osemary Nelson - Tribunals of Inquiry (Evidence) Act 1921 - Robert Hamill - Prison Act (Northern Ireland) 1
ght to Life - Billy Wright - Inquiries Act 2005 - Legal Basis - Police (Northern Ireland) Act 1998 - Redactions
quiries Act 2005 - Participation - European Convention on Human Rights - The Weston Park Agreement an
ory Inquiries - Restriction Notices and Orders - Interim Reports - PSNI - Article 2 - Rosemary Nelson - Tribun
quiry (Evidence) Act 1921 - Robert Hamill - Prison Act (Northern Ireland) 1953 - The Right to Life - Billy Wr
quiries Act 2005 - Legal Basis - Police (Northern Ireland) Act 1998 - Redactions - Inquiries Act 2005 - Partic
uropean Convention on Human Rights - The Weston Park Agreement and the Cory Inquiries - Restriction N
nd Orders - Interim Reports - PSNI - Article 2 - Rosemary Nelson - Tribunals of Inquiry (Evidence) Act 1921 amill - Prison Act (Northern Ireland) 1953 - The Right to Life - Billy Wright - Inquiries Act 2005 - Legal Basis
orthern Ireland) Act 1998 - Redactions - Inquiries Act 2005 - Participation - European Convention on Hum
The Weston Park Agreement and the Cory Inquiries - Restriction Notices and Orders - Interim Reports - PSN
ticle 2 - Rosemary Nelson - Tribunals of Inquiry (Evidence) Act 1921 - Robert Hamill - Prison Act (Northern
953 - The Right to Life - Billy Wright - Inquiries Act 2005 - Legal Basis - Police (Northern Ireland) Act 1998 edactions - Inquiries Act 2005 - Participation - European Convention on Human Rights - The Weston Park A
nd the Cory Inquiries - Restriction Notices and Orders - Interim Reports - PSNI - Article 2 - Rosemary Nelson
ibunals of Inquiry (Evidence) Act 1921 - Robert Hamill - Prison Act (Northern Ireland) 1953 - The Right to L
right - Inquiries Act 2005 - Legal Basis - Police (Northern Ireland) Act 1998 - Redactions - Inquiries Act 200
articipation - European Convention on Human Rights - The Weston Park Agreement and the Cory Inquiries
estriction Notices and Orders - Interim Reports - PSNI - Article 2 - Rosemary Nelson - Tribunals of Inquiry (E
ct 1921 - Robert Hamill - Prison Act (Northern Ireland) 1953 - The Right to Life - Billy Wright - Inquiries Act
gal Basis - Police (Northern Ireland) Act 1998 - Redactions - Inquiries Act 2005 - Participation - European
onvention on Human Rights - The Weston Park Agreement and the Cory Inquiries - Restriction Notices and
terim Reports - PSNI - Article 2 - Rosemary Nelson - Tribunals of Inquiry (Evidence) Act 1921 - Robert Ham
ison Act (Northern Ireland) 1953 - The Right to Life - Billy Wright - Inquiries Act 2005 - Legal Basis - Police
orthern Ireland) Act 1998 - Redactions - Inquiries Act 2005 - Participation - European Convention on Hum
The Weston Park Agreement and the Cory Inquiries - Restriction Notices and Orders - Interim Reports - PSN
ticle 2 - Rosemary Nelson - Tribunals of Inquiry (Evidence) Act 1921 - Robert Hamill - Prison Act (Northern
953 - The Right to Life - Billy Wright - Inquiries Act 2005 - Legal Basis - Police (Northern Ireland) Act 1998 edactions - Inquiries Act 2005 - Participation - European Convention on Human Rights - The Weston Park
greement and the Cory Inquiries - Restriction Notices and Orders - Interim Reports - PSNI - Article 2 - Rose
elson - Tribunals of Inquiry (Evidence) Act 1921 - Robert Hamill - Prison Act (Northern Ireland) 1953 - The R
e - Billy Wright - Inquiries Act 2005 - Legal Basis - Police (Northern Ireland) Act 1998 - Redactions - Inquirie
005 - Participation - European Convention on Human Rights - The Weston Park Agreement and the Cory In
estriction Notices and Orders - Interim Reports - PSNI - Article 2 - Rosemary Nelson - Tribunals of Inquiry (E
ct 1921 - Robert Hamill - Prison Act (Northern Ireland) 1953 - The Right to Life - Billy Wright - Inquiries Act
gal Basis - Police (Northern Ireland) Act 1998 - Redactions - Inquiries Act 2005 - Participation - European
onvention on Human Rights - The Weston Park Agreement and the Cory Inquiries - Restriction Notices and
terim Reports - PSNI - Article 2 - Rosemary Nelson - Tribunals of Inquiry (Evidence) Act 1921 - Robert Ham
ison Act (Northern Ireland) 1953 - The Right to Life - Billy Wright - Inquiries Act 2005 - Legal Basis - Police
orthern Ireland) Act 1998 - Redactions - Inquiries Act 2005 - Participation - European Convention on Hum
The Weston Park Agreement and the Cory Inquiries - Restriction Notices and Orders - Interim Reports - PSN
ticle 2 - Rosemary Nelson - Tribunals of Inquiry (Evidence) Act 1921 - Robert Hamill - Prison Act (Northern
953 - The Right to Life - Billy Wright - Inquiries Act 2005 - Legal Basis - Police (Northern Ireland) Act 1998 -
Inquiries
Observation
Project
2008-2010
Report analysing the inquiries following
the recommendations of Peter Cory
July 2014
Inquiries Observation Project 2008-2010
Report analysing the inquiries following the recommendations of
Peter Cory
July 2014
1
Contents
Acknowledgements .......................................................................................................... 5
Executive Summary ......................................................................................................... 6
1.
Background................................................................................................................. 9
2.
Summary of Each Case ..........................................................................................11
Rosemary Nelson ..................................................................................................................... 11
Robert Hamill ............................................................................................................................ 13
Billy Wright ................................................................................................................................ 14
3.
Legal Basis for Establishment of the Inquiries .............................................16
Tribunals of Inquiry (Evidence) Act 1921 ...................................................................... 16
Prison Act (Northern Ireland) 1953.................................................................................. 17
Police (Northern Ireland) Act 1998................................................................................... 17
Inquiries Act 2005 ................................................................................................................... 18
The Weston Park Agreement and the Cory Inquiries ................................................. 20
4.
Procedures of the Inquiries ................................................................................23
Procedural Tools ...................................................................................................................... 23
Terms of Reference ........................................................................................................................... 23
Public Access ........................................................................................................................................ 24
Participation......................................................................................................................................... 26
Redactions............................................................................................................................................. 26
Use of Procedural Tools in the Inquiries ......................................................................... 26
Rosemary Nelson Inquiry ............................................................................................................... 26
Public access ......................................................................................................................................... 28
Participation ......................................................................................................................................... 30
Robert Hamill Inquiry ...................................................................................................................... 30
Participation ......................................................................................................................................... 33
Billy Wright Inquiry .......................................................................................................................... 33
Participation ......................................................................................................................................... 35
Powers Used under the Inquiries Act 2005 (Robert Hamill and Billy Wright
Inquiries) .................................................................................................................................... 36
Restriction Notices and Orders .................................................................................................... 36
Interim Reports .................................................................................................................................. 37
Referral to PSNI .................................................................................................................................. 38
Compulsion of Witnesses and Evidence ................................................................................... 38
5. Article 2 of the European Convention on Human Rights: The Right to Life
...............................................................................................................................................40
Introduction ............................................................................................................................... 40
Right to Life of Victims ........................................................................................................... 42
Right to life of victims as Applicable to the Rosemary Nelson, Robert Hamill,
and Billy Wright Inquiries .................................................................................................... 45
2
Deprivations of life must be subjected to the most careful scrutiny by the State,
taking into consideration all the surrounding circumstances relevant to the death
................................................................................................................................................................... 45
The authorities must have taken all reasonable steps available to them to secure
the evidence concerning the incident ........................................................................................ 48
there must be an effective official investigation when individuals have been killed
as a result of the use of force ......................................................................................................... 50
A prompt response is essential; the authorities must act of their own motion, once
the matter has come to their attention, they cannot leave it to the initiative of the
next of kin .............................................................................................................................................. 52
the burden of proof rests on the State to provide a satisfactory and convincing
explanation where they have exclusive knowledge about the death ........................... 53
the persons responsible for and carrying out the investigation must be
independent from those implicated in the events................................................................ 55
The investigation must also be capable of leading to a determination of whether
the force used in such cases was or was not justified and to the identification and
punishment of those responsible ................................................................................................ 57
There must be a sufficient element of public scrutiny of the investigation or its
results to secure accountability in practice as well as in theory .................................... 58
The next-of-kin of the victim must be involved in the procedure to the extent
necessary to safeguard his or her legitimate interests....................................................... 60
Right to Life of Witnesses ...................................................................................................... 61
Right to life of witnesses as Applicable to the Rosemary Nelson, Robert Hamill,
and Billy Wright Inquiries .................................................................................................... 62
Rosemary Nelson Inquiry ............................................................................................................... 62
Robert Hamill Inquiry ...................................................................................................................... 64
Billy Wright Inquiry .......................................................................................................................... 65
6. Conclusions ..................................................................................................................70
Overall Experience .................................................................................................................. 70
Recommendations ................................................................................................................... 72
Initiating an Inquiry .......................................................................................................................... 72
Central Sponsoring Department .................................................................................................. 73
Who Should Decide the Format of the Inquiry ...................................................................... 73
The Inquiries Act 2005 and the Inquiry Rules 2006 ........................................................... 73
Requests for Disclosure of Documents ..................................................................................... 74
Minimising Delay................................................................................................................................ 75
Interview Process for Witnesses ................................................................................................. 75
Anonymity............................................................................................................................................. 76
Giving Oral Evidence......................................................................................................................... 76
Publication of Oral Testimony of Witnesses on Inquiry Website .................................. 77
Powers of Compulsion ..................................................................................................................... 77
Observer Status................................................................................................................................... 77
Giving of Evidence by NGOs ........................................................................................................... 78
Viewing of Report .............................................................................................................................. 78
3
AppendicesAppendix 1: Billy Wright Inquiry List of Screened Witnesses &
Closed Hearings ...............................................................................................................79
Appendix 1: Billy Wright Inquiry List of Screened Witnesses & Closed
Hearings .............................................................................................................................80
Appendix 2: Rosemary Nelson Inquiry List of Screened Witnesses & Closed
Hearings ........................................................................................................................................... 81
Appendix 3: Robert Hamill Inquiry List of Screened Witnesses & Closed Hearings
............................................................................................................................................................. 83
Appendix 4: Billy Wright Inquiry Redactions Table* ...................................................... 84
Appendix 5: Rosemary Nelson Inquiry Redactions Table* ........................................... 88
Appendix 6: Robert Hamill Inquiry Redactions Table* .................................................. 92
Appendix 7: Billy Wright Inquiry Legal Teams and Counsel ........................................ 94
Appendix 8: Rosemary Nelson Inquiry Legal Teams and Counsel ............................. 96
Appendix 9: Robert Hamill Inquiry Legal Teams and Counsel .................................... 97
Appendix 10: NGO Engagement with the Inquiries .......................................................... 98
Billy Wright Inquiry .......................................................................................................................... 98
Rosemary Nelson Inquiry ............................................................................................................... 98
Robert Hamill Inquiry ...................................................................................................................... 99
General Comparisons ..................................................................................................................... 100
4
Acknowledgements
The Committee on the Administration of Justice, Rights Watch (UK) (formerly British
Irish RIGHTS WATCH) and the Transitional Justice Institute would like to thank the
staff of the Rosemary Nelson, Robert Hamill and Billy Wright Inquiries for their
assistance during this project.
We would also like to thank all those who attended as observers and all those who
summarised inquiry transcripts for us.
Particular thanks are due to Elizabeth Super who drafted the final version of this
report and Colleen Smyth who drafted earlier versions.
Finally, we are grateful to the Joseph Rowntree Charitable Trust who provided
funding to allow us to monitor the Cory Inquiries.
5
Executive Summary
In the 1990s three public inquiries were held in Northern Ireland into the deaths of
Rosemary Nelson, Billy Wright and Robert Hamill. The Committee on the
Administration of Justice (CAJ) Rights Watch (UK) (formerly British Irish Rights
Watch) had argued for these inquiries, and had supported all three families
throughout the inquiry process. The aim was to monitor the inquiries and compare
and analyse them to see what lessons emerged for holding effective, human rightscompliant inquiries in future. With the help of the Transitional Justice Institute (TJI)
at the Ulster University, we sent observers to as many of the hearings as possible,
and we summarised the transcripts of the proceedings. Other aspects of the
inquiries were also observed and recorded, including their legislative basis, the
procedures they adopted, and the approach each of them took to seeking to
establish the truth about what happened in each circumstance. This report brings
together our findings, which we hope will inform current debates about best
practice in the truth recovery process after conflict. .
Rosemary Nelson was a solicitor from Lurgan, Co. Armagh, who had a general
solicitor’s practice but also represented clients in a small number of high profile
political cases. Rosemary Nelson had been the subject of numerous death threats
by police officers and loyalist paramilitaries. She was killed on the 15th of March
1999, when a bomb attached to the undercarriage of her car exploded while she
braked at a stop sign at the end of the road where she resided. The Red Hand
Defenders (a loyalist paramilitary group) claimed responsibility for her murder.
Billy Wright was the leader of the Loyalist Volunteer Force (LVF), a paramilitary
organisation, serving a jail sentence in the Maze Prison. He was killed by three Irish
Nationalist Liberation Army (INLA) prisoners on 27th December 1997, as he was
sitting in a prison van waiting to be transported from the H Blocks to the visitor
area.
Robert Hamill was a Catholic civilian who was attacked and severely beaten on 27th
April 1997 in Portadown, Co. Armagh, Northern Ireland. While walking home from
a dancehall, Robert Hamill and his friends were attacked by a group of loyalists. The
assault lasted about ten minutes, during which Robert Hamill was knocked
unconscious. Robert Hamill never regained consciousness and died on 8th May
1997 of injuries associated to blows to the head.
In 2004, the Cory Collusion Inquiry recommended that the UK Government hold
inquiries into the circumstances surrounding these three murders. He also
recommended that the UK government hold an inquiry into the circumstances
surrounding the death of Pat Finucane a solicitor murdered by Loyalists in 1989,
which has not yet taken place. Additionally, he recommended that the Irish
Government hold an inquiry into the deaths of Royal Ulster Constabulary (RUC)
Officers Harry Breen and Bob Buchanan who were killed travelling from the Irish
Republic to Northern Ireland. Because the perpetrators allegedly involved in the
6
deaths included state agents, these inquiries were obligated to meet specific
national and international human rights legal standards.
This report records the outcome of our observation of the three inquiries,
comments briefly on the background which led to the inquiries, and summarise
each case. The report looks at the legal basis for the inquiries, two of which were
converted to inquiries held under the new Inquiries Act 2005, and the role the
inquiries played in the Northern Ireland peace process. It then examine the
procedural aspects of the inquiries, the extent to which they were able to comply
with Article 2 of the European Convention on Human Rights, which provides for an
effective investigation where agents of the State are alleged to be responsible for a
death, and the issues surrounding the protection of witnesses. Finally, it compares
the work and reports of the three inquiries, discuss the absence of an Inquiry into
the death of Pat Finucane and make recommendations for future inquiries.
The report concludes by making the following recommendations:
1) There should be clear guidelines as to the circumstances requiring the
establishment of an inquiry compiled by a group of independent legal
experts based on international standards. These would be subject to pubic
consultation. This group should also be tasked with advising on the best set
of practices and procedures for the operation of any public inquiry.
2) That a central ‘Inquiries Department’ should be designated to provide
funding, expertise and staff for inquiries, providing a monitoring role and
promulgating best practice. It should also establish a panel of lawyers for
inquiries to ensure that experienced counsel are provided to inquiries.
3) Terms of reference for inquiries should be set by an independent body, such
as the one proposed above.
4) The independent inquiries expert group above should review the operation
of the Inquiries Act 2005 to ensure its compliance with European Court of
Human Rights standards.
5) That there should be a presumption in favour of disclosure of un-redacted
documents provided as evidence to an inquiry. Any failure to disclose
should be subject to an adverse inference. These presumptions would be
subject to challenge
6) All parties to the inquiry should have the right to question witnesses, subject
to the oversight of the Chair.
7) Witnesses should be treated according to international standards
8) Inquiry Chairpersons should have the power to impose sanctions on
participants that cause illegitimate delays to the inquiry process.
9) Witness statements should be able to be attested by independent verifiers if
the witnesses themselves refuse to sign. Witnesses should have access to
legal representation whilst making their statements.
10) Anonymity decisions should be made public. It is noted that this must occur
in such a way as to preserve the anonymity of those to whom they are
applied.
11) All participants in an Inquiry should have the presumption of being able to
examine witnesses, unless it is plainly unnecessary, repetitive or irrelevant.
7
12) All evidence to an inquiry should be made public, subject to earlier
restrictions.
13) Inquiry Chairpersons must be able to compel individuals to provide evidence
to the inquiry.
14) NGOs should be able to be granted observer status by an inquiry chair,
giving greater rights and privileges.
15) NGOs with specialist expertise should be given the opportunity to
participate in Inquiries.
16) All participants to an inquiry should have access to an advanced copy of the
inquiries report.
8
1. Background
After approximately three decades of conflict in Northern Ireland, the Good
Friday/Belfast Agreement was signed in 1998.1 Though this Agreement did not end
all political-sectarian violence in Northern Ireland, it is seen as the pivotal point in
the peace process.1
Three years later in 2001, the First Minister of the Northern Ireland Assembly and
leader of the Ulster Unionist Party, David Trimble, resigned as First Minister. In
order to stabilise the then fragile peace process, the British and Irish Governments
held talks with political parties from Northern Ireland. This six day period in July
2001 at Weston Park, England, was intended to reinforce the implementation of the
Good Friday/Belfast Agreement.
One month after the talks, the British and Irish Governments agreed the Weston
Park Agreement.2 This Agreement was the result of the political discussions and
addressed a variety of matters. One of these matters was the issue of how to
address six high-profile cases - two in the Republic of Ireland and four in Northern
Ireland - in which there were allegations of collusion by state agents in the deaths
of citizens. The Governments agreed to bring on board an international judicial
figure ( finally agreeing upon Canadian Supreme Court Judge the Honourable Peter
Cory) to undertake a thorough review of these cases3 and determine whether there
was ‘possible collusion...by members of the security forces in these deaths such as
to warrant a further and more detailed Inquiry.’4 More specifically, the Agreement
promised:
If the appointed judge considers that in any case [the investigation of
each individual case] has not provided a sufficient basis on which to
establish the facts, he or she can report to this effect with
recommendations as to what further action should be taken. In the
event that a Public Inquiry is recommended in any case, the relevant
Government will implement that recommendation.5
1
th
Ben Russell, ‘No. 10 Confident that Weston Park Talks ‘Not in Vain,’ The Independent, Tuesday 17
July 2001: http://www.independent.co.uk/news/uk/this-britain/no-10-confident-that-weston-parktalks-not-in-vain-678017.html.
2
http://cain.ulst.ac.uk/events/peace/docs/bi010801.htm
3
Press Release, Irish Department of Foreign Affairs, Appointment of Judge to Investigate Allegations
of Collusion (29 May 2002): http://foreignaffairs.gov.ie/home/index.aspx?id=26280
4
Cory Collusion Inquiry Report: Robert Hamill, 2004, H.C. 471, page 3; Cory Collusion Inquiry Report:
Billy Wright, 2004, H.C. 472, page 3; Cory Collusion Inquiry Report: Rosemary Nelson, 2004, H.C. 473,
page 3. http://cain.ulst.ac.uk/issues/collusion/index.html
5
Weston Park Agreement (2001)
9
Judge Cory gave the results of his investigations to the British and Irish
Governments in October 2003. 6 He determined that the available evidence
indicated that there were matters of concern which would warrant further, more
detailed, inquiries.7 He recommended the establishment of a series of public
inquiries to examine the cases in more detail. These cases included all four from
Northern Ireland: Patrick Finucane, Rosemary Nelson, Billy Wright, and Robert
Hamill.8 Following Judge Cory’s recommendations, public inquiries were established
set up for Rosemary Nelson, Robert Hamill, and Billy Wright. There was to be no
public inquiry established for the case of Patrick Finucane.
To the disappointment of his family, in the case of Patrick Finucane, the Prime
Minister, David Cameron, ordered a Barrister led review by Sir Desmond de Silva QC
(the ‘de Silva review’) instead of a public inquiry. Following this review, David
Cameron stated that he had asked the Secretary of State for Defence, the Secretary
of State for Northern Ireland and the Cabinet Secretary to report back to him on all
the issues arising for the report, and promised to publish these reports. However,
this has still not occurred.
The Prime Minister has said that a public inquiry would not produce a fuller picture
of what happened and what went wrong in this case. The family is no closer to the
answers they deserve.
6
Ministerial Statement on Government Response to the Cory Reports (1 April 2004), paragraph 2:
http://www.publications.parliament.uk/pa/cm200304/cmhansrd/vo040401/debtext/4040105.htm#40401-05_head1
7
See, for example, Cory Collusion Inquiry Report: Robert Hamill (2004)H.C. 471, page 3. In the case of
the murders of Chief Superintendent Breen and Superintendent Buchanan, further investigation was
also recommended and the Smithwick Tribunal was established in the Republic of Ireland:
http://www.smithwicktribunal.ie/smithwick/HOMEPAGEhtml
8
The other murders referred to were those of Chief Superintendent Harry Breen and
th
Superintendent Bob Buchanan, two RUC officers murdered by the IRA on 20 March 1989, and Lord
th
Justice and Lady Gibson, murdered by the IRA on 27 April 1987. The murders of Chief
Superintendent Breen and Superintendent Buchanan occurred when they were returning to
Northern Ireland having visited a police station in the border town of Dundalk in the Republic of
Ireland. Lord Justice Gibson was a Diplock court judge. He and his wife were ambushed as they
returned home to Northern Ireland after disembarking from a ferry in Dublin.
10
2. Summary of Each Case
Rosemary Nelson
After practicing law with her counterparts in Belfast for a number of years,
Rosemary Nelson decided to move back to the town she had grown up in - Lurgan,
Co. Armagh - and open her own practice.9 She started with just two rooms and a
secretary, but in the next ten years her practice grew considerably to the extent
that she was able to employ fellow solicitors.10 Rosemary Nelson provided a variety
of legal services to clients drawn from both the Protestant and Catholic
communities in Northern Ireland. She ran a general practice, covering a broad
range of legal issues.11
Rosemary Nelson was one of a small number of defence lawyers in Northern Ireland
who undertook politically sensitive cases.12 She fought for basic due process rights
for her clients and legal protections for the community she represented. 13Late in
her career she began to represent suspects who had been detained for questioning
about politically-motivated (terrorist) offences 14 – many of whom had been
arrested under emergency laws and held without the normal procedural
guarantees15being afforded to them, such as access to a solicitor.16
As a result of representing these high-profile clients, Rosemary Nelson, together
with other lawyers, was frequently the target of harassment, death threats, and
intimidation. She was threatened by members of the RUC on a number of
occasions; the threats primarily made to her clients while they were being
questioned in her absence.17 Rosemary Nelson knew that she was at risk of being
9
Cory Collusion Inquiry Report: Rosemary Nelson, (2004) H.C. 473, paragraph
4.11:http://cain.ulst.ac.uk/issues/collusion/cory/cory03nelson.pdf
10
Transcript of Day 2, Rosemary Nelson Inquiry (2008), page 58:
http://webarchive.nationalarchives.gov.uk/20110612081947/http://www.rosemarynelsoninquiry.or
g/transcripts/173/
11
Cory Collusion Inquiry Report: Rosemary Nelson (2004), H.C. 473, paragraph 4.11.
12
Elisa Massimino, Paying the Ultimate Price for Human Rights: The Life and Death of Rosemary
Nelson, 27 Human Rights Quarterly 3, (2000). See also Dato’ Param Cumaraswamy, Report of the
Special Rapporteur on the Independence of Judges and Lawyers, delivered to the Commission on
Human Rights, 54th Session, U.N. Doc. E/CN.4/1998/39/Add.4 (1998), page 32.
13
Condemning the Murder of Rosemary Nelson and Urging Protection of Defense Attorneys in
Northern Ireland: Proceedings and Debate of the 106th Congress, 529-30 (1999) (statement of Hon.
Christopher H. Smith).
14
Cory Collusion Inquiry Report: Rosemary Nelson, (2004) H.C. 473, paragraph 4.12.
15
Such as those under the Police and Criminal Evidence (Northern Ireland) Order 1989 [PACE].
16
Molly R. Murphy, Northern Ireland Policing Reform and the Intimidation of Defense Lawyers, 68
Fordham Law Review (2000), pages 1877 - 1878. See generally Martin Flaherty, Human Rights
Violations Against Defense Lawyers: The Case Of Northern Ireland, 7 Harvard Human Rights Journal
(1994).
17
Julia Hall, To Serve Without Favor, Human Rights Watch(1997), pages173-74. Because the clients
were detained under emergency legislation, the RUC was allowed to interrogate them without a
lawyer being present. It is alleged that during these interrogations, the clients would be given
11
attacked or killed.18 She debated whether she should give up the contentious work;
learn to live with the abuse and try to keep a low profile; or tackle the abuse head
on by making official complaints and campaigning publicly for her clients’ rights.
