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Hearing: 17th September 2009, day 65
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PUBLIC INQUIRY INTO THE DEATH OF
ROBERT HAMILL
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Held at:
Interpoint
20-24 York Street
Belfast
on Thursday, 17th September 2009
commencing at 10.00 am
Day 65
1 Thursday, 17th September 2009
2 (10.00 am)
3 MR UNDERWOOD: Morning, sir. I am sorry about the slight
4 delay. We had a slight technological hitch.
5 May I have Mr Junkin, please?
6 MR WILLIAM JUNKIN (sworn)
7 Questions from MR UNDERWOOD
8 MR UNDERWOOD: Good morning.
9 A. Good morning.
10 Q. My name is Underwood and I am Counsel to the Inquiry.
11 I have a very limited number of questions for you --
12 A. Okay.
13 Q. -- and then some others may have some follow-ups. Can
14 I ask you your full names first, please?
15 A. My full name is William Ronald Junkin.
16 Q. Can we just check that what we have as your statement
17 is, in fact, your statement. At page [81943] on the
18 screen there is a document that runs to nine pages. If
19 we just scroll through the nine pages briefly, perhaps
20 you could keep your eye on it?
21 A. Yes.
22 Q. Is that your statement?
23 A. Yes, I think so.
24 Q. Are the contents true?
25 A. Yes. May I just add something that I have learned in
1
1 the meantime to paragraph 17?
2 Q. Uh-huh. This is page [81948]?
3 A. I now know I was asked by the Director in July 1999 to
4 do other things in the case. The relevant document is
5 [18251].
6 Q. Thank you very much indeed.
7 A. I was not aware of that at the time of the interview.
8 Q. Understood. In fact, since you signed this statement
9 off, quite a lot of other information has come to light
10 about the way in which the files were dealt with, so
11 I don't need to trouble you about a lot of this.
12 What I want to ask you about is some overarching
13 things, if I may. We don't need to look at documents
14 for this.
15 A. Okay.
16 Q. We know that in early 1998 what we are calling a neglect
17 file came up to the DPP from the RUC concerning the
18 complaint made by Miss Hamill about four officers
19 perhaps not getting out of the Land Rover --
20 A. Yes.
21 Q. -- and, in addition, what we are calling a tip-off
22 allegation made against Reserve Constable Atkinson --
23 A. Yes.
24 Q. -- that he rang Mr Hanvey up. We know that so far as
25 the tip-off allegation was concerned, that was based on
2
1 hearsay: namely, a statement of Tracey Clarke about what
2 Hanvey had told her, that it had some support by way of
3 telephone record, but that itself had been explained
4 away by what we are calling an alibi.
5 A. Yes.
6 Q. Are you familiar with that?
7 A. Yes, in general terms, yes.
8 Q. Inevitably, it may be thought it was concluded that
9 there was not enough evidence to prosecute Mr Atkinson
10 on the basis of the combination of hearsay and a bit of
11 substantiation, particularly in the face of what
12 appeared to be an alibi?
13 A. Yes.
14 Q. You would agree with that conclusion, I take it.
15 A. Yes.
16 Q. What I want to ask about is, in general, and also by
17 reference to that, the way in which the DPP operated in,
18 say, 1999 in relation to files like that. Specifically
19 this: where you had allegations such as that, would any
20 consideration have been given to directing any further
21 investigations?
22 A. If it was apparent that further enquiries had to be
23 made, then yes.
24 Q. So it would need to be apparent on the face of the crime
25 file, would it?
3
1 A. Yes.
2 Q. So if, for example, there is a reference to -- I don't
3 know -- the need for forensic science and there is no
4 forensic science report, something like that would be
5 obvious?
6 A. Yes.
7 Q. What degree of autonomy, as it were, did the DPP have
8 about this, though? Was there any question that the DPP
9 could look at a file, think, "That's deeply suspicious.
10 Why don't we get the RUC to go back and check -- I don't
11 know -- for the existence of a grey jacket?" something
12 like that?
13 A. It is possible it is the kind of thing one would look
14 at, one would discuss. It would depend on the
15 circumstances of the individual case.
16 Q. But not out of the question then, that the --
17 A. If there was an obvious enquiry that one had to make,
18 no, it would scarcely be out of the question. If there
19 was a witness whose name appeared, for example, and had
20 not been interviewed, one would say, "What about X?
21 Have you taken a statement from X?" or some such.
22 Q. But it really had to be fairly apparent on the face of
23 the document, did it, that something had not been done
24 that ought to be done?
25 A. Well, if it was not apparent, one would find it very
4
1 difficult to understand how you can investigate it.
2 Q. You didn't, for example, consider whether further -- for
3 example, if an alibi is put forward and the police have
4 checked it out, it wouldn't occur to you to ask the
5 police to go and see whether they could do further
6 enquiries on that alibi?
7 A. Only if the enquiry is necessary or obvious. If
8 an investigation has taken place, there are no obvious
9 lines of enquiries, one would leave it at that.
10 MR UNDERWOOD: That's very kind. That's all I wanted to ask
11 you about. Thank you. There may be some more
12 questions.
13 MR ADAIR: No questions.
14 MR McGRORY: No questions.
15 Questions from MR EMMERSON
16 MR EMMERSON: Mr Junkin, you mentioned your involvement in
17 July 1999 and you gave reference to a document
18 page [18251]. Can I just, first of all, ask that that
19 be brought up and then just ask you some further
20 questions about that part of your role?
21 We can take this reasonably shortly. In -- and
22 I think it was 20th July that this -- maybe we can see
23 on the following page. Could we just look at the second
24 page [18252]? Yes, the date appears there on the second
25 page.
5
1 A. Yes.
2 Q. Did the Director write to you following a communication
3 that he had received from xxxxxxxxx's solicitors
4 in which they had asked for a review of the no
5 prosecution decisions in relation to Lunt and Bridgett
6 and, more generally, explanations for the no prosecution
7 decisions in respect of the other suspects?
8 A. Yes. It is apparent from the document.
9 Q. You were asked, were you, to supervise a review of those
10 decisions?
11 A. I was, yes.
12 Q. Was that because you hadn't been in any way involved in
13 the decisions yourself?
14 A. Yes.
15 Q. Did you then delegate the task of conducting the review
16 itself to xxxxxxxxxxx --
17 A. I did.
18 Q. -- who was then Senior Assistant Director? Is that
19 correct?
20 A. I did.
21 Q. Again, was Mr xxxxxxx appointed because he was independent
22 of the decision-making itself?
23 A. Yes.
24 Q. Can we look, please, at [18321]? There are other
25 documents on file which show the material that Mr xxxxxxx
6
1 had available to him, but if we could just scroll
2 through this document, which is about four pages long,
3 on 13th August, did Mr xxxxx report to you about the
4 conclusions that he had reached on reviewing those
5 prosecution decisions?
6 A. He did, yes. That's the document I see before me.
7 Q. Thank you very much. Can we go back to [18321], please?
8 Can I summarise the conclusions, and obviously, if
9 anyone wants to look at them in more detail, then that
10 can be done.
11 First of all, did Mr xxxxx conclude in his report to
12 you that the decision not to use the statement of
13 Tracey Clarke under Article 3 was correct?
14 A. He did, yes.
15 Q. Did he conclude that the direction to abandon the
16 prosecution of Wayne Lunt following the change in stance
17 from Mr Prunty was correct?
18 A. Can we go to the next page of the document?
19 Q. Yes, please.
20 A. Yes, he did.
21 Q. Thank you. Did he deal also with public order offences
22 in relation to Mr Lunt? We can perhaps go to the
23 following page in relation to that [18323], at
24 paragraph 15 --
25 A. Yes.
7
1 Q. -- and, again, agree with that conclusion?
2 A. Yes.
3 Q. In relation -- perhaps if we go back to that page in
4 full -- to Mr Bridgett, can I summarise it in this form:
5 was he in clear agreement with the decision that there
6 was insufficient evidence to prosecute for murder?
7 A. Yes.
8 Q. But if we just turn over the page, please, and pick it
9 up at paragraph 26, did he take the view that in
10 relation to affray the evidence was more evenly
11 balanced?
12 A. Yes. So he has written.
13 Q. We can see there he said:
14 "However, it was disjointed. Overall I agree with
15 the conclusion that there was no reasonable prospect of
16 a conviction for affray, although I would acknowledge
17 that the decision was a fine one."
18 A. Yes.
19 Q. Thank you very much. Now, in relation to that, you were
20 satisfied that that was an independent judgment
21 reviewing the merits of each of these decisions?
22 A. I was, yes.
23 Q. On 24th August -- can we look at [17606], please -- did
24 you then report to the Director?
25 Do you have that document in front of you?
8
1 A. Yes, but it is redacted. I am not sure to whom it is
2 addressed.
3 Q. I think you can take it from me that the unredacted
4 version of this document indicates that you are
5 reporting there -- that's your signature at the bottom.
6 A. It is indeed, yes.
7 Q. -- to the Director on the outcome of the review.
8 A. Yes.
9 Q. Because if you note, you begin by referring to "your
10 note dated 13th August". Do you see that?
11 A. Yes, I do.
12 Q. That, of course, is the document we have looked at.
13 I do apologise --
14 A. I think that's --
15 Q. I am so sorry. I have misled you --
16 A. I think that's Mr xxxxxx's document. I think you are
17 mistaken.
18 Q. You are absolutely right. My note says "Director", but,
19 in fact -- I have just been handed the unredacted
20 document. You are absolutely right. This is
21 a memorandum from you to Mr xxxxx in response to --
22 A. That's why I ...
23 Q. You are absolutely right. I do apologise.
24 A. Thank you.
25 Q. But in relation to that, you say in the second
9
1 paragraph:
2 "I have considered all the internal papers,
3 including the advices of counsel and the attendance
4 notes of consultations ... the evidence on file", and so
5 forth.
6 Can we take it then that in digesting Mr xxxxxx's
7 conclusions, you tested them against the base material
8 itself?
9 A. I would have done. I have no recollection of the actual
10 events, but if that's what I wrote, that's what I did.
11 Q. So all of the source material that he considered would
12 follow, would it?
13 A. Yes.
14 Q. And also, of course, the judgment in the Hobson trial?
15 A. Yes.
16 Q. You say:
17 "I am advised that nothing of evidential value
18 arises from the interviews after caution of [the named
19 suspects], save for the denial by Bridgett as being
20 sighted by police as one of the crowd."
21 Now, does it follow from that that you had not
22 considered the substance of the interviews themselves?
23 A. I would take it so, yes.
24 Q. So apart from that, as far as you are aware, you had
25 read all of the papers?
10
1 A. Yes, that's what I would take from that.
2 Q. You say:
3 "I have weighed the effect of that denial in the
4 context of the other evidence ... as to the role played
5 by Bridgett.
6 "I have concluded that the decisions as to
7 prosecution or no prosecution which had been reached
8 upon the evidence available and the directions ..."
9 Your conclusion was they were correct. Is that
10 right?
11 A. Yes.
12 Q. So in relation to that, would you have been, so to
13 speak, the decision-maker in the review process, if
14 that's the right way of putting it?
15 A. I would reckon so, yes.
16 MR EMMERSON: Thank you very much.
17 MR UNDERWOOD: Nothing arising. Thank you.
18 THE CHAIRMAN: Thank you. You are free now to go, sir.
19 A. Thank you very much.
20 MR UNDERWOOD: Thank you very much.
21 (The witness withdrew)
22 MR UNDERWOOD: We have a slight change of order. We go to
23 Mr Morrison, I understand.
24 THE CHAIRMAN: Yes.
25
11
1 MR ROBERT IVOR MOSS MORRISON (sworn)
2 Questions from MR UNDERWOOD
3 MR UNDERWOOD: Good morning, Mr Morrison.
4 A. Morning.
5 Q. My name is Underwood.
6 A. Yes.
7 Q. I am Counsel to the Inquiry. I have a few questions for
8 you. It may well be there will be some supplemental
9 questions after.
10 A. Sure.
11 Q. May I ask you your full names, please?
12 A. Robert Ivor Moss Morrison.
13 Q. If we look at a document that starts at page [82013] and
14 runs to 12 pages, I just want you to keep your eyes on
15 the screen until we get to the twelfth page to see if it
16 is your statement.
17 Is that your witness statement?
18 A. Yes, it is.
19 Q. Is it true?
20 A. It is.
21 Q. Thank you. I want to ask you something, first of all,
22 about the quality of the evidence to be given by
23 Andrea McKee in the proposed prosecution of Mr Atkinson
24 and others. I want you to look, if I may, at the final
25 witness statement which she signed on that on
12
1 30th October 2002. It starts at page [20297]. Are you
2 familiar with that?
3 A. I am, yes.
4 Q. If we look at page [20302], and pick it up halfway down
5 the page, here she is referring to the events in 1997.
6 About ten lines down towards the right-hand side there
7 is a sentence that starts later in the year ..."
8 Are you with me?
9 A. Yes.
10 Q. "Later in the year, Michael", that's her husband,
11 Michael McKee.
12 A. Yes.
13 Q. "... told me that Robert Atkinson had spoken to him
14 about the incident. This had happened one night when
15 they were both out together. On his return home,
16 Michael told me that Robert had asked him to cover the
17 phone call to the Hanveys. Michael told me that Robert
18 had made another phone call but that he could cover that
19 phone call himself. Michael told me that he had asked
20 Atkinson about why he had made the phone call. He said
21 that Atkinson told him that he had rang him to try and
22 help him and that he had realised now that he should not
23 have done it. Michael told me that Atkinson had told
24 him that he had made the phone call to tell him to get
25 rid of his clothes. This was the first time that I knew
13
1 that Atkinson had admitted" overleaf, [20303], "making
2 the call to Hanvey."
3 I want to miss the first quarter of this and pick it
4 up from a line, again about ten lines down on the
5 right-hand side:
6 "On one occasion ..."
7 Are you there? The second line in this highlighted
8 section on the right-hand side.
9 A. Yes.
10 Q. "On one occasion after that, but before Michael and
11 myself made statements to the police, Michael and myself
12 were over at Robert Atkinson's house. We went there to
13 sort out the cover story for the phone call
14 Robert Atkinson made to Allister Hanvey the morning
15 after the fighting in Portadown. Robert and
16 Eleanor Atkinson were both present.
17 "Robert Atkinson led the discussion and he said that
18 the story would be that Michael and I had been staying
19 at their house overnight and he suggested that the call
20 could be covered by Michael saying that he was ringing
21 because of his concern for Tracey Clarke. It was Robert
22 who thought out this story about Tracey Clarke.
23 Robert Atkinson said to me that I would have to confirm
24 that I had heard Michael on the telephone.
25 "Robert Atkinson mentioned about a second phone call
14
1 that he had made but that he had that covered. I do not
2 know anything about the second phone call, about his
3 reason for making it or his story to cover it. We were
4 only there that evening to get the story right and we
5 went home after that. At some point after that I was
6 aware that Michael and Eleanor went to Portadown Police
7 Station to make statements. I was aware that
8 Robert Atkinson was being interviewed again but I was
9 not asked by Robert to go to the police station."
10 So that was the height, as I understand it, of the
11 evidence from Andrea McKee about, firstly, what she knew
12 about the content of the telephone call, and, secondly,
13 about the way in which the agreement to cover it up was
14 formulated. Is that fair?
15 A. I think that is fair.
16 Q. So there is no admission by Atkinson to her of the
17 content of the telephone call. Is that right? We can
18 go back, if you like.
19 A. I accept that from you. That may be correct.
20 Q. I am interested in this question: was the reasoning in
21 prosecuting the Atkinsons and Hanveys for the conspiracy
22 to pervert the course of justice or doing an act that
23 tended to do that, that you didn't have to prove the
24 content of the telephone call?
25 A. I would say that's right, that the content of the call
15
1 didn't necessarily have to be proved. It was necessary
2 to prove that there was a conspiracy, there was
3 an agreement to concoct a story about a telephone call,
4 about this telephone call, which was clearly to do with
5 the Robert Hanvey murder -- Robert Hamill murder, and
6 I don't think that the content of the phone call was
7 necessarily relevant at the time. I am not quite sure.
8 Q. Okay, because, obviously, on the face of that, the only
9 way you could have established that would have been to
10 adduce evidence from Michael McKee. Would that be fair?
11 A. Certainly Michael appears -- from what Andrea said in
12 the first passage that you read out, Michael appears to
13 have known much more about this than Andrea did.
14 Q. He was refusing to assist, wasn't he?
15 A. He was.
16 Q. Thank you. I want to move on now to the events that led
17 to the unravelling of the prosecution. Can we look at
18 your note of the adjournment on 22nd December of 2003?
19 It is at page [34061]. First of all, the question is:
20 is this your note?
21 A. Yes, it is.
22 Q. I have been reading what I think it says to a number of
23 witnesses. Would you mind telling us what it says?
24 A. "Principal prosecution witness Andrea McKee unable to
25 travel from Wrexham, Wales because her 2-year-old son
16
1 has mumps and swollen testes.
2 "Adjourned to 2nd January 2004 for production",
3 I think that probably is, I am not quite sure
4 Q. Either "production" or "presentation".
5 A. "... presentation of certificate.
6 "To be relisted.
7 "Crown applied for 16th February.
8 "Date suitable to all is 8th March.
9 "Fixed for 8th March 2004."
10 Q. Thank you. Perhaps there is something you can help us
11 with on this. We know from the police constable who
12 spoke to Andrea McKee --
13 A. Yes.
14 Q. -- that Andrea McKee appears to have said that her child
15 had mumps as opposed to suspected mumps.
16 A. Yes.
17 Q. Christine Smith, when she gave evidence to us, said her
18 recollection was that she was told, and therefore told
19 the court, that it was suspected mumps.
20 Can you recall whether the court was told that it
21 was mumps or suspected mumps?
22 A. I believe it was told mumps.
23 Q. Right.
24 A. Because that is the information that I got from the
25 police. That's the information that the detective --
17
1 woman detective got from Andrea.
2 Q. Can you give us an understanding of what was going on
3 with these two dates, 8th March and 2nd January? What
4 was expected to happen on 2nd January?
5 A. The defence were sceptical, shall we say, about Andrea's
6 reasons for not travelling. I mean, they made that
7 scepticism quite clear, but they were reasonably -- they
8 were sympathetic, if, indeed, her child had been so ill
9 that she was unable to travel, but they wanted evidence
10 of that. So the case was adjourned, although I would
11 describe it as a conditional adjournment.
12 It was adjourned, first of all, to 2nd January in
13 order that we should be able to produce evidence, as we
14 expected to be able to do, in line with the information
15 that we had received from her and that we had submitted
16 to the court.
17 Q. Was any thought given to what would happen if you could
18 not do that?
19 A. Well, at that time, we expected to be able to do it, so
20 I don't think that a lot of thought would have been
21 given at that time. It certainly would have caused me
22 problems which we would have had to consider and deal
23 with whenever that happened.
24 Q. I am just interested in your word "conditional".
25 A. Yes.
18
1 Q. What would have happened -- think yourself back into
2 December 2003 -- in your view, on 2nd January, if it
3 turned out that you couldn't come up with that evidence?
4 A. Well, the reality of the situation is that we couldn't
5 come up with evidence which was consistent with what she
6 had said.
7 Q. No. I am asking you to think yourself into
8 22nd December and why you are saying it was conditional.
9 A. It was conditional because we didn't have that evidence
10 at court and the defence wanted that evidence. We had
11 to see what would transpire. The magistrate obviously
12 was concerned about the progress of the case, wanted to
13 progress the case, but again was sympathetic to her
14 situation.
15 If we had, on the 2nd, said, "Sorry, we have no
16 evidence at all", then I think it is very unlikely that
17 the magistrate would have stopped the case at that
18 stage, but he would have said, "This has to go on on
19 8th March. This matter has to go on. This is a serious
20 matter that we have been given specific information
21 about her reasons for not travelling, and you have been
22 unable to produce any evidence about that".
23 Q. Thank you. Again, I want to test the feel at the time.
24 You have written in here:
25 "Adjourned to 2nd January 2004 for production [or
19
1 presentation] of certificate."
2 A. Yes.
3 Q. In fact, Miss Smith told us that her own note had used
4 the word "certificate".
5 A. I think "certificate" was a shorthand way of describing
6 what we would expect to have been satisfactory written
7 evidence.
8 Q. Right. Then we know that what you were presented with
9 was a statement by a GP, which we can see at
10 page [34042]. Let's have a look at that.
11 A. Yes.
12 Q. If we can highlight the manuscript text. It is the GP
13 who sets out his place of work and his qualification and
14 then on the third line says:
15 "I confirm that on 1st December 2003 [the child]",
16 take it from me, "was brought to see me when I diagnosed
17 an ear infection and possibility of mumps as well. He
18 was prescribed appropriate treatment. He further
19 consulted my partner on 22nd December 2003 when an ear
20 infection both ears was again diagnosed."
21 A. Yes.
22 Q. Now, first of all, the difficulty with that is only
23 shows one visit to the GP before the day Mrs McKee was
24 due to turn up. Is that fair?
25 A. It's fair. It's one visit and it's three weeks before
20
1 the court date.
2 Q. Yes. So that's a problem that you would have recognised
3 on seeing that, I take it?
4 A. That's one problem, yes.
5 Q. The other problem is that it doesn't say "mumps". It
6 says "possibility of mumps". Is that right?
7 A. That's right.
8 Q. But -- I am so sorry. Do go on.
9 A. He also doesn't mention swollen testicles. Of course,
10 since this was three weeks before, I wouldn't have
11 expected it to mention that the child had a high
12 temperature or danger of fitting, that sort of thing,
13 which had certainly been mentioned to the woman
14 detective.
15 Q. But what it does show is that there was an ear infection
16 on 1st December and again on 22nd December.
17 A. It does.
18 Q. Would you have regarded it as a reasonable inference
19 from that that the child might have a high temperature?
20 A. I don't know.
21 Q. Would you have regarded it as a reasonable inference
22 from a GP diagnosing the possibility of mumps that the
23 child might have had swollen testicles?
24 A. No.
25 Q. Why not?
21
1 A. Because first of all, I think it is something he would
2 have noticed. It is a condition which is very unusual
3 in children.
4 Q. What is, swollen testes or mumps?
5 A. Swollen testes connected with mumps is very unusual in
6 children under 10.
7 Q. So if you have a diagnosis of the possibility of mumps,
8 does that not then by inference suggest that the GP saw
9 swollen testes?
10 A. No, definitely not. The opposite. Sorry, not the
11 opposite. If he had seen swollen testes, I think he
12 would have been concerned, because it is a very unusual
13 condition in children of that page.
14 Q. Because it suggests mumps?
15 A. No.
16 Q. What does it suggest -- what's your qualification for
17 this?
18 A. I have no qualifications whatsoever. Like yourself,
19 I have done some research on the matter. I have no
20 other way of presenting this information, but you have
21 asked me, "Does it suggest mumps?" I am saying, as far
22 as I am aware, it doesn't suggest mumps.
23 Q. When you say you have researched it, have you researched
24 it since the time we are talking about?
25 A. Yes.
22
1 Q. So, at the time, what did it suggest to you?
2 A. At the time, it suggested some level of illness and that
3 her child was unwell, but at the same time, I had to
4 take into account the fact that the first visit to the
5 doctor was on 1st December. Since then, the woman
6 constable had spoken to Andrea, who had --
7 Q. I am going to come to that. At the moment I am just
8 concerned with what you were told as at the date of this
9 certificate -- rather, this statement being presented to
10 you. Right?
11 A. Yes.
12 Q. Can we move on to see what happened next? Page [58455],
13 to give context to what you were just about to tell me.
14 If we look down on the entry there for 30th December,
15 this is, as you say, the policewoman:
16 "Police contacted Andrea in relation to the medical
17 treatment received by her son. She stated that", take
18 it from me that's the GP, "had called at her home on the
19 evening of 11th December 2003 and had prescribed
20 antibiotics and nose drops. She also stated that on
21 Friday, 19th December 2003 she had telephoned the
22 Pendine Park out-of-hours clinic at night because of the
23 child's high temperature. She states that she was told
24 to him give Calpol and to phone back in half an hour.
25 She did this, and, as the child's temperature had not
23
1 come down, she and her partner had taken the child to
2 Pendine Park clinic where they saw a lady doctor."
3 That was communicated to you at some point around
4 there, we take it. Is that fair?
5 A. That -- I am not certain whether it was communicated to
6 me before 2nd January that the way in which the
7 Pendine Park issue had arisen -- I don't know. I'm not
8 sure whether you said it was the policewoman who spoke
9 to Andrea on 30th December. I am not sure now that is
10 actually the case.
11 Q. All right.
12 A. I am not sure who spoke to her on 30th December.
13 Q. Okay. What we now know at least, and I think you now
14 know, is that following on from that GP's statement,
15 which only recorded a visit on 1st December, prior to
16 the 22nd, she was seen again and what she said was,
17 "Well, look, the GP came to see me on 11th December,
18 and, what's more, I was concerned about a high
19 temperature over the weekend and about Calpol and went
20 to Pendine". Yes?
21 A. That's apparently what she said, yes.
22 Q. We then know what you get is page [34055]. This,
23 I think, was copied to you, wasn't it?
24 A. I believe it was, yes.
25 Q. It's a fax from CID at Wrexham:
24
1 "DI. Please find statement from", again it is the
2 GP. "Sorry for the delay - but he's not as keen on
3 keeping records as I thought.
4 "Re: the statement from Pendine GP office - the
5 afternoon shift will visit when they open at 6pm
6 tonight - and fax any relevant statement to you."
7 A. Yes.
8 Q. The first thing there is, as at the end of December,
9 they go back to the GP on this question of the home
10 visit on 11th December and find the GP's records are not
11 as they should be, to put it mildly.
12 A. Yes.
13 Q. Then that attaches what we see at page [59853],
14 a further statement of 30th December. Second line:
15 "In furtherance to my previous statement regarding
16 [the child], I can now also confirm that the named
17 patient was visited at his home by myself following
18 a request from his mother to the surgery for a doctor to
19 attend. The child was suffering from ear infection and
20 possibility of mumps as well. I recall prescribing the
21 patient antibiotics for his illness. This visit took
22 place on 11th December 2003."
23 You did get that, I take it, did you?
24 A. Yes.
25 Q. So the position was that the GP's records were
25
1 inadequate and that, when taxed on that, Mrs McKee came
2 up with two things: firstly, there was a home visit;
3 and, secondly, Pendine. What she said about the home
4 visit was true?
5 A. Apparently so.
6 Q. So what you now have, as of the end of the year, is that
7 what she said about GP's visits was at least accurate in
8 terms of there being consultations. Is that fair?
9 A. Apparently so.
10 Q. And that you have a run, if you like, of diagnoses from
11 1st December through 22nd December: ear infection and,
12 certainly on the first two, the possibility of mumps.
13 Correct?
14 A. Yes.
15 Q. And antibiotics?
16 A. Yes.
17 Q. Would that have told you at the time this was a child
18 with a high temperature?
19 A. Not necessarily. As you say, I don't have any medical
20 experience.
21 THE CHAIRMAN: I imagine it is a simple thing for a mother
22 to take a child's temperature.
23 A. I imagine it is.
24 MR UNDERWOOD: Would it have conveyed to you the concept of
25 a child of two with an ear infection over the course of
26
1 a month nearly, which required her to have three GP
2 visits, that this was a child who was worrying the
3 mother?
4 A. Yes. Yes. But as opposed to that, why did she not tell
5 the police officer on 19th December that she was worried
6 about the child? Indeed, whenever she spoke to the
7 police officer on the 21st, why did she not say, "We had
8 a terrible time over the weekend. We had to bring the
9 child to a clinic on the Friday night, take her in the
10 car all the way over across Wrexham to have him looked
11 at".
12 Q. I want to be very fair to you, Mr Morrison.
13 I appreciate you are being defensive in this way by
14 being critical of Mrs McKee at this remove, because you
15 know --
16 A. Sorry, I am not being critical of her -- I mean, that
17 she didn't look after her child. I think she did. I am
18 being critical about what she has said in speaking to
19 the police and to ourselves about this matter.
20 Q. No, I follow that. That's why I am saying I want to be
21 fair to you about you being so defensive about this.
22 Is that the attitude you had in late 2003/early 2004
23 towards her?
24 A. No. My attitude, certainly on 22nd December, was that
25 I was concerned and I wanted to keep the matter moving
27
1 as well as possible, but my expectation was that we
2 would receive satisfactory medical evidence about the
3 child and consistent medical evidence, evidence that was
4 consistent with what she had told us.
5 Q. From what I am understanding from you, you didn't at the
6 time know whether the diagnosis of the possibility of
7 mumps was or was not consistent with swollen testes. Is
8 that right?
9 A. I would have expected that that would be mentioned.
10 Q. But we know this is a doctor who doesn't even bother
11 keeping a record of a visit. What did you think about
12 that?
13 A. That's unfortunate.
14 Q. Well, it is not unfortunate, is it? It goes to the
15 quality of the GP's record-keeping, does it not?
16 A. It does.
17 Q. Yes. So why do you expect a GP who doesn't even bother
18 to keep any record of a visit to record what is, in
19 fact, something associated with the possibility of
20 mumps?
21 A. As I've said, I don't want to give medical evidence, but
22 I think if you research the matter, you'll find that
23 this condition is extremely rare in children of that
24 age.
25 Q. Okay.
28
1 A. I think, frankly, if you ask my opinion now, I believe
2 that Andrea made it up.
3 Q. I am not asking your opinion now. I am asking what you
4 thought at the time. We will come to your opinion now.
5 I know you are very anxious to tell us why Mrs McKee
6 should never have been advanced as a witness, but can we
7 please --
8 A. That's not true. I was perfectly happy to advance her
9 as a witness at the time.
10 Q. Why have you been researching mumps?
11 A. I think that's a silly question.
12 Q. Do you?
13 A. It certainly is, because I have been trying to inform
14 myself of the circumstances, any of the circumstances
15 surrounding this matter.
16 Q. Not to defend yourself against the decision you made?
17 A. So that I was well-informed for this hearing, not to
18 defend myself. Clearly I want to support that decision,
19 because I believe that the decision was right.
20 Q. Okay. So as of 2nd January when the certificates were
21 due to be, or whatever it was supposed to be were due to
22 be given to the defence, why did the matter not go back
23 to court with the witness statements?
24 A. I think I have explained that in my statement.
25 Q. Tell us.
29
1 A. Right. First of all, the statements that I had, and
2 which I may say some of which I had only got that -- the
3 morning of the court, because, remember, this was the
4 first day back after the New Year break. There had been
5 the Christmas break. I only got the -- as far as I am
6 aware -- that may not be right. I may have got the
7 second statement from Dr xxxxx before that, but
8 certainly I didn't get the information about Pendine
9 until the morning of the court.
10 Firstly, the evidence that I had was not, as far as
11 I could see, fully consistent with what we had told the
12 court.
13 Secondly, the issue of Pendine had been raised.
14 I had evidence -- I had been told, rather, that Andrea
15 had been there on 19th December. That was potentially
16 very, very important. It may well have dispelled any
17 doubts that there were about the consistency of the
18 doctor's evidence. So I would have been very keen to
19 actually bring evidence from Pendine.
20 On the other hand, I knew that there was a doubt
21 about Pendine, because I had a statement from, I think
22 it was -- was it a Dr xxxxx -- Dr xxxxx I had
23 a statement from him saying she had basically never been
24 there. This was a matter which needed further
25 investigation. It was my hope, and perhaps expectation,
30
1 that the police would, in fact, find that she had been
2 there, that this would provide strong and consistent
3 evidence with what we had told the court on
4 22nd December.
5 I could not -- I couldn't try to rely on the
6 statement of Dr xzxxxxx without mentioning Pendine,
7 because that was a matter which really had to be
8 disclosed. I think it would have been unfair to the
9 defence not to disclose that there were other enquiries
10 being made about it. I couldn't rely on that.
11 I also knew by that time that Andrea had received
12 a threatening letter, and this was a threat allegedly
13 coming from a terrorist organisation. I could not let
14 the case appear to be proceeding with her appearing to
15 be willing and able to give evidence. To do that would
16 have signalled perhaps to this organisation that she was
17 still a willing witness and could have put her life in
18 danger.
19 So there was no -- the information that I had in
20 front of me on that morning with that information, it
21 would have been -- well, one way would have been
22 reckless, but it just wasn't a professional decision
23 I could make to try to proceed at that stage.
24 Q. Can I just ask you about the threat?
25 A. Yes.
31
1 Q. At that stage, of course, nobody had investigated it.
2 A. No. Well, certainly the police had been out to see her
3 about it. The Wrexham police had got the letter --
4 no -- yes, they had got the letter. Of course they had.
5 They had been speaking to her. Obviously, as soon as
6 the letter arrived, you will see from the journal of the
7 Detective Chief Inspector that they were immediately
8 taking all proper steps to deal with whatever level of
9 threat there might be.
10 Q. Okay, but I just want to ask you about that, though.
11 Let's say you had had adequate medical evidence in your
12 view by 2nd January. Are you saying that the existence
13 of that threat would have concerned you about signalling
14 to the court and everybody else that she was ready to go
15 ahead as a witness?
16 A. It may have done. I mean, at the time I had to take
17 a number of factors together and what I have already
18 told you is the situation. I don't think there is any
19 real point now in dividing up the factors and saying,
20 "I would have done this", or, "I would have done that".
21 I had a number of factors to deal with and I dealt with
22 them as best I could at that time.
23 Q. Okay. If we go back to page [58455], it is that passage
24 of 30th December 2003. As I understand it, this was the
25 height of what Andrea McKee was saying about Pendine
32
1 before anybody went to visit her on 9th January 2004.
2 Is that fair?
3 I mean, I am not aware of any document that says she
4 was saying more about Pendine than was contained in this
5 passage before you had a consultation -- or conference,
6 rather -- with her on 9th January?
7 A. Well, I accept that.
8 Q. If I am wrong, I will be corrected on it, no doubt.
9 Let's just go back to that first passage on the
10 page here. The third line:
11 "She also stated that on Friday, 19th December 2003
12 she had telephoned the Pendine Park out-of-hours clinic
13 at night because of the child's high temperature. She
14 states that she was told to give him Calpol and to phone
15 back in half an hour. She did this, and, as the child's
16 temperature had not come down, she and her partner had
17 taken the child to Pendine Park clinic where they saw
18 a lady doctor."
19 There is nothing there, is there, which would have
20 suggested to you at the turn of the year, 2003/2004,
21 that further investigations into Pendine would have
22 assisted on the question of mumps or swollen testes?
23 A. It would have assisted on the overall question of what
24 medical evidence there was about the child, about the
25 truth or otherwise of her assertion that she had been to
33
1 Pendine Park. It was a matter of which --
2 Q. Obviously it goes to the truth of Pendine Park. I am
3 asking you whether it went to the question of swollen
4 testes and mumps.
5 A. It could have done. That depended on the evidence that
6 would be gathered from Pendine.
7 Q. Did you give any consideration to asking for a medical
8 report from the GP?
9 A. I don't believe -- well, the answer to that is no,
10 I didn't, because we had statements from him. He had
11 been visited on more than one occasion by, I believed,
12 competent detectives, and statements taken from him.
13 The detectives had been back to him or a detective had
14 been back to him at least twice -- at least for a second
15 time to try to confirm what Andrea had said.
16 I would have been very surprised if there was any
17 other information that the doctor was able to supply.
18 Q. Why is that? How could you have been surprised if a GP
19 could not have given more information about a visit?
20 A. He had been asked by the police to make a statement. He
21 had made a statement. The police were well aware,
22 I believe, of the situation, the concern about this
23 case, the importance of this case, the importance of her
24 evidence. I think that they would have done their best
25 to get the appropriate evidence, the evidence which the
34
1 doctor could give, to get that from him.
2 Q. Both you and your counsel recorded that all that was
3 required was a certificate.
4 A. I realise that we -- I see that that's what we said.
5 I am not quite sure on reflection what would have been
6 meant by a "certificate". I know that people who are
7 off sick go to the doctor's and get a certificate which
8 says "Yes, this person was sick and was not fit to go to
9 work". I am not quite sure, in this case, what
10 a "certificate" would have meant in strict legal terms.
11 I think we used a shorthand to put "certificate".
12 I am quite certain that the defence would have had a lot
13 to say about the statements had we simply handed them in
14 and said, "There you are. That's the evidence".
15 Q. But what you told me earlier on was, if you had come up
16 with no medical evidence whatsoever on 2nd January, the
17 worst that would have happened is that the magistrate
18 would have said, "No further delays. It has to go ahead
19 on 8th March". So why was this such a problem?
20 A. The problem -- I am sorry. The problem was that there
21 was an amount of conflicting information. There was
22 also a matter of this lady's security and there was
23 absolutely no way that it would have been responsible
24 for me to try to proceed with the information that we
25 had at that time.
35
1 I did what I could, what it was my duty to do to
2 keep the case on the rails without major problems being
3 raised in court on that day.
4 Q. Until signing your statement yesterday, had you
5 mentioned to anybody that one of the reasons why you had
6 put the matter over on 2nd January was your concern
7 about this lady's security?
8 A. It would have been a matter that I would have been
9 speaking to the police about that morning and it
10 certainly would have been in my mind.
11 Q. But you didn't mention it, say, in the Inquiry
12 interview?
