- - - - - - - - - - PUBLIC INQUIRY INTO THE DEATH OF ROBERT HAMILL - - - - - - - - - - Held at: Interpoint 20-24 York Street Belfast on Wednesday, 16th December 2009 commencing at 10.00 am Day 76 1 Wednesday, 16th December 2009 2 (10.00 am) 3 Closing submissions by MR ADAIR (cont.) 4 THE CHAIRMAN: Yes, Mr Adair. 5 MR ADAIR: Thank you, sir. 6 Panel, I dealt with the first stage that Mr McGrory 7 says that there was a lacking of the best investigative 8 strategy. 9 The second stage relates to the interview of 10 Atkinson on 9th September, which we all know about. 11 Comment, of course, has been made in relation to the 12 delay between the obtaining of the telephone records in 13 May and this first interview on 9th September. 14 I think it is worth, in our submission, remembering 15 that Detective Chief Superintendent McBurney was not 16 just dealing with one investigation; in other words, the 17 investigation into the murder of Robert Hamill, and the 18 tip-off allegation and the neglect allegation. 19 As you will have seen set out in some detail in the 20 submissions by the PSNI, he was also involved, during 21 this intervening period, in five other major murder 22 investigations, including, of course, one that was 23 touched upon yesterday, the murder of two RUC officers 24 in Lurgan in July. 25 So the reason I mention that, sir, is that it is 1 1 very easy, human nature being as it is, to simply focus 2 on this Inquiry, because that's what we are dealing with 3 day and daily, and to forget the reality of life back in 4 1997 for Mr McBurney, that he had a multitude of other 5 very serious crimes that he was investigating 6 THE CHAIRMAN: Can you remind us of what McBurney said in 7 his interview about pressure of other work? 8 MR ADAIR: I will shortly whenever my junior ascertains it, 9 sir. I will come back to that in due course. 10 Undoubtedly, he was involved in a substantial 11 number of other major investigations and, as I say, at 12 the risk of repeating myself, it is very easy to forget 13 that when we are within the closed confines of this 14 Inquiry and to wonder, "Why didn't he do this and why 15 didn't he do that?" 16 In relation to the strategy that was employed in 17 that interview criticism has been made of the fact that 18 essentially he asked Atkinson to produce his telephone 19 records, rather than put the records that he already had 20 received from the telephone company. 21 I have dealt with that to some extent, sir, in 22 relation to the evidence we have heard about the 23 telephone companies and their reluctance to let that 24 information be used other than for intelligence 25 purposes. I think I am right in saying that has been 2 1 touched upon by a number of witnesses during the course 2 of this Inquiry. 3 I think it is also right to say that he could have, 4 under the terms of the legislation, obtained that 5 evidence in hard form, but it seems to have been the 6 practice that what was done was "Use the information to 7 pursue your enquiries, but don't put the intelligence to 8 the suspect". That's what the protocol said. "This is 9 confidential information. Don't put this to a suspect." 10 What was being done -- 11 THE CHAIRMAN: Whose protocol is this? 12 MR ADAIR: This is the PSNI protocol in relation to the use 13 of this intelligence information. Of course, in those 14 days, sir, there was very good reason for that, because 15 of the well-founded fears that service providers had for 16 their witnesses coming to court or of paramilitaries 17 becoming aware that they were giving the police this 18 information. 19 So what was done by Mr McBurney was an effort to 20 obtain evidence that he could produce in court, because 21 once Atkinson, as he was asked to, produced his 22 telephone records, that was capable of being made 23 an exhibit and produced in evidence in court. 24 So, in our submission, sir, this suggestion that, at 25 one stage, it was suggested this, in fact, it was 3 1 a tip-off by Mr McBurney to Atkinson does not have any 2 foundation whatever. This was a strategy employed by 3 Mr McBurney in accordance with the protocol and practice 4 that prevailed in 1997 5 THE CHAIRMAN: Again, Mr Adair, more work perhaps for 6 Mr O'Hare. It would be helpful if we can be told at 7 some stage what McBurney said about this in his 8 interview. 9 MR ADAIR: He said -- my recollection is he said he wanted 10 hard evidence in the form -- again, I hope I am not 11 wrongful in that, but my recollection is that that's 12 what he said, but I will have that checked as well, sir. 13 THE CHAIRMAN: Is it said there was a danger to providers' 14 own personnel, even if disclosure was made under a court 15 order? 16 MR ADAIR: Well, there was, sir. I mean, the reality is 17 there was. I don't want to start giving evidence, but 18 anybody who practised in this jurisdiction in those 19 years would have been well aware, not just of the 20 reluctance of witnesses such as Catholics and 21 Protestants in Portadown to come forward to give 22 evidence, but of anybody to come forward to be seen to 23 be giving evidence which potentially would convict 24 a paramilitary of a crime. 25 THE CHAIRMAN: Was any distinction being made between that 4 1 which was done voluntarily and that which was being done 2 under an order of the court? 3 MR ADAIR: I am not sure whether the paramilitaries were 4 subtle enough to recognise the difference, to be 5 absolutely frank, sir. I think their venom against 6 people who gave evidence was not simply restricted -- or 7 didn't temper by the fact that they were aware that they 8 were under a court order to give it, to be absolutely 9 honest with you, sir. I mean, I think they just caused 10 such fear in any witness who was giving evidence, and 11 the fact that they are under a court order, that 12 subtlety, I don't think, sir, was really something that 13 was present in their minds. 14 REV. BARONESS KATHLEEN RICHARDSON: I thought we were told 15 at one point that there was a way of getting round it by 16 inviting people from over the water to give the evidence 17 for them. Am I correct? 18 MR ADAIR: Yes. I think very often people were brought in 19 from across the water to give that evidence. Again, if 20 I might say so, extremely reluctantly did they come. 21 They came. There is absolutely no doubt about that. 22 They came, but it was extremely reluctantly. 23 What it boils down to is, if it could be done any 24 other way, such as the strategy engaged by McBurney, 25 then that was much preferable. I am not saying, sir, 5 1 that it was impossible or that it didn't happen, but if 2 there was a better, safer, more preferable way of doing 3 it, it was exactly the way that Mr McBurney did it 4 THE CHAIRMAN: Can you help me about the practice of the 5 courts in Ireland? In England, an order, if there are 6 proper grounds for it, could be made and the case would 7 be listed before a circuit judge's list at the beginning 8 of the day; in other words, within 24 hours of the 9 decision we will apply, the order could be had. Was 10 there that same urgency or speed in this country -- in 11 the province, rather? 12 MR ADAIR: I don't think so. I have to say, in those days, 13 sir, I was not actually engaged in much prosecution work 14 myself, to be frank about it. So I am not actually 15 aware of the exact mechanisms. 16 THE CHAIRMAN: It may be Mr Wolfe will be able to help us 17 about that. 18 MR ADAIR: It may be. It certainly was obtainable. If one 19 decided to go down the route of getting a court order, 20 an application could be made, and whether it was within 21 a day or two, or whether it was within a week or two or 22 a month -- 23 THE CHAIRMAN: In England, it was a priority. You said you 24 wanted to make the application the previous night and 25 you made it the next day, or, if it was in the morning 6 1 that you made the decision, you would still get your 2 order within the day if you made the grounds out for it. 3 MR ADAIR: Well, sir, it may well be that the same applied 4 here. I frankly can't answer the question. 5 THE CHAIRMAN: As I said, Mr Wolfe may be able to help us 6 about that. 7 REV. BARONESS KATHLEEN RICHARDSON: The original records did 8 not take long to find, did they, once P39 asked for 9 them? 10 MR ADAIR: No. What we say, sir, is that that was one route 11 that could have been followed. Whether it would have 12 been rapidly obtained or whether it would have taken 13 a week, a day or a month, I can't say, but it was one 14 route, but our submission is that the preferable route, 15 and the practice was, in accordance with the protocol, 16 to go down the route that Mr McBurney, in fact, went 17 down. 18 Now, another criticism ancillary to this is arising 19 out of that, that, once again, the records were not put 20 to Atkinson during the course of the September 21 interview. I simply repeat what I said about the 22 potential of interviewing him back in May, that the 23 probability, the very strong probability, is that 24 Atkinson would simply have said, "Well, I know nothing 25 about that. I will make enquiries and I will come back 7 1 and tell you." 2 Again, we say, to suggest that Mr Atkinson would 3 have simply put his hands up and said, "Oh, I see you 4 have a record of a call that was made from my house to 5 the Hanvey house. I hear that you have a witness who 6 alleges that that was a tip-off", is anyone seriously 7 suggesting Atkinson would have put up his hand and said, 8 "That was me. I tipped Hanvey off about a murder, about 9 destroying and getting rid of his clothes in a murder, 10 and I want to tell you all about it"? 11 Sir, in our submission that is fanciful. One only 12 has to look and remember Mr Atkinson giving his evidence 13 to this Inquiry in the face of what is now overwhelming 14 evidence that he was involved in this conspiracy, the 15 overwhelming evidence, we all know, being Andrea McKee's 16 plea of guilty, Michael McKee spending six months in 17 prison and so on, and all the other evidence that has 18 been collected, but he still sat brazenly in front of 19 this Inquiry and said, "That just didn't happen". 20 Now, are we to pre-suppose, back then, in the face 21 of the limited evidence the police had, he would simply 22 have put his hands up? We say that's a fanciful 23 proposition and simply would not have happened. 24 THE CHAIRMAN: What do you say about the question of 25 whether -- a chance, when Atkinson was asked about the 8 1 telephone call, the effect of that would be to destroy 2 Tracey Clarke's cover? 3 MR ADAIR: We submit the probability is that was very 4 much to the forefront of Mr McBurney's mind, both in May 5 and in September. Now, he didn't say that during the 6 course -- the reason I say "the probability is", is 7 because, undoubtedly, Mr McBurney did not make that 8 proposition during the course of his interviews at any 9 time. 10 It is hard to imagine, knowing as we do that he was 11 one of the best senior investigating detectives in this 12 province, that it was not something, whether consciously 13 or unconsciously, that was not somewhere in his mind, 14 that by interviewing Mr Atkinson, whether in May or in 15 September, he was potentially going to expose the 16 critical witness in the murder case. I think that's 17 a very real -- I think it is a probability. I can put 18 it no further than that, sir, because he didn't say it 19 himself. 20 It may be so obvious that it is not something he 21 thought necessary to say. I just don't know. It was 22 always going to be difficult keeping Tracey Clarke on 23 board. That seems to be the effect of the evidence and 24 it seems to accord with common sense, knowing what we do 25 about Portadown back then. So it was always going to be 9 1 a delicate balancing act to get her right through the 2 procedure and into a witness box in court. Anything 3 that might jeopardise that, we submit would be something 4 that Mr McBurney would be keen not to do 5 THE CHAIRMAN: Is it right to say that to keep her as 6 a witness and safeguard her for that purpose was 7 impossible without Tracey Clarke's cooperation? 8 MR ADAIR: To keep Tracey Clarke? 9 THE CHAIRMAN: As a witness in safety, was impossible 10 without her cooperation? 11 MR ADAIR: Absolutely, sir. We know the efforts that were 12 made by Mr McBurney and P39 to relocate her, to get her 13 alternative employment, to get her out of Portadown away 14 from potential influences, but, of course, perhaps 15 understandably, being a 17-year-old girl, she didn't 16 want to move away, obviously, from Portadown, for 17 whatever reason. 18 This was not an unusual scenario for police to have 19 in relation to the prosecution of either paramilitaries 20 or people with connections with paramilitaries 21 throughout the period euphemistically called the 22 troubles in this province. Very often, there were 23 witness statements made by various people which were 24 either critical to the prosecution or important to the 25 prosecution. The police were walking on tenterhooks for 10 1 the months between charging and the court appearance as 2 to whether those witnesses would ultimately give 3 evidence. 4 Sometimes they did, but very often, as we know, they 5 didn't. I think we had another example yesterday when 6 Sir Ronnie Flanagan was being questioned about the 7 Colin Duffy situation, where apparently -- I don't know 8 anything about the case -- there had been a witness in 9 that case as well who ultimately didn't give evidence. 10 There is nothing unusual about this. The hope was 11 that they would give evidence, but the realisation was 12 that that may not come to fruition. That was just 13 a fact of life. 14 The point about that, sir, is that anything that 15 could be done to protect, in the sense of protect them 16 both physically and potentially protect their identity, 17 would be done, because already there was a tightrope. 18 Falling off that tightrope was all too easy, 19 unfortunately, in so many cases. 20 Now, the third stage, sir, that Mr McGrory referred 21 to was the making of the false alibi statement by 22 Andrea McKee. 23 It was suggested by Mr McGrory that the mistake here 24 was that she should have been arrested immediately after 25 making the statement and she would have broken. Again, 11 1 it is suggested that the best investigative strategy 2 would have been to arrest her and break her, I think 3 were the words that were used. 4 Again, sir, we respectfully submit, if one looks at 5 the reality of the situation as to what probably would 6 have happened if she had been confronted, take the first 7 scenario. If, on going to take the statement, 8 Detective Inspector Irwin, before she made the 9 statement, had confronted her with the fact that she had 10 come down with Tracey Clarke, so, therefore, he knew 11 what she was about to put in the statement was untrue 12 and said to her, "Now, be very careful", and, say, 13 cautioned her, well, what is the probability as to what 14 she would have done? 15 She probably, according to her evidence, would not 16 have made the statement. It is possible she might have 17 gone on to make it, but it is probable, if she had been 18 confronted in this way, that she would not have made the 19 statement. 20 What would the consequence of that have been? Well, 21 the consequence would be, as far as attempting to get 22 Mr Atkinson, absolutely nothing. That would have got 23 you absolutely nowhere unless she had gone a stage 24 further and said, "Not only am I not going to make this 25 false alibi statement, but I want to now give evidence 12 1 and make a witness statement concerning what I know 2 about a conspiracy between Robert Atkinson and my 3 husband, Michael McKee". 