VION 2784 REGINA Zz BRIAN_NELSON Before THE RIGHT HONOURABLE LORD JUSTICE KELLY on Wednesday 22nd January 1992 (Rearraiagnment and Crown opening) ( ST ) Certified a true copy of the origina! filed in the Appeals ond tists Office on theif 12 13 14 1s 16 17 18 19 a 22 23 24 25 26 27 28 29 30 Wednesday 22nd vanuary 1272 R v Brian Nelson pc From 11.10 MR CREANEY: My Lord, bill which is the bill involving Brian Nelson, 'g ask your Lordship to deal with, the retis bill number 200 of 1991. LORD JUSTICE KELLY: Yes. MR CREANEY: I appear in this matter with my learned friend Mr Brian Kerr and Mr Gordon Kerr for the prosecution. MR BOAL: My Lord, I appear with my learned friend Nr Brangham for the accused and might I just say before the charge is put to him that this case was adjourned from time to time last week and at the beginning of this week at the request of the defence. That was because of my own personal disposition and I want to say I'm very grateful to the Court for the indulgence it has shown. ug CREANEY: My Lord, as a preliminary matter my Lord rd) ask that a 35th count be added to the indictment. A copy of that my Lord, has been furnished to my Lordship's clerk and it alleges conspiracy to murder, my Lora, and the particulars being that Brian Nelson, on dates unknown between the 31st day of August 1987 and the 11th day of May 1988 in the County Court Division of Belfast conspired to murder Declan McDaid. LORD JUSTICE KELLY: Any objections? MR BOAL: No objections. iE LORD JUSTICE KELLY: What is the application? MR BOAL: The application now is that the accused should be rearraigned on ali the charges. THE CLERK OF THE COURT: Ace you Brian Nelson? HE DEFENDANT: Yes.~au © @ AL 12 13 14 15 16 Ww 18 19 22 22 23 24 25 26 a7 28 29 30 Wednesday 22nd January 1yy2 R v Brian Nelson THE CLERK: On bill of indictment number 200 of 1991 you stand charged on the 35th Count of conspiracy to murder, contrary to Article 9(1) of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 and Common Law. Do you plead guilty or not guilty? THE DEFENDANT: Not guilty. THE CLERK: Upon application by your Counsel and direction of his Lordship I am to rearraign you on bill of indictment 200 of 1991. You stand charged on the 1st Count with murder, contrary to Common Law. Do you plead guilty or not guilty? THE DEPENDANT: Not guilty. THE CLERK: You are charged on the 2nd Count with collecting information likely to be useful to terrorists, contrary to section 22(1) (b) of the Northern Ireland (Emergency Provisions) Act 1978. Do you plead guilty or not guilty? THE DEFENDANT: Not guilty. THE CLERK: You stand charged on the 3rd Count --~ MR CREANEY: Would you put Count 5 now please? Don't put Counts 3 and 4. THE CLERK: You stand charged on the 5th Count with conspiracy to murder, contrary to Article 9(1) of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 and Common Law. Do you plead guilty or not guilty? THE DEFENDANT: Guilty. MR CREANEY: Don't put Count 6 and 7 please. THE CLERK: You stand charged on the 8th Count with collecting information likely to be useful to10 1 12 13 14 15 16 17 18 19 20 21. 22 23 24 25 26 27 28 29 30 Wednesday 22nd January 1992 R v Brian Nelson terrorists, contrary to section 22(1) (b) of the Northern Ireland (Emergency Provisions) Act 1978. Do you plead guilty or not guilty? THE DEFENDAN' Guilty. CLERK: You stand charged on the 9th Count with collecting information likely to be useful to terrorists, contrary to section 22(1) (b) of the Northern Ireland (Emergency Provisions) Act 1978. Do you plead guilty or not guilty? THE DEFENDANT: Guilty. CLERK: You stand charged on the 10th Count with possession of a document likely to be useful to terrorists, contrary to section 22(1)(c) of the Northern Ireland (Emergency Provisions) Act 1978. Do you plead guilty or not guilty? THE DEFENDANT: Guilty. THE CLERK: You stand charged on the 11th Count with conspiracy to murder, contrary to Article 9(1) of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 and Common Law. Do you plead guilty or not guilty? THE DEFENDANT: Guilty. MR CREANEY: Don't put Counts 12, 13 or 14. THE CLERK: You stand charged on the 15th Count with conspiracy to murder, contrary to Afticle 9(1) of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 and Common Law. Do you plead guilty or not guilty? THE DEFENDANT: Guilty. MR CREANEY: Don't put Counts 16, 17 or 18.lo 11 12 13 14 is 16 aA is 1s 20 21 22 23 24 25 ze = 2! as Wednesday 22nd January 1992 Rv Brian Nelson THE CLERK: You stand charged on the 19th Count with conspiracy to murder, contrary to Article 9(1) of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 and Common Law. Do you plead guilty or not guilty? DEFENDANT: Guilty. MR CREANEY: Don't put Counts 20 or 21. THE CLERK: You stand charged on the 22nd Count with possession of a firearm with intent, contrary to Article 17 of the Firearms (Northern Ireland) Order 1981. Do you plead guilty or not guilty? DEFENDANT: Guilty. MR CREANEY: Don't put Count 23. THE CLERK: You stand charged on the 24th Count with possession of a document likely to be useful to terrorists, contrary to section 22(1)(c) of the Northern Ireland (Bmergency Provisions) Act 1978. Do you plead guilty or not guilty? DEFENDANT: Guilty. TSE CLERK: You stand charged on the 25th Count with possession of a document likely to be useful to terrorists, contrary to section 22(1)(c) of the Northern Ireland (Emergency Provisions) Act 1978. Do you plead guilty or not guilty? DEFENDANT: Guilty. eo THE CLERK: You stand charged on the 26th Count with possession of a document likely to be useful to terrorists, contrary to section 22(1)(c) of the Northern Ireland (Emergency Provisions) Act 1978. Do you plead guilty or not guilty? -A oe ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 THE THE THE THE THE THE THE Wednesday 22nd January 1992 Rv Brian Nelson : Guilty. You stand charged on the 27th Count with DEFENDAN’ CLERK: possession of a document likely to be useful to terrorists, contrary to section 22(1) (c) of ‘the Northern Ireland (Emergency Provisions) Act 1978. Do you plead guilty or not guilty? DEFENDANT: Guilty. CLERK: You stand charged on the 28th Count with possession of a document likely to be useful to terrorists, contrary to section 22(1)(c) of the Northern Ireland (Emergency Provisions) Act 1978. Do you plead guilty or not guilty? DEFENDAN: Guilty. CLERK: You stand charged on the 29th Count with possession of a document likely to be useful to terrorists, contrary to section 22(1)(c) of the Northern Ireland (Emergency Provisions) Act 1978. Do you plead guilty or not guilty? DEFENDANT: Guilty. CLERK: You stand charged on the 30th Count with possession of a document likely to be useful to terrorists, contrary to section 22(1)(c) of the Northern Ireland (Emergency Provisions) Act 1978. Do you plead guilty or not guilty? DEFENDANT: Guilty. 