Rosemary Nelson concluded that the main purpose of the threats was to dissuade
her from representing clients whom the police perceived as the enemy. She could
not, in the words of one commentator, ‘abandon her clients, so she chose to
confront the abuses and carry on with her work’.19
On Monday15th March1999, at approximately 12:40pm., Rosemary Nelson left her
house in Lurgan and got into her car to drive to her office. As she slowed to a stop
at the stop sign at the end of her street, a sophisticated bomb attached to the
undercarriage of her car detonated. The force of the blast ripped through the
driver’s side of the car.20 The wreckage of her car “veered across the road and
struck a garden wall”21 50 yards away from the primary school where her eight year
old daughter, Sarah, was on her lunch break. The noise of the explosion was
immediately reported to the emergency services, and neighbours rushed to the
scene. Ambulance staff, members of the fire service, and the police arrived soon
after.22 Though Rosemary retained consciousness, the bomb caused serious injuries
to her legs and her abdomen.23 Despite efforts to save her, Rosemary Nelson’s
injuries were too severe. She died shortly after 3 o’clock, a little over two hours
after the bomb exploded.24
The Red Hand Defenders (a loyalist paramilitary group) claimed responsibility for
her murder.25
In 2004, in the Cory Collusion Inquiry, Judge Cory recommended that the UK
Government hold an Inquiry into the circumstances of Rosemary Nelson's death,
stating that:
‘I am satisfied that there is evidence of collusion by Governmental Agencies in the
murder of Rosemary Nelson that warrants holding a public inquiry.’26
warnings to carry back to Rosemary. Cory Collusion Inquiry Report: Rosemary Nelson (2004)H.C.
473, paragraphS 20 - 24.
18
Hearing Before the International Operations and Human Rights. Sub-committee of the House.
International Relations Committee, 105th Congress (1998) (testimony of Rosemary Nelson).
SUSAN’S COMMENT: IS THERE SOMETHING MISSING HERE?
19
Elisa Massimino, Paying the Ultimate Price for Human Rights: The Life and Death of Rosemary
Nelson, 27 Human Rights Quarterly 3, (2000), page 4.
20
Transcript of Day 1, Rosemary Nelson Inquiry (2008), page 3:
http://webarchive.nationalarchives.gov.uk/20110612081947/http://www.rosemarynelsoninquiry.or
g/transcripts/172/
21
Cory Collusion Inquiry Report: Rosemary Nelson (2004, H.C. 473) paragraph 4.20.
22
Transcript of Day 1, Rosemary Nelson Inquiry (2008), page 3.
23
Condemning the Brutal Killing of Rosemary Nelson, H. Con. Res. 59, 106th Congress (1999)
(enacted).
24
Transcript of Day 1, Rosemary Nelson Inquiry (2008), page 3.
25
Ibid.
26
Cory Collusion Inquiry Report: Rosemary Nelson (2004)H.C. 473,paragraph4.197.
12
The resulting Inquiry into her murder opened in Craigavon, Co. Armagh, in April
2005. Full hearings began in Belfast on 15th April 2008 and concluded on 24th June
2009 after 130 days of hearings.
Robert Hamill
Robert Hamill was a twenty-five year old construction worker. Though he was
raised as a Catholic in Portadown, Co. Armagh, Northern Ireland, he did not identify
with the Nationalist cause.
Robert Hamill lived with his fiancée, with whom he had two sons - Shane (6 years
old) and Ryan (4 years old) - and a third child on the way.
On the evening of 26 April 1997, Robert Hamill had gone to St Patrick’s Dance Hall
with his cousins. When the music stopped at 1:20am, Robert and his cousins began
their walk home, a walk which took them through the centre of Portadown.
Though this was known to be a dangerous area, there were routinely police officers
stationed on the way to prevent riots.
On the night of 26 April 1997, Robert Hamill and his cousins were attacked by a
group of loyalists while walking home. During the assault, which lasted for
approximately ten minutes, Robert was kicked unconscious. He never regained
consciousness. Robert Hamill died on 8th May 1997 of injuries inflicted in the
attack on him that evening.
In 1997, six people were arrested in connection with his death. In 1999, only one
was charged, a ‘Mr P’. Mr P was acquitted of murder, and found guilty on the lesser
charge of affray.27 The other five were not charged at this time. In 2003, Robert
Atkinson, a former Royal Ulster Constabulary (RUC) Reserve Constable was arrested on
suspicion of perverting the course of justice. This was discontinued in 2004.
In 2004, the Cory Collusion Inquiry recommended that the UK Government hold an
Inquiry into the circumstances of Hamill’s death:
‘The cumulative effect of the issues … combined with the alleged acts of Officer B
convince me that there is sufficient evidence of police collusion to warrant the
holding of a public inquiry28.
The preliminary hearing of the Robert Hamill Inquiry was held on 24th May 2005
when the Inquiry began its investigations. The hearings were held in Belfast and
concluded on 17th December 2009, after 77 days of evidence.
27
Cory Collusion Inquiry Report: Robert Hamill, 2004, H.C. 471, paragraph 2.10:
http://cain.ulst.ac.uk/issues/collusion/cory/cory03hamill.pdf
28
Ibid, paragraph 2.248.
13
The Inquiry published an interim report asking the Public Prosecution Service for
Northern Ireland (PPSNI) to reconsider its 2004 decision to discontinue Robert
Atkinson’s prosecution. The PPSNI confirmed that following a review that there was
a case to answer and that three people had been charged with perverting the
course of justice. These are: Robert Atkinson, his wife Eleanor Atkinson, and
Kenneth Hanvey. Proceedings were temporarily stayed, once on grounds of
gathering evidence, and later due to unreliability of a witness. This was quashed in
March 2014, and the criminal proceedings are continuing.
On 25th February 2011, the Inquiry Chairman, Sir Edwin Jowitt advised that the
Inquiry Panel has fulfilled its Terms of Reference and completed its Report. The
Chairman made the decision to hold back publication of the Inquiry Report in order
to ensure that it did not influence the ongoing criminal proceedings against three
individuals charged with perverting the course of justice in connection with Hamill’s
death.
Billy Wright
As a young man, Billy Wright was a ‘controversial political figure in Northern
Ireland’. Though he was initially recruited into the Ulster Volunteer Force (UVF), he
became disillusioned with UVF policies and broke away to start his own paramilitary
group, the Loyalist Volunteer Force (LVF). The LVF quickly developed as a significant
paramilitary organisation, gaining many supporters but also many political enemies.
In the spring of 1997, Billy Wright was convicted of threatening the son of a
prosecution witness with intent to pervert the course of justice and threatening to
kill an individual. He was sentenced to eight years on each criminal count, to be
served concurrently. Prior to his imprisonment, ‘Billy Wright was becoming isolated
and marginalised as the UVF continued to portray him as a renegade drug dealer
who opposed the political process and peace.’ Billy Wright was aware that he was
under ‘intense surveillance by RUC Special Branch and the British Intelligence
Services….it was his belief that within 6 months to a year he would either be
imprisoned for a lengthy time or dead’, both were true.29
He was originally imprisoned at Maghaberry Prison but requested and received a
transfer to the Maze Prison on 26 April 1997. Prison officials arranged for Billy
Wright and his other LVF members to be housed in H Block 6, Wings C and D.
On 27 December 1997, Billy Wright was sitting in a prison van, waiting to be
transported from the H Blocks to the visitor area, when he was shot by three Irish
29
Chris Anderson; ‘The Billy Boy: The Life and Death of LVF Leader Billy Wright’; Chapter 4 –
‘Expulsion and Imprisonment’ – page 2 of chapter 4
14
Nationalist Liberation Army (INLA) prisoners. His assassins stated that they killed
him because Billy Wright was directing an organised campaign of murder against
the Nationalist community from his prison cell.30
In 2004, the Cory Collusion Inquiry recommended that the UK Government hold an
Inquiry addressing the circumstances of and responsibility for Billy Wright’s death:
'My review of the relevant documents has led me to conclude that there must be a
public inquiry. Taken together they have satisfied me that there is sufficient
evidence of collusive acts by prison authorities to warrant the holding of a public
inquiry.’31
The Inquiry was announced by the Secretary of State for Northern Ireland, the Right
Honourable Paul Murphy MP, on 16th November 2004.
After preliminary hearings on 22nd June 2005 and 13th December 2005, the Billy
Wright Inquiry commenced oral hearings on 30th October 2006. The Inquiry
concluded on 2nd July 2009 after 156 days of hearings. The hearings were held in
Banbridge, Co. Down.
30
Cory Collusion Inquiry Report: Billy Wright, 2004, H.C. 472, paragraph 3.10:
http://cain.ulst.ac.uk/issues/collusion/cory/cory03wright.pdf
31
Ibid, paragraph 3.222.
15
3. Legal Basis for Establishment of the Inquiries
The United Kingdom’s public inquiry system has commonly been used to investigate
allegations of failure or shortcomings in administration by the government or its
agencies, in the aftermath of maladministration, disasters, or individual deaths.
Public inquiries are used in order to inform the official narrative and to bring closure
to controversial incidents. Public inquiries are a unique system of accounting for
particular incidents of public concern arising from conflict; this is demonstrated by
those arising from Northern Ireland. Public inquiries fulfil these roles through
collecting, documenting and analysing evidence; taking testimony from witnesses;
analysing the particular circumstances and historical factors around the incident;
determining where culpability lies; and making recommendations so as to prevent
the reoccurrence of a similar event.32
There are various Acts under which statutory inquiries in Northern Ireland have
been held.
Tribunals of Inquiry (Evidence) Act 1921
The Tribunals of Inquiry (Evidence) Act 1921 was passed to replace an earlier
system of investigation by parliamentary committee into matters of urgent public
concern.33 Public inquiries under this Act, once established by Parliamentary
resolution that there existed ‘a definite matter…of urgent public importance’34,
were run in a manner independent of Parliament. The Act itself primarily deals with
the powers of the Inquiry once it has been established.
The focus of public inquiries held under the Tribunals of Inquiry (Evidence) Act 1921
has been allegations of serious misconduct by the government or public officials.
They were “always…confined to matters of vital public importance concerning
which there is something of a nation-wide crisis of confidence.”35 These inquiries
have included investigations into allegations of political corruption, police brutality,
and serious disasters. Since 1921, the Act was used 24 times, to establish some
well-known British Inquiries, including the Aberfan Landslide Disaster Inquiry, The
Bloody Sunday Inquiry, the Dunblane School Inquiry, and the Harold Shipman
Inquiry.36
32
Pratt, J. & Gilligan, G. ‘Introduction: Crime, Truth and Justice – Official Inquiry and the Production
of Knowledge’ from Gilligan, G. & Pratt, J. Crime, Truth and Justice: Official Inquiry, Discourse,
Knowledge, (2004) Willan Publishing, page 2.
33
This earlier system was discredited by the unsatisfactory outcome of an inquiry by a Commons
committee into the Marconi Affair in 1913.
34
Tribunal of Inquiries (Evidence) Act 1921, s. 1 (repealed).
35
Salmon Commission C.f. the Inquiries Act 2005, which only requires “public concern.”
36
Investigatory inquiries and the Tribunals of Inquiry (Evidence) Act 1921, House of Commons Library
Standard Note SN/PC/02599 (3 September 2012).
16
The Act was repealed by the Inquiries Act 2005. .37
Prison Act (Northern Ireland) 1953
The Northern Ireland Prison Service was formerly an executive agency of the
Northern Ireland Office (NIO) established in April 1995 under the Government’s
Next Steps Initiative; however authority has been subsequently devolved to the
Northern Ireland Assembly. It is responsible for providing prison services in
Northern Ireland. The main statutory duties of the Prison Service are established in
the Prison Act (Northern Ireland) 1953. When an individual in custody or care of
the Prison Service is injured or killed, the Act identified the method with which to
deal with the incident.
The Billy Wright Inquiry was first established under Section 7 of the Prison Act
(Northern Ireland) 1953. That section provided:
“(1) The Minister may cause an inquiry to be held where it appears to him
advisable to do so in connection with any matter arising under the Act or
otherwise in relation to any prison.
(2) For the purposes of such inquiry the provisions of section sixty-five of
and the Seventh Schedule to the Health Services Act (Northern Ireland),
1948 (which relates to inquiries) shall have effect for the purposes of this
Act in like manner as they have effect for the purposes of that Act.” 38
Section 7 was repealed under the Inquiries Act 200539, so technically the Billy
Wright Inquiry was held under legislation that was no longer in force.
Police (Northern Ireland) Act 1998
The Police Service of Northern Ireland (PSNI) is responsible for providing police
services in Northern Ireland. When there is an incident that involves the police, the
Police Act is the guiding document for how the incident shall be handled.
The Rosemary Nelson and Robert Hamill Inquiries40 were established under Section
44 of the 1998 Act. That section reads as follows:
“44. (1) The Secretary of State may cause an inquiry to be held by a person
appointed by him into any matter connected with policing.
(2) An inquiry under this section shall be held in public or in private as the
Secretary of State may direct.
37
Schedule 3.
It was later re-established under the Inquiries Act 2005 – see below.
39
Schedule 2, Part 3.
40
The Robert Hamill Inquiry was later re-established under the Inquiries Act 2005 – see below.
38
17
(3) Schedule 8 to the Health and Personal Social Services (Northern Ireland)
Order 1972 (inquiries and investigations) shall apply to an inquiry under this
section with the substitution for references to the Ministry of references to
the Secretary of State.
(4) Where the report of the person holding an inquiry under this section is
not published, a summary of his findings and conclusions shall be made
known by the Secretary of State so far as it appears to him consistent with
the public interest.”
These provisions were also repealed by the Inquiries Act 2005.41
Inquiries Act 2005
In 2005, the UK government passed the Inquiries Act 2005, a piece of legislation
which consolidated, updated, and replaced the existing statutory mechanisms for
inquiries. The new legislation, spurred on - it was stated - by the enormous expense
of the Bloody Sunday Inquiry, aimed to consider what steps could be taken to make
inquiry procedures “faster and more effective and to contain cost escalation”.42 To
this end, the 2005 Act included detailed instructions for all parts of the inquiry from determining whether an inquiry is necessary through final publication of the
reports. Additionally, it contained specific provisions about the roles of the Minister
and Chairman and specific stipulations about the grounds on which the Minister
and Chairman can restrict access to otherwise public proceedings.
The Act empowers inquiries to seek out any and all information within their terms
of reference. An inquiry cannot determine matters of civil or criminal liability.43 It
also requires that the final reports of inquiries must be published in full, unless the
Minister has specific reasons - also detailed in the Act - to withhold the material.
Once an inquiry concludes, any restrictions on public access to material and
evidence used during the Inquiry will be subject to the Freedom of Information Act
2000, unless a Restriction Order made under the Act dictates otherwise.44
The Inquiries Act 2005 was criticised both during its legislative debates and after its
implementation. CAJ and BIRW opposed the Inquiries Act 2005 because it included
a fundamental shift in the manner in which the actions of government and public
bodies could be subjected to scrutiny in the United Kingdom. The powers
traditionally given to independent chairs to control Inquiries were instead placed in
the hands of government ministers. Under the Inquiries Act 2005, the Minister has
the power to: decide whether there should be an inquiry; set the inquiry’s terms of
reference; amend its terms of reference; appoint its members; restrict public access
to inquiries; prevent the publication of evidence placed before an inquiry; prevent
the publication of the inquiry’s report; suspend or terminate an inquiry; and
41
Schedule 3
Memorandum by the Department for Constitutional Affairs (GBI 09), Select Committee on Public
Administration Minutes of Evidence, House of Commons (14 July 2004).
43
S.2 Inquiries Act 2005
44
It has become common practice to issue a closing Restriction Order making all redactions and
grants of anonymity permanent.
42
18
withhold the costs of any part of an inquiry which strays beyond the terms of
reference set by the Minister.
CAJ commented “the Inquiries Bill vests in the government minister sole
responsibility for determining the chair, inquiry members, and terms of reference
for all future inquiries. The government minister can issue a Restriction Notice,
imposing limitations on attendance at the inquiry and disclosure or publication of
any evidence or documents provided to the inquiry, and the draft legislation
suggests a presumption in favour of issuing such notices. The legislation even
proposes that it be given a retrospective impact, with current inquiries being
capable of being ‘converted’ by ministerial decision.”45CAJ was concerned that
Parliament’s role was reduced to that of the passive recipient of information about
inquiries, rather than an active participant in their formation and the
implementation of its recommendations. The 2005 Act contains no guarantee that
any inquiry will be public, but rather, inquiry reports will go to the Minister and will
be published at her/his discretion. BIRW shared these concerns, and lobbied
extensively against the act, on the grounds that it gave governments a charter to
investigate their own misdemeanours, would facilitate rather than expose coverups and would lead to a less rather than more effective and efficient inquires
system.
CAJ, BIRW and other organisations found this lack of public disclosure of particular
concern where the actions of that Minister, or his or her predecessors, or those of
his or her department, or those of the government, are under review. In effect, the
State will be investigating itself. This lack of checks and balances is at odds with the
United Nations’ Updated Set of Principles for the Protection and Promotion of
Human Rights through action to combat impunity.46
Twelve years after the enactment of the legislation, 15 have been conducted under
it.47
It should be noted that there has been a House of Lords Select Committee on the
Inquiries Act 2005, which RWUK (former BIRW), CAJ, and other organisations have
contributed to; making submissions and giving evidence. The Select Committee’s
report, published 11th March 2014, scrutinised the legislation and made
recommendations to amend it.
45
Committee on the Administration of Justice, The End of Public Inquiries As We Know Them (2004),
available athttp://www.caj.org.uk/contents/452
46
Updated Set of Principles for the Protection and Promotion of human rights through action to
combat Impunity, E/CN.4/2005/102/Add.1 (2005).See also Marny Requa, ‘Truth, transition, and the
Inquiries Act 2005’, (2007) 4, European Human Rights Law Review, pages 404-426.
47
The Billy Wright Inquiry; the Robert Hamill Inquiry; the E-coli Inquiry (Wales); the ICL Inquiry ; the
death of Bernard Lodge; the Baha Mousa Inquiry; the Fingerprint Inquiry (Scotland); inquiry into HIV
and Hepatitis C infection from contaminated blood and blood products; inquiry into the outbreak of
Clostridium Difficile in Northern Trust Hospitals (Wales); the Vale of Leven Hospital Inquiry (Scotland;
the Al-Sweady inquiry (Iraq); the Azelle Rodney Inquiry; inquiry into Mid Staffordshire NHS
Foundation Trust; the Leveson inquiry into hacking.
19
The Weston Park Agreement and the Cory Inquiries
Since inquiries are commonly established to investigate allegations of government
failings in the aftermath of maladministration, disasters or individual deaths, they
are influenced by the political need (and will) to attempt restoration of public
confidence in light of such allegations.48
As a result, the establishment of a public inquiry can be a political issue and one
which government Ministers should consider carefully before proceeding. 49 When
considering the establishment of an inquiry, a Minister needs to assess whether an
inquiry may fall into the remit of a statutory or regulatory body which already
exists, or, if not, whether the establishment of a statutory or an ad-hoc nonstatutory inquiry is required.50 Furthermore, a Minister may consider establishing a
public inquiry to fulfil procedural obligations surrounding the duty imposed on
European States to effectively investigate the death of a citizen under the
applicable standards and jurisprudence of Article 2 of the European Convention on
Human Rights (ECHR), which protects the right to life.51
The three Inquiries under consideration in this report arose out of no such
individual deliberative process. They were part of the Weston Park Agreement and
thus were initiated as part of the Northern Ireland peace process. The British and
Irish governments agreed a package of six cases to be subject to further scrutiny,
four from Northern Ireland and two from the Republic of Ireland. In three of the
cases the victims were Protestant52 and in the other three they were Catholic.53 In
all six there were allegations of State collusion with paramilitaries. In three cases
the paramilitaries involved in the killings were Loyalist54 and in three they were
Republican.55 It was self-evident that a political balancing act was involved in the
choice of cases selected for further inquiry.
In Northern Ireland, all four cases - Finucane, Hamill, Nelson and Wright – were
politically significant and their families had been campaigning for public inquiries for
a considerable time. The three Republic of Ireland cases – Gibson, and Buchanan
and Breen – were less high-profile, and their families were not aware that their
cases were being considered for inclusion in this process. Under the terms of the
Weston Park Agreement, the two governments had, at least in theory, no choice
48
Pratt, J. & Gilligan, G. ‘Introduction: Crime, Truth and Justice – Official Inquiry and the Production
of Knowledge’ from Gilligan, G. & Pratt, J. Crime, Truth and Justice: Official Inquiry, Discourse,
Knowledge, (2004) Willan Publishing, page 2.
49
Advice to the Lord Chancellor on the procedural issues arising in the conduct of public Inquiries set
up by Ministers, Council on Tribunals (July 1996), paragraph 5.5.
50
Inquiries can also be established without a statutory basis. There were also a number of these
non-statutory inquiries, such as the Hutton Inquiry, which was established to enquire into the death
of Dr David Kelly, a former British weapons inspector in Iraq.
51
R v Secretary of State for the Home Department, ex parte Amin [2003] UKHL 51.
52
Buchanan & Breen, Gibson and Wright.
53
Finucane, Nelson and Hamill.
54
Finucane, Hamill and Nelson.
55
Wright, Buchanan & Breen, and Gibson.
20
but to hold an inquiry if Judge Cory recommended one; although this commitment
has not been honoured in the case of Patrick Finucane.
An inquiry into the murder of Patrick Finucane has long been met with resistance by
the state as commentators have noted:
“Its response to the recommendation in respect of the Finucane case was, however,
very different. In that case, which arguably raised the most potentially damaging
allegations of official misconduct, the government failed to establish an inquiry
under what would have been the most suitable domestic legislation (the Tribunals
of Inquiry (Evidence) Act 1921), but indicated instead that new legislation would
have to be enacted.” 56 Despite negotiations with the family on the terms of
reference of such an inquiry, the UK government reneged on this commitment and
proffered a ‘review’ 57 which was met with international criticism as the only
mechanism available to the family.
The Robert Hamill, Rosemary Nelson, and Billy Wright Inquiries were all originally
established as statutory inquiries under individual Acts. The Robert Hamill and
Rosemary Nelson Inquiries were established under s.44 of the Police (Northern
Ireland) Act 1998 and the Billy Wright Inquiry under s.7 of the Prisons Act (Northern
Ireland) 1953. The Police (Northern Ireland) Act 1998 and the Prisons Act (Northern
Ireland) 1953 had relatively weak powers to compel witnesses and the disclosure of
documents and other evidence, so the Robert Hamill and Billy Wright Inquiries
sought the permission of the Secretary of State for Northern Ireland to convert
their statutory basis to the Inquiries Act.
The Robert Hamill Inquiry was converted under the Inquiries Act 2005 on 23 rd
November 2005 and the Billy Wright Inquiry was converted on 29th March 2006.
David Wright, Billy Wright’s father, challenged the conversion by way of judicial
review, but lost his case, which was supported by joint third party interventions
from Amnesty International, BIRW and CAJ, and by the Northern Ireland Human
Rights Commission.58 The Rosemary Nelson Inquiry remained a statutory inquiry
under the Police (Northern Ireland) Act 1998.
Although Judge Cory called his investigation “The Collusion Inquiry”, none of the
three inquiries that are the subject of this report included the word “collusion” in its
terms of reference. Judge Cory had defined collusion as follows:
“How should collusion be defined? Synonyms that are frequently given for the
verb to collude are these: to conspire; to connive; to collaborate; to plot; and to
scheme. The verb “connive” is defined as to deliberately ignore; to overlook; to
disregard; to pass over; to take no notice of; to turn a blind eye; to wink; to
56
‘Habits of Mind and “Truth Telling”: Article 2 ECHR in Post-Conflict Northern Ireland, G. Anthony,
and Paul Mageean in Morrison et al (eds) Judges, Transition and Human Rights (Oxford University
Press, 2007)
57
http://www.patfinucanereview.org/
58
In the Matter of an Application by David Wright for Judicial Review of a Decision of the Secretary of
State for Northern Ireland [2006] NIQB 90.
21
excuse; to condone; to look the other way; to let something ride; see for
example the Oxford Compact Thesaurus Second Edition 2001.
Similarly the Webster dictionary defines the verb collude in this way: to connive
with another: conspire, plot. It defines the verb connive as follows:
1. to pretend ignorance or unawareness of something one ought morally, or
officially or legally to oppose; to fail to take action against a known
wrongdoing or misbehaviour – usually used with connive at the violation of
a law.
2. (a) to be indulgent, tolerant or secretly in favour or sympathy;
(b) wink at youthful follies;
(c) to cooperate secretly: to have a secret understanding.
In the narrower context, how should collusion be defined for the purposes of
this inquiry? At the outset it should be recognised that members of the public
must have confidence in the actions of Governmental agencies, particularly
those of the Army and the police force. There cannot be public confidence in
government agencies that are guilty of collusion in serious crimes. Because of
the necessity for public confidence in the Army, the Police, and Security Services
the definition of collusion must be reasonably broad when it is applied to
actions of these agencies. This is to say that Army and police forces must not act
collusively by ignoring or turning a blind eye to the wrongful acts of their
servants or agents. Any lesser definition would have the effect of condoning, or
even encouraging, state involvement in crimes, thereby shattering all public
confidence in these important agencies.”59
59
Cory Collusion Inquiry Report: Patrick Finucane HC470 (April 2004), paragraphs 1.272 – 1.274.
22
4. Procedures of the Inquiries
Procedural Tools
This section explains each procedural tool. The following sections draw on these
explanations and illustrate how each tool was implemented in the Rosemary
Nelson, Robert Hamill and Billy Wright Inquiries.
