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Transcript (morning and afternoon)
Hearing: 7th December 2009, day 70
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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 Monday, 7th December 2009
commencing at 10.30 am
Day 70
1 Monday, 7th December 2009
2 (10.30 am)
3 (Proceedings delayed)
4 (10.45 am)
5 THE CHAIRMAN: Mr Underwood, the Panel would like to thank
6 all the parties for giving their submissions before to
7 us meet the deadline.
8 Mr McGrory, I have read what you have written about
9 how you connect allegations against individuals with the
10 working out of our terms of reference. It will be for
11 you, when you address us, to show what the real
12 connection is. You have asked for a ruling before we
13 begin our hearings. There will be no ruling, for this
14 reason. To give a ruling would mean anticipating our
15 decision. We have not made a decision yet.
16 Can I just give you one example to see what does lie
17 on one side of the line and what doesn't? Suppose if
18 A has done something that is relevant because A has done
19 it to our terms of reference, if B has done something
20 which makes it more likely that A did what he did, but
21 what B has done is not in itself relevant to our terms
22 of reference, it may be relevant for us to consider
23 whether B did that, and if we find that B did it, to
24 take that in relation to our assessment of A's position.
25 It doesn't necessarily follow that B should be named in
1
1 our report, because what B has done is not taken on its
2 own relevant to the terms of our reference. It has
3 relevance only to what A has done. It will be important
4 to us to remain faithfully within our terms of
5 reference.
6 So, as I say, you will have to think carefully about
7 how you do connect various allegations with our terms of
8 reference
9 MR McGRORY: Yes.
10 THE CHAIRMAN: You must say, reading what you have written,
11 the connection doesn't always immediately spring to
12 mind. We shall not stop any submissions, because all
13 these allegations have already been made in public, so
14 they are in the public domain. That's not to say,
15 though, that when we come to prepare our report,
16 allegations which do not go to the working out of our
17 terms of reference will be included with a name attached
18 to them.
19 Mr Green, we all read your submissions. I am bound
20 to say they sounded much more like a plea that Mr Hobson
21 was wrongly convicted. We obviously will consider
22 anything which is relevant to the working out of our
23 terms of reference and whether, in the case of one
24 officer you name, he was telling the truth or not, but
25 this Inquiry is not a vehicle which can be treated as
2
1 an appeal against conviction. Mr Hobson had his trial.
2 There was a reasoned judgment. He appealed, and his
3 appeal was dismissed, and there would have been
4 a reasoned judgment for dismissing that appeal. So we
5 are not in the slightest degree concerned with whether
6 or not he was rightly or wrongly convicted. I am sure
7 you realise that. It may be that you will want, in some
8 ways, to moderate some of the things you say
9 MR GREEN: Moderate and modify. We intend to do that,
10 Mr Chairman.
11 THE CHAIRMAN: Thank you.
12 Now, I think it is for to you begin, isn't,
13 Mr McGrory?
14 MR McGRORY: I believe so. I have an unenviable task, sir.
15 Indeed, sir, I want to say something before I go
16 into any substantive submissions just about the way in
17 which this Inquiry has been conducted.
18 If I may say so, sir, we have, I think, sat for some
19 67, 68 days. We have heard from almost 150 witnesses.
20 Another 27 or so have been read. We have studied, all
21 of us, tens of thousands of documents. I think the core
22 bundle runs to something like 80,000 pages or something,
23 and that does not include the interview transcripts. We
24 have been here for almost one calendar year. I, for
25 one, and on behalf of the Robert Hamill family and on
3
1 behalf of my own team, would like to commend the
2 monumental effort of Miss Judy Kemish and her assistant,
3 Nicola Enston, and her team of counsel led by
4 Mr Underwood in the presentation and formulation of that
5 material, which has been of very significant assistance
6 to us.
7 Of course, over the months, there may have been
8 perceived gaps in the material and representations have
9 been made, but never have any of those representations
10 fallen on deaf ears in terms of engagement with the
11 Inquiry. Certainly we are entirely satisfied that no
12 stone has been left unturned in the search for material
13 that will assist both the Inquiry Panel and all of those
14 of us who are engaged in this in our enormous task.
15 I would like to thank them all for their assistance,
16 every one of them
17 THE CHAIRMAN: I am sure they will be grateful to hear your
18 words.
19 Closing submissions by MR McGRORY
20 MR McGRORY: The Inquiry opened in May 2005, having been
21 appointed some months before that. The background to
22 this Inquiry concerns the very controversial allegations
23 that the police, who were charged with public order
24 duties on the night in which the events broke out that
25 led to Robert Hamill's death, failed Robert Hamill and
4
1 his family in significant ways.
2 There is controversy that they failed to get out of
3 the Land Rover at all. There is controversy that, when
4 they got out of the Land Rover, they didn't do enough.
5 There is controversy that the police investigation was
6 flawed in a number of respects which I will address in
7 some detail. There is controversy that one of the
8 policemen in the Land Rover was himself deeply corrupt,
9 in that he tipped off one of the murder suspects, who
10 was known to him, that he should take certain steps to
11 avoid detection. There is controversy that the
12 investigation into his actions was flawed in certain
13 respects, which we will come to in due course. There is
14 controversy in general, just that the entire prosecution
15 may not have been handled in the way perhaps it should
16 have been to bring about convictions.
17 That controversy is not just controversy about poor
18 policing in any formal respect, it is controversy that
19 goes to the very heart of some of the difficulties we
20 have in this jurisdiction in terms of policing, because
21 policing here is a very political matter in this
22 society, as it is perhaps in any society, but we have
23 a situation in this country, and in this part of this
24 island, where we have very divided political
25 allegiances, and where the police force which polices
5
1 the community here, for better or for worse, and rightly
2 or wrongly, has been seen perhaps by one section of the
3 community as belonging to the other section, as being
4 perhaps an enforcing police force of a political reality
5 which is not accepted by that part of the community.
6 For the other part of the community, the larger part
7 of the community, because of the conflict and because of
8 the engagement of the police force in the front line of
9 the conflict here, they perhaps might have been seen
10 over the years as their police force, that really they
11 should police them, and, when it comes to conflict with
12 the other community, they should take one side over the
13 other.
14 So for those reasons, the events which occurred on
15 the night of 27th April 1997 assumed a very significant
16 importance. They assumed an importance that has led to
17 the Hamill family engaging personally with the
18 Prime Minister of the United Kingdom, with the Taoiseach
19 of the Republic of Ireland. The case has been discussed
20 on the floor of the House of Congress in the United
21 States. It has been raised by a President of the United
22 States with the Prime Minister of the United Kingdom.
23 It has become central to the political negotiations
24 as to how this community can go forward in terms of
25 policing, and, indeed, this Inquiry emerged from the
6
1 appointment of Judge Cory, which in turn emerged from
2 the political negotiations at Weston Park as to how
3 matters could move forward, and it was Judge Cory who
4 took the view that there were significant enough
5 questions raised from his review of the facts of the
6 case to merit this Inquiry, and here we are.
7 Above all, I would like to say to you, members of
8 the Panel that, none of us can lose sight of the fact
9 that, while we are quite correctly engaged with the
10 terms of reference, and we must work within them, that
11 we are concerned with the loss of a human life and the
12 loss of that human life is that of Robert Hamill, who is
13 a son of Mrs Hamill, who is present today, and his four
14 surviving brothers and five sisters. The Hamill family
15 have taken a deep interest in this Inquiry. I don't
16 think there has been a day that we have been here where
17 the family has not been personally represented in the
18 chamber. Of course, there have been many days when all
19 or a great number of the family have been here.
20 The terms of reference are very clear, in that there
21 is an obligation on this Inquiry to investigate the
22 events surrounding Robert Hamill's death with a view to
23 establishing whether or not there is any wrongful act or
24 omission by the RUC that facilitated his death or
25 obstructed the investigation of it, or if there were any
7
1 attempts to do so, and if there were, if either of those
2 were intentional or negligent.
3 The Panel is at liberty to make recommendations and
4 it is also at liberty to look at groups outside of the
5 RUC who were associated with the investigation or who
6 might have shaped the investigation in some way or
7 another. The significant groups who would fall into
8 that category would include the Forensic Science
9 Laboratory of Northern Ireland, the Independent
10 Commission for Police Complaints and the office of the
11 Director of Public Prosecutions, and perhaps some of the
12 medical practitioners, who were concerned with treating
13 Robert Hamill, who were concerned with perhaps the
14 pathology and investigation from a medical point of view
15 as to what happened to cause his death.
16 We would perhaps look at each of those in turn to
17 see if any of their conduct affected the shape of the
18 investigation. As the Chairman has rightly pointed out,
19 when it comes to looking at any of those groups, we must
20 be quite specific as to how the investigation might or
21 might not have been shaped in any particular way.
22 I would like perhaps to begin in looking at the
23 evidence with the two very key statements of
24 Tracey Clarke and Timothy Jameson, because, in our
25 submission, the statement of Tracey Clarke of
8
1 10th May 1997 is crucial to the deliberations of this
2 Inquiry, because within that statement she makes two
3 allegations which go to the heart of the terms of
4 reference.
5 The statement begins at [17372], and at [17329],
6 about halfway down the page, she says:
7 "I remember Atkinson's name coming up and Allister
8 said that Atkinson had been very good to him, because on
9 the Sunday morning after the incident in the town centre
10 he rang him at about 8.00 am and told him to get rid of
11 the clothes he was wearing the previous night. Since
12 then, Allister has contacted me on numerous occasions
13 and he keeps asking me what I have said to the police.
14 He has also told me that Atkinson was ringing him every
15 day to keep him up-to-date with the police
16 investigation."
17 Now, this is what amounts to an allegation from this
18 young woman made in a statement on 10th May 1997, only
19 days after Robert Hamill had died, that, in her
20 connection with Allister Hanvey and in her conversations
21 with him in the immediate aftermath of the incident, he
22 told her that Reserve Constable Atkinson had been
23 keeping him right and had phoned him the following
24 morning and gave a time of 8.00 am and he advised him
25 what to do.
9
1 Now, that is an indication or an allegation of
2 a very clear and specific criminal offence on the part
3 of one of the policemen in the Land Rover, and the
4 criminal offence that is revealed is that of assisting
5 offenders, because, by this point, Robert Hamill had
6 died and there was a murder enquiry ongoing.
7 So here we have it in a statement as early as
8 10th May 1997 information coming into the police system
9 that one of the policemen in the Land Rover had been
10 guilty of this offence.
11 Now we accept, of course, that this is not
12 conclusive evidence, but it merited very considerable
13 investigation. But Tracey Clarke also within their
14 statement had said in the previous page -- we don't need
15 to get it up. It is one line in the middle of the
16 previous page, where she says:
17 "As far as I could see, the police were not doing
18 much to stop what was happening."
19 She also made the allegation personally that it was
20 her observation that the police didn't seem to be doing
21 much to stop what was happening.
22 Now, this is the beginning of -- I accept that there
23 were by now rumblings and allegations from within the
24 Nationalist community that the police had not done much
25 to help Robert Hamill, but here we had evidence coming
10
1 into the police system a number of days later, from one
2 of the Protestant witnesses to the incident, which might
3 have given some support to those general allegations
4 which have been made.
5 So it is, therefore, in our submission, crucial to
6 this Inquiry that very careful analysis of the
7 Tracey Clarke statement of 10th May be given.
8 Now, in order to do so , in my respectful
9 submission, the Panel has to look at what else she said,
10 because in order to weigh up whether or not she is
11 telling the truth about those things, it has to consider
12 whether or not she is telling the truth about perhaps
13 the other things that she said.
14 Of course, in her statement she also discloses her
15 observations of individuals that she knew and what she
16 says she saw them do to Robert Hamill.
17 Remaining with page [17328], in the middle of the
18 page she says about eight lines down:
19 "These persons were kicking the person on the ground
20 around the head and body. I saw them jump on the person
21 on the ground. They jumped all over him and kicked him.
22 I saw the persons who were doing this and I can identify
23 them as Dean Forbes, Allister Hanvey, Stacey Bridgett,
24 'Muck' and Rory Robinson. The other person lying near
25 Eastwoods was being helped by Michelle Jamieson, but
11
1 I saw persons run up and kick him around the head and
2 body and Michelle was telling them to stop."
3 She then says she saw a number of policemen behind
4 the crowd who were attacking the two persons lying on
5 the ground.
6 Now, she names these five individuals as being
7 involved in the murderous attack on Robert Hamill. In
8 my respectful submission then, it is within the formula
9 that has been outlined by the Chairman this morning to
10 examine whether or not she is telling the truth about
11 those people, because what she says now to this Inquiry
12 is that she made it all up, and she made it all up
13 basically to get back at one of them, which was
14 Allister Hanvey.
15 So the obvious questions arises as well, if that was
16 so, she only needed to make something up about Hanvey,
17 but she didn't. She seems to have made something up
18 about other people.
19 So in determining whether or not what she says now
20 is truthful, that she made it all up, the Inquiry is
21 entitled, as it has done, to hear the evidence about
22 what did happen and to take a view as to what any of
23 those individuals did or did not do that might tally
24 with what she says they did.
25 So in my respectful submission, it is open to this
12
1 Inquiry to make a finding as to what any one of these
2 individuals did and to name them as such in order to
3 assist it in its examination of determining whether or
4 not Tracey Clarke is telling the truth in general
5 THE CHAIRMAN: Do you see, Mr McGrory, a difference between
6 naming them to ourselves, but only naming them in our
7 report if their names are relevant to the working out of
8 the terms of reference?
9 MR McGRORY: I think perhaps --
10 THE CHAIRMAN: We are back to the example I gave you
11 earlier.
12 MR McGRORY: Yes, and I am very conscious of that, sir.
13 Surely those individuals have come to the Inquiry and
14 have given their evidence, have not sought anonymity --
15 THE CHAIRMAN: That's neither here nor there.
16 MR McGRORY: Well, I mean, if --
17 THE CHAIRMAN: Forgive me. Anonymity is not the test of
18 whether what someone has or has not done falls within
19 our terms of reference.
20 MR McGRORY: Well, I mean, in order to engage in the
21 exercise, in my respectful submission, of testing
22 whether or not Tracey Clarke is telling the truth about
23 those individuals, they have to be identified in some
24 way or another.
25 THE CHAIRMAN: You are missing my point. We may know their
13
1 names and we may bear in mind in our deliberations their
2 names. If we come to the conclusion that something is
3 proved, we then, before we name them, have to decide
4 whether what they did, as such, assists us in our terms
5 of reference. That's not quite the same thing.
6 MR McGRORY: Well, in order to do that, sir, it would seem
7 to me that the Inquiry would then have to give them
8 ciphers, in order to --
9 THE CHAIRMAN: No, we don't even have to name them, it seems
10 to me. Anyway, you will no doubt want to deal with this
11 and you deal with it in your own time, but I merely
12 pause to say what is a matter we shall have to consider
13 without saying what our conclusion about it may be.
14 MR McGRORY: Yes. What I propose to do, of course, is
15 perhaps visit the evidence in respect of each of these
16 individuals. In doing so, however, the Inquiry is going
17 to have to examine the evidence about each of those
18 individuals; for example, Allister Hanvey.
19 Tracey Clarke says she saw him as one of the group
20 jumping on Robert Hamill's head and kicking him.
21 Now the Inquiry is going to have to say, "Is she
22 telling the truth about this individual? What does
23 anybody else say about this individual that might
24 support the suggestion that she is telling the truth
25 about this individual?".
14
1 Now, in order to analyse that evidence and to make
2 sense of it, it has to do so in the name of
3 Allister Hanvey, because, in other words, without giving
4 him a cipher, then it becomes impossible to track the
5 course of the evidence. So it is as a matter of
6 necessity in the analysis of Tracey Clarke's evidence
7 that these individuals become involved and involved in
8 their own names.
9 I mean, I don't stand here today to seek to make
10 allegations against these individuals for any other
11 reason than that it is Tracey Clarke who raises them,
12 and following on her evidence a number of arrests were
13 made and people remained in custody for quite some time
14 before they were eventually released when she decided
15 not to give evidence.
16 It is my submission that the report would be very
17 limited in its scope if it were not to engage in some
18 detail as to what each of these individuals did. That
19 is something you may wish to consider in due course, but
20 it is my submission that any analysis of Tracey Clarke's
21 statement in itself necessitates an examination of what
22 these individuals did
23 THE CHAIRMAN: I have not suggested it does not necessitate
24 an examination of what they did. The only question
25 I have raised is, depending on what our findings are,
15
1 whether their names should be included in our report.
2 In the case of Hanvey, that's a different position.
3 MR McGRORY: Yes. Perhaps I will go through them
4 individually. Before I do that, I would also like to
5 refer you to the statement of Timothy Jameson, which was
6 made on the same day.
7 Now, Timothy Jameson also names quite a number of
8 those people whom Tracey Clarke named. His statement
9 begins at [17653]. At [17654] he talks about, on the
10 fourth line down:
11 "There were fellows punching each other and
12 I observed a fellow with an Umbro sweater ... fighting
13 with another fellow. This fellow I know to see ... and
14 is called Mark. He is also called 'Muck'. I know this
15 fellow to see about town. Mark has very short brown
16 hair, goatee beard and is overweight. I think he was
17 wearing a black leather jacket. I was standing four to
18 five feet from Mark. The street lights were on. Mark
19 was punching this fellow in the face with his fist.
20 That's the fellow with Umbro sweater on. This fellow
21 was fighting back, but Mark was getting the better of
22 him. Mark knocked this fellow to the ground. He was
23 lying in the middle of the road opposite the bakery on
24 the corner number 7."
25 He goes on to describe how Mark began fighting with
16
1 another person. He also says at the bottom of the
2 page that Rory Robinson was fighting.
3 Then he talks about Hanvey on the next page at
4 [17655]:
5 "I saw Allister Hanvey kick and punch this fellow
6 who was lying on the ground. This fellow was lying in
7 the middle of the street opposite Eastwoods Clothing.
8 I was about 9 feet from him. The fellow was just lying
9 there with his hands at his side. He didn't move. This
10 fellow was wearing a black coloured jacket. I think he
11 had black hair. I saw Allister Hanvey kick this fellow
12 three to four times while on the ground."
13 He talks about somebody called Fonzy:
14 "... kick the fellow lying on the ground.
15 At the bottom of the page he says:
16 "I saw Dean Forbes punch the fellow in the face and
17 run off towards me."
18 He also mentions in the final page that he saw:
19 "... Tracey (sic) Bridgett. He had a bust nose."
20 He also mentions all of the individuals named by
21 Tracey Clarke. So the question must be, if
22 Tracey Clarke is mentioning these individuals for the
23 purpose of getting back at Allister Hanvey, then how
24 come there is another chap, young Timothy Jameson, who
25 sees the same people doing similar things and engaged in
17
1 the fighting, when many of them say they were not
2 engaged in the fighting at all. We will come to that in
3 due course.
4 In my respectful submission, there is an example of
5 how the first point of analysing Tracey Clarke's
6 statement is Timothy Jameson's and the same individuals
7 appear. Therefore, it is open to this Inquiry to say,
8 "Well, Tracey Clarke now tells us that she lied about
9 those people. What is the likelihood of another
10 individual on the same day, unbeknownst to her, making
11 similar allegations against the same people if they were
12 not involved at all, as they say they weren't?"
13 So that, in turn, will go to supporting the question
14 as to whether or not she was telling the truth on
15 10th May 1997. That in turn, in my respectful
16 submission, raises the question as to what each of them
17 was doing and what is the other evidence.
18 I accept entirely what you say, sir, that the
19 Inquiry must look at the other evidence as well to
20 determine whether or not it needs to name individuals in
21 its analysis. It would perhaps be feasible to answer
22 the question how could Tracey Clarke possibly have named
23 individuals in a lying way and, unbeknownst to her,
24 Timothy Jameson also named the same individuals without
25 perhaps revealing necessarily their identities.
