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Hearing: 15th September 2009, day 63
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PUBLIC INQUIRY INTO THE DEATH OF
ROBERT HAMILL
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Held at:
Interpoint
20-24 York Street
Belfast
on Tuesday, 15th September 2009
commencing at 10.30 am
Day 63
1 Tuesday, 15th September 2009
2 (10.30 am)
3 MR UNDERWOOD: Morning, sir. I gather there is some problem
4 with your LiveNote.
5 THE CHAIRMAN: Yes, I am afraid so.
6 MR UNDERWOOD: It will be fixed as we run, I am told. In
7 that case, can I call Mr Munn, please?
8 THE CHAIRMAN: Yes.
9 MR WILLIAM JOHN LYTTLE MUNN (sworn)
10 Questions from MR UNDERWOOD
11 MR UNDERWOOD: Morning, Mr Munn.
12 A. Good morning.
13 Q. My name is Underwood. I am Counsel to the Inquiry.
14 A few questions for you. It may well be there are some
15 follow-ups from others. Can I ask you your full names,
16 first of all, please?
17 A. It is William John Lyttle Munn.
18 Q. Thank you. Can we have a look at page [81646] on the
19 screen, and can I ask you to keep your eyes on the
20 screen while we scroll through the five pages of it?
21 A. Okay.
22 Q. Is that your witness statement?
23 A. That is correct, yes.
24 Q. Is it true?
25 A. That's correct.
1
1 Q. Thank you very much. Just a few matters. If we go to
2 paragraph 18, which is on page [81648], picking it up at
3 the bottom of paragraph 17, in fact, you deal in the
4 final three lines of that top paragraph with the report
5 submitted by Detective Superintendent to ACC Crime on
6 5th February 2004, which you say explains Andrea McKee's
7 commitments to the area. The context of that is that in
8 that paragraph you say you spoke to Andrea McKee about
9 relocation.
10 Can we have a look at that document at page [74243],
11 please? If we pick it up from paragraph 3 down to
12 paragraph 11 inclusive, first of all, is this the report
13 you are referring to?
14 A. Yes.
15 Q. Thank you.
16 If we look at paragraph 3, it says:
17 "The witness lives with her 3-year-old child and her
18 partner", and it gives his nationality and where they
19 live.
20 A. Uh-huh.
21 Q. "The accommodation is a privately rented 2-bedroom flat.
22 "She is hoping to take up a nursing career. Her
23 partner is in the final year of an engineering degree at
24 the local university. He hopes to complete a Masters
25 degree at the same university.
2
1 "They live in the same street as her mother, who
2 acts as childminder. Her sister also lives locally and
3 the family appear to be close."
4 Then if we jump down to 10:
5 "In this case", and this is witness protection, "it
6 would mean moving the family a safe distance from [that
7 town]. This, however, would severely affect their
8 domestic and educational arrangements.
9 "It is clearly possible for the family to move to
10 another privately rented flat in the general area.
11 Advice has been given to use, for example, her maiden
12 name (from the telephone book the name [blank] is
13 commonplace in Wrexham)."
14 Is that a fair assessment of what she was telling
15 you, and the view you took as a team?
16 A. Yes, very much so.
17 Q. Just to get this clear, although you say this in your
18 statement, basically there were two options here. One
19 was go into the programme, which means she moves right
20 away?
21 A. That's correct.
22 Q. The other is if she can't or won't move right away from
23 the area, the other thing is local police helping her
24 out and basic things like using her maiden name and so
25 on?
3
1 A. That's correct.
2 THE CHAIRMAN: Just before you move on, can you tell us
3 whereabouts in relation to Craigavon is Mallusk?
4 A. Mallusk.
5 THE CHAIRMAN: In paragraph 7 it says:
6 "... processed through the Royal Mail postal sorting
7 office in Mallusk."
8 Have I pronounced it correctly?
9 A. Sir, that was part of the investigation which I was not
10 privy to.
11 THE CHAIRMAN: It sounded like a place name.
12 A. Mallusk is actually on the outskirts of Belfast. That's
13 where the sorting office is.
14 THE CHAIRMAN: Thank you.
15 MR UNDERWOOD: Going back to [81648], paragraph 18 -- in
16 fact, can we split in screen and have [81649] up as
17 well?
18 If we have paragraph 18 highlighted, you can see
19 that you are dealing with a meeting, which is, in fact,
20 a meeting of 27th January 2004, which you referred to
21 earlier on.
22 A. That's correct, yes.
23 Q. You say there:
24 "Andrea was asked at that meeting to consider all
25 her options. She was told that if she did not want to
4
1 move from the general area, she would receive assistance
2 from the investigation team who would liaise with the
3 local police in the area. She would not receive any
4 assistance from the witness protection team if she chose
5 not to relocate, because, in those circumstances, she
6 would not meet the criteria for entry into the witness
7 protection programme. Entry into the programme is
8 entirely voluntary and it is up to the witness to decide
9 whether to enter the programme or not after it has been
10 explained to the witness. Prior approval for inclusion
11 would have been granted by ACC Crime."
12 Do we gather from that that the option was entirely
13 hers?
14 A. Absolutely, yes.
15 Q. As far as you were concerned, she qualified?
16 A. Correct.
17 Q. Paragraph 19, if we can highlight that, you say there:
18 "Witness protection stays totally independent of the
19 investigation. It is our responsibility to try and
20 protect people, in whatever capacity, to take the threat
21 away from them. Issues such as Andrea McKee's
22 commitment to giving evidence or the authenticity of the
23 letter she was sent would definitely not have been
24 touched on as part of my role. There was no suggestion
25 whatsoever that Andrea McKee would not give evidence
5
1 unless she was given a house move. One of the things
2 that we do discuss with people is whether they have been
3 promised or given any inducements. If they give any
4 indication that they have, then we will not consider
5 them for inclusion in the witness protection programme.
6 We are there to maintain the integrity of the
7 investigation, the witness and the Witness Protection
8 Unit."
9 That's right, is it?
10 A. That's totally right, yes.
11 Q. Can I just get this from you? If somebody is
12 an important witness in a case and it is brought to your
13 attention there might be some sort of threat, do you
14 assess at all whether in your view that's a genuine
15 threat?
16 A. Threat assessment, we would determine that and that is
17 given to us by the senior investigating officer.
18 Q. So that's a starting point, is it?
19 A. That's a starting point, yes.
20 Q. It follows here that prior approval for inclusion had
21 been given by ACC Crime that that threat was assessed as
22 a real one?
23 A. That's correct, yes.
24 Q. Then in terms of your dealing with the witness,
25 presumably this has to be done quite sensitively, does
6
1 it?
2 A. Correct, yes.
3 Q. You have been in the police, I think, since 1987. Is
4 that so?
5 A. (Witness nods).
6 Q. In the course of talking to a witness about whether they
7 should be in the programme or not, do you generally get
8 an impression of their sense about the threat?
9 A. Yes. You sense their fears and you would ask them their
10 fears and concerns in relation to what the threat is.
11 Q. You said here that there was no suggestion whatsoever
12 that Andrea McKee would not give evidence unless she was
13 given a house move. Did you get any impression that she
14 was using this threat as some sort of lever to get
15 a better house?
16 A. Not at all. Not at all.
17 Q. Is that the sort of thing that is likely to have come
18 across, if that was so?
19 A. No. I have to say I never came across that in my
20 dealings with witness protection in anyone using the
21 scheme to try to get a better life.
22 Q. So did you get any impression of any ulterior motive
23 here?
24 A. None whatsoever.
25 Q. There is a suggestion, I think, that either she sent
7
1 herself the letter to try to get a better house, or,
2 this letter having come, she used it to try to get
3 a better house. Can you comment on that?
4 A. I can't.
5 Q. We saw at page [74234] that comment:
6 "It is clearly for the possible for the family to
7 move to another privately rented flat in the general
8 area."
9 As far as you were concerned, was that a practical
10 possibility?
11 A. Absolutely yes.
12 Q. That was discussed, was it?
13 A. It was discussed, yes. I believe it possibly was
14 discussed, not only the inclusion within the witness
15 protection programme, but as an alternative to her not
16 moving away from the area.
17 What we would try to do is remove the threat from
18 the area where she would be living, and that would be
19 part of our criteria for inclusion in this scheme, that
20 the person is prepared to move away from the area, to
21 remove that threat.
22 Q. In your paragraph 22 at page [81649] you refer to
23 a letter -- I don't think it is necessary to see it --
24 and you say:
25 "I have been shown a letter dated 25th March 2004
8
1 which is from DSH to the Housing Association in Wrexham.
2 I have not seen this letter previously. Seeking
3 assistance from a housing association to relocate
4 a witness is an example of the options open to the SIO
5 to protect a witness when entry into the witness
6 protection programme is not viable because of the
7 witness' reluctance to enter the scheme."
8 That's the sort of thing you were used to seeing,
9 was it, as a result of the investigative team helping
10 out?
11 A. Yes. Obviously the investigative team have been
12 liaising with the force in that area and getting
13 assistance from the local housing association as well.
14 MR UNDERWOOD: Thank you very much. As I say, there may be
15 some other questions.
16 MR WOLFE: I have no questions.
17 MR McGRORY: I have no questions.
18 MR McCOMB: No questions.
19 Questions from MR ADAIR
20 MR ADAIR: Can you help us with the structure of this scheme
21 in 1997 as opposed to the structure of it today?
22 A. Back then, it probably was not as structured as what it
23 is now, albeit there were still certain criteria which
24 needed to be met for inclusion within the programme. So
25 the criteria hasn't really changed any. It is just the
9
1 structures.
2 Now witness protection is driven by Government and
3 the Home Office and a central body within London for all
4 UK forces.
5 Q. I mean, I don't think there is any issue about this, but
6 is there a fairly set procedure set out in a guidelines
7 and policy document as to the steps to be followed to
8 take a witness into the witness protection scheme now?
9 A. There is. There is.
10 Q. Now, I don't want you to say where people are taken or
11 were taken, but back in 1997, for example, if
12 a 17-year-old girl was to go into this witness
13 protection scheme, because of a perceived threat, for
14 example, by a paramilitary organisation, or those linked
15 to an organisation, would she remain -- would she be
16 relocated in the jurisdiction or taken out of the
17 jurisdiction?
18 A. Totally out of the jurisdiction to another jurisdiction.
19 Q. Would she have to be willing to do that?
20 A. Absolutely. It is all voluntary and then measures are
21 put in place to protect her identity.
22 Q. Then would she remain there both pre-trial and
23 post-trial?
24 A. That's correct.
25 Q. She or he?
10
1 A. Yes.
2 MR ADAIR: Yes. Thank you.
3 Questions from MR DALY
4 MR DALY: Can I just ask you briefly, in relation to your
5 meeting with Mrs McKee and your dealings with her, was
6 there any difficulty in meeting with her or making
7 arrangements or times and places and so on?
8 A. None whatsoever.
9 Q. She fully cooperated and she communicated with those
10 relevant persons?
11 A. No problems whatsoever. Yes.
12 MR DALY: Thank you very much.
13 A. Thank you.
14 MR UNDERWOOD: Nothing arising. Thank you.
15 THE CHAIRMAN: Thank you.
16 MR UNDERWOOD: Thank you very much indeed for coming.
17 A. Thank you.
18 (The witness withdrew)
19 MR UNDERWOOD: Mr Cooke now, please.
20 MR ROBERT DAVID COOKE (sworn)
21 Questions from MR UNDERWOOD
22 MR UNDERWOOD: Morning, Mr Cooke.
23 A. Morning.
24 Q. May I ask your full names, please?
25 A. Robert David Cooke.
11
1 Q. Thank you. You kindly signed a statement for us.
2 Perhaps we can look at that at page [80203].
3 Again, if I can just ask you to keep your eyes on
4 the four pages as we scan through it, please. Is that
5 your statement?
6 A. It is.
7 Q. I think you have some revisions to paragraph 6. Is that
8 correct?
9 A. I have.
10 Q. Can we have a look at pages [80204] and [80205]? What
11 would you like to change in paragraph 6?
12 A. The second sentence:
13 "I recall that I attended another consultation, but
14 I do not recall with whom or what it was about."
15 That appears to give the impression that I attended
16 a second consultation on 21st October.
17 Q. Right.
18 A. But I didn't.
19 Q. So that's just another consultation in regard to that
20 case, is it?
21 A. That's exactly right.
22 Q. Fine. Then the final sentence?
23 A. Further down in the final sentence that note suggests to
24 me that Timothy Jameson backed out when he found the
25 other two witnesses had withdrawn. That was a wrong
12
1 assumption basically on my part, because Mr Wright had
2 never indicated he had withdrawn his evidence and
3 Tracey Clarke had just indicated that she was unhappy to
4 go ahead with it.
5 Q. Thank you. So subject to those revisions, is that
6 statement true?
7 A. It is, yes.
8 Q. While we have these pages up, it is paragraph 5 I want
9 to ask you about. You say:
10 "Later that day", that's 17 October 1997, "at 15.30
11 I attended a consultation with Tracey Clarke. That
12 consultation was in the same office with the same people
13 in attendance", that's as Jonathan Wright, "save that
14 Detective Constable McAteer and Tracey's parents had
15 joined us. I do vaguely remember that consultation and
16 am reminded by Roger Davison's notes. I remember that
17 she was concerned and tearful, but I believed she was
18 telling the truth. She clearly did not want to give
19 evidence in court and said she was too frightened to do
20 so. I believe she had a real fear of retribution by
21 Loyalist paramilitaries. If she had been compelled to
22 go to court, I did not believe she would give evidence."
23 Then you say:
24 "I had no further dealings with Tracey Clarke ..."
25 To be fair, this is a vague recollection, is it?
13
1 A. Yes.
2 Q. There is an issue, I think, between you and the others
3 at the consultation about whether she had a real fear of
4 retribution or whether a fear of retribution was
5 mentioned by her parents. Can you help us on that?
6 A. My recollection is it was a sort of a joint thing. She
7 would have indicated that she was unwilling to give
8 evidence for other reasons, but at the back of it, when
9 she may have been saying she was unwilling to give
10 evidence because of her boyfriend, my impression was
11 that she was fearful of what might happen and that was
12 reinforced by the parents.
13 Q. This, presumably, was fairly common in Portadown?
14 A. Not only in Portadown, but widespread, I would suggest,
15 throughout the province at that time.
16 Q. You tell us there you believed she was telling the
17 truth. Is your memory good enough to be helpful to us
18 on that, do you think, if you see what I mean?
19 A. I don't think so. I was really relying on
20 Roger Davison's notes, but, had I felt she was telling
21 lies, I think I would have been clearer in my mind.
22 Q. That's fair. Thank you.
23 Were you present at any discussion about the
24 possibility of using the statement under Article 3?
25 A. No, that would have been a matter for the Director of
14
1 Public Prosecutions.
2 Q. Have you any experience of using statements under
3 Article 3 in this jurisdiction?
4 A. I would have been involved in other consultations on
5 other cases with the Director of Public Prosecutions
6 where that might have been a way forward. So, yes.
7 Q. Can you help us about the practice? If, for example,
8 you have a witness who is saying that they have
9 a number of reasons for not giving evidence but you
10 believe that underlying it is fear of retribution and
11 they actually mention fear of retribution, was that the
12 sort of thing that was good enough to get the article in
13 play?
14 A. No, not per se. There would have been a threat
15 assessment carried out on the basis of what the witness
16 was saying and that would be carried out by, to my
17 recollection, Special Branch officers, who would be more
18 aware of the intelligence, and probably officers in the
19 area where these people reside.
20 Q. Right. So let's assume you have a witness who doesn't
21 mention any fear until she comes to a consultation and
22 the first you know about it is in a big meeting like
23 this.
24 A. Yes.
25 Q. You have DPP officers. You have counsel, senior
15
1 officers.
2 A. Yes.
3 Q. Assume that somebody relies on a fear, or at least makes
4 a mention of a fear, as a reason for not giving
5 evidence. In practical terms, who would go off and get
6 the threat assessment started?
7 A. Well, the police would get the threat assessment, but
8 the request would be made via the Department of Public
9 Prosecutions.
10 Q. I understand. Thank you. There is only one other
11 matter I would like to ask you about. It is your
12 paragraph 8 on page [80205]. Let's take the whole
13 paragraph. You say:
14 "In the Robert Hamill case there was obviously
15 an issue as to whether there was sufficient evidence to
16 proceed. It is clear from the note of consultation that
17 the main witnesses were Tracey Clarke and
18 Timothy Jameson. I do not know whether the prosecution
19 was based solely on their evidence, because I did not
20 know what other evidence there was by way of forensics,
21 etc. It certainly seemed that they were the primary
22 eye-witnesses and without them the case would collapse.
23 I was not, however, asked to make any recommendation on
24 the case. I think the investigating police were
25 experienced enough to have understood the effect of
16
1 those consultations; they would not have needed
2 a recommendation from me. I think it was obvious to
3 everyone who attended those consultations that the case
4 was going to fail. Despite the protestations of
5 prosecuting police who would have liked to continue with
6 the prosecution, everyone accepted the reality of the
7 situation."
8 The impression given by the last sentence or so is
9 that there was not tension but some disagreement about
10 whether this could really go ahead. Is that fair?
11 A. Yes, and certainly applying Article 3 would have been
12 considered by the investigating police and the DPP, but
13 at the end they make the final decision based on their
14 conclusions. Police may not and have not always been
15 happy that it hasn't been used, because when
16 investigators know you have the guilty people, they
17 would like to see that prosecution going ahead.
18 However, they are realistic to know that if
19 witnesses are likely to be threatened because of serious
20 injury, or indeed death, which has happened over the
21 years, then a line -- a decision has to be made
22 somewhere, but that wouldn't -- police may have been
23 unhappy with the decision by the director, but we have
24 to live with that, I am afraid, at the time.
25 Q. Because obviously one of the contentions that led to the
17
1 setting up of this Inquiry was that the police had no
2 appetite to bring to justice any Protestants who might
3 have been guilty of murdering this Catholic.
4 What you are telling us there is this, is it, that
5 at this stage where the prosecution was hanging in the
6 balance, the police were wanting it to go ahead and the
7 DPP had what everybody regarded as a realistic view that
8 it couldn't. Is that fair?
9 A. Yes.
10 Q. So no question of there being no appetite as far as you
11 were concerned?
12 A. No question at all, not as far as I am concerned, no.
13 MR UNDERWOOD: Good. Thank you very much indeed, Mr Cooke.
14 As I didn't say to you, but I know you understand, other
15 people may have some more questions.