Terms of Reference
The terms of reference of an inquiry establish its remit - the parameters for who
and what the inquiry is allowed to investigate. Because of its centrality to the
functioning of the inquiry, the scope of the terms of reference must be carefully
formulated. It is necessary to include in the terms of reference a scope broad
enough to encompass all issues central to the inquiry - so as not to restrict
investigations with a narrow ambit - but that is not too broad so as to cast an
investigative net so wide and imprecise that it clouds the issues instead of
clarifying them.60
The current legislation, the Inquiries Act 2005, gives a definition of the “terms of
reference” in s5(6) as:
(a) the matters to which the inquiry relates;
(b) any particular matters as to which the inquiry panel is to determine
the facts;
(c) whether the inquiry panel is to make recommendations;
(d) any other matters relating to the scope of the inquiry that the
Minister may specify.
The act also specifies at s5(3) that ‘the Minister may at any time after setting out
the terms of reference under this section amend them if he considers that the
public interest so requires’, and at s5(4) that ‘before setting out or amending the
terms of reference the Minister must consult the person he proposes to appoint, or
has appointed, as chairman.’
60
‘Government by Inquiry’, House of Commons Public Administration Select Committee, First Report
2004-2005 (27 January 2005), HC51-I, page 33. The International Convention on Civil and Political
Rights contains a general obligation of the contracting State to “respect and ensure” the protection
of rights of individuals within the State. Developing a set of terms of reference, which accurately
encapsulates all of the possible issues and actors involved in the victim’s death, is an essential part of
fulfilling the State’s obligation.
23
The House of Lords Select Committee on the Inquiries Act 2005 recommended that
section 5(4) should be amended so that the consent of the chairman is needed
before the minister can set or amend the terms of reference.61
Public Access
Public inquiries are, as their name suggests, held in public. There are instances,
however, in which circumstances may require that the inquiry be held in private. A
good overview of the circumstances in which a private inquiry - either in whole or in
part -may be permissible, was provided by the former Council of Tribunals. This was
a non-departmental public body sponsored by the Ministry of Justice,62which was
previously responsible for reporting on the administrative procedures of statutory
tribunals. This circumstances included: situations of national security; situations in
which there is no strong public interest in holding the hearings in a public session;
situations dealing with juveniles in which it is in the best interest of the juveniles
involved; situations in which it is necessary to protect the private life of the parties
involved; situations where one party has made a request in writing for the hearing
to be held in private and there is no important public interest consideration for the
public to be present; and in matters of discretion of the inquiry, where the tribunal
is of the opinion that it is strictly necessary to the interests of justice to hold a
private inquiry.63
This list mirrors the limitations64 placed on Article 6 ECHR, which protects the right
to a fair trial. Though Article 6 typically deals with the procedure for a tribunal
determining civil or criminal liability, it is useful insofar as the inquiry process is
governed by rules similar to those found in an “ordinary” courtroom. This was
further established by the European Court of Human Rights (ECtHR), in its
recognition that it is necessary to restrict the public nature of proceedings if
required for a witness’ safety, privacy, or ability to be forthcoming with the
tribunal.65
Section 19 of the Inquiries Act 2005, which was ultimately used as the statutory
basis for the Robert Hamill and Billy Wright Inquiries, specifies as follows:
“19. Restrictions on public access etc
61
The House of Lords Select Committee on the Inquiries Act 2005 report of session (2012-2013)
published 11th March 2014; paragraph 145, page 48.
62
The Council of Tribunals regulated tribunals, and considered and report ed on the administrative
procedures of statutory inquiries. It was replaced by the Administrative Justice & Tribunals Council in
2007, which was established by the Tribunals, Courts and Enforcement Act 2007. This was abolished
on Monday19th August 2013.
63
Framework of Standards for Tribunals, Council on Tribunals, (November 2002) (updated February
2006), page 4, chapter 1, paragraph (d) http://ajtc.justice.gov.uk/docs/guid_framstan.pdf; Guide to
Drafting Tribunal Rules, Council on Tribunals (November 2003), rule 69.
64
Article 6 (1) “…Judgment shall be pronounced publicly but the press and public may be excluded
from all or part of the trial in the interests of morals, public order or national security in a democratic
society, where the interests of juveniles or the protection of the private life of the parties so require,
or to the extent strictly necessary in the opinion of the court in special circumstances where publicity
would prejudice the public interest.”
65
For example, see: Osinger v Austria, (Application no. 54645/00) 24 March 2005, paragraph 45.
24
(1)Restrictions may, in accordance with this section, be imposed on—
(a) attendance at an inquiry, or at any particular part of an inquiry;
(b) disclosure or publication of any evidence or documents given, produced
or provided to an inquiry.
(2)Restrictions may be imposed in either or both of the following ways—
(a) by being specified in a notice (a “restriction notice”) given by the
Minister to the chairman at any time before the end of the inquiry;
(b) by being specified in an order (a “restriction order”) made by the
chairman during the course of the inquiry.
(3)A restriction notice or restriction order must specify only such restrictions—
(a) as are required by any statutory provision, enforceable Community
obligation or rule of law, or
(b) as the Minister or chairman considers to be conducive to the inquiry
fulfilling its terms of reference or to be necessary in the public interest,
having regard in particular to the matters mentioned in subsection (4).
(4)Those matters are—
(a) the extent to which any restriction on attendance, disclosure or
publication might inhibit the allaying of public concern;
(b) any risk of harm or damage that could be avoided or reduced by any
such restriction;
(c) any conditions as to confidentiality subject to which a person acquired
information that he is to give, or has given, to the inquiry;
(d) the extent to which not imposing any particular restriction would be
likely—
(i) to cause delay or to impair the efficiency or effectiveness of the
inquiry, or
(ii) otherwise to result in additional cost (whether to public funds or to
witnesses or others).
(5)In subsection (4)(b) “harm or damage” includes in particular—
(a) death or injury;
(b) damage to national security or international relations;
(c) damage to the economic interests of the United Kingdom or of any part
of the United Kingdom;
(d) damage caused by disclosure of commercially sensitive information.”
As can be seen, these provisions apply not only to public access, but to
disclosure and publication, and they are the principle reason why NGOs object to
the Inquiries Act.
As a result of these objections, this section of the Inquiries Act 2005 was subject to
review by the House of Lords Select Committee on the Inquiries Act. In their report
they stated:
“We believe that only the chairman should be allowed to restrict access to the
Inquiry by issuing a restriction order, for the limited reasons set out in section
25
19(3)–(5). We recommend that the power of the minister to issue a restriction
notice under section 19, restricting public access to an inquiry, should be abrogated.
The chairman’s power to issue a restriction order is sufficient.”66
The implementation of this recommendation would go some way towards
alleviating NGOs fears.
Participation
People who have a legitimate interest in the outcome of an inquiry, either because
they are victims or are likely to be criticised, can apply to become Core
Participants67 in the inquiry. Core Participant status normally entitles such parties
to legal representation at State expense, the right to be heard, and discovery of
documents and other evidence. On occasions when it is necessary to exclude the
public from an inquiry, Core Participants and their legal representatives are
normally, although not inevitably, allowed to remain in the hearing.
Redactions
Redaction is the process whereby sensitive or confidential information is
removed from a document - for instance a statement, a document to be placed
in evidence, or an inquiry report – to preserve confidentiality. Commonly this
will be indicated by the use of a phrase such as “[name and address redacted]”,
or by the physical obliteration of the information. It is good practice to indicate
clearly that an item of information has been redacted.
Use of Procedural Tools in the Inquiries
Rosemary Nelson Inquiry
Terms of Reference
On Tuesday 16th November 2004 the Secretary of State for Northern Ireland
announced the terms of reference for the Rosemary Nelson Inquiry:
“To inquire into the death of Rosemary Nelson with a view to determining
whether any wrongful act or omission by or within the Royal Ulster
Constabulary or Northern Ireland Office facilitated her death or obstructed
66
The House of Lords Select Committee on the Inquiries Act 2005 report of session (2012-2013)
published 11th March 2014; paragraph 206, page 64
67
‘Core Participants’ mean the same as ‘Full Participants’ for the purposes of this report.
26
the investigation of it, or whether attempts were made to do so; whether
any such act or omission was intentional or negligent; whether the
investigation of her death was carried out with due diligence; and to make
recommendations.”68
The Inquiry conducted further investigation after receiving this submission. The
Inquiry then requested that the terms of reference be amended, expressing the
view that they were not wide enough to allow the Inquiry to effectively conduct
its investigation.69 The Chairman explained that, more specifically, the terms of
reference should include ‘the Army or other state agency’ in its list of possible
wrongful actors.70 The terms were amended by the Secretary of State for
Northern Ireland on 24 March 2005 to include this phrase.71
The terms of reference did include the ‘acts and omissions’ of the RUC, NIO, Army
or other state agency, which could be interpreted as pertaining to the issue of
collusion. However, the terms did not go far enough regarding this issue; the full
definition of collusion72 given by Judge Cory was not explored in this context, and
this is significant in deciding whether the action or inaction of the government
agencies directly or indirectly contributed to Rosemary Nelson’s murder..73
68
See the Pat Finucane Centre website:
http://patfinucanecentre.org/cory/041116nio.html
69
‘Secretary of State Announces Changes to the Terms of Reference for the Rosemary Nelson
Inquiry’ Rosemary Nelson Inquiry Press Notice 05/02(24 March 2005):
http://www.rosemarynelsonInquiry.org/press-notices/2/
70
Chairman’s Initial Statement, Rosemary Nelson Inquiry opening hearing (19 April 2005):
http://webarchive.nationalarchives.gov.uk/20110612081947/http://www.rosemarynelsoninquiry.or
g/current-key-documents/4/
71
The amended terms of reference were as follows: “To inquire into the death of Rosemary Nelson
with a view to determining whether any wrongful act or omission by or within the Royal Ulster
Constabulary, Northern Ireland Office, Army or other State agency facilitated her death or
obstructed the investigation of it, or whether attempts were made to do so; whether any such act or
omission was intentional or negligent; whether the investigation of her death was carried out with
due diligence; and to make recommendations.”
72
We understand Collusion to mean the same as Judge Cory’s definition at pages 14-15,
paragraphs 4.27 – 4.34 in the ‘Cory Collusion Inquiry Report: Rosemary Nelson’ ;
http://cain.ulst.ac.uk/issues/collusion/cory/cory03nelson.pdf
73
Not exploring the full issue of collusion does not in itself result in a violation of Article 2 of the
European Convention on Human Rights. However, without the specific inclusion of collusion in the
terms of reference, the Inquiry is not able to closely examine the relationship between the State and
non-state actors. This inhibits the Inquiry from being able to determine whether an Article 2
violation occurred.
27
Public access
The full hearings of the Rosemary Nelson Inquiry commenced on Tuesday 15 th April
2008.74 In total, there were 130 days of full hearings, which completed on 24th June
2009 after closing submissions were made by various legal representatives on
behalf of witnesses and the Inquiry.
The Inquiry sat at the Interpoint building in Belfast. Although the hearings were
primarily held in public, the facility provided the ability to physically screen the
main part of the hearing chamber from the public gallery.75 This screening ensured
that witnesses who had been granted full anonymity - defined as screening of their
physical identity and granting them a cipher in place of their name - or partial
anonymity - where only the screens were in place - were able to testify without
concern for their safety. Additionally, the screens enabled members of the public to
remain in the Inquiry session to hear the testimony of these witnesses, without
knowing their identity.
However, perhaps the more pressing and more controversial matter was that the
Inquiry held completely closed sessions. Counsel to the Inquiry had suggested that
there was potential for these sessions and indicated that they were necessary to
investigate the reliability of the evidence with a witness.76
Recognising that the issue of closed hearings was contentious and discharged the
procedural obligations arising from Article 2 ECHR responsibilities, the Inquiry
afforded participants the opportunity to make submissions regarding closed
sessions. After reviewing the submissions, the Inquiry issued a general ruling. The
Inquiry Panel determined that it “must hear oral evidence in a closed hearing where
necessary to protect national security or minimize any risk to life.” The Panel
decided that the witness, the witness’ solicitor and/or one counsel “subject to those
persons wishing to be present and holding valid...security clearance,” one
representative of the relevant organisation whose information was the subject of
the hearing, and one solicitor and counsel for the relevant organisation would be
allowed to attend the closed hearing. The Panel recognised that it was necessary to
take steps to assist those individuals excluded from the closed hearings, so that
they may continue to participate effectively in the Inquiry. To this end, the Panel
indicated that it would remain flexible in relation to requests from other
participants to attend the closed hearings. Furthermore, the closed hearings would
only relate to evidence given by witnesses in public hearings, and would not include
new evidence. During the public session for such witnesses, the Panel would
indicate the subject matter for the closed session.77
74
th
‘Inquiry Starts Full Hearings’, Rosemary Nelson Inquiry Press Notice 08/01, 15 April 2008:
http://www.rosemarynelsonInquiry.org/press-notices/16/
75
For a full discussion of how anonymity and screening played out in the Inquiry, please see page 41.
76
Transcript of proceedings, Day 40 of Rosemary Nelson Inquiry, page 26, lines 15 – 18:
http://webarchive.nationalarchives.gov.uk/20110612081947/http://www.rosemarynelsoninquiry.or
g/transcripts/302/
77
Transcript Day 63 of Rosemary Nelson Inquiry, pages 1 – 4:
28
Several closed sessions took place during the course of the Inquiry, which received
passing reference during testimony in the open sessions.78 In early February 2009,
Counsel to the Inquiry made a statement of the necessity to hold closed sessions of
which no public record of proceedings would be released but in which Core
Participants would be permitted to be present, suggesting a possible modification
to the original ruling on closed sessions by the Panel. Following this statement,
there were several closed sessions of this type held in February and March
2009.79Though recognising the existence of these closed record-less hearings seems
to be proving a negative - there is no record of these closed sessions to prove that
they occurred, - witnesses during this time referred to issues not being appropriate
for discussion in ‘open session’ and made references to closed sessions thereby
leaving a trace of evidence for their existence.80
For a full list of screened witnesses and closed hearings, please refer to Appendix 2.
http://webarchive.nationalarchives.gov.uk/20110612081947/http://www.rosemarynelsoninquiry.or
g/transcripts/322/
78
For example, on day 82 of the Inquiry, prompted by a panel member, a witness suggested a closed
session: “Sir Anthony Burden: Mr Skelton referred you to three intelligence reports: one concerning
Rosemary Nelson's intention to contact the Secretary of State re the Drumcree parade; secondly,
encouraging people to make complaints at the community centre; and the third, an offer from
American lawyers to fly her to the United States to review statements. After that, you were quite
emphatic in your own personal view that she had firm PIRA sympathies. Are you personally in
possession of further intelligence which would support that statement that can either be presented
in open session here or, probably more appropriately, in a closed session? A. I think I probably could
explore that further within a closed session.”
Transcript of Day 82 of Rosemary Nelson Inquiry, pages 94 - 95:
http://webarchive.nationalarchives.gov.uk/20110612081947/http://www.rosemarynelsoninquiry.or
g/transcripts/345/
Similarly, a closed session was held on day 84 of the Inquiry, with no public hearings taking place
that day. Core participants’ legal teams were present for some of the evidence heard on day 84;
however there was a closed session later that day in which only the witness, the witness’ legal
representatives and a person described as the ‘owner’ of the evidence were present. (The ‘owner’ of
the evidence would have been the organisation about which the witness was giving evidence.) The
Inquiry Panel decided not to publish any of the transcripts or evidence of proceedings on day 84 but
CAJ was informed that legal representatives did have access to a transcript covering the section of
proceedings in which legal representatives of full legal participants were present. The Inquiry has
placed a notice stating that no transcript will be published for hearings held on day 84 on the
transcripts section of the Inquiry website.
79
See table in appendix 2. Over half of all the closed sessions that we have recorded occurred after
this date.
80
A typical example of this is the following interchange between Inquiry Counsel and a witness on
day 111 of the Inquiry:
“Q. Okay. Let's turn to the question of Covert Human Intelligence Source identities, which became a
real issue between the Murder Investigation Team and Special Branch in August 2000. We see the
request from Mr Provost of the Murder Investigation Team at RNI-622 – A. I'm sorry, but I
understood this is what we were going to do in the closed session by agreement yesterday.”
Transcript of Day 111 of Rosemary Nelson Inquiry, pages 21 -22:
http://webarchive.nationalarchives.gov.uk/20110612081947/http://www.rosemarynelsoninquiry.or
g/transcripts/373/
29
Participation
For a list of Core Participants81 and their legal representatives, please see Appendix
8.
BIRW applied for Core Participant status in August 2007 on the grounds that they
had assisted Rosemary Nelson before her death and continued to protect her
interests following her murder, and therefore had an interest in ensuring that she
received an effective, Article 2 compliant investigation. They also argued that they
had in-depth knowledge of her case and unique expertise on the issue of
intimidation of defence lawyers in Northern Ireland. Their application was refused.
.
A late applicant for Core Participant status was the intelligence service, MI582. They
were granted this status in September 2006. It was never apparent what their
interest was in Rosemary Nelson’s case.
Robert Hamill Inquiry
Terms of Reference
On 16th November 2004, the Secretary of State for Northern Ireland announced its
terms of reference for the Robert Hamill Inquiry to be the following:
“To inquire into the death of Robert Hamill with a view to determining
whether any wrongful act or omission by or within the Royal Ulster
Constabulary facilitated his death or obstructed the investigation of it, or
whether attempts were made to do so; whether any such act or
omission was intentional or negligent; whether the investigation of his
death was carried out with due diligence; and to make
recommendations.”83
In January 2007, before the Inquiry began full hearings, the Inquiry requested
that the terms of reference be expanded to include analysis of the role that the
Director of Public Prosecutions (DPP) played in the investigation into Robert
Hamill’s death. Secretary of State for Northern Ireland, Shaun Woodward MP,
rejected the request.84
82
‘Inquiry grants Core Participant Status the to the UK Security Service’, Rosemary Nelson Inquiry
Press Notice 06.01 (26 September 2006)
83
http://www.roberthamillinquiry.org/
84
“I have given the request to extend the terms of reference to the Inquiry very careful and detailed
consideration . . . I was considering whether there was an issue that needed to be looked at by a
public Inquiry. [My independent Counsel’s] advice was that the decisions taken by the DPP and his
30
The Hamill family sought a judicial review of his decision, seeking to subject to
scrutiny the decisions made by the Director of the Public Prosecution Service
(PPS), his servants or agents and those advising him.85The family further claimed
that there was potential bias in the decision of the Minister.86 Mr Justice
Weatherup upheld the family’s complaint regarding the test applied by the
Secretary of State (which was that the DPP’s decisions had been reasonable),
noting that it “did not correspond to the test of public interest”87under section
15 (6) of the Inquiries Act 2005.88
The Secretary of State for Northern Ireland subsequently determined that the
terms of reference would not be changed, as the decisions of the DPP, and his
staff, was already covered by the existing terms of reference.89 Interpretation of
the terms of reference in this way allowed for analysis of decisions of the DPP
which affected the investigation into Robert Hamill’s death but did not allow for
consideration or criticism of prosecutorial decisions made by the DPP.90
Counsel to the Inquiry subsequently clarified that there were two discrete issues
to be dealt with regarding the DPP: (1) “Whether the DPP and his office acted
with due diligence in relation to those charged with the murder; and (2) Did [the
Director] and his officers act with due diligence in relation specifically to Robert
Atkinson [the officer accused of tipping off a suspect].”91
Public Access
The preliminary hearing of the Robert Hamill Inquiry was held on 24 May 2005.92
Full hearings of the Inquiry commenced on 13 th January 2009.93 The Inquiry heard
staff were reasonable; that there was no basis for suggesting there were additional steps that should
have been taken; and that the case was assessed both objectively and professionally. I have,
therefore, concluded that in all the circumstances there are no justifiable grounds to extend the
terms of reference.” ‘Woodward decides against extending Hamill inquest terms of reference,’ NIO
Latest News (20 March 2008).
85
An Application for Judicial Review by Jessica Hamill [2008] NIQB 73.
86
One of the advisors to the Secretary of State, David Perry QC, had also been involved in the
original prosecution decision. ‘Inquiries Update’, Just News, CAJ (July/August 2008) page 4.
87
An Application for Judicial Review by Jessica Hamill [2008] NIQB 73, paragraph 37.
88
Section 15 of the Inquiries Act 2005 provides that:
“6) The Minister may at any time after setting out the terms of reference under this section amend
them if he considers that the public interest so requires.
(7) The Minister must consult the chairman before...
(b) Amending the terms of reference under subsection (6).”
89
‘No Change to Hamill Inquiry’s Terms of Reference,’ NIO Latest News(5 November 2008).
90
‘Terms of Reference Decision by the Secretary of State for Northern Ireland,’ Robert Hamill Inquiry
Press Notice 013 ( 5 November 2008):
http://www.roberthamillInquiry.org/press/13/
91
Transcript of Day 56, Robert Hamill Inquiry, page 4, lines 18 – 22:
http://www.roberthamillinquiry.org/the-public-hearings/transcripts?view_day=56
92
At the preliminary hearings, the Inquiry Chairman explained how the Inquiry would undertake its
work. He also took applications for Representation and Funding, though the funding decision was
ultimately determined by the Secretary of State for Northern Ireland.
31
evidence over 77 days of full hearings, which concluded on 17 th December 2009
after closing submissions were made by various legal representatives on behalf of
witnesses, the NGO observers94, and the Counsel to the Inquiry.
The Inquiry sat in session in the Interpoint building in Belfast. Though the hearings
were primarily held in public, there were a number of occasions where the Inquiry
panel chose to restrict public access.
One such key period was after the murder of two soldiers at Massereene Barracks
in County Antrim and the murder of PSNI Constable Carroll in Craigavon in March
2009. In the immediate aftermath of these murders the Inquiry temporarily granted
all police officers anonymity pending the results of risk assessments by the security
forces regarding the potential risk to their safety if they were to give evidence in
public. This assessment involved the presence of a representative of the PSNI
during hearings. After hearing the evidence of each police officer, the Chair
assessed whether such evidence placed any officers at risk if it was made public.
When the results of group risk assessments were made available to the Inquiry,
anonymity was retrospectively removed from those officers who were found not to
be at an increased risk by giving their evidence publicly. This procedure appears to
have been the best option - despite the otherwise questionable blanket immunity because individual risk assessments would have taken nine months to complete,
during which time the Inquiry would have had to halt and delay its work while it
awaited the outcome of such assessments. As a result, and with the agreement of
the Hamill family who were allowed to attend these closed hearings, the Inquiry
was able to continue its work as scheduled and without delay by virtue of the group
risk assessment.
The layout of the Inquiry chamber made it impractical to screen the witness from
the public gallery. Consequently the Inquiry chamber was closed to members of the
public on the days that an anonymous witness was giving evidence. 95 Legal
representatives of the parties to the Inquiry, however, were permitted to remain in
the chamber during such hearings. Additionally, the Inquiry released transcripts of
the closed hearings on the Inquiry website.96
93
‘The Robert Hamill Inquiry Will Commence Its Full Public Hearings at the Interpoint Centre in
Belfast Today,’ Robert Hamill Inquiry Press Notice 014 (12 January 2009).
94
The NGO observers—Committee on the Administration of Justice and British Irish RIGHTS
WATCH—made a joint submission at the request of the Inquiry. This practice was unique to the
Robert Hamill Inquiry.
95
Informal discussion with Inquiry staff indicated that whilst it was not logistically impossible to
screen anonymous witnesses from view, to do so would have been impractical considering the cost
involved.
96
On another occasion a key witness – Tracey Clarke (also known as Tracey Hanvey), previously the
partner of former suspect Allister Hanvey – who had not been granted anonymity, was permitted to
give evidence without members of the public being present. The Inquiry allowed a number of TJI
associates, a project observer and the project co-ordinator to listen to a live audio feed of this
hearing from the Inquiry press room which was regularly attended by members of the media and in
which laptops were permitted. In addition, the Inquiry also made the transcript of Tracey Clarke’s
evidence available on their website.
32
On occasion, closed hearings were recorded or announced during Inquiry hearings;
however, the content of these closed hearings was the consideration of applications
from various legal representatives which, due to the sensitive subjects being
discussed, could not take place in public session without defeating their own
objects.
A list of screened witnesses and closed hearings is contained in Appendix 3.
Participation
For a list of Core Participants and their legal representatives, please see Appendix 9.
Billy Wright Inquiry
Terms of Reference
On 16th November 2004, the Secretary of State for Northern Ireland announced the
terms of reference for the Billy Wright Inquiry:
“To inquire into the death of Billy Wright with a view to determining whether
any wrongful act or omission by or within the prison authorities or other
state agencies facilitated his death, or whether attempts were made to do so;
whether any such act or omission was intentional or negligent; and to make
recommendations.”97
In formulating the terms of reference, the Inquiry Panel consulted interested
parties - including the solicitors representing Billy Wright’s family - and all
comments were considered. After the terms of reference were drafted, both the
Panel and the parties considered them and they were deemed adequate.
Judge Cory’s report was premised on the assertion that there should be a public
inquiry as a result of “evidence of collusive acts”. When the Secretary of State for
Northern Ireland released the terms of reference, he emphasised that Judge Cory
used a broad definition of collusion. He explained that the terms of reference for
this Inquiry had been deliberately drawn to allow the Inquiry to consider both the
allegations of collusion that had been made as well as any issues of possible
negligence. Though the word ”collusion” does not appear in the terms of
reference, the Secretary of State for Northern Ireland’s intention was that the issue
of collusion should be considered in relation to the evidence in making the Panel’s
final determination and report.98
97
http://webarchive.nationalarchives.gov.uk/20101210142120/http://www.billywrightinquiry.org
“When he announced the Inquiry’s Terms of Reference and the Panel members on 16 November
2004 the SOSNI [Secretary of State for Northern Ireland] said the Terms of Reference had been
deliberately drawn to allow the Inquiry to consider both the allegations of collusion that had been
98
33
Nonetheless, the Billy Wright Inquiry did not adopt Judge Cory’s definition, but
chose to use a narrower definition: “For our part we consider that the essence of
collusion is an agreement or arrangement between individuals or organisations,
including government departments, to achieve an unlawful or improper purpose.
