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Full Hearings

Hearing: 4th March 2009, day 119

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

on Wednesday, 4 March 2009
commencing at 10.15 am

Day 119









1 Wednesday, 4 March 2009

2 (10.15 am)

3 (Proceedings delayed)

4 (10.29 am)

5 MR ROBERT AYLING (continued)

6 Questions by MR EGAN (continued)

7 THE CHAIRMAN: Yes, Mr Egan?

8 MR EGAN: Mr Ayling I have been told there are a couple of

9 matters you would like to clarify.

10 A. Yes, thank you very much, Mr Egan. There were just two

11 matters and I will be very brief with them, if I may.

12 You invited me yesterday to check whether two items

13 are referring to the same issue or whether they are

14 separate. That was on page RNI-610-055 (displayed).

15 This was in relation to paragraph 10.13.22, if that

16 might be highlighted. It was suggested -- and

17 unfortunately I couldn't check until overnight -- that

18 these two comments were referring to the same event.

19 I have caused that to be checked and I can clarify that

20 they are not; they are separate events.

21 The first quotation from document 1331, which is

22 mentioned in the footnote, was recorded on 16 March 2000

23 and is a conversation with an undercover officer, or

24 a summary of it.

25 Q. That's 1331, is it?





1 A. 1331, recorded on 16 March 2000.

2 The second one, which is quoted in document D4552,

3 was one month earlier, 14 February 2000, and that also

4 is a summary of a conversation recorded but with

5 a different undercover officer. So --

6 Q. On what date, sir?

7 A. That was 14 February 2000.

8 Q. Right.

9 A. So if that stands for that clarification.

10 Q. Do you have the document 4452 with you?

11 A. Possibly. I moved a great number of the documents from

12 the place where we worked --

13 Q. Mr Ayling, I say that actually in a genuine spirit of

14 assistance. I do have the document here because

15 I discussed it with Mr Savill last night, and I hasten

16 to add he, probably out of caution, didn't pass it on to

17 you and that was unnecessary. I would have been quite

18 happy for you to see it because I think it does provide

19 the answer.

20 Sir, what I would propose to do here is not to

21 trouble everyone, and particularly the Panel, with this,

22 which will be a matter of record, it seems to me, unless

23 you wish me to explore it with the witnesses in

24 questioning.

25 THE CHAIRMAN: It is document 1331, is it? Or ...?





1 MR EGAN: It is 4452.

2 A. Yes.

3 Q. You see the simple point is, Mr Ayling -- and I don't

4 want to take a point against you if you have been given

5 information -- but the document, 4452, will have the

6 answer?

7 A. Yes.

8 Q. Which is the document I have in my hand.

9 Now, it may very well be -- perhaps unusually in

10 these circumstances, if you would just like to look at

11 it, it may assist. (Handed) It has got some

12 highlighting by me, Mr Ayling, which may help. If you

13 can't deal with this very quickly do say so and we will

14 move on.

15 THE CHAIRMAN: After Mr Ayling has seen it, do you have any

16 objection to the Panel seeing it with your highlights?

17 MR EGAN: No, indeed.


19 A. How much of it do I need to read?

20 MR EGAN: I think if you go to the front page you will see

21 what has perhaps led to the error. The front page is

22 14 February 2000, and satisfy yourself it is document

23 4552.

24 A. I do.

25 Q. The extract which I think appears in your report -- do





1 satisfy yourself of this -- is in fact a summary of

2 a conversation on 16 March.

3 A. Obviously I would need to read the whole report to be

4 entirely satisfied of that. (Pause)

5 It is not something I'm obviously going to be able

6 to do quickly, Mr Egan, and particularly as the Chairman

7 has expressed the wish for the Panel to see it as well,

8 is it better that I take it away and we come back to it

9 at a later --

10 Q. I'm going to make a suggestion. There is going to be

11 a break for the closed hearing. This is a matter of

12 record and it seems to me if it is going to take any

13 time at all, it is something that Mr Ayling could

14 examine during the obvious break we are going to have

15 and then we could raise it again.

