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Hearing: 14th December 2009, day 74

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Held at:


20-24 York Street



on Monday, 14th December 2009

commencing at 10.30 am


Day 74




1 Monday, 14th December 2009

2 (10.30 am)

3 THE CHAIRMAN: Yes, Mr Green?

4 Closing submissions by MR GREEN

5 MR GREEN: Good morning, Panel. I make the submissions on

6 behalf of Marc Hobson.

7 Sir, I believe I will be roughly an hour, if that's

8 any use to anyone who is coming behind me.

9 Sir, we have heard a considerable amount of evidence

10 about events that took place, effectively in a very

11 short period of time, at the Thomas Street junction in

12 Portadown on 27th April 1997. There was no doubt that

13 at that moment in time, sir, there was a confrontation

14 that spoke of deep political and cultural differences.

15 Within that crowd of Protestants were men who seized

16 on the moment -- there was no doubt about that -- to

17 bring an end to the life of a young man. It has so many

18 ingredients of the worst side of our community seen all

19 too often in the years of the so-called troubles.

20 Into that mix were the police, who were caught

21 somewhat in the middle.

22 There is no doubt, sir, that none of the Protestants

23 had gone out that night to end it off kicking

24 an innocent Catholic to death, but that is what

25 happened. None of the Catholics, sir, had gone out that

1 night with any idea that one of them would not make it

2 home that night, but that, unfortunately, is what

3 happened.

4 The police had gone out, no doubt, on duty, hoping

5 for a peaceful and quiet night's duty, and they would

6 endeavour to do their duty, no doubt, to the best of

7 their ability. The question before this Panel is: did

8 that happen?

9 Even in the history of Portadown, sir, the events of

10 27th April 1997 were extraordinary, and extraordinary

11 events, as we know, create extraordinary reactions.

12 Sometimes they make a hero out of a person and sometimes

13 it makes a coward out of a person. Sometimes it will

14 make a liar, a villain and, indeed, a victim.

15 This Inquiry has had to consider what this

16 extraordinary event made of the various people that

17 night and in the days, weeks, months and years later.

18 It is perhaps understandable, sir, that the unravelling

19 of this event involving the perspectives of so many

20 people and the interests of so many people was never

21 going to be an easy one.

22 With that in mind, one has to acknowledge that the

23 work of this Inquiry team has been considerable and the

24 manner in which it has discharged its duty a credit to

25 all those involved. I know credit and praise has been

1 made of the team by other advocates and I lend my

2 appreciation to them. It was not an easy task. If,

3 indeed, any of the interested parties came to this

4 Inquiry with any preconceived conception that there

5 might not be the will to get at the truth of events,

6 those have been dispelled with considerable force.

7 The truth may never be known about every event that

8 happened that night and in the weeks, months and years

9 later, but it is abundantly clear that every possible

10 effort has been made to get at the truth.

11 The potential allegations made against Marc Hobson

12 in this Inquiry fall into two categories, two camps.

13 One, clearly the more serious, is that he participated

14 in the attack that directly led to Mr Hamill's death

15 and/or that he took part in an affray, either in the

16 general sense alleged by Timothy Jameson or

17 Jonathan Wright, or perhaps in a more limited sense as

18 alleged by Constable Neill.

19 The bulk of our submissions, sir, before the Panel

20 will concentrate on the first ten minutes of the event,

21 because it is our submission that the unravelling of

22 many of the strands in this Inquiry must start by

23 unravelling the critical events that occurred in that

24 ten-minute period, perhaps from the time the warning was

25 given. I know there are important events that occurred

1 before that, but critically, we say, in that ten-minute

2 period a lot of the very critical events, in fact, occur

3 that this Inquiry has been trying to unravel.

4 If one looks at it in terms of a journey with a set

5 of directions, if you take a left instead of a right

6 right at the very start, then you have no chance of

7 arriving at your destination, and no matter how

8 faithfully you try to follow the directions thereafter,

9 religiously you may try to, you will get lost. There is

10 an inevitability about it.

11 This Inquiry has spent years trying to unravel the

12 events and consequences of what we know was, in fact,

13 a very short period of time. We know in the criminal

14 courts sometimes months are spent trying to unravel

15 a very, very short period of time, sometimes even less

16 than a minute.

17 We say the most critical moment is that ten minutes

18 or so, from Mr Mallon's intervention to the arrival

19 perhaps of the back-up crew. Again, many important

20 events happened after that, but critically we say it is

21 during this period that unquestionably most of the

22 important events occurred: the warning, the distraction,

23 the ultimately fatal attack on Robert, the pulling from

24 the Land Rover of Constable Neill and the more

25 widespread outbreak of violence. The question of the

1 participation of any of the persons for acts of violence

2 occurs in this period, and the observations of

3 Tracey Clarke, Timothy Jameson and Jonathan Wright all

4 occur in this ten-minute period of time.

5 The question we say that must be answered, sir, is:

6 were the Land Rover telling the truth about their

7 observations and about what they did during that

8 ten-minute period of time? Once all the events were

9 over and the crew returned to Portadown station, they

10 had a clear choice to make, we say: tell it exactly as

11 it happened without regard to the consequences upon

12 themselves; or to deliberately make up what had happened

13 in an effort perhaps to conceal their own failings,

14 their own sympathies or allegiances. Those are matters

15 the Panel will have to conclude, whether, in fact, there

16 were these allegiances or failings. Did they act with

17 honesty or integrity?

18 If one starts with the observation that almost

19 certainly, and it is certainly the position I start

20 with, that Reserve Constable Atkinson's accounts have

21 been untruthful for the most part, one can legitimately

22 ask: did the rot start and end there?

23 We submit, sir, that there is material which

24 supports the argument that both Constable Neill and

25 Constable Atkinson lied in the course of this Inquiry.

1 These lies, we say, were not mere coincidences, but were

2 orchestrated in an effort to achieve three things: the

3 deflection of criticism in the face of neglect of duty

4 allegations; the covering up of Reserve

5 Constable Atkinson's tipping-off; and a united front

6 perhaps by other members of the Land Rover crew, apart

7 from Constable Neill and Reserve Constable Atkinson.

8 The basis for our submission, we say, is dealt with

9 in a number of headings, or, more importantly perhaps,

10 questions, the answers to which we say point strongly to

11 considerable question marks over the evidence that they

12 have given to the Inquiry.

13 The first question we ask the Panel to consider is

14 one that I know has been touched on by other speakers,

15 and that is: when was Robert Hamill put to the ground?

16 When Reserve Constable P40 gave his evidence, he was

17 asked, you might remember, sir, by Mr Underwood whether

18 there was a discussion about -- I think the question

19 was:

20 "Question: ... what on earth they were going to say

21 to explain how a Catholic was very seriously injured

22 while the four of them sat in the Land Rover having

23 a cosy chat after being warned?"

24 P40 was then accused of putting a story together and

25 of lying.

1 For ease of reference, sir, that was on 26th March,

2 page 28 of the transcript. I don't need to go to the

3 transcript, but that's the citation.

4 The allegation then was put to him of sitting in the

5 Land Rover while fighting was going on, and this was

6 repeated, by which time, when you look at the

7 transcript, sir, you will see that Constable P40 had

8 clearly decided he had had enough and he failed to

9 answer. In fact, on the transcript there is "Silence.

10 Failure to answer". Then his questioning ceased by

11 Mr Underwood.

12 We submit, sir, that the preponderance of the

13 evidence supports the view expressed in those questions

14 of Constable P40 and that is that Robert Hamill was

15 felled very rapidly while the Land Rover crew were

16 inside the vehicle. The Panel will have to infer that

17 from all of the evidence. There is not a single strand

18 of evidence that says conclusively that is what

19 happened, but in terms, sir, of the inferences that you

20 have been asked to consider, and there have been many in

21 the course of this Inquiry, this, perhaps, we say, is

22 one of the strongest.

23 The most compelling evidence perhaps is that

24 a member of the public was moved enough to go to the

25 Land Rover and complain that the police had sat there

1 and watched it happen. I think all of the Land Rover

2 crew claim that there were no bodies on the ground when

3 they first alighted from the vehicle, and I know some of

4 them -- the argument has been made maybe it is not just

5 as crystal clear as that. There might have been things

6 stopping them from seeing that, but certainly Reserve

7 Constable Atkinson and Constable Neill were very, very

8 clear on that. Sir, I think I will come to that in due

9 course

10 THE CHAIRMAN: The words "watched it happen" seem to refer

11 to a particular event.

12 MR GREEN: Yes, indeed. For reasons I hope we will go

13 into --

14 THE CHAIRMAN: We shall have to ask if that's right, and, if

15 it is, what event?

16 MR GREEN: Indeed. Sir, what else, we say, could have

17 caused the unidentified person to pull Constable Neill

18 from the vehicle?

19 We say it is unlikely in the extreme that any other

20 development could have caused the man to approach the

21 police in the way that he did, as, indeed, I think is

22 suggested by the PSNI's submissions, which we say is

23 pure speculation. I think they raise the possibility

24 that Carol Ann Woods may have struck a Catholic man at

25 the entrance to Thomas Street -- or a report by

1 Carol Ann Woods that a Protestant may have been struck

2 or may have struck a Catholic at the entrance to

3 Thomas Street leading to a retaliatory blow on another

4 man and a chase.

5 We say, sir, that it is practically inconceivable

6 that that would lead to the sort of visit to

7 a Land Rover in a situation where there was a heightened

8 state of alert in the country, and any police officer

9 being approached by someone in a Land Rover pulling at

10 him is very likely to have a very swift response in

11 normal circumstances. These police officers are

12 trained. They certainly would react very adversely to

13 someone doing that, save in wholly exceptional

14 circumstances.

15 Sir, whilst it is not impossible that this idea

16 could have led to a complaint from either side, we say

17 it is quite ridiculous to infer that of all the things

18 that were happening, anything short of a very traumatic

19 event had caused this man to make the complaint. The

20 man's complaint, when one looks at it, was not

21 a complaint of a situation that was showing signs of

22 deterioration, which -- a slap or something of violence,

23 but inconsequential in the scheme of things, we say,

24 sir, that is a situation that's showing signs of

25 deterioration and would not call for the sort of

1 complaint that was made by this person, whomever he was.

2 The complaint of this person was of a situation that

3 had deteriorated, and he must have been motivated by

4 something very, very strong to make that journey from

5 wherever he was to that Land Rover and to intervene in

6 the dramatic way that he did.

7 Of course, it has been suggested that it is possible

8 the Land Rover crew's evidence on this very issue might

9 be honest, in that they may not have seen the bodies on

10 the ground when they first alighted due to the affray

11 and general mayhem on the ground. So the possibility

12 exists that there was so much going on that the police

13 really, if Robert was on the ground, might not have seen

14 it. This deals with the evidence of whether the police

15 were being honest about what the state of affairs were.

16 We say there was little scope for any such argument,

17 and whilst it is accepted that the scene was a confused

18 one, the consistent evidence of Constable Neill and

19 Reserve Constable Atkinson was as clear as it could be

20 on the issue. The two men were not on the ground when

21 they alighted from their vehicle and they saw them very

22 shortly after they had been put to the ground. In fact,

23 I think Reserve Constable Atkinson even claims he saw or

24 may have seen the attack on Robert Hamill that must have

25 put him to the ground.

1 It is our simple proposition, sir, that if

2 Robert Hamill was on the ground by the time the

3 Land Rover crew got out of their vehicle, then it calls

4 into serious question Constable Neill could have seen

5 what he claimed he saw Marc Hobson do. It does so, sir,

6 we say on two fronts.

7 Firstly , if the Panel conclude that Robert was,

8 indeed, already on the ground when Constable Neill was

9 in the vehicle, then he has lied, that is

10 Constable Neill has lied, to the Inquiry on a core

11 issue, because, we say, of the clear manner in which he

12 dealt with the question before the Inquiry.

13 The only example I will give of it, sir -- and there

14 are plenty in the transcripts where he steadfastly

15 adheres to this idea there were no bodies on the

16 ground -- is pages 81 and 82 of the transcript on

17 19th May. It is Mr McGrory's final question and,

18 indeed, most of -- indeed a lot of the cross-examination

19 of Constable Neill by Mr McGrory was dealing with this

20 very issue. This really summed up the position:

21 "Question: Constable Neill, will you listen very

22 carefully to the wording of this question?

23 "Answer: Yes.

24 "Question: Are you prepared to accept that you might

25 be mistaken on the question of whether or not

1 Robert Hamill was on the ground when you got out of the

2 Land Rover?

3 "Answer: No."

4 That was Constable Neill's get-out opportunity. In

5 all of the situation, with all of the confusion and all

6 that had happened, might I be wrong? He was not even

7 prepared to accept that. So his evidence, sir, on that

8 issue could not have been clearer.

9 Reserve Constable Atkinson's oral evidence at

10 page 62 of his transcript, when he was asked about this

11 very issue, he equally claimed that no-one was on the

12 ground when he got out of the vehicle. He has been

13 consistent in that regard through the various accounts

14 that he has given

15 THE CHAIRMAN: This is 19th May still?

16 MR GREEN: Yes. I am not sure whether Reserve

17 Constable Atkinson's evidence was then.

18 Constable Neill's evidence was on 19th May. Reserve

19 Constable Atkinson's -- I will certainly find the

20 relevant portion for you, sir.

21 THE CHAIRMAN: Thank you.

22 MR GREEN: The importance of the lie, certainly from

23 Constable Neill, is that it is one that he has

24 maintained for many years, and even, despite given that

25 opportunity by Mr McGrory, steadfastly refused to move

1 from it. So it is an important lie.

