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Full Hearings

Hearing: 29th April 2009, day 122

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

on Wednesday, 29 April 2009
commencing at 10.15 am

Day 122









1 Wednesday, 29 April 2009

2 (10.15 am)

3 Closing submissions by MR BEER

4 THE CHAIRMAN: Yes, Mr Beer?

5 MR BEER: Thank you, sir. If it assists the Panel and Full

6 Participants, these submissions, I estimate, allowing

7 a reasonable time to answer the questions of the Panel,

8 will take until approximately lunchtime. That obviously

9 depends on the number and nature of the questions and my

10 ability to answer them.

11 I will endeavour to assist you --

12 THE CHAIRMAN: Mr Beer, I'm sure you will have no difficulty

13 about that.

14 MR BEER: I have come armed with a knowledgeable junior and

15 three lay clients and professional client, so any

16 difficulties yesterday hopefully won't be repeated

17 today --


19 MR BEER: -- but no absolute promise is made.

20 These oral submissions are structured by reference

21 to those of the questions set out in the Inquiry's

22 letter of 22 April this year that directly concern the

23 NIO. There are, on our estimation, ten such questions.

24 Like the NIO's written submissions, it not intended to

25 touch upon issues or evidence that does not concern the





1 position of the NIO in some way. The NIO's submissions

2 on these ten questions incorporate the NIO's replies to

3 the written submissions made by other Full Participants,

4 in particular those of the families, which are obviously

5 the written submissions that most concern the NIO.

6 The ten questions are as follows:

7 Question 1: were NIO officials overly differential

8 to RUC sensitivities about operational substance?

9 Question 2: were NIO officials sufficiently

10 persistent in pressing the RUC and the

11 Command Secretariat in particular for full and thorough

12 replies to their questions?

13 Question 3: to what extent was the approach of the

14 RUC, but in this case in particular the NIO, to the

15 alleged threats to Rosemary Nelson coloured by the

16 perception that those matters were being investigated

17 and were to be treated as complaints?

18 Question 4: to what extent was the approach of

19 officials at the NIO involved in the consideration of

20 the threat to Rosemary Nelson coloured by negative

21 perceptions held by them of Rosemary Nelson or those who

22 made representations on Rosemary Nelson's behalf?

23 Question 5: was the system for the assessment of

24 threats itself flawed?

25 Question 6: was the NIO sufficiently challenging or





1 critical of the threat assessment process itself and of

2 the RUC's threat assessments and advice?

3 Question 7: what is the relevance and significance

4 of the suggestions made in chapter 9 of the NIO's

5 submissions as to the allegedly conflicting behaviour of

6 Rosemary Nelson in this context?

7 Question 8: was any advice about her security

8 offered to Rosemary Nelson at any relevant time; were

9 any other steps taken to reduce the risks to her safety?

10 Question 9: would Rosemary Nelson have accepted any

11 such advice or security measures had they been offered

12 to her and would she have followed any advice?

13 And question 10: should the Panel make

14 recommendations in relation to any matter which it has

15 considered and, if so, what recommendations?

16 Before addressing the ten questions that I have

17 listed, the NIO notes that in chapter 2 of the family's

18 submissions -- for the record I don't ask for it to be

19 brought up -- that appears at RNI-925-014 to

20 RNI-925-032 -- the families make extensive submissions

21 as to the alleged conditions in the holding centres, the

22 legislation relating to such holding centres, legal

23 visits to detainees in holding centres and the reform of

24 the holding centres. In the course of those

25 submissions, the families suggest that the response of





1 Government generally to reform was prosaic,

2 unconvincing, inadequate, futile, ambulatory, reluctant,

3 resistant, unjustifiable, neither robust nor expeditious

4 enough and a decade too late.

5 The submissions that purport to support those

6 suggestions are in the most part based on assertions for

7 which no source is credited in the submissions or, where

8 a source is given, it is not one where the relevant

9 document has been disclosed in the course of the

10 Inquiry, not one where it has been referred to in the

11 course of the evidence of the Inquiry and is not one

12 which has been shown to any relevant witness in the

13 course of the Inquiry.

14 An example falling within this category is as

15 follows. If we could have up RNI-925-024, please

16 (displayed), and highlight paragraph 2.32. It is the

17 last four lines or so from the bottom:

18 "In many respects, the appointment of Sir Louis as

19 the Independent Commissioner on Holding Centres was a

20 tentative step in the reform direction, but really it

21 was the earlier criticisms from the European Committee

22 which had stirred the British Government into action."

23 As to that assertion -- and this is just an

24 example -- the NIO would ask rhetorically which

25 criticisms are referred to. When were they made? In





1 what reports or reports? What action was the British

2 Government "stirred into"? When was it stirred and how

3 was it known? On what evidence is the causal link

4 between the criticisms and the alleged stirring based

5 and what evidence has the Inquiry heard about any of

6 those things? The answer is: none.

7 Examples falling within the category of a source

8 being cited but the document not having been provided

9 appear in paragraphs 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9,

10 2.12, 2.17, 2.18, 2.32, 2.35, 2.36, 2.37, 2.38, 2.39,

11 2.40 to 2.44 and 2.45 of the submissions.

12 The NIO assumes that the Inquiry does not regard the

13 issue of the general reform of the holding centres as

14 a matter within its Terms of Reference. This is because

15 it is not an issue expressly identified within the

16 Inquiry's List of Issues. No such issue was included in

17 Leading Counsel to the Inquiry's opening speech and the

18 Inquiry hasn't distributed to Full Participants the

19 relevant contemporaneous documentary material that

20 continues to exist as to the reasons for reform, the

21 reasons for the pace of reform, the political and other

22 factors that were or were not taken into account in

23 making decisions in this regard, the relationship

24 between the development of policy and the decisions of

25 the High Court and Court of Appeal in Northern Ireland





1 and of the House of Lords, some of which decisions have

2 been quoted by the families in their submissions, and

3 lastly the Inquiry has not sought and has not received

4 any evidence from witnesses in the form of relevant

5 decision-makers, including the politicians and the

6 relevant Chief Constable of the day.

7 So in those circumstances the NIO would respectfully

8 submit that it would not be right, indeed it would be

9 unfair, for the Inquiry to reach conclusions on the

10 basis of submissions which do not provide evidence in

11 support of the suggestions made, where documents are

12 referred to but which have not been disclosed and where

13 the documents referred to inevitably paint only part of

14 the full picture and, lastly, where relevant witnesses

15 have not been asked to address the issue in evidence.

16 If the Inquiry does wish to address that issue,

17 then, with respect, we say that it would need to call

18 for further disclosure from relevant parties and adduce

19 further oral evidence in further sitting days.

20 So with that caveat, can I turn to the questions

21 that I set out?


23 MR BEER: Question 1: were NIO officials overly deferential

24 to RUC sensitivities about operational independence.

25 Whilst the Inquiry's letter of 22 September rightly





1 emphasised that too much should not be read into the

2 manner and terms in which the issues were stated in that

3 letter -- it was a guide only -- the question has

4 nonetheless within it two pregnant statements that are

5 important. First, that it would be right for the NIO to

6 be deferential to the operational independence of the

7 police, but that it should not be overly deferential.

8 And second, that the issue is whether the NIO was

9 deferential to sensitivities within the RUC as to its

10 operational independence.

11 As to the latter point, the NIO respectfully submits

12 that the issue should be framed as follows: did the NIO

13 properly respect the operational independence of the

14 RUC? In our submission, it is not a question of being

15 deferential to the RUC's sensitivities as to its

16 operational independence. The NIO was not deferential

17 because the RUC was sensitive about its own

18 independence. The NIO properly respected a basic

19 precept of the constitutional settlement of the

20 United Kingdom. It is accordingly important to

21 establish, albeit briefly, that basic precept first, its

22 extent, the reasons for it, before judging whether the

23 NIO paid appropriate or undue respect for it in the

24 circumstances of this case.

25 The issue of the separation of powers and the





1 independence of the police from the executive within

2 that separation of powers is a constitutional

3 convention. The nature and extent of it is

4 a controversial issue for constitutional lawyers and

5 academics and this isn't meant to be a contribution to

6 that debate.

7 The controversy in part derives from the fact that

8 two principles of the rule of law here point in opposite

9 directions. First, the idea that the police are a law

10 unto themselves is unacceptable in any democracy

11 especially one that prides itself on the restraint of

12 the use of coercive state-sponsored force and powers and

13 accountability for the use of such force and powers.

14 But second, pointing in the other direction, the idea

15 that the police are directed by the government of the

16 day raises proper concerns about improper partisanship

17 influencing or appearing to influence the machinery of

18 justice.

19 There is no legislative definition of where the

20 balance lies but rather a convention that has evolved

21 over the years with judges filling in the gaps left by

22 Parliament. The most detailed exposition that we can

23 find of the convention came in the Royal Commission on

24 the Police of 1962. When in these submissions I refer

25 to some document, I'm not going to provide them to the





1 Panel and the Full Participants now, but instead, after

2 the submissions, if it is convenient for the Panel, to

3 provide a very small pack. There are ten such.

4 THE CHAIRMAN: Thank you very much.

5 MR BEER: So the most detailed exposition, the Royal

6 Commission on the Police of 1962, which argued that

7 chief constables should be given complete immunity from

8 political influence in decisions to apply the law, for

9 example, they cited in deciding whether to initiate

10 a criminal investigation or not, but more widely the

11 report argued that a chief constable should have

12 considerable room for discretion in such areas as the

13 deployment of police resources.

14 Now, this understanding of operational independence

15 was later widened by the then Master of the Rolls,

16 Lord Denning, who in the R v Commissioner of Police of

17 the Metropolis, ex parte Blackburn, 1966, 1, Weekly Law

18 Reports 960 -- it is the second document that I will

19 provide -- said in the context of

20 the Metropolitan Police Service -- I'm afraid this is a

21 slightly long quote but it's quite important:

22 "The office of the Commissioner of Police within the

23 Metropolis dates back to 1829 when Sir Robert Peel

24 introduced his disciplined force. The Commissioner was

25 a justice of the peace specially appointed to administer





1 the police force in the Metropolis. His constitutional

2 status has never been defined either by statute or by

3 the courts. It was considered by the Royal Commission

4 on the Police in their report in 1962."

5 As I have just cited. Then he said this:

6 "But I have no hesitation in holding that, like

7 every constable in the land, he should be, and is,

8 independent of the Executive. He is not subject to the

9 orders of the Secretary of State save that under the

10 Police Act 1964, the Secretary of State can call upon

11 him to give a report or to retire in the interests of

12 efficiency.

13 "I hold it to be the duty of the Commissioner of

14 Police of the Metropolis, as it is of every

15 chief constable, to enforce the law of the land. He

16 must take steps so to post his men that crimes may be

17 detected and that honest citizens may go about their

18 affairs in peace. He must decide whether or not

19 suspected persons are to be prosecuted and, if need be,

20 bring the prosecution or see that it is brought."

21 Then this:

22 "But in all these things he is not the servant of

23 anyone save the law itself. No minister of the Crown

24 can tell him that he must or must not keep observation

25 on this place or that or that he must or must not





1 prosecute this man or that one, nor can any police

2 authority tell him to do so. The responsibility of law

3 enforcement lies on him. He is answerable to the law

4 and the law alone."

5 It is a famous statement which, sir, you will be

6 very familiar with as, I suspect, Sir Anthony and

7 perhaps and Dame Valerie. It has been emphasised ever

8 since, and I'm not going to repeat that emphasis by

9 simply citing the cases in which it has been approved

10 and applied.

11 If the operational independence of the police is

12 a fundamental issue in constitutional law terms in the

13 United Kingdom generally, the position is a fortiori in

14 Northern Ireland. This can be seen in two ways in

15 particular. First, through much of the evidence that

16 the Inquiry has heard -- I'm not going to refer to it

17 now -- it will readily have appreciated the special role

18 of the police service in the life of the Province

19 generally. It is unique in that respect. Second, and

20 by way of example, the Belfast Agreement, which occurred

21 right in the middle of the events with which the Inquiry

22 is concerned, made special provision in relation to the

23 operational independence of the police; see in

24 particular paragraph 2 under the heading of "Policing

25 and Justice". This is the third document that I will





1 pray. It was recorded that the participants in the

2 agreement believe:

3 "... that it is essential that policing structures

4 and arrangement are such that the police service is

5 professional, effective and efficient, fair and

6 impartial and free from partisan political control,

7 accountable both under the law for its action and to the

8 community it serves, representative of the society it

9 polices and that it operates within a coherent and

10 cooperative criminal justice system which conforms with

11 human rights and norms."

12 This analysis of the reasons for the proper desire

13 of officials, ministers and the Secretary of State not

14 to interfere in the operational independence of the

15 police is not one which has simply occurred to the NIO's

16 lawyers now, ten years later. You will have seen and

17 heard from the NIO's officials how central it was to

18 their understanding of their roles. For example,

19 John Steele gave you the reason for the desire of the

20 NIO not to interfere in the operational independence of

21 the police in four simple words. He said:

22 "Constitutionally, it is essential."

23 Day 74, page 45, at line 1. This demonstrates that

24 it was the constitutional settlement that led the NIO to

25 act as it did, not to paying undue regard to the





1 sensitivities of the RUC. It is fair to say -- and

2 equally, this comes from John Steele as well -- that he

3 recognised that the police were concerned about their

4 operational independence. John Steele also added:

5 "At the same time, he [Sir Ronnie Flanagan] was

6 very, very conscious of police independence and, you

7 know, he was quite sure that the NIO wasn't going to run

8 the police."

9 Day 74, page 12, line 22.

10 This proper approach is to be contrasted with part

11 of the submissions of the families. At

12 paragraph 15.10 -- if we could have up on the screen,

13 please, RNI-925-337 (displayed). Thank you. It is

14 15.10. Can we highlight just the bit at the top

15 actually. Thank you:

16 "The families submit that in a democratic society it

17 beholds the Government to remind the police that they

18 are ..."

19 And then I would highlight these words:

20 "... ultimately answerable to them. However, it is

21 apparent that the NIO were unwilling to ..."

22 Then underline this:

23 "... assert their authority over the police to

24 ensure that the threat to Rosemary Nelson's life was

25 fully and properly assessed."





1 We respectfully submit that that paragraph

2 misunderstands the constitutional arrangements between

3 Government and the police. It leaves completely out of

4 account operational independence. It is wrong to

5 suggest that the police were ultimately answerable to

6 the NIO; they weren't. It is wrong to assert that the

7 NIO could assert its authority over the police. But

8 where did this authority derive from? Where do we find

9 reflection of it in statute or at common law? We don't.

10 Quite separately, if the families are correct that

11 the police are answerable to the NIO and that the NIO

12 could assert its authority over the police, then

13 presumably the NIO could quite properly assert its

14 authority in the opposite direction to that contended

15 for in this case, i.e. where the police found that

16 somebody was at risk in a risk assessment or threat

17 assessment, it -- the NIO -- could assert its authority

18 to require the police to change its mind.

19 The absurdity of this position calls into mind what

20 the Prime Minister recently said in a different context

21 in relation to this issue:

22 "You cannot pick and choose whether you support the

23 operational independence of the police. You either

24 support it or you do not support it."

25 In the circumstances, the NIO invites the Inquiry to





1 conclude that there exists a longstanding and well

2 established constitutional convention that guarantees

3 the operational independence of the police from the

4 Executive. Second, that the NIO properly recognise that

5 constitutional convention. It was a recognition of the

6 convention that caused it to act as it did and not

7 deference to sensitivities on the part of the RUC. And

8 third, that the family's submissions that the NIO could

9 assert its authority over the RUC and that the RUC was

10 answerable to the NIO are not supportable.

11 Can I turn to question 2, please? Relations between

12 the RUC and the NI. Were officials sufficiently

13 persistent in pressing the RUC and Command Secretariat

14 in particular for full and thorough replies to their

15 questions? We respectfully submit that the answer to

16 that question must be judged having regard to the

17 following three matters. Firstly, the submissions that

18 I have just made as to the proper recognition of the

19 operational independence of the police; secondly, the

20 evidence of officials at all levels within the NIO as to

21 the relationship in fact between the NIO and the RUC;

22 and third, the distinction to be drawn between

23 challenging a conclusion reached by the RUC, where such

24 a conclusion was within the competence of the RUC on the

25 one hand, and ensuring that the NIO received





1 satisfactory replies from the RUC to the questions asked

2 of it in correspondence on the other.

3 I won't repeat the submissions I have just made as

4 to the proper recognition of the operational

5 independence of the police. The second matter, evidence

6 of officials as to the relationship between the NIO and

7 the RUC. Officials at the top end and at the lower part

8 of the NIO structure slide have given clear evidence as

9 to the robust nature of the relationship between the NIO

10 and the RUC. In the former category, for example,

11 Ken Lindsay said:

12 "The relationship that I think we had with the RUC,

13 whether it was before or after or during my time, was

14 sufficiently robust."

