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Hearing: 28th April 2009, day 40

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6 - - - - - - - - - -

9 PUBLIC INQUIRY INTO THE DEATH OF

10 ROBERT HAMILL

12 - - - - - - - - - -

15 Held at:

16 Interpoint

17 20-24 York Street

18 Belfast

20 on Tuesday, 28th April 2009

21 commencing at 11.30 am

23 Day 40

1 Tuesday, 28 April 2009

2 (11.30 am)

3 (In Camera Session)

4 (2.55 pm)

5 THE CHAIRMAN: Yes, Mr Underwood?

6 MR UNDERWOOD: I call Mr O'Boyle, please.

7 MR JOSEPH CHARLES O'BOYLE (affirmed)

8 Examination by Mr UNDERWOOD

9 MR UNDERWOOD: Good afternoon, Mr O'Boyle. The noise is

10 coming from here. My name is Underwood and I am Counsel

11 to the Inquiry. It is my task to ask most of the

12 questions. It may well be that, when I have finished,

13 some other of the advocates will have some questions for

14 you.

15 Can I ask you, first of all, your full names?

16 A. Joseph Charles O'Boyle.

17 Q. If I ask you to look on the screen, please, at [81724],

18 I would like you to just look while we flick through the

19 five pages of this document. Is that your witness

20 statement?

21 A. Yes, that is.

22 Q. Are the contents of it true?

23 A. Yes.

24 Q. I want to ask some supplemental questions, if I may.

25 The first is a purely technical question about

1 decibels and the effect of noise generally.

2 If you have got a background noise, if that's

3 a useful phrase, of, say, 50 decibels and the question

4 arises, can you hear something else as well, does that

5 something else have to be greater than 50 decibels for

6 you to hear it or does it depend on the frequency or

7 what?

8 A. I actually don't know the answer to that question.

9 Q. Okay. What I want to try to understand is the value to

10 the police of what they asked you to do in measuring the

11 Land Rover noise.

12 You discovered that, with the engine running, there

13 was, give or take, about 63, 64 decibels, I think.

14 A. Right.

15 Q. What I want to get at -- and if you don't know the

16 answer, you don't know the answer, and we will ask the

17 officer who directed you to make the test -- is what the

18 police thought would be the value of knowing that noise,

19 because what the police were interested in or should

20 have been interested in is whether people in the

21 Land Rover could have heard noise from outside.

22 Now, you measured the noise the engine made and the

23 fan, and came up, as I say, with 63, 64 decibels. If

24 you can help us, could you answer this then: given

25 64 decibels coming from the engine and the fan and so

1 on, would it have needed voices to be more than

2 64 decibels coming from the outside to be heard?

3 A. Again, I don't know exactly the answer to that. I think

4 the point you are trying to get me to say is, yes, the

5 level there at 64 decibels would tend to mask out noise

6 at a lower level.

7 Q. Right. Is this the --

8 A. I suppose conversely then, in order to distinctly hear

9 something outside it would have to be at a level above

10 64 decibels.

11 Q. So it doesn't matter say that the 64 decibels from the

12 engine was at a low frequency and the other noise may

13 have been at a high frequency?

14 A. The levels that I measured, I applied an A-weighting

15 correction to them, so -- but you are right. That is

16 applied across a frequency range by different amounts

17 and, therefore, something distinctive at another

18 frequency, you may be able to perceive it. For example,

19 a tone or something like that.

20 Q. So as I say, if you have got a low hum at 64 decibels,

21 it may be that a shriek at 64 decibels could still be

22 heard because it is coming in at a different wavelength.

23 Is that correct?

24 A. That may be the case. I'm sorry, I don't feel qualified

25 to --

1 Q. Mr O'Boyle it is not a test of your abilities. What the

2 Inquiry is interested in, amongst other things, is the

3 degree of diligence shown by the police in investigating

4 the murder.

5 If what they did was bring you in to ask you to do

6 a report which didn't take it any further, that may be

7 of itself knowledge that's valuable to the Panel.

8 That's why I'm asking you what value the results

9 could have, you see. It really isn't critical of you.

10 A. Right.

11 THE CHAIRMAN: We have all had experience, no doubt, of

12 sitting in a room where different people are talking.

13 Some speak louder than others. But if our hearing is

14 reasonably good, we may be able to hear both the softer

15 and the louder voices, even though they may be talking

16 at the same time.

17 A. Yes.

18 THE CHAIRMAN: Is that right?

19 A. The reason I may appear reluctant to answer that is

20 because what -- the question is around the perception or

21 how you perceive the noise, whereas my expertise is

22 really in measuring the level which is, like, a physical

23 quantity.

24 The perception of noise is a very different field.

25 You can hear somebody -- like, my wife can be talking

1 for ages and I can totally ignore her. So I can hear

2 it, but the perception of it -- that's why I'm reluctant

3 to -- there is a distinction between me assessing the

4 noise as a noise level and being willing to say what

5 someone could hear.

6 MR UNDERWOOD: Can I move on to a different aspect, which is

7 the ability of noise to penetrate into the Land Rover?

8 Again, the purpose of this question is to determine

9 how far your tests could have helped the police.

10 You did a series of tests with the engine off,

11 a series of tests with the engine on at various lengths.

12 With the engine off, from time to time, you were able to

13 measure noise or, rather, you were able to discern noise

14 from outside the Land Rover, so girls talking, traffic,

15 et cetera.

16 It happens, and I think, as far as I can see, to be

17 pure coincidence that, with the engine on, you were not

18 able to perceive any such things.

19 The first question must be, I suppose, is that

20 coincidence or could there -- do you know whether there

21 were events happening outside which you couldn't hear?

22 A. I don't know.

23 Q. So nobody was stationed in the Land Rover looking out to

24 see if things were going on which you couldn't hear?

25 A. No, no one was doing that.

1 Q. So is anything that you did relevant to the question of

2 how much noise could get into the Land Rover from

3 outside?

4 A. Essentially, what I was set out to do was to measure

5 what the sound pressure level was inside the vehicle

6 with the engine on and with the fan on and with it off.

7 And possibly, with hindsight -- I wasn't instructed to

8 see -- to create a noise outside and to see if that was

9 discernible inside.

10 Q. That was my next question.

11 So nobody asked you to assess noise coming from

12 outside or to create any noise coming from outside to be

13 assessed?

14 A. No.

15 MR UNDERWOOD: Yes. Those are my only questions. It may be

16 you will be asked some more.

17 THE CHAIRMAN: Yes, Mr Adair?

18 Examination by MR ADAIR

19 MR ADAIR: Mr O'Boyle, I want to go back to page [81724],

20 please. This is the statement that you made that you

21 have told us is true.

22 Now, we know from that statement that obviously you

23 were employed at that stage by -- who were you employed

24 by at that stage? Was it the Industrial Research and

25 Technology Unit?

1 A. Yes, it was.

2 Q. That was a Government body?

3 A. Yes.

4 Q. We see from paragraph 3 that that body specialised in

5 offering -- thank you for highlighting -- a service to

6 industry and presumably also in this case to the RUC?

7 A. Yes.

8 Q. Now, I see in paragraph 4 that initially your first

9 dealing with this is being approached by your Principal

10 Officer --

11 A. Yes.

12 Q. -- who unfortunately, as we see from the report, is now

13 deceased.

14 A. Yes.

15 Q. Now, can you help us? Had he then been approached and

16 told what was required by the RUC? Is that the

17 impression you had?

18 A. Yes, that's the impression I had --

19 Q. And -- sorry, go on?

20 A. I think it might be in the next paragraph to that. No,

21 it's in that paragraph.

22 Q. I was coming to it in a second.

23 A. My perception was that he had been approached --

24 Q. And the RUC had asked him essentially whether or not

25 certain kind of tests could be carried out?

1 A. Yes.

2 Q. Yes. We will see that what the RUC wanted was -- in

3 line 3 of paragraph 4 -- to know how it would be

4 possible to determine whether someone could hear a sound

5 inside of a vehicle. Is that right?

6 A. That's what he asked me.

7 Q. So the RUC wanted to know what the people inside the

8 vehicle could hear of noise outside the vehicle. That's

9 clear from that.

10 A. Yes, that's what he asked me.

11 Q. We can see -- I will not read it out, but we can see

12 your response was that that was virtually an impossible

13 question because it was subject to so many variables?

14 A. If you read the next few lines in that statement, it was

15 along the lines that -- my answer to him would be: you

16 can't determine with a sound level meter what someone

17 heard. You can -- that depends on their -- as I said,

18 their hearing acuity. It depends on the other noises

19 that were in the vehicle. It depends on what -- the

20 next -- could you just show up the next few lines of

21 that?

22 Q. Yes, that is the next page then, please, [81725]. What

23 was happening outside --

24 A. It depends what's happening outside and whether or not

25 the vehicle had openings or windows or doors open. So

1 the work that I done then was, I couldn't do anything

2 about the hearing acuity, I couldn't do anything about

3 the weather other than check what the weather was like

4 when I done tests, so I opened and closed doors and

5 measured the sound from the engine inside. So really,

6 that explains why I carried out the tests that I carried

7 out.

8 But if I had had an instruction from the RUC, that

9 would have been included in my report. So my report

10 sort of gives you on the -- on the introduction what

11 I was asked to do.

12 Q. But your Principal Officer told you what the RUC wanted

13 you to do?

14 A. No, my Principal Officer asked me how

15 would I determine --

16 Q. Sorry, I interrupted. I beg your pardon. Carry on.

17 A. He asked me how you would determine whether someone

18 could hear something or not.

