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Hearing: 10th February 2009, day 13

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PUBLIC INQUIRY INTO THE DEATH OF

ROBERT HAMILL

- - - - - - - - - -

Held at:

Interpoint

20-24 York Street

Belfast

on Tuesday, 10th February 2009

commencing at 10.00 am

Day 13

1 (11.20 am)

2 THE CHAIRMAN: Yes.

3 MR UNDERWOOD: Sir, the court of the public hearing has been

4 somewhat disrupted over the course of the past few

5 working days, but I am still in the course of calling

6 witnesses who go to Tracey Clarke and her statement.

7 What I'm going to do now, if I may, is call

8 Gordon Kerr QC and then Roger Davison, who worked for

9 the Department of Public Prosecutions. Those two

10 witnesses both deal with quite a lot in their witness

11 statements. All I'm proposing to do at this stage is

12 ask them about a consultation they had with

13 Tracey Clarke, and then, I am afraid, recall them at

14 a later date that is convenient to deal with other

15 matters. So I will call Mr Kerr, if I may.

16 MR GORDON KERR (sworn)

17 Examination by MR UNDERWOOD

18 MR UNDERWOOD: Good morning, Mr Kerr.

19 A. Good morning.

20 Q. May we have your full names, please?

21 A. Gordon William Kerr.

22 Q. If we look on the screen at page [81410], we should see

23 a witness statement of yours. Perhaps I can just flick

24 through so we can identify it's yours.

25 A. Yes, that is my statement.

1 Q. Is it true?

2 A. Yes, it is.

3 Q. All I want to ask you about today is a consultation

4 which you dealt with at paragraph 6 on the second page

5 of the statement. If we can just highlight paragraph 6

6 for you. You had consultation with four witnesses,

7 Jonathan Wright and Witness A, who was Tracey Clarke.

8 If we look at page [17634], if we highlight the

9 first half of it, stop it there, you say there -- this

10 was an opinion of yours:

11 "Witness A. I saw Witness A in the presence of

12 Mr Davison. Due to her age she was accompanied by her

13 parents who seemed respectable and responsible people.

14 I took her through her statement."

15 Can you tell us what you meant by "took her through

16 her statement"?

17 A. Simply as I would in court, because I don't like leading

18 witnesses in consultations. I took the statement that

19 the police had given me and I asked her to go through

20 it.

21 Q. Did she have a copy with her?

22 A. She would not have had a copy, but she would have been

23 told by the police, if they followed my direction, she

24 was entitled to read her statement before she spoke to

25 me.

1 Q. You say:

2 "She was not unexpectedly nervous and slightly

3 hesitant in some of her answers. However, she struck me

4 as being entirely credible and reliable in her

5 evidence."

6 Could you give us an idea of your experience in

7 assessing witnesses?

8 A. Prior to this case, I had been called to the Inner Bar

9 in 1996. Before that I had been practising since 1976

10 and for 16 of those years I was Crown Counsel conducting

11 consultation with witnesses who I have to call.

12 Q. You say then you would have been content to give full

13 weight to her evidence in your opinion.

14 Just pausing there, in the consultation, before we

15 get to the point which we now know you reached where she

16 said she wasn't going to give evidence, would you be

17 have been happy to run a murder trial on her evidence?

18 A. In terms of her evidence, when I say she was credible

19 and reliable in her evidence, it means I would have been

20 content she would have been put forward as a witness of

21 truth and that she was giving as detailed evidence as

22 she could remember. Obviously, whether or not you would

23 run a murder trial on her evidence would depend on the

24 totality of the evidence in the case.

25 Q. If it were to be suggested that that witness statement

1 was a fabrication, either on the basis that the police

2 told her what to put in there or that somebody else

3 present when she gave the statement or around the time

4 she gave the statement told her what to put in there,

5 and that it did not contain what she had seen and heard,

6 what would your reaction be to that?

7 A. My reaction would be that if I had been told that,

8 I would have noted it, and I would have expressed an

9 opinion on that fact and I would have had account of in

10 considering the case.

11 Q. Without being told it, though, what's your reaction to

12 an assertion now along those terms?

13 A. If I had felt that it was not evidence that she was

14 giving from her own recollection and her own witnessing

15 of events, I don't believe I am liable to have said that

16 her statement was reliable.

17 MR UNDERWOOD: That's all I want to ask you about. Thank

18 you very much. Others may have other questions.

19 MR ADAIR: I think Mr Kerr is being recalled. I have

20 a number of issues that I want to deal with, with

21 Mr Kerr, but to avoid duplication, chairman, I would

22 like to reserve it until the recall.

23 MR McGRORY: I too, Mr Chairman, would have a number of

24 issues, but they can wait until the recall.

25 THE CHAIRMAN: Thank you.

1 MR EMMERSON: That, I think, represents the position of all

2 interested parties that I have communicated with, and

3 certainly is my position because, obviously, Mr Kerr is

4 likely to deal with a wide range of prosecutorial issues

5 relating to the inquiry.

6 THE CHAIRMAN: Thank you, Mr Emmerson. More to come then.

7 A. Thank you.

8 (The witness withdrew)

9 MR UNDERWOOD: Roger Davison, please.

10 Perhaps we can have on screen while we are waiting

11 [81398]. Thank you.

12 MS DINSMORE: Sorry, Mr Chairman, we apologise, we didn't

13 realise you had reconvened. There wasn't the usual

14 summons that comes over the tannoy. So I extend, on

15 behalf of my instructing solicitor, and my junior

16 counsel and myself, apology for our late arrival.

17 MR ROGER DAVISON (sworn)

18 Examination by MR UNDERWOOD

19 MR UNDERWOOD: Mr Davison, good morning.

20 A. Morning.

21 Q. Would you mind giving us your full names?

22 A. My full name is Roger Davison.

23 Q. If you have a look at the document we have got on

24 screen, if we can scroll through it, what I want to do

25 is get you to identify whether or not that's your

1 witness statement.

2 A. It certainly looks like it.

3 Q. And is it true?

4 A. Yes.

5 Q. I just want to ask you about one matter about it at the

6 moment, and that is on page [81402]. You deal at

7 paragraph 19 with a note of consultation, which you

8 signed and dated 24 October 1997, relating to

9 consultations with, amongst others, Tracey Clarke, and

10 you say there you can't recall those consultations. Is

11 that still the case?

12 A. That's correct.

13 Q. Perhaps we can look at [17591] to see if it assists you at

14 all, middle paragraph. This is the note. You say

15 there, more or less, because we have lost the last

16 quarter of a inch or so:

17 "On 17 October 1997 at 3.30pm I attended

18 a consultation between Mr Kerr and Witness A [as Tracey

19 Clarke was then called].

20 D/Superintendent Cooke, D/Sergeant

21 Bradley and D/Constable McAteer were also

22 present. Witness A was accompanied by her parents.

23 "Witness A is a pleasant looking reasonably dressed

24 young woman. As she walked into the room, she looked

25 worried and as soon as Gordon Kerr started to talk to

1 her she started to cry. She cried quite frequently

2 during the consultation but was able to relate the

3 events of the night more or less in accordance with her

4 statement. She had not had an opportunity to refresh

5 her memory."

6 What we are interested in is whether she was able to

7 recount what was in her statement, without reference to

8 the statement. Is what you are saying there that she

9 was not shown the statement during the consultation?

10 A. I think what I mean by that is that prior to the

11 consultation that day or on the previous day, and

12 during, but particularly prior, she had not been given

13 her statement to refresh her memory on.

14 Q. Can you help us at all about how the questioning went or

15 are you just doing this from what normally happened, if

16 I were to ask you about how consultations go.

17 A. Normally, when a witness would come, they would either

18 -- beforehand I would say to the police officer, "Have

19 you shown the witness the statement to refresh their

20 memory?", and the answer presumably is "yes" or "no".

21 I may or may not say to the witness, "Would you like

22 to refresh your memory?", sometimes it's better not.

23 And that's generally the way it goes.

24 I can't remember on this occasion, but I suppose

25 I know the way I write notes and when I say she had not

1 had an opportunity, I presume I must have said to

2 police: before she's come in through this door was she

3 given a chance to read over her statement? And I am

4 presuming that she -- and the police told me: no, she

5 hasn't.

6 Q. And you have also written, if we go further on in that

7 passage:

8 "She is reasonably articulate and seemed to be

9 telling the truth. If she were to give evidence, I

10 consider that she would come across as very truthful."

11 Again, helping us understand your note-making, as it

12 were, can you give us an idea of what impression she

13 must have made on you, for you to have written that?

14 A. Well, again, I can't remember the events. All I can do

15 is speculate that what I think I meant by that is that

16 you asked her a question, she understood the question,

17 she was able to articulate and answer that was

18 reasonably easy to understand, and that my impression of

19 her was that when she gave an answer, she was giving

20 a truthful answer.

21 Q. I think in due course the Panel may have to deal with

22 a contention by her that the witness statement which she

23 gave to the police, upon which this consultation was

24 based, was untrue in that it contained material which

25 either the police had got her to put in it, or somebody

1 else had got her to put in it, and to that extent it was

2 not, as it were, of her own volition or representing

3 what she saw or heard.

4 If that were the case, given your experience of

5 seeing witnesses, how do you think that might have come

6 across to you? Can you help us with that? If you

7 can't, you can't.

8 A. Well, the purpose of seeing Witness A was to see how

9 credible she was and how able she would be to give

10 evidence in court, and if she had said that during the

11 consultation that her statement wasn't accurate, she

12 would have said so, and I certainly would have taken

13 a note of that.

14 Q. Certainly. What I'm suggesting is she didn't say that

15 during the consultation?

16 A. I think that must be the case, otherwise I would have

17 said so in my note.

18 Q. Do you have experience of consultations where the

19 witness has subsequently said, "Well, what I told you

20 was untrue"?

21 A. Yes.

22 Q. And as at 1997, had you had very much experience of

23 assessing the credibility of witnesses?

24 A. I would have had a lot, yes.

25 MR UNDERWOOD: I think that is all I can usefully ask you at

1 this stage. Unless anybody else has any questions,

2 I think that is your evidence for today.

3 Examination by MR MALLON

4 MR MALLON: I would like a few. You have indicated that you

5 have experience in assessing the truth of witnesses. In

6 doing that, did you take Tracey Clarke through her

7 statement, or did senior counsel -- or did you do it

8 between you?

9 A. No, the note indicates that it was Gordon Kerr who was

10 doing the questioning. I can't recall whether

11 I interjected once or twice. But given the note,

12 I suspect that virtually all the questions were asked by

13 Mr Kerr. I may have intervened once or twice for

14 clarification or to ask a question that he hadn't asked.

15 But generally speaking, where we get a barrister to

16 conduct such a consultation, we leave it up to him. So

17 I don't think I would have asked many, if any,

18 questions.

19 Q. And the questions and the evidence that you would have

20 been giving would have been at, if I could call up

21 please, [00262], that is the statement of Witness A.

22 That statement was 10th May and that was the document

23 you primarily would have had access to?

24 A. Yes.

25 Q. You would have also had access to other police documents

1 and other matters related to the file. You would have

2 been well briefed before going in?

3 A. Well, I had the whole file and would have read the whole

4 file.

5 Q. And at that time did you have any reason to doubt the

6 accuracy of some of the information in that file on this

7 statement in particular?

8 THE CHAIRMAN: That is two questions. Try and break them

9 up.

10 MR MALLON: Yes. When you were going through this

11 statement, but you actually interviewed Tracey Clarke,

12 were you satisfied that the information contained in

13 this statement was accurate and verifiable?

14 A. I think the answer to that has to be no, and that's

15 partly why we were seeing the witness.

16 Q. But before seeing the witness, she makes certain

17 allegations of fact. Did you balance those against what

18 was known at the time to ascertain whether or not her

19 evidence was accurate?

20 A. Well, unfortunately I can't remember. All I can say is

21 that, as a general rule, when such consultations take

22 place, in preparation for the consultation, I will read

23 other statements. I may well speak to the police about

24 the witness and their impression of the witness.

25 And armed with that information, I will then ask

1 relevant questions so that if I know, for example, that

2 another witness had said something completely different,

3 the likelihood is that during the course of the

4 consultation I would say to the witness, "Now, another

5 witness says such and such, that contradicts you, what's

6 your answer to that; how can we explain this difference?

