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Transcript (Morning Session)
Hearing: 8th December 2009, day 71
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PUBLIC INQUIRY INTO THE DEATH OF
ROBERT HAMILL
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Held at:
Interpoint
20-24 York Street
Belfast
on Tuesday, 8th December 2009
commencing at 10.30 am
Day 71
2 (10.30 am)
3 Closing submissions by MR McGRORY (cont.)
4 THE CHAIRMAN: Mr McGrory, just before you begin, you will
5 not forget before you complete your submissions to
6 answer the question I put to you yesterday and you were
7 taking time to think about.
8 MR McGRORY: Yes, I have thought about it, sir.
9 THE CHAIRMAN: In your own time.
10 MR McGRORY: Yes. Perhaps I will do it a little bit later
11 today.
12 THE CHAIRMAN: Yes.
13 MR McGRORY: Sir John raised with me yesterday the question
14 of really why would McBurney do this in the context of
15 the allegation we make, that Detective Chief
16 Superintendent McBurney, who was the person who clearly
17 had sole responsibility for the direction of the
18 investigation into the Atkinson's involvement in the
19 murder as an accessory after the fact by tipping off
20 Hanvey was solely his responsibility. I think the
21 preponderance of the evidence would suggest that.
22 I mean, we accept what Mr Irwin says when he says
23 that at every stage of the investigation where a certain
24 turn was taken, it was taken at the direction of
25 Detective Chief Superintendent McBurney, and he accepted
1
1 that and accepted his logic in that.
2 The obvious question has to be: if we are saying
3 this was a corrupted direction of the investigation,
4 which it must be, if what we say is right, which is that
5 he deliberately took certain turns in particular
6 directions rather than doing what we submit would have
7 been the obvious and --
8 THE CHAIRMAN: Deliberately in order to shield Atkinson?
9 MR McGRORY: In order to shield Atkinson. I've made it very
10 clear we are making that allegation.
11 THE CHAIRMAN: Oh, yes.
12 MR McGRORY: At each of those staging posts at which we say
13 the investigation should have gone in this direction,
14 a different direction was taken, and that might have
15 been a mistake on the first occasion, but as they mount
16 up, we are making the submission that the evidence is
17 building, that this must have been a deliberate course
18 of action in order to protect Atkinson.
19 The underlying theme there as well, of course, is
20 the complete and absolute absence of any recording of
21 the reasoning for those decisions having been taken, we
22 submit is certainly consistent with the argument that we
23 make that the inference may be drawn these were
24 deliberate decisions.
25 Now, we also say it is inconsistent with McBurney's
2
1 other behaviour at the beginning of the investigation
2 when the allegation against Atkinson came to his
3 attention in May, in that he told everybody. I mean,
4 the lack of recording of his strategy, in our
5 submission, does not sit well with the fact, as the
6 investigation progressed, he did tell people that
7 Atkinson -- that this information had come into the
8 system and that he was a suspect as an accessory to the
9 murder after the fact.
10 That is also inconsistent, it may be said, with my
11 argument that Detective Chief Superintendent McBurney
12 has deliberately directed the investigation in this
13 other way.
14 Now, what we say to that is Detective Chief
15 Superintendent McBurney may not have set out with that
16 intention, but that, at a certain point, the opportunity
17 certainly arose for him to take a different course, and
18 that opportunity clearly arose between the interviews of
19 9th September and 9th October, when the ICPC, for some
20 inexplicable reason, which we will come to, absented
21 itself from the supervision of the investigation.
22 The question then must arise: even if he had
23 an opportunity, why would he take it? Why would
24 a Detective Chief Superintendent take it upon himself to
25 defend the good name of the RUC by deliberately
3
1 compromising or sabotaging his own investigation into
2 an allegation that there was a corrupt policeman in the
3 Land Rover when Robert Hamill was attacked and murdered?
4 Our answer to that has to be he either did it on his own
5 or he had some guiding hand
6 THE CHAIRMAN: Some?
7 MR McGRORY: Guiding hand. He may have had an indication
8 from someone above him -- he may have had -- that he
9 could behave in this way or that he should behave in
10 this way if the opportunity arose.
11 THE CHAIRMAN: That must be nothing more than speculation,
12 surely, and it is certainly nothing that was ever
13 suggested to any of his seniors.
14 MR McGRORY: No, it wasn't.
15 THE CHAIRMAN: I don't mean that you have to say, "You did
16 this", but one way in which counsel can deal with this
17 is to say, "Mr so and so, I am not suggesting this is
18 what you did, but it is an issue which the Tribunal will
19 have to consider and so I give you the opportunity to
20 deal with it. Did you do so and so?"
21 MR McGRORY: Yes. I accept that wasn't, and it wasn't for
22 a particular reason. I am now coming to that very
23 reason.
24 We make the submission that if there was a guiding
25 hand, it might have been Sir Ronnie Flanagan. Now, we
4
1 did not put that to Sir Ronnie Flanagan, and I think,
2 had I put it to him, I would have been rightly
3 criticised for putting an allegation of bad faith
4 without foundation
5 THE CHAIRMAN: You wouldn't have been criticised, I think,
6 if you had simply said, as I have suggested to you, "It
7 is an issue which we shall invite the Tribunal to
8 consider and I give you the opportunity to deal with it.
9 Did you?" rather than "You did".
10 Do you see the difference?
11 MR McGRORY: I see the difference, sir, and I say this with
12 the greatest respect to you, but I am mindful, when
13 I did do this with P39, when I asked her just about the
14 disappearance of her journals and whether or not there
15 might have been some ulterior motive for that, I was
16 perhaps -- it was correctly pointed out to me, "Look,
17 you can't make an allegation of bad faith unless you
18 have some basis upon which to do so". I accepted that.
19 I think I was maybe mindful of that when
20 I approached Sir Ronnie Flanagan, because at the time we
21 were in the witness box we had no basis -- while we had
22 our suspicions that he may not have been telling you the
23 truth, we had no basis for putting that to him.
24 I am now going to make a submission that we have
25 a basis now for submitting to you that
5
1 Sir Ronnie Flanagan has lied to this Inquiry in a very
2 material respect.
3 Now, when a chief constable comes to give evidence
4 to a Judicial Inquiry on oath, one would expect that
5 chief constable to have a very high degree of
6 creditworthiness by virtue of his office. I think every
7 witness comes to a court with a degree of
8 creditworthiness assumed, but if someone holds high
9 office, one can assume they have a higher degree of
10 creditworthiness, and one can expect they will be told
11 the truth.
12 Sir Ronnie Flanagan would -- in terms of those
13 factors which go into the issue of creditworthiness,
14 there are four elements to it, I submit. There is
15 a knowledge of the facts, which is: to what extent does
16 this person know what they are talking about? There is
17 the question of: to what extent does this person have
18 an interest in the outcome, the question of their
19 interestedness or disinterestedness. There is the
20 question of the person's integrity. There is the
21 veracity of what it is they are saying to you and there
22 is the value that person appears to hold for the oath.
23 Now, Sir Ronnie Flanagan was asked whether or not he
24 had made the remarks which were attributed to him by
25 Anthony Langdon
6
1 THE CHAIRMAN: Yes.
2 MR McGRORY: I will come to that document.
3 THE CHAIRMAN: He was asked by you about that, wasn't he?
4 MR McGRORY: Yes, he was.
5 The document begins on page [39692]. At paragraph 3
6 Mr Langdon said of his conversation with
7 Sir Ronnie Flanagan:
8 "I generally found the chief constable in a pretty
9 defensive and critical mood.
10 "In particular -
11 "He commented that Hamill's death could well have
12 been caused by his own family cradling his head in a way
13 that led to oxygen starvation;
14 "Although he accepted that Hamill's death had
15 resulted from the beating, he thought that the
16 connection was indirect, and that it might well not have
17 been possible to sustain a charge of murder if the issue
18 had been tested at trial;
19 "He thought it was noteworthy that it was Hamill's
20 sister rather than his partner who was making the
21 running, and that the sister (Diane) had her own agenda
22 to discredit the RUC."
23 THE CHAIRMAN: Mr McGrory, it is apparent from the questions
24 you put to the chief constable that you had a copy of
25 that document to help you.
7
1 MR McGRORY: Oh, yes. I put the document to him.
2 THE CHAIRMAN: Yes.
3 MR McGRORY: He denied categorically that he said those
4 things.
5 THE CHAIRMAN: Forgive me. I am only wanting to make sure,
6 because, at the time the chief constable gave evidence,
7 Mr Langdon had not yet signed a statement to the
8 Inquiry, I think.
9 MR McGRORY: No, he had not.
10 THE CHAIRMAN: So there may have been some material you
11 didn't have.
12 MR McGRORY: Yes.
13 THE CHAIRMAN: I am just establishing this is material you
14 did have.
15 MR McGRORY: Yes, this is material I did, sir. This was the
16 difficulty when cross-examining Sir Ronnie Flanagan. It
17 is just the way the evidence fell. You know, these
18 documents came to light over the summer, when there was
19 another trawl as a result of some evidence that was
20 heard in May through the Northern Ireland Office
21 material, and they were redacted for a period, and then
22 the identity of the people was eventually established.
23 Then it was really only after Sir Ronnie Flanagan
24 categorically denied that he made those remarks that the
25 request was then made for the names of these people to
8
1 be disclosed and that they give evidence.
2 We will not forget the evidence of Mr Langdon in
3 this regard. He had taken a note which was relatively
4 contemporaneous. It was written up within a couple of
5 days, but when he was pressed on his note, he said, "It
6 is not just a matter of my note. I actually remember.
7 I remember Sir Ronnie Flanagan making a cradling
8 motion", to emphasise the point that he was making to
9 Anthony Langdon, to him.
10 The point made by counsel for Sir Ronnie Flanagan in
11 respect of the note was that the purpose of the note was
12 that there would be a record of what it was he was told
13 by these people. This was a very important task he was
14 engaged in. He was appointed -- he seems to have been
15 a retired, high-ranking Home Office civil servant, and
16 xxxxxxx was concerned that questions of
17 whether or not there should be public inquiries into
18 certain controversial deaths be fully considered by the
19 Executive.
20 Therefore, Anthony Langdon was commissioned to
21 assist him in that task. He obviously took his
22 commission very seriously and he took a detailed note
23 and he reported to xxxxxxxx. This is the
24 record of what it is he found.
25 Now, that is in direct contradiction to what
9
1 Sir Ronnie Flanagan said. He said very clearly to this
2 Tribunal that he did not say those things and that it
3 would have been a disgraceful thing for him to have
4 said, but he didn't say them.
5 Now, in our respectful submission, that is not the
6 truth. He said them and he knows he said them.
7 Therefore, his creditworthiness before this Tribunal is
8 in tatters, because the higher the degree of
9 creditworthiness a witness brings to a court, the
10 greater the fall, in our respectful submission.
11 This Tribunal now must look at the conduct of
12 Sir Ronnie Flanagan from the beginning to the end
13 through a different prism
14 THE CHAIRMAN: Now, this is an important matter and I am
15 wondering whether we --
16 MR McGUINNESS: I wonder, sir, whether I might address you?
17 As you are no doubt aware, sir, I appear on behalf
18 of Sir Ronnie. I let Mr McGrory make his submissions.
19 It is entirely appropriate, I say, he can make
20 submissions to you, sir, on the creditworthiness or not
21 of Sir Ronnie Flanagan, as he can on any witness, but
22 when Mr McGrory goes further and puts or suggests
23 an inference that ought to be drawn, sir, is that
24 Sir Ronnie Flanagan was a directing hand -- and that's
25 not a matter that was express in my submission from his
10
1 written submissions. There was a suggestion that there
2 may have been a directing hand from more senior officers
3 but it was not expressly attributable in the manner in
4 which he is now seeking to do it.
