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Transcript (Morning Session)

Hearing: 16th December 2009, day 76

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Held at:


20-24 York Street



on Wednesday, 16th December 2009

commencing at 10.00 am


Day 76




1 Wednesday, 16th December 2009

2 (10.00 am)

3 Closing submissions by MR ADAIR (cont.)

4 THE CHAIRMAN: Yes, Mr Adair.

5 MR ADAIR: Thank you, sir.

6 Panel, I dealt with the first stage that Mr McGrory

7 says that there was a lacking of the best investigative

8 strategy.

9 The second stage relates to the interview of

10 Atkinson on 9th September, which we all know about.

11 Comment, of course, has been made in relation to the

12 delay between the obtaining of the telephone records in

13 May and this first interview on 9th September.

14 I think it is worth, in our submission, remembering

15 that Detective Chief Superintendent McBurney was not

16 just dealing with one investigation; in other words, the

17 investigation into the murder of Robert Hamill, and the

18 tip-off allegation and the neglect allegation.

19 As you will have seen set out in some detail in the

20 submissions by the PSNI, he was also involved, during

21 this intervening period, in five other major murder

22 investigations, including, of course, one that was

23 touched upon yesterday, the murder of two RUC officers

24 in Lurgan in July.

25 So the reason I mention that, sir, is that it is

1 very easy, human nature being as it is, to simply focus

2 on this Inquiry, because that's what we are dealing with

3 day and daily, and to forget the reality of life back in

4 1997 for Mr McBurney, that he had a multitude of other

5 very serious crimes that he was investigating

6 THE CHAIRMAN: Can you remind us of what McBurney said in

7 his interview about pressure of other work?

8 MR ADAIR: I will shortly whenever my junior ascertains it,

9 sir. I will come back to that in due course.

10 Undoubtedly, he was involved in a substantial

11 number of other major investigations and, as I say, at

12 the risk of repeating myself, it is very easy to forget

13 that when we are within the closed confines of this

14 Inquiry and to wonder, "Why didn't he do this and why

15 didn't he do that?"

16 In relation to the strategy that was employed in

17 that interview criticism has been made of the fact that

18 essentially he asked Atkinson to produce his telephone

19 records, rather than put the records that he already had

20 received from the telephone company.

21 I have dealt with that to some extent, sir, in

22 relation to the evidence we have heard about the

23 telephone companies and their reluctance to let that

24 information be used other than for intelligence

25 purposes. I think I am right in saying that has been

1 touched upon by a number of witnesses during the course

2 of this Inquiry.

3 I think it is also right to say that he could have,

4 under the terms of the legislation, obtained that

5 evidence in hard form, but it seems to have been the

6 practice that what was done was "Use the information to

7 pursue your enquiries, but don't put the intelligence to

8 the suspect". That's what the protocol said. "This is

9 confidential information. Don't put this to a suspect."

10 What was being done --

11 THE CHAIRMAN: Whose protocol is this?

12 MR ADAIR: This is the PSNI protocol in relation to the use

13 of this intelligence information. Of course, in those

14 days, sir, there was very good reason for that, because

15 of the well-founded fears that service providers had for

16 their witnesses coming to court or of paramilitaries

17 becoming aware that they were giving the police this

18 information.

19 So what was done by Mr McBurney was an effort to

20 obtain evidence that he could produce in court, because

21 once Atkinson, as he was asked to, produced his

22 telephone records, that was capable of being made

23 an exhibit and produced in evidence in court.

24 So, in our submission, sir, this suggestion that, at

25 one stage, it was suggested this, in fact, it was

1 a tip-off by Mr McBurney to Atkinson does not have any

2 foundation whatever. This was a strategy employed by

3 Mr McBurney in accordance with the protocol and practice

4 that prevailed in 1997

5 THE CHAIRMAN: Again, Mr Adair, more work perhaps for

6 Mr O'Hare. It would be helpful if we can be told at

7 some stage what McBurney said about this in his

8 interview.

9 MR ADAIR: He said -- my recollection is he said he wanted

10 hard evidence in the form -- again, I hope I am not

11 wrongful in that, but my recollection is that that's

12 what he said, but I will have that checked as well, sir.

13 THE CHAIRMAN: Is it said there was a danger to providers'

14 own personnel, even if disclosure was made under a court

15 order?

16 MR ADAIR: Well, there was, sir. I mean, the reality is

17 there was. I don't want to start giving evidence, but

18 anybody who practised in this jurisdiction in those

19 years would have been well aware, not just of the

20 reluctance of witnesses such as Catholics and

21 Protestants in Portadown to come forward to give

22 evidence, but of anybody to come forward to be seen to

23 be giving evidence which potentially would convict

24 a paramilitary of a crime.

25 THE CHAIRMAN: Was any distinction being made between that

1 which was done voluntarily and that which was being done

2 under an order of the court?

3 MR ADAIR: I am not sure whether the paramilitaries were

4 subtle enough to recognise the difference, to be

5 absolutely frank, sir. I think their venom against

6 people who gave evidence was not simply restricted -- or

7 didn't temper by the fact that they were aware that they

8 were under a court order to give it, to be absolutely

9 honest with you, sir. I mean, I think they just caused

10 such fear in any witness who was giving evidence, and

11 the fact that they are under a court order, that

12 subtlety, I don't think, sir, was really something that

13 was present in their minds.

14 REV. BARONESS KATHLEEN RICHARDSON: I thought we were told

15 at one point that there was a way of getting round it by

16 inviting people from over the water to give the evidence

17 for them. Am I correct?

18 MR ADAIR: Yes. I think very often people were brought in

19 from across the water to give that evidence. Again, if

20 I might say so, extremely reluctantly did they come.

21 They came. There is absolutely no doubt about that.

22 They came, but it was extremely reluctantly.

23 What it boils down to is, if it could be done any

24 other way, such as the strategy engaged by McBurney,

25 then that was much preferable. I am not saying, sir,

1 that it was impossible or that it didn't happen, but if

2 there was a better, safer, more preferable way of doing

3 it, it was exactly the way that Mr McBurney did it

4 THE CHAIRMAN: Can you help me about the practice of the

5 courts in Ireland? In England, an order, if there are

6 proper grounds for it, could be made and the case would

7 be listed before a circuit judge's list at the beginning

8 of the day; in other words, within 24 hours of the

9 decision we will apply, the order could be had. Was

10 there that same urgency or speed in this country -- in

11 the province, rather?

12 MR ADAIR: I don't think so. I have to say, in those days,

13 sir, I was not actually engaged in much prosecution work

14 myself, to be frank about it. So I am not actually

15 aware of the exact mechanisms.

16 THE CHAIRMAN: It may be Mr Wolfe will be able to help us

17 about that.

18 MR ADAIR: It may be. It certainly was obtainable. If one

19 decided to go down the route of getting a court order,

20 an application could be made, and whether it was within

21 a day or two, or whether it was within a week or two or

22 a month --

23 THE CHAIRMAN: In England, it was a priority. You said you

24 wanted to make the application the previous night and

25 you made it the next day, or, if it was in the morning

1 that you made the decision, you would still get your

2 order within the day if you made the grounds out for it.

3 MR ADAIR: Well, sir, it may well be that the same applied

4 here. I frankly can't answer the question.

5 THE CHAIRMAN: As I said, Mr Wolfe may be able to help us

6 about that.

7 REV. BARONESS KATHLEEN RICHARDSON: The original records did

8 not take long to find, did they, once P39 asked for

9 them?

10 MR ADAIR: No. What we say, sir, is that that was one route

11 that could have been followed. Whether it would have

12 been rapidly obtained or whether it would have taken

13 a week, a day or a month, I can't say, but it was one

14 route, but our submission is that the preferable route,

15 and the practice was, in accordance with the protocol,

16 to go down the route that Mr McBurney, in fact, went

17 down.

18 Now, another criticism ancillary to this is arising

19 out of that, that, once again, the records were not put

20 to Atkinson during the course of the September

21 interview. I simply repeat what I said about the

22 potential of interviewing him back in May, that the

23 probability, the very strong probability, is that

24 Atkinson would simply have said, "Well, I know nothing

25 about that. I will make enquiries and I will come back

1 and tell you."

2 Again, we say, to suggest that Mr Atkinson would

3 have simply put his hands up and said, "Oh, I see you

4 have a record of a call that was made from my house to

5 the Hanvey house. I hear that you have a witness who

6 alleges that that was a tip-off", is anyone seriously

7 suggesting Atkinson would have put up his hand and said,

8 "That was me. I tipped Hanvey off about a murder, about

9 destroying and getting rid of his clothes in a murder,

10 and I want to tell you all about it"?

11 Sir, in our submission that is fanciful. One only

12 has to look and remember Mr Atkinson giving his evidence

13 to this Inquiry in the face of what is now overwhelming

14 evidence that he was involved in this conspiracy, the

15 overwhelming evidence, we all know, being Andrea McKee's

16 plea of guilty, Michael McKee spending six months in

17 prison and so on, and all the other evidence that has

18 been collected, but he still sat brazenly in front of

19 this Inquiry and said, "That just didn't happen".

20 Now, are we to pre-suppose, back then, in the face

21 of the limited evidence the police had, he would simply

22 have put his hands up? We say that's a fanciful

23 proposition and simply would not have happened.

24 THE CHAIRMAN: What do you say about the question of

25 whether -- a chance, when Atkinson was asked about the

1 telephone call, the effect of that would be to destroy

2 Tracey Clarke's cover?

3 MR ADAIR: We submit the probability is that was very

4 much to the forefront of Mr McBurney's mind, both in May

5 and in September. Now, he didn't say that during the

6 course -- the reason I say "the probability is", is

7 because, undoubtedly, Mr McBurney did not make that

8 proposition during the course of his interviews at any

9 time.

10 It is hard to imagine, knowing as we do that he was

11 one of the best senior investigating detectives in this

12 province, that it was not something, whether consciously

13 or unconsciously, that was not somewhere in his mind,

14 that by interviewing Mr Atkinson, whether in May or in

15 September, he was potentially going to expose the

16 critical witness in the murder case. I think that's

17 a very real -- I think it is a probability. I can put

18 it no further than that, sir, because he didn't say it

19 himself.

20 It may be so obvious that it is not something he

21 thought necessary to say. I just don't know. It was

22 always going to be difficult keeping Tracey Clarke on

23 board. That seems to be the effect of the evidence and

24 it seems to accord with common sense, knowing what we do

25 about Portadown back then. So it was always going to be

1 a delicate balancing act to get her right through the

2 procedure and into a witness box in court. Anything

3 that might jeopardise that, we submit would be something

4 that Mr McBurney would be keen not to do

5 THE CHAIRMAN: Is it right to say that to keep her as

6 a witness and safeguard her for that purpose was

7 impossible without Tracey Clarke's cooperation?

8 MR ADAIR: To keep Tracey Clarke?

9 THE CHAIRMAN: As a witness in safety, was impossible

10 without her cooperation?

11 MR ADAIR: Absolutely, sir. We know the efforts that were

12 made by Mr McBurney and P39 to relocate her, to get her

13 alternative employment, to get her out of Portadown away

14 from potential influences, but, of course, perhaps

15 understandably, being a 17-year-old girl, she didn't

16 want to move away, obviously, from Portadown, for

17 whatever reason.

18 This was not an unusual scenario for police to have

19 in relation to the prosecution of either paramilitaries

20 or people with connections with paramilitaries

21 throughout the period euphemistically called the

22 troubles in this province. Very often, there were

23 witness statements made by various people which were

24 either critical to the prosecution or important to the

25 prosecution. The police were walking on tenterhooks for

1 the months between charging and the court appearance as

2 to whether those witnesses would ultimately give

3 evidence.

4 Sometimes they did, but very often, as we know, they

5 didn't. I think we had another example yesterday when

6 Sir Ronnie Flanagan was being questioned about the

7 Colin Duffy situation, where apparently -- I don't know

8 anything about the case -- there had been a witness in

9 that case as well who ultimately didn't give evidence.

10 There is nothing unusual about this. The hope was

11 that they would give evidence, but the realisation was

12 that that may not come to fruition. That was just

13 a fact of life.

14 The point about that, sir, is that anything that

15 could be done to protect, in the sense of protect them

16 both physically and potentially protect their identity,

17 would be done, because already there was a tightrope.

18 Falling off that tightrope was all too easy,

19 unfortunately, in so many cases.

20 Now, the third stage, sir, that Mr McGrory referred

21 to was the making of the false alibi statement by

22 Andrea McKee.

23 It was suggested by Mr McGrory that the mistake here

24 was that she should have been arrested immediately after

25 making the statement and she would have broken. Again,

1 it is suggested that the best investigative strategy

2 would have been to arrest her and break her, I think

3 were the words that were used.

4 Again, sir, we respectfully submit, if one looks at

5 the reality of the situation as to what probably would

6 have happened if she had been confronted, take the first

7 scenario. If, on going to take the statement,

8 Detective Inspector Irwin, before she made the

9 statement, had confronted her with the fact that she had

10 come down with Tracey Clarke, so, therefore, he knew

11 what she was about to put in the statement was untrue

12 and said to her, "Now, be very careful", and, say,

13 cautioned her, well, what is the probability as to what

14 she would have done?

15 She probably, according to her evidence, would not

16 have made the statement. It is possible she might have

17 gone on to make it, but it is probable, if she had been

18 confronted in this way, that she would not have made the

19 statement.

20 What would the consequence of that have been? Well,

21 the consequence would be, as far as attempting to get

22 Mr Atkinson, absolutely nothing. That would have got

23 you absolutely nowhere unless she had gone a stage

24 further and said, "Not only am I not going to make this

25 false alibi statement, but I want to now give evidence

1 and make a witness statement concerning what I know

2 about a conspiracy between Robert Atkinson and my

3 husband, Michael McKee".

4 I rhetorically ask: what was the likelihood of that

5 happening? Our respectful submission is that it is just

6 about zero. At that stage, she was still living with

7 her husband under the influence of her husband, as we

8 know, living in Portadown. Is anyone, we rhetorically

9 ask, seriously suggesting that she was there and then

10 going to say, "I now want to make a witness statement

11 and potentially put my husband and others in prison"?