7 All I can really say is, as a general rule, I will

8 make sure I am well briefed and I'll put matters like

9 that to the witness. But in this case I can't recall

10 whether I had any particular worries or concerns about

11 the truthfulness of the contents of the statement.

12 Q. Would you have discussed that statement with the

13 investigating officers prior to setting up this

14 consultation?

15 A. Might have, but I don't know if I did on this occasion.

16 Q. You see, this statement contains a number of precise

17 allegations against Robert Atkinson.

18 Were you aware that she was saying in that statement

19 that Robert Atkinson -- I'm sorry. It's page [00264].

20 She said, quite clearly, in her statement that Allister

21 had indicated to her that Robert Atkinson had contacted

22 him on numerous occasions.

23 A. Can you show me where on the page it is?

24 Q. It's about one third up from the bottom. You will see

25 "C" in a box. Do you see it?

1 A. "Since then Allister has contacted me ..."

2 Q. Yes.

3 A. "He has told me Robbie Atkinson was ringing him everyday

4 ..."

5 Q. "Since then Allister has contacted me on numerous

6 occasions and he keeps asking me what I have said to the

7 police. He also told me that C [that is

8 Robert Atkinson] was ringing him everyday to keep him

9 up-to-date with the police investigation."

10 A very serious allegation against a police officer.

11 Did you check that out with telephone records that had

12 been volunteered by my client to the police?

13 A. I don't recall.

14 Q. If you had known that was not the case, definitely not

15 the case, would that have affected your assessment of

16 her credibility?

17 A. Yes.

18 Q. Now, when assessing a witness's credibility, is there

19 any way of doing it other than putting their evidence

20 against known facts and, therefore, satisfying yourself

21 of the veracity? Can you think of any other way of

22 doing it?

23 A. I will accept that's the main way of doing it, yes.

24 Q. And you didn't do it. Neither you nor Mr Kerr did this.

25 THE CHAIRMAN: Speaking for myself, I don't regard that as

1 being the only way. One assesses the person and listens

2 to the account that was given.

3 MR MALLON: I was going to deal with that, Chair. I accept

4 what you are saying.

5 THE CHAIRMAN: You are saying it's the only way. I do not

6 accept that myself.

7 MR MALLON: The only objective way is to weigh their

8 evidence against known facts to see if it is accurate.

9 You can make a subjective assessment, as you have

10 indicated, but it is not based on the objectivity of

11 weighing their facts against their statement.

12 THE CHAIRMAN: I hear what you say. I'm not sure that it

13 really helps us.

14 MR MALLON: Well, I had hoped it would.

15 THE CHAIRMAN: It begs the question that there is not an

16 objectivity of looking at a witness, his demeanour,

17 listening to what he says. That's not right.

18 MR MALLON: There is no way of knowing if you are correct.

19 You make a subjective assessment on a person's demeanour

20 and their credibility.

21 THE CHAIRMAN: Juries do it every day of the week.

22 MR MALLON: And in so doing there is another fact that I put

23 forward to you here. Were you aware that the police

24 believed that Allister Hanvey, on the night of this

25 incident, was wearing a silver Skanx jacket with orange

1 sleeves? Were you aware of that?

2 A. I do not know.

3 Q. That would have been material which would have been in

4 the file. It should have been in the file.

5 A. I don't know.

6 Q. Well, you did see that he did say to --

7 MR UNDERWOOD: I need to put that right. As far as I know,

8 a silver jacket from Skanx wasn't in any file until

9 about 2000. If my friend has reason to believe that

10 Mr Davison knew that there was a silver Skanx jacket

11 involved in 1997, I would be grateful for the reference.

12 THE CHAIRMAN: Thank you. Well, Mr Mallon, what do you say

13 to that?

14 MR MALLON: It may not have been identified as a "Skanx

15 jacket", but a silver jacket was contained in the

16 statements in and around this time, and subject to --

17 THE CHAIRMAN: In existence at the time of this interview?

18 MR MALLON: This interview -- 10 May 1997 was the date of

19 the incident. The date of this interview -- I'm sorry,

20 17 October 1997 -- I think, and I cannot be absolutely

21 certain of this -- I think they had at this time

22 interviewed a number of witnesses who gave clothing

23 colours to the police.

24 THE CHAIRMAN: One would have hoped you would have had this

25 material at your fingertips and be able to quote.

1 MR MALLON: I should have had, and I apologise to that.

2 But in respect of the allegations that were

3 contained here, and her evidence about clothing being

4 burned prior to this, during this time or subsequent to

5 this, has any evidence ever been produced to satisfy

6 that allegation that clothing was burned?

7 A. I have no knowledge of this whatsoever.

8 Q. If you find material in a statement which indicates to

9 you that a witness is inclined to make things up, do you

10 explore that with them?

11 A. Yes.

12 Q. Just about halfway through page [00264], dealing with

13 her relationship and contact with Allister Hanvey, she

14 said this:

15 "He wanted to know what I had told the police and as

16 I had not been seen by the police I made up a few things

17 to annoy him."

18 At that time did you make any enquiry of her as to

19 why she would tell lies to Allister Hanvey?

20 A. I cannot recall.

21 Q. Did you make any notes of the nature of the lies that

22 she told to Allister Hanvey?

23 A. I can't recall.

24 Q. She has admitted making things up in this statement.

25 Did that affect your assessment of her credibility?

1 A. I can't recall.

2 Q. If someone says to you, "I'm prone to make things up, to

3 upset people --"

4 THE CHAIRMAN: Forgive me. Having on an occasion made

5 things up is not the same as being prone to make things

6 up. That's right. Don't put a question on a false

7 premise, please.

8 MR MALLON: If a witness on the one occasion that you have

9 had her statement taken admits to making things up, can

10 you ascertain from that statement whether she's prone to

11 do it or this is a one-off occasion?

12 A. Well, you are asking a general question and the general

13 answer is that I would imagine -- and I can't remember

14 this consultation -- but I would imagine if an

15 individual says in a statement, "I made such and such

16 up", then it's likely that that would be questioned

17 during the consultation.

18 And it may well be that the individual came up with

19 a good explanation. And you have to remember that we

20 are talking about a time when feelings were running very

21 high. There were individuals who were prepared to give

22 evidence to the police at the time, and they may then

23 have come under pressure by individuals, by friends.

24 They may have felt for their own reasons they didn't

25 like the idea of giving evidence anymore, and they may

1 say to friends things that aren't true, while they are

2 actually telling the truth to police. A person may have

3 all sorts of motivations, especially in the sectarian

4 context of Portadown for saying things that aren't true

5 to their friends.

6 And there may be perfectly good explanations and it

7 may be that Gordon Kerr teased out those issues with the

8 witness, and I don't know. And I certainly don't think

9 that just because in Northern Ireland an individual, who

10 has given a statement to police, tells their friends

11 lies about that means they are prone to lying. I would

12 not accept that.

13 Q. That is not what I'm saying. I will try to be more

14 specific and direct you to it.

15 She said to you in a statement -- or to the police

16 in a statement -- that she was quite prepared to make

17 things up to annoy and to upset a person she named as

18 being involved in the assault at that time on Mr Hamill.

19 She also had a relationship with him. She was trying,

20 she said, to upset him.

21 THE CHAIRMAN: To "annoy him", were her words.

22 MR MALLON: Indeed, to annoy him, and in so doing she was

23 playing her own game. Do you accept that?

24 A. I can't go beyond this statement and my note. I can't

25 remember.

1 Q. Knowing that situation, do you remember whether that was

2 ever probed at all?

3 A. I do not remember.

4 Q. So it may entirely have been overlooked?

5 A. I have no idea.

6 THE CHAIRMAN: It may -- produces a meaningless answer; he

7 doesn't know.

8 MR MALLON: Certainly you do know that you haven't recorded

9 anything in respect of it. It's not the sort of thing

10 I would suggest to you that you would overlook if it had

11 been done.

12 A. The note of my consultation says very little, if

13 anything, about any specific questions that were asked

14 of the witness.

15 Q. And therefore your assessment of her honesty and her

16 integrity would not appear to have been, if your note is

17 to be the guide, very detailed or in depth. You see,

18 I have to suggest to you that if you had asked her and

19 checked the facts, you would not have found her to have

20 been an honest and a truthful witness.

21 THE CHAIRMAN: Is that the question?

22 MR MALLON: Yes.

23 THE CHAIRMAN: You had better wait for his answer, before

24 you sit down.

25 What is the answer, Mr Davison?

1 A. My difficulty is really memory, exactly.

2 THE CHAIRMAN: Thank you.

3 A. I can't recall.

4 MR MALLON: I don't mean to be rude to the witness in

5 sitting down. I apologise.

6 Examination by MR BERRY

7 MR BERRY: Since it's Mr Emmerson's witness, he may want to

8 go last. I think that has been the form so far. It's

9 Mr Emmerson's witness, so if I may ...

10 Could I have page [17591] back up, please?

11 At the time of this consultation with Witness A,

12 this was, clearly, a serious offence which was being

13 investigated, Mr Davison. Is that right?

14 A. Certainly.

15 Q. Is there any reason why your consultation would not be

16 thorough?

17 A. It should certainly have been thorough.

18 Q. Yes, and presumably, when you are dealing with something

19 like this, you and those with you would want to be as

20 thorough as possible?

21 A. I agree with that.

22 Q. And we can see that the consultation, I think, started

23 at about 3.30pm?

24 A. Yes.

25 Q. And there's no suggestion, or presumably you have no

1 recollection, of any pressure of time that would have

2 prevented you from being thorough during this

3 consultation?

4 A. I think that's correct.

5 Q. And you have already indicated that you had some

6 considerable experience in dealing with matters of this

7 type and also assessing witnesses by October 1997?

8 A. Yes.

9 Q. And one of the purposes was, clearly, to assess the

10 truthfulness of the statement of Witness A,

11 Tracey Clarke, that she gave to police in May 1997?

12 A. Yes.

13 Q. And that was obviously to test and find out whether she

14 would be a credible witness in any criminal proceedings?

15 A. Yes.

16 Q. And as part of that consultation, presumably, the

17 witness would have been tested in terms of assessing her

18 credibility by, for example, questioning her on

19 inconsistencies and matters of that nature?

20 A. One would imagine so.

21 Q. And again, there's nothing that would indicate to you

22 that that wouldn't have been done thoroughly?

23 A. I agree.

24 Q. And having assessed credibility and truthfulness,

25 another aspect that you would want to enquire about is

1 the witness's willingness to give evidence?

2 A. Yes.

3 Q. And again, in finding out about that, if a witness

4 expressed an unwillingness to give evidence, you would

5 be striving, would you not, to find out the reason why

6 that was?

7 A. Yes.

8 Q. And to find out the truth about why a witness would not

9 wish to give evidence?

10 A. Yes.

11 Q. And can I ask you, as part of that consultation process,

12 I have questioned you about testing the witness, but

13 presumably you also like to create an atmosphere where

14 a witness feels comfortable with you and those present

15 at the consultation?

16 A. Yes.

17 Q. And part of that is presumably designed so that they

18 feel they can tell you the truth about, first of all,

19 their evidence, and secondly, whether they have an

20 unwillingness to give evidence and why?

21 A. Yes.

22 Q. And you have written down an assessment in the note at

23 the middle of the page [17591] about the witness's

24 credibility in terms, and you have also recorded the

25 reasons why she was unwilling to give evidence. Isn't

1 that right?

2 A. Yes.

3 Q. Do you believe both those to be true as you have

4 recorded them, based on your experience?

5 A. I'm not sure I understand the question.

6 Q. Well, you have written down your assessment and you have

7 written down what she's told you. Let's take the

8 willingness to give evidence, or her unwillingness to

9 give evidence. She has told you why she was unwilling

10 to give evidence, because she loved Allister Hanvey, to

11 whom she was formerly engaged, and it was hard to give

12 evidence against the others because she knows them all;

13 when she told you that, did you believe her?

14 A. I can't recall.

15 MR BERRY: Thank you.

16 Examination by MR McCOMB

17 MR McCOMB: You did record in your statement that it's quite

18 rare to have a member of crime branch sitting in

19 a conference such as this.

20 A. Yes, that's right, yes.

21 Q. Have you any or can you recall -- if you can't just say

22 so -- why you think that that was Mr Cooke, I think, was

23 there present at that conference?

24 A. I can't recall why he was there. However, I can

25 speculate that it was because of the high profile nature

1 of the case.