18
1 I think there is a lot more to it than that, and
2 there is a considerable body of evidence from other
3 individuals who were present, and from police officers,
4 as to what those individuals might or might not have
5 been doing.
6 Of course, there are the overall issues that the
7 police arrested these people and charged them with the
8 murder of Robert Hamill on the strength of the evidence
9 of Tracey Clarke and Timothy Jameson and sought to mount
10 a prosecution, and it wasn't until October of 1997, when
11 those two individuals indicated, for one reason or
12 another, that they would not give evidence, that the
13 prosecutions were withdrawn. So the police believed
14 these statements, as did the Prosecution Service, and
15 mounted a prosecution on them.
16 Now, Allister Hanvey is the best person to start
17 with in terms of analysing what he did or didn't do,
18 because he is central to the very serious allegation of
19 whether or not Reserve Constable Atkinson was engaged in
20 the unlawful activity of tipping him off. That
21 allegation in itself is central to the terms of
22 reference. In our respectful submission, it would be
23 very difficult to conduct any meaningful analysis of
24 that allegation without examining in close detail the
25 conduct of Allister Hanvey
19
1 THE CHAIRMAN: I have not suggested there is any question
2 but that Hanvey's name is something which might very
3 well need to be referred to in our terms of reference.
4 MR McGRORY: Indeed, sir. In doing so, the other evidence,
5 apart from that which was said by Tracey Clarke and that
6 which was said by Timothy Jameson, includes the
7 following: an issue as to what he was wearing that
8 night, for example, in terms of a jacket.
9 He told the police that he was wearing a black CAT
10 jacket when he was interviewed on 10th May. There is
11 evidence to the contrary. Jonathan Wright made
12 a number of statements, and we may need to look at these
13 a little bit later, but he said he wore -- I think the
14 principal statement in our submission is that of
15 15th May. He said that Hanvey was wearing a tracksuit
16 top with a grey zip-up, orange stripes on both arms to
17 the elbows, very far from a black CAT jacket.
18 Reserve Constable Warnock said that Hanvey was
19 wearing a dark-coloured baseball type jacket with grey
20 sleeves.
21 Now, that may not exactly be equivalent to
22 a tracksuit top with orange stripes, but still it's
23 a baseball-type jacket and it has grey sleeves. It is
24 not that big of a distance away from it.
25 Then there is James Murray, Tracey Clarke's
20
1 father-in-law, who made a statement on
2 16th November 2000. He said that Tracey had complained
3 that Allister Hanvey had burnt a jacket that she had
4 bought him. He said it was a silver anorak material,
5 without lining, that had orange stripes and it looked
6 too small for him, which in my respectful submission
7 would fit the description of a baseball-type jacket,
8 a short, jerkin-type jacket.
9 Of course, no jacket is ever found of this
10 description. Hanvey denies that he ever had one.
11 Julian Lyons, who was the owner of the shop called
12 Paranoid in Portadown, he said he sold a Daniel Poole
13 jacket and had no recollection of this other jacket, but
14 this Inquiry unearthed a statement from a man called
15 Steven Hughes, who was a designer of such jackets in
16 a place in London called Skanx. He confirmed that he
17 made a jacket of this description and that he had
18 supplied it to Paranoid.
19 So, in our respectful submission, in examining
20 Allister Hanvey there is a body of evidence which would
21 suggest that he has lied about what he was wearing, but
22 the context of that lie has to be seen in the allegation
23 that comes from Tracey Clarke, that he had told her that
24 he, in fact, had been tipped off to destroy his
25 clothing, or "get rid of the clothing" I think were the
21
1 words. There is the evidence from her father-in-law
2 that he, in fact, had burned it or that's what he
3 thought.
4 If she was making that up, this evidence concerning
5 the existence of a jacket fitting the description of
6 that which he was seen wearing, which is very
7 distinctive in nature, and which has disappeared, and in
8 the context of his denial would support the suggestion
9 that, in fact, maybe Allister Hanvey did do something in
10 terms of destroying clothing, which he sought later to
11 conceal.
12 P89 made a statement, a bit belatedly, actually.
13 I think it is 2000 he makes the statement, but he said
14 that he observed Allister Hanvey in the crowd and that
15 he was hostile. Atkinson said to him to watch him, that
16 this guy was an expert in martial arts.
17 Reserve Constable Murphy saw Hanvey in the crowd
18 when it was being pushed back. Constable Warnock said
19 he saw Hanvey. He was prominent at the front of the
20 crowd. Yet Hanvey denied that he was involved in the
21 incident at all. In fact, he said he was trying to help
22 out and that he was trying to help a policeman of the
23 description of Reserve Constable Atkinson.
24 Hanvey said that he had gone to his uncle's and that
25 he was picked up at 9.45 am. Yet, his cash card was
22
1 used at 8.46 am and the account was subsequently closed
2 on 6th May, an account that had been open for
3 a number of years.
4 Also there is evidence that Hanvey is lying in his
5 account in terms of the party. There was a party at
6 Tracy McAlpine's house. Hanvey said he was not there.
7 Again, he said he was at his uncle's, but he was seen at
8 the party by Kelly Lavery, Tracy Newell, Iain Carville,
9 Stephen Bloomer and Tracey Clarke. So there is another
10 basis upon which we suggest Allister Hanvey has lied to
11 the police in his account.
12
13 Now, Mr Hobson is another of the individuals --
14 THE CHAIRMAN: When you point out to these matters, are
15 relying on them as showing that Tracey Clarke was
16 telling the truth? Is that their relevance?
17 MR McGRORY: Yes, that is their relevance, sir.
18 THE CHAIRMAN: Because, of course, they are not alibis for
19 the time of the attack.
20 MR McGRORY: Exactly. Well, the problem with Hanvey, for
21 example, is that he told the police that he was not
22 involved in the fighting at all.
23 THE CHAIRMAN: I know that, but they are not alibis which
24 cover the time of the attack, are they?
25 MR McGRORY: No.
23
1 THE CHAIRMAN: That's why I put the question to you: are you
2 relying upon them as helping to show that Tracey Clarke
3 was telling the truth?
4 MR McGRORY: Yes.
5 THE CHAIRMAN: That's their relevance?
6 MR McGRORY: Indeed it is, sir.
7 THE CHAIRMAN: Thank you.
8 MR McGRORY: Now Mr Hobson has accepted that he was known as
9 "Muck". He has also accepted to Mr Underwood that he
10 fitted the description of the chap with the goatee beard
11 and so forth. So, in my respectful submission, there is
12 no question but that, when Tracey Clarke was referring
13 to her observation of "Muck", she was referring to
14 Hobson.
15 Now he denies he was involved at all and says that
16 he sat on the wall with Jonathan Wright.
17 Now Jonathan Wright made a number of statements. In
18 our respectful submission he is a third witness whom we
19 would class in a similar category to Tracey Clarke and
20 Timothy Jameson. He made a statement on 11th May, which
21 basically said that he had seen nothing. He said he was
22 in the company of Hobson, who was his friend, but on
23 15th May he made another statement, in which he said
24 that Hobson had gone on down into the crowd and that he
25 had observed Hobson's hand going in.
24
1 Then on 17th October he attended a consultation with
2 Gordon Kerr, senior counsel for the prosecution. He
3 maintained his statement of 15th May by and large, but
4 so far as Hobson was concerned, he said he had observed
5 him pulling people out of the crowd.
6 Then he made another statement, a withdrawal, on
7 15th March, in which he sought to deny what he had said
8 on 15th May.
9 Now, there was a sequence of events in or about the
10 17th October consultation which Jonathan Wright attended
11 with Gordon Kerr in terms of contact between the prison
12 and Jonathan Wright himself. Jonathan Wright has said
13 in evidence there were only two people who could ever
14 have phoned him. I think the other was Stacey Bridgett.
15 He has accepted that Hobson was his friend, but on
16 17th October, the day he was in consultation with
17 Gordon Kerr, there were four short calls to his home
18 from the prison, all around the time of 6 o'clock, and
19 then there was a further longer call of 11 minutes the
20 following morning.
21 Now, we put to Jonathan Wright that, in fact, what
22 was happening on this occasion was that Hobson was
23 desperate to find out how things had gone at the
24 consultation, because Hobson would have been aware at
25 this point that Jonathan Wright had put him in the
25
1 frame.
2 Then on 13th March --
3 THE CHAIRMAN: So you submit evidence should lead to the
4 inference that it was Hobson who made those phone calls?
5 MR McGRORY: Yes, that is my submission, sir. The
6 coincidence is the date of the consultation and the
7 number of calls. If Stacey Bridgett did ring him from
8 time to time, it is unlikely that it would have been him
9 ringing four times on the date of the consultation,
10 because there is no serious allegation made by Wright
11 against Bridgett.
12 Also of significance is the date of the withdrawal,
13 which is March 13th, which came four days before
14 Richard Monteith, who was acting for Hobson at that
15 time, wrote and asked for a number of witnesses to be
16 called to give evidence at a preliminary Inquiry which
17 was listed in April.
18 So, in our respectful submission, Hobson almost
19 certainly made Jonathan Wright very aware that he was
20 upset about what Wright had said to the police on
21 15th May, and that he was going to be cross-examined
22 about it at the preliminary Inquiry if he were to stand
23 over 15th May statement
24 THE CHAIRMAN: Just pause there, please.
25 MR McGRORY: Sorry, sir.
26
1 THE CHAIRMAN: Yes.
2 MR McGRORY: So in our respectful submission, an inference
3 can be drawn that Hobson was very deeply concerned about
4 what Jonathan Wright would say and that the withdrawal
5 by Jonathan Wright of his 15th May statement was for the
6 very purpose of keeping Hobson right, because he
7 realised he had contradicted Hobson and had put him in
8 the crowd when Hobson said he was not in the crowd.
9 THE CHAIRMAN: You put this forward as a matter of
10 inference, not merely speculation?
11 MR McGRORY: It is our submission that it is inference, sir,
12 a reasonable inference.
13 Stacey Bridgett is another person who is implicated
14 by Tracey Clarke in her statement. Of course, Bridgett
15 and Forbes are also personalities who are very relevant
16 to the question of whether or not the police acted
17 speedily and quickly enough once they had been warned by
18 Thomas Mallon that there were Catholics coming down
19 Thomas Street.
20 I will come to that in a little more detail later,
21 but one of the reasons why I respectfully submit that
22 the Inquiry must look at the conduct of Bridgett and
23 Forbes is because they have been identified as talking
24 to the police officers at the time when we will be
25 submitting the attack started on Robert Hamill.
27
1 Jonathan Wright did make an allegation against
2 Bridgett, which was that he had been trading punches, in
3 his 15th May statement. Constable A said she saw
4 Bridgett with Forbes when she was arresting Lunt in the
5 crowd, and she just knew he was being aggressive.
6 Constable Cooke saw Bridgett in the front of the crowd
7 and said that his nose was bleeding.
8 Reserve Constable Cornett said at the point when the man
9 came and pulled Neill out of the Land Rover, Bridgett
10 said, "Don't get out", and ran off. He claims he was
11 assaulted at the rear of the Land Rover and that he made
12 his way up to Dorothy Perkins and watched everything
13 from a distance.
14 Now, of course, we have the forensic evidence that
15 there was a blood spot on Robert Hamill's trousers the
16 size of a penny, so a significant forensic finding, that
17 matched Bridgett's blood. Bridgett has accepted he was
18 bleeding. He said he had a nosebleed. It may have been
19 related to the fact that he was struck to the rear of
20 the Land Rover.
21 Constable Silcock said about him that there was
22 a woman in cream who said to Silcock that, "That man",
23 pointing towards a fellow who answered to the name of
24 Bridgett, "was involved in the incident of kicking
25 Robert Hamill", and that his eyes were full of
28
1 excitement. He said that evidence to the Inquiry during
2 the course of the interview, that he had never seen
3 anybody in this condition before.
4 So, in our respectful submission, the Inquiry is
5 entitled to draw the inference from the body of evidence
6 that Bridgett was behaving aggressively that night, that
7 he was in the crowd, in considering whether or not
8 Tracey Clarke was telling the truth about him, whereas
9 he says he watched it all from a safe distance of
10 Dorothy Perkins.
11 Of course, his friend Forbes, he said he observed
12 everything from the war memorial, but Constable A had
13 observed him with Bridgett in the hostile crowd. She
14 said they were a couple of feet from the bodies. She
15 gives an account of contact with Stacey Bridgett, whom
16 she names by his first name.
17 Linda Boyle, of course, in relation to Forbes, gives
18 very telling evidence, we submit, in respect of
19 an attempt by Forbes to create an alibi for himself in
20 terms of the clothing he was wearing. She says that
21 Forbes tried to get her to get Jill Ritchie to say he
22 was wearing black jeans. We know that Constable A said
23 he was wearing cream jeans.
24 Mr Lunt, who was arrested by Constable A, had
25 a bottle in his hand and he had a Rangers scarf around
29
1 his neck. Now, there is an issue as to whether or not
2 he was involved more deeply. Colin Prunty said a man
3 with a Rangers scarf had been kicking at Robert Hamill.
4 He couldn't say where he was kicking him, and that the
5 same man was brought to the Land Rover.
6 Of course, Lunt was questioned about his criminal
7 record for riotous behaviour. He had convictions in
8 1995 and 1996. The late Mr Richard Ferguson questioned
9 him about his attitude towards the police as
10 a consequence of his protestations over Drumcree on
11 previous occasions.
12 So again, in our respectful submission, there is
13 a body of evidence from which the Inquiry can draw
14 an inference that these individuals were involved in at
15 least the affray
16 THE CHAIRMAN: Are you going to help us now or later about
17 the evidence of Mr Kerr on the question of
18 identification? I don't want to take you out of your
19 stride, but it is something we shall have to consider,
20 so that you may want, at some stage, to address us about
21 it.
22 MR McGRORY: I suppose I can address it now.
23 We have a submission to make in respect of the DPP
24 that this issue was not well handled. The evidence
25 would suggest that -- Colin Prunty, of course, went to
30
1 see the Hamill family and watched a video tape of some
2 of those being released. He identified Forbes as the
3 one whom he had previously said was the guy with the
4 Rangers scarf.
5 Now, in his original statement he had not given
6 a particular description of the chap in the Rangers
7 scarf. The purpose of his evidence was that:
8 "There was a guy with a Rangers scarf whom I saw
9 kick Robert Hamill and I pointed out to the police and
10 I saw him a little bit later being arrested."
11 Now, there was a bit of a gap.
12 We have a number of submissions to make about that.
13 That was sufficient evidence on its own, albeit with
14 a bit of a gap, for the prosecution to mount a case
15 against Lunt on the basis that he was the guy with the
16 Rangers scarf and there was nobody else with a Rangers
17 scarf
18 THE CHAIRMAN: Was this a case for murder?
19 MR McGRORY: At least affray. At least affray. Prunty did
20 say he saw him involved in the kicking of Robert Hamill,
21 although he could not say exactly where on the body, so
22 it is arguable that that evidence of Colin Prunty's was
23 relevant to a prosecution of Lunt for murder. The
24 prosecution certainly saw fit to charge Lunt on the
25 basis of the evidence of Prunty, albeit with a gap, but
31
1 then the intervention of the evidence from Prunty that,
2 in fact, he had identified Forbes on the video as the
3 one with the Rangers scarf and, in fact, it couldn't
4 have been Forbes, and then Prunty repeats that to the
5 DPP when he goes in to see Gordon Kerr.
6 What the DPP did with that as well was to show him
7 photographs before he went to see Gordon Kerr. We raise
8 a concern about that methodology adopted by the DPP,
9 because what happened then, in fact, was that, when
10 Prunty went in to see Gordon Kerr, he is repeating the
11 identification of Forbes, now reinforced by the
12 photographs, and when he saw the photographs, he was
13 re-identifying Forbes. Am I wrong? Mr Emmerson is
14 about to correct me.
15 MR EMMERSON: Since Mr McGrory is about to develop this
16 submission, the evidence is that the photographs were
17 shown in the consultation by Mr Kerr and Mr Kitson
18 jointly, not beforehand.
19 THE CHAIRMAN: Yes.
20 MR McGRORY: My apologies. I am grateful to Mr Emmerson.
21 That's worse, in my view then, because it means Mr Kerr
22 is implicated in this showing of the photographs.
23 I mean, my submission in that regard is that really what
24 ought to have been done is that the moment Prunty's new
25 observations had been brought to the attention of the
32
1 prosecution, a statement should have been made by
2 Prunty, should have been taken by the police, or the
3 police should have been directed to take a statement.
4 The prosecution should have sat back and considered what
5 they'd do with that. Had it been done that way, they
6 might have considered: how damaging is this to the
7 prosecution?
8 It is unfortunate, but does it completely vitiate
9 the original evidence of Prunty, which was, "I saw a man
10 with a Rangers scarf, which was raised up over his mouth
11 engaged in unlawful activity in attacking Robert Hamill.
12 I also saw that same guy on the night being put into the
13 back of the Land Rover by Constable A and I identified
14 him as being the person involved in the attack on
15 Robert Hamill."
16 There could have been a submission by the DPP that
17 the identification by Prunty of Forbes as the man with
18 the Rangers scarf was unfortunate and might cast some
19 doubt on it, but did not entirely shake it, for the very
20 reason that Prunty had never given a detailed
21 description of facial expressions. The DPP could have
22 made the case, "He has made a mistake about that". It
23 could have been handed over to the defence in the course
24 of the trial. They could have made of it what they
25 will. There was still a viable prosecution, despite the
33
1 unfortunate intervention of Prunty's misidentification
2 of the guy with the scarf as Forbes.
3 As I say, the other submission I would make in that
4 regard is we are not at all satisfied that the showing
5 of photographs within the context of the DPP, of the
6 Prosecution Service, was necessarily the way to go about
7 it
8 THE CHAIRMAN: Suppose Prunty had made a statement that had
9 said, "Yes, the man I saw put into the Land Rover was
10 the man I saw on television being released". What then?
11 MR EMMERSON: I am sorry for interrupting. The facts and
12 sequence of this are very important. Mr Prunty did make
13 such a statement, contrary to what Mr McGrory has said.
14 The very first thing that happened when Mr Kitson
15 was informed by the family that Mr Prunty had told them
16 that the man he had seen on the video being released was
17 the man he had seen, both with the Rangers scarf in the
18 attack and being put into the Land Rover, was that
19 Mr Kitson, on the very same day, directed the police to
20 take a further statement from Mr Prunty, which they did,
21 in which he confirmed that the man he had seen on the
22 video being released was the man involved in both steps
23 of the incident.
24 So the suggestion that Mr McGrory has just made,
25 that that is what the DPP should have done, is what the
34
1 DPP did.
2 THE CHAIRMAN: What they did. So the question is: what
3 then?
4 MR McGRORY: I think question might have been given to
5 whether or not there should have been an identification
6 procedure, which didn't take place. I mean, one of
7 the -- I mean, we have --
8 THE CHAIRMAN: That would have had to be a confrontation,
9 wouldn't it?
10 MR McGRORY: No, it could have been an identification
11 parade.
12 THE CHAIRMAN: At that time, hadn't Forbes been arrested?
13 MR McGRORY: Yes, they had been arrested, yes. In fact,
14 I think they were in custody.
15 THE CHAIRMAN: You are saying Mr Forbes might have agreed to
16 stand on an identification parade?
17 MR McGRORY: He might have. He might not have, of course.
18 It is unlikely, but there are procedures in place under
19 PACE for having identifications. We now have
20 a situation where Prunty had come forward and said,
21 "I can now identify the person". It could have been
22 handed over to the police to deal with it in that way.
23 The problem that we have with the DPP involvement is
24 that the DPP involved itself in the investigation of
25 this issue in engaging with Mr Prunty in consultation
35
1 and in showing him photographs. You know, that, in our
2 respectful submission, was not appropriate conduct for
3 the Prosecution Service in the event of that happening
4 with Prunty
5 MR UNDERWOOD: I wonder if this might be a convenient moment
6 for a break for the stenographer?
