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Full Hearings

Hearing: 1st October 2008, day 56

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

on Wednesday, 1 October 2008
commencing at 10.15 am

Day 56









1 Wednesday, 1 October 2008

2 (10.15 am)

3 (Proceedings delayed)

4 (10.48 am)

5 THE CHAIRMAN: Yes, Mr Phillips?

6 MR PAUL DONNELLY (affirmed)

7 Questions by MR PHILLIPS

8 THE CHAIRMAN: Please sit down.

9 MR PHILLIPS: Mr Donnelly, can you give us your full names,

10 please?

11 A. My name is Paul Alexander Donnelly.

12 Q. Thank you. I think it is right that you made

13 a statement to the Inquiry, and we can see it at

14 RNI-804-057 (displayed) on the screen. Do we see your

15 signature at RNI 804-071 (displayed) and the date of

16 2 April?

17 A. That's correct, yes.

18 Q. I would like to start right at the very beginning of

19 your statement and, indeed, the very first line of the

20 very first paragraph because I want to ask you about

21 that sentence which begins memorably with a past

22 participle.

23 What caused you to apply specifically for membership

24 of the ICPC?

25 A. As I state in my statement, I was motivated by a sense





1 of public service, a sense of -- as an exile, wanting to

2 make some contribution to my home. I applied to be

3 a member, as opposed to chair, specifically because of

4 what I anticipated could be the time commitment

5 required.

6 Q. So you applied on that basis, presumably because the role

7 of the member required part-time input and less than

8 is required of a chairman?

9 A. Initially both positions were part-time, but yes, it was

10 because it would be less demanding of time.

11 Q. Were you at that point based in England?

12 A. I was based in London, yes.

13 Q. I think it is right to say that you were an academic at

14 Kingston. What was your subject, please?

15 A. I was Chair of the School of Social Work.

16 Q. Thank you, and you had no legal background or training?

17 A. No legal background and training, except I obviously had

18 training in aspects of welfare law, family law,

19 et cetera, but yes.

20 Q. Did you have any previous experience in this particular

21 area, i.e. of disciplinary investigations?

22 A. No, not of disciplinary investigations. I had

23 a longstanding research association with Cornell

24 University on a programme which had to do with

25 investigative processes in respect of vulnerable victims





1 and vulnerable witnesses, but other than that, no.

2 Q. And in relation to the role that you were eventually

3 offered, namely that of chairman of the organisation,

4 can you help us, please: what did you understand to be

5 the role of the Chairman of the ICPC?

6 A. It would be fair to say that my understanding was based

7 on an intuitive senses of what a chairman of a public

8 body should be doing or should be involved with.

9 To some degree the proposal was bounced on me.

10 Having prepared and applied for membership, to be called

11 back within, I think, two or three days to be

12 re-interviewed for the chairmanship was a surprise. But

13 my sense was that the chairman would be expected to

14 provide institutional leadership, have a role and

15 responsibility in respect of the quality of performance

16 of the organisation and have a representational role in

17 respect of other stakeholders and the general public.

18 Q. Now, you tell us in paragraph 4 on this point, at

19 RNI-804-058 (displayed) at the bottom of the page, that

20 the statutory material didn't give you a great deal to

21 go on. Is that a fair way of putting it?

22 A. The fair way to put it would be that there is a complete

23 paucity of guidance. The normal statutory instruments

24 that one would expect in terms of regulation and

25 guidance were very scant in respect of the role,





1 function, status and authority of the chairman.

2 Q. And were you given any more information or briefing on

3 that role before you came to take it up?

4 A. No, effectively no. The person who mentored me into the

5 position was the chief executive.

6 Q. And the impression one gets from your statement -- and

7 in particular now I am thinking about slightly later

8 paragraphs, and in particular the section beginning in

9 the later part of paragraph 4 -- is that you worked with

10 the chief executive in a sense to define what the role

11 of chairman should in fact be?

12 A. I think it would be fair to say that our efforts went

13 beyond that. Our efforts were to define and redefine

14 the organisation itself in preparation for the

15 introduction of the Ombudsman's office. But, yes,

16 within that, to have a role for the chairman which

17 differed significantly from that which had previously

18 been the case.

19 Q. The impression one gets from your statement -- and we

20 will come back to this in a little more detail -- is

21 that you took it as your job to bring about a number of

22 changes within the organisation as you found it on

23 arrival. Is that fair?

24 A. That would be fair to say, yes.

25 Q. Can I ask you about your relationship with the





1 supervising members?

2 A. Hm-mm.

3 Q. First of all, as I understand it, there were six or

4 seven of them. Is that correct?

5 A. That would be correct, yes.

6 Q. There was yourself as Chairman, a deputy chairman?

7 A. There were two deputies.

8 Q. Thank you. And then a small administrative staff headed

9 by the Chief Executive?

10 A. That would be correct, yes.

11 Q. And would it be right that your main working partner, if

12 I can put it that way, in the administration was the

13 Chief Executive?

14 A. That would be correct.

15 Q. Thank you. Can I ask you some questions now about the

16 matters you touch on in paragraph 2 of your statement,

17 which is back at RNI-804-057 (displayed). You say in

18 that paragraph, reading over the page:

19 "They ..."

20 That is the NIO officials:

21 "... also encouraged me to develop strong links with

22 the Irish Government officials in the Anglo-Irish

23 Secretariat than had hitherto been the case."

24 Why was it that you were encouraged to develop

25 stronger links in that area?





1 A. My impression of the motivation from the NIO officials

2 was as part of the transfer to the Ombudsman's office.

3 Also because there had been little or no contact between

4 the Commission and the Irish Government officials to

5 that date, and I think it was also of the time where

6 there was a fairly powerful political dynamic towards

7 even more constructive relationships with the Republic

8 of Ireland than had previously been the case.

9 Q. So in that sense your work and your role found its place

10 within the changing political dynamics of that time?

11 A. Yes, that is where it found itself and that is the

12 environment within which I worked.

13 Q. Your institution itself was in the process of radical

14 change during your period as chairman, wasn't it?

15 A. There were expectations of radical change, but as in all

16 change environments, these often meet with change

17 resisters, some of whom are quite influential.

18 Q. Indeed, but you tell us right at the outset of

19 paragraph 2 on RNI-804-057 at the bottom (displayed)

20 that on your appointment you were told by NIO officials

21 that an important element of your mandate was to prepare

22 the organisation for those changes?

23 A. Absolutely, yes.

24 Q. Did that take the form of a briefing from officials in

25 the NIO?





1 A. Yes, it did.

2 Q. From the Police Division?

3 A. From the Security Division and the Police Division.

4 Q. Thank you. And we know from other material in evidence

5 the Inquiry has received that it was, I think, in 1997,

6 so shortly after your appointment, that the Hayes Report

7 was produced and after that the new incoming Labour

8 Government accepted the recommendation that there should

9 be an Ombudsman's office.

10 A. Hm-mm.

11 Q. And as I understand it, from that point on, one of your

12 functions was, as you say, to deal with the transition

13 so far as you were able to?

14 A. Hm-mm.

15 Q. Now, that meant in turn, didn't it, that you were

16 leading an organisation which was the subject of fairly

17 widespread criticism?

18 A. Yes.

19 Q. And you were leading part of a two-part system in which

20 a great deal or a great number of people had very

21 limited, if any, confidence?

22 A. That would be true.

23 Q. Did that create a pressure on your organisation, do you

24 think, to deliver results?

25 A. Yes, I think particularly on me to deliver the results





1 within the organisation.

2 If I could backtrack just slightly, the Hayes Report

3 was published very soon before my appointment.

4 Q. Thank you very much.

5 A. But myself and, I would say, my chief executive did not

6 see this as the final word.

7 We had communications with the Patten Commission in

8 respect of police complaints, internal and external

9 oversight, and also contributed proposed amendments to

10 the Police Bill. My recollection is that we proposed

11 17 amendments, 14 of which were incorporated into the

12 final Act. So what I'm trying to point out is that we

13 were engaged in the broader policy agenda as well as the

14 institutional reform agenda.

15 Q. Thank you very much. Can I return to the topic of the

16 sense, that I think you have accepted you felt, of

17 needing to produce results?

18 One of the criticisms of the organisation was that

19 the number of investigations which resulted in

20 proceedings of one kind or another, criminal or

21 disciplinary, was very low. Did the organisation under

22 your chairmanship feel a pressure to increase that

23 strike rate, if I can put it that way?

24 A. Sadly not that I would able to identify. My colleagues

25 in the Commission seemed remarkably comfortable with the





1 situation that the organisation was in.

2 It is true that in terms of results in respect of

3 criminal or disciplinary proceedings, the, for want of a

4 better phrase, success rate was remarkably low,

5 remarkably low in comparison internationally, remarkably

6 low in comparison with the English Police Complaints

7 Authority and with the Garda Siochana Police Complaints

8 Authority. So, yes, it was low.

9 I should add that one of the statutory elements of

10 this had to do with the fact that in order to secure

11 a disciplinary conviction, one had to arrive at the

12 criminal standard of proof, which was -- had that not

13 been the case, there would have been more disciplinary

14 proceedings.

15 Q. That was a topic, wasn't it, highlighted in the Hayes

16 Report itself?

17 A. Yes, it was.

18 Q. Can I ask you a final question in relation to this issue

19 of change and pressure?

20 Is it fair to say that at this time in particular in

21 Northern Ireland, the time we are concerned with here,

22 which is between 1997 and 2000 in your case, that

23 policing issues, including issues relating to the ICPC,

24 were always politically sensitive?

25 A. They were always politically sensitive, yes.





1 Q. And that your organisation and you in particular were in

2 the middle of that, if I can put it that way?

3 A. Yes.

4 Q. Thank you. Can I ask you about working relationships

5 outside the organisation?

6 You mentioned earlier being briefed by officials

7 from the NIO and you mentioned the two parts of that.

8 Can I take it that you would have continued to have

9 contact with NIO officials in those divisions throughout

10 the period of your chairmanship?

11 A. That would be correct, yes.

12 Q. How often would there be meetings and discussions?

13 A. There would be few formal minuted meetings; there would

14 be numerous telephone and informal conversational

15 events. Once a month maybe.

16 Q. And at what level of the NIO would your contact be?

17 A. My contact would have been with, usually, the Head of

18 the Police Division or the Head of Politician Division

19 and Head of Security.

20 Q. We see in your statements at various points references

21 to informing the NIO on various matters. Did you regard

22 it as part of your role, given the political sensitivity

23 of these issues, to keep the relevant government

24 department abreast of matters as they developed?

25 A. Yes, I did, and certainly it was one of the major





1 responsibilities of my chief executive.

2 I would add that there was a dividing line,

3 sometimes clearer than others, between informing them,

4 consulting with them and seeking direction from them,

5 and I was always at pains to ensure that we neither

6 sought nor took direction from them.

7 Q. And that must have been presumably particularly

8 important when the political temperature rose and the

9 stakes became very, very high for the civil servants and

10 for their political masters?

11 A. That is absolutely correct.

12 Q. And there were some examples of that which we will come

13 on to and which you deal with in your statement, weren't

14 there?

15 A. Yes.

16 Q. Thank you. So far as the police are concerned, which

17 was the other side of the system in which you were

18 working, what was your contact point there as chairman

19 of the organisation?

20 A. My personal contact was with the Chief Constable,

21 although my chief executive would have liaised with the

22 Assistant Chief Constable for Complaints and Discipline.

23 Q. So did you have any regular contact with any officer

24 within the Complaints and Discipline Department itself?

25 A. No, I was fairly arm's length from that.





1 Q. And that would be left, would it, to your chief

2 executive?

3 A. That would have been left to the Chief Executive and his

4 staff.

5 Q. Yes. Again, in relation to the Chief Constable -- you

6 deal with this in your statement in paragraph 9, which

7 is at RNI-804-061 (displayed) -- how regular was your

8 contact with him?

9 A. That would have been infrequent. It is hard to say with

10 what regularity. I think during my term of office, we

11 might have met a dozen times, something like that.

12 Q. Was that determined by events rather than following any

13 set pattern?

14 A. Apart from the early meet and greets and occasionally

15 introduction to, let's say, a newly appointed deputy,

16 yes, it would have been as a response to events.

17 Q. Can I just take you to an example of that to see how

18 this works through? We have your minutes for a meeting

19 on 17 October 1997 in our file, and that is at

20 RNI-222-002 (displayed). There are many sets of minutes

21 in the files, but can I ask you to look in this minute,

22 17 October, at page 4, RNI-222-004, and paragraph 8

23 (displayed). There are two paragraphs under 8. I would

24 like to look at the first at the moment.

25 Miss McNally is outlining some difficulties with an





1 investigating officer, and at the end, do you see, of

2 this paragraph, it says:

3 "In any event, it was agreed at that the Chairman

4 would arrange an early meeting with the Chief Constable

5 to inform him of the Commission's dissatisfaction with

6 the officer in question."

7 So that is an investigating officer in relation to

8 a complaint. Is that right?

9 A. My memory is yes, that would be right.

10 Q. And you were saying in the meeting that you would

11 arrange an early meeting with the head of the RUC to

12 inform him of the Commission's dissatisfaction with that

13 officer?

14 A. Yes.

15 Q. Is that a regular occurrence that you would intervene in

16 that way?

17 A. No, it was exceptional.

18 Q. And so in circumstances, albeit exceptional like that,

19 you wouldn't take the matter yourself to, for example,

20 the Assistant Chief Constable, who was the head of that

21 branch, Complaints and Discipline?

22 A. No.

23 Q. You would deal directly with the Chief Constable?

24 A. I would deal directly with the Chief Constable.

25 Q. In all cases?





1 A. As a rule, yes.

2 Q. And so far as the Chief Constable was concerned, how was

3 your relationship, your working relationship, with him?

4 A. I would have described it, and still would describe it,

5 as one of an understanding of each other's roles and

6 responsibilities and one of mutual respect for our

7 differing perspectives on what the roles might be.

8 Q. Now, so far as the police authority -- and this is the

9 next outside body I would like to touch on -- you tell

10 us about your relationship as an organisation with the

11 Police Authority in paragraph 10, RNI-804-061, if we

12 could look at that, please (displayed).

13 What was the cause, in your view, of the poor

14 relationship between these two organisations?

15 A. I think it was one of fairly straightforward

16 institutional rivalry. My sense is that the police

17 authority, certainly members of the Police Authority and

18 some of their officials, felt that they should have had

19 a more pronounced -- well, they felt they could have

20 possibly had a relationship with the Commission which

21 was one of accountability of the Commission being

22 somehow or other more directly accountable to them, and

23 as a consequence, at times they would have felt excluded

24 from information that they felt they would have had

25 a right to have accesses to.





1 Q. Can I ask you this: the nature of the relationship, did

2 it change at any point during the years with which we

3 are concerned; in other words, between your arrival in,

4 I think, 1996/1997 and 2000?

5 A. Not substantially. At that time the Authority were

6 themselves subject to serious criticism, including from

7 elected representatives, and were very much under attack

8 from -- as I said, from some senior Unionist members of

9 Parliament. I should also add that the Northern Ireland

10 Select Committee reported on the Police Authority in

11 something short of glowing terms.

12 Q. So that remained a consistently poor relationship

13 throughout the period with which we are concerned?

14 A. Our contact with each other was sufficiently minimal for

15 it to be characterised more by politeness. You know,

16 there was no overt conflict. There were no overt

17 disputes. It was mostly what was not said, rather than

18 what was said that would have characterised the

19 relationship.

20 Q. Indeed, thank you. Can I ask you now about how your

21 organisation worked internally? And I'm now turning to

22 paragraph 4 of your statement in the section on

23 RNI-804-059 at the top of the page (displayed).

24 Was it usual for you to get involved in the

25 supervision of investigations?





1 A. I was not involved in the supervision of investigations

2 at all.

3 Q. Now, we know later in this particular history, the

4 history set out in your statement, that you came to have

5 some involvement in these investigations, those

6 concerning Rosemary Nelson. Was that an exception to

7 the rule?

8 A. It was an extreme exception. I think there would have

9 been no more than three cases in my entire time at the

10 Commission that I would have been engaged with to this

11 degree.

12 Q. Thank you. So the impression one gets from your

13 statement is that the supervising members, the other

14 members of the ICPC, operated very much in their own way

15 and on their own. Is that a fair way of putting it?

16 A. That is absolutely accurate, and I would underline that:

17 that not only did they have this level of individual

18 autonomy, each of them guarded it very jealously.

19 Q. So that they aren't, in a sense, reporting or

20 responsible to you in relation to their individual

21 cases?

22 A. That's correct.

23 Q. Did they hold to the principle of confidentiality in

24 relation to their cases even vis-ŕ-vis you, their

25 chairman?





1 A. Apart from the occasional anecdotal aside, yes, that

2 would be the case.

3 Q. Is it right that one of the things that concerned you

4 when you joined the organisation -- and perhaps when you

5 came to know more about it -- was that there was

6 insufficient consistency and uniformity in the

7 performance, in the decision-making of the individual

8 members?

9 A. That's true, and there were no -- there was no sense

10 whatsoever of what would be seen as even very basic

11 quality standards in terms of time management, in terms

12 of recording, et cetera. It was very much -- one could

13 see from a selection of the files that the process of

14 investigations followed the idiosyncrasies of whoever

15 was responsible for it at the time.

16 Q. It seems from your statement as though one of the

17 changes to the organisation you sought to introduce was

18 some form of threshold standards applied across the

19 board to all of your cases and by all of the supervising

20 members?

21 A. That's correct. And as part of that, my aspiration was

22 to involve the Commission staff more directly and more

23 intimately with the management of the cases in the sense

24 that they would institutionally bring -- at least

25 influence, if not bring a sense of standards to the work





1 of the members.

2 Q. Was there resistance to those changes?

3 A. It was profound.

4 Q. Did you succeed in achieving changes of that kind during

5 your time at the ICPC?

6 A. To a limited extent and towards the end of the time,

7 whenever in effect the Ombudsman's office was an

8 inevitability, members began to concede more rule and

9 more status to the Commission staff.

10 Q. Can I pick out two examples of decisions which are

11 important to us? The first is the decision to supervise

12 an investigation.

13 Were there any agreed and accepted guidelines for

14 the decision of a member to supervise or not to

15 supervise an investigation?

16 A. There were statutory directions in respect of some cases

17 which must be supervised.

18 Q. Indeed.

19 A. For instance, a discharge of firearms or whatever.

20 Q. Within the area of discretion?

21 A. Within the area of discretion. It was entirely up to

22 each member as they reviewed an incoming file as to

23 whether or not they would supervise it. And they would

24 inevitably end up as the supervisor, so they would get

25 new referrals, review them, decide yes, decide no and





1 then take on the work themselves.

2 Q. And in that sense, therefore, determine their own

3 workload?

4 A. That's right. Another element was there was no case

5 load management possible whenever one works in that sort

6 of environment.

7 Q. The allocation of files to individual cases is something

8 we have heard about from Geralyn McNally. Who was

9 responsible in the first instance for getting a file on

10 to a member's desk?

11 A. It would have been the Deputy Chief Executive who would

12 have had that as one of his tasks.

13 Q. In relation to the backgrounds and experience of the

14 various members, I think it is right, isn't it, that

15 there were two with a legal training or qualification at

16 the time when you were the Chairman; is that correct?

17 A. No, there were three.

18 Q. Three? Thank you very much.

19 So far as Geralyn McNally herself was concerned,

20 she, I think, joined the organisation at the same time

21 as you did?

22 A. She did.

23 Q. Do you know whether she was recruited with any

24 particular skill or qualification or interest in mind?

25 A. No, I don't -- what I do know is that having applied for





1 membership myself, that the criteria for appointment

2 were quite broadly drawn and she evidently met those

3 criteria.

4 Q. Thank you. How frequent was your contact with

5 individual members of the ICPC?

6 A. I would have had fairly frequent contact with the Deputy

7 Chairman and formal contact with colleagues at the

8 monthly meeting. And beyond that, there may be -- there

9 would have been informal conversations but no set

10 piece -- for instance, review of workload or anything

11 like that. There would have been -- other than that,

12 there would have been informal contacts.

13 Q. Thank you. Can I ask you finally about your role? Was

14 it part of your role to deal with or liaise with the

15 media?

16 A. Yes, yes, it was.

17 Q. Did that also fall as a responsibility to the Chief

18 Executive or was it yours alone?

19 A. It was one that we would have shared, and clearly I was

20 heavily reliant on my chief executive for briefings and

21 preparation for contact with media. I should add we

22 also had a PR consultancy that provided PR advice to the

23 Commission.

24 Q. Thank you. Can I move you on to a completely different

25 topic, and this is the question about the position of





1 defence lawyers in Northern Ireland at this time?

2 You touch on this in paragraph 18 of your statement

3 at RNI-804-064 (displayed) in the context of your

4 comments about the visit of the Special Rapporteur. You

5 say in the second sentence:

6 "I certainly shared his ..."

7 That is Mr Cumaraswamy:

8 "... concerns about the dangers and difficulties

9 that defence lawyers were facing, but there was simply

10 nothing that I could do about it."

11 Now, pausing there, can I take it, therefore, that

12 at the time of your appointment you had concerns of this

13 kind?

14 A. Yes, and -- I mean, clearly the murder of Pat Finucane

15 was high in everybody's mind, as was some of the

16 comments made by Douglas Hogg in the House of Commons in

17 respect of defence lawyers in Northern Ireland, which to

18 some extent raised the temperature and raised the

19 pressure that they were operating under.

20 Q. But you have told us you were working in England in an

21 academic job in a completely different field. So can

22 I take it that the concerns you had about this topic

23 were derived from what you had read and heard, rather

24 than experienced on the ground at this point, when you

25 joined the organisation?





