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Transcript (Morning Session)

Hearing: 17th December 2009, day 77

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PUBLIC INQUIRY INTO THE DEATH OF

ROBERT HAMILL

 

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Held at:

Interpoint

20-24 York Street

Belfast

 

on Thursday, 17th December 2009

commencing at 10.30 am

 

Day 77

 

 

 

1 Thursday, 17th December 2009

2 (10.30 am)

3 Closing submissions by MS DINSMORE

4 MS DINSMORE: Good morning, sir. I think in all probability

5 this is our last day of sitting, so before I start on

6 the substantive matters in relation to my submissions

7 this morning I would just like to say a few words.

8 First is that, at all times during the course of the

9 entire year, there is no doubt that the great tragedy

10 that befell the Hamill family has been in the forefront

11 of everyone's minds and that one's thoughts and feelings

12 go with each and every family member, especially when it

13 comes to this time of the year. To lose one's son or

14 lose one's brother, and particularly in very tragic

15 circumstances, is a heavy burden which no family should

16 ever be asked to bear.

17 I respectfully suggest that in the last year we have

18 had an opportunity with enormous diligence on the part

19 of this Inquiry to endeavour to get to the very truth

20 about what happened. One hopes that that in some small

21 measure can make the burden perhaps, perhaps, a little

22 easier to bear.

23 So anything I say this morning I say in the context

24 that none of us must lose sight of the precious family

25 who have lost a precious individual. We have heard talk


1
1 during the course of the submissions about the drive and

2 purposeful drive of the family members to achieve the

3 end of us all participating in this exercise. I would

4 be amazed if there was anyone in this chamber who was

5 not in total admiration of that.

6 Then if I move to the last year, and my colleagues

7 have expressed their thanks to the Inquiry team.

8 I would wish to underscore that thanks and appreciation,

9 not just, of course, the stars, such as Mr Underwood,

10 but the wider team, the unsung heroes behind the scenes,

11 the administrative staff, the computer staff and the

12 amount of professionalism, cooperation, thoughtfulness

13 and the very pleasant and courteous helpful approach

14 that each and every individual which my team and

15 I particularly personally have encountered has been

16 a very uplifting experience. The thoroughness of the

17 team has made our professional duty and every

18 professional here -- it has eased our gross burden

19 greatly.

20 I should also say in addition to the technical team

21 Miss Kemish's recruiting expertise clearly knew no

22 bounds, and I am not just referring to your good self,

23 Mr Chair, on that. I refer also to the technical

24 computer staff that have educated me beyond realms that

25 my son thought was possible and the day-to-day workings.


2
1 Finally, I don't think it is just because I use

2 a walking stick that I have got exceptionally courteous

3 assistance at all times from every member of staff

4 employed in the Interpoint system. I have never come

5 in, since 13th January, to anyone having an unpleasant

6 air towards me. That, believe me, if you are

7 a practitioner at the Northern Ireland Bar, is quite

8 an exceptional experience, particularly over the course

9 of a year. So the workings professionally and

10 personally, I have to say -- and it is no small measure

11 also to your good self, Mr Chair, and your very learned

12 colleagues. This has been both personally and

13 professionally a privilege to have been engaged in.

14 THE CHAIRMAN: Thank you.

15 MS DINSMORE: If I then move to what my remit is today. As

16 everyone knows, I appear on behalf of both Eleanor and

17 Robert Atkinson. It is quite clear that there are two

18 completely distinct issues. There is Robert Atkinson

19 the police officer, who was a member of the Land Rover

20 crew and all that that entailed. I adopt much of what

21 my learned colleague Mr Adair says in relation to the

22 actions of the Land Rover crew on that evening.

23 Then, secondly, there is my brief in relation to

24 Mr Robert Atkinson and Eleanor Atkinson, against whom

25 the gravest of allegations have been levied. That is


3
1 what has become known in this Inquiry as the tip-off.

2 I should say at the very outset, and I concur

3 totally with Mr Underwood in the proper approach to the

4 thinking that each of you bring to consideration of the

5 criticisms, that the appropriate approach is: the more

6 grave a criticism is, the more cogent the evidence has

7 been.

8 Each of you will be only too aware that the gravity

9 for my clients of the criticisms being levied, both

10 within the realms of his contact as an operational

11 policeman, as part of the Land Rover crew, and,

12 secondly, as the person who has been labelled the bad

13 apple, the rotten apple, within the police force, that

14 has given rise to devastation of this man's professional

15 life for decades and decades. The gravity of that

16 allegation is a matter which no doubt will be at the

17 forefront of your minds when you consider: how cogent is

18 the real evidence, the hard evidence? Where is my

19 thinking and reaction to the witnesses taking me?

20 When one thinks how one is going to measure that,

21 one thinks, "I do it bearing in mind exactly what has

22 been alleged".

23 How I am going to break matters down this morning,

24 and I hopefully will not delay you any more than is

25 necessary, I intend -- what I have done is I have looked


4
1 at -- you have our closing. I respectfully suggest on

2 the pertinent issues that they are detailed. I have

3 absolutely no doubt that there is little to be served by

4 me repeating the contents of those.

5 So what I have done, with the assistance of

6 Mr Mallon here, is an audit of the closing submissions

7 of each and every participant. So in the first half of

8 my address to you what I am doing is looking at and

9 exploring each criticism that has been made of my client

10 in those composite closings, and then, on the latter

11 half of this morning, and I would hope -- please don't

12 keep me to it -- that an hour should finish matters,

13 I will deal with what everyone says, without saying it,

14 is the elephant in the room, the tip-off, and I will

15 deal with why on earth would somebody plead guilty to

16 conspiracy. I will deal with what weight you may be

17 minded to put on that.

18 An audit of the closing submissions has given

19 rise -- if we park the tip-off, the audit of the closing

20 submissions has given rise to my identifying essentially

21 eight headings. Many of these have been covered by

22 Mr Adair and I don't intend to repeat Mr Adair's

23 submissions. Quite clearly, your good selves are well

24 able to see where those matters apply every bit as much

25 to me as the other three members in the Land Rover.


5
1 There is the warning.

2 There is what could be seen from the Land Rover by

3 my client.

4 There is the issue about the knowledge of the

5 conversation which took place at the Land Rover with

6 Stacey Bridgett and Dean Forbes.

7 Fourthly, there is the issue of the pulling of

8 Constable Neill out of the Land Rover.

9 Fifthly, there is the issue of when Robert Hamill

10 and D fell to the ground, the attack itself.

11 Sixthly, there are the allegations regarding failure

12 to act or respond appropriately.

13 Seventhly, the making of the statement and the

14 alleged omissions therein.

15 Finally, there is the allegation that

16 Mr Robert Atkinson was a bigot and perhaps on the

17 Loyalist side, which is an allegation to which there is

18 very great exception taken.

19 I have said to you the second half of my submissions

20 will deal entirely with the allegation that either

21 Eleanor or Robert Atkinson telephoned

22 Allister Hanvey/the Hanvey household with the intention

23 of and, in fact, allegedly advising Allister Hanvey to

24 get rid of his clothes, and the later allegation then

25 that I have already referred to, that each of them


6
1 entered into a conspiracy with the intention of, and the

2 de facto consequence of, perverting the course of

3 justice.

4 At all times, each and every aspect of that is and

5 has been denied by my clients and each of them. We will

6 look in some detail as to why I will urge upon you that,

7 when one has had the benefit, the very great benefit, of

8 being here and seeing each and every witness and seeing

9 them being challenged, that the evidence will not lead

10 to a justification that there is truth in any part of

11 those allegations.

12 Finally, before I then move to the substance,

13 I would just wish to make a brief comment apropos the

14 paper which has been furnished by the British Irish

15 Rights Watch and the Committee for the Administration of

16 Justice. I have furnished a brief paper to Mr Underwood

17 in relation to that matter. I am not intending to go

18 through the very many contentions which they have

19 raised.

20 What I would say, and again I have complete

21 confidence in leaving it in your good offices for the

22 appropriate consideration, I would respectfully suggest

23 that very many of the contentions made in that

24 submission are entirely without foundation. They have

25 no evidential basis and are, regretfully, contentious.