7 THE CHAIRMAN: Yes, of course. I don't ask this question
8 now, Mr McGrory, but you may like to think of it during
9 the break.
10 Suppose a civilian says, "I saw X doing something",
11 but refuses to make any statement and refuses to be
12 a witness. There is no evidence that the police should
13 have seen X doing that.
14 In those circumstances, would a finding against X be
15 relevant to the working out of our terms of reference
16 and, if so, how? As I say, I am not asking you for
17 an answer now
18 MR McGRORY: I am very grateful you are not.
19 THE CHAIRMAN: I am giving you an opportunity to think about
20 it.
21 Very well. Fifteen minutes.
22 (11.42 am)
23 (A short break)
24 (11.57 am)
25 THE CHAIRMAN: Yes, Mr McGrory?
36
1 MR McGRORY: Thank you, sir.
2 I would like, sir, now to turn to -- would you like
3 me to deal with that question now, sir? I have had some
4 preliminary thoughts on it.
5 THE CHAIRMAN: When it is convenient for you to deal with
6 it.
7 MR McGRORY: Thank you. I will maybe do it a little bit
8 later.
9 Sir, I would now like to turn to an issue which has
10 caused very considerable concern to the family of
11 Robert Hamill. I would like to explore with the Panel
12 the extent to which this issue is relevant to the terms
13 of reference, because it may or may not be necessary for
14 me to deal with it in very significant detail, and that
15 is the question of whether or not there was
16 a preliminary skirmish or verbal exchange between the
17 Nationalists coming down from Thomas Street and some of
18 the Loyalists who were coming off the bus from the
19 Coach Inn.
20 Now I am aware that Mr Underwood has introduced, as
21 he has to, the evidence on the basis that it is relevant
22 to the question of whether or not the police in the
23 Land Rover should have been aware that there was
24 potential danger or that there was something going on.
25 Therefore, if there is significant evidence of
37
1 a preliminary argy-bargy, then that has to be taken into
2 account when considering the reaction or the speed of
3 the reaction of the police in the Land Rover.
4 It is my submission, however, that it may not be
5 necessary to go into it in precise detail, but I would
6 still like to address some of the evidence on it,
7 because it appears to us to be conflicting and confusing
8 and inconclusive.
9 It starts with the document created by P42, which is
10 at [01038]. It is a difficult document to read. I will
11 not ask you to read it on the screen, but I think it
12 could be summarised as follows.
13 The gist of it is that P42 observed two men and two
14 women walking along Thomas Street, when one of the
15 women, who had observed a crowd standing at the bakery
16 corner, advised the men that they should not perhaps
17 proceed. According to this document, one of the men
18 responded robustly, stating that it was his country and
19 he would go where he liked. There then began some
20 taunting with the man putting the bottle he was carrying
21 on the ground at the corner and urging those in the
22 crowd at the corner to take him on. He and one of those
23 at the corner were standing facing each other when
24 another one from the corner stepped out and pushed the
25 man who had been doing the taunting before running off
38
1 in the direction of St Mark's Church. The man who had
2 been punched, then did the same to the man squaring up
3 to him and ran in the direction of the first man. Then,
4 one by one, the others came to join the fight.
5 Now, taken at its height, this statement is really
6 suggesting that the incident was started by some
7 unidentified Catholic, it would be reasonable to infer,
8 coming down Thomas Street and confronting a crowd of
9 Protestants against the advice of one of the females in
10 the general company.
11 The problem with P42 is that he remembers absolutely
12 nothing. The statement is undated. It refers in the
13 opening line to:
14 "On the date of the fight, I observed two men", but
15 we don't know when that date is. There is some
16 suggestion it was create within a day or so, but one
17 would have thought if it was the next day it would have
18 referred to an incident "last night".
19 The document in itself is of limited evidential
20 value, because there are no detailed descriptions of
21 these people. There are descriptions of what it is they
22 did, but no description that would help us identify as
23 to who these people might have been, in terms of
24 clothing or other features.
25 By virtue of the fact that he remembers absolutely
39
1 nothing, the Panel is left to compare some of the
2 descriptions of what he says he saw happen with snippets
3 of evidence that we have from others to see whether or
4 not it might or might not have been accurate, or as to
5 who these people might have been as to who he is talking
6 about, or precisely when in the course of the evening
7 the incident happened.
8 The Panel has, however, heard -- before I leave P42,
9 the Panel may recall he sought anonymity. He gave
10 evidence in an anonymity hearing. I think I am at
11 liberty to discuss his demeanour during the course of
12 that hearing, which, in my submission, was one of
13 a gibbering wreck. Then the anonymity application was
14 refused and we came to hear his substantive evidence.
15 He seemed to make a fairly remarkable recovery, but --
16 THE CHAIRMAN: You say the application was refused. It was
17 granted, wasn't it?
18 MR McGRORY: Sorry. The application was granted. He then
19 seemed to go on to make a fairly remarkable recovery.
20 He still says he does not remember precisely what
21 happened, but he was still able to take us through the
22 statement as if he was giving that evidence, but, in
23 fact, he is not giving that evidence. He is simply
24 saying, "That's what I have said in that statement". He
25 still claims he has no memory of it whatsoever.
40
1 The Panel has heard evidence from E, F and D until
2 he is knocked unconscious, and of Colin Prunty and
3 Maureen McCoy, of their recollections of what happened
4 on the way down. Each and every one of them absolutely
5 denies that there was any such confrontation.
6 Now, there is a little bit of disagreement amongst
7 them, particularly among Colin Prunty and Maureen McCoy,
8 as to whether or not they overtook D, E and F or
9 remained behind them. Maureen McCoy has given evidence
10 that it was F, I think, who said something to her about
11 not going down there, which would appear perhaps to
12 chime with one part of this document, but one part only.
13 F denies that she said any such thing to Maureen McCoy.
14 Whether the Panel feels that F is right or
15 Maureen McCoy is right, at the very most, at the very
16 most, that is the only corroborative evidence of the
17 contents of this statement. The fact is that D, E, F,
18 McCoy and Prunty, each of the five of them has come here
19 and absolutely denied that there was anybody carrying
20 a bottle, that there was any shouting or argy-bargy with
21 the Protestant crowd, and if it has to come to a view
22 about what happened, that it has to prefer the evidence
23 from D, E, F, Prunty and McCoy in the general that there
24 was no significant argy-bargy, so to speak.
25 Then I also raise the question how relevant is this
41
1 to the terms of reference? It is of limited value,
2 I submit, for this reason: even at its height, P42's
3 statement gives an account of an altercation which was
4 very quick, and that it wouldn't have made a significant
5 impact on those in the Land Rover one way or the other
6 necessarily, who, I will come to submit later, are
7 engaged in conversation around about this point with
8 Forbes and Bridgett, in our submission, but what I am
9 saying is that I am not sure that the Inquiry
10 necessarily has to come to a firm view of what P42 says
11 one way or the other. It is certainly an inconclusive
12 issue, in my respectful submission, because of the
13 absolutely conflicting evidence from the two groups of
14 people, but the Panel at least has heard direct evidence
15 from E, F, D, McCoy and Prunty, all of whom must have
16 conspired to lie about this, if that allegation from P42
17 is correct.
18 Again, I still submit, in the context of the overall
19 terms of reference as to what the police did or didn't
20 do a little bit later on, it is of questionable value in
21 our respectful submission.
22 There also is some evidence from William Terence
23 David Jones. Now, the status of this evidence I submit
24 is of very minimal value, because he never came to give
25 evidence. It comes from a statement dated 16th May 1997
42
1 and it is to be found at [09111].
2 Now there is a passage in that statement four or
3 five lines down -- well, I will take it from the
4 beginning. He lives at an address known to police. The
5 Panel will recall this gentleman lived in a flat above
6 Jameson's bar with Carol Ann Woods, his then partner,
7 who is the sister of David Woods, who was, for a time,
8 one of those accused of the murder of Robert Hamill.
9 He says:
10 "At approximately 2.00 am I heard loud voices coming
11 from the direction of the British Legion area of
12 Thomas Street. I looked out of my window which
13 overlooks the bottom of Thomas Street on to
14 Market Street. I saw three or four men running down
15 Thomas Street towards Market Street. They were in the
16 middle of the road. Also in this group of men there
17 were three women. The man I have mentioned I can
18 describe as follows: (1) approximately 5' 10", medium
19 build, dark short hair. He was wearing a black leather
20 jacket, which was waist-length and black trousers. I'm
21 not sure if they were of jean material. (2)
22 approximately 5' 8", light build, dirty-fair hair,
23 short. He was wearing a grey jumper which had a pattern
24 all over it and he was wearing light-coloured blue
25 jeans. The two persons I have described I would say
43
1 were approximately, number (1) 24-26 years old, (2)
2 26-28. Number (3) approximately 5' 10",
3 stocky/well-built", and so forth.
4 He goes on to describe how those men came running
5 down the road and how one of them went over and hit
6 somebody just below him, who, when he looked closely,
7 turned out to be, strangely enough, his partner's
8 brother, who was standing outside the house.
9 Now the person he has described as approximately
10 5' 10", medium build, dark short hair, he was wearing
11 a black leather jacket, may or may not fit the
12 description of Robert Hamill. The description of the
13 second person at 5' 8", light build, dirty-fair hair,
14 short, was wearing a grey jumper which had a pattern all
15 over it and he was wearing light-coloured blue jeans may
16 or may not be D. The other person certainly seems
17 remarkably like Prunty, the third man, in terms of his
18 description of him, stocky, well-built, blonde fair
19 hair, shaved. He had a full face. He was wearing
20 a pale blue shirt and dark tie and black trousers.
21 Now, the problem I have with this, I submit, is, if
22 it is the same people as described by P42, they are
23 doing different things. Which is correct? I mean, even
24 taking this at its height, P42 has described -- if there
25 is a suggestion that it is the same group of people --
44
1 a verbal exchange between a woman and a man, somebody
2 with a bottle, a sort of "Come on" exchange, putting the
3 bottle down, the start of events, but this is
4 a completely different description. If it is
5 a description of the same people, they can't both be
6 right. We didn't hear from William Jones at all, so we
7 have not been able to test this.
8 There was an issue arose in the preliminary hearing,
9 I think, about one element of our submission which
10 challenged the issue about Robert Hamill's hair
11 colouring. I don't seek to make too much about that
12 because our overall submission about this material is
13 that it is virtually useless in terms of coming to
14 a determination as to how these events began, but the
15 family of Robert Hamill have all said he had dirty-fair
16 hair. Now, dark hair may still fit that broad
17 description
18 THE CHAIRMAN: We have a photograph.
19 MR McGRORY: You have a photograph. If I may say so,
20 photographs need not necessarily translate into
21 a person's eye-witness view of someone's colour of hair.
22 The description is so broad anyway, that, while we
23 mentioned there was a dispute about the hair colouring,
24 I don't wish to make too much of it.
25 It is more my submission that the value of this
45
1 evidence has to be very limited. I mean, we have P42
2 conflicting with D, E, F, Prunty and McCoy, but he
3 remembers nothing. You have heard from them. You may
4 have views about whether or not some of them might not
5 have been entirely forthcoming, but all of them have
6 been unanimous in denying the contents of P42's
7 statement, except for the fact that McCoy did say one
8 thing that might corroborate a bit of it.
9 Then you have this fellow Jones. This fellow Jones'
10 evidence has not been tested, because he went missing.
11 He split up from Carol Ann Woods. We heard from her.
12 Interestingly enough, if you look at her statement, she
13 did not see this. She comes and looks over him. Then
14 they go down and bring him up. They both say -- in
15 fact, she looks over his shoulder and she says she sees
16 people over standing at the corner. She goes down.
17 They bring young David up and have a look at him. They
18 both say it was a very short time they did that before
19 they looked out the window again. They looked out the
20 window again and Robert Hamill and D are on the ground.
21 They see things which, in the broad sequence of events,
22 happen later.
23 So in our respectful submission it is possible that
24 some people did come down Thomas Street. Somebody may
25 have hit Davy Woods either outside the front door or
46
1 further down the corner. We don't know, but the problem
2 with this evidence is it is not tested and it is utterly
3 unreliable. It is our respectful submission there is
4 absolutely no basis upon which the Panel either need to
5 or should make a finding that Robert Hamill is the
6 person described as number 1, but that, secondly, there
7 is questionable value in asking the Panel to come to any
8 firm conclusion as to whether or not there was any
9 significant altercation, verbal altercation, between the
10 parties in terms of determining whether or not the
11 police reacted in an appropriate way.
12 So those are my submissions about that evidence.
13 I would like now perhaps to turn to the Land Rover
14 police. Sorry, before I do that, I could also spend
15 some time analysing the statements of the three
16 individuals who may or may not have been around the
17 corner of the bakery, and that is Woods, Allen and
18 Robinson.
19 I have detailed written submissions on the subject
20 of what they were or were not doing, but in my
21 respectful submission, they each conflict with each
22 other in terms of how the incident might have begun.
23 Davy Woods and Robinson say they were entirely alone
24 separately. They are, however, observed by, I think it
25 is Pauline Newell, walking together down the street more
47
1 or less as a group with one slightly behind the other.
2 Allen, however, gives an entirely different description,
3 that he was, in fact, with them -- well, with
4 Davy Woods. Allen says Davy Woods was hit, but hit down
5 at the corner, at the bakery. Davy Woods, of course,
6 places himself, interestingly, right outside the door of
7 Jamesons, where his sister's boyfriend, a number of days
8 later, says he saw him get hit, but Allen says he was
9 bit further down towards the corner.
10 Those statements all conflict with each other as to
11 how things began and who hit whom, whether it was
12 Nationalists who hit Protestants at first. The
13 Nationalist evidence, on the whole, is that there was
14 a sudden, unprovoked attack. It is my respectful
15 submission that whatever imperfections there may be
16 within the Nationalist evidence, it is still to be
17 vastly preferred over the evidence of these three, whose
18 accounts conflict in quite a number of ways.
19 Again, as I say, it -- again, I suppose this is --
20 I mean, Robinson, Allen and Woods feature to one degree
21 or another in the statements of Tracey Clarke and
22 Timothy Jameson, Woods to a much lesser extent, Robinson
23 and Allen to a much greater extent, but -- so the
24 Inquiry may feel that in determining whether or not
25 Tracey Clarke was telling the truth about what she
48
1 saw -- certainly Robinson and Allen do -- they need to
2 consider what it is those three are saying about what
3 happened at the corner.
4 It is our overall submission that their statements
5 are so replete with inconsistencies with each other that
6 you could not believe any of them.
7 Now, turning to the Land Rover police, and really we
8 are getting to the nub of the terms of reference now, in
9 terms of what the police did or didn't do, certainly the
10 Hamill family came to this Inquiry with a belief based
11 on what they had heard and what they had been told, that
12 there was no evidence of any assistance given by police
13 at any time. That belief has perhaps been revised. The
14 family have constantly revised their understanding of
15 events as the evidence has unfolded.
16 We do not seek to make the case that the police did
17 not get out of the Land Rover at any time. What we do
18 submit, however, is that the police firstly ignored
19 a clear warning that trouble could be looming from
20 Thomas Mallon; that they not only ignored that warning,
21 but they ignored it by engaging in casual conversation
22 with Forbes and Bridgett; that at some point during that
23 conversation events over at the corner of Thomas Street
24 and Market Street began to unfold. Whether there was
25 a short argy-bargy or not is something that may or may
49
1 not be decided, but in terms of the attack on
2 Robert Hamill and D, who undoubtedly were both knocked
3 unconscious, that's when it began. They took their eye
4 off the ball in a very significant way.
5 Then, when they were pulled out of the Land Rover by
6 the unidentified person, the steps they took were
7 inadequate and ill-judged. So we are still submitting
8 that there is a very strong case to be made that the
9 police in the Land Rover did not react quickly enough,
10 promptly enough and failed to do things that they should
11 have done.
12 Now, Thomas Mallon's evidence. You saw him give
13 evidence. If I may say so, it is our submission that he
14 came across as a truthful, honest and clear witness: he
15 clearly leaves a little bit earlier than the majority of
16 the crowd in St Patrick's Hall. He comes down
17 Thomas Street and he crosses. The Land Rover is perhaps
18 moving from one position to the other, the second
19 position to the third position, but it is clearly in or
20 about the mouth of Woodhouse Street. He makes gestures
21 and gets the message across, because they all accept
22 they got the message from him that his friends or his
23 associates were coming down Thomas Street and that they
24 should be wary of that. That was the purpose of him
25 doing that. This is a group of four people who had been
50
1 sent out on public order duty to the centre of Portadown
2 in a place which was a known flash point and people were
3 beginning to emerge from the bus.
4 Now, there is an issue about whether or not he had
5 an altercation with Bridgett and Forbes, who everybody
6 in the Land Rover accepts was there. He says,
7 "I encountered these people. It was a little bit
8 threatening. They offered me a drink but I got off-site
9 fairly quickly and I moved on down Woodhouse Street",
10 where he eventually meets Hull and McNeice.
11 Some of the Land Rover crew said they had the
12 impression he was being threatened by Forbes and
13 Bridgett. It is possible. There are two possible
14 explanations for that. His evidence is very clear
15 that's not what happened. They might have
16 misunderstood, being inside the Land Rover, and having
17 observed some form of altercation. Obviously, to them,
18 Mallon was a Catholic, and Bridgett and Forbes they knew
19 were trouble-making Protestants, so they may have
20 thought, "They are giving him trouble", or whatever.
21 They may have been mistaken about that, but they may
22 also have thought it in their interests to embellish the
23 altercation between Bridgett and Forbes, on the one
24 hand, and Mallon, on the other, to give them a reason to
25 be distracted and to be concerned about Bridgett and
51
1 Forbes and not to be observing Thomas Street, which they
2 should have been doing.
3 Now, I think Neill, to be fair to him, in his
4 evidence said he did look up after Mallon went. I quote
5 the evidence. It is footnote 16 of my submissions. He
6 gave evidence on 19th May. At page 7 of his evidence he
7 does say that he looked up Thomas Street and at that
8 stage he saw nobody coming down.
9 That, in itself, is significant, we submit. What
10 happens then is a conversation ensues between Bridgett
11 and Forbes, on the one hand, and the police in the
12 Land Rover, on the other hand.
13 Now it is our respectful submission that that
14 conversation was a substantial conversation. It is
15 difficult to time it, but it was certainly
16 several minutes. It could have been five minutes.
17 Mr Adair has said in his written submissions that there
18 was a brief distraction. He has accepted that much, but
19 he says it was brief. In our submission, it was more
20 than brief. If one looks at even the topics that were
21 discussed -- it is at paragraph 23 of our written
22 submissions, page 133 -- we quote the evidence of
23 Forbes, who gave evidence on 6th May. Sorry, his
24 evidence of 6th May 1997. This is what he said to the
25 police:
52
1 "The doors opened and the police officer in the back
2 noticed us and he called us over. He was staying to
3 Stacey and all, 'I take it you didn't go and join the
4 army and all'. He said, 'No. Just left school and went
5 to work for DV Jameson's'. He was asked, 'Do you know
6 that police officer?' 'I can't remember if it was ..."
7 I will not say any more. He is referring to who
8 would have been P40. He says:
9 "They were just talking away. They were just
10 talking to the police."
11 He was asked what they were talking about. He said
12 this policeman he referred to as P40 was asking Stacey
13 if he wouldn't join the army or something, the RAF.
14 Stacey turned round and said he had decided to leave
15 school and was working for Jamesons. He then said, "Are
16 you working?" and he said he was a painter. "I might
17 get you out some time to do a job for me". You know?
