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Transcript (Afternoon Session)

Hearing: 8th December 2009, day 71

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Held at:


20-24 York Street



on Tuesday, 8th December 2009

commencing at 2.00 pm


Day 71
1 (2.00 pm)

2 THE CHAIRMAN: Mrs Winter, can you hear me?

3 MS WINTER: Yes, sir.

4 THE CHAIRMAN: You just take your own time. I gather you

5 want to read evidence to us. Is that right?

6 MS WINTER: Yes, sir.

7 THE CHAIRMAN: I gather you are not at the moment in the

8 best of health, and I am sorry to hear that. Please, if

9 you want a break, you will say so, won't you?

10 MS WINTER: Thank you.

11 THE CHAIRMAN: You go ahead at your own pace.

12 Closing submissions by MS JANE WINTER

13 MS WINTER: Thank you, sir.

14 British Irish Rights Watch and the Committee on the

15 Administration of Justice would like to thank the

16 Inquiry for this opportunity to make oral submissions.

17 As far as is humanly possible, we do not intend to

18 repeat our written closing submissions, and for that

19 reason, and for the sake of clarity, we confirm that we

20 have nothing to add to what we have said in writing in

21 relation to parts 1, 2, 3, 4, 7, 10, 11, 12, 13 and 17

22 of the Inquiry team's summary of evidence and issues.

23 What we intend in these oral submissions is to draw

24 together what we see as being the major issues for the

25 Inquiry's consideration and to show how they relate to

1 the Inquiry's terms of reference. We do not intend to

2 ask for any document or photograph to be displayed on

3 the screen, save that described as plan 4, which shows

4 the various positions of the police Land Rover. Where

5 we have referred to any written submissions, we will

6 give the page numbers where those submissions appear in

7 the consolidated closing submissions.

8 The first matter to be considered under the

9 Inquiry's terms of reference is whether any wrongful act

10 or omission on the part of the RUC facilitated

11 Robert Hamill's death and, if so, whether any such act

12 was intentional or negligent.

13 In this regard we intend to address aspects of

14 parts 5, 6 and 9 of the consolidated closing

15 submissions.

16 It seems to us that the period of time from the

17 events immediately preceding the attack on Robert Hamill

18 to the eventual arrival of the Scene of Crimes Officer

19 were what are known as the "golden hours", when the

20 murder might have been prevented, and, once the assault

21 had taken place, the RUC had the best opportunity to lay

22 the foundation for a successful investigation of the

23 crime.

24 With the Inquiry 's terms of reference in mind, we

25 intend to address you on the following issues in

1 relation to that period of golden hours:

2 Whether the RUC facilitated Robert Hamill's death or

3 could have done anything to prevent it;

4 The position of the Land Rover; and

5 Facts and omissions which may have obstructed the

6 investigation.

7 Under each of these headings we will also address

8 the issues of negligence and intention. It has not been

9 suggested that any officer was involved in the attack on

10 Robert Hamill which appears to have been as swift as it

11 was brutal, nor that any officer encouraged the

12 perpetrators.

13 How quickly the Land Rover crew descended from their

14 vehicle is in dispute, and, even if they had emerged at

15 once, it is doubtful they could have prevented the

16 attack, although it is possible that they might have

17 been able to intervene rapidly enough to prevent

18 Robert Hamill's injuries from becoming fatal.

19 It is because of that possibility that we suggest

20 that the Inquiry should address the question of whether

21 the Land Rover crew could have prevented Robert Hamill's

22 death. Crucial to that question is a determination of

23 at what point the crew got out of the Land Rover.

24 For the reasons set out at pages 300-301 of part 6

25 of the consolidated closing submissions, we consider

1 that the weight of the reliable evidence shows that the

2 Land Rover crew did not leave their vehicle until the

3 attacks on Robert Hamill and D had already taken place.

4 We respectfully remind the Inquiry that the reason

5 the Land Rover crew was on duty that night in the centre

6 of Portadown, a notorious flash point for sectarian

7 confrontations, was the prevention of public disorder.

8 Furthermore, Thomas Mallon alerted them to the fact

9 that people were leaving St Patrick's Hall. They should

10 have been in a state of high alert. Instead members of

11 the crew say they were engaged in friendly conversation

12 with two of the suspects, Stacey Bridgett and

13 Dean Forbes.

14 There is an inconsistency here which we draw to the

15 Inquiry's attention. If, as they say happened, the

16 Land Rover crew emerged from their vehicle in response

17 to Constable Neill being dragged from the Land Rover,

18 why were Stacey Bridgett and Dean Forbes prosecuted? If

19 they were talking to officers who were still inside the

20 Land Rover, surely that gives them an alibi.

21 The theory has been advanced by the PSNI, and that's

22 at page 98 of part 5, that the Land Rover crew were

23 distracted by the interaction between Thomas Mallon and

24 Stacey Bridgett and Dean Forbes, and that their

25 immediate priority was to watch over Thomas Mallon to

1 make sure that he went on his way safely.

2 However, if they were watching over Thomas Mallon

3 and keeping an eye on Stacey Bridgett and Dean Forbes

4 just at the moment of the attack on Robert Hamill, why

5 did the RUC recommend the prosecution of Stacey Bridgett

6 and Dean Forbes?

7 Thomas Mallon could not identify the man who spoke

8 to him, other than to say that one of the them was

9 carrying a bottle of Buckfast, Buckfast being one of the

10 beverages of choice on such occasions at that time.

11 Doubtless there was more than one young man in Portadown

12 town centre that night carrying such a bottle. Their

13 identification of Stacey Bridgett and Dean Forbes as

14 being the persons interacting with Thomas Mallon comes,

15 as far as we can see, solely from the Land Rover crew.

16 Given that the Land Rover crew named so few people

17 that they recognised at the scene, and given the

18 allegations against Reserve Constable Atkinson regarding

19 Allister Hanvey, the Inquiry may think that the

20 inconsistencies surrounding Stacey Bridgett and

21 Dean Forbes are significant and they may cast doubt on

22 the collective credibility of the Land Rover crew and

23 they may suggest other alleged perpetrators, apart from

24 Allister Hanvey, benefited from attempted police

25 protection.

1 Had Stacey Bridgett and Dean Forbes come to trial,

2 no doubt their defence counsel would have argued that if

3 they were chatting with the Land Rover crew and

4 bantering with Thomas Mallon in plain sight of the crew,

5 they could not have been attacking Robert Hamill.

6 Indeed, it is our understanding that the defence had

7 served notices on some of the officers of their

8 intention to call them as alibi witnesses.

9 Leaving those inconsistencies aside, in our

10 submission, in light of the fact that the Land Rover

11 crew were deployed on public order duties, they were in

12 neglect of their duty, because, according to their own

13 accounts, albeit we say those accounts must be

14 approached with caution, some of them were engaged in

15 chat with Dean Forbes and Stacey Bridgett when they

16 should have been on high alert, especially after

17 Thomas Mallon's warning.

18 Given the overwhelmingly Protestant make-up of the

19 RUC in 1997 and the perceptions that RUC officers had of

20 Catholics and Catholics of the RUC, as touched on in

21 Professor McEvoy 's report, particularly in sections 1

22 and 2, and overlaid as those perceptions were by the

23 political tensions surrounding the reform of policing

24 and the run-up to the marching season, in our experience

25 the Land Rover crew would have been highly atypical if

1 they had been unduly concerned about a young Catholic

2 man getting a beating. In our submission, their

3 insouciance, even after they had been warned of

4 potential trouble, is evidence of their indifference to

5 the safety of the Catholics leaving the dance hall, and

6 also amounted to negligence.

7 Those four officers were all armed with handguns.

8 We do not suggest they should have shot anyone, but we

9 do suggest that a warning shot fired into the air might

10 well have brought those inclined to fight to their

11 senses or, at the very least, might have caused a pause

12 in the proceedings of which the crew might have taken

13 advantage. They also had a Land Rover with flashing

14 lights and a siren which they could have deployed

15 proactively.

16 We leave it to the Inquiry to determine whether

17 there was anything the Land Rover crew could have done

18 to prevent the assault. In our submission, the evidence

19 shows that they took no steps whatsoever to try to do

20 so.

21 Another aspect which goes to the issue of negligence

22 is the position of the Land Rover at the time of the

23 attacks, about which the consensus seems to be that it

24 was at LR3. At this point perhaps it would be helpful

25 if we could have plan 4 displayed.

1 THE CHAIRMAN: Yes, that's on our screens.

2 MS WINTER: Thank you. If LR3 is accurate, then the vehicle

3 was parked facing High Street, although not looking

4 directly down it, as it was slightly angled towards the

5 Halifax on the corner of Woodhouse Street. From the

6 passenger side window there would have been a fairly

7 clear view down Woodhouse Street, but from the driver's

8 side window there was no view up Thomas Street. It is

9 generally agreed that the view from the back windows of

10 the Land Rover was restricted, although some witnesses

11 say that the back door of the Land Rover was partially

12 open.

13 The warning delivered by Thomas Mallon was specific.

14 He said that people were leaving St Patrick's Hall.

15 Anyone with local knowledge will have known Catholics

16 leaving the dance hall would come down Thomas Street,

17 cross the city centre junction and go down

18 Woodhouse Street to get home. Constable Neill, the

19 driver, seems to have parked the Land Rover in such

20 a way that he did not have a good view of the town

21 centre junction or of Thomas Street. He was also

22 partially blocking Woodhouse Street, thus making it more

23 difficult for Catholics to cross quickly from

24 Thomas Street and get away from the town centre down

25 Woodhouse Street. People coming down Thomas Street

1 would have had to cross diagonally to their right to

2 reach Woodhouse Street. With the Land Rover parked

3 where it was, they would have had to skirt round the

4 back of the Land Rover in order to enter

5 Woodhouse Street.

6 Thus the Land Rover was not well placed to allow its

7 occupants a strategic overview of the situation at the

8 town centre junction, and it was creating something of

9 a bottle-neck at the entrance of Woodhouse Street.

10 An officer intent on preventing public disorder

11 would surely have parked facing the town centre junction

12 with the best possible sightings of both Thomas Street

13 and Woodhouse Street, while keeping the exit from

14 Thomas Street and the entrance to Woodhouse Street

15 clear. In our submission, it is further evidence that

16 Thomas Mallon's warning was not taken seriously and that

17 the Land Rover crew, in particular Constable Neill, was

18 negligent in not seeking to place the Land Rover in the

19 best possible position to both prevent and observe any

20 public disorder.

21 If the Inquiry is persuaded that the Land Rover was

22 badly positioned, then you will need to decide whether

23 the Land Rover crew was merely careless or whether their

24 actions were deliberate.

25 A further question for the Inquiry is whether the

1 RUC obstructed the investigation into Robert Hamill's

2 death. We will come to an analysis of the allegations

3 concerning Reserve Constable Atkinson later, but we say

4 that the Land Rover crew were further negligent in going

5 off duty without making statements about what was

6 obviously a serious major incident.

7 Reserve Constable Atkinson and Constable Neill were

8 also negligent in not naming Allister Hanvey in their

9 statements as having been present at the scene. We note

10 that the PSNI concedes that Reserve Constable Atkinson

11 deliberately withheld Allister Hanvey's name in order to

12 protect him from ever coming to police attention. That,

13 sir, is at part 9, page 581.

14 We also say that Constable A was negligent in

15 arresting Wayne Lunt and then releasing him. She

16 compounded her negligence by not recording her detention

17 of Wayne Lunt in her notebook. She was further

18 negligent in not re-arresting Wayne Lunt when

19 Colin Prunty told her he had seen Wayne Lunt kicking

20 Robert Hamill.

21 The 2001 Police Ombudsman's report was critical of

22 the behaviour of Inspector McCrum in particular. It

23 found he should have concentrated more on debriefing

24 those under his command, thus ensuring that all relevant

25 witness statements were completed. It criticised him

1 for not taking a more active leadership role by

2 supervising and assisting those under his command, and,

3 as the senior officer at the scene, for being

4 insufficiently hands-on in his approach.

5 This investigation resulted in a recommendation that

6 Inspector McCrum be admonished, but he refused to accept

7 any form of reprimand. Colin Murray made similar

8 criticisms in his first report and those are in part 9,

9 pages 518-519.

