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Hearing: 8th September 2009, day 59
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PUBLIC INQUIRY INTO THE DEATH OF
ROBERT HAMILL
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Held at:
Interpoint
20-24 York Street
Belfast
on Tuesday, 8th September 2009
commencing at 10.30 am
Day 59
1 Tuesday, 8th September 2009
2 (10.30 am)
3 MR UNDERWOOD: May I call Witness K, please?
4 THE CHAIRMAN: Yes.
5 WITNESS K (sworn)
6 Questions from MR UNDERWOOD
7 MR UNDERWOOD: Good morning.
8 A. Good morning.
9 Q. We have met before. My name is Underwood. I know you
10 know that. I am Counsel to the Inquiry. I have a few
11 questions for you to ask you to amplify on the witness
12 statement you gave. It may be that, after that, some
13 others will have some further questions.
14 First of all, can I get you to look at on screen
15 a statement we have starting at page [81774]? This runs
16 to fifteen pages. Would you mind keeping your eyes on
17 it while we just scroll through the fifteen of them?
18 Is that your witness statement?
19 A. It is.
20 Q. Are the contents true?
21 A. As per the statement, yes.
22 Q. Thank you. As I say, I have some supplemental questions
23 on that.
24 First of all, can I ask you to look at page [75234]?
25 This is a two-page document that deals with some figures
1
1 for the state of the investigation as at the point where
2 you came on board, that's the murder investigation.
3 I want to see if you can help us with whether you
4 can confirm these figures.
5 If we look at paragraph 3, there is a question:
6 "The number of witness statements taken by the
7 police up to the appointment of K."
8 The answer comes back:
9 "The number of statements taken by the police was
10 404."
11 Can you confirm that or would that surprise you?
12 A. That would look to be about correct.
13 Q. "4. The number of people interviewed by police both
14 under caution and as potential witnesses up to the
15 appointment of K."
16 There is a read-off here from the HOLMES system
17 which shows:
18 "... 91 civilian witnesses have been interviewed up
19 until K took on the inquiry, 9 of which were interviewed
20 under caution. It should be noted that this figure does
21 not include 12 police officers that were at the scene,
22 and, further, there were 11 police officers interviewed
23 under caution for various matters involving complaints
24 against the police and disciplinary matters."
25 Again, can you confirm that?
2
1 A. I can.
2 Q. Then if we go down, there is another 4, unfortunately:
3 "The number of questionnaires completed."
4 We call those QPFs and QPGs:
5 "The number of questionnaires completed was 51."
6 I think actually that must refer to QPFs --
7 A. Yes, it would, yes --
8 Q. -- because QPGs --
9 A. -- I would recognise that.
10 Q. Sorry. I overspoke there:
11 "The number of people who refused to speak to
12 investigating police officers or make statements to
13 police."
14 We are given:
15 "21 persons refused to make statements, 14 of which
16 either answered questionnaires or gave accounts of their
17 movements; 4 referred to [what has been blanked out
18 there is 'xxxxxxxxxxxxx solicitors'] (no reply given);
19 2 could not be contacted; 1 totally refused to
20 cooperate."
21 Again, can you confirm those figures?
22 A. They are taken from the HOLMES system. I can confirm
23 them, yes.
24 Q. Thank you. Then if we go to 6:
25 "The total number of HOLMES actions and entries in
3
1 respect of the investigation up to the appointment
2 of K."
3 The answer comes back:
4 "452 actions were raised ..."
5 Again, how does that strike you?
6 A. That is correct.
7 Q. Finally:
8 "The total number of police officers who were
9 involved in the investigation up to the appointment
10 of K."
11 Then:
12 "The total number ... was 462."
13 Again, can you comment on that?
14 A. What does it mean, "The total number of police officers
15 involved in the Hamill investigation"?
16 Q. I am afraid we would have to ask the PSNI in more detail
17 about that.
18 A. I am not too sure what you mean by that.
19 Q. Fine. If you can't help, you can't help.
20 The impression given here then is that a lot of
21 manpower was put into it?
22 A. Absolutely. I would agree with that.
23 Q. I am going to ask you a fairly random series of
24 questions, I am afraid, about amplification of your
25 witness statement.
4
1 If we look at paragraph 2, which is at page [81774],
2 you tell us there that you were appointed deputy SIO on
3 26th June 2000. Mr McBurney was still in charge at that
4 point. That remained the position with you two working
5 together until about 13th December, I think. Is that
6 right?
7 A. That's correct.
8 Q. Can you help us about your understanding of why it took
9 until June 2000 for the McKees to be seen again when
10 they split up in 1999?
11 A. In terms of what I was briefed by Mr McBurney, and on my
12 appointment he had indicated to me that his intention
13 was always to monitor the McKees, and he briefed me that
14 they had subsequently separated and he briefed me that
15 his strategy always was that he may have been able to
16 penetrate this conspiracy by taking advantage of that
17 separation, and, consequently, when he found out that
18 they had separated and were both living apart, he took
19 the decision at that point to approach both of them.
20 Q. Obviously I am sure you are aware there is a fair amount
21 of controversy about the strategy over the McKees.
22 Sadly, of course, Mr McBurney is unable to answer for
23 himself now.
24 A. Yes.
25 Q. What I am exercised about is to try to get everybody's
5
1 impressions, as best I can, of how he acted.
2 When you were briefed about that and his, as it
3 were, long-view strategy, how did that strike you at the
4 time?
5 A. I had no difficulties with that.
6 Q. So not so exceptionally mad as to be impossible?
7 A. No. He had to penetrate a conspiracy, which is very,
8 very difficult to do in terms of criminal investigation,
9 and, I mean, I think that his strategy, which was
10 discussed with me, which was that, really, to break
11 a conspiracy, you have to penetrate it and get one of
12 the conspirators to come out and tell the truth about
13 it, I think that, certainly in my view, was a useful
14 strategy.
15 Q. Okay. Had you worked with him before?
16 A. Yes.
17 Q. We have had the advantage of seeing Colville Stewart
18 give evidence, and, if I may say so, the impression
19 being given is that Mr McBurney is very old school.
20 Colville Stewart, new broom, very aware of new policing
21 techniques and investigative techniques and so on and
22 making thorough records of everything.
23 Would that be a fair impression of the distinction
24 between these two?
25 A. Yes, I think that is fair. Mr McBurney was a very
6
1 hardworking detective. He was a detective's detective.
2 You know, he headed up a region through many years which
3 encountered many, many murders and he headed up a lot of
4 very serious criminal investigations and he brought
5 a lot of people to book.
6 So in terms of his commitment to his work, I would
7 have had no doubt about that.
8 Q. Or his effectiveness?
9 A. Absolutely. At times maybe he took too much on and he
10 would have liked to have done things himself.
11 Q. That leads me on to policy books, because, as you know,
12 and you comment on in your statement, policy books were
13 the norm certainly by 2000, but even, in fact in 1997,
14 and we know that Mr McBurney did not keep one on this.
15 He has been interviewed about that and the basic
16 answer he gave was, "Well, I would spend all day writing
17 if I kept a policy book. Anyway, I didn't even want to
18 keep a sensitive policy book because of that, let alone
19 an open policy book, which could have compromised
20 everything."
21 Never mind whether policy books were simply normal,
22 was the advantage of a policy book that it allowed
23 a track to be kept of the way the investigation was
24 going.
25 A. In my view, a policy book is absolutely essential to
7
1 an investigation, because it really draws together the
2 golden threads that run through an investigation. It is
3 there to guide any person who needs to understand what
4 path an investigation takes.
5 It is there to record some of the major decisions,
6 the major strands of investigation being pursued. You
7 alluded there to a secret policy book. That was equally
8 important in terms of basically managing some of the
9 very sensitive sides to investigations.
10 Q. Can I put this proposition to you: that a policy book is
11 very useful to, for example, an IO and other detectives
12 below that who may have access to it in order to see the
13 strategic thinking?
14 A. Yes.
15 Q. But if you have a dominating SIO, an SIO who likes to
16 keep all the strands together, there may not be
17 a particular disadvantage if he does not keep a policy
18 book?
19 A. That's assuming that he remains the senior investigating
20 officer throughout the investigation from its start to
21 its absolute conclusion. Some of these major
22 investigations go on sometimes over several years, and
23 so, in that context, the policy book is very useful if
24 an investigation is transferred to a new SIO.
25 Q. What would you say about the period while the SIO
8
1 remains in post?
2 A. In my view, I always kept policy books.
3 Q. Okay. Again, can I put this proposition to you: that if
4 you have an extremely impressive memory as an SIO, you
5 may not need, for your own purposes, a policy book to
6 keep the golden threads. What would you say to that?
7 A. That is possible, but in my view, and I have been an SIO
8 in many, many murder investigations, a murder
9 investigation I never dealt with in isolation. I always
10 had several investigations running concurrently. So
11 an SIO -- the policy book for the SIO is absolutely
12 invaluable, in my view.
13 Q. As I say, these questions are going to be a bit random.
14 If we look at paragraph 15 onwards in your
15 statement, page [81777], you tell us there:
16 "I knew that there had been some telephone analysis
17 carried out in 1997."
18 You go on to tell us that you had a report from
19 Mr Irwin setting some of that out. You go on in the
20 following paragraphs to deal with how you then did some
21 further telephone analysis in a way that it would become
22 usable as evidence.
23 What I want to ask you about is this: in 1997, can
24 you help us about how you would have gone about getting
25 telephone analysis that was usable, admissible in
9
1 evidence?
2 A. I now have to try to think back many, many years. The
3 telephone billings, I believe, in 1997, could have been
4 put into evidence. I think in some cases and I think
5 there were circumstances at times where certain service
6 providers were a little bit cautious about having staff
7 provide the statements that would back up the billings
8 from the various databases from which that data was
9 taken. I think at times, if my recollection is correct,
10 that sometimes we had to get service provider officials
11 from the mainland to do statements to back up telephone
12 billings.
13 Q. Right. That's helpful. Thank you.
14 I want to move on to intrusive surveillance that
15 was, in fact, conducted in April 2001 coincidentally
16 with the arrests of, amongst others, the Atkinsons.
17 You probably know we have heard evidence from
18 Mr Wood as well as from Colville Stewart about this and
19 about the disagreement there was about the use and
20 timing of covert surveillance.
21 What we have heard so far is that Mr Wood was very
22 clear that he wanted the intrusive surveillance to go in
23 at the time of the arrests and that you and
24 Colville Stewart wanted it to go in earlier.
25 Would you agree with that as a disagreement, as it
10
1 were?
2 A. There was a disagreement insofar as it related to how we
3 would do it. We were in agreement that it was a good
4 investigative option for us. I think I need to, if it
5 would be helpful to the Panel, draw that back.
6 Q. Please.
7 A. I was appointed to this at the end of June in the year
8 2000, and in July I did consider the issues around
9 implementing an intrusive surveillance strategy. The
10 issues that I thought about were in terms of trying
11 to -- certainly trying to penetrate the conspiracy
12 between the Atkinsons and the Hanveys, because we
13 already had broken down or broken into the first part of
14 the conspiracy between the McKees and the Atkinsons, but
15 I considered at that stage that that other aspect of the
16 conspiracy would be far more difficult.
17 The considerations I gave at that point were that we
18 would run an overt investigation and I made a decision
19 to continue with the HOLMES account that was originally
20 set up for the murder because of the issues around the
21 fact that there were issues in this conspiracy that went
22 and touched upon the murder itself in terms of the
23 destruction of forensic evidence, and I structured the
24 investigation that way.
25 Alongside that in the background, I considered in
11
1 July what the benefits would be of utilising a covert
2 strategy and I wanted to keep that option open for
3 myself.
4 During the months that followed -- and this was
5 prior to the Ombudsman being introduced to the
6 investigation in November -- I did put various
7 supporting elements in place, because what was important
8 to this investigation was also to try to develop some
9 intelligence leads, which would open up opportunities to
10 give evidence.
11 That was running in the background, but I didn't
12 feel at that point that I could have moved on with the
13 intrusive surveillance strategy until I had got a very
14 firm intelligence foundation for the case that I would
15 have to make. I also needed to understand the issues
16 around the lifestyles of the people concerned.
17 I proceeded to do that in the background. As we
18 approached November, the ICPC was handing over to the
19 Police Ombudsman, and we had an initial meeting with the
20 Police Ombudsman. I think the first meeting was about
21 23rd November.
22 Essentially, that was a briefing of Mr Mahaffey, and
23 he was very much in listening mode. The next meeting we
24 had was on 5th December. At that point, I was beginning
25 to think that what we should do is move on
12
1 Michael McKee. The issues in relation to the overt
2 investigation was that it had turned out to be quite
3 a live inquiry, and I think that the actions that you
4 would audit on the HOLMES system reflect that --
5 Q. For example, to interrupt, you were finding out things
6 about the silver jacket --
7 A. Correct.
8 Q. -- about taxi logs and so on?
9 A. The point that I am making is that it was very much
10 a live inquiry, and so on the overt side of the
11 investigation, it had not run into the ground.
12 Had I run into the ground, I had this background
13 work being done, which I would then have brought into
14 consideration.
15 The issue of an intrusive surveillance strategy is
16 that it is very much work in progress. It is not
17 a set-piece strategy. It is not something that you go
18 in and take off a shelf and go and do. It takes a lot
19 of work to build the case, for what we like to do is
20 a total covert installation.
21 THE CHAIRMAN: Is this in order to get the necessary
22 permission to do it?
23 A. The permission is another issue, Mr Chairman, because --
24 THE CHAIRMAN: Was RIPA in force then?
25 A. RIPA came into force in October of 2000.
13
1 THE CHAIRMAN: I see.
2 A. So, as I had this working in the background, I had taken
3 various legal advice, and it was very much early days
4 for RIPA. The advice I was getting was, because the
5 overt investigation was very much a live issue, it had
6 not run into the ground, that we were continuing to
7 perhaps gather some evidence, that we would -- that was
8 relevant in terms of the proportionality arguments
9 around a RIPA application for intrusive surveillance.
10 The issue as well -- the key issues for an SIO in
11 thinking about intrusive surveillance is about the fact
12 that it has to be operationalised at a time and in
13 a manner at which you optimise the chance of getting the
14 evidence; in other words, you would not run out today
15 and simply go and do it this afternoon. You have to
16 understand what is in play in terms of the targets and
17 you have to understand when the best time is to insert.
18 The other issue is that -- and this is the big, big
19 issue -- these strategies are only successful if they
20 are done totally covertly, and that is the optimal
21 position.
22 Now, to do that openly, or totally covertly -- and
23 there is always risks, but the total covert installation
24 minimises those risks as far as possible
25 MR UNDERWOOD: Can I just put this proposition to you: there
14
1 was a tension between two needs, if you like. One need
2 is to make sure this is done covertly so that the
3 targets do not know and the rest of the street do not
4 know that you are crashing around putting bugs in. The
5 other is that you need to put it in at a time when they
6 are going to be talking about things you want to know
7 about.
8 A. That is correct.
9 Q. What Mr Wood told us was that, as far as he was
10 concerned, putting this in at the time of the arrest
11 gives you the opportunity to get information because,
12 once they are released on bail, they are going to be
13 talking about the arrests.
14 Would you like to comment on that?
15 A. The big, big issue is the covert installation. You have
16 to make a judgment on when you think you will do that to
17 optimise the chance of getting evidence. The problems
18 with doing it at the time of arrest raise the issues of
19 risk. They can raise it to a point that the whole
20 operation can fail.
21 If you do it totally covertly and get the equipment
22 in, there can then be certain triggers that could be put
23 in place in the strategy.
24 Q. Okay. Could I just -- I am sorry. Do go on.
25 A. If this had run into the ground and we were going
15
1 nowhere with the overt investigation, I had a view that
2 we should move on to a totally covert phase against
3 these targets.
4 Q. Mr Wood told us that, as far as he understood, this sort
5 of intrusive surveillance had not been used in
6 Northern Ireland for evidence-gathering purposes prior
7 to this. Can you comment on that?
8 A. That is not correct. If I could then say --
9 Q. Please.
10 A. -- moving then up to 5th December, which was our first
11 tactical meeting, I had reached a position where
12 I thought we should move against Michael McKee, and that
13 we should do it as soon as we can do. We would
14 establish what position Michael McKee would take when he
15 was interviewed. My thought was that he may well be
16 able to provide us with some useful information and
17 potential evidence or open up leads for us that would
18 move us into the conspiracy that then happened between
19 Atkinson and Hanveys.
20 At that point, had I done that, and after
21 considering and looking at what came out of the arrest
22 of Michael McKee, we would then kick in to see what we
23 would then do.
24 This is about -- investigative work is not
25 a set-piece action. It ebbs and flows and you have to
16
1 move with changing circumstances and you have to be
2 prepared, if you are going to be a successful
3 investigator, in my view, to consider the different
4 options available.
5 We got to 5th December and at the first tactical
6 meeting of Mr Mahaffey, Mr Mahaffey -- we discussed
7 about arrests in the first part of that meeting. He was
8 of the view, and he did tell us at that point, that the
9 decision had been taken that the Police Ombudsman would
10 take direct and active investigation, that all the
11 arrests would be done at one time and they would be done
12 as soon as possible
13 Q. That obviously conflicts with your, if you may say so,
14 patient, graded approach. How did it strike you at the
15 time?
16 A. We put forward the issues we were thinking about with
17 Michael McKee, but he wanted it done at the one time.
18 He then came forward with thinking about an intrusive
19 strategy. I briefed him on where we were with that and
20 he knew that from 5th December.
21 As the discussion developed in that meeting he was
22 of the view that we should go in at the time of arrest.
23 At that point I had reservations about that, but we were
24 in agreement that it was an option, because it is
25 an option that you can also do post-arrest. My view on
17
1 it is, if you do it post-arrest, you pick your time to
2 do that after arrest, not at the time of arrest. He was
3 of the view that it should be done that way.
4 Now, we didn't have a meeting of minds on that
5 point, but we agreed together to go and look at the
6 operational feasibility of it, and, because we were in
7 partnership, that was the position of 5th December.
8 As we move forward, just to outline where we went --
9 Q. Please.
10 A. -- on this, we had a number of meetings in January and
11 February of 2001. I became aware that the target,
12 Allister Hanvey, was considering moving into new
13 accommodation with Tracey Clarke. That was happening
14 over January and into February. That had an implication
15 in relation to when we would implement the strategy.
16 I was also aware that they did at times have quite
17 a volatile relationship. What we had to think about --
18 because it was very important to get a covert
19 installation against Allister Hanvey, because it also
20 touched upon the murder, and what I wanted was evidence
21 of the murder as well.
22 Q. Uh-huh.
23 A. I had to wait until that settled.
24 Q. You had to wait until what, sorry?
25 A. Until Allister Hanvey was settled with Tracey Clarke so
18
1 as we were aware of what way the position would be with
2 the two of them. That all had to factor into what we
3 were going to think about.
4 THE CHAIRMAN: Can you tell us, in terms of whether vehicles
5 would have to attend, what manpower there would be, what
6 that would involve so far as an onlooker would see if
7 you were putting in intrusive surveillance equipment,
8 and, also, can you do it under cover of darkness?
9 A. I have to be careful in my response, Mr Chairman,
10 because I don't want to say anything that would
11 compromise future operations.
12 THE CHAIRMAN: Yes, I follow.
13 A. I think what I can say to help the Inquiry is that if
14 you do it at the time of arrest where the risk of
15 compromise is higher, the degree of plant is deeper.
16 MR UNDERWOOD: Okay.
17 A. I think that's as far as I should take it, Mr Chairman,
18 if you ...
19 THE CHAIRMAN: What do you mean by "plant"?
20 A. Inserting the device.
21 THE CHAIRMAN: Yes, I follow.
22 MR UNDERWOOD: Just finally on this intrusive surveillance
23 business, I think you know that Mr Wood has expressed
24 concerns about dragging your heels, basically, on the
25 part of the RUC at that stage in getting this strategy
19
1 to completion.
2 What do you say about that?
3 A. I was only made aware of this, and I am aware of
4 an internal memo that was only shown to me in May of
5 this year. I only met Mr Wood three times. In those
6 conversations, we were agreed that it was a worthwhile
7 strategy to pursue. The concern was over the level of
8 risk involved in doing it at the time of arrest.
9 In terms of the time-frames and we were dragging our
10 heels, I totally refute that, because, at the end of the
11 day, I could not do anything in January and February.
12 This takes a fair degree of planning for it to be
13 successful. The issues -- I am aware he raised an issue
14 of kit.
15 The priority certainly at that time was the
16 counter-terrorism remit. You have to work the
17 priorities there. We had to get further kit, but that's
18 because of other issues that were happening that the
19 police had to deal with.
20 Now, in our meeting of, I think it was March, we
21 agreed to a time-frame of the beginning of April. All
22 I can say is that Mr Wood was in agreement with the
23 time-frames involved.