2 Q. And as well as Mr Cooke, I understand there were two

3 other -- from your notes, certainly, there were two

4 other officers present throughout while Ms Clarke was

5 being interviewed?

6 A. Yes.

7 Q. And was one of those Mr McAteer, who in fact had taken

8 the statement which has been shown?

9 A. My note says so. I can't recall.

10 Q. Would it be normal for three officers?

11 A. Unusual.

12 Q. Again, perhaps can you assist in any way as to why -- if

13 you can recall, why there were those people present at

14 this conference?

15 A. I can't recall. All I can say is that our practice, as

16 a prosecution service, was that where we held such

17 a consultation, the officer involved would be in on the

18 consultation. I suspect, as they were both involved,

19 they both wanted to be in on it, and I would have had no

20 objections to that.

21 And Superintendent Cooke was there because of, as

22 I say, the high profile nature of the case, and the

23 interest that there was, and he had his reasons for

24 wanting to be there. And I, again, would have had no

25 objection to that.

1 Q. And despite your best efforts, I am sure, Mr Davison,

2 and Mr Kerr, to put Ms Clarke as her ease, you do record

3 that throughout she was tearful and crying; is that

4 correct?

5 A. That's correct, and that's not unusual. As I have said,

6 I am very experienced. I have done many of these

7 consultations and that is one of the things we are

8 looking for, particularly, for example, in a sex case

9 where you have a rape victim. I have been on many

10 a consultation where once we have got to the part where

11 they have to describe how they were raped, they just

12 burst into tears and they are unable to give their

13 evidence, and that then forms part of our assessment

14 whether we can prosecute or not. Because if they are

15 going to cry throughout the trial and not be able to say

16 anything, there is no point in bringing in the

17 prosecution. So that is why I would have recorded the

18 fact that she did a lot of crying.

19 Q. Of course that is, in a sense, a different circumstance

20 for a young woman or a woman --

21 A. I accept that is a different example.

22 Q. -- is remembering a ghastly experience to her

23 personally.

24 Thank you very much.

25 Examination by MR EMMERSON

1 MR EMMERSON: With the same general caveat that I entered in

2 relation to Mr Kerr's testimony, namely that there are

3 many broader issues with which Mr Davison will be

4 dealing with when he returns, may I take up one or two

5 of the issues thus far?

6 THE CHAIRMAN: Yes.

7 MR EMMERSON: Mr Davison, I want to ask you one or two

8 further questions about some of the propositions that

9 were put to you by Mr Mallon, who sits to my right.

10 For that purpose, could we please call up page

11 [00264] and the extract from the statement of

12 Tracey Clarke that he took you to, and could we focus in

13 particular on the last third of that statement?

14 On the extract we have on the screen, the second

15 full sentence reads:

16 "He [that is Allister] also told me that

17 Robbie Atkinson was ringing him everyday to keep him

18 up to date with the police investigation."

19 Do you see that passage?

20 A. Yes.

21 Q. And it was put to you by Mr Mallon, a few moments ago,

22 that had you been in a position to compare that with

23 a series of telephone records that his client provided

24 to the police, it would have enabled an objective

25 assessment to be made of Tracey Clarke's credibility in

1 respect of that passage of her statement, and it's in

2 relation to that proposition that I want to ask some

3 further questions, if I may.

4 First of all, do I take it from the answers you have

5 given so far that you do not now recall whether at the

6 date of the consultation on 17 October you were aware of

7 the existence in the possession of the police of any

8 telephone records that may have been provided by

9 Mr Atkinson?

10 A. I don't recall.

11 Q. Can you help us in this respect? Plainly, in the

12 sentence that your attention was taken to, there is no

13 indication of which telephone was used to make these

14 calls or on which telephone they were received --

15 mobile, landline, or a third party telephone; is that

16 right?

17 A. Yes.

18 Q. Did you have any independent information, as far as you

19 can recall, to indicate what it was Tracey Clarke was

20 claiming that Allister Hanvey had said about which of

21 the possible options for telephones, both for making and

22 receiving those calls?

23 A. I don't recall.

24 Q. With that range of possibilities in mind, do you accept

25 that even if you had had one set of telephone records

1 provided by Mr Atkinson, that would prove that this

2 statement was untrue?

3 A. What we have here is not her saying, "I have had phone

4 calls from Robbie Atkinson". We have her saying that

5 Allister has told her this.

6 Now, the issue is: did Allister tell her that or

7 not, not what the phone records prove. And therefore

8 the existence of phone records to me would have no

9 bearing whatsoever on her credibility.

10 Q. There were two elements to that, aren't there,

11 Mr Davison? One is you wouldn't know which phone had

12 made the call and which had received them. So if you

13 had seen any records, you wouldn't know they were the

14 ones that related to the landline or the mobile on which

15 the call had been made or received.

16 And secondly, quite independently of that, even if

17 the records could disprove the statement, it wouldn't

18 have any bearing on Tracey Clarke's credibility because

19 it wouldn't tell you whether or not she had been told

20 that by Alastair Hanvey?

21 A. Correct.

22 Q. So when it was suggested to you that that form of

23 objective verification was essential to a conscientious

24 assessment of the reliability of Tracey Clarke, do you

25 agree with that proposition from Mr Mallon or disagree

1 with it?

2 A. Well, I disagree with it.

3 Q. It was also suggested to you based upon that, that the

4 manner in which Tracey Clarke's credibility had been

5 assessed lacked the sort of in-depth objectivity that

6 professionalism would require; first of all, you don't

7 accept that proposition, I think?

8 A. That is correct.

9 Q. But it's right to say, is it not, that you were not the

10 only one making an assessment during the course of this

11 consultation of the credibility of Tracey Clarke's

12 account?

13 A. That is right. The reason we got a very experienced

14 prosecution barrister was because we were concerned that

15 there would be a very good analysis of the witness, and

16 he conducted the consultation.

17 While I'm saying I am very experienced and I have

18 run many trials myself in the Magistrates' Court, and

19 I think I've got a good ability to assess credibility,

20 we had Gordon Kerr there, and primarily we were asking

21 him to do the assessment and to do the consultation, and

22 I was making notes, and I feel we were being extremely

23 conscientious in the way we approached the case.

24 THE CHAIRMAN: In effect, was Mr Kerr running the

25 consultation?

1 A. After I did introductions, he ran the consultation and

2 he asked the questions.

3 MR EMMERSON: Just so that the Panel have the picture,

4 although consultations take place regularly where it's

5 necessary to assess the credibility of the witness, they

6 are not always conducted with counsel, are they?

7 A. That's correct.

8 Q. And certainly not with counsel of Mr Kerr's seniority

9 and experience?

10 A. It will very much depend on the case.

11 Q. But when they are conducted with counsel, does the DPP

12 representative present -- does the caseworker make his

13 or her own independent assessment of credibility?

14 A. Yes.

15 Q. So there is, if you like, an opportunity for two

16 independent and experienced individuals to assess

17 a witness's credibility and then to confer and see

18 whether their assessments coincide?

19 A. Yes.

20 Q. Have there been occasions where the assessments of

21 counsel and lawyers within the department do not

22 coincide?

23 A. Yes.

24 Q. And when there are such occasions, do you record the

25 difference of view?

1 A. Yes.

2 Q. So can we take it from the fact that no such difference

3 of view was recorded, that you discussed your

4 independent assessments after you had conducted the

5 consultation and you agreed, broadly speaking, that this

6 was a reliable witness, as far as you could tell?

7 A. I can't recall if I discussed it with Mr Kerr

8 afterwards. It is not in the note and I simply don't

9 recall. However, I imagine that if I had discussed it

10 and found that his view was different to mine, I would

11 most certainly have recorded that.

12 Q. Finally, you were asked just a moment ago by Mr Berry

13 about the presence of Detective Superintendent Cooke.

14 A. Yes.

15 Q. And you made the observation that it was not routine,

16 indeed, it was uncommon for an officer of that level of

17 seniority within the crime branch to attend

18 a consultation, but it could happen in particularly

19 sensitive or high profile cases?

20 A. Yes.

21 Q. And he would have been there as a representative of the

22 Chief Constable?

23 A. Yes.

24 Q. In a situation where a senior officer attends a

25 consultation, does it happen on occasions that they may

1 also express a view afterwards about any obvious

2 credibility issues?

3 A. They may well do so, yes.

4 MR EMMERSON: And were they to have done so in a manner that

5 suggested there were doubts about the credibility of

6 Tracey Clarke's account, would you have recorded that in

7 your own memorandum?

8 A. Almost certainly.

9 MR UNDERWOOD: I have no re-examination, but may I just make

10 an observation while Mr Davison is here? It was

11 suggested to him that there was evidence before him

12 which contradicted what was said in the statement, and

13 which went to the question of a silver Skanx jacket.

14 This is the point I raised while Mr Mallon was

15 cross-examining. Can I just tell you the position on

16 this, so that there's no unfairness to Mr Davison?

17 At the stage when this consultation took place,

18 there was a witness statement from Jonathan Wright, who

19 indeed was part of the consultation process. That

20 witness statement attributed a grey jacket to Mr Hanvey,

21 with orange stripes on the sleeves.

22 There was evidence by way of a statement from

23 Constable Warnock that he saw Allister Hanvey wearing

24 a jacket with grey sleeves. As far as I am aware, at

25 that stage, nobody had attributed a silver jacket to Mr

1 Hanvey nor a jacket from Skanx. All of that came out

2 three years later, and of course this will all be gone

3 into when we look at the prosecution process in the

4 round, but I wouldn't want it unfairly to be thought of

5 Mr Davison that he had material which went to a silver

6 jacket, which in some way undermined this statement.

7 What there was that in fact might have supported

8 this statement was that, contrasted to those pieces of

9 evidence about a silver -- or rather a grey jacket --

10 was that when interviewed under caution Mr Hanvey said

11 he only owned one jacket and it was a black one.

12 As I say, no questions about that, but I hope that

13 doesn't leave any question mark hanging over Mr Davison,

14 who now can't remember what he saw, that he had a load

15 of evidence that he didn't take into account on this

16 particular point. With that, unless there are any other

17 observations.

18 MR ADAIR: Sir, I am also reserving my position, if I may,

19 to avoid duplication in respect of a number of issues.

20 I think Mr McGrory is the same.

21 THE CHAIRMAN: Mr Mallon, you weren't here when Mr Kerr gave

22 evidence. As I understand it, you will have the

23 opportunity therefore when he comes back again to ask

24 him what he says about his assessment.

25 MR MALLON: Very much obliged.

1 THE CHAIRMAN: Thank you very much.

2 MR UNDERWOOD: Thank you very much, Mr Davison. I'm sorry

3 we are calling you in two bites, but thank you very much

4 for coming today.

5 (The witness withdrew)

6 MR UNDERWOOD: Linda Wilson, please.

7 MS LINDA WILSON (sworn)

8 Examination by MR UNDERWOOD

9 MR UNDERWOOD: Good morning.

10 A. Good morning.

11 Q. Can you tell us your full names?

12 A. Linda McMullen.

13 Q. We know you as Linda Wilson. I think you got married

14 since we saw your statement first.

15 A. Yes.

16 Q. Could you please look at page [81382], which will come

17 up on the screen. If we scroll through this, what

18 I want to do is see if you can identify it as your

19 statement.

20 A. Yes.

21 Q. Is that true?

22 A. Yes.

23 Q. So what we gather from paragraph 3 on the first page is

24 that in April 1997 you were working in the clothing shop

25 Paranoid?

1 A. Yes.

2 Q. I want to ask you about the running of that shop a little,

3 if I may. We know that there's a question about whether

4 somebody called Tracey Clarke bought a jacket on

5 a layaway system. Can you tell us how the layaway

6 system worked there?

7 A. An initial deposit would have been left over. They

8 would have been given a payment card. Their name would

9 have been in a book, and every time they came in and

10 made a payment, it would have been marked down in the

11 book, marked off their card. Whenever it was paid, then

12 they got to pick up the item.

13 Q. What happened to the card once the money was paid off?

14 Did that come back to you, or was the person keeping

15 that?

16 A. I am not really sure. They could have kept it or left

17 it with us, whatever. There was no real system for

18 that.

19 Q. In terms of the payment book, there was one book for all

20 the layaways, was there?

21 A. As far as I remember, yes -- no, sorry, it depends on

22 how many there was. The book may have held 20 or 30.

23 If there was 60 left over, there would have been two

24 books.

