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Hearing: 17th November 2009, day 69
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1 Tuesday, 17th November 2009
2 (2.00 pm)
3 THE CHAIRMAN: Before Mr Underwood begins, I would like to
4 offer my own thanks to the various parties for their
5 preparation and submissions to meet a tight deadline.
6 I know that has involved a lot of work and I am grateful
7 for it.
8 Yes, Mr Underwood?
9 Directions hearing
10 MR UNDERWOOD: Sir, the purpose of this is to clear out of
11 the way any matters that might otherwise cause delay or
12 confusion in the oral closings.
13 I have set out a brief list, and some notes have
14 been circulated as well, about what might usefully be
15 dealt with at this stage.
16 The first of those matters is really for the
17 avoidance of doubt more than anything else. It is the
18 content of oral closings. I hope that it is generally
19 understood -- and if it is not, or not agreed, then no
20 doubt people will make submissions on it -- that the
21 written closing submissions of each party are the basic
22 framework of what they are expected to talk about, but
23 obviously people will respond to other submissions that
24 they read in the composite document. It may well be
25 that, at the end of the day, some people might ask to go
1
1 twice on the basis that something emerges in the course
2 of the oral closings that were unforeseeable when they
3 made their submissions.
4 I don't know whether any of that is contentious. If
5 it is, I would invite people to comment on it at this
6 stage
7 MR McGRORY: Not really, sir, except to the extent that
8 foreseeability of another person's submission is perhaps
9 not an exact science.
10 THE CHAIRMAN: Say that again.
11 MR McGRORY: Except to the extent to which the
12 foreseeability of another person's submission is not
13 necessarily a precise science, in that one will do one's
14 best to anticipate what one might be required to reply
15 to. I say this particularly from my point of view,
16 because I think it is suggested we go first and we have
17 an all-encompassing role. So if we have not perhaps
18 anticipated precisely what others might have said who
19 come after us, then some latitude will be afforded.
20 THE CHAIRMAN: I expect you will have studied all the other
21 people's written submissions, and if you have anything
22 to say about them, will be able to say it in your oral
23 submissions.
24 MR McGRORY: Oh, yes.
25 THE CHAIRMAN: It shouldn't be a matter of realising part
2
1 way through that there is something you have not dealt
2 with.
3 MR McGRORY: Yes. Certainly, I undertake to do my best in
4 that regard.
5 THE CHAIRMAN: Yes, Mr Underwood?
6 MR UNDERWOOD: Thank you very much.
7 The next matter is the sequence of oral closings.
8 I have had the great advantage of being able to talk to
9 almost all of my learned friends over the last couple of
10 weeks or so about this. What I am proposing arising out
11 of that is that the Hamill family address you first,
12 followed by the NGOs, that's the BIRW and CAJ.
13 Then the next group we, in the vernacular, call
14 little "Bs". Those are witnesses who have been
15 represented who have the right to make submissions,
16 subject, of course, to you, but who, in the great scheme
17 of things, have a relatively small part to play and of
18 whom there are half a dozen or so.
19 It is hoped that they could make their submissions
20 and, as it were, exit gracefully at an early stage,
21 followed then by those people who have been, as it were,
22 the object of the Inquiry, so the alleged kickers, the
23 police, the Police Service, Mr Atkinson, all of whom
24 have allegations to face of various sorts.
25 What I would respectfully suggest is, within those
3
1 broad three groupings, one leaves it to the individual
2 advocates to agree amongst themselves the order in which
3 they are content to go, obviously subject to you
4 arbitrating on any differences, but it seems to my team
5 to be a reasonable and practical way forward. Certainly
6 my experience of cooperation between the teams here is
7 that is likely to lead to the best result
8 THE CHAIRMAN: Yes.
9 MR UNDERWOOD: Again, subject to comment on that, that's
10 what I would propose would happen.
11 THE CHAIRMAN: Does anyone want to suggest anything to the
12 contrary at this stage? So be it.
13 MR UNDERWOOD: Again, it would be helpful to have time
14 estimates. A number of people have volunteered time
15 estimates to me already, ranging from up to a day or so
16 for those with a lot to deal with. A number of people
17 around the two to three hours mark. It would be helpful
18 if people indicated behind the scenes, not necessarily
19 now, very roughly how long they anticipate being,
20 appreciating of course it is not an exact science and
21 that a two or three-hour submission might well be double
22 that with a lively question session.
23 Understanding that, it would be helpful to have very
24 broad estimates from people. Certainly from the
25 soundings we have taken so far and the very helpful
4
1 indications we have had all round, we will comfortably
2 finish in the two-week slot we have in December for
3 this.
4 The --
5 THE CHAIRMAN: Just before you go on from there, it should
6 not be necessary for anyone to repeat submissions which
7 are already there in writing, and I don't suppose anyone
8 will particularly want to. If, however, there are
9 things you wish to add and they go to something you have
10 already written or to some other part of the
11 submissions, it will be helpful for the Panel, when we
12 come to consider them, if you can tell us, "This relates
13 to such and such", so we don't simply have a lot of
14 material and find ourselves wondering, "What does this
15 go to? Where do I slot this in?"
16 That should present no difficulty, I hope. This is
17 one of those occasions when silence presumes consent.