24 Q. Right. So he wasn't telling you at the time that he
25 thought you were dragging your heels?
20
1 A. No.
2 Q. Right. One final point on this intrusive surveillance.
3 Mr Wood told us when he came to give evidence that he
4 was open to the prospect of going in before the arrests,
5 but nobody ever gave him a worked-out strategy for doing
6 that. Would you like to comment on that?
7 A. The issue was that the overt investigation was a very
8 live inquiry in producing good leads. Where the issue
9 changed, I think, was when the Ombudsman wished the
10 arrests to be done all together and as soon as
11 practicable.
12 I can understand those pressures. I do understand
13 that, but I am there trying to run a very difficult and
14 complex investigation and my view on it was that it was
15 slow and steady, methodical, and work it through for the
16 big result when it comes. That's what I wanted
17 Q. Right. Did you see that as an extension of what
18 Mr McBurney was up to or did you take the view you were
19 off in a different direction?
20 A. No. Mr McBurney and me discussed this and we were of
21 the view -- right up until Mr McBurney left the
22 investigation, I think around 13th December or so, me
23 and him were together on this.
24 Q. Right. I want to come back to this point about
25 Michael McKee.
21
1 You have told us that you had a disagreement with
2 the Ombudsman about the timing of his arrest. You
3 wanted to bag him first. Is that fair?
4 A. That's correct.
5 Q. Now, we know that Andrea McKee had been seen in June
6 before you came on board --
7 A. Yes.
8 Q. -- and had given a witness statement not under caution.
9 A. Yes.
10 Q. You went to see her again in October 2000, didn't you?
11 A. Yes, I did.
12 Q. And, again, interviewed her not under caution?
13 A. Correct.
14 Q. Presumably, the purpose of that was to get free
15 evidence, as it were, that could have been used by way
16 of a statement, at least in theory, against others. Is
17 that fair?
18 A. That's correct. What --
19 Q. Please go on.
20 A. The issue of interviewing Andrea McKee was also to give
21 me as much information to open up a number of
22 investigative leads.
23 Q. Right.
24 A. Had I cautioned her at that time, she would have been --
25 she could have took a view that, "I don't have to say
22
1 anything", because I would have had to caution her, and
2 that would have closed down one of the big potentials
3 I had in this investigation.
4 Q. Which is why I want to ask you about Michael McKee.
5 Why did you opt for arresting him and dealing with
6 him under caution at all rather than dealing with him in
7 the same way as you dealt with Andrea?
8 A. The issue of deciding -- Michael McKee and Andrea McKee
9 were bound up together. Now, at that time, we were
10 considering the arrest of Michael McKee. We also were
11 considering getting a legal perspective on how we deal
12 with Andrea McKee. Once we had all that sort of totally
13 decided, if it meant that we were going to go and arrest
14 Andrea, we would have done both arrests at the same time
15 and dealt with them both together, as in the way we
16 subsequently did.
17 Those two matters were running concurrently and we
18 would have pulled it together probably in the New Year
19 of 2001.
20 Q. I follow that. What I am interested in is this: was any
21 consideration given, not to arresting Michael McKee, but
22 rather to approaching him to see if he would help?
23 A. No. Our view was that we would arrest him.
24 Q. Okay. Can you tell us why?
25 A. Well, in my view, Andrea McKee was -- she was married to
23
1 Michael and I think she got caught up in the business
2 that was done between her husband and Robert Atkinson.
3 My view was that Michael McKee was certainly a principal
4 player, and I felt that he should face the wrath as
5 well, personally.
6 Q. I follow. I just want to press you on this, though, if
7 I may. If you had gone in and treated him as a witness
8 in the first place, that wouldn't have precluded you
9 from going on to prosecute him later, would it?
10 A. That's correct. I agree with that.
11 Q. This is not meant critically. I am just interested in
12 what the reasoning was and whose it was.
13 Was any consideration given to doing it that way?
14 A. Our view was that Michael McKee was a principal
15 conspirator and our view was that he should be arrested.
16 Q. Did you also regard him as a vital or important witness
17 against the Atkinsons?
18 A. He would have been considered that way, but we didn't
19 know what way he would approach the circumstances when
20 he was faced with it. It is true to say that when he
21 was arrested, interviewed and he admitted his part in
22 the conspiracy, he admitted his guilt at court and we
23 did give consideration after that to approaching him
24 with a view to seeing whether he would then give
25 evidence for the Crown against Robert Atkinson.
24
1 THE CHAIRMAN: I get the impression you were taking the view
2 that, as more seriously involved than his wife,
3 Michael McKee should be prosecuted and pay the
4 appropriate penalty, whereas you had not formed a view
5 that Mrs McKee should necessarily be prosecuted. Is
6 that right?
7 A. Yes. I think that is correct, Mr Chairman. I think
8 that we wanted to look at the issues that were open
9 to -- the options that were open to us in terms of best
10 presenting the evidence of Andrea McKee, because in the
11 nature of this conspiracy, we did need the evidence from
12 a conspirator within it to break it open. She did come
13 forward and she did provide absolutely critical
14 information that assisted us.
15 THE CHAIRMAN: When she was seen, was that without
16 prevarication?
17 A. Correct.
18 THE CHAIRMAN: No attempt to deny?
19 A. No.
20 THE CHAIRMAN: Would that be important in relation to her
21 character as a witness?
22 A. Yes, it would. When I spoke to her -- when I first met
23 her and spoke to her, I think it was in October 2000.
24 MR UNDERWOOD: Yes, it was.
25 A. I met a person who just wanted to tell her story. I had
25
1 no difficulty from her. She totally cooperated with me
2 and provided me with a very useful statement.
3 THE CHAIRMAN: Thank you.
4 MR UNDERWOOD: When, in due course, she was interviewed
5 under caution in 2001, can you shed any light on how the
6 transition went as far as her cooperation was concerned?
7 A. We met no difficulties with that. She did not know that
8 we were arriving to arrest her, but when we did that and
9 she was given legal advice, and we processed her on the
10 mainland, there was no difficulties with her telling her
11 story and admitting her part.
12 Q. For the sake of avoidance of any doubt, you believed her
13 then, did you?
14 A. Yes, I did.
15 Q. I want to move on and deal further with the way in which
16 the prosecution against Mr Atkinson went, but before
17 I do that, can I just get one thing clear?
18 If we look at page [81780], paragraphs 29 and 30,
19 you are dealing with a meeting of 5th December 2000. It
20 is one you have discussed already. It is a briefing
21 meeting I think with Mr Mahaffey. At paragraph 30 you
22 say:
23 "Later, Raymond Kitson from the DPP's office joined
24 the meeting and we discussed to how to use Andrea McKee
25 as a Crown witness. We needed to get evidence from
26
1 a key player inside the conspiracy and Andrea McKee was
2 that person. At the meeting we looked at legal issues
3 that we needed to consider if Andrea McKee was going to
4 give evidence for the Crown and how we would properly
5 present her as a witness of truth. We decided as
6 a group at that meeting that we would deal with
7 Andrea McKee and her criminality in the same way as the
8 other suspects, and then present her as a witness of
9 truth."
10 Do I take it from that that the DPP had no hand
11 whatever in deciding whether she or Michael McKee would
12 be prosecuted?
13 A. No, not at that point. Mr Kitson was very kind in
14 offering us a legal perspective, but certainly at that
15 moment in time the Director of Public Prosecutions could
16 not direct on the progress of an investigation and the
17 approach taken of a suspect, because she was a suspect
18 at that point.
19 Q. Again for clarity, even if you had asked him to give
20 advice, you were not concerned with what advice he was
21 going to give you, I take it, because, as far as you
22 were concerned, you were going to prosecute her and you
23 were going to prosecute her husband. Is that right?
24 A. That is correct. Because the decision, at that stage,
25 lies with the police.
27
1 Q. Thank you.
2 I want to move on to the events of late 2003/early
3 2004 with Andrea McKee. If we look at paragraph 65 of
4 your statement, which we can pick up at page [81787],
5 you start there referring to a journal entry about the
6 threatening letter purporting to come from the LVF.
7 Then you go on to talk about medical enquiries and so
8 on. It is that general area I want to talk about now,
9 if I may.
10 On the question of the threatening letter you spoke
11 to her about that, didn't you?
12 A. Yes, I did.
13 Q. Did she strike you as being genuine in her reaction to
14 that?
15 A. She did.
16 Q. A possibility arises, and it is this: that she was so
17 rattled by that arriving on the day that she was due to
18 give evidence, that she later just made up a complete
19 cock and bull story about the Pendine surgery in order
20 to get out of giving evidence.
21 What do you say about that?
22 A. I don't really think I am in a position to answer that.
23 Q. You saw her again, didn't you, after?
24 A. Yes, I did. My recollection is that when we interviewed
25 her about that, and we then initiated a witness
28
1 protection procedure with her, but she was still willing
2 to give evidence, I think, at that point.
3 Q. Okay. I will unpick all that now, if I may.
4 Firstly, we know you were kept involved when she
5 first rang up on the Sunday, on 21st December --
6 A. Yes.
7 Q. -- and you gave some directions about investigations of
8 the medical position.
9 A. Yes.
10 Q. Now, we know that something was said to the magistrate
11 about the need for an adjournment and what was going to
12 happen after that.
13 I take it you weren't at court, were you, on
14 the 22nd?
15 A. I would have to refer to my journal in relation to
16 that --
17 Q. All right.
18 A. -- but I am not sure whether I was there for the start
19 of the proceedings. I am not too sure on that one.
20 Q. If you don't have a recollection of it, then it doesn't
21 matter either way.
22 We know that police in Wrexham were asked then to
23 get some medical evidence of some description?
24 A. Yes.
25 Q. What they got by the end of the year was two statements
29
1 from the GP dealing with, in total, three visits; 1st
2 and 11th December, and 22nd December itself.
3 Were you ever asked to go back and improve on the
4 evidence of how ill the child had been?
5 A. My recollection tells me that there was issues raised in
6 the court by the defence. Now, I wasn't there for that
7 discussion, but I do recall having a conversation with
8 Mr Morrison of the DPP, who I think was at the court
9 that morning --
10 Q. So we gather.
11 A. -- and it appeared that we had to look at the issues
12 about the health of the child over that weekend which
13 would have prevented Andrea McKee from coming to court.
14 Q. Can I help you on this?
15 A. Yes.
16 Q. Let me just refresh your memory on the sequence of
17 events.
18 A. Yes.
19 Q. As of the 22nd, we have a note. Let's have a look at
20 it. It is page [34061]. This is Mr Morrison's note
21 apparently. If we can highlight the manuscript:
22 "Principal prosecution witness, Andrea McKee, unable
23 to travel from Wrexham, Wales, because her 2-year-old
24 son has mumps and swollen testes.
25 "Adjourned to 2nd January 2004 for provision of
30
1 certificate.
2 "To be relisted.
3 "Crown applied for 16th February.
4 "Date suitable to all is 8th March.
5 "Fixed for 8th March 2004."
6 What then happened was, because the GP himself was
7 unavailable to sign a certificate, that police actually
8 had to go and get witness statements dealing with that.
9 He missed a visit, so Andrea was spoken to again, as
10 we gather, on 30th December. On that date, for the
11 first time she said over the weekend she had gone to on
12 out-of-hours clinic and then investigations were
13 conducted into that.
14 I want to split this into two things. Firstly,
15 there is the investigation into the illness of the child
16 itself and what the magistrate was told on the 22nd, and
17 that we have there: mumps, swollen testes.
18 We know that the two statements eventually taken
19 from the GP recorded the actual, as it were, records of
20 the surgery about what had been diagnosed and
21 prescribed. We have no reason to believe that you were
22 ever asked or you ever directed anybody else to go and
23 interview the GP about what was actually wrong with the
24 child and what he told Andrea. Is that because that
25 didn't happen or was there some such thing?
31
1 A. My understanding was that we did talk to the GPs
2 concerned. During the course of examining the health of
3 the child over that particular weekend, it was
4 Andrea McKee who indicated the problems that happened
5 with the child over, I think, the Friday night into the
6 Saturday morning.
7 Q. Again, I can help with you that. You had interviews
8 taken of the doctors at the out-of-hours surgery.
9 A. So they had to be interviewed because she had indicated
10 that her child was sick over the weekend and that she
11 had seen a doctor at an emergency call-out facility.
12 Q. I follow that. What I am interested in is the diagnosis
13 that was presented to the magistrate on the 22nd: mumps
14 and swollen testes.
15 What you got back -- again to prompt your memory --
16 from the GP was: ear infection plus suspected mumps.
17 A. I remember that.
18 Q. If I take you -- see if this helps you -- to
19 page [59890], this is a note of a consultation -- let me
20 just get my copy up -- of 3rd March. It is the HOLMES
21 record of it, of rough notes. What we see at the top
22 is:
23 "IM", that's Mr Morrison, "explained the issue. We
24 know [child] was unwell but the Pendine matter is
25 causing a big problem."
32
1 Then she is asked after that about doctors at
2 Pendine.
3 The impression given by that -- tell me if this is
4 fair or not -- was that people were generally satisfied
5 that what the magistrate had been told was true: namely,
6 that mumps or suspected mumps was not the problem, but
7 that the problem has arisen that, when she came up on
8 the 30th with this further explanation about what she
9 had been doing over that weekend, there was no
10 substantiation for that. Is that fair?
11 A. Yes, I think it is, yes.
12 Q. So the question whether the child actually had mumps or
13 suspected mumps was not of any importance?
14 Again, I don't want to put words in your mouth about
15 this. Is that fair or is that something you cannot help
16 us with because of the passage of time?
17 A. Could you give me that question again?
18 Q. Yes. Two issues here.
19 A. Yes.
20 Q. Firstly, was the child as ill as the magistrate was
21 told? Secondly, was the child taken to Pendine?
22 Now, of course, there may be overlap between the
23 two.
24 A. Well, that's the point I was going to make. I think
25 there is an overlap. The issue was that, in my
33
1 recollection, in the court -- and I don't know if there
2 is a transcript available from the court -- I was made
3 aware that there was issues put up by the defence that
4 wanted to have the issues of Andrea McKee and the health
5 of this child investigated.
6 When we were working through that, Andrea had
7 indicated this problem with the child on the Friday
8 night and consequently we looked at that time and we
9 couldn't substantiate that.
10 Q. Again, it may be entirely impractical for me to try to
11 see these apart, and it is a matter in the end for the
12 Panel, but I just want to get as clear as I can about
13 this.
14 Was there satisfaction that the child was ill as of
15 the 22nd?
16 A. The child was seen by the doctor on the Monday morning.
17 The appointment I think was made by Andrea that morning
18 that she should have been in court in Craigavon.
19 Q. Uh-huh.
20 A. The doctor did note some problems with the child. So
21 there clearly is a problem with the child and these
22 issues have been going over, as I recall, a number of
23 weeks.
24 Q. Exactly. Again, help me about this. Again, if it is
25 inextricably all bound up and I am going up the wrong
34
1 blind alley here, the Panel will disentangle it at the
2 end of the day, but is it right that you didn't make
3 enquiries of the GP himself about how ill the child had
4 been over those weeks; in other words, by actually
5 interviewing him or taking a statement about the degree
6 of illness?
7 A. It is difficult for me to recall what we did action by
8 action, but I am of the view that a GP was spoken to,
9 her own GP, who confirmed the consultation on the
10 Monday, but the problem was that, as a preamble to that,
11 she had introduced the problems with the child over the
12 weekend, and we had to look at that, because it would
13 have become an issue subsequently at any court
14 proceedings.
15 It was disappointing, I must say, in relation to
16 that happening.
17 THE CHAIRMAN: Were you ever asked to see if you could learn
18 from the doctor for whether the child would have been
19 fit to travel to England (sic) on the day when his
20 mother should have appeared as a witness, 22nd December.
21 A. My recollection, Mr Chairman, is that on the Sunday when
22 we were speaking to her --
23 THE CHAIRMAN: Yes.
24 A. -- her concern was with the child fitting, as
25 I remember. Because of that, she wasn't prepared to
35
1 leave the child.
2 Now, we wanted to set up a child-minding facility
3 for her. We could have done that and we tried to talk
4 to her about that. I recall that she was going to
5 a medical examination the following day, the 23rd, in
6 relation to some application she was pursuing and,
7 I think, in the discussions we were having on the
8 Sunday, because she was also refusing to come across on
9 the Tuesday, because we would have been very happy to
10 try to get a delay, start the proceedings and then bring
11 Andrea forward on the Tuesday. That was an option we
12 were trying to pursue with her, but she didn't want to
13 do that.
14 Now, personally, I couldn't understand why she is
15 able to leave the child with her mother on the Tuesday
16 and go to a medical examination when she can't -- we
17 can't put in an arrangement on the Monday, and we tried
18 our best to persuade her to let us support her on that
19 Monday with regards to getting the child looked after
20 MR UNDERWOOD: Obviously you were at this consultation we
21 looked at that's still on screen in 2004.
22 Can you give us your impression after the discussion
23 where she was tested about the Pendine issue --
24 A. Yes.
25 Q. -- about her willingness to attend court after that?
36
1 A. She indicated that she had real fears after getting the
2 threatening letter. That arrived on, I think, the
3 morning of the 23rd. I think we were able to establish
4 that it went through the postal system on the Friday
5 night, I think from Northern Ireland.
6 Q. Uh-huh.
7 A. She did exhibit real fears at that point. I recall in
8 the discussions with the director -- the DPP directing
9 officers that we should now maybe start to consider the
10 issues of an intimidated witness, and I think that was
11 considered. She was still agreeing to give evidence.
12 Q. Uh-huh.
13 A. But clearly there was fears exhibited there. The
14 problem -- and if that is the document in which we put
15 to her about Pendine --
16 Q. Yes.
17 A. -- when she was absolutely certain she had done that --
18 Q. Yes, it is one of the versions of it, yes.
19 A. -- I mean, if you had asked me truthfully, I was
20 disappointed. I had my own concerns at that point.
21 Q. About?
22 A. Because I wasn't sure that she was telling the truth.
23 THE CHAIRMAN: About what?
24 A. About the Pendine surgery. I think we were trying to
25 say to her, "Look, there is no issue here. If you
37
1 didn't go, just say so, because these things happen."
2 We have these difficulties with witnesses all the
3 time --
4 MR UNDERWOOD: Uh-huh.
5 A. -- and we have to flexible in working around witnesses,
6 so -- it was unfortunate, but we were prepared to work
7 with that.
8 Q. Did this lie or concern about her telling the truth
9 about Pendine affect your view about her actual evidence
10 of the conspiracy?
11 A. Oh, not at all, no. Still to this day I believe that
12 Andrea McKee told the truth about her role and her
13 knowledge of what went on in 1997. I am convinced of it
14 to this day.
15 Q. I just want to show you, finally, a document at [20098].
16 This is the first page of it. What this is is the
17 transcript of the opening for the prosecution on her and
18 her husband's plea of guilty. Were you there?
19 A. I would have to ...
20 Q. Let's have a look into it. Let's have a look at the
21 next page, [20099]. Have a quick look by all means and
22 see if it refreshes your memory about whether you were
23 there.
24 A. Can I just refer to my own journal?
25 Q. Yes, of course.
38
1 A. What date was that, please?
2 Q. That was -- sorry, forgive me -- 7th May 2002.
3 A. Yes. Yes, I was.
4 Q. We can go through all of this by all means, but it sets
5 out the history of the cover-up of the telephone call.
6 Can I just take you to page [20103]? The second
7 paragraph starts:
8 "It is the prosecution case, your Honour, that both
9 persons", that's both McKees, "knew the reason why they
10 were being asked to say that Mr McKee had made the phone
11 call was to give a false alibi to the Reserve
12 Constable", that is Mr Atkinson, "knowing that he had
13 been (inaudible) (sic). Indeed, your Honour, they were aware
14 also, the prosecution say, that it would interfere with
15 investigations going on at the time. Those are the
16 fact, your Honour."
17 As far as you were concerned, that was a completely
18 accurate understanding of the conspiracy. Is that fair?
19 A. Yes.
20 Q. Is that still the case?
21 A. Yes.
22 MR UNDERWOOD: Thank you very much. Those are my questions.
23 THE CHAIRMAN: Yes, Mr Wolfe?
24 Questions from MR WOLFE
25 MR WOLFE: Good morning, Witness K. My name is Wolfe. I am
39
1 about to ask you some questions on behalf of the Police
2 Service. Could you tell us briefly what your objective
3 was when you were appointed to the investigation during
4 2000?
5 A. My objective was to investigate a tip-off allegation
6 concerning Robert Atkinson, to investigate that to its
7 fullest degree and to hopefully bring Robert Atkinson
8 and the conspirators to justice.
9 Q. In terms of the Police Service, can you say whether any
10 opposition or obstacle was placed in your way in terms
11 of where you could take that investigation?