2 Secondly, we say if Robert Hamill was already on the

3 ground, it makes it very much less likely that

4 Constable Neill would have been able to see him kick at

5 Robert Hamill. It doesn't make it impossible, sir.

6 I have to accept that, but it significantly limits the

7 opportunity he would have had to observe him. It

8 shortens significantly the time available for him to get

9 out, become involved in the various fights he described,

10 go back and forth to the Land Rover, attend

11 Robert Hamill, then get into a fight that Reserve

12 Constable Atkinson was involved in, from which position

13 he fortuitously sees Marc Hobson kick at Robert Hamill.

14 I think in one of the notes provided by

15 Mr Underwood, submissions about alleged attackers note

16 from a number of weeks ago, the question was asked:

17 "Question: What was the state of disorder when

18 Constable Neill was pulled from the Land Rover?"

19 Mr Underwood submits:

20 "The primary issue may be whether the attack was

21 over before the police got out of the Land Rover. This

22 raises a number of questions about the actions of

23 suspects. If the attack was indeed over, then the

24 police have lied about seeing Marc Hobson and other

25 unidentified individuals kicking at Mr Hamill. So it

1 would be necessary to consider the evidence which the

2 Land Rover officers gave which was capable of

3 identifying Mr Hobson as an attacker."

4 That, of course, presupposes that the injury and the

5 violence from the group, including that of Marc Hobson,

6 was, in fact, over. I suppose that's self-evident.

7 There certainly would be a possibility, but a very

8 limited one, that constable Neill could have seen it if,

9 in fact, that which put Mr Hobson (sic) to the ground

10 had already occurred.

11 The purpose of the lie which we say is a clear lie

12 from Constable Neill was most probably to stave off

13 criticisms that he sat there and watched it happen.

14 Lord Justice McCollum in the judgment in the Crown Court

15 trial against Marc Hobson, having heard

16 Constable Neill's account of his actions, observed in

17 his judgment that it raised a reasonable doubt as to

18 whether he was being truthful when he described the

19 scene as he looked across the street after dismounting

20 from the Land Rover. In considering why he might have

21 lied about such a matter, he observed:

22 "The untruthful purpose might have been to protect

23 his own and fellow officers in the face of criticisms

24 publicly made against them."

25 Sir, for the Panel's ease of reference, that is

1 page 8747 of the documents before the Inquiry.

2 We submit that this observation of

3 Lord Justice McCollum was correctly made.

4 The question we legitimately ask following from

5 this, sir, is: was Constable Neill telling the truth

6 about what the state of disorder was? We say clearly

7 not. Secondly, was he telling the truth about what he

8 saw Marc Hobson do? We say not.

9 The importance of the issue was not lost on the DPP

10 in the prosecution of Hobson for murder because there

11 was a live issue at the trial as to whether the police

12 had been out of the Land Rover at the time that would

13 have enabled Constable Neill to witness what it is he

14 alleged against Marc Hobson, and it was a problem for

15 the prosecution we say.

16 That is obviously why Reserve Constable Atkinson, of

17 all the witnesses, but Reserve Constable Atkinson was

18 called as a witness at the trial. That was to give

19 a little padding, so to speak, to the evidence of what

20 the state of disorder was, and, of course, Reserve

21 Constable Atkinson was effectively saying the same thing

22 as Constable Neill. The incident had not occurred yet

23 when Robert Hamill been put to the ground.

24 His use as a witness was considered and approved, of

25 course, despite the fact that he was at the same time,

1 and had been for a considerable period of time, under

2 investigation for other matters, very serious matters,

3 that this Panel and this Inquiry has had to consider.

4 It is for others, perhaps, to comment on this, as it

5 perhaps contrasts with the Department of Public

6 Prosecutions Office's use of Andrea McKee. We make no

7 submissions on that. It is simply one of those matters

8 that, of course, the Panel will have to consider.

9 The view was obviously taken by the DPP, sir, in

10 advance of the trial that any concerns about Reserve

11 Constable Atkinson as a witness, in effect, did not and

12 could not affect his value as a witness in support of

13 Constable Neill.

14 That's probably true, if you can isolate things and

15 contain them, and in many respects, perhaps, in an ideal

16 world, it didn't affect the quality of his evidence on

17 the issue of what he was able to say in support of

18 Constable Neill, but the decision whether or not to

19 attack Constable Atkinson at trial on this material was

20 a tactical one by the defence. On the lie of the

21 evidence at the time, position number 1 as defence

22 counsel would have been to secure an acquittal on the

23 murder charge before the court. That was achieved and

24 did not require defence counsel to get into a debate

25 with the High Court judge on questions of collusion,

1 which that would have no doubt raised. So the matter

2 was not raised before the trial. Tactically, it did not

3 require such an attack and the DPP gamble to that extent

4 paid off, because he was not attacked on that issue. It

5 did not remove its importance to this Panel, this

6 Inquiry.

7 The basis for the inference we ask the Panel to make

8 is, of course, the untraced person's allegation that

9 they sat there and watched it happen. Now, the PSNI's

10 submission say the police, if they were of a mind to

11 take steps to avoid the blame for Mr Hamill's injuries,

12 could have prepared statements that didn't make

13 reference to Mr Mallon or to the man who spoke to

14 Constable Neill.

15 That is perhaps true, but, when you analyse that,

16 the PSNI seem to be saying that the open accounting for

17 the warning and the accusation in their statements is in

18 some way a measure of their honesty and that some regard

19 should be had to that, but, of course, Mr Mallon's

20 warning was independently verified by Mr Mallon himself

21 and the Land Rover crew could not risk not giving

22 information, because it immediately involved them in

23 a very personal way and any failure to mention it in

24 their accounts would inevitably rebound disastrously on

25 them. They had no choice other than to mention the

1 accusation

2 THE CHAIRMAN: My immediate reaction is that censorship of

3 that kind would have been of a very dubious propriety.

4 MR GREEN: Indeed. They had no choice other than to mention

5 it. Therefore, putting it into their statement is not

6 in any way a measure of honesty. It's a realisation

7 that, whatever has happened, they need to account for

8 what members of the public are going to be able to say.

9 In fact, they had no idea that the person who came

10 over and accused them was not going to come forward,

11 but, of course, Bridgett and Forbes independently

12 accounted for that. So the position is it is no measure

13 of their honesty that they put it into their statements.

14 The simple fact is, sir, had they not put it in, there

15 would have been very good evidence that, in fact,

16 something had happened of a very serious nature that was

17 not accounted for, and it involved them, as I say, sir,

18 in a very personal situation. This was a conversation

19 between Forbes and Bridgett and this was an accusation

20 in their presence by a member of the public.

21 We say that Constable Neill has been put forward,

22 certainly by his counsel, as an honest and an impressive

23 witness and any impression that he has served up before

24 this Inquiry we say was designed to cover up his

25 failings and his dishonesty. There were high stakes for

1 him and others and a significant motive to lie.

2 A number of matters, sir, we say are particularly

3 germane to highlight the fact that he did lie. One was,

4 if one looks at the police evidence alone, their

5 evidence, except for Constable Neill, sir, was

6 consistently that the purpose of the police immediately

7 was to push the crowd back and form a police line and

8 that that was the priority.

9 Any officer so engaged in controlling the crowd,

10 that is the Protestant crowd, who were intent on causing

11 more injuries to Catholics, in particular to those on

12 the ground, they would almost certainly have had to have

13 their backs to the Catholics who were on the ground.

14 The evidence we say on that, sir, is set out in our

15 written submissions. They are voluminous and I don't

16 wish to repeat them for the purposes of these oral

17 submissions, but they are found, sir, for ease of

18 reference at pages 370-374 of the written submissions.

19 The consistent picture that emerges in those

20 extracts of the evidence is that the crowd were intent

21 on getting at Robert Hamill and D at all times. They

22 had put them to the ground and they were not letting it

23 go at that. There was evidence, and ample evidence,

24 sir, when you look at the material that we have

25 highlighted in those extracts, ample evidence that that

1 was not good enough. In fact, I think Reserve

2 Constable Atkinson in his evidence at the Hobson trial

3 said, despite his best efforts at keeping the crowd

4 back, they were getting in round behind them. Other

5 police were trying their best to contain that situation.

6 The clear impression created from all of these

7 police officers, that is certainly initially those who

8 were in the Land Rover, was that they were trying to

9 push the crowd back, hold the crowd and contain them and

10 stop them getting at Robert

11 THE CHAIRMAN: Are you able to give a chapter and

12 paragraph reference? I ask that, because the pagination

13 in the electronic copy is not the same as the pagination

14 in the hard copy.

15 MR GREEN: I have the hard copy, sir. It is at page 370,

16 sir. I have taken the reference from the electronic

17 version, sir. I rather hoped it would coincide with ...

18 THE CHAIRMAN: Speaking selfishly, if you have it on the

19 electronic ...

20 MR GREEN: I will certainly do my best to help you. I think

21 it starts at page 369.

22 THE CHAIRMAN: This is in the hard copy?

23 MR GREEN: This is in the hard copy.

24 THE CHAIRMAN: Have you got a chapter and paragraph number?

25 I shall probably be working from the electronic copy.

1 MR GREEN: It is the entries below -- let me just find it

2 for you, sir. I have 2.21 at page 269, sir,

3 identification of suspects module. It is four

4 pages into that, sir, the references begin. They go on

5 for certainly three or four pages -- five or more pages.

6 I don't think the matter needs to be ventilated. Those

7 are where the extracts will be found.

8 That deals, I think, very much with all of the

9 materials that are before the Panel. That would be the

10 materials before the trial and the materials before this

11 Inquiry, including the oral evidence.


13 MR GREEN: So the consistent picture that emerges from those

14 extracts is that the crowd were intent, as I say, on

15 getting at Robert at all times. The Land Rover crew

16 were intent on keeping the crowd off Robert at all

17 times, and that that crowd control involved pushing the

18 Protestant crowd up towards St Mark's Church.

19 Now, we can't say this with an absolute exactness,

20 but very generally, sir, and very consistently, the

21 powerful message coming from those extracts is that is

22 what was happening.

23 When Constable Neill came to give evidence at

24 Mr Hobson's trial we say he would have realised that, in

25 order to have been able to see Robert Hamill being

1 attacked, he would have needed to have been looking

2 straight at him or at least have him in front of him.

3 I think certainly the extracts that I have read from

4 Reserve Constable Atkinson and the back-up police

5 officers who arrived were saying basically they were

6 pushing the crowd and that the Catholic people, and

7 that, in particular, includes Robert Hamill and D, were

8 behind them.

9 Now Constable Neill in the Hobson trial recalled

10 that there was no-one else other than the man with the

11 goat beard standing over Mr Hamill. That's at page 8600

12 of the bundles. He did not see anyone stamping on the

13 two men on the ground, although he saw the person with

14 either a glass or bottle running towards him. There

15 were perhaps 70 or 80 people by this stage. He was in

16 the middle of a fight when he saw this -- that's at

17 page 8605 -- trying to separate another fight, and

18 that's when he got a glimpse of what was happening over

19 at Robert Hamill's body.

20 In effect, sir, this was evidence he repeated before

21 this Inquiry, where I think starting at page 86 of his

22 evidence he said:

23 "A male, late 20s, round face, with goat beard and

24 very short hair wearing a leather-type, soft, casual

25 waistcoat was near me and I saw him kick at the injured

1 man I now know was Robert Hamill."

2 He believed this was accurate and he was involved in

3 other fights at the time. Marc Hobson was 10 to 20 feet

4 from him. He had a clear view of him. In evidence he

5 gave it at 20 to 30 feet, a male with a goat beard and

6 was moved back as best possible. He did not know who

7 moved him back. Mr Hobson was the only person he saw at

8 Robert Hamill.

9 Sir, those extracts are contained between pages 86

10 and 94 of his evidence on 19th May.

11 Regarding the fight in which he was assisting

12 Reserve Constable Atkinson when he saw Hobson kick out

13 at Robert Hamill, he could not provide -- and we say

14 this is important -- one jot of information about the

15 descriptions of the persons who he says he was engaged

16 in trying to control in fight. That's at page 8606,

17 which is the transcript of the trial, and at page 99 of

18 his evidence before the Panel.

19 Constable Neill gave evidence on the issue of what

20 he would have been able to observe at a time when he was

21 containing a hostile crowd with a large number of people

22 between him and Robert Hamill. He claimed that he was

23 fortunate enough to have caught a glimpse of Hobson in

24 the middle of the situation. That's at page 102, sir.

25 In order to do that, Constable Neill would have had

1 to look through the crowd he was trying to contain in

2 a hand-to-hand confrontation. He accepted that, sir.

3 That's at page 103.

4 He was then referred to a snapshot and he marked,

5 sir, and I do wish the IT perhaps to bring up the

6 snapshot that Constable Neill provided.


8 MR GREEN: If we could perhaps split the screen with his

9 transcript of this. Again, it is at page 101 of his

10 evidence on 19th May. I will just wait for the IT crew.

11 We could not do that. If we can have, please, the

12 screen with the transcript of 19th May.

13 THE CHAIRMAN: While we are just waiting for that to come

14 up, it seems to me that on the hypothesis that Hamill

15 had already been laid to the ground before the

16 Land Rover crew got out of the vehicle, that doesn't

17 exclude other people at least wanting to have a go at

18 him, because the crowd round him was obviously a hostile

19 crowd.

20 MR GREEN: I have to accept that, sir.

21 THE CHAIRMAN: It seems your point largely turns on whether

22 or not Neill would have had his back to Hamill.

