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Transcript (Afternoon Session)

Hearing: 15th December 2009, day 75

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Held at:


20-24 York Street



on Tuesday, 15th December 2009

commencing at 2.15 pm


Day 75

1 (2.15 pm)

2 Closing submissions by MR ADAIR (continued)

3 MR ADAIR: Just to complete what McNeice said in his

4 evidence, sir, Day 9, 27th January at page 78, do you

5 remember I had been saying it is not absolutely clear

6 whether Hull, in fact, saw anything at all in terms of

7 an assault when he arrived down at the junction?

8 You will see at line 20 -- stop there -- at the top

9 of the page:

10 "Question: Can the Panel take it that no further

11 assault occurred after you and Colin Hull arrived at the

12 function, as far as you are concerned?

13 "Answer: As far as I am concerned, yes, I think.

14 I can't remember any other assaults anyway, no.

15 "Question: At the risk of repeating myself,

16 Mr McNeice, if there had been, you would remember them?

17 "Answer: Probably."

18 So it looks like what he is saying in his evidence

19 as opposed to what he said in his statement is, when he

20 and Hull arrived at the junction, they are confronted

21 with P40, what would appear to be P40, and there were no

22 assaults taking place at that time.

23 Now, I have been saying, sir, that what Hull and

24 McNeice have done is shameful in terms of they have

25 positively made assertions which have resulted in the

1 vilification of the Land Rover crew for a number of

2 years.

3 There is another person I should mention in this

4 context, not in the term of a positive assertion, but in

5 terms of omission, and that's Prunty, because we know

6 from Prunty's statement and evidence that he was one of

7 those immediately on the scene of the attack. We know,

8 also, that he has told us that he actually saw the

9 police intervening and pulling somebody away from the

10 attack.

11 Now, I will be dealing with precisely what he said

12 in due course, but it is absolutely clear he saw police

13 on the street pulling people away from the area where

14 Robert Hamill and/or D were being attacked.

15 This is at a very early stage after the assault

16 occurred.

17 Now, we also know, sir, that in the ensuing weeks,

18 months and years following this attack, the Hamill

19 family made public their belief, as did others, that the

20 police had sat in the Land Rover and watched while this

21 attack occurred and had done nothing.

22 Now, Prunty knew otherwise. We know that he spoke

23 to Diane Hamill. If we call up Diane Hamill's evidence

24 of 3rd April. I am sorry I don't have the day, but it

25 is 3rd April. Page 26. Just starting at line 10:

1 "Question: The final thing just I want to ask you

2 about is just in relation to Mr Prunty, Colin Prunty.

3 Do you know Colin Prunty?

4 "Answer: I do, yes, I do.

5 "Question: Had you talked to him about what he had

6 seen?

7 "Answer: I had heard that Colin Prunty had

8 approached a police officer who had let someone out of

9 a Land Rover, and I approached Colin Prunty myself.

10 "Question: did you talk to him about what he had

11 seen?

12 "Answer: Yes, I did, yes.

13 "Question: Well, did he not you, as he has told

14 others, that the police got out of the Land Rover when

15 Robert was on the ground and tried to get in to break it

16 up, but it was to no effect because there wasn't enough

17 of them?

18 "Answer: No, he did not tell me that at all. The

19 first I heard of that was in this Inquiry."

20 So it would appear that although Diane Hamill had

21 spoken to Prunty about what he'd seen, that he didn't

22 tell her what, in fact, he'd seen. This in the face of

23 the public knowledge that everybody in this country had

24 of the nature of the allegations concerning the police.

25 It is of considerable regret, as far as the Hamill

1 family are concerned, that Prunty did not make them

2 aware of what he had seen. I suppose, unlike, as I say,

3 Hull and McNeice, an omission as opposed to a positive

4 assertion, but nevertheless equally reprehensible, in

5 our respectful submission.

6 THE CHAIRMAN: Was Prunty asked about what he said to

7 Diane Hamill?

8 MR ADAIR: I don't recall, sir. I will -- I see my junior

9 is here today, so I will get him to check that.

10 THE CHAIRMAN: That's a rather left-handed compliment.

11 MR ADAIR: So that deals with how these allegations have

12 arisen and the context in which they have arisen and, of

13 course, in our respectful submission what this boils

14 down to now, as sir, as far as the Land Rover crew are

15 concerned, is that we are dealing with an entirely

16 different sort of issue. We are dealing essentially --

17 I think you have used the word "vigilance". We are

18 dealing with a vigilance issue as opposed to

19 an intentional, deliberate, or act of wanton disregard

20 for the life of a young man in the centre of Portadown.

21 The difference in the terms of what we are dealing

22 with is chalk and cheese, in our respectful submission.

23 It may be, it may be, and I will come to this very

24 shortly, that the Panel will find there was a lack of

25 vigilance, but how far apart is that from the

1 allegations that originally were the foundation for this

2 Inquiry in relation to the conduct of the Land Rover

3 crew?

4 Now, I want to deal briefly, sir, sequentially, with

5 the issues that thereafter arose. I suppose the first

6 in terms of sequence is the lead-up to the attack. What

7 happened in the lead-up to the attack?

8 Now, the relevance of this -- let me make it

9 absolutely clear, as others have done, that whatever the

10 lead-up to the attack was, and I just state it, lest

11 there be any question that I'm suggesting otherwise,

12 there can be no justification for what ultimately

13 occurred to either Robert Hamill or D. The people who

14 did this were murderers and should be thoroughly ashamed

15 of themselves.

16 Having got that out of the way, it is of some

17 relevance to determine whether or not we can ascertain

18 what was the lead-up to the attack.

19 Now, as far as the evidence is concerned, I am not

20 going to go through it, sir, in detail, because it is

21 conflicting both as between what I am describing as the

22 independent witnesses, P42 and others, and D, E and F

23 and potentially Mr Prunty.

24 There is also the bar staff, obviously, that one has

25 to consider.

1 Now, you will recall that Mr McGrory in his written

2 submissions went to some considerable lengths to suggest

3 that possibly there was another group who were

4 responsible for the shaking of the shutters, for the

5 shouting of the -- whatever was shouted, whether it be

6 sectarian or otherwise, and that there was a possibility

7 that some other group, either before or after D, E and

8 F, were responsible for this.

9 Now, I noticed that he didn't in his oral

10 submissions pursue that, but nevertheless it is

11 something which I have to address

12 THE CHAIRMAN: We do have some difficulty, don't we, in

13 placing what those inside Jameson's bar say they heard

14 and saw in the sequence of events happening on the

15 street?

16 MR ADAIR: That's right. I think my answer to that, sir,

17 would be this. If we are dealing with probabilities, as

18 I understand we are in coming to a conclusion as to what

19 we think occurred, my submission would be that, unless

20 some other phantom group was out and about on this night

21 at or around the time -- let me put it that way -- that

22 the group D, E, F and others were making their way down

23 the street, unless there was some other phantom group

24 which nobody has mentioned, neither D, E, F, Prunty

25 or -- I see the Baroness about to come in on that, so

1 I will pause for a second.


3 mind was the evidence we heard that there were about 100

4 people waiting for taxis. I mean, it is an inference

5 that could been drawn that there were other people

6 walking down, although we have not heard any.

7 MR ADAIR: That's a possibility. It is certainly

8 a possibility that there was another group.

9 Dealing with probabilities, our submission is that

10 the probability is that the group that were engaged on

11 the shaking of the shutters of Jameson's bar were the

12 group that included D, E, F and Prunty.

13 One can, of course, say as a possibility, Baroness,

14 that another group came down. If it was after the fight

15 started, then one is faced with trying to envisage

16 a major fight going on down at the junction, police

17 involved trying to intervene, but this other group,

18 then, for some reason, deciding to shake the shutters

19 outside Jameson's. It seems, with respect, unlikely.

20 So if we are dealing with probabilities, our

21 submission is that the probability is that D, E, and F,

22 that group, were involved in what might be described as

23 the aggressive behaviour coming down Thomas Street.

24 Now, P42 was criticised, and you will recall the

25 submissions that were made in respect of P42 by

1 Mr McKillop who, appears on behalf of D, E and F in

2 particular. The allegations essentially were that he

3 was pro-police.

4 Now the reasoning for that is that his partner's

5 father was a retired policeman. So, therefore, he is

6 pro-police. The first thing I say is there is nothing

7 wrong with being pro-police. We would submit that

8 someone who is "pro-police", in the sense of anxious to

9 make a statement setting out what they saw or heard, is

10 to be praised as opposed to being criticised.

11 The inference I assume that is sought to be drawn

12 from using the words "pro-police" is, therefore, he made

13 a false statement supporting the police account, in some

14 way, of what occurred on this particular evening.

15 Criticism is also made of when the letter was

16 written. You will recall the debate, sir, about the

17 date on the top and the words that were used as to

18 whether it would say "on that night" or "last night",

19 and that criticism in relation to the date.

20 The final thing that was alleged was, if the guiding

21 light -- a bit like Mr McGrory's guiding hand -- was

22 Maurice Hewitt, who is the father of the partner --

23 I want to say this about that, sir. None of this was

24 ever put to P42, first of all. Secondly, Maurice Hewitt

25 made a statement for the purposes of this Inquiry. He

1 was read to the Inquiry. Now, to the best I can

2 ascertain, no request was ever made for Maurice Hewitt

3 to come and give evidence so that these allegations

4 could be put to him.

5 So, in fact, once again, in a much lesser sense, but

6 nevertheless in a real sense, what we have are

7 allegations being made against somebody who has not had

8 the opportunity to either answer them or deal with them.

9 Now, they are not the most serious allegations in

10 the world, and I suspect Mr Hewitt will not lose much

11 sleep over it, but nevertheless, they were allegations

12 that were put, both concerning P42 and Hewitt, none of

13 which were ever touched upon, even peripherally, when

14 either P42 was being cross-examined or when it was

15 indicated that Hewitt would simply be read.

16 Sometimes, sir, in our submission, one has to look

17 and see whether there is one particular piece of

18 evidence that stands out like an alarm bell as to

19 whether the person is telling the truth. As far as P42

20 is concerned, the one piece of evidence that stands out

21 in our submission as indicative of his truthfulness is

22 when he said he heard the warning being given by one of

23 the Catholics to the other Catholic effectively not to

24 go down there, because there is trouble. I am not

25 quoting the exact words, but you will recall the

1 exact -- it is at page -- could you turn up [01038],

2 please? Just the top paragraph:

3 "On the date of the fight I observed two men and two

4 ladies walking in the direction of the town centre from

5 the fire station. One lady said not to walk any further

6 as a crowd of lads were standing at the corner bakery,

7 to which the man replied, 'This is a free country and

8 I will walk where the f*** I like'."

9 Now, we know that, according to F, she told --

10 sorry -- according to McCoy, I should say, she was told

11 words to that effect by F. Now, I will just leave it at

12 this. It would seem extraordinary if P42 were able to

13 recall such a conversation and it transpires from the

14 horse's mouth, in a sense, that words similar to that

15 were, in fact, spoken.

