- - - - - - - - - - BILLY WRIGHT PUBLIC INQUIRY - - - - - - - - - - held at: The Court House Banbridge County Down on Wednesday, 1st July 2009 commencing at 10.00 am Day 155 I N D E X Submissions by MR JOHNSON ........................ 1 Submissions by MR KANE ........................... 115 1 Wednesday, 1st July 2009 2 (10.00 am) 3 THE CHAIRMAN: Mr Johnson? 4 Submissions by MR JOHNSON 5 on behalf of TREASURY SOLICITORS 6 MR JOHNSON: My Lord, members of the Panel, these 7 submissions supplement our written submissions which are 8 at CS05, starting at page 1; CS05-0001. We sought in our 9 written submissions to cover each of the issues 10 identified by the Panel in its list of issues as 11 relevant to the Inquiry, as well as also covering each 12 of the 190 questions raised by Leading Counsel to the 13 Inquiry. 14 In case there is a danger of the trees obscuring the 15 wood, we would wish in particular to highlight 16 chapters 1-8 and chapters 10 and 12 as containing our 17 main submissions on what seem to us to be the key 18 issues. 19 Chapter 24 at the end contains a summary of our 20 answers to each of the questions asked by Leading 21 Counsel to the Inquiry. 22 On the question of conspiracy we adopt everything 23 that has been said in very convincing submissions of 24 Ministers, and also the Security Service and of PSNI and 25 by the CSO yesterday. 1 1 In addition, the submissions that Mr Beer made 2 yesterday to the effect that the family's conspiracy 3 allegation is not maintained against his clients, apply, 4 in our submission, equally to our clients and 5 I gratefully adopt them without repeating them. 6 The death of Billy Wright has given rise to all 7 sorts of allegations and suspicions. A book has been 8 written on the subject and many, many other words have 9 been written and spoken. 10 The Panel has heard a wealth of evidence, some 11 90,000 questions and answers, 189 witnesses, 152 days of 12 evidence. If the Panel considers that any of the 13 suspicions that the State intentionally facilitated 14 Billy Wright's death are well-founded, then it will, of 15 course, say so, and that's a matter of prime importance, 16 but where suspicions are not well-founded, the Panel has 17 an equally important duty in the interests of peace and 18 reconciliation in Northern Ireland, as well as to fulfil 19 its terms of reference, to lay them to rest once and for 20 all. 21 The Inquiry has, of course, carried out a most 22 thorough, painstaking, detailed and public examination 23 of every aspect of the regime in which Billy Wright was 24 held in NIPS' custody. 25 In the course of that examination, a large number of 2 1 questions have been raised on many, many topics, 2 including decision-making, control and security, 3 warnings and a host of other matters. 4 In our written submissions we have sought to respond 5 to those questions, in each case giving a summary of 6 NIPS' case and references to the relevant document and 7 evidence transcripts, and within reason and the time 8 available we sought to make those submissions fairly 9 comprehensive. 10 My Lord, in the half day in which we now have to 11 address you orally, we seek to emphasise what we think 12 may be some of the most important considerations, but 13 also to reply to the submissions that have been made by 14 the other parties, both in writing and those that have 15 been made orally hitherto. 16 We begin very briefly with the purpose of the 17 Inquiry. That's addressed at chapter 3 of our 18 submissions. The first and most important finding which 19 we submit must be made is that there was no State 20 conspiracy to murder Billy Wright, that in the words of 21 the terms of reference, "The State did not intentionally 22 facilitate his death". The Inquiry has a great deal of 23 evidence in relation to each of the allegations and 24 suspicions of conspiracy. The Panel will no doubt wish 25 to subject that evidence to detailed consideration 3 1 before reaching the conclusion, which we submit is the 2 only available conclusion, that the state did not 3 intentionally facilitate the murder. 4 Once that conclusion has been reached, we very 5 respectfully submit that it is necessary to pause and to 6 take stock of what else needs to be resolved by the 7 Inquiry. It is here that we urge the Panel to bear in 8 mind the context in which the Inquiry was directed to 9 take place. 10 There is, we submit, a crucial difference between 11 this type of Inquiry and, for example, a public Inquiry 12 into a disaster such as a train crash. In that type of 13 Inquiry, a major accident Inquiry, an important purpose, 14 if not the primary purpose, is to learn lessons and make 15 recommendations for the future protection of the public. 16 This Inquiry, we submit, is very different. The 17 Maze Prison has been closed for a number of years. The 18 troubles, thankfully, have given way to more peaceful 19 times. Only last week the UVF announced that they had 20 decommissioned their weapons and the UDA announced they 21 had begun a similar process. 22 The prisons context is very different from that 23 which existed in 1997. For the reasons we give at 24 paragraphs 44-48 of our written submissions, the Panel 25 may conclude that this Inquiry is not a convenient 4 1 vehicle for making many or any recommendations for the 2 future as regards the Prison Service. 3 For this reason, as we submit in paragraph 52(viii) 4 of our written argument, this is not and should not be 5 an Inquiry into how the Maze was run or managed in 1997. 6 Rather, it is an Inquiry into the death of Billy Wright 7 in order to establish whether there were any wrongful 8 acts or omissions which facilitated his death and 9 whether any such wrongful facilitation of the death was 10 intentional. 11 We recognise, as we have sought to emphasise in our 12 written submissions, that it is entirely for the Panel 13 to interpret its own terms of reference and to set the 14 ambit for its own report, but we respectfully urge the 15 Panel to direct its examination of the Maze in 1997 16 towards answering the key question, "What happened to 17 Billy Wright?" rather than towards a review of the 18 operation of the Maze or NIPS for the sake of such 19 a review. 20 Our primary submission is that made at paragraph 3 21 of our written submissions and developed at chapter 4. 22 It is that there should be a very clear finding that 23 NIPS, and, for that matter, the State generally did not 24 intentionally facilitate the murder. 25 The family have focused their submissions on the 5 1 Cory definition of "collusion" and their written 2 submissions are strewn with references to "collusion" 3 and "complicity". This is an instance of what we refer 4 to in our written submissions at paragraph 28(iii) as 5 shadow boxing: namely, different parties addressing the 6 same evidence by reference to different frameworks. 7 The framework we invite the Panel to adopt is the 8 framework prescribed by the terms of difference. If 9 each of the word in the terms of reference is given its 10 ordinary, everyday, non-technical, non-legalistic 11 meaning, and if the terms are approached in the manner 12 we suggest at paragraphs 31-43 of our submissions, they 13 provide an apt vehicle for determining the conspiracy 14 allegations that have given rise to this Inquiry. 15 If the Panel disagree with this submission, and 16 consider that the terms of reference are in any way 17 inappropriate, the correct approach would be to invite 18 the Secretary of State to amend the terms of reference, 19 as was done, I think, by the Robert Hamill Inquiry. 20 It would not be appropriate, in our submission, to 21 abandon the terms of reference altogether and use some 22 other framework in its place. If, by using language 23 that does not appear in the terms of reference, the 24 family are inviting you to take that approach, then that 25 invitation should be resisted. 6 1 Your terms of reference do not use loaded language 2 such as "collusion" and "complicity", which might bear 3 controversial and different meanings. The terms of 4 reference require consideration of whether the murder 5 was intentionally facilitated and that's a very clear 6 and straightforward question where there is little 7 scope, we say, for interpretation. 8 Obviously, the very fact that Billy Wright was 9 sentenced to imprisonment and detained at the Maze was, 10 on one view, a factor that facilitated his death, and if 11 facilitation is used in a broad sense, then there will 12 be very many acts which facilitated his death in the 13 sense of leading up to the set of circumstances in which 14 the murder took place, but there is no evidence, no 15 evidence at all, that the prison authorities, or indeed 16 any other organ of the State, intentionally facilitated 17 the murder. 18 It is no longer alleged by any party, including the 19 family, that NIPS did so for the reasons given by 20 Mr Beer yesterday. In the 240 pages of very detailed 21 written submissions the family do not allege anywhere 22 that there is any evidence to support a suggestion that 23 the prison authorities intentionally facilitated the 24 murder. 25 At CS19-0186, lines 5 to 6, the family use the word 7 1 "unwitting" in respect of NIO and, therefore, we 2 suggest, explicitly recognise there was no bad faith on 3 the part of officials and no intentional facilitation of 4 the death by NIO, NIPS or their employees. So we invite 5 the Panel to accept their primary submission, but to do 6 so only after satisfying itself that there is no 7 evidence to support the allegation. It is only by doing 8 this that the allegations and myths can finally be laid 9 to rest. 10 If the Panel then decide to go beyond the conspiracy 11 issue, then we make a number of further submissions 12 about the ambit of the Inquiry. They are set out at 13 chapter 3 of our submissions. We are not going to 14 repeat them orally, but we do just mention our general 15 concern, that if there is a general review of the Maze 16 in 1997, which is not linked to the terms of reference, 17 then there is a risk that focus will be lost and the 18 focus on the central function of the Inquiry will be 19 lost. 20 So far as our remaining submissions are concerned, 21 I am going to deal first with the issue of health and 22 safety and risk assessments, which emerge as the major 23 theme of the submissions of both the Prison Officers' 24 Association and the family in respect of the 25 Northern Ireland Prison Service. I will then broadly 8 1 follow the structure of our written submissions, not 2 repeating what we have said in writing, but seeking to 3 do three things: firstly, highlighting and explaining 4 those failings which we acknowledge at the outset of our 5 submissions at paragraph 4; secondly, responding to the 6 submissions that have been made by other parties; and, 7 thirdly, expanding on what we see as the key issue if, 8 once the conspiracy allegation has been dismissed, it is 9 necessary to go further. 10 Both in our written submissions and to a lesser 11 extent in the oral submissions we present now, we have 12 taken a number of process points, in that we say there 13 are a number of matters that the Panel should not deal 14 with without further evidence. We emphasise that we 15 acknowledge that it is for the Panel to interpret its 16 own terms of reference and to decide what matters to 17 investigate and what evidence it requires. 18 With only one exception, the exception being the 19 statement to Parliament point, we do not suggest that 20 the Panel is prohibited from dealing with any issue that 21 has been raised by Counsel to the Inquiry or the other 22 parties. 23 All we say is that just because an issue has been 24 raised, it does not mean that it has to be addressed, 25 and where a new issue has emerged which is not on the 9 1 Inquiry's list of issues and has not been the subject of 2 full exploration in the evidence and has not been the 3 subject of Salmon letters, the Panel should consider 4 with care whether it is really necessary to determine 5 that point. If it is really necessary to determine the 6 point, the Panel should then further consider whether 7 additional evidence is required. 8 My Lord, I turn to the POA submissions and what we 9 say about health and safety and risk assessments. 10 We were not proposing to address this issue in our 11 closing submissions. Although it is mentioned briefly 12 in our written submissions, we didn't address it in any 13 detail. The reason is, although health and safety is 14 obviously very important as a matter of generality, it 15 did not and does not seem to us to be a matter of 16 importance for this Inquiry on its terms of reference, 17 but in the light of, we say, the disproportionate 18 prominence that's now given to it by the POA and the 19 family, it is important that I explain why we consider 20 it is unimportant. 21 I don't dwell on the general fairness point that 22 Mr Beer made yesterday, Day 154, page 112, line 18. We 23 don't say that the Panel is prohibited from addressing 24 the question of health and safety, but we do agree with 25 Mr Beer that, if it does so, it should consider very 10 1 carefully whether it needs to hear further evidence, 2 including from Mr Lavery. Mr Beer made the point that 3 we expressly raised this issue during the hearings. The 4 reference for the transcript is Day 118, page 119, 5 line 7 and page 122, line 22. As I say, I don't dwell 6 on the process or fairness point. 7 We do, however, submit it is not necessary for the 8 Panel to concern itself with the technical, legal issues 9 that have been debated by Mr O'Donoghue and Mr Beer. 10 That's because the terms of reference are not, in our 11 submission, to be interpreted in a legalistic or 12 technical manner. The Inquiry has far greater room for 13 manoeuvre than just by looking at narrow and technical 14 legal questions. It is completely open to the Panel to 15 consider the reasonableness of the steps that were taken 16 to protect Billy Wright without engaging on a detailed 17 analysis of health and safety legislation and precisely 18 what was required under the legislation. Put shortly, 19 you do not need the health and safety framework in order 20 to carry out the inquisitorial functions required under 21 the terms of reference. 22 So just by way of example, we agree with Mr Beer 23 that the Panel does not need to embark on questions of 24 interpretation of the European directive that is raised 25 at paragraph 5.2 of the POA submissions, CS16-0011, 11 1 paragraph 5.2. 2 We have not even looked at the framework directive 3 in the course of this Inquiry. We have not, for 4 example -- and this is just one of the questions that 5 would arise on a Francovich claim -- considered whether 6 the exemption under Article 2.2 for certain public 7 sector activities such as the police would apply. 8 The Inquiry does not need to involve itself with 9 these questions. With great respect, the fact that the 10 POA even raises the point demonstrates, in our 11 submission, their capacity to start an argument when 12 there is only one person in the room. The issue is 13 completely unnecessary. It is a completely unnecessary 14 diversion which risks distracting the Inquiry from its 15 real purpose without any real benefit. It is as 16 unimportant as the matter we raised at Day 24, page 95, 17 line 17, and we submit that most of the matters raised 18 by the POA, with great respect, fall into the same 19 category. 20 My Lord, I turn now to what the POA say at page 28 21 of their submissions, paragraph 8.4.8, and compare it 22 with the legislative framework. That's at RH78-0001. 23 If we go forward, please, to page RH78-0010 on the 24 right-hand page and highlight Article 8, because the 25 issue has been raised, both by the POA and the family, 12 1 and because we have not been told we don't have to deal 2 with it, we are just going to spend a short period of 3 time of the precious time allotted to us explaining what 4 our response would be if this really were an issue. 5 The first thing to establish is the relative 6 legislative framework. The starting point is not the 7 1992 regulations which were referred to by the POA. The 8 starting point is the 1978 Health and Safety at Work 9 Order. That's the governing legislation for the 1992 10 regulations. Article 8 of that order is on the 11 right-hand side of the page. It provides a duty that is 12 owed by employees and the duty is that: 13 "It shall be the duty of every employee while at 14 work: 15 "(a) to take reasonable care for the health and 16 safety of himself and of other persons who may be 17 affected by his acts or omissions at work ..." 18 And also: 19 "(b) to cooperate with his employer so far as is 20 necessary to enable that duty or requirement to be 21 performed or complied with." 22 We invite the Panel to compare that very clear 23 statutory obligation with the central submission that's 24 made by the POA. That central submission is reflected 25 in many places in their written and oral argument, but 13 1 we have on the left-hand side of the screen 2 paragraph 8.4.8, where it is said that: 3 "Jim Duffy's first and only duty was to members of 4 his union. Neither he nor the POA owed or could owe any 5 common law or statutory duty to prisoners within NIPS 6 charge." 7 In our very respectful submission, leading counsel's 8 submission, which no doubt is made on his client's 9 instructions, is simply misconceived in law. It 10 reflects the POA's general and fundamental 11 misunderstanding that it is only the union that matters 12 and no duty is owed to anyone else. That is 13 demonstrated by Mr Duffy's directive to staff not to 14 comply with the Governor's instruction -- for the 15 LiveNote transcript that's at WS051-0079 -- to enter 16 exercise yards and lock grilles. 17 That directive, which is on the left-hand side of 18 the screen, was an injunction to every member of the 19 staff to disregard the Governor's instructions. It says 20 in terms: 21 "No", in capital letters, bold and underlined, 22 "member of staff will enter exercise yards at 23 22.00 hours and lock grilles." 24 Mr O'Donoghue has repeatedly referred to a need to 25 distinguish the substance of what Mr Duffy says from the 14 1 very intemperate manner of its expression. He is right 2 to concede the unhelpful manner, but he is, in our 3 submission, wrong to suggest that the substance can be 4 divorced from the manner of expression. 5 Here the substance was a plain inducement to prison 6 officers to breach a Governor's instruction. The 7 instruction was directly related to security and, 8 therefore, to the safety of staff and prisoners. 9 A directive not to comply with that instruction is 10 not cooperation within the meaning of Article 8(b). It 11 is precisely the opposite. That is what gives rise to 12 what we accept at paragraph 4(viii) of our written 13 submissions is a failing in this case. It is 14 a failing -- it is demonstrative of an attitude which is 15 extremely unhelpful and which, far from promoting 16 safety, very significantly undermines it. 17 THE CHAIRMAN: Could you give me that reference again? 18 MR JOHNSON: Paragraph 4(viii). 19 THE CHAIRMAN: Where is that? I would like to tie it into 20 the text. 21 MR JOHNSON: Paragraph 4 should start: 22 "NIPS further submits that ..." 23 THE CHAIRMAN: Oh, it is right at the very start. 24 MR JOHNSON: It is right at the very start, paragraph 4, 25 page 1 in the internal numbering. 15 1 (viii) is page 3: 2 "Fences in the yards at Maze were not checked 3 because the POA ..." 4 My Lord, I am only at page 3 of my written 5 submissions. I will speed up. 6 It is demonstrative of an attitude which we say very 7 significantly undermined safety. Mr Shannon said in 8 evidence it was of dubious legality. Having regard to 9 Article 8(b), we suggest that "dubious legality" is, if 10 anything, an understatement. Indeed, it is one example 11 of many examples of the distinction that can be drawn 12 between, on the one hand, what I called on Monday POA 13 hyperbole, and, on the other hand, classic Civil Service 14 understatement on the part of Mr Shannon. 15 The instruction was, if it is necessary to descend 16 into legal technicalities, unlawful, not only because of 17 Article 8(b) but also because of section 127 of the 18 Criminal Justice and Public Order Act 1994. That 19 provision makes it unlawful to induce a prison officer 20 to commit a breach of discipline. It is the same 21 provision which makes industrial action by the POA 22 unlawful, but quite apart from the statutory duties owed 23 by members of the POA, the POA, as a body, as well as 24 its individual members, can be liable to prisoners for 25 damages in a private law tort claim. 16 1 The submission that has been made to the contrary 2 is, we would respectfully submit, incorrect. A case 3 which demonstrates that possibility, the possibility of 4 a private law tort claim, against the POA is the 5 decision of the Court of Appeal in Toumia v Evans 6 reported in The Times of 1st April 1999. We can make it 7 available, if need be. 8 In that case, prison staff had, following a POA 9 meeting, refused to carry out their duties of unlocking 10 prisoners. The result was that the plaintiff in that 11 case remained locked in his cell, whereas he would 12 ordinarily have been released for meals and activities. 13 He brought a claim against David Evans, who was the 14 Secretary General of the POA at the time, and the action 15 was brought in false imprisonment and malicious 16 prosecution. The Court of Appeal allowed the action to 17 proceed and recognised that private law remedies might 18 be available at the instance of prisoners. 19 I turn back to 8.4.8. We also have on the screen 20 paragraph 5.5.3 of the POA submissions. It is important 21 to note that the central submission which is reflected 22 in 8.4.8, is erroneous whether or not health and safety 23 legislation applies to prisoners. That's because, on 24 any view, health and safety legislation does apply to 25 all employees, including staff who are not members of 17 1 the POA and including, for example, Governors. 2 At paragraph 5.5.3, though, CS16-0012, the POA 3 assert, without providing any argument or authority in 4 support, that health and safety legislation applies to 5 prisoners. That submission was repeated orally on 6 Monday at Day 153, page 88, line 20. 7 If that is an accurate statement of the law, then 8 the POA's central submission that no duty is owed to 9 individual prisoners is wrong for this further reason, 10 but it should not necessarily be assumed that the POA 11 are correct to assert that the health and safety 12 legislation applies to prisoners. 13 As Mr Beer explained yesterday, Day 154, page 115, 14 line 1, the case law in the leading textbook suggests 15 that health and safety legislation does not generally 16 apply for the protection of prisoners. Mr Beer relied 17 on Owen & McDonald on Prison Law at paragraph 5.33. 18 It would have been immediately apparent to the Panel 19 that Mr Beer was relying on an out-of-date edition of 20 the book. The current 2008 version of the same textbook 21 does, however, make the same point at paragraph 5.37. 22 We simply say this is a complex issue of law. It is not 23 necessary to get into it. 24 The complaint that is made by the POA and the family 25 is not that there is some substantive step that should 18 1 have been taken, it is simply that we should have 2 completed a formulaic risk assessment, but such risk 3 assessments are in themselves simply a question of 4 process. No risk assessment in itself is going to 5 prevent any accident or any assault or any risk of 6 injury. It is only steps that are taken consequential 7 upon a risk assessment that can have any substantive 8 effect and, if the submission of the POA and the family 9 is to be entertained, then it is necessary to analyse 10 what the consequence of a risk assessment on their terms 11 would have been and whether it could, or would, have 12 made any difference. 13 At CS16-0005, lines 8-10 of the POA submissions it 14 is said that, had proper risk assessments been 15 conducted, the murder would have been avoided. That's 16 the POA's ultimate submission on this question. It was 17 repeated in oral submissions on Monday, Day 153, page 18 91, line 21. 19 Beguilingly attractive as it is when put by 20 Mr O'Donoghue, it is, we respectfully submit, simply 21 rhetoric, which is empty of any content unless it is 22 backed up by an analysis of what different steps would 23 have been taken as a result of a risk assessment. 24 No justification for the suggestion that a risk 25 assessment would have made a difference is given. In 19 1 particular, it is not shown what different accommodation 2 arrangements would have been reached if a risk 3 assessment on the POA's terms had been completed. 4 Unless it can be shown that filling in a form headed 5 "Risk Assessment" would have made all the difference, 6 the central submission of the POA and the family simply 7 doesn't go anywhere. 8 A point that we sought to stress in our submissions 9 throughout is that it is very easy to criticise the 10 decision to locate the LVF and INLA in the same H Block, 11 but such criticism only has validity if there is 12 an obviously better alternative. A risk assessment 13 would only have had any impact on the outcome if it 14 generated some alternative. 15 There are two important features of a risk 16 assessment. They are, firstly, the identification of 17 risk and, secondly, the identification of measures that 18 can be deployed to manage the risk. 19 At CS16-0017, starting at paragraph 6.8, the POA 20 list the risks they say existed and should have been 21 assessed, but NIPS were only too well aware that there 22 were risks that attached to the location of the LVF. 23 A risk assessment would not have resulted in the 24 identification of any risk that was not already shown to 25 NIPS. 20 1 When one looks at the list of risks that is 2 identified by the POA, there is nothing revelatory. 3 There is nothing that was not apparent to NIPS at the 4 time. So the assessment would not have revealed the 5 existence of any risk that was not appreciated at the 6 time. 7 One factor that is noticeably absent from 8 Mr O'Donoghue's long and, we say, exhaustive list is the 9 risk of an armed attack over the roofs. That arises 10 from the question at 4.31 of Counsel to the Inquiry's 11 submissions. Mr O'Donoghue is right, in our submission, 12 not to adopt that as a risk in his list. A suggestion 13 that this was a risk that should have been specifically 14 identified and foreseen owes everything to hindsight. 15 It is not a suggestion that either the POA or the family 16 seek to make, and I repeat that they are right not to do 17 so, but we deal with that in more detail in 18 paragraphs 1414 to 1417 of our written submissions. 19 So that's the first feature of risk assessments, the 20 identification of risk. 21 The second is the identification of measures that 22 could have been deployed to manage the risk. On that 23 aspect Mr O'Donoghue rightly recognised, Day 153, 24 page 90, line 5, that one can only have regard to that 25 which is reasonably practicable. We have sought to 21 1 explain in considerable detail, both in our questioning 2 of Sir Richard Tilt and in our questioning of 3 Alan Shannon and in our written submissions, 4 particularly at paragraphs 553 to 569 and 654 to 690, 5 that there was no obvious reasonably practical 6 alternative to locating the LVF in H6. 7 This is a point I will return to later, but unless 8 it can be shown that a risk assessment could and would 9 have led to a change in the location of the LVF, or 10 unless some other consequence of a risk assessment can 11 be identified, it simply cannot be said that a risk 12 assessment would have made any difference to the 13 outcome. 14 The POA's suggestion that it would have done is, as 15 I say, mere assertion for which no basis is given, and 16 in particular the POA do not identify reasonably 17 practicable steps that could have been taken which would 18 have had the effect of preventing the murder. 19 In any event, our submission is that there was 20 a risk assessment in relation to the location of the 21 LVF, and, not only was there a risk assessment, it was 22 a risk assessment that was carried out on an ongoing 23 basis at a very high level at which the relevant risks 24 were identified, remedial steps to manage that risk were 25 formulated, and the risks were continuously reviewed by 22 1 very senior, very experienced and very competent 2 employees of NIPS, particularly Steve Davis, for 3 example. 4 Just because there is not a document before the 5 Panel entitled "Risk Assessment" with a tick-box matrix 6 where the different levels of risk are marked off does 7 not mean that an assessment was not completed. The 8 regulations do not prescribe any degree of formality in 9 relation to risk assessments and do not in particular 10 require the assessment itself to be completed in 11 writing. 12 There are examples of cases where it has been 13 recognised that risk assessments have been conducted, 14 even though they are not reduced to writing. 15 An example, and we can provide it, if necessary, is 16 a case called Stevenson v Skinner in the Employment 17 Appeal Tribunal last year, decided on 6 March 2008, 18 reference UK EAT/0584/07. 19 As I say, our submission is that we did, in fact, 20 conduct a rigorous assessment of the risks. We did not 21 do so from the one-dimensional point of view of the POA, 22 who, as is clear from their submissions, are concerned 23 only with members of the union and their safety; we did 24 so by having regard to all of the risks in the round. 25 Those included the risks to Billy Wright, the risks to 23 1 staff, the risks to prisoners and the risks to the 2 public. We didn't do so at any isolated point of view. 3 It was a continuous assessment that was reviewed 4 throughout the period of Mr Billy Wright's custody. 5 It was not undertaken by a junior employee, it was 6 undertaken by a large number of senior officials who had 7 very considerable operational experience and who 8 included, ultimately, the Minister and the 9 Chief Executive. 10 The detailed consideration over several weeks, which 11 resulted in the decision to move Billy Wright to the 12 Maze, and for which the Inquiry has a wealth of 13 documentation showing the decision-making process, 14 involved a very anxious balancing of all the different 15 risks that were involved. The risks were specifically 16 identified, recorded and debated amongst the senior 17 officials. They included the risk to Billy Wright 18 himself, including the humanitarian risk of long-term 19 solitary confinement, the risks from normal prisoners 20 being on normal location in Maghaberry, the risk to 21 prison staff, which led to Sir John Wheeler suspending 22 the decision to transfer, and the risks that would 23 result from the LVF gaining greater status. 24 It was recognised that placing the LVF in H6 25 involved a risk from the INLA. That risk was identified 24 1 well before the transfer took place. That's precisely 2 why work was done in constructing separate visits 3 accommodation before Billy Wright was transferred to the 4 Maze. If it had not been thought that there was any 5 risk, there would be no reason to carry out that work. 6 There was not a single witness who worked at the 7 Maze at the time who was not acutely aware of the risks. 8 They were all too willing to tell the Panel what they 9 thought of the decision to keep the INLA and the LVF in 10 the same block, and that's because they were well aware 11 of the risks. It was a risk that was well-recognised at 12 the time and it was a risk that was addressed. 13 Mr Duffy himself says that a risk assessment was 14 carried out, at least in relation to visits -- that's 15 Day 70, page 64, line 3, and WS051-0019 -- and that this 16 was done before the move took place. 17 A number of very specific precautionary measures 18 were taken. These are addressed at paragraph 647 of our 19 submissions and they included a prohibition on 20 individuals from opposing factions being within the 21 circle at the same time. They included provision of 22 separate visits lists, separate visits areas, separate 23 visits transport, separate visits vans for prisoners and 24 a rule that prisoner vans were allowed to enter the 25 forecourt in H6 in contradistinction to the position in 25 1 other blocks. We give the references in our 2 submissions. 3 It is important not to overlook the extent to which 4 these measures were successful. There were large 5 numbers of prisoner movements through the circle for 6 visits and other matters, but there were hardly any 7 occasions when prisoners from opposing factions came 8 into contact. When this did happen, it was properly 9 recorded and appropriate action was taken. We give 10 examples in our submissions. 11 The very fact that these incidents were documented, 12 matters which would in other contexts be extremely 13 minor, such as food going to the wrong prisoners, shows 14 just how careful staff were to manage the risks. 15 In addition, alternatives to locating LVF and INLA 16 in the same block were continually reassessed and the 17 temperature in the block on the ground was monitored. 18 For examples of this in October 1997, we simply refer 19 the Panel to the note of the lengthy meeting between 20 Steve Davis and the INLA on the subject of the return of 21 the LVF at NP22-0491, Steve Davis' SCS of 6th October at 22 NP13-0159 and the response to the INLA petition at 23 NP22-0511. In addition, the PIU report of their visit 24 to the Maze on 6th November at NP40-0051, particularly 25 NP40-0052. 