The purpose may also be fraudulent or underhand.”99 They then went on to find
there had been no collusion.100
Public Access
After preliminary hearings on 22nd June 2005 and 13th December 2005, the Billy
Wright Inquiry commenced full hearings on 30th October 2006. The Inquiry heard
evidence over 156 days of full hearings, which concluded on 2nd July 2009 after
closing submissions were made by various legal representatives on behalf of the
witnesses and the Inquiry.
The Inquiry sat in session in the Banbridge Court House. The hearings were
primarily held in public. Members of the public, including our team of observers,
could gain access either to the main Inquiry chamber to observe and listen to the
oral evidence provided by witnesses called to the Inquiry, or to visual and/or audio
broadcast of proceedings in a separate room at Banbridge Court House.
There were a small number of occasions, however, in which the Inquiry Panel chose
to restrict public access, for example when a witness who had been granted
anonymity was giving evidence. On these occasions, the facility provided the ability
to physically screen the main part of the hearing chamber from a reduced section of
the public gallery. This screening ensured that the witnesses were able to testify
anonymously, while allowing members of the public to remain in the Inquiry session
so as to hear the testimony of these witnesses. Additionally, there was access in a
separate room to an audio feed of proceedings.
There were also a small number of occasions in which the Inquiry held ‘closed’
sessions.101 The Inquiry Panel, Inquiry Counsel, the witness, and the witness’ own
legal representatives were the only parties allowed to enter the chamber for these
sessions. Other parties to the Inquiry, including the victim’s family and their legal
teams, were not allowed in. On these days, there was no record of evidence made
publicly available. The Inquiry provided a brief summary of issues covered in these
closed sessions to legal participants and, upon request, to CAJ and BIRW. However,
these summaries have not been made available on the Inquiry website.
made in this case and the issues of possible negligence” without “having to resort to the words
‘collusion’ or ‘collusive’.” Billy Wright Inquiry, Final Report (2010), paragraphs1.23and 1.34.
99
Billy Wright Inquiry, Final Report, (2010), paragraph 1.33.
100
Ibid, paragraph 16.4.
101
On day 134 of the Billy Wright Inquiry, four witnesses gave evidence entirely in closed session as
did two further witnesses on day 138; therefore none of their evidence was heard in public and
there is no transcript – just one paragraph offering a brief description of what was generally
discussed was provided in respect of each witness. Similarly, there were two witnesses on day 137,
one on day 138 and one on day 142 who gave their evidence in closed session, in addition to
providing some of their evidence in open hearing.
34
A list of screened witnesses and closed hearings is contained in Appendix 1.
Participation
For a list of Core Participants and their legal representatives, please see Appendix 7.
All three Inquiries
Redaction
A full list of reactions to transcripts in all three Inquiries is contained in Appendices
4 to 6. The Inquiries compared as follows:
Inquiry
Billy Wright
Rosemary
Nelson
Robert Hamill
Names redacted
136
74
34
Lines redacted
3
396
Words redacted
13
403
22
38
The Rosemary Nelson Inquiry made far more textual redactions than either of the
other two Inquiries. Although the Billy Wright Inquiry redacted many more names
than the other Inquiries, it made the fewest textual redactions. The Robert Hamill
Inquiry redacted fewer names, and relatively little of the text, but it made more
textual redactions than the Billy Wright Inquiry.
Public Access
The insistence on the part of all three inquiries that everyone left their mobile
telephones, and initially their laptops outside the inquiry area were particularly
irksome for reporters, for whom these items are the tools of their trade, and meant
that there was less reporting than there could or should have been of these
important inquiries. Restrictions on journalists’ laptops were lifted.
The handling of the publication of the inquiry reports was also problematic. Family
members, their lawyers and journalists were “locked down” without their mobile
telephones and given a short time (typically a couple of hours for families and an
hour for journalists) to try to digest lengthy reports, just as the Secretary of State
for Northern Ireland was making a statement about the report in the House of
Commons. This meant that the government’s point of view was always treated as
breaking news. In the case of Rosemary Nelson Inquiry Report, the Secretary of
State’s stated that there had been no collusion, whereas the Inquiry’s actual
findings were more complex and open to interpretation.
35
Powers Used under the Inquiries Act 2005 (Robert Hamill and Billy Wright
Inquiries102)
Restriction Notices and Orders
Restriction notices and orders limit the public access to hearings at a public Inquiry.
Restriction Notices are issued by the Secretary of State for Northern Ireland to the
Chairman any time before the end of the Inquiry. Restriction Orders are issued by
the Chairman during the course of the Inquiry. They are issued under s.19 of the
Inquiries Act 2005 which either (1) impose a restriction on attendance at an inquiry
or at any particular part of an inquiry or (2) prevent disclosure or publication of any
evidence or documents given, produced, or provided to an inquiry.103
On 15-17 May 2006, the Robert Hamill Inquiry held closed sessions in the Europa
Hotel in Belfast, during which they considered applications for anonymity. All
external parties were excluded from the hearings.104 The Restriction Order applied
to these hearings, but there is no record of the order on the website and so the
content of the order is unknown.105
On 23rd March 2009 the Billy Wright Inquiry issued a Restriction Order prohibiting
the publication or disclosure by any person of the evidence given that day to the
Inquiry by Witness ZBS, who was the head of RUC Special Branch from 1995 to
1997.106 The following day, 24th March, the Inquiry issued a second Restriction
Order prohibiting the publication or disclosure of Witness ZBS’ evidence except as it
appears in the redacted transcript published on the Inquiry’s website.107 No reasons
were given for the issuing of the Order.
A third Restriction Order was issued on 26th March 2009, prohibiting the publication
of evidence given on 5th and 6th February 2009 by Vincent McFadden and Graham
Taylor - two members of the Stevens enquiry team - and by PSNI Assistant Chief
Constable Alistair Finlay.108 Transcripts of their evidence originally appeared on the
Inquiry’s website; however, they were removed quickly and have not reappeared.
These are the only two days of the Billy Wright Inquiry for which there are no
transcripts available.
102
Since the Rosemary Nelson Inquiry was not under the Inquiries Act, Restriction Orders did not
apply.
103
For the full text of s. 19, please see pages 19 - 20 above.
104
For example, the NGO observation team was not permitted to attend.
105
The NGOs were concerned about the lack of transparency of the content of both the Restriction
Order and the ruling on anonymity. While we recognise the need for caution in relation to
anonymity applications, this lack of transparency is uncharacteristic of the Robert Hamill Inquiry.
106
The Restriction Order was issued even though Witness ZBS gave his evidence in open court.
107
This means that anyone present in court may not disclose what is contained in those parts of the
transcript of Witness ZBS’ evidence that have been redacted.
108
Their evidence had also been given in open court and reported in the media.
36
After representations by CAJ and BIRW, the Inquiry did agree to make redacted
hard copies of the transcripts available for perusal on their premises, and issued an
amended Order to that effect on 21st May 2009. However, they failed to agree any
arrangements for viewing while the Inquiry was still extant. . The Inquiry gave “the
public interest” as the reason for making the Order, in particular the requirements
of Article 2 of the European Convention on Human Rights, which protects the right
to life, and the risk of damage to national security.
On 26th October 2010 a fifth Restriction Order prohibited the disclosure of any
material redacted by the Inquiry, whether contained in evidence or transcripts. The
reason given was that the Order was “conducive to the Inquiry fulfilling its terms of
reference.” The sixth and final Order was made on the same day, 26 th October
2010, and prohibited the disclosure or publication of certain documents and any
information contained within.109
Interim Reports
The Robert Hamill Inquiry issued an Interim Report after the conclusion of the full
hearings. This brief Interim Report, published on 12th March 2010, recommended
“that the Public Prosecution Service for Northern Ireland should reconsider urgently
the decision, taken by the Northern Ireland Director of Public Prosecutions (DPP) in
March 2004, to discontinue the prosecution of former Royal Ulster Constabulary
(RUC) Reserve Constable Robert Atkinson for conspiracy to pervert the course of
justice”.110 Though the report was delivered to the Secretary of State for Northern
Ireland on 29th January 2010, the PPS did not announce the prosecutions - of two
individuals for conspiracy to pervert the course of justice and a third for intent to
pervert the course of justice - until 21st December 2010111. In October 2012,
proceedings were adjourned for the PPSNI to complete further enquiriesIn July
2013 the proceedings were then stayed by the District Judge due to the perceived
unreliability of key witnesses and the abuse of process. Following this the PPSNI
sought Judicial Review. The PPSNI’s bid to reinstate criminal proceedings was
launched in October 2013, and finally on 10th March 2014 the High Court quashed
the decision to stay criminal proceedings against the accused. The case has now
been remitted back for hearing in front of a different District Judge.
109
Documents included in the Restriction Order are:
“1. Documents underlying the ‘Summary of Security Service intelligence documents relating to the
INLA threat against Billy Wright’ which is scanned on the Inquiry’s evidence database as SS01 0218,
nd
in particular a Contact Note dated 21 April 1997, a Telex dated 22 April 1997 and a NIIR [Northern
th
Ireland Intelligence Report] dated 24 April 1997, provided to the Inquiry by the Security Service.
2. Documents underlying ‘Summary by BWI of Security Service and Ministry of Defence information
relating to the murder of Billy Wright’ which is scanned on the Inquiry’s evidence database as SS01
0358, in particular a number of intelligence documents dated December 1997 and January 1998
provided to the Inquiry by those Departments.”
110
http://www.roberthamillInquiry.org/content/interim/?keywords=interim+report
111
http://www.roberthamillinquiry.org/press/28/
37
Information about the case can be found on the Robert Hamill Inquiry website.112
The Billy Wright Inquiry issued its Interim Report “Position Paper on the Police
Service of Northern Ireland’s Response to Requests for Information” on 21st January
2008.113 The report strongly criticised the PSNI’s failure to provide documents
sought by the Inquiry. The report pinpointed 12 areas of concern, particularly
focusing on the lack of material concerning: the decision to transfer Billy Wright and
the LVF to the Maze; the transfer of Christopher McWilliams and John Kenneway
(who were convicted of the murder of Billy Wright) to H block 6 in the Maze; the
INLA threat to Billy Wright were he to move to H Block 6 in the Maze; and the
murder of Billy Wright.114
Referral to PSNI
On 11th March 2009 the Robert Hamill Inquiry requested that the Chief Constable of
the PSNI investigate whether Rory Robinson, a witness to the Inquiry, had
committed perjury while giving his evidence. Rory Robinson claimed that he was
not able to remember any salient point in relation to the murder of Robert Hamill,
for which he had been arrested although the charges were later dropped, nor was
he able to remember much about his personal life.
Compulsion of Witnesses and Evidence
Both the Billy Wright Inquiry and the Robert Hamill Inquiry sought conversion to the
Inquiries Act 2005 because the Act conferred on them greater powers of
compulsion of witnesses. Under s. 21 of the Act, the Chair can compel a witness to
attend or produce a document to be entered into evidence. Any failure to comply
can be referred to the High Court for prosecution.115
The Billy Wright Inquiry served s. 21 notices on all principal agencies from which it
required disclosure once it had been converted to an inquiry under the Inquiries Act
on 23 November 2005.116Such notices were served between November 2005 and
112
http://www.roberthamillinquiry.org/press
Billy Wright Inquiry, Position Paper on PSNI’s Response to Requests for Information (2008),
available at
http://webarchive.nationalarchives.gov.uk/20101210142120/http://www.billywrightinquiry.org/file
store/documents/Position_Paper_on_PSNIs_response_to_requests_for_information.pdf
114
The PSNI also claimed that they did not have any intelligence material or information pertinent to
the policing of Drumcree during 1996-1997, the stability of the IRA ceasefire, and the Combined
Loyalist Military Command’s threat to Billy Wright.
115
This is important because it enables such inquiries to conform to the requirements of the
European Convention on Human Rights to conduct an effective investigation.
116
Report of the Billy Wright Inquiry, paragraph 2.7
113
38
January 2006.117The Inquiry served a number of further notices on various bodies
during the course of its investigation. These were either in relation to specific
material or sometimes to obtain information that would have been subject to data
protection.118 As has been seen above, the Inquiry was particularly dissatisfied with
disclosure by the police.
So far as we can tell, the Billy Wright Inquiry did not use its powers to compel any
witness to attend.
The Robert Hamill Inquiry used these powers on a number of occasions, most
notably in the proceedings involving Tracey Clarke. A notice was issued to her on
27th January 2009 compelling her to attend the Inquiry the following day. She failed
to comply. In March 2009 the Chair referred the matter to the High Court under
s.36 with a request that they commence civil enforcement proceedings against her.
The High Court in Belfast had a hearing on 25th August 2009, and at the door of the
Court Ms Clarke’s Counsel informed the court that she would be willing to give
evidence at the earliest opportunity.119
In the case of the Rosemary Nelson Inquiry, s.44 (3) of the Police (Northern Ireland)
Act 1998, under which the Inquiry was established, incorporated the provisions of
the Health and Personal Social Services Safety Inquiries (Northern Ireland) Order
1972. Although repealed for other purposes the provisions remained in force for
Inquiries under the Police (Northern Ireland) Act 1998.120 The powers defined under
the Order require any person "to attend....to give evidence or to produce any books
or documents in their custody or control." Wilful failure to respond was an offence
punishable with a fine and/or a maximum 3 months imprisonment.
One or two witnesses declined to give oral evidence before the Inquiry, although
some made written statements. There were no cases in which the Inquiry
considered there was an offence worth reporting.
117
Ibid, paragraph 2.9.
Ibid, paragraph 2.12.
119
http://www.roberthamillInquiry.org/press/22
120
The Police (Northern Ireland) Act was itself repealed by the Inquiries Act 2005, but the Rosemary
Nelson Inquiry continued as if it were still in force.
118
39
5. Article 2 of the European Convention on Human Rights: The Right to Life
Introduction
Article 2 is a fundamental right under the European Convention on Human Rights
(ECHR), which states that “everyone’s right to life shall be protected by law.” It
further states that “no one shall be deprived of his [or her] life intentionally”.121 The
state has both negative and positive substantive obligations to protect the life of its
citizens, and in certain circumstances, where the state may be implicated in the
death; it has a procedural obligation arising from Article 2 to effectively investigate
it.
The European Court of Human Rights first established this investigative obligation in
McCann & Ors v. UK122 stating that Article 2:
“requires by implication that there should be some form of effective official
investigation when individuals have been killed as a result of the use of force by
inter alios, agents of the State”.123
This was developed further in a number of cases, some of which emanated from
Northern Ireland124, which set out the minimum requirements of an effective
investigation.
Although the Inquiries took Article 2 into consideration, the obligations of Article 2
were not considered binding on them given that the deaths which were the subject
of the Inquiries pre-dated the incorporation of the ECHR into domestic law through
the Human Rights Act 1998125.
121
“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction of a crime
for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it
results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
122
[1995] ECHR 31.
123
Ibid, paragraph 161.
124
Jordan v UK [2001] ECHR 327; Kelly & Ors v. UK [2001] ECHR 328; McKerr v. UK [2001] ECHR 329;
Shanaghan v. UK [2001] ECHR 330; McShane v. UK [2002] ECHR 469; Finucane v. UK [2003] ECHR.
328
125
Which came into force on 2 October 2000
40
In May 2011, however, the Supreme Court in Re McCaughey & Another126held that
in certain circumstances - where a significant proportion of the procedural steps
would take place after the Human Rights Act came into force - Article 2 imposed a
separate and autonomous duty in relation to the obligation to carry out an effective
investigation into a death127. . There is no temporal restriction on the obligation
other than that the majority of the procedural steps take place after the Convention
has come into force. “Thus if a State decides to carry out those procedural steps
long after the date of the death, they must have the attributes that Article 2
requires.”128 The Court suggested that this was an international obligation - if an
inquiry did not meet the requirements of Article 2, it would be possible for the
appellant to make a claim to the Strasbourg Court against the UK.
All three of these Inquiry hearings were completed before this judgment was
delivered and as such were not directly affected by it. However, the judgment can
nonetheless be applied in considering the question of whether the Inquiries
themselves provided an Article 2-compliant effective investigation.
Article 2 is not limited to protection for victims, however. The state must also
ensure that witnesses’ right to life is protected through the course of such
proceedings. Their right to life is infringed if, through their evidence, they are
threatened with substantial bodily injury or death. Witnesses are entitled to give
evidence openly and truthfully without concern for retaliation or loss of their life.
When considering its obligations under the ECHR, authorities are required to
interpret their provisions in light of other relevant international standards and their
authoritative interpretation by competent international treaty bodies.129 A number
of such ‘soft law’ standards130 apply to state investigations into the use of lethal
force in suspicious circumstances. This includes standards relating to preventing
impunity where state agencies (in relation to the actions of their agents or the use
of non-state actors to carry out crimes) are not held accountable for human rights
126
In the Matter of an Application by Brigid McCaughey and Another for Judicial Review (Northern
Ireland) [2011] UKSC 20; this was confirmed in the ECtHR judgement: McCaughey & Ors v UK.
127
Citing the ECtHR Grand Chamber judgment in Šilih v. Slovenia (2009) 49 E.H.R.R. 37; paragraph
159
128
Ibid, paragraph 50.
129
See A and Others v UK [2005] UKHL 71, §29 referring to Article 31 of the Vienna Convention on
the Law of Treaties reflecting principles of customary international law, provides (in article
31(3)(c))that in interpreting a treaty there shall be taken into account together with the context, any
relevant rules of international law applicable in the relations between the parties. The European
Court has recognised this principle see Demir and Baykara v Turkey [2008] ECHR 1345 §85.
130
Article 6 of the International Covenant on Civil and Political Rights; The UN Principles on the
Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions; The Model
Protocol for a Legal Investigation of Extra-Legal , Arbitrary and Summary Executions (‘Minnesota
Protocol’) as set out in the UN Manual on the Effective Prevention and Investigation of Extra-Legal,
Arbitrary and Summary Executions; The UN Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power; The UN Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations
of International Humanitarian Law; The UN Updated Set of Principles for the Protection and
Promotion of Human Rights through Action to Combat Impunity.
41
abuses, through, for example, obstructing effective police investigations,
conducting ‘sham’ investigations, or dropping prosecutions when state agents are
involved. The UN Updated Set of Principles for the Protection and Promotion of
Human Rights through Action to Combat Impunity, define impunity as:
“ ...the impossibility, de jure or de facto, of bringing perpetrators of
violations to account –whether in criminal, civil, administrative or
disciplinary proceedings – since they are not subject to any inquiry that
might lead to their being accused, arrested, tried and, if found guilty,
sentenced to appropriate penalties, and to making reparations to their
victims.”
The Principles affirm that ‘full and effective exercise of the right to the truth
provides a vital safeguard against the recurrence of violations’ and set out a duty on
the state to preserve archives and other evidence which may concern human rights
violations, and call for sanctions for any ‘removal, destruction, concealment or
falsification’ of records, particularly if this is done with a view to ensuring the
impunity of perpetrators of human rights violations. 131 There are also
responsibilities for ‘prompt, thorough, independent and impartial investigations’ of
human rights violations.132 In relation to preventing violations the Principles outline
that states:
“...must undertake institutional reforms and other measures necessary to
ensure respect for the rule of law, foster and sustain a culture of respect for
human rights, and restore or establish public trust in government
institutions.”133
If a mechanism of justice - be it an investigation, inquiry, or trial - determines that
public officials or other agents acting in an official or quasi-official capacity have
violated national criminal laws, the victims should receive just compensation from
the State.134
Right to Life of Victims
Article 2 of the European Convention on Human Rights (ECHR) imposes an
obligation on the State to refrain from unlawful deprivation of life. This obligation
requires the State to protect individuals from State action, to take affirmative steps
131
Ibid, principles 3 & 14
Ibid, principles 19 and 27
133
Ibid, principle 35
134
Principle 11, The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power,
http://www.ohchr.org/EN/ProfessionalInterest/Pages/VictimsOfCrimeAndAbuseOfPower.aspx
132
42
to prevent avoidable loss of life as a result of non-state actors, and to investigate
suspicious deaths.135
As a result of the positive obligation to investigate suspicious deaths, victims retain
their Article 2 rights after death.136Although the State can no longer take steps to
protect the individual, it is required to provide an effective investigation.
This investigation must be able to establish the facts surrounding the death of each
individual victim and determine whether the State breached any of its positive
duties.137 This obligation to investigate is a general obligation. It does not matter
whether the killing was undertaken by state forces or by others. The State must
begin the investigation upon becoming aware of the death and must carry it out in
a reasonably prompt manner.138
It is this positive obligation to investigate which informs our analysis of the Robert
Hamill, Billy Wright and Rosemary Nelson Inquiries.
There have been varying opinions as to what factors constitute the basic
requirements for public inquiry compliance with Article 2. Judge Cory established
the basic requirements of a public inquiry as:
“… an independent commissioner or panel of commissioners; the tribunal
should have full power to subpoena witnesses and documents together with all
the powers usually exercised by a commissioner in a public inquiry; the tribunal
135
See, e.g., Jordan v. United Kingdom (2003) 37 EHRR 52; Finucane v. United Kingdom (2003) 37
EHRR 29; Kelly v. United Kingdom, App 30054/96 (4 May 2001) [2001] Inquest Law Review 125;
McKerr v. United Kingdom (2002) 34 EHRR 553; Shanaghan v United Kingdom, App 37715/97 (4 May
2001) [2001] Inquest Law Review 149; and McShane v United Kingdom (2002) 35 EHRR 23).
136
Even after death, victims have rights under Article 2 – specifically, the right for an investigation of
their death. In 2001, the European Court of Human Rights issued judgment in four cases: Jordan,
Kelly, McKerr, and Shanaghan v. United Kingdom, unanimously deciding that the State had failed to
protect the right to life of twelve persons by failing to carry out an effective and thorough
investigation following their deaths. The cases of Jordan, Kelly, and McKerr involved members of
paramilitary groups and a civilian killed by security forces. Shanaghan was killed by Loyalist
paramilitaries with the alleged active collusion of the State. The decisions in all four cases extended
the jurisprudential interpretation of Article 2 by requiring the State to move beyond negative
enforcement, involving restraint in the use of lethal force, to positive enforcement, involving
establishing adequate mechanisms for accountability after a killing by an agent of the State. All four
judgments reinforced the need for an “effective official investigation”. The facts of each case were
slightly different, and the basis for the court’s finding that each investigation in question had been
inadequate was slightly different. However, in summary, the court found that the following types of
deficits gave rise to an Article 2 violation: lack of independence given that the investigators of the
death (e.g. RUC) were in a hierarchical relationship with those who had done the killing (e.g. the
British Army and RUC); the failure by the Director of Public Prosecutions to give public reasons for
decisions not to prosecute; and the inadequacy of the inquest system, on several grounds, as an
accountability mechanism. The key to an official investigation being “effective” was its capacity to
produce outcomes, namely, establishing the facts concerning a death, but also being capable of
leading to a determination of whether force was justified under the circumstances. The decisions,
therefore, provide a basis for requiring Article 2-compliant investigations in a potentially large
number of cases spanning the conflict.
137
Aidan O'Neill QC, The European Court and the Duty to Investigate Deaths, The Journal Online (21
September 2009), available at: http://www.journalonline.co.uk/Extras/1007024.aspx
138
Yasa v. Turkey (63/1997/847/1054) Strasbourg, 2 September 1998.
43
should select its own counsel who should have all the powers usually associated
with counsel appointed to act for a commission or tribunal of public inquiry; the
tribunal should also be empowered to engage investigators who might be police
officers or retired police officers to carry out such investigative or other tasks as
may be deemed essential to the work of the tribunal; the hearings, to the extent
possible, should be held in public; and the findings and recommendations of the
Commissioners should be in writing and made public.”139
He later clarified that the type of public inquiry he had in mind was an inquiry under
the Tribunals of Inquiry (Evidence) Act 1921, which at the time he produced his
reports has not been superseded by the Inquiries Act 2005.140
In July 2004, the Secretary of State for Northern Ireland responded to Judge Cory’s
requirements by setting out his own list of general principles which he deemed
necessary to the establishment and conduct of the Inquiries: independence;
transparency, consistency with the interest of justice and national security; fairness
and respect for individuals; power to seek to establish the facts; and access to
necessary resources and avoidance of unnecessary expenditure.141
Case law has determined the status of principles which constitute the requirements
for Article 2 compliance. In order to meet the Article 2 standard and be considered
effective, an investigation must comply with the following principles:
“… deprivations of life must be subjected to the most careful scrutiny by the
state, taking into consideration all the surrounding circumstances relevant to
the death; the authorities must have taken all reasonable steps available to
them to secure the evidence concerning the incident; there must be an effective
official investigation when individuals have been killed as a result of the use of
force. The essential purpose of such investigation is to secure the effective
implementation of the domestic laws which protect the right to life and, in
those cases involving state agents or bodies, to ensure their accountability for
deaths which result from state use of force; a prompt response is essential; the
authorities must act of their own motion, once the matter has come to their
attention; the burden of proof rests on state to provide a satisfactory and
convincing explanation where they have exclusive knowledge about the death;
the persons responsible for and carrying out the investigation must be
independent from those implicated in the events; the investigation must also be
capable of leading to a determination of whether the force used in such cases
was or was not justified and to the identification and punishment of those
responsible; there must be a sufficient element of public scrutiny of the
investigation or its results to secure accountability in practice as well as in
139
Cory Collusion Inquiry: Rosemary Nelson, paragraph 4.242 ; Cory Collusion Inquiry: Robert Hamill,
paragraph 2.253 ; Cory Collusion Inquiry: Billy Wright, paragraph 3.224.
140
Letter from the Honourable Peter Cory to Representative Christopher Smith, Chair of the House
Subcommittee on Africa, Global Human Rights and International Relations,15 March 2005
141
Statement by the Rt Hon Paul Murphy MP to the House of Commons, 8 July 2004, Hansard, HoC,
column 44WS.