1 A. Not exclusively. I used to teach at Queen's University

2 and retained a lot of contacts in the law faculty at

3 Queen's, and through my networks with them I was

4 receiving, informally of course and conversationally,

5 information about the pressure that defence lawyers were

6 operating under.

7 Q. The other point you raise in this context is in

8 paragraph 2 at RNI-804-062 (displayed), where you say in

9 the second sentence you think that:

10 "... one of the factors in the RUC reaction to

11 Mrs Nelson was an underlying prejudice in some police

12 quarters against defence lawyers where the advocate was

13 perceived as sharing their client's believed

14 culpability."

15 Can I ask you again: was that a view that you held

16 before you joined the organisation?

17 A. It was -- I would describe it more as a dull awareness

18 than an active interest in the detail.

19 Q. What was the effect of your experience as chairman on

20 that view?

21 A. Could you rephrase that?

22 Q. What was the effect of your experience as chairman on

23 the view that you held on taking up the post in relation

24 to the underlying prejudice?

25 A. As I said, when I took up the post, I had a dull





1 awareness of the controversy, and clearly there were

2 cases which I was aware of that had come through the

3 European Court of Human Rights, and it is fair to say

4 that the police had a controversial human rights record

5 regardless of what perception one takes of them.

6 In making this statement, this statement I prepared

7 in the context of my overall experience, so it doesn't

8 refer specifically to my initial stages in the

9 Commission; it refers to a view that I formed over time,

10 albeit triggered by earlier perceptions.

11 Q. What was it based on?

12 A. My ultimate view? My ultimate view was based on the --

13 on the statements which are to be found in the files.

14 My ultimate view was based on, in effect, some of the

15 transcripts of interviews with accused officers --

16 interviews, I would say, conducted by the Mulvihill

17 team, not by the RUC -- and in recent weeks,

18 presentations to this Inquiry where people are quite

19 candid about the views that they take or took at the

20 time of the role of defence lawyers.

21 Q. Did it become clear to you on joining the ICPC that

22 these were not views shared by all the other members of

23 the ICPC?

24 A. For some time they weren't any part of our discussion

25 agenda at all. So if they existed, they weren't





1 prominent in their minds.

2 Q. Well, you say at the end of this same paragraph that

3 others, including one of your members, freely expressed

4 feelings on the matter, and appears, from what you are

5 saying there, to have taken a rather different approach

6 to it?

7 A. Absolutely, yes.

8 Q. Now, so far as Rosemary Nelson is concerned, can I just

9 ask you some questions about Rosemary Nelson herself?

10 Obviously we know that there came a point when you

11 came to be involved, at least to some extent, in the

12 complaints in relation to her. What did you know of her

13 work and her reputation before you had that involvement

14 in the complaints?

15 A. All I knew about her before that was what was available

16 on local print and broadcast media: that she was based

17 in Lurgan; that she had a representational role in

18 respect of people who were accused of paramilitary

19 offences. But also -- I'm not quite sure where

20 I derived this from -- that I was aware that she was

21 a country town solicitor to whom these people came.

22 So that's all -- I think perhaps once I saw her on

23 a news broadcast.

24 Q. Can I ask you about a meeting you had with her, which

25 you tell us about in your statement, and it is





1 paragraph 24, RNI-804-066 (displayed). This is in the

2 context of the Mulvihill investigation, and you say,

3 four lines from the end:

4 "I had a brief meeting with Rosemary Nelson

5 immediately after she made her statements to the

6 investigation team. She indicated her full cooperation

7 with the investigation, but was under no illusion about

8 the likely outcome being no action against any RUC

9 officer."

10 Can I ask you first, what was the purpose of your

11 meeting her on that occasion?

12 A. My recollection is that she had come to the Commission

13 offices to make a statement to the Mulvihill team. My

14 recollection is that she called in with me by way of

15 a courtesy call. I think our meeting lasted five

16 minutes or less.

17 Q. Because presumably this wouldn't have been a normal

18 thing for you, as the chairman of the Commission, to

19 meet a complainant or a witness in the course of an

20 investigation?

21 A. It was an exceptional case and exceptional

22 circumstances. That is why. But you are right,

23 normally I wouldn't.

24 Q. Can I just ask you about the last sentence in this

25 paragraph, 24. You say that:





1 "She was under no illusion about the likely outcome

2 being no action against any RUC officer."

3 Is that derived from something she said to you in

4 the meeting?

5 A. Yes.

6 Q. So that her expectation was limited?

7 A. Absolutely. Yes.

8 Q. And as far as you could judge, did that reflect her view

9 about the system as a whole?

10 A. Well -- and I have pondered this since -- I don't know

11 what motivated Rosemary Nelson to cooperate with the

12 investigation.

13 My belief was that, for some reason, she had decided

14 to work with the system rather than ignore it and in

15 good faith to test it, to at least at some point say

16 that the formal processes had been engaged with and not

17 ignored and not bypassed. But it was evident to us and

18 to her, if one doesn't have confession, corroboration,

19 contradiction in statements or technical recording,

20 clearly the potential to secure sufficient evidence is

21 limited.

22 Q. So that, presumably, was a problem you were very well

23 aware of, namely the extent to which there was

24 non-cooperation with investigations?

25 A. Yes, it was an issue, sometimes on principle, sometimes





1 pragmatically because of civil action that the

2 complainants would have been pursuing in parallel.

3 Q. Because for those who took that position on principle,

4 presumably that was part of a general perception that

5 the system simply didn't work effectively?

6 A. That's true, and for which there is often ample

7 evidence.

8 Q. Now, in your statement you set out various perceived

9 deficiencies with the system in paragraphs 3 to 6 -- and

10 I don't want to go over those in detail, save to ask you

11 a specific question which arises out of paragraph 3.

12 Could we have that on the screen, please, at

13 RNI-804-058 (displayed)? Here, you are talking about

14 your own colleagues on the ICPC, and you say:

15 'Overwhelmingly, the members displayed complacency

16 in respect of the organisation's systemic flaws, a

17 disturbing level of collusiveness with investigating

18 police officers in the exercise of their supervision and

19 direction of complaints, and general deference to the

20 police that was little short of sycophancy."

21 These are the people with whom you continued to work

22 through your years in post, aren't they?

23 A. Hm-mm.

24 Q. So that presumably suggests that your work was

25 difficult, to put it mildly, if you were dealing with





1 people who genuinely came up to this description?

2 A. That's correct, yes.

3 Q. Because if you are right in that, then it seems very,

4 very unlikely indeed that your own organisation would be

5 operating an effective investigative process?

6 A. It was certainly handicapped to the point of disability

7 in its capacity to effectively discharge its statutory

8 duty, yes.

9 Q. Because what you are describing here is effectively

10 a level of bias or one-sidedness which would make the

11 whole process something of a laughing stock?

12 A. This was not universally the case, but substantially

13 that's -- that was how I saw it and that's how others

14 saw it, including local media, including local satirical

15 programmes.

16 Q. But you remained at the head of the organisation. What

17 did you try to do to put all these very serious problems

18 right?

19 A. Apart from my efforts to exhort colleagues to be perhaps

20 a little more proactive than they had been, we have also

21 to remember that this was an organisation which was

22 ending its life, so any impact would have been

23 short-lived and transitional.

24 What I did most of was to attempt to impart the

25 staff -- and most of the staff were legally qualified





1 and I attempted to empower them to take a more

2 influential role within the organisation and to be

3 granted more authority and autonomy. Clearly within the

4 statute, but the statute would have allowed for

5 competent staff to perform on behalf of the Commission

6 in terms of supervisory and directing tasks. And step

7 by step, myself and the Chief Executive initiated some

8 internal training programmes for them. Some members of

9 the Commission were happy for their administrative

10 partner/colleague to take a greater leadership, others

11 resisted it, but it was piecemeal and sometimes one step

12 forward and two back.

13 Q. But it sounds, then, as though you decided that the more

14 fruitful route towards improvement and change, as you

15 saw it, was via the employed administrative staff rather

16 than the members themselves?

17 A. That's true to say, and also with a view to the fact

18 that the staff were going to transfer to the office of

19 the Ombudsman as staff within the Ombudsman's office,

20 yes.

21 Q. Now, that takes me back to something you said a little

22 earlier, because you were making the point that this

23 was, of course, an organisation that was going to be

24 replaced by the Ombudsman's office.

25 Did that shape or influence your approach to this?





1 Did it make you take the view, for example, that the

2 only thing for this organisation was a form of, if I can

3 put it that way, palliative care?

4 A. My sense was that I had two responsibilities: one to

5 facilitate the change, and one to enhance the quality of

6 the maintenance task within the organisation.

7 Some of that did involve an attempt to empower the

8 staff. Some of it, one must confess, I managed by

9 stealth. For example, there was an expectation that

10 public bodies would sit in public. The Commission never

11 sat in public until that date, and I was able to drive

12 through an agreement that the Commission would begin to

13 sit in public.

14 There were aspects of IT resources and the

15 establishment of a case database which I initiated,

16 partly in order to try to see that as a beginning step

17 towards some form of case load management.

18 So some of it was by stealth, some of it was by

19 persuasion; all of it was slow and everything met with

20 varying degrees of change resistance.

21 Q. Can I ask you what you mean precisely by:

22 "... a disturbing level of collusiveness with

23 investigating police officers"?

24 A. Yes. And in responding to that I will maybe draw in

25 a couple of other things that I have picked up in the





1 papers.

2 There was an impression that the experience that

3 Geralyn McNally had with the assistant investigating

4 officer in the Nelson case was an one-off, that it was

5 a wholly unusual experience. What I found in anecdotal

6 conversations with other Commission members, was that

7 they were subject to raised levels of obstruction and

8 rudeness, which they accepted as an occupational hazard.

9 My belief is that to some degree, the difference

10 between Geralyn McNally's perception and that of her

11 colleagues had to do with perception, that they would

12 give examples of officers not coming for interview,

13 coming late or being kept waiting lengthy periods in the

14 public waiting area in a police station, rather than

15 being admitted to the back offices, that sort of thing,

16 which they appeared to think was normal behaviour --

17 Q. Sorry to interrupt you because it is quite important.

18 So as I understand it, what you are saying is that

19 it wasn't that the behaviour about which Geralyn McNally

20 complained was unique to her experience; it was simply

21 that she took a stand about it and made her

22 dissatisfaction clear, rather than simply accepting it?

23 A. Yes, it was not unique. I mean, the generality was that

24 investigating officers and witnesses and officers under

25 investigation were courteous, punctual, respectful.





1 There is the generality. But Geralyn McNally's

2 experience was -- was not unique and there were ample

3 instances of that. And if one were to do an audit of

4 some of the files, one would have seen that recorded.

5 Q. Can I take you back, then, to what you had in mind by

6 the impression "the disturbing level of collusiveness"?

7 Do you mean, therefore, the tolerance of behaviour

8 of the kind you have mentioned? Is that what you mean?

9 A. I mean the tolerance of the level of behaviour and also

10 perhaps a failure at times to assert the Commission's

11 role, not just as supervisor but with the powers to

12 direct and after files have been closed -- I had seen

13 instances where it might have been advisable to call for

14 a forensic scientific report, for example, or additional

15 evidence which, in an energetic pursuit of the evidence,

16 one might have expected.

17 Q. So is this part of your more general concern then that

18 the ICPC, as you found it, was not using its powers to

19 full effect?

20 A. No, it was not using its powers to full effect.

21 Q. Can I ask you now about the general deference to the

22 police that was little short of sycophancy? How did

23 that manifest itself?

24 A. I think it manifested itself in terms of accepting

25 advice and opinions, tolerating the failure of officers





1 to appear for interview.

2 I think there were elements of -- and given the --

3 this is a fairly small society, but I think there were

4 elements of social networking with senior officers

5 outside of the Commission environment which, in terms of

6 perception, if not in terms of reality, would give fuel

7 to those who saw it as an overly collusive sort of

8 relationship.

9 Q. There was an element, was there, of what might be

10 perceived by an outsider as too much cosiness?

11 A. Too much cosiness. And I think, again, this would be

12 reinforced at an institutional level.

13 My predecessor saw his primary responsibility as

14 promoting the effectiveness of the Commission and the

15 effectiveness of the RUC in the international stage, and

16 most of his energies were directed towards that sort of

17 public relations.

18 Q. Yes, you refer right at the end of your statement to

19 a suggestion being made to you -- this is paragraph 39

20 at RNI-804-071 (displayed) -- chronologically right at

21 the end of the events with which we are concerned,

22 whereby it was suggested to you by a retired NIO civil

23 servant that Geralyn McNally and, one assumes, the

24 Commission's job, was "to help the police".

25 Now, is that part of what you are getting at here:





1 the perception that the Commission existed to support,

2 in that case, the RUC?

3 A. Absolutely, and after all those years that have passed

4 since, those words stick very clearly in my mind.

5 Q. And as I understand it, the distinction that you draw

6 here is between that, helping the police, and promoting

7 good policing, which you would see as a rather different

8 matter?

9 A. Exactly, yes.

10 Q. Can I ask you now in relation to the exercise of powers

11 about supervision? We touched on this earlier and you

12 indicated that within the discretionary field, there

13 were no guidelines and much depended on the individual

14 judgment approach of the individual members.

15 So far as the consequences of that are concerned,

16 the expression that you use in your statement is that

17 there was "light-handed oversight".

18 Now, do you refer there -- so I'm clear about

19 this -- to the nature of the oversight when a decision

20 to supervise had been made?

21 A. Yes.

22 Q. Can I turn to the LAJI complaint and the involvement of

23 Geralyn McNally? You start to talk about this in your

24 statement in paragraph 13 at RNI-804-062 (displayed).

25 Can I ask you first, were you involved in the





1 allocation decisions in relation to the LAJI complaint?

2 A. I was -- I didn't make the decision, but I recall

3 a discussion with the Chief Executive and his deputy

4 about the person to whom it would be most suitable to

5 allocate this. The reason why the -- my colleagues

6 suggested -- and I agreed with them -- that

7 Geralyn McNally would be a suitable person, would be

8 that of the members that we had, our perception was that

9 she would be the one who would be most likely to secure

10 the cooperation of Rosemary Nelson in this enquiry.

11 Q. And why was that, can I ask you?

12 A. I think partly to do with gender, partly to do with

13 background and partly to do with professional standing.

14 Q. We know that subsequent complaints came in in relation

15 to other allegations concerning Rosemary Nelson, the

16 Colin Duffy/Rosemary Nelson complaints and others of

17 perhaps a lesser kind. A number of them were in turn

18 allocated to Geralyn McNally as the supervising member.

19 Again, was that something with which you were involved,

20 that decision-making on allocation?

21 A. My recollection is that, no, it wasn't. It was one

22 which the -- understandably, the Deputy Chief Executive

23 took because it was a way of securing greater efficiency

24 and greater consistency with the supervision of what

25 were in effect related complaints.





1 Q. But in circumstances where the management of case

2 allocation was limited, to put it mildly, clearly the

3 risk with what were obviously important, serious and

4 substantial complaints, was that an individual

5 supervising member, in this case Geralyn McNally, would

6 have too much to do?

7 A. It was not an unusual practice to group -- to group

8 complaints particularly, for example, in situations of

9 complaints arising from public order incidents where you

10 will have three or four complainants complaining about

11 assault at a particular time, at a particular place.

12 That would make good sense, and the -- there was

13 nothing at the time -- and actually, since then, I would

14 say it was particularly untoward on the part of the

15 Deputy Chief Executive grouping these. We were talking

16 about similar complainants, similar witnesses and

17 similar challenges in terms of securing their

18 cooperation.

19 Q. Can I just ask you in relation to this paragraph --

20 because you have made some comments here about the

21 investigating officer, who has a cipher, as you see,

22 P146 -- did you know that he was not the first

23 investigating officer in relation to the LAJI complaint?

24 A. I have no recollection of that. I think the straight

25 answer is no, I didn't. I didn't know.





1 Q. You see, the first investigating officer, another chief

2 inspector, was based in the Complaints and Discipline

3 branch, and then at the end of May, we know, this

4 officer, P146, took over. Were you aware of that?

5 A. I may well have been at the time, but I have no

6 recollection at this stage of it.

7 Q. Were you aware that in fact at the time you took over

8 the investigation, this officer had been part of the

9 Complaints and Discipline branch since September 1995?

10 A. I see that from the papers. That was not my

11 recollection of the information that had been shared

12 with me at the time, and I think by this stage P146 had

13 left Complaints and Discipline and had been moved to

14 uniform.

15 Q. Yes, that's what I wanted to ask you. He left

16 in January 1998 but continued to work on these matters

17 until, I think, April of that year, 1998. You think you

18 may have confused the position here?

19 A. I am still clear in my recollection that at the point at

20 which this particular assistant IO was involved with

21 this case, he had left Complaints and Discipline and had

22 transferred to uniform.

23 Q. Can I ask you then, on the basis of the assumptions that

24 you made in this, why is it that you say you think, if

25 an officer within the branch had been allocated this





1 investigation, things might well have turned out

2 differently?

3 A. I think that has to do with the fact that within

4 Complaints and Discipline, clearly they were housed

5 together in the same location.

6 This might sound semantic, but it is a point I will

7 make anyway. The formal investigating officer is and

8 always has been of superintendent rank or above, and

9 often, but not invariably, the day-to-day responsibility

10 for the investigation is handed to an assistant, usually

11 of chief inspector rank. Being in uniform and the

12 supervisor being at headquarters meant that there was

13 a -- there was less of a day-to-day oversight, as I saw

14 it, on the part of the formal investigating officer in

15 relation to his colleagues' activities.

16 Q. Given what I've now told you about the fact that this

17 officer did in fact come from the relevant branch,

18 Complaints and Discipline, and remained there

19 until January 1998 working to a superintendent,

20 presumably the force of that criticism goes, doesn't it?

21 A. Substantially it makes it considerably less of an issue.

22 Nonetheless, I would maintain that the arm's length

23 supervision that was created by that change of status

24 may have been a contributing factor to some of the

25 communication and supervisory difficulties in the case.





1 Q. That must involve an element of speculation on your

2 part?

3 A. Oh, yes, clearly. I say, you know, "might well have

4 turned out differently". That is clearly a speculative

5 statement.

6 Q. Can I ask you a broader series of questions about your

7 comments on these investigations? You were obviously

8 not involved in handling any of the files directly

9 yourself?

10 A. Hm-mm.

11 Q. And can I take it that what you learned about what had

12 happened came principally from conversations with

13 Geralyn McNally and perhaps staff members?

14 A. That's true, yes.

15 Q. And your examination of the files?

16 A. My subsequent examination of the files; I had no

17 contemporaneous access to the files.

18 Q. So to a large degree, what you have done is to examine

19 the written material, informed by whatever you have been

20 told about events, and form your judgments and views on

21 that basis?

22 A. That's correct.

23 Q. Thank you. Now, so far as Geralyn McNally is concerned

24 herself -- and reminding you of the comments we looked

25 at about the members of the ICPC, as you saw them -- is





1 it right that she displayed the characteristics that you

2 set out for us in paragraph 3 at RNI-804-058

3 (displayed)? In other words complacency, et cetera,

4 et cetera, et cetera?

5 A. No, I mean, on the contrary, she was energetic in the

6 pursuit of her responsibilities and sought to optimise

7 the statutory powers that befell her position.

8 Q. So the characterisation that you give here was not

9 a universal or general one?

10 A. Certainly it would be characteristic of the established

11 members of the Commission; much less so of the three

12 people who had joined it at the same time as I did.

13 Q. So of the total of six or seven members -- how many was

14 it: six or seven?

15 A. I would need to start counting up on my fingers here.

16 If you give me five seconds, I will go round the table.

17 There is myself, two deputies -- that makes three --

18 three new appointees -- that makes six -- and three

19 established members, which makes nine altogether, eight

20 of whom would have been involved in cases, myself as

21 chair.

22 Q. So to be clear then, the criticisms which appear to be

23 pretty general that you make here applied to what

24 percentage or what proportion of that group of nine

25 people?





1 A. Yes, this paragraph in many ways refers to the

2 organisation as I found it and as I saw it being

3 characterised as a found it. And the -- many of them

4 had been there for several years and were well

5 established in the position. But of the three new

6 members, I would say two -- Geralyn McNally and one

7 other -- displayed a fairly energetic response to the

8 responsibilities. The third one would have veered much

9 more towards the established members in terms of their

10 attitudes, approaches and perceptions.

11 Q. And so far as the other members are concerned and their

12 relationship with Geralyn McNally, it looks from your

13 statement and from the minutes as though there were

14 occasions when she found herself at your meetings in

15 a very small minority?

16 A. Those occasions related much more -- I think if we were

17 to add them up, the vast majority of times within which

18 one might have perceived a significant difference of

19 perception between Geralyn McNally and some of her

20 colleagues, centred round the Nelson case rather than

21 anything that had preceded it.

22 Q. So would it not be fair to describe her approach to her

23 work, the way she went about it, as distinct from or

24 different to that of the other members?

25 A. I would have insufficient access to the day-to-day





1 operation of either her or the other members to be able

2 to give fair comment on that.

3 Q. Now, so far as an example of that is concerned, can we

4 look, please -- and picking up something you have

5 mentioned earlier -- at RNI-222-022 (displayed).

6 This is one of your sets of minutes, and for the

7 record, as it were, it is a meeting held on

8 18 September, and is significant because it was the

9 first of your meetings to be held in public. So this

10 was a change that you had brought about, isn't it?

11 A. Yes.

12 Q. Turning to paragraph 7 on this page, at the top of the

13 page, and reminding ourselves that this is

14 now September 1998, Miss McNally gives an example to the

15 meeting of rudeness and what had been done about it.

16 And there is, in the next paragraph, an intervention

17 from another member whose name has been redacted, as you

18 see?

19 A. Hm-mm.

20 Q. "While sympathising with the treatment suffered by

21 Miss McNally, he said that he did not like the idea of

22 an investigating officer taking such action before an

23 interview."