26 1 So we entirely reject the assertions of the POA and 2 the family that there was no assessment of risk and we 3 entirely reject the assertion that an assessment of risk 4 on their terms would have resulted in the saving of 5 Billy Wright's life. 6 I turn next to the topic of admissions that we deal 7 with at paragraph 4 of our submissions, (iii) to (xi). 8 I have already touched on the question of fences. 9 The first point we make is that the information at 10 document SS01-0218 was not at any stage taken into 11 account by the prison authorities. That document was 12 aptly described by Seamus McNeill as a shock document 13 and far more recently was described by Sir Geoffrey as 14 the Inquiry's most popular document. The information in 15 that document is one of the most startling discoveries 16 made by the Inquiry. This is, I think, at page 3 of our 17 submissions, paragraph 4(iii). 18 As I say, one of the most startling discoveries made 19 by the Inquiry that, at the very time a decision was 20 being taken at ministerial level as to Mr Wright's 21 location, information was available to the State which 22 was highly pertinent to that decision and yet was not 23 taken into account. 24 The Minister himself said, when he was shown the 25 document, that he was reading it with some astonishment. 27 1 Day 45, page 92, line 5. That was a reaction that was, 2 we submit, shared by others. The Panel may take the 3 view that the visible reaction of more than one witness 4 to the revelation of the document is quite telling. 5 On any view, it was a failing of the State that this 6 information was not ever taken into account. The 7 Inquiry may well wish to consider in detail how this 8 failing occurred. It is not a matter on which we make 9 detailed submissions. All we say is that, on the 10 evidence, it is very clear that neither the Minister nor 11 any NIPS officials were aware of the information. 12 I don't think that anyone suggests that NIPS was aware 13 of the information, and it is only PSNI who suggest that 14 the Minister might have been aware. 15 In response to that submission, large numbers of 16 stilts spring to mind. I responded to it on Monday for 17 the Ministers. The only matter I would add is, if the 18 Minister had known at the time, on his unchallenged 19 evidence he would have raised it with Alan Shannon and 20 would have required convincing that Billy Wright could 21 be protected. We know he didn't raise it with 22 Alan Shannon at the time, and it therefore follows that 23 he wasn't aware of the information. 24 The position of the Security Service was very 25 helpfully clarified on Monday, Day 154, page 49, line 2. 28 1 They are not suggesting that the Minister was aware of 2 the information. They positively and rightly say that 3 there is no evidence that the Minister was aware, but 4 they simply suggest caution before reaching a conclusion 5 with absolute certainty. Far fewer stilts are involved 6 in that submission, but in any event, although we submit 7 the Panel can be reasonably certain about the correct 8 resolution of the issue, the Panel has already said that 9 it will decide disputed issues of fact on the balance of 10 probabilities. See paragraph 69 of our written 11 submissions. 12 The Inquiry may well wish to consider in detail what 13 is likely to have happened if the information had been 14 communicated to the Minister and had been taken into 15 account. There is not an easy answer to this question. 16 It inevitably involves a degree of very careful 17 assessment of such evidence as you have. 18 We certainly do not submit that, faced with this 19 information, it can be said with certainty that 20 a different decision would have been made or that 21 a particular different decision would have been made. 22 None of the witnesses suggested that. In our 23 submission, each of the witnesses, and in particular 24 Sir John Wheeler, Seamus McNeill and Alan Shannon, gave 25 very credible and considered responses to the question 29 1 of what is likely to have happened if that information 2 had been available. We summarise those responses and 3 offer some analysis at paragraphs 590-600 of our 4 submissions. Ultimately, we have sought to provide such 5 assistance as we feel able to, though we stop short of 6 offering a definitive answer to the question what 7 difference knowledge of the information would have made. 8 We are content to leave that to the Panel with the 9 limited information we have provided. 10 The second failing we acknowledge is that the 11 assertion made by the IRSP on 29 April 1997 to 12 Duncan McLaughlan that the gun used in the hostage 13 incident had been smuggled into the prison to kill 14 Billy Wright was not taken into account when making 15 subsequent operational decisions. 16 Again, that's a startling discovery revealed by the 17 Inquiry process that has emerged in the course of the 18 Inquiry and has been discovered as a result of some 19 quite dogged investigatory work by the Inquiry's 20 investigators. 21 We now know that at the very time a Security 22 Governor had been tasked to determine how guns had been 23 brought into the prison, the Governor of the prison was 24 having a conversation with those who may well have been 25 in a position to know. On this occasion, the failure to 30 1 take account of the information is the responsibility of 2 my client, NIPS, because NIPS is the employer, must be 3 the employer, of the person or persons who knew the 4 information and did not properly record it. 5 In our submission, in the absence of any bad faith, 6 it is not necessary to consider individual as opposed to 7 corporate responsibility, but if it is necessary to 8 consider individual responsibility, then it is clear 9 that Duncan McLaughlan knew the information. 10 On the evidence, we submit that it cannot be found 11 that anyone else within NIPS was aware of the 12 information. So our submission is that the only 13 individual person who has responsibility in relation to 14 this issue, if it is necessary to look at individual 15 responsibility, is Duncan McLaughlan, and the Panel 16 should reject his assertion, which is unsupported by any 17 evidence, not even his own recollection, that he told 18 Martin Mogg. We rely on the submissions we make in 19 paragraphs 416-418. 20 Mr McQuitty, speaking on Mr McLaughlan's behalf, 21 does not suggest Mr McLaughlan has any recollection of 22 telling Mr Mogg or that there is any positive evidence 23 that he did so. He points to Mr Shannon's evidence that 24 he, Mr Shannon, was aware from Mr Mogg of rumours that 25 Billy Wright may have been the intended target, and it 31 1 is said in submissions that this shows that 2 Mr McLaughlan told Mr Mogg, but that's pure speculation 3 and it is highly unlikely, in our submission, to be 4 accurate, because if Mr McLaughlan had told Mr Mogg, 5 Mr Mogg would have had no reason to present the 6 information to Mr Shannon as rumour as opposed to being 7 based on information that had come directly from the 8 IRSP. 9 It will be for the Inquiry to consider whether the 10 failure to have regard to this information made any 11 ultimate difference. Our submission is that it may well 12 not have done for the reasons we give in chapter 11 of 13 our submissions, but we accept that there is scope for 14 a different view. 15 The third failure we acknowledge is that the report 16 of the hostage incident at Maghaberry, although prepared 17 in a timely manner, was not timeously provided to NIPS' 18 Headquarters. This, again, is wholly the responsibility 19 of NIPS. It is very much a process or a system failing 20 and it is difficult to see that there is any benefit in 21 identifying individuals, given that there is no evidence 22 and no realistic possibility of any bad faith. 23 If it is necessary to identify an individual who 24 should be criticised for this, then it is our submission 25 that nobody within Headquarters were to blame. 32 1 Appropriate letters were sent seeking a report and it is 2 difficult to see what else could or should have been 3 done. 4 The consequence of this failure is that there was 5 a long delay in senior staff being aware of Steve Davis' 6 very helpful and detailed intelligence analysis, but in 7 isolation we suggest it is unlikely this had any real 8 difference to events. The real question perhaps is 9 whether, in combination with the failure to ensure that 10 Steve Davis was aware of what was said to 11 Duncan McLaughlan, the delay of the provision of the 12 report might have had some impact. That's another 13 difficult question of assessment for the Panel. 14 If we have WS051-0079, please, the fourth failing is 15 that the fences in the yards at Maze were not checked. 16 That's a matter I have already made submissions on. 17 There is no good reason for the fact they were not being 18 checked. We do not suggest that legitimate financial 19 considerations or concerns about the wider impact on the 20 community justified the failure to check fences. They 21 plainly didn't. There was simply no financial or 22 political issue. 23 So although we make a number of points about 24 resources and wider impact on the community in respect 25 of other matters, it is not something that we pray in 33 1 aid on this issue. 2 The reason why fences were not checked was that the 3 POA had directed staff to disobey Governor's orders. 4 There can be no doubt about that. The POA say Mr Duffy 5 was acting in good faith and that he was genuinely 6 concerned. Our response to that is there is similarly 7 no suggestion that Maze management were not acting in 8 good faith. If good faith is the test, and on our 9 interpretation of the terms of reference it is the right 10 test, then there is no basis for criticising any other 11 NIPS' employee, but we acknowledge that not checking the 12 fence was a significant failing and it is something for 13 which NIPS was responsible. All we say is as a matter 14 of fact the reason why staff stopped checking the fences 15 is because they were directed to do so by Mr Duffy. 16 There are two subsidiary matters that may fall for 17 consideration. They are, firstly, why the matter was 18 not resolved before the time of the murder and, 19 secondly, whether the failure to check fences 20 facilitated the murder. 21 The reason the matter was not resolved was two-fold. 22 The primary reason was that the POA did not at any stage 23 withdraw its directive to staff to disobey the 24 Governor's instruction, so there was continuing POA 25 disobedience. The secondary reason is that the failure 34 1 to agree process was not properly dealt with. The 2 process is set out at WS051-0098, and in particular 3 pages WS051-0100 to WS051-0101. As Mr O'Donoghue 4 accurately said on Monday in response to questions from 5 Professor Coyle, 21 days were allowed for the failure to 6 agree to be resolved at a local level. After that 7 period, it should have been referred by the local branch 8 committee of the POA to Finlay Spratt, and it should 9 have been referred by the Governor of Maze to the 10 Director of Operations. 11 So there were dual obligations to refer the matter 12 up. Both management and the POA should have done so. 13 The failure to escalate the matter was, therefore, the 14 responsibility of both sides, the Maze POA and the Maze 15 management. Mr Duffy, to his credit, fairly recognised 16 that the POA had a responsibility to escalate the 17 failure to agree and Mr O'Donoghue again fairly accepted 18 that point in his submissions and in answer to 19 Professor Coyle. We, for our part, similarly recognise 20 that there was a failure on the part of Maze management. 21 As to whether the failure to check the fences 22 facilitated the murder, we submit that it probably did 23 not. Sir Richard Tilt found that it probably did not, 24 and he was right, in our submission, to do so. The 25 availability of firearms and the close proximity of 35 1 Billy Wright to the INLA were the significant features 2 which made the murder possible. 3 Given those two factors, it is highly likely that 4 INLA would have been able to carry out the murder, even 5 if there had been better security on issues such as 6 fences or roofs. They could, for example, have cut 7 through the fence in the period between checks, or they 8 could have climbed over the fence, or they could have 9 fired their shots through the window or across the 10 circle. 11 The fifth failing we acknowledge is that the 12 Minister was not provided with a report of the ICRC 13 findings as quickly as should have been the case. 14 That's a matter that I covered in submissions on Monday 15 and I shall return to it briefly in a few moments. 16 The sixth failing is rooftop security. We submit 17 that the approach to rooftop security up until autumn of 18 1997 was adequate and we don't understand 19 Sir Richard Tilt to take a different view, but the LVF 20 riot demonstrated the vulnerability of the roofs and the 21 need for further consideration to be given to remedial 22 steps. Steve Davis came up with a proposal and that was 23 rejected by Martin Mogg in November, and no further 24 consideration was given to the issue until after the 25 murder. 36 1 I don't need the document on the screen anymore. 2 Thank you. 3 In respect of this issue, it is easy to parody 4 Mr Mogg's decision to divert funds away from security to 5 what might be less compelling needs and it is all too 6 easy to conclude that Mr Mogg's reasons for rejecting 7 the proposals were not genuine and that he was not being 8 straightforward when giving his reasons for rejecting 9 the proposal, but as a matter of fairness, we invite the 10 Panel not to reach such easy conclusions without very 11 great care. 12 We asked many witnesses whether there might have 13 been something in Mr Mogg's rejection of Mr Davis' 14 proposal and with many witnesses we did not get very far 15 with that line of questioning but we did receive 16 compelling support from an unlikely source, namely 17 Sir Richard Tilt. 18 In particular, Sir Richard considered that 19 a particular form of double-skinning that had been 20 proposed by Stephen Davis would not have produced 21 a significant security improvement. 22 Because it emerged in the evidence of 23 Sir Richard Tilt that Martin Mogg might have had good 24 reasons for rejecting Steve Davis' proposals and unless 25 this possibility can be dismissed, we submit the 37 1 conclusions adverse to Mr Mogg's interests should not be 2 reached. We deal with that at paragraphs 1402-1403 of 3 our submissions. So we do not accept that any criticism 4 of Mr Mogg is necessarily justified for this particular 5 decision or for the failure to take any specific steps 6 in respect of rooftop security up to mid-November of 7 1997. 8 However, even if the rejection of the Steve Davis 9 proposal is capable of being justified, we do accept 10 that the Governor should have given further 11 consideration to the question of rooftop security, given 12 the LVF riot, given the background of earlier rooftop 13 incursions, given what the ICRC had so recently said, 14 and given the particular situation that existed in H6. 15 If and to the extent there was no further 16 consideration, then we accept that that is a possible 17 failing for which NIPS is responsible, but I put it in 18 those terms, because the Panel is not bound to conclude 19 that there was no further consideration. Certainly 20 there is no record of any further consideration and 21 there is no evidence of any further consideration, but 22 it is at least possible, and it is for the Panel to 23 determine, if necessary, whether it is probable, that 24 Mr Mogg would have given further consideration to the 25 issue without documenting the point. 38 1 The Panel has heard consistent and, we suggest, 2 compelling evidence about Mr Mogg's many merits, but it 3 is also acknowledged that paperwork was not his best 4 strength. Put shortly, he was not a Seamus McNeill. 5 Mr McNeill would undoubtedly have committed his thought 6 processes to paper. Mr Mogg would not necessarily have 7 done so. 8 In any event, it is unlikely that this would have 9 made a difference. First, it was shortly before the 10 murder that this came to a head in November 1997, and 11 even if further steps had been implemented, it is 12 a matter of speculation whether they would have been in 13 place by the time of the murder. 14 Secondly, as Sir Richard Tilt rightly observes, even 15 if there had been better rooftop security, this is 16 unlikely to have prevented the murder, for the same 17 reasons as I gave in relation to fences. 18 An additional failing on NIPS' part which obviously 19 did not have any impact on the murder of Billy Wright, 20 but which has had a significant impact on the Inquiry, 21 is the destruction of documentation. We deal with that 22 in detail in our submissions at paragraphs 172-254. 23 As we say at paragraph 231 of our submissions, NIPS 24 apologises unreservedly to the Inquiry and to the Wright 25 family for the destruction of documentation. It should 39 1 not have happened, and we recognise that it has caused 2 significant additional expense, delay and frustration, 3 but it certainly did not facilitate the murder of 4 Billy Wright, and once the conspiracy allegation is 5 rejected, as we submit it must be, it has no continuing 6 relevance to the terms of reference. The failure is 7 a corporate failing of NIPS, and the Panel, of course, 8 is entitled to say whatever it wishes to in its report, 9 but in our submission it is neither necessary nor 10 appropriate to criticise named individuals. 11 Mr Beer has given cogent reasons why his clients 12 should not be criticised, and we agree with him. It has 13 rightly not been suggested that any of my individual 14 clients should be criticised, nor has it been suggested, 15 as we understand it, that Mr Mogg should be criticised. 16 It was a system failure and something for which NIPS 17 corporately takes responsibility and apologises. 18 There's a number of things that we would wish to say 19 in relation to some of the detailed points that the 20 family make on document destruction and document 21 recovery. They are detailed points. If I was to 22 rehearse them orally, it would be a cruel and unusual 23 punishment for anyone who had to listen. What I propose 24 to do, if it is acceptable, is simply hand up a note 25 which deals with the points, perhaps at the lunch 40 1 adjournment. 2 The next topic is the conspiracy allegation. That 3 is dealt with fully in our written document and in the 4 light of the submissions of the other parties there is 5 very little we need to add to it. We respectfully 6 agree, as I say, with the submissions of the CSO, 7 Security Service and the PSNI on the conspiracy 8 allegation. We also agree with the written and oral 9 argument of Mr Coll for Nigel Jopling and William McCrum 10 and we respectfully take issue with the written and oral 11 submissions that have been advanced on behalf of 12 Mr Lewis. 13 Mr Lewis' reliance on the fact that he was 14 interviewed by the Inquiry team and that his evidence 15 followed from these interviews is no answer at all for 16 the numerous, very unsatisfactory features in his 17 evidence. The vast majority of witnesses were 18 interviewed by the Inquiry team in precisely the same 19 way. There is no unfairness at all in the approach the 20 Inquiry has taken in this respect. 21 In addition, unlike the vast majority of the 22 witnesses, it was Mr Lewis who approached the Inquiry 23 positively seeking to volunteer evidence rather than the 24 approach being made by the Inquiry. 25 Neither the Inquiry nor NIPS could, or should, have 41 1 anticipated that Mr Lewis might have further 2 documentation to support his account. If he really did 3 have a diary that supported his account, it was for him 4 to volunteer it to the Inquiry, not for the Inquiry's 5 investigators to divine its existence. 6 Mr Lewis plainly felt able to make his very serious 7 allegations without access to the diary he says exists. 8 It is only when his account began to fall apart that he 9 first made reference to the diary. The submissions that 10 have been advanced on his behalf that this is all the 11 fault of the Inquiry for the manner in which he was 12 interviewed and all the fault of NIPS for deliberately 13 destroying evidence and the reliance on equitable 14 principles that I think used to be known as 15 ex turpi causa -- with apologies to the shorthand 16 writer -- and the apparent reliance on equitable 17 doctrines that apparently apply in America do not, in 18 our submission, assist the Panel. 19 The fact of the matter is that Mr Lewis' evidence is 20 not reliable and the unreliability is not answered by 21 his late reference to a diary and a locker. The 22 suggestion that a comprehensive answer would be 23 available for Mr Lewis if only we had not caused his 24 locker to do a vanishing act is not tenable. The 25 inconsistencies and divergences from known fact and the 42 1 otherwise very unsatisfactory features in his evidence 2 go far beyond anything that could be rectified by 3 reference to a personal diary. 4 Just by way of one example, Mr Lewis' repeated 5 refusal to provide relevant information to the Inquiry, 6 which we itemise at paragraph 145 of our submissions, is 7 not answered by the absence of a diary. It was not 8 Mr Lewis' case that he could not recall the information 9 and needed his diary to provide it. Rather, it was his 10 case that he had the information but he declined to 11 provide it. 12 In the event, the locker in quo has been fully 13 investigated and a detailed report provided to the 14 Inquiry. There is simply no evidence it ever existed. 15 As to Mr Lewis' suggestion that we sought to portray him 16 as a Walter Mitty character, we observe that it is his 17 own representatives, not us, that make repeated 18 references to Walter Mitty, and it was the PSNI, not us, 19 who asked whether Mr Lewis' questions were based on 20 fantasy rather than speculation. Day 100, page 151, 21 line 24. Though in fairness to Mr Brangam, the question 22 was entirely reasonable, given the answers Mr Lewis was 23 giving. 24 All we sought to do was fairly test his evidence and 25 we did so solely by reference to the evidence that 43 1 Mr Lewis gave to the Inquiry. We have not sought to 2 rely on extraneous matters or on anything from the 3 circumstances that led to his dismissal from the 4 Prison Service or anything that arose during his history 5 within the Prison Service. 6 Mr Lewis raised the fairness of his dismissal in 7 oral submissions. That's not, with respect, a matter 8 for the Panel. It is not a matter on which it has heard 9 evidence and not a matter on which it would be 10 appropriate to make findings. The important and 11 relevant fact is, whatever the rights and wrongs, 12 Mr Lewis plainly has a burning sense of grievance at the 13 way he feels he was treated by NIPS. So if the Panel 14 considers it necessary to examine whether Mr Lewis would 15 have a motive for giving false evidence adverse to the 16 interests of NIPS, such a motive is readily apparent. 17 The next matter I address is the response to 18 suggested areas of criticism in the submissions of other 19 parties, particularly the family. 20 Our response to the suggested areas of criticism 21 from Counsel to the Inquiry is dealt with in chapter 8 22 of our submissions. Aside from the whole question of 23 health and safety in the POA submissions and aside from 24 Mr Kane's submissions for the family, we have not 25 identified any other criticisms in any of the other 44 1 submissions of the various parties. The family do, 2 however, raise a number of specific criticisms that were 3 not the subject of any Salmon notice and which were not 4 raised by Counsel to the Inquiry. Again, though, we 5 don't rely solely on process points. 6 The first we address is understating security 7 breaches. The family submissions contain a theme that 8 NIPS understated breaches of security and was in denial 9 about the true state of affairs at Maze. I paraphrase, 10 but I think it captures the essential complaint. Issue 11 is taken with the use of language by NIPS in a number of 12 respects. A good example is at CS19-0074, lines 1 to 4, 13 where it is said that an act of concerted discipline is 14 a euphemism more appropriately used with rowdy 15 schoolboys than rioting terrorists. 16 Mr Kane, we respectfully submit, is simply wrong in 17 this respect, however colourful the language in which it 18 is expressed. 19 With respect, it is the language and conclusion 20 that's objectionable, not the language that was used by 21 Mr Mogg. In using the terminology "concerted 22 indiscipline", Mr Mogg was using a prison's term of art 23 which is deployed, for example, in the 24 Ramsbotham Report, the Woodcock Inquiry, the Maze 25 Establishment contract and the framework agreement that 45 1 established NIPS as a Next Steps Agency. 2 That document required reports on serious incidents 3 involving mass indiscipline to be forwarded to the 4 Minister. See -- and we don't need to bring it up -- 5 WS291-0040 at paragraph (iii). Mr Mogg was using the 6 right language and the seriousness of the incident was 7 clear to all informed readers of his report. 8 Indeed, the very fact that he was reporting it to 9 the Minister demonstrates its seriousness. If we were 10 to respond to every use by the Wright family of what 11 Sir Geoffrey called extravagant language in their 12 submissions, we would need more than two and a half 13 hours. We simply give this as one example of where it 14 is misplaced and the fact we don't respond to every 15 other example should not be taken in any way as 16 acquiescence in the language that has been used. 17 I turn to CS19-0110, lines 12 to 17. It is said 18 that the delay in providing the ICRC report to the 19 Minister was a failing and that NIPS should be 20 criticised. I briefly touched on this a moment ago. 21 As I said, we accept that this was a failing. We 22 accept that it should have been provided more quickly. 23 Although this has not been the subject of a Salmon 24 letter, there is nothing further we can say, so we do 25 not seek an opportunity to address further evidence or 46 1 submissions and we don't take any process point. 2 We simply accept that it would be open to the 3 Inquiry to pass criticism of NIPS if it considers it 4 appropriate or necessary to do so in order to fulfil its 5 terms of reference, but we do make two observations. 6 The first is that we respectfully agree that the 7 criticism should be of NIPS rather than any particular 8 individual. There has been no investigation of 9 precisely who had responsibility for putting the 10 document in the post to the Minister and such 11 an investigation is not necessary. It was very much 12 a corporate or system failing. 13 The second point is that nobody has suggested it 14 would, in fact, have made any difference if the Minister 15 had been informed. The family very fairly draw 16 attention at CS19-0110, lines 15 to 17, to evidence that 17 it would not, in fact, have made a difference. We agree 18 for the reasons given at paragraphs 1272-1279 of our 19 submissions. 20 Without in any way going back on our admission that 21 the report should have been provided earlier, and 22 without in any way casting any of the blame for that on 23 the Minister's officials, the fact that the report was 24 not chased does suggest that the interim visit of the 25 ICRC was perhaps not seen at the time as quite as 47 1 significant as hindsight may lead one to believe it was. 2 The next point is the general INLA threat, which is 3 referred to in the family's submissions at 4 page CS19-0067, lines 18 to 29. 5 It is suggested that Alan Shannon should have 6 checked that the Maze knew of the threat -- this was the 7 general threat referred to in newspaper articles. The 8 suggestion that Mr Shannon should have checked that the 9 Maze knew what was in the newspapers is, in our 10 submission, unrealistic. There is no basis for the 11 suggestion it is part of the role of the chief executive 12 of a Prison Service to phone up a Governor I every time 13 information relating to that Governor's prison is 14 contained in the newspaper. 15 Similarly, at CS19-0108, lines 16-26, it is said 16 that NIPS should have passed threats to the police. 17 I dealt with that in oral submissions from Ministers, 18 Day 153, page 16, line 23. It is similarly, in our 19 submission, completely unrealistic. 20 The next point is a point made at CS19-0071, 21 lines 12-16, where reference is made to a lack of 22 confidence in Mr Shannon and Mr Mogg, I think here 23 Mr Shannon. 24 We say in response that Mr Shannon had the complete 25 confidence of Ministers. Sir John Wheeler volunteered 48 1 that he was a man of the highest integrity who worked 2 for the best interests of the public. Day 45, page 120, 3 line 18. 4 Adam Ingram observed that he was a consummate 5 professional in trying to manage an extremely difficult 6 set of circumstances. Day 81, page 166, line 22. 7 The Panel, rightly in our submission, observed he 8 was a very impressive witness during a marathon session 9 of giving evidence and that he gave his evidence with 10 patience and dignity. Day 120, page 172, line 6. 11 The suggestion of a loss of confidence is addressed 12 by Martin Narey in his report at NP01-0050 and 13 NP01-0051. In paragraph 7.11 of the report Mr Narey 14 says this: 15 "We have recorded a number of lapses in security at 16 the prison as well as the general apathy which pervades 17 it and we have recommended a large body of work for 18 taking forward improvements. But we do not consider the 19 current failings of the Maze can be put at the door of 20 any individuals. They are clearly the result of a slow 21 and long deterioration caused overwhelmingly by staff 22 fears of the consequences of managing paramilitary 23 prisoners exacerbated by an absence of effective middle 24 management. Nevertheless, we are quite sure that, 25 despite the escape of one prisoner and the death of 49 1 another, the Maze is a better run and more secure prison 2 now under Martin Mogg's management than it was a few 3 months ago. With the chief executive's support, he has, 4 for example ..." 5 Improvements are there set out. 6 In fairness, Mr Narey went on to say on the 7 following page that it was possible that Mr Shannon was 8 not as visible in the prisons as would be ideal. That 9 resonated with a complaint that Duncan McLaughlan had 10 also made in his diaries, but, in fact, the evidence of 11 Mr Shannon was that he was in the Maze, on average, once 12 a month and that was corroborated by Brian Barlow, who 13 accompanied Mr Shannon on some of his visits. 14 Faced with that evidence, Mr McLaughlan accepted 15 that there was a reasonable level of visibility. He was 16 right, in our submission, to do so, and Mr Narey himself 17 considered and recognised that Mr Shannon's 18 opportunities for visiting prisoners were very limited. 19 In any event, the suggestion of a lack of confidence 20 is a reflection of the very great difficulties in 21 managing prisons in Northern Ireland rather than any 22 failing whatsoever of Mr Shannon. If prison staff 23 complained, it would not be surprising to hear them 24 criticise management, but when their complaints are 25 properly analysed, they are complaints about a situation 50 1 which, in fact, had already changed. 2 I turn to a number of matters raised by Counsel to 3 the Inquiry in his questions. 4 THE CHAIRMAN: Do you want to make a break at some point? 5 MR JOHNSON: Certainly. 6 THE CHAIRMAN: It seems a convenient point. 7 MR JOHNSON: It is. 8 THE CHAIRMAN: Right. 11.30, please. 9 (11.15 am) 10 (A short break) 11 (11.30 am) 12 THE CHAIRMAN: Mr Johnson? 13 MR JOHNSON: Thank you, my Lord. My Lord, I was turning to 14 the suggested areas of potential criticism identified by 15 Leading Counsel to the Inquiry in his questions. First 16 was question 3.04 and was whether NIPS and Alan Shannon 17 should be subject to criticism in respect of the 18 decision to transfer Billy Wright to the Maze and to 19 accommodate him within H6. 20 Aside from the question of the risk assessment which 21 I have dealt with, no basis for such criticism has been 22 advanced in any of the submissions, and, in particular, 23 nobody has suggested an obviously better alternative. 24 In those circumstances, we don't add to the submissions 25 we make in writing on that question. 51 1 Question 3.18, it is asked whether Alan Shannon 2 should be criticised in respect of the authorisation of 3 contacts between Duncan McLaughlan and representatives 4 of paramilitary groups. Again, no basis for that 5 criticism has been advanced in any of the submissions. 6 The question can again, in our submission, be 7 disregarded. 8 In any event, it is dealt with at paragraphs 421-422 9 of NIPS' submissions and, more importantly, and in more 10 detail on this point, at paragraphs 35-38 of 11 Alan Shannon's submissions. 12 We do just mention one matter. In Mr McLaughlan's 13 submission he says at CS13-0002, lines 5-10 that 14 Mr Shannon alleges -- perhaps that can go on the screen, 15 please, CS13-0002, lines 5-10. It is the second 16 paragraph on the page. That's right. 17 It is said that: 18 "Mr Shannon alleges he has no recollection of 19 Mr McLaughlan seeking authorisation to speak to the 20 IRSP." 21 Strictly, that's accurate, but the innuendo that 22 attaches to the word "alleges" is unwarranted. We are 23 here concerned with a very brief oral telephone 24 conversation on a Sunday evening 12 years ago. There is 25 no basis for any suggestion or innuendo that Mr Shannon 52 1 is not being genuine when he says he does not recall the 2 authorisation. 3 Mr Shannon said in terms that he did not wish to 4 dispute Mr McLaughlan's assertion that he, Mr Shannon, 5 had agreed that Mr McLaughlan should see the IRSP. 6 That's all I need the screen for. Thank you. 7 The next question is 3.4 1, whether the evidence of 8 Alan Shannon about the terms of his briefing to the 9 Minister should be the subject of adverse comment and 10 whether Alan Shannon should be criticised for the terms 11 in which he briefed the Minister. 