10 The RUC were also negligent in not securing the

11 scene until some five and a half hours after the

12 incident. The scene was not taped off until 7.25 am.

13 A SOCO was not requested until 8.00 am, and he did not

14 actually arrive until 9.55 am. The PSNI concedes that

15 it is valid to highlight the failure to preserve the

16 scene for forensic examination at part 9, page 610.

17 In our submission, all these acts of omission

18 materially obstructed the GBH investigation and,

19 subsequently, the murder investigation. In our view,

20 the golden hours were squandered.

21 Sir, that completes our additional submissions on

22 parts 5, 6 and 9 of the consolidated closing submissions

23 and we turn now to aspects of parts 8 and 14, the

24 question of whether Reserve Constable Atkinson tipped

25 off Allister Hanvey and the RUC's response to that

1 allegation, which seems to us can conveniently be

2 considered together.

3 These are clearly matters that go to the issues

4 identified in the Inquiry's terms of reference of

5 whether the investigation of Robert Hamill's death was

6 obstructed or attempts were made to obstruct it and

7 whether any such obstruction was intentional or

8 negligent.

9 The following facts are not in dispute. We know

10 that two telephone calls were made from the Atkinson

11 household to the Hanvey household. We know that

12 Thomas Hanvey gave Allister Hanvey a false alibi on the

13 night of the attacks. We know that Reserve

14 Constable Atkinson and Constable Neill omitted to

15 identify Allister Hanvey as having been present at the

16 scene of the attacks in the statements they made when

17 they were recalled to the RUC station. We know that the

18 McKees were convicted of perverting the course of

19 justice after admitting that they had lied about the

20 first of the two telephone calls. We also know that the

21 RUC charged Reserve Constable Atkinson, Eleanor Atkinson

22 and Kenneth Hanvey with perverting the course of justice

23 by lying about that telephone call, but the case

24 collapsed.

25 The only evidence for the content of the telephone

1 calls comes from a statement which Tracey Clarke made to

2 the police and repeated to counsel for the DPP,

3 Gordon Kerr, QC, but which she repudiated on oath before

4 this Inquiry.

5 We submit that one of the questions for the Inquiry

6 is: did the manner in which the RUC took Tracey Clarke's

7 statement amount to obstruction of the murder

8 investigation, and, if so, was that deliberate or

9 negligent? We say that the test of whether the manner

10 in which the statement was taken amounted to obstruction

11 is whether any procedural improprieties were such that,

12 had Allister Hanvey or Reserve Constable Atkinson come

13 to trial, her statement would have been deemed

14 unreliable.

15 Tracey Clarke was only 17 at the time when she made

16 her statement and she was a vulnerable juvenile. She

17 had a difficult relationship with her mother and

18 stepfather. She also had two jobs, working by day in

19 a travel agent's and by evening as a waitress. She was

20 taken without warning to an RUC station at 10.30 pm on

21 a Friday night. She was not legally represented and was

22 not consulted about the presence of her aunt,

23 Andrea McKee, who Tracey Clarke alleges intervened in

24 the police interview. Tracey Clarke had completed

25 a police questionnaire on 8th May 1997 in which she said

1 she had seen nothing.

2 In the late-night interviews on 9th and 10th May she

3 completely changed her story. Skilful defence counsel

4 would have had very little difficulty in seriously

5 undermining her credibility. Even if counsel were not

6 skilful, any decent trial judge would have been

7 seriously concerned about her credibility and would have

8 warned himself and any jury about those concerns.

9 One might have thought the police officers, aware

10 that a serious allegation had been made against another

11 officer that he had conspired with an alleged

12 perpetrator of the murder, would have played it by the

13 book. They would have wanted Tracey Clarke's evidence

14 to stand up in court, unless, of course, they wanted to

15 protect their colleague. As it was, they acted so

16 negligently as to amount, in our submission, to

17 obstruction.

18 As to whether their actions were deliberate, we

19 leave that to the Inquiry to determine, but we invite

20 you to consider that question in the context of the

21 police investigation as a whole rather than looking at

22 it in isolation.

23 Another question that the Inquiry obviously needs to

24 examine is whether, on the balance of probabilities,

25 Reserve Constable Atkinson did tip Allister Hanvey off.

1 This will require consideration of whether

2 Tracey Clarke's original statement was true or not. She

3 certainly convinced Gordon Kerr, QC, an experienced and

4 senior barrister, of her veracity, even though she told

5 him she would rather die than give evidence.

6 We deal with this issue at pages 233-234 of part 5

7 of the consolidated closing submissions. If her

8 original statement was true, then the Inquiry will be

9 forced to the conclusion that the evidence she gave this

10 Inquiry was not.

11 In determining this matter, the Inquiry is entitled

12 to have regard to Reserve Constable Atkinson's

13 behaviour. He caused Andrea and Michael McKee and

14 possibly Eleanor Atkinson and Kenneth Hanvey to lie

15 about the telephone call between his household and that

16 of Allister Hanvey.

17 The question for the Inquiry must be: why would he

18 do so, if he did not, in fact, make the calls himself

19 and if he did not tip Allister Hanvey off? We note that

20 the PSNI accepts that he did tip Allister Hanvey off at

21 part 8, page 482.

22 If the Inquiry accepts it also, then that most

23 definitely was obstruction of the police investigation

24 and it must have been deliberate, because they are not

25 the kinds of acts that are done negligently or

1 accidentally.

2 We would go further and say this was an act of

3 collusion.

4 Turning now to the RUC's response to the tip-off

5 allegation, we have already commented on the

6 circumstances in which Tracey Clarke's statement was

7 taken. Initially, DCS McBurney did what one would

8 expect any good police officer to do on learning of

9 Tracey Clarke's allegation that Reserve

10 Constable Atkinson had tipped off Allister Hanvey. He

11 sought Atkinson's records from his telephone company and

12 these were in DCS McBurney's possession around

13 16th May 1997.

14 Those acting for serving and retired police

15 officers, Edwards & Co, have explained that, in 1997,

16 telephone records obtained from telephone companies were

17 regarded as intelligence and could not be introduced in

18 court as evidence. That's at part 14, page 1096. As

19 the Inquiry will know, all intelligence is graded for

20 its reliability and its significance. Allister Hanvey's

21 telephone records would have been rated A1 in relation

22 to the fact that two calls were made to the Hanvey

23 household from the Atkinson household, a fact which

24 seems not to be in any dispute.

25 The telephone records were not, of course, probative

1 of the contents of the telephone calls. However,

2 DCS McBurney had, in the person of Tracey Clarke,

3 a witness who was claiming to have knowledge of the

4 content of those calls. Once he obtained the telephone

5 records, he had confirmation of the fact that a call had

6 been made from the home of Reserve Constable Atkinson at

7 8.37 am on 27th April 1997, although Tracey Clarke put

8 it at around 8.00 am, and the fact that more than one

9 such call had been made, although calls were not being

10 made every day, as described by Tracey Clarke.

11 In our written submissions we have pointed out that

12 Reserve Constable Atkinson had other opportunities to

13 speak to Allister Hanvey apart from over the telephone,

14 and that's at part 14, page 1094.

15 The central tenets of the tip-off allegation were:

16 1. Reserve Constable Atkinson had advised

17 Allister Hanvey to dispose of his clothing.

18 2. He had kept Allister Hanvey informed about the

19 police investigation.

20 Once DCS McBurney had corroboration that the second

21 allegation had some verifiable truth in it, one would

22 not have expected him to sit in the long grass and wait

23 to see what happened. Two immediate courses of action

24 were open to him. One was to investigate

25 Allister Hanvey's alibi, and we will move to that

1 shortly. The other was to recommend RC Atkinson's

2 immediate suspension.

3 The Inquiry may feel that, given the very serious

4 nature of the allegation, that a police officer had

5 assisted and was intending to protect an alleged

6 offender, suspension would have been a wise precaution,

7 requiring very little in the way of a judgment call and

8 absolutely no benefit of hindsight. Instead

9 DCS McBurney refrained from putting the tip-off

10 allegation to Reserve Constable Atkinson until

11 9th September 1997 and then did so in such a way that

12 it, in our submission, itself amounted to a tip-off.

13 In the interim, DCS McBurney seems to have

14 concentrated on preparing the case against the alleged

15 perpetrators, apparently relying solely on the

16 statements of Tracey Clarke and Timothy Jameson.

17 DCS McBurney's purported reason for not putting the

18 allegation to Reserve Constable Atkinson was the need to

19 protect Tracey Clarke. However, he was planning to put

20 her in the witness box eventually, so her allegations

21 would have become public knowledge sooner or later.

22 In any case, it would seem that Reserve

23 Constable Atkinson knew she had been to the police

24 within a very short time of her having done so.

25 Andrea McKee told Detective Inspector Irwin, when he

1 interviewed her on 25th October 2000, that Reserve

2 Constable Atkinson had told her, shortly after

3 Tracey Clarke had made her statement, that he knew that

4 she had been to the RUC station and made a statement.

5 The Inquiry team has suggested that, if that is

6 true, then Reserve Constable Atkinson knew about

7 Tracey Clarke's statement, someone must have tipped him

8 off and that someone, they suggest, must have been the

9 senior investigating officer, DCS McBurney. They have

10 also pointed that this would have enabled Reserve

11 Constable Atkinson to keep Allister Hanvey informed.

12 That's at part 14 on page 1050.

13 Sir, we share the Inquiry team's concerns. Knowing

14 that Reserve Constable Atkinson may have assisted and

15 protected Allister Hanvey, one might have expected

16 DCS McBurney to have sought independent evidence that

17 was not dependent on Tracey Clarke and Timothy Jameson's

18 evidence alone. Several witnesses placed

19 Allister Hanvey at a party with some of the other

20 alleged perpetrators in the early hours of the morning

21 after the attack and Allister Hanvey had withdrawn money

22 from an ATM at 8.46 am on High Street, Portadown, on

23 27th April. Yet DCS McBurney accepted uncritically his

24 alibi that he had been staying at his uncle

25 Thomas Hanvey's house that night.

1 The question for the Inquiry we suggest is: why did

2 DCS McBurney delay until September before putting the

3 tip-off allegation to Reserve Constable Atkinson? One

4 possible answer is that he hoped that the alleged

5 perpetrators would be convicted and that Reserve

6 Constable Atkinson's alleged crime could be suppressed.

7 If so, and especially if DCS McBurney did inform Reserve

8 Constable Atkinson about Tracey Clarke's allegations,

9 that would have been collusion.

10 Having informed Reserve Constable Atkinson on

11 9th September of the precise nature of the allegations

12 against him, DCS McBurney then delayed until 9th October

13 before interviewing Reserve Constable Atkinson again

14 about the telephone calls. This gave Reserve

15 Constable Atkinson time to concoct a false alibi for the

16 calls with Eleanor Atkinson and Kenneth Hanvey, who both

17 denied it, and the McKees, who have both admitted it and

18 been convicted and sentenced for it.

19 We submit that the guilty pleas and convictions of

20 the McKees pass the highest of tests that, on the

21 balance of probabilities, Reserve Constable Atkinson,

22 Eleanor Atkinson and Kenneth Hanvey have all lied to the

23 Inquiry concerning the telephone calls.

24 It is regrettable that the trial of the McKees

25 preceded that of Reserve Constable Atkinson, his wife

1 and Kenneth Hanvey, and this is a matter which goes to

2 part 18 that we will revert to later. What it meant was

3 Andrea McKee came to the later trial already tarnished

4 as a person convicted of conspiracy to pervert the

5 course of justice. However, it is in some ways

6 surprising that she ever came to trial at all.

7 DCS McBurney adopted a very risky course in

8 interviewing her on 20th June 2000 as a witness without

9 cautioning her. That statement would not have been

10 admissible in court and there was a real danger that in

11 the interim between making that statement and her being

12 interviewed again under caution by DI Irwin on

13 25th October 2000 she would decide to retract. The

14 Inquiry will no doubt wish to consider why DCS McBurney

15 did that, especially since he had known since

16 September 1997 that her alibi statement was false.

17 The Inquiry may also wish to consider what prompted

18 DCS McBurney to wait until 20th June 2000 to interview

19 Andrea McKee without caution. His apparent clairvoyance

20 in foreseeing the McKees' separation is not an adequate

21 explanation, especially as he had known they had

22 separated since at least 10th October 1999.