12 A. None at all.
13 Q. In your view, was there any stone left unturned
14 ultimately in terms of where you took that
15 investigation?
16 A. In my view, in terms of where we took the investigation,
17 I think we did a thorough investigation. I think we
18 attempted to uncover all that we could. We attempted to
19 get the evidence because we were totally committed to
20 prosecuting certainly Robert Atkinson and the other
21 conspirators.
22 The other issue aligned to that was the murder,
23 which we never forgot about.
24 Q. Yes.
25 A. We always kept sight of that, particularly in relation
40
1 to what we may uncover in relation to the
2 Atkinson/Hanvey relationship.
3 Q. Now, we know that Mr Stewart came into the investigation
4 in mid-December.
5 A. Yes.
6 Q. You and he worked very much as a team, as I understand
7 it.
8 A. Yes.
9 Q. I also understand that he, at least, and perhaps
10 yourself, had the ear of the chief constable, and
11 certainly there were contacts with the chief constable
12 during this period --
13 A. Yes.
14 Q. -- to deal with certain aspects of the investigation.
15 A. Yes.
16 Q. Was it your impression that -- let's just clarify: did
17 you have meetings with the chief constable?
18 A. No.
19 Q. Was it your impression through Mr Stewart that the chief
20 constable was very much interested in the progress of
21 the investigation?
22 A. Very much so.
23 Q. Now, you have referred to what you described as
24 a partnership with the Police Ombudsman.
25 A. Yes.
41
1 Q. Clearly they shared your objective of putting together
2 as much evidence as possible to bring this matter to
3 a successful conclusion.
4 A. I would have to agree with that, yes.
5 Q. Now, what appears to be emerging from the evidence of
6 Mr Wood last week, and indeed your evidence today, is
7 something of a tension, and I would ask you perhaps to
8 comment on this.
9 It would appear to have been Mr Wood's objective to
10 have the arrests carried out as soon as possible. Is
11 that fair?
12 A. I think we would all have liked to have seen the arrests
13 done as soon as possible and particularly in the wider
14 circumstances of the investigation --
15 Q. Yes.
16 A. -- but my own view was that we needed to move sure and
17 steady through this --
18 Q. Yes.
19 A. -- and that's the way we were going. They did have
20 a view that we should speed along with the arrests.
21 I think perhaps they could have come to that opinion
22 because we had done actually quite a bit from June to
23 November and I think that the audit trail within the
24 HOLMES system that recorded the actions and decisions
25 that we, as the team, were doing, I think are
42
1 a testament to that, because it clearly audits what we
2 were actually doing, but there was still more work to be
3 done
4 Q. Yes.
5 A. We wanted to ensure that we were keeping very much some
6 of these other options alive.
7 Q. Perhaps the problem here -- and you will have
8 an opportunity to comment on it -- is that the
9 Ombudsman's problems and priorities were perhaps, in the
10 operational sense, different to your problems and
11 priorities.
12 Do you understand what I mean by that?
13 A. I think you would have to clarify that, please.
14 Q. Well, you, I think, have told us in your evidence
15 essentially the Ombudsman wanted the arrests done as
16 soon as possible, as did you.
17 A. Yes.
18 Q. But you I think are suggesting that there were various
19 obstacles that had to be -- maybe I will express it
20 slightly differently -- there were various things that
21 had to be done in order to get the arrests and the
22 surveillance strategy right. You didn't want it to
23 fail.
24 A. Oh, absolutely, we didn't want it to fail. I mean, what
25 must be very clear is that the objective that we both
43
1 had as two organisations was the same.
2 Q. Uh-huh.
3 A. I am absolutely clear about that. The issue of working
4 in partnership arrangements is that sometimes people see
5 the journey as different. That shouldn't be
6 an obstacle. You should be able to talk through these
7 issues, and we were talking through the issues.
8 Q. Yes. This brings me to my final point. The Panel heard
9 the evidence of Mr Wood --
10 A. Yes.
11 Q. -- and will be considering the impression which his
12 evidence formed upon them.
13 One view might be taken that he was suggesting,
14 albeit in the politest possible way perhaps, that there
15 was an ineptitude on the part of the police, certainly
16 around the question of surveillance, an element of
17 dragging heels. I think from listening to your evidence
18 so far, that was not at all made clear to you at the
19 time, contemporaneously.
20 A. I first met Mr Mahaffey at the end of November.
21 I didn't actually meet Mr Wood until 6th March. We were
22 working closely with Mr Mahaffey, and my recollection at
23 the time was that he was very happy with where we had
24 taken the investigation to date and where we were going
25 to, and I didn't detect any of these problems. So I am
44
1 actually surprised at some of Mr Wood's assertions.
2 My own view is that we carried out an effective and
3 thorough investigation. That will be judged best by
4 others
5 Q. Of course.
6 A. The evidence is there in the time-line of investigations
7 to look at that and I will leave others to judge that.
8 MR WOLFE: Of course. Thank you for your help.
9 MR McGRORY: I have a small number of questions, but
10 I wonder, would it be an appropriate time to have
11 a short comfort break?
12 THE CHAIRMAN: Very well.
13 MR McGRORY: Can I ask for one personally, if you don't
14 mind.
15 THE CHAIRMAN: You were not being simply altruistic?
16 MR McGRORY: No.
17 THE CHAIRMAN: Fifteen minutes.
18 (11.50 am)
19 (A short break)
20 (12.05 pm)
21 THE CHAIRMAN: Yes, Mr McGrory?
22 Questions from MR McGRORY
23 MR McGRORY: Thank you, sir.
24 Now, Mr K, I think our paths have crossed before in
25 the context of this case, so no introductions are
45
1 required.
2 I will not keep you very long. Can I just ask you
3 firstly about this issue about whether or not the manner
4 in which the surveillance operation was commenced, in
5 terms of it happening on the day of the arrest and all
6 of that, was the reason for the compromising of the
7 operation or whether or not there was a direct tip-off
8 to Atkinson in 2003 that he was, in fact, about to be
9 the subject of a covert surveillance?
10 You are aware that that was an issue; that there was
11 a suggestion that he might have been tipped off then in
12 2003?
13 A. Sorry, in 2003?
14 Q. Yes. Have I got the date wrong? Sorry, 2001. My
15 apologies. 2001. Sorry, 2001.
16 A. No, I wasn't aware of that. Just clarify what you mean,
17 if you could, please.
18 Q. Yes. Mr Wood told us a few days ago --
19 A. Right. Okay.
20 Q. -- that he believed, or that there was a belief, that
21 Atkinson was tipped off by someone within the RUC in
22 2001 that there was a bug planted in his house, that it
23 wasn't the fact that he caught on because of the manner
24 in which he was arrested and the Land Rovers in the
25 street and so forth.
46
1 So, do you accept this was an issue, a question that
2 was raised as to whether or not he was tipped off?
3 A. Mr Wood raised that issue. What I can say to the
4 Inquiry is that on the night that Atkinson was released
5 my recollection is, and I am aware, that within minutes
6 of him returning home, he had suspicions that he had --
7 there had been a bug placed in his house. From that
8 moment that he arrived home that night, he then made
9 a number of enquiries with regards to people living
10 close by as to what had been seen at his house that
11 morning, and I think that, on the first night, he
12 actually started a cursory search and that continued
13 throughout the ten days.
14 Periodically, he would take periods where he would
15 start searching the house and dismantling various bits
16 of furniture, etc, in the house.
17 The point I am making is that I am satisfied that,
18 from the moment he arrived home, his suspicions were
19 there, alerted and he started looking for a listening
20 device
21 Q. But that is just as consistent with his perhaps having
22 been tipped off that something was about to happen to
23 trigger covert surveillance as it is with his guessing
24 that that's, in fact, what was going on?
25 A. There was no intelligence information or whatever in
47
1 this investigation to indicate that Atkinson had been
2 tipped off prior to that operation --
3 Q. Yes --
4 A. -- please, if I may -- prior to that operation being
5 implemented. Mr Wood raised the issue, because of the
6 visit of a police officer during the course of the
7 operation when the covert listening device was still in
8 operation.
9 THE CHAIRMAN: Mr Wood told us that there had been
10 an investigation within the RUC. Is that right? Had
11 there been?
12 A. We were aware that an officer had, during the course of
13 the operation, Mr Chairman, visited Atkinson at his
14 home. We monitored that visit and we monitored the
15 conversations. My recollection is that, when the
16 officer visited the house, Atkinson put him immediately
17 on his guard and basically said to him, "Just be careful
18 what you're talking about in here because I believe my
19 house is bugged".
20 As a consequence of that, we made a decision to
21 interview that officer and that officer was interviewed
22 in relation to his visit to the house and more generally
23 about his relationship with Atkinson. We wanted to
24 establish whether he knew anything. We were quite
25 satisfied that he had not been previously aware of the
48
1 operation, but we were also keen just to talk to him as
2 well in relation to whether he had any information that
3 he could impart to us about Atkinson himself.
4 I hope that is helpful.
5 THE CHAIRMAN: Thank you. When you say, "He had not been
6 aware", that is the officer?
7 A. Who visited him.
8 THE CHAIRMAN: Thank you.
9 MR McGRORY: Yes. Can I perhaps have document [14502],
10 please? This is a memorandum to Detective Chief
11 Superintendent Stewart from, we believe, Inspector Todd.
12 Now, if we go to the third paragraph:
13 "There was concern as to how the equipment used in
14 this surveillance had come to be compromised, and the
15 enquiry wished to establish if Atkinson had been made
16 aware of the existence of the equipment from within the
17 Police Service."
18 So is this not evidence that, in fact, there was
19 a genuine concern within the RUC that the operation
20 might have been compromised by way of a tip-off?
21 A. I can't account for the way in which that's written,
22 Mr McGrory. What I will say is that there was no
23 evidence or information available to us which would have
24 indicated that that was compromised from within the RUC.
25 Q. No, but that's not what I'm asking you. What I am
49
1 asking you is that the possibility of it being
2 compromised by a tip-off to Atkinson was countenanced by
3 virtue of the fact that there was an investigation
4 commenced?
5 A. There was an investigation commenced as regards the
6 visitation and to establish what the officer was calling
7 with Atkinson about and generally to look at why he had
8 called that day. The indications to us were that, at
9 the beginning of that visitation, Atkinson had alerted
10 him to his suspicions.
11 Q. But while I understand what you are saying, Mr K, that
12 no evidence was uncovered of a tip-off, but the
13 possibility of a tip-off -- and this was my original
14 question -- is every bit as consistent a reason for his
15 apparent knowledge or suspicion as anything else?
16 A. I don't believe that he did receive a tip-off and that
17 is my view.
18 Q. You have already stated that, but will you accept the
19 contention that they are equally consistent as reasons
20 for his belief that he was being bugged?
21 A. No. The issue is that, from when he arrived home, the
22 conversations that I am aware of indicate to me that he
23 was making his own enquiries to establish if he could
24 provide a rationale for his own suspicion.
25 Q. I am only going to ask you one more question about this,
50
1 because I want to move on to another subject, but if he
2 had been tipped off that he was going to be the subject
3 of covert surveillance, wouldn't the arrest have alerted
4 him to the fact that this was now a very real danger?
5 A. Could you frame that question another way to help me
6 understand it, please?
7 Q. Well, I am not suggesting that there is evidence that he
8 was actually tipped off that he was going to be the
9 subject of covert surveillance, but, had he been -- had
10 he been -- the event of the arrest would have been
11 something which would have triggered his alertness to
12 it?
13 A. I am trying to be as helpful as I can, but you have said
14 "had he been". For me, that's in the realms of
15 speculation and I don't want to go there, because I have
16 no evidence or information that indicated that he was
17 tipped off from within the RUC.
18 THE CHAIRMAN: I think it really becomes a matter of comment
19 for us to consider.
20 MR McGRORY: I accept that, sir.
21 I'll move on to another subject, Mr K.
22 Now, can I ask you just about the investigation into
23 Andrea McKee's non-appearance on 22nd October 2003?
24 Essentially, would you agree that what had happened here
25 was that she did not turn up on 22nd October? A reason
51
1 for her non-appearance was proffered -- 22nd December,
2 sorry.
3 A. Yes.
4 Q. A reason for her non-appearance was proffered to do with
5 the sickness of her child and some detail was given.
6 The magistrate asked for that to be verified.
7 What I am going to suggest to you is unusual about
8 this is that a team of detectives, including yourself,
9 headed over to Wales to investigate this.
10 In your experience, was that an unusual way to
11 address a request of this kind from a magistrate?
12 A. My recollection is that the magistrate wanted the matter
13 examined, and it wasn't that we all got on a plane and
14 headed across the water to the mainland. The initial,
15 I think, enquiry was done by the local police, and when
16 we went across to speak to her, it was purely only to do
17 initially, I think, with regards to why she didn't
18 attend. The problem emerged when she brought up issues
19 about the health of her child over the weekend.
20 Q. Was that something which was of personal concern to you
21 or did the officer in the DPP who was dealing with it
22 raise it with you as something that he wanted further
23 investigation in relation to?
24 A. No. I think that whenever we got the information, we
25 expected to make the enquiry and to confirm it. I think
52
1 that was our honest belief. We expected to get
2 confirmation of the fact that the child had been ill
3 late on the Friday night into the Saturday morning, and
4 we would have presented that back to the magistrate.
5 Q. Did you then discuss the fact that that hadn't been
6 borne out that she had been to the Pendine surgery with
7 anyone within the office of the DPP and how that might
8 affect her evidence?
9 A. Yes, there was meetings with the directing officer.
10 Q. Because what you have told us today is that it hasn't
11 shaken for one moment your belief that she was telling
12 the truth about the matter about which she was to give
13 evidence, which is giving the fake alibi.
14 So what I am concerned to know is whether or not
15 there was a discussion amongst you, as the investigator
16 who had uncovered the fact that she may not have gone to
17 the surgery, and the prosecutors, as to, "Well, what
18 damage does this belief that she might not have gone to
19 Pendine do the actual case?"
20 A. The issue for the police was that our enquiries were put
21 before the directing officer. The issue for the
22 prosecuting authority was that they had the job, at that
23 point, of presenting her as a witness of truth. Now,
24 the decisions taken around that are taken by other
25 people and not by myself.
53
1 I still believe to this day that Andrea McKee told
2 the truth whenever she admitted to her part in it and
3 was subsequently convicted of it.
4 Q. Was your view canvassed about that by the DPP?
5 A. Yes, it was.
6 Q. And we can assume that you expressed it in similarly
7 robust terms?
8 A. Absolutely, because, I mean, after those meetings,
9 I mean, we then put in a strategy which we wanted to
10 work with with Andrea McKee in terms of putting her on
11 to a witness protection scheme.
12 Q. So it remained your intention to use her as a witness in
13 respect of the fake alibi?
14 A. Absolutely. I wasn't sure, to be honest with you -- and
15 let's be real here -- it was the week of Christmas, and
16 I think we have to just consider that.
17 Q. Yes. Absolutely. Did anyone ever say, "Well, you can
18 hardly blame her on 22nd December"?
19 A. No, not at all. The issue is that we wanted her there
20 that day, and, in fact, we actually tried to put in some
21 arrangements to actually support that, and we were
22 actually even prepared to bring her the following day.
23 Q. Just on the point of the following day, you mentioned in
24 your earlier evidence that you were surprised that she
25 was prepared to leave her child the following day to go
54
1 to the medical examination but not on the day she was
2 supposed to give evidence. I think you said something
3 like that earlier.
4 Can I ask you: is it not quite a different thing to
5 perhaps leave a sick child with your mother for an hour
6 to go to a medical appointment than it is to leave the
7 country for a full day? Would you agree they are two
8 quite different things from a mother's perspective?
9 A. That is possibly so, yes.
10 Q. Can I move on just, Inspector K, to all of those things
11 in general terms that you did when you took over this
12 investigation? I don't think it will come as any
13 surprise to you that there is no suggestion from the
14 Hamill family that you did anything other than
15 investigate the murder and, indeed, the suggestion of
16 the tipping-off allegation and the fake alibi in
17 anything other than a thorough and professional manner?
18 A. Thank you.
19 Q. You did quite a number of things which were not done in
20 1997, and I will give some examples.
21 In terms of the investigations into the alibi as to,
22 for example, what the real movements of the McKees might
23 have been, in terms of investigating their social
24 contacts, investigations about taxis and so forth. Do
25 you know what I am talking about?
55
1 A. Yes, I do.
2 Q. In terms of whether or not they were in the company of
3 the Smiths?
4 A. Yes, I do.
5 Q. In terms of whether or not the Atkinsons could have been
6 where they said they were when they took the phone
7 calls, for example, Eleanor Atkinson, her work schedule
8 and things like that?
9 A. Yes.
10 Q. In terms of the investigation about the jacket, in terms
11 of whether or not a jacket as described, the silver
12 jacket with the orange stripes, could have been
13 purchased and where it was purchased?
14 A. Yes.
15 Q. Would it be fair to say that those investigations could
16 have been conducted in 1997?
17 A. Yes, I think they could have.
18 Q. And that, had they been conducted in 1997, they might
19 have borne more fruit in the sense that some of the
20 difficulties you encountered in 2000 you might not have
21 encountered?
22 A. That's a distinct possibility.
23 Q. I am thinking simply, for example, in terms of the
24 tracing of the jacket --
25 A. Absolutely.
56
1 Q. -- and the paper trail and that sort of thing --
2 A. And people's recollections, and audit trails --
3 Q. -- and people's memories and so forth three years later.
4 A. Yes.
5 Q. One final issue that I think in fairness I need to put
6 to you, and this is something about which Mr Wood gave
7 evidence the other day.
8 The memorandum that he took, the controversial
9 memorandum, if I may say. The page of it I want to
10 refer you to is [75208]. It is the middle
11 section there:
12 "On 23rd February, DCI K ..."
13 I just take you through this, because he has
14 commented on this and I think it is fair you should too:
15 "... raised further concern on the arrest and
16 proactive strategy against Atkinson. The reasons he
17 gave", this is you he is referring to, "were:
18 "Atkinson seen as a local hero by one section of the
19 community."
20 Then there is a redacted section. Then it goes on
21 to say:
22 "A real risk of compromise with Atkinson finding the
23 equipment. This would result in:
24 "One section of the community being incensed that
25 police are devoting such resources to this particular
57
1 enquiry.
2 "The other section incensed as to why nothing was
3 done before and that these factors could further place
4 him and his team at risk to attack.
5 "There is a feeling in the local police that
6 Atkinson is being persecuted and such deployment would
7 have severe morale implications for the police."
8 Now, the gist of what Mr Wood was saying is that he
9 felt they had encountered, the Ombudsman people had
10 encountered, a lack of appetite within the RUC to
11 rigorously investigate Atkinson in respect of the
12 tipping-off allegation, and that that lack of appetite
13 was evidenced or expressed in terms, "Look, this guy is
14 some sort of a local hero now. Whatever people may have
15 thought about him in the past, he is a local hero now.
16 You go after him, it is going to do a number of things.
17 Firstly, it is going to affect morale within the police.
18 Secondly, it is going to raise community tensions."
19 Now, I would suggest to you that if those things
20 were said and if those attitudes were revealed as
21 reasons for not going after Atkinson, that would have
22 been a disgrace. Do you agree with that?
23 A. Yes.
24 Q. Now, in fairness to you, what do you say about what
25 Mr Wood has said you and others said to him?
58
1 A. Sorry. In relation to this?
2 Q. Yes. He said:
3 "On 23rd February DCI K raised further concern on
4 the arrest ..."
5 Mr Adair will have further questions for you.
6 A. Of course.
7 Q. He says he met you on 23rd February.
8 A. On 23rd February I did not meet Mr Wood. On
9 23rd February I was actually on leave and I agreed to
10 come in to facilitate Mr Mahaffey to interview DCI --
11 I don't think --
12 Q. I think Mr Wood left open the possibility --
13 A. -- P39.
14 Q. -- that this memorandum was an amalgam of things that
15 may have been said to him and things that were said to
16 Mr Mahaffey?
17 A. I didn't meet Mr Wood until 6th March. I only became
18 aware of that in May of this year.
19 Now, on 23rd February, I did have a discussion with
20 Chris Mahaffey and the issue that I was concerned about,
21 which I had discussed with him before, was the
22 consequences of failure.
23 This investigation was a very complex one. It was
24 characterised by lies, uncooperation, retraction,
25 intimidation, and in amongst all of that we wanted to
59
1 ensure that we could get the evidence to deal with
2 Atkinson.
3 Now, it was against that backdrop, because the issue
4 was not about doing it, the issue was about failure, and
5 I was not totally convinced that this matter would not
6 -- the installation would not be compromised. I need to
7 lay that out.