16 A. Thank you.
17 MR WOLFE: My witness.
18 MR ADAIR: No questions.
19 MR McGRORY: I have one or two questions, if I may.
20 THE CHAIRMAN: Yes, Mr McGrory.
21 Questions from MR McGRORY
22 MR McGRORY: My name is McGrory and I represent the family.
23 Your purpose in attending the consultation was what
24 precisely?
25 A. Well, it is to be present to hear exactly what is going
18
1 on between the investigating police and the Director of
2 Public Prosecutions and to represent the chief constable
3 at that.
4 There were contentious areas at times between the
5 police and the DPP, and we have just explored one of
6 those avenues, where perhaps the investigating police
7 wanted Article 3 to be used and a witness to be
8 compelled and the DPP was going another route, and the
9 chief constable representative, which was myself or
10 Superintendent Harvey, would have taken a balanced view
11 or tried to take a balanced view on, and, if necessary,
12 put our views to the chief constable who would then
13 speak direct to the Director on it if those views were
14 strong enough.
15 Q. Was the issue then -- did you go to the consultation
16 with it in your mind that the question of the use of
17 Article 3 was one that needed to be addressed?
18 A. I had no knowledge of this case before going to the
19 consultation and the use of Article 3 was not addressed.
20 I understood it to simply be an assessment of the
21 witnesses, which at that time on many occasions -- we
22 had sat in on many similar cases just to test the
23 veracity and truth of a witness. The fact that
24 Tracey Clarke came out with, "I don't want to go to
25 court", there was no suggestion -- at lease, I wasn't
19
1 aware of that before it actually happened in the
2 consultation room.
3 Q. Obviously, in order to fulfil your function at the
4 consultation, you would need to have read the papers?
5 A. Exactly.
6 Q. So you were familiar with the issues?
7 A. But I had not read the papers, because I think I said in
8 my statement --
9 Q. Sorry?
10 A. I was responsible for urban, for Belfast area for cases.
11 Superintendent Harvey was responsible for the rural,
12 which is Portadown. In this instance, this would have
13 been his case file, but he was not available to attend
14 this consultation. So I simply stood in for him. I did
15 not take the opportunity to read the file before I went
16 down for the consultation, because I was not informed
17 that there were issues going to arise during the
18 consultation.
19 Q. But then they did arise?
20 A. But then they did arise, yes.
21 Q. Then what did you do after that? Would you have
22 reported back to Mr Harvey or would you have then
23 reported back to the crime secretariat?
24 A. Well, in practice what would have happened would be the
25 DPP, Mr Kerr and Mr Davison, in view of this, would have
20
1 probably reported through the chief constable that they
2 were thinking about taking a certain course, and then,
3 when that would arrive on Superintendent Harvey's desk,
4 no doubt he would be in touch with the investigating
5 police to see what their view was and then try to get
6 everybody round a table again and discuss all of the
7 issues, all the threats, all the assessments and then
8 hopefully arrive at a conclusion that satisfies
9 everybody. But it is very difficult.
10 Q. So what you are telling us is, when it comes to the
11 question of whether an Article 3 application should be
12 made to read a statement, the police, through your
13 office, if I may put it that way, even though you were
14 just deputising --
15 A. Yes.
16 Q. -- would have been involved in that decision-making
17 process?
18 A. Yes.
19 Q. But is the reason why you were not personally involved
20 in it because you were handing it back to Mr Harvey?
21 A. Exactly.
22 Q. Did you become aware during the consultation that there
23 was another aspect to Tracey Clarke's statement in
24 respect of what she had said about Reserve
25 Constable Atkinson?
21
1 A. No.
2 Q. That wasn't part of your focus?
3 A. No, no. I have no recollection of that at all.
4 MR McGRORY: Okay. Thank you.
5 THE CHAIRMAN: Yes, Mr Mallon?
6 Questions from MR MALLON
7 MR MALLON: Morning. I appear on behalf of Robert and
8 Eleanor Atkinson. My name is Mallon. I just wanted to
9 put two small matters to you.
10 In relation to Tracey Clarke, was a threat
11 assessment ever carried out?
12 A. I have no idea.
13 Q. Who would know?
14 A. I would imagine the DPP would know.
15 Q. Thank you.
16 Now, in relation to her evidence, you rely
17 principally, I think, on Roger Davison's note. Isn't
18 that right?
19 A. Yes, yes.
20 Q. That note is contained at page [17591] in the centre.
21 If that could be put up, please, and the centre
22 highlighted --
23 A. Yes.
24 Q. -- that deals with the situation with Tracey Clarke as
25 you remember it quite accurately. Is that right?
22
1 A. Yes. Well, those are Mr Davison's notes, so yes.
2 Q. That seems to be what you remember.
3 A. Yes.
4 Q. Did anyone specifically ask her if she was telling the
5 truth? It doesn't appear to come out from that note.
6 A. No, no. I can't remember anybody asking the question,
7 "Are you telling the truth?"
8 MR MALLON: Thank you.
9 Questions from MR EMMERSON
10 MR EMMERSON: Mr Cooke, I want to ask you some questions now
11 on behalf of the Director of Public Prosecutions and
12 I want to return, please, to this question that you were
13 asked by Mr Underwood about who said what during the
14 consultation on 17th October.
15 First of all, do we understand the position
16 correctly that, without Mr Davison's notes, you have
17 really a very scanty recollection of the conversation?
18 A. Yes.
19 Q. So is it fair to say that independently of reading that
20 note, you wouldn't be able to answer that question one
21 way or the other who it was that mentioned fear, if
22 anyone?
23 A. Yes.
24 Q. You said that the reason she was giving was her
25 boyfriend. Correct?
23
1 A. Yes, according to the note, yes.
2 Q. That's based on the notes itself?
3 A. Yes.
4 Q. Can I just ask you, please, to look at page [17634]?
5 This is an extract from the written opinion of
6 Gordon Kerr, Queen's Counsel, who was present during the
7 course of this consultation. If I could just pick it
8 up, please, five lines down, with the sentence:
9 "I would have been content", down to about
10 two-thirds of the way down. Mr Kerr indicates there:
11 "I would have been content to give full weight to
12 her evidence in my opinion. It was clear that she may
13 be a reluctant witness and I explored this with her
14 first of all and then discussed it with her parents and
15 the police. She stated that she did not want to give
16 evidence. She further stated that the reason she did
17 not want to give evidence against Hanvey was that she
18 still loved him and that, as against the others, they
19 were her friends. She realised the importance of the
20 matter but was quite clear that she would not give
21 evidence. Were there evidence upon which it would have
22 been proper to make an application under Article 3 ...
23 I would advise so doing. The position, however, was
24 that it was only her parents who said anything which
25 would have laid the grounds for this. On the basis of
24
1 her declared reason for not wishing to give evidence, no
2 application could legitimately have been made."
3 Do you see that?
4 A. Yes, I do.
5 Q. It seems from Mr Kerr's note of the consultation that he
6 was clear the question of fear, if it was mentioned, was
7 mentioned solely by her parents and her given reasons,
8 her stated reasons, were purely those related to love
9 and loyalty. Do you see that?
10 A. Yes, I do.
11 Q. Are you in a position to contradict that?
12 A. No, I am not.
13 Q. Can I ask you then, please, to be shown on [18345], and
14 in particular paragraph 3?
15 Can I ask you, first of all, Mr Cooke, do you
16 remember receiving a telephone call from
17 Mr Raymond Kitson asking you about the consultation and
18 checking with you your view of whether there was
19 a reasonable prospect of compelling Tracey Clarke to
20 give evidence?
21 A. I can't recall that. I would have spoken to Mr Kitson
22 almost five days a week for ten years on a range of
23 stuff. So it is another phone call.
24 Q. We know that Mr Kitson spoke to Mr Irwin as
25 investigating officer and P39, who had been dealing with
25
1 Tracey Clarke.
2 A. Yes.
3 Q. It appears from this memorandum that, when he spoke to
4 Mr Irwin, he indicated that he had already spoken to you
5 as one of the officers who attended the consultation and
6 that it was your view also that there was little or any
7 prospect of Witness A giving evidence, it says.
8 I think the position is that your view was there was
9 no prospect in practice of compelling her. Is that
10 right?
11 A. That's right, yes.
12 MR EMMERSON: Thank you.
13 MR WOLFE: No questions.
14 MR UNDERWOOD: Nothing arising out of that.
15 THE CHAIRMAN: Thank you.
16 MR UNDERWOOD: Thank you.
17 (The witness withdrew)
18 MR UNDERWOOD: Sir, I promised to read the statement of the
19 witness we are calling J at a convenient moment. This
20 is a convenient moment, subject to what you say.
21 THE CHAIRMAN: Yes.
22 (Statement of WITNESS J read)
23 MR UNDERWOOD: We find it at page [80875]. He is a witness
24 who deals with a number of matters. All of them will be
25 taken as read, but can I just highlight a couple of the
26
1 paragraphs, please?
2 In paragraph 2, he tells us:
3 "I am an officer in the PSNI but have been on sick
4 leave since July 2004. In April 1997 I was attached to
5 Regional Crime Squad at Gough Barracks in Armagh.
6 I reported to Acting Detective Inspector H. I was not
7 involved in the murder investigation or the
8 investigation of the complaint. My first involvement in
9 the Robert Hamill case was around April 2001 working
10 with K, the SIO."
11 If we go over the page to [80876] and have that
12 page and [80877] up, perhaps. It is paragraph 10
13 I wanted to go to:
14 "I visited Andrea McKee on 27th January 2004 at her
15 home. DS Munn from witness protection was with me
16 because she had received a threat and I took him to
17 facilitate an introduction. He wanted to speak to her
18 about what could be offered to her in terms of changing
19 home, etc. I believe the police instigated this rather
20 than Andrea McKee asking for it. She was adamant that
21 she did not want to leave her home, and, if she had
22 entered witness protection, she would have had to move
23 quite a distance away. She did tell us that she was
24 determined to give evidence. She seemed determined to
25 see it through in spite of concerns for her family."
27
1 As I indicated on I think Friday, this witness is
2 too unwell to give evidence, unfortunately, and
3 I appreciate, of course, there may be some issue about
4 that and it would have been preferable to have him
5 available to be questioned about it, but there we are.
6 THE CHAIRMAN: So now we adjourn to read --
7 MR UNDERWOOD: Please. Would you forgive me?
8 What has happened is that Mr Kitson, who is the next
9 witness, has very kindly written an extensive witness
10 statement. I apprehend that the purpose of that on the
11 part of the PPS is that it gives a very useful
12 chronology, because Mr Kitson, although not involved at
13 every stage in all the investigations concerning the
14 DPP, was involved in quite a few of them. For technical
15 reasons, that was not available until late last night.
16 So people have not had a chance to go through it.
17 As I say, it is quite extensive. So I have put
18 Mr Kitson back until 2 o'clock with a view to everybody
19 having a chance to take it on board.
20 THE CHAIRMAN: Very well. 2 o'clock then.
21 MR UNDERWOOD: Thank you.
22 (11.13 am)
23 (The luncheon adjournment)
24 (2.00 pm)
25 MR UNDERWOOD: Mr Kitson, please.
28
1 MR RAYMOND ANDREW KITSON (sworn)
2 Questions from MR UNDERWOOD
3 MR UNDERWOOD: Good afternoon, Mr Kitson. Can I ask you
4 your full names, please?
5 A. It's Raymond Andrew Kitson.
6 Q. Thank you. I think you have signed a witness statement
7 for us on 14th September 2009. Is that correct?
8 A. That's correct, yes.
9 Q. We will put it up on screen.
10 A. Okay.
11 Q. It runs to 35 pages.
12 A. Yes.
13 Q. Can I just go straight to page 35 and get you to
14 identify your signature, please?
15 A. Yes.
16 Q. Is that your signature?
17 A. Yes.
18 Q. Is that your statement?
19 A. It is, yes.
20 Q. Are the contents true?
21 A. Yes.
22 Q. Thank you. I want to ask you, first of all, about the
23 relationship between the DPP and the police in 1997.
24 If we look at paragraph 4 of your statement on
25 page [1], you tell us in the third sentence:
29
1 "It was the duty of the RUC to investigate offences
2 and furnish the relevant information to the Director.
3 The Director could then request further investigation
4 and/or draw particular attention to aspects of the
5 investigation, but the conduct of the investigation was
6 for the police alone."
7 Then over the page, [2], paragraph 5, you say:
8 "Once a crime file was submitted, the DPP lawyer
9 dealing with the case would consider whether there was
10 sufficient evidence to allow an informed decision as to
11 prosecution to be taken."
12 Then if I could just draw your attention to
13 paragraph 19 on page [6]:
14 "Article 6(3) enables the DPP to refer a matter to
15 the chief constable for investigation where it has come
16 to the DPP's attention that an offence may have been
17 committed which is not currently the subject of a police
18 investigation."
19 Taking all that together, is this the position:
20 where police are investigating something and there is no
21 file, there may be some dealings between the police and
22 the DPP in 1997, but that the conduct of the
23 investigation was for the police?
24 A. I think the basic broad principle is that investigation
25 and reporting of offences is for the police and it's for
30
1 the Director to take decisions as to prosecution. Okay?
2 Within that broad principle, a precept of separation
3 of functions was there since 1972. That's the
4 Prosecution of Offences Order, which set up the old
5 Department of the Director of Public Prosecutions.
6 There were arrangements in place at 1997 for police to
7 arrange to consult with the Director's staff and on
8 those occasions the main purpose was to avoid police
9 making unnecessary enquiries or for the Director's
10 office to point up aspects of an investigation, to point
11 up further enquiries or additional information that
12 police might want --
13 Q. Just pausing there on that, you have also kindly
14 provided us another document. Can we look at [75373]
15 just to see if we are talking about the same system?
16 At paragraph 3 you write there:
17 "On 28th July 1978 the Director wrote to the
18 Assistant Chief Constable (Crime) of the RUC:
19 "'It is clearly in the interests of everyone, but
20 particularly police and the prosecuting authority, that
21 investigations which are undertaken by the police should
22 be directed towards relevant issues and matters.
23 Accordingly, if there is any doubt as to what issues
24 and matters are the relevant ones, then police should,
25 at or near the outset of their investigations, consult
31
1 with the Director's office. Consultation with the
2 Director's office should therefore be arranged at
3 an early stage in any case in which the issues are not
4 clear or there is any room for substantial doubt as to
5 the course which the investigation ought to pursue'."
6 Is that what you are describing?
7 A. Yes. I was just saying there, in fact, the police could
8 arrange to consult, yes.
9 THE CHAIRMAN: Is it fair to say there was the broad
10 principle, but, on appropriate occasions, exceptions
11 were made as to --
12 A. When you say "exceptions", I mean --
13 THE CHAIRMAN: Seeking advice from the DPP or the DPP
14 volunteering.
15 A. Well, no. I have just said there were arrangements in
16 place that the police could come and consult with the
17 Director's office. That was mainly to reduce
18 unnecessary police enquiries or point up some enquiry
19 which the police might want to pursue.
20 THE CHAIRMAN: Yes.
21 MR UNDERWOOD: Then I want to deal with the position before
22 the delivery of a file by the RUC to the DPP --
23 A. Right. Okay.
24 Q. -- where suspects were in custody and there was
25 a question of bail.
32
1 How would the DPP interact with the police then?
2 A. Well, if you are talking about bail applications in the
3 Magistrates' Court or bail applications in the
4 High Court -- it probably doesn't matter -- police would
5 arrange to consult with the prosecutor who was dealing
6 with the bail application and inform the prosecutor of
7 any matters which were relevant to bail.
8 Q. Right. Was that in any sense a two-way street? Would
9 the prosecutor have, for example, asked for information
10 upon which you would base a decision whether to seek
11 a further remand?
12 A. Well a prosecutor always has to ensure that there is
13 a sufficient basis for seeking a remand for people
14 whether it be actually simpliciter or in custody.
15 Q. If the police say, "This is where we are at the moment
16 with this", and the prosecutor thought, "This is
17 a borderline case for seeking a remand", could the
18 prosecutor say, "Could you please go and re-interview
19 this person?" or "Could you hurry this forensic
20 scientist up?" or something like that?
21 A. If the prosecutor thought there was not a sufficient
22 basis for seeking a remand, the prosecutor would not
23 seek the remand.
24 Q. If we look at [31608] --
25 A. Yes. It is coming up. Yes.
33
1 Q. -- this is --
2 A. That looks to be my handwritten minute.
3 Q. It is, of 13th May. I can take you to the first page,
4 if you like, if that will help you. It is [31603].
5 A. No. I am quite -- I recognise that, yes.
6 Q. We know, of course, because you have discussed this in
7 your statement, that this was a meeting with these
8 officers and DPP officials present.
9 Can you help us about where in the structure of what
10 we have just been discussing of the interplay between
11 RUC and DPP this meeting would have fitted?
12 A. Well, as you know, that meeting followed upon
13 a previous -- a meeting the previous day with the then
14 Deputy Director. I was not aware of that meeting. What
15 I was aware of, of course, was the incident which led to
16 the death of Robert Hamill. I was the circuit assistant
17 director for two circuits, the Belfast circuit and the
18 Eastern circuit, and the murder had taken place in the
19 Eastern circuit. So I would have had overall
20 responsibility for cases arising in that area.
21 It's a 4.00 pm meeting on an afternoon. I don't
22 know what stimulated it. Obviously it was the previous
23 meeting beforehand. The then senior assistant director,
24 the position which I now occupy, telephoned me to say
25 there is a meeting with police here, could I join.
34
1 I have set out both in handwriting and I think --
2 well, I know I have a written minute of the meeting,
3 which sets out what I consider to be the relevant issues
4 there
5 Q. Was this the police informing the DPP so that the DPP
6 could make decisions about bail, or was this the police
7 coming to the DPP as a result of that letter we have
8 just been looking at, where the police should, as it
9 were, focus their investigations with the assistance of
10 the DPP or what? Can you help us with that?
11 A. As far as I was concerned, and you can see from my
12 typed-up minute, I thought that was a meeting -- really,
13 the principal discussion points were the bail
14 applications which were going to take place very soon
15 thereafter.
16 That, to my mind, was not any sort of strategic
17 meeting in relation to the course the investigation
18 should take place.
19 Q. I will come back to the question of what it says about
20 Atkinson in a minute, if I may, but can I just direct
21 your attention to page [00927]?
22 The RUC kept a policy file briefly between 9th and
23 30th May.
24 A. Sure.
25 Q. Here we have policy decision number 14.
35
1 A. Uh-huh.
2 Q. "Date of decision: 13th May 1997. Officer making
3 decision: DC Superintendent McBurney.
