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Hearing: 10th September 2009, day 61
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PUBLIC INQUIRY INTO THE DEATH OF
ROBERT HAMILL
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Held at:
Interpoint
20-24 York Street
Belfast
on Thursday, 10th September 2009
commencing at 10.00 am
Day 61
1 Thursday, 10th September 2009
2 (10.00 am)
3 MR McGRORY: Sir, perhaps while the witness is being
4 produced, you asked me yesterday, sir, about any
5 reference in the McBurney interview to the belief that
6 Michael McKee was in Cork.
7 THE CHAIRMAN: Yes.
8 MR McGRORY: Sir, it is on page 176 of the May 2006
9 interview in which McBurney says:
10 "Michael, we are on the move. Let's get on the ball
11 when he is informed of the split up of the two.
12 However, when I came back the next time he explained to
13 me", and he means this witness I believe, "'Look,' he
14 says, 'McKee is in xxxx living with his girlfriend and
15 their two children."
16 That's page 176
17 THE CHAIRMAN: When was this?
18 MR McGRORY: This is in the May 2006 interview, sir.
19 THE CHAIRMAN: No, no. When is it he was told this?
20 MR McGRORY: He is not 100% clear, but there is another
21 document I would like you to look at, sir --
22 THE CHAIRMAN: Yes.
23 MR McGRORY: -- which is at page [02395].
24 THE CHAIRMAN: Can we bring that up, please?
25 MR McGRORY: This is a document dated 19th October. It is
1
1 Mr Irwin's note, 19th October 1999:
2 "Michael and Andrea McKee who resided at" an address
3 at Craigavon, "have separated. Michael McKee left
4 Andrea for another woman and has moved to ..."
5 I believe that is xxxxx:
6 "Andrea has returned to Wales. DCS McBurney
7 informed of this development and enquiries being made to
8 confirm this and their present location. Further
9 details submitted in due course and at an appropriate
10 time regarding coroner's inquest", etc.
11 In view of the contents of that document, I would
12 ask your permission to ask either now, or at
13 an appropriate time, a number of supplementary
14 questions.
15 SIR JOHN EVANS: May I? I thought the issue was we all knew
16 he was in xxxxxxxx. I thought you were indicating yesterday
17 you knew the location of him in Cork.
18 MR McGRORY: No. The issue was this witness said one of the
19 reasons why he they could not pursue Michael McKee was
20 because they did not know where he was.
21 SIR JOHN EVANS: But they knew he was in xxxxxxx.
22 MR McGRORY: He did not accept that.
23 SIR JOHN EVANS: Oh, I see. No doubt you will put that to
24 him.
25 THE CHAIRMAN: I think you had better, Mr McGrory, put your
2
1 questions now.
2 MR PHILIP MICHAEL IRWIN (cont.)
3 Further questions from MR McGRORY
4 MR McGRORY: You listened to all that, Inspector Irwin?
5 A. I did indeed, sir.
6 Q. I was suggesting to you yesterday there was a lack of
7 urgency, to say the least, about pursuing Michael and
8 Andrea McKee in October 1999 when the information about
9 their separation came into the system?
10 A. Yes, sir.
11 Q. One of the reasons you put forward for that not being
12 done immediately was, in respect of Michael McKee, you
13 had no idea where he was.
14 A. That's correct, sir, yes.
15 Q. Now, this document, which is dated 19th October 1999, do
16 you agree that you are the author of that document?
17 A. I am indeed, sir, yes.
18 Q. That document suggests that, in fact, you were aware, in
19 October 1999, that he was at least in xxxxxxx.
20 A. He had moved to xxxxxxxx, yes, sir. I would accept that.
21 Q. I suggested to you yesterday that some enquiries could
22 have been made of, say, the garda, for example, as to
23 his precise whereabouts in xxxxxxxx
24 A. That would be correct, sir, yes.
25 Q. Indeed, this document would suggest that this
3
1 development and enquiries were being made to confirm
2 this and their present location.
3 A. Uh-huh. Yes.
4 Q. Do you see that?
5 A. I do indeed, sir, yes.
6 Q. So it would have been a simple matter to have made those
7 enquiries.
8 A. Again, sir, what I would say to you is that I went to
9 Mr McBurney and obviously I gave him the information.
10 The enquiries to be made, from Mr McBurney's point of
11 view, was through the family, if I was picking up
12 anything through the Clarke family of exactly where he
13 was. It wasn't that I was to send correspondence
14 through Crime Branch down through the Garda Siochana to
15 establish where Mr Michael McKee was. If Mr McBurney
16 had wanted to do that, he have could have done that.
17 I would agree, again, sir, in principle, that
18 Michael McKee could be asked by a Garda Siochana officer
19 about his previous statement, but I am saying that
20 I believe it was Mr McBurney's belief or his intentions
21 that he would want to confront those individuals,
22 because, like anything, sir, when you have a personal
23 relationship or where you have a personal contact with
24 individuals, you can make assessments better than where
25 you send somebody else to do a job for you.
4
1 Again, that was Mr McBurney's decision, sir. So
2 I would accept he was in xxxxx yes.
3 Q. Indeed, you only really needed the guards if you wanted
4 to interview him in an investigative way. Isn't that
5 correct? He could have been spoken to?
6 A. Again, sir, it was Mr McBurney's directions on these
7 here. I believe Mr McBurney wanted to speak to the
8 individuals personally and make his own assessment on
9 that, and it was his decision, and, as a result of that,
10 I put in the message sheet and in due course then we did
11 speak to Michael McKee personally and we did speak to
12 Andrea personally.
13 Q. You were given to direction to take any such steps?
14 A. No, sir. To make an enquiry with the Garda Siochana,
15 you would have to put a report, a formal request, up
16 through crime branch. That would actually have to go
17 through Mr McBurney through Crime Branch to the
18 Garda Siochana.
19 Q. So as far as you are aware, no further effort was made
20 to make any contact, certainly as far as you are aware,
21 with Michael McKee?
22 A. There was no contact, as far as I was aware, made
23 through the Gardai, unless Mr McBurney made and put
24 a report up through Crime Branch. His directions to me
25 was, "Keep in contact with the family, link in with the
5
1 coroner's inquest and keep the present position under
2 review".
3 Q. In other words, do nothing?
4 A. Sorry, sir?
5 Q. In other words, do nothing?
6 A. Absolutely not, sir. As soon as the inquest was not
7 held, then we moved on the two individuals.
8 MR McGRORY: Indeed.
9 THE CHAIRMAN: Yes, Mrs Dinsmore?
10 Questions from MS DINSMORE
11 MS DINSMORE: Good morning, Mr Irwin.
12 A. Good morning.
13 Q. My name is Margaret Ann Dinsmore. I appear on behalf of
14 both Eleanor and Robert Atkinson.
15 A. Yes, ma'am.
16 Q. Now, I have very little for you, because you had a very
17 long day yesterday, and nearly all matters were largely
18 covered, but there is one aspect of your statement which
19 is very helpful by way of background to which this
20 Inquiry is considering these matters.
21 I wonder, would staff be good enough to put up
22 page [81424]?
23 Therein, Mr Irwin, you have outlined the
24 difficulties that the whole sad tragedy of Drumcree in
25 Northern Ireland created within the population in
6
1 Portadown.
2 A. That's correct, ma'am.
3 Q. If we could just highlight the third and fourth -- if we
4 can just enlarge that paragraph. The sectarianism was
5 highlighted. This parade occurred each July. These are
6 the words I want you to expand on:
7 "... had a serious and long-lasting impact both
8 within each community and with police liaison within
9 these communities."
10 Am I correct in understanding that policemen who
11 served without fear or favour at that Drumcree suffered
12 personally in relation to their perception within the
13 community?
14 A. They did indeed, ma'am, yes.
15 Q. Indeed, wasn't my client, Mr Atkinson, one of those
16 policemen -- perhaps you cannot answer this -- who
17 indeed served at Drumcree and, in fact, lived in
18 Mahon Road for a full month?
19 A. I am not aware of that, ma'am.
20 Q. You can take it from me that is unchallenged.
21 Would it surprise you then -- I expect it would not
22 surprise you at all, if that was the case -- that he
23 would be a figure which was not popular within either
24 community, whether it be Loyalist or Nationalist within
25 Portadown?
7
1 A. I would accept that, ma'am.
2 Q. Indeed, having operated in that vicinity, isn't it
3 correct to say that policemen often suffered at the
4 hands of Loyalists as well as Nationalists?
5 A. They did indeed, ma'am, yes.
6 Q. Are you aware that Mr Atkinson, for example, had
7 an attack on his home by the Loyalist community?
8 A. In what year, ma'am, was that?
9 Q. I am not in a position to tell you the exact year.
10 A. I can't recall.
11 Q. You can't remember?
12 A. No, ma'am.
13 Q. In any event, in relation to the general proposition, it
14 would not take you by any surprise that, if you had
15 served at Drumcree, as I have outlined, that certainly
16 the Loyalist community would not be supportive of that?
17 A. I would agree with that, ma'am, yes.
18 Q. Thank you.
19 If I then can move on to your dealings with
20 Andrea McKee, and we don't need to do that in any
21 detail. I am interested in quite a different
22 perspective of it from what all was outlined with you
23 yesterday, but if we look at what occurred yesterday, it
24 is not in dispute that when Tracey Clarke was
25 interviewed on the 8th, she knew not of the matters
8
1 which ultimately gave rise to concern, that, when
2 Detective McAteer went out with the questionnaire, she
3 did not identity or outline any of the matters which
4 came out on the evening of 9th/10th May?
5 A. That's correct, ma'am, yes.
6 Q. Tell me: how well did you know Detective McCaw --
7 Reserve Constable McCaw?
8 A. I think the first time I had met him was on the 8th or
9 9th, whatever night I met Andrea McKee.
10 Q. Right. So you had no previous dealings with him?
11 A. Not to the best of my knowledge.
12 Q. But you learned that evening, or that day, that he was
13 a member of the Tae Kwon Do club, Mr McCaw, and
14 frequented it?
15 A. I possibly did, yes, ma'am.
16 Q. Now, he was the carrier of information to Mr McBurney
17 and yourselves. He was the carrier of that information
18 from Andrea McKee. Isn't that right?
19 A. Yes, ma'am.
20 Q. He was a serving police officer?
21 A. Yes, ma'am.
22 Q. In relation to the meeting that Andrea McKee had that
23 evening with yourself and Mr McAteer, Reserve
24 Constable McCaw was also present?
25 A. He was indeed, ma'am, yes.
9
1 Q. But he was not present in his capacity as a policeman?
2 Isn't that right?
3 A. Probably not, ma'am. He was off duty at the time.
4 Q. He was off duty?
5 A. Yes.
6 Q. Didn't he bring Andrea McKee along to this, near the
7 cemetery Seagoe rendezvous point?
8 A. Yes.
9 Q. Was he really there as a friend, associate, supportive
10 person to Andrea McKee?
11 A. No. I would simply say that he was a tool to get the
12 arrangement -- the meeting arranged.
13 Q. Yes, but -- now, let me just explore that with you.
14 A tool. Was his capacity as a tool facilitated by
15 a relationship which he had with Andrea McKee? Like,
16 you couldn't have sent the duty sergeant at the desk to
17 go out and say, "Hi! Go and collect Andrea McKee and
18 bring her down to near the cemetery at Seagoe". Oh no,
19 that wouldn't have worked. Isn't that right?
20 A. No, it was the most practical way of meeting
21 Andrea McKee.
22 Q. Explain to me why it was the most practical way?
23 A. Because Mr McCaw had come in with the information from
24 Andrea McKee.
25 Q. And he knew her?
10
1 A. And he knew her.
2 Q. He said, "I know her". Did you get the impression that
3 she would have trusted him then?
4 A. I really -- I think Mr McAteer dealt with Mr McCaw on
5 this situation. It was really a situation of, "Let's
6 get talking to this individual ourselves. Let's go and
7 meet her".
8 The most practical way was through the person that
9 had brought the information in to us.
10 Q. If you are not in a position to tell me, did he just
11 come in and bring this information, but it didn't occur
12 to you that he wasn't particularly friendly or on terms
13 with Andrea McKee, or did you see a capacity for him to
14 be a tool because Andrea McKee would be somebody who was
15 comfortable with him?
16 A. I don't think I really deliberated on it too much.
17 Q. You didn't think about it?
18 A. No.
19 Q. That may or may not have been the case, as far as you
20 were concerned?
21 A. That's right.
22 Q. But what we know factually is this: (a) she was very
23 reluctant to talk to police. Isn't that right?
24 A. That's right. She was scared.
25 Q. Secondly, she was not prepared to attend the police
11
1 station?
2 A. That's correct, ma'am.
3 Q. Thirdly, a rendezvous had to take place?
4 A. That's correct, ma'am.
5 Q. Fourthly, you perceived, whatever her relationship with
6 Reserve Constable McCaw was, that he was the best means
7 of achieving that rendezvous?
8 A. That's correct, ma'am.
9 Q. Then the rendezvous itself, isn't it correct that the
10 two of them came in one motor vehicle --
11 A. That's correct.
12 Q. -- and you and your colleague, Irwin (sic), attended in
13 the other?
14 A. That's correct, ma'am, yes.
15 Q. She stepped from one vehicle to the other?
16 A. That's correct.
17 Q. Now, if we could have page number [81455], please, and
18 if we could perhaps highlight the last eight
19 lines really from:
20 "I strongly believe these fears ..."
21 I want to explore with you, first of all, what was
22 the atmosphere like in the car when she got in?
23 A. She was nervous, ma'am, so she was, and we done
24 an introduction.
25 Q. Did she outline to you why she wasn't prepared to go to
12
1 the police station?
2 A. Yes. Well, I can't recall exactly the full
3 conversation, but --
4 Q. Perhaps if I could ask if it would be good enough to
5 highlight not only that paragraph, but the
6 paragraph above, please. If fact, can we have just
7 above that as well, please:
8 "Through many years ..."
9 She outlined she lived in Craigavon and that she was
10 terrified of the consequences should her cooperation
11 with had investigation become public knowledge.
12 Isn't that right?
13 A. That's correct, ma'am, yes.
14 Q. "I was aware of the LVF influence ..."
15 A. That's correct, yes.
16 Q. "Through many years of the policing and in the
17 investigations against terrorists, I had witnessed at
18 first-hand the control that paramilitary groups had ...
19 had investigated many occurrences of intimidation ..."
20 Now, was she presenting all those types of fears?
21 A. What happened, ma'am, when she came into the car,
22 I introduced myself and then DC McAteer. We had
23 explained what reason -- why we were there. She would
24 have then outlined that she was terrified, she was
25 scared. She didn't want the information to get out,
13
1 what she was about to tell us, and for those particular
2 reasons, ma'am, yes.
3 Q. Right. So one of the reasons that she did not want to
4 go -- adamant that she was not for the police station,
5 she was terrified?
6 A. That's correct, ma'am.
7 Q. And all as you outlined. Then there was a second reason
8 as well, wasn't there? If we could just take from:
9 "In addition to these fears ..."
10 A. She had a relationship with the family, ma'am.
11 Q. If I could just take you to the last -- I am just having
12 it highlighted for you from, "I strongly believe these
13 fears were real and genuine."
14 Thank you very much. This is your view of this
15 woman who presents as nervous, terrified, intimidated?
16 A. Yes, ma'am.
17 Q. You then form your own view about her:
18 "I strongly believe these fears were real and
19 genuine."
20 A. That's correct, ma'am, yes.
21 Q. Then she gave a second reason:
22 "In addition to these fears she also had concerns
23 regarding her relationship with Tracey Clarke ..."
24 A. That's correct, ma'am.
25 Q. "... and Tracey Clarke's immediate family should
14
1 knowledge of her cooperation become known."
2 A. That's correct, ma'am, yes.
3 Q. "I provided Andrea McKee with assurances of
4 confidentiality and the fact that Tracey Clarke could be
5 re-interviewed without Andrea McKee's involvement
6 becoming known."
7 A. That's correct, ma'am.
8 Q. So the next point is this: one, she is not for any
9 police station under any circumstances; and, secondly,
10 she does not want Tracey Clarke to know anything. Isn't
11 that right?
12 A. That is correct, ma'am, yes.
13 Q. Then did it not take you by surprise that two things
14 occurred the next day? One, that she attends the police
15 station -- this is the very same police station that
16 nothing would have induced her into 24 hours earlier --
17 she attends it around 11.00 pm the next night. Isn't
18 that right?
19 A. That's correct, ma'am, yes.
20 Q. Secondly, she attends with Miss Tracey Clarke?
21 A. That's correct, ma'am, yes.
22 Q. Now, would that action the following day not belie some
23 of the presentation that you saw that night? The very
24 reasons why you conducted this bizarre interview beside
25 a cemetery, the very reasons for it no longer existed
15
1 the following day.
2 A. Firstly, I wouldn't say it was a bizarre meeting at all,
3 ma'am. Secondly, the reason why she attended the second
4 day -- and I don't know what the conversation she had
5 with Tracey Clarke was -- it was a completely different
6 reason why she was attending the second day.
7 On the second day she was simply there obviously
8 bringing Tracey Clarke to the station. She wasn't there
9 giving evidence -- giving information to the police.
10 She was simply accompanying her nephew (sic) to the
11 police station. So the two of them are in two
12 completely different areas of when she is conducting --
13 when she is meeting police.
14 The first one is she is meeting police and she is
15 giving information to the police. The second time she
16 is simply going there with her niece to be
17 interviewed -- her niece to be interviewed, and me
18 having given her assurances that Tracey Clarke wouldn't
19 know that she had provided information would certainly
20 probably have given her support that she was not going
21 to be -- it wasn't going to be put to her that we had
22 met her on the previous night.
23 Q. So --
24 A. Again, I can't say what the conversations she had with
25 Tracey Clarke were that brought her to that meeting, but
16
1 that's all I can say from my point of view.
2 Q. Then I apologise if I misunderstood.
3 The police station hadn't changed at all in the
4 24 hours, the whereabouts of it. So did she say to you,
5 "I don't actually have bother going to a police station,
6 but I don't want to go to a police station unless there
7 is somebody else with me that there is an excuse for
8 them being there"?
9 When you met at the Seagoe proximity to the
10 cemetery, my understanding, and correct me if I am
11 wrong, this was reluctance by a person to go to a police
12 station.
13 A. To give information.
14 Q. Oh, right. So it is only if she went to give
15 information she would be reluctant? She wouldn't be
16 reluctant to the whole populace seeing her weighing into
17 the police station. How would they know what she was
18 going for? She might be going to collect her handbag if
19 it had been stolen.
20 A. Ma'am, I can't get into the mind of Andrea McKee.
21 Q. No. Well, that's the very key. That is the very key.
22 Thank you.
23 A. All we done was we tried to arrange a meeting and we did
24 arrange a meeting and we got the information, and as
25 a result of that, then we brought Tracey Clarke into the
17
1 mix the following day.
2 Q. You see, now, the bringing of Tracey Clarke into the
3 following day, the Inquiry has heard evidence from the
4 mouth of Andrea McKee, not to mention Tracey Clarke,
5 that by the time Tracey Clarke came in for her interview
6 that the sad and appalling circumstances of the evening
7 of 27th April were the talk of the town.
8 Were you aware of that?
9 A. That -- the assault?
10 Q. Yes. What went on that night, there was a lot of gossip
11 and chit-chat and talk in the town. Were you aware of
12 that?
13 A. I am sure, ma'am, you know, it was a highly -- it was
14 a sectarian assault. It would have been the talk of the
15 town surely, ma'am, yes.
16 Q. Therefore, in the context of Tracey Clarke giving that
17 interview at that time, and, indeed, when Andrea McKee
18 did her covert outline to yourselves, that was in the
19 context when you would fully accept there was much talk
20 in the town about the incident?
21 A. Yes, there was much talk, yes, ma'am.
22 Q. Then if we -- do you know of anything to add at all or
23 were told anything in relation to how Andrea McKee
24 presented during the course of Tracey Clarke's
25 interview?
18
1 A. No, ma'am, no.
2 Q. You can't help us with that?
3 A. No, ma'am.
4 Q. Sorry. If you will just allow me a moment.
5 A. Yes, ma'am.
6 Q. Really, you know nothing about the gossip in the club?
7 A. No, ma'am, no.
8 Q. And you know nothing about what Andrea McKee might be or
9 might not be suggesting to Tracey Clarke --
10 A. No, ma'am.
11 Q. -- subsequent or before her interview with yourselves?
12 A. No, ma'am, no.
13 Q. You know nothing about any discussion that Tracey Clarke
14 could have had with Andrea McKee and what suggestions
15 Andrea McKee could have made to Tracey Clarke prior to
16 her coming down?
17 A. No, ma'am.
18 Q. Then your next dealings relate to the interview which
19 took place in October, 29th October, in the presence of
20 Mr P38. I fully appreciate that is a matter you have
21 already given substantial evidence on.
22 A. That's correct, ma'am.
23 Q. If we could call up [81477], and if we could just go to
24 the second paragraph, you see about just over a third of
25 the way down, you say:
19
1 "Understandably, Andrea McKee did not refer to our
2 previous meeting ..."
3 A. Yes, ma'am.
4 Q. Now, just tell me what was the presentation of
5 Andrea McKee at that interview?
6 A. In what respect, ma'am?
7 Q. Well, was she very nervous the way she was in the car
8 near the cemetery at Seagoe?
9 A. No, I don't think she was, ma'am, no.
10 Q. She wasn't nervous?
11 A. Erm, no more nervous than any other witness, I don't
12 believe so, ma'am, no. I can't --
13 Q. I appreciate there is something difficult about an
14 interview in a car late at night in a cemetery, that
15 that's quite a different circumstance than sitting in
16 a solicitor's office, but can you just tell me, did she
17 come across differently in any way to you?
18 A. Erm ...
19 Q. Allowing for those two variables. Was there anything
20 different in the way --
21 A. There was certainly, ma'am. When she was given the
22 information and intelligence, she was very nervous, so
23 she was, and she wanted reassurances that we wouldn't be
24 divulging that material to anybody else. So yes, from
25 that point of view she was a lot more nervous.
20
1 Q. So we know she was someone who was much more
2 comfortable, on 29th December 1997 (sic), with what she
3 was saying, than she was when you previously had the
4 alleged disclosure?
5 A. That's correct, and I would say probably prior to my
6 arrival she had spoken to her solicitor and they had
7 went over the account that she was going to give to me,
8 ma'am.
9 Q. Well, you don't know anything about that either.
10 A. No, but --
11 Q. Right --
12 A. I'm sure --
13 Q. And you don't know who or what talk there was in the
14 club before she went over an account to you that night
15 in the car park. You don't know that either, do you?
16 A. I do not, ma'am, no.
17 Q. Thank you.
18 THE CHAIRMAN: It is simply this, Mrs Dinsmore. You were
19 highlighting the change and the officer was simply
20 saying, "I don't know what had transpired between
21 Andrea McKee and the solicitor and that might have
22 affected it."
23 A. That's correct.
24 THE CHAIRMAN: That's all.
25 MS DINSMORE: Likewise, you don't know what talk there might
21
1 have been before she equally applied to the other
2 interview. You don't know what she talked about with
3 people or who she talked to before?
4 A. Absolutely not.
5 Q. You don't know anything about that. What you do know is
6 you can tell us that you, as an experienced policeman
7 taking a statement, found a much more comfortable
8 individual giving you a statement on 29th October.
9 A. She was strong in what she was putting in the statement,
10 yes, ma'am. I brought it to her attention. I said to
11 her, "Andrea, make sure whatever you are putting in this
12 statement is the truth, because, if it is not, people
13 will be back at some later stage. So make sure what you
14 are putting in this statement is the truth", and she
15 followed that line, ma'am.
16 MS DINSMORE: She told the truth. She was comfortable. She said --
17 THE CHAIRMAN: No, no.
18 A. I didn't say that, ma'am.
19 THE CHAIRMAN: That's not what the witness is saying at all.
20 MS DINSMORE: She was fully assured of the necessity to tell
21 the truth. I understand you are saying over and above
22 that you assured her, "If you don't, it won't go away.
23 It will come back". Isn't that right?
24 A. Yes. What I was telling her, I made her aware of the
25 declaration at the top of the statement and I said
22
1 "Listen, Andrea, make sure whatever you put in this
2 statement is the truth".
3 Q. And you did it, I think you told us yesterday, on
4 a number of occasions?
5 A. That's correct, ma'am, yes.
6 Q. What happened -- did she sound convincing?
7 A. Yes, ma'am, she did, yes.
8 Q. Did she sound very convincing?
9 A. Ma'am, you have to accept that where I was coming from
10 I had a bit more knowledge than from where she was. So
11 if she sounded convincing or not, what I was doing at
12 that stage was following a strategy from Mr McBurney,
13 and she was sticking to the account that she had decided
14 to stick to at that particular stage. So whether she
15 sounded convincing or not is -- she was strong in
16 providing the statement.
17 Q. Strong, and I don't want to fall into the dreadful trap
18 that I do all the time of repetition, but she was
19 certainly much more comfortable than your previous
20 encounter with her?
21 A. She was much more comfortable in the relationship that
22 she was having at that time than when we first met in
23 the car. Yes, ma'am.
24 Q. Thank you. Did it ever occur to you that that might be
25 the case because, in fact, she was telling the truth on
23
1 29th October 1997?
2 A. No, ma'am, no.
3 Q. It didn't?
4 A. No. Following the interview, I went back to Mr McBurney
5 and I said, at that stage, my view was we need to get --
6 he needs to get an investigation team together and start
7 to look at the background of it all, ma'am.
8 Q. But the objective bystander would have certainly been
9 convinced by her. Isn't that right?
10 THE CHAIRMAN: No. That's simply a hypothetical. Let's get
11 on.
12 MS DINSMORE: Then can I just take to you one other point?
13 Yesterday, Day 60 of the transcript, 79.1, you said:
14 "Mr McBurney's view was that Andrea McKee had helped
15 the police before."
16 Now, I just want you to explain what you understood
17 by that and why you told us that. Can you just tell us:
18 what help had Andrea McKee given to the police before?
19 A. She had met us at the cemetery and she had provided the
20 information on Tracey Clarke and, from that,
21 Tracey Clarke made a witness statement and, from that,
22 a number of individuals were charged.
23 Q. So it is not a question of there being any -- I just
24 want a clarification of that. I mean, your perception
25 and Mr McBurney's perception was the help you are
24
1 talking about there was, whether it be right or wrong,
2 what was said -- and that's a matter for the Inquiry, it
3 is a matter for the learned Panel -- whether it be right
4 or wrong, the perception of you and Mr McBurney was it
5 was helpful and that's the only help to which you are
6 referring?
7 A. Ma'am --
8 Q. There is no previous dealings in times past?
9 A. No, ma'am.
10 Q. That's all I wanted clarity on.
11 A. No.
12 MS DINSMORE: Okay. Thank you very much.
13 Questions from MR EMMERSON
14 MR EMMERSON: Mr Irwin, my name is Emmerson. I want to ask
15 you one or two short questions on behalf of the DPP.
16 A. Yes, sir.
17 Q. The first topic is the question of re-interviewing
18 Stacey Bridgett --
19 A. Yes, sir.
20 Q. -- after the discovery of a spot of his blood on
21 Robert Hamill's trouser leg.
22 A. Yes, sir.
23 Q. This is an issue which I think you were asked some
24 questions in detail about yesterday. Can I just ask
25 briefly that we look at [81466], please? Really, if we
25
1 can just take the page from the paragraph beginning,
2 "Given the foregoing", to the end.
3 I am focusing in these questions, first of all, on
4 the period prior to the submission of the murder
5 investigation file to the DPP.
6 A. Yes, sir.
7 Q. I think we established yesterday, certainly by 12th May,
8 you, as the investigating officers, were aware of the
9 forensic link. Correct?
10 A. Aware of the initial finding, yes, sir.
11 Q. By that time, Mr Bridgett had already been charged?
12 A. That's correct, sir, yes.
13 Q. He had been interviewed twice?
14 A. Yes.
15 Q. And in both interviews he had denied being physically
16 proximate to Robert Hamill at all?
17 A. I believe that was put to him, that he had been beside
18 Mr Hamill or close to Mr Hamill and he denied that
19 presence, yes, sir.
20 Q. Obviously it was then subsequent to that that the spot
21 of blood information comes to you?
22 A. That's correct, sir.
23 Q. Then on, I think, 24th October, some very considerable
24 time later, Lawrence Marshall's report is available?
25 A. That's correct, sir, yes.
26
1 Q. So at the time that the forensic information came to you
2 you already had in your evidential chest, if you like,
3 a proven lie by Stacey Bridgett.
4 A. That is correct, sir.
5 Q. I just want to understand then the reasoning here, and
6 the responsibility for the decision-making at this
7 stage, that is prior to the submission of the police
8 file.
9 After summarising the evidence, you say you took the
10 information from the forensic scientist to Mr McBurney
11 and to P39 for further direction. Then you summarise
12 what the discussions were about and under (a) there were
13 the legal questions that were discussed yesterday.
14 A. That's correct, sir.
15 Q. In other words, could he be produced from prison --
16 A. That's correct.
17 Q. -- to the police station for interview?
18 A. That's correct, sir.
19 Q. Under (b) you noted:
20 "Questioned the merits of re-interviewing Bridgett
21 who had already denied under interview having any
22 contact or having been in the vicinity of the immediate
23 attack."
24 A. That's correct, sir.
25 Q. Now, this is what I wanted to understand in a little
27
1 more detail. If one looks a little further down just
2 after the three indented paragraphs, the second sentence
3 in the paragraph towards the bottom, you say:
4 "It was highly unlikely that any further evidence of
5 the assault would be obtained at that time by way of
6 an admission?
7 A. That's correct, sir.
8 Q. Presumably, as investigating officers, you have to make
9 a judgment at this stage as to whether it is likely to
10 advance or to disadvantage any prosecution case --
11 A. That's correct, sir.
12 Q. -- to afford a suspect an opportunity for a further
13 interview.
14 A. That's correct, sir.
15 Q. You had obviously formed the view that it was unlikely
16 that, when confronted with this blood spot,
17 Stacey Bridgett would suddenly confess to having been
18 involved in the attack.
19 A. That would be correct, sir, yes.
20 Q. So any interview wouldn't be with a view to obtaining
21 an admission to his involvement in the fatal incident
22 itself?
23 A. It would be -- to clear up that point, you would be
24 putting that point to him that here he had denied being
25 present but his blood was located on the trouser leg.
28
1 Q. Yes. When there was a discussion at (b) of the merits
2 of whether there was any -- I presume by that you mean
3 whether there was any advantage to the prosecution case
4 to be gained?
5 A. That's correct, sir.
6 Q. I mean, can you flesh that out in a little more detail
7 for us?
8 A. I think we discussed with the Chief Inspector and
9 Mr McBurney taking into regard that we could not produce
10 him at the police station, it was a case of that we
11 would have to go and make arrangements for him and his
12 solicitor to meet at the prison, and the fact is we
13 would have to explain to the solicitor the reasoning for
14 that and the knowledge that this individual would have
15 the right not even to turn up. So those --
16 THE CHAIRMAN: May I just interrupt you there? If he had
17 been able to be brought to the police station, equally
18 he would have had to have a solicitor, wouldn't he?
19 A. He would, sir, yes.
20 THE CHAIRMAN: And you would have to give the same sort of
21 explanation?
22 A. That's correct, sir, yes.
23 THE CHAIRMAN: So there was no difference between those two
24 possibilities in that respect?
25 A. That's right, sir. I accept he didn't have to meet or
29
1 he didn't have to see us.
2 MR EMMERSON: I understand the account you have given about
3 the technical difficulties.
4 A. Yes.
5 Q. What I am interested in trying to explore with you is
6 where you talk about questioning the merits of
7 re-interviewing him, given that he had already denied
8 having had any contact or been in the vicinity of the
9 attack --
10 A. That's right.
11 Q. -- you have already told us that your judgment was
12 an admission was unlikely.
13 A. That's correct, sir.
14 Q. The question I really want to put to you in these terms
15 is this: did you think giving Stacey Bridgett
16 an opportunity then, given you had a proven lie
17 available to you, giving him an opportunity then to seek
18 to find some way of explaining away the forensic
19 evidence is something that would advance the case
20 against him or undermine the case against him?
21 A. Again, it was a judgment decision at that particular
22 time. I think what was the overriding factor at that
23 time not to pursue at that line was the fact that we
24 hadn't got a forensic report and there was still ongoing
25 forensic examination. So you possibly could have been
30
1 doing something and then more evidence would have
2 appeared.
3 Q. You listed that as a third consideration under
4 sub-paragraph (c). It is (b) I am interested in trying
5 to explore with you, Mr Irwin.
6 A. Yes, but that would have had an impact on the merits of
7 re-interviewing Bridgett.
8 Q. Very well. Then let's just take matters further forward
9 for a moment. It is clear I think from your statement
10 and your evidence that at least up to the submission of
11 the police file that question, "Should we re-interview
12 Bridgett?" is exclusively a question for the police.
13 Correct?
14 A. Yes.
15 Q. You have told us that after the submission of the
16 investigation file to the DPP, if you had been of the
17 view collectively, the investigating team had been of
18 the view, that a further interview was the right way
19 forward, then you would have approached the office of
20 the DPP with that view and asked for advice?
21 A. That's correct, sir, yes.
22 Q. But the approach would still have been one from the
23 police?
24 A. That's correct, sir, yes.
25 Q. You didn't do that, did you?
31
1 A. I was thinking about this last night, sir. I think, on
2 reflection -- and I don't know if there is notes from
3 the DPP about it, but we had discussed the potential
4 interview of Bridgett again, and again --
5 THE CHAIRMAN: You mean discussed with the DPP?
6 A. The DPP. I believe it was -- my thought was it was with
7 Mr Kitson or Mr Davison. I am not sure.
8 MR EMMERSON: Do you have any minute of that meeting?
9 A. I don't, no. It would have been around the time of the
10 discussions to withdraw the charges, sir, I think it
11 was. We would have discussed the fact that Bridgett had
12 told lies and how strong that would have supported
13 a charge.
14 Q. Yes.
15 A. I think the case was, yes, we know he is telling lies,
16 but telling lies in that respect wasn't a criminal
17 offence, you know.
18 I was thinking about this last night, sir, and it is
19 just I have something in the back of my head that we did
20 discuss Bridgett's position, but it didn't go any
21 further than that, sir.
22 Q. Clearly the evidential significance of the proven lie he
23 told --
24 A. Yes.
25 Q. -- was a matter for evaluation by the DPP and counsel?
32
1 A. That's correct, sir, yes.
2 Q. But the issue of whether, in the light of Mr Marshall's
3 report, which is I think dated 24th October, which you
4 then had available to you, steps should be taken to go
5 back to re-interview Bridgett at that stage, are you
6 suggesting you made that specific suggestion to the DPP?
7 A. No. It was a discussion of -- I believe it was based on
8 the grounds, "Listen, we know that Bridgett now was in
9 the vicinity of the deceased. He has told lies. You
10 know, can that not be used to support the evidence?"
11 Q. Yes.
12 A. So it was on that grounds that -- and I think the DPP
13 were strong in saying, "Yes, we know he has told lies,
14 but on that particular issue, it is not a criminal
15 offence as such".
16 So I think that was the basis on which the
17 discussion possibly was based. So, you know, if there
18 had been -- it may have been the re-interviewing of
19 Bridgett. I can't honestly recall, sir.
20 Q. Finally then on this topic, this: again, at this stage,
21 there is no longer any question after 24th October of
22 waiting for further forensic evidence?
23 A. No.
24 Q. You had by then --
25 A. That's correct.
33
1 Q. -- what you were going to have available to you --
2 A. That's correct, sir.
3 Q. -- in relation to this. Again, at that stage --
4 A. It was my view at that stage, sir, even if we had
5 questioned him, he wouldn't admit it.
6 Q. He would not admit it?
7 A. No. Strongly, you know -- I have strong views he
8 wouldn't have admitted being involved in the assault.
9 Q. Did it occur to you, in fact, giving him an opportunity
10 to try to find some sort of a fudgy explanation would
11 weaken the crystal clear lie you had available to you
12 already?
13 A. That was a possibility; that here we had a case where
14 an individual was saying he wasn't anywhere near
15 Robert Hamill and yet his blood was on the trouser leg.
16 Q. Thank you. I just want to turn now to one other topic
17 briefly, if I may.
18 If we can look at [81479], please and just five
19 lines down in the last paragraph from:
20 "I was aware ..."
21 I don't propose to read this into the transcript at
22 this stage, Mr Irwin, but just remind yourself of this
23 passage.
24 A. Yes, sir.
25 Q. You had taken the statement from Andrea McKee on
34
1 29th October --
2 A. That's correct, sir, yes.
3 Q. -- supporting her husband's account --
4 A. Yes, sir.
5 Q. -- about the telephone call. You made no reference in
6 the murder investigation file --
7 A. No, sir. That's correct.
8 Q. -- either to your meeting with Andrea McKee on
9 8th May --
10 A. That's correct.
11 Q. -- or to the fact that she had been present when
12 Tracey Clarke's statement was taken on 10th May.
13 A. That's correct.
14 Q. So, in effect, her role in delivering Tracey Clarke up
15 to you is something that was not mentioned to the DPP in
16 the murder file?
