side and the main mass of the

7 Law Society, and that could well explain that those

8 solicitors didn't make complaints or raise them with the

9 Law Society.

10 MR DONALDSON: I think, sir, I wouldn't accept that. I feel

11 that in fact I would give more credit to the Law Society

12 than that. After all, Mr McGrory was a member himself

13 of that important committee in the Law Society and

14 I think that he and Mr Richard Monteith, another

15 solicitor who was on the defence side mostly for

16 Loyalist terrorists -- suspected terrorists, that he and

17 Mr Monteith and Mr McGrory were not apparently in any

18 particular disagreement about it.

19 So I don't think, with respect, that any so-called

20 cultural divide or distinctions within the Law Society,

21 which I had never heard about before, would have

22 affected the manner in which it was dealt with. The

23 president of the Law Society at that time,

24 Mrs Antoinette Curran, I think it would be fairly -- I

25 can tell you that she in fact came, generally speaking,




1 from the Nationalist side of the community and therefore

2 I cannot accept that point, sir, as having any validity.

3 DAME VALERIE STRACHAN: Just related to that, I think we

4 also heard a suggestion that there was perhaps a lack of

5 empathy on the part of most of the Law Society, not

6 particularly on a religious divide but as between civil

7 and criminal. I don't know if you would like to comment

8 on that.

9 MR DONALDSON: I am afraid I cannot really -- no one was

10 really asked about that and I couldn't really comment on

11 that. Certainly there was always some differences

12 between those on the civil side and those on the

13 criminal side, but it didn't divide along any kind of

14 religious lines. And I think -- in answering that

15 question, madam, I think that is a question that would

16 need to have been addressed with either Mrs Curran -- I

17 don't think she was able to give evidence. I think she

18 wasn't well. But -- or Mr Bailie or someone like that

19 could have answered it.

20 Again, I don't think that there is -- with great

21 respect, I don't think that there is any particular

22 merit in that point if it is intended to indicate that

23 there was going to be some lack of attention from the

24 Law Society in relation to it.

25 And likewise, there was never any question of the




1 Bar Council getting involved as well and the Bar Council

2 was a very diverse group in terms of its politics. And,

3 again, I can say from here that there is no question of

4 anything being brushed under the carpet and I don't

5 think the question of anything being brushed under the

6 carpet -- although I know that's not your terminology,

7 but I don't think that any matter of importance like

8 that would have been ignored. I think the really key

9 point here is that it is very significant that none of

10 this material was actively pushed in before the

11 Law Society until after 1997, and June 1997 is

12 a significant date that has to be always borne in mind

13 here.

14 Now, I want to come next to a topic which arises

15 from the RNI letter again, and the matter raised is as

16 follows: is there a discernible pattern or similarity in

17 detail to the various complaints made by clients of

18 Rosemary Nelson's? If so, what conclusion may be drawn

19 from that? And reference is made to the PSNI's

20 submissions. In particular, does the evidence support

21 any suggestions made by the PSNI that the complaints

22 were part of a concerted campaign to discredit the

23 police?

24 Now, there are undoubtedly similarities between the

25 various complaints which were made by Rosemary Nelson's




1 clients, and we have already emphasised that these

2 clients were almost certainly well-known to each other

3 and that they had ample opportunity to collaborate in

4 fabricating allegations against the police. It may be

5 suggested that the similarities in the complaints

6 demonstrate consistency and that, in turn, may

7 demonstrate or go towards demonstrating the truth of the

8 allegations.

9 The argument would have some force if those making

10 the allegations were unknown to each other, were

11 represented by different solicitors and made the

12 allegations promptly without the opportunity to

13 collaborate. That was not the case. Thus the fact that

14 many of the complaints were similar in detail is not

15 a sound basis on which the Tribunal might conclude that

16 the allegations were true.

17 Now, again, we come to this difficulty about whether

18 or not the Tribunal is going to decide that the

19 allegations were true. I don't know at the moment --

20 and I'm not quite clear in my own mind -- what decisions

21 the Tribunal intend to make about the Lurgan Nine

22 allegations, what findings of any facts are going to be

23 made or what inferences can be drawn from it. And the

24 impression I have at the moment is that no facts are

25 going to be found. And if you don't find facts, you




1 can't form inferences, nor can you have perceptions from

2 matters which are not sustained, about which you are not

3 prepared to find facts. It therefore follows that the

4 Tribunal cannot draw any conclusions on that basis and

5 that the allegations -- or that the allegations were

6 true or were likely to be true.

7 We have stated in our submissions that a plausible

8 interpretation of the evidence is that the complaints

9 were part of a concerted campaign to discredit the

10 police. Many of the police officers were certainly of

11 that opinion. That, however, may not be the only reason

12 why false allegations were made of this nature. It is

13 remarkable that none of the complaints which followed

14 the arrest and questioning of a number of the

15 Lurgan Nine in February 1997 came to light until

16 after June 1977. This is this important case.

17 THE CHAIRMAN: Is that entirely correct?

18 MR DONALDSON: It is in fact completely correct that no

19 evidence was ever produced until after June of 1997.

20 I'm going to deal -- there were a couple of letters now

21 which I will -- I think that maybe what you have in

22 mind, Mr Chairman, there was the LAJI letter and the

23 Torricelli letters, perhaps what you are thinking of,

24 and I'm going to comment on those later.

25 THE CHAIRMAN: Didn't Mr Vernon write and make a complaint




1 when a client -- in a sense a client of his although

2 with Rosemary Nelson's firm, on the very day he was

3 being interviewed?

4 MR DONALDSON: Which client was that, sir?

5 THE CHAIRMAN: I think it is -- was it C208?

6 MR DONALDSON: I'll have to check that, if I may.


8 MR DONALDSON: The evidence, we say, has demonstrated quite

9 strongly that Rosemary Nelson was extremely concerned

10 about the arrest of Colin Duffy in June 1997 for the

11 police murders and that she went to unprecedented

12 lengths to secure his release and have the charges

13 against him dropped. We are, therefore, of the view

14 that there may well have been a connection between the

15 lodging of the complaints and the overwhelming desire on

16 the part of Rosemary Nelson to protect her client

17 Colin Duffy.

18 There is also evidence which indicates that

19 Rosemary Nelson had encouraged her clients to make

20 complaints. In this context, we would like to make some

21 further comment about the complaints made by and on

22 behalf of the Lurgan Nine.

23 I should say by way of introduction that since on or

24 about the year 1988, there was a complaints system in

25 place in Northern Ireland which was overseen by ICPC.




1 It had a supervisory role and enjoyed complete

2 independence, and this system remained in place until

3 the appointment of a Police Ombudsman for

4 Northern Ireland in the year 2000.

5 The ICPC system, which is still in place in England

6 and Wales, was replaced for political and perceptional

7 reasons and not because of any intrinsic flaws. Certain

8 persons and groups have expressed a lack of confidence

9 in the system.