4 "Decision: direction from DPP -- speak to
5 Professor Crane.
6 "Reasons: to establish his findings and views as to
7 cause of death."
8 Now, we can't ask Mr McBurney about this, but it
9 looks like he took the view that either before or after
10 that meeting on that day he was directed by the DPP to
11 speak to Professor Crane. What do you say about that?
12 A. Well, it's his word "direction". I don't think that's
13 the word I would have used. If I recall -- in fact, if
14 you look at the consultation, there was an issue about
15 the cause of death. In fact, Professor Crane, as
16 I understand it -- if I can recall the meeting,
17 Professor Crane was saying words to the effect like, "He
18 shouldn't have died". So there was an issue about the
19 cause of death.
20 Now, clearly, the cause of death would have been
21 an issue relevant to any bail application or indeed it
22 probably would have been relevant to any decision I was
23 taking as to whether to seek further remands. So
24 I thought it was only sensible and reasonable to try to
25 resolve that issue as soon as possible with
36
1 Professor Crane. So, therefore, I think the word
2 "direction" is not an appropriate word. He has
3 interpreted it as a direction, I think wrongly.
4 Q. Okay?
5 A. In any event the police would have, as a matter of
6 course, obtained the post mortem report in the case
7 anyway.
8 Q. If we jump back to [31611], this appears to be
9 a continuation of your note of 13th May, but if
10 I understand your statement right, what you are saying;
11 in fact, this was written afterwards. Is that right?
12 A. Yes. That's correct, yes.
13 Q. Could this be the sequence then? You have a meeting at
14 4.00 pm. You say something which Mr McBurney regards as
15 a direction to go and speak to Professor Crane. He goes
16 and does it. He then reports back to you and this is
17 the minute of what he reported back?
18 A. Yes. That was a confirmation then sufficient for me to
19 say prima facie that the cause of death was attributable
20 to the head injury which therefore would have supported
21 any further consideration I would have had about
22 remanding the people.
23 Q. Yes. You have a causal connection between the assault
24 and the death?
25 A. Well, prima facie that was. It was only the oral
37
1 indication from the pathologist.
2 Q. Can you help us more about this on [31608]? I promised
3 I would come back to the Atkinson question.
4 A. Yes.
5 Q. You very helpfully tell us in your statement that you
6 would have derived from the meeting, either by being
7 told or by reading the Tracey Clarke statement, the
8 tip-off allegation against Atkinson. Is that fair?
9 A. I certainly was provided with the statement of
10 Tracey Clarke. What I can't recall is whether, in fact,
11 Mr McBurney actually specified or stated specifically
12 the allegation or whether it was a process of me reading
13 quickly through the statement.
14 Q. I am going to push you as hard as I can on this for
15 recollection. If in the course of this meeting you had
16 simply picked up the tip-off allegation from the
17 statement and you were discussing Tracey Clarke's
18 credibility and the witnesses available here, is this
19 something you would have discussed?
20 A. I am sorry. I think you would need to rephrase that
21 question.
22 Q. If, in the course of the meeting, you had picked up
23 rather than being told about the tip-off allegation --
24 A. Yes.
25 Q. -- and bearing in mind you were discussing
38
1 Tracey Clarke's credibility in here, would you have
2 raised this question or would you have just made a note
3 for yourself?
4 A. I can't recall at this remove, but certainly I can see
5 that, in fact, I have a note to the effect about her
6 credibility:
7 "No criminal record. Respectable. Police assess
8 her as a good reasonable witness."
9 Q. See if this helps. It may be a statement of the
10 obvious, but you have written for yourself here:
11 "Subject to further investigation."
12 You couldn't have got that from the statement of
13 Tracey Clarke, could you?
14 A. No, that's a completely different reason. That's in
15 relation to Atkinson.
16 Q. I am talking about Atkinson. I am raising the question
17 with you here and pushing your memory as far as I can
18 what happened about Atkinson at the meeting, and you
19 have said that it was in Tracey Clarke's statement, the
20 allegation of the tip-off.
21 A. Sure, yes.
22 Q. But you can't remember whether anything was said about
23 Atkinson to you in relation to the tip-off. Is that
24 right?
25 A. No. What I said was I can't remember if Mr McBurney
39
1 mentioned it to me or whether I picked it up from the
2 statement.
3 Q. That's what I am saying.
4 A. Yes.
5 Q. You can't remember whether McBurney raised it.
6 A. Yes.
7 Q. Then I went on to ask you whether, actually, if you had
8 seen it in the statement, you would have commented on it
9 in the meeting.
10 I think your answer to that is you can't possibly
11 say. Is that fair?
12 A. I can't say.
13 Q. Right. Now, look at this again:
14 "Atkinson said nothing. Would have known all the
15 people. Subject to further investigation."
16 You could only have got the comment, "Subject to
17 further investigation" from a discussion, couldn't you?
18 A. That's right, yes.
19 Q. It could not have come just from the statement?
20 A. I accept that, yes.
21 Q. Does that help you to reconstruct your memory of what
22 happened?
23 A. No, because I can't say with clarity. Clearly there was
24 a debate/discussion about Atkinson, but the details of
25 that I just can't recall.
40
1 Q. Can you help us, bearing in mind all the discussions you
2 have had over the years with RUC officers about what the
3 RUC would have been doing having a discussion with you
4 at that stage about Atkinson?
5 A. Well, as I say, what I thought the main purpose of the
6 meeting was was to update the DPP having regard to the
7 previous meeting with the Deputy Director and with
8 particular focus on the bail issues which were
9 undoubtedly going to come up very, very soon.
10 Whether, in fact, the police officer in charge was
11 really just giving us an overall general briefing of
12 issues, I am not sure, but I didn't see that as anything
13 other than a meeting to essentially bottom out the bail
14 issues.
15 Q. You choose to write the words, "Subject to further
16 investigation". What I am trying to work out is what
17 was Mr McBurney doing because the issue about
18 Mr McBurney on Atkinson is a very crucial one for the
19 Inquiry. There are a number of issues, sub-issues, if
20 you like, about who he told and for what purpose about
21 the tip-off allegation.
22 You have chosen to write down, "Subject to further
23 investigation" here. Why would you have written that
24 down?
25 A. There was a meeting taking place and I was writing
41
1 down -- it's a busy note, so it is. I mean, the
2 discussion was going on. Clearly somebody has said,
3 "What's happening?", "He is subject to further
4 investigation". So I write that down.
5 Q. If anybody had said, "We are checking his phone
6 records", would you have written that down specifically
7 do you think?
8 A. I would have thought something of that particularity,
9 probably, yes.
10 Q. Thank you. I want to move to the delivery of crime
11 files. If we look -- let's just see if we can get the
12 sequence right here -- at page [18122] -- we can enlarge
13 the text of this.
14 A. Sure.
15 Q. It is 5th August 1997. It is a note from the registry:
16 "R v Lunt, Hanvey, Hobson, Bridgett, Forbes and
17 Robinson.
18 The director has asked that this case should be
19 drawn to his attention before final directions are
20 issued.
21 In considering this case and any associated
22 complaint file, the directing officer is referred to the
23 case of R v Dytham."
24 It gives the reference.
25 Firstly, can we just clear up the case of Dytham is
42
1 a case on the test for neglect for a police officer. Is
2 that right?
3 A. Misfeasance in a public office, yes.
4 Q. It is a case where a police officer stood by while
5 somebody was beaten to death?
6 A. I think he was round the corner, but leaving that
7 aside...
8 Q. There we are then, on 5th August, with this note. The
9 murder file, as far as we can see, was received by the
10 Director's office on 7th August.
11 Again I can refer you to a note, if you like, on
12 that. [18335].
13 A. No, I am happy enough with that, yes.
14 Q. For the sake of the record, paragraph 4 here. This is
15 a note of yours:
16 "The police investigation file in relation to the
17 death of Robert Hamill was received in this office on
18 7th August 1997."
19 Now, in practical terms, would the note that we have
20 just seen have been attached to the file when it came in
21 A. The note is an internal minute.
22 Q. Yes.
23 A. So the file would have come in from police and then the
24 note would have been placed on the file.
25 Q. Yes. That's what I am asking.
43
1 A. Yes.
2 Q. When it came in, the note would have been put on the
3 file?
4 A. When it came in, the note would have been put on the
5 file.
6 Q. I am not suggesting the police knew about it before they
7 gave you the file?
8 A. I thought your question was: would the note have come in
9 with the police file?
10 Q. Would a copy of the note also have been put on the
11 neglect file that subsequently came in?
12 A. It should have been, yes. I don't know whether it was
13 or not, but possible, yes.
14 Q. Certainly this crime file for the murder would have had
15 a copy of that note on it. Is that right?
16 A. It would have had the original note on it probably.
17 Q. Ah! So that would have been the only one extant, would
18 it?
19 A. Probably, yes.
20 Q. Right. How would you have read that note we were just
21 looking at, at [18122]? Can we see it again?
22 Again, in practical terms, what would you have taken
23 that to enjoin you to do?
24 A. Well, that file would have come to me and I would have
25 been aware that the Director wanted -- he would have
44
1 wanted to know what was happening in the case before, in
2 fact, final decisions were taken.
3 Q. How did you read, or how do you now read, the phrase
4 "any associated complaint file"?
5 A. Pretty simply and that is, in fact, if there was
6 an associated complaint file coming in with that --
7 related to that file, it would have been sent again to
8 me and it would have been looked at.
9 Q. Right, and -- I am so sorry, go on.
10 A. I am not sure what's behind that question.
11 Q. I am not proposing to explain what's behind my questions
12 unless you can't understand the question.
13 A. Okay.
14 Q. Tell us again on this what you understood the referral
15 to the case of Dytham to mean?
16 A. Could I see who actually wrote that?
17 Q. Yes, of course. Let's open it up. Ah! That's not
18 going to help you. You can see an unredacted one.
19 MR EMMERSON: We can probably assist. I think the author is
20 a man called xxxxx. I don't think this is sensitive.
21 A. That explains it. xxxxxx, at that stage, was the
22 Director's research assistant. There were arrangements
23 in place whereby cases of sensitivity, of particular
24 public interest would have been brought to the
25 Director's attention. He has obviously had a quick look
45
1 at it and the case of Dytham would have occurred to him
2 in the sense that he is thinking the allegation where
3 the police officers failed to comply with their duties.
4 So it is just a little hint to people. It was no more
5 than that.
6 Q. Two things arising out of that. This was written two
7 days before the file arrives at the DPP, so how would he
8 know that?
9 A. Sorry. Could I just see ...
10 Q. This is 5th August.
11 A. Unless the date is wrong. I have no idea.
12 Q. Right. The second is: how would you have read it at the
13 time when what you are expecting is a murder file and
14 what you are being asked to do is keep in mind Dytham?
15 A. No. That's in relation to the associated complaint
16 file.
17 Q. Well:
18 "In considering this case and any associated
19 complaint file, the directing officer is referred to the
20 case of R v Dytham."
21 Tell us again, how do you read that?
22 A. I don't read it of any particular relevance other than
23 the fact that, if the Director was aware that the
24 general allegation was that police officers had stood by
25 and failed to intervene, that, in fact, he, in his mind,
46
1 would have been thinking, "The case of Dytham is
2 potentially relevant".
3 Q. Potentially relevant to the murder?
4 A. No, I would have said it was potentially relevant to the
5 complaint file potentially.
6 Q. So you would have read this by way of ignoring the
7 reference to this case. Yes?
8 A. I am not saying I would have read it one way or the
9 other. I think it was just a little note to ensure when
10 the lawyer who was dealing with the case and the
11 associated complaint file had in mind there was the case
12 of Dytham.
13 Q. Okay. Then again, on the sequence here, the murder file
14 itself anticipated that there would be a neglect file
15 I think, and again I can show you a document on that.
16 [15952]. The final paragraph on this page is part of
17 the confidential attachment to the murder file.
18 A. I remember that.
19 Q. I will just read it in, if I may:
20 "Due to the implications made reference a serving
21 police officer, namely, Reserve Constable Atkinson, who
22 has many contacts within the Portadown station, but who
23 now serves in Craigavon RUC station, it was felt
24 appropriate to refrain from identifying the witness at
25 this stage. In addition, a separate DPP file is being
47
1 submitted which will include this allegation."
2 A. You have used the word "neglect file" there. I think it
3 is more -- not I think it is more -- that, to my mind,
4 was to do with the allegation of the reserve constable
5 informing Hanvey, tipping off Hanvey for want of
6 a better word.
7 Q. I am shortcircuiting it, because, as we all know, in the
8 end the neglect and the tip-off allegation were included
9 in one file.
10 A. That's correct, yes, but I think that specific reference
11 is not to the neglect itself but it is to the actual
12 Atkinson allegation.
13 Q. Absolutely. You are quite right to correct me.
14 So there is a heads-up in the murder file that there
15 will be a further file to do with the tip-off. Yes?
16 A. Well, I certainly took it that way, yes.
17 Q. Again, let's just look at the sequence. The direction
18 to prosecute Hobson was made on 20th January 1998,
19 I think. I can show you a document if you need it?
20 A. No, I will take your ...
21 Q. Thanks. But by that stage, the tip-off file, and,
22 indeed, the neglect file had not arrived, had they?
23 A. I think -- you could correct me -- I think it came in in
24 February.
25 Q. It did. It was either or the 12th or the 13th. There
48
1 is some debate about which of those days it was.
2 A. Yes.
3 Q. Having decided that there would be a prosecution of
4 Hobson for murder, as I understand your evidence, you
5 did not make the decision which witnesses would be used.
6 Is that right?
7 A. That's correct. I think you will recall from the
8 history that the file originally came in in August.
9 I had a preliminary look at it, realised that nothing
10 really could be done without the pathologist's report in
11 particular and had requested, in fact, those additional
12 papers, which had not been appended, but the PACE -- the
13 time it had taken us through to October when we weren't
14 in any position -- we were under pressure in the
15 Magistrates' Courts, I then delegated -- which I should
16 have done in the first instance, arguably -- to
17 Roger Davison, one of the case officers, to deal with.
18 Q. Mr Davison then decides, as we now know, to use
19 Mr Atkinson as a witness in the prosecution. Is that
20 right?
21 A. Yes, that's correct.
22 Q. Did it occur to you, before making a decision, either to
23 prosecute Hobson or not to prosecute others to wait for
24 the tip-off file?
25 A. Well, I think it would have -- the normal course of
49
1 events, I think we would have waited for the tip-off
2 file, but I think one has to bear in mind the way
3 matters progressed or developed, let's say.
4 I think you will see that when I gave the file to
5 Mr Davison to progress it insofar as he could -- and we
6 still would have had to wait for the pathologist's
7 report, forensic report -- he had this what I think can
8 only be referred to as a coincidental discussion with
9 Irwin, and it was at that stage that Irwin said to him
10 words to the effect -- I mean, I can go through the
11 statement and pick it up precisely --"Look, since
12 Drumcree, attitudes have hardened and there may be
13 a difficulty with the witnesses".
14 That triggered off, I think quite properly, the
15 consultations with the witnesses, which then in turn led
16 to the decisions being taken.
17 Q. Uh-huh.
18 A. But, in the normal course of events, if things hadn't
19 developed, if matters hadn't developed in that way,
20 I think it was -- it probably would have been that
21 someone would have -- the lawyer would have waited for
22 the file relating to the Atkinson tip-off.
23 Q. That's what I am getting at. I can fully understand
24 why, with what Mr Irwin had told you about the
25 witnesses, there would be investigations into whether
50
1 the witnesses would attend?
2 A. Yes.
3 Q. That might rule out some prosecutions, but you make
4 a positive decision to prosecute Hobson for murder
5 before you get the file on the tip-off --
6 A. Yes.
7 Q. -- and also any associated file that might have to do
8 with neglect and whether the police officers got out of
9 the Land Rover.
10 A. Yes.
11 Q. Can you explain that for us?
12 A. Well, I was satisfied that the test for a prosecution
13 was met on the basis of the available evidence. That's
14 in respect of Hobson. In respect of the Atkinson
15 allegations in the first instance they were hearsay
16 allegations.
17 Q. You didn't know that, did you, because you had not seen
18 them? You made the decision to prosecute before you got
19 the file.
20 A. Sorry.
21 Q. I am asking you in sequence carefully. You decided to
22 prosecute Mr Hobson on 20th January 1998?
23 A. Sorry. Can I say -- sorry -- I was aware of the
24 allegations, because I had got the statement of
25 Tracey Clarke.
51
1 Q. But you didn't know what was going to be in the file,
2 did you; or did you?
3 A. No, I didn't know what was in the file, but I knew that,
4 in fact, the allegations were based on hearsay.
5 Q. No. Forgive me. You had no idea what was going to be
6 in the file. The police may have got other witnesses.
7 Or are you saying there were other meetings at which
8 you were told what was going to be in the file of which
9 we have no record?
10 A. I had no indication that was the position. These people
11 had been in custody and I didn't see any reason at
12 all -- sorry, Chair. I thought you were having a side
13 conversation there.
14 THE CHAIRMAN: Yes.
15 A. Okay.
16 THE CHAIRMAN: Don't let me stop you.
17 A. Okay. Thank you. I didn't see any reason, once I had
18 made the decision, that the test for prosecution was met
19 either to hang back on the allegation, particularly
20 given the fact that it was a hearsay allegation and
21 Tracey Clarke was no longer going to be available as
22 a witness, and the neglect file, I didn't see any
23 reason, on the face of it, given the evidence available
24 to me, to defer on that.
25 MR UNDERWOOD: Well, on that you had a direction from the
52
1 Director himself saying, "Before making any final
2 direction, you are to refer this file and any associated
3 file to me", and to bear in mind the case of Dytham.
4 Now, did you do any of that?
5 A. I informed the Director. I think there is a minute of
6 my decision or intention to take prosecution decisions
7 in relation to Hobson, yes. In fact, I think, if you
8 have it, there is an opinion of Gordon Kerr, and I refer
9 to the Director saying, "I intend to take prosecution
10 decisions".
11 Q. Did you bear in mind the case of Dytham?
12 A. In relation to the neglect?
13 Q. In relation to the murder.
14 A. But Dytham, to my mind, was not relevant at that stage,
15 if it was relevant at any stage.
16 Q. So not only did you read the note as ignoring
17 a reference to the murder case, you treated it as if it
18 didn't refer to the murder case. Is that right?
19 A. No, no. Sorry. I think that's not the way of it.
20 As I say, the note was something which the Director
21 would have just used as an alert to someone just to make
22 sure. I was quite content that the decisions -- that
23 the test for prosecution in relation to Hobson was met
24 and I didn't see any basis to defer until the neglect
25 file or the Atkinson file came in.