7
1 It is a concern which we may well have with the

2 potential of giving rise to a subjective, polarised

3 consideration and a polarised consideration is something

4 that this Inquiry has striven manfully, and in my view

5 succeeded, in avoiding.

6 That submission is peppered with emotive

7 generalisations and they are not supported, I would say

8 to you, by the evidence which has been produced to the

9 Inquiry.

10 Apropos particular aspects relating to my client,

11 they have been furnished in writing to the Inquiry team

12 and I adopt the same approach apropos as that by my

13 learned friend Mr Emmerson.

14 So if I turn, firstly, to the criticism regarding

15 the warning, on doing an audit -- and I can do this in

16 two ways, Mr Chair, and will be somewhat in your hands.

17 I have the reference from each of these submissions on

18 each of these headings. I am quite content to give you

19 the references and leave them to your good selves to

20 consider. I do also have a paper prepared that I can

21 read out what each of them say, but I do not personally

22 consider that would be helpful in outline. I am not

23 addressing a transcript. I am addressing the Panel.

24 I am addressing a Panel who has all the papers and who

25 clearly has the mastery at really quite an exceptional


8
1 level for consideration of those. As I am not

2 addressing a transcript, I don't consider it necessary

3 for me to outline what each reference gives.

4 THE CHAIRMAN: We agree. If you give us the references,

5 that will be helpful and that will suffice.

6 MS DINSMORE: I certainly will.

7 The reference first in relation to the warning.

8 First of all, as I say, I adopt the serving and retired

9 police officers' views that are put out in the composite

10 closing. You will find those at part 5, page 91.

11 The PSNI on this point you will find at part 5,

12 pages 119 and 120.

13 The submission on behalf of Mr Marc Hobson you will

14 find at part 6, page 333.

15 So what I say, when each of you look at the

16 references in those submissions, I would then ask you to

17 consider Mr Atkinson's evidence. I suggest to you that

18 when you do that, that that evidence will show that

19 there is no criticism to be levied of Mr Atkinson.

20 You find Mr Atkinson's evidence on Day 47 at

21 pages 56-59 inclusive and on page 161 we deal with these

22 issues.

23 To sum up then, Mr Atkinson's answer to those

24 considerations is that it is quite clear the evidence

25 shows that Mr Atkinson first became aware of


9
1 Thomas Mallon as he was sitting behind the observer

2 looking forward. He became aware that someone came

3 across in front of the Land Rover. At the same time,

4 two males were coming up High Street on the left-hand

5 side of the Land Rover and they spoke to the man. The

6 observer opened her door. Mr Atkinson did not realise

7 that any warning had been given to the Land Rover crew.

8 That had to be repeated to him.

9 Members, you have all sat in the Land Rover. You

10 can bring your own judgment about that as to how, in

11 fact, we would say that could well have been the

12 position. Mr Atkinson makes no contention about where

13 the Land Rover was parked. It was parked at LR3 when

14 the man walked by. LR3 is near enough to where the

15 Land Rover ended up. You will find that Reserve

16 Constable Atkinson told you that at page 57 of his

17 transcript. It is page 56 you will find he did not

18 realise anything was said. He recalls Reserve

19 Constable Cornett saying something to them at page 58.

20 He did not recall the two youths approaching the

21 Land Rover and talking to the crew. You will find that

22 at page 59. He did not actually hear the warning or the

23 shouting for help when he was inside.

24 So that is the evidence you have before you

25 regarding Mr Atkinson's consideration of the warning.


10
1 Then issue number 2 is: what could be seen from the

2 Land Rover? As I have said to you, I refer you to the

3 position in which Mr Atkinson was placed in the

4 Land Rover, up behind the observer in the back. P40 was

5 much closer to any rear slats if they were open.

6 Mr Atkinson -- I take it, members of the Panel, you have

7 sat in the Land Rover on more than one occasion.

8 Therefore, that is the best evidence, I think, before

9 this Inquiry, the experience that each of you have had

10 of sitting there. It is not in dispute where

11 Mr Atkinson was sitting in that Land Rover. So you

12 bring your thinking as to, if you were sitting where he

13 says he was sitting, does it accord with what he says he

14 could see?

15 Now, this issue about what could be seen from the

16 Land Rover, the references are the British Irish Watch

17 submission, part 6, page 264; the PSNI at part 5,

18 pages 118 and 120; and, as I have said, I also would

19 refer you, members of the Panel, to not just what my

20 learned friend Mr Adair has said, but I would also refer

21 you to the evidence which Mr Atkinson himself gave at

22 the Marc Hobson trial. You will find the reference for

23 that at page [8347] about the restricted view from the

24 Land Rover.

25 You will also find a similar account regarding the


11
1 path of vision of Reserve Constable Atkinson is given in

2 his disciplinary interview. You will find the reference

3 to that at 09491. It read:

4 "When you are in the back of a Land Rover, your main

5 view is out the front. You really can't see unless

6 you're sticking your head in around you. It's stuck out

7 the passenger door, like."

8 What I say to you is what Mr Atkinson says his view

9 was will accord with what, no doubt, you observed and

10 also what the evidence which he gave at the Marc Hobson

11 trial was and also in relation to the disciplinary

12 interview.

13 Issue number 3 is the conversation at the

14 Land Rover. The references, sir, in relation to that

15 with British Irish Watch are part 5, page 117; part 6,

16 page 259; PSNI, part 5, page 119; and the Hamill family

17 at part 5, page 241.

18 Now, Robert Atkinson's evidence is that he did not

19 take part in any conversation, though he was aware that

20 one took place.

21 I say there is no contradiction of that.

22 P40 discussed matters. P40 was, "Are you at the

23 painting? Maybe get you up to paint my house some

24 time". Reserve Constable Cornett, "Is that a polo

25 shirt? 30? Good value", words to that effect.


12
1 Constable Neill was in the front seat. Members of

2 the Panel, you will recall that that was a matter I was

3 most conscientious about asking each officer about and

4 questioning about Mr Atkinson. In cross-examination

5 no-one suggested Mr Atkinson said anything.

6 So if there is any criticism about a conversation

7 with Stacey Bridgett and Dean Forbes, that falls to no

8 part of Mr Atkinson. The evidence is not there that he

9 participated in any conversation. In fact, quite the

10 opposite.

11 As for the suggestion by British Irish Watch

12 regarding an alibi for Dean Forbes and Stacey Bridgett,

13 that has been dealt with in my paper furnished to the

14 Inquiry, and I doubt if it would be a useful use of your

15 time to go into it in any detail

16 Issue number 4, Neill being pulled from the

17 Land Rover. The references, sir, for the PSNI, that is

18 dealt with in part 6, page 260; Reserve Cornett says he

19 was pulled from the Land Rover at 2.9 of part 6; and the

20 civilians also confirm an approach to the Land Rover.

21 Mr Neill was pulled from the Land Rover and

22 Mr Atkinson's evidence is absolutely clear about that.

23 That was about four minutes after

24 Reserve Constable Cornett -- three to four minutes the

25 evidence before you is, after Reserve Constable Cornett


13
1 had told the boys to move on.

2 If I take you to the transcript in the Hobson trial,

3 it reads:

4 "Question: Okay. You gave evidence about this at

5 the trial of Hobson?

6 "Answer: That's correct."

7 This is the cross-examination before you in relation

8 to the Hobson trial:

9 "Question: There you told the judge there was

10 a three to four-minute gap between the incident when you

11 saw Miss Cornett tell them to push off and the door

12 being pushed open, Mr Neill's door?

13 "Answer: That's right, as far as I can recollect.

14 "Question: Tell us about what -- tell us about what

15 happened.

16 "Answer: We were just sitting in the vehicle. The

17 next thing, the door burst open and I could see

18 Constable Neill going out at an angle as if someone had

19 grabbed him and pulled him out."

