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CORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 359-iv
House of COMMONS
MINUTES OF EVIDENCE
TAKEN BEFORE
NORTHERN IRELAND AFFAIRS COmmittee
OMAGH: 10 years on
wednesDAY 8 july 2009
MR JASON McCUE
DAME NUALA O'LOAN,
DBE
Evidence heard in Public Questions 172 - 285
USE OF THE TRANSCRIPT
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1.
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This is a
corrected transcript of evidence taken in public and reported to the House.
The transcript has been placed on the internet on the authority of the
Committee, and copies have been made available by the Vote
Office for the use of Members and others.
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2.
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The transcript
is an approved formal record of these proceedings. It will be printed in due
course
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Oral Evidence
Taken
before the Northern Ireland
Affairs Committee
on Wednesday 8 July 2009
Members present
Sir Patrick Cormack, in the Chair
Christopher Fraser
Mr Stephen Hepburn
Lady Hermon
Kate Hoey
Dr Alasdair McDonnell
Mr Denis Murphy
Mrs Iris Robinson
David Simpson
________________
Witness: Mr Jason McCue, H2O Law, gave
evidence.
Q172 Chairman: Mr McCue, may I welcome you on behalf of the Committee. Thank you very much indeed for coming. We are little constrained on time, partly at
your request, but we are very grateful to you for being here and we are anxious
to hear what you have to say to us. Was
there anything that you wanted to say by way of brief introductory comment
before I begin the questioning?
Mr McCue: No, I do not think. I think it can just come out through
questions and see where we go.
Q173 Chairman:
That
is the model witness, if I may say so.
You have been living with this issue for a very long time and you have
been working with Mr Gallagher and his committee and clearly you have rendered
them a very signal service and we recognise that; it was a landmark judgment
when it was given. Are the families
likely ever to see any of the compensation that they have been awarded as a
result of this landmark judgment?
Mr McCue: The first way of answering
that question is that, when we started off on the case nine years ago, we did
not have people like yourself saying, "You are likely to win, you are likely to
get anywhere", so I preface it by saying that anything is possible if you try
hard enough and have the determination of the families. Will they see compensation? Why not?
There are four defendants, as you know, who have been found liable. Some of them have moved money around over the
period. If Legal Aid chooses to fund the
families to enforce their judgment, I do not see why they will not get a number
of assets. The Judge made a very
interesting comment in his judgment which forms part of it in relation to
finding the Army Council liable between the dates of Omagh. That opens up a spectrum of other potential
people to go after for the damages and some of those, we are told by sources,
have significant funds within the jurisdictions of that island.
Q174 Chairman:
Is
this what you meant when you said that there are lots of possibilities to
consider?
Mr McCue: Yes.
Q175 Chairman:
Would
you like to amplify further on that at this stage?
Mr McCue: I would not go into the
specifics of it; I thought it was going far enough by explaining that the Army
Council is people who are not defendants who are identifiable by sources in
evidence and, if we get the co-operation of the police et cetera, north and
south of the border, I can see the families being able to enforce their
judgment and obtain money far in excess of the damages award which leads to an
interesting question of whether the families choose to appeal on the grounds of
exemplary damages. I do not know if
anyone realised the point in the case, but the Judge could not find for us on
exemplary damages because they do not exist in English law, so we have to
appeal it at the courts. I am rather
hoping again that Legal Aid see the sense in the families being able to push
this as the case for bringing exemplary damages into the UK.
Q176 Chairman:
What
would exemplary damages be likely to amount to?
Mr McCue: Multi-multi-millions.
Q177 Chairman:
You
think - and let me phrase my question very carefully - that the sort of people
who could be implicated as a result of the identification of the Army Council
might well have multi-millions at their disposal in one way or another?
Mr McCue: Yes.
Q178 Chairman:
That
is very interesting. That really answers
my question about what value this action has for the families. You are saying that there is money there and,
given the co-operation of the authorities, there is no reason why you should
not be able to obtain that money.
Mr McCue: I think that we would feel
quite confident.
Q179 Chairman:
Are
you equally confident in the co-operation that you have received and believe
that you are likely to receive from the police north and south of the border?
Mr McCue: I would like to come back to
that question and just finish off the first part, if you do not mind.
Q180 Chairman:
Of
course.
Mr McCue: I will not duck it. What is the value of the case? It is more than finance and it needs to be
said for the record. The point was about
nailing people. It was about a community
being able to point to someone over there and say, "You are liable for that
bomb" because no-one else had enabled the families or the community to be able
to do that. No other system. The criminal system failed for one reason or
another. So, that was very important.
Value? For me, if you saw the families
when they came out on the steps of the court and smiled, that was the first
time I had seen them do that and I would say that that is probably worth more
than a multi-million pound judgment. To
go back to your question and I think that it is a really important one and at
the crux of what I would like to say, this case took eight or nine years and it
should not have done. One of the main
reasons for that was lack of co-operation from the authorities, not just in the
UK, not just in the Republic of Ireland,
but also America, and the UK - I would also split it between Belfast and here in London. I could not tell you how many hundreds of
letters and meetings we had to go to to ask for what legally should have been disclosed
to us. On some of it, there were
arguments, there were grey ideas and I accept that, but on some there were no
grey areas, but we had obstacle after obstacle after obstacle. Nothing was given to us ever and it should
have been. It all came all right on the
night. Once the trial started, the
subpoena process came in and they turned up with the goods. That made the trial very hard for the lawyers
and very difficult for the families.
Under English law, as every one of those legal advisers knew in all of
those organisations, you can have a pre-trial review for subpoenas to be heard,
so this information could have come out years before. We could have had it and formulated a case in
proper time. Instead, we had a very
difficult time trying to digest it all and use it last minute. That is something to do with the hierarchy in
the decisions. I have to say that the
ordinary policemen everywhere - and I mean whether it was the FBI, whether it
was the Garda, whether it was the PSNI or the Metropolitan police officers -
when they came, they were superb and did their duty and many of them commented
personally that they felt that it was part of performing their duty as much as
in a criminal action and they felt as much justified and I think that that is very
important to get out. They did not see
this as a small circus on the side, they felt that it was very important and
something to be developed. That is what
brings me round to a point that I would like to make, if you do not mind, and
it fits in with your question. If you
are looking forward on this and if you judge that there is success, which I
think there is, in this particular case, I think that one of the things that
needs to be looked at is a proper review of this sort of civil action being used
again for future victims. It does not
have to be just of terrorism of course, but let us keep the focus on that for
these purposes. You need to look at not
only financing. The Omagh case had
specific public interest; it was a special order that was brought out. Perhaps we should have something a little bit
more particular for victims of terrorism to whom we owe an extra duty of
care. After all, they are the frontline
troops in terrorism in whatever form.
Also, there needs to be a review of looking at how, legitimately and
properly, the authorities can assist that sort of case, to streamline it, to
save public money in the long run and I think that process really needs to be
done.
Q181 Chairman:
Mr
McCue, the Committee is very, very interested in what you are saying and I
think that we would want to comment on this in our report. Obviously, I cannot speak for the Committee
until we have discussed it, but what I would like to ask you for, if you are
willing to let us have this, would be a short paper on these points which we
can publish with our report as an appendix and upon which we could draw when we
are formulating our own report and proposals.
Would you be able to do that for us?
Mr McCue: I would be grateful for the
opportunity. It is a question of timing.