6 CLERK: You stand charged on the 31st Count with possession of a document likely to be useful to terrorists, contrary to section 22(1)(c) of the Northern Ireland (Emergency Provisions) Act 1978. Do you plead guilty or not guilty? Ss10 iL 12 1s 14 15 16 17 18 19 °0 21 22 23 24 25" 26 27 28 29 30 THE DEFENDANT: Guilty. Wednesday 22nd January 1992 Rv Brian Nelson10 AU: 12 13 15 16 17 18 19 20 al 22 23 24 25 26 27 28 29 30 Wednesday, 22nd January 1992 R.v. Brian Nelson (Cont'd) Rearraignment: THE CLERK: You stand charged on the 32nd Count with Possession of a document likely to be useful’ to terrorists, contrary to section 22(1)(c) of the Northern Ireland (Emergency Provisions) Act 1978. Do you plead guilty or not guilty? THE DEFENDANT: Guilty. THE CLERK: You stand charged on the 33rd Count with collecting information likely to be useful to terrorists, contrary to section 22(1) (B) of the Northern Ireland (Emergency Provisions) Act 1978. Do you plead guilty or not guilty? THE DEFENDANT: Guilty. THE CLERK: You stand charged on the 34th Count with possession of a document likely to be useful to terrorists, contrary to section 22(1)(c) of the Northern Ireland (Emergency Provisions) Act 1978. Do you plead guilty or not guilty? Guilty. THE DEFENDAN’ MR CREANEY: Count 35. LORD JUSTICE KELLY: Mr Creaney, he has been arraigned on Count 1, but not on Count 7, I think, Is that intended? NR CREANEY: He was already arraigned on Count 7, my Lord and pleaded not guilty to that. Right. LORD JUSTICE KELL! THE CLERK: You stand charged on the 35th Count with conspiracy to murder, contrary to Article 9(1) of the Criminal Attempts and Conspiracy (Northern Ireiand)10 12 13 14 15 16 17 18 19 79 21 22 23 24 25 26 27 28 29 30 Wednesday, 22nd January 1992 R.v. Brian Nelson Order 1983 and Common Law. Do you plead-guilty or not guilty? THE DEFENDANT: Wot guilty. LORD JUSTICE KELLY: Would you repeat, put the count again. THE CLERK: You stand charged on the 35th Count with conspiracy to murder, contrary to Article 9(1) of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 and Common Law. Do you plead guilty or not guilty? THE DEFENDANT: Guilty. THE CLERK: You may be seated with his Lordship's permission. MR CREANEY: My Lord, purely in relation to the mechanics of the counts on the indictment my Lord, specific instructions have been taken in relation to the counts to which the accused has not pleaded guilty, and i would ask that those counts remain on the books of the court not to be proceeded with without leave of the court. And reasons will be given for that my Lord, in the Crown opening. LORD JUSTICE KELLY: Tell me what those counts are? MR CREANEY: My Lord I'll indicate, if I might, those counts to you. Those are Count 1 my Lord, Count 2, Count 3, Count 4, Count 6, Count 7, Count 12, Count 13, Count 14, Count 16, Count 17, Count 18, Count 20, Count 21, Count 23 and that's the end of them. LORD JUSTICE KELLY: Yes. LORD JUSTICE KELLY: Mr Kerr. MR B KERR: May it please your Lordship, in May 1988 Terence McDaid, then a thirty-one year old marcied man,et aw 10 12 13 14 15 16 17 18 19 21 22 a 24 25 26 27 28 29 30 Wednesday, 22nd January 1992 R.v. Brian Nelson lived with his wife and children at 4 Newington Street in Belfast. For some four weeks before the 10th of May 1988 it had been customary for Mrs McDaid to take her children swimming at Maysfield Leisure Centre on Tuesday evenings. Her husband picked them up after the swim, and it was customary for Terence's parents to visit at 4 Newington Street. ‘The 10th of May was a Tuesday, the 10th of May 1988, and the grandparents arrived at the home at approximately 9:10 pm. Terence NcDaid and his wife had not arrived home, but some five minutes later they arrived and all of the family, children, parents and grandparents entered the home. ‘The children were taken to bed at approximately 9:55 or 10:00 pm, and the grandparents and parents then sat by the fire talking. Some five minutes later this quiet domestic scene was shattered by the bursting open of the living room door, and two men, one at least of whom was armed, forced their way into the living room, and making Terence McDaid their target they discharged seven builets into his head and trunk causing his almost immediate death. At seven minutes past ten an ambulance was summoned and arrived at the scene at One of the ambulance men believed that he 10:12 ‘pm. could elicit a slight radial pulse, but at 10:25 pm life was pronounced extinct. This horrific murder my Lord, was made the more tragic and ghastly by reason of the fact that Terence McDaid was not the intended victim of the gunman. It is now clear that they had intended to murder his brother Declan.10 ul 12 13 14 15 16 a7 18 19 21 22 23 24 25 26 27 28 29 30 Wednesday, 22nd January 1992 R.v. Brian Nelson My Lord on the 22nd of September 1988 Gerard Slane, a twenty five year old married man, returned to his home at 11 Waterville Street, Belfast. He lived there with his wife and three children, and he In the course of of went to bed at approximately 1:30 am. the night he and his wife were disturbed on a number occasions by children coming into the bed and by his wife's belief that someone was tampering with her car. But his wife had gone back to sleep when sometime between 4:15 am and 4:30 am the house was broken open. Armed and masked men entered the home and in a vain attempt to repel them, Gerard Slane threw a step-ladder downstairs at the invaders. But they were not repelled, and they shot him four times in the head causing his instantaneous death. My Lord on the 9th of November 1988 at approximately 