13 A. Probably not. There is a lot of things I may not have
14 mentioned. That was a matter where I had relatively few
15 materials in front of me. I had not had the time to
16 prepare that I had for this evidence today.
17 Q. Okay, but you fairly told us you have been researching
18 mumps and so on so that you can come and stand by your
19 decision.
20 Are you sure that you are reconstructing your memory
21 properly?
22 A. Mr Underwood, did you want me to come here with no
23 preparation at all? Is that the way you expect
24 witnesses to give the best evidence that they can to
25 this Inquiry?
36
1 Q. Would you like to answer my question now?
2 A. I can't remember your question.
3 Q. Fair enough. We will move on then if you can't remember
4 the question.
5 THE CHAIRMAN: Just before you do, you comment on the fact
6 that in the report from the doctor about the domiciliary
7 visit on 11th December he mentioned nothing about
8 swollen testes. You regarded that as casting doubt upon
9 Andrea McKee's honesty in her complaint to the police.
10 I think that's a fair summary.
11 A. I don't -- no, I am not quite sure if that's what
12 I said. I don't know, but I wouldn't have -- I was
13 focusing on the weekend just before she was supposed to
14 give evidence. I mean, that was what I was focusing on.
15 She was saying at that time the child had mumps, had
16 swollen testes, high temperature and a danger of
17 fitting.
18 Now, I accept that the fact there was a domiciliary
19 visit on 11th January indicates that this child over
20 a period had some health problems. That also indicates
21 to me -- well, sorry. I should say I am not
22 particularly or was not particularly concerned what the
23 details were on 11th January, because that was some
24 11 days before this event.
25 THE CHAIRMAN: Yes. So you were not attaching any
37
1 adverse -- any significant adverse to Andrea McKee that
2 the doctor in respect of the domiciliary visit had not
3 mentioned swollen testes. Is that ...?
4 A. I think that's right. The fact that it was never
5 mentioned was a concern to me, the fact that it was
6 never mentioned in any of the reports, including the
7 report in relation to the visit on 22nd January, that
8 was of concern to me.
9 THE CHAIRMAN: I am really concentrating on 11th December.
10 A. Yes.
11 THE CHAIRMAN: Was the failure to mention, or the lack of
12 any mention, of swollen testes of any concern to you?
13 A. No. I think the answer is that it wasn't.
14 THE CHAIRMAN: Thank you.
15 MR UNDERWOOD: Can we go to page [33991]? It is
16 Christine Smith's note of the conference on
17 9th January 2004. I want to pick up the text down to
18 the point where it says, "Wednesday or Thursday ..."
19 We see the note:
20 "Andrea asked by Christine Smith to relate history
21 of son's illness:
22 "Stated:
23 "He started being unwell from start of December.
24 I think it was all coming from MMR injection which he
25 had a few months back - his neck swoll up. Doctor said
38
1 it was a good thing, showed vaccination working and his
2 body was fighting infection. Swelling went away then
3 neck started swelling again at the start of December.
4 Child had not been well for a good couple of months.
5 "He was off nursery.
6 "I was off college as I had tonsillitis. I think it
7 was second week in December - I saw [blank]. I was off
8 college for two weeks, saw doctor in early December. He
9 said child had the mumps. At that time Amoxicillin was
10 prescribed, five-day course. Child spat most of it out.
11 Antibiotic did not help. Went back to doctor again -
12 second visit - at surgery, different antibiotic given.
13 Then [blank] paid house visit. I was still not well.
14 He prescribed nose drops and third antibiotic. Doctor
15 was worried about swelling of his testicles - orchitis,
16 were swollen before, said it went along with mumps, but
17 was not too dangerous because he had had MMR. Visit was
18 some time after second week in December. Doctor said
19 I had to be more forceful in giving medicine. Child had
20 lost weight and was to be given sugar drinks with
21 calories in them."
22 Now, is that an accurate note in your recollection
23 of what was said?
24 A. As far as I remember, it is, yes.
25 Q. If that was true, in your view, in 2004, would that have
39
1 been sufficient to justify the adjournment?
2 A. If that were all true, it may have been. I think that
3 you have to take in all the circumstances, and I think
4 one of the circumstances is that, on 19th December,
5 Andrea had no concerns apparently about attending the
6 court on the 22nd.
7 So all this history -- I am not saying this history
8 is not important. It does show a level of illness that
9 the child had during December, but it also shows that,
10 on the 19th, the child was not -- certainly on the early
11 part of the 19th, the child was not seriously -- was not
12 ill to the extent that the mother was concerned about
13 leaving it on the 22nd.
14 Q. If the matters set out in the passage I have just read
15 to you had been put in a medical report or
16 a certificate, saying "This is my finding as a GP",
17 would you have been content to advance that to the
18 defence and to the court on 2nd January?
19 A. In the circumstances -- well, first of all, it wasn't,
20 and, secondly, I think I would have still been concerned
21 about what happened over the weekend. I had been told
22 about Pendine Park and would have expected that
23 Pendine Park was going to produce very good evidence, or
24 possibly produce very good evidence and very strong
25 evidence that would stop any further argument about
40
1 this, but I still have to say that, in view of the
2 threatening letter, I would have had to take advice from
3 the police as to whether I could make the application to
4 move the case forward at that stage.
5 Q. What did you tell the defence in early 2004 which led to
6 adjournments?
7 A. What did I tell them?
8 Q. Yes.
9 A. I am sorry, on the -- what did I tell them on
10 2nd January?
11 Q. Yes.
12 A. We told the defence that Mrs McKee couldn't attend
13 because her child was ill and we certainly, according to
14 my note, told them about the mumps and --
15 Q. 2nd January?
16 A. Mumps and swollen testicles. Yes.
17 Q. Sorry, let's be clear about this. I am asking you about
18 2nd January, not 22nd December. It was due to come back
19 on 2nd January.
20 A. Oh, sorry. I am sorry. I believe -- I am not
21 certain -- but I believe -- I think we did disclose the
22 medical report from Dr xxxxxxx, the medical statements
23 from Dr xxxxxxxx
24 Q. If we look at page [33912], this is your, I think,
25 running record. Is that right?
41
1 A. Yes, it is.
2 Q. Paragraph 20. You say there:
3 "By the time the case was mentioned in early
4 January, police had been unable to obtain medical
5 evidence which fully supported Andrea McKee's assertion
6 that her child was suffering from mumps and had been
7 brought to the doctor and diagnosed with mumps during
8 the weekend of 19, 20 and 21 December."
9 So there you seem to be saying that by the time it
10 was mentioned on 2nd January there had not been support
11 of the assertion of a treatment over the weekend. Is
12 that the fair reflection of what you were thinking at
13 the time?
14 A. Yes.
15 Q. Do we gather from that anything about what you told the
16 defence?
17 A. No.
18 Q. Does it assist you? Can you help us with what you would
19 have told the defence?
20 A. As far as I'm aware, but I'm not certain about this, we
21 did give the defence Dr xxxxxxxx's statements.
22 Q. If we go over to page [33913], there is another
23 adjournment. At paragraph 31 you say:
24 "As a result of this meeting", that's a meeting on
25 26th February, "on Friday, 27th February 2004 before
42
1 [blank] RM at Craigavon Magistrates' Court,
2 Ivor Morrison appeared to request the court to adjourn
3 consideration of the validity of the conditional
4 adjournment granted on 22nd December 2003 and take the
5 case out of the list for 8th March 2004 when the
6 committal proceedings proper had been due to begin if
7 all was in order.
8 "The basis of the application was that extensive
9 enquiries had not yet yielded completely satisfactory
10 proof of all the circumstances upon which the
11 prosecution had relied in seeking the adjournment on
12 22nd December 2003."
13 That's your record, isn't it?
14 A. That's right.
15 Q. Would you accept from me that that conveys the
16 impression that you were telling the court that
17 extensive enquiries into what the court had been told on
18 22nd December had not yet been finalised?
19 A. That's what it appears to me, yes.
20 Q. Was that accurate?
21 A. Well, it certainly -- sorry, if we look at the actual
22 words, it certainly was accurate that we did not have
23 completely satisfactory proof of the circumstances that
24 the prosecution had relied upon. I may be going back on
25 my previous answer. I'm not necessarily agreeing with
43
1 your interpretation of that.
2 Q. But were you telling the court, "We have not yet
3 bottomed out what we told the court on 22nd December.
4 Give us some more time to do it"?
5 A. I think that's about right, yes.
6 Q. That's not true, is it? You were not bottoming out what
7 you had been told on 22nd December at all. You were off
8 on another frolic, Pendine Park?
9 A. Pendine Park was not a frolic. Pendine Park was
10 an investigation arising from what Andrea had told the
11 police.
12 Q. Not what you had told the court?
13 A. We had told the court about illnesses. Pendine Park --
14 she was supposed to have visited Pendine Park on
15 19th December, which was shortly before the hearing was
16 supposed to start on the 22nd. Pendine Park appeared to
17 be the place where we were going to get stronger
18 evidence perhaps to support what Andrea had told police
19 and what we had told the court.
20 Q. But, Mr Morrison, you had had a GP who had been visited
21 on 1st December, visited the home on 11th December, been
22 seen again on 22nd December, had prescribed three sets
23 of antibiotics and had some sort of records, albeit
24 mostly incomplete.
25 All that was being said about Pendine was it is
44
1 an out-of-hours clinic which she visited about Calpol.
2 How could it possibly have been more valuable?
3 A. Andrea was prepared to come to court. She appeared to
4 be prepared to come to court on the 19th. Something
5 happened over the weekend which -- well, she appeared to
6 be prepared to come to court on the 19th. I don't know
7 whether that's true or not, that she was.
8 It appeared then that there was an intervening
9 illness of the child and, on her evidence and what she
10 had told us, because of that illness she had taken the
11 child out of hours to that clinic to get the child some
12 treatment. That appeared to be very, very relevant to
13 the question of whether she was able to leave the child
14 on the 22nd and come to court.
15 Q. When she told you on 9th January everything that I read
16 out earlier about the history of the illness, did you
17 believe her?
18 A. I think the answer to that is, no, not fully.
19 Q. So why didn't you check it with the GP?
20 A. Well, we had the GP's statements which were not
21 consistent with that. I accept that that may have been
22 an appropriate course to do, but the police had been
23 with the GP on more than one occasion. These matters
24 I think would have arisen had they all been true.
25 Q. Well, on the first occasion the police visited the GP,
45
1 the GP could not even get his act together to tell them
2 about one of the visits, could he? So how could you
3 rely on that sort of visit?
4 A. Well, he was going to be a big help then if we went out
5 to get another statement or report from him.
6 Q. Ah, right. That's it, is it? You didn't believe her,
7 but you weren't going to check the GP, because he wasn't
8 going to be a big help. Is that it?
9 A. I mean, I'm afraid it is you who is trying to tell me
10 that the GP was not very good at keeping records and
11 that sort of thing. I --
12 THE CHAIRMAN: That's what the one of the officers reported.
13 A. Well, that's a matter that ... I had no -- shall we say
14 I had certainly no ulterior motive for not getting
15 a report from the GP, but I am certainly saying that it
16 was not something that we gave a lot of consideration to
17 or that we gave any consideration to.
18 MR UNDERWOOD: Can we move to paragraph 18 of your witness
19 statement? That's at page [82020]. We are dealing
20 again with 9th January and the meeting which was
21 attended by you, Christine Smith and a detective chief
22 inspector we are calling K. Do you know who I mean by
23 that?
24 A. Yes, I do.
25 Q. "DCI K questioned Andrea about the threatening letter.
46
1 She said that she had not known to expect the letter in
2 advance. She was concerned that her present address was
3 known by whoever sent it. She did not now wish to give
4 evidence unless she was moved to a different address,
5 but would not move away from Wrexham and would be
6 reluctant to give up contact with her friend Glynis in
7 Portadown. I understood that the conditions she placed
8 on a move would have made it impossible for police to
9 place her in a witness protection scheme."
10 Now, I don't want to be unfair about the wording of
11 this. Are you saying that the impression you got from
12 that discussion on 9th January was that she was setting
13 essentially impossible conditions on giving evidence?
14 A. Yes.
15 Q. Again, I want to be fair to you. We have had evidence
16 from the witness protection team who visited her. Their
17 conclusion was that she had a choice of moving from
18 Wrexham and going into a witness protection programme,
19 or staying in Wrexham, moving house -- which would have
20 been no difficulty, and would have been perfectly
21 practical -- and having some lesser protection policies
22 put in place, such as putting her maiden name in the
23 telephone directory, and that they were perfectly
24 satisfied she was able to give evidence and willing to
25 give evidence.
47
1 Now, would you like to comment on that?
2 A. That information was never given to me at any stage.
3 Q. So the position was then, as of 9th January, you were
4 satisfied that she would not give evidence because she
5 had set impossible conditions. Is that fair?
6 A. It was still a matter that police were looking into as
7 far as I was concerned, but that was my understanding at
8 the time.
9 Q. You were never disabused of that understanding. Is that
10 correct?
11 A. Nobody ever came to me to say, "Look, we can sort Andrea
12 out here in this way", no, never.
13 Q. So as far as you were concerned, she was not going to
14 give evidence, was she?
15 A. At that time it looked unlikely, but I had no concluded
16 view on the matter. It was still being investigated by
17 the police.
18 Q. Let's go back. You told me a moment ago she, as far as
19 you were concerned, was setting impossible conditions
20 for giving evidence. Correct?
21 A. That was a matter for -- that judgment was for the
22 police, and that was my understanding, that the
23 conditions -- specifically they couldn't put her in
24 a witness protection scheme, which is what they were
25 thinking about at that time, as I understand it.
48
1 If -- I mean, later considerations may have been
2 relevant to the assessment of the threat by the police
3 after further consideration. I don't know. But
4 I don't -- I was never informed that the police would
5 have been perfectly happy to protect her in Wrexham.
6 Q. No. So as far as you were concerned, the impossible
7 conditions set as at 9th January obtained throughout the
8 remaining consideration of whether to use her as
9 a witness. Yes?
10 A. I think that's right.
11 THE CHAIRMAN: We will take a break now. Just before we do,
12 can you tell us: what led you to think or to believe
13 that Andrea McKee was setting impossible conditions on
14 coming to give evidence? What information did you have
15 to lead you to that conclusion?
16 A. Well, it was in conversation with police that I gathered
17 that information that they would be unable to put her in
18 a witness protection scheme unless she moved away from
19 Wrexham and cut off her connections with, I suppose,
20 friends, relatives, etc, who might identify her
21 whereabouts.
22 Certainly the questioning of her by the Detective
23 Chief Inspector was, I think, focused on that. What was
24 she prepared to do in order to comply with witness
25 protection? Was she prepared to move away from Wrexham?
49
1 She wasn't. Was she prepared to sever her links with at
2 least one friend in Portadown, which she was tentative
3 about? That was the focus of the questioning by the
4 Detective Chief Inspector on that occasion, and I am
5 quite sure we had some discussion then as to whether, in
6 the circumstances, she could be a candidate for
7 a witness protection programme.
8 THE CHAIRMAN: But did you think that, without the witness
9 protection programme operating in her case, she would
10 not be prepared to come to Belfast to give evidence?
11 A. She was saying, "I will move if I am safe" -- sorry --
12 she was saying "I will give evidence if I am safe". The
13 impression I was getting from the police was she would
14 only be safe if she was on a witness protection
15 programme and that she would have to be moved out of
16 Wrexham in order to be put on a witness protection
17 programme.
18 THE CHAIRMAN: Very well. 11.40 am.
19 (11.25 am)
20 (A short break)
21 (11.40 am)
22 MR UNDERWOOD: Mr Morrison, can I get you to look at
23 page [34071]? This is a letter of 10th December 2003.
24 You will have to take it from me for the moment that it
25 came from Richard Monteith --
50
1 A. Yes.
2 Q. -- directed to you on 10th December 2003. Headed,
3 "R v Hanvey and Others".
4 Can I just highlight some passages for you and get
5 to you comment on what they would have meant?
6 The third paragraph says:
7 "On considering the edited portions of the
8 interviews of DI Irwin and former Detective Chief
9 Superintendent McBurney, it is obvious to me that the
10 rest of these notes should be made available to me
11 forthwith. In support of same I would make the
12 following observations at this stage."
13 If we go down and highlight the rest of it, he says:
14 "1. Dealing with Mr McBurney ..."
15 Can I pick it up six lines down into that passage?
16 There is a sentence which begins:
17 "I feel I am entitled to know what other
18 circumstances led to the interview. Clearly Mr McBurney
19 has been put forward as a witness of truth, and",
20 I think that should be "credibility", "by the Crown in
21 this case. This is an identical position to
22 Robert Atkinson in the case of R v Hobson. I therefore
23 feel entitled to the entirety of the notes and certainly
24 a full explanation as to what he was being interviewed
25 about. It was not an insignificant interview as he
51
1 availed of legal representation. In the case of the
2 R v Hobson the entirety of Robert Atkinson's Ombudsman
3 transcript was made available to me. It is notable that
4 some of the interviewing officers there were Mr McBurney
5 and DI Irwin."
6 Did that convey to you some sort of threat that
7 Mr Monteith was going to raise a problem about
8 prosecuting, amongst others, Mr Atkinson, having
9 advanced Mr Atkinson as a witness of truth before?
10 A. I think it didn't particularly raise that with me at the
11 time. I was concerned at this time to carry out duties
12 in relation to disclosure of evidence. Mr Monteith was
13 making strenuous representations in relation to
14 disclosure. He wanted everything disclosed. I was
15 intent on disclosing on the basis of my duty as I saw
16 it, and disclosing, perhaps, in a conservative manner,
17 because there was the opportunity for disclosure at
18 a later stage and of disclosure being ruled upon by the
19 judge.
20 So I wasn't particularly concerned with the details
21 of Mr Monteith's letter. I was disclosing, as I saw it
22 my duty to do. I didn't take a lot of notice of this
23 particular letter.
24 Q. Just for completeness on this issue, did it cross your
25 mind there might be embarrassment in prosecuting
52
1 Atkinson, having used him as a witness of truth in the
2 trial against Hobson?
3 A. No, it didn't.
4 Q. I want to move finally to the conclusion about the
5 prospect of using Andrea McKee as a witness. Can we
6 have a look at page [33919]? Is this a letter or
7 memorandum?
8 A. A memorandum.
9 Q. Thank you. Of yours, of 16th March to the Director of
10 Public Prosecutions. Is that right?
11 A. Yes.
12 Q. You refer to the attached opinion provided by
13 Mr Simpson. We can look at that, if you need it. Do
14 you have a record of that?
15 A. I do.
16 Q. "... following his consultation with Andrea McKee on
17 Tuesday, 2nd March 2004. Mr Simpson has been advising
18 in the case for some two years and is very familiar with
19 all the issues involved.
20 "I attended the consultation with Mr Simpson. Also
21 present were [others] ... they each took notes of the
22 consultation, the relevant contents of which have all
23 been set out in Mr Simpson's advice.
24 "It is my view from what transpired at this
25 consultation and from the second of two previous
53
1 consultations I have attended with Andrea in Wales, that
2 she has been untruthful and has invented facts when she
3 felt that this course of action would suit her own
4 purposes. There is every reason to believe that her
5 story about visiting Pendine Park on the weekend before
6 she was due to give evidence in December is
7 an invention. The police have carried out very
8 extensive enquiries which would have been bound to have
9 revealed some trace of her visit with her child and
10 partner if it had taken place.
11 "While the Pendine Park issue is not a matter which
12 is directly relevant to the essential evidence in the
13 prosecution of Atkinson, Atkinson and Hanvey, it
14 provides a basis upon which the defence will attack her
15 credibility which, without doubt, will be critically
16 damaged.
17 "The prosecution depended upon the evidence of
18 Andrea, not only to prove that the present defendants
19 committed the offences alleged, but also to prove that
20 the offences were committed at all. In view of the
21 threadbare statement of her credibility, there is no
22 longer a reasonable prospect of convicting any of the
23 defendants of the offences with which they are charged.
24 "In reaching this conclusion, I have also considered
25 whether there is any possibility of proceeding with the
54
1 case without calling Andrea as a witness. It has always
2 been clear that she was the key witness", overleaf,
3 [33920], "in this case. Without her testimony there is
4 not a shred of evidence upon which the defendants could
5 now be convicted.
6 "In the circumstances, there is no reasonable
7 prospect of the conviction of any of the defendants and
8 I recommend that when the case is mentioned again at
9 Craigavon's Magistrates' Court on Friday, 19th March,
10 that the court be informed that the prosecution no
11 longer relies on the evidence of Andrea [blank] and is
12 not therefore in a position to proceed further with the
13 committal."
14 Was that a fair reflection of your views?
15 A. It was.
16 Q. So, to summarise, she had lied. As a result of her
17 lying, specifically about Pendine Park, you thought she
18 was a witness who would not be credible when she gave
19 evidence at a trial?
20 A. That is the purport of that minute, yes.
21 Q. Now, if we look at page [33914], this is the concluding
22 page of that what I call running note of yours --
23 A. Yes.
24 Q. -- dated 18 March. The final entry there is 35:
25 "The case is due to be mentioned again in
55
1 Craigavon Court tomorrow, 19th March 2004, before
2 [blank]. In the absence of satisfactory evidence
3 supporting the information given to the court on
4 22nd December 2003 about the nature and seriousness of
5 Andrea's son's illness, it is probable that [the
6 magistrate] would be unwilling to allow the proceedings
7 to proceed further."
8 Did you believe that too?
9 A. Clearly if I wrote it -- when I wrote it, that was my
10 feeling on the matter.
11 Q. Do you understand the contradiction between the two
12 passages I have just read to you?
13 A. I think there is a difference of approach. I'm not sure
14 that there's a contradiction as such.
15 Q. Well, let me tease it out for you.
16 In the first one, you say, "She is not a credible
17 witness, specifically in relation to Pendine Park, and
18 that affects the rest of her evidence and this will
19 emerge at trial".
20 In the second one, you say, "There is an absence of
21 satisfactory evidence supporting the information given
22 to the court 22nd December about the nature and
23 seriousness of the illness and it is probable that the
24 magistrate is going to throw it out the next day."
25 Do you understand that those contradict each other?
56
1 A. I see that they deal with different parts of the
2 probable -- the possible course of the prosecution.
3 Paragraph 35 concentrates on the difficulties of
4 actually getting the defendants committed for trial.
5 The letter to the Director or the memorandum to the
6 Director deals with what happens if it actually gets to
7 the trial stage, which is what Mr Simpson had actually
8 concentrated on in his opinion.
9 MR UNDERWOOD: I have no further questions. Thank you.
10 MR WOLFE: Nothing arising, sir.
11 MR ADAIR: Nothing arising, sir.
12 Questions from MR McGRORY
13 MR McGRORY: I have some questions, sir.
14 Mr Morrison, my questions are on behalf of the
15 Robert Hamill family.
16 A. Yes, Mr McGrory.
17 Q. Are you, or have you ever been, a member of the
18 freemasons?
19 A. No.
20 Q. Never?
21 A. Never.
22 Q. Do you know Richard Monteith personally?
23 A. I should say I used to be the assistant director for the
24 area in which he mainly practices. I would have bumped
25 into him in court from time to time. I may have had
57
1 a cup of coffee with him in Craigavon Court House, but
2 I have had that with many solicitors. Other than that,
3 I have never -- I have no connection with
4 Richard Monteith at all.
5 MR McCOMB: Sorry to object at this early stage, but my
6 friend may be leading up to -- I don't know what it is,
7 but the first two questions appear to me, sir, to be
8 premised on some assumption that my friend is making
9 that there is some improper relationship between the two
10 people, this witness and my instructing solicitor.
11 Perhaps if he could lay the ground for the basis on
12 which he may be pursuing this line of questioning,
13 I would be quite grateful, sir.
14 THE CHAIRMAN: It's a legitimate request. You are not
15 entitled just to fish to see what you may catch. There
16 has to be a proper basis.
17 MR McGRORY: Of course, sir. Absolutely. The questions
18 I am about to ask will hopefully reveal the reason why
19 those first two questions were asked.
20 THE CHAIRMAN: Well, I will let you continue for the moment.
21 MR McGRORY: I am much obliged.
22 Can I take you to your witness statement, please,
23 presented to the Inquiry at [82018]? Paragraph 13:
24 "The case was mentioned at Craigavon's Magistrates'
25 Court on 2nd January 2004."
58
1 Now, when the case was adjourned on 22nd December,
2 the magistrate asked for a medical certificate to vouch
3 for what he had been told in terms of the reason for the
4 non-attendance of Andrea McKee. Isn't that correct?
5 A. That's what my note basically says, yes.
6 Q. Yes.
7 A. Although I think we have had some discussion about the
8 word "certificate", and -- that's what the note says.
9 Q. Andrea McKee -- it was conveyed to the court that it was
10 Andrea McKee's belief that her child had mumps, that
11 there were swollen testes and so forth. Isn't that
12 correct?
13 A. That's correct.
14 Q. Yes. So all the prosecution was really being asked to
15 do was to vouch for her belief that that's why she
16 didn't attend. Isn't that what you were being asked to
17 do?
18 A. I believe it was more than that. I believe that it was
19 necessary to show that there was -- that that belief,
20 shall we say, was well-founded, and I think that there
21 is more to it than simply the question of the medical
22 certificates. I think we have a lady who, on the 19th,
23 was apparently prepared to go to court and, on the 21st,
24 wasn't prepared to go to court.
25 Should I say this court had been arranged some five
59
1 or six weeks in advance?
2 Q. Oh, yes.
3 A. There was considerable difficulty in arranging the court
4 for this period. Her interests had been taken into
5 account in fixing the date. She knew well that this was
6 an important -- was a very important matter for her to
7 attend. She knew that the police had made arrangements
8 for her to attend. If it was that the child had
9 a continuing, shall we say, lowish level of illness --
10 I don't know, I can't comment on what the level of
11 illness was -- but, if that was the case, then I think
12 it was her duty, and she should have seen it as her
13 duty, to tell the police in advance she couldn't attend.
14 I think it wasn't for her just on a whim to decide,
15 "I don't want to go. I have changed my mind. This
16 doesn't suit me".
17 So in order to prove that wasn't the case, it was
18 necessary to have substantial medical evidence
19 Q. Well, she had come over on 27th October. Isn't that
20 right?
21 A. She had.
22 Q. Indeed, the adjournment on that occasion was at the
23 request of the defence. Isn't that right?
24 A. That's absolutely right.
25 Q. So in the way these things work in the swings and
60
1 roundabouts, the rough and tumble of
2 Magistrates' Courts, the defence had asked for one
3 adjournment and, on 22nd December, you were in
4 a position where you had to ask for another, because
5 your witness had not come to court?
6 A. That's right.
7 Q. Certain information was conveyed to the magistrate and
8 he said, "Well, that's okay. I need some certification
9 of that". That's basically what happened?
10 A. That's basically what happened, yes.
11 Q. When you went to court on 2nd January 2004, at that
12 stage you had certification of the fact that the child
13 had been seen by a doctor on 1st December 2003. Isn't
14 that right?
15 A. Yes.
16 Q. And that, on that occasion, an ear infection was
17 diagnosed and the doctor acknowledged the possibility of
18 mumps?
19 A. Yes.
20 Q. Also, you had armed with you in court on 2nd January
21 a further report from Dr xxxxxxx saying there had been
22 a home visit on 11th December 2003?
23 A. That's right.
24 Q. In that report from Dr Baker he also acknowledged on
25 11th December there was the possibility of mumps.
61
1 A. Yes.
2 Q. So can we assume then, Mr Morrison, that for a mother to
3 convey the belief that her child had mumps, that was not
4 an unreasonable belief to arrive at, when the child
5 continued to be sick?
6 A. I think it was a belief that I would have expected her
7 to convey to the woman detective on 19th December.
8 There was a fair time, Mr McGrory, between 11th December
9 and 22nd December, when she was to be in court. If the
10 child had a continuing serious illness, which ultimately
11 was going to affect her willingness to go to court, then
12 I think that it was -- I would have expected her to
13 mention it to the policewoman on 19th December and not
14 say without any qualification, "I will be in court on
15 the 22nd".
16 Q. Forgive me, Mr Morrison. This is a new issue. You are
17 now saying to us that your concern about this witness
18 arises from the fact that she said nothing on the Friday
19 and then, all of a sudden, on the Sunday evening, she
20 has changed her mind, that that was the problem with
21 her.
22 A. That was part of the problem, Mr McGrory. I think that
23 the --
24 Q. Am I missing something, Mr Morrison? That's the first
25 time this has ever been put forward as a reason for
62
1 doubting Andrea McKee.
2 A. That may be so, but I am telling you what my view is,
3 that it was extremely surprising that she should -- she
4 was a witness under an obligation to come to court. She
5 knew that. She knew the importance of this. If the
6 child was sick to the extent it was worrying her on the
7 19th, why did she not tell the policewoman?
8 Q. You see, that's not mentioned in any of the numerous
9 documents arising from the consideration of this issue.
10 MR EMMERSON: My learned friend would wish to be corrected
11 if he is wrong. It is mentioned in various places.
12 I will deal with them in due course.
13 MR McGRORY: Okay. In any event, you arrived down on
14 2nd January, Mr Morrison, armed with these two reports
15 from Dr xxxx?
16 A. That's right.
17 Q. Now, the simple thing to have done was to have presented
18 these two reports to the magistrate and said, "Here is
19 your certification. She had a belief that her child had
20 mumps. Here is the certification from the doctor that
21 there was a history right up to and including
22 22nd December, when the child was diagnosed as having
23 a double ear infection. Can we please fix a date for
24 this committal?"
25 That's all you had to do.
63
1 A. Mr McGrory, I have explained, and I think, had it been
2 your clients that were the defendants, you would have
3 been very upset if I had done that and not mentioned
4 Pendine Park, which was a matter of -- which I had to
5 consider for disclosure purposes, and, as I have said,
6 there was also a matter of security.
7 Q. You see, on 2nd January, you had no reason to believe
8 that there was any problem with Pendine Park. Sure you
9 didn't?
10 A. I did.
11 Q. On 2nd January?
12 A. Yes. I had received that morning a fax, a faxed copy of
13 the statement from Dr xxxxx which said, "No, this lady
14 didn't attend as far as we can see. We don't have any
15 record that she attended on that day."
16 Q. Yes, but as far as -- the maximum that you knew is there
17 is no record but you had the mother's assertion to the
18 police that she did go. Isn't that right?
19 A. Yes.
20 Q. And you had the mother's belief that the child was so
21 ill with mumps that she couldn't travel.
22 A. That's what she was conveying, yes.
23 Q. You had verification that the child was ill and that
24 mumps had been suspected for weeks.
25 A. I am reluctant to put forward any medical opinion, but
64
1 it seems strange that that situation should have lasted
2 for so long if there really was mumps.
3 Q. You see, what you say in paragraph 13 of your witness
4 statement is that the case was mentioned on 2nd January.
5 No medical evidence was presented and the case was
6 further adjourned for the matter of Andrea's
7 non-attendance to be dealt with on a future date. Is
8 that the truth?
9 A. It is.
10 Q. Is it the case that no medical evidence was presented?
11 A. I'm not sure whether I gave copies to the defence and
12 possibly the court. I don't think so, but you certainly
13 didn't put it in and say, "This is the evidence that we
14 are relying upon for the adjournment". I just am not
15 sure about that.
16 Q. Well, you certainly had some conversations with
17 Mr Monteith on that day, did you not?
18 A. Very possibly.
19 Q. You made some comments about an ear infection at least.
20 A. I don't know.
21 Q. Well, could you look at page [33983]? This is a letter
22 from Mr Monteith to you dated 16th February 2004.
23 A. Oh, yes, yes.
24 Q. "Following the appearance on 2nd January and the
25 disclosures that you made at that stage about the
65
1 alleged sickness in Wrexham, I would be obliged if you
2 would let me have well before 27th February any further
3 relevant disclosures about the sickness or otherwise."
4 A. Yes.
5 Q. So clearly you did say something on 2nd January about
6 an ear infection.
7 A. Yes. I have always said that -- as far as I am
8 concerned, I think I did disclose the existing medical
9 reports to the defence. They would have gathered that
10 from -- Mr Monteith would have got that information from
11 the medical reports.
12 Q. You see, isn't it the case, Mr Morrison, that, in fact,
13 you expressed some doubts about Andrea McKee's reason
14 for not coming to court to Mr Monteith?
15 A. I have no reason to believe that I did.
16 Q. Why did you have to say anything about ear infections?
17 A. Because that was the medical evidence that I had at the
18 time and I think it was incumbent on me to give the
19 defence some information about what was going on.
20 I couldn't come to the court and simply say, "I want
21 a further adjournment", without some sort of explanation
22 to the defence, but I have no note as to exactly what
23 I said.
24 Q. Did you say to him by any chance, "She has told us
25 something about going to a night clinic, but we can't
66
1 verify that"?
2 A. I don't know. I don't think so.
3 Q. You see, because he asks you in this letter:
4 "It may well be that there will actually have to be
5 a witness statement prepared by yourself and
6 Miss Smith ..."
7 A. Yes.
8 Q. So whatever it was you said to Mr Monteith on
9 2nd January, he wants a witness statement from you
10 possibly.
11 A. Mr Monteith and Mr Mallon -- I am not sure whether
12 Mr Mallon was there on the 2nd; I am not sure, but he
13 did appear in the case -- were obviously sceptical about
14 anything said or done by Andrea McKee. I think that
15 Mr Monteith was very capable of writing this letter in
16 this tone without me having said what you suggested.
17 Q. You see, a can of worms has been opened here then.
18 Isn't that right? That is what has happened. Now
19 Monteith is saying he wants witness statements from
20 prosecutors obviously.
21 A. Yes.
22 Q. All of a sudden there is a big spotlight on what was
23 a simple, straightforward explanation as to the
24 non-attendance.
25 A. I am sorry. I just don't agree, Mr McGrory. There were
67
1 other complications which had to be considered. I had
2 to take those all into account in that morning and
3 progress the case in as safe a way as possible, shall we
4 say, and that was what I tried to do.
5 Q. If you could look at your witness statement towards the
6 end of paragraph 13, over the page at [82019], at (d).
7 A. Yes.
8 Q. "I was aware of the fact that Andrea had received
9 a threatening letter ..."
10 A. Yes.
11 Q. You go on to say something here:
12 "If I had obtained ratification of the adjournment,
13 as far as I was aware this could have signalled to
14 a terrorist organisation that Andrea was committed to
15 giving evidence despite their threat, thereby possibly
16 compromising her safety."
17 A. Yes.
18 Q. Would it not have had the opposite effect?
19 A. I am sorry?
20 Q. By stalling, by stalling and not pressing for a date to
21 be fixed, were you not sending a message to a terrorist
22 organisation that such threats bear fruit?
23 A. No. I am sorry. I just -- well, I think I understand
24 your question. There was a threat to this woman. If we
25 had -- a threat that may have been a serious threat,
68
1 a threat that may have been an indication that there was
2 a danger to her. That danger was predicated upon her
3 giving evidence. That's what the letter suggested. If
4 we had proceeded in a way that showed Andrea Smith is
5 going to turn up -- or Andrea is going to turn up on
6 whatever it was, 8th March, to give evidence, that would
7 have -- that possibly would have signalled to the
8 organisation that may have sent this letter that she was
9 still a willing witness and they might have taken, if
10 they were capable of doing it, action to further try to
11 prevent her giving evidence.
12 Q. But did you discuss that with the police as to what sort
13 of message would be sent?
14 A. Well, I think, if I can bring you back to the actual
15 day, this was the day after the New Year holiday. It
16 was the first day back to work. I had just received the
17 information about Pendine, that there wasn't a statement
18 forthcoming from Pendine -- a positive statement, from
19 our point of view, forthcoming from Pendine at that
20 time. I had a number of things to discuss with the
21 police. I knew that the police were dealing with this
22 threat. I think if you look at the various journals and
23 things like that of the police, the police took it
24 seriously. They had to take it seriously.
25 I had to be careful what I did regarding the case so
69
1 as not to prejudice the witness. I cannot tell you
2 chapter and verse what consultations I had with the
3 police about that, because this was a fairly -- this all
4 took place in a fairly short space of time.
5 Q. I have to suggest to you, Mr Morrison, you have made
6 this up since then as another possible reason.
7 A. Well, I haven't made up the threat to her safety. It is
8 quite clear that to proceed would have been -- would
9 possibly have compromised her safety. I have said in
10 the opening part of that paragraph that I don't --
11 I cannot say what my exact analysis was at the time, in
12 that I took this decision followed by that decision and
13 that decision, but these were all matters which were
14 certainly to be considered. I mean, it would have been
15 reckless of me not to take her safety into
16 consideration.
17 Q. Could you look, please, at page [33913], paragraph 31?
18 I think this is your running note -- correct me if I am
19 wrong -- of events.
20 A. Yes.
21 Q. You discuss going down on Friday, 27th February to try
22 to get another adjournment while Mr Simpson is arranging
23 to see the witness. Isn't that right?
24 A. I think that's right, yes.
25 Q. You go down on 27th February. Halfway down you say:
70
1 "The basis of the application was that extensive
2 enquiries had not yet yielded completely satisfactory
3 proof of all the circumstances upon which the
4 prosecution had relied in seeking the adjournment ..."