18 MR UNDERWOOD: On a collateral point, I should mention that
19 we have configured the composite document that has
20 arisen out of the extremely helpful closings everybody
21 has submitted so that we can have it up on screen by
22 page number. We can have the usual split-screen
23 facilities so people can compare one page with another
24 or a page of that with another document in the system,
25 for example.
5
1 The next matter is that there are three documents
2 which have emerged since the close of the oral evidence.
3 The first is the second statement of Mr Donnelly. The
4 second is the report from Professor McEvoy, and the
5 third is a very brief medical expert report which the
6 BIRW and CAJ introduce as part of their submissions in
7 the closing.
8 Obviously, on the basis that there have been no
9 formal rules of evidence, there is no formal process for
10 either admitting or denying documents of that sort. For
11 the avoidance of doubt again, and for good order, what
12 I am suggesting is that they be taken as read, that they
13 are introduced into the website as if they had been led
14 in evidence in the ordinary way, and that, however, it
15 would be very helpful if anybody who seeks to rely on
16 them identifies to the Panel in their oral closings
17 which passages they want you to take notice of and for
18 what purposes
19 THE CHAIRMAN: Yes. That certainly must apply in the case
20 of Professor McEvoy, whose report runs to 50 or
21 60 pages.
22 MR UNDERWOOD: Yes, because, obviously, if they had been
23 introduced in the ordinary way, they would no doubt have
24 been cross-examined on. I would have read selected
25 passages at the instance of other people. In the
6
1 absence of that, of course, I would suggest that the
2 Panel deserves some help on pointers, as it were.
3 THE CHAIRMAN: Yes. I wonder in relation to that, since
4 there may be more than one person who wants to speak to
5 a particular document, if those who wish to can provide
6 you with page references which others can then look at
7 to see if there is anything further they want to speak
8 of, or if there is something they would not have wanted
9 to speak about, but do now?
10 MR UNDERWOOD: Yes.
11 THE CHAIRMAN: Is that going, do you think, to be helpful
12 and workable?
13 MR UNDERWOOD: I have no doubt whatsoever that the
14 cooperation I have enjoyed so far will extend to that.
15 Next, we get to the slightly more contentious
16 question of the post-mortem photographs. Can I tell you
17 the historic position about these?
18 THE CHAIRMAN: Yes.
19 MR UNDERWOOD: They were and are material documents.
20 Therefore, they have been sent out to everybody who has
21 had material bundles of documents. They were, for that
22 reason, on the system which was capable of throwing them
23 up on screen. Mr Adair carefully cross-examined
24 a number of witnesses about them, because there was
25 an issue about the hair-colouring of a person identified
7
1 as being part of the group walking along Thomas Street.
2 The issue was this: that it was said by some of
3 those who were walking along Thomas Street that
4 Robert Hamill had fair hair -- I summarise. The
5 photographs tend to show he had dark hair. Mr Adair
6 very carefully made it clear he did not want those
7 photographs up on screen, but nonetheless, he would want
8 witnesses, or at least the Panel, to know there was
9 an issue about this which may be resolved by reference
10 to those photographs.
11 Unhappily, because of the efficiency of the
12 technical staff here, who hear a reference to the
13 document and put it up on screen, one came up on screen.
14 In order to prevent repetition, I simply had them taken
15 out of the system that's available in the chamber.
16 Now, assuming that there is going to be
17 a continuance of that issue, and certainly from the
18 written closings I foresee that there will be, then
19 obviously you are going to need to have some access to
20 those. They don't necessarily need to be made public.
21 Having said that, we have taken extraordinary pains in
22 this Inquiry to ensure the Panel shows nothing unless it
23 is made public and this would be a departure from that.
24 I welcome submissions on this. My primary objective
25 here is to ensure that, firstly, the Panel have access
8
1 to these and, secondly, that those who wish to make
2 submissions about them know where the documents are, and
3 that there is as much transparency about this as there
4 can be. Obviously we don't want post-mortem photographs
5 up on screen unless it is absolutely essential, but
6 perhaps I can invite submissions on that
7 THE CHAIRMAN: Yes, Mr O'Hare?
8 MR O'HARE: I think, since it was Mr Adair who raised the
9 matter at first instance, we have no wish for the
10 port-mortem photographs to be put on the screen. I want
11 to make that clear, sir. We have been provided with
12 colour photographs, copies of them. We would be quite
13 happy if the Panel simply lived with those. Certainly,
14 sir, we don't need it put on the screen. The point has
15 been made and it won't be developed much further.
16 THE CHAIRMAN: It seems to me that if an issue is raised,
17 for example, as to hair-colouring, and there is evidence
18 that answers that question, it would be quite wrong that
19 the Panel should not be aware of that evidence and have
20 access to it.
21 MR O'HARE: Precisely, but the point being made, it need not
22 be put on the screen, as far as we are concerned.
23 THE CHAIRMAN: Yes, Mr McGrory?
24 MR McGRORY: I would respectfully adopt what Mr O'Hare has
25 said in that regard.
9
1 THE CHAIRMAN: So, for example, if there is a question of
2 the hair colour of the late Robert Hamill, you will
3 accept we must see any photographs which help to resolve
4 that issue.
5 MR McGRORY: Oh, of course, but that could be done without
6 the necessity of putting them on the screen.