16 THE CHAIRMAN: Yes. Right.

17 MR EGAN: We will do that.

18 That was the first thing, Mr Ayling. Perhaps if you

19 keep that and read that in the course of the closed

20 hearing, thank you. The second point, please?

21 A. The second point, again to be brief, we had a very long

22 exchange with the conversation that had been taking

23 place that led you to take me to a paragraph saying that

24 I had -- that there was no evidence in relation to the

25 murder of Rosemary Nelson. It was the point, to remind





1 you, Mr Egan, that the Chairman helpfully intervened and

2 suggested that it was a tenuous --

3 Q. It was tenuous evidence, yes -- or could be tenuous

4 evidence.

5 A. Indeed. What preceded that, I was certain that there

6 was some balance in my report and you took me to

7 a paragraph suggesting it was the place where I had

8 mentioned it. I would like to, please, just bring up

9 document RNI-610-018 (displayed).

10 At paragraph 10.7.17, this, I hope, paragraph,

11 demonstrates that there was an acknowledgment from me

12 that there was, as it says there:

13 "... an ever increasing product from the covert

14 activity that was identifying large scale criminality

15 linked to Loyalist terrorism, although nothing of real

16 benefit towards the objective of detecting the murder of

17 Rosemary Nelson."

18 Now, I know the wording is slightly different there

19 because, as I've said before, no evidence. But if I

20 could also, please, ask for document RNI-817-261

21 (displayed) to be brought up and highlight the very last

22 three lines, this document is actually the statement of

23 Mr Arthur Provoost to the Inquiry, and the earlier part

24 of paragraph 391, which is only just visible under the

25 box at the moment -- on top of the box -- is where he





1 describes the same conversation that we had been talking

2 about, the ones where you invited me to share your view

3 that it did provide evidence of Rosemary Nelson's murder

4 and that was the logical conclusion.

5 Well, in the last paragraph, as you can see there,

6 Mr Provoost is saying in his own statement:

7 "However, no evidence emerged during their

8 conversations that incriminated ..."

9 And under the redacted box it deals with the two

10 people involved:

11 "... in the murder of Mrs Nelson."

12 So I was just anxious to make that clarification,

13 sir.

14 Q. I think in fact the paragraph I took you to concerned --

15 where you said no significant intelligence had been

16 revealed in relation to the murder of Rosemary Nelson.

17 Am I right about that?

18 A. I haven't noted the paragraph.

19 Q. I'm sure that can be checked. Whether, of course, it is

20 or it isn't will be a question of fact looking at the

21 transcript. But I think also, under chapter 10 -- no,

22 that's the same point, isn't it? 10.12.9, RNI-610-046

23 (displayed), paragraph 10.12, I think you deal with the

24 matter again there:

25 "From all the material recovered so far by the MIT,





1 nothing has been gathered that was of evidential value

2 in relation to the murder of Rosemary Nelson, nor any

3 information which supported the original hypothesis of

4 the MIT."

5 "... nor any information which supported the

6 original hypothesis of the MIT," do you still stand by

7 that?

8 A. Yes.

9 Q. Does it not, if it was indeed tenuous evidence of a link

10 between those suspects, at the very least, Mr Ayling,

11 provide information which could be capable of supporting

12 the original hypothesis of the MIT?

13 A. No, I think the tenuous evidence is evidence of

14 a conspiracy amongst Loyalist terrorists who commit

15 terrorist offences and that links with the attack on

16 Mrs Nelson was most likely an attack by Loyalist

17 terrorists. That would be my interpretation of what

18 I intended to say by tenuous link. And, you know, I did

19 see support for that same proposition in Mr Provoost's

20 statement to the Inquiry.

21 Q. Thank you. Could you look, please, at -- and I'm back

22 to Operation George -- RNI-616-809, please (displayed).

23 This is a policy decision redacted, but I hope we can

24 look at it. I think you have had an opportunity of

25 reading this, have you?





1 A. Yes, I think that's the one that was circulated

2 yesterday.

3 Q. Right. 11 June 2001. It was circulated yesterday for

4 the parties to look at, but it is something, I suggest,

5 that you must have seen really from the early days of

6 your work, wasn't it?

