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REGINA

-V-

BRIAN NELSON

Before

THE RIGHT HONORABLE LORD JUSTICE KELLY

On

WEDNESDAY, 29TH JANUARY 1992

At

BELFAST CROWN COURT

EVIDENCE OF WITNESS 'COLONEL'

PLEA IN MITIGATION BY MR BOAL QC


Wednesday, 29th January 1992

R V Brian Nelson



MR BOAL:I propose, my Lord, first to call a witness and, because of the highly sensitive nature of the witness and his present and past activity, I would ask leave that he should not in fact be required publicly to give his name, that he should write his name, hand it to the Court and it should be available to the Court and to nobody else.
LORD JUSTICE KELLY: Very well.
MR BOAL: Would you come forward, please?
Witness 'Colonel' Sworn
Examination in chief by MR BOAL:
Q.:I will call you Colonel, all right?
A.: Thank you, yes.
Q.:You are a Colonel in the Army?
A.: I am, yes.
Q.:In 1985, in 1986, '87 what was your position?
A.: I was in 1986 or from '86 to '89, I was commanding a unit of the British Army in Northern Ireland engaged in agent handling.
Q.:In that position did you come to be aware of the existence of Brian Nelson the accused?
A.: Yes, I did. In January 1987 we were reviewing our current agent coverage and we identified a gap in our coverage of the loyalist paramilitaries and we examined the case of Brian Nelson and decided that we would try and re-recruit him.
Q.:Where was he at the time?
A.: He was in Germany at that time.
Q.:Doing what to your knowledge?
A.: He was, he had employment I believe as a roof tiler.
Q.:Had you been aware of his involvement in UDA activities before we went to Germany?
A.: Yes. When his name was first disclosed to me obviously we looked at the past files so I was, therefore, made aware of his previous activities.
Q.:What did you do as a result of your decision to re-recruit him?
A.: Well, I first had to consult with the security service, but having done that and gained permission to go ahead with the recruitment, or the re-recruitment, we then initiated the procedures and brought him back from Germany and continued with the case from then on.
Q.:To your knowledge did he have employment in Germany at that time?
A.: Yes, he did.
Q.:Was that lucrative employment?
A.: I believe he was well paid, yes.
Q.:And was he settled there with his wife and family?
A.: He was indeed.
Q.:In order to encourage his return what did you do?
A.: We discussed the matter with him and explained to him our aims, our aims being that we wished to infiltrate him into the loyalist paramilitaries in order to gain inside knowledge of their workings an in order to prevent or at the very least limit their murderous activities. Having explained that we then said that we would obviously make recompense for the disruption of his life-style, the consequent disruption to his family and the difficulties they were going to incur and that we would help him to settle in Belfast and make sure that he had enough money to look after and support his wife and his sons.
Q.:From what you say your arrangements, financial arrangements would involve two matters, his transfer from Germany to Northern Ireland?
A.: That is correct.
Q.:And the consequential expense that would be for him, and secondly his financial maintenance from there on?
A.: That is correct, yes.
Q.:What arrangements were made for his financial arrangements from then on?
A.: From then on he was paid a retainer or a salary if you want to call it that, which was aimed purely at helping him support his family. He was not paid by results. That's the single most effective way of running agents.
Q.:How much was he paid?
A.: He was paid approximately £200 a week.
Q.:Was it your knowledge that that was considerably less than he was earning in Germany in the position he was in? A.: I think bearing in mind the disruption to his previous life-style and the difficulties the move placed him in, he was not placed at an advantage by that sort of payment. I don't believe he gained materially at all from his time cooperating and working with us.
Q.:Did you ascertain directly what he had been earning in Germany?
A.: No, but I believe it was in comparative terms more than the £200 a week.
Q.:Now, you have already said that, in fact, he was not paid by results, was he ever paid a retainer more than two hundred pounds a week?
A.: From my memory of our files in which we record all these matters I don't believe so.
Q.:Now, the general purpose of re-recruiting him you say has been explained to the Court when he was brought back from Germany in the manner you described. Did he, in fact, join the UDA again?
A.: Yes, he did, yes, but we had a difficulty here, our aim was to gain inside knowledge and at the same time we did not want him to get involved in the murder gangs associated with the UDA or the other loyalist paramilitaries therefore we had to decide where he could best be infiltrated in order that we could gain information about possible targets for assassination and pass them on to the RUC in the shape of warning reports without getting him involved in the murder gangs themselves and so for that reason---
Q.:What was the best niche as you saw for him?
A.: The best niche at the time we could see was to infiltrate him into the intelligence structure.
Q.:Of course I'm sure it was to your knowledge that he had been involved in the intelligence structure before he went away in 1985?
A.: Yes, it was and therefore he had some credibility with his associates.
Q.:Yes.
LORD JUSTICE KELLY: Well, was it your intention he should get in touch with the RUC and be in contact with them throughout?
THE WITNESS: No Sir, the system we use is that we would run the agent and that we would be responsible for passing on his information to the RUC which we did, of course, in all cases.
MR BOAL: He was your agent?
A.: He was our agent.
Q.:To whom was his identity known?
A.: His identity was known to a very small circle of people. They included senior Special Branch officers at Regional and Headquarters level and two senior members of the security service. They were not incidentally known to senior officers in the Army. His identity was not known apart from myself and my own colleagues in my own unit.
LORD JUSTICE KELLY: Were they known to the RUC?
THE WITNESS: Yes, sir they were, yes my Lord.
MR BOAL: When you say 'they' that is his identity. LORD JUSTCIE KELLY: His identity?
THE WITNESS: His identity was known to the senior Special Branch officers at Regional and Headquarters level in the RUC.
MR BOAL: Now you have indicated to the Court what your purpose was and the difficulty that you saw in achieving that purpose, that is not to involve him in murder gangs. What instructions would he have been given at that time in order to effect your purpose?
A.: This was a very difficult matter because there are no really laid down guidelines that are applicable to the situation in Northern Ireland where we're talking about infiltrating terrorist organisation. [sic]
Q.:Just stop there. Are there, in fact, guidelines at all issued by the Home Office for such a situation?