25 Q. Fine. Can you give us some idea what the book looked

1 like? Was it a large book, a small book with a few

2 pages, or what?

3 A. I think it was more like a duplicate book, you know the

4 one with the paper on the inside that you would have

5 made two copies.

6 Q. So if at any one time there were ten people laying away

7 clothing, they would all be recorded in that book?

8 A. Yes.

9 Q. And once they paid off, a line was drawn through it?

10 A. Yes.

11 Q. But the book would be kept, would it, at the end of

12 that?

13 A. Not always. If the book was finished, it would have

14 been thrown away. I can't remember what happened.

15 Q. And what happened to an item of clothing that was the

16 subject of a layaway? Was it marked up as not to be

17 sold?

18 A. Yes. Whatever number they were given in the book and

19 whatever number was on their payment card, would have

20 been attached with a number over the hanger or

21 something, with that number on it, so that you knew that

22 that was what -- say it was number 60, it applied to

23 number 60 in the book, and it was then hung up in the

24 store.

25 Q. I didn't hear the last part?

1 A. It was then hung up in the store.

2 Q. It was still on display?

3 A. No, it was in the store.

4 Q. Storage as opposed to the shop?

5 A. Yes.

6 Q. You tell us in your paragraph 4, the last part of that,

7 you didn't know a number of people there, including

8 Tracey Clarke?

9 A. No.

10 Q. And you say you didn't know anyone called

11 Allister Hanvey?

12 A. No.

13 Q. Is that still the position, that you don't recognise,

14 apart from what you have been asked about in this, the

15 name Tracey Clarke?

16 A. No.

17 Q. If we go over the page to [81383], paragraph 7, you say,

18 in the second sentence:

19 "I have been informed that a wholesaler recalls

20 selling to Paranoid a silver [that should be Skanx]

21 designer jacket with orange stripes down the arms." You

22 "do not recall stocking this jacket because there were many

23 different types of jackets available."

24 Can you help us with whether you remember a silver

25 jacket or a grey jacket at all?

1 A. Yes, there was lots of -- the jackets would have been

2 silver, airforce blue, black. Those were the main

3 colours. There was some silver jackets there, but

4 I can't remember what they were like, really.

5 Q. Fair enough. Do you recall laying away any silver

6 jacket?

7 A. No.

8 Q. Do you recall laying away the blue Daniel Poole jackets?

9 A. I probably did, but I don't recall doing it because

10 there was quite of lot of them. They were quite

11 popular.

12 Q. Do you recall a girl who worked in Going Places laying

13 away a jacket?

14 A. No.

15 Q. Do you recall having sold a jacket which then came back

16 with its new owner needing a patch on its sleeve?

17 A. No.

18 Q. Can you help us about prices? Can you recall a silver

19 jacket being sold at the end of 1996 and what sort of

20 price it might have been?

21 A. The jackets would have been anything from £70 upwards.

22 They could have been as much as £150. It just depended

23 on the make.

24 MR UNDERWOOD: Very well. That is all the questioning

25 I have for you. It may be that other people have some

1 questions.

2 MR ADAIR: No questions.

3 Examination by MR MALLON

4 MR MALLON: In relation to your original statement, if I can

5 just call that up -- I don't seem to have it on a page

6 -- [17360] -- you seem to have a fair recollection for

7 a number of types of jacket in your original statement.

8 That is the statement that you made to the police on

9 10th April 2001.

10 You were able to mention, for instance, whilst

11 working for Paranoid in Portadown:

12 "... the shop sold all designer labels such as

13 Calvin Klein, Elle clothing, Ralph Lauren, Josef, NASA

14 and Destroy. NASA and Destroy would be more ravy

15 labels."

16 You don't seem to have any recollection at all of

17 Skanx. Was that because you never handled it?

18 A. I possibly did. I only worked there on Saturdays.

19 There was quite a big range of labels. Those would have

20 been the bigger labels.

21 Q. Do you ever remember a name of Skanx?

22 A. Yes, I remember the name.

23 Q. Do you remember what colour the jackets were?

24 A. I don't.

25 Q. Now, in relation to putting jackets away, you can

1 recollect putting Daniel Poole jackets away? Did

2 I understand you right when you say that?

3 A. No, I said I may have done. I can't recollect actually

4 doing it, but it is possible that I have done it.

5 Q. You said they were a very popular jacket. What do you

6 mean by that? Were they in big demand?

7 A. They would have been.

8 Q. They were in and out of the shop fairly quickly?

9 A. Aye.

10 Q. And this was coming up to Christmas 1996/1997?

11 A. Yes.

12 Q. So in Christmas 1996 Daniel Poole jackets were in the

13 shop?

14 A. Yes.

15 Q. And you can recollect that?

16 A. Yes.

17 Q. Can you have any recollection of when the Skanx jackets

18 were in the shop?

19 A. Not particularly. They could have been there at the

20 same time, but I don't know.

21 Q. They could have been?

22 A. They could have been, but I don't recollect it.

23 Q. Did you only work in the one Paranoid shop?

24 A. There was only one Paranoid shop at the time. They also

25 had two shops in Banbridge: one was Manhattan and one

1 was called Gatsby, and I would have worked in those, but

2 there was only one Paranoid.

3 Q. One Paranoid and the other two have different names, but

4 they were all part of the same, stocking presumably

5 similar materials?

6 A. No, different.

7 Q. Each one stocking different -- so some might have

8 stocked Skanx jackets, some might not; some Daniel

9 Poole, some not --

10 A. No, that would just have been Paranoid.

11 Q. Now, you say in that:

12 "I do not know Tracey Clarke but I recognise... Hanvey

13 ..."

14 Can you tell me and the Chair why you would

15 recognise the name "Hanvey"?

16 A. I don't know. Like I say, I recognised the surname.

17 I don't know why I recognised it, but I did.

18 Q. You can't give us any help on that at all?

19 A. I can't, honestly.

20 MR MALLON: That's fine. Thank you.

21 MR McGRORY: One question occurs to me arising from the

22 questions from Mr Mallon. If I can seek some

23 clarification, please.

24 In that statement you were shown, [17360], you

25 referred to various makes of clothing and you referred

1 to NASA and Destroy as more "ravy" labels?

2 A. Yes.

3 Q. You couldn't explain what you meant by a "ravy" label?

4 A. People going out clubbing would have wore more NASA and

5 Destroy. The other labels would have been more dressy

6 that you could have worn casual every day. But NASA and

7 Destroy would have been more going out, sort of thing.

8 Q. If there was a silver jacket with orange stripes on the

9 sleeve, would you put that in the class of a ravy

10 jacket?

11 A. Yes.

12 MR McGRORY: Thank you.

13 MR UNDERWOOD: I have nothing arising, thank you.

14 THE CHAIRMAN: Thank you.

15 MR UNDERWOOD: Mrs McMullen, thank you. I'm sorry you have

16 been kept hanging around.

17 A. That's okay.

18 (The witness withdrew)

19 MR UNDERWOOD: Sir, that concludes the witnesses we have for

20 today. We next go to a group of witnesses who, as it

21 were, coalesce around Andrea McKee. I was proposing to

22 open the way that evidence is likely to come out and

23 take you to a number of documents about that. I suspect

24 there's probably about an hour's worth in that. I am

25 very happy to do that now or whatever.

1 THE CHAIRMAN: Do you want to make a start now and we will

2 break off for lunch.

3 MR UNDERWOOD: Before I do this, I want to mention a point

4 that has been raised with me on behalf of the Atkinsons,

5 that the intention of course was that we would have had

6 Tracey Clarke by now, and all the witnesses who deal

7 directly with Tracey Clarke, and that Andrea McKee would

8 naturally follow on from that group. For what may turn

9 out to be medical reasons -- of course, we haven't seen

10 Tracey Clarke yet -- and I'm being urged to bear in mind

11 a representation that we shouldn't hear Andrea McKee

12 until we have heard Tracey Clarke.

13 I know that the medical situation in respect of

14 Tracey Clarke is not going to be resolved in the

15 immediate future, and it may well be that there ought to

16 be a decision made at this stage about whether

17 Andrea McKee should be called before Tracey Clarke.

18 I don't know whether my friends are in a position to

19 make submissions on that now, or if I'm sandbagging them

20 by asking that.

21 MS DINSMORE: I should say, Mr Chair, the issue arises from

22 ourselves. I raised with Mr Underwood this morning that

23 we very much have a great deal of concern in relation to

24 dealing with the witness of Andrea McKee prior to

25 an opportunity to have heard from Tracey Clarke. It is

1 common case that Tracey Clarke is the foundation stone,

2 so to speak, and that Andrea McKee has little or no

3 knowledge within her own remit, and that she is

4 a conduit, largely, in relation to matters which

5 allegedly were told to her by Tracey Clarke.

6 Now, my friend very properly timetabled and

7 choreographed the outline of the witnesses, and quite

8 properly and logically had placed Tracey Clarke first,

9 and it flowed naturally then in relation to the other

10 witnesses which my friend is going to refer to in this

11 band which he is opening.

12 Now, what we say to you, Mr Chairman, is we are very

13 mindful of the expediency of the Inquiry. We are very

14 mindful that no time should be wasted and I make two

15 points in relation to that. One is if the matter

16 progresses, hearing Andrea McKee, without having had the

17 opportunity, or without even having the opportunity to

18 know whether or not hearing Tracey Clarke is going to be

19 an option, we would say, at best, that can be a waste,

20 to some extent, of Inquiry time because, inevitably,

21 then Andrea McKee would have to be recalled at some

22 stage after we hear from Tracey Clarke.

23 THE CHAIRMAN: I'm not quite sure. It would depend,

24 wouldn't it, on what Tracey Clarke might have to say.

25 She might have to be recalled.

1 Do you mind if I just ask Mr McComb when the medical

2 examination is to take place?

3 MR McCOMB: My recollection, sir, was that I was instructed

4 that there was an appointment made for the 12th in the

5 afternoon.

6 THE CHAIRMAN: Yes.

7 MR McCOMB: Which would be this Thursday.

8 THE CHAIRMAN: Yes.

9 MS DINSMORE: What I suggested to my friend this morning,

10 and of course the matter is entirely in your hands,

11 Mr Chairman, in light of this quandary that we have

12 found ourselves in with Tracey Clarke, perhaps a little

13 capsule of the evidence which this Inquiry is to hear,

14 which does not concern any matter which relates to

15 Tracey Clarke should be rescheduled, and that time could

16 be used to deal with that, if my friend thought fit to

17 do so, that we didn't have downtime for the Inquiry.

18 The time could be usefully used until we can at least

19 ascertain the position regarding Tracey Clarke.

20 But at the moment, our respectful submission is it

21 is -- someone said this morning about the core, and

22 there's no doubt about the way this Inquiry has been

23 progressing, that everyone is wedded to this core of

24 fairness. We would say, quite frankly, it is not fair

25 to ask, particularly us -- these are crucial witnesses

1 for our client -- to deal with Andrea McKee without even

2 knowing whether we are going to hear from Tracey Clarke,

3 never mind had an opportunity to challenge her.

4 THE CHAIRMAN: Well, you realise, of course, that we are not

5 tied to what Andrea McKee may say in the witness box, if

6 she gives evidence. We shall look at what she has said

7 in any statement or statements. And you know of course

8 what she said or not, as the case may be.

9 MS DINSMORE: Well, I'm fully appraised and have no doubt

10 that each and every one of you are well aware of the

11 pack of cards of statements of both Tracey Clarke and

12 Andrea McKee have made, and there is a wealth of

13 statements. The fact that there is a wealth of

14 statements, Mr Chairman, is a reason why it's all the

15 more important that we have a fair crack at the whip of

16 challenging the credibility of that witness, of each of

17 those witnesses in fact, and particularly being able

18 to -- bearing in mind that without Tracey Clarke, there

19 is no Andrea McKee. She has no direct knowledge --

20 THE CHAIRMAN: Forgive me. There is an Andrea McKee --

21 whether or not Tracey Clarke gives evidence.

22 MS DINSMORE: Sorry, that was loosely put, and I apologise

23 for you. What I'm saying to you, Mr Chairman, is this.

24 Every allegation which we deny, which is of substance

25 and absolutely crucial to each of my clients, that

1 Andrea McKee gives evidence about, it all relates to

2 things that Tracey Clarke has told her, and therefore,

3 we say that one cannot properly deal with Andrea McKee

4 without -- and one appreciates there may come a day, and

5 we will have to face it, that Tracey Clarke may not be

6 able to give evidence at all, in which case then,

7 legally, I am in a totally different position.