5 A. Yes.
6 Q. "[Name redacted] objected to the application on the
7 basis that, on 22nd December, the defence and the court
8 had been told that Andrea McKee's child was seriously
9 ill with testicular mumps. This, he said, was simply
10 not true, as the only proof presented so far was that
11 the child had an ear infection. He said that the court
12 might have taken a different view if it had been told
13 only that the child had an ear infection. He rehearsed
14 some of the history of the case and the difficulties for
15 his clients."
16 Then it goes on in the next paragraph:
17 "Richard Monteith, on behalf of Kenneth Hanvey, said
18 it was even worse than Mr [name redacted] had described,
19 in that Mr Morrison and Miss Smith had been told what
20 was a blatant lie and an utter lie. He also rehearsed
21 some of the history of the case and the difficulties
22 which taking it out of the list on 8th March would
23 cause."
24 A. That's right.
25 Q. Isn't it the case then, insofar as Mr Monteith and the
71
1 other representative were concerned, that they felt
2 there had been a serious misleading of the court in
3 respect of an ear infection?
4 A. That seems to be what they were saying, yes.
5 Q. In fact, that's not the reality. You had nothing to
6 worry about, because all Andrea McKee had ever said was
7 she believed he had mumps and there was nothing in the
8 medical evidence that was inconsistent with her belief?
9 A. If that is your opinion, it is not an opinion that
10 I share.
11 Q. What Mr Monteith is saying now is that he wants some
12 sort of a big investigation into what you and Miss Smith
13 have told the court.
14 A. Yes. That's what he is saying.
15 Q. Did that cause you concern?
16 A. No.
17 Q. You see, I suggest it shouldn't have caused you concern,
18 because you had told the court nothing that was
19 inconsistent with the medical evidence.
20 A. I told the court nothing inconsistent with what we had
21 been told -- the message that had come through from
22 Andrea on 21st December.
23 Q. You see, Mr Morrison, are you operating at this time
24 under the mistaken belief that somehow or another your
25 conduct and the conduct of Miss Smith is going to be put
72
1 under some sort of spotlight?
2 A. I think -- I'm not quite sure at what stage we were
3 aware that there was to be a public Inquiry or there
4 might be a public Inquiry in this case. Certainly many
5 of my actions -- sorry -- should I say I was generally
6 aware that there was concern about this whole case, but
7 as far as believing that there would be some inquiry
8 into what Miss Smith or myself had said or that we might
9 have to give evidence about it, I had no concerns about
10 that at all.
11 Q. You see, what has happened on 2nd January is that you
12 have gone down to court and all you really needed to do
13 was present the evidence to the magistrate to explain
14 the absence of Andrea McKee on 22nd December, but you
15 did more than that. You have raised a doubt in the mind
16 of the defence about the veracity of her reason for not
17 coming to court?
18 A. Well, I'm sorry. If that doubt was raised, then --
19 well, I'm not sure at what level that doubt was raised,
20 but I have to say that ultimately we could not have put
21 in those medical reports without disclosing that there
22 were other issues. That simply would have been a breach
23 of our duty of disclosure.
24 Q. You see, what has happened by not proceeding with just
25 presenting the explanation is you have conveyed to the
73
1 defence that you were concerned about it, that you
2 didn't accept it.
3 A. If they picked that up from me, I don't know. That's
4 a matter for them.
5 THE CHAIRMAN: Mr McGrory, are you saying that Mr Morrison
6 should not have disclosed anything about Pendine on this
7 occasion?
8 MR McGRORY: He didn't need to, no.
9 THE CHAIRMAN: He says it would have been professionally
10 improper not to mention it. Do you want to challenge
11 that?
12 MR McGRORY: Pendine presented you with no problem,
13 Mr Morrison, really.
14 A. It did present us with a problem because we had
15 a witness, a very important witness, who had told us or
16 told the police something.
17 The police had gone to get confirmation of that,
18 expecting, as far as I know, to get confirmation of
19 that, and they had got exactly the opposite, and what
20 she had told us was directly relevant to or appeared to
21 be directly relevant to her non-appearance and obviously
22 what -- when it was found that that didn't appear to be
23 true, that also was directly relevant to her
24 non-appearance.
25 Q. You see, at the most, all you had to do, Mr Morrison,
74
1 was to say, "Well, look she also told us she had went to
2 a night clinic, but we have not got that verified. But
3 here's what we have got", and let the magistrate decide
4 whether the grounds for an adjournment were sufficient?
5 A. Well, the magistrate I think would have also heard the
6 views of the defence and would have had to take those
7 into account.
8 What I did was, at that stage, in the expectation or
9 certainly in the hope that we would get first class
10 evidence ultimately from Pendine, evidence that would
11 put a stop to this whole discussion, what I did was put
12 the matter back, adjourn the matter until such time as
13 we were in a proper position to present all the evidence
14 that we expected would be gathered.
15 Q. You see, the other issue I have with you, Mr Morrison,
16 is that none of this has anything to do with the actual
17 case in terms of what it is -- the prosecution you were
18 actually bringing. It is about why Andrea McKee did or
19 didn't turn up on 22nd December.
20 A. Yes.
21 Q. What we are seeking here is a date to continue with the
22 committal.
23 A. That is right, but a date which was subject to the
24 considerations of the reason for the adjournment on
25 22nd December.
75
1 Q. But the magistrate is only to deal with the issue of
2 whether there is a prima facie case. If there is
3 an issue about him being misled, that's a separate
4 issue. It has nothing to do with the actual case.
5 A. Well, in a sense, I agree that that would be his duty
6 when he had heard all the evidence, to decide whether
7 there was a prima facie case, a case for it to go to the
8 Crown Court. That would be the case.
9 We had -- but we couldn't ignore -- I couldn't
10 ignore that morning the fact that there had been
11 an adjournment -- we had asked for an adjournment on
12 certain grounds and had been told, "We can get your
13 adjournment if you can show us those grounds were
14 correct". On 2nd January, there were issues about that
15 and there was the additional issue of the letter and her
16 safety.
17 It would have been completely wrong of me to have,
18 I think, done anything other than I did do on that
19 morning.
20 Q. You see, I am suggesting that you are confusing two
21 issues, Mr Morrison. If the RM wished to have
22 an examination as to whether or not he had been told the
23 truth, that would be a disciplinary issue or an ethical
24 issue for the lawyers concerned, but it has nothing to
25 do with getting on with the case.
76
1 A. I am sorry. I don't see what was disciplinary or
2 ethical at all. We had told him what we believed at
3 that time. We were simply gathering evidence to support
4 that. That evidence was in a state at that stage where
5 it would have been unprofessional for me to disclose one
6 part without the other. The other part being Pendine,
7 as far as I knew, may have rectified itself by further
8 investigations of Pendine. Unfortunately, it didn't,
9 and that raised problems.
10 I accept there are different issues, but at some
11 point they touched together.
12 Q. You see, Mr Monteith in his letter that I had shown you
13 earlier --
14 A. Yes.
15 Q. -- is saying, "I maybe want witness statements from you
16 and Miss Smith about this". Isn't that right?
17 A. That's right.
18 Q. So that's now in your mind.
19 A. It was never a worry to me at all.
20 Q. That it might have been easier for you if this
21 prosecution went away, then Mr Monteith would go away?
22 A. It would be very --
23 THE CHAIRMAN: It doesn't seem as though everyone agrees.
24 MR McGRORY: Mr Monteith never seems to go away.
25 A. He is persistent, but making a statement about this
77
1 would have been the least of my worries.
2 Q. Can I -- you then had several meetings after all of this
3 with Mr Simpson. Isn't that right? In that document
4 that's already up, in an earlier paragraph,
5 paragraph 30, you will see there you had meetings with
6 Mr Simpson on 17th February, 25th February and then on
7 26th February --
8 A. Yes.
9 Q. -- when he attended a meeting with the Director and
10 Mr xxxxxxx. Is that right?
11 A. I think that's right.
12 Q. During those meetings, it was obviously conveyed to
13 Mr Simpson in fairly forcible terms that by then you had
14 your serious doubts about this prosecution because you
15 couldn't bottom out the Pendine issue. Isn't that
16 right?
17 A. Well, he had my -- what do you call it -- my running
18 note of the situation. He had seen Andrea, had given it
19 his full consideration. He certainly knew that we were
20 concerned about the Pendine issue, yes.
21 Q. Of course, the Director on the meeting of the 26th
22 himself raised an issue at [33980]:
23 "The Director said that he had to be sure that he
24 had taken every proper step to advance the case", this
25 is the third paragraph, "and he expressed the view that
78
1 in all the circumstances Andrea McKee may remain
2 credible on the main issue."
3 A. He did.
4 Q. So despite all your concerns being expressed to
5 Mr Simpson and the Director, the Director has raised the
6 very valid point, that, "Well, whatever all of that
7 about Pendine, she may be believed on the main issue."
8 A. That was something that he required to explore and be
9 satisfied about.
10 Q. That really is what it is all about, is it not? I mean,
11 whatever it is about Pendine, the issue here is: will
12 she be believed on the main issue?
13 A. Ultimately, I think that that is the -- well, that is
14 the case, but there are other considerations.
15 For example, I mean, there are many scenarios that
16 might have developed, depending on what we did, what the
17 defence did, that sort of thing. If the magistrate at
18 some further point down the line said, "I have seen the
19 statements of Dr Barker. I have been made aware of the
20 Pendine issue", shall we say," I have every sympathy for
21 this lady if her child was ill. I find some issues I am
22 not happy about. Are you going to call this lady to
23 give evidence about Pendine?" we simply could not have
24 done that. That is one possible scenario. It's not one
25 that may have been particularly likely, but that's the
79
1 sort of difficulty that we were in: can you call
2 a witness that you know is going to give perjured
3 evidence?
4 If for any reason she had to be called simply on the
5 question of Pendine, then we would have -- we could not
6 possibly have called her in those circumstances.
7 Q. I am going to come to that in a moment, but what the
8 Director raised with you on 26th February was -- well,
9 you are going to him and you are saying, "I want to drop
10 this prosecution".
11 A. No, the Director was involved in these matters before
12 that. He had asked me to get Mr Simpson to see the
13 witness. He knew what was going on. He was very
14 engaged in this whole thing, but it was a requirement
15 from me, having received the -- having been the person
16 who attended the consultation along with Mr Simpson,
17 having received Mr Simpson's opinion, it was a matter
18 for me to pass that on to the Director with my own
19 views. Sorry, I am maybe taking that out of -- slightly
20 out of context, but it was the Director's requirement
21 that Gerry Simpson see Andrea. As I say, he was very
22 engaged in this matter.
23 Q. Yes, but what the Director is asking you, of course, on
24 26th February is, "Tell me why she might not be believed
25 on the main issue". That's the question he asked to be
80
1 addressed. Would you agree that that's what that
2 passage suggests?
3 A. Well, the address -- really what the passage
4 addresses -- this is not -- this is not an instruction
5 to me to address that issue. It's, in fact, a note that
6 he wanted me to get Mr Simpson to see the witness to
7 address questions mainly of her credibility.
8 Q. Yes. Well, there were two questions which needed to be
9 addressed, Mr Morrison. One is whether or not you are
10 all right about her not telling the truth about Pendine
11 and, secondly, how does that affect the question of
12 whether or not she is still telling the truth on the
13 main issue, which was the substance --
14 A. Yes. I agree with that.
15 Q. Those are two simple questions. What he is saying is,
16 "You are all telling me she is not telling the truth
17 about Pendine. Mr Simpson has not seen her. I want
18 know what he is saying about that question."
19 A. Yes.
20 Q. "The second question I want answered as the Director of
21 Public Prosecutions before I drop this prosecution is:
22 even if we think she might be telling a lie about
23 Pendine, how does that affect the prosecution?"
24 A. Yes.
25 Q. That's the second question he needs to be resolved.
81
1 A. He was certainly asking that. He was, as it were,
2 thinking out loud saying this.
3 Q. Yes.
4 A. "Is she still credible? Can she still be called as
5 a witness on the main issue, even if she is telling us
6 lies?" Yes, that's what he wanted addressed.
7 Q. In terms of the actual prosecution, the only evidence
8 you needed to lead Andrea McKee on is on the issue --
9 the main issue as to whether or not she had conspired
10 with others to pervert the course of justice. Isn't
11 that right?
12 A. Well, that was the core evidence that we had to lead,
13 yes. I think there was a lot of background that had to
14 go in as well.
15 Q. Yes, yes, but insofar as this what I suggest was a red
16 herring about the reason for the adjournment on
17 22nd December, that is not an issue in the preliminary
18 Inquiry that you needed to lead evidence on.
19 A. I disagree. Well, we probably would not have led
20 evidence on it, but I am as certain as I can be that the
21 defence would have raised it with her.
22 Q. Yes. That's another matter I suggest to you, but
23 insofar as --
24 A. Well, it's a matter -- if she had raised it, she would
25 have lied and we then would have been putting her into
82
1 the witness box to give evidence on oath knowing that
2 she was lying. That's just one aspect of it.
3 Q. If that happened, then the question that you and the
4 Director needed to ask yourselves was, "Okay. If we
5 lead her through her evidence on the main issue, and if
6 the prosecution cross-examines her about the adjournment
7 and she repeats what she said about Pendine, will that
8 affect the credibility of her evidence on the main
9 issue?"
10 That's the question, isn't it?
11 A. It is.
12 THE CHAIRMAN: You have to address that question
13 independently from the question, "How does she seem to
14 be as a witness about the case itself?"
15 Do you agree with that?
16 A. I think ultimately our concern was: how does she seem as
17 a witness in the case itself?
18 How exactly the whole thing would pan out was
19 a matter of some speculation, as I say, how -- the first
20 stage was this preliminary enquiry. How would her
21 evidence pan out in that? Would her evidence be so poor
22 that the case would not be returned for trial at all?
23 Then, in the trial, could we call her knowing that
24 she would be cross-examined about this and would lie on
25 this issue and would probably lie -- I mean, I think
83
1 it's -- having seen Andrea, I think she has a capacity
2 to change her story in accordance with any difficulties
3 that she perceives, and we -- apart from the general
4 principle of not calling a witness that you know is
5 going to lie, you didn't know where she was going to lie
6 and where she might change her evidence.
7 MR McGRORY: Of course, Mr Morrison, the very substance of
8 her evidence was about the fact that she had told a lie.
9 A. It was.
10 Q. So that has to be dealt with anyway.
11 A. It has to be, yes --
12 Q. Yes.
13 A. -- and it would have been. If she had been a person who
14 was coming along and getting rid of all her baggage and
15 we could say, "This is a person who now has repented, as
16 it were. She has told lies before in different
17 circumstances, but now she is telling you the truth
18 about everything, about everything", then I think those
19 are the circumstances that we originally thought we
20 would have and that she would be possibly a very
21 compelling witness, but there was this major, major
22 blemish, and it wasn't something -- it wasn't a lie that
23 wasn't at all connected with this case. It was a lie
24 about her coming to give evidence in this case and that
25 was a major difficulty.
84
1 Q. But if it was a lie, it's not that she completely
2 invented an illness. Sure it's not?
3 A. Possibly. Possibly she completely invented the things
4 like the swelling of the testicles.
5 Q. Yes, but you already had plenty of evidence that the
6 doctor had twice advised her during the month of
7 December that mumps was a possibility.
8 A. Yes, but -- I will refrain from appearing to give any
9 more medical evidence, but I think you should perhaps
10 inform yourself about the relationship between mumps and
11 swollen testicles in children of that age.
12 Q. You see, Mr Simpson then sees her and he gives
13 an opinion and the conclusion of his opinion is at
14 page [33918]. It is at paragraph 18.
15 A. We have got the wrong ...
16 Q. [33918]. My apologies:
17 "In the circumstances of this case the prosecution
18 will be called upon to explain the adjournment which
19 resulted from her non-attendance on 22nd December. The
20 explanation given by Ms [blank] is untruthful in my view
21 in the light of the police enquiries. It would be
22 inappropriate to put this version of events forward
23 knowing that, as will inevitably happen if she goes into
24 a witness box, she will give untruthful evidence."
25 A. Yes.
85
1 THE CHAIRMAN: Is Mr Simpson speaking there of the
2 Magistrates' Court?
3 A. Yes, I think he is.
4 MR McGRORY: In terms of the conduct of the preliminary
5 enquiry there was no necessity for the prosecution to
6 put anything forward about the adjournment?
7 A. I don't know whether that's the case or not. It
8 depends. The adjournment, as it were, was contested.
9 It was very unlikely at that the magistrate would stop
10 the case. He would have to have very strong grounds for
11 stopping the case simply because of the concern about
12 this adjournment, but he --
13 THE CHAIRMAN: I am not sure he has even the power. He
14 could have said, "This case will go on on the date fixed
15 whether or not Andrea McKee attends."
16 A. I think, sir, that is probably -- I think it is very
17 unlikely that he would ever have said -- unless he had
18 set a date like that, I think it is very unlikely he
19 would have said, "I am just not allowing this
20 adjournment and stopping the case". I think the whole
21 issue would have perhaps coloured his attitude to the
22 case perhaps.
23 MR McGRORY: Perhaps, perhaps, perhaps, Mr Morrison, but
24 this is the rough and tumble of taking prosecutions.
25 Perhaps your witness may not stand up. Perhaps your
86
1 witness may answer some questions in a way you wouldn't
2 like them to answer them. Perhaps, perhaps, perhaps,
3 but what we are talking about here is the stopping of
4 a prosecution --
5 A. Yes.
6 Q. -- on the basis of a possible lie about an adjournment.
7 What I am trying to get to the bottom of is that
8 your objective was to get to a preliminary enquiry and
9 to lead the evidence that you intended to lead about the
10 main issue.
11 A. That's what we hoped we would be able to do, yes.
12 Q. She may or may not be cross-examined about the reasons
13 she gave for not coming to court on 22nd December, and
14 you would have, in your duty of disclosure, handed over
15 anything you had.
16 A. We would.
17 Q. And so be it.
18 A. I think --
19 Q. That's all you had to worry about. There was no reason
20 to drop this prosecution.
21 A. There are questions going beyond that and there are
22 issues just about calling a witness that we consider to
23 be dishonest, whose credibility -- her credibility was
24 already thin, but, as I have said, she could have been
25 a very good witness, because she was saying, "I have
87
1 lied. I have done all sorts of things, but I am now
2 putting that behind me and telling you the entire
3 truth", but the problem is that we knew that she wasn't
4 telling the entire truth about other matters which were
5 connected with this case.
6 Q. You see, if you look at Mr Simpson's paragraph there, he
7 said:
8 "It would be inappropriate to put this version of
9 events forward knowing that, as will inevitably happen
10 if she goes into the witness box, she will give
11 untruthful evidence."
12 He appears to be suggesting there that, "We can't
13 lead this type of evidence". Is that what you
14 understood him to be saying?
15 A. Well, I am sure you can ask Mr Simpson about this.
16 Q. Yes, but what did you understand? You asked for the
17 opinion.
18 A. I have -- I don't have a memory of analysing that
19 particular paragraph of the opinion. I know what
20 ultimately his views were on the calling of Andrea and
21 I think it is not very profitable to try to remember how
22 I analysed that particular paragraph some years ago.
23 Q. You see, there are a lot of considerations to go into
24 the balance here that weren't in Mr Simpson's opinion,
25 some of which you have already touched upon.
88
1 One of them would be she has already -- the very
2 basis of the prosecution is that she told one lie.
3 A. Yes.
4 Q. That's the very basis of the prosecution.
5 A. Yes.
6 Q. And she is coming to court to say that she had
7 previously told a lie.
8 A. Yes.
9 Q. That, in fact, in an ironic sort of a way, strengthens
10 the case. Isn't that what you have just said to us?
11 A. Yes, provided that at this stage she is -- at this stage
12 nobody can point to her telling any new lies or any more
13 lies.
14 Q. Apart from that initial lie, one needs to look then to
15 other issues in terms of what has happened since, as you
16 say, and, in fact, she has actually pleaded guilty --
17 A. Yes.
18 Q. -- and got a suspended sentence.
19 A. Yes.
20 Q. That fact is admissible?
21 A. Yes.
22 Q. Not only did she plead guilty, but her husband pleaded
23 guilty?
24 A. Yes.
25 Q. That fact is also admissible --
89
1 A. Yes.
2 Q. -- under PACE. Isn't that right?
3 A. Yes.
4 Q. Those are pretty powerful indicators that her evidence
5 to the court on the fact that she told a lie about the
6 alibi is the truth?
7 A. That I think would have been our view and we would not
8 have directed a prosecution if we didn't think that her
9 evidence would have been impressive and I think the fact
10 she had pleaded guilty made it impressive, yes.
11 Q. That's the issue here. It is not mentioned in
12 Mr Simpson's opinion, nor is there any evidence that you
13 sat down with the Director and said, "Hold on a minute,
14 Director. There is this bit about Pendine, but so far
15 as the main issue is concerned, we have all of these
16 other things."
17 A. The relationship between the main issue and the issue on
18 which she was telling lies was certainly a matter for
19 our consideration.
20 Q. Of course, using an accomplice in any case is always
21 a situation where this issue has to be addressed as to
22 someone who has already been guilty of a crime --
23 A. That's right.
24 Q. -- as to whether or not they are now telling the truth.
25 A. Well, an accomplice could possibly have come to the
90
1 police and told the truth right from the start. So it's
2 not always an issue, but there are difficulties with --
3 accomplice evidence is not the most straightforward.
4 Q. No, but there is quite a bit of law on this, isn't
5 there, particularly in this jurisdiction, with the use
6 of supergrasses and so forth?
7 A. Yes. Well, there is quite a lot of experience of using
8 supergrasses.
9 Q. Of course, judges will say to juries or to themselves,
10 if it is a Diplock court, "Well, this witness may be
11 telling me lies about all sorts of things, but what
12 I have to decide is", or to the jury, "What you have to
13 decide is: is this witness telling the truth about the
14 substance of the case?"
15 A. That may be so. My recollection of the supergrass cases
16 is that, in fact, very few of them resulted in
17 convictions. There were acquittals either at first
18 instance or on appeal, and, generally speaking, the
19 judges I think found difficulties in deciding whether
20 a witness was -- they had concerns that some supergrass
21 witnesses were telling mostly the truth but some lies,
22 and they had difficulties in distinguishing between the
23 two, or being sure they could distinguish between the
24 two, and most of the defendants got the benefit of the
25 doubt.
91
1 THE CHAIRMAN: This case is far removed from a supergrass
2 case.
3 A. Yes.
4 THE CHAIRMAN: A supergrass is saying, "I have committed
5 many crimes", and then he is going to talk about maybe
6 quite a number of other crimes accusing others with whom
7 he may have committed those crimes.
8 A. Yes.
9 THE CHAIRMAN: But here, Andrea McKee had committed the one
10 crime. She had lied, you say, about Pendine.
11 A. Yes.
12 THE CHAIRMAN: That's a very different kettle of fish from
13 supergrass cases.
14 A. Yes.
15 THE CHAIRMAN: Very well.
16 MR McGRORY: The law is very, very clear, Mr Morrison, in
17 terms of a witness telling lies in the course of
18 evidence, particularly when it is an accomplice, the
19 court will take great care to closely examine what the
20 witness is saying about the main issue, and, indeed,
21 advise a jury to concentrate on that issue.
22 A. The court will always tell juries to consider the main
23 issue, yes, and to give careful consideration to that,
24 yes.
25 Q. That's what you should have been weighing up, but there
92
1 is no evidence in any of these papers that you sat down
2 with the Director and said, "Well, we have this problem
3 with Pendine, but against that we have all of these
4 things going for us."
5 A. I'm sorry, but it is quite clear that that was in the
6 Director's -- a matter that was in the Director's
7 consideration, and he, as it were, commissioned
8 Mr Simpson's opinion on that and there was further
9 consideration of that opinion, and that -- it was
10 a matter, shall I say, that was certainly considered.
11 Q. Just going back to 2nd June, Mr Morrison, isn't it the
12 case that what has happened here --
13 A. 2nd June?
14 Q. -- sorry, 2nd January -- was that you expressed doubts
15 about Andrea McKee to the defence and they lit on it?
16 That's what happened?
17 A. I am quite sure, I am quite certain that the defence had
18 expressed doubts about Andrea McKee without anything
19 that I may have said.
20 Q. And that you have got yourself completely deflected on
21 a side issue here?
22 A. I disagree.
23 Q. You utterly lost sight of the main purpose of this
24 prosecution and of the real strength of your case?
25 A. I disagree.
93
1 MR McGRORY: Thank you.
2 Questions from MR MALLON
3 MR MALLON: Just a very small number of questions.
4 A. Yes, Mr Mallon.
5 Q. I appear on behalf of the Atkinsons.
6 A. Yes.
7 Q. Now, as a prosecutor, can we take it that you would
8 never, ever deliberately mislead the court?
9 A. Yes.
10 Q. Can we also take it that you wouldn't cut, dice, parse
11 or so arrange the evidence of your knowledge or the
12 evidence that you had heard so that you wouldn't mislead
13 yourself, the court or any counsel?
14 A. Well, I would try very hard not to mislead the court or
15 counsel.
16 Q. So when it came to this incident in respect of the
17 adjournment on 22/12, the conditions of that adjournment
18 were transmitted to the court in all innocence?
19 A. Sorry. Are you talking about what we believed or what
20 we had been told --
21 Q. What you had been told.
22 A. Yes.
23 Q. The condition of the child was as outlined by
24 Constable Murphy?
25 A. Yes.
94
1 Q. The child might have had measles or might have had
2 mumps?
3 A. Yes.
4 Q. It might have had swollen testicles? It might have had
5 a high temperature? It might have been fitting?
6 A. Well, I think we were told that that was the case as far
7 as Andrea McKee had reported it to the
8 Detective Constable, yes, and that's what we passed on
9 to the court.
10 Q. The next day, when that child was examined by a doctor,
11 were any of those conditions found to be present?
12 A. Well, I can only rely on the information that we had,
13 which was, I think, an ear infection, and I think there
14 is something in the record about swollen glands.
15 Q. An ear infection?
16 A. Mainly an ear infection, yes.
17 Q. No mumps? No swollen testicles? No high temperature?
18 No fitting?
19 THE CHAIRMAN: Mr Mallon, we are not a jury and I don't
20 think we have forgotten the evidence we have heard on
21 this.
22 MR MALLON: Yes.
23 THE CHAIRMAN: No need to repeat it.
24 MR MALLON: In view of the way it was laboured by
25 Mr McGrory, I thought I had better make it clear.
95
1 If that's the case and you found out on the
2 22nd that the only infection was an ear infection, did
3 you feel you had been lied to?
4 A. I had an open mind at that time, Mr Mallon, because
5 enquiries were incomplete, and I certainly hoped that we
6 would receive evidence from Pendine Park that, despite
7 the fact that we had already got the negative statement
8 from Pendine Park, I still hoped that we would get
9 evidence there that would confirm, or more completely
10 confirm, what we had been told on 22nd December.
11 Q. Well, if we look at 22nd December, an adjournment
12 conditional on satisfactory evidence that was to satisfy
13 the court of the condition of the child would be
14 produced?
15 A. That was the reason for the -- that was the basis of the
16 adjournment, as far as I am concerned, yes.
17 Q. If it wasn't produced, then the whole issue of the
18 adjournment would be revisited. Isn't that right?
19 A. Yes. I think that was my understanding and that -- yes,
20 that's the case.
21 THE CHAIRMAN: Revisited in what way, Mr Mallon?
22 MR MALLON: In that Andrea McKee would be required to come
23 to the court to give her explanation in respect of those
24 matters.
25 A. Sorry, is that a question to me?
96
1 Q. Yes. Wasn't that the suggestion?
2 A. That suggestion had been made at some stage, but how --
3 I think it was a long way down the road before that
4 might happen, if it would happen at all. I think that
5 suggestion was made at some stage.
6 Q. Then she would be cross-examined. Along the road,
7 somewhere along the line, but somewhere, she would have
8 to meet that allegation of Pendine and the allegation
9 that the defence had been misled and the court had been
10 misled by the condition that she alleged her child
11 suffered from?
12 MR UNDERWOOD: It is a false premise that the court had been
13 told about Pendine.
14 MR MALLON: No, with respect, I said "somewhere along the
15 line".
16 A. It would have been, yes.
17 Q. Now, on the occasion when Andrea came back to deal with
18 the right of an adjournment -- the condition of the
19 adjournment --
20 A. Yes.
21 Q. -- she would have had to deal then with all the issues
22 that you would disclose to the defence, including
23 Pendine?
24 A. Yes. I think in reality, Mr Mallon, I think it was
25 very, very unlikely that we would ever put Andrea in the
97
1 witness box to deal with this issue alone, you know, on
2 the question of the adjournment, but, of course, if we
3 didn't put her in the witness box, I suspect that the
4 defence would have made a substantial issue out of that.
5 THE CHAIRMAN: It would have been for the magistrate to
6 decide whether she should go into the witness box to
7 deal separately with the adjournment or whether she
8 should give her evidence, in which case she could be
9 cross-examined about the adjournment?
10 A. Yes, that's right.
11 THE CHAIRMAN: Yes.
12 MR MALLON: I have to suggest to you that the magistrate had
13 left the day open for submissions in respect of the
14 adjournment alone. Do you remember that?
15 A. 2nd January certainly was just to deal with the
16 adjournment so that -- well, that is correct. That's
17 what it was.
18 Q. Then because you weren't ready to deal with them, that
19 was further adjourned until 13th or 14th January,
20 I suspect.
21 A. I think it may have gone to February. I'm not quite
22 sure.
23 Q. 13th or 14th February, when this whole issue was to be
24 raised and dealt with by the magistrate?
25 A. Yes.
98
1 Q. That would have involved, by that time, you having
2 disclosed to the defence that she had lied about
3 Pendine?
4 A. It would have involved disclosing, I think, the
5 enquiries that had been made and probably the statements
6 from witnesses at Pendine and other investigations by
7 the police, yes.
8 Q. They might all have had to have been called?
9 A. I don't think we would have called them.
10 Q. No, but they may have been required to be called?
11 THE CHAIRMAN: By whom?
12 A. By the defence.
13 THE CHAIRMAN: They can't require that.
14 MR MALLON: They can ask the court to do it.
15 THE CHAIRMAN: But it would have to be if the magistrate
16 agreed.
17 MR MALLON: If the court and the magistrate did agree, then
18 she would have had to give evidence which you, yourself,
19 knew to be untruthful?
20 THE CHAIRMAN: There is just a problem, isn't there, about
21 calling other police officers? That's calling evidence
22 as to credit, which is not permissible.
23 MR MALLON: However, Andrea McKee --
24 THE CHAIRMAN: She can be cross-examined certainly.
25 MR MALLON: -- would have had to give her evidence and be
99
1 cross-examined.
2 THE CHAIRMAN: Yes.
3 MR MALLON: In respect of that, their statements could have
4 been put to her and the truthfulness or untruthfulness
5 of her account been examined by a magistrate.
6 THE CHAIRMAN: Well, the allegations could be put to her.
7 MR MALLON: You see, I have to suggest to you that you
8 foresaw all of this and that you knew that this was not
9 a witness of truth and she would be exposed either at
10 this court or at a subsequent court as being put forward
11 by the prosecution, they knowing that she had lied.
12 A. Mr Mallon, on the 2nd January, I have set out in my
13 statement my views there and the difficulties about
14 proceeding. I hoped that some of those difficulties
15 might go away, because evidence might be produced about
16 Pendine Park, and I didn't know what the outcome would
17 be of enquiries about the threatening letter.
18 As time went on, clearly we had realised that there
19 were difficulties and that's why we took steps to deal
20 with those difficulties, to try to see -- try to gather
21 evidence as to what the true position was, to give
22 proper legal consideration to it by bringing in
23 Mr Simpson in discussions with the Director.
24 Q. That brings me to Mr Simpson.
25 A. So, I mean there was a number of scenarios that might
100
1 have developed in the future. I can't really say at
2 what time I faced each one of them.
3 Q. Yes. If we could go now to page [33918],
4 Mr Simpson's --
5 THE CHAIRMAN: Mr Mallon, will you be many minutes longer?
6 MR MALLON: No, no, this is the final moments.
7 THE CHAIRMAN: Very well then.
8 MR MALLON: Mr Simpson -- could we open 18, 19 and 20,
9 please, and enlarge them -- I suggest is absolutely
10 accurate when he says this:
11 "In the circumstances of this case the prosecution
12 will be called upon to explain the adjournment which
13 resulted from her non-attendance on 22nd December."
14 Would you agree entirely with that?
15 A. I agree that that was a matter that the magistrate was
16 still enquiring about, still interested in, yes.
17 THE CHAIRMAN: That's a paragraph referring to the
18 Magistrates' Court, isn't it?
19 A. It is, yes, Chairman.
20 MR MALLON: "The explanation given by Ms [name redacted] is
21 untruthful ..."
22 Would you agree with that?
23 A. Yes.
24 Q. "... in my view in the light of the police enquiries."
25 That's Mr Simpson's view. It is not a question of
101
1 you believing her, but on objective evidence she was
2 untruthful?
3 A. I think so, yes.
4 Q. He then goes on to say:
5 "It would be inappropriate to put this version of
6 events forward ..."
7 Do you concur with that?
8 A. Yes.
9 Q. Was that because of your duty as a prosecutor not to
10 mislead the court?
11 A. Well, the best we could have done would have been to put
12 forward the statements from Dr Barker, but at the same
13 time we would have had to put -- we would have had to
14 give other information so that we would have been in
15 difficulties. I mean, we could not have said, "This is
16 definitely what happened", because we have reason to --
17 Q. You wouldn't have cut, altered, changed or misled
18 anyone? That evidence would have all gone before the
19 court?
20 A. That information would have gone before the court, yes.
21 Q. That would have established her as untruthful again?
22 A. It is a matter for the magistrate what view he took on
23 the matter. He may have -- I mean, he may have taken
24 a -- well, one doesn't know what view he would have
25 taken, but I think he would have taken the view, yes,
102
1 that she was untruthful.
2 Q. But you do accept that it would be inappropriate to put
3 this version of events forward knowing that, as will
4 inevitably happen, if she goes into the witness box, she
5 will give untruthful evidence?
6 THE CHAIRMAN: Forgive me, Mr Mallon. You are asking your
7 question on a false premise.
8 One of two things could have happened in the
9 Magistrates' Court. Either the magistrate could have
10 said, "I want to go into this now, not as part of the
11 committal proceedings", in which case it would have been
12 perfectly proper for the prosecution simply to tender
13 Andrea McKee. They would not have to say, "This is what
14 happened or what she says happened". Simply tender her.
15 Alternatively, the magistrate could have said,
16 "I shall hear the committal evidence", in which event
17 the prosecution would have been perfectly entitled to
18 call Andrea McKee, to ask her about the offence itself,
19 ask her nothing about the adjournment and leave it to
20 the defence.
21 MR MALLON: Those are matters --
22 THE CHAIRMAN: So the premise that the prosecution was going
23 to have to put forward, if they called Andrea McKee,
24 a false account is simply wrong.
25 MR MALLON: Well, then, I have just taken that from
103
1 Mr Simpson's --
2 THE CHAIRMAN: I don't care.
3 MR MALLON: -- opinion. While you have said a number of
4 things and you may well be accurate in some of them or
5 all of them, the magistrate may also have taken the view
6 that, when she was tendered and cross-examined, she was
7 untruthful. Isn't that a really strong possibility in
8 this case?
9 A. Yes.
10 Q. It would have been very hard to come to any other
11 conclusion when you have read and seen the depth of the
12 police investigation and the articulate way in which she
13 lied?
14 A. Yes.
15 Q. Your own evidence and that of Christine Smith, if you
16 had been called, would have had to confirm that. You
17 would have had to say she lied, wouldn't you?
18 A. Yes, I'm just looking at the possibility --
19 THE CHAIRMAN: Excuse me. Are you envisaging Mr Morrison or
20 Miss Smith could have been called? That is nonsense.
21 MR MALLON: I suggest --
22 THE CHAIRMAN: A witness cannot be called to say "I think so
23 and so is lying".
24 Now, let's get on to something else if there is
25 anything else. You are not going to pursue this line.
104
1 MR MALLON: Would you also agree with Mr Simpson in
2 paragraph 19:
3 "The overall effect of her maintenance of the
4 story", that is the untruthful story that she had, "for
5 which there is not a thread of corroboration, is to
6 contaminate any evidence that she may give ..."
7 Would that be your view as a prosecutor?
8 A. Yes.
9 Q. "... and completely to undermine her general
10 credibility."
11 Would that be your view as a prosecutor too?
12 A. It would have undermined her credibility, yes.
13 Q. Would you then agree with Mr Simpson's conclusion:
14 "In those circumstances, I am not in a position to
15 advise that she can be put forward by the prosecution as
16 a witness capable of belief."
17 Would that have been your view as well?
18 A. Yes.
19 MR MALLON: Thank you very much.
20 THE CHAIRMAN: We will break off until 2.10 pm.
21 (1.10 pm)
22 (The luncheon adjournment)
23 (2.10 pm)
24 THE CHAIRMAN: Mr Underwood, can I correct something I said
25 this morning?
105
1 I said that the magistrate could, if he had wished,
2 have simply heard Andrea McKee on the adjournment issue.
3 He would have been ill-advised to do that, because, had
4 he done that, he would then have had to recuse himself
5 from hearing the committal proceedings, having formed
6 a view about a witness before the witness was called in
7 those proceedings.
