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Hearing: 7th May 2009, day 46
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PUBLIC INQUIRY INTO THE DEATH OF
ROBERT HAMILL
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Held at:
Interpoint
20-24 York Street
Belfast
on Thursday, 7th May 2009
commencing at 10.30 am
Day 46
1 Thursday, 7th May 2009
2 (10.30 am)
3 THE CHAIRMAN: Mr Underwood, before you call your first
4 witness, we have been considering how we might be helped
5 by submissions. I think it would be helpful to us if we
6 can have in advance, in sufficient time to read them,
7 written submissions, and then we shall, of course,
8 listen to the oral submissions which are made with,
9 I hope, more enlightenment.
10 MR UNDERWOOD: Sure. We will make sure the timetable allows
11 for that.
12 In that case, may I call Mark Ardis, please?
13 THE CHAIRMAN: Yes.
14 MR MARK ARDIS (sworn)
15 Questions from MR UNDERWOOD
16 MR UNDERWOOD: Morning, Mr Ardis. My name is Underwood.
17 I am Counsel for the Inquiry. I have a very few
18 questions for you arising out of your witness
19 statement --
20 A. Okay.
21 Q. -- although it may be some others have some further
22 questions after that.
23 May I ask your full names, please?
24 A. Mark Anthony Ardis.
25 Q. May we have a look at what I hope is your statement,
1
1 which starts at page [80027] on the screen. First of
2 all, can I just ask you to keep your eyes on the screen
3 while we scroll through this document?
4 Is that your witness statement?
5 A. Yes, it is.
6 Q. Are the contents true?
7 A. Yes, they are.
8 Q. Thank you. Looking at page [80028], in paragraphs 6 and
9 7 you talk about going to the scene of the incident we
10 are concerned with on the morning of 27th April 1997.
11 At paragraph 6 you say you went to the police
12 station at Portadown, met DC Keys. In the third
13 sentence of that paragraph you say:
14 "DC Keys briefed me on the incident and told me that
15 there had been a serious assault on the main street in
16 Portadown and I was required to go and see what was
17 there."
18 Can you recall now the substance of that briefing
19 apart from what you have already told us?
20 A. No. That would be as much as I would remember of it.
21 Q. Okay. Then you go on in paragraph 7 to say:
22 "I believe I accompanied him to the scene at the
23 junction of Market Street/High Street ... I completed
24 a scene of crime incident form", which we have.
25 You set out what time you got there. We know that
2
1 the scene was taped off at, I think, 7.27 that morning,
2 so before you arrived.
3 Do you have a recollection of seeing the scene now?
4 A. I remember the town centre of Portadown, that the area
5 either side of Market Street, High Street and
6 Thomas Street and Woodhouse Street, that that was the
7 general area that was taped off.
8 Q. Presumably, you concentrated entirely on what was inside
9 the taped-off area, did you?
10 A. No. I would have had a cursory look at what was outside
11 to see if there was anything further there.
12 Q. Okay. If we go over the page to [80029], you tell us in
13 the middle paragraphs there by reference to photographs
14 things that you seized.
15 Can we move on and have a look at those photographs
16 starting at page [00230]? Towards the right-hand side
17 roughly in the centre there are chalk squares. Are
18 those your chalk squares?
19 A. Yes, they are.
20 Q. What you have said in your statement is that they refer
21 to bloodstains swabbed and seized as MAA1 and MAA2. Is
22 that correct?
23 A. Yes.
24 Q. You say you have no idea what that big stain is?
25 A. No. That was just a mark on the ground. That was
3
1 nothing that seemed untoward at the time.
2 Q. How easy was it to distinguish the bloodstains then?
3 Because we obviously can't see on this photograph
4 anything that stands out.
5 A. They would have been obvious -- I mean, blood that was
6 drying out has a significant appearance. I didn't test
7 that blood. I took it for granted that it was blood,
8 knowing it would be tested at a later date.
9 Q. Okay. Then if we go to page [00232], on the pavement
10 towards the left-hand side centre, again we see a chalk
11 square. That's another area where you took blood, is
12 it? I can refer you back to your statement, if you
13 want.
14 A. I would have to see, yes, the sketch and what I had
15 denoted that as.