44
theory; and the next-of-kin of the victim must be involved in the procedure to
the extent necessary to safeguard his or her legitimate interests.”142
Of particular relevance to these inquiries is the finding made by the ECtHR in
another case emanating from Northern Ireland - Brecknell v UK - which focused
on allegations of state collusion. In finding the UK to be in violation of Article 2
ECHR it held that:
“...given the fundamental importance of this provision, the state authorities
must be sensitive to any information or material which as the potential either to
undermine the conclusions of an earlier investigation or to allow an earlier
inconclusive investigation to be pursued further””143.
Right to life of victims as applicable to the Rosemary Nelson, Robert Hamill, and
Billy Wright Inquiries
An analysis of these principles within the context of each Inquiry illustrates both
how the inquiries operated and their compliance with international legal standards.
deprivations of life must be subjected to the most careful scrutiny by the State,
taking into consideration all the surrounding circumstances relevant to the death
This test was broadly met. All three Inquiries expended large amounts of time and
resources to ensure that they provided an in-depth scrutiny of the cases at issue.
Additionally, their terms of reference appeared to be broad enough in scope to
encompass an examination of all the relevant circumstances surrounding the
deaths. Despite their failure to include references to the topic of collusion, the
terms of reference in principle allowed for consideration of some of the issues and
technicalities surrounding each case.
However, it is important to note that in accordance with the Inquiries Act (2005)
the terms of reference were drawn up by the Secretary of State for Northern
Ireland, as opposed to the inquiry chair or secretariat. Although it was open to each
Inquiry to seek alteration of its terms of reference, and in the case of the Rosemary
Nelson Inquiry this happened, only the Secretary of State had the power to agree
any changes. To this extent, the independence of the Inquiries was imperfect. The
omission of the word “collusion” from the terms of reference of all three Inquiries
was deliberate, and ignored the fact that Judge Cory had named his enquiry “The
Cory Collusion Inquiry”. BIRW and CAJ made representations to all three Inquiries
that they should seek to have the word “collusion” inserted into their terms of
reference, but all three declined to do so. In relation to the Rosemary Nelson and
142
Jordan v. UK [2001] 37 EHRR 52.
Paragraph 70, Brecknell v UK (2007) 46 EHRR 954.
143
45
Billy Wright Inquiries, this refusal was ultimately to prove problematic. It remains
to be seen how it affected the Robert Hamill Inquiry, as its report has yet to be
published.
Rosemary Nelson Inquiry
The terms of reference for the Rosemary Nelson Inquiry appeared wide enough to
address all circumstances surrounding her death. While the omission of the term
collusion from the terms of reference was regrettable, the Inquiry report provides
sufficient evidence to allow the public to draw conclusions against Judge Cory’s
definition.144 However, since both her family’s and public concern surrounding
Rosemary Nelson’s murder centred on allegations of collusion, it is unfortunate
that they should have to draw their own conclusions rather than being able to rely
on an authoritative finding by the Inquiry.
At the outset, the Inquiry issued a list of questions that it hoped to answer in
relation to the death of Rosemary Nelson, but in the course of its hearings it
concluded that it would be unable to address some of the issues. This leaves open
the question of whether it was in fact able to subject all the surrounding
circumstances to careful scrutiny. For example, one of the questions it posed was,
“Whether any person within the RUC, NIO, Army or other state agency incited
violence against Rosemary Nelson or incited her murder.”145 This question was not
addressed in the final report of the Inquiry.
As amended by the Secretary of State for Northern Ireland, at the Inquiry’s request,
the Inquiry’s terms of reference included an expanded definition of individuals and
groups (the army or other state agency) that could have been responsible for her
death. This wider definition ensured that possible culpability was not limited to a
small number of actors, and with the larger scope came an increased ability to
command disclosure of documents and evidence surrounding a number of issues
and actors. This led to a more complete picture being established by the Inquiry. As
the Inquiry is a mechanism for discovery of the “truth” surrounding Rosemary
Nelson’s death, this expanded approach allowed the Inquiry to take into
consideration all of the surrounding circumstances. In addition, the Inquiry
culminated in a 505 page report and a government apology.
The Inquiry lasted 15 months and expended cost an estimated £46.5m in its search
for the truth.
Robert Hamill Inquiry
The terms of reference for the Robert Hamill Inquiry included an
examination of the actions both of the Royal Ulster Constabulary (RUC) and
the Department of Public Prosecutions (DPP). The Inquiry examined
whether “any act or omission by or within the RUC facilitated Robert
144
See Overall Conclusions at pages 465 – 467.
Rosemary Nelson Inquiry, List of Issues, no, 15, 12May 2005.
145
46
Hamill’s death or obstructed the investigation of it.” This scrutiny was also
applied to the DPP, as the Inquiry investigated whether the DPP and his
office “acted with due diligence in relation to those charged with murder.”
The scrutiny was limited as applied to the DPP however, in that though
criticism could be made on their findings, the Inquiry Panel was not allowed
to consider their prosecutorial decisions.
Although these terms of reference included two of the major State agencies
criticised in the aftermath surrounding Robert Hamill’s death, the scope did
not go far enough when it came to the DPP. The panel should have been
able to consider the prosecutorial decisions made by the DPP, in order to
develop a more complete picture of the circumstances surrounding the
death of Robert Hamill and the subsequent investigation. This failure leads
us to doubt if Article 2 was fully met.
The Inquiry cost an estimated £36m and lasted 12 months.
Billy Wright Inquiry
In its conversion to the Inquiries Act 2005, the Billy Wright Inquiry hoped to ensure
a thorough investigation.146 The broad terms of reference under which it operated
mirrored this stance. The terms of reference included both “the prison authorities
and other State agencies” in their realm of scrutiny. These terms did not, however,
include any mention or definition of collusion. This limited the Inquiry’s ability to
consider all of the circumstances relevant to Billy Wright’s death. Indeed, the
Inquiry refused to accept Judge Cory’s definition of collusion, instead substituting its
own, narrower definition, despite finding a catalogue of acts of commission or
omission on the part of state agents that contributed to Billy’s Wright’s death.
The Inquiry also failed to consider in depth the matter of several key aspects of the
murder. This is demonstrated, for example, by the Inquiry’s failure to determine
how the gun that was used to kill Billy Wright was carried into the prison; it was also
unable to ascertain by what means it was passed to one of the INLA prisoners or
escaped the searches made of prisoners returning from visits.
Lack of
determination of this key aspect of the crime reduced the Inquiry’s effectiveness in
thorough consideration of all circumstances surrounding the death.
The Inquiry cost an estimated £29.8m and lasted 19 months. Its report was 700
pages long and it led to a government apology.
146
“I consider the 2005 Act provides the best means of ensuring both the thorough investigation
that this Inquiry demands and the fullest possible exposure of our work. That, together with the
requirements of Article 2 of the European Convention on Human Rights (though not a strict legal
obligation), should, I believe, enhance the confidence of all that this Inquiry will not only be a full
and open Public Inquiry, but will also be, and will be seen to be, fully independent in its outlook and
approach.” Billy Wright Inquiry, Statement Of Lord MacLean (2005), available at
http://www.billywrightinquiry.org/rulings/conversion-to-inquiries-act-2005/.
47
The authorities must have taken all reasonable steps available to them to secure
the evidence concerning the incident
Due to failures in the original investigations, the Inquiries were unable to secure all
evidence necessary to their inquisitions of the individual cases.
Rosemary Nelson Inquiry
A number of opportunities were missed by the RUC in the “golden hours”147
immediately after Rosemary Nelson’s murder. Although the then Chief Constable,
Sir Ronnie Flanagan, asked Her Majesty’s Inspectorate of Constabularies to appoint
an external police officer to head up the investigation, their first choice, David
Phillips of Kent police, rapidly removed himself, and it was three weeks before Colin
Port, then Deputy Chief Constable of the Norfolk Constabulary, took over. He
inherited an investigation that had been commenced by the RUC, and which
included a team which was considering the possibility of collusion, made up of RUC
officers. . Colin Port insisted in keeping some RUC officers involved in the
investigation, which sapped public confidence because it was widely known that
Rosemary Nelson’s life had been threatened by RUC officers. It is thought that
because of this that some witnesses refused to come forward. Colin Port’s
investigation was also hampered by hostility from within the RUC, and their
insistence that, despite the fact that a number of police informers were suspects,
they had no prior knowledge of the murder. No-one was charged with Rosemary
Nelson’s murder.
Nevertheless, the Rosemary Nelson Inquiry did its best to remedy these defects.
They appointed a seven-strong team of former police officers from outside
Northern Ireland, headed by Robert Ayling, previously of Kent police, to conduct a
rigorous review of the police investigation. The Inquiry concluded that while the
police investigation was “not perfect in every respect”, overall it was “carried out
with due diligence”.148
Robert Hamill Inquiry
As in the Rosemary Nelson case, the original investigation of Robert Hamill’s death
was significantly flawed. Despite the severity of this assault, only one participant in
the attack was detained. He was released ten minutes into his detention and was
not prosecuted at the time for his possible role in the assault. The area in which
Robert Hamill was assaulted was not cordoned off until 7:27 am approximately six
147
The ‘Golden hours’ principle is where an investigation is started as soon as possible after an
offence has been committed to enhance the investigator’s opportunity to gather the maximum
amount of material – Practice Advice on Core Investigative Doctrine 2005; page 46; paragraph 4.2.2.
148
The Rosemary Nelson Inquiry Report (2011), Summary of Recommendations and Conclusions.
48
hours after the incident. Forensic Science Officers did not arrive for another two
hours and samples were not collected until 10:00 am - eight and a half hours after
the assault had taken place. RUC officers who had been at the scene of the assault
were allowed to go off-duty without writing up an incident log. Allegedly, due to
these many areas of police failure, important information and evidence was lost.
The authorities allegedly did not take all reasonable steps to secure the evidence
regarding the incident. One RUC officer allegedly assisted one of the perpetrators,
while another senior officer, now deceased, allegedly covered up for his junior
colleague.
Although the Inquiry was unable to remedy these serious defects, it appears to
have been able to receive all of the material it requested from the PSNI. Yet it
remains difficult to fully reach the Article 2 compliance standard in a subsequent
inquiry or investigation when the original process upon which it relies appears to be
deeply flawed.
Billy Wright Inquiry
Here again the Inquiry was hampered by failures in the original police investigation.
Although it seemed very likely that other INLA prisoners other than those charged
with the murder had been complicit, acting as look-outs and so on, they were not
questioned by police until four weeks after the murder. The RUC seemed happy to
accept that the three men who killed Billy Wright had been witnessed, and caught
in the act, that there was no real need for an investigation.
The Inquiry recognised early on that there was a possibility that they “might run
into difficulty in obtaining documents, particularly from institutional bodies not
immediately associated with a prison.149This was one of the reasons the Inquiry
sought conversion to the Inquiries Act, in order to compel document disclosure
Flaws in the Billy Wright Inquiry emerged when the Inquiry requested material and
documents from the Northern Ireland Prison Service (NIPS). During preliminary
hearings, prison officials testified that many documents that the Inquiry requested
had been destroyed. Prison staff testified that files on 800 prisoners, including Billy
Wright, were destroyed as part of routine document destruction. In total, some
42,000 files were destroyed, without proper records being kept concerning their
destruction. NIPS was severely criticised by the Inquiry for both failing to provide
149
Billy Wright Inquiry Report paragraph 1.40 “it became apparent during the first half of 2005 that
some of the material the Inquiry would have to examine was likely to be of an extremely sensitive
nature in that it involved intelligence and the operation of intelligence systems across a number of
agencies. This was clearly not going to be an easy or straightforward process and the Panel were
concerned that they should be equipped with the maximum available powers appropriate to their
work.”
49
material to the Inquiry and for destroying documents related to the management of
the prisons and the death of Billy Wright.
The PSNI was also heavily criticised by the Inquiry for failing to provide
information.150
While the Inquiry cannot be held responsible for the destruction of evidence, it
must fulfil its Article 2 obligation by holding those responsible for that destruction
to account. Regrettably, the Inquiry did not take all steps possible or necessary to
make accountable officials who failed to comply with the Inquiry’s directions.
There must be an effective official investigation when individuals have been killed
as a result of the use of force
The essential purpose of such investigation is to secure the effective
implementation of the domestic laws protecting the right to life and, in those cases
involving State agents or bodies, to ensure their accountability for deaths which
result from State use of force.
Here we examine whether the three Inquiries, rather than the police, provided an
effective investigation, with particular emphasis on their approach to the issue of
collusion.
Rosemary Nelson Inquiry
The Rosemary Nelson Inquiry Final Report did not adopt Judge Cory’s definition of
collusion, nor did it include any mention of collusion in the terms of reference for
the Inquiry. The Inquiry’s conclusions did not include a finding of collusion. Had it
chosen to include this possibility within the Inquiry, it appears that the evidence
would have met the burden of proof. Within its frame of reference, the Inquiry
found that there was “no evidence of any act which directly facilitated the murder”
but explained that they “could not exclude the possibility that rogue RUC officers or
soldiers assisted the murderers to target Rosemary Nelson.”151 The Panel stated
that they were certain that Rosemary Nelson was abused and assaulted by police
officers on the Garvaghy Road, that leakage of intelligence from the RUC increased
the danger to her life, and that RUC officers made abusive and threatening remarks
which legitimised Rosemary Nelson as a target. They concluded that “the State
failed to take reasonable and proportionate steps to safeguard the life of Rosemary
Nelson”.152
150
Position Paper on the Police Service of Northern Ireland’s Response to Requests for Information,
The Billy Wright Inquiry (21 January 2008).
http://webarchive.nationalarchives.gov.uk/20101210142120/http://www.billywrightinquiry.org/file
store/documents/Position_Paper_on_PSNIs_response_to_requests_for_information.pdf.
151
The Rosemary Nelson Inquiry Report (2011), Overall Conclusions, page 465.
152
Ibid, page 466.
50
The Inquiry explained that there were significant omissions by both the RUC and the
Northern Ireland Office (NIO) increasing Rosemary Nelson’s risk and adding to her
vulnerability. The RUC failed to respond to significant and relevant intelligence that
Rosemary Nelson was a target. They did not attempt to decrease the external
threats she faced; rather, they added their own coercion and derision to the
catalogue of abuse she experienced. It was the RUC’s responsibility to take steps to
protect Rosemary Nelson. Their neglect to do so amounted to a complete
institutional failure on their part. Similarly, the NIO failed to intervene when the
RUC’s failings were drawn to their attention. At the time of Rosemary Nelson’s
death, the Secretary of State for Northern Ireland had ultimate responsibility for
policing and it was her job to hold the Chief Constable of the RUC to account.
The Inquiry was also critical of the original investigation following Rosemary
Nelson’s death. They recognised that although there was significant effort put into
the investigation, it was not exhaustive. The Panel suggested that the investigation
should have included alternative perspectives, rather than an automatic
assumption of loyalist murder. Additionally, the Panel stated that the officers
involved should have more thoroughly investigated the individuals with whom
Rosemary Nelson interacted during her last weeks. The Panel concluded, however,
that the investigation itself was carried out “in difficult circumstances with due
diligence.”153
CAJ and BIRW note that Judge Cory explained that acts of omission can constitute
acts of collusion in the same way as acts of commission.154 The Inquiry’s finding that
the State - rather than its agents or some rogue individuals within its agencies failed to safeguard Rosemary Nelson’s life is tantamount to a finding of collusion.
Robert Hamill Inquiry
It is too early to determine whether the Robert Hamill Inquiry has met the standard
for an effective official investigation as the final report has not yet been released. It
should be noted, however, that the Inquiry did release a brief interim report. This
report recommended that the Director of Public Prosecutions should reconsider
prosecution of key suspects within the Inquiry. This recommendation by the Panel
indicates that, despite the passage of time between Robert Hamill’s death and the
current Inquiry, attempts have been made to hold those involved criminally
responsible. CAJ and BIRW hope that this indicates the tenor of the Inquiry’s final
report and that the outcome of the investigation will be critical and include a
thorough and effective examination of the circumstances surrounding Robert
Hamill’s death. It is also hoped that the Inquiry will take into account the
responsibilities it is under with respect to the recent Supreme Court decision in
McCaughey & Grew.
153
154
Ibid.
Cory Collusion Report: Rosemary Nelson, paragraph 4.196.
51
Billy Wright Inquiry
In its final Report, the Billy Wright Inquiry did not adopt Judge Cory’s definition of
collusion and, using a narrower definition, determined that there was no collusion
between State agencies and paramilitary organisations in his murder. Although
particular agents and bodies - such as the Northern Ireland Prison Service were
called to attend and give evidence in regard to their decisions and actions,
ultimately no one agent or body was held to account.
The Inquiry explained that they operated with a clear understanding of the meaning
of collusion and “the possibility that individuals within State agencies behaved
collusively or committed collusive acts” which could have assisted or led to Billy
Wright’s death. Though the Inquiry recognised that “certain individuals and
institutions or State agencies...did facilitate his death” they were not persuaded
that there was any evidence of collusive acts or collusive conduct.155
The Inquiry noted the difference in their findings from that of Judge Cory, the
Stevens Enquiry, and the investigation by the Police Ombudsman for Northern
Ireland, who all found evidence of collusive conduct by the RUC. The Inquiry
claimed that it could only operate on the evidence given during the hearings rather
than evidence to which the other investigations may have had access. Based on the
evidence given during this Inquiry, the Panel asserted that there were a series of
failures in the management of both the Prison Service and the Maze Prison and
recommended that there should be an overhaul of the Prison Service to ensure that
these failings no longer exist within it. They stated that these failings, however, did
not go so far as to constitute collusion. Since the government had pledged its full
co-operation with all three inquiries156, it is difficult to envisage that information
available to other investigations was not made available to the Billy Wright Inquiry.
A prompt response is essential; the authorities must act of their own motion,
once the matter has come to their attention, they cannot leave it to the initiative
of the next of kin
These two tests could not be met by any of the Inquiries and in respect of these
matters the Inquiries did not meet their Article 2 requirements. The establishment
of these Inquiries after the individuals’ deaths were significantly delayed, and so in
these cases cannot be described as a ‘prompt response’. Nor were these Inquiries
established independently. They were established as a result of political
negotiations and extensive efforts on the part of the families.
155
The Billy Wright Inquiry Report (2010), paragraph 16.4.
Response of the Rt Hon Paul Murphy MP, Secretary of State for Northern Ireland, to oral question
by Kevin McNamara MP during announcement of the Wright, Nelson and Hamill Inquiries (1 April
2004), Hansard, HoC, column 1762.
156
52
Rosemary Nelson Inquiry
Members of Rosemary Nelson’s family began their campaign for an Inquiry almost
immediately. Rosemary Nelson was killed in March 1999. One year later - in March
2000 - then-Prime Minister Tony Blair was given a 100,000 signature petition
requesting a public inquiry into her death. It was not until the Weston Park talks
and the subsequent investigation and the 2004 publication of Judge Cory’s Collusion
Reports that an inquiry was initiated and even then there was considerable delay.
This was not a prompt response, nor was it without initiation by the next of kin and
NGOs.
Robert Hamill Inquiry
Similar to the case of Rosemary Nelson, Robert Hamill’s Inquiry did not come
immediately after his death, despite requests by his next of kin. Rather, Judge
Cory’s report - issued seven years after his murder - in conjunction with a series of
political negotiations, were the key factors in initiating this Inquiry. This was not a
prompt response, nor was it without initiation by his next of kin.
Billy Wright Inquiry
The Billy Wright Inquiry completes the pattern. This Inquiry was also established as
a result of the Weston Park negotiations and a Judge Cory Collusion Report, six
years after Billy Wright’s murder in the Maze Prison. Six years cannot be
considered prompt. Furthermore, the inquiry only came about because of the
determined and vigorous campaign by Billy Wright’s father.
The burden of proof rests on the State to provide a satisfactory and convincing
explanation where they have exclusive knowledge about the death
This aspect of the Article 2 test was not successfully met in the Rosemary Nelson
and Billy Wright Inquiries; whether it will be met by the Robert Hamill Inquiry
remains to be seen. Though the Inquiries called witnesses on behalf of the State to
address this issue, the use of screening and anonymity for these witnesses, the
holding of closed sessions, and redaction of transcripts all militate against this test
having been successfully achieved. We stress that, when deaths have occurred in
suspicious circumstances or in circumstances which call into question the integrity
of state officials and/or their involvement in the death, the openness and
transparency of the legal and investigative process takes on a heightened
importance.
Rosemary Nelson Inquiry
53
Public inquiries are, as their name suggests, held in public. However, at certain
points during the Inquiry, there arose circumstances in which the Inquiry
determined that testimony should not be given in public. In these circumstances,
the layout of the chamber made it possible to physically screen the witnesses from
the public gallery. These screens allowed witnesses to testify anonymously, while
allowing members of the public to remain in the hearing chamber.
Of greater concern, however, were the Inquiry’s completely closed sessions.
Several of these took place during the course of the Inquiry, particularly throughout
February and March 2009. Although there is no record of these closed sessions,
witnesses in open hearings during these months referred to issues not being
appropriate for discussion in ‘open session’ and suggested that they should rather
be discussed in closed sessions.
The secrecy with which these closed sessions took place prevents the State from
having met this element of Article 2. No explanation given by the State, short of an
un-redacted transcript or open record of these proceedings, could ensure that the
State has provided a satisfactory or convincing explanation about the death,
particularly in regards to the information to which the State is exclusively privy.
Robert Hamill Inquiry
The hearings of the Robert Hamill Inquiry were generally held in public. However,
the Robert Hamill Inquiry found it necessary to restrict public access on certain
days. Unfortunately, the layout of the chamber for this Inquiry made it impractical
to screen the witness and so the Inquiry chamber was entirely closed to members
of the public. To mitigate the problems which arose around this issue, the Inquiry
permitted legal representatives of the parties to the Inquiry to remain in the
Chamber during such hearings. Additionally, the Inquiry released transcripts of the
closed hearings on the Inquiry website.
These closed hearings appear to breach the State obligation - because of the private
nature of these hearings; it is not possible to know whether the confidential
information gained within the hearing was an essential part of determining liability.
Without this knowledge, there is no way to ensure that the State’s explanation
about the death is satisfactory or convincing, as they are the only ones in
possession of this information.
Billy Wright Inquiry
The Billy Wright Inquiry hearings were also generally held in public, with members
of the public having access to two separate viewing options. Members of the public,
including our team of observers, could gain access either to the main Inquiry
chamber to observe and listen to the oral evidence provided by witnesses called to
54
the Inquiry, or to visual and/or audio screening of proceedings in a separate room
at Banbridge Court House.
There were a small number of occasions when particular witnesses were testifying,
however, in which the Inquiry Panel chose to restrict public access through a
screening process. On these occasions, the chamber provided the ability to
physically screen the main part of the hearing chamber from a reduced section of
the public gallery. This screening ensured that the witnesses were able to testify
anonymously, while allowing members of the public to remain in the Inquiry session
to hear the testimony of these witnesses. Additionally, there was access in a
separate room to an audio feed of proceedings.
However, the occasions on which the Inquiry held ‘closed’ sessions were more
concerning. The Inquiry Panel, Inquiry Counsel, the witness, and the witness’ own
legal representatives were the only parties allowed to enter the chamber for these
sessions. Other parties to the Inquiry - including the victim’s family and their legal
teams - were not permitted. On these days, there was no record of testimony
made publicly available. The Inquiry provided a brief summary of issues covered in
these closed sessions to legal participants and, upon request, to CAJ and BIRW.
However, these summaries have not been made available on the Inquiry website.
The secrecy with which these hearings took place is a breach of the obligation to
provide a satisfactory and convincing explanation. These were situations in which
the State had exclusive knowledge about the death and it is not possible to
determine whether their explanations met the necessary standard.
The persons responsible for and carrying out the investigation must be
independent from those implicated in the events
It appears that this test was broadly met in all three Inquiries. CAJ and BIRW point
out, however, that the use of individuals who all came from a British establishment
background to make up the inquiries panels, suggests that too narrow a perspective
was represented among the decision-makers. A range of international panellists
may have been more effective and useful for gaining an external and unbiased
perspective on the individual cases. We also note that there was no human rights
expert on any of the inquiry panels.
As important as the panel members were the legal teams who serviced them. In all
three cases Counsel to the Inquiry and Solicitor to the Inquiry were from British
backgrounds.
Rosemary Nelson Inquiry
The Rosemary Nelson Inquiry was led by a three-member panel chaired by an
English former senior judge. The Panel included: Chairman Sir Michael Morland, a
retired judge of the High Court of England and Wales; Dame Valerie Strachan, a
55
former chairman of the Board of Customs and Excise; and Sir Anthony Burden,
former Chief Constable of the South Wales Police.
An issue which raises problems for all three Inquiries is that they were preceded by
investigations which were not properly independent. In Rosemary Nelson’s case,
she was threatened by RUC officers before her murder, yet the initial stages of the
police investigation were carried out by the RUC, and Colin Port retained significant
number of RUC officers within his team. Some of the suspects were police
informers. No-one was ever charged with the murder. However independent the
Inquiry may have been, it was never going to be able to remedy these problems.
The European Court of Human Rights has said that investigations must be
independent in theory and in practice. The prior investigative defects must have
hampered the visible and hierarchical independence of the Inquiry in practice, as
was shown by its inability to answer some of the questions it set itself at the outset.
Robert Hamill Inquiry
The Robert Hamill Inquiry Panel was also composed of three individuals from
various backgrounds. The members of the Panel were: Chairman Sir Edwin Jowitt, a
former Justice of the English High Court, Queen’s Bench Division; the Reverend
Baroness Kathleen Richardson of Calow, a Methodist minister and the Moderator of
the Churches’ Commission for Inter Faith Relations; and Sir John Evans, former Chief
Constable of Devon and Cornwall Constabulary.