8 MR UNDERWOOD: Yes.
9 THE CHAIRMAN: So really, he had only one course open. That
10 was simply to hear the committal.
11 Yes, Mr Berry?
12 Questions from MR BERRY
13 MR BERRY: Mr Morrison, I am Greg Berry. I appear for
14 Andrea McKee. You will be pleased to know I intend to
15 move you away from testicles to concentrate a bit on
16 court procedures. I want to ask you just about the
17 committal process. You have described in a little
18 detail your understanding of it and I'd just like to
19 explore that with you, if I may.
20 Now, your understanding of the role of the
21 magistrate, could you outline what that was at committal
22 stage?
23 A. The role of the magistrate is to hear evidence,
24 generally evidence presented by the prosecution,
25 although he may hear evidence by the defence, although
106
1 that would be extremely unusual, and decide whether --
2 basically whether there is a prima facie case. It is
3 not exactly how it is expressed in the Act, but that
4 I think is how it is interpreted.
5 Q. It is correct, is it not, that the magistrate has to
6 take the prosecution evidence at its height?
7 A. That would generally be the case.
8 Q. Yes. Well, it is the case, is it not?
9 A. I think he has to take the evidence as he finds it and
10 make up his mind.
11 Q. Yes, and that involves a process of taking the
12 prosecution case at its reasonable height?
13 A. I don't disagree with that.
14 Q. In terms of a committing magistrate, you have mentioned
15 about a prima facie case. We have discussed about
16 taking the case at its reasonable height.
17 Is it part of the magistrate's function, as you
18 understand it, to determine issues about a witness'
19 credibility?
20 A. That rarely would arise. I think if a magistrate was
21 faced with a witness that was so conflicted that he felt
22 he couldn't believe the witness at all, then I think
23 that he should make a judgment about that.
24 Q. That, of course --
25 THE CHAIRMAN: That would be a very rare case, wouldn't it?
107
1 A. It would be a very rare case.
2 MR BERRY: That would be a rare case, but it would be
3 confined, would it not, to evidence in respect of the
4 charge or charges that the magistrate was being asked to
5 return upon?
6 A. Again, generally, that would be the case. Every case is
7 different and one doesn't know what may arise in the
8 course of a particular case.
9 Q. Now, dealing with this case, if Andrea McKee had been
10 called, say, in March or April 2004, to give evidence at
11 the committal, you would have expected the prosecutor to
12 simply ask her about her evidence in respect of the main
13 issue, I think, as the Director referred to it.
14 A. If we got to that stage, yes.
15 Q. Well, if she is called to give evidence -- and she was
16 being required to give evidence, wasn't she? This was
17 a mixed committal?
18 A. It was.
19 Q. If she is being called to give evidence by the
20 prosecutor, the prosecutor would ask her about the
21 allocations insofar as she could give evidence in
22 respect of the charges?
23 A. Yes.
24 Q. She would be subject to cross-examination?
25 A. She would.
108
1 Q. And that cross-examination would be potentially in
2 relation to the charges. Yes?
3 A. Generally, it would. That would generally be the case,
4 yes.
5 Q. The defence may attempt to ask her about matters
6 relating to her credibility?
7 A. They may.
8 Q. Now, if the matter had got to that stage, you presumably
9 would have disclosed material to the defence in relation
10 to Pendine and your enquiries?
11 A. The likelihood is that that would have happened
12 substantially before this, when issues about the
13 adjournment were resolved.
14 Q. Yes, but certainly prior to her giving evidence?
15 A. Yes.
16 Q. Yes. Now, if the defence had asked her about Pendine,
17 did you consider that the prosecutor could legitimately
18 object to that as being a collateral matter in terms of
19 committal proceedings?
20 A. Yes, the prosecutor could have objected.
21 Q. Because the magistrate is being asked to decide on the
22 charges, evidence relating to the charges.
23 A. Yes.
24 Q. Isn't that right?
25 A. That is right, yes.
109
1 Q. So again, if that objection had been made, and indeed
2 sustained, would you have expected that the accused
3 would have been returned for trial on indictment?
4 A. In the event that you are talking about, if we had
5 reached that stage, and that -- she had given her
6 evidence about the offences and that had not -- and that
7 evidence, as it were, hadn't been severely damaged by
8 cross-examination on the issues, then, yes, I would have
9 expected her to be returned for trial -- the defendants
10 to be returned for trial.
11 Q. Yes. Now, if they had been returned for trial, the next
12 stage in the process in terms of the court is
13 arraignment. Isn't that right?
14 A. That is correct, yes.
15 Q. At that stage, of course, some or all of the defendants
16 may have pleaded guilty?
17 A. That, I think, is extremely unlikely in this particular
18 case.
19 Q. Well, it happens, doesn't it?
20 A. It does happen, but, I mean, one -- they had every right
21 to plead not guilty and there was every expectation that
22 they would plead not guilty. This was a very serious
23 charge for them all and it's hard to conceive of any
24 situation where they would have pleaded guilty.
25 Q. Let's take it that they pleaded not guilty and we move
110
1 on to the trial itself and Andrea McKee is called to
2 give evidence?
3 A. Yes.
4 Q. She gives evidence about the main issue and she is asked
5 about that by the prosecutor, gives her
6 evidence-in-chief and then is susceptible to
7 cross-examination.
8 A. Yes.
9 Q. Now, at that stage, she could, of course, legitimately
10 be cross-examined about matters affecting her
11 credibility. Isn't that right?
12 A. Yes.
13 Q. Presumably you anticipated that she could well be asked
14 about Pendine and matters of that nature?
15 A. I don't think that I took scenarios, as it were, that
16 far, to be quite honest.
17 Q. Why not?
18 A. Because of the -- I think one of the issues here is
19 because the -- we, as a department, with the advice of
20 counsel, had decided that this witness was no longer
21 a credible witness and, having made that decision, it
22 wasn't going to get that far.
23 Q. Well, do you accept that in all likelihood if she had
24 been put into the witness box at committal, there would
25 have been a return?
111
1 A. I don't know, but if she had given the evidence that was
2 in her statement, I think that is likely, yes.
3 Q. Can I ask you just about the Crown Court? If she had
4 given evidence and were cross-examined about Pendine,
5 that's a matter going to her credibility. Isn't that
6 right?
7 A. It is, but it's closely associated with this case and
8 it's not an entirely separate matter. It's not a matter
9 of, say, another offence that she might have committed
10 otherwise --
11 THE CHAIRMAN: Credibility only, I am afraid.
12 MR BERRY: Can I ask you this in relation to that? There
13 was other material that presumably a jury could
14 consider, not just her evidence. Isn't that right?
15 A. There was the evidence of the telephone call. There was
16 technical evidence of the telephone call and there was
17 her plea of guilty and her husband's plea of guilty.
18 Q. Yes. What about her husband's plea of guilty? What
19 consideration was given to that?
20 A. The likelihood is that that would have been served as
21 additional evidence.
22 Q. Yes. To what end and purpose?
23 A. Because it would have been admissible, because it would
24 have given some additional strength to her evidence.
25 Q. How so?
112
1 A. It would have simply let the jury know that someone else
2 had pleaded guilty to this conspiracy. It would not
3 have been -- on its own, it would have been absolutely
4 no evidence against the defendants at all, but it would
5 be of some strength to the evidence of Andrea. She had
6 given that evidence.
7 Q. Was it your view that the jury, for example, would be
8 informed that Mr McKee received a sentence of immediate
9 custody?
10 A. That might well be. That would be likely, yes.
11 Q. Now, the factors you have identified together with any
12 evidence of Mrs McKee on indictment, would you agree
13 with me that those are matters which essentially would
14 normally be left for a jury to weigh?
15 A. Yes, if it got to that stage.
16 Q. In terms of those factors that you have listed, those
17 matters for a jury to weigh, would you agree that they
18 amount to a compelling prosecution case?
19 A. Depending on the view that the jury took of
20 Andrea McKee, yes.
21 Q. That's really it, Mr Morrison. You have hit the nail on
22 the head, have you not? Depending on the view that the
23 jury took of Andrea McKee, but also of the other factors
24 that you have enumerated. Isn't that it?
25 A. Substantially the first.
113
1 Q. But also the other matters?
2 A. Yes.
3 MR BERRY: Thank you, Mr Morrison.
4 Questions from MR McCOMB
5 MR McCOMB: Just one question, sir. Just arising out of the
6 last.
7 At that time in the early part of the 2000s, when
8 this trial might have started --
9 A. Yes.
10 Q. -- there was -- the undercurrent at least suggested that
11 there was a Loyalist element involved. Would that be
12 fair enough to say?
13 A. Yes.
14 Q. I am just asking you that in the context of, what do you
15 think, Mr Morrison, would have been the likely form of
16 trial here? Would it have been a scheduled one or ...?
17 A. This would not have been a scheduled one I think because
18 it was not a scheduled offence.
19 MR McCOMB: Right. Thank you.
20 THE CHAIRMAN: So it would have been a jury trial, would it,
21 for those of us who are foreigners?
22 A. Yes.
23 Questions from MR EMMERSON
24 MR EMMERSON: Mr Morrison, if I can just deal with one
25 relatively formal matter first. Mr McGrory put to you
114
1 that the evidence that you have given here today is the
2 first time anybody had raised the fact that, on
3 19th December, no mention had been made by Andrea McKee
4 of the sickness of her child as a factor relevant to
5 assessing the credibility of the account that was
6 subsequently given in relation to Pendine.
7 Could I ask you, please, just briefly to look at
8 [33911]? This is in your rolling summary of events.
9 Paragraph 15.
10 A. Yes.
11 Q. Did you there record that during the course of that
12 contact on 19th December, as related by the
13 detective constable whose name appears there --
14 A. Yes.
15 Q. -- "Andrea appeared happy with the arrangements and at
16 no time during the conversation did she mention the fact
17 that her son was sick."
18 A. That's correct.
19 Q. If we can look briefly at [33916], please, at
20 paragraph 4 of Mr Simpson's opinion, does he there
21 record:
22 "On Friday, 19th, Ms McKee was contacted by the
23 [officer] to confirm the final travel arrangement. She
24 did not mention the problems with the child to [the
25 officer] but indicated that the arrangements were
115
1 suitable. In consultation with her I asked her about
2 this failure to alert police to any potential difficulty
3 which the sickness of the child might cause. She told
4 us that she had thought that she had mentioned it to
5 police and agreed that it was surprising that she did
6 not mention the illness of the child to
7 Detective Constable Murphy."
8 Do you see that?
9 A. I do.
10 Q. You were at that consultation, were you not?
11 A. I was.
12 Q. That's the consultation that took place on 2nd March.
13 A. Yes.
14 Q. Just to be absolutely clear, was that a factor that you
15 had discussed with Mr Simpson as being material to the
16 relevance and importance of Pendine?
17 A. Yes, it was.
18 Q. The materiality of it was that something must have
19 happened between the 19th and 21st to change her
20 position from one where she was willing to travel to one
21 where she was not?
22 A. Yes.
23 Q. The only medical appointment that had happened between
24 the 19th and 21st was the claimed attendance at Pendine?
25 A. That's correct.
116
1 Q. Thank you.
2 Now, various questions have been put to you about
3 the reasons for the investigation of Pendine. We know
4 from other evidence that Detective Sergeant H spoke to
5 Andrea McKee on 30th December as part and parcel of
6 investigating the medical attendances, and by then there
7 was confirmation of the 1st and 22nd.
8 A. Yes.
9 Q. But it was during a conversation between he and she on
10 the 30th that she first mentioned both the home visit on
11 the 11th --
12 A. Yes.
13 Q. -- and her attendance at Pendine?
14 A. Yes.
15 Q. Now, we have also heard from other evidence that the
16 police immediately and spontaneously sprang into action
17 to investigate both those matters without intervention
18 from the Director's office or from yourself.
19 A. That's correct.
20 Q. So can we take it then that the investigation into
21 Pendine was well underway before you were even aware
22 that Pendine had been mentioned or was the subject of
23 investigation by the police?
24 A. It -- I was made aware, I think, that they were going to
25 see the doctors in Pendine on -- during the day -- they
117
1 saw the doctor who made the negative statement, as it
2 were --
3 Q. Yes.
4 A. -- in the evening. I think they did let me know that
5 they were going to see somebody that evening with
6 a complete expectation of getting a positive statement.
7 Q. From the point of view of everybody investigating at
8 that stage, there was no reason to suppose that she
9 would have lied about a matter of that kind. Is that
10 right?
11 A. No, there was no reason at that stage.
12 Q. As those investigations progressed, and at each stage of
13 the way it was not possible to substantiate what
14 Andrea McKee had said about that visit, were those
15 investigations being conducted and directed by the
16 police themselves?
17 A. They were.
18 Q. What role, if any, did you have in directing the police
19 investigation?
20 A. No role in directing it. I heard from them from time to
21 time as to where they had got to, but, no, I had no role
22 in directing it.
23 Q. I think there came a time after the 9th January
24 consultation in which a description had been given of
25 the appearance of the doctor when further investigations
118
1 were conducted to see if there was any doctor on duty
2 over the weekend who might have matched the appearance
3 that had been given during the consultation with
4 Christine Smith. Is that right?
5 A. That's right.
6 Q. What would have been the position with those
7 investigations? Would they have been investigations at
8 your specific request or would they have been
9 investigations conducted by the police off their own
10 bat?
11 A. They would have been conducted by the police off their
12 own bat.
13 Q. Can we look, please, at [33983]? This is a letter that
14 I think has been shown to you more than once.
15 A. Yes.
16 Q. This is a letter dated 16th February referring to the
17 upcoming hearing on 27th February, in which it is
18 suggested that statements may have to be made by
19 yourself and Miss Smith.
20 A. That's right.
21 Q. "... to cover this point", as the letter puts it.
22 A. That's right.
23 Q. I think it was suggested to you in questioning that this
24 letter was evidence that you had somehow tipped the
25 defence off --
119
1 A. Yes.
2 Q. -- at the 2nd January hearing --
3 A. Yes.
4 Q. -- that there was a problem with Andrea McKee and
5 corroborating her account.
6 Do you remember that suggestion being put to you?
7 A. Yes, I do, yes.
8 Q. First of all, would there, in your view, be anything
9 improper about you informing the defence on 2nd January
10 that, though some medical evidence was available, it was
11 not available to deal with the period between 19th and
12 21st?
13 A. There would have been nothing wrong with that as far as
14 I know.
15 Q. You have said earlier on that you thought it would be
16 professionally improper to give the defence certain
17 medical evidence when you knew there was a problem --
18 A. Yes.
19 Q. -- over what she had said about Pendine without also
20 alerting them to the fact that there was a problem. Is
21 that correctly understood?
22 A. That is correctly understood.
23 Q. Do you know now whether you gave them the statements,
24 such as they were, on or before 2nd January?
25 A. Certainly not before 2nd January. I believe that I did
120
1 give them Dr xxxxxxxx's statement, but I have no certain
2 recollection of that.
3 Q. Plainly, we can see from later interchanges that they
4 must have had those statements by 27th February?
5 A. Yes.
6 Q. Because there is reference in the course of your note of
7 the hearing to the contents of the documents in the
8 sense that they refer to an ear infection.
9 A. Yes, that's right.
10 Q. For the sake of clarity, you don't know, or you do know,
11 when those statements were handed over to the defence?
12 A. I don't know for certain.
13 Q. But is it your evidence that, as and when you did hand
14 them over, you would have made the defence aware that
15 there was more to the account that Andrea had given?
16 A. Yes.
17 Q. Than was revealed on the face of those statements?
18 A. That would be correct, yes.
19 Q. Now where the letter here suggests, if we just look at
20 it in a little more detail, the second half of it.
21 Mr Monteith says:
22 "Clearly I will be relying upon the very firm
23 explanations given to me by yourself and Crown counsel
24 with regard to the alleged sickness of the Crown
25 witness's child. It may well be that there will
121
1 actually have to be a witness statement prepared by
2 yourself and Miss Smith to cover the point, particularly
3 if Mrs McKee ... attempts to give a different version."
4 Do you see that?
5 A. I do.
6 Q. Now, am I right in thinking that on 2nd January
7 Christine Smith was not in attendance at the
8 Magistrates' Court?
9 A. She was not.
10 Q. So this can only be a reference to what was said on
11 22nd December?
12 A. Yes.
13 Q. So did you understand this letter then to be suggesting
14 that you and Miss Smith might have to make a statement
15 about the representations that had been made on
16 22nd December?
17 A. I did understand that to be Mr Monteith's view, yes.
18 Q. Leaving aside the realism of that --
19 A. Yes.
20 Q. -- there is no suggestion that you were going to be
21 asked to make statements about what may or may not have
22 been said on 2nd January?
23 A. No.
24 Q. Can we look, please, at [33913], because it has been
25 suggested to you by Mr McGrory that really what you
122
1 should have done at these hearings was just to put
2 forward the incomplete medical evidence that supported
3 the ear infection and suspected mumps without saying
4 anything --
5 A. Yes.
6 Q. -- about the problems that had by then been identified,
7 and really let the magistrate crack on and decide the
8 matter on the basis of what would, on any view, have
9 been an incomplete and misleading representation about
10 the state of the medical evidence.
11 MR UNDERWOOD: I don't think that's right. There was no
12 suggestion that the magistrate would have to crack on
13 and make that decision.
14 MR EMMERSON: Very well. The magistrate would have --
15 I thought that the suggestion that had been made by
16 Mr McGrory was that you should have put before the
17 magistrate only the evidence that positively supported
18 contact with the GP without informing the court or the
19 defence that there was a major lacuna in relation to the
20 account that she had given as to what had happened
21 between the 19th and 21st to justify her change of
22 stance.
23 If I have misunderstood the suggestion, then
24 obviously I will be corrected, but that was what
25 I thought was being put to you.
123
1 A. That's what I understood was being put to me. I mean,
2 that situation just -- I would have been entirely wrong
3 to do that, because it would have completely been
4 contrary to my duties of fairness and duties of
5 disclosures, etc, to do that at that time.
6 Q. But we can see as well, can we not, from paragraphs 31
7 and 32, that at that hearing on 27th February the
8 defence by then are aware of what the state of the GP
9 evidence was: namely, an ear infection and suspected
10 mumps?
11 A. Yes.
12 Q. The defence were, if I can put it this way, making
13 a song and dance about the fact that the medical
14 evidence that you were producing to them thus far did
15 not support the gravity of the condition as it had been
16 represented to the court on 22nd December.
17 A. Yes, that's correct.
18 Q. Just to pick up the suggestion that Mr McGrory made
19 that, really, it should have been left to the magistrate
20 to look at that material and decide for himself whether
21 he thought that was sufficient -- I thought that was the
22 way it was put -- if we could just pick up the way the
23 magistrate did react to that material as it then was --
24 A. Yes.
25 Q. -- just halfway down paragraph 32:
124
1 "The resident magistrate indicated that he
2 considered the situation most unsatisfactory ..."
3 Do you see that?
4 A. Yes.
5 Q. "... that it appeared that the court had previously been
6 misled. He referred to the amount of time which had
7 passed since committal proceedings had started and the
8 consequences which might follow from that."
9 Can we just check the following page, [33914]:
10 "With reluctance, he adjourned the case until
11 19th March but required that there should then be some
12 form of finality."
13 A. Exactly.
14 Q. Can you just help us from recollection, please, if there
15 is anything you can add to that, what the magistrate's
16 reaction was to being told that there was some medical
17 evidence, albeit medical evidence that did not fully
18 support the representations that had been made on
19 22nd December?
20 A. Well, he really just thought the situation was
21 unsatisfactory. He wanted the situation resolved by
22 appropriate and full evidence being presented to him in
23 due course, as soon as possible.
24 Q. Can you help us as to this: if the magistrate is
25 expressing the view that he thought he had been misled,
125
1 there are two obvious possibilities there.
2 One is that he thought he was being misled because
3 the medical evidence supported attendances or
4 consultations with the GP on the 1st, 11th and 22nd, but
5 did not go so far in relation to the condition as the
6 representations had gone on 22nd December.
7 That's one possible way he may have reached that
8 conclusion?
9 A. Yes.
10 Q. The other possible way is he may have been alerted,
11 either by yourself or by defence counsel, to the fact
12 that, though this evidence was there, there was
13 a further enquiry based on what Andrea McKee had said
14 about her attendance between the 19th and 21st which
15 could not be corroborated.
16 Do you remember now which of those two it was?
17 A. I think it was the first. I don't think he was aware of
18 the Pendine Park issue as far as I know.
19 Q. But presumably, all parties were aware that you did not
20 regard the medical evidence you had as sufficient,
21 because otherwise you would not have been asking for
22 adjournments?
23 A. That would be correct, yes.
24 Q. Can we just go to the meat of the final process by which
25 the decision came to be taken that Andrea McKee's
126
1 credibility on the central issues had been fatally
2 undermined by her lies about Pendine?
3 A. Yes.
4 Q. I just want to see if I can just get certain issues
5 here. You, you have told us, were present at both the
6 consultation on 9th January in Wrexham with
7 Christine Smith. Correct?
8 A. Yes.
9 Q. And the consultation with Gerry Simpson on 2nd March?
10 A. That's correct.
11 Q. I think you are the only member of the prosecution team
12 who was present at both.
13 A. That's right.
14 Q. Now, a lot has been said so far about the fact that
15 aspects of her account could not be corroborated because
16 there was no record of her attendance at the Pendine
17 clinic or the telephone calls between the two.
18 A. Yes.
19 Q. I just want to ask you about that one aspect that has
20 not been brought out in the questions which have been
21 put to you, which is a very specific aspect in the way
22 she sought to explain herself.
23 A. Yes.
24 Q. We have seen records that show when she first told DSH
25 about Pendine on 30th December, she claimed that the
127
1 doctor she had seen at Pendine was a woman.
2 A. Yes.
3 Q. That was shown to you by Mr Underwood.
4 A. It was, yes.
5 Q. We know from the notes of the meeting that took place in
6 Wrexham on 9th January that she told you and
7 Christine Smith that the doctor who had examined the
8 child was a grey-haired man.
9 A. That's right.
10 Q. Do you recall at that stage questioning her about that
11 discrepancy?
12 A. Christine Smith was handling most of the questioning.
13 I can't say for certain at this moment. I would have to
14 refer to her notes.
15 Q. But she was asked in some detail about the examination
16 itself?
17 A. She certainly was, yes.
18 Q. As we have seen and heard from Christine Smith's notes
19 and testimony, she told the two of you that in the room
20 with the doctor and the child she had seen the doctor
21 physically examine the child by effectively palpating
22 its glands. Do you remember that part?
23 A. I do remember that.
24 Q. Then later, on 2nd March, once it had become clear
25 through police investigations that there was no
128
1 grey-haired male doctor on duty at any possible relevant
2 time --
3 A. Yes.
4 Q. -- that contradiction was put to her by Mr Simpson --
5 A. It was, yes.
6 Q. -- her reaction then was to say in fact she had not gone
7 into the consulting room but had remained outside --
8 perhaps surprisingly for a mother taking a sick child --
9 in the waiting room?
10 A. Yes.
11 Q. That was a change of position which was regarded,
12 I think, with some significance. Is that right?
13 A. Yes. It --
14 THE CHAIRMAN: You will remember he is in effect your
15 witness and not lead him?
16 MR EMMERSON: Yes. I was going to ask an open question to
17 him immediately following. I think this is common
18 ground in the sense it is on the documentation that that
19 was an issue that was flagged up as one of significance.
20 A. It meant an indication to us that she was a person who
21 was prepared to change her ground and change her story
22 when challenged about a particular issue, about
23 a particular fact.
24 Q. Can you elaborate for us at all on any discussions that
25 took place between you and Mr Simpson about the impact
129
1 of that particular apparent lie?
2 A. Well, I believe he -- I mean, he considered this to be
3 a blatant lie, an example of where she was prepared to
4 change her story as it suited her or as the
5 circumstances that were put to her changed.
6 At this moment, I can't remember my particular
7 conversation with ...
8 Q. Can you just explain in your own words, please, how and
9 why you reached the conclusion that the various lies you
10 concluded she had told about Pendine undermined her
11 credibility on the central issues about which she was to
12 testify?
13 A. Yes. By that time, by the time we had gone through this
14 process, it appeared to us she was a witness who was
15 prepared to lie, was prepared to change her story when
16 challenged about a particular issue, that if she was put
17 in the witness box and was subject to cross-examination,
18 as she undoubtedly would have been, there was a danger
19 that she would change her story then, that she would not
20 confine her lies, as it were, to particular aspects of
21 her evidence, but, when it suited her, would lie about
22 other matters when put in a corner, as it were, when
23 forced into a corner, and that this generally brought us
24 to the conclusion that, apart from anything else, this
25 was a witness that we could not have any trust in and
130
1 that destroyed, for us, her general credibility.
2 I haven't said this before, but it generally
3 destroyed the relationship -- the trust that you want to
4 have between prosecutor and witness
5 Q. You were asked some questions about what might have
6 happened with that state of assessment as regards the
7 preliminary enquiry and whether the case would have been
8 returned?
9 A. Yes.
10 Q. Can I ask you this: when you were making the assessment
11 of the impacts, that the lies you concluded she had told
12 would have on her credibility in relation to the main
13 issues, were you focused solely on the committal or on
14 the ultimate trial as well?
15 A. No, we would have been focused on the question --
16 I mean, the ultimate question is: is there a reasonable
17 prospect of conviction of these defendants on the basis
18 of this witness' evidence?
19 Q. A reasonable prospect of conviction at trial?
20 A. Conviction at trial. That's the test for prosecution
21 and that's the test we applied. There clearly may have
22 been difficulties at the committal and we thought about
23 that, but that, at the end of the day, the ultimate
24 question, and the question in every case, is: is there
25 a reasonable prospect of a conviction of the defendants
131
1 at -- in front of the proper Tribunal, which would have
2 been the Crown Court in this case. That's a decision
3 that's made in every case. It's a decision which is
4 reviewed from time to time when there is a change in
5 circumstances, which there clearly was in this case.
6 Q. Presumably it's a decision that can being made depending
7 on circumstances of any particular case either before or
8 after the case has been returned for trial?
9 A. It can. It is made on occasions after the case has been
10 returned for trial. Fairly unusual, but there may be
11 a change of circumstances that would require that
12 decision to be made.
13 Q. I mean, you have heard the point being put to you that,
14 at committal, for the purposes of a preliminary enquiry,
15 the magistrate is required to take the evidence at its
16 highest and effectively not to consider matters of
17 credit that might be relevant to the ultimate Tribunal
18 of fact.
19 A. Yes.
20 Q. With that consideration in mind, if a prosecutor --
21 leave this case aside -- just as a matter of principle,
22 if a prosecutor came to the view that the decisive
23 witness was a witness whose evidence no longer afforded
24 a reasonable prospect of conviction because of doubts
25 about their credibility that could not be considered at
132
1 committal --
2 A. Yes.
3 Q. -- would the fact that the case might squeeze through
4 committal because credibility was not a relevant
5 consideration make any difference to the ultimate
6 decision about whether it was right for the prosecution
7 to proceed?
8 A. It wouldn't have a -- if it was something that was going
9 to affect the trial, then the question -- the fact that
10 it might go through committal would be irrelevant if
11 there wasn't, at the end of the day, a reasonable
12 prospect of conviction at trial.
13 MR EMMERSON: Thank you.
14 Further questions from MR UNDERWOOD
15 MR UNDERWOOD: A couple of things arising out of that,
16 Mr Morrison.
17 Do I take it then, as of 18th March 2004, you
18 believed that she and her husband had falsely pleaded
19 guilty?
20 A. No, not at all.
21 Q. Did you believe, as of 18th March 2004, that a jury
22 would probably find that she and her husband had falsely
23 pleaded guilty?
24 A. No.
25 Q. Why on earth didn't you let the jury decide the case
133
1 then?
2 A. I am sorry, I find that an incredible question.
3 MR UNDERWOOD: Okay. Thank you.
4 THE CHAIRMAN: I am afraid I don't.
5 A. Well, I am sorry.
6 THE CHAIRMAN: Just help us, will you, about this?
7 I understand what you say about the relevance of Pendine
8 to the adjournment consideration.
9 A. Yes.
10 THE CHAIRMAN: When you considered in relation to her
11 credibility, did you consider what she said about
12 Pendine in the light of any other factors and, if so,
13 what?
14 A. It was certainty -- her credibility was considered in
15 the light of Pendine, in the light of the fact that she
16 had -- her sudden change of heart between 20th --
17 sorry -- between the 19th and 21st, and her easy ability
18 to say there was this medical emergency, as it were,
19 indicated a very -- that in itself seemed to tell us
20 that she had lied to us even about the child -- the
21 extent of the child's illness when she spoke to the
22 policewoman on the Sunday. These are all matters which
23 went to our consideration of her credibility.
24 THE CHAIRMAN: Are there any other factors that you took
25 into account, or is that it?
134
1 A. Well, I think her performance, as it were, at
2 consultation, her changing of her story, her changing of
3 details at consultation persuaded us that she was
4 a person who was very capable of and likely to tell
5 lies.
6 THE CHAIRMAN: Thank you very much.
7 Further questions from MR McGRORY
8 MR McGRORY: Sir, before the witness leaves, may I seek to
9 clarify one particular issue, and that is precisely what
10 happened on 2nd January in terms of what was given to
11 the magistrate and what was given to the defence?
12 Because I think the witness has given evidence in answer
13 to questions from Mr Emmerson that he thinks he may have
14 given Dr Barker's statements to the defence.
15 Now that I think is new evidence and I would like to
16 ask a very small number of supplementary questions
17 around that.
18 THE CHAIRMAN: I think I will ask Mr Morrison -- he has
19 heard what you say --
20 MR McGRORY: Yes, of course, sir.
21 THE CHAIRMAN: -- what he says about that.
22 A. I think it's quite possible that I did give the
23 statements of Dr Barker to the defence at that stage.
24 I don't think I gave them to the court.
25 THE CHAIRMAN: Thank you. Thank you. That's it.
135
1 A. Thank you.
2 (The witness withdrew)
3 MR UNDERWOOD: Mr McCarey, please.
4 Sir, I anticipate Mr McCarey's evidence is going to
5 be very short and then we are going to need a break for
6 technical reasons.
7 MR WILLIAM ALEXANDER RONALD McCAREY (sworn)
8 Questions from MR UNDERWOOD
9 MR UNDERWOOD: Good afternoon, Mr McCarey.
10 A. Good afternoon.
11 Q. My name is Underwood. I am Counsel to the Inquiry.
12 May I ask your full names, please?
13 A. It is William Alexander Ronald McCarey.
14 Q. I think you kindly signed a witness statement for us on
15 22nd July this year, which we will see at page [81907].
16 A. Yes, I did.
17 Q. Let's just make sure we are talking about the same
18 document.
19 A. Okay.
20 Q. Look at that and the next page, if you would. That is
21 it, is it?
22 A. Yes.
23 Q. Is it true?
24 A. It is, yes.
25 Q. Thank you. You refer on the second page there, [81908],
136
1 to a report you produced in the neglect of duty case,
2 which also involves the tip-off allegation.
3 A. Yes.
4 Q. Can I take you to that, in particular picking it up at
5 page [19316]? If we take paragraph 279 onwards, you
6 say:
7 "Similarly in relation to the allegation by
8 Witness A that Reserve Constable Atkinson may have been
9 in touch with Allister Hanvey in order to tell him to
10 get rid of the clothes which he had been wearing on this
11 occasion and that he had been keeping him informed of
12 development in the police investigation, I do not
13 consider that the evidence is sufficient to warrant
14 prosecution.
15 "It might be thought highly suspicious that there
16 was a telephone call from Atkinson's phone to Hanvey's
17 home at 8.37 am on 27th April, the day of these
18 incidents and a further such call on 2nd May 1997.
19 "Witness statements have, however, been recorded
20 from Mr and Mrs McKee and from Mrs Atkinson which give
21 an innocent explanation for these telephone calls.
22 "There is no evidence in relation to those matters."
23 Do I take it from that that nothing stood out for
24 you on the neglect file that called for further
25 investigation?
137
1 A. Yes. That's exactly right.
2 Q. Is this fair, that if something had stood out from the
3 neglect file that called for further investigation, you
4 would have considered directing it?
5 A. I would.
6 Q. Thank you. It is apparent, of course, from your
7 consideration of the neglect file that there had been
8 these allegations against Mr Atkinson as at the date he
9 gave evidence against Hobson. Is that true?
10 A. Sorry. Could you ask me that again, please?
11 Q. Yes, of course.
12 It would have been apparent to you, would it, from
13 your consideration of the neglect file that the tip-off
14 allegation was hanging over Mr Atkinson as at the date
15 he gave evidence?
16 A. Yes.
17 Q. Did that trouble you?
18 A. I am not sure that it troubled me. We were concerned
19 obviously to get to the truth and to find whatever
20 evidence might become available, and consequently we
21 decided to wait until the conclusion of the trial of
22 Hobson in case something might arise at that trial
23 before we took the final decision.
24 Q. I follow. You took the view that something might come
25 out of the Hobson trial which may inform your
138
1 consideration of the neglect?
2 A. Yes.
3 Q. Was any consideration given, as far as you were aware,
4 to the question of whether Mr Atkinson could properly be
5 advanced as a witness of truth, given the tip-off
6 allegation hanging over him?
7 A. I certainly didn't give that any consideration because
8 I was not dealing with the murder file.
9 Q. Can we have a look at [18122], please? It is a note we
10 are told of 5th August 1997. R v Lunt, Hanvey, Hobson,
11 Bridgett, Forbes and Robinson. That's the murder.
12 A. Yes.
13 Q. "The Director has asked that this case should be drawn
14 to his attention before final directions are issued. In
15 considering this case and any associated complaint file,
16 the directing officer is referred to the case of
17 R v Dytham."
18 A. Yes.
19 Q. We are told that that note found its way on to the
20 murder file. Can you recall whether it was on the
21 neglect file too?
22 A. I don't recall ever having seen that note before.
23 Q. Thank you. That's all I seek to ask you. Thank you
24 very much.
25 A. Thank you very much.
139
1 MR UNDERWOOD: It may be we have some more questions from
2 others.
3 Questions from MR EMMERSON
4 MR EMMERSON: Did you consider the case of Dytham when you
5 were making your decisions?
6 A. I did, yes.
7 Q. Thank you. Finally, as regards the decisions
8 themselves, can I just get the structure of the
9 decision-making process clear --
10 A. Yes.
11 Q. -- with the neglect file? Am I right in thinking that
12 Mr Junkin requested the file be forwarded to him through
13 Alan White, who was then Senior Assistant Director? Is
14 that correct?
15 A. That's correct. In fact, in the first instance it went
16 through Raymond Kitson to Mr Junkin, who sent it back
17 and asked that it be referred through Alan White, who
18 was a Senior Assistant Director.
19 Q. So though you were effectively the case officer and
20 responsible for what was a very lengthy written
21 memorandum about the merits of prosecution in both the
22 neglect allegation and the allegation against Atkinson,
23 your memorandum went, first of all to Mr Kitson?
24 A. Yes.
25 Q. Then it went to Mr Junkin?
140
1 A. Yes.
2 Q. Then back from Mr Junkin to Mr White?
3 A. Yes.
4 Q. And then back to Mr Junkin as the final decision-maker?
5 A. Yes.
6 MR EMMERSON: Thank you.
7 MR UNDERWOOD: Thank you very much. You are free to go.
8 (The witness withdrew)
9 THE CHAIRMAN: You want us to break now, do you?
10 MR UNDERWOOD: Yes.
11 THE CHAIRMAN: How long is needed?
12 MR UNDERWOOD: I think fifteen minutes.
13 THE CHAIRMAN: Very well.
14 (3.05 pm)
15 (A short break)
16 (3.20 pm)
17 (Hearing in camera)
18 (3.30 pm)
19 MR UNDERWOOD: That concludes the evidence for today.
20 Tomorrow we have Mr McGinty first thing at 10 o'clock
21 I gather, and then Sir Alasdair Fraser. I am hoping it
22 will not be a very long day with only those two
23 witnesses.
24 THE CHAIRMAN: Right. Then a 9.30 am start? Sorry,
25 a 10.30 am start?
141
1 MR UNDERWOOD: I am told -- I think it is for the
2 convenience of Mr McGinty -- that 10 o'clock has been
3 slotted in. So I would urge for 10 o'clock.
4 THE CHAIRMAN: 10 o'clock.
5 (3.35 pm)
6 (The hearing adjourned until 10.00 am tomorrow morning)
7 --oo0oo--
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142
1 I N D E X
2
3
MR WILLIAM JUNKIN (sworn) ........................ 1
4 Questions from MR UNDERWOOD ............... 1
Questions from MR EMMERSON ................ 5
5
MR ROBERT IVOR MOSS MORRISON (sworn) ............. 12
6 Questions from MR UNDERWOOD ............... 12
Questions from MR McGRORY ................. 57
7 Questions from MR MALLON .................. 94
Questions from MR BERRY ................... 106
8 Questions from MR McCOMB .................. 114
Questions from MR EMMERSON ................ 114
9 Further questions from MR UNDERWOOD ....... 133
Further questions from MR McGRORY ......... 135
10
MR WILLIAM ALEXANDER RONALD McCAREY .............. 136
11 (sworn)
Questions from MR UNDERWOOD ............... 136
12 Questions from MR EMMERSON ................ 140
13
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143
- - - - - - - - - -
PUBLIC INQUIRY INTO THE DEATH OF
ROBERT HAMILL
- - - - - - - - - -
Held at:
Interpoint
20-24 York Street
Belfast
on Thursday, 17th September 2009
commencing at 10.00 am
Day 65
1 Thursday, 17th September 2009
2 (10.00 am)
3 MR UNDERWOOD: Morning, sir. I am sorry about the slight
4 delay. We had a slight technological hitch.