15 He gave examples of where that robustness was

16 demonstrated. In the latter category, somebody at the

17 lower end of the structure slide, Anne Colville, said:

18 "The police, you know -- sometimes they gave you

19 a sort of part reply and, you know, you maybe went back

20 to them with a telephone call and said, you know, 'You

21 haven't answered this part'. I suppose our bottom line

22 was we wanted to be as helpful and informative in

23 correspondence as we could be. So we were quite

24 particular about that."

25 The references for those respectfully are Day 81,





1 page 80 at line 20 and Day 52 at page 122.

2 THE CHAIRMAN: You are not suggesting, are you, that there

3 would be anything improper on NIO officials, bearing in

4 mind the importance of the principle of independence so

5 far as operational matters are concerned, in saying,

6 "Please will you reconsider this matter in view of this,

7 that and the other?" Or "We would be grateful if you

8 would think again about this because we have received

9 persistent reports or enquiries or pleas?" Those sort

10 of requests would be entirely proper, wouldn't they?

11 MR BEER: I would say yes and no to that and I would draw

12 a distinction in the middle of your question. I will

13 use an example to demonstrate it in a moment, if

14 I may --


16 MR BEER: -- where exactly the situation that you have

17 contemplated, sir, arose in relation to the

18 Breandan Mac Cionnaith and Joseph Duffy implication for

19 admission to the KPPS. And you will recall there was

20 exactly that situation, and even with all of the

21 political imperatives that were weighing down on the

22 shoulders of the NIO officials responsible for asking

23 the Security Branch for a threat assessment that would

24 hopefully ensure that those two individuals were at

25 a sufficient level of risk to come within the scheme,





1 they got the answer that they didn't want both at

2 level 4 outwith the scheme, and even then they didn't go

3 back and say, "Please reconsider your decision". All

4 they did on that occasion was write back -- I'm talking

5 about G115's letter here -- and say, "Did you take into

6 account the following?"

7 When I take you through the evidence on that, one

8 can see that even there, in a matter where there was

9 pressure effectively, political pressure, coming from

10 number 10 through the person of Jonathan Powell and

11 because of the dint of circumstance, the absolute need

12 to get a solution through the proximity talks to the

13 recurring problem of Drumcree, even in that situation,

14 officials didn't say, "Can you reconsider matters?"

15 Because a request to reconsider, I would say, falls the

16 wrong side of the line. A request, "Have you taken into

17 account the following information?" would be perfectly

18 proper, and that's exactly what occurred. But a request

19 for reconsideration suggests dissatisfaction with the

20 previous conclusions, and I would respectfully submit

21 that's wrong.

22 THE CHAIRMAN: But if in fact you write and say, "Have you

23 considered this point or that point?" in effect, you are

24 asking for a reconsideration of the decision, aren't

25 you?





1 MR BEER: That's exactly what G115 said to you when he gave

2 evidence, but he said he was clear that in his letter

3 and in his telephone conversation, he made it absolutely

4 clear he wasn't asking for a review in the sense that

5 there was dissatisfaction with the conclusion. He was

6 simply saying, "I'm not clear that you have taken into

7 account this information". On that occasion, it was the

8 threat pamphlet. And when he got the answer back in

9 quite blunt language, no, level 4 again, no change, that

10 was the end of the matter.

11 THE CHAIRMAN: Yes, thank you.

12 MR BEER: We would say that's a very good example of seeing

13 why a distinction shouldn't be drawn between

14 Rosemary Nelson's case and others because there there

15 was the full weight of pressure being applied to NIO

16 officials, and even in those circumstances it didn't

17 transgress the line in seeking to change the police's

18 mind.

19 The general submissions that I have just made fall

20 to be judged by reference to the specifics of each set

21 of correspondence that the NIO had with

22 Command Secretariat. I don't propose to weary the Panel

23 by going through all of them but just take three

24 examples, hopefully the most important ones: The first,

25 the Torricelli exchange; the second, the February 1998





1 threat assessment exchange; and thirdly, the August 1998

2 threat assessment exchange.

3 The Torricelli letter first. The chronology is, in

4 short, 15 April, the letter from Senator Torricelli to

5 the British Ambassador, see RNI-101-020. No need for

6 that to be brought up. 23 April 1997, the letter

7 received by the NIO, see RNI-101-23. 30 April 1997,

8 Simon Rogers writes to the Command Secretariat asking

9 for background information and an update of events where

10 appropriate, see RNI-105-019. 22 May 1997, a follow-up

11 by Anne Colville's letter, at RNI-101-026, asking if the

12 police have discussed with Rosemary Nelson anything to

13 do with her personal protection. 6 June 1997, reply

14 from Command Secretariat. 8 July 1997, a memo from

15 Anne Colville to the IPL Division in London, at

16 RNI-105-036.

17 The principal issues arising from that exchange of

18 correspondence appears to us to be, firstly, that the

19 reply from the Command Secretariat of 6 June only refers

20 to the memo from Anne Colville of 30 April, not to the

21 follow-up memo of 22 May. Second, and relatedly, it is

22 therefore suggested that the reply of 6 June does not

23 address the question asked by the NIO as to whether the

24 police have discussed with Rosemary Nelson anything to

25 do with her personal protection.





1 The families say as follows in relation to this

2 issue in their submissions -- if we could have

3 RNI-925-294, please, and they highlight for us in

4 paragraph 12.19 the relevant part of Anne Colville's

5 evidence, which I just invite the Tribunal to read.

6 (Pause)

7 We say that added into that ought to have been the

8 answers that follow after line 25 because the answer,

9 yes, is simply referring back to the -- as Mr Phillips

10 referring back to Ms Colville's question into this

11 letter. But then the exchange continued beyond that set

12 out in this part of the family's submissions and

13 Miss Colville said:

14 "Well, I think from the memo -- well, without the

15 memo that I sent to IPL on 8 July, I would probably have

16 to agree with you, but obviously if there isn't a threat

17 or we have no evidence of a threat, why would we be

18 raising? They are not going to say, 'Why would we be

19 raising?' But that would be what would you want to take

20 out of that. There is no need to discuss personal

21 protection if there isn't evidence to support that she

22 is under threat. So at that time that was a considered

23 view. I'm sure I'm not alone by myself, otherwise, you

24 know, if we had -- if that wasn't the interpretation, we

25 wouldn't have let that go."





1 What Miss Colville was saying there was having

2 looked back at her memo of 8 July 1997 that was

3 contemporaneous evidence of her regarding the police

4 response of 6 June as a satisfactory answer to the

5 question that she raised and that she regarded it at the

6 time as an answer to the question that had been raised.

7 THE CHAIRMAN: But surely nobody could reach a conclusion

8 that Rosemary Nelson was under no threat at all. They

9 might well reach a conclusion that she was under no

10 specific threat at that time or even possibly no

11 significant threat, but that she was under no threat

12 would be a bizarre and irrational conclusion. If you

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

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

15 bearing in mind her particular job, surely she needed

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

17 MR BEER: I think there are probably three answers to the

18 question that you raised, sir.


20 MR BEER: The first and the most basic is that isn't in fact

21 what the police reply said. If we can have it up --

22 RNI-105-035 (displayed) -- it is the second line in the

23 second paragraph starting:

24 "Apart from what has been stated in the USA

25 senator's letter, we presently have no evidence to





1 support the contention that the threat 'had recently

2 become more consistent and ominous, causing Ms Nelson to

3 fear for her safety'."

4 I appreciate the point that you make, sir, because

5 in a subsequent exchange, words very similar to those

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

7 second answer.

8 All of the NIO witnesses that were asked about this,

9 said, of course, they appreciated that everyone within

10 the Province was under a threat simply by dint of the

11 circumstances of the day. What they read the

12 correspondence as meaning is that in the light of the

13 issues that had been raised in their own letters of

14 request, the reply said that there was no specific or

15 particular threat to this individual, otherwise they

16 would have said so because they had received other

17 correspondence which used exactly those words.

18 So it is the absence of such statements that is

19 significant. It didn't need the specific phraseology or

20 terminology that you have alluded to, sir, to satisfy

21 the NIO official of the answer.

22 THE CHAIRMAN: But why would the official be satisfied that

23 no discussion with Rosemary Nelson about her personal

24 protection was going to be given? I don't understand

25 that.





1 MR BEER: You have received the evidence as to why that view

2 was held, namely -- and it was twofold: firstly, that if

3 a raised threat wasn't identified in relation to the

4 individual concerned, the issue of advice about security

5 and protection didn't arise because, secondly, to attend

6 upon a person and give them advice about their security

7 and protection when there was no identified threat

8 towards them would be counter-productive; it would set

9 alarm bells ringing unnecessarily in that person; all of

10 the reasons that each of the NIO witnesses have given.

11 DAME VALERIE STRACHAN: Could I just sort of follow through

12 on that one?

13 MR BEER: Yes.

14 DAME VALERIE STRACHAN: In this particular case, it is not

15 going to raise alarm bells with Rosemary Nelson if

16 someone talks to her about her personal security, given

17 that the letters that have come in, including the

18 Torricelli letter, will obviously have emanated in the

19 first place from her expressing concern to somebody. So

20 the alarm bell thesis doesn't seem that persuasive.

21 And the second thing I would like to address while

22 you are doing it is this question which has always

23 nagged at me, which is the police, and in particular the

24 Special Branch, will check whether there is a recorded

25 threat against somebody. And we have heard quite a lot





1 about how they do it and that's a separate question.

2 But let us suppose that the threat is not coming from

3 some miscellaneous terrorist; let us suppose that the

4 threat was being uttered, as Torricelli's letter

5 suggested, by a rogue policeman. Is it terribly likely

6 that that threat would come to the attention of

7 Special Branch and that it would be unearthed that way?

8 In which case, irrespective of the police answer that

9 there was no record of a specific threat, that wouldn't

10 actually help very much to answer the second question.

11 Perhaps you could address both points.

12 MR BEER: Yes, I'll try. As to the first, what the

13 witnesses have described to you is that it is not the

14 fact that Rosemary Nelson would have been unaware that

15 third parties were raising on her behalf issues about

16 threats and degrading comments made about her. It is

17 that the attendance of the police or, in some quarters

18 it has been suggested an NIO official, would give the

19 official imprimatur on that, so that the very fact that

20 the police were attending and saying, "We have assessed

21 the risk against you. We have found that there is no

22 specific threat against you, but we nonetheless advise

23 you to do the following," would in those circumstances

24 set hares running and would be counter-productive.

25 DAME VALERIE STRACHAN: I can't quite see that. I'm sorry





1 to pause at that point. If the police were to go to

2 somebody and say, "We understand that you are concerned

3 and that you have indicated that you are receiving death

4 threats. I have to tell that you we have found no

5 evidence of that at all, but if you are concerned may

6 I suggest that you do X, Y and Z," what alarm bells

7 would that set?

8 MR BEER: You have heard consistently from the NIO and

9 police officers that in their view in the temperature of

10 the Province at that time, exactly such alarm bells would

11 be set ringing, that it would be perhaps newsworthy,

12 that it would cause undue concern to the individual.

13 They would ask for details of what assessments had been

14 conducted, exactly how the police have reached the

15 conclusion that they had and would actually ask, "Why

16 are you attending upon me if there is no threat?"

17 THE CHAIRMAN: The person was a professional solicitor

18 involved in defence work, not just an individual in the

19 Province.

20 MR BEER: I take your point, sir. That is the evidence that

21 you have heard.

22 THE CHAIRMAN: Thank you.

23 MR BEER: I haven't addressed your second question,

24 Dame Valerie.

25 I think the answer to that is probably it is better





1 answered by the police because I don't think I can

2 submit on any evidence that comes from my clients in

3 particular whether the RUC's assessment -- process of

4 assessment of threat was sufficiently broad to include

5 an assessment of whether indeed a threat would come from

6 the unnamed police officer in the Torricelli letter.

7 What I can say, however, is that the fact that that

8 was the alleged threat wasn't hidden from the RUC at all

9 because the letter was sent over, so that those within

10 the RUC were alerted by the NIO to the fact that that is

11 where the threat was alleged to have emanated from.

12 DAME VALERIE STRACHAN: Right. I'll reflect on that, but

13 meanwhile I would be grateful if the PSNI would take

14 note of the point and perhaps address it in their

15 closing submissions.

16 MR DORAN: Yes, indeed, ma'am.

17 MR BEER: If I can move to the second example,

18 the February 1998 threat assessment. The chronology

19 briefly here is that on 19 February 1998,

20 Christine Collins and Simon Rogers had a meeting with

21 a delegation from LAJI. Just as a footnote the

22 suggestion by the family's, at RNI-925-311 at

23 paragraph 14.2, that the meeting was on 22 February is

24 wrong; see the evidence of Simon Rogers at Day 59,

25 page 62, line 15. He explained that the letter was





1 dictated immediately after the meeting but signed and

2 sent out after it had come back from typing.

3 On 23 February 1998, Simon Rogers writes to

4 Command Secretariat, P157 in particular -- see

5 RNI-101-199 -- and on 1 April 1998 the

6 Command Secretariat reply.

7 The issues which arise in this context in relation

8 to the exchange of correspondence appear to us to be as

9 follows. First, did the Command Secretariat properly

10 address the issue raised in Simon Rogers' letter of

11 23 February 1998 and was Simon Rogers correct to regard

12 it at the time as having so addressed that issue? And

13 secondly, did Christine Collins revert to the RUC and

14 ask for confirmation that they had in fact conducted

15 a threat assessment in relation to Rosemary Nelson?

16 As to the first issue, the NIO asks the Inquiry to

17 bear in mind the following facts and matters. Firstly,

18 that Simon Rogers' letter of 23 February was, on any

19 view, a proactive step by him on behalf of the NIO to

20 address the issue of Rosemary Nelson's safety and

21 security. As he made clear in evidence and as is

22 apparent on the face of the document, it wasn't written

23 because he had received a piece of correspondence from

24 an NGO or any other person and was, therefore, obliged

25 to write to the RUC simply as a matter of process in





1 order to request information, in order to answer

2 correspondence; it was a positive step taken by him and

3 was written because an issue had been raised in the

4 course of his meeting with LAJI that he thought needed

5 to be addressed.

6 As it was put to Simon Rogers and as he agreed in

7 evidence, it was:

8 "... my personal concern for the safety of another

9 human being."

10 Day 59, page 61 at line 15. He didn't inform LAJI

11 that he was going to write the letter and he had given

12 no undertaking to return to LAJI with a reply on the

13 issue.

14 Second, Simon Rogers' letter of 23 February was

15 carefully constructed in order to ensure that it

16 received the appropriate attention within the RUC.

17 Thus, by way of example -- and as you know, he included

18 a reference to Christine Collins in it in the very

19 beginning of letter, in the very first line -- he

20 explained to the Inquiry that he was:

21 "... putting every fastening belt, piece of string

22 on it that I could, to make sure that every alarm bell,

23 whenever they received it, rang."

24 Day 59, page 62, line 9. He added that he didn't

25 think that there was a risk that if he didn't do all of





1 that, it wouldn't have been taken seriously by the RUC.

2 He said:

3 "I was just making sure it was at the top end of the

4 seriousness scale and not at the middle or the bottom

5 end of it."

6 He stated in a letter:

7 "We have also heard these concerns voiced by other

8 organisations and individuals over recent months."

9 And he told the Inquiry that this was part of his

10 statement to ensure that this went in and was

11 appreciated at the right level of seriousness. Day 59,

12 page 63 at line 8. He included the following in

13 the letter:

14 "It might be prudent to consider whether or not she

15 ..."

16 That's Rosemary Nelson:

17 "... needs to be approached and given advice on her

18 security."

19 As Mr Phillips put it to Simon Rogers, this was

20 'a reasonably direct way of putting matters', at Day 59,

21 page 65 at line 2, making a suggestion to the police on

22 a matter that is an operational one.

23 As Simon Rogers explained:

24 "I didn't need to put that because that is the

25 police's business, not mine. But I was trying to





1 encourage them to take a fairly constructive approach to

2 the letter as a whole."

3 We say thirdly that the Inquiry should have regard

4 to all of these points, which are patent on the face of

5 the documents, in assessing Simon Rogers' reaction to

6 the reply by the RUC. If he had taken such care in

7 constructing the letter, in making all of these trigger

8 references to ensure that they were properly dealt with

9 and with the appropriate level of seriousness, would he

10 then have idly dismissed the reply that he received if

11 he did not believe that it dealt with the issues that he

12 had raised?

13 He explained fourthly to inquiry that the statement

14 in the RUC reply that:

15 "The police have received no threats in respect of

16 Mrs Nelson."

17 Meant to him that the police were not aware of any

18 specific threats which had substance against

19 Rosemary Nelson, but although the phrase "specific

20 threat" was not one that was used in the letter, the

21 letter was telling him that there was, from the police's

22 view, no threat to Rosemary Nelson and that he arrived

23 at that view having regard to his years of experience in

24 dealing with the police, the nature of the letter that

25 he had sent, the heading of the RUC reply and the text





1 of the RUC reply. In summary, he said that it was

2 a response to the point that he had asked in his letter.

