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Hearing: 16th September 2009, day 64
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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 Wednesday, 16th September 2009
commencing at 10.00 am
Day 64
1 Wednesday, 16th September 2009
2 (10.00 am)
3 MR UNDERWOOD: Sir, the first two witnesses we have today
4 are recalled, they having been called first to deal with
5 the discrete issue about their view of Tracey Clarke.
6 So I will call Mr Davison first, please. I don't know
7 whether you want him re-sworn.
8 THE CHAIRMAN: No, there is no need. My computer is again
9 playing up. So I may from time to time ask you for
10 a page reference on LiveNote so that I can look at it
11 later.
12 MR UNDERWOOD: Of course.
13 THE CHAIRMAN: We are Day 57, I think, aren't we?
14 SIR JOHN EVANS: Day 64.
15 THE CHAIRMAN: Day 64. Thank you. That suggests I have
16 been asleep for seven days.
17 MR ROGER DAVISON (recalled)
18 Questions from MR UNDERWOOD
19 MR UNDERWOOD: Good morning, Mr Davison.
20 A. Morning.
21 Q. Thank you for coming back. You are still on oath. We
22 have already identified your witness statement at
23 page [81398], but perhaps we can have it back up on
24 screen. I want to ask you a few more general questions
25 about your statement now.
1
1 If we look at the second page, [81399], at
2 paragraph 8 you deal with the position of the DPP once
3 a file has been delivered to it by the RUC in 1997. You
4 say:
5 "If, on consideration of the file, the caseworker
6 believed that other information was necessary, he would
7 ask the police to make further enquiries or obtain
8 further evidence. Such a request would be made by way
9 of an Interim Direction. This is not a formal court
10 document but a private communication between the
11 Director and the police."
12 What I want to ask you about that is: is it your
13 understanding that that derived from any statutory power
14 or was that just a working practice?
15 A. I think it's just a working practice.
16 Q. To descend on the particulars, we know here that when
17 the murder file was delivered, there was a confidential
18 attachment and in the confidential attachment there was
19 a reference to a further file that would be delivered on
20 the allegation against Mr Atkinson.
21 Where you have something like that in a file, would
22 it have been normal practice to issue a direction to the
23 police to hurry that up, for example, or to issue
24 a direction that nothing will happen on one file until
25 the other file has arrived?
2
1 A. It might be. Sometimes these things could be sorted out
2 by a phone call, but if the phone call -- the result of
3 it is, "Well, it will be quite some time before we get
4 you this", kind of thing, then I might want to make it
5 formal. Then I would issue an interim direction.
6 Q. So some things would have been dealt with efficiently,
7 quickly, without need for a direction. Is that fair?
8 A. Yes, that's fair.
9 Q. That's kind. Thank you. On that point see if you can
10 help us with this. As I said, you have the crime file
11 which arrives at the DPP's office. It has in it
12 a reference to a further file yet to come, which deals
13 with what we are calling a tip-off allegation, assisting
14 an offender, call it what you like.
15 Can you help us with the question whether you would
16 expect then to hold fire on dealing with the murder file
17 until you got the information about the possible
18 assisting offender file?
19 A. Probably, yes.
20 Q. All the more so, presumably, where the assisting the
21 offender file relates to somebody who might be a witness
22 in the murder?
23 A. Yes.
24 Q. Even more so if it is a police officer, presumably?
25 A. Probably.
3
1 Q. I am going to take you through your statement so some of
2 these questions might not appear to be particularly in
3 sequence.
4 If we can have a look at the next page, [81400],
5 paragraph 11, you are dealing here with the situation
6 around August 1997 and you say:
7 "It does not surprise me that forensics were not
8 available at that stage as it often took a long time for
9 forensic, pathology and medical reports to be prepared.
10 It is frequently the case that the police have
11 everything ready to submit to us apart from these
12 documents. It would not have been the job of the DPP to
13 chase them; that was a matter for the police, who alone
14 were tasked with obtaining the evidence. It was for the
15 police to liaise with the FSANI because they were the
16 investigators."
17 What I want to ask you about that is what knowledge
18 you had in 1997 of any liaison unit or liaison structure
19 there was between the DPP, FSANI, pathologist, etc.
20 A. Well, we had a police liaison inspector, who was based
21 in our premises and he would have quite often been
22 involved in chasing forensic reports, I think. I didn't
23 have an awful lot to do with him, but that's my
24 recollection; that he quite often would have been
25 involved in that kind of activity.
4
1 Q. In practical terms, there you are with a file. The
2 yawning gaps are pathology, FSANI, what we are now being
3 told is the common gaps when the police were able to get
4 a file to you.
5 In practical terms, what did you do to get these
6 things in? I am not talking about this particular file.
7 I am just talking about the general practice in 1997?
8 A. Generally, it would have been to contact the officer in
9 charge of the case, probably initially by way of a phone
10 call, if I could get him, and then to follow that up
11 with an interim direction.
12 I probably wouldn't have gone directly to the
13 liaison inspector, except maybe the odd time, but
14 ordinarily it was to go to the officer in charge of the
15 case and say, "Can you please gee this up?"
16 Q. Right. Thank you. If we go over the page to [81401],
17 at paragraph 13, which takes the first half of the page,
18 you are dealing with a reference there to a conversation
19 you had with Lawrence Marshall on 17th November 1997.
20 You have recited in the witness statement a note you
21 made of that conversation about a small spot of blood
22 identified as Bridgett's blood on Robert Hamill's
23 trouser leg.
24 In the italicised part, if we take the final
25 sentence:
5
1 "The fact that the blood was not in an elongated
2 shape means that there is nothing to indicate what
3 direction the blood came from."
4 You then go on to say:
5 "I do not recall this conversation and the note
6 means nothing to me. I can say that the correct
7 procedure following such a conversation would have been
8 for me to speak to the senior investigating officer and
9 ask him to request a further statement dealing with the
10 additional information. Whether I did that in this case
11 I cannot be sure. I may have simply have asked
12 Mr Marshall to do a statement while I was on the
13 telephone."
14 Is it fair then that you would have expected
15 a statement to result from that, either as a result of
16 you asking Mr Marshall directly, or as a result of you
17 communicating it to the officer?
18 A. I can't recall did I already have a statement from
19 Lawrence Marshall.
20 Q. Not dealing with this.
21 A. Not dealing with that.
22 Q. The sequence here is that, to help you, Mr Kerr, who had
23 been advising on it, wanted to know more about the blood
24 spot, its shape and whether Mr Marshall could say
25 anything about whether the shape told you whether there
6
1 had been contact or what about the relationship between
2 Mr Bridgett and Mr Hamill, and so you went to talk to
3 Mr Marshall about it, so we gather, to find that
4 information for the purposes of Mr Kerr's consideration.
5 A. So the question is: now that he has told me about the
6 directional issue, did I ask him for an additional
7 statement or did I ask the police?
8 Q. You are fairly saying here you can't remember.
9 A. Yes.
10 Q. What I am trying to get from you is whether your
11 evidence is you would have expected one of those things
12 to happen: either you would have asked for the statement
13 or the police would have asked for a statement. If you
14 can't say, say that.
15 A. Well, if I had wanted a statement, I either would have
16 asked Mr Marshall for a statement or asked police to get
17 it. I may not have wanted a statement. It may have
18 been sufficient that I had taken a note of what he would
19 say in evidence.
20 Q. Okay. Thank you. If we move on to page [81405], at
21 paragraph 30 -- let's just take the first couple of
22 sentences. You are dealing here with a consultation you
23 attended on 17th October 1997 with, amongst others,
24 Tracey Clarke. You say:
25 "As I recall, there was an option for us to put the
7
1 statement of a witness on paper and then make
2 an application to have her statement read on the basis
3 that she would not give evidence otherwise through fear.
4 I think it was referred to as an Article 3 statement
5 under the 1988 Order."
6 You go on:
7 "I know that there have been cases where the police
8 have established that not only is the witness in fear,
9 but they have also been satisfied that the witness' life
10 is in danger or would be in danger even with
11 an Article 3 statement because their identity would
12 become known."
13 We know that here Tracey Clarke had been the subject
14 of very serious consideration about witness protection
15 by the detective chief superintendent in charge of the
16 murder case, and that there had been concern on the
17 police side throughout that she might not give evidence
18 because she might come under some sort of pressure.
19 By all means, we can look at the note of what
20 happened at the consultation, but I want to ask you in
21 general terms at the moment what your understanding is
22 of how that Article 3 Order, or Article 3 of the Order,
23 would work where you have a witness where there is some
24 suspicion of fear.
25 What was the system?
8
1 A. Well, where we became aware that a witness was afraid
2 and, for that reason, did not want to give evidence, we
3 would make an assessment as to whether or not we wanted
4 to make an Article 3 application to have her statement
5 read. If we thought, "Yes, we do", then we might take
6 a statement from her.
7 Q. About fear or about --
8 A. About the fear.
9 Q. Right.
10 A. Purely about the fear, and she could say, "I am in fear
11 and I don't want to ..."
12 We would certainly have asked the police officer or
13 police officers dealing with her to make statements
14 detailing that she communicated to them that she was in
15 fear and also asking the police officers to make
16 observations in the statement as to her demeanour.
17 So, for example, if she was crying when she was
18 telling them this, or if she was clearly agitated or
19 wringing her hands, you know, that kind of thing, that
20 they would put that in the statement, because that would
21 help support her assertion that she is in fear. Then
22 with that evidence go to the court and make the
23 application.
24 Q. Right. Can we descend on the particular and have a look
25 at page [17591], which is your note? We have looked at
9
1 it already in your evidence. It is the middle three
2 paragraphs. Can I take the second and third of them?
3 The second one starts:
4 "Witness A is a pleasant looking, reasonably
5 well-dressed young woman. As she walked into the room
6 she looked worried and as soon as Gordon Kerr started to
7 talk to her she started to cry. She cried quite
8 frequently during the consultation but was able to
9 relate the events of the night more or less in
10 accordance with her statement. She had not had
11 an opportunity to refresh her memory. She is reasonably
12 articulate and seemed to be telling the truth. If she
13 were to give evidence, I consider that she would come
14 across as very truthful.
15 "At the end of the consultation she was asked about
16 the possibility of giving evidence. She stated that she
17 would rather die than give evidence. She said she
18 wouldn't give evidence because she loves
19 Allister Hanvey, to whom she was formerly engaged. She
20 stated that it was hard to give evidence against the
21 others because she knows them all. She and her family
22 are all very worried about the possibility of attack by
23 Loyalist paramilitaries. Her father stated that he
24 would like to see the accused going to court, but he
25 stated that going to court will destroy Tracey."
10
1 Now, we don't have any record of the discussion
2 about the prospect of using her statement under
3 Article 3 and it is not entirely clear yet just what
4 happened about that.
5 Looking at that now, can you tell us your impression
6 of whether that would, in your view, support
7 an application under Article 3 to a judge?
8 A. My view is that it wouldn't, because -- I can't
9 remember, but, as I read that, my understanding is that
10 her primary reason for not giving evidence is not fear.
11 Q. I need to deal with that; mixed motives.
12 Are you telling us that it is only if the primary
13 reason is fear that you would have gone ahead with
14 Article 3 or is that too technical?
15 A. No. It's a -- I mean, if it could also be said that,
16 apart from her love from Hanvey, she was in such fear
17 that she would not give evidence, then I think you could
18 have gone on to have made the Article 3 application.
19 It's hard to know whether I'm remembering this or
20 I'm reading it in from the note, but my feeling now, as
21 I look at that, is that I didn't think that we could
22 show that she wouldn't give evidence because of fear and
23 I think that the last two sentences:
24 "She and her family are all very worried ..."
25 I know it reads all part of one paragraph, but I get
11
1 the impression those last two sentences come from the
2 general discussion with her and her father at the end.
3 Q. I should make it clear that Mr Kerr's note of this is
4 slightly different and he tends to suggest that the
5 contention of fear comes from the family.
6 A. Oh, right.
7 THE CHAIRMAN: But you think you may have got the idea that
8 she was afraid from discussing with her family?
9 A. That's my feeling, yes. Whether it is a memory, whether
10 I am reading it in into the -- my feeling is that her
11 reason that she didn't want to give evidence was her
12 love for Hanvey and because she knows these others,
13 and it wasn't -- perhaps a little bit of fear aspect to
14 it, but ...
15 MR UNDERWOOD: I take it from this, but please comment, that
16 she would not have been willing to sign a statement to
17 the effect that she wished her statement to go in
18 evidence against Hanvey because she was too afraid?
19 A. Yes.
20 Q. So all you would have had then to base an Article 3
21 application on was, as it were, the evidence of police
22 officers and perhaps anybody else at the consultation
23 about what she had said about fear and her demeanour?
24 A. Yes.
25 Q. Right. Thank you. I want to go over to paragraph 33,
12
1 which is on page [81406]. You tell us there that you
2 issued a direction to prosecute Mr Hobson on murder on
3 20th January 1998. We can look at that if you want, but
4 I am using it as an anchor point for a series of
5 questions.
6 We also know that a decision was made on somebody's
7 part that Mr Atkinson would be used as a witness in
8 that. Now, was that your decision?
9 A. I can't recall.
10 Q. Tell us about how the system worked then. You would
11 issue a direction to prosecute. We know that.
12 Presumably you then had custody of the file.
13 A. Yes.
14 Q. Of course, it is a murder. It is likely to have leading
15 counsel prosecuting it. Is that fair?
16 A. Yes.
17 Q. At some point you get leading counsel in to advise with
18 that.
19 A. Yes.
20 Q. In terms of the system back then in 1998, ordinarily,
21 would you make a decision about who the witnesses were
22 to be or would you leave that to counsel?
23 A. No, ordinarily, that would be my decision. I would be
24 pretty sure that it was my decision. I am saying
25 I can't recall and that is true, but it would be very
13
1 unusual if it wasn't my decision.
2 Q. Okay. So assume for the moment that you had made the
3 decision to use Mr Atkinson. Can you help us about
4 whether that decision was likely to have been made
5 relative to the direction to prosecute?
6 A. Probably a few weeks beforehand. I mean, the system
7 then, as now, in fact, is that I will consider the file,
8 decide, "Yes, I am going to prosecute for murder", and
9 then I will draft the various papers and I will also
10 draft the list of witnesses. That then goes to the
11 typing pool and is all typed up and a couple of weeks
12 later it comes out the other end.
13 Therefore that's when the direction issues. So the
14 decision as to what witnesses to use probably happened
15 a couple of weeks before that.
16 Q. That's helpful. Thank you. We know, in fact, that, as
17 it were, the final piece of jigsaw about whether to
18 prosecute Mr Hobson was an advice received from Mr Kerr
19 in December.
20 So that fits, does it, that there would have been
21 a decision based on not least his advice? The package
22 goes off to typing, including a decision about which
23 witnesses and then it all comes out as a direction?
24 A. Yes. It seems to fit.
25 Q. That's helpful. Thank you. We also know that in
14
1 February, either 12th or 13th February, the neglect
2 file, what we are calling the neglect file, turns up.
3 That contains the discussion of the tip-off allegation
4 against Mr Atkinson.
5 Now, there is no suggestion that that went to you,
6 at least at that stage. What I want to know is: at any
7 point, did you have cause to reconsider the decision to
8 use Mr Atkinson based on what was alleged against him in
9 the neglect file?
10 A. I can't recall, but I imagine that at some stage I would
11 have had the complaint file in order to visit the issue
12 of disclosure to the defence.
13 Q. Well, if we look at page [18148], it's a letter over
14 your name of 31st March:
15 "I refer to your letter dated 18 March. I confirm
16 that at the Maze court on 8 April our application will
17 be to remand your client", that's Mr Hobson, "to
18 Craigavon for a special sitting commencing on 20 April
19 1998. I have spoken to police who are checking the
20 availability of witnesses. We will summons the 5 who
21 are listed by you in your letter and we will also
22 request that [two officers] attend court. However,
23 summonsing them to appear to five evidence should be
24 done by your office. They should be summonsed c/o
25 Portadown RUC station.
15
1 "I am presently preparing disclosure arising out of
2 the Complaints and Discipline file. This should follow
3 within a few days of the receipt of this letter."
4 So does that help you about when you were likely to
5 have got the Complaints and Discipline file?
6 A. Yes.
7 Q. I take it by Complaints and Discipline we are talking
8 about the same file?
9 A. I imagine so, yes.
10 Q. Help us with the system there then.
11 So at some point around there in March, you are
12 certainly in possession of the neglect file. Would that
13 have been pure disclosure purposes? Why would you have
14 got it?
15 A. Yes, I think it would have been purely for disclosure
16 purposes, because somebody else -- I think it was
17 Mr McCarey -- had been tasked to take the prosecution
18 decision on the neglect file.
19 Q. What I am interested in is whether anybody suggested to
20 you, or would systematically have suggested to you, to
21 consider a read-across from it to your file.
22 So, for example, you would be asked whether you
23 would stand by your position to use particular
24 witnesses.
25 A. Well, I can't remember any of it, but having got the
16
1 neglect file, what I should have done in deciding what
2 should be disclosed is, if I came across something which
3 caused me concern, I might -- I ought then to have
4 revisited -- that's what I should have done -- the
5 decision to use the witness.
6 Q. If you had done that, would you have made a record of
7 it?
8 A. I imagine I probably would, because somebody would have
9 wanted to know why. When I say "somebody", somebody
10 down the line who is actually prosecuting it in court
11 would be wondering, "Why on earth did he decide to use
12 this witness and then decide not to use him?"
13 So I would imagine I did not take the decision.
14 Q. Not least, I would suggest to you, in the circumstances
15 where you have a police officer, Mr Neill, who
16 specifically says he identifies Mr Hobson kicking at
17 Mr Hamill, and there is an issue about whether he could
18 have seen that because there is an allegation they were
19 sitting in the Land Rover while all this was going on,
20 and that what you had Mr Atkinson for was corroboration,
21 if you like, of them getting out before this assault, of
22 generally dealing with the confrontation, if you like,
23 together.
24 So the decision to suddenly cease using Mr Atkinson
25 would have been quite striking, wouldn't it?
17
1 A. It really would.
2 Q. So if you had considered that and decided not to use
3 him, you certainly would have made a record of that?
4 A. I would think so.
5 Q. If you had considered it and thought there were reasons
6 why using him might be in some way dangerous, but
7 nonetheless you felt it necessary to carry on, would you
8 have recorded that?
9 A. No.
10 Q. We know that the neglect file had in it the allegation
11 which was contained in Tracey Clarke's statement anyway,
12 which was to the effect that he, Atkinson, had rung up
13 Mr Hanvey on the morning after the event and advised him
14 to get rid of his clothes; that when police checked the
15 phone records there was indeed a phone call about 8.30
16 or so that morning from the Atkinson household to the
17 Hanvey household; that, when taxed with that,
18 Mr Atkinson had come up with what we are calling
19 an alibi: namely, that somebody else had made the call;
20 and police had suspicions about whether that was a true
21 alibi.
22 Now, faced with those things, had you taken those
23 things on board, as it were, in part of a consideration
24 whether to use Mr Atkinson, would they have been
25 material, do you think, to the question whether you
18
1 would continue using him?
2 A. I think so, yes.
3 Q. Because there is a real risk, isn't there, he is not
4 a witness of truth on the very issues you need to be
5 asking him about: namely --
6 A. That's right.
7 Q. -- what he saw. Sorry, I overspoke there.
8 A. That's right.
9 Q. You said "That's right"?
10 A. Yes.
11 Q. As I understand your evidence, you have simply no recall
12 of this?
13 A. That's right.
14 Q. On reflection, now that you know what was contained in
15 the neglect file was material to whether Mr Atkinson was
16 telling the truth about what he saw and about his
17 sympathies, what do you say about the decision to carry
18 on using him?
19 A. I think the decision to carry on using him was within
20 the range of decisions that a reasonable prosecutor
21 could take.
22 Q. So a number of people would have made the opposite
23 decision?
24 A. I think it's possible, yes.
25 Q. Right. Now let's move on.
19
1 Assume that you did make a decision to carry on
2 using him with those factors in mind, how important was
3 the disclosure obligation then?
4 A. Important.
5 Q. Very important? I mean, vital, wasn't it? It is
6 a murder trial.
7 A. Yes.
8 Q. You have what's potentially a bent copper giving
9 important evidence.
10 A. Yes.
11 Q. Would it surprise you if I told you that no part of the
12 DPP files show us what was disclosed at any point by way
13 of a disclosure schedule?
14 A. Sorry. Say that again.
15 Q. Would it surprise you if I told you that no DPP file
16 relating to Hobson, either before or after committal,
17 contains a disclosure schedule?
18 A. That does surprise me.
19 Q. There was bound to have been disclosure post-committal,
20 wasn't there, by way of a proper schedule?
21 A. Are you talking about the schedule that the police
22 normally compile?
23 Q. I am talking about any schedule that would have been on
24 the file of the DPP showing what documents had been
25 disclosed to the Hobson team.
20
1 A. Oh, right, because, when police compile an investigation
2 file, they are supposed to create a schedule of the
3 documents. You are not talking about that.
4 Q. No, because they are not going to look at the neglect
5 file and disclose things, are they? That's the task of
6 the DPP.
7 A. Oh, right. Was there a schedule on the neglect file?
8 Q. There is no schedule of what was disclosed to Hobson on
9 the DPP's files.
10 A. Are we saying, although in this letter in front of me
11 I am saying I am preparing disclosure, there is no
12 evidence of me disclosing anything?
13 Q. Correct.
14 A. Oh, right. Well, that surprises me.
15 Q. I know we are dealing with a while ago and this was one
16 of those cases that's not stuck in the mind. What would
17 you have done in the ordinary course following a letter
18 like this? What would the document look like that you
19 came up with?
20 A. I imagine it would look like a letter which would say:
21 "In furtherance of my duty of disclosure, I am now
22 disclosing the following documents to you ..."
23 And then listing everything that was being
24 disclosed. In those days it was virtually everything.
25 That's what I would expect to see
21
1 Q. Bearing in mind what we know about the neglect file
2 here, which, as I say, contained in it a reference to
3 the telephone records supporting the contention that
4 there was a telephone call made at 8.30 or so on the
5 morning of the 27th, you would expect the fact of the
6 telephone record to be disclosed, wouldn't you?
7 A. Yes.
8 Q. Would you have expected opinion in the neglect file --
9 police opinion that is -- to be disclosed?
10 A. No.
11 Q. Let me put two specific things to you. Firstly, in the
12 neglect file, as I have said, Mr McBurney, who signed it
13 off, said that police may have their suspicions about
14 the alibi and you are telling us that wouldn't have been
15 disclosed to the defence. Is that right?
16 A. The police view of the evidence would not have been
17 disclosed to the defence.
18 Q. What about your and Mr Kerr's view of the truthfulness
19 of Tracey Clarke?
20 A. No, that wouldn't be disclosed either.
21 Q. So what we have here is a witness upon whose statement
22 a number of people were kept in custody for six months
23 and who, had she decided to give evidence, would
24 undoubtedly have been the principal witness in the
25 murder, who, in the same statement as deals with the
22
1 murder, deals with what one of the murderers allegedly
2 admitted to her about the tip-off.
3 Wouldn't that be relevant to the cross-examination
4 by Hobson's team of Atkinson?
5 A. Yes.
6 Q. It would undermine Atkinson's credibility, wouldn't it?
7 A. It could do, yes.
8 Q. So why wouldn't your opinion of her veracity be highly
9 relevant and helpful to their team and, in fact, to the
10 judge who was trying it?
11 Can I help you by suggesting this: Mr Kitson told us
12 yesterday it was simply a matter of policy that opinion
13 wouldn't be disclosed. Does that assist?
14 A. I suppose it does. I mean, I have certainly never, ever
15 disclosed -- well, I can't think of ever disclosing in
16 writing to the defence that I have taken a particular
17 view on a witness that they are very credible, quite
18 credible, moderately credible. You know what I mean?
19 Would I end up then giving evidence in court?
20 I mean, I think that does help. I have never -- I mean,
21 my understanding is that it would be my duty, where
22 there is something which undermines our case, or could
23 assist the defence, to let them have that document,
24 but ...
25 Q. It goes this far, doesn't it: you have to give them any
23
1 material in your possession which would give them
2 a line of enquiry?
3 A. I suppose.
4 Q. Do you accept that?
5 A. Any documents that are material, yes, relevant.
6 Q. So if the defence had been told, "Well, an interesting
7 line of enquiry for you might be that Tracey Clarke is
8 telling the truth, in our view, about the tip-off".
9 The difficulty you are having with this, if I might
10 respectfully suggest, is that's questions have not
11 occurred to you before, because, as a matter of
12 principle, consideration was simply never given to --
13 A. That is right.
14 Q. I don't want to be unfair.
15 THE CHAIRMAN: I am bound to say, Mr Underwood, having had
16 to consider disclosure sitting as a judge many times,
17 the notion that opinions would be disclosed has never
18 arisen. I think simply the facts are disclosed and it
19 is for others to draw their conclusion.
20 I can't see any way in which the judge could be
21 told, "This is what the prosecution think". If the
22 prosecution decide, "This witness is not creditworthy",
23 then they don't call the witness, and that's it. There
24 is no call then to explain why. They simply don't call
25 the witness. It might explain why, if the issue is
24
1 raised, why not.
2 MR UNDERWOOD: I just want to put this to you finally to
3 follow that up.
4 If you had alerted the defence to the telephone
5 calls, and if the defence had come back to you and said,
6 "Right. Prosecution counsel in this jurisdiction see
7 prosecution witnesses to form a view about their
8 credibility. We want you now to get Mr Atkinson in the
9 same room as Mr Kerr so that Mr Kerr can form a view
10 about Mr Atkinson", what would happen then?
11 A. I am not sure that I am following you 100%. Your
12 suggestion has been put to me that we should consult
13 with Mr Atkinson?
14 Q. No. I am trying to get you to speculate -- I accept
15 that -- on this.
16 If you had disclosed to the defence -- I say
17 "you" -- if the service had disclosed to the defence the
18 fact that telephone records substantiated the hearsay
19 evidence of Tracey Clarke, or appeared to, and if the
20 response of the defence had been to say, "Well, before
21 you go any further in this prosecution, can you now
22 please form a view about Atkinson by way of getting
23 Mr Kerr to consult with him as a prosecution witness?"
24 what would have happened?
25 A. We wouldn't have done it.
25
1 Q. Why?
2 A. I just don't think that's our role.
3 Q. So why consult with Tracey Clarke and Timothy Jameson
4 but not with Atkinson?
5 A. Right. I see what you are saying. Well, there might be
6 some circumstances in which we might feel, "Well, yes,
7 okay, that is appropriate", because, as you point out,
8 we do see witnesses from time to time.
9 One of the things that would concern me, having
10 taken a decision to use a witness and become aware of
11 potential issues with their credibility -- and this is
12 always a concern even at any stage we see a witness --
13 is, if we consult with them and say, "Here is
14 a potential problem with your evidence", it gives them
15 a chance to practise.
16 Q. That's exactly what happened with Mr Prunty, isn't it?
17 You were going to use Mr Prunty. Information comes into
18 the DPP's office to the effect that Mr Prunty has now
19 made a further misidentification and he is hauled in to
20 look at some photographs. If he had chosen the
21 photograph of the man against whom he had first made the
22 identification, that would have put you in exactly that
23 position, wouldn't it?
24 A. I just can't remember enough about Prunty.
25 Q. Right. Can I suggest this as an answer: there was
26
1 a serial testing of the lay witnesses here, Mr Wright,
2 Mr Prunty, Jameson, Tracey Clarke, but even though there
3 was this very serious allegation which was in an open
4 file on the DPP's office against Atkinson, nobody
5 troubled to have a consultation with him, because he was
6 treated differently because he was a policeman.
7 A. Well, I think there is a sense in which that is partly
8 true. One expects that a police officer is capable of
9 giving evidence. Ordinarily one expects they will give
10 credible evidence. With civilians who mostly have no
11 experience with the criminal justice system, one has no
12 idea sometimes whether or not they will be able to give
13 credible evidence or even willing to do so. So the
14 issues there are big, and quite often, you know, they
15 need to be teased out, whereas with a police officer one
16 would expect that he is both willing and credible.
17 Now, if an issue arises which casts doubt, my duty
18 is to let the defence know about that issue by
19 disclosing documents to them and then for them if they
20 want to cross-examine that individual in court.
21 Now, if the issue which tends to affect the
22 credibility of the police officer is so strong in terms
23 of evidence and it is so obvious that he is lying
24 through his teeth, then -- and it is not really an issue
25 for the court anymore, but we can see that, you know, he
27
1 is not going to be a credible witness, we would probably
2 then take the decision, "We will not use this witness
3 anymore".
4 Q. But the difficulty is in the middle ground, isn't it,
5 where you have allegations which are sufficient to
6 ground a file to the DPP, which remains open in the
7 DPP's office against the very witness you are calling?
8 Isn't that a good basis for breaching the normal
9 practice, or was no consideration given to breaching
10 normal practice in 1998 in the DPP's office?
