The following article was written by Belfast lawyer, Peter Madden, the long-time partner of the assassinated criminal solicitor, Pat Finucane. Together they founded and ran the well known Belfast legal firm Madden & Finucane. This article was delivered as a speech to mark the 26th anniversary of Pat Finucane’s death and is a forensic examination of the British government-ordered, de Silva review of the circumstances of his death at the hands of a Loyalist assassination squad at his north Belfast home on February 12th, 1989.
(I have linked the de Silva report above, so readers can access sections referred to by Mr Madden)
REVIEWING THE REVIEW
by Peter Madden
12 February 2015
This is an analysis of the de Silva Report dated 12 December 2012.
Let me start by stating that, without doubt, the most important conclusion made by de Silva was that the FRU did not know that the UDA was targeting Pat Finucane. It is my view that this conclusion exonerates the FRU for any part in Pat’s murder. FRU is the Force Research Unit which was the British Army agent handling unit in existence at the time of the murder.
In paragraph 21.209 page 414 of Vol 1 de Silva states that:
…Having considered and analysed a great deal more evidence than was available to Justice Cory, I must respectfully differ with inferences he draws in relation to the FRU’s prior knowledge of the targeting of Patrick Finucane. I am firmly of the view that in this instance Nelson withheld critical information from his handlers.
If FRU is believed by de Silva to have had no targeting information on Pat Finucane then there was no such information to pass up the chain of command to the very top. Ed Moloney gives a very good analysis of this in his online blog, Broken Elbow.
Nelson’s Journal gives an account of how Nelson passed all information from the UDA to his handlers in FRU including the targeting of Pat Finucane. Nelson shifts around a bit on different occasions about whether he passed on information or not but this issue alone should be enough to justify the establishment of a Public Inquiry because there is credible suspicion that Nelson did pass on such information to FRU. There are also allegations that FRU people were helping in the targeting of Pat.
The de Silva Review is one man’s analysis of a large amount of material. He has been selective. It is impossible to arrive at the truth unless this material is provided and analysed by others who have an interest in the issues. A public Inquiry with a number of interested parties would allow these interested parties to pursue their own theories and use the relevant material provided to make their own analysis.
There are concerns about the authenticity of much of the documentation he refers to in his report.
There is no indication in the Report as to how he validated the documents he examined.
This is one of the main objections to de Silva’s process. He has gone into minute detail by analysing the documents, particularly the Contact Forms and other intelligence documents without taking a view that some may not be genuine. He has then reached conclusions that may not be true.
More importantly he makes the assertion that he used the intelligence documents as a yardstick to test the validity of other material. He says that he had "the advantage” of having contemporaneous intelligence records. He doesn’t say how he knew they were “contemporaneous” and it would be difficult to know unless you ask questions.
At page 390 of volume 1 he states,
As with all intelligence material, the above information is necessarily limited in its evidential value, though I have not seen any material to suggest there are any doubts as to the accuracy of this information.
Judge Cory, who published his report on 1 April 2004, examined material and he was assured that he was furnished with all information that might bear on the issues he was examining and on that basis he was satisfied that his review was as comprehensive as possible. However, as de Silva has stated in this report, Judge Cory did not get all the material he was assured he would get. He doesn’t say why Cory and Stephens didnt get this material.
In chapter 11 page 250 de Silva refers to new information that has just come to light but he doesn’t say what it is. He refers to Contact Forms ( CFs ) and the Security Service’s “compendium of leaks” published in 1989 but he doesn’t make it clear if this is what he means by new information. CFs were examined by Cory.
Interestingly, Judge Cory’s document review was similar to de Silva’s in that they both had no power to subpoena witnesses nor to require the production of documents and other material. At least Cory didn’t claim to find the truth about what happened because he was clear that conflicts of evidence, which he found, could only be resolved by examining witnesses in a Public Inquiry.
|Brian Nelson, the late UDA intelligence chief and Force Research Unit agent. Just exactly when did he become a British military agent?|
He set out the areas where he could not make any findings and stated that only a Public Inquiry, where documents and witnesses could be examined, could resolve the conflicts and arrive at conclusions. In other words, a review of documents, although useful, was not the end of the matter. Judge Cory’s task was to determine if there was a prima facie case that collusion existed.
Judge Cory’s report was a far shorter exercise resulting in 115 pages compared with de Silva of 800 pages.
de Silva took a view that the papers that he examined were authentic, which in my view makes it a fundamentally flawed process.