3 The family's submission in this case doesn't

4 acknowledge in any way the context of the working

5 relationship between the NIO and the police. This was

6 a close relationship, there was daily contact, many

7 times a day sometimes, lots of telephone contact, people

8 knew each other. And the means and method and content

9 of communication was known between the parties.

10 One might have to agree that the terseness and

11 obscurity of the responses on occasions do read rather

12 oddly to an outsider, i.e. to you and to me. But that's

13 an outsider in the terms of an outsider of the

14 relationship that I have just described. But such an

15 approach does not recognise the context and the working

16 relationship between those two organisations.

17 Lastly, we say that the Inquiry should have regard

18 to Christine Collins' evidence on the issue of RUC

19 correspondence generally, namely she stressed the

20 importance of understanding the nuances of information

21 provided by the police, that she and those within her

22 division had great experience of the police in reading

23 in an informed way what were often brief written

24 communications.

25 As to the latter point, whether Christine Collins





1 reverted to the RUC to check that a threat assessment

2 had been indeed conducted, we submit as follows. First,

3 the family's submissions are, we say, with regret,

4 unfairly critical of Miss Collins' recollection that she

5 followed up the Command Secretariat reply with

6 a telephone call to Command Secretariat and spoke to

7 P157 or, if not P157, sir, P136.

8 The families made three points in this regard. They

9 say that there is no documentary evidence to support

10 Christine Collins' recollection. The reason that

11 prompted her to revert to the Command Secretariat

12 is confused, thereby casting doubt on whether she

13 reverted at all, and that the subject matter of her

14 discussion on her evidence with the Command Secretariat,

15 was confused, thereby casting doubt on whether any such

16 conversation occurred at all.

17 Dealing with the first issue, the absence of

18 documentary material to support her recollection, we say

19 that this is a slightly unfair point. The Inquiry will

20 recollect that a theme of Miss Collins' evidence was

21 that in most instances she did not have available to her

22 a copy of the Police Division copy of relevant

23 correspondence. That copy of correspondence would have

24 had written on it her own notes, often in the margins,

25 of her thoughts on the subject matter raised, of the





1 actions that she wanted taken and of telephone

2 conversations or communications relating to the subject

3 matter of the letter. She didn't write separate

4 attendance notes for fear that they would, rather

5 ironically in the circumstances, become separated from

6 the correspondence to which they related.

7 That this was Miss Collins' practice is confirmed by

8 a surviving example of such a handwritten note. We

9 needn't turn it up now. The Inquiry will be familiar

10 with it. It is RNI-105-053.506. It is the one with the

11 writing at the top, the arrow down the side and the

12 "nail the allegations" comment at the bottom. And

13 that's a surviving example of Christine Collins'

14 practice.

15 The Inquiry will know that despite a number of

16 searches by current NIO officials, no remaining examples

17 of other of Miss Collins' notes can be found, but that

18 is not a point that should be held against her.

19 Second, looking at the other party to the

20 communication, an officer within the

21 Command Secretariat, we know from the papers generally

22 that officers in the Command Secretariat didn't adopt

23 the practice of keeping attendance notes. And third,

24 the outcome of the conversation, namely that

25 Christine Collins was reassured, meant that it was not





1 necessary for further written exchanges between the

2 relevant parties to occur. So in those circumstances,

3 the absence of, as the family put it, documentary

4 corroboration is an unfair point to take.

5 The second issue raised, namely the reason that

6 prompted Christine Collins to call Command Secretariat.

7 The Inquiry should, we say, bring into account that in

8 common with so many witnesses, Miss Collins was not able

9 to give a perfect and clear recollection of events so

10 many years ago, and it having occurred in the context of

11 such a lot happening. The family seem to be accepting

12 of others who do not have a clear recollection, but

13 choose to be particularly critical of Christine Collins

14 and her lack of a precise recollection in this regard.

15 It should be noted that Miss Collins did say as follows:

16 "I think we were still aware -- I'm pretty certain

17 we were aware of that sort of thing being in circulation

18 that we hadn't ourselves seen and which the police

19 hadn't seen either. I just wanted to be sure that what

20 they meant when they said, back in the other letter, the

21 no threats letter, what was that based on."

22 And she said:

23 "Please put this with a very large, you know,

24 caveat: not reliable source, not verified independently

25 anywhere else."





1 She was in this respect a careful witness,

2 distinguishing for the Inquiry between recollections

3 which were hazy, memories which were concrete and others

4 which fell into neither category.

5 Turning to the last issue, the subject matter of the

6 conversation, her evidence on this issue was clear: she

7 had a concrete recollection of speaking about the fact

8 that a threat assessment had been conducted, see Day 61,

9 pages 10 to 19. The balance of the issues that she

10 mentioned when giving evidence, whether it would have

11 been appropriate to visit Rosemary Nelson and whether

12 the RUC had seen material which LAJI had referred to in

13 the meeting back on 19 February 1998, she was less sure

14 about.

15 Here, context is everything. One is dealing with

16 one telephone conversation that occurred over ten years

17 previously without contemporaneous documentary material

18 to assist, by an exceptionally business civil servant.

19 THE CHAIRMAN: Part of the context of this correspondence is

20 the British Irish Rights Watch letter, which was

21 enclosed in Lesley Foster's letter of 10 February. And

22 one matter raised in that letter -- you remember the

23 letter is headed "Abuse of Defence Lawyers" -- is

24 Jane Winter writing:

25 "I hope you will personally look into this complaint





1 and ensure that appropriate action is taken, that

2 a clear message is sent to every RUC officer that this

3 sort of behaviour is wholly unacceptable."

4 Was this matter ever taken up with the RUC by the

5 NIO?

6 MR BEER: Yes, I believe it was, but I don't think I can

7 give you the reference offhand. As I recollect, it was

8 taken up in correspondence and a reply came back that it

9 reveals an assumption of guilt to deliver such a message

10 that is unwarranted. But over --

11 THE CHAIRMAN: Is that a satisfactory answer?

12 MR BEER: I firstly need to check the exact terms of the

13 answer so that we are both speaking about exactly the

14 right words. But your question was was it raised, and

15 the answer is yes, to my recollection. And I think

16 that, on any view, is at the very margins of what it is

17 appropriate for the Executive to do, to request a chief

18 officer of police to issue directions to his men and

19 women. So, yes, I think the evidence --

20 THE CHAIRMAN: Isn't it a matter that John Steele

21 specifically raised with Sir Ronnie Flanagan? Wasn't it

22 to take a grip of the matter?

23 MR BEER: Yes. Again, I will have to check exactly whether

24 he said that he didn't feel that he needed to do that

25 because he knew Sir Ronnie was, as opposed to the way





1 you put it, sir, namely that he told him a take a grip.


3 MR BEER: I think my recollection might be right on that.


5 MR BEER: Turning, if I can, lastly and briefly to

6 the August 1998 threat assessment, the chronology is as

7 follows: 6 August 1998, Simon Rogers sends a letter to

8 the Command Secretariat enclosing a pamphlet -- see

9 RNI-106-275; 10 August 1998, CAJ send a letter to the

10 minister providing a further copy of the pamphlet and

11 a copy of the threat note, RNI-116-37; 26 August,

12 Lesley Foster faxes a letter to the Command Secretariat

13 but fails to enclose a copy of the pamphlet or the

14 threat note with her fax, at RNI-102-89 to RNI-102-90.

15 At this stage, I'm not going to go into the detailed

16 submission that is we made in our written closing as to

17 the circumstances in which the, as we submit, important

18 enclosures were sent to Command Secretariat.

19 3 September 1998, reply from the Command Secretariat

20 at RNI-101-348. The allegations in relation to this

21 exchange appear to be, first, that the reply did not

22 refer to the threat note, that the NIO ought to have

23 realised this and raised the issue with the RUC. But

24 the letter of reply -- that's RNI-101-348 -- refers to

25 both Simon Rogers' letter of 6 August 1998 and





1 Lesley Foster's letter of 26 August 1998.

2 In these circumstances, we say it is entirely

3 reasonable to assume, and was reasonable at the time for

4 officials to have assumed, that both letters and their

5 respective enclosures had been taken into account.

6 There was no, on the face of the RUC's reply, to think

7 otherwise. It said, "I'm writing in reply to your two

8 letters of 6 and 26 August". A reader of that wouldn't

9 be alerted to the possibility that either letter or the

10 enclosures to either letter hadn't in fact been taken

11 into account. It is just not a reasonable position to

12 take.

13 DAME VALERIE STRACHAN: Can I just pause on that one?

14 MR BEER: Yes.

15 DAME VALERIE STRACHAN: Yes, I accept your starting point,

16 which is if somebody said, "I'm replying to your two

17 letters", it is reasonable to assume that they are

18 replying to your two letters and everything that is

19 inside them. Given the nature of the enclosures,

20 however, might it not have been expected by the NIO that

21 the RUC would have said something about the threat note?

22 I mean, it is different from the pamphlet. It is the

23 first example that the NIO and, as far as they know, the

24 police, have seen of something directly addressed to

25 Rosemary Nelson threatening her life. Wouldn't they





1 have expected the RUC to have dealt explicitly with the

2 threat note?

3 MR BEER: I would say that that's applying a counsel of

4 perfection with all of the benefits that hindsight gives

5 us.

6 Just in the ordinary run of events, whether one is

7 dealing with personal matters or business matters, if

8 you send out two letters with enclosures and a letter

9 comes back saying, "I'm referring to both of your

10 letters", you naturally think that the contents of those

11 letters have been taken into account.

12 THE CHAIRMAN: Even though the reply makes no mention of the

13 other individuals mentioned in the pamphlet, which was

14 specifically raised in the letter to the RUC? That is

15 Simon Rogers' letter of --

16 MR BEER: 6 August, yes. Yes, I take that point. That's

17 a refinement, I would say, with respect. And I think

18 that's a fair point that I would have to take on the

19 chin.


21 MR BEER: But, again, it is a point made with the benefit

22 of -- and I hope this doesn't sound disparaging --

23 picking over correspondence with a microscope. There

24 was nothing on the face of it to set alarm bells ringing

25 in the recipient.





1 THE CHAIRMAN: Even though the NIO knew so much about

2 Rosemary Nelson by this time, mustn't they have been

3 surprised at the answer that there was no threat, no

4 specific threat?

5 MR BEER: No, you have heard evidence that, for the purposes

6 of deciding whether or not to pass on the

7 correspondence, the officials took the view that they

8 couldn't say one way or the other whether the

9 allegations in them were true, which is a perfectly

10 proper Civil Service approach to take: that one doesn't

11 form a judgment in deciding on what action to take. And

12 so the NIO officials weren't in a position to say, "We

13 know that in fact she is under threat", because they

14 haven't got any means either of independently coming to

15 that conclusion or any material upon which to judge it.

16 They had received allegations of that nature.

17 THE CHAIRMAN: But the NIO knew by that stage of the alleged

18 relationship with Colin Duffy, didn't they?

19 MR BEER: Well, no, the two people that knew about the

20 alleged relationship with Colin Duffy were Sir Joe

21 Pilling and David Watkins. In relation to Sir Joe

22 Pilling, he was unable to date when the off-the-cuff and

23 unevidenced remark was made by the Chief Constable. So

24 I can't say whether it was known by this time, receipt

25 of the letter of 3 September, or not.





1 But in any event, he has given clear evidence that

2 because of the clear context in which it was made, he

3 didn't, quite properly, pass it on or regurgitate it or

4 spread the rumour any further.

5 The second person, David Watkins, who in this regard

6 receives, we would say, the rightful recognition in the

7 family's submissions that he adopted an honourable

8 approach to when the remark was made in the course of

9 an SPM, which I think we can date to July 1998, which

10 would put it before this -- you will recall he was in

11 the changeover position, coming into his job. I think

12 he attended the SPM before he had taken up his role to

13 ease himself into it, and I think we can date that, if

14 memory serves, 10 July 1998. Of course, he was in

15 a different branch to those dealing with this

16 correspondence. He said that because the remark was

17 unevidenced, because it was unsupported, and because of

18 the nature in which it was made, the context in which it

19 was made, he consciously dismissed it from his mind in

20 all future dealings.

21 So it is a limited number of people, one of whom we

22 can say knew about the alleged relationship before this

23 time but not promulgated, not passed on to the people

24 concerned with this correspondence.






1 MR BEER: Can I turn to question 3, if I may? To what

2 extent was the approach of the RUC and of the NIO to the

3 alleged threats to Rosemary Nelson coloured by the

4 perception that those matters were being investigated

5 and were to be treated as complaints?

6 We would respectfully say that the Inquiry has heard

7 clear evidence that the NIO acted proactively and

8 consistently in a serious vein, when it was made aware

9 of threats to Rosemary Nelson, over and above any

10 separate complaints process. I won't repeat the points

11 made in paragraphs 10.32 to 10.38 of our submissions.

12 What must be borne in mind is that in the UK the

13 mechanism for investigating a threat, regardless of

14 where it emanated from, was, we submit, understandably

15 the police. The police had expertise in the

16 intelligence capability to make the necessary

17 assessments about someone's personal safety arising from

18 those threats and take any action arising from the

19 assessment that was required.

20 The Inquiry has heard evidence from police officers

21 about doing just that, for example, visiting homes to

22 warn somebody about a specific and immediate threat to

23 their safety that had come to the attention of the

24 police, and presumably that is exactly what had happened

25 if, at any time, specific information about a specific





1 threat had been given in this case.

2 At the same time, however, as far as it can be done

3 within reason, it is equally necessary that the threats

4 be investigated to see whether a crime has been

5 disclosed or committed and is capable of being

6 prosecuted. Where the alleged threats emanate from

7 a police officer, a dual issue therefore arises in that

8 as well as investigating the alleged behaviour for

9 criminal offence purposes, the matter would and, it is

10 submitted, should also be looked at in terms of police

11 discipline and the mechanism in the UK, where the

12 complaint of behaviour involves a police officer, was

13 for an internal division within the relevant police

14 force -- in this case, the Complaints and Discipline

15 within the RUC -- to carry out that dual investigation.

16 The fact that this dual process is engaged does not

17 mean that the matter was considered simply as

18 a complaint. It is actually considered as what it is:

19 an internal police investigation carried out by

20 a specific branch of the police whose only job is to

21 investigate police behaviour in order to ascertain

22 whether criminal or disciplinary offences have been

23 committed by the relevant police officers. If the NIO's

24 approach in this regard was to be just interested in

25 dealing with the progress of complaints, i.e. just looking





1 to the perpetrators of the threats, then the Inquiry

2 would not expect to find correspondence from the NIO

3 relating to the safety of the individual concerned. An

4 examination of the various pieces of correspondence

5 shows, we say, that the issue of Rosemary Nelson's

6 personal safety was raised quite separately from the

7 complaints by the NIO, by way of example.

8 Anne Colville initially sent the Torricelli letter

9 to the RUC on 30 April, RNI-101-018. I accept that that

10 was a complaint-driven request. There is no other way

11 around that. She asked the police to give consideration

12 to the contents of the letter. However, Simon Rogers

13 followed that up with his fax of 22 May, see RNI-101-26,

14 specifically raising the issue of Rosemary Nelson's

15 personal safety with the police, given the reference to

16 threats in the Torricelli letter. So that's the first

17 example of a differentiation within the same letter from

18 Senator Torricelli, the first letter on the 30th raising

19 the complaints issue, the second letter on 22 May

20 raising the issue of threats to personal safety.

21 Second, Simon Rogers wrote to the police on

22 23 February 1998, see RNI-101-096, after his meeting

23 with LAJI, raising the issue of Rosemary Nelson's

24 personal safety, suggesting options to the police as to

25 what they could consider doing in the light of the





1 suggestions being made by LAJI. That sparked

2 the February 1998 threat assessment. Clearly, the

3 origination of that threat assessment had nothing to do

4 with complaints; it was entirely caused by a letter from

5 the NIO, solely about personal security. The subsequent

6 response of the police of 1 April, RNI-101-267, had

7 equally nothing to do with complaints.

8 Third, Simon Rogers' letter to the police of

9 6 August, RNI-101-327, passing on a copy of the pamphlet

10 which he had received from the British side of the

11 Secretariat. Again, the letter and the matters raised

12 by Mr Rogers in it are about the personal safety of

13 individuals and nothing to do with complaints. That

14 prompted the August 1998 threat assessment in which the

15 police confirmed to the NIO that they were unaware of

16 a specific threat to Rosemary Nelson, see RNI-103-152.

17 Lesley Foster's follow-up fax of 26 August was,

18 again, raising the issue of personal security in the

19 light of the documents being sent, see RNI-101-340. And

20 perhaps most significantly, the Adam Ingram letter back

21 to Paul Mageean of CAJ of 24 September 1998, see

22 RNI-106-234, was all about matters relating to

23 Rosemary Nelson's personal security and the various

24 measures -- you will recall the three levels of

25 levels -- that might be available to her. And that had





1 nothing to do with complaints.