17 A. That's correct, sir. It wasn't.
18 Q. I think I am right in saying it wasn't mentioned either
19 in the neglect or Atkinson file that Mr McBurney then
20 put in at the end of the year, although I think received
21 in the DPP's department on 13th February.
22 A. That is correct, sir, yes.
23 Q. Now, that's something you discussed with him. Is that
24 right?
25 A. It is, sir. I had -- when he was compiling -- when
35
1 I was compiling the background material for Mr McBurney,
2 I did discuss that with him, and he didn't want it put
3 in in an evidential format in the file.
4 Q. So there was a deliberate decision -- I am not
5 necessarily criticising.
6 A. No.
7 Q. A deliberate decision was taken --
8 A. That's correct, sir.
9 Q. -- not to put on written record with the DPP --
10 A. That's correct, sir.
11 Q. -- in either of these files --
12 A. That's correct, sir.
13 Q. -- the fact that Andrea McKee had provided that level of
14 assistance at the outset?
15 A. That is correct, sir, yes.
16 Q. So unless that information was provided to the DPP via
17 some other route such as informal briefing --
18 A. That's correct, sir.
19 Q. -- anybody reading the neglect and Atkinson file and
20 looking at the statement of Andrea McKee supporting
21 Atkinson's what we have described as an alibi would not
22 know what you knew: namely, that when you took that
23 statement, it was inconsistent with her conduct earlier
24 on?
25 A. That's correct, sir, yes.
36
1 Q. You say a little further on in your statement -- I don't
2 take you to it now -- that you had assumed that
3 Mr McBurney would find some other way of communicating
4 that.
5 A. That's correct, sir.
6 Q. But you have no reason to think he actually did?
7 A. No, I haven't, sir. I don't know if he did or not, sir.
8 MR EMMERSON: Thank you.
9 Questions from MR GREEN
10 MR GREEN: Inspector Irwin, I am going to ask you one or two
11 questions on a very discrete matter on behalf of
12 Marc Hobson --
13 A. Yes, sir.
14 Q. -- whom you know was charged with murder and stood trial
15 at Armagh Court House. Isn't that right?
16 A. That's correct, sir.
17 Q. And was acquitted on the murder and convicted on the
18 affray charges. Isn't that right?
19 A. That's correct, sir.
20 Q. You were present throughout that trial. Isn't that
21 right?
22 A. I was, I do believe, sir, yes.
23 Q. Now, can I ask you, because it is a discrete matter,
24 I am going to have to refer you to a few documents that
25 you have not been referred to as yet.
37
1 Page [66108], please, if that could be brought up.
2 Now, this is a document -- and there are other sheets
3 further down that deal with Bridgett and Forbes -- this
4 is the notes of the evidence that was available to us
5 and your colleagues at a very early stage in the
6 investigation. Isn't that right? I think that's
7 prepared by Detective Sergeant Bradley?
8 A. Yes, sir.
9 Q. Isn't that right?
10 A. That would be right, sir, yes.
11 Q. If we look, for instance, at a precis of what
12 Constable Cooke had said in his statement: he saw
13 a person whose name has been removed, but I don't think
14 there is a redaction for this person. His name --
15 I think I can refer to it -- is Briggs?
16 A. Yes.
17 Q. He was seen at the front of the crowd. This was about
18 five minutes after the assaults occurred. Isn't that
19 right?
20 A. That's correct, sir, yes.
21 Q. "Wearing a black leather jacket and blue denim
22 trousers."
23 A. That is correct, sir.
24 Q. "Requested by Constable Cooke to move back on several
25 occasions, but refused to move. In company of
38
1 Rory Robinson."
2 Isn't that right?
3 A. That's right, sir.
4 Q. Then the precis of Constable Neill's statement, also the
5 note says:
6 "May refer to [xxxxxxxxxx]."
7 Because, of course, Constable Neill did not give
8 a name to the person. He did not know him.
9 A. That's right.
10 Q. Then the description of a person who kicked at, it would
11 seem, Mr Hamill as he lay on the ground.
12 There is a description there. Isn't that right?
13 A. That's right, sir, yes.
14 Q. It was the amalgamation of those two pieces of
15 information that enabled you to have the right, in law,
16 to arrest xxxxxxxxx. Isn't that right?
17 A. That is correct, sir, yes.
18 Q. There was sufficient information there to raise the
19 prospect of him being involved in this assault. Isn't
20 that right?
21 A. That's correct, sir, yes.
22 Q. I think the evidence in the Inquiry thus far has been
23 that that arrest was supposed to take place on 1st May
24 but it was delayed for several days until 6th May.
25 Isn't that right?
39
1 A. That is correct, sir, yes.
2 Q. He was, in fact, arrested with Bridgett and Forbes?
3 A. That is correct, sir.
4 Q. He was interviewed?
5 A. He was, sir, yes.
6 Q. I think that interview was conducted by
7 Detectives McAteer and Honeyford. Isn't that right?
8 A. It may have been, yes, sir. It could have been.
9 Q. Indeed. Now, in that interview, were you aware that he
10 gave an account of being in someone else's company? He
11 gave an alibi?
12 A. xxxxxxxx did, yes.
13 Q. Now, we don't want to name the person he said he was
14 with. That person has been anonymised.
15 A. I am not sure.
16 Q. I think P15, if you look at your cipher list --
17 A. Yes, sir.
18 Q. -- do you know that detective?
19 A. I do indeed, yes.
20 Q. He visited Mr -- the person who is named as the alibi --
21 A. Okay.
22 Q. -- and he took a statement from him. Isn't that right?
23 A. That's correct, sir, yes.
24 Q. Now, I am going to refer you to that statement and it is
25 at page [09645]. There is a lot of redaction in that,
40
1 but can you just read it? Effectively it says:
2 "On Friday night, 25th April, I left my house ..."
3 He gives an account on this first page there of his
4 movements on the Friday night and the Saturday where he
5 is in the company of a number of people.
6 If we just go over the page, please, they got a taxi
7 home at 4.30:
8 "It was Alf from Call-a-Cab who took us and I got
9 off at my house leaving [blank] and [blank] in the taxi.
10 When I got in my house at 4.30 [I think we know one of
11 those names was Briggs] were in my house in the living
12 room. I came in and went straight to the fridge and got
13 a bottle of Buckfast and started drinking. I drank the
14 Buckfast and [Briggs] drank the beer such as Labatts Ice
15 and Budweiser. He had a whole case of beer which he
16 bought on Friday tea-time at Meadows. The girlfriend
17 drank beer."
18 We don't need to read all of that, but the account
19 in that alibi statement is that this person and
20 Mr Briggs sat drinking for a period of 15 hours --
21 A. Right, sir, yes.
22 Q. -- in the house until either 7 o'clock or 9 o'clock that
23 evening, when, first of all, Briggs, at 7 o'clock, went
24 to bed, and this person, he went to bed at 9 o'clock?
25 A. Right, sir.
41
1 Q. At the bottom of that page:
2 "We sat drinking until 9.00 pm on Saturday night
3 when I went to bed at 7.00 pm. [xxxxxxx] went to bed as
4 well. My girlfriend arrived at 7.30 pm when her sister
5 brought her over. Her sister is [it gives a name] and
6 brought her in someone else's car. [xxxxxxxx] was in bed
7 when my girlfriend arrived at 7.30. We had no callers
8 all day and my girlfriend arrived at 7.30 and we sat
9 talking until 9.00 pm when she and I went to bed.
10 Neither she or I spoke to [xxxxxxx] before or during the
11 time she was in at 9.00 pm ..."
12 Just go over the page [09647]:
13 "... when we went to bed. [xxxxxxx] slept in the
14 front room and we went to the back room. The three of
15 us slept there to Sunday morning at 11.30."
16 Do you see that?
17 A. Yes.
18 Q. Now, did you see that statement at the time you were
19 dealing with the early part of this investigation on
20 6th May?
21 A. I probably did, sir, yes.
22 Q. Can you just refer to your notebook entry at
23 page [12292], please? In fact, I think perhaps it is
24 dealt better with in your statement to the Inquiry. The
25 handwriting is not very clear. Page 13 of your
42
1 statement to the Inquiry, please.
2 Page [81430]. If I can just highlight the top
3 paragraph there, please:
4 "Travelled to Lurgan ref arrests of Stacey Bridgett
5 and Dean Forbes regarding serious assaults in Lurgan
6 town centre. Duty at Lurgan. Briefed personnel ref
7 arrests. Informed ref ... at Portadown. Arranged for
8 arrests, Article 26, for serious assault Portadown on
9 27th May 1997."
10 That should be 27th April. Isn't that right?
11 A. Sorry. Yes.
12 Q. "Supervision ref interview/arrest. Attempted to contact
13 Constable Cooke who was on annual leave."
14 Now, in that notebook entry you are detailing the
15 action taken to date, which is you have arrested
16 someone. We know Briggs is one of the three arrested.
17 Can I suggest that the reason you are trying to
18 attempt to contact Constable Cooke is because he is the
19 person who named xxxxxxx. Isn't that right?
20 A. That is correct, sir, yes.
21 Q. A message was left -- well, he was attempted to be
22 contacted and he was on annual leave. Isn't that right?
23 He has given evidence saying he was away for a two-week
24 holiday.
25 A. That's correct, sir.
43
1 Q. You could not contact him and the message you left you
2 did not receive an answer to. Isn't that right?
3 A. That's correct.
4 Q. Then you arranged for a detective sergeant -- and we
5 think that's P15 --
6 A. That would be right, yes.
7 Q. -- to check the alibi of Briggs. Isn't that right?
8 A. That's correct, sir, yes.
9 Q. Later on you say:
10 "Authorised the release of [xxxxxxx]
11 unconditionally ..."
12 A. That's correct.
13 Q. You authorised the release, but did you do that having
14 looked at the alibi and forming the view that it checked
15 out?
16 A. I would have spoken to the Detective Sergeant.
17 Q. P15?
18 A. Yes. Potentially, we would have discussed the content
19 of the statement and his views on it, yes.
20 Q. Having looked at that alibi statement, do you see that
21 it is open to criticism as an alibi --
22 A. Sorry?
23 Q. -- of the person who xxxxxx says he was in the company
24 of?
25 A. In what way, sir?
44
1 Q. Well, the person whom he says he was in the company of
2 last sees him at 9 o'clock or 7 o'clock --
3 A. Yes.
4 Q. -- and next sees him in the morning at either 10.00 or
5 11.30 in the morning.
6 A. Okay, sir.
7 Q. He is not with him, because he is in one room and he and
8 his girlfriend are in another.
9 A. Yes, sir.
10 Q. Can you see how that alibi might be open to attack by
11 a shrewd defence lawyer at the Crown Court?
12 A. Well, you would have to take that in conjunction with
13 the interview of Mr xxxxxxxx himself and how he was
14 portraying himself in the interview.
15 If he was very strong in the interview, sir, you
16 would be -- and taking the views from the interviewing
17 officers, you would have been considering that with that
18 statement. So again, it's a judgment decision made by
19 ourselves.
20 Q. But you excluded him, and it was your authority that
21 excluded him, without ever speaking to Constable Cooke.
22 Isn't that right?
23 A. At that particular time, sir, yes. Uh-huh.
24 Q. And before, in fact, you made any efforts to arrange for
25 Constable Neill, who the note from Bradley suggests
45
1 might be xxxxxxx, contact with him to arrange perhaps
2 a confrontation or some form of ID. You didn't arrange
3 that, did you?
4 A. No, I didn't, sir, no.
5 Q. That could have been arranged. Isn't that right?
6 A. Well, again, sir, what I would say is obviously I took
7 my feelings from the interviewing team, and although
8 an individual is released unconditionally, obviously
9 I needed to speak to Constable Cooke. I think then
10 Constable Cooke made a statement to the effect that it
11 wasn't xxxxxxx. It was Hobson. I am not sure. There is
12 something in the system regarding that.
13 Q. You are right.
14 A. Is that right?
15 Q. There is absolutely no doubt about that. The point I am
16 asking about here is that this alibi seems to have
17 excluded at a very early stage without Constable Cooke
18 having been contacted, because he was on annual leave,
19 but strangely perhaps without Constable Neill coming in
20 to say, "Is this the person you saw?"
21 A. Again, sir, I think it's a judgment decision and it was
22 made from taking the interview, taking the interviewers,
23 how strong this individual was and what he was saying,
24 and on taking the statement and the advice from the
25 detective sergeant on how he felt the alibi witness was
46
1 conducting himself.
2 So at that stage, you would then -- and before you
3 would go through a confrontation process, you would have
4 to go through an identification parade. If that
5 individual had wanted to go on an ID parade, that
6 wouldn't have happened that day either, because that
7 would have to have been arranged through Belfast. So he
8 would have to have been released on bail to organise
9 that, sir.
10 So nothing would have happened that particular night
11 in relation to an ID parade as well. So you are
12 balancing all those factors up, sir, and what I needed
13 to do was speak to Constable Cooke at that particular
14 time. That's the angle that I went at.
15 Q. Or Constable Neill?
16 A. Well, sir, if this individual -- as I say, you were
17 going down an ID parade at that particular stage, which
18 you may not have needed to have went down, you know.
19 Again, sir, that's a judgment decision and
20 procedures and you are weighing up whether you are
21 wasting police time and everybody else's time organising
22 an ID parade when you get an opportunity to speak to
23 Constable Cooke and he can then put you in the picture
24 strongly and he did -- as soon as we spoke to
25 Constable Cooke, I think Constable Cooke said he made
47
1 a wrong mistake on the name.
2 Q. We know what Constable Cooke says about it.
3 Constable Cooke was on annual leave. You were involved
4 in a major criminal investigation. At this stage, it
5 wasn't a murder.
6 A. That's correct, sir.
7 Q. But it very soon turned into a murder.
8 A. That's correct, sir.
9 Q. You were prepared to wait for two weeks before
10 Constable Cooke came back from annual leave, when you
11 could have gone to Constable Neill and made the
12 arrangements, but it seems as if no effort was made to
13 do that by you. Isn't that right?
14 A. No, sir. What I was doing was -- again, sir you have to
15 take the assessment of the individual officers that are
16 interviewing this individual, and if you needed to look
17 at the interviews of Mr xxxxx -- and the officers were
18 coming to me and saying they were certain that they
19 didn't believe that this individual was involved in
20 it -- you then went and you seen a person that was
21 giving an alibi. This person was saying, "This
22 individual was in my house. He was in a bedroom. Yes,
23 I was in another bedroom. Yes, I didn't see him for
24 whatever, but he was in the house".
25 Q. He didn't see him for the period of time at which
48
1 Constable Cooke said he was on the streets of Portadown
2 is what it amounted to?
3 A. But he said he was in his house in his bedroom. Again,
4 judgment decisions. At that particular time, I made the
5 judgment decision.
6 MR GREEN: Yes. Thank you.
7 Questions from MR McKILLOP
8 MR MCKILLOP: Just one matter. I appear for D, E and F.
9 Can we bring up page 27 of your statement, [81444]? May
10 we highlight the very top of the statement,
11 paragraph (d)?
12 Now, we touched on yesterday a number of actions you
13 directed should be taken to help identify the assailants
14 of Robert Hamill. D is one of them. Isn't that
15 correct?
16 A. That would be correct, sir, yes.
17 Q. "A41, dated 29th April 1997, to re-interview F, as
18 a police officer was adamant she had identified
19 the assailant of Robert Hamill (she subsequently denied
20 making such a comment."
21 A. That's correct, sir, yes.
22 Q. Do you recall who the police constable was?
23 A. I think it was Reserve Constable Silcock.
24 Q. Do you recall the assailant who was identified? Was
25 that Stacey Bridgett?
49
1 A. I think it was Stacey Bridgett. He described somebody
2 with their nose bleeding and the girl with Mr Hamill
3 said -- somebody called out the name "Stacey" and the
4 girl said something to the effect of, "He was involved",
5 or something to that effect.
6 Q. Are you clear that the source of this identification
7 pointed to F?
8 A. It would have been -- I can't say if it was F or E now,
9 sir. You would have been trying to work that out
10 between Reserve Constable Silcock's evidence at that
11 time. If he said he was with Robert Hamill and who
12 was -- and then we had a witness statement from one of
13 the individuals who was saying they were with Robert,
14 then that's how you were trying to work that out.
15 Q. I was just seeking to clarify. If we could then just
16 move on to [81465] of your statement and if we could
17 just concentrate on the bottom two lines:
18 "A police officer, Reserve Constable Silcock, had
19 identified a remark made regarding a person called
20 Stacey. This remark", if we go on to the next
21 page [81466], "had been made in the immediate area of
22 the assault. However, the witness, Miss E, who was
23 believed to have made the reference to this individual
24 being involved with the assaults, later denied making
25 such a remark to Reserve Constable Silcock."
50
1 I am wondering. That's E mentioned at that point.
2 Is that simply a mistake? Is that meant to be F?
3 A. I am not sure, sir. The action sheet -- who was -- the
4 action sheet was raised to interview the individual and
5 it would --
6 Q. I think we have heard Detective Constable Keys
7 re-interviewed F?
8 A. Right-o. Then I would have to accept that, sir.
9 Q. I wonder if I can refer you to the Reserve Constable's
10 statement to the Inquiry. [81162]. It is paragraph 11
11 I want highlighted, the first half of it.
12 Now, this is where the Reserve Constable states.
13 "I recall a woman wearing a white top pointing out
14 a youth to me in the crowd. She alleged he had jumped
15 on the head of Robert Hamill. I looked over at that
16 youth. He was smaller than Rory Robinson and was
17 wearing a grey tracksuit top. I could hear people call
18 him Stacey and I saw him react to that name by turning
19 around and acknowledging the people who were calling his
20 name. He had blood coming from his nose."
21 Do you agree with me, Inspector, that Reserve
22 Constable Silcock, he is identifying a person wearing
23 a white top as being the source of that information?
24 A. Yes, sir. Is that a statement that was made to the
25 police?
51
1 Q. No, this was a statement he made to the Inquiry.
2 A. If you could look at the statement made to the police,
3 sir, if you don't mind.
4 Q. No. I am not sure if I have it.
5 MR UNDERWOOD: Probably [09220].
6 A. "... a woman wearing a white top ..."
7 It is on that, sir, on that page
8 MR MCKILLOP: Yes:
9 "One of the rowdy youths was pointed out to me by
10 a woman wearing a white top, who alleged that this ..."
11 A. "... youth ..."
12 Q. Just carry on overleaf, [09221]. Again, simply a woman
13 wearing a white top?
14 A. That's correct, sir, yes.
15 Q. I am just saying, is it possible there was some
16 confusion that this woman with the white top was
17 Witness F?
18 A. Sir, I think that was one of the reasons that I wanted
19 to speak to the solicitor, because that was one of the
20 areas that we obviously wanted to try to pursue, so we
21 did.
22 Q. Yes. But it is correct that F had made a statement
23 later on the same day as Robert Hamill was assaulted?
24 Were you aware of that?
25 A. That's correct, sir. I think later on, though, they
52
1 started to refer us to their solicitor.
2 MR MCKILLOP: Thank you.
3 THE CHAIRMAN: The solicitor being Rosemary Nelson, wasn't
4 it?
5 A. Yes, sir.
6 Questions from MR DALY
7 MR DALY: Just briefly, Mr Irwin, in relation to
8 Andrea McKee, if I can refer you to back to the meeting
9 that took place at Seagoe.
10 A. Yes, sir.
11 Q. There seems to be a suggestion that in some way there
12 was something underhand or something, if you like, sly
13 about this meeting?
14 A. Nothing sly about that meeting, sir, no.
15 Q. In fact, is it fair to say that Ms McKee was putting
16 herself at some considerable risk?
17 A. She was, sir, yes.
18 Q. In relation to her subsequent attendance with her niece
19 to interview, again, in your view, was there anything
20 underhand in relation to that?
21 A. Really I don't know the circumstances of that, sir, but
22 I became aware she had come to the police station with
23 Tracey Clarke, but there was certainly nothing underhand
24 from my point of view or any of the police officers that
25 I knew were involved in --
53
1 Q. In your knowledge in relation to both of those, her
2 attendance at Seagoe and her attendance at interview,
3 would there have been anything selfish or strategic from
4 her own point of view in those actions?
5 A. I couldn't see any, sir, no.
6 Q. You couldn't see any. You couldn't possibly see any?
7 A. No.
8 MR DALY: Thank you.
9 THE CHAIRMAN: Can you just tell me, if a car drives up to
10 the police station, is there some yard it can drive into
11 or do people get out on the public street?
12 A. They get out on the public street, sir. In Portadown,
13 actually, the police station has the barriers. All
14 police stations, or a lot of them, were reinforced and
15 they had security barriers. So the individual would
16 have to park in the street and walk into the police
17 station, sir.
18 THE CHAIRMAN: How far would they be able to park from the
19 police station?
20 A. In Portadown, all depending on the parking and on what
21 time of day, 20 yards would be the closest that you
22 could get and up to 100 metres you would get a parking
23 spot, sir.
24 THE CHAIRMAN: Thank you very much.
25 REV. BARONESS KATHLEEN RICHARDSON: Is my memory at fault or
54
1 wasn't Michael McKee also with Andrea McKee and
2 Tracey Clarke when they came to the police station?
3 A. I don't think Michael McKee was, ma'am. I think it was
4 only Andrea McKee was there at the police station.
5 REV. BARONESS KATHLEEN RICHARDSON: I am mistaken then.
6 Okay.
7 THE CHAIRMAN: Yes, Mr O'Connor?
8 Questions from MR O'CONNOR
9 MR O'CONNOR: Mr Irwin, P38 is a man who made a statement
10 which was made, if you like, public on Tuesday evening
11 of this week. I just want to ask you three questions
12 about P38. They are specific questions which require a
13 "yes" or "no" answer -- do you understand that -- for
14 reasons of anonymity?
15 A. Yes.
16 Q. Is P38 a man you saw in jail after he pleaded guilty to
17 a very serious crime?
18 A. Yes.
19 Q. Did you, as he says in his statement, give all sorts of
20 incentives to plead guilty?
21 A. No, sir.
22 Q. Is it right you did not meet him until after he had
23 pleaded guilty and was convicted of a very serious
24 crime?
25 A. That is correct, sir.
55
1 Q. Thank you. If I can then take you to page [81431] of
2 your own statement to the Inquiry. Just to make it
3 clear, you began duty at 8.15 -- this is the first
4 line of that statement -- on Monday, 28th April --
5 A. That is correct, sir.
6 Q. -- 1997, over 30 hours after the initial assault on
7 Robert Hamill. Isn't that right?
8 A. That's correct, sir, yes.
9 Q. Where were you until that stage?
10 A. I was off duty, sir.
11 Q. Did you take a lot of time off duty?
12 A. No, sir. I took the weekends that I could get off, sir.
13 Q. Were you a busy DI in those days?
14 A. I think the majority of detective inspectors in the CID
15 were very busy, sir. Any opportunity you got to get
16 a day off, you took it, sir.
17 Q. You gave evidence during this Inquiry that you were
18 trying to catch up with the investigation from the
19 start.
20 A. That's correct, sir. You hit the ground running as
21 such. We had a conference that morning and the Chief
22 Inspector with the two officers would have given us
23 an update of what was going on and the lines of enquiry
24 that had to be pursued that morning, sir.
25 Q. P39 was your immediate superior. Isn't that right?
56
1 A. That is correct, sir, yes.
2 Q. The assault on Mr Hamill was not the only thing that had
3 happened that weekend, was it?
4 A. No, sir.
5 Q. There was an incident in Lurgan?
6 A. There was, sir.
7 Q. And an incident in Banbridge?
8 A. Yes. In Lurgan, sir, a young boy of 13 years had lost
9 his eye following a discharge of a plastic baton round
10 and there was allegations of attempted murder, and in
11 Banbridge then there was a sectarian assault in which
12 an individual was unconscious at Craigavon Area
13 Hospital, had been knocked unconscious.
14 Q. Just to be clear about those, those incidents happened
15 on 26th April. This is where the young man lost an eye,
16 a young boy?
17 A. That's correct.
18 Q. It was 26th April about 9 o'clock?
19 A. That's correct, sir.
20 Q. This is all in your statement. The assault on the hot
21 food premises in Banbridge was also on 26th April and
22 that was at 1.45 in the morning?
23 A. That's correct, sir, yes.
24 Q. It is clear from your statement that you were sent off
25 after the morning conference by P39 to investigate those
57
1 serious matters.
2 A. That's right. To supervise those. The Chief Inspector
3 said that she would look after the assault on
4 Robert Hamill if I went and supervised those two other
5 investigations.
6 Q. Then if I take you to page number [81434], you returned
7 to Portadown -- the top of that page -- in the late
8 afternoon of the 28th. Do you remember what time you
9 got back?
10 A. It must have been, sir, approximately 3 o'clock to
11 5 o'clock. I can't honestly say, sir.
12 Q. You had begun work at 8.15 in the morning?
13 A. That's right.
14 Q. You are back close to 5 o'clock. Isn't that right?
15 A. That's right, sir.
16 Q. Then you get yourself up to speed with the Robert Hamill
17 investigation to date?
18 A. That's correct, sir.
19 Q. So up until that time, you had no opportunity to have
20 anything to do with the Robert Hamill investigation?
21 A. No, sir. At the conference that morning the chief
22 seemed to be in full control of what was being directed.
23 I may have made some comment, sir, at the conference.
24 Q. Can I suggest to you, just to really save a bit of time,
25 that what you did was you started action sheets?
58
1 A. Action management, yes, sir.
2 Q. Nobody had done that yet. You did that?
3 A. Yes, sir, yes.
4 Q. It appears, if we just flick through the next two pages,
5 [81435], [81436], that you had written 42 action sheets
6 on the Robert Hamill assault -- incident by the end of
7 that day.
8 A. That was correct, sir.
9 Q. Is that right?
10 A. That's right. What I was doing was reading the
11 statements or reading the material that was -- it would
12 have been retained in a file and what I was trying to do
13 then was pull it together and make sure that actions
14 were being pursued, sir.
15 Q. Now, I am just dealing with short specific points now.
16 A. Okay, sir.
17 Q. The next point is in relation to questionnaires.
18 A. Yes, sir.
19 Q. There was evidence that I asked one witness about
20 questionnaires. Was that normal -- would it be normal
21 to have questionnaires compiled in relation to a GBH?
22 A. Yes, sir.
23 Q. You did that. Isn't that right?
24 A. I did, sir, yes.
25 Q. Why did you do that?
59
1 A. I could see the benefit from an investigation point of
2 view. What you were trying to do was you were trying to
3 identify witnesses and their location and their
4 movements through the town centre. You were trying to
5 identify who was with them and who could give them
6 alibis in the town centre and you were trying to
7 establish what they were wearing and if there was any
8 marks on them, sir.
9 Q. Would it be your evidence that that was a very normal
10 thing to do, to make up a questionnaire?
11 A. No, sir. Every individual officer, investigating
12 officer, would have their own methods of doing things,
13 sir.
14 My structure was I saw this was a volatile situation
15 and this could be of benefit to me and to the chief to
16 try and establish movements, because from reading the
17 statements that I was reading the night before, there
18 was confusion and conflicting accounts of where people
19 were and what they were doing.
20 So what you were trying to do was get a picture in
21 your own mind of where people were, who they said they
22 were with and what they were doing and what they were
23 wearing, so that, as you started to focus in on the
24 suspects, you had some account and you had some
25 information and intelligence that you may be able to use
60
1 later on in the investigation.
2 Q. In relation to the searches of 10th May, the morning of
3 10th May, you had a CID officer in charge of each of
4 those searches. Is that right?
5 A. That's correct, sir, yes.
6 Q. Why was that?
7 A. Well, I had always appointed a CID officer to go with
8 the team because, one, they done the arrests and, two,
9 they were there for advice and guidance through the
10 searches, sir, and as well those officers, if they had
11 any trouble or any difficulties, they could come back to
12 myself, sir. So it was -- I would have said it was good
13 police practice.
14 Q. Yes. In your experience, would a CID officer go into
15 a house not having any idea of what he was looking for?
16 A. Well, sir, if he did, he should have been back to the
17 police station and on to me if that had happened.
18 Q. I think my point was really this: was there any
19 difficulty, if the search was going on and they didn't
20 know what they were looking for, for you to be
21 contacted?
22 A. Absolutely not, sir, and for advice, I was always there,
23 sir, for it.
24 Q. Now, just from your own background, you have mentioned
25 you were a busy DI at this time.
61
1 A. That's correct, sir, yes.
2 Q. I think you felt -- you did -- you created or compiled
3 a 68-page statement for this Inquiry. Isn't that right?
4 A. That is correct, sir, yes.
5 Q. Mr Underwood began questioning at page 23, but there is
6 quite a bit of detail about the background to policing
7 in there. There is quite a bit about the HOLMES system
8 in there.
9 A. That is correct, sir.
10 Q. We have covered a good deal of that and it is there for
11 the Inquiry. It is not really for me to pick over every
12 word of it. There is a couple of examples.
13 In relation, for example, to Drumcree, you have set
14 out what your duties were in relation to Drumcree.
15 THE CHAIRMAN: If it helps, Mr O'Connor, we have all three
16 read the whole of the statement.
17 MR O'CONNOR: I understand you would have, Mr Chairman.
18 Sorry, Mr Chairman, you are saying you have read the
19 whole of the statement?
20 THE CHAIRMAN: Yes.
21 MR O'CONNOR: Sorry, I didn't quite pick you up. I don't
22 intend going through it in any great detail, but I just
23 want to highlight one or two small points.
24 First, the bottom of page [81424], 21st April --
25 these are dealings with Drumcree, Drumcree-related
62
1 things, 2nd June, 10th June, 13th June.
2 A. Yes, sir.
3 Q. This Inquiry knows a good deal about Drumcree now.
4 A. Yes, sir.
5 Q. When you say you were dealing with Drumcree, is that
6 something that took up a lot of your time?
7 A. It was a big commitment, sir, yes. It was a massive
8 commitment. You didn't know, right up to the day, what
9 way it was going to continue, sir. So you were -- you
10 had to prepare for a number of eventualities and it was
11 a big commitment for me in briefings and in getting
12 policy and organising things and then investigating the
13 crimes afterwards, sir.
14 Q. We see that the dates you have mentioned, for example,
15 are from 21st April to 9th July.
16 A. That is correct, sir.
17 Q. Which was really the initial stages of the Robert Hamill
18 investigation. Is that right?
19 A. Well, yes, sir. They run into -- they run over, sir.
20 There was a lot of commitments.
21 Q. Not only were you organising in relation to Drumcree,
22 but if we turn over the page to [81425], Drumcree
23 created a lot of crime as well.
24 A. A lot of crime, sir, yes.
25 Q. That had to be dealt with as well?
63
1 A. That had to be dealt with as well, so we were fully
2 committed.
3 Q. Your own history to date, you have just retired. Is
4 that right?
5 A. I have, sir, that's correct. I retired from the PSNI in
6 2008, sir, and then I was re-employed with them for
7 a year, sir.
8 Q. You were disclosure officer in another inquiry. Is that
9 right?
10 A. That's correct, sir, yes.
11 Q. That was your job recently?
12 A. It was indeed, sir.
13 Q. How many years in total were you in the RUC and PSNI?
14 A. 27, years, sir.
15 MR O'CONNOR: Thank you.
16 MR UNDERWOOD: I want, out of fairness, to be able to put to
17 Mr Irwin some documents about house-to-house enquiries
18 and another document. Unfortunately, some of those
19 documents are not yet on the system. It will take
20 ten minutes to put them on the system. May we rise?
21 THE CHAIRMAN: We have been on the go for an hour and
22 a half. So we'll have a break. Ten minutes.
23 (11.25 am)
24 (A short break)
25 (11.35 am)
64
1 MR UNDERWOOD: Mr Irwin, you were asked yesterday whether
2 any house-to-house searches were sought. Can I put some
3 documents to you?
4 A. Yes, sir.
5 Q. Page [03529]. This is action 164, house-to-house
6 enquiries Market Street. Do you see at the bottom
7 160597:
8 "No flats/houses."
9 Does that ring bells with you?
10 A. It doesn't ring bells, but that's ...
11 Q. Is that the sort of action you would expect?
12 A. That's the action you would expect, sir, yes.
13 Q. [03531]. Action 165. That's house-to-house enquiries
14 for High Street?
15 A. Yes, sir.
16 Q. Again:
17 "16.05.97.
18 "No flats/houses."
19 Again, do you have any memory of this?
20 A. I don't have any recollection of it, sir, but yes.
21 Q. [03533] Thomas Street?
22 A. Yes.
23 Q. Then if we look at the bottom three lines:
24 "Flat [blank] is occupied by [blank] who returned
25 home at 0015 hours on 27.04.97. Went to bed. Seen or
65
1 heard nothing. Flat [blank] are unoccupied. Flat
2 [blank] visited by DC [blank]. MIR2 attached."
3 Then if we look at [03535], we get action 167 for
4 Woodhouse Street. The response at the bottom is:
5 "No flats/houses."
6 A. Yes, sir.
7 Q. The picture we get here is house-to-house enquiries were
8 sought of the streets?
9 A. Yes, sir.
10 Q. The only flats or houses which were actually visited
11 were dealt with in Thomas Street, we see?
12 A. Yes.
13 Q. Does that chime with your memory?
14 A. I can't recall offhand, sir, but it would have been
15 usual to do house-to-house enquiries.
16 Q. Very well.
17 A. On saying that, it was a commercial area, sir, so
18 I wouldn't have been surprised there were no houses in
19 a number of streets.
20 Q. Okay. Can we just look finally at page [02416]? It's
21 a message. Perhaps we could highlight the text in the
22 middle. Is this your message, your writing?
23 A. Yes, it is, sir, yes.
24 Q. "Confirmed formally by Mr Leckey, HM coroner, that he
25 had reconsidered the situation regarding holding
66
1 an inquest into the death of Robert Hamill and that he
2 had now decided not to hold an inquest. He requested
3 that I now inform Witness A and Witness B of this
4 situation. Witness B informed by DC Honeyford.
5 Witness A is now residing", and gives an address, "with
6 Allister Hanvey and is believed to be pregnant.
7 Presently no contact between Witness A and her mother.
8 Attempts made to contact Witness A. No answer. Coroner
9 informed of this position. Updated DCS McBurney ref
10 situation regarding coroner's formal decision and as
11 a result will not have the opportunity to ..."
12 A. "... speak again to a number of individuals".
13 Q. "Decision made to re-interview Michael and
14 Andrea McKee."
15 A. "Developments reported via message sheet."
16 Q. Can you just expand on the thinking here about how it
17 was that the opportunity to speak to a number of people
18 who were connected to an inquest could have helped on
19 breaking the alibi?
20 A. No, I think what Mr McBurney was looking to do was have
21 the opportunity to go round a number of witnesses again
22 when we were informing them of the coroner's inquest.
23 Sir, I wouldn't have had the full insight into
24 Mr McBurney's views on it. All I could do was follow
25 his decisions, sir. So really that's all I could say.
67
1 MR UNDERWOOD: Thank you very much.
2 Questions from THE PANEL
3 THE CHAIRMAN: What was the date on which the coroner told
4 you of his decision?
5 A. 2nd June, sir, it seems, on the message sheet.
6 THE CHAIRMAN: Yes, I see it. Sorry.
7 A. 2nd June.
8 THE CHAIRMAN: Thank you.
9 MR UNDERWOOD: Unless there is anything arising, sir. Thank
10 you, Mr Irwin.
11 THE CHAIRMAN: Can you just help me about this: if there are
12 criminal proceedings ongoing, would the coroner hold
13 an inquest which bore upon those criminal proceedings
14 before they had been concluded?
15 A. No, sir. What happened in Northern Ireland is we would
16 get the criminal proceedings out of -- they would be
17 dealt with first and in a number of circumstances, if
18 there was criminal proceedings and persons were
19 convicted of murder, the coroner would decide not to
20 hold an inquest. Mr McBurney -- after the murder case
21 and the subsequent conviction for the affray of
22 Marc Hobson, Mr McBurney's direction to me was to go and
23 see the coroner and encourage him to have an inquest,
24 sir.
25 THE CHAIRMAN: Thank you, but it is quite common, is it, for
68
1 an inquest to be opened and then adjourned because of
2 police investigations?
3 A. That's correct, sir, yes.
4 THE CHAIRMAN: Thank you.
5 MR UNDERWOOD: Thank you very much for coming, Mr Irwin.
6 A. Okay, sir.
7 (The witness withdrew)
8 MR UNDERWOOD: Christine Smith now, please.
9 While we are waiting for Ms Smith to be found,
10 I wonder if I can ask people to give time estimates for
11 how long they are likely to be with Mr Mahaffey? He has
12 flown over here, as has Sir Ronnie. I am just anxious
13 to see that we will get through today.
14 MR WOLFE: I don't imagine being very long.
15 MR McGRORY: I don't imagine being very long either. I say
16 that with some caution.