12 We say again that that was fanciful.

13 She gave evidence about this on 11th February of

14 2009. If you could call this up, please, first of all,

15 at page 43. At line 21 -- again, there seems to be

16 a mix-up in my -- this is a very short quote which

17 I will just tell you, sir, and then I will move on to

18 another passage. She was asked:

19 "Question: In April 1997 were you living in

20 Portadown?

21 "Answer: I was living in Craigavon.

22 "Question: Who with?

23 "Answer. With my husband, Michael.

24 "Question: What was your relationship with him at

25 the time? How good was it?

1 "Answer: It was okay."

2 I see actually at the top of the page, it is at

3 page 44 on the screen in front of you, sir, the very top

4 of the screen


6 MR ADAIR: Then if you go to page 67, line 22:

7 "Question: Doing the best you can with what might

8 be a hypothetical question, can you tell us how much it

9 would have taken for to you change your course?"

10 This is relating to the period when Irwin is taking

11 the statement:

12 "Answer: At that moment in time, I knew right from

13 wrong, and I'm responsible for my own actions, and,

14 foolishly, I shouldn't have gone in there and made that

15 statement. He was there to do his job and take

16 a statement, as he had been asked to. As I say, I can't

17 blame anybody but myself. I was asked to do that by

18 Robbie. I wasn't made to, and he took a statement as he

19 was asked to, from me, which was untruthful.

20 "Question: Were you dead set on doing this?

21 "Answer: no.

22 "Question: So if he had said, 'What are you doing

23 Andrea?'

24 "Answer: I would have got up and gone."

25 That's why I say the probability is that if she had

1 been confronted with it there and then, according to her

2 evidence, and I see no reason to doubt it, the

3 probability is she wouldn't have made the false

4 statement:

5 "Question: Would you have been prepared, can you

6 tell us, to uncover the cover-up, or would you have just

7 gone out of the room?

8 "Answer: I can't answer that."

9 She says she can't answer that, but in our

10 submission the probability is, having regard to the fact

11 she is still living with her husband, that she wouldn't.

12 If you go to page 94, which I assume then is 95 --

13 THE CHAIRMAN: Just pausing there, she could not have

14 exposed what had happened without incriminating her

15 husband, could she?

16 MR ADAIR: No, no.

17 At page 95, starting at line 25, she is asked:

18 "And the statement was in essence in support, first

19 of all, of what your husband said and to give an alibi

20 in a sense to Atkinson?

21 "Answer: That's right, yes.

22 "Question: While you were with your husband, can we

23 assume you wouldn't have changed that; you wouldn't have

24 phoned up the police and said, 'By the way, what I said

25 is untrue and my husband has also given a false

1 statement'; it is only when you had separated and

2 started a new life that you thought better of it?

3 "Answer: Yes."

4 So that's why we say that the probability -- that is

5 probably putting it modestly -- is that she would not

6 have implicated her husband and Atkinson in any

7 conspiracy at that stage.

8 So, therefore, at this stage, to have confronted her

9 would have got absolutely nowhere in the pursuit of

10 Mr Atkinson, and, of course, Mr McBurney, being the

11 astute detective that he was, would have realised that

12 immediately.

13 THE CHAIRMAN: Just before you move on from that point, we

14 are asked to criticise McBurney's decisions about the

15 investigation of the tipping-off allegation. What do

16 you say is the proper test of that? Is it that we think

17 there was another way he could have tackled it which

18 would have been better, or is it to say, well, this was

19 one of a number of courses and it was a reasonable

20 course to have taken?

21 MR ADAIR: The latter.

22 THE CHAIRMAN: The latter. Thank you.

23 MR ADAIR: Now, it is at this stage, sir, that the

24 allegation is made that Mr McBurney engages in what must

25 be the most Machiavellian strategy, if what Mr McGrory

1 is suggesting is right, because what is suggested now at

2 this stage is that, when Mr McBurney discusses with

3 Mr Irwin his essential delight at this development that

4 Andrea McKee has made this false statement, and

5 discusses with Irwin that this is the potential at some

6 stage for the breakthrough into getting Mr Atkinson,

7 Mr McGrory is forced to say, "Well, what is going on

8 here is that Mr McBurney, in fact, is not intent in

9 pursuing Atkinson, but, in fact, is engaging in the

10 Machiavellian approach of pretending to

11 Detective Inspector Irwin that he is intent on pursuing

12 Atkinson and that any conversation he has with Irwin

13 expressing that view is simply a subterfuge."

14 I mean, at this stage, sir, even on a rainy day

15 I put the novel down, because it is not suggested that

16 Mr Irwin is lying when he recounts the conversations

17 that he had with Mr McBurney about his approach and his

18 attitude and his desire to get Atkinson, what has to be

19 suggested now, at this stage, is that this was McBurney

20 really fooling Detective Inspector Irwin about his

21 intentions and about his attitude to this.

22 We can see what Mr Irwin said about this on

23 9th September at page 98 -- it is at your page 99,

24 line 3. This is Mr Irwin being asked about his

25 conversation with Detective Chief

1 Superintendent McBurney:

2 "Question: -- whether she should be confronted with

3 this or whether you should simply take a witness

4 statement from her?

5 "Answer: That's correct, sir.

6 "Question: So it was obviously something that was

7 tasking the mind of Mr McBurney at that stage?

8 "Answer: It certainly was, sir, yes.

9 "Question: He directed that you should not confront

10 her, but you should, in fact, just take the witness

11 statement?

12 "Answer: That's correct.

13 "The Chairman: What, draw her attention to the

14 declaration?

15 "Mr Adair: Yes.

16 "The Chairman: If she backed out at that, leave it;

17 if she didn't, take a statement?

18 "Mr Adair: That's right, sir."

19 I think that should probably read Mr Irwin answering

20 those questions, rather than me:

21 "Question: Now, I don't think you have said in so

22 many words, but is this proposition a reasonable one as

23 to what Mr McBurney was doing? Did he see this, in

24 other words, Andrea McKee making a false alibi

25 statement, as the potential way to break into the

1 conspiracy?

2 "Answer: Sir, when Michael McKee was interviewed in

3 Lurgan police station and I had a brief word with

4 Mr McBurney after that, he was delighted that the

5 Atkinsons had introduced other people into the

6 conspiracy, because he saw here we have a one-minute

7 phone call between one house and another house, and what

8 he had to prove -- here we were, two families, both of

9 interest, not to tell the truth. What he had to prove

10 was not only who had made the phone call, but what was

11 actually said on that phone call, and for any

12 investigator that is a massive task in relation to

13 a phone call.

14 "You can prove a phone contact, but who made it and

15 what was said on it -- and he saw the introduction of

16 people outside those family units as a real bonus to the

17 investigation. He believed at that stage this was

18 a bonus and an opportunity.

19 "Question: Now, we all know, as lawyers, the

20 dreaded alibi witnesses --

21 "Answer: Yes.

22 "Question: -- and what they are usually like. Did

23 he see, just to put it in a nutshell, the making of

24 a witness statement by Andrea McKee, this false alibi

25 statement, as a potential breakthrough eventually --

1 "Answer: He did indeed, sir.

2 "Question: -- into Atkinson?

3 "Answer: That's correct, sir.

4 "Question: Have you any doubt whatsoever that his

5 strategy at that stage was to get this false alibi

6 statement, and, when the time was right, break the alibi

7 statement?

8 "Answer: I have no doubt whatsoever, sir. What

9 I would say is, after I took the witness statement off

10 Andrea McKee and we spoke about it, he certainly gave me

11 his view, at that stage, that now the timing wasn't

12 right to move on, because what you would simply get was

13 Andrea McKee and a statement after caution from her

14 potentially, which then could not be used against

15 Robbie Atkinson.

16 "Question: In relation to the McKees, Michael McKee

17 and Andrea McKee --

18 "Answer: Yes.

19 "Question: -- was there any discussion between you

20 and Mr McBurney as to whether he thought he might be

21 able to break Andrea McKee eventually?

22 "Answer: Because of probably her relationship, that

23 she'd come to the police at the start, and underneath it

24 all Mr McBurney was of the view that she had been used

25 and forced into this situation and that she was the weak

1 link in the whole conspiracy.

2 "Question: What about your knowledge of whether the

3 marriage was a solid one or otherwise between Michael

4 and Andrea?

5 "Answer: Yes, Mr McBurney had certain views on

6 this as well. He believed that it wouldn't last, so he

7 did, sir.

8 "Question: Again, I think I have used this

9 expression before. Was his strategy at that stage then

10 to get this statement taken and wait in the long grass?"

11 I think the answer is:

12 "Answer: That's right, sir."

13 I am missing that page in mine.

14 So that's the nature of the discussion both pre and

15 after the taking of the statement by Mr Irwin and

16 Mr McBurney. It is not suggested that conversation did

17 not take place, but what is suggested, as I say, is that

18 this was some kind of subterfuge, Machiavellian

19 subterfuge, on the part of Mr McBurney, to fool Mr Irwin

20 as to his real intentions.

21 So what we respectfully submit, sir, is that, by

22 adopting the courses that had been suggested, either in

23 May or at any stage up to the point we are dealing with

24 in October when Andrea McKee made her statement, would

25 have got absolutely nowhere in attempting to prosecute

1 Mr Atkinson.

2 Now, the next stage that is criticised is the stage

3 when what we are calling the neglect file is lodged with

4 the DPP. The allegation is that, because of the way it

5 is worded, in particular, because of the fact that

6 specific attention is not drawn to the DPP's attention

7 concerning Andrea McKee's previous involvement with

8 Tracey Clarke, that there is something sinister about

9 that and that would tend to confirm that Mr McBurney did

10 not have this long-term strategy.

11 I deal briefly with this, sir. When considering

12 this aspect of the case, it is important, in our

13 submission, to look not only at the neglect file, but at

14 the murder file, which, of course, had gone in

15 previously, and to see what Mr McBurney and Mr Irwin had

16 indicated to the DPP concerning Tracey Clarke.

17 Now, the murder file, as we know, was submitted in

18 August of 1997. If I could have page [06134], please.

19 If you would highlight the bottom paragraph, please.

20 Now you will recall, sir, that when the murder file was

21 sent into the DPP, the statements of Tracey Clarke and

22 Jameson were enclosed separately in a separate file

23 because of the sensitivity. This is what is said:

24 "I am in no doubt that the evidence outlined by

25 Witness A", which is, of course, Tracey Clarke, "and

1 Witness B is truthful and correct. In addition,

2 Colin Prunty implicates Wayne Lunt."

3 Now, if I stop there for a second, and if we go then

4 to page [06135], the previous page, sir -- as we know,

5 the murder file was prepared by Detective

6 Inspector Irwin. It is he that is making the assertion

7 that the evidence of Tracey Clarke is truthful.

8 Now, before I come on to this document, it is worth

9 remembering he is not prevaricating and saying, "The

10 part of her statement concerning who was involved in the

11 attack on Robert Hamill is truthful, but the part about

12 the tip-off is a bit -- we are a bit less sure of", what

13 they are saying is, "This is a truthful statement".

14 This is then what Detective Chief

15 Superintendent McBurney says:

16 "Detective Inspector Irwin's comprehensive report

17 defines the circumstances and the difficulties of this

18 investigation.

19 "The non-cooperation of some witnesses and the

20 Hamill family's solicitor has resulted in all possible

21 evidence not being made available.

22 "The evidence of Witnesses A and B is crucial,

23 however. I refer you to the separate confidential

24 report submitted. I strongly support the recommendation

25 that an early consultation be held with these

1 witnesses."

2 So Detective Inspector Irwin's comments are being

3 adopted and approved by Detective Chief

4 Superintendent McBurney.

5 Now, at that stage, what is clear beyond

6 peradventure is that the DPP are being informed that

7 Tracey Clarke is a truthful witness. There is no

8 prevarication about the tip-off allegation.

9 Then if we go to the neglect file at page [09082] --

10 THE CHAIRMAN: Which document is this? Is this Irwin's

11 statement or McBurney's interview?

12 MR ADAIR: This is the neglect file put in by Mr McBurney.

13 THE CHAIRMAN: Thank you. Sorry.

14 MR ADAIR: If you go to [09080], first of all, please, at

15 paragraph 125, you will see, just to put this in

16 context, that what this is referring to is -- the

17 lines just above that at paragraph 124 relating to:

18 "He also told me that Robbie Atkinson was ringing

19 him every day to keep him up-to-date with the police

20 investigation."

21 This was relating, therefore, to the Tracey Clarke

22 tip-off allegation. This has not been mentioned very

23 much during the course of dealing with this report:

24 "This aspect of Witness A's statement cannot be

25 taken lightly and in many respects has a ring of truth

1 to it."

2 Now, we have dealt --and a lot of the concentration

3 has been on the word "sceptical", which I will come to

4 in a moment, but, in fact, prior to using that,

5 Detective Chief Superintendent McBurney has told the

6 reader that it can't be taken lightly and in many

7 respects has a ring of truth to it.

8 So, first of all, he has told the DPP in terms in

9 the murder file that Tracey Clarke is a truthful

10 witness, a witness of truth. Then in the neglect file

11 he says that her allegations can't be taken lightly and

12 in many respects has a ring of truth to it.

13 Then at page [09082], the reference, if you

14 highlight paragraph 135, just at the bottom of that

15 paragraph he indicates to the reader:

16 "Having found no evidence other than the telephone

17 billing to substantiate the allegation of Witness A, one

18 can remain sceptical, but there is absolutely no other

19 evidence to substantiate the allegation by Witness A."

20 What we say, sir, is that Detective Inspector Irwin

21 and Mr McBurney have told the DPP, first of all, that

22 Tracey Clarke is a truthful witness. They then in the

23 neglect file say that what she says about the

24 tipping-off has the ring of truth about it, and they

25 indicate scepticism about Atkinson's explanation for how

1 this all arose.

2 To suggest, in our submission, that this was

3 misleading is unfounded.

4 The question arises: should he also have included in

5 the neglect file what he, in fact, knew about

6 Andrea McKee's previous involvement with Tracey Clarke?

7 Perhaps he should have, but is one, I rhetorically ask,

8 going to say, because he didn't, that therefore there is

9 something sinister in his motivation?