20 I say, if you look at his evidence at the

21 Marc Hobson trial, which you will find at 08340, that

22 that is consistent with the account given. I refer you

23 also to paragraph 18 of Reserve Constable Atkinson's

24 statement. He exited the Land Rover when

25 Constable Neill was pulled out.


14
1 So we say to you (a) there is no contention about

2 Constable Neill being pulled out, and that, over and

3 above that, Constable Atkinson is one of the officers

4 who can actually give you some assistance even in

5 relation to the time-line of that, and that he has done

6 that with very great consistency.

7 Issue number 5, men on the ground, the fight itself.

8 This is commented on in the composite submissions by the

9 PSNI at part 6, pages 260, 263, 265, 268. On the

10 Marc Hobson -- sir, am I going a little too fast?

11 THE CHAIRMAN: No, no.

12 MS DINSMORE: Marc Hobson at part 6, pages 261 and 262.

13 British Irish Watch, part 6, pages 263, 264 and 266.

14 The serving and retired officers, you will find their

15 submission on that at part 6, page 306.

16 We say that the outline given by Reserve

17 Constable Atkinson accords with much of what

18 Constable Neill has stated. From the transcript of

19 Mr Atkinson's evidence to the Inquiry:

20 "Question: At what point did you realise there was

21 somebody on the ground?

22 "Answer: When I was having a tussle with this guy.

23 Obviously, I had a baton in one hand. So I was only

24 able to hold on to him with the other hand. I had my

25 flak jacket on, which is about 2 stone weight. It's


15
1 sort of wearing you down. He spun me round and I got

2 a quick look over my shoulder and I could see a body on

3 the ground at that stage."

4 Then at paragraph 21 of his statement, which you

5 will find at [81385], sir, he saw two persons lying on

6 the roadway after separating Constable Neill from

7 an assailant, and a Nationalist individual from four to

8 five Loyalists.

9 Now, there is no doubt that the Inquiry will want to

10 know what Mr Atkinson saw. It is absolutely clear that

11 he has been consistent. What he saw was a fleeting look

12 while he was engaged, as I have outlined from the

13 transcript.

14 I have done an audit of everything which

15 Constable Atkinson has said in relation to this, and

16 I respectfully suggest to you that a reading in the

17 whole of what Constable Atkinson has said justifies that

18 Reserve Constable Atkinson saw persons in or about or in

19 the vicinity of the head of Robert Hamill.

20 In his statement he says -- his statement of

21 27th April, his initial statement given, he says the

22 words "jumping on the head".

23 On Day 47 of his evidence at page 66, line 18, he

24 says:

25 "They were jumping about him."


16
1 At the Hobson trial, and I refer you to document

2 08343, lines 7-9:

3 "They were jumping in and about the area of his

4 head."

5 Line 18:

6 "Jumping about him."

7 In his witness statement at paragraph 25 he says:

8 "Jumping in or around the head of the male on the

9 roadway."

10 In his police interview at page 09509,

11 paragraph 34:

12 "A couple of boys running in and out at the body

13 that was lying on the road."

14 At page [214543] "jumping on the head."

15 Now, that's the evidence before you. I urge not

16 a particular construction of it. What I would say to

17 you is that Robert Atkinson has been very frank about

18 what he saw and the circumstances in which he saw it,

19 the circumstances being the fleeting glance whilst

20 engaged in a struggle with an individual.

21 When you look at the multiple outlines that he has

22 given, in all probability it is justifiable to take the

23 view that it was in or about the head, though certainly

24 the statement of the 27th says on his head, but I have

25 given you the references and I would urge upon you the


17
1 circumstances in which -- and the opportunity, or,

2 a better way of putting it, the lack of opportunity for

3 a detailed observation which Robert Atkinson had.

4 Issue number 6 which has arisen from the

5 composite closing submissions relates to the allegations

6 regarding failure to act or respond appropriately.

7 Now the references for those, sir, are as follows:

8 Police Service for Northern Ireland, part 6, pages 304

9 and 264 they make comment on this; the serving and

10 retired police officers, they make comment at part 6,

11 pages 251, 266, 277; the Hamill family at part 5,

12 page 242; the British Irish Watch, part 6, page 259,

13 270. This was a laborious task, Chair.

14 The civilian witnesses, they make it at part 6,

15 page 265; Marc Hobson's counsel's submissions are at

16 part 6, page 302.

17 I, on behalf of Mr Atkinson, adopt the submissions

18 of Mr Charles Adair and we say that all that might be

19 said -- and I know I have grave issues to address later

20 on this morning -- all that might be alleged against

21 Reserve Constable Atkinson, and notwithstanding that

22 there has been a very, very great momentum, and efforts

23 made to blacken his name, there is no doubt, I would

24 suggest to you, on the evidence, that, of the four

25 police officers in that Land Rover crew, Robert Atkinson


18
1 was the most active, initially on the scene, the one

2 most active in its entirety on the scene. It was

3 Robert Atkinson and Neill.

4 One does not want to put matters too colloquially,

5 but there is no doubt Robert Atkinson was in there

6 battering away with his baton and struggling to the

7 extent that he got his baton broke. No-one could say

8 that Robert Atkinson was out of that Land Rover turning

9 a blind eye.

10 It is worthy also of note that Colin Murray, who was

11 the policing expert, and no doubt Sir John will bring

12 his vast experience in relation to this, like

13 Colin Murray, who was very aware of the grave

14 allegations that had been made against Mr Atkinson, but

15 he was able to stand back from those unsubstantiated, we

16 say, allegations, when it came to looking at, "How did

17 this policeman act as a policeman at this scene?" he was

18 able to stand back. He was not so blinded by any

19 pre-conceptual bias that Colin Murray finds, as

20 the policing expert, that Reserve Constable Atkinson was

21 one of the most active at the scene.

22 That perhaps says something to you about him as

23 a policeman as well. Further, there is the objective

24 evidence, getting his baton strap broken in the

25 altercation. I refer to his statement at [81385].


19
1 Further, this accords with the evidence which is before

2 this Inquiry about the type of operational policeman

3 Reserve Constable Atkinson was.

4 Perhaps one of the gems of the Inquiry was

5 Donal Blevins, who certainly was not, I suggest, coming

6 across to you as a man and great supporter having any

7 affection whatsoever of Reserve Constable Atkinson, but

8 how did he describe Reserve Constable Atkinson as

9 an operational policeman? I am not alluding to the bad

10 language. I will move just to the one phrase which

11 perhaps says it all:

12 "He would arrest his ma."

13 That was the sort of policeman Reserve

14 Constable Atkinson was. I would suggest to you there is

15 absolutely no doubt on the evidence before this Inquiry

16 that it can be taken away, regardless of what else one

17 has to look at and what else might or might not have to

18 be answered -- no-one can take away that, as

19 an operational policeman, he was proactive without fear

20 or favour at the scene the night when Robert Hamill

21 sadly died, and he was indeed carrying out his police

22 operational duties with no operational assistance.

23 I make no comment on that. That's for someone else to

24 answer, whether it be resources or whatever, but there

25 is no doubt there is no criticism can be made that


20
1 Robert Atkinson was not out there doing his best for

2 Robert Hamill at that scene.

3 I then move to the making of the statement --

4 THE CHAIRMAN: Just before we do, it seems to me that the

5 Panel will have to consider each member of the

6 Land Rover crew separately in relation to whether there

7 was any delay on his or her part in being active. It

8 wouldn't be right simply to say, "Well, police were late

9 on the scene" and lump them all together.

10 MS DINSMORE: Absolutely not.

11 THE CHAIRMAN: It depends on the moment of each officer's

12 knowledge.

13 MS DINSMORE: Absolutely. What I say to you with relation

14 to each officer's knowledge, insofar as it relates to my

15 officer, is that my knowledge came from Neill was pulled

16 out of the Land Rover, and one looks at what action he

17 took thereafter.

18 THE CHAIRMAN: Yes.

19 MS DINSMORE: Then if I move on to the making of the

20 statement and the alleged omissions therein, I refer in

21 my entirety to the submission which we have furnished,

22 found at pages [1459 to 1462] of the closing which had

23 been furnished to you, and I have little to add to that.

24 The only aspects which I consider appropriate this

25 morning to highlight out of that are the reasons which


21
1 Mr Atkinson gave as to why he did not include

2 Allister Hanvey's name in his statement.

3 It falls to you whether you are convinced by these

4 reasons or not.