5 I say, sir, that it is a central tenet of fairness
6 that a person against whom a serious allegation such as
7 that is to be made, it is put to him and has the
8 opportunity to give evidence in reply to that. I say
9 that was not done. The fact that Mr McGrory explains
10 that in a manner, sir. He says, "I didn't know or
11 couldn't have put that to Sir Ronnie", but I say the
12 fundamental flaws in that, sir, have been identified by
13 your observation that he had the letter
14 THE CHAIRMAN: Forgive me. I am not going to stop these
15 submissions. It may be that we might have to say in our
16 report that Sir Ronnie did not have the opportunity to
17 deal with it, but I am not going to stop the
18 submissions, but I was going to -- I was just saying to
19 Mr McGrory, when you came to the fore, that this was
20 a serious matter and it might be helpful to us now to
21 look at the transcript to see exactly what Sir Ronnie
22 did say when this matter about the cradling was put to
23 him.
24 MR McGUINNESS: I accept that that may be of interest to the
25 Inquiry. However, sir, that does not, in my respectful
11
1 submission -- it is not necessarily kernel to the issue,
2 because the matter was put to Sir Ronnie. Sir Ronnie
3 denied it. Mr Langdon had not signed the statement at
4 that stage. The document was there. There could be no
5 greater force potentially, in my respectful submission,
6 of any cross-examination or any matter put to
7 Sir Ronnie Flanagan. So that one particular
8 recollection, sir, doesn't -- Sir Ronnie, in fact, on
9 that particular detail indicated that it was
10 a difference of nuance.
11 THE CHAIRMAN: Forgive me for interrupting, Mr McGuinness.
12 There is a distinction between a Tribunal of this nature
13 and a criminal or civil court.
14 In the criminal or civil court the court has only to
15 consider the parties to the litigation. Therefore, if
16 one party doesn't follow the normal rules of putting his
17 case and so on, the judge may quite properly say, "No
18 more of that", but here there are no parties, in the
19 sense that there are in a piece of litigation in the
20 civil or criminal courts, and the public is a very
21 interested observer of what we hear and of what we say
22 and do. However regrettable it may be, if there was
23 an opportunity for something to be put and it was not,
24 and I am not making any comment about that at the
25 moment, it is in the public interest that, if the matter
12
1 is raised, the rules which would apply in civil or
2 criminal proceedings to stop someone from pursuing
3 a matter should be able to be ignored for the sake of
4 the public interest in the Tribunal arriving at the
5 truth.
6 MR McGUINNESS: I accept that is a general proposition that
7 may be correct and that the Tribunal are not prevented
8 or are not restricted by any procedural rules of
9 evidence, but what I say is a relevant matter that ought
10 to be taken into consideration in this particular matter
11 is that this Tribunal must, in my respectful submission,
12 ensure fairness to all of the witnesses who give
13 evidence. Each particular witness has a right under the
14 Convention under Article 6 to have a fair hearing and,
15 whilst there is a public interest, there is a balancing
16 exercise that must be carried out, sir, by the Tribunal.
17 That balancing exercise must balance both the public
18 interest and the interests of the particular witness.
19 I say that --
20 THE CHAIRMAN: Mr McGuinness, there is no problem. It will
21 be open to Sir Ronnie, if he wishes, to submit a further
22 written statement to the Inquiry which the Inquiry will
23 consider, and it will be no use -- and I am sure
24 Mr McGrory would accept this -- in saying "Oh, well,
25 I want to cross-examine or question Sir Ronnie further".
13
1 He has had his chance.
2 By all means, if Sir Ronnie wishes to present to the
3 Inquiry a further written statement, it will be
4 received. I can see no difficulty about that.
5 Mr Underwood, can you?
6 MR UNDERWOOD: No, I can't, sir. I should also point out in
7 fairness that Mr McGrory has laid out exactly this
8 ground in his written closing submissions. His written
9 closing submissions take two forms. There is the form
10 in which we forced everybody to squeeze their written
11 work and a free-standing document containing the same
12 words. In the free-standing document it starts at
13 page 168, paragraph 17.
14 I think, if I may say so, he is faithfully following
15 what he has put there. So I apprehend this is not a new
16 set of allegations with which Sir Ronnie has had no
17 chance to deal.
18 THE CHAIRMAN: Thank you.
19 Mr McGrory, I was going to say this is an important
20 matter and it would be of help to the Tribunal if we see
21 the transcript of Sir Ronnie's evidence on this very
22 point when the matter of cradling was put to him. It is
23 Day 61.
24 MR McGRORY: My written submissions set out that very
25 portion of the transcript.
14
1 THE CHAIRMAN: I would like to see the transcript in case
2 there is more we need to look at.
3 MR McGRORY: It is Day 61.
4 SIR JOHN EVANS: I think it is on the screen now.
5 THE CHAIRMAN: It was on the screen. Have you switched it
6 off or have I pulled it? Someone is coming to the
7 rescue.
8 MR McGRORY: I quote from page 256, line 11 onwards,
9 paragraph 21 of my written submission. Sorry, sir.
10 THE CHAIRMAN: Wait for that to come up on the screen, will
11 you?
12 MR UNDERWOOD: We need page 256 of this transcript.
13 SIR JOHN EVANS: Wait two minutes, Mr McGrory, please.
14 I don't have your written submission here. May I go and
15 get it?
16 MR McGRORY: Oh, yes, please. It is at page 169 of my
17 written submissions, if that is of any assistance to
18 anybody.
19 THE CHAIRMAN: What is the page on the transcript?
20 MR McGRORY: At page 256, line 11, I begin quoting. I will
21 wait for Sir John.
22 THE CHAIRMAN: I certainly have on my screen now -- can you
23 put -- yes, it is on our big screens as well.
24 MR McGRORY: I begin quoting from page 256, line 11 within
25 the written submission at page 169, paragraph 21 where
15
1 I asked Sir Ronnie Flanagan about this document.
2 THE CHAIRMAN: Just a moment.
3 MR McGRORY: Sorry, sir. Yes.
4 The response of the chief constable to this document
5 is at 256, line 11:
6 "Question: Would you go on and look at that
7 paragraph:
8 "'He commented that Hamill's death could well have
9 been caused by his own family cradling his head in a way
10 that led to oxygen starvation.'
11 "Where do you get that?
12 "Answer: I think that's a quite disgraceful record
13 of the conversation that we had. What was suggested to
14 me -- I remember being absolutely shocked when Robert
15 Hamill died, because my belief was that he was
16 progressing well and that he was not at risk of dying.
17 In asking people -- and I think it may well have been in
18 a conversation with Maynard McBurney -- there would have
19 been a general discussion that sometimes people, not
20 specifically the family, but even police at the scene
21 who would cradle a person, but to suggest that Robert
22 Hamill's death was due to anything other than the
23 beating he received at the hand of his assailants is
24 absolutely disgraceful.
25 "Question: So do you dispute the manner in which
16
1 this has been recorded?
2 "Answer: Absolutely.
3 "Question: As for the next bit:
4 "'He thought it was noteworthy that it was Hamill's
5 sister rather than his partner who was making the
6 running and that the sister (Diane) had her own agenda
7 to discredit the RUC.'
8 "Did you make that remark?
9 "Answer: Certainly I did not make that remark.
10 I would not ascribe that to Robert Hamill's sister.
11 "Question: Had you made the remark, do you agree
12 that it would be a reprehensible attitude to be
13 displaying?"
14 So in my respectful submission Sir Ronnie Flanagan
15 has denied certainly he made the remark about
16 Diane Hamill that's attributed to him. I believe he is
17 also denying that he made the remarks concerning the
18 oxygen starvation to Anthony Langdon that are also
19 attributed to him. He certainly flatly contradicts the
20 manner in which it is recorded.
21 THE CHAIRMAN: He denies making any suggestion that the
22 death was due to the way his head had been cradled as
23 opposed to being the result of the attack upon him.
24 MR McGRORY: Yes. He denies that. In my respectful
25 submission, that is what he has done. He has denied
17
1 that he even suggested that, whereas Anthony Langdon has
2 attributed such a comment to him in his note, and then
3 he certainly makes an absolute outright denial that he
4 would have said anything about Diane Hamill.
5 THE CHAIRMAN: Yes.
6 MR McGRORY: So, in my respectful submission, that's not the
7 truth, that Sir Anthony Langdon's record should be taken
8 as the reality of the conversation between the two men,
9 and then you have Sir Anthony Langdon's recollection,
10 not just that remarks about oxygen starvation and the
11 cause of death were made by Sir Ronnie Flanagan, but he
12 actually made a cradling motion. So that reinforced the
13 point and it certainly was the reason why
14 Sir Anthony Langdon actually remembers it all these
15 years later.
16 So, in our respectful submission,
17 Sir Ronnie Flanagan has lied to this Tribunal on that
18 issue. He had notice. He was given the Pilling and
19 Langdon documentation before he came to give evidence
20 and he was ready to deal with it and he denied that he
21 said any such thing.
22 Sir Ronnie Flanagan began his engagement of this
23 Inquiry in July 2006 and at paragraph 10 of his
24 statement, page 80286 --
25 THE CHAIRMAN: Is it in your bundle as well?
18
1 MR McGRORY: It is, but I will just get it up on the screen.
2 MR UNDERWOOD: I think it is [80266].
3 MR McGRORY: I have said 80286 instead of [80268].
4 I think that is it:
5 "I first became aware that allegations had been made
6 that a reserve constable assisted a suspect in around
7 June 2000."
8 Now, he told us this Inquiry, when first asked when
9 he had first become aware of this, that he did not
10 become aware of it until June 2000:
11 "I first became aware ..."
12 Now, we know that's not true, because he at least
13 became aware of it on the morning of Monday, 12th May,
14 when it was brought to the table at the weekly meeting
15 of the chief constable and assistant chief constables.
16 I can't remember the name of the chief constable who
17 brought it to the table -- the assistant chief
18 constable -- but it was on the agenda. It was certainly
19 ACC Hall's note of the meeting.
20 REV. BARONESS KATHLEEN RICHARDSON: 1997?
21 MR McGRORY: Sorry, 1997. The 12th May meeting two days
22 after Tracey Clarke put the allegation into the system.
23 So he was aware of it from that point, at least from
24 that point. We will also recall that
25 Sir Ronnie Flanagan spoke to Detective Chief
19
1 Superintendent McBurney twice on Saturday, 10th May, the
2 very day that Tracey Clarke signed her statement.
3 Now, we put very forcefully to Sir Ronnie Flanagan
4 that it was inconceivable that Detective Chief
5 Superintendent McBurney, having spoken to him twice on
6 a Saturday to tell him about what Tracey Clarke had
7 said, omitted to tell him that she made a very serious
8 allegation about a police officer tipping off one of the
9 murderers.
10 Now, Sir Ronnie Flanagan denied any recollection of
11 ever having been told that on 10th May. Unfortunately,
12 Detective Chief Superintendent McBurney died before we
13 were able to ask him did he raise that particular part
14 of the statement of Tracey Clarke, but we submit that it
15 is inconceivable that he didn't. We go further and
16 submit it is probable that the purpose of the phone
17 calls was because of the Atkinson allegation more than
18 anything else
19 THE CHAIRMAN: Just pause there.
20 MR McGUINNESS: Sir, there is one matter which Mr McGrory
21 has raised which is factually inaccurate, in my
22 respectful submission. It might be easier to deal with
23 it now. Mr McGrory has indicated that the telephone
24 conversation on 10th May was between Sir Ronnie and the
25 Detective Chief Superintendent and that having spoken to
20
1 him twice on a Saturday to tell him about what
2 Tracey Clarke had said.
3 Now, in my respectful submission, that's not the
4 evidence that that was the nature of the telephone
5 conversation. Mr McGrory can suggest to you whether it
6 is likely or not that it was mentioned, but the evidence
7 is that, in my respectful submission, not that that
8 conversation was about what Tracey Clarke had said;
9 rather, it was to do with the arrests that had taken
10 place that day.
