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Case Management Hearing
Hearing: 16th October 2007
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ROSEMARY NELSON
PUBLIC INQUIRY
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SIR MICHAEL MORLAND
DAME VALERIE STRACHAN
SIR ANTHONY BURDEN
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held at:
Interpoint
20-24 York Street
Belfast
County Antrim
on Tuesday, 16th October 2007
commencing at 10.00 am
Procedural Hearing
Representation:
Counsel to the Inquiry
Mr R Phillips QC, Mr M Savill, Mr P Skelton
Instructed by the Solicitor the Inquiry
For Mr Nelson
Mr C Harvey
Instructed by Messrs P J McGrory & Co
For Mrs Magee
Mr J O'Hare
Instructed by Messrs J G O’Hare & Co
For the Northern Ireland Office (NIO)
Mr N Hanna QC, Mr P Lewis
Instructed by the Crown Solicitor
For the Murder Investigation Team (MIT)
Mr M Egan QC
Instructed by Messrs Payne Hicks Beach
For the Police Service of Northern Ireland (PSNI)
Mr S Doran, Ms D Creen
Instructed by Solicitors for the PSNI
For the Ministry of Defence (MOD)
Mr N Moss
Instructed by Solicitors for the MOD
For the Security Service
Mr J Swift
Instructed by Solicitor for the Security Service
1 Tuesday, 16th October 2007
2 (10.00 am)
3 Statement by THE CHAIRMAN
4 THE CHAIRMAN: Good morning everyone.
5 The principal matter to be determined at this
6 hearing is to fix a date for the start of the Full
7 Hearings.
8 At the beginning of September, the Inquiry
9 circulated to the Full Participants' lawyers a proposed
10 agenda for this hearing. We invited them to make
11 comments on the proposed agenda and to put forward their
12 own suggestions for further matters to be discussed at
13 this hearing. None has been received. Accordingly, we
14 will follow the proposed agenda.
15 In a few minutes I will ask Counsel for the Inquiry,
16 Mr Rory Phillips, to give a report on the procedural
17 state of play across all areas of the Inquiry's work, so
18 that all present will understand the extent and range of
19 the investigation which my colleagues and I have
20 conducted pursuant to our terms of reference.
21 That will form the background to the next stage of
22 work, which will take us from here to the start of the
23 Full Hearings. Counsel will outline the Inquiry's plans
24 in relation to that work and set out the main stages in
25 the timetable leading up to the hearings.
1
1 As everyone present will understand, we would like
2 to start the Full Hearings as soon as we can next year.
3 We informed the Full Participants' lawyers last week
4 that we thought that the Full Hearings could and should
5 begin on Tuesday, 15th April. Of course, we wish it had
6 been possible to start much earlier than this. We hope
7 that Counsel's report on the work which has been
8 undertaken by the Inquiry team on our behalf
9 since January 2005 will help to explain why we have not
10 been able to achieve this.
11 At that stage, I will ask the advocates for the
12 Full Participants whether they have any observations to
13 make on the proposed timetable and start date. It is
14 worth mentioning at the outset that, as far as I am
15 aware, no adverse comment about the Inquiry's proposed
16 start date has been received in advance of this hearing.
17 In the light of any observations made and of any
18 other proposals advanced at that point, my colleagues
19 and I propose to determine the start date for the Full
20 Hearings, whether the 15th April or some other date, and
21 then conclude this hearing so that all those present
22 will leave Interpoint with that start date firmly in
23 mind.
24 Before handing over to Mr Phillips, I would like to
25 take this opportunity to make some more general
2
1 observations.
2 First, I would like to stress once more that the
3 Inquiry's process is an inquisitorial and not an
4 adversarial one. There are no parties in the Inquiry.
5 We have granted Full Participant status to various
6 persons and bodies, but they are not claimants or
7 defendants and this is not a trial. We do not expect
8 any lawyer who appears before us to be running a case.
9 The Full Participants and their lawyers are here to help
10 us in our Inquiry into the matters set out in our terms
11 of reference and developed in the list of issues which
12 we published in May 2005.
13 This is a fundamental point, which underpins all our
14 work and forms the bedrock of our procedures. I mention
15 it at this stage because from time to time during the
16 course of the Inquiry, it has seemed to the Panel that
17 some of those engaged by our work, both
18 Full Participants and others, have forgotten this basic
19 tenet. Interventions, whether in correspondence or at
20 our hearings, which are not designed to help us to find
21 out the truth are not, and will not be, welcome.
22 As I said in my opening statement delivered over two
23 and a half years ago at Craigavon, this is
24 an independent as well as a public inquiry. Decisions
25 as to the work of the Inquiry have been and will
3
1 continue to be ours and ours alone. We will consider
2 all of the material our team has gathered and come to
3 our own conclusions about it. We will not allow others
4 to deflect us from inquiring into matters which we deem
5 to be relevant to our work. Equally, we will resist
6 suggestions that we should divert energy, time and
7 resources into matters which we do not consider to be
8 relevant to our work. In short, we intend to maintain
9 a firm control over all our proceedings, both before and
10 during the Full Hearings.
11 I would like to illustrate this important point with
12 two examples. The first relates to witness statements.
13 We have asked over 350 people to provide statements to
14 our appointed solicitors, Eversheds. A very large
15 majority of those asked to help us in this way have
16 co-operated fully with Eversheds in the production of
17 statements. However, as we have noted in earlier
18 procedural updates on our website, some witnesses have
19 not co-operated in this way, either by refusing to
20 respond to the Inquiry's invitation or by failing to
21 deal promptly with draft statements, which has led to
22 unacceptable delays.
23 We would urge everyone approached to give evidence
24 to the Inquiry to assist us by agreeing to be
25 interviewed and by co-operating fully with Eversheds in
4
1 the interviewing and drafting process. For our part, we
2 will do everything we can to ensure that any such
3 failures to co-operate do not undermine our work or
4 deflect us from our task. Witnesses who elect not to
5 give a statement to us may find themselves summoned to
6 give evidence at the Full Hearings, pursuant to our
7 statutory powers. Their evidence will then be obtained
8 in public, through questions by Counsel to the Inquiry.