6:30 pm, Mary Kelly was preparing an evening meal at her home at 10 Devenish Court in Belfast. Present in the house were her three children, John, Michael and Orla. Michael was aged seventeen. A crack was heard at the front door and Mrs Kelly walked into the hall and there was confronted by a gunman standing in the doorway to the living room. On entering the living room she saw another gunman standing over her son Michael, who was Grouched on a sofa. This gunman held a gun to the head of the seventeen year old boy and pulled at his shoulder to obtain a good look at him, at the same time demanding his name. The boy replied ‘Michael’ repeatedly and just then the voice of a third man was heard shouting, foOY aw ow 10 UE 12 13 14 15 16 aT: 18 19 20 22 23 24 25 26 27 28 29 30 Wednesday, 22nd January 1992 R.v. Brian Nelson “Come on* and thereupon all three left without harming, at least physically, the occupants of the house. It has been established my Lord that this incident was part of a-plan to murder Patrick Monaghan. My Lord on the 14th of November 1988 in the evening, Barbara Morgan was in her home at 10 Devonshire Place, Belfast with her three children. Her husband was not in the house at that time, he'd been absent from about 3:00 pm. At 5:45 pm approximately Mrs Morgan became aware of a gunman standing in the living room. He brandished a gun in his right hand and confronted Mrs Morgan, asking her several times "Where is he?" On each occasion she replied "Who?" And a second man, also armed, was in the hallway of the home. It is clear my Lord, and it has been established, that both were looking for Mrs Morgan's husband, and it is equally clear that their intent was to kill him had he been there, My Lord in each of the incidents which I've just described, the accused Brian Nelson played a vital, indeed an indispensable role. But before describing that role in those incidents, and indeed in other incidents which form the background to the charges which have been preferred against him, it is perhaps appropriate to say something of the background of the accused, My Lord, at the time that these various incidents occurred he was a member of the organisation which describes itself as the Ulster Defence Association. He first joined that organisation in 1972, and he became “SB aoa wf 10 iL 12 13 14 15 16 Ly, 18 19 21 22 23 24 25 26 27 28 29 30 Wednesday, 22nd January 1992 R.v. Brian Nelson what has again been described as an Intelligence Officer, in 1983. He left Northern Ireland in 1985 to work in Germany, and in April or May 1987 was appointed to the position of Senior Intelligence Officer. Now running parallel with those develogments ny Lord, is the circumstance that in 1983 he had, to use his own words, offered his services to military intelligence and indeed it was at the request of the Army that he had returned from Germany to Northern Ireland in 1987. From 1983 onwards, while he was in Northern Ireiand, he was in regular communication with military contacts known as handlers. And in the course of. such contacts he provided information to his handlers of his activities and the activities of others within the UDA. On his appointment as Senior Intelligence Officer in 1987, he gained access to a considerable volume of information which had been obtained by the UDA and which was characterised by that organisation as intelligence. My Lord, that information was built upon and supplemented by Nelson's own activities in his role as Senior Intelligence Officer. And in so far as it is material to this case, this so called intelligence onsisted of information about possible victims of those murderous members of the UDA who sought out for assassination individuals who they regarded as legitimate targets. And my Lord, it is the Crown case that it was in the collection of information about those victims, often I may say carried out with great astuteness and ingenuity, and in its dissemination and Provision to those who he knew to be murderers and who ieu a 10 2 12 3 14 15 16 Ly, 18 19 20 22 23 24 25 26 27 28 29 30 Wednesday, 22nd January 1992 R.v. Brian Nelson he knew would use the information to murder again, that the accused played his pivotal role. And it's against that background therefore, my Lord that I turn to examine each of the main incidents which form the basis of the charge against the accused. My Lord, I've already described in broad outline the circumstances of the murder of Declan McDaid. And as I've said it is now clear that Declan NcDaid and not his brother Terence, was in fact the intended victim. Now the evidence against the accused in reiation to the 35th Count, to which he has pleaded guilty, is that in the latter part of 1987 the accused provided an index card giving details of Declan McDaid to two UDA men known as Hugh and Reid. Now nothing came of that relay of information, but sometime later within the first few months of 1988, Nelson was approached by a man known as Winky Dodds. And Dodds asked Nelson for a target in the West Belfast area. My Lord, Nelson knew that Dodds was a killer, but despite that he gave Dodds the name of Declan McDaid. At Dodds' request he set about obtaining what information he could on Declan McDaid. He conducted surveillance and saw HcDaid on several occasions. He ascertained or discovered that he spent a lot of time at 4 Newington Street. He reported to Dodds that he was sure that Declan McDaid was staying at Newington and he subsequently checked the Electoral Register which confirmed that a McDaid was staying at that address. Finally he gave Dodds an index card with @ photograph of Declan McDaid and within a couple of days to one week, Terence McDaid was shot dead at 4 Ba & oe w on 10 w 12 13 14 15 16 17 18 19 20 zl 22 23 24 25 26 27 28 29 30 Wednesday, 22nd January 1992 R.v. Brian Nelson Newington Street in the manner that I have described. If I may turn now my Lord to outline the evidence in relation to the charges numbered eight to ten on the indictment, which arise out of the murder of Gerard Slane. My Lord on the 7th of September 1988 one William Quee was murdered outside a shop on Oldpark Road, Belfast. Several persons were believed to have witnessed the killing. ‘The. accused Nelson and another