2 So whilst there were clearly issues about complaint,

3 indeed at times the correspondence raised the issue of

4 investigations into the alleged threats from the

5 police -- see in particular the first referral of the

6 Torricelli letter -- it is clear that the NIO did not

7 treat the matters relating to the threats to

8 Rosemary Nelson simply or solely as complaints. The

9 evidence demonstrates that such a suggestion would be

10 unfair.

11 THE CHAIRMAN: Would that be a convenient moment, Mr Beer,

12 if you are moving on to another matter?

13 MR BEER: Yes, thank you.

14 THE CHAIRMAN: We will have a break until quarter to 12.

15 MR BEER: Before we rise, I think my homework consists of

16 one outstanding request, which was an answer that

17 I failed to give you, which was whether the RUC were

18 tasked with dealing with the matter raised by

19 Jane Winter in the BIRW letter?


21 MR BEER: I will try and do that over the short adjournment.

22 THE CHAIRMAN: Thank you very much.

23 (11.31 am)

24 (Short break)

25 (11.49 am)





1 THE CHAIRMAN: We are late. I won't say about the other

2 people, Mr Beer.

3 MR BEER: I'm sure it is only the content of what I'm saying

4 and not their timekeeping that is the problem.

5 Can I partially answer your question?

6 THE CHAIRMAN: Yes, thank you very much.

7 MR BEER: Sir, I think both of our recollections were

8 imperfect in a small degree. I was right to the extent

9 that there had been an exchange along the lines that

10 I suggested, but the trigger for it wasn't the

11 Jane Winter letter.

12 If we can have up to the screen, please,

13 RNI-101-063, please (displayed). You will see this is

14 a letter -- if you just go over the page, please -- from

15 Anne Colville -- and then back, please -- dated

16 1 September, and it related to a letter that had been

17 received from Amnesty International. Then in the last

18 paragraph on that page, Miss Colville asks:

19 "It would be very helpful, however, to have a line

20 on the comment that officers who come into contact with

21 detainees should be told that disparaging comments about

22 a detainee's lawyer are forbidden."

23 So it is to similar effect.


25 MR BEER: The request had been made by





1 Amnesty International: can't the Chief Constable

2 effectively promulgate such a direction that this is

3 verboten. The reply to that -- so this is Miss Colville

4 asking for a line on that very topic -- so can't

5 something along those lines be done. The reply came

6 back on 10 September, so nine days later, at RNI-101-074

7 (displayed) -- thank you:

8 "I refer to your letter of 1 September ..."

9 Then the third paragraph:

10 "The lines used 'disparaging comments about

11 a detainee's lawyer' are forbidden and to ensure that

12 such incidents do not happen in the future, i.e. a

13 direction is given by the Chief Constable to that

14 effect, reveal an assumption of guilt. This is in stark

15 contrast to the calls for justice and fairness so

16 frequently voiced by Amnesty International."

17 THE CHAIRMAN: Thank you.

18 MR BEER: I haven't discovered precisely yet, or more

19 accurately Mr Aiken hasn't discovered precisely yet,

20 what John Steele said about the getting a grip issue,

21 but I will return to that in a moment, if I may.


23 MR BEER: Can I turn to question 4 that I posed at the

24 beginning: to what extent was the approach of officials

25 at the NIO involved in the consideration of the threat





1 to Rosemary Nelson coloured by negative perceptions held

2 by them of Rosemary Nelson or of those who made

3 representations of her behalf.

4 There are two issues here: firstly, is there

5 evidence that establishes that officials within the NIO

6 did have negative perceptions of Rosemary Nelson; and

7 secondly, if they did have such negative perceptions,

8 did those perceptions colour their approach to the

9 consideration by them of matters concerning her.

10 In relation to the first matter, it would appear

11 that the negative perceptions alleged, certainly alleged

12 by the family, to have been held by NIO officials fall

13 within four categories. First, that:

14 "Senior civil servants demonstrated their prejudice

15 through their display of a profound inability to

16 distinguish Rosemary Nelson as a professional from the

17 clients she represented."

18 That was at paragraph 3.9 of the family's

19 submissions at RNI-925-038. Second, that:

20 "This same type of perception is alleged to have

21 been held by the NIO generally, which apparently, i.e. the

22 NIO generally, believed that Rosemary Nelson was at the

23 heart of a propaganda campaign waged on behalf of

24 Republican interests, and her militant Republican

25 clients in particular, to whom she was closely and





1 unprofessionally allied."

2 That allegation is made in paragraph 3.6 of the

3 family's submissions at RNI-925-036. Third, it is

4 alleged that the Inquiry has established that:

5 "Government officials held the prejudiced view that

6 Rosemary Nelson had 'crossed the line and was working

7 actively for terrorist organisations'."

8 That was paragraph 3.5 of the family's submissions,

9 RNI-925-036. And lastly, and most regrettably of all,

10 it is alleged that NIO officials would have treated the

11 threats to Rosemary Nelson more seriously if she had

12 been a male and Protestant, apparently like the NIO

13 officials who were judging her.

14 That allegation is made in paragraph 14.51 of the

15 family's submissions at RNI-925-332. So there is the

16 indictment, as it were, these are the allegations of

17 negative perceptions.

18 In relation to the first of the above, if we can

19 have up, please, RNI-925-038 (displayed). Thank you.

20 And it is the line at the top in paragraph 3.9:

21 "... a succession of ..."

22 So the paragraph at the top of the page, please.

23 This is really the only allegation that is made in this

24 respect:

25 "It is said a succession of senior police officers





1 ..."

2 And then this:

3 "... senior civil servants have demonstrated their

4 prejudice before this Inquiry through their profound

5 inability to distinguish her as a professional from the

6 clients she represented."

7 This is a consistent theme in the family's

8 submissions.

9 What we would say is as follows. First, there is

10 absolutely no evidence whatsoever to justify an

11 allegation that officials within the NIO were unable to

12 distinguish between Rosemary Nelson and the clients she

13 represented. The persons allegedly holding this view

14 have not been identified by the families, whether in

15 this passage of their submissions or elsewhere. The

16 evidence on which this submission is based is not

17 identified here or elsewhere. There isn't any evidence

18 before the Tribunal, the Panel, that could justify the

19 submission that has been made here. In fact,

20 John Steele gave clear evidence that he was that he was

21 not aware at the material time of any allegations that

22 Rosemary Nelson was behaving improperly as a solicitor

23 in relation to allegedly pressurising witnesses, in

24 creating false alibis or in relation to the alleged

25 affair. He explained how Rosemary Nelson came to his





1 notice, Day 74, page 31 at line 18:

2 "She came to my notice as the legal adviser to the

3 GRRC. I knew her in no other capacity."

4 It appears that in this respect -- and I say this

5 with regret -- the authors of the submissions have

6 simply associated NIO officials with police officers.

7 This is ironic given the allegations being made, namely

8 one of improper association.

9 In relation to the second matter, at paragraph 3.6

10 of the family's submissions -- this is at RNI-925-036

11 (displayed) and it is at the bottom of the page,

12 please -- thank you -- 3.6:

13 "The evidence which the Inquiry has received clearly

14 demonstrates that there was a perception amongst police,

15 security services and the NIO that Rosemary Nelson was

16 at the heart of a after propaganda campaign waged on

17 behalf of Republican interests, that she was closely

18 allied in a way which was unprofessional in ..."

19 Over the page, please:

20 "... various respects with the cause of the militant

21 Republicanism and that she was seen in particular to be

22 closely allied, including in a way which was

23 unprofessional with her client and with one in

24 particular, Colin Duffy."

25 The allegation of the perception that





1 Rosemary Nelson was part of a campaign that was being

2 waged was scotched completely when John Steele explained

3 that of course he believed that campaigns were being

4 waged to damage the interests of the State, including

5 the police as part of that state. But at that time, he

6 and the department did not regard Rosemary Nelson as

7 being involved in one. He said, Day 74, page 37 at

8 line 25 and following:

9 "There were those people in Northern Ireland who

10 were anti-police and wanted to embarrass them. We were

11 used to this to some degree. Ms Nelson was not one of

12 these people. She didn't seem to me to be particularly

13 stirring it in the public sense. That was a judgment

14 that I reached based on my very considerable experience

15 of these matters."

16 He went on to explain that as far as the campaigning

17 by NGOs are concerned -- he openly explained that he

18 regarded the BIRW as lacking in balance and coming from

19 a concern political direction and that they may have

20 been used been others.

21 He was asked by Inquiry counsel as to whether those

22 views would have affected how he regarded the NGOs, and

23 he explained at Day 74, page 64 at line 22 and

24 following:

25 "Question: And presumably that affected the way you





1 regarded them? It must have affected the way that you

2 regarded them?

3 "Answer: Yes, in the way that we regarded them, but

4 not in the way that we dealt with them. We dealt with

5 them as we should have dealt with them, with any

6 organisation that came to us."

7 This is a perfectly proper and respectable approach

8 for a civil servant, one which civil servants take day

9 in, day out. Simply because one holds a view of

10 somebody or an organisation, which may or may not be

11 a completely justifiable view to hold, it does not

12 follow that one is incapable of treating that person in

13 a proper manner or improperly handling issues raised by

14 them. It is the meat and drink of the civil servant.

15 In any event, John Steele went on to explain:

16 "I didn't know whether Rosemary Nelson was actively

17 involved in this campaigning or whether she was in fact

18 being used or taken up by others for their own

19 purposes."

20 Day 74, page 66 at line 5.

21 Regardless of whether the evidence would now justify

22 a view adverse to Rosemary Nelson or that would confirm

23 that she was engaged with others in a campaign, that was

24 not how she was viewed by the NIO at that time. There

25 is simply no evidence to justify the submission that has





1 been made. In this regard, it is a regrettable personal

2 attack on the integrity of men and women who have given

3 evidence to the Inquiry with a frankness and

4 transparency that does not credit the allegation that is

5 being levelled.

6 Thirdly, and perhaps most seriously, the family's

7 submissions go so far as to allege that, again,

8 unspecified Government officials held the prejudiced

9 view that Rosemary Nelson had crossed the line and was

10 actively working for terrorists. If we can look at

11 RNI-925-036, please (displayed). It is paragraph 3.5:

12 "What this Inquiry has established is that RUC

13 officers did identify Rosemary Nelson with her client to

14 the extent that senior police officers have stated to

15 this Inquiry that she had crossed the line and was

16 actively working for terrorist organisations."

17 So that's the allegation against RUC officers. Then

18 this:

19 "indeed, these prejudiced views were much more

20 widely held by senior police officers and Government

21 officials than she could ever have imagined."

22 So the allegation there is that Government officials

23 held the view that Rosemary Nelson had crossed the line

24 and was actively working for terrorist organisations.

25 There is no evidence cited in support of that and





1 there is none. It may be that the authors of the

2 document realised that that paragraph was unsupported

3 and supportable.

4 If we can keep that page up, please, RNI-925-036 and

5 put alongside it RNI-925-355 (displayed). This is

6 a little later in the same document. I don't think you

7 can highlight when there are two things up at the same

8 time. Mr Phillips is an expert on this and I don't see

9 him nodding, but if one reads paragraph 15.43 -- oh, one

10 can:

11 "This prejudiced and poisonous interpretation of

12 Rosemary Nelson's perfectly legitimate and professional

13 activities ..."

14 We will look exactly at what that refers to in

15 a moment:

16 "... whilst widely held in Special Branch was not

17 held by those in the NIO charged with making this

18 assessment or, indeed, the Chief Constable, who

19 completely rejected the conclusion that Rosemary Nelson

20 had crossed the line as being utterly without

21 foundation."

22 So paragraph 3.5 is the submission that Government

23 officials held the view that Rosemary Nelson had crossed

24 the line and was actively working for terrorist

25 organisations.





1 Three hundred pages later is the recognition that

2 this poisonous and prejudiced interpretation -- and we

3 will see what that refers to; it is the quote before --

4 was not held by those in the NIO charged with making the

5 assessment. It may be that these two parts of the same

6 submission were not authored by the same person or maybe

7 as the submission progressed there was a recognition of

8 the folly of making the earlier submission.

9 THE CHAIRMAN: It may be that Mr Harvey, if asked over the

10 lunch break, may wish to clear this matter up, in

11 fairness.

12 MR BEER: So that he can do so fully and fairly, if we take

13 off the first document, RNI-925-036, please, where the

14 allegation is made -- thank you -- and if we can display

15 this page, RNI-925-355, alongside RNI-925-354

16 (displayed). So this is the introduction, the run-in to

17 the "this prejudiced and poisonous interpretation" and I

18 should show you this. It starts with Dame Valerie's

19 question:

20 "Do you think that the NIO was aware of the view

21 that she was involved in terrorist activity?

22 "Answer: I would believe that they were aware, yes.

23 "Question: What is the basis of that belief?

24 "Answer: Because it would have been in the IMAGIRs

25 and the NIIRs that would have flowed from them."





1 If we can go one page further back at RNI-925-353

2 (displayed) -- yes. That doesn't carry the matter any

3 further forwards.

4 So in summary, B597 held, it seems, the view that

5 Rosemary Nelson had crossed the line and was actively

6 working for terrorists.

7 At paragraph 5.43, the authors of the submission

8 recognised that that "prejudiced and poisonous"

9 interpretation was not held by those in the NIO. That

10 stands in stark contrast to the earlier submission,

11 namely that they did.

12 It is a very serious allegation to make. It ought

13 to be evidenced in some way, however brief. There is no

14 evidence to support it.

15 If, and to the extent, it is based on that part of

16 the evidence of B597, which I have drawn the Inquiry's

17 attention to, where he believed that the NIO would have

18 known about the senior Special Branch view that

19 Rosemary Nelson was working as alleged because senior

20 officials would have seen the relevant IMAGIRs or NIIRs,

21 the Inquiry has seen all such documents. So far as the

22 NIO is aware, no such documents that were sent to the

23 NIO contain any such suggestion and no person has

24 suggested that any official within the NIO held such

25 a belief.





1 The fourth allegation that was made appears at

2 RNI-925-332 (displayed). If we can -- yes, thank you

3 very much. It is at paragraph 14.51:

4 "In matters of life and death, this type of reaction

5 is never acceptable. It, coupled with the lack of care

6 that characterised the threat assessment, indicates

7 a thoughtlessness and prejudice which must in part be

8 because of the environment in with which the threats

9 were assessed. The Panel should consider whether NIO

10 officials would either have groaned or, indeed, been

11 allowed to groan, if the focus of the death threats was

12 someone who came from a background similar to

13 themselves: male and Protestant."

14 Here, the accusation appears to be of both religious

15 and sexual discrimination towards Rosemary Nelson. The

16 allegation is made against, once again, unnamed

17 officials within the NIO, but is presumably aimed

18 against those who were Protestant and male. That is bad

19 enough, but the context of the discrimination alleged is

20 in relation to alleged ambivalence about a person's

21 life.

22 It is said of the unnamed individuals that had the

23 repeated notification of threats been about a Protestant

24 male, then they would have dealt with the case

25 differently and more seriously. The reasoning is based





1 on the submission that the unnamed NIO officials were

2 both male and Protestant.

3 Firstly, and perhaps unsurprisingly, these

4 allegations were never put to any NIO witness who gave

5 evidence to the Inquiry. Secondly, the authors of the

6 allegation had no idea of the religious affiliations of

7 the people whom they accuse within the NIO who dealt

8 with Rosemary Nelson's case. In fact, the allegation is

9 based on the presumed denomination of individuals, which

10 in fact is simply wrong in some instances. The authors

11 don't know whether any of the relevant people were

12 Jewish or even Buddhists. Third, of course, some of the

13 principal allegations made by the family in this regard

14 are against Anne Colville and Christine Collins -- this

15 is the passage at which this submission occurs -- who do

16 not fall within at least half of the definition which is

17 advanced, namely being male.

18 In relation to gender generally, the Inquiry heard

19 from 12 NIO witnesses, four of whom were women; of the

20 eight additional officials who gave witness statements,

21 three of them were women. In fact, in 1999,

22 53.8 per cent of NIO staff were female; 25 per cent of

23 them declared that they came from a Roman Catholic

24 background, compared to 70 per cent Protestant, and

25 5 per cent not declared. I think that's the fourth





1 document that I will ensure is passed. It is an equal

2 opportunities report, the seventh report. For the note,

3 it is page 35 and the statistics appearing in the table

4 there.

5 Ironically, this submission too demonstrates the

6 type of thinking that the representatives of the family

7 have been at pains to point out: that Rosemary Nelson

8 would not have engaged in, namely judging somebody

9 without any evidence. This submission in particular is

10 one for which there is no evidence and it ought, with

11 respect, not to have been made.

12 Question 5: was the system for the assessment of

13 threats itself flawed and, if so, in what respects? The

14 NIO is not an expert and does not contain experts on the

15 manner in which threat assessments should be carried

16 out. The NIO has, however, through its evidence made

17 its position clear, that the appropriate organisation

18 with the relevant skill, professional expertise and

19 intelligence gathering systems was the police and that

20 the NIO was entitled to and did take those assessments

21 that it produced at face value and rely on the outcome

22 of the threat assessments.