10 He certainly did not say anywhere in either of these

11 reports, for example, that he believed Michael McKee or

12 that he believed Atkinson. He did quite the opposite.

13 He expressed his views that the probability was that the

14 truth lay with Tracey Clarke.

15 Of course, the issue arises -- and obviously

16 Sir John will know more about this than I do -- as to

17 what exactly has to be encompassed in a report to the

18 DPP when considering a file that is sent to them for

19 them to consider whether or not to prosecute. How much

20 detail does one go into?

21 I also mention, sir, of course, that Mr McBurney was

22 obviously at great pains all along to protect

23 Andrea McKee. I think I am right in saying that she is

24 not mentioned at all in the murder file. I think I am

25 right in saying that there was evidence that McBurney,

1 in fact, told Mr Irwin, "Look, keep Andrea McKee out of

2 this. There is no need to mention her name in the

3 murder file at all".

4 One might say, "Look, why wasn't it in the murder

5 file that the reason Tracey Clarke made a witness

6 statement was because Andrea McKee came along and told

7 us this and we met her up at the graveyard and took her

8 down and she was with Tracey Clarke?"

9 I think I am right in saying there is no mention of

10 that in the murder file either. So there is obviously

11 some concern to protect Andrea McKee. It may be that

12 was continuing along when the neglect file was submitted

13 THE CHAIRMAN: Is my recollection correct that McBurney said

14 in his interview words to this effect: he didn't think

15 Andrea McKee carried the case any further forward?

16 MR ADAIR: That's right.

17 THE CHAIRMAN: Therefore, that was not anything the Director

18 would need to know about. He wanted to know what the

19 evidence was. Is that a fair summary?

20 MR ADAIR: I think so, sir. It comes back to the point, as

21 I say, what has to be included in these reports? Of

22 course, a policeman's belief whether a person is

23 truthful or untruthful in many respects with the DPP is

24 neither here nor there. They decide whether to

25 prosecute on the evidence that's presented to them.

1 I suspect it is useful to the DPP to know whether the

2 police have very good reason to doubt the truthfulness

3 or otherwise of a witness, but the question does arise

4 as to how much is supposed to be included in these

5 reports to the DPP?

6 To suggest that it is misleading, in our submission,

7 is unfounded. The best that might be said, or worst

8 that might be said, is that it might have been

9 preferable if the knowledge that the police had about

10 Andrea McKee's previous involvement was included in the

11 report. I don't think I could gainsay that. That might

12 have been preferable, but to say that, therefore, there

13 is something sinister in relation to Mr McBurney, in our

14 submission is unfounded.

15 Now, the next stage that Mr McGrory says that best

16 investigative strategy was not followed is in October of

17 1999. This is the point, sir, you will recall, when the

18 information came to hand to Detective Inspector Irwin

19 that Andrea McKee and her husband had separated.

20 Sir, I think it is worthwhile -- I mention just for

21 completeness at this stage that, of course, the

22 allegation is also made against Mr McBurney that there

23 is no record anywhere of what his strategy was. In

24 fact, the converse is true. This memo demonstrates in

25 writing what his strategy was and what had been

1 indicated to Mr Irwin. Quite the converse to what is

2 being suggested.

3 The memo is at page [02395]. It says:

4 "Michael and Andrea McKee who resided at [blank]

5 Craigavon have separated. Michael McKee left Andrea for

6 another woman and has moved to [blank]. Andrea has

7 returned to Wales. Detective Chief Superintendent

8 McBurney informed of this development and enquiries

9 being made to confirm this and their present location.

10 Further details submitted in due course and at

11 an appropriate time regarding coroner's inquest", and

12 this is another point that is criticised, that he should

13 have moved there and then.

14 Clearly, what was in their minds was to move once

15 the situation concerning the coroner's inquest, which

16 was being objected, to, of course, by the Hamill family,

17 was resolved. So:

18 "... at an appropriate time regarding coroner's

19 inquest both to be spoken to again", and here is the

20 important point, "reference their previous accounts.

21 This will be updated by message sheet."

22 So here in black and white is the strategy that had

23 been engaged and adopted by Mr McBurney and communicated

24 to Detective Inspector Irwin.


1 round, doesn't it? This is Irwin speaking to McBurney.

2 MR ADAIR: Yes. We say this memo demonstrates that there

3 was a strategy, first of all, that Mr Irwin was aware

4 of, secondly, that he was in communication with

5 Mr McBurney about, and, thirdly, that it referred to

6 tackling Andrea McKee reference her previous account,

7 not just talking to her again about some nebulous

8 matter, but he wanted to actually put to her --

9 REV. BARONESS KATHLEEN RICHARDSON: The initiative seems to

10 be from Irwin at this point.

11 MR ADAIR: No. This simply is a memo indicating that Irwin

12 has become aware of the fact that the McKees have

13 separated. He has communicated this to Detective Chief

14 Superintendent McBurney, and that, at a later stage,

15 reference coroner's inquest, they are to be spoken to

16 again reference their previous accounts.

17 What we're saying is this copper-fastens the fact

18 that McBurney had adopted this strategy, that he

19 communicated this strategy to Irwin, and here is Irwin

20 actually recording on the memo sheet information

21 relevant to that strategy.

22 THE CHAIRMAN: You say this memo has to be read in the

23 context of what had passed earlier between McBurney and

24 Irwin?

25 MR ADAIR: It is part of the continuing process of

1 communication of his strategy between McBurney and Irwin

2 and absolutely confirms his views that he had expressed

3 to Irwin at the time Andrea McKee made the false

4 statement. This is potentially the breakthrough, and

5 here it is recorded in black and white.

6 Irwin's evidence about this is on 9th September. It

7 is my page 131. Starting at line 14. That is 132 on

8 the screen:

9 "Question: At this point, after Andrea McKee has

10 made the statement, did Mr McBurney then explain he had

11 a strategy as to what he would do, having put you in the

12 uncomfortable position of taking the statement?

13 "Answer: When I came out of that interview, sir,

14 I believe I met Mr McBurney a few days later and

15 explained to him what had occurred in taking the

16 statement and I said, 'You need to get a team with

17 another investigating officer and investigate that area

18 of it'. He said, 'Leave it with me', and he came back,

19 because, at that stage, the Hanveys hadn't been

20 interviewed, sir, and he came back to me some time

21 later."

22 At page 133, line 1:

23 "He says, 'Now is not the right time to jump. What

24 we would get at the minute is we would get Andrea McKee,

25 potentially get Andrea McKee, but we wouldn't get

1 Atkinson', because Andrea McKee at that stage was

2 closely linked to Michael and closely linked to the

3 Atkinson as and his belief was at that she would not

4 give evidence against Atkinson. That was his belief at

5 that time, sir.

6 "Question: Did he say at that time that he had

7 a hunch that this union between the McKees wouldn't

8 last?

9 "Answer: What he said was that he was delighted

10 that -- not delighted -- he was pleased that two

11 individuals that weren't attached to the family units

12 had become involved in the investigation and he saw that

13 as the opportunity to get to the truth.

14 "As I said earlier, sir, we are talking about a

15 one-minute phone call. We are talking about not only

16 what was said or who made the phone calls, but what was

17 actually said in that phone call. That was the only way

18 he was going to convict Mr Atkinson, because Mr Atkinson

19 had said he had went home, had gone to bed, and had no

20 dealings -- and wasn't aware of the phone call. The

21 only way to break that was to get direct evidence from

22 somebody involved in that alibi issue."

23 "Question: See, the problem with all of this is,

24 I have suggested to you, Inspector Irwin, it is the best

25 part of another three years before anything does happen.

1 "Answer: That's correct, sir, yes.

2 "Question: I am suggesting to you that it stretches

3 the imagination far too far that something as important

4 as this, in terms of an investigative strategy, would be

5 let sit for three years.

6 "Answer: But, sir, what is the point in jumping too

7 early and losing the opportunity?

8 "Question: Well, what if the opportunity never

9 comes.

10 "Answer: Yes. Put it this way, sir. Andrea McKee

11 was going to be arrested -- I am in no doubt about

12 that -- at some stage and be interviewed about it.

13 I know you don't want to accept that, sir, but if

14 you look at the message sheet that I also put in, in

15 '99, or whatever it was, that Andrea McKee and her

16 husband had separated, there is a message sheet in the

17 system and that Mr McBurney intends to interview these

18 witnesses again.

19 "Question: But what if they had not separated?

20 "Answer: Sir, they were going to be arrested then.

21 That's what I am saying.

22 "Question: How long did Mr McBurney say he was

23 going to wait for this separation before he would then

24 arrest her?

25 "Answer: The trial had went on sir, and then he was

1 very keen to get an inquest.

2 "As you are aware, the inquest process went on for

3 longer than we anticipated. You were objecting to the

4 inquest and Mr McBurney wanted an inquest for all the

5 information to come out."

6 Then if one goes down to line 21, page 135, he says:

7 "Answer: ... All I can say from my point of view is

8 that Mr McBurney, to me, was keeping it under review,

9 and I was briefing him regularly during the coroner's

10 inquest of how the process was going."

11 So, in our submission what was happening in

12 October 1999 confirms, first of all, that the strategy

13 was in place, confirms that McBurney and Irwin discussed

14 it, not just on one occasion, but, if Irwin is right, on

15 a number of occasions. They were awaiting the outcome

16 of the inquest before making their move towards

17 Andrea McKee.

18 In fact, as we now see, when the coroner informed

19 the parties there was not to be an inquest, they moved

20 within a number of days to re-interview -- their

21 intention to move was formulated within a number of days

22 and they, in fact, moved, as we know, on, I think it is

23 20th June.

24 THE CHAIRMAN: We shall have to consider why there was that

25 wait between October and the decision not to have the

1 inquest; in other words, why wait for there to be

2 an inquest?

3 MR ADAIR: That's something which, sir, I can't give you

4 an answer to, but it would appear that they certainly

5 decided that it would not be appropriate to re-interview

6 Andrea McKee before the inquest situation had been

7 resolved.

8 Would it have been appropriate at that stage,

9 an inquest in the offing, to have gone over and

10 re-interviewed Andrea McKee? I don't know. It may have

11 been. I am not absolutely sure tactically or

12 strategically why it was necessary to wait for the

13 inquest situation to be resolved, but that certainly

14 seems to have been their mindset, unless the memo sheet

15 is just made up

16 THE CHAIRMAN: What was the practice in Northern Ireland

17 about holding an inquest when there was an ongoing

18 investigation?

19 MR ADAIR: The inquest usually awaited the outcome of the

20 ongoing investigation. It was opened formally and then

21 adjourned until the outcome of the investigation.

22 THE CHAIRMAN: To avoid that, there could have been

23 a continuation of the investigation not disclosed to the

24 coroner. Now, what do you say about that, about the

25 desirability or otherwise of that?

1 MR ADAIR: Sorry, sir, there could have been an ongoing --

2 just keep the investigation going to delay the inquest?

3 THE CHAIRMAN: No, no, no. Without telling the coroner, so

4 that he would hold his inquest, but there would still be

5 an ongoing investigation about which he didn't know,

6 because he was not being told.

7 MR ADAIR: I am not aware of that ever happening, sir, to be

8 absolutely honest with it. Are you suggesting it is

9 kept hidden from the coroner?

10 THE CHAIRMAN: I am not --

11 MR ADAIR: I know you are not suggesting it, but are you

12 asking me --

13 THE CHAIRMAN: I am just asking you about the propriety of

14 that. If the practice would have been to adjourn the

15 inquest because there was an ongoing investigation, what

16 do you say about the proposition they could have

17 continued the investigation without telling the coroner

18 and, therefore, without delaying the inquest?

19 MR ADAIR: That would not be a proper course of action, sir.

20 THE CHAIRMAN: This is what I am asking you about.

21 MR ADAIR: My understanding is that the police liaise with

22 the coroner and say "Right. The investigation has now

23 reached its conclusion and it is an appropriate time

24 that you are allowed to hold an inquest". Mr McGrory

25 might be able to answer this better than I can, sir. My

1 experience of inquests is zero, actually.

2 THE CHAIRMAN: Maybe Mr Wolfe can tell us more about it.

3 MR ADAIR: I do know, just from practice, that the coroner

4 did not hold the inquest until the investigation was

5 over. It would be quite wrong for the police to

6 misinform the coroner that an investigation was

7 continuing.

8 THE CHAIRMAN: Or simply not tell him.

9 MR ADAIR: Or simply not tell him in some way to try to

10 delay the inquest. I don't think that has been

11 suggested in this case, sir.

12 MR UNDERWOOD: We are at the great advantage of having

13 Mr Daly here, who, amongst other things, acted for the

14 coroner. It may well be, if there is a question about

15 this, I can throw him to the lions.

16 MR WOLFE: I am grateful for that.

17 MR ADAIR: The fourth stage which Mr McGrory refers to is in

18 June 2000. Now, if we could have page [02416],

19 please --

20 THE CHAIRMAN: I think we will have a break at this stage

21 and come back at 11.15 am.

22 (11.05 am)

23 (A short break)

24 (11.15 am)

25 THE CHAIRMAN: Yes, Mr Adair?

1 MR ADAIR: Thank you, sir.

2 Can I clear up and answer, I hope, your question,

3 sir, as to whether Mr McBurney mentioned the other

4 enquiries that he was involved in? I don't have

5 a page number, but it is Mr McBurney's first Inquiry

6 interview at page 13. Sorry. It starts at page 12,

7 I am told. Sorry, sir. It is giving us page 12 on

8 our ...

9 THE CHAIRMAN: Never mind. Just tell us what he said.

10 MR ADAIR: He recounts the murder investigations that he was

11 involved in in that period and, in fact, in his second

12 Inquiry interview makes reference to the fact that one

13 of the murder enquiries relating to the murder of the

14 two policemen in Lurgan had to be suspended because of

15 lack of resources.

16 THE CHAIRMAN: Thank you.

17 MR ADAIR: Sir, I think I am right in saying -- I have not

18 re-read the entirety of the transcript again, but I

19 don't think he said, "The reason I did not interview

20 Mr Atkinson until September was because of ..."

21 I am simply stating, sir, that, factually, that's

22 what he was involved in at the time.