17 THE CHAIRMAN: Yes, I understand the caution.
18 MR O'HARE: Nor do I.
19 MR McCOMB: Perhaps one or two questions.
20 MS DINSMORE: Little, if any, time will be taken by me.
21 I will be in the Mr McComb school of thought.
22 MR EMMERSON: Similarly short, if any.
23 MR UNDERWOOD: That's very helpful. Thanks.
24 MS CHRISTINE SMITH (sworn)
25
69
1 Questions from MR UNDERWOOD
2 MR UNDERWOOD: Morning, Miss Smith.
3 A. Morning.
4 Q. My name is Underwood. I am Counsel to the Inquiry.
5 I have a few questions for you and then it may well be
6 there are some supplementals after that.
7 A. Okay.
8 Q. Can you tell us your full name, please?
9 A. Yes. Christine Ann Smith is my maiden name and the name
10 under which I practise, but my married name is Hamill.
11 Q. Thank you. If we look at page [81924] --
12 A. Right.
13 Q. -- we see the first page of a statement. Would you mind
14 keeping your eyes on that while we flick through the
15 seven pages of it?
16 A. Yes.
17 Q. Is that your witness statement?
18 A. It is, yes.
19 Q. Is it true?
20 A. It is inaccurate in two paragraphs.
21 Q. Right.
22 A. When I signed it, I hadn't received certain documents
23 which I have subsequently received from PPS and in the
24 statement I state on two paragraphs -- I think it is 5
25 and maybe 11, I think -- that I had not taken a note of
70
1 the consultation, the first consultation in [address redacted], but
2 I did, in fact, take a note and I have since seen a copy
3 of that. I obviously handed it over to the PPS and
4 I have since seen that.
5 Q. Thank you very much.
6 A. Other than that, the contents are true.
7 Q. I take it from those answers that you have gone through
8 this with some care?
9 A. I have tried to, yes.
10 Q. Thank you very much. May I take you to paragraph 9,
11 which we find on page [81926]?
12 A. Uh-huh.
13 Q. You are dealing with the events here of
14 22nd December 2003.
15 A. Yes.
16 Q. What you are reporting here is:
17 "Andrea had said that she was unable to travel to
18 court that day because her son was ill with swollen
19 testicles and suspected mumps and she didn't feel that
20 she could leave him. I advised the defence in the same
21 terms and they agreed that, if that was the case, then
22 it was right to adjourn the matter. The defence team
23 was, however, sceptical about the reason for
24 non-attendance and agreed to the adjournment on
25 condition that some documentary proof of the child's
71
1 illness was provided on the next occasion."
2 That's accurate, is it?
3 A. Pretty much, yes. No, it is accurate. It is a synopsis
4 of what took place that day.
5 Q. When you say there in the final sentence:
6 "The defence team was ... sceptical ... and agreed
7 to the adjournment on condition that some documentary
8 proof of the child's illness was provided on the next
9 occasion".
10 What sort of documentary proof was spoken about
11 here? Was this a certificate or report? What?
12 A. Yes. Whatever medical evidence we could produce to
13 establish her child was ill on that date and was
14 suffering from the conditions she described.
15 Q. Right. What was to happen? Was any eventuality catered
16 for here? What was to happen if no such satisfactory
17 proof came up?
18 A. As I recall it, if I can just reflect on what occurred
19 that day, I turned up that morning, was told she was
20 unable to attend, that her child was sick. I was given
21 the distinct impression that the child had become sick
22 over the weekend, and that the impression I was given is
23 that the child was really very ill and seriously ill
24 and, naturally enough, in those circumstances, a mother
25 was concerned and the defence were -- they were
72
1 accepting what I was saying, but they were of the
2 opinion that that was not the reason for her
3 non-attendance.
4 Q. Right. So they thought either the child was not ill,
5 or, if the child was ill, it was just an excuse for
6 non-attendance?
7 A. Yes, essentially.
8 Q. So to go back to my question, was the eventuality
9 catered for that you did not come up with such proof?
10 A. No. At that stage, we believed we could get the proof.
11 We had no reason to believe that we wouldn't, and, in
12 fact, we were taking steps that morning to try to get it
13 for court that morning, as I recall.
14 Q. What DC Murphy told us was that she had contacted the
15 surgery and asked for them to produce a certificate that
16 day --
17 A. That's correct.
18 Q. -- but it turned out the GP was away. Does that refresh
19 your memory?
20 A. That's correct, but also, as I recollect, Ms Murphy
21 spoke both to Andrea and the surgery, which I understand
22 was Strathmore surgery, from the papers. She spoke to
23 them and they said they could not give us anything
24 without Andrea's say-so. So they were contacting her
25 that morning and, in fact, I note from the papers that
73
1 I have been provided there is some reference to a phone
2 call from Strathmore surgery to Andrea's home that
3 morning.
4 Q. Of course, she visited the GP that morning, didn't she?
5 A. Subsequent to that phone call, I believe.
6 Q. If we look at page [34061], this is a note, we are told,
7 from Mr Morrison, of it. Is this familiar to you?
8 A. Yes.
9 Q. Is this the only note that either of you made, as far as
10 you are aware?
11 A. I have an even sketchier note which I have seen in the
12 papers, which I actually have here, but it was -- it is
13 dated 22nd December:
14 "Adjourned because witness requested."
15 Then I have left it blank. Then:
16 "16th February to suit witness, defence counsel week
17 commencing 8th March '04. RM fixed PEPI. If failure to
18 launch medical certificate 02.01.04 for mention."
19 So your note refers to a medical certificate?
20 A. Yes, I mean, medical evidence of some sort was what was
21 meant by that.
22 Q. Fine. I am just interested in what contemporaneous
23 records there are of what it was that was being sought.
24 A. Yes.
25 Q. You chose to write the word "certificate"?
74
1 A. I believe that maybe was a word used by someone in the
2 court that day.
3 Q. We know then that what happened was that the police
4 turned up two statements from the GP. Can I remind you
5 of those?
6 A. Yes.
7 Q. If we look first at [34042], this is Dr Baker, or
8 Barker. I can't remember. It is the GP in any event.
9 A. Yes.
10 Q. He tells us a GP. The substance of it says:
11 "I confirm that on 1st December 2003 [the child] was
12 brought to see me when I diagnosed an ear infection and
13 possibility of mumps as well. He was prescribed
14 appropriate treatment. He further consulted my partner
15 [blank] on 22nd December 2003 when an ear infection in
16 both ears was again diagnosed."
17 Then, if we look again at [59853].
18 A. Sorry. Might I have a clean glass for some water,
19 please?
20 Q. Of course. I am sure somebody will sort you out one.
21 [59853], a further statement, 30th December, the same
22 doctor. On the second line he says:
23 "In furtherance to my previous statement regarding
24 [the child] I can now also confirm that the named
25 patient was visited at his home by myself following
75
1 a request from his mother to the surgery for a doctor to
2 attend. The child was suffering from ear infection and
3 possibility of mumps as well. I recall prescribing the
4 patient antibiotics for his illness. This visit took
5 place on 11th December 2003."
6 What you have from those two is that the child had
7 been seen three times in December, including on the day
8 Andrea was supposed to attend court, and that there was
9 an ear infection and the possibility of mumps diagnosed
10 certainly on two of those occasions --
11 A. Uh-huh.
12 Q. -- and appropriate medication was prescribed, which at
13 least included antibiotics.
14 A. Yes.
15 Q. Were those materials given to the defence in consequence
16 of the adjournment?
17 A. Probably. I honestly am not sure. If they had been,
18 they would have been given, I presume, by Mr Morrison.
19 Q. Did you see them?
20 A. Yes.
21 Q. What did you think of them?
22 A. They were inadequate.
23 Q. Why is that?
24 A. They don't refer to the child being ill over the weekend
25 of the 19th, 20th preceding.
76
1 Q. Forgive me. How can that possibly be right, if that
2 child is ill on the 11th and the same diagnosis is made
3 on the 22nd?
4 A. On the 22nd, yes, but there was no reference in that to
5 the child being seen over the weekend of the 19th, 20th
6 and, also, there was no reference in either of those to
7 swollen testes.
8 Q. Right. Let's go back to paragraph 9 at page [81926]:
9 "Andrea had said that she was unable to travel to
10 court that day because her son was ill with swollen
11 testicles and suspected mumps and she didn't feel that
12 she could leave him. I advised the defence in the same
13 terms ..."
14 Nowhere in there was there any contention, let alone
15 any delivery to the defence, of a suggestion that the
16 child had been seen over the weekend, was there?
17 A. No, there wasn't.
18 Q. That didn't emerge, in fact, did it, until a later date?
19 A. Until later, no, that is correct, but by the time
20 I received the medical reports on the 30th, I was aware
21 there was an issue that the child had been seen over the
22 weekend. So when I received those medical reports,
23 I considered them to be inadequate.
24 Q. Inadequate for what?
25 A. For determining whether or not the information that
77
1 I had given to the court was, in fact, correct. I was
2 led to believe that this child was very seriously ill.
3 Q. You didn't tell the court that, did you?
4 A. I certainly told the defence counsel that, yes.
5 Q. I have asked you several times whether you agree with
6 paragraph 9 of your statement.
7 A. I did say the paragraph was a synopsis of what had
8 occurred.
9 Q. I see. So you told the defence, did you, that the child
10 was very ill?
11 A. Yes. There was discussion between counsel at court on
12 that morning. I was led to believe that the child was
13 very ill and that was the information that I conveyed
14 both to them and to the court.
15 Q. Your view was that these statements from the GP did not
16 adequately reflect the seriousness of the illness that
17 you had been led to believe?
18 A. Yes.
19 Q. Right. What steps did you advise being taken to check
20 with the GP how ill the child actually had been?
21 A. Well, by that stage, we had been told that Andrea had
22 been to Pendine Park and steps were taken to ascertain
23 from Pendine Park what attendance there had been, and we
24 decided that the best way to try to clarify matters was
25 to go to speak to Andrea in [address redacted].
78
1 Q. You at no stage advised asking the GP how ill the child
2 had been, did you?
3 A. No, I didn't.
4 Q. Did you consider that possibility in consultation with
5 the DPP?
6 A. I don't believe I did.
7 Q. Were you conscious that the DPP may or may not have
8 considered that himself?
9 A. He may have. I don't know.
10 Q. If you had got a medical report which had said, for
11 example, "This child had a high temperature for some
12 weeks, had been treated with three different types of
13 antibiotics, and that this was the first suspected mumps
14 that the doctor had seen in quite some while", would
15 that have satisfied you?
16 A. I don't know. I can't say.
17 Q. So why didn't you ask for one?
18 A. We had asked for medical evidence. The only medical
19 evidence that I had been provided with was, in my view,
20 inadequate. I understood that the police had spoken to
21 the doctor. I understood that the doctor had provided
22 an initial statement, was asked to provide further
23 information, and the second statement was a result of
24 that request for further information. I had no reason
25 to believe there was anything beyond that.
79
1 THE CHAIRMAN: Can you help us? The defence were saying,
2 "We want to be satisfied the child is seriously ill"?
3 A. Yes.
4 THE CHAIRMAN: Would it have been appropriate in those
5 circumstances to ask the police, when they made their
6 enquiries, to focus on that point, that the child was
7 seriously ill? You didn't, you see.
8 A. I believe that the police were focusing -- they were
9 attempting to obtain information from the medical people
10 who had seen this child as to the nature of his illness.
11 THE CHAIRMAN: But they were not asked to focus on whether
12 the child was seriously ill.
13 A. No, I don't believe they were, but they were asked to
14 obtain medical evidence and I had no reason to go behind
15 the statements provided by the doctors.
16 MR UNDERWOOD: But you regarded them as totally inadequate?
17 A. I did regard them as inadequate, because they did not
18 bear out what Andrea had been telling us. That was why
19 we felt it was necessary to go to speak to her.
20 Q. Sorry. I am missing a link obviously.
21 A. Andrea -- sorry.
22 Q. These did not bear out what she told you. Surely the
23 logical answer to that is go and ask the doctor whether
24 what she told you was right?
25 A. Well, I understood the doctor had been spoken to by
80
1 police and asked to provide a statement. That was the
2 statement that was provided by the doctor.
3 Q. Did the DPP's officials tell you that?
4 A. That was the information I was provided. This was the
5 doctor's statement and this is the second statement that
6 the doctor has made. Then there was a third statement,
7 as I recall, from a different doctor, Dr Vlies.
8 Q. So your instructions were, "This is all you are going to
9 get from the GPs". Is that it?
10 A. I can't say those were my instructions. That would have
11 been my belief, certainly, but I don't think anybody
12 specifically said to me, "This is all we are going to
13 get". This is what I believed we were getting and all
14 that we were getting.
15 Q. The line of communication of that to you was via your
16 instructing solicitor, I take it?
17 A. Yes.
18 Q. Can we have a look at paragraph 11 of your statement,
19 please?
20 You say:
21 "I think we had received the statement of Dr [blank]
22 dated", that should be the 30th, I think, "December 20th
23 2003 by the time of the consultation. He said that he
24 had seen Andrea's child on 11th December 2003 at home
25 for an ear infection, but not on 19th December 2003.
81
1 This was totally inadequate for satisfying the court for
2 the reason for the adjournment, in that there was no
3 reference to 19th December 2003 ..."
4 You go on. That's something you told us a moment
5 ago as well. Was one of your reasons back then for
6 regarding these as totally inadequate the fact that
7 there was no reference to treatment on 19th December?
8 A. No, this statement is made subsequent to that with the
9 knowledge that I have now, if I can put it that way, or
10 certainly at the time that I was interviewed by the
11 Inquiry solicitor.
12 Q. The reason I ask you that is because this is entirely
13 consistent with something you volunteered about
14 five minutes ago.
15 Are you telling us you did not take into account, in
16 discarding these statements from the doctor, the fact
17 that there was no reference to 19th December?
18 A. No, I am not saying that. What I am saying is that
19 I was aware by the time that I saw the doctor's
20 statements that Andrea had also said she had seen
21 a doctor on 19th December.
22 Q. Again, I did ask you whether you looked at this with
23 some care.
24 A. Obviously not carefully enough.
25 Q. Well:
82
1 "This was totally inadequate as regards to
2 satisfying the court for the reason for the adjournment,
3 in that there was to reference to 19th December
4 2003 ..."
5 That is simply wrong, isn't it?
6 A. No.
7 Q. How could it possibly be an inadequacy in these
8 statements in regard to satisfying the court for the
9 reason for the adjournment that there was no reference
10 to 19th December?
11 A. We had been told she had seen the doctor over the
12 weekend, and there was no reference to that in the
13 doctor's statement.
14 Q. I am sorry. That's just not true. You weren't told
15 that. You didn't --
16 A. I was told that, with respect, Mr Underwood.
17 Q. Where is the note?
18 A. I have no note of that. I recall a conversation on the
19 morning at court. I remember being told by
20 Patricia Murphy that she had seen the doctor over the
21 weekend with the child.
22 Q. Well, if you want to look -- you can have an adjournment
23 to do it -- at Patricia Murphy's notes of the
24 conversation she had with Andrea McKee, you find that
25 just does not get in there.
83
1 A. I have not seen those.
2 Q. We have heard Patricia Murphy and she doesn't say that
3 either.
4 A. Very well. My recollection is that I was told she had
5 seen the doctor over the weekend. My recollection as
6 I sit here is that I was told that by Patricia Murphy.
7 My recollection is that I was told that at court, but
8 that may be incorrect.
9 Q. You see, what I am suggesting is this was a perfectly
10 straightforward adjournment on the basis --
11 A. No, it was definitely not a straightforward adjournment.
12 Q. So it didn't call for any particular measures like
13 getting a medical report?
14 A. It most certainly did.
15 Q. It called for a certificate, didn't it?
16 A. No, it required medical evidence.
17 Q. You wrote "certificate" in your note.
18 A. Yes, I did. That was, as I said, as a result of
19 something that was said by someone in court. Whether
20 that was said by the resident magistrate, whether it was
21 said by another counsel, I cannot, at this length of
22 remove, say.
23 Q. I suggest everybody got confused on your side after
24 that, because by the time the medical statements came
25 in, you had taken your eye off the ball of the health of
84
1 the child and put it on to the ball of whether she had
2 visited Pendine on the 19th, 20th.
3 A. No. That's not correct. We had given a reason to the
4 defence for her non-attendance. That reason had to be
5 investigated, because the defence were, frankly,
6 sceptical as to her reason for non-attendance, and I was
7 told that the defence were certainly amenable to
8 granting an adjournment if this child was as seriously
9 ill as they were being led to believe. They did not
10 believe that and they wanted proof.
11 Q. Okay. Let's look at paragraph 10, [81927]. You tell
12 us:
13 "On 9th January 2004, I had another consultation
14 with Andrea McKee at [address redacted] police station.
15 Ivor Morrison, Acting Detective Superintendent K and
16 Acting Detective Sergeant H were in attendance. I did
17 take a note of that consultation."
18 You give page numbers:
19 "This is the only written note that I made of any
20 consultation between myself and Andrea McKee."
21 A. That's not correct.
22 Q. You have told us that's wrong:
23 "The reason for this consultation was an issue over
24 her attendance at Pendine Park surgery, where she said
25 she had taken the child on the night of 19th December
85
1 2003."
2 So why are you having a consultation -- all of you,
3 as a group, going over to Wales to see this witness, not
4 about the illness of the child over the course of
5 December or on the 22nd, but whether she had gone to
6 Pendine -- unless you had put your eye on that ball?
7 A. As I had indicated, my statement is a synopsis of a very
8 lengthy event. We were going to [address redacted] to see
9 Andrea McKee because Andrea McKee, as I recall, would
10 not come to Northern Ireland very readily. We were
11 conveniencing her by going to [address redacted]. We had done
12 so -- this was the second occasion we had convenienced
13 her by going there.
14 The issue over the medical -- I mean, when I say
15 that the reason for this consultation was an issue over
16 attendance at Pendine Park surgery, that had become
17 an issue at that stage, but it wasn't the only reason
18 for the consultation. There was also a threatening
19 letter which had purported to have been received. There
20 was also the fact that we were not clear from the
21 medical evidence that she had given us the correct
22 information about her child's illness.
23 Q. Uh-huh. So you would like to revise that part of your
24 statement now, would you?
25 A. Obviously, as I have indicated, the statement is true,
86
1 but it is perhaps not complete.
2 Q. Then if we look at paragraph 12, please, on the next
3 page, [81928], you say there:
4 "I came away from that consultation with a very
5 different impression of Andrea McKee to the one I had
6 before. I had real concerns about her credibility from
7 that point on. Her attitude at that stage was that she
8 still wished to give evidence but on her terms. She
9 stated that she was a willing witness but did I not feel
10 that her terms could be met, that they were unrealistic.
11 I got the impression that she would have been quite
12 happy not to give evidence."
13 Is that accurate?
14 A. Yes.
15 Q. Is there anything more you would like to say about that?
16 A. Yes, in the sense that, when I first met Andrea, she --
17 the first consultation had a specific purpose. It was
18 essentially to see whether she came up to proof
19 regarding the statement she provided. I was quite
20 satisfied that did come up to proof.
21 I didn't have any great discussion with her beyond
22 what was the contents of her statement. I do recall --
23 I don't recall actually, but having seen my note of that
24 consultation, she made one comment about feeling sorry
25 for Robert Atkinson, which, again, I sort of felt added
87
1 to her plausibility.
2 This consultation was entirely different. I got the
3 distinct impression she was not being straight, that she
4 had not been to Pendine Park, but I was still willing to
5 give her the benefit of the doubt on that because we had
6 not completed, or the police had not completed, their
7 investigations into whether or not she had attended
8 Pendine Park.
9 I also felt that, reading over my note of that
10 consultation again, she expressed a willingness to
11 attend to give evidence, but it was predicated on
12 a number of factors, conditions, that she felt were
13 necessary for her to be able to give evidence; primarily
14 the fact that she and her family were safe. But then,
15 in the midst of all of that, she was saying things such
16 as that she couldn't move from [address redacted]. She was not
17 prepared really to bend to meet what would be required
18 to make her safe, if I can put it that way. Also, there
19 were a few --
20 THE CHAIRMAN: One suggestion was she should move house away
21 from [address redacted]?
22 A. Yes. She was unwilling to do that.
23 THE CHAIRMAN: Did you hold that against her?
24 A. No, I didn't hold that against her, but I felt
25 realistically, if this threat was real and serious and
88
1 she was to give evidence, then I couldn't see how she
2 could remain in [address redacted] and her location not be known to
3 whoever was making the threat if such a threat was real.
4 I didn't hold it against her at all.
5 THE CHAIRMAN: Yes.
6 MR UNDERWOOD: Can I just look at a couple of things here?
7 You tell us here you had real concerns about her
8 credibility from that point on?
9 A. Uh-huh.
10 Q. But is it your evidence that you, as it were, parked
11 your views about that because there were outstanding
12 investigations?
13 A. Yes.
14 Q. There were also outstanding investigations, weren't
15 there, about whether her safety could be secure?
16 A. Yes.
17 Q. Did you park your view about that as well?
18 A. I did in the sense that, you know, if her terms could be
19 met, then, you know -- yes, I parked my view about it.
20 Q. Can we look at page [33989], please?
21 THE CHAIRMAN: Just before you do, as I understand it,
22 another aspect of safety was her safety in
23 Northern Ireland.
24 A. I didn't think that was a difficulty frankly.
25 THE CHAIRMAN: No, but she wanted to be safe in
89
1 Northern Ireland. Is that right?
2 A. No. My understanding was that if -- she wanted to be
3 safe where she lived. If she could not be safe -- if
4 I can perhaps refer to my notes of the consultation, she
5 made some comment about -- let me just find it here.
6 MR UNDERWOOD: Page [33992] probably. [33993].
7 A. Yes. That's where she is spoken to.
8 Q. It starts at the bottom there and goes on --
9 A. Uh-huh.
10 Q. -- to [33994].
11 A. Yes.
12 Q. And [33995].
13 A. It is actually further on.
14 Q. [33996]:
15 "Asked if she would consider relocating to another
16 district away from North Wales."
17 A. Sorry. I am just scrolling through it. Yes:
18 "If I lived at a different address, there would be
19 no problem at all."
20 [33995], at the top of that:
21 "The fact that they know where I live worries me.
22 I was happy to go to court and give evidence because I)
23 felt safe."
24 So obviously there was no difficulty with her coming
25 to Northern Ireland to give evidence:
90
1 "It would be very hard to contemplating giving
2 evidence if I lived that address. If I lived at
3 a different address, there would be no problem at all.
4 I feel like a sitting duck at that address."
5 Q. Okay.
6 A. So it was the address that seemed to be the problem, but
7 she was not willing to consider moving anywhere than
8 within a few hundred yards, as far as I could see, of
9 where she was already living.
10 Q. Can we look at [33989] now, please? This is the
11 covering letter I think that you wrote enclosing those
12 notes to Mr Morrison. Can I just run through it quite
13 quickly?
14 A. Yes.
15 Q. It is dated 12th January 2004. You say:
16 "Further to our meeting with Andrea McKee in [address redacted]
17 on Friday, I now enclose typed notes prepared from my
18 handwritten notes taken at the time. I trust they make
19 sense!
20 "The impression which I formed at the meeting is
21 that, while it is clear that Mrs McKee states she
22 remains willing to give evidence, she wishes to do so on
23 terms which I doubt can be met.
24 "There is no doubt that she has taken the purported
25 threat contained in the letter received on December 23rd
91
1 seriously and feels that she could no longer contemplate
2 giving evidence and continue to live at her current
3 address. She is, however, unwilling to change her
4 lifestyle or consider relocating from the immediate area
5 in which she lives. Further, she has indicated
6 a willingness, albeit reluctant, to sever ties with her
7 one remaining contact in Northern Ireland,
8 Glenys Finnigan. One wonders just how realistic
9 a prospect that might be, particularly as it appears
10 Ms Finnigan has contact with other members of Ms McKee's
11 family.
12 "I understand that police will consider the issue of
13 Ms McKee's security and determine whether it is possible
14 to provide the requisite level of security in accordance
15 with her desire to continue to live in [address redacted]."
16 Then overleaf, 33990:
17 "Acting on the assumption that same will not be
18 possible, I consider that it would be wrong to expect
19 Mrs McKee to give evidence in those circumstances. As
20 she stated herself, 'Being safe is more important than
21 giving evidence'.
22
23 "I trust this is of some assistance. I look forward
24 to hearing from you in due course."
25 I want to go back to [33989], third paragraph:
92
1 "There is no doubt that she has taken the purported
2 threat contained in the letter received on December 23rd
3 seriously ..."
4 So did you believe her when she talked about the
5 letter?
6 A. In what sense? Did I believe she had received the
7 letter? Did I believe she considered it was genuine?
8 Q. Yes.
9 A. I must have done, yes.
10 Q. There is no reference in here, is there, to the part of
11 the consultation which your paragraph 11 tells us was
12 the entire point of it: namely, the visit to the doctor
13 over the weekend?
14 A. No. I didn't -- well, I don't accept that that was the
15 entire point of the consultation.
16 Q. I know. That's why I was careful to say that's what
17 paragraph 11 of your statement tells us.
18 A. Yes.
19 Q. Now, can we go back to paragraph 12 of your statement,
20 page [81928]? It says:
21 "I came away from that consultation with a very
22 different impression of Andrea McKee to the one I had
23 before. I had real concerns about her credibility from
24 that point on."
25 That's simply the opposite of what you were writing,
93
1 isn't it?
2 A. No, it isn't. If you actually look back at my letter,
3 first of all, if you look at the way I word the
4 paragraph that you read out about, "She states that she
5 is willing to give evidence".
6 Q. Forgive me. You have just told me that when you said:
7 "There is no doubt that she has taken the purported
8 threat contained in the letter received on December 23rd
9 seriously", you believed her on that.
10 You don't make any reference in the letter at all to
11 your belief or disbelief about her medical condition?
12 A. I don't believe that I did believe her. I parked it.
13 By the time I made my statement, I had come to
14 a conclusion that she was not being honest about that.
15 Q. That's the point I want to make. Now you think that.
16 You didn't think it at the time, did you?
17 A. No, I am not saying I didn't think it at the time.
18 Alarm bells were ringing at the time, but I was prepared
19 still to give Andrea McKee the benefit of the doubt,
20 because there were further investigations to be carried
21 out.
22 The letter at that stage was, as I recall, handed
23 over by [address redacted] police to the Northern Ireland police at
24 that consultation or in the building in which that
25 consultation took place. So the investigations had not
94
1 been carried out by the PSNI into the provenance of the
2 letter.
3 Q. You used the phrase in respect of this principal
4 prosecution witness that you were "prepared to give her
5 the benefit of the doubt". Why were you engaging in
6 giving her the benefit of any doubt?
7 A. It is a use of the vernacular at this stage. I had
8 parked my -- to use your expression, I had parked my
9 concerns.
10 Q. You had also parked your concerns about the security,
11 you told us.
12 A. In what sense?
13 Q. Well, told us you parked your concerns about security,
14 because that was going to be looked at by the police.
15 A. Yes.
16 Q. But you air those concerns in that letter at some
17 length. Why, if you had parked both of them, do you
18 concentrate on only one of them?
19 A. I am not quite sure I am following what you are asking
20 me, Mr Underwood.
21 Q. I am asking you why, if you are now telling us that you
22 had serious concerns about her credibility after that
23 consultation --
24 A. I wouldn't say the concerns were serious. I was
25 concerned. Alarm bells were starting to ring.
95
1 I wouldn't say they were serious concerns at that point.
2 At that point, I still believed we would be calling
3 Andrea McKee to give evidence.
4 Q. Were you of the same mind as Mr Morrison on this?
5 A. I believe so. I can't recall any contrary view
6 expressed.
7 Q. You travelled over together?
8 A. Yes.
9 Q. Travelled back together?
10 A. Yes.
11 Q. Talked about it presumably?
12 A. Presumably, yes. I can't recall now the nature of the
13 conversations. I do remember other things that we
14 talked about. They are totally irrelevant to the
15 Inquiry.
16 Q. We know -- let's have a look now at paragraph 17 of your
17 statement, page [81929]. You say:
18 "The issue of whether Andrea McKee went to
19 Pendine Park surgery on the night of 19th December 2003
20 was a wholly peripheral issue and not directly relevant
21 to the evidence of the prosecution of the Atkinsons.
22 However, having determined that she had lied on
23 a peripheral issue, her entire credibility was in
24 question and she could not be put forward as a witness
25 of truth."
96
1 [81930].
2 Now, a number of questions about that.
3 Were you conscious that the director, when he
4 eventually took the decision himself about whether this
5 prosecution should go ahead, appears to have remained of
6 the view that Andrea McKee was telling the truth about
7 the conspiracy?
8 A. I wasn't conscious of that, no.
9 Q. Did you have any discussions about that sort of area --
10 namely, the elision between lying on a peripheral issue
11 and lying on a core issue -- with anybody at the DPP's
12 office?
13 A. I don't think it was put in specific terms. I have some
14 recollection of some discussion at one of the
15 consultations with Mr Simpson and Mr Morrison in
16 Mr Morrison's office.
17 I have some recollection of explaining to the police
18 why, even though she could be telling the truth in
19 respect of the Atkinson side of things, her credibility
20 would be so damaged that we still could not put her
21 forward, or we could not continue to put her forward.
22 Q. Can you help us with the practice here? We know, of
23 course, that counsel see prosecution witnesses in this
24 jurisdiction, and they did so then. If they formed
25 a view about the credibility of a witness, what sort of
97
1 standard were they operating to? Were they saying,
2 "I am not going to put this witness forward as a witness
3 of truth because I don't believe her", or were they
4 saying, "I am not going to put this witness forward as
5 a witness of truth because nobody will believe her", or
6 what?
7 A. Am I talking generally here?
8 Q. Generally.
9 A. Generally, my view of a witness' truth is neither here
10 nor there. The question is really whether someone can
11 be demonstrated to have lied and in this particular case
12 we felt that she had demonstrably lied to us.
13 Q. Let's go back to the peripheral issue versus the core
14 issue then.
15 THE CHAIRMAN: Forgive me. If I have understood you
16 correctly, you have just formulated what in your mind is
17 the test of whether a witness can be put forward as
18 a witness worthy of belief.
19 A. I suppose really what I am saying here is it is not
20 a question of whether somebody is worthy of belief on
21 a particular issue, but whether or not their credibility
22 would be so damaged that there would then be no
23 reasonable prospect of conviction.
24 It is the directing test, I suppose, that would have
25 been at the forefront of my mind and always would be
98
1 when I am assessing a witness' credibility. Is that
2 witness credible? Are they capable of belief? Are they
3 likely to be damaged under cross-examination? How are
4 they likely to be damaged under cross-examination? Does
5 that all add up then to whether or not there is
6 a reasonable prospect of a conviction? That would be
7 the test that I would be applying in assessing that
8 witness' evidence essentially.
9 MR UNDERWOOD: Okay. Does it follow -- let's go down to the
10 specifics of this case -- that your concerns here about
11 her credibility were geared to just that, whether she
12 would, at a trial, be sufficiently convincing that there
13 was a reasonable prospect of success.
14 A. Absolutely, yes.
15 Q. So you were not concerned then that this was going to be
16 thrown out by the magistrate on the basis that he had
17 been lied to?
18 A. I know that the defence were certainly -- it wasn't
19 a major concern of mine. I know there was an issue with
20 regard to that and, I mean, I recollect and have seen in
21 the papers a letter which I think came from Mr Monteith,
22 who represented Mr Hanvey, indicating that I would have
23 to make a witness statement and Mr Morrison would have
24 to make a witness statement about the lies that had been
25 told to us by Andrea McKee, which would all have gone
99
1 into the mix at the committal.
2 I was under no illusion that certainly the defence
3 would try to get the matter thrown out at committal
4 stage. Whether or not that was realistic or not is
5 another matter.
6 Q. Well, it wasn't realistic, was it? Let's be fair.
7 A. I don't believe it was particularly, but I was looking,
8 I suppose, at the overall picture here and whether or
9 not we could get home on this prosecution.
10 MR UNDERWOOD: I understand. Thank you very much indeed.
11 As I say, other people may have some more.
12 THE CHAIRMAN: Can I just ask you: you spoke of her being
13 willing to give evidence, but it had to be on her terms.
14 A. Yes.
15 THE CHAIRMAN: You mentioned one, that she would be safe in
16 [address redacted].
17 A. Uh-huh.
18 THE CHAIRMAN: What other terms were there?
19 A. Well, the notes don't actually disclose that, but one of
20 the things -- one of the reasons that I was alarmed was
21 because of her demeanour. When it became clear that
22 police would, you know, look at whether or not she could
23 be moved, it is one of those wee pieces of evidence that
24 somebody says or something that somebody says that makes
25 you stop in your tracks and think.
100
1 One of the things she said was, "I wouldn't want to
2 live in a dump". It was the way she said that and the
3 circumstances in which she came to say that, that made
4 me think, "Is she after something here? Are her terms
5 such that -- is she trying to get something out of
6 this?" I suppose is really the impression I was left
7 with.
8 So it wasn't just the question of her being safe,
9 but what could Andrea get out of it for Andrea was the
10 impression I was being given.
11 THE CHAIRMAN: Did you ask her if that was what she was
12 after?
13 A. No, I didn't. I think it was really on reflection and
14 when I was typing up the notes to send to Mr Morrison
15 that that was really the impression that I formed.
16 THE CHAIRMAN: Very well. Thank you.
17 MR WOLFE: I have no questions, sir.
18 Questions by MR O'HARE
19 MR O'HARE: Ms Smith, you know who I am?
20 A. Yes, I do.
21 Q. I represent a lot of individual police officers in this
22 case.
23 Ms Smith, you were initially briefed to conduct the
24 preliminary inquiry into the case of Atkinson, Atkinson
25 and Hanvey?
101
1 A. Yes.
2 Q. In preparation for that you would have received the
3 depositions of all the witnesses that were to be called
4 at the trial in this case?
5 A. Well, yes, I would have received the committal papers,
6 yes.
7 Q. (Overspeaking) that might be adduced in due course or
8 something of that nature.
9 Now, you will obviously read all those depositions
10 prior to the committal proceedings. Is that correct?
11 A. I would read them, but in this particular instance
12 I would have concentrated on those witnesses I knew were
13 being called to give evidence at the next committal.
14 Q. Precisely, and it is the defence who requires the
15 attendance of witnesses at the next committal?
16 A. Yes.
17 Q. Sometimes the defence will require the attendance of
18 those witnesses for a variety of reasons.
19 A. Yes.
20 Q. One of which could be to see if the witness is actually
21 going to turn up and go into the witness box and give
22 evidence?
23 A. Certainly quite common in this jurisdiction.
24 Q. Or if the witness does be sworn and proceed to give
25 evidence, then he or she can be cross-examined with
102
1 a view to try to elicit inconsistency, as it were, for
2 use at a later date in the trial?
3 A. Yes.
4 Q. Now, am I correct in saying, and it was your view at the
5 time, that, having looked at all of the depositions that
6 were to be used in the trial of this case, Ms McKee was
7 the essential prosecution witness?
8 A. Undoubtedly.
9 Q. That was in relation to these charges of conspiracy?
10 A. Yes.
11 Q. Without her evidence the case simply couldn't proceed?
12 A. Yes. That's correct.
13 MR O'HARE: Thank you.
14 Questions from MR McGRORY
15 MR McGRORY: I have some questions, sir, if I may. Again,
16 no introductions are necessary.
17 A. No, Mr McGrory.
18 Q. Ms Smith. Would it be fair to say that when you
19 returned from [address redacted], you had a very different
20 impression of this witness than you had originally?
21 A. When I returned from [address redacted] on the second occasion in
22 January 2004? Yes.
23 Q. Sorry. On the second occasion, I meant. You obviously
24 voiced this changed impression to Mr Morrison.
25 A. I recall certainly voicing it at one of the subsequent
103
1 consultations.
2 Q. And to Mr Simpson?
3 A. Who would have been present at that consultation.
4 Q. These occasions would have been, of course, much prior
5 to Mr Simpson's consultation with her in March?
6 A. Not much prior. I believe one was certainly in
7 February. I can't recall the other date.
8 Q. But prior to?
9 A. Prior to.
10 Q. So Mr Simpson was well aware of the changed view that
11 you and Mr Morrison had of this witness?
12 A. Yes.
13 Q. Thank you.
14 Just going back to the occasion of the adjournment
15 on 22nd December, if I may --
16 A. Uh-huh.
17 Q. -- you deal with this at paragraph 9 of your statement,
18 which is page [81926]. I will just read it out:
19 "Andrea had said that she was unable to travel to
20 court that day because her son was ill with swollen
21 testicles and suspected mumps and she didn't feel that
22 she could leave him."
23 A. Uh-huh.
24 Q. "I advised the defence in the same terms and they agreed
25 that, if that was the case, then it was right to adjourn
104
1 the matter."
2 A. Yes.
3 Q. "The defence team was, however, sceptical about the
4 reason for non-attendance and agreed to the adjournment
5 on condition that some documentary proof ... was
6 provided on the next occasion."