4 I rhetorically ask: what was the likelihood of that 5 happening? Our respectful submission is that it is just 6 about zero. At that stage, she was still living with 7 her husband under the influence of her husband, as we 8 know, living in Portadown. Is anyone, we rhetorically 9 ask, seriously suggesting that she was there and then 10 going to say, "I now want to make a witness statement 11 and potentially put my husband and others in prison"? 12 We say again that that was fanciful. 13 She gave evidence about this on 11th February of 14 2009. If you could call this up, please, first of all, 15 at page 43. At line 21 -- again, there seems to be 16 a mix-up in my -- this is a very short quote which 17 I will just tell you, sir, and then I will move on to 18 another passage. She was asked: 19 "Question: In April 1997 were you living in 20 Portadown? 21 "Answer: I was living in Craigavon. 22 "Question: Who with? 23 "Answer. With my husband, Michael. 24 "Question: What was your relationship with him at 25 the time? How good was it? 13 1 "Answer: It was okay." 2 I see actually at the top of the page, it is at 3 page 44 on the screen in front of you, sir, the very top 4 of the screen 5 THE CHAIRMAN: Yes. 6 MR ADAIR: Then if you go to page 67, line 22: 7 "Question: Doing the best you can with what might 8 be a hypothetical question, can you tell us how much it 9 would have taken for to you change your course?" 10 This is relating to the period when Irwin is taking 11 the statement: 12 "Answer: At that moment in time, I knew right from 13 wrong, and I'm responsible for my own actions, and, 14 foolishly, I shouldn't have gone in there and made that 15 statement. He was there to do his job and take 16 a statement, as he had been asked to. As I say, I can't 17 blame anybody but myself. I was asked to do that by 18 Robbie. I wasn't made to, and he took a statement as he 19 was asked to, from me, which was untruthful. 20 "Question: Were you dead set on doing this? 21 "Answer: no. 22 "Question: So if he had said, 'What are you doing 23 Andrea?' 24 "Answer: I would have got up and gone." 25 That's why I say the probability is that if she had 14 1 been confronted with it there and then, according to her 2 evidence, and I see no reason to doubt it, the 3 probability is she wouldn't have made the false 4 statement: 5 "Question: Would you have been prepared, can you 6 tell us, to uncover the cover-up, or would you have just 7 gone out of the room? 8 "Answer: I can't answer that." 9 She says she can't answer that, but in our 10 submission the probability is, having regard to the fact 11 she is still living with her husband, that she wouldn't. 12 If you go to page 94, which I assume then is 95 -- 13 THE CHAIRMAN: Just pausing there, she could not have 14 exposed what had happened without incriminating her 15 husband, could she? 16 MR ADAIR: No, no. 17 At page 95, starting at line 25, she is asked: 18 "And the statement was in essence in support, first 19 of all, of what your husband said and to give an alibi 20 in a sense to Atkinson? 21 "Answer: That's right, yes. 22 "Question: While you were with your husband, can we 23 assume you wouldn't have changed that; you wouldn't have 24 phoned up the police and said, 'By the way, what I said 25 is untrue and my husband has also given a false 15 1 statement'; it is only when you had separated and 2 started a new life that you thought better of it? 3 "Answer: Yes." 4 So that's why we say that the probability -- that is 5 probably putting it modestly -- is that she would not 6 have implicated her husband and Atkinson in any 7 conspiracy at that stage. 8 So, therefore, at this stage, to have confronted her 9 would have got absolutely nowhere in the pursuit of 10 Mr Atkinson, and, of course, Mr McBurney, being the 11 astute detective that he was, would have realised that 12 immediately. 13 THE CHAIRMAN: Just before you move on from that point, we 14 are asked to criticise McBurney's decisions about the 15 investigation of the tipping-off allegation. What do 16 you say is the proper test of that? Is it that we think 17 there was another way he could have tackled it which 18 would have been better, or is it to say, well, this was 19 one of a number of courses and it was a reasonable 20 course to have taken? 21 MR ADAIR: The latter. 22 THE CHAIRMAN: The latter. Thank you. 23 MR ADAIR: Now, it is at this stage, sir, that the 24 allegation is made that Mr McBurney engages in what must 25 be the most Machiavellian strategy, if what Mr McGrory 16 1 is suggesting is right, because what is suggested now at 2 this stage is that, when Mr McBurney discusses with 3 Mr Irwin his essential delight at this development that 4 Andrea McKee has made this false statement, and 5 discusses with Irwin that this is the potential at some 6 stage for the breakthrough into getting Mr Atkinson, 7 Mr McGrory is forced to say, "Well, what is going on 8 here is that Mr McBurney, in fact, is not intent in 9 pursuing Atkinson, but, in fact, is engaging in the 10 Machiavellian approach of pretending to 11 Detective Inspector Irwin that he is intent on pursuing 12 Atkinson and that any conversation he has with Irwin 13 expressing that view is simply a subterfuge." 14 I mean, at this stage, sir, even on a rainy day 15 I put the novel down, because it is not suggested that 16 Mr Irwin is lying when he recounts the conversations 17 that he had with Mr McBurney about his approach and his 18 attitude and his desire to get Atkinson, what has to be 19 suggested now, at this stage, is that this was McBurney 20 really fooling Detective Inspector Irwin about his 21 intentions and about his attitude to this. 22 We can see what Mr Irwin said about this on 23 9th September at page 98 -- it is at your page 99, 24 line 3. This is Mr Irwin being asked about his 25 conversation with Detective Chief 17 1 Superintendent McBurney: 2 "Question: -- whether she should be confronted with 3 this or whether you should simply take a witness 4 statement from her? 5 "Answer: That's correct, sir. 6 "Question: So it was obviously something that was 7 tasking the mind of Mr McBurney at that stage? 8 "Answer: It certainly was, sir, yes. 9 "Question: He directed that you should not confront 10 her, but you should, in fact, just take the witness 11 statement? 12 "Answer: That's correct. 13 "The Chairman: What, draw her attention to the 14 declaration? 15 "Mr Adair: Yes. 16 "The Chairman: If she backed out at that, leave it; 17 if she didn't, take a statement? 18 "Mr Adair: That's right, sir." 19 I think that should probably read Mr Irwin answering 20 those questions, rather than me: 21 "Question: Now, I don't think you have said in so 22 many words, but is this proposition a reasonable one as 23 to what Mr McBurney was doing? Did he see this, in 24 other words, Andrea McKee making a false alibi 25 statement, as the potential way to break into the 18 1 conspiracy? 2 "Answer: Sir, when Michael McKee was interviewed in 3 Lurgan police station and I had a brief word with 4 Mr McBurney after that, he was delighted that the 5 Atkinsons had introduced other people into the 6 conspiracy, because he saw here we have a one-minute 7 phone call between one house and another house, and what 8 he had to prove -- here we were, two families, both of 9 interest, not to tell the truth. What he had to prove 10 was not only who had made the phone call, but what was 11 actually said on that phone call, and for any 12 investigator that is a massive task in relation to 13 a phone call. 14 "You can prove a phone contact, but who made it and 15 what was said on it -- and he saw the introduction of 16 people outside those family units as a real bonus to the 17 investigation. He believed at that stage this was 18 a bonus and an opportunity. 19 "Question: Now, we all know, as lawyers, the 20 dreaded alibi witnesses -- 21 "Answer: Yes. 22 "Question: -- and what they are usually like. Did 23 he see, just to put it in a nutshell, the making of 24 a witness statement by Andrea McKee, this false alibi 25 statement, as a potential breakthrough eventually -- 19 1 "Answer: He did indeed, sir. 2 "Question: -- into Atkinson? 3 "Answer: That's correct, sir. 4 "Question: Have you any doubt whatsoever that his 5 strategy at that stage was to get this false alibi 6 statement, and, when the time was right, break the alibi 7 statement? 8 "Answer: I have no doubt whatsoever, sir. What 9 I would say is, after I took the witness statement off 10 Andrea McKee and we spoke about it, he certainly gave me 11 his view, at that stage, that now the timing wasn't 12 right to move on, because what you would simply get was 13 Andrea McKee and a statement after caution from her 14 potentially, which then could not be used against 15 Robbie Atkinson. 16 "Question: In relation to the McKees, Michael McKee 17 and Andrea McKee -- 18 "Answer: Yes. 19 "Question: -- was there any discussion between you 20 and Mr McBurney as to whether he thought he might be 21 able to break Andrea McKee eventually? 22 "Answer: Because of probably her relationship, that 23 she'd come to the police at the start, and underneath it 24 all Mr McBurney was of the view that she had been used 25 and forced into this situation and that she was the weak 20 1 link in the whole conspiracy. 2 "Question: What about your knowledge of whether the 3 marriage was a solid one or otherwise between Michael 4 and Andrea? 5 "Answer: Yes, Mr McBurney had certain views on 6 this as well. He believed that it wouldn't last, so he 7 did, sir. 8 "Question: Again, I think I have used this 9 expression before. Was his strategy at that stage then 10 to get this statement taken and wait in the long grass?" 11 I think the answer is: 12 "Answer: That's right, sir." 13 I am missing that page in mine. 14 So that's the nature of the discussion both pre and 15 after the taking of the statement by Mr Irwin and 16 Mr McBurney. It is not suggested that conversation did 17 not take place, but what is suggested, as I say, is that 18 this was some kind of subterfuge, Machiavellian 19 subterfuge, on the part of Mr McBurney, to fool Mr Irwin 20 as to his real intentions. 21 So what we respectfully submit, sir, is that, by 22 adopting the courses that had been suggested, either in 23 May or at any stage up to the point we are dealing with 24 in October when Andrea McKee made her statement, would 25 have got absolutely nowhere in attempting to prosecute 21 1 Mr Atkinson. 2 Now, the next stage that is criticised is the stage 3 when what we are calling the neglect file is lodged with 4 the DPP. The allegation is that, because of the way it 5 is worded, in particular, because of the fact that 6 specific attention is not drawn to the DPP's attention 7 concerning Andrea McKee's previous involvement with 8 Tracey Clarke, that there is something sinister about 9 that and that would tend to confirm that Mr McBurney did 10 not have this long-term strategy. 11 I deal briefly with this, sir. When considering 12 this aspect of the case, it is important, in our 13 submission, to look not only at the neglect file, but at 14 the murder file, which, of course, had gone in 15 previously, and to see what Mr McBurney and Mr Irwin had 16 indicated to the DPP concerning Tracey Clarke. 17 Now, the murder file, as we know, was submitted in 18 August of 1997. If I could have page [06134], please. 19 If you would highlight the bottom paragraph, please. 20 Now you will recall, sir, that when the murder file was 21 sent into the DPP, the statements of Tracey Clarke and 22 Jameson were enclosed separately in a separate file 23 because of the sensitivity. This is what is said: 24 "I am in no doubt that the evidence outlined by 25 Witness A", which is, of course, Tracey Clarke, "and 22 1 Witness B is truthful and correct. In addition, 2 Colin Prunty implicates Wayne Lunt." 3 Now, if I stop there for a second, and if we go then 4 to page [06135], the previous page, sir -- as we know, 5 the murder file was prepared by Detective 6 Inspector Irwin. It is he that is making the assertion 7 that the evidence of Tracey Clarke is truthful. 8 Now, before I come on to this document, it is worth 9 remembering he is not prevaricating and saying, "The 10 part of her statement concerning who was involved in the 11 attack on Robert Hamill is truthful, but the part about 12 the tip-off is a bit -- we are a bit less sure of", what 13 they are saying is, "This is a truthful statement". 14 This is then what Detective Chief 15 Superintendent McBurney says: 16 "Detective Inspector Irwin's comprehensive report 17 defines the circumstances and the difficulties of this 18 investigation. 19 "The non-cooperation of some witnesses and the 20 Hamill family's solicitor has resulted in all possible 21 evidence not being made available. 22 "The evidence of Witnesses A and B is crucial, 23 however. I refer you to the separate confidential 24 report submitted. I strongly support the recommendation 25 that an early consultation be held with these 23 1 witnesses." 2 So Detective Inspector Irwin's comments are being 3 adopted and approved by Detective Chief 4 Superintendent McBurney. 5 Now, at that stage, what is clear beyond 6 peradventure is that the DPP are being informed that 7 Tracey Clarke is a truthful witness. There is no 8 prevarication about the tip-off allegation. 9 Then if we go to the neglect file at page [09082] -- 10 THE CHAIRMAN: Which document is this? Is this Irwin's 11 statement or McBurney's interview? 12 MR ADAIR: This is the neglect file put in by Mr McBurney. 13 THE CHAIRMAN: Thank you. Sorry. 14 MR ADAIR: If you go to [09080], first of all, please, at 15 paragraph 125, you will see, just to put this in 16 context, that what this is referring to is -- the 17 lines just above that at paragraph 124 relating to: 18 "He also told me that Robbie Atkinson was ringing 19 him every day to keep him up-to-date with the police 20 investigation." 21 This was relating, therefore, to the Tracey Clarke 22 tip-off allegation. This has not been mentioned very 23 much during the course of dealing with this report: 24 "This aspect of Witness A's statement cannot be 25 taken lightly and in many respects has a ring of truth 24 1 to it." 2 Now, we have dealt --and a lot of the concentration 3 has been on the word "sceptical", which I will come to 4 in a moment, but, in fact, prior to using that, 5 Detective Chief Superintendent McBurney has told the 6 reader that it can't be taken lightly and in many 7 respects has a ring of truth to it. 8 So, first of all, he has told the DPP in terms in 9 the murder file that Tracey Clarke is a truthful 10 witness, a witness of truth. Then in the neglect file 11 he says that her allegations can't be taken lightly and 12 in many respects has a ring of truth to it. 13 Then at page [09082], the reference, if you 14 highlight paragraph 135, just at the bottom of that 15 paragraph he indicates to the reader: 16 "Having found no evidence other than the telephone 17 billing to substantiate the allegation of Witness A, one 18 can remain sceptical, but there is absolutely no other 19 evidence to substantiate the allegation by Witness A." 20 What we say, sir, is that Detective Inspector Irwin 21 and Mr McBurney have told the DPP, first of all, that 22 Tracey Clarke is a truthful witness. They then in the 23 neglect file say that what she says about the 24 tipping-off has the ring of truth about it, and they 25 indicate scepticism about Atkinson's explanation for how 25 1 this all arose. 2 To suggest, in our submission, that this was 3 misleading is unfounded. 