Q182 Chairman:
Of
course. That need not be a worry. Our Clerk will discuss that with you. This report from the Committee will not come
out until the autumn; in other words after we come back from the summer recess
in October. We are hoping to publish
this report between October and Christmas, I hope nearer October than
Christmas, but if you would bear that in mind, that would be extremely kind and
very, very helpful. Before I move on,
you have used the word "we" once or twice.
How many of you were working together on this and how much of you time
did it take over this ten-year period?
Mr McCue: Two of my team became
pregnant and then left the firm in the whole time of the case. We always had a team of about three lawyers,
and counsel, one or two or three for the trial.
So, relatively small but it did change.
Myself and Dan Brennan and David Greenhalgh were the only consistent
members throughout the whole case.
Q183 Mrs
Robinson: I would like to ask two very straightforward
questions. Are there dangers in
establishing the principle that perpetrators of an essentially criminal action
can be named in a civil case when those so accused have not been prosecuted or
convicted of any offence?
Mr McCue: Certainly not in the context
of the UK and Ireland for the sole reason of a Diplock Court, if I may call it
that, where we do not have a jury for the criminal trial and likewise, for
these actions, it is judge alone. The
case law throughout the world is that a judge cannot be prejudiced because of
outside matters, if you like. So, the
answer to that, quite simply, is, "No, I do no think there is any prejudice
whatsoever". If you were looking at it
more generally, you would say that there is a big difference between a criminal
and a civil action. One is taking away
your life, if you like, and being put behind bars whereas the other one is a
financial conviction. Hence, there is a
different burden of proof in it. The
great advantage of a civil action, which is also why it is very important and
has a particular quality which I think is more important to the public than a
criminal action, is that you are allowed hearsay evidence. A lot of people say that that is a weaker
form of evidence. It is not. It is a different form of evidence. It is broader. In a civil trial, you paint a mosaic and let
us say that it was of the mother with Christ, you sort of have bits missing,
but you know that is what the picture is.
You get a clear picture. A
criminal trial can never do that, really.
It can only do a skeleton by its very nature. The public need to see and the families and
the victims need to see what has happened, and if they get a picture they can
understand a lot more and I think that that is very valuable and is indeed one
reason why, if I am permitted in the written paper, I think that the review
should also consider where civil actions could be used instead of very
expensive public inquiries because, in some cases, they could be more powerful
and more useful.
Q184 Mrs
Robinson: That would be very, very helpful indeed. May I move on to ask what safeguard is there
for the wrongful identification of individuals in such cases?
Mr McCue: It is the same safeguards
that would be in a criminal case that failed.
As at an early stage you have, if you like, the prosecution service
which decides whether there is a legitimate burden to get over to initiate the
proceedings, in a civil case, you have to have lead counsel to make that
decision to the court and the professionalism is the same, whether you can make
that burden. So, you do have a check
there from doing a wanton case. You
could not just throw it out just to clog up the system and to make an
accusation which had no substance. You
have to have the basis of a case to be tried in court. So, there is a safeguard initially and, once
the case is in progress, likewise it is the same as a criminal case. There are ways that the court deals with
protecting an individual who is not found liable, as in our case.
Q185 Mrs
Robinson: Do you see victims or families of victims
going down this road of using this civil action as opposed to the other court
systems?
Mr McCue: In the time that I have been
doing the Omagh case, I have been approached by other victims for instance of
Semtex supplied by Gaddafi to the Provisional IRA and indeed that case is
ongoing in America. I am acting for 6,000 victims of the Second
Intifada in New York
State suing Hamas and the
banks that financed it, Arab Bank PLC.
In more recent times, we have been approached by the 7/7 victims and
also the Mumbai victims and we are looking at putting cases together. Again, the difficulty is, if it were only so
simple as a client coming to me and saying, "Can we bring a case?" The answer is, "Yes, we can work it out, we
can gather it", but you have to find the financing, you have to work out where
you can get the evidence and whether the State will co-operate and that is
where the difficulty is.
Q186 Lady
Hermon: I am delighted to see you here and thank you
so much for all your help and encouragement to the families down through the
years. I would like to ask about two
particular issues. Picking up on the
evidence that you have already given in response to questions from the
Chairman, you mentioned twice - and I am sure you did notice - that the
authorities - and then you differentiated ordinary policemen who were very
co-operative - dragged their heels.
Could you identify internationally and locally which authorities in
particular stymied the investigation.
Mr McCue: PSNI, the FBI, the Treasury
Solicitor in London
and I am not sure of the exact office in the Republic because it became very
confused for us. We were dealing with
the Ministry of Justice, then we were dealing with the Garda and they kept pushing
it back and to and then nothing got done, so I considered it evasive.
Q187 Lady
Hermon: Did you find the British Government helpful in
your enquiries down through the years?
Mr McCue: No, not at all.
Q188 Lady
Hermon: Either the Blair Government or the Brown
Government?
Mr McCue: No. To put it into context - and I am not picking
on the present Chief Constable of the PSNI - I think that we wrote a number of
letters to him personally and never received an answer. I never received an answer to any letter from
him personally.
Q189 Christopher
Fraser: No acknowledgement?
Mr McCue: From him personally, I would
like to say "no" because I feel confident in my response but maybe I could
check that because it is for the record.
Q190 Chairman:
This
is very important. If you did not get
acknowledgements to your letters - and we cannot always expect the answer we
wish to receive - the Committee would like to know.
Mr McCue: On a number of occasions, I
am quite confident, taking away the specific, to say that, on a general point,
quite a number of letters were never answered and some letters were answered
over a year later. One of the things
that kept happening was that we would write a letter to somebody we were told
to liaise with and then we would get a letter back from someone else. It was all games. Lawyers are used to this sort of thing and we
know what is going on without being able to explain it in detail, but I am very
confident in saying that games were played with us by the hierarchy for sure.
Q191 Chairman:
Would
you be in a position to let us see some of the letters that were not answered?
Mr McCue: If my clients give me
permission to show you. I do not think
that we are facing maybe an appeal process but I am not sure. If there is no legal impediment to it and my
clients are willing, of course.
Q192 Christopher
Fraser: Just on that point about the letters because I
think that it is quite important if we are going to be able to see them, the
nature of the letter will depend upon the response one gets because, as Members
of Parliament, we get all sorts of letters coming to us. Are you suggesting that the letters you have
written were gentle and enquiring or were they the type of letters where
someone would simply say "We can't touch that with a bargepole"?
Mr McCue: No. We are lawyers, we are not people writing in
on a campaign issue or trying to raise a question outside the families, "Oh,
let's have an inquiry". These were legal
questions to do with the case which myself and several QCs thought about
carefully. I will give you one example
which I remember, if I can just recall the sequence of it. We had a meeting with the PSNI and myself and
Lord Brennan and one member of the families were at it. At that meeting, it was agreed that anything
which could possibly prejudice any investigation or ongoing prosecution we
could not have, which we totally understood.
We did say that there was a grey area in that legally and actually
legally we thought that we could challenge that and win it, but a lot of
material that we wanted was not in that category. It might have been things like, let us take a
radio mast for a mobile phone, "Could you give us a map with those on it?"
Q193 Christopher
Fraser: Simple stuff.
Mr McCue: Which we could have gone
round and got, there was no problem with that.
It was agreed in that meeting that we could have that non-problem
material. When we then wrote back to
those individuals and the Chief Constable on it, a letter would come back
saying, "You can't possibly have any of that".
We had wasted quite a lot of time.
That went on and, if you saw the correspondence, one of my
characteristics is that I get fairly angry in letters, so do not be surprised
to see a tone in there that does start appearing.