In terms of size, the Report is certainly formidable but he has given us is snippet upon snippet of carefully selected material. Unless all the material is examined ( or as much as is legally possible to examine), it is impossible to form a view.
He refers to many documents but annexes only a few. He has picked extracts from others. He doesn’t say why. He refers to certain documents and we are not permitted to read these documents in full, let alone challenge the contents. Nor were we entitled to examine any of the original documents. He refers to documents that we did not know existed. Basically, he has read the documents and come to his own conclusions about the content. He has referred to many documents that we have not seen as if he is the only person who can make sense of them and come to the truth about them. Some of these, as he says, he has redacted and annexed but most have just been referred to in footnotes. We don’t know what other material he has examined. Where is the rest of it?
In view of the fact that there exist over a million pages of documents, he has to be selective. However, we have not been told how he selected the material. There is no explanation for failing to disclose material. We don’t know how many pages of material exists. Over a million could mean closer to two million.
Documents can be verified. Authenticity can be verified. There is a forensic way of doing this. Documents have to be examined in the context and with other documents. You have to know what to look for. If we suspect that a document is forged, we can have the original examined by an expert in that field. If we think that the contents of a document are not credible, we can explore by cross examination, where interested members of the public can see and hear witnesses.
There is an allegation by Ian Hurst ( aka Martin Ingram) that the Contact Forms (CFs) were forged. Ian Hurst was a member of FRU and a whistleblower. This has to be a starting point in any scrutiny of the bona fides of the documentation that was examined by this Review. It is incomprehensible that De Silva can come to a conclusion about this without a thorough examination of the documents and a proper examination of Ian Hurst, who he dismissed as a “Walter Mitty” character, and all those others involved. When you take into consideration that the FRU had a year to “sort out” the documents, this whole area needs examined. This was highlighted in John Ware’s Panorama programme. It took a threat to arrest the GOC General Waters to get Nelson’s intelligence material and the CFs weren’t produced to the Stevens team for nearly a year . Hurst said that the FRU had the material during this time and were doctoring it. As highlighted in Panorama, Stevens’ team thought that the documents were tampered with.
Hurst is no Walter Mitty character and I met him in Dublin a few years ago introduced by Greg Harkin. Hurst would be a crucial witness in a Public Inquiry but de Silva dismissed him without even seeing him.
This in itself raises the issue of the “cover-up” of the collusion. It is the accountability escape route. If, for example, there was incriminating material in the Nelson/FRU documents/ recordings/transcripts, there was plenty of time to get rid of it or change it. (p 410 – 415 Vol 1)
This goes to the heart of the matter.
The fact that the Stevens Investigation eventually got the FRU documentation and there was no reference to the targeting of Pat Finucane and no reference to Pat at all until the morning after the murder when Nelson phoned Margaret Walshaw, his handler. All this is very suspicious. At a Public Inquiry, Ian Hurst would not be the only witness on this issue as there are other FRU members including the commanding officers and those up the very short chain of command who could deal with this particular issue. Many of them made statements to the Stevens team.
It is inconceivable that this plot was not known to the FRU. They must have known about it and they must have known that Nelson would be in the thick of it, as chief Intelligence Officer and their only loyalist agent, according to de Silva. Questions would be asked about this at a Public Inquiry. It is just not believable that FRU did not know about the plot. It is believable that they knew about it through Nelson and it is believable that they helped Nelson with targeting Pat as they did with targeting other people and it is believable that they directed the murder and that they doctored the documentation to remove all reference to the targeting of Pat Finucane and to paint a benevolent picture of FRU’s links with Nelson.
There is also the important issue of how far up the chain of command did this plot go. The FRU had a chain of command directly to the top of government and there were very few links in the chain: agent – FRU handler – OC Det – OC FRU – CLF & GOC- Defence Minister – and then to the Joint Intelligence Committee chaired by Margaret Thatcher in London.
Due to the fact that, according to de Silva, Nelson was the British Army’s only loyalist agent, and that he reported to his handlers on a weekly basis, his weekly FRU reports could easily be dealt with at the weekly Joint Intelligence Committee meetings, in London chaired by Margaret Thatcher. It is inconceivable that Nelson was not a focus at these meetings. Nelson in his diary strongly suggests that Thatcher was a personal recipient of intelligence.
There are numerous inconsistencies in the report that cant be left on the shelf.
