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Day: 6 Billy Wright Preliminary Hearing (cont’d)
Date: 4th December 2006
Start time: 10.40
End time: 16.50
Background:
The panel re-convened today to hear from the final witnesses into its inquiries regarding the availability or non-availability of relevant documentation. Three witnesses were called, Richard Malloy, Witness O and Peter Drew. Witness O had applied for anonymity but the panel had not yet had an opportunity to meet to consider this application. Anonymity was therefore granted on a pro tem basis for the purpose of this hearing. As this is the final day of this preliminary stage of the Inquiry, the panel invited closing submissions from those represented at the end of the oral evidence.
Detail:
Richard Malloy was the first witness. He has been recalled to the
Inquiry for a second day of oral evidence. The Inquiry had called Mr Malloy back as another witness, Governor Tom Woods, gave oral evidence previously that Mr Malloy had come to the Security Information Centre [SIC] at the Maze and taken away a number of Maze SIC Intelligence files other than the Prisoner Security Files that Mr Malloy had told the panel about on the last occasion he gave evidence. It was also put to Mr Malloy that Governor Ian Johnston, in his statement, stated that he had arranged for Mr Malloy to go down to the Maze and collect the papers and bring them back to Maghaberry. Mr Malloy agreed that, in line with the written statement of Governor Johnston, he had actually gone to the Maze SIC in “mid-2003” and the documentation and paperwork was cleared in the space of two days.
On the first day he was accompanied by two staff and they were in the SIC for approximately 3 ½ to 4 hours. During this time they removed one secure filing cabinet from the Security Governor’s office and also half filled about 20-30 industrial type brown paper bags. On the second day Mr Malloy asked Witness K and another member of staff to go to the office and remove the hard drives from the computer. Mr Malloy stated that the files he lifted included a large amount of loose paper and that the files in the filing cabinet were indexed alphabetically. He stated that the security personnel would have indexed the files and he has not seen the index since that day. Mr Malloy stated that these removed files were transferred to “the cage” – a secure store in Maghaberry that could only be accessed by the security department in Maghaberry. He stated that, from reading Governor Ian Johnston’s evidence, his understanding was that the files had subsequently been destroyed. [Governor Johnson detailed in his statement at paragraphs 16 and 17 that he deployed prison officers to go through the files and to pull out the ones that he thought might have been of historical interest to Public Records Office of Northern Ireland (PRONI). He further states at paragraph 18 that all the files were burnt at Maghaberry]. Mr Malloy stated that he was not involved in any of the processes of reviewing the files, pulling out ones of historical interest or of burning the others.
Mr Malloy was shown emails which provided information that, as of the 6th May 2004, the Director of Services, the FOI Project Manager, the Director of Operations and Mr Woods all knew that the security files had been destroyed. An email from Mr Woods on the 6th May 2004 was also evidenced in which Mr Woods stated “no files were destroyed during my time in the Maze”.
Mr Malloy confirmed that there was no record of either the authorisation given or of the destruction of the Prisoner Security Files. He also confirmed that there was no record kept of what files were removed. Email evidence was also introduced, but to which Mr Malloy was not a party, the totality of which suggested that the computer records in relation to Martin Mogg’s time at Maghaberry [his OASIS diary] had been removed from the computer system.
Witness O was the second witness called. He had provided a statement to the Inquiry since the last hearing. He stated that he knew of the existence of the Prisoner Security Files in the Maze but did not have any involvement in their destruction. He knew the files from the Maze were kept in filing cabinets in the Security Governor’s office in Maghaberry.
He stated that all Maghaberry prisoner security files were computerised around the end of 2004 and this would have been the time that the Maghaberry Prisoner Security Files were destroyed. There were roughly “several hundred” Maghaberry files which it took several weeks to destroy.
In an email Witness O sent to Witness K and others dated 2nd May 2006 he stated that
Maghaberry SIC moved to a SASHA only system following recommendations made by Martindale in 2003. All relevant hard copies were destroyed after ensuring that all relevant information was contained in the SASHA record.
He confirmed that correspondence from NIPS to the Inquiry team would suggest to a reader that Maze files were destroyed at the same time as the Maghaberry files – Witness O said that this representation was wrong. He stated that, although he was unsure when the Maze Prisoner Security Files had been destroyed, it would have occurred sometime before the Maghaberry files were destroyed at the end of 2004. Witness O also stated that he had spoken to Witness K “fairly recently” and told him that if he thought that the Maze files had been destroyed on the same occasion as the Maghaberry files he was wrong. In cross-examination Witness O confirmed that he had been aware that there was Maze security files in the security Governor’s office and that Governor Maureen Johnson had told him that Governor 1 [Martin Mogg] had said to get rid of the files. He stated that he had just had a general conversation about the files with Governor Maureen Johnson and that neither he nor she expressed any concern that the files would be destroyed.
Following questions from the Inquiry panel, Witness O stated that he knew what was in the cabinets at the end of 2000 as he had asked someone out of curiosity. He confirmed that it was common knowledge as to what was in the cabinets. He denied any knowledge of the NIPS policy relating to the destruction of historical records. He also confirmed that, although the files relating to Maghaberry had been gone through to make sure all the relevant material was put on the SASHA system, this had not been done for the Maze files.