UDA, so called officer, Thomas Lyttle Jnr, compiled a section of photographs of suspected members of the organisations known as the Irish National Liberal Army and the Irish Peoples’ Liberal Organisation. The accused collected one of the witness --- one of the She avowed witnesses and showed her the photographs. picked out two photographs, one of whom was of Gerard Slane. On enquiry from another UDA member, Eric McKee, Nelson provided Slane's address and subsequently Provided Slane's file card, as it has been described, to James Spence, another member of the UDA, in the knowledge that Spence would arrange for the killing of Slane. He also checked Slane's address in the He obtained the photograph of Electoral Register. Slane and he gave it to Spence, and he advised Thomas Lyttle Jnr (known as Tosh Lyttle) on how to carry out a recognizance of where Slane lived. My Lord in relation to Count 15 on the indictment, it has been established that sometime in 1988 Eric McKee, to whom I've referred in relation to the Slane murder, asked Nelson to get something for James Spence; again the same James Spence to whom I itoN a © 10 AL 12; 13 14 15 16 17 18 19 21 22 23 24 25 26 a7 28 29 30 Wednesday, 22nd January 1992 R.v. Brian Nelson And the request was made in the context And have referred. that McKee wanted something for Spence to work on. it's clear my Lord that the accused understood this to mean that he should obtain a target for Spence. My Lord it is to be remembered that by this time Nelson knew of Spence not only by reputation but also of his involvement in the Slane incident. He knew therefore that his selection of Patrick Monaghan and his identification of him to Spence effectively targeted Monaghan for murder. Not only did he select Monaghan however, he carried out a recognizance of where he believed Monaghan lived. He noted and described to Spence the type of door on the house. He checked the Electoral Register but was not particularly perturbed at the fact that a Monaghan was not listed as living at that address. He considered that the intelligence which he had obtained on him, that is on Monaghan, was to use his own expression, "Very up to date". He carried out visual sightings of Monaghan and he volunteered this information and a description of the appearance of Monaghan to Spence. He told Spence of seeing Monaghan in the company of another person whom he identified. And from the exchange that he had with Spence he can have been in no doubt that it was the intention of the UDA to murder Monaghan. And we say. my Lord that the accused's participation in the planning for the attack on Monaghan was both willing and purposeful. hy Lord I turn now to deal with the conspiracy to murder James Morgan. my Lord sometime in 1988 in ‘610 aba 12 13 4 15 16 7 1B a 20 al 22 23 2 25 25 2 2b 23 at weanescay, ¢4na vanuary 1992 R.v. Brian Nelson response to a request by Winky Dodds, to whom I've referred, Nelson chose James Morgan as a target. He Provided Dodds with so called intelligence data on Morgan. He also provided a photograph. He again checked the Electoral Register to ensure that Morgan lived at the address given in the intelligence material. Not only that, but he brought the Electoral Register to Dodds and pointed out the entry in relation to Morgan in it. He had made enquiries as to the area in which Morgan's house was to be found and subsequently he bought a map and helped Dodds further to locate the Morgan house. Thereafter he went on foot and on the day that he had went to UDA to reconnoitre the area, positively identified Morgan's house he headquarters and demonstrated to Dodds exactly where the house was to be found. And again my Lord we submit that all. of these factors indicated an active and indeed willing participation in the plan to murder James Morgan. My Lord I turn now to deal with Count 5 on the dictment, which charges that the defendant was guilty of conspiracy to murder Alex Maskey. My Lord although the accused's participation in this offence is similar in some respects to his activities in the series of offences which have already been described, the level of activity and degree of participation of the accused in this incident may be regarded as even more intense than any of the other incidents. On the 17th of July 1988 the accused was told by a Ronald Bickerstaff that Alex Maskey, a Sinn Fein councillor, had been observed 6ane 1o 12 13 14 15 16 ay 18 19 21 22 23 24 25 26 27 28 29 30 Wednesday, 22nd January 1992 R.v. Brian Nelson at The Gregory, a restaurant/bar on the Antrim Road. His reaction was to assure Bickerstaff that he would get onto it right away. He left his home some five minutes after receiving this information and he drove directly to the home of Winky Dodds, of whom we have He and Dodds drove to The Gregory and confirmed Dodds expressed heard. that Maskey's car was parked nearby. himself, my Lord, as being unable to do anything about it because he did not have ready access to weapons. Nelson then drove Dodds home, but he did not rest content there. He drove back to check that Maskey's car was still parked where he'd seen it and he then drove to Highfield Rangers Club. ‘There he met a Matthew Kincaid, and he told Kincaid about Maskey and then drove to another club where he met Jim Spence, who set. about arranging to obtain a weapon in order to carry out an attack on Maskey. He then volunteered to check again whether Maskey’s car was still parked near The Gregory but found it gone and he returned then to Mayo Street to tell Spence. And we submit my Lord that all of this activity could only be construed as demonstrating not only willingness, but indeed determination on the part of Nelson that an attack be made on Maskey. My Lord, a somewhat similar picture, although less impressed in terms of time and less intensive perhaps in the level of activity, emerges in relation to Count 19 on the indictment which relates to the conspiracy to murder Brian Gillen. My Lord it is clear that the accused was well aware that senior members of iF10 ul 12 13 14 15 16 17 18 19 20 22 23 24 25 26 27 28 29 30 weonescay, 24nd January 1992 R.v. Brian Nelson the UDA organisation had a well settled desire to carry out the assassination of Brian