24 Presumably that is the act of reminding an officer

25 that:





1 "... he should afford the Commission member the

2 degree of courtesy and respect similar to that shown to

3 investigating officers."

4 Then the sentence following is:

5 "Other members stated that they had never

6 experienced what had happened to Miss McNally."

7 Do you see that?

8 A. Yes.

9 Q. Earlier, what you were suggesting was that the

10 experiences of rudeness, et cetera, of which she

11 complained were more widespread, but they were simply

12 dealt with, approached differently by her colleagues.

13 This looks like an example, doesn't it, of the other

14 side, where effectively in the meeting others are

15 saying, "Well, you may have been having these problems,

16 but we aren't and haven't." Was that a common

17 phenomenon in these meetings?

18 A. Not that I would recollect. Clearly I would need to

19 review the mention again and sort of tune into the

20 circumstances. Again -- and the minutes doesn't go into

21 detail on the degree of rudeness that Geralyn McNally

22 experienced, but my belief is that it was fairly

23 extreme. And I think it was a question of whether she

24 got the job from the dole queue, or something to that --

25 fairly extreme. And I would accept that other members





1 might well have had many more minor discourtesies than

2 that.

3 Q. The examples of behaviour of this kind that she

4 experienced and brought to the attention of her

5 colleagues, did they include examples outside the

6 complaints with which we are particularly concerned,

7 i.e. the Nelson complaints?

8 A. I can think of two circumstances. One which was where

9 she had concerns about the response to the death in

10 custody of a member of the travelling community, and I

11 think one where she was concerned about delays in

12 conducting the investigation brought about by an

13 investigating officer going off to Romania to build an

14 orphanage as some part of some voluntary group and the

15 case being left unattended, so to speak.

16 They are the two things I remember and they stick

17 out because they were technically unusual. But apart

18 from the Nelson case, I have no recollection of it being

19 a consistent pattern of communication within the

20 Commission.

21 Q. Now, so far as the problems which she encountered are

22 concerned, can you remember now when she first mentioned

23 the difficulties she was encountering in these

24 particular investigations?

25 A. Without reference to the documentation, I can't, no.





1 Q. But did you take it as part of your role as chairman to

2 discuss concerns and problems of that kind with members

3 outside the formal context of these sorts of meetings?

4 A. I would have done so informally, but it would have

5 been -- it would have been rare, partly because members

6 wouldn't invite anything other than informal

7 conversation.

8 My recollection is that the first time I was aware

9 of these difficulties was at a Commission meeting and

10 the informal conversations followed that. I would have

11 invariably involved the Chief Executive in anything like

12 that.

13 Q. So the first reference, you think, made by her to these

14 difficulties was in the context of her report to

15 a meeting?

16 A. I could stand corrected on that, but that's my

17 recollection and my belief.

18 Q. But is it fair, therefore, to assume that thereafter

19 there were informal conversation between you over the

20 subsequent months and probably years?

21 A. That's true, yes, that is true.

22 Q. As a matter of fact, given what you have told us about

23 the way the Commission operated, to whom could she turn

24 for advice and help in the Commission?

25 A. In the absence of any mechanism, potentially she really





1 only had the full-time senior staff and myself. And

2 this is partly to do with the contingencies that are

3 necessary in the event of members having to sit on

4 disciplinary tribunals. And, therefore, they need to

5 insulate themselves from all of the processes and

6 evidence prior to that.

7 Q. Which enforces the existing regime on confidentiality?

8 A. Yes.

9 THE CHAIRMAN: I would have thought probably the

10 stenographer is entitled to a break now. We will have

11 a quarter of an hour break.

12 (12.00 pm)

13 (Short break)

14 (12.15 pm)

15 THE CHAIRMAN: Yes, Mr Phillips?

16 MR PHILLIPS: Mr Donnelly, you were telling us before the

17 break in vivid detail about the organisation as you

18 found it, and some, at least, of the members. And we

19 have been through the various criticisms and comments

20 you have about that, and you have explained to us that

21 you sought in your time as chairman to bring about

22 changes in the organisation.

23 Can I ask you this question: you said that one of

24 the concerns you had was that there was an inappropriate

25 level of cosiness -- in fact, that was my word --





1 A. Yes.

2 Q. -- between some of the members and police officers?

3 A. Hm-mm.

4 Q. Did you think that there was too much in the way of

5 shared attitudes between some of the members and police

6 officers?

7 A. Yes, absolutely, yes.

8 Q. Was there too much in the way of shared backgrounds, as

9 you perceived it?

10 A. Well, it depends, I mean, about sort of class cultural

11 backgrounds or political backgrounds or ...?

12 Q. You were involved in an organisation in a deeply divided

13 community.

14 A. Yes.

15 Q. Did the membership of the Commission, as you found it,

16 fully reflect all parts of that community?

17 A. Not all parts of it, and could I just add by way of

18 explanation that myself and the people who were

19 appointed at the same time as I was were appointed

20 through the current process of public appointments. All

21 previous members had been appointed by way of

22 invitation.

23 Q. Did you see your appointments, the three of your

24 appointments, as a deliberate attempt to broaden the

25 membership of the ICPC?





1 A. Yes. I recollect a discussion with senior officials at

2 the NIO, whenever I sort of -- I was fairly bemused as

3 to why I was invited to take the position, and one of

4 them very tellingly said to me that, "We wanted to break

5 the mould". So I -- I'm not part of what would be

6 traditionally seen as the great and the good at the

7 time.

8 Q. Did you perceive Geralyn McNally's appointment to be

9 part also of breaking the mould?

10 A. I would have perceived it as such, yes.

11 Q. With regard to what specific aspects of her background?

12 A. With regards to her youth and with regards to her very

13 active engagement in the NGO sector, which was concerned

14 with rights issues.

15 Q. So do you think that those appointments did in fact

16 serve to bring about a change in the make-up of the

17 Commission?

18 A. I think they brought new challenges to the way the

19 Commission did business in ways which some colleagues

20 found easier to engage with than others.

21 Q. Do you think that part of the problems that

22 Geralyn McNally encountered with her own colleagues

23 derived from the fact that her background, as well as

24 her approach, was different from theirs?

25 A. My belief is that the difficulties emerged from her --





1 much more from her approach than her background. I

2 think anybody, regardless of their background, who had

3 taken the approach to their work that she did would have

4 encountered similar challenges and resistance.

5 Q. Based on your experience in the Commission as its

6 chairman, did you think that the process of widening out

7 the membership so as more fully to reflect all parts of

8 the community was an important one?

9 A. I think, given the stage the Commission was at in its

10 life cycle, it would have -- it was less significant

11 than it would have been had such a move been made some

12 years earlier.

13 Q. Because, of course, the Commission was meant to be --

14 and to be perceived to be -- independent of the police

15 force, wasn't it?

16 A. That was the expressed intention, yes.

17 Q. And there were many at this stage who continued to

18 perceive the police force as having a disproportionately

19 high membership from one part of the two-part community?

20 A. That's correct, yes.

21 Q. So it was presumably important for the perceived

22 independence of the Commission that that should not also

23 be seen as a characteristic of the membership of that

24 Commission?

25 A. Yes. Both the membership and the approach that the





1 various members would have taken to their task would

2 have been significant -- made significant contributions

3 to at least perhaps marginally enhancing the confidence

4 that some elements of the community lacked in policing.

5 Q. To be credible, the Commission had to be perceived to be

6 truly independent?

7 A. To be credible, it had to be perceived to be truly

8 independent. And my sense is that by the time I came to

9 it, the deed was done, that -- there was no circumstance

10 in which, had the Commission had a continuing life, it

11 would have been able to redress any negative perception.

12 Q. Thank you. Now, can we just return to the LAJI

13 complaints, please, and to your involvement in them?

14 As I said, you start to deal with this in

15 paragraph 13, which is at the very bottom of page

16 RNI-804-062 (displayed). At the very bottom of that

17 page, you will see that you tell us that from very early

18 in the investigation, Geralyn McNally encountered

19 problems with the investigating officers' attitudes and

20 behaviour.

21 Now, you told us, I think, earlier that the first

22 time you were aware of this was when it was reported in

23 a meeting of the ICPC. Is that right?

24 A. That's my recollection, yes.

25 Q. And in order to assist you, perhaps we can have a look





1 at what I believe to be the first such reference, at

2 RNI-222-004 (displayed).

3 We looked at the first of these perhaps under 8

4 a little earlier. I think I'm right in saying that that

5 first paragraph -- do you remember we looked at it in

6 connection with your meeting with the

7 Chief Constable? -- concerned another officer, a

8 completely different matter?

9 A. Yes.

10 Q. The second paragraph, I think, is a paragraph relating

11 to this investigating officer, isn't it?

12 A. That's my recollection, yes.

13 Q. And we have heard evidence about what led to this; it

14 was an interview with somebody in relation to the

15 Colin Duffy complaints.

16 So can we take it then that it was at this stage

17 in October 1997 that you first learnt of the

18 difficulties she was encountering?

19 A. That's my recollection, yes.

20 Q. You said that after the formal meeting, you had informal

21 conversations. What, as far as you can remember, was

22 the subject of those conversations?

23 A. I have no detailed recollection of what took place. I

24 would conjecture that it would probably have been -- it

25 would definitely have involved Mr Mullan and the Chief





1 Executive, just looking at how we might manage that

2 communication.

3 But that is not based on firm recollection. That's

4 what I anticipate we would have been discussing.

5 Q. Can I take it that in general -- because we are now

6 obviously going to start to delve a bit more into the

7 detail -- your recollection of the detail is not good at

8 this point?

9 A. That's true, and I think that's -- I would suggest that

10 that is primarily because at that time it hadn't assumed

11 the profile that it ultimately did.

12 Q. Because in terms of the Commission's involvement, it

13 wasn't until the next year, in fact, 1998, that the

14 matter really took off; is that fair?

15 A. That's true, yes.

16 Q. But so far as this earlier phase is concerned, would it

17 be fair to say that what you have done in looking at

18 this material, in providing your statement, is to

19 reconstruct from the documents that the Inquiry has

20 provided to you?

21 A. Yes, that would be fair, yes.

22 Q. Thank you. So with that important caveat in mind, are

23 you able to assist us as to whether, on first hearing

24 about these matters, having the discussion that you have

25 just mentioned, any plan of action for the future was





1 agreed in relation to this problem and this case?

2 A. If there had have been, I would have had clear

3 recollection of it. It seems that the way this had been

4 managed for some time was attempts or failures to

5 attempt to resolve problems as they arose, rather than

6 to take a wider, longer term view. So as each incident

7 happened, it is clear on reviewing it that it was an

8 incremental deterioration, as opposed to a big bang-type

9 problem.

10 Q. Was that reflected in the extent to which reports came

11 your way; in other words, you weren't suddenly

12 confronted with a massive amount of detail --

13 A. Precisely.

14 Q. -- perhaps a drip-feed of much smaller points?

15 A. Precisely, yes.

16 Q. So do you think there would have been discussions

17 between you and Geralyn McNally about this from time to

18 time, from this point, mid October 1997?

19 A. Not with any frequency. I think I probably got more of

20 my updating from the Commission staff, who would have

21 informed me occasionally of the latest challenge, the

22 latest difficulty.

23 Q. Can I ask you, how would that be done? Would it simply

24 be in a conversation?

25 A. It would simply be in a conversation. Again, to





1 emphasise the autonomy of the members, there is no way

2 that that would have come to me by way of a written

3 minutes or a memo or briefing notes.

4 Q. Now, so far as a later stage is concerned, can I ask you

5 to look at your statement again at RNI-804-064

6 (displayed), and it's paragraph 19 at the bottom of the

7 page. There, you tell us that:

8 "As the investigation into Rosemary Nelson's

9 complaints was drawing to a close, Miss McNally was

10 making it clear to me that she is far from satisfied

11 with the investigating officer's conduct of the case."

12 It may be that you can't help, but are you able to

13 now put a date on that; in other words, the point as the

14 investigation was drawing to a close?

15 A. No, I couldn't put a date on that. I would need to

16 plough my way through all this paperwork to be able to

17 narrow it within a given set of weeks. No, I am afraid

18 I can't help you on that.

19 Q. Given the limited time available, perhaps I can suggest

20 a short cut? Can I take you to some of the minutes and

21 that will perhaps give us a brief -- very brief --

22 chronology.

23 The first minute after the August one we have

24 already seen I would like you to look at is at

25 RNI-222-009 (displayed). This is a meeting on 20 March.





1 You are in the chair, she is present, other names are

2 redacted. And the relevant passage is on the next page

3 and it is at paragraph 7.2:

4 "Miss McNally reported that in a particular case she

5 is supervising, the investigating officer is not

6 complying with her directions. Since this officer had

7 been brought to the Commission's attention previously,

8 the Chairman asked Miss McNally to keep the Commission

9 informed."

10 So would it be a fair inference from this that by

11 this stage you were aware that matters were more

12 serious, and effectively that was what led to there

13 being now an agenda item, effectively, in relation to

14 this complaint from this point?

15 A. I think that is fairly accurate. I think that would be

16 the trigger, yes.

17 Q. Again, so you are reminded of the chronology, we know

18 that at about this time, in fact a couple of days before

19 this, there was a difficult issue about which

20 Miss McNally was unhappy and, indeed, she wrote formally

21 raising her complaints and concerns on this day,

22 20 March, with the investigating officer's line manager?

23 A. Hm-mm.

24 Q. Just moving forward, again, to put it in context,

25 please, we can see the next minutes that we have are





1 dated 22 May, RNI-222-013 (displayed). I am afraid we

2 don't have the April minutes. They seem to have

3 disappeared. And the relevant paragraph is RNI-222-015,

4 paragraph 7.1 (displayed), at the top of the page:

5 "Miss McNally gave an update on the supervised case

6 mentioned at 8.3 of the April minutes."

7 As I say, we don't have those:

8 "She stated that she had decided to issue a

9 qualified statement referring to her concerns ..."

10 You see:

11 "After a full discussion, the route of writing to

12 the Secretary of State is concerned ..."

13 We will come back to that.

14 The final one I wanted to show you in this very

15 short chronology is the next month, 19 June,

16 RNI-222-015.500 (displayed), and at the bottom of the

17 page you see there in fact what happens is that

18 a decision to proceed rather differently was taken.

19 Just going back to the first of those minutes,

20 therefore, which is March 1998. I think you are now

21 satisfied, I think, that by that stage certainly you

22 would have been much better and more fully informed

23 about what was going on?

24 A. Yes.

25 Q. And can I take it that that was based at least primarily





1 on what Geralyn McNally would have told you perhaps

2 before this meeting we looked at on 20 March?

3 A. I do not have any clear recollection, but I would

4 anticipate that she would have had a discussion with

5 myself and the Chief Executive and the staff member

6 allocated to the case in advance of the meeting, yes.

7 Q. But would it be fair to say that from this point,

8 20 March, the matter took on a much greater importance

9 and was the subject of much more regular discussions and

10 consideration?

11 A. That would be accurate, yes.

12 Q. Both in the meetings, as it were, formally, and outside

13 the confines of the meetings?

14 A. And outside the confines of the Commission as well.

15 Q. Can you help me with what you have just said? How was

16 it discussed outside the confines of the Commission?

17 A. By various means. Mostly through the informal networks

18 between senior officials in the Commission and Police

19 Division and RUC that we were beginning to signal that

20 there was a distinct probability that, for the first

21 time in the Commission's history, this -- that there

22 would be a failure to signify satisfaction with the --

23 satisfaction with the investigation.

24 And just harking back to an earlier point we were

25 making an, organisation that has been in existence for





1 so many years without encountering this problem, I think

2 was a strange phenomenon in itself -- yes, that is when

3 myself and my chief executive were beginning to be

4 quite/very concerned with aspects of the public

5 interest, aspects of international concern which had

6 already been expressed, not just by non-government

7 sector, but also by United Nations. And we were

8 increasingly concerned that the repercussions would be

9 quite considerable and, therefore, felt it important

10 that we alert those to whom the repercussions might

11 befall that this was a potential.

12 Q. There was quite a lot, if I may say so, bound up in that

13 answer. I would like to pick up various points you have

14 made. The first is this question of signalling, as you

15 put it?

16 A. Yes.

17 Q. How did you do your signalling and to whom?

18 A. I did most of my signalling at arm's length through my

19 officials.

20 Q. How would they do their signalling?

21 A. They would do it by telephone and conversation. I think

22 we would have -- they would have been careful -- because

23 these were concerns rather than facts. It was a matter

24 of communicating concerns informally to those people who

25 might be most affected by it.





1 If I may, could I pick up on the first minute at

2 which it was decided to second this statement to the

3 Secretary of State?

4 Q. Yes. Perhaps we can get that up on the screen for you.

5 That is at RNI-222-015 (displayed). Thank you.

6 7.1, do you see?

7 A. Yes, I do not have the statute in front of me, but

8 Article 17/2 is a piece of the legislation which

9 empowers and, in fact, requires the Commission to bring

10 to the Secretary of State's attention matters of serious

11 or public concern.

12 Again, this had never been done by the Commission

13 throughout its history. To some extent the discussion,

14 as I recall it, was moving towards this point because it

15 is a valid point to make, but also -- it was also seen

16 as a tactic to waylay the possibility of the refusal to

17 sign the certificate of satisfaction.

18 And because it was a -- very much the organisation

19 writing to the Secretary of State, my recollection is

20 that I offered to do a draft for discussion and debate

21 prior to its dispatch.

22 In the period between that and when we again met,

23 clearly views had changed, minds had changed and that

24 report did not proceed to the Secretary of State.

25 Q. It might help at this point to show you what





1 Article 17/2 does provide because we have got

2 a reference here at RNI-223-025 (displayed).

3 This is in fact, I think, in the context of a draft

4 report that I think probably you prepared. Do you see

5 the third paragraph on the page?

6 A. Yes.

7 Q. "Any matters coming to its notice under this part to

8 which it considers that its attention should be drawn by

9 reason of their gravity or other

10 exceptional circumstances."

11 A. That's right, yes.

12 Q. Can I just go back to your longer answer. You have told

13 us about how the signalling happened; in other words,

14 that your administrative staff undertook it. Can you

15 just clarify for me who the recipients of such

16 signalling would have been? Would it have included

17 officials in the NIO?

18 A. It would definitely have included officials in the NIO.

19 Q. What about officers in the police force?

20 A. It would have certainly -- if not the Chief Constable,

21 it would have included the Assistant Chief Constable for

22 Complaints and Discipline.

23 Q. Now, in terms of chronology, can I just ask you whether

24 you know this. We have seen the minute of 20 March.

25 The reports, the main reports prepared by the





1 investigating officers on the LAJI and then the

2 Colin Duffy/Rosemary Nelson matters are drafted in April

3 and presumably reached your organisation shortly

4 thereafter?

5 A. Hm-mm.

6 Q. In other words, some time before the minute of 22 May

7 that we have just been looking at.

8 Given the nature of the signalling that you have

9 described, are you able to help us with when you think

10 you first started to signal?

11 A. My recollection is that it would have been immediately

12 on the heels of the decision to prepare the report on --

13 under 17/2.

14 Q. So that decision was taken in May, on 22 May, at

15 RNI-222-015, just to remind you of the minute

16 (displayed).

17 Do you see that?

18 A. Which paragraph?

19 Q. 7.1; the top of the page.

20 A. Yes.

21 Q. And you think it was that, do you, which led to the

22 first outbreak of signalling?

23 A. Yes, as much as anything to alert them to the

24 possibility of the failure to certify it.

25 Q. Indeed.





1 A. But also -- I mean, clearly if a report was going to be

2 sent under Article 17/2, it would be useful for both

3 ministers and officials to not have it just arrive in

4 their post, to be alert to the fact that it was on

5 its way.

6 Q. They tend not to welcome surprises.

7 A. Exactly.

8 Q. And particularly not given the significance of what was

9 in prospect here, namely the first ever occasion on

10 which a qualified statement had been issued by the

11 Commission?

12 A. Hm-mm.

13 Q. And presumably we must see all of this, and you must

14 have seen it at the time, in the context of the

15 sensitivity of all policing issues which you mentioned

16 earlier?

17 A. I think, yes, exactly. And also in the context of the

18 interest that legislatures in the United States were

19 taking and in the interest that the European Commission

20 on Human Rights were taking in the case.

21 Q. That's my next question. Was it always a factor

22 operating in your mind that these complaints were the

23 object of international interest and, in particular, of

24 focus by the Special Rapporteur?

25 A. Yes, I have to say that where it was clear that my





1 colleague focused her entire energies on the management

2 of the case, I saw it as my responsibility to view this

3 in the wider local, political, national and

4 international context, yes.

5 Q. And the international aspect of this and the scrutiny

6 which was likely to fall on the system simply served to

7 increase its political importance, didn't it?

8 A. Yes, it did. I mean, given that Mr Cumaraswamy was

9 commenting negatively already in his draft submissions,

10 this case and the failure to certify it would have

11 reinforced the perceptions that he was bringing to the

12 entire environment.

13 Q. We will come back to him in a moment. But his visit to

14 Northern Ireland -- I think you met him -- at the end

15 of October 1997 and in March, we know, the business of

16 his draft report -- February/March, in this year,

17 1998 -- was under discussion. It, I think, was released

18 as a final report at the beginning of April 1998.

19 So far as that's concerned, can I just ask you,

20 please, to look at a note attached to an earlier set of

21 minutes? And we can see the March-minutes at

22 RNI-222-012 (displayed).

23 Here -- I think it is probably standard reporting --

24 you tell the meeting what engagements you have had in

25 the preceding period since the last meeting, and one of





1 the meetings -- you see the third one -- you see, is the

2 meeting with the Chief Constable, and then various other

3 meetings are set out.