A.: There are Home Office guidelines that I'm aware of.
Q.:What are they appropriate for?
A.: In my opinion they're more appropriate for dealing with the criminal fraternity in the East End of London rather than the reality of the terrorist situation in Northern Ireland.
Q.:Why do you say that?
A.: I say that because in order to gain inside knowledge which we desperately need of the terrorist organisations in order we can save life [sic], that we can prevent attacks taking place, that we can prevent assassinations that we can make arrests, that we can get recoveries of weapons and explosives you must have an agent who is in a terrorist organisation. Now, the current Home Office guidelines from my memory of them make it quite clear that any such activity by an agent is, in effect, a criminal act.
Q.:If, for example, the Home Office guidelines were that the agent should not commit a criminal offence my being a member of the IRA or a member of the UVF or such proscribed organisation he would be committing a criminal offence?
A.: Absolutely, yes.
Q.:And therefore he would be debarred from being used if the Home Office guidelines were followed rigidly?
A.: Correct.
Q.:That's really what you're saying?
A.: Yes.
MR BOAL: My Lord, I'm sorry I've got to put it in this way I haven't got the Home Office guidelines. The defence has asked the Home Office for it in order that the Court may be properly advised as to the framework within which in fact the agents should have been working, we were not granted them and I've got, therefore, to put the questions in the rather speculative way that I do I'm sorry about that.
LORD JUSTICE KELLY: He seems to imply that they're rather irrelevant in this case.
MR BOAL: Not so much irrelevant as inappropriate. That's what you're saying? A.: Yes, I am, yes.
Q.:Do you find any help from them at all in the Northern Ireland terrorist situation?
A.: I think they make things very difficult for anyone who is trying to run agents or infiltrate agents into a terrorist organisation in the midst of the terrorists in order to get the information we require.
Q.:Can you observe the guidelines and have an agent in the IRA or UVF?
A.: No, not in my opinion.
Q.:Do you know as a matter of interest if any attention has been paid to this problem?
A.: This problem, to the best of my knowledge, was actually raised at the outset of the Stevens' Inquiry or around that time, I can't remember the exact date, and we did raise concerns up until then I hadn't actually, myself, been ,made aware that too closely of what the guidelines had been they were not something regularly used and it was not until around that stage Home Office guidelines were shown to me. We raised concerns obviously straight away and it was my understanding that something was going to be done about this. I really do not know whether since then anything has been done about it.
Q.:It hasn't reached you anyway?
A.: No.
Q.:Or this court. Now, to go back to his return and reinvolvement to your knowledge what did he, in fact, involve himself in, when he returned?
A.: What he did, and he had a very difficult problem here because we had to get him into a position where he had the confidence and trust of his associates among paramilitary groupings and, therefore, we tried to get him to get involved in the intelligence structure to make it clear that he was an efficient collator, he was a person that could be trusted and that would be able to research the intelligence records that he already had and had come into his possession the minute that he became involved again. And we really tried to get into a position whereby any targets for assassination were being discussed with him and his system so that he could inform us so we, in turn, could inform the RUC and indeed that happened on many occasions. We were quite clear that we could never guarantee one hundred per cent that he would be privy to life-saving information all of the time, that he would be privy in advance to the paramilitary plans.
Q.:I'll come to that in a moment. It's very useful that you should say that, but just for the moment as an intelligence officer he would be required to have a number of documents?
A.: Yes he would, yes.
Q.:You knew that?
A.: We knew that because once he had managed to gain the confidence of his associates over the first few weeks and months, he was given charge of a large amount of material that was already in the UDA hands.
Q.:What did he do with that?
A.: He brought it to us, we studied it, photocopied it where necessary for reporting, passed parts of it to the RUC that was relevant for their comment and then generally, for security reasons obviously for his security and gave them back to him and he took them to where he would have them.
Q.:So there's no doubt about what you were saying, that was a bulk transfer that he made to you initially?
A.: Yes, it was it was quite a large amount of documents that he showed us.
LORD JUSTICE KELLY: Can you say when he did it, when he gave it to you?
THE WITNESS: My Lord, from memory I think this was in the first half of 1987. I think perhaps May 1987.
MR BOAL: Pretty well as soon as he got his feet in the organisation?
A.: Yes.
Q.:And that was passed to you in bulk?
A.: Yes.
Q.:It was analysed by you, some copies were taken?
A.: Yes there was a large amount of material that was duplicated. The sort of things we're talking about are photomontages, reports from sectors of the security forces and all sectors of the security forces and a large amount of material that they themselves had researched and it was brought to us and we looked at it and we reported on it.
Q.:Now, that's the bulk transfer?
A.: Yes.
Q.:Thereafter, that is after the 1987, the latter part of 1987, 1988, '89, were you aware that re received further documents?
A.: Yes, we were, and in almost every case when it was conveniently safe for him to do so he brought them to us and we would photocopy them and then pass them on in the form of reports and then he would take them back to his safe hiding place.
Q.:And if at any time you required sight of a document, either initially or a second sight of it, were you always able to obtain that from him?
A.: From memory, I cannot remember ever having difficulty getting documents from him. If there was a difficulty or a delay it was because we had serious security considerations for his own safety, but generally speaking if we wanted the documents we got them and that was of course exemplified when finally the whole of the intelligence records within his personal possession were brought out and we asked him for them and he gave them willingly and we took them into our care.
Q.:At one time the intelligence documents, we will call them the intelligence documents of the UDA, were transferred from one physical place in Belfast to another?
A.: Yes, they were. And this was really - -------
Q.:Were you told about that beforehand?
A.: Yes, we were and indeed we helped to facilitate this transfer by giving him a sort of secure passage. And the reason we wanted him to move them was because he had, I think I believe, them in his own house and we wanted him to move them to another house where they would be safer. And in doing so we tried to make the position as safe as possible by informing the RUC that we had an interest in that address, the new address. I can't remember myself exactly how that was briefed to the RUC, I can't comment on that, but we did tell them this was a normal practice. If there were houses of interest to either my own organisation or to Special Branch or any other organisations, it was normal for the Special Branch to keep watch on these addresses so that if other elements of the RUC, uniformed branch or the CID wished to do a search for any reason, at least Special Branch interests and our interests could be looked after in advance and this was all for agent protection obviously.