Again, the Inquiry’s practical independence was hampered by the fact that two
police officers, one junior and one senior, allegedly colluded to derail the police
investigation.
Billy Wright Inquiry
The Billy Wright Inquiry also had a Panel of three: the Rt. Hon. Lord Ranald
MacLean, a Senator of the College of Justice in Scotland; Professor Andrew Coyle, a
Professor of Prison Studies in the School of Law, King’s College, University of
London; and the Right Reverend John Oliver, former Bishop of Hereford.
Any investigation conducted solely by the State would be inadequate by
international legal norms as Billy Wright was killed within a State prison. The site
alone gave rise to a grave presumption that in order for the death to have been
executed there had been an omission by government officials. A party with
sufficient independence from the individuals involved in the State failure should
have conducted the original investigation into his death. As it was, the RUC
investigation was inadequate in the ways described above. The fact that this
impinged on the practical independence of the Billy Wright Inquiry is demonstrated
by the fact that the Inquiry was not able to determine how the gun used was
smuggled into the prison.
56
The investigation must also be capable of leading to a determination of whether
the force used in such cases was or was not justified and to the identification and
punishment of those responsible
Rosemary Nelson Inquiry
The Rosemary Nelson Inquiry partially met and partially failed this test. The
Inquiry’s final report identified a series of omissions by the Northern Ireland Office
and the RUC, recognising and identifying those who created the circumstances that
led to her death. Surprisingly, the Inquiry failed to take this identification to the
next step and make recommendations or refer the case to the Director of Public
Prosecutions for criminal prosecution if appropriate. The Inquiry explained that
because much has changed in Northern Ireland since Rosemary Nelson’s murder including the complete restructuring of the police service, one of the main parties
involved - it did not need to make further recommendations or address these
failures in any additional way.157 Furthermore, the Inquiry had criticisms of the NIO
in relation to Rosemary Nelson’s death. There has been no programme of reform of
the NIO nor have individuals within it been made accountable. The Inquiry failed to
make recommendations which would have necessitated reform.
Robert Hamill Inquiry
It is too early to determine whether the Robert Hamill Inquiry has met the standard
for an effective official investigation as the final report has not yet been released. It
should be noted, however, that the Inquiry did release a brief interim report
recommending the prosecution of key suspects within the Inquiry. These
prosecutions have since commenced and proceedings in 2014 will determine
whether prosecutions for perversion of justice will be upheld by the court.
This is an important recommendation by the Panel, whether or not the court
determines liability, because it indicates that the Inquiry was be capable of
identifying individuals and recommending the case to the Director of Public
Prosecutions for possible criminal prosecution, despite the passage of time
between Robert Hamill’s death and the current Inquiry.
Billy Wright Inquiry
The Billy Wright Inquiry failed to meet this test with the publication of the Inquiry’s
Final Report. The Report recognised a number of failings within the Northern
Ireland Prison Service and, in particular, the Maze Prison. However, it did not
identify or blame any individual or agency and subsequently did not recommend
157
The Rosemary Nelson Inquiry Report (2011), Afterword.
57
that the Director of Public Prosecutions review the case with a view to ascertaining
if criminal proceedings were appropriate.
There must be a sufficient element of public scrutiny of the investigation or its
results to secure accountability in practice as well as in theory
This need for public hearings was reaffirmed by Lord Neuberger in Al Rawi and
Others v Security Service and others158:“While considering practical considerations,
it is helpful to stand back and consider not merely whether justice is being done,
but whether justice is being seen to be done.” Looked at through the lenses of
anonymity, closed sessions and redactions, the Rosemary Nelson and Billy Wright
Inquiries did not meet this test, but that the Robert Hamill Inquiry did.
Rosemary Nelson Inquiry
It appears that the Rosemary Nelson Inquiry did not meet this test. The Inquiry had
the greatest number of textual redactions and used closed sessions to uncover
further evidence from that given in public hearings in which members of the public
were not permitted to attend. Though the Inquiry stated that it would be flexible
regarding requests to attend the closed hearings, there were occasions in which
some legal representatives of Core Participants were not allowed to attend.
Though these legal representatives were provided with a transcript of proceedings,
the Inquiry refused to put these transcripts of the evidence gathered during closed
sessions on the Inquiry website. Finally, all questions asked in the Rosemary Nelson
Inquiry were posed by Counsel to the Inquiry. Inquiry Counsel could then decide
which questions were posed to the Panel - preventing the public from gathering all
evidence and from knowing which questions the Panel chose not to ask. Without
public access to the information redacted from transcripts, the transcripts from
these closed hearings, and the information censored by the Inquiry Counsel, the
level of public scrutiny needed to meet this element and obligation under Article 2
cannot be deemed adequate.
Robert Hamill Inquiry
The Robert Hamill Inquiry appears to have broadly met this test. Though the
Inquiry did make use of Restriction Orders and closed sessions, it remained the
most accessible of the three inquiries. The Inquiry held closed sessions to consider
anonymity applications, from which all external parties were excluded. It is a
matter of concern that there is no record of this Restriction Order on the website.
Lack of reporting on a Restriction Order would not meet the requirement for
sufficient public scrutiny. By itself, however, this is not enough to deem the Inquiry
non-compliant with this element of Article 2.
158
[2010] EWCACiv 482.
58
The Inquiry issued temporary blanket anonymity for all PSNI officers after a terrorist
attack, so that the Inquiry could continue with its hearings until they were able to
perform a group risk assessment. Anonymity was retrospectively lifted for officers
who were found not to be subject to an increased risk if they gave evidence
publicly. Additionally, due to the layout of the Inquiry chamber, the Inquiry was
unable to screen witnesses from the public gallery. Though the chamber was closed
when anonymous evidence was given, all legal representatives were present and
the Inquiry placed a transcript of these hearings on the website for public access.
This effort to make both closed and open sessions of the Inquiry accessible meant
that this Inquiry was broadly compliant with this element of the Article 2 obligation.
Billy Wright Inquiry
The Billy Wright Inquiry did not meet this test; the levels of public engagement and
transparency in all areas of the Inquiry were extremely low.
Following the House of Lords’ judgment in Re Officer L, 159 transparency was
reduced within the Inquiry, particularly with regard to the decisions to grant
anonymity to witnesses. In addition to the lack of transparency around the decision
of whether to grant anonymity, public access to the hearings in which evidence was
given by anonymous witnesses was restricted. Although the public could
theoretically remain present for this evidence if screens were put in place, or could
attend in a separate room that had been set up for an audio feed of the
proceedings, the Inquiry held a number of closed sessions from which they
excluded the public and most legal representatives.
Concern remains about these closed sessions, as both the public and many legal
representatives of Core Participants were excluded, including those of the next-ofkin. The Inquiry has not released a public record of the evidence gained during
these sessions—despite requests—and has only offered brief summaries of what
happened on these days.
There is also great concern regarding the use of Restriction Orders within the Billy
Wright Inquiry. The Inquiry issued Restriction Orders regarding evidence that had
been given in open court and reported in the media. Despite the original public
access to this information, the Inquiry has not provided electronic transcripts of
these hearings for public use.160
Without public access to the information given by anonymous witnesses and the
evidence from the days now under a Restriction Order, public scrutiny of the Inquiry
cannot be sufficient to secure accountability.
159
[2007] UKHL 36.
After requests to the Inquiry, CAJ was able to access these transcripts to physically copy them,
although they could not be electronically copied or placed on the web. It is also unclear where these
transcripts are now located.
160
59
The next-of-kin of the victim must be involved in the procedure to the extent
necessary to safeguard his or her legitimate interests
Within these three Inquiries, the next of kin were all treated as Core Participants
and as such entitled to legal representation. For this reason, it appears that this
test is met in all three Inquiries.
However, the arrangements for delivering the Inquiries’ reports to the next-of-kin
were far from satisfactory161. First their lawyers were allowed a couple of hours to
digest the very lengthy reports, then two family members were allowed to consult
their legal team for a similar period of time. Mobile telephones were confiscated
during this process and no-one was allowed to leave the building. This meant that
some family members were left not knowing what was in the reports until they
were made public. Families were then expected to give immediate reactions to the
reports at press conferences. Admittedly, participation in press conferences was
not obligatory, but public interest in the reports was intense and families found it
very hard to resist the pressure to participate. Since we have continued to work
with the families after publication, we know that it has taken time to fully absorb
such complex reports, and that some family members are left with unanswered
questions. As one family member put it to BIRW, “We got vindication, but we
didn’t get justice.”
Rosemary Nelson Inquiry
Rosemary Nelson’s family - her mother, siblings, husband, and children were
represented by Counsel and given full access to the proceedings. The form of
questioning that took place in her Inquiry, however, seemed to prevent them from
having all of their questions answered or from having their interests fully
safeguarded. Solicitors were required to direct all of their questions to Counsel to
the Inquiry, who then decided whether to ask the question, how to ask it, and when
to ask it. This use of Inquiry Counsel as the lead counsel for the questioning of
witnesses led to confusion as to which Core Participant was behind each question
and for this reason it is not possible to be certain that the interests of the families
were actually protected fully.
Despite this, the family expressed satisfaction with the final report with both
Rosemary Nelsons husband and brother making statements to this effect on the
day of the report’s publication. These were, however, initial reactions made after
little opportunity to consider the reports.
161
Only the Rosemary Nelson and Billy Wright Inquiries’ reports have been delivered, but the
experience of the delivery of reports in other inquiries, such as the Bloody Sunday Inquiry and the
Baha Mousa Inquiry, indicates that a similar procedure will be followed by the Robert Hamill Inquiry.
60
Robert Hamill Inquiry
The Robert Hamill Inquiry appeared to have the best track record for inclusion of
the family and protection of the family’s interests within the Inquiry. Robert
Hamill’s family was given their own Counsel and made Core Participants in the
Inquiry. They were able to make closing submissions, ask questions throughout the
Inquiry, and in general, participate to the same extent as any other participant in
the Inquiry. Family members reported a high level of care and courtesy from Inquiry
personnel.
Billy Wright Inquiry
Billy Wright’s family - his father David Wright - was represented in the Inquiry, and
he was granted his own legal representation and Core Participant status. However,
the Inquiry appeared not to make enough effort to listen to and consider the
concerns of the family throughout the proceedings. The Inquiry demonstrated a
hostile and uncooperative approach to the family and their legal advisors, who
were therefore unable to fully safeguard their clients’ interests. Furthermore, Billy
Wright’s father rejected the findings in the report, calling it a "total whitewash and
a failure to get to the truth."162
Right to Life of Witnesses
It is not just victims who are granted rights under Article 2. Witnesses providing
evidence to investigations into an individual’s suspicious death or murder also have
a right to have their life protected. 163 The issue of witness anonymity links
consideration of the right to life of witnesses to the context of the Cory Inquiries.
The House of Lords’ decision in Re Officer L164 set the standard for consideration of
anonymity applications at the Inquiries. This case arose out a challenge to a ruling
by the Robert Hamill Inquiry to grant anonymity to just one of many police officers
who applied for it. The ruling determined that the positive obligation to protect the
right to life applies to anonymity only when the risk is “real and immediate.”165 In
162
David Wright, Stormont Press Conference (14 September 2010).
LCB v. UK(1998) 27 EHRR 212 originally established this positive Article 2 obligation for states to
take appropriate measures to safeguard the lives of those within their jurisdiction. However it was
Osman v. UK[1998] EHRR 101 that established the circumstances in which this positive obligation
may arise: the authorities knew or ought to have known at the time of the existence of a real and
immediate risk to the life of individuals from criminal acts of a third party and failed to take
measures within the scope of their power which, when viewed objectively, might have been
expected to avoid that risk. More recently, Makaratzis v. Greece (2004) 41 EHRR 1092 determined
that the State must put legal and administrative mechanisms in place to deter the commission of
offences against the individual.
164
Re Officer L[2007] UKHL 36.
165
Osman v United Kingdom [1998] EHRR 101.
163
61
Northern Ireland, this risk was “one that is objectively verified and . . . present and
continuing.”166
The judgement in Re Officer L clarified that “the criterion is and should be one that
is not readily satisfied: in other words, the threshold is high”.167 The risk does not
depend on the subjective concerns of the applicant but instead on the objective
reality of the situation – if there is an objective risk, the individual must be
protected, even if the individual does not have subjective concerns.168
The question posed in relation to Article 2 was whether the pre-existing risk of
death to an applicant for anonymity would be materially increased if he or she were
required to give evidence without being afforded anonymity.169 The police officers
considered whether, in respect to any applicant, the risk would be materially
increased if the applicant was required to give evidence without
anonymity.170However, the House of Lords thought otherwise and the standard set
by Re Officer L and became the baseline for anonymity decisions within all three of
the Inquiries.
Right to life of witnesses as applicable to the Rosemary Nelson, Robert Hamill,
and Billy Wright Inquiries
Rosemary Nelson Inquiry
The Inquiry requested over 350 witness statements.171 The issue of anonymity was
first raised by the Inquiry on 23 May 2005, when it made it clear that it was open to
anyone to request anonymity. During the twelve months following the
development of the anonymity procedure, the Inquiry received very few
applications for anonymity—and those that were submitted were not supported by
the level of detailed evidence necessary for the Inquiry to arrive at a final
decision.172 After setting a deadline for anonymity applications in its Second
166
In re W’s Application [2004] NIQB 67
A.I.L. Campbell, Positive Obligations under the ECHR: Deprivation of Liberty by Private Actors, 10
Edinburgh Law Review. 399 (2006). See also Alastair Mowbray, The Development of Positive
Obligations under the European Convention on Human Rights by the European Court of Human
Rights (2004) and P van Dijk, “‘Positive Obligations’ implied in the European Convention on Human
Rights: Are the States still the ‘Masters’ of the Convention?”, in Castermans-Holleman et al (eds.),
st
The Role of the Nation-State in the 21 Century: Human Rights, International Organizations and
Foreign Policy – Essays in Honour of Peter Haehr (1998).
168
In re W’s Application[2004] NIQB 67.
169
Ibid, at paragraph 14.
170
Robert Hamill Inquiry, Ruling on Anonymity Applications (16 May 2006):
http://www.roberthamillinquiry.org/the-public-hearings/witnesses/immunity/anon-ruling/
171
Rosemary Nelson Inquiry, Anonymity Generic Final Ruling 32 (21/02/2008) which sets out the
background before this Generic Ruling was made:
http://webarchive.nationalarchives.gov.uk/20110612081947/http://www.rosemarynelsoninquiry.or
g/current-key-documents/37/
172
Rosemary Nelson Inquiry Procedures Document, 23 May 2005, paragraphs 38- 40:
http://webarchive.nationalarchives.gov.uk/20110612081947/http://www.rosemarynelsoninquiry.or
g/current-key-documents/8/
167
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Procedural Update, however, the Inquiry received a substantial number of
applications for anonymity. The Third Procedural Update established the way the
Panel would proceed with the consideration of these applications.173 After reading
through the submissions of anonymity applications, the Inquiry decided to hold a
private hearing at which oral submissions could be made by the parties seeking
anonymity as well as the Family Core Participants.174 As of 21 February 2008, the
date of the Anonymity Generic Final Ruling, approximately 220 witness statements
had been disclosed.175 From these witness statements, the Inquiry decided who
would be called to give oral evidence.176
The Inquiry recognised that its duty to grant anonymity extended to those
individuals whose statements may be taken into account or who may be named or
otherwise identified by the Inquiry, rather than just those who were called to give
evidence and applied for anonymity. The Inquiry reported that it considered each
case individually on its particular facts.177 It explained that each person who
applied for anonymity was considered separately and on their own personal
circumstances, based on all material which was submitted in support of the
application.178
Within the Rosemary Nelson Inquiry, individual anonymity decisions were not made
public. The Panel believed that it was neither appropriate nor practical to make the
decisions public due to the amount of personal information that would need to be
redacted from these individual decisions. On day 1 of Inquiry proceedings, it was
indicated that at that date there had been 144 individual applications and that at
that stage the Inquiry had ruled on 110 of those applications. In addition, it was
outlined that these rulings and the sensitive information they contained were sent
to the individual applicant and their legal representative, however, Core
Participants (i.e. those represented at the Inquiry other than the person who
applied for anonymity) received a copy of the generic ruling.179
173
Rosemary Nelson Inquiry, Anonymity Generic Final Ruling 32 (21/02/2008), paragraph 9. The
Inquiry determined that it would follow six steps: “The Panel will come to a provisional view on
anonymity having considered the submitted application. A copy of the relevant provisional ruling will
be sent to the party seeking anonymity, as well as a redacted copy to the Family Core Participants. If
the party seeking anonymity or the Family Core Participants wish the Panel to amend or vary their
provisional decision, they should make the case in a written submission. If the Panel deem it
necessary, provision will be made for a private hearing. The Panel will announce its final decisions on
anonymity. It is intended that final rulings will be made public and posted on the Inquiry’s website.
Those witnesses granted anonymity will have their names redacted from the documents in the
Inquiry Bundle and replaced with a cipher. This cipher will be used at the Full Hearing as well as in
the documents.”
174
Ibid, paragraph 10.
175
Ibid, paragraph 8.It is unclear as to whether these further batches were ever released or to whom
they were released.
176
Ibid, paragraph 26.
177
In the Rosemary Nelson Inquiry, the Panel did not release individual decisions, but rather issued
one generic ruling to cover all applications. This generic ruling stated that each case was considered
individually. There is no way to determine whether this did or did not occur without sight of the
individual decisions. We do not doubt the Inquiry’s integrity, but make this point to illustrate the
difficulty of reconciling sensitive handling of requests for anonymity with the need for transparency.
178
Rosemary Nelson Inquiry, Anonymity Generic Final Ruling 32 (21 February 2008), paragraph 14
179
Transcript of Day 1, Rosemary Nelson Inquiry, pages 68-69.
63
Also, because it was a separate and distinct issue, the issue of screening was
addressed separately in the individual anonymity rulings according to the
circumstances of the individual and not made public.
Robert Hamill Inquiry
Applicants for anonymity in the Robert Hamill Inquiry were, for the most part,
serving and former police officers from the RUC and PSNI. There were also a smaller
number of applicants who had never served in the police force. 180
The PSNI made an application for anonymity on behalf of all officers, former and
present, arguing that all police officers and former police officers and their families
in Northern Ireland were at some risk of death or injury from attacks upon them by
paramilitaries, whether Republican or Loyalist.181 For this reason, the Panel looked
at the question of whether the risk was materially increased if the officer was
named in public and gave his or her information without screens.182
For applicants who were not and had never been police officers, the question was
whether there was a real risk of loss to life if the applicant was named in public or
able to be seen by the public while entering the Inquiry chamber and giving
evidence.183
The Robert Hamill Inquiry did not publish individual anonymity decisions, nor did it
make public the number of applications it had received or was addressing. When
asked, however, the Inquiry reported that 17 witnesses were ultimately given
anonymity with their names removed from any transcripts and the report. 184 Unlike
the Nelson and Wright Inquiries, the Hamill Inquiry grouped the applications (and
applicants) into four categories, and made decisions for the entire category. The
Generic Ruling it issued was quite detailed as to the many issues that arose during
consideration and the reasoning for each of those issues; much more detailed than
the decisions issued by the Billy Wright Inquiry and the Generic Ruling in the
Rosemary Nelson Inquiry. 185 One can conclude that the Inquiry developed a
thorough process.
Finally, the Inquiry seemed to deal with screening and anonymity as one issue.
180
Robert Hamill Inquiry, Ruling on Anonymity Applications (16 May 2006):
http://www.roberthamillinquiry.org/the-public-hearings/witnesses/immunity/anon-ruling/
181
Re Officer L, paragraph 14.
182
Ibid. See also Robert Hamill Inquiry, Ruling on Anonymity Applications (16 May 2006).
183
Re Officer L
184
Their ciphers are: D, E, F, P132, P133, P134, A, P39, G, H, K, P89, J, P41, P42, P40, P38.
185
Though this Ruling was much more specific about the factors considered, it is not necessarily
more compliant in Article 2 terms than the rulings in the Billy Wright and Rosemary Nelson Inquiries.
While not party to the specific evidence on any individual, in a case investigating the death of a
citizen, one would expect the lines to be drawn very narrowly rather than the large groupings used
by the Robert Hamill Inquiry. It is not clear that the lines were finely tailored. Additionally, the large
number of applications suggests some very problematic practices and beliefs among the police as to
their entitlement to group amnesty.
64
Billy Wright Inquiry
The Billy Wright Inquiry opened hearings on 30 October 2006, but offered its first
rulings on anonymity before that date. Prior to the Re Officer L rulings, the Billy
Wright Inquiry used the tests established by R v Lord Saville of Newdigate ex parte A
[2000];186R[A] v Lord Saville of Newdigate [2002];187 and R [Family of Derek Bennett]
v HM Coroner for Inner London South [2004].188 From these cases, it developed a
four question test: was there a genuinely held fear; was this fear objectively
justified; would giving testimony be unfair for the witness without anonymity or
screening; and would the issues of fairness be alleviated by granting anonymity or
screening. It used this test to make its first determinations on anonymity.
The Inquiry appears to have next addressed anonymity on 11 January 2008, at
which time it incorporated the original and appellate rulings in Re Officer L as the
foundation for its decisions.189
With the law and procedure relating to anonymity established, it is possible to
identify some patterns within the issue of anonymity at the Billy Wright Inquiry and
these are worth considering in more detail.
186
1 WLR 1855.
1 WLR 1249.
188
EWCACiv 1439.
189
Individual Decisions by the Panel for Anonymity and Screening at the Billy Wright Inquiry.
187
65
Total Number of Anonymity Applications Received
Profession of
Number of
Number of
Applicant (serving Applications
Applications
and retired)
Received
Granted
Prison Officer or 33
0
Governor
PSNI Admin Post
4
2
PSNI Managerial 1
0
Post
Civil Service
4
2
Civilian
1
0
Police Officer
2
0
MLA
1
0
PSNI
Special 19
19
Branch
British
Army 3
3
Intelligence
Security Service
8
8
Number of
Applications
Denied
33
2
1
2
1
2
1
0
0
0
Applications before Re Officer L (9 October 2006 – 26 October 2006)
Profession of
Number of
Number of
Number of
Applicant (serving Applications
Applications
Applications
and retired)
Received
Granted
Denied
Prison Officer or 0
0
0
Governor
PSNI Admin Post
4
2
2
PSNI Managerial 1
0
1
Post
Civil Service
2
2
0
Civilian
0
0
0
Police Officer
2
0
2
MLA
0
0
0
PSNI
Special 0
0
0
Branch
British
Army 0
0
0
Intelligence
Security Service
0
0
0
66
Applications after Re Officer L (11 January 2008 – February 2009)
Profession of
Number of
Number of
Number of
Applicant (serving Applications
Applications
Applications
and retired)
Received
Granted
Denied
Prison Officer or 33
0
33
Governor
PSNI Admin Post
0
0
0
PSNI Managerial 0
0
0
Post
Civil Service
2
0
2
Civilian
1
0
1
Police Officer
0
0
0
MLA
1
0
1
PSNI
Special 19
19
0
Branch
British
Army 3
3
0
Intelligence
Security Service
8
8
0
As indicated by the charts above, two patterns emerge within the Billy Wright
Inquiry. The first is that, after 11 January 2008, there were no individuals granted
anonymity except for those in the Security Service, British Army Intelligence, and
PSNI Special Branch. This is notable in comparison to the data from before 11
January. Before 11 January, only four applications for anonymity were granted,
while after that date, 30 applications were granted – all of the applications by the
Security Service, British Army Intelligence, and PSNI Special Branch. This increase
could perhaps be explained by the change in test after the passing of Re Officer L;
however, the threshold for increase of threat appeared to change between the
applications from the Security Service/Special Branch and the applications from
everyone else. The standard used by the Inquiry to grant anonymity is that of a
“real and immediate” risk which is “objectively verified” and “present and
continuing”. Each member of the Security Service was granted anonymity – even
when the Panel recognised that there was no real or immediate threat to the
applicant applying for anonymity, the individual was given anonymity for the reason
that “there would be a potential threat to the lives of any agents who may be
identified by association or that the risk of identification would lead to a loss of
intelligence”. Though this “potential threat” to the life of “any agent” is not real,
nor immediate (as both the threat and the agent are possibilities instead of
realities), and the risk of a loss of intelligence isn’t a threat to life at all, it is
determined to be a sufficient basis for anonymity.