23 Indeed, the evidence suggests that, had it not been

24 for pressure by the Hamill family on the Secretary of

25 State and pressure from the Northern Ireland Office in

1 turn on the chief constable, the police investigation

2 had run into the sand instead of being reopened in June

3 of 2000. DCS McBurney was certainly waiting in the long

4 grass, but we submit it was not because of some

5 strategic plan so obscure that even his right-hand man,

6 DI Irwin, could not discern it, but because he was

7 hoping the case would go away.

8 Taken in the round, DCS McBurney's response to the

9 tip-off allegation was wholly inadequate. At the very

10 best, his approach was seriously wanting in diligence to

11 the point of negligence. However, his lack of diligence

12 may bear a more sinister explanation. He may

13 deliberately have sought to shield Reserve

14 Constable Atkinson, not necessarily out of any sense of

15 comradeship or personal loyalty, but because he could

16 see how damaging it would be to the RUC, an institution

17 which the evidence seems to suggest commanded deep

18 loyalty from DCS McBurney, if it emerged that an RUC

19 officer had colluded with an alleged perpetrator in

20 what had become a very high profile case and something

21 of a cause celebre.

22 If the Inquiry were to be persuaded that

23 DCS McBurney deliberately shielded Reserve

24 Constable Atkinson, whatever his motivation, then

25 DCS McBurney would have been guilty of collusion. If

1 DCS McBurney did not deliberately set out to shield

2 Reserve Constable Atkinson, but the Inquiry finds his

3 actions had the effect of shielding him in practice,

4 then DCS McBurney would, we submit, have engaged in

5 passive collusion.

6 If the Inquiry accepts our submissions that both

7 RC Atkinson and DCS McBurney acted collusively, whether

8 together or independently of one another, then an even

9 more serious question arises for the Inquiry's

10 consideration, which is whether these were two rogue

11 officers within an otherwise competent, non-sectarian

12 police force, or were they members of a force that was

13 institutionally sectarian?

14 The Inquiry will no doubt be mindful of the fact

15 that an Inquiry into Robert Hamill's death was

16 established on the foot of a prima facie finding of

17 collusion by Judge Cory. We believe that collusion lies

18 at the heart of the Inquiry's deliberations and we will

19 return to this issue at the conclusion of our

20 submissions.

21 Sir, that is the last of our submissions on the

22 issue of the alleged tip-off and the RUC's response to

23 it. We turn now to that area of the Inquiry's terms of

24 reference that asks whether the investigation into

25 Robert Hamill's death was carried out with due

1 diligence.

2 We have already touched on many aspects of the

3 police investigation and suggested a serious want of

4 diligence during the period we have described as the

5 golden hours, amounting to serious negligence and in the

6 handling of the tip-off allegation, amounting, we say,

7 to collusion.

8 However, the RUC was not the only agency bearing

9 responsibility for the investigation as a whole. Both

10 the ICPC and the DPP had some supervision over the

11 investigation, which is why their roles require scrutiny

12 by the Inquiry.

13 In our written submissions on parts 7, 10, 11, 12

14 and 13 of the Inquiry team's summary of comments we

15 criticise many aspects of the police investigation in

16 relation to individual witnesses and suspects. We do

17 not intend to repeat those here. Instead we wish to

18 concentrate on three other aspects of the investigation

19 into Robert Hamill's murder.

20 Firstly, the handling of the complaint about the

21 investigation and the part played by the ICPC;

22 Secondly, the role of the Complaints and Discipline

23 Department within the RUC; and

24 Thirdly, the role of the DPP.

25 Sir, these submissions primarily engage parts 14, 15

1 and 18 of the Inquiry team's consolidated closing

2 submissions.

3 Looking first at the complaint about the

4 investigation and the part played by the ICPC,

5 Robert Hamill's family were unhappy with the police

6 investigation even before Robert Hamill died and the

7 GBH investigation became a murder investigation. Their

8 solicitor, Rosemary Nelson, wrote a letter of complaint

9 on their behalf on 6th May 1997. The complaint was

10 referred to the ICPC by the RUC under Article 7 of the

11 Police (Northern Ireland) Order 1987. The ICPC was

12 entitled to use its discretion whether to investigate

13 an Article 7 complaint.

14 However, before the chief constable,

15 Sir Ronnie Flanagan, became aware that this complaint

16 had been made, Robert Hamill died on 8th May.

17 Sir Ronnie voluntarily referred the investigation to the

18 ICPC for them to supervise. This referral was made

19 under Article 8, and an investigation into such

20 a referral by the ICPC was mandatory.

21 Sir, the basis for this is set out in part 15,

22 pages 1138-1139.

23 We suggest to the Inquiry that such a referral under

24 Article 8 was relatively rare and that there was already

25 public concern about the attack on Robert Hamill and D

1 and the misleading press releases that had been issued

2 by the RUC and that the chief constable was astute

3 enough to realise that this had the potential for

4 becoming a controversial case. Referral to the ICPC

5 carried a particular benefit for the RUC, in that they

6 could refuse to discuss the handling of the police

7 investigation publicly on the ground that the ICPC was

8 supervising the investigation.

9 Although references to the Article 8 referral appear

10 in the papers pertaining to the Article 7 referral, and

11 that's at [15273] in the core bundle, no trace has been

12 found of the actual Article 8 document. However, on

13 9th May 1997 the RUC put out the following press

14 release, and I quote:

15 "All the circumstances surrounding the death of

16 Robert Hamill in Portadown are being investigated by

17 a detective chief superintendent under the supervision

18 of the Independent Commission for Police Complaints."

19 Although DCS McBurney says in his statement that he

20 was requested by the chief constable, on 8th May, to

21 take responsibility for both the murder investigation

22 and the Hamill family's complaint, which has come to be

23 known as the neglect complaint, the Inquiry team has

24 established that he, in fact, took on responsibility for

25 the neglect complaint on 9th May.

1 Since Andrea McKee had informed DC Irwin of

2 Tracey Clarke's allegation about the tip-off on the

3 evening of 8th May in the so-called graveyard

4 conversation and DI Irwin told this Inquiry that he

5 reported this matter to his boss, as you might expect,

6 it being a very serious allegation, it must be that

7 DCS McBurney took responsibility for the neglect

8 complaint on the 9th May in full knowledge of the

9 tip-off allegation.

10 In our submission, it was not appropriate for the

11 same officer to be responsible for the supervision of

12 both the murder investigation and the allegations of

13 neglect and corruption on the part of RUC officers.

14 Now, everyone in authority, from the chief constable

15 and deputy chief constable, Blair Wallace, who was

16 responsible for discipline, to the Chair of the ICPC,

17 Paul Donnelly, assumed that the neglect complaint

18 subsumed the tip-off allegation, everyone, that is,

19 except the staff of the ICPC, and, in particular, the

20 deputy principal of the ICPC, Greg Mullan, who has

21 maintained before this Inquiry that the tip-off

22 allegation was never referred to the ICPC and,

23 inexplicably, that it fell outside the ICPC's remit.

24 Since no-one informed the Hamill family about the

25 tip-off allegation, they were blissfully unaware that

1 the ICPC had voluntarily restricted their role to the

2 investigation of neglect on the part of the RUC during

3 the GBH phase of the investigation.

4 Assistant Chief Constable Hall says that he did

5 refer the tip-off allegation to the ICPC during

6 a telephone conversation, but even if that did not

7 constitute a referral, the ICPC could, and should, have

8 asked the chief constable to make a referral, a request

9 which Paul Donnelly says, and Sir Ronnie Flanagan agrees

10 with him, would not have met with any resistance.

11 However, in our respectful submission, the focus

12 placed on whether the neglect complaint subsumed the

13 tip-off allegation has perhaps been slightly misplaced.

14 Although the Article 8 referral cannot be found, the RUC

15 press release, which was never challenged by the ICPC,

16 strongly suggests that the RUC believed that the ICPC

17 was supervising, not only the Article 7 complaint made

18 by the Hamill family, but the whole of the murder

19 investigation on foot of the mandatory Article 8

20 referral. If that is right, and we suggest that it must

21 be, especially in light of the reports produced by the

22 ICPC, then the Article 8 referral would have subsumed

23 the tip-off allegation and much more besides.

24 Thus it would appear that in complete dereliction of

25 duty the ICPC failed to supervise any aspect of the

1 murder investigation and restricted itself to a narrow

2 consideration of the neglect complaint made by the

3 Hamill family.

4 ACC White has told the Inquiry that DCS McBurney, as

5 the senior investigating officer for the murder, was not

6 under any kind of day-to-day supervision, nor was he

7 held to account, and that's at part 10, page 701. If

8 anyone within the RUC was in a position to know that the

9 ICPC was not supervising the murder investigation, it

10 would have been DCS McBurney, but if, as we have argued,

11 he was protecting Reserve Constable Atkinson, it would

12 not have suited him to draw the RUC's attention to the

13 ICPC's failure.

14 On a benign interpretation, one might view

15 DCS McBurney's own failure to perceive any potential

16 conflict of interest in his dual role as perfectly

17 understandable. After all, no-one else had a problem

18 with it. The only people who might have had a problem

19 with it were the Hamill family, but they did not know

20 about the tip-off allegation.

21 One might also conclude that DCS McBurney made

22 a judgment call to put the priority on the murder

23 investigation and to regard any disciplinary action

24 against Reserve Constable Atkinson as secondary and even

25 counter-productive to the murder investigation.

1 However, against that may be weighed his failure to

2 pursue other lines of enquiry against the alleged

3 perpetrators, particularly Allister Hanvey, and his

4 extraordinary failure after 30th May 1997 to keep close

5 tabs on the murder investigation.

6 Then there is the way in which he handled the

7 tip-off investigation, which, as we have argued, was

8 lacking in diligence and ultimately collusive.

9 What strikes us, and may also seem to the Inquiry as

10 being completely extraordinary, is that the chief

11 constable, having made an Article 8 referral to the

12 ICPC, no-one in either organisation felt any need or

13 took any steps to ensure that the ICPC was, in fact,

14 discharging its mandatory duty.

15 In our view, the person within the RUC who must bear

16 responsibility for this failure to ensure that the

17 behaviour of his officers came under scrutiny and were

18 held accountable must be the chief constable, who,

19 although he now has no recollection of it, accepts he

20 was made aware of the tip-off allegation on

21 12th May 1997.

22 Within the ICPC, Greg Mullan must take

23 responsibility for deciding that the tip-off allegation

24 fell outside the ICPC's remit, but both the chief

25 constable and Greg Mullan must take responsibility for

1 not considering the propriety of DCS McBurney's dual

2 role.

3 However, the Inquiry is entitled to, and in our view

4 should, look beyond the question of individual

5 responsibility. The entire system of police complaints

6 was flawed. Unlike today's Police Ombudsman, the ICPC

7 had no independent investigators of their own. When

8 a complaint was made against the RUC, the ICPC had to

9 appoint an RUC officer to investigate.

10 Such a lack of independence was the subject of

11 criticism at the time by international and domestic NGOs

12 and formed part of the political debate about the reform

13 of policing in the lead-up to the Good Friday Agreement

14 in 1998. Paul Donnelly, then Chair of the ICPC, has

15 described the culture within the ICPC as being

16 "Deferential to the point of being sycophantic towards

17 the RUC", and has also said that "The powers of

18 authority that were vested in the organisation were not

19 energetically exercised".

20 The ICPC was infamous for failing to uphold the vast

21 majority of complaints they investigated. Most lawyers

22 regarded making a complaint to the ICPC as a waste of

23 time. We suggest to the Inquiry that DCS McBurney had

24 absolutely nothing to fear from supervision or lack of

25 it by the ICPC.

1 In our submission, the RUC was grossly negligent in

2 not ensuring that its referral to the ICPC was acted

3 upon, while the ICPC was equally grossly negligent in

4 failing to carry out its statutory duty to supervise the

5 murder investigation, which included the tip-off

6 allegation. Whether those failures were deliberate is

7 a matter for the Inquiry to determine.