Q.:Does it just mean so that they wouldn't be searched?
A.: Yes, unless absolutely necessary. It was to allow us to maintain the agent's security.
LORD JUSTICE KELLY: You don't consider the documentation was enough, you wanted something more from him, did you?
MR BOAL: I'll be dealing with that, my Lord. LORD JUSTICEKELLY: May I ask a question now?
MR BOAL: I'm dealing with documents at the moment.
LORD JUSTICE KELLY: What more did you want from him apart from passing documentation?
THE WITNESS: My Lord, we wanted as much information as we could from him about the inner workings of the loyalist paramilitaries, his associates at the top level in the UDA, what their plans were, what their policies were, anything he could tell us about the workings, but most of all of course we wanted to find out from him what their intentions were with regard to murderous activities. And by placing him in that position of course, and because he was in charge of the records, this meant that if planning was going on in many cases they would come to him or come to his structure and say what do you know about this, what do you know about that and that gave us an immediate clue as to the sort of people that they were planning to assassinate or they were thinking about planning to assassinate. And, therefore, that was potentially life saving information.
MR BOAL: Now, you knew about the documents, you knew where they were, you had copies of them when you wished them.
A.: Yes.
Q.:What use was he making of the documents to your knowledge?
A.: Well, he of course is the senior intelligence officer, as he eventually became, but an an intelligence officer had to obey the orders of his superiors in the organisation and they would be the ones that would come to him and say: Right, we're interested in such and such a personality, have you got any information on him, have you got a photograph of him, have you got an address for him? In many cases he did, in some case he didn't and he would obviously give the information if he had it, but at the same time he was them telling us and we were passing it on in the form of reports that there was an interest in this particular person.
Q.:So first you knew that he was making use of them in this way?
A.: We did indeed, yes.
Q.:Secondly when he made use of them in this way how did he convey that to you?
A.: He was normally met on a regular basis and that sort of information would normally be passed on when he was met. Occasionally, if it was a pressing point and there was a worry that some action might be going to take place in a short space of time, he would telephone in. But telephoning is a particularly dangerous means of passing information, it wasn't something that was necessarily encouraged.
Q.:How often would these regular meetings take place?
A.: It's difficult to be precise because there would be no pattern for obvious security reasons, but perhaps if I say on a regular, almost weekly basis.
Q.:You, because of your position over the years, have some understanding as to how these paramilitary organisations work. There is a principle known colloquially as the 'need to know' principle. Would you just explain that to his Lordship?
A.: Yes, my Lord. The need to know principle is quite clear. We wish to restrict knowledge of the agent's identity to-----
Q.:No, sorry, within the paramilitary organisation how do they operate the need to know principle?
A.: Quite clearly because they work in compartments and, therefore, in relation to the intelligence structure, for instance, a murder gang or a leader of a murder gang might well come along to the intelligence officer and say what have you got about a particular personality and would get the answer. He wouldn't say any more necessarily. He could go away them and plan whatever he had to plan or to take the things forwards, and the intelligence officer was not really in a position to know who was going to be involved or when attacks were going to take place or how the planning was going to be carried out. In some cases he might find out, but by no means in all cases and there were many occasions when Brian Nelson, as an intelligence officer, found out only that there was an interest in a particular name or a particular personality and he passed that on, but we weren't in a position to find out any more about it. Whenever we could we did or he did.
Q.:There would be occasions, would there, when he would be indicating to you, when I mean you I mean the intelligence structure, that interest was being expressed on a number of occasions against a particular person?
A.: Yes, indeed, and there were several cases where targets for assassination were brought to our notice by Brian Nelson and we produce reports. I think in all, if you wish me to quote statistics?
Q.:Yes, could you give us some numbers?
A.: Yes. I think in the period from 1985 to 1990, or until his arrest, we produced on Brian Nelson's information something like 730 reports concerning threats to 217 separate individuals.
Q.:That's threats to the life of you mean?
A.: Yes, threats to the life of individuals. In all cases these were passed on for action. Of the 217 of interest, that of the 217 personalities that were named in his reports or our reports, five of them died. One at the hands of the security forces in Gibraltar, one from natural causes and three at the hands of the Protestant paramilitaries, and I think I'm referring to three names Slane, Davidson and Craig
Q.:And another. In your view what is that indicative of?
A.: In my view it's indicative that he was a prolific provider of information, that although there were occasions when loyalists attacks did take place, where murders did take place, he was not privy to advance information about these activities, but he did produce a tremendous amount of information referring to their plans and their targets for assassination and this was of course of life saving potential.
Q.:In the case of two of the, that is McDaid and Slane, Mr Kerr's already dealt with that in opening, in fact I understand he did provide information on a number of occasions about both those people before their deaths.
A.: Well, in the Slane case certainly. In the McDaid case of course there was a mistaken identity. He had been reporting on a number of occasions the possible threat or the threat of Declan McDaid.
Q.:That's his brother.
A.: He was not aware that there was any interest in Terence McDaid and, therefore, when Terence McDaid was killed he was shocked, the fact was that there had been a dispute over addresses and he gad made it quite clear that the address at which Terence McDaid was staying was not the address that Declan McDaid was staying. And afterwards he took his associates to task and said, to the best of my memory, my Lord, I did not tell you that that address was Declan McDaid's address. I did not give any clearance for further action.
Q.:To remedy a clear misunderstanding that is publicly entertained apparently, does your knowledge allow you to say that although he gave information about McDaid he gave information about Slane that that information was not specific enough to prevent the deaths of either Slane or McDaid?
A.: No, he was not aware, as far as I can remember from my recollection of the facts, he was not aware that there was a particular imminent threat to Slane, he knew that Slane was, I think, one of about four targets that were being considered and he passed that to us, and we in turn passed it on.
Q.:Quite frankly or quite bluntly are there a number of people who owe their lives to him at the present time?
A.: Indeed they are including some very well known personalities.
Q.:Some perhaps who have been complaining about his activities?