23 Secondly, there are two other matters I should clear

24 up before I continue. As I have told you, I have zero

25 experience of inquests, but having spoken to Mr Daly,

1 I am told, sir, that the coroner has a discretion to

2 hold an inquest, even if an investigation is continuing,

3 except where someone is charged with murder and that is

4 either pending or ongoing. So that's what I am told by

5 Mr Daly. I see him nodding in agreement, sir. That's

6 the legal position.

7 The third thing that I have been asked to clarify by

8 Mr McGrory is in relation -- and I am going back to the

9 Land Rover crew and their discussion with Forbes and

10 Bridgett. Mr McGrory had, during the course of his

11 submissions, said they, ie the Land Rover crew, knew

12 that they were trouble-makers, Stacey and Bridgett

13 were trouble-makers and that's what I was quoting,

14 Mr McGrory's reference to that. Mr McGrory now wants to

15 correct himself and me.

16 MR McGRORY: In the best traditions of confessing to

17 wrongdoing in the course of advocacy.

18 MR ADAIR: Apparently, it was P40 who gave the evidence he

19 knew they were trouble-makers. There is no direct

20 evidence that the others knew that they were

21 trouble-makers, but one can -- we would respectfully

22 say, if they are known to P40, they may have been known

23 to the others as trouble-makers. I just can't say.

24 THE CHAIRMAN: Thank you.

25 MR ADAIR: I am coming on -- I know I am perhaps taking

1 a little longer than anticipated, and I will try to be

2 as brief as I can in relation to these points while

3 doing justice to my clients.

4 The fourth stage I was referring to, and that

5 Mr McGrory referred to, was June of 2000.

6 Now, this starts off with the message sheet that

7 appears at [02416]. If you just highlight that, please,

8 it says:

9 "Confirmed formally ..."

10 It is dated, you will see, 2nd June 2000:

11 "Confirmed formally by Mr Leckey, HM coroner, that

12 he had reconsidered the situation regarding holding

13 an inquest into the death of Robert Hamill and that he

14 had now decided not to hold an inquest. He requested

15 that I now inform Witness A and Witness B of this

16 situation. Witness B informed by DC Honeyford.

17 Witness A now residing in ...", it gives her address,

18 "with Allister Hanvey and is believed to be pregnant.

19 Presently no contact with Witness A and her mother.

20 Attempts made to contact Witness A - no answer. Coroner

21 informed of this position."

22 The important part is:

23 "Updated Detective Chief Superintendent McBurney of

24 situation regarding coroner's formal decision and as

25 a result will not have the opportunity to speak again to

1 a number of individuals. Decision made to re-interview

2 Michael and Andrea McKee. Developments reported via

3 message sheet."

4 Then it goes on to say:

5 "Actually informed of this decision on 19th May 2000

6 by HM Coroner himself. No action was required until he

7 formalised his decision in writing."

8 So informally they appear to have been told on

9 19th May, but then the formal decision comes some time

10 later.

11 Now, what we say, sir, is again contrary to the

12 suggestion that there is no record anywhere which

13 confirms Mr McBurney's strategy, that this again is

14 confirmation of the strategy that had been employed by

15 Mr McBurney along with Inspector Irwin from the outset.

16 Now, the suggestion is made also in relation to the

17 events that occurred in June prior to McBurney and Irwin

18 going over to see Andrea McKee -- it was suggested

19 essentially, really, it was Sir Ronnie Flanagan who, for

20 one reason or another, pushed and pushed for this to

21 occur.

22 Now I know it is not suggested there was a proper

23 motivation for that, that his motivation was something

24 else. It was also suggested that Mr McBurney lied, and

25 that's the word that was used, when he told the Inquiry

1 interviewers that he had not spoken to the chief

2 constable prior to going over to speak to Andrea McKee.

3 Dealing with the latter point, first of all, it

4 seems highly probable that Mr McBurney did, in fact,

5 speak to Sir Ronnie Flanagan before going to interview

6 Andrea McKee, because we have heard from the chief

7 constable about that. Therefore, Mr McBurney was wrong

8 when he said he spoke to no-one before he went over to

9 speak to Andrea McKee.

10 We would respectfully submit what loses any

11 rationale is why that would be a lie as opposed to

12 something that he simply either forgot or did not

13 recall. What possible motivation could Mr McBurney have

14 had for saying, "I didn't speak to anyone before I went

15 over and spoke to Andrea McKee"? Unless one is going

16 into the realms of absolute fantasy land and some wild,

17 sinister motivation for this, what possible reason would

18 he have for lying about that?

19 In fact, wouldn't it have been very much in his

20 interests to say, "Oh, yes, I went to speak to

21 Sir Ronnie and told him about the window of opportunity.

22 He agreed with it and off I went". So to say it is

23 a lie is, in our submission, unfounded.

24 We know also that, whilst at one stage he said he

25 spoke to no-one before he went to speak to Andrea McKee,

1 virtually I think on the next page of his interview he

2 recounts to the interviewer that he had spoken to

3 ACC White before he went over to see Andrea McKee,

4 because ACC White had to arrange the resources, the

5 plane, the manpower and so on.

6 SIR JOHN EVANS: Mr Adair, wasn't the issue that McBurney

7 was being asked about whether or not he was under

8 instructions from the Director's office or from

9 whomever, and that was the point he was raising, that he

10 didn't feel the need to check out with any of those

11 before he continued his investigation? It is not

12 anything to do, in my view, with what he had to say

13 about advising senior police officers.

14 MR ADAIR: That's right. I think that's absolutely right.

15 The reason I am dealing with it is because it is

16 suggested that this is a lie. What possible motivation

17 for a lie about speaking to the chief constable is hard

18 to see, unless someone can suggest one to me. It is

19 just very difficult to see.

20 What is absolutely crystal clear, in our submission,

21 is that it was McBurney who went to see the chief

22 constable and told him about the window of opportunity.

23 It has been suggested that this was not McBurney doing

24 this off his own bat. Because of the words "I pushed

25 and pushed", used by the chief constable, and because of

1 the ambiguity in some of his answers, the suggestion is

2 being made that this was not McBurney's idea at all,

3 that this was the idea of the chief constable.

4 I think if one looks at the transcript yesterday of

5 what the chief constable actually said, it is clear

6 beyond peradventure that the sequence events was that

7 McBurney went to the chief constable and informed him of

8 the opportunity, and the chief constable -- whether the

9 words "pushed and pushed" or "encouraged" should be

10 used -- agreed with that strategy.

11 Some confusion has arisen because of the two

12 meetings that were had first of all with Mr xxxxx and,

13 secondly, with Mr Langdon. The first meeting, as we

14 know, was on 9th June, and I am not going to call up

15 these documents, sir, because I think it's fairly

16 self-evident. Having said that, I now contradict myself

17 and I will call up those documents. Page [39623],

18 please. This is a memo dated 12th June of a meeting

19 that Mr xxxxxx had with the chief constable on 9th June

20 concerning the tip-off allegation.

21 Now, I am not going to go through it and I will

22 stick to that, but there is no mention in that memo of

23 any new breakthrough in relation to Andrea McKee. That

24 was not discussed at that meeting.

25 You will also see, if you read the transcript of

1 what Sir Ronnie Flanagan said concerning where he got

2 this information for this meeting of 9th June, that he

3 thought it may have been Maynard McBurney. It could

4 have been the assistant chief constable, but there was

5 no degree of certainty where that information came from.

6 The likelihood is, whatever briefing the chief

7 constable received before the 9th June meeting, it was

8 not from Maynard McBurney, because Maynard McBurney

9 would have said to him at that meeting, "What's more,

10 there is a further line of enquiry that we are about to

11 follow".

12 So this meeting of 9th June makes no reference

13 whatsoever to the tip-off allegation.

14 The second memo from Mr Langdon is at page [39692].

15 This is a memo of 24th July of 2000 relating to

16 a meeting on 21st July of 2000 between the chief

17 constable and Mr Langdon. Where the confusion and

18 allegation concerning -- or the suggestion that it was

19 the chief constable who had directed this re-interview

20 of Andrea McKee comes from is from the following page,

21 [39693], paragraph 7. If you would highlight that

22 paragraph, please:

23 "I asked what had precipitated the new criminal

24 investigation. The chief constable said that when the

25 coroner had given 'the gem' to Robert Hamill's family

1 solicitors he himself had 'pushed and pushed' and the

2 re-interview of Mrs McKee followed directly from that.

3 ('the gem' is presumably the information that statements

4 identifying the murderers had been withdrawn)."

5 From that, understandably, at first blush,

6 Mr McGrory makes the suggestion that it was not

7 Mr McBurney's idea to re-interview Andrea McKee, but, in

8 fact, this came from the chief constable.

9 It is clear, in our submission, if one goes to

10 Mr Flanagan's evidence on 10th September at page 200,

11 Day 61, and at line 16 ...

12 THE CHAIRMAN: Page 201, 7:

13 "Answer: I was pushing and pushing ..."

14 MR ADAIR: Unfortunately, there is confusion about the

15 page numbers. I will tell you what he said, because

16 I can say it in a sentence, sir. What Sir Ronnie said

17 was that "the gem" had been given to him, but what drove

18 him to insist that this woman should be re-interviewed

19 was the late Maynard McBurney briefing to him of a new

20 development that gave, in his view, some hope.

21 He later went on to say:

22 "Answer: I certainly pushed and pushed, having been

23 given the briefing by the late Maynard McBurney."

24 That's page 200, line 22. Stop there.

25 He later goes on to say:

1 "So his briefing to me was before he travelled to

2 interview her."

3 That's Maynard McBurney's briefing. (Page 201,

4 line 12).

5 He later went on to say that McBurney appeared to be

6 absolutely delighted to have a new opportunity, because

7 he always suspected that the alibi was not a real alibi

8 THE CHAIRMAN: We don't have to look at that phrase "pushed

9 and pushed" uncritically. It may have been exuberance,

10 purple patch, call it what you will.

11 MR ADAIR: The only point I make about it is this, sir, that

12 it was McBurney's idea. The suggestion has been made

13 that because of that reference in the Langdon note that

14 it wasn't McBurney who initiated, who formulated, first

15 of all, the idea and initiated the idea and suggested

16 the idea, but, in fact, it was, and again, totally in

17 accordance with his strategy.

18 Now the -- as we know, just for completion, he went

19 over to Wales, got a witness statement from

20 Andrea McKee, and here is the breakthrough. I will deal

21 with this briefly in a minute or two.

22 The question arises then, now that we know, we say,

23 and can see in black and white the strategy developing

24 and developed, why is it suggested that, in fact, this

25 is not a strategy, but he had an ulterior motive?

1 Mr McGrory says that the suggestion is that he

2 stumbled. What I take that to mean is possibly that

3 initially Mr McBurney, because of the person he was, was

4 determined to pursue Atkinson, to root out a bad

5 policeman, but for some reason, at some stage, which it

6 is not absolutely clear it is suggested, but at some

7 stage, he stumbled.

8 Now, of course, to say that in the face of the

9 overwhelming evidence about the integrity and character

10 of Mr McBurney requires a reason. Why did he stumble?

11 Why did a man, who has potentially or probably set off

12 to root out a bad policeman, stumble? As I say, in the

13 face of the overwhelming evidence from both junior,

14 senior and the most senior police officer concerning the

15 character of Mr McBurney, some reason has to be grasped.

16 In our submission the reason that is suggested is

17 grasping at straws, because the reason that is suggested

18 now, at a very, very late stage, is that the chief

19 constable at some stage intervened and was the guiding

20 hand to Mr McBurney's non-pursuit of Constable Atkinson.

21 It is based on no evidence and it is interesting, we

22 respectfully say, to say how this argument developed.

23 The suggestion essentially is that because

24 Sir Ronnie Flanagan has potentially lied about, for

25 example, the meeting with Mr Langdon where it is alleged

1 he used the physical form of cradling a head when

2 describing a situation with Robert Hamill, because he

3 lied about that and potentially lied about one or other

4 matters in his evidence, therefore he is the guiding

5 hand in relation to Mr McBurney.

6 Well, that's a quantum leap which is unjustifiable,

7 in our respectful submission. To say that because

8 a person lies about a matter which may be in their own

9 interests to lie about -- now, Sir Ronnie Flanagan had

10 every reason -- I am not saying that he is lying about

11 it. That's not part of my brief, but say he is lying

12 about that incident with Mr Langdon, well, it is out of,

13 you may think, self-interest that he should say he

14 didn't do that, because it might be regarded as

15 something which was totally inappropriate, but what we

16 say is that it is taking a leap in the dark to then say

17 because a person lies about one thing which we can

18 explain out of self-interest, therefore he is the person

19 who is guiding Mr McBurney.

20 Can I say this, sir? That's a very serious

21 allegation to make, not only against

22 Sir Ronnie Flanagan, but it is a very serious allegation

23 to make against Mr McBurney, that a man of his

24 integrity, character and background was essentially

25 colluding with the chief constable to prevent the proper

1 investigation of a corrupt policeman. It is founded on

2 sand. It is an allegation, as I say, that came at

3 a very late stage in the day.

4 It is interesting just to see how this allegation

5 arose in terms of Mr McGrory's submissions. It

6 undoubtedly was referred to in a number of lines in his

7 written submissions, as Mr Underwood pointed out.

8 If one looks at page 118 of the consolidated

9 submissions -- sorry, page 118 of Mr McGrory's

10 submissions on 7th December

11 SIR JOHN EVANS: Day 70?


13 MR ADAIR: At page 118, without calling it up, Mr McGrory

14 suggested it was a crime of opportunity by Mr McBurney.

15 This was the initial allegation made against

16 Mr McBurney, that it was a crime of opportunity.

17 Then at my page 131 on 7th December -- to save time,

18 sir, if I read this, and then in due course I ask you to

19 have a look at it perhaps on the transcript. It is my

20 page 131. That may be 130 or 132. What Mr McGrory says

21 is:

22 "That is right at the heart of this Inquiry, we

23 submit. It is a very, very disturbing submission to

24 have to make, but it is collusion in its worst form. It

25 is a very subtle form of collusion, in the sense that,

1 if it is correct that Atkinson, who is a policeman, had

2 engaged in the tipping-off of a murder suspect for one

3 reason or another, and that there was a belief on the

4 part of senior police that that was so, and even in

5 McBurney's case that he is making it was a belief,

6 because, without it, there would have been no strategy,

7 for nothing to be done --

8 "The Chairman: So you say this was collusion

9 between McBurney and his senior officers?