23 MR GREEN: Yes. If I could just maybe scroll up to

24 page 100. I think there is a question I asked:

25 "Constable Neill, I am going to move on, if I may,

1 to what you actually claim you saw the person with the

2 goatee beard doing."

3 Then I go through what it is he claimed in his

4 statement. Then at the bottom of page 100:

5 "Question: Where in relation to that -- I know that

6 the distance is somewhere between 10 and 20 feet -- was

7 this fight taking place? Were you facing the crowd that

8 you were trying to contain?

9 "Answer: We were somewhere in the middle of the

10 junction there.

11 "Question: Could we maybe get the map up or the --

12 yes. Where do you think you were, if we have that map?

13 Where do you think you were?

14 "Answer: It is hard to say, but it would be on the

15 Thomas Street side of the -- of

16 Market Street/High Street.

17 "Question: Perhaps if we give you a pen. There is

18 a pen, I think you can now just make an X where you

19 think you were.

20 "Answer: I couldn't say with any degree of

21 accuracy, but somewhere about there.

22 "Question: Somewhere about there. Now, could you

23 just indicate also where the crowd was that you were

24 trying to contain? Was it to the right of that mark or

25 to the left of that mark?

1 "Answer: They would have been in front of me on the

2 Thomas Street side.

3 "Question: So just below the mark then?

4 "Answer: Yes. Just in there.

5 "Question: In there. Maybe we could make a number 1

6 beside where you were and perhaps a number 2 generally

7 speaking where the crowd was.

8 "Now, doing your best, how many were in that crowd

9 do you think?"

10 If we then perhaps move -- sir, the third mark on

11 the map, in fact, was Mr Hamill, and that's dealt with

12 further down in the transcript, sir, before we move off

13 that. Number 1 is the police, number 2 is the crowd and

14 number 3 is Mr Hamill.

15 If we could perhaps move to the snapshot now. You

16 will see from that, sir, that number 1 is the police in

17 the traffic island area, number 2 is the crowd that were

18 involved in the fights, and number 3 is Mr Hamill and D

19 generally speaking.

20 The importance of this, sir, is that this is a very

21 early stage where Constable Neill claims he was with

22 Reserve Constable Atkinson, and if they were involved in

23 crowd control, that is the dynamic as far as

24 Constable Neill recalled.

25 It is the only juxtaposition and placement of

1 people, sir, that affords Constable Neill an opportunity

2 of seeing what he claimed. We ask the question, sir: is

3 that why in his statement dated 27th April 1997

4 Constable Neill referred to what he was doing as

5 "assisting in getting the crowd back up the street".

6 That is what he says in his statement on

7 27th April 1997, he was involved in trying to get the

8 crowd up the street.

9 When it dawned on him that this would prove to be

10 a problem, because he, if he was doing that, would be

11 pushing the crowd up street away from the Catholics, how

12 on earth could he see Mr Hamill and the defendant in;

13 that situation?

14 THE CHAIRMAN: Just before you go on, Mr Underwood, it might

15 help the Panel if what we have on the screen now could

16 be put on to our encrypted laptops.


18 THE CHAIRMAN: Is that possible?


20 THE CHAIRMAN: With a note on how to get there?

21 MR UNDERWOOD: Yes. Quite.

22 MR GREEN: Sir, is that why he changed that to -- on every

23 other account that he was asked to provide for this

24 after November 1997 at any time he is asked to account

25 for what he was doing, he doesn't talk about assisting

1 in getting the crowd up the street. He starts talking

2 about being involved in fights.

3 We say, sir, is that why, when his statement was put

4 to him in evidence at this Inquiry -- that is at

5 pages 86 and 87 for your ease of reference, sir -- when

6 his statement of 27th April was put to him at this

7 Inquiry and it was put to him that he had said he was

8 keeping the crowd back, he replied:

9 "Yes, I believe I was involved in one or other

10 fights."

11 We submit that this was a very deliberate and subtle

12 correction so as to maintain the consistency of his

13 account. We say there is a very big difference, and

14 I will be honest with you, sir, it is a difference that

15 at the time escaped me, and had it not, I would have

16 pursued that line of enquiry, but it is there and we

17 think it is writ large what the difference is between

18 those two. He was correcting me. He wasn't and could

19 not associate himself with crowd control. He had to be

20 involved in a fight, because that's the only position

21 from which he could have hoped to have seen

22 Robert Hamill.

23 If he was pushing the crowd back and they were

24 trying to get at Robert Hamill, Robert Hamill would have

25 been behind him.

1 His account in any event, sir, is contradicted by

2 the back-up police officers. We can't be absolutely

3 certain when they arrived, but their evidence on this,

4 sir, at page 385 of the written submissions -- I am just

5 checking, sir, to make sure that the reference is still

6 right

7 THE CHAIRMAN: 385 is the electronic version.

8 MR GREEN: It is the electronic version, if you can work

9 from that, sir. Certainly Constable Silcock, at

10 pages 385 and 386, we think gives one of the very first

11 accounts of what the scene was. He confirms they were

12 trying to hold the crowd back. They were trying to push

13 him back towards St Mark's church. We say if you look

14 at Constable Silcock as one of the earliest accounts of

15 what the scene was, it really does throw into sharp

16 relief the account given by Constable Neill.

17 We submit, looking at the evidence of the police on

18 the ground, the primary objective of keeping the crowd

19 off Robert and away from him required, as a matter of

20 logic, placing themselves between one and the other. On

21 Constable Neill's account he is the only one to do

22 anything other than that and he does it, sir, for a very

23 specific purpose, because anything other than that does

24 not afford him the opportunity of seeing Marc Hobson.

25 Sir, if the Panel needs something else really to

1 judge against that notion of logic that we put before

2 the Panel, consider this: if, in fact, Constable Neill

3 is right in what he says, and his snapshot is correct,

4 the very thing that every single police officer gave

5 evidence about would be wrong. Every single other

6 police officer gave evidence that this crowd were not

7 fighting the police. This crowd were fighting

8 Catholics. Where were the Catholics on that snapshot,

9 sir? The Catholics were behind the crowd, and there

10 would have been absolutely nothing to stop that crowd

11 turning round and attacking further Robert Hamill and D

12 on the ground, because, if Constable Neill is correct,

13 Robert Hamill was exposed to the very threat that every

14 single other police officer says they were there to

15 protect him from.

16 That snapshot, sir, is something I don't think can

17 be argued against, but I leave that for others perhaps.

18 If I can move on, sir, there is an absence, we say,

19 of any support for the view of what happened given by

20 Constable Neill from a very important source and that is

21 the Catholic witnesses.

22 If you look at what the Catholic witnesses had to

23 say about this matter , if we could perhaps bring up

24 page 344 of the written submissions, if that's possible.

25 Wrong again. Sir, I will certainly endeavour to provide

1 the correct reference for that, but it is the account

2 given by Maureen McCoy, Prunty and others. The Catholic

3 witnesses who were in attendance at the general area,

4 sir, were of the one voice, that Robert was never left

5 alone. From the time he went to the ground, he was not

6 left alone. I know there was some evidence that some of

7 the witnesses said that they walked over to the

8 Land Rover, but the preponderance of the evidence on

9 what was happening to Robert after he was put to the

10 ground was that he was not left alone.

11 You would think, sir, if there was any source or any

12 type of witness who would not be slow in coming forward

13 to say what someone else did it would be what a Catholic

14 witness would be prepared to say a Protestant person did

15 to their loved one or their friend. They would not shy

16 from that, sir.

17 THE CHAIRMAN: Would whoever was with him have needed time

18 between Robert Hamill going to the ground and getting to

19 him?

20 MR GREEN: Well, they were with him, were they not? It asks

21 the same question, sir. Whether they were -- needed to

22 get to him or never left his side, the focus of

23 attention from them was Robert.


25 MR GREEN: There was nothing, sir, that was going to

1 distract any friend or family of Robert Hamill, nothing.

2 Nothing at all would distract them from what was

3 happening to their loved one. I don't want to be

4 flippant about it, so I will not suggest any rhetorical

5 possibilities. It simply would not happen, sir, that

6 a family member would do anything other than look after

7 and be concerned about, and it throws back to the

8 question that Constable Neill answered in the

9 affirmative, that he claims he saw this attack or this

10 attempt at an attack at a time when Robert was

11 vulnerable, at a time when his family and friends were

12 concerned about him, but not one single Catholic witness

13 was able to say at all that it happened, and they were

14 asked specifically about that.

15 Sir, when you read, sir, that transcript citation is

16 correct on the version I have looked at and I will

17 provide certainly the correct one of it, because I know

18 you have a lot of documents to look through. There are

19 about seven witness statements and witnesses who deal

20 with this issue that are all Catholics and they all to

21 a man say he was not left alone and there was no-one

22 came up and attacked him.

23 Secondly, could Constable Neill have seen a kick at

24 all? His account of seeing Hobson kicking at

25 Robert Hamill was not supported by any other witnesses,

1 as I have already said, Catholic, Protestant or police.

2 There is an absolute dearth of material. One can say

3 what one likes about the confused state of affairs, but

4 the clear impression from Constable Neill's account is

5 that really this happened as an isolated event, all the

6 more reason why you would have thought there would have

7 been something by way of support from other police.

8 It cannot be explained by the chaos, confusion and

9 disorder. The time-line strongly supports, we say, the

10 view that, once he was felled, his relatives and other

11 police were in attendance very quickly. His claim that

12 he saw this kick at while he was dealing with a fight is

13 a lie. It is a manifest deliberate lie. There was

14 simply never an opportunity for Robert Hamill to be left

15 alone and exposed like this. There is no evidence in

16 support of any window of opportunity.

17 His account of the kicking itself, sir, is riddled

18 with inconsistencies and riddled with doubt, and shows

19 and exposes the lie that he told to this Inquiry. It is

20 dealt with, sir, and I am going to deal with this in

21 full reference, at pages 109-118 of his evidence on

22 19th May. If that could be brought up: this is the

23 transcript of the evidence.

24 If we could just go up a couple of lines from where

25 you were there. Thank you. He is shown a copy of his

1 notebook entry, page [09826] is the reference in the

2 document:

3 "Question: ... the middle third of that, you really

4 deal with the same incident that you have recorded in

5 your statement -- isn't that right -- the part of your

6 statement we have read over a few times:

7 "'Some scuffles still ongoing. Other police

8 arrived'.

9 "Answer: Yes.

10 "Question: 'During this, male, late 20s, goat

11 beard, leather waistcoat seen kicking male on ground

12 outside Eastwoods'.

13 "Now, the only difference between that and your

14 statement is in your statement you have 'kicking at' and

15 in your notebook entry you have 'kicking'.

16 Do you see that?

17 "Answer: Yes.

18 "Question: What were you trying to convey in both

19 of those documents, Constable Neill?

20 "Answer: That he was swinging his foot at

21 Mr Hamill. Whether his foot contacted with Mr Hamill,

22 I can't say.

23 "Question: That's not in your notebook entry, is

24 it?

25 "Answer: A notebook entry is an aide memoire, not

1 a formal statement. It is only to give you ...

2 "Question: Are you saying that your statement

3 then -- if we can just bring that up again."

4 The reference is given for that.

5 "The Chairman: How soon after you made your

6 notebook entry did you make your statement?

7 "Answer: I couldn't honestly say ...

8 "Mr Green: Can you remember which you made first,

9 your notebook or your statement?"

10 If we can just scroll down:

11 "Answer: No, I can't remember.

12 "Question: But certainly one was copied off the

13 other. Is that right?

14 "Answer: No, it is not copied, no. If it was

15 copied, then the notebook entry would go on for several

16 pages.

17 "Question: If we look at your statement, the bottom

18 third of that again:

19 "During this, a male, late 20s ... was near me and I

20 saw him kick at the injured man I now know as

21 Robert Hamill'.

22 "Were you meaning to convey in that statement that,

23 in fact, the kick didn't make contact with Mr Hamill?

24 "Answer: No. I am saying that he was swinging his

25 foot, kicking at him. I don't know whether it actually

1 made contact with him or not.

2 "Question: So you were trying to convey that you

3 weren't sure whether the foot made contact. Isn't that

4 right?

5 "Answer: Yes.

6 "Question: Why didn't you say that in your

7 statement?

8 "Answer: Well, you can read it either way. You can

9 read it many ways.

10 "Question: You would have to infer that, Constable

11 Neill, wouldn't you? It may be a matter of comment

12 whether it is an easy inference to make, but you would

13 have to make that inference from your statement that it

14 was a kick at which never connected or you weren't sure

15 connected. Isn't that right?

16 "Answer: Yes.

17 "Question: Why didn't you clear that up by saying,

18 'Well, it was a kick at, but I wasn't sure whether it

19 landed or not'?

20 "Answer: I didn't see my statement again until some

21 time later and I wasn't run over the whole thing either.

22 "Question: With all due respect, this is

23 an important document you are putting your hand to,

24 isn't it?

25 "Answer: Yes, I know it is. You are trying to make

1 out I am making light of it, which I am not.

2 "Question: No, I am not saying that at all,

3 Constable Neill.

4 "Answer: Sorry. That's the way you are coming

5 across to me.

6 "Question: What I am asking you is: why, when you

7 were putting your hand to this important document and

8 the information that you sought to convey was that the

9 kick didn't connect, or you weren't sure if the kick

10 connected, didn't you simply add that into your

11 document?

12 "Answer: I don't know.

13 "Question: You don't know?

14 "Answer: Hindsight, yes, it would have been ideal

15 to have put exactly what happened.