5 May I have Mr Junkin, please?
6 MR WILLIAM JUNKIN (sworn)
7 Questions from MR UNDERWOOD
8 MR UNDERWOOD: Good morning.
9 A. Good morning.
10 Q. My name is Underwood and I am Counsel to the Inquiry.
11 I have a very limited number of questions for you --
12 A. Okay.
13 Q. -- and then some others may have some follow-ups. Can
14 I ask you your full names first, please?
15 A. My full name is William Ronald Junkin.
16 Q. Can we just check that what we have as your statement
17 is, in fact, your statement. At page [81943] on the
18 screen there is a document that runs to nine pages. If
19 we just scroll through the nine pages briefly, perhaps
20 you could keep your eye on it?
21 A. Yes.
22 Q. Is that your statement?
23 A. Yes, I think so.
24 Q. Are the contents true?
25 A. Yes. May I just add something that I have learned in
1
1 the meantime to paragraph 17?
2 Q. Uh-huh. This is page [81948]?
3 A. I now know I was asked by the Director in July 1999 to
4 do other things in the case. The relevant document is
5 [18251].
6 Q. Thank you very much indeed.
7 A. I was not aware of that at the time of the interview.
8 Q. Understood. In fact, since you signed this statement
9 off, quite a lot of other information has come to light
10 about the way in which the files were dealt with, so
11 I don't need to trouble you about a lot of this.
12 What I want to ask you about is some overarching
13 things, if I may. We don't need to look at documents
14 for this.
15 A. Okay.
16 Q. We know that in early 1998 what we are calling a neglect
17 file came up to the DPP from the RUC concerning the
18 complaint made by Miss Hamill about four officers
19 perhaps not getting out of the Land Rover --
20 A. Yes.
21 Q. -- and, in addition, what we are calling a tip-off
22 allegation made against Reserve Constable Atkinson --
23 A. Yes.
24 Q. -- that he rang Mr Hanvey up. We know that so far as
25 the tip-off allegation was concerned, that was based on
2
1 hearsay: namely, a statement of Tracey Clarke about what
2 Hanvey had told her, that it had some support by way of
3 telephone record, but that itself had been explained
4 away by what we are calling an alibi.
5 A. Yes.
6 Q. Are you familiar with that?
7 A. Yes, in general terms, yes.
8 Q. Inevitably, it may be thought it was concluded that
9 there was not enough evidence to prosecute Mr Atkinson
10 on the basis of the combination of hearsay and a bit of
11 substantiation, particularly in the face of what
12 appeared to be an alibi?
13 A. Yes.
14 Q. You would agree with that conclusion, I take it.
15 A. Yes.
16 Q. What I want to ask about is, in general, and also by
17 reference to that, the way in which the DPP operated in,
18 say, 1999 in relation to files like that. Specifically
19 this: where you had allegations such as that, would any
20 consideration have been given to directing any further
21 investigations?
22 A. If it was apparent that further enquiries had to be
23 made, then yes.
24 Q. So it would need to be apparent on the face of the crime
25 file, would it?
3
1 A. Yes.
2 Q. So if, for example, there is a reference to -- I don't
3 know -- the need for forensic science and there is no
4 forensic science report, something like that would be
5 obvious?
6 A. Yes.
7 Q. What degree of autonomy, as it were, did the DPP have
8 about this, though? Was there any question that the DPP
9 could look at a file, think, "That's deeply suspicious.
10 Why don't we get the RUC to go back and check -- I don't
11 know -- for the existence of a grey jacket?" something
12 like that?
13 A. It is possible it is the kind of thing one would look
14 at, one would discuss. It would depend on the
15 circumstances of the individual case.
16 Q. But not out of the question then, that the --
17 A. If there was an obvious enquiry that one had to make,
18 no, it would scarcely be out of the question. If there
19 was a witness whose name appeared, for example, and had
20 not been interviewed, one would say, "What about X?
21 Have you taken a statement from X?" or some such.
22 Q. But it really had to be fairly apparent on the face of
23 the document, did it, that something had not been done
24 that ought to be done?
25 A. Well, if it was not apparent, one would find it very
4
1 difficult to understand how you can investigate it.
2 Q. You didn't, for example, consider whether further -- for
3 example, if an alibi is put forward and the police have
4 checked it out, it wouldn't occur to you to ask the
5 police to go and see whether they could do further
6 enquiries on that alibi?
7 A. Only if the enquiry is necessary or obvious. If
8 an investigation has taken place, there are no obvious
9 lines of enquiries, one would leave it at that.
10 MR UNDERWOOD: That's very kind. That's all I wanted to ask
11 you about. Thank you. There may be some more
12 questions.
13 MR ADAIR: No questions.
14 MR McGRORY: No questions.
15 Questions from MR EMMERSON
16 MR EMMERSON: Mr Junkin, you mentioned your involvement in
17 July 1999 and you gave reference to a document
18 page [18251]. Can I just, first of all, ask that that
19 be brought up and then just ask you some further
20 questions about that part of your role?
21 We can take this reasonably shortly. In -- and
22 I think it was 20th July that this -- maybe we can see
23 on the following page. Could we just look at the second
24 page [18252]? Yes, the date appears there on the second
25 page.
5
1 A. Yes.
2 Q. Did the Director write to you following a communication
3 that he had received from xxxxxxxxx's solicitors
4 in which they had asked for a review of the no
5 prosecution decisions in relation to Lunt and Bridgett
6 and, more generally, explanations for the no prosecution
7 decisions in respect of the other suspects?
8 A. Yes. It is apparent from the document.
9 Q. You were asked, were you, to supervise a review of those
10 decisions?
11 A. I was, yes.
12 Q. Was that because you hadn't been in any way involved in
13 the decisions yourself?
14 A. Yes.
15 Q. Did you then delegate the task of conducting the review
16 itself to xxxxxxxxxxx --
17 A. I did.
18 Q. -- who was then Senior Assistant Director? Is that
19 correct?
20 A. I did.
21 Q. Again, was Mr xxxxxxx appointed because he was independent
22 of the decision-making itself?
23 A. Yes.
24 Q. Can we look, please, at [18321]? There are other
25 documents on file which show the material that Mr xxxxxxx
6
1 had available to him, but if we could just scroll
2 through this document, which is about four pages long,
3 on 13th August, did Mr xxxxx report to you about the
4 conclusions that he had reached on reviewing those
5 prosecution decisions?
6 A. He did, yes. That's the document I see before me.
7 Q. Thank you very much. Can we go back to [18321], please?
8 Can I summarise the conclusions, and obviously, if
9 anyone wants to look at them in more detail, then that
10 can be done.
11 First of all, did Mr xxxxx conclude in his report to
12 you that the decision not to use the statement of
13 Tracey Clarke under Article 3 was correct?
14 A. He did, yes.
15 Q. Did he conclude that the direction to abandon the
16 prosecution of Wayne Lunt following the change in stance
17 from Mr Prunty was correct?
18 A. Can we go to the next page of the document?
19 Q. Yes, please.
20 A. Yes, he did.
21 Q. Thank you. Did he deal also with public order offences
22 in relation to Mr Lunt? We can perhaps go to the
23 following page in relation to that [18323], at
24 paragraph 15 --
25 A. Yes.
7
1 Q. -- and, again, agree with that conclusion?
2 A. Yes.
3 Q. In relation -- perhaps if we go back to that page in
4 full -- to Mr Bridgett, can I summarise it in this form:
5 was he in clear agreement with the decision that there
6 was insufficient evidence to prosecute for murder?
7 A. Yes.
8 Q. But if we just turn over the page, please, and pick it
9 up at paragraph 26, did he take the view that in
10 relation to affray the evidence was more evenly
11 balanced?
12 A. Yes. So he has written.
13 Q. We can see there he said:
14 "However, it was disjointed. Overall I agree with
15 the conclusion that there was no reasonable prospect of
16 a conviction for affray, although I would acknowledge
17 that the decision was a fine one."
18 A. Yes.
19 Q. Thank you very much. Now, in relation to that, you were
20 satisfied that that was an independent judgment
21 reviewing the merits of each of these decisions?
22 A. I was, yes.
23 Q. On 24th August -- can we look at [17606], please -- did
24 you then report to the Director?
25 Do you have that document in front of you?
8
1 A. Yes, but it is redacted. I am not sure to whom it is
2 addressed.
3 Q. I think you can take it from me that the unredacted
4 version of this document indicates that you are
5 reporting there -- that's your signature at the bottom.
6 A. It is indeed, yes.
7 Q. -- to the Director on the outcome of the review.
8 A. Yes.
9 Q. Because if you note, you begin by referring to "your
10 note dated 13th August". Do you see that?
11 A. Yes, I do.
12 Q. That, of course, is the document we have looked at.
13 I do apologise --
14 A. I think that's --
15 Q. I am so sorry. I have misled you --
16 A. I think that's Mr xxxxxx's document. I think you are
17 mistaken.
18 Q. You are absolutely right. My note says "Director", but,
19 in fact -- I have just been handed the unredacted
20 document. You are absolutely right. This is
21 a memorandum from you to Mr xxxxx in response to --
22 A. That's why I ...
23 Q. You are absolutely right. I do apologise.
24 A. Thank you.
25 Q. But in relation to that, you say in the second
9
1 paragraph:
2 "I have considered all the internal papers,
3 including the advices of counsel and the attendance
4 notes of consultations ... the evidence on file", and so
5 forth.
6 Can we take it then that in digesting Mr xxxxxx's
7 conclusions, you tested them against the base material
8 itself?
9 A. I would have done. I have no recollection of the actual
10 events, but if that's what I wrote, that's what I did.
11 Q. So all of the source material that he considered would
12 follow, would it?
13 A. Yes.
14 Q. And also, of course, the judgment in the Hobson trial?
15 A. Yes.
16 Q. You say:
17 "I am advised that nothing of evidential value
18 arises from the interviews after caution of [the named
19 suspects], save for the denial by Bridgett as being
20 sighted by police as one of the crowd."
21 Now, does it follow from that that you had not
22 considered the substance of the interviews themselves?
23 A. I would take it so, yes.
24 Q. So apart from that, as far as you are aware, you had
25 read all of the papers?
10
1 A. Yes, that's what I would take from that.
2 Q. You say:
3 "I have weighed the effect of that denial in the
4 context of the other evidence ... as to the role played
5 by Bridgett.
6 "I have concluded that the decisions as to
7 prosecution or no prosecution which had been reached
8 upon the evidence available and the directions ..."
9 Your conclusion was they were correct. Is that
10 right?
11 A. Yes.
12 Q. So in relation to that, would you have been, so to
13 speak, the decision-maker in the review process, if
14 that's the right way of putting it?
15 A. I would reckon so, yes.
16 MR EMMERSON: Thank you very much.
17 MR UNDERWOOD: Nothing arising. Thank you.
18 THE CHAIRMAN: Thank you. You are free now to go, sir.
19 A. Thank you very much.
20 MR UNDERWOOD: Thank you very much.
21 (The witness withdrew)
22 MR UNDERWOOD: We have a slight change of order. We go to
23 Mr Morrison, I understand.
24 THE CHAIRMAN: Yes.
25
11
1 MR ROBERT IVOR MOSS MORRISON (sworn)
2 Questions from MR UNDERWOOD
3 MR UNDERWOOD: Good morning, Mr Morrison.
4 A. Morning.
5 Q. My name is Underwood.
6 A. Yes.
7 Q. I am Counsel to the Inquiry. I have a few questions for
8 you. It may well be there will be some supplemental
9 questions after.
10 A. Sure.
11 Q. May I ask you your full names, please?
12 A. Robert Ivor Moss Morrison.
13 Q. If we look at a document that starts at page [82013] and
14 runs to 12 pages, I just want you to keep your eyes on
15 the screen until we get to the twelfth page to see if it
16 is your statement.
17 Is that your witness statement?
18 A. Yes, it is.
19 Q. Is it true?
20 A. It is.
21 Q. Thank you. I want to ask you something, first of all,
22 about the quality of the evidence to be given by
23 Andrea McKee in the proposed prosecution of Mr Atkinson
24 and others. I want you to look, if I may, at the final
25 witness statement which she signed on that on
12
1 30th October 2002. It starts at page [20297]. Are you
2 familiar with that?
3 A. I am, yes.
4 Q. If we look at page [20302], and pick it up halfway down
5 the page, here she is referring to the events in 1997.
6 About ten lines down towards the right-hand side there
7 is a sentence that starts later in the year ..."
8 Are you with me?
9 A. Yes.
10 Q. "Later in the year, Michael", that's her husband,
11 Michael McKee.
12 A. Yes.
13 Q. "... told me that Robert Atkinson had spoken to him
14 about the incident. This had happened one night when
15 they were both out together. On his return home,
16 Michael told me that Robert had asked him to cover the
17 phone call to the Hanveys. Michael told me that Robert
18 had made another phone call but that he could cover that
19 phone call himself. Michael told me that he had asked
20 Atkinson about why he had made the phone call. He said
21 that Atkinson told him that he had rang him to try and
22 help him and that he had realised now that he should not
23 have done it. Michael told me that Atkinson had told
24 him that he had made the phone call to tell him to get
25 rid of his clothes. This was the first time that I knew
13
1 that Atkinson had admitted" overleaf, [20303], "making
2 the call to Hanvey."
3 I want to miss the first quarter of this and pick it
4 up from a line, again about ten lines down on the
5 right-hand side:
6 "On one occasion ..."
7 Are you there? The second line in this highlighted
8 section on the right-hand side.
9 A. Yes.
10 Q. "On one occasion after that, but before Michael and
11 myself made statements to the police, Michael and myself
12 were over at Robert Atkinson's house. We went there to
13 sort out the cover story for the phone call
14 Robert Atkinson made to Allister Hanvey the morning
15 after the fighting in Portadown. Robert and
16 Eleanor Atkinson were both present.
17 "Robert Atkinson led the discussion and he said that
18 the story would be that Michael and I had been staying
19 at their house overnight and he suggested that the call
20 could be covered by Michael saying that he was ringing
21 because of his concern for Tracey Clarke. It was Robert
22 who thought out this story about Tracey Clarke.
23 Robert Atkinson said to me that I would have to confirm
24 that I had heard Michael on the telephone.
25 "Robert Atkinson mentioned about a second phone call
14
1 that he had made but that he had that covered. I do not
2 know anything about the second phone call, about his
3 reason for making it or his story to cover it. We were
4 only there that evening to get the story right and we
5 went home after that. At some point after that I was
6 aware that Michael and Eleanor went to Portadown Police
7 Station to make statements. I was aware that
8 Robert Atkinson was being interviewed again but I was
9 not asked by Robert to go to the police station."
10 So that was the height, as I understand it, of the
11 evidence from Andrea McKee about, firstly, what she knew
12 about the content of the telephone call, and, secondly,
13 about the way in which the agreement to cover it up was
14 formulated. Is that fair?
15 A. I think that is fair.
16 Q. So there is no admission by Atkinson to her of the
17 content of the telephone call. Is that right? We can
18 go back, if you like.
19 A. I accept that from you. That may be correct.
20 Q. I am interested in this question: was the reasoning in
21 prosecuting the Atkinsons and Hanveys for the conspiracy
22 to pervert the course of justice or doing an act that
23 tended to do that, that you didn't have to prove the
24 content of the telephone call?
25 A. I would say that's right, that the content of the call
15
1 didn't necessarily have to be proved. It was necessary
2 to prove that there was a conspiracy, there was
3 an agreement to concoct a story about a telephone call,
4 about this telephone call, which was clearly to do with
5 the Robert Hanvey murder -- Robert Hamill murder, and
6 I don't think that the content of the phone call was
7 necessarily relevant at the time. I am not quite sure.
8 Q. Okay, because, obviously, on the face of that, the only
9 way you could have established that would have been to
10 adduce evidence from Michael McKee. Would that be fair?
11 A. Certainly Michael appears -- from what Andrea said in
12 the first passage that you read out, Michael appears to
13 have known much more about this than Andrea did.
14 Q. He was refusing to assist, wasn't he?
15 A. He was.
16 Q. Thank you. I want to move on now to the events that led
17 to the unravelling of the prosecution. Can we look at
18 your note of the adjournment on 22nd December of 2003?
19 It is at page [34061]. First of all, the question is:
20 is this your note?
21 A. Yes, it is.
22 Q. I have been reading what I think it says to a number of
23 witnesses. Would you mind telling us what it says?
24 A. "Principal prosecution witness Andrea McKee unable to
25 travel from Wrexham, Wales because her 2-year-old son
16
1 has mumps and swollen testes.
2 "Adjourned to 2nd January 2004 for production",
3 I think that probably is, I am not quite sure
4 Q. Either "production" or "presentation".
5 A. "... presentation of certificate.
6 "To be relisted.
7 "Crown applied for 16th February.
8 "Date suitable to all is 8th March.
9 "Fixed for 8th March 2004."
10 Q. Thank you. Perhaps there is something you can help us
11 with on this. We know from the police constable who
12 spoke to Andrea McKee --
13 A. Yes.
14 Q. -- that Andrea McKee appears to have said that her child
15 had mumps as opposed to suspected mumps.
16 A. Yes.
17 Q. Christine Smith, when she gave evidence to us, said her
18 recollection was that she was told, and therefore told
19 the court, that it was suspected mumps.
20 Can you recall whether the court was told that it
21 was mumps or suspected mumps?
22 A. I believe it was told mumps.
23 Q. Right.
24 A. Because that is the information that I got from the
25 police. That's the information that the detective --
17
1 woman detective got from Andrea.
2 Q. Can you give us an understanding of what was going on
3 with these two dates, 8th March and 2nd January? What
4 was expected to happen on 2nd January?
5 A. The defence were sceptical, shall we say, about Andrea's
6 reasons for not travelling. I mean, they made that
7 scepticism quite clear, but they were reasonably -- they
8 were sympathetic, if, indeed, her child had been so ill
9 that she was unable to travel, but they wanted evidence
10 of that. So the case was adjourned, although I would
11 describe it as a conditional adjournment.
12 It was adjourned, first of all, to 2nd January in
13 order that we should be able to produce evidence, as we
14 expected to be able to do, in line with the information
15 that we had received from her and that we had submitted
16 to the court.
17 Q. Was any thought given to what would happen if you could
18 not do that?
19 A. Well, at that time, we expected to be able to do it, so
20 I don't think that a lot of thought would have been
21 given at that time. It certainly would have caused me
22 problems which we would have had to consider and deal
23 with whenever that happened.
24 Q. I am just interested in your word "conditional".
25 A. Yes.
18
1 Q. What would have happened -- think yourself back into
2 December 2003 -- in your view, on 2nd January, if it
3 turned out that you couldn't come up with that evidence?
4 A. Well, the reality of the situation is that we couldn't
5 come up with evidence which was consistent with what she
6 had said.
7 Q. No. I am asking you to think yourself into
8 22nd December and why you are saying it was conditional.
9 A. It was conditional because we didn't have that evidence
10 at court and the defence wanted that evidence. We had
11 to see what would transpire. The magistrate obviously
12 was concerned about the progress of the case, wanted to
13 progress the case, but again was sympathetic to her
14 situation.
15 If we had, on the 2nd, said, "Sorry, we have no
16 evidence at all", then I think it is very unlikely that
17 the magistrate would have stopped the case at that
18 stage, but he would have said, "This has to go on on
19 8th March. This matter has to go on. This is a serious
20 matter that we have been given specific information
21 about her reasons for not travelling, and you have been
22 unable to produce any evidence about that".
23 Q. Thank you. Again, I want to test the feel at the time.
24 You have written in here:
25 "Adjourned to 2nd January 2004 for production [or
19
1 presentation] of certificate."
2 A. Yes.
3 Q. In fact, Miss Smith told us that her own note had used
4 the word "certificate".
5 A. I think "certificate" was a shorthand way of describing
6 what we would expect to have been satisfactory written
7 evidence.
8 Q. Right. Then we know that what you were presented with
9 was a statement by a GP, which we can see at
10 page [34042]. Let's have a look at that.
11 A. Yes.
12 Q. If we can highlight the manuscript text. It is the GP
13 who sets out his place of work and his qualification and
14 then on the third line says:
15 "I confirm that on 1st December 2003 [the child]",
16 take it from me, "was brought to see me when I diagnosed
17 an ear infection and possibility of mumps as well. He
18 was prescribed appropriate treatment. He further
19 consulted my partner on 22nd December 2003 when an ear
20 infection both ears was again diagnosed."
21 A. Yes.
22 Q. Now, first of all, the difficulty with that is only
23 shows one visit to the GP before the day Mrs McKee was
24 due to turn up. Is that fair?
25 A. It's fair. It's one visit and it's three weeks before
20
1 the court date.
2 Q. Yes. So that's a problem that you would have recognised
3 on seeing that, I take it?
4 A. That's one problem, yes.
5 Q. The other problem is that it doesn't say "mumps". It
6 says "possibility of mumps". Is that right?
7 A. That's right.
8 Q. But -- I am so sorry. Do go on.
9 A. He also doesn't mention swollen testicles. Of course,
10 since this was three weeks before, I wouldn't have
11 expected it to mention that the child had a high
12 temperature or danger of fitting, that sort of thing,
13 which had certainly been mentioned to the woman
14 detective.
15 Q. But what it does show is that there was an ear infection
16 on 1st December and again on 22nd December.
17 A. It does.
18 Q. Would you have regarded it as a reasonable inference
19 from that that the child might have a high temperature?
20 A. I don't know.
21 Q. Would you have regarded it as a reasonable inference
22 from a GP diagnosing the possibility of mumps that the
23 child might have had swollen testicles?
24 A. No.
25 Q. Why not?
21
1 A. Because first of all, I think it is something he would
2 have noticed. It is a condition which is very unusual
3 in children.
4 Q. What is, swollen testes or mumps?
5 A. Swollen testes connected with mumps is very unusual in
6 children under 10.
7 Q. So if you have a diagnosis of the possibility of mumps,
8 does that not then by inference suggest that the GP saw
9 swollen testes?
10 A. No, definitely not. The opposite. Sorry, not the
11 opposite. If he had seen swollen testes, I think he
12 would have been concerned, because it is a very unusual
13 condition in children of that page.
14 Q. Because it suggests mumps?
15 A. No.
16 Q. What does it suggest -- what's your qualification for
17 this?
18 A. I have no qualifications whatsoever. Like yourself,
19 I have done some research on the matter. I have no
20 other way of presenting this information, but you have
21 asked me, "Does it suggest mumps?" I am saying, as far
22 as I am aware, it doesn't suggest mumps.
23 Q. When you say you have researched it, have you researched
24 it since the time we are talking about?
25 A. Yes.
22
1 Q. So, at the time, what did it suggest to you?
2 A. At the time, it suggested some level of illness and that
3 her child was unwell, but at the same time, I had to
4 take into account the fact that the first visit to the
5 doctor was on 1st December. Since then, the woman
6 constable had spoken to Andrea, who had --
7 Q. I am going to come to that. At the moment I am just
8 concerned with what you were told as at the date of this
9 certificate -- rather, this statement being presented to
10 you. Right?
11 A. Yes.
12 Q. Can we move on to see what happened next? Page [58455],
13 to give context to what you were just about to tell me.
14 If we look down on the entry there for 30th December,
15 this is, as you say, the policewoman:
16 "Police contacted Andrea in relation to the medical
17 treatment received by her son. She stated that", take
18 it from me that's the GP, "had called at her home on the
19 evening of 11th December 2003 and had prescribed
20 antibiotics and nose drops. She also stated that on
21 Friday, 19th December 2003 she had telephoned the
22 Pendine Park out-of-hours clinic at night because of the
23 child's high temperature. She states that she was told
24 to him give Calpol and to phone back in half an hour.
25 She did this, and, as the child's temperature had not
23
1 come down, she and her partner had taken the child to
2 Pendine Park clinic where they saw a lady doctor."
3 That was communicated to you at some point around
4 there, we take it. Is that fair?
5 A. That -- I am not certain whether it was communicated to
6 me before 2nd January that the way in which the
7 Pendine Park issue had arisen -- I don't know. I'm not
8 sure whether you said it was the policewoman who spoke
9 to Andrea on 30th December. I am not sure now that is
10 actually the case.
11 Q. All right.
12 A. I am not sure who spoke to her on 30th December.
13 Q. Okay. What we now know at least, and I think you now
14 know, is that following on from that GP's statement,
15 which only recorded a visit on 1st December, prior to
16 the 22nd, she was seen again and what she said was,
17 "Well, look, the GP came to see me on 11th December,
18 and, what's more, I was concerned about a high
19 temperature over the weekend and about Calpol and went
20 to Pendine". Yes?
21 A. That's apparently what she said, yes.
22 Q. We then know what you get is page [34055]. This,
23 I think, was copied to you, wasn't it?
24 A. I believe it was, yes.
25 Q. It's a fax from CID at Wrexham:
24
1 "DI. Please find statement from", again it is the
2 GP. "Sorry for the delay - but he's not as keen on
3 keeping records as I thought.
4 "Re: the statement from Pendine GP office - the
5 afternoon shift will visit when they open at 6pm
6 tonight - and fax any relevant statement to you."
7 A. Yes.
8 Q. The first thing there is, as at the end of December,
9 they go back to the GP on this question of the home
10 visit on 11th December and find the GP's records are not
11 as they should be, to put it mildly.
12 A. Yes.
13 Q. Then that attaches what we see at page [59853],
14 a further statement of 30th December. Second line:
15 "In furtherance to my previous statement regarding
16 [the child], I can now also confirm that the named
17 patient was visited at his home by myself following
18 a request from his mother to the surgery for a doctor to
19 attend. The child was suffering from ear infection and
20 possibility of mumps as well. I recall prescribing the
21 patient antibiotics for his illness. This visit took
22 place on 11th December 2003."
23 You did get that, I take it, did you?
24 A. Yes.
25 Q. So the position was that the GP's records were
25
1 inadequate and that, when taxed on that, Mrs McKee came
2 up with two things: firstly, there was a home visit;
3 and, secondly, Pendine. What she said about the home
4 visit was true?
5 A. Apparently so.
6 Q. So what you now have, as of the end of the year, is that
7 what she said about GP's visits was at least accurate in
8 terms of there being consultations. Is that fair?
9 A. Apparently so.
10 Q. And that you have a run, if you like, of diagnoses from
11 1st December through 22nd December: ear infection and,
12 certainly on the first two, the possibility of mumps.
13 Correct?
14 A. Yes.
15 Q. And antibiotics?
16 A. Yes.
17 Q. Would that have told you at the time this was a child
18 with a high temperature?
19 A. Not necessarily. As you say, I don't have any medical
20 experience.
21 THE CHAIRMAN: I imagine it is a simple thing for a mother
22 to take a child's temperature.
23 A. I imagine it is.
24 MR UNDERWOOD: Would it have conveyed to you the concept of
25 a child of two with an ear infection over the course of
26
1 a month nearly, which required her to have three GP
2 visits, that this was a child who was worrying the
3 mother?
4 A. Yes. Yes. But as opposed to that, why did she not tell
5 the police officer on 19th December that she was worried
6 about the child? Indeed, whenever she spoke to the
7 police officer on the 21st, why did she not say, "We had
8 a terrible time over the weekend. We had to bring the
9 child to a clinic on the Friday night, take her in the
10 car all the way over across Wrexham to have him looked
11 at".
12 Q. I want to be very fair to you, Mr Morrison.
13 I appreciate you are being defensive in this way by
14 being critical of Mrs McKee at this remove, because you
15 know --
16 A. Sorry, I am not being critical of her -- I mean, that
17 she didn't look after her child. I think she did. I am
18 being critical about what she has said in speaking to
19 the police and to ourselves about this matter.
20 Q. No, I follow that. That's why I am saying I want to be
21 fair to you about you being so defensive about this.
22 Is that the attitude you had in late 2003/early 2004
23 towards her?
24 A. No. My attitude, certainly on 22nd December, was that
25 I was concerned and I wanted to keep the matter moving
27
1 as well as possible, but my expectation was that we
2 would receive satisfactory medical evidence about the
3 child and consistent medical evidence, evidence that was
4 consistent with what she had told us.
5 Q. From what I am understanding from you, you didn't at the
6 time know whether the diagnosis of the possibility of
7 mumps was or was not consistent with swollen testes. Is
8 that right?
9 A. I would have expected that that would be mentioned.
10 Q. But we know this is a doctor who doesn't even bother
11 keeping a record of a visit. What did you think about
12 that?
13 A. That's unfortunate.
14 Q. Well, it is not unfortunate, is it? It goes to the
15 quality of the GP's record-keeping, does it not?
16 A. It does.
17 Q. Yes. So why do you expect a GP who doesn't even bother
18 to keep any record of a visit to record what is, in
19 fact, something associated with the possibility of
20 mumps?
21 A. As I've said, I don't want to give medical evidence, but
22 I think if you research the matter, you'll find that
23 this condition is extremely rare in children of that
24 age.
25 Q. Okay.
28
1 A. I think, frankly, if you ask my opinion now, I believe
2 that Andrea made it up.
3 Q. I am not asking your opinion now. I am asking what you
4 thought at the time. We will come to your opinion now.
5 I know you are very anxious to tell us why Mrs McKee
6 should never have been advanced as a witness, but can we
7 please --
8 A. That's not true. I was perfectly happy to advance her
9 as a witness at the time.
10 Q. Why have you been researching mumps?
11 A. I think that's a silly question.
12 Q. Do you?
13 A. It certainly is, because I have been trying to inform
14 myself of the circumstances, any of the circumstances
15 surrounding this matter.
16 Q. Not to defend yourself against the decision you made?
17 A. So that I was well-informed for this hearing, not to
18 defend myself. Clearly I want to support that decision,
19 because I believe that the decision was right.
20 Q. Okay. So as of 2nd January when the certificates were
21 due to be, or whatever it was supposed to be were due to
22 be given to the defence, why did the matter not go back
23 to court with the witness statements?
24 A. I think I have explained that in my statement.
25 Q. Tell us.
29
1 A. Right. First of all, the statements that I had, and
2 which I may say some of which I had only got that -- the
3 morning of the court, because, remember, this was the
4 first day back after the New Year break. There had been
5 the Christmas break. I only got the -- as far as I am
6 aware -- that may not be right. I may have got the
7 second statement from Dr xxxxx before that, but
8 certainly I didn't get the information about Pendine
9 until the morning of the court.
10 Firstly, the evidence that I had was not, as far as
11 I could see, fully consistent with what we had told the
12 court.
13 Secondly, the issue of Pendine had been raised.
14 I had evidence -- I had been told, rather, that Andrea
15 had been there on 19th December. That was potentially
16 very, very important. It may well have dispelled any
17 doubts that there were about the consistency of the
18 doctor's evidence. So I would have been very keen to
19 actually bring evidence from Pendine.
20 On the other hand, I knew that there was a doubt
21 about Pendine, because I had a statement from, I think
22 it was -- was it a Dr xxxxx -- Dr xxxxx I had
23 a statement from him saying she had basically never been
24 there. This was a matter which needed further
25 investigation. It was my hope, and perhaps expectation,
30
1 that the police would, in fact, find that she had been
2 there, that this would provide strong and consistent
3 evidence with what we had told the court on
4 22nd December.
5 I could not -- I couldn't try to rely on the
6 statement of Dr xzxxxxx without mentioning Pendine,
7 because that was a matter which really had to be
8 disclosed. I think it would have been unfair to the
9 defence not to disclose that there were other enquiries
10 being made about it. I couldn't rely on that.
11 I also knew by that time that Andrea had received
12 a threatening letter, and this was a threat allegedly
13 coming from a terrorist organisation. I could not let
14 the case appear to be proceeding with her appearing to
15 be willing and able to give evidence. To do that would
16 have signalled perhaps to this organisation that she was
17 still a willing witness and could have put her life in
18 danger.
19 So there was no -- the information that I had in
20 front of me on that morning with that information, it
21 would have been -- well, one way would have been
22 reckless, but it just wasn't a professional decision
23 I could make to try to proceed at that stage.
24 Q. Can I just ask you about the threat?
25 A. Yes.
31
1 Q. At that stage, of course, nobody had investigated it.
2 A. No. Well, certainly the police had been out to see her
3 about it. The Wrexham police had got the letter --
4 no -- yes, they had got the letter. Of course they had.
5 They had been speaking to her. Obviously, as soon as
6 the letter arrived, you will see from the journal of the
7 Detective Chief Inspector that they were immediately
8 taking all proper steps to deal with whatever level of
9 threat there might be.
10 Q. Okay, but I just want to ask you about that, though.
11 Let's say you had had adequate medical evidence in your
12 view by 2nd January. Are you saying that the existence
13 of that threat would have concerned you about signalling
14 to the court and everybody else that she was ready to go
15 ahead as a witness?
16 A. It may have done. I mean, at the time I had to take
17 a number of factors together and what I have already
18 told you is the situation. I don't think there is any
19 real point now in dividing up the factors and saying,
20 "I would have done this", or, "I would have done that".
21 I had a number of factors to deal with and I dealt with
22 them as best I could at that time.
23 Q. Okay. If we go back to page [58455], it is that passage
24 of 30th December 2003. As I understand it, this was the
25 height of what Andrea McKee was saying about Pendine
32
1 before anybody went to visit her on 9th January 2004.
2 Is that fair?
3 I mean, I am not aware of any document that says she
4 was saying more about Pendine than was contained in this
5 passage before you had a consultation -- or conference,
6 rather -- with her on 9th January?
7 A. Well, I accept that.
8 Q. If I am wrong, I will be corrected on it, no doubt.
9 Let's just go back to that first passage on the
10 page here. The third line:
11 "She also stated that on Friday, 19th December 2003
12 she had telephoned the Pendine Park out-of-hours clinic
13 at night because of the child's high temperature. She
14 states that she was told to give him Calpol and to phone
15 back in half an hour. She did this, and, as the child's
16 temperature had not come down, she and her partner had
17 taken the child to Pendine Park clinic where they saw
18 a lady doctor."
19 There is nothing there, is there, which would have
20 suggested to you at the turn of the year, 2003/2004,
21 that further investigations into Pendine would have
22 assisted on the question of mumps or swollen testes?
23 A. It would have assisted on the overall question of what
24 medical evidence there was about the child, about the
25 truth or otherwise of her assertion that she had been to
33
1 Pendine Park. It was a matter of which --
2 Q. Obviously it goes to the truth of Pendine Park. I am
3 asking you whether it went to the question of swollen
4 testes and mumps.
5 A. It could have done. That depended on the evidence that
6 would be gathered from Pendine.
7 Q. Did you give any consideration to asking for a medical
8 report from the GP?
9 A. I don't believe -- well, the answer to that is no,
10 I didn't, because we had statements from him. He had
11 been visited on more than one occasion by, I believed,
12 competent detectives, and statements taken from him.
13 The detectives had been back to him or a detective had
14 been back to him at least twice -- at least for a second
15 time to try to confirm what Andrea had said.
16 I would have been very surprised if there was any
17 other information that the doctor was able to supply.
18 Q. Why is that? How could you have been surprised if a GP
19 could not have given more information about a visit?
20 A. He had been asked by the police to make a statement. He
21 had made a statement. The police were well aware,
22 I believe, of the situation, the concern about this
23 case, the importance of this case, the importance of her
24 evidence. I think that they would have done their best
25 to get the appropriate evidence, the evidence which the
34
1 doctor could give, to get that from him.
2 Q. Both you and your counsel recorded that all that was
3 required was a certificate.
4 A. I realise that we -- I see that that's what we said.
5 I am not quite sure on reflection what would have been
6 meant by a "certificate". I know that people who are
7 off sick go to the doctor's and get a certificate which
8 says "Yes, this person was sick and was not fit to go to
9 work". I am not quite sure, in this case, what
10 a "certificate" would have meant in strict legal terms.
11 I think we used a shorthand to put "certificate".
12 I am quite certain that the defence would have had a lot
13 to say about the statements had we simply handed them in
14 and said, "There you are. That's the evidence".
15 Q. But what you told me earlier on was, if you had come up
16 with no medical evidence whatsoever on 2nd January, the
17 worst that would have happened is that the magistrate
18 would have said, "No further delays. It has to go ahead
19 on 8th March". So why was this such a problem?
20 A. The problem -- I am sorry. The problem was that there
21 was an amount of conflicting information. There was
22 also a matter of this lady's security and there was
23 absolutely no way that it would have been responsible
24 for me to try to proceed with the information that we
25 had at that time.
35
1 I did what I could, what it was my duty to do to
2 keep the case on the rails without major problems being
3 raised in court on that day.
4 Q. Until signing your statement yesterday, had you
5 mentioned to anybody that one of the reasons why you had
6 put the matter over on 2nd January was your concern
7 about this lady's security?
8 A. It would have been a matter that I would have been
9 speaking to the police about that morning and it
10 certainly would have been in my mind.
11 Q. But you didn't mention it, say, in the Inquiry
12 interview?