A.: That might well be the case, certainly in early '87 around May 1987 the then President of Sinn Fein, Mr Adams, came under threat and ion this occasion we were able, through Brian Nelson, to gain quite a lot of knowledge about their plans to assassinate him.
Q.:It was quite specific on this occasion?
A.: Yes, it was indeed, we knew where they were going to carry out the assassination.
Q.:And the time?
A.:. And when.
Q.:And the manner?
A.: That's correct.
Q.:And then?
A.: And then as a result of that we were able to pass it on to the police. We were able to plan an exploitation operation to prevent it happening.
Q.:I don't particularly want to go into personalities but the one you gave it us is a good example. Have you any doubt that his life was saved by Nelson?
A.: I have no doubt whatsoever that that attack might well have taken place without anyone's knowledge.
Q.:It was, I think, proposed to be done by a particular effective and deadly way?
A.: Yes, it was going to be carried out by a limpet mine attack, my Lord, on Mr Adams' car.
Q.:On the roof of his car?
A.: Yes.
Q.:He was passing this sort of information to you over a very significant period of time, as you have said, and in a very significant volume of cases. From your understanding of his position, of your understandings of the workings of the UDA, can you explain to the Court the difficulties that he would have had in respect to his own security in doing that?
A.: Yes absolutely. He was placed in a most difficult position. Terrorist organisations in the UDA and UVF and other paramilitary organisations, they're all the same on this, they are very mindful of their own security, they're very conscious of the fact that they might have agents within their midst and they're constantly on the look out for them. Therefore, Brian Nelson, as an agent within their midst, was in a particularly hazardous activity. There are known incidents of agents being follow [sic] to a meeting, being identified with their handlers and being compromised as a result. Telephone calls are even risky. There are known incidents of the agents being compromised through cross line situations, even being seen in a public telephone box and even telephone calls at home are risky because the danger of being heard by children who might pass it on, pass some information on. So he was in a particularly vulnerable position there and he, of course, faced almost certain brutal interrogation and an equally brutal death if he were even compromised the slightest slip could have led to being compromised. He, therefore, was in a position of great strain. His health suffered, I know, as a result of the strain he was placed under over the three year period. He was ---he had a Schizophrenic existence. He was torn between the requirements of his terrorist associates, his need to allay their suspicions at all times, to gain their confidence and at the same time he had to satisfy the requirements of his handlers to provide as much information as he could. This was a very difficult thing for him to do and we must remember, my Lord, that for ninety- five per cent of the time he was on his own. Certainly he met his handlers regularly but we're only talking about a few hours a week where they could counsel him and help him and try and instruct him. The rest if the time he was on his own. The rest of the time he was, to quote a cliché, 'out in the cold'. He was responsible for making the decisions about the information. He had to rely on his own judgement. He had to decide whether information was so important that it needed to be passed immediately at risk to himself or whether it could wait until the next meeting. He had to decide whether he should go along with his paramilitary associates in their activities because his life would be in danger and he would come under suspicion if he didn't. he had to decide whether to encourage them or to try and discourage them by, for instance, saying: ³No I don't think that target is worth while because it's too dangerous², or give some other excuse. He was responsible for making all these decisions himself and it's no surprise, it's certainly no surprise to me, that he didn't get it right all of the time. He was in an extremely difficult position,. I don't believe there is anyone in this Court room here who would want to be placed in that position, who would be as courageous as Brian Nelson was in that position, he was bound to make mistakes and undoubtedly he did. There were times when he did not pass on the information quickly enough, when he didn't telephone when he should have telephoned. There are times when he perhaps got too involved with the paramilitary associates, where he forgot temporarily his true role but they're all very explainable as far as I'm concerned because of the strain and the dangers, the strain that he was under and the dangers he lived with day ion and day out. He is actually a very courageous man.
LORD JUSTICE KELLY: In what way did he get too involved at times?
THE WITNESS: There were times, my Lord, when he was asked to try and provide information about people and he would get involved in trying to find out where they lived, he would take a personal interest in finding out where they lived so he could tell the terrorist associates or try and find out about a person's movements in order so he could tell the terrorist associates and, of course he did tell us as well., and normally, in fact in all cases afterwards and for that reason he was taken to task by his handlers but I go back again to what I say, it was his judgement at the time and we had to rely on his judgement and we could try and counsel him as much as possible and say: You must not get too much involved, you must play a neutral line, keep their confidence and get the information to us. It was extremely difficult for him, I do understand that.
MR BOAL: You recognise it was almost impossible to play a neutral line and at the same time get information that was worthwhile passing to you?
A.: I think it's worthwhile saying there's absolutely no doubt in my mind that Brian Nelson was not loyal to the UDA, Brian Nelson was loyal to the Army. He wished to help the Army in its attempts to counter terrorism and to save life, he wished to do that. That was his prime motivation. He wanted to save life, he wanted to make up for the past misdemeanours, he wanted to help bring down the loyalist paramilitary organisations and he wanted to help the Army. He was a soldier by tradition we shouldn't forget that and we wanted to continue to be a soldier.
Q.:It's an exemplification perhaps of the dangerous life he was living, did you become aware of one occasion in which he, in fact, came under suspicion and was interrogated in a brutal way?
A.: He was indeed interrogated. He came under suspicion, he was subject to brutal interrogation. He was electrocuted with a cattle prod on a number of occasions, and he survived through really the courage that we had come to expect of him.
LORD JUSTICE KELLY: Can you say when this was?
THE WITNESS: My Lord, from memory I think it was in 1988.
MR BOAL: In case of misunderstanding you said electrocuted on a number of occasions, it was one occasion but electrocuted on a number of time?
A.: It was one occasion but the cattle prod was used a number of times.
MR BOAL: August 1988 it was.
A.: Is it possible for me to have a glass of water?
Q.:Certainly? The Court has asked the date and you have heard the date it was August 1988. Despite that he continued with his work after that time?
A.: Oh yes, he did and he survived that occasion really through courage and I remember afterwards not surprisingly he had rather too much drink and I remember that he phoned in on the records fairly drunk but after that that released tension and he got on with it and he survived and regained the confidence of the associates and continued to report to us.