16 "Question: Do you remember being interviewed under

17 caution in September of that year?

18 "Answer: Yes.

19 "Question: Bring page [09427] up, please.

20 "Now you are dealing with the crowd at the beginning

21 of that:

22 "'Answer: They were getting abuse. And I was

23 trying to keep them back and it was about that stage

24 that the fella with the goatee beard --

25 "'Question: The goatee beard?

1 "'Answer: Yes. He's identified as --

2 "'Question: You, you identified him?

3 "'Answer: Marc Hamill.

4 "'Question: Hobson?

5 "'Answer: Hobson, Hobson.

6 "'Question: Aha.

7 "'Answer: Marc Hobson. I believe -- I believe that

8 I saw him kick Hamill or the person that was lying at 9,

9 which I believe is Hamill --"'.

10 "I think that's a mark you made in a map.

11 "'Question: Aha.

12 Answer: -- in the head. It was not -- it wasn't --

13 he didn't jump on his head, it was just a straight --

14 "'Question: A straight kick?

15 "'Answer: Straight kick.

16 "'Question: Uh-huh. Well, what did you --

17 "'Answer: And at that, I had already been over to

18 Hamill and he was -- his breathing was really rasping.

19 "'Question: Uh-huh'."

20 "Are you seeking to convey by that that this was

21 a kick at, but you were not sure whether it made

22 contact? Is that what you mean by that passage?"

23 I think, sir, realistically he had to concede:

24 "Answer: No".

25 Then he is asked:

1 "Question: What are you saying in that passage?

2 "Answer: From what it sounds like, it sounds like

3 he actually kicked him.

4 "Question: it not only sounds like it, that's

5 exactly what you are saying. Isn't that right?

6 "Answer: Yes.

7 "Question: So, looking back, does that refresh your

8 memory?

9 "Answer: No. I wouldn't be able to say either way.

10 "Question: But why were you telling the interviewer

11 in that interview that it was a kick -- it was a

12 straight kick in the head, if, in fact, what you meant

13 to convey by your statement made within hours of the

14 event was that you weren't sure whether it made contact

15 or not? Do you see the difference in those two

16 accounts?

17 "Answer: Oh, yes, I can see the difference in them,

18 yes."

19 Then he is referred to page [09430], top of the

20 page. I think this is back to the September interview,

21 the ICPC interview:

22 "'Answer: But at the same time he was already down

23 on the ground', this is Mr Hamill, 'and he had already

24 -- I don't know what had happened to him.

25 "'But the -- there was a bit more -- a bit more

1 happened to him than he kicked him. He wasn't -- he did

2 -- it wasn't as if he really -- it was a -- what was it?

3 Oh, I don't know. It wasn't a, you know, really vicious

4 kick. He kicked him, but it wasn't as -- as vicious as

5 you would -- you know, somebody may have done'."

6 "What are you seeking to convey in that passage,

7 Constable Neill?

8 "Answer: That's a good question. I presume from

9 that my own reading of it was that I had seen his

10 foot -- I had seen him kicking at Mr Hamill, but it

11 wasn't as if Mr Hamill's head was, you know, lifted off

12 the ground or anything like that, you know, but

13 I couldn't honestly say at this stage.

14 "Question: Do you want to think about that just

15 a little more? Because some people may think that makes

16 absolutely no sense, Constable Neill, at all, that you

17 would need to do a lot of inferring to come up with that

18 as what you were trying to convey there?

19 "Answer: Uh-huh. I can't honestly say.

20 "Question: You were then asked, a number of months

21 later, to give a second statement dealing with --

22 actually, it was a third statement dealing with the

23 events on the 27th. Isn't that right? We have that at

24 page [09672].

25 "Do you remember making that statement?"

1 Sir, you will remember this is the statement that

2 Mr Kerr had directed be obtained from Constable Neill:

3 "Answer: Yes.

4 "Question: Who asked you to make that statement?

5 "Answer: Detective Sergeant Bradley.

6 "Question: Now, Detective Sergeant Bradley, do you

7 remember what he asked you? Do you remember what the

8 premise of that further statement was?

9 "Answer: It was just in relation to that particular

10 incident.

11 "Question: Did he come to you and say,

12 'Constable Neill, we need a clarification on whether you

13 saw a kick or a kick at, and what you, in fact, remember

14 seeing'?

15 "Was it set up like that?

16 "Answer: I can't honestly remember.

17 "Question: Were you told that there was some

18 concern as to exactly what it is you had seen?

19 "Answer: No, I wasn't told of any concern.

20 "Question: Well, when you came to make that

21 statement, had you any difficulty recalling, in fact,

22 the events of 27th April?

23 "Answer: I can't honestly remember now.

24 "Question: Why, when you were preparing that

25 statement, Constable Neill, didn't you talk about the

1 straight kick you told the investigators in September?

2 "Answer: Unfortunately, I didn't have all my

3 interview notes and statements to my hand.

4 "Question: But what you did have was something more

5 important than that, Constable Neill. You had your

6 memory.

7 "Answer: Also --

8 "Question: You had the recollections --

9 "Answer: Also --

10 "Question: -- of you being present --

11 "Answer: Also --

12 "Question: -- on the scene?

13 "Answer: Sorry, also, I had been interviewed

14 several times by that stage.

15 "Question: All the more reason why the matter should

16 be perhaps a bit more crystal clear in your mind?

17 "Answer: No, not necessarily, not necessarily.

18 "Question: So the more you are asked about an event,

19 the greater and the more probing the questions, the more

20 clarity or confusion arises out of it for you?

21 "Answer: I can't say now at this stage. I mean,

22 I didn't have all the information sitting in front of

23 me. I wasn't sat down and said, 'Look, that's what you

24 have said. That's what you have said. That's what you

25 have said. Can we clarify this?'.

1 "Question: Uh-huh, but you --

2 "Answer: If that was the situation, I probably

3 would have been able to be very clear about exactly what

4 had happened, and --

5 "Question: But you had no difficulty, I suggest, for

6 a reason I will go on to in a moment, in November 1997

7 saying exactly what you meant by that, had you?"

8 The passage goes on. I think that gets the flavour

9 of the what effectively the constable -- and the mess we

10 say in terms of evidence he got himself into in these

11 various accounts.

12 Now, looking at this, why on earth would you want to

13 cross-examine in with a witness that your client, you

14 know, has been accused of a straight kick? That

15 couldn't have gone in at the trial. To this Panel, this

16 Inquiry, it is a different matter, because all of the

17 issues have been ventilated. This shows, sir, for

18 a reason I will explore a little later that

19 Constable Neill was not telling the truth.

20 It is curious that, yes, in pulling back and saying

21 less of a client's or defendant's involvement that you

22 seek to put it before a Panel as something that in some

23 way undermines a witness. It does in Constable Neill's

24 case undermine him, because the focus of a tension when

25 he came to make his I think it was 21st November

1 statement, was very much on his evidence.

2 Now we will never know why, if he did lie, he

3 decided to lie in the first place. It may be that he

4 felt in ascribing a small role to someone, a kick or

5 kick at in the overall scheme of a situation where a man

6 was very seriously injured, it really didn't matter. He

7 had to be seen to be doing something and seeing

8 something. There may well be reasons, sir, and it is

9 perhaps more speculation, because there would not be

10 evidence on this, but there may well be reasons why

11 Constable Neill would not want to go near anyone else

12 such as Mr Hanvey, Mr Bridgett or Mr Forbes, but felt

13 much more at home in putting something against

14 Mr Hobson.

15 Whatever the circumstances and whatever the

16 situation that prevailed at the time that made him tell

17 that lie, what made him reel back from it? We say, sir,

18 the focus of the attention was coming on to him, and it

19 may have been an attack of conscience in some regard

20 that he could not see and could not live with himself

21 that the only evidence against a man on a charge of

22 murder was going to be his. It was a lying account, and

23 that we say is a proper inference for this Panel to

24 draw, that armed with a lie, he couldn't and wouldn't go

25 ahead with the lie, because a man might have been

1 convicted of murder on it, but he couldn't, he couldn't

2 totally dismiss it and he couldn't totally forget about

3 it, because he had, in fact, on a document put his name

4 and effectively committed himself to an involvement of

5 Marc Hobson.

6 We say, sir, for the reasons we have already set

7 out, it was a lie and he wouldn't have had

8 the opportunity, and the reason why he was reeling back

9 from it we will never know. We submit it was an attack

10 of conscience of some sort.

11 Sir, there is also, I suppose, in support of the

12 fact that he simply has given a role to Mr Hobson for no

13 good reason, or certainly a reason that we can put our

14 finger on, when you look at the other evidence he has

15 presented to this Inquiry and to the Hobson trial, there

16 is an inability, and you will recall this, sir, of him

17 to describe practically anyone else who was at much

18 closer quarters to him. The many fights he got into,

19 the people he was involved in going to the Land Rover

20 with, those fights, very, very, little detail, and yet,

21 with the very limited time that he would have had to see

22 Mr Hobson, he gives a very, very graphic description of

23 him.

24 Sir, you will find those referred to in the

25 transcripts of the evidence at pages 94 and 96 --

1 sorry -- our written submissions at pages 94 and 96

2 THE CHAIRMAN: I suppose a goatee beard is not all that

3 common and it is something, if you see a man's face, you

4 would be likely to note.

5 MR GREEN: It may well -- certainly Marc Hobson was in

6 Portadown that night. There is no doubt about that. On

7 his own evidence in Portadown. Quite how far into the

8 situation he came --

9 THE CHAIRMAN: And he did have a goatee beard?

10 MR GREEN: He did have a goatee beard. We have heard

11 Mr xxxxx had a goatee beard. We have not heard from

12 Mr xxxxxxx, but we know he had a goatee beard.

13 There are substantial question marks over his

14 ability to give that description of Marc Hobson and his

15 inability to provide any descriptions of any note about

16 many people he was in much closer quarters to. As

17 I say, we set that out at pages 94 and 96 of the

18 evidence when Constable Neill was cross-examined about

19 it on 19th May.

20 The other, question, sir, and I will move swiftly

21 through this, is whether other police officers got their

22 descriptions and identifications of Mr Hobson right,

23 because the correctness of the identification evidence

24 from Constable Cooke and possibly P40, he didn't

25 identify, he gave a general description of someone who

1 may or may not be Marc Hobson, may be central to an

2 issue of whether Marc Hobson was closer to the action

3 than he was prepared to admit.

4 A resolution of that question against him does not

5 automatically mean that he was engaged as alleged by

6 Constable Neill, Jonathan Wright, Timothy Jameson and,

7 ultimately, Tracey Clarke, but there is, and we have to

8 accept, evidence from other police officers and perhaps

9 most notably P40 and Constable Gordon Cooke that would

10 tend to suggest he was much closer in on the action than

11 he had previously been prepared to accept.

12 The question we ask is whether the investigation

13 dealt properly with the gathering and consideration of

14 the evidence that suggested Mark xxxxxxx and not

15 Marc Hobson was involved. You know, sir, that we have

16 put the image of Mark xxxxxx on the system. It may well

17 that be there is a comment to be made about that. I see

18 Mr Underwood looking over at his staff. I trust that

19 has been done, sir.

20 MR UNDERWOOD: I thought the agreement was that it would be

21 shown only to the interested parties and the Panel, but

22 not be put on the system.

23 MR GREEN: Mr Underwood is right. I trust that image is

24 available for the Panel.

25 In our submission, the alibi for Mr xxxxxx was

1 accepted on nothing more than a hunch. They just

2 believed the alibi's account. The danger is that that

3 acceptance falls into the trap of, "Well, we have

4 Mr Hobson in custody. Mr xxxxxx is not Mr Hobson.

5 Eliminate Mr xxxxxx from the equation and you have

6 a nice neat Hobson".

7 That's a little cheekily put, sir, but it really in

8 effect sets out what we say was perhaps the situation

9 that existed, remembering, of course, sir, there was

10 a tremendous amount of pressure no doubt on the police

11 to make arrests, and we appreciate that the police

12 worked in a very charged environment, particularly

13 following the sort of assault and ultimately death, of

14 course, of this particular night.

15 When you look at the alibi, sir, the alibi was not,

16 in fact, an alibi, and coming from a defence practice,

17 if you had that witness lined up in support of your

18 defendant's presence somewhere else and your instructing

19 solicitor walked in -- they were waving this sheet of

20 paper with a supposed alibi, a defence counsel worth his

21 salt would spend about a minute and a half and say

22 "Don't even bring him to court".

23 He was drunk in this person's company and for the

24 crucial moments, not just an hour, an hour and a half,

25 I think it was about nine or ten hours from 7.30,

1 possibly 9.30 the previous evening until 11.30 , if my

2 maths is right, which is a period of 14 hours, he was

3 not in his supposed alibi's company.

4 Now that, sir, I think, speaking from anyone who

5 practises in the defence field, you would not use

6 a witness like that. "Don't even bring him to court.

7 He is useless". What good is that -- he was in

8 someone's house. The house we know was within walking

9 distance of the centre of Portadown.

10 We are not saying necessarily -- the inference is

11 not being invited that anyone who has ascribed a role to

12 Marc Hobson or identified him has mistakenly identified

13 Mark xxxxxx and they have got the two confused, because

14 one will never know -- certainly Marc Hobson was in

15 Portadown that night, but the question we legitimately

16 ask is: was sufficient done? Were enough resources put

17 into actually rigorously looking at the alibi and

18 testing it? It wasn't, because it was simply acted on

19 as a hunch.