8 Looking now at the role of the Complaints and

9 Discipline Department, we find the attitude of Chief

10 Inspector Richard Bradley of Complaints and Discipline

11 towards Tracey Clarke's allegations about Reserve

12 Constable Atkinson incomprehensible. Her allegations

13 that a police officer had advised a suspect to dispose

14 of potential evidence in the form of clothing and

15 offered to keep that suspect advised about the police

16 investigation ought to have set off very loud alarm

17 bells. Instead, Chief Inspector Bradley dismissed her

18 allegations as hearsay and explained his failure to take

19 any action at all by saying that Tracey Clarke's

20 statement did not constitute a complaint.

21 He further contended that suspension of Reserve

22 Constable Atkinson would have been completely

23 unwarranted. That's at part 14, page 1071.

24 One is left wondering what an officer would have had

25 to do before he or she found themselves suspended.

1 Deputy Chief Constable Blair Wallace, who had overall

2 responsibility for discipline, and was the one who

3 decided whether any officer should be suspended, claimed

4 that he knew nothing about the allegations against

5 Reserve Constable Atkinson until, "Two or three months

6 after the event". By the "event", we take him to mean

7 Tracey Clarke's statement.

8 It may be true that he did not learn about her

9 statement for a period of time, but the question for the

10 Inquiry must be: once he did know about it, what, if

11 anything, did he do about it?

12 There is another issue that the lackadaisical

13 approach of Complaints and Discipline raises in our

14 minds. Given the very serious nature of the allegations

15 against Reserve Constable Atkinson, surely fairness

16 demanded he be informed and given an opportunity to

17 defend himself against them? It would appear that, not

18 only were the usual procedures not followed, but no

19 clear thought seems to have been given by anyone in

20 Complaints and Discipline as to whether they should be

21 followed and, if not, why not?

22 It is abundantly clear that DCS McBurney had nothing

23 to fear in the way of interference or insistence on

24 following the proper procedures from Complaints and

25 Discipline, who showed a total want of diligence in this

1 matter. Again, it is a matter for the Inquiry to

2 determine whether this amounted to negligence and, if

3 so, whether it was in any way deliberate.

4 The other person outside the RUC with some

5 responsibility for shaping the police investigation was

6 the office of the DPP. In our written submissions at

7 part 18, page 1303, we have argued that the DPP's

8 strategy in relation to prosecutions arising out of the

9 Hamill case was fatally flawed.

10 First, he decided to prosecute before he had

11 received all relevant papers, including the post-mortem

12 report and the complaint file.

13 Secondly, when Timothy Jameson and Tracey Clarke

14 resiled from their statements, he did not do enough to

15 ensure that there were no other lines of enquiry

16 available that could have secured a conviction,

17 particularly in Allister Hanvey and Stacey Bridgett's

18 cases.

19 Thirdly, he divorced the Atkinson complaint from the

20 murder trial and used Reserve Constable Atkinson as

21 a witness against Marc Hobson, knowing him to be

22 tainted.

23 Fourthly, he applied different credibility standards

24 to Reserve Constable Atkinson and Andrea McKee.

25 Fifthly, he divorced the case from the McKees from

1 that against the Atkinsons and Kenneth Hanvey.

2 Sixthly, he cropped the case against the Atkinsons

3 and Kenneth Hanvey on the basis that Andrea McKee may

4 have lied about a visit to the out-of-hours medical

5 centre without properly considering what the

6 consequences would have been for the committal hearing,

7 instead concluding that her credibility was fatally

8 undermined in relation to the trial.

9 In this regard, we respectfully adopt the compelling

10 arguments put forward by counsel for the Hamill family,

11 Barra McGrory QC at part 18, pages 1453-1454.

12 Lastly, the DPP did not prosecute Thomas Hanvey, who

13 supplied a false alibi for Allister Hanvey, or

14 Stacey Bridgett, whose blood was found on Robert Hamill,

15 but who denied being anywhere near him, for attempting

16 to pervert the course of justice.

17 The Chair has directed that the only issue in

18 relation to the DPP which falls within the Inquiry's

19 competence is that of due diligence. We should like to

20 emphasise that our criticisms of the acts and omissions

21 of the office of the DPP are made with that direction

22 firmly in mind. We do not argue that these acts and

23 omissions were wrong or involved making a wrong judgment

24 call, but that, taken collectively, they demonstrate

25 a lack of overall direction that amounts to a lack of

1 due diligence.

2 The DPP's position is pivotal in the criminal

3 justice system. He stands between the all-powerful

4 police and the powerless citizen. He also stands

5 between the dangerous criminal and the innocent victim.

6 The very essence of his role is the upholding of the

7 rule of law. It is his job to ensure that, so far as

8 possible, the innocent are not wrongly tried and the

9 guilty are convicted. We appreciate that that is

10 a difficult balance to maintain and that no DPP will get

11 every decision right.

12 However, when the Hamill case is put under the

13 spotlight, which is this Inquiry's very purpose, there

14 were indicators that should have alerted the Office of

15 the DPP to the need for the most anxious scrutiny.

16 Robert Hamill's murder was high profile. It was

17 obviously sectarian. Alleged suspects had paramilitary

18 connections. The murder took place amid the tensions

19 foreshadowing the highly contentious marching season and

20 against the background of the growing public debate

21 about the need for the reform of policing. The Hamill

22 family, who complained from the outset about the

23 desultory nature of the police investigation. There was

24 an allegation that an RUC officer had tipped off one of

25 the alleged perpetrators. Key witnesses had resiled

1 from their statements. The Secretary of State was

2 asking questions about the case. Even the most naive of

3 DPP's, and this DPP was by no means naive, should have

4 been aware that this was a contentious case and that the

5 actions of the RUC needed to be kept under close review.

6 This was not a case where stones could be left unturned.

7 We accept, of course, the DPP's proposition that it

8 is for the police to investigate and the DPP to

9 prosecute. However, the DPP is not a passive

10 participant in the criminal justice system. He knew

11 that this was a high profile and contentious case. He

12 knew that it was being alleged that an RUC officer had

13 colluded with an alleged suspect. He should, at the

14 very least, have satisfied himself that the police were

15 using due care and diligence in the sense of providing

16 him with the best possible evidence on which to base his

17 prosecutorial decisions. He should have ensured that he

18 had all the papers he needed. He should have satisfied

19 himself that other lines of enquiry, apart from the

20 statements of Tracey Clarke and Timothy Jameson, had

21 been thoroughly explored. He should have asked himself

22 whether an RUC officer who was liable to prosecution for

23 perverting the course of justice was a fit witness to

24 use in a criminal trial or whether, in fact, he should

25 have stood trial himself as an accessory. He should

1 have considered the wisdom of trying the McKees

2 separately from the Atkinsons and Kenneth Hanvey, thus

3 making himself reliant on the evidence of Andrea McKee,

4 herself convicted of perverting the course of justice.

5 Yet he does not appear to have done any of these

6 things. There is no sign of a firm hand on the tiller.

7 The office of the DPP seems to have sat back and let the

8 RUC guide the course of the prosecution policy, despite

9 all the factors which suggested that anxious scrutiny

10 was required.

11 It is for that reason we say that the DPP failed the

12 Hamill family and showed a want of due diligence.

13 It is, of course, for the Inquiry to decide, if they

14 are persuaded that diligence was lacking, whether that

15 diligence was negligent or deliberate.

16 Sir, that concludes our submissions in relation to

17 the DPP. We now turn to the final aspect of our case to

18 you, which is the issue of collusion covered in part 16

19 of the Inquiry team's consolidated closing submissions.

20 The ordinary meaning of the word "collusion" is

21 a conspiracy for improper purposes. In the context of

22 Northern Ireland, the term has come to embrace

23 a number of illegal activities on the part of members of

24 the security forces, the police, the army and the

25 intelligence services, and policies and practices on the

1 part of the state. These include conspiring with

2 paramilitaries to carry out assassinations, taking part

3 in such assassinations, collecting information on those

4 targeted by paramilitaries and passing it over to

5 paramilitaries, passing legitimately collected official

6 information to paramilitaries for illegitimate purposes,

7 failing to prevent paramilitary assassinations,

8 providing weapons to paramilitaries, assisting in the

9 commission of such killings, for example, by lifting

10 road blocks, failing to investigate the killings

11 rigorously, failing to prosecute those responsible for

12 such killings and failing to prosecute or otherwise

13 discipline those members of the security forces involved

14 in collusion.

15 It also can include using public interest immunity

16 certificates and claims at trials and inquests to

17 withhold information concerning alleged collusion,

18 refusing to make public the findings of a limited

19 number of official investigations into collusion and

20 allowing members of the security forces to carry out

21 illegal acts, whether in conspiracy with paramilitaries

22 or not, with impunity and hindering official

23 investigations of those acts.

24 Many of these activities, policies and practices

25 have been described and criticised by international

1 human rights groups and domestic NGOs such as ours over

2 a period of many years. They have also been criticised

3 by the United Nations and the European Court of Human

4 Rights.

5 Collusion is a very difficult thing to prove and to

6 measure, because of its illegal and clandestine nature.

7 No-one knows its true extent, but all the work done on

8 collusion throws up patterns of coincident behaviour

9 which suggests that, over the years, it became systemic.

10 It is significant the consultative group in the past

11 set up by the government to look at how Northern Ireland

12 can deal with its very troubled legacy and move forward

13 into a better future cited collusion as an issue that

14 must be examined. Our own research suggests that it is

15 much more widespread than has yet been acknowledged and

16 that we can only see the tip of the iceberg.

17 At first, successive governments denied that

18 collusion existed, but today it is widely accepted that

19 collusion has taken place, partly thanks to the

20 ground-breaking report issued by Baroness Nuala O'Loan

21 when she was the Police Ombudsman following her

22 investigation into the death of Ronan McCall junior and

23 to the work done by Lord Stevens in the case of

24 Patrick Finucane. The Stevens 3 summary report was the

25 first unequivocal public admission by an establishment

1 figure that collusion was a reality. Lord Stevens said:

2 "My enquiries have highlighted collusion, the wilful

3 failure to keep records, the absence of accountability,

4 the withholding of intelligence and evidence and the

5 extreme of agents being involved in murder. These

6 serious acts and omissions have meant that people have

7 been killed or seriously injured."

8 Of particular relevance to the case of Robert Hamill

9 was Baroness Nuala O'Loan's report, which looked specifically

10 at collusion between RUC Special Branch officers and the

11 UVF. Not only did she find that just one agent had been

12 involved in so many murders and attempted murders that

13 he could only be described as a serial killer, but she

14 also uncovered an appalling catalogue of collusive acts

15 with which we have no doubt that this Inquiry is already

16 familiar.

17 Our point, sir, is that collusion has been

18 officially recognised and documented and that, if there

19 was collusion in Robert Hamill's case, it cannot be

20 looked at in isolation. Collusion is not only about

21 protecting informants. It is the product of the mindset

22 that believes in the protection of the prevailing order

23 at all costs. The role of the RUC in combating

24 terrorism meant that embedded in its culture and ethics

25 was a very strong commitment to preserving the status

1 quo. Collusion does not require mutuality or even any

2 overt agreement between the participants. All that is

3 required is a mutual agenda.

4 Those who participate in collusion often do not

5 perceive themselves as having done anything wrong or

6 having crossed the line between legality and illegality,

7 because they believe they are acting for the best and

8 that the ends justify the means. Collusion thrives best

9 in an environment of impunity where mechanisms for

10 accountability are weak, where there is no real scrutiny

11 and where there are no consequences attendant upon

12 wrongdoing. Above all, collusion thrives in

13 organisations where everyone is of like mind, shares

14 a common background and a common purpose and especially

15 feels under threat from forces outside the organisation.

16 Members of such organisations instinctively defend each

17 other and the organisation as a whole. When any

18 allegation is made against the organisation or

19 individuals within the organisation, they close ranks.

20 Sir, in our submission, the RUC was just such

21 an organisation. Much has been made in the written

22 closing submissions on behalf of serving and retired

23 police officers, of Sir Ronnie Flanagan, and of the RUC,

24 about the need to recognise the difficulties and dangers

25 faced by the RUC in 1997, the dangers applying the

1 benefit of hindsight and the unfairness of second

2 guessing judgment calls.

3 We accept all of those points and have been mindful

4 of them when examining what this Inquiry has discovered

5 concerning Robert Hamill's murder and the investigation

6 of that crime.