Q.:I would now like you to tell the Court the value that you placed upon the reports and information you got from him and the use that you made of it.
A.: Yes. In judging the value of any intelligence reports there are two things that we have to consider. First of all, the reliability of the agent and secondly, the likelihood or not of the information. And we went to a great deal of trouble to assess the reports that we sent out were graded accordingly. As far as the reliability of the agent was concerned, my Lord, we had to examine whether he was by nature reliable, whether there was any history of him having lied to us, whether there was any history of him having held information, whether he recalled names and dates and places accurately or whether he had a bad memory. We had to assess how he had got the information, had he got it himself or had he got it from someone else and in what circumstances. Was it, for instance, a pub conversation or was it at a formal meeting? All these factors were applicable to our assessment of the reliability of the agent. When it came to the information from other sources to see if there were any corroboration. We had to judge the reports, the likelihood of the reports against what we knew to be the general intelligence picture. We had again to go into the detail of how he had actually found out the information, who had told him, what were the circumstances, exactly what was said. And having done that we would produce an intelligence report with an assessment of his value. Now, having said all that the assessment of these reports was carried out on a number of stages. It was carried out by the handler himself. It was carried out by his immediate superiors. It was then carried out by myself and by my senior colleague in my headquarters. Furthermore, it was carried out by the recipients of the information which would be Special Branch, RUC Special Branch at regional and headquarters level, security service desk officers, military civilian and police assessments staff. All these people would have a say in commenting on the report.
Q.:In a sentence how did you regard the quality of the material that you obtained from him?
A.: Well, as far as we were concerned, and I had no reports from anyone else to the contrary, the reports were of a high value, they were accurate and they were passed on in that sprit and were received in that spirit.
Q.:Perhaps to illustrate the quality that you attributed to these reports, to whom did you in fact pass them on?
A.: Well, the reports were passed on in a variety of ways and this was common to most of our reporting. As a routine measure the essentials of the information were always passed to RUC Special Branch in intelligence reports. They were also passed to military addresses, to civilian addressees in the security apparatus. In addition to that with an agent of his standing and access, we would often produce extra reports which were much more detailed and these reports would go to people who knew his identity, i.e. we're talking about senior Special Branch officers, security service officers. In addition to that regular verbal briefings were carried out on his information. Now, I myself gave monthly briefings to GOC, to the CLF, to the director and coordinator of intelligence and his senior security service officers. And it would be quite normal for Brian Nelson's case and his information to be referred to in these monthly briefings. Furthermore we would have further dissemination of these reports was possible through these other agencies. For example, the Chief Constable would have been made aware, it would have been the Special Branch responsibility to inform the Chief Constable, for instance there was information relating to leaks of information from the security forces to the loyalist paramilitaries and I know that that was brought to the attention of the Chief Constable. At the same time there was information produced that referred to possible loyalist attacks in the Republic of Ireland and Special Branch would have been responsible for disseminating that further to Dublin. As far as Stormont is concerned, and obviously the Secretary of State might have an interest in some of the reports. In other words Brian Nelson's product and his reporting was passed throughout the intelligence community and at a high level, and from that point of view he has to be considered a very important agent, certainly as far as we were concerned and certainly as far as I'm concerned he was a very important agent of some standing and his product was appreciated.
LORD JUSTICE KELLY: Do I take it that you had personal knowledge of all these five conspiracies to murder that I am dealing with?
THE WITNESS: I am aware, yes, my Lord, I am aware of the information that was passed relating to these conspiracies to murder. He in fact reported the threats to the individuals concerned on more than one occasion, in some cases, I think in the case of Mr Gillen there were at least 12 reports before the incident which led to the conspiracy charges. I think there was something like 12 reports, but in all there was something like 28 reports produced about a threat to Mr Gillen's life.
LORD JUSTICE KELLY: he seemed to initiate some of these himself or with others.
THE WITNESS: My Lord, he was working within a structure and he was the intelligence officer and he was expected to produce intelligence that would include targeting intelligence or targeting information.
LORD JUSTICE KELLY: But from your point of view was he supposed to do this, to start a conspiracy off by furnishing a name or possible target?
THE WITNESS: Sir, to the best of my knowledge I can't remember him actually initiating something. There would be discussions with his terrorist colleagues or his paramilitary colleagues at which names would come up. It was never our intention, nor indeed his intention, to initiate procedures at any stage of the game and from my recollection of the files I do not believe that that was the case.
LORD JUSTICE KELLY: He was asked to provide a name or someone, as the word was used, and he would choose a person as a possible target.
THE WITNESS: Well, he was in a position, my Lord, where he was the intelligence officer and they were saying to him: Right, we want a target, you are the man with the records, you produce a name. He wasn't really in a position for his own security to say: No, I'm not going to give you any names. So he would give a name, but then he would tell us if that were the case and if that's the way it happened.
MR BOAL: Arising out of that, I will be telling the Court, in light of questions the Court has just put to you presently, I will be telling the Court that on one occasion a person who was known by him to be a murderer took a card from him, that's a personality card, looked at it and put it back in the file again without telling him who it was. He reported this to his handlers and his handlers said do your best to avoid that sort of thing happening again, because now we don't know who they're targeting, which led him then when he was asked for a target, bearing in mind the advice of his handlers, to give them a target and pass on that information to the security services. Would you agree that that was a proper way for him to act in the circumstances?
A.: Yes.
Q.:I'm not saying whether it's legal or legalistic, but in your context was that a proper way for him to act?
A.: Bearing in mind the difficult position he was in, bearing in mind the fact that he was constantly under threat, that he was never sure of his associates, there was always a doubt in his mind as to whether they really trusted him. He had to be very careful as to how he played them and, therefore, if they were asking him for information and asking him to do his job as an intelligence officer within the UDA, he had to show willing. And the key was that whenever he could, and in as timely a fashion as possible, he would then report that to us so that we were in a position to issue warnings and could take counter action.
Q.:As to whether that could be said properly to initiate a conspiracy or not I will deal with perhaps presently but did you see from your point of view anything wrong with his coping with that situation in the way I have described?