19 Q. Outside the vehicle?

20 A. Outside the vehicle.

21 Q. That's what the RUC had obviously made the enquiry about

22 that dealt with this?

23 A. I presume so.

24 MR ADAIR: Thank you.

25 Examination by MR McGRORY

1 MR McGRORY: You, of course, had no idea, when you were

2 carrying out your tests, what level of noise you were

3 testing for in terms of what the issue was, whether --

4 you had no instructions?

5 A. No. In hindsight, when I look back at this -- and,

6 unfortunately, I do not have the notes I made at the

7 time or any of the documentation associated with this

8 because the files were destroyed after six years. But

9 if I had have had a set of instructions, then it would

10 have been in the report -- sorry, what was your question

11 again? I beg your pardon.

12 Q. You say in paragraph 7 of your statement at page 2 that

13 you had no instructions from Mr Irwin about the tests?

14 A. That's right.

15 Q. So I can take it from that you weren't told to consider

16 whether or not someone in the Land Rover could hear

17 shouting from any distance?

18 A. No, that wasn't -- what I was there to do was to measure

19 what the sound pressure level was with the engine on,

20 the doors open, the doors closed, and with the fan on

21 and the fan off. That was pretty --

22 Q. But that wasn't related to any proposition in terms of

23 what it is that somebody might have been expected to

24 hear?

25 A. No, that was -- may have been what they wanted to find

1 out. But I can't tell you that with a sound level

2 meter. I can only tell you what the sound pressure is.

3 I can't tell you what someone can hear. That's

4 different.

5 Q. But, of course, had you some instructions in the context

6 that there was an issue about whether or not people in

7 the Land Rover might or might not have heard something,

8 you might have been able to do specific tests?

9 A. With hindsight, yes. If someone -- and I discussed this

10 when I was interviewed. You could have sat down and

11 devised a series of tests where you created a noise

12 outside and measured what the level due to that noise

13 was inside the vehicle with the doors closed and with

14 the doors open.

15 THE CHAIRMAN: A noise outside you could measure, and then

16 you measure what is heard of it inside?

17 A. Yes, you could set up a sound source, what is known as

18 a sound source, and you can calibrate that sound source

19 and set it up to a certain level and do measurements

20 inside, but I wasn't asked to do that.

21 MR McGRORY: Thank you.

22 THE CHAIRMAN: Yes, Mr Mallon.

23 Examination by MR MALLON

24 MR MALLON: If I can introduce myself, I appear on behalf of

25 one of the police officers in the Land Rover.

1 Can you explain what you meant by "acuity", someone

2 able to hear an outside noise in a noisy area, and how

3 some people may perceive that noise and some people may

4 not?

5 A. What I meant by that was that everyone's hearing ability

6 will vary. Like your eyesight will vary, your hearing

7 acuity will vary. So different people, depending on

8 what age they are, what their lifetime noise exposure

9 has been, will have different hearing acuity.

10 That can be assessed by putting earphones on or

11 muffs on and feeding known sound in and seeing whether

12 they can hear it or not. Those are sorts of tests and

13 medical tests.

14 Q. What a microphone might hear under those circumstances

15 might not be the same as the human ear would perceive?

16 A. The microphone detects sound differently from the human

17 ear, but then there is a correction applied for the, if

18 you like, average human ear, which is an A-weighting

19 correction, and that deducts decibels from the lower

20 frequencies, because the human ear doesn't respond well

21 to low frequencies, and it sort of, if you like, mimics

22 how the human ear will hear a noise.

23 Q. Mathematically --

24 A. But that's mathematically. But that won't -- I think

25 the point that you are asking me is, that won't tell you

1 whether an individual would have heard that or not

2 because the individual will have their own fingerprint,

3 if you like, in terms of what they can hear and what

4 they can't hear.

5 Q. What sort of things would affect a person's hearing over

6 their lifetime? Would rapid gunfire, training with

7 arms?

8 A. It could be -- those are -- you have described types of

9 noise-induced hearing loss. But there are lots of

10 different reasons why you could have hearing loss.

11 Q. The major one would be age. Is that correct?

12 A. Age would be one. It could be infection. It could

13 be --

14 Q. Explosions?

15 A. Yes. That type of thing, yes.

16 Q. Involved in constant and persistent shooting. That's

17 one of the things that's recognised as affecting

18 hearing?

19 A. Yes, that would cause noise-induced hearing loss.

20 Q. So someone with good hearing might hear something, and

21 someone whose hearing was affected by age or by damage

22 would not hear it?

23 A. Yes. That's true.

24 Q. Now, do you hear better low frequencies or high

25 frequencies or middle frequencies, and what do you class

1 as low, middle and high?

2 A. The human ear --

3 Q. If this is beyond your expertise --

4 A. It is a bit beyond. I do know that the human ear

5 responds best at round about between 1 and 4 kilohertz

6 which tends to be the level at which voices speak. The

7 human ear doesn't respond as well to low frequency noise

8 or very high frequency noise.

9 So that -- that's -- you mentioned about

10 noise-induced hearing loss, and noise-induced hearing

11 loss tends to be detected at around about 4 kilohertz in

12 the spectrum.

13 Q. So the top end of the spectrum is where the damage would

14 show and the hearing would be less effective?

15 A. Sorry, the top end of the -- at around about 4K, which

16 is -- it's not the top end. I would be talking about

17 low frequency at 31.5 hertz and high frequency at maybe

18 16,000-hertz. It is a big range.

19 Q. Of course it is.

20 A. My expertise isn't in that medical --

21 Q. I do appreciate that, and I do thank you for your help.

22 I was wondering, if there was noise outside the

23 Land Rover and there was also noise throughout the

24 complete range of the spectrum inside the Land Rover,

25 both mechanical, human voices, maybe conversations,

1 machinery noises, would they occupy the whole of the

2 spectrum or would they tend to concentrate in the

3 hearing/audio part of the spectrum?

4 Obviously, if you can hear them, it's in that area.

5 So where would they tend to be, or would they just mask

6 the whole spectrum?

7 A. Which noises?

8 Q. I'm talking about, first of all, conversation within the

9 Land Rover; secondly, the introduction of, say,

10 electrical noise such as, say, a radio calling or making

11 noise in the background; also the fact that there was

12 a fan, an air conditioning system, possibly other noises

13 from the engine. How much noise would that create?

14 You have measured it at 64 decibels as the level of

15 the background noise. But that was without people.

16 There was a fan at 3, I think, and you don't know

17 whether it was directed in or out --

18 THE CHAIRMAN: This question goes on and on, and it becomes

19 much harder for the witness to answer because he doesn't

20 remember, or may not, the first half of it. Can you not

21 break it up a bit?

22 MR MALLON: I will try.

23 In outlining the whole panorama, what I am really

24 saying is, when you measured the noise inside the

25 vehicle, that was within a vehicle with only two people

1 in it. Isn't that right?

2 A. Yes.

3 Q. Were those people yourself and your assistant or the

4 both of you?

5 A. Yes.

6 Q. Were you in any way trying to mimic what noise would

7 have been in the vehicle when you were measuring it?

8 A. No, we had to keep quiet in order to do the noise

9 measurement.

10 What may help you is that I did do a frequency

11 analysis of the noise in the vehicle, and that was

12 included in the report. It was done for one of the

13 scenarios at the end, and that was where, rather than

14 take an overall look at the noise and quote it as

15 a single figure, I looked at the individual spectra and

16 quoted -- and the results are on one of the pages of my

17 report.

18 I think what you will see there is that the low

19 frequencies are -- there are higher levels at the low

20 frequencies.

21 But this gets complicated, because that's not what

22 the human ear would hear. I am not sure what page that

23 is in my report.

24 Q. Page [08172], please.

25 A. Yes, at the very bottom there. This was a noise

1 frequency spectrum. I don't know if it helps to answer

2 your question, but it is a noise frequency spectrum that

3 was carried out with both doors closed and with the

4 engine idling and with the fan off and with no traffic

5 noise from outside. You can see that they are at

6 63 hertz, 86.2 decibels, 125. Those are decibels in DB,

7 those are linear decibels.

8 To apply an A-weighting correction to that, you

9 would subtract values from each of those across, until

10 you get to about 1,000, where the correction is 0.

11 I can't remember, but I think the correction of 63 is

12 you take 26 decibels off. So the human ear doesn't

13 respond well. It might be 16, 9, 40, something like

14 that. I don't have that information.

15 Q. When I look at that, it appears that the noise spectrum

16 covers all of the range.

17 A. Yes.

18 Q. And --

19 A. It's gone up to 8,000 hertz.

20 Q. That was way beyond what the human ear would hear.

21 A. No, the human ear will have a response at 8,000 hertz.

22 Q. It will?

23 A. It will have a response. But the human ear hears best

24 in around 1, 2 and 3, around about there is the best,

25 maybe 4. Again, it is a wee bit beyond.

1 Q. Beyond what your experience is.

2 So the noise outside -- if you had been asked to

3 decide or to assist on noise coming into the Land Rover,

4 would you have set up a different experiment for that,

5 in that you would have set up a noise outside that you

6 could control?