9 We have already announced that unacceptable delays in
10 finalising drafts may lead to the statements being
11 treated by us as final and relied upon. In addition, if
12 we take the view that a witness has failed to deal with
13 relevant matters in his or her statement, it is likely
14 that these deficiencies will lead to the witness being
15 called to give evidence at the Full Hearings, so that
16 the full picture may be established.
17 We hope there will be few cases in which this is
18 necessary, because, as we have made clear since the
19 outset of our work, we wish to hear evidence at the Full
20 Hearings only from those witnesses from whom oral
21 evidence is really necessary for us to complete our
22 work. As I put it in my opening statement, "These are
23 likely to be people at the heart of the matters we must
24 investigate, those whose evidence is both material and
25 contested and those who may be the subject of
5
1 criticism". This is one way in which we intend to keep
2 the Full Hearings as efficient and focused as we can.
3 It is not yet possible to assess how many witnesses
4 will be called to give evidence at the Full Hearings.
5 We expect it to be a minority of the 350 from whom we
6 have requested statements. However, we will, of course,
7 consider and take into account all of the statements we
8 receive, whether or not the maker is called to give oral
9 evidence at the Full Hearings.
10 The second example I propose to mention briefly
11 concerns the disclosure of documents. As Mr Phillips
12 will explain in more detail in a moment, we have
13 gathered in and considered many tens of thousands of
14 documents in the course of our work. In general, we
15 have been satisfied with the level of assistance and
16 co-operation we have received from document holders.
17 Where possible, we have resolved difficulties or dealt
18 with delays by discussion and in correspondence rather
19 than by resort to our statutory powers. But, as and
20 when it becomes clear that further material must be
21 considered or where it appears there has been incomplete
22 disclosure, in any area, we will not hesitate to act.
23 In the remaining time before the Full Hearings, we
24 do not wish our team's time and resources to be taken up
25 by disclosure disputes. However, any person or
6
1 organisation holding undisclosed material of relevance
2 to our work would be well-advised to disclose it now.
3 I say that because the failure to produce material to us
4 will not divert us from considering the material we do
5 have and drawing from it whatever inferences seem
6 appropriate. We will not allow any gaps in the record
7 or other deficiencies in the disclosed material to
8 hinder us in our work.
9 Although Mr Phillips will be covering all of the
10 Inquiry's work to date in his report, I would like at
11 this stage to mention the question of anonymity, because
12 it is an area of our work in which the Panel has been
13 heavily engaged for many months.
14 The Inquiry first sought applications for anonymity
15 in the summer of last year. The Panel considered them
16 and made provisional rulings in November. A hearing,
17 attended by representatives of the Full Participants and
18 the major applicant groups, was held in January of this
19 year for submissions to be made on those provisional
20 rulings. That hearing was not open to the public, in
21 part because of the provisional nature of the rulings at
22 that stage and in part to ensure that the matters
23 discussed did not themselves vitiate any application
24 made.
25 Since then, there have been two important decisions
7
1 in the Robert Hamill Inquiry, in Re Officer L by the
2 Court of Appeal here in Northern Ireland and then by
3 the House of Lords at the end of July. The Panel's
4 consideration of the applications received was
5 suspended, pending the resolution of that litigation on
6 appeal.
7 The current position is as follows. The Panel has
8 received over 120 individual applications for anonymity.
9 Each one is being considered individually by the Panel
10 on the basis of the material supplied to the Inquiry and
11 the submissions made to it at the hearings in January.
12 As all applicants are aware, the Panel will follow the
13 approach of Lord Carswell in the Re Officer L case in
14 reaching its final decision.
15 The Panel has sought further information in relation
16 to a number of applications and a good deal of that
17 material is still awaited. Although we have made
18 a considerable amount of progress with our work in
19 relation to anonymity, it is not at this stage possible
20 to say when the final decisions will be ready for
21 release to applicants and, so far as appropriate, to the
22 Full Participants, but we think it will be before the
23 end of this year. If and when we consider it would
24 assist us in relation to any application to have
25 a further oral hearing, we will take steps to arrange
8
1 one. At present, however, given the substantial amount
2 of material we have received and the assistance given to
3 us at the hearing in January, we think that unlikely.
4 I should also mention that many of the applications
5 made to us are for anonymity and screening. In such
6 cases, we propose to deal with both matters in our
7 rulings. Of course, any order for screening would only
8 take effect in relation to witnesses who are called to
9 give oral evidence at the Full Hearings.
10 This leads me to say a word about judicial review.
11 We are conscious of the fact that there have already
12 been a number of judicial review applications made in
13 relation to anonymity and other decisions in the
14 Robert Hamill and Billy Wright Inquiries. First
15 instance decisions in such litigation have been appealed
16 to the Court of Appeal and above.
17 So far as this Inquiry is concerned, there has, to
18 date, been no such ancillary litigation and it is our
19 hope there will be none during the remainder of our
20 work. It is important to stress, however, that the
21 Panel will not permit applications for judicial review
22 to impede our work. That work can only be advanced
23 within the context of the Inquiry and not by litigation
24 elsewhere. It will be hard to convince us that any such
25 application is made in order to help us in our search
9
1 for the truth concerning the murder of Rosemary Nelson.
2 I would like, finally, to return to the
3 inquisitorial nature of our process. In an inquiry
4 conducted in this way, it is inevitable that the vast
5 bulk of the work is conducted by the Inquiry team.
6 However, as we approach the Full Hearings, it is vital
7 that all those who are affected by our work, whether
8 Full Participants or others, should assist us and our
9 team as far as they can. This means co-operating with
10 our team in the preparation of those hearings. It means
11 devoting adequate resources to those tasks required of
12 others by the Inquiry and it means undertaking those
13 tasks efficiently and effectively. In that way, we will
14 succeed in delivering adequately-prepared and
15 well-managed hearings next year.
16 I intend to make some brief observations about the
17 conduct of the Full Hearings themselves, but I shall do
18 that at the end of this hearing, when the start date has
19 been determined.
20 I shall now ask Counsel for the Inquiry to report on
21 the work done to date.