7 There have been one or two moments in the course of

8 this Inquiry when an uglier side of policing has been

9 revealed. For example, Detective Constable

10 Paul McCrumlish said in his statement that the

11 collective view of all the officers involved in the

12 investigation was that Robert Hamill had got what he

13 deserved. He said, and I quote, "I recall that the

14 general feeling of the whole investigation team was that

15 Robert Hamill had been the author of his own

16 misfortune". Sir, that's at page 00667 of the core

17 bundle.

18 Chief constable Sir Ronnie Flanagan absolutely

19 denied having suggested to senior civil servant

20 Anthony Langdon that Robert Hamill's own family might

21 have added to his oxygen starvation by cradling his head

22 or that Diane Hamill had her own agenda to discredit the

23 RUC. That's at page 01200.

24 We can think of no possible reason why

25 Anthony Langdon should have lied about this. Those two

1 examples give us a glimpse of the underlying attitudes

2 that pervaded this investigation from, it would seem,

3 top to bottom. Such attitudes are indicative, you may

4 feel, of an approach that was hardly conducive to good

5 police work or the exercise of due diligence. However,

6 be that as it may, we say that it is the actions of the

7 RUC and other agencies such as the ICPC and the office

8 of the DPP which speak for themselves.

9 Sir, we have already submitted that the golden hours

10 of the investigation were squandered, that Reserve

11 Constable Atkinson covered up for Allister Hanvey, that

12 DCS McBurney took decision after decision which

13 undermined his own investigations and protected Reserve

14 Constable Atkinson, and that both the ICPC and the DPP

15 failed to exercise due diligence.

16 What is conspicuous by its absence from all the

17 evidence you have seen and heard is any genuine concern

18 to bring those who murdered Robert Hamill to book. Sir,

19 I hope you will bear with us if we briefly recite the

20 chain of what we believe are the significant events in

21 the sorry history of Robert Hamill's case. It will not

22 reveal anything to you that you do not already know, but

23 bearing in mind what we have already said about

24 collusion, we believe that, put at its lowest, to anyone

25 who is familiar with patterns of collusion in

1 Northern Ireland, it is a chain of events that suggest

2 that collusion may be at issue.

3 A Land Rover is deployed to Portadown town centre

4 specifically tasked to prevent public disorder.

5 Thomas Mallon alerts the crew to the fact people are

6 leaving St Patrick's Hall. The crew does not act on

7 this warning other than to remain at the town centre

8 junction near Thomas Street and Woodhouse Street instead

9 of proceeding to the bottom of the town, however, they

10 do not place the Land Rover in the most effective

11 position for preventing or observing any public

12 disorder. Some of the crew claim to have been chatting

13 to two of the suspects immediately prior to the attack.

14 A vicious sectarian attack is made on Robert Hamill

15 and D by Loyalists. The crew fails to prevent this

16 attack or to intervene quickly enough to prevent

17 Robert Hamill's injuries from becoming fatal.

18 Constable A detains Wayne Lunt, but let's him go. She

19 does not record this fact. She fails to re-arrest

20 Wayne Lunt after Colin Prunty identifies him as one of

21 the people involved in the attack on Robert Hamill. The

22 crew goes off duty without even bothering to report the

23 attacks. Two members of the crew, Reserve Constable

24 Atkinson and Constable Neill, when they are recalled to

25 work to make statements, fail to name another suspect,

1 Allister Hanvey, as having been present at the scene.

2 The first senior officer on the scene, Inspector McCrum,

3 fails to debrief his officers properly or to take

4 an active leadership role. He refuses to accept any

5 responsibility for these failings.

6 The crime scene is not secured until five and a half

7 hours after the attack. The chief constable of the RUC

8 refers the case to the ICPC. The Hamill family

9 independently lodge a complaint with the ICPC about

10 neglect of duty in the police investigation.

11 Robert Hamill dies of his injuries and DCS McBurney is

12 appointed to oversee both the murder investigation and

13 the neglect complaint.

14 The ICPC pursues the Hamill family complaint, but

15 not the chief constable's referral, thus failing to

16 supervise the murder investigation. Reserve

17 Constable McCaw overhears talk about the attack at the

18 McKees' Tae Kwon Do club and reports it. Andrea McKee

19 is interviewed informally. This leads to Tracey Clarke,

20 a vulnerable juvenile, being interviewed, but her

21 statement is taken in circumstances which would have

22 called the reliability of her evidence into serious

23 question, had she ever appeared in court.

24 Timothy Jameson, whose family is locally powerful

25 and has paramilitary connections, is also interviewed

1 and corroborates some of Tracey Clarke's evidence.

2 One of Tracey Clarke's allegations is that Reserve

3 Constable Atkinson advised her then ex-boyfriend,

4 Allister Hanvey, to dispose of the clothing he wore on

5 the night of the attack and kept him informed about the

6 police investigation. Six suspects are arrested

7 including Allister Hanvey and Dean Forbes and

8 Stacey Bridgett, but not Timothy Jameson, nor his

9 associate Andrew "Fonzy" Allen, whom Timothy Jameson had

10 named as a perpetrator.

11 The search of Allister Hanvey's house is perfunctory

12 and does not search for evidence that clothing has been

13 destroyed. Thomas Hanvey gives Allister Hanvey a false

14 alibi for the night of the attack. He is not prosecuted

15 for perverting the course of justice. The ICPC is told

16 of the allegation against RC Atkinson but unaccountably

17 decides it does not fall within their remit. Reserve

18 Constable Atkinson's telephone records are checked, but

19 he is not suspended from duty, even when the records

20 show that two telephone calls were made between the

21 Atkinson and Hanvey households in the aftermath of the

22 attacks. No attempt is made to break Allister Hanvey's

23 alibi by interviewing witnesses who saw him at a party

24 when he says he was at Thomas Hanvey's home.

25 All six suspects choose to be housed in Loyalist

1 wings of the prison while on remand. Tracey Clarke's

2 allegations are not put to Reserve Constable Atkinson

3 for over five months. He denies them. He is then not

4 questioned about the allegations again for a further

5 month, during which time he concocts a false alibi with

6 the McKees, who later admit helping him and are

7 convicted of perverting the course of justice.

8 DCS McBurney allows Andrea McKee to make a lying

9 statement, knowing it to be untrue, but she is not

10 challenged. It is also alleged that RC Atkinson's wife

11 Eleanor and Kenneth Hanvey provided false alibis, but

12 they deny this.

13 Tracey Clarke and Timothy Jameson refused to give

14 evidence at the trial or the inquest. Tracey Clarke

15 does not say that her statement was untrue, but only

16 that she is afraid of Loyalist retaliation. The case

17 against five of the six suspects collapses.

18 Stacey Bridgett, whose blood was found on Robert Hamill,

19 but denies having been anywhere near him is not charged

20 with conspiracy to pervert the course of justice, nor is

21 the blood evidence put to him before all charges against

22 him are dropped. Marc Hobson stands trial and is

23 convicted of the minor offence of affray.

24 RC Atkinson is used as a prosecution witness, even

25 though the RUC and the DPP both know that he is

1 an alleged accessory to murder. Pressure is brought to

2 bear by the Hamill family on the Secretary of State, and

3 the NIO in turn puts pressure on the chief constable,

4 who fails to tell the Secretary of State about the

5 Atkinson allegation. DCS McBurney interviews

6 Andrea McKee, but not under caution, thus risking

7 a retraction.

8 Once PONI takes over from the ICPC they express

9 a complete lack of confidence in DCS McBurney and he is

10 replaced by Colville Stewart as the senior investigating

11 officer. Reserve Constable Atkinson is described to

12 PONI officers as possibly having Loyalist sympathies.

13 The McKees stand trial separately from the Atkinsons and

14 Kenneth Hanvey and are convicted. The case against the

15 Atkinsons and Kenneth Hanvey collapses after

16 Andrea McKee apparently lies about a visit to

17 an out-of-hours medical centre, even though her story

18 about missing the committal hearing because of her son's

19 ill-health is substantially true. The DPP drops the

20 case, even though it is unlikely that the committal will

21 collapse and even less likely that this alleged lie will

22 significantly affect Andrea McKee's credibility at

23 trial.

24 One of the Attorney General's reasons for approving

25 the collapse of the trial is to speed up the

1 establishing of this Inquiry and to allay criticism

2 about the delay in sitting up an Inquiry into the murder

3 of Patrick Finucane.

4 Sir, in our submission, that is a chain of events

5 tending only in one direction: downhill all the way.

6 The Hamill family has lost a loved one and no-one in

7 authority with the exception of PONI, who played only

8 a limited role, did anything to try to stop that

9 downward trajectory other than the Hamill family

10 themselves, without whose quest for truth the police

11 investigation would have run into the sand and none of

12 us would be sitting here today.

13 Our organisations are sorry that the criminal just

14 justice system failed them so badly and we salute the

15 Hamill family's courage.

16 There are only two conclusions that can be drawn

17 from such an inadequate police investigation. Either

18 the RUC was a hopelessly incompetent police force,

19 incapable of the detection of serious crime, or the

20 majority of officers simply did not care what happened

21 to Robert Hamill and had no desire to find out the

22 truth.

23 If the Inquiry conclude that the latter is the case,

24 then they will need to consider whether the failure of

25 the officers concerned was a matter of individual

1 responsibility or whether the failings were

2 institutional.

3 If, as we believe, the RUC as an institution failed

4 Robert Hamill, then we invite the Inquiry to consider

5 why that was and whether institutionalised sectarianism

6 within the RUC and collusion accounted for its failure.

7 Finally, however culpable certain individuals may

8 have been for the wholesale failure into Robert Hamill's

9 murder, and regardless of whether their negligence was

10 deliberate or not, we adopt the cogent written arguments

11 put forward by counsel for the Hamill family,

12 Barra McGrory QC, at part 16, pages 1274-1287, that the

13 ultimate responsibility for that wholesale failure must

14 lie with the then chief constable of the RUC,

15 Sir Ronnie Flanagan.

16 Sir, that concludes our oral submissions, which we

17 hope are of some assistance to this Inquiry in your

18 deliberations

19 THE CHAIRMAN: Thank you very much. We are going to have

20 a break, but may I just enquire if there are any who

21 wish to ask Mrs Winter any questions? If they don't,

22 then we do not need to detain her longer.

23 MR UNDERWOOD: I think we may have lost the link anyway.

24 THE CHAIRMAN: It is only right, if people wish to ask

25 questions, they should have the opportunity. I don't

1 want to hear any questions now, but simply to know

2 whether we need to ask Mrs Winter to wait now or not.

3 MR McCOMB: If I may run it past you, sir. There is really

4 just one matter of factual inaccuracy which I think, in

5 fairness, I should deal with. There may be others that

6 others wish to ...

7 It was at page 46, line 18 of the present

8 time-line where she came out with the totally

9 unwarranted, in my respectful submission, suggestion

10 that Timothy Jameson and his father had paramilitary

11 connections. There has been no evidence of that. It is

12 just one of many perhaps unwarranted pieces of

13 gratuitous information which has come from the BIRW.

14 MR UNDERWOOD: To be fair, I think what the transcript says

15 and what was said was the family had paramilitary

16 connections. I think that was indeed what Mr McBurney

17 said when he was interviewed by the Inquiry and he was

18 asked why he didn't put protection measures in place for

19 Timothy Jameson. He said the family had paramilitary

20 connections and it, I paraphrase, would be the worse for

21 anybody who interfered with him.

22 THE CHAIRMAN: Yes. Thank you.

23 MR WOLFE: Sir, I don't think I should let the opportunity

24 go without saying there are many aspects of the British

25 Irish Rights Watch and CAJ joint submission with which

1 my client will disagree. I don't think it is my role,

2 I have to say, to question an advocate in terms of what

3 she said, but in due course next week I will respond to

4 those submissions in some detail.

5 THE CHAIRMAN: Well, Mrs Winter is in the dual position

6 really of advocate and witness. It is only if you feel

7 it necessary.

8 MR WOLFE: Yes. I am grateful for that. Thank you.

9 MR ADAIR: I am adopting the same approach, Chairman. There

10 is one matter I would like to ask just in relation to

11 the last comment that was made.

12 The proposition, Ms Winter, that you gave about your

13 overall view of this. There are two alternatives. That

14 the RUC was a hopelessly incompetent force incapable of

15 detecting serious crime. That's one alternative. Is

16 that right?