20 Now it may well be correct, but that is what

21 happened, sir, because the alibi certainly does not

22 check out, and the view inevitably is made by someone,

23 perhaps Mr Irwin, that, in fact, they simply just don't

24 believe Hobson and they believe xxxxx was elsewhere,

25 but actually there was nothing --

1 THE CHAIRMAN: Just remind me. It was Cooke who saw the man

2 to whom he gave the name xxxxxx.

3 MR GREEN: Indeed, yes.

4 THE CHAIRMAN: Isn't the starting point in examining whether

5 that was a correct identification to ask: why did Cooke

6 give the name xxxxx? What does he say about it? In

7 other words, you can't divorce from what Cooke says

8 about the name xxxxx from the consideration you have

9 just been putting before us.

10 MR GREEN: Cooke, sir, you will remember when he was asked

11 about this, he had given in his notebook entry and in

12 his statement the name of xxxxx, not just the name of

13 xxxxxx, but he had given the address of xxxxx and

14 I think he had attended at the scene with

15 Detective Constable Keys, I think, in the early hours of

16 the 27th, basically to set the scene for

17 Detective Constable Keys, and he relayed chapter and

18 verse, as far as he could remember, of what he had seen.

19 He believes -- I think my memory is right on that

20 issue -- he did tell Detective Constable Keys about the

21 people he had seen and what they had done.

22 So there were three opportunities, and never once

23 during those three opportunities does he, in fact,

24 correct the initial mistake. The mistake is made first

25 of all when he makes his notebook entry and I think it

1 was that he copied his notebook entry or effectively

2 just copied the details of one on to the other.

3 Now he may have been just slavishly doing that, sir,

4 but you know what happens when you copy from one

5 document to another. You tend to have the edit button

6 on. That was an opportunity for him to re-edit it. He

7 didn't. When he spoke with Detective Constable Keys,

8 that was another opportunity, and he didn't.

9 It is certainly a curiosity how that mistake was

10 made and uncorrected. You remember Constable Cooke gave

11 evidence that, in fact, had Detective Sergeant Bradley

12 not approached him and asked him if he was sure about

13 his identifications, he would never have corrected it,

14 and, of course, the very fact that he is asked that

15 question, that very question, by Detective

16 Sergeant Bradley really raises the question: what on

17 earth was going on there? What was the purpose of

18 Detective Sergeant Bradley approaching him, if not to

19 get him to change that particular point, part of his

20 statement? Does that not bleed into the notion of

21 a question, the cheeky question we asked: we have

22 Hobson. xxxxx isn't Hobson. We are trying to make

23 a case here against Hobson.

24 The problem with that is that Constable Cooke has

25 a totally different person. So --


2 with the question of the nickname "Muck"?

3 MR GREEN: I don't think Constable Cooke used that.


5 The person was identified by the nickname. There is no

6 suggestion that Mark xxxxxx was also called "Muck", is

7 there?

8 MR GREEN: No. There is no doubt that Marc Hobson was in

9 Portadown, and, therefore, any person who has referred

10 to him as "Muck" we have to concede is correct in that

11 regard. I think maybe we are talking perhaps a little

12 more about Tracey Clarke who referred to him as "Muck",

13 and solely "Muck", she had not a name for him. I think

14 that's why Mr McGrory certainly was making that

15 connection between "Muck" and Marc Hobson. We don't

16 resist that.

17 It is her motives, and we go on to talk about that

18 in a little detail a little later on. It is her motives

19 in putting him into the frame, but certainly

20 Constable Cooke, as far as I remember, does not refer to

21 him as "Muck".

22 THE CHAIRMAN: Can you remember, did you ask Bradley whether

23 his purpose in asking Cooke was to see if he could get

24 him to change his identification?

25 MR GREEN: Sir, that question wasn't put to Detective

1 Sergeant Bradley and that I have to accept is a failing.

2 It was put to Constable Cooke. You will see in the

3 transcript it deals with that. It was certainly put to

4 Constable Cooke, "What was said to you by Detective

5 Sergeant Bradley when he approached you?" but

6 Detective Constable Bradley was not asked that question.

7 I think Mr Gillespie dealt with that. He had simply

8 no recollection of the event at all. I think we

9 intended to ask him that question, but when he had

10 absolutely no recollection, and his evidence was quite

11 clear on that, "I have absolutely no recollect that have

12 event at all", the matter was not then pursued.

13 Constable Cooke's evidence of identification we say

14 for other reasons is flanked with difficulties stemming

15 from, first of all, his misidentification of Mark xxxxx

16 and the similarity and appearance, and we set out, sir,

17 in our written submissions -- the evidence at pages

18 38-45 of the 20th March deals with in greater detail the

19 various descriptions. I will just run through them,

20 sir, but that is where the reference is. At

21 paragraph 18 of his statement to the Inquiry

22 Constable Cooke referred to the person whom he described

23 as Mark xxxxxx initially, but then changed it to

24 Marc Hobson as being 5 foot 6 -- 5 foot 5 to 5 foot 6,

25 medium to slender build.

1 There's a QPF at page 144 which gave Marc Hobson's

2 description as being:

3 "5' 8", short brown hair, sideboards, moustache,

4 goat beard, 14 stone, well-built."

5 At page 267 of the papers Timothy Jameson's

6 statement records Mars as:

7 "Very short brown hair, goatee beard and is

8 overweight."

9 In Hobson's police interview the police officer puts

10 to him his description as he is sitting opposite him and

11 gives it as:

12 "5' 8", 14 stone, short brown hair, long sideburns,

13 but neatly trimmed to match his hairstyle, a goatee

14 beard, fair build, overweight."

15 "A bit in excess", I think was the expression used

16 by the interviewing officer. We say that's totally not

17 in accordance with the description given by

18 Constable Cooke in his statement.

19 I suppose it is this point and boils down to this:

20 whatever Constable Cooke's evidence either establishes

21 or does not assist in, if this is material that the

22 Inquiry are looking at to corroborate Constable Neill's

23 account, it would have to carry with it, if this were

24 a jury trial -- I accept we are in a different

25 evidential format here -- a very carefully worded

1 warning stemming from all of the matters that we have

2 raised that would tend to undermine its reliability.

3 It would suffer from a lack of an identification

4 parade. That is perhaps ultimately why Constable Cooke

5 was not called to give evidence at the trial, but it may

6 well have been for the inherent contradictions that were

7 in his accounts in any event.

8 Essentially, sir, we say there must be real concerns

9 about the manner in which his name came to be corrected,

10 and I have already dealt with that.

11 P40 gave a description that the Inquiry has been

12 invited to conclude is consistent with Mark xxxxx --

13 sorry -- Marc Hobson, and it is also consistent we say

14 with Mark xxxxxxx. How far that takes the Inquiry on, it

15 is perhaps a matter of inference.

16 The interesting thing, I think, just going back to

17 Constable Cooke's evidence, is I think, when he was

18 saying what the person whom he identified as Mark xxxxx

19 was doing, he was not doing anything violent, overtly

20 violent. He was, in fact, quite peaceful. I don't have

21 the reference for that to hand, but that's certainly my

22 recollection of how Constable Cooke gave his evidence.

23 Now, P40 was slightly different. He said, I think,

24 that the person was involved.

25 Sir, I am going to move on to another -- I see it is

1 11.50 am.

2 THE CHAIRMAN: I think we will have our break now,

3 fifteen minutes. I think we will take the opportunity

4 when we retire to have a look at the photographs of

5 xxxxxx and Hobson.

6 (11.50 am)

7 (A short break)

8 (12.05 pm)

9 THE CHAIRMAN: We have looked at those

10 photographs, Mr Green.

11 MR GREEN: I am grateful, sir. It occurs to me that some of

12 the references that I have perhaps given to you may not

13 be in accordance with the version of the consolidated

14 submissions that you have, but I know certainly there is

15 one I am having trouble finding on the system at the

16 moment.

17 What I will do, sir, is, where I have referred to

18 material, I will make sure that the version that you

19 have is in accordance with the submissions that I wish

20 to make and draw your attention to. That may not be

21 available today, but it will certainly be available this

22 week, sir.

23 THE CHAIRMAN: Thank you very much.

24 MR GREEN: Sir, the final matter I wish to raise is the

25 evidence of Tracey Clarke, Timothy Jameson and

1 Jonathan Wright. Immediately, of course, the contrast

2 in the level of criticism that can be made if

3 Constable Neill is correct with that if Tracey Clarke is

4 right is quite remarkable, and I accept that, whatever

5 reservations there might be about one aspect of

6 Mr Hobson's involvement that night, that is that

7 attested to by Constable Neill, there is another

8 dimension, of course, and that's the very much more

9 serious allegation made in a number of other statements.

10 Perhaps they get more serious as you move from

11 Jonathan Wright to Timothy Jameson and then ultimately

12 to Tracey Clarke.

13 Can I start, first of all, by saying each of these

14 witnesses presented the same difficulty for anyone

15 appearing for those implicated by their statements? It

16 is self-evident, of course, that it is impossible to

17 engage with these witnesses when their evidence before

18 the Inquiry was to the effect that none of the persons

19 they had implicated had, in fact, done anything wrong,

20 and that for a reason -- for a variety of reasons, any

21 statement they had prepared previously to implicate

22 people in was wrong.

23 One can immediately identify that when you appear

24 for someone like Marc Hobson. What do you say to

25 a witness in an Inquiry such as this? Even with the

1 relaxed rules that we have, it is tremendously difficult

2 to actually engage such a witness in this forum, because

3 they have distanced themselves from the statement that

4 implicates your client, and, therefore, what you are

5 left with is really a comment on how, in fact, we got to

6 the stage where they did retract their statement.

7 The Panel will reach its own conclusions on where

8 the truth of the matter lies, but we would like to add

9 to the debate by making just a few general submissions.

10 On Tracey Clarke, sir, the impression that she

11 created as a witness is something we wish to make a few

12 comments on. With all the difficulties encountered in

13 finally getting her to here and to hear from her as

14 a witness, it is our respectful submission that for what

15 it is worth she was, in fact, quite an impressive

16 witness. Now, others may have formed a different view

17 on that

18 THE CHAIRMAN: This is in the evidence she gave orally?

19 MR GREEN: Indeed, yes, sir. One might have expected,

20 perhaps, bearing in mind the difficulties in getting her

21 here, she might have presented as a different sort of

22 character and she had a lot of questions to answer.

23 In my respectful submission, she was an impressive

24 witness, but, as I say, coming from a criminal law

25 practice, I appreciate that, if she were giving evidence

1 in front of a court, one would have to exercise caution

2 because a convincing person can be a liar and vice

3 versa. It is very difficult sometimes to get to the

4 heart of someone's evidence if you just look at the

5 impression they create as a witness because they can be

6 very convincing. Liars can be very convincing, and I do

7 accept that, sir, but for what it is worth, that is, in

8 my respectful submission, the impression she did create

9 in this chamber as something towards quite an impressive

10 witness.

11 It is accepted, sir, that she was very close to the

12 incident that night and she may have seen a lot or some

13 of what happened. One will remember that the position

14 she was in in the earliest accounts, I think those she

15 gave to Andrea McKee, was that she was sitting on the

16 ground outside Poundstretcher, which was -- it is on

17 a snapshot, sir, but it is somewhere in the order of 20

18 to 30 metres from where Robert was being assaulted. She

19 would have had an opportunity to see something if she

20 was there. Quite what she would have been able to see

21 is another matter.

22 We say there are many question marks over the

23 accuracy of her April 1997 statement. There is

24 a temptation, sir, and I know it is a temptation this

25 Inquiry will resist, to take her evidence and present it

1 as the oracle of truth. We have to examine her

2 statement to see whether, in fact it, does stand up to

3 scrutiny. Of course, it names a lot of people and makes

4 very serious allegations against a large number of

5 people.

6 It perhaps would be nice for some of the parties

7 here represented for her to telling the truth, but it

8 may be she is not telling the truth, and the worst of

9 all situations would exist where we avoided, because it

10 may not be palatable to some, the difficult questions

11 that her evidence does create.

12 For one, if she was correct about the involvement of

13 Mr Forbes and Bridgett, where does that leave the

14 preponderance of the evidence which suggests that the

15 attack was over by the time the Land Rover crew got out?

16 Now, I did read -- I was not in the chamber -- with

17 interest, sir, your discussion with Mr McComb and I note

18 that you are alert to that issue. I think you said,

19 there, sir, that it was suggested that either the attack

20 began later or that the violence was of a greater

21 duration than some accounts had suggested. Of course,

22 that's a matter that the Panel are going to have to

23 resolve.

24 It is possible, of course, that the violence in the

25 form attested to by Tracey Clarke did last longer. It

1 is possible that that violence did last longer, but it

2 is unlikely, sir, because the time-line, which is

3 already very congested, simply does not, we say,

4 facilitate it. For one, it would involve

5 Constable Atkinson and Constable Neill almost certainly

6 seeing the assault if it lasted beyond what we submit

7 was a very short duration, if it lasted beyond that, to

8 enable Tracey Clarke to have seen Bridgett and Forbes

9 still engaged in it.

10 The medical evidence tends to suggest this was

11 a very quick attack, but if it did last longer, if it

12 did last longer, does it not raise still further the

13 question and deeper the suspicion about

14 Constable Neill's and Atkinson's failure to note the

15 presence of Forbes and Bridgett in that attack? We say

16 it does.

17 Secondly, when she spoke with Andrea McKee on the

18 Sunday morning, she was excited, and I think the phrase

19 she used -- that is Andrea McKee -- about

20 Tracey Clarke's demeanour was that it was buzzing news

21 for her. She just had so much to talk about and she was

22 open and talking freely about what happened the previous

23 night and early in the morning.