Gillen. And in furtherance of this and in his role as senior intelligence officer the accused made contact with a person in Lisburn. He was shown a bar which Gillen was said to frequent. He characterised this information as very sound when he discussed the matter subsequently with James Spence. He offered, and indeed himself took Eric McKee to Lisburn to show him the bar that had been pointed out earlier to him. He indicated to McKee a convenient parking place for a car to have access to a dual carriageway. He carried out a recognizance to locate the bar entrance and he offered to check whether there were security cameras in place. He suggested to McKee that Spence should be given the task of assassinating Gillen. Now quite independantly and indeed without consultation with others, he decided to take a trip to Lisburn to attempt to establish a sighting of Gillen. He produced a photograph of him and gave a description of him to the proposed assassin and he collected a homemade sub-machine gun for use in the proposed murder. And we respectfully say therefore my Lord that thus there was a number of obvious features demonstrating the accused's willing participation in this conspiracy my Lord, although it is essentially incidental to the criminal liability of the accused, it is evident we submit that although Nelson was in contact with his handler over the period that these events took place, and although it is undeniable that he did provide his handler with 13swn Lo 1. 12 13 14 15 16 17. 18 19 21 22 23 24 25 26 27 28 29 30 LORD LORD AR B ORD Wednesday, 22nd January 1992 R.v. Brian Nelson information in relation to them, we submit that he failed to relay important information promptly, and some information not at all. My Lord it is right that I should say that throughout the period of the events that I have been describing, Nelson was in regular contact with his Army handlers. Indeed that contact was regular/frequent between 1987 until his arrest, and it is right that I should say also that in some instances he gave his handlers quite extensive information about his activities and those members of the UDA with whom he was associated and to whom he was passing information. But there was ample evidence that there were occasions when the information passed was neither as detailed nor as comprehensive as it could and should have been. Equally my Lord there were occasions when the information was not passed as Promptly as it ought to have been, particularly in the case of Maskey. Well does that mean that sometimes no JUSTICE KELL information at all was passed? KERR: Not until after the event, my Lord, The events that I have described to your Lordship in relation to the conspiracy to murder Alex Maskey were not passed to the handler until those events had been completed. My Lord in relation to the 24th Count on the indictment -~ : Sorry to interrupt you. JUSTICE KELL KERR: Yes, your Lordship? JUSTICE KELLY: But can you distinguish which cases in which information in part was passed and those in which FOda uw ew 10 11 12 13 14 15 16 17 18 19 a1 22 Fy 24 25 26 oy 28 29 30 B Wednesday, 22nd January 1992 R.v. Brian Nelson no information at all was passed? KERR: Yes, my Lord. I think Maskey was the obvious case where no information was passed until after the event. Yes, in all other cases information was passed of targeting, but we would say particularly my Lord in the case of McDaid, the information which was given was not nearly as comprehensive as it might have been; and I'll return to that very briefly my Lord, later in the opening. LORD JUSTICE KELLY: Yes. WE. 2 t 11:55 doUR ue ae © 10 ll 12 13 4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 MR BRIAN KERR: My Lord, Wednesday 22nd January 1992 Rv Brian Nelson PC from WF at 11,55 (Cont'd) Facts Opened by MR BRIAN KERR (OC): in relation to the 24th Count in the indictment, the circumstances in relation to that are that the defendant supplied Ronald Bickerstaff, to whom I have made reference earlier, with approximately 40 index cards which he himself had compiled and these contained details of various individuals and were supplied to Bickerstaff in response to his request that the accused should provide him with, and I quote, "a number of targets within his (that is Bickerstafé's) area." And, my Lord, it is abundantly clear that the collecting of the material on the index cards was for terrorist purposes and equally that's applied to Bickerstaff particularly in the context of a response to his request for targets which clearly was for terrorist purposes. My Lord, in relation to the 25th Count on the indictment, the accused gave out a number of index cards with information on individuals. Those individuals were described as Provisional IRA or Irish National Liberation Army suspects or Irish People's Liberation Organisation suspects. Some 20 to 30 of these cards was supplied to James Spence and again, my Lord, the Crown would say that the circumstances in which the accused had them in his possession originally, and the purpose for which he supplied them bit off no explanation but the information was of such a nature as to be likely to be useful to terrorists in planning or carrying out acts of violence. and, my 212 13 4 15 16 a7 18 19 20 22 23 24 25 26 27 28 29 30 Wednesday 22nd January 1992 Rv Brian Nelson Lord, in relation to the 26th Count on the indictment, Nelson was given four pages of names and addresses by Eric McKee. They were said to pertain to suspected members of the Provisional IRA in Belfast and Londonderry. He was also given, my Lord, a set of montage photographs. Subsequently about two months after he had received them fron Mckee he was then requested by McKee to provide him with information on persons living in Londonderry. And he photocopied all the montages and he typed up a copy of the persons living in Londonderry among the group that he had been given by McKee and he derived that from the written material that had accompanied the montages and he gave it to Eric McKee for onward transmission to the Londonderry Brigade of the UDA. My Lord, in relation to the Counts 27 and 28 on the indictment, the circumstances are that on the 26th of October 1987 the accused told his handler that he had updated what he described as his 'P card system™. He had photocopied files and supplied 5 copies to different people in the Ulster Defence Association and the avowed reason for that given by Nelson to his handler was firstly to prevent the information being lost in a security forces raid and secondly to increase the targeting capacity of the UDA and we say, my Lord, that the assertion made by Nelson in this context constituted clear evidence of his willing participation in the targeting of others. and the fact that that evidence in support of those charges had been obtained by the relay of information by Nelson to his handler in 2zlo 11 12 13 14 1s 16 17 18 19 21 22 23 24 25 26 27 28 29 30 Wednesday 22nd January 1992 R v Brian Nelson our respectful submission could not disguise or nullify what his intention was in relation to the provision of that information. 