For example de Silva says FRU was founded in 1982 but other authors such as Mark Urban in “Big Boys Rules” quotes CLF Glover who says he established FRU in 1980 to form a ” triumvirate” with the 14th intelligence and SAS.
Cory says ”In 1985 Brian Nelson walked in off the street to offer his services to the British Army as an agent”. (page 24 Cory Report) whereas de Silva says, quoting Brian Fitzsimmons, [Nelson] “appears not to have become involved in paramilitary activity until May 1984, when he contacted the Army to offer his services as a source of intelligence" (para 6.6 at page 99 de Silva Vol 1 ).
Brigadier Arundell David Leaky, on the other hand, a director of Military Operations in the Ministry of Defence who filed an affidavit in injunction proceedings says that “In 1983 Nelson offered his services to the Army as an agent in the UDA”. This document is not referred in de Silva report nor Cory but was published in the “Sunday Tribune” on 14 April 2002 in an article by Ed Moloney. This is an example of the limited nature of the de Silva process. He was limited by virtue of his terms of reference.
So what is the truth of the recruitment of Brian Nelson? And what is the truth about the formation of FRU?
Cory says, “At this time he [Nelson] was a member of the UDA and acting as an Intelligence Officer for that organisation in West Belfast.” (para 1.45 page 24 Cory Report) but De Silva says "Despite his previous conviction for involvement in serious sectarian violence, the FRU tasked Nelson with rejoining the UDA" ( quoting from Nelson’s journal). ( para he was 6.7 page 99 of de Silva Vol 1 ).
So was he already in the UDA when he offered his services or was he ” tasked with re-joining the UDA ” after offering his services?
These are important issues because the suspicion is that he was a soldier and then a UDA sectarian killer and that these credentials made him a very good candidate for targeting uninvolved Catholics or republicans . Was this the continuation of the classic Kitsonian death squad? In other words a British military unit using local agents as killers whilst funding and supporting them and directing them.
There is a suspicion by many that Nelson never left the British army and when he went to Germany in 1985, it was not to get away from the UDA but to train with the British Army in Germany before his re- introduction in a more specialised system and when it is alleged he came back to Belfast from Germany in 1987 is it a coincidence that this coincided with a shipment of modern weaponry from South Africa to arm loyalists in a revived murder campaign against Catholics and republicans. There are many questions to be asked about this.
de Silva says that Nelson was not involved in the South African arms shipment in 1987, even though he accepts that Nelson travelled to South Africa in 1985 and discussed arms shipments to the North.
There is an interesting issue about Nelson’s trip to South Africa.
Judge Cory states that FRU paid Nelson’s expenses for the trip but de Silva doesn’t mention that at all in his report. I wonder why? The absence of this crucial bit of information from de Silva’s report is significant.
This is another example of de Silva exonerating FRU and thus the British Government, in the murders Catholics and republicans post 1987. Nelson remained in his targeting role up until his arrest in 1990.
This whole issue would be closely examined at a public inquiry where one document could lead to another and all interested parties would be entitled to examine all the documentation, as well as cross-examine relevant witnesses. None of that happened during the de Silva process.
There is so much information and misinformation in the public domain about Pat’s murder. There has to be public clarification. It can’t be allowed to be swept under the carpet by Cameron and de Silva.
This is just a short narrative of what I think are important areas that have not been properly examined in this review process and which cannot be examined properly until all the documentation is furnished, not just snippets and footnotes.
The following examples are some of the important areas that needs thorough examination in a public forum at a Public Inquiry where there is no hiding place:
the role of the RUC in Pat’s murder, from the death threats to solicitors from Castlereagh and the other holding centres of which Pat bore the brunt, to the RUC briefing by Jack Hermon to Douglas Hogg with false information about Pat’s family members. de Silva published what he says is intelligence material about this. The detail of the contact between the SB and FRU is crucial and requires a full public examination along with the connection between the RUC and the RUCSB.
He published what he calls intelligence which alleges that Pat laundered money for the IRA in the firm where we worked closely together for 10 years. I know this to be completely untrue but I don’t know who concocted it and questions need to be asked about that. He also published allegations that Pat was a finance officer and an intelligence officer in the IRA p 353 Vol 1. He cleverly makes it clear that there is no evidence that Pat was involved with the IRA but I think what is interesting about this is that de Silva published documents in Vol 2 of his report which allege just that. This is a cynical exercise in deception and there can be no excuse for it. He should not have published this material because there was no mechanism in his process for the family members, or me for that matter, to challenge it.