16 In our submission, it is something like that which

17 helps determine whether the person is telling the truth,

18 whether the statement is likely to be true.

19 It makes it more likely to be true. I know, sir,

20 that the retort might be to that: "Well, he might be

21 right about that and might be wrong or mistaken about

22 other things". That's absolutely right, but when one is

23 looking at probabilities as to whether what P42 says is

24 the truth, in our submission, that comment in itself,

25 with the ring of truth about it, will be of assistance

1 to you in deciding the issue.

2 Now, as I say, it is of limited, in our

3 submission -- I think the Chairman has also referred to

4 it -- the relevance is limited. Ironically, the

5 relevance of it is possibly two-fold, one of which is

6 actually against my interests in terms of the Land Rover

7 crew, because, ironically, if what seems, we submit,

8 likely to have happened was that there was aggression

9 coming down Thomas Street and shouting between two

10 groups, whether a group at the corner or peeking round

11 the corner and so on, then I have to deal with the

12 issue: why did the Land Rover crew not hear that?

13 By saying that we submit the probability was that

14 there was aggression by the group in Thomas Street, in

15 terms of your terms of reference it actually raises

16 an issue in one sense for the Land Rover crew, because

17 the next question is: why did they not hear the

18 altercation between the group, or see the group on the

19 corner? So in a sense it is against, I suppose, the

20 interests of the Land Rover crew to be suggesting the

21 probability is that it happened.

22 What I would say about that is we have both --

23 having been down there yourselves, inside the

24 Land Rover, and having heard people shouting from

25 Thomas Street in terms of whether or not the police

1 should have been aware of some aggression happening, we

2 would submit that it is very unlikely that whatever

3 shouting was going on would have registered with them,

4 having regard to the engine being on in the Land Rover,

5 their confinement and so on, as being aggression

6 happening at Thomas Street.

7 So I think I can answer the point on behalf of the

8 Land Rover crew

9 THE CHAIRMAN: Do you want to say anything about these two

10 points, which you may have to consider?

11 One, I am not sure whether it was one of the

12 submissions spoke to say: well, if it was difficult to

13 hear in the Land Rover, why not turn the engine off?

14 But also, if it is difficult to hear in the Land Rover,

15 that may perhaps place a greater importance on the

16 visual look-out.

17 MR ADAIR: Well, dealing with the first point, I think

18 realistically, sir, the four policemen in the middle of

19 Portadown simply would not turn their engine off.

20 I don't think it has ever been suggested by anybody that

21 would be an appropriate course of action to do, because,

22 first of all, it might limit by a second or two a quick

23 response away somewhere, and I just, sir, find it hard,

24 with respect, to envisage a situation where four

25 policemen in the middle of Portadown would turn off

1 their engine. I suspect they would regard it as

2 a foolhardy thing to do.

3 In respect of the second point as to whether they

4 would, therefore, be more vigilant in looking out

5 because of the restriction in terms of noise, I think

6 that's a valid point.

7 The other relevance of -- I will be coming to it

8 shortly -- a finding in relation to what occurred in

9 Thomas Street in respect of the build-up to the incident

10 is in relation to -- and I just mention it at this

11 point, sir, but I will be coming back to it -- this

12 question. If the Panel find, for example, there was

13 a lack of vigilance on the part of the Land Rover crew,

14 the next question is: did that lack of vigilance

15 facilitate or in any way cause Robert Hamill to suffer

16 the injuries he did?

17 It will be relevant in dealing with that issue

18 whether there is a finding that the group coming down

19 Thomas Street were, in fact, already an aggressive group

20 and engaged in fighting before they actually spilled out

21 on to the main street, but I will come to that in due

22 course.

23 So there are two potential aspects of relevance to

24 what happened in the build-up to the incident. One, as

25 I say, is a question that I have to deal with on behalf

1 of the Land Rover crew, and the other is in relation to,

2 what would have happened, even if they had heeded the

3 warning? It is relevant, in our submission, to that.

4 THE CHAIRMAN: Can you help us about this? Suppose we were

5 to come to a conclusion that there was a lack of

6 vigilance. We may find ourselves not able to do more

7 than to say that lost whatever chance there may have

8 been of stopping any violence. It may be put in various

9 ways, different degrees. You would not say, would you,

10 that our terms of reference would not allow us to make

11 that second finding?

12 MR ADAIR: The terms of reference talk about "wrongful".

13 THE CHAIRMAN: I am asking the question on the hypothesis

14 that that lack of vigilance was wrongful.

15 MR ADAIR: I see. I am sorry, sir. Could I ask you to

16 repeat the question again?

17 THE CHAIRMAN: If we were to say there was a lack of

18 vigilance and that was wrongful, culpable -- use

19 whatever word you like for it --

20 MR ADAIR: Yes.

21 THE CHAIRMAN: -- we may be able to say, "If they had done

22 this, that or the other", there would not have been any

23 trouble". We may not be able to say that. We may be

24 able to say, "There was a chance of a greater or less

25 degree", depending on how we see it, "that violence

1 would have been prevented".

2 In the latter case, are you saying it would fall

3 outside our terms of reference?



6 MR ADAIR: I think you have to deal with that issue, sir.


8 MR ADAIR: I have been trying to think of the words that one

9 might express it in, even from our point of view, but

10 obviously they are so enormous that I think I am glad to

11 leave it to you, sir.

12 Now, if I might turn then to the Land Rover crew,

13 sir, and what they did on this particular night.

14 I have already dealt with the original allegations

15 that were made against them and where it now seems to

16 be. We seem to be, subject to your finding, of course,

17 sir, at the end of all this, but we seem now to be

18 dealing with either a distraction or lack of vigilance

19 or, as Mr McGrory says, taking their eye off the ball.

20 I think it is worthwhile just looking, we

21 respectfully say, briefly at what exactly was going on

22 at the time they were talking to Bridgett and Forbes and

23 what exactly the nature of the warning was that was

24 given by Mr Mallon.

25 Now, if could you take up Mallon's statement at

1 page [09092]. It starts at [09091] but the relevant

2 part is at [09092]. If you highlight the top half of

3 that page:

4 "I waved at them to attract their attention.

5 I crossed to them. I don't know whether I went in front

6 of the Land Rover or not, but the police knew that I had

7 waved at them. A policewoman opened the front

8 passenger's door and I told her that there was likely

9 people to be coming from St Patrick's Hall."

10 Dealing with this issue of what Mallon told them,

11 there was likely people to be coming from

12 St Patrick's Hall.

13 I make the following comments about that, sir.

14 First of all, neither in his statement, or, indeed, as

15 we will come to in a moment, in his evidence, did he

16 assert there were people coming from St Patrick's Hall.

17 There was a likelihood there were people coming from

18 St Patrick's Hall. Nowhere, either in his statement or

19 in his evidence, for example, does he assert that he

20 said to the police, "By the way, these people are in

21 a drunken aggressive mood and there is likely to be

22 trouble".

23 I think -- it is not that I think -- we submit that,

24 in our submission, you have to be careful to distinguish

25 between a warning which says there are likely to be

1 people coming from St Patrick's Hall and a warning which

2 says, "There are people, first of all, coming from

3 St Patrick's Hall, and, what's more, they have some

4 drink in them and they are yo-hoing and there could be

5 trouble here."

6 THE CHAIRMAN: Wouldn't police officers on that particular

7 duty be expected to realise that if people were coming

8 down from St Pat's, they might have had a deal to drink,

9 just as those getting off the bus?

10 MR ADAIR: I wouldn't speak ill of the Catholic community,

11 sir, in that way.

12 THE CHAIRMAN: I am not asking you to.

13 MR ADAIR: The reality is, yes, of course. The point I am

14 making is a rather discrete point in relation to that.

15 I can see immediate criticism without more, if, for

16 example, the police were told, "Look, there are people

17 coming down there. They are a bit rowdy. Watch out".

18 This may only be relevant, sir, to the strength of

19 criticism in relation to the lack of vigilance as

20 opposed to your finding as to whether there was proper

21 vigilance.

22 REV. BARONESS KATHLEEN RICHARDSON: If they had not heeded

23 a warning, it would have been negligent, but if they had

24 taken note of the fact that something was going to

25 happen, it would have been just a thing they needed to

1 do. Sorry.

2 MR ADAIR: It is one thing to ignore a direct warning of

3 impending trouble and another thing to ignore a warning

4 of potential trouble.

5 Now, as I say, sir --

6 THE CHAIRMAN: That's why the police are there, isn't it?

7 MR ADAIR: Of course it is.

8 THE CHAIRMAN: Because there is the potential for trouble.

9 MR ADAIR: Of course. I mean, I will be coming on to make

10 my final submission in due course about vigilance, and

11 it may be, as I say, that these matters are more

12 relevant to a strength of criticism that might be made

13 of a lack of vigilance as opposed to whether or not

14 criticism is warranted.

15 Really, what I am saying is it may well be, at the

16 end of all this -- sometimes, sir, I am not absolutely

17 sure myself whether I am going to concede something or

18 not -- it may well be that at the end of your

19 deliberations, you will find there was a lack of

20 vigilance.

21 Now, a lack of vigilance encompasses many different

22 scenarios. One scenario, as I say -- and at the risk of

23 repeating myself -- is where there is a direct warning

24 of impending, immediate trouble. Another scenario is

25 where there is a warning about possible trouble.

1 Obviously, the criticism in relation to the former would

2 be more severe than the criticism, we submit, in

3 relation to the latter. Of course they are there to be

4 vigilant. They are there to protect the public. One

5 cannot gainsay that, but there are degrees -- I suppose

6 to sum it up, there are degrees of lack of vigilance.

7 It is not a very eloquent way of putting it, but that's

8 really what it boils down to.

9 I was tempted to give an analogy --

10 THE CHAIRMAN: Degrees of culpability in lacking vigilance.

11 Is that right?

12 MR ADAIR: That's a much better way of putting it, sir.

13 That's really what I am saying.

14 Indeed, as you will recall then, in his evidence on

15 20th January of 2009, and that's at page 60, Day 5

16 starting at line 5 near the top of the screen:

17 "Answer: I think it -- was it a woman police

18 constable driving it? I thought it was a woman driving

19 it.

20 "Question: I am afraid I am going to have to try to

21 press you to give the answers rather than --

22 "Answer: I believe it was a woman driving the

23 Land Rover.

24 "Question: All right.

25 "Answer: I am not sure whether they opened the door

1 or wound down the window. I spoke directly to them,

2 I can tell you. Do you want me to tell you what I said

3 to them?

4 "Question: Please.

5 "Answer: I said, 'Are you leaving here or are you

6 moving away?' They said 'Why?' I said, 'because I have

7 just come from up the street and there are likely to be

8 people coming down behind me'.

9 They asked me where I'd come from. I said I'd come

10 from St Patrick's Hall. They said 'Yes'."

11 So again, in very similar terms to the terms that he

12 put in the statement, he has told us about the warning

13 that he gave to the police.