11 A. I mean, I can't recall if it was or it wasn't. I can
12 only assume that we took the view that, "These
13 allegations have been made. There is a certain amount
14 of evidence which tends to substantiate it, but we still
15 feel he can give credible evidence and it is a matter
16 for him under cross-examination to give his evidence."
17 Q. Finally, would it surprise you to know you did not even
18 disclose Tracey Clarke's statement to the defence?
19 A. Not necessarily, as long, I suppose, as it was disclosed
20 to the defence the allegation that was being made
21 against Atkinson.
22 Q. It is very difficult to know. At some point, there was
23 disclosure of the interview at which, in very general
24 terms, Atkinson was asked whether he had made a phone
25 call on the morning.
28
1 A. The thing about Tracey Clarke was, I mean, she came in
2 as Witness A or something. There was an issue about her
3 safety. If we had disclosed -- well, I imagine there
4 were issues about disclosing her statement and her
5 identity to the defence from the safety point of view.
6 We might have taken the view that, "We had better not
7 disclose her statement, but as long as the defence are
8 aware of the allegation, that will enable them to do
9 their job in cross-examination in court".
10 MR UNDERWOOD: Thank you very much.
11 THE CHAIRMAN: I suppose if Tracey Clarke had to be called
12 as a witness, in any event her statement would be
13 disclosed, but if she were being called about some other
14 thing, there would obviously be a need to disclose her
15 statement because she was a witness?
16 A. Yes.
17 THE CHAIRMAN: Mr Wolfe?
18 MR WOLFE: No questions, sir.
19 MR ADAIR: No questions.
20 Questions from MR McGRORY
21 MR McGRORY: If I may.
22 Mr Davison, as you know, I represent the family of
23 Robert Hamill.
24 Can I just ask you, first of all, briefly, about the
25 issue of whether or not a statement should have been
29
1 taken from Tracey Clarke concerning the extent of her
2 fear once the issue of a threat to her or some
3 consequence it her was touched upon in the consultation?
4 Now, can I take it from your note you do accept that
5 although, as you say, the primary reason she gave was
6 her love of Allister Hanvey, there was still some
7 expression of fear, at least by her parents, which she
8 agreed with during that consultation?
9 A. Well, I mean, I had noted in the consultation what she
10 was like, what her attitudes were and so forth. The
11 only reason we would have wanted to have taken
12 a statement from her about her fear had been if we
13 thought, "Yes, we do want to make an Article 3
14 application and we need a basis for that".
15 As we had decided we didn't want to make
16 an Article 3 application, there is no need to make
17 a statement about her fear. We had recorded it.
18 Q. You see, one of the things she had said was not just
19 that she loved Allister Hanvey, but that she knew all of
20 the others.
21 Now, that might suggest that she didn't want to give
22 evidence against them because they were friends, or,
23 because she knew them and they knew her, that she would
24 fear of the consequences of giving evidence.
25 Did that occur to you, that that's what that meant?
30
1 A. Well, I have no recollection, but my reading of my note
2 is that it was more to do with the fact she knew them,
3 liked them, they were her friends rather than she was
4 afraid of them, but I am surmising that from the note.
5 Q. Did anyone ask her a direct question, "Would you agree
6 to giving a statement that you are, in fact, afraid?" as
7 one of the reasons?
8 A. I can't recall if she was asked that, but I doubt that
9 she was asked that.
10 THE CHAIRMAN: I can see certain difficulties in asking
11 a question of that nature. It might be said later the
12 idea had been put into her mind --
13 MR McGRORY: Well, if --
14 THE CHAIRMAN: -- which could have damaging effects.
15 MR McGRORY: Well, if there is an expression of fear,
16 I don't think that would be such a risk, but I am moving
17 on from this issue in any event. It is a matter for
18 submissions.
19 Can I move on to the issue of the decision to use
20 Reserve Constable Atkinson as a prosecution witness?
21 Now, there was quite a body of correspondence which
22 I went through rather painstakingly with Mr Kitson
23 yesterday and I don't intend to through it painstakingly
24 with you, everybody will be glad to hear, Mr Davison.
25 We are all aware that Mr Monteith was raising the
31
1 issue from a very early stage in respect of the
2 disclosure of the statements of Witnesses A and B, of
3 whom he was aware from attending the interviews of his
4 various clients during the murder investigation.
5 Those letters were addressed initially to Mr Kitson.
6 Now, dealing firstly just with the procedures within the
7 Director's office, he was the Assistant Director who had
8 overall charge of the case. Isn't that right?
9 A. Yes.
10 Q. But if letters were addressed to him seeking disclosure
11 of certain aspects of the prosecution evidence, would
12 they have been shared with you?
13 A. Well, I was the allocated caseworker --
14 Q. Yes.
15 A. -- and, normally, certainly before the case actually
16 gets to the Crown Court, it would be me that would be
17 dealing with the correspondence. I don't know why
18 Mr Kitson was dealing with them.
19 THE CHAIRMAN: Well, he doesn't say he was.
20 MR McGRORY: No. They were addressed to Mr Kitson.
21 A. Oh, they were addressed to him.
22 Q. When they came into the office, even though they are
23 addressed to Mr Kitson, would they just have gone to you
24 as the caseworker?
25 A. Well, in most cases if they are addressed to Mr Kitson,
32
1 he would look at them and say, "Oh, this is not my case.
2 This is Roger's case". Then those letters would have
3 gone to me and I would have dealt with them.
4 Q. Is it not his case as well, in the sense that he is your
5 supervisor?
6 A. In this particular case, yes. This case was unusual in
7 the sense that he was very involved in many of the
8 decisions.
9 Q. Indeed, this is one in which the Director had personally
10 flagged up an interest himself --
11 A. That's right.
12 Q. -- and asked to be kept informed. So one would assume
13 then that this is one of those cases that you would be
14 slow to take major decisions on without referring to
15 Mr Kitson. Is that fair?
16 A. I think that's probably fair.
17 Q. Now, when it comes to the point then of taking the
18 decision on the committal, by now we are in
19 February 1998 and the case against most of those
20 originally accused has been dropped for the reasons that
21 we have discussed in terms of the reluctance of certain
22 witnesses to come forward, but the case is continued
23 against Marc Hobson. The decision is taken then to hold
24 a committal. The committal is set originally I think
25 for 13th March in 1998. Does that ring a bell?
33
1 A. The date doesn't ring a bell, but I do remember
2 attending what we called a mixed committal.
3 Q. Yes. Well, in terms of setting up a committal and in
4 sending out relevant papers, what you did was you
5 decided the witness list, the Crown witness list, the
6 main witnesses in the prosecution. A decision has to be
7 taken as to who you are going to use. Isn't that right?
8 A. Yes.
9 Q. They go on on the preliminary inquiry papers?
10 A. That's right, on the list of witnesses.
11 Q. Then a decision is taken in respect of primary
12 disclosure?
13 A. Yes.
14 Q. That's taken pre-committal?
15 A. Yes.
16 Q. The solicitor for the defendant gets the PE papers plus
17 a certain amount of primary disclosure?
18 A. It's hard to remember -- I am divorcing in my mind
19 what's happened then and what happens now. My
20 understanding is that the solicitor does not get any
21 disclosure until committal, immediately after committal.
22 Q. Yes.
23 A. On the day of committal usually.
24 Q. May I remind you what the procedure was? The solicitor
25 gets the PE papers first.
34
1 A. Yes.
2 Q. Then, on the morning of the PE --
3 A. Yes.
4 Q. -- the solicitor is delivered personally, or counsel on
5 his behalf, a box or an envelope of primary disclosure.
6 A. Yes, yes.
7 Q. So certain decisions have to be taken. Now, let's deal
8 first of all with the decision as to who is going on the
9 papers as to prosecution witnesses.
10 A decision was obviously taken to use Reserve
11 Constable Atkinson. Now, what I am going to suggest to
12 you is that Reserve Constable Atkinson isn't just any
13 other police witness. He is a police witness who, at
14 one point at least, was a suspect in this case as being
15 someone who was an accessory to murder after the fact.
16 A. Yes.
17 Q. Isn't that the truth?
18 A. That is right.
19 Q. So would that not raise a flag of alarm or concern that
20 care needed to be taken about the decision to use him in
21 the murder case, the very same case in which he was
22 a suspect at one point?
23 A. Well, my understanding -- and you can correct me if I am
24 wrong -- is that, at that point, the point in time when
25 I decided to use him as a witness and put him on the
35
1 committal list, the only indication I had that there was
2 a question mark over his evidence came from the
3 statement of Tracey Clarke.
4 I don't think, at that stage, I was aware of the
5 telephone records, for example, that tended to support
6 that, and at that stage, all I had was Tracey Clarke in
7 a sense giving hearsay evidence. She was told by Hanvey
8 that he had had this conversation with Atkinson. There
9 was nothing to support that assertion by her at the
10 stage when I directed him as a witness.
11 Q. But would that not at least have raised an enquiry as
12 to, "What's happening with that aspect of the
13 investigation into this policeman that I am intending to
14 use as a prosecution witness?"
15 A. Well, it would have been something that I realised had
16 to be dealt with at some stage, but at this stage I have
17 to direct proofs, and, at that point, I had no -- I had
18 insufficient evidence not to put him on the papers.
19 Q. Was this something that would have been discussed with
20 Mr Kitson?
21 A. It might have been.
22 Q. Can you recall whether it was or not?
23 A. I can't recall.
24 Q. So you are taking a decision to use this police officer
25 in respect of whom you have a statement from
36
1 Tracey Clarke to the effect that he has been tipping off
2 one of the other murder suspects?
3 A. That's right.
4 Q. Were you not then concerned that there might be an issue
5 over his credibility?
6 A. I probably was.
7 Q. But you decided to use him anyway?
8 A. Yes.
9 Q. Then the next step would be, in terms of the neglect
10 file, it came in in early February, which is at least
11 before the PE, which was listed for 13th March I am
12 telling you.
13 A. Okay.
14 Q. Do you remember the neglect file coming in?
15 A. No.
16 Q. So there is no sense then that you actually waited for
17 the neglect file to come in before deciding to use
18 Reserve Constable Atkinson? You were just going to use
19 him anyway?
20 A. That's correct.
21 Q. Well, having taken that decision then, the next decision
22 that I suggest you needed to take as a prosecutor is to
23 what extent you told the defence that the policeman you
24 had decided to use in the murder case was a suspect at
25 one point and may indeed still be?
37
1 A. Well, I don't think it is correct to say that he was
2 a suspect. At this stage, all we had was hearsay from
3 Tracey Clarke that he had been tipping off. When the
4 neglect file came in, it didn't come to me. It was
5 allocated to somebody else. At some point, it was given
6 to me to consider disclosure.
7 Q. You see, he was a suspect. This is a policeman in
8 respect of whom the evidence had come in from
9 Tracey Clarke; as you say, hearsay. Telephone records
10 had been sought and had been obtained which supported
11 the suggestion that there was telephone contact at
12 least, who was interviewed under caution twice about
13 being -- the offence of assisting offenders, amongst
14 other offences. So this is a pretty serious situation
15 in respect of whether or not you should use him as
16 a prosecution witness and what you should tell the
17 defence about him.
18 A. Yes.
19 Q. Do you not agree?
20 A. Well, I do agree, and, not having any memory of it,
21 hopefully we did all that eventually before the trial.
22 It was considered whether to use him. It was considered
23 what should be disclosed to the defence. I don't know
24 that it all had to be done prior to committal and
25 I don't even know that I could have done it prior to
38
1 committal.
2 Q. You see, Mr Monteith is, I suggest, unaware of the
3 extent of the suspicions about Mr Atkinson as the PE
4 approaches, and, in fact, he called a mixed committal.
5 Amongst the witnesses he asked to be called to give
6 evidence was Reserve Constable Atkinson. Are you aware
7 of that?
8 A. I can't recall that.
9 Q. You see, you are the directing officer here -- sorry --
10 you are the case officer. Is that your title?
11 A. Directing officer is fine.
12 Q. As of 18th March, the mixed committal is then adjourned
13 to 20th April. As of 18th March, as far as the
14 prosecution was concerned, both Constable Neill and
15 Reserve Constable Atkinson were going to be examined by
16 way of oral evidence at a mixed committal.
17 Have you any memory of that?
18 A. I don't.
19 Q. Well, at that point, I am suggesting to you
20 consideration should be given as to what information
21 should be given to the defence about Reserve Constable
22 Atkinson.
23 A. I think that's right.
24 Q. You see, Mr Monteith had been asking and the statement
25 of Tracey Clarke was specifically not given to him. Do
39
1 you remember being involved in any discussion or in
2 considering whether or not it should or should not be
3 given to him?
4 A. I can't remember. I mean, I can see that -- I mean,
5 I have no recollection of this at all, but, I mean,
6 given what we are saying, if I were back in those days,
7 if Atkinson was being called, as you are saying he was,
8 to give evidence at the PEPI, then I suspect that, given
9 that the defence would be wanting to cross-examine him,
10 we should have made the defence aware that there was
11 an allegation which would tend to undermine.
12 Now, I imagine we didn't do that. If that is the
13 case ...
14 THE CHAIRMAN: Just so I follow, Mr McGrory, the purpose of
15 these questions is to show either that Atkinson ought
16 not to have been called on the murder charge, or that
17 more information should have been given to the defence
18 to enable him possibly to be discredited as a witness.
19 MR McGRORY: Yes. He could have been cross-examined about
20 the investigation into himself at the mixed committal
21 and indeed, sir, while the test the magistrate has to
22 consider at a committal is lower than that at a criminal
23 trial, the law is that evidence given at a mixed
24 committal is admissible in a trial.
25 Therefore, any answers that Mr Atkinson might have
40
1 given to the defence in cross-examination at the mixed
2 committal would have been evidence in the trial and,
3 therefore, it is an important issue in the proceedings.
4 So those are the reasons for the questions.
5 I have only a few more questions to ask you about
6 this subject, Mr Davison. I think to be fair to you,
7 you should be shown a letter at [18148], which is dated
8 31st March 1998, in which you say in the bottom
9 paragraph -- it is from you to Mr Monteith, I think:
10 "I am presently preparing disclosure arising out of
11 the Complaints and Discipline file. This should follow
12 within a few days of the receipt of this letter."
13 So you did address the issue of to what extent
14 Mr Monteith should have disclosure out of the Complaints
15 and Discipline file?
16 A. Yes.
17 Q. But, unfortunately, there is absolutely no record of
18 what he was given out of the Complaints and Discipline
19 file. Presumably, within a few days of this, if
20 Mr Monteith was being given something, there would have
21 been a covering letter?
22 A. I would have thought so, yes.
23 Q. Have you any recollection as to whether or not he was
24 handed all of the interviews, or edited versions of the
25 interviews, or not the interviews at all?
41
1 A. I have no recollection of this whatsoever. I am sorry.
2 MR McGRORY: I can't take it any further.
3 THE CHAIRMAN: Yes, Mr Mallon?
4 Questions from MR MALLON
5 MR MALLON: Good morning.
6 A. Morning.
7 Q. I appear on behalf of Mr and Mrs Atkinson. I think you
8 know me, Roger, well enough, that I don't have to give
9 you a name.
10 If document number [17591] could be put up. That's
11 the note of your consultation with Tracey Clarke, among
12 others. It is the paragraph in the centre of the page,
13 please. In your statement in paragraph 26 you indicate
14 that:
15 "I cannot now recall this conference."
16 Is that accurate?
17 A. Yes, I don't recall it.
18 Q. When Tracey Clarke came in and her evidence was gone
19 through, do you at any time ever remember asking her if
20 it was true?
21 A. I don't recall if I asked that question.
22 Q. If you now go on to document [05197], you can see that
23 this issue of truthfulness was raised. This is,
24 I think, part of a HOLMES action print. There is
25 a request that Roger Davison of the DPP to examine the
42
1 DPP's -- I think it means consultation notes.
2 In reply to that:
3 "He said that at no stage of consultation did
4 Tracey Clarke indicate that her statement was
5 untrue ..."
6 A. Sorry, who was saying that?
7 Q. Apparently a police officer who interviewed you:
8 "Spoke with Mr R Davison on 16.2.01."
9 I think it was allocated to c. That seems to be the
10 name above it. Do you remember that?
11 A. I have no recollection.
12 Q. It continues:
13 "He said that at no stage of consultation did
14 Tracey Clarke indicate that her statement was untrue.
15 Her retraction had been as a result of her love of
16 Allister Hanvey and some dealing with Loyalist
17 paramilitaries."
18 Now, you have been asked the truthfulness or
19 untruthfulness of the statement, and yet you didn't ask
20 Tracey Clarke whether it was truthful or not.
21 Does that surprise you?
22 A. I am not sure what you are saying is accurate. How can
23 you ask that question?
24 Q. Because I have asked you and it is not recorded as being
25 truthful in your notes. Do you remember asking her if
43
1 the statement was true or not?
2 A. I don't remember. I might have asked her.
3 Q. Well, in your record of the interview that matter is
4 never raised. Truthfulness or otherwise is never
5 raised.
6 A. Well, my note that we have just looked at seconds ago --
7 Q. Yes.
8 A. -- indicates that I have formed a view that she was
9 being truthful.
10 Q. Yes. I understand --
11 A. But I can't remember whether I specifically asked her,
12 "Is this true or not?"
13 Q. When you came into the witness box, you were asked to
14 look at a statement. If Mr Underwood followed his
15 invariable course, he would have asked you, "Is it
16 true?"
17 Did you do that with Tracey Clarke?
18 A. I can't remember.
19 Q. In relation to the other aspect of this, the fear aspect
20 that you thought was generated by the parents, if you
21 thought a witness was genuinely in fear, would you raise
22 with her the necessity for a security assessment or for
23 special measures in court, if you thought a witness was
24 in fear?
25 A. If I thought a witness was in fear and if I had taken
44
1 a decision we wanted to use her evidence, then I might
2 well raise the question nowadays of whether or not she
3 could give evidence by television link or whatever.
4 Q. In those days there was screening, wasn't there?
5 A. Yes.
6 Q. Did you -- or were you ever aware of any security
7 assessment of risks against her being undertaken by
8 anyone arising out of any aspect of fear?
9 A. I can't recall any discussion of that.
10 MR MALLON: Thank you.
11 Questions from MR GREEN
12 MR GREEN: I have just one question for Mr Davison.
13 I appear for Mr Hobson, Mr Davison. I really just
14 want to ask you questions about the disclosure
15 procedures that existed in 1998 and 1999.
16 Now, we know that the law in relation to disclosure
17 is now statutory. Isn't that right?
18 A. Yes. The Criminal Procedure --
19 Q. But at that time --
20 A. -- Investigation Act.
21 Q. Yes, indeed. But at that time and at the time of this
22 investigation, it would have pre-dated that. Isn't that
23 right?
24 A. Yes.
25 Q. One of the differences, quite apart from it now being
45
1 prescribed, is the disclosure officer is, in fact, or
2 was at that time a single person -- isn't that right --
3 and he would have conduct of all matters dealing with
4 disclosure from the beginning of the case to the end.
5 Isn't that right?
6 A. The system now is there is a disclosure officer,
7 a police officer.
8 Q. Yes, indeed. At the DPP now there would be two people
9 responsible, or at least two approved processes of
10 primary disclosure and secondary disclosure -- isn't
11 that right -- at the present moment?
12 A. Yes.
13 Q. But on the dates that we are talking about here, there
14 would have been simply one process of disclosure and it
15 was an ongoing process. Isn't that right?
16 A. That's right.
17 Q. Now, whenever disclosure is made to a defendant through
18 either the defendant in custody or to his solicitor,
19 that's an important stage in a process, isn't it?
20 A. Yes.
21 Q. I mean, documents are not simply photocopied and posted
22 without any record being kept of them. Is that the
23 position?
24 A. Well, the position was that, when I directed proofs,
25 I would have listed the witnesses that I wanted on the
46
1 list of witnesses on the committal papers and I would
2 also have made out a separate list of all the unused
3 relevant material. Unless there was some particular
4 reason for not sending it all out, the solicitor got all
5 that.
6 Q. Whatever the solicitor was being sent through the post
7 or handed in court, a record is kept of that. Isn't
8 that right?
9 A. Yes. Well, there will be a copy of the list.
10 Q. The list is quite specific in what it records. It
11 records exactly what is being sent out to the solicitor.
12 Isn't that right?
13 A. Yes, that's right.
14 Q. We know that Mr Burnside was the disclosure person from
15 the department -- isn't that right -- in this case?
16 A. Yes. Well, initially, I take the decision to prosecute,
17 I decide what witnesses are needed, I decide what should
18 be disclosed.
19 When it gets to the Crown Court, his role -- he sort
20 of took on from there. I didn't really have a role
21 thereafter. He would have dealt with correspondence
22 that came in, questions from solicitors wanting further
23 disclosure. So that's where he came in.
24 Q. Questions about the disclosure of, for instance,
25 Tracey Clarke's statement, Witness A, and, for instance,
47
1 the ICPC interviews of Reserve Constable Atkinson, would
2 they have fallen for you to consider or would they have
3 fallen for Mr Burnside to consider?
4 A. Well, the answer is both, in that when the neglect file
5 came in, it seems from that letter that I did look at
6 that and decide what should be disclosed.
7 So I am presuming that a lot of material was then
8 disclosed at my decision, but subsequent to that,
9 depending on what correspondence came in and his
10 revisiting of the issues, he might have decided to
11 disclose other matters. I don't know. So we were both
12 involved in the disclosure issue.
13 Q. Well, when you had handed the disclosure issue on to him
14 at some stage after committal, did you discuss matters
15 of disclosure with Mr Burnside at all?
16 A. I have no recollection of it.
17 Q. In a murder trial, a major trial, would you expect to
18 deal with matters of disclosure with Mr Burnside?
19 A. I wouldn't expect to. He would be dealing with the
20 issues. If he had a query, if he wanted some
21 assistance, he might have come to me, but ordinarily
22 that didn't happen.
23 Q. We know that Mr Burnside initially did not wish to
24 disclose Tracey Clarke's statement. Did he discuss that
25 with you?
48
1 A. I can't recall.
2 Q. But that would be a matter that you might have expected
3 him, or certainly it wouldn't be unusual for him, to
4 come to you and ask for your advice on. Isn't that
5 right?
6 A. I would doubt it really. He might have. I mean, on
7 a sensitive issue like that he is more likely to have
8 gone to someone more senior than he or I, and we were
9 the same grade at that stage.
10 Q. You have simply no record or recollection of him
11 discussing any of these disclosure issues with you. Is
12 that the truth?
13 A. That is the truth.
14 MR GREEN: Thank you.
15 Questions from MR O'CONNOR
16 MR O'CONNOR: Mr Davison, I represent DI Irwin. If we could
17 have [81402] on the screen, please, and have
18 paragraph 16 highlighted. This is your statement and
19 I just wanted to ask you -- I want to put this
20 paragraph to you and ask you: do you stand by that
21 paragraph today?
22 I am going to briefly read it out to you:
23 "I cannot recall what my view was in terms of
24 difficulties in getting witnesses to cooperate. I would
25 certainly have respected Detective Inspector Irwin's
49
1 view. He was someone with whom I have had dealings over
2 many years. He was a very conscientious, very
3 hardworking, capable police officer. I would have
4 certainly valued his view and relied upon it."
5 Do you still stand by that today?
6 A. Yes.
7 MR O'CONNOR: Thank you.
8 THE CHAIRMAN: We will take a break now. Fifteen minutes.
9 (11.20 am)
10 (A short break)
11 (11.35 am)
12 THE CHAIRMAN: Yes, Mr McComb?
13 MR McCOMB: I just have a couple of questions for the
14 witness, sir.
15 THE CHAIRMAN: Oh, he is not here yet.
16 Questions from MR McCOMB
17 MR McCOMB: Mr Davison, my name is McComb. I appear for
18 a number of the people who were charged with the murder
19 apart from Marc Hobson. Just a couple of questions
20 about the consultation you had with Mr Kerr and
21 Tracey Clarke.
22 Would it be fair to say the main point of that
23 consultation was that there were concerns in your
24 department about the attitude of people in Portadown
25 after Drumcree and you were concerned as to whether or
50
1 not these witnesses might still wish to continue to give
2 evidence at the trial of Hobson?
3 A. Yes.
4 Q. The point, really, of the consultation was to ascertain
5 that, rather than going into great detail about the
6 contents of what they had said in their statements?
7 A. Yes, but we also did want to take a view on credibility
8 and ability to give evidence.
9 Q. But in forming that view, you would not have briefed
10 perhaps yourself or Mr Kerr in huge detail about the
11 various statements made by numbers of witnesses and
12 possible conflicts or anything of that sort?
13 A. Well, I think Mr Kerr was briefed with all the witness
14 statements that I would have had --
15 Q. Yes, yes.
16 A. -- so that he could inform himself.
17 Q. I will ask him about that obviously, but may I take it
18 that, during the consultation, you would have taken
19 a note of anything additional which might have come out
20 in addition to what the witnesses had said in their
21 statements, if there was something material had
22 happened?
23 A. Yes, I think I would have.
24 Q. In other words, if there was something which might flesh
25 out the contents in particular of Tracey Clarke's
51
1 statement which she might have added a bit more
2 information, a bit more detail, that is something which
3 you might have taken a short note of?
4 A. I have no recollection, but my general practice is to
5 have pen and paper handy --
6 Q. Indeed.
7 A. -- so that something significant is said, I will take
8 a note of it, and I may well have taken various notes
9 which I then discarded once I made my typed note.
10 Q. Yes, indeed. So may we take it, if you did discard
11 something, it would have been of little significance?
12 A. Just scrappy notes.
13 MR McCOMB: Thank you very much.
14 THE CHAIRMAN: Yes, Mr Emmerson?
15 Questions from MR EMMERSON
16 MR EMMERSON: You were asked some questions by Mr Underwood
17 about the position in relation to the witness statement
18 of Tracey Clarke and it was put to you that you didn't
19 disclose Tracey Clarke's witness statement.
20 I just want to be absolutely clear. When you were
21 drafting the direction to prosecute, we know that the
22 direction comes in a number of parts. Part 1 deals with
23 the direction itself -- is that right -- to police?
24 A. Yes.
25 Q. And part 2 is a direction as to the assembly of material
52
1 for the purposes of committal and trial. Is that right?
2 A. Yes, and it is a note really to our admin staff.
3 Q. Yes. It will generally include a draft letter to the
4 defence solicitor to be handed over at committal which
5 will set out the principal evidence that is being
6 disclosed both as evidence relied upon and as unused
7 material?
8 A. The document and bundle that they get at committal won't
9 refer to the evidence, because that's in the PE papers.
10 Q. Very well.
11 A. It really only relates to the disclosure.
12 Q. But it will list all of the material at that stage which
13 is to be disclosed to the defence?
14 A. Yes.
15 Q. Very well. We know from the records -- and we don't
16 need to turn them up -- that document was signed off by
17 you on 20th January. Of course, at that stage, the
18 neglect/Atkinson file had not been received. Correct?
19 A. That's my understanding.
20 Q. Amongst the material in the collection of papers that
21 were then drafted with directions parts 1 and 2, will
22 that often include instructions to counsel?
23 A. Sometimes it does, yes. There will be a separate note
24 highlighting issues that we want counsel to be aware of
25 or to take decisions on.
53
1 Q. Yes. Now, again, if there are issues about disclosure,
2 will they be raised in that set of instructions to
3 counsel?
4 A. If there are issues we want counsel to be made aware of,
5 yes.
6 Q. I mean, we have available to us -- and I don't call it
7 up at this stage -- a set of instructions to counsel
8 that were issued together with directions parts 1 and 2,
9 which list the statements of Witnesses A and B, ie
10 Tracey Clarke and Timothy Jameson, under the heading of,
11 "Evidence and information in respect of which there is
12 or may be no duty of disclosure and on which counsel is
13 asked to advise".
14 Presumably that's a document that you would have
15 drafted?
16 A. I think so, yes.
17 Q. So it would follow then, would it, that at the time of
18 you handing the file over and having issued the
19 direction for the matter to move to committal, you were
20 alive to the fact that the statement of Tracey Clarke
21 was one of the issues that would have to be considered
22 as to whether or not it ought to be disclosed and on
23 which you were seeking the advice of counsel?
24 A. Yes.
25 Q. Thank you. Can I call up, please, page [18277]? This
54
1 is a letter from Mr Monteith of 23rd September 1998, so
2 after the file had been passed to, and was being handled
3 by, the Belfast Crown Court section.
4 We can see, first of all, in paragraph 1 that
5 Mr Monteith refers to maps that were referred to both
6 during and after caution interviews with your witnesses,
7 Reserve Constable Atkinson and Constable Neill. He
8 asked that those maps be made available together with
9 any such maps from witnesses not to be called, such as
10 Reserve Constable Cornett and P40.
11 Now, from that, and given that he is asking for maps
12 that were referred to during those interviews, would you
13 agree it's a reasonable inference that the interviews
14 themselves in which those maps had been referred to must
15 have been disclosed?