8 But as it stands at the moment, there is the

9 potential that Tracey Clarke will give evidence to this

10 Inquiry and my only application is that the timetable be

11 rearranged to facilitate the sequence of that,

12 Mr Chairman.

13 THE CHAIRMAN: I must ask Mr Underwood if there is any

14 prospect of rescheduling evidence.

15 MR BERRY: I wonder, Mr Chairman, might I be permitted to

16 address you? I appear for Andrea McKee, and may I make

17 some points to the Panel?

18 First of all, you will forgive me for making

19 a comment, but this application is extremely late in the

20 day. Andrea McKee is due to get on a plane to come, and

21 she has probably left for the airport by now. We have

22 known about the difficulties -- and I put it as

23 neutrally as I can -- in respect of Tracey Clarke for

24 some time.

25 Andrea McKee has been informed that she is to attend

1 tomorrow and the day after to give evidence to the

2 Inquiry. She works. She has a family. She has other

3 commitments, but she has made arrangements to attend,

4 and it's most unsatisfactory, if I can put it like that,

5 that this application is made. We respectfully urge you

6 to hear her evidence. There is no good reason why her

7 evidence can't be dealt with at this time.

8 The Tracey Clarke position is a fluid position. We

9 ultimately don't know what we will be faced with in that

10 regard, but we know that Andrea McKee is coming and is

11 ready to give evidence, and her evidence, we

12 respectfully submit, should be heard.

13 THE CHAIRMAN: It seems to me the position in relation to

14 Tracey Clarke is likely to be one of two things:

15 accepting what she said or simply saying none of it is

16 true.

17 MR BERRY: Yes.

18 THE CHAIRMAN: There's probably not an in between.

19 MR BERRY: Yes.

20 THE CHAIRMAN: Yes, thank you.

21 Mr Underwood, is that correct, that it's likely to

22 be either yes, it was or no, it wasn't?

23 MR UNDERWOOD: It appears that way, sir.

24 THE CHAIRMAN: There's no real "Well yes, but..." is there?

25 MR UNDERWOOD: We haven't seen one yet.

1 Can I say some general things? Of course one

2 subscribes to the principle of fairness, and in a sense

3 one is balancing fairness to the Atkinsons against

4 fairness to Andrea McKee in the competing submissions

5 you have heard already.

6 I would unhesitatingly say if it was a matter of

7 being unfair to one at the expense of the other, one

8 ought to be unfair to Andrea McKee, because she is not

9 the one facing allegations of conspiracy to pervert the

10 course of justice. However, that is not the situation.

11 The position is that Andrea McKee's evidence goes,

12 broadly speaking, to two issues. The first is the

13 provenance and the circumstances surrounding the witness

14 statement which Tracey Clarke gave. Now, in relation to

15 the Atkinsons, that's hearsay. Of course one takes it

16 into account, but it is not direct evidence of what she

17 had dealings with.

18 Contrarily, though, the second point to which her

19 evidence goes is direct evidence of dealings with the

20 Atkinsons because in that her evidence goes to whether

21 she entered into a conspiracy with Robert Atkinson to

22 cover up a phone call.

23 If one is determining the fairness of the running

24 order, as it were, in terms of the direct evidence which

25 she gives against Mr Atkinson, Tracey Clarke's evidence

1 is neither here nor there, one might say. Of course all

2 the witnesses are interconnected to some extent, and it

3 may well be that, holding it all in one's head as one

4 does, one can't form a view about the credibility of

5 Tracey Clarke until one has heard all the evidence of

6 Andrea McKee, and perhaps vice versa.

7 But it is by no means the situation that was set out

8 on behalf of the Atkinsons, that you can't, as a matter

9 of fairness, hear Andrea McKee until you have

10 determined, or heard at least, Tracey Clarke's evidence,

11 because on that important point where she gives direct

12 evidence, contrary to the Atkinsons, Tracey Clarke's

13 evidence is immaterial, we would say.

14 So although we have scheduled the witness list in

15 this way, ideally to hear Tracey Clarke's evidence and

16 the evidence of those surrounding her first, it's by no

17 means clear that that's the only fair way of doing it.

18 There is also this, of course. There's the

19 possibility of recalling Andrea McKee, not one I would

20 advance with any enthusiasm, but if fairness demands it,

21 that's something that would be considered.

22 So that's what we say in terms of fairness. That

23 far from dictating that Tracey Clarke ought to come

24 before Andrea McKee, it may be better the other way

25 round for the Atkinsons.

1 On a practical note, and again compared with

2 fairness, practicality takes second place, but -- and

3 although I understand my friend's submission on behalf

4 of the Atkinsons, that it might be possible to move some

5 other witnesses up, in practical terms, it wouldn't be,

6 I am afraid. We would lose time.

7 As I say, that is a minor factor compared with

8 fairness, but insofar as it is a factor, that is the

9 answer.

10 THE CHAIRMAN: It is not trivial because it is a very costly

11 factor.

12 MR UNDERWOOD: Certainly. For what it's worth, I advance

13 it. So our submissions are, therefore, that one could

14 carry on as we are, with, if necessary, the possibility

15 of recalling Andrea McKee.

16 THE CHAIRMAN: Ms Dinsmore, we shall carry on. I think

17 Mr Berry's point is well made, that you had much longer

18 notice of this potential problem, and it's only raised

19 today, and the lady is probably already on the plane.

20 If, and I say if, it should become necessary to

21 recall Andrea McKee, then that will have to be done.

22 But it seems to me the arguments about fairness are very

23 finely balanced.

24 MS DINSMORE: I am in your hands, Mr chairman, and I am much

25 obliged for the clear indication that there is a view

1 being taken that a right to recall will be a live issue.

2 THE CHAIRMAN: No, I haven't said that. I have said if it

3 should be necessary, she will be recalled. That's not

4 the same as saying there is a right to recall her if you

5 simply say, "I would like her to be recalled". It would

6 have to be justified.

7 MS DINSMORE: I fully appreciate that, Mr Chairman. But one

8 thing we can be clear about is no book is closed in

9 relation to the recall, provided it's justified.

10 THE CHAIRMAN: Yes, Mr Underwood.

11 MR UNDERWOOD: As I have said, if you remember, sir, the

12 next group of witnesses leads on naturally from the last

13 group and does concern the evidence to be given by

14 Andrea McKee.

15 To set her in context, then, you will recall that it

16 was she who took her niece by marriage, Tracey Clarke,

17 to the police on 9 May 1997, and it was then that

18 Tracey Clarke gave the statement concerning the events

19 of the night, which we have already seen, which dealt

20 with, amongst other things, the alleged assistance given

21 by Robert Atkinson to Allister Hanvey.

22 On that issue, what Andrea McKee can assist on is

23 what was said to her, and perhaps to others, by

24 Tracey Clarke before and after she gave that statement.

25 As I have just said, she is also important for

1 another distinct reason. Once Robert Atkinson was

2 eventually taxed with the allegation that he had

3 assisted Allister Hanvey, which was in September 1997,

4 he, that is Robert Atkinson, arranged for Andrea McKee

5 and her husband, Michael, to give statements to the

6 effect that Michael McKee had made the telephone call at

7 8.30-odd on 27th April, rather than one of the

8 Atkinsons. It was as a result of those statements,

9 which have loosely been called "alibi statements", that

10 no action was taken against Mr Atkinson at that stage.

11 It might be helpful to look at those to see what it

12 is that the McKees had said at that stage. If we start

13 off at page [34603].

14 I am helpfully reminded about the caveat that one

15 can't lead in this Inquiry evidence of convictions and

16 previous convictions. Can I clarify my understanding of

17 that?

18 Of course Mrs McKee and Mr McKee subsequently were

19 convicted of the conspiracy which they admitted to, as

20 indeed Mr Hobson was convicted of affray. I take it,

21 but perhaps I can clarify this with you, sir, that those

22 are not caught by the rubric of previous convictions in

23 this sense.

24 THE CHAIRMAN: It's very much within the ambit of the

25 present inquiry.

1 MR UNDERWOOD: Thank you. So taking [34603] up then,

2 perhaps we could split the page and have [34604] at the

3 same time.

4 Picking it up -- if we can highlight the last half

5 of [34603] and highlight all the text on [34604] -- this

6 is Mr McKee's statement, given on 9 October 1997.

7 On the first page, about three lines in of the

8 highlighted section:

9 "My wife and I sat in Eleanor's house chatting. As

10 on regular occasions we stayed that night. I get up

11 early every morning including Sundays as I open the gym

12 at approximately 9 am. On getting up on this Sunday

13 morning [that is 27 April 1997] with Andrea, as usual we

14 were treated to our breakfast. We were chatting with

15 Eleanor and she had mentioned that there had been a row

16 involving the ones coming from the Coach. I have

17 a niece, Tracey Clarke. I was aware that she regularly

18 went to the Coach and I was concerned regarding her

19 safety. Tracey is my sister's daughter. Although

20 I have little contact with my sister I do have contact

21 with Tracey. Tracey had met an Allister Hanvey at my

22 club and they had got engaged. As a result of my

23 concern I rang Allister Hanvey's home. I got Hanvey's

24 phone number from my wife. I spoke to Kenny Hanvey, who

25 I had also met through my club. I asked if Tracey was

1 at his house. He told me she wasn't and I said that was

2 fine. I didn't ask about Allister nor did I mention

3 there was trouble in the town centre. I didn't ring my

4 sister, Irene's house because at that stage we weren't

5 on talking terms. After the phone call I left the

6 Atkinsons' house with Andrea and we both went to the

7 club. I believe Andrea would have heard me talking on

8 the phone. I have been shown an itemised bill marked

9 MI14. I have been directed to a phone call on

10 27th April 1997 at 8.37 am. I can't state if the number [blank]

11 is that of Hanvey's however, the call was made some time

12 before 9 am. At no stage on the morning on 27th April

13 1997, nor at any time in fact, during that visit

14 did I see or speak to Robert Atkinson."

15 So there is Mr McKee's "alibi statement" is what

16 it's called.

17 Then if we go to page [09200] and split the page

18 with [09201], and if we pick up the second paragraph of

19 [09200] and all of the other page, 29th October 1997

20 this time. It is worth mentioning perhaps that the

21 officer taking this is Michael Irwin.

22 Picking it up on [09200]:

23 "We stayed overnight in the house and as usual we

24 would have got up early to allow Michael to open up the

25 club. On getting up I didn't see Robert Atkinson. We

1 were getting our breakfast and Eleanor had mentioned to

2 Michael that there had been a row in the town centre.

3 I didn't pay that much attention. Michael asked me for

4 Allister Hanvey's home telephone number. Allister had

5 been a member of the Tae Kwon Do club and he had had

6 a relationship with Tracey Clarke, who was Michael's

7 niece. I was able to give him the phone number from

8 memory..."

9 And she sets it out:

10 "I would know a lot of the members' phone numbers as

11 I would assist in making arrangements by phone to

12 members regarding any events or club business. I saw

13 Michael on the phone but I couldn't recall what was

14 being said. When he returned to the kitchen, the phone

15 being in the hall, he stated that Tracey wasn't there.

16 There was no discussion of where she might be. After

17 a short period we left and went to the club. Michael

18 had said he would catch up with her some time later that

19 day. I can't recall if Michael did see Tracey on that

20 date."

21 Then if we go to page [14956], and I think we can

22 just have that as the entire page, this is a statement

23 which she then gave on 20th June 2000. The

24 circumstances of that were that Mr Irwin and Detective

25 Chief Superintendent McBurney decided in June 2000 that

1 it would be worth reinterviewing her and travelled to

2 Wales to do it. She was not under caution.

3 If we pick it up from the top of the part that's

4 highlighted there:

5 "I have been shown a witness statement made by

6 myself and dated 29 October 1997. I can now state that

7 parts of this statement are untrue. This refers to the

8 parts in which I stated that I stayed at

9 Robert Atkinson's house and was present when a phone

10 call was made to the home of Allister Hanvey. This did

11 not occur. On that night I was actually in my home

12 address [which is set out] with my husband, Michael. We

13 didn't go out that night and I believe we were watching

14 boxing on Sky television. I believe it was Prince Naseem

15 and it was a subscriber match. We owned our own Sky

16 system and the card was in my name. I can't recall any

17 details regarding the Sky number but all we had to do

18 was phone the number on the television. My telephone

19 number at that time was..."