16 Q. If we go back briefly to [80029] what you say in
17 paragraph 13 is:
18 "In photographs pages 232 and 234 are chalk squares
19 made by me outside of the Alliance & Leicester Building
20 Society. These are exhibits MAA3 and 4 bloodstains and
21 MAA6 and 7 broken pieces of wood."
22 A. Yes. That would have been what was marked in that
23 photograph then.
24 Q. Did you always mark a square in chalk where you picked
25 anything up?
4
1 A. It would depend on the circumstances. Sometimes the
2 photographer would have marked those with -- he would
3 have white squares or whatever, but often it was chalk
4 marks we used just to denote where something was found
5 if it wasn't clearly obvious.
6 Q. Then if we look at [00236] by cross-reference to your
7 statement -- and again, we can look at your statement,
8 if you want -- these are two Buckfast bottles you picked
9 up and fingerprinted, I think --
10 A. Yes.
11 Q. -- from the traffic island. Is that correct?
12 A. Yes.
13 Q. The only other matter I want to ask you about is the
14 timing and sequence of events here. We know that there
15 was an assault at about 1.45 or so, that it took a good
16 hour or so to restore order and get people off the
17 streets, but that the scene was not taped off until
18 about 7.27 or so.
19 In your experience, in 1997, of a public order
20 incident which involved an assault or serious assault,
21 was that a common sort of timescale between event and
22 taping-off?
23 A. I don't think that one could say there would be a common
24 timescale. It would depend on circumstances, who was
25 there, who was available to carry that out, who was in
5
1 control of the scene. So I couldn't make a clear
2 line that there would be a normal time-frame for
3 anything like that.
4 Q. Okay. Obviously I can't expect you to tell us what
5 might have gone missing between 2 o'clock in the morning
6 and 10 o'clock in the morning, but can you help us on
7 this, though, in case it helps the Panel: we know that
8 between about 3 o'clock in the morning and about 7.30,
9 when the scene was taped off, there were officers at the
10 scene and the area was closed to vehicles, because the
11 barriers were up.
12 A. Uh-huh.
13 Q. Would you have expected significant contamination during
14 that period in those circumstances?
15 A. Contamination of what specifically?
16 Q. Of the scene, other people tracking new material in, or
17 taking, as it were, exhibits out?
18 A. That would very much depend on the weight of traffic, of
19 people or whatever that were there, who they were, how
20 aware -- you know, if it was police, one would hope they
21 would be forensically aware enough for that not to be
22 the case, but if the general public were there, then you
23 just could not say whether items -- some of those items
24 then possibly could have been deposited there post the
25 incident.
6
1 Q. It all depends?
2 A. Yes.
3 MR UNDERWOOD: Thank you very much. Those are the only
4 questions I have. As I say, other people may have some
5 more. Thank you.
6 MR FERGUSON: No questions.
7 MR ADAIR: No questions.
8 Questions from MR McKENNA
9 MR McKENNA: Just one or two matters. Mr Ardis, you were
10 the duty SOCO on that weekend. Is that right?
11 A. Yes.
12 Q. You were the only officer on, as I understand it?
13 A. For that specific area, yes.
14 Q. Do I take that to mean you were on 24-hour call? Would
15 that be correct?
16 A. The norm would have been to be on duty actually in my
17 office from 9.00 to 5.00 and the rest of the hours would
18 have been on an on-call basis.
19 Q. You have told the Inquiry that you arrived at the scene
20 around 10.00 am.
21 A. Yes.
22 Q. How long would it have taken you to arrive at the scene?
23 A. You mean from I was first called?
24 Q. Yes.
25 A. It would have taken me probably at least an hour to get
7
1 to my office, then to gather up whatever equipment was
2 required of me and on to Portadown station, perhaps
3 another half hour.
4 Q. So we can take it you were called around about 8.30 in
5 the morning?
6 A. I can't recall exactly. Whatever my notes say, yes.
7 Q. Would that be a reasonable proposition, given the
8 time-frame you have just told us about?
9 A. Yes. To get there and to get to the station and then
10 a briefing. I honestly can't recall whether the
11 photographer -- whether we had to wait for him to arrive
12 or whether he met us at the scene. I can't remember
13 that, but that may have been another reason that we
14 all -- very often, we would decide to go together,
15 because at a scene there is little that I can do or
16 remove from the scene, package or whatever, until the
17 items have been photographed in situ.