23 Whilst the family's submissions make various points

24 as to the process that was undertaken in the course of

25 the threat assessments, no doubt the police service will





1 address those in their submissions. The position

2 remains that if the Inquiry accepts the evidence from

3 the police, there was no intelligence held by the police

4 which suggested that Rosemary Nelson was under threat

5 from paramilitaries.

6 This criticism may have had more weight had it been

7 the case that there was relevant material available to

8 the police that hadn't been considered and taken into

9 account. So far as we are aware, the Inquiry has not

10 received such evidence upon which to come to such

11 a view.

12 The family have targeted criticism at the NIO in

13 paragraph 12.4 of its submissions at page RNI-925-302,

14 when they alleged that the fact that the KPPS branch was

15 not involved in the assessment of the risk to

16 Rosemary Nelson is indicative of not taking matters

17 seriously enough in relation to Rosemary Nelson's

18 safety.

19 I have dealt with the broad thrust of this

20 allegation already. The evidence demonstrates that the

21 NIO did deal with matters relating to security and

22 safety seriously, raising the matter proactively in the

23 circumstances with the RUC. That is not to say that

24 looking at the matters again, with hindsight and a very

25 critical eye, does not demonstrate that there were





1 things that the NIO could have done better. Failing to

2 have the KPPS branch, a branch who administered the KPPS

3 and didn't participate in the carrying out of threat

4 assessments, involved in the RUC threat assessment on

5 these two occasions was not one of them.

6 Question 6: was the NIO sufficiently challenging or

7 critical of the threat assessment process itself and of

8 the RUC's threat assessments or advice? We have divided

9 this into two parts. First, was the NIO sufficiently

10 challenging or critical of the threat assessment

11 process? We say yes, because it wasn't the function of

12 the NIO to challenge or be critical of the process for

13 the assessment of threats, nor could it have been

14 challenging or critical even if it had wanted to be. It

15 had no knowledge or information within which to mount

16 such criticism. This is because, firstly, to do so

17 would contravene the basic principle of non-interference

18 that I have alluded to already. Apart from instructing

19 a police officer to arrest or not to arrest this

20 citizen, challenging the process of threat assessment

21 ranks highly amongst the types of interference by the

22 Executive in the operations of the police service.

23 That that was the position the NIO adopted can be

24 seen from the evidence of G115. He told the Inquiry

25 that in his experience in no particular case involving





1 the provision of threat assessments from the RUC for the

2 purposes of a KPPS application did the NIO ever ask

3 Security Branch for any of the details of the process of

4 assessment that had been undertaken. Day 67, page 64 at

5 line 11 and following.

6 THE CHAIRMAN: Do you accept that Mr Adams Ingram's

7 assumption that a threat assessment conducted by the RUC

8 would be a thorough, professional, sophisticated and

9 across-the-board assessment is what the NIO generally,

10 and officials generally, would have expected a threat

11 assessment to be?

12 MR BEER: Yes.

13 THE CHAIRMAN: And that is a sort of threat security

14 assessment that is done under the KPPS scheme, isn't it?

15 That is an across-the-board assessment both of threat

16 and risk?

17 MR BEER: Yes, with the Special Branch contributing in

18 particular to the threat and the Security Branch

19 adding --

20 THE CHAIRMAN: The risk element.

21 MR BEER: The risk element, albeit I don't think the Inquiry

22 has, so far as I'm aware, drilled down to the detail as

23 to the distinction between those and mechanically how

24 those things work, because certainly from my perspective

25 distinguishing between those two elements is an exercise





1 in logic that is difficult.

2 THE CHAIRMAN: Yes. Christine Collins, I think, attempted

3 to but it is very, very difficult.

4 MR BEER: I say that with respect to two pages of her

5 statement that she devotes to that exercise.

6 THE CHAIRMAN: Yes, thank you. Yes.

7 DAME VALERIE STRACHAN: Could I just ask one question about,

8 again, the constitutional position?

9 MR BEER: Yes.

10 DAME VALERIE STRACHAN: I understand the point that you are

11 making, which is that the police have their role and

12 that it is important that the NIO respect that role.

13 MR BEER: Yes.

14 DAME VALERIE STRACHAN: I'm having difficulty in, as it

15 were, taking from that that the NIO shouldn't seek to

16 understand the process.

17 I would have expected -- but please tell me if I'm

18 wrong -- that it would be a perfectly reasonable thing

19 for an NIO official to say to the police, "Could you

20 just, as it were, walk me through how a threat

21 assessment is conducted so that I understand it". Is

22 that an unreasonable thing for an official to do?

23 MR BEER: The answer is no, it is not an unreasonable thing

24 to do and doesn't interfere with the constitutional

25 precept that I have outlined. But there are two reasons





1 why it isn't, with respect, a relevant enquiry in this

2 context.

3 Firstly, there is the evidence that the Chairman of

4 the Panel has alluded to already, namely the assumption

5 of what was being done. It wasn't necessary to ask on

6 these occasions, "Tell us what the process was that you

7 have undertaken" because it was assumed that the process

8 that had been undertaken in all cases had been

9 undertaken in this one. And secondly, and more

10 importantly, nobody has suggested that there was

11 anything wrong or defective in the RUC's threat

12 assessment process in this case or in any other case.

13 So it wasn't as if the NIO were on notice to make

14 enquiries.

15 If there had been a succession of cases in which the

16 carrying out of these threat assessments had proved to

17 be imperfect or incorrect, then one might raise a case

18 for the NIO saying, "Look, you need to tell us exactly

19 how you are going about these things because it is clear

20 that things have gone wrong in the past".

21 DAME VALERIE STRACHAN: Yes, I understand the point that you

22 are making -- and you made it before -- which is of

23 course that we now have hindsight and we have had

24 a whole body of evidence which was not available to the

25 NIO at the time.





1 I think the question we have got to consider is, if

2 the NIO had known at the time how the process worked,

3 would Adam Ingram have said to us what he did say to us,

4 and the Chairman quoted the exact words, which implies

5 actually a much greater process --

6 MR BEER: Than in fact we know was undertaken. Yes. My

7 point was probably shrouded in subtlety.

8 I wasn't submitting, "Oh, well, now we know in fact

9 what occurred and we didn't know that at the time".

10 What I was saying was that there was no evidence of

11 a history of the NIO being dissatisfied with threat

12 assessments, of problems being raised in the public mind

13 as to the way that they were undertaken, with disasters

14 in the past that would put the NIO on notice to say,

15 "Hold on, stop. You have given us these short, quite

16 terse replies. You haven't explained the process that

17 you have undertaken. We want to be satisfied of the

18 process that you have undertaken."

19 So there wasn't something to set an alarm bell

20 ringing by reference to the pre-history.


22 MR BEER: A good way, we would respectfully say, of testing

23 these points is to examine the conduct of the NIO when

24 it received the threat assessment in relation to

25 Breandan Mac Cionnaith and Joseph Duffy. This is





1 a point I alluded to earlier in relation to their

2 applications for admission to the KPPS.

3 The Inquiry will recall the considerable volume of

4 evidence that it has received as to the political

5 imperative of providing security and protection to

6 Messrs Mac Cionnaith and Duffy. That was the provision

7 of security and protection being made a pre-condition to

8 the successful resumption of the July 1998 proximity

9 talks, that those talks were one of the key vehicles by

10 which the Drumcree issue, which obviously impacted on

11 the wider peace process, was being taken forward, that

12 in this regard it was hoped that a solution to the

13 recurrent Drumcree problem would be found and that in

14 all of this, the Prime Minister's Chief of Staff,

15 Jonathan Powell, was involved.

16 The threat assessment, just briefly dealing with the

17 chronology, was received by the NIO from Security Branch

18 on 31 August 1998. I wonder whether we could look that

19 up just briefly, please, RNI-305-184 (displayed).

20 That's the letter from Superintendent McAuley to G113 in

21 Police Division. In the bottom paragraph:

22 "The current level of threat in relation to both

23 is 4. Should the ceasefire situation collapse, it could

24 be assessed at level 3."

25 G115 wrote to Security Branch on 7 September 1998 --





1 that's RNI-305-216 (displayed) -- thanking him for his

2 letter noting that both were assessed as level 4. Then

3 you will read the middle paragraph. (Pause)

4 Now, you will recall in this respect that G115 gave

5 evidence that the initial reply from Security Branch,

6 which I have just shown you, was not the answer that

7 those involved in the proximity talks on the

8 Government's side would have wanted to hear, day 67,

9 page 72 at line 21. G115's letter here does not seek to

10 persuade Security Branch to change its mind, to come up

11 with a different assessment of the level of threat; it

12 simply draws attention to material to ensure it had been

13 taken into account.

14 The reply comes back -- if we can turn it up,

15 please, RNI-305-223 (displayed) -- thanking G115 for his

16 letter of 7 September. In the third paragraph:

17 "We have again analysed the risk of any potential

18 threat. Taking all matters into consideration, my

19 letter of 31 August remains extant, including the

20 assessed level for threat."

21 So no change in the threat assessment.

22 In all of this, G115 emphasised that he did not

23 relay to the Security Branch the political imperative

24 that security be provided to Messrs Mac Cionnaith and

25 Duffy. He did not pass on the concerns of the





1 negotiators, the desires of those involved in the

2 proximity talks to remove an obstacle to ensure that

3 security was provided or the urgent need to find

4 a solution to the pressing problem. And that was an

5 entirely proper way in which to behave and, in its own

6 small way, is a reflection of the constitutional

7 settlement. It ought, we say, to assist the Inquiry in

8 finding that there is a good reason why the Executive

9 ought not to be able to exert its authority over the

10 police for political or other ends.

11 The second half of the question relates to whether

12 the NIO were sufficiently challenging or critical of the

13 RUC's threat assessments and advice.

14 The families have submitted, at paragraph 14.46,

15 that the Panel should consider whether the NIO was

16 sufficiently critical of the information that it

17 received from the police in the February 1998 threat

18 assessment. And later, perhaps more suggestive of the

19 conclusion that the families wished the Panel to draw,

20 at 14.56:

21 "The failure by the NIO in the February threat

22 assessment process to hold the police to account and

23 ensure a full threat assessment was conducted to assess

24 the risk to Rosemary Nelson's life amounts to a failure

25 to provide appropriate and professional services to





1 Rosemary Nelson. It can readily be seen because the

2 threat allegations were not pursued in the manner and by

3 the people that Christine Collins would have chosen

4 resulted in Rosemary Nelson's case not being treated

5 with sufficient care and attention."

6 That submission appears at RNI-925-333.

7 The suggestion is flawed, we say, with respect, for

8 two reasons. Firstly, what is described by the families

9 is Christine Collins' understanding of the process by

10 which a threat assessment was to be undertaken for the

11 purposes of an application for admission to the KPPS;

12 not the process that was to be undertaken in all cases

13 where an alleged threat to a citizen had been referred

14 to the police for investigation and the assessment of

15 whether in fact there existed a threat to the life of

16 that citizen.

17 Second, the correspondence received from

18 Command Secretariat did not disclose on its face any

19 suggestion that any improper approach had been taken to

20 the assessment of whether there was a threat to

21 Rosemary Nelson. Given that the Command Secretariat was

22 effectively the office of the Chief Constable himself,

23 the NIO was in this regard fully entitled to assume that

24 within the RUC the appropriate processes had been

25 undertaken.





1 Question 7: what is the relevance and significance

2 of the suggestions made as to the allegedly conflicting

3 behaviour of Rosemary Nelson in this context?

4 We say that there are two reasons why the

5 conflicting behaviour that is set out in chapter 9 may

6 be relevant. Firstly, the Inquiry quite simply has

7 stated it wishes to get as close to the truth as is

8 possible and this, therefore, requires it to take into

9 account the whole ambit of the evidence received by it.

10 But, more importantly, in assessing the behaviour of the

11 NIO towards Rosemary Nelson, the Inquiry should take

12 into account what is now known but which was not known

13 to the NIO at the time when it was dealing with these

14 matters. This evidence may explain why the normal

15 overtures of the NIO in relation to matters of personal

16 security fell on deaf ears, in particular in the

17 response to Adam Ingram's letter of 24 September 1998.

18 The conclusion in relation to the totality of the

19 evidence is that the interaction between Rosemary Nelson

20 and the NIO was not intended, as far as she was

21 concerned, in fact to lead to personal security being

22 obtained for her from the NIO. The evidence as a whole

23 received by the Inquiry suggests that Rosemary Nelson

24 was not prepared to accept admission to the KPPS and

25 that other than an isolated example in the presence of





1 one of the international supporters at the airport, you

2 remember, where she, on two occasions, I think, checked

3 under the car for a bomb, she was not prepared to take

4 any steps in relation to her personal security, although

5 she was clearly aware of the steps that could be taken.

6 That leads into the first part of question 8, namely

7 was any advice about her security offered to

8 Rosemary Nelson at any relevant time. The Inquiry has

9 heard a great deal of evidence about this. I will

10 highlight only some small parts of it in two categories:

11 advice received from close associates and from the

12 police.

13 Close associates of Rosemary Nelson had given

14 evidence that they offered her personal security advice.

15 We set out the summary of that type of evidence in

16 chapter 8.16 of our submissions at RNI-921-052.

17 By way of example, Colin Duffy encouraged her to

18 check under her car, see RNI-804-124 at paragraph 26.

19 Dara O'Hagan told her, Rosemary Nelson, to do the same

20 and to keep her car in the garage and to check

21 underneath it, see Day 43 at page 72 to Day 43 at 75,

22 and paragraphs 46 and 47 of Dara O'Hagan's witness

23 statement at RNI-816-097.

24 Ita McCrory told her to check under her car, to

25 change her routine, at Day 17 at 23. Jane Winter told





1 Rosemary Nelson about putting up security lighting and

2 advised her to do so, see Day 28 at page 74, line 1 to

3 Day 28, page 74, line 9. Indeed, Jean Forest of US

4 Voice has confirmed to the Inquiry that when

5 Rosemary Nelson picked her up from Belfast International

6 Airport on her first visit, she, Rosemary Nelson,

7 checked under her car for bombs when she took

8 Jean Forest to her car in the car park, see RNI-806-016

9 at paragraph 8. Jean Forest further confirmed to the

10 Inquiry that Rosemary Nelson performed similar checks

11 every time they were together, see RNI-806-016 at

12 paragraph 8.

13 Therefore, Rosemary Nelson knew of, and at least

14 during the visits of this American supporter, took the

15 relevant step of checking under her car for bombs.

16 If Jean Forest's evidence is accurate in this

17 respect, then regardless of Rosemary Nelson's motive in

18 being seen to perform this check under her car, given

19 the magnitude of other evidence indicating that she did

20 not do this as a matter of routine, it is clear that

21 Rosemary Nelson had received and was aware of the type

22 of security advice that would commonly be given in

23 Northern Ireland at the time.

24 Additionally in relation to the police, the Inquiry

25 has heard of two occasions, leaving aside the incident





1 in 1993 referred to in Justice Cory's report, when a

2 local crime prevention officer attempted to attend on

3 Rosemary Nelson to give advice when the police were made

4 aware by Rosemary Nelson herself that she felt unsafe or

5 under threat and offered to investigate that matter and

6 give her help. First during the ICPC supervised

7 interview in September 1997, Rosemary Nelson alleged to

8 officer P146 that she didn't feel safe in her home. He

9 offered to investigate this and to look into protection

10 for her home. She refused his offer there and then, see

11 Geralyn McNally's evidence at Day 48 at page 117 to 118

12 and paragraph 27 of her witness statement at

13 RNI-813-819. See also Jennifer Mitchell, who was

14 present, her statement at RNI-802-128, paragraph 48,

15 where she says that the reason for the refusal given by

16 Rosemary Nelson was because Paul Nelson would not want

17 the police around the house.

18 Secondly, on 21 September 1998 during one of the

19 Mulvihill interviews, DS Neligan had produced to him the

20 original threat note, Rosemary Nelson having described

21 herself as terrified. DS Neligan pulled the original

22 across the table with his pen and asked if

23 Rosemary Nelson wanted the police to investigate it.

24 Rosemary Nelson said no, she declined. See in that

25 regard, Jennifer Mitchell's statement at RNI-802-137,





1 paragraph 70. And this was just over four weeks after

2 Paul Mageean had provided the NIO with a poor copy of

3 the very same threat note under cover of the letter of

4 10 August.

5 These two incidents go to a matter to be addressed

6 later in the submission and we say that they demonstrate

7 that Rosemary Nelson declined all known offers of

8 assistance, which is consistent with the evidence

9 available as to her general attitude towards security

10 and assistance.

11 The second part of the question: whether any other

12 steps taken by the NIO, for example, to reduce risk to

13 her safety and if not, why not. In relation to this, we

14 say that whilst the question perhaps has application to

15 other agencies, it is proposed to answer it only by

16 reference to the NIO. In answering it, the NIO asked

17 the Panel to leave out of its mind what is now known

18 about Rosemary Nelson's attitude to the likes of, for

19 example, KPPS. It is submitted that it is necessary to

20 recognise the difference between an actual risk to

21 a person's safety and an alleged risk to a person's

22 safety, which may not be reality, no matter how many

23 people talk about it.

