Burned

by Sam McBride

  It was a measure of the significance of the case for the media as a whole that The Times flew its critic Giles Coren to Belfast to review the restaurant. Coren described the pollo marsala caustically: ‘It is revolting. It is ill-conceived, incompetent, indescribably awful. A dish so cruel I weep not only for the animal that died to make it, but also for the mushrooms.’

  The Court of Appeal quashed the verdict, finding that Coghlin had misdirected the jury – although it was also critical of the arguments advanced by the paper’s lawyers. One individual familiar with the case described it as ‘not his [Coghlin’s] finest hour’. By the time of his appointment, that case had been forgotten by all but a few journalists, lawyers and those involved. The way in which Coghlin would handle the RHI Inquiry would ensure that it would be that, not the libel action, which would define his career.

  In his first public comments at the start of March, Coghlin reinforced his refusal to be cowed by outside influences, saying: ‘When I agreed to take on this complex task I was promised complete independence, and I will insist upon it.’ He set out how the inquiry would be an ‘inquisitorial process, designed to establish the facts … not an adversarial trial’ and without any power to determine criminal or civil liability. But if any of the prospective witnesses thought that meant they would get an easy ride, they were to be disappointed.

  As chairman, Coghlin was ultimately the inquisitor-in-chief. But before witnesses ever arrived before him, they had faced prolonged written questioning by the inquiry’s team of lawyers. For those who were then called to give oral evidence, most of the questioning was conducted by one of a three-strong team of inquiry barristers. That team was headed by David Scoffield QC, one of Belfast’s sharpest legal minds. Scoffield, a former pupil of Attorney General John Larkin, had acted for and against Stormont departments and had seen the devolved administration from both sides.

  With impeccable manners and none of the overt aggression of a hostile courtroom cross-examination, Scoffield forensically probed witnesses. But he could be diplomatically brutal. At one point, summing up the evidence that Jonathan Bell was a minister uninterested in detail, Scoffield referred to ‘what might be described as a limited relationship that Mr Bell had with the paperwork that was placed before him’. Scoffield was supported by Joseph Aiken, who had also acted as junior counsel to Sir Anthony Hart’s public inquiry into historical institutional abuse in Northern Ireland, which had just reported a few months earlier, and Donal Lunny, who could be acerbic in dealing with some of the less forthcoming witnesses.

  There were two other veterans of the Hart inquiry: Andrew Browne, a Stormont civil servant who would reprise his role as secretary to the inquiry; and Patrick Butler, who as solicitor to the inquiry would be at its epicentre. Butler was virtually unseen, choosing to not attend any of the inquiry hearings until its final days. But it was he who was in the background pulling together myriad strings of the investigation, quizzing witnesses through lengthy letters and issuing hundreds of notices under the powerful Section 21 of the Inquiries Act 2005, which allowed him to demand that individuals or organisations hand over every scrap of RHI-related material.

  Coghlin appointed Dame Una O’Brien, a former permanent secretary of Whitehall’s Department of Health, as an inquiry panel member. And he brought in Dr Keith MacLean, a veteran of the UK energy industry, as the inquiry’s technical assessor. As the inquiry wore on, and MacLean acted as a de facto inquiry panel member, there was an attempt to elevate him to that role but it was not possible without a Stormont minister in place. It was a formidable trio. Coghlin understood the law and had decades of experience of cross-examination, O’Brien knew how the world of bureaucracy ought to operate and MacLean was relentlessly observant about mathematical and technical details. During inquiry hearings, Coghlin, O’Brien and MacLean sat looking down on proceedings and frequently interjected to take on the questioning of a witness themselves.

  Coghlin decided to hold his public hearings in Stormont’s Senate Chamber – which prior to the collapse of devolution was used as an Assembly committee room, saving public money. Holding the hearings in the Senate Chamber had two other benefits – the inquiry could avail of the Assembly’s Hansard staff to produce a daily transcript, and it was equipped for live online broadcasts. An old-school judge, Coghlin was initially unsure about live-streaming proceedings online. It was not how things were done in court and it removed an element of the control which a judge has whereby he can rule that something said in court which is prejudicial or inappropriate must not be reported. But central to a public inquiry is the principle that its proceedings should overwhelmingly be public. The most damaging situation would have been the expenditure of a huge sum on an inquiry which did not command public confidence.

