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Procedural hearing October 200717th September 2007, Banbridge Courthouse
Case Management Hearing
The Chairman opened proceedings by way of a prepared statement setting out the issues which had prevented the Inquiry from re-commencing on the 10th September 2007. A number of matters were identified which had resulted in the postponement of the hearings:
o Redaction: this had proven to be more complicated than had been previously thought, as material from one agency, e.g., the Security Services, may contain material that emanates from another Department, e.g., the PSNI, and the redaction process must involve all those who have a claim on the information. The process of redactions to sensitive information in documents provided by the Security Service and the MOD before these can be made public has largely been agreed – the process is ongoing with documents produced by others. All documents must then be put on disc and distributed for all parties to consider.
o Anonymity: decisions on anonymity were delayed pending the House of Lords ruling in the Robert Hamill Inquiry. Another factor causing delay is the time it takes for the PSNI to deal with the Panels request for individual risk assessments. Decisions on anonymity also impact on document disclosure as individual names may have to be redacted.
o Use of material: The Inquiry has run into some difficulty with the use proposed by the Inquiry team of certain information provided by the Ministry of Defence. The difficulty has resulted in the Chairman of the Inquiry writing to the Secretary of State advising him of an impending application by the Ministry of Defence seeking a Restriction Notice under Section 19 of the Inquiries Act 2005 – “[T]his a crucial development in the Inquiry which may have far reaching consequences. The issue arises in relation to certain material, which the Inquiry considers central to one part of its investigation, and which has implications for other parts of the evidence to be heard.”[1]
o Documentation from the PSNI: the most significant reason for postponement of the hearings was a decision by the Chief Constable of the PSNI to set up a review to examine the question of whether the Inquiry had received all the information it had sought under Notices served since November 2005. In May 2007, the Inquiry was notified by the PSNI that the PSNI considered it had done all reasonably within its powers to fulfil the requirements of the Notices that had been served on the Chief Constable. The Inquiry was advised that the PSNI considered the matter now closed and it was on this basis that hearings were scheduled to re-commence on the 10th September 2007. This was despite the Inquiry being “concerned at what appear to be significant gaps in the material provided by the PSNI”. At the beginning of July the Inquiry were informed of the Chief Constable’s review which was unlikely to be completed before mid-October. In August the Inquiry was informed by the PSNI that there was likely to be a further quantity of relevant documents and material, including intelligence material, coming out of the review. Many issues, including new witnesses and the preparation of witness statements may arise as a result of this late disclosure. The Inquiry considers it “particularly relevant that, even if the mid-October date were met, it would mean that this [PSNI] review would have taken over three months to complete”. The Inquiry expressed its extreme regret that it had been put in this position shortly after the public hearings had commenced. Despite several meetings between the Inquiry and representatives of the PSNI, almost every week over the summer recess the Inquiry has continued to receive from the PSNI various papers, many of which are said to be in response to the Notice that was served in November 2005.
The Inquiry Chairman also commented on “unhelpful” press speculation and “continuing correspondence” about issues which he deemed “not helpful”. He also emphasised the inquisitorial and not adversarial nature of the Inquiry.
The PSNI legal representative responded to the comments made by the Chairman by stating that the former RUC was more concerned with fighting terrorism than keeping documents and this had resulted in administrative structures not designed to deal with the extent of requests from this and the other Inquiries. It was further stated that information was held in many different locations and in different formats, including “oral history” and that, following Patten, there had been a lose of corporate memory and experience. In June 2007 a special report was commissioned by the PSNI. Sam Kincaid was in charge of the review and subsequent report. The PSNI contended that, as regards document disclosure, “our integrity is intact”.
In reply, the Chairman said he was unimpressed by the numerous locations requiring consideration by the PSNI – “The Inquiry is looking to discover intelligence information – no more and no less”. The Chairman stated that, should disclosure remain an ongoing issue, the Panel would give consideration to having a document recovery hearing and would also keep open the possibility of producing an interim report on the issue.
Following the Chairman’s statement, submissions were made on behalf of David Wright concerning the continued need for separate representation for individuals and organisations by both the Crown Solicitor’s Office and the Treasury Solicitor. All three parties had lodged skeleton arguments with the Panel detailing their submissions. After hearing from all the parties the Panel reserved their ruling on the issue.
1st October 2007
Press release on the BWI website
The Panel gave a ruling on the issue of representation by the CSO and Treasury Solicitor. They decided that the reasoning behind the separate representation was genuine in that a conflict of interests could arise among witnesses. They deemed it appropriate for both parties to continue to be required to attend the hearings in light of the remit and potential impact on the evidence of their respective clients when other witnesses are called to give evidence.
26th October 2007
Press release on the BWI website
The Inquiry have received Sam Kincaid’s report from the PSNI and is not satisfied that it comprises a full response to the Notices served on the PSNI since November 2005 or that it deals with all outstanding queries. The report does not provide any new or additional material and has not lead to the production of specific intelligence documents that have been sought by the Inquiry. The Panel has therefore decided that it will publish an Interim Report on this issue. This should be ready in early January 2008 but, in accordance with the Inquiries Act 2005, there has to be consultation with the Northern Ireland Office regarding publication of the report.
19th December 2007
Press release on the BWI website
The Panel has re-considered its decision to publish a report following the PSNI review report of Sam Kincaid and has decided, in the interests of time, to deal with the matter by way of a Position Paper. This Paper will be made available to all parties and considered at a hearing on the 21st January 2008. Oral hearings will then re-commence on the 28th January 2008, allowing the parties time to consider the Position Paper before oral hearings begin.
[1] I am not aware if or how this matter has been resolved.
For Peace Justice & Human Rights