The Panel seemed to apply a different standard for applications which were not
made by the Security Service, Special Branch, or Army Intelligence forces. For
example, Witness R was concerned for his safety due to an incident in January
2008. His application was rejected, however, because the Panel determined that his
evidence was largely uncontroversial. The Panel issued his application decision, in
which it recognised that he (and other serving prison officers) was under attack by
67
dissident republicans in May 2008, but denied his application for anonymity..190
Similarly, Witness BB made an application for anonymity. The Panel recognised
that BB had been the subject of close scrutiny, that the substance of his testimony
would most likely have an effect on his threat level, and that the evidence he gave
would most likely be controversial. The Panel denied his application, however,
because there appeared to be little substance in the allegations made about
him.191For a final example, Witness CJ filed an application for anonymity because he
has had various threats to his life and warning from the police, the most recent of
which was in 2007. The Panel denied his application in July 2008 on the basis that
CJ has a public profile and lives in a Loyalist area, so is likely already known to the
paramilitaries. The Panel continued, stating “dissident republican groups continue
to pose a significant threat. There is no evidence that dissident loyalists amount to
anything more than disgruntled people who do not have community support”.192
The second indication of inconsistent standards between the Security Service and
other applicants in the anonymity applications for the Billy Wright Inquiry is the
burden of proof required to establish the necessity for anonymity. In the decisions
regarding the applications for officers, whether of the NIPS, PSNI, or Civil Service,
the wording of anonymity decisions appeared to place the burden of proof on the
applicant to demonstrate that anonymity was needed. This is evident in the
language used by the Inquiry in some of its decisions, for example: “...there is little
support for this proposition,” and “...there is no objectively verifiable threat to the
applicant’s life”. However, in the decisions regarding the applications for anonymity
by members of the Security Service, the wording seemed to reverse the burden of
proof. For such applications, anonymity was granted when no objections had been
raised. For example the Inquiry used phrases such as, “...we do not consider that
there is in his case any countervailing reason why his evidence should be given
openly,” and, “...substantive testimony will be heard by the public, identification is
not essential to the delivery of the evidence”.193
The final point of importance in the Billy Wright Inquiry anonymity decisions is that
the content of the decisions changed significantly after the Panel began to use the
Re Officer L standard, in a manner which reduced the transparency of the decision
and thus lowered the possibility of any compliance with Article 2. The applications
before January 2008 contained a list of the criteria used by the Panel in considering
each application. After that date, there was only a small paragraph in which the
Panel said that it considered the application on a common law basis, having regard
190
The Billy Wright Inquiry Anonymity Decision for Witness R: May 2008:
http://webarchive.nationalarchives.gov.uk/20100330142819/http://billywrightinquiry.org/filestore/
documents/rulings/Anonymity_Decision_Witness_R.pdf
191
The Billy Wright Inquiry Anonymity Decision for Witness BB: May 2008:
http://webarchive.nationalarchives.gov.uk/20100330142819/http://billywrightinquiry.org/filestore/
documents/rulings/Anonymity__Decision_Witness_BB.pdf
192
The Billy Wright Inquiry Anonymity Decision for Witness CJ; July 2008; Paragraph 15:
http://webarchive.nationalarchives.gov.uk/20100330142819/http://billywrightinquiry.org/filestore/
documents/rulings/Anonymity_Decision_Witness_CJ.pdf
193
The Billy Wright Inquiry Anonymity Decision for Witness DO1; January 2008; paragraph 16:
http://webarchive.nationalarchives.gov.uk/20100330142819/http://billywrightinquiry.org/filestore/
documents/Witness_DO1__Anonymity_Decision.pdf
68
to Article 2 issues. Additionally, the wording of the decisions indicates that parts of
the decisions were copied and pasted from one application to another – perhaps
indicating that a pro forma approach was being used when considering applications.
This can be seen not only by the similarity in wording but also by slight errors. For
example, page 4 of Witness “AD’s” decision references “former army intelligence
officer.”194 Though “AD” is a serving officer, the previous decision related to a
former army intelligence officer (Witness “AA”). It appears that Witness “AA’s”
decision was copied and pasted into that of Witness “AD”.195
194
The Billy Wright Inquiry Anonymity Decision for Witness AD; August 2008; paragraph 16.
The similarities to Witness AA’s Anonymity decision can be clearly seen here:
http://webarchive.nationalarchives.gov.uk/20100330142819/http://billywrightinquiry.org/filestore/
documents/rulings/Witness_AA.pdf
195
69
6. Conclusions
Overall Experience
These three Inquiries were the product of the Northern Ireland peace process.
Although they were rooted in a very political act, the legal and political validity of
vindicating Billy Wright, Rosemary Nelson and Robert Hamill’s rights after their
highly controversial deaths seem to be best served through public inquiries – NGOs
and families worked hard to ensure this outcome for many years. Of course, given
the substantial number of controversial deaths during the course of the conflict,
there are many other equally deserving cases that would benefit from a public
inquiry.
What is perhaps surprising is that three Inquiries that arose from the same political
process should have been so different from one another in substance and practice.
The Billy Wright Inquiry was the least accessible and transparent of the three
inquiries observed. It was the first of the three to publish its report. 196 In the
report, the Inquiry rejected Judge Cory’s broad reading of “collusion.” Even with the
narrower definition they proposed, the Inquiry found that there was no
government collusion in the murder of Billy Wright. They did address, however, the
multitude of systemic failings within the Northern Ireland Prison Service, and
recommended ‘that the [Secretary of State for Northern Ireland] SOSNI and those
with recently devolved authority should consider whether a similar process might
pave the way for radical change in the way that the NIPS is managed and, among
other matters, how its industrial relations are conducted’197.
The Rosemary Nelson Inquiry caused controversy by adopting the unusual
methodology of channelling all questions at hearing through the conduit of Counsel
to the Inquiry. The NGOs conclude that a more adversarial approach should have
been used, and that in using this system, the process lost more than it gained. It
conferred too much power on Counsel to the Tribunal, thus bringing the Tribunal
Panel too closely into the arena, while depriving the process of the checks and
balances that distinct representation of each Core Participant brings. This process
also limited the extent to which the Inquiry could support victims and be accessible
to the public. The lack of these elements is not in itself an Article 2 violation but
does detract from the compliance of the Inquiry with international obligations.
The Rosemary Nelson Inquiry refused BIRW’s application for Core Participant status,
and we believe that this decision deprived the Inquiry of an opportunity to deal
effectively with the issue of collusion, or to examine the murder of Rosemary
Nelson in the context of BIRW’s unrivalled expertise in the matter of intimidation of
defence lawyers in Northern Ireland. Although BIRW’s Director was called as a
196
197
The report of the Robert Hamill Inquiry is still awaited.
The Billy Wright Inquiry Report; page 645; paragraph 16.21.
70
witness, she was treated as a witness of fact rather than as an expert witness. The
same was true of CAJ’s then Legal Officer.
The Robert Hamill Inquiry was the most accessible and transparent of the three,
perhaps because its legal team took and continues to take, a keen interest in the
running of Inquiries.198 In granting Observer Status to the NGOs, the Robert Hamill
Inquiry created a halfway point between the status of an ordinary citizen and that
of a Core Participant.
The Robert Hamill Inquiry invited CAJ and BIRW to make closing submissions to the
Inquiry – an unprecedented request, so far as we know. Until we see the final
report of the Inquiry, we will not know whether our submissions had any impact on
the Inquiry’s findings, but the process of preparing our submissions meant that we
were able to familiarise ourselves with all the evidence put before the Inquiry to a
much greater extent than was the case for the other two Inquiries. Although we
were glad to be asked to make closing submissions, we believe that the Chair of the
Inquiry acted wrongly in opening our submissions up to hostile questioning from
Core Participants, something which did not happen in relation to any of their closing
submissions.
It seems that the lesson to be drawn by comparing these three diverse inquiries is
that whether an inquiry achieves the outcomes of resolving issues and recovering
“the truth” is heavily dependent upon who is on the Inquiry Panel and who is in
their legal team.
In all three inquiries, the panels were drawn from outside Northern Ireland but
from within the UK. While this choice gave each panel the appearance of
impartiality in relation to contentious issues arising out of the Northern Ireland
conflict, it could not guarantee a lack of bias, as people throughout the UK have
been affected by the conflict and individuals may well hold strong opinions about it.
It certainly meant that the panel members brought no special understanding of
Northern Ireland to their task, or to the issue of collusion, and this may be why the
two inquiries who have reported (the Billy Wright and the Rosemary Nelson
Inquiries) failed to tackle the issue of collusion adequately. While in no way wishing
to cast any aspersions on those who served as panel members, we would suggest
that, in such contentious and politicised cases, all of them engaging Article 2, there
would be some benefit to having an international rather than a local panel and a
great deal of benefit in ensuring that at least one panel member was a human rights
expert.
The legal teams also had a huge influence on the conduct of the inquiries, and they
too were drawn from outside Northern Ireland but within the UK. We found that
the Robert Hamill Inquiry was the most aware of our observers’ needs and were the
most responsive to our requests.
198
The legal team has gone on to lead another Inquiry - the Inquiry was into the death in London of
Azelle Rodney, shot by the Metropolitan Police in 2005.
71
Something which all three inquiries did, taking their cue from the Bloody Sunday
Inquiry, was to have a quiet room available for family members when they wanted
to withdraw from the public gaze. This was important because some of the
evidence given at each inquiry was very distressing for family members. However,
the insistence on the part of all three inquiries that everyone leave their mobile
telephones outside the inquiry area meant that on occasions family members were
isolated from others who were unable to be present.
As a result of our in-depth observation of and interaction with all three inquiries,
we have a number of recommendations for future inquiries.
Recommendations
Initiating an Inquiry
As Northern Ireland continues its transition from conflict to peace there are
ongoing calls for inquiries into controversial conflict-related deaths that go
unheeded. The determination of whose death receives an inquiry seems to depend
on how much political and/or public pressure can be brought to bear in particular
cases. The Rosemary Nelson, Robert Hamill, and Billy Wright Inquiries were the
result of such political pressure. The British government has formally indicated that
there will be no further public inquiries into conflict-related incidents199. However,
it is CAJ’s and RWUK’s (former BIRW) view that further inquiries can never be
definitively ruled out, and should remain fully open as measures to respond to
historic or contemporary controversy. The failure of the UK government to hold an
inquiry into the murder of Pat Finucane is currently subject to judicial review
proceedings. The review carried out by Sir Desmond De Silva QC’s did not meet
Judge Cory’s recommendation of an inquiry into this death and did not have the
support of his family or NGOs monitoring this case.
In our view, rather than leaving the matter to political decision, clearer guidelines as
to the circumstances requiring the establishment of an inquiry should be compiled
by a group of independent legal experts based on international standards. This
could then be the subject of a public consultation. This group could also be tasked
with advising on the best set of practices and procedures for the operation of any
public inquiry.
199
As the Rt Hon Owen Paterson MP, Secretary of State for Northern Ireland, remarked when
commenting on the publication of the final report of the Billy Wright Inquiry, “Let me reiterate to the
House, as my right hon. Friend the Prime Minister has done, that there will be no more costly and
open-ended public inquiries.” Hansard, HoC, (14 September 2010), column 745.
72
Central Sponsoring Department
The attraction of the approach is that a central sponsoring department for inquiries
could be established which would mean that expertise is concentrated centrally,
and the budgetary burden of an inquiry would be lifted from whichever
government department happens to have the greatest interest in the inquiry at a
particular time and removed to the Prime Minister’s office and/or that of the First
and Deputy First Minister in Northern Ireland. The natural repository would be the
Ministry of Justice, although this institutional location could cause difficulty if the
Ministry were to be an interested party. Moreover, there is a significant advantage
in having independent lawyers involved in inquiries, rather than government
lawyers, so rather than furnish counsel and secretaries to inquiries from within the
sponsoring body, a specialist panel of lawyers from the professions should be
established, some of whom already have experience of inquiries and some of whom
would gain experience by acting as junior counsel or assistant secretaries.
Who Should Decide the Format of the Inquiry
At the moment inquiries (even those held under the Inquiries Act) vary
tremendously in format because it is left to chairs and their legal teams to proceed
as they think fit.
The same independent working party as mentioned above should draw up rules of
procedure for inquiries, drawing on best practice, the jurisprudence of the ECtHR,
and any other relevant international human rights norms or instruments (including
especially the UN Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions).
Setting the Terms of Reference
The people who are always left out of the process of setting the terms of reference
are the victims/survivors of the events that necessitated the inquiry in the first
place. There may also be other interested parties, such as NGOs, who have
something useful to contribute to the process. A brief public consultation period
would allow for input from any interested parties and others with specialist
knowledge.
The independent Inquiries Unit mentioned above should draw up draft terms of
reference for the inquiry. These draft terms of reference should be put out to a
period of public consultation in accordance with the government’s Code of Practice
on Consultation200.
The Inquiries Act 2005 and the Inquiry Rules 2006
200
http://www.bis.gov.uk/files/file47158.pdf
73
The Inquiries Act fails to meet the test of independence set down by the ECtHR, as
it gives too much power to the Secretary of State. This is undesirable, particularly if
she/he, or his/her department, is an interested party. There was a need for this to
be reviewed by an independent working party.
This need was observed by the House of Lords Select Committee on the Inquiries
Act 2005. The committee’s aim was to clarify the role of inquiries and provide
recommendations to promote more open, cost effective and expeditious inquiries;
its report was released in March 2014201. RWUK provided both written and oral
evidence to the committee that was carefully considered. 202
Despite this consideration, the report failed to account for many of the criticisms of
the Inquiries Act 2005. As a result, the effectiveness of an Inquiry could be
undermined. There is a need for further scrutiny of the Act in order to ensure
international human rights compliance.
Requests for Disclosure of Documents
Current practice is to be overly cautious in relation to disclosure and redaction.
Some inquiries have also experienced problems in obtaining disclosure from public
bodies.
There should be a presumption in favour of disclosure of unredacted documents at
any inquiry. We suggest that the an Inquiry adopt the reasoning as delineated in the
judgment of Chief Constable v Coroner203 handed down on 27 May 2010. Any party
to an inquiry should have the right to seek redactions. Any such application should
be decided by the Chair and there should be an adverse inference drawn by the
court where non-disclosure takes place. The application should also have the ability
to be judicial reviewed.
Once any application for redaction has been decided, there should be a
presumption in favour of making public all documents considered by an inquiry. Any
interested party (including but not limited to parties to the inquiry) shall have the
right to apply to the chair to prevent a document being made public. Any decision
on this matter by the chair should be amenable to judicial review. Inquiries should
have the power to demand disclosure, in full and unredacted, from any public body
or private person.
Procedure for the Questioning of Witnesses by Legal Representatives
All parties to an inquiry should have the right to question any witness, subject to
the limitations of the terms of reference and the oversight of the Chair to prevent
201
The House of Lords Select Committee on the Inquiries Act 2005 report:
http://www.publications.parliament.uk/pa/ld201314/ldselect/ldinquiries/143/143.pdf
202
Chris Curry’s (RWUK) article on the House of Lords Select Committee on the Inquiries Act report.
http://www.rwuk.org/all/select-committee-releases-report/
203
Judgment delivered 27.5.10 [2010] NIQB 66, (Chief Constable’s application for leave to appeal
dismissed on 29.9.10).
74
repetitious or otherwise unfair questioning. Treatment of witnesses should be in
accordance with both domestic and international standards, in particular the
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power204.
Minimising Delay
A common criticism of inquiries has been the length of the proceedings and the
associated legal costs. In particular, the failure of public authorities to disclose
crucial documentary evidence to inquiries has resulted in additional hearing days
and criticism being levied against them.
By definition, an inquiry is unable to meet the requirement of promptness, because
they only happen when all other aspects of the justice system has failed.
To overcome this, and to ensure public confidence, inquiry proceedings must be
expeditious in accordance with international standards. At the outset, a timetable
for the provision of all relevant material should be handed down by the Chairman,
with the agreement of the parties. Failure to comply with this, without reasonable
cause, should result in penalties being imposed by an inquiry, with the possibility of
the drawing of adverse inferences in response to a failure to provide accurate
information promptly.
Interview Process for Witnesses
CAJ and RWUK note with concern that a number of witnesses refused to sign their
statements to the Inquiries. When witnesses are giving their statements they
should be made in the presence of at least two interviewers and be recorded. The
witness should have the right to amend the statement resulting from the interview,
but should also be required to sign the statement once any amendments have been
agreed and to make a declaration as to whether she/he will attend the oral hearings
to give evidence if called upon to do so. In the absence of agreement to sign a
statement or to attend as a witness, the two persons taking the statement should
sign a declaration as to the accuracy of what was said/ recorded, and the statement
should be admissible in evidence without right of challenge and in the absence of
the witness. These facts should be made clear to the witness at the time of signing.
All witnesses should have the right to publicly-funded legal representation at the
time of making a statement. This ensures compliance with the third Salmon
Principle:
“any person involved in an inquiry as a witness should:
a) be given an adequate opportunity of preparing his case and of being
assisted by legal advisers; and
b) normally have his legal expenses met out of public funds.”205
204
Adopted by General Assembly resolution 40/34 of 29 November 1985.
The Royal Commission on Tribunals of Inquiry chaired by Lord Justice Salmon in 1966 established
six cardinal principles of fair procedure under the Tribunals and Inquiries Act 1921:
http://www.publications.parliament.uk/pa/cm200405/cmselect/cmpubadm/51/5114.htm
205
75
Anonymity
After comparing the approaches of the Billy Wright, Rosemary Nelson and Robert
Hamill Inquiries, the importance of releasing individual anonymity decisions has
been clearly illustrated by the table we have compiled with regards to the
applications considered by the three Inquiries.206Although there were concerns
about the amount of information to be redacted from such applications, for the
purposes of transparency and accountability, it is important that any decisions
made are available to the public and that they convey the tests applied in each
application and the individual concerns and reasons behind the application.
The decision process from the Robert Hamill Inquiry seems to be more transparent
than that of the Rosemary Nelson and Billy Wright inquiries. Whilst individual
anonymity decisions were not published on the Inquiry website and we were not
granted access to the anonymity hearings, the Panel was clear about how they
made the determinations and their rationale for doing so.
Consequently, our observation across all three Inquiries, is that the more desirable
approach in future would be for public inquiries to: make publicly available
individual anonymity decisions in conjunction with a document which explains in
narrative form the rationale adopted by the Inquiry when considering particular
groups of applications such as, those from civilians, those from former members of
security forces, and those from current members of the security forces. It should
always be borne in mind by inquiries that the victims are never afforded anonymity,
and this should be weighted in the balance against applications from others, as
should the relative risk to the lives of those involved. Whilst we would never
discount any real risk to life, we would advocate that a risk to life which already
exists, whether for a victim or a witness, should be discounted in the public interest
in achieving restorative justice.
Giving Oral Evidence
Under the Inquiries Act 2005 and Inquiry Rules 2006, a witness who is a Core
Participant may be examined and cross examined only by Counsel to the Inquiry or
by a lawyer for another Core Participant, although the Chair may designate a
witness a Core Participant at any time. We note the differing approaches taken by
the inquiries here. If all questions are channelled solely through Counsel to the
Inquiry this may damage the effectiveness of the inquiry in allaying public fears.
Lines of questioning/argument may not be treated with the same level of
importance that witnesses or Core Participant feel they deserve, and may
contribute to the perception that lawyers are not discharging their duties
effectively, increasing criticisms of legal expenses in public inquiries.
To help foster mutual respect between the inquiry and legal representatives of the
witnesses/interested parties, an inquiry Chair should operate on a presumption that
206
See Appendices 1, 2 and 3.
76
questioning by legal representatives be accepted unless plainly unnecessary,
repetitive or irrelevant.
Publication of Oral Testimony of Witnesses on Inquiry Website
In the interest of public access and transparency, all evidence before an inquiry
should be made publicly available via the internet. The Chair, should however,
have discretion to rule that any such evidence should not be made available if it
would contravene the ECHR, for example on grounds of the right to life or privacy.
It should be possible to judicially review any such ruling.
Powers of Compulsion
To ensure public confidence in an inquiry, it is essential that an inquiry Chairman
invokes his or her power to compel production of evidence and witnesses. Where
there are allegations of official wrongdoing, proper consideration must be given to
invoking the power to impose fines or sentences if the government or individuals
refuse to comply, in accordance with international standards, in particular, the
Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and
Summary Executions and the Model Protocol for a legal investigation of extra-legal,
arbitrary and summary executions207. In the absence of such production, the
inquiry should have the power to draw inferences.
Observer Status
NGOs often have an interest in a public inquiry, either because their work helped to
bring it about, because they have a particular interest or expertise in the subject
matter, or because they are supporting the victims/survivors of the events which
led to the inquiry being established. NGOs and other expert groups already have
the right, as members of the public, to observe and monitor inquiries. They should
also be recognised as having a specifically defined status that fully recognises their
independent expertise on the matter in question and their consequent potential
value to the inquiry.
The rules on inquiries should allow for any NGO with some degree of relevance and
previous work on the issue to apply to the Chair for observer status. Any refusal by
the chair with regard to this application should be judicial reviewable. The costs of
any such judicial review should be met from the public purse unless the court
deems the challenge to be vexatious. Any NGO who achieves observer status
should be allowed to be present at inquiry hearings and to have access to
documents on the same basis as Core Participants to the inquiry.
In situations where confidentiality is enjoined on the parties to the inquiry, any
NGO with observer status shall be similarly enjoined. Any breach of confidentiality
by such an NGO shall result in the immediate termination of their observer status
207
United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and
Summary Executions, U.N. Doc. E/ST/CSDHA/.12 (1991).
77
and may put them in contempt of the inquiry, unless they can show in a court of
law that such a breach was in the public interest.
Giving of Evidence by NGOs
NGOs that have played a key role in the establishment of the inquiry or have
significant knowledge and insight into the matters under consideration should be
given the opportunity of being assisted by legal representatives at the public
expense.
Consideration should be given by the Chair to calling any NGO with relevant
expertise as an expert witness. Any NGO who supplies expert evidence shall not be
precluded from applying for observer status. The rules shall provide for the Chair to
have the discretion to invite any NGO to address the inquiry at any point in the
proceedings. In that event the NGO will be treated on the same basis as a Core
Participant to the inquiry (i.e. as an advocate and not as a witness).
Once such status is afforded to an NGO, the inquiry must provide them not only
with appropriate official recognition of their value to the inquiry, but must ensure
that practical measures. This enables the inquiry to fully benefit from their
contribution, through: access to a designated contact within the inquiry such as the
Counsel to the Inquiry or Inquiry Solicitor; designated seating at the hearing venue;
the right to cross-examine witnesses and make opening and closing submissions,
both written and oral; the right to advanced disclosure of materials; and the
possibility of legal advice and representation at public expense.
Viewing of Report
To ensure public confidence in the inquiry process, it is important that it is not
perceived that the government is given preferential treatment, by having advance
sight of the report, before publication, in contrast to the family and other Core
Participants.
As well as governmental bodies having advance sight of the report to ensure Article
2-compliance, the family, together with their legal representatives, should also have
advance notice as should all interested parties who request it, as should other Core
Participants. They should be given adequate time in advance of publication, to
enable them to consider it in detail. All persons who have advance sight of the
report, before it is delivered to government, should sign a declaration of
confidentiality in terms set out by the inquiry.
78
Appendices
79
Appendix 1: Billy Wright Inquiry List of Screened Witnesses & Closed Hearings
DAY
24
25
Screened
witness
1
Closed
session
1
38
1
57
1
70
126
127
134
1
1
1
135
137
1
1
3
138
142
147
151
1
1
1
1
1
Notes
Screened Witness DO1
Closed session. Only referenced in Day 24
transcript.
Closed session regarding issue in relation to an
application for production of statements and
documents by the PSNI.
Closed session in relation to Mr Caher and the
CSO and their representatives. “It has to be held
in camera, because a matter of confidence is
involved.”
Screened Witness ZAM
Screened Witness HAG
Screened Witness EA
Closed session. No witness name, cipher, or
reason given.
Screened Witness ZCV (Special Branch)
Closed session in relation to Witnesses DG and
ZBQ. Also, closed session in relation to Witness
ZCQ: “The proposed subject matter of the closed
hearing is part of the evidence given by Witness
ZCU, who gave his evidence entirely in closed
session on Friday last week.”
Closed session in relation to witness ZCQ.
Closed session in relation to Mr Christopher
Albiston.
Screened Witness ZBS. Part of Witness ZBS’
evidence was given in closed session.
Closed session.
80
Appendix 2: Rosemary Nelson Inquiry List of Screened Witnesses & Closed
Hearings
DAY
34
36
37
38
39
44
45
51
52
54
55
57
62
64
65
67
Screened
witness
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
2
69
70
71
1
1
2
72
2
73
75
76
79
1
1
1
2
1
1
80
1
1
82
83
84*
1
1
85
2
87
Closed
session
Notes
Screened witness – C150
Screened witness – C138
Screened witness – P135
Screened witness – P128
Screened witness – P160
Screened witness – P228
Screened witness – P117
Screened witness – P121
Screened witness – P121
Screened witness – P285
Screened witness – P146
Screened witness – A683
Screened witness – P136
Screened witness – B144
Screened witness – P226
Screened witness – G105, Screened witness
G115
Screened witness – S519
Screened witness – S703
Screened witness – S284, Screened witness
S436
Screened witness – S966, Screened witness
S255
Screened witness – P276
Screened witness – B662, closed hearing also
Screened witness – A681, closed hearing also
Screened witness – B597, screened witness
B625
–
–
–
–
Screened witness – B511, also closed session
Screened witness – B552, closed hearing at
another date
1
1
Screened witness – B509
No transcript published. Anonymous witness –
cipher unknown.
Screened witness – B632, screened witness –
B508
Closed session before public proceedings – does
not state which witness was present during this
81
session
88
2
Screened witness – A620, screened witness
C284
89
1
Screened witness – B576
90
1
1
Screened witness – B651, also a closed session
92
1
Screened witness – P157
93
1
Screened witness – P157 continued
94
1
Screened witness – B503
95
1
Screened witness – A645
96
2
Screened witness – A660, screened witness
A643
97
1
2
Screened witness – B663, closed session then
private session with O675
101
2
Screened witness – P614, screened witness –
A189
102
1
Screened witness – A556
103
1
Screened witness – S188
104
1
1
Closed session – S224, screened session – S224
106
1
Closed session – Sam Kincaid
107
1
Screened session – M540
108
1
1
Screened session – M540, closed session M540
109
1
Closed session – Arthur Parvoorst
110
1
Screened witness – B542
111
1
1
Screened witness – B542, closed session B542
112
1
Screened witness – B567
113
1
Closed sessions am & pm – B567
114
1
1
Closed session – Colin Port, Screened witnessB629
115
1
1
Screened witness – B629, Closed session – B629
116
1
Screened witness – A642
119
1
Closed session – Robert Ayling
120
1
1
Screened witness – B141, closed session also
B141
 58 Screened witness sessions – 52 screened witnesses
 18 closed sessions – 4 of which were with witnesses who do not have
anonymity
*Day 84 the Inquiry held a closed hearing with an unknown anonymous witness and
as a result no transcript was published. It is not clear if this unknown witness gave
any of their evidence in public session.