5 The first is he says he only named people with whom

6 he had direct dealings. He had no direct dealings with

7 Allister Hanvey at the scene. Many of the policemen,

8 I say to you, saw Hanvey and did not name him in their

9 statements. I say there is nothing can be construed by

10 the omission by Reserve Constable Atkinson unless one

11 wants to, and, I suggest, quite improperly, bring to

12 bear on one's thinking unsubstantiated allegations.

13 The explanation given for the omission records

14 exactly what the other policemen did. The only person

15 whom you could possibly, if one was doing a fine-toothed

16 comb exercise -- there was any suggestion of untoward

17 dealings between Atkinson and Hanvey at the scene is

18 Trevor Leatham. I have dealt with him in very great

19 detail in our submission. He could not even remember

20 anything at the scene.

21 When you look at it, even if you wanted to believe

22 Trevor Leatham, which I would respectfully suggest to

23 you is not a course I could imagine you being attracted

24 to, even if you did, it doesn't amount to very much

25 other than him saying Atkinson said Hanvey was high on


22
1 drink and drugs. I would respectfully suggest to you

2 Trevor Leatham is sadly of little or perhaps no

3 assistance to your good selves.

4 Now, there is another that I would call perhaps

5 a Northern Ireland gem in relation to the reasons why

6 Hanvey's name was not included by Atkinson and it was

7 given quite innocently and directly by Mr Atkinson.

8 If you look at his transcript, page 80 on Day 57, he

9 was asked about why he did not name him in the statement

10 and he said:

11 "Well, I was giving evidence we had been involved in

12 an incident at Bellaghy, and that, after that, I didn't

13 put in anybody I hadn't direct dealings with."

14 So quite clearly policemen get their fingers burnt

15 in trials. Policemen get their fingers burnt by people

16 with enormous expertise like Mr Underwood, Mr Adair or

17 Mr McGrory. There are people like that challenging them

18 about what they have put in their statements, and

19 clearly Mr Atkinson got his fingers badly burnt in

20 relation to some issue at Bellaghy. After that, he was

21 keeping his statements tight. He was keeping his

22 statements, "Nobody will be able to say to me, 'You put

23 that in your statement. You didn't see it', and make

24 a fool of me".

25 I say that is a very telling and real and convincing


23
1 explanation. Also, he is no different from any of the

2 other policeman. Many of them saw him at the scene and

3 did not name him.

4 Also, it is not as if Robert Atkinson was hiding

5 him. Robert Atkinson had named him. He had named him

6 at the scene to P89. Then, when one says "Well" --

7 because a lot has been made of this statement. It all

8 falls into perspective when one looks at Bradley, who

9 was the man taking and dealing with the statements. You

10 have to remember there may be criticisms that you wish

11 to levy regarding briefing and debriefing and suchlike.

12 It is not for me to comment on that, but it is a context

13 in which you will consider any criticism or potential

14 criticism of my client in relation to including that in

15 his statement.

16 It was very telling and all boiled down when I was

17 cross-examining Detective Constable Bradley. On Day 49

18 you will find the reference, page 75, lines 1-5. I was

19 exploring with him this allegation of complaint or

20 omission on the part of Robert Atkinson. What was his

21 answer to me:

22 "Answer: I am still not complaining."

23 So I say to you there is no criticism. One can see

24 why, quite wrongly, quite improperly, but perhaps in

25 enthusiasm -- one could then want to read into a leaving


24
1 out of Allister Hanvey's name because it gives rise to

2 a piece of a jigsaw of a picture someone wants to make

3 apropos the tip-off. I say there is no foundation for

4 finding that piece of the jigsaw. These pieces of the

5 jigsaw will mean the picture is not going to be

6 complete, but we will come to that.

7 So what I say to you is there is no foundation

8 whatsoever by considering -- and you have a statement of

9 the 27th, and I suggest to you it is a full statement,

10 a very full statement. If there are any weaknesses,

11 they are systematic weaknesses. One of the wonderful

12 things about an Inquiry like this is, you know, better

13 will be possible and good will not be enough, and if

14 better is possible, then the weaknesses that maybe give

15 rise to statements not being a counsel of perfection

16 will be remedied, but there is no criticism whatsoever,

17 in the times that we're in it, of the approach

18 Mr Atkinson took to his statement.

19 Then I look to the allegation, and this is one to

20 which great exception is, in fact, taken. That is that

21 Robert Atkinson was a bigot. There is an allegation in

22 the British Irish Watch:

23 "... perhaps on the Loyalist side."

24 Now, there is no evidence, no evidence before this

25 Inquiry, of any such allegiance. That was


25
1 notwithstanding the very best efforts of Mr McGrory.

2 Mr McGrory himself in his closing accepted that he tried

3 and admitted defeat on that about the allegiance. There

4 is no evidence of this allegiance that is alleged.

5 There is no evidence of bigotry. There is no sin in

6 being a Protestant and ending up a policeman. That

7 doesn't make you a bigot. It doesn't make you part of

8 the Loyalist side.

9 This ludicrous -- with all due respect to my learned

10 colleague -- suggestion that there is a raison d'etre

11 for this alleged tip-off that this man was courting

12 favour in a desire to rehabilitate himself within his

13 community. This man had been in the Police Service, it

14 is quite clear from his statement, since 1974. He had

15 served in the most grave, grave areas within

16 Northern Ireland. The evidence before this Inquiry,

17 which is not refuted, is he has had his home attacked by

18 both sides of the community. He had shots fired into

19 his house with his wife and children there. He had

20 devices put on his car and his caravan.

21 There is no disputing just what Mr Atkinson and his

22 family have suffered from both sides, to the extent the

23 police wanted to move him, wanted to move him to

24 Coleraine. You will see the evidence in the statements

25 to that effect, but they had a mother and mother-in-law


26
1 and he was not going to give into that.

2 So this is a man who has spent his life putting his

3 wife, his children's lives, in misery at times in

4 pursuit of his career. To have to up sticks and move

5 because of a Loyalist threat, I mean, where is the

6 Loyalist side to him in the face of that, members of the

7 Panel? This man was an ordinary policeman at his job,

8 would arrest his ma, taking no nonsense from nobody.

9 That was his career. Whatever it took, he was going to

10 do it. There is great exception taken to an allegation

11 of bigotry and allegation of a Loyalist.

12 So you will be glad to hear that that is the

13 entirety of the first half of my address to you.

14 I expect I will take no longer than maybe another

15 15 or 20 minutes. I am in your hands as to whether you

16 want a break of fifteen minutes, Mr Chairman.

17 THE CHAIRMAN: We will have a break now then.

18 Fifteen minutes.

19 (11.30 am)

20 (A short break)

21 (11.45 am)

22 MS DINSMORE: Sir, I now turn, as I indicated, to deal with

23 the issue of the tip-off. I adopt our submissions in

24 their entirety which start at page [485]. I do not

25 intend to take your time today by repeating them.


27
1 I have total confidence that each and every one of the

2 points made therein has been considered and noted and

3 will be given due weight.

4 So what do I want to do then? What can you add in

5 these circumstances?

6 Firstly, I want to adopt Mr Tony McGleenan's

7 forensic and superb outline to the Inquiry regarding

8 Tracey Clarke. I would ask you to read, not just our

9 submissions on the tip-off in light of what I say to you

10 today, but also what Mr McGleenan said to you in his

11 closing, and also, because I was embarrassed when I read

12 Mr McGleenan's, when we got the composite submissions,

13 the good points he had that I had missed, I am asking

14 you to read, not just our tip-off submission, but also

15 Mr McGleenan's. I say that therein you will find many

16 of the answers to what the evidence amounts to.

17 I am going to address you, and I am going to allow

18 myself between 12.10 and 12.15 at the very latest, on

19 three matters. The first is going to take me very

20 little time, because I know I am at the feet of a great

21 master in relation to the assessing of evidence and

22 missing evidence and finding evidence and spotting what

23 is missing. Therefore, I am not going to presume to

24 explain to the Chair where all the evidence on the phone

25 call actually lies, what I call the hard evidence. I am


28
1 going to briefly deal with that.