The fact that there was an RUC SB file on Pat which seems to have been packed with fact and fiction. Questions need to be asked about how false information got into this file.
This whole area needs explored as it will show that this intelligence information was faked beforehand to justify the murder and it had to be beforehand as some of it was briefed to Douglas Hogg in November 1988, when Hogg travelled to Belfast to meet the RUC hierarchy, according to de Silva.
The role of the FRU in its entirety and the calling of FRU witnesses to explain themselves and the role of the people in that chain of command.
There was a British army file on Pat and the word “PIRA” next to his name. de Silva accepts the British army explanation that this was only an administrative reference (whatever that means – he doesn’t say what it means) p 409/410 vol 1.
In Chapter 15 there is a what is called Propaganda Initiatives by MI5 in which Pat was targeted and where de Silva implies that the targeting of Pat in this initiative was inadvertent. This needs examined because it is new. I never heard of it before the publication of this report.
The various death threats to Pat starting in 1981 which State agents knew about but they decided not to warn Pat about them. Things might have been different if warnings were given.
There is the inconsistency in Gordon Kerr’s role, see p 488 Vol 1 that refers to Cory’s analysis of Kerr’s testimony as misleading and also referred to the highly dubious numerical analysis. de Silva challenges Cory at pages 488/489 and goes into a lengthy analysis of the FRU documentation, again accepting their authenticity and says that his analysis takes him in a different direction to that of Cory p 491. In other words Cory got it wrong, according to de Silva. This requires a full examination at a Public Inquiry as there is a clear conflict between Cory and De Silva on this crucial issue of Kerr’s evidence at NELSON’s trial. Cory said that only a Public Inquiry could resolve this issue.
The role of government ministers who were cleared by de Silva on the basis that the paperwork showed that ministers were not included in the distribution lists of some intelligence reports. de Silva says at p 500 that Government Ministers were not on the distribution list for a particular report and this is just not believable and it is also convenient. He took the view that because he didn’t see any evidence of ministerial involvement that there wasn’t any.
At pages 56-60 of Nicholas Davies book "Ten Thirty Three” the author states that Margaret Thatcher was chairman of the Joint Intelligence Committee ( JIC ) which met weekly at Downing Street and she ordered a complete review of the security and intelligence set-up in NI ( after the Brighton bomb in 1984 ) and "from that moment on Margaret Thatcher decided to become far more closely involved in the Irish question. The author states that in her memoir "The Downing Street Years”, Thatcher said she played a vital role in co-ordinating the services through the powerful and influential Joint Intelligence Committee. The Joint Irish Section (JIS) was strengthened. Interestingly de Silva refers to about half dozen books in his Report including “The Downing Street Years” but not “Ten Thirty Three” which is remarkable since it is based on Nelson and FRU. The British Government took injunction proceedings against the author to stop publication and succeeded in preventing parts of his draft from getting into the final publication. Yet none of this is mentioned in the de Silva Report.
Another area to be examined at a Public Inquiry is the reference to a redacted statement of Alan Simpson who was the RUC officer in charge of the murder investigation where Simpson says two army personnel spent an hour in Pat’s house after the murder ( p 137 Vol 2 ) and although he says that he doesn’t think there was anything sinister in that and that it happens all the time, I think questions have to be asked about it.
Finally, I would like to comment on perception.
According to the Mail Online 25 September 2009, Sir Desmond De Silva is a member of the Carlton Club, St James Street London. This club was bombed by the IRA on 25 June 1990. Lord Kaberry, who was injured in the attack, died in March 1991 aged 83. Douglas Hogg is a member of this club as is Margaret Thatcher, John Major and Boris Johnson and other Tory notables. Past members were Winston Churchill and Ted Heath. The club describes itself as the "oldest, most elite, and most important of all Conservative clubs.” Membership of the club is by nomination and election only. He is also a member of the Naval and Military Club and Brooks club.
So there you have it. Cameron obviously cared little that there might be a perception that de Silva might be biased in some way. It’s unlikely that he would ever be selected to head a Public Inquiry into Pat’s murder due to this perceived bias.
I dont know how many times throughout this report de Silva refers to his "full public account”. It is not a full account. It is definitely not a public account and it is so flawed in its failure to authenticate documentation that it is not anywhere near an account of the truth.
David Cameron made a statement in the House of Commons on 12 October 2011 that "the really important thing .. is to open up and tell the truth” but the truth will have to wait for another day.