7 Now, do you agree that in terms of Andrea McKee's
8 perception of the state of her child, that suspected
9 mumps was a perfectly reasonable thing for her to have
10 believed, in terms of the medical history?
11 A. I wouldn't have been aware of the medical history at
12 that time.
13 Q. No, but you are now?
14 A. I am now.
15 Q. And you were quickly after the adjournment. Isn't that
16 right?
17 A. Yes. Well, reasonably quickly, yes.
18 Q. In the sense that she was -- the child was seen twice
19 prior to the adjournment on 22nd December by a doctor --
20 A. Yes.
21 Q. -- and that mumps was raised as an issue.
22 A. Yes.
23 Q. Then, of course, the child was returned to the doctor on
24 the very day of the case, 22nd December.
25 A. Yes.
105
1 Q. So in terms --
2 A. However, can I just pause there, Mr McGrory, because
3 I believe that Patricia Murphy, when she spoke to her on
4 the morning, advised her that we would need medical
5 evidence. So the attendance at the doctor's on that
6 morning may well have been as a result of that
7 communication to Ms McKee.
8 Q. I have no doubt, but, of course, the doctor found that
9 the child was ill?
10 A. The child had an ear infection in both ears. Not mumps.
11 No swollen testes.
12 Q. What I am asking you about, Ms Smith, is Andrea McKee's
13 perception of how ill her child was.
14 A. I can't comment on her perception, Mr McGrory.
15 Q. But, as a mother, you will understand that if a young
16 boy, an infant boy, is suspected of having mumps, that's
17 something about which you would be very worried.
18 A. Yes.
19 Q. And you would be particularly anxious if you were being
20 asked to leave that child for a day and leave the
21 country?
22 A. I might be, Mr McGrory. Ms McKee was not particularly
23 anxious to leave her son to come to court in
24 Northern Ireland on 27th October after him having been
25 seen -- sorry -- after her having contacted the
106
1 out-of-hours surgery in [address redacted], and then, according to
2 her evidence to this Tribunal, taken him to the accident
3 and emergency in October 2003.
4 Q. And it is to her credit that she came?
5 A. Yes, she came on that occasion. Can I just say then
6 there seems to be a discrepancy between her coming on
7 that occasion, when her son was so ill that she took him
8 to Accident and Emergency, but not on this occasion.
9 Q. Would you rather she had not come then?
10 A. No, I am not saying that for one moment, Mr McGrory.
11 What I am saying is I was not aware of that at the time.
12 I am now from the papers that I have since seen and
13 I find that somewhat surprising.
14 Q. Well, certainly by December, there having been two
15 further occasions for the child to see a doctor and for
16 the prospect of mumps to be mooted by her and the
17 doctor, she had every good reason to be very worried on
18 the eve of 22nd December?
19 A. I can't say she had every good reason to be worried on
20 22nd December. She didn't certainly communicate that
21 other than by the phone call to Armagh police on the
22 Sunday.
23 Q. Yes, but what you told us is that you got the impression
24 that this was a more serious situation --
25 A. Yes.
107
1 Q. -- than you subsequently found it to be.
2 A. Yes.
3 Q. What I am suggesting to you is, as far as the mother and
4 the witness Andrea McKee is concerned, she was entitled
5 to believe this was a serious situation?
6 A. I can't comment. All I can say is the evidence showed
7 that this child was not as seriously ill as she led us
8 to believe.
9 THE CHAIRMAN: Do you accept mothers are sometimes rather
10 more anxious than perhaps the doctor would be?
11 A. Yes.
12 MR McGRORY: Thank you, sir. Then in terms of
13 paragraph 9 -- the court was informed that the mother's
14 belief was he had swollen testicles and suspected mumps.
15 A. I don't believe I was getting that from the mother.
16 I was getting that -- can I clarify that and put it in
17 clearer terms?
18 I was being told she had been told by the doctor it
19 was suspected mumps and that the child had swollen
20 testicles, and, in fact, the use of the word "orchitis",
21 which is a major complication of mumps, was being used.
22 Q. But in terms of the information that was given to the
23 magistrate --
24 A. Yes.
25 Q. -- I am suggesting to you that, leaving aside this
108
1 Pendine issue, the history of visits to the doctor are
2 not entirely -- are not in any way inconsistent with the
3 gist of what the magistrate was told?
4 A. When I was telling the magistrate, I wasn't aware of
5 what the history was. The impression that I was giving
6 the court, which was the impression that I was given,
7 was that this child had become seriously ill over the
8 weekend.
9 Q. You see, did you form the view that you had overstated
10 the case to the magistrate? Is that --
11 A. Not in terms of what I had been told. I stated what
12 I had been told. I don't believe I overstated it in
13 that sense, but when the medical evidence came to show
14 that the child had an ear infection with possibly mumps,
15 but no further complications and certainly nothing to
16 indicate the seriousness that had been conveyed to me
17 and which I had then relayed on to the defence counsel
18 and to the court, then ...
19 Q. So you were worried then that you were exposed, because
20 you had said something to the court that you did not
21 believe had been borne out rightly or wrongly by the
22 medical evidence?
23 A. "Exposed" is a somewhat emotive word. Certainly, if
24 I had misled the court, I would have returned to the
25 court to clarify the situation and explain why I had
109
1 misled the court, and I certainly wished to be sure that
2 I hadn't misled the court, which was one of the reasons
3 I wanted to speak to Andrea in [address redacted] -- not in
4 [address redacted], but to speak to her.
5 Q. Because, you see, one of the puzzles about this, I am
6 going to suggest to you, Ms Smith, is that this seems to
7 be a big fuss over an adjournment, in that a team of
8 prosecuting counsel, an assistant director within the
9 office of the Director of Public Prosecutions -- isn't
10 that what Mr Morrison was?
11 A. I believe so.
12 Q. And a team of police all head over to [address redacted] in the New
13 Year to investigate the reason for the adjournment?
14 A. As I have indicated, the trip to [address redacted] was not solely
15 to investigate the reason for the adjournment. Police
16 were travelling over to obtain the letter from [address redacted]
17 police that had been sent to Andrea McKee's address.
18 Q. Okay. Can I come to this issue now about the threat and
19 its bearing on all of this? If I could turn to
20 paragraph 12 of your statement, please, at [81928], you
21 said you came away from the consultation with a very
22 different impression of Andrea McKee to the one you had
23 before. This you have told us already:
24 "I had real concerns about her credibility from that
25 point on. Her attitude at that stage was that she still
110
1 wished to give evidence, but on her terms. She stated
2 that she was a willing witness, but I did not feel that
3 her terms could be met, that they were unrealistic.
4 I got the impression that she would have been quite
5 happy not to have to give evidence."
6 Now, already two parts to this paragraph, Ms Smith.
7 You said you came away with concerns and a different
8 impression. You said:
9 "I had concerns about her credibility ..."
10 A. Uh-huh.
11 Q. Now, you then go on in the same paragraph to link your
12 concerns about her credibility, I suggest, with this
13 issue about the terms upon which she wanted to give
14 evidence.
15 A. Well, can I just say that this -- my entire statement of
16 evidence is distilled from the interview I gave to the
17 Inquiry solicitor back in whenever it was.
18 Q. Yes, but your answers to the Chairman, I would suggest,
19 earlier, reveal that you do link concerns about her
20 credibility with this issue about her wanting to move
21 house and not being happy about living in a dump and all
22 of that?
23 A. I do now.
24 Q. Are you saying you didn't then?
25 A. I am saying that I had concerns about her credibility.
111
1 I believed at the time she wasn't telling me the truth
2 about having attended Pendine Park at that consultation.
3 I formed that impression, but I was parking that, as
4 Mr Underwood puts it, until further investigations were
5 carried out to see whether or not the grey-haired doctor
6 that she claimed to have seen could be located.
7 Q. With respect, I am asking you about this issue of her
8 terms for giving evidence in respect of the threat and
9 whether or not she could be relocated within [address redacted].
10 A. Yes.
11 Q. I am asking you to tell us what bearing that could
12 possibly have on her credibility.
13 A. It didn't have particular bearing on her credibility at
14 the time of the consultation, but with the benefit of
15 hindsight and what subsequently unfolded, I felt it had
16 a bearing.
17 Q. I understood you to have been saying earlier, Ms Smith,
18 that you felt then, in the context of making the
19 decision as to whether or not the case could proceed,
20 that this issue of where she would be located and her
21 attitude about that did have a bearing on her
22 credibility.
23 A. But not on 9th January 2004. Subsequently.
24 Q. That's fine, but tell us at what point subsequently.
25 A. I can't say. I mean, there were consultations
112
1 subsequently, as I have indicated, in discussion with
2 others you formulate your own views, but I was
3 concerned.
4 Q. So, in other words, there was concern voiced within that
5 close-knit circle of Mr Morrison, yourself, Mr Simpson
6 and senior police involved in this that her attitude
7 about where she would be located within [address redacted] and her
8 reluctance to move outside [address redacted] had a bearing on her
9 credibility?
10 A. No. I think by this stage I was questioning the
11 provenance of the letter. The letter -- the timing of
12 the letter was significant. If I can -- I mean, this is
13 pure speculation on my part, but if I can collide what
14 I believe happened in this case, and what I believe,
15 with hindsight, and with looking over everything, is
16 that Andrea McKee came to court on 27th October. She
17 was willing to give evidence. She -- then we fixed --
18 because of the circumstances obviously outside anybody's
19 control at that stage, certainly nothing to do with
20 Andrea McKee, we fixed a date of 22nd December. She had
21 a medical appointment on 23rd December, a very important
22 medical appointment, which would get her on to the
23 nursing course. It is referred to as a "medical
24 appointment for a job". It was not for a job. It was
25 for her nursing course, which was to start her new life.
113
1 She was not going to miss that medical appointment on
2 23rd December.
3 I believe she used her child as an excuse not to
4 come on 22nd December and her child's illness.
5 I believe she exaggerated that illness. I believe that
6 she then proceeded in this elaborate lie about
7 Pendine Park, which was demonstrated not to be true.
8 Then, into the mix, when one considers that, there
9 is this letter. The letter was -- the one thing we knew
10 about it was that it was sent on 19th October from
11 Belfast. Whether it was genuine or not, whether it had
12 arranged to be sent, I could not possibly say, but
13 I have my suspicions, and they are purely my opinions,
14 my suspicions and my speculation at this point in time
15 far removed from what I was thinking at the time.
16 THE CHAIRMAN: Was this view about the doubtfulness of the
17 letter taken into account by you in forming your own
18 view about her credibility?
19 A. No, it wasn't. This is something I have formulated
20 subsequently and certainly I probably would have been
21 thinking -- well, I was thinking along those lines at
22 the time I was interviewed by the Inquiry, but at the
23 time when I was formulating a view about whether or not
24 she would make a credible witness, my major concern was
25 the fact that she had told us a blatant lie about having
114
1 gone to Pendine Park. It just was not true. None of
2 the evidence supported her in that.
3 All the investigations which I understood to be very
4 thorough from police showed it to be a lie, and
5 I thought, "Why is she lying? Why is she doing this?"
6 I believe she was unwilling to come to court ultimately
7 and miss that appointment for the medical. At that
8 point, I thought, "This woman is prepared to tell lies
9 for her own ends."
10 MR McGRORY: Ms Smith, as you say in your own statement at
11 paragraph 6, [81925]:
12 "She had previously indicated that she would only be
13 available for one day."
14 A. Yes. Well, no. By the time --
15 Q. So she was only ever expecting to come to
16 Northern Ireland for one day?
17 A. No. On 27th October, she -- I had been told right at
18 the outset -- that was the reason why I went to [address redacted]
19 in the first place to consult with her, so as not to
20 waste time on 27th October in consulting with her at
21 court.
22 At that time, she was indicating she would only come
23 for one day, because it could not possibly interfere
24 with her course. When we were adjourning, there was
25 discussions with her at Craigavon Court about the fact
115
1 that it was going to be more than likely more than one
2 day and it was -- 22nd December was to convenience her.
3 At that stage, on 27th October, I don't believe she knew
4 she had this medical on the 23rd.
5 Q. No, but she had no reason to believe anything other than
6 that this whole thing would only take a day?
7 A. That's not correct.
8 Q. Well, you are telling me that's what she believed in
9 October.
10 A. No. She was telling us she would only come for one day.
11 Q. Yes, and that was all set up on that basis. Isn't that
12 right?
13 A. It was set up, but, I mean, I certainly know that I, at
14 some point, said to her that it was not going to take --
15 you know, we would hope to get her through her evidence
16 in one day, but it was a hope.
17 Q. Indeed, Constable Murphy has already told us that, as
18 far as she was concerned, it was only arranged for her
19 to come for one day on 22nd December.
20 A. Yes, because she insisted she would only come for one
21 day.
22 Q. What is the problem with that?
23 A. Mr McGrory, my experience, even here this morning, is
24 that evidence takes longer than anticipated. I was told
25 I would be in here at 10.30 this morning and it is now
116
1 12.50.
2 Q. Yes, but everything, every contact that Andrea McKee had
3 about giving evidence in October and in December led her
4 to believe that this was a one-day affair.
5 A. No, she would have known when she left Craigavon Court
6 House on 27th October that it was likely to last more
7 than one day.
8 THE CHAIRMAN: Her part in it, do you mean?
9 A. Yes.
10 THE CHAIRMAN: That she would be --
11 A. We told her that she was going -- she had to give her
12 evidence. It had to be typed. She was going to be
13 cross-examined by three, potentially three
14 cross-examiners for the two Atkinsons and Mr Hanvey and
15 that all of that would take time, and while we certainly
16 hoped we could try to facilitate her by getting it done
17 in one day, we could not guarantee that.
18 SIR JOHN EVANS: What travel arrangements were made for her
19 on this day?
20 A. I don't know.
21 SIR JOHN EVANS: You will not know. I am asking
22 Mr Underwood really.
23 MR UNDERWOOD: We got evidence from DC Murphy. It was a day
24 trip. Patricia Murphy went over the day before. She
25 stayed in a hotel, or was going to stay in a hotel, in
117
1 [address redacted], I think, bring Mrs McKee back for the 22nd,
2 take her home again on the 22nd, and then --
3 SIR JOHN EVANS: Presumably flights were booked for that
4 date?
5 MR UNDERWOOD: Flights were booked. We have the evidence
6 out and we have the evidence from Ms Murphy's notebook
7 that they had to be cancelled. So we have all the
8 details of hotels and flights.
9 REV. BARONESS KATHLEEN RICHARDSON: Had there been any
10 suspicion that it would last more than one day, it gives
11 even more credence to the fact that she would not be
12 willing to leave a sick child, doesn't it, if she had to
13 stay overnight?
14 A. Yes, it does, but, also, I believed -- I believe now
15 that the medical appointment was so important to her
16 that she was not going to miss it, and, in fact, that is
17 borne out by the comment she made to Ms Murphy whenever
18 asked if she could come the following day and she said,
19 "Definitely not".
20 THE CHAIRMAN: Do you criticise her for that?
21 A. Do I criticise her for wanting to --
22 THE CHAIRMAN: For not being prepared to miss the
23 appointment for her career.
24 A. No, I don't criticise her for that. I criticise her for
25 what I consider was her dishonesty in respect of that.
118
1 THE CHAIRMAN: Yes.
2 MR McGRORY: You see, isn't it the case, Ms Smith, that
3 after the second [address redacted] meeting in January you formed
4 a distinct dislike of this woman?
5 A. I can't say I formed a distinct dislike of her at all,
6 Mr McGrory. I disliked the fact that I was lied to.
7 Q. But not about Pendine?
8 A. I was lied to about Pendine.
9 Q. No, no. What I am saying to you is you are saying you
10 disliked the fact you were lied to about her genuineness
11 in respect of the threatening letter and her --
12 A. No.
13 Q. -- moving house.
14 A. No. I disliked the fact I was lied to by a witness who
15 persisted in that lie effectively.
16 Q. But, you see, the Pendine issue was not resolved when
17 you left [address redacted].
18 A. No, and I have said that I had parked my concerns, but
19 I certainly did not form a dislike to her.
20 Q. But you had formed a very poor impression of her?
21 A. I had formed a totally different impression to the
22 impression that I had formed on the first occasion,
23 because I did not believe she was telling me the truth.
24 Q. Yes. Well, if you had parked your concerns about
25 Pendine, then your different impression was formed by
119
1 other issues?
2 A. No, it was -- my impression was she was not telling me
3 the truth. It was not a question of liking her or
4 disliking her. The impression I formed was that she was
5 not credible, because she was lying to me.
6 Q. But I thought you had parked the Pendine issue and you
7 were only concerned at this point with these other
8 issues about her moving house and the threat and the
9 medical appointment and all this sort of thing?
10 A. No, no, no. I have said this is my view now, sitting
11 here today. What I considered on 9th January 2004 was
12 that Ms McKee was not being honest with me when she was
13 talking about the Pendine Park issue, but I was willing
14 to see what the investigations -- I was hoping,
15 I suppose, that the investigations would prove me wrong
16 and that she had not lied to me, but the impression
17 I was given by her was that she was lying.
18 Q. Well, I have to suggest to you on the issue of her
19 credibility, Ms Smith, that other factors that have no
20 real bearing on credibility were allowed to influence
21 your personal view.
22 A. No, I dispute that. I have since formed a view, given
23 all that has subsequently happened, but not at that
24 time, no.
25 Q. In terms of the adjournment, Mr Monteith and others were
120
1 unhappy on 22nd December?
2 A. They were sceptical about the reason for her
3 non-attendance.
4 Q. And they were kicking up a bit of a fuss, that they
5 wanted this documented?
6 A. Mr Monteith always kicks up a bit of a fuss, in my
7 experience, Mr McGrory.
8 Q. You said you had -- had you personally some discussions
9 with defence representatives?
10 A. Yes.
11 Q. And that you had concerns that what you had told the
12 defence would be borne out?
13 A. I had no concerns that there would be any difficulty.
14 The concerns came later when I received the medical
15 statements.
16 Q. Sorry. I will rephrase that. Having committed
17 yourselves in your discussions with the defence on the
18 day of the adjournment, as a professional, you would be
19 concerned that you would be able to stand over what you
20 had said --
21 A. Naturally.
22 Q. -- in court? Could it be you may have overstated the
23 situation in terms of the precise reasons for the
24 adjournment to the defence --
25 A. No, I did not.
121
1 Q. -- on 22nd December?
2 A. I don't believe I did. I relayed to them what I was
3 told and we were all, including the defence counsel,
4 sympathetic to Mrs McKee as a mother who had a very sick
5 child.
6 MR McGRORY: Thank you very much.
7 A. Thank you.
8 THE CHAIRMAN: Can I just follow one thing? By the time you
9 had any dealings with Mrs McKee, she was trying to
10 establish herself in a new career?
11 A. Yes.
12 THE CHAIRMAN: And she had, in respect of this, an important
13 appointment to attend on the 23rd?
14 A. Yes.
15 THE CHAIRMAN: She had made it clear, had she, that she
16 could not be in Northern Ireland on the 23rd?
17 A. We were unaware that she had this appointment on
18 the 23rd until subsequently. I believe it came out --
19 how it came about was she said something -- she said
20 something about the letter arriving on the 23rd and it
21 might have arrived that morning, but she only found it
22 when she came back and she had had -- something else
23 that was very strange -- she had to shake the curtain
24 and it was there with a Christmas card, but it might
25 have been delivered that morning of the 23rd.
122
1 Whenever police then investigating this had asked
2 her subsequently about where she was on the 23rd, it
3 transpired that she had been attending at a medical
4 appointment for her nursing course.
5 THE CHAIRMAN: But the appointment for her to come to
6 Northern Ireland on the 22nd was, you knew,
7 an appointment which, while you might hope it would be
8 concluded in the day, could go over until the following
9 day?
10 A. Yes.
11 THE CHAIRMAN: Did Andrea McKee understand that?
12 A. I believe she did understand that, because I --
13 certainly, on the 27th, when she did turn up and we were
14 arranging the dates, we were arranging a block of four
15 dates, not just for her evidence, but for the other
16 witnesses who were to be called at the next committal,
17 but there were discussions, with her present, about the
18 fact that, while we certainly would do everything we
19 could to facilitate her giving her evidence in one day,
20 it was possible it might run into the next.
21 THE CHAIRMAN: Thank you.
22 MR McGRORY: There is one matter arising, sir.
23 THE CHAIRMAN: Yes.
24 Further questions from MR McGRORY
25 MR McGRORY: It is not unheard of, of course, to have part
123
1 heard hearings?
2 A. No.
3 Q. Had her evidence not been completed and she really
4 needed to get back for a medical the next day,
5 an application could have been made to the court to
6 continue her evidence on another day?
7 A. Yes, it would, but the decision had been taken that this
8 case turned on the evidence of Andrea McKee, and that,
9 really, while -- we would have been reluctant to take
10 other evidence until she had concluded her evidence.
11 This was a case where these dates were identified in
12 October to suit all of the parties concerned. So it
13 would not have been an easy adjournment to obtain,
14 Mr McGrory. An application could have been made, but
15 I wouldn't have been confident in getting it.
16 MR McGRORY: Okay. Thank you. Mr Mallon?
17 MR MALLON: Mr Chairman, it is 1 o'clock.
18 THE CHAIRMAN: We will adjourn to 2 o'clock then.
19 MR UNDERWOOD: May I just invite some general time estimates
20 on this because I have two witnesses who, as I say, have
21 flown in. I want to be very careful about keeping them
22 waiting.
23 THE CHAIRMAN: How long will you be1.
24 MR McCOMB: I have no questions.
25 MR MALLON: I will only be about ten or fifteen minutes.
124
1 MR EMMERSON: Fifteen minutes.
2 MR DALY: Ten minutes.
3 MR UNDERWOOD: I wonder if people could restrain themselves,
4 all together, to half an hour? Then I can be satisfied
5 my other two witnesses can be heard.
6 THE CHAIRMAN: I know Sir Ronnie will have come across the
7 seas to get here.
8 MR UNDERWOOD: He has come from Saudi Arabia, and
9 Mr Mahaffey came from England.
10 THE CHAIRMAN: I am just wondering -- I know it would mean
11 making Ms Smith wait -- whether you would want to
12 interpose Sir Ronnie.
13 MR UNDERWOOD: I think he might take a while. Mr Mahaffey
14 will be quick. I am satisfied we will get through both
15 of them in about two and a half hours.
16 MR SMITH: If it is of any assistance, I am prepared to sit
17 on, if it conveniences the Tribunal.
18 THE CHAIRMAN: Thank you very much. 2 o'clock.
19 (1.00 pm)
20 (The luncheon adjournment)
21 (2.00 pm)
22 Questions from MR MALLON
23 MR MALLON: I don't think I need any introduction --
24 A. None at all, Mr Mallon.
25 Q. -- but I appear on behalf of the Atkinsons.
125
1 If I could take you, please, to page [59788]. That
2 is the witness we call P29, Murphy. She was the woman
3 who informed you in court of the illness of the child.
4 A. Yes.
5 Q. Could I take you seven lines down that, please, from the
6 start:
7 "At about 10.30 am I spoke to Andrea and she stated
8 that her son had mumps and orchitis, which she explained
9 was swelling of the testicles."
10 She went on:
11 "She further stated that there was a fear the child
12 could have a fit due to his high temperature."
13 Were you ever given an explanation for that
14 potential fit and that potential high temperature?
15 A. From whom, Mr Mallon?
16 Q. From anyone, but particularly from Andrea McKee.
17 A. Erm, no.
18 Q. Can I take you then to the medical evidence from
19 Dr Baker at page [34042]. That seems to indicate, if
20 I can take you to the third line down, thank you:
21 "I confirm that on 1st December 2003 the child was
22 brought to me when I diagnosed an ear infection and the
23 possibility of mumps as well."
24 Then on 22nd December, when an ear infection in both
25 ears was again diagnosed, there does not appear to be
126
1 any mention of mumps.
2 A. No, there wasn't. From recollection of the statement, I
3 think it was from a Dr Vlies only referred to ear
4 infection in both ears. I'd have to see that document,
5 but I think that's right.
6 Q. In relation to the potential for a fit that was
7 described by the police officer to you, do you remember
8 conveying that to the court as well.
9 A. I honestly can't remember. I do remember the distinct
10 impression I had was that the child was very seriously
11 ill.
12 Q. Do you think that might have been based on the fit as
13 opposed to mumps?
14 A. Mumps?
15 Q. The potential -- the high temperature and the fitting?
16 A. From recollection, it was the swollen testes that led me
17 to believe that this was a complication of mumps --
18 Q. Yes.
19 A. -- and therefore was potentially very serious.
20 Certainly I do remember talk of a very high temperature.
21 I note from documents that I've seen subsequent, which I
22 haven't brought in, but there was a chronology, I
23 believe, of Mr Morrison's, which referred to the
24 possibility of fits. So I can only conclude that I
25 would have been told that at the time also.
127
1 Q. That was the information that was conveyed to the
2 magistrate as well as the defence?
3 A. It may well have been.
4 Q. Yes.
5 A. I can't honestly remember at this remove what detailed
6 information I gave to the court.
7 Q. When the case was listed for hearing on 22nd December,
8 do you remember whether it was also listed for the
9 23rd and for the 24th, right up to Christmas Eve, in
10 fact?
11 A. Yes.
12 Q. It was envisaged to take all of that time?
13 A. I think, in fact, there was a fourth day set aside for
14 it.
15 Q. Yes, afterwards?
16 A. After Christmas.
17 Q. Yes, after Christmas.
18 Now in relation to your decision to indicate to the
19 court on the 19th that the case was being withdrawn --
20 A. It was not my decision to indicate to the court,
21 Mr Mallon.
22 Q. You had to convey that decision. The decision you
23 conveyed, that was not your decision?
24 A. No.
25 Q. During the period between 22nd December and 19th March,
128
1 when that decision was conveyed, at any time was the
2 information on Pendine conveyed to the defence?
3 A. I don't know. I doubt it.
4 MR MALLON: Thank you.
5 Questions from MR EMMERSON
6 MR EMMERSON: Ms Smith, I am going to ask you some questions
7 on behalf of the Director of Public Prosecutions.
8 First of all, how long have you been a member of the
9 Bar in Northern Ireland?
10 A. 24 years.
11 Q. For how long have you been nominated as Crown counsel?
12 A. By "nominated", how long have I been prosecuting?
13 Q. Yes.
14 A. I have been prosecuting and taking instruction from the
15 DPP regularly since about 1990, I believe, and I have
16 appeared in the Crown Court from about 1999/2000, but in
17 regular -- to the exclusion of other courts, essentially
18 from about 2002.
19 Q. Thank you. During that time, can you give us a sense of
20 how much experience you would have had of assessing
21 witness credibility in consultations?
22 A. I would consider that it was part and parcel of my
23 practice that it was always something that one did.
24 Q. Is it something you would do in every case?
25 A. If it was required. You know, obviously some witnesses,
129
1 their credibility is unimpeachable, and it would not be
2 necessary to assess whether -- I mean, some cases do not
3 go to the credibility of a witness, they depend on
4 forensic evidence or other extraneous evidence rather
5 than the credibility of a witness. So I would not have
6 to necessarily assess a witness' credibility in every
7 case.
8 Q. Now, you say in your witness statement that you agreed
9 with Mr Simpson's assessment that the apparent untruths
10 that Andrea McKee had told about her attendance at the
11 Pendine out-of-hours clinic cast such doubt on her
12 credibility on the central issues of the case that she
13 could no longer be advanced as a witness. Is that
14 right?
15 A. Yes.
16 Q. Is that a view which you would still adhere to today?
17 A. Absolutely. In fact, if anything, I am more of that
18 view, having seen some documentation which would not
19 have been available to me then, and is now.
20 Q. Can I ask you just to look at one or two documents as we
21 go through?
22 First of all, could we look, please, at [33911]?
23 Can we look at paragraphs 16 and 17, please? I just
24 want to ask you, first of all, to clarify whether you
25 considered these to be an accurate reflection of what is
130
1 recorded there and, secondly, just one or two points of
2 clarification.
3 These --
4 A. Sorry. I didn't recall that I actually have recorded
5 there about the child -- possibly the child having a fit
6 due to the high temperature.
7 Q. This is the document you were referring to a moment ago
8 in answer to questions from Mr Mallon.
9 A. Oh, right. Yes.
10 Q. This is an extract from Mr Morrison's summary of events.
11 A. Yes. Okay.
12 Q. "On Sunday morning, 21st December 2003, Andrea Jones
13 contacted PSNI and told them that she would be unable to
14 attend court on Monday, the 22nd, because her son was
15 ill. At about 10.30 am DC Murphy contacted her. She
16 stated that her son had mumps and swollen testicles and
17 that there was a fear that the child could have a fit
18 due to his high temperature."
19 First of all, is that the information that was
20 conveyed to you?
21 A. I believe so, yes.
22 Q. The following paragraph:
23 "On 22nd December, all legal representatives
24 gathered at Craigavon Magistrates' Court where [the
25 magistrate] was due to sit for the committal
131
1 proceedings. The information about the child's illness
2 was given verbally to the court by prosecuting counsel,
3 Christine Smith."
4 Would you, therefore, if we can pause there, have
5 given to the court the information that had been given
6 to you?
7 A. Yes.
8 Q. That would include mumps, swollen testicles and a fear
9 of fitting?
10 A. Yes. I don't recall what I actually said at this
11 remove, but I would have told the court exactly what
12 I had been told.
13 Q. Yes. Thank you:
14 "It was agreed by the defence that if it was the
15 case that Andrea McKee was unable to travel because of
16 her child's sickness, the court should grant
17 an adjournment, but, as it was not possible at that time
18 for the prosecution to provide any documentary
19 confirmation of the child's condition, the adjournment
20 should be conditional upon the Crown producing
21 satisfactory medical evidence at a later date. The case
22 was then fixed to be mentioned again in early
23 January 2004 and, if all was in order, it was agreed
24 that the 8th March would be fixed for the resumption of
25 the committal proper."
132
1 I want to ask you about those words "conditional"
2 and the apparent condition in the final sentence that
3 the date of 8th March would be the date for resumption
4 of the committal if the medical evidence was in order.
5 Can you help us with your understanding? First of
6 all, does that accurately record what you understood to
7 have taken place?
8 A. Yes, pretty much. The defence, as I say, were very
9 sceptical. They were sympathetic to the plight of
10 a mother whose son was seriously ill. They were willing
11 to consent to the adjournment application on condition
12 we provided them with medical evidence. That was made
13 clear to the court and, as I understood it, the
14 magistrate, who I believe was Mr McKibbin, indicated
15 that he would grant the adjournment but we would have to
16 provide the medical evidence for that adjournment, and
17 that would be reviewed at a very short period of time
18 thereafter. From perusal of the papers, I think it
19 might have been 2nd January, just shortly after the
20 holiday.
21 So we were supposed to have some documentary proof
22 by 2nd January to support our application for the
23 adjournment.
24 Q. That much I think is clear.
25 A. Yes.
133
1 Q. It was documentary material that was to be produced at
2 a hearing for mention in the court itself?
3 A. Yes.
4 Q. You were asked by Mr Underwood whether you had a clear
5 understanding of what would happen if satisfactory
6 medical evidence could not be produced, and I think you
7 said at that stage your thinking was that it was likely
8 that it would be produced.
9 A. I had no reason to believe that there wouldn't be
10 satisfactory medical evidence. I had no reason, at that
11 stage, to disbelieve what I was being told.
12 Q. I mean, I just want to be clear, because there are
13 various possibilities, and if you can't now recall which
14 of them is accurate, then obviously please say so, but
15 one possibility here is that the magistrate only granted
16 the adjournment to 8th March on condition that he was
17 satisfied by the medical evidence supplied; in other
18 words, that the adjournment was retrospectively invalid
19 if the material was not forthcoming.
20 Another possibility was that the matter was put over
21 to 2nd January, simply to review the position in the
22 light of the medical evidence and to report back to the
23 court.
24 Do you have any clear recollection one way or the
25 other?
134
1 A. I think it was more likely the latter. I can't say
2 I have a clear recollection, but I was left under no
3 illusion that we needed documentary proof of what we
4 told the court.
5 THE CHAIRMAN: I am not clear, Mr Emmerson, what, in
6 practical terms, an adjournment being decided to be
7 "retrospectively invalid" means.
8 MR EMMERSON: It might mean, I suppose, in a case in which
9 it is made conditional upon the production of
10 a particular document, if the document is not produced,
11 then the further date for committal would be vacated.
12 THE CHAIRMAN: And?
13 MR EMMERSON: Well, the consequences thereafter to be worked
14 out.
15 THE CHAIRMAN: No. The magistrate has no power, has he,
16 just to dismiss a case because he is not satisfied that
17 he was given accurate information about the need for
18 an adjournment?
19 If you are going to say that, I shall need some
20 authority for that proposition.
21 MR EMMERSON: I am not in a position to suggest that would
22 be a lawful course, nor, in the light of this witness'
23 evidence, am I in a position to suggest that was, in
24 fact, the course that was taken.
25 The word "conditional" has been used in the
135
1 memorandum. It is the question of what is the proper
2 inference to be drawn from that. One would expect, as
3 I think you are indicating sir, that the likely course
4 would be that the matter would come back before the
5 court with the consequences thereafter to be determined.
6 A. Might I interrupt, Mr Chairman? If you read it, it
7 actually says:
8 "It was agreed by the defence that if it was the
9 case that the Andrea McKee was unable to travel because
10 of her child's sickness, the court should grant
11 an adjournment, but, as it was not possible at that time
12 for the prosecution to provide any documentary
13 confirmation of the child's condition, the adjournment
14 should be conditional ..."
15 So it was the defence who were seeking to make the
16 adjournment conditional rather than the court.
17 THE CHAIRMAN: I don't think the defence have any power to
18 ask for that and I don't think the magistrate has any
19 power in effect to say, "This is an abuse of the process
20 of the court. The case must stop". I think that lies
21 outside a magistrate's powers.
22 MR EMMERSON: One does sometimes encounter cases where
23 a magistrate would refuse to grant the necessary
24 adjournment to enable a witness to attend.
25 THE CHAIRMAN: That's a different matter. He is not
136
1 refusing to hear the case.
2 MR EMMERSON: He is refusing to adjourn it to enable the
3 prosecution to adduce the witness.
4 THE CHAIRMAN: That may be, but he is still hearing whatever
5 case is offered. It may be that no case can be offered.
6 MR EMMERSON: Exactly.
7 THE CHAIRMAN: That's an entirely different matter from the
8 magistrate saying, "I see everybody is here today. Too
9 bad. The case is not going to go ahead".
10 I don't think he has any power to do that at all.
11 As I say, if I am wrong about that, you will be able to
12 cite some authority.
13 MR EMMERSON: I will certainly look into the matter. As it
14 stands, it doesn't appear to be a live issue on the
15 evidence in the way in which the matter has been put,
16 but we will see the way the rest of the evidence
17 unfolds.
18 THE CHAIRMAN: There is, of course, all the difference
19 between the defence seeking to make a condition and the
20 magistrate ruling.
21 MR EMMERSON: Although there does not seem to be any doubt
22 at all that the magistrate did adjourn it to 2nd January
23 for a further hearing for the material to be produced to
24 the court.
25 THE CHAIRMAN: Certainly, and he has every power to do that.
137
1 MR EMMERSON: It was put to you by Mr Underwood that during
2 the course of the 9th January consultation, you had in
3 effect taken your eye off the ball of the child's
4 general health and the issues which had been the basis
5 for the adjournment and had become focused exclusively
6 on the truth or otherwise of the account that
7 Andrea McKee had visited the Pendine out-of-hours
8 surgery on the weekend before the adjournment.
9
10 Could I ask you just to look briefly at one extract
11 of your notes of the consultation at page [33991]? If
12 we look really at the first half of the page, taking it
13 very shortly, did you discuss with Andrea McKee in
14 detail the progress of the child's illness from before
15 and at the start of December?
16 A. Yes, I did.
17 Q. The nature of the illness throughout and the medical
18 treatment that the child had had?
19 A. Yes.
20 Q. So were you indeed, at that stage, looking at the
21 child's health as a whole?
22 A. Yes, I was looking at the health -- at the child's
23 health as a whole, because the medical evidence that
24 I had been provided with certainly did not give me
25 sufficient detail, and that's why one of the reasons we
138
1 were speaking to Andrea was to get that detail.
2 Q. Thank you. You were shown your own letter to
3 Mr Morrison enclosing these notes?
4 A. Uh-huh.
5 Q. Mr Underwood put to you that the letter was focused
6 exclusively on witness protection issues and that there
7 was no express mention in the letter of the doubts that
8 you say that you already held about the credibility and
9 truthfulness of Andrea McKee?
10 A. That's correct, yes.
11 Q. You were asked whether on the journey back from [address redacted]
12 there had been discussions with Mr Morrison and whether
13 you had shared with Mr Morrison your concerns about
14 Andrea McKee's credibility?
15 A. I honestly don't remember. I may have done, but at this
16 remove, I don't remember. I certainly remember sharing
17 them with those present at consultation in Mr Morrison's
18 office subsequently.