14 So all I am asking, sir, is that you view whatever

15 criticism you may have in terms of the vigilance, in

16 terms of the immediacy of the warning Mr Mallon issued.

17 I am not suggesting that the police wouldn't have

18 been aware of potential trouble between people coming

19 from St Pat's Hall and coming up from the Coach, and

20 that this was a flash point and so on. I am not

21 disputing that at all. I am just saying the warning was

22 not of the immediacy or of the impending looming danger

23 that would have inevitably expected a response from the

24 police.


1 So that's the first matter I ask you to consider in

2 relation to the Land Rover crew. The next issue, of

3 course, that concerns the Land Rover crew is in relation

4 to Stacey and Bridgett and that was happening with

5 Stacey and Bridgett

6 In our submission, sir, what was happening between

7 Stacey Bridgett and the Land Rover crew was

8 a potentially immediate problem for the police. I beg

9 your pardon. Forbes and Bridgett.

10 If we look at Mr Mallon's statement, which I seem to

11 have mislaid for a second -- if you could call up

12 Mr Mallon's statement. It is on the screen now. Now,

13 here is what was happening between the Land Rover crew

14 and Forbes and Bridgett, according to Mr Mallon.

15 If you highlight the first half, please. I had read

16 down to:

17 "... coming from St Patrick's Hall".

18 It continues:

19 "As I turned to walk away, I was approached by

20 a youth. There was a group of maybe four or five with

21 him. They all looked to be about 18 or 19 years of age.

22 The youth that approached me asked where I was going.

23 I felt threatened by the whole situation. I was

24 apprehensive. I saw that he was carrying a glass bottle

25 of Buckfast in his right hand. I was concerned that

1 I might be hit with the bottle, although this youth did

2 not make an attempt to hit me. Because I was concerned

3 about the bottle, I held my hands out in front of me."

4 So according to Mr Mallon, the police have at least

5 two people -- according to the police, there were just

6 two -- according to Mallon, there were four or five, but

7 it seems more likely to be two, you may think -- but the

8 police sitting in front of them had two Protestants who

9 had come up from -- whom they knew to be Protestants

10 and, in Mr McGrory's words, knew to be trouble-makers,

11 more importantly. Two trouble-makers, two Protestant

12 trouble-makers standing in front of them in the street

13 with a bottle of Buckfast in their hands, a Catholic

14 standing with his hands out in front of him because he

15 is apprehensive and frightened.

16 Now, the suggestion is that by engaging with Forbes

17 and Bridgett and keeping an eye on Mr Mallon, as Neill

18 said he did, as he made his way up Mallon Street

19 to ensure nothing occurred between the two Protestants

20 and Mr Mallon, that they were distracted, took their eye

21 off the ball or lacked vigilance.

22 Now, I would like to pose the rhetorical question.

23 Say, for example, these two Protestants, Forbes and

24 Bridgett, just after the police had been given the

25 warning by Mr Mallon, the police then head off straight

1 up to Thomas Street, aware that Mr Mallon, a Catholic,

2 is being approached by two Protestants with a Buckfast

3 bottle. He has his hands out in front of him in

4 protective mode and they say, "Oh, no. There is

5 a potentially violent incident in Thomas Street. We are

6 going to ignore the immediacy of this incident and leave

7 Mr Mallon to his own devices". Just imagine the Inquiry

8 then. Just imagine the cross-examination of

9 Constable Neill and the officers in the Land Rover.

10 "You saw this man with his hands out in front of him

11 frightened. You know he's a Catholic. You see Stacey

12 and Bridgett, two trouble-makers. You know they

13 are Protestants. You see them confronting each other.

14 What do you do? You just drive on because there is

15 likely to be people coming down Thomas Street? So off

16 you go, leave him to his own devices." Mr Mallon is

17 kicked to death.

18 I rhetorically ask the question: would they be

19 lacerated for it? Of course they would. They would be

20 absolutely lacerated for leaving, which would be

21 leaving, a defenceless Catholic on the main street in

22 Portadown being confronted by two trouble-makers, who

23 the police know to be trouble-makers.

24 Now, in our respectful submission, sir, when it is

25 posed that way, rhetorically one can see immediately the

1 dilemma that the police have. Do you deal with the

2 immediacy of a violent situation or do you leave that to

3 one side and make your way to Thomas Street?

4 I know I am going to be asked within a very short

5 period of time: should they have continued to talk to

6 Stacey and Bridgett once the situation had calmed,

7 normalised? My answer to that is this. According to

8 Constable Neill, he was watching Mallon as he made his

9 way up Woodhouse Street to make sure he was all right.

10 I rhetorically ask: is that not a perfectly reasonable

11 thing for a police officer to do? In the meantime, they

12 are engaged in a brief conversation with the very two

13 trouble-makers who potentially were going to cause the

14 problem.

15 Now, we rhetorically ask the question: is that

16 an unreasonable thing for the police to have done? In

17 fact, I put it another way. It was the eminently right

18 thing for them to have done.

19 The only question, in our submission, that possibly

20 needs resolution is whether the conversation lasted too

21 long with Forbes and Bridgett.

22 Now, to say that that's asking for perfection is

23 putting it modestly. They are dealing with two

24 trouble-makers. They have engaged in a conversation.

25 They are ensuring Mr Mallon's safety. To say, because

1 there was a casual conversation, therefore there was

2 a lack of vigilance is, in our submission, sir, asking

3 for perfection.

4 THE CHAIRMAN: To help us to consider that, there are two

5 matters you may be able to help us about.

6 How many people did it need to keep an eye on Forbes

7 and Bridgett so that there was nothing untoward with

8 Mallon, and how many seconds before he had obviously got

9 underway safely and they were not bothered?

10 MR ADAIR: It seems on the evidence that Mallon was underway

11 in a fairly quick time. You will recall at the end of

12 the statement, sir -- I had forgotten to mention this --

13 he mentioned to his wife he felt lucky to be home.

14 Another description of how fearful and apprehensive the

15 whole situation down in the middle of the street was for

16 him. If you turn over the next page of Mr Mallon's

17 statement -- it must be on the previous page [09092].

18 The last four or five lines:

19 "When I went to bed, I told my wife what had

20 happened and I felt lucky."

21 Obviously referring to the incident down

22 Thomas Street. So the effect of the evidence, sir, is

23 that he made his way away from the Land Rover fairly

24 quickly. Both his evidence and I think the evidence of

25 the police officers is to that effect.

1 Thereafter, Constable Neill's evidence is that very

2 reasonably, in our submission, he kept an eye on him

3 going up Woodhouse Street while at the same time being

4 engaged in what is undoubtedly a casual conversation

5 with the two Protestants.

6 Now the timescale of whether Mallon had disappeared

7 from view in Woodhouse Street before Neill was pulled

8 from the Land Rover, sir, with respect, I don't think

9 any of us can answer. It may be that he was out of view

10 and out of danger, but we have heard so many different

11 accounts as to how long this occurred, how long the

12 conversation lasted.

13 I mean, Mr McGrory related the conversation and gave

14 us the contents of it. I meant to keep a watch on it,

15 but Mr McGrory's submissions lasted about 25 seconds on

16 the point. It could have been 25 seconds, the

17 conversation, "Where are you working? Are you still

18 working for Bobby Jameson?", "Yes, I am, yes". There

19 you are. It is said and done. It is not clear, in our

20 submission, how long this lasted


22 did meet Colin Hull when he got further down

23 Woodhouse Street, didn't he? He says he met Colin Hull.

24 Does that give a timescale, according to what you were

25 originally saying, about the time Colin Hull managed to

1 get down and it was all over by that time?

2 MR ADAIR: Well, it is possibly of some assistance. My

3 problem with Colin Hull is I just don't know what to

4 accept of what he says.


6 evidence as being correct, then the likelihood is that

7 he saw Colin Hull coming down Woodhouse Street, rather

8 than --

9 MR ADAIR: I think that's right. So the time interval has

10 to be extremely short. Of course, my learned junior

11 reminds me that Mallon says he saw police officers

12 getting out of the Land Rover. So he can't have been

13 out of sight in Woodhouse Street. Obviously, if he can

14 see them, they can still see him. So the time interval

15 has to be in seconds, a minute or slightly longer than

16 that, but it is an extremely brief period.

17 To say, in our submission, therefore, there was

18 a lack of vigilance, in our submission, sir, just would

19 not be fair to the officers. As I say, if Mr Mallon had

20 been attacked by these two trouble-makers and had

21 suffered serious injury or death, the cross-examination

22 of them would have been devastating, putting to them,

23 "You knew they were trouble-makers. You knew he was

24 apprehensive, knew he was in fear", unlike what's going

25 on at Thomas Street, where we know Constable Neill

1 actually said, after Mallon gave him the warning, he

2 looked up Thomas Street but could not see anything.

3 We know, of course, that from where he was looking

4 he could only see up a certain portion of Thomas Street,

5 but nevertheless he made that check.

6 So, in our submission, it would be unfair to

7 criticise the officers for dealing with an immediately

8 potentially violent situation as opposed to abandoning

9 Mr Mallon and going on their way to deal with

10 a potential situation in Thomas Street when they had

11 already looked up Thomas Street and no-one was coming

12 down. It is our submission that the overall effect of

13 the evidence is that the conversation with Bridgett and

14 Forbes was a very limited and brief one, and a perfectly

15 proper thing for the police to do. In effect, what they

16 are doing is engaging them in conversation and ensuring

17 there was no trouble between them and Mallon where there

18 had been that potential a very short time before.

19 So, in our submission, the very heart of this is

20 that -- we say, in fact, the police acted quite properly

21 in concerning themselves with looking after the

22 interests of Mr Mallon, which was an immediate problem

23 for them, and the suggestion that, while that may be

24 right, but they should have gone away quicker is not

25 justified, because we know, for example, as I say, that

1 Mallon saw the police getting out. So it has to be

2 seconds

3 THE CHAIRMAN: Just help me. Did any of the four people

4 from the Land Rover crew say the reason why there was

5 this conversation was to gain Forbes' and Bridgett's

6 attention and make sure Mallon got away in safety?


8 THE CHAIRMAN: This consideration first comes in the

9 submissions, doesn't it?

10 MR ADAIR: That's the effect of what they were doing,

11 I think was the submission that I was making. That's

12 the effect of what they were doing, talking to these two

13 trouble-makers. My recollection is that none of them

14 said, "We formed a conscious decision to engage with

15 them so as to ensure Mr Mallon got away", but in effect,

16 that's what they were doing, what they did.

17 If, of course, sir, they had not engaged with the

18 two men knowing that there had been a -- confrontation

19 is perhaps too strong a word -- meeting, or Mallon had

20 put up his hands and they had simply ignored that

21 situation without engaging them and driven away, I can

22 imagine my colleagues saying to Constable Neill, "Why

23 didn't you call those people over and make sure that

24 Mr Mallon got away? Why didn't you engage them in

25 conversation?"

1 It can't be a no-win situation, sir, for the police.

2 I mean, they have to be able -- if there is an immediate

3 problem, surely it is reasonable for them to deal with

4 it?