  In the end, Coghlin decided that hearings would be streamed online – but with a five-minute delay, giving him some control in an extreme situation. That decision made the inquiry a televised experience – and an unnerving one for many of those giving evidence. A witness would arrive in the west car park at Parliament Buildings and have the option of going in a back door, although some, including Bell, opted to walk in the front door, in view of the cameras. From there, they were escorted to a disused filing room in the basement which had been cleared out for use as the witness room sparsely furnished with a desk, a chair and a choice of tea or coffee. Having generally conferred with their lawyers the previous day, the witness was then brought up to the chamber to be sworn in and questioned. That process could be protracted. Andrew Crawford spent eight days giving evidence.

  One witness described the experience as ‘very lonely’ because after being sworn in a witness was not allowed to discuss their evidence with anyone – even their lawyer. During the lunch break, ‘I couldn’t eat,’ he said, even though food was offered. Sources close to the inquiry indicated at the time the five-minute delay was announced that a particular concern was that Jonathan Bell might start making wild accusations, which would otherwise be defamatory but would be protected by the absolute privilege afforded to witnesses. There had been rumours in January that Bell was on the verge of using Assembly privilege to name at least one senior DUP figure who was alleged to have had an affair with another politician. In the event, Bell did not do so but it caused considerable distress to those involved. In the end, the five-minute delay was never interrupted because Coghlin never felt the need to intervene in that way. Perhaps the closest which it came to being activated was during Bell’s evidence. While still a minister, around the time that RHI was being shut in early 2016, Bell had compiled a dossier of allegations about some of his colleagues. He had submitted its contents to the inquiry.

  Referring to the document, Scoffield told Bell: ‘I don’t want to get into any detail about that.’ But Bell then told the inquiry that it was his spad, Tim Cairns, who had told him the allegations, going on to say that he had told him ‘inappropriately, in garish and lurid detail, the sexual misbehaviour of two DUP ministers’. Scoffield interjected to say: ‘I don’t want to get into that detail’ but Bell continued to dwell on the point and said ‘I want to put on the record’ the source of the lurid claims. Coghlin interrupted him firmly, saying: ‘No, no, no, Mr Bell. I’m sorry, this inquiry is not some form of media record for people making allegations and counter-allegations.’

  The following morning, on what was the second and final day of Bell’s evidence, Coghlin opened proceedings with a caution that the inquiry ‘is not a media platform’ and there was ‘no open invitation’ to witnesses to use the hearings as a platform for ‘publishing or referring to material … for reasons that are irrelevant to the purposes of the inquiry’.

  The following week, Cairns told the inquiry that Bell had prepared the dossier on senior DUP members’ private lives and that Bell claimed it would ‘end several people’s careers’. The former spad said:

  Mr Bell had lost the protection of [Peter] Robinson and he became paranoid about the DUP in general and senior members
of the party in particular. On a daily basis he would recount stories about party members and their indiscretions. It was clear to me that someone was feeding Jonathan gossip … On one occasion Mr Bell was asked to come to Stormont Castle for a meeting with Mrs Foster. Mr Bell refused and spent the evening with Peter Robinson, refusing to attend.

  Cairns said that Bell did not say who was feeding him the stories about DUP members’ private lives. But he insisted that, contrary to Bell’s claim, it was not coming from him.

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  But although the inquiry was relentless in some of the avenues it explored, there were those following proceedings closely who were discreetly critical of the avenues not being explored – and of the haste with which the process began to move from late spring 2018. About a month before the inquiry broke for the summer holidays in 2018, there was a sudden and obvious urgency about proceedings. Where before relatively junior witnesses had been brought back for days on end, now there was a stated desired to move things briskly and deal with any further matters in writing.