A.: No, I believe he had very little alternative without drawing attention to himself and without coming under suspicion. They were too willing to jump on him from that point of view if he had stopped cooperating and if he had not passed information on----
Q.:If he had said: No I'm not going to give you one, what would have happened?
A.: Well, he might well have got a clout round the ear, on the other case it might have been a lot worse than that, he would have come under suspicion.
Q.:Would he have remained intelligence officer very long?
A.: I doubt it very much.
Q.:On one occasion, as an example of the sort of information that you're talking about, do you recall one occasion in which you're talking about, do you recall one occasion in which you were told by him that he had been asked by a named person, a known killer, to provide him with a photograph and that photograph contained two people? A.: Yes.
Q.:And both he and his handlers were misled into thinking that the interest of the paramilitaries was directed to one of them whereas in the event it turned out to be the other?
A.: That's correct, yes.
Q.:Would you explain that to the Court?
A.: To the best of my memory, my Lord, there was paramilitaries wanted to retaliate for a murder of one of their own, I can't remember all the details I'm afraid. And they said they were interested in a particular person and they said to Brian Nelson did he have a photograph of that particular person.
Q.:Coming of the courthouse?
A.: Coming out---well they asked him for a photograph he said yes, he did. He produced a photograph of this particular individual coming out of the courthouse and showed it to them and then he reported that to us and we had every reason to believe, as he did, that that was the target they were aiming to assassinate.
Q.:But in the event it turned out to be the other person?
A.: Indeed, it was, yes.
Q.:But---
LORD JUSTICE KELLY: Sorry, to interrupt. Did Nelson only have possession and custody of the photographs and information about these possible victims? Did the rest of the organisation have copies?
THE WITNESS: Yes, indeed they did and, of course, we have to remember that there were other paramilitaries, the paramilitaries were in other regions and they had sub-groupings as well as the main group. He was at the top level and, therefore, he had what were really supposed to be the central files but we were aware that there were other files or other photographs and other information held by other sections of the paramilitaries. We could only do what we could within the area of his concern. For instance, murders or attacks took place really outside Belfast or on the outskirts of Belfast, he would have no access to that sort of information.
LORD JUSTICE KELLY: I would have thought there would have been copies of the information and photographs available to other members of the organisation apart from Nelson?
THE WITNESS: Well, of course, if he were asked to pass photographs and came under orders and was told by his immediate associates we want photographs for so and so, or for such and such a region, he would not really be in a position to refuse that order.
MR BOAL: That was his position?
A.: Yes, that was his position.
Q.:Would you have been pleased if he had refused?
A.: Well, if he had refused there is no doubt that his position as the intelligence officer would have been considerably eroded and therefore, in the long term we would have lost out on his intelligence and at the same time he would himself have been placed in danger.
Q.:Lastly, I would like you to deal with your assessment of his motivation; money, are you satisfied that money had nothing to do with it?
A.: Brian Nelson's motivation was much more honourable and reliable than money, than financial motivation. There were two factors in determining his motivation really. The motivation was something that we looked at in all our agent case work in some depth as we did all manner of other things to do with the personality of the agent. We would often discuss with the agent family problems, his worries, his anxieties, his aspirations, and we would be constantly looking to assess and reassess his motivation and that was done at various levels not just by the handler often the handler wasn't in the best position to judge that, he was often too close it had to be done further back, by those sitting looking further back at reports with a more objective view just to try and judge the man. Now, as far as he was concerned I have no doubt in my mind that his motivation was to make up for his past misdemeanours to save life, and to bring down, eventually, the terrorist organisations, but I think probably the biggest motivation of all was team spirit and his loyalty to the Army. As a matter of course it was our policy with Army agents to encourage them in this business of team spirit. We wanted you make clear to them that it was a team effort and they were probably -- -or they were the most important elements of the team, the agent was at the sharp end and the handlers were supporting them as they could and Brian Nelson took to that, I believe, very clearly. He wanted to be a member of the team and he wanted to continue to work with the Army and, as I have said already, his loyalty was to the Army and to the security forces and the security system not to the UD A.: He actually put country before family, I believe, because of the risks he took and the disruption to his family life. He put country before family and to that extent he was very loyal to the system and it embarrasses me, personally, that the system, and we've already discussed the business of guidelines, has been unable to recognise the real difficulties of running agents within a terrorist organisation, has been unable to recognise the dichotomy between terrorist or counter terrorist situation and a law and order situation and as a result Brian Nelson is a victim of the system to which he was actually very loyal. I feel a personal moral responsibility to Brian Nelson because whatever he have done or not have done, he wouldn't have done it if I hadn't been responsible for ordering his re-recruitment in January 1987. I believe, however, that the real moral responsibility doesn't lie with individuals or any organisations that are involved in this business, but within a system that hasn't been able to come to terms with the peculiarities and the difficulties of the agent work in Northern Ireland.
MR BOAL: Thank you.
LORD JUSTICE KELLY: Mr Kerr? xxxxCross examination by Mr B Kerr:yyyy
MR B KERR: Colonel, has the acute moral responsibility that you feel for Brian Nelson influenced the perception that you have reached about the offences to which he has pleaded guilty?
A.: No, I was in the business of running agents and trying to recruit and infiltrate agents into terrorist organisations in order that we could save life and bring down and disrupt these terrorist organisations. I know that the only way to gain inside knowledge that we desperately need is by running and recruiting agents and infiltrating them into the organisations and I believe that entirely and we have got a situation here where we are trying our best to save life in Northern Ireland, where we're trying to disrupt these terrorist organisations and at the same time, when we put someone into that situation, the most dangerous and difficult situation, we don't have a system that allows us to operate fully without the law.
Q.:May I take it that the value that you obviously place on the running of agents and your well developed sense of the danger into which those people are placed, does not lead you to the view that agents can involve themselves in criminal activity?
A.: I think we've already covered this. Agents by their very nature if they're in a terrorist organisation are committing criminal acts just by membership alone and, therefore, it is very, very difficult well nigh impossible avoid for an agent to avoid some sort of criminality. Now, as I have already said Brian Nelson's case perhaps there were errors of judgement and I have said there were mitigating circumstances for these errors of judgement in my opinion. But generally speaking we have to be realistic and realise that an agent in the midst of that sort of murderous type of organisation is bound to get himself involved in some degree of criminality.