6 credence to the suggestion that they were deliberately

7 distracted by Forbes and Bridgett?

8 MR ADAIR: Well, I don't think anybody gives -- I am sorry.

9 I beg your pardon, ma'am.


11 them from what was going on in the street. You don't

12 give any credence to that?

13 MR ADAIR: I don't think I give any credence to that. That

14 seems probably too -- I know Belfast abounds with

15 conspiracy theories, but I think even that one is beyond

16 the Belfast conspiracy theorists.


18 THE CHAIRMAN: That would turn it into a pre-planned attack,

19 and all the evidence has been to suggest that it was

20 spontaneous.

21 MR ADAIR: I don't give credence to that. I am aware of the

22 other issues which were raised with BIW, which I am not

23 going to mention in relation to these two gentlemen.

24 Our submission is, sir, that, far from being

25 criticised for what they did, in terms of lack of

1 vigilance, these officers should be praised. They

2 should be praised for looking after the interests of

3 Mr Mallon. They should be praised for being concerned

4 about Mr Mallon. They should be praised for engaging

5 the two trouble-makers with the effect of ensuring they

6 no longer pursued Mr Mallon.

7 Even if they are not to be praised for, I suppose,

8 what might be described as just doing their job, it is

9 quite a different thing to say, "We are going to

10 criticise them because they carried out their proper

11 functions in protecting Mr Mallon and ignored this

12 warning about a potential problem coming from

13 Thomas Street". Those seem to be the two sides or two

14 extremes of the equation.

15 So that's our submission, sir, in relation to the

16 actions of the Land Rover crew. It was suggested during

17 the course of Mr McGrory's submissions that there was no

18 aggression on the part of Forbes and Bridgett, but it is

19 quite clear from Mr Mallon that there was aggression to

20 the extent he felt it necessary to put up his hands in

21 a protective manner.

22 Now, I mention briefly at this stage, sir, the issue

23 as to: when did Constable Neill and others get out of

24 the Land Rover? I have to mention it, because of

25 a submission that was made on behalf of BIW that they

1 had a fundamental problem. I am not going to quote the

2 nonsensical argument that they presented for justifying

3 the proposition, but I mention it because it has never

4 been suggested, as I understand it, during the course of

5 this Inquiry, that Constable Neill and the others got

6 out at any other time other than immediately on being

7 pulled out by the man who said words to the effect, "You

8 sat there and watched that happen".

9 It is our submission, sir, that it is patently

10 obvious that that is the moment in time when they did

11 get out of the Land Rover, and unless you wish me to go

12 further on that, sir, I think it is so patently obvious

13 that it speaks for itself.

14 I move then briefly to what occurred when the police

15 got out of the Land Rover. There has been much said

16 about Constable Neill and the fact that he asserted

17 effectively that the bodies were not on the ground when

18 he got out of the Land Rover.

19 In our submission, of course, there is a vast

20 difference between stating the bodies were not on the

21 ground and what he possibly should have stated, "In my

22 perception, the bodies were not on the ground". It is

23 very possible that the bodies were on the ground at the

24 time -- in fact, I think I would probably go as far as

25 to say probable that the bodies were on the ground at

1 the time that Constable Neill was pulled out of the

2 Land Rover.

3 That has been something obviously, sir, which has

4 caused -- has been of some considerable debate. While

5 I can't say, looking at the evidence, beyond

6 peradventure the bodies were on the ground, I, too, like

7 others, and I think others have mentioned this, find it

8 difficult to see why a person would use such startling

9 words if it hadn't been something as serious as two

10 people having been assaulted and ending up on the

11 ground. If it was just the fight at the corner of

12 Thomas Street and a couple of blows were struck, it

13 doesn't seem likely, the Panel may think, that a person

14 would rush over to a Land Rover and say "You have sat

15 there and watched that happen".

16 So it seems likely to us, sir, for what it is worth,

17 that the bodies were on the ground at the time

18 Constable Neill was pulled out of the Land Rover.


20 In our submission, the fact that Constable Neill has

21 said there were no bodies on the ground does not mean

22 that, in fact, there were no bodies on the ground. It

23 can equally mean that he did not see the bodies on the

24 ground at the time he got out of the Land Rover. That,

25 in our submission, is the likely scenario, that, having

1 regard to the volatile mayhem that was going on at the

2 time he was pulled out of the Land Rover, he did not see

3 the bodies on the ground.

4 The alternative has been suggested that there is

5 an ulterior motive for Constable Neill saying he did not

6 see the bodies on the ground, and it really is, in our

7 submission, asking him to do something rather ingenious,

8 with the greatest respect to him, for a constable and

9 three reserve constables out that night, that what they

10 must have done is, on the way back, 200 or 300 yards to

11 the police station or perhaps sitting in the Land Rover

12 have said, "We are in trouble here because we did not

13 get out of the Land Rover quickly enough. Therefore, we

14 all have to make up statements saying there were no

15 bodies on the ground whenever we got out of the

16 Land Rover".

17 With the greatest respect to my clients, in my

18 submission you are endowing them with an ingenuity and

19 some foresight that, perhaps, with the greatest respect

20 to them, they don't deserve. To have envisaged or

21 foreseen these issues arising in subsequent proceedings

22 is something which we respectfully suggest was not

23 beyond them, but pretty unlikely.

24 So it is our submission that ultimately -- you saw

25 and heard Constable Neill as well. I should have said

1 this at the outset, sir. I meant to mention this at the

2 outset. One of the critical matters in relation to all

3 these witnesses, having seen and heard them, there were

4 some witnesses, for example -- you will know, sir -- we

5 all know there are some witnesses one dreads appearing

6 in a witness box, and yet, when they appear, it is quite

7 apparent they are witnesses of truth. It is quite

8 apparent that they are telling you the truth, despite

9 what earlier reservations you may have had about their

10 written document. Constable Neill, in our submission,

11 was just one of those witnesses.

12 In our submission, it is absolutely clear that

13 probably the bodies were on the ground when the police

14 got out of the Land Rover

15 THE CHAIRMAN: Is one possibility this, that they did not

16 see the bodies, but that, out of anxiety for themselves,

17 has turned into wishful thinking and the firm assertion

18 they were not there?

19 MR ADAIR: I suspect with Neill, that's it. Of course, can

20 I say this also, sir? Very often, with the greatest

21 respect to Constable Neill, some people can't

22 distinguish between what they saw and what may have been

23 there. It may equally be, for that reason, that he

24 asserts the bodies were not on the ground, because in

25 his perception they were not on the ground, but unlike

1 perhaps some of us, he doesn't have the wherewithal to

2 say, "My perception is they were not on the ground".

3 I think, our submission is, sir, they were probably on

4 the ground at the time.

5 I see it is 3.15 pm. I don't know ...

6 THE CHAIRMAN: We will have a break. Fifteen minutes.

7 (3.15 pm)

8 (A short break)

9 (3.30 pm)

10 THE CHAIRMAN: Yes, Mr Adair?

11 MR ADAIR: Sir, I was dealing with the police and what did

12 they do when they got out of the Land Rover.

13 Now, Mr McGrory submitted there was no cohesion, no

14 coordination, it was ill-judged and that Cornett did not

15 help. It is our submission, sir, that the evidence does

16 not substantiate any of those allegations.

17 To suggest, first of all, that in the face of being

18 pulled out of a Land Rover and immediately confronted by

19 a hostile crowd who were engaged in fighting, that

20 thereafter there should have been some immediate,

21 directed cohesion of their actions is asking for

22 something which I suspect any policeman on the ground

23 that night would regard as perfection

24 THE CHAIRMAN: What you say is action was wanted now, not

25 action following a conference?

1 MR ADAIR: Exactly. Even taking that into account, what

2 they did do, in our submission, shows an element of

3 cohesion because of their training. Cornett did as she

4 should have done and got on to the radio, first of all,

5 as you know, initially asking for back-up, and then,

6 when she became aware of the bodies on the ground,

7 asking for an ambulance.

8 I rhetorically pose the question: what more does

9 anybody want her to do? I mean, is it suggested that we

10 don't want somebody in the Land Rover calling for

11 back-up? Is it suggested we don't want somebody in the

12 Land Rover on the radio calling for ambulances, making

13 call after call, after call? "Are they on their way?"

14 We have heard the transmission ourselves. To suggest

15 she was doing nothing and did not help is just

16 outrageous.

17 P40 went to the mouth of Woodhouse Street, he says,

18 to prevent other Catholics from joining in the affray.

19 It would appear that's backed up to a large extent by

20 what Mr McNeice says. Rhetorically, again I ask: is

21 that not a reasonable thing to do, to try to prevent

22 others coming down?

23 Now let me say this. We all saw P40 and heard what

24 he had to say about various issues. You may have your

25 own thoughts about him. I represent him and I am not

1 going to say anything against him unless it is

2 absolutely necessary, but if it was necessary, I would

3 say it, but in relation to his actions that night, by

4 standing at the corner of Woodhouse Street, he was

5 performing a useful function. Whether he knew it or

6 not, but he was, in fact, performing a useful function.

7 I know he made comments such as, "I didn't want my

8 wife following behind a coffin."

9 THE CHAIRMAN: It was a job, you say, which had to be done,

10 even if it called for less courage than it called for

11 from the other two.

12 MR ADAIR: Exactly, sir. That's why you are sitting where

13 you are, sir, and that's why I am standing where I am.

14 That sums it up. I mean, we heard what we had to say

15 about his thoughts thereafter and so on. One can form

16 one's own view, but he performed a function.

17 We know that Atkinson, whatever else one might say

18 about him, and Neill went into the crowd in an attempt

19 to prevent any further attack on Robert Hamill and, of

20 course, this comes back to one of the initial matters

21 that are raised at the outset, this original -- one of

22 the original allegations was that, even when the police

23 did get out, they didn't try to prevent any further

24 attack on the unfortunate Mr Hamill.

25 I think it is worthwhile, sir, having regard to the

1 seriousness of that allegation just reflecting on what

2 Mr Prunty, one of the Catholics actually involved, was

3 able to tell this Inquiry. It is at Day 6,

4 21st January. It is at page 141. It starts at line 23.

5 It may be a different page. As you will probably be

6 aware, sir, the LiveNote from which I was working, the

7 page numbers are different than the website transcript.

8 If you go to page 142, line 23. If you stop there

9 at line 23. It is at page 142:

10 "Question: So can we take it then now that the

11 police were successful in getting the crowd away from

12 the assault on Robert Hamill?

13 "Now, do you understand that question? Can we now

14 take it, and can the Hamill family take it, most

15 importantly, that the police were successful in getting

16 the crowd away from the attack on Robert Hamill?

17 "Answer: After the attack had happened.

18 "Question: Can we take it that the police prevented

19 any further attack on Robert Hamill?

20 "Answer: Yes.

21 "Question: Can we take it -- and again, I want you

22 to listen to this question very carefully, Mr Prunty --

23 am I right in saying that during the attack on

24 Robert Hamill, the police came in and tried to break the

25 fight up, to save Robert Hamill?