4 The question arises: should he also have included in 5 the neglect file what he, in fact, knew about 6 Andrea McKee's previous involvement with Tracey Clarke? 7 Perhaps he should have, but is one, I rhetorically ask, 8 going to say, because he didn't, that therefore there is 9 something sinister in his motivation? 10 He certainly did not say anywhere in either of these 11 reports, for example, that he believed Michael McKee or 12 that he believed Atkinson. He did quite the opposite. 13 He expressed his views that the probability was that the 14 truth lay with Tracey Clarke. 15 Of course, the issue arises -- and obviously 16 Sir John will know more about this than I do -- as to 17 what exactly has to be encompassed in a report to the 18 DPP when considering a file that is sent to them for 19 them to consider whether or not to prosecute. How much 20 detail does one go into? 21 I also mention, sir, of course, that Mr McBurney was 22 obviously at great pains all along to protect 23 Andrea McKee. I think I am right in saying that she is 24 not mentioned at all in the murder file. I think I am 25 right in saying that there was evidence that McBurney, 26 1 in fact, told Mr Irwin, "Look, keep Andrea McKee out of 2 this. There is no need to mention her name in the 3 murder file at all". 4 One might say, "Look, why wasn't it in the murder 5 file that the reason Tracey Clarke made a witness 6 statement was because Andrea McKee came along and told 7 us this and we met her up at the graveyard and took her 8 down and she was with Tracey Clarke?" 9 I think I am right in saying there is no mention of 10 that in the murder file either. So there is obviously 11 some concern to protect Andrea McKee. It may be that 12 was continuing along when the neglect file was submitted 13 THE CHAIRMAN: Is my recollection correct that McBurney said 14 in his interview words to this effect: he didn't think 15 Andrea McKee carried the case any further forward? 16 MR ADAIR: That's right. 17 THE CHAIRMAN: Therefore, that was not anything the Director 18 would need to know about. He wanted to know what the 19 evidence was. Is that a fair summary? 20 MR ADAIR: I think so, sir. It comes back to the point, as 21 I say, what has to be included in these reports? Of 22 course, a policeman's belief whether a person is 23 truthful or untruthful in many respects with the DPP is 24 neither here nor there. They decide whether to 25 prosecute on the evidence that's presented to them. 27 1 I suspect it is useful to the DPP to know whether the 2 police have very good reason to doubt the truthfulness 3 or otherwise of a witness, but the question does arise 4 as to how much is supposed to be included in these 5 reports to the DPP? 6 To suggest that it is misleading, in our submission, 7 is unfounded. The best that might be said, or worst 8 that might be said, is that it might have been 9 preferable if the knowledge that the police had about 10 Andrea McKee's previous involvement was included in the 11 report. I don't think I could gainsay that. That might 12 have been preferable, but to say that, therefore, there 13 is something sinister in relation to Mr McBurney, in our 14 submission is unfounded. 15 Now, the next stage that Mr McGrory says that best 16 investigative strategy was not followed is in October of 17 1999. This is the point, sir, you will recall, when the 18 information came to hand to Detective Inspector Irwin 19 that Andrea McKee and her husband had separated. 20 Sir, I think it is worthwhile -- I mention just for 21 completeness at this stage that, of course, the 22 allegation is also made against Mr McBurney that there 23 is no record anywhere of what his strategy was. In 24 fact, the converse is true. This memo demonstrates in 25 writing what his strategy was and what had been 28 1 indicated to Mr Irwin. Quite the converse to what is 2 being suggested. 3 The memo is at page [02395]. It says: 4 "Michael and Andrea McKee who resided at [blank] 5 Craigavon have separated. Michael McKee left Andrea for 6 another woman and has moved to [blank]. Andrea has 7 returned to Wales. Detective Chief Superintendent 8 McBurney informed of this development and enquiries 9 being made to confirm this and their present location. 10 Further details submitted in due course and at 11 an appropriate time regarding coroner's inquest", and 12 this is another point that is criticised, that he should 13 have moved there and then. 14 Clearly, what was in their minds was to move once 15 the situation concerning the coroner's inquest, which 16 was being objected, to, of course, by the Hamill family, 17 was resolved. So: 18 "... at an appropriate time regarding coroner's 19 inquest both to be spoken to again", and here is the 20 important point, "reference their previous accounts. 21 This will be updated by message sheet." 22 So here in black and white is the strategy that had 23 been engaged and adopted by Mr McBurney and communicated 24 to Detective Inspector Irwin. 25 REV. BARONESS KATHLEEN RICHARDSON: It says the other way 29 1 round, doesn't it? This is Irwin speaking to McBurney. 2 MR ADAIR: Yes. We say this memo demonstrates that there 3 was a strategy, first of all, that Mr Irwin was aware 4 of, secondly, that he was in communication with 5 Mr McBurney about, and, thirdly, that it referred to 6 tackling Andrea McKee reference her previous account, 7 not just talking to her again about some nebulous 8 matter, but he wanted to actually put to her -- 9 REV. BARONESS KATHLEEN RICHARDSON: The initiative seems to 10 be from Irwin at this point. 11 MR ADAIR: No. This simply is a memo indicating that Irwin 12 has become aware of the fact that the McKees have 13 separated. He has communicated this to Detective Chief 14 Superintendent McBurney, and that, at a later stage, 15 reference coroner's inquest, they are to be spoken to 16 again reference their previous accounts. 17 What we're saying is this copper-fastens the fact 18 that McBurney had adopted this strategy, that he 19 communicated this strategy to Irwin, and here is Irwin 20 actually recording on the memo sheet information 21 relevant to that strategy. 22 THE CHAIRMAN: You say this memo has to be read in the 23 context of what had passed earlier between McBurney and 24 Irwin? 25 MR ADAIR: It is part of the continuing process of 30 1 communication of his strategy between McBurney and Irwin 2 and absolutely confirms his views that he had expressed 3 to Irwin at the time Andrea McKee made the false 4 statement. This is potentially the breakthrough, and 5 here it is recorded in black and white. 6 Irwin's evidence about this is on 9th September. It 7 is my page 131. Starting at line 14. That is 132 on 8 the screen: 9 "Question: At this point, after Andrea McKee has 10 made the statement, did Mr McBurney then explain he had 11 a strategy as to what he would do, having put you in the 12 uncomfortable position of taking the statement? 13 "Answer: When I came out of that interview, sir, 14 I believe I met Mr McBurney a few days later and 15 explained to him what had occurred in taking the 16 statement and I said, 'You need to get a team with 17 another investigating officer and investigate that area 18 of it'. He said, 'Leave it with me', and he came back, 19 because, at that stage, the Hanveys hadn't been 20 interviewed, sir, and he came back to me some time 21 later." 22 At page 133, line 1: 23 "He says, 'Now is not the right time to jump. What 24 we would get at the minute is we would get Andrea McKee, 25 potentially get Andrea McKee, but we wouldn't get 31 1 Atkinson', because Andrea McKee at that stage was 2 closely linked to Michael and closely linked to the 3 Atkinson as and his belief was at that she would not 4 give evidence against Atkinson. That was his belief at 5 that time, sir. 6 "Question: Did he say at that time that he had 7 a hunch that this union between the McKees wouldn't 8 last? 9 "Answer: What he said was that he was delighted 10 that -- not delighted -- he was pleased that two 11 individuals that weren't attached to the family units 12 had become involved in the investigation and he saw that 13 as the opportunity to get to the truth. 14 "As I said earlier, sir, we are talking about a 15 one-minute phone call. We are talking about not only 16 what was said or who made the phone calls, but what was 17 actually said in that phone call. That was the only way 18 he was going to convict Mr Atkinson, because Mr Atkinson 19 had said he had went home, had gone to bed, and had no 20 dealings -- and wasn't aware of the phone call. The 21 only way to break that was to get direct evidence from 22 somebody involved in that alibi issue." 23 "Question: See, the problem with all of this is, 24 I have suggested to you, Inspector Irwin, it is the best 25 part of another three years before anything does happen. 32 1 "Answer: That's correct, sir, yes. 2 "Question: I am suggesting to you that it stretches 3 the imagination far too far that something as important 4 as this, in terms of an investigative strategy, would be 5 let sit for three years. 6 "Answer: But, sir, what is the point in jumping too 7 early and losing the opportunity? 8 "Question: Well, what if the opportunity never 9 comes. 10 "Answer: Yes. Put it this way, sir. Andrea McKee 11 was going to be arrested -- I am in no doubt about 12 that -- at some stage and be interviewed about it. 13 I know you don't want to accept that, sir, but if 14 you look at the message sheet that I also put in, in 15 '99, or whatever it was, that Andrea McKee and her 16 husband had separated, there is a message sheet in the 17 system and that Mr McBurney intends to interview these 18 witnesses again. 19 "Question: But what if they had not separated? 20 "Answer: Sir, they were going to be arrested then. 21 That's what I am saying. 22 "Question: How long did Mr McBurney say he was 23 going to wait for this separation before he would then 24 arrest her? 25 "Answer: The trial had went on sir, and then he was 33 1 very keen to get an inquest. 2 "As you are aware, the inquest process went on for 3 longer than we anticipated. You were objecting to the 4 inquest and Mr McBurney wanted an inquest for all the 5 information to come out." 6 Then if one goes down to line 21, page 135, he says: 7 "Answer: ... All I can say from my point of view is 8 that Mr McBurney, to me, was keeping it under review, 9 and I was briefing him regularly during the coroner's 10 inquest of how the process was going." 11 So, in our submission what was happening in 12 October 1999 confirms, first of all, that the strategy 13 was in place, confirms that McBurney and Irwin discussed 14 it, not just on one occasion, but, if Irwin is right, on 15 a number of occasions. They were awaiting the outcome 16 of the inquest before making their move towards 17 Andrea McKee. 18 In fact, as we now see, when the coroner informed 19 the parties there was not to be an inquest, they moved 20 within a number of days to re-interview -- their 21 intention to move was formulated within a number of days 22 and they, in fact, moved, as we know, on, I think it is 23 20th June. 24 THE CHAIRMAN: We shall have to consider why there was that 25 wait between October and the decision not to have the 34 1 inquest; in other words, why wait for there to be 2 an inquest? 3 MR ADAIR: That's something which, sir, I can't give you 4 an answer to, but it would appear that they certainly 5 decided that it would not be appropriate to re-interview 6 Andrea McKee before the inquest situation had been 7 resolved. 8 Would it have been appropriate at that stage, 9 an inquest in the offing, to have gone over and 10 re-interviewed Andrea McKee? I don't know. It may have 11 been. I am not absolutely sure tactically or 12 strategically why it was necessary to wait for the 13 inquest situation to be resolved, but that certainly 14 seems to have been their mindset, unless the memo sheet 15 is just made up 16 THE CHAIRMAN: What was the practice in Northern Ireland 17 about holding an inquest when there was an ongoing 18 investigation? 19 MR ADAIR: The inquest usually awaited the outcome of the 20 ongoing investigation. It was opened formally and then 21 adjourned until the outcome of the investigation. 22 THE CHAIRMAN: To avoid that, there could have been 23 a continuation of the investigation not disclosed to the 24 coroner. Now, what do you say about that, about the 25 desirability or otherwise of that? 35 1 MR ADAIR: Sorry, sir, there could have been an ongoing -- 2 just keep the investigation going to delay the inquest? 3 THE CHAIRMAN: No, no, no. Without telling the coroner, so 4 that he would hold his inquest, but there would still be 5 an ongoing investigation about which he didn't know, 6 because he was not being told. 7 MR ADAIR: I am not aware of that ever happening, sir, to be 8 absolutely honest with it. Are you suggesting it is 9 kept hidden from the coroner? 10 THE CHAIRMAN: I am not -- 11 MR ADAIR: I know you are not suggesting it, but are you 12 asking me -- 13 THE CHAIRMAN: I am just asking you about the propriety of 14 that. If the practice would have been to adjourn the 15 inquest because there was an ongoing investigation, what 16 do you say about the proposition they could have 17 continued the investigation without telling the coroner 18 and, therefore, without delaying the inquest? 19 MR ADAIR: That would not be a proper course of action, sir. 20 THE CHAIRMAN: This is what I am asking you about. 21 MR ADAIR: My understanding is that the police liaise with 22 the coroner and say "Right. The investigation has now 23 reached its conclusion and it is an appropriate time 24 that you are allowed to hold an inquest". Mr McGrory 25 might be able to answer this better than I can, sir. My 36 1 experience of inquests is zero, actually. 2 THE CHAIRMAN: Maybe Mr Wolfe can tell us more about it. 3 MR ADAIR: I do know, just from practice, that the coroner 4 did not hold the inquest until the investigation was 5 over. It would be quite wrong for the police to 6 misinform the coroner that an investigation was 7 continuing. 8 THE CHAIRMAN: Or simply not tell him. 9 MR ADAIR: Or simply not tell him in some way to try to 10 delay the inquest. I don't think that has been 11 suggested in this case, sir. 12 MR UNDERWOOD: We are at the great advantage of having 13 Mr Daly here, who, amongst other things, acted for the 14 coroner. It may well be, if there is a question about 15 this, I can throw him to the lions. 16 MR WOLFE: I am grateful for that. 17 MR ADAIR: The fourth stage which Mr McGrory refers to is in 18 June 2000. Now, if we could have page [02416], 19 please -- 20 THE CHAIRMAN: I think we will have a break at this stage 21 and come back at 11.15 am. 22 (11.05 am) 23 (A short break) 24 (11.15 am) 25 THE CHAIRMAN: Yes, Mr Adair? 37 1 MR ADAIR: Thank you, sir. 2 Can I clear up and answer, I hope, your question, 3 sir, as to whether Mr McBurney mentioned the other 4 enquiries that he was involved in? I don't have 5 a page number, but it is Mr McBurney's first Inquiry 6 interview at page 13. Sorry. It starts at page 12, 7 I am told. Sorry, sir. It is giving us page 12 on 8 our ... 9 THE CHAIRMAN: Never mind. Just tell us what he said. 10 MR ADAIR: He recounts the murder investigations that he was 11 involved in in that period and, in fact, in his second 12 Inquiry interview makes reference to the fact that one 13 of the murder enquiries relating to the murder of the 14 two policemen in Lurgan had to be suspended because of 15 lack of resources. 