20 Pausing there, the question whether she was able to

21 watch boxing on Sky television is a matter that then

22 became controversial, and it may be helpful to keep it

23 in mind because that is a story that varies somewhat as

24 the statements progress:

25 "What actually happened was that Michael was

1 approached by Robert Atkinson. I can't recall if

2 I spoke to Robert Atkinson but I became aware that he

3 was looking to cover a phone call that was made early in

4 the morning to Allister Hanvey's house. Michael told me

5 that he wasn't happy about covering for Robert but it

6 was arranged for him to go to the police station with

7 his solicitor, Mr Sean O'Hagan. As a result of Michael

8 going to the police station I then had to go and speak

9 to police. This was in Sean O'Hagan's office. Michael

10 told me what he had told the police and I then had to go

11 and support him. I didn't like what I had to do but I

12 felt I had to do it for Michael. I also know that

13 Michael didn't want to be involved but he felt obliged

14 to Robert. We didn't pay for the solicitor,

15 Mr S O'Hagan and I believe this was paid for by

16 Robert Atkinson."

17 Pausing there, as far as we can ascertain, nobody

18 paid for it:

19 "I can't recall discussing this matter with anybody

20 else at any other time."

21 If we go over the page to [14957]:

22 "The phone call that I refer to was around the time

23 of the death of Robert Hamill. This is the only time

24 that I have been asked to do such an action and I know

25 it was wrong."

1 So there she is, not under caution, admitting what

2 she accepted to have been a wrongful act.

3 And if we go to page [14908], we see that she was

4 subsequently asked to make any witness statement, again

5 not under caution, at some length. This statement, as

6 we will see, is made on 25 October 2000 and is 16 pages

7 long.

8 Just picking up the first couple of sentences:

9 "I make this statement further to my statement dated

10 20 June 2000. I have been asked to clarify a number of

11 issues in relation to what I have said in that statement

12 and to answer a number of further questions which I have

13 been asked."

14 If we go over to page [14909] and take up the second

15 half of the page. We have missed a bit of a line which

16 says:

17 "I first met Robert and Eleanor Atkinson quite a few

18 number of years ago when their daughter attended a class

19 which was run by Michael at the Killycomaine Community

20 Centre in Portadown. I think that [she] was about [and

21 she gives the age]... Her parents would have delivered

22 and collected her. I remember that Robert Atkinson once

23 asked Michael was he the son of [another] McKee who

24 Robert knew at the Mahon Road Army Camp. Michael's

25 father was a Captain in the UDR many years before that

1 but it was through this that Robert Atkinson and Michael

2 became friends. [That other] McKee died, I believe, in

3 1997. As their friendship developed over time, Robert

4 and Eleanor Atkinson began attending weekend tournaments

5 and this is how I became friendly with them. I remember

6 that Michael actually got the unit in Brownstown

7 Business Centre through Robert Atkinson who was driving

8 for Bobby Jameson who owned the complex. Jameson rented

9 out units at the Business Centre and Robert Atkinson

10 actually introduced Michael to Bobby Jameson. On

11 occasions we would meet up socially and occasionally we

12 would have gone to their house on [given an address] for

13 drinks. Michael did go to football matches with

14 Robert Atkinson and on one occasion we went with Robert

15 and Eleanor Atkinson and a number of other people to

16 a football match in Scotland. Robert Atkinson did do

17 some plumbing and tidying work on the Club premises and

18 Michael did help Robert on renovating a house near

19 Shamrock Park Football Club. I didn't have as much in

20 common with Eleanor although we were friends but Michael

21 and Robert were much closer."

22 If we can to [14912] and pick up the last third of

23 the page, about four lines down on the right-hand side:

24 "It has been explained to me that I was not

25 subscribing to Sky on the night of 26 April 1997 and

1 that Sky did not broadcast a [boxing] event involving

2 Prince Naseem. When I think about it again it is

3 possible that this was not the night that we watched the

4 Naseem fight but I do recall something on the television

5 that night involving boxing, and it would have been for

6 that reason that somebody would have been invited to

7 watch the boxing at our house. It has been put to me

8 about a phone call that was made from my home to a taxi

9 firm in Portadown ..."

10 We will take all of this page, if we can:

11 "... on Sunday 27 April 1997."

12 Pausing there, we will be hearing evidence that

13 a taxi picked up from the McKees' home at about 1.30 in

14 the morning of 27 April and dropped off in Portadown,

15 and the question is whether, if indeed, as the Atkinsons

16 assert, Andrea McKee and her husband were at the

17 Atkinsons' home that night, who it was that was being

18 picked up from the McKees' house, and if it was somebody

19 else, were they at the McKees' home on their own:

20 "I recognise the number as Call-A-Cab in

21 West Street which Michael and myself would have

22 regularly used to go to the Club and return home. We

23 did have a car which both of us shared, a black Celica,

24 but I cannot remember the registration number. Thinking

25 about the night in question again, I am certain that

1 Michael and I were at home that night. Nobody was

2 living with us and nobody else had our house keys.

3 I recall that there were a couple of friends..."

4 Some names are given here and they have been blanked

5 out because they are not the names of people who it

6 turns out took the taxi, and we will see later on in the

7 statement, that different names are inserted:

8 "... a couple of friends ... who came out to our

9 house at that time and I believe that they visited our

10 house on that night. I had started to think about this

11 after making the statement on 20 June 2000 and recall

12 that they had visited our house and got a taxi home.

13 They arrived that night in a taxi and left to return

14 home to ... I remember making the phone call but

15 I cannot recall who I spoke to. I do not know any of

16 the people who work in the office in Call-A-Cab and the

17 only driver I know is a woman called 'Mo'. We had no

18 regular taxi driver as such and the drivers changed

19 continually. I remember when the taxi arrived, the horn

20 sounded and Michael and I walked [these people] to our

21 front door. I do not know who the taxi driver was.

22 [These people] arrived at our house in a taxi during the

23 early evening of Saturday 26 April and we spent the

24 night in our house having drinks. I can remember some

25 sort of boxing on the television during the Saturday

1 evening. They were the only persons at our house."

2 Going over the page, [14914], picking it up from

3 about a quarter of the way down, over on the right-hand

4 side of that first line:

5 "At some point between 11 am and 12 noon, Michael

6 and I were in our house when Tracey Clarke came into our

7 house. She was on her own."

8 This was 27th April:

9 "Tracey told us that there had been fighting in the

10 middle of the town (Portadown) during the night. She

11 didn't mention anything else about it and did not

12 mention Allister Hanvey at that time. Tracey regularly

13 called in so this was not out of the ordinary. After

14 mentioning about the fight she went home. Tracey did

15 not mention at that time seeing Robert Atkinson at the

16 fight. I do not recall seeing Tracey Clarke again that

17 day or discussing it with her again during that day.

18 I cannot recall what we did during the course of that

19 Sunday and I do not recall talking to Robert or

20 Eleanor Atkinson during the course of that Sunday. In

21 the days that followed Tracey Clarke came and spoke to

22 Michael and myself. On the first occasion that she

23 spoke to me, and I cannot be exactly sure of when and

24 where that conversation occurred, Tracey told me that

25 Allister Hanvey had been involved in the fighting. She

1 also mentioned a number of other names but I do recall

2 her mentioning Stacey Bridgett. Tracey also told me

3 that she had seen Robert Atkinson because Robert told

4 her to get home."

5 Pausing there, that, you may think, chimes with what

6 Mr Leatham told you last week about the conversation he

7 had had with Mr Atkinson, when Mr Atkinson said he had

8 seen Allister Hanvey at the fight and told him to get

9 off site and go home:

10 "I remember talking to Robert Atkinson at some point

11 around that time and I remember him telling me that it

12 was just his luck to be on when something like that

13 happens. I did not discuss with Robert Atkinson what

14 Tracey had said about Allister Hanvey and the other

15 person she named. I know that Michael was talking to

16 Robert Atkinson continually at that time but I do not

17 know if he told him at that time about what Tracey had

18 witnessed. At some point after that, Tracey spoke to

19 Michael and told him Allister Hanvey had told her about

20 Robert Atkinson ringing his house on the Sunday morning

21 after he had got home from work and telling him to get

22 rid of his clothes. I first heard about this from

23 Michael and I recall after that, Michael ringing

24 Robert Atkinson from home and telling him what he had

25 heard from Tracey. I remember Michael telling him that if he

1 did do this, then he was an idiot, but I was not in

2 a position to hear what Robert was saying on the far end

3 of the phone. When Michael came off the phone he just

4 commented that if he did do it, then he was an idiot and

5 we didn't discuss it further at that time."

6 If we move down a couple of sentences:

7 "Around the time that Robert Hamill died which was

8 some days after the fight, I remember being in the gym

9 one afternoon, it may have been a Thursday, when Tracey

10 was talking about the fight to people in the gym.

11 I cannot recall who was in the gym at the time but

12 I remember a policeman I know called Davy and talk to me

13 about it and he asked me who Tracey was and did the

14 police know about what she was saying. As far as

15 I recall, Tracey was talking about the fight and who was

16 involved. I do not recall her talking about what

17 Atkinson had done. Davy would attend our gym at

18 different times to train and I remember talking to him

19 again after which he then rang Portadown Police Station

20 from our gym."

21 Taking all of that page again:

22 "As a result of that phone call, I then accompanied

23 Davy to go and meet two police officers. It was dark

24 when I met the two police officers and I told them that

25 Tracey Clarke knew about the fighting and what she had

1 seen. I do not remember mentioning to the officers

2 about what Tracey Clarke had said about Robert Atkinson.

3 On the following day which was a Friday, I was speaking

4 to Tracey Clarke's mother ... who told me that Tracey had to

5 go to Portadown Police Station to speak to the police.

6 I was not aware that she had been spoken to the previous

7 night. Irene asked Michael to pick Tracey up from her

8 part-time job at the Chinese Restaurant in West Street

9 and take her to the police station. I went with

10 Michael, picked Tracey up and [went] to the police

11 station with her. I remember that it was quite late.

12 I remained with Tracey while she was being interviewed

13 and a police woman called P39 brought Tracey and myself

14 home. Michael had dropped us off and had went on home

15 to set with [a person blanked out] and await us coming

16 home. At some point after this, I recall

17 Robert Atkinson telling me that Tracey Clarke had been

18 to the police station and had made a statement, this

19 occurred not long after this but I do not know when."

20 That may be of some significance because, of course,

21 as we know, Tracey Clarke was given the initial "A".

22 There is a question about whether Robert Atkinson could

23 possibly have been in a position, as Tracey Clarke

24 asserts, to -- whether Mr Atkinson would have been in

25 a position to keep Allister Hanvey updated about the

1 police investigation when, in the first place, he was

2 only a Reserve constable, and in the second place, this

3 was, as it were, closed down by use of initials. So if

4 that's right, then that may be a clue to that. On the

5 other hand, this may be an unlikely event:

6 "Tracey Clarke was very worried about making

7 a statement and Michael and his [sic] father Jim did talk to

8 her advising her to tell the police about what she

9 knew."

10 Again, you have seen the evidence of that from the

11 statement of Mr James [Murray].

12 If we go down, just to the last four lines:

13 "I am not personally aware of any direct

14 conversations between Robert Atkinson and the Hanveys

15 over this period. The only contact I was aware of was

16 when Tracey told me that Allister Hanvey had told her

17 that Robert Atkinson had rang his dad."

18 Pausing there, we know that Allister Hanvey wasn't

19 at home at 8.37 in the morning of 27 April. His dad,

20 Kenneth Hanvey, was, according to statements made to the

21 police.

22 "I do know that Robert Atkinson and Kenneth Hanvey

23 have been friends for a long time and that Kenneth

24 Hanvey works for the Northern Ireland Electricity

25 Service which is where Eleanor Atkinson also works."

1 Skipping down three sentences:

2 "Later in the year, Michael told me that

3 Robert Atkinson had spoken to him about the incident.

4 This had happened one night when they were both out

5 together. On his return home, Michael told me that

6 Robert had asked him to cover the phone call to the

7 Hanveys. Michael told me that Robert had made another

8 phone call but that he could cover that phone call

9 himself."

10 Pausing there, we know, with the advantage of very

11 expensive hindsight, that there were two phone calls

12 recorded from the Atkinson household to the Hanvey

13 household, one on 27 April and one on 2 May.