4 So can I take it, based on your earlier answers,

5 that at this stage, early March 1998, you would not have

6 been raising this matter, still less signalling, the

7 looming problem with the Chief Constable?

8 A. I don't imagine I would have -- I have no clear

9 recollection of the content of the 2 March meeting,

10 but --

11 Q. It sounds from what we have looked at as though it was

12 too early?

13 A. It seems as though it was too early, yes.

14 Q. Now, you mentioned in your statement and in earlier

15 answers the aspect of your role to engage with the Irish

16 Government and in particular through the mechanism of

17 the Secretariat, and we will look at a number of

18 documents on that.

19 But can I show you the first one, please, from this

20 period, May 1998 now, at RNI-202-158 (displayed) because

21 it looks as though you had requested a meeting with the

22 Irish officials about what was going on. This is

23 a redacted document, but if I could ask you, please, to

24 look at the largely unredacted document following page,

25 RNI-202-159 (displayed), we will see the case with which





1 we are concerned.

2 Here you see that you were telling them in strict

3 confidence that in the next two or three weeks there

4 would be this certificate of dissatisfaction, as you put

5 it. Do you see that?

6 A. Yes, I do, yes.

7 Q. And you make the point there that it would be the first

8 time that such a thing had happened in the history of

9 the organisation?

10 A. Hm-mm.

11 Q. We will come back to that in a minute, but there are

12 a number of minutes of meetings of this kind between you

13 and the Chief Executive and Irish Government officials.

14 To what extent did meetings of this kind give rise, as

15 far as you were concerned, to problems of

16 confidentiality?

17 A. Well, if -- part of my mandate was to have communication

18 with the Irish side in the Anglo-Irish Secretariat, and

19 they had a pre-occupation with some of the cases and

20 also the inter-governmental dimensions of those cases.

21 We felt that it was reasonable for us to share

22 information with them. This was -- okay, these are

23 minutes, but at the time it was done in confidence and

24 there was no expectation that they would be -- that in

25 any way that would be undermined by their wide





1 circulation.

2 But having said that, there was little in what we

3 communicated which impinged on the detail of -- impinged

4 on the detail of the cases. In fact, had they sent

5 a representative to the Commission meetings, they would

6 have gained most of this information from attendance at

7 that.

8 Q. Because those meetings were public by this stage?

9 A. Those meetings were public by that stage. And don't

10 forget that there would have been a number of other

11 organisations briefing on this, including the Committee

12 on the Administration of Justice, British Irish Rights.

13 And so from my perspective, it was important to give

14 an honest presentation of where we were at.

15 Having said this, all these conversations took place

16 after the UK authorities had been well alerted to it.

17 So it is not as if the Irish side were privy to

18 information in advance of communication to UK

19 authorities.

20 Q. Well, you see, you say that. If we look back to the

21 previous page, RNI-202-158 (displayed), we see that the

22 meeting took place on 19 May because it is dated the

23 20th and refers to a meeting "here yesterday".

24 We know that the meeting of your organisation took

25 place on the 20th because we have just seen that





1 together, and you said it was after that that you

2 started to -- sorry, took place on the 22nd, I'm

3 sorry -- you started to signal to NIO officials and

4 others. It looks, therefore, as though you were giving

5 an early steer to officials of the Irish Government?

6 A. That wouldn't be the case, and given the chronology of

7 these papers, it would have been absolutely the case

8 that we would have not signalled to the Irish side in

9 advance.

10 So to reiterate -- to recap on what I have said

11 earlier, those signals would have been sent in advance

12 of the May meeting of the Commission.

13 Q. Are you able to assist with how far in advance; in other

14 words, when roughly?

15 A. It would have been days rather than weeks.

16 Q. Before 22 May?

17 A. Yes.

18 Q. And you have made the general point about you seeing it

19 as part of your remit to engage officials through the

20 medium of the Anglo-Irish Secretariat.

21 Why did you think it important in this case, because

22 the meeting is at your request, to brief them so fully

23 about these pending developments?

24 A. Well, the note reflects the conversation. It was not an

25 extensive briefing; it did not go into detail about the





1 various problems and challenges that had been had. It

2 was just a signalling that the probability was that this

3 was coming down the line. And it was at our request

4 because just as we had briefed NIO officials and others,

5 we saw it as part of the expected mandate that we also

6 briefed the Irish side.

7 Q. And if you had been pressed about this at the time, do

8 you think you would have found statutory authority for

9 the disclosures that were made to the Irish Government?

10 A. I would not have seen any statutory prohibition on it

11 and this was part of an institutional mandate, which

12 I said earlier in my statement. And most of our contact

13 with the Irish side or the Secretariat had to do with

14 preparations for the Ombudsman's office and some of

15 those institutional changes.

16 So this was a small part, an unusual -- often they

17 would ask questions about cases, but they would always

18 get the same answer: that the investigation is ongoing

19 and the complainant will have the report, and if the

20 complainant wants to share it with you, that is up to

21 them.

22 These were unusual circumstances. As you can see,

23 we had also discussed another high profile case which

24 was also the subject of other enquiries elsewhere.

25 Q. Looking at the comment in relation to these cases --





1 RNI-202-159 again, please (displayed) -- it seems from

2 the first paragraph as though at this stage it was still

3 the intention to sign a certificate of dissatisfaction?

4 A. Hm-mm.

5 Q. So can I assume that by this point, 19 May, that was

6 something you had discussed in detail with

7 Geralyn McNally because it was to be her statement?

8 A. Yes, I wouldn't be certain as to the degree of detail,

9 but I would be certain as to the fact that she was

10 adamant that that was the course of action that she was

11 planning to take.

12 Q. Yes. Now, moving down the note, do you see in the

13 fourth paragraph under this heading of "Colin Duffy",

14 you are recorded as saying that:

15 "The ICPC's dissatisfaction arose in part because

16 there had been threats to lives and there were also

17 UN-related aspects."

18 Are you able to help first about the UN-related

19 aspects? What were the --

20 A. That was the Mr Cumaraswamy -- the UN High Commission on

21 Human Rights Inquiry.

22 Q. Indeed, but how did that lead to the dissatisfaction?

23 A. It doesn't lead to the dissatisfaction.

24 Q. Do you think the note is wrong in its record there?

25 A. The note isn't accurately -- the dissatisfaction arose





1 from the conduct of the case. And from the Commission's

2 perspective, there were UN-related aspects, but the two

3 are quite separate and this minute -- I see there is

4 a handwritten "Cumaraswamy [question mark]" under that

5 and that is the concern. But they are obviously

6 interrelated but separate.

7 The UN interest would have not in any way been

8 a foundation for satisfying -- for signalling

9 satisfaction or otherwise.

10 Q. Is there also inaccuracy in the expression "threats to

11 lives"?

12 A. Well, it would be alleged threats to lives. The concern

13 about -- and it is the foundation of my concern in

14 respect of the RUC investigation at the time -- was that

15 the allegations were at a very high level. But,

16 therefore, one would anticipate the highest level of

17 professional response to them. The concern that that

18 phrase encapsulates is that the investigation fell far

19 short of what would be expected in the face of such

20 serious allegation.

21 Q. But was it your understanding of the nature of these

22 complaints that there had been threats, plural, to

23 lives, plural?

24 A. No, I was aware of the -- I mean, I think this is an

25 Irish Department of Justice minute summary --





1 Q. So it is inaccurate in that sense?

2 A. It is inaccurate in that sense, yes. And the truth is,

3 I think, from other sources, particularly British Irish

4 Rights. The Irish Government would have been well aware

5 of lack in detail in the complaints, I would say.

6 Q. You would have been aware by this stage, I think you

7 have indicated before, of their interest in these cases?

8 A. Yes, they had interest in those cases, I think partly

9 because they were being lobbied by individuals and

10 groups.

11 But also, back to a point that you made earlier,

12 this has to be seen in the context of very delicate and,

13 at times, very fragile progress in respect of law

14 enforcement in Northern Ireland.

15 Q. Indeed. It came very shortly after the

16 Good Friday Agreement?

17 A. Yes, it did.

18 Q. Can I ask you in relation to the signalling again,

19 before returning to this note: you said that you were

20 sure the signalling to the NIO -- I think it was to the

21 NIO -- would have happened in advance of this meeting.

22 Can I take it from what you said earlier that the

23 signalling would have been done on the telephone?

24 A. It will have been done on the telephone and very

25 possibly by meetings between my chief executive and





1 middle ranking officials at the NIO.

2 Q. Had there been contact of that kind, of any kind, would

3 you have expected it to have been noted in the ICPC

4 files?

5 A. No, I would not have expected it to have been noted.

6 Q. Sir, would that be a convenient moment?

7 THE CHAIRMAN: Certainly. 2 o'clock.

8 (1.00 pm)

9 (The short adjournment)

10 (2.00 pm)

11 MR PHILLIPS: Mr Donnelly, I am afraid before we can take

12 a bold step forwards, we have to take a few steps back

13 to the question of signalling.

14 Now, you have told us about the various types of

15 signalling and I don't want to go over the chronology

16 that we have now established together. I wanted to ask

17 you in the light of your answers about telephone contact

18 and I think you said possibly meetings with NIO

19 officials, whether you can assist us with who the

20 regular points of contact were within the NIO for your

21 organisation and your officials.

22 A. Yes. Certainly it would have been the Head of the

23 Police Division.

24 Q. We have to be a little bit careful in the Inquiry about

25 names, as you know.





1 A. That is why I --

2 Q. I appreciate your caution.

3 A. Yes.

4 Q. Are you referring to Christine Collins?

5 A. I'm referring to Christine Collins and, more

6 particularly, the person immediately junior to her.

7 Q. Would that be Simon Rogers?

8 A. That would be Simon Rogers, and Simon Rogers is somebody

9 with whom the Chief Executive would have been in

10 frequent and probably daily contact one way or another,

11 about various matters but -- including this one.

12 Q. So if you are not able to say because you weren't

13 involved directly with the signalling, you are not able

14 to give specific details about it, is it likely, based

15 on what you have said, that the signalling by the Chief

16 Executive would have been to one or other of those civil

17 servants?

18 A. It would have been, yes.

19 Q. Now, so far as further signalling is concerned, I think

20 you said during your answers that you would have sent

21 a signal out to the Head of Complaints and Discipline?

22 A. Yes.

23 Q. And would that be to the Assistant Chief Constable?

24 A. That would have been to the Assistant Chief Constable.

25 Q. And again, would that have taken the form of telephone





1 contact?

2 A. Yes.

3 Q. What about meetings in that case?

4 A. My sense of the nature of these communications would

5 have been that it would have been more likely to have

6 been telephone conversation with ACC, perhaps the Deputy

7 Chief Executive, having passed on that information on

8 the back of other communications, the communications

9 with the NIO officials. My belief would be there would

10 have been a mixture of telephone and personal contact.

11 Q. Can I take it that your answer in relation to the

12 Assistant Chief Constable would be the same as for the

13 signalling to the NIO officials, namely that you

14 wouldn't have expected any of this to be recorded in the

15 ICPC files?

16 A. I'm quite certain that it wouldn't have been.

17 Q. Is there any particular reason for that?

18 A. Partly to do with the informality of the nature of the

19 contact and partly to do with us being -- us, meaning

20 myself and the Chief Executive on my behalf -- not being

21 seen to interfere or to pre-empt in any sort of formal

22 black ink on white paper account of -- these were

23 concerns as opposed to facts, so it was seen by us at

24 the time, and I still see it, as appropriate to pitch it

25 at the level which we did.





1 Q. Can I ask you to go back with me to your note of the

2 meeting with the Irish civil servants, and that is at

3 RNI-202-159 (displayed) under the heading "Colin Duffy"

4 there. The relevant passage, which we looked at before.

5 You have made the point that you were not involved

6 in the signalling, but looking at that first paragraph,

7 is that, do you say, the sort of message that would have

8 been signalled to NIO officials and to the Complaints

9 and Discipline branch?

10 A. Yes -- the communication with the NIO would have been in

11 much more specific and much more detail, but that would

12 have been the -- that would have been the flavour of the

13 communication. And the timing would have been based on

14 the perceptions that the Commission staff would have had

15 of where the case was going and when this might surface.

16 Q. Thank you. So as far as you are concerned then, your

17 evidence is that this momentous step of the signing of

18 a certificate of dissatisfaction, as you put it, would

19 have been known about in those two quarters by this

20 time, or before this meeting which took place on 19 May?

21 A. Yes, that would have been the --

22 Q. So nobody, in your view, in those two organisations was

23 entitled to feel surprised by what subsequently happened

24 in fact in June?

25 A. Certainly nobody within the circle with whom we had





1 communicated would have been entitled to be surprised.

2 The degree to which they communicated that within their

3 own organisations we were uncertain of.

4 Q. Indeed. Can I ask you one further question about this

5 passage?

6 At the very end of it, at the bottom of the screen,

7 it records "the visitors" -- and that is you and the

8 Chief Executive, mentioning that:

9 "The ICPC supervising commissioner in the case was

10 Geralyn McNally, who is an Irish speaker from

11 Dungannon."

12 Do you remember why that particular point -- that

13 she was an Irish speaker from Dungannon -- was raised in

14 the course of this meeting?

15 A. My recollection would be why we would raise that at all

16 would be to do with the perceptions that those who might

17 have been hostile to this process, or to these outcomes,

18 would latch on to aspects of Geralyn McNally's profile

19 that they would seek to exploit by way of undermining or

20 in some sort of way contradicting her position.

21 Q. So --

22 A. The facts as they emerged -- this was fairly prophetic.

23 Q. In your view this was more than borne out by subsequent

24 events?

25 A. Absolutely, yes.





1 Q. Does it also take us back to the questions and to the

2 comments you were making before lunch about the profile

3 of the organisation?

4 A. To attribute all this to the profile of the

5 organisation, I think, is a stronger statement than I

6 would actually make.

7 What I would say is that clearly in a divided

8 community such as the one that we were in, and to some

9 extent still are, are flavours of perception and

10 prejudice which emerge occasionally. I wouldn't want

11 anybody to think that this was an organisation which

12 split itself in terms of sectarian oppositions, and in

13 fact the person with whom I had the closest working

14 relationship, my chief executive, was from

15 a distinctively different sort of background to myself

16 and we had one of the most productive working

17 relationships that I have experienced either before or

18 since.

19 Q. Is this Mr McClelland?

20 A. Mr McClelland, yes.

21 Q. Can we move back to the chronology and to the minutes of

22 22 May? And just taking the stages as briefly as we

23 can, at RNI-222-015 (displayed), a paragraph we have

24 looked at before, we see that it is stated there, as had

25 been stated to the Irish civil servants, as we have





1 seen, that Miss McNally intended to issue a qualified

2 statement. That was the big step that we talked about

3 before lunch?

4 A. Yes.

5 Q. However, it looks as though there was then a discussion

6 in the meeting, after a full discussion and in fact

7 a different course was agreed upon. Is that a fair

8 summary?

9 A. Yes, in terms of the preparation of the Article 17/2

10 statement to the Secretary of State, yes.

11 Q. Those were, therefore, alternatives, were they? She

12 proposed issuing a qualified statement and the

13 alternative course to that, which was in fact agreed at

14 the end of discussion, was a report to the Secretary of

15 State?

16 A. My recollection is that this emerged from my own efforts

17 to manage what were fairly conflicting perspectives on

18 the way forward.

19 Q. And that, in the very short and somewhat opaque language

20 of minutes, shows, does it, that there was a vigorous

21 debate about what she was proposing to do at this

22 meeting?

23 A. It had -- it was more circular than vigorous, and the

24 prompt -- and this may well -- my recollection is not

25 that sharp. My sense is this might have been prompted





1 by one of the officials present, and I think -- and this

2 is me attributing a perception to others and perhaps it

3 is not that fair, but nonetheless -- it appears to me

4 then -- it appeared to me then and it appears to me now

5 that Geralyn McNally was adamant that she was going to

6 do this -- or refuse to do this.

7 The note to the Secretary of State, my recollection

8 is it emerged that some sort of amelioration of this,

9 offering an alternative course of action, and that was

10 sufficient at the time to move us along. I wasn't

11 convinced then, and events have proved me right -- I was

12 not convinced that that was sufficient amelioration to

13 encourage Geralyn McNally to desist it from withholding

14 the confirmation of the satisfaction.

15 Q. Just taking that as my cue and looking forward now to

16 the whole of the rest of the saga, which in fact took

17 about another year at least to work it its way through,

18 did it in essence come to this: that Geralyn McNally

19 wished to record, in this example by way of

20 qualification, her criticisms of the way that the

21 investigation had been conducted and that over the next

22 year, various other suggested ways forward, routes,

23 including this report but also the Mulvihill

24 reinvestigation and the form of statement, indeed, as it

25 was eventually produced in March 1999, all had the same





1 intent, namely to see if there was another way forward

2 other than recording her dissatisfaction?

3 A. I think that must have played a part in the decisions

4 being made. But also there was a genuine effort and

5 a genuine concern that the case had not been

6 sufficiently -- had not been investigated with

7 sufficient rigour or diligence, and that the Mulvihill

8 review -- the Mulvihill investigation was an appropriate

9 way to proceed, whatever the circumstances.

10 But I would add that from this point on,

11 Geralyn McNally was adamant that, regardless of the

12 satisfactory nature of the Mulvihill Inquiry, the

13 concerns which preceded it would go on record. And

14 again -- and you will maybe ask me about this later, but

15 I would say at this stage I consistently, as did my

16 chief executive, alerted our colleagues in the NIO and

17 the RUC that this was going to happen whatever the case

18 might be in terms of the Mulvihill investigation.

19 Q. Thank you. Now, in terms of the draft report you see

20 there, the Article 17/2 report, can I just ask you to

21 look at a document at RNI-223-025 (displayed). We had

22 this on the screen briefly before because we found the

23 text to Article 17/2 there. Because it is a screen, I

24 am afraid you can't see conveniently all at the same

25 time.





1 But it is a three-page document. It ends at

2 RNI-223-027, if we can just flash that on the screen,

3 please (displayed), and there is your signature.

4 Going back to RNI-223-025 (displayed), is this

5 a draft of the report to the Secretary of State?

6 A. My memory is that this is a draft of the report to the

7 Secretary of State.

8 Q. Can you remember who prepared the draft?

9 A. I would have prepared it.

10 Q. Did anybody else have input into the draft?

11 A. I would say my chief executive. I would have consulted

12 with him and I would have shared this text with other

13 colleagues in -- all other colleagues in the Commission.

14 Q. Including Geralyn McNally?

15 A. Including Geralyn McNally, yes.

16 Q. Can I just ask you one question about it for the moment.

17 The fourth paragraph:

18 "The matters in question are grave. Alleged death

19 threats and sinister innuendos have been made towards

20 Rosemary Nelson, a solicitor. It is claimed that these

21 were communicated to Mr Duffy while under arrest as

22 a suspect in the murder of the two police officers in

23 Lurgan ... and to other persons while they were in

24 police custody."

25 Can I take it then that your understanding of the





1 Duffy complaint was that death threats to

2 Rosemary Nelson had been made to him while in custody?

3 A. That would have been my understanding at the time, and

4 I anticipate that, given the review by others of this,

5 it was neither challenged nor contradicted at the time.

6 Q. As a matter of fact, it is incorrect.

7 A. Now, having worked my way through several hundred pages

8 of text, I can agree with that.

9 Q. There is obviously a danger -- and clearly this is

10 a general point -- but it is the danger of intervening

11 in a case where you haven't been dealing with it

12 day-to-day and hands-on, that you, as the principal

13 draftsman, may not have a complete or full grasp of all

14 the basic facts?

15 A. That is correct, and that is why I sought the support of

16 officials and Commission members, and particularly

17 Geralyn McNally, to make sure that -- it is very

18 important, as I am sure you know, that a document like

19 this -- even a small inaccuracy can undermine the thrust

20 of the arguments entirely.

21 Q. Indeed. Now, so far as the contacts you had with Irish

22 Government officials is concerned, can we now look at

23 a note a month later on 17 June? It is at RNI-202-162

24 (displayed). Do you see that?

25 A. Hm-mm.





1 Q. Bearing in mind our chronology of meeting minutes, and

2 to remind you, the meeting in June, your meeting, ICPC

3 meeting, was on the 19th. So this appears to be

4 a meeting on the 17th, some two days earlier, informal

5 confidential conversation at their request. So it is

6 called for by you again, with you and your chief

7 executive and the purpose was to give them an update.

8 Now, I do not want to go over the same general

9 points we discussed before, but if you look at

10 paragraph 4, it seems that at that stage you were

11 telling the Irish officials that despite the idea of

12 preparing a report, it was still the intention to

13 prepare and sign a certificate of dissatisfaction?

14 A. Hm-mm.

15 Q. It looks, therefore, as though what you were saying is

16 that in effect these two things were going in parallel;

17 in other words, not just the report that you have

18 drafted, but also continuing with Geralyn McNally's

19 determination to sign the certificate of

20 dissatisfaction?

21 A. That's right.

22 Q. So it may well be that by this stage at any rate they

23 were no longer alternatives; both things were being

24 contemplated at the same time?

25 A. Yes. And in effect, Geralyn McNally's sort of much





1 firmer intention -- it was clear she was going to do it,

2 absolutely -- to some degree negated the necessity or

3 the positive impact of the statement to the Secretary of

4 State.

5 Q. Thank you. So far as the paragraph is concerned, you

6 can see that it indicates that you were intending to

7 issue the certificate, or notice of it, to Mr Duffy and

8 to Rosemary Nelson and British Irish Rights Watch,

9 I assume that must be, at the end of June. Do you see

10 that?

11 A. Yes.

12 Q. So that, again, must have been something that was

13 discussed and contemplated at this stage?