18 So he asked, did he know who that policeman was and so
19 forth. He says this conversation is ongoing when
20 a fellow comes over and pulls Neill out of the
21 Land Rover.
22 There was also conversation about the clothes they
23 were wearing. The female police officer said to Stacey
24 about his shirt, about it being Ralph Lauren and that
25 they were expensive or a bit dear:
53
1 "... and we were just carrying on with her".
2 Then he saw a ring and he laughed and there is a bit
3 of banter about her "being mad getting married."
4 So this is quite a chat that's going on here. This
5 is not a momentary distraction, and this is after
6 Thomas Mallon has come down and has said to these police
7 in the Land Rover, "There may be people coming down
8 Thomas Street behind me".
9 They know these people. They know them from within
10 the community. They know a bit about their backgrounds.
11 They also know they are trouble-makers. They spend some
12 considerable time talking to them.
13 The Panel have to ask themselves: was that the right
14 thing for them to be doing at that point in time? What
15 else could they have done? As soon as Mallon gave them
16 the warning, they could have moved over towards
17 Thomas Street. They could at least have kept a watchful
18 eye, but no, what they do is they engage in banter with
19 these two guys.
20 In our respectful submission, that was their first
21 key mistake. Then very quickly afterwards they are
22 pulled out of the Land Rover. Everybody says that.
23 Forbes and Bridgett say that. The police in the
24 Land Rover say that as well.
25 What is it that is said on everybody's evidence:
54
1 "You sat there and watched that happen."
2 Now, if one looks at the evidence of the four police
3 in the Land Rover, the one officer who has made the case
4 that there was definitely nobody on the ground is
5 Officer Neill, who was the only full-time policeman --
6 they were full-time reservists, but he was the only
7 non-reservist in the Land Rover on the team.
8 The others all will acknowledge that they saw the
9 bodies, but much later, and have not denied
10 categorically that they didn't see them, but Neill is
11 quite sure there was no body on the ground. In fact, he
12 even seems to suggest he saw Robert Hamill a little bit
13 later on on his feet. Our respectful submission is that
14 that cannot be right.
15 The Panel is entitled to draw an inference from the
16 contents of what was said to the police in the
17 Land Rover, "Yous sat there and watched that happen",
18 that something very significant had happened for someone
19 to go over to the Land Rover and open the door and pull
20 out a police officer and make such a comment.
21 We know of nothing else as significant as the
22 felling of D and Robert Hamill. If there was some sort
23 of argy-bargy, that would not have prompted the person
24 to come over and do that. Even if there was some sort
25 of a fight breaking out between people on their feet,
55
1 that would not explain those words, because those words
2 imply that something very significant had happened. It
3 had occurred. That, in our respectful submission, is
4 very, very powerful evidence supporting the contention
5 that the attack on Robert Hamill and D, which rendered
6 them unconscious, had happened and they had been felled.
7 On the evidence of the police it had to have
8 happened between the time that Mallon came down and
9 warned them that there might be people coming down
10 Thomas Street and the time of the person coming over to
11 the Land Rover while they were talking to Forbes and
12 Bridgett.
13 Then there is the question of: what is it the police
14 did do once they did get out of the Land Rover?
15 THE CHAIRMAN: Just before you come to that, are we helped
16 by what Reserve Constable Cornett said in support of her
17 application for compensation, that they got out of the
18 Land Rover to help someone?
19 MR McGRORY: Yes, I think so. It is unfortunate we did not
20 hear from Reserve Constable Cornett. I am allowed to
21 mention her name.
22 THE CHAIRMAN: We know what she said in support of her
23 application for compensation.
24 MR McGRORY: Yes. That's of very considerable assistance,
25 in my respectful submission. I think I have a note of
56
1 it somewhere.
2 The next major question about what the police in the
3 Land Rover did or didn't do is: what happens next? If
4 the Panel comes to the view that the totality of the
5 evidence suggests that, by the time they got out,
6 Robert Hamill and D had been felled, then they are open
7 to the criticism that it might not have happened, had
8 they acted differently as soon as they got the warning
9 from Thomas Mallon, but what they did when they got out
10 is another question altogether.
11 Now we have four police officers in the Land Rover.
12 Three of them are reservists and one of them is
13 a commissioned officer, a fully commissioned officer.
14 We make the submission that there was no cohesion or
15 coordination to what they did. Cornett is really taken
16 out of the picture in terms of helping anybody or
17 intervening for the most part, because she spent so much
18 time on the radio. That's not to say she couldn't have
19 been of value in terms of gathering evidence or in terms
20 of helping disperse the crowd or going to someone's
21 assistance, but if one looks at the radio log, she is
22 on -- there are two different radio logs and there was
23 a bit of confusion about her call sign between 80 and
24 81, but she makes her first call at 1.45.37. There is
25 another inconclusive call 11 seconds later. Then there
57
1 is a reply at 1.45.51. Another indecipherable call at
2 1.45.58 from 81, which was her. She was either 80 or
3 81. There is another inaudible transmission at 1.46.
4 Then there is an audible one at 1.46.15:
5 "We need back-up urgently in the town."
6 She is told there are other mobiles. She says:
7 "Tell all we're in the middle of the town."
8 There is another one -- she phones for the
9 ambulances at 1.48. This, we say, is very significant.
10 The ambulances are sought within two and a half minutes,
11 under two and a half minutes of the first call, which we
12 would suggest would have come very quickly after them
13 getting out of the Land Rover. So there has to be
14 a purpose for seeking the ambulances at that stage. The
15 ambulances don't arrive until about 1.58 and they are
16 away within two minutes. So there is another whole
17 ten-minute period after the call for the ambulance is
18 made, but the real significance of this is the shortness
19 of the timespan between the first call for help and the
20 call for the ambulances and the timing of the call for
21 the ambulances, which was very quick.
22 We submit that this is very powerful evidence that
23 Constable Neill cannot be right when he says
24 Robert Hamill was definitely not on the ground.
25 There are other calls then at 1.49, 1.53 and 1.54.
58
1 The other calls are after the ambulances arrive.
2 She is performing a very useful function. She is
3 operating the radio. That must have taken up a fair
4 amount of her time.
5 P40, on the other hand, P40 's evidence we submit is
6 deeply unsatisfactory. He gave evidence on 26th March.
7 We could illustrate how we submit his evidence is
8 unsatisfactory in a number of ways.
9 He said, for example, he, too, spoke to doctors
10 about what he had seen. He was taken through those
11 documents by Mr Underwood. He was asked:
12 "Now, there are some other documents I want you to
13 look at about your account, about what happened when
14 everyone got out. Can we start with page 39201?
15 "... This is ... a report on you and it is a sort of
16 running report, because it deals with a series of
17 interviews you had with the doctor. I am not interested
18 in any of the medical side of it. What I'm interested
19 in is what you have told the doctor ..." about what had
20 happened.
21 "Looking at page [39201], as we have got on the
22 screen here, this is part of an account given by the
23 doctor ... What he says is this:
24 "'He told me he did not witness the killing, but he
25 did see the body covered in blood.'
59
1 "Did you see a body covered in blood?
2 "Answer: No.
3 "Question: Your account in your statement is that
4 when you got out and you fighting or scuffling, you saw
5 no bodies on the ground at all --
6 "Answer: No.
7 "Question: -- and it is only later, when you were
8 dealing with people at the Woodhouse Street entrance,
9 that you saw some people on the ground?
10 "Answer: Yes."
11 But he has already accepted that -- he has told the
12 doctor he saw a body covered in blood but there was not
13 body covered in blood. There might have been a small
14 amount of blood around Robert Hamill's head. There was
15 a question of liquid around Robert Hamill's head and
16 whether or not it had come from a bottle, but there was
17 nobody covered in blood. He clearly told the doctor
18 this, but he denies he saw such a thing.
19 He also told the doctor, and I am quoting from his
20 evidence from Mr Underwood's questioning:
21 "Answer: ... 'He told me he had been in the back of
22 the Land Rover at the time of the incident. He saw two
23 fellows lying on the road. One of them was lying in
24 a pool of blood with a broken bottle to one side.'
25 That is your second reference in an interview with
60
1 the psychiatrist about the pool of blood. Are you clear
2 that you didn't tell the psychiatrist about blood?
3 "Answer: That pool of blood could have been the
4 contents of a bottle ..."
5 "Question: If you go over the page ... you are
6 asked about your reaction ...
7 "'" ... I can't remember having any reaction."
8 P40 told me that, having decided not to intervene, he
9 had not been in severe danger from the crowd.'
10 "Question: This is your psychiatrist instructed
11 for the purposes of making your claim ..."
12 He was asked if he was over-egging the pudding. He
13 was told there was a very grave concern that the others
14 in the Land Rover had not done what they should have
15 done. Again, he is referred to the passage where he
16 tells the doctor, having decided not to intervene, he
17 had not been in severe danger.
18 What he also goes on to say, another passage of his
19 evidence on the same day:
20 "'Question: Are you saying it would have been
21 physically impossible for the four of you ...'.
22 "That's the four in the Land Rover:
23 "'... or the three of you and one woman to stop the
24 crowd?
25 "'Answer: Yes. Well, at the end of the day, if we
61
1 got -- if we have -- my wife could have been walking
2 behind a coffin as well, so she could have, if I had
3 been in the middle of it.'"
4 That was the answer he gave Mr Underwood.
5 Quite clearly, we submit this officer shrank from
6 intervening. He panicked. You saw him give his
7 evidence. You may take your views on the adequacy of
8 this officer as a man, but he clearly is someone who was
9 deeply shaken by what had happened, but who just
10 crumbled. He just crumbled. He has said that he spent
11 his time guarding Woodhouse Street and that there was
12 some person who might have emerged from Woodhouse Street
13 that he tried to stop, but in our respectful submission,
14 P40 was useless.
15 Now, that leaves Atkinson and Neill. Clearly
16 P40 did not get any clear direction as to what he should
17 have been doing. He was left to his own devices.
18 Atkinson we will come to later, about Atkinson and
19 the allegations against Atkinson which are central to
20 this Inquiry in terms of his behaviour towards Hanvey,
21 but for the sake of my submission, if this Inquiry finds
22 that Atkinson did do those things that are alleged of
23 him in terms of Hanvey, then everything Atkinson says
24 about what happened on the night is questionable,
25 because you have to look through his evidence through
62
1 the prism of someone who anything he says is designed to
2 reflect from the reality, which is that he saw
3 Allister Hanvey, whom he recognised and knew, attacking
4 Robert Hamill and he tipped him off. So one has to look
5 at his evidence in that regard.
6 It is interesting that in his statement Atkinson
7 does say towards the end that out of the corner of his
8 eye -- it is on page [06347] -- the bottom of
9 page [06347], he says he observed two bodies lying in
10 the roadway, one in the middle of the road outside
11 Eastwoods shop. Again, he puts that fairly well into
12 events and his description of events. He also says
13 later in the statement that out of the corner of his eye
14 he noticed three people jumping on somebody's head.
15 So one has to ask the question, at the point that's
16 describing that event he says he was helping
17 Constable Neill, but one has to look at that. Out of
18 the corner of his eye he saw three people jumping on the
19 head? Now, this is a police officer. One has to look
20 at that and say, "Surely he must have seen more or could
21 have made it his business to see more, or could have
22 gone" -- he said he went back over towards that person,
23 but the question must arise as to whether or not he has
24 been frank here. We submit that he is not, that he
25 clearly saw three people jumping on Robert Hamill's
63
1 head. That was the point at which he identified to
2 himself Allister Hanvey.
3 But you must look at Atkinson's claims to have been
4 actively involved in protecting the people on the ground
5 with a view that this is someone who potentially was
6 actually a corrupt policeman, if you find he did what
7 was said of him in terms of tipping Hanvey off.
8 Therefore, one would have to ask oneself: if he
9 protected Hanvey, and Hanvey was one of those three
10 people he says he saw out of the corner of his eye, why
11 didn't he arrest Hanvey? The question is he didn't
12 arrest him because he didn't want to arrest him, because
13 he was an associate. That is the point at which
14 Atkinson turned.
15 So of the four people in the Land Rover, we submit
16 that P40 is of no help. He has crumpled. Cornett is
17 doing her best probably. We didn't get to hear her, but
18 she is spending a lot of her time on the radio.
19 That leaves Neill. Now, it is our respectful
20 submission that Neill knows in his heart that he saw
21 Robert Hamill on the ground, but that he is part of
22 a group of four about whom allegations are made that
23 they did nothing. The Panel might wonder that if he
24 were to be truly frank, or were he to have been truly
25 frank at the time, that he would have been basically
64
1 admitting that the four of them collectively were of no
2 value to Robert Hamill at all, and he would have been
3 very conscious of the suggestion or risk of accusation
4 that they had done nothing. Therefore, he simply cannot
5 admit that Robert Hamill was on the ground.
6 We submit that the preponderance of the evidence is
7 that he must have been on the ground at the time.
8 Now, Colin Prunty has said that there was some
9 intervention by the police in terms of pulling people
10 off. We don't -- we don't seek to challenge that
11 evidence, but the question has to be asked: at what
12 point is that? We cannot be terribly sure. We submit
13 in the generality of Prunty's evidence it could have
14 been later. Prunty is clearly telling the truth about
15 that, but it was really too little, too late.
16 Neill has chosen to come to this Inquiry and he has
17 given his evidence that he still maintains the body was
18 not there. He has to be wrong about that. It is
19 possible that the body was surrounded by a group of
20 people and he didn't see it at that point. That's not
21 what he says. He describes various fights going on in
22 a number of places. He goes to try to break them up.
23 He says when they were all out and about doing that,
24 Hamill must been felled. He must be wrong about that.
25 The question then arises: what could he have done?
65
1 Well, he was the leader of the Land Rover crew. There
2 were a number of things we respectfully submit he could
3 have done once they were pulled out of the Land Rover
4 and they were made aware something serious had happened
5 and there was something going on over there. He could
6 have got back in the Land Rover and driven it over the
7 reservation over towards them. What we are talking
8 about here is four armed police personnel. These people
9 were armed. Yes, there may well have been a large crowd
10 of hostile Loyalist youths who were engaged in various
11 altercations, many of whom were busy kicking at
12 Robert Hamill on the ground, but the Land Rover driving
13 over towards them was one option. On his own evidence,
14 it is not that he would have knocked anybody over or
15 anything like that, there was a crowd immediately in
16 front of him. He could have done that.
17 They could have got out their weapons. In our
18 submission, I mean, what Atkinson is saying is that --
19 even if you take it, and accept it, which we do not,
20 that he saw out of the corner of his eye people jumping
21 on somebody's head, a weapon could have been got out and
22 fire in the air, something of that kind.
23 What we say in respect of the Land Rover crew in
24 general is that two were of little help in the
25 situation. One, everything that he says has to be taken
66
1 with deep suspicion, if the Panel accepts the later
2 allegation he was assisting Hanvey. Therefore, he would
3 have deliberately been of no help to Robert Hamill,
4 because to have been of help to Robert Hamill would have
5 necessitated perhaps arresting his friend,
6 Allister Hanvey, which he could not do. That rules him
7 out and leaves Neill.
8 One wonders how much Neill knew about the
9 relationship between Atkinson and Hanvey. We don't
10 know. In any event, Neill, as the leader of the
11 Land Rover crew, in our respectful submission, could,
12 and should, have taken other action once they got out of
13 the Land Rover. He could, and should, as the leader of
14 the Land Rover crew, have been very firm in terms of the
15 chit-chat that was going on with Forbes and Bridgett and
16 moved off and deployed people to keep an eye on
17 Thomas Street, moved the Land Rover further at that
18 stage, but he took his eye off the ball.
19 The circumstances in which he took his eye off the
20 ball are such that he allowed those officers who were
21 with him to engage in this chit-chat with Forbes and
22 Bridgett when they all should have been doing other
23 things. He has said himself that he is wracked with
24 guilt and he questions himself: could more have been
25 done?
67
1 In our respectful submission, that does not sit well
2 with a man who knows he did everything he could have
3 done, that that evidence of Constable Neill betrays his
4 own belief and knowledge that a lot more could have been
5 done in respect of protecting Robert Hamill by the
6 Land Rover crew
7 THE CHAIRMAN: Do you want to say anything about Ms McCoy's
8 evidence that she saw people poking their heads round
9 the corner and then drawing them back, and
10 Constable Neill's admission, if he had seen that, that
11 would have been a sign of impending trouble or the risk
12 of impending trouble?
13 MR McGRORY: Yes. In our respectful submission, that's one
14 of those things that they ought to have seen after they
15 got the warning from Thomas Mallon, but that he didn't
16 see it because they were busy -- distracted with the
17 conversation with Forbes and Bridgett. I mean,
18 Maureen McCoy's evidence, we submit, should be accepted
19 on that score and that that was something that was
20 missed by the Land Rover crew.
21 THE CHAIRMAN: Are you moving on now to another matter?
22 MR McGRORY: I might, sir. If I could take this opportunity
23 to ask for the lunch break.
24 THE CHAIRMAN: We can break off now until 2.05, only because
25 at the moment my LiveNote is not working.
68
1 (12.55 pm)
2 (The luncheon adjournment)
3 (2.05 pm)
4 THE CHAIRMAN: Yes, Mr McGrory.
5 MR McGRORY: Thank you, sir.
6 Sir, I am about to move on to address the question
7 of whether Reserve Constable Atkinson did tip off
8 Hanvey. Before I do that, I have been reminded of one
9 point I was discussing earlier today in respect of which
10 I would want no misunderstanding, and that's the extent
11 to which any conversation that the police officers in
12 the Land Rover had with Forbes and Bridgett might have
13 been necessary in a way in order to keep them occupied
14 to protect Thomas Mallon. I am conscious of the fact
15 that a contrary submission might be made that that is
16 perhaps what they were doing, but I would remind the
17 Panel that Mallon took off down Woodhouse Street and
18 they did not follow him. Therefore, he was in no
19 immediate danger.
20 Even if that were the case, he could have been
21 protected in some other way in the sense that it didn't
22 take all four of them to engage Bridgett and Forbes, and
23 in any event, the evidence would suggest that that's
24 not, in fact, what they were doing. The nature of the
25 conversation was that of a chit-chat, what they were
69
1 doing and so forth, and it clearly went on for quite
2 some time. The danger that Mallon had alerted them to,
3 which was the potential for trouble of anyone coming
4 down Thomas Street, was, in fact, ignored.
5 In any event, I am really reiterating a point I made
6 earlier, but I simply want to emphasise that
7 THE CHAIRMAN: Yes.
8 MR McGRORY: Moving on to Reserve Constable Atkinson, the
9 evidence from Tracey Clarke on 10th May -- first of all,
10 that was not the first the police had heard of it. It
11 had come, first all, through Andrea McKee, who had been
12 overheard talking about this by one of the protection
13 guards of Bobby Jameson. She was influenced then to
14 meet Inspector Irwin in darkness, I think, at
15 a graveyard. She imparted the gist of that information
16 that she had got from Tracey Clarke to Inspector Irwin
17 and I think it was Honeyford, but I am sure Mr Adair
18 will correct me, or it was McAteer -- it was McAteer --
19 in the car. So it was in the system from 8th May.
20 I think the evidence also is that the police had
21 even started to take steps to check the telephone
22 records -- they certainly took the steps to check the
23 telephone records as soon as Tracey Clarke came into the
24 police station herself on the 9th. The statement was
25 signed in the early hours of the morning on Saturday,
70
1 10th May.
2 Now, what she told them was what Hanvey had told
3 her, but what I submit is of interest is what she says
4 of the context in which she was talking to Hanvey,
5 because she told Hanvey, she says in her statement of
6 10th May, on 29th April, that she had gone to the police
7 when she hadn't. She said she made a few things up just
8 to annoy him.
9 So Hanvey was aware from the 29th that he had
10 a problem with Tracey Clarke and that she at least had
11 the potential to be someone who would go to the police,
12 which will have relevance a bit later on when we get to
13 some other issues about whether or not there was
14 a concern to protect Tracey Clarke, but that's in her
15 statement.