19 Q. It may be we can get some assistance if we look at
20 [33984]. This was the letter Mr Morrison wrote the next
21 day, that's the day after you wrote to him with your
22 notes of the consultation.
23 A. Yes.
24 Q. This is a letter that Mr Morrison is writing to
25 Mr Simpson:
139
1 "You considered the police file in this case and
2 directed proofs for committal proceedings some
3 considerable time ago and I have from time to time kept
4 you aware of developments. I understand that
5 Christine Smith has passed on to you a copy of her notes
6 on the meeting at [address redacted] police station on 9th January
7 2004 with Andrea McKee."
8 He then encloses the relevant summary of events
9 document and says:
10 "Police at the consultation will provide all the
11 facts and information known to them with a view to it
12 being decided", and then this, "whether Andrea can now
13 be considered a credible witness or a witness who can
14 still be requested to come to give evidence in view of
15 the circumstances of the alleged threatening letter and
16 her probable unwillingness to effectively become part of
17 a witness protection scheme."
18 Do you see that?
19 A. Yes.
20 Q. So it appears that at least so far as Mr Morrison was
21 concerned, the day after receiving your consultation
22 notes for 9th January consultation, the issue of
23 credibility of Andrea McKee was being raised in
24 correspondence with Mr Simpson. Do you see that?
25 A. Yes.
140
1 Q. Does that assist you in any way in your recollection as
2 to whether or not you had discussed that with
3 Mr Morrison at the time?
4 A. I may well have discussed it with him on the telephone.
5 We would have had telephone conversations with me
6 providing him with the typed notes, and I am not sure.
7 I may have faxed them through to him. I really can't
8 remember, but I don't actually remember a specific
9 conversation with him, but I would be most surprised if
10 we hadn't had some discussion about it, but one of the
11 reasons that we were consulting in [address redacted] was because,
12 by the time we went to [address redacted], we knew that there was
13 an issue over Pendine Park, and she was being asked
14 about that specifically with a view to ascertaining how
15 credible she was on this issue about having gone to
16 Pendine Park.
17 So there was already an issue about her credibility
18 at that time.
19 Q. Of course, it was in the 9th January consultation that
20 she told you in terms that she had gone into the
21 consulting room --
22 A. Oh, yes.
23 Q. -- with the child and a grey-haired male doctor and had
24 seen the doctor palpate the child --
25 A. Yes.
141
1 Q. -- in order to examine his neck.
2 A. Yes. Absolutely. The notes that I have made are
3 obviously -- you know, they read as they were written,
4 but, you know, they are sketchy notes of what she was
5 saying. It was not a verbatim account of what she said
6 and they have to be taken in the context of her
7 demeanour, but I was under no illusion that she had gone
8 into that room and been present when the child was
9 examined by the grey-haired doctor.
10 Q. You obviously knew by the time of that consultation that
11 attempts which had been made to verify her attendance
12 had so far proved unsuccessful.
13 A. Yes.
14 Q. But you didn't yet know that the description that she
15 had given of a grey-haired male doctor was one which
16 could not match the description of any of the doctors
17 who had been on duty.
18 A. No. In fact, she was specifically asked to describe the
19 doctor in an attempt to identify which doctor it might
20 have been in the practice that she had seen.
21 Q. So at that time, when forming your view -- and you were
22 asked by Mr Underwood: did you park the question of
23 credibility? I mean, is it reasonable to say you were
24 suspending judgment, but you had doubts?
25 A. I think that's right, yes.
142
1 Q. Of course, did you subsequently learn that when that
2 inconsistency about the grey-haired doctor was put to
3 her in consultation by Mr Simpson, she claimed that she
4 never went into the consulting room but remained in the
5 waiting room outside?
6 A. Yes. I remember actually having a conversation on one
7 of the landings in the Bar library with Mr Simpson
8 subsequent to him consulting with her, and I remember
9 him being -- you know, I asked what had gone on in the
10 consultation room. He said, "Didn't she tell you she
11 went into a room with a grey-haired doctor?" I said,
12 "Absolutely". He said "Well, she told me something
13 different".
14 Q. There is no doubt in your mind that that is what she
15 said to you at the time?
16 A. No doubt whatsoever.
17 MR EMMERSON: Thank you.
18 REV. BARONESS KATHLEEN RICHARDSON: Can I just ask what
19 happened on 2nd January? Was any information given to
20 the court at that point?
21 A. I am not sure there was any information given to the
22 court. From recollection, Mr Morrison would have been
23 in contact with the solicitors for the Atkinsons and
24 Mr Hanvey and advised them that we hadn't received all
25 of the information we were seeking and would have agreed
143
1 for an adjournment, you know -- the defence were willing
2 to give us more time essentially.
3 Whether Mr Morrison actually went to court and
4 mentioned that to the court himself, I am not sure, or
5 whether whoever was prosecuting in the Magistrates'
6 Court that day informed the court, I really couldn't
7 say, but I certainly did not attend on that occasion,
8 and I think between then and the ultimate withdrawal of
9 the prosecution there were a few mentions in court.
10 Certainly one of them was by Mr Morrison and I think
11 there was a note of that where Mr Monteith said that
12 Mrs McKee said "blatant lie", and "utter lie" to us.
13 Questions from MR DALY
14 MR DALY: I appear, Ms Smith, on behalf of Andrea McKee.
15 The norm, if you like, the rule of thumb, in relation to
16 committal proceedings is that cases are returned for
17 trial. Isn't that right?
18 A. Yes.
19 Q. Really, it would be very much the exception that doesn't
20 get returned?
21 A. It's -- yes.
22 Q. Can you think of any?
23 A. Yes.
24 Q. Could you count them on one hand --
25 A. Probably.
144
1 Q. -- throughout 24 years?
2 A. Those would be only the ones in my experience, Mr Daly.
3 There may be more in other people's experience, but
4 I can only comment on my own experience.
5 Q. Convicted murderers, convicted rapists have been put
6 forward as reliable witnesses, haven't they?
7 A. Not by me.
8 Q. But in your experience?
9 A. Not in my experience, no.
10 Q. Well, with your experience and knowledge of courts in
11 this jurisdiction?
12 A. I am sure that's correct. I have never knowingly put
13 forward a convicted murderer or rapist as a witness.
14 Q. People who have committed heinous crimes have been
15 relied on successfully in prosecutions?
16 A. I am sure that's right.
17 Q. People with hideous criminal records have been relied
18 upon successfully?
19 A. Yes. Is that a question?
20 Q. It is a question, yes.
21 A. I am sure that's correct. I don't know personally of
22 any case. I couldn't name one. I have not been
23 involved in one.
24 Q. You would have been aware of the supergrass trials in
25 this jurisdiction, wouldn't you?
145
1 A. Yes.
2 Q. Andrea McKee had no blemish on her character other than
3 this conviction at Craigavon Court. Isn't that right?
4 A. I can't say that, Mr Daly. I don't know.
5 THE CHAIRMAN: You made your assessment without knowing
6 what, if any, previous convictions she had?
7 A. If we are talking about previous convictions, then
8 I don't believe she had any previous convictions, save
9 for this one. To say she had no blemish on her
10 character I think is --
11 MR DALY: She had no criminal antecedents?
12 A. Not that I am aware of.
13 Q. It was a fairly spineless decision not to proceed?
14 A. Is that a comment, Mr Daly?
15 THE CHAIRMAN: It is a question.
16 A. No, I wouldn't agree with that.
17 MR DALY: There was no appetite for this prosecution and it
18 was a soft decision to withdraw it?
19 A. I absolutely disagree with that, Mr Daly.
20 Q. You were counsel instructed at the committal, were you
21 not?
22 A. I was, yes.
23 Q. Would you have been keen to get the committal home?
24 A. Yes.
25 Q. You would?
146
1 A. Yes.
2 Q. Would you have regarded that as a success, to have got
3 it home?
4 A. I would have regarded it as the first stage in
5 a process.
6 Q. Would you have done what you could professionally to
7 successfully bring it home?
8 A. That's why I was instructed. That's what I was
9 instructed -- I was instructed -- I am sort of slightly
10 concerned "to successfully bring it home".
11 My role as prosecuting counsel is to present the
12 evidence to the court in and impartial and independent
13 manner. "Successfully bringing something home" smacks
14 to me of something less than my professional integrity.
15 "Bringing something home" suggests that I would have
16 some invested interest in it.
17 Q. You have described the issues about Pendine as
18 a peripheral issue as to credibility. Isn't that right?
19 A. No, it wasn't peripheral as to credibility. It was
20 peripheral to the issue that the court had to decide
21 whether or not Mr Atkinson and Mrs Atkinson and
22 Mr Hanvey were guilty of the charges they faced.
23 Q. It was peripheral in that respect?
24 A. In that respect only, yes.
25 MR DALY: Thank you.
147
1 Further questions from MR UNDERWOOD
2 MR UNDERWOOD: I missed the note, I am afraid. How long had
3 you been prosecuting in the Crown Court by late 2003?
4 A. I would have had regular experience of Crown Court prior
5 to 2002. I had done Crown Court trials, but I was
6 regularly prosecuting in the Crown Court from 2002 --
7 no, sorry, I beg your pardon, in Craigavon Crown Court
8 from 2002. Prior to that, I would have done some trials
9 in Belfast.
10 Q. As at late 2003, was your practice solely a prosecution
11 one?
12 A. Yes.
13 Q. Did you work very often with Mr Morrison?
14 A. It was the first time and only time I have worked with
15 Mr Morrison.
16 MR UNDERWOOD: Thank you very much indeed. Those are the
17 only questions I have.
18 THE CHAIRMAN: Thank you.
19 MR UNDERWOOD: Thank you.
20 THE CHAIRMAN: You are free now to go?
21 A. Thank you very much.
22 (The witness withdrew)
23 MR UNDERWOOD: Mr Mahaffey now, please.
24 MR CHRISTOPHER JOHN MAHAFFEY (sworn)
25
148
1 Questions from MR UNDERWOOD
2 MR UNDERWOOD: Good afternoon, Mr Mahaffey. Please sit
3 down.
4 A. Thank you.
5 Q. You know who I am by now --
6 A. I do, sir.
7 Q. -- and my role. I am very sorry to have kept you
8 waiting.
9 A. It is not a problem.
10 Q. What's your file name, please?
11 A. My full name is Christopher John Mahaffey.
12 Q. We have a statement from you which you kindly signed on
13 23rd July this year at page [81909]. If you would
14 please keep your eye on the screen while we scroll
15 briefly through the ten pages of it.
16 Is that your statement?
17 A. It is my statement, yes.
18 Q. Is it true?
19 A. It is true, yes.
20 Q. I have very few questions for you. In paragraph 9,
21 which we find at page [81910], you refer to an action
22 log in the first sentence, and in the second sentence
23 you deal with a chronology as well.
24 Can I just take you to the action log, which we
25 have, I hope, at page [71919], in fact?
149
1 A. Yes.
2 Q. Is that what you are referring to?
3 A. That is, yes.
4 Q. Thank you. You maintained the action log, I take it?
5 A. I did, yes.
6 Q. Who maintained the chronology?
7 A. I prepared the chronology myself.
8 Q. As you went along or from documents later on?
9 A. As far as I recall, the chronology came quite a lot
10 later.
11 Q. So would this be fair, if there is a distinction between
12 the two, it is the action log that's likely to be more
13 reliable?
14 A. I would expect so.
15 Q. If we look back in your witness statement at
16 paragraph 12, which we find on page [81911], you there
17 deal with the start of a series of meetings about,
18 amongst other things, Mr Atkinson and those meetings
19 involved, amongst others, Mr McBurney and Mr K?
20 A. That's correct, sir, yes.
[section redacted]
15 Q. Fair enough. Paragraph 15 of your statement, still on
16 the same page, you say:
17 "On 12th December 2000, at the request of DCI K,
18 I attended Gough Barracks for a meeting to discuss the
19 investigation into the alleged conspiracy involving
20 Reserve Constable Atkinson. During that meeting, K
21 expressed concerns about the handling of the two
22 witnesses, Timothy Jameson and Andrea McKee. I recorded
23 in my action log", and you give a page number.
24 Can I take you to the action log and see what that
25 actually says on that? It is page [71927]. It starts
151
1 at the bottom of page there.
2 A. Yes.
3 Q. You talk about:
4 "... considerable disparity between the two
5 accounts", and some research on HOLMES.
6 If we go over the page, we will see the rest of it,
7 [71928]. You say:
8 "At this time nothing can be found to explain how TJ
9 has progressed from the status of being a suspect to
10 that of a vital Crown witness."
11 You make a direction in the underlined part. You go
12 on to say:
13 "DCI K also drew my attention to his interview with
14 Constable P20 (now medically retired). It seems that he
15 had been with Constable G when the information
16 concerning Timothy Jameson was provided to
17 DI Michael Irwin.
18 "Constable P20 had previously provided information
19 to DI Michael Irwin concerning a conversation between
20 him and Andrea McKee.
21 There is a marked similarity, in that
22 Andrea McKee's status could be considered to be that of
23 a suspect. There is, however, a clear indication that
24 she was regarded by DI Michael Irwin as a witness.
25 "DCI K also pointed to the fact that it was
152
1 DI Michael Irwin who had taken all alibi statements from
2 the Atkinsons, McKees and Hanveys."
3 You make a further direction. Then you go on to
4 deal with Mr McBurney.
5 Is that what you mean by Mr K expressing concerns?
6 A. Yes, it is, sir.
7 Q. At that meeting, we know that Mr McBurney was taxed with
8 some matters by you. How did he take it?
9 A. I have some recollection of the meeting, and I can only
10 describe Mr McBurney as appearing somewhat resigned to
11 the fact that as a consequence of what I was told by
12 DCI K there would be perhaps an independent
13 investigation into the circumstances.
14 THE CHAIRMAN: An investigation, you mean?
15 A. Yes, sir. He seemed somewhat resigned. I think he was
16 aware of what was in the statements and the significance
17 or the potential significance.
18 MR UNDERWOOD: Then only a couple of other matters. You
19 obviously had much further dealing with DCI K after
20 that.
21 A. I did, yes.
22 Q. Can you give us a sort of snapshot opinion of his
23 capabilities in managing the investigations you were
24 concerned with?
25 A. Over the weeks and months that I had contact with DCI K
153
1 his commitment and his attention to detail was, in my
2 very humble opinion, of a very high standard.
3 Q. Thank you. One matter finally. We know that there was
4 debate once Andrea McKee had been the subject of
5 a decision to prosecute.
6 A. Yes.
7 Q. There was a question about whether her sentence should
8 be deferred until she gave evidence against others. Do
9 you have a recollection of that?
10 A. In preparing for today I have come across a reference to
11 that and I think there was some discussion.
12 Unfortunately, I can't remember where or when -- around
13 whether it was more appropriate for any sentence to be
14 imposed before being asked or not.
15 MR UNDERWOOD: I will not explore that with you then. Thank
16 you very much.
17 A. Thank you, sir.
18 THE CHAIRMAN: Can I just ask you about this? The first
19 document we looked at -- I am sorry, it was the strategy
20 document in which you say you don't understand how
21 Timothy Jameson moved from being a suspect to a prime
22 witness.
23 A. Yes, sir.
24 THE CHAIRMAN: The evidence we have heard shows that he was
25 received first as a prime witness, and there is evidence
154
1 about which there is some dispute as to whether he ever
2 became a suspect by those in charge of the
3 investigation.
4 Do you know where you got the notion from that he
5 was first a suspect and then became a prime witness?
6 A. To the best of my recollection, sir, I believe it was
7 an outcome of a statement received by DCI K's team
8 whilst he was making some enquiries into itemised
9 billings. They spoke to a police officer who was
10 involved at that time, and I think it was then that
11 concerns were raised that Timothy Jameson had made
12 certain admissions about his role.
13 Up until that point, I am aware that he had been
14 considered a witness only, albeit my recollection is
15 that he had prepared a questionnaire for the police
16 immediately upon commencement of their investigation
17 into the death of Robert Hamill, which I think was
18 negative. In other words, he said he had seen nothing,
19 and then he was subsequently, as I understand it,
20 introduced to Mr McBurney and his team as a potential
21 witness.
22 That's how I understand the chronology, sir.
23 THE CHAIRMAN: Thank you.
24 Questions from MR WOLFE
25 MR WOLFE: Just one brief matter. I am asking questions on
155
1 behalf of the Police Service. I am afraid I have
2 a first draft of your statement.
3 Just let me ask it in this way: do you have a view
4 that the murder investigation was poorly resourced?
5 A. I don't have a view that it was poorly resourced.
6 I have a view that perhaps the officers dealing with
7 major investigations in that area were probably
8 exceedingly busy, but I can't recall the exact numbers
9 of police officers Mr McBurney had working for him
10 dealing with the investigation into Robert Hamill's
11 death.
12 It is my thought that the numbers initially were
13 probably adequate, but perhaps officers got re-directed
14 to take up other tasks quite quickly.
15 Q. The evidence that we have, I think, is that, when the
16 inquiry or the investigation of the GBH -- there were
17 a certain number of officers led by P39 and Mr Irwin,
18 but when it became a murder investigation, it was ramped
19 up significantly and resources were brought in from
20 elsewhere in the division.
21 So I was curious when I read in your statement that
22 you were of the view that the murder investigation was
23 poorly resourced. I suppose I want to ask you where
24 does that opinion derive from?
25 A. I can't focus directly. It is certainly my view, having
156
1 researched the investigative material that was gathered,
2 that my reference to being poorly resourced perhaps
3 refers more to a distraction of resources in a very
4 short period of time.
5 Q. Yes. We heard yesterday from Mr Irwin, and indeed
6 today, who talked about really that the investigation
7 into Hamill and his murder was no different to other
8 similar investigations, in that there would be similar
9 kinds of pressures and demands on a police officer's
10 time, a detective's time, to look at other issues, other
11 crimes that were occurring perhaps within the division,
12 and so, in that sense, there was a consistency of, if
13 you like, difficulties with resource allocation. Do you
14 follow?
15 A. I would accept that.
16 Q. Is your approach to measuring the extent to which there
17 was any paucity of resources comparing
18 a Northern Ireland scenario, which we are looking at,
19 with your experience in England?
20 A. No. I think you have to take a great deal of care in
21 exactly not doing that, making any comparison to the
22 pressures that were upon the police in Northern Ireland
23 when you try to make a comparison with elsewhere.
24 Q. Let me just clarify finally. You are not making
25 a criticism, as I understand it, of the Royal Ulster
157
1 Constabulary in terms of the allocation of resources to
2 the Hamill murder inquiry?
3 A. No, I am not making a specific criticism at all.
4 MR WOLFE: I am much obliged. Thank you.
5 Questions from MR O'HARE
6 MR O'HARE: Mr Mahaffey, I appear on behalf of several
7 police officers, including the late Mr McBurney.
8 A. Sir.
9 Q. Can I take it, Mr Mahaffey, that when you say it
10 wouldn't be fair to compare murder investigations here
11 with murder investigations that took place on the
12 mainland, that that is something you acquired through
13 your experience working locally in the North of Ireland
14 when you joined the Ombudsman's Office?
15 A. I think, as one of a team of initially seconded police
16 officers from England who came to work for the Police
17 Ombudsman, we were immensely careful not to make any
18 comparison with anything we, as individuals, might have
19 been previously involved with.
20 It's quite -- I would suggest it wouldn't be
21 appropriate to do that.
22 Q. It wouldn't be appropriate to do that. Can I just ask
23 you about your secondment? You were on secondment to
24 the Police Ombudsman's Office?
25 A. I was, yes.
158
1 Q. When did you first join that office, roughly?
2 A. November 2000.
3 Q. In November 2000. Can we take it that the Hamill
4 investigation really would have been one of your first
5 major investigations in the Ombudsman's office?
6 A. Yes, but at that particular time there were enormous --
7 there were a lot of demands and challenges we were
8 facing with being a new organisation, starting up in
9 Northern Ireland. So it wasn't the only matter I was
10 dealing with, but, yes, it was one of the ones.
11 Q. Perhaps you can just help me with a couple of matters,
12 Mr Mahaffey. If page [81915] could be put up. It is
13 your Inquiry statement, at paragraph 32. If that could
14 be highlighted:
15 "I don't think Andrea McKee should have been allowed
16 to make her statement on 29th October 1997."
17 A. Yes.
18 Q. Could you please explain to me -- and maybe this is my
19 problem here -- why should she not have been allowed to
20 make that statement?
21 A. I think -- and again, one has to be hugely careful, and
22 hindsight is obviously a wonderful thing, in trying to
23 pass comment and judge on operational decisions that
24 have been made some years before. It is always
25 difficult. I was confused as to why Mr McBurney adopted
159
1 the approach he did in relation to Andrea McKee. That's
2 why it is phrased there.
3 Q. You were confused as to the operational decision that he
4 made?
5 A. I was confused as to their approach to Andrea McKee and
6 the whole alibi issue.
7 Q. But you accept from me -- I think it is your own
8 words -- it is a judgment really?
9 A. It is, yes.
10 Q. I believe you may have been in the Inquiry this morning
11 when Mr Irwin was telling the Inquiry that, when he was
12 taking that statement, he drew the declaration at the
13 top of that statement to Andrea McKee?
14 A. Yes, that's what he told us in interview.
15 Q. Of course, that would be a perfectly proper thing for
16 him to do in the circumstances of the taking of this
17 particular statement?
18 A. Yes, I accept that.
19 Q. Perhaps if I could move on then to paragraph 33, and
20 again perhaps you could help me here. It says:
21 "Why Andrea McKee was interviewed and a witness
22 statement taken from her on 20th June 2000 I cannot
23 understand. I was shocked that McBurney had gone down
24 that path without seeking any advice whatsoever. I say
25 that understanding the position of the DPP at that time
160
1 where advice would only be given upon the receipt of
2 a file of evidence. After the delays involved, I am
3 certain a report could have been submitted to have
4 obtained some form of advice."
5 Can I ask you: who were you saying in that
6 paragraph Mr McBurney should have sought advice from?
7 A. Well, I would have thought there were possible other
8 options to him either from the police legal department,
9 a direction from the DPP. I mean, I totally accept that
10 there wasn't a role for the director's office in
11 directing any operational matters of the police, but
12 I was surprised he hadn't shared with them his
13 intentions.
14 Q. Yes. Of course, if the advice from whoever he took that
15 advice had been, "Treat this lady as a witness" --
16 A. Uh-huh.
17 Q. -- would you have been happy then with that course of
18 conduct in treating Andrea McKee as a witness?
19 A. Not necessarily. I would have been happy that he sought
20 the advice.
21 Q. Happy that he sought the advice.
22 A. Yes.
23 Q. Did you ever consider that, if he had cautioned her,
24 having spoken to her in June 2000, it may have produced
25 a different reaction from Andrea McKee --
161
1 A. Absolutely.
2 Q. -- which would have entailed her being advised of the
3 right to legal advice, a solicitor, and it may have
4 produced, as I say, a totally different reaction on
5 Andrea McKee's part?
6 A. That is a constant dilemma when you are approaching this
7 type of matter.
8 Q. Yes.
9 THE CHAIRMAN: It might have meant the evidence simply was
10 not forthcoming?
11 A. I would suggest, sir, that the witness might have been
12 more reluctant to assist from the outset.
13 MR O'HARE: Especially a solicitor advising her that, if she
14 admits conspiracy to pervert the course of justice, she
15 would be looking at a custodial sentence?
16 A. I can't comment on what advice she might get.
17 Q. If I could finally go to paragraph 47, Mr Mahaffey, of
18 your statement, which is on page [81918], you deal in
19 the first part about your action log and the McKees
20 admitting their parts in the conspiracy and they were
21 later convicted and sentenced. Then the decision
22 reached by the DPP, on 18th October to prosecute.
23 Then the final sentence is:
24 "Unfortunately, the case did not proceed to trial
25 because of the decision by the DPP and counsel not to
162
1 use Andrea McKee as a witness of truth following her
2 non-attendance at the preliminary hearing."
3 When you say "unfortunately", the unfortunate bit
4 about all of this, these events, was that a decision was
5 not taken that Andrea McKee could be put forward as
6 a witness of the truth. Isn't that what you are saying?
7 A. I think I am saying it is an unfortunate outcome
8 overall.
9 Q. Because -- well, you heard Ms Smith give her evidence
10 this morning that she was the essential prosecution
11 witness in the case of the conspiracy against the
12 Atkinsons and Hanvey?
13 A. I heard part of the last witness' evidence. I did not
14 hear all of it.
15 Q. To paraphrase her evidence, Andrea McKee was the
16 essential prosecution witness, in that, to prove that
17 conspiracy and without her oral evidence to implicate
18 the others in that conspiracy, there was no case that
19 could proceed?
20 A. I understand that, yes.
21 Q. In fact, would you agree with me that if a different
22 view had been taken by prosecuting counsel and the
23 director's office and that she had been put forward as
24 a witness of truth and a trial took place regardless of
25 the outcome of that trial, in fact, Mr McBurney treating
163
1 her as a witness, as did he, in June 2000, the strategy
2 was justified?
3 A. I can't speculate as to any possible outcome.
4 Q. Well, he took the witness statement -- perhaps I will
5 put it this way. He took the witness statement in
6 June 2000 from Andrea McKee as a witness.
7 A. Yes.
8 Q. We have heard from junior prosecuting counsel that she
9 was the essential prosecution witness in the conspiracy
10 against the Atkinsons and Hanveys. A decision was then
11 made on her credibility, as a result of which the
12 prosecution could not proceed.
13 A. Yes.
14 Q. Do you not agree then, with hindsight, Mr Mahaffey, that
15 Mr McBurney, in treating her as a witness in June 2000,
16 was taking the right course of conduct in attempting to
17 get the Atkinsons and Hanveys in a Crown Court where
18 they could face the charges of conspiracy?
19 A. I understand the point you are making. My comment to
20 that would take you back to my earlier answer. I am
21 just surprised that Mr McBurney or -- Mr McBurney does
22 not appear to have obtained any prior advice or
23 guidance.
24 Q. What does it really matter about whether he took advice
25 or guidance prior to taking this witness statement? Can
164
1 you tell us: in the absence of treating Mrs McKee as
2 a witness, how was he to get the case in the court
3 against the Atkinsons and Hanveys, bearing in mind that
4 the covert obtrusive surveillance was a shambles in
5 effect?
6 A. At the risk of repeating myself, Mr McBurney made the
7 decision --
8 Q. Yes.
9 A. -- to take the action he did.
10 Q. Yes.
11 A. Nobody can speculate as to what the outcome may or may
12 not have been based on that decision.
13 My answer is that I was surprised that he hadn't
14 taken advice before taking the action he did.
15 Q. Well, would you accept from me that if Mr Simpson, at
16 consultation, decided, despite these lies about Pendine
17 surgery, etc, "We will pick her forward as a witness of
18 truth and see what a judge sitting alone in a Diplock
19 trial, or a jury, let them make the decision as to
20 whether her evidence is true", then Mr McBurney was
21 right in what he did?
22 A. That's a possible outcome.
23 MR O'HARE: Thank you.
24 Questions from MR McGRORY
25 MR McGRORY: Mr Mahaffey, our paths have crossed in the
165
1 context of this case before, so I need not introduce
2 myself. As you know, I represent the Hamill family now.
3 I just want to ask you about this strategy of
4 Detective Chief Superintendent McBurney's, because you
5 have said in your statement, in terms of his handling of
6 Andrea McKee -- this is in paragraph 31 -- his
7 explanation simply does not make sense.
8 Then you also say in paragraph 35 that you felt that
9 his handling of the inquiry was wholly incompetent.
10 That's what you have said to the Inquiry so far.
11 Now, can we just have a look at the strategy?
12 Mr O'Hare has been asking you on behalf of Mr McBurney
13 about the tactic of perhaps allowing Andrea McKee to
14 give the false alibi on the basis that, when it was
15 being given, those who were taking the alibi had a fair
16 idea that it was false because of what they already knew
17 about Andrea McKee.
18 A. That's correct, yes.
19 Q. Now it is being suggested to you that that was one
20 avenue of perhaps cracking this case rather than simply
21 stopping her in her tracks and saying, "Hold on a minute
22 here. Why are you telling us this when you came in with
23 Tracey Clarke?"
24 It is perhaps a legitimate tactic to allow her to
25 say what she wanted to say about the alibi on the basis
166
1 that that then opened up the possibility of cracking the
2 alibi?
3 A. I understand your point, sir. My thoughts are that you
4 actually have to look at the information that was
5 available to Mr McBurney quite early on, I think on the
6 day Robert Hamill died, in as much as there was
7 an allegation made against a police officer that he had
8 telephoned a third party and made a suggestion. I --
9 and again I really do think I have to be careful,
10 because to sit in judgment with the benefit of hindsight
11 is difficult, but I can understand why Mr McBurney did
12 not take more positive action on receipt of that
13 information almost immaterial of who it came from.
14 Q. Well, that's a different question, I suggest to you.
15 A. I apologise.
16 Q. I am going to come to that in a moment.
17 Dealing with this specific issue of having allowed
18 Andrea McKee to make the statement, in the knowledge
19 that she was almost certainly telling Inspector Irwin
20 a lie --
21 A. Uh-huh.
22 Q. -- is it not the better question to ask: once you have
23 that lying alibi, that then you move quickly to crack
24 it?
25 A. That is perhaps another avenue which didn't make
167
1 complete sense to me, in as much as I think it was
2 suggested by Mr McBurney in interview that his reason --
3 and I think Mr -- the previous witness, sorry --
4 Mr Irwin may have commented on it.
5 His strategy in doing that appeared to focus in on
6 the forthcoming trial of Marc Hobson and a potential
7 witness during which he may be able to develop this
8 further. I never fully understood what he anticipated
9 being able to do in relation to that. I couldn't see
10 the benefit.
11 Q. Might the reason for that be that he didn't actually do
12 anything? He didn't actually follow it up in the sense
13 that, once he got the lying alibi from Andrea McKee, no
14 action was taken on it?
15 A. I would agree.
16 Q. In fact, not for another three years was there any
17 action taken on it?
18 A. Two years, seven months I think is the ...
19 Q. Yes, the best part of three years.
20 A. Yes, sir. I agree. I understand that the coroner at
21 the time decided not to hold an inquest, so that
22 potential opportunity to Mr McBurney was in effect no
23 longer able, and so far as the trial of Marc Hobson is
24 concerned, equally I could not see where there was any
25 potential evidential opportunity there for him.
168
1 Q. Would you agree that the fact that there was a trial
2 pending plus the possibility of an inquest after the
3 trial is really neither here nor there, that in terms of
4 pursuing the murder investigation and the allegation of
5 the tip-off, that the existence of a lying alibi opened
6 up investigative opportunities in 1997 that were simply
7 not pursued?
8 A. I agree.
9 Q. Now, turning just to the manner in which Reserve
10 Constable Atkinson was approached in respect of the
11 information which Tracey Clarke had given about the
12 tip-off allegedly made to Hanvey --
13 A. Uh-huh.
14 Q. -- what happened of course is that the billing records
15 were obtained and were at least consistent with the
16 allegation as related by Tracey Clarke.
17 A. Yes, they lent some support to her account.
18 Q. There was then a three-month gap between the obtaining
19 of the telephone records in the middle of May 1997 and
20 the interviewing of Atkinson, which didn't take place
21 until September.
22 A. September.
23 Q. In the intervening period, is it not correct that, in
24 terms of the use of that information as evidence, steps
25 could easily have been taken in terms of a production
169
1 order through a court by the RUC to be able to use the
2 material evidentially?
3 A. Yes, that would be the way to take.
4 Q. When he was eventually interviewed, whatever about the
5 three-month delay, what happened in September was that
6 the later part of the September interview, after dealing
7 with the issue of him not getting out of the Land Rover
8 and so forth, there was mention of possible contact
9 between Atkinson and some or one of the suspects, and in
10 the course of that exchange, he was asked whether he
11 would mind producing his telephone records. You are
12 aware of that?
13 A. I am, yes.
14 Q. In your view as an investigator, wouldn't that have
15 alerted him to the fact he was at risk now, if he had
16 indeed been guilty?
17 A. I have no doubt it did.
18 Q. And that, when he was asked to return for interview, he
19 knew that he was going to be asked to explain the
20 telephone contact?
21 A. Yes. I think that's right.
22 Q. And that undoubtedly what he did, in your view as
23 an investigator, between September and October, was
24 concoct the alibi with the McKees?
25 A. I really can't speculate as to the chronology, but that
170
1 would seem to make sense, yes.
2 Q. Let's put it this way. He was not going to proffer the
3 McKees as an alibi in October if he was not confident
4 that, when they were spoken to, they would back him up?
5 A. Absolutely.
6 Q. There was the opportunity to confront him with the fact
7 that this was a concocted alibi at that time?
8 A. Uh-huh. There does not seem to have been any proper
9 investigation, any challenge of the alibi that was put
10 forward.
11 Q. Indeed, since the police who were doing the
12 investigating at the time did not believe Andrea McKee's
13 alibi statement, that was the time then to confront her
14 and say, "Look, this can't be true. Now what do you say
15 about it?"
16 That would have been the opportunity then for her to
17 have cracked?
18 A. That would have been the most appropriate time.
19 Q. The next step would have been to have confronted
20 Atkinson with a fake alibi?
21 A. Yes, I agree, sir.
22 Q. Of course, that might have opened up avenues in the
23 murder investigation?
24 A. It is possible, yes.
25 Q. Because Atkinson, faced with a prosecution for tipping
171
1 off one of the suspects, it may well have jogged his
2 memory about what he had observed on the night in
3 question?
4 A. It may well have done.
5 Q. In your view, wasn't a golden investigative opportunity
6 lost in October 1997?
7 A. I believe perhaps there was an opportunity lost before
8 that, as I have mentioned earlier, as well as in
9 October 1997.
10 Q. Now, of course, you and -- I think you approached the
11 chief constable in the run-up to Christmas 1999?
12 A. That's correct.
13 Q. You were deeply unhappy about Mr McBurney's involvement
14 in the case?
15 A. That's correct, yes.
16 Q. But Mr McBurney, of course, at this time, was
17 considering retirement. Isn't that right?
18 A. I don't recall the issue of his retirement came up at
19 that meeting. I think it was after that when I became
20 aware that he may have been considering retirement.
21 I don't recall any specific conversation about his
22 pending retirement at that stage. It might have been
23 later.
24 Q. But in any event, your immediate purpose for approaching
25 the chief constable was really to have him removed?
172
1 A. Yes.
2 Q. Your priority at that time was getting on with the
3 investigation. Isn't that correct?
4 A. Yes, and, equally, allowing the police to carry on with
5 their investigation into Robert Hamill's death.
6 Q. Yes. You were content that DCI K and Colville Stewart
7 had been appointed and were now vigorously pursuing it?
8 A. I believed at the time they were, yes, and that
9 continues to be my thought, yes.
10 Q. So you did not direct your attentions at that point into
11 an investigation of why Mr McBurney may have behaved in
12 the way he did?
13 A. I am slightly unsure round the chronology.
14 Q. It is not a criticism. It is simply a statement of --
15 A. Yes, that would be the case, yes.
16 Q. Now, I just want to ask you, Mr Mahaffey -- I am going
17 to draw your attention to a document, because there is
18 an issue which has arisen about a controversial document
19 drawn up by your superior, Mr Wood, on 14th March 2001.
20 I think in fairness, because I have asked him to
21 deal with it and I asked Mr K to deal with it that, that
22 we get your views on it. Everybody here knows the
23 document, but do you know what I am talking about,
24 before I show it to you?
25 A. I do.
173
1 THE CHAIRMAN: Let's have the document.
2 MR McGRORY: I will show you the relevant page, which is
3 [75208]. The relevant section begins:
4 "On 23rd February, DCI K raised further concern on
5 the arrest and proactive strategy against Atkinson. The
6 reasons he gave were ..."
7 A. Uh-huh.
8 Q. "Atkinson is seen as a local hero by one section of the
9 community."
10 A. Yes.
11 Q. A real risk of compromise with Atkinson finding the
12 equipment. This would result in:
13 "One section of the community being incensed that
14 police are devoting such resources to this particular
15 enquiry.
16 "The other section incensed as to why nothing was
17 done before, and that these two factors could further
18 place him and his team at risk to attack.
19 "There is a feeling in the local police that
20 Atkinson is being persecuted and such deployment would
21 have severe morale implications for the police."
22 Now, this could be read maybe in two ways. We have
23 had two alternative explanations for this. One thing
24 that has emerged is that Mr Wood only met K in March --
25 A. Yes.
174
1 Q. -- and that most of the contact was between you and K
2 and Colville Stewart in the run-up to that, and that
3 this section may be an amalgam of what might have been
4 said to Wood, Mr Wood, but what was certainly said to
5 you and conveyed to him, and the impression given in
6 this section is that, really, what they were saying to
7 you was that, "Look, we need to be -- we don't want to
8 investigate this guy, Atkinson. We could upset the
9 apple cart. He is a local hero. It could cause
10 community tensions. He is highly thought of in the
11 police. We don't want to go down this road."