53
1 Q. Okay. When the neglect file came in, it demonstrated
2 a degree of concern, didn't it, about Atkinson?
3 A. You say concern. I think you would need to give me more
4 information.
5 Q. Let's look at page [09080].
6 THE CHAIRMAN: When you refer now to the neglect file,
7 that's the file which also includes the tipping-off
8 allegation?
9 MR UNDERWOOD: Exactly.
10 We see -- I am sorry. I should start at [09079],
11 I think. This is the back end, if you like, of the
12 neglect file.
13 A. Uh-huh.
14 Q. At 123 Mr McBurney says:
15 "Having assessed these papers, I am satisfied that
16 collectively, and as individuals, the four police
17 officers concerned did not wilfully neglect to perform
18 their duty on the date in question. Therefore, I
19 recommend no further action criminally or disciplinary
20 in this instance."
21 Then if we go on to paragraph 124:
22 "In addition to the Hamill complaint of inactivity
23 is an allegation based on hearsay and contained in the
24 statement of Witness A. I remember Robbie Atkinson's
25 name coming up and Allister Hanvey said that
54
1 Robbie Atkinson had been very good to him, because on
2 the Sunday morning after the incident in the town
3 centre, he rang him at about 8.00 am and told him to get
4 rid of the clothes he was wearing", let's go over the
5 page, [09080], "the previous night. He also told me
6 Robbie Atkinson was ringing him every day to keep him up
7 to date with the police investigation. This aspect of
8 Witness A's statement cannot be taken lightly and in
9 many respects has a ring of truth to it.
10 "Consequently, this complaint in its entirety was
11 taken seriously and every effort was made to prove or
12 disprove its authenticity."
13 A. Yes.
14 Q. Then if we go over the page, [09081], we see at 132:
15 "In addition to the clothing aspect, the police had
16 also established telephone contact between the Atkinson
17 and Hanvey homes, which again supported the allegation
18 of Witness A."
19 Then go over the page again [09082]. At 133 we see:
20 "When interviewed about this particular aspect,
21 Robert Atkinson emphatically denied the allegation and
22 in consequence was asked to produce his telephone
23 account for that particular period. The subsequent
24 interview revealed contact on two occasions, namely
25 27th April 1997 and 2nd May 1997 between the Atkinson
55
1 and Hanvey homes. Again, Robert Atkinson denied
2 knowledge of the phone calls and suggested that his wife
3 was in a position to answer the queries."
4 Then it deals with what we are calling an alibi,
5 namely his wife and the McKees saying "We are party to
6 it."
7 Then if we go over to the next page -- I am sorry.
8 Let's go back again, [09082], paragraph 135.
9 A. Uh-huh.
10 Q. Picking up the last four lines:
11 "Having found no evidence other than the telephone
12 billing to substantiate the allegation of Witness A, one
13 can remain sceptical, but there is absolutely no other
14 evidence to substantiate the allegation by Witness A.
15 I therefore recommend no prosecution."
16 A. Uh-huh.
17 Q. So what we have is hearsay from Tracey Clarke. You have
18 the telephone call which, coincidentally or otherwise,
19 happens to have been made according to that statement,
20 and police remaining sceptical, and a recommendation of
21 no prosecution.
22 Is that a fair summary of that part of it?
23 A. A fair summary, yes.
24 Q. Did that call for any consideration as to whether to use
25 Mr Atkinson as a witness in the Hobson trial?
56
1 A. Well, I must say if I had been doing the actual
2 committal papers, given that, in fact, Atkinson did give
3 relevant probative evidence, not in relation to any
4 specific individual, but to the nature of the attack on
5 Mr Hamill, and given the fact this was a hearsay
6 allegation which was not going to eventually -- well,
7 couldn't be substantiated because of the absence of
8 Tracey -- the unwillingness, unavailability of
9 Tracey Clarke, I would nonetheless have considered
10 putting Atkinson on the committal papers, or at least
11 I can understand why Roger Davison did.
12 I would have thought it was an issue, though, for
13 disclosure.
14 Q. Well, let's take this in stages, if we may.
15 Firstly, do I take it from that that while you might
16 have advanced him as a witness, you certainly would have
17 considered whether to advance him as a witness in the
18 light of those matters. Is that fair?
19 A. I would have considered, yes -- I would have considered
20 the matters raised by police, but I probably would have
21 still put him in the papers.
22 Q. The risk is, of course, if you continue with him and you
23 give full disclosure of that, he is going to be torn to
24 bits. Is that fair?
25 A. There's a possibility that he will be subject to
57
1 cross-examination -- he may not be -- and query whether
2 the defence -- in fact, they didn't actually use it in
3 the trial of Hobson.
4 Q. We will have to deal with disclosure in a minute to see
5 whether they could. At the moment, I am just asking
6 whether you agree with me that there would have been
7 a risk, in advancing a witness like that as a witness of
8 truth, that there would be very damaging
9 cross-examination of him?
10 A. I can't say -- well, there was a risk that the defence
11 would use it, yes.
12 Q. Well, if you had told the defence that this witness was
13 the subject of a file which was open on the DPP's desk
14 in which the police said, "One can remain sceptical",
15 that would have been put to him, wouldn't it?
16 A. Well, I am not sure they would be entitled to the actual
17 comments by the police officer.
18 Q. Why is that?
19 A. They would have been -- because that's a view or
20 a judgment. What they would have been entitled to by
21 way of disclosure is the nature of the allegation made,
22 not the police view on it.
23 Q. I see. As I say, we will come to the disclosure. Your
24 view is you still would have carried on with him as
25 a witness?
58
1 A. I can understand why Roger Davison, looking at the file
2 and wanting to put the Crown case at its height, would
3 have used Robert Atkinson.
4 In relation to Hobson, the direct evidence was that
5 of Reserve Constable Neill, and that was the only
6 witness who gave evidence against Hobson, but in support
7 of the general tenor of Neill's evidence was Atkinson.
8 Indeed, one might argue that if you didn't put Atkinson
9 in, some might say you are not actually putting the
10 Crown case forward at its height.
11 Q. Can I just take you to paragraph 38 of your witness
12 statement?
13 A. Yes.
14 Q. It is at page [12].
15 A. Yes.
16 Q. You deal on the first page of that with the matters we
17 have just been discussing.
18 A. Uh-huh.
19 Q. If we go over the page to [13] of it, halfway down that
20 top paragraph on the right-hand side, you say:
21 "However, without the evidence of Tracey Clarke
22 there was no case against Hanvey and there was no other
23 evidence available to me in support of the tipping-off
24 allegation. It would, in those circumstances, have been
25 wrong to continue the prosecution or to have sought
59
1 a continuation of Hanvey's remand in custody."
2 A. Uh-huh.
3 Q. It looks there, if I might say so, as if your only
4 consideration of the tip-off allegation was in relation
5 to whether it was relevant to Hanvey. Is that fair?
6 A. At that stage.
7 Q. Bearing in mind you had already made the decision to
8 prosecute.
9 A. Yes.
10 Q. It is a month later or so that this tip-off/neglect file
11 comes in. What this paragraph seems to be saying is
12 that you, on reflection, think that might have been
13 relevant as to whether to prosecute Hanvey, but that's
14 the only consideration you give to it there.
15 A. I am not sure if I understand the point you are making.
16 Q. It is this. What I have just been asking you questions
17 about for a couple of minutes is whether a proper
18 consideration by a prosecutor of the tip-off allegation
19 would have led them to reconsidering whether to call
20 Atkinson at all, and you have agreed with me, I think,
21 that it would have done. Is that fair?
22 A. To consider calling Atkinson in?
23 Q. Yes.
24 A. Yes.
25 Q. But that's absent from this paragraph, isn't it?
60
1 Because in this paragraph all you say is that the
2 tip-off allegation was material to whether to prosecute
3 Hanvey.
4 A. That's just specifically referring to Hanvey. It's not
5 necessarily inclusive of every consideration.
6 Q. Okay. The decision was made, I think -- and again, we
7 can look at the page -- to pend the decisions on the
8 neglect file until the outcome of the Hobson trial. Is
9 that right?
10 A. Yes.
11 Q. So there was, as it were, a consequence of the note
12 setting out the Director's thinking of 5th August, which
13 was that, when the neglect file came in, there was
14 a read-across. Is that right?
15 A. Yes.
16 Q. But it was only one way, as far as we can see. Is that
17 right?
18 A. In what respect was it one way?
19 Q. That the murder trial was used to inform the neglect
20 consideration. The neglect file was not used to inform
21 the murder trial. Is that right?
22 A. Well, I am still not sure if I understand. In what way
23 would it have informed the murder file?
24 Q. You have already agreed with me I think that
25 a reasonable prosecutor would have considered whether,
61
1 in the light of the tip-off allegations contained in the
2 neglect file, you should continue to use Atkinson as
3 a witness. That's what I mean.
4 That should have happened, shouldn't it?
5 A. Yes, but I have already answered that; that, in fact,
6 I can understand why the prosecutor did use Atkinson as
7 a witness.
8 Q. You have said that the outcome was right. What you have
9 not been able to tell us is whether consideration was,
10 in fact, given by Mr Davison to dropping Atkinson in the
11 light of the tip-off. Are you giving that evidence?
12 A. No, I think you would have to ask Mr Davison that.
13 Q. That's why I have not been asking you about it. That's
14 why I am not interested, with great respect, in your
15 answer saying that you can understand why he did it.
16 What I am interested in getting from you is your
17 opinion on whether he should have done it, whether he
18 should have made the consideration, and I think we are
19 agreed, aren't we, that he should have done?
20 A. I think it was -- well, I would have done it.
21 Q. Now can we move on to disclosure?
22 As I understand it, disclosure was made at two
23 stages. Firstly, there would have been some disclosure
24 in those days at committal. Is that right?
25 A. After committal.
62
1 Q. Only after?
2 A. Yes. Well, except in the exceptional circumstances of
3 a bail application where there was something
4 particularly relevant -- that's ex parte Lee --
5 generally, the basic principle was disclosure. Primary
6 disclosure was made after a committal.
7 Q. Right. Here, this being a murder offence which had not
8 been descheduled, the disclosure was dealt with by the
9 disclosure officer at the Crown Court in its entirety.
10 Is that fair?
11 A. That's the way the system worked, yes.
12 Q. We have not heard from Mr Burnside yet, who was the
13 disclosure officer. It may well be that time has not
14 been kind to anybody's memory of this, but help us on
15 the system here: where you got a prosecution like
16 Hobson, murder, the murder file, the documents, whatever
17 documents they are, go to the disclosure officer that
18 arise out of the murder file presumably?
19 A. Yes, that's correct, yes, plus the related complaint
20 files.
21 Q. As a matter of course? Is that what you are saying?
22 A. Yes.
23 Q. So Mr Burnside would have had the neglect file?
24 A. He should have had the neglect file.
25 Q. Right.
63
1 THE CHAIRMAN: Is the disclosure officer a member of the
2 DPP's staff?
3 A. Indeed, Chair.
4 THE CHAIRMAN: Thank you.
5 MR UNDERWOOD: Now, can we go back to what I stopped you
6 telling me earlier on about the degree of disclosure?
7 Firstly, of course, there is Tracey Clarke's
8 statement with the hearsay tip-off allegation in it.
9 Would you have considered it proper to have disclosed
10 that to Hobson?
11 A. I would have either disclosed it or disclosed the gist
12 of it.
13 Q. In other words, that this man Atkinson was the subject
14 of an allegation that he had rung Hanvey on the morning
15 of the event and advised him to get rid of his clothes.
16 Yes?
17 A. Yes.
18 Q. Would you have regarded it as proper to disclose the
19 fact that telephone record checks showed that there was
20 a phone call from the one home to the other at that
21 time?
22 A. I have never given that thought, now, but --
23 Q. I don't want to put you on the spot about that. This
24 does not directly concern your evidence and if you have
25 not thought about that ...
64
1 A. I have not thought about that.
2 Q. You did tell me -- and let's test this -- that you would
3 not have thought it proper to disclose the police
4 opinion.
5 A. Yes. That's purely an opinion.
6 Q. What about the opinion of Mr Davison and Mr Kerr arising
7 out of their consultation with Tracey Clarke that she
8 was a truthful witness?
9 A. Again, I haven't given that any thought.
10 Q. Again, if you have not thought about it, I am not going
11 to press you on it. Do I get this as a drift then: that
12 facts would be disclosable; opinions would not?
13 A. Yes.
14 Q. Right. Is that fair?
15 A. I suppose it could depend on the individual
16 circumstances of a case --
17 Q. Yes.
18 A. -- but, as a general principle, you disclose facts, not
19 opinions.
20 Q. I am just trying to get a picture of this, you
21 understand. Let me test this.
22 Imagine that the neglect file had contained
23 a recommendation for prosecution on the basis that in
24 McBurney's view, rightly or wrongly, the evidence that
25 was presented in that file did justify prosecuting
65
1 Atkinson.
2 So his opinion, therefore, was that -- let's
3 hypothesise this -- that Atkinson was guilty and was
4 therefore asking you to agree with him.
5 A. First of all, he was not saying he was guilty. He is
6 saying there was sufficient to put Mr Atkinson on trial.
7 Now, if you are asking me -- going back to the
8 question I think you are asking me, "Would that have
9 been disclosable?", I wouldn't have disclosed that.
10 That, again, is an opinion of a police officer.
11 Q. What if the file was finely balanced and, without proper
12 consideration of the evidence emerging from trial and
13 further matters, the DPP couldn't form a provisional
14 view, but where you had a recommendation for prosecution
15 contained in the report itself, would you disclose that?
16 A. No. That's a recommendation purely and simply for
17 prosecution.
18 Q. So let me get this clear. When you are trying somebody
19 for murder and you are relying on the evidence of
20 a police officer, the fact that there may be a file
21 which may -- which contains a recommendation for
22 prosecution of that officer for assisting an offender
23 arising out of that matter and which might well turn
24 into a prosecution of him would not be disclosed to the
25 defence even though that officer was being called?
66
1 A. But what would be disclosed would be that, in fact, he
2 was under investigation. But that's different from the
3 opinions as to the police officer who is investigating
4 that.
5 Q. Okay. I want to move on to individual defendants here
6 and the consideration given to prosecuting them. I will
7 be fairly short about this.
8 Firstly, in general terms, we know that there was
9 the possibility in theory of using a statement like
10 Tracey Clarke's statement under Article 3 if the witness
11 was not to attend.
12 Can you tell us about how that worked in practice?
13 A. Well, again, I am not sure what you mean by how it
14 "worked in practice".
15 Q. How would Article 3 work in practice?
16 A. Well, I think what you are asking me is what
17 considerations would be given before a decision would be
18 taken as to whether --
19 Q. And by whom and in what order. Yes.
20 A. Okay. Well, clearly, if prima facie, you would go on
21 the basis that a witness is going to give evidence,
22 particularly if the witness is regarded as credible, but
23 if information comes through police or through any other
24 way that, in fact, the witness is not going to give
25 evidence, one would -- and it depends on what
67
1 information is available, but certainly, as
2 a prosecutor, you would wish to explore what the
3 position is, and if, in fact, the witness was not going
4 to give evidence through fear or through one of the
5 other vehicles, then you would obviously consider
6 whether to make an application to the court to have the
7 statement of the witness admitted under Article 3 of the
8 Criminal Justice Evidence, etc, (Northern Ireland)
9 Order.
10 Q. Does the fear have to be expressed openly or can this be
11 inferred?
12 A. I think it can be both.
13 Q. So if whoever it may be -- and we will come to whoever
14 it may be in a moment -- took the view that the reason
15 the witness was not going to give evidence was through
16 fear, even though that person was not expressing fear,
17 they can still apply to use that. Is that right?
18 A. I think one has to be very careful about coming forward
19 with that proposition. First of all, you have to have
20 leave of the court. Fundamentally, you have to prove
21 beyond reasonable doubt, on admissible evidence, that
22 the witness is in fear.
23 Now, if you are actually going back to the instance
24 of Tracey Clarke, the position was through the
25 consultation process with counsel that she was not
68
1 evincing any degree of fear at all. In fact, she was
2 quite categoric in saying that, in fact, her reason for
3 not giving evidence was her emotional attachment, her
4 love for Mr Hanvey.
5 Q. There was some discussion, I know, at that consultation,
6 about fear, and the preponderance of the evidence seems
7 to be that the fear was evinced by her parents rather
8 than by her.
9 Can I just ask you in principle here whether
10 a witness who has mixed motives for not giving evidence,
11 one of which is fear, could perhaps be used under
12 Article 3?
13 A. Well, if I recall correctly, there is a case I think
14 called -- I can't remember whether it is Quinn or
15 what -- where witnesses said they were not going to give
16 evidence because it was a non-scheduled -- it was
17 a non-jury court. I think that was countered by
18 previous evidence of not giving -- why they didn't give
19 evidence at committal.
20 So, in other words, the reason why they gave at the
21 Crown Court was not actually believed to be the true
22 reason, but I have to take you back. I mean, in the
23 Tracey Clarke case that wasn't the position. The
24 position was quite categorically she was saying she was
25 not going to give evidence because she was in love with
69
1 Hanvey.
2 Q. I am asking you about mixed motives. Imagine she said,
3 "I don't want to give evidence because: (a) I am in love
4 with Hanvey, (b) I am terrified what will happen to me
5 at the hands of paramilitaries"?
6 A. But my understanding is that that was not the position.
7 Q. No, no. I am asking you in principle. I am asking you
8 to help us here about how Article 3 was used.
9 If that had been the position, would Article 3 have
10 been usable in those circumstances?
11 A. I certainly think you would make the application to the
12 court.
13 Q. Right. Does it follow then, that if a witness is
14 telling you that she doesn't want to give evidence
15 because she loves the defendant but her parents are
16 saying "She is terrified" ...
17 A. Well, my understanding was that the parents didn't say
18 that she was terrified. My understanding of the note --
19 perhaps could you put it up --
20 Q. We will put it up in a moment.
21 A. -- was that, in fact, they were concerned or worried.
22 They were not terrified. Maybe I am wrong about that.
23 Q. We will dig it up. We will come back to that in
24 a moment.
25 We are agreed on this, are we, that if there was
70
1 evidence of a mixed motive and one of the motives was
2 fear, that would have been adequate at least to put it
3 in front of a judge?
4 A. I think one would have given consideration to it. It
5 would depend how strong the evidence was of that mixed
6 emotion, and it would depend also how persuasive or
7 compelling the other evidence was in relation to the
8 emotional attachment to Mr Hanvey and to Mr Hanvey's
9 friends.