11 So I say that submission is factually inaccurate,
12 sir
13 THE CHAIRMAN: That's not quite what Mr McGrory is saying.
14 He is not talking about what was said, but what was not
15 said. The point Mr McGrory is making is, whatever else
16 McBurney needed to say to the chief constable, this
17 surely was something he would also have mentioned.
18 So the fact that the Chief Constable says, "I was
19 told about the arrests", does not invalidate the point.
20 Whether the point is a good one or not is for us to
21 decide later.
22 MR McGUINNESS: It does not invalidate the point, but he is
23 suggesting that to corroborate or strengthen that point
24 the evidence is that the purpose of that telephone
25 conversation was to do with Tracey Clarke and,
21
1 therefore, as a result of that, it is inconceivable that
2 the matter wasn't raised. I say, sir, that is not the
3 evidence. So, whilst that contention can be advanced,
4 it can't be advanced, in my respectful submission, on
5 that factual basis.
6 THE CHAIRMAN: Just let me have a look.
7 I have in front of me Mr McGrory's question. I will
8 read it out:
9 "Now we put very forcefully to Sir Ronnie Flanagan
10 that it was inconceivable that Detective Chief
11 Superintendent McBurney, having spoken to him twice on
12 a Saturday to tell him about what Tracey Clarke had
13 said, omitted to tell him that she made a very serious
14 allegation about a police officer tipping off one of the
15 murderers."
16 Now, that does not seem to me to be inconsistent
17 with what you are putting to me
18 MR McGUINNESS: I don't say it is inconsistent, sir. I say
19 that the presumption is that the evidence is that the
20 conversation was to do with what Tracey Clarke had said.
21 My understanding of the evidence is, sir, that that
22 was never evidence. Rather, the evidence is that there
23 was a telephone call between them and the purpose of
24 that telephone call was to deal with the arrests.
25 So I don't demur from --
22
1 THE CHAIRMAN: Can you remind us where we find that
2 evidence, please?
3 MR McGUINNESS: The evidence will be found -- the only
4 evidence will be from the interview of Mr McBurney, sir,
5 and the evidence of Sir Ronnie Flanagan. Those are the
6 only two parties to that telephone call.
7 THE CHAIRMAN: Yes.
8 MR McGUINNESS: If you will allow me, sir, I will take the
9 opportunity over the break and attempt to find
10 whereabouts --
11 THE CHAIRMAN: Very well. I will allow Mr McGrory to go on
12 for the moment and then you can give us chapter and
13 verse later.
14 MR McGUINNESS: Yes.
15 THE CHAIRMAN: Very well.
16 MR McGRORY: On 10th May, as a consequence of
17 Tracey Clarke's statement, quite a number of people were
18 arrested, including Allister Hanvey. That was a major
19 development in the investigation.
20 THE CHAIRMAN: Yes.
21 MR McGRORY: It is irrefutable that the reason why Detective
22 Chief Superintendent McBurney was talking to
23 Sir Ronnie Flanagan on two occasions that day was to
24 brief him on the fact that they had arrested a number of
25 people and it is my submission that he must have told
23
1 him the reason why those arrests were being made, that
2 they had a statement from a young Protestant girl who
3 was an eye witness to these events, and who was able to
4 give them first-hand information of those who had been
5 engaged in the attack on Robert Hamill.
6 I think Sir Ronnie has even accepted that that's the
7 purpose of why he was speaking to Detective Chief
8 Superintendent McBurney.
9 Now, we have no evidence for sure that Detective
10 Chief Superintendent McBurney informed him of the
11 element of the statement of Tracey Clarke concerning the
12 allegation of Reserve Constable Atkinson. The height of
13 our submission has to be that it is inconceivable that
14 he didn't tell him. I mean, he told everybody else.
15 On the Monday he told -- he went and spoke over the
16 weekend to the subdivisional assistant chief constable.
17 He told him. On the Tuesday, he had meetings with the
18 DPP and he told them. He personally told Mr Murnaghan
19 in the ICPC. So he told everybody he ought to have
20 told.
21 We submit that it is inconceivable that -- and this
22 is an inference that we are asking you to draw --
23 McBurney, having told all of those other people at the
24 earliest opportunity that he had to speak to those
25 people, that he wouldn't have also told his chief
24
1 constable --
2 THE CHAIRMAN: Yes.
3 MR McGRORY: -- when he spoke to him on the Saturday,
4 10th May.
5 THE CHAIRMAN: Yes.
6 MR McGRORY: Within hours of the statement having been made,
7 we submit.
8 So what we are asking you to do is, in view of what
9 we say about Sir Ronnie Flanagan, you must now revisit
10 what he has told this Inquiry about his state of
11 knowledge and when he acquired that knowledge about the
12 allegation that one of his police officers had been
13 engaged in this corrupt and unlawful activity.
14 At the very least, at the very least, it was raised
15 at the meetings of the chief constables on the Monday.
16 Now, thereafter, we have heard evidence that one of
17 those assistant chief constables made it his business --
18 I think that was Fred Hall -- to go and tell the ICPC
19 and to phone Mr Murnaghan directly to make sure they
20 knew.
21 It is Sir Ronnie Flanagan's evidence, "Look, I don't
22 remember that I knew around 10th, 11th, 12th May that
23 that allegation was in the system, but I accept that it
24 must have come to the table, but as far as I was
25 concerned, if I did know, then it was being dealt with,
25
1 because the ICPC were on board", and he takes the credit
2 for bringing them in and certainly the wonderful --
3 I don't mean this facetiously -- a very experienced and
4 trustworthy detective was involved in the investigation
5 and they could rest easy.
6 But his evidence is then he forgot about it. He
7 forgot all about it, because he has no memory. He has
8 told the Inquiry he didn't know anything about it until
9 June 2000.
10 I am submitting to you that cannot be the truth. It
11 cannot be the truth that a chief constable of a police
12 force, any police force, is informed that one of his
13 officers was involved in assisting a murderer by tipping
14 him off how to escape detection and that he instantly
15 forgets about it
16 THE CHAIRMAN: Well, "instantly" may not be the right word;
17 has since forgotten about it.
18 MR McGRORY: Has since forgotten about it.
19 Then there is the December correspondence from the
20 Secretary of State. Now, I am sure this correspondence
21 is indelibly imprinted on your minds, because I opened
22 it with a number of witnesses and I do not intend to
23 open it in any detail again.
24 I make two points about this correspondence. The
25 most important point I make about it is, in my
26
1 submission, that there was an engagement about the
2 allegation that Reserve Constable Atkinson was involved
3 to the extent that he was involved within the upper
4 ranks of the RUC between the assistant chief constable
5 and the chief constable, because the Secretary of State
6 wrote to Sir Ronnie directly and said, "There are
7 rumours that have been brought to my attention by the
8 Hamill family that there are some connections between
9 the police in the Land Rover and those who murdered
10 Hamill. I want to know as much about all of these
11 things, or quite a number of things on the list. I want
12 as much information as possible".
13 It goes over to Assistant Chief Constable
14 White, ACC of Crime. It goes down to
15 Inspector Irwin. Inspector Irwin sends it back up with
16 the information saying, "There is an allegation. There
17 is a file", but the response which goes to Dr Mowlam,
18 and I will come to this a little bit later, in my
19 respectful submission, is potentially misleading but
20 certainly very economical with any detail.
21 The first point I wish to make about that
22 correspondence is that the office of the assistant chief
23 constable and the office of the chief constable had to
24 confront this situation. It is only -- it is a matter
25 of months since it was brought to their attention that
27
1 the allegation was made and was in the system, but by
2 December, they had to engage with it, because the
3 Secretary of State, as was her statutory right, asked
4 for information. So, therefore, there was another
5 occasion in which the office of the chief constable and
6 the office of the assistant chief constable had to say
7 "What about this?"
8 What I am submitting is it must have been in their
9 minds. They didn't need to know what the Secretary of
10 State was talking about. The Secretary of State does
11 not know. She has only heard what the Hamill family
12 told them about rumours. She asked a direct question.
13 She is told very little, but in order to tell her very
14 little, a decision had to be made to tell her very
15 little. ACC White says in his memo to the chief
16 constable, "Say as little as possible about this to the
17 Secretary of State."
18 Now, the evidence is that, for operational reasons,
19 you would not tell a politician and you would not
20 necessarily want it to get out, but, at the very least,
21 decisions have to be taken about what the Secretary of
22 State should know, and, in the process of making those
23 decisions, it is my submission they must have had to
24 revisit the substance of the allegation
25 THE CHAIRMAN: Well, this point you are making now does not
28
1 turn upon a criticism of the extent of the information
2 which the Secretary of State received, but simply that
3 the tipping-off allegation was drawn to the attention of
4 the two offices in consequence of the Secretary of
5 State's request.
6 MR McGRORY: Yes. Perhaps just while I am on the subject of
7 that correspondence I will maybe just deal with the
8 relevance of it so far as the Secretary of State is
9 concerned, very briefly, because I don't want to have to
10 reopen it.
11 We heard evidence from Simon Rogers, who was the
12 person who wrote the letter to the chief constable. He
13 told us of section 15 of the Police Act, which created
14 the power under which the Secretary of State was
15 entitled to seek information, and to seek reports from
16 the chief constable. Therefore, it was accepted she was
17 entitled to ask those questions.
18 Simon Rogers did say in evidence that he would have
19 expected that if the chief constable had been aware of
20 the substance of the allegation about Reserve
21 Constable Atkinson, that he would have told the
22 Secretary of State.
23 Now, we wish to make no more of the fact that he
24 didn't than this, which is the Secretary of State took
25 a personal interest in this case, which she was entitled
29
1 to do as part of her executive duty. She had a wider
2 responsibility for policing, but she also, as part of
3 the executive function, undertook to try to get to the
4 bottom of the allegations on behalf of the Robert Hamill
5 family, who had visited her personally. She was
6 entitled to know a little bit more detail in order that
7 she could make her decisions about what she did with the
8 information.
9 That is not to say that she would have necessarily
10 been obliged to tell the Hamill family, certainly not at
11 that time, if there were sensitive operational reasons
12 why the family could not be told that there was a belief
13 amongst the police that one of their own number was
14 corrupt to the extent he was helping one of the
15 murderers, but she, at least, as part of her executive
16 function of supervision of the police, would have been
17 keeping a watchful eye on it
18 THE CHAIRMAN: Can you relate that criticism to our terms of
19 reference, please?
20 MR McGRORY: Yes. Everything must be focused on the
21 investigation. In our respectful submission, if the
22 Secretary of State is asking questions about the conduct
23 of the investigation and is known by those conducting
24 the investigation to be aware of the fact that there is
25 an investigation into a corrupt policeman, due diligence
30
1 might be more assured in respect of how the
2 investigation is conducted, but this Secretary of State
3 was kept in the dark.
4 THE CHAIRMAN: So, in other words, this avoided any pressure
5 to make a better job of the investigation. Is that the
6 short way of putting it?