7 A. Yes.

8 Q. Because it is an important entry, isn't it?

9 A. It is obviously a decision to effectively bring to an

10 end by arrest the Operation George.

11 Q. Yes. So you agree it is an important entry?

12 A. Yes.

13 Q. Yes. And it is important because it illustrates or --

14 in a case where, in your report, you place so much

15 emphasis on the recording of decisions and people's

16 thought processes, at any rate you would concede with me

17 that there is some record here of what the SIO was doing

18 and thinking at the time. Do you agree with that?

19 A. Yes.

20 Q. And of particular interest is that the SMT had decided,

21 when arresting a suspect, that he would be taken to

22 Gough Barracks for questioning and that he would be

23 questioned about the murder of Mrs Nelson. Is that

24 right?

25 A. Well, let's follow it through:





1 "In consultation with the senior management team,

2 a decision has been reached to arrest ..."

3 Obviously there are names there:

4 "... for involvement in this murder."

5 There is only one person under that redaction box,

6 is there? Because it then follows in the singular:

7 "He will be conveyed to Gough Barracks."

8 Q. Yes.

9 A. "The arrest ..."

10 Q. Unfortunately, infuriatingly, I put my -- I think I may

11 have it here -- no, I don't. I think that would be one

12 name?

13 A. I think that's one of the principal targets of Operation

14 George, yes.

15 Q. "He will be conveyed to Gough Barracks --

16 A. "Questioned about the ..."

17 Q. Under the redaction:

18 "The suspect will also be questioned about the

19 murder of Elizabeth O'Neill, attempted murder of

20 [someone else] and attempted murder of other offences."

21 What that seems to be doing, does it not, sir, is to

22 be at least some indication of what the priority was.

23 Would you agree?

24 A. Yes, to a limited extent.

25 Q. So be it. Well, we have your evidence about that and





1 I'm not going to ask you any more about it.

2 Why doesn't any reference appear to this -- would

3 you agree -- important decision in chapter 10 of your

4 report?

5 A. I'm sure that the reference to the decision to arrest

6 appears in many forms throughout the report. If you are

7 pointing out to me that the particular policy file entry

8 is not actually quoted anywhere, then if that's the

9 position, I will accept it, but I don't accept the

10 position that the issue about the decision to arrest.

11 What the arrest was for and what followed it I think is

12 dealt with in many places throughout the report.

13 Q. But in a case where you may have been looking at the

14 priorities of the MIT at this time in Operation George,

15 i.e. one might call it the shift of focus, which I think

16 you have given evidence of over the last -- during the

17 last couple of days, i.e. having their minds moved from

18 the murder of Mrs Nelson to other more general matters

19 and directing terrorism, well, this is quite

20 a significant entry, isn't it?

21 A. Well --

22 Q. In that context?

23 A. Well, I'm not sure that it is. I do not feel it

24 illustrates your point for this reason -- and it is the

25 reason why I said "to a limited degree", because what





1 I do mention in the report is that when eventually

2 a file for these other matters -- the murder of

3 Elizabeth O'Neill and other matters -- was sent to the

4 Director of Prosecutions, the file was sent under the

5 heading of "The Murder of Rosemary Nelson", which is

6 strange because none of the files contained any evidence

7 in relation to Rosemary Nelson's murder. And I think,

8 you know, there was the same phenomena with this policy

9 entry. It is, I accept, the Rosemary Nelson Murder

10 Investigation Team making a decision to arrest and

11 I accept that they are going to question in relation to

12 Rosemary Nelson's murder. That's very clear and

13 I comment about it; in fact, I think I make some very

14 complimentary remarks about their preparedness to make

15 those arrests in my report.

16 Q. I think there is no issue -- you are right -- between

17 us. Obviously I agree on behalf of those I represent

18 that the preparations for the arrest and interview of

19 the suspect were first-class and I think you make

20 a comment about that in your report.