10 Over a relatively short period of time a series of

11 complaints against the police were made by and on behalf

12 of nine persons from Lurgan, the Lurgan Nine. All were

13 clients of Rosemary Nelson. They had at various times

14 been arrested for terrorist crimes and questioned by CID

15 officers. These suspects adopted the usual tactic of

16 those suspected of terrorist crimes and refused to

17 answer questions. It seems highly likely that the

18 Lurgan Nine were well-known to each other. Most of them

19 came from the Kilwilke Estate area, which was

20 effectively a no-go area for the police, and

21 Colin Duffy, one of the Lurgan Nine, was almost

22 certainly the local leader of the PIRA in Lurgan and

23 certainly there was a lot of evidence about that.

24 We say that the Lurgan Nine complaints are highly

25 significant for the following reasons. Firstly, the




1 substance of the complaints concern alleged personal

2 attacks on Rosemary Nelson's character, integrity and

3 professionalism. Secondly, some of the complaints were

4 to the effect that officers threatened her life.

5 Thirdly, these complaints appear to have created

6 a platform from which a vast campaign of protest was

7 launched by LAJI, BIRW, Amnesty International and many

8 others.

9 Fourthly, in his opening statement, Senior Counsel

10 for the Inquiry devoted a great deal of time to

11 describing in detail many of the allegations made to the

12 Lurgan 9.

13 On Day 3 at page 84, he said:

14 "We are looking above or at those complaints which

15 fit within with the matters set out in the Terms of

16 Reference; in other words, those which revolve around

17 the question of threats, and also what we have described

18 in the List of Issues as adverse behaviour or comment."

19 Days 4, 5 and 6 were largely devoted to this topic

20 and I think he mentioned the words -- and I hope I am

21 right -- that these complaints lie at the heart of

22 issue 2 and 4, which I have already set out. And he

23 said they also involve some of the other listed issues.

24 The issues are couched in terms -- this is continues

25 my own submissions -- that strongly indicate that




1 findings of fact are essential, and Mr Phillips clearly

2 acknowledged this in his opening statement on Day 6 when

3 he said:

4 "But if I may at this stage try to draw some themes

5 out in relation to the police complaints, the List of

6 Issues requires you to consider what threats were made

7 to Rosemary Nelson's personal safety and what adverse

8 behaviour or comments she was subject to and, in both

9 cases, to consider the nature and extent of and the

10 reasons for such threats or adverse behaviours and

11 comment."

12 That is issues 2 and 4 and we would suggest also

13 that it involves issues 3, 5 and 6.

14 In relation to the Lurgan Nine, he continued as

15 follows:

16 "The first matter to be considered in relation to

17 each of these nine cases is whether, on the material you

18 have and the evidence you have read and later hear,

19 threats or adverse comments or comment in fact occurred

20 and you have to weigh up the material and the accounts

21 given in what I hope I can be forgiven for describing as

22 the usual way."

23 And I say that we would agree with the import of

24 this advice given by Mr Phillips. I'm not going to

25 say -- although I had intended to say a little more, but




1 I'll content myself with saying not very much about

2 this. That related to the matter or application to

3 cross-examine the Lurgan Nine.

4 I think we felt -- and we still feel -- in spite of

5 the decision given in court by Lord Justice Girvan that

6 in fact we should have been allowed to deal -- to

7 cross-examine those of the Lurgan Nine who gave

8 evidence. It was a matter within the discretion of the

9 Inquiry. I think what the court -- what

10 Lord Justice Girvan really held was that it was

11 something for you to decide as you felt appropriate. I

12 don't want to say anything further about it, but it is

13 just something that we feel still a little unhappy about

14 because these were people making serious allegations and

15 it is something that normally one would expect to be

16 able to deal with in an direct way like that.

17 I can take the first case -- I'm not going to go

18 through them all. Although the case of Barry Anthony

19 Toman has been reviewed in our written submissions, we

20 consider that it might be instructive to look at this

21 case in a little more detail in order to consider its

22 characteristics and how it illustrates the incredible

23 and unbelievable nature of the complaints made.

24 Now, I want to go, if I may, to the notes on

25 Mr Toman. Barry Toman came from the Kilwilke Estate,




1 the same estate where Colin Duffy came from. He and his

2 brother Colm were arrested with two others on 11/02/97

3 in connection with a rocket attack on a police patrol on

4 06/02/97. He was interviewed at Gough Barracks between

5 11 and 14 February 1997. He had 18 interviews. During

6 the course of his detention he was visited by his

7 solicitor, Rosemary Nelson, at least four times and by

8 her assistant Brian Leeson on two other occasions. When

9 asked on his release if he had any complaints to make

10 about any police officer whilst in custody, he replied:

11 "No, none at all."

12 He declined a medical examination. After his

13 release from custody without charge, he did not make any

14 complaint of any kind until 20 October 1997, that is

15 eight months later, when he made a statement to

16 Paul Mageean.

17 THE CHAIRMAN: One has to take that with the evidence we

18 have heard that Rosemary Nelson mentioned that she had

19 six clients in Gough last week when she spoke on

20 18 February 1997 --


22 THE CHAIRMAN: -- to British Irish Rights Watch, when she,

23 Rosemary Nelson, was saying allegations are being made,

24 abuse was being made about her and threats were being

25 made and there was a sexual innuendo.




1 MR DONALDSON: This is the point, sir, that -- in fact Barry

2 Toman -- how would she have known about Barry Toman's

3 complaint? Barry Toman, I don't think -- and I will be

4 corrected if I'm wrong -- was not asked about that,

5 whether or not -- if and when he had spoken to

6 Rosemary Nelson, when he had given her that information,

7 if he had. There are some matters which I can't explain

8 from here as to why that was so. All I can deal with

9 here at the moment is what is the evidence concerning

10 Barry Toman.

11 That is true, Rosemary Nelson did in fact write such

12 a letter and there was information, for example, passed

13 on to -- obviously to Mr Torricelli and to Mr Lynch of

14 LAJI some time, I would say, around March of 1997. But

15 when one looks at the substance of that, one can see

16 that it falls very far short of the substantial nature

17 of the allegations being made by the Lurgan Nine. And I

18 don't think, sir, either, in that letter to which you

19 have made reference, that Rosemary Nelson said that her

20 life had been threatened.

21 Now, again, you will correct me if I'm wrong, I'm

22 sure, but I don't think there is such a reference. And

23 how Rosemary Nelson could have known or guessed of this

24 sort of thing was stated in a general kind of way. I

25 don't think she necessarily identified the clients, but




1 all we can say at the moment is just what is the

2 evidence you have from Barry Toman in order to make some

3 decisions in connection with it.

4 Now, just to follow this through, Barry Toman also

5 declined and did not attend for interview by Complaints

6 and Discipline, that is to C146 -- sorry, nor did he

7 attend -- that is P146 -- nor did he attend, although

8 frequently requested to do so by Commander Mulvihill.

9 Barry Toman made a statement to Eversheds on 29 May 2007

10 and he gave evidence to the Tribunal here on

11 11 June 2008, Day 33.

12 During the course the hearing, you, Mr Chairman,

13 asked him why he had stated that he had no complaint to

14 make when he was being released without charge, and the

15 following exchange occurred:

16 "Question: You have said that threats were made to

17 the life of Rosemary Nelson when you were in Gough?