18 Q. But you certainly don't recall being called out in the
19 early hours of the morning?
20 A. No, I wasn't. That was my first call.
21 Q. Can you assist us, Mr Ardis, with best practice in
22 regards to scene preservation?
23 Wouldn't the ideal or the objective perhaps be to
24 have a crime scene, where it has been identified, sealed
25 off as soon as possible?
8
1 A. Yes.
2 Q. And thereafter to have SOCO attend that crime scene
3 again as soon as possible?
4 A. Yes.
5 MR McKENNA: Thank you.
6 MS DINSMORE: No questions.
7 MR UNDERWOOD: Nothing arising. Thank you very much.
8 THE CHAIRMAN: Thank you. You are free to go.
9 MR UNDERWOOD: Mr Ardis, thank you very much for coming.
10 (The witness withdrew)
11 MR UNDERWOOD: Mr Macauley, please.
12 MR ROBERT JOHN BRIAN MACAULEY (sworn)
13 Questions from MR UNDERWOOD
14 MR UNDERWOOD: Morning, Mr Macauley.
15 A. Morning.
16 Q. My name is Underwood. I am Counsel to the Inquiry. It
17 is my task to ask questions primarily. Other people may
18 have some supplemental ones after that.
19 May I ask your full names, please?
20 A. Robert John Brian Macauley.
21 Q. We have what I hope is your witness statement. Perhaps
22 we can have a look on screen at page 81770. If you
23 wouldn't mind looking at the screen while we scroll
24 through the four pages of that -- five pages of that,
25 rather.
9
1 THE CHAIRMAN: 81770.
2 MR UNDERWOOD: Let me give you a hard copy of it?
3 A. I have a copy.
4 Q. Thank you very much. Are the contents of it true?
5 A. Yes, they are.
6 Q. Thank you very much. I want to, if the technology
7 permits us, get you to look at the Police
8 (Northern Ireland) Order 1987, which I hope will be at
9 page [73303]. Can I just track through with you
10 a reading of it to see whether you agree that this was
11 what obtained in 1997?
12 A. Right.
13 Q. If we start with the interpretation section, Section 2,
14 subsection (2), it says:
15 "In this order 'the appropriate authority' means:
16 "In relation to a senior officer, the Police
17 Authority; and
18 "in relation to any other member of the police
19 force, the Chief Constable."
20 Then it defines "the Commission" as "the Independent
21 Commission for Police Complaints for Northern Ireland."
22 A. Correct.
23 Q. We see that this order, in fact, establishes the ICPC at
24 paragraph 3.
25 A. Correct.
10
1 Q. The starting point then is that in relation to the
2 things that this order deals with, the appropriate
3 authority is either the Police Authority -- and that's
4 in the case of senior officers -- or the Chief Constable
5 himself.
6 A. That's correct.
7 Q. Then if we look at paragraph 4 of it, "Preliminary
8 handling of complaints by Chief Constable":
9 "(1) Where a complaint is submitted to the Chief
10 Constable, it shall be his duty to take any steps that
11 appear to him to be desirable for the purpose of
12 obtaining or preserving evidence relating to the conduct
13 complained of."
14 A. Yes.
15 Q. "(2). After performing the duties imposed on him by
16 paragraph (1), the Chief Constable shall determine
17 whether he is the appropriate authority in relation to
18 the member of the police force against whom the
19 complaint was made."
20 In other words, where a complaint crops up, the
21 first thing that a Chief Constable has to do is make
22 sure the ring is held, if you like.
23 A. Yes.
24 Q. Then he has to decide whether he is the appropriate
25 authority.
11
1 A. Yes.
2 Q. Then if we go on to paragraph 5, [73305]:
3 "(1). If the Chief Constable determines that he is
4 the appropriate authority in relation to a member of the
5 police force about whose conduct a complaint has been
6 made and who is not a senior officer, he shall record
7 it.
8 "(2). After doing so, he shall consider whether the
9 complaint is suitable for informal resolution and may
10 appoint a member of the police force to assist him."
11 A. Correct.
12 Q. If he is the appropriate authority, he records it?
13 A. Yes.
14 Q. The next step is to work out whether this can be sorted
15 out informally?