16 THE CHAIRMAN: Thank you. 17 MR ADAIR: Sir, I think I am right in saying -- I have not 18 re-read the entirety of the transcript again, but I 19 don't think he said, "The reason I did not interview 20 Mr Atkinson until September was because of ..." 21 I am simply stating, sir, that, factually, that's 22 what he was involved in at the time. 23 Secondly, there are two other matters I should clear 24 up before I continue. As I have told you, I have zero 25 experience of inquests, but having spoken to Mr Daly, 38 1 I am told, sir, that the coroner has a discretion to 2 hold an inquest, even if an investigation is continuing, 3 except where someone is charged with murder and that is 4 either pending or ongoing. So that's what I am told by 5 Mr Daly. I see him nodding in agreement, sir. That's 6 the legal position. 7 The third thing that I have been asked to clarify by 8 Mr McGrory is in relation -- and I am going back to the 9 Land Rover crew and their discussion with Forbes and 10 Bridgett. Mr McGrory had, during the course of his 11 submissions, said they, ie the Land Rover crew, knew 12 that they were trouble-makers, Stacey and Bridgett 13 were trouble-makers and that's what I was quoting, 14 Mr McGrory's reference to that. Mr McGrory now wants to 15 correct himself and me. 16 MR McGRORY: In the best traditions of confessing to 17 wrongdoing in the course of advocacy. 18 MR ADAIR: Apparently, it was P40 who gave the evidence he 19 knew they were trouble-makers. There is no direct 20 evidence that the others knew that they were 21 trouble-makers, but one can -- we would respectfully 22 say, if they are known to P40, they may have been known 23 to the others as trouble-makers. I just can't say. 24 THE CHAIRMAN: Thank you. 25 MR ADAIR: I am coming on -- I know I am perhaps taking 39 1 a little longer than anticipated, and I will try to be 2 as brief as I can in relation to these points while 3 doing justice to my clients. 4 The fourth stage I was referring to, and that 5 Mr McGrory referred to, was June of 2000. 6 Now, this starts off with the message sheet that 7 appears at [02416]. If you just highlight that, please, 8 it says: 9 "Confirmed formally ..." 10 It is dated, you will see, 2nd June 2000: 11 "Confirmed formally by Mr Leckey, HM coroner, that 12 he had reconsidered the situation regarding holding 13 an inquest into the death of Robert Hamill and that he 14 had now decided not to hold an inquest. He requested 15 that I now inform Witness A and Witness B of this 16 situation. Witness B informed by DC Honeyford. 17 Witness A now residing in ...", it gives her address, 18 "with Allister Hanvey and is believed to be pregnant. 19 Presently no contact with Witness A and her mother. 20 Attempts made to contact Witness A - no answer. Coroner 21 informed of this position." 22 The important part is: 23 "Updated Detective Chief Superintendent McBurney of 24 situation regarding coroner's formal decision and as 25 a result will not have the opportunity to speak again to 40 1 a number of individuals. Decision made to re-interview 2 Michael and Andrea McKee. Developments reported via 3 message sheet." 4 Then it goes on to say: 5 "Actually informed of this decision on 19th May 2000 6 by HM Coroner himself. No action was required until he 7 formalised his decision in writing." 8 So informally they appear to have been told on 9 19th May, but then the formal decision comes some time 10 later. 11 Now, what we say, sir, is again contrary to the 12 suggestion that there is no record anywhere which 13 confirms Mr McBurney's strategy, that this again is 14 confirmation of the strategy that had been employed by 15 Mr McBurney along with Inspector Irwin from the outset. 16 Now, the suggestion is made also in relation to the 17 events that occurred in June prior to McBurney and Irwin 18 going over to see Andrea McKee -- it was suggested 19 essentially, really, it was Sir Ronnie Flanagan who, for 20 one reason or another, pushed and pushed for this to 21 occur. 22 Now I know it is not suggested there was a proper 23 motivation for that, that his motivation was something 24 else. It was also suggested that Mr McBurney lied, and 25 that's the word that was used, when he told the Inquiry 41 1 interviewers that he had not spoken to the chief 2 constable prior to going over to speak to Andrea McKee. 3 Dealing with the latter point, first of all, it 4 seems highly probable that Mr McBurney did, in fact, 5 speak to Sir Ronnie Flanagan before going to interview 6 Andrea McKee, because we have heard from the chief 7 constable about that. Therefore, Mr McBurney was wrong 8 when he said he spoke to no-one before he went over to 9 speak to Andrea McKee. 10 We would respectfully submit what loses any 11 rationale is why that would be a lie as opposed to 12 something that he simply either forgot or did not 13 recall. What possible motivation could Mr McBurney have 14 had for saying, "I didn't speak to anyone before I went 15 over and spoke to Andrea McKee"? Unless one is going 16 into the realms of absolute fantasy land and some wild, 17 sinister motivation for this, what possible reason would 18 he have for lying about that? 19 In fact, wouldn't it have been very much in his 20 interests to say, "Oh, yes, I went to speak to 21 Sir Ronnie and told him about the window of opportunity. 22 He agreed with it and off I went". So to say it is 23 a lie is, in our submission, unfounded. 24 We know also that, whilst at one stage he said he 25 spoke to no-one before he went to speak to Andrea McKee, 42 1 virtually I think on the next page of his interview he 2 recounts to the interviewer that he had spoken to 3 ACC White before he went over to see Andrea McKee, 4 because ACC White had to arrange the resources, the 5 plane, the manpower and so on. 6 SIR JOHN EVANS: Mr Adair, wasn't the issue that McBurney 7 was being asked about whether or not he was under 8 instructions from the Director's office or from 9 whomever, and that was the point he was raising, that he 10 didn't feel the need to check out with any of those 11 before he continued his investigation? It is not 12 anything to do, in my view, with what he had to say 13 about advising senior police officers. 14 MR ADAIR: That's right. I think that's absolutely right. 15 The reason I am dealing with it is because it is 16 suggested that this is a lie. What possible motivation 17 for a lie about speaking to the chief constable is hard 18 to see, unless someone can suggest one to me. It is 19 just very difficult to see. 20 What is absolutely crystal clear, in our submission, 21 is that it was McBurney who went to see the chief 22 constable and told him about the window of opportunity. 23 It has been suggested that this was not McBurney doing 24 this off his own bat. Because of the words "I pushed 25 and pushed", used by the chief constable, and because of 43 1 the ambiguity in some of his answers, the suggestion is 2 being made that this was not McBurney's idea at all, 3 that this was the idea of the chief constable. 4 I think if one looks at the transcript yesterday of 5 what the chief constable actually said, it is clear 6 beyond peradventure that the sequence events was that 7 McBurney went to the chief constable and informed him of 8 the opportunity, and the chief constable -- whether the 9 words "pushed and pushed" or "encouraged" should be 10 used -- agreed with that strategy. 11 Some confusion has arisen because of the two 12 meetings that were had first of all with Mr xxxxx and, 13 secondly, with Mr Langdon. The first meeting, as we 14 know, was on 9th June, and I am not going to call up 15 these documents, sir, because I think it's fairly 16 self-evident. Having said that, I now contradict myself 17 and I will call up those documents. Page [39623], 18 please. This is a memo dated 12th June of a meeting 19 that Mr xxxxxx had with the chief constable on 9th June 20 concerning the tip-off allegation. 21 Now, I am not going to go through it and I will 22 stick to that, but there is no mention in that memo of 23 any new breakthrough in relation to Andrea McKee. That 24 was not discussed at that meeting. 25 You will also see, if you read the transcript of 44 1 what Sir Ronnie Flanagan said concerning where he got 2 this information for this meeting of 9th June, that he 3 thought it may have been Maynard McBurney. It could 4 have been the assistant chief constable, but there was 5 no degree of certainty where that information came from. 6 The likelihood is, whatever briefing the chief 7 constable received before the 9th June meeting, it was 8 not from Maynard McBurney, because Maynard McBurney 9 would have said to him at that meeting, "What's more, 10 there is a further line of enquiry that we are about to 11 follow". 12 So this meeting of 9th June makes no reference 13 whatsoever to the tip-off allegation. 14 The second memo from Mr Langdon is at page [39692]. 15 This is a memo of 24th July of 2000 relating to 16 a meeting on 21st July of 2000 between the chief 17 constable and Mr Langdon. Where the confusion and 18 allegation concerning -- or the suggestion that it was 19 the chief constable who had directed this re-interview 20 of Andrea McKee comes from is from the following page, 21 [39693], paragraph 7. If you would highlight that 22 paragraph, please: 23 "I asked what had precipitated the new criminal 24 investigation. The chief constable said that when the 25 coroner had given 'the gem' to Robert Hamill's family 45 1 solicitors he himself had 'pushed and pushed' and the 2 re-interview of Mrs McKee followed directly from that. 3 ('the gem' is presumably the information that statements 4 identifying the murderers had been withdrawn)." 5 From that, understandably, at first blush, 6 Mr McGrory makes the suggestion that it was not 7 Mr McBurney's idea to re-interview Andrea McKee, but, in 8 fact, this came from the chief constable. 9 It is clear, in our submission, if one goes to 10 Mr Flanagan's evidence on 10th September at page 200, 11 Day 61, and at line 16 ... 12 THE CHAIRMAN: Page 201, 7: 13 "Answer: I was pushing and pushing ..." 14 MR ADAIR: Unfortunately, there is confusion about the 15 page numbers. I will tell you what he said, because 16 I can say it in a sentence, sir. What Sir Ronnie said 17 was that "the gem" had been given to him, but what drove 18 him to insist that this woman should be re-interviewed 19 was the late Maynard McBurney briefing to him of a new 20 development that gave, in his view, some hope. 21 He later went on to say: 22 "Answer: I certainly pushed and pushed, having been 23 given the briefing by the late Maynard McBurney." 24 That's page 200, line 22. Stop there. 25 He later goes on to say: 46 1 "So his briefing to me was before he travelled to 2 interview her." 3 That's Maynard McBurney's briefing. (Page 201, 4 line 12). 5 He later went on to say that McBurney appeared to be 6 absolutely delighted to have a new opportunity, because 7 he always suspected that the alibi was not a real alibi 8 THE CHAIRMAN: We don't have to look at that phrase "pushed 9 and pushed" uncritically. It may have been exuberance, 10 purple patch, call it what you will. 11 MR ADAIR: The only point I make about it is this, sir, that 12 it was McBurney's idea. The suggestion has been made 13 that because of that reference in the Langdon note that 14 it wasn't McBurney who initiated, who formulated, first 15 of all, the idea and initiated the idea and suggested 16 the idea, but, in fact, it was, and again, totally in 17 accordance with his strategy. 18 Now the -- as we know, just for completion, he went 19 over to Wales, got a witness statement from 20 Andrea McKee, and here is the breakthrough. I will deal 21 with this briefly in a minute or two. 22 The question arises then, now that we know, we say, 23 and can see in black and white the strategy developing 24 and developed, why is it suggested that, in fact, this 25 is not a strategy, but he had an ulterior motive? 47 1 Mr McGrory says that the suggestion is that he 2 stumbled. What I take that to mean is possibly that 3 initially Mr McBurney, because of the person he was, was 4 determined to pursue Atkinson, to root out a bad 5 policeman, but for some reason, at some stage, which it 6 is not absolutely clear it is suggested, but at some 7 stage, he stumbled. 8 Now, of course, to say that in the face of the 9 overwhelming evidence about the integrity and character 10 of Mr McBurney requires a reason. Why did he stumble? 11 Why did a man, who has potentially or probably set off 12 to root out a bad policeman, stumble? As I say, in the 13 face of the overwhelming evidence from both junior, 14 senior and the most senior police officer concerning the 15 character of Mr McBurney, some reason has to be grasped. 16 In our submission the reason that is suggested is 17 grasping at straws, because the reason that is suggested 18 now, at a very, very late stage, is that the chief 19 constable at some stage intervened and was the guiding 20 hand to Mr McBurney's non-pursuit of Constable Atkinson. 21 It is based on no evidence and it is interesting, we 22 respectfully say, to say how this argument developed. 23 The suggestion essentially is that because 24 Sir Ronnie Flanagan has potentially lied about, for 25 example, the meeting with Mr Langdon where it is alleged 48 1 he used the physical form of cradling a head when 2 describing a situation with Robert Hamill, because he 3 lied about that and potentially lied about one or other 4 matters in his evidence, therefore he is the guiding 5 hand in relation to Mr McBurney. 6 Well, that's a quantum leap which is unjustifiable, 7 in our respectful submission. To say that because 8 a person lies about a matter which may be in their own 9 interests to lie about -- now, Sir Ronnie Flanagan had 10 every reason -- I am not saying that he is lying about 11 it. That's not part of my brief, but say he is lying 12 about that incident with Mr Langdon, well, it is out of, 13 you may think, self-interest that he should say he 14 didn't do that, because it might be regarded as 15 something which was totally inappropriate, but what we 16 say is that it is taking a leap in the dark to then say 17 because a person lies about one thing which we can 18 explain out of self-interest, therefore he is the person 19 who is guiding Mr McBurney. 20 Can I say this, sir? That's a very serious 21 allegation to make, not only against 22 Sir Ronnie Flanagan, but it is a very serious allegation 23 to make against Mr McBurney, that a man of his 24 integrity, character and background was essentially 25 colluding with the chief constable to prevent the proper 49 1 investigation of a corrupt policeman. It is founded on 2 sand. It is an allegation, as I say, that came at 3 a very late stage in the day. 4 It is interesting just to see how this allegation 5 arose in terms of Mr McGrory's submissions. It 6 undoubtedly was referred to in a number of lines in his 7 written submissions, as Mr Underwood pointed out. 8 If one looks at page 118 of the consolidated 9 submissions -- sorry, page 118 of Mr McGrory's 10 submissions on 7th December 11 SIR JOHN EVANS: Day 70? 12 REV. BARONESS KATHLEEN RICHARDSON: Day 70. 13 MR ADAIR: At page 118, without calling it up, Mr McGrory 14 suggested it was a crime of opportunity by Mr McBurney. 15 This was the initial allegation made against 16 Mr McBurney, that it was a crime of opportunity. 