16 Then what Hanvey goes on to do, according to her, is
17 to really boast that, you know -- it is almost as if he
18 is saying to you, "Well, whatever it is you do, I am all
19 right, because I have Atkinson, and he is even ringing
20 me, and he phoned me at 8 o'clock the next day". He
21 gave her that time.
22 One has to ask oneself -- she now says she invented
23 that, but when one looks at the context in which she
24 says he said it to her, it has a ring of truth about it
25 in terms of the response he has given and that he's
71
1 boastful of the fact that he has this contact within the
2 police.
3 In my respectful submission, there is other evidence
4 which would suggest that, in fact, he was very cocky
5 about this. He is interviewed by the police, first of
6 all, I think, on 7th May, and then after he is arrested
7 again on 10th May. On both of those occasions, he
8 describes how he helped a policeman and he describes him
9 as being of stocky build, moustache, about 5' 10",
10 gingerish hair. That, in our submission, is, in fact,
11 a description of Atkinson. There is no other policeman
12 of anything like that description. The reason he has
13 done that is that he is confident that he has a friend
14 in the police, that if he says, "I was helping that
15 friend", and the friend is asked, that he will confirm
16 that.
17 Of course, Hanvey senior, Allister Hanvey's father,
18 he also boasts, "My son was helping the police", well,
19 not necessarily a boast, but he makes that reference on
20 12th May, when the police come to the house. He makes
21 the point that Allister helped a policeman who might be
22 giving evidence in support of him, but he refused to say
23 who that policeman was. Within the Hanvey household
24 there is a confidence. I suppose Hanvey senior's
25 comment could be explained by the fact that young Hanvey
72
1 told his father that, but he refuses to name the
2 policeman.
3 In my respectful submission, that gives away the
4 fact that this was designed to make Allister Hanvey look
5 like he is helping the police and that there is
6 a policeman who will, in fact, confirm that.
7 If he was genuine in that, why wouldn't he just say
8 who the policeman was? He refused to name him. It is
9 not he says, "I don't know who it was", he says, "I'm
10 not naming him". One would have thought he would have
11 named him if it was in his son's interest. The reason
12 why he didn't name him, we submit, was, in fact, he
13 doesn't want to say too much, but they are planting the
14 seeds that, in fact, somebody will support
15 Allister Hanvey's contention that he was, in fact,
16 helping the police.
17 But, of course, the problem for them was they may
18 have thought this was very clever, but Atkinson did not
19 necessarily know they were saying that, but that's not
20 quite what he said. There is evidence that it did not
21 come to light for a number of years, because it was in
22 the statement of P89 that was made some years later, who
23 had forgotten all about this apparently, and whose
24 memory was jogged, that Atkinson had said to him on the
25 night, "Watch that guy there. He is an expert in
73
1 martial arts". So Atkinson had already said something
2 in a critical way of Hanvey in the sense that he was
3 involved in the affray at least or was a potential
4 danger.
5 Of course, Mr Leatham, the prison officer who gave
6 evidence, who was involved in the Tae Kwon Do club along
7 with Reserve Constable Atkinson and Allister Hanvey in
8 his capacity as a committee member, he recounted how
9 Atkinson had told him he had met Hanvey, who had fallen
10 off the rails and was out of his head or something on
11 drink or drugs and he had told him to f*** off out of
12 the way.
13 Atkinson tried to say, when questioned about that,
14 that Leatham had a bit of a drink problem, but
15 I respectfully say, when you revisit his evidence, it
16 was given -- he was a gruff, robust sort of a guy, but
17 that again had the ring of truth about it. There was no
18 reason why he would make it up that Atkinson had said
19 something like that to him.
20 So there are these parallel things going on. The
21 Hanveys, in our submission, were a bit too smart by
22 half. As I say, had they been genuine, they would just
23 have named Atkinson. The fact that Hanvey knew Atkinson
24 has to be found -- well, sir, I make the submission that
25 there will be evidence that these people all knew each
74
1 other in this small circle. Examples of it are, for
2 example, there was evidence from a bank clerk that
3 Atkinson and Leatham were on the -- their names were on
4 the bank account of the Tae Kwon Do club. This is
5 a small club in a small enough town. These people must
6 have known each other. Hanvey was a Tae Kwon Do star.
7 He was a black belt. He taught Atkinson's daughter
8 Tae Kwon Do. These people -- Andrea McKee has said they
9 went to competitions. There was a barbecue, for
10 example, which they were all attending in Atkinson's
11 house. These people all knew each other. It is
12 inconceivable, we submit, that Hanvey did not know
13 exactly who Atkinson was and that Atkinson did not know
14 exactly who Hanvey was.
15 Eleanor Atkinson worked in the Electricity Board
16 along with Kenneth Hanvey, Allister Hanvey's father.
17 They must have known each other.
18 Then, of course, we cannot forget the evidence of
19 Andrea McKee, which is absolutely central to this. She
20 has given very clear evidence that her alibi statement
21 about the phone call was a lie.
22 Now, I am not going to go into too much detail on
23 this, because I am sure there will be submissions on her
24 behalf, but this woman ran the risk of going to prison
25 over accepting that, in fact, she had told a lie back
75
1 then, and she has also said, yes, she accepts entirely
2 she did convey the information to Inspector Irwin. She
3 was surprised Inspector Irwin took the alibi statement
4 from her. She was influenced by her husband. She
5 pleaded guilty to having entered into that conspiracy to
6 pervert the course of justice and her husband pleaded
7 guilty and he went to prison for six months.
8 Now, that is the foundation stone of any analysis
9 that the Panel has to make as to whether or not
10 Tracey Clarke was telling the truth about what it was
11 Hanvey said to her, because, in fact, she went so far as
12 to give a time of 8 o'clock in the morning. We know, of
13 course, that there was a phone call at 8.37 in the
14 morning to the Hanvey household from the Atkinson
15 household. So if Tracey Clarke was inventing that, it
16 is astonishing that, in fact, there was a phone call, of
17 all days, the next morning at 8 o'clock.
18 Then we have, of course, the evidence of
19 Andrea McKee
20 THE CHAIRMAN: I don't quite follow that. If she had
21 invented the phone call, she would be in a position to
22 know about it, wouldn't she? If she had not invented
23 it, then she wouldn't be in a position to know.
24 MR McGRORY: Yes.
25 REV. BARONESS KATHLEEN RICHARDSON: If she had invented it,
76
1 it was a very, very good guess.
2 THE CHAIRMAN: Oh, yes. That's the point.
3 MR McGRORY: Yes. I am in agreement with you, sir.
4 Then let's have a look at just what happened in the
5 Atkinson household that morning. The phone call is made
6 at 8.37 from the Atkinson household to the Hanvey
7 household. Atkinson came in at 3.30. He is called out
8 again at 5.30. There is evidence -- the phone call is
9 made at 8.37. What Eleanor Atkinson says is that the
10 McKees had stayed overnight. They had called by
11 unexpectedly. They stayed overnight. She had to move
12 a daughter from one bedroom to another to accommodate
13 them. It is a small house. They got up. She is making
14 a cup of tea. Atkinson had come back in after
15 the recall, she said, around 8 o'clock, but
16 Constable Neill spoke to him when he was still in the
17 police station at 8.07.
18 So in our respectful submission he couldn't have
19 been back in, even if he put down the phone, got in his
20 car and went straight home, much before 8.15, 8.20. So
21 the phone call is made maybe 15 to 17 minutes later.
22 They say that Atkinson had gone straight back to bed,
23 had not crossed with the McKees at all, which he can't
24 have done in their case for them to have needed to have
25 made a phone call.
77
1 Just the sheer unlikelihood of this, we submit,
2 suggests that it is inconceivable that that's how the
3 phone call took place. If Atkinson is coming in around
4 8.20, even if the McKees were there, he is bound to have
5 seen them, and even if they were there, why didn't they
6 just ask him? I mean, he was only just in the door.
7 Eleanor Atkinson would have known that. You know, he
8 says, "I go to sleep very quickly". The whole thing, we
9 submit, is just a nonsense. The story just doesn't
10 stack up once you start to break it down. That's just
11 leaving aside Andrea McKee's evidence and the obvious,
12 we submit, honesty of it in general.
13 Once you break the evidence down, in our respectful
14 submission, the Panel has to come to the conclusion that
15 certainly the phone call was not made in the way in
16 which the Atkinsons claim it was made via the McKees.
17 The evidence is overwhelming, we submit.
18 Now, once the Panel comes to that conclusion, then
19 it has to ask itself the question: could he have made
20 the phone call?
21 In our respectful submission, there is really no
22 other conceivable explanation. Once the Atkinsons'
23 excuse for how the phone call was made or false
24 explanation for how the phone call is made collapses,
25 then the compelling inference is the phone call was made
78
1 by Atkinson himself or his wife, or his wife, but we
2 submit that it was almost certainly by Atkinson himself.
3 This is why we submit that it is relevant that
4 Hanvey told Clarke that he rang the next morning,
5 because he knew that Atkinson had phoned him the next
6 morning. In his eyes, that was a demonstration of how
7 valuable Atkinson was to him, because he went to the
8 trouble to ring him the next morning.
9 If the Panel comes to the view that, indeed,
10 Atkinson did make the phone call to the Hanvey
11 household, then the next inference is that it was for
12 some questionable purpose. It is highly unlikely that
13 it was for any other purpose than that which
14 Tracey Clarke stated she was told by Hanvey.
15 Now, the Panel must also ask itself: why would
16 Atkinson do this? Why would he do it? The Panel has
17 heard evidence from Atkinson himself that around the
18 time of the Anglo-Irish agreement he was one of those
19 policemen who had to enforce the ban on the march
20 through the tunnel in 1985. That caused him some
21 problems. I think his house was attacked at some point.
22 It is not in evidence, but Professor McAvoy has
23 submitted a very comprehensive report in which he
24 outlines the political climate at that time and
25 graphically describes how the fact that the RUC stood up
79
1 to the Orange Order at the time of the Anglo-Irish
2 agreement and the ban on those marches in 1985 raised
3 significant tensions for and within the Police Service
4 for its own community. In fact, there is evidence of
5 some tension between Atkinson and Hanvey senior about
6 the fact that he was involved in the stopping of those
7 marches at that time.
8 So we submit that is evidence of a potential motive
9 as to why Atkinson would want to ingratiate himself with
10 the Hanveys, to assist Hanvey, over and above the fact
11 he knows him, that he teaches his daughter, that he is
12 involved in the Tae Kwon Do club with him. Why else
13 would he do that, one has to ask oneself. There is
14 a motive for doing that, in that --
15 THE CHAIRMAN: You mean to win their good opinion of him
16 over, despite the bad order in which he might have been
17 because of Drumcree?
18 MR McGRORY: Yes, that would have been playing on his mind.
19 The opposite side of the spectrum would have been he
20 declared that he had seen Hanvey, described what he had
21 done and became a prosecution witness against Hanvey in
22 any potential prosecution.
23 One might well say, if he wanted to keep himself
24 right with the Hanveys, all he had to do was keep silent
25 about that, but the evidence, we submit, would suggest
80
1 he didn't. He went that one step further
2 THE CHAIRMAN: Can you please help us about this? What
3 reason would he have to want the good esteem of the
4 Hanveys? The reason I ask is this. He probably
5 wouldn't want it to be spread around, because that would
6 be dangerous for him. So why would he want the Hanveys'
7 good esteem?
8 MR McGRORY: Well, he works in the same building as
9 Eleanor Atkinson. I am not saying that was necessarily
10 a driving motive, but he at least has that contact. He
11 has the contact with Allister Hanvey through the
12 Tae Kwon Do club. We know that Allister Hanvey's father
13 had a very dim view of him. So if ever there is
14 somebody that he might help, in order to rehabilitate
15 himself within the community as one of them, as someone
16 who would stand with his own community against all of
17 these allegations made by Catholics, Allister Hanvey was
18 a good person to do it with. The material is there to
19 infer that that is at least a potential reason why he
20 would risk his career and risk potential imprisonment by
21 doing that.
22 It may appear reckless, but in our submission
23 reckless it was, on the spur of the moment, perhaps,
24 when he went back in off duty at 8 o'clock in the
25 morning. It was ill-judged. He was not to know that
81
1 Tracey Clarke -- that the person he was helping would go
2 and boast about it to Tracey Clarke, who would then go
3 and tell the police. He had not that degree of
4 foresight. He was careless. He was reckless. But that
5 was how much he wanted to rehabilitate himself
6 THE CHAIRMAN: Might there have been that we should consider
7 a reason, simpler, that he was returning a favour for
8 what Hanvey was doing to bring his daughter on in the
9 art of Tae Kwon Do?
10 MR McGRORY: That is relevant, sir, I think, to show that he
11 was closer to Hanvey than either of them are letting on.
12 I don't think that would have necessarily specifically
13 motivated him to take those risks, but certainly if he
14 was to choose to help anybody, that would be why he
15 chose him, because he had a close connection with him,
16 in that this fellow was held in high esteem as
17 a Tae Kwon Do guru. His daughter maybe obviously held
18 him in high esteem. She was being taught by him. It
19 brought him a lot closer to the Hanveys than anybody
20 else. It might have been a motivating factor in that
21 sense, that it was perhaps why he chose to help Hanvey.
22 Also, he had the means to help Hanvey, in that they
23 obviously had his phone number. I mean, he is one
24 person that they could easily contact. It was
25 a terrible mistake and a terrible misjudgment on his
82
1 part in respect of his risk assessment of whether or not
2 he could get away with doing such a thing.
3 REV. BARONESS KATHLEEN RICHARDSON: Of course he didn't know
4 there was going to be a murder investigation, did he?
5 MR McGRORY: No. At this stage, it was a GBH, and
6 especially at the time he made the phone call, it
7 wouldn't necessarily have been a murder. He might have
8 shrunk from doing it, had he perhaps known that that
9 would have been the case. That would contribute to the
10 fact he thought he could get away with it.
11 But for all of those reasons we submit there is
12 an inescapable inference that Atkinson made the phone
13 call. Then that factors back to what I have said
14 earlier about the Land Rover police.
15 It is also relevant, of course, to subsequent
16 submissions that will be made about the manner in which
17 Atkinson was investigated within the Police Service,
18 because, in order to make a critical evaluation of the
19 investigation into Atkinson's wrongdoing, one has to
20 make -- come to a determination as to whether or not he
21 made the phone call in the first place.
22 If I may say so, I think it is perhaps symptomatic
23 of the extent to which people within that community felt
24 that they were invincible, because the police force
25 belonged to them, not necessarily in any respect because
83
1 we heard much evidence from those young Loyalists who
2 came in great numbers to tell us very little, that many
3 of them had been in trouble before, that they didn't
4 necessarily think very highly of the police. They
5 certainly weren't helping the police. The police had
6 a dim view of them generally.
7 One can accept that, but, when it came to the
8 crunch, that there was an allegation that one of them
9 had been involved in the beating of a Catholic, that
10 Reserve Constable Atkinson was going to take the extra
11 step of helping out one of his own and very much one of
12 his own as he saw it.
13 The confidence with which the Hanveys received that
14 information demonstrated almost an expression of that
15 was their right and they moved on accordingly before it
16 all began to fall apart.
17 If I could move on, please, to another issue
18 altogether. Give me a moment to get my notes together.
19 That will be the investigation or the conduct of the
20 police who were the immediate superiors to those in the
21 Land Rover. I group the two of them together. It is
22 P89 and Inspector McCrum. P89 is the sergeant who was
23 responsible for sending the Land Rover out and arrived
24 at the scene in the middle of the trouble towards the
25 end of the trouble along with Inspector McCrum.
84
1 These two gentlemen collectively had quite a degree
2 of responsibility, P89 specifically for the briefing to
3 the police officers in the Land Rover before they go
4 out, and the allocation of resources, and P89 and
5 Inspector McCrum together in terms of what they did when
6 they arrived at the scene just on the cusp of 2.00 am as
7 Robert Hamill and D were being put into the ambulance
8 and taken off.
9 We have made submissions that the briefing that P89
10 gave the officers going out in the Land Rover was
11 inadequate. It is accepted that there was no specific
12 intelligence or information given to the officers by P89
13 about any function in St Pat's or, indeed, that there
14 would be a coach full of young Loyalists coming back
15 from the Coach Inn in Banbridge.
16 There is evidence this was a known flash point.
17 There is also evidence from Inspector McCrum that it was
18 not uncommon for one of the patrol cars on duty on
19 a given Saturday night to be sent out to the Coach Inn
20 in Banbridge, because there was potential trouble even
21 there as they were getting on to the bus, but the
22 resources that were available to P89 were the Land Rover
23 in terms of the town centre and the patrol cars. Only
24 the Land Rover was tasked to go to the centre of
25 Portadown without any briefing about the potential
85
1 risks.
2 Now, one might also say they ought to have known
3 that anyway. I mean, it was so obvious that if there is
4 a crowd coming off the bus from the Coach on a Saturday
5 night and if there is a crowd coming down out of
6 St Pat's, down Thomas Street potentially, they ought to
7 have taken all that for granted, and that is one
8 possible inference that you might make. Indeed, I think
9 there was evidence there were regular functions in
10 St Pat's.
11 Maybe P89 didn't think he needed to be that
12 specific. He said they understood what public order
13 duty meant, but the fact is they were not given any
14 specific detailing about the potential risks in that
15 sense. That is a potential criticism of P89.
16 It also raises the question of: was it enough to
17 send the Land Rover into Portadown centre that night on
18 their own? We had three reservists and only one
19 fully-commissioned police officer. I have already
20 submitted in relation to the inadequacies of some of
21 those people in the Land Rover, but what one might
22 consider also is one of the patrol cars that had been
23 tasked to be in Portadown at a specific time.
24 The principal criticism we have of these two
25 gentlemen is in the abject failure of either one of
86
1 them, or both of them, to ascertain the extent of the
2 injuries. We submit that there were very significant
3 consequences to that failure. There is a conflict in
4 the evidence between the two of them slightly. P89 --
5 first of all, Inspector McCrum -- they arrive at the
6 scene together just before 2 o'clock. They are briefed
7 by Constable Cooke who says that he briefed them
8 together. He believes he gave them a good account. Of
9 course, the ambulances are still there. McCrum has
10 claimed that no-one told him there was serious injury.
11 He is then in slight conflict, we submit, with P89
12 as to whose idea -- more than slight conflict -- it was
13 to send P89 to the hospital. P89 said it was his own
14 initiative and Inspector McCrum has said he sent him
15 there. Either way, the first submission we make is that
16 it ought to have been obvious to them that there were
17 ambulances there and people were stretchered in. Cooke
18 is quite clear that he gave them a fairly detailed
19 briefing. So they must have known this was at least
20 serious enough to merit people being taken away in
21 ambulances. Of course, they knew they had gone to
22 a hospital. P89 went to a hospital to find out.
23 Inspector McCrum said he sent him there.
24 Also in respect of McCrum, while I am on the subject
25 of him, I think it is Detective Constable Keys who was
87
1 the CID officer who was called out eventually. He says
2 he was the one who sought the recall of the Land Rover
3 crew to get a more detailed briefing. I think McCrum
4 had told Inspector Jackson, during her enquiry, that it
5 was he who had done that. So there is a conflict there
6 as well between Keys and McCrum.
7 In any event, there were significant consequences to
8 the failure to ascertain at the earliest possible
9 opportunity the extent of the injuries to Robert Hamill
10 and D.
11 Those consequences -- before I get on to the
12 consequences, 89 goes to the hospital and he leaves
13 without finding out what happened. I mean, he said he
14 was met with some hostility from some one of those
15 present who may or may not have been the family member.
16 He accepted he didn't know it was a family member. He
17 did say, to be fair to him, he didn't think it was
18 personal. It was to do with the uniform. A police
19 officer ought to be robust enough to be able to take
20 some criticism like that on the chin, but still carry
21 out the purpose for which he was attending the hospital,
22 which was to find out what happened.