Q194 Chairman:
Let
me ask you a very, very important simple question. Did you get the impression throughout the
time that you were working on this case that the various authorities were
deeply embarrassed that you were doing it and wished you were not?
Mr McCue: I obviously do not know their
reasoning and can only speculate. I
think that there was a mixture of maybe we were seen as trying to compete and
create an embarrassment and that was true in part. Part of the reason for the civil action was
to try to keep the authorities on their toes, so they realised that they needed
to keep trying for the families and I am not embarrassed about that, but I
think that there may have been an element as well, in fairness to them, where
it was a new process and they were not quite sure whether it would work or whether
it would be a waste of time maybe. I
just do not know. It is hard to
say. There was a universal reluctance.
Q195 Lady
Hermon: May I just clarify that and then move on to my
second point. When you referred to the
Chief Constable for the PSNI, are we referring just to Sir Hugh Orde or are we
also referring to Sir Ronnie Flanagan, his predecessor, or to both of them?
Mr McCue: Again, it has gone on for
nine years. I seem to remember that when
we wrote to the Chief Constable when it was Ronnie Flanagan, it did get
answered in the early days.
Q196 Lady
Hermon: You can always pick up those details when you
write to us.
Mr McCue: I can check that because I
may be wrong. That detail at the time I am
not sure.
Q197 Chairman:
We
will obviously need to pick up on your evidence and our Clerk will be in touch
with you about that.
Mr McCue: That is fine.
Q198 Chairman:
We
are not at all critical about the fact that you memory is not absolute on
everything.
Mr McCue: There were so many different
things going on.
Q199 Lady
Hermon: Moving on to my second point - and again this
is picking up on something very interesting that you were sort of hinting at in
your earlier evidence - the funding. The
Omagh families had an exceptional case and they had funding for that. How would other families find such
funding? Should the Government find such
fundings for exceptional cases, just for terrorist cases or for other cases
where you take a civil action?
Mr McCue: I honestly do not think that
they would be able to do it. I think
that it was one bit of good luck after another and the fact that we were so
persistent that we managed to get that exceptional legal aid. I cannot imagine if I went with another
bombing case whether that would happen again.
That it happened was partly down to Peter Mandelson. Peter Mandelson personally took it to the
Prime Minister.
Q200 Lady
Hermon: You will need to elaborate a little bit. This is an exceptional case made by the then
Secretary of State.
Mr McCue: He was not the Secretary of
State at that time. I went to speak to
him with the families and a number of other people who were in our wider team
and just said that we have to fight on.
Q201 Chairman:
Was
this before or after he was Secretary of State?
Mr McCue: I am pretty sure that it was
after; I am absolutely sure that it was after.
Q202 Lady
Hermon: Why in particular would Peter Mandelson have
been identified as a listening ear in this particular case?
Mr McCue: I knew him to speak to and I
thought he was somebody who we knew was sympathetic to the Omagh families. When we had an appeal to try and raise money
at the beginning, he donated a very generous sum from newspaper articles he had
written because he felt for the situation of the families, which I think was to
his credit. So, he was a natural person
to go to and we said, "This is in the public interest. What can we do?" and he went off and he came
back and I understood that he went to the Prime Minister, which was Blair at
the time.
Q203 Lady
Hermon: So, this was an exceptional case and may I
just ask a supplementary: should the Government in future cases find the
funding for example for the 7/7 bombing here in London?
Mr McCue: Absolutely and I think that
it should come out of this review process which I would like to see done in
order that better brains than my own can think about it and the procedures.
Q204 Mr
Murphy: You mentioned earlier that one of your
requests was as to the location of mobile phone masts. It is fairly obvious that the use of mobile
phones and one phone box played a crucial part in identifying the
suspects. How and when did you first
receive that information?
Mr McCue: The second or third day in
court. When did I know about it? Within a few weeks of starting my
investigations.
Q205 Mr
Murphy: So, there was no information voluntarily given
to you? It had to be subpoenaed as part
of the court process?
Mr McCue: Yes and, as I explained, the
court process could have allowed us to put a subpoena years earlier but there
was just no will for it.
Q206 Mr
Murphy: What form did that evidence take? Was it simply the location of masts or was
there any other evidence?
Mr McCue: It got quite tricky because,
if you delve into that evidence, some of the material is in the Republic and
some is in the north by the very fact that you are following the bomb
route. So, you have not only two
jurisdictions, which was an issue, but you have different phone companies. We had issues in pulling all that material
together. At the end of the day, what we
relied on most of all was the work, which was brilliant work, that a number of
PSNI officers had done on going through millions and millions of phone
calls. It was funny because, when we
went through the process of following how they had collated this, you realised
something very clearly, which is probably relevant to your general inquiry,
which is that they had no steers. They
were having to go every way. It must
have taken years to analyse and to get this and they had no idea. When you went through the raw material, it
was quite clear that there was no, "Have a look at this person". To me, it was shocking that there was not an
intelligence steer on that because it is very clear when you analyse it that
there must have been intelligence knowledge in relation to some of the specific
phone information.
Q207 Mr
Murphy: Did you receive any information or evidence
that GCHQ would have had that sort of information?
Mr McCue: I received none
whatsoever. I mean none.
Q208 Chairman:
But
you are saying that the PSNI was meticulous to the nth degree in the way they
went through this.
Mr McCue: Yes. It was a remarkable piece of work. It was very impressive. What I am equally saying is that when you
analyse it, you realise that there was a pattern between Lisburn, Banbridge
going on to Omagh. When you see that
pattern ---
Q209 Lady
Hermon: A pattern in relation to ---?
Mr McCue: The same phones being used
and used in the same way. It would take
so long to really explain that in any detail, but there was a pattern and there
was a way that it was used and the same phones being used. Now, bearing in mind the Real IRA when it
appeared and the amount of the resources that the great and good were saying
were being thrown at this - and I do not know whether there were intercepts
which I know is part of this issue, I have no idea - all I would say is that my
question is, it would be criminal if there were not and there was not the
intelligence on it because, when you look at it now - and, okay, it is with
hindsight - if that were my job, I would have been all over them.
Q210 Mr
Murphy: So, there were no transcripts of any
conversations with the exception of the warning? None of the mobile phone transcripts were
available to you?
Mr McCue: No.
Q211 Mr
Murphy: It was purely and simply the location in
relation to the masts?
Mr McCue: That is right and then
obviously the warning calls. As you
rightly say, that was the only transcript.
That was part of the difficulty.
If we had had the conversation, the trial would have been two or three
months instead of a year for sure - that is if it had happened, I do not know -
and perhaps on one crucial piece of evidence against one defendant, there was a
phone call from what we proved to be the bomb car to a home address at which
was the wife of the man whom we accused who was found not liable. We could prove that that phone call was made
but not by whom. That conversation went
on for quite a period. If we had had that
---
Q212 David
Simpson: In your opinion, could a case have been
mounted against Colm Murphy and Liam Campbell without telephone evidence?
Mr McCue: Liam Campbell possibly
because we managed to get hold of an MI6 sting operation for buying weapons
from the Iraqis who were actually MI6 or MI5 officers or whatever and perhaps
that may have nailed Liam Campbell on its own.
Only the Judge could tell you that.
We did manage to put Liam Campbell in the telephone matrix and maybe
that helped the Judge. I cannot remember
the exact wording of the judgment, but I think that the Judge found "almost
overwhelming evidence" against him, so perhaps you could make that assumption
in his case. In relation to Colm Murphy,
it was not so much Colm Murphy being in the telephone matrix as he had those
phones on certain days and passed them on and they were used. So, yes, I do not think that we could have
found against him without it. I think
that is fair to say. One of the bizarre
things in the civil case, which is one of the points which should have been
appealed but I doubt we will be given legal aid to do it, is that we were not
allowed to rely on a conviction in the south for a serious terrorist offence
very close to the period of the bombing or subsequent and I found that bizarre
if you look in other jurisdictions and I think that is something that should be
challenged.