18 "Answer: That is correct.

19 "Question: Were threats made to anyone else in your

20 presence?

21 "Answer: My presence? Members of my family, two

22 were threatened.

23 "Question: Members of your family and yourself

24 also?

25 "Answer: Yes, that's right.




1 "Question: Why did you say you had no complaints to

2 make?

3 "Answer: No, none at all.

4 "Question: If complaints are made not only about

5 Rosemary Nelson, threats to her life, but threats to you

6 and your family?

7 "Answer: As I have already stated, I had no faith

8 in the police at that time."

9 That may seem rather a poor answer from people who

10 were not without some sophistication in relation to

11 whether or not they should make a complaint at the time

12 of leaving the police station.

13 Mr Mulvihill had written a number of letters to

14 Barry Toman requesting him to attend for interview but

15 Toman denied having received any letters. He was asked

16 in some detail about this by Mr Savill and

17 a supplementary question was asked by

18 Dame Valerie Strachan, but he still denied having

19 received the letters. It is our submission that no

20 credence whatsoever can be given to the evidence of this

21 witness, and even according to Mr Harvey QC when

22 addressing Lord Justice Girvan in respect of the

23 justice, he said that this witness had been:

24 "... discredited by Mr Savill's examination."

25 The Inquiry will, of course, take into account the




1 evidence of the police interviewers, namely P228, P169,

2 P162, P127, P121 and B145, all of whom made detailed

3 statements to Eversheds. It is also noteworthy that

4 P146 from Complaints and Discipline and

5 Commander Mulvihill interviewed and took statements from

6 all of the interviewing officers concerned.

7 There were considerable inconsistencies in the

8 accounts given by Barry Toman. The police officers

9 vehemently and convincingly denied that there was any

10 truth in the allegations and the Tribunal has had the

11 opportunity of seeing and hearing those officers giving

12 evidence.

13 Mr Toman was interviewed by B145, B169, P121, P162

14 and P228 and Constable Walker. We will deal with each

15 of the interviews in turn, including the evidence which

16 each gave to the Inquiry. It will be noted that some of

17 the CID interviewers were involved in the interviewing

18 of more than one of the Lurgan Nine suspects. In

19 respect of each interviewer, it is necessary to place in

20 context the nature of the complaints made by each

21 suspect and how and when these complaints came to be

22 investigated, as many were, by Complaints and Discipline

23 and subsequently, in some cases, by Commander Mulvihill.

24 I'll not necessarily go through all the comments

25 made by these interviewers, but if I can take, for




1 example, P121, who was quite important. He had been

2 a detective in Lurgan for about 13 years. He was very

3 experienced and well-known. He had been concerned in

4 interviewing C138, Mr Simmons and Colin Duffy, each of

5 whom made complaints. Most of the interviewing done

6 during this period by P121 was done in partnership with

7 DC Walker. In a nine-month period, there had been

8 13 murders in the Lurgan area.

9 These men were doing a difficult task in difficult

10 circumstances. P121 gave evidence to the Inquiry on

11 17/09/08. He was examined in considerable depth by

12 Mr Phillips QC and subjected to extremely vigorous

13 questioning. He confirmed that the interview notes were

14 verbatim except where there was a general conversation

15 or a summary of previous questions. At paragraph 14 of

16 his Eversheds statement, he said he had no access to

17 intelligence but he was aware that all of the persons he

18 interviewed were in PIRA. He had been told this at

19 briefings prior to interviews and by the local collator

20 of the intelligence. He sometimes also spoke to local

21 SB officers. He stated that he had no problem with

22 Rosemary Nelson.

23 As was the usual practice with terrorist suspects,

24 Mr Toman refused to answer questions but he would talk

25 freely about unrelated matters.




1 It was the practice in the holding centres at this

2 time for all interviews to be videotaped. There was

3 usually a uniformed inspector or sergeant on duty at the

4 holding centres to carry out periodic supervisions and

5 inspections at the interview rooms. It was also the

6 usual practice for all suspects to be seen at least

7 daily, at least once daily, by a doctor and there was

8 the opportunity for the suspect to be seen by a doctor

9 on leaving the holding centre. The suspect would also

10 be seen by uniformed personnel and given the opportunity

11 to make any complaint. Furthermore, in accordance with

12 the usual practice, suspects had the opportunity of

13 seeing their solicitors.

14 I would just like to say that in all the cases of

15 the Lurgan Nine, all had seen their solicitors quite

16 often during their period of being in custody.

17 After the appointment of Sir Louis Blom-Cooper as

18 Independent Commissioner for the Holding Centres, it was

19 also his practice to pay unannounced visits to suspects

20 in custody, who would then have the opportunity of

21 making a complaint if they wished to do so. Sir Louis

22 had an assistant, a retired consultant psychiatrist. It

23 is not record that any complaints were ever made by the

24 Lurgan Nine to either of these gentlemen. There were

25 also opportunities to complain at periodic reviews




1 carried out by senior officers.

2 Thus, for example, Mr Toman was seen by such

3 a person on 14 February 1997 at 4.52 pm. P121 was

4 involved in nine of the 19 interviews of Barry Toman.

5 His partner was DC Walker. In his evidence he

6 emphatically denied any threats or abusive remarks were

7 made about Rosemary Nelson during interviews, and when

8 later served with the Form 17/3, which contained

9 a summary of the allegations made by Mr Toman -- it was

10 a pure formality -- P121 said:

11 "Nothing to say at this stage."

12 Yet with this knowledge, Mr Phillips asked the

13 following question:

14 "So I'm bound to ask you therefore, wouldn't an

15 innocent man, innocent in relation to this

16 complaint/allegation, have explained on service of the

17 form his case and tried to prove his innocence?"

18 We think that wasn't a very fair question, bearing

19 in mind that Mr Phillips would have been well aware that

20 the service of such a form was indeed a pure formality

21 and a preview to an interview by a CID officer.

22 It will already have been noted that Barry Toman

23 declined to attend before Complaints and Discipline in

24 order to pursue his allegation of complaints and neither

25 did he intend to pursue these matters before




1 Commander Mulvihill when given the opportunity to do so.

2 On behalf of PSNI, we furnished the Inquiry counsel

3 of a list of questions and lines of enquiry with

4 Barry Toman and, unfortunately, a number of these

5 questions were not pursued, namely matters relating to

6 his record and his knowledge of the other persons -- the

7 other Lurgan Nine.

8 DC Walker gave evidence to the Tribunal on

9 8 October 2008. He was a very experienced CID detective

10 at Lurgan for some 16 years. A lot of allegations were

11 made against him and P121 by a number of terrorist

12 suspect interviewees. Most of the complainants were, or

13 were suspected members of PIRA and came from the

14 Kilwilke Estate. One of these was Mr [name redacted]. And

15 it has already been stated by some of the officers that

16 he was a prominent member of PIRA.

17 Walker had apparently helped to investigate the

18 Lyness murder and he felt that he may have interviewed

19 [name redacted] at some time in the past.

20 The officer -- he had said he had no access to

21 Special Branch files or computers although CID were

22 sometimes briefed by Special Branch as to threat levels.