22 Mr Phillips.
23 Report by MR PHILLIPS
24 MR PHILLIPS: Sir, you have asked me to give a report on all
25 of our work. I will try and do that as briefly as
10
1 I can, although, as you will understand, there is
2 a great deal of ground to cover.
3 It might help to establish a few general points at
4 the outset. The work which I describe has been done by
5 you and your colleagues, by the Inquiry's own team of
6 lawyers and others, by Eversheds, the firm of solicitors
7 you appointed to gather in witness statements, and by
8 Mr Robert Ayling and his team of former police officers
9 who have been considering the question of whether the
10 murder investigation was conducted with due diligence.
11 All of that work has been undertaken so that you and
12 your colleagues may discharge your duty to inquire into
13 the matters set out in your terms of reference and
14 identified in more detail in the list of issues which we
15 published in May 2005.
16 That document and all of the Inquiry's key
17 documents, including our Procedures Document, have been
18 published on our website.
19 We have also placed there a series of procedural
20 updates in which our progress has been charted over the
21 months and years since work started in earnest
22 in January 2005.
23 As you have already observed, the context in which
24 all of this work has been done is that of
25 an inquisitorial process. In such a process, it is
11
1 inevitable that the Inquiry team shoulders the burden of
2 the work. The Inquiry has gathered in, considered and
3 collated huge numbers of documents. It has taken
4 responsibility for the production of witness statements,
5 as it has for the production of the files of relevant
6 material prepared for use at the Full Hearings.
7 Another consequences of the inquisitorial nature of
8 our process is that in doing all of this work on your
9 behalf, we take no side. Our role is to search out,
10 order, analyse and produce for you the material and
11 evidence which relates to the matters you wish to
12 consider. We have been mindful of the Inquiry's
13 responsibility to act fairly in regard to all of those
14 affected by its work.
15 That approach is, I would suggest, particularly
16 important given the political background to the matters
17 encompassed by your terms of reference and the
18 controversy and sensitivity engendered over the years
19 since Rosemary Nelson's murder by some of the issues
20 which it has been our task to investigate on your
21 behalf. Our approach has, in many areas, been
22 a cautious one. We take the view that it has been
23 a properly cautious approach given the nature of the
24 Inquiry's process and of our role in that process.
25 There can be no doubt, however, that our progress
12
1 has been slower than we might have wished as a result of
2 the need to ensure at all times that we are acting
3 fairly and properly and with these responsibilities to
4 the fore. Much time, effort and energy has been
5 devoted, for example, to the difficult question of how
6 the very serious matters which lie at the heart of this
7 Inquiry -- namely, the possibility that Government
8 agencies or others might have been to some extent
9 involved with, complicit in or responsible for the
10 murder of Rosemary Nelson -- can fairly be examined in
11 public hearings.
12 Other responsibilities have also had a significant
13 impact on our work. For example, you and your
14 colleagues have, rightly, been concerned that no one
15 should be put at risk as a result of the work of the
16 Inquiry and have acknowledged your obligation under
17 Article 2 of the European Convention on Human Rights.
18 You have already mentioned the very substantial
19 amount of work which has been done on anonymity. I am
20 certainly not aware of any case or trial in which so
21 many applications have been made. The implications for
22 the Inquiry of the number of applications, together with
23 the changes in the applicable law which have taken place
24 since you and your colleagues first began to consider
25 the question, cannot easily be overstated. Nor have the
13
1 consequences been limited to diversion of energy and
2 resources.
3 We have, of course, sought to minimise the
4 disruption by inserting provisional ciphers in the
5 Part 1 Bundle files which we distributed to the
6 Full Participants' lawyers in May and June this year,
7 and in the witness statements and exhibits which we
8 distributed to them in September. There will, however,
9 be further practical implications, when final decisions
10 are reached and the release and the necessary and
11 consequential adjustments to those files and that
12 material have to be made.
13 The final point that I would like to stress before
14 turning to the individual areas of our work is the
15 question of scale. The range of issues encompassed by
16 your terms of reference is very wide indeed. In
17 addition to considering the very serious issues
18 concerning the murder of Rosemary Nelson which are
19 central to the Inquiry, the terms of reference require
20 you to consider also whether the murder investigation
21 itself was conducted with due diligence, whether that
22 investigation was obstructed or whether attempts were
23 made to do so.
24 The full breadth of the issues under investigation
25 can be gleaned from the 29 issues set out in the list of
14
1 issues which I have already mentioned. Starting with
2 the question of whether Rosemary Nelson's work created
3 conflict with the RUC (now PSNI), the NIO, the Army or
4 other state agency. They go on to deal with the extent
5 to which those bodies were aware of threats to her in
6 the period before her murder. They cover the complaints
7 made by or on behalf of her and her clients of her
8 alleged mistreatment or abuse by police officers and how
9 those complaints were investigated. They raise the
10 question of what was known to those bodies about threats
11 to her safety, and whether her safety or the level of
12 risk to her was assessed and with what results. There
13 is then the question of what material relevant to her
14 personal safety they had or which was available to them
15 before her murder.
16 Next, a number of questions have been formulated in
17 relation to the murder. They touch on the surrounding
18 circumstances and go on to deal with whether the murder
19 was facilitated by the acts or omissions of the RUC (as
20 was), the NIO, the Army or other state agency. There
21 are then questions regarding the quality of the
22 investigation itself and whether it was obstructed,
23 which I have already mentioned. Finally, there are more
24 general questions about systems, structures and
25 procedures which look to the future and to possible
15
1 recommendations.
2 Unsurprisingly, therefore, in the light of that list
3 of issues, the amount of material which has been
4 disclosed to and sought out by the Inquiry has been
5 vast. Many people and organisations have disclosed
6 material. However, one example may perhaps suffice to
7 illustrate the scope. The murder investigation itself
8 continued for a number of years and generated a huge
9 record, including over 5,000 statements. That material
10 and all of the other disclosure to the Inquiry,
11 amounting in total to many tens of thousands of
12 documents and hundreds of thousands of pages, has had to
13 be considered, sifted and analysed in order to identify
14 that portion of it which truly pertains to the issues in
15 the Inquiry.