7 MR McGRORY: That is my submission, yes.
8 THE CHAIRMAN: Just a moment. Just remind me. I have
9 a recollection of someone saying, I think from the
10 Northern Ireland Office, that the reply that the
11 Secretary of State received was a satisfactory one.
12 I believe it may have been Mr Rogers, but I'm not sure.
13 MR McGRORY: I think it was Mr Steele in his written -- in
14 his --
15 THE CHAIRMAN: Mr?
16 MR McGRORY: Mr John Steele. There was a slight difference
17 of emphasis between the two witnesses. Mr Steele did
18 not give evidence, but submitted a signed statement, in
19 which we accept that he said he had looked at the
20 correspondence and he thought it was satisfactory.
21 Simon Rogers, however, went a little bit further in
22 both his written statement and in answering questions.
23 I have set out at paragraph 38 of my written submission,
24 his answer to me on that subject, where he said -- he
25 refers to his own statement which said:
31
1 "If the chief constable was aware of the allegation
2 about Reserve Constable at this time, then I think one
3 could have reasonably expected him to inform the
4 Secretary of State regardless of the correspondence."
5 He says --
6 THE CHAIRMAN: Do you know which of the two men is the
7 senior in the department?
8 MR McGRORY: Mr Steele. My understanding of Mr Steele is he
9 was the security man within NIO, the Northern Ireland
10 Office. He was the civil servant responsible for
11 security matters. Simon Rogers, my understanding of his
12 role is he was a close member of the advisory team, who
13 had responsibility for policing, but he was the one who
14 drafted the letter to Sir Ronnie and attended a meeting
15 with the Robert Hamill family.
16 When I asked him about this, he said:
17 "I do try and address this in my statement at
18 paragraph 27, where you say:
19 "'If the chief constable, for example, in advising
20 the Secretary of State was aware of this allegation at
21 this particular time, then I would have expected him
22 perhaps to inform the Secretary of State'."
23 THE CHAIRMAN: Perhaps.
24 MR McGRORY: Perhaps. That's what he said in evidence. He
25 referred to paragraph 27 of his statement, which read:
32
1 "I think one could have reasonably expected him to
2 inform the Secretary of State regardless of the
3 correspondence."
4 So certainly, in our respectful submission, it would
5 have been perfectly proper for Sir Ronnie Flanagan to
6 have given the detail of the fact of the allegation to
7 the Secretary of State, and, indeed, I think
8 Simon Rogers goes a little bit further and says, "One
9 would have expected him to do so, had he known it".
10 It is our submission that he knew very well of it.
11 The only point I seek to make in that regard is that
12 the Secretary of State was another layer in the
13 supervisory structure of the police. I think
14 Simon Rogers also said, "Had I known, as the Secretary
15 of State's adviser, that the ICPC were not supervising
16 that, I would have directed her to use her power to
17 bring ..."
18 THE CHAIRMAN: "Advised", I expect, is the word.
19 MR McGRORY: "I would have advised her that she had that
20 power".
21 Of course, whether she chose to exercise it or not
22 is another matter, but I suspect this Secretary of State
23 would have.
24 So there are in existence many layers of supervision
25 of the police as to how they go about conducting their
33
1 business
2 THE CHAIRMAN: Just help me, will you, please, about this?
3 The Secretary of State has statutory powers to require
4 information. I don't read her letter of enquiry as
5 an exercise of that power; simply a request for
6 information. I have no doubt Secretaries of State have
7 been requesting information well before the statutory
8 power was introduced.
9 MR McGRORY: Yes.
10 THE CHAIRMAN: If it were an exercise of the statutory
11 power, one would expect the letter requesting the
12 information to mention the statutory power.
13 MR McGRORY: Yes. Simon Rogers dealt with this, sir, in
14 this way, which is that, "Yes, we all knew of the
15 statutory power. The Secretary of State knew of the
16 statutory power. The chief constable knew of the
17 statutory power. We didn't need to spell it out".
18 THE CHAIRMAN: It is in reserve.
19 MR McGRORY: Yes. "If we thought there was a difficulty,
20 then it might need to be spelt out", but it was fully
21 expected, when the Secretary of State has to question,
22 it was within the statutory power to do so and it would
23 be answered as fully as possible.
24 THE CHAIRMAN: Surely, isn't this the position: the
25 Secretary of State had the statutory power to make
34
1 a requirement. She didn't need to do so, but those who
2 received the request would know full well that there was
3 a statutory power to fall back on if there was a refusal
4 to give information.
5 MR McGRORY: Yes. Thank you.
6 Central to Sir Ronnie Flanagan's defence of himself
7 that he didn't need to inform himself in this
8 investigation, and that is the reason why he now says,
9 "I really put it out of my mind", to the extent that he
10 said, when he spoke to the Inquiry in 2006, that he did
11 not become aware of it until 2000, is his contention
12 that a chief constable should remove himself from the
13 detail of investigations, even those into the conduct of
14 his own officers, because the chief constable was the
15 ultimate appellate authority in the event of any
16 disciplinary action being taken.
17 Now, we put to Sir Ronnie Flanagan the guidance to
18 the chief constable that is issued by the Secretary of
19 State under which he operated concerning this very
20 situation
21 THE CHAIRMAN: That's the green book, isn't it?
22 MR McGRORY: It is the green-coloured book. It is on the
23 system now at page [73378]. I think it was always on
24 the system. At the very top of that page, at 11.6 of
25 the guidance, it states:
35
1 "It is recognised that in certain circumstances the
2 chief constable will, of necessity, have at least some
3 knowledge of a case while it is still under
4 consideration. For example, where the matters raised
5 are prima facie serious and would amount to
6 a substantial criticism of the force, or where members
7 of higher rank are involved, the chief constable should
8 keep himself informed of the progress of the
9 investigation.
10 "There may also be other cases where a deputy or
11 assistant chief constable may wish to consider seeking
12 the views of the chief constable, for example, where he
13 is considering calling for an investigating officer from
14 another force, or if he is in disagreement with the
15 Commission about the bringing of disciplinary charges,
16 the reference of new material to the Director of Public
17 Prosecutions or the holding of a Tribunal."
18 Now, in our respectful submission, that provision is
19 there for a very specific purpose. The purpose of it is
20 that it is expected that there may be occasions where
21 there is an allegation made against a police officer
22 that will bring substantial criticism to the force or
23 where members of a higher rank are involved, and that,
24 in those circumstances, the chief constable has the
25 power to remove himself from the disciplinary process
36
1 completely and appoint somebody else to fulfil that
2 role.
3 Now, Sir Ronnie Flanagan has said that at some later
4 point, I think probably after 2000, he considered
5 himself to perhaps have been in that position, where,
6 had it been necessary, he would have exercised this
7 power, but it does not sit well with his contention
8 that, "The reason why I was not bothering with any of
9 this and leaving it up to Mr McBurney and the ICPC to
10 deal with is because the chief constable should not
11 bother himself with the detail of such things because he
12 is the ultimate appellate authority", when he knew very
13 well he had the power to just remove himself from that
14 appellate role and involve himself in the investigation
15 and that he was expected to do so if the force could be
16 brought into disrepute
17 THE CHAIRMAN: It is a matter of judgment, isn't it, whether
18 a serious matter -- there are two matters to be
19 satisfied. It has to be serious, on the face of it, and
20 would amount to a substantial criticism of the force,
21 that's the RUC as a whole.
22 It is a matter for judgment, isn't it, whether
23 a serious allegation against a reserve constable would
24 amount to substantial criticism of the force as a whole?
25 MR McGRORY: I cannot think of any other type of allegation
37
1 or any other circumstance that could be more critical of
2 a police force than the fact that one of their
3 number was involved in the tipping off of a murderer.
4 THE CHAIRMAN: I think you have to be careful, don't you, of
5 saying they are all tarred with the same brush? That is
6 really what you are saying it amounts to.
7 MR McGRORY: Yes, but in the context of this -- I think in
8 the context of policing in any community, the fact that
9 an allegation is made that a police officer has behaved
10 in this way, in this criminal way, in the conduct -- in
11 the context of a murder reflects on the force as
12 a whole.
13 Take, for example, if it was a police force on the
14 island of Great Britain where there were racial issues
15 THE CHAIRMAN: This has nothing to do with racial issues,
16 has it?
17 MR McGRORY: No, but I am drawing an analogy separate from
18 the Northern Ireland analogy, sir.
19 THE CHAIRMAN: Yes.
20 MR McGRORY: Which is, if it was in an area of
21 Greater Manchester or area of Greater London where there
22 were issues of concern of the relationship between the
23 police and certain sections of perhaps racial minority
24 communities, where a police officer was accused of
25 tipping off a suspect in a racial murder, for example,
38
1 where a white man is accused of murdering a black man,
2 and where a police officer has not just failed in his
3 duty, but has actively engaged with the racist in terms
4 of helping him escape the consequences of his
5 involvement in the murder, that is something which would
6 reflect on the whole force, if that were to be revealed.
7 Translating that to the Northern Ireland situation,
8 in my respectful submission, nobody was more aware of
9 the cross-community difficulties of policing than this
10 chief constable. He said so himself, that it was one of
11 his priorities to try to win over the minority
12 community. He would have been acutely aware of the
13 ramifications of the fact becoming knowledge that there
14 was an investigation into a police officer for assisting
15 a Loyalist in the murder of a Catholic in Portadown of
16 all places. Therefore, this would have reflected
17 absolutely on the whole force, and this is exactly the
18 sort of case where he would have known he had the power
19 to absent himself.
20 This is a chief constable who has, from time to
21 time, brought in outside officers to investigate, as he
22 did in the murder of Rosemary Nelson, for example. He
23 brought in a police officer from an English police
24 force, because he recognised immediately the
25 sensitivities of that particular murder, and that there
39
1 would be an element within the Nationalist community
2 that wouldn't have trusted the RUC to investigate the
3 murder.
4 So in my respectful submission, there was
5 an absolutely classical case where there would have been
6 a reflection on the force as a whole of the fact that
7 that investigation -- and that is why we submit the very
8 fact that that allegation had been made and the fact
9 that evidence had come into the system from a young
10 Protestant woman, that she had witnessed the murder, she
11 knew one of the murderers and he was boasting about the
12 fact he was getting help from one of the police officers
13 in the Land Rover present at the scene as to how to
14 escape detection was a situation that would have sent
15 alarm bells ringing within the upper ranks of that
16 constabulary, and that it was inconceivable that they
17 just said when it came into the system, "Make sure the
18 ICPC are involved. McBurney is on the job. Let's get
19 on with it", and that they collectively just left it at
20 that.
21 Now, either way, we submit the chief constable must
22 be responsible at least of gross negligence if that is
23 indeed what he did do in the context of this allegation.
24 Even if it is the height of the Inquiry's findings in
25 respect of McBurney's conduct that it was grossly
40
1 negligent in the conduct of the investigation, one then
2 has to ask questions of the chief constable as to how
3 come McBurney was left entirely on his own to make these
4 mistakes, if indeed they were mistakes?
5 We submit that there is a much worse scenario here,
6 which is that the chief constable knew very well how
7 McBurney was conducting this investigation.
8 Now, we have no evidence of any contact between the
9 two men, between the phone calls on 10th May, and when
10 they spoke at some point before 9th June when Sir Ronnie
11 was briefed by McBurney before he went to see
12 xxxxxxxxxxxxxxxx, but we submit that if one is looking
13 for a reason as to why McBurney might have taken it upon
14 himself to subtly and cleverly bury this allegation,
15 that he had the nod and that nod could have come from
16 only one person, and that's the chief constable.