23 A collator kept paper files on numerous suspects and the

24 CID had some access to them.

25 When giving evidence, he was shown a number of




1 Special Branch documents but he stated he had never seen

2 them nor had the information in them been communicated

3 to him, and he stated significantly that he had no

4 hostile views or negative perceptions of

5 Rosemary Nelson.

6 I say generally in relation to these police officers

7 that these were men who did this work day and daily. It

8 is right to say that many of the people they interviewed

9 were undoubtedly unattractive people. They were

10 professional officers. Interviewing these people, they

11 had no reason -- and it would seem that there was little

12 evidence apart from them to indicate that anything

13 untoward had occurred during interviews, and what

14 purpose would that have served in any event?

15 He went on to say in fact that the complaints were

16 an occupational hazard, but:

17 "In my opinion, it was a slur campaign against the

18 RUC or a ploy for some other purpose."

19 And he said at paragraph 16 of his Eversheds

20 statement:

21 "I suspect that a number of Rosemary Nelson's

22 clients, who were well-known to each other, plotted and

23 planned to make complaints many months after their

24 interviews. I am aware of the names and identities of

25 most of the terrorist suspects, including Colin Duffy,




1 who made allegations against the police to this Inquiry.

2 These persons, who happened also to be clients of

3 Rosemary Nelson, were active Republican terrorists from

4 Lurgan and were all well known to each other."

5 And he affirmed that the allegations -- there was no

6 substance to the Barry Toman allegations.

7 Following on from this --

8 THE CHAIRMAN: Mr Donaldson, bearing in mind the stress and

9 the danger which for years officers like P121 and their

10 families and their colleagues had been living under and

11 working under, although verbal abuse would not be

12 justified, wouldn't it be understandable in order to

13 break a suspect for, in their eyes, the best of motives,

14 to contain terrorism and save lives by verbal abuse if

15 a suspect would give information, would make admissions?

16 That would be of general advantage even though it may

17 not be justified?

18 MR DONALDSON: Well, I don't think so. The point is that

19 firstly the police officers concerned said that nothing

20 of that kind had occurred. In relation to making

21 allegations, for example, death threats, what possible

22 purpose, or what could be achieved by that? What could

23 be achieved by even verbal abuse of suspects in custody?

24 Bearing in mind that the sort of people they were

25 dealing with were not going to be talking, were not




1 going to be saying anything. I know that one of the

2 other officers said that he would do his best within the

3 law to break a suspect.

4 Now, perhaps the use of that term "break" -- I think

5 that those with police experience will understand that

6 when a suspect is being interviewed, the purpose if

7 possible is to obtain an admission or a confession from

8 him if that is appropriate, if it is strongly felt in

9 fact that he is the person responsible. But in doing

10 that, breaking a witness means changing him from the

11 position where he is not talking to the position where

12 he is prepared to talk. That might be described as

13 breaking. It is not suggestive -- it wasn't -- and I

14 don't think that the officer certainly so regarded it as

15 being something -- doing something extraordinary,

16 something wrong, to break a witness, such as threatening

17 him or promising him something to him.

18 Coming back to the point at a human level, I'm quite

19 sure it would happen from time to time that officers

20 might become exasperated with somebody who is just

21 simply not talking. To say, though, that that leads to

22 verbal abuse or is wrong, these were professional

23 officers. I think that -- I think Mr Mulvihill referred

24 to this partly as well, that he could see really no

25 purpose that could be achieved by doing these things.




1 These were experienced men. They knew perfectly well

2 that whatever they may say to these people, they were

3 not going to get any confessions from them. And

4 therefore, sir, we would resist very strongly the

5 inference that, for any reason, they might use verbal

6 abuse. We wouldn't accept that.

7 They have all -- it has been put to them, they have

8 been examined skilfully and very fully by Counsel for

9 the Tribunal, they have been pushed very hard. I'm not

10 complaining about that. They have been pushed very hard

11 indeed and yet they have been quite firm about that.

12 Now, you had the opportunity, of course, of seeing

13 them giving evidence. You will have formed a view about

14 some of these men. These were dedicated men, men who

15 were risking their lives day and daily. They were doing

16 this work, they had been doing it for years and I think

17 that some of the officers were obviously distraught at

18 allegations of this kind being made against them. Some

19 had never had allegations made against them before.

20 So it would be a very -- I think it is a step that

21 you as a tribunal should not take in finding that any of

22 these allegations were sustained. In relation to

23 virtually all of the Lurgan Nine, I could go through

24 them all in great detail. I have got the material in

25 front of me here to do it and I venture to say that it




1 would be easy to demonstrate to you that you could place

2 no credence whatsoever on the allegations made by the

3 Lurgan Nine. And that is why --

4 THE CHAIRMAN: You mentioned breaking a suspect. One motive

5 may be in order to obtain an admission. But another

6 motive, of course, may be to gain information; what is

7 commonly called "turning the suspect". Laudable in

8 itself as an object: to save lives.

9 MR DONALDSON: Yes. One or two people made that allegation

10 that in fact an attempt was made to turn them.

11 THE CHAIRMAN: You see, if one looks at C284, there you have

12 a senior officer and a Special Branch officer, no

13 dispute, as I understand it, that they didn't interview

14 or meet C284. The only purpose could have been an

15 attempt to turn the suspect. Isn't that right?

16 MR DONALDSON: Well, that may be and I don't think that was

17 accepted by the officers concerned. The allegation was

18 made, but I suppose one can look at that two ways. If

19 they did attempt to turn him, there wouldn't necessarily

20 be anything wrong with that.

21 THE CHAIRMAN: No, no, I said a laudable --

22 MR DONALDSON: I follow that, sir. I'm just following

23 through the argument here. There would be no harm in

24 that. So, therefore, why would they deny it if there

25 was not some truth in it? And I think the only reason




1 they would deny it would be because it didn't happen.

2 So, therefore, that's the situation one is left with

3 and, again, I don't think with respect that you can draw

4 any adverse conclusion from that.


6 SIR ANTHONY BURDEN: Just one comment, Mr Donaldson, if

7 I may, before we break. Are you intending to deal with

8 the Trevor McKeown evidence? It is in your submission.

9 MR DONALDSON: I will if necessary, sir.

10 SIR ANTHONY BURDEN: Can I leave you with some homework?

11 MR DONALDSON: I might deal with it tomorrow.

12 SIR ANTHONY BURDEN: Let me give you the point now and it

13 will allow you to consider it.


15 SIR ANTHONY BURDEN: You made reference to the Lurgan Nine,

16 all the common features between those nine individuals.

17 In your submission, you have suggested to the Panel how

18 we should regard the Trevor McKeown evidence, but

19 I would like, if I may, to return to the substance of

20 the evidence and ask your views on what inferences can

21 be drawn from what we have read and, indeed, your

22 comments to us in your submission.

23 The difficulty for me with the evidence of

24 Trevor McKeown -- and he claims, of course, that during

25 interview distasteful comments were made about




1 Rosemary Nelson suggesting that he should have killed

2 Rosemary Nelson and not his victim. The difficulty for

3 me here is that Mr McKeown's profile does not fit the

4 profile of the Lurgan Nine, as you have described it.