  BBC NI’s agriculture and environment correspondent, Conor Macauley, who had been covering RHI since early 2016, sat through almost every day of the inquiry. He too detected a sudden quickening in the inquiry’s pace. ‘The way it came to a close was a bit dissatisfying. After summer 2018, they seemed to rattle through it very quickly. It felt that there was an acceleration which to my mind didn’t serve the public interest as it could have done,’ he said.

  Though Sir Patrick would bristle at the suggestion, there was a concern from one well-placed source that the inquiry was being cleverly managed by others. Senior civil servants and politicians had the power to at least influence some elements of the inquiry, even if they could not control it.

  The decision to hold hearings in Parliament Buildings meant that use of the building was at the discretion of the Assembly authorities. That brought into play civil servants, but also politicians because the financial and management affairs of the Assembly were overseen by the Assembly Commission, a body on which the DUP and Sinn Féin had between them a majority.

  From autumn 2018, there were rumours that the Assembly authorities were putting pressure on the inquiry to vacate the Senate Chamber. At that point, Coghlin announced that the inquiry would be dispensing with its sitting pattern of two weeks of oral hearings followed by a week off in which investigative work continued in the background. From now on, he said, the inquiry would sit every week.

  One of the legal representatives at the inquiry said: ‘From early summer, decisions seemed to have been taken that the inquiry would not be sitting in public session from Halloween, come what may. From early September, it was becoming more and more apparent that a clock was running down, for good or ill.’

  That pace meant that some potentially significant witnesses were not called at all – although they all provided written evidence in response to the inquiry’s questions. Peter Robinson, the architect of the DUP’s system of governing which the inquiry was tearing apart and the former First Minister whose key spad, Timothy Johnston, was alleged to have delayed cost controls, was not called to give oral evidence at all. George Gallagher, the whistleblower whose allegation of empty sheds being heated had arrived with Foster on the very day she said she was first told of the crisis, was not called. Only one Sinn Féin member, Máirtín Ó Muilleoir, was called for half a day – and it initially appeared that he would not be called at all. The situation exemplified the tension between keeping the inquiry to a reasonable time-frame and budget, while getting to the bottom of a saga, which was uniquely complex to investigate because much of the evidence was hidden because it had not been recorded within DETI.

  A spokesman for the inquiry said: ‘No pressure has been exerted from any quarter on the inquiry to foreshorten its hearings, curtail proceedings or complete its work.’ He added: ‘The perception that the inquiry quickened its pace during hearings in 2018 reflects the fact that as more witness statements were received and more witnesses had given their oral evidence the inquiry’s knowledge base grew and it was possible to refine and focus the questions …’ But no one could credibly accuse the inquiry of being a cover-up. From the outset, Coghlin pressed for transparency. Many tens of thousands of pages of witness statements and evidence were published on the inquiry website. It was this openness which was Coghlin’s bulwark against any accusation of protecting the powerful. And the inquiry rigorously interrogated those from all quarters, whether politicians, advisers, civil servants, boiler installers or those with other links to the scheme. It was every bit as thorough with the man who called for the inquiry, Bell, and with the man who set it up, Ó Muilleoir, as it was with those politicians’ target, Foster.

  Without Bell, the inquiry would never have happened. But the picture of Bell which emerged from the inquiry was horrendously unflattering. On the evidence of senior civil servants and others, Cairns was almost acting as the de facto DETI minister in some key areas, while Bell as the de jure minister nodded along but took limited interest in the detail of RHI. When he appeared before the inquiry, Bell did nothing to dispel that view. The man entrusted by Robinson with running a major department spent two days giving evidence which was frequently anecdotal or involved hearsay, and was repeatedly imprecise about key details. He did not refuse to answer any question, but many of his responses wandered far away from what he had been asked, and when he was brought back to the question he was hazy as to what had happened or said he could not remember. But the inquiry had through its own work established that some of Bell’s key allegations had a basis in fact. And in the inquiry’s final weeks of evidence it unearthed something which breathed life into one of his biggest allegations – that the DUP’s most powerful backroom figure, Timothy Johnston, had been behind the attempt to delay cost controls.