7 A. If I was to -- yes, I suspect I would, yes.

8 Q. How would you have known what level that noise was?

9 A. I wouldn't have a clue.

10 MR MALLON: Thank you.

11 MR UNDERWOOD: Nothing arising. Thank you very much.

12 THE CHAIRMAN: Thank you, Mr O'Boyle.

13 MR UNDERWOOD: Thank you, Mr O'Boyle.

14 (The witness withdrew)

15 MR UNDERWOOD: Rachel Murphy, please.

16 MS RACHEL MURPHY (sworn)

17 Examination by MR UNDERWOOD

18 MR UNDERWOOD: Good afternoon. My name is Underwood and

19 I am Counsel to the Inquiry. I have some questions for

20 you. After that, it may well be that some others will

21 have a few more questions.

22 Can I ask you your full names, please?

23 A. Rachel Murphy.

24 Q. Thank you.

25 I want to identify a string of documents with you,

1 if I may. First of all, page [81025]. This is

2 a document of two pages. Perhaps we could just look at

3 the second page as well. Can you identify whether that

4 is your witness statement?

5 A. That's my witness statement, yes.

6 Q. Are its contents true?

7 A. They are true, yes.

8 Q. Then you tell us in there that you were involved in

9 a search of a Hobson house on 10 May 1997, Elizabeth

10 and Kenneth Hanvey's house on 13 May 1997, and

11 Thomas Hanvey's house on 13 May 1997.

12 What I want you to do, please, is have a look at

13 documents that relate to those.

14 First of all, if we look at page [09301], is that

15 your statement of 10 May 1997 dealing with the Hobson

16 search?

17 A. That's correct, yes.

18 Q. Moving on to the Kenneth and Elizabeth Hanvey search, is

19 your witness statement -- if we look, please, at page

20 [09299], is that your witness statement dealing with

21 that?

22 A. It is. That's correct.

23 Q. If we look at page [50016], is that your notebook entry

24 typed up for that search?

25 A. I believe so, yes.

1 Q. Thank you. Now, on that, we have the typed-up version

2 of the PACE Form 29 of the search record. Perhaps we

3 could have a look at those. At page [50023] -- this is

4 the HOLMES version, so it wouldn't have been the one you

5 compiled, of course, but do you recognise this as the

6 copy Form 29?

7 A. Yes, the information contained would be the same.

8 Q. Is this a standard form which you complete as you go

9 along in manuscript during a search?

10 A. It is, yes.

11 Q. It happens, because this was an investigation that was

12 put on the HOLMES, that it's then transcribed like this.

13 Is that right?

14 A. Yes.

15 Q. That's right, is it? Thank you. You were responsible,

16 I think, for completing this, were you?

17 A. That is right. I was the search log keeper.

18 Q. If we look down, for example, just on page [50023], you

19 have under "Existing damage/condition on first

20 inspection", you deal with a hole in the wall in

21 bedroom 1, behind the hall handle door, a rip on

22 a telephone stool in the hall.

23 Is that the sort of detail which you would normally

24 have engaged in in doing a search or was there anything

25 unusual about that?

1 A. No, there is nothing unusual. When I would go to any

2 search, the first thing I would do before the team would

3 enter is I would go round and do a damage check with one

4 of the property owners or one of the people that were

5 present during the property, and I would note any damage

6 so there would be no allegations that we had caused that

7 damage.

8 Q. Okay. If we look at page [50029], we have the log --

9 will you confirm this is the log?

10 A. Yes, that is.

11 Q. Thank you. Looking at that, you give a time and event

12 for what was, in fact, the commencement and the

13 termination of searches of bedrooms 1 and 2, hot press

14 and bathroom and bedroom 3?

15 A. Mm-hm.

16 Q. Over the page [50030], kitchen and utility room, et cetera.

17 That, as far as we can see, was a complete search of the

18 premises.

19 Was there anything unusual about that? When you

20 were sent to search a property, would you ordinarily

21 have searched the entire premises?

22 A. Yes, that's correct.

23 Q. Then, if we look finally in terms of the three searches

24 you were involved in that we are concerned with,

25 Thomas Hanvey's house, if we look at page [09300], is

1 that your witness statement of 13 May, dealing with that

2 search?

3 A. It is, yes.

4 Q. Going to [50139], we have blanked out the address for

5 which this is the notebook entry, but can you help us

6 with whether this is your notebook entry for that

7 search?

8 A. Yes, it would be.

9 Q. Then finally, at page [50121], there's the -- another

10 Form 29. Is that the Form 29 for the Thomas Hanvey

11 property search?

12 A. Yes, that's correct.

13 Q. Thank you very much. I have just got some more general

14 questions about searches, if I may.

15 Can you help us with what the various roles of the

16 various officers concerned with the search are, starting

17 with the log keeper? What was the duty of the log

18 keeper?

19 A. The duty of the log keeper is to maintain a record of

20 the search whilst it is being conducted. I would not be

21 involved in actually searching the premises, but I would

22 be involved in going to and fro from the relevant search

23 teams, if there was one or if there was two, to note

24 down the timings they would enter or leave each

25 individual room, and if they had recovered any property

1 from any of those rooms, I would also note that down in

2 the log.

3 So I would keep a full record of what happens, and

4 if anything occurs within the house, it's noted in the

5 log.

6 Q. Again, help us out with generalities here. Ordinarily,

7 in searching a house that may have had, say, three

8 bedrooms, how many officers would normally be involved?

9 A. It would depend purely on resources. That's all I can

10 say. It would depend on resources.

11 Q. Very well. When you were a log keeper for a search,

12 what sort of documentation would you have in advance?

13 What would be included in the search pack?

14 A. I can't recall now. I can't recall.

15 Q. In terms of the briefing for what was to be searched for

16 and what was to happen during the search, would that

17 always have been a face-to-face discussion or would

18 there have been documentary briefings?

19 A. At that time, I believe it was a face-to-face

20 discussion.

21 Q. I take it you can't recall the briefings for these

22 particular searches?

23 A. No, not -- no.

24 Q. If I take you to page [04562], this is an action record

25 of an interview of a DC McCrumlish who was on the search

1 of the Kenneth and Elizabeth Hanvey home with you. You

2 may not have seen this before. Let me take you to part

3 of it.

4 If we look in the body of it, do you see the numbers

5 1, 2, 3, 4 down the left-hand side?

6 A. Mm-hm.

7 Q. This is an interview of DC McCrumlish in November 2000,

8 and just above the number 1:

9 "Salient points extracted from interview record

10 relevant to this action:

11 "1. DC McCrumlish states that he was briefed to

12 carry out a search of", the address has been blanked

13 out, "home of Alistair Hanvey.

14 "2. DC McCrumlish recalls that a dark-coloured

15 jacket with grey sleeves had not been found by police."

16 That refers to an earlier search, I should tell you:

17 "Recalls that he was briefed to search for clothing

18 that Hanvey may have worn on the night of the murder to

19 locate and seize a jacket which fitted or was similar to

20 this jacket with grey sleeves and to search for evidence

21 of burnt material (clothing).

22 "3. DC McCrumlish does not recall who briefed the

23 search team that accompanied him.

24 "4. DC McCrumlish states that while the search team

25 were in the house, he spoke briefly with Kenneth Hanvey

1 and searched the area of ground immediately adjacent to

2 the house. States that he did not go beyond the garden

3 area and he did not go into the adjoining fields.

4 States that he did not go into the adjoining land

5 because there was no obvious signs of recent tracks in

6 the grass area surrounding the house. Cannot recall

7 searching any outbuildings. States that examined the

8 immediate ground around the home, the search team

9 searched inside the property."

10 If we jump down to 6 briefly:

11 "6. DC McCrumlish states that he found no evidence

12 of burnt material/debris in the area that he searched

13 and nothing was seized from the search which was

14 conducted inside the house."

15 Does that help you with recalling this search?

16 A. In what regard?

17 Q. Do you recall DC McCrumlish being there?

18 A. I knew that he was there because the search log had told

19 me. So, yes, I did remember.

20 Q. Do you recall that there was specific concern directed

21 to a jacket or to evidence that anything had been

22 burned?

23 A. The only thing I know is from the first entry in my

24 notebook, which was relating to Hobson, that I had noted

25 from the interview that I had from DI Irwin -- or,

1 sorry, the briefing that I had from DI Irwin, that we

2 would look for various articles of clothing and within

3 that was a jacket.

4 In my other two notebook entries to do with the

5 later two searches, I did not have that, so I can't say

6 that.

7 Q. As I say, we know that there had been an earlier search,

8 in fact, on 10 May, which had failed to discover

9 a jacket of this description, and failed to discern any

10 evidence of burnt clothing.

11 That being the case, when you were briefed on

12 13 May, would it have been in order for you not to have

13 been told about that?

14 A. No, definitely not. I am sure it could have been in the

15 briefing. All I say is that I can't honestly say that

16 I remember that.

17 Q. I understand that. Can you help us with whether it

18 should have been in the briefing?

19 A. It should have been in the briefing. If that's the

20 items that we were going to look for -- I believe in the

21 PACE 1 I have written that I was searching for items of

22 clothing, and no more specific than that, but the

23 briefing may have been more specific than that.

24 Q. Should the briefing have told you that there had already

25 been a failed search?

1 A. There would be no reason why not to say.

2 MR UNDERWOOD: Those are the questions I have for you.

3 Thank you very much. As I said, it may be that others

4 have some more.

5 Further examination by Mr MALLON

6 MR MALLON: As the log keeper on the search, you record

7 people going into and out of the house. Isn't that

8 right?