Q.:Well now, in characterising those as errors of judgement, on what material did you rely in reaching the view that these offences to which he has pleaded guilty could be put down to errors of judgement on his part? What was the material that you used to reach that judgement?
A.: The material I used were the reports on our own files, the reports that the handlers had received from Brian Nelson, his description of how events had unfolded and what he had done. He was, to my mind, very honest in that. He admitted things that he had done wrong. He didn't try and hide them from us to the best of my knowledge and, therefore, I base my opinions only on the written records, my Lord, that he have and the very extensive records we have recording our meetings with him.
Q.:Well, before you came to the Court today, knowing that you were, presumably knowing that you were going to be asked for your judgement about his involvement, did you refresh your memory from those records?
A.: It would have been difficult for me to come into Court without having done so because after all it's really two years since I had any real sight of these records.
Q.:I see.
A.: I have to say that in the time that I had I was able to do that only on a cursory basis.
Q.:I see.
A.: And what I did was that I looked through the files very quickly and a summary of the files just to remind myself of the general trend in the case.
Q.:So the judgement that you bring to bear on his involvement and the evidence that you give is based on a cursory reminder through the files before you gave evidence, is that right?
A.: Yes, but a reminder is a reminder. I still had a lot of knowledge in my brain and I still remembered the case. There were instances and dates and places and times that I couldn't remember and that was the sort of thing that would concern me. Even now if you ask me for detailed answers I would have to refer to the files to be able to give a truthful and honest answer. But my feeling for the case, my feeling for Brian Nelson was a result of living with his case over a three year period.
Q.:Well, you use a telling word there when you say your feeling for Brian Nelson and your feeling for the case, do you accept the possibility that your feeling for Nelson has clouded your judgement about this?
A.: Perhaps I missed you when I talk about feeling, I mean an overall assessment really. My overall assessment of the case and of his performance. That is based‹you've got to remember that over that period we received lots of reports from Brian Nelson, we discussed his case often, therefore, in my mind I would have formed opinions as I went along. When I talk about feeling for a case I really, I'm really indicating what I believe to be the general run of the case, his general motivation and the way in which the information was passed over.
Q.:Did you know, for instance, in relation to the murder of Terence McDaid, did you know that Nelson had made statements about that to investigating police officers? A.: I was made aware of that by the investigating officers, yes.
Q.:But no doubt you're not privy to the information that Nelson gave to the investigating officers?
A.: No, I'm not, no.
Q.:Do you know that McDaid, Mr McDaid was murdered on the 10th of May 1988?
A.: I couldn't swear that I already knew that, if you tell me that's the date then I'm sure it is.
Q.:Do you know or can you confirm that the last meeting that Nelson had with his handler before the murder of McDaid was the 19th of April 1988?
A.: If that is what is on our record then I'm sure that is the case.
Q.:Do you know that between the last meeting on the 19th of April 1988 and the 10th of May 1988 Nelson conducted surveillance and established visual sightings of Declan McDaid on several occasions?
A.: I'm sure that that would have been reported on out records, and, as I've already indicated, he did and we did indicate that Declan McDaid was under threat.
Q.:No, I'm putting to you that after the 19th of April 1988, the last meeting with the handler before the murder of Mr McDaid on the 10th of May, after that meeting he conducted surveillance and established visual sightings of McDaid.
A.: Yes, but there's a Declan McDaid and a Terence McDaid.
Q.:Quite so, but no information was relayed to the handler about his activities during that time, that's what I'm suggesting to you.
A.: My Lord, I would have to check my own records to be absolutely sure whether he reported this or not. I feel sure that in all cases where he was indulging in intelligence activity he would tell us about it, but without consulting the records I couldn't at this moment say.
Q.:But the question is, how sound is that conviction that you expressed? This is the point that I want to put to you, Colonel. You see, I understand that from your earlier evidence that you had understood that Mr Nelson told his UDA associates that Mr McDaid, that is Declan McDaid, did not live at Newington Street, is that right?
A.: The address at which Terence McDaid was killed he said that that address was not Declan McDaid's address and he was intent on, he was being asked about the address for Declan McDaid was, he was passing on information to us that there was a threat to Declan McDaid and, therefore, he was establishing that his terrorist associates knew where Declan McDaid lived and he reported that to us.
Q.:Would your judgement about this matter change, Colonel, if you discovered, as I suggest to you was in fact the case, that Nelson admitted to police officers that between the time of his last contact with his handlers and the murder of Terence McDaid that not only had he conducted surveillance and established sightings of Declan McDaid, but had reached the view himself that he was living at four Newington Street and that he told Winkie Dodds that he was sure that he was living at Newington.
A.: I have no recollection, my Lord, of that on our files and I would have to consult them to be sure of giving a truthful answer, but I certainly, what I remember from our files is that he did not know of the, he did not know that that attack was going to take place and he did not know that that address was the one that they were interested in.
Q.:But what I suggest to you, what I've just suggested to you is quite contrary to the impression that you had about the matter and that you relayed to the Court earlier, isn't that right?
A.: Well, I can only give my opinions and I can only say what I believe to be the case from my own knowledge. My own knowledge is based on our files, my Lord.
LORD JUSTICE KELLY: Well, I think what counsel is putting to you has been taken from Nelson's own statement to the police.
THE WITNESS: Yes, I understand that, my Lord. LORD JUSTCIE KELLY: And the facts that his putting to you so far were in fact stated by Nelson in his statement to the police: I'm sure that he's staying at Newington Avenue.
THE WITNESS: My Lord, if that is the case then obviously I was not privy to that information and didn't know about it. And I would have to know more about the circumstances in which he carried out this surveillance and know more about what he himself has reported, sometime afterwards of course, to be able to give a judgement on it.
MR B KERR: And it follows, does it now, from that that at the very best you are making a judgement from incomplete evidence, isn't that right?
A.: Well, if you tell me that Brian Nelson has made statements to the police of which I am not aware then you must be correct in saying that, but that doesn't take away from my own conviction which is based on my own knowledge of the case.