1 "Do you understand the question?

2 "Answer: Yes.

3 "Question: What's your answer?

4 "Answer: No.

5 "Question: If you turn up the page [18062], please,

6 which is the notes of consultation, and if you would

7 highlight the paragraph, 'Saw Robert getting dragged to

8 the ground'.

9 "Now, before you start reading that, if you just

10 leave that to the side for a moment, do you remember

11 this consultation with the DPP?

12 "Answer: Vaguely.

13 "Question: Were you treated okay?

14 "Answer: Yes.

15 "Question: Were counsel okay with you and were the

16 police okay with you?

17 "Answer: Yes.

18 "Question: You were free to talk? You were not

19 under any pressure from anybody?

20 "Answer: No.

21 "Question: You told them the truth?

22 "Answer: Yes, to the best of -- yes, yes.

23 "Question: Did you tell them the truth?

24 "Answer: Yes, yes.

25 "Question: Now, if you look at that paragraph, it

1 starts off:

2 "'Saw Robert getting dragged to the ground'.

3 "Is that right? Is that true?

4 "Answer: Yes.

5 "Question: 'He was trying to protect himself

6 before he went down. D went to help. I watched what

7 happened. I saw 15 to 20 people around Robert. Could

8 see Robert -- not at first but when he was lying on the

9 ground. Anybody who was there, 15 to 20, were booting

10 at him.'

11 "Is all that true?

12 "Answer: Yes.

13 "Question: 'I didn't know any of them - not even to

14 see. D went to help Robert. Saw him getting hit with

15 a bottle - was thrown at him. D and Robert no more than

16 6 feet apart ".

17 "Is all that true?

18 "Answer: Yes, I think so, yes.

19 "Question: 'Some of the crowd were going over to D.

20 Police then came. Police got out of Land Rover when

21 Robert was on ground. Tried to get in to break it up.

22 No effect - wasn't enough of them'.

23 "So did the police, Mr Prunty, try to get into the

24 crowd to break up the attack on Robert Hamill? Isn't

25 that what you told the DPP?

1 "Answer: After -- Robert had been attacked. Robert

2 had been attacked.

3 "Question: I understand the attack had

4 started, Mr Prunty.

5 "Answer: Yes.

6 Question: Am I not right in saying that what you

7 were saying to the DPP was that, during the course of

8 this attack, the police came in and tried to break the

9 crowd up? Is that not what's there?

10 "Answer: Yes.

11 "Question: During the course of the attack. I am

12 not suggesting, Mr Prunty, that the police were there at

13 the start of the attack; in other words, on the street.

14 Do you understand me?

15 "Answer: Yes, yes.

16 "Question: It may be that we are in agreement on

17 this.

18 "Answer: Yes.

19 "Question: I am not suggesting as per one of your

20 answers -- I think your thoughts are that because of the

21 very fact that there were people coming down Thomas

22 Street and people on Market Street that the police

23 should have got out of the Land Rover before the attack.

24 "Answer: Yes.

25 "Question: That is what you said at one stage as

1 your criticism of the police. Isn't that right?

2 "Answer: Yes.

3 "Question: Now --

4 "The Chairman: Mr Adair, he has also said this in

5 answer to you about when the police were acting. He

6 said after the attack, which may carry a certain

7 suggestion implicit and you may want to grasp that.

8 "Mr Adair: Yes. Thank you, sir.

9 "By that you mean after the attack had started,

10 I presume?

11 "Answer: Yes.

12 "Question: So, so we are clear, and let's try to be

13 absolutely clear about this, and forgive me, Chairman.

14 It is quite important, so if I may just clarify with the

15 witness where exactly or what exactly you are saying.

16 You are saying that when the attack started -- do

17 you understand what I mean by started?

18 "Answer: Yes.

19 "Question: When the crowd attacked Robert Hamill

20 first of all --

21 "Answer: Yes.

22 "Question: -- the police were still in the

23 Land Rover?

24 "Answer: Yes.

25 "Question: Do you agree with me -- I think you

1 have agreed with me, and you have read your notes of

2 consultation -- that the police came over during the

3 attack and tried to break the crowd up?

4 "Answer: Yes.

5 "Question: Tried to save the life of Robert Hamill?

6 "Answer: Yes.

7 "Question: What else would they be doing?

8 "Answer: Yes

9 "Question. They weren't able to do it because, as

10 you say in your notes of consultation, there wasn't

11 enough of them. Isn't that right?"

12 So again, just to go back to this suggestion, first

13 of all, the original suggestion that was made prior to

14 the Inquiry being set up that the police did nothing to

15 prevent any further attack on Robert Hamill, Mr Prunty

16 makes it absolutely clear that's not right.

17 Secondly, in relation to the suggestion that there

18 was no cohesion as between the police officers, well, if

19 it is right that Cornett was on the radio, that P40 was

20 at the junction of Woodhouse Street and that Neill and

21 Atkinson were in the crowd trying to prevent a further

22 attack on Mr Hamill, it is difficult to see how any

23 allegation can be made of lack of cohesion.

24 Again, sir, we would go so far as to say that so far

25 as those for whom I appear, and in particular

1 Constable Neill and Constable Cornett, they are

2 deserving of praise for their actions in the face of

3 a violent mob of hooligans.

4 Whatever one finds about whether or not there was

5 vigilance initially, they are worthy of praise for their

6 actions in the face of this crowd, contrary to the

7 submissions that have been made.

8 I mention briefly, and I am not going to be

9 mentioning too much of the BIW submissions, but

10 I mention briefly -- I don't know whether page 301 of

11 the consolidated submissions can be brought up.

12 If you highlight the first paragraph, please, you

13 will see starting seven or eight lines down where BIW

14 say in their submissions:

15 "Furthermore, Reserve Constable Cornett claims only

16 to have seen Robert Hamill and D after she radioed for

17 back-up. Constables Atkinson and Neill both initially

18 said that they saw the two men lying on the ground after

19 getting out of the Land Rover, but both resiled from

20 this in their oral evidence."

21 I don't know where that comes from. That's all

22 I will say about it.

23 The other matter, in the sense of what we now know

24 to be the back-up police did was to administer first aid

25 to Robert Hamill. It would appear that at least I think

1 it was Reserve Constable Silcock or Constable Silcock --

2 I can't remember which -- and probably one other

3 administered first aid to Robert Hamill.

4 I remind you again, of course, that this was one of

5 the original allegations that were made concerning the

6 actions of the police, that they made no attempt to

7 administer first aid. No-one in this Inquiry has

8 attempted to suggest other than they administered first

9 aid to Robert Hamill. So again, sir, the record we

10 submit should be put straight in respect of that.

11 It is regrettable that if you just go to page 6 of

12 the consolidated submissions, please, if you would

13 highlight the submission by British Irish Watch, please,

14 that instead of praising the police for having given

15 first aid, contrary to all the allegations that have

16 been made throughout the years, that the BIW say:

17 "It is alarming to hear that Robert Hamill was

18 placed front down with his head turned to one side by

19 a police officer. This is not the usual recovery

20 position and is a position which might lead to

21 positional asphyxia. However, Professor Vanezis is of

22 the opinion that the position in which Robert Hamill was

23 placed did not make any difference to the fatal outcome

24 of the attack and did not lead to the hypoxia found in

25 his brain."

1 Thank you. I want to briefly, sir, touch upon

2 relating to the actions of the police when they got out

3 of the Land Rover and what they saw to some, and only

4 some, of the allegations made on behalf of Hobson.

5 As I say, there were more conspiracies alleged

6 yesterday in the course of Mr Green's submission than

7 have been alleged in 12 years against the police. One

8 has to ask whether there is a possible reason why these

9 conspiracies are being alleged, which include, of

10 course, the serious allegation against Constable Neill

11 that (a) he perjured himself, conspired to put Hobson in

12 jail, let's put it modestly, for a considerable period

13 of time without any apparent real motivation, lied about

14 what he was able to see. If Hobson is right, Neill and

15 others have conspired to make up this story. Bradley

16 and Cooke have conspired to ensure that Hobson is put in

17 the frame. Police in general have conspired to put

18 Hobson in the frame. The conspiracies are endless, if

19 Hobson is right.

20 Mr Hobson is, must be, one of the most unlucky men

21 ever to have gone into the centre of Portadown, because

22 not only has he been framed by Constable Neill, totally

23 coincidentally Tracey Clarke has named him as being

24 involved in the attack on Robert Hamill. Jameson has

25 named him as being involved in the attack on

1 Robert Hamill. Jonathan Wright puts him in the frame as

2 being involved in the crowd involved in the attack on

3 Hamill. Constable Cooke puts him in the frame as being

4 involved in the attack on Robert Hamill.

5 All of these people must have conspired, either

6 collectively or individually, to name the unfortunate

7 Mr Hobson as one of those involved in the attack on

8 Mr Hamill. He must be one of the most unlucky men ever

9 to have crossed Thomas Street in Portadown.

10 The alternative, of course, is that he is not

11 an unlucky man. The alternative is he was one of the

12 crowd involved in the attack on Robert Hamill and all

13 those witnesses have been telling the truth.

14 Again, one rhetorically asks the question: why on

15 earth would Constable Neill make up what he says he saw

16 Hobson do? We know he did not give the name Hobson, but

17 confronted the person that he described as being Hobson.

18 Why on earth would Tracey Clarke do it? Why would

19 Timothy Jameson do it? Why would Jonathan Wright do it?

20 Well, no real explanation has been given for any of it.

21 The alternatives are stark. He's the unluckiest man

22 in the world, or he's the liar. We submit that, beyond

23 peradventure, Mr Hobson is the man that's lying.

24 A number of quotes I should finally say in relation

25 to this were given to you about what

1 Lord Justice McCollum had said in the Hobson trial in

2 relation to some of Constable Neill's evidence.

3 A quote that was not given was where he said at

4 page 8742:

5 "I am satisfied that Constable Neill made a reliable

6 identification."

7 I come now to the issue of debriefing. It is one of

8 the areas that is perhaps a bit -- it is a difficult

9 area. As you know, I appear for P89, who is the

10 sergeant. I don't appear for Inspector McCrum. Now,

11 obviously, I have a duty to all my clients, but equally,

12 if I think that it flies in the face of common sense to

13 suggest something, then I am not going to suggest that,

14 rightly or wrongly. Maybe I am wrongful. Maybe I am

15 not doing the right thing.

16 It seems to us that it was the system that failed in

17 respect of debriefing. The Panel will remember the

18 early days of this Tribunal of trying to find out what

19 individual police officers' understanding of the word

20 "debriefing" was. Some said they had never heard of it.

21 Some said they had never had one. I think P89 said he

22 had had one debriefing in his life concerning

23 an incident where a plastic baton round had been fired

24 and he was debriefed afterwards to see if anybody knew

25 who had fired the baton round. Others had

1 an understanding that it might involve filling in the

2 occurrence book or filling out a baton report form.

3 Nobody seemed to have a grasp of what debriefing

4 actually is meant to encompass.