10 Q. Right. Thank you. I will come back to that in a moment
11 and move on to Mr Bridgett.
12 MR EMMERSON: Do you want the reference?
13 MR UNDERWOOD: That would help, thanks.
14 MR EMMERSON: [17591].
15 MR UNDERWOOD: [17591]. Thanks very much.
16 Middle passage, the third of those paragraphs:
17 "At the end of the consultation she was asked about
18 the possibility of giving evidence. She stated that she
19 would rather die than give evidence. She said she
20 wouldn't give evidence because she loves
21 Allister Hanvey, to whom she was formerly engaged. She
22 stated that it was hard to give evidence against the
23 others because she knows them all. She and her family
24 are all very worried about the possibility of attack by
25 Loyalist paramilitaries."
71
1 A. I maybe don't want to get caught up in the language, but
2 you used the word "terrified" there. I think there is
3 a distinction between "terrified" and "very worried
4 about the possibility".
5 In any event, my understanding was that was
6 attributed to her family rather than her. My point is
7 that the very clear preponderance of the evidence was
8 that the reason why she was not giving evidence was
9 because of her affection, love for Hanvey.
10 Q. Right. Let's go back to Mr Bridgett then. The position
11 with Mr Bridgett is that you could have directed the
12 police to re-interview him about the blood. Is that
13 fair?
14 A. Well, my view on that was that, in fact -- again my
15 understanding is that the police knew about the blood on
16 Bridgett at a fairly early stage, because, although
17 I was not briefed with the minute of the meeting of
18 13th May, it is clear that reference was made to the
19 blood at that stage by McBurney to McGill, the
20 Deputy Director.
21 Now, what the police, in my view, should have done
22 at that stage was strike while the iron is hot, so to
23 speak. They had just interviewed him. They now had the
24 forensic evidence. They should have gone and
25 interviewed him about that.
72
1 To go back to your question, could I have requested
2 the police?
3 Q. Yes.
4 A. That is possible, yes.q
5 Q. I think to paraphrase the evidence you gave on this in
6 your statement your position is that there was nothing
7 to be gained by doing it at that stage?
8 A. From the prosecutor's point of view, yes. You had got
9 the best you could get and that was a lie, albeit in the
10 end that didn't make any difference to my ultimate
11 decision for prosecution or no prosecution.
12 Q. All I want to ask is this: once you had decided that, on
13 the evidence you'd got, there was insufficient to
14 prosecute him, there was nothing to lose, was there, by
15 asking him to be re-interviewed?
16 A. Well, as far as I was concerned, at that stage, when it
17 was six months down the line, there was no reasonable
18 expectation in my mind that, in fact, that would produce
19 anything.
20 That goes back to the point I am making. I really
21 think, in fact, if the police had that evidence -- and
22 depending on their view of whether it was possible,
23 after charge, to interview him -- they should have done
24 it much, much earlier
25 Q. Is there a fairness point here as well? You had this
73
1 man in custody for about six months by the time all the
2 elements are assembled: the forensic science evidence,
3 the pathology report. This is not meant in any way
4 critically. You were taking decisions under pressure.
5 Is that fair?
6 A. Well, there was a degree of pressure, yes. People were
7 in custody. The way the case was developing, I wouldn't
8 say it was disintegrating, but certainly it wasn't the
9 way it had been anticipated. The fact, though, that it
10 was under pressure does not mean to say that you take
11 quick and, therefore, incorrect or wrong decisions.
12 Q. As I say, it is not meant critically, but if, perhaps,
13 there had not been that sort of pressure, would there
14 have been a different consideration to the question of
15 whether to re-interview him at that stage?
16 A. From my point of view?
17 Q. Uh-huh, or were you purely informed by the fact that six
18 months on you were not going to get anything out of him?
19 A. If you are asking me to go back to my thinking at that
20 stage, I would say I didn't have any reasonable
21 expectation that after six months that would produce
22 anything.
23 Q. Okay. One other thing on Mr Bridgett and blood. We
24 know, of course, that Mr Marshall had found this DNA
25 match which was a small, round spot of blood of
74
1 Mr Bridgett's on Mr Hamill's jeans.
2 A. Yes.
3 Q. We also know that there were some other untested bloods
4 on Mr Hamill's clothing, including another piece of
5 blood on the jeans, which were not tested certainly at
6 that stage.
7 Was any consideration given to going back to
8 Mr Marshall and saying, "Can you look at the other
9 untested blood to see if any other of it is
10 Mr Bridgett's so you can determine anything from
11 spatter?"
12 A. Well, you are aware the reason how that came up, and
13 that was because we did get the forensic report. We
14 looked at it. Gordon Kerr, as counsel, said he wanted
15 more information in relation to the pattern or the blood
16 spattering. That was when I asked Roger Davison to
17 speak to, consult with, discuss the matter with the
18 forensic scientist.
19 As far as I was concerned, the forensic scientist
20 was quite -- he realised the relevance of the
21 questioning. He realised the reason why Davison was
22 talking to him. He never came up with any suggestions.
23 He was the expert in Northern Ireland in relation to
24 blood, and if he wasn't coming up with any suggestions,
25 I think it was reasonable for me to assume that, in
75
1 fact, there was nothing going to come of that.
2 Q. Right. Okay. I want to ask you about the possibility
3 of prosecuting Bridgett on res gestae evidence.
4 Can I just put some documents to you so we can build
5 a picture? At page [17631] we see the first page of
6 an opinion received on 22nd December 1997 from Mr Kerr.
7 If we go over the page [17632], paragraph 4:
8 "I have carefully considered the evidence as it now
9 stands. The pathology evidence is in my view of great
10 significance. Mr Hamill died as a result of repeated
11 blows during an attack on him when he was on the ground.
12 The participants in that attack are liable for his death
13 as participants in a joint enterprise. In view of the
14 pathology evidence, I do not feel the exact analysis of
15 roles referred to in my previous opinion is necessary."
16 Then he goes on to talk about Hobson. That was
17 advice that you accepted, I take it?
18 A. Uh-huh.
19 Q. Then if we look at the summary at page [17639], this is
20 an earlier advice by Mr Kerr. He sets out in very brief
21 terms what's said against Bridgett. The second half of
22 the page:
23 "He was originally referred to by Witness A. This
24 evidence is no longer available. Witness B named him
25 but only as someone injured. In any event, that
76
1 evidence is again unavailable. [Blank] saw him and
2 Dean Forbes at the back of the Land Rover but did not
3 see him do anything. Jonathan Wright saw him trading
4 punches with one person. This was a bit to the left of
5 the main fight. Constable Neill observed Bridgett
6 face-to-face with a male near the Land Rover. He had
7 a bottle of cider in his land. Later, after helping
8 taking Lunt to the Land Rover, he saw Bridgett with
9 blood around his mouth. Constable Silcock was told by
10 a woman that one youth had jumped on the head of one of
11 the injured men. A member of the crowd called to him.
12 He responded to 'Stacey'. He was bleeding from the
13 nose. This is clearly not admissible evidence against
14 him. Constable Cooke, page 198, places him as",
15 overleaf, [17640], "being at the front of a crowd trying
16 to get at the injured persons."
17 So I can finish building this picture, if we look at
18 [09220], this is Mr Silcock's statement. He says
19 towards the top:
20 "I observed two male persons lying on the
21 Church Street bound direction of High Street."
22 He describes them. Then if we go down, five
23 lines from the bottom:
24 "A large crowd of youths were in the vicinity of
25 these men. They were aggressive both verbally and
77
1 physically. On several occasions I pushed youths away
2 from the injured men as they appeared to try and kick
3 the men. One of the rowdy youths was pointed out to me
4 by a woman wearing a white top who alleged that this
5 youth", overleaf [09221], "had jumped on the head of one
6 of the injured men. This youth was wearing a grey,
7 charcoal top. He also had blood coming from his nose.
8 A member of this crowd called to this person, calling
9 him 'Stacey'. He responded to this name."
10 So taken together, what you have there is Mr Kerr
11 saying joint enterprise. You have evidence that
12 Bridgett is at the front of a crowd trying to kick two
13 men on the ground and Bridgett, being one of those, is
14 pointed out while this is going on, while the police are
15 fighting him off, saying, "He is one of those who jumped
16 on the head of one of the injured men".
17 The res gestae then is that woman saying, "He is one
18 of those who jumped on the head of one of the injured
19 men".
20 We know what Mr Kerr says about this, but can we
21 just take you to paragraph 60 of your statement?
22 A. Uh-huh.
23 Q. It is at page [21]. Thank you:
24 "I have also been asked about a passage in the
25 evidence of Constable Silcock. He recorded in his
78
1 witness statement that he had been told by
2 an unidentified woman at the scene that she had seen
3 a man jumping on Robert Hamill's head who was bleeding
4 from his nose and that this man had responded to the
5 name Stacey. In his opinion, Mr Kerr advised that this
6 was clearly inadmissible against Bridgett. That was
7 a view with which I agreed. It was the evidence of
8 an apparently anonymous witness who could not be
9 cross-examined. It did not appear to me to fall into
10 the category of res gestae, although I would have
11 deferred to the advice of counsel on this."
12 That's completely wrong, isn't it? The definition
13 of res gestae is you have a comment, the truth of which
14 you want to prove but you don't have the witness who
15 made the comment.
16 A. Although, as I understand it, the witness was
17 subsequently identified and didn't actually -- denied
18 making the result -- the comment.
19 Q. Did you take that view into account?
20 A. No. I didn't take it into account at the time, because
21 I wasn't aware of it at the time.
22 Q. That is not true either. The evidence we have heard is
23 that two attempts were made to find witnesses and that
24 they ran into the dust because xxxxxxxxx would not
25 cooperate.
79
1 A. To get back to your initial question.
2 Q. This is classic res gestae, isn't it?
3 A. Well, even if I accept it was, which I don't for
4 the moment, again the question is: would it be liable to
5 be admitted, given the fact that there was no
6 likelihood -- can't be cross-examination of the witness.
7 Q. I am sorry. That's the point of res gestae. You can
8 never cross-examine the witness who makes the comment
9 which you wish to introduce under res gestae. I am
10 wondering why you are saying it was ruled out as
11 res gestae because you couldn't call the witness?
12 A. Because I think a judge in this jurisdiction would not
13 allow, in a murder case, that evidence to be given, to
14 be admitted.
15 Q. Because?
16 A. Because I think it was so crucial to the case and, in
17 fact, yes, of course it is res gestae, but the absence
18 of the witness and the ability to cross-examine the
19 truthfulness of it, the judge would rule it as being
20 unfair.
21 Q. That's what you thought through, was it?
22 A. I have to say I was going on the advice of counsel.
23 Q. You didn't defer to counsel on the question of whether
24 Bridgett should be charged for affray, did you?
25 A. That's correct, yes.
80
1 Q. Why did you need to defer to him on the res gestae
2 point?
3 A. Because he is a counsel of great experience in relation
4 to the operational, evidential matters of the court,
5 whereas the fact that the decision in Bridgett was
6 a judgment on the evidence as I saw it.
7 Q. Finally, I want to deal with Mr Robinson and affray.
8 The position on this, I think, is that you disagreed
9 with Mr Kerr about whether there really was a case
10 against Robinson for affray?
11 A. Yes. I had initially formed a view at the start of my
12 consideration, when I was actually looking at the
13 murder, that the evidence wasn't sufficient.
14 Q. Again, we can look at that if you like, but the evidence
15 against Robinson is he is in there being very violent in
16 this crowd we are discussing that has been described by
17 others as a riot, and that he is being so violent that
18 he has to be belted in the stomach by Reserve
19 Constable Atkinson's baton.
20 A. Well, you are using the word "violent" as opposed to
21 disorderly and obnoxious and unruly.
22 Q. Never mind the words I am using. You know what the
23 evidence against him is, don't you?
24 A. Yes.
25 Q. How does that not constitute an affray?
81
1 A. Because I didn't see any evidence of direct violence
2 that he was involved in.
3 THE CHAIRMAN: I am not entirely clear. When you say in
4 your statement more than once that an "affray" means
5 fighting, I follow that you have to have a fight for
6 an affray. It doesn't mean, does it, that every person
7 guilty of affray has got to have joined in the fight
8 physically?
9 A. Not necessarily, Chair. That's right, yes.
10 MR UNDERWOOD: If we have a look at page [09685].
11 A. Yes.
12 Q. This is part of Mr Atkinson's statement.
13 A. Uh-huh.
14 Q. Take it from the top. The second line is describing the
15 situation, the context and then he gets to Robinson:
16 "The Loyalist youths were still trying to attack
17 both us and the Nationalists, and Constable Neill pulled
18 one of them from the crowd. Some of the rest tried to
19 intervene and I stopped them. I accompanied
20 Constable Neill to the Land Rover where I was confronted
21 by the male person in the bluish shirt whom we had
22 originally encountered. This person was very agitated
23 and grabbed me by the jacket. I broke free and he tried
24 to wrestle my baton from me. In the ensuing struggle
25 the leather strap was broken.
82
1 "Whilst I was struggling with this person, I could
2 see out of the corner of my that three youths were
3 jumping on the head of the male who was lying on the
4 ground outside Eastwoods. I broke free and went to the
5 injured person's aid where I remained until assistance
6 from other police arrived.
7 "All this time the Loyalist crowd taunted and tried
8 to attack. They had to be held back by police and at
9 one stage I struck a male dressed in a mustard-coloured
10 shirt, whom I believed to be called Rory Robinson, in
11 the stomach to prevent him breaking through police
12 lines."
13 Doesn't that describe an affray and his part in it?
14 A. I took the view that that was more in terms of
15 disorderly behaviour, obstructing police, being
16 obnoxious, being loutish, but not sufficient to amount
17 to affray in the sense that there was no evidence that
18 he, Robinson, had perpetrated or been involved in or
19 even had encouraged, Chair, any direct violence on any
20 of the injured parties.
21 Q. Being part of a crowd taunting and trying to attack men
22 on the ground, being held back by police, one of whom
23 has to strike him in the stomach with his baton?
24 A. Yes. As I say, that was well after the incident in
25 relation to Hamill and the others had taken place. That
83
1 was after the event.
2 THE CHAIRMAN: You say "after the event". The affray went
3 on after the two men had been put to the ground, didn't
4 it?
5 A. Well, part of it, you could say. That's your view,
6 Chair, that it --
7 THE CHAIRMAN: I am only thinking of the evidence we have
8 heard. The disturbance extended over quite a large part
9 of the junction, didn't it?
10 A. Yes.
11 THE CHAIRMAN: Not just the part where the two men lay on
12 the ground.
13 A. Yes.
14 THE CHAIRMAN: Or the parts.
15 A. Yes.
16 THE CHAIRMAN: There seems to have been violence continuing
17 after the two men were laid to the ground?
18 A. Well, that's possible, yes, but in relation to the
19 individual that I'm talking about, there's no evidence
20 that he took part directly in any violence.
21 THE CHAIRMAN: You don't see what he was doing as in any way
22 encouraging it or intended to encourage it?
23 A. No, Chair, I don't think so. In fact, what I see is
24 that he was being -- as I said, he was being obnoxious.
25 He was agitated and, in fact, he was obstructing police
84
1 from doing their duty.
2 THE CHAIRMAN: Yes. Very well.
3 MR UNDERWOOD: Thank you very much, Mr Kitson. Those are
4 the only questions I have.
5 THE CHAIRMAN: I see the time. We will break off now until
6 3.45 pm.
7 (3.30 pm)
8 (A short break)
9 (3.45 pm)
10 MR WOLFE: No questions.
11 THE CHAIRMAN: Yes, Mr Adair?
12 Questions from MR ADAIR
13 MR ADAIR: Thank you, sir.
14 Mr Kitson, I have just a few areas I want to cover
15 very briefly in relation to what you have told us.
16 If we could have page [31603] up. This is your note
17 of the meeting on 13th May with Mr McBurney and others.
18 Do I understand -- and it may be you don't
19 remember -- that you are saying that this note was taken
20 contemporaneously as the meeting progressed, or was part
21 of it contemporaneous and then part of it filled up
22 afterwards, for example, in relation to Professor Crane?
23 Can you remember?
24 A. I can't. That part there was contemporaneous with the
25 meeting.
85
1 Q. Right. So at the start of the meeting, naturally enough
2 you would be writing down first of all who is there, the
3 time it started and then the issues?
4 A. That's the way McBurney would have outlined the case,
5 yes.
6 Q. So it looks like the issues that were outlined to you at
7 the outset without any questions coming from you were
8 the medical evidence, the evidence, the extent of the
9 evidence, availability and so on, bail and Reserve
10 Constable Atkinson?
11 A. Yes.
12 Q. So right at the start of the meeting he is telling you
13 that there is an issue. Whether he expanded on it at
14 that stage, I don't know, but he is certainly making it
15 clear to you at that stage that there is an issue
16 concerning a Reserve Constable Atkinson?
17 A. Sure. I would accept that, yes.
18 Q. Can you remember, did you discuss, at that stage, what
19 the issue might be or anything about it?
20 A. If I look at the minute -- my handwritten minutes, they
21 went through the various issues and Reserve Constable
22 Atkinson came up at some stage.
23 Now, my note, if you go on a few pages, referring to
24 "should have known" or "must have known others".
25 Q. So the probability then, and I think we can probably put
86
1 it no more than that, from your note is that there were
2 these four issues described to you. Then they were
3 dealt with, it would appear, one by one? We can see the
4 first issue, medical evidence.
5 A. Yes.
6 Q. If we go to page [31608] --
7 A. Yes.
8 Q. -- this is where you eventually come to the issue of
9 Atkinson.
10 A. Uh-huh.
11 Q. Now, you have an exclamation mark and I think it is the
12 only exclamation mark, or certainly, if it is not the
13 only one, it is about the only one in your note. Can
14 you remember why the exclamation mark arises after
15 "Atkinson"?
16 A. No, I am only surmising. I could surmise, but I can't
17 say with any degree of certainty why I would put
18 an exclamation mark there.
19 Q. Might it or would it probably be that there was
20 a serious issue being raised by Mr McBurney about
21 Atkinson?
22 A. Well, there was a serious issue, because, in fact, even
23 as I have stated it there, if he would have known all of
24 the people involved and has actually not provided that
25 information to investigators, that in itself was
87
1 serious.
2 Q. Of course, at that stage, I think you have told us you
3 would have read the statement, I presume, of
4 Tracey Clarke?
5 A. I am not sure whether I would have read it before or at
6 the same time or afterwards.
7 Q. Okay.
8 A. The meeting was at 4 o'clock and, as I say, to my mind
9 the main issues were really about the bail.