7 THE CHAIRMAN: I agree entirely, yes.
8 MR McGRORY: I am much obliged.
9 MR UNDERWOOD: That's a very helpful resolution. I will
10 take it then, if I may, that the photographs will
11 be available to you, and, of course, they remain
12 available to the advocates, but they will not be put
13 back on the public system.
14 THE CHAIRMAN: Yes.
15 MR UNDERWOOD: That then leads me to the terms of reference.
16 There are two issues. I suspect they are not
17 particularly controversial, but again, it might be
18 helpful to clarify them here. The first is about the
19 way in which references can be made to those who are
20 alleged to have participated in the attack.
21 THE CHAIRMAN: Yes.
22 MR UNDERWOOD: Of course, the terms of reference here are
23 concerned with the RUC principally and in their due
24 diligence limb with anybody else involved in the
25 investigation and perhaps in prosecutions.
10
1 Inevitably, questions arise about the activity of
2 individuals on the night in order to shed light on what
3 the police did or did not do and perhaps should have
4 done and all the more acutely, perhaps, in the case of
5 Mr Hanvey, about whom the question appears to arise:
6 what could Mr Atkinson have seen that led him to tip off
7 Mr Hanvey in the morning?
8 Inevitably, therefore, questions have been asked of
9 these witnesses and about these witnesses, whether they
10 participated in the attack, whether Mr Hanvey in
11 particular did something which Mr Atkinson saw him do.
12 Equally, questions have arisen about and of these
13 witnesses relating to their credibility, because, of
14 course, they have come to give evidence about what
15 happened on the night, which evidence naturally the
16 Panel is going to have to sift, and their credibility is
17 naturally likely to be an issue.
18 It seems to me, with respect, therefore, that it is
19 impossible to say one cannot make a submission about
20 an alleged kicker which is founded on the premise that
21 he is an alleged kicker. It is simply impossible to
22 rule out any sort of submission along that line in the
23 way it would have been impossible to rule out questions
24 along those lines, but what I would respectfully suggest
25 is that any submission which tends to show the guilt of
11
1 any person here needs to be very carefully geared to the
2 terms of reference. It has to be a submission along the
3 lines, if you like, that, "I submit Mr Hanvey did this,
4 because, otherwise, Mr Atkinson would have had no reason
5 to tip him off", and unless there is such an explicit
6 gearing, there is a grave risk, I would respectfully
7 suggest, that accusations are left hanging in the air in
8 a way that it would be impossible to resolve them in
9 a report and yet they are likely to be reported
10 adversely as adverse allegations tend to be.
11 I understand there is no issue about what the terms
12 of reference involve and I understand equally that there
13 is no issue that submissions have to be geared to them.
14 I hope by bringing this matter up at this stage one can
15 clarify that so that there is no confusion when we get
16 to the oral closings. I don't know whether anybody has
17 any submissions to make on that.
18 THE CHAIRMAN: Perhaps before I hear any submissions, this
19 is a matter to which I have given some careful and
20 anxious thought. The Inquiry has to be very careful
21 that it does not stray outside its terms of reference
22 and it is not made a vehicle for allegations which do
23 not fall within the terms of reference that they may
24 under the shutter, if you like, of the Inquiry be
25 publicised.
12
1 I have written something for my own guidance and
2 I propose to read it out so you will see what's in my
3 mind. It may help you if you do have submissions to
4 make about them.
5 In a number of the submissions we have received the
6 allegation is made that a certain act, for example,
7 participation in the attack on Robert Hamill, has been
8 established. However, the submission has not gone on to
9 explain how such a finding, were it to be made, is
10 relevant to the working out of our terms of reference.
11 No allegation of this nature is to be made in any
12 oral submission unless the oral submission made in
13 support of it goes on to explain how a finding that the
14 allegation is made out is relevant to the working out of
15 our terms of reference.
16 In the absence of such an explanation which
17 satisfies the Panel of its validity, we shall take no
18 account of the allegation and make no finding about it.
19 The making of the allegation will not be published on
20 the Inquiry's website unless and until the Panel is
21 satisfied by the explanation offered of its relevance.
22 If any applications are made to allow further
23 submissions to be made against the validity of such
24 explanation, the Panel will consider them individually
25 on their merits.
13
1 I hope that makes quite clear what is not simply the
2 expectation, but the requirement of the Panel on these
3 matters. Does anyone have anything to say at this stage
4 about it?
5 MR McCOMB: Sir, I would respectfully adopt that approach.
6 THE CHAIRMAN: You have it on your LiveNote, so if in doubt
7 about what I have said, you have it there to look at.
8 MR McGRORY: Sir, I have something to say. What you have
9 said I think is very helpful. It may have been directed
10 at me, if I may say so, since we make no secret of the
11 fact that we have made allegations against individuals
12 in respect of their conduct towards Robert Hamill.
13 THE CHAIRMAN: It is not intended to be directed solely
14 against you, but against anyone who makes an admission
15 which needs, in order for it to be relevant, to be
16 linked to the working out of our terms of reference.