12 Now, Mr K has given a different version of it. What
13 was your memory of what it was they were saying to you?
14 A. I have some recollection of this meeting and I have some
15 recollection of earlier meetings between myself and
16 DCI K and Mr Stewart.
17 As the weeks progressed, following on -- while the
18 police were making preparation for this intrusive
19 surveillance, my recollection is that Mr K and
20 Colville Stewart were becoming increasingly uneasy about
21 what they were trying to achieve; in other words, what
22 we had suggested they try to achieve. These -- I think
23 this was a number of issues they were raising in support
24 which showed, you know, their level of unease at going
25 down this road.
175
1 I got the distinct impression -- and it is a very
2 personal impression -- that perhaps Mr Stewart and DCI K
3 were moving into an area of investigation or a means of
4 investigation they had probably not dealt with before
5 and that probably added to their unease, perhaps a lack
6 of confidence
7 Q. Do you mean by that investigating the corruption of one
8 of their own members or the use of intrusive
9 surveillance?
10 A. Oh, certainly not the corruption. My immediate response
11 is that -- reaction to your question is that they felt
12 uneasy about being asked to do something they had not
13 done before, and, in the context of Northern Ireland,
14 the use of this investigative means had been used very
15 infrequently, if at all, for evidential gathering
16 purposes.
17 Q. Mr Wood commented later in the document that he felt
18 there was a lack of appetite to tackle RC Atkinson?
19 A. I would have to be slightly at odds with that. I felt
20 that Mr Stewart and DCI K made every effort, or were
21 making every effort, to investigate that which had been
22 given them a few years later, but this was an unknown
23 area -- an unknown investigative area they were moving
24 into, so I think if they could have investigated him by
25 any other means, they would have put that forward.
176
1 MR McGRORY: Thank you.
2 Questions from MR McCOMB
3 MR McCOMB: Mr Mahaffey, my claim is name is McComb.
4 I represent, amongst other people, Timothy Jameson.
5 I just have short questions for you. In answer to the
6 Chairman just a few minutes ago, you were aware, were
7 you, that there are two conflicting things here, whether
8 Timothy Jameson was to be treated as a suspect or as
9 a potential witness?
10 A. That's correct.
11 Q. There appear to be conflicting accounts among the
12 various officers. On one view, there was an oral
13 admission by him that he had put the boot in.
14 A. That's correct, sir.
15 Q. As against that, a number of the other officers say they
16 never heard that. That was never communicated to them,
17 albeit that he was brought into the police station later
18 on that day and was dealt with basically as a witness?
19 A. That's correct.
20 Q. Now, the only thing I am asking you, and you may not be
21 able to help us about this, is that there was a period
22 of time that went by until 19th November 2002.
23 On that day -- and it wasn't part of any other
24 operation, it would seem -- Timothy Jameson was arrested
25 and interviewed under caution in relation to this
177
1 specific thing, not, as I can see, in relation to
2 anything else.
3 Were you still involved in the supervision, as it
4 were, or the liaising with the police in relation to
5 whatever ongoing enquiries there might be?
6 A. Yes. I recollect still having an involvement and I do
7 recollect discussing it with DCI K, that this was going
8 to be his approach in addressing the allegation that he
9 had before him.
10 Q. We heard yesterday from Mr Irwin that it was his clear
11 recollection that there was only the one time that
12 Mr Jameson had been interviewed or questioned by the
13 police.
14 A. I can't help you, I am afraid.
15 Q. Please take it from me that is the case. It appears
16 from the evidence which we have that there was no
17 subsequent information coming from, directly or
18 indirectly, Mr Jameson to the police other than what he
19 had said to begin with.
20 A. I wouldn't have any knowledge of that.
21 Q. I was just wondering then, in conclusion, is there any
22 way in which you can assist in casting light on how the
23 decision or why the decision was made some four years
24 later in 2002 to arrest and interview Mr Jameson?
25 A. My recollection is that the decision was taken based on
178
1 the information that DCI K had received from the --
2 I think it was the Reserve Constable.
3 Q. There were two reserve constables, yes, G and McCaw?
4 A. Who had (overspeaking) a conversation that they believed
5 they had heard.
6 Q. May I just say in completion that that was indeed the
7 conversation they had relayed to the officers back in
8 Portadown on the 9th, and there was no subsequent
9 conversation, they say, in relation to that?
10 A. Yes, that's my recollection, sir.
11 MR McCOMB: Thank you very much.
12 THE CHAIRMAN: I thought only one of them said it had been
13 relayed. The other said no.
14 MR McCOMB: Of the Reserve Constables?
15 THE CHAIRMAN: Only one of them said he had relayed this
16 information about an admission.
17 MR McCOMB: That's quite right. G was adamant that that had
18 been relayed. P20 unfortunately -- well, as you will
19 know, sir, at the time that he was subsequently
20 interviewed, he had had some problems of his own of BCG
21 treatment and others.
22 THE CHAIRMAN: Yes.
23 Questions from MS DINSMORE
24 MS DINSMORE: Good afternoon, Mr Mahaffey. My name is
25 Margaret Ann Dinsmore. I appear on behalf of Eleanor
179
1 and Robbie Atkinson. Really, I just have one question
2 for you. I wonder if you could be good enough to put up
3 again the memo which Mr McGrory referred, to, [75208],
4 please. Mr McGrory referred you to the
5 paragraph starting:
6 "On 23rd February ..."
7 Now, I appreciate, Mr Mahaffey, you are not from
8 these parts, but no doubt you are very familiar indeed
9 with the great tragedy of Drumcree?
10 A. I am, yes.
11 Q. Did you hear the evidence this morning of
12 Detective Inspector Irwin?
13 A. I didn't, no.
14 Q. Well, suffice to say that Detective Inspector Irwin had
15 set out a very helpful passage in his evidence wherein
16 he outlined how very difficult Drumcree was for both of
17 the communities, and, indeed, for those policemen who
18 served without fear or favour at the Drumcree disputes.
19 I am putting that to you because Mr Atkinson was one
20 of those policemen who did serve, and lived in
21 Mahon Road for a month. Mr Irwin agreed that that
22 scenario would render Mr Atkinson very much a figure
23 anything other than a hero by either side of the
24 community.
25 That wouldn't come as a surprise to you, even though
180
1 you are not from these parts?
2 A. It wouldn't, no.
3 Q. I am not aware just how familiar you are with the
4 background, but are you aware that Mr Atkinson's home
5 was attacked by Loyalists in the past?
6 A. I wasn't aware, no.
7 Q. Have you any reason to believe that Mr Atkinson was
8 anything other than the subject of very real security
9 concerns arising from both sides of the community?
10 A. I have no knowledge of ...
11 Q. There was nothing ever suggested to you to the contrary?
12 A. I am sorry. I have no knowledge of any level of threat
13 or attack upon the officer.
14 Q. Right. Well, if you can take it that he was. It is
15 accepted within the police force that his house was shot
16 at by Loyalists, and, indeed, it was suggested that his
17 home be moved because of the area where he lived in.
18 That certainly would not be evidence of someone who
19 was considered by the Loyalist community to be a hero.
20 Isn't that right?
21 A. As I say, I had no knowledge of that.
22 MS DINSMORE: Thank you very much.
23 Questions from MR O'CONNOR
24 MR O'CONNOR: Just one short matter, Mr Chairman. If we
25 could have page [81916] back up on screen, please, and
181
1 highlight paragraph 37.
2 Mr Mahaffey, I appear for DI Irwin, as he then was.
3 Your investigation took three years. Is that right?
4 A. The best part of I would think, sir, yes.
5 Q. It says in your statement it was three years.
6 A. Yes.
7 Q. It was a thorough investigation?
8 A. As thorough as I believe it could have been.
9 Q. Robust questioning?
10 A. Robust questioning of?
11 Q. Of Mr Irwin in this case.
12 A. I would suggest it was a reasonably robust interview.
13 Q. Then, if I just take you to your conclusions about
14 Mr Irwin, because it really involved Mr McBurney and
15 Mr Irwin. Paragraph 37 reads -- it is a brief
16 paragraph. If you will allow me, Mr Chairman:
17 "Michael Irwin had not been a detective inspector
18 for very long and he made every earnest effort to
19 investigate the murder of Robert Hamill. He went to
20 great lengths to secure evidence and identify those who
21 had assaulted Robert Hamill. I felt that Irwin found
22 himself in an extremely difficult position and
23 uncomfortable about what he was being asked to do and
24 just felt he had to do so, in respect of Andrea McKee,
25 because he was given an order. I did not think there
182
1 was sufficient evidence to discipline him."
2 That was your conclusion about Michael Irwin?
3 A. That's correct, yes.
4 MR O'CONNOR: Thank you.
5 MR UNDERWOOD: I have nothing arising out of that.
6 THE CHAIRMAN: Thank you.
7 MR UNDERWOOD: Mr Mahaffey, thank you very much for coming.
8 A. Thank you, sir.
9 (The witness withdrew)
10 MR UNDERWOOD: I understand we need a five or ten-minute
11 break. Perhaps I could ask you to rise for ten minutes?
12 THE CHAIRMAN: Yes. Ten minutes.
13 (3.20 pm)
14 (A short break)
15 (3.30 pm)
16 MR UNDERWOOD: Thank you, sir.
17 Sir Ronnie Flanagan, please.
18 SIR RONALD FLANAGAN (sworn)
19 Questions from MR UNDERWOOD
20 MR UNDERWOOD: Good afternoon, Sir Ronnie.
21 A. Afternoon.
22 Q. My name is Underwood and I am Counsel for the Inquiry.
23 I have a few questions for you. It may well be that
24 others will have some.
25 Can you tell us your full name, please?
183
1 A. Ronald Flanagan.
2 Q. You have done a couple of witness statements for us.
3 Can I get you to look at them? The first one is at
4 page [80266]. That runs to five pages. If I can ask
5 you to keep your eye on the screen, we will flick
6 through the five pages fairly briefly.
7 Is that the statement you signed on 31st July 2006?
8 A. It is.
9 Q. Did you believe it to be true when you signed it?
10 A. I did.
11 Q. The second one is at page [81831]. Again, can you keep
12 your eyes on the six pages as we flick, please?
13 A. Yes.
14 Q. Is that your statement of 28th April this year?
15 A. It is.
16 Q. Are the contents of that true?
17 A. Yes.
18 Q. Thank you. Back to the first statement at [80266].
19 There are some documents to which you refer in it by
20 initials and numbers. I just want to run through, if
21 I may, and identify them by our new numbering system.
22 If we go to page [80267] to start with, in the final
23 two lines --
24 A. It has not come on to my screen as yet, sir.
25 Q. No, it hasn't. [80267].
184
1 A. Yes, it is here.
2 Q. The final two lines. In fact, let's pick up
3 paragraph 8. It is not easy to see, is it?
4 A. Yes.
5 Q. "On 18.12.97, I was briefed by ACC Crime following the
6 withdrawal of charges against five of the suspects and
7 to respond to a letter I had received from the then
8 Secretary of State. I responded by letter dated
9 23.12.97. There is now produced and shown to me marked
10 'RF1' a copy of the briefing note and my response to the
11 Secretary of State."
12 If we could look now at page [15385], is that the
13 briefing note? By all means look at it if you need to.
14 A. That's the briefing note, I think, from the Assistant
15 Chief Constable in charge of Crime Branch to my staff
16 officer.
17 Q. Thank you. In fact, if we look at [15389] just to
18 clarify, you can see it is signed off by RC White,
19 ACC Crime?
20 A. That is correct.
21 Q. Then if we go to [15375], is that the response you talk
22 about in your witness statement?
23 A. This is the response.
24 Q. Going back to the witness statement at page [80268],
25 paragraph 10, in the final three lines of that you say:
185
1 "There is now produced and shown to me marked 'RF2'
2 a document referring ..."
3 That's referring to a briefing -- sorry, I shall go
4 up one sentence:
5 "When DCS McBurney briefed me on this other matter,
6 I contacted the Director of Public Prosecutions because
7 I wanted someone in the office of the DPP to work with
8 McBurney as to strategy; for example, whether this
9 person [that is Andrea McKee] should be treated as
10 a suspect or a witness."
11 You now produce a document referring to that at RF2.
12 I want to show you page [18977]. It is a minute of the
13 Director of Public Prosecutions referring to a telephone
14 call from you on 22nd June 2000.
15 Is that the document you are referring to in your
16 witness statement?
17 A. That is the document.
18 Q. Thank you. Going back to your witness statement at
19 page [80269], paragraph 15, you are there in general
20 discussing some potential criticism that was made about
21 Mr McBurney's investigation. If we pick it up four
22 lines from the bottom, you say:
23 "DCS Stewart then reported to me after he had
24 conducted a review. There is now produced and shown to
25 me marked 'RF3' a copy of that report. In that report
186
1 he raised his concerns about the initial scene
2 management", etc.
3 Can we look, please, at page [03107]? Is that the
4 report or HOLMES version of that report?
5 A. Yes, that is the report.
6 Q. Thank you. Then back to the witness statement,
7 page [80270], paragraph 16, you say:
8 "On 2.3.01, I met with the Ombudsman and David Wood,
9 also of the Ombudsman's Office. They discussed with me
10 their concerns about the case. There is now produced
11 and shown to me marked 'RF4' a copy of a branch note
12 which references that meeting."
13 If I can take you, please, to page [14632], is that
14 the branch note? Again, if you need to read through any
15 of these, please tell me?
16 A. No, that is the note.
17 Q. Thank you. Almost finished. Paragraph 17 back in your
18 witness statement, page [80270]. You say there:
19 "On 14.5.02 Chris Mahaffey of the Ombudsman's Office
20 wrote to me. There is now produced and shown to me
21 marked 'RF5' a copy of that letter. He sought clarity
22 on two issues: (1) the delay between October 1997 and
23 June 2000 in dealing with the alibi witnesses; (2)
24 whether there were other motivating factors relevant to
25 the investigation of enquiries in June 2000."
187
1 It says there 2001. It must be 2002, I think:
2 "A copy of that letter is now produced to me an
3 marked 'RF6'."
4 If we can look at a couple of pages to see if they
5 relate to those.
6 A. Sorry, I think it had to be actually 2001. I had
7 retired by May 2002.
8 Q. Let's look at the letters themselves and we will see.
9 A. Oh, sorry. I beg your pardon. I think that was written
10 to me after I had retired.
11 Q. That's the risk, isn't it? Even coming and giving
12 evidence at Inquiries is one of those risks.
13 A. Sorry.
14 Q. Can we look at [14379] then, please?
15 A. Yes, that is the letter from Mr Mahaffey of the Police
16 Ombudsman's Office.
17 Q. And [14378], is that the reply?
18 A. Of course. It is 2002. Sorry about that.
19 Q. Not at all. As I say, a very few matters. Can I get to
20 you look at paragraph 10 of your first statement?
21 That's at page [80268]. You said there:
22 "I first became aware that allegations had been made
23 that a reserve constable assisted a suspect in around
24 June 2000."
25 Because this is the subject of a second statement,
188
1 which is whether I asked you whether this was true or
2 you believed it to be true when you said it. Can we now
3 look at the second statement, paragraph 3, which is at
4 page [81831]? You say:
5 "Briefing would have taken a number of forms. As
6 chief constable, I had regular Monday morning meetings
7 with all my chief officers. These meetings alternated
8 with one week being specifically devoted to operational
9 matters and involving Assistant Chief Constable Crime
10 Branch, ACC Special Branch and three regional uniformed
11 ACCs who had 'territorial' responsibility for the
12 Greater Belfast region and for what we described as
13 north region and south region."
14 Then if we go to paragraph 4 on the next
15 page [81832]:
16 "On the alternate Mondays I initiated what
17 I recalled the chief constables' policy meeting, which
18 had a much wider attendance, including, for example
19 ACC Personnel and Training, ACC Complaints and
20 Discipline, Force Press Officer", etc.
21 If we go to paragraph 10 now, page [81833], and
22 11 -- pick up both -- at 10 you say:
23 "I have no recollection of being briefed on
24 10th May 1997 by Maynard McBurney about a reserve
25 constable making a telephone call to one of the alleged
189
1 offenders. I have complete trust in Mr McBurney,
2 however, and if he is sure that such a conversation took
3 place, I would not dispute it."
4 Then at 11 you say:
5 "I have been told that Maynard McBurney states that
6 he may have briefed ACC South during a face-to-face
7 meeting with regard to the allegation about the reserve
8 constable. I do not recall being briefed on this at
9 an early stage, but I have earlier indicated this may
10 have been the case."
11 Taking all that, is the position you have no memory
12 of being briefed about Mr Atkinson?
13 A. When I made my original statement it was my very honest
14 belief that the first I had been briefed about the
15 behaviour of the reserve constable, or alleged
16 behaviour, was when Maynard McBurney came to me in 2000.
17 I have now seen documents which lead me to accept
18 that I could have been briefed. I certainly do not
19 recollect the specific briefing.
20 Q. That's very kind. It is to one of those I now want to
21 turn, if I may, at page [74231].
22 It is the final entry on that that we want to look
23 at. This is ACC Hall's journal. It is difficult to
24 decipher, but:
25 "12/5/97", which he tells us was a Monday, he says:
190
1 "Attend meeting at FHQ - chief constable either in
2 charge or in chair. Briefed chief constable, DCC plus
3 ACC C re allegation against R/Con Atkinson, Portadown,
4 by Miss T Clarke", that's supposed to be.
5 What he told us was he had been briefed via
6 an intermediary -- in fact, went straight from
7 Mr McBurney on the Sunday before this, the day before,
8 about, amongst other things, the tip-off allegation by
9 Mr Atkinson, and he took it to one of your Monday
10 meetings the next day and there it was aired.
11 Do you have any reason to dispute that?
12 A. I have no reason to dispute it. I consider Mr Hall to
13 be a very efficient officer of the utmost integrity. So
14 I have no reason to doubt that. I have no personal
15 recollection.
16 I am certain 12th May is two days after
17 Robert Hamill died. So obviously, we would have been
18 certainly discussing the incident. I have no specific
19 recollection of the question of alleged behaviour by the
20 reserve constable being raised at that time.
21 Q. Mr Hall also went on to tell us that in very broad terms
22 everybody was satisfied this was being looked into,
23 because the ICPC was supervising it.
24 Again, would you have any reason to dispute that
25 concession?
191
1 A. No, absolutely not.
2 Q. Thank you. There are two other documents I would like
3 you to look at, if you would, please. The first is at
4 page [39623]. I know you have been shown this recently.
5 It is a minute marked "Confidential" signed by the then
6 Permanent Undersecretary of the Northern Ireland Office.
7 I think you know who he was.
8 A. Yes.
9 Q. He is recording a meeting that he had with you. I just
10 want to ask you whether you accept the accuracy of the
11 record here. He says:
12 "During a meeting with the chief constable on
13 a range of subjects on 9th June, I asked him about
14 various aspects of Hamill.
15 "2. I said that the Secretary of State was seeing
16 increasing difficulty about resisting the demands for
17 a public inquiry in light of the allegations made about
18 the slowness to react of the officers in the Land Rover.
19 Ronnie said that if the Secretary of State decided to
20 set up a public inquiry, he would not be resisting it.
21 During later discussion he admitted that this was
22 because he believed that little harm could be done to
23 the RUC by a public inquiry into this case."
24 Would you accept the accuracy?
25 A. I wouldn't accept the use of the word "admitted".
192
1 I certainly, at that stage, did not feel that the RUC's
2 reputation would be harmed by an inquiry and I certainly
3 wouldn't be resisting it, so I have a little issue with
4 the use of the words "he admitted", as if that was the
5 only reason that I wouldn't resist it. I certainly
6 would never have requested such a decision by the
7 Secretary of State.
8 Q. Thank you. Over at page [39624] -- can we have [39624]
9 and the next page, [39625], up together?
10 Looking at the first three lines of paragraph 6 on
11 the left-hand side:
12 "As to the allegation that a police officer had
13 advised a leading suspect to burn the clothing that he
14 had worn that night to avoid forensic examination,
15 Ronnie said that ..."
16 Then if we go to the top bullet point on the
17 right-hand side:
18 "The allegation had been exhaustively investigated
19 under the direction of the ICPC's most competent member
20 (now dead) and even the ICPC were not suggesting that
21 any disciplinary charge should be brought."
22 Did you believe that the ICPC had been supervising
23 the allegation that Atkinson tipped off Hanvey?
24 A. Yes, I did.
25 Q. Is that reference to Mr Murnaghan?
193
1 A. Mr?
2 Q. Murnaghan.
3 A. Yes, it is.
4 Q. Thank you.
5 A. Again, the phraseology -- a very minor point. I am not
6 suggesting that Mr Murnaghan was the most competent
7 member. That's no reflection on any other supervising
8 members. I was saying, in my experience, he was a very
9 competent member and a most competent member, but it
10 doesn't mean the most within the organisation. Sorry.
11 It is a very small point.
12 Q. I don't think anybody in the Inquiry is saying he was
13 the most competent member of the organisation.
14 If we look further down the right-hand page -- in
15 fact, can we have [39625] and [39626] up together?
16 I just want to take you to paragraphs 8 and 9 here.
17 In 8, on the left-hand side:
18 "I said that, whatever the ICPC thought, I was
19 pretty uncomfortable", this is obviously the
20 Undersecretary, "about Portadown being policed by
21 someone who, at the level of a strong possibility or
22 even a probability had conspired to pervert the course
23 of justice in a murder case. Surely any social contact
24 with a leading suspect in a murder case where the police
25 officer had been present was unwise/unprofessional, to
194
1 put it at its lowest? Put to him like that, Ronnie
2 appeared to agree and said that in similar circumstances
3 he had sacked people and paid whatever it cost because
4 they could not be got bang to rights. He implied that
5 if I asked him to do so, he would sack Reserve Constable
6 Atkinson. I said that it was a matter for him, not me.
7 We might need to revert to the point."
8 Would you like to comment on that?
9 A. I certainly would not sack anybody just because
10 a Permanent Secretary (sic) had asked me. I consider
11 that bit to be an inaccurate reflection of any
12 conversation we would have had.
13 Certainly there were instances -- I will not go into
14 them in detail unless the Inquiry feel it's relevant --
15 but there were instances, I can think of one in
16 particular, where someone was cleared of a very serious
17 crime but cleared on a technicality, and I, with the
18 approval of the police authority, decided to terminate
19 that person's employment, and, even if it was considered
20 legally to be an unlawful dismissal, we would pay the
21 amount concerned for such an action.
22 Q. Thank you. Paragraph 9, which we still have up on the
23 right-hand side:
24 "I asked why Reserve Constable Atkinson had not been
25 suspended from duty while such a grave matter was being
195
1 investigated. Ronnie said that he had been kept away
2 from it as standard practice in case he had to sit in
3 a disciplinary case. I said that he was surely
4 responsible for the policy. He said that the decision
5 to suspend would depend on the strength of the prima
6 facie evidence as well as the seriousness of the
7 allegation. I feel (but did not say) that the failure
8 to suspend may be indicative of a failure to strike the
9 right balance between fairness to the officer and taking
10 seriously a very serious allegation."
11 Let's unpick that. Dealing first of all with what
12 you said, did you say, as a matter of course, you would
13 not be dealing with matters such as suspension because
14 you were the ultimate appeal authority, as it were?
15 A. That's correct, and it is not just a matter that applied
16 to the then RUC or the PSNI. That would be standard
17 practice in British policing. The deputy is the
18 disciplinary authority for a policing organisation.
19 Q. Right. Would you like to comment on the unexpressed
20 view, which we have now made public, that the decision
21 to suspend didn't strike the right balance, or, rather,
22 a failure to suspend did not strike the right balance?
23 A. Well, without having been personally involved and
24 without having seen in detail all of the evidence
25 concerned, it is difficult for me personally to say
196
1 whether the right balance had exactly been found, but
2 certainly I had great trust, and rightly so in my view,
3 of the people who would be involved in such decisions.
4 Q. This would have been the Complaints and Discipline side,
5 would it, G Division?
6 A. That's correct.
7 Q. Thank you.
8 A. G Department. G Division is a geographical area.
9 Q. That's my fault. Finally, a document I would like you
10 to look at, please, is at [39693]. It starts at
11 [39692]. I don't want you to take to you that page, but
12 let's just contextualise this document.
13 It is dated 24th July 2000. It relates to, amongst
14 other things, a meeting you had with, I think, a senior
15 civil servant, who was given the task of looking into
16 the Robert Hamill death with a view to advising the
17 Secretary of State about whether there should be
18 an inquiry and, if so, on what terms.
19 Does that ring bells with you?
20 A. It does.
21 Q. Thank you. It is discussing a meeting with you on
22 21st July 2000. If we now look at page [39693], it is
23 paragraphs 5, 6 and 7 that I would invite your comments
24 on. At 5 you said:
25 "The chief constable had sent the ICPC
197
1 recommendation for neglect of duty disciplinary charges
2 against Constable Neill to counsel and he would be
3 guided by counsel's advice, though he himself did not
4 think, on present information, the charges would have
5 'a snowball's chance'."
6 It turned out that counsel agreed with you, I think.
7 A. Well, I think this was a potential recommendation that
8 the person who had the most service would face a charge,
9 and I didn't think that that was right, because that
10 person did not have a supervisory responsibility over
11 the rest of the officers. So I certainly thought that
12 legally, and on other grounds, that wouldn't be
13 appropriate.
14 Q. Right. You then go on:
15 "He was advised that Constable Neill was
16 an outstandingly sound officer, but, 'if there should be
17 an inquiry, so be it'."
18 That appears to be a reference to whether there was
19 or was not a need to air it before an inquiry bearing in
20 mind there had there had already been a very thorough
21 investigation into the officers in the Land Rover.
22 Is that a fair analysis of that part of the
23 discussion?
24 A. I mean, my understanding is that's exactly what this man
25 was asked to do. I had never met him before. I didn't
198
1 know him. I think he was then commissioned by the then
2 Permanent Secretary (sic) to make a recommendation to
3 the Secretary of State as to the appropriateness or
4 otherwise of an inquiry. That was my understanding of
5 what he was ...
6 Q. Again, is that a fair reflection of your attitude:
7 "If there should be an inquiry, so be it."
8 A. Absolutely.
9 Q. Then at paragraph 6:
10 "I am sure, however, that this attitude of resigned
11 acceptance would not extend to any idea of an Inquiry
12 while the current criminal investigation is in train,
13 since the chief constable emphasised that his main
14 concern was not to impede this", that must be the
15 criminal investigation, "and that the DPP and ICPC were
16 now fully involved."
17 Again, is that an accurate reflection of your
18 position?
19 A. Absolutely. I think it would be inappropriate for
20 an inquiry to be initiated while an investigation was in
21 progress.
22 Q. Then at paragraph 7:
23 "I asked what had precipitated the new criminal
24 investigation."
25 That's a reference back, of course, to Andrea McKee
199
1 having told Mr McBurney that she had lied in marking up
2 an alibi or supporting an alibi and a continuing
3 investigation arising out of that into Atkinson and
4 others. I asked what had precipitated the new criminal
5 investigation. The chief constable said that when the
6 coroner had given 'the gem' to Robert Hamill's family
7 solicitors, he himself had 'pushed and pushed' and the
8 re-interview of Mrs McKee followed directly from that.
9 ('The gem' is presumably the information that statements
10 identifying the murderers had been withdrawn)."
11 Firstly, is that right, that you were --
12 A. I cannot understand that. The word "gem" is not
13 something I would normally use and I can't understand it
14 in this context. If it was colloquially "gen", meaning
15 information, I might have done. I haven't a clue.
16 This -- "the gem", but certainly what drove me to insist
17 this woman should be re-interviewed was the late
18 Maynard McBurney briefing to me of a new development
19 that gave, in his view, some hope.
20 Q. Let me just give you a bit of context here. What we
21 understand is that Mr McBurney went to see Andrea McKee
22 in Wales in June. The only reason he did that -- there
23 were two reasons for that.
24 Firstly, there was a long-view strategy that at some
25 point the McKees would break up and that he might be
200
1 able to get into this conspiracy by getting her to admit
2 her part in it.
3 Secondly, they, having broken up and there being --
4 they, having broken up, this was the chance to go see
5 her.
6 A. That's exactly the brief that Maynard McBurney gave to
7 me. At that time, having received that briefing,
8 I remember contacting the Director of Public
9 Prosecutions, and I think you earlier referred me to
10 a note that the director made about that contact.
11 I also contacted the ICPC to ensure that they supervised
12 what McBurney was going to do, having consulted the
13 Director of Public Prosecutions.
14 Q. Again, that's entirely consistent, if I may so, with the
15 evidence we have heard. The difficulty I have with this
16 is that this sentence puts it the other way round. Look
17 at the second sentence in the paragraph 7 again:
18 "The chief constable said that when the coroner had
19 given [whatever it was] to Robert Hamill's family
20 solicitors, he himself had 'pushed and pushed' and the
21 re-interview of Mrs McKee followed directly from that."
22 A. I cannot understand what he is noting there. I certainly
23 pushed and pushed, having been given the briefing by the
24 late Maynard McBurney.
25 Q. Does it follow from that then, that as far as you were
201
1 concerned, there was nothing going on live in that part
2 of the investigation until Mr McBurney came to you and
3 said, "I have been to see her and she's cracked"?
4 A. My understanding -- no, sorry, he came to me before he
5 went to see her.
6 Q. Right.
7 A. I was pushing and pushing then, "You must make
8 arrangements. Go and see her now. But, before you do,
9 discuss the strategy with the director. Should she be
10 treated as a suspect? Should she be treated as
11 a witness?"
12 So his briefing to me was before he travelled to
13 interview her. I am at a loss to understand what this
14 witness has written in terms of this.
15 MR UNDERWOOD: I follow. Thank you very much indeed,
16 Sir Ronnie. Those are the only questions I have.
17 Questions from MR WOLFE
18 MR WOLFE: Very briefly, Sir Ronnie, my name is Wolfe. I am
19 about to ask you some questions on behalf of the Police
20 Service this afternoon.
21 Is it fair to say -- I suspect you will accept
22 this -- that politics and policing in Northern Ireland
23 really went hand in glove, certainly in 1997 and
24 probably for a lot of years before that?
25 A. Absolutely. I mean, there is mention of the Secretary
202
1 of State being the late Dr Mo Mowlam. I am not exactly
2 sure, but I think the election was in May, so things
3 were changing just when all these events were actually
4 taking place.
5 Certainly the new Secretary of State came into
6 office I think in May or possibly early June just at
7 exactly this time. So obviously there were a lot of
8 political issues impacting on policing at the time.
9 Q. But if we narrow it to a Northern Ireland sense, plainly
10 the politics of policing were something you were very
11 familiar with, and specifically you had to deal with
12 issues such as the support of the Catholic community in
13 policing. There were issues around that, and
14 increasingly, by 1997, with the policing of the
15 Loyal Orders and their marches, there were issues around
16 Protestant support for policing.
17 A. If I could explain, Chairman, in 1996, when I was Deputy
18 Chief Constable, the RUC were forced into a decision to
19 reverse their earlier decision not to allow a parade to
20 proceed along Garvaghy Road in Portadown. After some
21 four or five days, when we, as an organisation, frankly
22 were overwhelmed, that decision was changed and the
23 parade was allowed to proceed. That undoubtedly caused
24 very serious damage in the relationship particularly
25 between the Nationalist community and the Royal Ulster
203
1 Constabulary.
2 I was appointed as chief constable in November of
3 1996 and I remember being interviewed on appointment as
4 to what my priorities would be, and I remember saying
5 that my main priority would be to attempt to rebuild
6 trust and confidence particularly between the
7 Nationalist community and the RUC. So I am thereby
8 agreeing with the question that you have put to me.
9 '97, of course, in May '97, we would have already
10 been well into the so-called marching season. I think
11 it is worth remembering that there were no ceasefires at
12 this time. The IRA ceasefire had broken down in 1996
13 with the attack on Canary Wharf and had not yet been
14 reinstated. So there was full terrorism as well, but we
15 were approaching at this time the Drumcree March for
16 '97.
17 Q. Yes. Building on that context, Sir Ronnie, I want to
18 ask you about the whole issue of police complaints. At
19 that time, as we know, the ICPC was the organisation
20 charged with supervising complaints against police.
21 Isn't that correct?
22 A. That is correct.
23 Q. It wasn't until late 2000 that the Ombudsman's Office
24 was created?
25 A. That's my understanding. I couldn't give you an exact
204
1 date, but I understand late 2000, yes.
2 Q. Correct me if I am wrong, but you would have been
3 conscious, I suspect, that there was perhaps a lack of
4 confidence among the minority community in the ICPC. Is
5 that fair?
6 A. I think I had always been a very strong advocate of
7 independent investigation of complaints against police
8 and xxxxxxx had been asked by the Northern Ireland
9 Office -- and this was before the creation of the Patten
10 Commission -- xxxxxxxxxx had been asked to look at
11 this whole area and to make recommendations whereby
12 public confidence could be increased. So I had many
13 meetings with Mr xxxxxxxxx.
14 As it happened, when the Patten Commission was
15 created as a result of what was called the Good Friday
16 Agreement in, I think, April 1998, Mr xxxxx became
17 a member of that commission and finished his work and
18 his recommendation under those auspices, but my
19 understanding is he would have independently mailed the
20 same recommendation. So I was always a very firm
21 supporter of the creation of an Ombudsman's office.
22 I think it is fair to say, Chairman, in context,
23 that the ICPC, looking in a hierarchy, would have been
24 much more active than, for example, in the PCA which
25 existed in the rest of the United Kingdom at that stage.
205
1 The ICPC had a number of very competent supervisors who,
2 in my experience, performed their functions effectively.
3 Q. I should make it clear that my questions are not
4 intended to reflect criticism on the ICPC, but what I am
5 attempting to do, Sir Ronnie, is to reflect perhaps
6 a perception on the part of the Catholic community that
7 the ICPC's powers, in terms of supervising police, were
8 not as strong.
9 A. I agree that there was certainly a clear need to do more
10 to increase public confidence and, in fact, the
11 legislation bringing the Ombudsman's Office into being
12 gave the Ombudsman's Office that dual role of increasing
13 public confidence and also increasing police confidence,
14 because the police federation, for example, throughout
15 the United Kingdom had always been advocates of
16 independent investigation of complaints against their
17 members as well.
18 Q. Yes. Was it a source of frustration to you that when
19 complaints were made, quite often you would have heard
20 the retort that police investigating themselves was not
21 going to get to the truth?
22 A. That was something -- that was a feeling with which
23 I agreed. I have to say that the legislation governing
24 the working of the ICPC gave a chief constable
25 discretion in terms of what matters to refer and what
206
1 matters perhaps not to refer, and I always was
2 determined that in matters of public interest, which
3 clearly this issue was a matter of great public
4 interest, that such matters would be referred
5 automatically by me to the ICPC.
6 Q. In that regard --
7 A. So while I am saying there was undoubtedly a need to do
8 more to increase public confidence, that is not
9 a reflection of a personal lack of confidence in the
10 ICPC on my part.
11 Q. Absolutely, but because of the perceptions or the
12 complaints about the ICPC, do you welcome this Inquiry,
13 this opportunity to enquire into all that went on in the
14 Hamill incident, if I can put it in those terms?
15 A. Yes, I do, particularly on behalf of Robert Hamill's
16 family.
17 Q. Now, more broadly, Sir Ronnie, in terms of policing in
18 Portadown at that time, are you able to offer
19 a perspective on how the politics of the community would
20 have affected police activity in terms of trying to
21 investigate a serious crime such as the Hamill murder?
22 A. I mean, obviously it's a well-known fact that Portadown
23 experienced severe division in the community and often
24 great confrontation between the members of the
25 Nationalist community and members of the Unionist
207
1 community or so-called Loyalist community. So that
2 tension and that conflict obviously had an impact on
3 policing.
4 So quite apart from physically policing the area, we
5 would have been interested in doing all that we could do
6 as an organisation to bring about some sort of
7 reconciliation as well, some sort of meeting of minds,
8 some sort of mutual understanding, particularly in areas
9 like the marches, and we would have been trying to
10 facilitate mutual understanding by both parts of that
11 debate, both sides of that debate.
12 Q. We have heard evidence from Mrs Rodgers, Brid Rogers.,
13 who was a politician in the area, and we heard from her
14 in terms of how, if she was asked, or if she heard that
15 somebody had evidence to offer the police but they were
16 reluctant to come forward, she would not, she said, act
17 as a persuader to press upon them to come forward.
18 She essentially gave evidence to say that really
19 that was a difficult situation and she would just let
20 the person get on with their view.
21 Is that something you experienced?
22 A. I think, I mean, knowing Mrs Rogers, I am certain that
23 would be from a motivation of the person's safety,
24 physical safety. It wouldn't be any willingness not to
25 see relevant evidence passed for investigation. My
208
1 guess is -- and I wasn't aware of that evidence until
2 you have raised it -- the concern would have been for
3 such a person's personal safety, and if that is the
4 case, then I can understand that to a degree, because
5 people publicly identified as giving the police evidence
6 against other people who perhaps live in their own
7 community would, in certain circumstances, undoubtedly
8 be at risk. No doubt about that.