16 I now propose to outline the work which has been
17 done on the preparation of files of documents for use at
18 the Full Hearings and they will make up what we call the
19 Inquiry Bundle. It has been convenient to divide the
20 Bundle into three parts and it may assist those present
21 if I were to describe the contents of each part in
22 a little more detail.
23 The first part covers the majority of the issues in
24 our list of issues, other than those relating to the
25 murder investigation, and, as I will explain, will also
16
1 make up the majority of the files in the Inquiry Bundle.
2 A large majority of the witness statements sought by the
3 Inquiry have been and will be directed to the issues
4 covered in the Part 1 Bundle. It covers the questions
5 which I have already mentioned as to Rosemary Nelson's
6 safety and, in particular, as to which persons or bodies
7 knew what about threats to her, in particular from 1997
8 to the time of her murder in March 1999. It also
9 contains the material generated during the course of the
10 investigation of the many complaints of mistreatment and
11 abuse made by her, on her behalf or by her clients which
12 were investigated, mostly by the RUC, in that period.
13 There is a section dealing with her work for the
14 Garvaghy Road Residents Coalition and the investigation
15 of complaints which arose from the events of July 1997
16 at Drumcree. The final section contains miscellaneous
17 material, including media comment, transcripts of
18 programmes or documentaries about her and some generic
19 material on the question of the alleged intimidation of
20 defence lawyers in Northern Ireland.
21 The second part of the Bundle, consisting of
22 intelligence-related material, will deal with a number
23 of issues in the list of issues. These documents are in
24 very large part sensitive or highly sensitive, and it is
25 this characteristic which has led to them being grouped
17
1 together, rather than any particular subject matter.
2 This is likely to be a much smaller part of the Bundle,
3 consisting of perhaps a dozen files.
4 The final part of the Bundle, Part 3, will be
5 concerned principally with the murder investigation.
6 Most of the material consists of the documents which
7 will accompany and support the report on whether the
8 investigation was carried out with due diligence, which
9 has been compiled by Robert Ayling. In addition, there
10 is material going to three further areas of fact.
11 First, to the question of whether the murder
12 investigation was obstructed or whether attempts were
13 made to do so. Secondly, there will be material on the
14 question of security force activity around
15 Rosemary Nelson's house in the period just prior to the
16 murder. Finally, there is some material relating to the
17 murder scene itself and the immediate aftermath of the
18 murder. These last two topics were investigated in
19 detail by the Murder Investigation Team and documents
20 relating to them have been placed in Part 3 for that
21 reason.
22 With those definitions in mind, I can turn to the
23 state of play in relation to each part of the Bundle
24 before looking briefly at the question of witness
25 statements.
18
1 The Part 1 Bundle currently contains 60 files of
2 documents. Once the Inquiry team had put together
3 a draft Bundle, a process of consultation was begun,
4 in September last year. During the process, the
5 providers, authors and recipients of every one of the
6 6,000 or so documents, amounting to some 17,000 pages,
7 were consulted on the question of whether any sensitive
8 redaction to the documents was in their view required.
9 The Inquiry's position was, and remains, that all the
10 documents in this category should be made public, in the
11 absence of good argument to the contrary. Over
12 100 persons and organisations were consulted.
13 Regrettably, not all responded promptly to the Inquiry's
14 request for assistance. Some did not respond at all.
15 Only 13 of the consultees raised questions of
16 substance, which were then considered by the Inquiry
17 team and, where necessary, the Panel, so that decisions
18 on the treatment of documents could be made.
19 A second consultation for further material followed
20 in February this year. 35 consultees were asked to
21 consider material and about half of them raised issues.
22 Despite a great deal of work by the Inquiry team and
23 by others, some of these issues of sensitivity and
24 redaction remain to be resolved. It is hoped, however,
25 that this will happen in the very near future.
19
1 The Inquiry has also made redactions to the
2 Part 1 Bundle in order to remove irrelevant personal
3 information in accordance with its published procedures,
4 to ensure that unnecessary personal information,
5 including the names of most non-witnesses, did not
6 appear in the Bundle.
7 The final process to which this part of the Bundle
8 has been subjected is the insertion of provisional
9 ciphers, which I have already mentioned. The
10 Re Officer L litigation led to the suspension of the
11 Panel's consideration of anonymity applications, as you
12 have explained. However, the Inquiry was keen to
13 release the Part 1 Bundle to Full Participants as soon
14 as possible. So the provisional ciphers were inserted
15 into the Bundle to preserve the position, pending final
16 rulings on anonymity.
17 The Part 1 Bundle was released under embargo to the
18 Full Participants' lawyers in May and June this year.
19 During the subsequent months, the legal representatives
20 have commented helpfully on inconsistencies or errors in
21 some documents, the Inquiry has itself identified some,
22 and has also conducted yet further checks and supplied
23 corrected pages to the lawyers. The embargo was imposed
24 precisely to allow a period of final correction to the
25 Bundle before its full release to Full Participants. It
20
1 has proved his worth over the last months and the
2 Inquiry hopes to lift it in the near future.
3 As far as future work on this part of the Bundle is
4 concerned, in addition to the points I have mentioned,
5 we intend to do some tidying up and, where possible, to
6 replace poor copies. Inevitably, there will, as in any
7 case, be further additions to the Bundle. Two examples
8 spring to mind. First, we may wish to add Part 1
9 material which has been disclosed us to after the
10 compilation of the Bundle. Secondly, there is a body of
11 video and DVD material on Part 1 issues which we will
12 issue to the Full Participants and which belongs in this
13 part of the Bundle.
14 There is also work to be done in making it more
15 user-friendly, for example by inserting dividers and
16 producing more detailed indexes. In due course, we will
17 supply an electronic copy of the Bundle to the
18 Full Participants, though it may well be sensible to
19 delay this until after the final anonymity decisions, so
20 that the electronic copy is as "final" as possible.
21 The last thing I would like to say on the
22 Part 1 Bundle is this. We also plan to issue some eight
23 files of further material, material which we believe to
24 be relevant to the issues, but which we have decided
25 does not merit inclusion in the Part 1 Bundle. We hope
21
1 that that material will be helpful to Full Participants
2 in their preparation for the Full Hearings.