17 Sir, I would like to move on to another subject.
18 Perhaps we could have a short break?
19 THE CHAIRMAN: Yes. Very well. Fifteen minutes.
20 (11.30 am)
21 (A short break)
22 (11.45 am)
23 THE CHAIRMAN: Yes, Mr McGrory.
24 MR McGRORY: Yes, sir. Sir, I might actually take you up on
25 your invitation to address that question now, if you
41
1 don't mind.
2 THE CHAIRMAN: Yes, of course.
3 MR McGRORY: I am sure you remember what the question was,
4 but I will repeat it for everybody's benefit.
5 It was: suppose a civilian says "I saw X do
6 something", but the civilian refuses to make a statement
7 and refuses to be a witness. There is no evidence that
8 the police ought to have seen X do what the civilian
9 says he saw him do. In those circumstances, would
10 a finding against X be relevant to the working out of
11 the terms of reference and, if so, how?
12 My answer to that is: no, they are not relevant.
13 They are not relevant because, if what the civilian says
14 he saw X doing was of no value to the investigation,
15 then it is irrelevant for your purposes as well in
16 determining whether or not there was some fault in the
17 conduct of the investigation.
18 But, if there can be an argument made that what the
19 civilian saw X do might have been of some value to the
20 investigation and was missed by the police, then that
21 does fall to be --
22 THE CHAIRMAN: You have to add, "and should not have been
23 missed by the police".
24 MR McGRORY: Yes, of course. Should not have been missed by
25 the police.
42
1 THE CHAIRMAN: That was really encapsulated in my question.
2 MR McGRORY: Yes. I hope that answers the question from our
3 perspective.
4 THE CHAIRMAN: Yes.
5 MR McGRORY: There are two other agencies whose conduct, in
6 our respectful submission, is relevant to the conduct of
7 the police investigation, in respect of which we feel it
8 is appropriate to make some comment. Of course, there
9 are other agencies, but those two are the Independent
10 Commission for Police Complaints and the then Office of
11 the Director of Public Prosecutions.
12 In respect of the ICPC, we have already discussed
13 the fact that the ICPC took the view at some point
14 between 9th September 1997 and 9th October 1997 that it
15 no longer needed to engage itself, if indeed it was
16 engaged at all, in respect of the aspect of the police
17 investigation that concerned the allegation
18 THE CHAIRMAN: They took it as early as June, didn't they?
19 Wasn't that Mr Mullan's evidence?
20 MR McGRORY: Yes, I think it was probably taken as early as
21 June --
22 THE CHAIRMAN: 1997.
23 MR McGRORY: -- 1997. They may have taken it as early as
24 June 1997. The reason why they attended the September
25 interview is that it was substantially about the neglect
43
1 allegation concerning the Land Rover.
2 THE CHAIRMAN: That's right.
3 MR McGRORY: That's why Mr Murnaghan did not return for the
4 follow-up interview, because the follow-up interview was
5 exclusively about the tipping-off allegation. So the
6 decision was -- you are correct, sir -- taken as early
7 as June.
8 Now, the issue is -- first of all, it is our
9 submission that the absence of the supervision directly
10 affected the conduct of the investigation, because it
11 may well have been that Mr Murnaghan, had he continued
12 in his role as a supervisor of the conduct of the police
13 investigation, would have taken a different view to that
14 taken by Detective Chief Superintendent McBurney in how
15 he handled the alibi, for example, that was given by
16 Andrea McKee in the context of his believing or
17 disbelieving the alibi, believing that it was false. He
18 may have taken a different view about the way in which
19 that aspect was written up in the report, which we
20 referred to in some detail yesterday, in the sense there
21 was simply no mention as to why there might have been
22 some scepticism about the truthfulness of the alibi that
23 was put forward.
24 So, in our respectful submission, an examination of
25 the conduct of the ICPC is relevant for that reason
44
1 THE CHAIRMAN: Yes.
2 MR McGRORY: Now, there was a question that arose,
3 a legitimate question, in our respectful submission, as
4 to whether or not, as a matter of law, Mr Mullan might
5 have been right, in that the ICPC required a specific
6 referral in order to involve itself, and that, in the
7 absence of a specific referral, then they shouldn't be
8 involved, but in our respectful submission the context
9 in which all of this occurred would suggest that, as
10 a matter of fact, the aspect of the investigation that
11 concerned the tipping-off allegation was part and parcel
12 of the investigation into the conduct of the Land Rover
13 police for the very reason that Reserve
14 Constable Atkinson was one of the Land Rover police.
15 THE CHAIRMAN: But it wasn't a facet of the neglect
16 allegation, was it?
17 MR McGRORY: It wasn't, because it was unknown to those who
18 submitted the complaint.
19 THE CHAIRMAN: But even had it been known, one could not
20 have regarded it as simply a facet of the failure to get
21 out of the Land Rover soon enough.
22 MR McGRORY: Well, we say it might have been, because if you
23 have a corrupt policeman in the Land Rover, who is
24 a policeman who is prepared to tip off one of those who
25 was engaged in the attack, subsequently then he might
45
1 have been prepared to desist from intervening to the
2 benefit of the person who is being attacked.
3 THE CHAIRMAN: Is there this difficulty about that: that, on
4 the evidence, if Atkinson was corrupt, his corruption
5 did not begin until he saw Hanvey in the turmoil?
6 MR McGRORY: The problem is we don't know at what point he
7 saw him. We don't know. In Atkinson's own statement he
8 says out of the corner of his eye, at a stage once they
9 are out of the Land Rover and into the attack on
10 Robert Hamill, he saw three people jumping on
11 Mr Hamill's head.
12 That's the earliest at which he puts it, but he may
13 well have witnessed Hanvey involved in the attack at
14 an earlier stage. We simply do not know. I mean, we
15 just don't know. He may have looked out and --
16 THE CHAIRMAN: We must not speculate.
17 MR McGRORY: No, we can't speculate. In my respectful
18 submission, that has to be a subject of investigation
19 and the ICPC has to consider that the allegation of the
20 tipping-off in the context of determining whether or not
21 there was any reluctance on the part of the police to
22 intervene on Robert Hamill's behalf.
23 It need not necessarily have been confined to
24 jumping out of the Land Rover and immediately running
25 over the -- I think it was expressed in such terms, "We
46
1 believe the police did not do enough to help Robert and
2 didn't intervene". So there is a degree of flexibility
3 there.
4 The other point I make about that is, if Reserve
5 Constable Atkinson is corrupt, and if he did engage in
6 the tipping-off, then everything that he did that night
7 has to be under scrutiny, because, if he did that, he
8 did it for a purpose. The purpose was that
9 Allister Hanvey was an associate of his and he wished to
10 assist him in avoiding detection, but the other question
11 is whether or not -- why would he do that for
12 Allister Hanvey? He was not necessarily that close
13 an associate. We have dealt with some of the reasons we
14 have put forward why he might have taken that risk,
15 which was to rehabilitate himself within the community.
16 That goes to the heart of the division within this
17 society.
18 It is all relevant, in our respectful submission, to
19 the question of whether they got out of the Land Rover
20 and helped the Catholic. It was quite obvious to them
21 that it was a Catholic that was being beaten by
22 Loyalists. So it is all part and parcel of the same
23 issue, which is an issue that the ICPC should have had
24 a direct interest in, and also bearing in mind that
25 those who submitted the complaint through their
47
1 solicitor were utterly unaware, at the time the
2 complaint was submitted, that there was, in fact, any
3 evidence to suggest that Atkinson, one of the police in
4 the Land Rover, was, in fact, corrupt and very corrupt.
5 So in our respectful submission, it was a facet of
6 the investigation which the ICPC ought to have just
7 considered as part and parcel of the relevant facts in
8 the investigation of the complaint which they accept
9 they were charged -- or in the supervision of the
10 investigation of the complaint they were charged with
11 supervising.
12 If there should be any doubt about it, I would
13 simply refer you to the evidence of Paul Donnelly and
14 the --
15 THE CHAIRMAN: It is a matter of law, isn't it?
16 MR McGRORY: Of course it's a matter of law as to whether or
17 not the ICPC should have engaged itself in the
18 supervision of that aspect of the investigation, but my
19 submission is that the circumstances of the facts of the
20 event fit within the legal obligation on them to do so.
21 THE CHAIRMAN: Yes.
22 MR McGRORY: That, I respectfully submit, is borne out by
23 the second statement of Paul Donnelly, which was dated
24 6th October, concerning the practices of the ICPC in
25 such circumstances and his understanding, as Chairman of
48
1 the organisation, as to how it should have dealt with
2 it. I will take that point no further.
3 The other organisation --
4 THE CHAIRMAN: Before you leave the ICPC, you have not
5 mentioned this point. Is it something that we ought to
6 consider? Once Mullan had said, "I am sorry. ICPC are
7 not supervising the tipping-off allegation", that was
8 made known to C&D, because they were present. Was the
9 ball then in the RUC's court to consider: should this
10 now be formally referred under Article 8?
11 MR McGRORY: Absolutely, sir.
12 THE CHAIRMAN: But they didn't do so.
13 MR McGRORY: They didn't do so.
14 THE CHAIRMAN: Yes. Very well. Thank you.
15 MR McGRORY: I think, sir, Sir Ronnie Flanagan has said, had
16 he realised that it wasn't being supervised, he would
17 have invoked Article 8. He had already invoked it, but
18 he would have invoked it again.
19 Now, the office of the DPP, as it then was, took
20 a number of prosecutorial decisions. We accept that the
21 terms of reference require us and the Inquiry, before it
22 makes any finding about whether or not a particular
23 prosecutorial decision is relevant to the terms of
24 reference, that it must somehow have shaped the
25 investigation. We hope to do so in fairly short
49
1 submissions in respect of each of four decisions.
2 There was the failure to consider making
3 an application under Article 3 of the Criminal Evidence,
4 etc, Order 1988 to have the evidence of Tracey Clarke
5 admitted as documentary hearsay in the course of
6 a trial.
7 Now the decision to abandon the trial was taken
8 after the consultation that was held on 17th October
9 1997 between key witnesses -- there were two
10 consultations -- but the key witnesses were
11 Tracey Clarke, Timothy Jameson and Jonathan Wright.
12 The consultation with Tracey Clarke is noted by
13 Roger Davison of the DPP at page [17591].
14 Now during the course of that consultation on
15 17th October 1997, she said she did not want to give
16 evidence in furtherance of her statement. It has been
17 well documented that, during that consultation, did she
18 actually deny the contents of it? But she said she
19 didn't want to give evidence. The reasons that
20 Roger Davison documented are the paragraph beginning:
21 "At the end of the consultation ..."
22 It is interesting it is at the end of the
23 consultation:
24 "... she was asked about the possibility of giving
25 evidence. She stated that she would rather die than
50
1 give evidence. She said she wouldn't give evidence
2 because she loves Allister Hanvey, to whom she was
3 formerly engaged. She stated that it was hard to give
4 evidence against the others, because she knows them all.
5 She and her family are all very worried about the
6 possibility of attack by Loyalist paramilitaries. Her
7 father stated that he would like to see the accused
8 going to court, but he stated that going to court will
9 destroy Tracey."
10 Now, the reason Mr Kerr gave for concluding that
11 Tracey Clarke -- for concluding that the circumstances
12 were not right for making such an application, was that
13 her primary reason was the fact she loved
14 Allister Hanvey and she knew the others.
15 In our respectful submission, there is no indication
16 on this note that there is a primacy of reasons. The
17 note simply sets them out one after another, and simply
18 because the expression of concern about the possibility
19 of attack by Loyalist paramilitaries comes after the
20 expression of her love for Allister Hanvey doesn't
21 necessarily mean that the other reason is a primary
22 reason and the expression of fear is a secondary reason
23 THE CHAIRMAN: Can you help us about the test we have to
24 apply? It was a prosecutorial decision, wasn't it, not
25 to apply for an order that Tracey Clarke's evidence
51
1 might be read?