17 MS WINTER: Yes.

18 MR ADAIR: Have you seen the figures for the RUC's detection

19 of Loyalist and Republican crime during the 1990s? Have

20 you seen those figures?

21 MS WINTER: I have, although would I not be able to remember

22 what I had seen, if you see what I mean.

23 MR ADAIR: Are you aware that they detected murder after

24 murder after murder of Catholics by Protestants and

25 Protestants by Catholics? Do you know that?

1 MS WINTER: Yes. I was putting two alternatives to the

2 Panel, and, in my submission, it is for them to decide

3 which of those alternatives, if either, is right.

4 MR ADAIR: Those not what I am asking you about. You have

5 said there are two alternatives, that either the RUC was

6 a hopelessly incompetent organisation, incapable of

7 detecting serious crime. That is one proposition you

8 are asking this Panel to consider, isn't it?

9 MS WINTER: I have put two propositions to the Panel.

10 MR ADAIR: I know you did. Isn't that one of them? I know

11 you put two. Isn't that one of them?

12 MS WINTER: Yes, that's certainly a proposition I put to

13 them, but it is for them to decide which of the two

14 alternative propositions they think is more likely.

15 THE CHAIRMAN: Mr Adair is just asking you about the

16 evidence in support of that proposition. He is asking

17 if you know of those figures.

18 MS WINTER: I know. I am not advocating that proposition,

19 sir. I am simply saying that, when you look at the

20 chain of events that we have described, that is one

21 conclusion one could come to.

22 MR ADAIR: Are you aware from the figures this Panel have --

23 I don't have them in front of me at the moment myself --

24 are you aware from the figures this Panel have that the

25 RUC have investigated hundreds, upon hundreds upon

1 hundreds of Protestants, Loyalist paramilitaries for

2 being involved in attacks on Catholics? Now are you

3 aware of that?


5 MR ADAIR: Do you commend them for it? Do you commend them

6 for it?

7 MS WINTER: I don't think it is my role to commend or not

8 commend them for doing their job.

9 MR ADAIR: I am asking you.

10 THE CHAIRMAN: Can I rephrase the question? Do you approve

11 of their achievement?

12 MS WINTER: My approval is tempered by the fact there are so

13 many unsolved murders in Northern Ireland and we work on

14 many of those cases and we see many instances where

15 opportunities to solve a crime have been lost.

16 MR ADAIR: Let me ask you a straight question.

17 MS WINTER: Although it is obvious -- can I not finish what

18 I am saying?

19 MR ADAIR: Let me ask you what the Chairman asked. Do you

20 approve of the fact that the RUC have brought many

21 Loyalists to book for the murder of Catholics? Do you

22 approve of that or not?

23 MS WINTER: I think whether I approve or not is irrelevant.

24 MR ADAIR: So you are not going to answer?

25 MS WINTER: I of course approve of the police doing their

1 job.

2 MR ADAIR: No further questions.

3 MS DINSMORE: Mr Chair, for the record I would take exactly

4 the same stance as my learned friend Mr Wolfe.

5 THE CHAIRMAN: Very well.

6 MR EMMERSON: Sir, I wonder if I might just put one or two

7 points of clarification to Ms Winter in her capacity as

8 a witness?

9 MR UNDERWOOD: Forgive me. I don't know where we got the

10 idea Ms Winter is a witness. She is not.

11 MR EMMERSON: From the Chair.

12 MR UNDERWOOD: In that case, I respectfully disagree with

13 it.

14 MR EMMERSON: The Chairman has invited questions for

15 Mrs Winter in her capacity as a witness.

16 THE CHAIRMAN: I think it is difficult not to regard

17 Mrs Winter in some realms a witness. While she is

18 saying, "These are alternatives I put before you", she

19 seems to speak also as though her mind goes with much of

20 what she says.

21 MR UNDERWOOD: She is not on oath.

22 THE CHAIRMAN: No, that's true.

23 MR UNDERWOOD: She has not come prepared with documents.

24 Her submissions are going to be subjected to examination

25 in the submissions of others and, of course, will be

1 subjected to a reference to the documents and materials

2 that you have heard. If anybody wants to cross-examine

3 her, then I would respectfully suggest she is given

4 an opportunity to see the documents upon which she is

5 being cross-examined and is put on oath.

6 MR EMMERSON: Can I indicate I am not intending to

7 cross-examine her on any documents, but merely seeking

8 clarification of the submissions that she has made.

9 Now, whether that is put to her in her capacity as

10 a witness or in her capacity as an advocate with myself

11 seeking clarification how she puts the case --

12 THE CHAIRMAN: If you say what is the clarification you

13 want.

14 MR EMMERSON: There were three points I wanted to clarify.

15 May I address the question to Ms Winter with your

16 permission.

17 THE CHAIRMAN: Yes, but just wait before you answer,

18 Mrs Winter.

19 MR EMMERSON: Mrs Winter, you made the criticism directed

20 towards the Office of the Director of Public

21 Prosecutions that it is regrettable that the trial of

22 the McKees preceded the prosecution of Atkinson and

23 others.

24 What I want to ask you, first of all, is what do you

25 say should have happened?

1 THE CHAIRMAN: I think I can answer that question. If you

2 tried to prosecute them all together, you would have got

3 a committal for trial of the McKees and there would have

4 been no committal for trial for the others, because

5 there would not have been any evidence against him.

6 MR EMMERSON: Precisely, sir.

7 THE CHAIRMAN: Very well.

8 MR EMMERSON: The second point I wanted to raise with you,

9 Mrs Winter, was you suggest that the DPP was at fault in

10 deciding to prosecute before receiving a post-mortem

11 report. Who is it you say he decided to prosecute

12 before a post-mortem report was received.

13 MS WINTER: Am I to answer that, sir?

14 THE CHAIRMAN: Do you know the answer to the question? If

15 you don't, just say so.

16 MS WINTER: I believe that the decision to prosecute the

17 original six suspects was made before the post-mortem

18 report had been received and certainly before the

19 complaint file had been received.

20 MR EMMERSON: You know enough about the evidence to be aware

21 that the six suspects were the subject of a police file

22 that was transmitted to the office of the DPP end of

23 July, beginning of August --

24 MS WINTER: Yes.

25 MR EMMERSON: -- with a recommendation to prosecute.

1 Correct?


3 MR EMMERSON: You know, do you, that in respect of five of

4 those individuals the prosecutions were, in fact,

5 discontinued by the DPP for various different reasons?


7 MR EMMERSON: And by the time any decision was taken to

8 prosecute anybody for murder, the only person being

9 Marc Hobson, the post-mortem report was available?

10 MS WINTER: Yes. I see the point you are making.

11 MR EMMERSON: I am trying to understand your criticism and

12 what it means.

13 THE CHAIRMAN: I think really it will be a matter you will

14 be able to make submissions upon. It depends whether

15 there was any lacuna in the evidence because of the

16 absence of a post-mortem report.

17 MR EMMERSON: Yes. Finally this. Another of the criticisms

18 that you levelled at the DPP was that after

19 Tracey Clarke and Timothy Jameson's statements had been

20 withdrawn you said the DPP didn't do enough to ensure

21 that there were no other lines of enquiry to secure

22 a conviction against Hanvey and Bridgett.

23 Are there any specific lines of enquiry you suggest

24 the DPP should have advised in respect of either of

25 those two individuals and, if so, what?

1 MS WINTER: Well, there was the whole question of

2 Allister Hanvey's alibi. In fact --

3 MR EMMERSON: Forgive me. Once Tracey Clarke's statement

4 and Timothy Jameson's statements had been withdrawn, the

5 judgment was reached that there was no evidence

6 sufficient to continue with the prosecution for murder.

7 So the alibi would have been irrelevant, wouldn't it?

8 MS WINTER: I am sorry. The reason I am pausing is because

9 of the way that you characterised what I had said.

10 I didn't actually say that -- I didn't say that

11 Allister Hanvey and Stacey Bridgett should have been

12 prosecuted. I said that not enough steps were taken to

13 see what other evidence there might be apart from those

14 two statements.

15 MR EMMERSON: What other steps do you say should have been

16 taken?

17 MS WINTER: There was evidence that put certain suspects at

18 the scene of the crime. There were allegations made by

19 other witnesses that suggested that some of them had

20 lied about their whereabouts and so on. There are a lot

21 of issues that were not followed at all by police, and

22 what does not appear from the evidence is that the DPP

23 at any time asked the police to look further than those

24 two statements.

25 MR EMMERSON: Can I just be clear? Do the organisations you

1 represent accept that after those two statements could

2 no longer be used in evidence there was insufficient

3 evidence to continue the prosecution of Forbes, Hanvey

4 and Robinson?


6 MR EMMERSON: Does your organisation accept that those men

7 had been in custody for six months and a decision,

8 therefore, had to be made at that stage as to whether

9 prosecution could continue?

10 MS WINTER: Yes, of course it did.

11 MR EMMERSON: Does your organisation accept it would have

12 been unlawful to continue with the prosecution if there

13 was insufficient evidence?

14 MS WINTER: Yes.

15 MR EMMERSON: Thank you very much.

16 THE CHAIRMAN: Yes, Mr McGuinness?

17 MR McGUINNESS: Sir, I intend to make a number of points

18 tomorrow disagreeing with some of the submissions made

19 by the BIRW and taking issue with what they say the

20 evidence is, but I don't know that that submission

21 necessarily requires me to put it to this witness, but

22 I would just want to let that be known.

23 THE CHAIRMAN: Thank you. Very well.

24 Then thank you very much, Mrs Winter.

25 We will take a quarter of an hour's break now.

1 (3.35 pm)

2 (A short break)

3 (3.50 pm)

4 THE CHAIRMAN: Yes, Mr McKillop.

5 Closing submissions by MR McKILLOP

6 MR MCKILLOP: Mr Chairman, members of the Panel, I make this

7 submission on behalf of D, E, F and Colin Prunty.

8 In our written submissions we focused on the

9 potential criticisms or adverse inferences which the

10 Panel may draw against the aforementioned witnesses.

11 If I could just briefly outline what those potential

12 criticisms are. In respect of D, E and F, they face two

13 possible criticisms. One is that they belonged to

14 a group which initiated the fight which led to

15 Robert Hamill's death. Secondly, which really flows

16 from the first, that they then falsely informed the

17 police that they were set upon without warning.

18 Colin Prunty, if you like, faces the more serious

19 potential criticism, in that it is indicated that he was

20 involved in starting the fight which led to

21 Robert Hamill's death.

22 Now, our written submissions concentrated on the

23 conflicting evidence that arose around those issues and,

24 in particular, how the trouble started at the bottom

25 Thomas Street and the junction of Market Street. That

1 involved analysing, not only the accounts of my clients,

2 but those other people who were with us or in our close

3 proximity, in other words, Maureen McCoy as well, and

4 taking the view and analysing the accounts of those

5 other witnesses who gave a completely different version

6 of events of how the trouble started.

7 Mr Chairman, I would just say our written

8 submissions in respect of those commence at page 222 in

9 the composite written submissions. We do not propose to

10 rehearse the analysis that we made in respect of the

11 various witnesses in respect of this account.

12 What I briefly wish to address the Panel on relates

13 to three matters that arise out of other people's

14 written submissions.

15 The first issue relates to those persons who

16 indicate that my clients were the trouble-makers being

17 described in the composite written submissions as being

18 independent witnesses. This arises at pages 93, 221,

19 270 of the composite written submissions.

20 First of all, if I could just briefly refer to the

21 first witness, P42, of which much has been said already

22 by Mr McGrory yesterday. This is a witness who

23 provides, in our respectful submission, an account which

24 is pro-police. His account is at [01038].


1 MR MCKILLOP: The relevant section I think is the third last

2 paragraph about three-quarters of the way down:

3 "The police tried to break up the small crowd,

4 without siding with either side, trying to calm the

5 situation, but having no success, they had to call for

6 more police to control the crowd."

7 Now, it subsequently transpired after P42's identity

8 became known that his newly-found girlfriend at that

9 time was the daughter of a retired police officer who,

10 in fact, had served in the Portadown area for

11 a number of years.