17 MR McGRORY: Indeed. I accept that, sir, but I am very
18 grateful for your outline. I think it is a formula we
19 can certainly live with, but what I would suggest is
20 perhaps this: in advance of 7th December, that certainly
21 we would be happy to formulate how any allegation we
22 might make against an individual can be justified within
23 the compass of the outline you have given us, sir, in
24 advance of the 7th December, in order to avoid any
25 perhaps unnecessary oral argument about it when we get
14
1 to that point, if that would help, if that would assist.
2 MR UNDERWOOD: That's typically helpful. I certainly would
3 find it very valuable.
4 THE CHAIRMAN: You must not think that would mean you would
5 have the answers straightaway on 7th December.
6 MR McGRORY: Not at all, but it would perhaps facilitate
7 some form of discussion if there is any contrary view
8 taken by anybody.
9 THE CHAIRMAN: Quite plainly, nothing must go on the website
10 unless and until, where the explanation is needed, it is
11 provided and ruled upon by the Panel as establishing the
12 necessary link. You understand that the written
13 submissions have not gone and will not go on the
14 website.
15 MR McGRORY: No, indeed. I am totally in agreement with
16 that, sir.
17 THE CHAIRMAN: While you are on your feet, Mr McGrory --
18 MR McGRORY: I should have sat down more quickly, sir.
19 THE CHAIRMAN: I noted that you said of the Director's
20 decision --
21 MR McGRORY: Yes.
22 THE CHAIRMAN: -- not to prosecute Atkinson was a wrong
23 decision. Now, that clearly must come out of your
24 submissions.
25 MR McGRORY: Yes. That may be a belief that the family
15
1 holds.
2 THE CHAIRMAN: That's neither here nor there.
3 MR McGRORY: That's neither here nor there. We do not seek
4 that the Inquiry should make such a finding.
5 THE CHAIRMAN: It will be appropriate for you to delete any
6 such reference from your submission. No doubt you will
7 do that along with ...
8 MR McGRORY: Indeed.
9 THE CHAIRMAN: Mr Underwood said it is clear that there is
10 the necessary deletion.
11 MR McGRORY: Yes. Just on that issue, sir, can I clarify it
12 is appropriate -- there were two limbs to that
13 particular submission. The second limb was that the DPP
14 failed to do due diligence.
15 THE CHAIRMAN: Yes. That's a matter which is still open to
16 argument. Quite apart from that, if you wish to say,
17 regardless of what the Director did or did not himself
18 decide, the Panel is entitled to take its own view about
19 the credibility of Andrea McKee, you are perfectly
20 entitled to make that submission.
21 What you are not entitled to do, though, because it
22 goes outside our terms of reference, is to say that the
23 Director made the wrong decision.
24 MR McGRORY: Yes. I have no difficulty with that, sir.
25 THE CHAIRMAN: Good.
16
1 MR UNDERWOOD: I apprehend that deals with the next issue,
2 unless there is anybody else who wants to comment on it.
3 MR EMMERSON: Mr Chairman, we have arranged to have handed
4 up to you and to all parties a copy of a letter that the
5 PPS provided to the secretariat on 11th August setting
6 out in some detail the PPS's submissions as to the way
7 in which the terms of reference may bite on individual
8 decisions.
9 We certainly and respectfully accept and adopt the
10 formulation as you have proposed it in relation to
11 submissions that go to the correctness or otherwise of
12 ultimately prosecutorial decisions. We make it clear,
13 both, I think, in the letter, but also in our written
14 submissions at pages 1299 to 1302, that, as we submit --
15 and I don't understand there to be any dissent from
16 this, but if there is any, perhaps now is the time to
17 ventilate it -- that precludes not merely findings as to
18 the correctness of a prosecutorial decision, but any
19 finding directed to its merits which takes the form of
20 an attack on its reasonableness or rationality.
21 That is our position as to what the extent of the
22 terms of reference are.
23 At the moment, the attacks that have been mounted on
24 the prosecutorial decisions within that rubric have been
25 couched in terms of challenges to the correctness of the
17
1 decision. I think it is common ground then that those
2 fall outside the terms of reference. There remains,
3 I think, some potential area for confusion as to whether
4 or not challenges which are -- though merits
5 challenges -- focused and formulated as challenges to
6 the rationality or reasonableness of the decision.
7 THE CHAIRMAN: Inevitably, the two overlap, do they not?
8 MR EMMERSON: They certainly do.
9 THE CHAIRMAN: It is plainly, subject to one point I will
10 mention in a moment, of relevance to consider the
11 rationality -- the preparation of the material upon
12 which the decision had to be made that comes next, and
13 I don't propose to go into it now, because it will be
14 a matter, no doubt, for submission by more than one
15 party.
16 MR EMMERSON: Yes.
17 THE CHAIRMAN: If there is a challenge to be made on that
18 basis, whether it falls within our terms of reference as
19 something which has played a part in shaping police
20 investigations thereafter --
21 MR EMMERSON: Yes.
22 THE CHAIRMAN: -- that's a matter which has yet to be
23 considered.
24 MR EMMERSON: As being the next item on the agenda?
25 THE CHAIRMAN: Yes.
18
1 MR EMMERSON: In which case, if we are moving on --
2 THE CHAIRMAN: Can I just say this, Mr Emmerson? Plainly
3 the Panel will have to make up its own mind about
4 Andrea McKee.
5 MR EMMERSON: Yes.
6 THE CHAIRMAN: It would be discourteous, as well as foolish,
7 in coming to that conclusion, not to look at the
8 material which was gathered on behalf of the Director
9 and to weigh that for ourselves.