10 "Mr McGrory: No."

11 So on 7th December, in making his submissions, when

12 asked the direct question:

13 "The Chairman: So you say this was collusion

14 between McBurney and his senior officers?

15 "Mr McGrory: No, it is collusion between McBurney

16 and Atkinson, albeit it is not that the two necessarily

17 ever spoke to each other, apart from in the context of

18 the investigation, but it is our respectful submission

19 that, for reasons that were best known to Detective

20 Chief Superintendent McBurney, he," McBurney, "decided

21 to bury it.

22 "Now we can only speculate as to why he might have

23 done that ..."

24 That's absolutely right, because what has happened

25 in this case is, when Mr McGrory, with respect, comes

1 back on 8th December, he does start to speculate, and

2 that speculation is because the chief constable has lied

3 about cradling and one or two other matters, therefore

4 he is guilty of collusion, and that's precisely what has

5 happened

6 THE CHAIRMAN: As a matter of logic, if someone tells a lie,

7 you may say that means we have to look more carefully at

8 other parts of his evidence, but you can't then put

9 a proposition to him which he denies and say, "That is

10 a lie", because you have to have some foundation for the

11 proposition.

12 MR ADAIR: Exactly, and there is not.

13 THE CHAIRMAN: The lie is not a foundation.

14 MR ADAIR: No, sir, but what is, in our submission,

15 troubling -- and I come back to where I started -- is

16 that these people are human beings. McBurney's wife is

17 a human being and she reads on this transcript for the

18 first time, not only was his investigative strategy

19 flawed, but he is guilty of collusion with the chief

20 constable. What we say is that this should be, in our

21 submission, not just rejected by the Panel, but should

22 be commented on by the Panel and made clear what their

23 thoughts are about it.

24 Mr McGrory says:

25 "Now we can only speculate as to why he might have

1 done that", that's McBurney, "and whether or not he felt

2 he had the green light from his superior officers or had

3 a green light from his superior officers or whether or

4 not he was deceiving his superior officers. We just

5 don't know."

6 "We just don't know". This is on 7th December. By

7 8th December, there is collusion.

8 On 8th December, at page 2, and it may be if we

9 could call this up, page 2 on 8th December, line 14. It

10 is your page 3, this page 3.

11 "Now what we say to that is Detective Chief

12 Superintendent McBurney may have not have set out with

13 that intention", that's the intention of protecting

14 Atkinson, "but that, at a certain point, the opportunity

15 certainly arose for him to take a different course, and

16 that opportunity clearly arose between the interviews of

17 9th September and 9th October, when the ICPC, for some

18 inexplicable reason, which we will come to, absented

19 itself from the supervision of the investigation.

20 "The question then must arise: even if he had

21 an opportunity, why would he take it? Why would

22 a Detective Chief Superintendent take it upon himself to

23 defend the good name of the RUC by deliberately

24 compromising or sabotaging his own investigation into

25 an allegation that there was a corrupt policeman in the

1 Land Rover when Robert Hamill was attacked and murdered?

2 Our answer to that has to be he either did it on his own

3 or he had some guiding hand.

4 "The Chairman: Some?

5 "Mr McGrory: Guiding hand. He may" -- and the use

6 of this language is actually interesting -- "He may" --

7 this is a collusion allegation -- "He may have had

8 an indication from someone above him -- he may have

9 had -- that he could behave in this way or that he

10 should behave in this way if the opportunity arose."

11 Then if we go to the next page, line 24, and this is

12 interesting:

13 "We make the submission that if there was a guiding

14 hand, it might" -- "might" -- "have been

15 Sir Ronnie Flanagan."

16 There are other comments, sir, which you will -- and

17 allegations then made, which, again, I am not going to

18 take up the Panel's time with. You will have the

19 opportunity at some stage to read these before

20 considering your conclusions, but they are replete with

21 "may" and "might" and "possibly", but yet the allegation

22 is out there that the stumbling by Mr McBurney was

23 Sir Ronnie Flanagan and his guiding hand.

24 Of course, the reality is, in our submission, that

25 that allegation, or something akin to that, has to be

1 made to try to explain why a man such as

2 Maynard McBurney would do as is being suggested. It is

3 a wee bit like, if someone does something or says

4 something about me, which, on one view, might be

5 offensive, but might have an innocent explanation, if

6 I know something about the character of that person,

7 their integrity, their ways of doing things, I will

8 probably say, "Well, I am sure he didn't mean to offend

9 me or mean to hurt me". If, on the other hand, I know

10 he is a rogue, then I will probably say, "He probably

11 intended to damage me either verbally or in whatever

12 other way". That's just part of human nature.

13 Once we know the -- the importance of the character

14 of a person is that they are likely to be more

15 believable, first of all, in what they say, which is

16 common sense, but also in the context of this Inquiry

17 knowing what we do know about McBurney's integrity and

18 what everybody has said about his determination to root

19 out the likes of Atkinson, some startling proposition

20 has to be put to this Inquiry as to why he would have

21 tried to protect him.

22 Of course, the startling proposition is that there

23 was collusion or a guiding hand between

24 Sir Ronnie Flanagan and Mr McBurney, which we ask the

25 Panel to reject out of hand.

1 Now, I just want to say also that, in fairness to

2 Mr McBurney, much has been said and much has been

3 alleged about him. Can I remind just very briefly the

4 Panel as to some of the -- as to what some of the

5 witnesses said about what they knew about Mr McBurney?

6 One of those witnesses was Mr Stewart, who, as we

7 know, did not particularly like Mr McBurney. That was

8 certainly the impression that you may have got. At

9 page [1266] of the consolidated submissions, bottom

10 paragraph, this is quoting what Mr Stewart said:

11 "Question: Can I ask you this, just to lay the

12 groundwork for the question first of all? You knew

13 Mr McBurney?

14 "Answer: I did, yes.

15 "Question: Did you get on with him?

16 "Answer: Not especially, no.

17 "Question: Was he a friend?

18 "Answer: No.

19 "Question: If you asked him what day it was, what

20 would his reply be?

21 "Answer: He would probably want to know why you

22 wanted to know what the day was."

23 He further stated then at page 177:

24 "Answer: Having been involved in very considerable

25 detail in this investigation, being aware of everything

1 that Mr McBurney did, did you find anything that

2 suggested Mr McBurney was other than enthusiastic in

3 pursuing Atkinson?

4 "Answer: No, nothing.

5 "Question: You did, however, carry out steps that

6 he hadn't. There is no gainsaying that.

7 "Answer: Yes, that's true.

8 "Question: Knowing McBurney as you did, because,

9 unfortunately, as we all know, he is deceased and the

10 Panel will not be able to see him, so it is important we

11 get some flavour about the man, what would have been his

12 attitude towards getting a bad policeman?

13 "Answer: Oh, he would have been absolutely

14 determined to bring that person to justice, totally

15 determined. He would have viewed such a person with

16 absolute disdain."

17 Then at page [1268] starting with the paragraph near

18 the top of the page. This is in the consolidated

19 submissions again:

20 "Perhaps the most significant piece of evidence

21 given as to the conduct and intentions of DCS McBurney

22 in both the murder and tip-off investigations was that

23 of K, who, as we know, re-investigated these matters

24 with a fine-toothed comb. His evidence first dealt with

25 the extent of the original investigation up to the date

1 he joined at page 1."

2 Could I have [1269] please, starting at the bottom

3 of the page:

4 "Question: Can you help us about your understanding

5 of why it took until June 2000 for the McKees to be seen

6 again when they split up in 1999?

7 "Answer: In terms of what I was briefed by

8 Mr McBurney, and on my appointment he had indicated to

9 me that his intention was always to monitor the McKees,

10 and he briefed me that they had subsequently separated

11 and he briefed me that his strategy always was that he

12 may have been able to penetrate this conspiracy by

13 taking advantage of that separation, and, consequently,

14 when he found out that they had separated and were both

15 living apart, he took the decision at that point to

16 approach both of them.

17 "Question: Obviously, I am sure you are aware there

18 is a fair amount of controversy about the strategy over

19 the McKees. Sadly, of course, Mr McBurney is unable to

20 answer for himself now.

21 "Answer: Yes.

22 "Question: What I am exercised about is to try to

23 get everybody's impressions as best I can of how he

24 acted. When you were briefed about that and his, as it

25 were, long-term, long-view strategy, how did that strike

1 you at the time?

2 "Answer: I had no difficulties with that.

3 "Question: So not so exceptionally mad as to be

4 impossible?

5 "Answer: No. He had to penetrate a conspiracy,

6 which is very, very difficult to do in terms of criminal

7 investigation, and, I mean, I think that his strategy

8 which was discussed with me was that, really, to break

9 a conspiracy, you have to penetrate it and get one of

10 the conspirators to come out and tell the truth about

11 it. I think that, certainly in my view, was a useful

12 strategy.

13 "Question: Okay. Had you worked with him before?

14 "Answer: Yes.

15 "Question: We have had the advantage of seeing

16 Mr Colville Stewart give evidence and, if I may say so,

17 the impression being given is that Mr McBurney is very

18 old school. Colville Stewart, new broom, very aware of

19 new policing techniques, investigative techniques and so

20 on, and making thorough records of everything. Would

21 that be a fair impression of the distinction between

22 those two?

23 "Answer: Yes. I think that is fair. Mr McBurney

24 was a very hardworking detective. He was a detective's

25 detective. You know, he headed up a region through many

1 years which encountered many, many murders and he headed

2 up a lot of very serious criminal investigations and he

3 brought a lot of people to book.

4 "So in terms of his commitment to work, I would have

5 no doubt about that.

6 "Question: Or his effectiveness?

7 "Answer: Absolutely. At times, maybe he took too

8 much on and he would have liked to have done things

9 himself."

10 He further stated at 124.

11 "Question: Now, Mr Underwood has already said to

12 you that it is important that the Panel get an

13 impression from people as to what they think about some

14 of the issues that this Panel has to decide. What was

15 your impression, between June 2000 and December 2000, as

16 to whether Mr McBurney was determined to nail

17 Mr Atkinson? What was your impression about that?

18 "Answer: I was under no doubt at all that

19 Mr McBurney was absolutely committed to getting

20 Atkinson. I have no doubt at all that's what he wanted

21 to do from the beginning, and when I was brought into

22 the Inquiry into 2000, he still had that same level of

23 commitment."

24 So that's the evidence you have about the character

25 of Mr McBurney, and it is all the more important, sir,

1 I just say in conclusion, when, unfortunately, of

2 course, you have not had the opportunity of seeing and

3 hearing and weighing up what Mr McBurney would say to

4 you in his evidence. That makes what other people say

5 about him, in our submission, all the more important.

6 In our submission, one would need to have very

7 cogent evidence, and I am not going to start quoting

8 I think it is the Doherty case as to the nature of the

9 allegations and the cogency of the evidence, but in our

10 submission one would need to have very cogent evidence

11 before one would draw any adverse conclusion concerning

12 the actions and investigations that Mr McBurney carried

13 out.

14 Those are our submissions

15 THE CHAIRMAN: Can you just deal with this point finally?

16 As we have just seen, K was appointed to the

17 investigation before McBurney's retirement.

18 MR ADAIR: That's right.

19 THE CHAIRMAN: Before his removal from the Inquiry, K told

20 us that he was put in charge of the tipping-off

21 investigation, did he not?

22 MR ADAIR: Yes.

23 THE CHAIRMAN: Now, do you want to say anything about

24 whether assigning that task to him was consistent or

25 inconsistent with the proposition that McBurney was

1 intent on stifling that investigation or was it neutral

2 in that respect?

3 MR ADAIR: It was absolutely inconsistent. If McBurney was

4 intent on stifling this investigation, why would he put

5 K in charge of it, one rhetorically asks?

6 THE CHAIRMAN: Thank you.

7 MR ADAIR: Thank you, sir.

8 MR McGUINNESS: Sir, I think it now falls on me. I will be

9 about an hour, sir. I don't know whether the Panel want

10 to take a quick break and allow me to run straight

11 through, or whether you prefer that I commence now?

12 THE CHAIRMAN: We will begin.

13 MR McGUINNESS: Could I take Mr Adair's lectern?

14 THE CHAIRMAN: You will bear in mind, I am sure,

15 Mr McGuinness, we have your written submissions. There

16 is no need to repeat them. Things you need to add, of

17 course you will.

18 Closing submissions by MR McGUINNESS

19 MR McGUINNESS: I am sure I will be guided by you, sir, if

20 you feel I am repeating my written submissions.

21 I had initially intended to be brief, but as matters

22 have transpired over the last number of days, I can't

23 now be as brief as I had initially intended to be.

24 I intend presenting my closing, sir, to deal with

25 the three chapters that appear to be relevant to

1 Sir Ronnie Flanagan and to which we were directed. That

2 is chapters 14-16. However, prior to addressing those

3 three particular chapters, I think it is important to

4 remind the Inquiry of the status of Sir Ronnie Flanagan

5 within these proceedings.

6 You will all be well aware he is a witness to the

7 Inquiry rather than a full participant. His

8 participation, and consequently that of his legal

9 representatives, have been, by necessity, given the

10 Inquiry's view on Sir Ronnie Flanagan's involvement,

11 limited. That has been set out in my written

12 submissions, but I do think it bears reiteration today,

13 sir

14 THE CHAIRMAN: I think we have it well in mind. We read it

15 quite a number of times in your submissions.

16 MR McGUINNESS: We say, sir, that it is not our intention to

17 deal, therefore, with anything other than his individual

18 role. We don't seek to comment on matters which are

19 outside of our participation. In particular, I suggest,

20 sir, that you have had the opportunity now to see and

21 hear Sir Ronnie Flanagan give evidence on two occasions.