17 Then at my page 131 on 7th December -- to save time, 18 sir, if I read this, and then in due course I ask you to 19 have a look at it perhaps on the transcript. It is my 20 page 131. That may be 130 or 132. What Mr McGrory says 21 is: 22 "That is right at the heart of this Inquiry, we 23 submit. It is a very, very disturbing submission to 24 have to make, but it is collusion in its worst form. It 25 is a very subtle form of collusion, in the sense that, 50 1 if it is correct that Atkinson, who is a policeman, had 2 engaged in the tipping-off of a murder suspect for one 3 reason or another, and that there was a belief on the 4 part of senior police that that was so, and even in 5 McBurney's case that he is making it was a belief, 6 because, without it, there would have been no strategy, 7 for nothing to be done -- 8 "The Chairman: So you say this was collusion 9 between McBurney and his senior officers? 10 "Mr McGrory: No." 11 So on 7th December, in making his submissions, when 12 asked the direct question: 13 "The Chairman: So you say this was collusion 14 between McBurney and his senior officers? 15 "Mr McGrory: No, it is collusion between McBurney 16 and Atkinson, albeit it is not that the two necessarily 17 ever spoke to each other, apart from in the context of 18 the investigation, but it is our respectful submission 19 that, for reasons that were best known to Detective 20 Chief Superintendent McBurney, he," McBurney, "decided 21 to bury it. 22 "Now we can only speculate as to why he might have 23 done that ..." 24 That's absolutely right, because what has happened 25 in this case is, when Mr McGrory, with respect, comes 51 1 back on 8th December, he does start to speculate, and 2 that speculation is because the chief constable has lied 3 about cradling and one or two other matters, therefore 4 he is guilty of collusion, and that's precisely what has 5 happened 6 THE CHAIRMAN: As a matter of logic, if someone tells a lie, 7 you may say that means we have to look more carefully at 8 other parts of his evidence, but you can't then put 9 a proposition to him which he denies and say, "That is 10 a lie", because you have to have some foundation for the 11 proposition. 12 MR ADAIR: Exactly, and there is not. 13 THE CHAIRMAN: The lie is not a foundation. 14 MR ADAIR: No, sir, but what is, in our submission, 15 troubling -- and I come back to where I started -- is 16 that these people are human beings. McBurney's wife is 17 a human being and she reads on this transcript for the 18 first time, not only was his investigative strategy 19 flawed, but he is guilty of collusion with the chief 20 constable. What we say is that this should be, in our 21 submission, not just rejected by the Panel, but should 22 be commented on by the Panel and made clear what their 23 thoughts are about it. 24 Mr McGrory says: 25 "Now we can only speculate as to why he might have 52 1 done that", that's McBurney, "and whether or not he felt 2 he had the green light from his superior officers or had 3 a green light from his superior officers or whether or 4 not he was deceiving his superior officers. We just 5 don't know." 6 "We just don't know". This is on 7th December. By 7 8th December, there is collusion. 8 On 8th December, at page 2, and it may be if we 9 could call this up, page 2 on 8th December, line 14. It 10 is your page 3, this page 3. 11 "Now what we say to that is Detective Chief 12 Superintendent McBurney may have not have set out with 13 that intention", that's the intention of protecting 14 Atkinson, "but that, at a certain point, the opportunity 15 certainly arose for him to take a different course, and 16 that opportunity clearly arose between the interviews of 17 9th September and 9th October, when the ICPC, for some 18 inexplicable reason, which we will come to, absented 19 itself from the supervision of the investigation. 20 "The question then must arise: even if he had 21 an opportunity, why would he take it? Why would 22 a Detective Chief Superintendent take it upon himself to 23 defend the good name of the RUC by deliberately 24 compromising or sabotaging his own investigation into 25 an allegation that there was a corrupt policeman in the 53 1 Land Rover when Robert Hamill was attacked and murdered? 2 Our answer to that has to be he either did it on his own 3 or he had some guiding hand. 4 "The Chairman: Some? 5 "Mr McGrory: Guiding hand. He may" -- and the use 6 of this language is actually interesting -- "He may" -- 7 this is a collusion allegation -- "He may have had 8 an indication from someone above him -- he may have 9 had -- that he could behave in this way or that he 10 should behave in this way if the opportunity arose." 11 Then if we go to the next page, line 24, and this is 12 interesting: 13 "We make the submission that if there was a guiding 14 hand, it might" -- "might" -- "have been 15 Sir Ronnie Flanagan." 16 There are other comments, sir, which you will -- and 17 allegations then made, which, again, I am not going to 18 take up the Panel's time with. You will have the 19 opportunity at some stage to read these before 20 considering your conclusions, but they are replete with 21 "may" and "might" and "possibly", but yet the allegation 22 is out there that the stumbling by Mr McBurney was 23 Sir Ronnie Flanagan and his guiding hand. 24 Of course, the reality is, in our submission, that 25 that allegation, or something akin to that, has to be 54 1 made to try to explain why a man such as 2 Maynard McBurney would do as is being suggested. It is 3 a wee bit like, if someone does something or says 4 something about me, which, on one view, might be 5 offensive, but might have an innocent explanation, if 6 I know something about the character of that person, 7 their integrity, their ways of doing things, I will 8 probably say, "Well, I am sure he didn't mean to offend 9 me or mean to hurt me". If, on the other hand, I know 10 he is a rogue, then I will probably say, "He probably 11 intended to damage me either verbally or in whatever 12 other way". That's just part of human nature. 13 Once we know the -- the importance of the character 14 of a person is that they are likely to be more 15 believable, first of all, in what they say, which is 16 common sense, but also in the context of this Inquiry 17 knowing what we do know about McBurney's integrity and 18 what everybody has said about his determination to root 19 out the likes of Atkinson, some startling proposition 20 has to be put to this Inquiry as to why he would have 21 tried to protect him. 22 Of course, the startling proposition is that there 23 was collusion or a guiding hand between 24 Sir Ronnie Flanagan and Mr McBurney, which we ask the 25 Panel to reject out of hand. 55 1 Now, I just want to say also that, in fairness to 2 Mr McBurney, much has been said and much has been 3 alleged about him. Can I remind just very briefly the 4 Panel as to some of the -- as to what some of the 5 witnesses said about what they knew about Mr McBurney? 6 One of those witnesses was Mr Stewart, who, as we 7 know, did not particularly like Mr McBurney. That was 8 certainly the impression that you may have got. At 9 page [1266] of the consolidated submissions, bottom 10 paragraph, this is quoting what Mr Stewart said: 11 "Question: Can I ask you this, just to lay the 12 groundwork for the question first of all? You knew 13 Mr McBurney? 14 "Answer: I did, yes. 15 "Question: Did you get on with him? 16 "Answer: Not especially, no. 17 "Question: Was he a friend? 18 "Answer: No. 19 "Question: If you asked him what day it was, what 20 would his reply be? 21 "Answer: He would probably want to know why you 22 wanted to know what the day was." 23 He further stated then at page 177: 24 "Answer: Having been involved in very considerable 25 detail in this investigation, being aware of everything 56 1 that Mr McBurney did, did you find anything that 2 suggested Mr McBurney was other than enthusiastic in 3 pursuing Atkinson? 4 "Answer: No, nothing. 5 "Question: You did, however, carry out steps that 6 he hadn't. There is no gainsaying that. 7 "Answer: Yes, that's true. 8 "Question: Knowing McBurney as you did, because, 9 unfortunately, as we all know, he is deceased and the 10 Panel will not be able to see him, so it is important we 11 get some flavour about the man, what would have been his 12 attitude towards getting a bad policeman? 13 "Answer: Oh, he would have been absolutely 14 determined to bring that person to justice, totally 15 determined. He would have viewed such a person with 16 absolute disdain." 17 Then at page [1268] starting with the paragraph near 18 the top of the page. This is in the consolidated 19 submissions again: 20 "Perhaps the most significant piece of evidence 21 given as to the conduct and intentions of DCS McBurney 22 in both the murder and tip-off investigations was that 23 of K, who, as we know, re-investigated these matters 24 with a fine-toothed comb. His evidence first dealt with 25 the extent of the original investigation up to the date 57 1 he joined at page 1." 2 Could I have [1269] please, starting at the bottom 3 of the page: 4 "Question: Can you help us about your understanding 5 of why it took until June 2000 for the McKees to be seen 6 again when they split up in 1999? 7 "Answer: In terms of what I was briefed by 8 Mr McBurney, and on my appointment he had indicated to 9 me that his intention was always to monitor the McKees, 10 and he briefed me that they had subsequently separated 11 and he briefed me that his strategy always was that he 12 may have been able to penetrate this conspiracy by 13 taking advantage of that separation, and, consequently, 14 when he found out that they had separated and were both 15 living apart, he took the decision at that point to 16 approach both of them. 17 "Question: Obviously, I am sure you are aware there 18 is a fair amount of controversy about the strategy over 19 the McKees. Sadly, of course, Mr McBurney is unable to 20 answer for himself now. 21 "Answer: Yes. 22 "Question: What I am exercised about is to try to 23 get everybody's impressions as best I can of how he 24 acted. When you were briefed about that and his, as it 25 were, long-term, long-view strategy, how did that strike 58 1 you at the time? 2 "Answer: I had no difficulties with that. 3 "Question: So not so exceptionally mad as to be 4 impossible? 5 "Answer: No. He had to penetrate a conspiracy, 6 which is very, very difficult to do in terms of criminal 7 investigation, and, I mean, I think that his strategy 8 which was discussed with me was that, really, to break 9 a conspiracy, you have to penetrate it and get one of 10 the conspirators to come out and tell the truth about 11 it. I think that, certainly in my view, was a useful 12 strategy. 13 "Question: Okay. Had you worked with him before? 14 "Answer: Yes. 15 "Question: We have had the advantage of seeing 16 Mr Colville Stewart give evidence and, if I may say so, 17 the impression being given is that Mr McBurney is very 18 old school. Colville Stewart, new broom, very aware of 19 new policing techniques, investigative techniques and so 20 on, and making thorough records of everything. Would 21 that be a fair impression of the distinction between 22 those two? 23 "Answer: Yes. I think that is fair. Mr McBurney 24 was a very hardworking detective. He was a detective's 25 detective. You know, he headed up a region through many 59 1 years which encountered many, many murders and he headed 2 up a lot of very serious criminal investigations and he 3 brought a lot of people to book. 4 "So in terms of his commitment to work, I would have 5 no doubt about that. 6 "Question: Or his effectiveness? 7 "Answer: Absolutely. At times, maybe he took too 8 much on and he would have liked to have done things 9 himself." 10 He further stated at 124. 11 "Question: Now, Mr Underwood has already said to 12 you that it is important that the Panel get an 13 impression from people as to what they think about some 14 of the issues that this Panel has to decide. What was 15 your impression, between June 2000 and December 2000, as 16 to whether Mr McBurney was determined to nail 17 Mr Atkinson? What was your impression about that? 18 "Answer: I was under no doubt at all that 19 Mr McBurney was absolutely committed to getting 20 Atkinson. I have no doubt at all that's what he wanted 21 to do from the beginning, and when I was brought into 22 the Inquiry into 2000, he still had that same level of 23 commitment." 24 So that's the evidence you have about the character 25 of Mr McBurney, and it is all the more important, sir, 60 1 I just say in conclusion, when, unfortunately, of 2 course, you have not had the opportunity of seeing and 3 hearing and weighing up what Mr McBurney would say to 4 you in his evidence. That makes what other people say 5 about him, in our submission, all the more important. 6 In our submission, one would need to have very 7 cogent evidence, and I am not going to start quoting 8 I think it is the Doherty case as to the nature of the 9 allegations and the cogency of the evidence, but in our 10 submission one would need to have very cogent evidence 11 before one would draw any adverse conclusion concerning 12 the actions and investigations that Mr McBurney carried 13 out. 14 Those are our submissions 15 THE CHAIRMAN: Can you just deal with this point finally? 16 As we have just seen, K was appointed to the 17 investigation before McBurney's retirement. 18 MR ADAIR: That's right. 19 THE CHAIRMAN: Before his removal from the Inquiry, K told 20 us that he was put in charge of the tipping-off 21 investigation, did he not? 22 MR ADAIR: Yes. 23 THE CHAIRMAN: Now, do you want to say anything about 24 whether assigning that task to him was consistent or 25 inconsistent with the proposition that McBurney was 61 1 intent on stifling that investigation or was it neutral 2 in that respect? 3 MR ADAIR: It was absolutely inconsistent. If McBurney was 4 intent on stifling this investigation, why would he put 5 K in charge of it, one rhetorically asks? 6 THE CHAIRMAN: Thank you. 7 MR ADAIR: Thank you, sir. 8 MR McGUINNESS: Sir, I think it now falls on me. I will be 9 about an hour, sir. I don't know whether the Panel want 10 to take a quick break and allow me to run straight 11 through, or whether you prefer that I commence now? 12 THE CHAIRMAN: We will begin. 13 MR McGUINNESS: Could I take Mr Adair's lectern? 14 THE CHAIRMAN: You will bear in mind, I am sure, 15 Mr McGuinness, we have your written submissions. There 16 is no need to repeat them. Things you need to add, of 17 course you will. 18 Closing submissions by MR McGUINNESS 19 MR McGUINNESS: I am sure I will be guided by you, sir, if 20 you feel I am repeating my written submissions. 21 I had initially intended to be brief, but as matters 22 have transpired over the last number of days, I can't 23 now be as brief as I had initially intended to be. 24 I intend presenting my closing, sir, to deal with 25 the three chapters that appear to be relevant to 62 1 Sir Ronnie Flanagan and to which we were directed. That 2 is chapters 14-16. However, prior to addressing those 3 three particular chapters, I think it is important to 4 remind the Inquiry of the status of Sir Ronnie Flanagan 5 within these proceedings. 6 You will all be well aware he is a witness to the 7 Inquiry rather than a full participant. His 8 participation, and consequently that of his legal 9 representatives, have been, by necessity, given the 10 Inquiry's view on Sir Ronnie Flanagan's involvement, 11 limited. That has been set out in my written 12 submissions, but I do think it bears reiteration today, 13 sir 14 THE CHAIRMAN: I think we have it well in mind. We read it 15 quite a number of times in your submissions. 