16 A. Well, yes. I imagine if Mr Monteith is writing this, he
17 is saying, "I have the after caution interviews of
18 Atkinson and Neill and I don't have the maps that are
19 referred to therein, and I'd like those maps, please".
20 Q. Then if we look at paragraph 3, he asks for confirmation
21 of the decision of the DPP concerning whether or not any
22 police officer, and in particular Neill, Atkinson,
23 P40 and Cornett, are to be prosecuted for any offence.
24 He notes that they have been interviewed under caution
25 in September 1997 for offences including criminal
55
1 neglect on duty, assisting offenders and withholding
2 information about an arrestable offence.
3 Do you see that?
4 A. Yes.
5 Q. He is asking for information then as to what the outcome
6 of the DPP's consideration was. We don't need with you
7 to look at the response to that, although, for
8 completeness, the response was and inevitably would have
9 been that the matter was still, at that stage, under
10 consideration, a decision having been taken that final
11 directions on the neglect/Atkinson file would pend
12 consideration of the outcome of the Hobson prosecution.
13 But, on the face of it, certainly the September
14 interviews of the officers were being referred to. Of
15 course, we know that it was only in relation to
16 Mr Atkinson that the cautions included offences of
17 assisting an offender and withholding information.
18 You have been shown the letter that you wrote
19 pre-committal, which, just to put it in its
20 chronological sequence, would have come obviously after
21 you had settled the directions and the initial
22 disclosure to the defence. Correct?
23 A. Yes.
24 Q. Before you had handed the case over to the Belfast
25 Crown Court section, when you were indicating that you
56
1 had by then received the Complaints and Discipline file
2 and were promising disclosure from it?
3 A. (Witness nods).
4 Q. Does this help you as to whether you would have
5 disclosed those interviews before you handed the case
6 over to Mr Burnside at the Belfast Crown Court
7 section or not?
8 A. I think paragraphs 1 and 3 suggest that I did, in fact,
9 do the disclosure that I had indicated to Mr Monteith
10 that I was going to do.
11 Q. All right. Pause there. It is clear, because he is
12 specifically asking about the September round of
13 interviews, and we know that Mr Atkinson was interviewed
14 both in September and in October: in September about
15 primarily the neglect of duty allegation with a very
16 short reference to contact with Hanvey and telephone
17 records at the end; but then again in October in more
18 detail about the specific allegation against him, that
19 he had been involved in tipping off one of the suspects.
20 Now, you have told us that that was something that
21 you would have regarded as disclosable. Is that right?
22 A. Yes.
23 Q. Would you have, therefore, disclosed the October
24 interview as well as the September interview?
25 A. Well, again I can't recall, but I imagine I would have,
57
1 yes.
2 Q. Can you think of any reason why you wouldn't have?
3 A. I can't think of any.
4 Q. Thank you.
5 Can I ask you, please, just to be shown
6 page [81412]? This is an extract from the Inquiry
7 statement of Mr Kerr. I am now turning to ask you some
8 questions about the consultation with Tracey Clarke on
9 17th October 1997 and your recollection of it.
10 Now, from what you have told the Inquiry, your
11 recollection of the consultation is that Tracey Clarke's
12 given reason for refusing to testify was her love of
13 Hanvey and loyalty to the others. Correct?
14 A. Yes.
15 Q. And that if and insofar as issues of fear were raised,
16 they may have been raised, you thought, in
17 a post-consultation conversation by her parents. Is
18 that right?
19 A. When you say "post-consultation", I mean towards the end
20 of the consultation, you know, the consultation with
21 Clarke or minutes after it, yes.
22 Q. I think in answer to one of the questions put to you you
23 said from the reasons she was giving it was clear to you
24 she wouldn't be signing off a witness statement
25 personally asserting that fear was her reason.
58
1 A. That's right.
2 Q. Could you just look at paragraph 11? I just want to
3 check whether you would agree with Mr Kerr's
4 recollection. He says:
5 "My impression of Witness A was that she did not
6 want to give evidence at all. She denied that it was as
7 a result of fear and maintained that she was in love
8 with one of the potential accused. The witness also
9 considered other people involved with the case as
10 friends. For these reasons, it was evident Witness A
11 was unwilling to give evidence. My recollection is that
12 Witness A's parents were supportive of her."
13 Is that a note with which you would agree?
14 A. What is this document, sorry?
15 Q. This is Mr Kerr's witness statement for these
16 proceedings.
17 A. Oh, right. Well, I can't recall her denying that she
18 was in fear, but I can't think of anything that would
19 contradict paragraph 11.
20 Q. Thank you. Can I ask you, please, to be shown [17634],
21 which is rather closer in time? This is Mr Kerr's
22 written opinion based on the consultation, dealing with
23 other matters as well. He deals there in paragraph (b)
24 with the consultation with Tracey Clarke. If I can just
25 pick it up, please, four lines down:
59
1 "I would have been content to give full weight to
2 her evidence, in my opinion. It was clear that she may
3 be a reluctant witness and I explored this with her
4 first of all and then discussed it with her parents and
5 the police. She stated that she did not want to give
6 evidence. She further stated that the reason she did
7 not want to give evidence against Hanvey was that she
8 still loved him and that, as against the others, they
9 were her friends. She realised the importance of the
10 matter but it was quite clear that she would not give
11 evidence.
12 "Were there evidence upon which it would have been
13 proper to make an application under Article 3 ...
14 I would advise so doing. The position, however, was
15 that it was only her parents who said anything which
16 would have laid the grounds for this. On the basis of
17 her declared reason for not wishing to give evidence, no
18 application could legitimately have been made."
19 Again, does that accord with your recollection of
20 the consultation?
21 A. Yes, that's consistent with it.
22 Q. Finally, can we go to [81405]? It is paragraph 28 of
23 your witness statement. I just want to clarify one
24 matter. It is a minor matter of detail, but you say
25 here:
60
1 "As a result of these consultations the decision was
2 made not to call Tracey Clarke, Timothy Jameson and
3 Jonathan Wright to give evidence at the trial of
4 Marc Hobson."
5 It is just in relation to the suggestion that the
6 decision was made not to call Jonathan Wright as
7 a result of those consultations, that's to say the first
8 round of consultations in October.
9 I want to suggest to you the consultation with
10 Jonathan Wright resulted in a decision that he was to be
11 treated as a reliable witness and given full weight and
12 effect as a witness to give evidence at trial, and at
13 that stage, following those consultations, all further
14 analysis proceeded on the basis that he would be willing
15 to give evidence and would do so, and that it wasn't
16 indeed until 13th March 1998 that Jonathan Wright made
17 a retraction statement?
18 A. When did I say paragraph 28?
19 Q. When did you say it?
20 A. Sorry. Is this in my document?
21 Q. This is your statement.
22 A. That I made to the Tribunal?
23 Q. The Tribunal. The sole point -- it is a relatively
24 small one -- it is just wrong, I think, what's recorded
25 there.
61
1 A. Yes, I think that's accurate. I think I shouldn't have
2 put Jonathan Wright in.
3 MR EMMERSON: Yes. Thank you.
4 THE CHAIRMAN: The decision about him came when he withdrew
5 his statement. Is that right?
6 A. That's right.
7 MR UNDERWOOD: There is nothing arising. Thank you.
8 THE CHAIRMAN: Thank you, Mr Davison.
9 MR UNDERWOOD: Thank you, Mr Davison. I think that does
10 conclude your evidence.
11 A. Thank you very much.
12 (The witness withdrew)
13 MR UNDERWOOD: May I have Mr Kerr now, please?
14 Mr Kerr has a pressing need to get away by
15 lunchtime, if possible.
16 THE CHAIRMAN: Very well.
17 Mr Kerr is already sworn, isn't he?
18 MR EMMERSON: He is.
19 MR GORDON KERR (recalled)
20 Questions from MR UNDERWOOD
21 MR UNDERWOOD: Good morning, Mr Kerr. You are still on
22 oath. We have already identified your statement.
23 Perhaps we can get it up on screen at page [81410].
24 I just want you to familiarise yourself with a sequence
25 of events.
62
1 If we look at paragraph 2, you tell us:
2 "I was instructed by the Director of Public
3 Prosecutions in relation to the death of Robert Hamill.
4 Responsibility for directing the prosecution of cases
5 lay with the DPP. Between 1997 and 2002, if the DPP
6 instructed counsel, the complete police file was usually
7 forwarded to counsel."
8 If we go over the page, [81411], at paragraph 4:
9 "At a later stage", this is later than the murder
10 file, "I was asked to consider a file against the police
11 and to consider their position in relation to any
12 criminal liability, particularly in relation to the
13 offence of unlawful neglect of duty. This related to
14 the four police officers in the Land Rover."
15 So do we get from that the sequence of events is you
16 are instructed in the murder, and, at some later
17 point -- it is actually quite difficult to identify
18 when -- you get instructed to advise on the neglect
19 file?
20 A. That's correct.
21 Q. Did anybody ask you in the context of either of those to
22 consult with Reserve Constable Atkinson to test his
23 veracity?
24 A. I don't recall that being the case.
25 Q. Would it have been at all common to consult as counsel
63
1 with a police witness?
2 A. It's very rare in those circumstances.
3 Q. One of the things we are trying to track down from the
4 processes of the DPP and counsel is whether any
5 consideration was given, once the neglect file arrived,
6 to whether that impacted on the decision to use
7 Mr Atkinson as a witness in the murder. Do you follow
8 me?
9 A. I follow what you are saying.
10 Q. Were you conscious of any consideration of that nature?
11 A. I don't recall the time sequence so it is very difficult
12 to be conscious or not whether or not it was a factor,
13 but in terms of calling Mr Atkinson in the main case,
14 the consideration would have been whether he could
15 assist as to the facts from his observations and whether
16 there was any reason to doubt those facts.
17 Q. Because what we know is that the crime file itself had
18 Tracey Clarke's statement in it. In that there was this
19 hearsay allegation that Atkinson had been good to
20 Hanvey, tipped him off to get rid of his clothes and
21 kept him in touch with his investigation.
22 So far as the crime file is concerned, so far as we
23 are aware, that's the only reference in it to any reason
24 to doubt Mr Atkinson.
25 What we know is that, at least some weeks after the
64
1 decision to prosecute and to use Mr Atkinson as
2 a witness, the neglect file turns up, which has in it,
3 amongst other things, the revelation that the telephone
4 records actually support that contention.
5 A. That's correct.
6 Q. Does that help you with the sequence now?
7 A. It reminds me of the sequence concerned, but, as I say,
8 the decision to call him or not in the main trial would
9 depend on the view that was taken of whether he was
10 giving any incredible or uncredible evidence in relation
11 to the facts on the night of the incident.
12 Q. I just want to test this to this degree: were you ever
13 asked to consider whether anything in the neglect file
14 affected any view you might have about whether to call
15 him in the Crown Court?
16 A. I don't recall.
17 Q. Another thing we are having difficulty reconstructing is
18 disclosure. We know that the instructions to counsel in
19 the murder presumably went directly to you -- did
20 they --
21 A. Yes.
22 Q. -- and asked for consideration for to be given to
23 disclosure, amongst other things, of Tracey Clarke's
24 statement? Do you recall advising on disclosure?
25 A. I can recall a number of discussions that took place
65
1 about disclosure but not in relation to particular
2 statements.
3 Q. We have no documents on this and it looks like there was
4 no documentary advice from what we can garner. Is it
5 conceivable you would have advised orally, by phone, in
6 con?
7 A. That would have been the standard. The standard
8 procedure would have been there would have been
9 an officer who was charged from the DPP with directing
10 disclosure and it was only where there was considered to
11 be matters of some dispute that counsel would normally
12 be instructed on the matter.
13 Q. Here I am dealing with the position before committal.
14 A. Before committal, counsel would rarely be instructed on
15 the matter in relation to the disclosure. It would be
16 a decision of the department.
17 Q. We do know from the direction that went to you
18 pre-committal that you were asked to consider
19 disclosure. As I say, what we have is no document
20 dealing with it. I wonder if you can help us about
21 whether, in those circumstances, you would have done it
22 orally?
23 A. Well, if I'd been asked to consider particular
24 statements as part of the instructions, I would have
25 orally dealt with it with the officer in charge of the
66
1 case.
2 Q. Help us on this, if you will. I take it you have no
3 memory of that discussion?
4 A. No.
5 Q. As I say, we know that in the murder file there is the
6 Tracey Clarke statement -- I presume it is in there from
7 what we infer from other documents -- which contains
8 this hearsay allegation.
9 Doing the best you can now, do you regard that as
10 something which would have been disclosable?
11 A. Anything which would affect the credibility of the
12 witness would prima facie be disclosable.
13 Q. Would this be fair, or am I pushing you too hard: you
14 would have advised disclosing that statement?
15 A. I can't recall, so I don't think it is fair to push to
16 that extent, because I just don't remember whether I did
17 or didn't.
18 Q. We then get to a point where, post-committal, there is
19 a discussion we know of about the disclosure of that
20 statement. It is late 1998, early 1999 that
21 Mr Burnside, who is then the disclosure officer, is
22 dealing with that. His evidence is that he is not clear
23 whether he spoke to you or to your junior about this.
24 Do you have a recollection of doing that?
25 A. I have no recollection of whether it was myself or my
67
1 junior who would have spoken to Mr Burnside.
2 However, in fairness to my junior, I would have to
3 say I would think he would probably have spoken to me.
4 Q. We know from Mr Burnside that you were advising at that
5 stage that Tracey Clarke's statement should be
6 disclosed. Again, any memory?
7 A. I have no particular memory of that particular
8 statement. I mean, I do recall a number of
9 consultations and discussions with Mr Burnside about
10 disclosure of statements.
11 Q. Does it surprise you that, when it was disclosed, the
12 reference to Mr Atkinson was taken out of it?
13 A. That would surprise me.
14 MR EMMERSON: I do apologise for interrupting. It might be
15 helpful in that line of questioning for the extract from
16 the statement to be shown to the witness, because there
17 has been some confusion at various stages as to whether
18 it is the allegation which has been redacted, or,
19 rather, the identities of all of those who are named in
20 the witness statement and the reasons for that.
21 MR UNDERWOOD: Let's have a look at [31471]. If we go over
22 the page, [31472], and over the page again, [31473], in
23 the middle you get a reference -- there is a line that
24 starts, "Annoy him". As served, what this says is:
25 "I remember [blank's] name coming up and [blank]
68
1 said that [blank] 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 the previous night.
5 Since then [blank] has contacted me on numerous
6 occasions and he keeps asking me what I have said to the
7 police. He also told me that [blank] was ringing him
8 every day to keep him up-to-date with the police
9 investigations."
10 Do you accept that takes away the references to
11 Mr Atkinson?
12 A. It doesn't take away the references to what was alleged
13 to have happened. I would have thought if it was
14 blanked in that way, there was a particular reason why
15 it was done. Presumably on advice from the police.
16 Q. From police. But it does surprise you, does it?
17 A. What surprises me?
18 Q. The reference to Mr Atkinson's name being taken out?
19 A. Well, it depends on the circumstances that were
20 explained to the department in terms of why the editing
21 was required.
22 When you initially asked the question, I understood
23 you to be suggesting that the whole reference to the
24 incident relating to Mr Atkinson and the allegations had
25 been removed from the statement. That would have
69
1 surprised me.
2 Q. Okay. Do you regard this as an adequate notice to the
3 defence of the allegation against Mr Atkinson?
4 A. Well, one would have to see the totality of the
5 disclosure and see whether the defence were fully aware
6 of the nature of the allegation that it was one of the
7 police officers involved, in which case it would be
8 adequate. If it confused them in the light of the full
9 disclosure that was given, then it wouldn't be.
10 THE CHAIRMAN: Would they need to know which officer?
11 A. Well, it would depend on the circumstances, but
12 obviously, to be of value in cross-examining the
13 officer, yes, they would.
14 THE CHAIRMAN: Otherwise, you may be shooting at the wrong
15 target?
16 A. Indeed.
17 MR UNDERWOOD: Would you regard the fact that police had
18 discovered that Mr Atkinson's telephone records showed
19 a call from his house to the Hanvey house at the time
20 referred to here as disclosable to the defence?
21 A. I think you can take -- you can take the issue of
22 disclosure in this instance I think slightly too far in
23 terms of what is being suggested.
24 The reality -- disclosure to the defence in the case
25 in Hobson depended and was relevant to the extent it
70
1 affected the case or assisted Hobson's case. The fact
2 there may have been a phone call may or may not, in the
3 light of the cross-examination being conducted, have
4 become relevant. One cannot be sure at the beginning.
5 Q. Let's unpick that. The duty to disclose is a continuing
6 one. Yes?
7 A. That's correct.
8 Q. Before you get to trial, you know that the reason you
9 are calling Atkinson is to give some support to
10 Mr Neill's evidence about what he saw and what the
11 officers generally did?
12 A. That's correct.
13 Q. If there is an allegation that, far from Mr Atkinson's
14 evidence about what he saw being true, that he saw
15 something different and had such sympathy with somebody
16 who murdered Mr Hamill that he rang him up to tip him
17 off to tell him to get rid of his clothes, surely that's
18 going to be something which you give to the defence so
19 they can think of a line of cross-examination?
20 A. Ordinarily, yes, that would be the position.
21 Q. Can I go back to your statement, please, page [81416]?
22 In paragraphs 28 and 29 you deal with what you say is
23 a recollection which is vague in relation to the
24 forensics report of the blood spot from Stacey Bridgett
25 on Robert Hamill's jeans. You say:
71
1 "I would be surprised if I did not speak directly to
2 Lawrence Marshall or have the situation clarified for
3 me."
4 A. Yes.
5 Q. I think, to be fair, what happened was you asked for it
6 to be clarified and Mr Davison did it. You go on:
7 "I do not know whether this evidence was ever put to
8 Stacey Bridgett, but I would have expected the police to
9 have questioned him on it."
10 Do I take it from that you would have regarded it as
11 proper for the police to have re-interviewed him?
12 A. Well, it would be a matter the police should have
13 considered and I would have thought it would be a matter
14 of judgment for the police whether it would assist them
15 or not.
16 It would also be a matter, once it was reported, for
17 the PPS, for the directing officer to consider whether
18 there should have been a direction for police to
19 re-interview him on that issue.
20 Again, if I can just complete, that may well depend
21 on the clarification that was given by the forensic
22 officer if it was something that looked like it was
23 worth pursuing evidentially.
24 Q. Thank you.
25 Can we have a look at page [17639], part of your
72
1 advice? It is not dated but that's not a problem. It
2 is an advice in which you deal with Mr Bridgett. Can we
3 pick it up at paragraph 5 to the bottom of the page?
4 A. Yes.
5 Q. Let's deal with it fully:
6 "He was originally referred to by Witness A. This
7 evidence is no longer available. Witness B named him
8 but only as someone injured. In any event, that
9 evidence is again unavailable. [Blank] saw him and
10 Dean Forbes at the back of the Land Rover, page 44, but
11 did not see him do anything. Jonathan Wright, page 65,
12 saw him trading punches with one person. This was a bit
13 to the left of the main fight. Con Neill observed
14 Bridgett face-to-face with a male near the Land Rover.
15 He had a bottle of cider in his hand. Later, after
16 helping taking Lunt to the Land Rover, he saw Bridgett
17 with blood around his mouth."
18 Here is the passage I really want to concentrate on:
19 "Con Silcock was told by a woman that one youth had
20 jumped on the head of one of the injured men. A member
21 of the crowd called to him. He responded to 'Stacey'.
22 He was bleeding from the nose. This is clearly not
23 admissible evidence against him."
24 Why was that clearly not admissible against him?
25 A. Well, I didn't see any basis on which it was admissible
73
1 evidence. It was clearly hearsay. Therefore, it would
2 have to have been an exception to the hearsay rule.
3 The logical one would have been res gestae, and
4 I didn't think it qualified under the res gestae rules.
5 Q. Can we have a look at Mr Silcock's statement?
6 Page [09220]. On this page he starts towards the top,
7 about five lines down on the right-hand side. He says:
8 "I observed two male persons lying on the
9 Church Street bound direction of High Street."
10 He describes them. Then, if we pick it up again
11 just over halfway down in the middle:
12 "I radioed for an ambulance and stayed with these
13 two injured men, along with several women who said they
14 were accompanying the men when the fracas occurred,
15 until the ambulance arrived. A large crowd of youths
16 were in the vicinity of these men. They were aggressive
17 both verbally and physically. On several occasions
18 I pushed youths away from the injured men as they
19 appeared to try and kick the men. One of the rowdy
20 youths was pointed out to me by a woman wearing a white
21 stop, who alleged that this youth", if we go over,
22 [09221], "had jumped on the head of one of the injured
23 men."
24 What was it about that that didn't qualify as
25 res gestae in your view?
74
1 A. With respect, this was an incident that occurred -- we
2 were given advice in relation to the actual murder
3 incident. This was something that appears to have
4 occurred factually after that incident was over.
5 Q. You were satisfied, were you, that there was
6 a sufficient break in time, between Mr Hamill being
7 kicked to death and this incident, that somebody would
8 have had time to concoct this? Is that what you are
9 saying?
10 A. It is not a matter of whether they concocted it. It is
11 a matter of the rule requiring someone reacting, either
12 as, normally, a victim, or as a perpetrator, or as
13 a person reacting in the crowd instantly to something
14 that has occurred and the comment that was made at the
15 time. This didn't seem to qualify.
16 THE CHAIRMAN: You say "instantly". I can't recall the name
17 of the case. The House of Lords dealt with this, didn't
18 they?
19 A. In Andrews, I believe.
20 THE CHAIRMAN: It didn't have to be quite so instant as
21 that.
22 A. Well, it didn't have to be instant in the sense that it
23 entirely corresponded to the actus of the offence
24 itself, but the whole offence had to be continuing and
25 there had to be continued involvement in the offence.
75
1 That seemed to be what was being said in the Lords.
2 This didn't seem to qualify for that.
3 The second part of the statement, of course, was
4 a report of what someone else, who we don't know the
5 circumstances, is meant to have shouted in relation to
6 the incident after a report from someone else
7 afterwards. That person cannot be identified, nor can
8 we say what their relationship was to the events.
9 MR UNDERWOOD: I don't want to take this too far, but two
10 things. Firstly, the fact that you can't identify or
11 call a witness is, of course, natural in most res gestae
12 applications, isn't it?
13 A. Uh-huh.
14 Q. Secondly, surely the whole essence of the res gestae is
15 that the key test is whether the person making the
16 assertion you want to rely on would have or would not
17 have had time to concoct it?
18 A. Well, that's one of the factors that is taken into
19 account, whether or not it could be concocted, and it
20 has to be in a situation where it is suggested it can't
21 be concocted. The fact that that situation exists
22 doesn't mean it is admissible.
23 Q. I am sorry?
24 A. The fact per se doesn't mean it is admissible. It has
25 to be the circumstances in which the person is reporting
76
1 it, and it frankly doesn't mean that in every situation
2 any person who may be at a scene who says something
3 whether they have time to concoct or not is going to be
4 admissible evidence as res gestae.
5 Q. But surely this is a continuing disorder in which the
6 allegation being made is being made in relation to
7 a person who is trying to kick at the person on the
8 ground?
9 A. Yes, but they are not reporting something that happened
10 that appears to have been part of the death sequence.
11 They are reporting something that occurred after that
12 event.
13 Q. Did you feel --
14 A. In general public disorder. That's not the same thing
15 as a res gestae piece of evidence relating to the actual
16 offence which is being considered, which is the murder.
17 THE CHAIRMAN: Would it be relevant to an affray?
18 A. It could be relevant to an affray.
19 MR UNDERWOOD: I want to ask you about that. I think, to be
20 frank, there was a disagreement between you and the DPP,
21 wasn't there, about this?
22 A. Yes.
23 Q. You essentially thought there was enough for affray, at
24 least against a couple of the people who were at the
25 front of the crowd.
77
1 A. I considered that the affray offence had been probably
2 made out in relation to a number of people, yes.
3 MR UNDERWOOD: Who were at the front of the crowd.
4 Thank you very much. That's all I want to ask you.
5 As you know, there may be some more.
6 Questions from MR ADAIR
7 MR ADAIR: I want to ask you about a number of separate
8 issues. They jump around. Unfortunately, they don't
9 follow in any sequence.
10 When you were being asked about disclosure and the
11 redaction of statements from Witness A in this
12 particular instance, I think you said words to the
13 effect that the DPP would take the advice of the police.
14 Is that what you were saying about that?
15 A. Well, if there was a particular reason to exclude
16 a name, that's what I was referring to.
17 Q. Right, but am I right in saying that, very often, the
18 DPP disclosure officer would take that upon himself
19 without seeking the advice of the police if he thought
20 it appropriate to redact a name?
21 A. If it was considered appropriate by the PPS or DPP
22 officer, of course they would, yes.
23 Q. I am just looking at Mr Burnside's evidence. Could we
24 have page [82011]? This is a statement of Mr Burnside,
25 who was the disclosure officer. I think probably, in
78
1 fairness, you should be asked to comment on this.
2 At paragraph 15 he says:
3 "Prior to the two statements being disclosed to
4 Mr Monteith, I would not simply hand over the
5 statements. I would have spoken with counsel and taken
6 advice as to whether portions of statement should be
7 edited out. In relation to these two statements, the
8 information that was removed related to the identities
9 of persons' names in the statements."
10 Can you remember, did Mr Burnside consult with you?
11 A. I don't recall advising that the name of the constable
12 should be removed from the statement.
13 Q. Would it be likely to be you rather than the junior in
14 relation to an issue such as that?
15 A. Well, initially he is likely to have spoken to junior
16 counsel about an issue such as this.
17 As I say, in fairness, depending who your junior
18 counsel is, frequently you would find that junior
19 counsel would speak to you about it, whether or not they
20 made it a major issue or a minor issue or just told you
21 in passing what had happened.
22 Q. So we are all clear, are you saying this was
23 a decision -- do you agree with Mr Burnside that he
24 consulted with you, or was this something he did himself
25 or in consultation with someone else, or can you help us
79
1 with that?
2 A. I wouldn't dispute -- if Mr Burnside had a recollection
3 of speaking with counsel about the matter, I wouldn't
4 dispute that.
5 I personally have no recollection of it being
6 a matter we were consulted about.
7 Q. Okay. I mean, I don't know how relevant this is,
8 frankly. Can you see any problem of actually including
9 the name of Atkinson in this disclosure statement?
10 A. On the face of it, on the face of it in the absence of
11 the normal considerations which would be security or,
12 potentially, if it was felt that it could prejudice the
13 investigation against the officer in some way, those are
14 the standard reasons I would have anticipated his name
15 being removed.
16 Q. Okay. Now, if we could have page 17635, please. This
17 is an opinion that you wrote after the consultations
18 with A and B and Mr -- with the four witnesses
19 essentially including Mr Prunty.
20 A. Yes.
21 Q. Now, if we could highlight the top five or six lines,
22 please. Is that page 17635?
23 A. It is on mine, yes.
24 Q. If we could go to the next page, 17636. Well, it
25 looks like my numbering is different. Can you remember
80
1 from your opinions -- you may have looked at them
2 recently, Mr Kerr -- am I right in saying in
3 consultation with Mr Prunty you found him an impressive
4 and potentially credible witness?
5 A. That's correct.
6 Q. My recollection is that the actual words you used were
7 that he was a "most impressive factual witness". Does
8 that accord with your recollection?
9 A. It does, yes.
10 Q. Now, at that consultation with Prunty, can I ask you:
11 did you take notes or did you leave that to your
12 instructing solicitor and those others present?
13 A. I don't have any notes that I have taken. Invariably,
14 I would tend to, in a case like this, allow the
15 directing officer to take the notes and I would look at
16 them afterwards.
17 Q. If you look at page [42986], this is a record which
18 I think was kept by the solicitor from the office who
19 was in attendance with Mr Prunty.
20 A. Yes.
21 Q. You see there is "GK" and "CP", which is presumably you
22 and Mr Prunty. Just have a -- have you seen that
23 document recently?
24 A. Yes, I noticed it last night when I was looking through
25 the papers.
81
1 Q. Can you help us: does that accord with your recollection
2 of the -- essentially of the consultation that you had
3 with Mr Prunty?
4 A. Well, it's difficult for me to say. Certainly reading
5 it over, I considered that my recollection was that the
6 consultation I had with him was longer, and it touched
7 more things than just, if I can put it, the minutiae of
8 the offence itself.
9 Q. I understand. If you could highlight the bottom half of
10 the page, please, this is at a stage -- and I am asking
11 you again to remember, and perhaps at the end of this
12 I will ask you for your impression -- when you are
13 asking about the police getting out of the Land Rover.
14 You will see, for example, about halfway down, that:
15 "I seen him being hit with a bottle. The bottle was
16 threw at him. D and Robert were about 6 feet apart. D
17 went to the ground. They were still hitting Robert.