14 Now, if you eventually disbelieve Andrea McKee about

15 all of this, you may conclude that she knew about the

16 phone call of 27 April because of course she was party

17 to it, and has then falsely attributed it to the

18 Atkinsons. What's difficult to understand at the

19 moment, if she is not telling the truth, is how she

20 could have know about a second phone call which we know

21 was made on 2 May, unless indeed it was made by the

22 Atkinsons and the Atkinsons did tell the McKees about

23 it:

24 "Michael told me that he had asked Atkinson about

25 why he had made the phone call. He said that Atkinson

1 told him that he had rang him to try and help him and

2 that he had realised now that he should not have done

3 it. Michael told me that Atkinson had told him that he

4 had made the phone call to tell him to get rid of his

5 clothes. This was the first time that I knew that

6 Atkinson had admitted making the call to Hanvey. On the

7 night that this happened Robert and Michael had been out

8 to a pub but I cannot recall the night in question. It

9 was however after he had been interviewed about it."

10 We know that to be the night of 9 September 1997:

11 "I had been made aware that he [that is Mr Atkinson]

12 had been interviewed about it. Michael said to me that

13 he had agreed to do it for him although he didn't want

14 to. He felt obliged as a close friend to do it and the

15 family relationship with Tracey Clarke was perfect to

16 cover the story. On one occasion after that but before

17 Michael and myself made statements, Michael and myself

18 were over at Robert Atkinson's house. We went there to

19 sort the cover story out and Robert and Eleanor Atkinson

20 were also present. Robert Atkinson led the discussion

21 and he said that the story would be that Michael and

22 I had been staying at their house overnight and he

23 suggested that the call could be covered by Michael

24 saying that he was ringing because of his concern for

25 Tracey Clarke. It was Robert who thought out this story

1 about Tracey Clarke. Robert Atkinson said to me that

2 I would have to confirm that I heard Michael on the

3 telephone. Robert Atkinson mentioned about a second

4 phone call that he had made but that he had that

5 covered. I do not know anything about the second phone

6 call, about his reason for making it, or his story to

7 cover it."

8 There's that 2 May call perhaps again:

9 "We were only there that evening to get the story

10 right and went home again after that. At some point

11 after that, I was aware that Michael and Eleanor went to

12 Portadown Police Station to make statements. I was

13 aware that Robert Atkinson was being interviewed again

14 but I was not asked by Robert to go to the police

15 station. Whenever they went to the police station,

16 I stayed with [blank] Atkinson in Robert's house. When

17 Robert, Eleanor and Michael returned Robert told me that

18 I would have to make a statement. I knew what Michael

19 had said because it had been all arranged as to what we

20 would say before it. After that, I cannot recall when

21 but it was some time later, I was contacted by

22 Robert Atkinson and told to go to Sean Hagan's office

23 for 11 am one morning to provide a statement as we had

24 originally discussed. I went alone to Mr Hagan's office

25 and I was interviewed by a police officer,

1 D/Inspector Irwin and made a statement. I have said it

2 before in my last statement, but the statement I did

3 give was false. I do not remember where I spoke to

4 Robert Atkinson after that, but he asked me did

5 everything go okay. I said it did. I was present

6 during a conversation after that when Michael spoke to

7 Robert Atkinson about the solicitor's bill and telling

8 him that he hoped he would not have to pay for it."

9 Again, take the whole page.

10 THE CHAIRMAN: Can we do that at 5 past 2?

11 MR UNDERWOOD: By all means.

12 (1.05 pm)

13 (The short adjournment)

14 (2.05 pm)

15 THE CHAIRMAN: Yes, Mr Underwood.

16 MR UNDERWOOD: Sir, I was at page [14919]. I was in the top

17 line:

18 "Robert Atkinson said that he would settle it with

19 the solicitor and pay the bill himself. I heard nothing

20 else about this again and we never did get a bill from

21 the solicitor."

22 If we go two-thirds of the way down the page,

23 a sentence starting in the middle of the line:

24 "I have never discussed this with the Hanveys but

25 Robert told me that he had spoken to the Hanveys about

1 it when the cover story was being planned."

2 Then the last three lines:

3 "I have been thinking about who was at my house on

4 the night of Saturday 26 April 1997. We did have

5 another couple who sometimes came to our house, these

6 people were Rodney Smyth and Joy Kitchen."

7 Those are the couple from whom you will be hearing.

8 "Rodney lived... and Joy lived...", and the addresses are given:

9 "When I think about it, this couple may have visited

10 the house on that Saturday night and when they came out

11 to our house they did use taxis."

12 The taxi log has got a name which may assist you on

13 that.

14 Michael McKee then resiled from the alibi statement

15 that he had given in 1997, and he did that when he was

16 arrested and interviewed under caution on 10 April 2001.

17 If we see page [20998], we see the start of the

18 interview there. Jumping to [21002], he says at the

19 second McKee, in the margin:

20 "I was a friend of Robbie Atkinson's for some number

21 of years and he asked me to say I made the phone call to

22 Allister's mum to check how Tracey was and as a friend

23 of Robbie Atkinson obviously because he was about the

24 only friend that I had in Northern Ireland I said yes

25 I would, I'm saying I made the phone call so I did."

1 Then the question is:

2 "OK, what was the reasoning behind that, why did

3 that come about."

4 He said:

5 "I don't know the whole story but apparently he was

6 one of the policemen on the crime scene and where Robbie

7 Hamill, Hamill was sort of assaulted and for whatever

8 reason Robbie had made a phone call, or his wife had

9 made a phone call to Allister's mum or dad to do

10 something or something or other and me and stupidity

11 said yes I'll cover up and say I made a phone call."

12 Question:

13 "But do you know who, who made the phone call?"

14 And the answer is:

15 "I honestly don't know who made the phone call."

16 "And what they still, whoever made the phone call

17 you're saying it was Robert Atkinson or

18 Eleanor Atkinson.

19 "Or Eleanor yeah."

20 Again, interestingly enough there, you have

21 Michael McKee saying that Mr Atkinson told him that the

22 phone call had been to the Hanvey parents, and again, if

23 that's not right, it would be interesting to know how

24 Michael McKee could have known that Allister Hanvey

25 wasn't actually at home at the time.

1 If we go to [21027], a further part of the

2 interview. If I pick it up at the bottom, there's

3 a question:

4 "Right, Michael earlier on in the previous interview

5 I refer to an exhibit. It's actually DL10 ... what

6 that is is a phone billing from your home ..."

7 "Yes", he says, and:

8 "Okay, and specifically I want to refer to one

9 specific page in that and I'm going to show you that we

10 have marked this phone billing up but the part that

11 I want to show you is, if you look there you see the

12 27th of April ... 01.30."

13 "Yes", he says, and there is some detail blanked out.

14 "Right", he says, "for 39 seconds", it's put to him. He

15 says "Right", and "Do you see that?", he is asked:

16 "I do."

17 "Michael, that, that number refers to Call-A-Cab at

18 West Street."

19 So there the police have got and are putting to him

20 the phone record which was to eventuate in the taxi

21 arriving and picking people up at about 1.30 from their

22 home.

23 If we go to [21042], in the middle of the page,

24 there is a long answer:

25 "In the days that followed Allister Hanvey was

1 charged and appeared before court. I cannot recall

2 being in any discussion with Robert Atkinson at that

3 time and I do not know what his reaction was to Allister

4 being charged. I am not personally aware of any direct

5 conversations between Robert Atkinson and the Hanveys

6 over this period. The only contact I, I was aware of

7 was when Tracey told me that Allister Hanvey had told

8 her that Robert Atkinson had rung his dad."

9 So, again, that may be the derivation of the

10 knowledge. If it is not from Mr Atkinson, it may be

11 from Tracey Clarke:

12 "I know that Robert Atkinson and Kenneth Hanvey have

13 been friends for a long time and that Kenneth Hanvey

14 works for the Northern Ireland Electricity Service,

15 which is where Eleanor Atkinson also works. I did not

16 speak with the Hanveys either directly or by telephone

17 over that period. I do not know if Michael spoke to the

18 Hanveys at this time."

19 That's essentially what he was saying about what he

20 then said was the truth of the phone calls.

21 Mr McKee appears to have been a worried man, and on

22 5 December 2000 he had received a bullet through the

23 post with a threat. We can see something of that at

24 page [17372], just the first half of the page, the

25 statement he made on 5 December:

1 "This morning at about 9.25 am I got up out of bed.

2 I got a cigarette and went to the front door to get the

3 mail. There was some flyers like a LEDU leaflet and

4 a VG Spar Vivo brochure and a brown padded envelope.

5 I went to the toilet and then opened the padded

6 envelope. Inside I found a piece of notepaper with the

7 words, 'keep your mouth shut the next one is for your

8 head' printed in capital letters on the page. It is

9 a page from a notepad like a shorthand pad with

10 perforations along the top. I also found a live bullet

11 in the bag."

12 It appears that his response to receiving that was

13 to ring Mr Atkinson and ask him about it. He has

14 declined since then to give evidence against anybody

15 else, including evidence at this Inquiry. If we look at

16 page [03039], first paragraph, we see he was visited in

17 prison -- and I will come to why he was in prison in

18 a minute, of course -- on 15 May 2002 by two officers.

19 He was invited to make a written statement as a witness

20 as to the events and circumstances surrounding his plea

21 of guilty to perverting the course of justice. He

22 declined, stating that he wanted to put the matter

23 behind him.

24 As I said, obviously he was in prison, and we see

25 that was on a conspiracy charge. Both Mr and Mrs McKee,

1 having given their, as it were, recantations of their

2 alibi statements, stuck with that recantation, in each

3 case consistently, and unequivocally accepted their

4 guilt, even though of course, as I said, Mrs McKee was

5 interviewed twice on this without being cautioned, and

6 they plainly knew that they were facing imprisonment.

7 If we look at page [21858], this is the first page

8 of the pre-sentence report for Michael McKee. If we go

9 to [21860], first half:

10 "Mr McKee was asked by his friend, who was a police

11 officer, to make a statement to the police stating he

12 had made a phone call from the police officer's home when

13 in fact he did not. Mr McKee states he did not realise

14 there was a link between this phone call and the death of

15 Robert Hamill. Mr McKee explained that during this time

16 he was regularly abusing alcohol and although fully

17 admits to this charge he claims he was very vulnerable

18 at this time and made a terrible error of judgment.

19 Mr McKee claims at this time he did not realise the

20 seriousness of his actions nor realise that this

21 incident concerned the death of a young man. Mr McKee

22 states he thought he was helping a friend but did not

23 realise the consequences of such an action.

24 "Mr McKee clearly appears to have thought about his

25 behaviour and how his actions have affected others. He

1 does not attempt to deny this offence nor does he try to

2 minimise or excuse his behaviour. Mr McKee displays an

3 appropriate level of insight into his offending

4 behaviour and has identified the impact his actions have

5 had on not only his family but the family of

6 Robert Hamill. It appears that alcohol has drastically

7 affected Mr McKee's ability to operate at a responsible

8 level and coupled with the influence of others at

9 a vulnerable time in his life, has brought him before

10 the courts today. Mr McKee appears genuinely remorseful

11 for his actions and has taken steps to avoid further

12 offending such as moving from this area, disassociating

13 with his previous friends and limiting his level of

14 alcohol use. Mr McKee is aware of the seriousness of

15 his actions and that the court may be considering

16 a custodial sentence. He is greatly concerned about

17 this prospect due to the impact it would have on his

18 family life, employment and home. His partner states

19 she feels their family would have great difficulty

20 emotionally and financially coping if Mr McKee is

21 imprisoned."

22 Equally in the case of Mrs McKee, if we look at page

23 [20098], this is the sentencing transcript, and if we go

24 to [20104] you will see this is the start of the plea in

25 mitigation.

1 Sorry, I have misled you. This is still in respect

2 of Mr McKee. If we go over the page to [20105] you can

3 see what was said on instructions, second paragraph:

4 "Secondly, the essence of the charge is that he

5 agreed with the Reserve constable to cover up a phone

6 call which of course had been made by the Reserve

7 constable and he agreed to do that in this context.

8 That as the papers before you indicate, he had formed

9 only one friendship really on coming back to the country

10 and that was with the Reserve constable and his wife."