12 No basis for such criticism has been advanced in any 13 of the submissions, and the family, for their part, 14 positively assert that the Minister was aware of the 15 true position. The Minister received formal submissions 16 from NIPS, but he also saw the daily SitRep, the monthly 17 intelligence assessment and the minute of the monthly 18 intelligence minute. There is, in our submission, no 19 question of the Minister being misled and this question 20 can again be disregarded. 21 The next question is whether the evidence of 22 Witness Hayes about file destruction should be the 23 subject of adverse comment and whether Witness Bain 24 should be criticised for his failure to produce file 25 PI469/02 and for his proposal to read prisoner files of 53 1 "politically incorrect" comments. 2 No reason has been given in any submissions for 3 submitting Witness Hayes to adverse comment. We deal 4 with it in detail in our written submissions and that 5 part of the question may be disregarded or should be 6 answered in the negative. 7 As to document destruction, I have touched on this 8 already, and we have addressed the topic at 9 paragraphs 166-254 of our written submissions. The 10 topic was addressed in considerable detail by Mr Beer in 11 his oral submissions yesterday, starting at Day 154, 12 page 98, line 21. We adopt everything that he said. 13 The document destruction that took place is not now 14 relevant to the issues before the Inquiry, for the 15 reasons I gave earlier and developed at paragraphs 16 166-167 of our closing submissions. It should not, in 17 our submission, be allowed to deflect the Panel from its 18 important task on ruling finally on the matter 19 Billy Wright's death so that the myth of NIPS' 20 involvement in the murder can be fully, firmly and 21 finally dispelled. 22 But we do respond briefly to two arguments advanced 23 on behalf of the family in relation to Mr Bain. First, 24 in relation to an e-mail that was copied to Bain, can we 25 look, please, at CS19-0053, lines 5-18? 54 1 The position is that Mr Bain, in 2004, was, on the 2 face of it, a copy recipient of an e-mail which said 3 that documentation had been destroyed some time 4 previously. In evidence, Mr Bain said that he had not 5 been aware documents had been destroyed, but there is no 6 evidence that at the time the documents were being 7 destroyed Mr Bain knew that this was happening, and 8 there is compelling evidence from Mr Bain to the 9 contrary. 10 There is no evidence that the subsequent e-mail in 11 2004 was actually received by Mr Bain and no evidence 12 that he actually read it. Indeed, Mr Bain gave evidence 13 that he rarely used e-mails was not really 14 computer-literate. When giving his evidence in 2009, 15 five years after the e-mail, Mr Bain simply didn't 16 recall it. It is hardly surprising that this detail was 17 not recalled at that interval of time, even if Mr Bain 18 had seen or been aware of the e-mail at the time. He 19 had no motive whatsoever for giving false evidence and 20 no such motive has been suggested. 21 The reasons why it is suggested the criticism is 22 merited are set out at lines 14-18 on page 53. At 23 line 14 it is said that Mr Bain must be the subject of 24 criticism. On the same line, reference is made to the 25 initial conduct leading to destruction. There is no 55 1 basis whatsoever for blaming Mr Bain for this and none 2 has been suggested. It is then said: 3 "The ease with which a statement was made to this 4 Inquiry which, on a benevolent view, was inaccurate ..." 5 There is nothing, in our submission, sinister about 6 this as all. It is not surprising that Mr Bain did not 7 recall the e-mail, and in those circumstances, of 8 course, it is easy to make mistakes and to give evidence 9 that turns out not to be accurate. 10 No doubt the Inquiry has heard a great deal of 11 evidence which is based on witness' honest recollection 12 but which, in fact, turns out to be inaccurate. There 13 is nothing remotely unusual about that. It is very easy 14 to make mistakes on matters of detail that occurred so 15 many years ago. It is not at all a basis for criticism. 16 It is then said that there was "subsequent exposure 17 by the above e-mail". That is on one reading 18 misleading, because the e-mail had, in fact, been 19 disclosed to the Inquiry well before Mr Bain giving 20 evidence and there was no question of Mr Bain or NIPS 21 seeking deliberately to misstate the true position. 22 It is then said that "post-event collusive activity 23 by NIPS was clearly in operation". I am sorry, but with 24 great respect to leading counsel to the family, I simply 25 do not understand what is meant. Presumably post-event 56 1 means after the murder, but we do not understand what's 2 meant by "collusive activity". Who it is said are we 3 colluding with? What were we colluding to do? In fact, 4 for the reasons I have given, there is nothing sinister 5 about it at all. 6 We don't want to dwell on process points, and it may 7 be there is not much more we can say on this topic in 8 any event, but we do observe that Mr Bain has had no 9 warning of this suggested criticism and that, on the 10 contrary, Mr Kane made it very clear he was not 11 concerned about events in 2004 and 2005 but was rather 12 concerned with events in 2002. That was Day 152, 13 page 98, line 4. 14 I look now, please, at CS19-0055 of the family's 15 submissions at lines 1-20 and page CS19-0057, 16 lines 23-35. The second complaint that the family make 17 on this topic is that Mr Bain and Mr Masefield and NIPS 18 fall to be criticised in relation to the disclosure of 19 document destruction policies. This is largely dealt 20 with in Mr Bain's written submissions and those of NIPS 21 at paragraphs 244 onwards. We make five points shortly 22 now. 23 The first is that document destruction policy was 24 produced to the Inquiry on 25 January 2006. See 25 paragraph 248(v) of our written submissions. So it was 57 1 produced well before the substantive hearings took place 2 and well before Mr Bain gave evidence. 3 The second point is that the suggestion there is 4 a question over why the Director of the Prison Service 5 did not locate the file in question is fanciful. There 6 is no reason at all why the Director of the 7 Prison Service should have done so. The file had 8 already been located. Its existence had already been 9 notified to the Inquiry. Just because the Director had 10 a hands-on approach in relation to the setting-up of the 11 document recovery team does not mean that there is any 12 basis for the suggestion that he personally should have 13 located this particular file and delivered it to the 14 Inquiry. 15 The fact that the Director took a personal interest 16 is, we suggest, laudable, but it does not fix him with 17 a personal responsibility for every disclosure decision 18 that was made by a team who had been properly instructed 19 and properly resourced. In any event, as I say, the 20 file had been located, its existence had been notified 21 to the Inquiry and the important document had been 22 disclosed. 23 The third point is that there is similarly no basis 24 for suggesting that Mr Bain should be criticised. We 25 deal with this in detail in the written submissions, but 58 1 the short point is that he did not at any stage have any 2 responsibility whatsoever for the collation of documents 3 in response to the production notice and he was on sick 4 leave at the time the production notice was served. 5 There was no basis set out in the family's 6 submissions, or anywhere else, for any suggestion that 7 Mr Bain had a responsibility to produce this file to the 8 Inquiry. If it had been Mr Bain's responsibility, then 9 he has made it clear he would have readily provided the 10 documents in response to the notice. 11 The fourth point is that, although it is said that 12 the file should have been produced to the Inquiry, 13 nobody has yet identified which document in the file 14 came within the ambit of the production notice. We have 15 made our position clear in correspondence at NP18-0090. 16 Although Mr Bain would have produced the documents and 17 although, in many instances -- in fact, in every 18 instance where consideration has been given to it, the 19 NIPS document recovery team have given the widest 20 possible interpretation to the production notice. 21 For the reasons we give in correspondence at 22 NP18-0090, we submit that no document in the file, apart 23 from the formal policy, which was disclosed, comes 24 within the ambit of the production notice. Nobody has 25 identified a flaw in that analysis. Of course we are 59 1 not infallible. Of course it is possible the Inquiry 2 will take the view that one or more documents in the 3 file that had not been disclosed did come within the 4 scope of the notice. If that's the case, then we 5 apologise, but unless someone identifies a particular 6 document and explains how it is they came within the 7 scope of the notice, then we are simply not able to 8 respond further. 9 So our submission is that, on a strict view, no 10 other document in the file came within the scope of the 11 notice and nobody has positively suggested otherwise, 12 but, if we are wrong about that, it was an individual 13 error of judgment by the person concerned, which was 14 reasonable for the reasons we give in correspondence and 15 it is not something that merits censure by the Inquiry 16 Panel. 17 At lines 5 to 9 on page CS19-0057 -- I think that's 18 the wrong reference. We don't need to get the precise 19 reference. Sorry. It is lines 5 to 9 on 20 page CS19-0055. I am grateful to Mr Greatorex. It is 21 suggested that our approach in not disclosing the 22 contents of this file shows that NIPS' view on relevance 23 was erroneous. In our submission, it does nothing of 24 the kind. NIPS did not, when producing documents, 25 undertake any kind of relevance sift. It has recognised 60 1 throughout it is not for NIPS to take a view on 2 relevance; that's entirely a matter for the Inquiry. 3 NIPS' obligation is provide all documentation sought 4 by the Inquiry without undertaking any further relevant 5 sift of its own. That's what we have sought to do. If 6 we have failed in that, then, as I say, we are very 7 sorry, but it is not because we have imposed 8 an irrelevant sift, it is simply because individuals 9 have taken the view that particular documents do not 10 fall within the scope of the production notice. 11 The next question, final question, is question 5.30 12 and I don't need the screen anymore. Thank you. 13 This is whether the failure to take additional 14 measures to protect H6 inmates, including Billy Wright, 15 from the risk of potentially fatal, inter-factional 16 violence by relocation or otherwise constituted 17 an omission that played a part in the death of 18 Billy Wright. If so, whether the omission was 19 intentional or otherwise, and whether there is any 20 reason not to identify individuals, including 21 Alan Shannon and the late Martin Mogg, as having 22 personal responsibility, and whether Witness Shannon and 23 NIPS should be criticised for failing to pay regard to 24 warnings, intelligence and concerns about the security 25 in H6 and for continuing with co-location in the face of 61 1 those warnings, intelligence and concerns. 2 This is dealt with in very considerable detail in 3 our written submissions at paragraphs 471-497. The 4 question is, for the reasons we give there, thoroughly 5 objectionable for a number of reasons. I don't develop 6 those now and I don't develop the substantive points 7 that I make. 8 We will in a moment address the questions of regard 9 to warnings. All we say at this stage is that the 10 responsibility for the murder was that of McWilliams, 11 Kenneway and Glennon and any who conspired with them. 12 Once a State conspiracy is ruled out, as we submit 13 it must be, it would, in our submission, be quite wrong 14 to identify public servants who were working for the 15 protection of prisoners, staff and the public as having 16 any responsibility for the murder. It would be doubly 17 wrong to single out Mr Shannon and Mr Mogg for criticism 18 for all the reasons we give in our submissions. The key 19 decisions that they made were supported, in fact, by all 20 members of Maze management and our submission is that, 21 in each instance, they were the right decision. 22 In any event, even if we are wrong about that, it 23 would, for the reasons we give in our submissions, and 24 for the same reasons as were given by Baroness Hale in 25 the E case that we refer to early on in our submissions, 62 1 be quite wrong to suggest that individual officials bore 2 any personal responsibility. 3 My Lord, I turn to what we suggest may be the key 4 issue, if it is necessary to go beyond the conspiracy 5 theory. 6 We submit that the key issue that arises under the 7 terms of reference, if it is necessary to go beyond the 8 conspiracy theory, is whether it was reasonable to put 9 the LVF in H6 and keep them there throughout 1997 apart 10 from the period immediately after the LVF riot. That 11 issue is explicitly recognised as an issue at issues 2 12 and 4 of the Inquiry's list of issues and it is 13 addressed in detail in chapters 10 and 12 of our written 14 submissions. 15 The reason why we submit this is the key issue is if 16 a broad approach is taken to the word "facilitate", then 17 just as the imprisonment of Billy Wright facilitated his 18 murder, so, too, did his location in H6. 19 If he had been incarcerated in a place which was 20 physically distant from the murderers, then, of course, 21 the murder would have been more difficult to perpetrate, 22 but once guns were available to the INLA, the physical 23 proximity of Billy Wright meant that the murder was 24 possible. Even if there had been better rooftop 25 security, even if there had been better fence security, 63 1 there were a number of mechanisms that could have been 2 adopted to commit the murder. They include, as 3 I submitted earlier, shooting across the circle and 4 shooting from an open window into the forecourt. 5 So it was the physical proximity and the 6 availability of firearms which were the critical factors 7 in the murder. The availability of firearms 8 demonstrates that there had been a breach of security, 9 but it does not demonstrate any failing on the part of 10 those responsible for security at Maze for the reasons 11 we give in chapter 6 of our submissions, particularly at 12 paragraphs 1347 and 1377. In particular, 13 Sir Richard Tilt does not suggest that the presence of 14 firearms in a prison in itself necessarily points to 15 a security failing. 16 So that leaves the question of the location of the 17 LVF in H6. NIPS has never suggested that putting the 18 LVF in the Maze and in H6 was ideal. It was fully 19 recognised at the time, and it has been recognised 20 throughout this Inquiry, that it gave rise to risk, and 21 it is recognised that that risk materialised. 22 Of course, by definition, risks do materialise from 23 time to time. Our point, both at the time and 24 throughout this Inquiry, is that there was no obviously 25 better alternative. We grow in the confidence with 64 1 which we make that point, because, despite the intensity 2 and rigorous scrutiny of operational decision-making 3 throughout 1997, nobody has come up with an obviously 4 better solution throughout this long-running Inquiry. 5 The POA do not give us a solution in their submissions 6 and the family do not give us a solution in their 7 submissions. 8 We have spent a great deal of our submissions 9 explaining precisely why every possible alternative was 10 not practicable. See in particular, paragraphs 544-569 11 and 654-693. No flaw in our analysis, which is based on 12 the evidence has been identified by anyone, not by the 13 family, not by the POA and not by anybody else. 14 In those circumstances, there is nothing more we can 15 say orally, save that the absence of any challenge in 16 itself strongly suggests that, even if some other option 17 may have been technically possible, the approach that 18 was adopted by Maze management was not unreasonable in 19 all the circumstances. 20 I will come in a moment to one possibility that the 21 family do briefly identify in their submissions, but 22 I turn first to control and security. That's addressed 23 at chapter 14 of our submissions. It is a matter for 24 the Panel to decide the extent to which it is necessary 25 to address control and security once the security 65 1 allegation has been rejected. 2 I respectfully repeat the submission I made at the 3 outset about the undesirability of carrying out a review 4 of control and security for its own sake. 5 In assessing control and security, the Inquiry has 6 naturally focused on issues pertaining to the security 7 and safety of Billy Wright and H6. Although that's 8 naturally and understandably been the focus of the 9 Inquiry, the Panel will appreciate that to the 10 management of Maze at the time, without the benefit of 11 hindsight, the safety of Billy Wright and H6 were 12 important, but not dominant, considerations. PIRA had 13 attempted a mass break-out in March and effected 14 a successful escape in November. The UVF and UDA were 15 truculent and restless, so much so that the UDP had 16 persuaded the Secretary of State to visit the Maze, in 17 an unprecedented gesture in January, to reassure them 18 and settle them down. 19 All of this was hugely threatening from not only 20 a security point of view, but to the peace process 21 itself. If the Inquiry Panel is tempted to substitute 22 its judgment for that of the authorities of the day, 23 a process which we respectfully submit is fraught with 24 difficulty, the Inquiry would need to be table to take 25 perhaps a broader perspective than the weight of the 66 1 evidence it has heard will bear. 2 It is easy to make criticisms of security and 3 control at Maze, and I will respond to those criticisms 4 in a moment, but before I do, we do emphasise that 5 control and security is not an end in its own right. It 6 is a means to prevent matters such as escapes and 7 assault. 8 As we said in our written submissions and as we 9 developed during the course of the Inquiry, the security 10 record of the Maze over the years in terms of escapes, 11 in terms of violence between prisoners, in terms of 12 suicides, and even in terms of rooftop incidents, 13 actually compares extremely well with the position in 14 English prisons. 15 Nevertheless, the Inquiry has identified areas in 16 which desirable standards were not achieved, for 17 example, in relation to searches, fabric checks and 18 headcount, but we submit the Inquiry has highlighted 19 these rather than revealed these findings, because, of 20 course, this information is very largely not enough. 21 A quick comparison of the reports by Hennessy in 1983 22 and Narey in 1998 shows that many of these remained 23 constant. 24 So it is very easy to provide a litany of suggested 25 security deficits, as the family do at page WS19-0067, 67 1 line 35 to page WS19-0068, line 7, under the heading 2 "Prevailing Security and Control Deficits". 3 However, instead of proclaiming the problems as if 4 they were new discoveries that merit personal criticism 5 of those who were responsible for security at Maze, we 6 submit that the Inquiry may best serve the people of 7 Northern Ireland by grappling with the question of why 8 matters were as they were. 9 The blanket accusation of incompetence and indolence 10 which is made against everybody involved is firstly an 11 a lazy solution and, secondly, is unfair to those who 12 were on the ground in 1997 without any regard to the 13 history that had remained pretty constant since 1983. 14 Thirdly, it is not borne out by the evidence. 15 We do not dissent from the proposition that the 16 situation in Maze was in some respects startling. 17 However, it is our case that in the course of its 18 investigation into the conduct of individual managers, 19 the Inquiry has uncovered a very high degree of 20 dedication and no lack of ability on the part of the 21 brave men and women who went into work each day for 22 a service that has lost 29 dead and suffered countless 23 other attacks inside and outside the prisons. 24 The Inquiry should also start with the context for 25 1997, which included 24-hour unlock and withdrawal from 68 1 wings. By 1997, those two facts were a given and they 2 provided the context. Witnesses such as Mr Shannon, 3 have sought to assist the Inquiry by giving evidence as 4 to how these matters came about, but they have not been 5 fully investigated and they are not genuine issues for 6 determination by the Inquiry. They are, in our 7 submission, matters of context. 8 The stark fact, we submit, is that successive 9 officers, Governors, Directors of Operations and Chief 10 Executives strove over many years to improve the Maze. 11 We invite the Panel to find that in the overwhelming 12 majority of cases, the evidence shows that those with 13 responsibility were not only doing their very best, but, 14 in fact, were doing everything that could be done in the 15 very particular and very difficult circumstances. 16 That's all I need the screen for. 17 What evidence, then, is there of staff doing their 18 best? Some of the examples can be found in Mr Kane's 19 submissions as evidence of the problems. Most notably 20 are the reports provided by Steve Davis in his capacity 21 as Security Governor. Those documents demonstrate that 22 those who were in a position of responsibility were not 23 willing just to let the situation drift. 24 What of Mr Mogg? The most important fact about 25 Mr Mogg is that he was appointed as Governor I of Maze. 69 1 That appointment was an extreme measure, diverting part 2 of his time from his duties as Director of Operations 3 and giving Maze a Governor I who wasn't absolutely 4 full-time. The appointment shows Mr Shannon doing what 5 he had to do for Maze by putting his very best man in 6 charge of the prison. That's the most cogent piece of 7 evidence of the Maze situation being treated as 8 an absolute priority. 9 We submit that the period between Mr Mogg's 10 appointment and the murder is too short to allow a fair 11 evaluation of what was achieved in the prison in that 12 time. We are also mindful that Mr Mogg is not here to 13 defend his own reputation. 14 He came in part way through the efforts to implement 15 the Steele recommendations and at a time when there was 16 already deadlock in relation to searching. Of course, 17 the fence issue was already in play. The Inquiry 18 should, we submit, be very cautious before concluding 19 that Mr Mogg could, let alone should, have achieved more 20 in the short time between his appointment and the murder 21 taking place. 22 In the end, it is all very well to state that, for 23 example, there should have been more searching. No 24 doubt there should have been, but the type of finding 25 that may help the people of Northern Ireland to 70 1 understand why a prisoner was murdered inside a high 2 security prison include the finding that more searching 3 did not occur because, every time an attempt was made to 4 intensify the regime, it was liable to be met with 5 violence. 6 Any life that was saved by dint of a better search 7 might well in the end have been saved at the cost of 8 a life or lives lost in a riot or an attack on the home 9 of a prison officer. If staff or their union 10 representatives were sometimes unwilling to cooperate, 11 and if there was a problem with absenteeism, that, too, 12 is hardly surprising, given the very particular 13 circumstances. 14 If the first crucial finding then is as to the true 15 reasons for problems, the second key finding should 16 consist, we submit, in a fair and balanced appraisal of 17 procedures in Maze without the rhetoric that has been 18 employed by advocates for different causes. 19 The fact is that witnesses told the Inquiry about 20 proper headcounts as well as assumed headcounts. 21 Witnesses told the Inquiry about searching which they 22 considered to be effective. The Steele reforms did 23 bring about improvements in searching. Maze did have 24 an effective and extensive system of camera coverage and 25 the yards were watched by tower guards. A busy Security 71 1 Department worked hard to collect and analyse such 2 information as it could, with or without a single 3 individual taking the dedicated role of collator. 4 The ingress of guns in December 1997 was, of course, 5 a disaster, but it had not happened at Maze since 1983, 6 and, as we have said in the written submissions, 7 contraband such as mobile phones still make their way 8 into high security prisons everywhere. 9 We invite the Panel to make a third important 10 finding, or set of findings, about control and security. 11 This is a submission we have already made about 12 so-called co-location. 13 It was easy to identify problems, but much harder to 14 find solutions. Sir Richard Tilt made some specific 15 suggestions and in our written submissions we have 16 sought to explain why what he thought were possible 17 solutions might not have been suitable at all. 18 Perhaps the best example is rooftop protection. 19 Everyone knew the roofs of the H Blocks were vulnerable. 20 To this day, as Sir Richard Tilt has recognised, nobody 21 has fashioned a solution, short of demolition, that 22 would have completely solved the problem. Mr Kane's 23 written submissions are a case in point. At pages 83-84 24 he eloquently states the roof problem, but the 25 submissions are tellingly silent as to any solution 72 1 beyond a reference to the proposal of double-skinning, 2 which, as Sir Richard Tilt accepted, might have been 3 an improvement, but was not a solution. 4 Pages 86-87 lay bare the searching problem, but they 5 do not suggest what could or should have been done about 6 it. These are all reasons why we respectfully submit 7 that this should not become an Inquiry about the 8 management of the Maze Prison in 1997. 9 The next topic is warnings, and that's addressed at 10 chapter 16 of our submissions. I won't repeat the 11 submissions I made on behalf of Ministers in relation to 12 the POA meeting on 1 July 1997 and the NIACRO meeting on 13 10 July 1997, but NIPS formally adopts those 14 submissions. 15 I do invite the Panel, though, to look, please, at 16 pages WS19-0073, lines 17-27 and CS19-0074, lines 15-21. 17 This is the point in the family's submissions when 18 they address the LVF riot in the context of warnings 19 about H6, but the LVF riot was not a warning about the 20 safety of co-location. The cause of the riot was not 21 the location of LVF in H6, but was dissatisfaction with 22 the visiting arrangements. The family cites this 23 violence inside the prison and attacks on staff homes 24 outside as a sign of the dangers of co-location, but 25 what is not recognised by the family, and what should, 73 1 we submit, be recognised by the Panel, is that the same 2 facts demonstrated the dangers associated with any of 3 the alternatives to co-location; for example, altering 4 the refurbishment programme and denying the UVF their 5 promised renovated accommodation, or requiring PIRA and 6 INLA to squeeze up in the same blocks. Precisely the 7 same sort of consequences were likely to flow from those 8 options. 9 Our duty, NIPS' duty, was to consider and compare 10 the risks of in-prison and out-of-prison violence 11 arising from all the alternatives and reach a reasonable 12 decision. At all times this was precisely what Maze 13 management was doing. We invite the Panel to conclude 14 that the decision on location was reasonable, given the 15 constraints that were operating at the time. 16 We appreciate that the Panel, equipped with 17 hindsight, may take a different view. If so, we would 18 be more than a little interested in the better solution 19 that has eluded everybody over all these years and has 20 not yet been clearly articulated by any of the parties, 21 but if the Panel does find that there was a better 22 solution, that is a far cry from a finding that Maze 23 management closed its eyes to the risk. All the 24 evidence we submit shows management were taking 25 appropriate steps to manage the risks that existed. 74 1 At CS19-0075 the family address the Board of 2 Visitors. On 10 September 1997 the Board of Visitors by 3 Mrs Gilpin told Alan Shannon of concerns about the plan 4 to return the LVF to H6. It is a matter of record that 5 NIPS did not abandon the location arrangements in 6 response to this communication, but once again, the 7 confusion is between, on the one hand, continuing the 8 location arrangements, which, of course, is what 9 happened, and, on the other hand, ignoring warnings. 10 Just because there was no change to the location 11 arrangements doesn't mean that warnings were ignored. 12 Of course, an Inquiry can criticise a body such as NIPS 13 if it thinks that decisions were poor decisions, but the 14 family seem to seek a very different kind of criticism. 15 They ask the Inquiry to find that NIPS made its 16 decisions without having regard to relevant information 17 such as warnings. 18 Other than the fact that the warning did not 19 persuade NIPS to change its mind, there is no evidence 20 that NIPS failed to have regard to it and no proper 21 basis for such a finding. 22 The Panel can be reassured that no such finding is 23 appropriate by bearing in mind the reasons why this 24 warning was not considered to be particularly 25 persuasive. In other words, there is nothing surprising 75 1 or -- to use a word favoured by the family -- sinister, 2 in the fact that NIPS was not persuaded by this warning. 3 The reasons are, firstly, the fact that the content 4 of the warning was the type of material in constant 5 circulation at the time described as common currency, 6 and, secondly, that it was routine for prisoners to use 7 bodies such as the Board of Visitors as a conduit for 8 their own wishes. 9 This did not mean warnings were ignored. It simply 10 meant they were assessed. It was often a reason, and 11 a good reason, why the assessment resulted in no change 12 being effected. 13 I would like to look now, please, at pages CS19-0076 14 and CS19-0077 of the family's submissions where they 15 address the INLA petition against the LVF return. 16 This confirms what is already apparent from the 17 Board of Visitors' and NIACRO conference that INLA wish 18 to express concerns about safety. 19 Again, NIPS was aware of this fact and was entitled 20 to decide that it could deal with it. It confirms 21 Mr Shannon's evidence about the tendency of prisoners to 22 articulate their concerns through multiple channels 23 using different bodies to send the same message. This 24 in turn provides a rational answer to the suggestion 25 that NIPS should have been alarmed by the multiple 76 1 nature of these warnings, because, in reality, they are 2 all from the same source. 3 As to who wrote the response, I have not 4 specifically checked, but it can be inferred from the 5 fact that the name has not been redacted that it was not 6 written by Martin Mogg, so it was a letter from 7 Operations Division to the Governor. That answers the 8 point that's made by the family at the bottom of 9 page CS19-0076. 10 It is suggested by the family at CS19-0076, 11 lines 27-28, if we could highlight those, please, the 12 left-hand page, lines 27-28, that this petition gave 13 rise to a possible alternative and that's the matter 14 I alluded to earlier. 15 So this is a rare, possibly unique, example of 16 a party to this Inquiry suggesting what they say is 17 a possible, albeit not in terms practical, alternative. 18 It may, therefore, be worth just looking at the 19 underlying document. That is, please, at NP22-0513. If 20 we could highlight the last paragraph. I observe in 21 passing that the significance of the opening wording of 22 this paragraph will not be lost on the Panel and perhaps 23 shows the propensity of the prisoners to be mischievous 24 about this: 25 "Given that our safety cannot be guaranteed as 77 1 a result of such a move, are we supposed to take 2 adequate precautions to defend ourselves? If so, why 3 are we being placed in such a position when there is 4 other viable alternatives available, ie relocate the LVF 5 in H3?" 6 So the suggestion here that's made by INLA and 7 adopted by the family is that the LVF should be moved to 8 H3. Now, in September 1993, when the petition was made, 9 H3 was occupied by the UVF. This was not a new 10 suggestion by INLA. INLA, in fact, had been saying the 11 same thing right from April 1997: namely, that the LVF 12 should be located with the UVF, because the LVF were the 13 UVF's problem. 14 The reference for that, which we don't need to look 15 up, is PS01-0101. 16 This was obviously not a solution, not least because 17 of the specific death threat from the CLMC. The only 18 other person to have suggested this solution was 19 Jill Quinn in her evidence on Day 57, but she had 20 obviously forgotten about the death threat. 21 When she was reminded of this under the most gentle 22 questioning by my learned friend Mr Bourne, she readily 23 agreed it was not a solution at all. That is Day 57, 24 page 40, line 13. If we could keep, please, NP22-0153 25 on the screen. It has already been done. Thank you. 78 1 And on the right-hand side, NP40-0038. 2 Quite apart from the death threat from the CLMC as 3 a reason for not locating in H3, NIPS had specifically 4 assessed that there would be a UVF reaction if there was 5 any delay in providing alternative accommodation. 6 That's the document we see at NP40-0038. This is a PIU 7 document just five days after the INLA petition. So the 8 INLA petition was 21st September and this document is, 9 I think, 26 September. 