24 Sir, that's at pages 171-177 of her evidence,

25 Andrea McKee's evidence, on 11th February.

1 She was keen to talk about events but did not say

2 anything about Mr Hanvey's involvement, still less about

3 the involvement of others. It was only during the week,

4 as rumours and talk filled the streets of Portadown,

5 that she said anything about the involvement of anyone

6 else.

7 Sir, I don't wish to open it now, but if you read

8 that transcript between pages 171-177, it does seem to

9 be the position that there was absolutely nothing to

10 stop Tracey Clarke, who was a bit of a gossiper, and, as

11 we say here, wouldn't have been able to hold her water

12 on an issue as exciting as this clearly was, and I use

13 the word "exciting", sir, not in a derogatory sense.

14 A man died here. But she was excited about it. That

15 was Andrea McKee's impression of her. She would not

16 have been able to stop herself from telling her aunt,

17 a confidant, someone whom she spoke easily and freely to

18 on other occasions, and Sunday mornings at her house was

19 a regular occurrence. There was absolutely nothing to

20 stop her giving a full account of what had happened, but

21 she didn't.

22 We say it is striking, the ease with which she

23 talked to her aunt about these events, and the

24 identification of those involved and the ease with which

25 she spoke to people at the Tae Kwon Do club and the

1 police and made her statements. So she was clearly

2 a chatterer and a gossiper. When she was of a mind to,

3 there was nothing would stop her. She had all the

4 opportunity in the world to speak freely to

5 Andrea McKee. She was clearly freely speaking in the

6 Tae Kwon Do club and freely speaking to the police on

7 10th April (sic).

8 What was it between 27th April and 10th May, when

9 she made her statement, that enabled her to start adding

10 the details of people who were there? We say the lack

11 of any detail in her statement about such a violent

12 event is a telling indicator of where, in fact, the

13 truth of the matter is, because the incident in which

14 she describes deals with those involved in this brutal

15 murder. This was not simply a traffic accident that she

16 was giving an account of. This was a brutal murder. By

17 10th May, sir, that is what she was giving an account

18 of.

19 If you look at her statement on 10th May, it deals

20 with this brutal event, with those who were involved,

21 with what they were doing, what they were wearing, if

22 there was any note of that, what they were doing

23 immediately before and after. It deals with everything

24 of interest in five lines against five people. It might

25 be five and a quarter lines, but it doesn't go beyond

1 the sixth line.

2 That, in my respectful submission, sir, is

3 a remarkable achievement, more remarkable perhaps for

4 the fact that there is absolutely no attempt made

5 between 10th May and the time when she comes to retract

6 her statement or effectively to say she was not giving

7 evidence, absolutely no effort whatsoever to add any

8 detail to that statement.

9 I have not heard of any efforts that were made,

10 I have not heard of any other statements that were

11 obtained, I have not heard of any questions being asked

12 about the lack of detail. Does that inform the Panel

13 about the persons who took that statement and their true

14 statement of knowledge in terms of whether Tracey Clarke

15 was being accurate? Was it, for instance, a situation

16 where they have a delicate situation here where they

17 have a remarkable statement dealing with a remarkable

18 event and five people in five lines?

19 Common sense would prevail, one would think, and

20 an investigating officer would say, "Well, we need a bit

21 more detail here". That simply was not done. Why was

22 that? Was that perhaps because, "We don't want to shake

23 this tree. We don't know what will fall out of it", or,

24 "Really, we have got this statement by the narrowest of

25 margins. Let's not interrupt things"?

1 Was that statement alleviating pressures on the

2 police to achieve some sort of result? What really was

3 going on that enabled the police in charge of this

4 investigation not to follow up what was a pathetic

5 statement dealing with these events in such little

6 detail? There was not one attempt made to do that.

7 THE CHAIRMAN: Are you suggesting there was an ulterior

8 motive for that failure?

9 MR GREEN: I raise the question, sir, simply because it

10 needs to be asked: why wouldn't that be followed up by

11 further clarification about it?

12 Because it is remarkable, sir. If you look at her

13 statement, in our submission it is remarkable that it

14 does deal in such matters so briefly.

15 One would imagine, if you have a lie to tell, the

16 less you say about it, the less detail you go into,

17 perhaps the less difficulty you get yourself into later.

18 If it is a lie, sir, the more detail she puts into

19 that statement, the more obviously objectively you are

20 going to pick it apart. If you just say, "I saw A. He

21 did that. I saw B. He did that. I saw C. He did

22 that. D, E", and you give no details then you can't

23 really be picked apart, until, of course, the stage is

24 reached when you decide, "Well, I have had enough of

25 that statement. I am not giving evidence about it."

1 It is a curiosity -- more than a curiosity. I am

2 not able to suggest what the ulterior motive is, sir,

3 but I raise it as a question that I think this Panel

4 should legitimately consider. Why was no effort made to

5 clarify it?

6 The other matter we seek to -- it is an obvious

7 one -- there was, of course, a difficult relationship

8 between Mr Hanvey and Clarke. I think that has been

9 alluded to in some detail by others.

10 Finally on Tracey Clarke, the fact that there was

11 a medical note produced which records an acknowledgment

12 by her of Hanvey's involvement -- I can't remember the

13 exact term of the note, but it was a medical note that

14 was produced earlier this year -- whilst it names

15 Hanvey, it does not name anyone else.

16 It is possible that parts of her statement are true

17 and parts are untrue, but certainly we say that insofar

18 as she names a person called "Muck", who is Marc Hobson,

19 that she is fundamentally lying about that for reasons

20 perhaps that this Inquiry will never get to the bottom

21 of.

22 As far as Jonathan Wright is concerned, sir, the

23 Panel have been invited to speculate about telephone

24 calls made on 17th and 18th October between Mr Wright's

25 home and the Maze prison or vice versa. There is

1 absolutely no evidence, sir, of who received these

2 calls, whether it was Mr Bridgett, whether it was

3 Marc Hobson, or whether it was someone else. I know

4 Mr Wright said that he was in contact really with only

5 Bridgett and Hobson, but it is also the case that by

6 17th and 18th October there were other people on remand

7 still for this murder.

8 The only evidence on the issue was that Mr Wright

9 was, as we say , in regular contact with Bridgett and

10 Hobson. There was no evidence Mr Hobson knew Mr Wright

11 had made a damning statement, not a shred of evidence

12 that confirms that Mr Hobson knew that Mr Wright had

13 made a damning statement against him, or that he would

14 have been aware he was due to have a consultation on

15 17th October.

16 We say the invitation that was extended by

17 Mr McGrory last week that there was a direct connection

18 between those calls and a consultation is nothing more

19 than mere speculation. It's based on nothing that can

20 even support an inference, let alone speculation.

21 I think the position really in real terms would be:

22 why would Mr Hobson allow visits from Jonathan Wright if

23 he knew he had stated an involvement such as he had in

24 his second statement?

25 He said, that is Mr Hobson said, that he had stopped

1 seeing Mr Wright only from the point in time when he

2 received his PE papers. That is the time when

3 a defendant would know what the case was against him.

4 Very often, in fact almost always, you might in a bail

5 court hear a little material, but effectively, when you

6 receive your committal papers is when you find out what

7 the evidence is. It is at that stage -- you heard

8 Mr Hobson giving evidence that he stopped the visits

9 between himself and Wright. It is at that stage. There

10 is no evidence to contradict that. The question we ask

11 is: why would Hobson want a person like Wright --

12 whether he is telling the truth or not is not really of

13 concern at this stage -- why would he have him down to

14 the prison?

15 The only reason he would have him down to the prison

16 is, "You must get that statement retracted. Away you

17 go". That's not what happens, because the statement is

18 not retracted until, I think, March of the following

19 year. So any connection between Hobson involving

20 himself in matters on 17th and 18th October is

21 speculative and, in fact, the evidence points the other

22 way. Why, if he was proactive with Wright and the

23 statement he made, why didn't Wright withdraw the

24 statement much sooner? He does not withdraw it until

25 the following year.

1 Sir, in conclusion, the Inquiry has had, as part of

2 the materials before it relating to Marc Hobson, a lot

3 of material from a number of witnesses ascribing a role

4 to his involvement that night. Whenever we have

5 referred -- he had a trial before Lord Justice McCollum,

6 and whenever we have referred to any of those materials,

7 and perhaps more particularly the accounts given by the

8 Land Rover crew, we have done so in their capacity as

9 material before this Inquiry.

10 There were few matters of fact that could be said to

11 be established in this Inquiry, but one of those facts

12 was that Marc Hobson was convicted of an affray and

13 acquitted of a murder, for which he received a four-year

14 sentence. That's a considerable sentence. It reflects

15 the fact that a man died as a result of his involvement

16 as found by the learned trial judge.

17 We entirely accept that no part of the Panel's

18 considerations or the terms of reference allow for

19 submissions on the finding of any other court, and we do

20 not ask for such a finding to be made. If fact, in my

21 written submissions, sir, the one thing I didn't refer

22 to was the safety of Marc Hobson's conviction. I know

23 others did, but we didn't.

24 The simple point we make is that, in considering

25 some of the issues that are at the heart of this

1 Inquiry, an assessment has to be made of the actions or

2 inactions of the Land Rover crew. That's really the

3 only issue that I am concerned with, and that is the

4 only assessment, sir, that we seek to be heard upon.

5 It is a fact that Marc Hobson was convicted for

6 involvement in the events that occurred that night. We

7 know that this Inquiry will not start its considerations

8 from the position that he is convicted of those matters.

9 Those will have to be established, not with reference to

10 whether the conviction is safe or not, but with whether

11 Constable Neill and others have told the truth. That's

12 an entirely different matter and does not involve this

13 court in second guessing another court of this

14 jurisdiction, sir.

15 Those would be our submissions. If there are any

16 questions from the Panel ...

17 THE CHAIRMAN: Thank you very much, Mr Green.

18 You did, Mr Green, give your heading for the last

19 part: Tracey Clarke, Timothy Jameson and

20 Jonathan Wright. I assume you don't wish to say

21 anything about Jonathan Wright?

22 SIR JOHN EVANS: You said about Jonathan Wright.

23 MR GREEN: I thought I had said about Jonathan Wright.

24 Timothy Jameson, no.

25 THE CHAIRMAN: I'm sorry, Timothy Jameson.

1 MR GREEN: We have, no submissions on Timothy Jameson.

2 THE CHAIRMAN: Thank you very much.

3 Closing submissions by MR McGLEENAN

4 MR McGLEENAN: Chairman, I appeared on behalf of

5 Tracey Clarke. My name is McGleenan. I have appeared

6 here once before in September on the day she gave

7 evidence. I wish to make some brief submissions on

8 behalf of Tracey Clarke formally.

9 Chairman, Panel members, you have a written

10 submission from me which I do not propose to repeat.

11 Indeed, I would have been content to rest on that

12 written submission, but for the fact that Tracey Clarke

13 faces two potential criticisms from this Inquiry, and

14 consequently I feel it appropriate to address you on

15 those.

16 The two criticisms of her which are proposed is that

17 she gave a false statement to the police which led to

18 the incarceration of a number of men and, secondly, that

19 she gave false evidence to this Inquiry.

20 It is obvious from the formulation of those two

21 criticisms that, on a simplistic view, Tracey Clarke is

22 in a classic fork or cleft stick, insofar as, if she

23 challenges one or other of those propositions, she is

24 left accepting the alternative, but, Chairman, Panel

25 members, it is my submission that, properly analysed,

1 she is not in any such position, because it is my

2 respectful submission that a fair analysis of the

3 evidence before the Tribunal will indicate that, in

4 fact, Tracey Clarke gave candid evidence to the Inquiry.

5 Thus, the second criticism cannot stand. She gave

6 a partially accurate statement to the police. Other

7 components of that statement were not accurate. Again,

8 she candidly accepted that in her evidence.

9 So if one carefully examines the documentary record

10 and the evidence which she gave, in my respectful

11 submission there is no basis for criticism of her.

12 I remind the Inquiry, probably unnecessarily, that

13 criticism ought to be grounded in the terms of

14 reference. In my respectful submission, there would be

15 no basis for overt public censure of Tracey Clarke for

16 having given a false statement to the police in 1997

17 when one reflects carefully on the terms of reference

18 for the Inquiry.

19 It is, of course, open to the Inquiry to note that

20 there may be something morally objectionable about

21 giving a false statement to the police or a partially

22 false statement to the police, but that's a very long

23 way from the terms of reference this Inquiry was set up

24 to address.

25 Indeed, the only connection that any party has taken

1 so far to have made to connect her statement to the

2 terms of reference has been to the British Irish Rights

3 Watch, who have suggested that the manner in which the

4 police interview was conducted was so negligent as to

5 amount to obstruction, and, consequently, it sounds

6 directly on the terms of reference.

7 In my submission, the Inquiry does not need to go

8 that far, and, indeed, the Inquiry does not need to be

9 critical of a young woman who, as my learned friend

10 Mr Green said, came before the Tribunal, notwithstanding

11 clinical difficulties which are known to you, and gave

12 an impressive and emotional account of her engagement in

13 1997.

14 THE CHAIRMAN: Just help me. If we were to conclude that

15 her statement to the police was accurate, that plainly

16 would be relevant to our terms of reference, because it

17 would refer to the tipping-off allegation. Do you

18 accept that?

19 MR McGLEENAN: Yes, that's accepted, but you see the

20 line I take.