22 I take this opportunity to thank the Inquiry for

23 allowing him to meet and address the very serious

24 allegations that have been made, we say, without

25 foundation and in an unacceptable manner, but we thank

1 the Inquiry for allowing him to meet those fairly.

2 I do wish to reiterate the danger of hindsight.

3 I think it is particularly important, when one views the

4 role of Sir Ronnie Flanagan in this Inquiry. It is

5 easy, sir, perhaps against the background of a sterile

6 chambers and 12 years later, to look at matters

7 retrospectively and see things as obvious without taking

8 account of context and the voluminous issues being dealt

9 with by Sir Ronnie Flanagan as Chief Constable in the

10 context of Northern Ireland on a daily basis at that

11 time.

12 We say that when assessing Sir Ronnie Flanagan's

13 actions, insofar as they are relevant to the terms of

14 reference, firstly, I adopt what Mr Adair has said about

15 the fact you must find an act or omission is wrongful,

16 but I go on to say you must assess his actions not --

17 again this is trampling over ground that has very

18 recently been trampled, but I say you must look at

19 what -- not at what you would have done, sir, in the

20 particular circumstances he met, but, rather, whether

21 his actions were within the band of reasonable actions

22 open to a Chief Constable.

23 I have contextualised, sir, in my written

24 submissions, the difficulties facing Sir Ronnie Flanagan

25 as Chief Constable. Hopefully, it is the last time

1 I repeat something that you may have read on a number of

2 occasions in the written submissions.

3 We say, as Chief Constable, he was Chief Constable

4 of a force against which there was a very specific risk

5 of terrorist threat. The politicisation of the police

6 force meant that his role as Chief Constable in

7 Northern Ireland was perhaps unique in British policing

8 terms at the time. The events that surrounded the

9 unhappy death of Mr Hamill, we point to the number of

10 other significant national events and, by "national"

11 I refer to province-wide, national events that were

12 going on.

13 There were two elections in May 1997. The IRA were

14 no longer on ceasefire. We have evidence from

15 Professor McEvoy and from Sir Ronnie Flanagan as to the

16 difficulties that had occurred following the reversal of

17 the decision in 1996 to allow the marches down the

18 Drumcree Road, the effect that had on the confidence of

19 one or both communities and the RUC, the fact that in

20 May 1997 this loomed large, sir, and with the attendant

21 difficulty of bringing the province again to

22 a standstill, as it had in 1996, and in July 1997, as

23 you will have heard from Mr Adair, two police officers

24 were murdered whilst walking the beat in Lurgan, that

25 being matters of fact which DCS McBurney was called upon

1 to deal with.

2 That context, and the almost unique position, I say,

3 in my respectful submission of the chief constable of

4 Northern Ireland at that time in those terms is perhaps

5 the reason why Mr McGrory accepts that and accepted this

6 when he cross-examined Sir Ronnie Flanagan, that

7 Sir Ronnie is a policeman of unparalleled experience,

8 and I submit, sir, that Sir Ronnie's expertise should be

9 taken into account when assessing his actions and his

10 particular observations as to the role of a chief police

11 officer.

12 Now, to turn to chapter 14 first, sir, that's the

13 tipping-off allegation, if page [1048] of the Inquiry

14 submission might be brought up, I say -- and if

15 paragraph 2.18 might be highlighted, I say there is

16 an error here and a comment has been inserted

17 inappropriately. I think Mr Underwood may agree that

18 that's, in fact, the case. The comment being:

19 "This speaks to the fear of the unwinding of the

20 Hobson prosecution if Reserve Constable Atkinson were

21 successfully prosecuted."

22 This deals, sir, with an NIO document which suggests

23 that the chief constable and Attorney General were

24 sensitive to what they saw as interference. I say that

25 comment cannot be appropriately attributed to the

1 document, because if one looks at the document at

2 [39453] --

3 MR UNDERWOOD: If it helps, I should make clear the

4 parenthesised words there were never intended to be

5 published. They were a reference in there for the

6 purposes of my team to cross-reference documents and

7 I accept what my friend says on this.

8 MR McGUINNESS: Perhaps if we could turn to the next

9 page and perhaps if we could go on, [39455], and if

10 paragraph 8 might be highlighted, one sees the

11 paragraph in its totality:

12 "As the Secretary of State has told the Hamill

13 family, she has no role in the prosecution process or

14 indeed in consideration of the disciplinary aspects of

15 the case. It would not appropriate for her to be

16 involved in these. The Secretary of State should note

17 that the chief constable and Attorney and DPP are very

18 sensitive to what they would see as any interference."

19 I say, sir, that speaks to interference in the role

20 of the prosecution process or, indeed, disciplinary

21 aspects of the case. Nowhere in this document is there

22 any reference to Reserve Constable Atkinson.

23 Why this is important is because British Irish

24 Rights Watch refer to this in their submission and use

25 this as corroborative evidence to suggest that that was,

1 in fact, the chief constable's intention and that, in

2 fact, and he was sensitive to the suggestion that any

3 interference might unwind the Hobson prosecution and

4 unveil, to paraphrase it, the identity of Reserve

5 Constable Atkinson.

6 Whilst I will deal with this more extensively

7 whenever I deal with the chapter 16 collusion, I say

8 there is simply no evidence from which an inference

9 might be drawn that there was any desire to repress the

10 allegation, that's the tipping-off allegation. I take

11 this opportunity to remind you of the evidence.

12 We say that the first time Sir Ronnie Flanagan was

13 made aware of the tipping-off allegation is

14 12th May 1997. We say that the context of that was that

15 he was made aware of the allegation by ACC Hall, but

16 that, in doing so, ACC Hall indicated that both the ICPC

17 were investigating it and that it was being dealt with

18 by Complaints and Discipline.

19 If Day 55, page 32 might be brought up, this is the

20 evidence of ACC Hall, at line 21:

21 "Answer: Well, I can't give you chapter and verse

22 12 years later out of a plethora of meetings, but they

23 would have held the same -- those officers would have

24 held views similar to my own, that anything touching

25 upon the integrity of a police officer or misbehaviour

1 or alleged criminal conduct could not be tolerated and

2 required rigorous investigation.

3 "They would have been satisfied, as was I, that the

4 matter was in the hands of the ICPC, the Independent

5 Commission for Police Complaints as part of the overall

6 supervision and investigation into the circumstances

7 touching upon the death of the late Robert Hamill ..."

8 So I say, sir, that the circumstances in which

9 Sir Ronnie Flanagan first became aware of this was on

10 12th May.

11 It has been suggested that it is -- I think the term

12 used was it is remarkable, or you might think it is

13 remarkable, that he was not told on 10th May in the

14 conversation between himself and Maynard McBurney of the

15 facts of the tipping-off allegation, but at this stage

16 it may be useful, sir, to remind you what Mr McBurney,

17 in fact, said about that conversation.

18 In his statement -- I will not take you to his

19 statement, because I intend to take you to the

20 interview, which is perhaps more comprehensive, he

21 indicates he can't be sure exactly what he told the

22 chief constable on the telephone call. However, he

23 would have been sure that the chief constable would have

24 been made aware of the allegation very quickly

25 afterwards.

1 Now, if one looks at the interview, it is the first

2 interview of Maynard McBurney. It is at page [114].

3 That's 4th May 2006 interview: one will see, sir -- you

4 will see, sir, that Mr McBurney indicates in the

5 substantive paragraph that one of the things he does --

6 he is talking through the events of 9th and 10th May.

7 He indicates that he was updating the chief constable:

8 "Stephens: Right, we'll stop there. You updated

9 the chief constable personally on that?

10 "McBurney: Yes.

11 "Stephens: Was that the normal way you dealt with

12 things?

13 "McBurney: No.

14 "Stephens: Right.

15 "McBurney: When I say I updated with the chief

16 constable, the chief constable rang the office and asked

17 for me, wanting to know what was going on, and so the

18 present state of the Inquiry.

19 "Stephens: So the chief had that hands-on approach

20 to it as well?

21 "McBurney: Yes. After that, ACC South updated

22 continuously -- this is all the one way now.

23 "Stephens: Right. So on 10th May then -- I just

24 want to clarify this situation -- on 10th May, the chief

25 constable was aware that you had evidence or you had a

1 statement about Atkinson, the Reserve Constable?

2 "McBurney: Let me finish this first. Continuous

3 liaison with Detective Chief ... again, in the

4 afternoon, updating the chief constable; again, in the

5 afternoon, updating ACC South and then the discussions

6 with the detective (several inaudible words), oh, yes.

7 That must be the notes there that you referred to.

8 Discussions with the detective inspector regarding

9 further arrests. The question you asked me, was the

10 chief constable and ACC aware of Atkinson?

11 "Stephens: Yes, and I want to know what advice you

12 got from them, really.

13 "McBurney: Oh. The ... I'm not sure just exactly

14 what I would have told ... because I was happy enough

15 with what I was doing and the course I was taking.

16 "Stephens: The reason I asked the question about

17 the ACC, and the chief and that sort of thing;

18 obviously, you'd given them a brief; the chief has

19 spoken to you and you say, 'What's going on? Tell me

20 what's happening?'

21 "McBurney: Yes.

22 "Stephens: Because of the ... because he's

23 obviously got the political overtones of that coming in

24 from [blank] who'd made the complaint, presumably.

25 "McBurney: Yes.

1 "Stephens: And you give him a brief and I just

2 wanted to know really what his thoughts were. If --

3 "McBurney: He was happy to wait for my views.

4 "Stephens: Right. But as such he would have been

5 told everything that you had at that stage, whether it

6 was the murder, the complaint that the ICPC were dealing

7 with, and the issues regarding the Reserve Constable.

8 "McBurney: I cannot be certain about that. We were

9 ... I was in possession of all that evidence -- or not

10 evidence -- but that knowledge at the time."

11 If I stop there, sir, that may well be the evidence

12 of Tracey Clarke or the knowledge of the statement of

13 Tracey Clarke, but not the evidence of the telephone

14 records. He goes on:

15 "I cannot be certain exactly what I said to him, or,

16 indeed, the ACC.

17 "Stephens: But you wouldn't have kept that sort of

18 thing from the Chief Constable, presumably.

19 "McBurney: Um ... he may just have asked about

20 arrests -- how many have we arrested? What were the

21 chances of success? Advise me when you have him charged

22 or if you can charge him or what the score is."

23 So what I say that suggests, sir, is that these are

24 all reasons why it may not be remarkable that

25 Mr McBurney did not tell the Chief Constable on 10th May

1 about the Tracey Clarke statement.

2 Now, Sir Ronnie Flanagan's evidence is that he

3 doesn't have a recollection of those telephone

4 conversations, but he is happy they occurred, but what

5 I say, sir -- so I don't put a positive case and say it

6 was not said to him, but what I say, sir, is that the

7 evidence of Mr McBurney is that it may not have been,

8 and in answer to the suggestion that it is remarkable

9 that it may not have been, the answer is that there were

10 a number of other issues that the Chief Constable may

11 have been concerned about at that time.

12 I have indicated, sir, that the matter was brought

13 to his attention on 12th May. The matter next

14 appears -- the direct evidence next appears that the

15 tipping-off allegation comes to his attention in

16 December 1997. That's regarding the reply to the

17 Secretary of State. I will deal with that when I deal

18 with the collusion issues.

19 As you all know, the final time that the matter

20 comes before -- the direct evidence is that the matter

21 comes before Sir Ronnie is in June 2000 and from there

22 on.

23 I submit, sir, that Sir Ronnie's -- that there is

24 nothing in any of these actions that suggests

25 an intention to repress evidence, that they reflect the

1 role of a Chief Constable and that that role is not one

2 of direct involvement in an investigation. It is not

3 a role to direct investigative strategy. It is, as

4 Sir Ronnie indicated yesterday, and I paraphrase him,

5 his role is not to micromanage an investigation, rather,

6 it is to ensure that the resources are available to

7 ensure that the investigation can progress

8 appropriately.

9 I say, sir, that it is significant that

10 Sir Ronnie Flanagan was not on notice during this

11 period -- there is no evidence that he was on notice,

12 that there were any issues with the investigation of the

13 tipping-off allegation. He was not on notice that were

14 any issues with the supervision of the ICPC -- the

15 supervision of the investigation by the ICPC.

16 In fact, when one looks at the second statement of

17 Mr Paul Donnelly, who was the Chairman of the ICPC, he

18 indicates:

19 "It was reasonable on the senior police officer's

20 behalf to have expected the linking of the Atkinson

21 allegation because the practice was quite normal."

22 I say this just fatally undermines the BIRW

23 suggestion that it was scandalous that no senior

24 officers sought to check that the ICPC were

25 investigating the matter, effectively because, sir, we

1 say the matter had been brought to Sir Ronnie's

2 attention. It had been brought in circumstances that he

3 had been told the ICPC were looking after the matter,

4 that Complaints and Discipline were investigating, and

5 that, I say, must be enough to satisfy a reasonable

6 chief constable that the investigation has been properly

7 investigated at that stage and the matter has been

8 appropriately dealt with.

9 BIRW go on, in my respectful submission, to misstate

10 the evidence when they refer to Sir Ronnie Flanagan,

11 when they refer to the letter from the police Ombudsman

12 at [14380]. They suggest that the Ombudsman openly

13 accused the RUC of seeking to stave off a public Inquiry

14 into the Robert Hamill case. However, that's not

15 correct, because if one looks at the documentation, what

16 Mr Mahaffey is, in fact, doing is he is asking

17 Sir Ronnie:

18 "I would be grateful if you could throw any light on

19 these matters in particular:

20 "1. Are you aware as to why no action was taken by

21 Mr McBurney relating these alibi witnesses ...

22 "2. Whether there were any other motivating factors

23 relating to the investigation of enquiries in

24 June 2000."

25 BIRW suggest this letter is a criticism; the purpose

1 of this letter is to criticise Sir Ronnie Flanagan and

2 his actions, whereas, in fact, it is nothing more than

3 a request, sir. So I say their evidence in that and

4 their written submission is inaccurate and is

5 inappropriate.