10 We, of course, may have advantages which the
11 Director did not have, because we have seen Andrea McKee
12 and we have seen witnesses upon whose advice the
13 Director based his decision.
14 MR EMMERSON: Yes.
15 THE CHAIRMAN: But it would be, as I say, discourteous and
16 foolish not to take into account the material he did as
17 part of the whole picture that we have to look at.
18 I don't suppose you would quarrel with that.
19 MR EMMERSON: No. If I could put it more simply, it seems
20 to us inevitable that the Panel will need to come to
21 a view as to whether the material which could be laid
22 against Andrea McKee's credibility is sufficient in the
23 Panel's own view to affect her credibility and to what
24 extent it does so. That seems to me to be inevitable.
25 What we would say about that aspect, though, is that
19
1 we fundamentally challenge the proposition that the
2 decision-making process was one which shaped the
3 investigation. The way in which it has been put so far
4 is that, had the prosecution continued and had
5 Mr Atkinson been convicted, there was a possibility that
6 he may somehow, as a result of that process, become
7 a witness against Hanvey on the assumption that he must
8 have seen something relevant to Hanvey's involvement,
9 because, otherwise, why would he be tipping him off?
10 In relation to that specific, our position I hope is
11 clearly set out, that that is far too speculative
12 a basis to form a factual foundation for any finding
13 that that decision to abandon the prosecution shaped the
14 murder investigation
15 THE CHAIRMAN: Well, as I hope I have made clear already,
16 I am alive to the fact that there is that issue.
17 MR EMMERSON: Yes.
18 THE CHAIRMAN: In one sense it may be rather academic, but
19 I can see it is not entirely academic and is a matter of
20 principle so far as the Director is concerned.
21 MR EMMERSON: Well, you will be aware, sir, from some of the
22 questions that were put, particularly by counsel for
23 Andrea McKee herself on one occasion to Christine Smith,
24 which was put in rather strong terms to her, that
25 submissions can be made, and, indeed, in this instance
20
1 by Mr McGrory have been made, which go to the
2 rationality of that decision, and, as we would
3 respectfully submit, that falls outside the terms of
4 reference, not merely because it is a decision on the
5 merits, but because there is no factual foundation for
6 the proposition that that particular decision shaped the
7 investigation.
8
9 Can I just move slightly earlier on in the
10 chronology and contrast the position as it has emerged
11 in submissions in relation to the decision to abandon
12 the prosecution of Mr Lunt and the decision to abandon
13 the prosecution of Mr Bridgett?
14 Now, three specific issues have been raised in
15 relation to Mr Bridgett.
16 The first is: was the DPP at fault in failing to
17 direct or advise a further interview in the light of the
18 forensic evidence?
19 Secondly, was the DPP at fault in failing to direct
20 or advise further forensic tests?
21 Thirdly, Mr Kerr and Mr Kitson, were either of them
22 at fault in regarding the evidence of Constable Silcock
23 as evidence upon which the prosecution could not
24 properly rely?
25 Now, by way of illustration, the first two of those
21
1 strands are obviously steps which, if a legitimate
2 criticism is to be made, could have shaped the
3 investigation, because, as a result of advice that it is
4 said that the DPP's department should have given,
5 further investigations would have been conducted.
6 Clearly, we resist that suggestion on the merits,
7 but we don't contest that that falls within the terms of
8 reference. We do, though, contest, for example, that
9 a difference of view as to the applicability of the law
10 on res gestae is capable of falling within the terms of
11 reference, because that's not something which, in our
12 view, in our submission, is capable of having shaped the
13 investigation.
14 We say precisely the same thing about --
15 THE CHAIRMAN: You say that's something which shaped the
16 decision, as opposed to --
17 MR EMMERSON: It is something which plainly shaped the
18 decision, yes.
19 THE CHAIRMAN: -- the investigation?
20 MR EMMERSON: There is plainly in that regard
21 a sub-criticism, which is a suggestion that the DPP's
22 office ought to have returned to Constable Silcock and
23 re-interviewed him before reaching that conclusion about
24 the applicability of the law and res gestae.
25 Obviously, that criticism which is -- it's a bit
22
1 difficult to justify, but if that criticism were well
2 founded, then obviously that is capable of being
3 a matter which would have affected or shaped the
4 investigation because it would have required further
5 investigative steps.
6 THE CHAIRMAN: Yes.
7 MR EMMERSON: Similarly, so far as the Wayne Lunt decision
8 is concerned, in our submission again there is nothing
9 about that decision which is capable of having shaped
10 the murder investigation. It was a decision on the
11 basis of the evidence as it then stood, and it is not
12 suggested by any party that further investigative steps
13 should have been taken in relation to Mr Lunt. What is
14 suggested is that on the evidence as it was the DPP got
15 it wrong.
16 Now, we have explained, I hope, through the evidence
17 and submissions, why we say the DPP's department got it
18 right, but actually, at the end of the day, as we would
19 submit, it is neither here nor there, because the
20 decision to abandon the prosecution of Mr Lunt for
21 murder is not something which, in our submission, was
22 capable of shaping the investigation.