9 Q. Yes. In terms of Portadown at that time we have heard
10 in evidence that intimidation was a factor. We have
11 also heard, I think, that where, as in this case,
12 a Catholic being attacked and killed by the Protestant
13 side of the community or people from the Protestant side
14 of the community, that might lead to a difficulty in
15 extracting evidence from that Protestant side of the
16 community. Is that something you were familiar with?
17 A. Undoubtedly those would be real difficulties for
18 investigators.
19 Q. In terms of initiatives to address these kinds of
20 policing difficulties that existed perhaps elsewhere
21 quite apart from Portadown, was the RUC standing still
22 and letting these matters pass over them or were there
23 initiatives in place to try to improve relationships
24 with communities?
25 A. Yes, there were, and from the very early days of what we
209
1 called the troubles we had created a community relations
2 department, as it was known, in those early days, and
3 building on that and developing it.
4 I personally was involved in many meetings, for
5 example, with the residents group who represented
6 Garvaghy Road, and with the Orange Order, to try to
7 personally bring about some sort of rapprochement, some
8 sort of meeting of minds.
9 The new Secretary of State just appointed at exactly
10 this time we are considering went to great lengths
11 personally, and, in fact, right up to the Saturday night
12 before the Sunday Drumcree March was engaged in talks
13 between the two parties. She had set up bilateral
14 communication in Hillsborough Castle.
15 I was present, but the truth is, Chairman, these
16 folks would not even share the same room. They sat in
17 opposite rooms. I would dip in on request to each room.
18 They would not even sit in the same room to discuss the
19 difficulties.
20 Certainly, as an organisation, we were trying to do
21 our best, and I have described how the Secretary of
22 State on appointment certainly was determined to try to
23 do her best as well.
24 Q. Just finally, Sir Ronnie, I think we have heard evidence
25 from Mr Wood and Mr Mahaffey from the Ombudsman's
210
1 Office. You would remember meeting with Mr Wood around
2 these issues?
3 A. Yes, indeed, yes.
4 Q. What was your view at that time to the Ombudsman coming
5 in and looking at these issues and scrutinising them?
6 A. Oh, something I would have absolutely welcomed and
7 something -- we talked earlier in my direct evidence
8 about Maynard McBurney briefing me about this new
9 opportunity in the investigation and I immediately went
10 to the ICPC. I would have done that in 2000 knowing
11 that they were then a precursor organisation to the
12 Ombudsman's Office, which was in the course of being
13 created.
14 So naturally -- and the legislation, I am pretty
15 sure, which created the Ombudsman's Office, created for
16 the Ombudsman's Office taking over ongoing business
17 already in train by the ICPC. So it would have been
18 absolutely natural and something that I would have
19 welcomed and something I would have been determined to
20 support.
21 MR WOLFE: Very well. Thank you.
22 THE CHAIRMAN: Yes, Mr O'Hare?
23 MR O'HARE: Normally, sir, I would be asking questions of
24 the witness next, but perhaps, sir, I could reserve my
25 position for the minute just in case any matters arise
211
1 subsequently that would affect Mr McBurney?
2 THE CHAIRMAN: Very well.
3 MR O'HARE: I am obliged.
4 Questions from MR McGRORY
5 MR McGRORY: Sir Ronnie, no introductions are necessary,
6 I am sure.
7 A. No, indeed, sir.
8 Q. Our paths have crossed in several contexts but certainly
9 in this case most notably in August 2000 when you
10 notified the Hamill family through me, as the then
11 solicitor for the Hamill family, of the developments
12 that were then ongoing.
13 A. I recollect that, sir.
14 Q. Can I just ask you about some general things, if you
15 don't mind? You have already spoken about the period
16 1997 and the interpretations that were very, very live
17 and of real concern to you as the chief constable, of
18 the political changeover and so forth, and of the need
19 to try to win the support of the Catholic community.
20 Indeed, I would suggest to you that the remark which
21 I think was put to you slightly out of context of
22 Mrs Rogers to the Inquiry is evidence that what she said
23 I am going to say to you and I would ask you for further
24 comment, is: look, her public position always was as
25 a public representative, "Look, if you have something to
212
1 tell the police, you should go to the police", but if
2 a constituent came to her and said, "I can't do that",
3 that was the constituent's decision, and that that was
4 evidence of a real depth of mistrust within the Catholic
5 community of the police.
6 I think you have already agreed with that, that that
7 was something you were trying remedy?
8 A. On my appointment at the end of 1996 I said publicly
9 that was my top priority, attempting to improve the
10 relationship, particularly with the Nationalist
11 community.
12 Q. Of course, in this area, because of Drumcree, this was
13 a really difficult issue?
14 A. It was.
15 Q. Thank you. Can I ask you about some other points of
16 information before I go on to the nuts and bolts of the
17 case? I hope I am not taking these out of context.
18 First of all, in terms of any policy within the RUC
19 for turning what would be regarded as private material
20 into evidential material, that there were mechanisms in
21 place for that, and by that I mean, for example,
22 particularly in the context of the Drumcree riots,
23 television footage of riots or trouble that was going on
24 which the police wanted to use as evidence.
25 A. Obviously such evidence can be very real and, therefore,
213
1 we would take steps to record our own footage where we
2 could. That would be built into the operational
3 planning for events like Drumcree.
4 I have to say that we would have encountered great
5 difficulty and great resistance having the media outlets
6 hand over their stuff to us and they certainly would not
7 do so unless directed to by way of court order, but
8 there were the mechanisms to seek to do that.
9 Q. Indeed, the BBC and UTV and so forth made it very clear
10 that in order that it would maintain its impartiality,
11 if you wanted the material, go to the court and get it?
12 A. That's correct.
13 Q. And you did that?
14 A. From time to time, that's correct.
15 Q. Of course, there is no reason why the same thing could
16 not have been done in respect of, for example, telephone
17 billing records?
18 A. That is correct. There were mechanisms, but again --
19 sorry, I beg your pardon. Again, my understanding, and
20 I haven't been personally involved with any of the
21 supplying companies, there would have been a reluctance
22 on the part of those who had such records to have it
23 publicly known they were handing them over.
24 Q. Oh, of course, but if there was an investigative
25 priority --
214
1 A. Exactly, yes.
2 Q. -- there was a way to deal with it?
3 Another slight issue that has arisen in the last
4 couple of days: in terms of intelligence, that someone
5 that the RUC needed or wanted to speak to who happened
6 to be in the Republic of Ireland, for example, if
7 information came to an investigator that someone they
8 wanted to speak to was somewhere in the Republic of
9 Ireland, there was a good relationship with the southern
10 police in terms of asking them to have a look and see
11 was the person there or to help out?
12 A. Yes. I mean, I certainly had a very good personal
13 relationship with the Commissioner of the Garda Siochana
14 and I think that relationship was reflected throughout
15 the organisation. I would describe us as having a very
16 close operational relationship.
17 Q. For example, if there was an IRA suspect, for example,
18 felt to be on the run or hiding or in the south of
19 Ireland somewhere and you wanted to know his
20 whereabouts, the assistance of the guards could easily
21 have been obtained because of that relationship?
22 A. There would be an appropriate exchange of information
23 between us, yes.
24 Q. Thank you. I want to turn now to one of the burning and
25 key issues in this case, Sir Ronnie, if I may call you
215
1 that, and that is the strategy and methodology employed
2 by Detective Chief Superintendent McBurney in the
3 investigation of an allegation that Reserve Constable
4 Atkinson had tipped off by telephone one of the murder
5 suspects in the Hamill case.
6 Now, you have told us already that Detective Chief
7 Superintendent McBurney, in 2000, came to you before he
8 went to Wales.
9 A. Yes.
10 Q. That is your clear memory?
11 A. Yes, that's my clear recollection.
12 Q. If I could have, please, on the screen, page 181 of
13 Detective Chief Superintendent McBurney's interview with
14 this Inquiry in 2006. I think it is available. I am
15 starting at:
16 "Just to stop you there ..."
17 Do you see that at the top? Michael Stephens says:
18 "Just to stop you there ..."
19 A. Yes, I have that on screen now.
20 Q. "I don't want to stop you in full flow, I must admit,
21 but you had spoken to the chief before you went and saw
22 her.
23 "McBurney: What chief?
24 "Stephens: Chief constable.
25 "McBurney: No.
216
1 "Stephens: Or was it on your return? Because
2 I knew -- you'd just gone on about --
3 "McBurney: No, I didn't speak to anyone. I didn't
4 have to speak to anyone or do all of those sort of
5 things. As the person in charge of the case, as the
6 person in charge of the area, it was my responsibility.
7 I didn't have to ask anyone to do it.
8 "Stephens: Well, the only reason I asked that is
9 simply that there is a note from the DPP which was
10 served on you, as far as that was concerned, which
11 actually is recorded 22nd June off the top of my head."
12 If we could go over the page, please, 182:
13 "McBurney: Yes.
14 "Stephens. A briefing from the chief constable
15 about this witness. It would appear that you briefed
16 the Chief Constable and he in turn briefed the DPP.
17 "Murphy: That's 22nd June 2000.
18 "Stephens: June 2000. That's what I'm talking
19 about now.
20 "McBurney: When did I -- when did I speak to her?
21 "Stephens: You spoke to her on 20th June 2000.
22 "McBurney: And when did this thing with the chief
23 constable come up?
24 "Stephens: Well, it -- 22nd June.
25 "McBurney: But that's days afterwards, two days
217
1 afterwards.
2 "Stephens: Yes. I just wanted to know when you
3 spoke to the chief constable, before you went or after
4 you went.
5 "McBurney: Oh, no, after I came back."
6 Now, that's what Detective Chief Superintendent
7 McBurney told the Inquiry in 2006. That is not correct.
8 A. Well, my recollection is he came to me, "This
9 opportunity has arisen". My clear recollection is it
10 was before he actually interviewed the witness.
11 Q. Now, of course, that would make sense, I am going to
12 suggest to you, because you spoke to the Permanent
13 Undersecretary on 9th June, and you have already had
14 a look at his note of it on 12th June.
15 Isn't that correct?
16 A. Yes, I have seen that.
17 Q. On 9th June -- perhaps we could have that on the screen
18 at page [39624].
19 Now, at point 6, the Permanent Undersecretary raises
20 with you the detail. He says -- this is what he says
21 you said to him.
22 A. Uh-huh, yes.
23 Q. "As to the allegation that a police officer had advised
24 a leading suspect to burn the clothing that he had worn
25 that night to avoid forensic examination, Ronnie said
218
1 that:
2 "The police officer was Reserve Constable Atkinson.
3 "The leading suspect in question had been charged
4 with murder but the charge had been dropped.
5 "The claim was made in a statement by the then
6 girlfriend of the leading suspect (subsequently
7 withdrawn).
8 "The police believed that the claim had prima facie
9 credibility."
10 Going over the page, [39625], next:
11 "The allegation had been exhaustively investigated
12 under the correction of the ICPC's most competent member
13 (now dead)", and so on.
14 Then you went on in the subsequent paragraphs to
15 give some further detail in terms of the alibi. We will
16 come to that in a moment.
17 A. Uh-huh.
18 Q. But you have been able to give the Permanent
19 Undersecretary, on 9th June, a fair bit of detail there.
20 A. Yes, indeed. That would have been on the basis of
21 briefings from, I am pretty certain, the late
22 Chief Superintendent Maynard McBurney.
23 Q. You see, you must have got it from somewhere.
24 A. Yes.
25 Q. Obviously the Permanent Undersecretary was very keen --
219
1 A. No, indeed. Absolutely.
2 Q. -- for an explanation. If I can tell you the sequence
3 of events was that, on 1st June, the coroner announced
4 that he was not having an inquest, and this attracted
5 some considerable degree of publicity. Do you remember
6 that?
7 A. That's why I was trying to get to the bottom of this use
8 of the word "gem". I couldn't --
9 Q. We will come -- I want to come to that later.
10 A. Yes. Go on.
11 Q. Can we deal with just the strict chronology, if you
12 don't mind?
13 A. Yes.
14 Q. On 1st June, the coroner made his announcement that he
15 was having no inquest. Do you recall if this attracted
16 considerable publicity?
17 A. I don't particularly personally recall that.
18 Q. You see, I am suggesting to you that it did and, in
19 fact --
20 A. I mean, I am not disputing that. I am just giving my
21 personal recollection as I sit here today.
22 Q. That would be what prompted the Permanent Undersecretary
23 to ask to speak to you, because here we had a situation
24 where there is significant disquiet about the Hamill
25 case. There is already pressure for a public inquiry.
220
1 Then on 1st June the coroner says he is not having
2 an inquest.
3 A. Well, what would happen and what did happen was, if the
4 Permanent Secretary (sic) contacted me to seek
5 a meeting, he would outline to me the basis for wanting
6 the meeting and I would then seek information to be able
7 to impart to him. So that's what would have happened.
8 Q. Yes.
9 A. I can't specifically recall exactly when and from whom.
10 My recollection is it was Chief Superintendent McBurney,
11 the sort of detail.
12 Q. But he would have been the likely candidate for you to
13 ask, because you would have made enquiries around that
14 time, "Who is dealing with this?"
15 A. No, it could well have been the regional assistant chief
16 constable as well. Either would have been pretty
17 natural. He then would have probably gone to the
18 investigating officer and relayed it back.
19 Q. But in any event, your recollection is that you
20 personally spoke to Detective Chief
21 Superintendent McBurney before he went to Wales?
22 A. That's my recollection. My recollection is it was
23 before he had interviewed the witness, which was my
24 purpose in contacting the Director of Public
25 Prosecutions to determine or to discuss what the
221
1 investigative strategy should be. That is my personal
2 recollection.
3 Q. Indeed at page [39693] at point 7, and now we can deal
4 with the issue of "the gem", but before we deal with
5 that word, this is the meeting on 21st July between
6 a senior civil servant of the Northern Ireland Office
7 and you which preceded a further meeting with the ICPC
8 representatives.
9 A. Yes. The person involved was not from the Northern
10 Ireland Office. He was a person I didn't know at all.
11 I think he was asked to do this -- I think he was
12 a retired senior civil servant who was asked to do this
13 specific piece of work.
14 Q. Whoever it is says that:
15 "The chief constable said that when the coroner had
16 given 'the gem' to Robert Hamill's family solicitors, he
17 himself had 'pushed and pushed' and the re-interview of
18 Mrs McKee followed ..."
19 Leaving aside the emotive term "gem", which is not
20 what concerns me here.
21 A. No, I understand.
22 Q. What concerns me, Sir Ronnie, is that you pushed -- you
23 have said to this official, or whoever he was, that you
24 "pushed and pushed" for this interview to take place.
25 A. Well, these are his words. I mean, when I say -- he is
222
1 ascribing that phrase "pushed and pushed". I certainly
2 did not encounter any difficulty. Quite the opposite.
3 The late Detective Chief Superintendent McBurney
4 appeared to me to be absolutely delighted to have a new
5 opportunity, because he had indicated to me that he had
6 always suspected that the alibi offered was not a real
7 alibi and he was very pleased.
8 So to suggest I pushed and pushed in any way that
9 there was any resistance is absolutely not the case.
10 Q. Are you saying he had always said he did not believe it
11 was a real alibi?
12 A. No, no. I am saying when he talked to me about this new
13 opportunity.
14 Q. He suspected -- he never believed the alibi?
15 A. He had serious doubts about it.
16 Q. Yes, but it is unlikely that the author of this
17 document -- and hopefully we will hear from him or her
18 before the end of proceedings -- would have used the
19 words "pushed and pushed", that you said you "pushed and
20 pushed".
21 In other words, you had to seriously push to get
22 this done?
23 A. I didn't -- he is using this phrase. If he is using it
24 in the context that there is any implied resistance
25 which I was encountering, there was absolutely no such
223
1 resistance.
2 Q. But, of course, if you had discovered in early June 2000
3 that something wasn't done that should have been done to
4 detect this constable, you would have pushed?
5 A. Yes.
6 Q. You would have said, "Get a move on. Get this done".
7 A. Yes, absolutely, and if the circumstances were such that
8 it was seen as a new opportunity, an opportunity which
9 hadn't previously existed, then I would certainly have
10 been keen to push for that opportunity to be seized.
11 Q. Perhaps we could look at the next page, [39694],
12 paragraph 13. Now, this is a record of a later part of
13 a meeting. I don't think you were present, but the same
14 official goes on then to speak to the ICPC immediately
15 after speaking to you. This is his note of his
16 conversation with the ICPC in respect of who initiated
17 this:
18 "I asked when and how the current criminal
19 investigation had got underway", which is what I am
20 asking you now, "and Mr [blank]", who is someone from
21 the ICPC, "gave virtually the same account that I had
22 earlier heard from the chief constable, ie that the
23 chief constable had himself pressed it when the coroner
24 had decided to drop the inquest."
25 A. I can tell the Inquiry categorically that my drive to
224
1 get this opportunity seized was as a result of contact
2 with Detective Chief Superintendent Maynard McBurney.
3 Q. And that you did press him to move on Andrea McKee in
4 June of 2000?
5 A. I did, but not in the face of any resistance whatsoever
6 on his part.
7 Q. I am not suggesting for a moment he resisted it in
8 June 2000, but that it was your suggestion?
9 A. Well, if -- oh, no, no. I think it was something he was
10 fully intending to do anyway. He saw it as his
11 opportunity. He would have been wondering, "What is the
12 best approach? Is it a case of this person being
13 treated as a suspect or is it a case of this person
14 being treated as a witness?"
15 Q. Let's have a look at this --
16 A. My -- if there was a sense of urgency on my part, it
17 would have been in relation to what was described as
18 a new opportunity and perhaps a fear on my part that it
19 would only have been a temporary opportunity.
20 Q. Absolutely. And that it needed to be acted upon with
21 all due haste?
22 A. Yes.
23 Q. Now, can I ask you a few questions then, chief
24 constable? Would it be of surprise to you to learn that
25 the separation of the McKees which led to the
225
1 opportunity had been known to investigative police since
2 October 1999?
3 A. That was not my impression. My impression was that it
4 was a much more -- I don't -- I was not aware that the
5 police knew of this in October 1999.
6 Q. One can presume that, had you been made aware in
7 October 1999 that this opportunity had opened up, you
8 would have pressed, as you did in June 2000, for action
9 to be taken immediately?
10 A. Yes, I would have. If this had been presented to me as
11 an opportunity, I would have wanted that opportunity to
12 be seized at the earliest opportunity unless, unless
13 there was some part of the investigative strategy of
14 which I was not aware -- and I wouldn't be personally
15 involved in the drawing up of a specific investigative
16 strategy -- but unless there was perhaps good reason,
17 perhaps good reason in terms of not alerting other
18 witnesses or other potential witnesses or other
19 potential suspects.
20 We are in the realms of speculation on that, but
21 there could well be reasons related to the investigative
22 strategy being adopted, but I don't know, I am only
23 speculating.
24 Q. I want to ask you a few more questions, if I may, just
25 about the overall strategy here, because you are not
226
1 only the chief constable of the force at the time, but
2 you are, of course, if I may say so, a policeman of
3 unparalleled experience and a former Chief Inspector of
4 Constabulary. Isn't that correct?
5 A. I became that subsequently.
6 Q. Now, the strategy that was developed in terms of this
7 alibi, let me just put a scenario to you. The
8 information came into the system on 10th May 1997 from
9 Tracey Clarke, the estranged girlfriend of one of the
10 murder suspects, that the murder suspect had been tipped
11 off by Reserve Constable Atkinson about how to deal with
12 his clothes in terms of being detected as one of the
13 murderers.
14 Do you follow me?
15 A. Yes, I do.
16 Q. Then what happens is that the telephone records are
17 sought under the protocol with the phone companies and,
18 lo and behold, by 16th May there is telephone contact
19 between the reserve constable's house and the house of
20 the murder suspect. So, therefore, that's at least
21 consistent with the information that has been received.
22 Then what happened was nothing, until September,
23 when the first of two interviews took place under the
24 supervision of the ICPC in respect of the complaint
25 allegations that police in the Land Rover had done
227
1 nothing.
2 Towards the end of that interview, the issue of the
3 reservist's telephone records was raised with him by
4 Detective Chief Superintendent McBurney. He was asked
5 whether or not he would mind if they looked at his
6 telephone records.
7 Then in the next interview in October he produced
8 the telephone records, and, when asked to explain the
9 records to Hanvey's house, he then gave the McKees,
10 husband and wife, as alibis, said they had been staying
11 overnight and that they had made the call and that it
12 had nothing to do with him -- that was the first call
13 around breakfast time -- and that insofar as a second
14 call at 4 o'clock that day from his home to Hanvey 's
15 home was concerned, he put forward his wife as an alibi.
16 Now the problem with all of this is, Sir Ronnie,
17 that Andrea McKee was the person who introduced
18 Tracey Clarke to the RUC as a witness against the
19 murderers, including Hanvey, and the fact is that we
20 have already heard from Detective Inspector Irwin that
21 they never believed this alibi, because of the very fact
22 that she had come in with Tracey Clarke and supported
23 her in the allegation that she had made against
24 Atkinson, sat with her while she made it. They have
25 never believed it. As far as they were concerned,
228
1 Atkinson was lying about that.
2 Now, I am suggesting to you that there is
3 a fundamental flaw in the way in which this was
4 approached, in that what happened in September was that
5 Reserve Constable Atkinson was given the opportunity to
6 give an alibi when he could have been confronted with
7 the evidence of the phone calls and perhaps forced into
8 giving an even shakier alibi or stumbled into any sort
9 of an answer that could have opened up investigative
10 opportunities, that that was the time that he should
11 have been confronted.
12 Now, what do you say about that?
13 A. Well, I say that without knowing what was in the late
14 Chief Superintendent McBurney's mind and in the mind of
15 the investigative team in terms of a strategy -- and it
16 is the case that sometimes you don't rush in, sometimes
17 by rushing into an investigation at too early a stage,
18 you can damage the prospect of success. So sometimes
19 a longer game is played. But I find myself, Chairman,
20 in the realms of speculation without knowing the detail
21 of the strategy that was being pursued.
22 Q. I am suggesting to you that's pretty much it. I mean,
23 the other problem is this, I suggest to you, Sir Ronnie,
24 that possibly there was a strategy to allow her to give
25 a fake alibi and then that could be used to return to
229
1 Reserve Constable Atkinson on the basis that he had put
2 forward a fake alibi once she was confronted with the
3 fact that she had to be telling lies, because she said
4 nothing about any of this when she sat with
5 Tracey Clarke when she gave initial information.
6 Would that not have been a good idea back in 1997?
7 A. Again, I find myself -- I find ourselves in the realms
8 of speculation. I think the late Chief
9 Superintendent McBurney is probably the only one who can
10 answer those questions. I would be speculating as to
11 his approach in the absence of knowing in detail, and it
12 wouldn't be my position, as chief constable, to know in
13 detail what his exact approach to this particular
14 investigation was.
15 Q. It doesn't sound like a great strategy, does it?
16 A. Well, I can tell you that I certainly considered
17 Mr McBurney a very experienced and very dedicated, very
18 hardworking, professional police officer and detective.
19 Q. You are not going to be drawn on his strategy here, are
20 you?
21 A. Well, it is not that I am not going to be drawn. Simply
22 I can't be drawn on it, because I don't know the details
23 of the strategy he was adopting and deploying at the
24 time.
25 Q. Well, you are, of course, aware that nothing then
230
1 happened until -- for quite some time.
2 At the end of 1999 then, the Ombudsmen people were
3 appointed, Mr Wood and Mr Mahaffey so and so forth.
4 They came to you then and they had a strong view about
5 Mr McBurney's strategy that was not terribly
6 complimentary. Isn't that right?
7 A. They came to me -- I think it was later. I think 2000.
8 You have said the end of 1999. I think they were
9 created at the end of 2000.
10 Certainly, when Mr Wood came to me and expressed
11 reservations, I moved immediately, and I moved
12 immediately to replace Chief Superintendent McBurney
13 with Chief Superintendent Stewart as the investigating
14 officer.
15 Q. You see, one of the problems about this is that this is
16 a very serious allegation, do you agree?
17 A. It is an incredibly serious allegation that a police
18 officer would engage in conspiracy to pervert the course
19 of justice in relation to a potential murder charge. It
20 is a very serious allegation.
21 Q. As a chief constable at that time, that could have had
22 serious ramifications.
23 A. Absolutely, if this were the case. I think I have said
24 in other papers that, if that were the case, I wouldn't
25 have wanted such a person within a thousand miles of the
231
1 organisation, and that's my very strong view, but I was
2 confident in the people who were dealing with this, both
3 from an investigative point of view, criminally, and,
4 indeed, an investigative point of view from the
5 potential of any police misconduct under the supervision
6 of initially the ICPC and subsequently the Police
7 Ombudsman's Office.
8 Q. You see, Detective Chief Superintendent McBurney took
9 a record that he spoke to you twice on 10th May 1997,
10 which was the day that the Tracey Clarke information was
11 formalised into a statement. You have already accepted
12 now that those phone calls took place.
13 A. I certainly have no recollection of them, but I think,
14 was that not the day on which Robert died?
15 Q. No. It was two days later.
16 A. Sorry.
17 Q. Tracey Clarke came in on the Friday night, 9th May?
18 A. Right.
19 Q. The next day was the Saturday. The statement was taken
20 in the early hours of the morning. Twice during that
21 day you spoke to Detective Superintendent McBurney.
22 A. What I have said is -- and it was referred to me
23 earlier -- while I have no recollection,
24 Maynard McBurney is someone whose honesty I would accept
25 absolutely. If he says he spoke to me, then I accept
232
1 that.
2 What exactly we spoke about -- because clearly it
3 would have been in the fairly immediate aftermath of
4 Robert's death --
5 Q. What I am going to suggest -- Maynard McBurney, by the
6 way, has not said he told you about the tipping-off
7 allegation.
8 A. Right.
9 Q. He doesn't remember whether he told you or not?
10 A. I mean, through this process I think I should say
11 I quite deliberately have not contacted other witnesses
12 or spoken to them. I don't know what ...
13 Q. But as the chief constable who spoke to the detective
14 chief superintendent twice on the day on which that
15 information came to that detective chief superintendent,
16 surely you would have expected --
17 THE CHAIRMAN: What information are you speaking of? The
18 tipping off or the implicating of people in the murder
19 or both?
20 MR McGRORY: Yes, the tipping off. The tipping off.
21 Specifically the aspect of what Tracey Clarke said about
22 Reserve Constable Atkinson tipping off Hanvey, that
23 surely, on 10th May, you would have expected your chief
24 superintendent to have told you, "Listen, we have -- on
25 this murder we have some good information here. We have
233
1 a statement from someone who is naming people, who is
2 an eye witness, who can pinpoint some of the murderers,
3 and she has told us that one of our reservists has been
4 in contact with one of these people".
5 A. Well, he certainly didn't tell me that at that time.
6 Now, I don't know at that time, in other words, on the
7 actual day that was received, what weight he might have
8 been attaching to it without further investigation,
9 without corroboration, and it might well be that
10 sometimes people don't want to give you misleading
11 information without doing further work to develop it.
12 That might be the reason, but, again, I am sorry.
13 I am in the realms of speculating in terms of what he
14 did or didn't do or what may have been his reason for
15 doing or not doing things.
16 Q. Do you not think the chief constable needs to be told
17 immediately that one of his officers has been tipping
18 off a murderer?
19 A. I am very clear that I would have wanted to have known
20 that.
21 Q. But he didn't do it, because, if he did, you would have
22 done a lot more, wouldn't you, on 10th May?
23 A. I am not sure what more could have been done. That's
24 a matter for the investigation. The whole issue had
25 already been referred to me -- sorry -- by me to the
234
1 ICPC. Maynard McBurney was conducting his enquiries
2 under the supervision of the late Mr Murnaghan and
3 I would have expected that that was well in hand.
4 I had no reason to doubt Maynard's ability or his
5 determination to get to the bottom of it.
6 Maynard McBurney was an individual, I can tell you, who
7 would not have tolerated such behaviour within the
8 organisation that I know he was very proud of.
9 Q. That's why I am suggesting to you he would have told
10 you. He would have looked for guidance. He would have
11 said, "Chief, we've got a corrupt policeman here. What
12 do I do?"
13 A. I don't think -- no, it wouldn't be the case that he
14 would have looked for guidance. Maynard McBurney was
15 a very experienced detective and, on that basis, it may
16 well be that he wanted to do more, wanted to get the
17 facts right. If this was a young girl who suddenly had
18 become estranged from her boyfriend, who may have had
19 some axe to grind, was there any corroboration of what
20 she was alleging?
21 Again, we are back in the realms of speculation,
22 which I honestly don't think is helpful.
23 Q. At the very least, though, you were told on the Monday
24 morning at the meeting by Assistant Chief
25 Constable Hall?
235
1 A. Let me perhaps describe the main purpose of these
2 meetings on Monday morning, and I have described in my
3 statement that they alternated, and this is the
4 operational meeting, actually the main purpose of those
5 was to look forward.
6 Of course, the individual officers, be they the
7 Assistant Chief Constable in charge of Crime Department,
8 the Assistant Chief Constable in charge of
9 Special Branch or the Territorial Assistant Chief
10 Constables, of course, they would give you briefings on
11 matters of interest within their area, but the main
12 purpose of those meetings was to look forward and plan
13 for the future.
14 I have described that -- you have described yourself
15 the situation in Portadown. We were well into the
16 so-called marching season. We were looking ahead to
17 Drumcree. We had just had a new Secretary of State
18 appointed or at least were just about to have one, if it
19 hadn't happened by that time.
20 So it could well have been -- and I have said, and
21 it is the absolute truth, that I have no personal
22 recollection of any briefing -- the case that the
23 briefing was such that, "Everything is in hand. The
24 matter has already been referred to the ICPC for
25 supervision".
236
1 As I say, I had extremely experienced and
2 professional colleagues, an outstanding deputy chief
3 constable, similarly, an assistant chief constable in
4 the Complaints Department and Mr Hall himself, the
5 assistant chief constable in charge of that region and
6 Detective Chief Superintendent McBurney, all of whom
7 enjoyed my trust and confidence and for very good
8 reasons
9 Q. But would that information coming to the table of the
10 Monday meeting of the assistant chief constables not
11 have set off serious alarm bells that you had a serious
12 situation on your hands of a corrupt policeman on the
13 ground in Portadown of all places?
14 A. It depends on the probity of the person who is saying
15 this. What I am saying is, at that very early stage,
16 I don't know what weight they would have been attaching
17 to a young girl estranged from her boyfriend and what
18 axe she may have had to grind.
19 But I don't know if this was the case and I can't
20 know from within my own personal knowledge.
21 Q. I have to suggest to you, Sir Ronnie, that that's
22 a shocking admission; that here we have around
23 a table the chief constable, his deputy and his
24 assistant chief constables being told, "We have a murder
25 on our hands, and in the middle of all of this is
237
1 a policeman tipping off all the murderers", that
2 immediate and urgent action needed to be taken and that
3 investigation needed to be treated with absolute
4 priority?
5 A. There is certainly no admission. I would be confident
6 that that priority was present and that that
7 investigation was being conducted by very experienced,
8 dedicated and professional people.
9 Q. You see, the problem is you are telling us you heard no
10 more about it until June of 2000 when Maynard McBurney
11 comes to you and tells you that an opportunity has
12 opened up.
13 A. I am telling you my recollection, and you have seen it
14 in my original statement, is that I have no recollection
15 of Mr Hall actually briefing. He would certainly have
16 briefed, because I think Robert had passed away a short
17 time before that meeting. He certainly would have been
18 briefing. I have no recollection of being briefed
19 specifically on the allegations relating to Reserve
20 Constable Atkinson.
21 Q. Do you not think that's a shocking indictment of how the
22 RUC viewed the allegation at the time?
23 A. I can't say how it was viewed at the time by those who
24 received it. I think it is absolutely appropriate that
25 they would have wanted to carry out some further work to
238
1 establish the probity of what was being alleged.
2 Q. You see, I have to suggest to you --
3 A. I want to emphasise again that I personally -- and all
4 of these officers that we have mentioned, there is not
5 one of them who would want an individual guilty of such
6 behaviour anywhere near the organisation. They would
7 have been determined to do all that they could to root
8 out such a person if they had behaved in the way
9 alleged.
10 Q. At least you would have expected the chief constable or
11 a designated deputy to take a personal interest in the
12 case, to get regular reports, regular briefings as to
13 how it was going in respect of the investigation into
14 the tipping off?
15 A. Look, the structure was that you had an assistant chief
16 constable in charge of that region, and all of those
17 things that you say should be in place were in place.
18 Q. You see, the question of suspension has been raised.
19 You talk about how robust you were and you told the
20 Permanent Undersecretary how robust you were capable of
21 being if you had someone whom you regarded as a crooked
22 cop in the organisation. There was no effort to suspend
23 this officer, or, so far as we can see, even to consider
24 suspending him.
25 A. Again, you come back to an investigative strategy.
239
1 Sometimes to move -- first of all, I remember, I think,
2 possibly a year after this case and with no connection
3 to this case, but I remember seeking counsel's opinion
4 as to an exact list of criteria that should be applied
5 when suspensions are being considered. So it is
6 something that's taken very seriously. It is something
7 that I have described is not the responsibility of
8 a chief constable, and quite deliberately so. The --
9 Q. Yes. Could you just have a look, please --
10 THE CHAIRMAN: Just a moment. Sir Ronnie has not finished
11 his answer.
12 MR McGRORY: Sorry. My apologies.
13 A. It is just to re-emphasise that in British policing the
14 deputy chief constable is the disciplinary authority.
15 So the assistant chief constable in charge of Complaints
16 and Discipline, and the deputy, would make such
17 decisions. The idea would be to keep the chief
18 constable, if possible, free from an amount of knowledge
19 that that chief constable then could not sit in
20 an appellate capacity in any disciplinary proceeding.
21 MR McGRORY: Yes. Could we have a look, please, at
22 page [73378]? This is a document -- I am sure you
23 recognise this book, the guidance to the chief constable
24 on police complaints and discipline procedures. Sorry,
25 Sir Ronnie. It is this green book?
240
1 A. It is on the screen now.
2 Q. At 11.6, this is the chapter on disciplinary
3 arrangements for officers up to and including chief
4 superintendents. What this says is:
5 "It is recognised that in certain circumstances the
6 chief constable will of necessity have at least some
7 knowledge of a case while it is still under
8 consideration. For example, where the matters raised
9 are prima facie serious and would amount to
10 a substantial criticism of the force or where members of
11 higher rank are involved, the chief constable should
12 keep himself informed of the progress of the
13 investigation. There may also be other cases where
14 a deputy or assistant chief constable may wish to
15 consider seeking the views of the chief constable, for
16 example, where he is considering calling for
17 an investigating officer from another force, or if he is
18 in disagreement", and so forth.
19 The disciplinary codes to which you adhered
20 themselves envisage a situation, Sir Ronnie, where the
21 chief constable in certain cases where the very
22 reputation of the force is at stake --
23 A. Yes.
24 Q. -- should involve himself or keep himself informed,
25 regardless of these procedures, of what is going on.
241
1 A. What I would say about the case we are considering, the
2 sad case of Robert's death, I actually reached a point
3 of having a degree of knowledge of the case that, were
4 there to be any disciplinary proceedings, I would have
5 debarred myself from them.
6 Q. But the problem is, while you say there was a system in
7 place for somebody else to do that, consider suspension,
8 they did not do that. It was not done by your deputy
9 either.
10 A. No.
11 Q. It is at least open to a chief constable to say, "How is
12 the case against Atkinson going? Is he still on the
13 street? Is he suspended yet?" without necessarily even
14 involving yourself in the decision to suspend, at least
15 to know what's going on in your own force.
16 A. I can't give you the chronology, but they reached
17 a point -- my understanding is that this person went
18 sick and was not on the street for a very prolonged
19 period, and when these issues were brought to my
20 attention at some stage, but I recall seeing a document
21 that I wanted to know should he return, should he be
22 attempting to return to duty.
23 Bearing in mind these regulations with which I am
24 familiar that you have drawn to my attention,
25 I certainly had reached a point where I would have
242
1 disbarred myself from any subsequent disciplinary
2 proceedings. My understanding is he never resumed duty.
3 THE CHAIRMAN: Just remind us, Mr McGrory, will you? As
4 I remember, Atkinson went sick the day after the
5 interview and never returned to duty. Is that right?
6 MR McGRORY: I think that's right, sir. That's my own
7 memory of that.
8 THE CHAIRMAN: Thank you.
9 MR McGRORY: Certainly between 10th May and the day after he
10 was eventually confronted with the allegation that he
11 had tipped somebody off, that there were compromising
12 phone records and took sick, there was a period of
13 months when the RUC was aware of the allegation and no
14 effort was made to suspend him.
15 A. Again, I think it is very important to come back to:
16 what was the investigative strategy? Were they trying
17 to give this person enough rope? Were they pursuing
18 other possibilities? I am not in a position, I have no
19 personal knowledge of the exact investigative strategy
20 being adopted for that particular strand of ...