14 A. Hm-mm.

15 Q. And then, turning over the page, you talk about the

16 report as a separate matter to the Secretary of State,

17 and you tell them that the draft is going to be

18 considered at meetings, it says "tomorrow". And then

19 you say:

20 "We expect to get a read-out on the actual report

21 shortly before its submission to the Secretary of

22 State."

23 So you indicated, did you, that you would give them

24 a briefing on what was going to be in this report before

25 you submitted it to the Secretary of State for Northern





1 Ireland?

2 A. No, that is not what I said. That is not what I would

3 have done.

4 Q. What would you have done?

5 A. I would have -- they were certainly put on notice that

6 this was going to -- there was a possibility that this

7 report would go to the Secretary of State, and that

8 would have been all that I would have told them. I

9 would not have disclosed the content of it to them.

10 The briefing is as is. It would indicate concerns,

11 but it would have been no further than that, nor would

12 it in any way have been copied to them, and it would not

13 have been part of the public discussion within the

14 Commission meeting. So they would not have been given

15 a read-out or access to the actual report, either before

16 or after the submission to the Secretary of State.

17 Q. So that is another inaccuracy in this note, is it?

18 A. Yes.

19 Q. Now, so far as the next paragraph is concerned -- that

20 is paragraph 6, please -- you tell them about the

21 concerns of some of the Commission members. And, again,

22 I don't want to go over that again, but you deal, six

23 lines down, with the impact of notification to the

24 complainants because it looks as though that was

25 recognised as putting the matter into the public domain.





1 Presumably that was something you we well aware of?

2 A. Yes.

3 Q. Given the sensitivity of all of these issues, you must

4 also have been aware that that was in itself a serious

5 step?

6 A. Yes. It was unavoidable in the sense that every

7 complainant is given a copy of the supervising member's

8 report, and it is a matter for them what they then do

9 with it, but it was evident that -- I don't know what

10 Rosemary Nelson's intentions would have been, but it was

11 being very clear that Colin Duffy would have put it into

12 the public domain as soon as possible.

13 Q. Why do you say that?

14 A. I think because there was clearly political mileage to

15 be made in it in respect of the challenges to the police

16 service and their conduct of complaints investigations.

17 So I just -- it was very predictable that one way or

18 another it would come into the public domain, and the

19 great probability would be that it would have been

20 Colin Duffy that would have brought it into the public

21 domain.

22 Q. You were, therefore, aware presumably that those who had

23 to deal with what you described as the fallout, this

24 fact, that the matter was going to get into the public

25 domain, inevitably was something that they would have





1 wanted to be warned of and made aware of?

2 A. Yes.

3 Q. And at this stage, therefore, are you saying,

4 in June 1998, that your signals had gone out to that

5 effect?

6 A. Absolutely, yes.

7 Q. So that nobody amongst the interested communities,

8 i.e. the Complaints and Discipline Department and the

9 relevant officials at the NIO, could have claimed to

10 have been surprised to discover your intention to

11 effectively make public what was going on?

12 A. It wasn't my personal intention, but certainly the

13 supervising member's intention.

14 Q. But it was a foreseeable consequence?

15 A. It was a foreseeable consequence.

16 Q. And you are saying, are you, that signals to that effect

17 went out to those relevant organisations?

18 A. Yes.

19 Q. Can I ask you finally on this memorandum to look at

20 paragraph 7? This is June 1998, and as far as we can

21 see from the files, this is the first written note of

22 pressure being brought to bear on the supervising

23 member, Geralyn McNally.

24 A. Hm-mm.

25 Q. Now, the information that you set out there, is that





1 information that you learned from her?

2 A. Yes.

3 Q. And as far as you can recall, was this the first moment

4 in the long history of these cases when you were made

5 aware of pressure and of incidents of that kind?

6 A. No, there had been a continuous trickle of them. This

7 paragraph 7 was a summarising comment to the Irish side.

8 But, no, there had been a trickle of incidents and

9 events that -- throughout most of the conduct of the

10 case.

11 Q. And did that pressure and these sorts of incidents

12 increase in number and intensity over the months ahead

13 from June 1998?

14 A. My recollection is that they -- that they continued, and

15 certainly came to a head soon after the issuing of the

16 final case report.

17 Q. In March 1999?

18 A. March 1999, yes.

19 Q. Now, in fact, returning to the minutes of your

20 organisation, two days later, we can see that the

21 decision was taken at your meeting on 22 June not to

22 proceed by way of a report. That is at RNI-222-015.500

23 at the bottom of the page (displayed).

24 So you had the draft at the meeting, as you told the

25 Irish officials you would, but the decision was made not





1 to forward it as a report, but that there would be

2 a research task undertaken. Was that another attempt to

3 defuse dissent and conflict within the Commission?

4 A. Yes, that was certainly how I saw it. And the decision

5 not to proceed with the report to the Secretary of

6 State -- was abandoned -- I have got no accurate

7 recollection of how the debate went around the table,

8 but clearly the decision was made not to proceed

9 with it.

10 Q. Could that decision fairly be seen as arising out of

11 a failure of a majority of the members to support

12 Geralyn McNally in what was going on?

13 A. I am uncertain. My recall is that it was more pragmatic

14 than that, that we had got to the point where there

15 would be little to be achieved by issuing such a report

16 to the Secretary of State and, in fact, politically it

17 might have been the undermining of the Secretary of

18 State's own position to have been in receipt of

19 something as formally expressed in a statutory

20 instrument.

21 Q. And that was a factor that bore upon your thinking,

22 was it?

23 A. Yes, it was, yes.

24 Q. Can we just turn the page to RNI-222-015.501

25 (displayed), please, because we can see at the top of





1 that page that the qualified statement plan, if I can

2 put it that way, was still on the table, as you told the

3 Irish officials. And you say there:

4 "It was confirmed that as this was intended to be

5 issued within the next few days, the relevant

6 authorities should be alerted."

7 What or who were the relevant authorities?

8 A. The relevant authorities were the police and the

9 Northern Ireland Office, including ministers.

10 Q. And how were they alerted?

11 A. Well, don't forget that previously they had already been

12 alerted less formally, and this was the Commission as

13 a body corporate deciding to do that. They would have

14 been alerted in two ways: one by -- again, through the

15 informal channels and also by letter.

16 Q. We know that on this same day, 19 June, you wrote both

17 to the Secretary of State and the Chief Constable?

18 A. That's right.

19 Q. But were there other ways of bringing the matter to

20 their departments’ or their organisations' attention

21 employed in addition to sending those formal letters?

22 A. Yes, there were. As I have said previously, in the

23 lead-up to this there were communications with both

24 organisations and they were -- I would anticipate --

25 I have no got detailed recollection of it, but I would





1 have anticipated that this correspondence would have

2 been preceded by informal communication from officials

3 to counterparts in the two organisations.

4 Q. Are you able to give any specific detail in relation to

5 those communications?

6 A. No, I'm not.

7 Q. Can we look, therefore, at the letters themselves? I'm

8 taking the one to the Chief Constable, which is at

9 RNI-101-276 (displayed). They were, I think, in every

10 respect, identical?

11 A. They were.

12 Q. Thank you. And you set out the matters in issue, and

13 looking first at the second paragraph, we have the same

14 point, don't we, about the threats being communicated to

15 Mr Duffy?

16 So presumably your recognition, with hindsight, of

17 its inaccuracy applies here as well?

18 A. Yes, I was working to the brief that I had been given --

19 yes, it is inaccurate, yes.

20 Q. This is a formal letter and it goes to the head of the

21 two related organisations, the RUC and the Secretary of

22 State for Northern Ireland. So presumably, getting back

23 to the point you made earlier, it was unfortunate that

24 you began with an inaccuracy about the very nature of

25 the complaints in issue?





1 A. Undoubtedly, yes.

2 Q. From what you have told us, does it follow that neither

3 organisation should have been surprised by the contents

4 of the letters you sent dated 19th June?

5 A. Absolutely. I am aware that the Chief Constable

6 expressed surprise, but as far as we were concerned, his

7 organisation had been kept informed as the case

8 progressed.

9 Q. Well, the fact is that the Chief Constable reacted very

10 powerfully indeed to being given this information in

11 this way, didn't he?

12 A. Yes.

13 Q. We can look at his text at RNI-226-034 (displayed). And

14 amongst the many points he made both in this letter and

15 at the subsequent meeting, which you deal with in your

16 statement on 1 July, was that he wasn't aware of any of

17 these matters before receiving your letter on 19 June?

18 A. Yes, and his surprise came as a surprise to me.

19 Q. Why was that?

20 A. Because my belief and understanding was that his

21 organisation had been kept aware of the deteriorating

22 situation as it emerged, and also I think part of the

23 communication that was being sent to both the NIO and

24 RUC was almost by way of pleading, that we were saying,

25 "Look, this is going to go off the rails, neither the





1 Chief Executive nor I have powers to prevent it" and

2 there was a tone of saying -- and actually -- in the

3 subtext of my communication, there is a tone which says,

4 "Look, help us here." But I was surprised that the

5 Chief Constable had not been informed by his ACC long

6 before.

7 Q. Certainly based on what you have told us, you had no

8 reason to think that your staff had communicated with

9 the Chief Constable or his staff?

10 A. Insofar as they communicated with the

11 Assistant Chief Constable -- and our expectation is that

12 he would use that information within his organisation

13 appropriately or would have shared it -- we had no

14 reason to believe that this would have come as

15 a surprise to the Chief Constable.

16 Q. But his reaction was a powerful reaction?

17 A. And he was genuinely surprised, there is no doubt about

18 that.

19 Q. So whatever attempts you had made to signal had not

20 succeeded in getting the information to him. You

21 realised that?

22 A. Absolutely. Now and at the time, yes.

23 Q. But you can see in the third paragraph that he makes

24 a very specific point to you, namely that even in your

25 letter of 19 June, you had not told him of the intention





1 to issue statements to the complainants, and he only

2 discovered that when he received a visit from a very

3 senior official of the NIO, and that was another

4 substantial complaint on his part, wasn't it?

5 A. Well, the issuing of the -- the decision by

6 Geralyn McNally to withhold the certificate of

7 satisfaction had its set of inevitable consequences, of

8 which the Chief Constable and his senior colleagues

9 would have been well aware. So we could not have

10 prevented that -- and I could not have prevented that.

11 Q. Don't you think that there should have been a warning to

12 him in your letter of what you were intending to do by

13 way of publication?

14 A. No, I don't -- and I'll explain why -- because the

15 system itself, in terms of statute and regulation, would

16 have brought about these inevitable consequences. And

17 the Chief Constable himself at one point had been

18 Assistant Chief Constable for Complaints and Discipline.

19 He would have been well acquainted with the orthodoxy of

20 the process.

21 Q. In your letter, going back to that at RNI-101-276

22 (displayed), you describe the investigation as having

23 been "irreparably undermined". That is the last page,

24 RNI-101-278 (displayed). Did you, when you wrote that

25 letter, see any way forward other than the issuing of





1 the qualified certificate?

2 A. Yes, what I was hoping for -- in a sense, what I was

3 hoping for throughout would have been some sort of

4 reaction which would have rescued the situation. How

5 the Chief Constable responded to it in terms of the

6 technicality was that the file had not yet -- although

7 the file had informally being handed to the

8 Commissioner, it had not formally being handed over and

9 this created a potential breathing space of which myself

10 and my Chief Executive were aware of.

11 It was not our prerogative to make the suggestion,

12 but clearly, once the full set of circumstances had been

13 shared, it was an initiative which the Chief Constable

14 raised and which we were keen to go along with.

15 Q. So you actually welcomed his proposal, did you --

16 A. I certainly --

17 Q. -- as to how to take it forward?

18 A. Yes, absolutely. We were in a hole and really the job

19 was to stop digging.

20 Q. Can I take it that Geralyn McNally did not, at least

21 initially, welcome the proposal?

22 A. She asked for time to reflect on it, and I think myself

23 and my senior colleagues attempted successfully to

24 persuade her that it was a positive way forward.

25 Q. Now, can we look at the meeting at which all this was





1 discussed, referred to in the Chief Constable's letter?

2 It took place on 1 July. You deal with it in your

3 statement, for your reference, in paragraph 21,

4 page RNI-804-065 (displayed).

5 You were present. As I understand it, the Chief

6 Executive, the Deputy Chairman, the acting ACC for the

7 relevant branch and also Geralyn McNally, as well as

8 Sir Ronnie himself -- is that right?

9 A. My memory is that we had a -- that Geralyn McNally

10 joined us towards -- at a later point in the meeting,

11 but initially we -- she wasn't with us initially.

12 Q. Are you sure about that?

13 A. I am reasonably certain.

14 Q. So that, as it were, the business of the meeting had, at

15 least, begun before she was invited to join you. Is

16 that what you are saying?

17 A. That's my memory. That's my memory of it.

18 Q. You, I assume, have no note of the meeting? Made at the

19 time, I mean?

20 A. No, there was no -- there was no minutes made. The

21 document of record would have been the correspondence, I

22 think, which came from the Chief Constable outlining

23 what we had agreed, and that came after Geralyn McNally

24 had signalled her acceptance of it, which I think was

25 one or two days after our meeting.





1 When we met, she did not immediately rise to the

2 proposal.

3 Q. This is Geralyn McNally?

4 A. Yes.

5 Q. So I have got this clear, because this is an account of

6 the meeting that we haven't so far heard, is it right

7 then that when she was invited into the meeting, the

8 others in the meeting had already discussed and settled

9 on a proposal which they then intended to put to her?

10 A. That's my recollection, that's my memory of it.

11 Q. So she was in effect then presented with a potential way

12 forward and it was no doubt made clear to her that it

13 was hoped by all concerned that she would agree with it?

14 A. That's my memory of the tone, yes.

15 Q. Were you putting pressure on her to agree with it?

16 A. Persuasion would be a more appropriate term, yes.

17 But --

18 Q. And you were comfortable with that, were you, in your

19 role of chairman of the organisation of which she was

20 a member?

21 A. Comfortable with my action or comfortable?

22 Q. Yes.

23 A. I think I had a responsibility to take the wider

24 contextual interest into account, and in exercising that

25 responsibility, I believe that it was not just in the





1 public interest, but also in the interests of the

2 complainants that what was perceived -- and a perception

3 I shared -- what was a particularly shoddy piece of

4 professional work should be redressed by a particularly

5 rigorous continuation of it.

6 So from the point of view of both the complainants

7 and the wider context, I felt it was legitimate for me

8 to offer what I saw as persuasive arguments.

9 Q. So far as the Chief Constable was concerned at this

10 meeting, whether or not Geralyn McNally was present at

11 this point, is it right that his position was that he

12 had had no prior notice of the matters raised in the

13 letter and that he believed very strongly that those

14 matters should have been brought to his attention

15 earlier?

16 A. That's absolutely the case.

17 Q. What was your response?

18 A. My response -- and, again, my officials were with me at

19 the time -- was that this information had been passed

20 continuously and clearly to his officials and that the

21 deficiencies possibly lay within his own organisation

22 rather than within ours.

23 Q. In other words it was a problem of internal

24 communication at the RUC?

25 A. That is a view, yes.





1 Q. Did you feel at that point or at any time subsequently

2 that some of the later problems might have been avoided

3 had effective and disclosure been made to the

4 Chief Constable?

5 A. That's clearly the case. The problem was that -- and

6 I come back again to this point -- these Commission

7 members were sole practitioners, none of whom had borne

8 anybody looking over their shoulder for the most part,

9 and that would have had to have been triggered by the

10 supervising member. And at each -- and I would have

11 been happy to make the representation on that member's

12 behalf had that been seen as the most appropriate -- but

13 this was a continuous process of trying to manage a

14 case, trying to manage it, trying to manage it and

15 ultimately failing one way or another for it to be

16 managed.

17 Q. Can I ask you a couple of other questions about the

18 Chief Constable's position at this meeting?

19 Was it his position, as you recall it, that had he

20 been earlier notified, he would have acted in an attempt

21 to sort out the problem before it had got to this rather

22 desperate stage?

23 A. Yes, he was clearly well intentioned in the

24 circumstances, yes.

25 Q. So I'm clear about this, you made the point to him in





1 the meeting, did you, that you had been signalling in

2 the way that you described to us, to the Head of the

3 Complaints and Discipline branch?

4 A. Hm-mm.

5 Q. So far as his attitude to the matter was concerned, did

6 he make clear in the meeting, whether, as I say,

7 Geralyn McNally was present or not, that he took

8 a serious view of the issues raised, i.e. the issues that

9 she was raising?

10 A. Yes, he did.

11 Q. And did you, during the meeting, go through some of the

12 points which in the end formed part of the appendix, the

13 appendix to the statement of satisfaction?

14 A. Hm-mm.

15 Q. In other words, the detail of the criticism that Geralyn

16 was making about the way in which the investigation had

17 been conducted?

18 A. I'm not certain to the degree of absolute detail, but

19 yes, the -- in summary, he knew what those concerns were

20 grounded in, yes.

21 Q. If we look at her note of the meeting at RNI-202-173.500

22 (displayed), we can see at the top of the next page,

23 RNI-101-173.501 (displayed), her recording herself

24 citing examples of drink, delay, evasiveness, hostility

25 and a general observation of lack of interest, that





1 their time was being wasted.

2 So it looks as though, certainly by her, there was

3 at least a summary of the points that were in issue?

4 A. Yes.

5 Q. It was left at the end of the meeting then, was it, that

6 Geralyn McNally would have to make a decision as to

7 whether to accept the proposal to bring in an outside

8 officer to conduct a reinvestigation -- I'm using,

9 perhaps, that term loosely -- and that is the Mulvihill

10 investigation, as it became.

11 Now, what I would like to do now is to jump forward

12 with you, please, until we reach the stage at the end of

13 that process. The Mulvihill reports were being put

14 together, weren't they, I think, in the early part of

15 1999, the subsequent year?

16 A. Hm-mm.

17 Q. And if we move on until March, the next major stage in

18 the process comes in the immediate aftermath of

19 Rosemary Nelson's murder, namely the issue of the

20 certificate of satisfaction and its appendix. That's

21 what I would like to ask you about now.

22 A. Right.

23 Q. We can see them at RNI-223-324, I hope (displayed).

24 Yes. And we had the appendix at RNI-223-329 on the

25 screen a little earlier.





1 Can I ask you, please, who was responsible for

2 drafting these documents?

3 A. The statement?

4 Q. Yes.

5 A. It would have been the member.

6 Q. Geralyn McNally?

7 A. Geralyn McNally, yes.

8 Q. She it is who signs the statement?

9 A. Yes.

10 Q. So she drafted it, did she, and also the appendix?

11 A. Yes.

12 Q. Did you have any input in the drafting?

13 A. None whatsoever.

14 Q. None at all?

15 A. No.

16 Q. Did any official within the ICPC have any input into the

17 drafting that you are aware of?

18 A. I would say that she would have been assisted by

19 Jennifer Mitchell.

20 Q. Thank you. At any stage during these events, did you

21 obtain information about the substance of the original

22 P146 investigation from anyone at the ICPC other than

23 Geralyn McNally and her officials?

24 A. Not that I can remember, no.

25 Q. And can I assume that you didn't obtain any information





1 about it from anyone outside the organisation?

2 A. Not that I recall -- well, I was going to say not that

3 I recall. No, absolutely not.

4 Q. Can I take it from your earlier answer that by this

5 stage in March 1999, the feeling of pressure on

6 Geralyn McNally had increased?

7 A. Undoubtedly, yes.

8 Q. Was there a time when you felt yourself under criticism

9 internally, in the organisation, for failing to provide

10 her with sufficient support and guidance?

11 A. I don't -- because the members of the organisation, as

12 I have said earlier, had operated as independent

13 practitioners, so just as they would not have accepted

14 any intrusion on my part into their work, they

15 reasonably would not have expected me to intrude into

16 the work of one of their colleagues.

17 Q. Now, you deal with this in paragraph 20 of your

18 statement at RNI-804-065 (displayed), and you say there

19 in the second paragraph:

20 "Some members implied that the problem was with her,

21 that she had not handled the case well and that the

22 Chief Executive and I had not provided her with adequate

23 supervision even though there was no mechanism in the

24 statute for us to do that."

25 So that was a point being at least implied or





1 perhaps suggested at the time, was it?

2 A. Yes, it was -- there was an undertone of it, rather than

3 an explicit challenge, yes.

4 Q. Now, before the issue of the certificate of satisfaction

5 and its appendix, do you recall a second meeting in

6 relation to these matters with Sir Ronnie Flanagan?

7 A. I am aware we had meetings. If it is on the record,

8 yes, I did. I think we met at Brooklyn shortly before

9 its issue, but I'm not certain.

10 Q. In her evidence to the Inquiry, Geralyn McNally has said

11 that she recalls a second meeting, in other words

12 a meeting after the meeting at the beginning

13 of July 1998, which she believes took place at some

14 time, although she can't say precisely when, before the

15 murder of Rosemary Nelson and that you and she and the

16 Chief Constable were present at the meeting.

17 Do you recall having a meeting of that kind before

18 the murder of Rosemary Nelson?

19 A. I would be less than honest to say that I have

20 a detailed recollection of that meeting. We did have

21 meetings -- I would need a minute to -- I would need

22 a minute of the meeting to get some sort of prompt

23 for it.

24 Q. I am afraid I can't provide you with a minute of this

25 meeting or a note of it. I'm putting to you her





1 recollection.

2 At this meeting, her recollection is that -- as you

3 would perhaps say "again" -- she arrived to discover

4 that you and the Chief Constable had already been

5 discussing the question of whether she would insist upon

6 recording her dissatisfaction in relation to the

7 original investigation by P146, and that the purpose of

8 the meeting, as she perceived it when she arrived, was

9 for the two of you to persuade her not to persist and,

10 in other words, not to set out in the way that she

11 eventually did in the appendix her criticisms of the

12 original investigation.

13 Do you remember a meeting of that kind?

14 A. I would not have set myself the task of trying to

15 dissuade her at this very end stage to -- to not do what

16 she thought would be the right thing.