Peter Drew was the last witness of the day. He confirmed his involvement in destroying “security files” (buff folders) from the Maze while working in Maghaberry. He stated that Mr Malloy had told him that the folders contained security files on prisoners. He recalled that in or around the first two weeks of February 2002 he returned to work on a “back to work” programme and on the first day back he met Mr Malloy who asked him to come to work in the security department for the two weeks. One of his jobs was the burning of security files from the Maze. Richard Molloy identified the files to be burned – they were in about half a dozen filing cabinets in the Governor’s office. He calculated there were about a “few hundred” files. He stated that although Governor Maureen Johnson and Mr Malloy were “probably” in the Governor’s office on occasion while he was carrying out his task, only he physically removed the files and destroyed them. The files were emptied into burn bags and taken to the incinerator by Mr Drew personally. He was told to incinerate the files by Richard Molloy but was not given any reason as to why the files were being destroyed. He would have had to carry the bags along a corridor past Mr Malloy’s office. He also stated that Governor Maureen Johnson “would have been in and around the area” but he did not recall seeing Mr McNally.
Mr Drew described how he recognised some of the names on the files he was destroying. By chance, he came across Billy Wright’s file which he gave to Governor Maureen Johnson. He asked if she felt the file would be required and she said yes and took it from him. He does not know what happened to it after that. He confirmed that he did not make a record of the destruction but had verbally informed Mr Malloy that it had been completed.
Closing submissions
Derek Batchelor, Counsel for the Inquiry: Submitted that it was only after 18 months of requests to NIPS that the Inquiry has a clearer idea of the nature and extent of the intelligence material that would have been available to the Security Department in HMP Maze and to prison headquarters for the period in which the Inquiry has an interest. There is a large question mark over whether the totality of information and records relevant to the list of issues is now available to the Inquiry. This fact, NIPS response and the evidence heard is a matter the Inquiry panel will require to take into account in due course. For example, the information given to the Inquiry Team about the existence of security files was:
incorrect and misleading. Prisoner Security Files devoid of content and in pristine file covers were provided to the Inquiry in a way that was likely to mislead.
Mr Batchelor concluded by saying:
the situation that the Inquiry now faces is that if the lack or absence of material records is of sufficient materiality that at the end of the day questions cannot be decisively determined on the direct factual evidence and inferences have to be drawn, then … it will be difficult, if not impossible, for the panel to draw any inferences that are favourable to the Northern Ireland Prison Service.
Alan Kane, Counsel for the Wright Family: stated that the family ask that truth and justice prevail. He considered that adverse inferences may necessarily follow at the appropriate time in addressing the questions posed by the Inquiries terms of reference. He requested that NIPS address the contradictions and doubts that have arisen as a result of the preliminary inquiry.
Paul Maguire, Counsel for NIPS, Maureen Johnson, Richard Malloy and Witness K: He stated that NIPS have complied as far as they can but can only disclose what is in their possession. He also felt that:
the Prison Service are as much of a victim in terms of the potential way in which the substantive hearing will run as the inquiry in respect of the shortfall of documents.
He stated that NIPS will continue to search for documents and provide them to the Inquiry when possible. He reiterated that the evidence before the panel is that Martin Mogg gave the instruction for the destruction of the Maze Prisoner Security Files. He revealed that both Governor Maureen Johnson and Witness K had received Salmon letters and submitted that this was inappropriate and beyond the “Salmon Principles” dictating the way in which such letters are to be sent.
Derek Batchelor, Counsel for the Inquiry: responded by saying that the Salmon letters were sent as a result of the evidence given by Governor Maureen Johnson and Witness K. The Inquiry could not send these letters beforehand, as was best practice within the Salmon Principles, as they did not know what the witnesses were going to say until they said it in oral testimony. He concluded that, in any event, no criticism may be raised in relation to either witness – the Salmon letter serves only as an indication that there might be a basis for criticism of their evidence.
Supplementary
Following Paul Maguire’s closing submissions, Lord MacLean challenged his reference to this stage of the Inquiry as a “proper” inquiry. Lord MacLean had had reported back to him that Mr Maguire had said in the High Court the previous week (at a Judicial Review leave hearing regarding anonymity) that this “was an inquiry not known to the law”. Mr Maguire explained that he had meant that “there was no animal described as a preliminary hearing found in the Inquiries Act”. Lord MacLean also questioned him as to whether or not he had stated in the High Court that “unsavoury questions” were asked of Governor Maureen Johnson. Mr Maguire stated that he could not recall using that phrase. Lord MacLean emphasised Counsel’s duty to object at the time and raise the matter. Lord MacLean stated:
This panel is independent and I am determined that it should be seen to be independent. So, if Counsel to the Inquiry asks an improper question, or goes off on an unfair line of questioning, you must object so it can be discussed in the open. There is nothing worse than being told the Counsel said something before the Inquiry and went off to the High Court and said something else by way of objection. Is that quite clear?
Conclusion:
The Panel confirmed that the substantive hearings would sit in Banbridge from Monday to Thursday and that they hoped that they would commence after Easter or possibly into May of 2007.
Mr Kenny McClinton sought to intervene and ask a question. Lord MacLean told him he could not. Mr McClinton then asked the Panel to confirm that he was not allowed to put in any sort of representation as a member of the public and an interested party. Lord MacLean replied “well, not just now…no doubt we will hear from you but no”.
END
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