Q213 David
Simpson: In your opinion again, could the telephone
evidence have led to earlier identification of suspects and arrests if the
officers investigating had had access to it?
Mr McCue: Without doubt. You come back to an intelligence point. Let us answer the question if it is the raw
data of a phone going to the mass, not the content. Looking at how they went about it, they must
have been spending months and months over here when they needed to be over there. So, with this intelligence steer, much
quicker, without a shadow of doubt. It
sort of becomes apparent when you are looking at the material that there were
patterns which intelligence or Special Branch must have been on. If you work in this area, it would be
negligent if you were not and I think that that is a fair word to choose. That means to me that they probably were, but
I do not know.
Q214 Chairman:
This
is very interesting and fascinating evidence.
As you will know, we have seen John Ware who produced the Panorama
film and this really sparked off our particular inquiry because of the comments
on it by the victims' families and so on and we have seen them on a couple of
occasions both formally and informally.
What is your opinion of the Panorama film?
Mr McCue: It is the sort of film that
you do not necessarily want mid-trial if you are a lawyer because obviously it
means that you have to take heed of a programme like that put out by someone
like John Ware and the BBC. I know from
being a lawyer to TV stations before that there is a certain burden before they
will broadcast, so I had that very much in my personal mind when I watched
it. Hence, I made affidavits at court
based on it, which I felt I was able to make to the court, which, when we
applied to GCHQ and to Special Branch et cetera, et cetera, they told us, "No,
we can't play" and that got nowhere.
What did I think of it? I simply
do not know because nobody who would have been in a position to have that
material or who saw that material has spoken to me directly. Certainly, I have spoken to a lot of people
over all these years and I had certainly heard whispers from individuals and it
was common parlance that there were recordings.
I had heard this well before John Ware and so had other people if I had
heard about it. That is what I found very
strange about this because, if it took the BBC, in the middle of our court
action, to get the Gibson Inquiry underway, why was this not done earlier
because those rumours went way back and it seemed to me that, if there was a
serious issue internally, if I was internally, I would have wanted to address
that at a very early stage particularly when the Real IRA was very active. I find that peculiar, for all it is worth.
Q215 Lady
Hermon: Do you mean, just to be precise here,
recordings of the conversations between the callers of the identified mobile
telephone numbers?
Mr McCue: Yes, I do.
Q216 Lady
Hermon: And you had heard rumours or speculation that
there were recordings kept by whom, may I ask?
Mr McCue: I think that it was GCHQ,
from memory. In this case, I have sat
down with sources and had conversations with people, so many that I cannot even
remember them all, but one of the things that came up - and some of these
sources would have been from a variety of areas ---
Q217 Lady
Hermon: Such as?
Mr McCue: From journalists to people on
the outskirts of organisations to people in authorities.
Q218 Lady
Hermon: Would you regard them as reliable
sources? I think that is the point.
Mr McCue: I am struggling to think of
---
Q219 Lady
Hermon: A word?
Mr McCue: No, specific people and
conversations. The way I came about this
is that this was a common point that was raised and it must have been from
around 2002, as early as that, that I heard this. It was not that new when I heard John Ware
said that he was doing a programme on this.
Q220 Chairman:
Mr
Ware was at great pains to say to us that he at no stage wished people to infer
from his programme that the bombings could have been prevented and, when
Sir Peter produced his report, the sanitised version of which you have
doubtless read ---
Mr McCue: No.
Q221 Chairman:
What?
Mr McCue: No, I did not.
Q222 Chairman:
You
did not?
Mr McCue: I made a point of not reading
it.
Q223 Chairman:
I
thought you might have read it before you came before us. Anyhow, he said that he was quite confident that
nothing could have prevented the bombings.
Do you have any feeling that that is wrong?
Mr McCue: Let me preface it again by
saying, "I do not know". Let us say if
they were intercepted - and, if I were a betting man, that is where I would put
my money but I just do not know - I think I would like to scrutinise that a
little bit more because I find that hard to believe with the pattern. There is a pattern going back to the Lisburn
and the Banbridge bombings.
Q224 Dr
McDonnell: I am fascinated; thank you for your
evidence. Where do you think that the
information flow broke down? It is very
clear to us that GCHQ was mounting a degree of surveillance but they were doing
it in a technical way rather than deploying or implementing intelligence to
that. Where do you feel that that
information got stalled, stuck or lost or have you any evidence to that extent?
Mr McCue: May I work on the premise
that you put forward because I go along with that? If you are working with intelligence, there
is usually somebody who has asked you for it.
You do not just create or ---
Q225 Dr
McDonnell: You do not do it for fun.
Mr McCue: Exactly. So, the first question is, who asked for
it? I presume, in this context, it would
be Special Branch and indeed I know Special Branch procedure because I have
been dealing with cases there long enough to know and their procedure would be
to make a request and their request is fulfilled and sometimes they get a
sanitised version, sometimes they get a full version and sometimes they sanitise
it. That is what I understand to be the
process. It seems to me that if GCHQ
were doing some business on these mobiles, which I just find so hard not to
believe they did not do, as I started off, so that is helpful for me, then why
would they not pass it to Special Branch - it would be quite remarkable if they
did not - and, if they did pass it to Special Branch - and again I do not know
any of this - and if Special Branch had passed it to the Omagh Investigation
Team, they would not have done all this work.
First of all, why would they need to cover it up and make it look like
they did not have it because they are allowed to have in that process? They would not have had to do that, so they
could not have had it. Why could they
not have had it because, if they had got that, it seems to me that their site
analysis could have taken maybe days or a week or weeks, really short. The real work was finding them, then, once
you got it, it took time to put it together.
In which case, surely in that period of frenzy after a bombing where
nerves are up, being able to interview people in those circumstances, you are
going to get a lot of information. That
would be the usual course. So, the
breakdown, to answer the question, logically I would have thought, is in two
areas: either between GCHQ and Special Branch or Special Branch and the
Investigation Team. I do not see any
reason why either of them should not have done it but, if GCHQ was doing it,
presumably it would have passed it down.
It is not logical that it did not pass the material to who had asked for
it. Special Branch are dealing with
other issues, if you like. They have
then a whole degree of other reasons. I
just do not know but logic dictates somewhat that it is ---
Q226 Dr
McDonnell: I would like to take this a little
further. You see, there is speculation
out there - and I think you and I have speculated a bit further here - that
Special Branch is not an amorphous mass, it is made up of people and there may
be some subdivision within that that had a plan to operate a sting and were in
effect luring these guys into a trap and therefore were keeping the
information. Does that sound sensible?
Mr McCue: Well, yes and no. It would be an explanation as to why they
would not pass it to the Investigation Team, which in my view clearly did not
happen. The problem with that is that it
is "proud man, dressed in brief authority" being quite ignorant of their power,
presuming they know better. That does
happen and it is a possibility, but you are dealing with potential intelligence
on a bomb which was going to be a big bomb and you have to put this into the
context of all the other warnings that were out there, whether it was from
David Rupert, which I have seen, of the size of vehicle and bombing within weeks
and other warnings, some of which I think were hopeless and silly, some of
which maybe had some credence, I do not know.