16 A. Yes.
17 Q. If we go over the page [73306] to sub-paragraph (3):
18 "If it appears to the Chief Constable that the
19 complaint is not suitable for informal resolution, he
20 shall appoint a member of the police force, or a member
21 of another United Kingdom police force, to investigate
22 it formally."
23 So unless he decides it can be dealt with
24 informally, he must appoint somebody to investigate the
25 complaint. Is that it?
12
1 A. Yes.
2 Q. Then if we go to paragraph 7 on [73308], if we can
3 highlight 7 and 8 -- that's fine -- looking at
4 paragraph 7:
5 "(1) where the appropriate authority" -- assume it
6 is the Chief Constable for the moment -- "decides under
7 Article 5(3) or (5) or Article 6(3) to appoint a member
8 of the police force, or member of another United Kingdom
9 police force, to investigate a complaint, the
10 appropriate authority shall refer that complaint to the
11 Commission."
12 So, in other words, assuming the Chief Constable
13 decides that he is the appropriate authority, assuming
14 he can't deal with the matter informally and, therefore,
15 is bound to appoint someone to investigate, he is also
16 then bound to refer to the matter to the ICPC?
17 A. Yes.
18 Q. Then if we look at sub-paragraph (2), it just deals with
19 the period in which that has to be referred.
20 Then paragraph 8:
21 "(1). The appropriate authority may refer to the
22 Commission any matter which:
23 "Appears to the appropriate authority to indicate
24 that a member of the police force may have committed
25 a criminal offence or an offence against discipline; and
13
1 "Is not the subject of the complaint,
2 "If it appears to the appropriate authority that it
3 ought to be referred by reason:
4 "of its gravity; or
5 "of exceptional circumstances."
6 So this is dealing with something that comes to the
7 attention of the Chief Constable, but is not a complaint
8 and in this case he may refer it to the ICPC, if it
9 appears to him that -- because of its gravity or its
10 exceptional circumstances.
11 A. Certainly.
12 Q. Those are the two routes by which the Chief Constable
13 must or may --
14 A. Yes.
15 Q. Thank you.
16 Now, if we look to see what happens the other way
17 round from the ICPC's point of view and we look at
18 paragraph 9, [73309], headed "Supervision of
19 Investigations by Commission":
20 "(1). The Commission shall supervise the
21 investigation:
22 "of any complaint alleging that the conduct of
23 a member of the police force resulted in the death or
24 serious injury to some other person..."
25 Just pausing there for the moment, if the Chief
14
1 Constable refers a complaint, as opposed to another
2 matter --
3 A. Yes.
4 Q. -- so something he is bound to refer, and the complaint
5 alleges that the conduct of the member of the police
6 force resulted in death or serious injury, the ICPC has
7 no choice, it must supervise?
8 A. Mandatory.
9 Q. Unless you need to look at anything else, if we jump
10 down to sub-paragraph (3) there:
11 "The Commission may supervise the investigation:
12 "of any complaint the investigation of which it is
13 not required to supervise under paragraph (1); and
14 "of any matter referred to it under Article 8(1)."
15 So if I can summarise this, the things that the
16 Commission may, but not must, supervise are the less
17 serious complaints and other matters which the Chief
18 Constable has referred in his discretion?
19 A. That's right.
20 Q. Thank you very much. That's what happened in practical
21 terms, was it in, in 1997?
22 A. That's correct.
23 Q. That's very helpful. Thank you. If we can go back then
24 to your witness statement, which is at page 81770. We
25 are not going to see it on the screen?
15
1 A. I have a copy.
2 Q. In paragraph 4, you tell us:
3 "My role as the 'Superintendent New Complaints' was to
4 receive and process all new complaints made against
5 officers within the RUC. I was responsible for the
6 recording and allocation of complaints to
7 investigating officers. An investigating officer
8 would be at least two ranks above the officer the
9 subject of complaint."
10 What I want to ask you about generally is how it was
11 that something would qualify as a complaint; in other
12 words, did a member of the public have to do anything
13 formal in order to bring it to your attention and to
14 have it registered as a complaint?
15 A. Yes. He could bring it personally to the attention of
16 the police by calling at an RUC station and making
17 a complaint and making a statement, or he could do it by
18 way of intervention by a solicitor.