2 Then what I intend to do is deal with Andrea McKee

3 and Tracey Clarke.

4 Then, thirdly, what I am going to do is suggest to

5 you that when each of you bring your wealth of

6 experience, professional and personal, that you have had

7 in life to looking at what I would call the damaged

8 people who gave evidence, this Inquiry is full of

9 tragedy, and I alluded at the outset to the ultimate and

10 devastating tragedy to the Hamill family, but, sadly,

11 before this Inquiry there have been other victims in

12 relation to allegations, and I would say to you that my

13 client is the greatest fall guy for that, but also it

14 was quite clear in life's rich tapestry and the

15 participants in 1997 who were then visited in 2000 that,

16 sadly, you have had very damaged people before you,

17 people who were living in dysfunctional families, not

18 all people -- I am saying there are some individuals --

19 and I am going to come to how they can assist you in

20 relation to: is Tracey Clarke telling the truth or is

21 Andrea McKee telling the truth? Because people like

22 that, they have not got a motive. Jim Murray is not the

23 sort of man who has a motive, who hasn't got his

24 strategy thought through. I will come to that.

25 Those are the three things I will deal with in the


29
1 next fifteen minutes.

2 What does the hard evidence amount to? It amounts

3 to an indication that there are two telephone calls

4 which are accepted were made from the Atkinson household

5 to the Hanvey household. There is no hard evidence as

6 to who made them. There is no hard evidence who

7 received them. More importantly, and this is a point

8 which I have taken much comfort in being completely

9 satisfied that our learned Chair is very, very alert to,

10 there is not a scrap of evidence as to what was said in

11 the alleged phone call, not a scrap.

12 Now, Mr McGrory said we had tens of thousands of

13 papers, and believe me, we have, but in those tens of

14 thousands of papers there is not one admission, not one

15 admission, alleged by anyone. Poor old Michael McKee

16 didn't even, because the Inquiry have not called him,

17 the Inquiry have no statement in from him, and I have to

18 say I watched like a hawk when his interview was read

19 out. Even in his interview, there is never, ever, ever,

20 even when you were prepared to have evidence of such

21 very questionable capacity to be given much weight to,

22 even if I had to fall on that sword, it is very, very

23 telling that, even then, there is not a line in the tens

24 of thousands of papers before this Inquiry that

25 Robert Atkinson ever admitted what has been alleged


30
1 against him.

2 Therefore, there is no evidence, none whatsoever,

3 about what the contents of that phone call that's

4 alleged to have been made were, other than the grand

5 scenario of Andrea McKee's hearsay.

6 You might think it remarkable that, over the many

7 years and all the papers, there has never been that bit

8 of evidence that you could hang a coat on.

9 So this Inquiry, I would respectfully suggest,

10 cannot make a finding that a call was made to the effect

11 alleged.

12 Really that's all I want to add to the submission on

13 that. There are ten points in the submission before

14 you. You have all of that.

15 So where does that bring us then? That brings us

16 to: what about what Andrea McKee said? I also note that

17 I have what is not a light burden, and that is to deal

18 with, why would she plead guilty? A different question

19 is the conspiracy. The contents of the phone call is

20 one issue. The other is the conspiracy.

21 In relation to the conspiracy, again that all

22 revolves around Andrea and Michael McKee. I know you

23 will say, because you have been very alert to it,

24 Mr Chairman, and you have regularly alluded to it,

25 understandably, that, "There is the plea of guilty and


31
1 the risk of going to prison". I have dealt -- I am

2 going to come to some of the points on that. I intend

3 in the next few moments to outline to you that bearing

4 in mind how very grave the allegation is, can you be

5 satisfied from all that you have seen, heard and read

6 that there is, in fact, cogent evidence, and that the

7 cogent evidence is the fact that Andrea McKee pleaded

8 guilty?

9 What I am saying to you this morning is this. Yes,

10 it is a factor. Yes, weight needs to be given to it.

11 You alluded with my learned friend Mr Emmerson to it.

12 Yes, the DPP gave it weight, gave it consideration. It

13 was a factor, but what we must not run away with, and it

14 would be easy to do, we must not run away with the fact

15 it is not a trump card. It is a factor. The weight

16 lies to your good selves, and the weight is not just the

17 certificate of conviction. The weight is your

18 assessment of Andrea McKee and the circumstances. I am

19 going to suggest to you that, when you look at all of

20 those circumstances, the weight to be attributed is

21 grossly, grossly diminished, but it is not and cannot be

22 a trump card. If it was treated as a trump card, that

23 would mean that relevant factors were not taken into

24 consideration. It does not obliviate all else.

25 Then really it comes down to Andrea McKee and


32
1 Tracey Clarke. When one looks at it, you have the

2 arguments. There is no point in me starting to explain

3 all the truths and untruths which were admitted to by

4 Andrea McKee. That's all before you. There are

5 a couple of things, however, that I am going to

6 highlight to you.

7 One is: who was staying allegedly at Andrea McKee's

8 that night? When you look at her statement, there is

9 very great detail, great detail, about Prince Naseem

10 boxing being on, great detail about Sky, blah, blah,

11 blah. It was Mr and Mrs X. I think they have

12 anonymity, don't they? Then, oh, whoopsy, it transpires

13 that Mr and Mrs X did not even know each other at the

14 relevant time.

15 Now, Andrea McKee had endless recall about that

16 evening. Oh, whoopsy, she did not subscribe to Sky.

17 Oh, whoopsy, there is no -- Prince Naseem or whoever he

18 is, the boxer, was not on that night. All that level of

19 detail is wrong. Andrea McKee says, "Got that wrong,

20 but I am completely sure Joy Kitchen and Rodney Smith

21 stayed."

22 Now, that's having made up the other people who

23 didn't even know each other. Then we look at

24 Rodney Smith and Joy Kitchen. You heard them. They

25 don't remember being at her house. Just think how


33
1 incredibly devastating a night 27th April at that time

2 was in Portadown, and we know that a theme of this

3 Inquiry is it was the talk of the town. That night was

4 the talk of the town.

5 Now, if you had been staying at somebody's house

6 that night, you would remember it. You have heard them.

7 They didn't remember it. Andrea seems to remember it,

8 having remembered the other people who didn't even know

9 each other. She seems to remember it, but they don't.

10 Now of all the nights to forget you were staying at

11 somebody's house ... hard to believe.

12 I have to pay tribute to Mr Mallon in relation to

13 this. Mr Mallon has been relentless in his pursuit of

14 the telephone call that was allegedly made from the

15 McKees' house at 1.30 that morning, as if that's another

16 trump card about, "Well, there you are. There is a bit

17 of objective evidence. Phone call. Well, it is Smith

18 spelt differently. That means Andrea remembers there

19 was a Smith staying", even though they don't remember.

20 Then, when we looked into it, and Mr Mallon has made

21 numerous enquiries to Mr Underwood, and Mr Underwood at

22 all times has cooperated and exercising enquiry after

23 enquiry after enquiry, that telephone bill has never

24 been produced. That telephone record has never been

25 produced. That, of all the tens of thousands of


34
1 pages in this Inquiry, is the one thing that's missing.

2 It is the one bit that's allegedly objective, that folk

3 were at the McKees that night. I leave it to your good

4 selves in relation to that.

5 So that's only a snippet of the sort of untruths and

6 approach of Andrea McKee.

7 There is a saying that goes, "There is a crack in

8 everything and that's how the light gets in". Now, the

9 cracks in the individuals of Andrea McKee,

10 Tracey Clarke, Jim Murray, Tracey Clarke's mother, the

11 light that is pouring through those cracks is going to

12 illuminate your way as to: is Tracey Clarke to be

13 believed or is Andrea McKee to be believed?

14 Tracey Clarke. If ever there was a justification

15 for having a public Inquiry operationally as opposed to

16 the tragic consequences, I mean, people say, "Why do you

17 need public inquiries? You have tens of thousands of

18 pages and you have lawyers looking at them and looking

19 at them. What can it possibly add?"