18 The police came out at this stage.
19 "GK: Once the attack started, how long before the
20 police came out?
21 "CP: Once Robert was on the ground.
22 "GK: Did they try to get into the middle to break
23 it up?
24 "CP: Yes.
25 "GK: Did it do any good?
82
1 "CP: No. Not enough of them.
2 "GK: How long was it before more police arrived?
3 "CP: About 5 or 10 minutes."
4 Again, I presume you will not remember the precise
5 questions and answers, but is that your memory and your
6 impression of what he was saying to you happened in
7 relation to the police activity once this fight had
8 started?
9 A. That's correct.
10 Q. If we could turn up page [18062], please, this is
11 Mr McCarey, who was your instructing solicitor there at
12 the time -- this is his note of the consultation.
13 Again have you seen this document recently?
14 A. Yes. Again, I noticed it last night.
15 Q. Yes. You will see, if we highlight the paragraph which
16 starts:
17 "Saw Robert getting dragged to the ground. He was
18 trying to protect himself before he went down. D went
19 to help. I watched what happened. I saw 15-20 people
20 around Robert. Could see Robert - not at first but when
21 he was lying on the ground. Anybody who was there,
22 15-20 were booting at him. I didn't know any of them -
23 not even to see. D went to help Robert. Saw him
24 getting hit with a bottle - was thrown at him. D and
25 Robert no more than 6 feet apart. Some of the crowd
83
1 were going over to D. Police then came. Police got out
2 of Land Rover when Robert was on ground. Tried to get
3 in to break it up. No effect -- wasn't enough of them.
4 "5-10 minutes before other police came."
5 Again, does that accord in general terms with your
6 recollection of what Mr Prunty was saying?
7 A. That's correct.
8 Q. In essence, was Mr Prunty saying that the police
9 essentially did everything as effectively and fast as
10 they could in his opinion?
11 A. That's what it appeared to be to me.
12 Q. Well, when you say that's what it appeared to be, that's
13 what he appeared to be saying to you?
14 A. His evidence in summary seemed to be there was
15 an incident commenced and, once it became serious
16 because the deceased went to the ground, the police came
17 and tried to stop it.
18 Q. Now I want to ask you just briefly then about some other
19 discrete issues.
20 In your statement in relation to the blood spot
21 that's found linking Stacey Bridgett with Mr Hamill in
22 your Inquiry statement you said essentially you would
23 have expected police to go back and re-interview him.
24 Now, I think you have probably dealt with this, but
25 you accept that that's a judgment call for the police at
84
1 the time?
2 A. It has to be, yes.
3 Q. Do you agree at that stage what they had, in fact, was
4 a lie?
5 A. That's correct, yes. It suggested his evidence that he
6 was nowhere near the deceased was wrong.
7 Q. It could very well be, if they go back and re-interview
8 him and put that blood to him, the effect of that is for
9 him to make up some story about why that might
10 innocently have come into contact with Mr Hamill?
11 A. That could be one of the effects, yes.
12 Q. It is a judgment call as to whether to do it or not?
13 A. Indeed.
14 Q. Just to confirm, I think we have all -- I think the
15 Panel know, but under PACE at that time, it was only in
16 exceptional circumstances that the police went back and
17 re-interviewed somebody after they had been charged?
18 A. That's correct.
19 Q. Neither you nor the DPP directed or suggested or advised
20 at any stage that he should be re-interviewed?
21 A. No, because there didn't appear to be any further
22 progress in speaking to the forensic scientist, so there
23 was nowhere further to take it.
24 Q. Do you agree with me the other problem the police would
25 have had back on 12th May when they got the information
85
1 about the blood spot, at that stage they were not aware
2 of the precise nature of the blood spot, whether it was
3 a teardrop, whether it was a smear, etc?
4 A. I don't have the exact timings, Mr Adair, but I do
5 recall that we had preliminary notice from the forensic
6 scientist that there was a mark and it was only at
7 a later stage that that was developed into a description
8 of the mark and what it might mean.
9 Q. Yes. Now, I want to ask you something about this issue
10 of the taking of a witness statement from Andrea McKee.
11 Are you aware of the essential facts concerning
12 that?
13 A. Well, as you know, someone else advised on that case,
14 but I was aware of the general background to the case,
15 yes.
16 Q. I just want to ask you what your experience is in
17 relation to, first of all, the police duties and the
18 potential for cross-examination if the police don't do
19 certain things.
20 Now, to summarise in this case, the police knew that
21 Andrea McKee had been down at the police station with
22 Tracey Clarke when Tracey told them about the tip-off
23 allegation. So they regarded her as a credible witness
24 at that stage, as a reliable type of person. Then,
25 whenever Atkinson makes the story about the phone call,
86
1 he arranges for a number of people to make witness
2 statements, including Andrea McKee. Are you with me?
3 A. Yes.
4 Q. The police essentially know that, when they are going to
5 take this statement from Andrea McKee, if she says in it
6 something to back up Atkinson, it's a lie, just to put
7 it in bald terms.
8 THE CHAIRMAN: I'm not sure if Mr Irwin went quite as far as
9 that. There seems no doubt that McBurney did.
10 MR ADAIR: I am putting it at its worst scenario.
11 Certainly pretty much they believed that
12 Andrea McKee had come down and was a responsible person
13 and so on and so forth. The taking of this statement at
14 that stage would probably be an untruthful one if she
15 backed up the alibi.
16 Are you with me?
17 A. Yes.
18 Q. Now, if the police are given an alibi by a suspect and
19 given a name of a person who can back up that alibi --
20 A. Yes.
21 Q. -- at that time, in 1997, was there an obligation or not
22 on the police to take a statement from that person?
23 A. There was an an obligation on the police to pursue any
24 evidence which either assisted the defence or assisted
25 the case against the defendant, and, therefore,
87
1 basically there was an obligation on them to pursue such
2 matters.
3 Q. So say, for example, they hadn't gone and taken this.
4 Say they were told by Atkinson, "Andrea McKee can make
5 a witness statement backing up my story", and they
6 refused to take it, can you see the potential for
7 defence counsel, in cross-examining witnesses, if they
8 have not taken the statement?
9 A. Oh, certainly. Absolutely. Certainly.
10 Q. Which could cause problems for the case?
11 A. Indeed.
12 Q. I think the one difficult area, I am going to suggest to
13 you, is whether -- it is not whether they should take
14 the statement, but whether, when she starts to give what
15 they believe is the false story, they should in some way
16 at that stage say, "Now, listen. Hold on. Before you
17 continue with this, we are aware, for example, that you
18 came down and were present when Tracey Clarke gave us
19 this story and so on", but should they stop at that
20 stage and say, "Hold on a minute here", remind them of
21 the declaration at the top?
22 A. I think they have to be clear the extent to which they
23 feel they can establish that it is a lying statement.
24 Ordinarily, I would have thought the best way, once the
25 statement is commenced, is to allow her to complete her
88
1 statement and then take time to consider whether or not
2 it required further action.
3 Q. What about this scenario where, say, they are aware
4 before she starts to make this statement it is going to
5 be we will call it an alibi statement which they
6 suspect/believe is not the truth.
7 Do you think at that stage they should say, "Now,
8 before you make this, just be very careful"?
9 A. Well, no, I don't think it is likely that you would tell
10 her before she makes the statement. There may be
11 an issue once she starts to make a clearly lying
12 statement that, at that stage, you might have to caution
13 her.
14 THE CHAIRMAN: Well, Mr Irwin told us he reminded her of the
15 declaration before the taking of the statement began.
16 A. Well, that would be entirely proper. That wouldn't be
17 the content of the statement. It would be a declaration
18 as to its truth and that would be entirely proper.
19 MR ADAIR: Of course, Mr Kerr, do you agree with me that you
20 and I -- well, you know through your experience over --
21 is it 30 years?
22 A. About. One less than you, Mr Adair.
23 Q. You know that prosecutors, and I don't say this --
24 prosecutors very often rub their hands with glee when
25 they see an alibi witness in a case. Isn't that right?
89
1 A. That's correct.
2 Q. Because one of the ways, especially in a conspiracy-type
3 situation, one of the best ways to break the conspiracy
4 theory is to break the alibi witness?
5 A. That's correct.
6 Q. It can very often, am I right in saying, in your
7 experience, be hard to break the initial conspiracy
8 unless you have something else, some other ancillary
9 avenue to break into it?
10 A. That's correct.
11 Q. Tactically, that would be a perfectly sound road to go
12 down?
13 A. Oh, indeed, yes.
14 Q. Now, can you help us in relation to your thoughts when
15 you got the police file and were asked to advise in
16 relation to the various issues? Did it ever occur to
17 you that the police had not carried out identification
18 parades or confrontations where they should have in this
19 case?
20 A. No. It seemed to me that the police had been very, very
21 active in pursuing the case as far as they could.
22 Q. If we could turn up page [81412], please, and highlight
23 the top paragraph, please, which is the second part of
24 paragraph 8, this is your Inquiry statement --
25 A. Yes.
90
1 Q. -- where you say:
2 "Frequently in a case of in this nature the head of
3 the local crime squad would be in attendance at
4 a consultation. I recall that the police were very
5 anxious to get evidence to the court in this case and
6 the presence of Mr Cooke was partly an indication of how
7 seriously they were treating the matter."
8 So can you confirm that your impression was that the
9 investigating police in this case gave you the clear
10 view and impression that they wanted to get these people
11 into court?
12 A. That's correct.
13 Q. Was there anything in the investigation file or anything
14 that you read that suggested otherwise to you?
15 A. Most definitely not.
16 Q. Finally -- I should have asked you this when I was
17 asking you about Mr Prunty -- if you were consulting
18 with Jameson --
19 A. Yes.
20 Q. -- he essentially indicated to you that the police had
21 put words into his mouth. Did anybody in the room
22 believe him?
23 A. No.
24 MR ADAIR: Yes. Thank you.
25 THE CHAIRMAN: Just coming back to the alibi statement?
91
1 A. Yes.
2 THE CHAIRMAN: You said it was perfectly proper to take the
3 statement, especially so as her attention was drawn to
4 the declaration?
5 A. That's right.
6 THE CHAIRMAN: The real issue as to propriety comes in what
7 use you make of the statement thereafter?
8 A. That's correct.
9 Questions from MR McGRORY
10 MR McGRORY: If I may just pick up on that issue where
11 Mr Adair had conveniently left off, Mr Kerr, and which
12 the Chairman has asked you about, and that is: the
13 taking of the statement from Andrea McKee is one thing,
14 but if you have reason to believe that it's a false
15 alibi statement, then that is another thing altogether
16 in terms of what you do next.
17 A. Well, I mean, one would have thought, once one takes it,
18 then it's a matter of reporting it to your authorities
19 for directions as to further investigation and/or to the
20 DPP.
21 Q. Of course, you know now that the policeman who took the
22 statement had a reason to disbelieve it as he was taking
23 it, because he had a previous encounter with this
24 witness during which he accompanied Tracey Clarke to the
25 police station when the information was given about
92
1 Atkinson in the first place?
2 A. Well, I mean, I am not fully aware of who the officer
3 who took the statement was, and I am not aware of
4 whether or not he was present and observed her in the
5 police station.
6 Q. You see, that, I am going to suggest to you, is
7 something of significance, because nowhere in the
8 neglect file is it, in fact, declared when Mr McBurney
9 comes to the opinion that this conspiracy investigation
10 can't be taken any further that, in fact, the policeman
11 who took this statement was not only sceptical but
12 disbelieved her, because he had met her previously?
13 A. Well, I am not in a position to recall that, because
14 I have not seen the complaint file in a very long time.
15 Q. Well, would you take it from me that it is not in the
16 complaint file?
17 A. Of course I will accept it from you, Mr McGrory.
18 Q. If, in fact, there is a file which is from the police to
19 the DPP expressing an opinion on whether or not there
20 are sufficient grounds for prosecution, information of
21 that kind ought to be in the file?
22 A. Well, it depends whether the file is a file to consider
23 prosecution of those issues.
24 Q. Yes, which is what it was.
25 A. Well, as I say, I haven't seen the file, but if you are
93
1 sending in a file to consider a prosecution, there is
2 normally a recommendation and it should be a full
3 recommendation.
4 Q. Yes, but leaving aside the recommendation, in terms of
5 the information in the file, all that the file discloses
6 is that, "This officer has been asked about this. He
7 has given an alibi. We can't bottom out the alibi", but
8 what the DPP is not told is that, in fact, the police
9 don't believe the alibi and there is a continuing
10 investigation into it?
11 A. Well, the fact that they don't believe the alibi I don't
12 think is the important thing. The factual circumstances
13 in which the DPP can make an assessment as to whether or
14 not it is credible should be on the file.
15 Q. Yes, and amongst those facts ought to have been the
16 circumstances in which Andrea McKee first became known
17 to the police.
18 A. Well, if there was evidence to show whether the
19 statement was considered to be false, that evidence
20 should be contained in the file going to the PPS.
21 Q. Thank you.
22 Can I turn to a different subject, Mr Kerr, just
23 briefly touching on Timothy Jameson? You mention this
24 in paragraph 16 of your statement. It is [81413], where
25 you say:
94
1 "Witness B's father was present at the
2 consultation."
3 Do you see that?
4 A. Yes.
5 Q. "I recall that he sat with a very long face and looked
6 exceedingly uncomfortable and miserable throughout."
7 Now, what we have been told by other people is that
8 what Timothy Jameson was saying at this consultation is
9 that the police, and in particular Detective Constable
10 Honeyford, had put words in his mouth when he made the
11 original statement.
12 Now, was there any protest from Mr Jameson senior
13 that this had been done to his son?
14 A. I would -- I don't remember exactly. I do remember the
15 father's general discomfort during the consultation, but
16 I don't remember specifically if he protested in
17 relation to that.
18 Q. Then you go on to say:
19 "At the end of the consultation, he said that his
20 son would not be giving evidence."
21 A. Yes.
22 Q. Now, would it have been your impression that the father
23 would have been a fairly dominant figure in the
24 relationship?
25 A. I didn't really see them long enough to decide whether
95
1 there was a dominant relationship between the father and
2 the son. I do recall the father was very definite in
3 his views about what his son would be doing vis-a-vis
4 the case.
5 Q. Yes, indeed. Moving on to the use of or non-use of
6 Article 3 in the context of the evidence of
7 Tracey Clarke --
8 A. Yes.
9 Q. -- there is a slight conflict, Mr Kerr, between your
10 recollection of this consultation and that of Mr Davison
11 possibly and certainly of a policeman called Cooke who
12 was the representative at the consultation of the chief
13 constable.
14 Your recollection is that there was no -- the only
15 reason put forward by Tracey Clarke was her affection
16 for Allister Hanvey in her wish not to give evidence.
17 Isn't that correct?
18 A. That's my recollection.
19 Q. Now, Roger Davison has said that the issue of fear was
20 discussed, mostly by her parents, but she appeared to
21 concur with her parents' view that there was a reason to
22 be afraid.
23 What Mr Cooke has said is that, in his view, she did
24 not want to give evidence and said that she was too
25 frightened to do so. This is what he told the Inquiry
96
1 in his statement, so that takes it a little step further
2 again.
3 So there is an issue before the Inquiry as to
4 whether or not there were really two reasons, perhaps of
5 equal weight, and whether or not in such circumstances
6 they could have been separated and an application for
7 Article 3 could have been made on the basis of the
8 expressions of fear which those two witnesses recollect
9 having been made.
10 A. Well, if I can -- as best I can recollect, I have no
11 doubt, I have no doubt there a discussion in relation to
12 whether or not she was in fear, because that's something
13 that would have concerned me, but my clear recollection
14 is the witness suggested that the reason for not giving
15 evidence was not related to fear. Whether she felt fear
16 or not and whether she said she may feel fear to other
17 persons is a different matter.
18 As far as I was concerned, she made it absolutely
19 clear to me that it was a relationship was the reason
20 she would not give evidence.
21 Q. Do you think you asked her if there was a degree of
22 fear?
23 A. I am confident that I would have asked her if part of
24 the reason for her not giving evidence was her fear and
25 that she may have said that she had some general fears,
97
1 but in this case the reason for not giving evidence was
2 her relationship.
3 Q. Very well. Moving on, finally, just to the issue of
4 Reserve Constable Atkinson and the extent to which the
5 allegation made by Tracey Clarke about him should have
6 been disclosed in the context of the eventual murder
7 trial which you prosecuted against Marc Hobson, it was
8 a fact, Mr Kerr, that an allegation had been made by
9 Tracey Clarke that Reserve Constable Atkinson and
10 Allister Hanvey had been involved in a conspiracy to
11 pervert the course of justice.
12 Isn't that the effect really of what she had said
13 about the phone calls?
14 A. Well, that was the implication from what she was saying
15 in relation to the phone calls.
16 Q. Indeed, a number of witnesses have remarked about,
17 "Well, it was really a hearsay allegation", but, in
18 fact, what Tracey Clarke was telling the police was
19 evidence of a confession by Hanvey in a conspiracy with
20 the policeman?
21 A. I am not sure I follow that.
22 Q. What Hanvey told Tracey Clarke was that he was receiving
23 information from the policeman on how to burn his
24 clothes or how to destroy his clothes and that he was
25 being kept abreast of developments.
98
1 Now that, I would suggest, is evidence of Hanvey's
2 involvement in a criminal offence further to the murder.
3 A. Well, his admission would be if he said that he did so
4 as a result of it. If he was given that advice, but did
5 not agree with it or did not act on it, then it wouldn't
6 be a confession to anything.
7 Q. But at the very least, there are significant grounds for
8 believing prima facie that a policeman was involved in
9 a criminal offence with Mr Hanvey?
10 A. There was a statement from a person which would lead to
11 a suspicion that that was occurring, which should be
12 investigated, yes.
13 Q. Then it is a fact -- whether you knew it or not is
14 something we will come to in a moment -- that telephone
15 records were turned up which at least supported the
16 allegation, in that they were evidence of contact
17 between the two households in the immediate aftermath of
18 the incident?
19 A. Well, my recollection is that there was evidence of
20 telephone contact. There was also evidence to suggest
21 that telephone contact was not unusual between those
22 numbers and there was also, as I understand it,
23 statements suggesting what the contact was and who was
24 involved in the contacts, which were apparently
25 explanations for that.
99
1 Q. Yes. Of course, we now know -- we now know -- that in
2 terms of the explanation for the phone calls the police
3 never actually accepted those explanations for the
4 reasons we have discussed?
5 A. Well, that may or may not be the case, but my
6 recollection is the information I would have had at that
7 time was there were explanations for them and there was
8 nothing on the face of the papers that could establish
9 beyond a reasonable doubt that those explanations were
10 not correct.
11 Q. But then the decision is taken by the DPP, by
12 Mr Davison, to use Mr Atkinson as a prosecution witness
13 in the conduct of the murder trial against Mr Hobson.
14 A. That's correct, and in relation to the background facts
15 as he observed them in the evening.
16 Q. Yes, and indeed, whilst it was Constable Neill who gives
17 the evidence of -- the observation of Hobson attempting
18 to kick or being involved in kicking Robert Hamill,
19 Reserve Constable Atkinson was a witness of still some
20 importance in the conduct of that murder trial. Isn't
21 that right?
22 A. Well, he was of relevance, otherwise he wouldn't have
23 been called.
24 Q. Yes, indeed. In fact, without him, Constable Neill's
25 evidence would have been the only police evidence of the
100
1 affray and of the events surrounding the kicking of
2 Robert Hamill, really. Isn't that correct?
3 A. That's correct but, as you know, that wouldn't
4 necessarily have been unusual.
5 Q. No, but certainly it was highly desirable, from
6 a prosecutorial point of view, to have another policeman
7 support the evidence of Constable Neill?
8 A. That's correct.
9 Q. Particularly in this case, because there were
10 allegations abounding that the police may not have been
11 in a position to observe what had happened?
12 A. That's correct.
13 Q. So, therefore, without Reserve Constable Atkinson's
14 evidence, it would have been the prosecution view that
15 the prosecution for murder of Hobson was at risk?
16 A. I wouldn't put it like that, no.
17 Q. No?
18 A. I would simply say that Reserve Constable Atkinson was
19 one of the officers who assisted in establishing that
20 Constable Neill was in a position to see what he said he
21 saw.
22 Q. Okay. Well, coming then to the run-up to the trial and
23 the decision whether or not to disclose the fact that
24 Reserve Constable Atkinson had also been a suspect for
25 significant criminal offences in the context of this
101
1 event, that is something you have agreed, I think, which
2 is prima facie disclosable.
3 A. It certainly can be disclosable if the general
4 credibility of the witness on the evidence he is giving
5 is at issue.
6 Q. Of course, the fact that that police officer, Reserve
7 Constable Atkinson -- that there was information which
8 might suggest that he was involved in criminal activity
9 himself could damage his evidence?
10 A. It could damage his evidence, yes.
11 Q. So, therefore, it is something that ought to be
12 disclosed?
13 A. It is something that should be disclosed and, as
14 I understand it, the fact that there was such alleged
15 behaviour was disclosed.
16 Q. Well, I am coming to that now. If we look again just at
17 the statement which Mr Underwood showed you as it was
18 disclosed of Witness A, it begins at [31471]. Can we
19 just have the first page up?
20 Now, pretty much all the names on that first page of
21 people are redacted.
22 A. That's correct.
23 Q. Then, as we scroll forward to page [31473], we have the
24 relevant passage. Now we have here:
25 "I remember [blank's] name coming up and [blank]
102
1 said that [blank] had been very good to him, because, on
2 the Sunday morning after the incident ..."
3 Now, that does not disclose either that it was
4 Hanvey who received the information or that it was
5 Atkinson who gave it to him?
6 A. On the face of it, no, it doesn't.
7 Q. Well, it just doesn't, Mr Kerr. The reader of this
8 statement has to have powers, I suggest, not of
9 deduction, but of clairvoyance to actually realise that
10 a prosecution witness in the case is the person who was
11 alleged to have given this information to another
12 suspect.
13 A. Well, I would need to see the full disclosure pack in
14 order to answer that question to see what was disclosed
15 along with it.
16 Q. I am afraid this is all we have. You see, there was
17 quite an exchange between you and Mr Burnside. I need
18 to come to this, because the reason why I am asking
19 these questions is that we need to get to the bottom of
20 who made these redactions and why.
21 So what Mr Burnside has said -- and we only got this
22 information yesterday, Mr Kerr -- is that he had
23 resisted disclosing Tracey Clarke's statement in any way
24 whatsoever right up to just before the trial started,
25 because he described how he was in a sort of a jousting
103
1 match with Richard Monteith as to what he should be told
2 and not be told and the sort of rug was pulled from
3 under him by Crown counsel at a disclosure hearing or
4 pre-trial hearing just before Christmas 1998, a matter
5 of weeks before the trial started in 1999, in that,
6 unbeknownst to him, Crown counsel -- and we don't know
7 whether it was you or your junior -- accepted to
8 Lord Justice McCollum that the statements of A and B
9 should now be disclosed, and that he approached you in
10 January of 1999 and said, "What's this about disclosing
11 these statements?"
12 There was some sort of discussion about it. There
13 may have been a disagreement between you and him about
14 it, but he concurred with the decision or the -- well,
15 he had to really, because the court had been informed
16 that the statement would be disclosed. Then he went off
17 and disclosed it in the format that you have been shown.
18 Now, what I would like to ask you is: did you make
19 the redactions or did he?
20 A. Well, I can only answer it by saying I doubt very much
21 if I made redactions to the statement. It wasn't the
22 job of senior Crown counsel to do so, but in light of
23 the history that you have told me, which is not
24 something that I can recall specifically in this
25 instance, if I had -- if it had been me who had
104
1 undertaken to Lord Justice McCollum, who was the trial
2 judge, that a statement would be served but redacted,
3 then Lord Justice McCollum would also have been told of
4 the nature of the redactions.
5 Q. Have you any recollection as to whether or not that was
6 so?
7 A. Well, I have told you, and I have already said in
8 evidence that I don't specifically remember whether or
9 not I was consulted directly about this. I am sure that
10 it was mentioned to me if my junior was asked or I was
11 asked directly. Certainly there would have been
12 a reference to the service of the statement.
13 As to the format of the statement, I can't recall,
14 but I do know that if the reason for it being disclosed
15 was an undertaking to Lord Justice McCollum,
16 Lord Justice McCollum would have been told of the nature
17 of the redactions to be made.
18 Q. That's something about which maybe further enquiry can
19 be made. You see, it has been suggested, "Look, the
20 Complaints and Discipline interviews were disclosed at
21 some point". Now, the evidence would suggest, if they
22 were disclosed, it would have been around the time of
23 the committal back in April, the previous April.
24 I think the suggestion is that, "Look, the defence
25 are aware of the situation concerning Reserve Constable
105
1 Atkinson", but do you accept that, reading this redacted
2 statement, the reader couldn't possibly make the link
3 between Reserve Constable Atkinson and this allegation,
4 because no names are disclosed?
5 A. Well, I would have to say, Mr McGrory, that, again,
6 I have to go back to, initially, as I said, disclosure
7 has to be seen in its totality. If matters have been
8 disclosed that make it clear to the defence who the
9 identity of the person may be, then the disclosure is
10 adequate on this statement.
11 If, however, there was no information to assist
12 them, then I accept that this would not identify the
13 party for them, but you need to know the full extent of
14 the disclosure before you can assess the statement.
15 Q. You see, the evidence would suggest that this is all the
16 defence got in January 1999, this statement?
17 A. Well, you would have to remind me of the various dates
18 of disclosures returned for trial, etc.
19 As I say, the reality is, if your question is, "If
20 the only thing the defence saw or were aware of was this
21 statement, would it identify the person concerned?", the
22 answer is clearly no, but I doubt very much this is the
23 only information that the defence had.
24 Q. This raises the question as to why on earth the name of
25 Atkinson needed to be redacted unless the prosecution
106
1 didn't want the defence to know that this prosecution
2 witness was the person who had been alleged to have done
3 this?
4 A. Well, I mean, I don't accept that that's the only answer
5 or suggestion that can be made from this. As I say, you
6 cannot draw such conclusions without knowing the full
7 extent of the disclosure that was made.
8 Q. Why else would you redact it?
9 A. There may be a number of reasons to redact the
10 statement. As one can see, apart from people who
11 necessarily were aware that they had been charged on the
12 basis of her statement, every person's name is redacted
13 from that statement. There is a list of the potential
14 accused and there was little point in redacting them as
15 they had been arrested at certain stages and interviewed
16 on the basis of her evidence.
17 Q. I have to suggest to you, Mr Kerr, with some caution,
18 that, as senior Crown counsel who had conduct of this
19 murder trial and who had ultimate responsibility for
20 calling Reserve Constable Atkinson, it was part of your
21 duty, as prosecuting counsel, to let defence counsel
22 know the identity of the person in this statement who
23 was alleged to have received -- to have given the
24 information to Hanvey?
25 A. Well, I don't accept that that is the position, because
107
1 I don't know the full extent of the disclosure that was
2 made, and if we are dealing with the statement by
3 itself, it may well be that my understanding was that
4 they had sufficient disclosure to know the name
5 concerned, and, that being the case, then the redacting
6 of the statement in that way would not be something that
7 would have concerned me.
8 THE CHAIRMAN: So in effect, are you saying that, provided
9 the defence knew in some other way who the officer
10 was --
11 A. That's correct.
12 THE CHAIRMAN: -- you could see no objection to the
13 redactions?
14 A. That's correct.
15 THE CHAIRMAN: But they did have to know the name?
16 A. I feel in the circumstances of the case it's proper that
17 they would have known, or should have known, the name.
18 MR McGRORY: Just one final question, Mr Kerr. This is
19 hypothetical, but, had Reserve Constable Atkinson been
20 cross-examined during the trial, say, at some length
21 about what he was alleged to have told Tracey Clarke and
22 had it had an adverse effect on the outcome of the
23 murder case, it would have been a cause of some
24 controversy, would it not?
25 A. Well, you have mentioned a number of hypothetical
108
1 questions, none of which I accept.
2 Q. Do you not accept that if a murder trial had collapsed
3 partly because of alleged corruption of a police officer
4 who could not be believed because of those allegations,
5 that that would have been something which would have
6 been a cause of serious concern at the time?
7 A. Again, those are hypothetical questions.
8 I don't accept -- I think if you look at the
9 judgment of Lord Justice McCollum, it is very hard to
10 envisage that the fact that Mr Atkinson may or may not
11 have done something after the event would have affected
12 the Lord Justice's view of the evidence in the case as
13 to the events of the evening.
14 Q. Well, any case, Mr Kerr?
15 A. Any case can potentially fall for a number of reasons,
16 but there is no suggestion in the judgment of
17 Lord Justice McCollum that would suggest that this issue
18 would have changed his rulings and judgments in relation
19 to the facts on the evening.