  Initially, Bell’s claims about Johnston had appeared weak, with no corroborating evidence. Then Cairns – who disputed much of Bell’s evidence and was still a DUP member – told the inquiry that in summer 2015 Johnston had told him that tariff controls should not be put on the scheme and that he should work with Crawford on the issue. That direction, Cairns said, was why he had attempted to implement Crawford’s suggestions. Johnston consistently denied those claims and said that he had no knowledge of RHI at the point where it was running out of control.

  But late on the night of Wednesday, 5 October 2018 – just hours before Johnston returned to the inquiry for his final day of evidence – there was a major development. Cairns’s lawyer met inquiry barrister Donal Lunny at the law courts in Belfast and handed over new evidence. Among it was an email which Cairns had sent to Johnston, using their dup.org.uk email addresses. The communication significantly undermined Johnston’s story. On 17 August 2015, Cairns had emailed Johnston about another issue. Cairns went on to say: ‘We also need to get a catch up on renewable heat. If we are to deviate from GB policy, it will require a ministerial direction [the nuclear option for a minister].’ The implication of the email seemed clear: someone had prior to this point suggested they should ‘deviate from GB policy’ and Johnston was at least aware of it. The lynchpin of the modern DUP, who until that point had spoken with a clarity and authority which demonstrated why he had been the power behind the throne of successive DUP leaders, struggled to explain the email.

  Under sustained questioning, Lunny put it to him that the email ‘seems to assume a degree of knowledge’ about the issue, with the language being ‘cryptic’ to the uninitiated. Johnston said Cairns may have assumed he had more knowledge than he had. When asked if he read the email, Johnston initially said that he ‘probably skimmed it’. Coghlin put it to him that ‘it’s not a long email … so skimming it means you probably read it?’ Johnston said: ‘Yes, I think if you’re pushing me – I can’t be absolutely 100% certain.’ Coghlin asked why Johnston had not instantly phoned or gone down the corridor to ask ‘what on earth are you telling me about ‘deviation’ for? I haven’t said anything about this
. You must have got the wrong person’. Johnston replied: ‘I certainly … have no sense that I did do that … I have no sense that at the time I paid a lot of attention to it.’ Johnston, by now the DUP’s chief executive, said that he had forgotten about the email. Lunny put it to him there may have been other occasions where RHI was mentioned. Johnston said: ‘I can’t rule that out. I can’t rule that out.’ But he was ‘absolutely clear’ that he did not oppose cost controls, something he said he would remember.

  Several weeks later, Cairns explained why it emerged so late in proceedings. The email, he said, was ‘stored on the server owned and controlled by the DUP and/or its agents’ and as someone no longer employed by the party, he did not have access to its systems. Cairns said that when the inquiry began he was ‘concerned’ at not having access to his DUP email account, and had attempted to access it but was unable to do so. The former spad said that he had read DUP chairman Lord Morrow’s statement to the inquiry which said that DUP staff had searched party accounts, leading him to wrongly assume ‘that my account, which belonged to the party, had been searched’. But then, in October 2018, his solicitor advised him to attempt to access his old email account, and at that point he said he had been reminded that there had been ‘default email passwords’ and by using those he ‘gained access to the account’. It was not clear whether the emails remained on the DUP server or whether Cairns’s phone had retained copies of them locally, which he was now able to access – regardless of whether the party had wiped them.

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  It was not the only occasion in the summer of 2015 that Johnston had been informed about significant RHI developments. Another email – which Johnston gave to the inquiry – showed that Crawford had in August 2015 forwarded to him an email alleging poultry farmers’ ‘abuse’ of RHI. Later that month, in another email which Johnston also handed to the inquiry, Cairns had forwarded to him a message to Crawford that they had ‘no choice’ but to proceed with cutting the subsidy. The inquiry had already separately asked Johnston why it was that he had only provided it with one side of text message conversations with his colleague Richard Bullick, while Bullick had handed over both sides of the exchanges. When asked if he had deleted messages or altered them, Johnston said that he had not. He said that his phone was set to automatically delete text messages after 30 days but that he had paid for software to recover as many messages as possible.