23 He went on to say that he managed -- spoke to one
24 nurse or something, but it was inconclusive and he went
25 on. So he has left the hospital without fulfilling the
88
1 purpose for going there in the first place.
2 Inspector McCrum says he sent him there, but if he
3 sent him there, he didn't follow it up to find out what
4 it was he had found out. Inspector McCrum does not
5 realise that there is something serious until much later
6 on when he phones the hospital, I think maybe after
7 3.00 am.
8 The consequences of, between the two of them,
9 failing to find out the fact that two people were
10 seriously injured here, even the fact that one of them
11 was very seriously injured, they didn't need to know,
12 but just they were unconscious and it was in the realms
13 of a GBH rather than a minor assault, but flowing from
14 that was the fact that the scene was not cordoned off.
15 There was no forensic protection put in place at the
16 time. There was no debriefing of the officers before
17 they went home, sitting them down, finding out who saw
18 what, getting descriptions from them of who did what.
19 That in turn, had it happened, would have led to
20 an identification process, narrowing down the potential
21 suspects, many of whom appear to have been known to
22 these police, cross referencing what each other had said
23 to see, for example, what back-up officers had said
24 about Lunt and all of these people, what they were
25 doing. If there was cross-referencing between the two,
89
1 one might have been able to add a description of
2 clothing, one a description of behaviour and so forth,
3 adding in names.
4 This is one of the reasons why we submit that the
5 Inquiry analysis into what the police failed to do
6 necessitates the identification of those who did what to
7 Robert Hamill. It is difficult to critically evaluate
8 the importance of the failures to take these steps of
9 which I am speaking in terms of debriefing,
10 identification processes and so forth, without
11 understanding the fact that those officers between the
12 police and the Land Rover and the follow-up officers
13 between them had a lot of valuable information as to
14 what these people did.
15 So in order to come to a view that the consequences
16 of not finding out what had happened, the extent of the
17 injuries, if the Inquiry is of the view that these
18 things were not done because of that, then it has to
19 evaluate how damaging to the investigation was the
20 absence of these steps.
21 In our respectful submission, in evaluating how
22 damaging it was to the investigation, it has to take
23 a view that this information about what Lunt was wearing
24 or Hobson was wearing or what any of them did was
25 missing in terms of contemporaneity of what happened.
90
1 We also have a criticism to make in our written
2 submissions of P89's failure to record himself. I think
3 his first statement is not made until 7th May. He then
4 makes another statement on 15th May. Then, of course,
5 there is the bizarre recollection of the comment that
6 Atkinson made to him about Hanvey and his potential
7 danger as a Tae Kwon Do expert, which he did not reveal
8 until 2000.
9 So aside from the fact that the failures of these
10 two officers to engage in a detailed debriefing, which
11 they would have done, they say, had they known how bad
12 things were -- P89 himself did not actually sit down and
13 write down his own recollections. That, for example,
14 would have been a very, very valuable piece of
15 information for the police to have had on the night.
16 The importance of this we cannot over-emphasise.
17 What would have happened, we submit, is there would have
18 been hot pursuit. I mean, even if they had found them
19 at the party, they had not even gone home. So the
20 forensic value of tracing them that far, at that time,
21 if they had been in hot pursuit, would have been
22 enormous.
23 Of course, it is days before any significant
24 information comes into the system. We accept --
25 THE CHAIRMAN: I am not quite clear, Mr McGrory. If they
91
1 had learned from P89 what he had been told by Atkinson,
2 how would they have known to go to the party?
3 MR McGRORY: Sorry. I don't make that direct link, but, for
4 example --
5 THE CHAIRMAN: I can see that later, when they learned from
6 some, not from all, that Hanvey had been there, there
7 was a source of enquiry, but on the night, which is what
8 you were suggesting ...
9 MR McGRORY: I didn't mean to suggest that. That's my
10 fault. I have said the two in the same breath. They
11 were, in fact, entirely separate submissions. You are
12 quite right to point that out.
13 THE CHAIRMAN: We will ignore that.
14 MR McGRORY: Yes. I will move on.
15 I don't think I can say any more about those two
16 really. The damage that they caused this police
17 investigation in our submission was very, very
18 significant.
19 I would like to move on now to the next stage in the
20 police ladder, which is the detectives, if I may.
21 We have dealt with Chief Superintendent McBurney and
22 Inspector Irwin together in our written submissions:
23 I posed the question in my written submissions that
24 Count Lafeu, in "All's Well That Ends Well", posed to
25 the clown, which was, "Whether thou dost profess thyself
92
1 a knave or a fool". The clown's answer was, well, that
2 depends on the master he was serving.
3 It is our submission that there may be three
4 explanations for the conduct of this investigation by
5 Chief Inspector McBurney. One is that there was
6 a genuine plan, rightly or wrongly, to treat Atkinson --
7 the allegation that Tracey Clarke had made about
8 Atkinson separately as a separate investigation, that
9 to -- even in the belief that they had received a false
10 alibi on his behalf about the phone calls from the
11 McKees, that that should simply be a part and broken
12 down at some later stage when the opportunity arose, and
13 that the opportunity just never arose. That was
14 a genuine plan. That's one potential explanation for
15 the way in which he went about this investigation.
16 Another potential explanation is that he just made
17 a complete mess of it. That may have been -- you know,
18 he will say, and I have no doubt it will be said on his
19 behalf, that that was not a bad plan, and, had it worked
20 out, he would have been hailed as a genius, because he
21 would have got Atkinson and all of them in the long run
22 "in the long grass".
23 There is another view of it expressed by the
24 independent expert to the Inquiry on policing matters,
25 Mr Murray, that this was completely the wrong way to go
93
1 about this, that he made a complete mess of it. At
2 first, Mr Murray took the view that this had to have
3 been a deliberate subterfuge and a conniving in the
4 covering-up of this allegation
5 THE CHAIRMAN: So you are saying on this hypothesis there
6 was a deliberate shielding of Atkinson.
7 MR McGRORY: That's the third. The middle explanation is he
8 made a mess of it, but with good intentions. The third
9 explanation is that this was a deliberately orchestrated
10 cover-up and deliberate withholding of key evidence
11 which sought to challenge the alibi that Atkinson had
12 put forward in order to buy time for Reserve
13 Constable Atkinson to get himself out of his
14 difficulties.
15 THE CHAIRMAN: Just a moment. To get himself, that is
16 Atkinson, out of difficulties?
17 MR McGRORY: Yes. We advance the contention that this was
18 quite deliberate, he knew exactly what he was doing, and
19 that he has sought to portray his actions as a grand
20 ingenious scheme to get Atkinson "in the long grass", in
21 our respectful submission in the full knowledge that it
22 is highly unlikely that would be accepted as a genuine
23 way to go about this investigation, but we will be
24 submitting he really had no option when he made out that
25 case to this Inquiry, because by then the full facts
94
1 were before it.
2 He is hailed by the former chief constable,
3 Sir Ronnie Flanagan, by Inspector K and by inspector
4 Irwin as a very dedicated and fabulously effective
5 police officer. Therefore, he is no fool. This man was
6 a very experienced police officer in the most difficult
7 of policing circumstances
8 THE CHAIRMAN: Perhaps you should include
9 Superintendent Atkinson there, because they plainly were
10 not buddies -- not Atkinson -- Stewart.
11 MR McGRORY: Yes. Yes.
12 THE CHAIRMAN: He made it quite clear, didn't he, they were
13 not buddies?
14 MR McGRORY: He did. We do not seek to challenge the fact
15 that this was a very effective and experienced and, by
16 and large, dedicated policeman, but it is our respectful
17 submission that this Inquiry has to analyse how he
18 conducted this case and this part of this case, and ask
19 itself the question: well, did he stumble on this
20 occasion, or did he make a mistake, or was he right, as
21 Mr Adair will say, to take this "long grass" view?
22 I would like to take you through the steps he did
23 take before returning to where we say this was palpably
24 the wrong way to go about it.
25 The information comes into the system on 8th May via
95
1 Andrea McKee with Inspector Irwin being the conduit
2 within the police. The statement is made on 10th May by
3 Tracey Clarke herself. The telephone records were
4 immediately sought. Undoubtedly, Detective Chief
5 Superintendent McBurney told everybody about this that
6 he ought to have told. He told Superintendent Hooke on
7 12th May. He told -- he had a meeting with the ICPC
8 also on 12th May and he briefed them of the fact of that
9 information. He had a meeting on 13th May with
10 Mr Duncan and Mr Kitson of the DPP and they were
11 informed of the fact of that information.
12 On 19th May, he got the results of the telephone
13 billing request which he had made. Then there is a gap
14 until 9th September, but up to this point he has told
15 everybody that needs to be told. There are two
16 interviews of Reserve Constable Atkinson about this
17 matter, bizarrely, we submit, not until 9th September.
18 Some four months have elapsed before Atkinson is first
19 interviewed, and he is first interviewed in the context
20 of the Land Rover Inquiry.
21 We asked many of the police witnesses and DPP
22 witnesses about the wisdom of the separation, but this
23 is the point at which they are separated. The
24 investigation is going apace into the murder. There is
25 no doubt about this. The information Tracey Clarke and
96
1 Timothy Jameson gave on 15th May is acted upon. All of
2 these people are arrested. They are all questioned.
3 Whatever forensic analysis can be done is done. There
4 are issues about the searching and whether or not it was
5 necessarily well-thought-out and well directed, but by
6 and large the investigation is proceeding, but absent
7 from that particular investigation into the murder is
8 any immediate action in respect of interviewing Reserve
9 Constable Atkinson.
10 Now, the case has been made on behalf of Chief
11 Superintendent McBurney that it wasn't that he was
12 forgetting about it, it was that he thought it was more
13 appropriate to do it in the context of the enquiry into
14 the behaviour of the Land Rover crew. We respectfully
15 have to question that logic.
16 It has been accepted by many witnesses that it is of
17 great value in a murder investigation and in a murder
18 case -- the ultimate goal of any investigation to bring
19 people to justice -- that, if someone who has committed
20 the offence of assisting an offender after the fact,
21 that if the evidence you have against that person is
22 available to the court of trial, that it helps support
23 the evidence suggesting that the person did the act in
24 the first place.
25 Just to be specific about it, of course, there would
97
1 have been evidence from Tracey Clarke and
2 Timothy Jameson, in respect of Hanvey's conduct towards
3 Robert Hamill on the night that he was involved in the
4 murder, that the court of trial, had there been
5 sufficient evidence to indict Reserve Constable Atkinson
6 for the offence of assisting Hanvey alongside, that
7 would have been of significant value. That would have
8 necessitated Atkinson being arrested and questioned
9 about this matter much, much earlier than September.
10 Even if you allow for the four months and accept
11 that, had they got anywhere in the interview with
12 Atkinson about this matter when they did interview him
13 in the autumn, then he might still have been included on
14 the indictment, in our respectful submission that still
15 does not excuse the delay.
16 The interesting thing is that Tracey Clarke still
17 has not withdrawn her statement at this stage when he is
18 interviewed in September, so why isn't it factored into
19 the main murder investigation? For a detective of his
20 experience, we submit that it is very surprising that it
21 wasn't unless he had some ulterior motive and that he
22 was buying Atkinson time. That, we submit, is
23 a possibility.
24 Then there are the two interviews of Atkinson.
25 There is one is on 9th September and the next one is on
98
1 9th October. On 9th September, Atkinson is arrested and
2 he is cautioned. He is cautioned not just about the
3 allegations of neglect in not getting out of the
4 Land Rover that the police had received, but he is
5 cautioned also about the offence of assisting offenders.
6 So part of the purpose of interviewing him on that
7 occasion was to interview him about the information
8 given to them by Tracey Clarke, and they had available
9 to them the results of the telephone analysis.
10 Now, much has been made of the suggestion that the
11 agreement that the police had with the telephone
12 companies about the sharing of that information
13 mitigated against the fact of revealing they had the
14 information and they needed to ask him politely if he
15 would produce his telephone records. We do not accept
16 that as a valid reason for taking that course.
17 That may well have been the case when gathering
18 telephone records for intelligence purposes. One can
19 understand why the police were happy to have the
20 cooperation of the telephone companies, but when you
21 have an allegation as serious as the one that had been
22 made, that one of those police officers in that
23 Land Rover had tipped off one of the people whom he knew
24 to have been involved in the attack on Robert Hamill,
25 which was the offence of assisting an offender,
99
1 a policeman, of all people, that the niceties of the
2 relationship with the telephone company should not have
3 been observed or should not have been seen as any
4 impediment. Apart from that, they didn't need to upset
5 the telephone company. They had legislation available
6 to them which they could have employed to get that
7 information on a warrant.
8 It is our respectful submission, while we don't have
9 evidence from the telephone companies -- this is
10 a common enough case in this jurisdiction. I think it
11 was accepted by Sir Ronnie Flanagan and others involved
12 in investigation of riots at Drumcree, they frequently
13 used as the basis of their investigations video tapes of
14 what had gone on. What they simply did was they used
15 the legislation under PACE to issue a warrant to seize
16 the material. That's all they needed to do in advance
17 of interviewing Reserve Constable Atkinson about this.
18 So in our submission, there is no logical
19 investigative explanation for taking the step that
20 McBurney took on 9th September of stopping short of
21 confronting Atkinson with the fact of the telephone
22 records and asking him for an explanation there and
23 then.
24 What he did was he alerted him to the fact they had
25 information that there was contact between the police in
100
1 the Land Rover and the murderers. The name of Hanvey
2 was raised. He was asked had he spoken to him, and then
3 he was asked to produce voluntarily his telephone
4 records.
5 The effect of that, in our submission, was to tip
6 Atkinson off of the fact that he needed to explain this
7 telephone call, because Atkinson knows he made the phone
8 call. So he goes home on 9th September with time to
9 come up with some sort of explanation.
10 Now, it may well be said that that gap, in fact,
11 gave Atkinson enough rope to hang himself by going to
12 the McKees and getting them to be the alibis, but great
13 detective and all as DCS McBurney was, he had not the
14 powers of clairvoyance. He had no way of knowing that,
15 if Atkinson was going to come up with some excuse for
16 ringing Hanveys, he would come up with one that brought
17 into the equation people whom the police already knew
18 couldn't have been involved in making the phone call
19 because of what they knew about Andrea McKee's role in
20 providing information and sitting alongside
21 Tracey Clarke while she told it to them. So it is
22 beyond comprehension he could have possibly known that
23 would be the case.
24 From an investigative point of view, it is our
25 submission that he should have struck while the iron was
101
1 hot. He should have had the information on a warrant
2 about the phone calls. He should have pinned Atkinson
3 to his colour, and Lord knows what he would have said
4 about in that first interview. He certainly wouldn't
5 have had the time to go and get somebody to back up what
6 he was going to say. So he would have been pushed into
7 saying anything. He have might have said, "I can't
8 explain that. He might not have answered the question.
9 Then adverse inferences could have been drawn from that.
10 What he did was he went away and fixed up an alibi,
11 albeit a very imperfect one. .
12 When we get to the second interview on
13 9th October --
14 THE CHAIRMAN: Just before you leave the first interview, it
15 may be we shall be addressed along these lines.
16 Atkinson might well have said, "Well, I can't answer
17 that. I have to go and make some enquiries. He may
18 have simply exercised his right of caution. In either
19 of those cases, what should then have been done?
20 First of all, do you accept those are realistic
21 possibilities?
22 MR McGRORY: Yes, I must. He might or might not, though.
23 THE CHAIRMAN: I am just giving you the opportunity to deal
24 with the point which may be put against the point you
25 are raising, so we know what you say about them.
102
1 MR McGRORY: He might have taken that course, but -- and
2 then he might have come back also with the McKees at
3 some subsequent point, but we can take it no further
4 than to say he might not have. He might have gone
5 a different route.
6 One thing that was for certain is, once you give him
7 the opportunity and don't ask him to give any
8 explanation, you are handing him on a plate the
9 opportunity to go and fix up an alibi.
10 Now, he may have thought of that himself and created
11 the opportunity by saying, as you say, sir, "I can't
12 answer that"
13 THE CHAIRMAN: You see, we may be hearing a submission that
14 Atkinson was quite astute enough not to commit himself
15 until he had made sure of his ground.
16 Now, what do you say about the proposition he would
17 have been quite astute enough to do that? Because this
18 is something which, if this is on the cards,
19 an investigator has to consider, hasn't he?
20 MR McGRORY: Yes. I have to accept that. He might have
21 been astute enough to do that. He might have been.
22 Then he might not have been. He was not astute enough
23 not to make the phone call in the first place.
24 So he's a man, in our respectful submission, capable
25 of misjudgments in respect of his own criminal judgment.
103
1 He may have taken that course, but I don't think it has
2 been advanced by Superintendent McBurney anywhere -- and
3 I am sure I will be corrected if I am wrong in this --
4 that that, in fact, was his thinking, "I am not going to
5 do this now because he is only going to bat me off by
6 saying 'I can't explain that. I need time to go and
7 investigate that. But I didn't make it'."
8 I don't think Superintendent McBurney advanced that
9 as a reason. That's not to say it won't be advanced in
10 argument as a potential reason by someone on his behalf
11 REV. BARONESS KATHLEEN RICHARDSON: If, of course, he is
12 presumed to be innocent, then he would have had to go
13 and check with his household that no other phone call
14 was made for what purpose?
15 MR McGRORY: That is true. My point is a narrow one, which
16 is that, from an investigative point of view, there was
17 maximum pressure on him to give an explanation, if
18 confronted, without notice, apart from, perhaps,
19 pre-interview disclosure, of the fact of the telephone
20 call, that as an investigator and an interrogator, the
21 best possible practice in investigating that particular
22 allegation would have been to have confronted him at the
23 earliest possible opportunity and without warning. By
24 giving him the warning, you only give him the
25 opportunity to make up an alibi.
104
1 Now, between the 9th September interview and the
2 9th October interview, apart from the concoction of the
3 alibi, as we say it is, the other significant event on
4 19th September was the decision of the ICPC that it was
5 outside its remit to continue supervising.
6 Now we have absolutely no explanation as to why they
7 did this, and we will come to this perhaps specifically
8 a little bit later, if you don't mind, but the fact was
9 that they took that decision between the two interviews.
10 When it comes to the second interview of Atkinson and
11 thereafter in the continuance of that investigation the
12 ICPC are not supervising it
13 THE CHAIRMAN: Before you go on to that, can you help us
14 about this, please, because again it may be an argument
15 we shall have to consider?
16 There was, in fact, an advantage in letting McBurney
17 create an alibi, because that gave a better way into the
18 conspiracy. There would be a weaker link than he was.
19 Now, that's something that has been touched on in
20 questions and we shall have to consider, and so it is
21 only right you should tell us what your submissions upon
22 it are.
23 MR McGRORY: Absolutely. That again is attributing to
24 DCS McBurney the qualities of clairvoyance, in our
25 submission, because he has got to then consider, "I will
105
1 deliberately only drop him this much information, that
2 we have the information there is some contact here and
3 we want to look at your telephone records", to provoke
4 him into giving what is -- might be a wonky alibi. That
5 is a wrong way to go about it, because he might have
6 come back with a good one. He might have come back with
7 a better one. He might have gone to somebody other than
8 the McKees, who couldn't have been shaken. Our
9 submission is that McBurney could not possibly have
10 known that when he went into that interview on
11 9th September. He has never suggested that that was
12 necessarily his thinking. I know it has been advanced
13 on his behalf that that might have been a way to go
14 about it. Nor is any of this recorded anywhere, by the
15 way. I am going to come to that in a moment,
16 particularly in terms of the report that did go in.
17 THE CHAIRMAN: We have Irwin's evidence, don't we, about
18 what McBurney said to him after Andrea McKee had given
19 her false alibi statement that is said to be false?