9 A. That would be normal, yes.

10 Q. You would leave the house secured. Isn't that correct?

11 A. If there was no residents in the house --

12 Q. Yes --

13 A. -- no occupiers?

14 Q. Part of your duty is to make sure the house is secure?

15 A. We would try to ensure it is as secure as possible. If

16 it is not, we would have to get a tradesperson out to

17 try to remedy that. There's only so much we could do.

18 Q. You would not leave it until the house was secured?

19 A. Not necessarily.

20 Q. You have left houses unsecured?

21 A. I don't believe it has ever happened to me. Generally,

22 there is an occupier there. If there's occasions, we

23 try to secure it as best we can, and then we try to

24 arrange that they are secured as soon as possible.

25 Q. I see.

1 A. I can't talk about hypotheticals, I can only talk about

2 my experience.

3 THE CHAIRMAN: Can you tell us whether there was anyone at

4 the house when you searched it?

5 A. Which house are we talking about?

6 MR MALLON: Either of them.

7 A. I honestly cannot recall. I don't know.

8 Q. In general terms, have you ever been involved in keeping

9 a log in a house which was being searched and in which

10 a team was inserted into the house to plant a covert

11 listening device?

12 A. I have not. Not that I'm aware of.

13 Q. Have you ever received any instructions in relation to

14 recording anything of that nature?

15 A. I have not.

16 MR MALLON: Thank you.

17 Examination by MR GREEN

18 MR GREEN: The search of Mr Hobson's address was conducted

19 on 10 May. Is that right?

20 A. That's correct.

21 Q. You were detailed the log keeper for that. Have you

22 been shown the actual log for that search as part of the

23 documents for your appearance here today? We've seen

24 the log for the Hanvey household at, I think, page

25 [50029]. Have you seen a log for Mr Hobson's search?

1 I see a shaking of the head.

2 A. I don't know, to be honest.

3 Q. Did I pick you up correctly, Ms Murphy, that you do

4 recall the briefing given by DI Irwin that you were to

5 look for specific articles of clothing?

6 A. What I'm saying is in my notebook I had that recorded.

7 Q. Do you have in your notebook the actual items of

8 clothing, or do you recall what the actual item of

9 clothing was that you were meant to look for?

10 A. I remember -- is my notebook entry available? It was

11 shoes, jeans and -- I believe it was a grey sweatshirt

12 or something like that. Just from memory. It is in my

13 notebook.

14 Q. In terms of the clothing that you retrieved, did you

15 retrieve any of the clothing that you were sent to look

16 for?

17 A. No, we didn't.

18 Q. Finally, you were asked about the search pack, that is

19 the information that you would have at your disposal to

20 assist you in the search. That can come from either

21 a verbal briefing. Sometimes it might, in fact, include

22 statements of some witnesses that they might have made

23 perhaps listing -- have you ever had a statement to work

24 from?

25 A. I don't believe so. The search pack generally we would

1 have brought with us. My more full briefing -- the

2 person doing the briefing, wouldn't necessarily hand you

3 the briefing pack. They would just be blank documents

4 that we would already have.

5 Q. So the person giving you the briefing, whatever material

6 he would have, he would just give you an oral briefing

7 from whatever documents he had. You, yourself, would

8 not get any statements or documents. Is that right?

9 A. I don't believe that I have in the past. I can't

10 recall.

11 MR GREEN: Thank you.

12 Examination by MR O'HARE

13 MR O'HARE: I represent this witness, Mr Chairman.

14 Just one brief matter, Ms Murphy. Do you recall

15 whether or not items were taken by the police at the

16 search of the Hobson house?

17 A. I don't. I don't. I was too quick to answer that.

18 I don't recall.

19 MR O'HARE: Thank you.

20 THE CHAIRMAN: Is this the Hobson house?

21 MR UNDERWOOD: Yes.

22 THE CHAIRMAN: Thank you.

23 MR UNDERWOOD: I have no questions arising from that. Thank

24 you.

25 THE CHAIRMAN: Thank you very much.

1 MR UNDERWOOD: Thank you very much, Constable.

2 (The witness withdrew)

3 MR UNDERWOOD: So that is the evidence for today.

4 I'm very conscious that we have got out of sequence

5 for witnesses as a result of make do and mend while the

6 anonymity applications have been on, and so what was,

7 I trust, a reasonably logical sequence by which we were

8 going to go through the officers at the scene, followed

9 by the officers in the early investigative stages and

10 then the deeper investigative stages, we are mixing and

11 matching.

12 I wonder whether it would be helpful if I gave you

13 some idea in terms of opening of where we are with the

14 investigation?

15 THE CHAIRMAN: Yes, please.

16 Submissions by MR UNDERWOOD

17 MR UNDERWOOD: We are still, of course, awaiting the

18 evidence of most of the officers in the Land Rover,

19 having heard, so far, only P40.

20 The position about that is that Mr Atkinson,

21 I trust, will give evidence on 11 May. Mr Neill will

22 give evidence a little after that. The remaining

23 officer, who I think you understand has been sadly

24 involved in a very serious car accident, is to be the

25 subject of further consideration.

1 There are still one or two civilian witnesses who

2 were at the scene, not least Tracey Clarke, who have yet

3 to give evidence. But otherwise, the evidence that we

4 are embarking on now is that of the investigation.

5 Of course, you have already heard some of that, not

6 least Mr Honeyford, completely out of sequence for

7 simple practical reasons early on, and also some

8 evidence so far about the CCTV evidence.

9 If I can collect where we are then, we are going

10 quite shortly to Mr McMullen, who was the uniformed duty

11 officer for J Division over the weekend of 26/27 April.

12 He attended Portadown at about 8.30 in the morning of

13 27 April, having been contacted by Inspector McCrum. He

14 was briefed, and he will tell you that his task was to

15 ensure that there were sufficient resources for the

16 detectives to deal with it, and he will deal with the

17 standard which was to be expected of the early stages of

18 the investigation. I hope he can set that scene within

19 the next day or so.

20 I will also call scientific evidence. There are two

21 aspects to this. By "scientific", I mean what's

22 colloquially called forensic evidence, which is

23 a tautology.

24 There are two aspects. The first is what the

25 forensic scientists were able to discover. The second

1 is whether there was any want of due diligence on the

2 part of the forensic scientists on their part.

3 I say that because, as we are now told, in respect

4 of the DPP, it's the task of the Inquiry to look at due

5 diligence of anybody involved sufficiently closely with

6 the investigation, whether or not they were members of

7 the RUC.

8 So dealing first with the substantive results of the

9 forensic science work, the initial work was carried out

10 by a gentleman called Lawrence Marshall. He was given

11 samples which had been lifted from the scene by the

12 Scenes of Crime officer, Mr Ardis. He was given those,

13 we think, on 10 May 1997, and no further samples were

14 submitted after that.

15 He was able to report, as quickly as 12 May 1997,

16 orally, that blood on Mr Hamill's jeans was from

17 Stacey Bridgett.

18 As far as we can ascertain, no other matches of any

19 value were made in the forensic exercise.

20 Wayne Lunt's fingerprints were found on a bottle at

21 the scene, which is uncontroversial, but in case there's

22 any thought that DNA testing might have been of any

23 value of that, the conclusion is that the fingerprinting

24 technique destroyed any DNA evidence there might have

25 been. So if there was any question of whether

1 Mr Hamill's tissue got onto that bottle, it would be

2 impossible to know.

3 There was a re-evaluation of the DNA evidence in the

4 light of advances in DNA technology in around 2000, and

5 that was done again by Mr Marshall, and also by

6 a Ms Colette Quinn.

7 Again, it resulted in nothing.

8 There's one intriguing question mark, which is that

9 there was a good deal of blood on the road where

10 Mr Hamill was, and on Mr Hamill's clothing, which hasn't

11 been identified, save that it came from a male. He has

12 been called Unknown A, and we are at a loss to identify

13 anybody who was bleeding at the scene but who has not

14 been tested for DNA.

15 THE CHAIRMAN: When you say it's not known whose it was, has

16 it been established that it was not Robert Hamill's?

17 MR UNDERWOOD: Yes.

18 THE CHAIRMAN: Thank you.

19 MR UNDERWOOD: There are a number of people who were at the

20 scene who, of course, did not give DNA, but we haven't

21 identified any of them who may have been bleeding. At

22 least in the proximity and in the volume that would have

23 given rise to that amount of blood.

24 So far as due diligence is concerned, there appears

25 to be no reason to believe that the testing itself was

1 inadequate. Of course, the one crucial piece of

2 evidence -- namely, that Mr Bridgett's blood was found

3 on Mr Hamill's jeans -- was found remarkably quickly,

4 within two days.

5 It's an unfortunate fact that Mr Marshall didn't

6 actually compile a report until 24 October 1997 and it

7 may well be that people were held in custody longer they

8 ought to have been, pending the delivery of that report.

9 Whether that's a want of due diligence that is

10 relevant to the investigation is another matter. But

11 there it is. That's the height of the issue as to

12 whether there was a want of due diligence on the part of

13 the forensic scientists.

14 Another part of the, as it were, technical evidence

15 is the CCTV question. You have seen for yourself the

16 scene several times, and there appear to be no cameras

17 at the address from which we heard the witness last

18 week -- sorry, about three weeks ago now.

19 Monica O'Reilly, whom I, I confess, led into suggesting

20 that what appeared to be cameras on the

21 Alliance & Leicester, might have been cameras. She was

22 very diffident about accepting it from me, and rightly

23 so.

24 THE CHAIRMAN: She thought they were uplights, I think.

25 MR UNDERWOOD: You have also already heard from two of the

1 sisters of Robert Hamill, who told you what DI Irwin

2 told them about the viewing of the tapes disclosing that

3 the Land Rover could be seen, but nothing else of

4 relevance.