24 With hindsight, it is now clear that there was

25 a risk to Rosemary Nelson's safety from terrorists.





1 When that risk actually arose and when it became real

2 is, we say, still entirely unclear on the evidence.

3 Just as the police had no intelligence about the murders

4 of two police officers in Lurgan in June 1996, evidence

5 has been repeatedly given to the Inquiry that the

6 politician had no intelligence of a terrorist threat to

7 the life of Rosemary Nelson. That was in turn passed on

8 to the NIO and was the basis on which the NIO approached

9 matters because it was the information it received from

10 those best placed to give it.

11 In contrast, as it appears to the NIO, there is

12 equally no intelligence or evidence that there was ever

13 an actual threat to Rosemary Nelson arising from the

14 threats alleged to have been made against her through

15 her clients by police officers.

16 There are two important points to note from what

17 I've just said, we would say. Firstly, it shouldn't

18 have mattered to officials in the NIO in the passing on

19 of the allegation of threats to Rosemary Nelson whether

20 they were true or not. Third parties were raising

21 matters relating to a citizen's personal safety and the

22 NIO was obliged to pass that information to the police

23 for investigation and action. Officials were in no

24 position to judge the validity of the claims made about

25 the nature and the extent of the threat, but that's





1 exactly what the NIO did: it didn't judge.

2 On each occasion, sometimes proactively, the

3 evidence shows that the NIO took at face value and

4 passed on the allegations of threats to Rosemary Nelson

5 and the alleged risk to her personal safety to those

6 best placed to deal with it.

7 Secondly, and in contrast, in making its decisions

8 as to the operation of the likes of the KPPS, it would

9 not have been a proper position for the NIO to have

10 simply taken the allegations at face value and to have

11 worked on the basis that if it was alleged that a person

12 was under threat and their personal safety was at risk,

13 that this was the case regardless of however many people

14 said it. So the mere making of an allegation of risk or

15 threat does not secure entry to the KPPS.

16 Recognising this reality is important when one

17 considers the allegation made in paragraph 16.3 of the

18 family's submissions. I wonder whether we could look at

19 that, please -- RNI-925-358 (displayed) -- and it is

20 paragraph 16.3, please. In what the Inquiry may regard

21 as a rather sweeping statement, it is said:

22 "The Panel should consider it to be a significant

23 failure by the NIO to admit Rosemary Nelson to the

24 scheme in circumstances where they were aware, or ought

25 to have been aware, of a serious and explicit threat to





1 her from Loyalist paramilitaries."

2 Then footnote 3 is given as the source for that

3 assertion, which takes you down to the statement of

4 Christine Collins at paragraph 64:

5 "This amounts to failure by the NIO to satisfy its

6 obligations under Article 2 of the ECHR."

7 We say that this submission from the families bears

8 some close scrutiny. First, it presupposes that

9 Rosemary Nelson was prepared to be a part of the KPPS.

10 This is simply not supported by the evidence at all and

11 is, therefore, completely unrealistic on those grounds.

12 Second, insofar as it suggests that Rosemary Nelson

13 should have been admitted to the KPPS, it is clear that

14 she never applied even though she knew how to make an

15 application. How to make an application was clearly

16 brought to her attention by the NIO, for example, in

17 Adam Ingram's letter to Paul Mageean of

18 24 September 1998 at RNI-106-324. You will recall that

19 that suggestion was briskly dismissed as absurd.

20 Third, it suggests that the NIO was aware of

21 a serious and explicit threat to Rosemary Nelson from

22 Loyalist paramilitaries. The Panel will see that in

23 that statement:

24 "The Panel should consider it a significant failure

25 by the NIO to admit Rosemary Nelson to the scheme in





1 circumstances where they were aware ..."

2 I will leave out "or ought to have been aware" at

3 the moment:

4 "... when they were aware ... of a serious and

5 explicit threat to her from Loyalist paramilitaries."

6 The source for that is given as footnote 3.

7 I wonder whether we could turn that up alongside,

8 please, RNI-841-235 (displayed). So the footnote

9 purports to give us support for the submission made,

10 paragraph 64 of Christine Collins's statement. I wonder

11 whether the Panel could just read that, paragraph 64.

12 THE CHAIRMAN: It is about senior post holders?

13 MR BEER: I'm sorry?

14 THE CHAIRMAN: It is about all these post holders were know

15 to be -- it's that passage, is it?

16 MR BEER: Yes. (Pause)

17 Sir, the submission has been made that the NIO was

18 aware of a serious and explicit threat to

19 Rosemary Nelson arising from Loyalist paramilitaries,

20 and the source given for that is this paragraph of

21 a statement.

22 It says nothing of the sort, nor does anything else

23 in Christine Collins' witness statement or evidence.

24 THE CHAIRMAN: You would no doubt accept, would you, as

25 a matter of law that if the State is aware of, or should





1 be aware, that one of its citizen's life is under

2 a significant threat having regard to all the

3 circumstances, the State is under an absolute duty to

4 take proportionate steps to prevent the threat being

5 realised, but it depends on knowledge or awareness,

6 doesn't it, or presumed awareness?

7 MR BEER: Yes. Sorry to, as it were, go legal on the Panel

8 mid-submission, but I would frame it like this: the

9 submission here by the families suggests that an

10 obligation under Article 2 arises where a serious and

11 explicit threat is made. That misunderstands the nature

12 of the test to be applied under Article 2 of the

13 convention, in that the actual test is whether the State

14 knew or ought to have known of a real and immediate

15 risk, not a serious and explicit one. See

16 Osman v United Kingdom, see Van Colle v Chief Constable

17 of Hertfordshire, see Savage v South Essex Partnership

18 NHS Trust and see Mitchell v City of Glasgow Council.

19 We will provide those four later.

20 THE CHAIRMAN: If the State or an agent of the State has

21 some involvement in increasing the threat or the risk,

22 that is a factor to be taken into account, isn't it?

23 I'm not suggesting for one moment that that is the

24 factual situation here, but if an organ of the State

25 increases the risk to one of its citizens, that does





1 increase the obligation, doesn't it?

2 MR BEER: That was once thought to be the position in law.

3 See the Court of Appeal's decision in Bloody Sunday,

4 number 2. That has since been disapproved in re L, with

5 where it held that there was a unified test no matter

6 where the risk arose from. There wasn't a lower

7 threshold to be passed on what amounts to a real and

8 immediate risk. Alternatively there wasn't a superadded

9 duty on the State to take additional steps if it was the

10 author of risk. That was confirmed in Van Colle and

11 Savage v South Essex Partnership NHS Trust, both of

12 which decisions we will provide you.

13 Sir, you were correct, that was once the position

14 that there was a stratified approach dependent on where

15 the threat emanated from. That approach has now been

16 disapproved.

17 THE CHAIRMAN: Thank you.

18 MR BEER: Insofar as it is suggested that the NIO was aware

19 of a serious and explicit threat or, in the proper

20 language of convention, a real and immediate risk, that

21 is simply wrong; the NIO was not aware of it. There

22 isn't any evidence that we were aware of a real and

23 immediate risk.

24 We would ask you, when the cases I have mentioned

25 are provided to you, in no case did either the European





1 Court, or the House of Lords in the latter three cases,

2 find that there had been a breach of the convention,

3 despite, as you will read, the exceptionally extreme

4 circumstances which led to the allegation that the

5 individual concerned was at real and immediate risk.

6 We would ask the rhetorical question that if in

7 those cases the courts found that there was no real and

8 immediate risk to the individuals concerned, which it

9 did, how much more so would it if it was considering the

10 position of Ms Nelson?

11 Fourth, insofar as this submission suggests that the

12 NIO ought to have been aware that there was a serious

13 and explicit, or real and immediate risk to

14 Rosemary Nelson from Loyalist paramilitaries, we would

15 submit that that was wrong as well. Paragraph 64 of

16 Christine Collins does not support that probable

17 significance either. No attempt is made to indicate how

18 the NIO ought to have known of the serious and explicit

19 threat. The evidence gathered by the Inquiry clearly

20 shows that the NIO was being expressly told the opposite

21 on no less than three occasions over a protracted

22 period. On what basis should the NIO have assumed that

23 this information was wrong and decided to come to

24 a different view of its own volition.

25 Question 9: would Rosemary Nelson have accepted any





1 such advice or any security measures had they been

2 offered to her? Would she have followed any advice?

3 The short answers to these questions we would say are no

4 and no. On two timelines the answer is no. First, at

5 the time that the NIO was dealing with the alleged

6 threats it was considered that since Rosemary Nelson did

7 not engage directly with the NIO she wasn't interested

8 seriously in obtaining any assistance from them. And

9 the second is in the light of all the evidence that the

10 Inquiry has heard, the first position has been

11 emphatically affirmed; in particular Mr Nelson,

12 Paul Nelson, confirmed to the Inquiry that no security

13 precautions were taken around the home whatsoever, see

14 Day 41 at page 123. This is despite what

15 Rosemary Nelson said to the US Congress

16 in September 1998.

17 Could we just have up to the screen, please,

18 RNI-113-059? (Displayed) And if you can rotate that, please. Look

19 at the left-hand side, about the bottom ten lines from

20 Ms Nelson:

21 "No, I didn't."

22 You will see the exchange there, and just at the

23 bottom of that exchange:

24 "Wouldn't it be appropriate for you under these

25 circumstances to make such a request for security since





1 your life has been threatened?

2 "Answer: Possibly, but to be perfectly honest, I'm

3 not sure I would use a firearm."

4 Then she says this:

5 "I have taken certain precautions around the home."

6 Paul Nelson confirmed that no security precautions

7 were taken around the home whatsoever.

8 Second, Mr Nelson confirmed to the Inquiry that

9 Rosemary Nelson was aware of the general risk that she

10 faced like anyone living in Northern Ireland at that

11 time, Day 41 at page 140 and following. Mr Nelson

12 confirmed that he and his wife had discussed making an

13 application for a personal protection weapon and had

14 decided as a lifestyle choice that they would not apply,

15 see Day 41 at pages 127 to 128. And in this regard, it

16 is to be noted that Rosemary Nelson knew very well the

17 process for applying for a personal protection weapon

18 because she had made application on behalf of

19 Breandan Mac Cionnaith and Joseph Duffy, see

20 RNI-305-150.

21 Next, Mr Nelson confirmed that he and Mrs Nelson had

22 discussed KPPS and decided that she wouldn't be applying

23 to the scheme, Day 41 at page 127. Jane Winter

24 discussed the KPPS with Rosemary Nelson

25 in February 1997, but Rosemary Nelson considered and





1 dismissed this option, Day 28 at page 72, line 17 and

2 also paragraph 29 of Jane Winter's witness statement at

3 RNI-824-027.

4 Sixth, Jane Winter had a conversation about a

5 personal protection weapon, but it was decided that this

6 was not an option, Day 28, page 73 at line 1 and

7 following. Seventh, Eamonn McKee from the Irish

8 Government, who was regularly in contact with

9 Rosemary Nelson, explained that because Rosemary Nelson

10 was not prepared to accept KPPS he couldn't take it to

11 the next stage and petition the NIO on her behalf, see

12 Day 26, page 88 and following.

13 In September 1998, Paul Mageean received a letter

14 from Adam Ingram dated 24 September 1998, setting out

15 the personal security measures that Rosemary Nelson

16 could seek. He -- that is Paul Mageean -- confirmed

17 that in relation to the KPPS, Rosemary Nelson dismissed

18 it out of hand and regarded the suggestion as absurd,

19 Day 24, page 167 at line 1 and Day 24, page 169 at

20 line 18 and following.

21 Lastly, Rosemary Nelson may have known, depending on

22 whether Breandan Mac Cionnaith informed her about

23 developments on this front, that security protection

24 through the Rowntree Trust was available to her from

25 about November 1998. In this regard, we would invite





1 you to read chapter 6 of the NIO's written submissions.

2 It is not known whether Rosemary Nelson did not take up

3 this offer of the provision of security and protection

4 outside organs of the State because of a failure by

5 Breandan Mac Cionnaith to inform Rosemary Nelson about

6 what he had been told, namely security and protection is

7 available funded outside organs of the State, or because

8 Breandan Mac Cionnaith did tell Rosemary Nelson but she

9 decided not to accept it. The Inquiry will never know

10 because Mr Mac Cionnaith won't assist the Inquiry.

11 It is noted in this regard that paragraph 14.39 of

12 the family's submissions says:

13 "A police visit would have alerted Rosemary Nelson

14 to the fact that she was known to Loyalist

15 paramilitaries."

16 It may have alerted her to the fact that the police

17 regarded her as being close to the Republican movement

18 and this would have influenced her next steps as to her

19 own safety.

20 We would respectfully say that the logic in those

21 two assertions isn't borne out, is confused and is

22 contradicted by the wealth of the other evidence that

23 I have just put before the Panel. In particular, it

24 completely leaves out of account the conversation which

25 Mr Mageean had with Rosemary Nelson specifically about





1 KPPS in which she abruptly and dismissively discounted

2 the prospect of applying for KPPS, regarded the whole

3 thought of an application as being absurd.

4 Accordingly, there was nothing, certainly nothing

5 raised in that paragraph, which was likely to have been

6 so important to have caused Ms Nelson to have changed

7 her mind from what seemed to be a very sure and static

8 view about general security measures open to her in

9 general and particularly in relation to an application

10 to the KPPS.

11 Lastly and briefly, should the Panel make

12 recommendations in relation to any matter which it has

13 considered and, if so, what recommendations. The NIO

14 respectfully submits that there is no practical or

15 beneficial need for the Inquiry to make recommendations

16 in relation to matters concerning the NIO, and this is

17 for a number of reasons.

18 First, the events with which the Inquiry is

19 concerned occurred between ten and 13 years ago.

20 Second, there have been significant changes in the

21 Province in those ten to 13 years. The Inquiry will be

22 familiar in very general terms with many of those

23 changes. In the present context, it is sufficient just

24 to mention them by name: the creation of the PSNI;

25 changes in the relationship between the Government and





1 the police service -- there were significant changes

2 wrought by the Police (Northern Ireland) Act 1998 and

3 then the Police (Northern Ireland) Act 2000 -- the

4 creation of the office of the Police Ombudsman; the

5 creation of the Policing Board and the accountability of

6 the police service to the public through the Policing

7 Board, which is the vehicle which Parliament has chosen

8 to ensure such accountability and responsibility; the

9 reallocation of responsibility for the assessment of

10 threats from the police service to the Security Service

11 and, perhaps most importantly, devolution.

12 In this respect, thirdly, the Inquiry has not, for

13 very good reasons, examined the nature and extent of

14 those changes and what the position would be today or

15 should be today were similar events to occur today. In

16 short, given the evidence that the Inquiry has heard

17 relates to historic institutions and historic

18 relationships and which doesn't take into account the

19 changed environment, the changed legislative structure,

20 and the changed allocation of responsibilities between

21 State agencies, it is respectfully suggested that

22 recommendations don't fall to be made in the case at

23 least of the NIO.

24 Those are the submissions that I make on behalf of

25 the NIO. The Panel has raised questions as I proceeded.





1 Is there any other matter that I can assist with?

2 THE CHAIRMAN: First of all, I would like to congratulate

3 you on your timing.

4 MR BEER: I know that's a matter very close to your heart.

5 THE CHAIRMAN: What I was going to say was that I think it

6 would assist the Panel if we adjourned now and

7 considered whether there are any points we wish to raise

8 with you after the adjournment. So we will adjourn

9 until 2 o'clock.

10 Mr Harvey, not by way of commandment, but you might

11 like to consider what I said and what Mr Beer said about

12 some of the detail --

13 MR HARVEY: Indeed.

14 THE CHAIRMAN: Thank you very much.

15 (12.59 pm)

16 (The short adjournment)

17 (2.00 pm)

18 THE CHAIRMAN: Yes, Mr Beer?

19 MR BEER: Sir, I gave you a partial answer to your question

20 earlier.


22 MR BEER: And in doing so noted that I had an imperfect

23 recollection.

24 Sir, yours was perfect in this respect: you recalled

25 that John Steele had said words to the effect of telling





1 the Chief Constable to get a grip. The exchange is as

2 follows and it comes in the context of the fallout from

3 the Cumaraswamy Report. Mr Steele didn't remember

4 having a conversation with the Chief Constable

5 afterwards specifically; he didn't recollect whether he

6 had or he hadn't. He thought that he would have done,

7 but he couldn't remember the details of it. So

8 Mr Phillips asked him what he would have thought he

9 would have discussed, and he said:

10 "Can I ask you then, what do you think you would

11 have discussed with him in relation to the whole

12 Cumaraswamy issue?

13 "Answer: It would have been the whole business of

14 intimidation of lawyers and tell him if it was

15 happening -- or if it wasn't happening still -- get

16 a grip on your people and make sure it doesn't happen.

17 "Question: So it would have been a much more

18 general conversation.

19 "Answer: Absolutely."