2 MR McGRORY: Yes.
3 THE CHAIRMAN: Consequently, what we have to consider is
4 whether the office of the Director informed itself of
5 the material upon which it needed to make a decision,
6 informed itself properly.
7 MR McGRORY: Yes.
8 THE CHAIRMAN: We have to look then, don't we, at the whole
9 body of evidence and not simply select parts of it, and
10 to say, "Now, in the light of that, the whole of the
11 evidence, had the Director got the necessary information
12 available to him to make a decision about whether or not
13 to make an application under Article 3?"
14 Is that the right approach for us?
15 MR McGRORY: Yes, sir, but the information as to the reason
16 why -- let's put it this way. The process by which the
17 DPP should obtain the information as to whether or not
18 the reason for her refusing to give evidence is through
19 fear is an investigative matter. I mean, it is
20 a function of the police, we submit, to obtain that
21 information from the witness, if the witness is
22 expressing a reluctance to give evidence, to explore the
23 reasons for that reluctance, and then to present the
24 reasons to the DPP.
25 What happened here --
52
1 THE CHAIRMAN: So your criticism here is, in the first
2 place, of the police and not enquiring further into
3 Tracey Clarke's reluctance or unwillingness to give
4 evidence?
5 MR McGRORY: Yes. That is something the police ought to
6 have ascertained from her before they brought her to the
7 consultation. It is our respectful submission it is not
8 really the function -- it ought not to be the function
9 of the prosecutorial staff to enquire as to why someone
10 might not be giving evidence. That is a police matter,
11 particularly in the circumstances where there might be
12 fear.
13 THE CHAIRMAN: I am not sure the police would have thought
14 it appropriate to interfere once a consultation has been
15 called for.
16 MR McGRORY: The difficulty I have with that is that in any
17 application in furtherance of Article 3 that a witness
18 statement should be admitted into evidence under that
19 rule as a consequence of fear, the evidence of the fear
20 comes from the police. The evidence of the fear never
21 comes from the witness, but the evidence of the fear
22 comes from a policeman who has spoken to the witness.
23 The fear --
24 THE CHAIRMAN: The evidence as to fear is ascertained by the
25 police and provided by the police, not comes from the
53
1 police as though it is their view.
2 MR McGRORY: No. It comes to the court from the policeman
3 who received the information from the witness. It comes
4 in a number of contexts. He receives the information
5 from the witness that he or she is in fear and then he
6 makes his own observations, as an investigator or
7 a policeman, as to whether or not that fear is genuine,
8 and he gives the evidence to the court of his view of
9 whether or not the witness is genuinely in fear. That
10 is admissible and acceptable evidence in the context of
11 the application.
12 Now, what has happened in this process of
13 consultation, I have to say, at a fairly early stage --
14 well, the charges are brought in May after Tracey Clarke
15 made her statement, and then the consultation takes
16 place in October, which is at about the time in the
17 process when the decision is taken by the DPP to
18 continue with a preliminary enquiry to return the
19 accused to trial in the Crown Court.
20 One has to wonder: why is senior Crown counsel
21 sitting down with a witness at this stage in the
22 process, because what happened here is --
23 THE CHAIRMAN: You did not question Mr Kerr about this, did
24 you?
25 MR McGRORY: I don't think I did, but --
54
1 THE CHAIRMAN: You should have done, you know.
2 MR EMMERSON: The position on the evidence I think is clear
3 that the reason the consultation was called for was
4 because Mr Irwin had informed Mr Davison on 10th October
5 that, following the events of Drumcree, Tracey Clarke
6 and Timothy Jameson and others may no longer be willing
7 to give evidence --
8 THE CHAIRMAN: Yes.
9 MR EMMERSON: -- because the attitude of the Protestant
10 community had hardened. So the consultation was
11 a direct result of that.
12 You will find that in the statement of Mr Kitson and
13 in the statement and records made by Mr Davison at the
14 time.
15 THE CHAIRMAN: Thank you.
16 MR UNDERWOOD: To go back even further, the murder file
17 itself made the recommendation that at least these two
18 witnesses, that is Mr Jameson and Tracey Clarke, should
19 be seen by counsel for the DPP.
20 THE CHAIRMAN: Yes.
21 MR McGRORY: I still think it is open to make the submission
22 on the evidence as it is available to us that there must
23 have been a statement taken from Tracey Clarke as to the
24 reasons for failing to give evidence on which
25 an application as to whether --
55
1 THE CHAIRMAN: You mean an attempt to take a statement?
2 MR McGRORY: Yes, an attempt. Absolutely. She may have
3 refused to make one, but that, in considering whether or
4 not there should be an application under Article 3,
5 there should have been a statement-taking exercise.
6 We do not know what she would have put in the
7 statement or whether she would have made a statement or
8 not.
9 MR EMMERSON: I am sorry to interrupt. I will restrain
10 myself as we go through and I will deal with these
11 matters in my own submissions, but the evidence of
12 Mr Davison is quite clear in the testimony he gave to
13 the Tribunal that the impression he formed, from having
14 seen her give the explanation that she gave, was that
15 she would not be willing to make a statement saying she
16 was in fear, because she knew that that would result in
17 an application to have her evidence admitted under
18 Article 3.
19 THE CHAIRMAN: I think Mr Adair asked some questions as well
20 along the same lines, and that the witnesses are alive
21 to the way to deal with the enquiry. Yes.
22 MR McGRORY: Yes. Indeed I think that perhaps would apply
23 as well to Timothy Jameson, in respect of whom there was
24 no expression of fear whatsoever.
25 THE CHAIRMAN: Yes.
56
1 MR McGRORY: We still have the evidence of Constable Cooke
2 in which he said:
3 "I remember ..."
4 It is at page [80204] of his statement to the
5 Inquiry at paragraph 5. In that, he said he vaguely
6 remembered the consultation. He was reminded by
7 Roger Davison's notes, but he believed she had a real
8 fear of retribution by Loyalist paramilitaries.
9 His impression was that that appears to be more the
10 primary reason, and that there should at least have been
11 if not -- first of all, an attempt to take a statement
12 from Tracey Clarke, a clear statement from
13 Tracey Clarke, as to whether or not she felt fear and,
14 if there wasn't that, then a statement from the police
15 as to the fact that she refused to make a statement and
16 that the basis of her refusal to make a statement was
17 fear.
18 Whether or not that would have succeeded in a court
19 of law in an application to invoke Article 3 is a matter
20 debate, but it is something we submit should have been
21 within the proofs available to the Director
22 THE CHAIRMAN: I think as much as you can say is this, is it
23 not? The Office of the Director saw all this material
24 so that all you can say it was short of was a statement
25 from Tracey Clarke herself about her fear. That's
57
1 really the point you have to make and no other?
2 MR McGRORY: It is.
3 THE CHAIRMAN: Right. Thank you.
4 MR McGRORY: It is. The next decision of the Director's
5 Office which comes under scrutiny is the decision to
6 drop the proceedings against Stacey Bridgett.
7 Now, the material that was before the Office of the
8 Director in making that decision included the following,
9 and these were noted by Mr Kerr, in his opinion, that
10 Jonathan Wright had seen Stacey Bridgett fighting; that
11 Constable Neill had seen him face-to-face with another
12 male and later with blood in his mouth. There is the
13 evidence of Constable Silcock that he had been told by
14 a female that one of the youths that had jumped on the
15 head of one of the injured men had been called out to as
16 "Stacey" by someone in the crowd, and he had responded
17 and he was bleeding from the nose.
18 Mr Kerr accepted that evidence was admissible,
19 presumably as a defendant -- or he said it was not
20 admissible as a defendant against the rule against
21 hearsay and would not have been treated as an exception
22 under the res gestae principle. He further noted that
23 Constable Cooke had seen Bridgett at the front of the
24 crowd trying to get at the injured and he was also
25 observed by Constable A as being in the crowd and
58
1 bleeding from the nose. Of course, central to this are
2 Bridgett's denials that he was in the crowd at all.
3 Then we have the emergence at a later stage of the
4 Forensic Science Laboratory of the penny-sized drop of
5 blood from Stacey Bridgett on Robert Hamill's trousers.
6 Now, there are two issues, we submit, here, that
7 perhaps should have been given further weight, that
8 might have resulted in further investigation of this
9 matter.
10 The first of those is the question of whether or not
11 the res gestae exception to hearsay should have been
12 applied. There is a contrary submission on this from
13 Mr Emmerson in respect of whether or not it was
14 sufficiently contemporaneous, and by that I mean the
15 comment from the woman who said to Silcock that, "That
16 guy was jumping on Robert Hamill's head". This is in
17 the context of the crowd being pushed back
18 THE CHAIRMAN: The question is not simply being
19 simultaneous, it is whether it is, if you like,
20 a knee-jerk response to what the witness has observed.
21 That's putting in layman's language what Lord Ackner
22 says in his speech in what is the leading case on
23 res gestae principle.
24 MR McGRORY: Yes, indeed. What Lord Ackner is saying in
25 this case is that the question of whether or not the
59
1 exception applies is if the circumstances of the remark
2 being made are such that it would rule out any
3 possibility of fabrication, that there is a sufficient
4 degree within the context of the incident of
5 spontaneity and contemporaneity to rule out the
6 possibility of it being made up.
7 Now, Mr Kerr took one view of that, which
8 Mr Emmerson supports, but, in our respectful submission,
9 we have to question whether or not there was an equally
10 valid argument available to the prosecution that this
11 was -- the circumstances of this fitted within the
12 parameters set out in that particular case, the Andrews
13 case.
14 You also have to look at that time in the context of
15 the other evidence available to the prosecution. The
16 other evidence available -- in terms of the
17 prosecution's duty to determine whether or not there was
18 a reasonable prospect of conviction.
19 Even, say, we are just talking about the offence of
20 affray, what we submit is that the evidence of
21 Constable Silcock as to what was said to him by the
22 woman was relevant evidence to the question of whether
23 or not Stacey Bridgett was engaged in the affray. If
24 the prosecution had succeeded in getting that evidence
25 in, that would not have been necessarily -- well, it was
60
1 very powerful, but not necessarily sufficient on its own
2 to bring about the conviction, but when you add it to
3 his denial that he was involved down around in the melee
4 in the first place, and the other evidence that I have
5 outlined, that he was there in the thick of it, and the
6 forensic evidence, which we will come to in a moment,
7 which is where the relevance to the investigation is
8 paramount, we submit, then there might have been
9 a reasonable prospect of conviction on affray
10 THE CHAIRMAN: But, you see, the other evidence adds nothing
11 to the res gestae point. That is a quite separate
12 point. It is neither made admissible nor inadmissible
13 by other evidence about bloodstains and so on.
14 MR McGRORY: Absolutely, sir, but what I am saying is they
15 are two separate --
16 THE CHAIRMAN: If you succeed on your res gestae point, then
17 we should look at the other matters as well.
18 MR McGRORY: Oh, yes.
19 MR EMMERSON: Can I interrupt on one -- it is not a question
20 of fact. Mr McGrory did indicate that when he was going
21 to outline the various areas of criticism, he would
22 explain how it was said they fell within the terms of
23 reference in shaping the investigation.
24 What he has sought to do is outline a difference of
25 view as to the correct interpretation of the law. That
61
1 may be a very interesting debate, but, as we
2 respectfully submit, it is not a debate which falls
3 within the terms of reference.