21 THE CHAIRMAN: Yes, I do.

22 MR McGLEENAN: Her statement is partially accurate.

23 THE CHAIRMAN: If it is not to be relied upon, then it adds

24 nothing to our working out of our terms of reference.

25 That's the way you put it, isn't it?

1 MR McGLEENAN: Precisely. If I can assist by developing the

2 submission a little further, the circumstances which it

3 will be beneficial for the Inquiry to consider around

4 the taking of that statement centre on three key dates:

5 8th May 1997, 9th May 1997 and 10th May.

6 The Inquiry can helpfully reflect, in my submission,

7 on what happened over those three days. On 8th May,

8 Tracey Clarke is questioned for the purpose of

9 a questionnaire response by a police officer called

10 McAteer. He calls with her and completes

11 a questionnaire form which has been opened in evidence

12 before you. On that date, which clearly is some time

13 after the incident, indeed after the death, she gives

14 an account which describes arriving in Portadown that

15 night from the Coach, walking up the town, hearing that

16 a fight has occurred, running with friends to the scene

17 and seeing two prostrate bodies lying on the ground.

18 She is asked by the constable whether or not she

19 witnessed an assault and her answer was emphatic. She

20 said "No".

21 Now, what is intriguing from the perspective of your

22 task is that the core of that questionnaire response of

23 8th May also appears in her police statement of

24 10th May, just two days later. Exactly the same

25 description: on arriving in Portadown, coming with

1 friends into the town, hearing the commotion and seeing

2 the bodies lying on the ground, but crucially she goes

3 further on 10th May and gives a florid, colourful and

4 detailed account of named individuals engaged in

5 an attack, and further still into the Atkinson tip-off.

6 So the Inquiry will reflect, as will all who looked

7 closely at this evidence and ponder how it came to be

8 that that anodyne, bland response of 8th May transformed

9 into the florid account of the 10th. Was there any

10 intervening event which could explain this?

11 In my respectful submission, there is in the

12 documentary material before you a very clear explanation

13 for this.

14 On 9th May, between the anodyne account and the

15 detailed colourful account there is evidence that

16 a police officer called McCaw heard or was given

17 information at the Tae Kwon Do club which prompted

18 a liaison between the senior police officer in charge of

19 the investigation -- I think Irwin is his name --

20 McAteer, the other detective involved in it, McCaw

21 himself and Andrea McKee.

22 It is helpful, in my respectful submission , if we

23 may, for a moment, just reflect on the different

24 narrative accounts that have been given of this issue.

25 It has been suggested the reason why Tracey Clarke

1 found herself in the police station late at night on

2 10th May was that she had been overheard in the

3 Tae Kwon Do club by McCaw, the off-duty police officer,

4 talking loosely about the assault on Robert Hamill.

5 That is a narrative that has been put forward in this

6 case.

7 However, it is not supported at all by the interview

8 note of Mr McCaw, the policeman. I do want to take

9 a little moment to look at this. The suggestion that

10 Tracey Clarke was overheard in the Tae Kwon Do club on

11 Thursday, 9th May appears to come from Andrea McKee's

12 statement. If I could ask for assistance from the IT

13 professionals, I want to have a look at a document at

14 [20301]. It is a statement of Andrea McKee of

15 30th October 2002. This is a number of pages into the

16 statement. If I could just read from this:

17 "I remember talking to Robert Atkinson at some point

18 around that time and I remember him telling me that it

19 was just his luck to be on when something like this

20 happens. I did not discuss with Robert Atkinson what

21 Tracey had said about Allister Hanvey and the other

22 person she named. I know that Michael was talking to

23 Robert Atkinson continually at that time. I recall

24 Michael ringing Robert Atkinson from home and telling

25 him that Tracey had spoken to him and told him

1 Allister Hanvey had told her about Robert Atkinson

2 ringing his house on the Sunday morning after he had got

3 home from work and telling him to get rid of his

4 clothes."

5 I draw attention there to the phrase that's used

6 "get rid of his clothes". This is the introduction of

7 the tip-off. The words used there are not the words

8 repeated many times by others about burning his clothes,

9 this is a statement "get rid of his clothes":

10 "I remember Michael telling him that if he did do

11 this, then he was an idiot, but I was not in a position

12 to hear what Robert was saying on the far end of the

13 phone. When Michael came off the phone, he just

14 commented that, if he did do it, then he was an idiot

15 and we didn't discuss it further at that time."

16 I say the next section is crucially important:

17 "Around the time that Robert Hamill died, which was

18 some days after the fight, I remember being in the gym

19 one afternoon, it may have been a Thursday, when Tracey

20 was talking about the fight to people in the gym.

21 I cannot recall who was in the gym at the time, but

22 I remember a policeman I know called Davy talked to me

23 about it and he asked me who Tracey was and did the

24 police know what she was saying. As far as I recall,

25 Tracey was talking about the fight and who was involved.

1 I do not recall her talking about what Atkinson had

2 done. Davy would attend our gym at different times to

3 train and I remember talking to him again, after which

4 he then rang Portadown Police Station from our gym. As

5 a result of that phone call, I then accompanied Davy to

6 go and meet two police officers. It was dark when I met

7 the two police officers and I told them that

8 Tracey Clarke knew about the fighting and what she had

9 seen."

10 Chairman, this statement reveals, in my submission,

11 that, on 9th May, the intervening date between the

12 anodyne statement and the florid account, we have

13 Police Officer David McCaw in the gym, on Andrea McKee's

14 account, overhearing her talking about the fight and who

15 was involved.

16 You will also see, if you look closely at that

17 statement, that she is at pains to distance herself from

18 passing any information about the Atkinson tip-off. She

19 is very careful in how that statement is phrased. The

20 Atkinson tip-off she suggests comes as a conduit from

21 Tracey Clarke. You will notice also the suggestion here

22 is this happened on a Thursday afternoon in the gym.

23 You will have heard Tracey Clarke giving her evidence

24 about how she worked full-time in Going Places, the

25 travel agents, and also in the Mandarin House

1 restaurant. The Inquiry will query whether it was at

2 all possible for Tracey Clarke to have heard this on the

3 Thursday afternoon on 9th May

4 THE CHAIRMAN: You mean Andrea McKee.

5 MR McGLEENAN: My suggestion is Tracey Clarke was not there.

6 She was working in Going Places.


8 MR McGLEENAN: If I can go over to the next page just

9 briefly -- I will not labour this [20302], she says:

10 "I do not remember mentioning to the officer about

11 what Tracey Clarke had said about Robert Atkinson."

12 Again, in my submission, distancing herself from the

13 Atkinson tip-off:

14 "On the following day, which was a Friday, I was

15 speaking to Tracey Clarke's mother ... who told me

16 Tracey had to go to Portadown police station to speak to

17 the police. I was not aware she had spoken to the

18 previous night. I asked Michael to pick Tracey up from

19 her part-time job at the Chinese restaurant in

20 West Street and take her to the police station."

21 Chairman, Panel members, one sees there the

22 chronology I have put to you confirmed. One has, on the

23 8th, a bland statement. The 9th, something happens at

24 the gym with Davy McCaw. The 10th, she is picked up and

25 taken to the police station.

1 So what was the intervening event, the other

2 intervening event that occurs? It is, in my respectful

3 submission, the engagement at a place called Kernon,

4 where Andrea McKee is picked up by this officer,

5 David McCaw, and taken to see Irwin and Mr McAteer.

6 In my submission, there is a very important document

7 which appears in longhand form only, as far as I can

8 see, which appears at page [22670]. If I can be

9 assisted again.

10 This is a journal entry made by the detective

11 interviewing Davy McCaw on 27th November 2000. This,

12 in my submission, is crucial in understanding what went

13 on in that period and also in understanding how the

14 content of Tracey Clarke's statement came to be as it

15 is.

16 THE CHAIRMAN: Is this Irwin's journal?

17 MR GREEN: DCI K. I will read from some passages of this.

18 If I can ask the IT to take it over to the next page.

19 MR UNDERWOOD: To be fair, it might be helpful to note what

20 was on the first page about Mr McCaw's mental health.

21 MR McGLEENAN: I will read from it. I am grateful to my

22 friend. Halfway down that page:

23 "Mr McCaw said that he would try to remember what he

24 could, but his memory wouldn't that be clear because he

25 has been psychiatrically ill and remains under medical

1 care of Dr [blank] at Craigavon Hospital."

2 Then he is asked to relate the issues relating to

3 Robert Hamill in April 1997.

4 I am asking you then to turn over --

5 THE CHAIRMAN: Can you remind me of the date of this

6 interview? I missed it.

7 MR McGLEENAN: The date of this interview is

8 27th November 2000.

9 THE CHAIRMAN: Thank you. Yes.

10 MR McGLEENAN: If we highlight the top half of the page, and

11 if I can pick it up about seven lines down, there is

12 a reference to:

13 "... Michael and Andrea McKee, who ran the

14 Tae Kwon Do club, said that he would have used the gym

15 facilities from time to time. Mr McCaw recalls one day

16 talking to Andrea McKee in the office when Andrea McKee

17 told him about Robert Atkinson ringing a boy

18 Allister Hanvey after the Hamill incident and that

19 Atkinson had told this boy, Allister Hanvey, to burn his

20 clothes. Mr McCaw does not recall when this

21 conversation occurred, but remembers going to the police

22 station in Portadown where he thinks he spoke to the

23 detective inspector about it. He also recalls talking

24 about it to Johnny McAteer. He asked him to outline

25 fully what Andrea McKee told him. Mr McCaw said she did

1 talk about the Hamill incident, but he could not recall

2 what was said. He says the only thing he can recall is

3 they mentioned about Atkinson ringing this boy Hanvey

4 and telling him to burn his clothes."

5 Towards the bottom of that page, he is asked about

6 this conversation between Andrea McKee and himself:

7 "Mr McCaw states that he cannot recall. I asked him

8 did he know a girl by the name of Tracey Clarke who was

9 a niece of Michael and Andrea McKee. He said he

10 couldn't recall that name and didn't know anybody by

11 that name. I asked him what he could have been doing

12 that day when Andrea McKee told him this."

13 So, Chairman, in my submission, what one sees here

14 is a very interesting analysis where the constable is

15 not remembering Tracey Clarke at all, although the

16 narrative is that she was overheard by him. He doesn't

17 remember a discussion about names and people involved in

18 the attack, but what he does remember is Andrea McKee

19 saying something about the Atkinson tip-off.

20 Over to the next page, [22672], top half, please.

21 About halfway down, the officer doing the interview

22 said:

23 "I asked him why he believed this" --

24 I beg your pardon, sorry:

25 "I asked him did he recall hearing anything being

1 discussed around the gym at that time about the Hamill

2 incident. He says that he doesn't recall hearing

3 anything, apart from what Andrea told him."

4 So again, one has confirmation here, for what it is

5 worth, of this man not hearing anything from

6 Tracey Clarke.

7 Over to the next page, please. At the top he is

8 asked did he recall mentioning about Tracey Clarke:

9 "He said he could not remember that name. He could

10 not remember mentioning this girl being a witness to the

11 case, but that was not to say he did not mention her.

12 He said at that point he could not remember."

13 A little further down towards the bottom there:

14 "Mr McCaw remembered going with Andrea McKee to see

15 the detective inspector, and, he thinks, Johnny McAteer

16 later that night. He said it was late at night but

17 cannot recall how this was arranged. He says he doesn't

18 remember when he picked up Andrea McKee to go to the

19 meeting", it goes on, "which he said was up near the

20 graveyard."

21 So, Chairman, what I say this document shows is that

22 on the intervening date of 9th May the true reason for

23 Tracey Clarke being taken from her place of work back to

24 the police station for another interview was the

25 information that came through this liaison. It is

1 interesting also to note that the persons involved in

2 the liaison were Mr McAteer, who subsequently was

3 involved in the interview that night. So we have

4 a clandestine liaison on the 9th where there is

5 a discussion on McCaw's account of the Atkinson tip-off.

6 That then appears, of course, in the statement which

7 Tracey Clarke gives on the 10th, and the personnel

8 involved in that interview are the female officer,

9 McAteer, Andrea McKee and Tracey Clarke. Two of them

10 have had a discussion about a central issue the night

11 before

12 THE CHAIRMAN: I have forgotten. Was any record made by

13 Irwin or McBurney of what McCaw told them or was that

14 simply oral evidence or in McBurney's statement?

15 MR UNDERWOOD: We think that when Mr McAteer was interviewed

16 about this, also in November 2000, he told DCI K of his

17 account of it. I am just checking to see whether there

18 is some other --

19 THE CHAIRMAN: So the information came, according to McAteer

20 from McCaw to him?

21 MR UNDERWOOD: Yes. We are checking that. Can I, while

22 I am on my feet, just clarify some dates that my friend

23 has not got entirely right?

24 The 8th May was the day on which two things happened

25 relevant to his client. Firstly, she gave her account

1 by questionnaire to Mr McAteer. Secondly, that was the

2 day on which Andrea McKee went to meet police officers

3 in the evening with Mr McCaw. Tracey Clarke then went

4 on the evening of the next day, the 9th, to the police

5 station, made a statement which lasted until the early

6 hours of the 10th, which is why it is dated the 10th.

7 MR McGLEENAN: That's helpful. It does not erode the

8 central point that there is an intervening event between

9 the first statement and the second. I am grateful for

10 the clarification.

11 THE CHAIRMAN: We cannot consider the point you have just

12 raised without considering also what McAteer says McCaw

13 said to him. That must have a bearing on it, must it

14 not?