11 The final ten lines or so of this page:

12 "The papers reflect that certainly at the time at

13 which he was approached, which appears to be in 1997, to

14 say that he had made this phone call he was drinking

15 something between 20 and 30 beers a day and was living

16 in an alcoholic haze. He clearly wasn't thinking

17 straight. His judgment was impaired and he was a person

18 who had formed a close connection, he and his wife, with

19 the Reserve constable's family ..."

20 Over the page:

21 "... and it is against that background that he on,

22 he says, the morning of 27 April 1997 received a phone

23 call from the Reserve constable asking him to agree to

24 do this and he subsequently met him briefly that day."

25 Of course you are going to have to compare that with

1 the other evidence of dates because that's contradicting

2 the evidence which we anticipate to be given by

3 Andrea McKee that it's much later, that it's

4 September 1997 that this happens:

5 "He has little recollection of exactly what he had

6 agreed to at that time and I can indicate to the court

7 that any knowledge of what he had agreed to do developed

8 between that initial approach by the Reserve constable

9 and the ultimate statement that of course he made to the

10 police, which he deeply deeply regrets, in October of

11 1997."

12 Missing out a paragraph, it says:

13 "Ultimately, of course, by virtue of his plea he

14 accepts that when he made the statement to the police in

15 October 1997 he had become aware that he was in fact

16 covering for this particular phone call and what that

17 cover-up was about and he accepts that."

18 If we go to page [20110], we see the plea in

19 mitigation on behalf of Andrea McKee, final paragraph,

20 dealing with a letter:

21 "It also confirms in our respectful submission and

22 one also finds it referred to in the probation report

23 that her crime was really committed out of a sense of

24 misguided loyalty to her then husband, as a result of

25 which she made a statement corroborating the account

1 which he had given to the police, although it's right to

2 say that following that -- and we see this again in the

3 fourth paragraph of Detective Chief Superintendent

4 Stewart's report -- she was then contacted by the police

5 and during the course of that contact she readily

6 admitted that she had lied on behalf of her husband and

7 has been of immense assistance to the police in

8 consequence."

9 So there's the consistency in the face of an

10 expectation of quite serious sentencing.

11 Then we know that although Andrea McKee was at that

12 point expressing a willingness to give evidence against

13 what she said were her co-conspirators, no prosecution

14 was ever carried through, and that transpired to be

15 because she was regarded by the DPP as not being capable

16 of being advanced as a witness of truth. That's about

17 what we regard as a tangential matter, which is medical

18 treatment for her son which has to do with a reason she

19 gave to the DPP and the police for not giving evidence

20 or not turning up in Northern Ireland to give evidence.

21 That matter will be, of course, dealt with in her

22 evidence because I'm going to call her once and once

23 only, I hope. But so far as the DPP and police are

24 concerned, we will be dealing with that aspect of her

25 evidence later on. I hope that doesn't hold too much

1 suspense for the assessment of her evidence.

2 As I have said, Michael McKee will not give

3 evidence. He has been seen by the Inquiry and it is

4 obvious that he would go to prison rather than give

5 evidence, for reasons that may be connected with that

6 bullet in the post.

7 Plainly then the question of whether Andrea McKee

8 told the truth in those statements made not under

9 caution in 2000 is of great significance in relation to

10 the issue of whether Mr Atkinson tipped off Mr Hanvey.

11 You may think also that her credibility is very

12 important to the question of whether Tracey Clarke's

13 statement made to the police on 10 May 1997 was true,

14 which in turn may go to the same issue.

15 Obviously Andrea McKee is not a direct witness to

16 any such tip-off, but if you find her evidence

17 compelling, it may be a substantial indicator there was

18 such a tip-off. If, on the other hand, you conclude she

19 is not to be believed, that may be a substantial

20 indicator against the credibility of Tracey Clarke, or

21 rather the credibility of Tracey Clarke's statement to

22 the police.

23 As I say, later witnesses will deal with the reason

24 why the prosecution against Mr Atkinson and others

25 failed. I confess, it is not altogether easy to find

1 a group of witnesses who deal in isolation solely with

2 the question of Andrea McKee's credibility, but I am

3 anxious to call the major ones close together so that

4 you can -- doing the best I can, allow you to compare

5 those witnesses.

6 So in addition to Andrea McKee herself, I am

7 proposing to call a number of witnesses who go directly

8 to her account now of events. Those will be Joy Kitchen

9 and Rodney Smyth, who are the ones who appear to have

10 been in the taxi leaving at about 1.30 from the McKee

11 household on the night of 26/27 April. Then Glynis

12 Finnegan, who is a very close friend of Andrea McKee and

13 who appears to have spoken to her extensively at about

14 the time when Andrea McKee was being questioned under

15 caution, which she eventually was in April 2001.

16 Then I am going to call Catherine Jagger who is the

17 solicitor who represented Mrs McKee when she was

18 interviewed under caution because she, Catherine Jagger,

19 was given a pack by the police prior to that interview.

20 She obviously had the opportunity to advise Mrs McKee

21 before she was interviewed under caution, and it's that

22 transition from having made two statements as a witness

23 in which she admitted an offence, to being interviewed

24 under caution that Mrs Jagger can go to and say whether

25 Andrea McKee realised that she didn't have to do it and

1 what the consequences of doing it might be.

2 Then I'm going to call Kenneth and Elizabeth Hanvey,

3 and ill health may be a problem, but Eleanor Atkinson,

4 if I can, to give their account of the telephone call of

5 27 April 1997 between their two homes.

6 There are some other documents it may be useful to

7 see at this stage before we get to that. The itemised

8 billing itself we see at page [09350]. Redaction being

9 what it is, it may not say a lot out of context. What

10 we have got here is simply from the HOLMES account, the

11 two telephone calls which have been isolated

12 27 April 1997 at 08:37 from the Atkinson household to the

13 Hanvey household, and we see it lasted 1 minute and 35

14 seconds; the other one, 2 May 1997 at 16:24 in the

15 afternoon, which lasted 1 minute and 41 seconds, again

16 to the same number.

17 Then I keep promising the taxi log. That's at page

18 [21168]. Again, redaction being what it is, one might

19 need a bit of help seeing this. In fact it's the Smith

20 2.15 in the middle of the page that's the material one.

21 Although, as I say, it's been rather over-redacted,

22 and we will secure rather better copies of this, what

23 that does show is that it's a taxi picking up Smith from

24 the McKee home and taking them to an address in

25 Portadown.

1 Then we get a statement of Irene McKee which we see

2 at page [17365]. Perhaps we can split the screen with

3 [17366] as well, a statement made on 15 November 2000.

4 One begins to see, from the derivation of these

5 various bits of evidence, how the investigation came in

6 as it were two lumps. Just about everything we know to

7 do with the uncovering of the conspiracy, if there was

8 a conspiracy, transpired from June 2000 onwards, and one

9 sees that these statements, including, when we come to

10 it, the evidence about whether there was a silver jacket

11 or a blue jacket and what it is that Mr Lyons sold,

12 all comes out after this.

13 This is Irene McKee, who says she is an employee of

14 Call-A-Cab, and in April 1997 was employed as an

15 operator in the office.

16 If we go down halfway down page [17365], she says,

17 about four lines into that:

18 "I have been shown in particular an entry timed at

19 2.15 ..."

20 That's the one we just looked at:

21 "... to collect someone called Smith to take them to

22 town and the driver is driver number 9 who was

23 Alf Annesley. I can state that I made this entry as it

24 is in my handwriting. Our sheets are usually made out

25 prior to commencing that shift. By this I mean the

1 pages are ruled and times inserted on the left of the

2 page. Usually every 15 minutes. The entry for Smith to

3 [Portadown] is exactly on the 2.15 line which indicates

4 to me that Smith has to be collected from [that is the

5 McKees' address taken out there] at 2.15. On checking

6 the sheets the previous call that driver No. 9 who is

7 Alf Annesley did was to collect a fare from the cinema

8 at Banbridge and drop it at the town and Craigavon which

9 means Portadown town and somewhere in Craigavon."

10 If we go just to the final sentence:

11 "I am unable to say at what time the booking for

12 Smith was made."

13 Then we go to the statement which Mr Annesley made

14 at [17367]. What Mr Annesley himself told the police on

15 7 November 2000 was that he was indeed a self-employed

16 taxi driver with Call-A-Cab. He had worked for

17 13 years, and he had always been driver number 9. He

18 was shown a copy of the taxi log, and specifically that

19 entry of 2.15, taking someone called Smith to town with

20 the entry number 9. He says that entry, although dated

21 26 April, actually refers to Sunday morning, 27 April,

22 but he can't recall anything else, apart from the fact

23 that he was driver number 9.

24 So there you've got that it's pretty clear somebody

25 called Smith was picked up from the McKees at around

1 2.15.

2 Then finally on this, there is a statement of

3 [Tracey's mother].

4 I am reminded that Mr Annesley has made a statement

5 to the Inquiry which I need to bring to your attention,

6 which is at page [80025]. This is signed by him,

7 I hope, uncontentious. At paragraph 3:

8 "Our practice was that when a customer called for

9 a taxi the call would be logged on a call sheet in the

10 office. The customer would give their name, the pick-up

11 address, the time for pick-up and the general area where

12 they were going. Then the girl in the office would find

13 me if I'm the driver closest to the pick-up, she

14 wouldn't tend to tell me where I'm going. I just picked

15 the customer up, they told me where they were going and

16 I took them there. The pick-up time marked in the log

17 was not necessarily the actual time you picked up the

18 customer. You could be anything up to a half an hour

19 late on a job."

20 For completion, I take you to paragraph 5, if I may:

21 "The address doesn't ring at that bell for me, it is

22 not a regular customer, and the names Rodney Smyth and

23 Joy Kitchen mean nothing to me. I have no recollection

24 of picking up from that address but I had been working

25 from 5.00 pm that Saturday to probably 3.00 am or 4.00

1 am in the morning and you'll have umpteen people would

2 have had maybe 10 or 12 calls between 8 pm and 3 am.

3 I can say, however, that at that time of night the

4 journey from that address to Thomas Street

5 [fortuitously] would have been about 10 to 15 minutes at

6 the most, if they didn't make any other stops."

7 Then if I can just go to [Tracey's mother's]

8 statement at page [17336]. It's a second statement.

9 There's nothing in the first. If I pick this up from

10 the second line, halfway through the second line:

11 "I can now recall at some point in 1997 Andrea McKee

12 telling me that Michael had to make a statement to cover

13 for Robbie Atkinson ringing Hanvey's house. Andrea

14 didn't go into details but I do recall her telling me at

15 that time that Michael's statement was all lies.

16 Michael has never told me about this and I have never

17 discussed it with him."

18 If that's right, and she's too ill to attend to tell

19 us this, xxxxxxxxxx, if that's right, then there's

20 Andrea McKee saying from 1997 onwards that the -- what

21 we are calling an alibi statement was untrue, which

22 would make her consistent throughout.

23 But unfortunately, as I say, I am unable to produce

24 xxxxxxxxxx to assist you on whether that's actually

25 right.

1 That's the entry. What I am proposing to call over

2 the next couple of days or so is Andrea McKee, Joy

3 Kitchen, Rodney Smyth, Catherine Jagger and the others

4 I have mentioned. But for logistical reasons, it was

5 thought unwise to get people to travel for the purpose

6 of giving evidence today.

7 I think I have been told that we are sitting at 9.30

8 tomorrow. So with that, unless there's anything else

9 I can assist on.

10 THE CHAIRMAN: Thank you very much. 9.30 then tomorrow,

11 gentlemen and ladies.

12 (2.32 pm)

13 (The hearing adjourned until Wednesday, 11 February 2009 at

14 9.30 am)

1 INDEX

2 PAGE

3 MR GORDON KERR (sworn) ........................... 1

5 Examination by MR UNDERWOOD ............... 1

7 MR ROGER DAVISON (sworn) ......................... 5

9 Examination by MR UNDERWOOD ............... 5

11 Examination by MR MALLON .................. 10

13 Examination by MR BERRY ................... 20

15 Examination by MR McCOMB ................. 23

17 Examination by MR EMMERSON ................ 26

19 MS LINDA WILSON (sworn) .......................... 34

21 Examination by MR UNDERWOOD ............... 34

23 Examination by MR MALLON ............... 39

25 Examination by MR McGRORY ................ 41

Robert Hamill Inquiry

Witness Timetable

Transcripts

Transcript

Hearing: 10th February 2009, day 13