5 Now, I am going to say something which is perhaps --

6 I will probably not be engaged by my instructing

7 solicitors again, but there it is. It seems to us,

8 rightly or wrongly, that in a situation where two men

9 have been taken away in ambulances after an incident and

10 are obviously injured, that it would not have been

11 unreasonable for those in charge to have made enquiries

12 as to whether anybody saw who did this, whoever that

13 should have been.

14 Certainly, so far as P89 is concerned, I think even

15 Mr Underwood at one stage passed the comment, words to

16 the effect that he was more a man of the streets,

17 a policeman of the streets, as opposed to a person who

18 would organise a gathering and organise a proper

19 debrief, but the Panel may think -- and I wouldn't -- it

20 is our submission, I should say, that we would not take

21 issue with this -- that it would not have been

22 an unreasonable thing for some enquiries to be made as

23 to, "Did anybody see anybody actually strike a blow?"

24 Now it seems to us, we respectfully say, that it was

25 the system that failed as opposed to Inspector McCrum or

1 P89. The manual is there. We have all seen and read

2 the manual about debriefing, but nobody seems to have

3 paid the slightest bit of attention to what was in the

4 manual, if the evidence of all the police officers is

5 right. So it seems to us -- I am assuming the system is

6 quite different now, sir. I am not sure whether we

7 heard direct evidence about that, but I would like to

8 think it was different now than it was in those days.

9 So I am not laying the blame actually at the door of

10 Inspector McCrum or P89, but I am respectfully

11 suggesting to you that the system failed. There should

12 have been a clearer direction that in circumstances --

13 maybe examples could be given in a document. I know

14 that in the policing world the examples would be endless

15 and no one situation is ever going to fit the box, but

16 it seems reasonable that there might have been some

17 direction to say, "Look, if people have been taken to

18 hospital as a result of others attacking them, try to

19 make some enquiry there and then, before they go home,

20 as to whether anybody saw who did it". You may, sir,

21 consider that as part of your remit, because I know you

22 have recommendations to make as well.

23 That seems a reasonable proposition. In this case

24 probably there are two potential consequences that might

25 have followed. I am not saying they would have, but

1 they might have followed. It might have been that

2 Constable A , if she had been asked, "Can you add

3 anything here? What did you see?" would have been able

4 to relate there and then the fact she had taken a man

5 into the back of the Land Rover and later it had been

6 alleged he was one of the kickers. She already had his

7 name and address. So that might have been a potential

8 lead.

9 The other potential lead might have been in relation

10 to Hobson, because if Neill had been asked there and

11 then, "Did you see anybody doing anything?", given the

12 description of Hobson and then somebody else asked,

13 "Does anybody know this man with the goatee beard and

14 such and such", maybe Cooke would have said, "Yes, I do.

15 That's Marc Hobson."

16 So those seem to be two potential areas where

17 something might have come to fruition that night if

18 there had been a debriefing, and I am slow to use the

19 word in the sense of -- the sense I am using it is in at

20 least going round and trying to find out did anybody see

21 who did what.

22 Those two potential avenues I think I have to say

23 could potentially have been pursued. I don't think

24 anybody is suggesting that A deliberately didn't mention

25 the fact of the assertion being made by Prunty, "That's

1 one of the kickers", but probably, if she had been asked

2 the question that night, she would have volunteered it.

3 What we say is that is undoubtedly potentially

4 something that might have happened, but, as I say, our

5 submission is that the effect of the evidence is that

6 this cannot be laid at the door of individual police

7 officers, certainly not P89's. It seems to be more

8 a systemic failure than an individual failing, because

9 of the lack of the direction and briefing, the lack of

10 understanding and briefing.

11 I don't know, sir, what your experience is in

12 relation to briefings, but trying to find out what

13 people understood about briefings was like trying to

14 draw blood out of a stone sometimes with what people's

15 understanding was. Even that in itself is not

16 a satisfactory position.

17 THE CHAIRMAN: Are you saying this: although the upper

18 echelons of command knew what debriefing should achieve,

19 the apparent ignorance of the rank and file about what

20 was involved suggested that the lower level of command,

21 which would command them, did not appreciate what was

22 required?

23 MR ADAIR: Absolutely. Of course, it goes further than

24 that. When the upper echelons come in, some of whom

25 I appear for, I have to say, they say "Here is what

1 I would have expected to have been done", but it clearly

2 never or rarely was. It is all very well to say, "Here

3 is what should have been done", but where is the

4 direction being given to these people?

5 SIR JOHN EVANS: Is it possible, though, there is more we

6 should attach to the fact that there was a lack of

7 understanding about what we were talking about?

8 I do understand the senior officers of course would

9 be aware of what was in the manual and they would know

10 exactly what a debrief is. It seemed to me, listening

11 to the officers giving evidence, that they certainly did

12 understand what a formal debrief was after a big

13 incident, but, you know, it is absolutely common for

14 a retiring shift of officers to be seen by their

15 sergeant to be asked, "Anything to report?". That's the

16 debrief. That's the debrief.

17 MR ADAIR: It seems common sense, if I might say so, but it

18 doesn't seem -- that's why I am not saying I am laying

19 the blame of, in fact, even McCrum, because clearly he

20 did not even appreciate what should have been done.

21 Certainly P89, I would respectfully say, can't be

22 criticised for it. I don't think the man understood

23 what a debrief was.

24 So it is probably a systemic failure just in

25 communication of what exactly is required. It is

1 a matter for you, of course, but that seems, in our

2 submission, to be part of the problem here in relation

3 to debriefing.

4 Of course, then the follow-on from that is that, if

5 that had happened, who knows what further might have

6 happened? We have been hearing about the golden hours

7 and so on. So it is a very unfortunate fact that there

8 was not a debrief

9 THE CHAIRMAN: The significance of the failure was the more

10 important because of the Drumcree factor. The police

11 were not going to get much help from the population.

12 MR ADAIR: That's right. I am not sure that entered -- yes.

13 I don't think that would have been part of their

14 mindset, but that's factually right.

15 THE CHAIRMAN: That's really what Mr Armstrong has told us,

16 isn't it?

17 SIR JOHN EVANS: The Drumcree factor is actually more about

18 failure to attract witnesses.


20 SIR JOHN EVANS: We are talking here about officers who had

21 been out on the streets, who may have been expected to

22 see something.

23 THE CHAIRMAN: What I had in mind was, if you couldn't get

24 the information from debriefing, you weren't going to be

25 very successful in getting your witnesses. Hence the

1 importance of debriefing and the scientific evidence

2 that might reveal.

3 MR ADAIR: Absolutely, sir. We all know that the

4 Protestants were probably nearly as hostile in 1997 to

5 the police as the Catholics were and were as unlikely to

6 give assistance as the Catholics. So your point is

7 absolutely valid, sir.

8 All the more important, "What did you see?" There

9 it is. Rightly or wrongly, that may not be your view,

10 but that's the view that we think is a rational view to

11 take of debriefing.

12 I say for the last time I do not lay any blame at

13 the door of either P89 or McCrum for it. The blame lies

14 elsewhere for a lack of cohesive knowledge of what they

15 are supposed to do in that type of situation.

16 I can understand, I must say, where regular Saturday

17 night punch-ups are occurring, that the senior officer

18 will not regard it as necessary to go round his officers

19 before they go off duty and see what they can find out,

20 but I have to say in this case, where two people have

21 been taken off to hospital, and on some enquiry it would

22 have been known that there was a rasping for breath, for

23 example, and so on, at least some enquiry should have

24 been made as to who saw what

25 THE CHAIRMAN: Didn't the sheer magnitude of the

1 involvement, the number of people, also put it in

2 a special category above the ordinary Saturday night

3 punch-up?

4 MR ADAIR: Probably, although that type of incident would

5 have been, I suspect, a fairly regular -- certainly

6 would have been within the experience of most of the

7 police in this jurisdiction in 1997, not in Portadown,

8 I accept entirely.

9 THE CHAIRMAN: A number of the officers we have heard said

10 this went quite beyond the ordinary.

11 MR ADAIR: Well, yes. I wouldn't take issue with it

12 strongly, sir. That's another issue why some further

13 enquiries should have been made.

14 It didn't happen. I don't see the consequences

15 other than the two. Obviously, one can speculate as to

16 what might or might not have happened if Lunt had been

17 arrested immediately and interviewed. He might have

18 said something. I don't know. Those seem to be two

19 possible courses that could have been taken that night

20 if some enquiry had been made.

21 THE CHAIRMAN: Of course, you don't necessarily have to make

22 arrests in order to make a search.

23 MR ADAIR: No. That's right.

24 Now, there is a criticism in Mr McGrory's written

25 submission of P89 at the hospital which I will just deal

1 with briefly. In our submission, it is criticism for

2 the sake of it. The suggestion seems to be that he

3 should have found out more at the hospital than he did.

4 Well, thankfully I have not recently been to the A&E

5 at 3 o'clock in the morning, but I have seen and heard

6 about A&E at 3 o'clock in the morning when the drunks

7 are in getting fixed up. The thought that P89 should

8 insist that one of the doctors, if he could find one,

9 should come out and inform the police as to the nature

10 of the injuries and the extent of the injuries that were

11 suffered by Mr Hamill is fanciful. I just leave it at

12 that.

13 THE CHAIRMAN: P89 said, didn't he, you would not get

14 a doctor to talk to you?

15 MR ADAIR: He did. He made enquiries of the nurses, but

16 could not get any information from the nurses. The

17 thought of getting a doctor -- to go with an injury and

18 try to get a doctor, never mind going to make an enquiry

19 and trying to get a doctor ...

20 Anyway, I suspect Mr McGrory was just in critical

21 mood at the time.

22 It has to be said also, of course, in relation to

23 that, that it is to their credit that they did make

24 efforts to ascertain the extent of the injuries.

25 Whether or not it was McCrum that directed P89 to go, or

1 whether he went of his own volition, is really neither

2 here nor there, subject to your views, sir, but at least

3 the police did the right thing and went to ascertain the

4 extent of the injuries, which is the best they could do

5 at that stage.

6 Very often in this type of scenario, where, if one

7 says, for example, that Inspector McCrum or P89 or

8 somebody in authority should have ascertained the nature

9 and extent of the injuries at the scene, then it would

10 follow from that that if they had been made aware that

11 there were potentially serious injuries, I think I am on

12 safe ground in saying the probability is they would have

13 sealed off the area there and then.

14 It is because they didn't find out the nature and

15 extent of the injuries initially that the scene was not

16 cordoned off.

17 Now, this comes back to, in essence, the point I was

18 making about making some enquiries, the debriefing. The

19 lack of that has -- obviously there are consequences

20 that flow from it. One is the Lunt, the Hobson point.

21 The second is that the area is not sealed off. So it

22 seems to me -- we submit that the failure, if that's the

23 right word, to cordon the scene off directly flows from

24 the same problem in relation to debriefing -- that any

25 debriefing would have included, not just, "Did anybody

1 see anything happen here?" but, "How seriously are those

2 guys injured?" and Silcock would have then said, "He was

3 rasping for breath".