4y Lord, in relation to Counts 29 and 30 on the indictment, the circumstances are that on the 16th of August 1989 he had a meeting with his then handler and he informed him, that is Nelson informed the handler, that on the 8th of August 1989 one Jackie Anderson called at his house and when he had been admitted he explained to the accused that he was visiting on behalé of one Samuel Austin and the Purpose of his visit was expressed to be that Austin was in need of a new supply Of photographs of known Republicans, particularly members of the IPLO. Nelson, my Lord, promised to Provide what he could but could only provide Photocopies of his own photographs. He then drove to his store in Forthriver Crescent, retrieved approximately half of his stock of photographs and he then visited Anderson's home from where both he and Anderson drove to a location to photocopy the Photographs and the copies were then handed to anderson with the purpose that they would be delivered to Austin. My Lord, in relation to Counts 31 to 34 of the indictment, again the evidence for this is to be obtained from an account given by the accused to his handler and it may be convenient if I tell your Lordship that the account of the meeting which took Place on the 23rd of March 1988 is to be found at pages 504 and 505 of the book. mR18 19 70 21 22 23 24 25 26 27 28 29 30 Weanesday 22nd January 1992 R v Brian Nelson Your Lordship will see from the statement there in appearing that Nelson had a meeting on the 23rd of March 1988. He stated that at 9.00 am on the 22nd of March Laurence Clifford called at his home and asked if he had a photograph of Sean Stanton. His reply was that he had and would photocopy it for Clifford. Clifford also asked for a selection of photographs and Nelson gave him approximately 20, mainly from north Belfast. And he then asked Clifford if he was targeting Stanton and Clifford said that he was. Your Lordship will also see that at a meeting on the 3lst of march 1988, Nelson stated that during the afternoon of Saturday the 26th of March he saw Laurence Clifford again’ and your Lordship will see the circumstances in which he had an exchange with Clifford, particularly in relation to the targeting of Stanton. My Lord, the accused was arrested on 12th January 1990 and thereafter he was interviewed by members of the team of detectives who staffed what has come to be known as the Stevens Enquiry. My Lord, those interviews were conducted initially over several days. Firstly at Castlereagh Police Office between 12th and 19th of January and thereafter he was interviewed at Crumlin Road Prison from the 25th of January onwards extending over a period of months, but particularly.in the first few months of 1990. And it is right that I should say that as a result of those interviews a very substantial number of written and verbal statements were obtained and it is largely, although not uniquely, upon the material obtained by those adnissions that 214 as 16 ay 18 19 20 22 23 24 25 26 27 28 29 30 LORD MR BRIAN KERR: No, no, my Lord, Wednesday 22nd January 1992 Rv Brian Nelson these charges could be brought. The handlers, that is the Army handlers of Nelson throughout the period of these events, have also been interviewed and provided statements and documents relating to their conduct with Nelson over that period and those have been a supplement to the information obtained by the Stevens Enquiry team. JI think it is correct, my Lord, that I should say in this context that it will be obvious from the papers that a laborious, indeed painstaking inquiry was necessary and not merely competently but I would respectfully submit, skilfully, with great thoroughness and industry-was completed by those charged with the investigation of these offences and in particular, the interview of Nelson. And it is in no small measure due to the obvious commitment of those who were charged with the investigation of the offences that it has been possible to prefer these charges against hin. JUSTICE KELLY: You are talking about the stevens Enquiry only, are you? I think that all who were associated with the provision of information which led to the preferring of these charges and the prosecution of the accused contributed in a material way but I think that it is not unfair to single out the Stevens Enguiry and those detectives associated with it for the singularly valuable work they performed. my Lord, may I say by way of conclusion that as my learned friend Mr Creaney has told your Lordship, it has been concluded on behalf of the Crown that it is appropriate to accept the accused's pleas of guilty to the count to which he 2Cert aw 1 12 13 4 45 16 UV 18 wv 0 21 22 23 24 2 26 21 28 2 3I LORD JUSTICE KELLY: MR BRIAN KERR: Wednesday 22nd January 1992 Rv Brian Nelson has now pleaded guilty and not to proceed on the counts to which he has here today already pleaded not guilty. I think it's important that I should state clearly on behalf of the Crown that in reaching this conclusion, a careful review of all relevant factors has been undertaken, Without seeking to accord any of those factor's particular priority, or attempting an exhaustive or comprehensive list of all of the factors which have influenced the decision they have included the following. Firstly, my Lord, the amount and nature of the material which the accused passed to those who were responsible for the various incidents. secondly Sorry. Just say that again please. Yes, we've taken into account, my Lord, the amount and the nature of the material which he passed to those who were responsible for the various incidents that I have described to your Lordship. Secondly, my Lord, the opportunity available to him to communicate with his handler about the information that he was passing to other UDA members. Thirdly, my Lord, it has been taken into account the degree of involvement or lack of it of the accused in the planning of the actual attack as opposed to the supply of the information which proceeded the plan and its execution. Fourthly, my Lord, we have taken into account the evidence which was available to the Crown which could have been held to be consistent with a purpose or intention on the Part of Nelson that in particular McDaid and Slane should not be murdered. 