20 I say in this case the key is the hearing and seeing

21 of those individuals. It was quite properly put and

22 accepted by Mr Emmerson that, of course, you are looking

23 at maybe the same circumstances, but with lots of added

24 layers of approach and consideration that were not open

25 to the learned PPS office, who I would say, as we have


35
1 said in our submissions, we have no doubt went about

2 their business with due diligence.

3 When one looks at all of that, what does that show

4 us? That shows us that Tracey Clarke -- now, you think

5 back to that girl on that video. Now, there is one

6 thing that British Irish Rights have got right. There

7 is one phrase with which I find myself in total

8 agreement. That was that Tracey Clarke was

9 press-ganged. Even British Irish Rights Watch could

10 identify that. She was press-ganged. You think on her.

11 I have urged you in our submissions to go back to her

12 transcript that day, but I want you to do more than

13 that, I want you to think about how -- the way we say

14 when we are closing to juries, "They are there because

15 you see them and you can see their body language", and

16 all this. Tracey Clarke's body language was

17 devastatingly telling, I say to you.

18 When you think of it, think of the little things

19 that girl said. "I was a mess." We know from the

20 medical records that she is very, very damaged. "I was

21 a mess". She was 17. She had a vindictive, ill,

22 physically and mentally, mother. She was living with

23 a stepfather who was an alcoholic. The wee girl was

24 industrious. She had two jobs. She got in tow with

25 Allister Hanvey. It was far from a loving, supportive


36
1 relationship. What did that wee girl, who is a woman

2 now, show and tell you?

3 She said something which I must say took me aback.

4 She said "I was doing drugs. I have never told anyone".

5 I don't know how you read that, and I am not saying I am

6 reading it right, but I got the impression that that was

7 the first time that girl had admitted to anyone that she

8 was doing drugs at that time. That just came out in her

9 evidence.

10 When I put to her what is the true situation, we

11 say, apropos Andrea McKee and the influence of her -- we

12 all know she lives right beside her. We all know

13 Michael was her uncle. We all know they were

14 gossipping, gossipping. We know all that. We know

15 Andrea says she gave her money.

16 What does see do? When I put it to her, I said,

17 "You would basically have done anything Andrea McKee

18 asked of you", and she couldn't answer me. She started

19 to cry. She nodded and I had to say, "I am afraid the

20 tape does not pick up a nod", and she said, "Yes".

21 Her presentation, I urge upon you, was totally

22 authentic.

23 Secondly, Jim Murray. Jim Murray must be the most

24 convincing witness that appeared before this Inquiry,

25 because Jim Murray, "I was never sober". No shame about


37
1 him. "I am what I am and I am just here to tell you

2 what I know. I don't remember anything about writing

3 that statement", and the thrust of his evidence was it

4 was in an alcoholic stupor.

5 Now, that was three years later. In 2000, he gave

6 his statement, as did Tracey Clarke's mother. They are

7 the big corroborating evidence about Tracey being all

8 annoyed about a jacket, three years later, with the

9 problems Tracey's mummy had and the problems that

10 Jim Murray had, what are the chances of those two coming

11 up with recall in those statements and that being true?

12 Those had to come from somewhere and I say everybody

13 knows where they came from. It came from Andrea McKee.

14 No-one is in the game here of wanting to humiliate

15 anyone, any individual. There, but for the grace, go

16 any of us with problems, but like Michael McKee,

17 Michael McKee, I mean, Michael McKee was undoubtedly --

18 the evidence you have from him, which is paltry, but it

19 is pathetic insofar as he says what he was; he was

20 a hopeless drunk at that time. He was a broken man when

21 he made that plea, a man who had been a victim of

22 Andrea McKee, which I am coming to. He is a broken man.

23 You read his interviews again. Did he strike you as

24 a man with a real story to tell you about or did he

25 strike you as a man who was wanting out and getting it


38
1 done?

2 You don't need me to labour you about Tracey Clarke

3 in the police station. You have seen her and heard her.

4 We know what we know about Andrea McKee, and you have

5 seen her too. I mean, she could do plenty of talking.

6 If any of -- it is a matter for you. You might find it

7 hard to believe that Andrea McKee could sit for hours in

8 a police station and keep her mouth shut, which is

9 alleged. Right?

10 I urge upon you Mr McGleenan's submissions about the

11 circumstances of Tracey coming to that.

12 So why did Tracey say those things and why did she

13 not tell anyone? She said them because, if you look at

14 the evidence, it is riddled with, "I am excited". It

15 was exciting. It was something to talk about. People

16 became players. People had an identity with it. People

17 were the subject of attention if they knew or talked

18 about it and it was the talk of the town.

19 So Tracey became somebody by having been there. She

20 says she made it up. Mr McGrory threw me a very good

21 bone, which I had not actually thought of. He referred

22 to Allister Hanvey being boastful, boasting. I am not

23 here to speculate. That's where you bring your

24 experience to your deliberations, but to deal with the

25 point that Mr McGrory said, if Tracey is saying she has


39
1 fallen out with him -- they seem to fall out on and off;

2 nobody knew whether they were on or off -- and she says,

3 "I am go going to go to the police", as a threat to him.

4 Did Allister Hanvey strike you as the sort of man who

5 would say, "Please don't do it, pet. I love you", or

6 does he strike you as the sort of boy who would say, "Do

7 what you want. I have got friends"?

8 I mean, it is speculation, but Mr McGrory hit on it.

9 Allister Hanvey was a bum. He was. He was a blow. If

10 he was going to -- so he might well have said some

11 rubbish like that to be the big fellow. You might well,

12 having heard and seen him, think he likes to think of

13 himself as a big fellow. I will leave that with

14 yourselves, members of the Inquiry.

15 Then one looks at why then? So I say to you there

16 is no doubt -- it is a human tragedy for each and every

17 one of those people, but there is no doubt, I would

18 respectfully suggest to you, that the resources that

19 went into this Inquiry were entirely merited when one

20 saw how Tracey Clarke could change one's thinking from

21 what one reads in the papers, but that's your call and

22 I leave that with you.

23 Then I turn to my final bit, because I am running

24 over. Why would Andrea McKee plead? Why would she?

25 First of all, Andrea McKee pleads, oh, she is just so


40
1 wracked with her wrongdoing. Right? Wracked with her

2 wrongdoing. She has broken from him. She is living in

3 Wales. Does she phone anybody and talk about it? No.

4 There is a lovely gem in this Inquiry about that. What

5 do girls talk about with their best friend? They talk

6 about what's worrying, annoying them and fussing them.

7 Right?

8 Now, Andrea McKee had nobody left in Portadown or

9 Northern Ireland except Glynnis Finnegan. They phoned

10 each other maybe once a week. What does Glynnis Finnegan

11 say? She says the conversations were really about

12 complaining about xxxxx and Michael. I know it is

13 important, but really there was not much interest in the

14 "Robert Atkinson thing".

15 So what we know is this Andrea McKee, who is meant

16 to have been devastated with her wrongdoing and wanting

17 to put things right, she is phoning her mate, and when

18 she is phoning her mate, what she's saying is, "What is

19 Michael doing? How is Michael?"

20 That is what girls do when they are pre-occupied

21 with men. Her pre-occupation was with Michael and that

22 bore fruit when one looks at the letter that she wrote,

23 the letter where she said, "I will blacken you in

24 Portadown". I am not going to read the bad language out

25 or anything else. You can read the letter. It was


41
1 very, very strong. A very determined woman with a very

2 strong attitude. She was determined.

3 What happened? An opportunity arose. She didn't

4 phone because she was devastated by her wrongdoing and

5 wanting to put life straight. Oh, no. McBurney et al

6 turn up and give her an opportunity. She is treated

7 like a queen. They get her a Queen's Counsel

8 solicitor -- people who turn Queen's evidence solicitor.

9 They get it all set up for her. She calls the shots and

10 during the course of it, it is unambiguous that she

11 lied, unambiguous. I mean, the forensic analysis of

12 Mr Emmerson in relation to Pendine, etc, was masterful

13 and irrefutable. Therefore, she is unambiguously

14 a liar. That has to be found to be the case on that

15 point.