21 A. We do, and I'm happy to confirm that.

22 Q. But if you look at RNI-610-095 (displayed), which is the

23 point you have just referred to in your report,

24 paragraph 10.14.9, we see that you say there that the:

25 "... AT considers the MIT focus on the murder of





1 Rosemary Nelson as diminished by Operation George's

2 total concentration on other terrorist offences

3 'admitted' to in the monitored conversations, only being

4 belatedly reconsidered ... at the culmination of the

5 arrest phase."

6 Then you make the comment about the files.

7 So you make, in fact, a pejorative point about the

8 Murder Investigation Team there and the reason why

9 I have asked you -- I would like to know the reason why

10 the policy decision is not referred to in your report --

11 was wouldn't balance at least indicate that in fairness

12 they had said, when the decision was made to arrest,

13 that the priority was to arrest him for Rosemary Nelson

14 and they, for what it is worth, also intended

15 subsequently to interview him about other offences?

16 Don't you think that would have been a fair-minded

17 expert's approach?

18 A. I would wish to maintain that my report is fair and

19 balanced on the issue in general. There is, as I have

20 said before, many references to the arrest that has been

21 made, to how the suspects were questioned, to what they

22 were questioned about, to make an observation which you

23 have put on the screen here illustrated in the paragraph

24 highlighted, that they did submit the file under the

25 heading of the Rosemary Nelson murder investigation, but





1 the issue was that they only had evidence for the other

2 offences that were submitted.

3 Of course, it was perfectly reasonable to question

4 in relation to Rosemary Nelson's death. I have no

5 problem with that at all. But I think just as the

6 submission of the file with the heading "Rosemary Nelson

7 Murder Investigation" was a little bit strange, bearing

8 in mind there was no evidence in relation to

9 Rosemary Nelson's murder, so indeed the issue with the

10 policy file entry that you have drawn my attention to.

11 The fact that I didn't quote that policy file in the

12 report, I obviously feel I dealt with the issue in the

13 round -- of course not every policy file decision, there

14 being a very great number, despite my criticism that

15 they are severely lacking in many areas, that not all of

16 quoted in the report. But I do maintain, and I maintain

17 even now, that the report is fair and balanced on the

18 issue.

19 Q. Bearing in mind the element of that policy decision, we

20 agree, do we, it is evidence -- it will be a matter for

21 the Panel what they make of it -- it is evidence of what

22 the arresting officer -- forgive me, the OIOC -- was

23 thinking on 11 June, isn't it?

24 A. As much as the entry that is highlighted on the screen

25 is evidence of what DCC Port was thinking when he asked





1 for the file to be submitted under the Rosemary Nelson

2 murder investigation.

3 Q. Mr Ayling, why not answer the question I have asked,

4 rather than the question you wish I had asked? It is

5 evidence of what he was thinking on the 11 June,

6 isn't it?

7 A. Yes.

8 Q. And displaying a fair and open mind, don't you think

9 that the very least you could have done was make

10 reference to it?

11 A. I think I have covered all the points in my previous

12 answer.

13 Q. I think you have. Thank you, I'll move on.

14 Now, on the question of open-mindedness, please, a

15 general point. I'm not going to take you through the

16 very large number of other matters that the MIT did

17 during the currency of this investigation, but would you

18 just consider this for a moment: collusion was a very

19 important line of enquiry, wasn't it?

20 A. Yes.

21 Q. And of course you would agree, would you not, that the

22 decision of the MIT to deal with collusion as a line of

23 enquiry, and the test they applied, was a sensible and

24 proper one?

25 A. I have issues with the second point but not major





1 issues, but sensible and proper as far as it went. In

2 my view, perhaps it was rather limiting.

3 Q. Well, the point I wish to ask you about, I think, can be

4 made rather shortly: any matter that arose in the course

5 of the collusion enquiry was investigated, was it not,

6 as far as you could see?

7 A. I think my reference to saying it rather narrowly

8 interpreted it. On the interpretation that the MIT gave

9 and how they would consider collusion, the answer to

10 that is yes, which of course was relying on people

11 reporting collusion to them and they would investigate

12 it.

13 I think there are features that arose in the course

14 of the enquiries that invited a consideration to examine

15 a collusion element, and I think they were not examined

16 in that way.