8 I have never said that Atkinson was a local hero.
9 What I did say to Mr Mahaffey, and I later said to
10 Mr Wood, was that, in 1997, a number of people were
11 charged and that prosecution later fell apart. At that
12 time, those people were looked upon in Portadown as
13 local heroes.
14 What I didn't want, and I talk here for myself and
15 Mr Stewart and Mr McBurney, is that we did not want to
16 lose out on the strategy, lose out on the evidence, and
17 essentially, in that context, I didn't want Atkinson
18 seen as some sort of local hero in the community.
19 I wasn't saying that he was a local hero. Far from it.
20 I was trying to give the Ombudsman that perspective,
21 because what I didn't want was this thing compromised.
22 I didn't want Atkinson standing holding a device and
23 I didn't want to lose the opportunity
24 MR McGRORY: Very well. Thank you.
25
60
1 Questions from MR MALLON
2 MR MALLON: My name is Mallon. I appear on behalf of Mr and
3 Mrs Atkinson. I will be asking you a few questions.
4 [nineteen lines redacted]
61
1 A. [one line redacted].
2 MR MALLON: In respect of all of that investigation, the
3 only information you got of calls between the Atkinsons,
4 and the Hanveys were two calls. Isn't that correct?
5 A. That's correct.
6 Q. There wasn't a series of calls in connection --
7 MR WOLFE: Sir, I think I share my learned friend's concerns
8 about this. Really, that's the same question in another
9 fashion.
10 MR MALLON: With respect, it is not, because the evidence
11 has already been given that there were two calls between
12 the Hanveys and the Atkinsons. I was merely confirming
13 that, of all of the evidence, those were the only two
14 contacts. I am going no further than that.
15 THE CHAIRMAN: Very well.
16 MR MALLON: In relation to the bullets that were lost by
17 Mr Atkinson, you also looked into that. Isn't that
18 correct?
19 A. That is correct.
20 Q. None of those are in any way connected with the bullet
21 that was found in the letter to Mr Michael McKee?
22 A. No.
23 Q. In relation to the clothing, at that time you also
24 instigated a very thorough investigation into the
25 clothing that was bought by Tracey Clarke in the
62
1 December before this incident, 1996?
2 A. That's correct.
3 Q. You spoke to Mr Julian Lyons. Isn't that correct?
4 A. My team did, yes.
5 Q. Your team produced evidence, the information from him,
6 in a very clear statement that the only jacket that he
7 sold to her was a blue Puffa jacket. Isn't that
8 correct?
9 A. That is correct.
10 Q. Your team also tried to get him and suggest to him that
11 he might have sold a silver jacket?
12 A. That is correct.
13 Q. He refused to include that in his statement. Isn't that
14 correct?
15 A. That is correct.
16 Q. He also indicated that the jacket that was brought to
17 him to be repaired was a blue Puffa jacket and that he
18 could remember that. Isn't that correct?
19 A. That is correct.
20 Q. He could at no time remember selling a silver jacket to
21 either Tracey Clarke or to Mr Hanvey?
22 A. He couldn't recall it, but it doesn't mean he didn't.
23 Q. With respect to that, if you look at the statements of
24 [Tracey's mother] and of Jim Murray, they both indicate
25 that only one jacket was laid over and was paid for on
63
1 instalments. That is correct?
2 A. That's correct.
3 Q. The only jacket that was paid for at that time was the
4 blue Daniel Poole jacket. Were you ever --
5 THE CHAIRMAN: Mr Mallon, this is a series of questions
6 which is simply repeating evidence we have already heard
7 and about which submissions will be able to be made
8 later.
9 MR MALLON: Yes.
10 THE CHAIRMAN: What is this adding to that? If it is simply
11 to remind us, there is no need.
12 MR MALLON: No, it is not that. It is much more detailed
13 than that.
14 In respect --
15 THE CHAIRMAN: No, forgive me, you are going to tell me what
16 it is adding. Before you go on, I want to know.
17 MR MALLON: The suggestion has been made that a silver
18 jacket may have been purchased or sold. I want to find
19 out on what that is based, because certainly there is no
20 evidence of it.
21 THE CHAIRMAN: Well, you can ask the witness if he knows on
22 which basis that suggestion has been made.
23 MR MALLON: When you went and you looked at the
24 manufacturers of Skanx jackets, did any of them ever
25 indicated the precise jacket that was supplied to
64
1 Mr Lyons?
2 A. I'm trying to recall as best I can in the years that
3 have elapsed. I don't think they could give us total
4 clarity on that.
5 Q. So there must always be a doubt as to whether even the
6 jackets were supplied to --
7 THE CHAIRMAN: That's a comment. That's comment which can
8 be made later.
9 MR MALLON: Yes. As a result of that, were you ever able to
10 definitively prove that a silver jacket with half orange
11 striped sleeves was ever supplied to Paranoid?
12 A. In terms of definitively proving it, the answer to that
13 is no.
14 Q. Now, having discovered that the only jacket that was
15 purchased on a layover basis was the blue jacket, did
16 you ever find any evidence of Tracey Clarke, or anyone,
17 purchasing a jacket from them of a silver nature?
18 A. As I recall, the records which may have given us the
19 evidence of that were discarded, I think, some months
20 before we actually identified and investigated the lead.
21 Q. Then if I can go on to another matter, you also
22 instigated a search in the house of Allister Hanvey and
23 Tracey Clarke. You were looking for photographs.
24 A. Yes.
25 Q. Did you ever find any photographs or anything to suggest
65
1 a silver jacket was ever worn?
2 A. No.
3 Q. Having exhausted that with you then, in relation to the
4 threatening letter that was received by Andrea McKee,
5 were you ever able to come to a definitive decision as
6 to whether or not that was actually a threatening letter
7 or whether it might have been sent at her request to
8 her? There was some suspicion about that, wasn't there?
9 A. No, there wasn't.
10 Q. There wasn't?
11 A. No, there wasn't.
12 Q. You were quite certain that there was a threat --
13 A. We treated that as a threat.
14 Q. Who had her address?
15 A. My recollection is she had one, I think, point of
16 contact in Portadown at that time.
17 Q. Were any fingerprints found on it other than hers?
18 A. There is fingerprints on it that remain outstanding to
19 this day.
20 Q. Was her friend contacted and fingerprints taken from
21 her?
22 A. No.
23 Q. In relation to the period surrounding the first
24 application on 22nd December, were you present in court
25 when that application was made?
66
1 A. Yes, I think I may have been.
2 Q. Yes. That adjournment application was the subject of
3 applications by the defence, wasn't it?
4 A. I remember something about that, but I wasn't in the
5 courtroom all the time. I do remember issues the
6 defence were raising, but without reference to the
7 transcript of the court, or other people having notes,
8 it would be difficult for me to recollect.
9 Q. I suggest as a result of those representations the
10 magistrate was put on question and put you on -- and put
11 the prosecution and police on question in respect of the
12 actual condition of the child?
13 A. There was an issue raised by the defence, yes.
14 Q. The child in the court was described as having mumps,
15 possibly an ear infection, swollen testicles, and also
16 was fitting as in having fits, and it was a very serious
17 condition that was outlined to the court.
18 Is that how you remember it?
19 A. I couldn't remember that detail, but, as I say, I was
20 going in and out of the ...
21 Q. Yes. Was fitting mentioned that you can remember in the
22 court?
23 A. I think it was mentioned, yes.
24 Q. Yes, and fitting was considered by the magistrate as
25 serious; not just earache, not just mumps, but the child
67
1 actually fitting.
2 Now, as a result of what you heard in the court and
3 what you knew to be the issue which had been raised by
4 the defence, did you then go and look very carefully at
5 not only what his mother was saying, but what the actual
6 medical evidence was with regard to the condition of the
7 child?
8 A. Yes, we did.
9 Q. That was as a result of what the magistrate had raised
10 in court?
11 A. I think there was a direction from the magistrate, yes.
12 Q. Then, when you looked into that, it must have become
13 apparent to you that you had not been told the truth?
14 A. In relation to what?
15 Q. The condition of the child, the actual condition of the
16 child?
17 A. The medical evidence -- and I haven't seen that for
18 years now, and I have to refer to that. The issue of
19 the child, as I recall, was a problem and had been going
20 since the start of December in relation to swollen
21 glands, ear infection.
22 Q. Indeed.
23 A. But in terms of the specifics of that, Mr Mallon,
24 I would need to refer -- I would need to be referred to
25 the notes.
68
1 Q. Well, we will be dealing with it with other witnesses
2 who are perhaps more au fait with it.
3 Did you ever find evidence that on the day that
4 Andrea -- or the night before Andrea McKee was due to
5 give evidence, that that child was fitting?
6 A. No.
7 Q. Did you ever get any evidence that that child was even
8 seriously ill on the night before, not just an earache,
9 not just possible mumps, but really ill, temperature,
10 anything of that nature?
11 A. Our understanding was that Andrea couldn't travel
12 because she had said that the child was running --
13 I mean -- running a temperature, swollen glands and
14 I think there was an issue around her -- the child
15 fitting, but I think that came from Andrea, and that's
16 the -- what we were picking up and talking to her,
17 I think, during the course of the Sunday.
18 Q. So you found out that the child might not have been as
19 seriously ill as you thought. Then Andrea directed you
20 to the Pendine Medical Centre?
21 A. That's correct.
22 Q. Did it occur to you that she was fabricating a complex
23 lie to deceive you?
24 A. No.
25 Q. When did you become aware that she had fabricated
69
1 a complicated lie to deceive you?
2 A. The question emerged when we had made the enquiries.
3 Q. So as you were making the enquiries, the veil was lifted
4 from your eyes and you could see that what she had told
5 you was not true, could never be substantiated?
6 A. What she had said we could not substantiate.
7 Q. Were you there when she sat in with Christine Smith and
8 Gerry Simpson?
9 A. What date was that?
10 Q. I am sorry.
11 MR EMMERSON: 9th January for Christine Smith and 3rd March
12 for Mr Simpson.
13 MR MALLON: Let's go to 3rd March with Mr Simpson.
14 A. That's 3rd March '04 or is it '03?
15 Q. 2004.
16 A. I don't have a record of it here. So I am not sure
17 whether I attended that.
18 Q. Right.
19 A. Well, on 3rd March '04?
20 Q. Yes.
21 A. No.
22 Q. Do you remember on 17th February --
23 THE CHAIRMAN: This is '04 still?
24 MR MALLON: Yes. Just a second. Yes. A meeting held on
25 17th February 2004 to discuss the case and present were
70
1 Gerald Simpson, Ivor Morrison and Acting Detective
2 Superintendent K.
3 A. Yes. What date was that?
4 Q. 17th February.
5 A. Okay. Yes.
6 MR EMMERSON: Just to be absolutely clear so all parties are
7 absolutely certain about that, that's a different
8 meeting from the consultation.
9 THE CHAIRMAN: Thank you.
10 MR EMMERSON: Andrea McKee was not present at that meeting.
11 That was a meeting as between counsel, instructing
12 solicitor and police officers.
13 THE CHAIRMAN: Thank you.
14 You say you were at that meeting?
15 A. Oh, yes, I was, Mr Chairman.
16 MR MALLON: As a result of those consultations, did it
17 become clear to you that Andrea McKee's credibility was
18 such that she might not be able to be put forward as
19 a witness of truth? Do you recollect that?
20 A. Yes, I think that was part of the discussion. I think
21 that was something that Mr Simpson had to give
22 consideration to.
23 Q. As you were having that meeting and discussing
24 Andrea McKee, her untruthfulness was made apparent to
25 you, wasn't it?
71
1 A. The untruthfulness in respect of what she said about the
2 ill-health of the child over the weekend.
3 Q. Yes. She told bare-faced lies. She shocked a senior
4 counsel with her untruthfulness. Are you aware of that?
5 A. Yes, I am.
6 Q. Were you also aware that not only was she capable of
7 shocking him, but she was capable of manipulating
8 situations and lies in a way that he found totally
9 unacceptable?
10 A. I am aware of that assessment.
11 Q. Were you aware that she had attempted to blackmail her
12 husband?
13 A. I was aware of that, yes.
14 Q. Were you aware that she had sat opposite
15 Detective Inspector Irwin and told lies into his face,
16 knowing that he knew the truth?
17 A. I'm aware of that.
18 Q. Did it occur to you that by persisting in this
19 bare-faced lie about Pendine, she had reckoned that she
20 would never have to give evidence, because she was known
21 as such a liar, and that was her strategy: be shown, be
22 caught and persist in a bare-faced lie, in the face of
23 a police investigation, so that they would know they
24 were dealing with a witness of untruth.
25 Did that occur to you?
72
1 A. The issue of the Pendine surgery was unfortunate, but
2 I am still convinced that Andrea McKee had admitted and
3 been truthful in her admissions about the role that she
4 played inside the conspiracy with her husband and
5 Atkinson.
6 Q. I believe --
7 A. She -- sorry.
8 Q. Sorry, are you continuing?
9 THE CHAIRMAN: Yes. Finish your answer, please, will you?
10 A. She pleaded guilty at a court, and in terms of some
11 investigations that we did carry out, we were to find
12 some corroboration for what she said.
13 MR MALLON: Now, that is your view and you are entitled to
14 it. I will not take it from you.
15 Tell me this: why did she lie about Pendine?
16 A. I can't answer that.
17 Q. Why did she lie to Detective Inspector Irwin?
18 A. I can't answer that.
19 MR UNDERWOOD: I wonder if my friend would clarify what lie
20 his case is that Andrea McKee told to
21 Detective Inspector Irwin.
22 MR MALLON: In respect of the statement that she sat and
23 made about her husband making a telephone call when she
24 had told a completely different story to Tracey Clarke.
25 She is capable, I suggest to you, of telling the truth,
73
1 telling a lie, telling the truth, telling a lie and
2 nobody knows why. You certainly don't. She is capable
3 of pulling --
4 THE CHAIRMAN: How many questions is this?
5 MR MALLON: I have finished. I have made the point.
6 I don't think I can do it any better. Thank you.
7 THE CHAIRMAN: Don't bother to answer.
8 Yes, Mr McComb?
9 Questions from MR McCOMB
10 MR McCOMB: The reason why I came in in front of Mr Emmerson
11 is I just have two or three questions, if that.
12 Mr K, my name is McComb. I represent a number of
13 people who were charged with the assault and murder.
14 Perhaps, in fairness to you, it may be something
15 which may be raised later on, so may we go very quickly
16 to [81928], please? While we're going to that, this is
17 a statement made by Christine Smith whose name cropped
18 up during Mr Mallon's cross-examination of you. Just to
19 give you an opportunity to deal with it, it is at the
20 bottom of paragraph 14 when we come to it, [81928].
21 Can you look at the last sentence of paragraph 14?
22 Do you have that in front of you?
23 A. Yes, I do.
24 Q. I will just read it out to give you a chance to comment:
25 "The letter purported to come from the LVF", this is
74
1 the threatening letter we have heard about, "but from
2 recollection there was something in it that led the
3 police to think it was not them."
4 Now, that's something which she will no doubt be
5 asked about when she comes to give her evidence. Can
6 you throw any light on that at all yourself?
7 A. In terms of the way the letter was constructed and it
8 purported to come from the LVF, the wording used on it
9 was different than other communications made by that
10 organisation.
11 Q. May I just ask you on one other theme -- because you
12 have adopted your statement to the Inquiry and I don't
13 propose to ask you any questions arising out of that --
14 when you started, when you came into this, did you carry
15 out a fairly thorough trail going right back into the
16 investigation into the murder starting from 27th April
17 onwards?
18 A. Essentially what I looked at was the files --
19 Q. Yes, indeed?
20 A. -- in terms of reading myself in and familiarising
21 myself with all the issues in the case.
22 Q. Yes.
23 A. But I had to concentrate on the tip-off allegation.
24 Q. Of course. Perhaps allied to that is what appears in
25 the statement of Tracey Clarke, that Hanvey apparently
75
1 said to her that he was being kept up-to-date with the
2 progress of the investigation, which, of course, is
3 a very serious thing; in other words, that there was
4 some leakage or something of that nature from officers
5 who were investigating from a very early stage. I am
6 sure you are aware of that?
7 A. Yes.
8 Q. Indeed. Did that ever exercise your mind as to: could
9 this be right? Did you carry out -- was there anything
10 which you were able to unearth which might have
11 substantiated that?
12 A. In terms of Tracey Clarke's ...
13 Q. In terms of the suggestion that Mr Atkinson was being
14 kept -- was able to keep Mr Hanvey up to speed,
15 up-to-date with the progress of the investigation in
16 those very early days?
17 A. Is the focus of your question on keeping him up-to-date?
18 Q. No, the focus of my question is whether, in fact, you
19 were able to find out anything from your investigations
20 which might corroborate the suggestion that somebody was
21 keeping Mr Atkinson up-to-date, because he was obviously
22 not involved in the investigation himself.
23 A. Essentially, it was the two phone calls, but the problem
24 with that, if I may say, is that we have a phone call,
25 we don't know what goes down the line, we don't know who
76
1 is on the other side.
2 Q. I appreciate that. I must not have made myself clear to
3 you. If you can't answer, I will leave it, but there is
4 implicit -- it is clear from that part of
5 Tracey Clarke's statement that she says that she was
6 told by Allister Hanvey that he, Hanvey, was being kept
7 up to speed -- that's not quite the word -- being kept
8 informed on a regular basis by Mr Atkinson of the
9 progress which the police were making into the attack
10 that night.
11 A. We never found definitive evidence that would have
12 substantiated that.
13 MR McCOMB: Thank you very much indeed.
14 THE CHAIRMAN: 2.05 pm.
15 (1.02 pm)
16 (The luncheon adjournment)
17 (2.05 pm)
18 THE CHAIRMAN: Yes, Mr Emmerson?
19 MR EMMERSON: We don't have the witness just yet.
20 THE CHAIRMAN: Oh!
21 (The witness entered the room)
22 Questions from MR EMMERSON
23 MR EMMERSON: Witness K, my name is Emmerson and I am going
24 to ask you some questions on behalf of the Director of
25 Public Prosecutions and see if I can, please, with your
77
1 assistance, just flesh in some of the details of the
2 chronology of your involvement.
3 Sir, before I do that, can I just correct one matter
4 that I raised during the course of Mr Mallon's
5 questions? That is in respect of the date of the
6 consultation between Andrea McKee and Mr Simpson, which
7 I indicated was 3rd March 2004.
8 The position is that there are quite a number of
9 different records of that meeting. Some of them are
10 dated 2nd March and some of them are dated 3rd March.
11 Just for your note, you may recall that in the statement
12 of Witness P29 earlier, paragraph 24, she deals with the
13 discrepancy between her own notebook, in which the date
14 is recorded as 3rd March, but she is clear from the
15 chronology of the notes in her notebook, both before and
16 after, that it must have been 2nd March. So there is
17 some possible uncertainty as to whether it is the 2nd or
18 3rd March
19 THE CHAIRMAN: Well, I will put "2nd or 3rd" in my note.
20 MR EMMERSON: Thank you very much.
21 Witness K, can I just ask you this as a starting
22 point: the consultation that took place on either 2nd or
23 3rd March with Mr Simpson and Andrea McKee, I think you
24 were not present at that. Is that correct?
25 A. It doesn't appear so. I do have a note that Witness H
78
1 I think spoke to Mr Morrison on that day and Mr Morrison
2 indicated to Witness H that he would get back in touch
3 with us when he had an opportunity to assess the issues
4 with Mr Simpson and the director.
5 Q. Yes. I ask you this at this stage because you were
6 asked a number of questions about the impact that
7 Andrea McKee's perceived lies over Pendine might have
8 had on her credibility as a witness before a jury.
9 Obviously you weren't present during the period of
10 time she was being pressed by Mr Simpson about certain
11 discrepancies in the descriptions she had given, and
12 you, therefore, didn't presumably see the detail of the
13 responses that she gave?
14 A. No.
15 Q. I am going to come back to that in a little more detail,
16 if I may, in a few moments, but can I start, please, by
17 just asking you some questions to clarify the position
18 as to how the decisions came to be taken that she was to
19 be prosecuted for her part in the offence rather than
20 simply being treated as a witness? You have been asked
21 some questions about that already.
22 I think you told us this morning that the decision
23 that she should be prosecuted lay with the police, at
24 least prior to the submission of a police file to the
25 DPP.
79
1 A. That is correct.
2 Q. At that stage, it was not a decision that you would have
3 expected the DPP to take or advise upon?
4 A. I would not. That was within the hands of the police at
5 that stage.
6 Q. Yes. Thank you.
7 Can we just look, please, at your witness statement
8 at [81870], paragraphs 30 and 31? It looks as though my
9 numbering is going to be -- no, it is correct. I do
10 apologise. My numbering is obviously adrift from your
11 own.
12 THE CHAIRMAN: I think this is Prunty's statement, isn't it?
13 MR EMMERSON: Yes, so it is. We have uploaded the wrong
14 witness statement. The witness statement of this
15 witness, Witness K, please. [81780]. It is my mistake.