20 Q. I am just asking you to make a neutral observation,
21 Mr Kerr, about the conduct of murder trials, that if
22 there had been an allegation made in a public court in
23 a murder case concerning the corruption of one of the
24 police officers who had been called as a Crown witness,
25 that would have been a very controversial thing that
109
1 have occurred?
2 A. Of course it would be controversial if an officer is
3 being accused in those circumstances, and no doubt the
4 judge would deal with it in the appropriate way --
5 Q. Indeed.
6 A. -- but, to suggest that it may have affected the outcome
7 on the facts, I don't think it accurate, looking at the
8 judgment of the Lord Justice.
9 Q. That wasn't my suggestion, but --
10 THE CHAIRMAN: You say there is a distinction to be drawn
11 between a jury trial where you simply get a verdict, and
12 a judge-alone trial, where you get a judgment?
13 A. Indeed.
14 MR McGRORY: Indeed. And, indeed, Lord Justice McCollum did
15 make some observations in his judgment about the conduct
16 of the police and so forth that day?
17 A. He did.
18 Q. Yes, and I have no doubt he would have commented on this
19 had it happened.
20 A. Well, he may have decided to see whether or not he
21 accepted there was anything in it.
22 MR McGRORY: Indeed. Thank you.
23 Questions from MR McCOMB
24 MR McCOMB: I am aware of the time. I am also aware --
25 Mr Kerr, would you prefer that I asked you just a few
110
1 short questions now?
2 THE CHAIRMAN: You want to get away by lunch, if you can?
3 A. That would be ideal.
4 THE CHAIRMAN: We will sit on for a while.
5 MR McCOMB: I will not be long.
6 Yesterday we heard from Mr Kitson. Just in relation
7 to the consultation you had with Tracey Clarke, that
8 came about, it would seem -- and we need not have it up;
9 it was at page [7] of his statement, paragraph 24 --
10 according to the note, Mr Irwin expressed concern that,
11 following Drumcree, the attitude of the Protestant
12 community had hardened and there was a risk that
13 Tracey Clarke and Timothy Jameson may no longer be
14 willing to testify.
15 Following on from that, on 13th October, he says he
16 attended a meeting with Mr Davison and they agreed to
17 send you some papers in the case.
18 May I take it you were not familiar at all with the
19 Hobson case until then or with Tracey Clarke or
20 Timothy Jameson?
21 A. Not familiar until that point.
22 Q. The consultation was then had on the 17th with Tracey
23 and another person.
24 Now, would it be fair to say that the main object of
25 having this meeting was not to enquire into all the
111
1 details of the case or advise them on evidence or
2 anything else, but just to assess the likelihood of
3 these people turning up and continuing to be willing to
4 give evidence?
5 A. To assess them both in terms of their credibility and
6 their likelihood to give evidence.
7 Q. Absolutely, but it wasn't part of your brief, as it
8 were, to go into particular detail?
9 A. Well, ordinarily in such cases, one would test
10 witnesses' recollection of detail but not necessarily by
11 going through every detail.
12 Q. There is again -- you could form, in your experience,
13 and just as an ordinary person, your view of somebody,
14 whether they are decent, honest, etc?
15 A. Indeed.
16 Q. Their accuracy might be a matter for further testing but
17 not in this consultation?
18 A. Indeed.
19 Q. May we just have Tracey Clarke's statement? If we go to
20 [17327], I think that was her witness statement. If we
21 go on to the next page, [17328], I just want to ask you
22 a couple of questions in relation to the statement.
23 Before I do, did you go through the statement with
24 her?
25 A. I don't recall and it wouldn't be my practice ordinarily
112
1 to go line by line through a statement.
2 Q. I am sure, yes. In this case, when did you become --
3 when did she say to you that she just couldn't give
4 evidence, she was not going to give evidence?
5 A. My recollection of the consultations in view of what
6 I had been told was that that was dealt with at the
7 beginning of the consultation, but that's only my
8 recollection, because I believe -- I believe that her
9 sentiments had already been expressed to the police and
10 I would be astounded if the police had not told me at
11 the beginning of the consultation that that was the
12 issue.
13 Q. So again, that underlines, really, that the point of
14 your meeting with her was to see -- is this right --
15 what is her attitude to giving evidence?
16 A. Yes.
17 Q. It may mean that I needn't ask you too many questions
18 then, because it may be more a matter for comment, sir,
19 at the end of the case.
20 You didn't, as you say, take her through line by
21 line. You didn't -- in relation to the names of the
22 people that she mentioned, did you ask her to flesh that
23 out in any way at all?
24 A. I probably -- in view of the fact that she claimed to
25 have a relationship or particular relationship with one
113
1 person, I have no doubt I would have at least tested her
2 connection with the others involved.
3 Q. As we see, there is just a list of names, (1), (2), (3),
4 (4) and (5), which she describes as stamping and
5 kicking.
6 Did you ask for sort of further detail on that, or
7 would it be, in light of her attitude to giving
8 evidence, it wasn't really appropriate or necessary to
9 go any further?
10 A. No, my recollection is that I went through enough detail
11 in the statement to form the opinion that, was she to
12 give evidence, she could give accurate and, I thought,
13 detailed evidence.
14 Q. Did you wish to have perhaps slightly more information
15 in relation to those people whom she lists there as to
16 what they were doing rather than just the rather bald
17 statement in her statement?
18 A. I certainly would have asked her to give me some detail
19 of what was observed in relation to them and what each
20 person was doing.
21 Q. Would you have thought that would have been significant?
22 A. It is always significant.
23 Q. I did ask the last witness, Mr Davison, if there was
24 anything which emerged from the consultation which added
25 to the information already there, and his answer was
114
1 that if there had been anything of significance, he
2 would have done so, and what he did was he would have
3 taken perhaps a number of sheets of paper, written on
4 them, had a look at them afterwards and discard the ones
5 which are not of any importance.
6 A. Uh-huh.
7 Q. Do you agree with me that something like that might be
8 important if there was some further material which would
9 have been given?
10 A. If there was additional material, one would expect
11 a note to be made of it.
12 Q. I would not expect you now to remember anything she said
13 about what one person or another person did, or any
14 detail.
15 A. No. I mean, I can't remember outside her statement and
16 the fact that I believed she, in other ways, despite her
17 attitude, appeared a credible witness had she given
18 evidence. I don't remember any extra detail that was
19 given.
20 Q. If we go to the penultimate sentence in her statement
21 over the page [17329], five lines up:
22 "I spoke to Allister Hanvey yesterday and I asked
23 him what he did to the persons that they attacked in the
24 centre of Portadown who is now dead."
25 Did you ask her about that? Did you tackle her? It
115
1 reads rather strangely, doesn't it, that, if she was
2 giving evidence that she saw something -- can you assist
3 any further about that?
4 A. Well, I don't think it appropriate for me to comment on
5 whether I find that strange or not. I don't think
6 that's appropriate.
7 Q. You did not ask her about that?
8 A. No, I don't recall specifically asking about that point.
9 Q. Just lastly, did you ask her about any further detail
10 about Michelle? I think there was a Michelle Jamieson.
11 A. I have no recollection of asking her about
12 Michelle Jamieson.
13 MR McCOMB: Thank you very much.
14 THE CHAIRMAN: Can you just remind me, Mr Kerr, this was the
15 only time you saw Tracey Clarke?
16 A. That's correct.
17 THE CHAIRMAN: You gave evidence about this when you first
18 gave evidence, now some time ago --
19 A. Indeed.
20 THE CHAIRMAN: -- that you quite deliberately didn't take
21 her through her statement. You encouraged her to give
22 you her account without the aid of the statement and she
23 had not been shown it before --
24 A. No.
25 THE CHAIRMAN: -- so that you could judge how consistently
116
1 she gave an account to you --
2 A. Indeed.
3 THE CHAIRMAN: -- with what was in her statement and you
4 were impressed by that.
5 A. That's correct. My practice would then be, if there was
6 anything in the statement that I then wanted to develop,
7 I would use the statement at that stage, but only after
8 I had given her an opportunity to give me her account.
9 THE CHAIRMAN: Thank you.
10 MS DINSMORE: No questions, sir.
11 Questions from MR GREEN
12 MR GREEN: Sir, I shall hopefully be less than five minutes.
13 Mr Kerr, I ask questions on behalf of Marc Hobson.
14 I just want to pick up on the last question Mr McGrory
15 was asking you and the possible effects that an attack
16 on Mr Atkinson in the trial judge's judgment might have
17 had.
18 Indeed, we know that the judge made a number of
19 comments in his judgment about the "conflicts" --
20 I think that is the way the judge phrased it. I think
21 we can put up page [08746] of the judgment. Do you see
22 the paragraph beginning:
23 "I am unable to resolve the question whether the
24 police officers remained in the Land Rover during the
25 attack."
117
1 Just that paragraph:
2 "On the evidence of the hall patrons, this would not
3 be entirely surprising and would not necessarily reflect
4 on the officers' commitment to duty, since, according to
5 that evidence, the scene was peaceful immediately before
6 the attack as the patrons approached the
7 Thomas Street/Market Street junction."
8 Now there was an issue, Mr Kerr, at the trial as to
9 whether, in fact, the police officers got out of the
10 Land Rover in sufficient time to see or be present when
11 the attack on Mr Hamill occurred. Isn't that right?
12 A. Well, there was an issue as to the timing involved, yes.
13 Q. Part of the reason -- in fact, can I suggest the main
14 reason that Mr Atkinson was brought forward as a witness
15 was to confirm Constable Neill's version of being on the
16 ground and being in a position to see what he claimed he
17 saw Marc Hobson do. Isn't that right?
18 A. That's certainly one of the reasons he was called as
19 a witness.
20 Q. Now, when the judge -- in fact, if we take ourselves
21 back to the actual running of the trial, one thing for
22 sure we know about is that Constable Atkinson, when he
23 gave evidence, was not attacked -- isn't that right --
24 in terms of his credibility, using the material that
25 possibly was available in the statement of
118
1 Tracey Clarke?
2 A. Well, I haven't seen the transcript of the
3 cross-examination --
4 Q. You can take it from me, Mr Kerr, he was not.
5 There was mention made of the ICPC investigation and
6 mention of a neglect of duty allegation, and I think
7 a brief reference to the possibility of something else
8 that went beyond that, but really that was it and the
9 matter did not stray beyond that.
10 A. Well, certainly if you say the transcript doesn't
11 contain anything, that would be right. The issue would
12 be whether or not there was a cross-examination of the
13 other officer on that issue.
14 Q. Would you agree that if, in fact, the two police
15 officers were presented as a united front, "Here we have
16 two police officers saying the same thing", that the
17 issue as to whether, in fact, they were out on the
18 ground at the time when they claimed to be might be one
19 that counsel might decide, as a matter of tactics
20 defending Mr Hobson, not to pursue if he had no
21 information on which to do so?
22 A. In a case of this nature I would be astounded if he had
23 instructions in any form, or even without instructions,
24 that he wouldn't challenge in view of the background
25 evidence whether the officers were in a position to see
119
1 what they saw.
2 Q. But indeed, the learned trial judge certainly had that
3 issue to resolve. Isn't that right?
4 A. Well, the learned trial judge's way of resolving it was
5 whether or not, as one can see from the page that you
6 have up, that he couldn't say exactly when they got out
7 during the attack, but the real issue was whether or not
8 they failed to anticipate the attack.
9 Q. Yes, but he is there dealing with the issue that was
10 before him as to whether, in fact, these police officers
11 were on the scene as early as they claimed. Isn't that
12 right?
13 A. Well, that was one of the issues he had to decide, yes.
14 Q. If there was information that was available to the
15 defence, that would substantially undermine the
16 credibility of a police officer who says, "I was on the
17 scene at that particular time", that would have been
18 particular material to put to him. Isn't that right?
19 A. Of course, any such information is important, but the
20 relevant officer who saw what he says he saw was
21 Constable Neill, and I am not aware there was any
22 suggestion that Constable Neill didn't see what he saw.
23 Q. You see, the position, as it would have been presented
24 to the defence -- and I am saying this as obviously not
25 being involved in the trial -- is that here we have two
120
1 police officers who are saying, "We were on the scene at
2 an early stage". They did not have the facilities, that
3 is they did not have the material at their disposal to
4 fundamentally undermine Reserve Constable Atkinson and
5 that's why the attack on him was not made.
6 If that attack had been made, Mr Kerr, do you not
7 think it possible that the trial judge's findings in
8 terms of what he accepted from both police officers
9 might have been affected by that information?
10 A. Well, one has to be realistic about these things and
11 keep one's feet on the ground. The reality is that, of
12 course, as a general proposition, any information which
13 the judge has may affect his decision in some way, but
14 if the allegation that's being made is that the witness
15 concerned was showing favouritism to a certain section,
16 well, then it is hardly the position that he would have
17 himself placed out at a time to observe that section and
18 give evidence against him as opposed to saying he didn't
19 see him.
20 Q. Aren't we in a position here where the bona fides of
21 a Reserve Constable is seriously in question and the
22 Crown and yourself and your instructing solicitors would
23 have known and would have had the information that here
24 we have a Reserve Constable against whom there are not
25 just suspicions, but against whom there is -- certainly
121
1 there was evidence from Tracey Clarke and confirmatory
2 material in the form of telephone calls and the belief
3 within the department that Tracey Clarke was accurately
4 telling the account that Hanvey had given her.
5 So we have not just a tainted witness, Mr Kerr, we
6 have a witness whom the Crown actually believe to be
7 a tainted witness.
8 A. Well, you can't say, "We believe". Whether or not there
9 is evidence to show it which is disclosure material is
10 one issue. Whether we believe it or not is relevant.
11 But we come back to the basic point that I said, that
12 unless we are aware of the totality of the disclosure
13 that was made in the case, then this is a matter of
14 speculation.
15 Q. Because in dealing with Atkinson as a tainted witness,
16 the way to deal with him was to provide full disclosure
17 of those matters upon which complaint might be made that
18 he is a tainted witness, and that would be his identity
19 within the Tracey Clarke statement and any of the
20 interviews at which the allegations were put to him.
21 Those would be the bare essentials that would need
22 to be disclosed to the defence. Isn't that right?
23 A. Well, with respect, I have already said, Mr Green, that
24 one needs to see the totality of the disclosure that was
25 made in order to identify what information was known to
122
1 the defence.
2 As you are appearing for him, it may well be that
3 you know what was disclosed and whether or not it was
4 known to the defence.
5 THE CHAIRMAN: But you accept it would be necessary for the
6 defence to know the name of the officer?
7 A. In my view, on these facts, yes.
8 THE CHAIRMAN: Yes.
9 MR GREEN: Yes. Thank you.
10 Questions from MR EMMERSON
11 MR EMMERSON: Mr Kerr, first of all, I want to ask you some
12 questions, please, about the Article 3 issue just to
13 have the matter absolutely clear.
14 A. Yes.
15 Q. Leaving this case aside for a moment, where it is sough
16 to adduce the statement of a witness under Article 3 on
17 the grounds of fear, is it right to say that you would
18 need both some subjective claim of fear and some
19 objective evidence?
20 A. Yes.
21 Q. Can you explain, please, what the distinction between
22 those two is in as short a form as you can?
23 A. Effectively, the witness would have to say that the
24 reason she is not giving evidence is because of her
25 fear, and, in addition to that, one would need objective
123
1 evidence from the police, or perhaps from a member of
2 her family, to show that it was both reasonable and
3 proper for her to have such a fear.
4 Q. To what standard would you need to prove the fear in
5 order to seek the admission before a judge?
6 A. Beyond a reasonable doubt.
7 Q. So you would need to prove to the relevant criminal
8 standard the objective grounds for the fear as well as
9 the fear itself?
10 A. That's correct.
11 Q. Could that conceivably have been done in the light of
12 what Tracey Clarke was saying to you?
13 A. No.
14 Q. Can I just ask you very briefly then to deal with the
15 hypothetical situation, not the facts you were
16 confronted with, but the hypothetical where a witness
17 would say to you, "I am in love with this person, but
18 I am also very scared of them"; in other words where the
19 witness is giving to you equally -- two motives of equal
20 weight which are mixed.
21 Can you just explain to us how you would approach
22 a situation such as that?
23 A. If one has a situation like that, one is in a position
24 where, even if one feels there may be some genuine fear,
25 one is always going to have to disclose to the defence
124
1 that there is another reason potentially why the witness
2 will not give evidence.
3 Again, because of the standard of proof, it makes it
4 highly unlikely that the court will be able to hold that
5 the person is motivated by their fear. One could never
6 be sure which the primary motivating feature was in the
7 case.
8 Q. But in this instance, we were not even in that
9 situation?
10 A. No.
11 Q. Secondly, I want to ask you some questions about
12 Mr Prunty and the consultation with him.
13 Questions have been raised with other witnesses, but
14 not directly with you, about whether there was some
15 either impropriety or lack of judgment in the decision
16 made to show photographs to Mr Prunty at the second
17 consultation on 5th November in order to resolve his
18 identification of Dean Forbes and how that fitted with
19 the case as you understood it against Wayne Lunt.
20 Can I ask you to comment on how it was and why it
21 was you made the decision to show photographs to him?
22 A. It was absolutely clear in the case that this was now
23 an absolutely fundamental point as to whether or not
24 a person we had previously thought we could identify
25 quite clearly from the description of movements and
125
1 clothing was, in fact, the person concerned who was in
2 custody.
3 The witness concerned was a witness who we felt, up
4 until that point, had appeared apparently reliable. In
5 practical terms, the only way to test that, in view of
6 the fact that he said he had made observations on the TV
7 screen, was to try and test his observations in some
8 practical, meaningful way.
9 Accordingly, I advised the DPP that the appropriate
10 way would be to get pictures of both of the relevant
11 accused in addition to a number of other pictures and to
12 place them before the witness without comment other than
13 to ask him who was the person he was purporting to
14 identify.
15 Q. As the attacker?
16 A. As the attacker.
17 Q. Just pausing there for a moment, please, Mr Kitson has
18 given some evidence about this in statement form and in
19 testimony. I am not going to take to you it, because it
20 is rather long, but can I summarise it for you in this
21 way?
22 A. Yes.
23 Q. Mr Kitson has explained his analysis of the case against
24 Wayne Lunt as it stood before this development in
25 Mr Prunty's evidence as really resting on two separate
126
1 limbs.
2 The first limb was the evidence of Mr Prunty alone
3 that he had seen a man, as part of the attack, kicking
4 at Robert Hamill on the ground and that he had later
5 seen that same man being taken to the police van and
6 placed inside and gave a description of him. So that
7 the first limb was that Mr Prunty saw the attack and was
8 able to say that the same person he saw on the ground
9 was the person he later saw being taken to the police
10 van.
11 A. Indeed.
12 Q. Then the second limb was proving that the person who was
13 taken to the police van, which could be independently
14 established, must have been Wayne Lunt. Mr Kitson's
15 analysis is, when Mr Prunty's account changed, although
16 he was still maintaining that the two were one and the
17 same, he was now saying that both men were Dean Forbes
18 and that in Mr Kitson's analysis that really
19 fundamentally destroyed the first limb of the case,
20 because it meant you would have had to have presented
21 him as a witness who was manifestly unreliable and wrong
22 in his identification of the man that he saw, but
23 nonetheless reliable and right in saying that the two
24 people he saw were one on the same.
25 Now, I just want to understand, is that the process
127
1 of reasoning through which you went?
2 A. That's correct. That's correct.
3 Q. Thank you.
4 THE CHAIRMAN: The lacuna in the evidence was that for
5 a time he had lost sight.
6 MR EMMERSON: Precisely, sir, yes.
7 THE CHAIRMAN: That's why, in that event, his identification
8 of the right man became important.
9 MR EMMERSON: Precisely, sir.
10 THE CHAIRMAN: Yes.
11 MR EMMERSON: Bridgett briefly. The question of further
12 interviewing Bridgett. You quite rightly said
13 obviously, in the first instance, the question of what
14 matters are to be put to Bridgett in interview is
15 an issue for the police.
16 A. Yes.
17 Q. You are aware, I think, that the discovery and the first
18 information about the blood spot on Robert Hamill's
19 jeans relating to Bridgett was not known to the police
20 until after the first set of interviews had been
21 conducted?
22 A. That's correct.
23 Q. But that, as you explain I think in your opinion, what
24 the blood spot did establish is that the account that
25 Bridgett had given in interview was untrue --
128
1 A. Yes.
2 Q. -- about how close he had been to Robert Hamill during
3 the course of the incident.
4 Now, you made the observation that, obviously, if it
5 had occurred to the directing officer within the DPP at
6 some later stage that it was right and ought to have
7 been a re-interview, then a direction to that effect
8 could have been given.
9 A. Yes.
10 Q. Presumably, if it had occurred to you, you could have
11 advised that that was a course that needed to be taken.
12 A. Oh, indeed. If I thought there was any significance
13 which would have been, no doubt, after further
14 clarification from the forensic witness, then it really
15 would have been my decision to direct the DPP that it
16 should be covered.
17 Q. It was not something you thought was necessary?
18 A. No.
19 Q. Just to be clear again, Mr Kitson, putting it shortly,
20 has given evidence, at that stage in the process in
21 relation to this, that, you know, in reality you already
22 had a lie, and, as far as he could see, if asked the
23 question, he would have thought that an interview at
24 that stage would have provided at best an opportunity
25 for Bridgett to further explain the matter away rather
129
1 than any likelihood of an admission and that the
2 prosecution case would be weakened rather than
3 strengthened.
4 A. Indeed.
5 Q. I mean, is that a process that you actually thought
6 through or discussed or ...?
7 A. At that particular -- I don't remember specifically
8 going through that process. The reality is I would not
9 have considered taking any further steps without
10 clarification as to the strength or otherwise of the
11 forensic evidence, and my recollection from reading the
12 papers again last night is that I was told that the
13 forensic scientist was unwilling to express any opinion
14 of any firm nature based on the spot concerned.
15 That being the case, it didn't seem to me as if it
16 was going to advance the case, so I doubt if I would
17 have even gone through the process.
18 Q. Thank you.
19 Suggestions have been floated that faced with the
20 information that came back to you following the
21 conversation between Mr Davison and Mr Marshall, that
22 perhaps further forensic tests should have been
23 requested either by asking for other areas of
24 bloodstaining to be examined, or, indeed, by asking for
25 a different specialist, perhaps an expert in blood
130
1 spatter analysis, to review Mr Marshall's findings and
2 seek perhaps some further information from the single
3 blood spot that was identified as Bridgett's.
4 Can I just ask you to comment on that?
5 A. Well, I mean, that to me would not be necessary or
6 appropriate in this case. The reality is that
7 Mr Marshall was an experienced forensic scientist who
8 could have, and would have, suggested if further testing
9 would have added anything to the case.
10 Secondly, in terms of a blood splatter expert, we
11 are talking about one ordinary, round spot. With
12 reality, that is not a complicated scene and any
13 forensic scientist with experience of blood is liable to
14 be able to say whether a conclusion can be drawn from it
15 or not
16 Q. Indeed, if Mr Marshall had thought that the issue was
17 beyond his expertise or that a further specialism was
18 justified, what would he normally do in a situation like
19 that?
20 A. Well, you can be sure Mr Marshall would have suggested
21 further work should be done by someone else.
22 Q. The redaction to Tracey Clarke's witness statement.
23 I will take this very briefly, if I may. We have
24 obviously seen the form in which the redactions appear,
25 and I am not going to ask you about whether the
131
1 statement as it stood was sufficient to convey
2 information about the allegation against Reserve
3 Constable Atkinson, but can I ask you this: does it
4 sometimes happen that within a witness statement where
5 it is sought to preserve the identity of the
6 statement-maker it is necessary to redact the identities
7 of people mentioned by the statement-maker in order to
8 prevent anybody reading it and deducing the identity of
9 the statement-maker by working backwards?
10 A. Absolutely. That's quite standard.
11 Q. Having looked at the way in which the statement is
12 drafted, is that a pattern that would be consistent with
13 that form of redaction?
14 A. It certainly is.
15 Q. We know here the passage we are talking about -- whether
16 it was rightly or wrongly redacted isn't the issue
17 I want to address at this point -- we know it redacted
18 the name of Atkinson and it redacted the name of Hanvey,
19 so presumably Hanvey was identified as the girlfriend --
20 I am so sorry -- the boyfriend of the statement-maker?
21 A. Yes.
22 Q. All other things being equal, would you have expected,
23 if the intention was to keep the identity of the
24 statement-maker secret, then it would have been
25 necessary to redact the identity of her boyfriend?
132
1 A. Yes.
2 Q. Similarly, in relation to the conversation between
3 Atkinson and Hanvey as it was reported by Tracey Clarke,
4 if it was reported that Atkinson was tipping off one of
5 those involved, that equally could have led to the
6 identification of Tracey Clarke?
7 A. It could have done.
8 Q. So whether, in fact, that consideration should have been
9 overridden on the facts of this case, it does appear,
10 does it not, that the way in which the statement has
11 been redacted is certainly most consistent with the
12 redactor's intention to protect the identity of the
13 statement-maker?
14 A. Which in this case would have been a very important
15 factor.
16 Q. Just to be clear, at the same time as this statement was
17 disclosed, we know also that a statement was disclosed
18 from Timothy Jameson, the other person whose statement
19 was being sought, and that was similarly redacted with
20 all of the names.
21 Are you aware of that as well?
22 A. I was aware there was redaction for those reasons, yes.
23 Q. So whoever did it and whether it was right or wrong to
24 do that in relation to this portion, the purpose of this
25 seems to have been to protect the identity of
133
1 Witnesses A and B. Do you agree with that?
2 A. Yes, and that's very common.
3 Q. Thank you. Finally this. You were asked about
4 differences of opinion on affray. I think I noticed on
5 the transcript that we got a transcript error which may
6 be of some significance at paragraph 77, line 4. You
7 said words to the effect of:
8 "Answer: I considered that affray had been probably
9 made out in relation to a number of suspects",
10 or words to that effect. I think it appeared on
11 our transcript as "properly made out."
12 A. No. "Probably", not "properly".
13 Q. I just want to be clear about this, because it may be of
14 importance later on. There were two of the suspects in
15 respect of whom there was some shade of difference of
16 opinion between yourself and Mr Kitson. Is that right?
17 A. That's correct.
18 Q. The first was Robinson. In relation to Robinson,
19 Mr Kitson had already taken a decision not to prosecute
20 for affray before he received your opinion, which
21 expressed the view that, taken at its height, the
22 evidence would support a charge of affray. Correct?
23 A. That's correct.
24 Q. The other was Bridgett, in respect of whom I think the
25 difference of opinion was somewhat in the opposite
134
1 direction.
2 Mr Kitson's view was that the evidence was likely to
3 support a charge of affray. Your view as expressed in
4 consultation, according to the notes of 18th November,
5 is that you thought it was doubtful whether the evidence
6 would support a charge of affray?
7 A. That's correct.
8 Q. Now, Mr Kitson's recollection is that during the course
9 of that consultation, and in discussions with you, these
10 differences of opinion were eventually ironed out and in
11 both cases Mr Kitson took the decision, having consulted
12 with you and having exchanged views with you, that there
13 was insufficient evidence to charge for affray in either
14 case.
15 A. Yes.
16 Q. I think on 10th December we know that the Director of
17 Public Prosecutions wrote a letter to the Attorney
18 General explaining various decisions that had been
19 taken, including the affray decisions in relation to
20 Robinson and Bridgett. Do you recall that?
21 A. I can recall seeing that.
22 Q. Yes, because I think, just to make sure for the
23 Director's point of view the apparent differences of
24 opinion between yourself and Mr Kitson had been properly
25 ironed out, were you asked to review the letter and to
135
1 ensure that its contents were correct?
2 A. Oh, I was made aware of the contents of the letter and
3 it wouldn't have been unusual for me with a senior
4 directing officer like Mr Kitson for us to have
5 an initial disagreement and for us to discuss the matter
6 and then for a final opinion to be formed.
7 Q. So we see at various points in that letter of
8 10th December your advice is referred to in terms that
9 are apparently inconsistent with your written advice,
10 and indeed with the advice as it had been expressed in
11 consultation, but that was a point of view that had
12 evolved through discussion between Mr Kitson, and then
13 you were effectively signing off the letter that the
14 Director sent to the Attorney?
15 A. Indeed. That's quite common.
16 MR EMMERSON: Thank you. Those are the questions I wanted
17 to ask.
18 Further questions from MR UNDERWOOD
19 MR UNDERWOOD: Just one thing arising out of this. Let's
20 see if I can bottom this out.
21 The allegation against Atkinson in Tracey Clarke's
22 witness statement was in a passage where she said,
23 "Hanvey told me this".
24 Now, how could taking Atkinson's and Hanvey's name
25 out possibly hide from Hanvey, if this was going to be
136
1 given to him, who the maker of the statement was,
2 because, if the statement was true, then, as you
3 believed it to be, obviously he is going to know who he
4 told, isn't he?
5 A. Well, the disclosure was being made, as I understood it,
6 to Hobson.