13 MR MCKILLOP: The next startling matter we wish to bring to

14 the Panel's attention is, when P42 was being interviewed

15 on 21st January 2006 by the Inquiry interviewers, he

16 stated that his anonymous letter was, and this is

17 a quote, "a statement there with a sort of an agenda".

18 Of course, in our respectful submission that begs

19 the question what the agenda was. In our respectful

20 submission, the answer may lie in the date on which the

21 letter was formally drafted and composed. You will be

22 aware that P42 did allege that the letter was written

23 the same day as the incident. My learned friend

24 Mr McGrory has already referred to the fact it is

25 somewhat strange that the letter commences on the day of

1 the fight. I would even draw the Panel's attention to

2 the fact that the letter ends:

3 "To my knowledge, this is as much as I can remember

4 about the night on which the fight took place."

5 Again, we say that would indicate that the letter

6 was not written as contemporaneously as P42 alleges.

7 THE CHAIRMAN: Why do you say that? If, according to P42,

8 this statement is made some time on the Sunday, then the

9 "night" when it took place could be the night of

10 Saturday, Sunday, could it not?

11 MR MCKILLOP: Yes. We would say in our respectful

12 submission it would be more likely to say "last night".

13 THE CHAIRMAN: So it turns on the use of "the night on

14 which" instead of "last night"?

15 MR MCKILLOP: Yes. Mr Chairman, you will see that the

16 letter is stamped with a date 29th May 1997.


18 MR MCKILLOP: The evidence was by P42 that, once the letter

19 was composed, he had given it to his future

20 father-in-law, who then apparently brought it to the

21 police the next day. So what we say, Mr Chairman, is

22 that if the letter was not written for a number of weeks

23 after the event, the situation was that there was

24 criticism in the public domain about the police

25 inactivity on the night of this incident, and that may

1 explain what we say the agenda was, which P42 referred

2 to in his Inquiry interview.

3 We also say, Mr Chairman, and it is relevant, that

4 in his interview -- and this was at page 39 of his

5 Inquiry interview -- he indicated that he probably would

6 not have provided an anonymous statement, had he not

7 spoken to P41 or his future father-in-law. In his

8 evidence he indicated that it was his father-in-law who

9 told him that it would be better to let the police know

10 anonymously what happened on the night of this incident.

11 So we say there is a query there about whether or

12 not -- how forthcoming P42 himself is about making this

13 particular statement and whether or not his future

14 father-in-law is having a guiding hand in the

15 background, and, therefore, that would have a direct

16 bearing on how independent or not he is.

17 THE CHAIRMAN: So we need to look at the father-in-law's

18 evidence and -- is it Hewitt?

19 MR MCKILLOP: Maurice Hewitt. He was not called as

20 a witness.

21 THE CHAIRMAN: He took the statement. Just remind me, was

22 he a friend or a police officer?

23 MR MCKILLOP: He was a retired police officer.

24 THE CHAIRMAN: Yes, I see.

25 MR MCKILLOP: In fact, just before I leave this point, he

1 was, in fact, approached by DC McCrumlish on

2 5th June 1997. Perhaps if we could have page [03600]

3 up, please.

4 It appears that Constable McCrumlish spoke to

5 Maurice Hewitt on 5th June 1997. You will see that took

6 place at his home and:

7 "He indicated he had spoken to a witness who had

8 witnessed the fight in Thomas Street/Market Street. He

9 stated the witness would not want to be interviewed.

10 Mr Hewitt undertook to have the witness outline his

11 version of the assault on paper and would hand it to the

12 police when ready."

13 We would say two things by that. Even by 5th June

14 1997, that tends to imply that the account still has to

15 be written. The second thing we say is that

16 Maurice Hewitt has firmly taken the decision that the

17 witness would not want to be interviewed. He's not

18 saying, "I know he is reluctant to come forward, but

19 I will go and speak to him again, in light of what you

20 have asked me, to see whether or not he is prepared to

21 come forward".

22 He seems to be taking a firm decision there and then

23 that the witness would not want to be interviewed.


25 MR MCKILLOP: The second witness then is William Jones. We

1 say that the relationship that he has with David Woods

2 precludes him from being considered an independent

3 witness. As the Panel all know, David Woods was

4 Mr Jones' then partner's brother, who was to

5 subsequently become his brother-in-law.

6 THE CHAIRMAN: That can do no more than call for caution on

7 our part in looking at his statement. It is not

8 a reason for saying he is therefore unreliable.

9 MR MCKILLOP: Not on its own, but, hopefully, in relation to

10 the second point I wish to make about Mr Jones, that

11 this is a person who allegedly witnessed this event, was

12 able to give three very detailed descriptions of three

13 of the males he said was involved in that event. I am

14 straying, Mr Chairman. I am conscious that I am

15 straying on to points I have already made in my written

16 submissions, but I will try to be as brief as possible.

17 He is also aware, because he tells us this in his

18 interview statement, that one of the persons that he

19 identifies he realises was Robert Hamill. We also know

20 from --

21 THE CHAIRMAN: Forgive me until I just see what that

22 signifies. Is he saying in the statement that he knew

23 Robert Hamill by sight or simply that he realises that

24 one man he has described is the dead man?


1 THE CHAIRMAN: That's all?

2 MR MCKILLOP: Yes. He doesn't ascribe to him whether he was

3 the person that struck the blow, was shouting sectarian

4 abuse, but one of the three people he described in his

5 statement he recognised was -- he realised was

6 Robert Hamill.

7 Also, to put the significance --

8 THE CHAIRMAN: Just ...


10 THE CHAIRMAN: But he doesn't say which of the three he has

11 described he is.


13 SIR JOHN EVANS: He was described as number 1, wasn't he?

14 MR MCKILLOP: Yes, but that part of his interview when he

15 says -- yes, I accept that description number 1 would

16 appear to be the one that would be most suited to

17 Mr Hamill, but he doesn't actually say that in his

18 interview statement. He says that he recognised -- he

19 realised that one of the three persons that he saw was

20 Robert Hamill. He doesn't say whether it was one, two

21 or three.

22 THE CHAIRMAN: So it is really a matter for us to look at

23 the description of Robert Hamill and the three

24 descriptions to see if there is any match with any them

25 and, if so, what significance we relate to that?

1 MR MCKILLOP: My point is slightly different, Mr Chairman.

2 My point is this: notwithstanding that he has witnessed,

3 allegedly witnessed, a serious assault in which his

4 partner's brother has been assaulted, and

5 notwithstanding all of the media outcry that followed

6 this particular event, Mr Jones never makes himself

7 available to the police. That's the point.

8 The first we hear of Mr Jones is following the

9 arrest of Mr Woods, which was on 15th May 1997. During

10 that interview, Mr Woods gives an account of what he

11 said happened to him in Thomas Street --


13 MR MCKILLOP: -- which ultimately ended in Mr Woods being

14 rescued off the street by his sister and his sister's

15 boyfriend.


17 MR MCKILLOP: Mr Woods, following giving that account to the

18 police, was detained in custody overnight whilst the

19 police went and checked that story, because it was on

20 16th May 1997 that both Carol Ann Woods and

21 William Jones made their first police statements.

22 THE CHAIRMAN: Is that before or after Jones' release?

23 MR MCKILLOP: Woods is arrested on the 15th. He makes his

24 allegations on the 15th. It is close to midnight by the

25 time that interview ends. He's kept in custody

1 overnight whilst the police go and interview his sister

2 and Mr Woods.

3 THE CHAIRMAN: In other words, they were interviewed before

4 he was released?


6 THE CHAIRMAN: Thank you.

7 MR MCKILLOP: That, Mr Chairman, is the point.


9 MR MCKILLOP: Because their statements were sufficient to

10 secure his release without charge.

11 THE CHAIRMAN: Now, do you say that because that is the

12 evidence or is that an inference you ask us to draw?

13 MR MCKILLOP: That's the evidence, the undisputable

14 evidence, as I understand it.

15 THE CHAIRMAN: An officer has said, "That's why we released

16 him".


18 THE CHAIRMAN: That's what I am asking you.

19 MR MCKILLOP: That last part of my statement is

20 an inference. I apologise.


22 MR MCKILLOP: The third group of witnesses are really the

23 Jameson bar staff. I don't think I need to address the

24 Panel about whether they are independent or not, because

25 their substantive evidence against my clients and those

1 who were coming down Thomas Street is of such little

2 value. They are not able to identify who it was that

3 was making the noise. There is no causal link between

4 the time that they allege the shutters or the windows

5 were banged, and being aware then, subsequently, that

6 there was a confrontation had occurred at the bottom of

7 Thomas Street. We say the evidential value of their

8 evidence is so weak that I don't really need to address

9 you whether they were independent or not.

10 The final two witnesses who make allegations against

11 my clients and the Catholic group generally are

12 Andrew Allen and David Woods. Both of them were

13 arrested as suspects. So evidently they are not

14 independent.

15 THE CHAIRMAN: I am not sure it is quite accurate to say

16 that, because they were arrested as suspects, therefore

17 they are not independent. That may depend on what the

18 evidence about them is, may it not?

19 MR MCKILLOP: Yes. Well, just in relation to David Woods,

20 the format of the composite --

21 THE CHAIRMAN: David Woods' own evidence suggests that he

22 was quite close to what happened. He says minding his

23 own business.

24 MR MCKILLOP: Minding his own business. We did attempt to

25 precis his account of his interview statement to the

1 Panel in our additional materials, but I feel that we

2 didn't do credit to it, because, if you are tempted to

3 give any credence at all to the evidence of David Woods,

4 I would respectfully invite the Panel, despite the vast

5 amount of materials you have to read, to go back and

6 fully read the account of, not only his interview

7 statement, but his police interview of his events that

8 night starting from 7 o'clock, drinking in the town

9 centre, going to the Coach nightclub and coming back,

10 and his evasive answers about who he was with, who he

11 spoke to and whatever. It almost defies belief. In

12 fact, it does defy belief.

13 So we respectfully submit that, yes, just because

14 Mr Woods may have been a suspect, that doesn't

15 necessarily preclude him from being an independent

16 witness, but we would respectfully submit when you look

17 at his evidence in the round and in total, you would not

18 be able to attach any evidential value to at all

19 THE CHAIRMAN: He had, of course, a mark on his cheek, his

20 sister says.

21 MR MCKILLOP: Did he? Again, this is a matter that we have

22 raised in our written suspicions -- written

23 submissions -- submissions and suspicions. There is

24 a dispute about that.


1 MR MCKILLOP: His sister says, when she brought him into the

2 flat, that he was injured. Mr Jones said he checked him

3 and didn't see any mark on him. I think that from

4 recollection, when Mr Woods was being interviewed by the

5 police, he denied that he was injured, but when he gave

6 evidence to this Inquiry, he said that he was.

7 THE CHAIRMAN: Sometimes a witness' evidence is like the

8 curate's egg: good in parts.

9 MR MCKILLOP: Yes, but we do not accept he was injured, in

10 our respectful submission.

11 THE CHAIRMAN: I might tell the truth about you, but be

12 reticent about what I say concerning myself?


14 THE CHAIRMAN: We have your point.

15 MR MCKILLOP: Thank you. Mr Chairman, the second issue is

16 the rather delicate one concerning the alleged -- not

17 the alleged -- the fall-out between the Hamill family

18 and some of D's family. This arises at page 221 of the

19 composite written submissions.

20 It is stated:

21 "It is not without significance that there has been

22 a family fall-out between some members of the Hamill

23 family and D's family who were present on Thomas Street

24 that night. The evidence of P132 at page 108 was:

25 "Question: Well, tell us this: why do you not get

1 on with the Hamills?

2 "Answer: Pardon?

3 "Question: Why do you not get on with

4 Martin Hamill?

5 "Answer: Because he tortured my sisters.

6 "Question. What do you mean he tortured your

7 sisters?

8 "Answer: Well, he accused them of not doing enough.

9 "Question: Not doing enough in what respect?

10 "Answer. The night of -- they should have been

11 killed, more or less, than Robert.

12 "Question: They should have been?

13 "Answer: Saying Robert was killed, that they didn't

14 do enough to protect him.

15 "Question: Did you say, 'They should have been

16 killed more than Robert'?

17 "Answer: No, it was a slip of the tongue."