15 MR McGLEENAN: It must do. I accept that.

16 THE CHAIRMAN: Also the intervening state of mental

17 ill-health in the case of McCaw before he spoke to

18 DCI K.

19 MR McGLEENAN: Yes, of course. You have my submission that

20 McCaw does not recall talking to Clarke, and I say that

21 undermines --

22 THE CHAIRMAN: Did he not recall when he spoke to DCI K?

23 That's why I have asked the question about what he said

24 at the time to anyone.

25 MR McGLEENAN: That's a perfectly valid line of enquiry.

1 I accept that.


3 MR McGLEENAN: Chairman, I want to move on to the anatomy of

4 the statement and what is contained in it? I have

5 a little way to go, not very long --


7 MR McGLEENAN: -- if you wish to continue.

8 THE CHAIRMAN: We do not mind sitting on for a few minutes

9 longer.

10 MR McGLEENAN: Very good.

11 Chairman , in relation to the statement itself, what

12 one sees here in my submission is a statement taken in

13 oppressive circumstances. I have outlined the nature of

14 those circumstances in my own written submission. It

15 will not be lost on the Inquiry, those who follow this,

16 that, at the time of these events, Tracey Clarke was

17 a child. She was a 17-year-old girl. She is

18 an industrious young girl. She is involved in two jobs

19 at the time. She was working in a travel agent by day,

20 a Chinese restaurant by night, and she is lifted, to use

21 a vernacular term, and taken to the police station by

22 her confidant aunt on the evening of 9th May for

23 a police interview.

24 Now, she knows nothing about it on her own account,

25 but she is brought to the police station very late at

1 night, evidently on a night after her work at the

2 Chinese restaurant, and is interviewed for a period of

3 time which we cannot define, because we don't have

4 precise boundaries identified in any document.

5 It is clear, also, that she is interviewed not with

6 a parent, although there were those with parental

7 responsibility who had care of her, her mother. The

8 Inquiry knows her mother attempted to make telephone

9 contact with her twice at the police station, but did

10 not do so. She spoke to Mr McAteer

11 THE CHAIRMAN: There was no requirement under PACE, was

12 there, for an adult to be present as she is not there as

13 a suspect?

14 MR McGLEENAN: No. She is there as a voluntary attender.

15 That's how it fits into the framework. Of course, one

16 looks at the context in which she was taken there, and

17 whether or not she was a true volunteer is something

18 that, in my submission, is open for debate, but

19 nevertheless, I accept that.


21 MR McGLEENAN: One also sees that the interview is conducted

22 with her aunt present, and her aunt, of course, does not

23 reveal to Tracey Clarke, nor does Mr McAteer reveal,

24 that they have had this clandestine liaison the previous

25 evening where certain issues were discussed. The

1 interview proceeds, unknown to Tracey Clarke that there

2 was any other previous discussion.

3 THE CHAIRMAN: Might there not be good reason for that?

4 They would not want to prompt her with information.

5 They would want to know what she had to tell them,

6 wouldn't they?

7 MR McGLEENAN: They may well do. There may well be

8 a rationale for it, but one steps back and one reflects

9 that we have a 17-year-old girl in this situation. She

10 is being questioned in the company of others, indeed

11 with someone whom she is purported to trust in the

12 circumstance, and she is not given the full story.

13 That's not insignificant, because it is suggested in

14 various submissions I have seen that the veracity of the

15 content of her statement can be tested by the fact that

16 the information about the Atkinson tip-off appears in

17 it. How else would Tracey Clarke be able to say

18 anything about the Atkinson tip-off unless her statement

19 was true? How else would she give detail about a call

20 at 8.00 am on the Sunday morning after the incident?

21 Well, there is an obvious answer to that. Because

22 the information came from Andrea McKee, who, on McCaw's

23 record, albeit November 2000, that was what she talked

24 to him about. So the fact there is information about

25 the Atkinson tip-off in that statement, in my

1 submission, does not necessarily stand to the veracity

2 or otherwise of the statement. It can just as readily

3 be explained that Andrea McKee, who knows about these

4 things, is in the room.

5 Of course, you will have heard Tracey Clarke give

6 her evidence, where she said that certain things came

7 from Andrea. That came from Andrea.


9 MR McGLEENAN: Her account of her statement is there are

10 parts of it which are her words and are entirely true.

11 In my submission, we can reflect the 8th May

12 questionnaire in that. There are parts of it which are

13 her words which are untrue. There are parts of her

14 statement which are Andrea McKee's words and there are

15 parts that were inserted at the prompting of police.

16 That's how she describes it.

17 I say, when one properly analyses this in the round,

18 there is the ring of truth to that.

19 Indeed, if I turn to the part of it which she

20 suggests was prompted by police, Mr Green has already

21 adverted to this -- the component of the statement which

22 damns the five gentlemen involves a simple list of

23 names. If one subjects that statement to a close

24 textual analysis, you will see, interestingly, that she

25 does give a list of names twice about those who were at

1 the Coach with her and those who were on the bus on the

2 way back, but she does not enumerate them. She then

3 comes to give a list of names of those she suggests

4 kicked and jumped on Mr Hamill, but those names are

5 broken up by numbers, number 1, 2, 3, 4 and 5. That, in

6 my submission, is entirely peculiar. Why would she

7 present the information in that way?

8 Moreover --

9 THE CHAIRMAN: I don't quite follow. Do you mean, why

10 should she say, "Number 1, number 2"?

11 MR McGLEENAN: She list her friends on the bus

12 "Tracy McAlpine and others". She doesn't say,

13 "Number 1, Tracy McAlpine, number 2, Shelley Liggett".

14 THE CHAIRMAN: Isn't that entirely consistent with

15 a statement taker, for clarity, saying "Number 1,

16 number 2"? He doesn't have to put the statement wholly

17 in the witness' words. What he must not do is

18 misrepresent what she has told him.

19 MR McGLEENAN: An alternative explanation, which is just as

20 consistent, is that she is presented with a list of

21 names, which is what she says in her evidence.

22 That list of names, intriguingly, matches almost

23 perfectly with the names which were given by

24 Timothy Jameson. In Timothy Jameson's statement he

25 names six people and five of them appear in

1 Tracey Clarke's statement.

2 As far as I can see, it is not possible to say that

3 Jameson was being interviewed at exactly the same time

4 as Tracey Clarke on 9th and 10th May, but Tracey Clarke

5 certainly thought so and gave her evidence here that he

6 was in the police station at that same time.

7 What I say to you is there is just as much

8 a possibility that the police officers conducting two

9 simultaneous interviews obtained a list of names from

10 Jameson and put them to Tracey Clarke, and said, "Was

11 it, 1, Forbes; 2, Hanvey; 3, Bridgett?" and so on,

12 because in my submission that information is presented

13 in a most peculiar way, in an enumerated list.

14 Secondly, it is exhaustive. She does not say,

15 "There were others who were involved in the kicking,

16 whom I couldn't identify". She doesn't say, "There was

17 a man with a grey sweatshirt kicking, but I don't know

18 him". She names a comprehensive list of five.

19 Also, in my submission, significantly, she suggests

20 that she saw other people kicking the second body lying

21 on the ground, but she names none of them. There is no

22 detail. She does not give descriptions of any of them,

23 as Mr Green has pointed out. One has nothing, only the

24 damning list of five individuals. In my submission,

25 Tracey Clarke's account of that is that she was prompted

1 by police to give that information, and I say that's

2 entirely consistent with the anatomy of the statement

3 when one properly considers it.

4 If I come then, very briefly and finally, to deal

5 with some of the points that have been made by others,

6 my learned friend Mr Daly for Andrea McKee has described

7 Tracey Clarke's stance and evidence here as a belated

8 volte face. He suggests that her original statement was

9 entirely truthful and that her retraction of parts of it

10 is unbelievable. He prays in aid two sources for the

11 obvious veracity, he says, of the original statement.

12 The first is reliance on the senior coroner. He

13 says the senior coroner, Mr Leckey, found Tracey Clarke

14 to be truthful. Well, in my submission, that is not

15 what he found at all. Very briefly, if I can invite to

16 you look at document page [00270], one has here a file

17 note of a telephone conversation between Mr Leckey and

18 Tracey Clarke. About five lines down, he says:

19 "When she spoke to me, she was very tearful and

20 I was completely satisfied that she was genuine."

21 Now, if the inference there is that she was truthful

22 in her original statement, that, in my respectful

23 submission, stands to be rejected. Indeed, the coroner

24 did not say that when he subsequently wrote about this

25 issue, if one looks at the document at page [00464]. It

1 may be on the next page actually, [00465]. Sorry. Back

2 to the first page again, [00464]. The third

3 paragraph down:

4 "I also informed you that I had spoken personally to

5 the witnesses and to the police officer in charge of the

6 investigation and that I was satisfied that the

7 witnesses' fears and concerns were genuine."

8 The coroner was not commenting on the truthfulness

9 or veracity of any statement, what he is saying is,

10 "This woman phoned me, and she was terrified, and

11 I believed her", nothing more than that.

12 The second component which my learned friend Mr Daly

13 relies upon for saying she must have been telling the

14 truth the first time round was that Mr Kerr QC, the

15 Crown prosecutor, found her to be a truthful witness.

16 Well, the thrust of the argument on that, as far as one

17 can discern, is that she is truthful because she was

18 able to recite the events of the night without having

19 refreshed her memory from her statement.

20 In my submission, that's an unfair analysis.

21 Tracey Clarke was able to relate the events of the night

22 in question. She was able to relate the events which

23 led to the taking of her statement, because they must

24 have been undoubtedly the most momentous events in her

25 18 years of life at that stage. How could she forget

1 it? The fact that she didn't need prompting of her

2 statement suggests nothing more than this was a young

3 woman of ability and capability who did not forget what

4 she had done.

5 I again invite the Panel to accept my learned friend

6 Mr Green's analysis of her as an impressive witness.

7 So the indicators which are relied upon to suggest

8 that her statement was truthful are, in my submission,

9 flimsy, ultimately. What one sees here is a statement

10 that is a confection, as she described. Some of it is

11 true, some of it is false, some of it is her words and

12 some of it is not. I invite the Inquiry to find that.

13 If you find that, you will not subject her to any public

14 criticism or censure, because it does not warrant it.

15 Indeed , in my respectful submission, for what she

16 has done, she has publicly and candidly accepted that

17 she has been false in her account and she has atoned

18 enough, in my submission, for that.

19 If I could just correct one error, which I think my

20 learned friend Mr Green made in his submission, it was

21 suggested there was a medical note presented whereby she

22 recorded that Allister Hanvey was involved.

23 My recollection is there was a medical note produced

24 in September from Dr xxxxxx, who is a psychiatrist, which

25 suggested she made admissions to an SHO when she was

1 admitted for critical and crucial care in February of

2 2009. Miss Clarke was asked if she consented to her

3 medical records being seen by the Inquiry and she said

4 yes. When her records were seen by the Inquiry, I think

5 it was accepted there were no such admissions made and

6 she had simply given a narrative account to the SHO of

7 the circumstances of the Inquiry and what was involved

8 for her.

9 So, Chairman, Panel members, it is my respectful

10 submission that, whatever the Inquiry does in terms of

11 criticising public authorities and individuals, there

12 is, in my submission, nothing to be gained by subjecting

13 this young woman to any public censure. Those are my

14 submissions

15 THE CHAIRMAN: Thank you.

16 MR UNDERWOOD: May I just answer a question that you raised

17 about whether there was a contemporaneous note by

18 Mr McAteer of how exactly this matter was brought to his

19 attention?


21 MR UNDERWOOD: His notebook entry, which is at page [53308],

22 does not make any reference to this matter at all,

23 either to it being brought to his attention or to him

24 taking any action on it by way of interviewing

25 Andrea McKee.

1 The first time this appears to have cropped up in

2 documentary form is in November 2000, when DCI K

3 interviewed Mr McAteer. We see that at page [22686].

4 If we pick up the first half of it -- it is not entirely

5 easy to read -- halfway down the part we have on the

6 page:

7 "Early evening on 8/5/97, DC McAteer recalls a local

8 policeman, Davy McCaw, coming into the office to speak

9 to him. DC McAteer cannot recall exactly what Mr McCaw

10 told him but believes that he mentioned the name

11 Tracey Clarke and that she was at the incident on the

12 night in question and may have witnessed something -

13 states that he would have spoken to a senior officer

14 about it but does not recall which senior officer he

15 spoke to - states that he went with DS Bradley to the

16 home of Tracey Clarke at [blank] where they interviewed

17 her."

18 His evidence to us, you will recall, is, once this

19 was brought to his attention, he thought what he would

20 try to do was get a questionnaire from Tracey Clarke.

21 That was the first step. He took that, as it were,

22 without prejudice, with a view to seeing what happened

23 after that, but it is fair to say, as my friend asserts,

24 there is nothing contemporaneously which suggests that

25 what Andrea McKee said about this was true. So there is


1 the issue.

2 THE CHAIRMAN: Thank you.

3 (1.20 pm)

4 (The hearing adjourned until 10.30 am

5 on Tuesday, 15th December 2009)


Closing submissions by MR GREEN .................. 1
Closing submissions by MR McGLEENAN .............. 71


















Associated Evidence

Reference Title Description
Coroner Attendance Note (270)
Letter - John Leckey. Coroner to Barra McGrory (00464)
Statement Andrea McKee (20297)
Journal Entry DCI K (22670)
Journal Entry DCI K (22685)
Transcript of Evidence at R v Hobson Constable Neill (8542)
Notebook entry - DC McAteer (53308)