7 Q. But who was representing Hobson?
8 A. Well, that, with the greatest respect, is why I very,
9 very carefully said that one needs to know exactly the
10 totality of the information known to the defence,
11 because it may well be it was our understanding that the
12 defence were well aware of the identities.
13 Q. It is not just that, is it? Hobson and Hanvey were
14 represented by the same solicitors.
15 A. Yes, exactly.
16 Q. If you give the statement to Hobson's team, then it will
17 be available to Hanvey?
18 A. Indeed.
19 Q. And Hanvey knows, if the statement is true, who it was
20 he told about the conversation?
21 A. And vice versa.
22 Q. Quite. So ironing the names out does not take it any
23 further, does it, because it makes it clear to that team
24 who made the statement?
25 A. Well, put it this way. One cannot deal with disclosure
137
1 on that basis if one feels there is a need to try to
2 make a protection for a witness, and, on the face of it,
3 quite properly, if persons have solicitors and there
4 aren't joint accused, then one would take the relevant
5 steps.
6 Q. So, in other words --
7 A. Its net effect in any particular case may or may not in
8 practical terms be a good effect or not, but the reality
9 is that things have to be done in the proper way.
10 MR UNDERWOOD: Thank you very much.
11 Questions from THE PANEL
12 THE CHAIRMAN: You presumably would have known, because you
13 conducted the prosecution, that not only were these
14 names redacted from the statement that was disclosed,
15 but that there had been no other information given by
16 the prosecution to identify anyone.
17 A. Well, I would have to say that ordinarily I would be, or
18 should be -- I have no particular recollection -- aware
19 of the nature of the disclosure made. Whether or not
20 I was shown the particular form of statement that was
21 passed out, I don't know.
22 THE CHAIRMAN: Since you have told us it was necessary for
23 the name to be known for the disclosure to be effective,
24 you would have wanted, not necessarily by seeing
25 anything in writing, but to be confident that the name
138
1 was known.
2 A. Certainly, I would have wanted to be aware that
3 disclosure had been properly made.
4 THE CHAIRMAN: If the name had been withheld and your view
5 was that the defence had no other way of knowing the
6 name, what would your course have been then?
7 A. I could have, and would have, spoken to defence counsel.
8 THE CHAIRMAN: Did that happen?
9 A. I cannot recall it having to happen.
10 THE CHAIRMAN: Are you able to tell us now whether your view
11 was that these names were known within the defence team
12 so that one person would be able to make the knowledge
13 available to another?
14 A. Well, it would be, I think, Mr Chairman, with respect,
15 wrong of me to try to speculate backwards. Certainly my
16 practice would have been that I would have had to have
17 been satisfied that proper disclosure had been made, and
18 certainly in the circumstances that I was in at the time
19 I had no reason to believe it wasn't, but it wouldn't be
20 proper for me to speculate backwards, because it would
21 be speculation and not proper memory of any particular
22 event.
23 THE CHAIRMAN: The position would be this, wouldn't it: if
24 a disclosure that in the interests of justice was
25 required and was withheld, then the question would have
139
1 to be considered whether the case should be dropped?
2 A. Indeed.
3 THE CHAIRMAN: Thank you.
4 MR UNDERWOOD: Thank you very much.
5 THE CHAIRMAN: We will break off now until 2.35 pm.
6 A. Thank you.
7 (The witness withdrew)
8 (1.35 pm)
9 (The luncheon adjournment)
10 (2.35 pm)
11 MR UNDERWOOD: Mr Burnside, please.
12 MR GEOFFREY STEPHEN BURNSIDE (affirmed)
13 Questions from MR UNDERWOOD
14 MR UNDERWOOD: Good afternoon, Mr Burnside. My name is
15 Underwood and I am Counsel to the Inquiry.
16 A. Yes.
17 Q. I have some questions for you and it may well be there
18 are some supplementals after that.
19 Can I ask you your full names please?
20 A. Geoffrey Stephen Burnside.
21 Q. Unusually, I am going to ask you to look at three
22 documents to identify.
23 First of all, on .pdf we have a version of your
24 interview. That was an interview conducted on
25 16th December 2008. Do you recall that?
140
1 A. Yes.
2 Q. Have you had a chance to see the transcript?
3 A. Yes.
4 Q. Thank you. Then there is a document which is a draft
5 statement which was compiled by the Inquiry. Again,
6 I would just like you to look at that, if you would,
7 please. That runs to five pages. Would you mind just
8 keeping your eye on it while we flick through them?
9 That was delivered to you some while ago, I think.
10 A. Uh-huh.
11 Q. Then, finally, there is a version of that which, as
12 revised, you have signed this morning. Is that right?
13 A. No, I signed it on Monday, but because of e-mail
14 problems it was only sent to your address I think this
15 morning.
16 Q. We have that at two different page numbers. As signed
17 I think it is at [82025]. It may well be other people
18 are working from 82008. I am going to work off
19 [82025].
20 Again, would you mind keeping your eyes on that as
21 we scroll through the pages?
22 THE CHAIRMAN: Are the two statements different?
23 MR UNDERWOOD: Yes. That's why I am so laboriously going to
24 them, I am afraid.
25 THE CHAIRMAN: Which one do we have?
141
1 MR UNDERWOOD: You have [82025], sir. At least, I hope you
2 have, but the signed version and the version at 82008
3 are precisely the same apart from the signature. If
4 people are working off 82008, it is not a problem.
5 SIR JOHN EVANS: Mine is not paginated.
6 THE CHAIRMAN: [82025] is our first page.
7 MR UNDERWOOD: While we are on that, Mr Burnside, is that
8 your signature at [82029]?
9 A. Yes.
10 Q. Is that statement, as signed, your evidence?
11 A. Yes.
12 Q. You stand by that, do you?
13 A. Yes.
14 Q. Can I just ask some general questions about the way the
15 system worked at the Crown Court in Belfast in 1998?
16 Were you in charge of disclosure on behalf of the DPP
17 for the Crown Court there?
18 A. Yes.
19 Q. Can you tell us what test for disclosing to the defence
20 the DPP operated by you in those days?
21 A. Well, the Criminal Procedures Investigation Act was in
22 force for investigations begun after 1st January 2008
23 but we were running a parallel system for investigations
24 commencing before that, which was the old common law
25 rules on disclosure, the Keane test.
142
1 Q. You said 2008. I take it you mean 1998?
2 A. 1998. Sorry, yes.
3 Q. Can you, just for the sake of the record, if nothing
4 else, tell us how you understood the Keane test?
5 A. Well, it was material which was relevant to an issue or
6 a possible issue in the trial had to either be disclosed
7 to the defence or put before a judge as to a decision
8 whether the court would order disclosure or not.
9 Q. Thank you. Help us on this: where you had a Diplock
10 court, what would happen in terms of putting material
11 before a judge for disclosure or redaction purposes?
12 Would you have to use a judge who was not going to be
13 the trial judge?
14 A. Yes, there was a disclosure judge appointed in the case
15 who wouldn't be the trial judge.
16 Q. So it would not have happened, for example, that
17 Lord Justice McCollum would have heard an argument, seen
18 documents and dealt with redaction of anything and then
19 gone on to be a trial judge?
20 A. No.
21 Q. Help us also about this. We know, of course, that in
22 this jurisdiction for a long time prosecution counsel
23 have seen witnesses for the Crown --
24 A. Yes.
25 Q. -- in consultation or conference to assess how they
143
1 might give their evidence.
2 A. Yes. Not only prosecuting counsel, but prosecutors and
3 just -- directing officers from the DPP's office.
4 Q. I only want to concentrate on counsel for the moment.
5 A. Okay.
6 Q. Where, under that practice, a witness says something to
7 counsel which may be material under the Keane test for
8 disclosure, would privilege be claimed for it?
9 A. No. All consultations would be conducted in the
10 presence of a police officer, and if material required
11 to be disclosed, then the police officer would make
12 a statement and their statement would be disclosed.
13 Q. So it simply wouldn't happen that privilege would be
14 claimed for anything arising out of a consultation like
15 that. Is that fair?
16 A. Well, I can't say it would never have happened. There
17 may be circumstances in which it would. I can't recall
18 that it happened.
19 Q. Let me rephrase that more carefully.
20 Where something emerged then in the course of such
21 a conference or consultation which, under the Keane
22 test, would require disclosure, that requirement for
23 disclosure would predominate. That was what would
24 happen. It would be disclosed?
25 A. Yes.
144
1 Q. Right. You tell us in your statement about Mr Monteith
2 being alert for the potential of the existence of
3 materials which might reflect on Mr Atkinson.
4 Can we just have a look through some of the letters
5 so we can see what we are on about there? Page [31541]
6 seems to be the first of those. 12th August 1998. This
7 is this in essence directed at you, is it?
8 A. Yes. It's directed to -- it would have come to me,
9 because it is referred to Belfast Crown Court and that
10 would be after Mr Hobson was committed for trial, yes.
11 Q. Right. If we look at the paragraph numbered 1):
12 "The defence in this particular case would require
13 full and complete disclosure. Accordingly, any
14 outstanding matters should therefore be disclosed
15 forthwith.
16 2) it would appear clear that matters relating to the
17 basis for Hobson's initial arrest have not been fully
18 disclosed, ie details, statements and documents relating
19 to at least two persons who purported to give evidence
20 at some stage have not been disclosed. Also, any
21 materials relating to their subsequent discontinuance of
22 evidence or other circumstances have also not been
23 disclosed."
24 If we go then to 3):
25 "It is also apparent that a considerable volume of
145
1 material relating to 27th April 1997 and the conduct of
2 Crown witnesses and police officers in or about
3 Portadown Police Station and the completion of
4 statements, taking of statements, debriefing and other
5 matters are within the possession of the Crown but have
6 not been disclosed to the defence. I put you on notice
7 that all documents, actions, memoranda, original witness
8 statements, copy witness statements and documents of any
9 nature whatsoever relating to the case and the police
10 activities of 27th April 1997 should be disclosed
11 forthwith. This should refer not only to
12 Constable Neill and clearly refers to the matter in the
13 depositions, but also to each and every police officer
14 in any way involved in the case."
15 If I can be brutal about this, that couldn't have
16 been much wider, could it?
17 A. No, that was as broad as it could be.
18 Q. We know from your interview that you would ordinarily,
19 you say, have sought the DPP -- sorry, sought the
20 neglect file if there is a complaint against police that
21 you are involved in.
22 Would that be right, or do you want me to put the
23 specific passage to you?
24 A. The complaint file --
25 Q. Yes.
146
1 A. -- from the ICPC?
2 Q. Let's look at paragraph 10 of your signed witness
3 statement. It is at either page [82026], which I want
4 to go to, or page 82009 for those working off the
5 other copy.
6 In paragraph 10 you say:
7 "At the same time as the case against his client,
8 there was a public complaint of neglect of duty against
9 Constable Neill and Reserve Constable Atkinson made by",
10 overleaf, [80027], "the Hamill family and against
11 Reserve Constable Atkinson for assisting an offender,
12 made by Tracey Clarke, both of which were being handled
13 by the DPP. Obviously this was of interest to
14 Mr Monteith, as both police officers were key witnesses
15 against his client."
16 Then you go on to deal with the letter then.
17 A. Yes.
18 Q. Obviously we are several years after that event now.
19 Are you saying that you had that file?
20 A. I can't remember whether I had the full PPS file in
21 front of me or whether I had a copy of it, or whether,
22 as I sometimes did, if it was a big file, I would have
23 gone down to our headquarters building and looked at the
24 file, but I was aware there was a file and I had looked
25 at it.
147
1 Q. The --
2 A. When I say that, that would have been my normal
3 practice. I don't actually remember.
4 Q. That's what I am asking.
5 A. My normal practice would be to see files in which there
6 was a complaint against police.
7 Q. But is this fair: you simply have no recollection on
8 this occasion?
9 A. I don't remember specifically seeing this file.
10 Q. The difficulty that the Inquiry is labouring under is
11 that we don't have disclosure schedules after
12 February 1998 when the neglect file came in, you see, so
13 we actually cannot say with precision what documents
14 were disclosed at any stage, or, for that matter, what
15 documents were in your hands at any stage.
16 A. Uh-huh.
17 Q. So ordinarily, you would either have got the file or
18 seen it --
19 A. Uh-huh.
20 Q. -- but there is no recollection here. Is that fair?
21 A. That's fair.
22 Q. Can you tell us how it is -- I know you now know there
23 was a neglect file -- can you tell us how you would have
24 been alerted to the fact of a neglect file in those
25 days?
148
1 A. Whenever the police complaints people received a file,
2 they sent notification to us that they had it, and then
3 that was put on our own file so we were aware that there
4 was a related police complaint file.
5 It usually came on a little sticky on the inside of
6 the file, as I recall, and the document said "Related
7 police complaint file number", and then the number or
8 numbers of the file would be on that document.
9 Q. I appreciate that if the ICPC is involved and it informs
10 you, that might happen, but here we know that on 12th or
11 13th February 1998 the neglect file arrived at the DPP
12 office and that on 16th February it was given to
13 Mr McCarey to hold.
14 A. Uh-huh.
15 Q. We also know that he, in due course, issued a direction
16 that a final decision on that file would pend the
17 outcome of analysis of the evidence which emerged in the
18 Hobson trial. Do you follow?
19 A. I do, yes.
20 Q. So leave aside the ICPC for the moment. Would the
21 receipt of a file by the DPP, which was a neglect file,
22 have itself triggered any sort of crossover, if you see
23 what I mean?
24 A. I don't recall there being a system for that. It may
25 have been that the individual officer, directing
149
1 officer, it was their responsibility then to notify
2 a related file to whoever was handling the related file.
3 Q. Yes. Again, help me with the ICPC.
4 Assuming the ICPC did what it was supposed to do for
5 the moment, it would notify you, would it, or notify the
6 DPP's department that it was in receipt of a file from
7 the police which had a potential impact on some other
8 file that was in your possession. Is that what you are
9 saying?
10 A. Yes. When someone made a complaint, it usually
11 related -- well, it sometimes related to a file which we
12 were prosecuting, what we would call the main crime
13 file, and if it related to a police investigation, then
14 they were to inform us, and did inform us, that they
15 held a compliant file so we were aware that we were
16 required to look at that as well as the main file.
17 Q. I may be taxing your memory too far on this. Have you
18 any recollection whether that happened here?
19 A. I don't directly recall that happening. Well, I don't
20 directly recall dealing with the file that way, but
21 clearly correspondence indicates that I was aware of the
22 file and that we had received it and that a decision to
23 prosecute or not prosecute had not issued on it. So I
24 was aware of the file when I was writing my letters to
25 Mr Monteith.
150
1 Q. In those circumstances, would there be -- I will come
2 back to that.
3 Can I ask you again, tax your memory as best we can
4 after this time, what it was you would have known about
5 when you were making disclosure decisions here?
6 The first thing is you obviously had Tracey Clarke's
7 or Witness A's statement --
8 A. Yes.
9 Q. -- which had in it, amongst other things, the contention
10 that Hanvey had told her that Atkinson had tipped him
11 off.
12 A. Yes.
13 Q. We also know that the analysis part of the neglect file
14 recorded that the telephone records supported that.
15 Were you aware of that?
16 A. I don't remember being -- whether I was aware of it or
17 not. There is no -- I make no reference to it in my
18 correspondence.
19 Q. No. Help me on this: if you had been made aware of
20 that, would that have struck you as being disclosable?
21 A. It would depend what the telephone records showed.
22 Q. Let me --
23 A. We would have applied the test to it.
24 Q. Let me put this very broadly. The tip-off allegation
25 contained as hearsay in Tracey Clarke's statement is to
151
1 the effect that at about 8 o'clock on 27th April 1997
2 Atkinson rang Hanvey to tell him to get rid of his
3 clothes.
4 A. Uh-huh.
5 Q. What the telephone record showed was that there was
6 indeed a phone call about 8.30 from the Atkinson
7 household to the Hanvey household?
8 A. Uh-huh.
9 Q. Now, those two things taken together, would you have
10 regarded those as relevant under the Keane test to
11 disclose when Atkinson was being used as a witness of
12 the events on the night?
13 A. Without going into a full analysis, I assume that
14 I would have treated them in the same way I treated part
15 of the statement of Witness A, and I would probably not,
16 at this stage of disclosure, have disclosed it.
17 Q. Why not?
18 A. Well, the disclosure process was a long and ongoing
19 process. You have already drawn notice to the fact that
20 Mr Monteith asked for a broad range of documents which
21 might be categorised as a fishing expedition.
22 Part of the process that I was involved in was to
23 narrow the issues down to ensure that documents that
24 I disclosed were relevant to issues, or possible issues,
25 at the trial. The various letters from Mr Monteith
152
1 didn't specifically state that this was a matter which
2 he was interested in taking up at the trial.
3 I had to bear in mind that this was as yet
4 an unsubstantiated allegation, that there was no finding
5 of guilt in respect of that and weighing all those
6 matters in the balance at this stage, subject to further
7 discussion and further request from Mr Monteith, perhaps
8 a judicial hearing, I was not minded to disclose it at
9 that time.
10 Q. Let me test that. You knew, didn't you, that there were
11 four officers in the Land Rover?
12 A. Yes.
13 Q. You knew only two of those were being called to give
14 evidence of the events?
15 A. Yes.
16 Q. You knew it was only one of those, Mr Neill who, claimed
17 to have seen Hobson?
18 A. Yes.
19 Q. But you knew, didn't you, that there was an issue about
20 whether Neill could have seen him, because there was
21 a contention on the part of some Catholic witnesses that
22 the police didn't get out of the Land Rover until the
23 assault had been over. Were you aware of that?
24 A. I knew that that was an allegation, yes.
25 Q. Did you understand that a reason for calling
153
1 Mr Atkinson, if not the only reason for calling
2 Mr Atkinson, was to give corroborative force to
3 Mr Neill's contention that indeed at least he and
4 Atkinson were out of the Land Rover and were active at
5 the time the attack was going on?
6 A. Well, that may be the reason that he was called to give
7 evidence. That really wasn't my function to determine
8 who was to give evidence at that stage, but I was aware
9 that he was to give evidence.
10 Q. Did you understand his evidence had that effect when you
11 read the statement?
12 A. Well, I can't say what I was aware of now, because it's
13 12 years ago, but I can see that that would be a natural
14 conclusion to draw.
15 Q. Would you accept that in those circumstances
16 an allegation that he saw Hanvey do something which led
17 him to ring him the next day to get him to tip off his
18 clothing was at least inconsistent with his witness
19 statement?
20 A. I don't see why it is inconsistent with his witness
21 statement. It may be --
22 Q. Because he doesn't mention that he sees Hanvey.
23 A. It may be omitted from his witness statement, but that
24 would be a matter for him.
25 Q. Would that be relevant to the defence?
154
1 A. It is possible it could be relevant to the defence.
2 Again, following the disclosure process, a decision
3 that I made at the time of the first letter, the second
4 letter, other letters, other hearings, other discussions
5 with Mr Monteith, all these matters were under review at
6 any time and, in fact, were reviewed.
7 Q. I fully appreciate, if I may say so, that the effect of
8 a letter from a solicitor may be to alert you to
9 an issue, but it makes no difference to your disclosure
10 obligation, does it?
11 I mean, your obligation must be to look at the
12 materials you have and to see what might help the
13 defence, including might help the defence pursue
14 lines of enquiry of which it is ignorant?
15 A. It didn't appear to me that the defence were ignorant of
16 that particular line of enquiry.
17 Q. So all the more reason then to disclose materials which
18 go to it. Yes?
19 A. That may be the easy option but it is not necessarily
20 the right option.
21 THE CHAIRMAN: The principle surely under Keane is you don't
22 just look at what the defence ask for. There may be
23 other matters of which the defence are unaware, but
24 which, you seeing them, might realise would be relevant
25 and you have to disclose them as well whether or not
155
1 they have been asked for?
2 A. That's correct.
3 THE CHAIRMAN: Yes.
4 MR UNDERWOOD: Time has moved on them, you having initially
5 refused to disclose, and if we look at page [24] of your
6 transcript in its .pdf form --
7 THE CHAIRMAN: Page [24] has come up.
8 MR UNDERWOOD: Yes. Thank you. I just want to pick this up
9 from -- on the left-hand side, if we pick up the second
10 use of the phrase, "Michael Stephens" there, the second
11 entry of the name. Let's take it from the first use of
12 it:
13 "Michael Stephens: Well, you would have had
14 Tracey Clarke's statement?
15 "Stephen Burnside: Yes, I would have been able to
16 read her statement so I would know what she was saying
17 about --
18 "Michael Stephens: Which contained the allegation
19 against Atkinson of assisting an offender, as far as
20 that was concerned?
21 "So that was in Tracey Clarke's statement which was
22 edited out. All I'm saying is Monteith in his initial
23 letters was referring to neglect of duty, assisting
24 an offender and failure to disclose information. So he
25 was aware of that from the outset it would appear
156
1 anyway.
2 "Stephen Burnside: Uh-huh.
3 "Michael Stephens: What was being gained by editing
4 out that allegation?
5 "Stephen Burnside: It was simply an application of
6 whether what was being disclosed was relevant to the
7 issues at the trial. He was asking for disclosure of
8 this in respect of the initial reports of the arrests,
9 why ... the initial reports. That was my view of what
10 the issue was. That's what I was disclosing in respect
11 of. So that would be my thought process."
12 Is that an accurate reflection of what you said?
13 A. I think that's a transcript, yes.
14 Q. So what emerged from that at the end of last year when
15 you were first asked about this is that you were being
16 very restrictive about what you disclosed on this in the
17 face of applications by Mr Monteith, and you were
18 restricting it to what you regarded as the specific
19 request: namely, for disclosure in respect of initial
20 reports of the arrest. Is that fair?
21 A. Not totally, no I was containing my disclosure to the
22 matters which I considered were issues at the trial or
23 possible issues at the trial.
24 When I was interviewed at that time by Mr Stephens,
25 I didn't actually have a copy of the edited version of
157
1 the statement which was, in fact, disclosed at the end.
2 Q. I am not -- I am so sorry. Go on?
3 A. He said there that the allegation was edited out. When
4 I came to look at it, in fact, it wasn't edited out when
5 it was disclosed. I didn't -- obviously at that stage,
6 when I was being interviewed I couldn't remember whether
7 it was or wasn't edited out. I was going by what he
8 said.
9 Q. I am not concerned at the moment --
10 A. I am going through the process by which I would have
11 made any decision to disclose or not disclose any
12 material.
13 Q. I don't -- I am so sorry. Go on.
14 A. Apologies.
15 That is that it would have to be relevant to
16 an issue in the trial. At that early stage of the
17 disclosure process I was trying to define the issues
18 Mr Monteith wanted to address and any other possible
19 issues. That's why I took the attitude I did.
20 Q. I just want to test that against the Keane test, you
21 see. That excludes, doesn't it, the possibility of
22 looking for lines of enquiry that might assist the
23 defence that they don't know about?
24 A. Well, if there were any lines of enquiry that I thought
25 would lead to something that the defence could ask
158
1 about, and that was my view, then I would have disclosed
2 them.
3 Q. Mr Burnside, the fact that a police prosecution witness
4 has an allegation against him of assisting one of the
5 murderers on the night is surely highly material to
6 cross-examining him?
7 A. Yes, that would be the position once we had looked at
8 all the issues and we looked at the -- with Gordon Kerr
9 and with counsel on the case we came to the decision
10 that should be disclosed.
11 Q. That's not right, is it? Mr Kerr just cut your legs
12 away. He made the admission in front of the trial judge
13 that that's what he was going to do and then landed you
14 in it.
15 A. Well, he didn't land me in it, because, even if he had
16 made that admission and I spoke to him and didn't agree
17 what he was doing, it was still my duty to take the
18 decision as to disclosure.
19 Q. That's why I am asking you, why you didn't take it.
20 A. I didn't take it at this stage, because I was conducting
21 a balancing exercise of the material I had in front of
22 me from the defence solicitor, material I had in front
23 of me from the file, trying to determine what the issues
24 were in the case, reviewing the disclosure against the
25 information which I had from the defence and from the
159
1 files and making a decision on that basis.
2 Q. Let's go back to the page before this in the transcript.
3 Let's have [23] and [24] up in front of us, if we can.
4 I am not sure we can split the screen. Just pick it up
5 from three-quarters of the way down this page:
6 "Michael Stephens: Going back to what Monteith had
7 said earlier, he was aware of the allegation against
8 Atkinson anyway, wasn't he, from what he'd said about
9 assisting an offender?
10 "Stephen Burnside: Yes.
11 "Michael Stephens: Was that -- the only allegation
12 of assisting an offender was against Atkinson, wasn't
13 it?"
14 If we go over to [24], you say:
15 "Stephen Burnside: Well, I'm not sure, I'm not sure
16 whether I would have been aware of it then. I'm
17 certainly not aware of it now. So I don't know the
18 details of what the allegations were against each of the
19 police officers."
20 If I might say so, it makes it look there as if you
21 had not seen the neglect file, you see. What do you say
22 about that?
23 A. Well, I understood what Mr Stephens was asking was in
24 respect of other allegations against other police
25 officers. I was aware of the allegation against Reserve
160
1 Constable Atkinson. I wasn't aware, at the time of the
2 interview, whether there were other allegations against
3 other police officers or whether they had been made
4 subsequently. I wasn't sure what he was saying at that
5 point about the other allegation. If there had been and
6 there had been files in, I would have been aware of
7 them.
8 Q. So you were thinking about the possibility there might
9 have been some other file there, are you?
10 A. Yes. I think if -- the question on page 23 relates to
11 other police officers. So that was my -- I assumed
12 that's what he was asking about at that point.
13 Q. You are aware, are you, that there were allegations of
14 neglect of duty in the neglect file against the other
15 officers in the Land Rover?
16 A. Yes.
17 Q. Can we also look at page [31526], please? It is your
18 letter of 9th October 1998. Is that right?
19 A. I believe so, yes. My initials are at the bottom of it.
20 Q. Take it from us it is to Mr Monteith.
21 A. Yes.
22 Q. In the first three paragraphs you deal with some
23 disclosure of materials we are not concerned with here.
24 Then, if we pick up the substance:
25 "In respect of your right for documents concerning
161
1 the initial reasons for the arrest of your client, I can
2 confirm that two persons called Witnesses A and B made
3 statements identifying a number of people allegedly
4 involved in the incident. A total of six were arrested
5 and charged. In a consultation with Crown counsel these
6 witnesses indicated to senior Crown counsel that they
7 were not prepared to give evidence in court and the
8 Crown does not intend to rely on this evidence at the
9 trial of your client. The parts of the statements
10 relevant to your client were put to your client in
11 interview and your client was legally represented at all
12 such times. The Crown therefore considers that the
13 relevant passages of the statements have been disclosed
14 to you. The Crown considers that the remaining portions
15 of these statements are not relevant to an issue at the
16 forthcoming trial and, therefore, no duty of disclosure
17 attaches thereto."
18 So as late as October 1998 then, with the trial
19 coming up early in 1999, you were maintaining that the
20 tip-off allegation was not relevant to any issue at
21 trial. Is that right?
22 A. That's correct.
23 Q. You go on:
24 "Neither witness has made a statement or any other
25 document concerning their refusal to give evidence and
162
1 it is considered that counsel's notes attract legal
2 privilege and, therefore, no duty of disclosure exists."
3 How do you reconcile that with what you told me at
4 the outset of our questioning about not relying on
5 privilege?
6 A. Counsel's notes would be counsel's notes to me as
7 instructing -- in the place of an instructing solicitor,
8 and, therefore, would be privileged I wasn't referring
9 to the notes of interview at that point. I think that's
10 his note to me to say that that's what happened.
11 Q. "Neither witness has made a statement or any other
12 document concerning their refusal to give evidence and
13 it is considered that counsel's notes attract legal
14 privilege ..."
15 You must there, mustn't you, be referring to
16 counsel's notes relating to the way in which these two
17 witnesses declined to give evidence?
18 A. I believe I was referring to counsel's notes to us to
19 indicate what had happened in the case.
20 Q. Yes, and those notes showed that counsel believed that
21 Tracey Clarke was telling the truth. Is that fair?
22 A. I am not aware of what those notes are at this stage.
23 Q. Well, those notes arose out of, didn't they, the
24 consultation between counsel, Mr Kerr, and Tracey Clarke
25 and Timothy Jameson?
163
1 A. Yes.
2 Q. You told me if anything relevant came out of those, the
3 Keane test would apply and legal privilege wouldn't
4 obtain. Is that right? But here you are asserting
5 legal privilege.
6 A. Well, I think we are talking about two different things.
7 Q. Uh-huh?
8 A. I am talking about his note to the PPS to say that this
9 is what happened as a result of the interview and
10 I think I was asserting that that attracted legal
11 privilege as between an instructing solicitor and
12 a barrister.
13 Q. Are you using the word "notes" mistakenly there for
14 "advice"?