5 He is not a Republican terrorist suspect, he would not

6 have associated with the other complainants, he did not

7 use Rosemary Nelson as his solicitor, perhaps weakening

8 any suggestion that he was part of a conspiracy to

9 discredit the RUC.

10 The only common factor as I see it is that during

11 interview he would have been seen and interviewed by

12 some common officers to at least four of those

13 interviewed from, using your terms, the Lurgan Nine

14 group.


16 SIR ANTHONY BURDEN: At your timing, when you choose to deal

17 with it, would you like to comment on what inferences we

18 can draw from what I have just described to you there.

19 MR DONALDSON: I will certainly do that, sir. I can say

20 just immediately so far as Trevor McKeown is concerned

21 that you can draw no inferences whatsoever. I'll deal

22 with that in detail.

23 SIR ANTHONY BURDEN: If you would, please.

24 THE CHAIRMAN: We will adjourn now until about seven minutes

25 past four.




1 (3.53 pm)

2 (Short break)

3 (4.07 pm)

4 THE CHAIRMAN: Yes, Mr Donaldson?

5 MR DONALDSON: I'm just developing the case of Barry Toman

6 a little further. It is really to illustrate how the

7 procedure was used in order to investigate the

8 complaint.

9 Now, in relation to the allegations made against him

10 by various terrorist suspects, this officer -- that is

11 the police officer we were speaking about -- I think

12 that's P121 -- he was interviewed firstly by P146 from

13 Complaints and Discipline and later by the Mulvihill

14 team after a certificate of satisfaction had been

15 refused by ICPC, arising from some dissatisfaction with

16 P146.

17 Subsequently, therefore, this witness was

18 interviewed by the Mulvihill team, to whom he strongly

19 affirmed the falsity of the Toman allegations as well as

20 the allegations by others.

21 Complaints had been made by ICPC against Chief

22 Inspector P146, who had conducted a detailed

23 investigation into the complaints by or on behalf of

24 various terrorist suspect detainees, including Mr Toman.

25 After a careful review, Commander Mulvihill vindicated




1 P146 and stated as follows:

2 "Ultimately I do not accept that Chief

3 Inspector P146 failed in how he dealt with the attitude

4 of suspect officers. In general terms, as already

5 outlined, he was diligent and robust when necessary. I

6 am convinced that he did his best, worked industriously

7 and that any perception that he might somehow have

8 failed was wholly unintentional on his part.

9 "P146 is clearly a strong minded and principled man

10 imbued with a strong sense of duty. His desire to keep

11 on top of a heavy workload coupled with the inevitable

12 frustrations which occur if potential witnesses do not

13 come forward might well have led to an impression being

14 created which caused some concern to the ICPC

15 supervisor.

16 "The style of his interviewing technique was

17 generally robust and determined, clearly displaying

18 a intention to get to the truth. It is easy on

19 reflection and with the benefit of hindsight to say how

20 an interview might have been conducted better.

21 I consider his general performance to have been

22 satisfactory."

23 There had been an allegation by Miss McNally that

24 P121 had attended for interview by herself and P146

25 smelling of alcohol. You will recollect that this




1 particular incident was blown up out of all proportion

2 because later there is a reference in one of the NGO

3 letters -- I just want put my hand on it at the

4 moment -- to drunken officers arriving for interview.

5 That's how the matter was developed.

6 Mulvihill disposed of the matter in the following

7 words:

8 "In the ICPC letter written two days after the

9 event, no mention whatsoever was made of this issue.

10 P146 has no recollection of any officer attending for

11 interview smelling of alcohol and Miss McNally's

12 personal notes make no reference to an officer smelling

13 of alcohol. I have discussed this aspect with her and

14 she recognised the significance of this oversight on her

15 part. The chronological note of events supplied by her

16 for me refers to P121 as being the officer concerned.

17 Whilst I have no doubt that this is Miss McNally's

18 genuine recollection, she did not raise that issue with

19 P146 during or after the relevant interviews or in the

20 letter to the RUC two days later. It is only raised by

21 ICPC three months later. The time for raising issues of

22 concern is at the time of occurrence. The fact that

23 this was not done provides no opportunity for the RUC to

24 address the matter or to prove or disprove the

25 observations. Therefore, such a contention can never be




1 satisfactorily resolved."

2 On the general issue of concerns raised by ICPC

3 about complaints and discipline investigations,

4 Mulvihill, in pursuance of his remit as contained in the

5 Chief Constable's letter of 13 August 1998, reported:

6 "This series of enquiries has been fraught as

7 a consequence of varying perceptions, differing

8 interpretations, communication and administrative

9 hiccups and problematic professional relationships,

10 which I believe led to the creation of something aligned

11 to an entirely false conspiracy theory notion. Such

12 a conspiracy theory relates to a potential perception by

13 ICPC that either, (i) the RUC personnel involved in the

14 criminal investigation of the various persons arrested

15 and suspected of being involved in terrorist offences

16 were conspiring together to pervert the course of

17 justice, or (ii) the RUC complaint investigators were

18 conspiring with those that they were investigating to

19 pervert the course of justice by deliberately ensuring

20 the facts relating to complaint were not discovered."

21 And he says:

22 "In the event that either theory ever did exist,

23 I find such a notion to be wholly unfounded."

24 Although at this stage of our submissions we are

25 dealing primarily with the allegations and complaints




1 made by Barry Toman, we felt it nevertheless appropriate

2 to set out these matters in a little more detail as they

3 have a wider application not confined to Barry Toman's

4 complaints.

5 The other interviewing officers resolutely and

6 convincingly, we submit, rejected the allegations and

7 contended that they were false and maliciously

8 conceived. This relates generally to the whole evidence

9 of these officers. Again, you have seen these officers

10 as a Panel and you are, dare I say, mature and

11 experienced people, able to form views about witnesses

12 giving evidence.

13 We, therefore, confidently invite the Tribunal to

14 dismiss completely the allegations and complaints made

15 by Barry Toman as being false and without foundation.

16 Reference has already been made to the investigation

17 carried out by Mulvihill following a serious dispute

18 which arose between the ICPC and the Chief Constable

19 when a certificate of satisfaction had been withheld.

20 Because ICPC was not satisfied with an investigation

21 carried out with P146, a chief inspector in Complaints

22 and Discipline -- and I have already referred to the

23 Terms of Reference about this.

24 An issue may arise as to the justification, if any,

25 for the concerns expressed by ICPC. Whilst it is very




1 much a matter for the Inquiry, it is felt that the

2 dispute, such as it was, arose because of personality

3 conflicts and not for any reasons which assist the

4 Inquiry in the realisation of its remit. The whole

5 dispute was, we submit, an unfortunate and unnecessary

6 digression the resolution of which is unlikely to assist

7 this Inquiry.

8 One thing I would say about is about it is this: It

9 does demonstrate that ICPC was doing its job. They were

10 not really riding along without question or without

11 dispute; they were prepared to exercise their

12 independent judgment about these matters. And you will

13 recollect too that in the appointment of

14 Commander Mulvihill, I think it was Miss McNally and

15 another female who went to interview him to meet him at

16 an airport and were quite satisfied that

17 Commander Mulvihill was the man for the job. They

18 approved of him.