20 That's Day 74, page 101 at line 13 and following.

21 THE CHAIRMAN: Thank you. I think Sir Joseph Pilling said

22 that that was the sort of thing he would have expected

23 Mr Steele to have said and done.

24 MR BEER: Yes, bearing in mind -- I think he used the phrase

25 the robustness of the relationship.





1 THE CHAIRMAN: Yes. Thank you.

2 Questions by THE PANEL

3 SIR ANTHONY BURDEN: Can I start by just pursuing that

4 point, if I may?

5 MR BEER: Yes.

6 SIR ANTHONY BURDEN: I can only speak from my experience,

7 but chief constables in Wales and England are very

8 robust defenders of their independence, but it would be

9 true to say that if the Home Office became aware of

10 a situation in a particular police service where the

11 impact or the fallout of that situation was likely to

12 impact not only on the police service but on the Home

13 Office and Government, that a way would be found to

14 address the issue with the Chief Constable at the

15 appropriate level. And I'm not suggesting for one

16 moment that the Civil Service would attempt to interfere

17 in the independence of the Chief Constable. A robust

18 conversation would take place and the thinking of the

19 Chief Constable would be tested in that conversation.

20 Now, we have just heard from you in response to the

21 Chairman that that robust relationship did exist, it

22 would appear, between the Chief Constable of the RUC and

23 Mr Steele and it does, therefore, just beg the question

24 why that robust relationship, as it related to the

25 specific issue that was discussed before us, didn't





1 extend to a broader robust relationship in relation to

2 issues as they specifically related to Rosemary Nelson.

3 MR BEER: I think probably the answer is given almost by the

4 question: that it is one thing to say, as that exchange

5 demonstrates, that there is an issue which needs to be

6 addressed at a high level of generality, that without

7 making a pre-judgment, using the words of John Steele,

8 whether it is happening or not happening still, you need

9 to get a grip on your people, as opposed to interfering

10 in the individual circumstances of a particular case.

11 And I would ask the Panel to draw that distinction.

12 SIR ANTHONY BURDEN: You see, it just strikes me that,

13 having had the tragic death of Pat Finucane and the

14 obvious implications of that and, as part of it, the

15 political implications which must have impacted upon the

16 Northern Ireland Office, having seen that occurrence

17 take place, that here was another situation with another

18 prominent lawyer, that sort of political antenna didn't

19 start to rise in relation to all the information that

20 was around in relation to Rosemary Nelson.

21 MR BEER: I would say that the antennae did more than rise.

22 They were positively twitching, because one can see the

23 proactive steps that the NIO took including, for

24 example -- and the Chairman was right to remind me of

25 it -- exactly that kind of conversation: an official





1 telling a police constable to get a grip on his people.

2 DAME VALERIE STRACHAN: Just to follow through on that, you

3 have described the steps that were taken and they were,

4 if I can put it this way, very proper steps but taken in

5 quite a low-key fashion.

6 I wondered also about whether in the

7 Northern Ireland Office, which is a very politically

8 aware department, as I know, they aren't actually

9 positively thinking, "Look, the Pat Finucane case has

10 impacted on us for years. We have been picking up the

11 pieces, we really don't want another one like that."

12 And can you point to that sort of thinking because

13 I must admit I haven't been able to see it come through

14 very clearly in the evidence we have had?

15 MR BEER: No. I think there are two answers to that.

16 Firstly -- and this isn't a criticism -- I don't think

17 witnesses have been asked with those very specific

18 frames of mind as part of the questions. So the absence

19 of evidence doesn't necessarily equate to the evidence

20 of absence. It doesn't mean that people weren't

21 thinking like that, but both the members of the Panel's

22 questions haven't been asked in that focused way. So in

23 a sense, you are searching for snippets of oral evidence

24 or material on the documents to fill in that void.

25 The second point is insofar as that issue has been





1 addressed, many of the NIO officials have said that what

2 Government was doing was attempting to address these

3 issues at a very high level by a process of reforms

4 which themselves sat within the delicate political

5 balance of the day.

6 So they were attempting to reform the holding

7 centres, introducing silent video recording, audio

8 recording, all of which things have a indirect impact on

9 the ability of -- if it was occurring -- officers to

10 make degrading or threatening remarks to a detainee

11 about their solicitor or, alternatively, for detainees

12 to manufacture such allegations.

13 So that's on the one hand. Then, on the other hand,

14 you have got the reform of the RUC itself. You have got

15 the creation of a new institution for the investigation

16 of complaints, the Police Ombudsman, the interaction of

17 a new system of accountability through the Policing

18 Board, much more intrusive than any police authority in

19 England or Wales. So one has, one can see, a whole

20 range of measures that have the indirect effect of

21 addressing some of the issues with which you are

22 concerned.

23 THE CHAIRMAN: Wouldn't it have been possible for a senior

24 member of the Police Division or Mr Steele himself to

25 have said, "Well, there is a potential problem,





1 a potential risk, so far as Rosemary Nelson is

2 concerned, which would have wide ramifications. We

3 appreciate that there is no specific risk or specific

4 threat known against her, we appreciate that she hasn't

5 made, and is maybe unlikely to make, a formal

6 application for membership of the KPPS, but it would

7 certainly assist us if it were possible for you to carry

8 out a full threat/risk assessment as is done in the

9 cases of those who apply for KPPS."

10 Speaking for myself, assuming that assessment was

11 thorough and entirely frank, almost inevitably she would

12 have reached level 3. That is a significant threat

13 level. But certainly no approach of that kind was made

14 really on the robust conversations that take place. And

15 whether that should be a matter of criticism or is

16 really an observation with hindsight is a matter we will

17 have to consider.

18 MR BEER: If I can try and help you in relation to this,

19 again I think I can say two things. The first is there

20 were probably hundreds, if not thousands, of people that

21 fell within the same category, namely the death or

22 murder of which would have a significant political

23 impact.


25 MR BEER: So that if it was thought that this case should





1 have been singled out for such attention, then the

2 hundreds or thousands of others also ought to have been.

3 The only distinguishing feature is now that we know, in

4 fact, what happened to Rosemary Nelson.

5 THE CHAIRMAN: This would be a private assessment for the

6 department?

7 MR BEER: Yes, but why not a private --

8 THE CHAIRMAN: So it was forewarned.

9 MR BEER: Why not a private assessment for other solicitors

10 conducting high profile work, people engaged in

11 decommissioning, people on the margins of terrorist

12 organisations who were eventually coming over to the

13 State side of thinking, why not priests who had engaged

14 in negotiating activities? I can understand, and the

15 NIO understands, why the question is asked but it is in

16 fact asked because we know what happened.

17 THE CHAIRMAN: It is the floodgates argument.

18 MR BEER: No, it is not. It is not a question of saying we

19 don't want to widen out our scheme for all of these

20 people thereby opening the floodgates, costing money.

21 It is not that at all. It is -- and this is the second

22 part of the answer -- there wasn't anything to identify

23 it, but on the basis of the risks assessments, the

24 results of which the police provided to the NIO, were

25 that they were in any way defective. What the question





1 presumes is now knowledge of the alleged deficiencies in

2 the threat assessments that in fact occurred.

3 THE CHAIRMAN: But that was a specific threat and a threat

4 assessment, as opposed to a security department overall

5 assessment?

6 MR BEER: But level 3, it still is general intelligence,

7 circumstances or recent events indicating a significant

8 threat to the subject. Not a risk, a generalised risk.


10 MR BEER: Or a heightened risk compared to other people. It

11 is a significant risk to this subject.

12 THE CHAIRMAN: Which is different from a specific risk?

13 MR BEER: Yes.

14 THE CHAIRMAN: Or specific threat?

15 MR BEER: Yes, the Panel in this respect, I think, is --

16 I have heard the comment that you have made already,

17 sir, that almost inevitably it would have come back at

18 level 3. I don't think the Panel has heard any evidence

19 from, for example, somebody in Security Branch. I think

20 it was Mr McAuley was the relevant witness who I don't

21 think was called in this respect, who would have been in

22 a position to assist the Panel on that. I don't think

23 the Panel has heard evidence that had the broader TRA,

24 threat/risk analysis, that you are contending for, would

25 have come back at this level.





1 THE CHAIRMAN: Christine Collins seems to have thought that

2 if there had been an application under the KPPS, that as

3 a matter of discretion she might have been allowed into

4 the scheme.

5 MR BEER: Can I just return to an answer, which I'm

6 helpfully reminded to supplement by my learned junior:

7 of course, one has the good example of the position in

8 relation to Messrs Mac Cionnaith and Duffy and

9 everything that the Panel knows about them and the

10 threat or risk towards them, and that came back at

11 level 4 twice.

12 THE CHAIRMAN: Which I appreciate, yes.

13 MR BEER: Twice. So the inevitability about which you

14 spoke, sir, I'm not sure is fully grounded in the

15 material before the Panel.


17 DAME VALERIE STRACHAN: Just a small point to tidy up: you

18 did point out that in some ways the only difference

19 between Rosemary Nelson and hundreds, maybe thousands of

20 the people in the Province who were doing things which

21 would put them at risk, was that we know what happened.

22 It does seem to me that she was in a different

23 position, if only because the Northern Ireland Office

24 had got lots of letters expressing specific anxiety

25 about her. And it is in that context that the tragic





1 death of Pat Finucane is quite important, that, you

2 know, one of the articles after Rosemary Nelson died

3 I think was headlined "Tragedy of a Death Foretold" and

4 one could see the possibility: what if she died, where

5 do we stand then? That seems to me to be the difference

6 between her and many other extremely worthy people who

7 were also at risk.

8 MR BEER: Yes. That question, which I fully understand --

9 that statement which I fully understand, really points

10 towards the NIO protecting itself from future

11 allegations by taking steps to ensure that her case in

12 particular, because so many letters had come in, so much

13 attention had been drawn to her, that she was in

14 a different category. That is an unprincipled approach,

15 protection of the department, to look after --

16 THE CHAIRMAN: Watching their back rather than

17 Rosemary Nelson?

18 MR BEER: Yes. It is, because at the moment we are assuming

19 that there was an equivalent level of threat or risk to

20 the hundreds or thousands of other people who were doing

21 worthy activities that may have put them at an elevated

22 risk. Simply because as much attention hadn't been

23 drawn to their activities because international

24 organisations hadn't come behind them, oughtn't to

25 distinguish Rosemary Nelson, unless one is looking at





1 this from the perspective simply of protectionism,

2 i.e. self-protectionism.

3 DAME VALERIE STRACHAN: Yes, I think that is implicit, but

4 actually government departments do do that kind of risk

5 analysis: what if this goes wrong, where do we stand?

6 That is not an improper thing to do. It is not to

7 suggest that wrong actions should have been taken in

8 relation to Rosemary Nelson. The question is whether

9 one would want to do the extra bit of thinking to make

10 sure that the right things had been done.

11 MR BEER: Yes, I suppose my submission really is that

12 Rosemary Nelson may, therefore, have secured

13 protection -- and this is all subject to a number of

14 very big assumptions -- by dint of a back-covering

15 exercise or, you put it slightly more worthy than

16 that -- between analysing reputational risk to

17 a government department, as opposed to a genuine

18 analysis of the risk to her, leaving out of account the

19 hundreds and thousands of other people at equivalent or

20 greater risk but who still didn't fall within the scheme

21 provided by the Government.

22 Incidentally, I didn't answer your question, sir,

23 about Christine Collins thought that it was very

24 probable on a hypothetical basis, if there had been an

25 application -- one has got to read that evidence of





1 Christine Collins very, very carefully indeed. It is

2 Day 61, page 57 at line 1 to Day 61, page 59, line 20,

3 because she says:

4 "I think our recommendation would probably have

5 been -- you know, it seems to us this would have been

6 a worthwhile thing to do."

7 And what she factors into that is that there would

8 have been political benefit to it occurring, but she

9 didn't identify that political benefit and nobody at the

10 time was identifying the political benefit for it to be

11 done, in the same way as in relation to

12 Messrs Mac Cionnaith and Duffy.

13 One has got to also -- and we have set this out in

14 the submissions -- bring into account the other views of

15 ministers and officials, namely Adam Ingram,

16 John Steele, Ken Lindsay, Stephen Leach, their views on

17 the hypothetical question which are set out in the

18 submissions at page 91 and following.

19 THE CHAIRMAN: Christine Collins has a particular expertise

20 because she had shared the working group

21 in September 1996, hadn't she, on the KPPS and was Head

22 of the Police Division for many, many years, something

23 like, I think, 1993 to 1998, wasn't she?

24 MR BEER: Yes, but one again has a useful mirror to hold up

25 to this exercise in the form of Messrs Mac Cionnaith and





1 Duffy because in those -- ultimately, as you know, under

2 the KPPS, decisions were for the ministers or, in some

3 cases, the Secretary of State. One can see exactly what

4 happened in the Mac Cionnaith and Duffy case: the

5 Secretary of State said no in the first instance and had

6 to be assisted in reaching a different conclusion.

7 So simply because one witness, who in fact on the

8 chronology was out of office at the relevant time,

9 formed the view that the recommendation would probably

10 have been that this was a worthwhile -- it seemed to us

11 to be a worthwhile thing to do to admit her. That was

12 all part of a package by which Rosemary Nelson was

13 proactively engaging with the NIO and saying, "Yes,

14 I want such protection", which itself would be seen as

15 a signal to the NIO upon which it could act and would

16 carry political weight. But none of that occurred.

17 THE CHAIRMAN: Thank you.

18 SIR ANTHONY BURDEN: Can I raise a point at your chapter 9,

19 the conflicting behaviour of Rosemary Nelson.

20 In your submission, you have invited the Panel to

21 consider a series of points relating to

22 Rosemary Nelson's perceived behaviour and possible

23 motives for that behaviour as it related to her own

24 safety and threats made against her. However, that only

25 takes me so far and leaves the issue open. Would you





1 like to suggest what conclusions I should draw from the

2 points which are contained in your submission in

3 chapter 9?

4 MR BEER: It is reasonable for the Panel to conclude that in

5 her interactions with the NIO through third parties,

6 Rosemary Nelson was not concerned to achieve protection

7 or security.

8 SIR ANTHONY BURDEN: I think then we move on to motive,

9 don't we, as to why, you perceived, she adopted that

10 stance?

11 MR BEER: Yes. That is not a necessary part of my

12 submission. It doesn't matter in fact on my submissions

13 what her motive was for doing it. We don't say what it

14 was because we don't know. But the important point

15 is --

16 THE CHAIRMAN: We don't want to speculate?

17 MR BEER: No.

18 THE CHAIRMAN: Why not?

19 MR BEER: Because one is faced with a conflicting body of

20 evidence which ranges from she was concerned about her

21 personal security and was worried about it to, at the

22 other end of the spectrum, she had no concerns. Others

23 were saying that in the middle of this she had concerns

24 but felt that she could deal with it by raising her

25 profile internationally and that would provide a measure





1 of protection for her, all of which are possibilities.

2 And we don't have the available evidence to make

3 a positive submission on it. And the NIO does not want

4 to over submit.

5 SIR ANTHONY BURDEN: If I can just pursue this point to its

6 natural conclusion, the word "motive" is contained in

7 your submission. It is not a word I have attached to

8 it. Of course, it would be of great significance to me,

9 and possibly my colleagues, were you to be suggesting

10 that there was a motive attached to Rosemary Nelson's

11 behaviour which impacted upon her character or any of

12 the other issues that we, as a Panel, are considering.

13 As I say, the word "motive" was yours, which you

14 have used, not mine.

15 MR BEER: Yes, and you will see that the submissions

16 assiduously do not ascribe a motive to her conduct. It

17 is simply the fact that the totality of the evidence,

18 the product of all of the evidence, is the conclusion

19 that I asked the Panel to draw: that in the requests for

20 security and protection, there wasn't a genuine desire

21 that they be provided.

22 DAME VALERIE STRACHAN: Yes. Chapter 9, though, is not

23 about whether she did or didn't want protection.

24 Chapter 9 introduces a whole lot of other things that

25 you are mentioning about her. Would you like to comment





1 on those? You appear to be inviting us to form

2 conclusions about her character generally.

3 MR BEER: If that's the way the submissions have been read,

4 that was not the intention.


6 MR BEER: Yes. Yes, we are not asking the Panel to form any

7 wider conclusions about her character.

8 SIR ANTHONY BURDEN: Can I finally just refer back to the

9 issue of the request for security coming from the GRRC,

10 if I may, for a moment?

11 MR BEER: Yes.

12 SIR ANTHONY BURDEN: I know you enlarged on that this

13 morning, very helpfully. It has been discussed this

14 afternoon, but there is just one specific point if I may

15 raise it.

16 MR BEER: Yes.

17 SIR ANTHONY BURDEN: You quite properly said this morning

18 and referred to the political imperative around finding

19 a solution to the Drumcree problem. In fact, that's

20 referred to in submission, and elsewhere in your

21 submission the request for finding a political solution

22 to this Drumcree problem is being referred to. And of

23 course also you refer to the potential solution provided

24 by the Rowntree Trust. But it is in specific regard to

25 that at RNI-921-034 -- I think it is 6.23 -- where the





1 matter sort of comes to an abrupt end where you state

2 there was never any further debate regarding the issue

3 of security as far as the representative -- these are my

4 words -- of the Rowntree Trust was concerned, the issue

5 of security for the GRRC was sorted.