15 A. I suppose you could use the word "advice".
16 Q. I am using the word "advice", because that's what's
17 written at the top of it. Is that what you are
18 referring to when you say "notes"?
19 A. That's what I was referring to there.
20 Q. Uh-huh.
21 You also told me earlier on that officers of the DPP
22 would consulted with witnesses.
23 A. Yes.
24 Q. Does the same answer pertain there too, that if
25 a witness says something which is material or
164
1 potentially material to the defence, that legal
2 privilege would not be claimed?
3 A. Again, if something required disclosure, it would be --
4 disclosure would be facilitated by the means of
5 a statement being made by the individual police officer
6 who was there noting I was at a consultation and the
7 witness said the following.
8 I have also sometimes just disclosed the direct
9 quote from the witness in a letter. So there is
10 different ways of achieving that. We wouldn't disclose
11 the actual note unless there was some issue about it
12 that was raised then.
13 Q. All right. Can I take you now to your draft statement
14 on the .pdf at paragraph 15, which I think is on the
15 third page. Thank you very much.
16 As I say, this is the draft that was put to you.
17 You say at paragraph 15:
18 "Having spent a number of months repeatedly telling
19 Mr Monteith that we would not be disclosing these two
20 statements", that's of course A and B's, "it was
21 a little surprising to discover that counsel had then
22 agreed that we would, but it did happen. Counsel were
23 concerned about getting the case to go ahead. They were
24 not always as concerned as I would be with strictly
25 applying the law regarding disclosure."
165
1 Now, you took that out of the draft --
2 A. Yes.
3 Q. -- and your paragraph 15 does not say that, does it?
4 A. No.
5 Q. Actually, that's a perfectly good reflection of what you
6 said in your transcript, isn't it?
7 A. Yes. However, it was a general observation which was
8 not directly relevant to this particular case.
9 Q. Very well.
10 A. Obviously, as cases move to trial, it is in the
11 interests of all parties to get them on, and sometimes
12 from the judiciary and from counsel matters were -- the
13 strict law of disclosure was not applied and matters
14 were just given which strictly would not attract a duty
15 of disclosure. That was to facilitate the trial
16 progressing, but I am not saying that that's what
17 happened in this case.
18 THE CHAIRMAN: Leaving aside the possibility of any
19 redactions, I find it difficult to understand why on
20 a single reading it wouldn't be apparent that
21 Tracey Clarke's statement was relevant for the purpose
22 of disclosure.
23 A. Yes.
24 THE CHAIRMAN: It seems to me to be so obvious.
25 A. Yes.
166
1 THE CHAIRMAN: It goes to the credit of Atkinson.
2 A. It does, but at that stage it was an unsubstantiated ...
3 THE CHAIRMAN: That doesn't matter for disclosure purposes,
4 does it?
5 A. Well, the policy in respect of disciplinary proceedings
6 against police officers, the policy in respect of that
7 was that you had to carefully consider whether
8 an unsubstantiated or a hearsay application was
9 something which could be genuinely put to police
10 officers in the course of cross-examination or not.
11 THE CHAIRMAN: Forgive me. There is nothing in the Court of
12 Appeal 's decision in England in Keane to exempt police
13 officers from any of its ambit, is there?
14 A. No, obviously not.
15 THE CHAIRMAN: Then I don't understand how that principle
16 you just asserted could be maintained.
17 A. Well, I can understand that it is relevant obviously
18 that a police officer has disciplinary findings against
19 him or previous convictions, and, if they are relevant
20 to his credit, ie they are something to do with his
21 truthfulness or his behaviour as a police officer, then,
22 of course, they should be disclosed.
23 At this stage, and this was an early stage in the
24 disclosure process, I weighed up the fact that it was
25 an unsubstantiated allegation, that the main evidence in
167
1 the case clearly came from Constable Neill, that the
2 issues in the case hadn't been closely defined by myself
3 and Mr Monteith at this stage, and that my judgment was,
4 at this stage, that shouldn't be disclosed.
5 THE CHAIRMAN: There is a distinction, isn't there, between
6 unsubstantiated and worthless? An allegation may be
7 unsubstantiated but still be of value.
8 A. It may be. Until it is substantiated, however, we are
9 not -- it is not possible to say whether it is of value
10 or not.
11 MR UNDERWOOD: Is that the way -- I am so sorry. Is that
12 how you apply the Keane test; that you can have
13 an allegation of the most serious nature contained in
14 a DPP file which is attested to by half a dozen bishops
15 and you don't bother disclosing that to the defence,
16 however material it is, until those bishops have been
17 cross-examined at some other proceedings? Is that the
18 test?
19 A. Every disclosure decision is made in respect of the
20 test. That may be a situation whenever you would
21 consider that allegation to be substantiated, depending
22 on the quality, the credibility and the character of the
23 individuals who were making it.
24 Q. Right. So highly material then, in your conclusion not
25 to disclose, for you to have taken into account the fact
168
1 that Mr Kerr and Mr Davison briefed Tracey Clarke to be
2 telling the truth. Would you accept that?
3 A. That would have been part of the relevant consideration.
4 Q. And highly material then to tell the defence that?
5 A. The defence were aware of the allegation. I wanted to
6 make sure that an allegation that was relevant to
7 an issue at the trial, that was something that was going
8 to be pursued at trial, that bearing in mind it was
9 unsubstantiated, bearing in mind that Neill was the main
10 witness in the case, bearing in mind that the disclosure
11 process was on going, that was my view at that time.
12 THE CHAIRMAN: Where do we find in Keane any reference to
13 there being an exception to disclosure if an allegation
14 is unsubstantiated? We don't, do we?
15 A. There is no reference in Keane specifically to matters
16 of that nature. Edwards -- R v Edwards is the case in
17 which we deal with allegations against police officers
18 and it indicates that disciplinary proceedings against
19 police officers which are extant should be disclosed.
20 MR UNDERWOOD: "Should be", did you say?
21 A. Yes. That they hadn't been dealt with by way of
22 caution, for example, or that they had gone off the
23 record by virtue of the passage of time and that they
24 must be relevant to the issue.
25 I accept that an allegation of an attempt to pervert
169
1 the course of justice was, of course, relevant to
2 an issue of credibility. I am not suggesting that
3 that's not the case.
4 Q. Never mind whether you should or shouldn't have
5 disclosed things. We don't have any document which sets
6 out what you did disclose. Do you follow?
7 A. The only letter which does disclose the two statements
8 is the only document which I actually enclosed in
9 a letter to Mr Monteith, it appears. He did --
10 Q. So -- I am so sorry. Do go on.
11 A. He did go to the police station and inspect documents on
12 the non-sensitive schedule, as I understand it.
13 Q. The non-sensitive. It follows, does it, as a matter of
14 clear fact that the fact that the police had the
15 substantiating evidence of the telephone record was not
16 disclosed?
17 A. There is no record of me disclosing that. I am not in
18 a position to say whether counsel did or didn't disclose
19 that either prior or after the trial. There is no
20 record on our files as contained in the papers that
21 I have received.
22 Q. Disclosure was properly documented, wasn't it, as
23 a matter of course?
24 A. Any disclosure should be documented, yes.
25 Q. Let's have a look at the statement of Tracey Clarke that
170
1 was redacted at page [31471]. We can see that all names
2 have been redacted apart from John McAteer's name as the
3 member who received the statement on that page. If we
4 go over the page to [31472], we see names are redacted
5 down to the defendants' names who were set out as
6 Dean Forbes, Allister Hanvey, Stacey Bridgett, "Muck"
7 and Rory Robinson.
8 Then, if we go over the page to [31473], we get the
9 further redaction of names, and, of course, this part in
10 the middle which deals with what, as we now know, Hanvey
11 is said to have told Tracey Clarke about what Atkinson
12 told him. Again, you have redacted all the names. Yes?
13 A. Yes.
14 Q. Those were your redactions, were they, physically?
15 A. That usually would have been the practice. I can't tell
16 from the copy that it was definitely me, but that would
17 have been my practice.
18 Q. Can you tell us why you redacted that part?
19 A. I don't recall a specific discussion with counsel about
20 the disclosure of these statements. I am sure there was
21 one, because I wasn't aware prior to being told by the
22 defence that we had agreed to disclose them. I would
23 have spoken to them and confirmed the reason why they
24 were to be disclosed and then confirmed whether there
25 was any matters of sensitivity or potential personal
171
1 safety issues, and I have concluded then that the names
2 shouldn't be disclosed on the grounds of protecting
3 individuals' personal safety.
4 Q. If that is right --
5 THE CHAIRMAN: Did you consider the fact that there would be
6 not much use in this material if cross-examining counsel
7 didn't know which officer to aim at?
8 A. Well, I think Mr Monteith had already indicated that he
9 knew which officer was involved.
10 THE CHAIRMAN: In other words -- yes.
11 A. That's not a matter for me to disclose.
12 THE CHAIRMAN: But did you satisfy yourself that the defence
13 would be able to know to whom there were references in
14 these documents?
15 A. Yes, I think that the previous correspondence indicates
16 that they knew exactly who the allegation of --
17 THE CHAIRMAN: So they wouldn't be misled or left in
18 ignorance by the redactions. Is that what you say?
19 A. That would be my opinion, yes.
20 MR UNDERWOOD: Your paragraph 17 that we find in your
21 witness statement now at page [82028], or [82011] for
22 those on the other version, says:
23 "I have been asked whether there was a duty on us to
24 inform the police before disclosing documents to defence
25 counsel, in particular the statement of Witnesses A and
172
1 B, and whether we considered if doing so may pose a risk
2 to a person's safety. I would not have considered it
3 necessary to tell the police what was happening every
4 time a document was disclosed, primarily because in
5 these types of cases involving a police officer, Crime
6 Branch would ordinarily send the investigating officer",
7 overleaf, [82029], "or a representative along to the
8 court hearings and would be aware of what we were
9 proposing to disclose.
10 "Additionally, in this particular case the
11 statements were received from the police as statements
12 in evidence, and whilst I would have been content myself
13 that there was nothing within them which would obviously
14 anyone's safety at risk, I would not have felt the need
15 to inform the police of their disclosure. Had the
16 statements been included on the sensitive schedule
17 received from police, I would have immediately been more
18 cautious and may well have had discussions with the
19 police prior to disclosure. I do not remember which
20 course I adopted in relation to these statements."
21 Now, that's what was in the draft and which
22 reflected the transcript. What you have then added in
23 your signed statement is this sentence:
24 "However, as all the details identifying individuals
25 were edited from the statements, it is clear that I was
173
1 mindful of potential risk to individuals' safety."
2 You say that's clear, but it only became clear to
3 you when you signed this on Monday. Is that really
4 correct?
5 A. Well, as I indicated before, whenever I gave my
6 police -- gave my interview to Mr Stephens from which
7 the draft statement was prepared, I didn't have
8 an opportunity to see the redacted statements. So it
9 was only when I saw the redacted statement subsequently
10 that it became clear to me that the editing of the names
11 was carried out precisely for that purpose.
12 Q. You rationalise that, do you, from what you see by way
13 of the editing?
14 A. Yes. That's my conclusion there. However, as all the
15 details identifying individuals were edited from the
16 statement, it is clear that I was mindful of potential
17 risk. That appears to be my motivation for that
18 redaction.
19 Q. Okay. So what the defence were left with was this, we
20 can conclude, can we: they knew that Mr Atkinson had
21 been interviewed for assisting an offender in
22 September 1997. They didn't know who that offender was.
23 Is that correct? Hanvey's name was not included in the
24 interview of September 1997?
25 A. I don't recall whether it was or not. I take your word
174
1 for it.
2 Q. Take it from me they didn't know that. They didn't know
3 that it was Tracey Clarke -- as far as you are aware,
4 they didn't know it was Tracey Clarke who was making
5 that allegation. Indeed, you were anxious to avoid them
6 learning that. Is that right?
7 A. Yes. It was a matter of safety for the individuals.
8 Q. They didn't know that there were telephone records
9 substantiating what she said. We have agreed that, have
10 we?
11 A. I can see no evidence of that.
12 Q. They did not know, from you at least, that Tracey Clarke
13 was believed to be a witness of truth when she was
14 consulted with?
15 A. They didn't know that from me.
16 Q. Do you regard that as adequate disclosure?
17 A. I disclosed the allegation. It appeared to me that they
18 knew who the particular police officer was involved.
19 I believe they asked questions to that police officer at
20 the trial, though I wasn't present, and Mr Monteith did
21 not write back to me asking for details of who the names
22 were. So it was clear to me that he knew exactly
23 what -- which individuals were involved, because he most
24 certainly would have written back to me if he didn't.
25 Q. Well, expand on that. He obviously knew it was
175
1 Atkinson. When you say he obviously knew which
2 individuals were concerned --
3 A. Yes, Atkinson.
4 Q. -- do you mean he knew about Hanvey and Tracey Clarke?
5 A. Well, I'm not sure what questions were asked at the
6 trial. If he believed that I was holding information
7 which he needed for his trial, he most certainly would
8 have written back to me and asked for that information
9 and I assume then we would have had a discussion as to
10 whether I would be able to give that information as
11 well.
12 Q. It was really a matter for him then, wasn't it?
13 A. No, it wasn't a matter for him. I conducted disclosure
14 according to my understanding of the issues, potential
15 issues and the facts that were in my knowledge.
16 Q. How could you have reached the conclusion that you
17 needed to take Tracey Clarke's name out of it or
18 Hanvey's name out of it without talking to the police?
19 A. I assume I did talk to the police, or if not I did, then
20 Mr Kerr did or Mr McCrudden. This would have been --
21 the form of disclosure in this case would have been
22 agreed between us.
23 Q. The difficulty we have with this, I put to you, is this:
24 you don't know which counsel you discussed it with, do
25 you?
176
1 A. I have no idea now.
2 Q. You have no idea whether you discussed it with a police
3 officer. You are making assumptions, to be fair.
4 A. I can only say that my usual practice in relation to
5 statements which were clearly sensitive in a very
6 sensitive case is that I would have spoken with a police
7 officer, or counsel would have spoken with a police
8 officer and then with me.
9 I don't recall in this particular case, 12 years
10 ago, that I did or didn't have a particular interview
11 with a police officer.
12 Q. Would you have done any of that without keeping a record
13 of it?
14 A. That was the practice at the time.
15 Q. What was?
16 A. That when you made a -- consulted with counsel, you
17 didn't necessarily keep a record of what was decided.
18 The record was what was then sent out in the letter and
19 what was sent out in the redacted statements.
20 Q. And likewise when you consulted with police?
21 A. Yes.
22 MR UNDERWOOD: Thank you very much, Mr Burnside.
23 MR WOLFE: No questions.
24 MR O'HARE: No questions.
25
177
1 Questions from MR McGRORY
2 MR McGRORY: I have some questions, if I may.
3 Mr Burnside, you know I represent the family of
4 Robert Hamill.
5 A. Yes.
6 Q. Now, is it the case that when you were making this
7 decision in respect of the disclosure of the statements
8 of Witnesses A and B that you knew or did not know
9 whether or not the Complaints and Discipline interviews
10 had already been disclosed?
11 A. I don't -- I can't remember whether I knew that or not
12 at the time.
13 Q. No. Well, in fact, you told -- in your Inquiry
14 interview at page [7], bottom of page [6], going over to
15 page [7], when Michael Stephens asked you:
16 "The interviews of the four police officers, they
17 were disclosed to the defence before committal. Reading
18 from that letter, would you say ..."
19 Your answer to that was:
20 "I think he is referring to the tape-recorded
21 interviews of his client. I'm not aware of whether the
22 police officers' interviews were disclosed or not."
23 A. Yes, I think that letter does refer to the -- during the
24 course of the interviews of his client.
25 Q. But you are saying in 2008, when you were interviewed by
178
1 the Inquiry, you had no knowledge of whether or not the
2 C&D interviews were disclosed?
3 A. Well, I can't recall whether I'd any knowledge of that
4 at that stage.
5 Q. You see, what I suggest to you is that there is nothing
6 to support the view that, in fact, you were aware that
7 the C&D interviews had been disclosed?
8 A. Well, I think it's possible to -- there's no record on
9 the file that I was aware of that. I think that's all
10 I can say at this stage.
11 Q. In fact, your belief, when you were interviewed in 2008,
12 was that you had no knowledge of whether or not that was
13 done?
14 A. That was my belief, yes. Well, I can't recall the
15 position.
16 Q. We heard earlier today that, if it was done, it was done
17 by Mr Davison prior to the committal --
18 A. It could have been done by Mr Davison.
19 Q. -- at an entirely different stage in the disclosure
20 process. Isn't that right?
21 A. Yes, it could have been.
22 Q. Then moving forward to the sequence of events leading up
23 to the actual disclosure that you made, there is a very
24 considerable body of correspondence going on between you
25 and Mr Monteith?
179
1 A. Yes, that would be usual in cases at that time.
2 Q. In fact, I think you refer yourself in the Inquiry
3 interview to a bit of jousting going on between you and
4 him as to what he was going to get and not going to get.
5 A. Well, the position was that the -- the defence position
6 usually in these cases is that they ask for everything
7 to start with and then it becomes an issue of them and
8 us beginning to narrow the issues down as to what is
9 actually going to be relevant and material to issues in
10 the trial. That's in common law cases, and that's what
11 happened in this case.
12 Q. It would appear from the correspondence, I suggest, that
13 really you had a policy to tell him very little.
14 A. It wasn't a policy, no.
15 Q. In the sense that he keeps asking -- he keeps raising
16 the issue of Witnesses A and B. "I want these
17 statements", again and again and again. Do you recall
18 that?
19 A. He does ask in a series of letters, yes.
20 Q. Then you make a point to him that, "Well, in your
21 client's interviews the relevant portions of those
22 statements were disclosed, and, as far as we are
23 concerned, that's all you need to know."
24 A. I think my understanding of what I meant by that was
25 that the relevant portions of those statements relating
180
1 to the alleged involvement that those witnesses saw of
2 his clients was disclosed to him in his interviews.
3 I have no --
4 Q. Sorry. Had you something else to say?
5 A. No. That's okay.
6 Q. You see, at no time during the course of the
7 correspondence do you give any inclination, Mr Burnside,
8 that you have any other reason for not disclosing them
9 other than you think they are not relevant.
10 A. That's correct.
11 Q. That, in fact, was your view.
12 A. It was my view at the time of writing the letters.
13 Q. Then, of course, subsequently counsel comes to
14 a different view without discussing with you. Isn't
15 that correct?
16 A. It appears to be so, yes.
17 Q. In fact, Mr Monteith wrote to you on 21st December 1998.
18 The letter is at [31479], in the final paragraph of
19 which he says:
20 "Once again I ask for disclosure of the two
21 outstanding witness statements which the Crown have
22 failed to disclose to the defence."
23 Do you see that?
24 A. Yes.
25 Q. Then he tells you:
181
1 "Senior Crown counsel Mr Gordon Kerr QC advised",
2 and I suggest that is McCollum LJ, "on
3 13th November 1998 that he undertook to disclose the
4 said witness statement."
5 A. Yes.
6 Q. Now, dealing first -- then he goes on to say:
7 "Junior Crown counsel Mr xxxxxx", I would
8 suggest, "also made it clear that the said statements
9 would be disclosed when the case was mentioned on
10 16th December."
11 So twice the case is mentioned, once on
12 13th November and again on 16th December, and on both
13 occasions Crown counsel has indicated to the court,
14 obviously following protestations from defence counsel
15 about these two witness statements, that they will be
16 disclosed.
17 A. Yes.
18 Q. The identity of the judge here would appear to be
19 McCollum LJ, who was, in fact, to be the trial judge.
20 A. Well, I said in my statement I can't say --
21 Q. Let's presume it is McCollum LJ. So these are routine
22 pre-trial hearings to ascertain the readiness of the
23 case. Isn't that right?
24 A. Yes, I believe so.
25 Q. Now, of course, you had been resisting disclosure of
182
1 this up to now. Isn't that right?
2 A. That's right.
3 Q. There is no mention of anybody saying to the judge that
4 there are specific reasons concerning safety or any
5 other reason why these statements cannot be disclosed?
6 A. Well, I haven't seen the transcript of the hearing in
7 front of McCollum, so I don't know what arguments were
8 made in that regard, or even if there were any
9 arguments. It.
10 Is clear that counsel have come to a different view
11 than I have come to and it is clear that, following
12 discussion with counsel, I have then agreed with their
13 view. It may be that they have more intimate knowledge
14 of the case, and what was going on meant that their view
15 was different from mine.
16 Q. Yes, and with the greatest of respect to your position
17 within the Department of Public Prosecutions, counsel's
18 view, in terms of the conduct of the case and issues of
19 disclosure, is -- takes priority. Isn't that right?
20 A. Well, I think the prosecuting authority at the end of
21 the day has responsibility for disclosure.
22 However, counsel obviously have an intimate
23 knowledge of the case, intimate knowledge of discussions
24 they have had with the defence and hearings like this
25 which I would not have been at, and their view is given
183
1 a lot of weight.
2 Q. Prosecuting counsel has an overriding duty to the court
3 and to the defence --
4 A. That's right.
5 Q. -- to disclose any material to the defence which might
6 assist it?
7 A. That's correct, yes.
8 Q. That, in my respectful suggestion, trumps any view of
9 an official within the prosecutor's office?
10 A. Well, I would respectfully disagree with you,
11 Mr McGrory. There may well be matters, issues that
12 counsel is required to disclose which then can't be
13 disclosed because of security or other implications
14 which would then require a PII hearing, for example, or
15 something significant like that.
16 So simply because counsel indicates that a matter
17 should be disclosed does not automatically mean it is
18 disclosed.
19 Q. Was there a PII hearing?
20 A. There is no record of a PII hearing. I don't believe
21 there was one, because I don't recall it.
22 Q. So we are not talking about that situation then?
23 A. No. I think the case law states that prosecuting
24 counsel's views are vital and important for the reasons
25 we have said, but that the prosecuting authority
184
1 ultimately has responsibility for the conduct of the
2 case and, therefore, ultimately is responsible for
3 disclosure.
4 Q. But what happened was that Crown counsel, both junior
5 and senior, in two separate hearings undertook to
6 disclose those statements.
7 A. Yes.
8 Q. Then what happened is that they were not immediately
9 disclosed, but you wrote to Mr Monteith on 29th December
10 and said you were consulting senior Crown counsel
11 concerning those witness statements.
12 A. Yes.
13 Q. Then eventually, on 4th January 1999, you disclosed the
14 statements.
15 A. Yes.
16 Q. So obviously, then, the decision concerning the
17 redactions was taken between 29th December and
18 4th January?
19 A. Well, I mean, my letter to Mr Monteith was sent out on
20 the 29th. It may be that I had conducted -- there was
21 an ongoing process of discussion with counsel. I am not
22 sure when exactly the redactions were made, physically
23 made.
24 Q. What you say on 29th December is that you are consulting
25 with counsel.
185
1 A. It may have been an ongoing process is all I'm saying.
2 I don't know.
3 Q. Obviously, had the consultation finished and the
4 decision made to disclose -- or in the form of
5 a disclosure, then those statements would have been
6 enclosed on 29th December?
7 A. Yes.
8 Q. So one can conclude that you were still discussing it?
9 A. Yes.
10 Q. Then on 4th January, by then the discussions are
11 finished?
12 A. And the statements are disclosed, yes.
13 Q. Now, what were those discussions about? Can we take it
14 that since Crown counsel had already undertaken to the
15 court to disclose the statements, the discussions were
16 about the redactions?
17 A. Well, I would have discussed with counsel the reason for
18 the disclosure and been satisfied that they should be
19 disclosed, and there would have been discussions with
20 counsel about the form of the disclosure, ie the
21 redactions.
22 Q. Who made the redactions on the statements?
23 A. The usual process was that I would make those myself.
24 Q. Yes. Were those authorised by Mr Kerr?
25 A. I don't recall exactly my conversation with Mr Kerr
186
1 about this in the case or it may have been Mr McCrudden,
2 but the -- I certainly would have discussed with them
3 the concept of disclosure, the reason for disclosure and
4 the form of disclosure.
5 Q. You see, Mr Kerr has told us, Mr Burnside, that he
6 accepts that the identity of Reserve Constable Atkinson
7 as being the person accused in the statement of
8 Tracey Clarke of giving the information to whomsoever is
9 something which should have been disclosed.
10 Do you agree that statement of his this morning?
11 A. If that's his view, that's his view.
12 THE CHAIRMAN: He said they would need to know, whether in
13 the disclosure document or in some other way, and he was
14 satisfied that they did know. They, of course, had
15 their other source of information.
16 MR McGRORY: Indeed.
17 A. I understand they asked questions of the constable in
18 respect of this at the trial, so they must have known
19 something.
20 MR McGRORY: That's with hindsight and ex post facto the
21 decision on disclosure.
22 What Mr Kerr was saying to us -- and the Chair will
23 correct me if I'm wrong on this -- is that, as far as he
24 knew, the defence may have known from other information
25 the identity of the police officer. Do you understand
187
1 that?
2 A. Yes.
3 Q. I am suggesting to you that they did not and could not,
4 and, as far as you were concerned, you had no idea
5 whether they could have known who you were talking
6 about -- who Tracey Clarke was talking about in this
7 statement.
8 A. Well, my understanding from the earlier correspondence
9 was that they knew that the allegation was against
10 Reserve Constable Atkinson.
11 Q. That's not necessarily so in terms of the detail,
12 Mr Burnside. All they knew, all they knew, firstly, is
13 that Reserve Constable Atkinson was interviewed about
14 an allegation of assisting offenders.
15 What they did not know, because it was not disclosed
16 to Reserve Constable Atkinson in that interview, was
17 that Tracey Clarke, a former Crown witness who was
18 believed by the prosecution, gave detailed evidence that
19 Reserve Constable Atkinson had been phoning her former
20 boyfriend and keeping him posted on developments.
21 Now, those specifics are not known to the defence
22 I am suggesting to you
23 A. They clearly weren't known from what I disclosed to
24 them. That is correct.
25 Q. In order for them to tie the two in together, they would
188
1 have had to have been given this statement in a form
2 that revealed Atkinson's name. Would you agree with
3 that?
4 A. Well, they could have found out that information from
5 a number of different ways. It may be their own clients
6 knew about this.
7 Q. Is this how you viewed the duty of disclosure: tell them
8 so little that they might never notice that it is the
9 same person, but if they deduce it, so bad, but if they
10 don't, great?
11 A. Absolutely not.
12 Q. Well, is that not the effect of what you are saying,
13 that they may well have worked it out?
14 A. No.
15 Q. If you weren't trying to reflect them, why not just
16 reveal the name Atkinson? It made no difference to you.
17 A. The names were edited from the statement in
18 consideration of security issues relating to the
19 individuals on the statement.
20 Q. I put it to you that's simply not true, Mr Burnside, and
21 the reason I am putting it to you it is not true is that
22 nowhere have you previously stated until the revised
23 statement that we got today that security issues were
24 something you thought about?
25 A. Well, of course, security issues were something
189
1 I thought about. This was a sensitive and difficult
2 case. The individuals involved had a right to be
3 protected, if necessary, and that was the decision that
4 I took in respect of the editing.
5 My view is it is quite clear from the editing that
6 the names were, I viewed, as a sensitive matter.
7 Q. You have steps open to you if you feel, firstly, under
8 the Keane test the defence really ought to know that
9 Reserve Constable Atkinson is alleged by a witness to
10 have done these things specifically. Then, secondly,
11 "Oh, we have security issues. We have to do something
12 about that."
13 Now, what I am suggesting to you is, if those steps
14 were taken, then you make an application to another
15 judge. Isn't that correct?
16 A. The statements were disclosed with the names edited.
17 I considered that to be for security reasons when the
18 statements were disclosed. I assume that I talked to
19 Mr Kerr and to police about that or one of us spoke to
20 police about that. It is clear that that was the agreed
21 form of disclosure at that time.
22 Q. You see --
23 THE CHAIRMAN: Suppose Mr Monteith had written to you and
24 said, "We want the names, please", what would have had
25 to be your next step?
190
1 A. Obviously I would have had to speak to counsel again.
2 If it was not possible, for security reasons, to
3 disclose the name, we would have had to have
4 a PII application.
5 THE CHAIRMAN: Yes, and if the judge rules in the
6 PII application that they must be disclosed, then you
7 have to drop the case, do you not, or else disclose the
8 names?
9 A. Either disclose the names or drop the case.
10 THE CHAIRMAN: Yes.
11 MR McGRORY: The truth of it is no application was either
12 considered or made. Isn't that correct?
13 A. As far as I am aware, no application was made in this
14 case. It wasn't required at this stage because we were
15 disclosing what we had disclosed. We had not had
16 a further request for any further details at that stage.
17 Q. In paragraph 15 of your signed statement, when you say,
18 "The allegation against Reserve Constable Atkinson was
19 disclosed, though the names were edited out", that's one
20 of those sentences which was added in by you. It is at
21 page [82028] I would think.