16 I gave the wrong page number. Paragraphs 30 and 31.
17 I do apologise.
18 You there set out at paragraph 30 the involvement of
19 Mr Kitson at a meeting on 5th December. Do you recall
20 that meeting?
21 A. On 5th December?
22 Q. Yes.
23 A. Yes.
24 Q. I wanted, if I could, just to ask you to look, please,
25 at a minute for that meeting, not, I think, your minute.
80
1 You indicated in paragraph 30 that at the meeting
2 a decision was taken as a group that Andrea McKee would
3 be dealt with for her own criminality in the same way as
4 the other suspects and that she would then be put
5 forward as a witness.
6 Do you see that in the last sentence of that
7 paragraph?
8 A. That's correct.
9 Q. By the "group", do you refer to the group of police
10 officers present?
11 A. Correct. That's between the police and the Police
12 Ombudsman.
13 Q. So at that stage, it would have been Mr McBurney,
14 I think --
15 A. Yes.
16 Q. -- and yourself, and Detective Sergeant, as he then was,
17 H?
18 A. That's correct.
19 Q. As well as Mr Mahaffey and the other investigators from
20 the Police Ombudsman?
21 A. Well, I would think that Detective Sergeant H may have
22 not been in the meeting at that moment in time. I'm not
23 sure.
24 Q. Very well. If we could just have a look, please, at
25 page [16673]. Now, first of all, if we could look
81
1 towards the top, officer's report, can you help us? Is
2 that a minute you made of this meeting?
3 A. Yes, it is.
4 Q. Very well. The list of attendees is there set out.
5 Can I just ask you, please, if we could look at
6 [16676]? This was a meeting that went on for quite
7 a considerable period of time that day, I think. Do you
8 recall that for about 45 minutes Mr Kitson was asked to
9 join you?
10 A. That's correct.
11 Q. If we can just read the entry -- perhaps if we can just
12 slightly magnify the full first paragraph:
13 "At 2.00 pm Raymond Kitson of the DPP entered the
14 meeting. Mr Mahaffey briefed Mr Kitson about the
15 evidence of Andrea McKee and, in acknowledging the
16 importance and relevance of her evidence in supporting
17 the Crown case against Atkinson and other leading
18 central conspirators, Mr Mahaffey explained to Mr Kitson
19 that it would be helpful at this point of the
20 investigation, as we make decisions on further actions
21 at this stage, to seek legal opinion on the best way in
22 which the evidence of Andrea McKee should be used if the
23 Crown case is to rely on her evidence at any subsequent
24 proceedings.
25 "Mr Kitson explained the independent and impartial
82
1 position of the DPP and indicated that the DPP would not
2 be in a position to make any direction in this case
3 until the investigation file in his entirety, which he
4 would expect would outline the evidence against each of
5 the conspirators, including Andrea McKee, who played
6 some part in the conspiracy to pervert the course of
7 justice, was presented to the DPP. Mr Kitson explained
8 that if the police, in presenting the evidence, believed
9 that, as a result of their investigation, Andrea McKee
10 was a person who was prevailed upon by others and that
11 the prosecution of Robert Atkinson and other leading
12 conspirators may have to rely in part on the evidence of
13 Andrea McKee as an important component of the Crown
14 case, the police could recommend that Andrea McKee be
15 granted immunity from prosecution.
16 "Mr Kitson explained that this decision would not be
17 taken at this stage continual and that the question of
18 immunity was one to be considered by the Director of
19 Public Prosecutions and is carried out in a reflective
20 mood when the wider public interest factors in the case
21 can be considered with the evidence presented by the
22 police. Mr Kitson explained that the DPP would not be
23 in a position to direct or advise on the position of
24 Andrea McKee at this stage of the investigation, but
25 that the DPP would make directions on completion of the
83
1 investigation and submission of a prosecution file.
2 "Mr Kitson stated that he was aware of Detective
3 Chief Superintendent McBurney's decision to record
4 Andrea McKee's evidence in a witness statement, in which
5 he understands that she has admitted to her part in the
6 conspiracy to pervert the course of justice. Mr Kitson
7 explained that the decision of whether Andrea McKee was
8 to be subsequently used as a Crown witness or was to be
9 proceeded against criminally for her part in the
10 conspiracy would be directed by the DPP on receipt of
11 the investigation file.
12 "In acknowledging DCS McBurney's decision as to how
13 he has dealt with her evidence at that stage, Mr Kitson
14 said that in his view, from listening to our discussions
15 on the case, Andrea McKee was still potentially
16 a suspect, even though in the circumstances in which
17 DCS McBurney was operating he had made the operational
18 decision to record her evidence in witness form for the
19 reasons of progressing his investigation at that time.
20 "Mr Kitson explained that irrespective of what
21 future decisions are to be taken concerning
22 Andrea McKee, the witness statements of Andrea McKee did
23 represent evidence in the hands of the police which the
24 police can use to assist them in the course of their
25 investigations and subsequent interviews of other
84
1 suspects. 2.45 pm, Mr Kitson left the meeting."
2 Now, so far as that is concerned, he had obviously
3 been brought in to give certain essential legal advice
4 as to the distribution of responsibilities at that
5 stage. Is that correct?
6 A. Yes, he was. To give a legal perspective.
7 Q. Putting it shortly, was it your understanding that up to
8 the submission of the police file, the whole question of
9 whether she was to be treated as a suspect, cautioned
10 and charged was a decision which the DPP was not -- it
11 was not within the DPP's responsibility as between the
12 two institutions to advise upon or decide upon?
13 A. I do agree with that.
14 Q. But that, after the submission of the police file, if
15 the view of the police at that stage would be that
16 a recommendation for immunity should be made, that would
17 then be considered with all the other evidence in the
18 case by the DPP's department before deciding whether to
19 accept the recommendation and how to proceed?
20 A. I agree with that.
21 Q. Thank you very much.
22 Could we just look very briefly at another minute
23 for a meeting a little later, which is [74152]? This is
24 28th February. By this point, Mr Colville Stewart has
25 taken over responsibility for the investigation, but
85
1 this is a further meeting between Mr Stewart, yourself,
2 Mr Kitson and Mr Mahaffey as well as another PONI
3 representative on 28th February 2001. Do you see that?
4 A. Yes, I do.
5 Q. Very briefly, if we could just see the continuation of
6 this strategy, at [74153], please, the penultimate
7 paragraph:
8 "Mr Kitson pointed out that at this stage this case
9 was still in the hands of the police and he would
10 therefore not be in a position to give any definitive
11 directions in the case until the investigative file had
12 been formally submitted to the DPP. He also pointed out
13 that operational decisions were a matter for the police
14 at this stage of the investigation. Mr Kitson said that
15 he would, where possible, provide guidance on any legal
16 issues arising from the evidence which is presented in
17 this case."
18 Again, that reflects your understanding of the
19 distribution of responsibilities?
20 A. Absolutely. I think that is actually my minute, isn't
21 it?
22 Q. That's a question I don't know the answer to, in fact.
23 I am sorry. You are absolutely right. If one looks at
24 the head of the document at [74152], it is your minute.
25 You are absolutely right. That reflected your
86
1 understanding?
2 A. It did.
3 Q. If we could then just look briefly at [74156], and just
4 halfway down the second paragraph, if you start halfway
5 down that paragraph with your reading:
6 "In order to strengthen the credibility of her
7 evidence before a court, it was agreed that Andrea McKee
8 should be dealt with for her part in the conspiracy.
9 Prosecution and immunity options were discussed.
10 Mr Kitson pointed out any decisions about Andrea McKee's
11 status and how she should be treated were a matter for
12 the police at this stage."
13 Pausing there for a moment, obviously, whilst
14 maintaining the position that the decision was for the
15 police to make up until the submission of a police file,
16 does it appear in that first sentence that I read out
17 just a moment ago that the police view was that
18 proceeding to prosecution of Andrea McKee would indeed
19 strengthen her credibility as a witness?
20 A. Yes, we felt that was the case coming to that
21 assessment.
22 Q. If we can just look then at the following paragraph,
23 please, and I can just pick it up halfway down:
24 "Having examined and considered these issues,
25 DCS Stewart said that he would then make decisions about
87
1 how Andrea McKee should be dealt with."
2 Do you see that?
3 A. I do.
4 Q. That's the way the matter proceeded?
5 A. That's the way the matter was, yes.
6 Q. Thank you very much.
7 Can I turn now then, please, to the later stage of
8 the process at the end of 2003 and the beginning of
9 2004, when investigations took place into the reasons
10 for Andrea McKee's failure to attend at the Magistrates'
11 Court?
12 Now, first of all, I wonder if I could ask you,
13 please, to be shown [59858]? This, I think, is your
14 journal entry dealing with the day before Andrea McKee
15 was due to testify, when you were first notified that
16 she was indicating that she couldn't come. Do you see
17 that?
18 A. Yes, indeed.
19 Q. You I think had a conversation with a particular police
20 officer, whose name is there mentioned -- I won't read
21 it out --
22 A. Yes.
23 Q. -- as liaison officer, and that you directed that police
24 officer to Andrea McKee and to speak to her in order to
25 seek further clarification. Do you see that?
88
1 A. Yes.
2 Q. So it was on your instructions, even before the court
3 hearing, that information should be provided by
4 Andrea McKee both as to what the illness was?
5 A. Yes.
6 Q. What treatment had been provided to date?
7 A. Yes.
8 Q. The details of when the child was referred to the doctor
9 and date/time last seen by the doctor?
10 A. Yes.
11 Q. Which, of course, at that stage would have been, on
12 Andrea McKee's subsequent account, the Pendine
13 attendance?
14 A. Yes.
15 Q. The details of the doctor who had been consulted and
16 made the diagnosis, and contact details for the doctor's
17 surgery as well as a prognosis? Do you see that?
18 A. I do.
19 Q. So in your mind, even before the court hearing itself,
20 even before any undertakings had been given to obtain
21 medical evidence, it was essential to investigate,
22 contact and find evidence from the doctor whom she was
23 saying had last seen the child --
24 A. Correct.
25 Q. -- which would be Pendine, as it happens?
89
1 A. As it happened.
2 Q. Yes. Now, can we look back, please, at [34061]? This
3 was the note that you were shown by Mr Underwood of the
4 hearing itself. There has been some discussion in the
5 course of evidence as to what, if any, conditions were
6 attached to the grant of the adjournment and how
7 important it was to follow up the queries that you had
8 foreshadowed.
9 You can see just after the first three lines that
10 the note reads:
11 "Adjourned to 2nd [July] 2004 for production of
12 certificate."
13 Do you see that?
14 A. I do.
15 Q. Sorry, did I say July? I meant January:
16 "Adjourned to 2nd January 2004 for production of
17 certificate."
18 Just to be absolutely clear about this, Mr K, did
19 you tell us you were at the court, but in and out of the
20 courtroom?
21 A. Yes.
22 Q. I mean, was it your understanding that the certificates
23 would have to be produced at a formal court hearing on
24 2nd January, where the matter would be listed for
25 mention?
90
1 A. I think that was my understanding, yes.
2 Q. There has been a suggestion that it might simply have
3 been a question of providing certain medical evidence to
4 the defence, but it was clear to you, at least, that
5 this was being adjourned to a listing for mention at
6 which the document would have to be produced to the
7 court?
8 A. Yes.
9 Q. Those documents would have included a record of contact
10 with the doctor that she was saying had last seen the
11 child: namely, Pendine. Correct?
12 A. Yes.
13 Q. Thank you. If we could just look, please, at [59860],
14 just to confirm that this is a correct reading of
15 the minute, this is a journal entry from you for
16 the 22nd. If we could just look, please, at the last
17 three lines:
18 "This case will be listed for mention at Craigavon
19 Magistrates' Court on 2.1.04."
20 So it was absolutely clear in your own records that
21 it was going to be listed for a formal court hearing on
22 that date?
23 A. Yes.
24 Q. And you, as the officers involved, were going to be
25 required on that date to put forward the evidence, as it
91
1 happens, of her attendance at Pendine?
2 A. Yes.
3 Q. Of course, by 1st January 2004 -- and we have been
4 through the evidence yesterday with Mr Whitehead from
5 Wrexham, the officer who was conducting the enquiries at
6 that end -- you already knew that she was claiming to
7 have visited Pendine. Correct? I can help you to this
8 extent.
9 Detective Sergeant or Inspector -- I am not quite
10 sure what time his rank changed -- H had spoken to
11 Andrea McKee on 30th December, and at that stage she had
12 told him two new pieces of information. One was that
13 the GP had visited her at a home visit on 11th December,
14 and the other was the very piece of information you had
15 been seeking from the outset: namely, where it was that
16 the child had most recently been treated, at Pendine.
17 A. Yes.
18 Q. So that information was given to Detective Sergeant H on
19 30th December, and immediately then actioned by
20 a request to Wrexham to follow it up, and, on
21 31st December, the officers at Wrexham managed to get to
22 Pendine and discovered that there was, at that stage, no
23 record of Andrea McKee's attendance there which could
24 confirm her account, and that information had then been
25 sent back to Mr Honeyford, and, indeed, to Ivor Morrison
92
1 of the DPP's department.
2 A. Yes.
3 Q. So that's the chronology. But it would follow then,
4 wouldn't it, that the very information you anticipated
5 that the police and the prosecution were required to
6 place before the court at a hearing the following day
7 could not be put before a court?
8 A. Can you clarify the question?
9 Q. Because, as you pointed out to us earlier on, the
10 information you understood you had to put before the
11 court on 2nd January was confirmatory documentary
12 evidence of the last medical appointment the child had
13 had before the attendance --
14 A. Yes.
15 Q. -- before the failed attendance on the 22nd, and that
16 was information that you couldn't -- that was
17 a requirement you could no longer comply with?
18 A. That's correct.
19 Q. Now, Mr McGrory asked you whether the decision to follow
20 up Pendine was a police decision or had somehow been
21 advised by the DPP.
22 I am going to suggest to you very clearly the
23 records show unambiguously that this was a spontaneous
24 police enquiry in response to the information that
25 Andrea McKee had provided. Is that your recollection?
93
1 A. That probably is my recollection, yes.
2 Q. You, I think, were present -- again, if I have this
3 wrong, correct me -- I believe you were present on
4 9th January when Christine Smith --
5 A. Yes.
6 Q. -- travelled to Wrexham and there was a consultation
7 there with Andrea McKee about essentially two matters.
8 The first was the inability to substantiate her visit to
9 Pendine?
10 A. Yes.
11 Q. The second was the provenance and circumstances
12 surrounding the threat letter and what, if any,
13 arrangements might satisfy her. I think there was
14 a problem, wasn't there, with her response to the
15 potential reallocation, in that she wanted to be
16 reallocated, but she didn't want to leave the area of
17 Wrexham where she was living?
18 A. That's correct.
19 Q. That presented a very real problem for you, did it not?
20 A. It did.
21 Q. Leaving that aside, do you -- again, I am coming back to
22 the issue about the explanations that she had given
23 about Pendine. Leaving aside your inability to
24 substantiate what she had said, we have seen a note of
25 that consultation and the details that were provided to
94
1 Christine Smith, in which Andrea McKee told Miss Smith
2 that the doctor who had treated the child was not, as
3 she had originally told DS H, a female, but a male
4 grey-haired doctor.
5 A. A grey-haired doctor, yes.
6 Q. This is ringing a bell? She described going into the
7 consultation room with the doctor, watching the doctor
8 palpate the child's glands --
9 A. Yes.
10 Q. -- and then was able to say that the doctor had not
11 written down, as far as she could recall, any specific
12 notes. That was her account?
13 A. Yes.
14 Q. Were you aware in your consultation with Mr Simpson on
15 2nd and 3rd March that, by that time, it had been
16 established there was no grey-haired doctor on duty at
17 all by that point over the weekend?
18 A. I think I was, yes.
19 Q. You were involved in pursuing those matters?
20 A. Yes, we were. My recollection is that we interviewed
21 upwards of six doctors, and there was three doctors
22 covering the call-out on the Friday night into the
23 Saturday morning and there was three doctors covering
24 the call-out on the Saturday night into the Sunday
25 morning.
95
1 Q. Yes.
2 A. We also made enquiries, I think, with the receptionists
3 that were on duty and then we did some telephone billing
4 research, but all of those enquiries drew a blank.
5 Q. Yes. I was going to come back to the telephone billing
6 in just a moment.
7 Were you aware, after the consultation with
8 Mr Simpson, that, when confronted with that discrepancy,
9 Andrea McKee had said that she had not, in fact, gone
10 into the doctor's cubicle, but had sat outside in the
11 waiting room?
12 A. Yes. I did become aware of that. I think, and I am
13 going deep into my recollection here.
14 Q. Yes.
15 A. That she then -- she changed the story in regards to
16 that and said that her partner had went in.
17 Q. Yes. Your memory serves you well.
18 A. Thank you.
19 Q. In terms of your expressed disappointment, you told us
20 earlier on that you were disappointed because, frankly,
21 you were not sure she was telling the truth about any of
22 this.
23 I mean, the fact that she had originally claimed to
24 have watched the doctor physically examine the child,
25 and then, when confronted with the discrepancy about the
96
1 grey-haired doctor, claimed to have remained in the
2 waiting room, is that the sort of thing that would have
3 affected your view as to whether she was lying or not?
4 A. Yes.
5 Q. Although you have told us that from your point of view
6 you believed the substantive truth of the evidence she
7 was going to give, I mean, was it fair to say you
8 thought she was lying about this by the end of it?
9 A. Lying about what?
10 Q. About the visit to Pendine?
11 A. All that I can say is that the enquiries we made to try
12 to substantiate what she had said had drew a blank.
13 Q. Yes, and a little more than that; that, when confronted
14 with the inconsistency, she had told what appeared to be
15 a further lie?
16 A. She had changed one aspect of it.
17 Q. But it is an important aspect, you would agree, whether
18 she was actually present during the examination?
19 A. I think it is, because it touches on the treatment of
20 the child.
21 Q. In assessing credibility, it is not the sort of thing
22 a mother could be mistaken about, do you think?
23 A. It was unfortunate.
24 Q. Now, do you accept that, if she were to give evidence at
25 trial, and if she were to be cross-examined about that,
97
1 that is a matter which might have damaged her
2 credibility?
3 A. I think it certainly would have -- in terms of
4 credibility, it would have attracted a legal debate in
5 the court. I think it would have been an issue that
6 certainly would have been taken up by the defence.
7 Q. Yes. Now, you mentioned a moment ago the telephone
8 billing. If we just have a brief look at [59874],
9 I think there is a reference there to proceeding with
10 enquiries in respect of land line analysis and mobile
11 phone billing still being awaited.
12 I mean, again, the decision to look for telephone
13 evidence of contact between Andrea McKee and the Pendine
14 surgery was obviously based on her account of the two
15 telephone calls that had immediately preceded her visit?
16 A. Yes.
17 Q. Again, that was an enquiry, was it, that the police
18 conducted of their own volition, rather than one that
19 was being required or advised by the DPP?
20 A. Yes.
21 Q. Can we look at -- before we do that, can we have a brief
22 look at your statement? This time I will hopefully have
23 the page reference right. [81788], paragraph 69. You
24 refer there to a meeting that you attended with
25 Mr Morrison and Mr Simpson on 12th January and to your
98
1 journal entry at [59876].
2 If we could just have a quick look at that page,
3 please. Now, you have recorded this as the 12th both on
4 the top left-hand entry and in your witness statement,
5 but I am going to suggest to you that it was, in fact,
6 a meeting that took place on the 17th.
7 The reason for that is that, first of all, the 12th
8 was not a Tuesday, but the 17th was. Secondly, if you
9 look at the top line, it seems to refer to duty on
10 17th-18th. Do you see that?
11 A. Yes, that is correct. It was the 17th.
12 Q. So both in your witness statement and in that entry
13 we --
14 A. I would say that the 12th is a typo.
15 Q. Oh, you have the original there. Have you got the
16 original document there? No. Your manuscript note?
17 A. The original.
18 Q. Sorry, I thought you were referring to your journal
19 itself.
20 A. I have got my journal here.
21 Q. Does it say the 12th or the 17th?
22 A. It's the 17th, I think, yes.
23 Q. If the course of that, if we just look at the second
24 half of the page and the paragraph beginning figure 2,
25 this is a meeting taking place, as we now know, on
99
1 17th December -- February -- I am sorry; I am making the
2 same error -- on 17th February, to assess with
3 Mr Simpson the situation as to Andrea McKee's
4 credibility as it then stood. If we just pick it up
5 four lines down:
6 "Various statements, documents and telephone
7 billings assembled by DC J were referred to in
8 discussions which focused on what Andrea McKee had
9 previously said to us on 9th January concerning bringing
10 her child to the Pendine surgery (out-of-hours on-call
11 facility) on the night of 19/12/2003. On the evidence
12 collated to date, the information gathered from these
13 matters does not appear to corroborate or substantiate
14 her account of bringing her sick child to the
15 out-of-hours doctor on 19th/20th December. It was
16 agreed that we should speak further with Andrea McKee to
17 establish if she can explain or clarify these
18 discrepancies before deciding how the prosecution should
19 move forward in light of these developments which are
20 relevant in determining her credibility as a prosecution
21 witness."