3 Sir, I can deal with the other two parts of the
4 Bundle more briefly, first, because although at least as
5 much work has been done by the Inquiry team and others
6 on these parts, there is at present much less to show
7 for it and, secondly, because, given the nature of some
8 the material, it simply would not be appropriate to go
9 into great detail at this stage.
10 In relation to the Part 2 Bundle of intelligence
11 material, the Inquiry team has considered thousands of
12 documents from more than 15 different organisations.
13 About half of those documents originate with the PSNI.
14 Substantial quantities of material from the
15 Security Service, the MoD and the Cabinet Office have
16 also been reviewed.
17 It is right to record that the process of disclosure
18 has, in some cases and at some times, been slower than
19 the Inquiry would have wished. The Inquiry has spent
20 a considerable amount of time using all of the methods
21 at its disposal to ensure that relevant material was
22 disclosed in a timely fashion. Although disclosure has
23 continued to be made until as recently as last month,
24 the current situation is that there are no significant
25 disclosure disputes on foot and unresolved.
22
1 The Inquiry team has analysed the material disclosed
2 and from it has selected a core collection of material
3 amounting, as I have said, to about a dozen files which
4 will make up the Part 2 Bundle. Drafts has been
5 supplied to the providers and discussions have taken
6 place over the last months so as to enable this part of
7 the Bundle to be released to the Full Participants. For
8 obvious reasons, this is a complicated and detailed
9 process.
10 The Article 2 responsibilities, which I have already
11 mentioned, are at the fore here. Questions of national
12 security and future operational capability may also be
13 said to arise in the context of this part of the bundle.
14 The same is true in respect of some of the Part 3
15 material, which has also had to be approached with
16 appropriate care. The question of relevance is also
17 important in that context. Given the sensitivity of
18 some of this material, the Inquiry has been prepared to
19 redact parts of documents on the basis that they are not
20 relevant to our work, provided, of course, that the
21 sense of the document is not affected and its full context
22 remains clear.
23 Turning to the third and last part of the Bundle,
24 Part 3 consists, in the main, as I have said, of
25 material which will accompany Mr Ayling's report.
23
1 Mr Ayling, who was formerly the Acting Chief Constable
2 of Kent, was appointed by the Inquiry in the summer of
3 2005 to prepare a report to the Inquiry on the question
4 of whether the murder investigation was carried out with
5 due diligence. He assembled a small team of experienced
6 former police officers, none of whom had served in the
7 RUC/PSNI. They began to consider the material generated
8 by the investigation in the October of that year, with
9 a view to preparing a draft report.
10 At the beginning of February this year, their draft
11 was sent to the original Murder Investigation Team,
12 represented by the leader of that investigation,
13 Mr Colin Port, for their review and comment. Their
14 response to the draft report was received at the end of
15 last month and the beginning of this month.
16 In addition, the Ayling team and the Inquiry have
17 put together the files of material relating to the draft
18 report and have subjected those files to the redaction
19 and other processes I have already mentioned. The
20 contents of the Bundle will not be finalised until the
21 report is itself final, but it seems likely that this
22 part of the Bundle, which, as I have said, also covers
23 the issue of obstruction, of security force activity
24 over the weekend before the murder and of the murder
25 scene itself, will consist of about 35 files, divided up
24
1 between the chapters of the report to which they relate.
2 As far as the question of the sensitivity of this
3 material is concerned, the Inquiry has asked the PSNI to
4 consider the finalised report and accompanying documents
5 from the point of view of possible Public Interest
6 Immunity and Article 2 concerns, supplying a copy of the
7 draft Bundle to the PSNI in June this year for that
8 purpose. I will turn to this question in a moment when
9 considering the next stage of our work leading up to the
10 Full Hearings. In addition, providers of documents have
11 been consulted in relation to their own material,
12 although most of the material in the Part 3 Bundle
13 emanates, of course, from the Murder Investigation Team
14 itself.
15 The final topic I would like to mention is witness
16 statements. From its work on the material disclosed to
17 it, the Inquiry has drawn up lists of witnesses
18 totalling, as you said, about 350 for Eversheds, the
19 Inquiry's appointed solicitors, to interview on the
20 Inquiry's behalf. The witness statement process
21 includes the following significant stages: finding
22 witnesses, dealing with the appointment by them of
23 lawyers, collating documents for the interviews,
24 preparing for the interviews, conducting the interviews,
25 preparing draft statements, revising the drafts in the
25
1 light of comments by witnesses and their lawyers, and
2 then finalising and signing off the statements. Much,
3 but not all, of that work has been undertaken by
4 Eversheds.
5 However, once received, the witness statements and
6 their exhibits have to be subjected to the Inquiry's
7 redaction and other processes. Where documents
8 exhibited to statements already appear in the
9 Part 1 Bundle, we have sought to avoid duplication by
10 not preparing exhibit files, but have inserted
11 cross-references to existing page numbers in the Bundle.
12 In this way we hope to keep the size of the Bundle at
13 least manageable. Where documents have been referred to
14 by witnesses but have not appeared in the Bundle, then,
15 if relevant and significant, they have been added to the
16 Bundle and, if not, they have been placed in files
17 specifically devoted to additional material. In both
18 cases, there has been consultation with providers to
19 deal with possible questions of sensitivity.
20 As can perhaps be imagined from my description,
21 these processes take time and there is inevitably
22 a delay of some months between the Inquiry's receipt of
23 a final signed statement and it being ready for
24 distribution to Full Participants. We have done and are
25 doing what we can to speed up this process at every
26
1 stage but, as you have indicated in your opening
2 remarks, we will continue to be dependent to
3 a significant extent on reasonable levels of
4 co-operation and help from others in this area of work.
5 As far as distribution of statements is concerned,
6 we sent out the first batch of 62 on 6th September this
7 year. We intend to release further, more substantial
8 batches of about 80 statements each in mid-November and
9 late January next year.
10 For the purposes of considering progress on witness
11 statements, it is, I think, helpful to put them into
12 categories equating to the three parts of the Bundle.