26AO wn ee 10 12 13 14 15 16 a7 18 19 25 22 23 24 25 26 27 28 29 Wednesday 22nd January 1992 Rv Brian Nelson The decision, my Lord, not to proceed with those charges which are associated with the various conspiracy to murder charges to which the accused has pleaded guilty is because of the recognition by the Crown that, if I might describe them as such, the subsidiary charges are properly subsumed on the charge of conspiracy in each case to which he has pleaded guilty. My Lord, may I say that underpinning all of these considerations has been the fundamental question whether the interests of justice would be satisfied by the course which has now been taken. It will of course be obvious to the Court but in view of the public interest, the legitimate public interest, which has been generated by this case, it is perhaps appropriate my Lord that I should say that the decision whether to prosecute involves a markedly different exercise from that involved in the decision whether to proceed with counts to which a plea of not guilty has been entered. On behalf of the Crown, my Lord I assert that the preferring of charges of murder in each case was justified, was justified on the evidence available to the Crown at the time that the decision to prosecute was taken, But it is important that it be recognised equally “that when a plea of guilty to alternative charges to those contained in the original indictment or a plea of guilty to what might be described as, or depicted as the major charges in the indictment, when such a course is taken by the accused it is not less than the duty of the prosecuting authority to give atwe wn ary 10 12 43 14 is 16 17 18 19 21 22 23 24 25 26 27 28 29 30 Wednesday 22nd January 1992 Rv Brian Nelson careful consideration to the Crown's proper reaction to that. My Lord, in my submission, it must be emphasised that the decision to accept these pleas has been based solely on an evaluation of the factors likely to affect the outcome of the case and the demands of justice. My Lord the decision has been reached after a scrupulous assessment of possible evidential difficulties for the prosecution and a rigorous examination of the requirements of justice. Now may I, my Lord, in final conclusion say a few words briefly about the two charges of murder originally preferred against the accused. In the case of the Slane murder which occurred, my Lord, on the 22nd September of 1988, the accused had told his handler on the 12th September that Slane had been clearly targeted by UDA killers. A witness to the murder of Kee had purported to identify him, his address had been confirmed and the UDA were keen to retaliate for the murder of Kee and all that was passed by the accused to his handler, and of crucial importance, as.I'm sure your Lordship will accept, on the 21st September, the very day before the murder, Nelson again gave a considerable amount of information to his handler about the further planning of that murder. It is clear from the evidence which was available to the prosecution that Nelson was considerably surprised by the timing of the murder. He had left for a holiday just before it occurred and was not in fact in the country at the tine of its 23BU we Ee yoo 10 11 12 13 14 15 16 17 18 19 21 22 23 24 25 26 27 28 29 30 Wednesday 22nd January 1992 Rv Brian Nelson commission, ‘The nexxus, therefore, between the conduct of Nelson and the murder was likely, to put it at its lowest, to be a highly contentious issue on trial. and taking those factors into account, and having regard, my Lord, to the accused's plea of guilty to the other counts on the indictment which relate to this incident, it was concluded that it would be correct to accept the plea and not to proceed with the original charge and that conclusion, my Lord, again I emphasise, was taken on the basis that it properly reflected his criminal responsibility and that the requirements of justice would be satisfied by taking that course. My Lord, in the case of the murder of Terence MeDaid, the distinction is to be drawn because as I've already told your Lordship, the information which the accused gave his handler was not as complete as it could or ought to have been. Nevertheless, it must be accepted that he communicated to his handler on no fewer than five occasions that Declan McDaid had been targeted by the UDA. Those fivé occasions proceeded the murder of Terence McDaid and it is clear, and was clear to the Crown from the evidence available to it, that his reaction after discovering that Terence McDaid had been murdered, that he had no intention whatever that harm should befall Mr Terence McDaid. Again, all of those factors were very carefully considered and it was concluded after, if I may respectfully so say, my ord, a careful, painstaking and scrupulously conducted review that it was proper that the plea to conspiring to murder Declan McDaid should be accepted and in the a10 11 12 13 14 15 16 17 18 19 al 22 23 24 25 26 27 28 29 30 Wednesday 22nd January 1992 Rv Brian Nelson interests of justice should be satisfied by that course. My Lord, the only other matter is in relation to the accused's previous convictions a copy of that is available. (A copy of the previous convictions was handed to the Judge) My Lord, unless there are any matters arising, those are the matters which