17 Q. Well, I'm not, with respect -- unless I'm asked to --

18 going to go down that line with you because it isn't

19 under the remit of the questions that I have to ask.

20 I'm dealing with the question of keeping an open mind.

21 A. Yes.

22 Q. In relations to the Murder Investigation Team, every

23 single matter that they examined on collusion involved

24 looking -- I say every single matter. That wouldn't be

25 right. There would be matters that arose in collusive





1 aspect which could affect the main suspects.

2 But, of course, a great many, if not the majority of

3 collusion enquiries were outside that particular focus,

4 weren't they? I can give you examples, Mr Ayling, but

5 I'm sure it is not going to be necessary for me to

6 do so.

7 A. Yes, Mr Egan because particularly of course the biggest

8 side of the collusion enquiry was the examination of

9 security force activity.

10 Q. Well, is that not an illustration of them retaining an

11 open mind?

12 A. Sadly, I think not because there were issues that arose

13 that needed to be examined on the collusion front --

14 I need to be guarded in recognition that we are in open

15 session -- that I think were not examined on that basis.

16 The collusion enquiry was mainly reactive to what

17 other people suggested was collusion, in particular, of

18 course, the security force activity was, quite rightly

19 and properly and very thoroughly in relation to what was

20 the concerns of the community immediately following the

21 murder.

22 Q. I'm going to stop you there and I'm going to examine

23 with you, if I may, in closed session about other

24 matters that arose in the course of the collusion

25 enquiry.





1 A. Yes.

2 Q. Now, dealing with the question briefly, please, of

3 suspects, et cetera, that is suspect and identification

4 of suspects -- and you gave evidence about that

5 yesterday -- of course, tragically this was an unsolved

6 murder, was it not? Obviously.

7 A. Yes.

8 Q. And the tragic consequence of that, it being a terrorist

9 murder, is that there will be a great many suspects and

10 an open mind has to be kept on their possible

11 involvement still, wouldn't you agree?

12 A. I would agree.

13 Q. And in fact that's probably demonstrated, isn't it -- it

14 is the last thing I want to ask you about. The clients

15 that I represent, the MIT, have given evidence that they

16 had no confusion in that matter and, of course, the

17 Panel will appraise that evidence. I don't ask you for

18 your opinion on that.

19 But I just want to ask you about one matter, which

20 arose yesterday as a result of questions I asked you,

21 about analysis of intelligence?

22 A. Yes.

23 Q. And it has to do with the 12 items of intelligence that

24 you identified in your original report. Could it be put

25 up, please, at RNI-609-010 (displayed)? You will be





1 familiar with this, I think:

2 "Key intelligence received during the

3 investigation."

4 Could you go over the page, please, to RNI-609-011

5 (displayed)?

6 A. This is the chronology of intelligence.

7 Q. Yes. And the 12 items that were identified were --

8 I think if we go over to RNI-609-012 (displayed),

9 I think we see -- most of them are blocked off, but we

10 could try RNI-609-013 (displayed) -- see an example

11 of -- if you look at the first entry in March 1999, the

12 reason that's in bold is because it is identified by the

13 assessment team as being an item of intelligence that

14 was not passed on to the MIT.

15 A. That's why it is in bold, sir, yes.

16 Q. That's right. Now, there were 12 items, pieces of

17 intelligence, that were not -- that were, in the

18 estimation of the IAT -- that were not passed on. You

19 will have seen Mr Provoost's statement, which I think in

20 fact qualified that slightly by saying, well, actually

21 two of them we had, we did have. Do you remember that?

22 A. Yes, I do.

23 Q. Right. So I don't think we need to turn that up.

24 Now, I was asking you yesterday about Mr Provoost in

25 his statement at RNI-817-334, reference yesterday's





1 transcript -- this is page 76 -- Mr Provoost in this

2 statement identified 13 pieces of additional

3 documentation, some of which were important?