23 So we have gone through in the letter of 11th August
24 each of the areas of criticism and just encapsulated
25 what our submissions come to, but in essence they come
23
1 to this: that in respect of each decision, where it can
2 properly be identified that there is a discrete
3 criticism that the ODPP failed to advise, when it ought
4 to have done, that further investigative steps be taken
5 to obtain further evidence before making a fully
6 informed decision, then plainly that is something which
7 falls within the terms of reference, but to the extent
8 that any criticism is directed towards the
9 decision-making process itself, then in our submission,
10 faithful to the Secretary of State's decision not to
11 extend the terms of reference and the distinction which
12 was drawn between decisions which shape the
13 investigation and those which do not, and the carve-out
14 for challenges to the merits of the decision, we
15 respectfully submit that that's the appropriate place at
16 which the dividing line is to be drawn
17 THE CHAIRMAN: Thank you.
18 MR UNDERWOOD: That's very helpful of my friend. I am not
19 going to rise to the detail of that, but perhaps there
20 is a point I ought to make.
21 You are enjoined by the terms of reference as
22 explained by the Secretary of State not to consider the
23 merits of prosecutorial decisions, but you are to
24 consider the due diligence of prosecutorial processes
25 which may have shaped the murder investigation.
24
1 Leave aside the question for the moment of whether
2 something shaped the murder investigation, what is clear
3 is that that understanding of the terms of reference
4 precludes the Inquiry from considering whether
5 a decision was wrong.
6 The interesting question, and I suggest a technical
7 and academic question, is whether it would preclude you
8 from looking at a decision which was so wrong as to be
9 verging on the absurd in a way that it would be struck
10 down in judicial review as an administrative law error.
11 My reasoning for that is this -- I don't want to
12 draw too close an analogy with it, but in judicial
13 review where one strikes down a decision as verging on
14 the absurd, one does that because you draw an
15 irresistible inference from the outcome that something
16 went wrong with the process. No reasonable person could
17 have reached the decision. Therefore, something
18 somewhere that's hidden in the processes was an error.
19 I would respectfully suggest on the right evidence
20 it may be possible to find that a prosecutorial decision
21 which, if you were to conclude it so, was verging on the
22 absurd had within it a hidden flaw that meant there was
23 no proper diligence in reaching the conclusion
24 THE CHAIRMAN: That would have to be a flaw in the
25 preparation of the material upon which the decision was
25
1 made --
2 MR UNDERWOOD: Yes.
3 THE CHAIRMAN: -- as opposed to a flaw in the
4 decision-making process itself.
5 MR UNDERWOOD: Just so, but I said it is technical and
6 academic, and in my submission, although it is
7 a difference between Mr Emmerson and myself, it makes no
8 difference to the Panel, because nobody is suggesting
9 that any decision here of the Director verged on the
10 absurd.
11 More to the point perhaps, that analytical tool
12 which the public lawyers are so familiar with tends only
13 to be used when you haven't got access to all the
14 working details of the decision-maker. Here we do have
15 very fair and free access to the working details of the
16 decision-making process, and I would respectfully
17 suggest, although it is obviously open for debate if
18 anybody wants to make submissions on it, that there is
19 no corner of the decision-making processes of the
20 Director here upon which we have not shed a light.
21 For those reasons, it would simply be wrong to go
22 round embarking on a quest for inferences. So unless
23 anybody else has anything to add about that,
24 I respectfully suggest one leaves it as a perhaps
25 interesting but completely academic difference between
26
1 the Director and me.
2 THE CHAIRMAN: Very well.
3 MR McGRORY: Can I add something to this debate, if I may,
4 sir?
5 THE CHAIRMAN: Yes.
6 MR McGRORY: It is this. Is there an argument that every --
7 in examining the due diligence of the office of the
8 Director of Public Prosecution that the prosecutorial
9 process is an integral part of the investigative process
10 in the sense that the investigation has to have
11 a purpose, and the purpose of the investigation is to
12 bring to account those who it was believed are
13 responsible for the murder of Robert Hamill?
14 Therefore, if there is a fault in the due diligence
15 of the office of the Director in any discrete respect
16 concerning any one of those who were suspected by the
17 police in the course of the investigation of being
18 involved in the murder, then that, in a sense, has
19 an effect on the investigation.
20 THE CHAIRMAN: No. That's putting the cart before the
21 horse. The fault you are talking of there follows upon
22 the investigation, whereas any fault you have to look at
23 to be within the terms of reference has to precede
24 a part of the investigation or a part which might have
25 been the investigation but for the fault.
27
1 MR McGRORY: Well, can I perhaps throw up one possible
2 example of this? For example, take the case of
3 Stacey Bridgett, where it might be suggested that there
4 was a failure on the part of the Prosecuting Service to
5 do due diligence in respect of the forensic value in
6 a prosecution of the blood pattern of Stacey Bridgett's
7 blood on Robert Hamill's jeans, that a failure to
8 properly and diligently exercise its role in an advisory
9 capacity, which the office of the DPP accepts it
10 fulfils, in directing the police in certain directions
11 there, that that had an effect on the conduct of the
12 investigation.