In that context, you could have expected a big target not necessarily in
Omagh but somewhere at that point. So,
to play a trick if you were not really 110% in control would have been quite
reckless, in my view. The answer is that
I obviously do not know the answer to your specific question, but I would like
to think that they would not have done that.
Q227 Dr
McDonnell: Did you get any impression that there were
cross-border surveillance issues at stake?
Part of the reason for some of the hesitancy and the less than free flow
of information was that there were maybe covert operations south of the border,
British operations south of the border or vice versa?
Mr McCue: To answer that in part, there
were rumours abound of there being a source and sometimes sources, those are
two stages I have heard rumours of. One
at the early stage of the car theft, which would have implied that the authorities
north or south would have known the identity of the bomb car early on from its
theft, and then there were rumours of even someone in the bomb cars being a
source. These were abound and certainly
again some of the times we just could not get material. So, you hear these rumours and your mind
starts wondering but, do I have any evidence?
No. I am only able to say what
was being said and certainly - and this
in part answers your question but in part it does not - we moved the court down
south and we had it in Dublin and we had it in Belfast and it was clear at
times that some material had not gone across to the other side and vice versa
and you wondered why that had not happened or why it had happened and it seemed
to be that there was at one point a process where individual officers were
working very closely with their counterparts in either the north or south and
that created a better flow than through official channels. I got that impression.
Q228 Mr
Hepburn: Peter Gibson issued a report and the sanitised
version has been passed around and we are trying to get a look at the full
report. In the report that we have seen,
Sir Peter says that the intelligence to which the Chairman has alluded was
shared with the RUC fully and promptly and the intelligence derived from
interception could not have prevented the bombing. In light of the comments which you have made
today and obviously you are using a logical mind as a solicitor, if you were a
member of this Committee, would you suggest that there is still an issue about
looking at that report in more depth?
Mr McCue: I think if I were a member of
this Committee I would insist on it and I would like to go a little further
because it strikes me that Gibson first of all is not a policeman, so how he
can derive what would have been of use to the investigators is beyond me in the
first place. Secondly, I picked up on
the point from one of the guys I worked with who had read the report that there
was this comment about there being no evidential value that could have been
helpful to the families. Well, it would
have been nice and proper if perhaps he had sat down and asked the lawyers in
the case or the Judge in the court room when we were asking for this material
when his inquiry was on. The Judge
would, I am sure, have found time to sit down with him and make that
decision. I do not see how he was in a
position to decide that on a police point of view and on this legal case. I found that remarkable.
Q229 Chairman:
Thank
you very much, indeed. Your evidence has
been thoroughly valuable for us and extremely interesting. I just want to put a final point to you
because I do not wish to misinterpret anything that you have said nor do I wish
the Committee to build its conclusions on any false premises. It does seem to me that you have been
vindicated by the judgment and yet you are telling this Committee that,
throughout a long and protracted period, you found that many people were
putting obstacles in your way. You have
singled out the now noble lord, Lord Mandelson, as being an exception to that
rule. Is there anyone else that you wish
to exonerate of that general criticism either in the way of previous or present
Secretaries of State or anybody else, or is this a reluctant blanket criticism
of all those in high authority who could have helped you and perhaps did not?
Mr McCue: I would go with that. There were a number of political individuals
who were always very sympathetic and always did the extra thing to help us with
the fundraising. There were lots of people there. As regards the people with whom we were
dealing specifically on the case and getting the evidence, your comment would
be precisely right. I would not
vindicate any of them.
Memorandum submitted by Dame Nuala O'Loan
Examination of Witness
Witness: Dame
Nuala O'Loan, DBE, gave evidence.
Q230 Chairman:
Dame
Nuala, may I welcome you warmly on behalf of the Committee. Most of us of course have met you before when
you were doing the job as Ombudsman and thank you for what you did during that
not always easy period and for establishing the office as one which has met
with a great deal of respect throughout the United Kingdom. We appreciate that. As you know, we are looking into the
circumstances surrounding Omagh, in particular reference to the issues raised
as a result of the Panorama programme.
I think I saw you in the public gallery for the evidence we have just
heard. Did you hear all of that
evidence?
Dame Nuala O'Loan: Practically every word of it.
Q231 Chairman:
Is
there anything that you would like to say by way of opening submission?
Dame Nuala O'Loan: No, thank you.
Q232 Chairman:
May I
begin where we ended in a sense. Has the
Gibson review of intelligence intercepts thrown any new light on the matters
that you investigated as long ago as 2001?
Dame Nuala O'Loan: No, it has not.
Q233 Chairman:
Have
you been privileged to see the Gibson report in its entirety?
Dame Nuala O'Loan: No. I have read the report that has been
published; I have read it several times.
Q234 Chairman:
Did
you ask to see the full report or not?
Dame Nuala O'Loan: No, I did not think that was
appropriate as I no longer hold office.
Q235 Chairman:
That
is fair comment. You do not think that
it added materially?
Dame Nuala O'Loan: It did not add anything. In fact, it confused me.
Q236 Chairman:
Do
you continue to stand by the conclusions of your 2001 report?
Dame Nuala O'Loan: Absolutely. I do not think that those conclusions have
been in any way harmed over the past eight years.
Q237 Lady
Hermon: Dame Nuala, I am delighted to see you here
this afternoon. May I ask why it was
that Sir Peter Gibson's report confused you.
I think that is the word you used a moment ago, "confused". In what regard?
Dame Nuala O'Loan: I could not quite understand
how he reached the conclusions which he reached.
Q238 Lady
Hermon: Why was that?
Dame Nuala O'Loan: Because I started from a
perception that he might have seen material which I had seen - I cannot say
whether or not it is intercept material.
The Security Intelligence Services have a variety of methods for
gathering material and it is therefore appropriate for me to say that I have
seen material from the Service. There
were elements of his conclusions which I found acceptable and other parts of
his conclusions I found odd. I started
then to re-read the report and I re-read it in terms of in what capacity has
Sir Peter written this report? He tells
us at the beginning of the report because he said that the Prime Minister on 17
September invited him as Intelligence Services Commissioner to carry out the
review. So, it was in that role that he
perceived himself as carrying out the review.
Then he describes his terms of reference which were to review
intercepted intelligence material and to see to what extent it was shared, and
he says that he was satisfied that it was shared fully and promptly - and I
think that we will probably talk about that - but he goes on to say at
paragraph 33 that it was not part of the terms of his review that he should
investigate nor has he investigated the reasons why Special Branch itself acted
in the cautious way it did nor had he investigated the soundness of those
reasons, but he says in paragraph 8 that he did investigate to what extent the intercepted
evidence was shared by SB with the police investigating the bombing, but then
he does not go on to state whether or not it was shared and that is why I find
it slightly confusing.
Q239 Chairman:
I
think that we would share your conclusion.
Dame Nuala O'Loan: Thank you for that.
Q240 David
Simpson: Sir Peter notes in his review that Special
Branch briefed CID officers the day after the bombing, I think that the
information was given to him on 20 August.
John Ware has said that his CID sources recall no such briefing on 20
August and that the CID log for the time contained no record of such a
briefing. Is Sir Peter Gibson correct to
say that Special Branch briefed detectives with the names of suspects on 20 August 1998, five days
after the bombing, or did that first briefing happen three weeks later as noted
in your report of 2001?
Dame Nuala O'Loan: My understanding is that
Special Branch briefed the senior investigating officers on two occasions. In the first instance, my understanding is
that there was a briefing on 17 August and, in that briefing, I think that a
number of names were given to the investigating officers. My recollection is
that there was a series of arrests - and I am working from memory and it was a
long time ago - on 20 August or thereabouts and that those individuals were all
released and that subsequently there was another briefing which I think was
either on 8 or 9 September and there was a series of arrests following that and
those arrests seem to have been more serious arrests.