21 Q. Has somebody being sick got a relevance to whether or
22 not they should be suspended? Is there some rule that
23 you can't consider suspension just because they are
24 sick?
25 A. Well, there are -- no, there is nothing to stop
243
1 a suspension. You used the expression, "Was this person
2 on the street?" and I had said to you the person was not
3 on the street. The person was not involved in policing.
4 Q. But at least, had he been suspended, even though he was
5 sick, that would have sent a message, would it not,
6 that, "This is a serious investigation and you need not
7 expect to be treated as one of our officers while this
8 is being investigated"?
9 A. Yes, but all the weight of the evidence would have to be
10 considered. You know, everyone is entitled to absolute
11 fairness in the approach. So the weight of the evidence
12 against such a person, damning though the alleged
13 behaviour is, the weight of the evidence to support that
14 alleged dreadful behaviour would have to be considered
15 as part of the reckoning as to whether it is appropriate
16 to suspend, and I am saying yet again I had confidence
17 in the people who were in a position to make such
18 decisions.
19 Q. I want to turn now, Sir Ronnie, to the correspondence
20 that you had with the Secretary of State, if I may. I
21 will try to make this as painless for us all as
22 possible. We have looked at this point with a number of
23 witnesses. There are a number of letters and so forth,
24 but the Secretary of State, before we put anything up on
25 the screen, wrote to you on 28th November 1997, having
244
1 had a meeting with the Hamill family on 24th November,
2 during which the family conveyed to her, as she had
3 previously in writing, that they had heard that there
4 were connections between some of the police in the
5 Land Rover and those who were involved in the murder of
6 Robert.
7 She wrote to you on 28th November. The letter
8 begins on page [60487]. That's the beginning of it.
9 I think you have seen it. Over the page at [60488], the
10 bottom paragraph, she says:
11 "I should be grateful, therefore, if you would
12 supply me with as much detail as possible on the points
13 in the attached letter and annexe so that I can reply to
14 Diane Hamill."
15 Do you see that?
16 A. Yes, I do.
17 Q. At this point, it is as much as the Hamill family know
18 that there may be some connection here. They are
19 utterly unaware at this point of the fact that
20 Tracey Clarke has come into the police and has told them
21 that she believes that she had been told by Hanvey that
22 Atkinson had been tipping him off and keeping him
23 posted. They are unaware of that.
24 Now, the Secretary of State has asked you for as
25 much detail as possible. I suggest that what happens
245
1 next is that this goes to crime secretariat. Crime
2 secretariat seek some information. It works its way
3 through a Detective Superintendent Hooke, I think, down
4 to Detective Inspector Irwin.
5 At page [16502] we have what Inspector Irwin told,
6 at point 5, the crime secretariat about this matter,
7 which was that:
8 "A DPP file is being submitted which relates to
9 an allegation of a link between one of the accused and
10 one police officer."
11 That was, in fact, the bare bones of it. So he sent
12 that up to the crime secretariat on 15th December.
13 On 18th December, another document comes into
14 existence, which is a memo to you from your staff
15 officer. It is signed by ACC RC White. It is dated
16 18th December. The last page of it is [15389]. Do you
17 see his signature on that?
18 A. Yes, I do.
19 Q. What would his involvement have been?
20 A. Mr White was the assistant chief constable in charge of
21 CID. So, as such, he would have been the link, if you
22 like, between the organisation and the office of the
23 then Director of Public Prosecutions. So he would have
24 received investigation files and passed them to the
25 director for consideration if there were to be
246
1 consideration of criminal charges.
2 Q. He, of course, also would have been at the meeting on
3 Monday, 13th May?
4 A. He would.
5 Q. So he would have been privy to the fact that there was
6 a serious allegation about the conduct of a police
7 officer?
8 A. Well, I can't say that he was privy to it, because
9 certainly my recollection is such that, at that meeting
10 in May, I was not briefed about it. That's my
11 recollection. So what Mr White was privy to I am not in
12 a position to say --
13 Q. In any event --
14 A. -- at that time.
15 Q. -- if you look at the preceding page, [15388], point 7
16 at the very bottom, he says to you:
17 "Relationship between accused and police officer.
18 "This matter is the subject of a criminal
19 investigation and a file will be forwarded to the DPP in
20 due course."
21 So taking that much of his note --
22 A. I beg your pardon. Can I read what he goes on to say:
23 "It would ..."
24 Q. Yes, you can. Overleaf, [15389]:
25 "It would not be prudent to make any comment about
247
1 this at this stage nor pre-empt the decision of the
2 DPP."
3 A. Sorry.
4 Q. But at least in terms of the first sentence, he is
5 telling you, yes -- he is acknowledging there is
6 an issue about the relationship between accused and
7 a police officer. So he is telling you it is the
8 subject of an investigation. So there you are being
9 told in the context of the Secretary of State asking for
10 information that, "Yes, there is an investigation into
11 a police officer."
12 Do you accept that you were being told that that's
13 what the situation was?
14 A. Yes, I do accept that.
15 Q. Did that alert you? The information comes in on
16 10th May. It is conveyed to the chief constables, ACCs
17 on Monday, 13th May. The Secretary of State is asking
18 questions about it. You say you have forgotten about it
19 by now. ICPC are involved, as far as you are concerned.
20 A. I am not saying I have forgotten about it --
21 Q. Okay.
22 A. -- and I wouldn't want such a phrase to indicate any
23 lack of urgency or lack of --
24 Q. No, but it is not on your radar?
25 A. That's correct.
248
1 Q. But now it is brought to your attention again. Do you
2 see that?
3 A. It is brought to my attention in terms of the phrase
4 being a link between a police officer and some of the
5 suspects.
6 What I would draw attention to is the fact that it
7 is being thoroughly investigated. That investigation is
8 subject to supervision and a file will be prepared for
9 the DPP's consideration.
10 So again, I come back to the people in all of these
11 positions were very professional police officers and
12 knew exactly what they were doing.
13 Q. What I am going to suggest to you -- I want to make this
14 clear, Sir Ronnie -- is what you should have done at
15 this point is ask for more information about this.
16 "What is going on", in December, "about this
17 investigation? How is it going?"
18 A. Again, I come back to these Monday morning briefings and
19 the people concerned would have been briefing me
20 regularly on issues that were very pertinent to their
21 area of responsibility.
22 Q. You see, you wouldn't have needed to have asked if you
23 already knew, would you? If you knew what was going on,
24 on 18th December, you wouldn't have needed to have
25 asked.
249
1 A. That's correct. If I did know the detail.
2 Q. So I am suggesting to you either you knew and did not
3 need to ask, or you should have asked.
4 A. I don't accept that. I had people of very high
5 professionalism and skill in all of those positions and
6 I had trust in them.
7 Q. You see, then we go to what the Secretary of State was
8 told, and your reply is dated 23rd December. It begins
9 on page [15375]. You deal with this issue on
10 page [15376] under the heading, "Relationship between
11 some officers and some of the defendants". Now let's
12 just begin with that.
13 The document from Inspector Irwin to Hooke made it
14 clear there was an allegation against a specific officer
15 in relation to a specific defendant. The document which
16 ACC White sent to your office on 18th December also
17 referred to a specific officer and a specific defendant,
18 but the reply you gave to the Secretary of State, the
19 heading of it, refers to the general.
20 A. Could I go back to the Secretary of State? Is that
21 perhaps her phrase in her original correspondence?
22 Q. It may be, yes. It may be. The letter I referred to
23 does not set it out chapter and verse. I think that is
24 correct actually. That's what she has been told by the
25 Hamill family, of course.
250
1 A. The response to the Secretary of State would be set out
2 with headings that she had adduced. So that would be
3 the reason for that heading.
4 THE CHAIRMAN: This is to relate the response to the letter.
5 MR McGRORY: Absolutely.
6 MR McGUINNESS: If I can assist, sir, at [60819] is the
7 letter -- sir, I represent Sir Ronnie -- that the
8 Secretary of State covered to Command Secretariat. It
9 refers to -- it is a letter sent on behalf of or by
10 Miss Diane Hamill. It may be of assistance to take
11 Sir Ronnie to paragraph 5 in that letter.
12 MR McGRORY: Absolutely.
13 THE CHAIRMAN: The question is simply had these alleged
14 links been investigated.
15 A. And the phrase is actually the Secretary of State's
16 phrase. So when referring back to her query, that's why
17 her phrase would have been used.
18 THE CHAIRMAN: Yes.
19 MR McGRORY: Oh, of course, because that's all the Secretary
20 of State was told by the Hamills, that they had heard
21 about connections between the officers and the suspects.
22 She was utterly unaware of the fact, in fact, there was
23 information in the police system and there was
24 an investigation into a specific officer which had some
25 basis. She did not know that when she wrote to you. Do
251
1 you accept that?
2 A. I accept that.
3 Q. Your reply was not making her any the wiser.
4 THE CHAIRMAN: That's quite incorrect. If you read the
5 reply, he says, "It is being investigated" and that's
6 all the Secretary of State had asked.
7 MR McGRORY: Well, let's put it this way, Sir Ronnie. It is
8 being economical with the detail.
9 A. Absolutely not. The Secretary of State has a very
10 important role and a chief constable has a very
11 important role, and it is not really the Secretary of
12 State's role or position to get into absolute detail of
13 an investigation.
14 Q. You see, she asked for as much detail as possible in the
15 covering letter.
16 A. Yes.
17 Q. I am suggesting to you that the response was economical
18 with the detail.
19 A. I don't accept that. You would need -- well, of course,
20 sadly the Secretary of State is no longer with us, but
21 you would need to put that question to officials.
22 If I could refer back to my letter -- I don't think
23 I need refer to it -- I think I said, you know, in terms
24 of her asking for detail -- I would like to think
25 I would have had an open door to the Secretary of State,
252
1 and I think I said, you know, if she needs any further
2 assistance, "Don't hesitate please to contact me".
3 Q. You see, what I am suggesting to you is this,
4 Sir Ronnie, that the Secretary of State ought to have
5 been told, "We have a serious issue here in respect of
6 a police officer. There is a live investigation. We
7 believe the allegation has some substance. We are doing
8 all we can about it", and, if necessary, you could have
9 said to her, "For operational reasons we don't want the
10 family to be told just yet", but at least the Secretary
11 of State would have known that there was an allegation,
12 that there was some truth in what the Hamill family had
13 told her, not that they were just repeating rumours.
14 A. I don't think it was for the Secretary of State to get
15 that level of detail and, as I have said, it is my
16 personal recollection that I didn't personally have that
17 level of detail at that time, but I keep coming back to
18 it was a matter for rigorous investigation and it was
19 a matter that would be presented to the Director of
20 Public Prosecutions to consider whether there indeed was
21 evidence of criminality.
22 Q. See, the overall situation here, Sir Ronnie, is one of
23 a catalogue of failures, mistakes, mysterious tactics
24 and so forth, that whatever the reason, nobody was
25 brought to justice, firstly, for Robert Hamill's murder?
253
1 A. I don't accept that.
2 MR McGUINNESS: I hesitate to interrupt, sir, but if my
3 learned friend is going to put that there was
4 a catalogue of failures, mistakes and mysterious
5 tactics, he really ought to outline what they are to
6 Sir Ronnie, because Sir Ronnie has not had the benefit
7 of those being outlined to him.
8 THE CHAIRMAN: He was just making a speech and he shouldn't
9 be.
10 A. I certainly do not accept there was such a catalogue,
11 and it will be noted that they were arrested pretty
12 quickly after the incident took place. For various
13 reasons -- and people have put to me in questions the
14 sort of context prevailing in the Portadown area; people
15 being frightened for their own personal safety -- for
16 various reasons evidence given was withdrawn, and for
17 various reasons the Director of Public Prosecutions
18 decided not to proceed with charges in respect of those
19 whom we had arrested.
20 MR McGRORY: You see, in terms of the vigour with which
21 Reserve Constable Atkinson was pursued by the police,
22 I have to suggest to you that it was remarkable in its
23 lack of energy and tactical common sense.
24 A. Well, could you suggest to me what more could have been
25 done? Here you had a witness making an allegation, as
254
1 I have said, a dreadfully serious allegation, a witness
2 whose probity would have to be tested. In addition to
3 that, you suddenly had alibis that were presented
4 refuting the allegations made by the witness. You have
5 described a delay in when a relationship broke up
6 between the alibi witnesses and the police actually
7 moving to seize what was described as an opportunity.
8 I can't give an explanation for that delay, but there
9 could well be a proper technical, investigative reason
10 for that delay. So I am not sure, sitting here, what
11 you could suggest additionally could have been done in
12 relation to the investigation into Atkinson's alleged
13 conduct.
14 Q. You see, I have already outlined to you and suggested to
15 you there was an appalling lack of supervision. I am
16 going to suggest to you further that the disinterest of
17 the senior ranks within the RUC in the investigation
18 into Reserve Constable Atkinson led directly or
19 indirectly to the failure to detect him.
20 THE CHAIRMAN: That's two questions in one. The question is
21 asked on the supposition that there was a disinterest.
22 Perhaps you had better pursue that first and then put
23 the second part of it. It doesn't help anyone to put in
24 a question which has an unspoken assumption. That's not
25 a proper way of asking questions.
255
1 MR McGRORY: Yes, sir. I will split it into two questions,
2 Sir Ronnie.
3 First of all, I am suggesting to you that there was
4 a distinct disinterest at the senior level within the
5 RUC in the detection of Reserve Constable Atkinson.
6 A. I completely and utterly refute that. I have said
7 earlier in my evidence that all of these officers we
8 have mentioned -- and I will not go through them
9 individually again -- I know absolutely that not one of
10 them would tolerate such an individual if they have
11 engaged in such behaviour being part of the organisation
12 and would do all in their power to make sure that such
13 an individual was pursued, and if there was evidence
14 that could be found, all steps would be taken to obtain
15 that evidence and present it before a court.
16 Q. Would you look, please, at page [39692]? I want you to
17 go to part 3. Now this is the document which is the
18 memorandum of the meeting you had on 21st April with the
19 official. He says there about you:
20 "I generally found the chief constable in a pretty
21 defensive and critical mood."
22 Do you see that?
23 A. Yes, I do.
24 Q. Were you defensive and critical on that day?
25 A. Certainly not. I would be defensive, I have to say,
256
1 Chairman, of the reputation of the organisation, but my
2 determination to make sure that that reputation was
3 intact would actually make me absolutely rigorous in
4 ruling out anyone who would behave in such a way as to
5 damage that reputation.
6 Q. Was there an attitude within the RUC that people like
7 the Hamill family who made complaints and who suggested
8 that there were corrupt policemen were a bit of
9 a nuisance?
10 A. Certainly not.
11 Q. Would you go on and look at that paragraph:
12 "He commented that Hamill's death could well have
13 been caused by his own family cradling his head in a way
14 that led to oxygen starvation."
15 Where do you get that?
16 A. I think that's a quite disgraceful record of the
17 conversation that we had. What was suggested to me --
18 I remember being absolutely shocked when Robert Hamill
19 died, because my belief was that he was progressing well
20 and that he was not at risk of dying. In asking people
21 -- and I think it may well have been in a conversation
22 with Maynard McBurney -- there would have been a general
23 discussion that sometimes people, not specifically the
24 family, but even police at the scene who would cradle
25 a person, but to suggest that Robert Hamill's death was
257
1 due to anything other than the beating he received at
2 the hand of his assailants is absolutely disgraceful.
3 Q. So do you dispute the manner in which this has been
4 recorded?
5 A. Absolutely.
6 Q. As for the next bit:
7 "He thought it was noteworthy that it was Hamill's
8 sister rather than his partner who was making the
9 running and that the sister (Diane) had her own agenda
10 to discredit the RUC."
11 Did you make that remark?
12 A. Certainly I did not make that remark. I would not
13 ascribe that to Robert Hamill's sister.
14 Q. Had you made the remark, do you agree that it would be
15 a reprehensible attitude to be displaying?
16 A. It would be an improper attitude.
17 Q. Do you accept now that Diane Hamill has done nothing
18 since the death of her brother but to properly campaign
19 to get to the bottom of the murder?
20 A. I accept that absolutely completely. Indeed when you
21 and I had a meeting where I passed through you
22 information to the family, but asked them to respect it
23 by not making it public, they respected that absolutely
24 and completely.
25 Q. Do you accept that she has never had an agenda to
258
1 discredit the RUC?
2 A. I do. I think she has an agenda to find out exactly
3 what happened to her brother.
4 Q. Do you say that no-one in the RUC, either in the upper
5 ranks or the lower ranks, had a view that the Hamills
6 were just about discrediting the RUC?
7 A. I can't speak for everyone in the organisation,
8 Chairman, but certainly it would not be a view that
9 would be properly ascribed to the organisation. I can't
10 speak for every individual in that organisation.
11 Q. Finally, Sir Ronnie, I have to suggest once again,
12 firstly, there was an appalling lack of interest in the
13 investigation into Reserve Constable Atkinson displayed
14 by you and the assistant chief constable.
15 THE CHAIRMAN: You said, "Let me suggest once again". If
16 you are repeating what has gone before, there is simply
17 no need for that. If there is something new, by all
18 means, but not just repetition.
19 MR McGRORY: I suggest to you, Sir Ronnie, that one would
20 have at least, at the very least, have expected that,
21 firstly, you or your deputy chief constable would have
22 insisted on the suspension of Reserve Constable Atkinson
23 immediately the allegation came into the system in
24 May 1997. Do you accept that?
25 A. No, I do not accept that. It would be completely
259
1 improper to move immediately because an allegation has
2 been made. As I have said I think several times in my
3 evidence, the probity of the person making that
4 allegation has to be established. Investigations have
5 to be carried out, and in this case clearly
6 an investigation included the fact that people were
7 giving an alibi. It may be that it later transpired to
8 be a false alibi, but you cannot -- everyone is entitled
9 to fairness in the approach, and however reprehensible,
10 and this is disgusting behaviour that has been alleged,
11 the person in respect of whom that allegation is alleged
12 is entitled to fairness in the approach. It would be
13 completely and utterly wrong to immediately suspend
14 someone, as you say, on the day that someone came in and
15 made an allegation against them.
16 Q. And that the absence of any supervision between May 1997
17 and June 2000 on your part or on the part of a senior
18 assistant chief constable or deputy is an appalling
19 indictment of the way in which you treated an allegation
20 into a corrupt police officer.
21 A. I completely refute that. The investigation had been
22 carried out. A file had been submitted to the Director
23 of Public Prosecutions, who clearly decided that there
24 was no basis for a prosecution, and as soon as a new
25 opportunity was brought to my attention, I moved very
260
1 rigorously to ensure that all possible was done to seize
2 that opportunity.
3 MR McGRORY: Very well.
4 Questions from MR O'HARE
5 MR O'HARE: I am conscious of the time, Mr Chairman. I will
6 not be long. I have only a few matters.
7 I appear on behalf of the late Mr McBurney, Sir
8 Ronnie.
9 You were asked by Mr McGrory about supervision by
10 higher ranking officers in relation to this. Of course,
11 you would have been aware, am I right in saying, that
12 G Division, which is headed by an assistant chief
13 constable, and the ICPC as far as you were concerned
14 were supervising the investigation Mr McBurney was
15 carrying out in relation to the Atkinson allegation?
16 A. That's right, in addition to the Regional ACC, who has
17 already given evidence to the Inquiry, Mr Hall. He was
18 a police officer who took all those duties very
19 seriously.
20 Q. And Mr Murnaghan from the ICPC?
21 A. Yes.
22 Q. I am not going to ask you, Sir Ronnie, about the
23 honesty, commitment or integrity of the late
24 Mr McBurney. I think you have made your views clear
25 about that.
261
1 A. I don't mind you asking me about that. As far as I was
2 concerned, they were complete.
3 Q. What I wanted to ask you was you would have known
4 Mr McBurney over a long period of time?
5 A. I did.
6 Q. And you would have worked with him over a long period of
7 time?
8 A. That's correct. Not necessarily closely. Different
9 spheres of responsibility.
10 Q. But certainly you knew enough about him, if I may put it
11 like that, on a personal level to enable you to form
12 those conclusions about his honesty, integrity and
13 commitment?
14 A. Absolutely.
15 Q. Did you ever detect any lack of commitment in respect of
16 the late Mr McBurney in the investigation of a crime
17 simply because either the victim or the alleged
18 perpetrator was from one side of the community or the
19 other?
20 A. Quite the opposite. Quite the opposite. He would not
21 have had a trace of sectarianism in his body and he
22 would have been tenacious and hardworking to a fault, to
23 a fault, until it probably affected his health.
24 Q. Would the same have been true if he was investigating
25 the alleged commission of an offence by a police
262
1 officer?
2 A. Maynard McBurney is someone, and when he came to me to
3 talk about this new opportunity, as we have described
4 it, who would have been desperately keen that if
5 a police officer had behaved in the way alleged, to do
6 all that he, Maynard McBurney, could do to see that that
7 behaviour was dealt with.
8 Q. I am now going to put a scenario that has been suggested
9 in this Inquiry, that when Mr McBurney first interviewed
10 Atkinson in September of 1997 by asking Reserve
11 Constable Atkinson about his phone and his phone
12 records, that he was in some way tipping off Reserve
13 Constable Atkinson that the police are on to him.
14 What do you say to that suggestion or scenario?
15 A. Knowing Maynard McBurney as I did know him, I would
16 absolutely refute such a scenario, such a suggestion.
17 Q. Would it be fair to describe this as ludicrous?
18 A. You would need to know Maynard McBurney as I did.
19 Knowing him as I did, I would be happy to describe the
20 scenario as ludicrous that he would deliberately tip off
21 someone who had behaved in the dreadful way that was
22 alleged.
23 Q. Yes. You were asked briefly about suspension of
24 a police officer whenever a serious allegation is made
25 about him.
263
1 In 1997 is it right to say that there were quite
2 a lot of complaints annually about police officers
3 alleging serious offences?
4 A. There were. I would need to go back to the statistics,
5 Chairman, but it was certainly not uncommon.
6 Q. In fact, G Department looked after Complaints and
7 Discipline and those complaints that were made against
8 police officers?
9 A. That is correct.
10 Q. What would be the situation on a practical level if
11 every time a complaint was made about a police officer
12 he was suspended?
13 A. Well, that's it. I have said it would be absolutely
14 improper, wrong and would be completely unworkable if
15 everyone was suspended on the basis of an allegation
16 without work to substantiate that allegation.
17 Q. On the basis of the pure allegation without any
18 investigation into whether or not there was any
19 substance to the allegation?
20 A. That's correct. That would be improper.
21 Q. May I also ask you from an internal point of view you as
22 the chief constable would have had to keep some distance
23 yourself from allegations against police officers,
24 bearing in mind the role that you played in the internal
25 discipline.
264
1 A. Yes. We have discussed the sort of guidance and
2 procedures. That's standard practice in British
3 policing.
4 Q. In particular in 1997, as there is now today, if, for
5 example, evidence was obtained that really showed that
6 a police officer against whom the allegation was made,
7 he was dead in the water, as it were, there was then
8 a fast track procedure, as it were?
9 A. Yes.
10 Q. And that meant that it was actually the chief constable
11 himself who heard the hearing at first instance?
12 A. That is correct and it was -- there were steps in place,
13 as Mr McGrory has indicated, where a chief constable
14 could delegate that to another chief constable if he had
15 arrived at such a state of knowledge that his or her
16 hearing of the case would be improper.
17 I eventually came to such a state of knowledge in
18 this case. So had there been disciplinary proceedings,
19 I would have disbarred myself from presiding at it.
20 MR O'HARE: Thank you.
21 MS DINSMORE: I have no questions.
22 MR McCOMB: I have no questions.
23 Questions from MR EMMERSON
24 MR EMMERSON: Just very briefly, if I may. Sir Ronnie,
25 I want to ask you just one or two quick questions, if
265
1 I can, on behalf of the Director of Public Prosecutions.
2 Can I ask, please, that you be shown [18977]? This
3 is the memorandum that was shown to you by Mr Underwood.
4 It is one of the documents that is appended to your
5 first witness statement. It is a memorandum by the
6 director himself. It is a telephone conversation that
7 took place between you on 22nd June.
8 A. Yes.
9 Q. Just a couple of questions, if I can, following on from
10 that. If you could look at the first few lines of the
11 penultimate paragraph, the sentence that there begins,
12 "The chief constable stated", appears to contain
13 an inaccuracy:
14 "The chief constable stated that Mr McBurney had now
15 interviewed the relevant police officer and he had
16 'changed his story'."
17 Do you see that?
18 A. Yes, I do.
19 Q. We know, in fact, that at this point in time, by this
20 stage, Mr McBurney had taken a witness statement from
21 Andrea McKee two days earlier in [address redacted][.
22 A. Yes.
23 Q. Now, I just want to be clear. Can you assist at all as
24 to how that error of fact may have crept in? Was there
25 a point in time at which you had been under the
266
1 impression that Mr Atkinson had been re-interviewed?
2 A. I certainly don't think so and I think there is an error
3 in the director's note, if I may say so, in the
4 preceding paragraph when he describes:
5 "The matter had been investigated, and although it
6 was alleged that the call was improper, it had been
7 accepted that it was innocent."
8 I don't think there was such an acceptance. I think
9 there wasn't the evidence to prove that it was other
10 than innocent.
11 Q. Yes. The matter, as you will recall, was referred --
12 A. This was a telephone conversation between myself and the
13 director. I have to say, Chairman, the director would
14 be absolutely circumspect in the professional role of
15 the Director of Public Prosecutions and would always
16 have made it clear that it was for the police to gather
17 evidence and present evidence to the director and his
18 staff for consideration, that it wasn't the role of the
19 director or his staff to gather evidence.
20 You know, there is a careful relationship between
21 a chief constable and, in our case in Northern Ireland,
22 the then Director of Public Prosecutions. I think we
23 both understood and respected the professional distance
24 that was required.
25 Q. Yes. I am grateful for that. I am just going to ask
267
1 you one or two further questions about that in a moment,
2 if I may.
3 A. Sorry.
4 Q. You can't assist, as far as this record is concerned,
5 save to say there was not a time in your mind when the
6 facts as they are recorded reflected your understanding?
7 A. I mean, I can't understand what it would mean "had
8 changed his story". If his story was originally he was
9 innocent of such allegations and he had now changed his
10 story, I can't personally understand -- the question
11 would have to be put to the person who made the note.
12 Q. Yes. Presumably you have now no independent
13 recollection of the conversation itself?
14 A. No, no.
15 Q. You say in your witness statement about this memorandum
16 that at the time that the reference was made, you were
17 referring Mr McBurney to the office of the DPP in the
18 hope that the DPP may be of some assistance to
19 Mr McBurney in devising his investigative strategy. Is
20 that correct?
21 A. Within the proper bounds of the professional distance
22 between police and prosecuting authorities.
23 I think the main thing was, "Is this person
24 a witness or is this a person a suspect to be
25 interviewed on the basis that she herself possibly has
268
1 perverted the course of justice?"
2 Q. By the time you made this reference, she had already
3 been interviewed as a witness rather than as a suspect.
4 Did you know that?
5 A. I did not think that at the time.
6 Q. So there may have been some communication problems in
7 your end as well --
8 A. Yes.
9 Q. -- potentially, because we now know that Mr McBurney had
10 interviewed her.
11 A. Two days.
12 Q. Rather than interviewing her under caution on the 20th,
13 he had taken a witness statement --
14 A. A witness statement.
15 Q. -- from her two days earlier. It was against that
16 background that this reference was being made. That was
17 not something you were aware of?
18 A. I don't think so, Chairman. I don't think I was aware
19 of the details. This was, as I have described several
20 times, presented to me as a new opportunity --
21 Q. Yes.
22 A. -- and a chance that if an officer had behaved in the
23 way alleged, we could actually bring that officer to
24 book for the dreadful behaviour that had been alleged.
25 Q. Understood. You mentioned a moment ago the clearly
269
1 understood division of responsibility between, let us
2 say, as heads of the organisation, yourself and the
3 director.
4 Can I put it shortly: the police would be
5 responsible for all operational decisions within
6 an investigation?
7 A. Absolutely.
8 Q. Whilst it would be possible to go to the office of the
9 DPP for legal advice on prosecutorial matters, questions
10 of lines of investigation to be pursued would always
11 remain the responsibility of the police.
12 A. Absolutely a matter for the police, and if anybody
13 suggested differently to the particular director, they
14 would be very quickly put right.
15 Q. You see, I am just focusing on this question of whether
16 Andrea McKee should have been treated as a witness or
17 a suspect.
18 As it happens, we know when Mr McBurney consulted
19 the office of the DPP, and indeed when his successor,
20 Mr Colville Stewart, consulted the office of the DPP,
21 the response was very firmly and very clearly, "It is
22 a matter for the police to decide whether she should be
23 treated as a witness or a suspect up until the time when
24 the police investigation file is submitted, and if you
25 consider it appropriate at that stage to make
270
1 an application or recommendations to us that she should
2 be granted immunity from prosecution, that is something
3 you must do at the time you have completed your
4 investigations and submitted the file to us."
5 A. I understand that and accept that completely.
6 Q. That does not come as a surprise to you in any way?
7 A. No, it doesn't, but I don't think it would preclude the
8 question being asked, "If we were to do this and present
9 something to you on the basis we have taken this action,
10 what might your attitude be?"
11 Q. But you wouldn't be surprised if the response was, "We
12 are not in a position to give an advanced view on that
13 at an early stage of an investigation"?
14 A. No, I would not at all be surprised.
15 MR EMMERSON: Thank you.
16 Questions from MR McGUINNESS
17 MR McGUINNESS: Sir, if I might, I have only a very few
18 questions for Sir Ronnie. If I could ask that document
19 [44407] be placed up on the screen and if the second
20 paragraph could be highlighted, please, you will see,
21 Sir Ronnie, that this paragraph indicates:
22 "It is believed that this matter was referred to the
23 ICPC under Article 8(1) of the Police (Northern Ireland)
24 Order 1987 by the chief constable. This referral was
25 made prior to the receipt of a formal complaint which
271
1 was received at Gough Barracks on 7th May 1997 in the
2 format of a letter from [blank] (solicitor acting on
3 behalf of Ms Hamill)."
4 Can I ask you, Sir Ronnie, do you have any
5 recollection of that referral?
6 A. Not necessarily specifically on the referral, Chairman,
7 Inquiry members. Certainly on appointment -- I have
8 described in my evidence I was appointed in November
9 '96 -- certainly it was my determination, amongst other
10 things on that appointment, to make absolutely full use
11 of the ICPC, and where there were matters of public
12 interest, and this was clearly a matter of public
13 interest, that they would be voluntarily referred by me,
14 and that's what happened in this case.
15 Q. As regards the terms of reference of the referral, were
16 you aware, or at that time did you believe that there
17 were any restrictions upon those terms of reference?
18 A. Absolutely no restrictions, nor could there be. Once
19 the ICPC, either as a result of referral by me, or by
20 any other means, were supervising, there would be no
21 restriction whatsoever.
22 Q. Had it been suggested to you at any later stage that the
23 ICPC had perceived that there were restrictions upon
24 their remit, what would your response to that have been?
25 A. One of shock and surprise.
272
1 Q. Now, as regard the briefing on 12th May 1997 -- and you
2 have indicated that you have no recollection of the
3 specifics of that particular briefing -- regardless of
4 that, and assuming that there was such a briefing, did
5 you have any personal responsibility for taking any
6 further action as a result of the briefing?
7 A. No, and it wouldn't fall to a chief constable to take
8 further personal action.
9 Q. Only one or two other questions. As regards the issue
10 of suspension, it was suggested to you by Mr McGrory
11 that suspension of Reserve Constable Atkinson would have
12 sent a message that he need not expect to be treated as
13 an officer.
14 As far as you are concerned, do you regard
15 suspension as a punitive or a precautionary measure
16 following an allegation?
17 A. Well, it wouldn't in my view be appropriate to engage in
18 suspension just to send a message. You would have to
19 have grounds for making that suspension, and, of course,
20 these decisions, as all decisions, are subject to
21 challenge.
22 So what I am saying, Chairman, if I may, is, if you
23 were to move to suspend someone without the proper
24 basis, undoubtedly it would be very quickly legally
25 challenged. So you would need to make sure you had the
273
1 proper basis in the first instance.
2 MR McGUINNESS: I have no further questions. Thank you.
3 MR UNDERWOOD: There is a matter which Mr McGrory would like
4 to raise again. He passed me a note but I simply can't
5 read it.
6 Further questions from MR McGRORY
7 MR McGRORY: It was touched on by Mr McGuinness, were you
8 aware about the ICPC's exit from the stage in October,
9 sir? I can't recall if anyone has asked the chief
10 constable to deal with it.
11 THE CHAIRMAN: Sir Ronnie, you were obviously under the
12 impression that the ICPC was seized of what we call the
13 tipping-off allegation from virtually the time it was
14 made?
15 A. I assumed, and would assume, that having referred
16 an investigation to them for supervision, that they
17 would supervise every aspect of that investigation,
18 including any matters that might arise that weren't
19 discussed in any original referral.
20 THE CHAIRMAN: We have had evidence, including evidence from
21 the ICPC, that they regarded it and conducted themselves
22 as though in the early stages it was within their remit,
23 but then they decided there had been no formal referral
24 to them. They would have required a referral by you
25 under Article 8. That was later done. I can't remember
274
1 now the date, but we have had evidence that there was
2 a formal referral later.
3 A. Well, I can't comment on that, Chairman. I am sorry,
4 but I find it hard to understand why they felt disabled.
5 THE CHAIRMAN: Simply because there had been no formal
6 referral as required by Article 8. I am bound to say
7 one has the impression that there was perhaps not
8 a complete familiarity either on the part of C&D or the
9 ICPC of the terms of the order. I hope that's not being
10 unfair to either of them?
11 A. Right. I am sorry, Chairman. My belief was that they
12 were there and supervising every aspect of that
13 investigation, including if you would describe the new
14 allegation against Atkinson as a matter arising.
15 I would be surprised and find it hard to understand why
16 they would not supervise that element of the
17 investigation.
18 THE CHAIRMAN: It is a matter of construction of the order.
19 Thank you.
20 MR UNDERWOOD: No questions arising out of that. Thank you
21 very much.
22 THE CHAIRMAN: Thank you very much.
23 MR UNDERWOOD: Thank you, Sir Ronnie.
24 A. Thank you very much indeed.
25 (The witness withdrew)
275
1 MR UNDERWOOD: Sir, tomorrow we were due to have two
2 witnesses, one of whom we called J. Unhappily, he is
3 very ill. I don't think it right in all the
4 circumstances to call him. At some convenient moment we
5 will read his statement, which means we have only one
6 witness tomorrow.
7 THE CHAIRMAN: How long do you think he will take?
8 MR UNDERWOOD: I suspect a couple of hours.
9 THE CHAIRMAN: Then we have the remains of the McBurney
10 interview to be read?
11 MR UNDERWOOD: We do. I think that's about half an hour's
12 worth.
13 THE CHAIRMAN: So allowing for slippage and breaks, about
14 three and a half hours?
15 MR UNDERWOOD: At most, yes.
16 THE CHAIRMAN: We will sit at 10 o'clock just to be on the
17 safe side. I don't suppose people will complain if we
18 are away early. 10 o'clock tomorrow.
19 (5.40 pm)
20 (The hearing adjourned until 10 o'clock tomorrow morning)
21
22 --ooOoo--
23
24
25
276
1 I N D E X
2
3
MR PHILIP MICHAEL IRWIN (cont.) .................. 3
4 Further questions from MR McGRORY ......... 3
Questions from MS DINSMORE ................ 6
5 Questions from MR EMMERSON ................ 25
Questions from MR GREEN ................... 37
6 Questions from MR McKILLOP ................ 49
Questions from MR DALY .................... 53
7 Questions from MR O'CONNOR ................ 55
Questions from THE PANEL .................. 68
8
MS CHRISTINE SMITH (sworn) ....................... 69
9 Questions from MR UNDERWOOD ............... 70
Questions by MR O'HARE .................... 101
10 Questions from MR McGRORY ................. 103
Further questions from MR McGRORY ......... 123
11 Questions from MR MALLON ................. 125
Questions from MR EMMERSON ................ 129
12 Questions from MR DALY .................... 144
Further questions from MR UNDERWOOD ....... 148
13
MR CHRISTOPHER JOHN MAHAFFEY (sworn) ............. 148
14 Questions from MR UNDERWOOD ............... 149
Questions from MR WOLFE ................... 155
15 Questions from MR O'HARE .................. 158
Questions from MR McGRORY ................. 165
16 Questions from MR McCOMB .................. 177
Questions from MS DINSMORE ................ 179
17 Questions from MR O'CONNOR ................ 181
18 SIR RONALD FLANAGAN (sworn) ...................... 183
Questions from MR UNDERWOOD ............... 183
19 Questions from MR WOLFE ................... 202
Questions from MR McGRORY ................. 212
20 Questions from MR O'HARE .................. 261
Questions from MR EMMERSON ................ 265
21 Questions from MR McGUINNESS .............. 271
Further questions from MR McGRORY ......... 274
22
23
24
25
277