4 THE CHAIRMAN: It would depend, wouldn't it, on our view, if
5 we came to the conclusion that it was admissible within
6 the res gestae, and if we also took the view that the
7 contrary view really wasn't tenable?
8 MR EMMERSON: With respect, no, because it is not a decision
9 which shaped the investigation, first of all. It is
10 a decision as to the application of the law to the
11 evidence as it stood.
12 THE CHAIRMAN: I am not sure about that, you see. It may
13 have shaped an investigation as to what charge to
14 prefer. Anyway, we have your point.
15 MR UNDERWOOD: It may be, if I can throw in at this stage,
16 the possibility that is adverted to in the printed
17 closings, which is that what the DPP ought to have done
18 at this stage was go back to Mr Silcock, or, rather, to
19 direct that the police went back to Mr Silcock and asked
20 him with more precision about the circumstances in which
21 this comment was made in the same way it directed that
22 PC Neill would be re-interviewed about whether he saw
23 Mr Hobson kick or kick at.
24 MR McGRORY: Yes. I may be guilty of putting the cart
25 before the horse in my argument, and I apologise for
62
1 that, but I can add another one to Mr Underwood's, which
2 is, in terms of the investigation of the relevance of
3 the blood spot, it was incomplete, in that Mr Marshall,
4 who was spoken to by a member of the DPP, indicated,
5 "I am not a blood pattern analyst. As a biologist and
6 someone who is experienced in these matters, I can offer
7 an opinion that that blood almost certainly dropped
8 vertically, but you would really need to seek the
9 opinion of a specialist who is a specialist analysis in
10 blood patterns."
11 Now, that's an investigative matter that wasn't
12 followed through and that could have been.
13 Now, for all of those reasons, we say it is
14 relevant. It fits within the terms of reference. The
15 prosecutor has to take two steps. He has to decide, "In
16 the totality of the evidence that might be available to
17 me, is there any chance of a reasonable prospect of
18 conviction, and, secondly, is it in the public
19 interest?" which doesn't apply here. It is on the basis
20 there is a reasonable prospect of conviction.
21 In lining up those pieces of evidence he has the
22 pieces to which we have referred from those various
23 witnesses as to the conduct of Stacey Bridgett. He then
24 has to consider, "If I have a forensic evidence which
25 contradicts what Bridgett has told the police and which
63
1 can be put to him in cross-examination, then I have to
2 add that to the other elements, evidential elements,
3 that might bring me to the view that I have a reasonable
4 prospect of conviction", but one of those elements, in
5 our respectful submission, was not followed through
6 THE CHAIRMAN: One of your points was that they should have
7 taken a second opinion. That's the point, isn't it?
8 MR McGRORY: Yes.
9 THE CHAIRMAN: Why do you think they should have taken
10 a second opinion?
11 MR McGRORY: Well, the evidence of Lawrence Marshall was not
12 conclusive as to the meaning of the blood pattern on
13 Robert Hamill's trouser leg.
14 THE CHAIRMAN: I think the point you have to deal with is
15 this, isn't it? If Mr Marshall considered this was
16 outwith his field, then the layman, who doesn't have to
17 turn himself into an expert, would have been entitled to
18 think that they couldn't go beyond Marshall's evidence
19 unless he said, "I think you should get a second
20 opinion". That's the point you have to deal with,
21 I think.
22 MR McGRORY: Sorry, sir, can I ask you to repeat that?
23 THE CHAIRMAN: Yes. Marshall has told us, "I can tell you
24 so much. I have experience of blood patterns but no
25 technical training in it", but if he says, "I can only
64
1 go this far" to the police, they are entitled to take --
2 this is the argument against you that I am inviting you
3 to deal with -- the view, "That's it", unless the expert
4 whom they have consulted says, "This is outwith my
5 field. I recommend you take a second opinion".
6 That is what I have I think to deal with.
7 MR McGRORY: Yes. I think the evidence is that
8 Lawrence Marshall said, "I am not a blood pattern
9 analyst, but I will venture an opinion", but it is well
10 within the investigative ability and knowledge of the
11 police to say, "Well, we will go and get better evidence
12 of what Lawrence Marshall has already said to us as his
13 preliminary opinion", and that within the DPP, in coming
14 to the decision as to whether or not they had
15 sufficient -- assuming -- they have to decide: is it
16 worthwhile having a stab at a res gestae application
17 here? It is not worthwhile having a stab at a
18 res gestae application if, even if it succeeded, there
19 is not sufficient evidence to ground a prosecution for
20 affray. So they have to carefully examine all of the
21 other evidence.
22 It is our respectful submission that, in this
23 discrete respect, in terms of the value of the forensic
24 evidence, it was not fully investigated and a report
25 from a blood pattern analyst who was experienced in the
65
1 field, saying that, "There is only one conceivable basis
2 upon which that blood could have gotten on to
3 Robert Hamill's trousers and that is if it vertically
4 dropped", implying Stacey Bridgett was standing over him
5 when the blood left his nose, then that is very powerful
6 evidence that would be put before a court, but that the
7 investigation of that hadn't been bottomed out, and it
8 was within the DPP's remit to direct that further
9 investigative steps be taken to bottom out that
10 particular point, and that is well within the terms of
11 reference, even on Mr Emmerson's interpretation of them.
12 The res gestae point is a different point, but, in
13 our respectful submission there is a disagreement as to
14 whether or not the res gestae application might have
15 succeeded. But in our respectful submission, a doubt
16 that it might succeed is not necessarily a reason for
17 not advancing the argument, if it is a reasonable
18 argument, and by all accounts it was a reasonable
19 argument, but the reason put forward by the Director of
20 Public Prosecutions for not advancing it any further was
21 that the remainder of the evidence, even if you got the
22 application through, wasn't sufficient for a reasonable
23 prospect of a conviction, and in that discrete respect
24 we submit that due diligence was not done
25 THE CHAIRMAN: I don't think Mr Kerr's evidence was to the
66
1 effect that, "There is not really much point in thinking
2 about res gestae, because the blood spot does not tell
3 one enough". His view, his opinion about the res gestae
4 point was entirely self-contained, whether rightly or
5 wrongly, by applying the principles as set out by
6 Lord Ackner in the case of Andrews.
7 MR McGRORY: Yes. I accept that. I accept that it may be
8 outwith the terms of reference for the Inquiry to say
9 whether or not it agrees with Mr Kerr in his view of the
10 res gestae point, but it is within the Inquiry's terms
11 of reference to say that, in considering the totality of
12 the evidence against Stacey Bridgett in determining
13 whether or not there should be a prosecution for at
14 least affray in the absence of Tracey Clarke, that there
15 should have been a direction to the police to take
16 further steps to acquire more evidence on the value of
17 the blood spot found on Robert Hamill's trousers.
18 THE CHAIRMAN: Very well. Thank you.
19 MR McGRORY: In terms of the Wayne Lunt issue and whether or
20 not there was not due diligence in respect of following
21 that through, despite the intervention of Prunty in
22 respect of his identification of Forbes, I think I have
23 addressed that yesterday and I don't intend to repeat
24 those submissions.
25 THE CHAIRMAN: You have.
67
1 MR McGRORY: I accept entirely Mr Emmerson's correction
2 that, in fact, there was a statement taken by
3 Inspector Irwin in that regard.
4 THE CHAIRMAN: Yes.
5 MR McGRORY: We still do hold with our submission that --
6 THE CHAIRMAN: Well, as you say, you made your submission
7 yesterday.
8 MR McGRORY: Yes, indeed. The final decision of the
9 Director, which comes under scrutiny, we submit, is that
10 of the dropping of the prosecution against Reserve
11 Constable Atkinson, Eleanor Atkinson and Kenneth Hanvey
12 about the conspiracy to pervert the course of justice.
13 We submit that there was a fundamental flaw in the
14 interpretation of the evidence going to the question of
15 Andrea McKee's credibility that led the Director himself
16 to have been perhaps misadvised in respect of whether or
17 not the prosecution should be continued and the Attorney
18 General in respect of whether or not he should exercise
19 his power to intervene.
20 The basis upon which we make that submission is that
21 there were a series of events concerning the leading up
22 to and adjournment on 22nd December of the committal
23 proceedings. The original committal proceedings were to
24 take place in October. They were adjourned until
25 22nd December at the request of the defence.
68
1 We have heard all of the evidence that Andrea McKee
2 phoned on the Sunday, spoke to Constable Murphy. She
3 told her she was not coming because her child, in her
4 view, had mumps, orchitis, swelling of the testicles and
5 something else -- ear infection. The gist of that was
6 conveyed to the court on the morning of Monday,
7 22nd December. The court granted the adjournment, was
8 unhappy about the granting of the adjournment and said
9 it wanted documentary evidence of the reasons why the
10 adjournment had been sought.
11 Now, Mr Morrison has expressed the view that the
12 adjournment was conditional upon the production of
13 a satisfactory explanation for the granting of the
14 adjournment, but we respectfully submit that that is
15 a misdescription of what happened. The adjournment had
16 been granted. Whether or not any evidence had been
17 forthcoming about the reasons for the application or if
18 the evidence that was forthcoming didn't meet what was
19 said to the court as to the reason for the application
20 is neither here nor there.
21 If the magistrate was unhappy with the explanation
22 he was given, the only course open to him was perhaps to
23 make some complaint to the relevant authorities that he
24 had been misled in granting the adjournment, but it
25 didn't affect the conduct of the committal proceedings.
69
1 I mean, that was an utterly irrelevant consideration.
2 What happened was that the DPP and the police go
3 over to England on 9th January and they ask questions of
4 Andrea McKee as to why she didn't turn up.
5 THE CHAIRMAN: It's Wrexham. They like you to say Wales.
6 MR McGRORY: Wrexham. The information is given by
7 Andrea McKee then, the extra information, she had gone
8 to Pendine. There are all sorts of investigations at
9 Pendine and it cannot be confirmed she went there. Then
10 in her further explanations she mentions she may be
11 contradicting herself in terms of who she saw, who went
12 in to see the doctor and the description of the doctor
13 and so forth.
14 Now, it is quite clear from the evidence of all of
15 those involved in that -- that's Mr Morrison of the DPP,
16 and Christine Smith who attended in Wrexham -- that they
17 simply did not believe that she went to Pendine. They
18 then took that back to a series of meetings which were
19 attended by Gerry Simpson, QC, and they had discussions
20 about whether or not this affected her credibility.
21 Now, it is our respectful submission that that was
22 a totally wrong approach. It was utterly irrelevant,
23 utterly irrelevant to the question of whether or not the
24 prosecution would succeed. Even if you take it -- they
25 shouldn't have been worried about it in the first place,
70
1 and in any event, we say it is not conclusive that she
2 lied to them, though she might have, but they had to
3 consider she might have lied, and even taking it at its
4 height, they were right in thinking she had lied to them
5 about Pendine, that was still utterly irrelevant to the
6 question of the prosecution. It was irrelevant to the
7 adjournment and it was irrelevant to whether or not the
8 committal would proceed. It might have been relevant as
9 to her credibility in the trial, but it was certainly
10 irrelevant to whether or not she would have been
11 returned for trial.
12 The height of the obligation to the defence was to
13 disclose to them the material which led them to believe
14 that she had lied, on the basis that that might assist
15 the prosecution in that it might allow them to
16 cross-examine her as to her credibility.