** It is difficult to tell if a single word, a phrase or a substantial part of a line is
redacted as when a redaction is made, the word redaction is often only used once
and not repeated where several words have been redacted.
82
Appendix 3: Robert Hamill Inquiry List of Screened Witnesses & Closed Hearings
DAY Screened Closed
Notes
witness
session
9
1
Closed session – subject not indicated.
10
1
Closed session to hear an application by Mr McComb
– subject of application not indicated
11
3
Three in closed sessions – subject/reason not
indicated. Two witnesses gave evidence in public on
this date Edward Honeyford and James Murray.
12
1
Mr Underwood QC, Inquiry Counsel indicated that
there was a closed session to deal with matters
arising from an order by the Inquiry chairman the
previous day.
21
1
Closed session to hear an application from Mr
McGrory QC, representative for the Hamill family.
25
1
Closed session to hear application by Mr McComb –
subject of application not indicated.
26
2
Closed session to hear application by Mr McGrory QC
– subject of application not indicated. Additional
brief closed session at close of day – subject not
indicated.
28
3
Closed session to hear an application by Mr McGrory
QC – subject of application not indicated. Additional
closed session during testimony of Mr Hanvey. Final
brief closed session to hear an application by Mr
Adair – subject of application not indicated.
30
1
Closed session for Mrs Dinsmore – subject not
indicated.
32
1
Closed session to hear application by Mr Adair
regarding testimony by Tracey Clarke.
40
1
Closed session – subject not indicated.
47
1
Closed session to hear an application from Mr
McGrory QC – subject not indicated.
55
2
Closed session to hear an application by Mr Killop –
subject of application not indicated. A further closed
session in the afternoon – subject of closed session
not indicated.
58
1
Closed session. No witness name or cipher, Mr
Underwood QC, Inquiry Counsel, simply said, ‘...there
is an allocation to be made in closed session by a
gentleman who has not been party to these
proceedings. Perhaps I can ask for the chamber to be
cleared.’
60
1
Closed session – subject not indicated.
65
1
Short closed session – subject not indicated.
 No screened witnesses
 18 closed sessions
83
Appendix 4: Billy Wright Inquiry Redactions Table*
DAY
Instance
s
of
Name
redactio
n
3
2
4
2
13
1
14
1
17
18
2
21
1
24
1
30
33
2
2
34
2
39
1
41
12
42
2
47
1
51
1
53
1
58
2
Full lines
of
questionin
g
/
answers
redacted
1
Single
words/ Notes
sections of a line
redacted
in
questions/answers
**
3
1
1
1
Name within a quote of
another document and text
quoted
from
another
document.
Name within a quote of
another document.
Witness Maxwell Murray, age
redacted.
Also, name of
individual referenced by
witness.
Name
of
individual
referenced by witness.
Names redacted
Witness
Charles
James
William Neill, age redacted.
Name
of
individual
referenced by witness.
Name
of
organization
redacted.
Name of prisoner
Names
of
individuals
referenced by witness.
Names
of
individuals
referenced by witness.
Name
of
individual
referenced by witness.
Names
of
individuals
referenced by witness. Also,
name of group within Security
Service.
Name of group within
Security Service.
Name of group within
Security Service.
Name within a quote of
another document.
Name
of
individual
referenced by counsel.
Number of individuals with
84
59
4
61
4
62
1
66
1
68
71
1
1
72
7
74
3
75
6
81
2
82
6
85
1
88
2
89
1
90
1
92
6
93
1
95
1
96
2
97
3
the
surname
Hanna
referenced by witness.
Names
of
individuals
referenced by witness.
Names
of
individuals
referenced by witness (2 are
Witness ZAM)
Name
of
individual
referenced by witness.
Name within a quote of
another document.
Name redacted – Witness BW
Name within a quote of
another document.
Name
of
individual
referenced by witness (4 are
Witness BP)
Name
of
individual
referenced by witness (2 are
deceased Security Governor
from the Maze)
3 are names within a quote of
another document, 3 are
names
of
individuals
referenced by witness.
Names
of
individuals
referenced by witness.
Names
of
individuals
referenced by witness.
Name within a quote of
another document.
Names
of
individuals
referenced by witness.
Name
of
individual
referenced by witness.
Name
of
individual
referenced by witness.
Names
of
individuals
referenced by witness.
Name
of
individual
referenced by witness.
Name
of
individual
referenced by witness.
Names
of
individuals
referenced by witness.
Names within quotes of other
documents.
85
98
1
99
4
100
13
101
5
107
1
109
2
111
2
113
1
126
1
2
139
6
141
3
147
1
151
2
152
6
155
4
TOTA 136
L
1
3
Name within a quote of
another document.
Names
of
individuals
referenced by witness and
counsel.
3 are names within quotes of
other documents, 10 are
names
of
individuals
referenced by witness.
Names
of
individuals
referenced by witness and
counsel.
Name
of
individual
referenced by witness.
Names
of
individuals
referenced by witness (1 is in
a document read by witness)
Names within quotes of other
documents.
Name
of
individual
referenced by witness.
1 is the Head of the Security
Service Assessments Group, 2
are questions regarding Mr
Shannon which were not
answered by witness.
Words within quotes from
other documents.
3 are references to Witness
E9 and 1 is an address within
a quote from another
document.
Name of future witness
redacted.
Name
of
individual
referenced by witness and
counsel.
Names
of
individuals
referenced by witness and
counsel.
Names
of
individuals
referenced
in
other
documents.
13
86
*This table notes instances of redactions to Inquiry transcripts – not the documents
and materials used. Therefore it records when a name has been redacted from the
transcript or a document has been read aloud during the hearing and a redaction
has occurred in that document. Figures do not include references to redactions by
witness, Counsel or Panel Members for example, ‘...the name is redacted in this
document’, or, ‘...this document contains several redactions.’ The reason that such
references have not been included is that it is impossible for us to place these
references in the context of the number of redactions made in documentary
evidence as not all evidence is public and due to the volume of evidence available
publicly on the Inquiry website.
** It is difficult to tell if a single word, a phrase or a substantial part of a line is
redacted as when a redaction is made, the word redaction is often only used once
and not repeated where several words have been redacted.
87
Appendix 5: Rosemary Nelson Inquiry Redactions Table*
DAY
Instances Full lines of
of Name questioning
redaction / answers
redacted
6
8
2
4
9
1
10
14
23
25
27
28
29
33
35
36
48
50
1
Single
words/ Notes
sections of a line
redacted
in
questions/answers**
Some
contained
in
documents read aloud by
counsel
Contained in a document
read aloud by counsel
1
Address redacted
Case name redacted
2
15
Addresses redacted
1
7
7
2
1
10
1
1
1
51
1
52
1
55
6
63
3
64
1
3
Redacted in a letter
Name of a newspaper
redacted
Used
in
place
of
area/address
where
‘Tom Cusack’ was from, a
man who witnessed an
assault on R Nelson
Journalist’s name suspect
McKeown
made
allegations
of
involvement in R Nelson
murder
Name
of
a
Superintendent redacted
on three occasions
A
Superintendent’s
surname
redacted,
another two instances
where
a
Superintendent’s
full
name is redacted
Place name redacted. A
88
70
1
71
72
73
76
77
number of partial line
redactions
refer
to
‘details
redacted’
–
appear details relate to
security service in terms
of locations and either
system names or details
Discussion surrounding
UDA, under car booby
trap bomb being used
before
by
the
paramilitary group
2
4
1
2
21
9
1
2
78
2
79
80
82
83
85
86
1
11
7
3
12
2
1
2
89
90
91
94
97
18
7
5
11
Used in reference to
Assessment Group
Name of an Inspector
redacted
A Chief Inspector’s name
redacted and alleged
Sinn
Fein
parades
organiser’s
name
redacted.
One
instance
in
reference to a type of
paramilitary
organisation.
Name of a policeman
alleged to have made
derogatory
remarks
about Rosemary Nelson
– redacted on two
occasions
21
35
10
3
4
4
4
1
Questions and answers
redacted for 29 lines in
succession page 60
4
89
99
105
106
107
108
109
110
112
113
114
115
116
1
1
1
1
1
26
64
26
7
63
1
39
1
14
3
1
117
118
120
122
3
123
5
124
125
126
3
26
30
5
36
1
33
1
16
1
Name of a sergeant
redacted in a document
that was read aloud
24
39
26
7
74
Hotel name redacted
13
26
15
2
2
11
396
Person’s name referred
to in the context of an
alleged
relationship
several times
Not all names of persons,
some are potentially
reference to a position or
rank held by someone
e.g. in the security
service and in one
instance the name of an
analysis
4
1
10
403
*This table notes instances of redactions to Inquiry transcripts – not the documents
and materials used. Therefore it records when a name has been redacted from the
transcript or a document has been read aloud during the hearing and a redaction
has occurred in that document. Figures do not include references to redactions by
witness, Counsel or Panel Members for example, ‘...the name is redacted in this
document’, or, ‘...this document contains several redactions.’ The reason that such
references have not been included is that it is impossible for us to place these
references in the context of the number of redactions made in documentary
evidence as not all evidence is public and due to the volume of evidence available
publicly on the Inquiry website. Also, it may be the case that the same address or
90
name has been redacted more than once but transcripts do have a method of
recording duplicate redactions.
** It is difficult to tell if a single word, a phrase or a substantial part of a line is
redacted as when a redaction is made, the word redaction is often only used once
and not repeated where several words have been redacted.
91
Appendix 6: Robert Hamill Inquiry Redactions Table*
DAY
Instances Full lines of
of Name questioning
redaction / answers
redacted
9
1
20
22
1
2
23
26
20
1
29
32
61
60
59
Single
words/ Notes
sections of a line
redacted
in
questions/answers**
1
1
1
Unclear how many
lines as transcript
merely states ‘section
redacted’.
Name of witness D.
Address
redacted.
Name of a person at
Tracey
McApline’s
house party. Name of
Tracey
Clarke’s
mother. A section was
also redacted and it is
unclear how many
lines it contains.
Church
minister’s
name.
Address redacted.
4
33
32
instances
of
addresses redacted. A
section
was
also
redacted and it is
unclear how many
lines it contains.
1
20
56
57
51
1
2
66
1
1
65
TOTAL
3
34
Transcript
states
number
of
lines
redacted.
Address redacted.
2 addresses redacted
Name of P134
Name
of
Andrea
McKee redacted in a
piece of evidence read
aloud
22
38
92
*This table notes instances of redactions to Inquiry transcripts – not the documents
and materials used. Therefore it records when a name has been redacted from the
transcript or a document has been read aloud during the hearing and a redaction
has occurred in that document. Figures do not include references to redactions by
witness, Counsel or Panel Members for example, ‘...the name is redacted in this
document’, or, ‘...this document contains several redactions.’ The reason that such
references have not been included is that it is impossible for us to place these
references in the context of the number of redactions made in documentary
evidence as not all evidence is public and due to the volume of evidence available
publicly on the Inquiry website.
** It is difficult to tell if a single word, a phrase or a substantial part of a line is
redacted as when a redaction is made, the word redaction is often only used once
and not repeated where several words have been redacted.
93
Appendix 7: Billy Wright Inquiry Legal Teams and Counsel
Counsel to the Inquiry
Derek Batchelor QC (to June Henry Palin
2008)
Angus Stewart QC (from June
2008)
Murdo MacLeod QC
Dr Eugene Creally
Counsel and Solicitors representing David Wright and the Wright family
Seamus Treacy QC (to January John McAtamney, John McAtamney & Co
2007)
Alan Kane QC (from January
2007)
Rory Donaghy
Counsel and Solicitors representing the Northern Ireland Prison Service208, the
Northern Ireland Office and individual staff
Jeremy Johnson
Charles Bourne
Paul Greatorex
Beatrice Collier
Jane Lawrence, Treasury Solicitors
Counsel and Solicitors representing individual prison staff
Jason Beer
John-Paul Waite
Russell Fortt
Ken Boyd, Caroline Martin, Crown Solicitor’s Office
Counsel and Solicitors representing the Prison Officers’ Association
Frank O’Donoghue QC
Michael Egan
Maurice Diamond, Catherine Chambers, Diamond
Heron
Counsel and Solicitors representing the PSNI209 and individual staff
Alva Brangham QC
Mike Dunn
Andrew Brown
Mike Humphreys
Ernie Waterworth, McCartanTurkington Breen
Counsel and Solicitors representing police officers and former police officers
Gary Potter
Dorcas Crawford, Edwards & Co
Counsel and Solicitors representing the Security Service (MI5)
Sir Geoffrey Nice QC
Internal Security Service Legal Advisers
Counsel and Solicitors representing Duncan McLaughlan, Kenneth McCamley, A
208
Until April 2007 Paul Maguire represented the NIPS, instructed by Ken Boyd of the Crown
Solicitor’s Office.
209
Until June 2007 David Mercier, Chief Legal Adviser to the PSNI, represented the PSNI.
94
James Murphy, George Patient and Ralph Phillips
Dr Tony McGleenan
Steven McQuitty
Tony Campbell, Campbell &Caher
Counsel and Solicitors representing Robin King
Patrick Taggart
Ciarán Shiels, Madden & Finucane
Counsel and Solicitors representing Markus Lewis, James Duffy, and Prison Officer
8
Michale Potter
Brian McKee
Nigel Barr, Ferguson & Co
Counsel and Solicitors representing Malcolm Edgar
Kieran Connolly, S C Connolly & Co
Counsel and Solicitors representing Raymond Hill, Brian Thompson and Ivan Blair
John Hunter
Liam McKendry, O’Rorke, McDonald & Tweed
Counsel and Solicitors representing Mary Gilpin, Nigel Joplin, William McCrum,
John Ramsden, and Raymond Urwin
Joseph McEvoy
Dr David Sharpe
Peter Coll
Ian Wimpress, Crown Solicitors Office
Counsel and Solicitors representing the Rt Hon Sir John Wheeler, the Rt Hon Adam
Ingram MP, Steven McCourt, Witness AA, Witness AD, and Paul Wilkinson
James Maxwell-Scott
Nicholas Moss
Jeremy Johnson
Beatrice Collier
Roland Phillips, Treasury Solicitors
Counsel and Solicitors representing Sir Hugh Annesley
Fiona Barton
Peter Jacobsen, Bircham Dyson Bell
Counsel and Solicitors representing Vince McFadden, Lord Stevens and Graham
Taylor
Conor Campbell
David Craig, Johnsons
Counsel and Solicitors representing the Rt Hon Peter Robinson MP MLA and
William McCrea
John McBurney, McBurney & Co
Counsel and Solicitors representing William McKee
David Dunlop
John O’Connor
David French, Lloyd McKeag, Peter Lynch, Reid
Black & Co
Counsel and Solicitors representing Witness EA
Jean Paul Waite
Giles Seal
Stephen Cave, Ministry of Defence
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Appendix 8: Rosemary Nelson Inquiry Legal Teams and Counsel
Counsel to the Inquiry
Rory Phillips QC
Mark Savill
Peter Skelton
Clare Brown
Stephen Myers
Counsel and Solicitors representing Mr Paul Nelson and children
Arthur Harvey QC
Ciaran Harvey
P J McGrory & Co
Counsel and Solicitors representing Mrs Sheila Magee and family
Brian Fee QC
John O’Hare
J G O’Hare & Co
Counsel and Solicitors representing the PSNI
Andrew Donaldson QC
Sean Doran
Mark Conlon
Ms Marianne Campbell, PSNI Legal Adviser
Counsel and Solicitors representing Colin Port and certain members of the
Rosemary Nelson Murder Investigation Team
Michael Egan QC
Nicholas Griffin
Payne Hicks Beach
Counsel and Solicitors representing the Northern Ireland Office
Jason Beer
Paul Lewis
The Crown Solicitor
Counsel and Solicitors representing the Ministry of Defence
James Maxwell-Scott
The MOD Tribunals and Inquiries Unit
Counsel and Solicitors representing the Security Service
Tim Eicke
The Secretary of State
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Appendix 9: Robert Hamill Inquiry Legal Teams and Counsel
Counsel and Solicitor to the Inquiry
Ashley Underwood QC
Judi Kemish
Counsel and Solicitors representing the Hamill Family
Barra McGrory QC
Eugene McKenna
Doris Sherlock, P J McGrory & Co
Counsel and Solicitors representing the PSNI
Richard Ferguson QC
Martin J Wolfe
Counsel and Solicitors representing a number of individual police officers
Charles Adair QC
Kevin O’Hare
Richard Murphy, Edwards & Co
Counsel and Solicitors representing Michael Irwin
Hugh O’Connor
James Carlton, Russell Jones & Walker
Counsel and Solicitors representing the Public Prosecution Service
Ben Emmerson QC
Counsel and Solicitors representing Andrea McKee
Greg Berry QC
Ronan Daly
Paul Downey, Arthur Downey & Co
Counsel and Solicitors representing Robert and Eleanor Atkinson
Margaret Ann Dinsmore QC
Jim Mallon
Brendan Hagan, John P Hagan & Co
Counsel and Solicitors representing various civilians
Wayne Atchison
Michael McComb
Richard Monteith, Richard Monteith & Co
Counsel and Solicitors representing Marc Hobson
Richard Green
Conor Gillespie
John McAtamney, Gus Campbell & Co
Counsel and Solicitors representing Jonathan Wright
Joel Lindsay
John McAtamney, Gus Campbell & Co
Counsel and Solicitors representing Lisa Hobson and Andrew Hill
Aaronn Thompson
Philip Reid, Gerard Maguire Solicitors
Counsel and Solicitors representing D, E and F
Thomas McKillop
Paddy Moriarty, O’Connor & Moriarty
Counsel and Solicitors representing G
Anthony Lunny
Emmet Kelly, Emmett J Kelly & Co
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Appendix 10: NGO Engagement with the Inquiries
Billy Wright Inquiry
In May 2005 BIRW made submissions to the Billy Wright Inquiry concerning the list
of issues to be considered by the Inquiry. Many of BIRW’s suggestions were taken
on board. The NGO was somewhat surprised, therefore, when in September 2009
the Inquiry declined to entertain submissions from them concerning the issue of
anonymity, especially as the Robert Hamill and Rosemary Nelson Inquiries were
happy to entertain similar submissions.
In July 2005, CAJ and BIRW made separate submissions to the Billy Wright Inquiry
regarding conversion to the Inquiries Act. These submissions fell on deaf ears and
representations were then made to the Secretary of State for Northern Ireland.
When the Secretary of State agreed the conversion, the two NGOs joined with
Amnesty International in making a third party intervention in David Wright’s judicial
review of the decision.
In August 2005, BIRW made representations to the Billy Wright Inquiry about public
interest immunity. Although not rejected as such, it did not appear that the Inquiry
took these representations into account.
In October 2007 CAJ and BIRW sent the Billy Wright Inquiry a joint letter of concern
regarding disclosure; appointment of Core Participants; choice of expert witnesses;
lack of evidential material on the website; and the status of witness statements.
When they eventually received a reply it was clear that the Inquiry was unwilling to
engage with NGOs on these procedural matters.
To sum up, the Billy Wright Inquiry was accommodating to the extent that they
listened to our requests and often provided a response. For example, they
provided addresses of the legal representatives of Core Participants to enable direct
correspondence with them, and a summary of closed sessions which was circulated
to legal representatives. However, there were instances when verbal requests were
not met, for instance initial requests to view transcripts for 5 th and 6th February
2009, and requests for lists of Counsel attending the Inquiry in 2009. The Inquiry
tended to insist on requests being made in writing, however small the request. In
addition, the tone of their correspondence was markedly different from that of the
other Inquiries and at times seemed to suggest that we did not fully understand the
processes used by the Inquiry, which contrasted with the more helpful and
considered responses by the Nelson and Hamill Inquiries. Overall, the Billy Wright
Inquiry was the least transparent of the three, and was completely lacking of any
appreciation of the role played by the NGOs in helping to bring about all three
Inquiries or of our capacity to be a resource to them.
Rosemary Nelson Inquiry
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In relation to the Rosemary Nelson Inquiry, in April 2005 CAJ and BIRW both made
separate submissions concerning immunity from prosecution and the list of issues
to be considered by the Inquiry. The final list of issues reflected many of the NGOs’
concerns.
In September 2006 BIRW wrote to the Inquiry asking why MI5 had been granted
Core Participant status. No satisfactory reply was ever received to this question.
In June 2007 Jane Winter appeared as a witness before the Inquiry. Her request for
legal representation was granted in relation to her making a witness statement, but
not in relation to attendance at the hearing itself.
In August 2007 BIRW applied for Core Participant status at the Inquiry, because of
concerns that the PSNI, the Ministry of Defence and MI5 were all represented and
their interests were arrayed against the family representatives, who were not as
well-placed as BIRW to put Rosemary Nelson’s murder in its full context. The
application was refused.
In June 2008 CAJ and BIRW made joint representations about a number of
concerns: failure to obtain witness statements; ambushing of witnesses; Counsel to
the Inquiry being used as a conduit for all questions; and our perceived failure to
connect the threats and abuse suffered by Rosemary Nelson before her death,
intelligence reports, and the police investigation. A further joint letter was sent in
February 2009 concerning the failure to place a transcript of the evidence of an
anonymous witness on the website and the removal of other transcripts from the
website. In July 2009 joint representations were made about closed sessions.
Although the Inquiry always replied courteously and at some length to these letters,
it was difficult to gauge how substantively responsive the Inquiry was to the points
we made.
The Rosemary Nelson Inquiry co-operated with and facilitated NGOs in terms of
good communication and providing answers to queries but was less forthcoming
with requests for information or documents. For example, in 2009 there was a
judicial review application launched by the PSNI regarding an apparent change in
approach by the Inquiry to the areas it would be making finding of facts on; in
particular, a move away from making a finding of fact in relation to complaints
Rosemary Nelson made against a number of police officers before her death and
whether or not they were true and substantiated. The Inquiry submitted an
affidavit explaining why they could not make such findings. For example, they cited
the passage of time and explained that the list of key issues for the Inquiry was not
a definitive document and subject to changes. The application for judicial review
was withdrawn by the PSNI. Unfortunately, we were unable to obtain a copy of this
document from the Inquiry but they were helpful in that they explained the issues.
Similarly, we have been unable to obtain figures relating to the anonymity
applications considered by the Inquiry as they prefer not to release this detail.
Robert Hamill Inquiry
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In respect of the Robert Hamill Inquiry BIRW made submissions in May 2005
concerning immunity from prosecution and the list of issues for consideration.
Again, many of their concerns were reflected in the final list of issues.
In June 2006 BIRW and CAJ made joint representations to the Inquiry about
anonymity and in 2007 and 2008 they made joint submissions to the Secretary of
State for Northern Ireland about the extension of the Inquiry’s terms of reference
to include acts of the Director of Public Prosecutions.
In late 2009 CAJ and BIRW made joint written and oral submissions to the Inquiry,
at the invitation of the Inquiry itself. Notwithstanding these interventions, the
NGOs did not have access to all the written evidence submitted to the Inquiry, they
were forced to make many demands on Inquiry staff for copies of documents, all of
which were met promptly and helpfully. The Inquiry also made a small budget
available to facilitate this process, in recognition of the fact that the NGOs could not
match the resources of the legal teams employed by the Core Participants.
We received fuller co-operation from the Robert Hamill Inquiry, which invited
submissions from the NGOs and provided copies of the submissions of other
participants and Inquiry Counsel. They also arranged meetings with Inquiry Counsel
to update NGOs on developments and allowed observers access to the media suite
to listen to audio of proceedings when the public gallery was closed. Generally
speaking, we found the Robert Hamill Inquiry to be the most transparent of the
three and to have a better understanding of the role of NGOs and of the fact that
NGOs can act as a valuable resource to Inquiries.
General Comparisons
Also of note regarding our experience and that of the NGOs is that each Inquiry
treated observers differently in terms of where they could sit and observe the
Inquiry. In the Billy Wright Inquiry observers had no allocated seats and had to sit in
chairs within the public gallery. The small gallery on the ground floor at the back of
the chamber often had seats reserved for media or legal representatives assisting
Counsel who sat in the main body of the chamber. More often than not, many of
these seats were not used but were not made available to the NGOs or public. The
Rosemary Nelson Inquiry allocated a specific desk at the front of the public gallery
(behind where legal representatives sat) which was clearly labelled to show that it
was designated seating for the NGOs. At the Robert Hamill Inquiry, the NGOs were
allocated a seat and table space within the main body of the chamber alongside
where legal representatives sat, which was clearly indicated to all by the seating
chart provided. 210 The advantage of being seated within the main body of
representatives is that each desk had a screen on which evidence was displayed
when it was referred to during hearings. For observers seated in the public gallery
210
Despite this, on the majority of occasions legal representatives sitting beside our seat often took
the allocated space and observers were forced to sit in the public gallery. Some observers preferred
to sit in the public gallery because of this situation but others continued to use the allocated seat
when they attended. On one occasion, a legal representative asked an observer to give up the seat
and to sit in the public gallery.
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at the Hamill Inquiry or indeed at the Wright Inquiry or the allocated seating at the
Nelson Inquiry, observers could view the evidence displayed on large screens which
may not have been as easily viewable if you were not seated close to the screens or
had partial visual impairment. It would have been useful across all three Inquiries if
there had been one large screen in the public gallery that also displayed a running
transcript of the hearing as was provided to legal representatives on their laptops.
It was noticeable that all three Inquiries were for the most part poorly covered by
the media. While this may well have reflected the resource implications of covering
long-running Inquiries, many journalists indicated that being deprived of their
laptops while inside the hearing chamber made it very difficult for them to work
efficiently.
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