6 They also suggest in chapter 14, sir, that

7 Sir Ronnie would not take ownership of the Andrea McKee

8 incident that we have referred to latterly, if he

9 didn't, in fact, do it. However, we say that they

10 misunderstood the evidence and, in effect, my

11 submissions are in concurrence with what Mr Adair says,

12 in that we say that Sir Ronnie did not take

13 responsibility for the re-investigation. Rather, his

14 evidence is that he encouraged Mr McBurney to take steps

15 to try to prosecute a criminal within the ranks of the

16 RUC. A matter that, for example, Mr Langdon suggests

17 was Sir Ronnie's emphasised intention at all stages.

18 That can be seen for your note at Day 67, pages 32-33.

19 Sir Ronnie goes further to indicate that his course

20 of action was not resisted by DCS McBurney in any way.

21 Now, if I turn, sir, to the chapter dealing with the

22 ICPC, it is not the purpose of our submission to

23 criticise the ICPC or seek the Inquiry to make any

24 specific finding against them. Rather, to address what

25 is, in fact, the only potential criticism or inference

1 which has been identified within the Inquiry written

2 documentation.

3 As regards the ICPC, we say that the evidence

4 clearly establishes a number of important facts.

5 Firstly, we say it is important and the evidence

6 establishes that Sir Ronnie Flanagan instituted

7 a policy, whenever he became chief constable of the RUC,

8 of referring all public interest matters to the ICPC

9 under Article 8. This, we say, is corroborated by

10 Mr Paul Donnelly in his evidence, who, in fact, draws

11 a distinction between Sir Ronnie's view and his actions

12 and those of his predecessor in the post. He indicates

13 that Sir Ronnie was, on every occasion, prepared to

14 refer an Article 8 matter.

15 We say this is proactive and reflects, in our

16 submission, his desire for a rigorous and transparent

17 investigation.

18 In this case, sir, we suggest, and it has been

19 suggested in our written submissions, and I will not go

20 through why we suggest there was an Article 8 referral

21 under Article 8.1, but, even if there was not, sir, we

22 suggest that the practice of the ICPC was such that it

23 would have been reasonable for Sir Ronnie Flanagan to

24 assume that they were, in fact, investigating the

25 matters.

1 We say that in this submission the evidence of

2 Mr Donnelly is critical, because it establishes that,

3 once the allegation was established, he suggests it

4 should have come within the ambit of the complaint

5 investigation and that it was reasonable on the senior

6 officer's behalf to have assumed this linking, as it was

7 normal practice. That's found in paragraph 2 of his

8 second statement, which, unfortunately, I don't have

9 a reference number for, but for your reference that can

10 be found there.

11 So in effect, sir, I am saying that, even if the

12 ICPC were precluded in law from supervising the

13 tipping-off allegation, even if it were not right, that

14 there was an Article 8 referral, if you find as a matter

15 of law, sir, it was an Article 7 referral and the ICPC

16 could not have supervised the matter, we say that the

17 evidence of Mr Donnelly suggests a clear practice and

18 procedure on behalf of the ICPC. This practice and

19 procedure was such that it was reasonable for the senior

20 officers to conclude and to come to the conclusion that

21 the matter would be drawn in.

22 In one sense, this expectation was in the matter of

23 a legitimate expectation, whether legitimate or not,

24 because obviously one cannot have a legitimate

25 expectation of an unlawful act.

1 THE CHAIRMAN: An expectation cannot be legitimate in public

2 law terms unless it is a lawful expectation?

3 MR McGUINNESS: That's exactly what I accept, sir, but when

4 everyone is looking at the actions of the senior

5 officers and indicating, "Was it reasonable for them to

6 have had that expectation", the practice and procedure

7 was such at the time, sir, that we say that it was

8 reasonable for them to have had that expectation, and

9 the corollary of that being, therefore, that it would

10 not have been reasonable for Sir Ronnie Flanagan

11 personally to have taken it upon himself to ensure that

12 there ought -- that the ICPC were, in fact, supervising

13 the investigation, when their practice was the evidence

14 is to supervise such investigations.

15 Whenever one adds that to the fact that there is no

16 suggestion that Sir Ronnie was ever on any notice that

17 the ICPC were not, in fact, investigating this, we say

18 it is inconceivable that a chief constable would, or

19 should, second guess or verify the information being

20 given to him by his senior officers, that information

21 being given, we say, by ACC Hall on 12th May.

22 The representatives on behalf of Mr Mullan sought

23 to suggest in their written submissions that there is no

24 reason why Sir Ronnie Flanagan believed that the ICPC

25 were investigating the Atkinson allegations. We say

1 this is erroneous. Whilst they could have asked that

2 question of him themselves, we say it is clear from

3 Sir Ronnie's oral evidence that it is ACC Hall's

4 briefing that the ICPC were supervising the

5 investigation along with his policy of Article 8

6 referral, which deals with that point.

7 They go further and suggest that Mr Atkinson did not

8 see any of the documents substantiating an Article 8

9 referral. However, they, in our respectful submission,

10 sir, do not address -- Mr Mullan does not appear to

11 address the document at [15273]. That's the document

12 that refers to the previous -- where there is a tick

13 indicating there had been a previous referral. We say

14 that Mr Mullan's lack of awareness, for example, of

15 a conversation between Mr Murnaghan and ACC Hall does

16 not weaken the evidence that that conversation, in fact,

17 took place

18 THE CHAIRMAN: Well, the fact seems to be that both the ICPC

19 and the RUC did not properly understand the provisions

20 of Article 8. Where the fault lies precisely in each of

21 those organisations we perhaps don't need to consider.

22 MR McGUINNESS: That may be correct, sir.

23 BIRW suggest in paragraph 15, sir, that given the

24 ICPC's lack of independence and rigour, that the chief

25 constable should have used his powers to appoint

1 an officer from an outside force to investigate matters.

2 At this stage, sir, I think it bears reiteration

3 that the ICPC had greater powers than their equivalent

4 in England and Wales. If you remember the evidence,

5 they had the power to direct as well as supervise.

6 Whilst, when the Police Ombudsman was introduced, it

7 was, and still is, I understand, at the forefront of

8 thinking and procedure in police complaints, that it was

9 replaced does not mean that the ICPC were, therefore,

10 totally ineffective.

11 In one sense, one might say the ICPC was the only

12 show in town. The chief constable was constitutionally

13 obliged to engage with the ICPC because that was the

14 manner in which the Executive had decided that police

15 complaints were going to be pursued.

16 Now, if one turns -- if I turn, sir, to chapter 16,

17 that's titled "Collusion and Neglect". Of course,

18 collusion is not mentioned in the terms of reference, in

19 my respectful submission. However, as I have already

20 said, I adopt what Mr Adair has indicated as regards

21 a definition of "wrongful": unfair, unlawful, illegal.

22 I have, for my sins, gone to look to see what the Oxford

23 English dictionary says about collusion. As you will

24 know, sir, it indicates that collusion is a secret

25 understanding for a fraudulent purpose.

1 It is my submission, clearly, that collusion must

2 involve an intentional act or an intentional omission,

3 but in any event, it must intend to have a collusive

4 purpose, unlike, perhaps, discrimination, which can be

5 indirect and unwitting.

6 THE CHAIRMAN: Collusion would obviously come under the

7 umbrella of wrongful, wouldn't it?

8 MR McGUINNESS: Yes, I think that's probably correct, sir.

9 THE CHAIRMAN: Does more need to be said about that?

10 MR McGUINNESS: No, sir, I will move on.

11 At this stage, I have to deal with the suggestions

12 made by Mr McGrory last Monday and Tuesday. We say that

13 the manner in which the allegations were made was

14 something of an ambush. We say, if you look at his

15 written submissions at paragraph 17, which is at

16 page [1278], three scenarios are suggested. In those

17 scenarios -- if that could be brought up, [1278] -- at

18 paragraph 17 he indicates:

19 "If the Panel is persuaded that DCS McBurney was

20 guilty of the deliberate protection of Reserve

21 Constable Atkinson, then it must consider three

22 possibilities that directly concern the chief constable:

23 either he (i) acted alone in defiance of his superiors",

24 that's Mr McBurney, "(ii) he felt encouraged by their

25 apparent disinterest to behave in the way he did", so

1 again he is referring to the disinterest of the

2 superiors, "or (iii) he was acting on direct

3 instructions."

4 Having referred in the two preceding paragraphs to

5 "superiors", plural, the natural reading of that was

6 that he was acting on the direct instructions of his

7 superiors.

8 Now at no stage, sir, was the allegation stitched

9 together to portray an allegation in the written

10 submissions, we say, against Sir Ronnie Flanagan alone.

11 However, we now know from his oral submissions on Day 71

12 he indicates the nod could only have come from

13 Sir Ronnie Flanagan.

14 We say you might be rightly concerned that this is

15 a most serious allegation to make. To do so at this

16 stage in the proceedings is procedurally unfair and

17 might be regarded as outrageous. Lest there be any

18 doubt, it is clear, sir, that those are refuted in their

19 entirety.

20 Mr McGrory asks you to draw inferences and attach

21 them, we say, to no direct evidence.

22 THE CHAIRMAN: Mr McGuinness, it may have been unfortunate

23 that matters were not put to Sir Ronnie which should

24 have been, but in the event, Sir Ronnie has suffered no

25 unfairness, because arrangements were made that he could

1 give evidence again and deal with these matters.

2 MR McGUINNESS: I say that's not right, sir. I say where

3 the unfairness against Sir Ronnie may attract is that,

4 given Sir Ronnie Flanagan has had very limited

5 participation in this Inquiry, given the fact that the

6 allegation that is now made, albeit it is made in

7 language that does not even meet the standard of

8 proof -- it is allegations that may be, and there is use

9 of the word "speculate" -- we say it is unacceptable,

10 because essentially now every action of Mr McBurney, if

11 Mr McGrory's submission is to be treated appropriately,

12 must be looked at through the prism of whether

13 Sir Ronnie Flanagan had any guiding hand in that action.

14 Now, why I say it is then potentially unfair,

15 despite the fact that Sir Ronnie Flanagan has had the

16 opportunity to deny it and to absolutely refute those

17 allegations, is that one might have expected, sir, at

18 that stage -- had this matter been raised at the start,

19 undoubtedly Sir Ronnie Flanagan would have been made

20 a full participant, or at the very least --

21 THE CHAIRMAN: Raised at the start by whom?

22 MR McGUINNESS: By Mr McGrory.

23 THE CHAIRMAN: Forgive me. Mr Underwood opened the various

24 matters. Matters then emerged as there was

25 cross-examination about them. There was no obligation

1 on parties to say, "Well, I want to make an allegation

2 about such and such at the outset". Let's get on to the

3 next point, shall we?

4 MR McGUINNESS: Perhaps I will put in in a different way,

5 sir. We have not had the opportunity to attend the

6 evidence that was given about Mr McBurney and to

7 consider all the documentation that refers to

8 Mr McBurney and to cross-examine, with particular

9 reference to Sir Ronnie Flanagan, any of those

10 witnesses. That's where I say, sir, there may be

11 potential unfairness. I do not put it any higher, but

12 I say if it is right or if the suggestion is to be

13 treated appropriately, that Sir Ronnie Flanagan had

14 a guiding hand, then he deserves not only to answer that

15 but to put questions to any witnesses that are relevant

16 and have access to that information.


18 MR McGUINNESS: We say that the allegations made on behalf

19 of the family are inherently contradictory, incorrect

20 and without any evidential basis, although we don't say

21 this makes it any more acceptable to raise them at this

22 very late stage. We say the contradiction can most

23 clearly be seen in the approach to DCS McBurney who is

24 criticised as guilty of deliberate protection of Reserve

25 Constable Atkinson in the written and oral closings.

1 However -- Mr Adair touched on this -- as Mr McGrory

2 was unable to explain why Mr McBurney would tell so many

3 people about the tipping-off allegation, he has sought

4 to rehabilitate Mr McBurney to an extent to explain his

5 actions that may have set out with the most upright

6 intention, but that the unforeseeable decision of the

7 ICPC allowed him to subvert the investigation.

8 I think that's the submission Mr McGrory was

9 effectively making. He was saying, if he started off

10 with an honest and upright intention -- he was presented

11 with an opportunity. This opportunity was the ICPC

12 indicating they were not going to supervise the

13 tipping-off. I say, sir, that would have been

14 unforeseeable whenever he was first appointed to the

15 investigation, and, correspondingly, that would have

16 been unforeseeable to any guiding hand, if there was

17 a guiding hand, and if that guiding hand had been acting

18 from 10th May, the guiding hand would not have known,

19 nor would Mr McBurney have known, that the ICPC would

20 have taken that course.

21 We say that this is one example of the twists and

22 turns that are required to try to make the evidence fit

23 the theory, because that's what we say effectively

24 Mr McGrory's submissions amount to.

25 We don't accept the proposition that

1 Sir Ronnie Flanagan's reputation has in any way been

2 damaged by his evidence. Rather, we suggest that his

3 character has expressly been put into question by

4 Mr McGrory and that correspondingly you ought to take

5 into account his good character, sir.

6 We say that -- it is my submission, sir, that

7 Mr McGrory's submissions take what are essentially

8 a series of unremarkable pieces of evidence and use them

9 to suggest the most extreme and inherently improbable

10 inferences, that -- whenever he applies this to a lack

11 of any direct evidence and attempts to infer a sinister

12 intent.

13 What I want to do, sir, as a result of that, is to

14 address the evidence one final time. I say that it is

15 clear the evidence going to Sir Ronnie Flanagan was that

16 he kept himself up-to-date with all the pertinent

17 issues, not least via weekly briefings via regional

18 ACCs. This is against the background of his being head

19 of one of the largest police forces in the world and

20 against a background of terrorism and significant

21 political tension and unrest.

22 We say it is not correct that Sir Ronnie Flanagan

23 has been less than candid with the Inquiry, but what we

24 do ask you to do is take cognisance that

25 Sir Ronnie Flanagan, like all of the witnesses to the

1 Inquiry, are given their evidence at a 12-year remove.

2 To some witnesses the events -- the unhappy events of

3 Robert Hamill's death may very well have been the most

4 significant events in their lives. To other witnesses

5 to the Inquiry the unhappy events of Robert Hamill's

6 death may be one of a number of significant and serious

7 incidents, and I ask you to take into account, sir, the

8 fact that that's exactly the position we say with

9 Sir Ronnie Flanagan. This was undoubtedly a serious,

10 significant event, but in his case it was one of

11 a number of significant, serious events.