13 THE CHAIRMAN: Oh, yes, but that's not the proposition you
14 began with. I think we shall not profit by going
15 further along that line now.
16 MR EMMERSON: If I could just very briefly detain you for
17 a second further, as I listened to the way that
18 Mr McGrory put the proposition in relation to
19 Stacey Bridgett a moment ago, it changed from a failure
20 to properly analyse the significance of the bloodstain
21 into a failure to advise further steps were necessary to
22 obtain additional evidence.
23 That elision absolutely perfectly illustrates what
24 is, in our submission, and what is not on the right side
25 of the boundary line, and the danger that one recognises
28
1 from a submission like that is that it is seeking to
2 elide something which is and something which is not
3 within the terms of reference.
4 THE CHAIRMAN: I think this is academic, quite frankly, but
5 I think a failure to appreciate that a piece of evidence
6 calls for more questions and more investigations ...
7 MR EMMERSON: If it is something which goes to the
8 possibility of further investigative steps, then plainly
9 so, but if it is simply, at the end of the day, looking
10 at the material and, as Mr Kerr concluded, coming to the
11 conclusion that a case could not be mounted on that
12 basis coupled with the other evidence that there was,
13 that is not something, in our submission, which is
14 within the terms of reference.
15 THE CHAIRMAN: Yes.
16 MR UNDERWOOD: I can see the battle lines being drawn.
17 That's the purpose of this.
18 The final matter I wanted to raise was about the
19 standard of proof here. A number of people have asked
20 whether there is to be a set standard and, if so, what.
21 Obviously this is entirely a matter for you, subject to
22 submissions.
23 What I would respectfully suggest is consistently
24 with us having no set rules of evidence, there is no set
25 standard of proof. The likelihood is, if you want to be
29
1 satisfied of something, you are going to be satisfied to
2 the civil standard, but that the more extraordinary or
3 extreme the matter you are being asked to accept, the
4 more cogent is likely to be the evidence which you will
5 require for that satisfaction. I apprehend, too, there
6 may be some matters upon which you have to say, "We
7 think this is possible, but we can't say more than
8 that", or, "We simply cannot say in the absence of
9 living witnesses", for example.
10 I also want to draw a distinction, if I may, between
11 findings of facts and judgments. For example, you might
12 be invited to make findings of fact about what was going
13 on in the five minutes after the police officers were
14 apparently warned by Mr Mallon that friends of his were
15 coming up the street. You may be able to make findings
16 of fact on a balance of probabilities or otherwise about
17 who was where then and what happened. You may also be
18 asked to consider what would have happened if the
19 Land Rover crew had not stayed and talked to Bridgett
20 and Forbes, but had gone straight across to the top of
21 Thomas Street.
22 As it were, casting yourself forward as to what
23 would have happened in other circumstances, obviously
24 you are not being invited to make a finding of fact.
25 You are being asked to reach a judgment about that.
30
1 I would apprehend there is simply no question of
2 standard of proof about such judgments
3 THE CHAIRMAN: The question is: could it have made
4 a difference and, if so, what kind of difference? We
5 may be able to say, "Yes, it would", or, "We can't go as
6 far as that. It might have been, it might well have
7 been". There is a whole range of responses.
8 MR UNDERWOOD: Thank you. Again, I raise this just in case
9 anybody has any abiding concerns about this, or, indeed,
10 other submissions about it.
11 THE CHAIRMAN: I have no doubt that all counsel here will be
12 familiar with the decision of the House of Lords in
13 Doherty and the helpful exegesis of what is meant by the
14 burden of proof in civil cases or the standard of proof,
15 I should say, but in this case, since this is
16 an inquisition, there is not a burden upon anyone to
17 prove anything. We simply ask on a matter which we
18 think we should form a view, if we can, or upon which we
19 are invited to and do decide to try to form a view
20 whether the matter has been established on the balance
21 of probabilities.
22 MR UNDERWOOD: Thank you. Sir, I know that the team has
23 invited any further submissions or matters that call for
24 direction to be raised by anybody else, and I know that
25 Mr Green has a matter to raise with you. Perhaps I can
31
1 invite him to deal with that.
2 THE CHAIRMAN: Yes, Mr Green?
3 MR GREEN: Sir, you may recall when Constable Gordon Cooke
4 was giving evidence and the question of the likeness of
5 the person Marc Hobson to the person Mark [XXXX] was
6 raised with Constable Cooke, there was material
7 available to us which we endeavoured to put on to the
8 system, but for, I think, security reasons it was
9 impossible to do it. We operated on the basis that
10 eventually the clearance would be given for that
11 material and it seems that, unfortunately, that's not
12 possible.
13 The only document -- and there were a number of
14 documents that were talked about at the time -- we would
15 seek for the Panel to have is the most recent photograph
16 of the person known as Mark [XXXX]. The reason why we
17 say that that's an important document, sir, is because
18 certainly it will be our submission that, in terms of
19 the similarity between Mark [XXXX] and Marc Hobson, it
20 is an important issue that the Panel may need to
21 consider in determining the accuracy of a number of
22 police officers, most particularly Constable Neill --
23 sorry -- Constable Cooke
24 THE CHAIRMAN: The issue about Constable Neill is whether,
25 as he says, he put the wrong name to the right face, or
32
1 had the right face and it wasn't that of Hobson.