Q241 David
Simpson: So what you are saying is that there was a
briefing on 20 August?
Dame Nuala O'Loan: No, I did not say there was a
briefing on 20 August.
Q242 Chairman:
A
briefing on 17 August.
Dame Nuala O'Loan: I think there was a briefing
within 48 hours and I think the arrests followed the briefing. The question then, of course, would be what
was in the briefing.
Q243 David
Simpson: Lastly, how does your report's detail of the 4
August warning that Omagh was a target and the allegations made by Kevin Fulton
square with Sir Peter Gibson's conclusion that the security forces were not
alerted to any risk against a specific town and that there was "no obvious
reason why Omagh should be attacked"?
Dame Nuala O'Loan: I think that is probably a
question for Sir Peter because you are asking me how did he reach a conclusion,
if I may say so with respect. You can
look at an individual piece of information in isolation or you can gather it
together, and the function of Special Branch is to gather information together
and to be constantly reviewing the picture that is emerging. The information which came in on 4 August
that there would be an attack on police in Omagh on 15 August was information
which was not shared with the senior investigating officer. It was never shared with the sub-divisional
commander of Omagh and my contention in my report was that it should have been
so shared. I say in my report, and I do
not think my view has changed at all, that we will never know whether the bomb
could have been prevented. Having said
that, had the sub-divisional commander been alerted that there might be an
attack on police in Omagh on 15 August there were a number of options available
to him. One of those options would have
been to put checkpoints at all the entry points into the town, which
geographically he could have done. When
we spoke to him he said that he had been very shocked to discover that this
information had been received by the police and he had been unaware of it. He said initially to us that his response
would have been to set up checkpoints, but he subsequently contacted us and
said that was not the case and he would have put as few officers out on the
ground as possible. Chairman, I cannot
really explain why Sir Peter said what he did.
If I may make one other observation, and it is this, and I will put it
early so you do not have to tease it out of me,
I will put it on the record: the material of which I am aware
practically speaking in all probability could not have prevented the Omagh
bomb.
Q244 Lady
Hermon: Dame Nuala, if I can ask you about a couple of
issues. You have confirmed that you were
able to hear the evidence given by our previous witness, Mr Jason McCue. He was asked, and I paraphrase him here,
whether in fact he had heard rumours or speculation or was there any evidence
of an RUC sting operation. Did you, as
Police Ombudsman at that time investigating the RUC and their investigation of
the Omagh bombing, at any time have any information, any hint or any
speculation of a proposed sting operation by the RUC?
Dame Nuala O'Loan: No, Chairman, I did not.
Q245 Lady
Hermon: Not at any stage?
Dame Nuala O'Loan: No.
Q246 Lady
Hermon: Thank you, that confirms what I had thought
all along. Could I now just ask you in
relation to the High Court judgment in the Omagh case, the most recent one,
does that have implications now for your successor as Police Ombudsman? Are there issues arising from that judgment
which would lead to a further investigation by your successor?
Dame Nuala O'Loan: I am sorry, Lady Hermon, I
did read the judgment but I did not read it with that hat on. I do apologise.
Q247 Chairman:
Were
you surprised by the judgment?
Dame Nuala O'Loan: I think I have to qualify
what I say by saying that I have been so busy that I was not able to follow the
case in detail because I have been overseas.
Q248 Lady
Hermon: Out of the country for quite a while, yes.
Dame Nuala O'Loan: Because I had not read all
the evidence, and because I know it is very unwise to try and form a conclusion
about a case where you have not heard the evidence, I had not formulated any opinion but I was interested
to see what would happen. I was
surprised because this is the first time this has happened that we have had
such a judgment. On the other hand, I
thought the judge - now we are getting back into the judgment, which I read -
articulated his reasoning very clearly, so it seemed to me logical that he got
to where he got to.
Q249 Lady
Hermon: Obviously a lot of the judgment depended on
the telephone numbers of the mobiles that had been identified and linked, as Mr
McCue said, and there was a pattern in the use of those particular
telephones. In light of that and in
light of the fact that in your capacity as Police Ombudsman when you carried
out your investigation you did have access or did see the intelligence
information in whatever capacity it was provided to you, can I just ask if you
have evidence why on earth when GCHQ passed the intercept evidence, as we
understand it, to RUC Special Branch South it was not passed to Omagh and RUC
Special Branch North?
Dame Nuala O'Loan: In the first instance, with
respect, Lady Hermon, I cannot confirm the material which I saw came from
GCHQ. It would be a criminal offence for
me to do that.
Q250 Lady
Hermon: I would not want you to do that. That is fine.
Dame Nuala O'Loan: We went across a number of
evidential opportunity lines when we were conducting our investigation and we
went to the Security and Intelligence Services.
This is not the only case on which we went to the Security and
Intelligence Services. When we went to
the Security Services what they said to us was, "We will give you
information. We will let you see what we
have got, but if you want to use that information you have to seek our
permission effectively and you have to let us know". The process would be that we would take
information from them, we would use it and we would go back to them with the
paragraph which we were proposing to use in a public report and agree with them
the content of that paragraph, but it would not in any way compromise anybody's
life or any particular methodology. We
did use the material which I got from the Security and Intelligence Services in
formulating the report which we published, both the detailed report which I
gave to the Secretary of State and the members of the Policing Board and the
Chief Constable, and also the report which I published. If I can refer you perhaps to a couple of my
paragraphs. I did make notes of where I
had this material. Paragraph 6 .19: "All
the intelligence held by the RUC which may have been relevant to the
investigation of the Omagh bomb has not been revealed to the Omagh Bomb
Investigation Team. Evidential
opportunities which the intelligence and findings of the Omagh Bomb Review
Report offered have not been exploited".
I have a couple of other references to that information somewhere else,
which I cannot now find. Can you bear
with a minute, Chairman?
Q251 Chairman:
Of
course.
Dame Nuala O'Loan: It is so long since I have
dealt with this. It is in paragraph
26.10-17 of my big report, which is not a public report unfortunately. I do have references from my other
report. The essence of what I was saying
was repeatedly I said had all the available intelligence been put together
there would have been investigative opportunities and the question must be
asked whether there might have been the possibility of preventing the bomb, and
on each occasion on which I referred to all available intelligence I was
referring to all the material which I had seen, some of which was Special
Branch material and some of which was material received from the Security
Services.
Q252 Chairman:
You
referred just now to your big report which was not published. If it would be convenient for you, perhaps
the Committee could have five minutes with you in private at the end of the
public session.
Dame Nuala O'Loan: Yes certainly, Chairman.
Chairman: Thank you. That would be very helpful.
Q253 Mr
Murphy: When the Secretary of State came in front of
this Committee to give evidence on 1 April we were pressing him on the issue
you have just raised, how quickly Special Branch passed intelligence to the
detectives investigating the Omagh bombing.
The Secretary of State said: "This issue has already had its inquiry;
the Ombudsman did it, the lessons have been learned and it has moved on". That is an exact quotation. Do you agree with the Secretary of State that
your report actually covered all of the issues that were raised with regard to
the evidence that was available at that time?
Dame Nuala O'Loan: The law does not permit
anyone to refer to certain types of evidence, Mr Murphy, so my report covered
it but did not cover it explicitly, if that is of assistance to you.