22 A. Yes.
23 Q. I mean, that was your view as well, was it, that --
24 A. Yes.
25 Q. -- these enquiries were relevant in determining her
100
1 credibility as a prosecution witness.
2 Now, obviously, in saying that, you are drawing
3 a distinction between whether you personally believed
4 that the content of what her original evidence was
5 proposed to be is true or not and whether you thought
6 that, presented before a court and a jury, she might be
7 attacked successfully on her credibility. Is that
8 right?
9 A. That certainly would have been considered, yes.
10 Q. You thought these enquiries were directly relevant to
11 her credibility, even though, in your own assessment,
12 you still thought that she was telling the truth?
13 A. Oh, I did.
14 THE CHAIRMAN: They are part of the material which has to be
15 looked at in determining whether the witness can be
16 presented as creditworthy witness; a part of it, not the
17 whole of it.
18 MR EMMERSON: Exactly so.
19 If we then look over the page at [59877], just about
20 two-thirds of the way down the sentence beginning:
21 "As a result of Andrea McKee's responses to further
22 questions which were put to her about visiting the
23 out-of-hours doctor on 19th/20th December in which she
24 remains adamant that she did attend the Pendine surgery,
25 it was decided that there was nothing further to be
101
1 gained by travelling to Wrexham to interview her at this
2 stage."
3 Do you see that?
4 A. Yes, I do.
5 Q. Just to be clear there, she had obviously been --
6 following the earlier entry, she had obviously been
7 spoken to, to see whether or not she was -- is this
8 right?
9 A. Is this after the interview with Mr Simpson?
10 Q. Yes, exactly. This is the day following. Perhaps you
11 didn't get a chance to look at the full page?
12 A. Yes.
13 Q. This is the 18th. So we have looked at the meeting on
14 the 17th in which a view was taken that these enquiries
15 were relevant to her credibility and that she might be
16 spoken to, and then, on the 18th, it appears that she
17 has been spoken to and remained adamant, and that, as
18 a result, there was no point going to visit her to
19 discuss it any further. Is that ...?
20 A. I think it's done in the context that she had been seen
21 by senior counsel advising on the case.
22 Q. No, she had not at this point.
23 A. Oh, she had not?
24 Q. She had been seen by junior counsel on 9th January. You
25 had met with senior counsel on 17th February. This is
102
1 an entry for 18th February and the consultation with
2 Mr Simpson did not take place until either 2nd or
3 3rd March.
4 A. Oh, right. Okay. The issue at this point, from my
5 point of view, is that we have placed the evidence
6 before the DPP --
7 Q. Yes.
8 A. -- and we are trying to work through what were
9 anomalies. The issue as to whether the prosecution can
10 depend upon her evidence, I have got to say, strictly
11 speaking, laid that point with the director of
12 prosecutions. That decision, at that moment in time,
13 has shifted. I don't know if that helps, but ...
14 Q. I don't think there is any dispute about that issue.
15 A. Yes.
16 Q. The question I was asking --
17 THE CHAIRMAN: I think the witness was going to add
18 something. You said:
19 "I don't know if that helps, but ..."
20 You were going to say something more, I think.
21 A. The decision at this point is with the DPP.
22 MR EMMERSON: Yes.
23 A. I think at that point we have done as much as we can at
24 that stage. I think the thinking was, at that time,
25 that it was going to be referred to senior counsel. So
103
1 at that stage, it is very much within the DPP process at
2 that stage.
3 Q. Yes. Would you agree that it appears just from this
4 entry that further questions have been put to
5 Andrea McKee as a result of Andrea McKee's responses to
6 further questions which were put to her. Do you see
7 that?
8 A. Yes.
9 Q. And as a result of --
10 A. That follows the consultation carried out by
11 Christine Smith. Is that ...?
12 Q. I am asking for your help, if I can. You have had this
13 discussion the day before with Mr Simpson on the 17th,
14 and then it appears that there is a live issue here with
15 whether it is worth going back to interview her again on
16 this issue -- do you see -- because what you have
17 recorded is, as a result of her responses, it was
18 decided there was nothing further to be gained by going
19 back to Wrexham to speak to her.
20 A. Yes, but that -- at that stage -- and I can't see the
21 date because this thing covers it.
22 Q. It is the 18th.
23 A. So that follows Christine Smith's interview. Is that
24 correct?
25 Q. Christine Smith's was on 9th January, then there was
104
1 a meeting between yourself and Mr Simpson and others on
2 17th February -- we have just discussed the date
3 error -- and this is the entry dated the following day.
4 Maybe you can't help us as to whether or not there
5 was a live issue in your mind at that stage as to
6 whether --
7 A. No, there really wasn't, because, at that point, we have
8 to manage the witness, because we have issues around
9 witness protection and the threat that we had to manage,
10 but the issues round, I think, at that point, with
11 regards to her being presented as a witness for the
12 Crown, is with the DPP.
13 Q. I absolutely understand that, but something has taken
14 place here, because if you look at the last three lines:
15 "ADI H briefed Mr Morrison of the DPP regarding his
16 telephone discussion with Andrea McKee ..."
17 Do you see that?
18 A. Yes, I do.
19 Q. I think, as we saw just a moment ago, Mr Morrison was in
20 the meeting the day before the 17th. So there has
21 obviously been a phone conversation between H and McKee
22 between the 17th --
23 A. I think --
24 Q. I am so sorry -- and your entry for the 18th, has there
25 not?
105
1 A. Yes. I think that it would require DS H to assist in
2 that. What I will say in help of that is that DS H, at
3 that stage, is the liaison officer in relation to the
4 witness protection issues.
5 Q. Thank you. Finally this. If we could just have a brief
6 look, please, at [59879], I think we see on the 20th you
7 were briefed by H concerning enquiries that had been
8 made with Andrea McKee's husband, and it was established
9 that he could provide no information that could assist
10 in corroborating her account.
11 A. Yes.
12 MR EMMERSON: Thank you very much.
13 THE CHAIRMAN: Can you remind me? I think we have heard
14 evidence already, have we not -- perhaps you can help
15 me, Mr Emmerson -- that the Pendine records were not
16 actually looked at by the police officer who went to
17 make the enquiry but were looked at by someone at the
18 surgery.
19 MR EMMERSON: Correct. That was in the evidence of
20 Mr Whitehead. He said he had been to the surgery. The
21 records were kept in a notebook, but he had relied on
22 the staff to read the notebook and provide him with the
23 information.
24 THE CHAIRMAN: Now, there was evidence available that
25 a child had been seen by a doctor on the 9th and was
106
1 seen again --
2 MR EMMERSON: On the 11th.
3 THE CHAIRMAN: -- on the 11th.
4 MR EMMERSON: That was the home visit.
5 THE CHAIRMAN: That's right, yes, and was seen again on the
6 22nd.
7 MR EMMERSON: Correct.
8 THE CHAIRMAN: On each occasion the doctor had considered
9 the child was not well. I am not seeking to go into how
10 seriously unwell the child was. So it would have been
11 possible -- the utility is another matter -- for the
12 prosecution to provide that evidence to the magistrate,
13 but also to say she said she was at the Pendine surgery
14 on the 21st. Enquiries have shown that not to be
15 substantiated.
16 MR EMMERSON: Yes. We can look into, with future witnesses,
17 what information was provided to the court and to the
18 defence, but you have seen, I think, from Mr Morrison's
19 summary of events that information about the medical
20 evidence was supplied to the court and the magistrate's
21 response was that, if what was being suggested was
22 correct, then the court had been seriously misled on the
23 22nd.
24 So if what you are asking me at this stage is
25 precisely what information of the other medical records
107
1 that were provided was supplied to whom when, that is
2 obviously an issue that we can investigate.
3 THE CHAIRMAN: But you put an earlier question that the
4 police were not able to provide any information about
5 the last time the child was seen by the doctor. More
6 accurately, they could not provide any information to
7 substantiate what Mrs McKee said was the last time the
8 child had been seen by the doctor. Isn't that right?
9 MR EMMERSON: Well --
10 THE CHAIRMAN: In other words, the Pendine visit.
11 MR EMMERSON: That was --
12 THE CHAIRMAN: Her assertion of the last time prior to the
13 22nd when the child had been seen by a doctor.
14 MR EMMERSON: Obviously, if it was a lie, then that was
15 something which no doubt the court would want to be
16 informed about and investigate.
17 THE CHAIRMAN: Certainly.
18 MR EMMERSON: Obviously this officer, as others, would have
19 started from the proposition that the witness was likely
20 to be telling the truth about the visit and, therefore,
21 the agenda, as I think K has confirmed, and indeed
22 I think Mr Whitehead confirmed, began as a task to
23 substantiate the truth of what she was saying.
24 THE CHAIRMAN: To seek confirmation.
25 MR EMMERSON: It was only when it became apparent it could
108
1 not be substantiated that questions started to be asked
2 about whether she was lying.
3 THE CHAIRMAN: I follow.
4 REV. BARONESS KATHLEEN RICHARDSON: The lie was as to which
5 doctor she had seen, not necessarily about the illness
6 of the child?
7 MR EMMERSON: The lie was as to whether she had visited the
8 out-of-hours surgery. Obviously we can have
9 a discussion about this in much greater detail at
10 another juncture, but the lie was, if it be a lie:
11 "I took my child to an out-of-hours surgery over
12 that weekend and this is the doctor that I saw. This is
13 what he looked like."
14 When confronted with the inconsistency to make up
15 another lie and say, "I didn't go into the room.
16 I stayed outside in the waiting room."
17 Now, those are judgment calls that a lie of that
18 kind and a willingness to make up lies on the hoof in
19 response to being confronted with an inconsistency may
20 have on the credibility of a witness. Those are matters
21 of judgment
22 REV. BARONESS KATHLEEN RICHARDSON: I understand that. In
23 fact, what she had said for her reason for not attending
24 court, that the child was ill, may have been
25 substantiated by her visit to the doctor on the 22nd?
109
1 MR EMMERSON: Yes, although the nature and extent of the
2 illness as represented to the court was different from
3 the illness as it was recorded on the 22nd.
4 REV. BARONESS KATHLEEN RICHARDSON: Yes.
5 THE CHAIRMAN: Mr K, if I can call you that, if you had been
6 going yourself to the surgery and were wanting to know
7 whether a patient had attended, would you have been
8 content for the person you saw to look through the note
9 or would you have wanted to look at them yourself,
10 bearing in mind the importance?
11 A. Yes, I would have wanted to look at them myself.
12 THE CHAIRMAN: So that you could personally be satisfied as
13 to whether or not there had been a visit --
14 A. Yes.
15 THE CHAIRMAN: -- and that the note had been thoroughly
16 looked at?
17 A. Yes.
18 THE CHAIRMAN: Thank you.
19 Yes, Mr Berry?
20 Questions from MR BERRY
21 MR BERRY: Thank you, Mr Chairman. I am Greg Berry.
22 I appear for Andrea McKee and I have some questions for
23 you.
24 Can I just put things in context to this extent?
25 You have been discussing, and I think it is accepted,
110
1 that her child was ill during the month of December.
2 Isn't that right?
3 A. Yes.
4 Q. You are also aware that she had previously attended
5 committal proceedings --
6 A. Yes.
7 Q. -- at Craigavon Court House?
8 A. That is correct.
9 Q. And I think physically was at court prepared to give
10 evidence?
11 A. Absolutely.
12 Q. Then I think there was an issue about the resident
13 magistrate who was assigned to deal with the case.
14 A. There was.
15 Q. I think -- and correct me if I am wrong about this --
16 the impression you have given, and if I can confirm this
17 or otherwise, is that, even after the events of December
18 and January, your impression was that Andrea McKee was
19 still willing to give evidence in this case?
20 A. Yes.
21 Q. Now, the proceedings which were ongoing at that stage
22 were obviously in the Magistrates' Court. They were
23 committal proceedings. Isn't that right?
24 A. That's correct.
25 Q. Do you have an understanding as to the role of the
111
1 magistrate at that time in committal proceedings; in
2 other words, what function the magistrate had?
3 A. My understanding is that the magistrate has to determine
4 at the committal whether there is prima facie evidence
5 of a crime which can then enable the case to be referred
6 up to the Crown Court.
7 Q. Yes. I just want to tease that out a wee bit with you.
8 Insofar as prima facie evidence, it is your
9 understanding, is it, that the magistrate would take the
10 Crown case at its height, at its reasonable height?
11 A. I would agree with that, yes.
12 Q. Prima facie as a standard is not a particularly high
13 standard. Isn't that right?
14 A. I think I should leave that really to you people.
15 Q. I think you are maybe right. You would not disagree
16 with that statement, I take it, that it is not
17 a particularly high threshold to cross?
18 A. No.
19 Q. In terms of assessing credibility of a witness, do you
20 agree with the proposition that that was no function of
21 an examining magistrate at committal?
22 THE CHAIRMAN: I think that's really a matter of law, isn't
23 it?
24 A. That's a difficult question.
25 THE CHAIRMAN: I am not sure you are right.
112
1 A. It depends upon whether you would get an abuse of
2 process argument within the committal itself.
3 Now, you are going into legal issues which I really
4 should leave to people more qualified than this -- than
5 me to answer these issues, but as I understand it, in
6 relation to where a case would rely -- this is my
7 understanding -- a case would rely on the evidence of
8 a critical evidence, credibility may be an issue that
9 could become an issue to be explored at a committal, but
10 I stand to be corrected.
11 Q. It could be explored, for example, through the witness
12 giving evidence --
13 A. Yes.
14 Q. -- and being cross-examined --
15 A. Yes.
16 Q. -- and that sort of thing. Isn't that right?
17 A. Yes.
18 Q. If there is no evidence, as it were, at the end of the
19 committal based on that witness' evidence, then the
20 magistrate would not obviously return for trial to the
21 Crown Court?
22 A. Yes.
23 Q. Now, insofar as Ms McKee is concerned, if one accepts
24 for the moment, for the purposes of your evidence, that
25 she was untruthful about Pendine, would you agree with
113
1 me that that was a collateral matter in terms of the
2 case which related to her credibility, but didn't impact
3 on the account of the conspiracy which she gave to you
4 relating to the defendants?
5 A. I would agree with that.
6 Q. As a collateral matter, it was a matter of weight in
7 terms of assessing her credibility. Do you agree with
8 that?
9 A. Could you just clarify that?
10 Q. Yes. It is not something that, for instance, she turned
11 round -- I will take an example -- and said, "I made all
12 that up about Mr Atkinson"?
13 A. Yes.
14 Q. It is not a direct matter of that nature. It is
15 a collateral matter which, if it is untrue, the visit to
16 Pendine, it relates to assessing her credibility as
17 a witness. Would you agree with that?
18 A. I would agree with that, yes.
19 Q. Would you agree that in your experience -- I assume you
20 have attended criminal trials, given evidence and
21 matters of that nature --
22 A. Yes, I have.
23 Q. -- that a jury, for instance, would normally assess
24 credibility --
25 A. Yes.
114
1 Q. -- and is a way of dealing with a witness who has
2 a potential issue with their credibility, is a way of
3 dealing with that to make disclosure of that to the
4 court and also to make disclosure of that to the
5 defence --
6 A. To the defence.
7 Q. -- representatives? Is that a way of dealing with that?
8 A. Yes, I agree with that.
9 Q. Now, did it occur to you as a way forward in this case
10 that Andrea McKee gave evidence at committal and then
11 disclosure took place in what I would call the normal
12 way at the Crown Court to the defendants?
13 A. What I would have liked to see was the case go through
14 committal and for that to be tested, and certainly the
15 credibility issue would certainly have been tested in
16 the higher court.
17 Q. Yes. Could I postulate maybe another scenario to you,
18 that if the decision about Andrea McKee had not been
19 taken at committal stage, one never knows, someone might
20 just have pleaded guilty at the Crown Court? In other
21 words, if there had been a return to the Crown Court,
22 one of the defendants might have pleaded guilty. That
23 could have happened?
24 A. It could have happened. I don't know what you expect me
25 to say to that.
115
1 Q. No, but it is clearly a possibility. When you are in
2 the dock and put on your plea, do you plead guilty or
3 not guilty?
4 A. Yes.
5 Q. Stranger things have happened, Mr K. Isn't that right?
6 A. Yes.
7 Q. Do I detect from what you are saying to the Inquiry that
8 your preference would have been, despite the Pendine
9 issue, for this matter to have gone to committal and for
10 a return to have taken place; in other words, that
11 Andrea McKee was called as a witness, warts and all, at
12 committal proceedings?
13 A. The Pendine issue was very unfortunate.
14 Q. Yes.
15 A. My view would have been that we should have put the
16 matter before the court.
17 Q. Yes. Can I take it then, following logically from that,
18 that you didn't necessarily agree with the assessment of
19 the DPP that the case should be, to put it in the
20 vernacular, dropped at that stage?
21 A. We had had discussions about the case. We did put
22 forward our view that we should look at the case in the
23 round, and it is warts and all.
24 Q. Yes.
25 A. And, I mean, another option for us which we asked to be
116
1 considered, and was considered, was whether we could run
2 the case even without Andrea.
3 Q. Yes.
4 A. In my view, the case should have been put before the
5 court and allow the court to decide.
6 Q. So, therefore, is the answer to the question I asked you
7 about the decision of the DPP at that stage that you
8 didn't necessarily agree with that decision? You would
9 have preferred the matter could have gone to the
10 committal stage?
11 A. I would have preferred it to go into the court to be
12 tested in the court.
13 MR BERRY: Thank you very much, Mr K.
14 Questions from MR O'CONNOR
15 MR O'CONNOR: I have just two brief collateral matters. If
16 I could take you to page [26878], please. This is sort
17 of unrelated to the previous evidence you have given,
18 but there are just two minor matters.
19 This is a note kept by the Ombudsman's office. It
20 is a type of chronology or almost like action sheets.
21 The senior investigating officer for the Ombudsman's
22 office was Chris Mahaffey. Isn't that right?
23 A. That's correct.
24 Q. You have given some evidence that you worked with him in
25 the investigation?
117
1 A. Yes.
2 Q. Now, this note you will be aware of at the bottom. It's
3 12th December 2000. Chris Mahaffey reports, if I can
4 just read it out -- it is just six lines:
5 "DCI K expressed concern as to the way in which the
6 original murder investigation team, particularly
7 DCS McBurney and DI Michael Irwin had handled one of the
8 two alibi witnesses and a second apparent witness to the
9 assault upon Robert Hamill.
10 "In short, DCI K questioned why both had been
11 treated as witnesses, when material was available to
12 indicate possible criminal involvement in the assault
13 and, although unrelated, the subsequent provision of
14 false alibi evidence."
15 Then if I can bring up page [81781], paragraph 36 of
16 your statement to the Inquiry, there you record that
17 you take total exception to that.
18 A. Yes, I do.
19 Q. In your statement, you say:
20 "I take exception to the record on this chronology.
21 It does not reflect totally and accurately what was
22 discussed. I did say to Mr Mahaffey that if he had
23 concerns about how DCS McBurney and DI Irwin were
24 thinking and approaching issues at that time, then it
25 was a matter for him as the supervising officer.
118
1 I believe my report of the meeting reflects more
2 accurately what was said. I did not express concern
3 about the conduct of the investigation and the conduct
4 of DCS McBurney and DI Irwin at any stage."
5 A. That is correct.
6 Q. Can you then explain or have you any idea how SIO
7 Chris Mahaffey of the Ombudsman's office got it
8 completely wrong in his note?
9 A. The meeting of 12th December 2000, we had previously
10 briefed Mr Mahaffey in relation to a statement recorded
11 from Witness G and we had been making enquiries. That
12 touched upon the issues concerning Timothy Jameson.
13 Mr McBurney wanted that information as soon as we got it
14 passed to Mr Mahaffey. A meeting was arranged on
15 the 12th to discuss that, and, during the course of that
16 meeting, Mr Mahaffey asked Mr McBurney a number of
17 questions touching upon the taking of the alibi
18 statement in relation to Andrea McKee and touching upon
19 the handling of the information concerning
20 Timothy Jameson. During the course of that, Mr McBurney
21 did leave the room.
22 Mr Mahaffey then asked me about what my view was,
23 because his questions to Mr McBurney before he left the
24 room were clearly focused on the conduct of the
25 investigation. I indicated to Mr Mahaffey that any
119
1 issues concerning the conduct of the investigation were
2 not within my remit. I did and would agree that the
3 questions he was asking did require some explanation,
4 but, at that moment, all they required was explanation.