10 Q. Okay, but then, to summarise this, it is clear that
11 Mr McBurney raised at the very start with you that there
12 was an issue in relation to Atkinson and then we know
13 that later on it was discussed; to what extent you can't
14 say, as I understand it.
15 A. I can't say, no, absolutely.
16 Q. Okay. Now, I want then -- were you -- just to finish on
17 that, you were content, even though you were aware from
18 the statement of Tracey Clarke that, if the allegation
19 was true, it contained an allegation of criminal
20 behaviour against Atkinson?
21 A. Uh-huh.
22 Q. If what Tracey Clarke said was true, that was assisting
23 offenders?
24 A. Well, even arguably knowing all the people and not
25 actually telling investigators about it would have been
88
1 a criminal offence.
2 Q. Another one?
3 A. Yes.
4 Q. So there was certainly potentially one, if not two,
5 criminal offences potentially against Atkinson?
6 A. Yes.
7 Q. We know, and there has been some criticism of the fact,
8 that the murder investigation in relation to
9 Robert Hamill and the neglect allegation coupled with
10 the tipping-off allegation were treated separately by
11 the police and separate files sent in.
12 A. Yes.
13 Q. Was there ever any thought by your office, or direction
14 given to the police, that the entirety of the
15 tipping-off and the murder should be treated as one
16 investigation?
17 A. No. I certainly didn't give any direction.
18 Q. It would have been open to you I take it -- and again,
19 I am not criticising you for this; I am just asking what
20 the position was back in 1997 -- to say to the police,
21 "Look, this is so intrinsically linked up with the
22 murder investigation that it should form part of the
23 murder investigation"?
24 A. I could have suggested it, but, in fact, the actual
25 operation or the method by which the police carried out
89
1 their investigation was essentially -- not essentially.
2 It was a matter for the chief constable.
3 Q. I understand, but it didn't occur to you to direct him
4 to do that?
5 A. It didn't occur to me, because I have to say I was
6 presented -- at the meeting was the chief detective of
7 the region -- I have said that in my statement -- and
8 you had his chief inspector and you had Detective
9 Superintendent Harvey from the chief constable's office.
10 My assumption was that any matter which needed to be
11 investigated would be properly investigated.
12 Q. I understand that, but I am dealing with the possible
13 amalgamation or joining of the Atkinson tip-off with the
14 murder investigation.
15 For example, was there ever any discussion in your
16 office by you as to the position you were in, or by
17 Mr Junkin or anybody else, as to why the Atkinson
18 allegation about the tipping-off had not formed part of
19 the murder investigation? Was there ever any discussion
20 or wonderment? Was there ever anything like that?
21 A. No.
22 Q. Now, we know again from this note that on 13th May you
23 were simply told -- I think the words were "forensic
24 investigations continuing". We can find the -- it is
25 the previous page [31607]. In any event, we will get it
90
1 in a moment.
2 You weren't, as I understand it, specifically told
3 that a spot of blood had been found to make a possible
4 link between Bridgett and Mr Hamill?
5 A. No. Sorry. I can't recall, but I would have put that
6 in the note, I would have said.
7 Q. I think you have told us if you had been specifically
8 told that, you probably would have included that.
9 A. Yes.
10 Q. As I understand it, what you have told us in response to
11 Mr Underwood is that, if you had been told that, that
12 you possibly would have directed the police to
13 re-interview Bridgett?
14 A. I am not sure I said that, actually.
15 Q. Well, I can call up what you said and we will get it in
16 just a moment.
17 Whether you said it or not, it would have been
18 possible for you to say to the police, "Well, look, you
19 can re-interview Bridgett about this". That wouldn't
20 interfere in the separation of powers as between --
21 A. No. In actual fact it didn't occur, but, I mean, it may
22 have been something -- actually, with an officer of the
23 experience of McBurney, and Harvey and P39,
24 I wouldn't have thought it would be necessary to tell
25 them how to investigate anything.
91
1 Q. But whether that's right, it would have been open to you
2 to say, "Look, he should be re-interviewed about that"?
3 What was said was:
4 "Answer: To go back to your question, could I have
5 [required] the police?
6 "Question: Yes.
7 "Answer: That is possible, yes."
8 A. "Requested the police".
9 Q. Yes.
10 A. I thought you said "required".
11 Q. Whether it is requested or directed or whatever the word
12 is, could you have requested --
13 THE CHAIRMAN: I would suggest, though, you would be
14 disappointed if your suggestion was ignored.
15 MR ADAIR: Yes.
16 Could you have suggested --
17 A. Yes.
18 Q. -- requested --
19 A. Yes.
20 Q. -- directed --
21 A. Yes.
22 Q. -- any of those three --
23 A. Yes.
24 Q. -- the police to go back and re-interview Mr Bridgett --
25 A. Yes.
92
1 Q. -- if they had told you?
2 So it follows, does it, as we know, the police had
3 told Mr Junkin, the day before, on 12th May, if we look
4 at page [31613].
5 A. Mr McGill.
6 Q. McGill, was it? Was he the Deputy Director at that
7 time? [31613], please.
8 A. I see that, yes.
9 Q. If you see at the bottom of the page there:
10 "In addition, in relation to one of the six accused,
11 Bridgett's blood has turned up on the jeans of the
12 deceased."
13 A. Yes.
14 Q. It equally would have been open to Mr McGill to request,
15 suggest, advise, or direct the police to re-interview
16 Mr Bridgett?
17 A. If it had occurred to him.
18 Q. Am I right in saying whether you should or shouldn't or
19 whether -- in a sense it is neither here nor there --
20 that's a judgment call at that stage, isn't it, as to
21 whether to re-interview him?
22 A. By police?
23 Q. Yes.?
24 A. Yes, but -- well, if it is -- okay. I'll say it is
25 a judgment call, although --
93
1 Q. If we look at what the position was at that time, we
2 know that Bridgett had been interviewed by the police
3 and had denied being anywhere near where Robert Hamill
4 was lying on the ground?
5 A. Yes.
6 Q. We know at that stage there was evidence from two
7 witnesses to put him as one of the attackers?
8 A. Yes.
9 Q. So we know we had him nailed on a lie.
10 A. That's probably correct, yes.
11 Q. Isn't that right?
12 A. Yes.
13 Q. Now, going back to the prison, putting the spot of blood
14 to him simply opens up the opportunity for Bridgett to
15 say, "Oh, I remember now. I walked past him just when
16 I was on the way home", and give some innocent
17 explanation for it. Isn't that right?
18 A. Yes.
19 Q. So the judgment call is: do you go down and give him the
20 opportunity to evade the lie, in the, what I would
21 suggest to you, unrealistic hope that, by putting it to
22 him, he is suddenly going to say, "Okay. Hands up. It
23 was me"?
24 A. Yes.
25 Q. Isn't that right? That's what it boils down to. That
94
1 was the judgment call, do you agree, the police had to
2 make in relation to re-interviewing Bridgett?
3 A. I think that's the judgment call that they quite
4 properly did make.
5 Q. Do you agree that that judgment call -- I think you said
6 at one stage during the course of your evidence,
7 Mr Kitson, that six months on, whenever you became aware
8 of the nature of the forensic evidence, that your
9 judgment call was this was a lie. Best leaving it the
10 way it is, but the police should have struck while the
11 iron was hot?
12 A. I used that phrase.
13 Q. Do you agree with me that, on reflection, when the
14 police became aware of that information, equally that
15 was a judgment call on the same basis as you made it six
16 months later?
17 A. I wouldn't disagree.
18 Q. Now, the third matter I want to ask you about is this,
19 and there has been some discussion in some general terms
20 that the police should have carried out some further
21 confrontation/identification parades. You probably
22 aren't aware of that?
23 A. No.
24 Q. Was there anything in what you read, either at the time
25 or what you have read since, which led you to either
95
1 direct or advise the police that they should have or
2 should carry out further identification or confrontation
3 situations?
4 A. Well, I am not aware of the criticisms or suggestions
5 that they should have. In the end, it didn't matter,
6 because of the developments through consultation.
7 Q. If we leave aside, "In the end, it didn't matter", was
8 there anything, when you read the file before the
9 withdrawal of the statements -- the file came in in
10 August?
11 A. Yes.
12 Q. When you read the file before the withdrawal of the
13 statements in around October, was there anything that
14 struck you in relation to either identification or
15 confrontation that the police should have done that
16 wasn't done?
17 A. My reading of the file in August was very, very much
18 a preliminary read-through, but I would have to say,
19 having read it in a preliminary fashion, there was
20 nothing that instantly occurred to me.
21 Q. Did anyone -- did Mr Davison or the Director or anybody
22 who reviewed these files from time to time ever raise
23 the issue of the failure of the police to carry out any
24 particular identification or confrontation?
25 A. I certainly didn't and I'm not aware of any of my
96
1 colleagues having raised any.
2 Q. Now the final thing I want to ask you about is because
3 you have mentioned at one stage during the course of
4 an answer that, because you were dealing inter alia with
5 Mr McBurney as a senior investigating officer, you were
6 confident -- am I right in summarising what you are
7 saying is you were confident that everything that needed
8 to be done would be done to pursue the investigation?
9 A. Well, he was the head detective of the region. As
10 I say, I had met with and dealt with him on a number of
11 occasions. As I say, he had Mr Harvey with him, so
12 I knew that the chief constable's Crime Branch officer
13 was involved. Therefore, I had no reason to doubt that
14 anything which needed to be done would be done.
15 Q. Was that your experience of Mr McBurney's investigation
16 of crime whether it involved Catholics, Protestants or
17 whatever?
18 A. Well, I don't know if I can comment on that. All
19 I would like to comment on is just, if it's relevant, my
20 previous experience of him dealing with
21 an investigation.
22 Q. I understand and that was that he had, as I -- the
23 impression I am getting from you is that he investigated
24 any matters in which he was involved thoroughly and with
25 integrity?
97
1 A. My experience was he was a dedicated and thorough
2 investigator.
3 MR ADAIR: Thank you.
4 Questions from MR McGRORY
5 MR McGRORY: Sir, I would have some questions.
6 Mr Kitson, you know I represent the family of
7 Robert Hamill?
8 A. Yes.
9 Q. Can I ask you just a few questions, Mr Kitson, first of
10 all, about the value of a joint indictment in terms of
11 bringing to court a number of people charged with
12 a variety of different aspects of the same crime
13 together?
14 Do you understand where I am coming from in general?
15 A. Well, I think that's a very, very general question. It
16 would depend on the ...
17 Q. I have not asked you a question. I am just letting you
18 know I am going to ask you some questions about this
19 issue.
20 A. Okay.
21 Q. It would not be uncommon, of course, in this
22 jurisdiction, and in cases in which you have been
23 involved, to have a number of accused on an indictment
24 in relation to the one offence --
25 A. Yes.
98
1 Q. -- for a variety of offences arising out of the
2 incident. Isn't that right?
3 A. Well, the natural consequence would be that if you have
4 evidence against a number of people arising out of the
5 same incident, and unless there is a severance
6 application for some reason, you would normally proceed
7 on the one indictment.
8 Q. Yes. Of course, the reason for that in many cases is
9 that the evidence against one accused in relation to
10 part of the case may be of assistance to the prosecution
11 in relation to the case against another accused, as long
12 as it is relevant and part of the same set of facts.
13 Isn't that right?
14 A. Well, again, I am not sure what you are driving at
15 there. I mean, the evidence that the prosecution
16 adduces is both several and joint. The evidence has to
17 be against each individual, and what any individual says
18 against another is not necessarily evidence against that
19 other person.
20 Q. I never mentioned what anyone said against another but
21 I will be a little bit more specific.
22 A. Perhaps you -- yes.
23 Q. I will give you an example.
24 You have a murder situation and you have some
25 evidence that someone was involved to some extent in
99
1 a murder, whether it be from an eye witness or other
2 related evidence, little bits of forensic evidence, for
3 example. You also have evidence that there is another
4 person associated with the person you suspect of the
5 murder who assisted the murderer after the fact in, say,
6 disposing of clothes.
7 Now, would you accept that, as a prosecutorial
8 principle, as you are dealing with the one incident and
9 the same set of facts, it would be preferable to try
10 both together?
11 A. If the evidence available was sufficient as against each
12 separate person --
13 Q. Of course.
14 A. -- to pass the test for prosecution and there was
15 a connection between the conduct -- the acts of one and
16 the acts of the other, as a general principle, yes, you
17 would bring both together on an indictment.
18 Q. Indeed, you would expect that the investigation into
19 both those individuals, if you are dealing with the same
20 murder and the same broad set of facts, would be dealt
21 with on the same file?
22 A. As a general principle, yes, but --
23 Q. Yes. Let me just now bring in what happened in this
24 case, because in this case what we had is evidence that
25 Allister Hanvey -- this is coming from Tracey Clarke --
100
1 A. Yes.
2 Q. -- of which you were made aware on 13th May --
3 A. Yes.
4 Q. -- that amongst the evidence that you had was not just
5 the fact that she had witnessed Allister Hanvey attack
6 Robert Hamill and, indeed, jump on his head, but also
7 evidence that Reserve Constable Atkinson had been, in
8 fact, tipping him off as to how to go about destroying
9 his clothes.
10 A. Yes.
11 Q. Now, insofar as Allister Hanvey was concerned, she was
12 giving evidence that he was one of the murderers. Isn't
13 that correct?
14 A. That's right.
15 Q. And insofar as Reserve Constable Atkinson was concerned,
16 she had given evidence to the police that -- albeit it
17 is what Hanvey told her, but that he was someone who was
18 guilty of assisting an offender?
19 A. Guilty, arguably, of doing an act with intent to pervert
20 the course of justice and/or assisting an offender, yes.
21 Q. Yes, indeed.
22 Now, do you accept, in those circumstances, one
23 would have expected Atkinson to have been investigated
24 as someone who was guilty of assisting one of the
25 offenders, ie Hanvey?
101
1 A. Well, I thought he was investigated.
2 Q. Well, my question then would be: would you not have
3 expected he would have been investigated as part of the
4 same investigation file?
5 A. That's a matter of strategy for police. As a general
6 principle, I could see, yes.
7 Q. But as a prosecutor -- as a prosecutor -- could you see
8 the value that if Tracey Clarke was going to give
9 evidence that Hanvey did A, B or C against
10 Robert Hamill, that if more evidence could be uncovered
11 as to what she had said about Atkinson's assistance to
12 him, that would help the case against Hanvey?
13 A. Well, that's very speculative. In the end, of course,
14 what happened was that the police did investigate both
15 sets of allegations, albeit in a separate file.
16 Q. Now let me come to that, because that's indeed what they
17 did do.
18 A. Yes.
19 Q. But you were made aware of the information about
20 Atkinson as early as May 13th?
21 A. Yes. As I say, I can't know whether Mr McBurney stated
22 it or whether I picked it up from reading the statement.
23 Q. Just how common was it, Mr Kitson, for a senior
24 investigator to come and have a consultation with
25 a Senior Assistant Director -- an Assistant Director at
102
1 that stage, as you were, about a murder file so early
2 into the investigation?
3 A. Well, it wouldn't have been a common occurrence, but, in
4 fact -- I can't speak for Mr McBurney, but I am only
5 supposing, because he came down to see the
6 Deputy Director the previous day, that what he was doing
7 was alerting the DPP to the fact that this was a case
8 which had attracted, quite properly, a certain degree of
9 public and media interest. It was a case that, in fact,
10 presumably he wanted the DPP to know about.
11 Q. Then, indeed, he, the very next day, came to see you and
12 he gave you more information about the case. Isn't that
13 right?
14 A. But, as I said, I think I have answered Mr Adair that
15 I saw that meeting relating -- or the focus of the
16 meeting was relating specifically to operational bail
17 matters.
18 Q. Would it not have been the purpose of the meeting to
19 involve the DPP in the broad strategy to bring these
20 people to justice at an early stage?
21 A. No. As I said to you before, I didn't see that as
22 a strategy meeting. To my mind, the focus of that
23 meeting was on the bail issues and about the anonymity
24 of Witnesses A and B.
25 Q. Would you not have been alerted then to the fact that we
103
1 had a policeman against whom there was some evidence
2 that he assisted an offender at this very early stage?
3 A. Sir, as I said, I was aware, because it was in the
4 statement of Tracey Clarke.
5 Q. Would you not have expected some, as the file
6 progressed, and as it came back to you, conclusion in
7 relation to that particular part of the investigation?
8 A. Well, again, as I have said to Mr Underwood, there
9 was -- when the file came in, there was reference to
10 classified papers. In my preliminary look at the file,
11 I noticed that the classified papers had not been
12 appended.
13 When I got the classified papers, there was
14 a specific reference to the allegation which I took to
15 be the allegation against Atkinson that that was subject
16 to a separate file and that it was coming in.
17 Q. Well, would it not have occurred to you at that point,
18 "Well, I really ought to have that separate file now so
19 that I know, as someone who is supervising this or
20 associated with this from a prosecutorial point of view,
21 what the state of the evidence is against Atkinson at
22 an early stage"?
23 A. But, as I have already explained, I had a preliminary
24 look at that murder file. It was clear to me that you
25 couldn't come to any informed decisions on the case
104
1 without the pathologist, for example, the PM report, and
2 the forensic. I was also aware that the file in
3 relation to the Atkinson allegation was coming in.
4 Q. Yes, but insofar as the Atkinson information, here I am
5 suggesting to you is a very serious situation which must
6 have been rare in your career, that you have someone who
7 is suspected of committing a murder, and also, the same
8 key witness is telling you that one of the police
9 officers involved in the case is in cahoots with him as
10 an assistant -- in terms of advising him what to do.
11 A. Yes. I am not sure what you are getting at, because
12 I was quite satisfied -- if I can go back to the initial
13 meeting on 13th May, you had the position that the
14 matters -- we understood it, and we understood
15 correctly, except we didn't understand it was going to
16 be subject to a separate file, but we knew that the
17 matters were being investigated.
18 When I got the file in on the murder, I saw that the
19 subsidiary or the other file was about to come in. So
20 I am not sure what the point is.
21 Q. The point is that it didn't come in to you.
22 A. It came in in February.
23 Q. Yes, February 1998. Isn't that correct?
24 A. Yes.
25 Q. But you directed on the Hobson murder in January. Isn't
105
1 that correct?
2 A. Well, the decision actually, in principle, that Hobson
3 was to be prosecuted for murder was before that.
4 Q. Even before then, in October, we had the situation where
5 Tracey Clarke had come to the consultation and had said
6 she was not going to give evidence, but let me suggest
7 to you that, even at the October point, one would at
8 least have expected a query from you to the police,
9 "What's happening to the reservist? What do we have
10 there?"