10 If we look at paragraphs 4.1 and 5.1, it records the 11 INLA view at -- yes, what INLA thought about relocation 12 at paragraph 4.1 and at paragraph 5.1 it specifically 13 assesses the position of the UVF: 14 "The UVF are quiet. They are waiting to see if the 15 LVF have moved and their members moved to the vacated 16 accommodation in H2. Any untoward delay will cause them 17 to react." 18 Of course, the Panel will appreciate what the word 19 "react" means. 20 In any event, the numbers were such -- if we look, 21 please, at NP28-0275 and highlight H2 -- that it would 22 not have been possible to have given the LVF a separate 23 leg in H3. Look at H2, because this is a document from 24 December 1997, and by this stage those who had been in 25 H3 had been moved to H2. 79 1 We see from this that the number of prisoners 2 involved here in H2, but at the time in H3, were a total 3 occupancy of around 65. That is far too many, 4 obviously, to locate in one leg. So if it had been 5 a question of locating the LVF with the UVF, it would 6 not have been possible to have done so with them on 7 separate legs of the block. That obviously, in our 8 submission, made the suggestion wholly impracticable. 9 So for these reasons the INLA suggestion, which 10 appears now to have been adopted by the family, was not 11 a practicable alternative. 12 Now, it may be that in suggesting H3 when they did, 13 in late September of 1997, the INLA had in mind that it 14 was about to become empty, because the UVF were due to 15 move to H2, and, indeed, that duly happened on 16 13 October 1997. It would, of course, have been 17 theoretically possible to have moved the LVF into H3 18 after it became vacant on 13 October 1997, but it would 19 have meant a large number of additional staff with huge 20 additional annual expenditure, in the order of 21 £2 million a year in salaries alone. 22 It would have meant there was no contingency 23 accommodation. It would have meant that the 24 refurbishment programme, which included the importance 25 of Steele improvements, could not be implemented. It 80 1 would have meant that the UVF and UDA demanded separate 2 accommodations. You have the evidence of Mr Masefield 3 on that issue. It was, therefore, not a practical 4 alternative, for the reasons we give in more detail at 5 paragraphs 656-674 of our written submissions. 6 Sir Richard Tilt broadly agreed with those points in 7 this respect and did not contend that location with the 8 UVF or with other Loyalist groups was a practical 9 solution. See Day 124, page 49, line 24. 10 The next point is the NIACRO letter of 25 September 11 1997. I don't need the screen anymore. Thank you. 12 The response to this letter is substantially the 13 same as the response to the Board of Visitors' concerns. 14 The letter expressly passed on the concerns of prisoners 15 and NIPS were entitled and right to assess it in that 16 light. It was a repeat of what INLA were saying. The 17 letter was also specific in mentioning a fear of 18 confrontation between individual prisoners when being 19 escorted into and out of the block. That was a risk 20 that NIPS took specific measures to counter. So long as 21 NIPS was confident that this risk was being properly 22 managed, and it was, the letter contained no reason not 23 to persist with the location arrangements. 24 It has been suggested that the NIACRO and BoV 25 warnings contain more than the sum of their parts, in 81 1 that the fact of repeated or duplicated warnings should 2 have been considered especially significant, but 3 Mr Shannon confirmed to the Inquiry that, far from being 4 unusual or alarming, it was normal for prisoners to 5 communicate the same concerns by different avenues. 6 My Lord, I turn to the POA letter of 7 11 September 1997. This letter raised some specific 8 concerns. As always with the POA, these concerned the 9 safety of staff, not prisoners. In particular, they 10 mention the ease of access to the roof on the INLA side, 11 because there was only limited S-wire and the rear 12 sterile gates were open. It has been suggested that the 13 evidence leaves room for doubt about whether the gates 14 between the yards or the gates between yards and the 15 sterile area were closed. That issue is addressed at 16 paragraph 1413 of our submissions. 17 One thing, though, is certain. On 27 December 1997, 18 INLA did not pass through an open pair of sterile gates. 19 It instead cut a hole in the catwalk fence. If the 20 gates had been open, then that choice of route that INLA 21 took is simply inexplicable, as Brian Barlow, amongst 22 many others, confirmed. The only element of warning in 23 the POA letter is a reference to "recent threats from 24 the INLA that they will burn H6 if LVF are returned". 25 That's precisely the sort of pressure which was 82 1 routinely applied to NIPS and Maze management whenever 2 it was faced with difficult decisions. Maze management 3 did not give into this threat. It was right not to do 4 so. In the event, the LVF were returned and INLA did 5 not burn the block. 6 In the meantime, all that this warning told NIPS was 7 that INLA was opposed to LVF's return. That was not 8 news, it was not a surprise and it was not disregarded. 9 It was known about and it was taken into account. 10 The next point is the SIR of 4 October 1997. This 11 is the SIR that described observing four INLA prisoners, 12 including Kenneway, inspecting the fence and tower and 13 noting that the INLA prisoners had sent their musical 14 instruments out of the block the previous day. 15 The observation of the fence and tower was a routine 16 SIR. This was the sort of information which would lead 17 the prison authorities to keep a careful watch for 18 related incidents, but not to take further operational 19 action, and certainly not to make a very significant 20 change in the accommodation arrangements. The sending 21 out of the instruments was part and parcel of the 22 expression of INLA concerns and their threats about what 23 would happen if the LVF were returned. It would 24 typically presage a riot. NIPS rightly did not cave 25 into that threat and the riot did not materialise. 83 1 If we look, please, at page CS19-0078 of the 2 family's submissions at lines 28-34 and page CS19-0079, 3 lines 1-11, we see on the right-hand side of the page it 4 is suggested we submit erroneously that NIPS failed to 5 attach significance to this type of intelligence because 6 of the lack of a collator. 7 When we look at the next item which is on the 8 screen, the staff communications sheet from Steve Davis, 9 we see that, despite the lack of a collator, the family 10 concede that the Security Governor pieces together 11 information that has come into the SIC and he reaches 12 the appropriate conclusion. 13 This document, in fact, pulls together the last few 14 items, demonstrating that, far from ignoring warning 15 signs, NIPS was fully taking them into account and, 16 indeed, anticipated action by INLA in retaliation for 17 the return of the LVF, but in the event, that threat was 18 seen off, and, in the short term, the block appeared to 19 settle down. Indeed, in the long-term we have the Board 20 of Visitors' comments in December of 1997. 21 The family then addressed the report of Steve Davis 22 at CS19-0080, lines 8-11. They say at line 8: 23 "Given that Mr Davis in 1997 within a short 24 time-frame rapidly assessed the serious shortcomings of 25 security and control and informed his superiors 84 1 accordingly, the question arises as to why seasoned 2 management and staff at HMP Maze and NIPS failed to do 3 so or chose not to do so." 4 We respectfully ask: failed to do what? 5 Alan Shannon's conclusion is right. The report of 6 Steve Davis was consistent with ongoing concerns about 7 the Maze and was consistent with the continuing process 8 of Steele implementation. It was not in any sense 9 a warning about H6. 10 The next point and an important point is the ICRC. 11 I don't need the screen anymore. Thank you. 12 Much has been said about the ICRC visit. The 13 headline points, in our submission, are these. 14 Firstly, the warning was not ignored. Like all 15 warnings, it was taken into account, but taking it into 16 account does not necessarily mean that action had to be 17 taken in response to it. It was a question of 18 assessment. 19 Secondly, the ICRC did not have any specific 20 expertise in security matters. Mr Macleod established 21 that in his questioning of Duncan McLaughlan, who 22 himself works for the ICRC. So this, although from 23 a very respected body, was not a view from experts in 24 security. 25 The third point is that the warning did not tell 85 1 NIPS anything that they did not already know. The term 2 "powder keg", whether or not it is an idiom customarily 3 deployed in Switzerland, but regularly heard in the six 4 counties, whether or not that is the case, it is 5 accepted it was known at the time that there were 6 serious tensions in H6 which had to be managed. The 7 phrase "storm the other side" is colourful language, but 8 it simply meant that the roofs of H Blocks were 9 vulnerable, something that was known by NIPS management. 10 However much it might in hindsight be wished that 11 the Maze responded to this warning by ending 12 co-location, NIPS' reason for taking a measured view of 13 the warnings were perfectly valid. NIPS did use groups 14 such as the Board of Visitors, such as NIACRO, such as 15 the ICRC to push their own agenda and to create 16 difficulties. The ICRC were not experts in prison 17 security and the fact that they were repeating the same 18 concerns that had been repeated by others and which 19 stemmed from the INLA was not news. 20 It is also interesting to note that at the time of 21 the ICRC report, the temperature in H6 appears to have 22 dropped. My learned friend Mr Kane argues that this 23 shows that, in fact, the temperature had not dropped, 24 but it is equally possible, in our submission, that the 25 tensions had been artificially cranked back up for the 86 1 benefit of the ICRC or that INLA had overstated what the 2 position was. 3 The family conclude this section of their 4 submissions on warnings and threats by suggesting that 5 Mr Mogg and Mr Shannon were reckless in persisting with 6 co-location. 7 To judge that submission fairly, the Inquiry Panel 8 should put itself in the position of Mr Shannon and 9 Mr Mogg and seek an overview of the threats and 10 warnings. When the LVF were about to return or had just 11 returned to H6, there were a spate of reports from INLA 12 via different channels, all directed at protesting at 13 the return or trying to prevent it. That was entirely 14 predictable. Clearly, NIPS took the view that the 15 return could take place without a catastrophe and that, 16 in the short term, proved to be right. 17 There was then a marked decline in reports of 18 threats and warnings, but in November came the ICRC 19 report. NIPS has explained why that report did not 20 persuade it to abandon co-location in favour of the 21 different risks that other solutions would give rise to. 22 The Panel may today take the view that some other 23 solution might, in fact, have been achieved at a lesser 24 cost, although, as we say, we submit that we cannot know 25 whether a different solution would have cost a life or 87 1 lives by some other mechanism, and there are all sorts 2 of practicability difficulties that we have addressed. 3 Even if the Panel does at take that view, that's not 4 inconsistent with the Inquiry nevertheless understanding 5 how rational decision-makers at the time took 6 a different view, given the information they had at the 7 time. 8 The sad fact is the paramilitaries were bent on 9 pressurising NIPS into doing what they, the 10 paramilitaries, wanted. In every such situation, 11 Mr Mogg, Mr Shannon and NIPS had very difficult 12 decisions to make, and whatever option they chose, they 13 were liable to be open to criticism. 14 If the INLA, by dint of sustained pressure exerted 15 via NIACRO, the Board of Visitors, the ICRC and others, 16 bullied NIPS into, for example, interrupting the 17 refurbishment programme with its important Steele 18 component, and if, as a result, there was a riot by 19 a Loyalist group which had been expecting to be put into 20 improved accommodation, and something died, that would 21 be the fault of NIPS, NIPS' failure to stand up to the 22 paramilitaries, but if, as happened, NIPS listened to 23 all of the concerns and threats and warnings, refused to 24 be bullied by them, judged instead the precautions that 25 were in place in the block, together with the agreement 88 1 by both sides not to take a first strike, if NIPS took 2 the view, assessing all the circumstances in the round, 3 that the risks were acceptable, NIPS was entitled to 4 endure the, "I told you so", reaction of those who 5 passed warnings in advance of the December murder. 6 That catch-22 was the reason why threats were common 7 currency in Northern Ireland and not just in the prisons 8 context. They were a powerful weapon. 9 That brings us back to the central theme of our 10 submissions. The challenge for the Panel is not just to 11 review every decision made by every manager in Maze and 12 in NIPS Headquarters and give it a mark out of 10. The 13 challenge is to understand the decisions that were 14 reached at the time. 15 I remind you again that the Ministers and Mr Shannon 16 and Mr Mogg and Mr McNeill and Mr Davis and others who 17 were involved were not conspirators in some State plot 18 to murder Billy Wright, nor were they people of low 19 ability. They were senior, experienced and highly 20 competent officials and operational decision-makers. 21 What this Inquiry has revealed is why threats and 22 warnings were not enough in the circumstances to bring 23 about a different outcome, and that, for the people of 24 Northern Ireland, is, we submit, the real value of the 25 Inquiry process. 89 1 My Lord, in conclusion, we maintain our principal 2 submission that there is absolutely no evidence of 3 a State conspiracy and that the conspiracy allegation 4 should be authoritatively rejected. 5 Secondly, we submit that the Inquiry should not 6 proceed to decide every question of fact that has been 7 raised. Instead, the Panel should decide how to 8 construe their terms of reference and whether our 9 construction of the terms of reference is right or 10 wrong. If our interpretation is correct, then the Panel 11 will not necessarily need to go beyond the conspiracy 12 allegation, but it can, of course, do so, if it 13 considers it appropriate. 14 Thirdly, we accept that there were some failings. 15 We identify those at paragraph 4 of our submissions, and 16 I have expanded on them at some length in these oral 17 submissions. It is for the Panel to decide whether or 18 not we are correct to regard these as failings and 19 whether or not any censure of NIPS is appropriate in 20 relation to them. 21 Fourthly, we do not accept the highly personalised 22 and, we submit, wholly unfair criticism of individuals 23 who it is said bear personal responsibility for the 24 murder. The individuals we represent, and, indeed, the 25 individuals Mr Beer represents, were highly capable, 90 1 highly professional and highly dedicated public servants 2 who deserve, we submit, considerable praise for the job 3 they did. 4 My Lord, unless there are any questions, those are 5 the supplementary submissions we wish to advance. 6 May I just finish -- I hope this is not in any way 7 inappropriate -- by thanking the Inquiry's 8 administrative staff for their considerable assistance 9 in relation to practical matters, particularly for the 10 attendance of witnesses and the manner in which 11 witnesses have been looked after and accommodated when 12 not giving evidence. That's something which has been 13 very much appreciated by my clients. 14 THE CHAIRMAN: Thank you very much, Mr Johnson. There will 15 be some questions. Professor Coyle? 16 PROFESSOR COYLE: Just a couple of questions, Mr Johnson, if 17 I may, particularly in reference to your written 18 submissions. 19 MR JOHNSON: Yes. 20 PROFESSOR COYLE: There is extensive reference to the fact 21 that the Maze was a unique prison. 22 MR JOHNSON: Yes. 23 PROFESSOR COYLE: Is the submission it was unique in terms 24 of the United Kingdom or in terms of Europe or in terms 25 of the rest of the world? 91 1 MR JOHNSON: The only submission I need to make is that it 2 was unique in terms of the United Kingdom. The reason 3 I only need to make it in those terms is that the 4 relevance of the submission is to caution against 5 comparing the Maze with high security prisons in 6 England, Wales and, indeed, Scotland. 7 A point we make in several places is that, of 8 course, the position in the Maze would be anathema to 9 any security expert coming from England, Wales or 10 Scotland, because it is so different. Our point is that 11 the Maze was unique, at least in terms of the United 12 Kingdom, and it is not appropriate to draw comparisons 13 without having regard to the wider context, which is 14 where Professor English comes in. 15 In terms of the world, I am probably not qualified 16 to give an opinion, and the Inquiry has not heard 17 detailed evidence, but the evidence it has heard on that 18 subject, which suggests it might not be unique in terms 19 of the world, is from Duncan McLaughlan, who has 20 considerable international experience of prisons and 21 I think pointed to a prison in Mexico where there were 22 similar problems of factions occupying different areas 23 of a prison and similar difficulties arising. 24 If it is appropriate to use that as a comparator, 25 then we observe the difficulties that that prison had 92 1 were far, far worse than the Maze. Mr McLaughlan 2 himself remarked about many fatalities having occurred 3 in that prison just the day before Mr McLaughlan had 4 given evidence and there were a number of other 5 instances as well. 6 So the short point is it is not safe to draw 7 comparisons between the Maze and other prisons in the 8 United Kingdom. 9 PROFESSOR COYLE: I'm comfortable with that and I note what 10 you say about the rest of the world. The reference 11 which Mr McLaughlan made on 20 October was to a press 12 report about a riot in a particular prison in Mexico. 13 MR JOHNSON: Yes. 14 PROFESSOR COYLE: But I am just wondering whether your 15 clients have knowledge of other prisons in quite 16 a number of countries which hold large groups of 17 disparate terrorist prisoners and would seek to draw any 18 comparison with them? 19 MR JOHNSON: I am not in a position to assist on that. 20 I suspect there is a considerable body of knowledge 21 within my client on that topic, but it is not something 22 I am in a position to assist the Panel on. 23 PROFESSOR COYLE: Your written submission also refers in 24 several places to the impressive security record of 25 Maze -- 93 1 MR JOHNSON: Yes. 2 PROFESSOR COYLE: -- in the decade up to 1997. 3 MR JOHNSON: Yes. 4 PROFESSOR COYLE: You will appreciate that the Panel is 5 particularly concerned with 1997 and the beginning of 6 1998. 7 Now, during that period in Maze, there was a riot, 8 a major rooftop incident, there was an escape in which 9 a prisoner walked out of the front gate. There was 10 an escape tunnel which was discovered when it collapsed. 11 Two prisoners were murdered. 12 Do you have any submission on how that record 13 compares with high security prisons in England and Wales 14 during the same period? 15 MR JOHNSON: Well, one can point to the reports that were 16 made on high security prisons in England and Wales, 17 particularly the Whitemoor escape, which I took 18 Sir Richard Tilt through. 19 PROFESSOR COYLE: My question is actually about 1997. 20 MR JOHNSON: It was in the same general period of time, 21 three or four years earlier. Yes. If one took that 22 specific period of time or specific day, one prison 23 might be better or worse than another. It is fair in my 24 submission to take a reasonable period of time. 25 The cluster of incidents in 1997 is, I accept, 94 1 a matter of very great concern, but it is not wildly 2 different from the cluster of incidents one sees in 3 other prisons in England and Wales in the 1990s at 4 different points in time, from rooftop incidents, for 5 example -- there was the Strangeways riot and a cluster 6 of other incidents that immediately followed that. 7 These incidents do sometimes come in clusters in that 8 way. 9 The point we really make about the security record 10 at the Maze is that one has to look at decisions through 11 the eyes of the Operational Management in 1997, and, as 12 at the start of 1997, management would have had a degree 13 of security, perhaps to some extent a false degree of 14 security, from the long period of time in which there 15 had been relatively few significant incidents. 16 Now, of course, by late 1997, there was the cluster 17 of incidents that gave rise to concern, but by that time 18 it is too late actually to make any effective difference 19 before the murder. 20 PROFESSOR COYLE: A final question about Martin Mogg's dual 21 role. 22 MR JOHNSON: Yes. 23 PROFESSOR COYLE: In your submissions you explain in 24 considerable detail how Martin Mogg -- how the decision 25 was made that he was the only person suitable to be 95 1 appointed as Governor of Maze. 2 MR JOHNSON: Yes. 3 PROFESSOR COYLE: Do you make any submission about whether 4 any attempt was made to replace him as Director of 5 Operations? I ask that particularly in view of the fact 6 that subsequently, when he went to be Governor of 7 Maghaberry, in fact, someone else was appointed as 8 Director of Operations. 9 MR JOHNSON: All I submit on that is that that's not 10 something I think which has been explored in any real 11 detail in the evidence. The focus has been on the 12 governorship of Maze, but the decision-making process is 13 recorded in some detail. I don't have the reference to 14 hand, but it is in our written submissions, in 15 the minute that Mr Shannon sent up to the PUS explaining 16 the decision, and it was a decision that was sanctioned 17 by the PUS, and it shows the proper process in play. 18 Now, it may be, if one looked at it, there were 19 other options that theoretically could have been taken, 20 but it is not something that has been explored in any 21 detail in the evidence. 22 PROFESSOR COYLE: Thank you very much. 23 THE CHAIRMAN: Early on in your oral submissions this 24 morning you made mention of Adam Ingram and the 25 statement he made to Parliament. 96 1 MR JOHNSON: Yes. 2 THE CHAIRMAN: I think you indicated that that was a matter 3 that we couldn't enter upon. I was not quite sure what 4 you meant. Do you mean by that it is not open to this 5 Inquiry to suggest, allege that he misled Parliament? 6 MR JOHNSON: Yes. 7 THE CHAIRMAN: I can understand that. At the same time, 8 does that mean that we can't criticise what he said? 9 MR JOHNSON: Yes. 10 THE CHAIRMAN: Really? Why is that? 11 MR JOHNSON: Because -- well, it depends what the 12 criticism -- 13 THE CHAIRMAN: Supposing what he said, which was certainly 14 from a brief, does not conform with what we have found 15 in evidence. Are we supposed to say nothing? 16 MR JOHNSON: That's precisely the position, in my 17 submission. There are three reasons for it. 18 THE CHAIRMAN: Yes. 19 MR JOHNSON: The first reason -- this is a very slight 20 reason which could be overcome very easily -- is it is 21 not alluded to in the Panel's list of issues. The Panel 22 is perfectly entitled to amend its list of issues to 23 include it. 24 The second point is it is outside the terms of 25 reference because the terms of reference concern the 97 1 wrongful acts or omissions that facilitated the murder, 2 and the Minister's account could not, on any view, have 3 facilitated the murder, because it postdated it. 4 Therefore, our submission is that the terms of reference 5 do not permit the Panel to consider that issue. 6 The third and the substantive point is that it would 7 be contrary to Article 9 of the Bill of Rights 1689 for 8 the Panel to entertain the issue. That's something 9 that's developed in our written submissions at 10 paragraphs 431-440. 11 The Bill of Rights recognises a very important 12 constitutional principle that proceedings in Parliament 13 are sacrosanct and that courts and Inquiries and 14 tribunals are not entitled to question what is said in 15 Parliament. 16 As I say, that recognises an important 17 constitutional principle. It has the consequence that 18 there will be cases where courts or Inquiries or 19 tribunals have to proceed on incomplete evidence or are 20 unable to trespass into certain areas, but that's 21 a matter of constitutional principle that recognises the 22 supremacy of Parliament. 23 As I say, we have dealt with it in our written 24 submissions. There is a valuable analysis of this 25 general area in Erskine May on Parliamentary procedure. 98 1 I can provide a reference in a moment. 2 THE CHAIRMAN: So all that evidence that we heard, perhaps 3 on, not one, but two occasions, was beside the point, 4 was it? 5 MR JOHNSON: Yes. 6 THE CHAIRMAN: I do find that a little surprising, but you 7 can approach it in another way, of course. You can say 8 plainly what he said was in a brief from his office and 9 the question is how accurate that brief was. 10 MR JOHNSON: Yes. 11 THE CHAIRMAN: What he said is a matter of public record. 12 MR JOHNSON: Sorry. The first point, to give you of the 13 reference, it is pages 108-118 of Erskine May, which 14 deals with the point generally. 15 THE CHAIRMAN: Yes. 16 MR JOHNSON: In order to criticise the briefing rather than 17 the statement in Parliament would, in our submission, be 18 an artificial device which is designed -- 19 THE CHAIRMAN: I don't think it is, with great respect. It 20 is not artificial. That was the source for it, and was 21 the source right? No, it wasn't. 22 MR JOHNSON: I will come to that point in just one moment. 23 The first point is that the dialogue that has led to the 24 question rather demonstrates that the first port of 25 criticism and indeed the natural statement to be 99 1 criticised would be the statement made in Parliament, 2 without necessarily casting blame on the Minister but 3 simply saying that it was misleading. 4 THE CHAIRMAN: Yes. 5 MR JOHNSON: It is only once that is rejected that the 6 question then arises whether instead one can criticise 7 the terms of the briefing. 8 In my submission, it would be inappropriate to seek 9 to avoid the rule in Article 9 by questioning the 10 briefing rather than the statement. 11 In any event, by questioning the briefing, one is 12 naturally and unavoidably questioning the statement that 13 was made in Parliament, but so far as the briefing 14 itself is concerned,we deal with that in our written 15 submissions, and we dealt with it at some length in the 16 questioning of Alan Shannon. 17 The briefing should not be seen in isolation. The 18 briefing that the Inquiry has looked at was not 19 a briefing for a statement to be made in Parliament. It 20 was a briefing about Steele generally and that's clear 21 from the document itself. There may well have been 22 a separate document which was in very similar terms to 23 the Steele document, but that hasn't been put before the 24 Panel. 25 As I say, it shouldn't be seen in isolation. It was 100 1 one of a very large number of briefings that were given 2 to the Minister, and there can be no question that the 3 Minister was under any illusion about the state of the 4 Maze. This is dealt with in our written submissions at 5 paragraphs 443 to 450. 6 It is absolutely clear, we submit, from the evidence 7 given, for example, by Mr Shannon at Day 120, page 38, 8 line 6, and the references that are picked up in that 9 section of the evidence, that the Minister was given 10 a very fair picture of the response to the Steele 11 implementation, warts and all, and he was aware of the 12 deficiencies in the response to Steele and the 13 difficulties in cell checks, for example. 14 So it would be misleading, in my submission, to 15 simply focus on one briefing in January 1988 which was 16 not for the purpose of -- or December 1997, which was 17 not for the purpose of a statement in Parliament without 18 looking at the wider sequence of briefings that the 19 Minister had been given. 20 In any event, nothing in the briefing said in terms 21 the words that were used by the Minister in Parliament. 22 It is not said in terms that there was in place 23 a programme of reforms that included ... 24 THE CHAIRMAN: Thank you. 25 MR JOHNSON: My Lord, can I just add this, and I am grateful 101 1 to my learned friend Mr Greatorex? We have dealt with 2 the substance of the issue in our submissions, but we do 3 raise the Bill of Rights point, but we raise it because 4 we wish, with the greatest of respect, the Panel to be 5 aware of the principles that are in play and not to 6 commit unknowingly a constitutional error. 7 THE CHAIRMAN: We are grateful to you. I hear in my right 8 ear from Professor Coyle, "What's going to happen in the 9 Iraq Inquiry then?" 10 MR JOHNSON: This is a question that gives rise to great 11 difficulties different Inquiries and it has to be 12 confronted. It is a difficult area. 13 THE CHAIRMAN: I don't want to pursue this actually. 14 There is one other matter I want to pursue with you. 15 It arises from your written submissions at 16 paragraph 879. That's -- I haven't got the citation: 17 page 405. 18 MR JOHNSON: Yes. 19 THE CHAIRMAN: Because you have been at pains to say this 20 morning that this is not an Inquiry into how the Maze 21 was run. 22 MR JOHNSON: Yes. 23 THE CHAIRMAN: I just want to ask you whether you stand by 24 what you say there, and in particular that passage which 25 says: 102 1 "And whilst the murder of Billy Wright was 2 an appalling instance of the consequences of failures in 3 control and security ..." 4 Do you stand by that? If you do, could you identify 5 what those failures were, "control and security"? 6 MR JOHNSON: I think a better word than "failures" would 7 possibly be "breaches". 8 THE CHAIRMAN: Where were the breaches? 9 MR JOHNSON: Oh, the breaches in control and security are 10 the hole in the fence, the smuggling in of the weapons. 11 THE CHAIRMAN: Yes. 12 MR JOHNSON: Those would be the two primary breaches of 13 control and security taken together with the prisoners 14 getting onto the roof, but that was a consequence of the 15 of the hole in the fence. 16 THE CHAIRMAN: If it is a consequence, does that mean they 17 facilitated his death? 18 MR JOHNSON: Before I answer that question, which I will do, 19 can I just make it clear the difference between failures 20 and breaches? 21 One can have a breach of control and security 22 without there being any failing of control and security, 23 and the very good example of that is the evidence of 24 Sir Richard Tilt. He accepted that the fact that 25 weapons, mobile phones, contraband, drugs and so on were 103 1 smuggled into prisons is a breach of control and 2 security. It doesn't necessarily show there has been 3 any control and security failing. 4 That's why I say in general terms that the word 5 "breaches" might be a better word than "failings". We 6 do accept that the hole in the fence -- I will start 7 again. We accept that the fact that fences weren't 8 being checked was a failing in security. 9 THE CHAIRMAN: Yes. 10 MR JOHNSON: We accept that at paragraph 4 of our 11 submissions. We don't accept that the hole in the fence 12 is necessarily a failing in control and security, 13 because the hole in the fence doesn't necessarily follow 14 from the fences not being checked. It is something that 15 could have happened even if the fences had been checked 16 on a reasonably regular basis. 17 THE CHAIRMAN: Well, you describe, later on, the hole in the 18 fence as being "a breach of security ... without [it] 19 the murder would not have taken place in the way that it 20 did". That's what you say. Is that right? 21 MR JOHNSON: Sorry. Can I have the reference? 22 THE CHAIRMAN: It is 1019. 23 MR JOHNSON: Yes, because there are two or three important 24 points in this. Firstly, again, here we are talking 25 about breaches of security rather than failings in 104 1 security and saying that the hole in the catwalk fence 2 and it remaining discovered (sic) show breaches of 3 security. 4 THE CHAIRMAN: That's why I took you to the citation. It 5 used the word "breach". 6 MR JOHNSON: I am grateful. It shows that possibly the 7 wrong word is used at paragraph 879. When we then say: 8 "It is equally plain that without this breach of 9 security the murder would not have taken place ..." 10 The important words are the words that follow: 11 "... in the way that it did." 12 In other words, we know with hindsight the murder 13 took place as a result of McWilliams and Kenneway going 14 through the hole in the fence, and obviously, if there 15 had not been a hole in the fence, it would not have 16 taken place in that way. 17 It doesn't follow that the hole in the fence 18 necessarily facilitated the ability of INLA to carry out 19 a murder, because they could have done so in a number of 20 other ways, but it did facilitate them carrying out the 21 murder in the way they did. 22 THE CHAIRMAN: I understand that. A lesser question, if 23 I might say so, in 1009 you say: 24 "It is likely that the guns were smuggled in shortly 25 before 27 December 1997." 105 1 MR JOHNSON: Yes. 2 THE CHAIRMAN: What do you base that on? 3 MR JOHNSON: We base that on the evidence of Mr McMullan and 4 the evidence of Sir Richard Tilt, both of whom said -- 5 Mr McMullan in answer to questions from my learned 6 friend Mr Stewart, and Sir Richard Tilt in answer to 7 questions from myself -- that -- I paraphrase obviously. 