22 A. Well, in fairness, Mr McGrory, I think I am entitled to
23 add sentences to my own statement.
24 Q. Yes, but this one is not accurate, is it?
25 A. It is entirely accurate.
191
1 Q. "The allegation against Reserve Constable Atkinson was
2 disclosed, though the names were edited out."
3 The problem is, I am suggesting to you, all that was
4 disclosed is information that someone who might have
5 been a policeman gave some information and advice to one
6 of the suspects, but nobody knows which one. In fact,
7 it might not even have been a suspect, because the name
8 is blanked out as well.
9 A. Well, all I can say in that regard is that that was
10 the -- the names were edited for security purposes. If
11 it was the case that further details were required and
12 that the defence side were not aware of who those people
13 were, then they could have written again to us.
14 As I understand it, they asked questions of Reserve
15 Constable Atkinson at the trial, so they must have known
16 it was him.
17 Q. Well, it's a matter for another day.
18 Is it the case, Mr Burnside, that you didn't tell
19 Mr Kerr about the redactions
20 A. I didn't tell him?
21 Q. Did you make these redactions on your own without
22 telling him?
23 A. No. Because of the manner this disclosure came about,
24 I must have discussed this with Mr Kerr.
25 Q. He approved the redactions?
192
1 A. I don't recall the conversation in which I discussed it.
2 We would have agreed the format for the disclosure with
3 Mr Kerr and Mr xxxxxxx
4 Q. But the precise redactions, was he aware of them? Can
5 you be sure?
6 A. The format of the discussion would have been discussed
7 with counsel.
8 Q. To discuss the format then, you have to be suggesting
9 that you had a conversation with Mr Kerr along the
10 lines, "Well, I have to disclose this now, this
11 statement, but I am going to redact all the names,
12 Atkinson's and the other names"?
13 A. I don't know what form the discussion took at that
14 stage, whether we sat down and went through the
15 statement line by line, or whether we had a general
16 terms discussion to say, "The police indicate there are
17 security issues about the names."
18 In any event, all the disclosed material would have
19 been put on the court file and Mr Kerr would have been
20 briefed with it.
21 THE CHAIRMAN: Are we entitled, Mr McGrory, to take the view
22 that an advocate of integrity would not continue in
23 a case if he knew that disclosure fell short of what was
24 needed, taking into account his knowledge of what the
25 other side knew?
193
1 MR McGRORY: I think so, sir.
2 THE CHAIRMAN: Well, you see, Mr Kerr said, "Well,
3 I realised the other side knew the names". That's what
4 he said this morning in answer to me, or this afternoon.
5 MR McGRORY: I will have to consider that, sir. My
6 understanding of Mr Kerr's evidence is that he has no
7 recollection of signing off on the precise format of the
8 disclosed statement.
9 THE CHAIRMAN: No, but he recognised that it was important
10 that the defence knew the name of the officer.
11 An advocate who knows that, if he is doing his duty to
12 the court, would not allow the case to go on with him
13 still prosecuting unless he was satisfied that there
14 was, in fact, nothing the defence needed to know; in
15 other words, that they had, in whatever way, a knowledge
16 of the names. That must surely be the position of
17 an advocate?
18 MR McGRORY: It is the position of an advocate.
19 THE CHAIRMAN: You see, I think one has to remember,
20 whatever shortcomings there may be in the disclosure
21 process, counsel is there, if you like, as a safeguard,
22 isn't he, to make sure in the end it is done properly?
23 MR McGRORY: Yes, but if I understand it, Mr Kerr's evidence
24 falls short of telling us whether or not he knew --
25 whether or not he had the view that the defence knew the
194
1 identity.
2 THE CHAIRMAN: Well, you may want to look at the transcript
3 on that. Others, I hope, will correct me if I am wrong
4 in what I say.
5 MR McGRORY: Indeed.
6 THE CHAIRMAN: Thank you.
7 MR McGRORY: Thank you.
8 MR GREEN: Just one matter.
9 THE CHAIRMAN: Yes.
10 Questions from MR GREEN
11 MR GREEN: I ask questions on behalf of Marc Hobson,
12 Mr Burnside.
13 I just want to ask you one question about your
14 evidence earlier today. You said to the Inquiry in
15 answer to a question which was:
16 "Question: You rationalise that, do you, from what
17 you say by way of the editing?"
18 Your answer was:
19 "Answer: Yes, that's my conclusion. However, as
20 all the details identifying the individuals were edited
21 from the statement, it is clear that I was mindful of
22 the potential risk. That appears to be my motivation
23 for that redaction."
24 There, Mr Burnside, you were dealing with why it was
25 in Tracey Clarke's statement you withheld the name of
195
1 Reserve Constable Atkinson.
2 Do you remember that?
3 A. Yes.
4 Q. I think I am right in saying that the effect of your
5 evidence today is that you did that because you thought
6 that was sensitive. Is that right?
7 A. I did that because there was a potential security risk
8 to the individuals.
9 Q. In other words, a sensitive matter?
10 A. The matter was sensitive.
11 Q. Was that your call to make? Because, can I ask you
12 this: apart from issues of sensitivity, this was
13 a matter -- that is the identity of Reserve Constable
14 Atkinson -- that called for disclosure. Isn't that
15 right?
16 A. That was the conclusion that we came to, yes.
17 Q. The only thing that prevented that matter from being
18 disclosed was the matter of sensitivity, which you
19 appear, according to your evidence, to have made the
20 decision yourself. Isn't that right?
21 A. Well, as I said in my earlier answers, I think it was
22 a decision that was made between the prosecution team,
23 including the police. They would advise us on matters
24 of sensitivity.
25 Q. Ought you not to have referred that matter to the court?
196
1 A. I only need to refer something to the court for
2 a PII hearing if I am not prepared to disclose it.
3 I was prepared to disclose the statement in the format
4 it was disclosed. So I don't need to go to the court.
5 Q. Well, that can't be right, Mr Burnside. You are
6 deciding -- first of all, there are two decisions you
7 have made.
8 First of all, if I am right, that the identity of
9 Reserve Constable Atkinson is a material matter that the
10 defence are entitled to know about. Am I right?
11 A. The decision was to disclose the allegation without the
12 name of Reserve Constable Atkinson.
13 Q. I am obviously not asking you the question clearly
14 enough, Mr Burnside. The first stage in your
15 decision-making process is that the name of Reserve
16 Constable Atkinson is a material matter that the defence
17 are entitled to know and you have already said that that
18 would be the case.
19 A. No. I have said that the allegation that was made was
20 the issue that was being disclosed. Clearly the name of
21 Reserve Constable Atkinson was removed from that
22 statement. So, therefore, the allegation was the
23 important issue at this stage.
24 Q. Was the important issue not also the identity of the
25 person, bearing in mind he is the person who is going to
197
1 be giving evidence in the forthcoming trial?
2 A. As I understood it, the defence knew the identity of the
3 individual concerned in any event. It wasn't up to me
4 to take a risk on his security or identity however they
5 got to know it from other disclosure or whatever.
6 Q. This is disclosure by osmosis that you have been talking
7 about earlier today?
8 A. No, that's not correct.
9 Q. Because there is not any document, as you have already
10 said, that categorically states that the defence were
11 made aware of the identity of Atkinson.
12 A. No, but it is clear from their questions at trial that
13 they knew about this evidence.
14 Q. Are you saying then that the identity of Reserve
15 Constable Atkinson was not a material consideration? It
16 was simply the allegation --
17 A. That's what it was.
18 Q. -- against an unidentified police officer that was
19 relevant?
20 A. That was what was disclosed in --
21 Q. I know that's what was disclosed. I am interested in
22 your thought process in the disclosure thinking that was
23 going on at the department.
24 Now, clearly, the information being given to the
25 defence that a police officer is mentioned in
198
1 a statement by Tracey Clarke and is supposed to have
2 called a suspect in a murder investigation, generally
3 speaking that wouldn't be of any interest to anyone,
4 save for the connection between that police officer and
5 the trial that a person is due to undertake. Isn't that
6 right?
7 A. It is my understanding that the defence were aware of
8 the identity of the police officer and they used that
9 information in the course of the trial to cross-examine
10 the police officer. I disclosed the nature of the
11 allegation against that individual.
12 Q. You don't think that you really ought to have gone to
13 the court in order to keep that matter sensitive from
14 the defence?
15 A. It may well have been, as the Chair indicated earlier,
16 that if there had been a challenge as to the identity,
17 that would have been the next stage in the process.
18 Q. I am going to suggest to you, Mr Burnside, that the
19 identity as well as the substance of the allegation
20 against Mr Atkinson -- but his identity was material and
21 ought to have been disclosed to the defence and that
22 anything which fell short of both of those, that is his
23 identity and what it is alleged he was up to, if that
24 was to be kept from the defence, it could only have been
25 done so with an application for a public interest
199
1 immunity certificate from the disclosure judge.
2 A. That wouldn't be the position, no.
3 MR GREEN: Thank you.
4 Questions from MR EMMERSON
5 MR EMMERSON: Can I ask, first of all, Mr Burnside, that you
6 be shown [82011], paragraph 14 of your witness
7 statement? I am working from the unsigned document, but
8 it makes no difference, I am told, to the content.
9 SIR JOHN EVANS: They are different.
10 MR EMMERSON: I think the signed and unsigned versions are
11 the same, but there was an earlier draft statement where
12 the words were different. Yes, I see Mr Underwood
13 nodding. So this document is identical to the document
14 that was subsequently signed.
15 You indicate in paragraph 14 that having learned
16 that Mr Kerr and then Mr McCrudden had given
17 an undertaking in court that the documents or the two
18 statements would be disclosed, you say:
19 "On review of the issues, I concurred with counsel's
20 commitment to disclose the statements."
21 Now, when you say, "I concurred with counsel's
22 commitment to disclose the statements", are you
23 suggesting there you agreed with counsel's assessment of
24 the relevance and therefore disclosability of the
25 material, or that merely you agreed to honour the
200
1 commitment he had made? What is the position there?
2 A. I concurred with counsel's views as to the requirement
3 to disclose.
4 Q. Does it follow from that, therefore, that you accepted
5 that up until that point the view you had been taking
6 was wrong?
7 A. The view that I had previously taken, in light of the
8 subsequent developments in the case, and in counsel's
9 view, was wrong, and I agreed that my earlier refusal to
10 disclose those in the light of what counsel was now
11 saying was incorrect.
12 Q. Just to be clear, it was not so much developments, was
13 it? Nothing had happened to change the situation. You
14 just accepted -- have I got it right -- that you were
15 wrong? You had been wrong up to that point.
16 A. I had been wrong not to disclose the matter up to that
17 point.
18 Q. Get the position clear then. So counsel had given you
19 advice that you had made a mistake and this document
20 needed to be disclosed. You accepted that advice,
21 agreed with the basis and the reasons as explained to
22 you, and then you made a decision therefore to disclose
23 it. Is that the position, just so we can clear the
24 decks?
25 A. My assessment changed and I agreed with counsel that
201
1 this was a document that required to be disclosed.
2 Q. I think you said to us a little earlier on that
3 an allegation that one of the witnesses to be called had
4 tipped off one of the murder suspects would clearly be
5 relevant to that individual's credibility. Is that
6 right?
7 A. That would be -- it would be different from
8 an allegation that he was speeding or something,
9 a trivial matter. This was something which was
10 relevant.
11 Q. Have I got it right that you told us earlier on and you
12 agree it would be relevant?
13 A. I did, yes.
14 Q. If it is relevant, it is prima facie disclosable?
15 A. Yes.
16 Q. Is that why you agreed with Mr Kerr's view that you had
17 been wrong about this up until that point?
18 A. Yes.
19 Q. So now we have reached the position where, having had
20 advice from counsel, you perhaps, if I can put it this
21 way, realised the error of your ways up until this
22 point. Correct?
23 A. I reassessed the position I had taken earlier.
24 Q. We may be bandying words here, but the bottom line is
25 you had accepted the advice you had been given that this
202
1 was clearly disclosable information?
2 A. Yes.
3 Q. We now move on to the basis on which these redactions
4 came to be made. It has been suggested to you, I think
5 by Mr McGrory, that you have made up the suggestion that
6 these were redactions made to protect the identity of
7 the statement-makers; in other words, this is not
8 something you had said before. It is a late invention
9 of some sort. I think that's the suggestion that has
10 been put to you.
11 Could we just look at [31475], please? This is the
12 other document that was disclosed under cover of the
13 same letter: namely, the statement of Witness B. You
14 presumably read that statement?
15 A. Yes.
16 Q. Because obviously, if what you have told us so far is
17 correct, it is likely you made these redactions.
18 A. Yes.
19 Q. Obviously Witness B made no allegation relevant to the
20 tipping-off allegation in relation to Hanvey and
21 Atkinson?
22 A. No.
23 Q. But you seem to have done precisely the same thing in
24 relation to Witness B.
25 A. Yes, I have.
203
1 Q. In particular, one can see, as one goes through, that
2 these are redactions which cover either individuals'
3 names or police names directly likely to lead to the
4 identification of the statement-maker. Is that right?
5 A. That's correct, yes.
6 Q. If you just turn to the next page, [31476], there are
7 just a couple -- I think the firmly rectangular
8 redaction that appears on that page is an Inquiry
9 redaction on the redacted document. I just make that
10 comment because that's not on the --
11 THE CHAIRMAN: We do it more neatly.
12 MR EMMERSON: That, again, as it happens, is of a location,
13 but the other two here I think are your redactions of
14 individuals. Correct?
15 A. Yes.
16 Q. Individuals who, if you knew their names as the reader,
17 you would knew who the statement-maker was, because they
18 are individuals who the statement-maker says was with
19 him at particular points in time. Correct?
20 A. Yes.
21 Q. There is no redactions on [31477], but on [31478], if we
22 look at the lengthy piece of the two-line redaction at
23 the end, you have redacted the clothing that the
24 statement-maker says they were wearing on the night in
25 question. Correct?
204
1 A. Yes.
2 Q. Why would you have done that?
3 A. Because this is an anonymous witness and, if their
4 clothing was identified, people who were there then
5 would be able to identify who that was.
6 There was an issue about the security of that
7 individual witness.
8 Q. Just so that we are clear, this redaction exercise,
9 Mr Burnside, even if it came rather late in the day,
10 even if the disclosure came too late in the day, it was
11 a redaction exercise in your mind which was about
12 protecting the identities of A and B. Is that correct?
13 A. Yes.
14 Q. Now, as to whether or not the identity of Atkinson was
15 known as an individual to the defence who was accused as
16 a police officer of tipping off, if we could just look
17 at [18277], please, this is a document we have already
18 looked at, but I don't think you have seen today. This
19 is a letter on 23rd September to you or rather to your
20 section, the Belfast Crown Court section --
21 A. Yes.
22 Q. -- from Mr Monteith. I just want to pick up paragraph 3
23 in particular. If you just like to look at that for
24 yourself for a moment, perhaps read it over to yourself.
25 A. Yes.
205
1 Q. Were you proceeding in your disclosure exercise on the
2 understanding that the defence were aware that Atkinson,
3 and Atkinson alone amongst the police witnesses, had
4 been interviewed and was, therefore, suspected of
5 assisting an offender and withholding information?
6 A. Well, it indicates there that the defence knew that they
7 had all been interviewed.
8 Q. Well, we know that only one of them had been interviewed
9 in respect of that. They had all been interviewed in
10 respect of neglect?
11 A. Neglect, yes.
12 Q. What was your understanding, Mr Burnside -- and you had
13 read the file you say?
14 A. Yes. Well, I understood that the particular allegation
15 of perverting the course of justice was made against
16 Atkinson.
17 MR EMMERSON: Thank you.
18 MR UNDERWOOD: I don't think there is any purpose in more
19 leading. I won't ask any more. Thank you.
20 THE CHAIRMAN: It seems to me, as to the stage at which you
21 ask for a PII hearing, there is no hard and fast rule
22 about it. There are some cases where prosecuting
23 counsel will immediately say, because of the volume and
24 so forth, "I can't discuss this with the defence.
25 I must go straight to the judge and get his ruling".
206
1 There may be other cases in which it is not necessary to
2 seek a ruling, even though you have not disclosed names
3 until it is apparent that the disclosure you have made
4 so far is not acceptable.
5 MR UNDERWOOD: Yes.
6 THE CHAIRMAN: At that stage, then if you can't reconcile
7 the difference, you do have to go to the judge.
8 MR UNDERWOOD: Quite so. In discussion with my friend
9 Mr McGrory your Lordship adverted to the possibility
10 there might be discussion between counsel. It is quite
11 commonplace, of course, that one will test the water in
12 order to see whether there is something that needs to be
13 put to a judge. Without that knowledge, and also, of
14 course, without the schedules, it is quite difficult to
15 see where we are.
16 THE CHAIRMAN: Thank you, Mr Burnside.
17 MR UNDERWOOD: There is one more witness who is quite short.
18 I don't know whether you want to have a break. It is
19 a matter for you, of course.
20 THE CHAIRMAN: We will have a short break, a quarter of
21 an hour.
22 (4.05 pm)
23 (A short break)
24 (4.20 pm)
25
207
1 MR MICHAEL KENNETH MATTHEWS (sworn)
2 Questions from MR UNDERWOOD
3 MR UNDERWOOD: Good afternoon, Mr Matthews.
4 A. Good afternoon.
5 Q. My name is Underwood. I am Counsel to the Inquiry.
6 I have a very few questions for you and it is possible
7 that one or two others will follow after that. All
8 right?
9 A. Fine.
10 Q. May I ask you your full names, please?
11 A. Michael Kenneth Matthews.
12 Q. If I ask you to look at page [80768], you will see
13 a three-page document there. Can I ask you just to keep
14 your eyes on the screen while we flick through it?
15 A. Okay.
16 Q. Is that a statement you signed for us as long ago as
17 June 2006?
18 A. It is indeed.
19 Q. Are the contents true?
20 A. They are.
21 Q. Because we have a different notation there, I will get
22 you to identify the documents you refer to. Going back
23 to [80768], on the final line you say:
24 "A copy of that direction is now produced and shown
25 to me marked 'MKM1'."
208
1 That's an interim direction of 16th January 2002?
2 A. That's correct.
3 Q. May we look, please, at page [68346]? Is that the
4 interim direction you are referring to there?
5 A. That's correct, yes.
6 Q. Thank you. Then over the page, although I think on one
7 reading it may be obvious -- page [80769] I mean --
8 paragraph 5, four lines from the bottom of that:
9 "There is a document dated 25th October", and it
10 gives a page reference, "which refers to a draft
11 correction that was produced by me. A copy is now
12 produced and shown to me marked 'MKM2'."
13 Just for the avoidance of doubt, can we look at
14 page [20021]? Is that the document you are referring to
15 there as MKM2?
16 A. Yes, it is.
17 THE CHAIRMAN: Sorry, what number is this?
18 MR UNDERWOOD: [20021], sir.
19 THE CHAIRMAN: Thank you.
20 MR UNDERWOOD: Go back to your witness statement, if we may,
21 at [80769]. In paragraph 6 you say in the final
22 lines and the first line of paragraph 7 that two Queen's
23 Counsel were advising, Carl and Gerald. We also know
24 that Gordon Kerr was involved in the various matters
25 arising out of the death of Mr Hamill. Were you aware
209
1 of that?
2 A. Yes.
3 Q. If I can get the sequence right, it is that Mr Kerr
4 advised on the murders and then prosecuted Mr Hobson.
5 A. That would be correct, yes.
6 Q. Carl Simpson -- sorry, and then advises on the neglect
7 file, whether there is a case to bring against any of
8 the four officers in the Land Rover. Were you aware of
9 that?
10 A. I wasn't aware of that.
11 Q. Carl Simpson then prosecutes the McKees?
12 A. Yes.
13 Q. And, indeed, advises on matters such as deferring the
14 sentence of Andrea McKee?
15 A. Yes.
16 Q. Then Gerald Simpson advised on the prosecution of the
17 related prosecution of the Atkinsons and Hanveys. Is
18 that right?
19 A. That's correct.
20 Q. Is there anything in the change of counsel beyond sheer
21 happenstance?
22 A. Not that I am aware of.
23 Q. Then if we look at your paragraph 7:
24 "Gerald Simpson QC advised on the prosecution of
25 Atkinsons and Hanveys. He was of the view that without
210
1 better evidence of Allister Hanvey's coat, which was
2 allegedly burned, there could be no reasonable prospect
3 of a conviction of Thomas and Allister Hanvey. The
4 police had pursued that line of enquiry as far as they
5 could, but Tracey Clarke was unwilling to give evidence
6 and, without her, it would fail. Following that,
7 I prepared a draft direction to prosecute Robert and
8 Eleanor Atkinson and Kenneth Hanvey."
9 Now, there is some debate about a question of law on
10 the various charges that were laid here and I don't want
11 to engage with you what the law is so much as what you
12 understood the law to be.
13 In looking at prosecuting the McKees and Robert and
14 Eleanor Atkinson and the Hanveys for offences to do with
15 perverting the course of justice, did you consider that
16 you had to establish the content of the tip-off
17 telephone call?
18 A. No. The existence of the call itself and the fact that
19 it was -- a cover-up story had been invented around it.
20 Q. So as far as you were concerned, an act which has
21 a tendency to pervert the course of justice or
22 a conspiracy to pervert the course of justice relating
23 to that had only to establish that there had been either
24 an agreement or a misleading statement which diverted
25 the police in their enquiries. Is that right?
211
1 A. Yes. The police were, in fact, diverted from their
2 enquiries by the explanation given about the phone call.
3 Q. So what you were looking for was either an untrue
4 statement to the police or an agreement to make untrue
5 statements to the police which would have diverted the
6 course of the police enquiries?
7 A. Yes.
8 Q. As far as you were concerned, you didn't need to
9 establish that the proper outcome of those enquiries
10 would have been to uncover an unlawful or illegal
11 tip-off. Is that right?
12 A. I don't understand. "An unlawful tip-off"?
13 Q. Well, the content of the telephone call, in other words,
14 You didn't need to establish what the content of the
15 telephone call was in order to prove the conspiracy to
16 pervert the course of justice?
17 A. I don't think so, no.
18 Q. Well, I suggest that would follow from the fact of what
19 you have at the beginning of paragraph 7: namely, that
20 Mr Simpson advised and was of the view that without
21 better evidence of the coat there could be no reasonable
22 prospect of a conviction of Thomas and Allister Hanvey.
23 A. Yes.
24 MR UNDERWOOD: Thank you. That's all I wanted to ask you.
25 Thank you very much.
212
1 MR WOLFE: Nothing arising.
2 MR O'HARE: I have no questions, sir.
3 MR McGRORY: No questions.
4 MR McCOMB: No questions.
5 MS DINSMORE: No questions.
6 MR UNDERWOOD: I think there is probably nothing arising.
7 THE CHAIRMAN: Thank you Mr Matthews.
8 MR UNDERWOOD: Thank you Mr Matthews.
9 A. Thank you.
10 (The witness withdrew)
11 MR UNDERWOOD: I am pleased to say we have a fairly early
12 conclusion to the day.
13 THE CHAIRMAN: Yes.
14 MR UNDERWOOD: There is one matter I could usefully spend
15 a moment or two on.
16 You will recall that when Tracey Clarke gave her
17 evidence, I put to her an extract from what was, in
18 fact, a report by a Dr Kinch. There was an assertion in
19 that to the effect that, when admitted for treatment
20 earlier this year, Miss Clarke had said to an SHO that
21 she had seen her boyfriend in essence kicking
22 Robert Hamill. Her evidence on that was, "No, I didn't
23 say that. That report of what I said is wrong".
24 We have, not unnaturally, and with her consent
25 I have to say, got the record of that. She is right and
213
1 the record is wrong. At page [75379] we have the
2 document which, as far as we can tell, was the on
3 admission record. We can see it is, "History and
4 physical examination. Date of admission: 12/2/09."
5 Then if we go down to the substance of the
6 manuscript part:
7 "Involved in murder enquiries (12/13 years).
8 "States lied to police at that time.
9 "'Saw boyfriend kicking Robert Hamill'.
10 "Mood has been poor since.
11 "Boyfriend on and off - 'wasn't boyfriend at this
12 time.'
13 "After initial police statements.
14 "Apparently Police Service got aunt to bring patient
15 to police.
16 "States police suggested names.
17 "Patient went along with this."
18 I should say, if we go above this, if we zoom out,
19 you can see this is present history given to a staff
20 nurse as opposed to the SHO.
21 There is one other document that has been given to
22 us out of this exercise. It is at page [75381]. Again,
23 if we can zoom that part:
24 "I didn't want to have to deal with it.
25 "I've lived with it every day for 12 years.
214
1 "What the police did to me that night when I was
2 brought into the police station."
3 Necessarily, these are not written by lawyers and
4 therefore are quite short. I apprehend they tolerably
5 clearly make it apparent that, contrary to what Kinch
6 said, she was telling people on admission that she had
7 lied to the police, she hadn't seen her boyfriend kick
8 anybody, that her aunt had taken her to the police
9 station, that the police had suggested names to her and
10 that she had trouble living with what the police had
11 done to her that day.
12 Sorry. Would you forgive me? We may have to try to
13 type up a version of this that we can all agree on.
14 Going back to 75389 the consensus of opinion
15 behind me is:
16 "Apparently Police Service got aunt to bring patient
17 to police."
18 I hope that deals adequately with that issue
19 THE CHAIRMAN: It does. Thank you.
20 MR UNDERWOOD: I apprehend we have a long day tomorrow and
21 a 10 o'clock start may be advisable.
22 THE CHAIRMAN: Very well. 10 o'clock.
23 At some stage, I shall need to listen to submissions
24 about what is required by the conspiracy to pervert the
25 justice. So far I have only seen what one might call
215
1 the charge sheet. It is not the charge sheet, but I am
2 very interested to see the particulars of the offence in
3 the indictment.
4 MR UNDERWOOD: We will get the indictment, if we don't
5 already have it lurking somewhere.
6 THE CHAIRMAN: But the question is whether it is sufficient
7 to show that there was an agreement to give a false
8 account in relation to something the police wanted to
9 investigate or whether the proper view is that the
10 police investigation is not itself a course of justice
11 but may be relevant to it, but then, when one looks at
12 the relevance, it is necessary to connect what was being
13 investigated with the conspiracy.
14 MR UNDERWOOD: Yes.
15 THE CHAIRMAN: That would mean, for practical purposes in
16 this case, to have evidence either showing or from which
17 can be inferred the cause or rather the content of the
18 telephone call. Those are the two opposing views.
19 MR UNDERWOOD: Yes.
20 THE CHAIRMAN: As I read his evidence, Mr Simpson put the
21 second test, but then went on to speak as though the
22 first test -- sorry -- he put forward the first test,
23 but then went on to speak as though the second was the
24 appropriate test, saying that the evidence was such,
25 when one put it together, to establish that, and he
216
1 said, I think in answer to you, that that was the test
2 that I think he had applied.
3 MR UNDERWOOD: Yes.
4 THE CHAIRMAN: So there are two views he puts forward in his
5 statement, as I read it from the transcript.
6 MR UNDERWOOD: Of course, Mr Matthews commented on precisely
7 that. I will canvass the views of my friends about what
8 degree of issue there is about this and how it might
9 most efficiently be dealt with.
10 THE CHAIRMAN: I think interested parties, that is parties
11 who are interested in this aspect of the matter, will
12 all be entitled to make their submissions both to help
13 me and in the interests of their own clients.
14 MR UNDERWOOD: Thank you.
15 THE CHAIRMAN: Thank you.
16 (4.40 pm)
17 (The hearing adjourned until 10.00 am tomorrow morning)
18
19 --ooOoo--
20
21
22
23
24
25
217
1 I N D E X
2
3
MR ROGER DAVISON (recalled) ...................... 1
4 Questions from MR UNDERWOOD ............... 1
Questions from MR McGRORY ................. 29
5 Questions from MR MALLON .................. 42
Questions from MR GREEN ................... 45
6 Questions from MR O'CONNOR ................ 49
Questions from MR McCOMB .................. 50
7 Questions from MR EMMERSON ................ 52
8 MR GORDON KERR (recalled) ........................ 62
Questions from MR UNDERWOOD ............... 62
9 Questions from MR ADAIR ................... 78
Questions from MR McGRORY ................. 92
10 Questions from MR McCOMB .................. 110
Questions from MR GREEN ................... 117
11 Questions from MR EMMERSON ................ 123
Further questions from MR UNDERWOOD ....... 136
12 Questions from THE PANEL .................. 138
13 MR GEOFFREY STEPHEN BURNSIDE ..................... 140
(affirmed)
14 Questions from MR UNDERWOOD ............... 140
Questions from MR McGRORY ................. 178
15 Questions from MR GREEN ................... 195
Questions from MR EMMERSON ................ 200
16
MR MICHAEL KENNETH MATTHEWS (sworn) .............. 208
17 Questions from MR UNDERWOOD ............... 208
18
19
20
21
22
23
24
25
218