5 For me, they were not concerns.
6 Q. Yes.
7 A. Now, Mr Mahaffey went and spoke to Mr Wood and, as
8 I understand it, had a meeting the following morning
9 with the chief constable. I was not aware of that, but
10 the issue to indicate that I had concerns is not
11 correct.
12 Q. Yes.
13 A. There were issues that he was raising and I could see
14 with the Timothy Jameson information that some issues
15 required explaining. For me, they don't become concerns
16 until we understand what the explanation is. So the
17 concerns that are expressed there are not my concerns.
18 Q. Do you agree with me that that note gives the impression
19 that you had in some way spoken to Chris Mahaffey
20 and said, "Look, I am concerned about Irwin and
21 McBurney's investigations here".
22 That's the impression the note gives, isn't it? It
23 is entirely --
24 A. I will say again that, at that meeting, Mr Mahaffey is
25 speaking to Mr McBurney and he is starting to ask
120
1 questions about why things were done --
2 Q. Yes.
3 A. -- and how things were conducted in relation to the
4 receipt of the information concerning Timothy Jameson
5 and how it was handled.
6 It was clear that Mr Mahaffey appears to be asking
7 Mr McBurney -- he is now touching upon the conduct of
8 the previous investigation, and, as a consequence,
9 Mr McBurney decided to leave at that point. That was
10 not within my remit.
11 Q. The question I asked you was in relation just simply to
12 the note, the impression the note gives as a result of
13 that.
14 A. That is a note of Mr Mahaffey.
15 Q. Yes.
16 A. What I am saying is I did not express concerns.
17 THE CHAIRMAN: In short, you thought there were matters
18 which called for an explanation, but you would not have
19 decided whether or not they were a matter of concern
20 unless and until you had been able to consider any
21 explanation?
22 A. Absolutely, Mr Chairman.
23 THE CHAIRMAN: Until then, you would suspend judgment?
24 A. Absolutely, Mr Chairman.
25 THE CHAIRMAN: You say Mr McBurney left.
121
1 A. Yes.
2 THE CHAIRMAN: He walked out, did he?
3 A. Yes, he left the room.
4 THE CHAIRMAN: Yes.
5 MR O'CONNOR: Just to be clear, DI Irwin stayed in the room?
6 Was DI Irwin in the room?
7 A. No.
8 Q. Finally, can I take you to [81786], please, paragraph 61
9 of your statement, an unrelated matter? You were
10 revisiting, according to paragraph 61, the forensic
11 evidence in the original murder investigation, and in
12 particular DNA profiles.
13 In relation to that, you were looking at DNA
14 profiles found on Robert Hamill's clothing. You tried
15 to obtain DNA samples from D. He refused to cooperate.
16 Is that right?
17 A. That is correct.
18 Q. That's in or around -- the best I can put it in
19 timescale in your statement, around 2002, some time in
20 2002 roughly?
21 A. I mean, I probably don't have time to look through here.
22 That would have happened -- we returned to the murder
23 investigation and it would be around the time when
24 Mr Stewart retired and the Ombudsman had given me
25 a certificate of competence in relation to the
122
1 investigation and was happy to approve my appointment as
2 the SIO on the Hamill murder.
3 As a result of that, I moved into a forensic review
4 of the murder and I was trying to sort this particular
5 issue out.
6 Q. Yes. The point I am making is that it is as late as
7 2002. If we go down the body of the paragraph, you say:
8 "We gave D and his solicitor", who was
9 Rosemary Nelson, "assurances but we could not get his
10 cooperation."
11 My point is this --
12 A. No, his solicitor was not Rosemary Nelson.
13 Q. I beg your pardon. Who was his solicitor at the time
14 then?
15 A. It was a solicitor -- oh, I think the solicitor was
16 based in Lurgan. I remember talking to the solicitor,
17 but I can't recall.
18 Q. I think I know who it is now. Mr Moriarty. Is that
19 right?
20 The point I am making is, even as late as 2002 or
21 thereabouts, you are still having problems in
22 investigating the murder because crucial witnesses,
23 somebody as central as Witness D, still will not
24 cooperate in giving DNA samples. Isn't that right?
25 A. That is correct. I was surprised at not getting that
123
1 cooperation.
2 MR O'CONNOR: Thank you.
3 THE CHAIRMAN: Yes, Mr Adair?
4 Questions from MR ADAIR
5 MR ADAIR: There are just a few matters I want to cover with
6 you. They jump from subject to subject, so if you bear
7 with me.
8 Just dealing with the last point you were being
9 asked about, this meeting with Mr Mahaffey and
10 Mr McBurney and yourself, I think it is pretty clear to
11 all of us what happened, but would you agree with me
12 some questions are asked to elicit information? Isn't
13 that right?
14 A. That's correct.
15 Q. Some questions are asked in such a way that it is quite
16 clear that there is criticism in the question. Isn't
17 that right?
18 A. That is correct.
19 Q. What sort of questions were being asked by Mr Mahaffey
20 to Mr McBurney? Was it the former or the latter?
21 A. I think it was the latter.
22 Q. Are you putting it diplomatically when you say he left
23 the room?
24 A. No. He basically -- I can't just recall exactly what
25 happened, but he was talking with Chris Mahaffey around
124
1 the issue, but at one point he did just say that he
2 needed to go to deal with something else.
3 Q. All right. He didn't come back?
4 A. No.
5 Q. Now, I want just to go back to the start of your
6 involvement briefly. You came in in June of 2000?
7 A. That is correct.
8 Q. Mr McBurney was already the senior investigating officer
9 at that stage and you became deputy?
10 A. Yes.
11 Q. Now, between June 2000 and December 2000, you worked,
12 can we take it, closely with Mr McBurney into this
13 tip-off allegation?
14 A. Yes.
15 Q. Now, Mr Underwood has already said to you that it is
16 important that the Panel get an impression from people
17 as to what they think about some of the issues that this
18 Panel has to decide.
19 What was your impression between June 2000 and
20 December 2000 as to whether Mr McBurney was determined
21 to nail Mr Atkinson? What was your impression about
22 that?
23 A. I was under no doubt at all that Mr McBurney was
24 absolutely committed to getting Atkinson. I have no
25 doubt at all that's what he wanted to do from the
125
1 beginning, and, when I was brought into the inquiry into
2 2000, he still had that same level of commitment.
3 Q. Now, you also told us that when you joined the inquiry
4 in June 2000, that Mr McBurney explained to you what his
5 strategy had been from the start. I am not going to go
6 through it, but, essentially, it was waiting in the long
7 grass for one of the conspirators to break. Is that
8 paraphrasing what you were saying?
9 A. Yes.
10 Q. You have also told us that you had no problem with his
11 thoughts on that and strategy.
12 A. No.
13 Q. We know that you carried out a number of enquiries which
14 I think Mr McGrory has dealt with that Mr McBurney did
15 not. Isn't that right?
16 A. That is correct.
17 Q. Taking that into account, and taking everything you know
18 about this entire inquiry into account, can you tell the
19 Inquiry what your impression is as to whether
20 Mr McBurney was determined from the very start before
21 June 2000 to nail Robert Atkinson?
22 A. I think he was always determined to nail
23 Robert Atkinson.
24 Q. What do you say -- I mean, the Panel have to deal with
25 the fact that you did a number of matters which weren't
126
1 done by Mr McBurney. Have you any comment about that
2 or ...?
3 A. It's difficult to put yourself in any person's
4 circumstances, because I cannot understand the issues
5 that Mr McBurney would have been dealing with at that
6 time, but as regards the beginning of the investigation,
7 this was a difficult one, because he simply had a bit of
8 hearsay in relation to this tip-off.
9 At that point in time, the McKee issue had not come
10 into it. He had very complex issues to deal with around
11 the murder, but he looked at the billing. The search
12 would have been very important in terms of seeing
13 whether there was evidence that could have corroborated
14 that in terms of the destruction of forensic evidence,
15 and the issues then kick in, how does he progress this?
16 Now, it is difficult at that point. He wasn't to
17 know, of course, that the McKees were then at some stage
18 later in the year to come forward and be offered as
19 an alibi. At the moment that we reached that point
20 I have to say that if I was in those circumstances, that
21 would have intrigued me as to why this alibi was being
22 offered by this individual. You --
23 Q. Just to stop you there, would you have done something
24 more proactive at that stage? What do you say?
25 A. The point is, I think, at that minute, because that
127
1 appears to be -- it would have appeared to me to be very
2 intriguing, you are immediately starting to strategise
3 around that interview.
4 THE CHAIRMAN: This is the alibi interview?
5 A. The alibi interview, Mr Chairman.
6 You would have had to send an officer to do it. You
7 would have given that officer directions in relation to
8 how to proceed with that. If it had been me, I would
9 have had to say to the officer, "Put the person on
10 notice of the declaration", and bring attention to this.
11 MR ADAIR: This is Andrea McKee?
12 A. Yes, absolutely.
13 Q. If, at that point, they don't want to make a statement,
14 to then withdraw at that moment. If Andrea McKee wanted
15 to make a statement, to take the statement, because the
16 other factor that we have to think about is that
17 Andrea McKee also was instrumental in bringing important
18 information into the hands of the police. So I would
19 have been considering Article 2 issues. The officer who
20 would have done that, I would have expected to do what
21 had been directed.
22 The issue then is, whenever that statement gets
23 back, what happens from that moment? That's where I can
24 no longer comment
25 Q. Now, the final thing I want to ask you about is you have
128
1 already dealt with a number of matters both in the memo
2 that Mr Wood produced --
3 A. Yes.
4 Q. -- which you disagree with entirely. Is that right?
5 A. Yes.
6 Q. And my learned friend has also dealt with another matter
7 which, on the face of it, you disagree with the
8 information.
9 I just want to mention briefly to you some other
10 matters that Mr Wood -- not all -- touched upon during
11 the course of his evidence to see whether you agree or
12 disagree with it.
13 For example, he said that he wanted this type of
14 surveillance done because you and Stewart had no
15 strategy. Basically, you hadn't carried out any
16 lifestyle surveillance, you had not analysed the
17 telephone billing, you didn't know the movements of the
18 family to get an opportunity to put in the surveillance.
19 Now, can I have your comment about that evidence
20 given by Mr Wood, please?
21 A. That is not correct. I had certain --
22 Q. I don't want you to say what it was.
23 A. -- supporting elements in place. I was utilising at
24 times, whenever we got the facility to use surveillance,
25 physical surveillance and I was building a picture, and
129
1 that was being developed alongside and behind the overt
2 investigation, and if that overt investigation, as
3 I explained this morning, had run into the ground, it
4 would then have moved -- the emphasis would have moved
5 at that point to putting this in place.
6 Q. Was Mr Wood aware of all this?
7 A. Chris Mahaffey was briefed on it on 5th December, but
8 I never spoke to Mr Wood and neither did he ever speak
9 to me until 6th March.
10 Q. Another thing he said was -- and I want you to listen to
11 it; this is what he said in his evidence -- that it was
12 generally accepted by members of the RUC, which I am
13 assuming in particular means you, at the time that there
14 had been a compromise by a way of a tip-off to Atkinson.
15 Is there any truth in that?
16 A. No.
17 Q. Have you any idea where he gets that from?
18 A. I don't know where he gets that from.
19 Q. He also said that when he arrived over here from his
20 myriad of posts that Mr McGrory took him through that he
21 had in England, that surveillance to you people was
22 a unique experience. What do you say about that?
23 A. I disagree with that. In terms of a number of major
24 crime issues we could have made a bid and we could have
25 had the resources for it. In terms of surveillance,
130
1 conventional surveillance, we had access to that.
2 Q. Sorry?
3 A. We had access to that to utilise.
4 Q. I think it is right to say, however, that the majority
5 of usage of intrusive surveillance and covert type of
6 surveillance was for counter-terrorism.
7 A. That's correct.
8 Q. He also said it was indicated -- and I think the effect
9 of it was he was not quite sure who said it, but
10 somebody said it involved in the investigation, that the
11 use of intrusive surveillance was like using
12 a "sledgehammer to crack a nut".
13 Did you or anybody in your presence ever say that or
14 any other words to convey the same meaning?
15 A. I never heard that, ever.
16 Q. Have you any idea where he gets that from?
17 A. I have no idea.
18 Q. He also said in his evidence that essentially you had
19 said to -- although the impression is that it is to him,
20 but it would appear probably to Mr Mahaffey, that if you
21 were seen to be vigorously investigating Mr Atkinson,
22 this could cause trouble within one side of the
23 community. Was that ever said to him?
24 A. No.
25 Q. Have you any idea what he is talking about there? Was
131
1 anything said that could convey that meaning to him?
2 A. I don't understand -- I don't even recognise that.
3 Q. We have dealt with the previous -- the concerns about
4 the previous investigation.
5 Now, he made another remark that he took the view
6 that one of the concerns that the investigating theme
7 was the effect of deployment on the local police force.
8 He said there was a cultural problem here, that there
9 could be a backlash from the local police force.
10 Is there any truth in that?
11 A. No. That is not correct. The issue that we were
12 putting forward again was around this issue of failure
13 and we did not want to fail on this.
14 What we were trying to say to him was that
15 Robert Atkinson was a very small minority number of
16 local officers -- and I am only talking maybe three or
17 four -- that perhaps had a misguided perception, right,
18 that Robbie Atkinson was being persecuted. You have to
19 see that in the context that the officers that were
20 friendly with Robert Atkinson -- and I'm only talking
21 about a very small handful of people -- they were seeing
22 that from the perspective of the investigation of the
23 Land Rover crew.
24 The issue was that people didn't know the story
25 behind this of what Robert Atkinson had done allegedly
132
1 in tipping off a suspect after the Hamill incident, and
2 what we wanted to do was to really ensure -- what we
3 wanted to do was to get this case successfully done, so
4 in order that, you know, some of these sort of -- I call
5 them sort of misguided loyalties, misguided perceptions,
6 because there was a couple of people that did see him as
7 a victim of injustice.
8 Q. When you say "a couple of people", are we talking
9 police?
10 A. Yes, two or three people who were very friendly with
11 him.
12 What we wanted to do was to ensure that these sort
13 of officers knew that Robert Atkinson, in our view, was
14 a corrupt officer, and that is what we wanted to do.
15 The issue is that, had we not been successful, the issue
16 really is that Atkinson then is entitled to all the
17 protections that this society gives him, and that is
18 that he is innocent until proven guilty.
19 What we really wanted to do -- and we knew the
20 difficulties round other aspects of the case. If we had
21 got good evidence from a very good and successful,
22 secure and covert deployment, that may well have been
23 sufficient to prosecute him as a corrupt officer.
24 Q. Okay. The final thing I want to ask you about is, if
25 you put up [81780], please -- and just before I ask you
133
1 about this, I think the Chair had asked you about
2 a police investigation into the possibility of
3 a policeman having tipped off Atkinson.
4 Do you remember being asked about that?
5 A. Yes.
6 Q. Did you, in fact, yourself carry out that investigation?
7 A. No, I didn't.
8 Q. Was it did somebody under your --
9 A. No, it was an independent detective officer --
10 Q. An independent --
11 A. Yes, from outside the investigation.
12 Q. If you highlight paragraph 31 --
13 THE CHAIRMAN: I am not clear, Mr Adair. I rather thought
14 the witness was saying the investigation related to the
15 one officer who went to see Mr --
16 MR ADAIR: That's right. That's the one I am talking about.
17 The entirety of the investigation concerning
18 a possible tip-off by a member of the police force to
19 Atkinson centred round one officer who was interviewed
20 by an independent team --
21 A. That's right.
22 Q. -- who found no evidence to substantiate any suggestion
23 that that officer had tipped off Atkinson. Is that
24 right?
25 A. That's correct.
134
1 Q. Sir, does that answer your --
2 THE CHAIRMAN: Yes, it does. Yes.
3 MR ADAIR: At paragraph 31, I just want to ask you --
4 I think this is a different paragraph. Could I see the
5 whole page again, please? I am sorry. My paragraph 31
6 is different. Let me just ask you this question. In
7 a statement I have from you, you say that you have no
8 doubt, and I quote:
9 "... that the intrusive surveillance was compromised
10 by no other reason than Atkinson being paranoid about
11 surveillance being conducted on him following his
12 release."
13 Was that your opinion and does it remain your
14 opinion?
15 A. It does.
16 MR ADAIR: Yes. Thank you.
17 Further questions from MR UNDERWOOD
18 MR UNDERWOOD: Just a couple of matters. Can I take you
19 back to page [59858]? This is your journal entry -- you
20 were asked about it on behalf of the DPP -- of your
21 reaction when you learned on the Sunday of the proposal
22 that Andrea McKee was not going to turn up on the
23 following day.
24 A. Yes.
25 Q. What you did there, we see, was to speak to DC Murphy --
135
1 we are calling her that -- who was the liaison officer,
2 and you directed her to speak to Andrea McKee to seek
3 some clarification on a number of points. We see what
4 they are. We have been through them. It is the
5 diagnosis, the treatment to date, etc?
6 A. Yes.
7 Q. Now, did DC Murphy report back to you with those
8 materials?
9 A. Yes.
10 Q. Did you pass those on to anybody?
11 A. Well, she would have spoken to me and DC Murphy was at
12 court I think the following morning, because I wanted
13 her to go to the court to brief, I think, Christine ...
14 Q. Christine Smith?
15 A. I think Christine Smith did that particular appearance.
16 Q. At that stage, of course, Andrea McKee was not saying,
17 was she, that she had been to Pendine over that weekend?
18 A. That's correct.
19 Q. So you had no reason whatever, had you, to believe that
20 the magistrate was told anything about Pendine at the
21 weekend?
22 A. No.
23 Q. In fact, if we look at page [34061], have you any reason
24 to believe that the magistrate was either told or asked
25 for anything more than was contained in this note of
136
1 Mr Morrison's?
2 A. No.
3 Q. There is one other document I would like you to look at,
4 if I may. That's page [59860]. Again, you were shown
5 this before?
6 THE CHAIRMAN: This is your journal, is it?
7 A. Yes, it is.
8 MR UNDERWOOD: Again, it is your journal entry you were
9 shown on behalf of the DPP for the 22nd, that Monday.
10 In the second line, at the end of it, you say:
11 "Briefed by ADI H re: discussions and proceedings
12 which have occurred in this case prior to my arrival.
13 "D/C J instructed to obtain medical report from GP
14 re: ill health and ongoing medical treatment of
15 Andrea McKee's child."
16 Nobody ever did that, did they?
17 A. I would have to look back. I thought that was done.
18 Q. Take it from me there is no medical report from the GP.
19 Can you explain that?
20 A. I would have to look back at the records.
21 Q. Take it from me there isn't one.
22 A. All right. Okay.
23 Q. There is no medical report about the ill-health or
24 ongoing treatment.
25 Can I suggest this: that that was simply overtaken
137
1 because, on the 30th, Pendine came up and everybody
2 focused on Pendine?
3 A. That's a possibility.
4 MR UNDERWOOD: Thank you very much. Those are the only
5 questions I have, sir.
6 THE CHAIRMAN: Thank you.
7 Questions from THE PANEL
8 THE CHAIRMAN: When were saying just now you would have to
9 look at your record, was that to see whether you could
10 find an explanation?
11 A. Yes, I would have to review that, Mr Chairman. I am
12 very happy to do that for you, but it could be, as
13 counsel has suggested, that events moved on very
14 rapidly.
15 THE CHAIRMAN: If you could just look at your record and you
16 learn anything, if you can let Mr Underwood know, he can
17 have you recalled.
18 A. Thank you.
19 MR UNDERWOOD: Thank you very much for coming.
20 (The witness withdrew)
21 THE CHAIRMAN: 3.45 pm.
22 (3.30 pm)
23 (A short break)
24 (3.45 pm)
25 MR UNDERWOOD: Mr H, please.
138
1 WITNESS H (sworn)
2 Questions from MR UNDERWOOD
3 MR UNDERWOOD: Afternoon.
4 A. Hello.
5 Q. My name is Underwood. I am Counsel to the Inquiry.
6 Sorry to have kept you waiting. I have a few questions
7 for you and it may well be there are some supplementals
8 from others.
9 Can I ask you first to look at a witness statement?
10 We will see it on screen at [81882]. That runs for
11 thirteen pages. If I could just ask you to keep your
12 eye on the screen while we run through the
13 thirteen pages briefly, is that your witness statement?
14 A. Yes.
15 Q. Is it true?
16 A. Yes.
17 Q. Can I ask you to look at page [59860]? This is
18 a journal entry of a Mr K -- do you know who I mean by
19 that --
20 A. Yes.
21 Q. -- for 22nd December 2003? You can see that he says:
22 "On duty. Duties at CMC re: committal proceedings"
23 I think that is, "Atkinson [and others]. Briefed by
24 ADI H re: discussions and proceedings which have
25 occurred in this case prior to my arrival - D/C J
139
1 instructed to obtain medical report from GP re:
2 ill-health and ongoing medical treatment of
3 Andrea McKee's child - this case will be listed for
4 mention at CMC on 2.1.04. Returned to officer."
