The Billy Wright Inquiry Final Submissions

Hearing: 1st July 2009, day 155

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BILLY WRIGHT

PUBLIC INQUIRY

 

 

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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

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 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."

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 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.

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 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.

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 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.

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 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

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 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.

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 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

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 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

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 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

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 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

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 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

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 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

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 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

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 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)

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 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

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 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

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 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

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 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

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 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.

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 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

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 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

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 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

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 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.

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 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

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 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

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 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

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 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.

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 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

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 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)

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