17 I think that meeting would have been, as a sort of

18 wash-up, that the investigation was seen to be

19 unsatisfactory. Commander Mulvihill came in, did what

20 was in fact a superb job of a detailed investigation.

21 It might have been -- I don't know what the intention of

22 the Chief Constable would have been, but it would not

23 have been my intention at this stage -- I mean, partly

24 because I -- I knew that there would be no opportunity

25 whatsoever to persuade Geralyn McNally to behave other





1 than she was already doing.

2 Q. Well, you have indicated earlier in relation to the July

3 meeting, when you say the meeting began and she was

4 invited to join it later, that those present sought to

5 persuade her in that case to accept the Mulvihill route?

6 A. Yes.

7 Q. What I'm suggesting, on the basis of what

8 Geralyn McNally has said in evidence to the Inquiry, is

9 that there was a similar attempt to persuade in this

10 case.

11 You had had the Mulvihill Report, it had provided,

12 as it were, the amelioration, the way out, and you now

13 sought, with the Chief Constable, she says, to persuade

14 her not to put on record her criticisms of the earlier

15 investigation?

16 A. In no circumstances would that have been my intention

17 with any sort of meeting, either with her or with her

18 and the Chief Constable.

19 My clear recollection is that even back in the July,

20 myself and my senior colleagues were making it clear

21 that we were absolutely convinced that regardless of how

22 successful the Mulvihill investigation was going to be,

23 Geralyn McNally was adamant that the earlier criticisms

24 would be included in any report that she would prepare

25 or any certificate that she would sign.





1 Q. So you don't think it is possible that you would have

2 been engaged in such an attempt to persuade her?

3 A. No. I mean, for two reasons: one being I don't think I

4 would have been successful, and the other being that she

5 had a perfect right to express the reservations that she

6 had, and the rest of us had a responsibility to deal

7 with the consequences of that.

8 Q. Were you ever aware of any such attempt being made to

9 persuade her by anyone else?

10 A. Not that was ever reported either directly or indirectly

11 to me, no.

12 Q. Geralyn McNally also recalls that at that meeting, the

13 Chief Constable said that Rosemary Nelson was having an

14 affair with Colin Duffy. Can I take it from your early

15 answers that you don't recall that either?

16 A. I don't recall that. Had that been said, I would have

17 seen it as actionable on my part. I just don't think --

18 that would have gone well beyond the bounds of

19 acceptability.

20 Q. You think that you would have reacted --

21 A. Absolutely.

22 Q. You think that you would have remembered it --

23 A. With crystal clarity. The only comment I remember

24 Ronnie Flanagan making about Rosemary Nelson was

25 immediately after her death, where he described her as





1 an officer of the court in good standing.

2 Q. You say that in your statement?

3 A. Yes, I think I do.

4 Q. So you don't recall this being said at any meeting you

5 attended with the Chief Constable?

6 A. Regardless of my lack of recollection of dates or

7 events, I can state categorically that had somebody of

8 his standing said something like that, I would have

9 responded with all vigour.

10 Q. Just returning to the appendix at RNI-223-329

11 (displayed), can I ask you this question: What was the

12 point in publishing the concerns set out in the appendix

13 once the Mulvihill investigation had been completed?

14 A. In terms of what I considered to be Geralyn McNally's

15 motivation in doing so?

16 Q. Well, you presumably knew that she was going to do this.

17 You say it was drafted by her, but you were obviously

18 aware that it was about to emerge. Did you understand

19 what she was trying to achieve in publishing the

20 appendix?

21 A. Her defence of doing that was that -- in the name of

22 both transparency and the public interest.

23 Q. Did it fall within the statutory rules or remit of the

24 organisation to produce the certificate of satisfaction

25 on the one hand, but, as it were, of dissatisfaction on





1 the other?

2 A. Well, this was a unique situation and there was nothing

3 in regulation or guidance which would have advised us

4 on --

5 Q. It had never happened before?

6 A. It had never happened before, but having said that, the

7 reports which are attached to this, the standard

8 certification, actually do give a reasonably detailed

9 account of the investigative process and the

10 conclusions.

11 So having a reasonably substantial document as part

12 of the certification process is -- was regular practice.

13 Q. Now, in the time before the appendix was issued -- it is

14 dated 22 March, this document -- did you consider

15 whether you ought to warn the investigating officer of

16 what was about to be published?

17 A. The Assistant Chief Constable and, I anticipate, the

18 Chief Constable would have had sight of this in advance.

19 I had no relationship with the investigating officer.

20 Q. Was a suggestion made that he should be shown a draft

21 for his comment or, indeed, afforded some form of reply?

22 A. That would not have been at any time part of the

23 protocol. We are talking about a relationship of

24 authority between the supervising member and the

25 investigating officer, and the -- there would not have





1 been a question of that being open to challenge, nor

2 were there any channels for it.

3 I would say that the Commission -- there was

4 effectively no oversight of the Commission, including --

5 it was one of the organisations which was excluded from

6 the terms of reference of the Ombudsman. So even if

7 terms of maladministration, perhaps very unfortunately,

8 there was no mechanism for redress, nor for challenge or

9 comment.

10 Q. So, so far as giving warning or notice to the relevant

11 officers concerned, that was a matter you believed which

12 was properly for the RUC, for his line managers, rather

13 than for your organisation?

14 A. Yes.

15 Q. Thank you. Can I just move the story on to your next

16 meeting with the Irish officials, the next one I want to

17 look at at any rate. This is at RNI-238-030 (displayed)

18 and it is dated 24 March. And it says that there is

19 a meeting with you, paragraph 2, the previous evening.

20 So presumably the 23rd. So about a week after the

21 murder of Rosemary Nelson and a week before the

22 certificate and appendix is finalised.

23 It summarises what you are said to have told them,

24 and you give a summary there of the overall attitude of

25 the police involved:





1 "They regarded Rosemary Nelson as no better than

2 those she was defending."

3 What was the basis for that summary, please?

4 A. The basis for that summary could be seen in the file and

5 in comments made both on file and comments made by

6 officers under investigation, not just to the RUC

7 investigation but also on the Mulvihill Inquiry, where

8 there were a number of gratuitous assertions made about

9 the moral character of Rosemary Nelson.

10 Q. So far as that is concerned, the reference you have just

11 made to the moral character, are you there referring to

12 the comments in the investigating officer's report in

13 relation to her reliability?

14 A. There were comments about her reliability, there were

15 comments in terms of allegations about comments that

16 were made about her, but on the hard fact of the file --

17 the file -- the investigation file, there are paragraphs

18 there which make it clear that the investigating

19 officer's belief was that these complaints, including

20 Rosemary Nelson's part in them, were a part of an

21 internationally orchestrated effort to undermine and to

22 discredit the RUC.

23 Q. So that was your view based on reading that report, for

24 example?

25 A. Yes.





1 Q. And his use of the words "propaganda campaign"?

2 A. Precisely.

3 Q. Yes. Can I ask you to look over the page because,

4 beginning in paragraph 3, it says that there were

5 various points to be treated in complete confidence, and

6 here is one of them, and the Chief Constable's reaction:

7 "At a private meeting with the Chief Constable to

8 hand over the ICPC statutory statement ..."

9 Presumably that is the statement we have been

10 looking at with the appendix?

11 A. Hm-mm.

12 Q. "... Donnelly got the clear impression that he ..."

13 Presumably the Chief Constable:

14 "... intended to defend the force to the absolute in

15 the aftermath of the investigation."

16 Then this sentence:

17 "There were some sarcastic remarks made about the

18 supervising member, Geralyn McNally, who is a practising

19 barrister."

20 What was the nature of the remarks, please?

21 A. My recollection is that the nature of the remarks, which

22 I -- my concern was that they detracted very much from

23 the essence of the issues and that was that the main

24 problem was one of a personality clash between

25 Geralyn McNally and the investigating officer, rather





1 than a concern about the substance of what was going on.

2 I remember -- again, some things I remember more

3 clearly than others. I remember the Chief Constable

4 summarising the situation in the words that, "What we

5 should have done is send a Greek and a Roman to do this

6 job. Instead we sent two Romans."

7 So he was acknowledging his perception that the two

8 characters involved, in fact, were perhaps too similarly

9 temperamentally the same, that the fundamentals of the

10 case, as he was presenting it, in my view trivialised

11 the issue. And I think there were echoes of that in the

12 Mulvihill review, which attribute this more to action

13 and reaction and overreaction.

14 Q. So the sarcastic remarks then were to characterise the

15 problem as arising out of a personality clash?

16 A. Yes.

17 Q. And that was it?

18 A. Yes.

19 Q. Had you heard that characterisation from the

20 Chief Constable before?

21 A. No, not until ...

22 Q. And that was the limit of what he said?

23 A. That's the limit of what he said to me, yes.

24 Q. So far as the Mulvihill investigation was concerned, we

25 have in here a transcript of your remarks made on the





1 radio shortly after the murder of Rosemary Nelson. They

2 begin at RNI-228-018 (displayed) and continue, so far as

3 we are concerned, relevantly on RNI-228-020 (displayed),

4 where four paragraphs from the bottom, the interviewer

5 says:

6 "And were you satisfied with the Metropolitan Police

7 investigation of the original allegations?"

8 And you are recorded as replying:

9 "We were satisfied with the Metropolitan Police

10 enquiries, yes."

11 So that was something you were saying publicly,

12 wasn't it, at about the time when all of these events

13 were taking place?

14 A. Yes.

15 Q. Now, at about that same time there was a marked increase

16 in adverse media comment about Geralyn McNally, wasn't

17 there?

18 A. There was, yes.

19 Q. And I would like to take you to some of the detail of

20 that, please, at RNI-804-067, paragraph 27 (displayed).

21 You describe it as "orchestrated, very personal and

22 venomous", and you say that it was a campaign. Now, how

23 were you made aware of it?

24 A. I was made aware of it initially by -- from journalist

25 sources.





1 Q. So what did they tell you?

2 A. They told me that there was a fairly concerted lobbying

3 from -- emanating primarily from within the Police

4 Authority.

5 One journalist recounted -- in fact, it came the

6 morning after some reception he had attended at the

7 Police Authority, where there were criticisms of

8 Geralyn McNally as a person or as a person who was seen

9 as unsuitable for the task that she had been allocated.

10 And this journalist was concerned -- and I remember --

11 first of all, it would be most unusual for a journalist

12 to in any way disclose his sources, but he visited me

13 the morning after this and expressed his concern that

14 some of the comments and how they were being expressed

15 and the gratuitous offensiveness of them ran the danger

16 of repeating previous fears that there was this -- just

17 as there was a sense that Rosemary Nelson was being

18 tarnished with the brush, as it is seen, of those she

19 represented, that the messenger in the form of

20 Geralyn McNally was being victimised for the message

21 that she was bringing.

22 This journalist was seriously concerned for

23 Geralyn McNally's safety.

24 Q. Is that why you say at the end of this paragraph that he

25 felt the article and the way she was being treated was





1 dangerous?

2 A. Yes, and then reflecting back on the Sunday Times

3 article, which I remember we consulted with our public

4 relations advisers on this --

5 Q. This is the Liam Clarke article?

6 A. The Liam Clarke paper. My first impression was this was

7 this was clearly a case that should have been brought to

8 the Press Complaints Commission, but the advice from the

9 PR people was that that would fuel the boiler rather

10 than dampen it.

11 Q. As far as you were concerned, was it your view that this

12 was an orchestrated campaign?

13 A. Because it was coming from several sources, and

14 I remember the newsletter contacting us, obviously

15 having been quite extensively briefed, that -- that

16 there were -- rather than the usual sort of passive

17 giveaway critical comments, this was actively being

18 engaged with, there were people who were actively

19 seeking to undermine the case by undermining the

20 Commission member.

21 Q. Where was the campaign being directed? Did you know?

22 A. Where was it being directed towards?

23 Q. No, who was directing the campaign? Where was the

24 source of the campaign so far as you were aware?

25 A. The indicators that were given to me from journalistic





1 sources and from an interpretation I took from

2 Northern Ireland Office sources was that they were

3 emanating from the Police Authority.

4 Q. And you must have been very concerned about this and

5 about the treatment that was being handed out to one of

6 your members?

7 A. I was concerned about the treatment, I was concerned

8 about the degree to which she was isolated and being

9 further isolated by this sort of criticism. I was

10 concerned that we were unlikely to get the institutional

11 support that one would naturally have expected from the

12 organisation because of colleagues who didn't share her

13 view or who thought her behaviour was unwise or

14 unacceptable.

15 Q. So even at this point there were opposing views within

16 the ICPC; is that right?

17 A. There were differing tones. This thing was, you know,

18 very much in the ether. Nobody would say explicitly

19 that they had these negative opinions or prejudices.

20 There was at times damning with faint praise here and

21 there.

22 Q. Did you conclude during this that you needed to act to

23 try to bring all this to an end?

24 A. I needed to act to try to bring it to an end. Again,

25 through informal channels I made clear both my concern





1 and displeasure.

2 Q. Can I ask you to look at paragraph 30 of your statement

3 at RNI-804-068, where you talk about the channels

4 (displayed)?

5 Can I ask you to tell me, please, what were the

6 channels you describe there as "indirect channels" that

7 you use to make clear your position, which is that if it

8 didn't stop, you were going to "come out of your

9 corner"?

10 A. The indirect channels would have been, again, from my

11 own senior officials, from our public relations

12 consultants to serve notice that if they did continue, I

13 would take a much more assertive and publicly profiled

14 reaction to them.

15 I eventually spoke with Ken Lindsay, the Head of the

16 Police Division at the time. He seemed very unhappy

17 with how things had been going. I'm not sure -- I can't

18 remember exactly his use of words, but his use of words

19 led me to conclude that he was aware of where they were

20 coming from.

21 Q. He was aware of the comments, of the campaign, and aware

22 of its origin?

23 A. Yes.

24 Q. And can I take it from what you say in your statement

25 that he regarded himself as being in a position to do





1 something about it?

2 A. Yes, given his position of head of the division in the

3 NIO. My view was -- and I think it was a view he shared

4 of his own position -- that he would be in a position to

5 influence that.

6 Q. Did he tell you to whom his message, that the negative

7 briefing had to stop, was to go out to?

8 A. My recollection of the conversation was that I indicated

9 to him my belief that they were coming from the Police

10 Authority, and his response did not abuse me of that

11 belief.

12 Q. Did he identify any other potential source of the

13 briefing?

14 A. There was, I think, a sense that there would have been

15 some sources within the RUC who would have briefed.

16 But -- there was less clear evidential trail back to

17 them, but there was a much clearer trail back to the

18 Police Authority.

19 Q. Did you employ any other channels other than Mr Lindsay?

20 A. Within the NIO?

21 Q. Well, within the NIO or anywhere else.

22 A. I have no recollection of my direct communication. We

23 may have referred that back to the Irish as well at some

24 point, but Ken Lindsay, in my perception of it then and

25 now, was that he was a key actor in dampening down.





1 Q. So, as you saw it, the briefing stopped very soon after

2 your conversation with him?

3 A. Almost immediately, yes.

4 Q. And you didn't believe that to be a coincidence?

5 A. I was convinced that it wasn't.

6 Q. Would that be a convenient moment, sir?

7 THE CHAIRMAN: How much longer are you likely to be?

8 MR PHILLIPS: I am afraid about half an hour.

9 THE CHAIRMAN: Right. We will have a break of a quarter of

10 an hour at this stage.

11 (3.20 pm)

12 (Short break)

13 (3.45 pm)

14 THE CHAIRMAN: Yes, Mr Phillips?

15 Submissions by MR PHILLIPS

16 MR PHILLIPS: Sir, so far as the question of the closed

17 hearings is concerned, as you know, we have asked

18 Mr Donnelly to come back tomorrow morning at 9.30, so

19 that enables us to deal with those submissions now.

20 So the position, if I can open it to you, is as

21 follows: that after discussion over some weeks and,

22 indeed, months with those principally concerned, the

23 Inquiry issued its proposals in this regard in a letter

24 of 18 September. Sir, I hope you have a copy of that

25 with you.





1 I'm anxious from the point of view of the transcript

2 to make sure that the thrust of the proposals is

3 recorded. The letter begins:

4 "The Inquiry is committed to holding all of its full

5 hearings insofar as possible in public. To that end,

6 over the course of the last three years, the Inquiry's

7 legal team has engaged in a process of redaction with

8 the providers of witness statements and documents in

9 order to produce declassified material which can be

10 tested publicly by oral examination."

11 So, sir, that's the starting point.

12 The letter continues as follows:

13 "It is presently envisaged that subject to the

14 issues of anonymity and screening, the vast majority of

15 the Inquiry's witnesses will be examined in public at

16 the full hearings. This will include those witnesses

17 whose evidence bears upon Parts 2 and 3 of the Inquiry

18 and whose statements have been redacted prior to

19 distribution."

20 Then the nub of the issue, which is that there are

21 a small number of witnesses whose evidence can't be

22 given entirely in public.

23 Two reasons are put forward. The first that:

24 "The witness may be asked questions about passages

25 in his or her statement which have been redacted on





1 grounds of sensitivity, i.e. to protect national security

2 or to prevent a risk to life.

3 "Secondly, it may be necessary to ask the witness

4 questions about sensitive issues which are not already

5 covered in his or her statement, but which the Panel,

6 through counsel, considers must be examined in order for

7 the Inquiry to discharge its Terms of Reference."

8 So those are the reasons. And so far as the

9 proposal is concerned, it is put as follows:

10 "In such cases, it is the Inquiry's intention to

11 commence with the public examination of the witnesses

12 and then, when matters of sensitivity arise, to complete

13 the questioning in private.

14 "When the latter circumstance arises, the Inquiry

15 intends to exclude the public from attendance and to

16 restrict the presence of non-Inquiry personnel to the

17 following: the witness, the witness's solicitor and/or

18 one counsel, subject to those persons wishing to be

19 present and being appropriately vetted, and finally to

20 one representative of the relevant organisation whose

21 information will be the subject of questioning, plus one

22 counsel subject, again, to the question of appropriate

23 vetting."

24 Then I would stress this, sir. It is only envisaged

25 that closed hearings will be necessary in respect of a





1 small number of witnesses who are or were officers of

2 the RUC/PSNI or Security Service or members of the Army.

3 The Inquiry's detailed proposals in respect of the

4 security arrangements were set out, sir, in a secret

5 annex.

6 Then, as the letter makes clear, the Inquiry invited

7 written submissions, and on the basis of those, sir, you

8 decided that oral submissions should be invited from

9 those who wished to make them, and here we are today.

10 Sir, so far as the submissions in writing are

11 concerned, it appears that there is no dispute, or no

12 material dispute, that closed hearings of some kind are

13 necessary across the board. The key questions I would

14 suggest are as follows: who should attend, who should be

15 present for those hearings; and secondly, whether it

16 will be possible for those Full Participants who, on the

17 basis of the Inquiry's proposal, are to be excluded from

18 the closed hearings, to participate effectively in the

19 Inquiry. So broadly speaking, sir, that is the issue of

20 fairness.

21 So that is all I wanted to say at this stage.

22 THE CHAIRMAN: Thank you.

23 Mr Arthur Harvey?

24 Submissions by MR HARVEY

25 MR HARVEY: Members of the Tribunal, on behalf of Mr Nelson,





1 we did not make any witness submissions. I still think

2 perhaps it would be appropriate just to set out what are

3 the instructions of my client in relation to this

4 approach.

5 Firstly, what I respectfully submit is that the

6 legal landscape is a fairly well trodden one by this

7 stage, but nonetheless there are salutary lessons to be

8 learned just by following down through what the legal

9 landscape is. And the legal landscape started off with

10 these particular areas that the Inquiry intends to hold

11 closed sessions in relation to would have fallen under

12 the old category of Crown immunity. That has been

13 developed into public interest immunity, and undoubtedly

14 the definition of sensitive material set out in the

15 letter of 18 September by the Solicitor to the Tribunal

16 identifies areas for which there would be a public

17 interest immunity.

18 Secondly, that as these matters have developed,

19 particularly since the mid 1990s, there is a specific

20 legal framework for dealing with issues which may be

21 considered to involve a balancing exercise. The

22 balancing exercise, however, will vary depending upon

23 the issues that have to be determined. Where the right

24 to life is engaged by Article 2, there is no balancing

25 exercise. The Tribunal must not endanger by any of its





1 procedures the lives of those who are committed to

2 providing information to it.

3 Therefore, in that particular area, irrespective of

4 whether there is an application to the Tribunal, once

5 the Tribunal is made aware by whatever means of

6 information which, if made public, would endanger the

7 life of others, then the Tribunal has a positive

8 obligation to take steps to prevent such eventualities.

9 In relation to the right to a fair hearing, again

10 those will be influenced and perhaps informed by the

11 case law under the European Convention. But they are

12 not strictly applicable within the terms of this

13 Inquiry.

14 Article 6 of the Convention relates to fair and

15 public hearings in which determinations are to be made,

16 which affect either the civil or criminal liability or

17 responsibility of those who are appearing in courts.

18 This is not an adversarial procedure. The important

19 matter, therefore, is that Article 6, as such, is not

20 engaged, but fairness of procedural matters is

21 a free-standing item which this tribunal has made it

22 clear that it intends to take into account.

23 What I must say is that what has greatly influenced

24 the approach of my client is the averred desire of this

25 tribunal to hold its hearings in public to the full





1 extent that it is considered possible with its public

2 duty. And the testimony to that is the fact that these

3 hearings have been public, they have been full and they

4 have covered a wide range of issues, which may in

5 certain circumstances be regarded as sensitive.