6 One might be left with the impression that what had

7 actually been sorted was a political solution for the

8 problem of Drumcree and that the security issues

9 relating to the other members of the GRRC, including

10 Rosemary Nelson, in her capacity as their legal adviser,

11 had only ever been considered in the context of finding

12 a political solution to Drumcree. And that once that

13 had been done, the issue of security was basically

14 forgotten. Not, I would accept, in relation to Mr Mac

15 Cionnaith and Mr Joe Duffy.

16 Could you comment for me on whether it would be

17 possible to interpret this as an attitude, a state of

18 mind, within the NIO, that this was merely another

19 mechanistic process and that more regard was actually

20 given to the outcome of the political difficulties than

21 the safety of Rosemary Nelson and the others on the

22 GRRC?

23 MR BEER: Absolutely not, because one doesn't stop at 6.23.

24 One carries on at 6.24, 6.25, 6.26, 6.27, namely what

25 happened afterwards. What had been sorted was the





1 agreement; that's what had been sorted. So it wasn't

2 the end of the road, because paragraphs 6.24 to 6.27 go

3 on to say what Stephen Pittam and Tony McCusker on the

4 one hand and Breandan Mac Cionnaith on the other hand

5 did following that solution being sorted, namely

6 Breandan Mac Cionnaith sent in proposals that were

7 totally different from those which had been agreed.

8 So with respect, I would say it would be wrong to

9 say that if that was signed off, a box was ticked, okay,

10 the road block has been removed, because what happened

11 subsequently was the submission of requests for

12 protection in accordance with -- purportedly in

13 accordance with the agreement that had been reached.

14 One mustn't forget also that after that time -- and

15 you were talking about 20 November --

16 Breandan Mac Cionnaith wrote to Jonathan Powell, the

17 duplicitous letter which appears at RNI-305-295, in

18 which he complained that the NIO was not taking the

19 personal security of his GRRC colleagues with the

20 seriousness that it deserved. You recall that

21 Stephen Leach thought that that was extremely

22 disingenuous, in his words, and what happened was

23 that the NIO had provided a solution to the problem only

24 for Mr Mac Cionnaith to attempt to recreate another

25 obstacle by writing directly to Jonathan Powell.





1 I would say, with respect, that is a wrong

2 interpretation. It wasn't a question of a mechanistic

3 approach, box-ticking or political diktats ruling the

4 day, it was sorted because there was an agreement and

5 then Mr Mac Cionnaith didn't honour it.

6 SIR ANTHONY BURDEN: Okay, thank you very much.

7 DAME VALERIE STRACHAN: I have a few points just to clarify

8 from the written submission, if I may. Perhaps we could

9 start with paragraph 13, which deals with the

10 Government's position in relation to police complaints.

11 MR BEER: Yes.

12 DAME VALERIE STRACHAN: I note all the steps that have been

13 taken and, indeed, the Government was introducing them

14 with, I think, the full acceptance by the police and the

15 full implementation by the police, that these things,

16 one recognises, take a certain amount of time to come

17 through. Accepting all of that -- and I will put the

18 same point to the police, so perhaps representatives

19 could take note now -- wasn't it important that everyone

20 concerned with the complaints system as it was then

21 operating recognised the limitations of that system and

22 were, therefore, very careful about the conclusions that

23 they drew from the fact that complaints were not found

24 to be justified, to be proved. In practice, given the

25 way that the system operated, it was very, very





1 difficult, if not impossible, for a complainant to prove

2 to a criminal standard of proof that something had

3 happened which he said had happened and the police said

4 hadn't happened, i.e. it left matters in reality

5 unresolved and wasn't it important that everyone

6 recognised that limitation?

7 MR BEER: Yes, and I think everyone did recognise it because

8 it had been the position in England and Wales right

9 from, when the system of police discipline was

10 introduced on a court martial model which carried with

11 it the criminal standard of proof. There had been

12 a succession of reports in the 70s, 80s and early 90s in

13 England and Wales relating to that very issue and in

14 this respect England and Wales lag behind

15 Northern Ireland.

16 DAME VALERIE STRACHAN: Yes, I'm not, as it were, making

17 a point about the speed of Northern Ireland's reform

18 efforts --

19 MR BEER: But the recognition of the consequences of the

20 existing system.

21 DAME VALERIE STRACHAN: That's right. Whereas we have seen

22 instances of references to complaints being

23 unsubstantiated, unfounded. My point is that that might

24 have been too sweeping a sort of statement to make in

25 relation to a system where it was very difficult to





1 substantiate a complaint.

2 MR BEER: Yes.

3 DAME VALERIE STRACHAN: Thank you. The second point of

4 clarification is on a point of detail. We are talking

5 here about the KPPS system and who visited, and the

6 first sentence of paragraph 5.35 says:

7 "The NIO is not aware of any professional security

8 firm being used in the way described, whether before or

9 after Rosemary Nelson's murder."

10 Can you clarify this for me: in the paper requested

11 by the Inquiry of the NIO and which the NIO kindly

12 provided on the background and operation of the KPPS, it

13 says -- and perhaps we could have up RNI-307-210

14 (displayed). If you look at paragraph 8, the last full

15 sentence of that paragraph:

16 "The applicant will then be visited at their home by

17 an independent security consultant ..."

18 And various other people. That appears to be

19 different from the position as described in your

20 submission.

21 Now, have I got this wrong? My understanding is

22 that it must have changed before the 2006 review. There

23 is no doubt in my mind that it certainly wasn't in

24 operation before Rosemary Nelson's murder. The question

25 is am I right in thinking that actually it did operate





1 some time after her murder, that an independent

2 consultant could come in?

3 MR BEER: It is a fair point, and adopting the precedent of

4 the security services yesterday, I think that's going to

5 have to be one where I ask for time to respond in

6 writing because there is a plain conflict between what

7 we have set out in 5.35 and what appears on this page,

8 and I don't want to busk and provide an answer --

9 THE CHAIRMAN: My recollection is there was a judicial

10 review -- I can't remember the name of it -- where

11 somebody took the point that they had to get RUC

12 involvement, and they lost the judicial review -- the

13 applicant did -- and then the system was changed.

14 MR BEER: I think the two points are probably correct but

15 they are not related. The judicial review was

16 Alex Maskey and that, one can see in footnote 20 at the

17 bottom of the page that we were looking at.

18 Mr Maskey brought a challenge to the NIO's decision

19 that the RUC was best placed to undertake the security

20 survey at his home. You will recall that one of the

21 exhibits to Miss Collins' witness statement is an

22 affidavit of about six pages in which she explains to

23 the court why it was judged that the RUC was best to

24 undertake that.

25 He, in fact, lost that challenge right in the middle





1 of these events, 6 May 1998, but I take Dame Valerie's

2 point that there is a conflict between that and

3 paragraph 5.35. So if there was the introduction of

4 independent security consultants, which this paper

5 suggests that there was, and a few words need modifying

6 at the beginning of 5.35, then we will certainly do that

7 but I will ask for permission to do that in writing

8 because it needs a little bit of looking into.

9 DAME VALERIE STRACHAN: That would be very helpful. The

10 next question arises from chapter 7 of the submission

11 and this deals with the vexed question of what happened

12 to the threat note.

13 You have very helpfully gone through in great detail

14 all the steps that Lesley Foster took -- the fax

15 headers, the different kinds of identifier on different

16 copies of the pamphlet and the threat note, which is

17 very helpful -- and you draw the conclusion that the RUC

18 were passed the pamphlet and the threat note in hard

19 copy form, and you invite us to --

20 MR BEER: And that is just in a sentence for one reason. It

21 has got "Shell Sceptre" written on it, the copy that

22 appears in the Command Secretariat file. The only

23 person that got that, so far as all of the papers before

24 the Inquiry show, was Lesley Foster when she was passed

25 the CAJ letter of 10 August. It is exactly the same





1 copy as there. So unless by happenstance the RUC have

2 got hold of exactly the same copy of the fax that we

3 happen to have, which is an incredible coincidence and

4 unexplained on the evidence, it tends to suggest that

5 what she has always said did in fact occur.

6 DAME VALERIE STRACHAN: Right. That leaves me, at any rate,

7 with a puzzle that you may not be able to elucidate, it

8 may need to be elucidated by the PSNI lawyers in due

9 course, which is what should the Panel infer from that,

10 because we are left with the puzzle that that second

11 copy of the pamphlet and the threat note were not

12 registered on the MARS correspondence system, were not

13 within the attention of P136 when she replied to the

14 NIO, and when Mr Hassan and Mr Neville visited her just

15 after Rosemary Nelson's murder they weren't on the file.

16 MR BEER: No.

17 DAME VALERIE STRACHAN: So that leaves us, you and the

18 police, with the question: what happened, assuming that

19 your, as it were, trail is the correct one? I don't

20 know if you can help me on that.

21 MR BEER: No. From our perspective, the important issue is

22 the transmission of the documents because a junior

23 official has had quite a heavy cloud hanging over her

24 for ten/13 years now and only upon this analysis is it,

25 we would respectfully submit, shown that what she has





1 said occurred, did occur, bearing in mind that the

2 substantial reason that Justice Cory recommended that

3 the NIO be included within any inquiry was on this fact

4 alone. He said that the non-transmission of the threat

5 note could be a collusive act.

6 DAME VALERIE STRACHAN: Yes, I fully understand why the

7 matter is important from the NIO's and, indeed,

8 Lesley Foster's point of view.

9 MR BEER: But I can't help you. As you say, it is probably

10 more for those who sit alongside me to address.

11 DAME VALERIE STRACHAN: No doubt they will have taken note

12 of that.

13 Could I just turn then to chapter 8, where one of

14 the sort of emerging questions is how afraid was

15 Rosemary Nelson, where the NIO appear to be suggesting

16 that to those who were closest to her, she appeared not

17 to be afraid; to those who were more distant, she was

18 expressing fear. I'm not sure what conclusions you

19 would like us to draw from that.

20 Might one interpretation be -- and I think we did

21 hear evidence from people who were closest to

22 Rosemary Nelson -- that she would put on a brave face so

23 as not to worry either her family or her staff, which

24 might explain why she was saying those things to the

25 people closest to her?





1 MR BEER: That might be one interpretation, but the evidence

2 as to her belief in the threat to her or concerns about

3 her own safety was mixed. Not everyone said, "I believe

4 that she genuinely believed that she was under threat

5 but didn't want to show it". You have got a range of

6 evidence, but I accept that that would be a possible

7 interpretation.


9 MR BEER: I should say that although it is a possible

10 interpretation, one has got to bear in mind what we

11 submit is a very significant occurrence, namely the

12 reaction to the receipt of the letter from the minister

13 of 24 September.

14 You will recall vividly -- hopefully vividly --

15 Paul Mageean's evidence where he had raised a series of

16 questions with the NIO: what about protection under the

17 scheme? What about permanent protection? What about

18 crime prevention? And the answers to those were

19 provided and then he dismissed them as being absurd and

20 Rosemary Nelson dismissed them as being absurd.

21 So that doesn't sit easily with a perception that

22 she did genuinely fear for her safety but was putting on

23 a show or a front that demonstrated otherwise.

24 DAME VALERIE STRACHAN: Yes. I invite you -- and perhaps

25 the family may also in due course wish to address this





1 question -- to think about the possibility that, yes,

2 she was afraid, that, no, she didn't think that KPPS was

3 the point, still less did she think that a personal

4 protection weapon was the point, that what she thought

5 was the point was stopping the behaviour which, rightly

6 or wrongly, was making her frightened.

7 MR BEER: Yes, absolutely. But in this respect one has got

8 to look at the purpose of the correspondence being

9 addressed to the NIO, and in this respect it is in the

10 former category. It is, "What can you do for me to give

11 me protection? That's what I'm writing about", said

12 Mr Mageean. And you will recall Mr Phillips's questions

13 of him when Mr Mageean said, "This was a silly reply

14 that I had got back" and it was pointed out to him that

15 this was the very thing he was asking about in his own

16 correspondence.

17 DAME VALERIE STRACHAN: That may be a point about Mr Mageean

18 rather than Rosemary Nelson.

19 MR BEER: Yes, it may be, but you will recall that he was

20 keen to emphasise that he read the letter to her, or

21 showed her a copy of the letter, and that her feelings

22 about the same issue matched his own.

23 DAME VALERIE STRACHAN: Right. Moving on -- I have nearly

24 finished --

25 MR BEER: No, no, we have got all day.





1 DAME VALERIE STRACHAN: In chapter 10, one of the issues

2 that you address is the question of whether the NIO was

3 sufficiently prompt in dealing with correspondence, and

4 I just wanted to pick up paragraph 10.12 of your

5 submission where you show the chronology of what

6 happened to the CAJ letter received on 12 August. And

7 you fairly point out that the police were responsible

8 for a chunk of the delay. You also point out that

9 Simon Rogers took responsibility for the fact that there

10 was a delay on receipt of the response from the police.

11 What you haven't noted but I note is that there was

12 a fortnight between receipt of the letter in the NIO and

13 its going to the police in the first place. That seems

14 quite a long time before you even start to think about

15 the answer.

16 MR BEER: Yes. If I can assist you on the chronological

17 steps: The letter received by the minister's office on

18 the 12th; minister's case file created; refer to the NIO

19 on the 18th; in the hands of Christine Collins on the

20 18th; passed to Simon Rogers on the 19th; from

21 Simon Rogers on the 19th on to Lesley Foster on the

22 19th, all of which appears on the jacket of the

23 minister's case.

24 You recall what she said about that. She received

25 it, I think, on a Thursday, the 19th, when she was just





1 going out of the office on annual leave and didn't come

2 back because it was a bank holiday, until, I think, the

3 following Tuesday or Wednesday. I know that none of

4 that excuses a delay which in total amounts to 14 days,

5 but that is the chronology of the steps that were taken

6 bearing in mind that one is dealing with a pamphlet that

7 had itself been in circulation, I think, for a number of

8 months.

9 DAME VALERIE STRACHAN: Yes. Let me make it clear that in

10 picking up this point, my purpose is not to criticise

11 any individual and least of all an individual who goes

12 perfectly properly on annual leave.

13 There is a system question for me, which is these

14 things, you know, people do go on holiday, people do

15 pass things from one to another, but if under the system

16 the answer doesn't start to be given until a fortnight

17 later, it leaves me wondering about the system.

18 MR BEER: Yes, I can understand your wonderment, but one can

19 see -- and we have attempted to contextualise this as

20 much as we can -- the volume of correspondence with

21 which the NIO officials were concerned --

22 THE CHAIRMAN: Where one is dealing with death threats or

23 allegations of death threats, things like targets and

24 percentages of correspondence dealt with in targets is

25 really not relevant, is it?





1 MR BEER: I accept that.


3 DAME VALERIE STRACHAN: That's my lot, thank you.

4 THE CHAIRMAN: Thank you very much.

5 MR BEER: I think I have got one piece of homework for the

6 weekend, which is to assist the Panel on the conflict

7 between one sentence --

8 THE CHAIRMAN: That particular paragraph, yes.

9 MR BEER: One sentence in our submissions and the document

10 that Dame Valerie drew our attention to.

11 THE CHAIRMAN: Thank you very much. Mr Harvey, do you want

12 to say anything or not?

13 MR HARVEY: If I can just say in relation to one particular

14 matter, and that is the conflict between paragraph 15.43

15 and paragraph 3.5, and the true position of the families

16 is represented by that which is set out in

17 paragraph 15.43, namely that at all times the

18 Northern Ireland Office had distanced themselves from

19 the position that Rosemary Nelson was either a terrorist

20 or had overstepped the line.

21 Paragraph 3.5 in the chapter dealing with her

22 practice, has gone, I am afraid -- where the punctuation

23 has really rather broken down. It was never the

24 intention to ascribe to the Northern Ireland Office

25 those feelings, but it was the intention to ascribe to





1 the Northern Ireland Office the feelings of prejudice

2 against Rosemary Nelson which were manifest in the

3 evidence through the witnesses called on behalf of the

4 Northern Ireland Office which perpetuated themselves,

5 not simply within the Northern Ireland Office, but

6 through and from the police and the others with whom

7 they had contact.

8 So it is only in that limited area that the

9 allegation is made in relation to the

10 Northern Ireland Office. But I respectfully submit it

11 was much more helpful to deal with the

12 Northern Ireland Office's current submissions as opposed

13 to those which they proffered by way of written

14 documentation in a much more comprehensive way, which

15 I would intend to do when the families come to address

16 the Panel.

17 THE CHAIRMAN: Thank you, Mr Harvey.

18 Well, we will adjourn now until 10.15 tomorrow.

19 (2.55 pm)

20 (The Inquiry adjourned until 10.15 am the following day)









1 I N D E X

Closing submissions by MR BEER ................... 1
Questions by THE PANEL ........................... 93