5 You will be hearing from Detective Constable Keys

6 about seizing and viewing the tapes as well as another

7 detective constable, Mr Lilly.

8 There's obviously an issue to be resolved about what

9 could be seen, and whether, indeed, at the date the

10 tapes were being viewed, what the police regarded as

11 relevant, because at the date they were being viewed and

12 before they were handed back, there was no complaint --

13 no formal complaint at least -- against the police for

14 neglect of duty.

15 A third aspect of the technical evidence that might

16 have been available to the police is the noise level

17 that could have been heard inside the Land Rover.

18 To be fair, it's difficult to see how this goes to

19 anything other than the neglect complaint. But what you

20 have already got from Mr O'Boyle is that he identified

21 five variables in what would have been necessary to

22 establish whether occupants of the Land Rover could have

23 heard noise from the outside, including the acuity of

24 those inside the Land Rover and what was going on outside.

25 He tested two of those variables: namely, the noise

1 inside created by the Land Rover, and what difference it

2 made having the doors open. But that went nowhere, of

3 course, in terms of what given police officers could

4 have heard of given noise outside it.

5 As Mr Mallon established from him, unless you knew

6 exactly what sort of noise was going on outside, how can

7 you test what it was that could have been heard inside,

8 so you may feel that was a fairly futile exercise of

9 asking him to conduct those tests.

10 THE CHAIRMAN: It would be of interest if we hear what

11 consideration was given from the police's side on the

12 kind of investigation required.

13 MR UNDERWOOD: Just so. Of course, Mr Irwin will be asked

14 why it was he briefed Mr O'Boyle to do the tests he did,

15 but only the tests he did, and what value he thought

16 they could possibly give.

17 So that, then, is a very short consideration of the

18 technical sides of the evidence there might have been.

19 We will then go into, of course, the witnesses who

20 dealt with the ground work of interviewing, analysing

21 and progressing.

22 I think reference has already been made to an

23 investigation much later in the day, conducted under

24 Superintendent Karen Kennedy, which found a reasonable

25 amount wanting of the early stages of the investigation,

1 and, indeed, Colin Murray, whom I propose to call at the

2 very end of the evidence, will give some support to

3 a suggestion that it was the early aspects of the

4 investigation that were both crucially important and not

5 done properly.

6 The way in which Mr Murray analyses it, and you may

7 find helpful, is to look at this in terms of five

8 aspects.

9 Firstly, whether forensic science was used properly.

10 Secondly, whether there was an adequate strategy for

11 obtaining evidence from civilian witnesses, including

12 the use of press releases there.

13 Thirdly, the use of a policy book.

14 Fourthly, arresting suspects. And wrapped up in

15 arresting respects is the question of how the allegation

16 against Mr Atkinson should have been dealt with.

17 Fifthly, searching.

18 What I will do is, under each of those five heads,

19 give a preview of the evidence I'm proposing to lead on

20 those issues, including the documentary evidence such as

21 the diagram drawn by Mr Ardis, who was the Scenes of

22 Crime officer, showing what he picked up from where and

23 how that was tracked through, the standards by which the

24 scene should have been preserved and so forth.

25 I suspect there's probably about half an hour to

1 an hour's worth of material to go through, to set that

2 scene. I don't know whether it would be more convenient

3 to do it now or tomorrow morning. I'm entirely in your

4 hands.

5 THE CHAIRMAN: Can you do part of it now?

6 MR UNDERWOOD: Certainly. The forensic strategy, to start

7 with, then, as I have said, samples were taken by

8 Mr Ardis. If we look at page [08161] on the screen, we

9 can see the -- this is the HOLMES version of it --

10 document compiled by him.

11 Looking down, about half a dozen lines down here, we

12 see date, time of request. So the request for his

13 intervention is 0800 on 27 April 1997. So whatever else

14 DC Keys may have been criticised for at various stages,

15 he can't be criticised, I would suggest, for being slow

16 at getting a Scenes of Crime officer on the ground.

17 Date and time of arrival, 27 April 1997, 10 o'clock.

18 Then, if we go over the page, [08162], this is his

19 statement of what he picked up.

20 THE CHAIRMAN: This is the Scenes of Crime officer?

21 MR UNDERWOOD: This is Mr Ardis, yes.

22 Again, when you come to see the Kennedy report,

23 there was a very critical analysis conducted of whether

24 adequate samples, as it were, were taken. But here you

25 see -- taking the text:

1 "I found at the scene at Market Street, Portadown,

2 between the junctions of Thomas Street and

3 Woodhouse Street, a number of small areas of

4 bloodstaining, some pieces of broken timber, some broken

5 green bottle glass (separate areas on each side of the

6 street), an empty beer tin (at the junction of

7 Woodhouse Street) and, in a flowerbed on a traffic

8 island on the Church Street side of the junction, a

9 half-full bottle of Buckfast wine and an empty bottle of

10 Buckfast wine. I took from the scene the following

11 items, marked on rough maps as to the locations from

12 which they were taken."

13 You see MAA1 to MAA4 are blood samples. 6 is broken

14 pieces of wood, 7, broken pieces of wood. He tells you

15 there where they were taken from. MAA8 is broken

16 bottle glass, as is 9. 10 is a beer tin. 11,

17 a half-full wine bottle. 12, an empty wine bottle.

18 If we go to page [08164] we see the sketch where he

19 sets out those MAA numbers.

20 Then I don't know whether we can twist that

21 90 degrees or, better still, 270 degrees.

22 THE CHAIRMAN: Yes.

23 MR UNDERWOOD: So again, of course, this having been

24 a criminal investigation with chain of evidence

25 procedures, when we come to see the analysis by

1 Mr Marshall, then, he analyses blood stains by reference

2 to these MAA numbers, so we can track through where

3 particular stains were found on the road.

4 Certainly -- as I say, whatever criticism there may

5 have been at various stages of Mr Ardis failing to pick

6 up pieces of debris, certainly nothing our team has been

7 able to discern calls for criticism there at this stage.

8 Obviously that is a matter for you, but he has

9 picked up what he has seen and what he has described,

10 and nobody else that I have been able to see has been

11 able to say there was anything else he should have

12 picked up and didn't.

13 The standards by which the scene should have been

14 preserved and samples taken was set in a Force Order.

15 We see that at page [10768]. I could take this fairly

16 quickly. The introduction, the first four paragraphs,

17 says:

18 "Sophisticated scientific and fingerprint

19 examination and comparison techniques are available to

20 investigators to realise maximum evidential value from

21 forensic examinations of scenes of crime. However, the

22 value of any forensic connection of a suspect to the

23 scene of an offence can be lost in the absence of basic

24 scene preservation procedures. Scene preservation is

25 a significant factor in any criminal investigation. All

1 members must recognise their responsibility to

2 acknowledge, adhere to and implement the ethos of scene

3 preservation.

4 "2. Terrorists and criminals have learnt how best

5 to avoid being made amenable to the courts. Defence

6 scientific examinations are increasingly prevalent in

7 investigations, and arising from these examinations

8 defence counsel explore and challenge all aspects of

9 scene preservation, contamination, notes, continuity of

10 possession of exhibits in the case and general

11 evidential integrity.

12 "3. Expert scene examiners and support services

13 staff may have to give evidence of their findings. If

14 good scene preservation is demonstrated, then the

15 evidence of findings reinforces the Crown case. If bad

16 scene preservation is disclosed, the case can be

17 considerably weakened.

18 "4. It is essential, therefore, that the basic

19 principles of preservation and examination are strictly

20 adhered to. This should be the case at all crime scenes

21 and not solely at serious outrages such as bombings,

22 shootings and murders."

23 Again, the reason I go to this, is, although, so far

24 as one can tell, no criticism could be levelled at

25 Mr Ardis, he doesn't get there until 10 o'clock, and

1 there is a question mark over whether there was any

2 attempt at scene preservation, as it were, overnight,

3 from about 3 o'clock in the morning until roughly

4 8 o'clock, when his services were called for.

5 Again, the standard by which the preservation should

6 have been set is demonstrated over the page at [10769].

7 The first paragraph 4 on the page, in upper case:

8 "Except for the purposes of preserving life or

9 preventing further injury, scenes must only be entered

10 by persons under the direct control of the (senior)

11 investigating officer [(S)IO]. These persons will always have

12 a function to fulfil for the (S)IO. No unauthorised

13 persons may be allowed to enter."

14 Going back to the substance of the text here,

15 "3. Duties at a scene", if we can pick up paragraphs 2, 3

16 and 4 under that:

17 "(1) One set of instructions cannot cover duties and

18 procedures for all scenes of crime. The following

19 paragraphs outline the general procedures to be followed

20 and can be augmented by officers using initiative and

21 common sense to suit prevailing circumstances.

22 "(2) The primary duty of the first police officer on

23 arrival at a scene involving casualties must be directed

24 towards the preservation of life. This duty must be

25 immediately followed by the necessity to 'preserve the

1 scene', to enable correct scene interpretation and

2 identification and collection of all available evidence.

3 "(3) When the primary duty referred to above has been

4 attended to, police should withdraw from, 'seal off' and

5 preserve the scene. All unnecessary personnel,

6 including police, military, public or the news media,

7 must be excluded until otherwise directed by the (S)IO.