17 Now, in our respectful submission, any
18 cross-examination as to her credibility would have been
19 irrelevant for the purpose of the committal proceedings,
20 which was to establish only whether or not there was
21 a prima facie case, but even if it was, that was the
22 only relevance of the information about Pendine. It did
23 not affect the prosecution in any other way, except as
24 to the question of whether or not there might have been
25 some damage to her credibility.
71
1 So that was a fundamental mistake on the part of
2 those officers within the Director of Public
3 Prosecutions and counsel who were engaged in that
4 exercise that they made.
5 The problem with it is that that information was
6 given to the Attorney General as relevant to the success
7 of the committal. So, therefore, we submit, and I think
8 Mr McGinty has said, had he realised that there was
9 actually no danger to the committal, then he would have
10 factored that information into the briefing that he gave
11 the Attorney General.
12 The second issue that we submit is of relevance here
13 is the question of whether or not there needed to be any
14 corroboration of her testimony, first of all regardless
15 of the Pendine complication.
16 Now the requirement for the corroboration of the
17 evidence of an accomplice was dispensed with by
18 legislation in 1996. The question of whether or not the
19 jury needed to be directed on the need for corroboration
20 was entirely up to the trial judge. That was entirely
21 at the discretion of the trial judge.
22 So even if the Pendine material had been handed over
23 to the defence and the defence had cross-examined her
24 about it at the trial, it is questionable as to whether
25 or not the trial judge would have accepted a submission
72
1 from the defence that he needed to give a Makanjuola
2 warning in terms of her credibility, but it is a second
3 issue as to whether or not he needed to give a warning
4 that corroboration was required. In fact, there was
5 corroboration in the form of the plea of her husband.
6 We submit that her own plea was supportive of the
7 contention that she would be telling the truth.
8 THE CHAIRMAN: Her husband's plea of guilty was relevant to
9 establish the conspiracy, wasn't it?
10 MR McGRORY: It was. It is also corroboration, because he
11 is independent. She is responsible for her own plea.
12 THE CHAIRMAN: I am not sure it goes beyond establishing the
13 conspiracy, but then, if you establish the conspiracy,
14 it raises the important question: who is party to it?
15 The jury might not find it altogether a difficult step
16 to take to say, "Who benefited?" Therefore,
17 "Mr Atkinson was a party to the conspiracy.
18 Andrea McKee is telling us the truth about that".
19 I think that's perhaps the approach a prosecutor
20 might have put before the jury.
21 MR McGRORY: Indeed.
22 THE CHAIRMAN: Yes. Very well.
23 MR McGRORY: Indeed. So we submit that the due diligence of
24 the office of the Director of Public Prosecution in
25 taking these decisions is relevant, because, had the
73
1 prosecution against Atkinson proceeded and gotten
2 through committal stage and Atkinson was faced with the
3 possibility of a conviction, he might well have decided
4 to change his tack. We don't know. It is speculation,
5 but it is very much a possibility.
6 Don't forget how so much store has been put on the
7 possibility of Andrea McKee changing her direction in
8 respect of the false alibi in the first place in the
9 face of the possibility of her going to prison. So
10 these things are not beyond the grounds of possibility
11 or indeed probability.
12 Atkinson, as a policeman, would have been facing
13 a very long time in jail. He may well have decided,
14 "Okay. I will come clean as to what I saw Hanvey do".
15 So in that respect it is relevant to the investigation.
16 We make a second submission in respect of this
17 discrete decision that was taken by the Office of the
18 DPP, and that is that it is open to this Panel to
19 consider it was, what we say, Wednesbury unreasonable,
20 Wednesbury irrational, on the basis that -- I will quote
21 from Lord Green in the Wednesbury decision, which
22 defines unreasonableness
23 THE CHAIRMAN: No, we are not concerned with the decision of
24 the Office of the Director not to prosecute, because
25 they wouldn't call -- well, not to prosecute. We are
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1 concerned with whether he put himself into a proper
2 position to make that decision, and then, if we say,
3 "No, he didn't, so there was a breach of due diligence
4 there", how did that shape any further investigation?
5 MR McGRORY: Yes, sir. You have very eloquently expressed
6 my submission --
7 THE CHAIRMAN: Thank you.
8 MR McGRORY: -- in the sense that I have set out how the
9 investigation was shaped in the sense that Atkinson may
10 have done something very different, had the prosecution
11 of him in respect of the conspiracy reached the stage it
12 should have reached, but the second part of your
13 formula, sir, is that the important question is: was
14 there a sound basis, evidential basis and legal basis,
15 for the Director to take the decision not to proceed any
16 further?
17 THE CHAIRMAN: You have made your submissions about that.
18 MR McGRORY: Our submission that is there was not. What
19 Lord Green says about it is:
20 "If the nature or subject matter and the general
21 interpretation of the Act make it clear that certain
22 matters would not be germane to the matter in question,
23 they must be disregarded."
24 It is our submission that far too much account was
25 taken of matters which were simply not germane to the
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1 question.
2 The second aspect referred to by Lord Green is that
3 the decision-maker must direct themselves properly in
4 law. It is our submission there was a misdirection in
5 law by the Office of the Director of Public Prosecutions
6 on the issue -- in respect of the corroborative value of
7 the pleas of guilty, in that there was no proper account
8 taken of them. They should have weighed very, very
9 heavily.
10 In those respects, we submit that there is
11 an arguable case to be made that the decision taken by
12 the Director and the decision taken to withdraw the
13 prosecution, and, indeed, the decision taken by the then
14 Attorney General, Peter Goldsmith, not to exercise its
15 discretion was taken on a fundamentally unsound basis,
16 in that the information which should have been before
17 those people was not before them.
18 Now, when I made my opening remarks to this Inquiry
19 on 13th January of this year, I said on behalf of the
20 family of Robert Hamill that they were of the
21 unshakeable belief that Robert was killed because he was
22 a Catholic, and I submit that the totality of the
23 evidence about the identity of those who were engaged in
24 the murder of Robert Hamill did so because he was
25 a Catholic. They were all from the Loyalist community.
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1 He was obviously from the Catholic community from the
2 direction he was coming from, and so forth.
3 The second question that I posed was: the importance
4 for this Inquiry is whether or not, if the investigation
5 was compromised, it was compromised because he was
6 a Catholic. That's a relevant consideration within the
7 terms of reference.
8 At the outset we said we had questions about that.
9 Now, in my respectful submission, it must be concluded
10 that Robert Hamill's religion was relevant to the manner
11 in which the investigation was compromised. We say the
12 investigation was compromised from its very inception by
13 the conduct of Reserve Constable Atkinson. If he was
14 corrupt to the extent that he was tipping off
15 Allister Hanvey about what he did to Robert Hamill, then
16 there is an inescapable inference that he certainly at
17 least saw what Robert Hamill (sic) had done in order to
18 tip him off, for there to be a need for him to tip him
19 off.
20 It is our submission that Atkinson's motivation for
21 engaging in that conduct was sectarian.
22 THE CHAIRMAN: Was?
23 MR McGRORY: Was sectarian. We put this to him very
24 clearly. He has accepted he was a member of the
25 Orange Order. He became a member of the Orange Order
77
1 after, I think, this incident. If he was motivated to
2 tip off Allister Hanvey on any basis because he felt he
3 was under pressure to redeem himself within his own
4 circle of Loyalists, because he had a bad reputation for
5 doing to them what he should not have been doing as one
6 of them in terms of policing the parades, then that was
7 a sectarian motive for engaging in the conduct in which
8 he engaged.
9 If, as we submit, the investigation into whether or
10 not he was corrupt was compromised because of a fear
11 about how it might adversely affect the reputation of
12 the police force at a crucial time in its development,
13 then that was because he was a Catholic, and that is
14 relevant to the terms of reference, and that is
15 something you must consider.
16 I will leave the Inquiry with the words of
17 Detective Constable McCrumlish, who gave evidence on
18 Day 50, 15th May 2009, when he said:
19 "I recall that the general feeling of the whole
20 investigation team was that Robert Hamill had been the
21 author of his own misfortune."
22 He said it again a few moments later when he said:
23 "The general feeling was, as a result of this, it
24 was a general feeling that Robert Hamill had brought it
25 on himself."
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1 That's very powerful evidence from a police officer,
2 that there was a feeling within the police force that if
3 Robert Hamill -- if what was done to Robert Hamill,
4 well, he brought it upon himself. He got what he
5 deserved
6 THE CHAIRMAN: I don't think we should ignore, should we,
7 what McCrumlish said with some force, "It did not make
8 any difference to our efforts in the investigation"?
9 We have to take account of that, don't we?
10 MR McGRORY: Of course, but you have to ask yourself: did it
11 or did it not?
12 THE CHAIRMAN: Very well.
13 MR McGRORY: Those are my submissions. I have been reminded
14 by my learned junior Mr McKenna that there was one
15 discrete matter about the relationship between the
16 medical evidence and the nature of the attack that I was
17 to deal with arising out of submissions.
18 THE CHAIRMAN: Yes?
19 MR McGRORY: I think I can deal with it fairly succinctly,
20 if I may.
21 THE CHAIRMAN: Yes.
22 MR McGRORY: With the best will in the world, sir, I ...
23 THE CHAIRMAN: The medical evidence is this, isn't it? It
24 would not have taken very long at all to inflict the
25 fatal injuries.
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1 MR McGRORY: It is.
2 THE CHAIRMAN: But the medical evidence does not say it must
3 have been over in a few seconds or a very short space of
4 time in order for the injuries to have that effect.
5 So, in other words, although the damage could have
6 been done very quickly, that does not necessarily mean
7 that attempts to attack and blows struck at Hamill
8 continued thereafter. Is that a fair summary?
9 MR McGRORY: That is my submission in a nutshell, sir. You
10 have helped me out very considerably there as I still
11 rummage through my papers. I was actually going to take
12 you to those aspects of Professor Crane's evidence which
13 said just what you have said, sir.
14 The one other point I was going to take you to was
15 I did ask him, if those who were kicking at
16 Robert Hamill were wearing training shoes, that it would
17 make any difference to the manifestation of the medical
18 evidence insofar as it showed whether or not he was
19 being kicked, and he said it would. You will find that
20 reference. Almost every one of those who was arrested
21 for the murder of Robert Hamill on the evidence of
22 Tracey Clarke and Timothy Jameson informed the police
23 that they were wearing trainers.
24 Those are my submissions
25 THE CHAIRMAN: There is one matter that you may not find it
80
1 necessary to go further upon, but let's assume that your
2 attack on the decision over Andrea McKee fails. Because
3 whether or not Atkinson gave a tip-off to Hanvey falls
4 within our terms of reference, we, as a Panel, have to
5 make up our own minds about Andrea McKee, and we, of
6 course, have advantages that no-one of the Office of the
7 Director had: we have seen Andrea McKee and we have seen
8 those who were closely involved in advising the
9 Director, Mr Simpson, and, to a lesser extent,
10 Miss Smith. So we have to form our own views about her
11 credibility and ask ourselves what effect those views
12 have upon the evidence against Mr Atkinson.
13 MR McGRORY: Yes, I agree wholeheartedly with that.
14 THE CHAIRMAN: Very well. 2 o'clock.
15 MR McGRORY: Sorry, sir.
16 THE CHAIRMAN: You have a second wind.
17 MR McGRORY: No, I don't want to have to stand up again
18 after lunch. There was one other medical point. That
19 was the question of bruising and why there might not
20 have been more extensive bruising on Robert Hamill's
21 body. That is relevant to the fact that those whom we
22 allege kicked him were wearing trainers and also because
23 of the fact his death did not occur until some time
24 after the incident.
25 Thank you.
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1 THE CHAIRMAN: Thank you.
2 (1.00 pm)
3 (The luncheon adjournment)
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