8 THE CHAIRMAN: Yes. 9 MR JOHNSON: Prisoners, if they wish to bring weapons into 10 a prison, will wish to do so for a reason. They will 11 have a motive to do so. They will have an operation in 12 mind. 13 THE CHAIRMAN: Yes. 14 MR JOHNSON: The longer they have the guns in the prison, 15 the greater the risk of detection, and, therefore, as 16 a matter of logic as well as a matter of the experience 17 of Mr McMullan and Sir Richard Tilt, prisoners are 18 likely to bring items they wish to deploy into a prison 19 shortly before the time at which they are going to be 20 used. 21 THE CHAIRMAN: Even in the Maze? 22 MR JOHNSON: As a matter of logic, that's our submission, 23 because, even though the searching regime was not ideal, 24 there were large numbers of searches taking place of 25 individual prisoners, visitors and staff, and there were 106 1 some -- there was some searching going on. There may 2 not have been in the period immediately before 3 December 1997, but there was a great deal of pressure 4 being placed by NIPS Headquarters on Maze management to 5 reintroduce searching. 6 It did, in the end, get re-introduced in January of 7 1998. Prisoners weren't to know precisely when it would 8 be re-introduced and there was, therefore, always a risk 9 that if they had contraband in the prison, it would, at 10 some point, be discovered. There is evidence of 11 contraband being discovered from time to time in the 12 Maze. 13 THE CHAIRMAN: Thank you very much. 14 Bishop Oliver? 15 RT REV OLIVER: I wanted to ask you about something you said 16 in your oral submission quite early on today. It was 17 about recognition of a risk from the INLA. It was 18 recognised that placing the LVF in H6 involved a risk 19 from the INLA. That risk was identified well before the 20 transfer took place. That's precisely why work was done 21 in constructing separate visits accommodation before 22 Billy Wright was transferred to the Maze. 23 I was puzzled by that, because I don't know what the 24 visits accommodation issue had to do with the threat 25 from the INLA. 107 1 Is not the point that the LVF would normally have 2 taken their visit in the Loyalists visits accommodation, 3 but, because of the CLMC threat, that was not possible? 4 Nothing to do with the INLA. 5 Furthermore, the work was not done before 6 Billy Wright arrived. In fact, it was still not done in 7 August, which is why there was a riot. In other words, 8 there are two mistakes in that paragraph. 9 MR JOHNSON: As ever, you are right. 10 On the second point, I don't think it undermines the 11 submission we seek to make, though, because the fact is 12 it was recognised that separate provision had to be made 13 for visits. Whether or not the accommodation had been 14 completed or not is irrelevant to the point. The fact 15 is it had been recognised there would need to be 16 separate provision. 17 As to the first point, you are right. The fact that 18 separate visits accommodation was being built wasn't -- 19 doesn't show, I accept, a risk specifically from the 20 INLA. In fact, it is probably more a risk from other 21 Loyalist groups. Nevertheless, the evidence is that 22 everybody knew that putting a Loyalist group with 23 a Republican group involved an element of risk. 24 Everyone knew there was huge antipathy between the two 25 groups. 108 1 RT REV OLIVER: This particular point you made was 2 absolutely irrelevant to that issue. 3 MR JOHNSON: Quite. I'm not going to seek to -- 4 RT REV OLIVER: There is another seeming contradiction in 5 the written submission. Page 148 at the very top. It 6 is a carry-over from page 147 where you are talking 7 about the fact that there was not a shortfall in 8 management posts and so on. There were not vacancies as 9 had been alleged. At the very top of page 148, 10 Martin Mogg, taking over the day after John Baxter 11 retired, ie there was complete continuity, but that does 12 seem to be contradicted by what you say on page 390, 13 paragraph 831: 14 "The Maze was vulnerable because of the absence and 15 impending departure of Governor Baxter." 16 In other words, you acknowledge that Governor Baxter 17 was not there and not functioning as Governor I some 18 time before he actually left. You can't have it both 19 ways, ie you can't say there was continuity of 20 management and then also acknowledge that there was 21 a period when there was not. 22 MR JOHNSON: No. I think strictly what we say is accurate. 23 What we say at 147 is that it is wrong to infer that 24 there was a vacancy in the post during 1997, and that 25 the post was filled throughout 1997 with Martin Mogg 109 1 taking over the day after John Baxter retired. That is, 2 I think, accurate. 3 It is right to say that there was a period of sick 4 leave, but one doesn't, during a period of sick leave, 5 immediately parachute in a new Governor I. 6 RT REV OLIVER: There also wasn't a Deputy Governor either. 7 MR JOHNSON: On the point of whether the two parts of the 8 written submissions are inconsistent, our respectful 9 submission is they aren't inconsistent and they can be 10 reconciled. Yes, there is that different point. 11 RT REV OLIVER: Then you said several times in your oral 12 submission you wanted the Panel to accept that the Maze 13 was run by brave and dedicated people doing their very 14 best in very difficult circumstances, but then there are 15 things which are in the report, for example, 16 particularly in paragraph 885: 17 "Mr Mogg's acknowledgment ... management has been 18 extremely poor, if not negligent", which does not seem 19 to reflect brave and dedicated people doing a good job, 20 however difficult the circumstances. 21 MR JOHNSON: Well, Mr Mogg was expressing in colourful 22 language -- I think this is the report he provided which 23 showed his reaction on arriving at Maze. It wasn't 24 unusual for new senior and experienced prisons 25 professionals coming to Maze to be startled at what they 110 1 found and to provide a report expressing that. There 2 are other examples of it. 3 RT REV OLIVER: But that particular report of 20 November 4 did contain a really shocking catalogue of accusations. 5 MR JOHNSON: Oh, yes. 6 RT REV OLIVER: So it doesn't entirely accord with the 7 picture you have been trying to paint today about people 8 doing their jobs as well as possible. 9 MR JOHNSON: Of course. The Inquiry has heard 90,000 10 questions and answers. It has tens of thousands of 11 documents. You can find in the evidence somewhere 12 material to support almost any proposition you like. 13 Yes, this document is not entirely consistent with 14 the general theme of my submissions, but the Panel has 15 seen large numbers of witnesses. It has had its own 16 opportunity to assess Mr Shannon, Mr McNeill, Mr Mogg, 17 not directly but vicariously through the evidence of 18 others and through the material. It can form its own 19 judgment, and I simply invite it to do that on the basis 20 of all the material, not simply one document showing the 21 reaction of one person after arriving at Maze. 22 Our submission is that when one looks at all of the 23 evidence in the round, the theme of our submissions is 24 merited. 25 RT REV OLIVER: Thank you. 111 1 MR JOHNSON: Sorry. If I may, just one further observation. 2 I am grateful to Mr Bourne for this. It is difficult to 3 know precisely who Mr Mogg had in mind by this, but it 4 may be that he had in mind his immediate predecessor, 5 and, of course, just as with Mr Mogg, the Panel hasn't 6 had evidence from his immediate predecessor and it 7 should, in my submission, simply be cautious about 8 expressing criticism of him, given that he hasn't had 9 an opportunity to give his own evidence. 10 In addition, we respectfully refer to the 11 observations that were made by Ramsbotham, by Tumin and 12 by Narey which, in my submission, are not consistent 13 with that isolated observation of Mr Mogg. 14 RT REV OLIVER: Thank you. 15 THE CHAIRMAN: Thank you very much indeed. 16 Now, we will start again, not I think at 1.45. 17 I think we will have an hour. Will you tell Mr Kane he 18 will not be expected to speak until 2 o'clock, 19 Mr Donaghy? 20 MR DONAGHY: Yes. 21 THE CHAIRMAN: Right. 22 (1.00 pm) 23 (The luncheon adjournment) 24 (2.00 pm) 25 THE CHAIRMAN: Mr Kane? 112 1 MR KANE: My Lord, I understand I am to be interrupted one 2 final time from behind. 3 THE CHAIRMAN: One final time. Are you sure? 4 MR JOHNSON: Yes. I am very grateful to my learned friend. 5 I just wanted to add one comment to my Lord's question 6 on paragraph 879, and I apologise nor not spotting it 7 before. 8 THE CHAIRMAN: Are there any more changes? 9 MR JOHNSON: No. In fact, I am reversing a change. 10 THE CHAIRMAN: Ah! 11 MR JOHNSON: I conceded, I am told wrongly, that "breaches" 12 may be a better word than "failures". In fact, it may 13 be a better word, but it is not necessary to substitute 14 "breaches". That's because the word "failure" can and 15 should be understood in the sense of a breach or as the 16 opposite of success. 17 In other words, when we use the phrase "failure of 18 security", that should be distinguished from a "failing 19 in security". It simply means that the security 20 measures were not successful. 21 The reason I stand to make what may be a petty point 22 is that it may reflect elsewhere in the language we use 23 in our submissions. When we use the word "failing", 24 particularly in paragraph 4, we are referring to matters 25 that we accept are mistakes or errors or defects where 113 1 it would be open to the Panel to pass criticism, but 2 when we talk about a "failure of security", we simply 3 mean that the security measures that were in place were 4 not successful. It doesn't necessarily imply that there 5 was any defect, and we are sorry if the language we used 6 was ambiguous. 7 THE CHAIRMAN: That's it, is it? Thank you very much, 8 Mr Johnson. 9 Yes, Mr Kane? 10 MR KANE: My Lord, for reasons which may become apparent 11 could I ask that the clock not be started for just 12 a few moments? 13 THE CHAIRMAN: Yes. 14 MR KANE: My Lord, members of the Inquiry Panel, in my most 15 extravagant and emotional language I wish at the outset 16 to say a word of thanks to some people. 17 I would like to, on behalf of the Wright family and 18 the team representing them, thank all the Inquiry staff 19 in all departments and all the staff here at this 20 building for their courtesy and assistance, oftentimes 21 in situations where there may have been heightened 22 tensions and professional stress. 23 For the sake of the record also, because this is 24 a momentous Inquiry, and those who have helped I think 25 should be recorded, could I place on record our thanks 114 1 as a team to Mr McAtameny's staff, not least to 2 Mrs Karen Hasson, who was an additional solicitor to the 3 team, but also to Mr McAtameny's office staff, 4 Miss Helen Doherty, Miss Leanne Millar and 5 Miss Stacey McFetridge. My own secretary, 6 Mrs Wendy Wensley, who daily typed the summaries of 7 evidence is also due our deepest gratitude and also to 8 John. 9 Could I also say that we are also conscious of all 10 those honourable men and women belonging to the security 11 forces and Northern Ireland Prison Service who gave 12 their lives or were injured during the troubles and the 13 necessary criticism hereafter must be viewed within that 14 grateful recognition. 15 I am now in a position to commence, if perhaps the 16 clock -- 17 THE CHAIRMAN: The clock can be started now. 18 Submissions by MR KANE 19 for the WRIGHT FAMILY 20 MR KANE: I could start at this point. 21 Could I also say, as part of the record on that 22 note, that we, on behalf of the family, the Wright 23 family, wish to record the appreciation of the sterling 24 work of Mr Derek Batchelor QC, for the first three years 25 of the life of the Inquiry, and the Wright family also 115 1 wishes to record their unresolved and continued disquiet 2 at his resignation as announced by you, Mr Chairman, on 3 4 June 2008 to this Inquiry, and his own contradicting 4 public statements. 5 What I am about to say must be viewed in the light 6 of the written submissions which have already been 7 submitted to the Panel. 8 THE CHAIRMAN: Yes. 9 MR KANE: A diminutive gentleman, now ageing gracefully, 10 campaigned quietly but determinedly to find out the 11 circumstances of his son's murder. He has sat at this 12 Inquiry virtually every minute that it sat in public 13 session. In pursuit of the truth on 22 February 1999 14 David Wright indicated in his deposition to the coroner 15 conducting the inquest: 16 "It is my belief that Billy's murder was 17 State-arranged, State-sponsored and State-sanctioned in 18 collusion with some of those in prison management." 19 The Secretary of State met with David Wright and 20 others on 13 March to discuss his death. A briefing for 21 the Secretary of State's meeting with David Wright said 22 that: 23 "No doubt Mr Wright's ultimate objective will be to 24 get the Secretary of State to accede to a Public 25 Inquiry. He will probably realise that this is unlikely 116 1 to be agreed to." 2 How wrong that unelected, Mandarin-like official was 3 and how wrong will anyone else be who considers that 4 anything other than an outcome of truth from this 5 Inquiry will satisfy the Wright family against whom 6 a mammoth wrong has been perpetrated. 7 We place our trust and belief in this Panel to 8 report on the truth of what happened. 9 The matter progressed and during a debate in the 10 House of Commons on 19 June 2003, the Minister, 11 Jane Kennedy, had her attention drawn to a ruling of 12 Mr Justice Kerr, as he then was, that: 13 "A proper investigation into the death of 14 Billy Wright has not yet taken place and that Mr Wright 15 enjoyed a current right under Article 2 of the European 16 convention to an effective investigation of his son's 17 death." 18 The response from the Minister on behalf of the UK 19 Government was that: 20 "The Government's view was that the death had been 21 adequately investigated." 22 However, this Inquiry was established following the 23 Weston Park agreement between the Government of the 24 United Kingdom and the Irish Republic, which led to the 25 investigations under The Honourable Justice Peter Cory. 117 1 Subsequently this Inquiry was announced by the 2 Secretary of State, Mr Paul Murphy, on 16 November 2004. 3 On 30 May 2007 in my opening I reiterated that 4 Mr David Wright and his family have always made it clear 5 that they have a single, overriding desire of pursuit of 6 the full truth surrounding his son's death. I asked: 7 did the State have a hand in the murder of Billy Wright? 8 The terms of reference for this Inquiry have been 9 set out and they include: 10 "To inquire into the death of Billy Wright with 11 a view to determining whether any wrongful act or 12 omission by or within the prison authorities or other 13 State agencies facilitated his death, or whether 14 attempts were made to do so; whether any such act or 15 omission was intentional or negligent, and to make 16 recommendations." 17 The powers of the Inquiry under the 2005 18 Inquiries Act expressly provide in section 2 that: 19 "An Inquiry Panel is not to rule on and has no power 20 to determine any person's civil or criminal liability, 21 but an Inquiry Panel is not to be inhibited in the 22 discharge of its functions by any likelihood of 23 liability being inferred from facts that it determines 24 or recommendations that it makes." 25 Throughout the Inquiry there has been a repeated 118 1 aversion on behalf the certain interested parties to the 2 issue of negligence. The Wright family do not share, 3 nor do they understand, such a reluctance as having any 4 legal or factual basis. The terms of reference make the 5 functions perfectly clear. This is especially so given 6 the admission of liability which has already taken place 7 on the part of NIPS in an associated action by the 8 family in the High Court arising out of the death of 9 Billy Wright. 10 It is clear that section 2(2) has provision made for 11 this interpretation in its wording by an express 12 declaration to an Inquiry Panel that it is not to be 13 inhibited in the discharge of its functions or any 14 likelihood of liability being inferred from facts that 15 it determines or recommendations that it makes. Such 16 findings of civil or criminal liability are clearly 17 within the contemplated and perceived ambit of others. 18 We express our grave concern that a publicly funded 19 application for judicial review was attempted by staff 20 members of the Northern Ireland Prison Service. 21 The terms of reference are plain and clear. The 22 requirement is that the act or omission is to be 23 wrongful. This can be categorised as perhaps out of 24 order, contrary to morality, other than desired or 25 desirable, mistaken or in error. The requirement that 119 1 such act or omissions facilitated his death will include 2 the concept of making easy, allowing and failing to 3 obstruct. 4 For the avoidance of doubt, the State agencies 5 concerned and which the Wright family assert fall to be 6 agencies against whom adverse findings should be made 7 include the Northern Ireland Prison Service, the Royal 8 Ulster Constabulary, as it then was, the army and the 9 Security Services. 10 The right to life has existed long before the 11 incorporation of Article 2 of the European Convention 12 for the enactment of the 1998 Human Rights Act. 13 Billy Wright's life was entitled to the protection of 14 the common law, the statutory provisions of the 15 Prison Act and any rules or statutory rules flowing 16 therefrom. 17 Useful assistance which is commended to the Inquiry 18 Panel can be obtained from the considerations expressed 19 in the decision of Osman v The United Kingdom 20 Government, where in that case the court enjoins the 21 state to take appropriate steps to safeguard the lives 22 of those within its jurisdiction. 23 It went on to say that: 24 "Article 2 of the Convention may also imply in 25 certain well-defined circumstances a positive obligation 120 1 on the authorities to take preventive operational 2 measures to protect an individual whose life is at risk 3 from the criminal acts of another individual." 4 The court also said that: 5 "Where there is an allegation that the authorities 6 have violated their positive obligation to protect the 7 right of life, it must be established to its 8 satisfaction that the authorities knew or ought to have 9 known at the time of the existence of a real and 10 immediate risk and that they failed to take measures 11 within the scope of their powers which, judged 12 reasonably, might have been expected to avoid that 13 risk." 14 From the evidence available to the Inquiry for 15 consideration, it is the submission on behalf of the 16 Wright family that clear findings should be made against 17 State agencies that they failed to protect the life of 18 Billy Wright in the context of the knowledge they were 19 either possessed of or capable of obtaining relating to 20 the known and foreseeable threat to the life of 21 Billy Wright. 22 In its consideration of all the events involving 23 State agencies leading to his death, we consider that 24 there was palpable collusion on the part of those 25 previously mentioned agencies. The Panel is invited to 121 1 make determinations of collusion on facts before it and 2 such consequential recommendations that may be deemed 3 relevant and necessary. 4 Collusion has been defined in the Cory Report as: 5 "To conspire, to connive, to collaborate, to plot 6 and to scheme." 7 The Cory Report went on to define variously the verb 8 "connive" in a more detailed fashion and this is set out 9 at page 5 of our written submission. 10 Cory further stated that: 11 "There cannot be public confidence in a Government 12 agency that is guilty of collusion or connivance in 13 serious crimes. Because of the necessity for public 14 confidence in Government agencies, the definition of 15 'collusion' must be reasonably broad when it is applied 16 to their actions. That is to say Prison Services must 17 not act collusively by ignoring or turning a blind eye 18 to the wrongful acts of their officers or their servants 19 or agents, nor can any Government agency act collusively 20 by failing to supply to Prison Services reasonably 21 reliable information they have received, which indicates 22 that a dangerous situation has or is likely to arise 23 within a prison. Any lesser definition would have the 24 effect of condoning or even encouraging State 25 involvement in crimes, thereby shattering all public 122 1 confidence in important public agencies." 2 The report also indicated that it was necessary to 3 examine collusive acts which may have indirectly 4 contributed to the killing by generally facilitating or 5 encouraging or turning a blind eye to the actions or 6 behaviour of the INLA prisoners. 7 The Wright family commends the approach taken by 8 Mr Justice Cory to this Inquiry Panel. For the 9 avoidance of doubt, collusive conduct would have 10 facilitated the death of Billy Wright. Conduct less 11 than collusion also would have facilitated his death. 12 We also say that assistance can be had from the 13 Enquiry 3 report. We will remember that the 14 Stevens Enquiry was funded by the PSNI. That report 15 highlighted collusion as: 16 "The wilful failure to keep records, the absence of 17 accountability, the withholding of intelligence and 18 evidence, and the extreme of agents being involved in 19 murder. The serious acts and omissions have meant that 20 people have been killed or seriously injured." 21 Similarly, the report highlighted a trend, 22 unfortunately not absent in the course of this Inquiry, 23 of full and proper disclosure not being afforded to the 24 Stevens team. 25 Many, if not all, of the characteristics of 123 1 collusion set out in the Stevens Enquiry 3 report exist 2 on the part of the State agencies concerned. Further 3 aid is available from the Operation Ballast report from 4 the office of the Police Ombudsman for Northern Ireland, 5 which covers a number of killings spanning a period from 6 1991 until 2000. 7 The report referred to behaviour termed as collusion 8 in the following areas and of particular resonance with 9 events disclosed in this Inquiry was the withholding of 10 information from the CID that the paramilitary 11 organisation in that report had sanctioned an attack, 12 and by not informing local police of an anticipated 13 attack, and not taking any action to prevent that 14 attack. 15 Those conclusions found that many of the failings 16 identified were systemic with serious implications when 17 Special Branch systems for information management, 18 dissemination and retention were seriously defective. 19 Handlers and controllers were found to determine what 20 information went into such systems as did exist. Those 21 systems were described as not effective. There was 22 evidence of information being withheld by handlers. 23 Matters were deliberately not recorded. Senior Officers 24 could not be held to account because of an absence of 25 records and it was concluded that this was a deliberate 124 1 strategy which had the effect of avoiding proper 2 accountability. 3 Former ACC Sam Kincaid described the situation as 4 one of "plausible deniability". The Wright family 5 commend many of the analytical insights of Mr Kincaid's 6 evidence to this Inquiry. 7 Of alarming relevance was the evidence given by 8 Mr Vincent McFadden, former Detective Chief 9 Superintendent, member of the Stevens Enquiry team. 217 10 cases of threats to life reported by a single agent over 11 a period of five years between 1985 and 1990 had not 12 been passed on. Some of the 217 had been the subject of 13 multiple threats and a number of individuals were shot 14 and killed or wounded. 15 He confirmed that agents had heavily infiltrated all 16 the major paramilitary organisations, including INLA, 17 but the Special Branch had been behaving improperly 18 during that period but, he conceded, in an even-handed 19 way between both communities. 20 Misconduct, he also stated, included the army and 21 the FRU. There were systematic failures to record 22 threats in the threat book. There was a failure to act 23 upon intelligence, and this was not only on the part of 24 the RUC, but also the Security Services. It was 25 a situation that no action was being taken on the type 125 1 of information contained in SS01-0218 in this Inquiry 2 and that that would be consistent with failures that had 3 previously been identified relating to the RUC. 4 The culture exposed by his report still existed, he 5 said, throughout the 1990s and at the time of 6 Billy Wright's murder. He said there was a duty on 7 agents, if they became aware of an impending murder, to 8 come forward from that information, and that there 9 should be a system in place to ensure that this was done 10 and, secondly, there would be an investigation to ensure 11 that, if this was not done, it would be investigated and 12 appropriate action taken. 13 The culture of misconduct represented a mindset that 14 these State agencies were "Fighting a war" and that "All 15 is fair in love and war". In answer to a question 16 whether or not State agencies were taking action against 17 people from paramilitary backgrounds who were regarded 18 as legitimate targets, he responded that, "There was 19 a clear taking of sides". 20 Throughout the course of the evidence to this 21 Inquiry, many senior politicians, senior civil servants, 22 senior police officers, academics and others expressed 23 incredulity that the same type of collusive activity 24 which Mr McFadden outlined could have taken place in the 25 context of the murder of Billy Wright. 126 1 We say, however, in light of all of the facts 2 surrounding these issues, throughout the course of this 3 Inquiry, there is an irresistible finding of collusion 4 and facilitating on the part of State agencies, which we 5 say must form part of the Inquiry's final 6 determinations. 7 Billy Wright was just 37 years old when he was 8 murdered. He was already well-known in Northern Ireland 9 as one of the main Loyalist paramilitaries. The IRA 10 were reported to have made six attempts to kill him. He 11 was described by a Special Branch witness as a major 12 player in the Loyalist paramilitary world for a number 13 of years. The LVF, according to DO1, in June of 1997 14 had expanded beyond its core membership in Portadown and 15 numbered about 40 or 50 members, including some 16 experienced and committed terrorists. 17 The Security Service assessed that the LVF had 18 access to sufficient weapons to mount a campaign of 19 sectarian shootings. It was the calibre of these 20 terrorists rather than their numbers that concerned the 21 Security Services. 22 The Wright family submit the Government's priority 23 at that time was to nurse the peace process to 24 a successful conclusion in all-party talks as their 25 priority was to keep bombs out of London. Anything or 127 1 anyone who stood in the way of that objective was 2 a dissident and an opponent of the Government. That was 3 Billy Wright. It was his potential to first destabilise 4 and then destroy that process by provoking the IRA to 5 return to violence that made him a target for the 6 Government and its intelligence agencies, RUC Special 7 Branch and the Security Services. 8 It was those organisations who were charged with 9 protecting the interests of the State, which meant being 10 at war with those thought to be behaving inimically to 11 those interests. As part of that responsibility, those 12 organisations were also charged with combating any 13 paramilitary opposition by fair means or foul and the 14 family will say subsequent events will show that those 15 means were most assuredly foul and amounted to collusion 16 between the State and those who murdered Billy Wright. 17 He was already so controversial a figure that 18 a Chief Constable of the RUC, Sir Hugh Annesley, said: 19 "It is just a question of who gets to the bastard 20 first; us, the IRA or the UVF. You can take your pick." 21 He admitted that: 22 "It is not impossible I said these words, but in 23 a private and unattributable form", thereby revealing 24 the obvious hostility among those in high places towards 25 Billy Wright. 128 1 Wright had been centrally involved in the stand-off 2 of the RUC at Drumcree in July 1996. It is recorded 3 that Loyalist paramilitary involvement in the 4 disturbances was coordinated by Wright. The RUC 5 subsequently executed a humiliating U-turn and allowed 6 the march down the road in the face of furious 7 Nationalist protest. The activities of Wright were 8 clearly capable of destabilising the peace process. The 9 peace process may have survived on that occasion, but it 10 could not withstand many such buffetings and certainly 11 the awesome prospect of a similar situation in 12 July 1997. 13 A week before the Drumcree U-turn, the RUC prepared 14 to mount an eavesdropping operation against Wright and 15 as part of their request for approval stated that: 16 "The activities of Wright are capable of inflicting 17 significant damage on the peace process." 18 During the Inquiry, many witnesses from the 19 political, academic and security permanent establishment 20 sought to dilute any suggestion that Loyalist 21 paramilitaries in general, and Billy Wright in 22 particular, threatened the peace process, its stability 23 and progress. 24 Billy Wright was not a political pygmy. 25 Christopher Maccabe, NIO political Director, denied the 129 1 suggestion adamantly maintaining that during the 1996 2 summary: 3 "The political process was not in jeopardy." 4 However, John Major's meeting with Loyalist 5 paramilitaries in Downing Street on 22 July 1996 was 6 recorded as follows: 7 "Meanwhile, the peace process was in jeopardy 8 because of the two setbacks of the IRA ceasefire and 9 Drumcree." 10 On 7 October 1996 Mo Mowlam visited HMP Maze to 11 "keep the talks process alive". Immediately following 12 Billy Wright's murder Senator George Mitchell, 13 co-chairman of the talks processes, indicated that the 14 peace process hung by a thread. 15 On 12 November 1997, six weeks prior to the murder, 16 the Cabinet Joint Intelligence Committee was briefed to 17 the effect that, "The LVF remains a threat, not least 18 because of the experience and commitment of its leading 19 members." 20 Senior official HAG confirmed Billy Wright was 21 "a concern for Her Majesty's Government in that period 22 of time". 23 Earlier in March of 1997, the Wright problem had 24 troubled the Government. HAG also said that anything 25 that showed Billy Wright was in the process of building 130 1 a capable terrorist organisation and attracting support 2 from the mainstream organisations would have been 3 a concern to the Government." 4 It is interesting to note that the degree of concern 5 surrounding Billy Wright while a prisoner manifested 6 itself in the chief executive of NIPS, HAG and a senior 7 Special Branch Officer attempting to secure the 8 electronic surveillance of Billy Wright while at visits 9 in the prison, because it was suggested that he was 10 suspected of orchestrating and directing LVF terrorism 11 without the prison fence at that time in September 1997. 12 In a chilling echo, McWilliams, one of his killers, 13 claimed in similar terms immediately following the 14 murder: 15 "Billy Wright was executed for one reason and one 16 reason only, and that was for directing and raging his 17 campaign of terror against the Nationalist people from 18 his prison cell." 19 The Wright family maintain the sentence of eight 20 years imposed on Billy Wright at this time was excessive 21 and out of all proportion to the offence he was alleged 22 to have committed. Professor English even acknowledged 23 that eyebrows were raised about the length of sentence. 24 An appeal against conviction and sentence was 25 lodged, not heard, before Billy Wright's murder. 131 1 Whatever the outcome of the appeal, the fact that 2 Billy Wright was a criminal or not would not justify the 3 failures or conduct of State agencies towards him, nor 4 serve to detract from his right to life. Such a mindset 5 has no place within the ambit of this Inquiry's 6 deliberations. 7 In November 1997, the Security Services assessed 8 Loyalist paramilitaries, stating: 9 "The main threat comes from the 20 or 30 experienced 10 terrorists in the Loyalist Volunteer Force." 11 That same month, Wright was building a link to the 12 most significant UDA leader at that time, Johnny Adair. 13 That showed that he was beginning to attract support 14 from a mainstream organisation. The nightmare scenario 15 for the Government in 1998 would have been Billy Wright 16 breaking out of his regional base and becoming 17 a province-wide terrorist threat to the peace process, 18 forming an alliance with the largest Loyalist 19 paramilitary faction and confronting the IRA, forcing 20 the collapse of their ceasefire as well as the ruination 21 of short and long-term Government policy. 22 The bond between these two Loyalist figures was 23 confirmed after Wright's death when the unit of the UDA 24 under Adair's command carried out a number of 25 retaliatory attacks. Quis separabit? 132 1 It is no coincidence, is it, that, a month after the 2 Security Services' assessment in November 1997 of the 3 emerging LVF threat, Billy Wright was dead? 4 It will be claimed by the State that the murder of 5 Wright did not serve their purposes as it nearly 6 destroyed the peace process they were seeking to 7 bolster. We say that that argument is facile. We say 8 it was the potential of Billy Wright, if he had 9 continued to live and attract mainstream Loyalist 10 support, that concerned the Government. 