19 Now, he was given a very wide remit in respect of

20 a number of topics, and I just want to run through some

21 of them fairly quickly. It is really a digression in

22 a sense, but I have got to deal with it some time.

23 The first, which we will call Mulvihill 1, concerned

24 the investigation of the complaint made by the Lawyers

25 Alliance for Justice in Ireland -- LAJI, as we will call




1 them -- on behalf of Mrs Nelson against an officer of

2 the RUC. This part of the Mulvihill investigation

3 concerned complaints made by Anthony Simmons,

4 Colm Toman, Barry Toman and C138. Barry Toman was of

5 course one of this group of four and a complaint had

6 been formally initiated by Edmund Lynch of LAJI in

7 a letter to Sir Louis Blom-Cooper, in a letter of

8 13 March 1997, in which he asked that the information

9 contained in his letter would be passed to the Attorney

10 General for:

11 "... appropriate criminal investigation."

12 He alleged that death threats had been made against

13 Mrs Nelson and that these had been instigated by an RUC

14 detective. It was also alleged that the threats had

15 been communicated to her through several of her clients

16 during prisoner interrogations at Gough Barracks in

17 various states.

18 That was the full extent of the allegation at that

19 stage. Now, it was stated -- and we think it is

20 probably incorrect -- that Mr Lynch could not have

21 received the written comments at that stage because no

22 written complaints were available from these four

23 people -- we might call them the Mulvihill Four -- no

24 written complaints were available from these people at

25 this stage. There were no written complaints from any




1 of these people until after June of 1997 because

2 Mulvihill says that Mr Lynch based his complaint on the

3 written comments of four individuals who had been

4 detained at Gough Barracks. Now, that is not correct.

5 It wasn't pursued with him at his evidence. However,

6 the Mulvihill team carried out extremely intensive and

7 careful investigations, and Judge Cory at

8 paragraph 4.143 of his report commented:

9 "It is apparent that considerable resources were

10 devoted to the investigation of Rosemary Nelson's formal

11 complaints against the RUC."

12 Now, clearly this comment was intended to include

13 the investigation of the LAJI complaint. It is notable

14 that in relation to the allegations made by these four

15 named individuals, neither Colm nor Barry Toman were

16 prepared to meet and pursue their allegations with the

17 Mulvihill team. The Mulvihill team interviewed all the

18 interviewing detectives concerned.

19 Another point about this business of the

20 investigation is this: that all of the police officers,

21 without exception, attended, when required to do so, for

22 interview by Commander Mulvihill. They were under no

23 legal obligation to do so. They could have said, "No,

24 we are not going to play". But they all did and they

25 all appeared and made statements and were questioned in




1 detail and sometimes, again, quite vigorously, by

2 Commander Mulvihill and his team.

3 Commander Mulvihill made the following observations

4 and reached the following conclusions. Firstly of

5 interest is the delay in registering these complaints

6 and the cooperation of the witnesses at the subsequent

7 enquiries. Secondly, although some of the witnesses had

8 allegedly expressed their concerns during consultations

9 with their solicitor whilst in detention, there is no

10 statement of an early complaint even though each of them

11 on release was specifically asked if he had any

12 complaints regarding their detention. And Mr C138 even

13 signed documentation to that effect.

14 Thirdly, if the officers adopted a course of action

15 as detailed in the allegations that make up the

16 complaint, as interview strategy it failed miserably.

17 Now, coming back to a question from the Chairman on that

18 point, about police using verbal abuse or any other kind

19 of wrongdoing, these were all experienced detectives.

20 They would have known perfectly well what would have

21 succeeded and what would not have succeeded in breaking,

22 if you like, a suspect being interviewed. And that was

23 one thing that was most certainly not going to work, not

24 that they would have been prepared to try it. And,

25 therefore, we would submit that it is highly unlikely




1 that they would have used such a foolish tactic, which

2 was bound to fail with people like this, and the

3 evidence was given that they were trained in

4 anti-interrogation techniques. They were not softies,

5 they were not pushovers, they were not going to break

6 down and make confessions, but the police had their job

7 to do and they had to interview as well as they could.

8 And of course, I think it is right to say too that

9 in respect of the Lurgan Nine, it is of the utmost

10 significance -- and I think I'm right in saying this --

11 that not one of the Lurgan Nine actively made

12 a complaint to his solicitor while he was in detention.

13 The fourth point made by Commander Mulvihill is that

14 despite having been given numerous opportunities to

15 attend for interview, neither Colin nor Barry Toman kept

16 appointments to attend for interview, offering no

17 explanation. The only evidence they have provided are

18 unsigned or undated typed statements given to

19 Paul Mageean. It is one of these statements from

20 Barry Toman that contains the only comment that could

21 amount to a death threat, ie:

22 "Tell Rosemary she is going to die too."

23 The fifth point is the complaints appear to be

24 initiated -- I say initiated by Mrs Nelson. She is the

25 one who brought it to attention, who had approached the




1 witnesses many months after the event to provide

2 statements. Again, if she was so concerned, it would be

3 reasonable to assume that as a solicitor she would have

4 appreciated the significance and importance of

5 information being recorded as soon as reasonably

6 practicable. For the weight of its subsequent

7 credibility, why did she delay for so many months, March

8 to October? Again, these are Mr Mulvihill's views.

9 And the final point we make -- it is not the final

10 point -- the next point is the inability of the

11 witnesses to attribute specific comment to specific

12 officers maybe due to the delay in recording the

13 statements.

14 Point number 7, despite Mr Lynch's comment there is

15 no independent corroborative evidence to support the

16 allegations, the subject of his complaint.

17 Number 8: The police officers denied the

18 allegations and were generally of the view that this was

19 a concerted attempt to undermine the professionalism and

20 credibility of the RUC.

21 Number 8: complaints had a detrimental effect.

22 Number 9: the alleged comments have an element of school

23 playground or adolescent name calling about them. And

24 number 10: as an interview technique, not only would

25 this type of alleged questioning be highly




1 unprofessional, it would also be counter-productive and

2 unlikely to elicit any type of confession.

3 That is just the very point we would have made, that

4 submission, quite independent of Mr Mulvihill, that that

5 is the situation.

6 However one considers the allegations made by

7 Barry Toman, either in isolation from or collectively

8 with the allegations made by others in the group of four

9 or, indeed, with all the Lurgan Nine, it is

10 inconceivable that any conclusion could be reached which

11 could be adverse to or justifiably critical of the

12 interviewing detectives. It is our submission that this

13 Inquiry should not hesitate in declaring the

14 interviewing officers innocent of any misconduct.

15 You see, I think one of the officers, I think, said

16 to the Panel that he wanted to be clear. He didn't want

17 this hanging over his head. He is a man now retired

18 from the police and he didn't want to go away with some

19 allegation remaining hanging over his head which hasn't

20 been dealt with. The allegation was made, he has denied

21 it, and he says, "Look, make a finding for me, tell me

22 I'm right or tell me I'm wrong". In reference to

23 various documents which Judge Cory received from

24 Sir Ronnie Flanagan, he stated:

25 "The material appears to confirm the necessity of




1 holding a public inquiry. Nothing less will serve as

2 a forum for hearing all the witnesses and making the

3 requisite findings of fact on all those issues where

4 there appears to be a conflict in the evidence or a

5 difference of opinion."