13 By this, I mean it is possible to describe a statement
14 as a Part 1, Part 2 or Part 3 statement. Of course, the
15 reality is more complicated than that, because some
16 witnesses deal with a range of issues. Thus, a witness
17 might give evidence as to threats received by
18 Rosemary Nelson of which he or she was aware. These are
19 Part 1 issues. However, the witness might also have
20 been at the scene in the immediate aftermath of the
21 murder, and her statement might therefore deal with
22 those Part 3 issues. To avoid duplication of numbers,
23 witnesses have been characterised as belonging to that
24 part to which their evidence most obviously and closely
25 relates. For those reasons, the numbers we use -- the
27
1 numbers I am about to use -- are indicative rather than
2 precise.
3 However, using this rough characterisation, there
4 are about 240 Part 1 witnesses. It can therefore be
5 seen that they make up a substantial majority of the
6 witnesses who have been asked to give evidence, which,
7 as you mentioned, is about 350. The remainder of the
8 witnesses are shared between Parts 2 and 3.
9 As for the Part 3 witness statements, it is also
10 worth pointing out that a very substantial majority are,
11 or will be, for the most part, concerned with limited
12 issues of fact, for example, relating to the murder
13 scene or to security force activity on the weekend of
14 the murder.
15 So far as due diligence is concerned, the Inquiry
16 has taken the view that it would be more appropriate for
17 the Murder Investigation Team to address the contents of
18 Mr Ayling's report when finalised in submissions rather
19 than in witness statements. The Murder Investigation
20 Team's lawyers have indicated that they may wish to
21 adduce some evidence to support their submissions, but
22 this evidence will not be obtained by interviews
23 conducted on behalf of the Inquiry. In any event,
24 the Inquiry expects to call the most senior officers
25 responsible for the murder investigation to answer
28
1 questions at the Full Hearings based on the Ayling
2 report. The Inquiry's solicitors will, however,
3 interview those individuals in relation to the question
4 of whether their investigation was obstructed, in order
5 to obtain statements on that important issue of fact.
6 Sir, that is a survey of all the work we have done.
7 I was now proposing to look, in much less detail, you
8 will perhaps be relieved to here, to the future and what
9 we propose so far as the timetable leading to the Full
10 Hearings is concerned.
11 THE CHAIRMAN: Thank you.
12 MR PHILLIPS: So far as the next stage of our work is
13 concerned, in relation to, first, to the Part 1 Bundle,
14 I think I have already covered the future work that we
15 envisage. To recap on the statements, we released 62 in
16 the early part of September and expect to release two
17 more batches of about 80 in mid-November and
18 late January next year. All of them are Part 1
19 statements, on the basis of the characterisation
20 I mentioned a minute or two ago. So it follows, on that
21 basis, that just over 220 of the 240 or so statements in
22 this category dealing with the Part 1 issues, which, as
23 I have explained, form the bulk of the issues on our
24 list of issues, will have been sent out by that time.
25 Of course, by that point also the Full Participants'
29
1 lawyers will have had the Part 1 documents for
2 seven months or more. From the outset of our work, we
3 have made it clear that we would notify
4 Full Participants of the Inquiry's decisions as to
5 whether witnesses should be called to give evidence at
6 the Full Hearings. Just as we are releasing witness
7 statements in batches, so we intend to notify, in
8 relation to batches of witnesses, the Inquiry's
9 decisions on this topic, starting early next month and
10 continuing thereafter as statements are sent out.
11 In relation to the Part 2 Bundle, I have described
12 the discussions which have taken place over a number of
13 months with the relevant providers. Based on our
14 experience to date, we believe that all sections of this
15 part of the Bundle will be ready for release to the
16 Full Participants by late January. Of course, if it
17 proves possible to release individual sections before
18 that, we will do so. In relation to the Part 2
19 statements, we expect the vast bulk of them to be ready
20 for distribution to the Full Participants by the end
21 of February next year. Of course those statements cover
22 intelligence-related issues. The period from now to the
23 end of February allows for discussion between the
24 Inquiry, the witnesses' representatives and the relevant
25 Full Participants in order to resolve, so far as is
30
1 possible, questions of sensitivity in relation to those
2 statements, so as to enable them to be released to all
3 Full Participants.
4 So far as Part 3 is concerned, I would like first to
5 deal with the Ayling Report. Mr Ayling and his team
6 intend to finalise the report in sections in
7 a continuing process, leading to a completion date in
8 mid-December. The Inquiry hopes to release the
9 finalised sections of the report and the accompanying
10 parts of the Part 3 Bundle, as and when they are ready,
11 to the PSNI for them to consider, in collaboration with
12 the Murder Investigation Team, from the point of view of
13 possible PII or Article 2 concerns, as I have explained.
14 The Inquiry hopes that this staged release process will
15 begin in mid-November. We believe we will be in
16 a position to release the report, the accompanying
17 Part 3 Bundle and the Part 3 witness statements to the
18 Full Participants about the end of February. In
19 relation to some of that material, the same observations
20 apply that I made in relation to the process of dealing
21 with sensitive issues.
22 Again, in relation to this work, as in relation to
23 all our work, if we are in a position to release
24 material earlier, we will of course do so. In relation
25 to Part 3 particularly, I have in mind some of those
31
1 statements which, as I mentioned, deal with relatively
2 limited factual issues.
3 Sir, on the basis of all of that information, it
4 seems to us that the Full Hearings could start after the
5 Easter break, and the date we propose is Tuesday,
6 15th April. It may be, of course, that some witness
7 statements have yet to be issued by that stage. There
8 may be some loose ends here or there, as in most cases.
9 However, the view we take is that, by that time, there
10 will be enough material and perhaps, more importantly,
11 enough significant material to open all of the issues
12 which you will wish to consider at the Full Hearings.
13 When assessing when it would be right to start, you
14 may think it appropriate to consider the following
15 points. By mid-April, the Full Participants' lawyers
16 will have had the Part 1 Bundle for ten months. They
17 will have had the Part 1 statements, a huge majority of
18 them, for a number of months, with the first batch of 60
19 being held since September. We propose that the primary
20 focus of the evidence in the first part of the Full
21 Hearings should be on those Part 1 issues. That is not
22 to say that no evidence on other parts will be called.