4 A. That he classified as relevant.

5 Q. Classified as relevant?

6 A. Yes.

7 Q. And in fact I think the original identification was

8 17 items, but it was 13 relevant. And one must,

9 I think, deduct one because the phone call is one of

10 them. But at any rate, he identified 13 pieces of

11 additional documentation which were not passed on to the

12 MIT.

13 Now, I think yesterday I was going to ask you,

14 please: how is it that the assessment team, as it were,

15 didn't identify those themselves? And you said in the

16 course of your answer that:

17 "There was certain mention of it and it was deemed

18 appropriate that a lot of the material was kept from me

19 on the basis that it was not known to the Murder

20 Investigation Team, and that there would be an element

21 of unfairness if I took any account of that in coming to

22 my conclusions in respect of due diligence of the Murder

23 Investigation Team"?

24 A. Yes, I remember that, sir.

25 Q. And anxious to keep going, yesterday, I said, well, I'll





1 come back to that if I need to because it wasn't

2 information that I had.

3 A. I remember.

4 Q. I am going to come back to it, please, for this reason:

5 you must have had access not only to the HOLMES account

6 and the X2 account, but also the Special Branch material

7 to have made the original list of 12 items?

8 A. That I believe hadn't been passed?

9 Q. Yes.

10 A. Yes. I am afraid it is a very confusing area, Mr Egan,

11 and I'll do my best with it.

12 Q. Well, it might be -- on the principle of inquisitorial

13 hearing, it might be an idea if I asked a question or

14 two and see if we can deal with it quicker in that way.

15 A. Okay.

16 Q. Did you have access to Special Branch material to enable

17 you to identify the 12 items which appeared in your

18 report?

19 A. I had access to some Special Branch material.

20 Q. In the course of making your report, is it your

21 evidence, therefore, that there was a decision taken not

22 to give the IAT access to all the material?

23 A. There was a decision taken.

24 Q. And was that decision taken before your original report,

25 the draft report, I think, that was served on the MIT?





1 A. There was a decision taken that some members of my team

2 would support the Inquiry in respect of examining

3 material, and the undertaking was that I was not to

4 share in that process.

5 Q. So you had a separate team that looked at the

6 intelligence but didn't disseminate it to you?

7 A. No, some members of my team examined secret intelligence

8 that I did not have access to and they did not share it

9 with me because it was an undertaking that they

10 would not.

11 THE CHAIRMAN: It was given because of the high sensitivity

12 of the material, Mr Egan.

13 MR EGAN: Will you forgive me if I just take instructions?

14 (Pause)

15 I'm not going to ask any more questions about that.

16 Thank you very much for that interjection.

17 THE CHAIRMAN: Thank you.

18 MR EGAN: Finally, Mr Ayling, in the open hearing, I think

19 yesterday you said you had 10 references to terrorism

20 from the MIM and I did not want to deny you the

21 opportunity to illustrate your point. Would you

22 like to?

23 A. Sadly, Mr Egan, I was prepared and brought the

24 documentation with me yesterday. When you indicated

25 that you didn't want me to do so, I didn't bring it back





1 today, sadly.

2 Q. We can provide you with a copy. Did you include the

3 index?

4 A. I did include an annex, I think, and do you remember

5 when we asked with your count whether we were counting

6 twice on the page?

7 Q. Every time the word was used I gave you an additional

8 bit. Did you also use the Prevention of Terrorism Act?

9 A. I'm not sure.

10 Q. We might have left that out. We are very sorry about

11 it. That's all I want to ask you.

12 A. I do not have the document with me.

13 MR PHILLIPS: That, I think, completes the open session and,

14 as a result, we now, I am afraid, have the normal delay

15 before we can begin again. And perhaps we should do the

16 normal thing and summon people as and when the

17 preparations have been completed.

18 THE CHAIRMAN: It will be at least 20 minutes before we

19 resume for those entitled to be in the closed session.

20 (11.05 am)

21 (Short adjournment)

22 (11.35 am)

23 (Closed session)

24 (1.06 pm)

25 (The short adjournment)





1 (2.10 pm)

2 (Closed hearing)

3 (2.21 pm)

4 (The hearing adjourned until 10.15 am the following day)

























1 I N D E X


MR ROBERT AYLING (continued) ..................... 1
Questions by MR EGAN (continued) ............. 1