20 MR McGRORY: Yes, but that's afterwards. Then the key in
21 relation to that question is, when they got the wonky
22 alibi, they didn't do anything about it. They took
23 the -- McBurney sent Irwin out to take the alibi
24 statement. McKee comes in first on 9th October, the day
25 that Atkinson gave the information. Obviously, he had
106
1 it set up. He comes in on 9th October. While he is
2 still there, they send somebody out to see McKee.
3 I think, in fact, McBurney himself took the statement on
4 9th October. But on 29th October is the occasion when
5 DI Irwin takes the statement from Andrea McKee.
6 Now, we know she is lying about it -- I submit she
7 is lying about it. If you come to the view she was
8 lying about it on 29th October, then she has made
9 a lying statement. The fact is the police knew she was
10 making a lying statement at the time and they took it.
11 Now, there are two questions here: whether or not
12 they should have taken the statement at all. Perhaps
13 they should be have stopped her and cautioned her, "Hold
14 on a minute here", because it was Irwin who was taking
15 the statement and it was Irwin who received the
16 information from her in the car. Irwin goes to McBurney
17 before he does and McBurney says, "Go ahead and take
18 it."
19 In one sense, yes, you are letting her make an alibi
20 statement which they already know is likely to have been
21 false in view of their previous experience of
22 Andrea McKee, and they let her make the statement.
23 I don't actually criticise Inspector Irwin for taking
24 the statement, because potentially he had a very
25 valuable lying alibi statement which then could have
107
1 been broken in a subsequent investigation of
2 Andrea McKee.
3 Whether that would have been proper or not is maybe
4 another matter, but one can see the logic in that
5 THE CHAIRMAN: We have Mr Kerr's evidence about that, that
6 there was an obligation to take a statement. If he is
7 wrong in law about that, you can tell us.
8 MR McGRORY: I don't think he was. I don't have
9 a submission he was wrong in law about that, but it is
10 what you do with it when you get it that is the
11 important thing.
12 THE CHAIRMAN: Yes.
13 MR McGRORY: In our respectful submission, there was the
14 golden opportunity to then perhaps arrest Andrea McKee
15 and caution her and interview her about having just made
16 what is potentially a lying statement and asking her to
17 explain how come she did not say anything about any of
18 this when she sits with Tracey Clarke through
19 an interview or when she goes to see Inspector Irwin at
20 the graveyard.
21 So it is incomprehensible, we say, that they didn't
22 take action once they had got that, because all of the
23 evidence from the police is that they didn't believe her
24 when she made the statement. They just didn't believe
25 her.
108
1 So there is a point at which there at least should
2 be some sort of a record. Even if there was a "long
3 grass" policy, they could have recorded it, but there is
4 no record of it.
5 Our submission is what they should have done is
6 taken immediate action to break the alibi
7 THE CHAIRMAN: Again, forgive me for interrupting you. It
8 is not because I am wanting to confound you, but we are
9 going to be addressed, no doubt, about various of these
10 points I am putting to you. It helps us to know what it
11 is you say in answer to them.
12 You will remember Irwin's evidence about -- these
13 are not his words -- in effect, McBurney was rubbing his
14 hands about the fact that Andrea McKee had made a false
15 alibi statement, but, "Not now", he was saying. At this
16 stage he thought they would not crack Andrea McKee
17 because she was under the influence of her husband, but
18 to wait.
19 Now that was Irwin's evidence. Do you challenge
20 Irwin's evidence about what McBurney said to him and, if
21 not, what do you say about the -- call it strategy, if
22 you like, but what McBurney said he was going to do?
23 MR McGRORY: We do not make the allegation that Irwin is
24 inventing that reaction on McBurney's behalf, because
25 Irwin has reservations about taking it in the first
109
1 place --
2 THE CHAIRMAN: Oh, yes.
3 MR McGRORY: -- which he voiced before he took it. Then
4 obviously he is anxious to know, "What are we going to
5 do with it?" He makes the case that McBurney was
6 rubbing his hands, as you say, but everything about this
7 was driven by McBurney. Every action that Irwin took
8 was taken at the behest of McBurney.
9 It is our submission that if McBurney was engaged,
10 which we say he was, in a deliberate subterfuge here, he
11 was not bringing Irwin into the loop, he was buying time
12 on Atkinson's behalf, and he was not going to admit that
13 to Inspector Irwin.
14 THE CHAIRMAN: Forgive me. You are not, I think, dealing
15 with what Irwin said was McBurney's point: that now was
16 not the time to strike, because he would not be able to
17 crack Andrea McKee at this time. Better to wait.
18 Now, either you say that was a lie to fob off Irwin
19 or you offer some other explanation, but it may be
20 helpful to us to know what you do say about that, as it
21 is something I am sure we shall be asked to consider
22 MR McGRORY: We say that was a lie to fob off Irwin. Irwin
23 had already questioned McBurney about this, this way of
24 going about this investigation, and he was worried about
25 even being sent out to take the statement in the first
110
1 place. McBurney is aware of that. Of course he is
2 going to say to him, "Great, we've got a" -- he knows
3 Irwin knows he has a lying alibi statement more than
4 anybody else, because Irwin was the one who took the
5 statement from her and who met her in the car park. So
6 McBurney keeps Irwin at bay by saying, "Don't worry
7 about it. We have a lying alibi statement. I don't
8 think we should do anything about it right now because
9 she is totally in awe of her husband. We will wait for
10 some other time."
11 That, in our respectful submission, does not stand
12 up to analysis as a prudent investigative strategy. It
13 is leaving yourselves, as policemen, absolutely
14 a hostage to fortune that there might be some
15 possibility that these two people will split up and that
16 Andrea McKee will choose to admit she committed a crime
17 in the first place and then reopen the investigation.
18 The best practice would have been to have confronted
19 her almost immediately afterwards with the fact that she
20 can't possibly be the telling the truth about that.
21 Okay. We have the benefit of having heard her now
22 saying, "Had they done that, I would have cracked
23 immediately".
24 He can be allowed I think enough latitude to say he
25 didn't necessarily know that would be the case, but at
111
1 least he should have tried.
2 What was there to lose? I mean, if he is right in
3 saying, "Okay" -- and he did have the foresight to think
4 they might some day split up, and, "If they some day
5 split up, she might come to us and accept she committed
6 a crime and give evidence against these people", there
7 was nothing to stop them having a crack at her now.
8 She might have taken the course and said, "Oh, no.
9 I just forgot about all of that. I should have spoken
10 up when I was with Tracey Clarke, or I should have
11 spoken up to Irwin", or whatever. That would have been
12 challengeable and she might have cracked. The best
13 possible investigative practice would have been to have
14 moved there and then.
15 Now this, in our respectful submission, is the
16 second point at which best investigative practice has
17 not been taken. The first point at which best
18 investigative practice should have been taken was in the
19 quick move against Atkinson once the telephone bill
20 records came in in May and the confronting of him with
21 them as early as possible and in the first interview and
22 without any opportunity for them to ...
23 THE CHAIRMAN: That's the point you have already --
24 MR McGRORY: Yes, I have made it. The reason I just
25 referred to it again is that then the next investigative
112
1 point at which a major decision is taken, again in our
2 respectful submission, what is best investigative
3 practice is not pursued, but some other practice is
4 pursued, for which there is now given an ex post facto
5 explanation as having potential value, but in our
6 respectful submission, that was clearly not the best
7 investigative practice at the time. That is the
8 evidence still of Mr Murray.
9 So in our respectful submission then, you must begin
10 to question: if this extremely able and extremely
11 experienced police officer is departing from best
12 investigative practice, why is he doing that? Either he
13 has some other highly unorthodox plan which he says he
14 had, which he told the Inquiry he had in his interviews,
15 which he told Irwin he had, and Irwin says he believed
16 him, or he has some ulterior motive.
17 Now, the next significant stage in this is the
18 submission of the report.
19 MR UNDERWOOD: I wonder, if my friend is moving on, whether
20 this would be a convenient moment?
21 THE CHAIRMAN: Yes. A quarter of an hour.
22 (3.20 pm)
23 (A short break)
24 (3.35 pm)
25 MR McGRORY: Thank you, sir, members of the Panel.
113
1 THE CHAIRMAN: You are going on to the submission of the
2 report?
3 MR McGRORY: Yes. I think I will just take you to the
4 report, the relevant section of the report. It is
5 [09082], paragraph 135 of the report. The bottom few
6 lines deal with it really. Having found no evidence --
7 the bottom four lines. Is it up on your screens?
8 SIR JOHN EVANS: No.
9 MR McGRORY: [09082]. I don't even need it up at all.
10 You will recall that a separate report is submitted
11 to the DPP under the heading of the neglect file or the
12 neglect allegation in which Detective Chief
13 Superintendent McBurney deals with the allegation
14 against Reserve Constable Atkinson that he had tipped
15 off Hanvey.
16 First of all, we make the submission it should not
17 have been separated in that way. We have made the
18 submission it should have been included in the main
19 murder file so that the DPP directing officer, who had
20 been told about it initially in the form of
21 Raymond Kitson on 13th May 1997, would have been
22 reminded at least that that information had been in the
23 system.
24 THE CHAIRMAN: Just remind me, Mr McGrory, the neglect and
25 tipping off file, that was, in fact, wasn't it, the file
114
1 that was to be sent to the Director?
2 MR McGRORY: Yes.
3 THE CHAIRMAN: Was it sent to the Director at the same time
4 or nearly contemporaneously with the murder file?
5 MR McGRORY: I don't believe so. It went in towards the end
6 of December 1997. Mr Underwood will keep you right.
7 I think it went to a different directing officer.
8 MR UNDERWOOD: I think one was the end of July and one was
9 the end of December, very roughly.
10 MR EMMERSON: I think they both initially went to the same
11 directing officer but Mr Kitson re-directed it.
12 THE CHAIRMAN: Which went first?
13 MR EMMERSON: The murder file went first.
14 THE CHAIRMAN: So that was in July and the other file in
15 December?
16 MR McGRORY: Yes.
17 SIR JOHN EVANS: I think the point you are making is that
18 the neglect file and covering tip-off file are one and
19 the same.
20 MR McGRORY: Yes. It is dealt with, and I think Mr Emmerson
21 had interjected during the previous hearing, the
22 directions hearing, when I appeared to be suggesting --
23 or maybe it was during the evidence, when I appeared to
24 be suggesting -- in fact, it was when I was questioning
25 the Northern Ireland Office chap, Simon Rogers, that
115
1 I appeared to be suggesting that it was not going to the
2 DPP. That was not what I was trying to get at.
3 What I was trying to get at is that by virtue of
4 splitting it up into two entirely separate files, it has
5 the effect of treating it entirely separately and not
6 really as part of the murder, which, in our submission,
7 it should have been treated as, but in any event, it was
8 probably not going to have that much of a difference
9 anyway because of what it is was said about it anyway,
10 and that is that [09082] at the bottom four lines where
11 he says:
12 "Having found no evidence other than the telephone
13 billing to substantiate the allegation of Witness A, one
14 can remain sceptical, but there is absolutely no other
15 evidence to substantiate the allegation by Witness A.
16 I therefore recommend 'no prosecution'."
17 Now nowhere in this report is there any hint that
18 there was at least a degree of scepticism about the
19 alibi that was put forward. If it is accepted that
20 Chief Superintendent McBurney had a "long grass" plan,
21 one would have expected it to have been in this report,
22 at least some indication to the DPP.
23 We already have a situation where there is not
24 a single record of it within the police material. We
25 have heard all of this evidence how he was the type of
116
1 individual who, while a very effective investigator,
2 maybe eschewed the niceties of record-keeping. He kept
3 no policy book. He didn't even keep a secret policy
4 book. He chose to keep it all in his head.
5 That may or may not have been the case. There is
6 some evidence that that was the sort of policeman that
7 he was. We don't have any such record within the police
8 system, where you have would have expected one, of
9 a plan. There just simply is not one. There is no
10 policy book, no secret policy book, nothing.
11 Now Superintendent McBurney put forward reasons for
12 that in his interview, which is that he didn't want it
13 in the system in case there was some leakage and it
14 might get through to Atkinson or might put Tracey Clarke
15 at risk.
16 We reject that reason that was put forward on
17 a number of grounds, not least the fact that Hanvey knew
18 very well that Tracey Clarke was the source of this
19 information, and was the witness. I mean, she told him
20 within days she had been to the police when she actually
21 had not. He would have known, when somebody did go to
22 the police and there was a witness, that was almost
23 certainly her. Then, when she withdrew, she almost
24 certainly told him she had withdrawn. So this business
25 of protecting Tracey Clarke and not recording things,
117
1 they don't add up, in our respectful submission, because
2 it wasn't going to protect Tracey Clarke one way or the
3 other. They knew exactly who she was.
4 So the fact she had said these things could well
5 have been recorded, but nowhere in the police records
6 does Superintendent McBurney record his "long grass"
7 plan or the reasons for his "long grass" plan. There is
8 no supervision of his "long grass" plan, because it is
9 not recorded. It is all in his head, but in the file
10 that goes to the DPP he goes to great lengths to say,
11 "We are sceptical" -- it is very cleverly done, in our
12 submission -- "about Atkinson. We have this information
13 about Tracey Clarke, but Atkinson has come forward with
14 an innocent explanation for the making of the phone
15 call. We have interviewed these people. This is what
16 they say. We remain sceptical, but there you are.
17 There is no other evidence to substantiate the
18 allegation by Witness A."
19 Now that's very revealing in what it leaves out. In
20 our respectful submission, had he been genuine about the
21 fact that he had a long-term plan to break this alibi
22 and that he simply didn't believe it, there would have
23 been some expression of that, some record of it
24 somewhere, and there would have been expression of it
25 here, but this is worded in such a way to make the
118
1 reader within the DPP think that there is
2 an unquestionable and reasonably watertight alibi for
3 the phone call put forward by Atkinson that had to be
4 reluctantly accepted by the police, but the reality
5 McBurney is telling us is that, in fact, they didn't
6 accept it. They understood it to be a lie and there was
7 a long-term investigative strategy to wait for some
8 potential split-up in the relationship and for her to be
9 approached at some potentially suitable time, but no
10 record of it and no expression of it here, and we
11 suggest that this was written in such a way as to make
12 sure there was no record of it, because, if there is
13 a record of it, he might actually have to act on it, and
14 if there is no record of it, he may never have to act on
15 it.
16 What we submit is that this is a crime of
17 opportunity on McBurney's part, in that he was handed
18 the opportunity on a plate by the ICPC, who abdicated
19 its responsibility in terms of supervision. The
20 splitting up is no coincidence of the allegation about
21 Atkinson into the neglect file. It takes it away from
22 the relevance of the murder, diverts attention from it,
23 buys time.
24 The expression of scepticism, but saying that,
25 "There is nothing much we can do about this. We have
119
1 this evidence that he's put forward", without revealing
2 that, in fact, he doesn't believe it, doesn't accept it,
3 is worded in such a way as to deflect attention from the
4 reality, which is that he didn't believe it. Had he
5 really intended to go after Atkinson at some point,
6 there would be some record of it, some revelation of it,
7 some expression of it somewhere. It is nowhere. It is
8 nowhere.
9 But on top of that, when he does get the information
10 that, in fact, the McKees have split up in October 1999,
11 it does happen then, almost two years later. He doesn't
12 do anything then either. If he had a grand plan to
13 pounce on the McKees the moment there was some split-up
14 which he foresaw in this relationship, when he could get
15 at her out of the influence of her husband, he had his
16 opportunity again in October 1999 and he didn't take it
17 then either. In fact, he doesn't do anything until June
18 of 2000.
19 Now we know that Inspector Irwin has given evidence
20 and said, "If McBurney tells me he had a plan, he had
21 a plan". Now, that is Inspector Irwin's evidence. It
22 is the height of our submission that we are sceptical
23 about it, but we have no evidence to contradict him in
24 that.
25 THE CHAIRMAN: You mean contradict Irwin?
120
1 MR McGRORY: Contradict Irwin. He said McBurney gave him
2 this explanation all along every time he asked him about
3 it or raised it. If McBurney tells him that, he accepts
4 it. We have to accept that from him. We are unable to
5 challenge him. We have to question that an experienced
6 inspector would not perhaps have been more challenging
7 of this strategy and the effectiveness of it and why
8 that might be. He is a party to this report, although
9 he did not write this section. He is very much a part
10 of the whole investigation. He was in the interviews
11 with Atkinson. He may have felt that it just wasn't his
12 position to challenge it.
13 THE CHAIRMAN: I am sorry to press you, Mr McGrory, but you
14 said you do not challenge Irwin's evidence, but then you
15 go on. I can follow if you say, "But, with his
16 experience, he ought to have done something", but you
17 seem to be hinting something a little beyond that.
18 I think you have to come off the fence there.
19 MR McGRORY: Yes. It is the height of our submission that
20 he ought to have challenged and he failed to do that.
21 THE CHAIRMAN: Thank you.
22 MR McGRORY: However, what he does do is that he tells
23 McBurney in October 1999 that the information has come
24 into the system, that the McKees have split up, and
25 McBurney does nothing then.
121
1 Now, once again, we have a staging post in the grand
2 plan at which we say, if there was a grand plan, the
3 best investigative strategy would have been to do (a),
4 but he does (b), and it is the accumulation of these
5 staging posts at which you have an opportunity to take
6 what we say is the best investigative practice to do
7 something, and you don't take it but you do something
8 else. Once maybe, but four times?
9 At each one of these staging posts, Detective Chief
10 Superintendent McBurney chose, in our submission, not to
11 take the best investigative practice, which would have
12 been to move on Andrea McKee immediately in
13 October 1999, but he continues to wait.
14 There is some talk about an inquest coming up. That
15 is undoubtedly true. There was a debate going on
16 between the solicitors for the Hamill Inquiry and the
17 coroner about whether it was appropriate to hold
18 an inquest in the circumstances that suggested that it
19 would be absent any evidence from Tracey Clarke and
20 Timothy Jameson, but -- as a reason why he continued to
21 do nothing or he continued to wait to see if anything
22 would happen during the course of the inquest, but in
23 our respectful submission, that's no reason not to take
24 the immediate prudent investigative step in October 1999
25 of talking to Andrea McKee.
122
1 If it is the truth that there was a "long grass"
2 investigative strategy to wait for this opportunity and
3 he had the astonishing foresight to get it right and
4 that there would be a split-up in this relationship, and
5 that these opportunities would present themselves, and
6 there you are, you have it on a plate, in October 1999
7 he does not do anything. This talk about an inquest is
8 nonsense, in our respectful submission. It is
9 a distraction.
10 There was the opportunity and it wasn't taken. Now,
11 that gives away the reality that, in fact, this was
12 about buying time and about doing nothing, and up to now
13 he had gotten away with it.
14 The next stage when something is done is in
15 June 2000. We quote the precise part of Chief
16 Inspector McBurney's interview in our written
17 submissions in which he told the Inquiry interviewers
18 that, when he went to see Andrea McKee on
19 21st/22nd June 2000, he did so off his own bat without
20 speaking to anybody. That's what he said to this
21 Inquiry. He spoke to nobody. He didn't need to speak
22 to anybody. He was in charge. That was his call. That
23 he went to see her once the inquest collapsed, which it
24 did in early June 2000. Then he was going to make his
25 move. Now was the time to do it. There were no other
123
1 shaking tree possibilities left to him. That was when
2 he did it.
3 That was contradicted by his chief constable,
4 Sir Ronnie Flanagan, who had an interview with
5 xxxxxxxxx on 9th June 2000, within days of the
6 coroner making his announcement that he was not going to
7 have an inquest, and xxxxxxxx got a detailed
8 briefing from Sir Ronnie Flanagan about the facts in the
9 case, which were slightly wrong in some respects, but
10 had pretty much the gist of it and a fair amount of
11 detail.
12 He had to get that information from somewhere
13 because he said he didn't know anything about it at all
14 until then. He says he had to have got that briefing
15 from Detective Chief Superintendent McBurney.