11 The family will say that the assessment of the State 12 was, although there would be some repercussions from the 13 murder of Billy Wright in December 1997, they felt the 14 aftermath would be short-lived, could be managed and 15 fairly quickly the peace process would prevail and be 16 stronger for the removal of such a dangerous opponent 17 whose strength seemed to be increasing. 18 As Christopher McWilliams himself stated in 19 a Newsnight interview: 20 "I believe the murder of Billy Wright struck a blow 21 for the peace process." 22 The Wright family are of the clear view, a view 23 strengthened by the evidence before the Inquiry, that 24 Billy Wright was a fatality of the so-called peace 25 process. 133 1 It is not necessary for this Inquiry to determine if 2 Billy Wright was the biggest obstacle to the peace 3 process before it can make a finding of collusion or 4 facilitating. The Stevens' experience clearly indicates 5 that collusion does not always occur with high profile 6 victims. It can and has happened with people who have 7 little or no public persona. It is simply appropriate 8 to note that he, Billy Wright, was a Loyalist dissident 9 opposed to Government policy, who was murdered in 10 a State prison in extraordinary circumstances before 11 deciding if the facts of the case merit a finding of 12 collusion or facilitating. 13 In the nostrils of many in Northern Ireland the 14 publicly-known circumstances of Billy Wright's murder 15 stink to the high heavens. The Inquiry process has 16 served well to uncover the source as decomposing State 17 conduct at high levels of State agencies in 18 Northern Ireland. 19 The Wright family will say that the hostility of the 20 RUC towards Billy Wright could be gauged by the wholly 21 unsatisfactory investigation into his murder. The three 22 killers gave themselves up. It required no proper 23 investigation to put them on trial. However, what was 24 revealed by Detective Chief Inspector Noel Nicholl was 25 that Special Branch did not pass him any information at 134 1 all during the murder investigation. 2 The final confirmation came with the news that 3 Special Branch did not even know, until 2007, that 4 contained within their computer files was a document 5 dating back to April 1997 giving advance warning of the 6 murder plot. It confirmed that nobody in the RUC 7 Special Branch had bothered to check their own 8 intelligence records at the time of the murder, showing 9 their lack of concern about Billy Wright's murder. 10 The Wright family firmly believe that what has been 11 revealed during this Inquiry is devastating evidence of 12 State collusion in the murder of Billy Wright. This was 13 a situation where the State knew his murder was going to 14 take place and looked the other way as it was plotted 15 and executed. That, by anyone's definition, is shameful 16 collusion and facilitating of his death. 17 If I could now move to a chapter dealing with 18 document recovery. The Inquiry held a six-day 19 preliminary hearing to deal with the nature or the form 20 of the documentary evidence recovered from the 21 Northern Ireland Prison Service and, secondly, to 22 address the question of potentially relevant documents 23 that appear no longer to be available. 24 The Inquiry was also to look at the destruction of 25 relevant documentation that had occurred and it was to 135 1 examine whether such destruction had been carried out 2 according to the destruction policy in place at the 3 time. 4 The importance of intelligence information was set 5 out in Mr Batchelor's closing (sic) submissions on 6 Day 6, when he said: 7 "It is relevant to the decisions to transfer not 8 only Billy Wright and the LVF to the Maze Prison in 9 April 1997, but also subsequently to transfer his INLA 10 killers. It is relevant to the decision to house and to 11 continue to house the LVF and the INLA in the same 12 H Block, and it is relevant also to procedures for 13 searches, for visits, for breaches of physical security, 14 relevant to the extent of knowledge of NIPS' senior 15 management on issues such as the likely vulnerability of 16 the rules and to what was known or could have been 17 determined in the prison about an INLA plot to kill 18 Billy Wright." 19 The security information report or SIR was 20 a fundamental security and intelligence document. There 21 were two versions of the SIR, a hard copy version and 22 a computerised version known as SASHA. Governor Treacy 23 said handwritten SIRs had disappeared by December 1997 24 and that only SASHA entries were available for the Maze 25 so far as 1997 was concerned. Both oral evidence and 136 1 documentary evidence appear to contradict that 2 assertion. 3 Alan Craig and Brian Barlow's evidence was 4 challenging, but most telling is the paper written by 5 Steve Davis to Martin Mogg dated 28 October 1997, which 6 refers to the paper system running alongside the SASHA 7 computer system. 8 There is a difference between the content of the 9 written SIRs and the SASHA documents, in that the SASHA 10 documents did not contain any background information, 11 analysis or record of action taken. 12 This has led to the Inquiry only having 13 an abbreviated version, lacking all of the intelligence 14 that would have been available otherwise. This, 15 therefore, presents a difficulty in being able to obtain 16 the full picture as to just what was going on in the 17 Maze from April 1997 until December 1997, a vital time 18 for them. 19 Prisoners' security files or documents that would 20 have been of great importance to this Inquiry. SIRs 21 would go into the prisoner security files as would any 22 information of intelligence interest relating to 23 a prisoner. Examples of such intelligence would include 24 threat information. 25 The Inquiry has been left in a position where it 137 1 cannot be sure that it has all of the relevant 2 intelligence information pertaining to prisoners on the 3 basis that nearly all prisoner security files had been 4 destroyed. 5 An example that brings us into sharp focus appears 6 within the contents of one of the few prisoner security 7 files that was not destroyed belonging to John Glennon, 8 one of Billy Wright's killers. This file contained 9 a reference to ex-Maghaberry Prisoner number 1 suspected 10 of supplying McWilliams with a gun earlier. Smuggling 11 same through visits in a hollowed-out pair of training 12 shoes. 13 The prisoner security file relating to that prisoner 14 which the Inquiry was interested in seeing has been 15 destroyed. This demonstrates cross-referencing between 16 prisoners on intelligence issues being usefully 17 employed. This, therefore, is an example of vital 18 information going to the heart of the issues that this 19 Inquiry has to deal with that have simply been 20 destroyed. 21 It is, therefore, very reasonable to ask the 22 question: what other materials would have been available 23 in the prisoner security files that have been destroyed? 24 The Northern Ireland Prison Service had a specific 25 retention and disposal of prisoners' records policy 138 1 which had existed since 19 May 1997. This document set 2 out the background to the involvement of the Public 3 Record Office of Northern Ireland, PRONI, who became 4 aware, at the end of 1995, that prisoner files were 5 being destroyed and that such destruction should not 6 take place without reference to them. 7 Clarification to the policy occurred in 8 September 2000 with an explanatory note relating to the 9 policy being sent to Martin Mogg. The note made it 10 clear that: 11 "Under no circumstances must prisoners' records be 12 destroyed." 13 This was to be brought to the attention of staff 14 working in the area, who should have had no doubts 15 whatsoever as to what their duties and obligations were 16 in relation to prisoner records. 17 The preponderance of the evidence indicates the 18 prisoner security files were destroyed in January or 19 February 2002. The destruction of these files was 20 allegedly ordered by Martin Mogg at a meeting attended 21 by Martin Mogg, Maureen Johnson sand Richard Malloy. 22 It is alleged by Maureen Johnson that Mr Mogg gave 23 the Freedom of Information Act and the Data Protection 24 Act as the reasons. Richard Malloy believed that no 25 reason was given for the destruction of the files. 139 1 Prisons are entitled to hold information on prisoners 2 and NIPS did not start considering the Freedom of 3 Information Act until November 2003. 4 Explanations allegedly given by Mr Mogg are not 5 sustainable. Mr Mogg had recently been dealing with the 6 destruction policy which had been clearly set out, as 7 well as having been copied into the NIPS' 8 recommendations to the Secretary of State relating to 9 the Cory investigation, and, therefore, would and should 10 have been fully aware that no prisoner files should have 11 been destroyed at that stage. 12 Extraordinarily, Maureen Johnson claimed that she 13 was not aware of the destruction policy within NIPS, but 14 this must stand against the requirement that the policy 15 relating to the retention and disposal of prisoner 16 records was to have been brought to the attention of 17 staff working in this area. 18 Maureen Johnson must, therefore, be the subject of 19 some criticism for her failure to follow the destruction 20 policy of which she should have been aware in the first 21 place, and thereafter for not following normal procedure 22 in noting which files were being destroyed. Both 23 Maureen Johnson and Richard Malloy were not able to 24 explain why the Security Governor at the Maze at that 25 time, Governor McNally, was not informed about the 140 1 process that was going on at that time. 2 Any excuse sought on the basis of lack of training 3 is a further indictment on the Northern Ireland 4 Prison Service. 5 All of this has led to a major deficiency in 6 relation to the material which should have been before 7 this Inquiry. It can be seen that the Northern Ireland 8 Prison Service destroyed all of the security 9 intelligence files from prisoners in the Maze during the 10 entire period of Northern Ireland's troubles. This 11 destruction took place after the Weston Park agreement, 12 which led to the setting-up of this Inquiry. 13 The destruction of these documents was in 14 contravention of the policy. It was also contrary to 15 an agreement that NIPS had with the Public Records 16 Office. There was no written authorisation for this 17 destruction, nor was there any audit trail left showing 18 that the destruction had taken place or just exactly 19 what had been destroyed. 20 Further destruction of prison documents took place 21 in 2003 and onwards. A considerable number of document 22 were destroyed in 2004 over several weeks. Security 23 records other than the security prisoner files were 24 removed from the Maze in the middle of 2003 and taken to 25 a cage in Maghaberry Security Department. The 141 1 substantial majority of those files were then destroyed 2 under the general supervision of Ian Johnston. The only 3 specific instruction was to put to the side any files 4 that they thought were notable. No specific definition 5 appears to have been given. 6 This sifting process resulted in only a small number 7 of files being set aside. This unstructured destruction 8 process has deprived the Inquiry of potentially vital 9 documentation relating to the issues that the Inquiry 10 has to investigate. This conduct represents either 11 a casual ambivalence to what was taking place or 12 a deliberate engagement in a calculated purging of NIPS' 13 documentation to which there was a clearly attached 14 security, political, historical and legal significance, 15 given the time periods involved. 16 It should be noted that a request had been made by 17 the Northern Ireland Human Rights Commission on 18 9 February 2001 to the Director General of NIPS seeking 19 the disclosure of documents pertinent to the 20 Billy Wright case. Also, a letter from John McAtameny 21 in April 2001 to NIPS' Headquarters requested that in 22 relation to the murder of Billy Wright all documentation 23 held by the Prison Service in relation to this matter is 24 preserved. 25 This resulted in a response from NIPS dated 142 1 14 September 2001 where it was confirmed that: 2 "All documentation held in relation to the 3 circumstances of the death of Billy Wright had been 4 located and would be reserved for any possible future 5 investigation." 6 The Weston Park agreement had been reached in 7 July 2001 and was published in August 2001. This was 8 a commitment to undertake a thorough investigation of 9 allegations of collusion which included the case of 10 Billy Wright. 11 Thereafter, the Secretary of State announced that: 12 "The Government is therefore committed to 13 an investigation by an international judge." 14 On 19 December 2001 this was copied to both 15 Douglas Bain and Martin Mogg. It is, therefore, very 16 clear at this stage that a thorough investigation was to 17 take place and it would follow from that that all 18 relevant documentation would be required. Legal advice 19 given by [name redacted] on 13 September 2001 was very clear 20 and pertinent, insisting that documents be retained. 21 It should also be noted that Douglas Bain denied 22 having any knowledge whatsoever in relation to the 23 destruction of prisoner security files, and: 24 "I neither then or at any time since have any 25 knowledge of the destruction of security files at the 143 1 Maze, Maghaberry or anywhere else." 2 This was shown to be factually inaccurate when 3 previous evidence given by Richard Malloy on Day 4 4 referred to an e-mail dated 6 May 2004, which showed 5 that Douglas Bain, amongst others, had knowledge the 6 security files had been destroyed. It is stated: 7 "The prisoners' security files were destroyed by 8 security." 9 The same e-mail also revealed that the red books of 10 prisoners were destroyed. This is one area in which 11 Mr Bain must be the subject of criticism. 12 It is of note that NIPS in October 2005 were denying 13 that there were any security files. Further, 14 an explanation was offered as to the contents of 15 security files. Both of these matters were found to be 16 incorrect, as discovered when the Inquiry found the 17 prisoner security file from John Glennon which I have 18 already mentioned. 19 The Inquiry issued a number of calls. There were 20 noted deficiencies in relation to a variety of the calls 21 that were made. These details are set out at page 53 of 22 our written submission. 23 The question may be asked: what document destruction 24 and retention policies existed within NIPS? This was 25 clearly set out in call 44 and call 45 in the Inquiry's 144 1 notice for the production of documents. NIPS provided 2 a relevant file pertaining to destruction policy, 3 file 469/02. It is important, however, to note that 4 this production was only made after a whistle-blower had 5 revealed the existence of legal advice provided to 6 Douglas Bain on this issue. When details of calls 44 7 and 45 were put to Douglas Bain, his position was to 8 agree entirely that the contents of this file clearly 9 fell within the remit of call 44 and call 45. 10 It is of note that in spite of this clear admission 11 by Douglas Bain about the relevance of this file to 12 calls 44 and 45, NIPS maintained the position that the 13 file in question was checked on at least two occasions 14 and considered not to be relevant to the case that had 15 been made. 16 It is submitted that this is not a satisfactory 17 response and that NIPS should be the subject of 18 criticism in that regard. If this was the relevant test 19 applied by NIPS, then the Inquiry inferentially has been 20 deprived of many other documents by NIPS. Douglas Bain, 21 in light of his acceptance of the relevance of calls 44 22 and 45 to this file should also be the subject of 23 further criticism, in that he was directly involved in 24 this process. 25 The absence of such documentation has made the 145 1 entire process of enquiring into the murder of 2 Billy Wright more difficult. The very clear duties and 3 obligations that NIPS had made it clear that all 4 relevant documentation pertaining to the Maze and 5 pertaining to Billy Wright should have been available 6 for this Inquiry. The absence of such material, it is 7 submitted, should lead the Inquiry to draw adverse 8 inferences in relation to the approach taken by NIPS. 9 A quotation from [name redacted] in his advice to Mr Bain of 10 21 September 2001 should be borne in mind as apposite: 11 "There is a wider helicopter view to be taken that 12 encompasses concerns for the Prison Service's 13 reputation. If we are discovered destroying documents 14 for expediency to avoid embarrassment, our credibility 15 will be shattered." 16 We submit that that quotation has proved to be very 17 prescient. 18 Almost five years ago, on 1 October 2004, the 19 Secretary of State wrote to Mr Wright stating: 20 "I can assure you that we are not trying to suppress 21 the truth or the circumstances of the murder of 22 Billy Wright in any way. The Government will disclose 23 all relevant documents to the Inquiry and the Inquiry 24 will then take decisions about access to the documents. 25 I understand that you have doubts about the Government's 146 1 good faith in this respect." 2 Two years ago I reminded the Inquiry of this 3 assurance in my opening. Today, regrettably, it appears 4 to the Wright family that, even after so much time and 5 effort, such an assurance rings hollow as far as 6 document production generally has been concerned. The 7 good faith asserted must be tempered by the reality that 8 faith without works is dead. 9 I would now like to move to the events of the day of 10 Mr Wright's murder, which is contained in chapter 2. 11 Billy Wright was to have a morning visit on Saturday, 12 27 December 1997. Previously he received Saturday 13 visits, but never in the morning. This was a highly 14 unusual event among a series of notable and unusual 15 events which culminated in his murder. 16 Those unusual events which are notable and are 17 circumstances to be noted include: paragraph 1. 18 A headcount and cell check was alleged to have taken 19 place on that morning. Other checks that should have 20 been carried out on that morning including the checking 21 of the fences and the yards, this was not done, as 22 confirmed by Officer David Hanna. 23 2. It can be seen that the hole in the H6A catwalk 24 fence appears to have been cut on Christmas night, but 25 there was no effective system of actually checking the 147 1 fences, thereby leaving this hole undetected. 2 3. Set against this, the INLA turnstile was opened 3 at about 8.30 am, whereas in the morning in question the 4 LVF yards were not opened, despite repeated requests on 5 the part of an LVF prisoner to open them. 6 The LVF yard was normally opened at about 8 o'clock. 7 It was not opened before Billy Wright was murdered, 8 another highly unusual event. 9 4. John Glennon was observed at about 9 o'clock 10 that morning painting or touching up a wall mural 11 located about 5 or 6 feet away from the grille close to 12 the circle. 13 5. A name was shouted down the LVF wings which 14 would have been audible where John Glennon was located. 15 6. It was about this time that Officer Hill had 16 been stood down from the A/B watchtower from the first 17 time, although he was to return back up the watchtower 18 shortly thereafter. He was summoned down from the 19 watchtower a second time, resulting in a number of 20 meetings and debates, the issue being resolved at about 21 9.30. Officer Hill, despite the resolution of the 22 watchtower issue at 9.30, did not reach the watchtower 23 before the murder took place, thereby depriving 24 Billy Wright of a vital security measure and means of 25 warning that should have been in place at the time. 148 1 7. The white van that the LVF always used was 2 parked close to the INLA block, which was not the normal 3 custom. 4 The circumstances of the morning were that 5 Billy Wright, Norman Green and Witness ZBY got into the 6 rear of the white LVF van. The van then proceeded to 7 move off words the main gate. Officer Seaward had 8 opened the first gate and was in the process of opening 9 the second gate when he noticed someone on the roof of 10 A wing, this person being Christopher McWilliams. 11 McWilliams jumped down into the yard and then ran round 12 the front of the van to the passenger door, now 13 brandishing a gun. John Park, the LVF driver, said, "He 14 was pointing the gun at me. I was still moving forward 15 and I was going to accelerate through the gates, but 16 I saw John Seaward close them again." 17 Christopher McWilliams opened the sliding door of 18 the van. The scene was described by Norman Green: 19 "Billy was fighting but I could not see who he was 20 fighting with, due to my position on the floor. After 21 five or six shots, Billy fell back on to his legs. 22 I picked Billy's head up into my arms. I talked to him 23 and tried to comfort him. 24 "I returned to the Transit and wiped some blood away 25 from the side of his mouth and tried to give him the 149 1 kiss of life." 2 Norman Cubie(?) had observed the three members of 3 the INLA murder gang in the forecourt, with two of them 4 being at the side door. John Park then observed three 5 members of the INLA murder gang go back across the roof 6 to head back into the INLA block. Witness ZBY, the LVF 7 escort, proceeded to get out of the van, probably 8 stepping over the dying body of Billy Wright, abandoning 9 both Norman Green and Billy Wright in the van. The 10 Immediate Reaction Force were mobilised and arrived at 11 H6 within two minutes. Witness Y described how 12 Billy Wright's left hand appeared to twitch or move, and 13 the officer who was along with him jumped straight in 14 and started giving him CPR. 15 Billy Wright was confirmed as dead at 10.53.00 am. 16 The weapons were indeed eventually handed out in a box 17 which contained two guns, a pair of wire-cutters, which 18 included parts of legs of furniture, a jumble of rags 19 and shoelaces. It is of note that when the guns were 20 tested, one of them was found not to be working. 21 Could NP14-3552, please, be shown on screen? Could 22 the entry at 14.40 please be highlighted? This is the 23 Principal/Senior Officer's journal for the day of Billy 24 Wright's murder. At 14.40 it is recorded: 25 "Movement of INLA prisoners from H6 to H3 150 1 commenced." 2 My Lord, members of this Inquiry Panel, the question 3 could be asked what happened to the precious prison 4 policies? Where did the pre-eminence of the pound and 5 the overarching primacy of politics disappear to when 6 such a move became so easy. 7 Within 2 hours and 40 minutes those bloodstained 8 shibboleths marched from H6 to H3. That journal entry 9 by itself is a damning indictment of all those who 10 allowed, contributed to, or acquiesced in the 11 co-location of Billy Wright with his murderers in 12 HMP Maze. 13 May shame forever haunt those involved in this event 14 if an adverse determination is made by this Inquiry. 15 If the portion could now be taken from the screen. 16 Thank you. 17 Two guns were used in the murder of Billy Wright on 18 27 December 1997. How were such guns smuggled in? Did 19 the authorities have any knowledge as to the presence of 20 guns in H6 prior to then? 21 It would appear from the evidence heard that it was 22 possible to get a gun through a metal detector system if 23 it was broken down and placed into the heel of a shoe. 24 Visits were identified as being the most logical 25 possibility. Of interest, Mr Duffy of the POA had 151 1 raised the issue of problems with metal detectors with 2 management and that they could not be relied upon. 3 A number of different sources were considered. One 4 of the possibilities was warders, although this issue 5 was never resolved in evidence. When questioned about 6 the relevant source report, Witness AH indicated that 7 this was not his source. At SS01-0309 there was 8 a report that three warders who had INLA sympathies had 9 smuggled the firearms into the prison some six weeks 10 previously. 11 It is of note that Christopher McWilliams was not 12 forthcoming as to the method by which the guns were 13 smuggled in. 14 It should also be remembered that it appears that 15 the person who previously smuggled in weapons for 16 McWilliams was a Special Branch informer, but it should 17 be noted that no details of the methodology involved 18 were obtained and addressed either contemporaneously or 19 since. 20 There is a contentious issue in relation to what 21 knowledge, if any, the prison authorities had about the 22 presence of weapons in H6 before the murder of 23 Billy Wright. John Seaward gave an account of a heated 24 meeting that took place between Governor Mogg, 25 Governor Crompton and 2-IC INLA on 18 December 1997 in 152 1 H6. Mr Seaward recounted hearing a heated meeting 2 taking place, after which the 2-IC came out and said, 3 "They think we have a gun". 4 This was denied by Governor Crompton, but he had no 5 memory of the meeting. It is clear that the meeting did 6 take place, as can be seen from Governor Crompton's 7 diary and the PO journal. Ken McCamley described such 8 a meeting as "most unusual". 9 It will be ultimately for the Inquiry to determine 10 whether or not this was said, balancing 11 Governor Crompton's lack of memory with Mr Seaward's 12 firm recollection of what was said. It could be 13 rhetorically asked why such an unusual meeting should 14 occur in the first place and, secondly, why such 15 an incidental comment should be made and overheard in 16 such a context. 17 Our submission is that, on the balance of 18 probabilities, the events described above took place and 19 that NIPS were fixed with knowledge of a suspicion that 20 a firearm was in the INLA H6 Block, but failed to take 21 any positive action to either find it or protect 22 adequately the most likely intended victim. 23 It was suggested in oral submissions that really the 24 presence of firearms and ammunition does not necessarily 25 point to a breach of control and security. No doubt 153 1 neither did Michael Fagan's entrance into Her Majesty's 2 bedroom represent a breach of control and security. 3 The fact that weapons were smuggled in was 4 a complete and unforgivable breakdown of security on the 5 part of the prison, especially against the background of 6 complaints about visits, complaints about the Rapiscan 7 system, the findings of Governor Davis that the most 8 logical possibility for smuggling guns in was through 9 visits, and the failure to implement a proper system of 10 searching after visits in light of the previous incident 11 where guns were smuggled into Her Majesty's Prison 12 Maghaberry. 13 Given that experience, of all places which ought to 14 have received specific scrutiny and attention, then H6, 15 containing the previous firearms perpetrators, ought to 16 have been the prime target. NIPS should be the subject 17 of criticism by the Inquiry on this entire issue, which 18 clearly facilitated the murder of Billy Wright. 19 Dealing with the hole in the fence, 20 Christopher McWilliams stated in an interview with 21 Newsnight that: 22 "The fence was cut on Christmas night." 23 On closer examination of the documents in question 24 and oral evidence, it becomes clear that there was every 25 possibility that the hole in the fence was cut on 154 1 Christmas night as stated. 2 In no way should there ever have been a hole in the 3 catwalk fence, let alone one which seems to have been in 4 existence for such a long duration. The presence of 5 this hole contributed directly to the murder of 6 Billy Wright, in that it facilitated a quick and easy 7 access onto the block roofs. Accordingly, NIPS should 8 be the subject of the most severe criticism for allowing 9 this situation to have not only occurred, but to have 10 been in existence for such a period of time. Further 11 details are set out on pages 24 and 25 of our written 12 submission. 13 Visits lists. From all the evidence it would appear 14 that what can be said is that a visitors list for the 15 LVF was changed after it had been sent up by 16 Jacqueline Townsend to H6. It is of importance that 17 both lists contained a mixture of LVF and INLA 18 prisoners. The provision of such a list to the LVF, 19 therefore, notified them of the fact that certain INLA 20 prisoners were receiving visits on 27 December 1997. 21 This was a serious breach of security. Narey and Cory 22 concluded that probably mixed lists were given to both 23 factions. It is probable that the INLA received details 24 about the fact that Billy Wright was going to receive 25 a visit on 27 December 1997. It is submitted that such 155 1 information would have allowed the INLA to be sure that 2 Billy Wright was going to receive such a visit. 3 Such information would, therefore, have allowed INLA 4 to plan for the execution of their plot to murder him. 5 Documents also showed a similar security breach, in that 6 the INLA had previously received such a list containing 7 the names of two LVF prisoners some weeks previously on 8 13th December 1997. 9 It can therefore shall seen that the INLA could well 10 have had advance warning that Billy Wright was to take 11 a visit on Saturday, 27 December, and the immediacy of 12 that visit was brought into sharp focus by the shout for 13 Billy Wright's visit that morning. These represent 14 security deficits which invite adverse determination by 15 this Inquiry in that they facilitated the end of 16 Billy Wright. 17 Fabric checks carried out in H6. If regard was only 18 had to the document surrounding the issues of what 19 fabric checks were carried out on the INLA wings on 20 27 December 1997, then this would make very satisfactory 21 reading. Such fiction this Inquiry should determine has 22 no place within the security administration of a high 23 security prison. Such checks that were undertaken fell 24 considerably below the definition of a fabric check, and 25 I refer the Panel to page 28 and evidence given at that 156 1 page, which is recorded. 2 One of the strongest examples of just what was going 3 on in relation to fabric checks in H6 in December 1997 4 is described by Ken McCamley as follows: 5 "If there was a pile of rubble sitting there, well, 6 it had to come from somewhere, but as there were no 7 piles of rubble, well, that would have been the extent 8 of the fabric check." 9 Of course, a comment could perhaps be made that it 10 was most unfortunate that on 27 December the pulling 11 back of the cell veil did not reveal the two primed 12 murder weapons sitting neatly for all to see. 13 It is submitted in the light of the various extracts 14 set out further on pages 29 and 30 that it is probable 15 that no proper fabric check was being undertaken, but if 16 there was, then this would have involved putting a head 17 in the door or suchlike and couldn't be described 18 properly as a fabric check. No wonder that 19 Christopher McWilliams was confident that nothing would 20 be checked and, accordingly, nothing would be found. 21 Once the guns were inside the prison, there was little 22 or no likelihood that they would be found and certainly 23 not on the morning of 27 December 1997. 24 Dealing very briefly with LVF access to the exercise 25 yard, could I say it is highly unusual that, going 157 1 against the normal procedure, as well as taking account 2 of the clear evidence from Ralph Phillips that the 3 turnstile was not opened on the morning in question, it 4 seems highly unlikely that the LVF would have been 5 content not that have had access to the exercise yards 6 prior to 10.00 am. Whilst David Hanna considered he 7 didn't see any reason not to open it, this has to be set 8 against the events of the day. 9 No proper explanation has been given as to why the 10 turnstile was not opened and this will be a matter for 11 the Inquiry to determine and its significance. Could 12 its significance could be that the LVF were therefore 13 not in a position to be outside and able to see the hole 14 or the chairs? 15 Dealing then with the high-mast camera overlooking 16 H6, it is clear that towards the end of 1997 there were 17 four separate high-mast cameras located at various 18 points around the Maze. One such camera overlooked H6 19 and it would have been an additional security benefit 20 for H6. The camera in question was reported as broken 21 on 22 December 1997. However, it took until 28 December 22 for the same camera to be fixed. This camera performed 23 a very important function. It is submitted that the 24 explanations proffered are most unsatisfactory as to why 25 the camera was not repaired. The absence of this camera 158 1 precluded the opportunity of being able to observe the 2 members of the INLA murder gang getting onto the roof of 3 H6. While the Inquiry may conclude that the issues 4 relating to the high-mast camera did not of themselves 5 play a fundamental role in the death of Billy Wright, 6 the loss of this security feature against the appalling 7 security backdrop in HMP Maze lessened the security 8 measures that should have been in place for the 9 protection of all prisoners, including Billy Wright, 10 and, therefore, did have a part to play in facilitating 11 his death. 12 Again, dealing very briefly with the issue of the 13 parked vans, it is submitted that on the balance of the 14 evidence the INLA van was parked beside the LVF block 15 and the LVF van was parked beside the INLA block. The 16 location of the parked van before the attack took place 17 could have increased the length of time it took to get 18 into the van with even a matter of seconds making 19 a difference. It is therefore submitted that the 20 position of the van helped facilitate the murder of 21 Billy Wright. 22 If I can now deal with the watchtowers. 23 Raymond Hill was the watchtower guard in the tower 24 overlooking yards A and B of H6 on the morning of 25 27 December 1997. Mr Blundell confirmed that he was 159 1 contacted by phone by Raymond Hill, who told him this 2 was the second time that he had been stood down from the 3 tower. 