8 "(4) In respect of serious incidents, preservation of

9 a scene will invariably mean taping off the immediate

10 scene area (incident scene) and, if considered

11 necessary under the circumstances, taping off another

12 wider area (holding area). The incident scene should,

13 where appropriate, include ..."

14 Then we have "paths of entry", et cetera.

15 Then if we go down to 6 and 7:

16 "(6) When the extent of the incident scene has been

17 identified and taped off, the first officer will act as

18 Scene Log Officer (SLO). When several police officers

19 arrive at a scene, the senior member will appoint the

20 SLO and take charge pending the prompt arrival of the

21 (S)IO."

22 You will recall Officer A operated as the log keeper

23 at least.

24 Then at 7:

25 "(7) The SLO will be positioned at a suitably identified

1 Incident Control Point (ICP) within the holding area adjacent

2 to the entry path to the incident scene. Consistent

3 with security, the ICP should be clearly marked by

4 an appropriate sign or other means of identification.

5 On arrival at the scene, all support and other

6 agency personnel should report to the holding area for

7 briefing by the (S)IO and subsequent controlled access to

8 and exit from the incident scene past the ICP."

9 Then over the page, at [10770], under paragraph 4,

10 "Scene examination", if we just pick up the first two

11 numbered paragraphs under 4, "Scene examination":

12 "The (S)IO has responsibility for having the scene

13 properly examined. In liaison with support personnel

14 and other relevant agency personnel, thorough and

15 systematic examination of scenes must be carried out to

16 obtain as much evidence and information as possible.

17 "Only personnel essential to the examination of the

18 scene should enter the scene, irrespective of rank or

19 professional status."

20 Then finally, over at page at [10771], paragraph 6,

21 "Statements of evidence":

22 "1. Current serious crime investigation procedures

23 require all persons entering the incident scene and

24 named on scene log sheets to submit statements of

25 evidence detailing their duty at the scene. Failure to

1 do so could jeopardise the admissibility of forensic

2 evidence which could be crucial to the Crown's case."

3 Now, as I say, because of the way in which the

4 evidence has got rather out of sequence, you have

5 already heard from officers about what happened.

6 The thrust of it is that the area was cleared by

7 about 3 o'clock or so of youths -- if I can use the term

8 that broadly -- but that the scene wasn't taped off

9 until after 8 o'clock in the morning. There doesn't

10 seem to have been a point at which, before it was taped

11 off, it was regarded as a crime scene to be preserved.

12 Again, you have heard evidence that police didn't

13 leave the scene, but there was no question of anybody

14 being appointed log keeper before Constable A, no

15 question of all those officers, who, as it were,

16 trespassed on it, being forced to give evidence or make

17 statements saying what they did.

18 When we come to Mr Murray's expert evidence, he will

19 say that this was the start of a series of failings

20 which appears to have compromised the investigation.

21 While we are on the question of forensic strategy,

22 as I say, there appears to be no basis for criticising

23 Mr Ardis. Insofar as there's any question mark over

24 Mr Marshall, it's simply about the time which it took to

25 produce a report.

1 But having said that, there appears to have been no

2 strategy in respect of this. Mr Ardis turned up, did

3 his job, left the scene, and disappeared from the

4 matter. Mr Marshall took the materials, was able to do

5 his tests or do the one match there was within a couple

6 of days, and then -- if I can be this loose and flippant

7 about it -- floats along before doing his report,

8 without any apparent supervision from anybody or chasing

9 or system by which there was rigorous testing of when he

10 was to produce his report and whether there was anything

11 else to produce.

12 The next set of factors then is the obtaining

13 evidence from civilian witnesses.

14 We know that, as a matter of principle, where police

15 officers at the scene were able to identify any

16 witnesses by name, then they were seen. These

17 questionnaires, QPFs, were administered to those

18 witnesses and some of those witnesses then gave

19 statements.

20 In the course of that process, where those witnesses

21 were able to name other witnesses or prospective

22 defendants, then, likewise, QPFs were administered.

23 Where this perhaps fell down is that a number of

24 officers at the scene seem to have been less than

25 diligent in coming up with names and identities of those

1 they might have seen.

2 It's very notable -- for example, we have seen

3 Mr Warnock and Mr Cooke, who were able to name loads of

4 people. One of them actually toured the scene at

5 5 o'clock the next morning and was able to come up with

6 names then of people he had seen at the relevant time.

7 Whereas you have other officers who lived and worked in

8 the area for years and who were at the scene for quite

9 a long time, who appear to have been unable to recognise

10 anybody or more than one or two people. We have yet to

11 see most of those witnesses and in due course it will no

12 doubt be necessary to decide why it is they weren't more

13 forthcoming.

14 Again, that may have been a matter of debriefing, it

15 may have been a matter of recollection, it may have been

16 deliberate. That is obviously a matter for

17 investigation.

18 There's also this. Once people were identified, one

19 has to, of course, get evidence from them.

20 You have seen some people were just about prepared

21 to have a QPF administered to them, and then steadfastly

22 refused to give a statement. Other people refused to

23 turn up to the police station to give any sort of

24 statements whatever, and you have graphically,

25 I suggest, seen just what sort of difficulties the

1 police might have faced in getting people to come

2 forward.

3 However, there are two aspects which call for

4 careful investigation. One is the way in which the

5 neglect complaint investigation was allowed to become

6 entangled with the murder investigation.

7 The relevance of that is that people were very often

8 asked to come twice to the police station, and asked in,

9 as we will see, quite odd terms.

10 The other aspect of this is that the police had the

11 facility of issuing press releases which may have been

12 able to galvanise evidence, and you are aware, I think,

13 already, that there's been for quite some time

14 controversy about the way in which those press releases

15 were worded. It may be helpful to look at them at this

16 stage.

17 If we look at page [15068], this is a convenient

18 compendium of them, showing date of issue, who issued

19 them and to whom and when they were issued.

20 If I just pick up the first two and a half pages of

21 this, on the first page, if we can highlight the

22 substance of the middle text.

23 First release:

24 "Two youths have been detained in hospital with head

25 injuries following a clash between rival factions in

1 Portadown around 1.45 am this morning. Police moved in

2 to separate the groups who encountered each other at the

3 junction of Thomas Street and Market Street. Bottles

4 were thrown during the hostilities and police themselves

5 came under attack by a section of the crowd. Order was

6 restored around 3 am."

7 Now, if you took the view that that wasn't a very

8 fair analysis of 20 or 30 people attacking perhaps half

9 a dozen people, one of whom subsequently died from the

10 injuries, then you may think that wasn't liable to bring

11 forward witnesses to a serious crime.

12 The second release:

13 "One of the youths injured is still detained in

14 hospital. Police at Portadown are anxious to speak to

15 anyone who was in the area of Market Street,

16 Woodhouse Street and Thomas Street between 1 am and 2 am

17 this morning, and who witnessed the incident. The

18 detectives at Portadown can be contacted on ..."

19 And it gives the number.

20 Here you have, of course, active soliciting, but you

21 still have the context that this is said to be basically

22 a punch-up between a couple of gangs in which the police

23 were involved.

24 Then "Against Enquiry only":

25 "Any response to ... allegations that police sat and

1 watched this assault and that the press statement was

2 not true?"

3 The response to be given -- and this I should say

4 appears to have been 30 April -- is over the page at

5 [15069]. As I say, this was a briefing to be given

6 against enquiry only:

7 "A police Land Rover crew in Portadown town centre

8 was alerted to a disturbance and immediately intervened

9 to gain order and prevent assaults. The numbers

10 involved, however, were such that these police officers

11 were unable to contain the situation and became

12 themselves the subject of an attack."

13 You have heard from the one officer in the

14 Land Rover who doesn't support that:

15 "Police reinforcement arrived and calm was restored.

16 "Detectives are continuing their investigations into

17 this very serious assault and disturbance and take this

18 opportunity to make a further appeal for witnesses to

19 contact them at Portadown RUC station."

20 And it gives the number.

21 As I say, it is interesting to see the date on which

22 the RUC was being defensive, or prepared to be

23 defensive, and expecting hostile queries. Quite a long

24 time before the 6 May complaint was actually made.

25 If we go down the page then, 7 May:

1 "Portadown police are renewing their appeal for

2 witnesses to a very serious assault which took place in

3 the town centre around 1.30 am on the morning of Sunday,

4 27 April.

5 "A special team was set up to investigate this

6 incident and a number of people have already been

7 interviewed. It now appears clear that four people, two

8 couples, who had left a social event in

9 St Patrick's Hall, were set upon by a large crowd. The

10 two men in the group of four were knocked to the ground

11 and viciously beaten. One young man remains very ill.

12 "On separate occasions during the incident, two men

13 approached the police. One of these men has come

14 forward and the detectives are particularly anxious to

15 speak to the second. They would also appeal to anyone

16 who was in the area of Market Street, Woodhouse Street

17 and Thomas Street between 1.00 am and 2.00 am on the

18 morning of Sunday, 27 April to get in touch with the

19 CID..."

20 And it gives the numbers:

21 "All information will be treated with the utmost

22 confidentiality."

23 That is a press release which you may think could

24 have been issued on the morning of 27 April.

25 Then we see at the bottom of that page:

1 "Victim of this sectarian attack died in

2 hospital this afternoon. A murder enquiry has now

3 commenced."