13 A. Probably not. There is a lot of things I may not have
14 mentioned. That was a matter where I had relatively few
15 materials in front of me. I had not had the time to
16 prepare that I had for this evidence today.
17 Q. Okay, but you fairly told us you have been researching
18 mumps and so on so that you can come and stand by your
19 decision.
20 Are you sure that you are reconstructing your memory
21 properly?
22 A. Mr Underwood, did you want me to come here with no
23 preparation at all? Is that the way you expect
24 witnesses to give the best evidence that they can to
25 this Inquiry?
36
1 Q. Would you like to answer my question now?
2 A. I can't remember your question.
3 Q. Fair enough. We will move on then if you can't remember
4 the question.
5 THE CHAIRMAN: Just before you do, you comment on the fact
6 that in the report from the doctor about the domiciliary
7 visit on 11th December he mentioned nothing about
8 swollen testes. You regarded that as casting doubt upon
9 Andrea McKee's honesty in her complaint to the police.
10 I think that's a fair summary.
11 A. I don't -- no, I am not quite sure if that's what
12 I said. I don't know, but I wouldn't have -- I was
13 focusing on the weekend just before she was supposed to
14 give evidence. I mean, that was what I was focusing on.
15 She was saying at that time the child had mumps, had
16 swollen testes, high temperature and a danger of
17 fitting.
18 Now, I accept that the fact there was a domiciliary
19 visit on 11th January indicates that this child over
20 a period had some health problems. That also indicates
21 to me -- well, sorry. I should say I am not
22 particularly or was not particularly concerned what the
23 details were on 11th January, because that was some
24 11 days before this event.
25 THE CHAIRMAN: Yes. So you were not attaching any
37
1 adverse -- any significant adverse to Andrea McKee that
2 the doctor in respect of the domiciliary visit had not
3 mentioned swollen testes. Is that ...?
4 A. I think that's right. The fact that it was never
5 mentioned was a concern to me, the fact that it was
6 never mentioned in any of the reports, including the
7 report in relation to the visit on 22nd January, that
8 was of concern to me.
9 THE CHAIRMAN: I am really concentrating on 11th December.
10 A. Yes.
11 THE CHAIRMAN: Was the failure to mention, or the lack of
12 any mention, of swollen testes of any concern to you?
13 A. No. I think the answer is that it wasn't.
14 THE CHAIRMAN: Thank you.
15 MR UNDERWOOD: Can we go to page [33991]? It is
16 Christine Smith's note of the conference on
17 9th January 2004. I want to pick up the text down to
18 the point where it says, "Wednesday or Thursday ..."
19 We see the note:
20 "Andrea asked by Christine Smith to relate history
21 of son's illness:
22 "Stated:
23 "He started being unwell from start of December.
24 I think it was all coming from MMR injection which he
25 had a few months back - his neck swoll up. Doctor said
38
1 it was a good thing, showed vaccination working and his
2 body was fighting infection. Swelling went away then
3 neck started swelling again at the start of December.
4 Child had not been well for a good couple of months.
5 "He was off nursery.
6 "I was off college as I had tonsillitis. I think it
7 was second week in December - I saw [blank]. I was off
8 college for two weeks, saw doctor in early December. He
9 said child had the mumps. At that time Amoxicillin was
10 prescribed, five-day course. Child spat most of it out.
11 Antibiotic did not help. Went back to doctor again -
12 second visit - at surgery, different antibiotic given.
13 Then [blank] paid house visit. I was still not well.
14 He prescribed nose drops and third antibiotic. Doctor
15 was worried about swelling of his testicles - orchitis,
16 were swollen before, said it went along with mumps, but
17 was not too dangerous because he had had MMR. Visit was
18 some time after second week in December. Doctor said
19 I had to be more forceful in giving medicine. Child had
20 lost weight and was to be given sugar drinks with
21 calories in them."
22 Now, is that an accurate note in your recollection
23 of what was said?
24 A. As far as I remember, it is, yes.
25 Q. If that was true, in your view, in 2004, would that have
39
1 been sufficient to justify the adjournment?
2 A. If that were all true, it may have been. I think that
3 you have to take in all the circumstances, and I think
4 one of the circumstances is that, on 19th December,
5 Andrea had no concerns apparently about attending the
6 court on the 22nd.
7 So all this history -- I am not saying this history
8 is not important. It does show a level of illness that
9 the child had during December, but it also shows that,
10 on the 19th, the child was not -- certainly on the early
11 part of the 19th, the child was not seriously -- was not
12 ill to the extent that the mother was concerned about
13 leaving it on the 22nd.
14 Q. If the matters set out in the passage I have just read
15 to you had been put in a medical report or
16 a certificate, saying "This is my finding as a GP",
17 would you have been content to advance that to the
18 defence and to the court on 2nd January?
19 A. In the circumstances -- well, first of all, it wasn't,
20 and, secondly, I think I would have still been concerned
21 about what happened over the weekend. I had been told
22 about Pendine Park and would have expected that
23 Pendine Park was going to produce very good evidence, or
24 possibly produce very good evidence and very strong
25 evidence that would stop any further argument about
40
1 this, but I still have to say that, in view of the
2 threatening letter, I would have had to take advice from
3 the police as to whether I could make the application to
4 move the case forward at that stage.
5 Q. What did you tell the defence in early 2004 which led to
6 adjournments?
7 A. What did I tell them?
8 Q. Yes.
9 A. I am sorry, on the -- what did I tell them on
10 2nd January?
11 Q. Yes.
12 A. We told the defence that Mrs McKee couldn't attend
13 because her child was ill and we certainly, according to
14 my note, told them about the mumps and --
15 Q. 2nd January?
16 A. Mumps and swollen testicles. Yes.
17 Q. Sorry, let's be clear about this. I am asking you about
18 2nd January, not 22nd December. It was due to come back
19 on 2nd January.
20 A. Oh, sorry. I am sorry. I believe -- I am not
21 certain -- but I believe -- I think we did disclose the
22 medical report from Dr xxxxxxx, the medical statements
23 from Dr xxxxxxxx
24 Q. If we look at page [33912], this is your, I think,
25 running record. Is that right?
41
1 A. Yes, it is.
2 Q. Paragraph 20. You say there:
3 "By the time the case was mentioned in early
4 January, police had been unable to obtain medical
5 evidence which fully supported Andrea McKee's assertion
6 that her child was suffering from mumps and had been
7 brought to the doctor and diagnosed with mumps during
8 the weekend of 19, 20 and 21 December."
9 So there you seem to be saying that by the time it
10 was mentioned on 2nd January there had not been support
11 of the assertion of a treatment over the weekend. Is
12 that the fair reflection of what you were thinking at
13 the time?
14 A. Yes.
15 Q. Do we gather from that anything about what you told the
16 defence?
17 A. No.
18 Q. Does it assist you? Can you help us with what you would
19 have told the defence?
20 A. As far as I'm aware, but I'm not certain about this, we
21 did give the defence Dr xxxxxxxx's statements.
22 Q. If we go over to page [33913], there is another
23 adjournment. At paragraph 31 you say:
24 "As a result of this meeting", that's a meeting on
25 26th February, "on Friday, 27th February 2004 before
42
1 [blank] RM at Craigavon Magistrates' Court,
2 Ivor Morrison appeared to request the court to adjourn
3 consideration of the validity of the conditional
4 adjournment granted on 22nd December 2003 and take the
5 case out of the list for 8th March 2004 when the
6 committal proceedings proper had been due to begin if
7 all was in order.
8 "The basis of the application was that extensive
9 enquiries had not yet yielded completely satisfactory
10 proof of all the circumstances upon which the
11 prosecution had relied in seeking the adjournment on
12 22nd December 2003."
13 That's your record, isn't it?
14 A. That's right.
15 Q. Would you accept from me that that conveys the
16 impression that you were telling the court that
17 extensive enquiries into what the court had been told on
18 22nd December had not yet been finalised?
19 A. That's what it appears to me, yes.
20 Q. Was that accurate?
21 A. Well, it certainly -- sorry, if we look at the actual
22 words, it certainly was accurate that we did not have
23 completely satisfactory proof of the circumstances that
24 the prosecution had relied upon. I may be going back on
25 my previous answer. I'm not necessarily agreeing with
43
1 your interpretation of that.
2 Q. But were you telling the court, "We have not yet
3 bottomed out what we told the court on 22nd December.
4 Give us some more time to do it"?
5 A. I think that's about right, yes.
6 Q. That's not true, is it? You were not bottoming out what
7 you had been told on 22nd December at all. You were off
8 on another frolic, Pendine Park?
9 A. Pendine Park was not a frolic. Pendine Park was
10 an investigation arising from what Andrea had told the
11 police.
12 Q. Not what you had told the court?
13 A. We had told the court about illnesses. Pendine Park --
14 she was supposed to have visited Pendine Park on
15 19th December, which was shortly before the hearing was
16 supposed to start on the 22nd. Pendine Park appeared to
17 be the place where we were going to get stronger
18 evidence perhaps to support what Andrea had told police
19 and what we had told the court.
20 Q. But, Mr Morrison, you had had a GP who had been visited
21 on 1st December, visited the home on 11th December, been
22 seen again on 22nd December, had prescribed three sets
23 of antibiotics and had some sort of records, albeit
24 mostly incomplete.
25 All that was being said about Pendine was it is
44
1 an out-of-hours clinic which she visited about Calpol.
2 How could it possibly have been more valuable?
3 A. Andrea was prepared to come to court. She appeared to
4 be prepared to come to court on the 19th. Something
5 happened over the weekend which -- well, she appeared to
6 be prepared to come to court on the 19th. I don't know
7 whether that's true or not, that she was.
8 It appeared then that there was an intervening
9 illness of the child and, on her evidence and what she
10 had told us, because of that illness she had taken the
11 child out of hours to that clinic to get the child some
12 treatment. That appeared to be very, very relevant to
13 the question of whether she was able to leave the child
14 on the 22nd and come to court.
15 Q. When she told you on 9th January everything that I read
16 out earlier about the history of the illness, did you
17 believe her?
18 A. I think the answer to that is, no, not fully.
19 Q. So why didn't you check it with the GP?
20 A. Well, we had the GP's statements which were not
21 consistent with that. I accept that that may have been
22 an appropriate course to do, but the police had been
23 with the GP on more than one occasion. These matters
24 I think would have arisen had they all been true.
25 Q. Well, on the first occasion the police visited the GP,
45
1 the GP could not even get his act together to tell them
2 about one of the visits, could he? So how could you
3 rely on that sort of visit?
4 A. Well, he was going to be a big help then if we went out
5 to get another statement or report from him.
6 Q. Ah, right. That's it, is it? You didn't believe her,
7 but you weren't going to check the GP, because he wasn't
8 going to be a big help. Is that it?
9 A. I mean, I'm afraid it is you who is trying to tell me
10 that the GP was not very good at keeping records and
11 that sort of thing. I --
12 THE CHAIRMAN: That's what the one of the officers reported.
13 A. Well, that's a matter that ... I had no -- shall we say
14 I had certainly no ulterior motive for not getting
15 a report from the GP, but I am certainly saying that it
16 was not something that we gave a lot of consideration to
17 or that we gave any consideration to.
18 MR UNDERWOOD: Can we move to paragraph 18 of your witness
19 statement? That's at page [82020]. We are dealing
20 again with 9th January and the meeting which was
21 attended by you, Christine Smith and a detective chief
22 inspector we are calling K. Do you know who I mean by
23 that?
24 A. Yes, I do.
25 Q. "DCI K questioned Andrea about the threatening letter.
46
1 She said that she had not known to expect the letter in
2 advance. She was concerned that her present address was
3 known by whoever sent it. She did not now wish to give
4 evidence unless she was moved to a different address,
5 but would not move away from Wrexham and would be
6 reluctant to give up contact with her friend Glynis in
7 Portadown. I understood that the conditions she placed
8 on a move would have made it impossible for police to
9 place her in a witness protection scheme."
10 Now, I don't want to be unfair about the wording of
11 this. Are you saying that the impression you got from
12 that discussion on 9th January was that she was setting
13 essentially impossible conditions on giving evidence?
14 A. Yes.
15 Q. Again, I want to be fair to you. We have had evidence
16 from the witness protection team who visited her. Their
17 conclusion was that she had a choice of moving from
18 Wrexham and going into a witness protection programme,
19 or staying in Wrexham, moving house -- which would have
20 been no difficulty, and would have been perfectly
21 practical -- and having some lesser protection policies
22 put in place, such as putting her maiden name in the
23 telephone directory, and that they were perfectly
24 satisfied she was able to give evidence and willing to
25 give evidence.
47
1 Now, would you like to comment on that?
2 A. That information was never given to me at any stage.
3 Q. So the position was then, as of 9th January, you were
4 satisfied that she would not give evidence because she
5 had set impossible conditions. Is that fair?
6 A. It was still a matter that police were looking into as
7 far as I was concerned, but that was my understanding at
8 the time.
9 Q. You were never disabused of that understanding. Is that
10 correct?
11 A. Nobody ever came to me to say, "Look, we can sort Andrea
12 out here in this way", no, never.
13 Q. So as far as you were concerned, she was not going to
14 give evidence, was she?
15 A. At that time it looked unlikely, but I had no concluded
16 view on the matter. It was still being investigated by
17 the police.
18 Q. Let's go back. You told me a moment ago she, as far as
19 you were concerned, was setting impossible conditions
20 for giving evidence. Correct?
21 A. That was a matter for -- that judgment was for the
22 police, and that was my understanding, that the
23 conditions -- specifically they couldn't put her in
24 a witness protection scheme, which is what they were
25 thinking about at that time, as I understand it.
48
1 If -- I mean, later considerations may have been
2 relevant to the assessment of the threat by the police
3 after further consideration. I don't know. But
4 I don't -- I was never informed that the police would
5 have been perfectly happy to protect her in Wrexham.
6 Q. No. So as far as you were concerned, the impossible
7 conditions set as at 9th January obtained throughout the
8 remaining consideration of whether to use her as
9 a witness. Yes?
10 A. I think that's right.
11 THE CHAIRMAN: We will take a break now. Just before we do,
12 can you tell us: what led you to think or to believe
13 that Andrea McKee was setting impossible conditions on
14 coming to give evidence? What information did you have
15 to lead you to that conclusion?
16 A. Well, it was in conversation with police that I gathered
17 that information that they would be unable to put her in
18 a witness protection scheme unless she moved away from
19 Wrexham and cut off her connections with, I suppose,
20 friends, relatives, etc, who might identify her
21 whereabouts.
22 Certainly the questioning of her by the Detective
23 Chief Inspector was, I think, focused on that. What was
24 she prepared to do in order to comply with witness
25 protection? Was she prepared to move away from Wrexham?
49
1 She wasn't. Was she prepared to sever her links with at
2 least one friend in Portadown, which she was tentative
3 about? That was the focus of the questioning by the
4 Detective Chief Inspector on that occasion, and I am
5 quite sure we had some discussion then as to whether, in
6 the circumstances, she could be a candidate for
7 a witness protection programme.
8 THE CHAIRMAN: But did you think that, without the witness
9 protection programme operating in her case, she would
10 not be prepared to come to Belfast to give evidence?
11 A. She was saying, "I will move if I am safe" -- sorry --
12 she was saying "I will give evidence if I am safe". The
13 impression I was getting from the police was she would
14 only be safe if she was on a witness protection
15 programme and that she would have to be moved out of
16 Wrexham in order to be put on a witness protection
17 programme.
18 THE CHAIRMAN: Very well. 11.40 am.
19 (11.25 am)
20 (A short break)
21 (11.40 am)
22 MR UNDERWOOD: Mr Morrison, can I get you to look at
23 page [34071]? This is a letter of 10th December 2003.
24 You will have to take it from me for the moment that it
25 came from Richard Monteith --
50
1 A. Yes.
2 Q. -- directed to you on 10th December 2003. Headed,
3 "R v Hanvey and Others".
4 Can I just highlight some passages for you and get
5 to you comment on what they would have meant?
6 The third paragraph says:
7 "On considering the edited portions of the
8 interviews of DI Irwin and former Detective Chief
9 Superintendent McBurney, it is obvious to me that the
10 rest of these notes should be made available to me
11 forthwith. In support of same I would make the
12 following observations at this stage."
13 If we go down and highlight the rest of it, he says:
14 "1. Dealing with Mr McBurney ..."
15 Can I pick it up six lines down into that passage?
16 There is a sentence which begins:
17 "I feel I am entitled to know what other
18 circumstances led to the interview. Clearly Mr McBurney
19 has been put forward as a witness of truth, and",
20 I think that should be "credibility", "by the Crown in
21 this case. This is an identical position to
22 Robert Atkinson in the case of R v Hobson. I therefore
23 feel entitled to the entirety of the notes and certainly
24 a full explanation as to what he was being interviewed
25 about. It was not an insignificant interview as he
51
1 availed of legal representation. In the case of the
2 R v Hobson the entirety of Robert Atkinson's Ombudsman
3 transcript was made available to me. It is notable that
4 some of the interviewing officers there were Mr McBurney
5 and DI Irwin."
6 Did that convey to you some sort of threat that
7 Mr Monteith was going to raise a problem about
8 prosecuting, amongst others, Mr Atkinson, having
9 advanced Mr Atkinson as a witness of truth before?
10 A. I think it didn't particularly raise that with me at the
11 time. I was concerned at this time to carry out duties
12 in relation to disclosure of evidence. Mr Monteith was
13 making strenuous representations in relation to
14 disclosure. He wanted everything disclosed. I was
15 intent on disclosing on the basis of my duty as I saw
16 it, and disclosing, perhaps, in a conservative manner,
17 because there was the opportunity for disclosure at
18 a later stage and of disclosure being ruled upon by the
19 judge.
20 So I wasn't particularly concerned with the details
21 of Mr Monteith's letter. I was disclosing, as I saw it
22 my duty to do. I didn't take a lot of notice of this
23 particular letter.
24 Q. Just for completeness on this issue, did it cross your
25 mind there might be embarrassment in prosecuting
52
1 Atkinson, having used him as a witness of truth in the
2 trial against Hobson?
3 A. No, it didn't.
4 Q. I want to move finally to the conclusion about the
5 prospect of using Andrea McKee as a witness. Can we
6 have a look at page [33919]? Is this a letter or
7 memorandum?
8 A. A memorandum.
9 Q. Thank you. Of yours, of 16th March to the Director of
10 Public Prosecutions. Is that right?
11 A. Yes.
12 Q. You refer to the attached opinion provided by
13 Mr Simpson. We can look at that, if you need it. Do
14 you have a record of that?
15 A. I do.
16 Q. "... following his consultation with Andrea McKee on
17 Tuesday, 2nd March 2004. Mr Simpson has been advising
18 in the case for some two years and is very familiar with
19 all the issues involved.
20 "I attended the consultation with Mr Simpson. Also
21 present were [others] ... they each took notes of the
22 consultation, the relevant contents of which have all
23 been set out in Mr Simpson's advice.
24 "It is my view from what transpired at this
25 consultation and from the second of two previous
53
1 consultations I have attended with Andrea in Wales, that
2 she has been untruthful and has invented facts when she
3 felt that this course of action would suit her own
4 purposes. There is every reason to believe that her
5 story about visiting Pendine Park on the weekend before
6 she was due to give evidence in December is
7 an invention. The police have carried out very
8 extensive enquiries which would have been bound to have
9 revealed some trace of her visit with her child and
10 partner if it had taken place.
11 "While the Pendine Park issue is not a matter which
12 is directly relevant to the essential evidence in the
13 prosecution of Atkinson, Atkinson and Hanvey, it
14 provides a basis upon which the defence will attack her
15 credibility which, without doubt, will be critically
16 damaged.
17 "The prosecution depended upon the evidence of
18 Andrea, not only to prove that the present defendants
19 committed the offences alleged, but also to prove that
20 the offences were committed at all. In view of the
21 threadbare statement of her credibility, there is no
22 longer a reasonable prospect of convicting any of the
23 defendants of the offences with which they are charged.
24 "In reaching this conclusion, I have also considered
25 whether there is any possibility of proceeding with the
54
1 case without calling Andrea as a witness. It has always
2 been clear that she was the key witness", overleaf,
3 [33920], "in this case. Without her testimony there is
4 not a shred of evidence upon which the defendants could
5 now be convicted.
6 "In the circumstances, there is no reasonable
7 prospect of the conviction of any of the defendants and
8 I recommend that when the case is mentioned again at
9 Craigavon's Magistrates' Court on Friday, 19th March,
10 that the court be informed that the prosecution no
11 longer relies on the evidence of Andrea [blank] and is
12 not therefore in a position to proceed further with the
13 committal."
14 Was that a fair reflection of your views?
15 A. It was.
16 Q. So, to summarise, she had lied. As a result of her
17 lying, specifically about Pendine Park, you thought she
18 was a witness who would not be credible when she gave
19 evidence at a trial?
20 A. That is the purport of that minute, yes.
21 Q. Now, if we look at page [33914], this is the concluding
22 page of that what I call running note of yours --
23 A. Yes.
24 Q. -- dated 18 March. The final entry there is 35:
25 "The case is due to be mentioned again in
55
1 Craigavon Court tomorrow, 19th March 2004, before
2 [blank]. In the absence of satisfactory evidence
3 supporting the information given to the court on
4 22nd December 2003 about the nature and seriousness of
5 Andrea's son's illness, it is probable that [the
6 magistrate] would be unwilling to allow the proceedings
7 to proceed further."
8 Did you believe that too?
9 A. Clearly if I wrote it -- when I wrote it, that was my
10 feeling on the matter.
11 Q. Do you understand the contradiction between the two
12 passages I have just read to you?
13 A. I think there is a difference of approach. I'm not sure
14 that there's a contradiction as such.
15 Q. Well, let me tease it out for you.
16 In the first one, you say, "She is not a credible
17 witness, specifically in relation to Pendine Park, and
18 that affects the rest of her evidence and this will
19 emerge at trial".
20 In the second one, you say, "There is an absence of
21 satisfactory evidence supporting the information given
22 to the court 22nd December about the nature and
23 seriousness of the illness and it is probable that the
24 magistrate is going to throw it out the next day."
25 Do you understand that those contradict each other?
56
1 A. I see that they deal with different parts of the
2 probable -- the possible course of the prosecution.
3 Paragraph 35 concentrates on the difficulties of
4 actually getting the defendants committed for trial.
5 The letter to the Director or the memorandum to the
6 Director deals with what happens if it actually gets to
7 the trial stage, which is what Mr Simpson had actually
8 concentrated on in his opinion.
9 MR UNDERWOOD: I have no further questions. Thank you.
10 MR WOLFE: Nothing arising, sir.
11 MR ADAIR: Nothing arising, sir.
12 Questions from MR McGRORY
13 MR McGRORY: I have some questions, sir.
14 Mr Morrison, my questions are on behalf of the
15 Robert Hamill family.
16 A. Yes, Mr McGrory.
17 Q. Are you, or have you ever been, a member of the
18 freemasons?
19 A. No.
20 Q. Never?
21 A. Never.
22 Q. Do you know Richard Monteith personally?
23 A. I should say I used to be the assistant director for the
24 area in which he mainly practices. I would have bumped
25 into him in court from time to time. I may have had
57
1 a cup of coffee with him in Craigavon Court House, but
2 I have had that with many solicitors. Other than that,
3 I have never -- I have no connection with
4 Richard Monteith at all.
5 MR McCOMB: Sorry to object at this early stage, but my
6 friend may be leading up to -- I don't know what it is,
7 but the first two questions appear to me, sir, to be
8 premised on some assumption that my friend is making
9 that there is some improper relationship between the two
10 people, this witness and my instructing solicitor.
11 Perhaps if he could lay the ground for the basis on
12 which he may be pursuing this line of questioning,
13 I would be quite grateful, sir.
14 THE CHAIRMAN: It's a legitimate request. You are not
15 entitled just to fish to see what you may catch. There
16 has to be a proper basis.
17 MR McGRORY: Of course, sir. Absolutely. The questions
18 I am about to ask will hopefully reveal the reason why
19 those first two questions were asked.
20 THE CHAIRMAN: Well, I will let you continue for the moment.
21 MR McGRORY: I am much obliged.
22 Can I take you to your witness statement, please,
23 presented to the Inquiry at [82018]? Paragraph 13:
24 "The case was mentioned at Craigavon's Magistrates'
25 Court on 2nd January 2004."
58
1 Now, when the case was adjourned on 22nd December,
2 the magistrate asked for a medical certificate to vouch
3 for what he had been told in terms of the reason for the
4 non-attendance of Andrea McKee. Isn't that correct?
5 A. That's what my note basically says, yes.
6 Q. Yes.
7 A. Although I think we have had some discussion about the
8 word "certificate", and -- that's what the note says.
9 Q. Andrea McKee -- it was conveyed to the court that it was
10 Andrea McKee's belief that her child had mumps, that
11 there were swollen testes and so forth. Isn't that
12 correct?
13 A. That's correct.
14 Q. Yes. So all the prosecution was really being asked to
15 do was to vouch for her belief that that's why she
16 didn't attend. Isn't that what you were being asked to
17 do?
18 A. I believe it was more than that. I believe that it was
19 necessary to show that there was -- that that belief,
20 shall we say, was well-founded, and I think that there
21 is more to it than simply the question of the medical
22 certificates. I think we have a lady who, on the 19th,
23 was apparently prepared to go to court and, on the 21st,
24 wasn't prepared to go to court.
25 Should I say this court had been arranged some five
59
1 or six weeks in advance?
2 Q. Oh, yes.
3 A. There was considerable difficulty in arranging the court
4 for this period. Her interests had been taken into
5 account in fixing the date. She knew well that this was
6 an important -- was a very important matter for her to
7 attend. She knew that the police had made arrangements
8 for her to attend. If it was that the child had
9 a continuing, shall we say, lowish level of illness --
10 I don't know, I can't comment on what the level of
11 illness was -- but, if that was the case, then I think
12 it was her duty, and she should have seen it as her
13 duty, to tell the police in advance she couldn't attend.
14 I think it wasn't for her just on a whim to decide,
15 "I don't want to go. I have changed my mind. This
16 doesn't suit me".
17 So in order to prove that wasn't the case, it was
18 necessary to have substantial medical evidence
19 Q. Well, she had come over on 27th October. Isn't that
20 right?
21 A. She had.
22 Q. Indeed, the adjournment on that occasion was at the
23 request of the defence. Isn't that right?
24 A. That's absolutely right.
25 Q. So in the way these things work in the swings and
60
1 roundabouts, the rough and tumble of
2 Magistrates' Courts, the defence had asked for one
3 adjournment and, on 22nd December, you were in
4 a position where you had to ask for another, because
5 your witness had not come to court?
6 A. That's right.
7 Q. Certain information was conveyed to the magistrate and
8 he said, "Well, that's okay. I need some certification
9 of that". That's basically what happened?
10 A. That's basically what happened, yes.
11 Q. When you went to court on 2nd January 2004, at that
12 stage you had certification of the fact that the child
13 had been seen by a doctor on 1st December 2003. Isn't
14 that right?
15 A. Yes.
16 Q. And that, on that occasion, an ear infection was
17 diagnosed and the doctor acknowledged the possibility of
18 mumps?
19 A. Yes.
20 Q. Also, you had armed with you in court on 2nd January
21 a further report from Dr xxxxxxx saying there had been
22 a home visit on 11th December 2003?
23 A. That's right.
24 Q. In that report from Dr Baker he also acknowledged on
25 11th December there was the possibility of mumps.
61
1 A. Yes.
2 Q. So can we assume then, Mr Morrison, that for a mother to
3 convey the belief that her child had mumps, that was not
4 an unreasonable belief to arrive at, when the child
5 continued to be sick?
6 A. I think it was a belief that I would have expected her
7 to convey to the woman detective on 19th December.
8 There was a fair time, Mr McGrory, between 11th December
9 and 22nd December, when she was to be in court. If the
10 child had a continuing serious illness, which ultimately
11 was going to affect her willingness to go to court, then
12 I think that it was -- I would have expected her to
13 mention it to the policewoman on 19th December and not
14 say without any qualification, "I will be in court on
15 the 22nd".
16 Q. Forgive me, Mr Morrison. This is a new issue. You are
17 now saying to us that your concern about this witness
18 arises from the fact that she said nothing on the Friday
19 and then, all of a sudden, on the Sunday evening, she
20 has changed her mind, that that was the problem with
21 her.
22 A. That was part of the problem, Mr McGrory. I think that
23 the --
24 Q. Am I missing something, Mr Morrison? That's the first
25 time this has ever been put forward as a reason for
62
1 doubting Andrea McKee.
2 A. That may be so, but I am telling you what my view is,
3 that it was extremely surprising that she should -- she
4 was a witness under an obligation to come to court. She
5 knew that. She knew the importance of this. If the
6 child was sick to the extent it was worrying her on the
7 19th, why did she not tell the policewoman?
8 Q. You see, that's not mentioned in any of the numerous
9 documents arising from the consideration of this issue.
10 MR EMMERSON: My learned friend would wish to be corrected
11 if he is wrong. It is mentioned in various places.
12 I will deal with them in due course.
13 MR McGRORY: Okay. In any event, you arrived down on
14 2nd January, Mr Morrison, armed with these two reports
15 from Dr xxxx?
16 A. That's right.
17 Q. Now, the simple thing to have done was to have presented
18 these two reports to the magistrate and said, "Here is
19 your certification. She had a belief that her child had
20 mumps. Here is the certification from the doctor that
21 there was a history right up to and including
22 22nd December, when the child was diagnosed as having
23 a double ear infection. Can we please fix a date for
24 this committal?"
25 That's all you had to do.
63
1 A. Mr McGrory, I have explained, and I think, had it been
2 your clients that were the defendants, you would have
3 been very upset if I had done that and not mentioned
4 Pendine Park, which was a matter of -- which I had to
5 consider for disclosure purposes, and, as I have said,
6 there was also a matter of security.
7 Q. You see, on 2nd January, you had no reason to believe
8 that there was any problem with Pendine Park. Sure you
9 didn't?
10 A. I did.
11 Q. On 2nd January?
12 A. Yes. I had received that morning a fax, a faxed copy of
13 the statement from Dr xxxxx which said, "No, this lady
14 didn't attend as far as we can see. We don't have any
15 record that she attended on that day."
16 Q. Yes, but as far as -- the maximum that you knew is there
17 is no record but you had the mother's assertion to the
18 police that she did go. Isn't that right?
19 A. Yes.
20 Q. And you had the mother's belief that the child was so
21 ill with mumps that she couldn't travel.
22 A. That's what she was conveying, yes.
23 Q. You had verification that the child was ill and that
24 mumps had been suspected for weeks.
25 A. I am reluctant to put forward any medical opinion, but
64
1 it seems strange that that situation should have lasted
2 for so long if there really was mumps.
3 Q. You see, what you say in paragraph 13 of your witness
4 statement is that the case was mentioned on 2nd January.
5 No medical evidence was presented and the case was
6 further adjourned for the matter of Andrea's
7 non-attendance to be dealt with on a future date. Is
8 that the truth?
9 A. It is.
10 Q. Is it the case that no medical evidence was presented?
11 A. I'm not sure whether I gave copies to the defence and
12 possibly the court. I don't think so, but you certainly
13 didn't put it in and say, "This is the evidence that we
14 are relying upon for the adjournment". I just am not
15 sure about that.
16 Q. Well, you certainly had some conversations with
17 Mr Monteith on that day, did you not?
18 A. Very possibly.
19 Q. You made some comments about an ear infection at least.
20 A. I don't know.
21 Q. Well, could you look at page [33983]? This is a letter
22 from Mr Monteith to you dated 16th February 2004.
23 A. Oh, yes, yes.
24 Q. "Following the appearance on 2nd January and the
25 disclosures that you made at that stage about the
65
1 alleged sickness in Wrexham, I would be obliged if you
2 would let me have well before 27th February any further
3 relevant disclosures about the sickness or otherwise."
4 A. Yes.
5 Q. So clearly you did say something on 2nd January about
6 an ear infection.
7 A. Yes. I have always said that -- as far as I am
8 concerned, I think I did disclose the existing medical
9 reports to the defence. They would have gathered that
10 from -- Mr Monteith would have got that information from
11 the medical reports.
12 Q. You see, isn't it the case, Mr Morrison, that, in fact,
13 you expressed some doubts about Andrea McKee's reason
14 for not coming to court to Mr Monteith?
15 A. I have no reason to believe that I did.
16 Q. Why did you have to say anything about ear infections?
17 A. Because that was the medical evidence that I had at the
18 time and I think it was incumbent on me to give the
19 defence some information about what was going on.
20 I couldn't come to the court and simply say, "I want
21 a further adjournment", without some sort of explanation
22 to the defence, but I have no note as to exactly what
23 I said.
24 Q. Did you say to him by any chance, "She has told us
25 something about going to a night clinic, but we can't
66
1 verify that"?
2 A. I don't know. I don't think so.
3 Q. You see, because he asks you in this letter:
4 "It may well be that there will actually have to be
5 a witness statement prepared by yourself and
6 Miss Smith ..."
7 A. Yes.
8 Q. So whatever it was you said to Mr Monteith on
9 2nd January, he wants a witness statement from you
10 possibly.
11 A. Mr Monteith and Mr Mallon -- I am not sure whether
12 Mr Mallon was there on the 2nd; I am not sure, but he
13 did appear in the case -- were obviously sceptical about
14 anything said or done by Andrea McKee. I think that
15 Mr Monteith was very capable of writing this letter in
16 this tone without me having said what you suggested.
17 Q. You see, a can of worms has been opened here then.
18 Isn't that right? That is what has happened. Now
19 Monteith is saying he wants witness statements from
20 prosecutors obviously.
21 A. Yes.
22 Q. All of a sudden there is a big spotlight on what was
23 a simple, straightforward explanation as to the
24 non-attendance.
25 A. I am sorry. I just don't agree, Mr McGrory. There were
67
1 other complications which had to be considered. I had
2 to take those all into account in that morning and
3 progress the case in as safe a way as possible, shall we
4 say, and that was what I tried to do.
5 Q. If you could look at your witness statement towards the
6 end of paragraph 13, over the page at [82019], at (d).
7 A. Yes.
8 Q. "I was aware of the fact that Andrea had received
9 a threatening letter ..."
10 A. Yes.
11 Q. You go on to say something here:
12 "If I had obtained ratification of the adjournment,
13 as far as I was aware this could have signalled to
14 a terrorist organisation that Andrea was committed to
15 giving evidence despite their threat, thereby possibly
16 compromising her safety."
17 A. Yes.
18 Q. Would it not have had the opposite effect?
19 A. I am sorry?
20 Q. By stalling, by stalling and not pressing for a date to
21 be fixed, were you not sending a message to a terrorist
22 organisation that such threats bear fruit?
23 A. No. I am sorry. I just -- well, I think I understand
24 your question. There was a threat to this woman. If we
25 had -- a threat that may have been a serious threat,
68
1 a threat that may have been an indication that there was
2 a danger to her. That danger was predicated upon her
3 giving evidence. That's what the letter suggested. If
4 we had proceeded in a way that showed Andrea Smith is
5 going to turn up -- or Andrea is going to turn up on
6 whatever it was, 8th March, to give evidence, that would
7 have -- that possibly would have signalled to the
8 organisation that may have sent this letter that she was
9 still a willing witness and they might have taken, if
10 they were capable of doing it, action to further try to
11 prevent her giving evidence.
12 Q. But did you discuss that with the police as to what sort
13 of message would be sent?
14 A. Well, I think, if I can bring you back to the actual
15 day, this was the day after the New Year holiday. It
16 was the first day back to work. I had just received the
17 information about Pendine, that there wasn't a statement
18 forthcoming from Pendine -- a positive statement, from
19 our point of view, forthcoming from Pendine at that
20 time. I had a number of things to discuss with the
21 police. I knew that the police were dealing with this
22 threat. I think if you look at the various journals and
23 things like that of the police, the police took it
24 seriously. They had to take it seriously.
25 I had to be careful what I did regarding the case so
69
1 as not to prejudice the witness. I cannot tell you
2 chapter and verse what consultations I had with the
3 police about that, because this was a fairly -- this all
4 took place in a fairly short space of time.
5 Q. I have to suggest to you, Mr Morrison, you have made
6 this up since then as another possible reason.
7 A. Well, I haven't made up the threat to her safety. It is
8 quite clear that to proceed would have been -- would
9 possibly have compromised her safety. I have said in
10 the opening part of that paragraph that I don't --
11 I cannot say what my exact analysis was at the time, in
12 that I took this decision followed by that decision and
13 that decision, but these were all matters which were
14 certainly to be considered. I mean, it would have been
15 reckless of me not to take her safety into
16 consideration.
17 Q. Could you look, please, at page [33913], paragraph 31?
18 I think this is your running note -- correct me if I am
19 wrong -- of events.
20 A. Yes.
21 Q. You discuss going down on Friday, 27th February to try
22 to get another adjournment while Mr Simpson is arranging
23 to see the witness. Isn't that right?
24 A. I think that's right, yes.
25 Q. You go down on 27th February. Halfway down you say:
70
1 "The basis of the application was that extensive
2 enquiries had not yet yielded completely satisfactory
3 proof of all the circumstances upon which the
4 prosecution had relied in seeking the adjournment ..."