4 It appears that on the morning of 27 December that 5 the prison as a whole was down eight posts, even after 6 having had a number of posts moved off the diminishing 7 task lines, and there had been a threat that visits, 8 which were an important part of the system, would not be 9 opened that morning. The diminishing task lines were 10 a list of posts that could be dropped when there were 11 shortages in the prison. It is of note that the 12 diminishing task lines did not contain any power posts. 13 Mr McCallum stated that he was told to close all the 14 yard towers, whereas Governor McKee stated that he told 15 him, "Stand down the towers, but leave H6". It is 16 submitted that in the light of the inconsistency of 17 Governor McKee's evidence and other matters in relation 18 to who was present at the meeting together with the 19 contemporaneous fact that PO McCallum proceeded to 20 request all towers to be taken down in H6, leads to the 21 conclusion that Governor McKee did, in fact, order all 22 towers in H6 to be taken down. 23 At the meeting itself it is accepted that the 24 decision was taken to reinstate the towers. It is 25 submitted that Governor McKee ordered both towers be 160 1 stood down in H6. It is submitted that, when faced with 2 an irate John Blundell, Governor McKee immediately 3 changed his decision, but, wishing to cover his tracks, 4 placed the blame squarely on the shoulders of 5 PO McCallum so that it would appear that PO McCallum had 6 not followed an express order. 7 Set against this, it is readily understandable why 8 PO McCallum was so annoyed and why he indicated that 9 "porkies" were being told at the second meeting where 10 the towers were reinstated. 11 It can be seen that Mr Hill was not in place in the 12 watchtower when the INLA murder gang made its way out to 13 the turnstiles through the fence and over the block. 14 Clear evidence is that the meeting which determined the 15 towers were to be reinstated had finished by 9.30. 16 So the question is: what was Raymond Hill up to 17 after having been notified of the outcome of the 18 meeting? 19 It is submitted that Hill should be the subject of 20 criticism for failing to return to his post in the A and 21 B watchtower within a reasonable period of time. 22 Another area of criticism of Raymond Hill is his 23 failure to do anything about the stack of seven chairs 24 which had been placed at the turnstiles. It can be seen 25 that the chairs would have been visible from the 161 1 watchtower and that was confirmed by SOCOPHOTOS 33. It 2 is submitted that the stacking of seven chairs beside 3 the turnstile was an event that should have been 4 reported and thereafter investigated. 5 Clearly the investigation of the location of these 6 chairs would have revealed the makeshift nature of the 7 fence behind it and the hole. It is submitted that his 8 failure to do anything about those chairs should be the 9 subject of criticism. 10 THE CHAIRMAN: Would that be a convenient point? 11 MR KANE: I have one small section which will take 12 three minutes. 13 THE CHAIRMAN: Page 38, are we at? 14 MR KANE: Yes. The final section deals with the question of 15 alarms. 16 There are conflicting views as to how long it would 17 have taken the three INLA murderers to have moved from 18 the block to beside the van ranging from between 19 30 seconds and 61 to 71 seconds. A consulting engineer 20 on behalf of the Wright family had considered that in 21 all of the circumstances the person in the watchtower 22 would have had approximately 45 seconds before the INLA 23 murderers arrived at the van. 24 Seeing the three INLA murderers en route to the 25 forecourt would have led to the pressing of the alarm in 162 1 the watchtower. This alarm would have been audible in 2 the forecourt. The alarm would have notified everyone 3 in the yard that there was an emergency situation at 4 hand. Such warning would have been given, therefore, to 5 Billy Wright. He would have had a fighting chance in 6 order to be able to get out into the forecourt, given 7 that it was possible to open the sliding door of the van 8 from the inside. This would have allowed Billy Wright 9 to have defended himself in the forecourt as a moving 10 target as best he could. 11 Of the two guns that were used in the attack, only 12 one gun was working, and, by the advantage of surprise, 13 close quarters would potentially have been denied his 14 killers. 15 It is also quite possible that Billy Wright could 16 have been at the front of the block when the alarm first 17 sounded and it is submitted that it is very likely, in 18 those circumstances, that he would have been escorted 19 back inside the block rather than being left in the 20 forecourt. This is a possible scenario to which 21 consideration must be given. 22 I think that would be an appropriate time now. 23 THE CHAIRMAN: Right. We will start again in 24 fifteen minutes' time. 25 (3.17 pm) 163 1 (A short break) 2 (3.32 pm) 3 MR KANE: My Lord, if I can now move to the chapter entitled 4 "The Northern Ireland Prison Service", chapter 4 of my 5 written submission. 6 The historical and political context in which NIPS 7 operated before and during the period around the murder 8 gave rise to unique challenges faced by NIPS, including 9 the murder of many Prison Officers and also a culture of 10 slackness, even indolence, amongst some staff and, 11 indeed, management. 12 Notwithstanding these unique difficulties, some 13 30 years' experience had been gained by NIPS and its 14 political masters, during which time more effective 15 management methods and systems should have, and could 16 have, as is shown in hindsight, been developed to tackle 17 these challenges. 18 Fundamental aspects of good prison governance and 19 security gradually became eroded, including daily 20 headcounts, cell searches, proper documenting of 21 important discussions, minute-taking. The net effect of 22 these deficits was to create an environment in which 23 lines of authority became very blurred. The prisoner 24 population effectively became empowered with freedoms 25 which would have been unheard of in any other high 164 1 security prison establishment in the United Kingdom. 2 The concept of ultimate responsibility became 3 elusive and appears to have fallen into the cracks 4 between Government officials who would ascribe 5 importance to the on-the-ground management and 6 management who would point to their political masters as 7 providing the final decisions on key matters. 8 Failure to properly shoulder responsibility occurred 9 between those at NIPS Headquarters and those in local 10 prison management in the Maze. Lack of accountability 11 and, indeed, active avoidance of accountability had 12 become hallmarks of those charged with managing 13 HMP Maze. 14 Practical and logistical shortcomings from long 15 connived at security deficits contributed to events 16 leading to the murder of Billy Wright. Physical 17 security was knowingly compromised by a process of 18 perpetual review and procrastination by management. 19 A combination of political and financial 20 considerations provided a convenient cloak for inaction. 21 Politics and the pound were never far from the top of 22 the priority lists of NIPS and HMP Maze management. 23 In the case of Billy Wright, the evidence before the 24 Inquiry shows that serious deficits in and inadequacies 25 of, or even the absence of certain crucial layers of 165 1 protection, permitted a threat to his life to permeate 2 all the way through the security systems in HMP Maze 3 until his eventual murder. We commend the table at 4 page 60. 5 Failures in management, personnel systems and 6 physical security within the Northern Ireland 7 Prison Service, and the Maze in particular, played 8 a significant part in the events leading to the murder 9 of Billy Wright. 10 Dealing then with the transfer of Billy Wright to 11 Maze Prison. It is useful to note that a range of 12 issues were in play, including: Mr Wright's own stated 13 desire to transfer to HMP Maze; an assurance regarding 14 Mr Wright's safety, which we contend was given to him by 15 Seamus McNeill; the risk of stimulating self-segregation 16 among political factions in HMP Maghaberry; the risk 17 that Mr Wright could achieve the status of a martyr; 18 operational complications; and the wider political 19 significance of Billy Wright up to and including those 20 in Downing Street. 21 NIPS have sought to describe the transfer as "the 22 least worst option". The prison authorities and those 23 in political authority failed to properly shoulder 24 accountability for the transfer, and they failed to 25 manage the risks to Billy Wright following his transfer 166 1 to HMP Maze. 2 The question of ultimate responsibility for the 3 eventual decision to transfer Billy Wright is the 4 starkest example of the syndrome described. 5 Sir John Wheeler's evidence highlighted the segregation 6 of the Minister from operational matters. 7 Notwithstanding their responsibility under the law, NIPS 8 felt that it necessary to seek approval from Sir John 9 before implementing certain actions. 10 A telling example was when Sir John was specifically 11 asked by Alan Shannon as to whether he, Sir John, was 12 content that: 13 "We, the Maze authorities, proceed with a thorough 14 search of the prison." 15 It is no small wonder that Alan Shannon acknowledged 16 the existence of political control, the bedfellow of the 17 ministerial responsibility which Sir John Wheeler 18 described as "quite a complicated business these days". 19 Is there anyone under any doubt that the involvement 20 of the Minister serves only to underscore the political 21 significance of Billy Wright and his importance on the 22 Northern Ireland stage at that time? 23 We contend that in practical terms Sir John Wheeler 24 was directly engaged in certain key operational issues. 25 If I could deal then with the issue of assurances 167 1 regarding Billy Wright's safety. There is compelling 2 evidence showing Seamus McNeill of NIPS Operational 3 Management Division, visited Billy Wright on 4 21 April 1997. He was the face of the NIO. It was the 5 same day that Billy Wright included in his petition for 6 transfer the phrase: 7 "Having been assured of my safety by the NIO ..." 8 Mr McNeill denied giving any such assurances during 9 oral evidence, but Duncan McLaughlan, in his journal, 10 places Seamus McNeill at the prison that day. His own 11 documentation indicated his intention to see 12 Billy Wright on that day. 13 We therefore contend that NIPS, through 14 Seamus McNeill, gave Billy Wright an assurance to the 15 effect that his safety would be protected, thereby 16 compounding their duplicity in the way he was 17 subsequently treated. The subsequent apparent lack of 18 sight or appreciation of the significance of this 19 comment upon his petition by those receiving the 20 petition was neither convincing nor credible. 21 Some exception was taken to the evidential minute 22 NP21-0337 in oral submissions and there was a claim it 23 was unfair for this to be cited as others have not seen 24 it. 25 This document was clearly there for all to see on 168 1 the database of this Inquiry. It is, therefore, hardly 2 the fault of the Wright family if they seek to avail 3 themselves of sight of that document. 4 Those representing Mr McNeill, and indeed Mr McNeill 5 himself, could have sought his recall. Objection was 6 taken to the use of the word "denial" in the written 7 submission. In fact, perhaps that objection is correct, 8 in that it wasn't so much the denial as the omission on 9 the part of Mr McNeill which is perhaps most 10 significant. He was able to remember the other meetings 11 for which there was documentary evidence. The Panel now 12 may wish to consider whether the omission, the lapse by 13 Mr McNeill, was deliberate or not. 14 Having been briefed in considerable detail on the 15 complex and competing issues at stake on 1 April, 16 Sir John considered that the best option in the 17 circumstances was to approve Billy Wright's transfer to 18 Maze. Three weeks later on 22 April, Sir John responds 19 that the transfer should not proceed. 20 When questioned about the security and intelligence 21 information upon which Sir John based his reversal, his 22 response was unsatisfactory, insofar as he could not 23 recall any detail of what must have been at that time 24 quite compelling material. 25 There has been complete failure to provide the 169 1 Inquiry with any documentary information whatsoever from 2 any source regarding the intelligence information seen 3 by Sir John Wheeler. This was and remains wholly 4 unsatisfactory, given its clear weight in Sir John's 5 mind and his initial decision to block the transfer. 6 Indeed, when one looks at NP21-0368, it is also near 7 that the Minister took into account the initial 8 opposition to the transfer of Billy Wright expressed by 9 the RUC. The mystery is deepened by the single failure 10 on the part of all those involved who provide either 11 verbal or documentary testimony to this Inquiry on the 12 content, nature and extent of that declaration of 13 opposition to sending Billy Wright to the place of his 14 death. 15 Then only days later, on 25 April, Sir John 16 completes his pirouette in the wake of a meeting between 17 himself, NIPS and NIO officials. As with his initial 18 reversal, Sir John was unable to provide a comprehensive 19 explanation as to which factors led to his final 20 decision to permit the transfer of Mr Wright to the 21 Maze. Andy Murray's return serve would not have been 22 more deft. 23 In the aftermath of Mr Wright's murder, the ongoing 24 Narey investigation into Liam Averill's escape was 25 extended to encompass the murder. It is notable that 170 1 Mr Shannon expressed a preference for an extension to 2 the limited Narey investigation as opposed to opening up 3 the shambolic security conditions at the Maze Prison to 4 the full gaze of General Sir David Ramsbotham. 5 In light of all the information obtained by this 6 Inquiry, it is the view of the Wright family that the 7 shallowness of the Government-favoured Narey 8 investigations have been exposed. 9 A significant volume of evidence strongly supports 10 the view that Billy Wright's co-location with the 11 diametrically opposed faction was simply to invite 12 disaster and was the result, we submit, of incompetence 13 of staggering proportions. 14 Given Sir John's clear involvement in reviewing and 15 approving, refusing, then ultimately reapproving 16 Mr Wright's move to HMP Maze, it is simply not credible 17 that he would have had no awareness of discussions 18 around the specific location of Mr Wright and his 19 followers within HMP Maze. It is inconceivable against 20 the backdrop of the March tunnel incident that Sir John 21 was ignorant of the challenges affecting accommodation 22 at the Maze. 23 It is very hard to imagine the scenario in which 24 Sir John did not ask the key questions of his NIPS 25 officials, where this man was content to be housed 171 1 within HMP Maze. For him not to have done so would have 2 demonstrated nothing less than a cavalier attitude. It 3 was the level of oversight expected from so senior 4 a politician. 5 Numerous references are made to the ongoing 6 programme of refurbishment at HMP Maze in which the 7 block in question was held over for maintenance 8 contractors, and, therefore, was unable to house 9 inmates. Mr Shannon attached some considerable weight 10 to the logistical impact imposed upon the programme, had 11 the block undergoing refurbishment been selected to 12 house Mr Wright and a number of other LVF members. 13 It appears most inconsistent that ongoing block 14 refurbishment, however necessary, should be so carefully 15 shielded from disruption, whilst, at the same time, 16 critical measures to restrict access to flat roofs had 17 languished unaddressed for many years. 18 It is clear that the refurbishment programme did not 19 proceed with all urgency and was subject to frequent 20 impingement by day-to-day operations at the prison. To 21 treat as sacrosanct the need to maintain an empty block 22 for ongoing refurbishment appears absurd, given that it 23 contributed to co-locating two diametrically opposed 24 factions within a single block, and cannot be justified 25 in any way as rational or reasonable. 172 1 After the murder, as has already been highlighted, 2 the INLA prisoners were moved straight out of H6 to H3. 3 It appears, therefore, the prison authorities could be 4 jarred into action, but at the cost of a life. Well 5 might it be said that oftentimes excusing of a fault 6 doth make the fault the worse by the excuse. 7 The proposal to co-locate Mr Wright within that had 8 clearly become known to persons outside the prison 9 management. The IRSP made statements reported in the 10 media containing language which is unequivocal in 11 expressing that Wright's safety was in jeopardy and 12 appeared to stand out from the ongoing background of 13 threat and counter-threat. 14 Forecasting trouble both within and outside the 15 Maze Prison took place. Therefore, it is impossible to 16 accept that the prison authorities could have ignored 17 the significance of the reported statements and thereby 18 failed to seek a threat assessment from RUC 19 Special Branch by a simple telephone call or a brief 20 memo. 21 NIPS in general, and Alan Shannon, failed to confirm 22 that the content of the statement was known to the 23 authorities at the Maze and that RUC Special Branch 24 advice was sought. Paradoxically, when asked what 25 impact knowledge of the contents of the April NIIR would 173 1 have made on the decision to transfer Mr Wright and 2 house him in H6, Alan Shannon stated: 3 "I think we would have wanted to go back to the 4 police and test exactly how serious and how reliable 5 this threat was." 6 The introduction of Billy Wright into the 7 environment of HMP Maze was always going to present 8 significant challenges. By the time of the transfer, 9 many of the controls which would be considered entirely 10 routine within a high security prison had been so 11 degraded as to be essentially useless. Prison staff had 12 retreated from the wings, and were, for practical 13 purposes, confined to the circle area. 14 Were the animals running the zoo, or the lunatics 15 the asylum? 16 Inmates had freedom of association 24 hours a day 17 and were permitted on occasion to move within blocks. 18 The frequency and effectiveness of searches had become 19 entirely insufficient and there was widespread adoption 20 of assumed headcounts. Security and control in HMP Maze 21 at the time of Mr Wright's transfer can justifiably be 22 described as nothing short of shambolic. 23 The use of risk assessment was widespread across 24 many sectors, including the public sector. The risk 25 associated with an event or situation is a combination 174 1 of how likely potential hazards are to occur and the 2 severity of the consequences if they do occur. The 3 absence of a properly constituted risk assessment in 4 considering a significant decision such as the 5 relocation of a high profile prisoner, could only be 6 described as reckless, demonstrative disregard of the 7 life of Billy Wright, prisoners and prison staff. 8 The account given by Alan Shannon of the risk 9 assessment process concerning Mr Wright's move does not 10 remotely convey rigour and care. It is compounded by 11 the absence of adequate documentation in which any risk 12 assessment had been captured. In relaxed mode, away 13 from rigorous cross-examination, Mr Shannon asserted 14 "I don't think you can run a system on the basis of 15 a continuous sort of bureaucratic, form-filling kind of 16 risk assessment process." 17 The attitude encapsulated in his statement suggest 18 that NIPS and Mr Shannon completely failed to understand 19 that essential elements of effective risk assessment, 20 reassessment in light of changing conditions, proper 21 recording and documentation. 22 Had a proper risk assessment been applied to the 23 proposed co-location of Billy Wright and his fellow LVF 24 members with INLA in H6, the following issues would 25 almost certainly have featured prominently and included: 175 1 "The degraded state of the mental security and 2 control measures. 3 "Threats from the INLA directed at Billy Wright. 4 "The relevant merits of impinging on the rolling 5 refurbishment programme versus placing violently opposed 6 factions in the same block. 7 Moreover, once the decision had been taken, 8 a properly constituted risk assessment would also have 9 embraced the available intelligence information held by 10 Duncan McLaughlan regarding the underlying motive for 11 smuggling a firearm into HMP Maghaberry; that is to 12 murder Billy Wright. 13 That, of course, depends on the view taken by this 14 Inquiry on what, if any, dissemination of that 15 information took place on the part of Mr McLaughlan. 16 When asked about the existence of documentary 17 support to the risk assessment, Mr Shannon said: 18 "I don't think there is a document which I could 19 point to." 20 Had a properly managed and documented risk 21 assessment process been in place reflecting changing 22 conditions, there would have been rendered simply 23 inconceivable any proposal to transfer McWilliams and 24 Kenneway to H6, both of whom were known to 25 Duncan McLaughlan as having had the intention to murder 176 1 Billy Wright with a smuggle firearm whilst all three 2 were at HMP Maghaberry. 3 Mr McLaughlan's unsubstantiated contention that he 4 is 99% positive that he told Martin Mogg of Mr Wright 5 being the original target could so easily have been 6 replaced by 100%, documented certainty. Steps may well 7 have been taken which could have saved Billy Wright. 8 Mr Shannon quoted the then Governor and Director of 9 Operations, Martin Mogg, as having confirmed to him that 10 the Maze was designed to keep factions apart. It should 11 be noted, however, that HMP Maze was no longer 12 a facility remotely resembling its original design. 13 In analogous terms, a new car is designed to be 14 safe. However, removing its seatbelts and brakes is 15 going to change that utterly. The apparent failure by 16 the prison authorities, both in HMP Maze and within 17 NIPS, to recognise this fact demonstrates a shocking 18 detachment from the reality on the ground. 19 Independent expert assessment was provided to the 20 Inquiry. This aspect of the Inquiry greatly benefited 21 from the contribution of Sir Richard Tilt, who possessed 22 extensive, direct experience in the prison sector. In 23 his oral evidence to the Inquiry, Alan Shannon accepts 24 the expertise and breadth of experience held by 25 Sir Richard. 177 1 There is an inescapably stark contrast to be drawn 2 between someone of Sir Richard Tilt's background with 3 many years at the coalface of prison management and, for 4 example, Alan Shannon, a career civil servant. 5 Criticism was made during oral submissions of 6 Sir Richard Tilt. The evidence of Tom Wood was quoted, 7 who indicated that: 8 "I thought we had a team." 9 We would say if there was any kind of genuine or 10 effective cohesive team in existence, then surely many 11 of the documented deficits in security would have been 12 addressed. Rather, we say Alan Shannon clearly presided 13 over a fractured organisation. 14 It was further said in verbal submissions that 15 Sir Richard Tilt's criticism about absences in key areas 16 such as Security Governors and collators was that there 17 were no skill gaps that had been identified. We say, 18 however, that if security management and personnel were 19 skilled as professed, it was all the more unforgivable 20 that they presided over and in some cases contributed to 21 the shambolic state of decrepitude which the security 22 apparatus at the Maze had reached. 23 There were emerging signs about the situation in 24 H Block 6. During the intervening month between 25 Billy Wright's arrival at HMP Maze and his eventual 178 1 murder, there were clear and emerging indications of 2 growing unrest in H Block 6, and ranged from expressions 3 of concern by relatively independent observers through 4 to a destructive rampage leading to extensive damage 5 within H6. Yet, in the face of compelling evidence, 6 that disaster was looming, the prison authorities 7 continued with the policy of INLA and LVF co-location in 8 the block. 9 I will now deal with a number of those concerns. 10 Concerns were expressed by the Prison Officers' 11 Association. Prison officers were well placed to gauge 12 the atmosphere on the wings and to pick up tangible 13 signs of discontent or tension. Officers were, 14 on occasion, fearful of passing on information and 15 observations to the Security Information Centre. On 16 many occasions those who did received no feedback or 17 acknowledgment. It seems quite reasonable to treat 18 seriously concerns which were fed back from officers on 19 the ground, as they had taken the risk and trouble to do 20 so. 21 At a meeting on 1 July 1997, POA representatives, 22 including James Duffy, met with Alan Shannon, Minister 23 Adam Ingram and a number of other officials. Mr Duffy 24 made a concerted bid to convey directly to the Minister 25 details of the members' grave concerns as to the growing 179 1 tensions within H6 and the threat by INLA to take out 2 the LVF sharing their block. It is also telling that 3 the minute of this meeting does not reflect this aspect 4 of Mr Duffy's contribution, and in what appears very 5 much like a contemptuous airbrushing of the minute, 6 references made by Mr Duffy to the POAs concerned were 7 strategically omitted. 8 The deliberate nature of this omission becomes quite 9 apparent, in that the minute bears close comparison in 10 sequence and content to handwritten notes made on the 11 day by Mr Duffy with the specific exception of the 12 co-location concerns. 13 This is all the more disturbing as the minute in 14 question was a record of a meeting at which POA concerns 15 were expressed at the highest political and 16 Prison Service executive levels. The Inquiry also heard 17 evidence of previously inaccurate recording by NIPS of 18 contents of meetings with the POA. 19 The Northern Ireland Association for the Care and 20 Resettlement of Offenders on 10 July expressed their 21 concerns to the Minister Adam Ingram over co-location of 22 INLA and LVF prisoners in H6. As a voluntary care 23 organisation, they could be regarded as generally fair 24 and objective and had significant experience in gauging 25 the mood and anxieties of prisoners. However, deaf ears 180 1 prevailed. The LVF riot took place in H Block 6 in 2 August in 1997, perhaps the starkest warning up to that 3 point, and the tensions in the LVF wings erupted into 4 a destructive rampage. 5 Governor Patrick Maguire recorded in the prison log 6 that LVF inmates were overheard threatening to set fire 7 to their wings and attack INLA prisoners by means of 8 crossing the roof. NIPS suggest this was a technical 9 possibility and the risk was overstated as none of the 10 breaches were Republican. 11 We, however, say -- and we will deal later with the 12 Red Cross report, the riot log contents, and we also say 13 that the expectation of individual security witnesses 14 are not something which can be described as partisan. 15 This extremely serious incident was required to end 16 finally the apparent sacrosanctity of blocks left empty 17 for rolling refurbishment. It resulted in many 18 thousands of pounds' worth of damage to H6, but 19 crucially the fact that rioting LVF prisoners gained 20 access to the block roof appears not to have been 21 recognised as a deeply worrying development. 22 In a memo dated 14 August 1997, Martin Mogg gave 23 an account of the riot to the Minister, Adam Ingram. 24 This is set out at page 73 of our written submissions. 25 Beyond the prison, Mr Mogg also reports attacks on the 181 1 homes of prison staff, including the firing of shots. 2 All in all, Mr Ingram could have been left in no 3 doubt as to the gravity of the situation. Mr Shannon 4 was copied on this memo. It should have been utterly 5 apparent to all that the decision to co-locate was 6 deeply flawed and should be revisited immediately. 7 Unfortunately, however, the issue of poor roof security 8 was destined to remain unaddressed due to permanent 9 procrastination by prison management. 10 Alan Shannon's panacea was that: 11 "We were dealing with an assessment of the tensions 12 internally at that time." 13 Indeed, it is now all too apparent that the 14 assessment of internal tensions was itself essentially 15 useless, failing, as it did, to defuse the powder keg 16 that was in H6. The blind eye was turned. 17 Board of Visitors had a meeting on 10 September 1997 18 with Mr Shannon. They expressed their concerns over the 19 plan to relocate LVF prisoners back into H6, and that 20 there was fear among INLA inmates over their safety in 21 H6 should the LVF be returned there. 22 Mr Shannon is noted as attributing the original 23 decision to co-locate LVF and INLA in H6 to a reduction 24 in staff numbers at HMP Maze. 25 The Board of Visitors representatives seem to have 182 1 communicated what was the only rational and logical view 2 in light of recent events. However, deaf ears 3 prevailed. 4 On 11 July 1997 Prison Officer Vivienne Boyd 5 observed that LVF prisoners refused to come in from the 6 exercise yard. She submitted to the Security 7 Information Centre a staff communication sheet. Blind 8 eyes prevailed. 9 A POA letter in the form of a formal letter from 10 James Duffy dated 11 September 1997 was submitted to 11 William Gribben and Steve Davis. It set out a range of 12 concerns. They felt the officers working in 13 H Block 6 -- and included the reported threat by INLA 14 prisoners that they would set fire to the block in the 15 event that LVF prisoners were relocated back into H6. 16 Crucially, concern is spelt out about access to the 17 roof from the INLA side of the block. Blind eyes 18 prevailed. 19 The Monthly Intelligence Assessment for 20 September 1997 was circulated widely among senior, 21 political, intelligence, police, and prison management 22 officials including the Secretary of State, the 23 Minister, Martin Mogg and Alan Shannon. It contains 24 a specific reference which leaves no room for 25 flexibility in its interpretation that the INLA have 183 1 claimed that if the LVF are returned to H6, their -- 2 that's the INLA's -- lives, will be placed at risk and 3 that they, the INLA, will not burn the block, but, 4 rather, "carry out something more spectacular." Blind 5 eyes prevailed. 6 The INLA prisoners' petition setting specific safety 7 concerns and, indeed, highlighting a possible 8 alternative to relocating the LVF back into H6 was 9 submitted to NIPS by INLA prisoners on 10 21 September 1997. It followed a response, rather 11 tellingly some three weeks after the return of LVF 12 prisoners to H6, that: 13 "The Governor is taking all necessary steps to 14 ensure that the risks to your safety are minimised." 15 That assertion was by definition false. There is no 16 evidence that a fresh appraisal of risk or, indeed, 17 a proper initial appraisal of risks was being or had 18 been carried out. This supports the view that no 19 alternative arrangements had ever been considered 20 seriously, and, in spite of warnings and concerns from 21 the widest imaginable spectrum of stakeholders, it 22 appears the prison authorities were only ever intent on 23 reintroducing the LVF back into H6. 24 In a letter dated 25 September 1997 to Alan Shannon 25 the Chairman of NIACRO, the Reverend Harold Good clearly 184 1 expressed grave concerns regarding the co-location of 2 the LVF and INLA. Mr Shannon's response relied partly 3 upon the now increasingly ludicrous proposition that the 4 demands of the rolling refurbishment programme forced 5 the situation. 6 Tellingly, the Reverend Good felt compelled, 7 following Mr Wright's murder, to write to the Secretary 8 of State highlighting to her that NIACRO had previously 9 expressed their concerns to NIPS regarding the 10 co-location in H6. 11 I do not think that the Reverend Good thought he was 12 writing to Mr Shannon at this stage. 13 Brian Barlow and Steve Davis met with OC and 2-IC 14 INLA in H6 on 1 October 1997. The INLA representatives 15 reacted furiously to the news that LVF prisoners were to 16 be returned to H6, making it clear they felt they would 17 be "forced to take matters into our own hands". 18 However, in spite of the significance of the 19 warning, no mention of the warning exists in the 20 corresponding MIA, nor in the minute of the subsequent 21 PLG meeting. Alan Shannon in oral evidence said: 22 "If you take every such threat seriously, paralysis 23 would very quickly ensue." 24 Deaf ears prevailed as the paralysis of the death of 25 Billy Wright drew closer. 185 1 On 4 October, three days after the return of the LVF 2 to H6, it was reported in a SIR that an officer in H6 3 observed four INLA prisoners, including Kenneway, 4 appearing to discuss at some length the observation 5 tower and the fence around the yard in which they stood. 6 More significance may have been attributed to given 7 events, had the reports of those events been analysed 8 and distilled by a suitable intelligence collator, 9 a role not filled during the period of in question, yet 10 highlighted as essential. 11 Staff communication sheet from Steve Davis. 12 Steve Davis produced an important document in which he 13 pieced together information that had come into the SIC 14 and concluded: 15 "It seems that INLA are planning some sort of 16 action. They have a number of individuals within their 17 ranks willing to undertake any sort of action to prove 18 their worth." 