4 Then finally, at page [15070], for our purposes,

5 that top passage:

6 "Detectives at Portadown have now launched a murder

7 enquiry into the death of Robert Hamill, one of 2

8 men set upon by a crowd in Portadown town centre around

9 1.45 am on 27 April. The ACC for the region,

10 Mr Freddie Hall, tonight expressed his deep sympathy to

11 Mr Hamill's family and again called for witnesses to the

12 incident to come forward. He said, 'A special team was

13 set up last week to investigate the assault and a number

14 of people have been interviewed. We would still like to

15 hear from anyone who was in the area of Market Street,

16 Woodhouse Street and Thomas Street between 1.00 am and

17 2.00 am on Sunday 27 April to get in touch with the

18 CID..."

19 And it gives the details.

20 Then:

21 "... I can assure Mr Hamill's family that my

22 officers will be unrelenting in their search for the

23 culprits'."

24 Save for what we have seen as an almost organic use

25 of these QPFs, by which, if there was a piece of

1 information, it would be followed up by another QPF and

2 perhaps a statement, and save for those press releases,

3 my team has been unable to find any evidence of any

4 strategy for getting witnesses to come forward.

5 Indeed, for example, there was a series of

6 arrests -- we will come to arrest strategy later, but

7 a series of arrests on 6 May for grievous bodily harm,

8 and nothing in the documents shows why it was those

9 arrests were carried out, or who decided to do it and

10 why.

11 It may be that there were perfectly good strategies

12 in place for getting witnesses to come forward, and

13 translating evidence into arrests, but it certainly

14 isn't documented.

15 That leads me to the next factor which Mr Murray

16 lights upon and others have lit upon, which is the use

17 of a policy book.

18 A policy book was in fact opened on 9 May 1997, and

19 was maintained by the detective chief inspector, whom we

20 are calling P39. She left the team not many days later

21 and handed over the policy book. It fell into disuse.

22 Nobody made any further entries after she handed it

23 over.

24 We can see from it the sort of things that it should

25 have dealt with and how useful it might have been as

1 a mechanism for directing minds to what should go on.

2 We find it at page [00913]. You can see -- if we go

3 back to [00913], you can see it is a standard form

4 policy file. The offence is murder (and GBH) and

5 Robert Hamill and D. You see the senior investigating

6 officer is Detective Chief superintendent McBurney. The

7 deputy SIO is P39 and the murder inquiry commenced on

8 8 May 1997.

9 Looking at policy decision number 1, taken at

10 9.30 am on 9 May, so immediately then in the morning of

11 the day after the murder at page [00914]. The officer

12 making the decision is Detective Chief

13 Superintendent McBurney, and it's to transfer the manual

14 MIRIAM system to the computer HOLMES system. The

15 reasons -- this investigation is now the murder of

16 Robert Hamill, 25 years, and the reason is to facilitate

17 an efficient investigation. The officer making the

18 entry, we see, is P39.

19 Over the page, [00915], policy decision number 2,

20 the same day, pretty much the same time. The officer

21 making the decision is again Detective Chief

22 Superintendent McBurney, and the decision is that the

23 SIO -- and this is the murder, of course -- is

24 DCS McBurney. The deputy SIO is P39. The Office

25 Manager, so described, is Detective Inspector Irwin. Of

1 course, there is an issue of what that meant in

2 Mr Irwin's case and what role he actually took.

3 The receiver of disclosure is Detective

4 Sergeant Bradley. The HOLMES receiver, of course, is

5 the person through whom everything which comes into the

6 inquiry passes so that he can decide what action to

7 take, or allocate actions based on what revelations

8 emerge.

9 "The team of detectives carrying out the

10 investigation of GBH will now be increased by a further

11 five detectives", it says, and the reasons are:

12 "To lead, organise and carry out a thorough

13 investigation."

14 Then if we go over to [00916], policy decision

15 number 3, same day, 11 am. Detective Chief

16 Superintendent McBurney is the person making the

17 decision, and the decision is:

18 "ICPC appointed to supervise the investigation of

19 the complaint made by Miss Diane Hamill re police

20 inactivity at the scene on the early hours of

21 27 April 1997."

22 The reason for that was that there was a direction

23 received from ACC Hall. We will be hearing from

24 Mr Hall, but, of course, this is an important and

25 difficult question, the interplay between the neglect

1 complaint and the complaint -- or, rather, the

2 possibility that Mr Atkinson had colluded with Allister

3 Hanvey. We see immediately here that the ICPC is

4 involved explicitly only in the neglect complaint.

5 Over the page, decision number 4, page [00917],

6 still the same day, only 11.45 pm. In fact, that's

7 consistent. Quarter to midnight. Detective Chief

8 Superintendent McBurney is making another decision:

9 "The following will be arrested on Saturday morning,

10 10 May 1997: Stacey Bridgett, Dean Forbes.

11 "The following arrested and premises searched for

12 evidence (clothing): Wayne David Lunt, Allister Hanvey,

13 Paul Rodney Marc Hobson and Rory Robinson."

14 The reasons are:

15 "Having now obtained evidence in relation to

16 suspects involved in this crime, arrests, seizure of

17 evidence, interviews, to obtain further evidence in

18 connection with the murder."

19 Again, nobody can complain about the speed of action

20 of that decision, because this is before Tracey Clarke

21 has even signed her statement.

22 Then intriguingly, decision number 5 at page

23 [00918]. The decision -- again, it's 9 May 1997 at

24 11.50, so only 5 minutes after the decision to arrest,

25 search and interview. The officer making the decision,

1 Detective Chief Superintendent McBurney, and the

2 decision:

3 "To obtain records of incoming and outgoing

4 telephone calls in respect of E Hanvey and R Atkinson."

5 So the police snap on to it while Tracey Clarke is

6 still giving her statement:

7 "Reasons: to establish the authenticity of

8 intelligence."

9 Over at page [00919], decision number 6. The

10 officer making the decision is Detective Chief

11 Superintendent McBurney again. Decision:

12 "Two witnesses have been identified and to be known

13 as A and B.

14 "Reasons: intimidation. Ongoing reassessment

15 necessary."

16 Of course, that's consistent with what Mr Honeyford

17 has told you about checking with Mr McBurney whether

18 Timothy Jameson could be given a cipher.

19 REV. BARONESS KATHLEEN RICHARDSON: That is 9 am the

20 following morning?

21 MR UNDERWOOD: On the next morning, yes.

22 So you recall Tracey Clarke came into the police

23 station something like 11 o'clock, I think, on the 9th

24 and finished her statement in the early hours of the

25 10th. So 9 o'clock that morning, they, as it were, are

1 regularising the position that appears to have been

2 obtained overnight.

3 Decision number 7 at page [00920]. 10 May again, at

4 about 9.05 am, "Rory Robinson not located, now circulated

5 for arrest."

6 So you can see the value of a policy book because it

7 shows you the degree to which decisions which have been

8 made have been managed to be implemented.

9 Over at page [00921], at decision number 8, still

10 10 May, it's only 10.00 am. Detective Chief

11 Superintendent McBurney makes the decision. "Detective

12 Chief Superintendent to contact Mr xxxxxxxxxx, ICPC, to

13 brief him re arrests and interviews."

14 Again, nobody can complain about that. The middle

15 passage of this is "unable to contact and more efforts

16 made". The reasons, underneath:

17 "To keep ICPC appraised of developments and to give

18 them the opportunity to be present at interviews if they

19 so wish."

20 Over at [00922], decision number 9, again it's

21 a Mr McBurney decision. It's made again on 10 May by

22 3 pm. "Decision: re Constable Neill to attend Lurgan

23 station for confrontation identification." That's the

24 confrontation, you will recall, by which he identified

25 Marc Hobson.

1 It goes on:

2 "Suspect refused all other forms of identification.

3 Other police officers were not requested to attend, as

4 it was necessary to interview them re their ability to

5 identify suspects and, due to ICPC not available, the

6 interviews were not carried out."

7 Reasons:

8 "To obtain evidence by identification."

9 You will recall me asking a number of officers

10 whether they were asked to attend any form of

11 identification process, and they weren't. The only

12 identification that was carried out in any way was the

13 one confrontation by Constable Neill of Mr Hobson.

14 Obviously here you can see that minds were put to

15 the obvious which is that if other officers saw people

16 doing things, that they could usefully either attend an

17 identification parade or a confrontation, and put names

18 to faces.

19 In particular, the officer whom you have already

20 seen, who was in the Land Rover, told you candidly that

21 there were people he saw whom he could, as it were,

22 identify by face, but not by name, taken nowhere. There

23 may have been, as appears here, a good reason for not

24 doing it on a particular day: namely, that Mr McBurney

25 wanted to have interviews supervised by ICPC before that

1 happened, but it went nowhere.

2 If we go to page [00923] then --

3 THE CHAIRMAN: Just remind me. At this time PACE was in

4 force here in Ireland?

5 MR UNDERWOOD: Yes, as I understand it.

6 THE CHAIRMAN: That provides for various methods of

7 identification, does it not?

8 MR UNDERWOOD: Certainly, including the confrontation.

9 THE CHAIRMAN: It is a descending order?

10 MR UNDERWOOD: More or less last resort, but not even

11 showing mug shots -- to use the vernacular -- was

12 engaged in.

13 If we go then, page [00923] is decision number 10.

14 We are still on 10 May. It's Detective Chief

15 Superintendent McBurney. It is a decision to charge the

16 following with the offence of murder. There are five

17 here. It's Bridgett, Forbes, Lunt, Hanvey and Hobson.

18 Rory Robinson is not included in that list because, of

19 course, he hasn't yet been tracked down.

20 Reasons: "evidence to prefer the charges". Of course,

21 they had Timothy Jameson and Tracey Clarke having given

22 their statements that day.