16 MR McGUINNESS: We say, sir, that it is not our intention to 17 deal, therefore, with anything other than his individual 18 role. We don't seek to comment on matters which are 19 outside of our participation. In particular, I suggest, 20 sir, that you have had the opportunity now to see and 21 hear Sir Ronnie Flanagan give evidence on two occasions. 22 I take this opportunity to thank the Inquiry for 23 allowing him to meet and address the very serious 24 allegations that have been made, we say, without 25 foundation and in an unacceptable manner, but we thank 63 1 the Inquiry for allowing him to meet those fairly. 2 I do wish to reiterate the danger of hindsight. 3 I think it is particularly important, when one views the 4 role of Sir Ronnie Flanagan in this Inquiry. It is 5 easy, sir, perhaps against the background of a sterile 6 chambers and 12 years later, to look at matters 7 retrospectively and see things as obvious without taking 8 account of context and the voluminous issues being dealt 9 with by Sir Ronnie Flanagan as Chief Constable in the 10 context of Northern Ireland on a daily basis at that 11 time. 12 We say that when assessing Sir Ronnie Flanagan's 13 actions, insofar as they are relevant to the terms of 14 reference, firstly, I adopt what Mr Adair has said about 15 the fact you must find an act or omission is wrongful, 16 but I go on to say you must assess his actions not -- 17 again this is trampling over ground that has very 18 recently been trampled, but I say you must look at 19 what -- not at what you would have done, sir, in the 20 particular circumstances he met, but, rather, whether 21 his actions were within the band of reasonable actions 22 open to a Chief Constable. 23 I have contextualised, sir, in my written 24 submissions, the difficulties facing Sir Ronnie Flanagan 25 as Chief Constable. Hopefully, it is the last time 64 1 I repeat something that you may have read on a number of 2 occasions in the written submissions. 3 We say, as Chief Constable, he was Chief Constable 4 of a force against which there was a very specific risk 5 of terrorist threat. The politicisation of the police 6 force meant that his role as Chief Constable in 7 Northern Ireland was perhaps unique in British policing 8 terms at the time. The events that surrounded the 9 unhappy death of Mr Hamill, we point to the number of 10 other significant national events and, by "national" 11 I refer to province-wide, national events that were 12 going on. 13 There were two elections in May 1997. The IRA were 14 no longer on ceasefire. We have evidence from 15 Professor McEvoy and from Sir Ronnie Flanagan as to the 16 difficulties that had occurred following the reversal of 17 the decision in 1996 to allow the marches down the 18 Drumcree Road, the effect that had on the confidence of 19 one or both communities and the RUC, the fact that in 20 May 1997 this loomed large, sir, and with the attendant 21 difficulty of bringing the province again to 22 a standstill, as it had in 1996, and in July 1997, as 23 you will have heard from Mr Adair, two police officers 24 were murdered whilst walking the beat in Lurgan, that 25 being matters of fact which DCS McBurney was called upon 65 1 to deal with. 2 That context, and the almost unique position, I say, 3 in my respectful submission of the chief constable of 4 Northern Ireland at that time in those terms is perhaps 5 the reason why Mr McGrory accepts that and accepted this 6 when he cross-examined Sir Ronnie Flanagan, that 7 Sir Ronnie is a policeman of unparalleled experience, 8 and I submit, sir, that Sir Ronnie's expertise should be 9 taken into account when assessing his actions and his 10 particular observations as to the role of a chief police 11 officer. 12 Now, to turn to chapter 14 first, sir, that's the 13 tipping-off allegation, if page [1048] of the Inquiry 14 submission might be brought up, I say -- and if 15 paragraph 2.18 might be highlighted, I say there is 16 an error here and a comment has been inserted 17 inappropriately. I think Mr Underwood may agree that 18 that's, in fact, the case. The comment being: 19 "This speaks to the fear of the unwinding of the 20 Hobson prosecution if Reserve Constable Atkinson were 21 successfully prosecuted." 22 This deals, sir, with an NIO document which suggests 23 that the chief constable and Attorney General were 24 sensitive to what they saw as interference. I say that 25 comment cannot be appropriately attributed to the 66 1 document, because if one looks at the document at 2 [39453] -- 3 MR UNDERWOOD: If it helps, I should make clear the 4 parenthesised words there were never intended to be 5 published. They were a reference in there for the 6 purposes of my team to cross-reference documents and 7 I accept what my friend says on this. 8 MR McGUINNESS: Perhaps if we could turn to the next 9 page and perhaps if we could go on, [39455], and if 10 paragraph 8 might be highlighted, one sees the 11 paragraph in its totality: 12 "As the Secretary of State has told the Hamill 13 family, she has no role in the prosecution process or 14 indeed in consideration of the disciplinary aspects of 15 the case. It would not appropriate for her to be 16 involved in these. The Secretary of State should note 17 that the chief constable and Attorney and DPP are very 18 sensitive to what they would see as any interference." 19 I say, sir, that speaks to interference in the role 20 of the prosecution process or, indeed, disciplinary 21 aspects of the case. Nowhere in this document is there 22 any reference to Reserve Constable Atkinson. 23 Why this is important is because British Irish 24 Rights Watch refer to this in their submission and use 25 this as corroborative evidence to suggest that that was, 67 1 in fact, the chief constable's intention and that, in 2 fact, and he was sensitive to the suggestion that any 3 interference might unwind the Hobson prosecution and 4 unveil, to paraphrase it, the identity of Reserve 5 Constable Atkinson. 6 Whilst I will deal with this more extensively 7 whenever I deal with the chapter 16 collusion, I say 8 there is simply no evidence from which an inference 9 might be drawn that there was any desire to repress the 10 allegation, that's the tipping-off allegation. I take 11 this opportunity to remind you of the evidence. 12 We say that the first time Sir Ronnie Flanagan was 13 made aware of the tipping-off allegation is 14 12th May 1997. We say that the context of that was that 15 he was made aware of the allegation by ACC Hall, but 16 that, in doing so, ACC Hall indicated that both the ICPC 17 were investigating it and that it was being dealt with 18 by Complaints and Discipline. 19 If Day 55, page 32 might be brought up, this is the 20 evidence of ACC Hall, at line 21: 21 "Answer: Well, I can't give you chapter and verse 22 12 years later out of a plethora of meetings, but they 23 would have held the same -- those officers would have 24 held views similar to my own, that anything touching 25 upon the integrity of a police officer or misbehaviour 68 1 or alleged criminal conduct could not be tolerated and 2 required rigorous investigation. 3 "They would have been satisfied, as was I, that the 4 matter was in the hands of the ICPC, the Independent 5 Commission for Police Complaints as part of the overall 6 supervision and investigation into the circumstances 7 touching upon the death of the late Robert Hamill ..." 8 So I say, sir, that the circumstances in which 9 Sir Ronnie Flanagan first became aware of this was on 10 12th May. 11 It has been suggested that it is -- I think the term 12 used was it is remarkable, or you might think it is 13 remarkable, that he was not told on 10th May in the 14 conversation between himself and Maynard McBurney of the 15 facts of the tipping-off allegation, but at this stage 16 it may be useful, sir, to remind you what Mr McBurney, 17 in fact, said about that conversation. 18 In his statement -- I will not take you to his 19 statement, because I intend to take you to the 20 interview, which is perhaps more comprehensive, he 21 indicates he can't be sure exactly what he told the 22 chief constable on the telephone call. However, he 23 would have been sure that the chief constable would have 24 been made aware of the allegation very quickly 25 afterwards. 69 1 Now, if one looks at the interview, it is the first 2 interview of Maynard McBurney. It is at page [114]. 3 That's 4th May 2006 interview: one will see, sir -- you 4 will see, sir, that Mr McBurney indicates in the 5 substantive paragraph that one of the things he does -- 6 he is talking through the events of 9th and 10th May. 7 He indicates that he was updating the chief constable: 8 "Stephens: Right, we'll stop there. You updated 9 the chief constable personally on that? 10 "McBurney: Yes. 11 "Stephens: Was that the normal way you dealt with 12 things? 13 "McBurney: No. 14 "Stephens: Right. 15 "McBurney: When I say I updated with the chief 16 constable, the chief constable rang the office and asked 17 for me, wanting to know what was going on, and so the 18 present state of the Inquiry. 19 "Stephens: So the chief had that hands-on approach 20 to it as well? 21 "McBurney: Yes. After that, ACC South updated 22 continuously -- this is all the one way now. 23 "Stephens: Right. So on 10th May then -- I just 24 want to clarify this situation -- on 10th May, the chief 25 constable was aware that you had evidence or you had a 70 1 statement about Atkinson, the Reserve Constable? 2 "McBurney: Let me finish this first. Continuous 3 liaison with Detective Chief ... again, in the 4 afternoon, updating the chief constable; again, in the 5 afternoon, updating ACC South and then the discussions 6 with the detective (several inaudible words), oh, yes. 7 That must be the notes there that you referred to. 8 Discussions with the detective inspector regarding 9 further arrests. The question you asked me, was the 10 chief constable and ACC aware of Atkinson? 11 "Stephens: Yes, and I want to know what advice you 12 got from them, really. 13 "McBurney: Oh. The ... I'm not sure just exactly 14 what I would have told ... because I was happy enough 15 with what I was doing and the course I was taking. 16 "Stephens: The reason I asked the question about 17 the ACC, and the chief and that sort of thing; 18 obviously, you'd given them a brief; the chief has 19 spoken to you and you say, 'What's going on? Tell me 20 what's happening?' 21 "McBurney: Yes. 22 "Stephens: Because of the ... because he's 23 obviously got the political overtones of that coming in 24 from [blank] who'd made the complaint, presumably. 25 "McBurney: Yes. 71 1 "Stephens: And you give him a brief and I just 2 wanted to know really what his thoughts were. If -- 3 "McBurney: He was happy to wait for my views. 4 "Stephens: Right. But as such he would have been 5 told everything that you had at that stage, whether it 6 was the murder, the complaint that the ICPC were dealing 7 with, and the issues regarding the Reserve Constable. 8 "McBurney: I cannot be certain about that. We were 9 ... I was in possession of all that evidence -- or not 10 evidence -- but that knowledge at the time." 11 If I stop there, sir, that may well be the evidence 12 of Tracey Clarke or the knowledge of the statement of 13 Tracey Clarke, but not the evidence of the telephone 14 records. He goes on: 15 "I cannot be certain exactly what I said to him, or, 16 indeed, the ACC. 17 "Stephens: But you wouldn't have kept that sort of 18 thing from the Chief Constable, presumably. 19 "McBurney: Um ... he may just have asked about 20 arrests -- how many have we arrested? What were the 21 chances of success? Advise me when you have him charged 22 or if you can charge him or what the score is." 23 So what I say that suggests, sir, is that these are 24 all reasons why it may not be remarkable that 25 Mr McBurney did not tell the Chief Constable on 10th May 72 1 about the Tracey Clarke statement. 2 Now, Sir Ronnie Flanagan's evidence is that he 3 doesn't have a recollection of those telephone 4 conversations, but he is happy they occurred, but what 5 I say, sir -- so I don't put a positive case and say it 6 was not said to him, but what I say, sir, is that the 7 evidence of Mr McBurney is that it may not have been, 8 and in answer to the suggestion that it is remarkable 9 that it may not have been, the answer is that there were 10 a number of other issues that the Chief Constable may 11 have been concerned about at that time. 12 I have indicated, sir, that the matter was brought 13 to his attention on 12th May. The matter next 14 appears -- the direct evidence next appears that the 15 tipping-off allegation comes to his attention in 16 December 1997. That's regarding the reply to the 17 Secretary of State. I will deal with that when I deal 18 with the collusion issues. 19 As you all know, the final time that the matter 20 comes before -- the direct evidence is that the matter 21 comes before Sir Ronnie is in June 2000 and from there 22 on. 23 I submit, sir, that Sir Ronnie's -- that there is 24 nothing in any of these actions that suggests 25 an intention to repress evidence, that they reflect the 73 1 role of a Chief Constable and that that role is not one 2 of direct involvement in an investigation. It is not 3 a role to direct investigative strategy. It is, as 4 Sir Ronnie indicated yesterday, and I paraphrase him, 5 his role is not to micromanage an investigation, rather, 6 it is to ensure that the resources are available to 7 ensure that the investigation can progress 8 appropriately. 9 I say, sir, that it is significant that 10 Sir Ronnie Flanagan was not on notice during this 11 period -- there is no evidence that he was on notice, 12 that there were any issues with the investigation of the 13 tipping-off allegation. He was not on notice that were 14 any issues with the supervision of the ICPC -- the 15 supervision of the investigation by the ICPC. 16 In fact, when one looks at the second statement of 17 Mr Paul Donnelly, who was the Chairman of the ICPC, he 18 indicates: 19 "It was reasonable on the senior police officer's 20 behalf to have expected the linking of the Atkinson 21 allegation because the practice was quite normal." 22 I say this just fatally undermines the BIRW 23 suggestion that it was scandalous that no senior 24 officers sought to check that the ICPC were 25 investigating the matter, effectively because, sir, we 74 1 say the matter had been brought to Sir Ronnie's 2 attention. It had been brought in circumstances that he 3 had been told the ICPC were looking after the matter, 4 that Complaints and Discipline were investigating, and 5 that, I say, must be enough to satisfy a reasonable 6 chief constable that the investigation has been properly 7 investigated at that stage and the matter has been 8 appropriately dealt with. 9 BIRW go on, in my respectful submission, to misstate 10 the evidence when they refer to Sir Ronnie Flanagan, 11 when they refer to the letter from the police Ombudsman 12 at [14380]. They suggest that the Ombudsman openly 13 accused the RUC of seeking to stave off a public Inquiry 14 into the Robert Hamill case. However, that's not 15 correct, because if one looks at the documentation, what 16 Mr Mahaffey is, in fact, doing is he is asking 17 Sir Ronnie: 18 "I would be grateful if you could throw any light on 19 these matters in particular: 20 "1. Are you aware as to why no action was taken by 21 Mr McBurney relating these alibi witnesses ... 22 "2. Whether there were any other motivating factors 23 relating to the investigation of enquiries in 24 June 2000." 25 BIRW suggest this letter is a criticism; the purpose 75 1 of this letter is to criticise Sir Ronnie Flanagan and 2 his actions, whereas, in fact, it is nothing more than 3 a request, sir. So I say their evidence in that and 4 their written submission is inaccurate and is 5 inappropriate. 