16 Mr Chairman, I know I wake up at night thinking

17 about how on the point you are about how you can be

18 lying about one point and telling the truth about

19 another point. I know that is a problem, but I am going

20 to say to you that when you look at, not just the lies

21 that she has definitely told, beyond peradventure, when

22 you look at the submissions of Mr Emmerson, beyond

23 peradventure she has told lies, but look at the

24 circumstances she told those lies into, and look at what

25 Mr Simpson said: a brazen liar. I am not talking now


42
1 about an assessment of prosecutorial duties. What do

2 they, as experienced people, make of her? A brazen

3 liar.

4 Another gem in this Inquiry was Christine Smith when

5 she said -- you know, you asked a question, Mr Chair,

6 and Miss Smith answers, "Now, when I just think on it

7 now, it was just one of those things that strike you.

8 Andrea McKee struck me as someone thinking what was in

9 it for Andrea McKee".

10 I say to you here was a woman who was given

11 an opportunity, an opportunity to get an end. The end

12 was to absolutely -- nothing they say is as bad as

13 a woman scorned, and this woman was scorned by

14 Michael McKee and she was going to do what she could do

15 and she met with Mr McBurney hungry, hungry.

16 I am not going to go into all of the stuff we have

17 had this week about the influences of Mr McBurney, the

18 impetus from higher echelons or whatever, but there was

19 a strong political climate. There was a very

20 enthusiastic Secretary of State diligently asking

21 questions. The Attorney General was at the hub of it.

22 Andrea McKee was met with a very hungry Mr McBurney. He

23 presented her with the perfect opportunity. She was

24 gilded through it like Catherine Jagger you will recall.

25 She said in her evidence, "Oh, yes, I talked to the


43
1 police before I met my client. I wrote the letter that

2 the police then sent", and when I believe it was myself

3 pressed her, I said, "Really, was it exceptional what

4 occurred here with you?" She said, "Yes, it was not

5 normal". So yes, it was exceptional.

6 Everyone said there was a risk she would go to

7 prison. Well, you can bring your extensive experience

8 to that. A woman living in a new jurisdiction with

9 a young child embarking on a new career, many years past

10 the alleged incident? I mean, what real risk was there

11 of her going to jail? Why did Michael McKee plead? He

12 was a broken man.

13 I am going to conclude by saying -- I apologise;

14 I am a little over -- I have said very little about

15 Mr Atkinson other than, no matter what else you are

16 going to say, he was a very active policeman. It would

17 be a very, very sad indictment that on the basis of

18 unsubstantiated gossip, systems that became hungry for

19 a scapegoat, it would be very sad indeed if strands

20 which have no place together are put together to condemn

21 an individual who had given his life to his profession.

22 I say to you there is not cogent evidence that could

23 possibly withstand the gravity of what has been alleged

24 against both Mr Atkinson and Mrs Atkinson and I leave it

25 in your good hands. Thank you.


44
1 THE CHAIRMAN: Thank you, Mrs Dinsmore.

2 Yes, Mr Wolfe?

3 Closing submissions by MR WOLFE

4 MR WOLFE: Sir, members of the Panel, I think somebody joked

5 earlier it is supposed to be the best wine served last.

6 Sir, as you know, I make my submissions on behalf of

7 the Police Service of Northern Ireland. At this stage,

8 you have read and heard extremely detailed written and

9 oral submissions. You now have before you almost every

10 conceivable side and facet of the arguments.

11 I have, however, in mind the fact that you have

12 received submissions from various aspects of the

13 policing perspective, from Mr Adair, Ms Dinsmore,

14 Mr O'Connor, Mr McGuinness and Mr Lunny. You will be

15 conscious, sir, that we all serve different masters and

16 that differences of emphasis or viewpoint can clearly

17 arise.

18 You do, of course, have our written submissions,

19 which I now take the opportunity to supplement, not

20 repeat.

21 Before I develop my oral submissions, I want to

22 emphasise the following. In 1997, policing in

23 Northern Ireland was in a very different place compared

24 to where it is today. Normal policing along the

25 lines of the conventional British model was largely


45
1 impossible, but nevertheless, sir, the RUC and the

2 officers which served it endeavoured to provide, so far

3 as was reasonably possible, a normal policing service to

4 the community which it served.

5 The RUC, of course, was not immune from the

6 religious and political schisms which run through this

7 society. By being charged with the responsibility of

8 enforcing the laws of this jurisdiction, the RUC was

9 cast in the light of holding, or was at least perceived

10 as holding, a political affiliation which, through no

11 fault of the organisation and its members, adversely

12 affected its relationship with the community.

13 It is an interesting dynamic, we say, that by 1997,

14 many on each side of the community, that is the

15 Protestant/Catholic, Unionist/Nationalist divide,

16 perceived the police as being responsible for enforcing

17 policies which were in opposition to their political

18 community and political interests.

19 All of this, sir, took place against the background

20 of violence which shaped attitudes and thinking on all

21 sides and not always helpfully from a policing

22 perspective.

23 Sir, you will have read, of course, the report of

24 Professor McEvoy, which in large measure sets out that

25 context.


46
1 What I want to say in these submissions will deal

2 with the main chunks of the debate before you. I don't

3 pretend in these submissions to cover all of the

4 minutiae, and indeed I don't think it is appropriate to

5 do so. At this stage, I think all of us and

6 particularly you, sir, and your Panel, are probably

7 suffering information overload.

8 The chunks, sir, that I wish to explore in due

9 course are the Land Rover crew. I want to look at

10 Reserve Constable Atkinson. I also want to look in some

11 respects at what has been called the golden hours and

12 particularly the issue of debriefing, upon which some

13 significant matters appear to turn. Clearly, sir,

14 I want to deal with the systemic allegation of collusion

15 and in turn that brings me to look, albeit briefly, at

16 the role of Mr McBurney.

17 Sir, there are no perfect policemen or policewomen,

18 just like there are no perfect professionals in any

19 sphere of life, a point Mr Adair has repeatedly,

20 I think, rung in our ears. The RUC, of course, was not

21 a perfect policing organisation. In the policing

22 response to what I call the Robert Hamill incident --

23 and let me briefly define that, because I will use that

24 shorthand probably regularly. It is the incident

25 itself. It is the response to the incident on the


47
1 night. It is the aftermath in terms of the

2 investigation.

3 You will find, sir, and you might be entitled to

4 find, that mistakes were made around the Robert Hamill

5 incident.

6 I say, sir, that if mistakes were made to the extent

7 that police officers should be deemed to be culpable,

8 then you should find that these mistakes fall into the

9 category of honest, human mistakes.

10 The debate has been clouded by allegations of

11 sectarian agendas and of improper motives. I say that

12 the evidence is clear that there were no sectarian

13 motives or improper agendas at work, but only police

14 officers doing their best to deliver proper and decent

15 standards of policing, which, in limited respects, you

16 may find wanting.

17 I will have something to say in due course about

18 Reserve Constable Atkinson. I have listened carefully

19 to what Ms Dinsmore has expertly said on his behalf this

20 morning, but in due course I will expand upon the

21 submission which I have already made in my written

22 submissions that we don't accept her perspective or her

23 client's view on this issue. We say that the evidence

24 persuades us that he is the exception to the rule that

25 the Robert Hamill incident, as I have called it, was


48
1 otherwise policed by decent police officers who have

2 given of their best in all of the circumstances.

3 You have been tasked to consider, sir, whether there

4 are other exceptions to this rule, whether decent

5 policing has been subverted by improper and unlawful

6 motivations, and in that respect, I am specifically

7 referring to the allegation that Mr McBurney engaged in

8 a conspiracy to bury the investigation into Reserve

9 Constable Atkinson, and, in particular, the allegation

10 that, at the very top of the force, in the person of the

11 chief constable, there was a guiding hand to advance

12 that or to permit that collusive conspiracy, as

13 Mr McGrory has called it, to proceed.

14 Perversely, it may be said that we, the PSNI,

15 welcome the fact that the collusion debate has been

16 brought before you. I heard Mr Adair decry it because

17 of the direct impact that this will have on others, and

18 most particularly the widow of DCS McBurney, and

19 I understand that perspective.

20 However, the allegation which Mr McGrory and the

21 British Irish Rights Watch ask you to consider, indeed

22 what they say is at the very heart of this Inquiry, is

23 one that has assumed the status of gospel truth in some

24 pockets of this society and further afield. Therefore,

25 it is better that it is dealt with thoroughly and openly


49
1 by an independent Inquiry such as this.