23 Then page [00924] is decision 11, still on 10 May.

24 The decision is:

25 "Rory Robinson located. Directed that he be

1 arrested and detained for questioning to obtain evidence

2 in connection with the offence of murder."

3 You may wonder whether that was entirely fair, if

4 they had enough evidence in the witness statements of

5 Tracey Clarke and Timothy Jameson to charge.

6 Then at page [00925], decision number 12, 11 May.

7 Things move on fast. The decision-maker is Mr McBurney

8 again, and the decision is to charge Rory Robinson with

9 murder because there was evidence.

10 Then page [00926] is decision number 13 on the 12th.

11 It's Mr McBurney again and the decision is:

12 "Meeting held with ICPC."

13 This is more a memo than a decision, to be fair.

14 But those present were: a blank, a Mr Mullan,

15 Mr McBurney, Superintendent Anderson of complaints and

16 discipline, and, again, this is going to come back to

17 the question of who knew what about the question of

18 Mr Atkinson. So there's somebody from complaints and

19 discipline present. And DCI P39.

20 It goes on:

21 "Mr McBurney briefed ICPC of incident and

22 investigation so far. Mr xxxxxxxxxx outlined his role in

23 supervising the complaints made by Ms Hamill, which was

24 police inactivity at the scene."

25 So again, perfectly clear. As far as ICPC was

1 concerned, it was no part of its brief to deal with

2 Mr Atkinson. In fact, it's not clear at all whether it

3 knew about the complaint about Mr Atkinson.

4 Detective Chief Superintendent to continue with

5 murder investigation. Detective Chief Superintendent to

6 be in charge of investigating complaint. ICPC to obtain

7 copies of all documents so far in investigation.

8 The reasons:

9 "All strands of the incident are inextricably

10 linked. At this stage of the investigation it is

11 necessary to examine all strands of the incident."

12 So there will be criticism of the decision to have

13 one SIO in charge of both of those, because it allowed,

14 whether by design or otherwise, Mr McBurney to obscure

15 the question of what was going on with Mr Atkinson, and

16 also almost get it lost between the two investigations.

17 We will see how that pans out in the crime files.

18 SIR JOHN EVANS: Does Mr xxxxxxxxxx accept this log, this

19 policy book, or what's written in it?

20 MR UNDERWOOD: He's dead, I am afraid. It's one of the

21 grave difficulties in this particular difficulty in the

22 whole Inquiry is just what he was told. For example,

23 whether, if he was told enough about Mr Atkinson, he

24 could and should have gone to the Chief Constable and

25 asked the Chief Constable to refer the matter to him.

1 But we simply can't ask him.

2 SIR JOHN EVANS: There is no signature there and there is no

3 indication that xxxxxxxxxx ever saw that article.

4 MR UNDERWOOD: That is correct. Mr Mullan, on the other

5 hand, who was his assistant, will give evidence, and may

6 be able to help to a degree about what was said and to

7 whom.

8 At page [00927] then is decision number 14. The

9 decision on 13 May is a direction from the DPP, "Speak

10 to Professor Crane", and the reasons are:

11 "To establish his findings and views as to the cause

12 of death."

13 It seems a long time ago now that we heard from

14 Professor Crane and the reason why he took so long to

15 produce a report. This is the first record we have of

16 people being concerned about what was the cause of death

17 and what the Professor would say.

18 This will also have a resonance when we come to the

19 question of the Director of Public Prosecutions and his

20 role and whether there is any question properly to be

21 investigated of due diligence on the part of his office.

22 It's fair to say that his documents -- the documents

23 we have received from the DPP that is -- do not reflect

24 a direction made by the DPP at this stage. If you

25 conclude that he was giving a direction, then you may

1 well conclude that there's a a fairly close link with

2 the murder investigation from a very early stage. You

3 may, on the other hand, find that 'direction' is

4 a misnomer and this is a piece of advice or just a piece

5 of -- almost a casual interest by the DPP.

6 Over at page [00928], policy decision number 15.

7 Made on 14 May, decision by Mr McBurney, it's

8 a simulation. The next is:

9 "To seek views of ICPC regarding the asking of the

10 police officers to relocate the police vehicle at the

11 scene. To have forensic scientists present: photographer;

12 mapping; noise experts."

13 The reason is:

14 "To obtain evidence."

15 It's why I said earlier on that the question of

16 whether Mr O'Boyle was properly briefed or, indeed,

17 properly used at all goes more to the question of the

18 policing of the complaint than it does to the murder

19 investigation, and that's made good by this.

20 But you may wonder, if there was all this effort to

21 attempt to put things back where they were with

22 photographers, mapping, noise experts, relocating the

23 Land Rover, why on earth they didn't bother to do it

24 properly and have some noise, but no doubt they can tell

25 us when Mr McBurney comes.

1 Page [00929] is decision number 16. The decision is

2 "to arrest Andrew Allen (Fonzy) on 15.5.97". The

3 reason is:

4 "To interview and obtain further evidence in

5 connection with the murder."

6 It is a very interesting aspect of the matter,

7 because the one person whom Timothy Jameson named as

8 a kicker, whom Tracey Clarke did not name as a kicker,

9 is "Fonzy". It became clear quickly that "Fonzy" was

10 likely to be Andrew Allen, but he wasn't arrested until

11 this stage -- no decision was made to arrest him until

12 this stage, 14 May.

13 He was then released without charge after interview,

14 largely on the basis of a mistyping of the word "Fonzy"

15 in the statement of Timothy Jameson when it was typed

16 up. That was then carried over into the crime file in

17 which the -- when DI Irwin wrote the crime file, he

18 essentially justified the decision to take Mr Allen no

19 further because of a misidentification by name, without

20 pointing out that it was simply a typo, and also because

21 of lack of willingness to attend an identification

22 parade. It's not at all clear he was not willing to

23 attend an identification parade -- perhaps Detective

24 Inspector Irwin can tell us when he comes -- and why it

25 is that, if they were deciding to arrest a number of

1 people on the basis of these two statements, they didn't

2 immediately arrest Mr Allen.

3 In fact, what will emerge is that the only reason

4 Mr Allen was arrested was that other people subsequently

5 named him. It wasn't based on the Jameson statement,

6 and that may all shed some light on the treatment of

7 Timothy Jameson as a witness or potential defendant,

8 because, if his evidence was to be taken seriously, then

9 you might have thought that all those whom he named as

10 attackers might have been arrested on the strength of

11 it.

12 THE CHAIRMAN: Is there anything in the records to show that

13 some alternative form of identification was ever

14 considered in any of these cases?

15 MR UNDERWOOD: No, nothing at all.

16 THE CHAIRMAN: I am reminded we have been sitting now for

17 some time. Is it convenient to break off now? I'm

18 thinking of the stenographer.

19 MR UNDERWOOD: It is a matter for you. There are five more

20 pages in this policy file. We could deal with those if

21 the stenographer could bear it.

22 Very briefly then, page [00930], policy decision

23 number 17, on 15 May, "to arrest David Woods". That's

24 because he's named by Allen.

25 At page [00931], decision number 18, 15 May, the

1 decision to release Allen from police custody on bail,

2 and the reason is:

3 "Insufficient evidence to charge at present."

4 What Mr Jameson had said was that "Fonzy" had kicked

5 Robert Hamill in the face a couple of times.

6 Page [00932] is decision 19, made on 15 May. What

7 this says is to make contact with xxxxxxxxxx re

8 seeking co-operation with witnesses and the Hamill

9 family, and the reasons are:

10 "To obtain evidence for this investigation and to

11 pursue family liaison."

12 Decision number 20, on 16 May, is "to release Woods

13 from police custody" because of "insufficient evidence to

14 charge". And the final decision we have in the policy

15 file, on 17 May, is at page [00934] and that is "to

16 continue to have close liaison with Witness A" because of

17 "vulnerability of witnesses".

18 It may be no coincidence that the cessation of the

19 policy file appears to coincide with cessation of

20 activity. There's plenty of interviewing, plenty of

21 statement-making, but you may think nothing very

22 material appears after this because the evidence which

23 appears in the eyes of the police to have been the be

24 all and end all was Tracey Clarke's and

25 Timothy Jameson's, and the murder charges lasted as long

1 as their evidence did, or at least their professed

2 willingness to attend to give evidence.

3 So, although the cause of death wasn't properly

4 established, and although the forensic science materials

5 didn't emerge until much later in the year, that was the

6 case. They have got two witnesses, full stop.

7 THE CHAIRMAN: 10.30 then tomorrow morning.

8 MR UNDERWOOD: Please.

9 (4.45 pm)

10 (The hearing adjourned until 10.30 am

11 on Wednesday, 29 April 2009)

1 INDEX

2 PAGE

3 MR JOSEPH CHARLES O'BOYLE (affirmed) ............. 1

5 Examination by Mr UNDERWOOD ............... 1

7 Examination by MR ADAIR ................... 6

9 Examination by MR McGRORY ................. 9

11 Examination by MR MALLON .................. 11

13 MS RACHEL MURPHY (sworn) ......................... 18

15 Examination by MR UNDERWOOD ............... 18

17 Further examination by Mr MALLON .......... 27

19 Examination by MR GREEN ................... 28

21 Examination by MR O'HARE .................. 30

23 Submissions by MR UNDERWOOD ...................... 31

Robert Hamill Inquiry

Witness Timetable

Transcripts

Transcript

Hearing: 28th April 2009, day 40