5 Do we take it from that that you were at the
6 Magistrates' Court on the 22nd?
7 A. Yes, I would assume so, yes.
8 Q. Could I also take it from that answer that you have no
9 independent recollection of that?
10 A. No, I don't actually. I am sorry.
11 Q. Just looking at that note:
12 "Briefed by [you] re discussions and proceedings
13 which have occurred in this case prior to my arrival.
14 DC J instructed to obtain medical report from GP re:
15 ill-health and ongoing medical treatment of
16 Andrea McKee's child."
17 A. Yes.
18 Q. We know that what got faxed through to you were two
19 medical -- two statements, rather, from a GP, one on
20 24th December and one on 30th December. Do you recall
21 those?
22 A. Yes, I recall getting stuff faxed through from Wrexham.
23 Q. As far as you were concerned, was that satisfactory?
24 Did that deal with what was being asked for there?
25 A. Well, without seeing the actual product you're talking
140
1 about, I couldn't be definitive on that answer, but most
2 likely, yes.
3 Q. I am not -- what I don't want to get you to do is look
4 at them to say whether now you think they were
5 satisfactory. What I am wanting is whether at the time
6 when you got them, in late December of 2003, you thought
7 that what had to have been done in relation to the GP
8 was done?
9 A. Well, I can't actually say that, because I can't recall
10 what those statements said.
11 Q. Right. Can we go back to your witness statement at
12 paragraph 32? That's at page [81892]. This is about
13 a committal on 27th October 2003. Andrea McKee attended
14 to give evidence at that hearing. Have you
15 a recollection of that now?
16 A. Yes.
17 Q. How did she strike you after that abortive hearing? Did
18 she strike you as willing to come back again or --
19 A. Oh, yes.
20 Q. What was your task in relation to Andrea McKee at that
21 stage?
22 A. Specifically in relation to ...?
23 Q. Were you the liaison officer or were you just one of the
24 team dealing with her?
25 A. At that position in October 2003?
141
1 Q. Uh-huh.
2 A. I wouldn't put myself down as a liaison officer with
3 Andrea. I think maybe DC Murphy was taking on that role
4 at that time.
5 Q. Right. If we go further down in paragraph 33 of your
6 statement, you discuss in the first sentence the news
7 that she telephoned to advise that her son was ill and
8 could not travel. You were not surprised, therefore,
9 when she did not turn up on the 22nd.
10 You say there:
11 "I had met Andrea on at least two occasions before
12 that date and believed that she was willing to give
13 evidence."
14 Is this fair, that enquiries were made about that?
15 You got the statements through from the GP. Then
16 a question arose about attendance at an out-of-hours
17 clinic called Pendine.
18 A. Yes. I don't think the question regarding Pendine
19 really arose until perhaps after Christmas, into
20 January.
21 Q. You were present, I think, at further discussions -- I
22 will not go into the details of this -- with DPP
23 representatives and so forth about what should happen in
24 the light of her account of this out-of-hours surgery.
25 A. Not all of the discussions. I was present at some.
142
1 Q. Some. What impression were you left with in early 2004
2 of Andrea McKee in terms of her willingness to attend
3 and her credibility?
4 A. I believed she was a willing witness. In terms of her
5 credibility she had told lies obviously on one occasion
6 at the very start, but had since told the truth.
7 MR UNDERWOOD: Thank you very much. Those are the only
8 questions I have for you.
9 MR WOLFE: I have no questions.
10 Questions from MR McGRORY
11 MR McGRORY: I have very small number of questions.
12 Mr H, my name is McGrory and I represent the family
13 of Robert Hamill.
14 I only want to raise one issue with you and that's
15 the extent to which you had contact with a witness whom
16 we know as P42. Does that mean anything to you?
17 A. Yes.
18 Q. I am wondering now, sir, can I name this witness now?
19 MR UNDERWOOD: No.
20 MR McGRORY: He is still redacted. Okay. You had cause in
21 2001, I think, to visit his father-in-law. Isn't that
22 correct?
23 A. Yes.
24 Q. The relevance of P42 is that he was an eye witness back
25 in 1997 who typed out an account with his father-in-law
143
1 who was a policeman, and I don't need to name him for
2 fear I might also reveal the identity of P42. Do you
3 remember this context?
4 A. Well, I am not sure he typed the account out in the
5 presence of a police officer. There was certainly
6 an account typed.
7 Q. Right. Okay. But in any event, an account was typed by
8 P42 and was at least handed to his father-in-law, who
9 was a police officer, who transmitted that account to
10 the police in 1997?
11 A. I believe that is correct.
12 Q. On your evidence you have given the Inquiry, you did not
13 become involved in the investigation as to the identity
14 of the author of that document until some time later,
15 until 2001 or thereabouts?
16 A. Yes.
17 Q. By all accounts it didn't take you very long to crack
18 that particular issue as to who had written the
19 document?
20 A. Well, it took us a bit of time to track him, but we got
21 him, yes.
22 Q. But you traced it back to the father-in-law, who was at
23 one time the policeman?
24 A. Sorry. Chased what back to the father?
25 Q. You traced the document back to P42's father-in-law.
144
1 Isn't that right?
2 A. No, we chased the document back to P42.
3 Q. Yes, but perhaps via the father-in-law. Is that
4 a better way to put it?
5 A. Yes, we had called with him, yes.
6 Q. Now, the father-in-law was interviewed -- I think I can
7 name the father-in-law with Mr Underwood's permission?
8 THE CHAIRMAN: Wait a moment. We have granted -- well,
9 clearly to name the father-in-law will make it very easy
10 to identify P42, won't it?
11 MR UNDERWOOD: I thought, in fact, the father-in-law's name
12 has already come out. I may be wrong about that. I can
13 see if it has not already come out, it may, of course,
14 have that consequence.
15 MR McGRORY: I can work around it, sir.
16 THE CHAIRMAN: Yes.
17 SIR JOHN EVANS: As long as he knows who you are talking
18 about.
19 MR McGRORY: Do you know who I am talking about?
20 A. Yes.
21 Q. The father-in-law was interviewed by the Inquiry in the
22 context of these proceedings and told the Inquiry that
23 he was visited in 1997 by police in the context of the
24 handing in of the typed document. Do you understand me?
25 What he told the Inquiry was that he could not
145
1 remember the name -- the surname of the officer who
2 visited him, but then he named your first name,
3 suggesting that it was you who had visited him in 1997.
4 So I simply want to ask you, is there any possibility
5 that you had contact with him in 1997?
6 A. No, I was not involved in this investigation in 1997.
7 MR McGRORY: Thank you. It is a specific query that has
8 come to light. Thank you for clarifying that.
9 Questions from MR MALLON
10 MR MALLON: Were you present -- sorry, my name is Mallon.
11 I appear on behalf of the Atkinsons.
12 Were you present in court in relation to the
13 adjournment that was sought because of the condition of
14 Andrea McKee's child?
15 A. That's on 22nd December you are referring to?
16 Q. Yes.
17 A. I believe I was, but I can't be definitive because
18 I have no specific recollection of being there, but
19 I believe I was, yes.
20 Q. As a result of what transpired between both the
21 prosecution and the defence, the magistrate indicated
22 that he wished information to be sought. Isn't that
23 correct?
24 A. I believe that to be the case, yes.
25 Q. That related to the condition of Andrea McKee's child?
146
1 A. Yes.
2 Q. The reason for the adjournment was that she had
3 indicated to the police that she needed an adjournment
4 because of the serious illness of her child?
5 A. Yes.
6 Q. When you investigated the child's illness, did you find
7 it to be serious?
8 A. I can't really comment on whether the --
9 Q. Well, did you consider mumps to be serious?
10 A. Well, I believe for a child it can be very serious, yes.
11 Q. Would you consider, if the testes were swollen, it was
12 very serious?
13 A. Again, I can't really comment on medical matters.
14 Q. You see, were you present in court when the fitting of
15 the child was mentioned?
16 A. I can't recall that. I am sorry.
17 Q. You can't recall that, but a child going into fits would
18 be considered very serious?
19 A. Yes.
20 Q. On that basis, an adjournment was granted, provided that
21 the condition of the child was sustained, and you were
22 put on enquiry because of that, were you not, by the
23 magistrate?
24 A. Well, we did do enquiries into the health of the child.
25 Q. Now, after you had read and you had considered all the
147
1 evidence in respect of Pendine, were you quite happy in
2 your own mind that Andrea McKee had lied to you?
3 A. No, I wouldn't say that, sir, no.
4 Q. When did you become satisfied that that was all lies, or
5 did you ever become satisfied that that was lies?
6 A. I am not sure I ever became satisfied that it was all
7 lies.
8 Q. Okay. So in spite of all the police investigation, you
9 still reserve the position that Andrea McKee was telling
10 you the truth?
11 A. No. What you are saying is that everything that she had
12 said was lies. What I am saying is that --
13 Q. In relation to Pendine, attending there, the
14 descriptions of the doctors, the times of the calls, all
15 of that?
16 A. Sir, there were occasions that did -- when she did tell
17 us she contacted them and we were able to confirm she
18 did contact them on those occasions.
19 Q. That is the doctor's surgery. This is the out-of-hours
20 incident for the weekend of 19th, 20th, 21st and 22nd,
21 that area. That was never substantiated by any police
22 officer. Were you aware of that?
23 A. Which specific aspect are you asking me about? Are you
24 asking about all of her contacts with the surgery?
25 Q. No, I am talking about the Pendine episode, when she
148
1 said, the night before that she was due to come, she
2 went to the Pendine out-of-hours hospital unit and
3 brought her child with her. The child was allegedly
4 examined by a doctor. She described the doctors. She
5 indicated, as a result of that, the child was ill, and
6 when the police went to try to confirm that, they
7 couldn't. Did you know that?
8 A. I don't think it is just as plain as that.
9 Q. What do you think is the case?
10 A. Well, my recollection of that case is simply as I have
11 said. There was contact with her doctor. There had
12 been contact -- and I can't be specific about the dates,
13 because I'd need to refresh my memory on that.
14 Q. Would you like to do that?
15 A. Yes, I would, yes.
16 Q. Do you have a note of it?
17 A. No.
18 Q. You don't have a note. Well, I am not going to go
19 through it and I am not going to hold you to it, because
20 evidence has been given.
21 THE CHAIRMAN: Ask a question if you have a question. Don't
22 make a statement, please.
23 MR MALLON: The question I have to put to you is this: if
24 Andrea McKee lied about that before the committal
25 proceedings started and the magistrate required her to
149
1 come to court and to give that version of events again
2 and to be subject to cross-examination on the basis that
3 it never occurred, do you think she would have faced the
4 charge of perjury?
5 A. I couldn't answer that.
6 Q. Do you know anything about Pendine?
7 A. About the out-of-hours surgery?
8 Q. Yes.
9 A. Yes.
10 Q. Do you know, did they check the record and find no
11 calls?
12 A. Well, again, I can't -- I will have to refresh my
13 memory. My recollection of that is she did make calls
14 to a doctor's surgery. Whether that was Pendine or
15 another one ...
16 Q. It wasn't. It was her own doctor's surgery.
17 Now, I have to suggest to you that it was apparent
18 to other police officers, if not to yourself, that she
19 was a bold and bare-faced liar?
20 THE CHAIRMAN: Well, it is not for this witness to comment
21 on what other police officers thought about it.
22 MR MALLON: Were you aware of Mr Simpson QC's assessment of
23 her?
24 A. No.
25 Q. You weren't aware of that?
150
1 A. No.
2 Q. So you are not aware of any assessment on her
3 credibility from counsel involved in giving advice as to
4 the DPP?
5 A. Well, I did travel across to Wrexham with counsel and
6 Mr Morrison and another police officer and we spoke to
7 Andrea McKee.
8 Q. That was the first occasion?
9 A. Yes.
10 Q. You weren't present when she was interviewed by
11 Mr Simpson?
12 A. No.
13 Q. Now, in relation to the adjournment that you heard
14 granted, were you present in court when the committal
15 proceedings were concluded?
16 A. Which date? Is that in January or February?
17 Q. I think it's February.
18 A. I may have been. I can't recall.
19 Q. Do you remember, or do you know, on what basis they were
20 concluded?
21 A. No.
22 MR MALLON: Thank you.
23 Questions from MR EMMERSON
24 MR EMMERSON: My name is Emmerson. I just want to ask you
25 one or two questions on behalf of the Director of Public
151
1 Prosecutions.
2 Can I ask, please, that you be shown [59897], first
3 of all? This, I think, is a record of your own duty
4 notes. Is that correct?
5 A. Yes.
6 Q. You said in answer to questions from Mr Underwood that
7 you thought that the Pendine issue first arose after
8 Christmas. If I could just ask that you be shown
9 [59898], which is your entry for 30th December, do you
10 see at the bottom of the page there:
11 "Spoke to D/C Kevin Whitehead, Wrexham CID,
12 reference calling at Dr [blank's], surgery."
13 Over the page, please, [59899]:
14 "... to establish further details of treatment for
15 Andrea McKee child. He later rang back and said that
16 was all they had on records as per statement of evidence
17 from Dr [blank]. I later contacted Andrea McKee who
18 dated that Dr [blank] had called at her home on 11th
19 evening and prescribed antibiotics and nose drops and
20 also on 19/12/03 she had telephoned the Pendine Park
21 out-of-hours clinic at night because of the child's high
22 temperature and she was told to give him Calpol and to
23 phone back in half an hour. She did this and as time
24 child's temperature hadn't went down and that both her
25 and her partner went to Pendine Park where they saw
152
1 a lady doctor - Wrexham CID to call with Dr [blank] and
2 Pendine out-of-hours clinic."
3 Do you see that?
4 A. Yes.
5 Q. Now, this is the first record we have of Andrea McKee
6 giving an account of having been to the Pendine
7 out-of-hours clinic on the 19th, or, let's put it this
8 way, on the weekend before she was due to attend the
9 Magistrates' Court. It would appear from this that this
10 is an account she gave for the first time to you.
11 A. I think she has given that to Mr Whitehead.
12 Q. If you look and read that passage over to yourself again
13 that I have just read, you say:
14 "I later contacted Andrea McKee who stated ..."
15 A. Sorry. Yes, yes.
16 Q. She stated something about the visit to her home on the
17 11th and also apparently stated to you?
18 A. Oh, yes, yes.
19 Q. So it would appear that it was to you this account was
20 first given. Would it also follow from your note in the
21 last three lines that you immediately actioned that by
22 passing it back to Mr Whitehead to follow up through
23 investigation with Pendine?
24 A. Yes.
25 Q. Thank you. Just one other matter, if I may. Could you
153
1 be shown [81894]? This is your own statement. I want
2 to ask you, if I may, please, about the first part of
3 paragraph 37. You are answering questions, or this is
4 a summary of the questions you answered, in relation to
5 the decision to abandon the prosecution of Mr Atkinson
6 and others after doubts had emerged about the
7 credibility of Andrea McKee following the consultation
8 which had taken place with Mr Simpson.
9 You say:
10 "I have been asked whether I was surprised at the
11 DPP decision to offer no evidence against
12 Reserve Constable Atkinson and the others. I was not
13 necessarily surprised by it, taking into account the
14 fact that Andrea McKee told lies in 1997, then decided
15 to tell the truth in 2000. There were already issues
16 around her credibility, but then there was also the fact
17 that we could not prove that she had been to a doctor on
18 call-out when she said she had been on
19 19th December 2003. I do not feel that the issue about
20 Andrea McKee's credibility was overplayed."
21 Were you kept informed as the process unfolded of
22 evaluation of her credibility about Pendine?
23 A. Not necessarily. You are talking about meetings with
24 the DPP?
25 Q. Yes.
154
1 A. No, those would have been between senior police and
2 directing officers.
3 Q. I think we have seen that Witness K, for example,
4 attended a meeting on 17th February with Mr Simpson to
5 discuss these matters and I think both of you were
6 certainly present with Christine Smith, the junior
7 barrister, on 9th January?
8 A. Yes.
9 Q. Just to be clear, when you say:
10 "I do not feel that the issue about Andrea McKee's
11 credibility was overplayed."
12 What do you mean by that?
13 A. Well, it was an issue that would obviously be tested
14 very vigorously at a court.
15 Q. Therefore ...?
16 A. Therefore, those were considerations that the DPP or
17 PPS, whatever they were at the time, would have to
18 consider.
19 Q. Why was it that you didn't think they had been
20 overplayed? What was it about the situation, as you
21 understood it to be, that made you think that these
22 decisions were not overplayed, if I can use your words?
23 A. Well, she had told lies in 1997. She tells the truth
24 again in 2000 and it would obviously be made out she has
25 been telling lies again.
155
1 Q. Because of the Pendine issue?
2 A. Yes.
3 THE CHAIRMAN: Had you ever heard her give her account of
4 what was the truth or said to be the truth about her
5 dealings with Mr Atkinson?
6 A. There was a statement recorded by K, I believe.
7 THE CHAIRMAN: No. Had you ever heard her give her account
8 of that?
9 A. Yes, I think I was present when that statement was
10 taken.
11 THE CHAIRMAN: You were present?
12 A. Yes.
13 MR EMMERSON: Yes. Thank you.
14 Questions from MR DALY
15 MR DALY: Just briefly, H, if we could look at [33975],
16 please, this is a file note of Mr Morrison. Sorry,
17 I appear on behalf of Mrs McKee.
18 Just the second last sentence:
19 "Before leaving, D/Inspector H telephoned Andrea who
20 agreed to check her timetable for the next week so that
21 she would be in a position to indicate later in the day
22 when she could consult."
23 Do you recall if there was any difficulty
24 telephoning her or making contact with her?
25 A. No, there was no difficulty.
156
1 Q. In fact, had you been dealing with her over a period of
2 time?
3 A. I had been, along with other officers, yes.
4 Q. Is it fair to say that, whenever you telephoned her, she
5 would answer?
6 A. Yes.
7 Q. When you tried to get in contact with her, she would
8 reply?
9 A. There was no issue.
10 Q. No issue at all. This is a woman who had been dealt
11 with in court, had pleaded guilty, had been dealt with,
12 had been sentenced some time in the past?
13 A. Yes.
14 Q. There was absolutely nothing in it for this lady for
15 herself, no selfish motive, if you like, to be
16 facilitatory towards you or to be cooperative towards
17 you, no selfish motive?
18 A. Nothing that I can think of.
19 Q. Is it fair to say this was a woman who, of her own
20 volition, was volunteering her cooperation unselfishly?
21 A. Yes.
22 MR DALY: Thank you.
23 MR ADAIR: No questions, sir.
24 MR UNDERWOOD: I have no questions arising out of that.
25 Thank you.
157
1 THE CHAIRMAN: Thank you.
2 MR UNDERWOOD: Thank you very much.
3 (The witness withdrew)
4 MR UNDERWOOD: Sir, I am conscious that we have yet half
5 an hour of Mr McBurney's tape. I am also conscious that
6 there are some further documents to be distributed
7 amongst the legal representatives for a witness
8 tomorrow, which will give them some more homework. It
9 may well be it would be easier on everybody to fit the
10 remaining half an hour of Mr McBurney in tomorrow.
11 THE CHAIRMAN: Very well. We will do that. 10 o'clock
12 tomorrow. What do you suggest?
13 MR UNDERWOOD: We only have one witness. That's Mr Irwin.
14 I apprehend he will be comfortably done within the day.
15 10 o'clock by all means, but I would have 10.30 would be
16 comfortable.
17 THE CHAIRMAN: 10.30 am then.
18 (4.15 pm)
19 (The hearing adjourned until 10.30 tomorrow morning)
20
21 --ooOoo--
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24
25
158
1 I N D E X
2
3
WITNESS K (sworn) ................................ 1
4 Questions from MR UNDERWOOD ............... 1
Questions from MR WOLFE ................... 39
5 Questions from MR McGRORY ................. 45
Questions from MR MALLON .................. 61
6 Questions from MR McCOMB .................. 74
Questions from MR EMMERSON ................ 77
7 Questions from MR BERRY ................... 110
Questions from MR O'CONNOR ................ 117
8 Questions from MR ADAIR ................... 124
Further questions from MR UNDERWOOD ....... 135
9 Questions from THE PANEL .................. 138
10 WITNESS H (sworn) ................................ 139
Questions from MR UNDERWOOD ............... 139
11 Questions from MR McGRORY ................. 143
Questions from MR MALLON .................. 146
12 Questions from MR EMMERSON ................ 151
Questions from MR DALY .................... 156
13
14
15
16
17
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19
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21
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23
24
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159