Q.:Well, let me turn to your own knowledge of his participation in the attempt to murder Alex Maskey.
A.: Yes.
Q.:Do you accept that at no time before---yes, I'm sorry conspiracy to murder Alex Maskey, do you accept that at no time before the conspiracy was hatched and Nelson's participation in it was complete did he make contact with his handlers?
A.: In the events which led up to the conspiracy from what he told us afterwards and we recorded on files, it is clear that there were possibly occasions when he might have telephoned us. I do believe that he may well have tired to telephone us, that the telephone box was broken, that he didn't wish to do so from his home because his sons were in the vicinity and these are reasons which actually I accept in part. I've said there were errors of judgement and I do believe in this particular case he could well have made more of an effort to contact us beforehand.
Q.:Now, you say that you accept these explanations in part, do you accept that it was an excuse or an acceptable excuse that he didn't telephone you, didn't make contact with his handler from his own home?
A.: I think that it may have been difficult for him to do so, I think probably he could have done and that was an error of judgement.
Q.:Well you see, I have to suggest to you that it goes far beyond an error of judgement and the evidence for that comes from the words of Mr Nelson himself because when he admitted his involvement in this, he told the interviewing officers he couldn't phone his handlers from the house because his sons were knocking about the house which, in reality, was a poor excuse. Those are his words and I have to suggest to you that there is no acceptable excuse for his failure to contact his handlers in relation to what he knew was planned for Mr Maskey?
A.: Well, when you say he knew what was planned there was a lot of comings and goings that night as I remember from his files, nothing ever actually came of it. Now, there were occasions, and I think he has already entered a guilty plea to this offence, he has already entered a guilty plea so he obviously accepts his guilt in this matter and I have to go along with that. He is the man who makes the ple A.: What I'm saying, in mitigation, and remember I have been asked to give evidence in mitigation, I'm saying that he didn't get it right all the time, but he got it right an awful lot of the time.
Q.:You see, it's not simply a question of not getting it right, I have to suggest to you, that his failure to contact his handlers in relation to Maskey and his admitted participation, not only in contacting people whom he knew to be killers, but also in helping---in returning to a number of people and going to see whether Mr Maskey was still at the Gregory Restaurant, that that all admits of only one interpretation and that is that he was a willing participant in the conspiracy to murder Mr Maskey?
A.: I can't comment on whether he was a willing participant or not. If I were to give an opinion on that it would be based on what he told us in the files. I can't say that, only he can say whether he was a willing participant or not. He has pleaded guilty. He entered a guilty plea to this offence. What I'm saying in mitigation is there were a lot of other things he did and there were a lot of other potentially life-saving information that he gave and lives were saved, so how do we balance this off against this particular incident?
Q.:Well, you see, what I'm suggesting to you is that you don't balance it off by seeking to diminish or characterise his errors of judgement, his obvious criminal activity in the offences to which he has pleaded guilty and that's what you have sought to do? A.: No, I haven't sought to diminish his guilt in any of these cases that he has already entered a guilty plea for. I have said it's very understandable situation when you're living day to day when your life is at risk and you're putting your life on the line. It's a very understandable situation where you get drawn into activities that you shouldn't get drawn into and that is the position that we place these people at when we're running those agents. I'm not seeking to diminish his guilt in this things. He has entered a guilty plea he accepts that he was wrong.
Q.:Do you know that in the case of Gillen, the conspiracy to murder Brian Gillen, that he went to his own accord to carry out a reconnaissance of the bar which Gillen frequented?
A.: Again, I can't necessarily recollect that from the files I'm sure I could confirm it if I had. If you're telling me that's what he did and you gave evidence on which to base that, fine, if he did that but he was an intelligence officer for the UDA I've already said that he carried out the surveillance. In fact, in that particular case we were highly dubious about the whole of the information. We were highly dubious that Mr Gillen was ever going to drink in the Sports Bar in Lisburn, he may have done but we were highly dubious of all of that stuff and as I have already said he reported on about twelve occasions before that incident that Mr Gillen was being targeted and warnings had been issued.
Q.:Do you know that he collected a homemade submachine gun for use in the proposed murder?
A.: No, I don't and I'm not sure that anybody does because my recollection of that particular incident was that he got into the car with someone else and there was a bag or some sort of receptacle in the car and he asked what was in the receptacle and he was told there was a machine gun he did not see a machine gun to the best of my knowledge. He was told there was one in the receptacle. He was not then in the position to actually get out of the car.
Q.:And is it not right. Colonel, that of handlers under your command, at least two of the handlers under your command expressed concern to you about the activities of Nelson?
A.: We have a very extensive case files and handlers when they write their notes, write it in a variety of ways. They not only recording the information that was given they're recording all sorts of personal details about the source they're recording all the details about how the meeting took place and where it took place and when it took place and they are recording anything that is of real relevance. And so, we were aware, yes, through the handlers notes when they had worries.
Q.:And an aspect of that worry was, wasn't it, that he was going beyond what was required of him as an agent and participating willingly in these events, isn't that right?
A.: I don't believe that that was, in my reading of the files, that actually it was said like that. I believe that what the handlers were saying was: We must watch him, he's getting himself into a situation here where he's been drawn into terrorist activities, he's allowing himself to become a little too enthusiastic. They were saying this and they were telling him and they were saying to him: Look you have to watch this, you condition not to get yourself drawn in out remember protect your own position as well. We go back to the very difficult situation and the very fine line that I talked about earlier on between him looking after himself and at the same time allaying the suspicions of his associates and at the same time trying to get information from them.
Q.:Well, is it not right that he was reprimanded on occasions because he had gone beyond that line that you have described?
A.: Yes absolutely we would not have been --- we would have been remiss in our duties if we had not done so.
Q.:But notwithstanding the fact that he was reprimanded he continued to cause concern on the part of the handlers, isn't that right?
A.: Because he continued to be in a very difficult situation, he continued to be in the same situation I have referred to time and time again.
MR B KERR: Thank you.
LORD JUSTICE KELLY: Mr Boal, re-examination.
MR BOAL: No thank you, my Lord.
LORD JUSTICE KELLY: Thank you very much.
(THE WITNESS WITHDREW)

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