19 It could be argued that in his analysis, prepared in 20 the context of his major report issued later that month, 21 Steve Davis effectively predicted and foresaw violent 22 action by INLA in H6, even going so far as to conjecture 23 on motive. 24 Mr Davis went on to reflect the content of his SCS 25 at a meeting of the local security committee meeting on 186 1 13 October 1997, attended by senior prison officials and 2 the army. Those in attendance would have fully 3 understood the implications of Mr Davis' analysis of the 4 INLA leadership being under pressure to take action. 5 After a mere two and a half months in post as 6 Security Governor, Steve Davis carefully documented in 7 his report to Martin Mogg, dated 28 October 1997, the 8 dire state of affairs at HMP Maze. He gave a prognosis 9 of a bleak future unless changes were made. He spoke of 10 regaining control of the Maze. Mr Davis diagnosed the 11 self-defeating, fatalistic outlook and innumerable 12 reasons for inaction. 13 Mr Davis, a man charged with responsibility for 14 attaining and maintaining the security of the prison, 15 identified and succinctly documented essentially every 16 deficiency of which the Inquiry now has substantial 17 evidence. 18 It is untenable to claim that NIPS and local 19 management were ignorant of the nature and extent of the 20 problems at HMP Maze. The question arises as to why 21 seasoned management staff at HMP Maze and NIPS failed to 22 take effective and meaningful action. Steve Davis' 23 report compounded concern that the fundamental systems 24 and operation of HMP Maze were not conducive to the safe 25 co-location of violently opposing factions. 187 1 However, Mr Shannon once again claimed he had no 2 recollection of having seen this report and offered the 3 view that: 4 "Its content would have been consistent with 5 an ongoing concern and analysis about the nature of the 6 Maze and the kind of management we needed in the Maze to 7 make it work satisfactorily." 8 It appears from Mr Shannon's response in this 9 context that NIPS and local management were suffering 10 paralysis by analysis instead of instigating tangible 11 action. 12 In his journal entry for 31st October 1997 Mr Mogg 13 recorded a meeting with INLA representatives who voiced 14 concern at: 15 "... being in block with the LVF and usual range of 16 issues." 17 There was a visit to HMP Maze by a delegation for 18 the International Committee of the Red Cross. The 19 Red Cross had, and continued to have, a worldwide 20 reputation as a humanitarian organisation of great 21 standing; people who are experts in visiting prisons and 22 looking at conditions of detention. 23 Following approval by the Minister, Adam Ingram, 24 a delegation from the Red Cross conducted an inspection 25 at the Maze from 10 to 14 November 1997. Crucially, it 188 1 described H6 as a powder keg. Use of this most clear 2 expression in any language was adopted by the Red Cross 3 delegation precisely because it so aptly described 4 conditions as they found them. 5 The delegation were concerned that the block roof 6 could be taken and the other side stormed. Five days 7 after the ICRC had voiced concerns over the 8 vulnerability of the roof, a proposal by Steve Davis to 9 increase roof security was rejected by Governor Mogg, 10 who, unhindered by Mr Shannon, diverted the funding 11 towards a proposed staff fitness suite and landscaping. 12 Presumably in the mind of the Governor a pair of more 13 worthy and urgent causes. 14 However, even though it had been a condition upon 15 which his approval had been given, the provision of 16 a report of the Red Cross inspection was not provided to 17 the Minister, in fact, until after the murder of 18 Billy Wright in direct contravention of the undertaking 19 given to the Minister by NIPS officials. 20 This tardy report to the Minister was more concerned 21 with attempting retrospectively to protect the position 22 of NIPS. It would appear as if selective sight 23 prevailed afterwards. In oral submissions it was 24 asserted that this delay was not inordinate. It is 25 difficult to envisage, or indeed countenance, any 189 1 greater delay. The monthly intelligence assessment for 2 November 1997 states amazingly that: 3 "INLA concerns appear to have waned." 4 At the corresponding Prison Liaison Group meeting 5 Mr Shannon had an excellent opportunity to highlight the 6 contradiction in the two reports and to correct any 7 misunderstanding. He failed entirely to do so. 8 What was needed to make management at HMP Maze and 9 NIPS accept the gravity of the situation in H6? 10 NIPS had come to rely on the supposed "no first 11 strike" agreement as a bulwark against mayhem in the 12 block. To rely upon honour among thieves, let alone 13 convicted terrorists, in the context of HMP Maze was 14 grossly naive to say the least, as later acknowledged by 15 Martin Mogg in a television interview. There has been 16 no documentary proof provided to the Inquiry whatsoever 17 showing that INLA had subscribed to such an agreement. 18 We contend, therefore, that the behaviour of 19 Alan Shannon and Martin Mogg, as the principal 20 architects of this shambles, had become, by this stage, 21 nothing short of reckless. They had become major 22 contributors to an environment in which Billy Wright's 23 murder could proceed with relative ease. They clearly 24 were facilitators within the terms of reference. 25 An inevitable outcome of the deepening security and 190 1 control deficits was the escape of Liam Averill, on 2 10 December 1997, dressed as a woman. This fiasco even 3 failed to provide a desperately needed reality check 4 both to NIPS and prison management. 5 The meeting which took place between Governors I 6 and II and the INLA Second-in-Command I have already 7 dealt with. 8 The second Steve Davis report emerged in 9 December 1997. It is both ironic and tragic that 10 a second and somewhat repetitious report authored by 11 Mr Davis should have been undergoing publication at the 12 very moment of Billy Wright's murder. Though published 13 after Mr Wright's murder, the content had been written 14 prior to the shooting. It is, however, most prescient 15 that Mr Davis should include the assertion: 16 "What is certain from a security perspective is that 17 things cannot continue as they are, otherwise we will 18 experience another security breach." 19 However, in the period between the publication of 20 Mr Davis' reports, the reality on the ground at Maze and 21 within NIPS was that management behaved as if 22 fossilised, unwilling to move to action to remedy the 23 numerous and ultimately fatal failings drawn robustly to 24 their attention by the Security Governor. 25 In light of the complexity and seriousness of this 191 1 primary function of HMP Maze in housing large numbers of 2 diametrically opposed convicted terrorists, one would 3 expect to have found in place some of the most stringent 4 and comprehensive physical and operational security 5 measures imaginable. 6 The reality at HMP Maze in 1997 was the wholesale 7 abandonment of essential aspects of operational security 8 coupled with major deficits in some critical, physical 9 security measures. There is no question that the 10 single-storey flat roof design of H Blocks created 11 an inherent vulnerability by which the roof, once 12 accessed, provided prisoners with a corridor along which 13 they could gain proximity to other wings. 14 This weakness was exploited on a number of occasions 15 from 1994 onwards after the introduction of 24-hour 16 unlock. Four such incidents occurred between 1994 to 17 August 1997. The evidence before the Inquiry clearly 18 demonstrates that this long-standing Achilles' heel was 19 the subject of repeated, yet ultimately useless, reviews 20 by prison authorities. 21 Despite a plethora of meetings, Working Parties and 22 a selection of conceptual experimental designs, the 23 apparent inability of a nominated individual or small 24 team to take full ownership of this problem and deliver 25 a solution demonstrates totally ineffective management. 192 1 A solution felt likely by an expert to have been of 2 proportionate cost was rejected on the most dubious of 3 grounds. This rejection by Martin Mogg was subsequently 4 described by Mr Shannon in evidence as "a serious error 5 of judgment". However, we contend that Mr Shannon 6 suffered from precisely the same deficiency in his 7 judgment regarding this most grievous failure to fix 8 a basic security deficit over the course of several 9 previous years. 10 So far as yards were concerned, the situation 11 existed in which prisoners had essentially free access 12 to the yards facilitated in the first instance by 13 24-hour unlock. 14 It should be noted that access to the yards was 15 effectively a passport to the roof of the block, as so 16 clearly seen on the day of Mr Wright's murder. During 17 the night, in the absence of a watchtower guard and with 18 a reduced complement of staff, and themselves locked in 19 the block, prisoners could act with impunity in 20 attacking the yard fences. Against this background, it 21 is hardly surprising that a stalemate developed between 22 Prison Officers and the prison management manifested as 23 a failure to agree notice. From June 1997 until 24 March 1998, the issue of an acceptable procedure to lock 25 the outer grille lay in abeyance. The ludicrous 193 1 situation in which Mr Duffy, a POA official and not 2 a staff member at the Maze, felt himself obliged to 3 conduct an adequate risk assessment on this issue is 4 most telling. This reinforces the already strong 5 mention that NIPS and prison management were woefully 6 unable, unqualified, or both, to conduct and document 7 proper risk assessments. 8 It is our view that responsibility for resolving the 9 failure to agree notice lay clearly with management and 10 NIPS and we reject the criticism which has been made of 11 the POA in that regard. It should be recalled that 12 Alan Shannon and Adam Ingram were both fully aware of 13 the unacceptable security risk posed by free access to 14 the yards. 15 Photographs taken by Scenes of Crimes Officers after 16 the murder provide a vivid illustration of a stack of 17 seven chairs brought into the yard in contravention of 18 Governor's order. They can being seen to provide 19 a screen behind which lies the breach believed to have 20 been cut by McWilliams and Kenneway on their way to the 21 block roof. All of these security deficits facilitated 22 the murder of Billy Wright. 23 The importance of searching in a prison is 24 self-evident. Effective and frequent -- 25 THE CHAIRMAN: Can I just ask you a question? When you say 194 1 "on their way to the block", you don't mean on the 2 murder, do you? You mean it was cut in advance and that 3 allowed them to get onto the roof. 4 MR KANE: On the day of the murder to get to the block roof, 5 yes. 6 THE CHAIRMAN: Thank you. Just go ahead. 7 MR KANE: The importance of searching is self-evident. 8 Effective and frequent searching would have been 9 expected to lie at the heart of the security and control 10 regime of a prison like the Maze. 11 However, the reality on the ground could scarcely 12 have been further from this ideal. In the 12 months 13 prior to the PIRA tunnel coming to light on 14 13 March 1997, only three selective block searches had 15 been conducted. The tunnel incident was the starkest 16 illustration as to just how seriously compromised 17 security was. 18 It was not, in fact, the search which revealed the 19 presence of the tunnel, but rather, its eventual 20 collapse. The Steele Report contained recommendations 21 in respect of searching. However, the system broke down 22 once again. 23 The December monthly intelligence assessment meeting 24 recorded retrospectively that no full searching of 25 prisoner accommodation had taken place since mid-July. 195 1 Worse still, there was no apparent attempt to mitigate 2 the increased risks by increasing other control and 3 security measures. Indeed, by the end of 1997 the 4 Security Governor himself still felt it necessary to 5 report to Martin Mogg that: 6 "Searching remains almost an ideal within the Maze." 7 Sir Richard Tilt concluded scathingly that: 8 "Management failed to maintain searching at minimum 9 standards." 10 This aspect of security was one utterly 11 inappropriate for compromise, but totally ready for 12 murderous exploitation. Considerable evidence has been 13 placed before the Inquiry illustrating the limited 14 functionality and poor upkeep of security cameras. 15 Regular routine confirmation of the number of prisoners 16 had been reduced to the status of an inconvenient 17 irrelevance in the minds of prisoners and staff alike. 18 It was with palpable astonishment that the then 19 Secretary of State wrote to John Steele and copied other 20 prominent recipients describing this incredible 21 deficiencies and others as "appalling". It is scarcely 22 surprising that the Secretary of State should have found 23 it incredible that a prison could be operated when it 24 was possibly not to know for 48 hours whether people 25 were even in there. 196 1 As is now apparent, not only was this practice 2 tolerated, but, we submit, tacitly promoted by virtue of 3 the long-standing inaction of management. There was 4 a similarly contemptuous attitude exhibited towards the 5 practice of fabric checks. Neither NIPS nor local 6 management sought to ensure the correct execution of 7 these important checks. 8 Inter-block moves. As early as August 1995 9 Alan Shannon was relaying to the then Governor, 10 Mr Baxter, the concerns regarding the extent of 11 inter-block moves by prisoners. Subsequently, a rather 12 cynical written exchange between Martin Mogg and 13 Alan Shannon took place. Former Security Governor 14 Alan Craig described the suspicion of NIPS that local 15 management were in ineffectual and the corresponding 16 suspicion of local management that NIPS were 17 insufficiently supportive. 18 Instead of acknowledging that Alan Craig's concerns 19 may have had some valid basis and, therefore, warrant 20 their attention, Messrs Shannon and Mogg seemed to 21 ignore the message and characterised it as an example of 22 Alan Craig on a recognised hobby-horse. They failed to 23 see beyond the idiosyncrasies of the messenger and 24 overlooked the content of the message. Inter-block 25 movements were to continue unabated right up until 197 1 Billy Wright's murder. 2 Furthermore, despite the lack of confidence in 3 Governor Baxter, evident from Mr Shannon's 4 correspondence and subsequently acknowledged by him 5 before the Inquiry, he took no positive action to 6 replace Governor Baxter. To any reasonable onlooker, 7 the concept of ending the daily locking up of prisoners 8 in a high security prison would be anathema. 9 Furthermore, the concession of 24-hour unlock led to 10 an inevitable withdrawal of staff from the wings. This 11 irreparable damage, as it was described by 12 Sir Richard Tilt, to the ability of prison authorities 13 to exercise control, protect prisoners and enforce 14 instructions was a prime mover in the wider descent into 15 chaos and in facilitating the murder of Billy Wright. 16 Once more, the lacuna in accountability looms large 17 in this issue. When Alan Shannon advised the Minister 18 that 24-hour unlock should be accepted, ironically with 19 all reasonable safeguards in place, he, Mr Shannon, 20 nonetheless identifies Sir John Wheeler as having 21 sanctioned the measure. 22 In a properly functioning prison environment the 23 Security Department would be a veritable hub of 24 information flow and exchange, an integral part of 25 identifying and managing risks, having a dedicated 198 1 collator charged with ordering, structuring and managing 2 information so that maximum benefit can be extracted 3 from it. 4 Brian Barlow, however, spoke of a system which could 5 fairly be described as relying on a mishmash of half 6 sheets, handwritten SIRs combined with computerised 7 records. The need for a collator had been identified. 8 The failure to fill this role and to fill it with 9 a suitable person robbed the prison authorities of vital 10 insights and clues from intelligence material. In 11 itself this is a damning illustration of their 12 institutional inability to function as effective 13 managers. 14 The appointment of a health and safety officer is of 15 crucial importance, providing leadership and stewardship 16 in the vital task of ensuring that prisoners and staff 17 are not exposed to unnecessary or avoidable harm. 18 During the period 1994 to 1997, NIPS and prison 19 management demonstrated their complete contempt of the 20 importance of this essential role by permitting the 21 appointment of William Gribben. Mr Gribben has 22 confirmed himself to have been totally without 23 qualification or experience in the area of health and 24 safety, and, as if that were not sufficiently damning, 25 estimated that less than 10% of his time was spent in 199 1 addressing this area of responsibility. 2 This represents an appalling dereliction of the duty 3 of care towards staff, health and safety, and prisoner 4 security. 5 Furthermore, and yet another gross management 6 failing, Mr Gribben had a role in financial governance 7 at HMP Maze, creating an intrinsic conflict with his 8 responsibility as the health and safety officer. His 9 successor, therefore, was fixed with many of the 10 difficulties and deficits which he had been unable to 11 address. 12 That this state of affairs could persist for three 13 years is an indictment of how NIPS and its 14 Chief Executive had come to view the importance of 15 staff, health and safety. Indeed, Mr Shannon has had to 16 acknowledge before the Inquiry that NIPS were in breach 17 of their statutory obligations under the requirement of 18 the management of Health and Safety at Work, 19 Northern Ireland Regulations 1992. Whilst others would 20 have rightly been prosecuted, those civil servants of 21 NIPS, behaving with equal abandon, suffered no censure. 22 Indeed, and instead, Birthday Honours may well have 23 followed. 24 In the nine weeks between his arrival and the murder 25 of Billy Wright, Ken Crompton's contribution to 200 1 effective management could best be described as 2 negligible. Mr Crompton appears, in fact, to have been 3 something of a passenger among the management team at 4 Maze. Specific examples of his failure include his 5 failure to acquaint himself fully with the events and 6 context of the LVF rampage, his failure as line manager 7 of the Security Department to recognise the lack of 8 a collator and rectify that deficiency forthwith, and 9 his apathy towards the work and output of the Security 10 Department itself. 11 In a reflection of the slapdash approach of NIPS, 12 there was no appropriate handover process or like we 13 call induction process between Mr Crompton and his 14 predecessor at HMP Maze. It beggars belief that this 15 failure could occur. 16 The Inquiry themselves have had an opportunity to 17 assess his evidence and demeanour. 18 Although distasteful, John Kenneway, one of the 19 murderers, describes security in the period leading up 20 to the murder as: 21 "All but collapsed. A joke". 22 Tellingly, Kenneway feels no necessity to embellish 23 his interview with tales of exploits to defeat tough, 24 rigorous security. Rather, the implication is that they 25 met with no such challenge. 201 1 In the almost total absence of meaningful security 2 measures, their murderous task appears to have been 3 altogether quite simple to perform, as the range of 4 security deficits facilitated the murder of 5 Billy Wright. 6 The failure of the prison authorities to grasp and 7 manage the dangers presented by McWilliams and Kenneway 8 was to prove catastrophic. One person who should have 9 been well-placed to help avoid this outcome was Duncan 10 McLaughlan. His role cannot be understated. 11 Duncan McLaughlan was Deputy Director of Operations in 12 Northern Ireland Prison Service between 1993 and 1997 13 and thereafter Governor I of Maghaberry between 1997 and 14 1999. 15 He was due to give evidence to the Inquiry on 16 14 April. However, following the disclosure of 17 documentation, an adjournment was sought. He 18 subsequently gave evidence on days 104-107. It 19 transpired that the discovered documentation were, in 20 fact, extracts from diaries kept by him covering 21 a relevant period between 6th January 1997 and 22 6th October 1998. 23 This correspondence contained the key statement that 24 Mr McLaughlan had entirely inadvertently given the 25 Inquiry an inaccurate answer, namely that his contact 202 1 with paramilitary organisations had stopped by the time 2 he went to work at HMP Maghaberry in 1997. 3 The Wright family simply do not accept this most 4 dubious claim and dismiss entirely the notion that 5 Duncan McLaughlan had no recollection of his extensive 6 interactions with INLA prior to his dramatic discovery, 7 so-called, of old diaries in his roof space. It cannot 8 be held credible that Mr McLaughlan totally failed to 9 recall meeting with INLA representatives on one of the 10 most fraught and dramatic days of any career as 11 a Governor I at HMP Maghaberry, the day that two of his 12 staff were taken hostage by INLA members at gunpoint. 13 His diaries revealed that Mr McLaughlan had not 14 merely met members on the evening of the hostage 15 incident, but had made a written entry to the effect the 16 firearms used had been smuggled into the prison in order 17 to murder Billy Wright. The INLA statement regarding 18 the intended use of smuggled guns seems to have eluded 19 Mr McLaughlan's decidedly selective recall. 20 Mr McLaughlan was challenged that he was telling 21 lies to the Inquiry. We invite the Panel to adjudicate 22 on this issue. 23 The Inquiry had written to Mr McLaughlan indicating 24 possession of sensitively marked intelligence documents. 25 It was quite clear that the Inquiry had in its 203 1 possession fresh Special Branch documentation, the 2 extent of which was initially unknown to Mr McLaughlan, 3 but which had a clearly unsettling effect, ultimately 4 driving Mr McLaughlan aloft, where he uncovered his 5 diaries from his roof space. 6 My Lord -- and this is directed to those with 7 Scottish blood -- the next time you walk along Princes 8 Street, passing the famous statue of Sir Walter Scott, 9 pause and think of the tangled web which had gathered 10 around Duncan's diaries in his attic for all those years 11 when first he practised to deceive. 12 Mr McLaughlan asserts that the NIO was aware of all 13 kinds of discussions he was having with paramilitaries, 14 and that his point of contact was Chris Maccabe, who was 15 at that time head of the NIO's Political Affairs 16 Division. He asserted that he did not believe that 17 anyone else within NIPS performed a similar role to 18 himself, that officials at NIPS HQ were aware of the 19 contacts he had with the INLA, and that Alan Shannon and 20 Martin Mogg were very definitely aware of it and he 21 would feed information back to them. What 22 a triumvirate! 23 Indeed, Alan Shannon confirmed that Duncan 24 McLaughlan was not on a frolic of his own. Shannon 25 acknowledged that McLaughlan was acting formally and 204 1 officially on behalf of NIPS. There was no system in 2 place whereby notes of meetings were recorded on to 3 a database in order that senior colleagues at NIPS 4 Headquarters were kept fully informed. Mr Shannon has 5 stated that McLaughlan only put notes in the system if 6 it was significant. Only five documentary records of 7 contact between McLaughlan and paramilitary 8 organisations prior to 1997 emerged. 9 We wish to make it clear on behalf of the Wright 10 family that we do not accept the bona fides of 11 Mr McLaughlan, and the repetition of his innocence in 12 oral submissions made on his behalf could perhaps well 13 be countered by the helpful advice of, "When in a hole, 14 stop digging". 15 Let us examine these diaries. On 16 March 1997 it 16 is recorded: 17 "He", Billy Wright, "has been on Rule 32 in the PSU 18 because the RUC have told us that he is at risk from 19 other prisoners, mainly from the UVF but", 20 significantly, "also from Republicans." 21 This is a particularly significant entry, because 22 this information was not formally imparted by 23 correspondence to NIPS by the RUC concerning the threat 24 from Republicans. Alan Shannon says he does not recall 25 any document from the RUC saying that there was a threat 205 1 from Republicans, nor was there anything on system from 2 McLaughlan indicating he had received this information. 3 McLaughlan's entry does, however, correspond with 4 Billy Wright's own fears as expressed to Peter Robinson 5 MP. 6 4 April 1997. McLaughlan refers to: 7 "Seamus McNeill seeing Billy Wright on Monday to 8 tell him he is getting his own wing in the Maze", 9 the day the assurance was given. McLaughlan notes: 10 "This should help me by getting rid of a number of 11 his followers at Maghaberry who are troublemakers. He 12 will be housed in H6 on the opposite wings to the INLA 13 prisoners. That will cause difficulties, and both he 14 and the INLA will react against us and each other." 15 Those last five words are of extreme significance. 16 This extract reveals a particular mindset and more 17 significantly brings into sharp focus knowledge and 18 foreseeability of the risk which co-location clearly 19 presented. This was never fed into the prison 20 intelligence system for consideration. It also clearly 21 reveals what seems to be firm knowledge on the part of 22 McLaughlan that Billy Wright was to be housed in H6 as 23 far back as before April 1997. The absence of comment 24 on this issue by the Minister and his immediate advisers 25 in disclosed documentation comes sharply into focus. 206 1 24 April 1997. Prior to a meeting of the Senior 2 Policy Group McLaughlan talked to Shannon, Mogg and 3 McNeill about Wright. The triumvirate had extended. 4 A senior official, presumably from NIPS, but whose 5 identity is redacted, indicated that he welcomed the 6 prospect of Wright killing himself. McLaughlan noted: 7 "What is disturbing is the depth of hatred that 8 people like [name redacted] feel about Wright." 9 Further hostility in high places. 10 On 27 April 1997 it is recorded of Ard Chomhairle 11 Member 3 initiating contact via the Quakers with 12 McLaughlan to talk about Billy Wright. McLaughlan then 13 contacted Mogg and Shannon: 14 "... who agreed that I should see them, although 15 when I told [name redacted], it seemed they had not 16 asked to see me." 17 The triumvirate features again. The express purpose 18 of the meeting is significant in that it is to talk 19 about Billy Wright. The express prior agreement of Mogg 20 and Shannon reveals the identities of those involved in 21 the weaving of the web. 22 The entry for 28 April 1997 is significant. This is 23 also a significant date in that the hostage-taking 24 incident took place. McLaughlan records that the 25 prisoners claimed that they wanted Billy Wright out of 207 1 the Maze. McLaughlan then records that: 2 "During the incident I had phoned Ard Chomhairle 3 Member 1, leader (?) of IRSP/INLA." 4 Interesting nowhere does McLaughlan describe any 5 expression of disquiet or disapproval to the INLA 6 leadership as his own prison staff are being held at 7 gunpoint. 8 The diary then records a meeting with the INLA on 9 that date about the move of Billy Wright to the wing in 10 the Maze also occupied by INLA. During this meeting 11 Ard Chomhairle Member 1 took the line that, "the gun had 12 been smuggled in to kill Wright". That is a central 13 phrase for this Inquiry's consideration and 14 determination. 15 In his evidence to the Inquiry McLaughlan claimed to 16 be 99% certain that he'd told Mogg about the information 17 that Billy Wright was the original target. He expressed 18 the view that Mogg should have disseminated the 19 information within the department or to Special Branch 20 and he would have expected Shannon to have been told; in 21 other words, the triumvirate should know. He expressed 22 the view that: 23 "I think once I have told Mogg as far as I was 24 concerned in a sense the job was done." 25 Mr McLaughlan says the reason he did not inform the 208 1 RUC was because he did not have a normal channel of 2 communication with them. The RUC would have been 3 present on site, and what a shame and what a disgrace 4 that Mr McLaughlan lacked a 10p piece! 5 Alan Shannon agreed in his evidence that McLaughlan, 6 possessed of this knowledge, should have passed it on to 7 Mogg, to police investigating the incident, the Governor 8 of the Maze, the Minister and Mr Shannon himself. 9 Ultimately Mr McLaughlan adopts a very blase 10 approach to the safety and security of Billy Wright. He 11 indicated that once the prisoners were gone, they were 12 gone, and that thereafter he had a prison to run. 13 It is sobering to consider Sir Richard Tilt's 14 succinct assessment: 15 "No matter how many times I look at this decision", 16 the decision to transfer, "from any and every angle 17 I can find no rational basis for the transfer within 18 three days, nor does anybody advance such a reason. It 19 is quite extraordinary that the two people were 20 transferred at that point so quickly after the incident, 21 notwithstanding whether there were threats about killing 22 Billy Wright or not. The whole thing just doesn't add 23 up at that point." 24 THE CHAIRMAN: Mr Kane, I think that will do for today, of 25 course. Could I just say, you know, at the outset I did 209 1 say it was assumed that in oral submissions parties will 2 concentrate on those parts of their written submissions 3 which they consider particularly important. It is quite 4 obvious to us all here listening to you that what you 5 have been doing is reading through the submissions. Now 6 you should assume, of course, I hope that everybody has 7 read these submissions. That's one thing. It may now 8 not be easy for you to divert from them. I understand 9 that. 10 However, what you are singularly not doing is what 11 I went on to say, and that is that you deal with any 12 matters that arise from the submissions of others. Now 13 some of the things you have been reading out have been 14 criticised, I think particularly yesterday, but they 15 have been criticised by other parties. Thus far there 16 have been very few references by you to these 17 criticisms. We would find it helpful if it is possible 18 even now for you to respond to them with your own views. 19 MR KANE: There are two matters. First of all, the matters 20 which I have been addressing to the Panel are matters 21 which we feel must be placed on the public record in the 22 course of the final public submissions to ... 23 THE CHAIRMAN: You see, I don't think any of us are 24 particularly anxious that they should be placed on the 25 public record. They are there. I mean, I assume your 210 1 client has seen them and knows what's in them. 2 MR KANE: Yes. There is a wider public audience. There is 3 concern that -- 4 THE CHAIRMAN: Is this a means of making available to the 5 great public what you have written? 6 MR KANE: It is certainly a means of ensuring that the 7 public -- 8 THE CHAIRMAN: That's why you are doing it in this way? 9 MR KANE: That was one of the reasons, yes. These are 10 matters which, if we had been, for instance, first in 11 the line, we would have been making them as part of our 12 submissions. We wouldn't have been dealing with other 13 points. I have attempted to deal with some points which 14 we feel are of importance which others have raised and 15 I have referred to some of the verbal submissions. 16 THE CHAIRMAN: Not many, but you have I know. 17 MR KANE: We have dealt with the ones which we consider are 18 of importance which are not fully addressed in the text 19 and footnotes of our very detailed written submission. 20 THE CHAIRMAN: I have in mind, for example -- it is only 21 an example -- Mr Beer's criticism of the submissions in 22 relation to Seamus McNeill and whether that undertaking 23 was given by him and, if so, when. Now admittedly 24 Mr Beer 's criticism was quite detailed, but it is 25 there, and you haven't addressed that at all. 211 1 MR KANE: Well, we say within our written submission that 2 our answer is clear. The answer is within what we have 3 written down. We stand by what we have written down. 4 THE CHAIRMAN: Well, we would find it helpful if you could 5 face up to these criticisms. They may be ill-founded 6 and therefore you can destroy them. You know, if you 7 can. If you can't, the reading will go on tomorrow for 8 the benefit of the great public outside. 9 MR KANE: Well, we have the difficulty in that we are 10 anxious not to be unduly deflected by the criticisms, 11 which we think are of little value, which others may 12 have made. We are very anxious not to be deflected from 13 our own path. It is a balancing exercise, and I will 14 take on board what your Lordship has said. 15 THE CHAIRMAN: I know at this stage it may be difficult for 16 you, because you have taken a certain line, but if you 17 could, we would find it helpful. 18 MR KANE: As I say, I will take on board what your Lordship 19 has said. 20 THE CHAIRMAN: Tomorrow morning -- you will have, of course, 21 all the time your require that you've been given. 22 MR KANE: I will find out how much time I may have left from 23 today. 24 THE CHAIRMAN: Yes. There is some. I am not suggesting 25 that that time should be trenched on at all. I keep 212 1 saying it would be helpful to us, because we have to 2 make our minds up on these things. 3 Okay. Tomorrow morning at 10 o'clock. 4 MR KANE: That's fine. 5 (4.45 pm) 6 (The hearing adjourned until 10 o'clock tomorrow morning) 7 --oo0oo-- 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 213