we would wish to put before the Court at this stage. MR BOAL: My Lord, I propose in due course to address the Court in mitigation but I should say now that in support of many of the points that I would urge the Court to consider in mitigation I would intend to call awitness, That witness is at the present out of the jurisdiction and is not available therefore today and won't be available until the beginning of next week. It would be much more convenient as your Lordship shall appreciate that I should call him on the same day as I would be addressing the Court, Particularly since in a number of respects it could be said that the plea really is effectively being done through the mouth of that witness. My instructing solicitor has ascertained his whereabouts and his ability to be present in this Court any day next week as your Lordship feels. LORD JUSTICE KELLY: He's not within the jurisdiction at the moment? MR BOAL: He is not; he's not even in England. I'm not talking about the Northern Ireland jurisdiction, he's on the continent and he would, as I say, be available from the beginning of next week. I have talked about “bawoe Gen a ee 10 1. a2 13 14 15 16 17 18 19 21 22 23 24 25 26 aT 28 29 30 Wednesday 22nd January 1992 Rv Brian Nelson this to my friends and subject to your Lordship's convenience - the Court's convenience I would suggest any day from Tuesday onwards. LORD JUSTICE KELLY: Have you any particular day in mind? MR BOAL: The convenience of the Court is perfectly acceptable to us. Well I will be sitting every day here, LORD JUSTICE KELL! I anticipate from Monday and I am quite prepared to interrupt a case to hear this plea. The plea should take what, a morning or an afternoon? MR BOAL: Half a day. LORD JUSTICE KELLY: Half a day? adjourn it generally but in expectation we hear the Shall we leave it we plea next week, probably the beginning of the week. MR BOAL: Yes. LORD JUSTICE KELLY: ‘Thank you. Would you put the accused back please. (adjourned sine die)BRIAN HELSO# THE RIGHT HONOURA! ORD JUSTICE KELLY il WESDAY. 297H JANUARY 1992 At COURT Certified a true copy of the original filed in the Appeals and Lists Office on the aday of. 19. Z_OF WITNESS + COLONEL Aid MiTIGATON BY HE BOAL 9cye Ran ew 10 Mednesdav, 29th January 1992 A-v Brian Neison MR BOAL: TI 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 ieave that he should not in fact be required publicly to give his name, that he shouid write his name, hand it to the Court and it should be availabe to the Court and to nobody else. LORD JUSTICE KELLY: Very well. HR BOAL:, Would you come forward, please? Witness * Examination in chief by MR BOAL: Q. Zwiil cali you Colonel, all right? A. Thank you, yes. Q. You are a Colonei in the army? A. I am, yes. Q. 1985, in 1986, ‘87 what was your position? A. Iwas in 1986 or from -86 to ‘89, I was commanding a unit of the British Army 1n Northern Ireiand engaged in agent handling. In that position did you come to be aware of the existence of Brian Nezson 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 WeiSon and decided that we would try and re-recruit him. Where was he at that time? A. He was,3n Germany at tnat Ie. Q. Doing what to your knowledge? A. He was, he had ier. empioyment I beiieve as a roof t Had you been aware of his involvement in UDA activities before he went to Germany? A. Yes. Yhen his nane was first disclosed to me ooviously we .ooked at the past rises 1Fw w so I was, therefore, made aware of his previous activities. 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. To your knowledge did he have employment in Germany at that time? A, Yes, he did. Was that lucrative employment? A. I beiieve he was weil “paid, yes. And was he settled there with his wife and family? A. He was indeed. In order to encourage his return what did you do? A. We discussed the matter with him and expiained 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 and 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. a From what you say your arrangements, financial arrangements would involve two matters, his transfer from Germany to Northern Zreiand? A. That is correct. And the consequential expense that would be for him, and secondly his financial maintenance from there on?22 a3 24 25 26 aT 28 30 A. That is correct, yes. What arrangements were made for his financial arrangements from then on? 4, From then on he was paid a retainer or a salary if you want to cali 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. A. He was paid approximately £200 How much was he paid? a week, Was it to 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. x don't believe he gained materially at all from his time cooperating and working with us. 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. SB TO AS 11.10We Oth Janua Riv, Brian Nelson 2 3. AS FROM SB 11.10 4 WITNESS ' CO! : 5 (Cont? inatio. Chief MR BOAL: 6 Q. Now, you have already said that, in fact, he was not paid by 7 results, was he ever paid a retainer more than two hundred 8 pounds a week? A. From my memory of our files in which 9 we record all these matters I don't believe so. 10 Q. Now, the general purpose of re-recruiting him you say has 1 been explained to the Court when he was brought back from 12 Germany in the manner you described. Did he, in fact, join 13 the UDA again? A. Yes, he did, yes, but we had a 4 difficulty here, our aim was to gain inside knowledge and at 15 the same time we did not want him to get involved in the 16 murder gangs associated with the UDA or the other Loyalist 7 paramilitaries therefore we had to decide where he could 18 best be infiltrated in order that we couid gain information 19 about possible targets for asassination and pass them on to “the RUC in the shape of warning reports without getting hia | 1 involved in the murder gangs themselves and so for 22 “that reason - 23 Q. What was the best niche as you saw for him? A. The 24 best niche at the time we could see was to infiltrate him 25 into the intelligence structure, 26 Q. Of course I'm sure it was to your knowledge that he had been | 27 involved in the intelligence structure before he went away 28 in 1985? A. Yes, it was and therefore he had some | 29 credibility with his associates. 309. ~SoYes, 4