2 The Police Service has nothing to fear from the

3 allegation. My client says that the evidence points in

4 the opposite direction to collusion, that it points in

5 the direction of trying to bring to justice all of those

6 who murdered Mr Hamill and those such as the corrupt

7 Reserve Constable Atkinson who would have assisted one

8 of the murderers.

9 Let me, before moving into the detail of those

10 chunks, sir, say something about the Police Service's

11 attitude or view of this Inquiry.

12 In his opening to the Inquiry on 13th January 2009,

13 Mr Underwood declared that the purpose of the hearings

14 was to bring a powerful and unbiased spotlight on the

15 public concerns that give rise to the Inquiry being

16 established so that the truth can be revealed.

17 At that time I welcomed the Inquiry on behalf of the

18 PSNI as providing an opportunity to participate in

19 a process which was designed to uncover the truth for

20 all to see.

21 I also reflected a commitment given by my client to

22 participate in the Inquiry in a manner which was both

23 open and transparent.

24 We trust that when your report comes to be written,

25 sir, that you will be able to reflect upon whether the


50
1 PSNI has made good on its commitments. In this spirit

2 of openness and cooperation I know that my instructing

3 solicitor, Mr Ferguson, and his team within the PSNI has

4 worked tirelessly in attempting to service the

5 documentary needs of the Inquiry. Plainly the Police

6 Service has held many of the thousands of documents

7 which this Inquiry has had to consider, and I believe

8 that I can speak without fear of contradiction in saying

9 that voluminous papers have been disclosed without any

10 hint of rancour or dispute.

11 I am conscious a continuing obligation to assist the

12 Inquiry ad hoc requests for documents and information

13 have been handled in the same spirit; cooperatively,

14 diligently and openly. We know, and we can give this

15 commitment, sir, that if the Inquiry requires assistance

16 in examining the precise scope of any recommendation

17 which may be deemed to be necessary in order to address

18 any lacuna which you might find in policing policies or

19 procedures as having existed in 1997, then the PSNI will

20 cooperate to the fullest extent.

21 It is also the case, sir, that very many police

22 witnesses have willingly presented themselves to the

23 Inquiry to answer questions and to be probed about the

24 events of 12 years ago. Those who have not been able to

25 come to the Inquiry to give evidence through ill-health


51
1 or death have nevertheless been interviewed by the

2 Inquiry or provided the Inquiry with statements.

3 The PSNI has always recognised the inquisitorial

4 nature of this process. My client may have adversaries

5 in this process, in the sense that there are parties who

6 have competing views about what has transpired, but the

7 PSNI has not felt itself to be participating in

8 an adversarial process.

9 The public interest in getting to the truth, or at

10 the very least a best sense of the truth as the

11 available evidence will permit, is an interest which

12 outweighs any narrow, selfish or sectional interest

13 which the PSNI might have and which it might

14 legitimately pursue in any other form of proceedings.

15 That is why in our written submissions the PSNI has

16 given ground and shown a preparedness to make

17 concessions, to accept failings and weaknesses where the

18 evidence suggests to us that these have occurred.

19 It is usually a sign of a bad lawyer if I quote

20 myself, but if I can remind you, sir, of what we said in

21 the opening on 13th January, something else we said.

22 I said that the PSNI would not seek to defend or

23 exculpate before this Inquiry any officer whose act or

24 omissions are properly and fairly deserving of censure,

25 nor, for that matter, will it seek to excuse


52
1 organisational or systems failures where they have

2 demonstrably occurred.

3 It may be, sir, that the Panel will not agree with

4 all of the submissions that have been made on behalf of

5 the PSNI. However, we trust that, when the report comes

6 to be written, the Panel will reflect the fact that the

7 PSNI has provided every possible assistance to the

8 Inquiry in its efforts to shine the unbiased spotlight

9 where it needs to be shone.

10 The Inquiry will be conscious it has not received

11 the cooperation of every person who has appeared before

12 it. There have been those who have sought to thwart the

13 Inquiry's objectives. In this Christmas season I think

14 it is apt to remember the pantomime of those who

15 performed before you at an early stage, feigning no

16 recollection greater than they may have been in the

17 centre of Portadown on 27th April 1997 and drunk.

18 It is something of the tragedy of this Inquiry that

19 nobody has seen fit to come forward and tell you

20 anything about who committed this dastardly crime.

21 I hesitate to say from the Bar, sir, that the

22 performance was planned and orchestrated. I will leave

23 you to judge that, but it was certainly the most squalid

24 aspect of the whole proceedings and utterly regrettable.

25 However, in many ways that performance was


53
1 insightful, because it gave you an indication of the

2 challenges which face policing and have faced policing

3 in Northern Ireland for too many years.

4 Sir, this Inquiry takes an important place in the

5 peace process in Northern Ireland. I think you all

6 appreciate, in coming from outside this jurisdiction,

7 the important responsibility that you hold. The

8 cooperation and support which the PSNI has given to this

9 Inquiry has been born in substantial measure by its

10 commitment to democratic and accountable policing. Part

11 of this commitment involves a recognition that the

12 legacy of our troubled past requires answers to hard

13 questions. If the peace process is to be meaningful,

14 those public authorities, and the policing service is

15 one of those public authorities, which participated in

16 the civil conflict or had a role to play in the civil

17 conflict, must do their best to answer those hard

18 questions to the extent that they can.

19 The death of Mr Hamill was an appalling tragedy.

20 For his family, the hurt left by his passing may never

21 be healed. The incident which led to his death is one

22 significant example of an event or an incident from

23 which hard questions arise. As Mr Adair observed

24 yesterday or the day before, it is not only the Hamill

25 family which demands answers to these hard questions.


54
1 Police officers and the police organisation have been

2 demonised for allegedly playing a part in Mr Hamill's

3 death. Those police officers, and indeed the

4 organisation they served, will undoubtedly welcome the

5 answers which the Inquiry can provide to the hard

6 questions.

7 We hope, sir, and it is a sincere hope, that in your

8 report and in the conclusions that you can provide that

9 you may in some small but significant way provide

10 signposts which might provide in turn guidance and

11 assurance in terms of what has happened in the past so

12 that perhaps a repetition of the hurt which many people

13 have suffered as a result of this incident, not least,

14 of course, the Hamill family, may not be repeated.

15 Your work, sir, stands alongside the work of other

16 aspects of the peace process, and by that I am thinking

17 of the Office of the Victims Commissioners, some of whom

18 have attended these hearings and have introduced

19 themselves to me, and are clearly looking to your work,

20 sir. The consultative group on the past chaired by

21 Eames and Bradley reported in January of 2009, and while

22 I think it is important to note that their

23 recommendations did not achieve universal acclaim or

24 agreement, that their work provides a forum for healthy

25 debate. Of course, there is also the work which the


55
1 PSNI continues in conjunction with the Police

2 Ombudsman's Office with the historical enquiries team to

3 look at unsolved murders and serious crime of our past.

4 Plainly, sir -- I don't say this as part of the historic

5 enquiries team -- the book on Mr Hamill's murder remains

6 open, and plainly, if there was evidence to come forward

7 which could lead to the prosecution of anyone involved

8 in that murder, then the PSNI would, of course, want to

9 hear that.

10 THE CHAIRMAN: Is that a convenient moment to break off?

11 MR WOLFE: I think so, sir.

12 THE CHAIRMAN: We are breaking off early. I am afraid

13 Sir John will not be able to be with us this afternoon.

14 I hope he will not mind me saying he is not well and we

15 should not keep him here.

16 MR WOLFE: I understand.

17 THE CHAIRMAN: 1.45.

18 (12.45 pm)

19 (A short break)

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Closing submissions by MR WOLFE .................. 45
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