12 Much of the evidence has been informed by the

13 existence of contemporaneous documentation, rather than

14 first-hand recollection. We say that documentation,

15 whilst it is obviously of evidential assistance, ought

16 not to be, and I am confident you will not elevate it to

17 any unimpeachable status.

18 It is, sir, in the human psyche and character to err

19 and make mistakes, and that must not be forgotten or

20 cast aside whenever one weighs the evidence. The lack

21 of candour appears to attract, in my respectful

22 submission, or the submission that there is a lack of

23 candour attracts to two documents. Those two documents

24 are the document of Sir xxxxxxxxx, which is the

25 meeting of 9th June, and the memorandum relating to the

1 meeting with Mr Anthony Langdon.

2 I have a number of points about both documents. It

3 must be remembered that neither of these documents

4 purport to be verbatim notes of the conversation. They

5 are nothing more than memoranda. Mr Langdon, in fact,

6 accepts that he was paraphrasing Sir Ronnie Flanagan on

7 occasion. That's found in his evidence at Day --

8 I apologise, sir. It is Day 67, page 26. If that could

9 be brought up. That's 7-10.

10 "Question: Now, am I right to say that these

11 comments are paraphrasing what Sir Ronnie has said?

12 They are not in inverted commas and, for example --

13 "Answer: No. Absolutely."

14 The second point I make about the documents is they

15 are not contemporaneous notes, both documents having

16 been made some time later.

17 THE CHAIRMAN: You made that point already and we have it.

18 Yes?

19 MR McGUINNESS: Both documents contain subjective

20 impressions and evaluations. So, for example, the

21 reference in the document, Sir xxxxxxxxxx's memo,

22 that suggests Sir Ronnie Flanagan, which is denied,

23 would have dismissed Reserve Constable Atkinson at the

24 Permanent Undersecretary's request, that's paraphrased

25 by the word "implied". So essentially what we have is

1 Sir xxxxxxlooking at a nuance and obtaining this

2 objective impression.

3 I don't submit, sir, that either of the authors of

4 those documents has any improper motivation for

5 recording the impressions as they did.

6 That Mr Langdon, who gave evidence, doesn't have

7 a complete recollection of the meeting in my respectful

8 submission is not surprising, given the ten-year remove,

9 and, therefore, we are left with the accuracy of his

10 notes. That, in my respectful submission, was the tenet

11 of the evidence of Mr Langdon, that he had no reason to

12 dispute the accuracy of his notes.

13 He appears to have had two recollections. The first

14 recollection is to do with the cradling movement, which

15 I deal with in due course, and I don't say is

16 particularly germane. The second recollection is

17 effectively Sir Ronnie Flanagan was indicating that he

18 felt his force was being unfairly pilloried. Aside from

19 that Mr Langdon said before you, "I have no reason to

20 doubt the accuracy of my notes", except I say what you

21 must take into account is that the notes he accepts are

22 inaccurate in two places. So if his evidence is,

23 "I have no reason to doubt the accuracy of my note", you

24 must take into account the fact that he then accepts

25 that his note is not completely accurate.

1 The two places I suggest the note is inaccurate is

2 he accepts -- again it is at day 67, page 31. Firstly,

3 you will remember, sir, -- I have brought myself on

4 slightly further. I will deal with this in just one

5 moment. You will remember, sir, the difference between

6 the word in inverted commas "gem" that Mr Langdon refers

7 to. Sir Ronnie indicates he would not use a word like

8 "gem". He would use "gen". Mr Langdon accepted that.

9 Secondly, at paragraph 7, which Mr Adair had

10 referred you to earlier, there is a comment in brackets,

11 and it is suggested to him at page 31, 19:

12 "Question: So is it likely that whenever you refer

13 to the chief constable suggesting that he had 'pushed

14 and pushed' the information -- the more recent

15 information which was provided to the Hamill family

16 I~understand would have been in and round 7th June the

17 decision was taken not to have a coroner's inquest.

18 Is it not, therefore, more likely that that's what

19 precipitated any reaction from the chief constable?

20 Answer: The comment in -- I haven't got it on the

21 screen -- "where the 'gem' comes, the comment that I make

22 in brackets there might very well have been inaccurate

23 and the information that he was talking about might have

24 been other information I agree, but it must have had

25 something to do with the action that the coroner took

1 when the inquest was aborted."

2 So that's how I read it all.


4 MR McGUINNESS: Effectively this is a note that is not

5 without inaccuracy. The comments in paragraph 3 of that

6 particular note, in particular the cradling action

7 issue, we say this is a subjective interpretation. It

8 is Mr Langdon's error and nuance; that what

9 Sir Ronnie Flanagan was, in fact, saying was that -- and

10 this is the evidence that he gave -- he was not saying

11 that it was a member of the family who had cradled the

12 head, but it could have been anyone at the scene. It

13 could have been a police officer or a civilian.

14 At the time he gave his evidence, sir, it is clear,

15 and this is found at Day 61, page 256, line 16, where he

16 says:

17 "I think that's a quite disgraceful record of the

18 conversation that we had. What was suggested to me --

19 I remember being absolutely shocked when Robert Hamill

20 died, because my belief was that he was progressing well

21 and that he was not at risk of dying. In asking

22 people -- and I think it may well have been in

23 a conversation with Maynard McBurney -- there would have

24 been a general discussion that sometimes people, not

25 specifically the family, but even at the scene who would

1 cradle a person, but to suggest that Robert Hamill's

2 death was due to anything other than the beating he

3 received at the hand of his assailants is absolutely

4 disgraceful."

5 What he is saying there is this is an inappropriate

6 record and he is also indicating that the source of his

7 information as to any oxygen starvation or cradling

8 would have come from his discussions from others.

9 That is in effect what he said yesterday, sir, when

10 he gave evidence, and he indicated when it was put to

11 him again as regards the Langdon allegations that any

12 conversation he would have had would be in context of

13 others suggesting something. We say that his evidence

14 yesterday was on all fours with his evidence on

15 10th May, and that is clearly that any evidence he had

16 been given had been suggested to him by other people.

17 We say that the second recollection of Mr Langdon is

18 significant, that is, that Sir Ronnie's drift was that

19 his force was being unfairly pilloried. For your note

20 that's at Day 67, 22, 20-25.

21 I ask you to consider, sir, that it may well be that

22 this is the -- that it was clearly Sir Ronnie Flanagan's

23 intention -- it was clearly his expressed view at the

24 time that his force was being unfairly pilloried.

25 We ask you to consider whether it is possible or

1 likely that Mr Langdon took this expression "unfairly

2 pilloried" and attributed it to the actions of the

3 family, and that that's why he has quoted as he has at

4 paragraph 3, because what's clear from the memoranda of

5 both Sir xxxxxxxxx and Mr Langdon was Sir Ronnie

6 recognised Mr Hamill was, in fact, murdered. This was

7 a murder, despite medical queries or suggestions to the

8 contrary.

9 It is further clear he would not tolerate the

10 presence of such an officer guilty of such an offence

11 within his police force. At document [39693], if that

12 could be brought up, and if the initial paragraph might

13 be highlighted, Mr Langdon's record is:

14 "If there were anything in these suspicions, then he

15 would do whatever was necessary; he did not want people

16 like that within a million miles of his force, but

17 nothing had happened to disturb his view of the incident

18 itself ..."

19 So his Ronnie's view at that stage was his force was

20 being unfairly pilloried, but this was a murder and he

21 didn't want anyone who had truc with that within

22 a million miles of his force. I say this expressed

23 intent was inconsistent with any suggestion he may have

24 attempted to repress evidence in any way.

25 The effect of the later allegations appear to be

1 that they suggest that Sir Ronnie has not been candid in

2 these two documents. They go on to say that his failure

3 to recollection 12 years later the meeting on 12th May

4 allows you to draw, in my respectful submission, a most

5 absurd inference. In a sense, sir, you identified it in

6 that there is not any direct evidence. We don't accept

7 this is a lie, but if it were, to use that on its own

8 without any further evidence is nothing more than

9 speculation. It would be nothing more than an attempt

10 to build bricks out of straw where there is perhaps not

11 even straw present.

12 I say that other matters that must be taken into

13 account when you address Sir Ronnie's motivation and his

14 intentions are, firstly, that it is not improper for

15 a chief constable to be defensive of the reputation of

16 his organisation. There have been suggestions in some

17 of the memos that Sir Ronnie Flanagan was defensive.

18 I say it is not improper to be defensive. What's clear

19 in both the memos is that Sir Ronnie Flanagan was not

20 afraid of there being a public inquiry. So he was

21 defensive of his force, but he was not defensive in

22 a manner where he was saying, "There ought not and never

23 should be a public inquiry".

24 When alerted to any issue that required his input,

25 Sir Ronnie acted decisively, and his motivation, in my

1 submission, was clear at all times. That was to ensure

2 transparent, effective investigation which would enjoy

3 the confidence of both communities in Northern Ireland.

4 I say this can be seen in his actions in June 2000.

5 Having been contacted by DCS McBurney, he springs into

6 action, if I can use that terminology. He contacts the

7 then and now Director of Public Prosecutions and the


9 It is more clearly perhaps evidenced in the evidence

10 of Mr David Wood from the Police Ombudsman's

11 organisation, a man who indicates in his evidence that

12 he worked frequently with Sir Ronnie Flanagan and who

13 indicates that Sir Ronnie took the Ombudsman's concerns

14 seriously, was proactive -- and this is at page 16 of

15 Mr Woods' evidence; unfortunately I don't have the

16 day -- and could not have done more to meet them. This

17 is referring to replacing Mr McBurney with

18 Colville Stewart.

19 That action in itself, sir, is significant. The

20 fact that Sir Ronnie replaced Mr McBurney with

21 Colville Stewart within 24 hours of the Ombudsman

22 raising it as an issue I say is a significant, positive

23 action that portrays his motivation, because it is clear

24 that this is a matter that of itself might draw

25 criticism to the organisation, the fact that the Chief

1 Constable is replacing an investigating officer in what

2 is a controversial -- in what is a case that has

3 attracted a great deal of publicity.

4 The other issue that you may consider whenever you

5 consider the actions of Sir Ronnie in replacing

6 Mr McBurney so swiftly is that this is clearly not --

7 this is not an action that would necessarily reflect

8 positively on Mr McBurney, and it may be portrayed in

9 certain sections as a slight or a negative slur.

10 If there were any suggestion that there was any

11 collusion between Sir Ronnie Flanagan and Mr McBurney,

12 well, this action of itself, the promptness and the

13 swiftness by which Sir Ronnie dealt with this in my

14 respectful submission can lead to no other inference

15 except that it was his intention at all times to ensure

16 an effective, transparent investigation, and that he had

17 no fear from replacing Mr McBurney, if there had been,

18 which we deny, any collusive purpose.

19 The evidence yesterday, sir, and the written

20 submissions from the BIRW refer to matters which are, in

21 my respectful submission, not evidence before this

22 Inquiry, and that's really the evidence about

23 Rosemary Nelson and the evidence about Colin Duffy.

24 British Irish Rights Watch raised the issue initially in

25 their written submissions about a dispute between

1 Sir Ronnie Flanagan and Mr Dato' Param Cumaraswamy, who

2 was at that time a UN rapporteur.

3 I say that's not evidence before this Inquiry and

4 ought not to be taken into account by the Inquiry, but

5 in any event that can be dealt with, in my respectful

6 submission, because the comment attributed to Sir Ronnie

7 by BIRW is inaccurate. The UN rapporteur removed the

8 comment from his report following Sir Ronnie having

9 denied it. The evidence heard by the Rosemary Nelson

10 Inquiry suggests that the comment in the draft report

11 was not supported by the contemporaneous note of the

12 meeting, and that, whatever comment was made, Sir Ronnie

13 was not even present in the room at the time.

14 So it is easy, in my respectful submission, in

15 a written submission to refer to a matter in another

16 inquiry and to suggest that it can be used to draw

17 a pejorative inference against someone, but really I ask

18 all of you to confine yourselves to the evidence which

19 is before the Inquiry.

20 Again I objected yesterday to some of the questions

21 being put to Sir Ronnie on the basis, amongst other

22 things, we had not been clearly alerted to them.

23 As regards Rosemary Nelson and Colin Duffy I don't

24 seek to rehearse all of the evidence in the

25 Rosemary Nelson Inquiry. That Rosemary Nelson was

1 a solicitor who acted for Republicans -- suspected

2 Republicans, that's well-known. That there were

3 a plethora of other solicitors in Northern Ireland who

4 acted for Republicans, that's also well-known. Saying

5 that does not take anyone any further.

6 Mr Duffy was charged initially with the murder of

7 two constables in July 2007 -- July 1997, which, of

8 course, is after this matter. The fact that

9 Rosemary Nelson wrote a letter of complaint on

10 7th May 1997, in my respectful submission her connection

11 with Colin Duffy doesn't take us any further as regards

12 any motivation

13 THE CHAIRMAN: Well, I see the time. We will adjourn now

14 until 2.05.

15 Mr McGuinness, you told us you would be about

16 an hour. I think you have had something like

17 three-quarters of an hour already. You are not even

18 halfway through your pages.

19 MR McGUINNESS: I am three-quarters of the way through, sir.

20 THE CHAIRMAN: You will be able to use the adjournment to

21 cut down what you have to say. Very well. 2.05.

22 (1.05 pm)

23 (The luncheon adjournment)



1 I N D E X


Closing submissions by MR ADAIR .................. 1
4 (cont.)

5 Closing submissions by MR McGUINNESS ............. 62






















Associated Evidence

Reference Title Description
HOLMES M45 (02395)
HOLMES M48 (02416)
Letter PONI to Sir Ronnie Flanagan (14379)
RUC Referral of Complaint (15273)
Memorandum - Simon Rogers.(39453)
Letter re. Robert Hamill - meeting with Chief Constable (39623)
Note - Anthony Langdon (39692)
Statement Colin Hull (60808)
Report DCS McBurney (09028)