6 But what is the important feature of these matters

7 is that when one looks at the legal landscape, the legal

8 landscape sets out now in statutory form the different

9 approaches that a court must take. And the approach of

10 a court has to be adopted because, of course, this is

11 a tribunal. But it starts off with a graduated

12 approach, and the graduated approach can start with the

13 fact that all parties are notified, not only of

14 applications for public interest immunity, but they are

15 made aware of the grounds upon which the application is

16 being made.

17 There is a second category, where the party is

18 informed that an application -- the parties are informed

19 that applications will be made, but they are not told

20 the nature of the application. And thirdly, there is

21 the category where the application is made ex parte and

22 without notice.

23 Now, what, again, my client draws comfort from is

24 that the Tribunal, in terms of approaching the issues

25 with which it has to deal, has adopted the least





1 draconian of those methods, that the ultimate position

2 with all issues dealing with disclosure is that they

3 must be kept constantly under review. In other words,

4 it is impossible for a court to straitjacket itself by

5 setting out rigid protocols which will be invariably

6 followed.

7 What is important is that the Tribunal attempts to

8 apply the general guidelines and principles that, in

9 determining issues involving the desirability of full,

10 open public hearings, that should not compromise the

11 lives of those who are providing information to it and

12 should not compromise the effective work of the security

13 services in terms of their ability to protect the

14 general public, which also involves lives.

15 So what I respectfully submit is that when one looks

16 at the letter, looks at the discussions that have taken

17 place, it is apparent that the Tribunal is applying the

18 general principles, namely it is trying to develop an

19 approach to these matters. And again, its unique

20 position is different from that of a court. Normally,

21 what would happen in a court is that you would have

22 a disclosure judge. The disclosure judge would make

23 a determination whether or not information ought to be

24 available to the eventual decision maker, because in

25 doing so they must take into account whether the





1 ultimate objective of an adversarial system will be

2 prejudiced, namely the decision maker being appraised of

3 information which will influence the outcome of the

4 decision, but none of the parties being aware of it or

5 one of the parties not being aware of it.

6 What is important in this instance is that the

7 Tribunal has full access to as much information as it

8 conceivably can which it considers relevant, upon which

9 it may make its decision, which is in a non-adversarial

10 landscape and which is based upon truth, not proof.

11 What I respectfully submit in relation to that, the

12 proposal, firstly, would appear that the Tribunal has

13 considered a body of information which it has come to

14 the conclusion engages potentially the right to life and

15 also the necessity to protect the national interest in

16 terms of the security services' work.

17 Therefore, they have determined that there ought to

18 be oral hearings in the absence of the parties. What

19 I respectfully submit is it is impossible for anyone to

20 go behind that because that is based upon the integrity

21 of the Tribunal and Tribunal counsel.

22 If, during the course of the hearings, it becomes

23 apparent that the Tribunal would benefit from the

24 introduction of one or more parties in its quest for the

25 truth in relation to its Terms of Reference, then it is





1 entirely, not merely, open to the Tribunal, but

2 considered that the Tribunal will seek that assistance.

3 And I might say, well, while I have reviewed the

4 submissions that have been made, some of those

5 submissions are much more persuasive than others.

6 And what I particularly refer to is the SMT, where

7 it may be that having heard initially the witnesses who

8 have provided intelligence information, that the

9 Tribunal, on reflection, believes that there is an

10 expertise which is available to the SMT, which ought to

11 be utilised in making a determination in relation to

12 what the information that it is receiving, then with

13 respect it would be foolish for any tribunal not to

14 avail of such assistance.

15 What I respectfully submit is that the important

16 matter for all of us as active participants is the

17 recognition of what our role is. Our role is to protect

18 the interests of our clients, but to assist the Tribunal

19 in establishing the truth insofar as it can, within its

20 Terms of Reference.

21 It is subsidiary to but not necessarily inferior to

22 the role of the Tribunal. There is no one better placed

23 in this Tribunal than Counsel to the Tribunal to make

24 the initial determinations because no one has the

25 breadth and depth of view that he has. It is then for





1 the Tribunal to look at and follow the lines that he

2 recommends, and if there are gaps that need to be

3 filled, then the expertise of others ought to be filled.

4 I might say I have no desire to be placed in

5 a position where I'm DV'd. I have no urgent desire that

6 that should happen, but at the same time what

7 I respectfully submit, I have equally well no desire to

8 be placed in a position where I am in possession of

9 knowledge which may endanger someone's life or imperil

10 national security. And the only way that I believe that

11 that should be imposed upon me is if the Tribunal came

12 to the conclusion that I could not properly discharge my

13 function in relation to the advice I have to give my

14 client, or the Tribunal were to come to the conclusion

15 that the central significance of the information which

16 it was receiving was of such importance that a failure

17 to disclose it would undermine public confidence in the

18 decision which the Tribunal has ultimately to make.

19 I respectfully submit there can be fewer examples of

20 what genuinely falls within the margin of appreciation

21 of the Tribunal than these issues. And because of the

22 singular importance of the protection of the public and

23 the right to life, these are matters where, I am afraid,

24 the individual roles that we have to play must be

25 secondary to the decisions and judgments of those who





1 are in a better position than us to make those

2 decisions.

3 When one looks at the broad spectrum, my client has

4 confidence that if there are issues that arise and this

5 Tribunal makes a determination that it ought to have an

6 input from him by way of oral or written submissions,

7 then the Tribunal will do so. And what I respectfully

8 submit, therefore, when one comes to look at all of

9 these matters, we are also all lawyers. When it comes

10 to calling witnesses, it is almost improbable that we

11 will not be able to know the areas which the Tribunal is

12 pursuing with the witnesses. That is made readily

13 clearly in the submissions of the SMT.

14 We don't live in vacuums. We might occasionally

15 pretend we do, but the issues, I respectfully submit,

16 are not issues that ultimately require weeks' notices or

17 days' notices. If we have read the papers, we see the

18 witness and we know that he is being asked to repair to

19 a private session, then more or less we will know what

20 is going on, and what we don't know, perhaps like

21 Donald Rumsfeld, we are better not knowing.

22 So in terms of the approach of the Tribunal, might

23 I say that we support the approach of the Tribunal. We

24 support the approach of the Tribunal not simply as set

25 out in the letter, but the assurances we have been





1 given, and our anticipation that far from being rigid,

2 the approach will be one of constant review, flexibility

3 and fluidity.

4 Thank you.

5 THE CHAIRMAN: Thank you very much, Mr Harvey.

6 Mr O'Hare?

7 Submissions by MR O'HARE

8 MR O'HARE: Essentially, Mr Chairman, you have the written

9 submissions already provided by my instructing solicitor

10 by letter dated 25 September, and I just wish to amplify

11 on one or two of the matters contained therein.

12 Firstly, by way of preface, can I respectfully adopt

13 much of what my learned friend Mr Harvey has said in

14 relation to the position of the SMT. That is something

15 that I would like to come back on, with permission, once

16 my learned friend Mr Griffin has made his submission,

17 but can I simply say this at this stage?

18 You have the position of our clients by letter dated

19 5 September. What we respectfully submit, Mr Chairman,

20 is that at all stages throughout there should be

21 a flexible and moveable procedure to facilitate the

22 hearing of this evidence. So it should not simply be

23 the case, in our respectful submission, that because

24 evidence is of a sensitive nature, everybody should stay

25 out and that should be the end of the matter, people





1 come back in at the conclusion of such evidence without

2 anything more.

3 What we would respectfully urge upon the Tribunal is

4 some sort of flexible mechanism whereby, as legal

5 representatives of our clients and of Full Participants,

6 we can know in advance in general terms, in general

7 terms, an outline of the nature of the evidence which it

8 is anticipated will be given.

9 So when I say that, I don't mean, for example, that

10 names of informers, house addresses, occupations,

11 things like that, should be given. But what we are, I

12 would respectfully submit, entitled to know -- we are

13 entitled to know an outline of the type of evidence

14 which is going to be given, subject always to the

15 confines my learned friend has already outlined in terms

16 of the national security and risk to life.

17 Now, that doesn't, in our submission, compromise any

18 of the concerns which the Inquiry, quite rightly, has,

19 but what it does do is it reflects our client's

20 interests in the evidence which is about to be given

21 here.

22 I think I outlined in opening submissions that

23 a good deal of the material in the Part 1 evidence was

24 already evidence which was very much largely in the

25 public domain, very important evidence. But from our





1 client's perspective, it is the evidence we are about to

2 embark upon which has always been seen by them as being

3 at the very heart of this Inquiry. And so to that

4 extent, they have an interest in knowing what is going

5 on.

6 They are not interested, can I stress, in the

7 detail; they are not interested in any information which

8 is going to endanger anybody's life; they are not

9 interested in detail which is going to endanger national

10 security. But they do want to be kept abreast and

11 informed of what is happening in this chamber.

12 Now, when I say that, the full context of that

13 submission is that right the way along -- and Mr Griffin

14 will no doubt touch on this -- is that the Murder

15 Investigation Team were keeping the family involved

16 insofar as they could, subject to the strictures of

17 security sensitivity. Insofar as they could, they were

18 keeping our clients informed of the way the

19 investigation was proceeding. And in terms of Part 2

20 and Part 3, our clients see this evidence as being very

21 much a continuation of that.

22 So if it can't be achieved for good reasons that

23 their legal representatives should be in the chamber

24 when such evidence is being given, at the very least we

25 submit, and as a bare minimum, we should be kept





1 informed as their legal representatives of the general

2 type of evidence that it is anticipated will be pursued

3 by questioning and, after the fact, what has in fact

4 happened during the course of such evidence.

5 I respectfully agree with my learned friend when he

6 says there can't be an inflexible mechanism here. That

7 has to be kept under review at all times. It may well

8 be that there will be information given which it is not

9 right at all to divulge, but that is something which

10 should be kept constantly under review, and at all

11 stages we should be kept informed.

12 And I think that, as the bare minimum, is the least

13 the Full Participants are entitled to expect.

14 THE CHAIRMAN: Thank you very much, Mr O'Hare.

15 Yes, Mr Griffin?

16 Submissions by MR GRIFFIN

17 MR GRIFFIN: Sir, we are very conscious that there is a very

18 difficult decision that needs to be made which balances

19 competing interests, the public interest in maintaining

20 an open inquiry, with the clear public interest in not

21 disseminating highly sensitive material.

22 Some comfort can be drawn from our reading of the

23 submissions and from what I have just heard from the

24 fact that it seems the Full Participants agree that

25 closed hearings in principle are appropriate.





1 The issue really is who should be granted access to

2 those hearings and whether or not there can at this

3 stage be some rigid procedure that anticipates at this

4 stage who should be allowed in.

5 Sir, I represent, for these purposes, the SMT, the

6 Senior Management Team. And for these purposes, that is

7 Colin Port, Arthur Provoost, Sam Kincaid and M540.

8 We support the holding of closed hearings and we

9 suggest that in fact they symbolise the Inquiry's

10 determination to get to the truth because it is

11 a recognition that holding unredacted documentation, as

12 the Panel and the Inquiry does, is not in itself always

13 sufficient. That documentation needs to be

14 appropriately probed and that can only happen, in

15 certain cases, in closed session.

16 We suggest -- and you will have seen in our

17 submissions precisely what we suggest -- but in essence,

18 what we suggest is that there are certain defined and

19 specific areas where the SMT can assist the Inquiry in

20 getting to the truth. And we develop that because we

21 suggest further that in our absence there is a danger

22 that the Inquiry will not be able to get to the truth

23 where it is dealing with certain specific issues. And

24 it is relevant, therefore, to consider the specific and,

25 I would suggest, unique position of the SMT for these





1 purposes.

2 Sir, I have set out in the submission at

3 paragraph 14 a summary of the submission as it relates

4 to the four individuals who we are calling the SMT.

5 I don't propose here to go through that in any detail,

6 but it is relevant to draw out a couple of points.

7 These are people who have had access to highly

8 sensitive material directly relating to the murder

9 investigation. And Arthur Provoost, who I will be

10 turning to consider in a little bit more detail shortly,

11 has had a hand in the redaction exercise for the

12 purposes of getting out redacted information by the

13 Inquiry.

14 These four individuals also have an unparalleled

15 knowledge of the murder investigation, and their unique

16 position is that they are able to provide a link between

17 intelligence material on the one hand and the murder

18 investigation on the other.

19 It is our submission that, in relation to certain

20 material, one representative of the Senior Management

21 Team should be permitted access to the closed hearings

22 together with his solicitor and/or his counsel. And the

23 area that I have specified in this submission relates to

24 what has been termed in shorthand the "obstruction

25 issue". That in many ways is a misnomer and I should





1 make clear at the beginning that there is no assumption

2 of obstruction by the SMT. It is an issue that the

3 Inquiry will be looking into.

4 It is set out in more detail -- and I have put it in

5 paragraph 7 -- in the Inquiry's own List of Issues, at

6 issues 20 and 21 and as far as obstruction is concerned,

7 the Inquiry will consider whether various state

8 agencies, or any single one of them, obstructed the

9 investigation into Mrs Nelson's death and whether any

10 such obstruction was intentional or negligent.

11 And what I have done in paragraph 7 is to set out

12 certain issues that we suggest flow from those two

13 issues, and they are in a series of bullet points that

14 you can see in paragraph 7.

15 I have to say that the first three at least are if

16 not direct quotes from Mr Phillips, they are taken from

17 his opening on Day 10 and possibly on Day 14.

18 Sir, I don't at this stage intend to go through each

19 of those bullet points, but what I would like to do is

20 to take an example, perhaps the first two points, which

21 are interrelated to provide an example of the way in

22 which we suggest the SMT can provide real assistance to

23 the Panel and to the Inquiry generally.

24 The two bullet points that are set out there for

25 consideration are whether intelligence may have been





1 withheld from the Murder Investigation Team -- and that

2 is a question, that is an issue. That is not

3 a suggestion. But that is an issue that will need to be

4 seriously considered -- or whether attempts were made to

5 withhold that intelligence.

6 In paragraphs 8 to 10, I set out why it is, we

7 suggest, there needs to be a representative of the SMT

8 in any closed hearing where material is discussed which

9 touches on those issues.

10 We suggest that it is really only the SMT who are

11 properly in a position to be able to say what

12 intelligence material they were provided with, and it is

13 in fact a very complex question because there are

14 various different forms and formats in which the

15 material can be provided, including, for example,

16 sanitised material or summarised material. But it is

17 the SMT who are best placed to assist the Panel and the

18 inquiry in that regard.

19 We have set out in paragraph 9 -- and I don't intend

20 to deal with this now -- the difficulties that occur if

21 you try and front load the procedure, if you try and get

22 someone in advance of a witness's evidence to prepare

23 a list of items that may or may not have been disclosed.

24 It is a very difficult thing to do and, in fact, so far

25 it has proved impossible.





1 And we suggest it is not sufficient, for example,

2 that the SMT be provided with some of the unredacted

3 material. There needs to be a presence within the

4 hearing chamber at the time of the closed hearing for

5 a number of reasons. And one of those reasons is

6 mentioned in Mr Myers's letter of 18 September.

7 We simply do not know as Full Participants precisely

8 what it is will be covered by Inquiry Counsel with

9 a particular witness. That may be for good reason, but

10 we don't know.

11 The letter, I think, states expressly that Inquiry

12 Counsel may wish to deal with matters that are not

13 covered in the statement.

14 We don't know if a witness will voluntarily depart

15 from his statement and deal with other matters. We

16 don't know if, under close questioning, a witness will

17 say something that is at odds with his statement, and so

18 on. These are matters that we can't anticipate, and we

19 can't assist, therefore, the Inquiry in getting to the

20 truth.

21 I echo what Mr Harvey has said. We, as lawyers for

22 the Full Participants, have a dual role: of course, to

23 look after our clients' interests, but importantly to

24 assist the Inquiry to fulfil its objective, which is

25 ultimately to get to the truth.





1 I set out also from paragraph 11 onwards certain

2 matters that I don't -- unless you would like me to --

3 intend to deal with now relating to the question of

4 fairness. But perhaps I should come on to precisely

5 what it is we propose should now take place in terms of

6 amending procedures.

7 And, again, we do echo what Mr Harvey has said and

8 what Mr O'Hare has said: that there needs to be a degree

9 of flexibility. And what has concerned us up to now is

10 that the letter of 18 September doesn't allow for that.

11 But what we suggest should take place is that where

12 a witness is to give evidence on issues which touch on

13 obstruction -- and I'm using that as the short term --

14 I don't intend to use it pejoratively. I am just using

15 that because it is a useful short term phrase to use.

16 But where it touches on obstruction -- and we've set out

17 in our statement why, by extension, also due diligence

18 because the two matters of interrelated -- one member of

19 the SMT should also be permitted entry into the closed

20 hearing together with one or more of his lawyers, either

21 a solicitor or a solicitor and counsel.

22 We suggest that the person best placed to assist

23 would be Arthur Provoost, and at paragraph 16 I set out

24 in brief why we suggest that to be the case.

25 He is currently the officer in overall command of





1 the murder investigation, which is ongoing. He is well

2 placed to receive and safeguard sensitive information

3 and he has a current and detailed knowledge of the

4 investigation. And he has -- I have said there he has

5 recently conducted a review of the intelligence received

6 by the MIT, but that is something that is also ongoing

7 as well. So it is not something that has yet been

8 completed.

9 Sir, for all of those reasons, we suggest that in

10 certain limited and defined circumstances an SMT

11 representative and his lawyer or lawyers be permitted

12 access to the closed hearings.

13 Sir, unless there are points that I can assist with

14 arising from my submissions, there is nothing further

15 that I would wish to state.

16 THE CHAIRMAN: Thank you very much, Mr Griffin.

17 MR GRIFFIN: Thank you, sir.

18 THE CHAIRMAN: Mr Donaldson?

19 Submissions by MR DONALDSON

20 MR DONALDSON: In the time available we have made quite

21 detailed written submissions in relation to closed

22 hearings. I'm not sure at the present time that we are

23 in a position to deal fully with the matters which have

24 arisen from the submissions which we have received.

25 Yesterday afternoon, after five o'clock -- in fact,





1 I was driving out of the building when I was handed the

2 papers, the various written submissions, in order to

3 deal with them. Now, I have read them. There are some

4 submissions, though, that I have not had the opportunity

5 of considering. For example, when I came in just now,

6 there are sitting here submissions from the NIO that I

7 haven't even read, nor were we furnished with

8 submissions which have been made by Mr Harvey.

9 Furthermore, in respect of the submissions of which

10 we had an opportunity to read, we attempted today to

11 take instructions on some matters which are of great

12 importance, but we haven't had time to do that. But

13 nonetheless, doing the best we can, I have some

14 observations that I can make at the present time.

15 I think firstly we do agree in principle with the

16 practice of closed hearings. We also agree that there

17 should be protocols in place in order to deal with them.

18 But I agree with some of the speakers who have made

19 submissions before that there would need to be an

20 element of flexibility in those protocols.

21 We also agree that there should be restricted

22 attendees at the closed hearings, and only those whose

23 presence or whose representatives have a strict need to

24 be there should be there because these are matters of

25 considerable sensitivity which will have to be dealt





1 with.

2 Now, in relation to the matter, it seems to me that

3 one of the crucial matters here is firstly in relation

4 to who should be present at the closed hearings.

5 Everyone, of course, wants to be present, as far as

6 I can see, for various reasons that have been given.

7 Others are seeking unredacted statements and sensitive

8 information. We do not agree with that, and we feel --

9 and we would emphasise -- that this should be very

10 carefully monitored.

11 Mr Griffin, for example, has made a point that he

12 would wish his clients to be represented because of some

13 superior knowledge they have. It is true they have been

14 enquiring into this murder for nine years, but

15 unfortunately no one has yet been made amenable. We are

16 at a disadvantage, however, in relation to the four

17 names that he mentioned because we have no statements

18 yet from those persons. Therefore, it is very difficult

19 for us and, I think, for the Tribunal, to judge that

20 application on its merits because you don't have the

21 benefit of having statements from the personnel

22 involved. And, therefore, we feel that if something --

23 perhaps there might be some discussion about later, but

24 we would like to have the opportunity of making further

25 submissions about it if and when we receive those





1 statements.

2 There is also an issue concerning the information

3 which will be given in advance to those witnesses who

4 may be questioned at closed hearings. I think there

5 seems to be a general consensus among my learned

6 colleagues who have made submissions that in fact there

7 should be some indications in advance of the general

8 nature at least of the issues to be addressed in closed

9 hearings.

10 One would have expected Eversheds, when interviewing

11 witnesses, to have asked about every matter which bore

12 or can bear on the 29 issues. But it seems that the

13 intention or the expectation is that there will be

14 a discussion of sensitive issues which have not yet been

15 raised and of which the witness may not be aware.

16 Furthermore, the witness would need to be provided

17 in advance with any documentation which may be of

18 relevance. So that it is not just an ambush situation

19 for the witness, but that the witness should be treated

20 fairly and that he should be given some indication in

21 advance of the general nature at least of the matters

22 about which he is likely to be questioned.

23 There is not really, sir, at the moment, a lot

24 further that I wish to say because, as I have indicated,

25 we have not had an opportunity to take instructions





1 especially in respect of unredacted statements, which

2 some witnesses would wish to see. For example, I notice

3 in the submission from the Security Services that they

4 would wish to see unredacted statements.

5 Now, I have had a discussion with their

6 representative this morning and it may well be that some

7 agreement could be reached about that in due course, but

8 that is why I say, sir, that if we had time perhaps to

9 take instructions, now that we know the colour of the

10 applications, we might be in a position perhaps to reach

11 some agreement in respect of that, so that everyone will

12 be properly protected and that everyone should be

13 treated fairly and receive the information which they

14 are entitled to.

15 We in the PSNI, we represent probably the vast bulk

16 of the people who are liable to be called to closed

17 hearings and especially officers from Special Branch.

18 We don't know yet how many are affected by this. We

19 have asked about that, but I think there has been some

20 difficulty perhaps about identifying the numbers

21 involved. But it would help, I think, to know perhaps

22 in time who it is intended will be affected by the

23 liability to be questioned at a closed hearing. But

24 further than that, we cannot go.