2 MR GREEN: That was certainly part of the questioning of
3 Constable Cooke, but an added feature of that, which is
4 not answered just by reference to whether he put the
5 wrong name to a face is whether, in fact, there is scope
6 for the possibility that, in fact, two people were so
7 alike in appearance that there could have been a genuine
8 mistake made.
9 Now, quite what the force of that is, sir, is
10 impossible to predict with the Panel, but certainly the
11 material that we thought would be available to the Panel
12 would include, not just the evidence that was called on
13 the subject, but also a photograph to assist in some way
14 THE CHAIRMAN: In that event, we shall need, shall we not,
15 both a photograph of [XXXX] as he was then and
16 a photograph of Hobson as he was then.
17 MR GREEN: Yes, indeed.
18 THE CHAIRMAN: If you say there is a question of whether the
19 two were sufficiently alike for there to be confusion
20 between the two, we can't look at that unless we have
21 a likeness of both, a contemporaneous likeness.
22 MR GREEN: Well, indeed.
23 Now, the other document we were contemplating was
24 the custody records for both of them. I don't know
25 whether those are available. They were certainly one of
33
1 the documents that we sought to obtain.
2 THE CHAIRMAN: They would have the so-called mug shots?
3 MR GREEN: They ought to have. Perhaps, sir, the matter has
4 been raised, and I will speak with Mr Underwood in
5 greater length about how we can resolve this issue. If
6 there is a security matter involved or an issue
7 involved, then we would be content simply for the same
8 procedure to be adopted as was adopted or will be
9 adopted with the post-mortem photographs that the Panel
10 have access to.
11 THE CHAIRMAN: They are for the Panel's eyes only.
12 MR GREEN: Indeed, and it is for that purpose only that we
13 seek it. I don't think it is a matter that affects any
14 of the other parties. It is a discrete matter.
15 THE CHAIRMAN: That was the only new matter you wanted to
16 raise that was not in your written submissions?
17 MR GREEN: Yes.
18 MR UNDERWOOD: I respectfully adopt what my learned friend
19 says about the mechanism for this. We have simply taken
20 the PSNI's word for the security difficulties about the
21 photograph here, but we certainly, with the help of the
22 PSNI, got a photograph of Mr [XXXX] -- I don't know when
23 it was taken -- and no doubt we have the mug shots of
24 Mr Hobson on arrest. Certainly they can be provided to
25 the Panel in the same way as the post-mortem photographs
34
1 will be. It may well be that other advocates, for
2 example, those representing Mr Neill, might want to see
3 them as well.
4 THE CHAIRMAN: Of course, yes.
5 MR UNDERWOOD: That's what I would propose to do then,
6 assuming we can agree what photographs should go up.
7 THE CHAIRMAN: There is no difficulty about that, I take it,
8 Mr Wolfe?
9 MR WOLFE: No, sir.
10 THE CHAIRMAN: Very well. Thank you. You have your leave
11 to have this further material put before us.
12 MR GREEN: I am grateful, sir.
13 MR UNDERWOOD: Forgive me. I don't know whether anybody
14 else has any matters that they think ought to be cleared
15 away at the moment.
16 THE CHAIRMAN: Yes, Mr McComb?
17 MR McCOMB: I think, sir, it is hard just to formulate this
18 totally comprehensively, but perhaps on an analogy with
19 the material which may be removed from the public domain
20 at this stage with the composite documents, I would wish
21 perhaps to have a short address to you in relation to
22 the allegations against some of my clients.
23 I appreciate it is a voluminous amount and it is hard to
24 distil totally those which fall within the terms of
25 reference and those which don't. Just very briefly, it
35
1 would be my respectful submission that a lot of that
2 material --
3 THE CHAIRMAN: Forgive me if I interrupt you, Mr McComb.
4 Wouldn't it be better to say how the allegations are
5 connected with the terms of reference?
6 MR McCOMB: Absolutely.
7 THE CHAIRMAN: Because if they are not, then they go.
8 MR McCOMB: Certainly those which are not, go, I would hope,
9 in exactly the same way as the other material will go in
10 relation to other parties.
11 THE CHAIRMAN: Nothing will be published on the website of
12 the written submissions. So the fact that there may,
13 some may say, have been transgressions in not realising
14 what the terms of reference limit us to is in the
15 written submissions is neither here nor there.
16 MR McCOMB: That makes it very clear for me, sir. Thank you
17 very much.
18 THE CHAIRMAN: I hope it is very clear that if it is desired
19 to pursue a matter that needs to be linked with our
20 terms of reference, the matter can't be pursued in any
21 oral submission until we are satisfied that the link has
22 been established.
23 MR McCOMB: Absolutely. I am grateful, sir.
24 MR UNDERWOOD: Even after all my experiences here, I still
25 underestimate the degree of cooperation that I get and
36
1 the speed with which we can get through things.
2 Embarrassingly, having allowed a day and a half for
3 these directions, we have done it in less than an hour.
4 Unless there is anything else arising, I think that's
5 all I can ask you to deal with.
6 THE CHAIRMAN: We had better go while the going is good
7 before someone has second thoughts. Very well then.
8 (2.55 pm)
9 (The hearing concluded until Monday, 7th December)
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