11 A. Well, in relation to Tracey Clarke -- sorry. As
12 I explained, the developments in relation to
13 Tracey Clarke and the other witnesses came as a result
14 of a coincidental discussion, talk, conversation between
15 Irwin and Roger Davison. That meant that we had to look
16 at the case a lot more quickly perhaps than we would
17 have anticipated or wished, which meant that we then had
18 to take the decisions in relation to the murder people.
19 So I am not sure what your point is.
20 Q. Sorry, I thought the decision had to be taken in
21 relation to the murder people, because in the middle of
22 October 1997, Tracey Clarke attended a consultation at
23 which she declared her intention not to give evidence.
24 A. That's right, yes.
25 Q. Therefore, the issue of whether or not Hanvey and others
106
1 could be -- the murder case could be maintained against
2 them had to be revisited.
3 A. Well, it had to be visited, because it hadn't been
4 visited at all before that.
5 Q. It had to be visited then. But at the point of visiting
6 it in October 1997 --
7 A. Yes.
8 Q. -- would that not have been a point to say, "Well, where
9 are we with the investigation into Reserve Constable
10 Atkinson at this point? Has it thrown up anything? We
11 have to decide whether or not we can continue to
12 prosecute Hanvey. Have we got anything arising out of
13 the allegation that Atkinson tipped him off that could
14 help us in deciding whether or not we had a case against
15 Hanvey?"
16 A. I am not sure what we would have had. The basis of
17 the -- such --
18 Q. You see, this is my point. You don't know what you
19 would have had. So why was a query not made in
20 October 1997?
21 A. Because it wasn't necessary to make a query in respect
22 of the -- because I didn't see any matter which would be
23 likely to come from that. This was a hearsay allegation
24 in the first instance. Tracey Clarke was the generator
25 of that hearsay allegation. Tracey Clarke was no longer
107
1 going to give evidence. Where was the other case going?
2 Q. Well, you see, the point I am making to you is you
3 didn't know because you didn't ask.
4 A. But I am not sure -- where -- what would have come from
5 the other investigation?
6 Q. Well, you see, the problem that we have, of course,
7 Mr Kitson, is, as you know, Reserve Constable Atkinson
8 was interviewed in September and October of 1997.
9 A. Yes.
10 Q. There are issues surrounding the conduct of those
11 interviews.
12 A. Uh-huh.
13 Q. But what I am suggesting to you is that anything could
14 have happened in the context of those interviews in
15 terms of the information that they were able to glean
16 from Reserve Constable Atkinson. He could have
17 confessed. You didn't know that?
18 A. He could have confessed and that would have been
19 submitted as a supplementary or an additional file and
20 the case against Mr Hanvey would have been revisited.
21 THE CHAIRMAN: But once Tracey Clarke and Timothy Jameson
22 had withdrawn --
23 A. Yes.
24 THE CHAIRMAN: -- you had to make an urgent decision, hadn't
25 you, about what to do with the murder --
108
1 A. Yes.
2 THE CHAIRMAN: -- because you had a number of men in
3 custody?
4 A. That's correct, yes.
5 THE CHAIRMAN: How quickly did you want to get that matter
6 dealt with?
7 A. Well, as your Lordship knows, when people are in
8 custody, it is important that, in fact, matters are
9 dealt with properly.
10 THE CHAIRMAN: Yes.
11 MR McGRORY: You see, for example, Mr Kitson, the police had
12 been made aware very quickly after 13th October that
13 there in fact were telephone calls between the Hanvey
14 household and the Atkinson household on the night after
15 the attack, the early morning after the attack on
16 Robert Hamill. Were you made aware of that information?
17 A. That they had telephone --
18 Q. That they had telephone records.
19 A. I think Mr Adair or Mr Underwood asked me that and
20 I wasn't made aware.
21 Q. You see, that's the sort of information you might have
22 been told had there been some investigation from your
23 office with the police as to whether or not -- to what
24 extent progress was being made against Reserve Constable
25 Atkinson.
109
1 A. But I am not sure where that would have put us.
2 Q. In any event, the reality is, Mr Kitson, that because
3 you were told that Reserve Constable Atkinson was being
4 investigated under a different file --
5 A. No, I was told Reserve Constable Atkinson was being
6 investigated, if you are talking about the conference
7 consultation on 13th May. It was when I received the
8 murder file and read the classified papers that
9 I recognised or realised, in fact, it was being
10 investigated as a separate file.
11 Q. Before I leave this subject, I am going to suggest to
12 you it would have been good practice for the prosecutor,
13 which was you, of the murder to have made sure he was
14 kept informed of the progress of the investigation
15 against Reserve Constable Atkinson.
16 A. That's your view, but as far as I was concerned, as the
17 Chair said, we were not forced but we were in a position
18 where we had to make quick, important decisions in
19 relation to people in custody.
20 In the normal course of events, the Atkinson neglect
21 file would have come in and we would have had time to
22 look at them separately, but I had to make the
23 decisions, and if anything else had come in additional
24 to that, those decisions could have been revisited.
25 Q. Well, of course, the separate file that you refer to did
110
1 come to your attention eventually --
2 A. Yes.
3 Q. -- in or about May of 1998. Is that correct?
4 A. The separate file?
5 Q. Yes.
6 A. No, the separate file came into the office in February.
7 Q. Sorry. In February. Now, at that point, Mr Underwood
8 has already shown to you the text of the file, but at
9 that point the police outlined how they had interviewed
10 Atkinson about the phone calls --
11 A. Uh-huh.
12 Q. -- and the explanation that was given in terms of the
13 McKees --
14 A. Uh-huh.
15 Q. -- and how they were sceptical about that?
16 A. Yes.
17 Q. Now, at any time, did Detective Superintendent McBurney
18 indicate to you that they were more than sceptical; in
19 fact, they just plain didn't believe him?
20 A. You mean personally?
21 Q. Atkinson.
22 A. McBurney separately from what he stated in the file
23 speak to me?
24 Q. Exactly. Separately.
25 A. No.
111
1 Q. Because I am going to suggest to you that the impression
2 the file gives is that Atkinson is -- we have the
3 allegation in hearsay form from Tracey Clarke. We don't
4 have her anymore. There were phone calls from the two
5 households.
6 A. Yes.
7 Q. We have asked him about that and he has given us
8 an explanation. "We are sceptical".
9 A. Yes.
10 Q. But, in fact, what the Inquiry has been told -- I don't
11 know if you are aware of this -- was that they were more
12 than sceptical; they plain didn't believe the alibi on
13 the phone call, that is the senior police?
14 A. Well, I am not aware of that, but I could understand
15 perhaps why.
16 Q. Would you not have expected that that disbelief would
17 have been translated into the file in a more robust way
18 than a simple expression of scepticism?
19 A. Well, I am sure Mr McBurney -- I don't know whether you
20 are attributing that to Mr McBurney or whether you are
21 attributing it to any of the other police officers, but
22 I am sure Mr McBurney would have chosen his language
23 properly.
24 Q. Because the reality is that the file doesn't end the
25 matter. He is still a suspect. It doesn't rule him out
112
1 as a suspect, as an accessory to the murder, sure it
2 doesn't, the file that you got in February?
3 A. Well, it doesn't rule him out or in.
4 Q. You see, at this point the murder case against Mr Hobson
5 is still ongoing. Isn't that right? It hasn't come to
6 trial yet, in fact?
7 A. That's right, yes.
8 Q. So I am suggesting to you it has to be a very rare
9 situation where you have a murder case in which one of
10 the prosecution witnesses is also a suspect as
11 an accessory to the same murder you are prosecuting.
12 A. I think it wouldn't be a common situation. I would have
13 to agree with that, yes.
14 Q. And that that fact would alert prosecutors and senior
15 police alike to the fact that there is a difficulty here
16 with this individual, Atkinson, as a prosecution
17 witness?
18 A. No, not necessarily. I have already answered -- spoken
19 or given an answer to Mr Underwood in relation to that.
20 This was a hearsay allegation which was based on the
21 evidence of Tracey Clarke, who was no longer available
22 as a witness.
23 Yes, there were suspicions. You could even put it
24 as far as the police didn't believe it, but that, to my
25 mind, did not necessarily mean that you couldn't call
113
1 the witness to give evidence.
2 Q. But, of course, there were a lot of things that you
3 didn't know about, the reason for the scepticism. Isn't
4 that right?
5 A. Well, perhaps you can enlighten me.
6 Q. I am going to enlighten you now.
7 For example, you did not know that Andrea McKee, for
8 example, was the person who actually introduced
9 Tracey Clarke to the police when she told them about the
10 allegation of Reserve Constable Atkinson. You did not
11 know that, sure you did not?
12 A. That's correct. That's my -- yes.
13 Q. Because that was not in the file that you eventually
14 got. Sure it wasn't?
15 A. That wasn't in the file that I got and it wasn't made --
16 well, I have said in my statement that my
17 handwritten minute of 13th May does not refer to the
18 name Andrea McKee and, therefore, I'm taking that as
19 an indication that it wasn't mentioned to me, nor would
20 I have any reason to suspect the relevance of it at that
21 time.
22 Q. Indeed, when Inspector Irwin took the alibi statement
23 from Andrea McKee, he was deeply worried about doing
24 that, knowing that he had spoken to her before
25 Tracey Clarke came in about what Tracey Clarke was going
114
1 to say?
2 A. I am not sure how I know it, but, yes, I understand that
3 to be the position.
4 Q. Indeed, insofar as Inspector Irwin and Chief
5 Superintendent McBurney were concerned, they did not
6 believe Andrea McKee when she gave that alibi statement?
7 A. Well, they couldn't have if, in fact, Andrea McKee was
8 the one who had taken Tracey Clarke, yes.
9 Q. Would you not have expected in a file submitted to the
10 office of the Director of Public Prosecutions that if
11 the investigators simply didn't believe a witness, that
12 they would have made that clear to the office of the DPP
13 in the file?
14 A. Probably.
15 Q. Now can I move on, Mr Kitson, to the issue of the
16 disclosure of the statement of Tracey Clarke to the
17 defence in the case of Marc Hobson --
18 A. Yes.
19 Q. -- and, indeed, to the defence, I suppose, in the case
20 of Hanvey and others insofar as that was still going?
21 If I may take you to some of the correspondence.
22 The first letter you received about this matter at all
23 was on 28th May 1997. It is at [19050]?
24 A. Are you saying I received or the office received?
25 Q. No, you received. [19050].
115
1 A. Yes. Got it.
2 Q. That is addressed directly to you.
3 A. Yes.
4 Q. It is dated 28th May 1997. It is from Richard Monteith.
5 Now, Mr Monteith was nothing if not diligent and
6 industrious on behalf of his clients. I think you would
7 agree, would you not? This letter is very quick off the
8 mark. It is within days or within a few weeks of the
9 arrest and charging with murder of Hanvey and others.
10 Isn't that correct?
11 A. That's correct, yes.
12 Q. Now it is addressed directly to you, and in the third
13 paragraph of it, at the bottom of the page, Mr Monteith
14 says:
15 "It appears from the interviews carried out by the
16 police with each of my four clients that the only
17 evidence against them appears to come from one or at
18 most two witnesses who claim to recognise each of them."
19 Do you see that?
20 A. Sure, yes.
21 Q. So he is alerting you pretty much immediately after the
22 murder prosecution begins that he is aware that there
23 are one or two witnesses are the principal prosecution
24 witnesses in this murder case?
25 A. I think that's a fair assumption, yes.
116
1 Q. Okay. Now, there is quite a body of correspondence.
2 I am not going to take you to absolutely every letter,
3 but the next one that is of significance, I would
4 suggest, is on 24th October 1997. It is [18055].
5 That, again, is addressed directly to you,
6 Mr Kitson. It is dated 24th October. Do you see that?
7 A. It is addressed directly to me, because I know that
8 Mr Monteith knew I was Assistant Director in charge of
9 the area, yes.
10 Q. Can one presume that here we have a case that the police
11 have seen fit to go to the Deputy Director. Then they
12 have a meeting with you on 12th May. They have
13 a meeting with you on 13th May. This is a high profile
14 case in the office of the Director?
15 A. It was an important case. It was the death of a man,
16 yes.
17 Q. In fact, the Director, as we have already seen, had
18 asked to you keep him personally informed?
19 A. Yes.
20 Q. So it is one you are going to keep an eye on. Isn't
21 that correct?
22 A. Yes.
23 Q. So we can presume that these letters addressed to you
24 reach you?
25 A. Well, I am sure they did, yes.
117
1 Q. The final paragraph of that letter just at page [18056],
2 over the page, Mr Monteith, in the last four or five
3 lines, says:
4 "Clearly the question as to whether or not one, two
5 or more witnesses are giving evidence is a matter that
6 would have to be opened in the High Court bail
7 application."
8 Again, he is drawing your attention to the fact that
9 he knows there are key witnesses in this case who may or
10 may not -- who may be giving evidence.
11 A. Yes, I can see that, yes.
12 Q. Key eye-witnesses?
13 A. Uh-huh.
14 Q. Now, Mr Monteith writes again on 25th February 1998 at
15 [28230].
16 A. Uh-huh.
17 Q. It is dated 25th February. At the beginning of the --
18 I suppose it is the second big paragraph:
19 "During the stages before my client received his PE
20 papers there was extensive discussion between myself and
21 the Assistant Director Mr Kitson."
22 Do you see that?
23 A. Yes.
24 Q. So Mr Monteith has had discussions with you prior to the
25 production of the committal papers about the case
118
1 generally?
2 A. Well, in fact, he says -- I can't remember any
3 discussions, I have to say, with him, but it is
4 possible, because, as I say, he knew I was the assistant
5 Director for the region or for the circuits. I knew
6 him. We had had many dealings. Whether that was
7 a formal discussion or whether he happened to mention it
8 to me in passing, I just don't know.
9 Q. So at this stage in February 1998, we can tell from this
10 correspondence two things. Firstly, we can tell that
11 the committal is imminent and that papers and an initial
12 box of disclosure have been served on Richard Monteith?
13 A. Yes, I can take that, yes.
14 Q. And that insofar as Mr Monteith is concerned, he and you
15 have been discussing the conduct of the case?
16 A. Well, I'm not sure "conduct of the case" is not too
17 general. I mean --
18 Q. He has written to you three or four times here about the
19 issue of disclosure, directly to you, and he has had
20 discussions with you about it. Isn't that right?
21 A. Well, as I say, the correspondence doesn't strike me as
22 anything particularly unusual. I mean, it was the type
23 of diligent correspondence that Mr Monteith would have
24 embarked upon in any event.
25 As for the discussions, I am not sure I could agree
119
1 there were either extensive discussions or what the
2 nature of those discussions were other than in just
3 a general, "What's happening in the case? Are you ready
4 to commit? Are there issues here about tape recording?"
5 Q. You are certainly very much involved in the progress of
6 the case on behalf of the Director's office. Isn't that
7 right?
8 A. Well, I would say that my involvement lessened after
9 I had taken the principle -- the decisions in the Hobson
10 case, because, at that stage, you will recall I passed
11 it back to Roger Davison to prepare the committal papers
12 and take it forward.
13 I mean, normally as the circuit Assistant Director
14 I wouldn't have had a hands-on involvement in the case
15 as much as I did, but there was a particular reason for
16 that and that was because events unfolded. Mr Davison
17 went on leave.
18 Q. Then it came back to you, did it?
19 A. I gave it back to Mr Davison.
20 Q. Sorry, when did he go on leave?
21 A. I think Mr Davison went on leave when -- if I recall
22 the minute, it was on 24th October, because on the
23 Monday, 27th October, I telephoned Mr Kerr about the
24 witness Tracey Clarke. So Mr Davison was on leave at
25 that period.
120
1 Q. When did he come back?
2 A. I think he would have come back early November.
3 Q. But you, Mr Kitson, are the directing officer. Isn't
4 that right?
5 A. I was the decision-maker in relation to the murder file.
6 Q. So whatever matters Mr Davison was involved with in
7 terms of getting together the papers and so forth --
8 A. Yes.
9 Q. -- he would have had to have done so on your direction?
10 A. The specific direction was, "There they are. The
11 decision is prosecution of Hobson for murder. Prepare
12 the committal papers and get the person sent to
13 Crown Court for trial".
14 Q. Are you saying that's all you do? You say, "We are
15 going to prosecute Hobson for murder", but you do not
16 involve yourselves precisely in decisions as to which
17 witnesses are relevant and which are not?
18 A. As a general proposition, or this particular case?
19 Q. Let's talk about generally, first of all?
20 A. As I say, generally the circuit Assistant Director would
21 not have a hands-on involvement in the case. The
22 circuit Assistant Director has a supervisory role. He
23 would want to be kept informed and, yes, on many
24 occasions, the way the Director asked to be -- the case
25 to be referred to him, but the actual day-to-day
121
1 preparation of the committal papers, decision of
2 witnesses, would be for the case officer.
3 Q. Without any advice or direction from his immediate
4 superior?
5 A. No, no, no. Sorry. He could come and seek advice if he
6 thought it necessary.
7 Q. Did he, in this case, as they approached the committal,
8 seek advice from you as to which witnesses he should
9 choose to put in the papers in furtherance of the Crown
10 case?
11 A. I don't recall him coming to me and I don't believe
12 I did give him any advice.
13 Q. So the decision to call Reserve Constable Atkinson and
14 Constable Neill in the case against Hobson was taken by
15 Roger Davison alone. Is that what you are telling us?
16 A. I think that's correct, yes.
17 Q. Right.
18 A. Having said that, you say "the decision to use
19 Constable Neill". I mean, without Constable Neill there
20 would have been no case against Hobson. So what was
21 the -- what was he to do?
22 Q. Well, were you aware -- was there some discussion with
23 you then between you and Mr Davison as to whether or not
24 you could do it without Neill?
25 A. Well, no, I have already explained that I was quite
122
1 satisfied that the test for prosecution was met in
2 respect of --
3 THE CHAIRMAN: So you had read the file and seen what the
4 evidence was?
5 A. Absolutely, Chair, yes.
6 MR McGRORY: What I am trying to get to the bottom of is
7 this: this is a murder case --
8 A. Yes.
9 Q. -- so the witnesses have to be chosen very carefully in
10 this, as in any other case, in order that they give
11 relevant evidence in respect of the murder. Isn't that
12 right?