5 A. Yes.
6 Q. "[Name redacted] objected to the application on the
7 basis that, on 22nd December, the defence and the court
8 had been told that Andrea McKee's child was seriously
9 ill with testicular mumps. This, he said, was simply
10 not true, as the only proof presented so far was that
11 the child had an ear infection. He said that the court
12 might have taken a different view if it had been told
13 only that the child had an ear infection. He rehearsed
14 some of the history of the case and the difficulties for
15 his clients."
16 Then it goes on in the next paragraph:
17 "Richard Monteith, on behalf of Kenneth Hanvey, said
18 it was even worse than Mr [name redacted] had described,
19 in that Mr Morrison and Miss Smith had been told what
20 was a blatant lie and an utter lie. He also rehearsed
21 some of the history of the case and the difficulties
22 which taking it out of the list on 8th March would
23 cause."
24 A. That's right.
25 Q. Isn't it the case then, insofar as Mr Monteith and the
71
1 other representative were concerned, that they felt
2 there had been a serious misleading of the court in
3 respect of an ear infection?
4 A. That seems to be what they were saying, yes.
5 Q. In fact, that's not the reality. You had nothing to
6 worry about, because all Andrea McKee had ever said was
7 she believed he had mumps and there was nothing in the
8 medical evidence that was inconsistent with her belief?
9 A. If that is your opinion, it is not an opinion that
10 I share.
11 Q. What Mr Monteith is saying now is that he wants some
12 sort of a big investigation into what you and Miss Smith
13 have told the court.
14 A. Yes. That's what he is saying.
15 Q. Did that cause you concern?
16 A. No.
17 Q. You see, I suggest it shouldn't have caused you concern,
18 because you had told the court nothing that was
19 inconsistent with the medical evidence.
20 A. I told the court nothing inconsistent with what we had
21 been told -- the message that had come through from
22 Andrea on 21st December.
23 Q. You see, Mr Morrison, are you operating at this time
24 under the mistaken belief that somehow or another your
25 conduct and the conduct of Miss Smith is going to be put
72
1 under some sort of spotlight?
2 A. I think -- I'm not quite sure at what stage we were
3 aware that there was to be a public Inquiry or there
4 might be a public Inquiry in this case. Certainly many
5 of my actions -- sorry -- should I say I was generally
6 aware that there was concern about this whole case, but
7 as far as believing that there would be some inquiry
8 into what Miss Smith or myself had said or that we might
9 have to give evidence about it, I had no concerns about
10 that at all.
11 Q. You see, what has happened on 2nd January is that you
12 have gone down to court and all you really needed to do
13 was present the evidence to the magistrate to explain
14 the absence of Andrea McKee on 22nd December, but you
15 did more than that. You have raised a doubt in the mind
16 of the defence about the veracity of her reason for not
17 coming to court?
18 A. Well, I'm sorry. If that doubt was raised, then --
19 well, I'm not sure at what level that doubt was raised,
20 but I have to say that ultimately we could not have put
21 in those medical reports without disclosing that there
22 were other issues. That simply would have been a breach
23 of our duty of disclosure.
24 Q. You see, what has happened by not proceeding with just
25 presenting the explanation is you have conveyed to the
73
1 defence that you were concerned about it, that you
2 didn't accept it.
3 A. If they picked that up from me, I don't know. That's
4 a matter for them.
5 THE CHAIRMAN: Mr McGrory, are you saying that Mr Morrison
6 should not have disclosed anything about Pendine on this
7 occasion?
8 MR McGRORY: He didn't need to, no.
9 THE CHAIRMAN: He says it would have been professionally
10 improper not to mention it. Do you want to challenge
11 that?
12 MR McGRORY: Pendine presented you with no problem,
13 Mr Morrison, really.
14 A. It did present us with a problem because we had
15 a witness, a very important witness, who had told us or
16 told the police something.
17 The police had gone to get confirmation of that,
18 expecting, as far as I know, to get confirmation of
19 that, and they had got exactly the opposite, and what
20 she had told us was directly relevant to or appeared to
21 be directly relevant to her non-appearance and obviously
22 what -- when it was found that that didn't appear to be
23 true, that also was directly relevant to her
24 non-appearance.
25 Q. You see, at the most, all you had to do, Mr Morrison,
74
1 was to say, "Well, look she also told us she had went to
2 a night clinic, but we have not got that verified. But
3 here's what we have got", and let the magistrate decide
4 whether the grounds for an adjournment were sufficient?
5 A. Well, the magistrate I think would have also heard the
6 views of the defence and would have had to take those
7 into account.
8 What I did was, at that stage, in the expectation or
9 certainly in the hope that we would get first class
10 evidence ultimately from Pendine, evidence that would
11 put a stop to this whole discussion, what I did was put
12 the matter back, adjourn the matter until such time as
13 we were in a proper position to present all the evidence
14 that we expected would be gathered.
15 Q. You see, the other issue I have with you, Mr Morrison,
16 is that none of this has anything to do with the actual
17 case in terms of what it is -- the prosecution you were
18 actually bringing. It is about why Andrea McKee did or
19 didn't turn up on 22nd December.
20 A. Yes.
21 Q. What we are seeking here is a date to continue with the
22 committal.
23 A. That is right, but a date which was subject to the
24 considerations of the reason for the adjournment on
25 22nd December.
75
1 Q. But the magistrate is only to deal with the issue of
2 whether there is a prima facie case. If there is
3 an issue about him being misled, that's a separate
4 issue. It has nothing to do with the actual case.
5 A. Well, in a sense, I agree that that would be his duty
6 when he had heard all the evidence, to decide whether
7 there was a prima facie case, a case for it to go to the
8 Crown Court. That would be the case.
9 We had -- but we couldn't ignore -- I couldn't
10 ignore that morning the fact that there had been
11 an adjournment -- we had asked for an adjournment on
12 certain grounds and had been told, "We can get your
13 adjournment if you can show us those grounds were
14 correct". On 2nd January, there were issues about that
15 and there was the additional issue of the letter and her
16 safety.
17 It would have been completely wrong of me to have,
18 I think, done anything other than I did do on that
19 morning.
20 Q. You see, I am suggesting that you are confusing two
21 issues, Mr Morrison. If the RM wished to have
22 an examination as to whether or not he had been told the
23 truth, that would be a disciplinary issue or an ethical
24 issue for the lawyers concerned, but it has nothing to
25 do with getting on with the case.
76
1 A. I am sorry. I don't see what was disciplinary or
2 ethical at all. We had told him what we believed at
3 that time. We were simply gathering evidence to support
4 that. That evidence was in a state at that stage where
5 it would have been unprofessional for me to disclose one
6 part without the other. The other part being Pendine,
7 as far as I knew, may have rectified itself by further
8 investigations of Pendine. Unfortunately, it didn't,
9 and that raised problems.
10 I accept there are different issues, but at some
11 point they touched together.
12 Q. You see, Mr Monteith in his letter that I had shown you
13 earlier --
14 A. Yes.
15 Q. -- is saying, "I maybe want witness statements from you
16 and Miss Smith about this". Isn't that right?
17 A. That's right.
18 Q. So that's now in your mind.
19 A. It was never a worry to me at all.
20 Q. That it might have been easier for you if this
21 prosecution went away, then Mr Monteith would go away?
22 A. It would be very --
23 THE CHAIRMAN: It doesn't seem as though everyone agrees.
24 MR McGRORY: Mr Monteith never seems to go away.
25 A. He is persistent, but making a statement about this
77
1 would have been the least of my worries.
2 Q. Can I -- you then had several meetings after all of this
3 with Mr Simpson. Isn't that right? In that document
4 that's already up, in an earlier paragraph,
5 paragraph 30, you will see there you had meetings with
6 Mr Simpson on 17th February, 25th February and then on
7 26th February --
8 A. Yes.
9 Q. -- when he attended a meeting with the Director and
10 Mr xxxxxxx. Is that right?
11 A. I think that's right.
12 Q. During those meetings, it was obviously conveyed to
13 Mr Simpson in fairly forcible terms that by then you had
14 your serious doubts about this prosecution because you
15 couldn't bottom out the Pendine issue. Isn't that
16 right?
17 A. Well, he had my -- what do you call it -- my running
18 note of the situation. He had seen Andrea, had given it
19 his full consideration. He certainly knew that we were
20 concerned about the Pendine issue, yes.
21 Q. Of course, the Director on the meeting of the 26th
22 himself raised an issue at [33980]:
23 "The Director said that he had to be sure that he
24 had taken every proper step to advance the case", this
25 is the third paragraph, "and he expressed the view that
78
1 in all the circumstances Andrea McKee may remain
2 credible on the main issue."
3 A. He did.
4 Q. So despite all your concerns being expressed to
5 Mr Simpson and the Director, the Director has raised the
6 very valid point, that, "Well, whatever all of that
7 about Pendine, she may be believed on the main issue."
8 A. That was something that he required to explore and be
9 satisfied about.
10 Q. That really is what it is all about, is it not? I mean,
11 whatever it is about Pendine, the issue here is: will
12 she be believed on the main issue?
13 A. Ultimately, I think that that is the -- well, that is
14 the case, but there are other considerations.
15 For example, I mean, there are many scenarios that
16 might have developed, depending on what we did, what the
17 defence did, that sort of thing. If the magistrate at
18 some further point down the line said, "I have seen the
19 statements of Dr Barker. I have been made aware of the
20 Pendine issue", shall we say," I have every sympathy for
21 this lady if her child was ill. I find some issues I am
22 not happy about. Are you going to call this lady to
23 give evidence about Pendine?" we simply could not have
24 done that. That is one possible scenario. It's not one
25 that may have been particularly likely, but that's the
79
1 sort of difficulty that we were in: can you call
2 a witness that you know is going to give perjured
3 evidence?
4 If for any reason she had to be called simply on the
5 question of Pendine, then we would have -- we could not
6 possibly have called her in those circumstances.
7 Q. I am going to come to that in a moment, but what the
8 Director raised with you on 26th February was -- well,
9 you are going to him and you are saying, "I want to drop
10 this prosecution".
11 A. No, the Director was involved in these matters before
12 that. He had asked me to get Mr Simpson to see the
13 witness. He knew what was going on. He was very
14 engaged in this whole thing, but it was a requirement
15 from me, having received the -- having been the person
16 who attended the consultation along with Mr Simpson,
17 having received Mr Simpson's opinion, it was a matter
18 for me to pass that on to the Director with my own
19 views. Sorry, I am maybe taking that out of -- slightly
20 out of context, but it was the Director's requirement
21 that Gerry Simpson see Andrea. As I say, he was very
22 engaged in this matter.
23 Q. Yes, but what the Director is asking you, of course, on
24 26th February is, "Tell me why she might not be believed
25 on the main issue". That's the question he asked to be
80
1 addressed. Would you agree that that's what that
2 passage suggests?
3 A. Well, the address -- really what the passage
4 addresses -- this is not -- this is not an instruction
5 to me to address that issue. It's, in fact, a note that
6 he wanted me to get Mr Simpson to see the witness to
7 address questions mainly of her credibility.
8 Q. Yes. Well, there were two questions which needed to be
9 addressed, Mr Morrison. One is whether or not you are
10 all right about her not telling the truth about Pendine
11 and, secondly, how does that affect the question of
12 whether or not she is still telling the truth on the
13 main issue, which was the substance --
14 A. Yes. I agree with that.
15 Q. Those are two simple questions. What he is saying is,
16 "You are all telling me she is not telling the truth
17 about Pendine. Mr Simpson has not seen her. I want
18 know what he is saying about that question."
19 A. Yes.
20 Q. "The second question I want answered as the Director of
21 Public Prosecutions before I drop this prosecution is:
22 even if we think she might be telling a lie about
23 Pendine, how does that affect the prosecution?"
24 A. Yes.
25 Q. That's the second question he needs to be resolved.
81
1 A. He was certainly asking that. He was, as it were,
2 thinking out loud saying this.
3 Q. Yes.
4 A. "Is she still credible? Can she still be called as
5 a witness on the main issue, even if she is telling us
6 lies?" Yes, that's what he wanted addressed.
7 Q. In terms of the actual prosecution, the only evidence
8 you needed to lead Andrea McKee on is on the issue --
9 the main issue as to whether or not she had conspired
10 with others to pervert the course of justice. Isn't
11 that right?
12 A. Well, that was the core evidence that we had to lead,
13 yes. I think there was a lot of background that had to
14 go in as well.
15 Q. Yes, yes, but insofar as this what I suggest was a red
16 herring about the reason for the adjournment on
17 22nd December, that is not an issue in the preliminary
18 Inquiry that you needed to lead evidence on.
19 A. I disagree. Well, we probably would not have led
20 evidence on it, but I am as certain as I can be that the
21 defence would have raised it with her.
22 Q. Yes. That's another matter I suggest to you, but
23 insofar as --
24 A. Well, it's a matter -- if she had raised it, she would
25 have lied and we then would have been putting her into
82
1 the witness box to give evidence on oath knowing that
2 she was lying. That's just one aspect of it.
3 Q. If that happened, then the question that you and the
4 Director needed to ask yourselves was, "Okay. If we
5 lead her through her evidence on the main issue, and if
6 the prosecution cross-examines her about the adjournment
7 and she repeats what she said about Pendine, will that
8 affect the credibility of her evidence on the main
9 issue?"
10 That's the question, isn't it?
11 A. It is.
12 THE CHAIRMAN: You have to address that question
13 independently from the question, "How does she seem to
14 be as a witness about the case itself?"
15 Do you agree with that?
16 A. I think ultimately our concern was: how does she seem as
17 a witness in the case itself?
18 How exactly the whole thing would pan out was
19 a matter of some speculation, as I say, how -- the first
20 stage was this preliminary enquiry. How would her
21 evidence pan out in that? Would her evidence be so poor
22 that the case would not be returned for trial at all?
23 Then, in the trial, could we call her knowing that
24 she would be cross-examined about this and would lie on
25 this issue and would probably lie -- I mean, I think
83
1 it's -- having seen Andrea, I think she has a capacity
2 to change her story in accordance with any difficulties
3 that she perceives, and we -- apart from the general
4 principle of not calling a witness that you know is
5 going to lie, you didn't know where she was going to lie
6 and where she might change her evidence.
7 MR McGRORY: Of course, Mr Morrison, the very substance of
8 her evidence was about the fact that she had told a lie.
9 A. It was.
10 Q. So that has to be dealt with anyway.
11 A. It has to be, yes --
12 Q. Yes.
13 A. -- and it would have been. If she had been a person who
14 was coming along and getting rid of all her baggage and
15 we could say, "This is a person who now has repented, as
16 it were. She has told lies before in different
17 circumstances, but now she is telling you the truth
18 about everything, about everything", then I think those
19 are the circumstances that we originally thought we
20 would have and that she would be possibly a very
21 compelling witness, but there was this major, major
22 blemish, and it wasn't something -- it wasn't a lie that
23 wasn't at all connected with this case. It was a lie
24 about her coming to give evidence in this case and that
25 was a major difficulty.
84
1 Q. But if it was a lie, it's not that she completely
2 invented an illness. Sure it's not?
3 A. Possibly. Possibly she completely invented the things
4 like the swelling of the testicles.
5 Q. Yes, but you already had plenty of evidence that the
6 doctor had twice advised her during the month of
7 December that mumps was a possibility.
8 A. Yes, but -- I will refrain from appearing to give any
9 more medical evidence, but I think you should perhaps
10 inform yourself about the relationship between mumps and
11 swollen testicles in children of that age.
12 Q. You see, Mr Simpson then sees her and he gives
13 an opinion and the conclusion of his opinion is at
14 page [33918]. It is at paragraph 18.
15 A. We have got the wrong ...
16 Q. [33918]. My apologies:
17 "In the circumstances of this case the prosecution
18 will be called upon to explain the adjournment which
19 resulted from her non-attendance on 22nd December. The
20 explanation given by Ms [blank] is untruthful in my view
21 in the light of the police enquiries. It would be
22 inappropriate to put this version of events forward
23 knowing that, as will inevitably happen if she goes into
24 a witness box, she will give untruthful evidence."
25 A. Yes.
85
1 THE CHAIRMAN: Is Mr Simpson speaking there of the
2 Magistrates' Court?
3 A. Yes, I think he is.
4 MR McGRORY: In terms of the conduct of the preliminary
5 enquiry there was no necessity for the prosecution to
6 put anything forward about the adjournment?
7 A. I don't know whether that's the case or not. It
8 depends. The adjournment, as it were, was contested.
9 It was very unlikely at that the magistrate would stop
10 the case. He would have to have very strong grounds for
11 stopping the case simply because of the concern about
12 this adjournment, but he --
13 THE CHAIRMAN: I am not sure he has even the power. He
14 could have said, "This case will go on on the date fixed
15 whether or not Andrea McKee attends."
16 A. I think, sir, that is probably -- I think it is very
17 unlikely that he would ever have said -- unless he had
18 set a date like that, I think it is very unlikely he
19 would have said, "I am just not allowing this
20 adjournment and stopping the case". I think the whole
21 issue would have perhaps coloured his attitude to the
22 case perhaps.
23 MR McGRORY: Perhaps, perhaps, perhaps, Mr Morrison, but
24 this is the rough and tumble of taking prosecutions.
25 Perhaps your witness may not stand up. Perhaps your
86
1 witness may answer some questions in a way you wouldn't
2 like them to answer them. Perhaps, perhaps, perhaps,
3 but what we are talking about here is the stopping of
4 a prosecution --
5 A. Yes.
6 Q. -- on the basis of a possible lie about an adjournment.
7 What I am trying to get to the bottom of is that
8 your objective was to get to a preliminary enquiry and
9 to lead the evidence that you intended to lead about the
10 main issue.
11 A. That's what we hoped we would be able to do, yes.
12 Q. She may or may not be cross-examined about the reasons
13 she gave for not coming to court on 22nd December, and
14 you would have, in your duty of disclosure, handed over
15 anything you had.
16 A. We would.
17 Q. And so be it.
18 A. I think --
19 Q. That's all you had to worry about. There was no reason
20 to drop this prosecution.
21 A. There are questions going beyond that and there are
22 issues just about calling a witness that we consider to
23 be dishonest, whose credibility -- her credibility was
24 already thin, but, as I have said, she could have been
25 a very good witness, because she was saying, "I have
87
1 lied. I have done all sorts of things, but I am now
2 putting that behind me and telling you the entire
3 truth", but the problem is that we knew that she wasn't
4 telling the entire truth about other matters which were
5 connected with this case.
6 Q. You see, if you look at Mr Simpson's paragraph there, he
7 said:
8 "It would be inappropriate to put this version of
9 events forward knowing that, as will inevitably happen
10 if she goes into the witness box, she will give
11 untruthful evidence."
12 He appears to be suggesting there that, "We can't
13 lead this type of evidence". Is that what you
14 understood him to be saying?
15 A. Well, I am sure you can ask Mr Simpson about this.
16 Q. Yes, but what did you understand? You asked for the
17 opinion.
18 A. I have -- I don't have a memory of analysing that
19 particular paragraph of the opinion. I know what
20 ultimately his views were on the calling of Andrea and
21 I think it is not very profitable to try to remember how
22 I analysed that particular paragraph some years ago.
23 Q. You see, there are a lot of considerations to go into
24 the balance here that weren't in Mr Simpson's opinion,
25 some of which you have already touched upon.
88
1 One of them would be she has already -- the very
2 basis of the prosecution is that she told one lie.
3 A. Yes.
4 Q. That's the very basis of the prosecution.
5 A. Yes.
6 Q. And she is coming to court to say that she had
7 previously told a lie.
8 A. Yes.
9 Q. That, in fact, in an ironic sort of a way, strengthens
10 the case. Isn't that what you have just said to us?
11 A. Yes, provided that at this stage she is -- at this stage
12 nobody can point to her telling any new lies or any more
13 lies.
14 Q. Apart from that initial lie, one needs to look then to
15 other issues in terms of what has happened since, as you
16 say, and, in fact, she has actually pleaded guilty --
17 A. Yes.
18 Q. -- and got a suspended sentence.
19 A. Yes.
20 Q. That fact is admissible?
21 A. Yes.
22 Q. Not only did she plead guilty, but her husband pleaded
23 guilty?
24 A. Yes.
25 Q. That fact is also admissible --
89
1 A. Yes.
2 Q. -- under PACE. Isn't that right?
3 A. Yes.
4 Q. Those are pretty powerful indicators that her evidence
5 to the court on the fact that she told a lie about the
6 alibi is the truth?
7 A. That I think would have been our view and we would not
8 have directed a prosecution if we didn't think that her
9 evidence would have been impressive and I think the fact
10 she had pleaded guilty made it impressive, yes.
11 Q. That's the issue here. It is not mentioned in
12 Mr Simpson's opinion, nor is there any evidence that you
13 sat down with the Director and said, "Hold on a minute,
14 Director. There is this bit about Pendine, but so far
15 as the main issue is concerned, we have all of these
16 other things."
17 A. The relationship between the main issue and the issue on
18 which she was telling lies was certainly a matter for
19 our consideration.
20 Q. Of course, using an accomplice in any case is always
21 a situation where this issue has to be addressed as to
22 someone who has already been guilty of a crime --
23 A. That's right.
24 Q. -- as to whether or not they are now telling the truth.
25 A. Well, an accomplice could possibly have come to the
90
1 police and told the truth right from the start. So it's
2 not always an issue, but there are difficulties with --
3 accomplice evidence is not the most straightforward.
4 Q. No, but there is quite a bit of law on this, isn't
5 there, particularly in this jurisdiction, with the use
6 of supergrasses and so forth?
7 A. Yes. Well, there is quite a lot of experience of using
8 supergrasses.
9 Q. Of course, judges will say to juries or to themselves,
10 if it is a Diplock court, "Well, this witness may be
11 telling me lies about all sorts of things, but what
12 I have to decide is", or to the jury, "What you have to
13 decide is: is this witness telling the truth about the
14 substance of the case?"
15 A. That may be so. My recollection of the supergrass cases
16 is that, in fact, very few of them resulted in
17 convictions. There were acquittals either at first
18 instance or on appeal, and, generally speaking, the
19 judges I think found difficulties in deciding whether
20 a witness was -- they had concerns that some supergrass
21 witnesses were telling mostly the truth but some lies,
22 and they had difficulties in distinguishing between the
23 two, or being sure they could distinguish between the
24 two, and most of the defendants got the benefit of the
25 doubt.
91
1 THE CHAIRMAN: This case is far removed from a supergrass
2 case.
3 A. Yes.
4 THE CHAIRMAN: A supergrass is saying, "I have committed
5 many crimes", and then he is going to talk about maybe
6 quite a number of other crimes accusing others with whom
7 he may have committed those crimes.
8 A. Yes.
9 THE CHAIRMAN: But here, Andrea McKee had committed the one
10 crime. She had lied, you say, about Pendine.
11 A. Yes.
12 THE CHAIRMAN: That's a very different kettle of fish from
13 supergrass cases.
14 A. Yes.
15 THE CHAIRMAN: Very well.
16 MR McGRORY: The law is very, very clear, Mr Morrison, in
17 terms of a witness telling lies in the course of
18 evidence, particularly when it is an accomplice, the
19 court will take great care to closely examine what the
20 witness is saying about the main issue, and, indeed,
21 advise a jury to concentrate on that issue.
22 A. The court will always tell juries to consider the main
23 issue, yes, and to give careful consideration to that,
24 yes.
25 Q. That's what you should have been weighing up, but there
92
1 is no evidence in any of these papers that you sat down
2 with the Director and said, "Well, we have this problem
3 with Pendine, but against that we have all of these
4 things going for us."
5 A. I'm sorry, but it is quite clear that that was in the
6 Director's -- a matter that was in the Director's
7 consideration, and he, as it were, commissioned
8 Mr Simpson's opinion on that and there was further
9 consideration of that opinion, and that -- it was
10 a matter, shall I say, that was certainly considered.
11 Q. Just going back to 2nd June, Mr Morrison, isn't it the
12 case that what has happened here --
13 A. 2nd June?
14 Q. -- sorry, 2nd January -- was that you expressed doubts
15 about Andrea McKee to the defence and they lit on it?
16 That's what happened?
17 A. I am quite sure, I am quite certain that the defence had
18 expressed doubts about Andrea McKee without anything
19 that I may have said.
20 Q. And that you have got yourself completely deflected on
21 a side issue here?
22 A. I disagree.
23 Q. You utterly lost sight of the main purpose of this
24 prosecution and of the real strength of your case?
25 A. I disagree.
93
1 MR McGRORY: Thank you.
2 Questions from MR MALLON
3 MR MALLON: Just a very small number of questions.
4 A. Yes, Mr Mallon.
5 Q. I appear on behalf of the Atkinsons.
6 A. Yes.
7 Q. Now, as a prosecutor, can we take it that you would
8 never, ever deliberately mislead the court?
9 A. Yes.
10 Q. Can we also take it that you wouldn't cut, dice, parse
11 or so arrange the evidence of your knowledge or the
12 evidence that you had heard so that you wouldn't mislead
13 yourself, the court or any counsel?
14 A. Well, I would try very hard not to mislead the court or
15 counsel.
16 Q. So when it came to this incident in respect of the
17 adjournment on 22/12, the conditions of that adjournment
18 were transmitted to the court in all innocence?
19 A. Sorry. Are you talking about what we believed or what
20 we had been told --
21 Q. What you had been told.
22 A. Yes.
23 Q. The condition of the child was as outlined by
24 Constable Murphy?
25 A. Yes.
94
1 Q. The child might have had measles or might have had
2 mumps?
3 A. Yes.
4 Q. It might have had swollen testicles? It might have had
5 a high temperature? It might have been fitting?
6 A. Well, I think we were told that that was the case as far
7 as Andrea McKee had reported it to the
8 Detective Constable, yes, and that's what we passed on
9 to the court.
10 Q. The next day, when that child was examined by a doctor,
11 were any of those conditions found to be present?
12 A. Well, I can only rely on the information that we had,
13 which was, I think, an ear infection, and I think there
14 is something in the record about swollen glands.
15 Q. An ear infection?
16 A. Mainly an ear infection, yes.
17 Q. No mumps? No swollen testicles? No high temperature?
18 No fitting?
19 THE CHAIRMAN: Mr Mallon, we are not a jury and I don't
20 think we have forgotten the evidence we have heard on
21 this.
22 MR MALLON: Yes.
23 THE CHAIRMAN: No need to repeat it.
24 MR MALLON: In view of the way it was laboured by
25 Mr McGrory, I thought I had better make it clear.
95
1 If that's the case and you found out on the
2 22nd that the only infection was an ear infection, did
3 you feel you had been lied to?
4 A. I had an open mind at that time, Mr Mallon, because
5 enquiries were incomplete, and I certainly hoped that we
6 would receive evidence from Pendine Park that, despite
7 the fact that we had already got the negative statement
8 from Pendine Park, I still hoped that we would get
9 evidence there that would confirm, or more completely
10 confirm, what we had been told on 22nd December.
11 Q. Well, if we look at 22nd December, an adjournment
12 conditional on satisfactory evidence that was to satisfy
13 the court of the condition of the child would be
14 produced?
15 A. That was the reason for the -- that was the basis of the
16 adjournment, as far as I am concerned, yes.
17 Q. If it wasn't produced, then the whole issue of the
18 adjournment would be revisited. Isn't that right?
19 A. Yes. I think that was my understanding and that -- yes,
20 that's the case.
21 THE CHAIRMAN: Revisited in what way, Mr Mallon?
22 MR MALLON: In that Andrea McKee would be required to come
23 to the court to give her explanation in respect of those
24 matters.
25 A. Sorry, is that a question to me?
96
1 Q. Yes. Wasn't that the suggestion?
2 A. That suggestion had been made at some stage, but how --
3 I think it was a long way down the road before that
4 might happen, if it would happen at all. I think that
5 suggestion was made at some stage.
6 Q. Then she would be cross-examined. Along the road,
7 somewhere along the line, but somewhere, she would have
8 to meet that allegation of Pendine and the allegation
9 that the defence had been misled and the court had been
10 misled by the condition that she alleged her child
11 suffered from?
12 MR UNDERWOOD: It is a false premise that the court had been
13 told about Pendine.
14 MR MALLON: No, with respect, I said "somewhere along the
15 line".
16 A. It would have been, yes.
17 Q. Now, on the occasion when Andrea came back to deal with
18 the right of an adjournment -- the condition of the
19 adjournment --
20 A. Yes.
21 Q. -- she would have had to deal then with all the issues
22 that you would disclose to the defence, including
23 Pendine?
24 A. Yes. I think in reality, Mr Mallon, I think it was
25 very, very unlikely that we would ever put Andrea in the
97
1 witness box to deal with this issue alone, you know, on
2 the question of the adjournment, but, of course, if we
3 didn't put her in the witness box, I suspect that the
4 defence would have made a substantial issue out of that.
5 THE CHAIRMAN: It would have been for the magistrate to
6 decide whether she should go into the witness box to
7 deal separately with the adjournment or whether she
8 should give her evidence, in which case she could be
9 cross-examined about the adjournment?
10 A. Yes, that's right.
11 THE CHAIRMAN: Yes.
12 MR MALLON: I have to suggest to you that the magistrate had
13 left the day open for submissions in respect of the
14 adjournment alone. Do you remember that?
15 A. 2nd January certainly was just to deal with the
16 adjournment so that -- well, that is correct. That's
17 what it was.
18 Q. Then because you weren't ready to deal with them, that
19 was further adjourned until 13th or 14th January,
20 I suspect.
21 A. I think it may have gone to February. I'm not quite
22 sure.
23 Q. 13th or 14th February, when this whole issue was to be
24 raised and dealt with by the magistrate?
25 A. Yes.
98
1 Q. That would have involved, by that time, you having
2 disclosed to the defence that she had lied about
3 Pendine?
4 A. It would have involved disclosing, I think, the
5 enquiries that had been made and probably the statements
6 from witnesses at Pendine and other investigations by
7 the police, yes.
8 Q. They might all have had to have been called?
9 A. I don't think we would have called them.
10 Q. No, but they may have been required to be called?
11 THE CHAIRMAN: By whom?
12 A. By the defence.
13 THE CHAIRMAN: They can't require that.
14 MR MALLON: They can ask the court to do it.
15 THE CHAIRMAN: But it would have to be if the magistrate
16 agreed.
17 MR MALLON: If the court and the magistrate did agree, then
18 she would have had to give evidence which you, yourself,
19 knew to be untruthful?
20 THE CHAIRMAN: There is just a problem, isn't there, about
21 calling other police officers? That's calling evidence
22 as to credit, which is not permissible.
23 MR MALLON: However, Andrea McKee --
24 THE CHAIRMAN: She can be cross-examined certainly.
25 MR MALLON: -- would have had to give her evidence and be
99
1 cross-examined.
2 THE CHAIRMAN: Yes.
3 MR MALLON: In respect of that, their statements could have
4 been put to her and the truthfulness or untruthfulness
5 of her account been examined by a magistrate.
6 THE CHAIRMAN: Well, the allegations could be put to her.
7 MR MALLON: You see, I have to suggest to you that you
8 foresaw all of this and that you knew that this was not
9 a witness of truth and she would be exposed either at
10 this court or at a subsequent court as being put forward
11 by the prosecution, they knowing that she had lied.
12 A. Mr Mallon, on the 2nd January, I have set out in my
13 statement my views there and the difficulties about
14 proceeding. I hoped that some of those difficulties
15 might go away, because evidence might be produced about
16 Pendine Park, and I didn't know what the outcome would
17 be of enquiries about the threatening letter.
18 As time went on, clearly we had realised that there
19 were difficulties and that's why we took steps to deal
20 with those difficulties, to try to see -- try to gather
21 evidence as to what the true position was, to give
22 proper legal consideration to it by bringing in
23 Mr Simpson in discussions with the Director.
24 Q. That brings me to Mr Simpson.
25 A. So, I mean there was a number of scenarios that might
100
1 have developed in the future. I can't really say at
2 what time I faced each one of them.
3 Q. Yes. If we could go now to page [33918],
4 Mr Simpson's --
5 THE CHAIRMAN: Mr Mallon, will you be many minutes longer?
6 MR MALLON: No, no, this is the final moments.
7 THE CHAIRMAN: Very well then.
8 MR MALLON: Mr Simpson -- could we open 18, 19 and 20,
9 please, and enlarge them -- I suggest is absolutely
10 accurate when he says this:
11 "In the circumstances of this case the prosecution
12 will be called upon to explain the adjournment which
13 resulted from her non-attendance on 22nd December."
14 Would you agree entirely with that?
15 A. I agree that that was a matter that the magistrate was
16 still enquiring about, still interested in, yes.
17 THE CHAIRMAN: That's a paragraph referring to the
18 Magistrates' Court, isn't it?
19 A. It is, yes, Chairman.
20 MR MALLON: "The explanation given by Ms [name redacted] is
21 untruthful ..."
22 Would you agree with that?
23 A. Yes.
24 Q. "... in my view in the light of the police enquiries."
25 That's Mr Simpson's view. It is not a question of
101
1 you believing her, but on objective evidence she was
2 untruthful?
3 A. I think so, yes.
4 Q. He then goes on to say:
5 "It would be inappropriate to put this version of
6 events forward ..."
7 Do you concur with that?
8 A. Yes.
9 Q. Was that because of your duty as a prosecutor not to
10 mislead the court?
11 A. Well, the best we could have done would have been to put
12 forward the statements from Dr Barker, but at the same
13 time we would have had to put -- we would have had to
14 give other information so that we would have been in
15 difficulties. I mean, we could not have said, "This is
16 definitely what happened", because we have reason to --
17 Q. You wouldn't have cut, altered, changed or misled
18 anyone? That evidence would have all gone before the
19 court?
20 A. That information would have gone before the court, yes.
21 Q. That would have established her as untruthful again?
22 A. It is a matter for the magistrate what view he took on
23 the matter. He may have -- I mean, he may have taken
24 a -- well, one doesn't know what view he would have
25 taken, but I think he would have taken the view, yes,
102
1 that she was untruthful.
2 Q. But you do accept that it would be inappropriate to put
3 this version of events forward knowing that, as will
4 inevitably happen, if she goes into the witness box, she
5 will give untruthful evidence?
6 THE CHAIRMAN: Forgive me, Mr Mallon. You are asking your
7 question on a false premise.
8 One of two things could have happened in the
9 Magistrates' Court. Either the magistrate could have
10 said, "I want to go into this now, not as part of the
11 committal proceedings", in which case it would have been
12 perfectly proper for the prosecution simply to tender
13 Andrea McKee. They would not have to say, "This is what
14 happened or what she says happened". Simply tender her.
15 Alternatively, the magistrate could have said,
16 "I shall hear the committal evidence", in which event
17 the prosecution would have been perfectly entitled to
18 call Andrea McKee, to ask her about the offence itself,
19 ask her nothing about the adjournment and leave it to
20 the defence.
21 MR MALLON: Those are matters --
22 THE CHAIRMAN: So the premise that the prosecution was going
23 to have to put forward, if they called Andrea McKee,
24 a false account is simply wrong.
25 MR MALLON: Well, then, I have just taken that from
103
1 Mr Simpson's --
2 THE CHAIRMAN: I don't care.
3 MR MALLON: -- opinion. While you have said a number of
4 things and you may well be accurate in some of them or
5 all of them, the magistrate may also have taken the view
6 that, when she was tendered and cross-examined, she was
7 untruthful. Isn't that a really strong possibility in
8 this case?
9 A. Yes.
10 Q. It would have been very hard to come to any other
11 conclusion when you have read and seen the depth of the
12 police investigation and the articulate way in which she
13 lied?
14 A. Yes.
15 Q. Your own evidence and that of Christine Smith, if you
16 had been called, would have had to confirm that. You
17 would have had to say she lied, wouldn't you?
18 A. Yes, I'm just looking at the possibility --
19 THE CHAIRMAN: Excuse me. Are you envisaging Mr Morrison or
20 Miss Smith could have been called? That is nonsense.
21 MR MALLON: I suggest --
22 THE CHAIRMAN: A witness cannot be called to say "I think so
23 and so is lying".
24 Now, let's get on to something else if there is
25 anything else. You are not going to pursue this line.
104
1 MR MALLON: Would you also agree with Mr Simpson in
2 paragraph 19:
3 "The overall effect of her maintenance of the
4 story", that is the untruthful story that she had, "for
5 which there is not a thread of corroboration, is to
6 contaminate any evidence that she may give ..."
7 Would that be your view as a prosecutor?
8 A. Yes.
9 Q. "... and completely to undermine her general
10 credibility."
11 Would that be your view as a prosecutor too?
12 A. It would have undermined her credibility, yes.
13 Q. Would you then agree with Mr Simpson's conclusion:
14 "In those circumstances, I am not in a position to
15 advise that she can be put forward by the prosecution as
16 a witness capable of belief."
17 Would that have been your view as well?
18 A. Yes.
19 MR MALLON: Thank you very much.
20 THE CHAIRMAN: We will break off until 2.10 pm.
21 (1.10 pm)
22 (The luncheon adjournment)
23 (2.10 pm)
24 THE CHAIRMAN: Mr Underwood, can I correct something I said
25 this morning?
105
1 I said that the magistrate could, if he had wished,
2 have simply heard Andrea McKee on the adjournment issue.
3 He would have been ill-advised to do that, because, had
4 he done that, he would then have had to recuse himself
5 from hearing the committal proceedings, having formed
6 a view about a witness before the witness was called in
7 those proceedings.