18 Then the following part of the submission is:

19 "Whilst it is correct to say that simply because

20 a person lies about one issue, it does not mean to say

21 that they are necessarily lying about another issue,

22 their lies go to the core of the night's events and,

23 therefore, any of their evidence which suggests police

24 inactivity cannot be relied on."


1 Mr Chairman, the significance of the fall-out is not

2 immediately apparent to me, but I don't want to pass

3 a matter up without having to at least address the

4 issue. If it is being alleged that it is significant

5 because my clients -- and when I say "my clients", I am

6 not speaking about Colin Prunty, because he doesn't seem

7 to be involved in this, but D, E and F were somehow or

8 in some way responsible for the outbreak of violence on

9 this particular night, we reject that completely.

10 We would remind the Panel that the potential

11 criticisms, at their highest, which those three people

12 face is that they were part of a group that was involved

13 in the trouble that night. There is no evidence

14 whatsoever against either of those three clients that

15 they said anything or did anything or hit anybody which

16 was responsible for this fight breaking out.

17 Alternatively, if it is alleged that it is

18 significant because we have not told the truth somehow

19 about the real reason for this fall-out, and, therefore,

20 that taints the rest of our evidence --


22 MR MCKILLOP: -- the only person who was questioned about

23 that was D. I accept that in his answers he didn't want

24 to tell the Tribunal and the Panel what the real reason

25 was, saying, "You have to ask Martin Hamill".

1 THE CHAIRMAN: So he was not forthcoming.

2 MR MCKILLOP: No. He said, "You will have to ask

3 Martin Hamill".

4 Then if I go on, Martin Hamill subsequently gave

5 evidence before the Tribunal. It was indicated that may

6 have been to do with a compensation claim that they

7 initiated.

8 The point I wish to make is this. Notwithstanding

9 D's reluctance to discuss it, which the Panel,

10 I respectfully submit, may find understandable --

11 break-ups in families can happen in the best of families

12 and it is not necessarily something they want to talk in

13 public about, but what I want to say is this. E and F

14 were never questioned about that. Accordingly, they

15 can't be accused of lying about this issue, because they

16 were never asked about it. Accordingly, if the Panel

17 feels that D's evidence has been tainted on this, that

18 certainly does not apply to E and F


20 MR MCKILLOP: The third issue which arises out of the

21 submissions, Mr Chairman, is at page 915 of the

22 composite written submissions. It is just in the middle

23 there. It arises out of Mr McComb's submissions where

24 it is said:

25 "It is stated that Mr Prunty's evidence is so

1 inconsistent that, even if he had identified Lunt, this

2 would have been of little value."

3 Whilst it is clear beyond peradventure that

4 Mr Prunty wrongly identified Forbes, that alone, in my

5 respectful submission, does not reflect badly on his

6 evidence. The reason for that is it has long been

7 recognised that particular care has to be taken in

8 respect of identification evidence

9 THE CHAIRMAN: Well, you are assisted there, aren't you, by

10 Mr Kerr's assessment, who doesn't simply say, "He seemed

11 to be truthful", but said he didn't, even when given the

12 opportunity, elaborate, embroider, what he had to say.

13 MR MCKILLOP: Yes. So my initial point is this: even the

14 most truthful and convincing witness can get it wrong

15 when it comes to identification. He wrongly identified

16 Forbes in November, I believe, 1997. So that's more

17 than six months beyond the date of the incident.

18 Now, as regards the other inconsistencies in his

19 evidence, yes, they are inconsistencies, but we think it

20 is pertinent to remind the Panel about the backdrop in

21 which these events occurred and, in that respect, the

22 attack was sudden, it was ferocious, it involved a large

23 crowd who were loud and aggressive.

24 We say that the fear that one can detect in

25 Constable Cornett's voice, how she radioed for back-up,

1 is perhaps the best indicator, more than words, about

2 the grim reality of what it was like actually on the

3 scene.

4 We would ask the Panel to accept how much worse

5 would it have been for my clients, who were involved

6 right at the centre of this violence. So we say this

7 was not a fertile background or environment for

8 witnesses like Mr Prunty to be able to observe, absorb

9 and take in the events that were going on around him.

10 Allowances must have to be made for that in respect of

11 discrepancies which may arise in his account

12 THE CHAIRMAN: Sometimes advocates forget that witnesses are

13 human and they are not video cameras with a 360-degree

14 coverage.

15 MR MCKILLOP: Yes, indeed.

16 THE CHAIRMAN: Some see one thing and others are looking

17 somewhere else and see something else.

18 MR MCKILLOP: Thank you, Mr Chairman.

19 Mr Chairman, those are the three issues that we have

20 identified in other people's written submissions.

21 If I could conclude just by saying this. The

22 potential criticisms which the Panel may find in respect

23 of my clients are very serious ones insofar as my

24 clients are concerned


1 MR MCKILLOP: We also say that the behaviour that they are

2 accused of is inherently unlikely, given the

3 circumstances in which they found themselves. We say it

4 is inherently unlikely that they would have behaved or

5 provoked or initiated an attack, because, first of all,

6 they were aware of the risk they were taking as

7 Catholics walking down into the Portadown town centre.

8 Not only were they aware that they were taking

9 a risk, but we say it's extremely unlikely that they

10 have behaved in the manner which is alleged against

11 them, because my clients saw the police Land Rover and

12 they were reassured by its presence.


14 MR MCKILLOP: Therefore, it is literally one of those

15 situations where it defies belief that my clients,

16 within sight of this Land Rover, would either bang

17 shutters, rattle windows at Jamesons Bar, shout

18 sectarian slogans or initiate a fight.

19 Because of those -- because it is inherently

20 unlikely and because the criticisms are serious, we say

21 that there would have to be strong or cogent evidence

22 for the Panel to be satisfied on the balance of

23 probabilities that they did that, and, of course, if

24 there was strong, cogent evidence in that regard, of

25 course the Panel could, on the balance of probabilities,

1 make such a determination, but we say, when you examine

2 their evidence in respect of that, there is no such

3 cogent or strong evidence.

4 The reason that we say that is that the two main

5 witnesses who allege that this group of people were the

6 trouble-makers are P42 or, alternatively, William Jones,

7 but we say that those two accounts are so different in

8 the detail that they are mutually exclusive and that

9 they are not capable of corroborating each other.


11 MR MCKILLOP: We say that each account on its own carries

12 little or no weight.

13 In particular, in relation to P42, we say you can't

14 attach any weight to an account which is given

15 anonymously, and then, when his identity becomes known,

16 he suffers from amnesia.

17 THE CHAIRMAN: Just explain that a little bit more, will

18 you? You say "when his identity becomes known". When,

19 very roughly, was that?

20 MR MCKILLOP: That seems to have been -- I am not sure. It

21 seems to have been -- he seems to have been interviewed

22 before he was married around 2000.

23 THE CHAIRMAN: So about three years later?

24 MR MCKILLOP: Yes. He was interviewed by a police officer

25 in Portadown Police Station for a period of two hours.

1 It was before he was married. He was questioned about

2 this when he gave evidence by my learned friend

3 Mr McGrory. He had been dropped off at the police

4 station by his future wife. She collected him a couple

5 of hours later. He was then red and very uptight and

6 had alleged he had been given a tough time in the police

7 station.

8 That, as far as we know it, was some time before

9 they were married, which seems to have been in 2001.

10 They were married in 2001. This may have happened in

11 the year 2000.

12 For example, he is then questioned by the police

13 officers in 2006.

14 THE CHAIRMAN: About three years after the event, he was

15 interviewed by the police. Is that it?


17 THE CHAIRMAN: He said he couldn't remember anything?

18 MR MCKILLOP: We don't know. There is no record of that

19 interview. That's one of the things that we haven't

20 been able to find.

21 THE CHAIRMAN: Then my note, I think, is wrong. What I have

22 written is, "When his identity becomes known, he suffers

23 from amnesia, and that's about three years after the

24 event". Let me start again.

25 He was interviewed or seen by the police about three

1 years after the event, but we have no record of what he

2 said?

3 MR MCKILLOP: We have no record of that.

4 THE CHAIRMAN: Then he is interviewed next by the Inquiry.

5 Is that it?

6 MR MCKILLOP: No, he is approached by the police, I believe,

7 in October 2006. I believe it may have been Detective

8 Sergeant H. He is essentially fobbed off at that point,

9 because P42 says, "I have just had an accident at work.

10 I am not very well. I can't speak to anybody for six

11 weeks".


13 MR MCKILLOP: Then that is followed up by a further

14 interview at P42's home in November 2006.

15 THE CHAIRMAN: By the police?

16 MR MCKILLOP: By the police, yes.

17 THE CHAIRMAN: Is that when he says he can't remember?


19 MR UNDERWOOD: I am sure it is a slip of the tongue.

20 I think that's 2002 in both cases.

21 THE CHAIRMAN: Which one is 2002?

22 MR UNDERWOOD: Both of the 2006 references, I think.

23 THE CHAIRMAN: I have written November 2006. Should I have

24 written 2002?

25 MR UNDERWOOD: According to our records, yes.

1 MR MCKILLOP: I apologise. I have been told that is

2 correct.

3 THE CHAIRMAN: October 2006, that should be 2002?

4 MR UNDERWOOD: Correct.

5 THE CHAIRMAN: Thank you.

6 MR MCKILLOP: So for those reasons, we say that P42 is not

7 a credible witness.

8 THE CHAIRMAN: We did, of course have, a medical report,

9 didn't we, which we considered in the case of P42?

10 Correct me if I am wrong, Mr Underwood.

11 MR UNDERWOOD: Almost certainly, but it wouldn't have been

12 distributed to the other parties.

13 THE CHAIRMAN: Of course not. I was not going to mention

14 its contents.

15 MR UNDERWOOD: My recollection is you did have a medical

16 report.

17 THE CHAIRMAN: Baroness Richardson points out that was about

18 the question of anonymity which we had to decide, but it

19 was a medical report which therefore touched on or dealt

20 with his mental state.

21 MR MCKILLOP: Obviously I am not privy to that. So my

22 remarks would be sort of subject to what's contained in

23 respect of the medical evidence.


25 MR MCKILLOP: Then finally, Mr Chairman, we say that, on the

1 other hand, William Jones' evidence is worthy of little

2 currency because it is our respectful submission that,

3 had the police not arrested Woods, neither the police

4 nor any of us would have been ever aware of Mr Jones'

5 version of events.

6 THE CHAIRMAN: I think perhaps, particularly in Portadown at

7 the time, one should be a little cautious before saying,

8 because he didn't volunteer when the police came to him,

9 that what he said isn't to be relied upon.

10 MR MCKILLOP: Well, I would have two matters to respond to

11 in relation to that.

12 First of all, he never said to the police, "Listen,

13 I didn't come forward because I was afraid or because

14 I am living in Portadown, and that's something I was

15 concerned about". He never made that case.

16 Again, this is something we refer to in our written

17 submission. He even had the brazen audacity to say to

18 the Inquiry interviewers, "I can't remember whether

19 I went to the police or the police came to me", which,

20 in our respectful submission, we say speaks volumes.


22 MR MCKILLOP: The final matter was, arising out of his

23 Inquiry interview, he was at pains to tell his

24 interviewers that he used to serve in Portadown as

25 a member of the British army alongside the police in

1 Portadown.

2 So, Mr Chairman, for all those reasons, we

3 respectfully request that the Panel rejects the

4 potential criticisms against all of my clients.

5 THE CHAIRMAN: Thank you very much, Mr McKillop.

6 10.30 tomorrow morning.

7 MR UNDERWOOD: Yes. The sequence of submissions to be

8 addressed to you tomorrow is in something of a state of

9 flux. It may well that be we have a short day for

10 various reasons.

11 THE CHAIRMAN: I see. Very well. 10.30 and we will see

12 what the day brings.

13 (4.45 pm)

14 (The hearing adjourned until 10.30 tomorrow morning)


16 --ooOoo--










1 I N D E X


Closing submissions by MS JANE ................... 1

5 Closing submissions by MR McKILLOP ............... 62






















Associated Evidence

Reference Title Description
Letter from P42 (01038)
HOLMES A206 (03600)
Note of Consultation (17591)
Note - Anthony Langdon (39692)
Inquiry Statement D_Supt Cooke (80203)
Inquiry Statement Sir Ronnie Flanagan (80266)
NIO Guidance to Chief Constable (73337)