4 I suspect, we submit, that thereafter McCrum or P89

5 would have sealed the area off. So the lack of sealing

6 off, we submit, probably stems from the same problem in

7 relation to debriefing.

8 We submit that it is not so clear what the

9 consequences of that are. While it is clear -- well,

10 clear-ish what the consequences of trying to find out

11 names are, because of the chaotic scene that had ensued,

12 and because of the nature of the problem with 30, 40,

13 whatever number of people there were engaged in fighting

14 on the streets, we submit that it is unlikely that

15 forensic evidence of any value would have been

16 discovered. It may have been. I can't say that it

17 wouldn't have been, but it is unlikely.

18 In fact, it is unlikely that the scene altered at

19 all between the time that the Protestants were pushed

20 back up towards the church and the time that

21 Detective Constable Keys came down and eventually did

22 seal the scene off.

23 I mean, the reality of the Thomas Street area, that

24 junction that night, was there were no cars moving

25 through it, because the town centre is barriered off.

1 It is unlikely that anybody -- we know there was

2 a police car down there, which nobody seems to have been

3 able to find out who it was or who they were. They

4 still remain something of a mystery. We know that

5 around about 5 o'clock the bin men were told not to go

6 down and clear the area.

7 So it seems probable that nothing changed in any

8 event, but even if it had changed, it seems unlikely

9 that there would have been anything of forensic value.

10 So, in our submission, the consequences of any

11 failure that there may have been in respect of cordoning

12 off are hard to see. There is a possibility, but it is

13 hard to see realistically what was lost.

14 I turn then to the later stages of -- well, I should

15 deal with this issue. That's the 4 o'clock information

16 that comes through after the phone call to the hospital.

17 Thereafter, things change. Mr O'Connor has dealt

18 with Inspector McCrum and what he did after 4 o'clock

19 and after he became aware of that information.

20 Now, we know that the first detective to get

21 involved was Detective Constable Keys. I am not going

22 to spend much time dealing with Detective

23 Constable Keys, because, in our submission, he was a man

24 of integrity. He was a dedicated detective. He did

25 everything he humanly could to pursue the investigation

1 in relation to this crime.

2 It is hard to see, sir, we submit with respect, how

3 he could be criticised.

4 I am not going to go through the various actions

5 that he took, such as telling the officers -- starting

6 with recalling the officers, getting them to make their

7 statements, put the detail in and so on. In our

8 submission, he came across as a dedicated, professional

9 man who did everything he could to pursue this

10 investigation.

11 We say the same about P39. While she may not have

12 had the experience -- as we have seen from her training

13 record, she had extremely limited experience -- and

14 while I suppose one might question as to whether or not

15 she was an appropriate person to be in charge at that

16 stage of an investigation because of her limited

17 investigative experience, we submit that she put her

18 heart and soul into this investigation.

19 You saw her and heard her. We submit that -- well,

20 our submission is that there can't have been anybody in

21 this Inquiry who was otherwise -- who thought other than

22 she was a lady who pursued this with, I think, her heart

23 and soul is the best way I can put it.

24 She decided on a strategy which you may agree or

25 disagree with, and her strategy, as you know, was to try

1 to get witnesses from the Catholic community to come

2 forward to approach priests, to approach the local

3 community, to get the evidence gathered in that way

4 rather than carry out immediate arrests, which would

5 have been on fairly flimsy evidence. There was some

6 evidence, because we know she ultimately did direct

7 arrests and nothing had changed. So there was some

8 evidence.

9 Now you may agree or disagree with the strategy, but

10 in our submission, there was nothing in the strategy

11 that was either intended to do anything other than to

12 pursue these people who had carried out the crime. That

13 was her purpose. That was her motivation.

14 Our respectful submission is that that's the way she

15 clearly came across.

16 Initially, there were very substantial criticisms

17 made by Mr Murray against P39, but you will recall when

18 he was asked ultimately about her actions in

19 cross-examination, I think by myself and maybe by

20 others, he gave her, in fact, a glowing report in

21 relation to a substantial number of the actions that she

22 had carried out. I think he still disagreed at the end

23 of it all with her strategy and would have preferred

24 an immediate arrest strategy rather than trying to get

25 the witness strategy, but again agreed that's a judgment

1 call. She acted in good faith.

2 THE CHAIRMAN: Is it a fair summary of his assessment that,

3 while she tried hard, she, from lack of experience, did

4 not really have a feel for the job she had to do?

5 MR ADAIR: I am not sure it went as far as that, sir.

6 I think it was more just he disagreed with the strategy.

7 Well, "didn't have a feel"? That's one way of reading,

8 I suppose, what he was saying. He certainly did not

9 doubt her bona fides --

10 THE CHAIRMAN: Oh, no.

11 MR ADAIR: -- and the effort she put in. There is no doubt

12 about the effort that was put in. There is no doubt

13 about her bona fides. There is no doubt she was trying

14 to pursue the perpetrators. The question then arises:

15 was her strategy effective and did she have a feel for

16 the correct strategy? That's a matter -- that's

17 a judgment call, sir.

18 I should mention briefly, of course, in respect of

19 Detective Constable Keys the CCTV issue, because, again,

20 initially it had been, perhaps understandably, thought

21 by the Hamill family that there might have been some

22 CCTV coverage of the Land Rover. You will remember

23 initially, sir, when we were looking at the photographs

24 concerning the Alliance & Leicester that we were all

25 looking at these "cameras".

1 THE CHAIRMAN: Downlighters.

2 MR ADAIR: Yes, which turned out to be lights. First of

3 all, there are no cameras outside. It seems to us, we

4 respectfully submit, that there probably was

5 a misunderstanding between Diane Hamill and Mr Irwin as

6 to what was contained within the CCTV cameras. It seems

7 strange to us that -- we have no reason to believe

8 Diane Hamill would make this up. Why would she? She

9 has absolutely no reason to make it up.

10 On the other hand, why on earth, if Mr Keys had

11 actually seen anything, would he not grab it and present

12 it, because you have seen and heard him, and that's just

13 the sort of a man he is.

14 So it seems to us that this arises out of

15 a misunderstanding in a conversation. That undoubtedly,

16 in our submission, there was no actual CCTV coverage

17 showing, either on handover or anything else.

18 I mention, unfortunately, in passing, the submission

19 by BIW. If you would turn up page 522 of the

20 consolidated submission. If you just highlight the

21 submissions there:

22 "We agree with Colin Murray's identification of the

23 major failings of the police investigation and with the

24 lists of actions that he considers should have been

25 taken by the relevant senior officers. We do not

1 believe that the situation in Northern Ireland was so

2 unique as to excuse those failings, which is not to say

3 that we do not recognise that there were special

4 circumstances pertaining in Northern Ireland at the

5 time, such as the poor relationship between the RUC and

6 the Catholic community, which probably accounted for

7 those failings. Despite the fact that terrorism was

8 still an issue in 1997, and that some of the suspects

9 had paramilitary connections, none of the police

10 accounts gave the slightest hint that they considered

11 that they were dealing with anything other than the

12 usual Saturday night public disorder to which Portadown

13 was regrettably accustomed. Colin Murray's lack of

14 knowledge of Northern Ireland and of terrorism is not,

15 therefore", and this is the bit, "relevant to the

16 assessment of the police investigation, which was

17 virtually non-existent."

18 How can they say that? I rhetorically ask: has

19 anybody been here listening to the evidence? Have they

20 seen P39? Have they seen and heard Mr Underwood when he

21 was dealing with this investigation and the manpower

22 hours that were put into it?

23 It you turn up page [75234], please, I am not going

24 to go through this, sir, but it is a letter which sets

25 out the number of statements taken by the police, which

1 is 504. It sets out the manpower hours, the number of

2 questionnaires, the number of people who refused to

3 speak to police, the number of HOLMES actions

4 and entries, which were 452, the number of police

5 officers involved until the appointment of K.

6 The total number of police officers involved in the

7 Hamill investigation up to the appointment of K was 462.

8 BIW put in their written submissions that there was

9 virtually non-existent investigation.

10 K's evidence in relation to this, sir, is on

11 8th September 2009, at page 1, which I am not going to

12 refer to, but if you wish to go through it in due

13 course, it is there.

14 Now, I want to say at this stage, sir, in relation

15 to -- because I will be coming shortly to deal with the

16 issue of Mr McBurney -- just so we are clear at the

17 outset, our submission in relation to the tipping-off

18 allegation is that it is overwhelmingly probable that

19 Atkinson tipped off Hanvey.

20 Others have dealt with -- Mr McGrory has dealt with

21 this in some detail and others have dealt with in some

22 detail the nature of the evidence which confirms that

23 proposition. I don't intend to go through it, sir, but

24 having reviewed it all, it is our submission that the

25 Panel will have little hesitation in coming to the view

1 that Atkinson tipped Hanvey off in relation to getting

2 rid of his clothes.

3 Consequently, we also say it is overwhelmingly

4 probable that Tracey Clarke's statement is true, because

5 one follows on naturally from the other.

6 What that means is, of course, that there was

7 a corrupt policeman on the streets of Portadown on the

8 night of 27th April 1997. Of course, the tragedy of

9 that is that because that is, we say, undoubtedly so,

10 regrettably others even subconsciously get tainted by

11 the actions of this one corrupt police officer.

12 In particular, it is very easy to increase one's

13 suspicions, for example, about the other Land Rover crew

14 members because of the actions of one rogue officer.

15 We submit that the Panel -- and I know you will,

16 sir -- but we submit all of you should be very careful,

17 as I know you will, not to let the paint spill over from

18 Atkinson on to the others.

19 I mention in passing at this stage also, of course,

20 that allegations have been made, by what we are calling

21 the Protestants, of outrageous behaviour by a number of

22 other officers, for example, officers who have -- on

23 behalf the Hobson. The suggestion is, when they were

24 taking Mr Jameson's statement and they had the names,

25 what they did was, "We will take those names and put

1 them into Tracey Clarke's statement". If that's right,

2 that's conspiring to frame people for murder.

3 Honeyford: allegations made that he put people under

4 pressure to make witness statements.

5 Allegations have come fast and furious from the

6 Protestants. The reasons will be immediately apparent

7 to all of us as to why, because they all have something

8 to explain. What is the easiest way to explain

9 something which is a difficulty? Get the policeman in

10 the frame.

11 The thought occurred to me: who would be a policeman

12 in Northern Ireland? On the one hand, the Catholics are

13 saying, "You did nothing to investigate this crime at

14 all". On the other hand, the Prods are saying, "Not

15 only did you investigate this crime, but you tried to

16 frame us for it". Sir, you wouldn't find it in a novel.

17 Now, I come to, then, McBurney and Irwin.

18 I don't know whether --

19 THE CHAIRMAN: Are you ready to continue for another

20 fifteen minutes? We will go on for about

21 fifteen minutes. You find a convenient moment to break.