Q254 Mr
Murphy: Do you think Sir Peter raised more questions
in relation to this "cautious way" in which Special Branch ---
Dame Nuala O'Loan: Special Branch did not
disseminate material which they could have disseminated to the CID officers
investigating.
Q255 Chairman:
Do
you know why?
Dame Nuala O'Loan: No.
Q256 Chairman:
Did
you ask them?
Dame Nuala O'Loan: If I can explain to you,
Chairman. At the time that Special
Branch was operating they had very unusual ways of managing information. There were no criteria, no guidelines, no
force orders on which to benchmark the relevance of any information which they
would get or what they should do with it.
If you take even the Force Manual, which is their standard operating
procedures sort of thing, there is no entry under the word "intelligence".
Q257 Chairman:
Really!
Dame Nuala O'Loan: There was not. You will find an entry under the words "Drugs
intelligence", but no entry under the word "intelligence". For example, there was no CD through which
you could search the force orders to try and find what the rules were. There were no rules to regulate the
dissemination of information from Special Branch to the CID. There were rules, the Walker report particularly, which regulated
the dissemination of information from CID, who were very often talking to
criminals who might have information which was national security information so
they had to give that to the Special Branch officers, but there were no
rules. We cannot explain why, and I was
unable to ascertain why, it was not passed on.
Nobody had a specific regulated responsibility to do it.
Q258 Chairman:
So
because nobody had a designated responsibility nobody did it?
Dame Nuala O'Loan: I cannot draw any conclusion
as to why it did not happen, I simply know that it did not happen.
Q259 Mr
Murphy: Sir Peter also goes on to say: "The Security
and Intelligence Services cooperated fully" with your investigation, "within
the limit of their statutory powers".
How limited were their statutory powers?
Dame Nuala O'Loan: Everybody is limited by the
Regulation of Investigatory Powers Act and was previously limited by the
Interception of Communications Act. They
cannot just allow people in to trawl through their systems. It is a matter for Sir Peter, I do not know
what the limitations on them were, but clearly we saw the material which we had
surmised might possibly be there. I did
not personally see it, my senior director of investigations saw it because he
went to the premises and examined what was there. He came back to me and made a report to me.
Q260 Mr
Murphy: Were any specific requests for information
refused?
Dame Nuala O'Loan: No, completely cooperative,
no problems at all.
Q261 Mrs
Robinson: Can I just clarify with you specifically, were
you aware when you wrote your 2001 report of the existence or otherwise of
intelligence intercept information provided by GCHQ to Special Branch?
Dame Nuala O'Loan: If I could say to you, with
respect, Mrs Robinson, I cannot say whether I am aware of intelligence
intercept material. What I can say is
that I am aware of the material which the Security and Intelligence Services
shared with me. The law does not permit
me to say anything else. I have found my
other paragraph. Paragraph 6.22:
"Significant intelligence was held by Special Branch which was not shared with
the Omagh bomb senior investigating officer or the Omagh bomb reviewing
officer", which is another important issue, "Special Branch did not pass
relevant intelligence to the Omagh Bomb Investigation Team until 9 September
1998 and then not all the evidence. Critical evidence was available on 15 August."
Q262 Mrs
Robinson: I take it from what you have been saying that
you believe that Special Branch were in some way to blame basically for the
fact that they did not pass on the relevant information to the local RUC
inspector. In this area, would it not
suggest it was GCHQ?
Dame Nuala O'Loan: Could I enquire, Mrs
Robinson, why you might think that?
Q263 Mrs
Robinson: I felt that was coming across in the way you
were describing Special Branch as an organisation that had no rules to abide
by.
Dame Nuala O'Loan: They did have rules but not
in respect of dissemination of intelligence.
The way in which the Security Service and police operate across the United Kingdom
is that there are designated meeting points, if you like, and the designated
meeting point between the Security Service and the Royal Ulster Constabulary
was Special Branch. Any material which
would come from the Security Service would come to Special Branch and it was
then for Special Branch to determine what they did with it. I do know that on occasion information is
given with a caveat as to its general dissemination, et cetera, but you can go
back and talk to them and seek to use it in some way. If there is a caveat as to its general
dissemination my experience has been that it has been to protect something
specific and obviously one would respect that.
Q264 Kate
Hoey: How do you know that the Security Services
actually passed it on to Special Branch?
Dame Nuala O'Loan: I do know.
Q265 Kate
Hoey: So you know that but you cannot tell us you
know that.
Dame Nuala O'Loan: I am telling you I know that.
Q266 Chairman:
I
would just make the point, Dame Nuala, that you are protected by parliamentary
privilege in anything you say to this Committee. I just want to make that point.
Dame Nuala O'Loan: Does that prevent me from
being prosecuted if I were to commit a criminal offence in this Committee?
Q267 Chairman:
Yes.
Dame Nuala O'Loan: Can I just take advice on
that!
Q268 Kate
Hoey: With the greatest of respect, Dame Nuala, I am
not questioning what you are saying but I am trying to get into my head what I
think the public are probably thinking, which is, "Well, hang on, it seems like
when it suits people something can be put into the public domain or you can
answer questions, but if you do not choose to you can use the fact that it is
somehow the Security Services and you are not allowed to". I am just very unclear about what you are and
are not allowed to tell us.
Dame Nuala O'Loan: I am not allowed under
section 19 of the Regulation of Investigatory Powers Act to refer to a warrant,
the obtaining of a warrant, the content of a warrant to seek interception, et cetera. I am not allowed to refer to the content of
the product of any material which was secured in any process which was
authorised by warrant.
Q269 Kate
Hoey: But you are allowed to tell us that you saw
the intelligence or saw proof that the intelligence was passed on from the
Security Services to Special Branch?
Dame Nuala O'Loan: I have seen proof. My senior director, I beg your pardon, saw
proof and brought it back to me that material was passed to Special Branch, and
I am satisfied that it was passed to Special Branch.
Q270 Kate
Hoey: You did not know the content of that material
or you did not see that?
Dame Nuala O'Loan: I do know the content of that
material.
Q271 Kate
Hoey: So you did know the content of it as well?
Dame Nuala O'Loan: Yes, but I cannot ---
Q272 Chairman:
We
accept that.
Dame Nuala O'Loan: I would like to assist the
Committee fully. I do not want to
choose. One of the things I have spent
days doing is trying to work out what does the law permit me to say.
Chairman: Of course, and we will have
our private session later.
Q273 Dr
McDonnell: I have some very simple questions. You have already touched on this, but can you
put an interpretation on Sir Peter's reference to the "cautious way" in which
the Special Branch acted? Is that in the
context that they did not have any structure for disseminating that
information?
Dame Nuala O'Loan: Again, Dr McDonnell, I think
that is a question for Sir Peter. I
think what he was saying was they did not hand it over and that was a cautious
act.
Q274 Dr
McDonnell: He told us that GCHQ behaved properly and that
he had not been tasked to investigate the actions taken by Special Branch in
August 1998. Do you think he should have
been? Was his remit too tight?
Dame Nuala O'Loan: His terms of reference were
to review any intercepted intelligence material available to the Security and
Intelligence Agencies in relation to the Omagh bombing and how this
intelligence was shared. That was why I said when I read the report I thought
it was confusing that he had looked at sharing between one organisation and
Special Branch, but not at the sharing between the Branch and the CID. He said he was invited as Intelligence
Services Commission, so my reading of that is he restricted himself to
examining whether GCHQ handed any material which they had, and the evidence he
gave was that they did.
Q275 Chairman:
Dame
Nuala, we have heard from the Secretary of State and the Chief Constable that
dissemination policies that are now in place to prevent any delay of suitable
dissemination of intelligence in the future.