6 They also suggest in chapter 14, sir, that 7 Sir Ronnie would not take ownership of the Andrea McKee 8 incident that we have referred to latterly, if he 9 didn't, in fact, do it. However, we say that they 10 misunderstood the evidence and, in effect, my 11 submissions are in concurrence with what Mr Adair says, 12 in that we say that Sir Ronnie did not take 13 responsibility for the re-investigation. Rather, his 14 evidence is that he encouraged Mr McBurney to take steps 15 to try to prosecute a criminal within the ranks of the 16 RUC. A matter that, for example, Mr Langdon suggests 17 was Sir Ronnie's emphasised intention at all stages. 18 That can be seen for your note at Day 67, pages 32-33. 19 Sir Ronnie goes further to indicate that his course 20 of action was not resisted by DCS McBurney in any way. 21 Now, if I turn, sir, to the chapter dealing with the 22 ICPC, it is not the purpose of our submission to 23 criticise the ICPC or seek the Inquiry to make any 24 specific finding against them. Rather, to address what 25 is, in fact, the only potential criticism or inference 76 1 which has been identified within the Inquiry written 2 documentation. 3 As regards the ICPC, we say that the evidence 4 clearly establishes a number of important facts. 5 Firstly, we say it is important and the evidence 6 establishes that Sir Ronnie Flanagan instituted 7 a policy, whenever he became chief constable of the RUC, 8 of referring all public interest matters to the ICPC 9 under Article 8. This, we say, is corroborated by 10 Mr Paul Donnelly in his evidence, who, in fact, draws 11 a distinction between Sir Ronnie's view and his actions 12 and those of his predecessor in the post. He indicates 13 that Sir Ronnie was, on every occasion, prepared to 14 refer an Article 8 matter. 15 We say this is proactive and reflects, in our 16 submission, his desire for a rigorous and transparent 17 investigation. 18 In this case, sir, we suggest, and it has been 19 suggested in our written submissions, and I will not go 20 through why we suggest there was an Article 8 referral 21 under Article 8.1, but, even if there was not, sir, we 22 suggest that the practice of the ICPC was such that it 23 would have been reasonable for Sir Ronnie Flanagan to 24 assume that they were, in fact, investigating the 25 matters. 77 1 We say that in this submission the evidence of 2 Mr Donnelly is critical, because it establishes that, 3 once the allegation was established, he suggests it 4 should have come within the ambit of the complaint 5 investigation and that it was reasonable on the senior 6 officer's behalf to have assumed this linking, as it was 7 normal practice. That's found in paragraph 2 of his 8 second statement, which, unfortunately, I don't have 9 a reference number for, but for your reference that can 10 be found there. 11 So in effect, sir, I am saying that, even if the 12 ICPC were precluded in law from supervising the 13 tipping-off allegation, even if it were not right, that 14 there was an Article 8 referral, if you find as a matter 15 of law, sir, it was an Article 7 referral and the ICPC 16 could not have supervised the matter, we say that the 17 evidence of Mr Donnelly suggests a clear practice and 18 procedure on behalf of the ICPC. This practice and 19 procedure was such that it was reasonable for the senior 20 officers to conclude and to come to the conclusion that 21 the matter would be drawn in. 22 In one sense, this expectation was in the matter of 23 a legitimate expectation, whether legitimate or not, 24 because obviously one cannot have a legitimate 25 expectation of an unlawful act. 78 1 THE CHAIRMAN: An expectation cannot be legitimate in public 2 law terms unless it is a lawful expectation? 3 MR McGUINNESS: That's exactly what I accept, sir, but when 4 everyone is looking at the actions of the senior 5 officers and indicating, "Was it reasonable for them to 6 have had that expectation", the practice and procedure 7 was such at the time, sir, that we say that it was 8 reasonable for them to have had that expectation, and 9 the corollary of that being, therefore, that it would 10 not have been reasonable for Sir Ronnie Flanagan 11 personally to have taken it upon himself to ensure that 12 there ought -- that the ICPC were, in fact, supervising 13 the investigation, when their practice was the evidence 14 is to supervise such investigations. 15 Whenever one adds that to the fact that there is no 16 suggestion that Sir Ronnie was ever on any notice that 17 the ICPC were not, in fact, investigating this, we say 18 it is inconceivable that a chief constable would, or 19 should, second guess or verify the information being 20 given to him by his senior officers, that information 21 being given, we say, by ACC Hall on 12th May. 22 The representatives on behalf of Mr Mullan sought 23 to suggest in their written submissions that there is no 24 reason why Sir Ronnie Flanagan believed that the ICPC 25 were investigating the Atkinson allegations. We say 79 1 this is erroneous. Whilst they could have asked that 2 question of him themselves, we say it is clear from 3 Sir Ronnie's oral evidence that it is ACC Hall's 4 briefing that the ICPC were supervising the 5 investigation along with his policy of Article 8 6 referral, which deals with that point. 7 They go further and suggest that Mr Atkinson did not 8 see any of the documents substantiating an Article 8 9 referral. However, they, in our respectful submission, 10 sir, do not address -- Mr Mullan does not appear to 11 address the document at [15273]. That's the document 12 that refers to the previous -- where there is a tick 13 indicating there had been a previous referral. We say 14 that Mr Mullan's lack of awareness, for example, of 15 a conversation between Mr Murnaghan and ACC Hall does 16 not weaken the evidence that that conversation, in fact, 17 took place 18 THE CHAIRMAN: Well, the fact seems to be that both the ICPC 19 and the RUC did not properly understand the provisions 20 of Article 8. Where the fault lies precisely in each of 21 those organisations we perhaps don't need to consider. 22 MR McGUINNESS: That may be correct, sir. 23 BIRW suggest in paragraph 15, sir, that given the 24 ICPC's lack of independence and rigour, that the chief 25 constable should have used his powers to appoint 80 1 an officer from an outside force to investigate matters. 2 At this stage, sir, I think it bears reiteration 3 that the ICPC had greater powers than their equivalent 4 in England and Wales. If you remember the evidence, 5 they had the power to direct as well as supervise. 6 Whilst, when the Police Ombudsman was introduced, it 7 was, and still is, I understand, at the forefront of 8 thinking and procedure in police complaints, that it was 9 replaced does not mean that the ICPC were, therefore, 10 totally ineffective. 11 In one sense, one might say the ICPC was the only 12 show in town. The chief constable was constitutionally 13 obliged to engage with the ICPC because that was the 14 manner in which the Executive had decided that police 15 complaints were going to be pursued. 16 Now, if one turns -- if I turn, sir, to chapter 16, 17 that's titled "Collusion and Neglect". Of course, 18 collusion is not mentioned in the terms of reference, in 19 my respectful submission. However, as I have already 20 said, I adopt what Mr Adair has indicated as regards 21 a definition of "wrongful": unfair, unlawful, illegal. 22 I have, for my sins, gone to look to see what the Oxford 23 English dictionary says about collusion. As you will 24 know, sir, it indicates that collusion is a secret 25 understanding for a fraudulent purpose. 81 1 It is my submission, clearly, that collusion must 2 involve an intentional act or an intentional omission, 3 but in any event, it must intend to have a collusive 4 purpose, unlike, perhaps, discrimination, which can be 5 indirect and unwitting. 6 THE CHAIRMAN: Collusion would obviously come under the 7 umbrella of wrongful, wouldn't it? 8 MR McGUINNESS: Yes, I think that's probably correct, sir. 9 THE CHAIRMAN: Does more need to be said about that? 10 MR McGUINNESS: No, sir, I will move on. 11 At this stage, I have to deal with the suggestions 12 made by Mr McGrory last Monday and Tuesday. We say that 13 the manner in which the allegations were made was 14 something of an ambush. We say, if you look at his 15 written submissions at paragraph 17, which is at 16 page [1278], three scenarios are suggested. In those 17 scenarios -- if that could be brought up, [1278] -- at 18 paragraph 17 he indicates: 19 "If the Panel is persuaded that DCS McBurney was 20 guilty of the deliberate protection of Reserve 21 Constable Atkinson, then it must consider three 22 possibilities that directly concern the chief constable: 23 either he (i) acted alone in defiance of his superiors", 24 that's Mr McBurney, "(ii) he felt encouraged by their 25 apparent disinterest to behave in the way he did", so 82 1 again he is referring to the disinterest of the 2 superiors, "or (iii) he was acting on direct 3 instructions." 4 Having referred in the two preceding paragraphs to 5 "superiors", plural, the natural reading of that was 6 that he was acting on the direct instructions of his 7 superiors. 8 Now at no stage, sir, was the allegation stitched 9 together to portray an allegation in the written 10 submissions, we say, against Sir Ronnie Flanagan alone. 11 However, we now know from his oral submissions on Day 71 12 he indicates the nod could only have come from 13 Sir Ronnie Flanagan. 14 We say you might be rightly concerned that this is 15 a most serious allegation to make. To do so at this 16 stage in the proceedings is procedurally unfair and 17 might be regarded as outrageous. Lest there be any 18 doubt, it is clear, sir, that those are refuted in their 19 entirety. 20 Mr McGrory asks you to draw inferences and attach 21 them, we say, to no direct evidence. 22 THE CHAIRMAN: Mr McGuinness, it may have been unfortunate 23 that matters were not put to Sir Ronnie which should 24 have been, but in the event, Sir Ronnie has suffered no 25 unfairness, because arrangements were made that he could 83 1 give evidence again and deal with these matters. 2 MR McGUINNESS: I say that's not right, sir. I say where 3 the unfairness against Sir Ronnie may attract is that, 4 given Sir Ronnie Flanagan has had very limited 5 participation in this Inquiry, given the fact that the 6 allegation that is now made, albeit it is made in 7 language that does not even meet the standard of 8 proof -- it is allegations that may be, and there is use 9 of the word "speculate" -- we say it is unacceptable, 10 because essentially now every action of Mr McBurney, if 11 Mr McGrory's submission is to be treated appropriately, 12 must be looked at through the prism of whether 13 Sir Ronnie Flanagan had any guiding hand in that action. 14 Now, why I say it is then potentially unfair, 15 despite the fact that Sir Ronnie Flanagan has had the 16 opportunity to deny it and to absolutely refute those 17 allegations, is that one might have expected, sir, at 18 that stage -- had this matter been raised at the start, 19 undoubtedly Sir Ronnie Flanagan would have been made 20 a full participant, or at the very least -- 21 THE CHAIRMAN: Raised at the start by whom? 22 MR McGUINNESS: By Mr McGrory. 23 THE CHAIRMAN: Forgive me. Mr Underwood opened the various 24 matters. Matters then emerged as there was 25 cross-examination about them. There was no obligation 84 1 on parties to say, "Well, I want to make an allegation 2 about such and such at the outset". Let's get on to the 3 next point, shall we? 4 MR McGUINNESS: Perhaps I will put in in a different way, 5 sir. We have not had the opportunity to attend the 6 evidence that was given about Mr McBurney and to 7 consider all the documentation that refers to 8 Mr McBurney and to cross-examine, with particular 9 reference to Sir Ronnie Flanagan, any of those 10 witnesses. That's where I say, sir, there may be 11 potential unfairness. I do not put it any higher, but 12 I say if it is right or if the suggestion is to be 13 treated appropriately, that Sir Ronnie Flanagan had 14 a guiding hand, then he deserves not only to answer that 15 but to put questions to any witnesses that are relevant 16 and have access to that information. 17 THE CHAIRMAN: Yes. 18 MR McGUINNESS: We say that the allegations made on behalf 19 of the family are inherently contradictory, incorrect 20 and without any evidential basis, although we don't say 21 this makes it any more acceptable to raise them at this 22 very late stage. We say the contradiction can most 23 clearly be seen in the approach to DCS McBurney who is 24 criticised as guilty of deliberate protection of Reserve 25 Constable Atkinson in the written and oral closings. 85 1 However -- Mr Adair touched on this -- as Mr McGrory 2 was unable to explain why Mr McBurney would tell so many 3 people about the tipping-off allegation, he has sought 4 to rehabilitate Mr McBurney to an extent to explain his 5 actions that may have set out with the most upright 6 intention, but that the unforeseeable decision of the 7 ICPC allowed him to subvert the investigation. 8 I think that's the submission Mr McGrory was 9 effectively making. He was saying, if he started off 10 with an honest and upright intention -- he was presented 11 with an opportunity. This opportunity was the ICPC 12 indicating they were not going to supervise the 13 tipping-off. I say, sir, that would have been 14 unforeseeable whenever he was first appointed to the 15 investigation, and, correspondingly, that would have 16 been unforeseeable to any guiding hand, if there was 17 a guiding hand, and if that guiding hand had been acting 18 from 10th May, the guiding hand would not have known, 19 nor would Mr McBurney have known, that the ICPC would 20 have taken that course. 21 We say that this is one example of the twists and 22 turns that are required to try to make the evidence fit 23 the theory, because that's what we say effectively 24 Mr McGrory's submissions amount to. 25 We don't accept the proposition that 86 1 Sir Ronnie Flanagan's reputation has in any way been 2 damaged by his evidence. Rather, we suggest that his 3 character has expressly been put into question by 4 Mr McGrory and that correspondingly you ought to take 5 into account his good character, sir. 6 We say that -- it is my submission, sir, that 7 Mr McGrory's submissions take what are essentially 8 a series of unremarkable pieces of evidence and use them 9 to suggest the most extreme and inherently improbable 10 inferences, that -- whenever he applies this to a lack 11 of any direct evidence and attempts to infer a sinister 12 intent. 13 What I want to do, sir, as a result of that, is to 14 address the evidence one final time. I say that it is 15 clear the evidence going to Sir Ronnie Flanagan was that 16 he kept himself up-to-date with all the pertinent 17 issues, not least via weekly briefings via regional 18 ACCs. This is against the background of his being head 19 of one of the largest police forces in the world and 20 against a background of terrorism and significant 21 political tension and unrest. 22 We say it is not correct that Sir Ronnie Flanagan 23 has been less than candid with the Inquiry, but what we 24 do ask you to do is take cognisance that 25 Sir Ronnie Flanagan, like all of the witnesses to the 87 1 Inquiry, are given their evidence at a 12-year remove. 