25 We would like, therefore, to have time perhaps to





1 take instructions on matters. They are highly sensitive

2 matters. We would need to consider these with those who

3 can advise us. There is a lot of this material, the

4 nature of which we are not ourselves fully aware, and

5 the Panel will know a lot more about it than we do. But

6 we can receive some general advice about it and be,

7 therefore, in a position to indicate to the Panel in due

8 course what our attitude is to the various submissions

9 which have been made.

10 But the overriding principle really is that no

11 information should be released to those who are not

12 strictly entitled to it, and that those who may be

13 placed at risk might be protected so that risk is

14 minimised and that the work of this tribunal can

15 continue without any hindrance, and that the Tribunal

16 obtain all the information that is necessary in order to

17 deal with the issues which are before it.

18 Thank you.

19 THE CHAIRMAN: Thank you, Mr Donaldson.

20 MR GRIFFIN: Sir, may I just mention one thing which

21 I omitted to mention, arising from something Mr O'Hare

22 said.

23 He suggested that I might touch on the degree to

24 which the MIT were in contact with the families. I am

25 happy to put on the record that Colin Port and, after





1 him, the family liaison officers were keeping the

2 families informed as well as they could in the

3 circumstances they were operating in.

4 I'm sorry that I didn't mention that before.

5 MR HARVEY: Might I say that one of the matters which has

6 influenced the approach of my client in relation to

7 these applications is that, as far as he is concerned,

8 his contacts with the MIT are such as that he is aware

9 that this is a continuing investigation and, therefore,

10 that the MIT, or the SMT as it is before us, is still

11 kept fully appraised of all of the material which may

12 assist them in their inquiry. And it is one of the

13 reasons why we are, when we saw these submissions,

14 sympathetic, if I can put it that way, to the

15 submissions that have been advanced on behalf of the

16 SMT.

17 MR O'HARE: Can I just indicate I am grateful to my learned

18 friend for that indication and, likewise, we support him

19 in his application.

20 THE CHAIRMAN: Thank you.

21 Yes, Mr Aiken?

22 Submissions by MR AIKEN

23 MR AIKEN: My Lord, can I say first of all we didn't mean to

24 inconvenience anyone. We intended to make oral

25 submission as Mr Harvey did, but in an attempt to save





1 you taking notes over lunchtime, I typed it up and used

2 the printer the secretaries kindly provided to me.

3 THE CHAIRMAN: We have got it now.

4 MR AIKEN: Indeed. So it wasn't to cause any inconvenience

5 to anyone, but rather to save you and have a record then

6 for your consideration.

7 Can I say that it occurs to me, having moved down

8 the table towards the end, that everyone is in agreement

9 in terms of the principle by and large, and each party

10 has picked on certain issues that affect them that they

11 would like to see embodied in a procedure as it will be

12 developed by the Panel.

13 Can I say as far as the NIO is concerned, we accept

14 the principle of closed hearings where it is necessary,

15 we concur with the Inquiry that closed hearings should

16 be at a minimum because of principles of open justice,

17 and we agree that every step and mechanism possible

18 should be considered by the Inquiry to ensure that as

19 many open hearings as possible can take place.

20 Where closed hearings are necessary -- and we accept

21 that they are -- we accept that presence at those

22 hearings should be regulated by the principles

23 identified by the Inquiry, namely the developed vetting

24 procedure of those who are to be present and the need to

25 know principle. That is our take on the information





1 that was provided to us on 18 September.

2 As far as our client is concerned, it hopes that it

3 will be the case that any closed hearings that are

4 required will not actually have any impact on it and

5 that, accordingly, it may turn out to be unnecessary for

6 us to concern ourselves to any great degree in these

7 issues. That perhaps is borne in mind by the fact we

8 are not a party who has been consulted by Inquiry

9 Counsel to date.

10 That said, when we received the letter of

11 18 September, which was the first indication that we had

12 in relation to this issue, we considered as a team how

13 we could assess whether the closed hearings were likely

14 to have any impact on our client and, if that were the

15 case, what submissions we ought to make on the

16 procedures that the Inquiry might consider adopting.

17 Accordingly, we asked our instructing solicitor to

18 write to the Inquiry asking for a list of the witnesses

19 that the Inquiry have envisaged would be affected by the

20 procedure. Unfortunately, the reply that we received on

21 24 September indicated that it wasn't possible to

22 provide a definitive list of witnesses.

23 While we accept entirely that it will not be

24 possible to provide a definitive list, we would have

25 thought it was possible to provide us with at least





1 a provisional and incomplete list of those witnesses

2 that will be subject to the closed hearing procedure.

3 We came to the view that the Inquiry would at least

4 be aware of some individuals who would definitely fall

5 within this category. We are now aware of the existence

6 of the one of the witnesses who it is envisaged will

7 give evidence at a closed hearing. That individual has

8 been identified in an email to us.

9 Up until today, we were going to indicate to the

10 Panel that, unfortunately, as we didn't have their

11 statement, it wasn't possible for us to engage in that

12 assessment process to see whether we would have anything

13 to say in relation to that witness. However, I have

14 today had sight of a letter from the Inquiry of

15 30 September, and can I ask if the Panel members have

16 a copy of that letter because I wish to seek --


18 MR AIKEN: Perhaps if that could be attended to.

19 THE CHAIRMAN: Can you help us, Mr Phillips?

20 MR PHILLIPS: I can't, sir. I am rather in the dark about

21 this and I suspect we are going to get into a great deal

22 of confusion, but I will try and get some copies made.

23 THE CHAIRMAN: Thank you.

24 MR AIKEN: I am obliged.

25 MR PHILLIPS: There is one thing I should say about it,





1 which is that this letter addresses the particular

2 position of a particular witness.


4 MR PHILLIPS: It does so for a very good reason, and

5 certainly I did not anticipate that the terms of the

6 letter would become the focus of submissions on this

7 occasion or, indeed, on any other occasion.

8 THE CHAIRMAN: Mr Aiken, it might be preferable if this

9 matter were dealt with on another occasion privately,

10 because if we are dealing with an individual -- as I

11 understand that is the position, is it?

12 MR AIKEN: That is one of the issues I'm not clear about.

13 What I'm going to go on to do is suggest some matters

14 that the Inquiry could consider in terms of a procedure

15 to deal with --

16 THE CHAIRMAN: In a general way?

17 MR AIKEN: Yes.

18 THE CHAIRMAN: We will hear you on that, but we don't want

19 to hear about this individual.

20 MR AIKEN: No. But I think you do need to see the letter in

21 front of you because it envisages a different type of

22 procedure from the one in the letter of 18 September and

23 one that I would be endorsing, which is why rather

24 than --

25 THE CHAIRMAN: Mr Skelton, can you assist at all?





1 MR SKELTON: I appreciate that neither the Tribunal nor the

2 Participants have the letter in front of them.

3 There are some very particular circumstances

4 pertaining to that particular witness whose safety is at

5 issue in this Inquiry, which has led us to hold a

6 hearing in private and to restrict access to his

7 evidence both in terms of his written statement and

8 attendance at a hearing.

9 That is not the same as a closed hearing, and it is

10 unfortunate that perhaps I didn't get the opportunity to

11 explain that to Mr Aiken in advance, but I hope that is

12 clear.

13 THE CHAIRMAN: I think you should leave that completely.

14 MR AIKEN: Indeed. Save to say, if I may, that I would be

15 obliged if the Panel would consider it because it

16 contains some helpful mechanisms that might be adopted

17 in a procedure generally, if it is possible.

18 THE CHAIRMAN: We will in due course.

19 MR AIKEN: What I would say then is if it is the case -- and

20 it seems that it now is -- and I am grateful for that

21 clarification -- that the procedure set out on

22 30 September is not to be a generic one and it is not

23 going to be applied to the other witnesses who are

24 subject of closed hearings, then our reservation would

25 remain that we would wish to consider and be able to





1 consider the content of the statements redacted or

2 otherwise of those individuals who are to be subject to

3 procedure before coming to a view on the procedure that

4 should be adopted.

5 However, we would want to ask the Panel to consider

6 that any closed hearing procedure incorporates the

7 ability of a Full Participant, having considered the

8 witness statement of the witness who is to give

9 evidence, to apply to be present during the closed

10 hearing.

11 If the Full Participant, on the basis that they

12 expect the interests of their clients to be affected by

13 the evidence to be given by that witness, the

14 application would be based on the two grounds: first of

15 all, that developed vetting has been complied with; and

16 then on the basis that if our client's interests are to

17 be affected having considered the witness statement,

18 then the legal representatives of the NIO, or whichever

19 other party it applied to, would come within the need to

20 know principle.

21 What we are suggesting is at least the opportunity

22 to make application to the Panel to consider whether

23 there are grounds, in terms of hearing our submission,

24 as to whether we are going to be affected or are likely

25 to be affected by the evidence and, therefore, should be





1 present.

2 If such an application was made by a Full

3 Participant on the basis that their interests will be

4 affected, and the Inquiry, having heard them, refuses

5 that application, then the next issue that occurs to us

6 that arises is who is to protect the interests of that

7 Full Participant who made the application that their

8 client's interests were likely to be affected in their

9 view.

10 For instance, if on hearing the evidence in the

11 closed hearing, will it be for the Inquiry Counsel to

12 then assess whether, in this case, the interests of the

13 NIO have actually been affected by that evidence, as the

14 Full Participant felt it might, will the Full

15 Participant then be informed about the content of the

16 evidence? Will there be an opportunity for the Full

17 Participant to test that evidence in any way, and what

18 use can be made by the Full Participant of the material

19 they are then informed about by Inquiry Counsel?

20 It seems to us on behalf of the NIO that the proper

21 way to proceed, if the model set out in the letter of

22 30 September is not going to be universal -- and it

23 seems it isn't -- then in order to be fair to the Full

24 Participants as far as the Inquiry can, the Inquiry

25 should make known on a provisional basis the witnesses





1 that are likely to be affected by this procedure so

2 their statements can be considered.

3 Further, that the Inquiry, having considered the

4 representations that have been made, some of principle

5 and some of practicality, by the various participants,

6 the Inquiry should now proceed as far as it can to draft

7 a protocol for the closed hearings, in conjunction with

8 the Full Participants if that will be helpful, which

9 allows us to make application for attendance on the

10 grounds that I have already outlined, and caters for any

11 evidence that arises in the closed hearing in our

12 absence that affects our client's interests to be

13 communicated to us in some way.

14 Once the draft protocol, which I'm suggesting, is

15 available for consideration, then I submit that the Full

16 Participants should have the opportunity in conjunction

17 with the Inquiry to consider the draft and then make any

18 further submissions on it, so that together we develop

19 the best procedure possible, taking into account the

20 various competing interests that are involved.

21 There are obviously other issues that arise that the

22 Inquiry needs to look at in terms of, for example, what

23 is to be done with the evidence gathered at the closed

24 hearing. And we welcome the very sensible approach

25 contained within the procedure set out in the -- I'm





1 sorry, I'm referring again to 30 September, but it

2 contains some helpful ways going forward, as it were,

3 after the evidence has been given, for the use of that

4 evidence, although we accept that it may not be possible

5 to adopt that approach in all cases.

6 We repeat that the submissions are intended to be

7 helpful and to assist the Inquiry in coming to a fair

8 procedure, and we trust they will be given full

9 consideration on that basis. And unless there is

10 anything else I can assist with, my Lord, those are the

11 submissions of the NIO.

12 THE CHAIRMAN: Thank you very much.

13 On behalf of the Security Services, I will call you

14 Mr AN Other, if I may.



17 for giving me this opportunity to make some

18 supplementary submissions, supplementary to those in my

19 letter of last Friday.

20 Mr Eicke very much regrets that he cannot be here.

21 He would have come if he had been able to. I have

22 spoken to him and these oral submissions do reflect the

23 matters that we discussed, and have his approval.

24 First of all, may I say to the Inquiry that the

25 Security Service wholly supports the desire of the





1 Inquiry to have as much as possible of the oral evidence

2 given in open hearings. And for our part, the Service

3 does actually support the giving of as much evidence as

4 possible in open, insofar as that is consistent, of

5 course, with national security and human rights,

6 including the right to life.

7 And this approach is reflected in the redaction

8 process and in the redactions that have been made with the

9 Inquiry's agreement to the Service's witness statements.

10 Redactions have only been made where necessary for those

11 reasons, and it is clear that the same considerations

12 have informed the Inquiry's approach to the closed

13 hearings. And may I say that we are extremely grateful

14 for the evident care and thought that has gone into

15 this, and we would respectfully welcome the proposals set

16 out in your Solicitor's letter of 18 September.

17 We believe that the restriction on attendees is

18 entirely consistent with the need to know principle and

19 is necessary to protect national security. And I would

20 acknowledge that, of course, any kind of procedure

21 should be applied flexibly. There is always a balancing

22 process that has to take place between fairness and the

23 interests of security and human rights.

24 But we would submit that the Inquiry should only

25 relax the restrictions on attendance of other Full





1 Participants at a particular party's closed hearing if

2 there is some overriding justification for doing so,

3 which will not endanger national security or Article 2

4 rights. So we would generally favour the exclusion of

5 other parties' representatives at, say, the Security

6 Service closed hearings for our witnesses.

7 If I may say so, because it was in Mr O'Hare's

8 letter although he didn't develop it in the course of

9 oral submissions, we would respectfully submit that it

10 would not be a solution to that to allow, say, just the

11 legal representative to attend the closed hearing.

12 It may be helpful if I just expand on that because

13 Parliament in other contexts has made it very clear what

14 the approach should be to the consideration of closed

15 material in legal proceedings. First of all, in the

16 Special Immigration Appeals Commission Act of 1997 and

17 also in the Prevention of Terrorism Act 2005, Parliament

18 has decided that where sensitive intelligence material

19 is in issue, there should be no question of the

20 appellant or the appellant's legal representatives

21 having access to that material.

22 It is for that reason that Parliament has set up

23 a specific special advocate procedure to deal with the

24 handling of closed, sensitive material in those cases to

25 try and reconcile the competing interests of national





1 security and the right of the appellant to know, so far

2 as possible, the case against him.

3 Now, may I say I'm not for one minute suggesting

4 that it would be appropriated in this context to

5 introduce special advocates into the Inquiry's procedure.

6 All I would say is that if it were to be the case that the

7 kind of sensitive security material that is going to be

8 considered in the closed hearings were to be disclosed

9 to the legal representative for any of the parties, it

10 would place them in an impossibly difficult conflict

11 situation because of the duties of lawyer to client and

12 the duty of full and frank disclosure.

13 It is very interesting in the case of special

14 advocates, of course that whilst they have access to the

15 closed material, once they have done so, they go into

16 purdah and they are very severely restricted in their

17 ability to communicate information they have learnt from

18 the closed material to the appellant whose interests

19 they represent.

20 No one is suggesting bad faith in such a case. The

21 rule is simply to prevent the risk of inadvertent

22 disclosure of sensitive material. And if an analogy

23 were to be drawn, what would happen in a case such as

24 this, in a public inquiry, would be that it would be

25 necessary to appoint additional counsel who would be





1 DV'd who would then have access to the closed material

2 but who would not be at liberty to disclose what they

3 had seen to the party whose interests they represent.

4 Now, as a further sort of softer compromise, if you

5 like, as Mr O'Hare developed the suggestion today, an

6 outline of the nature of the evidence could perhaps be

7 given to the legal representatives of another Full

8 Participant.

9 I must say that is fair enough in theory, but that

10 begs the question of whether the disclosure of even the

11 outline of the nature of the evidence the closed hearing

12 would itself endanger national security or Article 2

13 rights.

14 It may be something that would have to be considered

15 on a case by case basis, but I'm not sure that would

16 necessarily be the solution to this. Insofar as we can,

17 we are in any event happy to allow information

18 emanating from the Security Service to be communicated to

19 the other parties provided that that has been carefully

20 considered and we are able to factor into the process

21 any national security sensitivities.

22 Now, as regards the attendance by the MIT at closed

23 hearings of other Full Participants' witnesses,

24 as to the obstruction issue, I would respectfully submit

25 that the Inquiry is well equipped to consider





1 the issue of "obstruction", with quotes round

2 it, in the light of the totality of the evidence before

3 them. And if points did emerge in the course of the

4 closed hearing involving one of the other Full

5 Participants' witnesses, surely it would be open to the

6 Inquiry to put that to any of the other Full

7 Participants' witnesses.

8 On the other hand, in the event that a fairness

9 issue arose, in the event that in the course of a closed

10 hearing someone gave some evidence which suggested that

11 there had been a failure by the MIT in its due diligence

12 obligations, I would submit that surely the basic

13 principles of natural justice and the Salmon principles

14 would behove the Inquiry to put those points that might

15 lead to criticism of the MIT officers to those MIT

16 officers.

17 So in the light of the representations we have heard

18 today, and the written submissions, we are not persuaded

19 that there is a sufficiently compelling case to make any

20 exceptions.

21 Now, what I would like to do before closing is just

22 to reiterate the three points in my letter. One was

23 simply it would be very helpful to our witnesses to have

24 a general indication of areas of questioning to which

25 they will be subjected in the closed hearing. We





1 understand that you cannot put lists of questions, but

2 it would obviously be helpful to have some indication.

3 We believe our witnesses will be able to assist the

4 Inquiry more fully if they have a general indication of

5 the areas to be covered and general issues.

6 Secondly, it would be very helpful to the Service if

7 we could have a trio attending the closed hearings for

8 our own witnesses; that is counsel, myself and one of my

9 colleagues who is well versed in disclosure and security

10 issues.

11 Now, in closing I would just like to explain why it

12 is that in the case of the Security Service we have made

13 the request that we have made to the PSNI for access to

14 the unredacted witness statements with a view to

15 possibly attending at some of the closed hearings

16 involving PSNI officers.

17 Now, the reason for this is twofold: first of all,

18 some of those hearings may involve questioning of

19 witnesses where Security Service information is actually

20 in issue. Secondly, the service does now have primacy

21 for national security in Northern Ireland. Serious

22 responsibilities flow from that, and we believe that in

23 some of the cases where the PSNI officers will be giving

24 evidence, it is likely that those responsibilities of

25 the Security Service will be engaged.





1 The request is not for a blanket approval, sir, to

2 attend all the hearings involving all the PSNI officers.

3 What we propose is a two-stage process. We will be very

4 grateful if we could be given access to the unredacted

5 statements of the PSNI officers. This would then enable

6 us to assess those cases where, first of all, Security

7 Service information was likely to be in issue in the

8 course of the closed hearing of that witness, and

9 secondly it would help us to identify those cases where

10 the questioning was likely to engage the Security

11 Services' own responsibilities for national security in

12 Northern Ireland.

13 It may be that in the case of certain other parties,

14 also cases might arise where our information will be in

15 issue. But at this stage, what has occurred to us, it

16 seems most likely that at this stage it is the PSNI

17 where in one or two cases, or perhaps more -- but I hope

18 it will not be a large number -- where it will be

19 extremely important from the point of view of

20 discharging our responsibilities to be given that

21 permission.

22 If I can assist you any more, I would be delighted

23 to do so. Again, my apologies that Mr Eicke was not

24 here.

25 THE CHAIRMAN: Thank you very much.





1 Mr Robinson?

2 Submissions by MR ROBINSON

3 MR ROBINSON: Yes, sir, members of the Inquiry team, I can

4 indicate that we take no issue with the proposals set

5 out in the Inquiry team's letter of 18 September.

6 Unless there is anything I can assist further with?

7 THE CHAIRMAN: Thank you.

8 Mr McGuinness?

9 Submissions by MR MCGUINNESS

10 MR McGUINNESS: Yes, sir, thank you. Unfortunately, we have

11 not been afforded the opportunity to see any of the

12 documentation, either the letter from the Inquiry of

13 18 September -- nor have we had the opportunity to

14 consider any of the submissions made, and that leads

15 inevitably to the situation where I haven't had the

16 opportunity to take any instructions from

17 Sir Ronnie Flanagan.

18 So at this stage, Mr Chairman, I would like to

19 reserve any position that we may take --

20 THE CHAIRMAN: It might assist us, and it would assist you,

21 if any submissions that you have to make having heard

22 what you have heard this afternoon, you could put in

23 writing and send to us as soon as reasonably

24 practicable.

25 MR McGUINNESS: Absolutely, sir. Certainly I did request





1 the documentation today, but it was indicated that it

2 wasn't felt appropriate that we have sight of any of the

3 submissions or of the letters. So that is a very

4 helpful indication, sir.

5 THE CHAIRMAN: Thank you. Mr McGuinness.

6 Is there anything you want to say at this stage,

7 Mr Phillips?


9 THE CHAIRMAN: Well, the Panel will carefully consider all

10 the submissions that have been made, in particular

11 bearing in mind almost the universality of it, the word

12 "flexibility".

13 In due course we will let everybody know what our

14 general views are on this subject. Thank you all very

15 much.

16 Tomorrow morning we are sitting at 9.30 am in order

17 to complete Mr Paul Donnelly's evidence. Thank you.

18 (4.52 pm)

19 (The Inquiry adjourned until 9.30 am the following day)











2 I N D E X

MR PAUL DONNELLY (affirmed) ...................... 1
Questions by MR PHILLIPS ..................... 1
Submissions by MR PHILLIPS ....................... 120
Submissions by MR HARVEY ......................... 123
Submissions by MR O'HARE ......................... 132
Submissions by MR GRIFFIN ........................ 135
Submissions by MR DONALDSON ...................... 142
Submissions by MR AIKEN .......................... 148
Submissions by ADVOCATE FOR THE .................. 157

13 Submissions by MR ROBINSON ....................... 165

14 Submissions by MR MCGUINNESS ..................... 165