13 A. That's correct, and the relevant evidence in respect of
14 Hobson's prosecution was Constable Neill, and, as I have
15 already explained, there was also supporting evidence as
16 to the nature of the assault on Hamill coming from
17 Constable Atkinson.
18 Q. Yes, but what I am suggesting to you is that Mr Davison
19 might have consulted you about whether or not
20 Constable Neill's evidence required bolstering by
21 Reserve Constable Atkinson.
22 A. Well, that's your word, "bolstering". I am sure --
23 Q. Support. Let's use that less emotive word.
24 A. I think that's a better word. I think Mr Davison would
25 have looked at the papers and seen how best -- how to
123
1 present the case at its height.
2 Q. You see, in deciding to use Reserve Constable Atkinson,
3 a decision is taken to use, as a prosecution witness,
4 someone in respect of whom there is an investigation of
5 a criminal offence.
6 A. Mr McGrory, that's not necessarily unusual. You know.
7 You have had a lot of experience in the criminal courts,
8 and that would have happened potentially in the past --
9 not potentially, it would have happened before.
10 Q. That a prosecution witness is also a suspect in the same
11 murder, albeit as an accessory after the fact?
12 A. Well, you say "suspect", and what you had at that stage
13 was hearsay allegation, as I have already said, based
14 upon Tracey Clarke's evidence, and Tracey Clarke was no
15 longer going to be available to give evidence.
16 Q. Yes, but what I am trying to ascertain, Mr Kitson, is
17 whether or not that was considered. Did someone in the
18 office of the DPP sit down and say, "Should we use
19 Reserve Constable Atkinson in this case against Hobson?"
20 A. Well, Roger Davison, as I have said, prepared the
21 committal papers. That is a question which you are
22 going to have to ask him.
23 THE CHAIRMAN: Did he consult you about that decision?
24 A. No, he did not consult me about that decision.
25 MR McGRORY: Okay.
124
1 THE CHAIRMAN: Can you move on?
2 MR McGRORY: On 18th March, there is a further letter from
3 Richard Monteith on page [28226]. Do you see that?
4 A. Yes.
5 Q. In this letter the committal hearing is imminent. It is
6 listed for 20th April. At the bottom of the page notice
7 given of those witnesses from whom oral evidence will be
8 sought by the defence during the course of the
9 committal.
10 A. Yes, I see that.
11 Q. At 3 is C -- actually, my copy is redacted but it is
12 actually Reserve Constable Atkinson.
13 A. My copy is not redacted. I can see that, yes.
14 Q. So at this point on 18th March, Mr Monteith is giving
15 notice he wishes to question Reserve Constable Atkinson
16 in the conduct of the committal proceedings. Do you see
17 that?
18 A. Yes, that would follow from the letter, yes.
19 THE CHAIRMAN: Does your reference 2209/97CL tell you to
20 whom that letter would have gone? Do you see it under
21 "Your reference"?
22 A. My reference?
23 THE CHAIRMAN: It just says, "Your reference: 2209/97CL".
24 Does that tell you who would have received that letter
25 in the office?
125
1 A. No, it doesn't.
2 THE CHAIRMAN: Did you see that letter yourself?
3 A. That's one of the few letters I have seen which appears
4 not to have been addressed personally to me. I think
5 Mr Monteith would perhaps have anticipated or realised
6 that I was not having carriage specifically of the case.
7 So I'm not sure -- sorry. Can I say I saw that?
8 I don't think so.
9 THE CHAIRMAN: Thank you.
10 MR McGRORY: The next letter of relevance is at [18148]. It
11 is dated 31st March. This is from Roger Davison himself
12 to Richard Monteith and it appears to be a reply to the
13 letter of 18th March which you have just seen.
14 A. Yes.
15 Q. Now, what he tells Mr Monteith in that letter is, in the
16 bottom paragraph:
17 "I am presently preparing disclosure arising out of
18 the Complaints and Discipline file. This should follow
19 within a few days of the receipt of this letter."
20 A. Yes.
21 Q. Can we take it from that that in the event of a police
22 witness being called to give evidence at a committal
23 hearing, the issue of relevant disclosure concerning
24 that police witness would have to be considered?
25 A. It would have to be considered, yes.
126
1 Q. Indeed, it seems to have been, to the extent at least
2 that Roger Davison has told Mr Monteith in this letter
3 that he was preparing disclosure arising out of the
4 Complaints and Discipline file --
5 A. I see that, yes.
6 Q. -- and that it would follow within days?
7 A. Yes.
8 Q. Now, can you help us, please, Mr Kitson, with the
9 mechanics of the making of that disclosure? Obviously
10 within a few days then a letter would have been
11 dispatched to Mr Monteith, would it, with the disclosure
12 which the DPP felt ought to be made?
13 A. At that stage, yes.
14 Q. Now, at that point, do you recall if Mr Davison had any
15 consultation with you, as his line manager and immediate
16 superior in this case, as to the extent of the
17 disclosure he should make about Reserve Constable
18 Atkinson?
19 A. No. Mr Davison was an experienced senior legal
20 assistant at that stage, and unless he had some
21 particular queries I might not have expected him to come
22 and seek my direction or assistance or guidance.
23 Q. You see, the problem is no trace can be found anywhere
24 by this Inquiry of any letter to Mr Monteith indicating
25 just what he was being given.
127
1 Can you help us with that at all?
2 A. In terms of what?
3 Q. You were just saying to us in terms of -- you have told
4 us there ought to be such a letter in existence. Isn't
5 that right?
6 A. Well, I am assuming that following upon Mr Davison's
7 letter of 31st March, he would -- he was preparing
8 disclosure, which should follow within a few days of
9 receipt of this letter, that his intention was --
10 whether it was actually carried through, and, if it
11 wasn't, for what reason I don't know -- but the natural
12 assumption I would make is that disclosure would have
13 followed.
14 Q. Okay. Fair enough. That's as much as you can help us
15 with.
16 Moving on from that, that is, I am going to suggest
17 to you, the first disclosure decision that has to be
18 taken in respect of the extent of the allegation against
19 Reserve Constable Atkinson in the context of the murder
20 case. There was another, of course, decision that had
21 to be taken later. This one triggered by the committal
22 hearing on 20th April. Do you accept that? This was
23 the first disclosure decision.
24 A. The first time consideration would have had to have been
25 given to disclosure of any nature --
128
1 Q. Yes, and it would suggest from that letter that
2 Mr Davison wrote on 31st March that the only thing he
3 was considering disclosing was, indeed, the Complaints
4 and Discipline interview.
5 A. Well, could you put that letter back again, please?
6 Q. Yes, the Complaints and Discipline file.
7 THE CHAIRMAN: Arising out of the file?
8 A. Well, the Complaints and Discipline file, as
9 I understand it, incorporated both the allegations of
10 failure to act at the scene and also the Atkinson
11 allegation.
12 Q. There is certainly no evidence at that point that there
13 was any consideration given to disclosing what
14 Tracey Clarke said about Reserve Constable Atkinson.
15 A. Well, that's such a general letter. I don't know what
16 was in his mind as to what he thought was going to be
17 relevant disclosure.
18 THE CHAIRMAN: How far are we progressed by asking questions
19 about a letter which the witness didn't see? You will
20 be having your opportunity to question Mr Davison.
21 MR McGRORY: Indeed. I intend moving on from this to the
22 next disclosure decision which would be in the context
23 of the actual trial.
24 A. Uh-huh.
25 Q. There is a letter of 15th September 1998 at [31536].
129
1 A. Yes.
2 Q. Now, the first paragraph of that letter discloses --
3 again, I think this is from Mr Monteith. His reference
4 is at the top of the page, RMJC?
5 A. Yes.
6 Q. In the second paragraph he says:
7 "However, I have yet to receive the witness
8 statements referred to in paragraph 2 of my letter of
9 12th August ..."
10 Do you see that?
11 A. Yes.
12 Q. Now, can you tell us whether or not you are getting this
13 correspondence or is it going to Mr Davison or somebody
14 else?
15 A. At the Crown Courts matters would be dealt with by the
16 disclosure -- DPP disclosure section at the Crown Court.
17 That wouldn't come to me.
18 Q. That, indeed, was headed up by Mr Burnside. Is that
19 right?
20 A. Mr Burnside was responsible for that at that stage, yes.
21 Q. To what extent, I want to ask you, Mr Kitson, is there
22 liaison between the directing officer in a case and the
23 disclosure officer? I am suggesting to you that one
24 would expect that there would be fairly close
25 consultation?
130
1 A. I think it would depend on the case and the issues
2 identified by the disclosure section at the Crown Court,
3 but, yes, there would -- if there needed to be
4 consultation, there would; consultation, liaison,
5 discussion, call it what you wish.
6 Q. Now, if I could look, please, at a letter [31526]. It
7 is dated 9th October.
8 A. I see that, yes.
9 Q. In the fourth paragraph of this:
10 "In respect of your requirement for documents
11 concerning the initial reasons for the arrest of your
12 client, I can confirm that two persons called
13 Witnesses A and B made statements", and so forth.
14 A. Uh-huh, yes.
15 Q. Now further on down that paragraph:
16 "The Crown consider that therefore the relevant
17 passages of the statements have been disclosed to you.
18 The Crown considers that the remaining portions of these
19 statements are not relevant to an issue at the
20 forthcoming trial and that therefore no duty of
21 disclosure attaches thereto."
22 A. Uh-huh.
23 Q. Now, this is signed by somebody for the Assistant
24 Director. When they say "for Assistant Director", is
25 that you?
131
1 A. Yes.
2 Q. But it's written by -- is that written by Mr Burnside?
3 A. I suspect that's Mr Burnside, yes.
4 Q. So here we have Mr Burnside informing Mr Monteith, who
5 has been a bit like a dog with a bone, I would suggest,
6 in terms of these statements of A and B, and Mr Burnside
7 is saying, "Well, we have considered this. The Crown
8 considers that the relevant passages have been disclosed
9 and the remaining portions are not relevant".
10 Now, can we take it that since there was liaison
11 between Mr Burnside and you, he would have discussed
12 this decision with you?
13 A. Well, I didn't say there was liaison between Mr Burnside
14 and myself in relation to this particular case.
15 Q. Well, was there?
16 A. No.
17 Q. No. But what you did say was that one would have
18 expected the disclosure officer to be in regular
19 consultation with a directing officer about what should
20 and should not be disclosed?
21 A. I didn't actually say that. I said if the disclosure
22 officer thought or considered that there were issues
23 which he needed to go back to the ...
24 Q. Like Mr Davison, are you suggesting that Mr Burnside
25 took this decision entirely on his own?
132
1 A. He very well may have discussed the issue with
2 prosecuting counsel.
3 Q. We will come to that in a moment. The correspondence
4 goes on. I am not going to labour the point by going
5 into it in great detail. Mr Monteith does not give up
6 on this, Mr Kitson, in terms of getting access to the
7 statements of Witness A and B in the run-up to the
8 Hobson murder trial. He continues to press the point.
9 Are you aware of that?
10 A. You tell me. I accept that, yes. I am aware there was
11 a series of correspondence between Mr Monteith and the
12 office, yes.
13 Q. So you had no hand, act or part in the decision-making
14 process as to what Mr Monteith should or shouldn't be
15 given in terms what Tracey Clarke had said. Is that
16 what you are saying?
17 A. Well, I am not sure why you are putting it in that
18 manner. I have already said that the disclosure at that
19 stage was left to the staff at the Belfast Crown Court.
20 If any issues would have arisen on which they needed my
21 direction, advice, I would have expected them to come to
22 me, but, having said that, as I say, we had prosecuting
23 counsel, Crown counsel, senior counsel in the case, and
24 I have no doubt that throughout the period of the
25 correspondence exchange Mr Burnside was discussing
133
1 matters with Crown counsel.
2 Q. Well, indeed, that appears to be the case. If you could
3 look at [31479], please, this is another letter from
4 Richard Monteith to the office of the Department of
5 Director of Public Prosecutions --
6 A. Yes.
7 Q. -- in which he refers again to this issue:
8 "Once again", he says in the third paragraph, "I ask
9 for disclosure of the two outstanding witness statements
10 which the Crown have failed to disclose to the defence.
11 Senior Crown counsel Mr Gordon Kerr QC advised [a Lord
12 Justice] on 13th November 1998 that he undertook to
13 disclose the said witness statements. Junior Crown
14 counsel Mr [blank] also made it clear that the said
15 statements would be disclosed when the case was
16 mentioned on 16th December 1998."
17 Now, at this stage there is clearly a live issue
18 within the prosecution as to whether or not these
19 statements should be disclosed and what portion of them.
20 A. I can accept that, yes.
21 Q. Were you involved at this stage?
22 A. No.
23 Q. Okay. Then finally, on 29th December -- not finally --
24 on 29th December at page [31470] --
25 THE CHAIRMAN: Wouldn't it be perhaps quicker if you asked
134
1 the witness whether at any stage he was involved in
2 disclosure? If he says he was, then you can ask him
3 about it.
4 MR McGRORY: Well, when disclosure was finally made on
5 4th January 1999, were you involved in that decision?
6 A. No.
7 Q. Could I have the statement of Tracey Clarke, please, at
8 [31471] on the screen? At [31473], the passage:
9 "I remember [blank] ..."
10 If that could be highlighted, please. Now, this is
11 the redacted statement that Mr Monteith's office finally
12 received on the eve of the Hobson trial in January 1999.
13 It is heavily redacted. Had you any hand, act or part
14 in those redactions?
15 A. I had no dealings with disclosure issues.
16 Q. Whatsoever?
17 A. Whatsoever.
18 Q. Do you accept, if I read this passage out to you:
19 "I remember [blank's] name coming up and [blank]
20 said that [blank] had been very good to him, because on
21 the Sunday morning after the incident in the town
22 centre, he rang him at about 8.00 am and told him to get
23 rid of the clothes he was wearing the previous night.
24 Since then [blank] has contacted me on numerous
25 occasions and he keeps asking me what I have said to the
135
1 police. He also told me that [blank] was ringing him
2 every day to keep him up to date with the police
3 investigations."
4 Do you see that?
5 A. Yes.
6 Q. Do you accept at least, even though you didn't make
7 these redactions, Mr Kitson, that that tells the defence
8 absolutely nothing about Reserve Constable Atkinson?
9 A. On the face of it, it doesn't, but I would have thought
10 anybody reading that could pretty well surmise that it's
11 a police officer.
12 Q. Well, maybe, I suggest to you, but in any event you had
13 nothing to do with this decision, had you?
14 A. That's correct.
15 MR McGRORY: All right.
16 THE CHAIRMAN: Yes.
17 MS DINSMORE: I have no questions.
18 Questions from MR EMMERSON
19 MR EMMERSON: Just one or two matters very briefly, if
20 I may, please. Just a couple of short matters of
21 detail, Mr Kitson.
22 You were shown the manuscript note of the meeting of
23 13th May and you gave certain evidence about the main
24 purposes of the meeting as you understood them to be.
25 You said you had then prepared a typewritten note
136
1 or minute of the meeting.
2 A. Yes, correct, yes.
3 Q. Can we just call that up, please? It is at [19069].
4 Perhaps if we could look at that page together with
5 page [19070].
6 A. Right. Okay.
7 Q. That's the full terms of the typescript version of
8 the minute. Would you, in preparing a typed minute from
9 your manuscript notes, have been seeking to encapsulate
10 in a more structured way what the principal function of
11 the meeting was?
12 A. Yes. Yes, absolutely, yes.
13 Q. Looking at that minute, does that assist you at all just
14 to recall what the focal point of the meeting, as you
15 understood it, was?
16 A. I think I made that -- I gave that response to Mr Adair,
17 I suspect, when he was asking about it. To my mind,
18 this indicates what I thought was the focus of that
19 meeting, and it was the medical evidence and that
20 potential impact on the issue of bail.
21 Q. You were asked some questions as well about a passage
22 attached to the back of the manuscript notes --
23 A. Uh-huh.
24 Q. -- which Mr Underwood suggested to you on its face
25 appeared to be a continuation of your manuscript note of
137
1 the meeting, but which you have referred to in your
2 witness statement as having been a separate conversation
3 with Mr McBurney about a conference or consultation he
4 had had with Professor Crane. Do you recall that?
5 A. Yes, I do, and I am quite sure -- I think in the
6 photocopying it has been added on, but my recall is that
7 it was the separate handwritten note of Mr McBurney
8 coming back to me, having spoken to Professor Crane
9 about the issue of cause of death.
10 Q. Thank you. If we could just bring up, please, [31611]
11 on the left-hand side of the screen. That's the
12 manuscript note you were referring to?
13 A. Yes. I mean, it would be logical that that was
14 an add-on minute, because it has:
15 "Seen McBurney and Michael Irwin. Standing by his
16 initial findings. That is to say - cause of death is
17 the head injury but that in itself would or should not
18 have caused death."
19 Q. Can we just call up on the right-hand side of the screen
20 [19068]? That is a typed minute which on its face seems
21 to follow very substantially the text of the manuscript
22 note. Would you agree?
23 A. That's it, yes.
24 Q. That seems to be a further note of the conversation
25 between yourself and Mr McBurney and Mr Irwin on
138
1 15th May. Do you agree?
2 A. Yes.
3 Q. Again, does that assist you in determining whether your
4 previous understanding was correct?
5 A. That confirms to me that the handwritten minute is
6 a separate minute of another meeting or call or
7 discussion with McBurney and Irwin.
8 MR EMMERSON: Yes. Thank you. Thank you, sir. Those are
9 the only questions I wanted to ask.
10 MR UNDERWOOD: Nothing arising. Thank you very much.
11 THE CHAIRMAN: Thank you.
12 (The witness withdrew)
13 THE CHAIRMAN: What time ought we to sit tomorrow morning,
14 Mr Underwood?
15 MR UNDERWOOD: I apprehend 10 o'clock would suffice.
16 THE CHAIRMAN: 10 o'clock.
17 (5.05 pm )
18 (The hearing adjourned until 10.00 am tomorrow morning)
19 --ooOoo--
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1 I N D E X
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3
MR WILLIAM JOHN LYTTLE MUNN (sworn) .............. 1
4 Questions from MR UNDERWOOD ............... 1
Questions from MR ADAIR ................... 9
5 Questions from MR DALY .................... 11
6 MR ROBERT DAVID COOKE (sworn) .................... 11
Questions from MR UNDERWOOD ............... 11
7 Questions from MR McGRORY ................. 18
Questions from MR MALLON .................. 22
8 Questions from MR EMMERSON ................ 23
9 (Statement of WITNESS J read) .................... 26
10 MR RAYMOND ANDREW KITSON (sworn) ................. 29
Questions from MR UNDERWOOD ............... 29
11 Questions from MR ADAIR ................... 85
Questions from MR McGRORY ................. 98
12 Questions from MR EMMERSON ............... 136
13
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