23 I have already made clear that some statements deal with
24 issues in more than one part, but the focus that we
25 propose is on the Part 1 issues. What we can also say
32
1 at this stage is that no evidence on Part 3
2 due diligence issues will be called before the summer
3 break. By then, those with an interest in those matters
4 will have had all of the material for six months or
5 more.
6 Sir, on the basis of this proposed timetable, and
7 bearing in mind the inquisitorial nature of the process
8 whereby the main burden of preparation will fall on the
9 Inquiry team, we believe that it would be right to start
10 on 15th April.
11 THE CHAIRMAN: Thank you very much.
12 Mr Harvey, I am going to ask you and then, in
13 sequence, each counsel for the various
14 Full Participants, first, to address the Panel, if they
15 wish, and make any submissions as to the proposed start
16 date for the Full Oral Hearing of Tuesday, 15th April.
17 On that matter, Mr Harvey, have you anything you wish to
18 say to us?
19 MR C HARVEY: Yes, Chairman, I am obliged for the time. We
20 have no observations to make at this stage in relation
21 to the timetable that has been set out very helpfully by
22 Mr Phillips this morning, other than to say that we are,
23 of course, anxious to co-operate as far as we can with
24 the Inquiry in getting the Inquiry started on
25 15th April.
33
1 THE CHAIRMAN: Thank you very much, Mr Harvey.
2 Mr O'Hare?
3 MR O'HARE: Yes, Mr Chairman. I am grateful to you again.
4 Very similarly, Mr Chairman, we would obviously welcome
5 the earliest possible start to the works of the Inquiry
6 at this stage in the public hearings, and certainly we
7 have no adverse comment to make in relation to the
8 proposed start date.
9 THE CHAIRMAN: Thank you.
10 Mr Hanna?
11 MR HANNA: Sir, as far as the Northern Ireland Office is
12 concerned, we have no difficulty whatever with the
13 proposed start date and we are content with it.
14 THE CHAIRMAN: Thank you very much.
15 Mr Egan?
16 MR EGAN: Sir, on behalf of the Murder Investigation Team we
17 have nothing to submit.
18 THE CHAIRMAN: Thank you.
19 Mr Doran?
20 MR DORAN: Yes, sir. In relation to the PSNI's position, we
21 have no submissions to make in respect of the proposed
22 start date, and the PSNI will continue to co-operate as
23 fully as possible with the Inquiry team.
24 THE CHAIRMAN: Thank you very much.
25 Mr Moss?
34
1 MR MOSS: Sir, the Ministry of Defence sees no difficulty
2 with that starting date.
3 THE CHAIRMAN: Thank you.
4 Mr Swift?
5 MR SWIFT: Sir, the Security Service have no observations to
6 make in relation to the proposed start date.
7 THE CHAIRMAN: Thank you very much. I think it might be
8 convenient actually to adjourn a little earlier for
9 a mid-morning break, and if anybody has any submissions
10 to make on any of the matters raised either by myself or
11 Mr Phillips, or any other matter, I will again ask each
12 counsel in turn to do that after we have had a break.
13 The purpose of the break is mainly to ease the strain of
14 the stenographers. We will have a break of 20 minutes
15 and then resume.
16 (11.00 am)
17 (A short adjournment)
18
19 (11.25 am)
20 THE CHAIRMAN: We are grateful for the co-operation of all
21 parties, and there seems to be a general consensus, so
22 we have decided that the Full Oral Hearings will begin
23 on Tuesday, 15th April next year, and that date is set
24 in stone.
25 I will now ask each counsel for the Participants in
35
1 turn if they have any other matters they wish to raise
2 or any submissions to make.
3 Mr Harvey?
4 MR C HARVEY: Yes, Mr Chairman. No, I have no submissions
5 to make at this stage.
6 THE CHAIRMAN: Mr O'Hare?
7 MR O'HARE: No, Mr Chairman, I have no submissions to make.
8 THE CHAIRMAN: Mr Hanna?
9 MR O'HARE: No submissions, sir.
10 THE CHAIRMAN: Thank you.
11 Mr Egan?
12 MR EGAN: No thank you, sir.
13 THE CHAIRMAN: Mr Doran?
14 MR DORAN: No submissions to make, sir.
15 THE CHAIRMAN: Thank you.
16 Mr Moss?
17 Submissions by MR MOSS
18 MR MOSS: Sir, there had to be one. May I raise briefly
19 the matter of screening, if I may. You said in your
20 introductory comments, sir, that many of the
21 applications you had received for anonymity were in fact
22 applications for anonymity and screening. Sir, as you
23 may recall, that is not the case with the MoD because we
24 have simply, at this stage, made anonymity applications.
25 Sir, in June 2006, in our initial anonymity
36
1 application, again in December of 2006, and when I was
2 last before you in January of this year, sir, we made
3 clear that what we were doing was making purely
4 anonymity applications but there may need to be
5 screening applications at a later stage, so far as MoD
6 was concerned.
7 In the January hearings I sought to explain why that
8 approach was thought to be appropriate by MoD, and
9 necessary in the case of the MoD, and that was that the
10 MoD witnesses cover a very large range, an extensive
11 range, of different types of role, from those who
12 clearly would not require screening through to a number
13 of those who clearly would require screening.
14 So far as MoD witnesses are concerned, the decision
15 as to whether a screening application is appropriate
16 depends upon a close examination of a wide variety of
17 factors, such as: the nature of the Army work that they
18 were involved in at the time; work that they have done
19 for the Army subsequently; those who they may have come
20 into contact with during the course of their work; what
21 work, whether Army or civilian, they are currently
22 engaged in; where they live, whether in Great Britain or
23 here in Northern Ireland. And so on.
24 To make applications for more than 40 witnesses
25 involving that individual consideration would be very
37
1 resource intensive. It was for that reason that we have
2 always indicated, over the course of more than 18 months
3 now, that we would wish to make screening applications
4 once we knew at MoD which MoD witnesses were to be
5 called.