22 MR ADAIR: Very well, sir. I don't know what time you are

23 silting to. I was going to break and then come back and

24 continue. I don't know if you intend sitting on.

25 THE CHAIRMAN: We don't want to sit beyond 4.45 pm.

1 MR ADAIR: Very well.

2 In relation to Mr McBurney, I suppose the stark

3 question that the Panel may have to consider, amongst

4 others, is: were his actions designed to protect

5 Atkinson or were they part of a long-term strategy?

6 That's putting it in a nutshell.

7 Now, if we look at what we factually know as to what

8 McBurney did -- and before I go on to say factually what

9 he did, in our submission we have always also got to

10 remember the nature and type of man that we are dealing

11 with from what we have heard in the evidence. This was

12 not your average Constable Plod on the street. This was

13 not your average detective on the street. This was

14 a man who, you have heard from witness after witness,

15 not only was an exceptional detective, but very much had

16 his own way of doing things.

17 You may think that in relation to the recording of

18 information, he certainly did not see that as part of

19 his -- as a necessary part of his function as

20 an investigating detective, rightly or wrongly.

21 Contrasting him actually with K, who, it would

22 appear, would take a note of having a cup of coffee --

23 k would have a note of it -- McBurney apparently noted

24 virtually nothing.

25 Now, that should not be regarded, in our submission,

1 as something sinister. That's just the way the man was.

2 That's the way he worked. He was, I suppose, to put it

3 in simple terms, an old-fashioned detective.

4 Nowadays, I have absolutely no doubt that there is

5 not a detective in the force that doesn't fill in his

6 notebook properly, that doesn't record every decision he

7 makes, that doesn't record why he does something or does

8 not do something, so that if anybody, either in court or

9 otherwise, pursues him about it, there it is in black

10 and white.

11 All I am submitting is, sir, that's not the man you

12 are dealing with. If you are judging him on those

13 standards, then he is condemned immediately. Judge him,

14 in our submission, for the man he was and view his

15 actions having regard to the man he was.

16 Now, what we do know in considering whether there

17 was something that McBurney was doing to protect

18 Atkinson as opposed to part of a long-term strategy is

19 as follows. We know that he was given this information

20 about the potential of Tracey Clarke on 8th May. We

21 know that he directed action be taken to get the

22 information. He arranged for a statement to be taken.

23 We know he applies for telephone records to try to

24 confirm the information that Tracey Clarke had given.

25 On 10th May, we know that he phoned the chief

1 constable twice to update him on the progress of the

2 investigation. I agree with Mr McGrory, contrary to

3 what was said this morning, that it is inconceivable, we

4 submit, that a detective chief superintendent, having

5 been made aware of an allegation concerning a corrupt

6 police officer tipping off a murder suspect, would not

7 have informed the chief constable.

8 I am not suggesting that Sir Ronnie Flanagan is

9 lying about this. He may not recall it, because I have

10 no doubt he was dealing with hundreds of phone calls

11 every day and hundreds of documents, but we submit it is

12 inconceivable -- I just can't -- well, we can't conceive

13 of any possible reason why he wouldn't mention to his

14 chief constable twice on the phone that, "Something is

15 about to go up in the air here, chief. There's

16 a policeman apparently who has tipped off, or allegedly

17 has tipped off, a suspect".

18 If we are right about that, then McBurney not only

19 has directed all the steps at that stage that he could

20 have, but he has informed his chief constable at the

21 earliest possible opportunity of the allegations made

22 against Atkinson.

23 We know then that on 12th May he informed just about

24 everybody else that could be informed of the allegations

25 that had been made concerning Reserve

1 Constable Atkinson. They include Complaints and

2 Discipline, the ICPC and the assistant chief constable.

3 Now it is our submission, sir, that he just could

4 not have made it more internally public, if that phrase

5 is appropriate, than he did at that time. There was

6 no-one else, we submit, that either could or should have

7 been told that wasn't told. In our submission, that

8 flies in the face of the suggestion that this was

9 a police officer prepared to or engaged in protecting

10 Atkinson.

11 Now, I understand that Mr McGrory's submissions lend

12 the possibility that that attitude perhaps was not there

13 at the beginning but was an attitude that changed, for

14 some reason, at a later stage. Of course, with respect

15 to Mr McGrory, he has to say that, because everything

16 that is done on 10th, 11th, 12th, 19th May at the

17 further meeting, tends to -- well, confirms beyond

18 peradventure that it was not something he was trying to

19 sweep under the carpet. He was not trying to protect

20 him. Everything suggests this was a man telling

21 everybody who had the right to know, not the actions of

22 a man protecting anybody.

23 So the suggestion has to be made that at some stage

24 his attitude, for some reason, changes from pursuing

25 Atkinson to protecting Atkinson.

1 There are four investigative stages that Mr McGrory

2 has referred to, which he says demonstrates the state of

3 mind, or tends to demonstrate the state of mind, of

4 Mr McBurney in protecting Atkinson. I come to the

5 motivation at the end of my submissions, but this is why

6 he says the Panel should find that Atkinson was being

7 protected.

8 The first is the stage when the telephone records

9 had been received from the telephone company on, I think

10 it is 16th May. Now for the purposes -- the suggestion

11 is by Mr McGrory that -- the words he used were "the

12 best investigative strategy" would have been to arrest

13 Atkinson there and then, put the telephone records to

14 him, and that would have been -- that's the course of

15 action that should have been followed.

16 Well, if we leave aside for a second the issue in

17 relation to telephone records and whether they could be

18 used or should have been used by an investigating

19 officer during the course of an interview, you are well

20 aware of the issues concerning servers and so forth, but

21 leave that aside for a second. Just for the purposes of

22 this argument, say, these records could be put to

23 Atkinson. Let's see what this "best investigative

24 strategy" would have produced in reality.

25 Constable Atkinson is arrested. The first thing he

1 asks for is a solicitor. We can be 100% sure of that.

2 The solicitor will be given pre-interview disclosure,

3 which they are entitled to so that they are aware of the

4 nature of the evidence which is about to be put to their

5 client. That pre-interview disclosure -- I am

6 paraphrasing at this stage -- would be, "Well, we have

7 a witness who says she was told that somebody else had

8 been phoned by your client". Now, I am sure the

9 solicitor by this stage will have gone, "What?"

10 "We have a witness who says they were told that they

11 are able to say that a person had been phoned by your

12 client and tipped off and we also have the fact of

13 a phone record".

14 No doubt Mr Atkinson gets his advice from the

15 solicitor and they go into the interview

16 THE CHAIRMAN: Do you have to go as far as that? Is it

17 enough to say, "We have intelligence of this and we have

18 phone records"?

19 MR ADAIR: I think that would probably suffice for

20 pre-interview disclosure. You certainly would not have

21 to give the name or anything like that. I accept that

22 entirely.


24 MR ADAIR: I suppose, yes, one could say, "We have

25 intelligence that your client phoned a murder suspect".

1 That would probably suffice for pre-interview

2 disclosure. Mr McGrory will know more about this being,

3 in a previous life, a solicitor, but I am assuming that

4 would be right.

5 So there we have it. The solicitor advice tells

6 Mr Atkinson what the nature of the questions would have

7 been about. Then we go to the interview. The police

8 say, "Right, Mr Atkinson, did you make a phone call to

9 a suspect and tip him off to get rid of his clothes so

10 he wouldn't be convicted of a murder?"

11 Now, are we to suppose that Mr Atkinson would have

12 thrown up his hands in horror and said, "It is a fair

13 cop, Gov, it was me". Well, pigs will fly.

14 If anybody is seriously suggesting that Atkinson --

15 we can now look back in hindsight, of course -- a man we

16 have seen, would have said "Yes, that was me, and here

17 I go down for fifteen years on the basis of the fact you

18 have -- the fact of a phone call, not the contents of

19 it, the fact of a phone call being made".

20 It just seems fanciful to me -- we submit it is

21 fanciful in the extreme to think that Atkinson would

22 have thrown up his hands, because the case was going

23 nowhere unless Atkinson admits it, absolutely nowhere.

24 You were never getting anybody for the phone call unless

25 they admitted the contents of the phone call.

1 The only way you were ever convicting either

2 Atkinson or Hanvey for conspiracy was if Atkinson

3 admitted what he said or if Hanvey had admitted what was

4 said and given evidence against Atkinson, which again is

5 fanciful.

6 So the reality of doing that, in our submission, is

7 you will have got nowhere. You will have saved yourself

8 an awful lot of grief in subsequent years, because you

9 would have been able to say, "Oh, but I arrested him

10 immediately and put this to him. I got nowhere. Sure,

11 I knew I was going to get nowhere."

12 Now, it may be that a policeman who decides to play

13 it by the book and doesn't care about the potential

14 outcome might do that to keep himself right and probably

15 today, I suspect, that's what they would do, but the

16 clever, intuitive detective can see that that's

17 a nonsense, can see it is going nowhere.

18 Then what happens, I rhetorically ask? Atkinson is

19 released. The case is going absolutely nowhere. Unless

20 Atkinson comes in and admits his part in this, this is

21 going absolutely nowhere. We say the chances of that

22 happening were one in a million

23 THE CHAIRMAN: Perhaps you may want to deal with what

24 Mr Woods suggests, that he could have been asked about

25 the telephone call and asked for an explanation and held

1 while it was investigated.

2 MR ADAIR: Asked about the phone call?

3 THE CHAIRMAN: Yes, and listens to Atkinson's explanation

4 and holds him in custody while the explanation is

5 investigated. That's what Mr Woods suggested as

6 a possibility.

7 MR ADAIR: Well, sir, the reality -- it's 100 to 1 that

8 Atkinson would say, "I have no idea what that phone call

9 is about". To think that he is going to say there and

10 then, when confronted with it, "Oh, I know what the

11 answer is for that. It was X was in the house or Y was

12 in the house". He is not going to say that at that

13 stage. He is going to say "I have no idea. I will have

14 to make enquiries. I know nothing about the call".

15 He is certainly a very foolish man unless he says

16 anything other than that, and he certainly was not

17 a foolish man.

18 I see it is 4.45 pm, sir.

19 THE CHAIRMAN: Very well. I will just finish with this

20 question. I suppose, if he had said that, it would have

21 been difficult to refuse bail to a police officer of

22 good character.

23 MR ADAIR: With respect, sir, there was no evidence to do

24 anything but to give him bail.

25 THE CHAIRMAN: Yes. We shall sit at 10 o'clock tomorrow

1 morning.

2 (4.45 pm)

3 (The hearing adjourned until 10 o'clock tomorrow morning)


5 --ooOoo--





















1 I N D E X


Closing submissions by MR ADAIR .................. 1
4 (continued)























Associated Evidence

Reference Title Description
Statement Vincent McNeice (00544)
Letter from P42 (01038)
HOLMES A114 (03449)
Judgment R v Hobson (08727)
Statement Thomas Mallon (09091)
Letter re. Robert Hamill - meeting with Chief Constable (39623)
Statement Colin Hull (60808)
Questions from Edwards & Co-PSNI response. 8 9 09 (75234)