2 To some witnesses the events -- the unhappy events of 3 Robert Hamill's death may very well have been the most 4 significant events in their lives. To other witnesses 5 to the Inquiry the unhappy events of Robert Hamill's 6 death may be one of a number of significant and serious 7 incidents, and I ask you to take into account, sir, the 8 fact that that's exactly the position we say with 9 Sir Ronnie Flanagan. This was undoubtedly a serious, 10 significant event, but in his case it was one of 11 a number of significant, serious events. 12 Much of the evidence has been informed by the 13 existence of contemporaneous documentation, rather than 14 first-hand recollection. We say that documentation, 15 whilst it is obviously of evidential assistance, ought 16 not to be, and I am confident you will not elevate it to 17 any unimpeachable status. 18 It is, sir, in the human psyche and character to err 19 and make mistakes, and that must not be forgotten or 20 cast aside whenever one weighs the evidence. The lack 21 of candour appears to attract, in my respectful 22 submission, or the submission that there is a lack of 23 candour attracts to two documents. Those two documents 24 are the document of Sir xxxxxxxxx, which is the 25 meeting of 9th June, and the memorandum relating to the 88 1 meeting with Mr Anthony Langdon. 2 I have a number of points about both documents. It 3 must be remembered that neither of these documents 4 purport to be verbatim notes of the conversation. They 5 are nothing more than memoranda. Mr Langdon, in fact, 6 accepts that he was paraphrasing Sir Ronnie Flanagan on 7 occasion. That's found in his evidence at Day -- 8 I apologise, sir. It is Day 67, page 26. If that could 9 be brought up. That's 7-10. 10 "Question: Now, am I right to say that these 11 comments are paraphrasing what Sir Ronnie has said? 12 They are not in inverted commas and, for example -- 13 "Answer: No. Absolutely." 14 The second point I make about the documents is they 15 are not contemporaneous notes, both documents having 16 been made some time later. 17 THE CHAIRMAN: You made that point already and we have it. 18 Yes? 19 MR McGUINNESS: Both documents contain subjective 20 impressions and evaluations. So, for example, the 21 reference in the document, Sir xxxxxxxxxx's memo, 22 that suggests Sir Ronnie Flanagan, which is denied, 23 would have dismissed Reserve Constable Atkinson at the 24 Permanent Undersecretary's request, that's paraphrased 25 by the word "implied". So essentially what we have is 89 1 Sir xxxxxxlooking at a nuance and obtaining this 2 objective impression. 3 I don't submit, sir, that either of the authors of 4 those documents has any improper motivation for 5 recording the impressions as they did. 6 That Mr Langdon, who gave evidence, doesn't have 7 a complete recollection of the meeting in my respectful 8 submission is not surprising, given the ten-year remove, 9 and, therefore, we are left with the accuracy of his 10 notes. That, in my respectful submission, was the tenet 11 of the evidence of Mr Langdon, that he had no reason to 12 dispute the accuracy of his notes. 13 He appears to have had two recollections. The first 14 recollection is to do with the cradling movement, which 15 I deal with in due course, and I don't say is 16 particularly germane. The second recollection is 17 effectively Sir Ronnie Flanagan was indicating that he 18 felt his force was being unfairly pilloried. Aside from 19 that Mr Langdon said before you, "I have no reason to 20 doubt the accuracy of my notes", except I say what you 21 must take into account is that the notes he accepts are 22 inaccurate in two places. So if his evidence is, 23 "I have no reason to doubt the accuracy of my note", you 24 must take into account the fact that he then accepts 25 that his note is not completely accurate. 90 1 The two places I suggest the note is inaccurate is 2 he accepts -- again it is at day 67, page 31. Firstly, 3 you will remember, sir, -- I have brought myself on 4 slightly further. I will deal with this in just one 5 moment. You will remember, sir, the difference between 6 the word in inverted commas "gem" that Mr Langdon refers 7 to. Sir Ronnie indicates he would not use a word like 8 "gem". He would use "gen". Mr Langdon accepted that. 9 Secondly, at paragraph 7, which Mr Adair had 10 referred you to earlier, there is a comment in brackets, 11 and it is suggested to him at page 31, 19: 12 "Question: So is it likely that whenever you refer 13 to the chief constable suggesting that he had 'pushed 14 and pushed' the information -- the more recent 15 information which was provided to the Hamill family 16 I~understand would have been in and round 7th June the 17 decision was taken not to have a coroner's inquest. 18 Is it not, therefore, more likely that that's what 19 precipitated any reaction from the chief constable? 20 Answer: The comment in -- I haven't got it on the 21 screen -- "where the 'gem' comes, the comment that I make 22 in brackets there might very well have been inaccurate 23 and the information that he was talking about might have 24 been other information I agree, but it must have had 25 something to do with the action that the coroner took 91 1 when the inquest was aborted." 2 So that's how I read it all. 3 THE CHAIRMAN: Yes. 4 MR McGUINNESS: Effectively this is a note that is not 5 without inaccuracy. The comments in paragraph 3 of that 6 particular note, in particular the cradling action 7 issue, we say this is a subjective interpretation. It 8 is Mr Langdon's error and nuance; that what 9 Sir Ronnie Flanagan was, in fact, saying was that -- and 10 this is the evidence that he gave -- he was not saying 11 that it was a member of the family who had cradled the 12 head, but it could have been anyone at the scene. It 13 could have been a police officer or a civilian. 14 At the time he gave his evidence, sir, it is clear, 15 and this is found at Day 61, page 256, line 16, where he 16 says: 17 "I think that's a quite disgraceful record of the 18 conversation that we had. What was suggested to me -- 19 I remember being absolutely shocked when Robert Hamill 20 died, because my belief was that he was progressing well 21 and that he was not at risk of dying. In asking 22 people -- and I think it may well have been in 23 a conversation with Maynard McBurney -- there would have 24 been a general discussion that sometimes people, not 25 specifically the family, but even at the scene who would 92 1 cradle a person, but to suggest that Robert Hamill's 2 death was due to anything other than the beating he 3 received at the hand of his assailants is absolutely 4 disgraceful." 5 What he is saying there is this is an inappropriate 6 record and he is also indicating that the source of his 7 information as to any oxygen starvation or cradling 8 would have come from his discussions from others. 9 That is in effect what he said yesterday, sir, when 10 he gave evidence, and he indicated when it was put to 11 him again as regards the Langdon allegations that any 12 conversation he would have had would be in context of 13 others suggesting something. We say that his evidence 14 yesterday was on all fours with his evidence on 15 10th May, and that is clearly that any evidence he had 16 been given had been suggested to him by other people. 17 We say that the second recollection of Mr Langdon is 18 significant, that is, that Sir Ronnie's drift was that 19 his force was being unfairly pilloried. For your note 20 that's at Day 67, 22, 20-25. 21 I ask you to consider, sir, that it may well be that 22 this is the -- that it was clearly Sir Ronnie Flanagan's 23 intention -- it was clearly his expressed view at the 24 time that his force was being unfairly pilloried. 25 We ask you to consider whether it is possible or 93 1 likely that Mr Langdon took this expression "unfairly 2 pilloried" and attributed it to the actions of the 3 family, and that that's why he has quoted as he has at 4 paragraph 3, because what's clear from the memoranda of 5 both Sir xxxxxxxxx and Mr Langdon was Sir Ronnie 6 recognised Mr Hamill was, in fact, murdered. This was 7 a murder, despite medical queries or suggestions to the 8 contrary. 9 It is further clear he would not tolerate the 10 presence of such an officer guilty of such an offence 11 within his police force. At document [39693], if that 12 could be brought up, and if the initial paragraph might 13 be highlighted, Mr Langdon's record is: 14 "If there were anything in these suspicions, then he 15 would do whatever was necessary; he did not want people 16 like that within a million miles of his force, but 17 nothing had happened to disturb his view of the incident 18 itself ..." 19 So his Ronnie's view at that stage was his force was 20 being unfairly pilloried, but this was a murder and he 21 didn't want anyone who had truc with that within 22 a million miles of his force. I say this expressed 23 intent was inconsistent with any suggestion he may have 24 attempted to repress evidence in any way. 25 The effect of the later allegations appear to be 94 1 that they suggest that Sir Ronnie has not been candid in 2 these two documents. They go on to say that his failure 3 to recollection 12 years later the meeting on 12th May 4 allows you to draw, in my respectful submission, a most 5 absurd inference. In a sense, sir, you identified it in 6 that there is not any direct evidence. We don't accept 7 this is a lie, but if it were, to use that on its own 8 without any further evidence is nothing more than 9 speculation. It would be nothing more than an attempt 10 to build bricks out of straw where there is perhaps not 11 even straw present. 12 I say that other matters that must be taken into 13 account when you address Sir Ronnie's motivation and his 14 intentions are, firstly, that it is not improper for 15 a chief constable to be defensive of the reputation of 16 his organisation. There have been suggestions in some 17 of the memos that Sir Ronnie Flanagan was defensive. 18 I say it is not improper to be defensive. What's clear 19 in both the memos is that Sir Ronnie Flanagan was not 20 afraid of there being a public inquiry. So he was 21 defensive of his force, but he was not defensive in 22 a manner where he was saying, "There ought not and never 23 should be a public inquiry". 24 When alerted to any issue that required his input, 25 Sir Ronnie acted decisively, and his motivation, in my 95 1 submission, was clear at all times. That was to ensure 2 transparent, effective investigation which would enjoy 3 the confidence of both communities in Northern Ireland. 4 I say this can be seen in his actions in June 2000. 5 Having been contacted by DCS McBurney, he springs into 6 action, if I can use that terminology. He contacts the 7 then and now Director of Public Prosecutions and the 8 ICPC. 9 It is more clearly perhaps evidenced in the evidence 10 of Mr David Wood from the Police Ombudsman's 11 organisation, a man who indicates in his evidence that 12 he worked frequently with Sir Ronnie Flanagan and who 13 indicates that Sir Ronnie took the Ombudsman's concerns 14 seriously, was proactive -- and this is at page 16 of 15 Mr Woods' evidence; unfortunately I don't have the 16 day -- and could not have done more to meet them. This 17 is referring to replacing Mr McBurney with 18 Colville Stewart. 19 That action in itself, sir, is significant. The 20 fact that Sir Ronnie replaced Mr McBurney with 21 Colville Stewart within 24 hours of the Ombudsman 22 raising it as an issue I say is a significant, positive 23 action that portrays his motivation, because it is clear 24 that this is a matter that of itself might draw 25 criticism to the organisation, the fact that the Chief 96 1 Constable is replacing an investigating officer in what 2 is a controversial -- in what is a case that has 3 attracted a great deal of publicity. 4 The other issue that you may consider whenever you 5 consider the actions of Sir Ronnie in replacing 6 Mr McBurney so swiftly is that this is clearly not -- 7 this is not an action that would necessarily reflect 8 positively on Mr McBurney, and it may be portrayed in 9 certain sections as a slight or a negative slur. 10 If there were any suggestion that there was any 11 collusion between Sir Ronnie Flanagan and Mr McBurney, 12 well, this action of itself, the promptness and the 13 swiftness by which Sir Ronnie dealt with this in my 14 respectful submission can lead to no other inference 15 except that it was his intention at all times to ensure 16 an effective, transparent investigation, and that he had 17 no fear from replacing Mr McBurney, if there had been, 18 which we deny, any collusive purpose. 19 The evidence yesterday, sir, and the written 20 submissions from the BIRW refer to matters which are, in 21 my respectful submission, not evidence before this 22 Inquiry, and that's really the evidence about 23 Rosemary Nelson and the evidence about Colin Duffy. 24 British Irish Rights Watch raised the issue initially in 25 their written submissions about a dispute between 97 1 Sir Ronnie Flanagan and Mr Dato' Param Cumaraswamy, who 2 was at that time a UN rapporteur. 3 I say that's not evidence before this Inquiry and 4 ought not to be taken into account by the Inquiry, but 5 in any event that can be dealt with, in my respectful 6 submission, because the comment attributed to Sir Ronnie 7 by BIRW is inaccurate. The UN rapporteur removed the 8 comment from his report following Sir Ronnie having 9 denied it. The evidence heard by the Rosemary Nelson 10 Inquiry suggests that the comment in the draft report 11 was not supported by the contemporaneous note of the 12 meeting, and that, whatever comment was made, Sir Ronnie 13 was not even present in the room at the time. 14 So it is easy, in my respectful submission, in 15 a written submission to refer to a matter in another 16 inquiry and to suggest that it can be used to draw 17 a pejorative inference against someone, but really I ask 18 all of you to confine yourselves to the evidence which 19 is before the Inquiry. 20 Again I objected yesterday to some of the questions 21 being put to Sir Ronnie on the basis, amongst other 22 things, we had not been clearly alerted to them. 23 As regards Rosemary Nelson and Colin Duffy I don't 24 seek to rehearse all of the evidence in the 25 Rosemary Nelson Inquiry. That Rosemary Nelson was 98 1 a solicitor who acted for Republicans -- suspected 2 Republicans, that's well-known. That there were 3 a plethora of other solicitors in Northern Ireland who 4 acted for Republicans, that's also well-known. Saying 5 that does not take anyone any further. 6 Mr Duffy was charged initially with the murder of 7 two constables in July 2007 -- July 1997, which, of 8 course, is after this matter. The fact that 9 Rosemary Nelson wrote a letter of complaint on 10 7th May 1997, in my respectful submission her connection 11 with Colin Duffy doesn't take us any further as regards 12 any motivation 13 THE CHAIRMAN: Well, I see the time. We will adjourn now 14 until 2.05. 15 Mr McGuinness, you told us you would be about 16 an hour. I think you have had something like 17 three-quarters of an hour already. You are not even 18 halfway through your pages. 19 MR McGUINNESS: I am three-quarters of the way through, sir. 20 THE CHAIRMAN: You will be able to use the adjournment to 21 cut down what you have to say. Very well. 2.05. 22 (1.05 pm) 23 (The luncheon adjournment) 24 25 99 1 I N D E X 2 3 Closing submissions by MR ADAIR .................. 1 4 (cont.) 5 Closing submissions by MR McGUINNESS ............. 62 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 100