6 THE CHAIRMAN: Let's say about this that the general picture

7 given by the interviewing officers was that they had no

8 adverse view against Rosemary Nelson, they were unaware

9 of the suggestion that she had crossed the line and was

10 a supporter of PIRA, they didn't seem to be aware of the

11 alleged affair. That almost might, some people think,

12 be a party piece, it's so out of line with all the other

13 evidence from the --

14 MR DONALDSON: Out of line with what?

15 THE CHAIRMAN: All the senior Special Branch officers.

16 MR DONALDSON: Well, the answer to that is very easy: the

17 senior Special Branch officers weren't routing it

18 around, this particular kind of information. They have

19 said that. And in fact it is quite significant, for

20 example, that Detective Inspector Monteith, who was the

21 head of the CID in Lurgan police station, he said quite

22 explicitly -- and almost got cross about it -- that it

23 was suggested to him that he had heard about this rumour

24 of the affair. He said, "Look, I heard nothing about

25 it. I knew nothing about that rumour or information or




1 anything else." And of course, in relation to the

2 Special Branch officers, that's a very different area

3 altogether now.

4 I will come to deal with intelligence, but I have

5 said at this stage, sir, that their information was held

6 on a need to know basis. They go to the CID in Lurgan

7 and say, "There is an affair, did you know about that?"

8 Or there is something else, "She has crossed the line".

9 There is no need to tell them that. In fact, it is

10 notable that some Special Branch officers, more junior

11 officers, didn't even know that, they weren't aware of

12 it.

13 I know you have asked me the question in fairness

14 and I respect that, but I don't think, sir, with respect

15 that there is any evidence whatsoever to indicate that

16 these CID officers were aware of these matters. It was

17 far from being a party piece.

18 If an officer had heard, why shouldn't he say so?

19 It wasn't going to affect him. Let's say one of the CID

20 officers had heard that there was some talk about an

21 affair. So what? That wasn't going to affect him in

22 doing his duty. It wasn't going to affect him in

23 questioning suspects. So I don't think, sir, with

24 respect, that the Inquiry should not take that into

25 account. There is no evidence or no reason why one




1 should start guessing or speculating as to what some

2 officers might have known.

3 I do accept that there had been, or certainly one

4 would expect there to have been, some talk around the

5 town, but bear this in mind: police were not talking to

6 people in the town. There was really no contact between

7 the police and, for example, the residents of Kilwilke

8 Estate. There was a great gulf fixed between the two

9 which they didn't cross.

10 You see, Mulvihill --

11 THE CHAIRMAN: Dealing with the allegation that Mrs Nelson

12 was complicit in false alibis, surely that was something

13 that the CID in Lurgan investigating grave crime

14 involving her clients should have been made aware of,

15 shouldn't they?

16 MR DONALDSON: Well --

17 THE CHAIRMAN: If they weren't, why weren't they?

18 MR DONALDSON: I don't think so, for this reason: the

19 Special Branch officers, I think, gave evidence about

20 that, sir, and their response to that -- and I think it

21 was Chris Albiston mainly who dealt with that, who had

22 formed a certain view of what she was doing, that she

23 had crossed the line and was participating in some

24 unprofessional conduct relating to, for example, the

25 false alibi point. And why he felt -- he felt that she




1 was committing a criminal offence -- I think the point

2 there was how can -- you can't hand that over really to

3 the CID because the CID -- because he -- he said it was

4 a balancing exercise effectively. If you hand over to

5 the CID, you are going to then have to use your sources,

6 you are going to risk the identification of your

7 sources. It is better to let the matter rest, let's

8 just carry on, we want to protect our sources. One can

9 well understand that. That's really the answer to that

10 point.

11 Mr Mulvihill was asked if he had any impression that

12 members of the RUC were not well disposed towards

13 defence lawyers generally or Mrs Nelson, and he

14 responded as follows:

15 "I think there was a prevailing perception that some

16 solicitors were extremely sympathetic to some of the

17 suspect terrorist prisoners and that wasn't well

18 received by some RUC officers. But there was never any

19 suggestion that there was open threats -- I think it

20 should be were open threats -- or open hostility

21 displayed towards any member of the legal profession."

22 Now, I think one should bear this in mind about

23 Commander Mulvihill -- and it cannot be overemphasised:

24 Commander Mulvihill was not just a blow-in for a few

25 days like some American lawyers or other NGO people.




1 Commander Mulvihill was a very experienced and

2 professional senior officer who came here for

3 a considerable period of time, and he made it his

4 business to conduct a thorough going investigation.

5 And, therefore, I think regard should be had to his

6 findings, special regard should be had to his findings

7 because he was a man who can be regarded as completely

8 independent. Nobody ever suggested to him that he was

9 playing both ends against the middle or taking some kind

10 of a particular position favourable to the police. It

11 was never suggested to him, and one could never assume

12 that. One has to have respect for his professionalism

13 and the professionalism of his team in carrying out this

14 particular enquiry.

15 DAME VALERIE STRACHAN: Could I just ask you on that very

16 point, you quote him as saying:

17 "I think there was a prevailing perception that some

18 solicitors were extremely sympathetic to some of the

19 suspect terrorist prisoners and that wasn't well

20 received by some RUC officers."

21 Now, that's a point of view I have no difficulty in

22 understanding, but actually that didn't emerge from the

23 police officers that we saw. More or less to a man they

24 said, "We regarded her as a solicitor doing her job. I

25 had no issue with Rosemary Nelson." It is a difference




1 of emphasis, would you agree?

2 MR DONALDSON: Yes, I'm just looking back at that again,

3 Dame Valerie, to remind myself of what he was saying.

4 Yes, he did put it this way. He said:

5 "I think there was -- I think there was a prevailing

6 perception that some solicitors were extremely

7 sympathetic to some of the suspect terrorist prisoners

8 and that wasn't well received by some RUC officers."

9 So he has formed a subjective kind of view. I don't

10 think that was pursued in the examination of him. I

11 can't really answer that. I can't add to that any more

12 other than to say that that was a perception which he

13 had, which he thought there was. But the significant

14 bit is that there was never any suggestion of threats,

15 open threats, or open hostility.

16 It is quite right the police officers concerned --

17 they said they had a positive -- they did not have

18 a negative attitude towards Rosemary Nelson. Now,

19 Mulvihill -- he is asked -- that's with reference to

20 members of the RUC. I'm not sure whether it necessarily

21 relates to the interviewing officers or to a wider

22 perspective or not. I really don't know, and he wasn't

23 asked about that. But I don't feel, with respect, that

24 the Tribunal should draw any adverse inference from that

25 about attitudes towards Rosemary Nelson.