8 MR UNDERWOOD: Yes.
9 THE CHAIRMAN: So really, he had only one course open. That
10 was simply to hear the committal.
11 Yes, Mr Berry?
12 Questions from MR BERRY
13 MR BERRY: Mr Morrison, I am Greg Berry. I appear for
14 Andrea McKee. You will be pleased to know I intend to
15 move you away from testicles to concentrate a bit on
16 court procedures. I want to ask you just about the
17 committal process. You have described in a little
18 detail your understanding of it and I'd just like to
19 explore that with you, if I may.
20 Now, your understanding of the role of the
21 magistrate, could you outline what that was at committal
22 stage?
23 A. The role of the magistrate is to hear evidence,
24 generally evidence presented by the prosecution,
25 although he may hear evidence by the defence, although
106
1 that would be extremely unusual, and decide whether --
2 basically whether there is a prima facie case. It is
3 not exactly how it is expressed in the Act, but that
4 I think is how it is interpreted.
5 Q. It is correct, is it not, that the magistrate has to
6 take the prosecution evidence at its height?
7 A. That would generally be the case.
8 Q. Yes. Well, it is the case, is it not?
9 A. I think he has to take the evidence as he finds it and
10 make up his mind.
11 Q. Yes, and that involves a process of taking the
12 prosecution case at its reasonable height?
13 A. I don't disagree with that.
14 Q. In terms of a committing magistrate, you have mentioned
15 about a prima facie case. We have discussed about
16 taking the case at its reasonable height.
17 Is it part of the magistrate's function, as you
18 understand it, to determine issues about a witness'
19 credibility?
20 A. That rarely would arise. I think if a magistrate was
21 faced with a witness that was so conflicted that he felt
22 he couldn't believe the witness at all, then I think
23 that he should make a judgment about that.
24 Q. That, of course --
25 THE CHAIRMAN: That would be a very rare case, wouldn't it?
107
1 A. It would be a very rare case.
2 MR BERRY: That would be a rare case, but it would be
3 confined, would it not, to evidence in respect of the
4 charge or charges that the magistrate was being asked to
5 return upon?
6 A. Again, generally, that would be the case. Every case is
7 different and one doesn't know what may arise in the
8 course of a particular case.
9 Q. Now, dealing with this case, if Andrea McKee had been
10 called, say, in March or April 2004, to give evidence at
11 the committal, you would have expected the prosecutor to
12 simply ask her about her evidence in respect of the main
13 issue, I think, as the Director referred to it.
14 A. If we got to that stage, yes.
15 Q. Well, if she is called to give evidence -- and she was
16 being required to give evidence, wasn't she? This was
17 a mixed committal?
18 A. It was.
19 Q. If she is being called to give evidence by the
20 prosecutor, the prosecutor would ask her about the
21 allocations insofar as she could give evidence in
22 respect of the charges?
23 A. Yes.
24 Q. She would be subject to cross-examination?
25 A. She would.
108
1 Q. And that cross-examination would be potentially in
2 relation to the charges. Yes?
3 A. Generally, it would. That would generally be the case,
4 yes.
5 Q. The defence may attempt to ask her about matters
6 relating to her credibility?
7 A. They may.
8 Q. Now, if the matter had got to that stage, you presumably
9 would have disclosed material to the defence in relation
10 to Pendine and your enquiries?
11 A. The likelihood is that that would have happened
12 substantially before this, when issues about the
13 adjournment were resolved.
14 Q. Yes, but certainly prior to her giving evidence?
15 A. Yes.
16 Q. Yes. Now, if the defence had asked her about Pendine,
17 did you consider that the prosecutor could legitimately
18 object to that as being a collateral matter in terms of
19 committal proceedings?
20 A. Yes, the prosecutor could have objected.
21 Q. Because the magistrate is being asked to decide on the
22 charges, evidence relating to the charges.
23 A. Yes.
24 Q. Isn't that right?
25 A. That is right, yes.
109
1 Q. So again, if that objection had been made, and indeed
2 sustained, would you have expected that the accused
3 would have been returned for trial on indictment?
4 A. In the event that you are talking about, if we had
5 reached that stage, and that -- she had given her
6 evidence about the offences and that had not -- and that
7 evidence, as it were, hadn't been severely damaged by
8 cross-examination on the issues, then, yes, I would have
9 expected her to be returned for trial -- the defendants
10 to be returned for trial.
11 Q. Yes. Now, if they had been returned for trial, the next
12 stage in the process in terms of the court is
13 arraignment. Isn't that right?
14 A. That is correct, yes.
15 Q. At that stage, of course, some or all of the defendants
16 may have pleaded guilty?
17 A. That, I think, is extremely unlikely in this particular
18 case.
19 Q. Well, it happens, doesn't it?
20 A. It does happen, but, I mean, one -- they had every right
21 to plead not guilty and there was every expectation that
22 they would plead not guilty. This was a very serious
23 charge for them all and it's hard to conceive of any
24 situation where they would have pleaded guilty.
25 Q. Let's take it that they pleaded not guilty and we move
110
1 on to the trial itself and Andrea McKee is called to
2 give evidence?
3 A. Yes.
4 Q. She gives evidence about the main issue and she is asked
5 about that by the prosecutor, gives her
6 evidence-in-chief and then is susceptible to
7 cross-examination.
8 A. Yes.
9 Q. Now, at that stage, she could, of course, legitimately
10 be cross-examined about matters affecting her
11 credibility. Isn't that right?
12 A. Yes.
13 Q. Presumably you anticipated that she could well be asked
14 about Pendine and matters of that nature?
15 A. I don't think that I took scenarios, as it were, that
16 far, to be quite honest.
17 Q. Why not?
18 A. Because of the -- I think one of the issues here is
19 because the -- we, as a department, with the advice of
20 counsel, had decided that this witness was no longer
21 a credible witness and, having made that decision, it
22 wasn't going to get that far.
23 Q. Well, do you accept that in all likelihood if she had
24 been put into the witness box at committal, there would
25 have been a return?
111
1 A. I don't know, but if she had given the evidence that was
2 in her statement, I think that is likely, yes.
3 Q. Can I ask you just about the Crown Court? If she had
4 given evidence and were cross-examined about Pendine,
5 that's a matter going to her credibility. Isn't that
6 right?
7 A. It is, but it's closely associated with this case and
8 it's not an entirely separate matter. It's not a matter
9 of, say, another offence that she might have committed
10 otherwise --
11 THE CHAIRMAN: Credibility only, I am afraid.
12 MR BERRY: Can I ask you this in relation to that? There
13 was other material that presumably a jury could
14 consider, not just her evidence. Isn't that right?
15 A. There was the evidence of the telephone call. There was
16 technical evidence of the telephone call and there was
17 her plea of guilty and her husband's plea of guilty.
18 Q. Yes. What about her husband's plea of guilty? What
19 consideration was given to that?
20 A. The likelihood is that that would have been served as
21 additional evidence.
22 Q. Yes. To what end and purpose?
23 A. Because it would have been admissible, because it would
24 have given some additional strength to her evidence.
25 Q. How so?
112
1 A. It would have simply let the jury know that someone else
2 had pleaded guilty to this conspiracy. It would not
3 have been -- on its own, it would have been absolutely
4 no evidence against the defendants at all, but it would
5 be of some strength to the evidence of Andrea. She had
6 given that evidence.
7 Q. Was it your view that the jury, for example, would be
8 informed that Mr McKee received a sentence of immediate
9 custody?
10 A. That might well be. That would be likely, yes.
11 Q. Now, the factors you have identified together with any
12 evidence of Mrs McKee on indictment, would you agree
13 with me that those are matters which essentially would
14 normally be left for a jury to weigh?
15 A. Yes, if it got to that stage.
16 Q. In terms of those factors that you have listed, those
17 matters for a jury to weigh, would you agree that they
18 amount to a compelling prosecution case?
19 A. Depending on the view that the jury took of
20 Andrea McKee, yes.
21 Q. That's really it, Mr Morrison. You have hit the nail on
22 the head, have you not? Depending on the view that the
23 jury took of Andrea McKee, but also of the other factors
24 that you have enumerated. Isn't that it?
25 A. Substantially the first.
113
1 Q. But also the other matters?
2 A. Yes.
3 MR BERRY: Thank you, Mr Morrison.
4 Questions from MR McCOMB
5 MR McCOMB: Just one question, sir. Just arising out of the
6 last.
7 At that time in the early part of the 2000s, when
8 this trial might have started --
9 A. Yes.
10 Q. -- there was -- the undercurrent at least suggested that
11 there was a Loyalist element involved. Would that be
12 fair enough to say?
13 A. Yes.
14 Q. I am just asking you that in the context of, what do you
15 think, Mr Morrison, would have been the likely form of
16 trial here? Would it have been a scheduled one or ...?
17 A. This would not have been a scheduled one I think because
18 it was not a scheduled offence.
19 MR McCOMB: Right. Thank you.
20 THE CHAIRMAN: So it would have been a jury trial, would it,
21 for those of us who are foreigners?
22 A. Yes.
23 Questions from MR EMMERSON
24 MR EMMERSON: Mr Morrison, if I can just deal with one
25 relatively formal matter first. Mr McGrory put to you
114
1 that the evidence that you have given here today is the
2 first time anybody had raised the fact that, on
3 19th December, no mention had been made by Andrea McKee
4 of the sickness of her child as a factor relevant to
5 assessing the credibility of the account that was
6 subsequently given in relation to Pendine.
7 Could I ask you, please, just briefly to look at
8 [33911]? This is in your rolling summary of events.
9 Paragraph 15.
10 A. Yes.
11 Q. Did you there record that during the course of that
12 contact on 19th December, as related by the
13 detective constable whose name appears there --
14 A. Yes.
15 Q. -- "Andrea appeared happy with the arrangements and at
16 no time during the conversation did she mention the fact
17 that her son was sick."
18 A. That's correct.
19 Q. If we can look briefly at [33916], please, at
20 paragraph 4 of Mr Simpson's opinion, does he there
21 record:
22 "On Friday, 19th, Ms McKee was contacted by the
23 [officer] to confirm the final travel arrangement. She
24 did not mention the problems with the child to [the
25 officer] but indicated that the arrangements were
115
1 suitable. In consultation with her I asked her about
2 this failure to alert police to any potential difficulty
3 which the sickness of the child might cause. She told
4 us that she had thought that she had mentioned it to
5 police and agreed that it was surprising that she did
6 not mention the illness of the child to
7 Detective Constable Murphy."
8 Do you see that?
9 A. I do.
10 Q. You were at that consultation, were you not?
11 A. I was.
12 Q. That's the consultation that took place on 2nd March.
13 A. Yes.
14 Q. Just to be absolutely clear, was that a factor that you
15 had discussed with Mr Simpson as being material to the
16 relevance and importance of Pendine?
17 A. Yes, it was.
18 Q. The materiality of it was that something must have
19 happened between the 19th and 21st to change her
20 position from one where she was willing to travel to one
21 where she was not?
22 A. Yes.
23 Q. The only medical appointment that had happened between
24 the 19th and 21st was the claimed attendance at Pendine?
25 A. That's correct.
116
1 Q. Thank you.
2 Now, various questions have been put to you about
3 the reasons for the investigation of Pendine. We know
4 from other evidence that Detective Sergeant H spoke to
5 Andrea McKee on 30th December as part and parcel of
6 investigating the medical attendances, and by then there
7 was confirmation of the 1st and 22nd.
8 A. Yes.
9 Q. But it was during a conversation between he and she on
10 the 30th that she first mentioned both the home visit on
11 the 11th --
12 A. Yes.
13 Q. -- and her attendance at Pendine?
14 A. Yes.
15 Q. Now, we have also heard from other evidence that the
16 police immediately and spontaneously sprang into action
17 to investigate both those matters without intervention
18 from the Director's office or from yourself.
19 A. That's correct.
20 Q. So can we take it then that the investigation into
21 Pendine was well underway before you were even aware
22 that Pendine had been mentioned or was the subject of
23 investigation by the police?
24 A. It -- I was made aware, I think, that they were going to
25 see the doctors in Pendine on -- during the day -- they
117
1 saw the doctor who made the negative statement, as it
2 were --
3 Q. Yes.
4 A. -- in the evening. I think they did let me know that
5 they were going to see somebody that evening with
6 a complete expectation of getting a positive statement.
7 Q. From the point of view of everybody investigating at
8 that stage, there was no reason to suppose that she
9 would have lied about a matter of that kind. Is that
10 right?
11 A. No, there was no reason at that stage.
12 Q. As those investigations progressed, and at each stage of
13 the way it was not possible to substantiate what
14 Andrea McKee had said about that visit, were those
15 investigations being conducted and directed by the
16 police themselves?
17 A. They were.
18 Q. What role, if any, did you have in directing the police
19 investigation?
20 A. No role in directing it. I heard from them from time to
21 time as to where they had got to, but, no, I had no role
22 in directing it.
23 Q. I think there came a time after the 9th January
24 consultation in which a description had been given of
25 the appearance of the doctor when further investigations
118
1 were conducted to see if there was any doctor on duty
2 over the weekend who might have matched the appearance
3 that had been given during the consultation with
4 Christine Smith. Is that right?
5 A. That's right.
6 Q. What would have been the position with those
7 investigations? Would they have been investigations at
8 your specific request or would they have been
9 investigations conducted by the police off their own
10 bat?
11 A. They would have been conducted by the police off their
12 own bat.
13 Q. Can we look, please, at [33983]? This is a letter that
14 I think has been shown to you more than once.
15 A. Yes.
16 Q. This is a letter dated 16th February referring to the
17 upcoming hearing on 27th February, in which it is
18 suggested that statements may have to be made by
19 yourself and Miss Smith.
20 A. That's right.
21 Q. "... to cover this point", as the letter puts it.
22 A. That's right.
23 Q. I think it was suggested to you in questioning that this
24 letter was evidence that you had somehow tipped the
25 defence off --
119
1 A. Yes.
2 Q. -- at the 2nd January hearing --
3 A. Yes.
4 Q. -- that there was a problem with Andrea McKee and
5 corroborating her account.
6 Do you remember that suggestion being put to you?
7 A. Yes, I do, yes.
8 Q. First of all, would there, in your view, be anything
9 improper about you informing the defence on 2nd January
10 that, though some medical evidence was available, it was
11 not available to deal with the period between 19th and
12 21st?
13 A. There would have been nothing wrong with that as far as
14 I know.
15 Q. You have said earlier on that you thought it would be
16 professionally improper to give the defence certain
17 medical evidence when you knew there was a problem --
18 A. Yes.
19 Q. -- over what she had said about Pendine without also
20 alerting them to the fact that there was a problem. Is
21 that correctly understood?
22 A. That is correctly understood.
23 Q. Do you know now whether you gave them the statements,
24 such as they were, on or before 2nd January?
25 A. Certainly not before 2nd January. I believe that I did
120
1 give them Dr xxxxxxxx's statement, but I have no certain
2 recollection of that.
3 Q. Plainly, we can see from later interchanges that they
4 must have had those statements by 27th February?
5 A. Yes.
6 Q. Because there is reference in the course of your note of
7 the hearing to the contents of the documents in the
8 sense that they refer to an ear infection.
9 A. Yes, that's right.
10 Q. For the sake of clarity, you don't know, or you do know,
11 when those statements were handed over to the defence?
12 A. I don't know for certain.
13 Q. But is it your evidence that, as and when you did hand
14 them over, you would have made the defence aware that
15 there was more to the account that Andrea had given?
16 A. Yes.
17 Q. Than was revealed on the face of those statements?
18 A. That would be correct, yes.
19 Q. Now where the letter here suggests, if we just look at
20 it in a little more detail, the second half of it.
21 Mr Monteith says:
22 "Clearly I will be relying upon the very firm
23 explanations given to me by yourself and Crown counsel
24 with regard to the alleged sickness of the Crown
25 witness's child. It may well be that there will
121
1 actually have to be a witness statement prepared by
2 yourself and Miss Smith to cover the point, particularly
3 if Mrs McKee ... attempts to give a different version."
4 Do you see that?
5 A. I do.
6 Q. Now, am I right in thinking that on 2nd January
7 Christine Smith was not in attendance at the
8 Magistrates' Court?
9 A. She was not.
10 Q. So this can only be a reference to what was said on
11 22nd December?
12 A. Yes.
13 Q. So did you understand this letter then to be suggesting
14 that you and Miss Smith might have to make a statement
15 about the representations that had been made on
16 22nd December?
17 A. I did understand that to be Mr Monteith's view, yes.
18 Q. Leaving aside the realism of that --
19 A. Yes.
20 Q. -- there is no suggestion that you were going to be
21 asked to make statements about what may or may not have
22 been said on 2nd January?
23 A. No.
24 Q. Can we look, please, at [33913], because it has been
25 suggested to you by Mr McGrory that really what you
122
1 should have done at these hearings was just to put
2 forward the incomplete medical evidence that supported
3 the ear infection and suspected mumps without saying
4 anything --
5 A. Yes.
6 Q. -- about the problems that had by then been identified,
7 and really let the magistrate crack on and decide the
8 matter on the basis of what would, on any view, have
9 been an incomplete and misleading representation about
10 the state of the medical evidence.
11 MR UNDERWOOD: I don't think that's right. There was no
12 suggestion that the magistrate would have to crack on
13 and make that decision.
14 MR EMMERSON: Very well. The magistrate would have --
15 I thought that the suggestion that had been made by
16 Mr McGrory was that you should have put before the
17 magistrate only the evidence that positively supported
18 contact with the GP without informing the court or the
19 defence that there was a major lacuna in relation to the
20 account that she had given as to what had happened
21 between the 19th and 21st to justify her change of
22 stance.
23 If I have misunderstood the suggestion, then
24 obviously I will be corrected, but that was what
25 I thought was being put to you.
123
1 A. That's what I understood was being put to me. I mean,
2 that situation just -- I would have been entirely wrong
3 to do that, because it would have completely been
4 contrary to my duties of fairness and duties of
5 disclosures, etc, to do that at that time.
6 Q. But we can see as well, can we not, from paragraphs 31
7 and 32, that at that hearing on 27th February the
8 defence by then are aware of what the state of the GP
9 evidence was: namely, an ear infection and suspected
10 mumps?
11 A. Yes.
12 Q. The defence were, if I can put it this way, making
13 a song and dance about the fact that the medical
14 evidence that you were producing to them thus far did
15 not support the gravity of the condition as it had been
16 represented to the court on 22nd December.
17 A. Yes, that's correct.
18 Q. Just to pick up the suggestion that Mr McGrory made
19 that, really, it should have been left to the magistrate
20 to look at that material and decide for himself whether
21 he thought that was sufficient -- I thought that was the
22 way it was put -- if we could just pick up the way the
23 magistrate did react to that material as it then was --
24 A. Yes.
25 Q. -- just halfway down paragraph 32:
124
1 "The resident magistrate indicated that he
2 considered the situation most unsatisfactory ..."
3 Do you see that?
4 A. Yes.
5 Q. "... that it appeared that the court had previously been
6 misled. He referred to the amount of time which had
7 passed since committal proceedings had started and the
8 consequences which might follow from that."
9 Can we just check the following page, [33914]:
10 "With reluctance, he adjourned the case until
11 19th March but required that there should then be some
12 form of finality."
13 A. Exactly.
14 Q. Can you just help us from recollection, please, if there
15 is anything you can add to that, what the magistrate's
16 reaction was to being told that there was some medical
17 evidence, albeit medical evidence that did not fully
18 support the representations that had been made on
19 22nd December?
20 A. Well, he really just thought the situation was
21 unsatisfactory. He wanted the situation resolved by
22 appropriate and full evidence being presented to him in
23 due course, as soon as possible.
24 Q. Can you help us as to this: if the magistrate is
25 expressing the view that he thought he had been misled,
125
1 there are two obvious possibilities there.
2 One is that he thought he was being misled because
3 the medical evidence supported attendances or
4 consultations with the GP on the 1st, 11th and 22nd, but
5 did not go so far in relation to the condition as the
6 representations had gone on 22nd December.
7 That's one possible way he may have reached that
8 conclusion?
9 A. Yes.
10 Q. The other possible way is he may have been alerted,
11 either by yourself or by defence counsel, to the fact
12 that, though this evidence was there, there was
13 a further enquiry based on what Andrea McKee had said
14 about her attendance between the 19th and 21st which
15 could not be corroborated.
16 Do you remember now which of those two it was?
17 A. I think it was the first. I don't think he was aware of
18 the Pendine Park issue as far as I know.
19 Q. But presumably, all parties were aware that you did not
20 regard the medical evidence you had as sufficient,
21 because otherwise you would not have been asking for
22 adjournments?
23 A. That would be correct, yes.
24 Q. Can we just go to the meat of the final process by which
25 the decision came to be taken that Andrea McKee's
126
1 credibility on the central issues had been fatally
2 undermined by her lies about Pendine?
3 A. Yes.
4 Q. I just want to see if I can just get certain issues
5 here. You, you have told us, were present at both the
6 consultation on 9th January in Wrexham with
7 Christine Smith. Correct?
8 A. Yes.
9 Q. And the consultation with Gerry Simpson on 2nd March?
10 A. That's correct.
11 Q. I think you are the only member of the prosecution team
12 who was present at both.
13 A. That's right.
14 Q. Now, a lot has been said so far about the fact that
15 aspects of her account could not be corroborated because
16 there was no record of her attendance at the Pendine
17 clinic or the telephone calls between the two.
18 A. Yes.
19 Q. I just want to ask you about that one aspect that has
20 not been brought out in the questions which have been
21 put to you, which is a very specific aspect in the way
22 she sought to explain herself.
23 A. Yes.
24 Q. We have seen records that show when she first told DSH
25 about Pendine on 30th December, she claimed that the
127
1 doctor she had seen at Pendine was a woman.
2 A. Yes.
3 Q. That was shown to you by Mr Underwood.
4 A. It was, yes.
5 Q. We know from the notes of the meeting that took place in
6 Wrexham on 9th January that she told you and
7 Christine Smith that the doctor who had examined the
8 child was a grey-haired man.
9 A. That's right.
10 Q. Do you recall at that stage questioning her about that
11 discrepancy?
12 A. Christine Smith was handling most of the questioning.
13 I can't say for certain at this moment. I would have to
14 refer to her notes.
15 Q. But she was asked in some detail about the examination
16 itself?
17 A. She certainly was, yes.
18 Q. As we have seen and heard from Christine Smith's notes
19 and testimony, she told the two of you that in the room
20 with the doctor and the child she had seen the doctor
21 physically examine the child by effectively palpating
22 its glands. Do you remember that part?
23 A. I do remember that.
24 Q. Then later, on 2nd March, once it had become clear
25 through police investigations that there was no
128
1 grey-haired male doctor on duty at any possible relevant
2 time --
3 A. Yes.
4 Q. -- that contradiction was put to her by Mr Simpson --
5 A. It was, yes.
6 Q. -- her reaction then was to say in fact she had not gone
7 into the consulting room but had remained outside --
8 perhaps surprisingly for a mother taking a sick child --
9 in the waiting room?
10 A. Yes.
11 Q. That was a change of position which was regarded,
12 I think, with some significance. Is that right?
13 A. Yes. It --
14 THE CHAIRMAN: You will remember he is in effect your
15 witness and not lead him?
16 MR EMMERSON: Yes. I was going to ask an open question to
17 him immediately following. I think this is common
18 ground in the sense it is on the documentation that that
19 was an issue that was flagged up as one of significance.
20 A. It meant an indication to us that she was a person who
21 was prepared to change her ground and change her story
22 when challenged about a particular issue, about
23 a particular fact.
24 Q. Can you elaborate for us at all on any discussions that
25 took place between you and Mr Simpson about the impact
129
1 of that particular apparent lie?
2 A. Well, I believe he -- I mean, he considered this to be
3 a blatant lie, an example of where she was prepared to
4 change her story as it suited her or as the
5 circumstances that were put to her changed.
6 At this moment, I can't remember my particular
7 conversation with ...
8 Q. Can you just explain in your own words, please, how and
9 why you reached the conclusion that the various lies you
10 concluded she had told about Pendine undermined her
11 credibility on the central issues about which she was to
12 testify?
13 A. Yes. By that time, by the time we had gone through this
14 process, it appeared to us she was a witness who was
15 prepared to lie, was prepared to change her story when
16 challenged about a particular issue, that if she was put
17 in the witness box and was subject to cross-examination,
18 as she undoubtedly would have been, there was a danger
19 that she would change her story then, that she would not
20 confine her lies, as it were, to particular aspects of
21 her evidence, but, when it suited her, would lie about
22 other matters when put in a corner, as it were, when
23 forced into a corner, and that this generally brought us
24 to the conclusion that, apart from anything else, this
25 was a witness that we could not have any trust in and
130
1 that destroyed, for us, her general credibility.
2 I haven't said this before, but it generally
3 destroyed the relationship -- the trust that you want to
4 have between prosecutor and witness
5 Q. You were asked some questions about what might have
6 happened with that state of assessment as regards the
7 preliminary enquiry and whether the case would have been
8 returned?
9 A. Yes.
10 Q. Can I ask you this: when you were making the assessment
11 of the impacts, that the lies you concluded she had told
12 would have on her credibility in relation to the main
13 issues, were you focused solely on the committal or on
14 the ultimate trial as well?
15 A. No, we would have been focused on the question --
16 I mean, the ultimate question is: is there a reasonable
17 prospect of conviction of these defendants on the basis
18 of this witness' evidence?
19 Q. A reasonable prospect of conviction at trial?
20 A. Conviction at trial. That's the test for prosecution
21 and that's the test we applied. There clearly may have
22 been difficulties at the committal and we thought about
23 that, but that, at the end of the day, the ultimate
24 question, and the question in every case, is: is there
25 a reasonable prospect of a conviction of the defendants
131
1 at -- in front of the proper Tribunal, which would have
2 been the Crown Court in this case. That's a decision
3 that's made in every case. It's a decision which is
4 reviewed from time to time when there is a change in
5 circumstances, which there clearly was in this case.
6 Q. Presumably it's a decision that can being made depending
7 on circumstances of any particular case either before or
8 after the case has been returned for trial?
9 A. It can. It is made on occasions after the case has been
10 returned for trial. Fairly unusual, but there may be
11 a change of circumstances that would require that
12 decision to be made.
13 Q. I mean, you have heard the point being put to you that,
14 at committal, for the purposes of a preliminary enquiry,
15 the magistrate is required to take the evidence at its
16 highest and effectively not to consider matters of
17 credit that might be relevant to the ultimate Tribunal
18 of fact.
19 A. Yes.
20 Q. With that consideration in mind, if a prosecutor --
21 leave this case aside -- just as a matter of principle,
22 if a prosecutor came to the view that the decisive
23 witness was a witness whose evidence no longer afforded
24 a reasonable prospect of conviction because of doubts
25 about their credibility that could not be considered at
132
1 committal --
2 A. Yes.
3 Q. -- would the fact that the case might squeeze through
4 committal because credibility was not a relevant
5 consideration make any difference to the ultimate
6 decision about whether it was right for the prosecution
7 to proceed?
8 A. It wouldn't have a -- if it was something that was going
9 to affect the trial, then the question -- the fact that
10 it might go through committal would be irrelevant if
11 there wasn't, at the end of the day, a reasonable
12 prospect of conviction at trial.
13 MR EMMERSON: Thank you.
14 Further questions from MR UNDERWOOD
15 MR UNDERWOOD: A couple of things arising out of that,
16 Mr Morrison.
17 Do I take it then, as of 18th March 2004, you
18 believed that she and her husband had falsely pleaded
19 guilty?
20 A. No, not at all.
21 Q. Did you believe, as of 18th March 2004, that a jury
22 would probably find that she and her husband had falsely
23 pleaded guilty?
24 A. No.
25 Q. Why on earth didn't you let the jury decide the case
133
1 then?
2 A. I am sorry, I find that an incredible question.
3 MR UNDERWOOD: Okay. Thank you.
4 THE CHAIRMAN: I am afraid I don't.
5 A. Well, I am sorry.
6 THE CHAIRMAN: Just help us, will you, about this?
7 I understand what you say about the relevance of Pendine
8 to the adjournment consideration.
9 A. Yes.
10 THE CHAIRMAN: When you considered in relation to her
11 credibility, did you consider what she said about
12 Pendine in the light of any other factors and, if so,
13 what?
14 A. It was certainty -- her credibility was considered in
15 the light of Pendine, in the light of the fact that she
16 had -- her sudden change of heart between 20th --
17 sorry -- between the 19th and 21st, and her easy ability
18 to say there was this medical emergency, as it were,
19 indicated a very -- that in itself seemed to tell us
20 that she had lied to us even about the child -- the
21 extent of the child's illness when she spoke to the
22 policewoman on the Sunday. These are all matters which
23 went to our consideration of her credibility.
24 THE CHAIRMAN: Are there any other factors that you took
25 into account, or is that it?
134
1 A. Well, I think her performance, as it were, at
2 consultation, her changing of her story, her changing of
3 details at consultation persuaded us that she was
4 a person who was very capable of and likely to tell
5 lies.
6 THE CHAIRMAN: Thank you very much.
7 Further questions from MR McGRORY
8 MR McGRORY: Sir, before the witness leaves, may I seek to
9 clarify one particular issue, and that is precisely what
10 happened on 2nd January in terms of what was given to
11 the magistrate and what was given to the defence?
12 Because I think the witness has given evidence in answer
13 to questions from Mr Emmerson that he thinks he may have
14 given Dr Barker's statements to the defence.
15 Now that I think is new evidence and I would like to
16 ask a very small number of supplementary questions
17 around that.
18 THE CHAIRMAN: I think I will ask Mr Morrison -- he has
19 heard what you say --
20 MR McGRORY: Yes, of course, sir.
21 THE CHAIRMAN: -- what he says about that.
22 A. I think it's quite possible that I did give the
23 statements of Dr Barker to the defence at that stage.
24 I don't think I gave them to the court.
25 THE CHAIRMAN: Thank you. Thank you. That's it.
135
1 A. Thank you.
2 (The witness withdrew)
3 MR UNDERWOOD: Mr McCarey, please.
4 Sir, I anticipate Mr McCarey's evidence is going to
5 be very short and then we are going to need a break for
6 technical reasons.
7 MR WILLIAM ALEXANDER RONALD McCAREY (sworn)
8 Questions from MR UNDERWOOD
9 MR UNDERWOOD: Good afternoon, Mr McCarey.
10 A. Good afternoon.
11 Q. My name is Underwood. I am Counsel to the Inquiry.
12 May I ask your full names, please?
13 A. It is William Alexander Ronald McCarey.
14 Q. I think you kindly signed a witness statement for us on
15 22nd July this year, which we will see at page [81907].
16 A. Yes, I did.
17 Q. Let's just make sure we are talking about the same
18 document.
19 A. Okay.
20 Q. Look at that and the next page, if you would. That is
21 it, is it?
22 A. Yes.
23 Q. Is it true?
24 A. It is, yes.
25 Q. Thank you. You refer on the second page there, [81908],
136
1 to a report you produced in the neglect of duty case,
2 which also involves the tip-off allegation.
3 A. Yes.
4 Q. Can I take you to that, in particular picking it up at
5 page [19316]? If we take paragraph 279 onwards, you
6 say:
7 "Similarly in relation to the allegation by
8 Witness A that Reserve Constable Atkinson may have been
9 in touch with Allister Hanvey in order to tell him to
10 get rid of the clothes which he had been wearing on this
11 occasion and that he had been keeping him informed of
12 development in the police investigation, I do not
13 consider that the evidence is sufficient to warrant
14 prosecution.
15 "It might be thought highly suspicious that there
16 was a telephone call from Atkinson's phone to Hanvey's
17 home at 8.37 am on 27th April, the day of these
18 incidents and a further such call on 2nd May 1997.
19 "Witness statements have, however, been recorded
20 from Mr and Mrs McKee and from Mrs Atkinson which give
21 an innocent explanation for these telephone calls.
22 "There is no evidence in relation to those matters."
23 Do I take it from that that nothing stood out for
24 you on the neglect file that called for further
25 investigation?
137
1 A. Yes. That's exactly right.
2 Q. Is this fair, that if something had stood out from the
3 neglect file that called for further investigation, you
4 would have considered directing it?
5 A. I would.
6 Q. Thank you. It is apparent, of course, from your
7 consideration of the neglect file that there had been
8 these allegations against Mr Atkinson as at the date he
9 gave evidence against Hobson. Is that true?
10 A. Sorry. Could you ask me that again, please?
11 Q. Yes, of course.
12 It would have been apparent to you, would it, from
13 your consideration of the neglect file that the tip-off
14 allegation was hanging over Mr Atkinson as at the date
15 he gave evidence?
16 A. Yes.
17 Q. Did that trouble you?
18 A. I am not sure that it troubled me. We were concerned
19 obviously to get to the truth and to find whatever
20 evidence might become available, and consequently we
21 decided to wait until the conclusion of the trial of
22 Hobson in case something might arise at that trial
23 before we took the final decision.
24 Q. I follow. You took the view that something might come
25 out of the Hobson trial which may inform your
138
1 consideration of the neglect?
2 A. Yes.
3 Q. Was any consideration given, as far as you were aware,
4 to the question of whether Mr Atkinson could properly be
5 advanced as a witness of truth, given the tip-off
6 allegation hanging over him?
7 A. I certainly didn't give that any consideration because
8 I was not dealing with the murder file.
9 Q. Can we have a look at [18122], please? It is a note we
10 are told of 5th August 1997. R v Lunt, Hanvey, Hobson,
11 Bridgett, Forbes and Robinson. That's the murder.
12 A. Yes.
13 Q. "The Director has asked that this case should be drawn
14 to his attention before final directions are issued. In
15 considering this case and any associated complaint file,
16 the directing officer is referred to the case of
17 R v Dytham."
18 A. Yes.
19 Q. We are told that that note found its way on to the
20 murder file. Can you recall whether it was on the
21 neglect file too?
22 A. I don't recall ever having seen that note before.
23 Q. Thank you. That's all I seek to ask you. Thank you
24 very much.
25 A. Thank you very much.
139
1 MR UNDERWOOD: It may be we have some more questions from
2 others.
3 Questions from MR EMMERSON
4 MR EMMERSON: Did you consider the case of Dytham when you
5 were making your decisions?
6 A. I did, yes.
7 Q. Thank you. Finally, as regards the decisions
8 themselves, can I just get the structure of the
9 decision-making process clear --
10 A. Yes.
11 Q. -- with the neglect file? Am I right in thinking that
12 Mr Junkin requested the file be forwarded to him through
13 Alan White, who was then Senior Assistant Director? Is
14 that correct?
15 A. That's correct. In fact, in the first instance it went
16 through Raymond Kitson to Mr Junkin, who sent it back
17 and asked that it be referred through Alan White, who
18 was a Senior Assistant Director.
19 Q. So though you were effectively the case officer and
20 responsible for what was a very lengthy written
21 memorandum about the merits of prosecution in both the
22 neglect allegation and the allegation against Atkinson,
23 your memorandum went, first of all to Mr Kitson?
24 A. Yes.
25 Q. Then it went to Mr Junkin?
140
1 A. Yes.
2 Q. Then back from Mr Junkin to Mr White?
3 A. Yes.
4 Q. And then back to Mr Junkin as the final decision-maker?
5 A. Yes.
6 MR EMMERSON: Thank you.
7 MR UNDERWOOD: Thank you very much. You are free to go.
8 (The witness withdrew)
9 THE CHAIRMAN: You want us to break now, do you?
10 MR UNDERWOOD: Yes.
11 THE CHAIRMAN: How long is needed?
12 MR UNDERWOOD: I think fifteen minutes.
13 THE CHAIRMAN: Very well.
14 (3.05 pm)
15 (A short break)
16 (3.20 pm)
17 (Hearing in camera)
18 (3.30 pm)
19 MR UNDERWOOD: That concludes the evidence for today.
20 Tomorrow we have Mr McGinty first thing at 10 o'clock
21 I gather, and then Sir Alasdair Fraser. I am hoping it
22 will not be a very long day with only those two
23 witnesses.
24 THE CHAIRMAN: Right. Then a 9.30 am start? Sorry,
25 a 10.30 am start?
141
1 MR UNDERWOOD: I am told -- I think it is for the
2 convenience of Mr McGinty -- that 10 o'clock has been
3 slotted in. So I would urge for 10 o'clock.
4 THE CHAIRMAN: 10 o'clock.
5 (3.35 pm)
6 (The hearing adjourned until 10.00 am tomorrow morning)
7 --oo0oo--
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1 I N D E X
2
3
MR WILLIAM JUNKIN (sworn) ........................ 1
4 Questions from MR UNDERWOOD ............... 1
Questions from MR EMMERSON ................ 5
5
MR ROBERT IVOR MOSS MORRISON (sworn) ............. 12
6 Questions from MR UNDERWOOD ............... 12
Questions from MR McGRORY ................. 57
7 Questions from MR MALLON .................. 94
Questions from MR BERRY ................... 106
8 Questions from MR McCOMB .................. 114
Questions from MR EMMERSON ................ 114
9 Further questions from MR UNDERWOOD ....... 133
Further questions from MR McGRORY ......... 135
10
MR WILLIAM ALEXANDER RONALD McCAREY .............. 136
11 (sworn)
Questions from MR UNDERWOOD ............... 136
12 Questions from MR EMMERSON ................ 140
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