6 Sir, I raise that now just because I wish, on behalf
7 of my clients, to be entirely open about what our
8 intentions are as regards screening, as I believe we
9 have been throughout. I do not for one moment, sir,
10 believe this is going to imperil the timetable at all,
11 but I just wish to put a marker down, so far as MoD is
12 concerned, that once we know which witnesses are going
13 to be called to give oral evidence there may well, in
14 some individual cases, on a case-by-case basis, be
15 further screening applications at that stage for the MoD
16 witnesses.
17 THE CHAIRMAN: One way of dealing with it, Mr Moss, is for
18 the Panel to confidentially notify the
19 Ministry of Defence which witnesses we are considering,
20 provisionally, giving anonymity to, and then asking the
21 Ministry of Defence to notify us within 28 days whether
22 they wish also to apply for screening.
23 MR MOSS: Sir, that would be of great assistance.
24 THE CHAIRMAN: That should be plenty of time.
25 I see there is assent from your instructing
38
1 solicitors that that is the position.
2 MR MOSS: Sir, yes, that would be of great assistance. We
3 could then focus on the individuals that the Inquiry is
4 most interested in.
5 THE CHAIRMAN: Clearly, we have had in mind, when we have
6 considered any Ministry of Defence witnesses, the sort
7 of matters that you have alluded to already.
8 MR MOSS: Yes, sir, of course.
9 THE CHAIRMAN: Thank you, Mr Moss.
10 MR MOSS: Thank you, sir.
11 THE CHAIRMAN: Mr Swift, have you anything you wish to say?
12 MR SWIFT: Sir, no, I have no submissions to make.
13 THE CHAIRMAN: Thank you. Mr Phillips, is there anything
14 you wish to say about what Mr Moss has said?
15 Submissions by MR PHILLIPS
16 MR PHILLIPS: Sir, just this. That acts as a spur for all
17 of us to notify in relation to MoD, as of course in
18 relation to all witnesses, as soon as we can, the
19 Inquiry's decision as to whether individuals will be
20 called to give evidence at the Full Hearings.
21 THE CHAIRMAN: Yes. Thank you.
22 Before bringing this hearing to an end, I would like
23 to mention some points relating to the Full Oral
24 Hearings themselves. They will, I hope, indicate our
25 thinking on matters which we will set out in detail and
39
1 in writing nearer the start date.
2 First, the sitting hours. We intend to start our
3 hearings on Monday at 1.00 pm each week and then to sit
4 until 4.45 pm, with a break in the mid-afternoon, not
5 least to give the shorthand writers a much needed rest.
6 On Tuesday, Wednesday and Thursday we intend to start at
7 10.15 am, break off at 1 pm and then sit again from
8 2.00 pm until 4.45 pm, with similar breaks in the middle
9 of both sessions. On Fridays, we will sit from 10.15 am
10 until 1.00 pm, with a break in the middle of the
11 morning.
12 Shortly before the start date, we will issue
13 a timetable for the hearing, so as to enable all
14 concerned, and particularly witnesses, to plan ahead.
15 It is not yet possible to assess how long the Full
16 Hearings will last, but it is clear they will take some
17 months, even with goodwill on all sides and efficient
18 management of the timetable. We are all conscious of
19 the strain which long and continuous hearings can put on
20 those taking part. With that in mind, we plan to build
21 in regular breaks to the timetable.
22 We expect the hearings to continue until the early
23 part of July, and then to resume in early September. As
24 Mr Phillips has already explained, the primary focus of
25 the evidence in the first part of the Full Hearings will
40
1 be on the Part 1 issues. No evidence on the question of
2 due diligence in relation to the murder investigation
3 itself will be heard until after the summer break.
4 Finally, I would like to say a word about
5 questioning witnesses. As we made clear from the start
6 of our work, and in accordance with the inquisitorial
7 nature of our procedures, we expect the vast majority of
8 the questioning of witnesses called to give evidence at
9 the Full Hearings to be undertaken by our Counsel on our
10 behalf.
11 As far as the questioning itself is concerned, we
12 will issue a simple protocol for use at the Full
13 Hearings, whereby counsel for the Full Participants, or
14 for any witness granted the right to be represented,
15 will be required to provide suggested questions or lines
16 of inquiry in writing to our Counsel 48 hours before the
17 witness is called. Our Counsel will then endeavour to
18 address these questions or issues with the witness
19 during the evidence, where they consider it appropriate.
20 Where any other counsel considers that a matter
21 previously raised in writing has not been put to the
22 witness then, before the conclusion of that evidence
23 they should raise it with our Counsel. If, having
24 reconsidered the matter, our Counsel does not believe it
25 necessary or appropriate to put the point to the
41
1 witness, it will be open to the other counsel to apply
2 to us for permission to raise the issue with the
3 witness. Such cases will be the exception rather than
4 the rule. We do not intend to permit the Full Hearings
5 to be lengthened by adversarial, unnecessary or
6 repetitive questioning.
7 Where it seems to us that a witness who is called to
8 give evidence at the Full Oral Hearings may face
9 criticism in the course of the Inquiry's work, a letter
10 will be sent to the witness, outlining the issues which
11 are most likely to be raised in questioning. Of course,
12 it is likely that those who have already given witness
13 statements to Eversheds will have a good understanding
14 of the issues the Inquiry is likely to raise with them
15 at the Hearings. Such letters, sometimes called Salmon
16 letters, will not, of course, express the concluded or
17 even provisional views of the Panel, nor will they
18 constitute a prejudgment of the issues. They will
19 simply allow the witness to consider the matters to be
20 canvassed with him or her, and sufficient time and
21 adequate opportunity to prepare to deal with those
22 matters. We aim to send out such letters to relevant
23 witnesses not less than 14 days prior to them being
24 called. I should emphasise at this stage that there
25 will be many witnesses called to give evidence at Full
42
1 Hearings for whom such a letter would not be
2 appropriate.
3 Finally, I would like to thank everyone for
4 attending today on time. That concludes the business of
5 this hearing.
6 (11.40 am)
7 (The hearing concluded)
8
9
Statement by THE CHAIRMAN ........................ 1
10
Report by MR PHILLIPS ............................ 10
11
Submissions by MR MOSS ........................... 36
12
Submissions by MR PHILLIPS ....................... 39
13
14
15
16
17
18
19
20
21
22
23
24
25
43