1 I know this is something that has been raised again

2 about this business of perceptions about

3 Rosemary Nelson, negative attitudes, that affected how

4 they dealt with Rosemary Nelson, that affected -- and I

5 will come to it later about how threat assessments were

6 considered. But because there was a feeling,

7 a suggestion, I think, that, "Oh, it is Rosemary Nelson,

8 we will not bother too much with her -- and there was

9 a very unfortunate reference, I think, made in the

10 family's submissions who say that she was regarded as

11 something of a low life. A very abhorrent remark to

12 make in those circumstances, and we will deal with that

13 later. But I don't think, with respect, Dame Valerie,

14 to answer your point, that any particular adverse

15 inference should be drawn from that comment from

16 Commander Mulvihill. In fact, it does go to show the

17 extent to which -- he would express views that were

18 impartial and balanced. I think the important word is

19 "balanced" in what he said.

20 DAME VALERIE STRACHAN: I don't think I was questioning his

21 independence.

22 MR DONALDSON: No, of course not.

23 DAME VALERIE STRACHAN: He seemed to me to be saying it as

24 he saw it, as it were, saying what he had perceived.

25 MR DONALDSON: I understand, yes.




1 DAME VALERIE STRACHAN: All I was drawing attention to was

2 the difference between what he had perceived and the

3 impression which the police officers sought to give us

4 when they came and gave evidence to us.

5 MR DONALDSON: I think my earlier point -- it is balancing

6 the whole comment, not just taking part of it. It is

7 the second part of it. He said there was no suggestion

8 of open hostility displayed towards her. So I think one

9 has got to take it in the round, and I do respectfully

10 accept the point. I think that is my answer to it.

11 Now, P228 was involved in nine of the 19 interviews

12 with Barry Toman. He normally interviewed with P162.

13 The latter was not called as a witness for medical

14 reasons and P228 strongly disputed the allegations made

15 by Toman. He expressed surprise on being served with

16 Form 17/3 about eight and a half months later. This was

17 the first and only complaint ever made against him.

18 Then I was going to come next to quite a lengthy

19 question asked by Sir Anthony Burden and I think we have

20 dealt with it in part already. I will, however, just

21 refer to the question. The question was:

22 "We face a situation where we have read and heard

23 from in total nine people, not always connected by the

24 offences for which they were arrested, not always

25 arrested together and not always arrested at the same




1 time and that is important. But there is a thread in

2 the allegations that these people have made concerning

3 comments made about Rosemary Nelson in that they were

4 comments of a personal nature, attacks on her. Either

5 she was connected with the paramilitaries or

6 allegations, comments made about her personal

7 appearance. Can you offer some help to us, please?

8 Looking at that desperate situation, how do you feel

9 that they came to make similar complaints if they were

10 not arrested at the same time, not in connection with

11 the same offences? If that is not a common thread,

12 what is?"

13 And the answer then was a series of points made

14 after that. The answer to:

15 "In connection with the Provisional IRA," seems to

16 be a question mark.

17 "Question: Can you expand on that?

18 "Answer: Like I say, I believe that it was part of

19 an orchestrated campaign by that organisation towards

20 us, a service in general. That is what I think the

21 common thread is.

22 "Question: So it was orchestrated by them in

23 preparation for any occasion when they may be arrested

24 to be used?

25 "Answer: There is one explanation, but I think it




1 was part of a wider and strategic ambition to

2 disassemble the RUC in general, and that effectively

3 happened. As I said, the other issue was the beginning

4 of tape recording of the holding centre interviews."

5 My comment about that it is apparent that

6 Sir Anthony had in mind the matter of the possible

7 consistency of the allegations made by the Lurgan Nine

8 and, indeed, as we have already conceded, many of the

9 allegations were quite similar in nature and related to

10 insulting and threatening remarks made about

11 Rosemary Nelson.

12 The point would be well made if these making the

13 allegations had not known each other and were arrested

14 at different times, and had made their complaints

15 promptly and had no opportunity of collaboratting with

16 each other, either before or after arrest, and

17 especially before registering a complaint. This, of

18 course, was not the case as the evidence has since

19 revealed.

20 It is now apparent that the Lurgan Nine, or

21 virtually all of them, came from the same part of

22 Lurgan, the Kilwilke Estate. They were probably

23 concerned in PIRA activities. They were clients of

24 Rosemary Nelson, they obviously knew each other well.

25 The majority did not make any complaints until well




1 after their release from the holding centre. In

2 particular, Barry Toman and C138 did not make any

3 allegations when leaving the police station -- see their

4 custody records. In fact, they said they had no

5 complaints to make.

6 We did submit some questions along these lines but I

7 am afraid some of them were not asked. I think the

8 answer, though, to Sir Anthony's question, that he

9 didn't come out as clearly as one would have hoped, but

10 one of the interesting questions was:

11 "So it was orchestrated by them in preparation for

12 any occasion when they may be arrested to be used?"

13 Now, the point is this: that didn't have to happen

14 because we now know that these allegations were not made

15 for a very long time so that they had plenty of time to

16 collaborate in preparing these allegations. And in

17 relation to some of the people -- there were one or two

18 of them who were dealt with some time later, after the

19 summer of 1997, when they did make similar kinds of

20 allegations. But remember this: by that time those

21 other complainants, who were also clients of

22 Rosemary Nelson's and who knew the other people who made

23 the complaints, knew exactly what the score was and they

24 knew exactly what they might want to say. And,

25 therefore, there is this similarity, we say, in the




1 nature of the allegations.

2 Now, as I say, I'm not going to go through the

3 remainder of the Lurgan Nine, but I'm prepared to field

4 any questions in relation to that. But our general

5 submission is this: that in relation to all of the

6 Lurgan Nine, their allegations and complaints should be

7 disregarded completely.

8 THE CHAIRMAN: By some remarkable coincidence their

9 allegations reflected what you called -- knew the

10 score -- reflected what Rosemary Nelson herself was

11 saying in October 1996 and February 1997.

12 MR DONALDSON: Yes, I think that those letters -- and I'm

13 going to have a fresh look at those.

14 THE CHAIRMAN: They aren't letters. I think they were

15 telephone calls which were noted.

16 MR DONALDSON: Yes. Perhaps, sir, can you remind me --

17 THE CHAIRMAN: Yes, the dates. You might like to look at

18 them overnight.


20 THE CHAIRMAN: They were 3 October 1996 and

21 18 February 1997.

22 MR DONALDSON: To whom were they made, sir? Perhaps I

23 shouldn't ask that?

24 THE CHAIRMAN: They were both made to somebody at British

25 Irish Rights Watch. Whether it was Jane Winter or one




1 of her staff, it is not certain according to my

2 recollection.

3 MR DONALDSON: Thank you, sir, for reminding me of that. We

4 will certainly look at that.

5 THE CHAIRMAN: If that could be done.


7 THE CHAIRMAN: We will break off now, thank you,

8 Mr Donaldson, until quarter past 10 in the morning.

9 MR DONALDSON: Yes, sir.

10 THE CHAIRMAN: Thank you.

11 (4.47 pm)

12 (The Inquiry adjourned until 10.15 am the following day)
















1 I N D E X

Closing submissions by MR DONALDSON ............. 1