16 So Detective Chief Superintendent McBurney either
17 made a mistake when he told the Inquiry interviewers
18 that he spoke to nobody before going to see Andrea McKee
19 or he was lying about that.
20 Now, unfortunately, because the man died and he was
21 not here to give evidence, we were not able to
22 cross-examine him about that, but in our respectful
23 submission that was simply not accurate. What he was
24 trying to do when he told the Inquiry interviewers that
25 was said, was say, "Look, this was in furtherance of my
124
1 grand plan. I did it off my own bat". He had to say
2 that because it had to fit with the fact that he was
3 always going to do something, to show that when he did
4 do something, it was part of the grand plan, but, in
5 fact, he was just reacting.
6 THE CHAIRMAN: Just help me. Did the chief constable say
7 when he pressed and pressed McBurney? Did he give
8 a date for that?
9 MR McGRORY: They are two different things. There are two
10 separate things here. There is the information in terms
11 of him at least seeing McBurney, which we say the chief
12 constable has accepted had to happen before 9th June,
13 when he saw xxxxxxxxxxxbut the second issue is
14 the fact that whether or not when he did see McBurney
15 he, in fact, pushed him to go and see Andrea McKee.
16 That is revealed by a different document and that is the
17 Anthony Langdon document.
18 MR McGUINNESS: Sir, I may be of some assistance. I appear
19 and am instructed on behalf of Sir Ronnie Flanagan.
20 There is something of a confusion here because the
21 document being referred to by Mr McGrory is a document
22 dated 9th June 2000. There is no reference in that
23 document to the new potential opportunity that may have
24 arisen.
25 The briefing that Sir Ronnie Flanagan -- in my
125
1 understanding of his evidence, the date of that briefing
2 is at or about or some time later on in June, because
3 what we have, sir, is evidence that, on 21st June,
4 I think it is, Sir Ronnie Flanagan contacted
5 Sir Alasdair Fraser, who was the DPP, and on either the
6 20th or 21st June he contacted a representative from the
7 ICPC.
8 So Mr McGrory is not quite correct, if he is making
9 the suggestion that, on 9th June 2000,
10 Sir Ronnie Flanagan was aware of the new potential
11 investigative opportunity, albeit he would have been
12 aware of some of the facts of the case, because that's
13 what's recorded in the memo of xxxxxxxxxx. If
14 that's of assistance, sir.
15 THE CHAIRMAN: This can be checked, I am sure, overnight so
16 we have the clear details. Thank you very much.
17 Yes, Mr McGrory?
18 MR McGRORY: There are two issues here. The first issue is
19 the document referring to the xxxxxxxxxx meeting
20 between Sir Ronnie Flanagan and xxxxxxxxxxxxx on
21 9th June is indicative that Sir Ronnie Flanagan was
22 informed and knowledgeable about the facts of the case
23 in order for him to tell them to xxxxxxxxx.
24 THE CHAIRMAN: He knew by then.
25 MR McGRORY: He knew by then. When I asked him where he had
126
1 got that information on 9th June, or before 9th June, it
2 is my memory that he said, "It almost certainly came
3 from Detective Chief Superintendent McBurney".
4 Now, McBurney said to the Inquiry that he didn't
5 speak to anybody before he went to see Andrea McKee. It
6 is pages 180-182 of his main Inquiry interview. I will
7 come back to the specific reference. It is our
8 respectful submission that that contradicts McBurney's
9 assertion to the Inquiry that he told nobody he was
10 going to see Andrea McKee in June.
11 Now it is possible he had a meeting with
12 Sir Ronnie Flanagan on or before 9th June at which he
13 gave him the information about the case, but told him
14 nothing about his plan to go and see Andrea McKee a few
15 days or weeks later.
16 That in itself would be indicative of a submission
17 which would be helpful to a submission, well, in fact he
18 had not even had the idea at that point. It was never
19 an intention, if he didn't tell Sir Ronnie Flanagan that
20 he was going to do it. Either way -- or perhaps that
21 was the opportunity for Sir Ronnie Flanagan to say to
22 him, "You had better do something about it."
23 Now, there is a separate document and that is the
24 Anthony Langdon note of a meeting he had with
25 Ronnie Flanagan in July, on 22nd July. This is the
127
1 document at page [39693]. Point 7 on the document.
2 Anthony Langdon says:
3 "I asked what had precipitated the new criminal
4 investigation. The chief constable said that when the
5 coroner had given 'the gem' to Robert Hamill's family
6 solicitors he himself had 'pushed and pushed' and the
7 re-interview of Mrs McKee followed directly from that."
8 Now the chief constable told Anthony Langdon that
9 the reason why McBurney went to see Andrea McKee was
10 because he pushed him to do so.
11 THE CHAIRMAN: Yes.
12 MR McGRORY: It is correct that that document is silent as
13 to the precise time at which he pushed him. Maybe he
14 didn't push him when he saw him on the 9th -- or before
15 9th June. Maybe it was some time after it, but it
16 contradicts what McBurney says, that this was entirely
17 his own doing, entirely his own doing. In fact, later
18 in the same document over the page, at point 13,
19 Anthony Langdon asks the ICPC. He said:
20 "I asked when and how the current criminal
21 investigation had got underway and Mr [blank] gave
22 virtually the same account that he had earlier heard
23 from the chief constable, ie that the chief constable
24 had himself pressed it when the coroner had decided to
25 drop the inquest."
128
1 So there is evidence that the chief constable is
2 certainly taking the credit for having pushed at
3 McBurney to go and see Andrea McKee when he did go at
4 the end of June, which is not what McBurney has said.
5 He has said it was always part of his grand plan and the
6 circumstances under which he would implement his grand
7 plan were not right until that point, until the inquest
8 had stopped, and then he went on his own bat.
9 The fact is that's not what the chief constable
10 says, if that's accurate, but certainly what is accurate
11 is that he told Anthony Langdon that he had pushed him
12 THE CHAIRMAN: Mr McGrory, to help us to decide what was the
13 truth about this matter, if it is known when the chief
14 constable began to push and push McBurney to interview
15 Andrea McKee, that would help us.
16 MR McGRORY: Sorry, sir.
17 THE CHAIRMAN: If it is known when the chief constable began
18 to push McBurney to interview or see Andrea McKee, that
19 might help us. I am not asking for the answer now.
20 MR McGRORY: I will look overnight to see if we have that
21 evidence. I don't think we have it and it may be that
22 it is unfortunate that the chief constable wasn't asked
23 just when that had happened.
24 MR ADAIR: I think you will find, sir, if I can help, that
25 he was asked about this, and he made it absolutely clear
129
1 that it was after Mr McBurney came and told him about
2 the opportunity to go to Andrea McKee that he agreed and
3 then pushed and pushed him, but it was McBurney who told
4 him. I think you will find that in his transcript of
5 his evidence at pages 191-196.
6 THE CHAIRMAN: Thank you very much indeed.
7 MR McGRORY: Just looking at his evidence at Day 61,
8 10th September 2009, page 201:
9 "Question: Does it follow from that then, that as
10 far as you were concerned, there was nothing going on
11 live in that part of the investigation until Mr McBurney
12 came to you and said, 'I have been to see her and she's
13 cracked'?
14 "Answer: My understanding -- no, sorry, he came to
15 me before he went to see her.
16 "Question: Right.
17 "Answer: I was pushing and pushing then, 'You must
18 make arrangements. Go and see her now. But, before you
19 do, discuss the strategy with the director ..."
20 THE CHAIRMAN: Thank you.
21 MR McGRORY: In our respectful submission, that is evidence
22 from Mr Flanagan that there was the discussion between
23 them.
24 THE CHAIRMAN: Oh, yes.
25 MR McGRORY: If that is the case, then one has to ask the
130
1 question: would he ever have done anything had he not
2 been pushed? At every point at which there was
3 an opportunity to do something, he doesn't do it. Right
4 up to the very last minute, he has to be pushed to go
5 and see Andrea McKee. So where is the grand strategy in
6 that?
7 The truth, we submit, is that there was no grand
8 strategy. There just was not one. It was a do nothing
9 approach. Buy time. Do nothing. For a very long time
10 it worked. Had Andrea McKee never split up, nothing
11 ever would have happened. The evidence would never have
12 emerged. It may not even have emerged after that if the
13 inquest had not collapsed, and there was such a public
14 outcry.
15 There is evidence that -- in fact, the very fact
16 that xxxxxxx arranges to see
17 Sir Ronnie Flanagan and raises the issue with him --
18 whether it was a regular meeting or special meeting we
19 don't know -- the Permanent Undersecretary to the
20 Secretary of State has raised with the chief constable,
21 "What is going on in this case?" and the chief constable
22 has to tell him, "It is being looked after". That
23 prompted it, and, thereafter, then things start to
24 happen, and the reasons for the collapse of that
25 particular investigation when it does get going are
131
1 a matter for another argument.
2 But it is our respectful submission that there is
3 an overwhelming body of evidence building in respect of
4 Chief Superintendent McBurney in respect of the question
5 of whether or not there actually was a strategy to
6 suggest that there actually wasn't one and that, in
7 fact, it was a subterfuge.
8 That is right at the heart of this Inquiry, we
9 submit. It is a very, very disturbing submission to
10 have to make, but it is collusion in its worst form. It
11 is a very subtle form of collusion, in the sense that,
12 if it is correct that Atkinson, who is a policeman, had
13 engaged in the tipping-off of a murder suspect for one
14 reason or another, and that there was a belief on the
15 part of senior police that that was so, and even in
16 McBurney's case that he is making it was a belief,
17 because, without it, there would have been no strategy,
18 for nothing to be done --
19 THE CHAIRMAN: So you say this was collusion between
20 McBurney and his superior officers?
21 MR McGRORY: No, it is collusion between McBurney and
22 Atkinson, albeit it is not that the two ever necessarily
23 spoke to each other, apart from in the context of the
24 investigation, but it is our respectful submission that,
25 for reasons that were best known to Detective Chief
132
1 Superintendent McBurney, he decided to bury it.
2 Now we can only speculate as to why he might have
3 done that and whether or not he felt he had the green
4 light from his superior officers or had a green light
5 from his superior officers or whether or not he was
6 deceiving his superior officers. We just don't know.
7 One of the problems this has all thrown up is there
8 appears to have been no supervision of the detective
9 chief superintendent. The way in which tabs can be kept
10 on an investigation at this level is through the
11 existence of policy books, secret policy books and
12 whatever, but Detective Chief Superintendent McBurney
13 didn't keep any. There is nobody watching the
14 detectives here.
15 The ACC of Crime is ACC White. I will have a little
16 to say about him in a moment. The area assistant chief
17 constable is Freddie Hall. He is not kept appraised of
18 the detail of the investigation or the existence of
19 a strategy and where it is going. One has to question
20 whether or not detective superintendents should be left
21 entirely to their own devices, because if there is
22 an opportunity either to behave negligently in the
23 conduct of an investigation, it is there because there
24 is no checking mechanism, or at least there was not
25 then, or if there is a willingness on the part of
133
1 a detective chief superintendent to perhaps direct
2 an investigation in a subtle way to avoid the detection
3 of a serious crime by a police officer in this way, the
4 opportunity is there, because there is no supervision.
5 In any event, we say that something went wrong here
6 and there are just too many -- there are just simply too
7 many occasions on which he ought to have done something
8 else, when he didn't do it, to come to any other
9 conclusion than that he really knew what he was doing
10 and what he was doing was nothing.
11 That in itself corrupts the organisation. It
12 corrupts the police force. If the police force does not
13 have the moral fibre to seize the opportunity to root
14 out one of its own bad apples, then that police force is
15 failing fundamentally in its duties
16 THE CHAIRMAN: One has to be careful before one says the
17 "police force", because if you were right, this was down
18 to McBurney.
19 MR McGRORY: Yes.
20 THE CHAIRMAN: There may have been failure in supervision,
21 but that's not the same as the police force not
22 bothering to bring to justice a bad apple.
23 MR McGRORY: Well, it is in the sense that it entrusted
24 DCS McBurney to do this. Again, I am going to touch on
25 this subject when I reach the chief constables, which is
134
1 the next item on my agenda. I will maybe leave that to
2 the morning. They can't have their cake and eat it.
3 They can't say, "We are handing this over to Detective
4 Chief Superintendent McBurney, who is a perfectly
5 responsible, diligent and dedicated police officer to
6 deal with on our behalf", and then, when he fails to do
7 it, either out of negligence or corruption himself,
8 absolve themselves from responsibility as a police force
9 because it was the consequences of the actions of one
10 detective chief superintendent.
11 When you get to that level, then the responsibility
12 falls with the leadership of the police force
13 REV. BARONESS KATHLEEN RICHARDSON: He wasn't the only one
14 who knew either, was he?
15 SIR JOHN EVANS: In seeking to establish why that might have
16 happened, are you suggesting, Mr McGrory, that there was
17 any relationship between McBurney and Atkinson?
18 MR McGRORY: No. We have uncovered no evidence of that. We
19 have uncovered no evidence of any direct relationship.
20 I am reminded I did float the question of freemasonry,
21 but there is no evidence of a direct relationship, but
22 what we submit is that a police officer at the rank of
23 Detective Chief Superintendent McBurney, as astute as
24 Detective Chief Superintendent McBurney, knew the
25 ramifications of revealing that one of their police
135
1 officers had done that, and in the necessity of
2 revealing it, of investigating him, arresting him, it
3 would have had serious ramifications within the morale
4 of the reservists in the police force. It would have
5 had serious ramifications in the broader political sense
6 for policing in this jurisdiction, that if there was
7 a motive, that it wasn't necessarily a personal
8 connection between him and Atkinson, but a knowledge on
9 of part of DCS McBurney that he knew the enormity of
10 what had been done by Atkinson and he knew the enormity
11 of revealing what had been done by Atkinson. So,
12 therefore, he took the opportunity, when it was
13 presented to him, simply to do nothing.
14 My next heading of submission --
15 THE CHAIRMAN: Just before you go on --
16 MR McGRORY: Sorry, sir.
17 THE CHAIRMAN: -- you referred to corruption of senior
18 police officers, officers senior to McBurney.
19 Now, when do you say -- you see, I can see you may
20 criticise Mr McBurney -- rather, his senior officers for
21 not supervising him. We have to consider whether that
22 is a sound criticism, but if it becomes corruption, and
23 you seem to be suggesting that a failure to supervise
24 amounted to corruption, one has to ask: when did it
25 begin?
136
1 Are you, in fact, suggesting corruption on the part
2 of McBurney's senior officers or simply a failure
3 properly to supervise?
4 MR McGRORY: The corruption was McBurney's, in our
5 respectful submission. There is then a question as to
6 whether or not there was simply a failure to supervise
7 that allowed McBurney to do this on his own initiative,
8 or whether or not the senior officers knew what he was
9 doing, or whether or not they simply turned a blind eye,
10 or whether or not there was a systemic problem in that
11 there was simply no supervision and it happened in that
12 way.
13 So there are a number of scenarios, and I propose to
14 address those in some detail when I get to the chief
15 constable, but we submit there was certainly corruption
16 at McBurney's level
17 THE CHAIRMAN: Yes, I follow that.
18 MR McGRORY: But above McBurney's level we wish to raise
19 questions as to whether or not ACC White and the chief
20 constable also must have known what McBurney was doing
21 in terms of the way in which he handled the
22 investigation.
23 Now, they say that they forgot about it, that they
24 accept the evidence only when it is put in front of
25 them -- and I want to come to this -- that they must
137
1 have known about the allegation about Atkinson when the
2 evidence was forthcoming about the meeting on Monday,
3 the 12th, the chief constable meeting, when it was
4 brought to the table, and then ACC Hall was sent off to
5 ring the ICPC and it was all said, "Oh, McBurney is
6 handling that".
7 ACC White and the chief constable both said that
8 they thought no more about it, heard no more about it,
9 knew no more about it. In fact, initially they both
10 said they didn't know anything about it until they were
11 reminded that they did, until 2000.
12 Now either that was an abject ditching of their
13 responsibility to keep themselves informed as to what
14 was happening, or they did know about it and they are
15 not letting on, and I wish to come to some submissions
16 about that in due course
17 THE CHAIRMAN: Very well, but correct me if I am wrong.
18 I don't have any recollection of any of the officers
19 superior to McBurney being asked whether they had closed
20 a blind eye to what McBurney was doing or connived at
21 it. Tell me if I am wrong about that.
22 MR McGRORY: I think --
23 REV. BARONESS KATHLEEN RICHARDSON: They were not doing
24 anything. Can you close a blind eye to not doing
25 anything?
138
1 MR McGRORY: I think I went as far as I could. I will check
2 the evidence of my questions to Sir Ronnie Flanagan.
3 THE CHAIRMAN: It is a matter that can be looked at
4 overnight.
5 MR McGRORY: I think I went as far as I could along that
6 line. I did not cross-examine Sir Ronnie Flanagan as to
7 credit, because the evidence of Anthony Langdon, in
8 terms of what it was Sir Ronnie Flanagan said to him
9 when he spoke to him in July, was not before the Inquiry
10 when we had Sir Ronnie Flanagan in the witness box. So
11 when I put those comments to Sir Ronnie Flanagan, he
12 denied that he made them. I had to accept those
13 answers, because I hadn't the evidence of
14 Anthony Langdon. It is just the way things fell.
15 THE CHAIRMAN: I will not take up more time at this stage,
16 but I think it is something we should like to know
17 about.
18 MR McGRORY: Perhaps I will continue on that theme in the
19 morning. It is 4.15 pm.
20 THE CHAIRMAN: We are hoping to sit until 4.30 pm.
21 MR McGRORY: Okay.
22 THE CHAIRMAN: You are scheduled to take the morning, aren't
23 you?
24 MR McGRORY: Yes, and I don't have too many more topics to
25 cover. After I address you in relation to the chief
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1 constables, I will be moving to the ICPC and the DPP.
2 I would hope not to be too long on those topics, and
3 then I have one other issue arising out of the
4 collective submissions of my learned friends to address,
5 and that is the relationship between the medical
6 evidence and the evidence about the beating, and that
7 will conclude my submissions.
8 THE CHAIRMAN: How long, do you think, will that take?
9 MR McGRORY: If I stop now, I still think I would
10 comfortably finish before noon tomorrow.
11 REV. BARONESS KATHLEEN RICHARDSON: Before we just move on,
12 can I just ask about Irwin in this, the previous point
13 you were making?
14 MR McGRORY: Yes.
15 REV. BARONESS KATHLEEN RICHARDSON: You seemed to be putting
16 the responsibility totally on McBurney. Do you regard
17 Irwin as having any responsibility?
18 MR McGRORY: Yes. He had a responsibility, in my
19 submission, to question the tactics of McBurney. He
20 accepted them unquestionably, hook, line and sinker.
21 He either -- we know that he questioned them to the
22 point where he went to McBurney and said, "Should
23 I really be taking this statement?" He certainly seems
24 to have asked McBurney from time to time about what it
25 is he was going to do.
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1 To Irwin's credit, he did tell McBurney, in
2 October 1999, that the McKees had split up, which would
3 suggest that McBurney had at least told him that was
4 a plan and that this was relevant information that
5 McBurney needed to know, but we submit that it was such
6 an outlandish plan that we, (a), say it didn't exist,
7 but that Irwin ought to have had the wherewithal to say
8 "This can't be right". He could have gone to another
9 officer or a chief constable or he could have confronted
10 McBurney. He didn't do either of those things.
11 That either means, (a) he just didn't question him.
12 He accepted the word of a superior officer, or he did
13 question him in his mind and chose to do nothing. We
14 can't say any more than that
15 THE CHAIRMAN: We will break off there until 10.30 in the
16 morning.
17 (4.20 pm)
18 (The hearing adjourned until 10.30 tomorrow morning)
19
20 --ooOoo--
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