Is that your understanding of the changes that have occurred since 1998
or would you dispute that?
Dame Nuala O'Loan: I think, Chairman, there were
two sets of changes which occurred.
There was a set of changes which occurred when I did the Omagh
investigation and then Mr Dan Crompton did the Crompton Review, but then
regrettably I did another investigation which was into the death of a man called Raymond McCourt Junior and as a
consequence of that it was identified that very significant changes were needed
to Special Branch's operational procedures.
From 2003 I was bringing material to the attention of the Chief
Constable because my modus operandi, if you like, was always if I became aware
of something which the police needed to address in order to enable them to be
more efficient I would bring that to the attention of the chief officer as soon
as I could. Appendix 1 of the McCourt
Report, which was published in January 2007, has a list of all the changes
which have been made in Special Branch operating procedures since 2003. For example, there is now a manual which
covers how material should be disseminated.
There are a lot of manuals now about how to do things. From that perspective there are now very
clear procedures. I cannot comment on
anything which may have occurred since I left office in 2007, but the one thing
I would draw your attention to is prior to, I think, October 2007 the PSNI had
primacy in matters of national security; in October 2007 the primacy passed to
the Security Service. The consequence of
that was what happened in Omagh and what happened in McCourt, and all the other
cases in-between, would now operate under a different set of rules, so I cannot
comment on the current database situation because I do not know.
Q276 Mr
Hepburn: You say, and we accept, you are satisfied that
information was passed by GCHQ down to Special Branch. Would that have come as a single piece of
information or did it come as a batch whereby Special Branch gets thousands of
bits of information from GCHQ and they say, "Well, we will deal with that,
this, that and the other, it's nothing special", or would it come through as a
special item?
Dame Nuala O'Loan: My understanding is that
there is a liaison officer and material would come through, if you like, with a
headline on it because a certain amount of analysis is done in the Security
Service as well. I do think that is a
question you should ask the Chief Constable.
Q277 Mr
Hepburn: The point I am making is obviously this was
the biggest atrocity that occurred and if it came as a special item some time
later or earlier then surely it would ring alarm bells. Do you see the point I am making?
Dame Nuala O'Loan: My understanding is that it
came in the evening of the 15th after the bomb had exploded and it
came in response to the bomb explosion, if you like. Here I am speculating, and my speculation
would be that the Security Service would be alarmed and distressed by the
explosion and would immediately go to search to see if they had anything which
might be relevant, anything which had come in in the past hour or so, and
having found that they would pass it on.
My understanding is that is what happened.
Q278 Chairman:
Is
there anything that you would like to say by way of comment on the evidence
that you heard from Mr McCue earlier?
Dame Nuala O'Loan: No. There was a lot of speculation in that
evidence and, apart from that one piece of speculation, I do not deal in
speculation. I think it would be better
if I did not comment.
Q279 Lady
Hermon: Can I pick up on one key bit of the evidence
that was given by Mr McCue and that was he clearly told us, and has been
confirmed by evidence that we have received on previous occasions, that the
investigating detectives after the Omagh bombing and the loss of so many lives
spent literally months and months going through BT records, telephone records,
and they seemed to have no awareness at all that there were key telephone
numbers from mobile phones and we were told by Mr McCue there had been a
pattern of use of certain mobile phones.
When you were reviewing it as the Police Ombudsman, for what reason
would RUC Special Branch not share with fellow RUC detectives information that
they seemed to have had at their fingertips?
Why would they deliberately withhold that very valuable, sensitive but
essential information?
Dame Nuala O'Loan: I think that is a very
relevant question to ask. I will confirm
that there were numbers and names which Special Branch could have given to CID
officers on 15 August. They could have
advised them in general terms, not saying, "These are your bombers", but
saying, "These are possible suspects who you may wish to investigate" and that
did not happen. The consequence of that
was, it is quite true, there was a period of something like nine months during
which they investigated all telephone calls made in the area and the result was
they were starting out and coming in.
Had the Branch given them one, possibly two phone numbers, it would have
been done so much more quickly, but that happened in other cases, that was not
unique to Omagh.
Q280 Lady
Hermon: Can I just follow up on that because it is
absolutely essential. Are you aware of
any protocols imposed by GCHQ that would have prevented the information that
had been given to Special Branch South, and we have taken evidence that Special
Branch South were given that information, going further?
Dame Nuala O'Loan: It is quite possible that
when material comes through it may come as sort of, "Please consult us if you
wish to disseminate this in its raw form".
The reality is that if you get information in and if you go back and ask
the questions about who asked for individuals to be subject to any form of
surveillance, it may or may not be the case that Special Branch ask, but if
Special Branch did ask then they would have known particular numbers might be
relevant in the Real IRA, with whom they were dealing. They would have had some idea. They did have some idea. Had they passed those phone numbers on, had
they passed a couple of names on, I have no doubt --- If you think about it, and I think I am
relying on parliamentary privilege now, my understanding is that if you can get
access to someone immediately after a bomb explodes who may have been involved
in that bomb, and my understanding is also there is information to suggest that
the bombers themselves were taken aback at what happened, that they did not
intend to kill all these people, and if you were then able to arrest them and
bring them in it is possible you might have a much more coherent and complete
conversation with them. It would also
give you the opportunity to go to their homes to search their homes for their
mobile phones, for example. One of them,
and again I am relying on parliamentary privilege, was seized five months after
the bomb exploded.
Q281 Lady
Hermon: Do you believe, or was there evidence that you
received as Police Ombudsman that indicated that the source was being
protected? Was that the reason for the
withholding of information?
Dame Nuala O'Loan: No.
Q282 Kate
Hoey: Do you know and did you see, even if you are
not allowed to tell us, who exactly GCHQ sent the intelligence on to? Was it a named individual within Special
Branch?
Dame Nuala O'Loan: I think it was a named
individual but I could not name the individual.
Q283 Kate
Hoey: But that named individual knows who they are?
Dame Nuala O'Loan: I think there would have been
a person who was receiving information at any point in the day and it would
have come through that route, if you like.
Q284 Kate
Hoey: Were they interviewed by you or anybody?
Dame Nuala O'Loan: We interviewed hundreds of
people and I think you are getting into too much detail.
Q285 Kate
Hoey: It seems to me commonsense that all these
people, who we do not know because we are not important enough, who know this
intelligence and know supposedly it was passed on to a person and there were
all these different inquiries, that person must have been interviewed and it
would be very nice to know, but obviously you do not want to go any further on
that. Did it ever occur to you that
maybe at GCHQ in the two or three weeks immediately after this bombing they
might have thought, "Well, hang on, all these mobile phone numbers we passed
on, all this information...", would there not be somebody at GCHQ who was taking
an interest in what was happening in the investigation into the Omagh bombing
so they would have asked, "How is it the police have to be looking through
mobile phone numbers and so on when we have sent them?"
Dame Nuala O'Loan: When you examine the Omagh
investigation you are dealing with one investigation. Remember there were nine or ten bombs that
year and that was one of the investigations, but you have also got a lot of
other investigations running contemporaneously for other murders that were
occurring at the time in which the Service may or may not have had some role to
play. The process within the RUC was
that Special Branch was separate from CID and police officers described this
situation to Patten as a "force within a force". The principle was that nobody got any
information unless they needed to know and the decision on who needed to know
was not made by the senior investigating officer. The consequence of that was the senior
investigating officer would not know. He
might ask and get general information.
There are many questions which we may come to when we are in private
session.
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