19 Q. We know here, of course, that your only practical
20 concern with the matters we are looking at was the
21 treatment of a formal complaint made by a solicitor on
22 behalf of the Hamill family?
23 A. That's correct.
24 Q. I think you know also about the allegation that cropped
25 up against Mr Atkinson, that he tipped off
16
1 Allister Hanvey.
2 Never mind how that was treated for the moment. If
3 there had not been the initial complaint here -- imagine
4 that the police are simply investigating a crime and, in
5 the course of a crime, a piece of material comes up to
6 draw to their attention the possibility that a police
7 officer has committed a crime, but there is no
8 complaint.
9 A. Yes.
10 Q. How would that have been dealt with?
11 A. That would have been dealt with through the internal
12 discipline section.
13 Q. G Section?
14 A. In G Department. That's right.
15 Q. Would this be fair, that something only amounted to
16 a complaint if the person bringing it to your attention
17 intended the force to do something about it? Would that
18 be fair?
19 A. That's fair, yes.
20 Q. You tell us -- for reference it is at paragraph 7 of
21 your statement:
22 "On receipt of a complaint, it would be recorded on
23 a form 17(2) and recorded in a register."
24 A. Correct.
25 Q. You go on to tell us what follows from that. It is
17
1 given a unique number. It is dealt with in the
2 computer. As it were, a 'resolve by' date is given, and
3 you go on to appoint an IO, etc.
4 A. That's right.
5 Q. So that's the solid, secure process that flows from
6 a complaint?
7 A. It is.
8 Q. Where you have something which, as you say, would be
9 treated by G department as an internal matter, because
10 it comes to your attention --
11 A. Yes.
12 Q. -- rather than it is the subject of a complaint, what
13 would happen there?
14 A. If a complaint was already under investigation, not
15 particularly connected with the matter you now speak of,
16 it would possibly, and probably, be taken on board in
17 that investigation without further reference back unless
18 there was something peculiar about that.
19 Q. So you would expect the same IO to be involved, would
20 you?
21 A. I would.
22 Q. But what if there was not an existing complaint then?
23 So something out of the blue comes to your attention.
24 A. That has to be referred to the G Department. If there
25 was not an existing complaint, then that should have
18
1 been referred.
2 Q. Assume then, as I say, in this case, police
3 investigating a crime come across some information in
4 the course of that that suggests that a police constable
5 has committed a serious offence. That has to be
6 transmitted to G department in some way?
7 A. That's my view.
8 Q. What would then happen, as far as G department is
9 concerned? Would they instigate a complaints process on
10 their own or what?
11 A. No, they would not investigate a complaint
12 investigation. They would start an investigation about
13 that matter.
14 Q. Would that bypass this system of yours of the form
15 17(2), the unique reference number, etc?
16 A. It would.
17 Q. Can I get you to look at what, in fact, was given out to
18 Mr McBurney here as a result of your taking on board the
19 complaint? It is at page [63695]. Form completed in
20 manuscript.
21 A. Yes.
22 Q. Unhelpfully, the page has folded just where the
23 signature is. I don't know whether it is yours.
24 A. It is not. I didn't, in fact, process this complaint.
25 It was a colleague of mine.
19
1 Q. Right. If we just track down through it, it is directed
2 to Chief Superintendent McBurney?
3 A. Yes.
4 Q. "Reference above complaint", and this is the neglect
5 complaint we are talking about, that the officers did
6 not get out of the Land Rover.
7 A. Yes.
8 Q. You are appointed investigating officer.
9 A. Yes.
10 Q. "Assistant investigating officers are
11 Superintendent Anderson and Chief Inspector Bradley."
12 A. Yes.
13 Q. We know they were from G Department.
14 A. That's correct.
15 Q. Would that be commonplace?
16 A. That they were appointed as assistants?
17 Q. Yes.
18 A. Yes, it would be, because they had some experience of
19 the G department system that Mr McBurney may not have
20 had.
21 Q. Then if we go down to 2:
22 "If in doubt as to action, seek the advice of
23 Superintendent Complaints & Discipline."
24 That is, in fact, as it turned out, Mr Anderson
25 A. Yes.
20
1 Q. "3. Attached are:"
2 A number of things:
3 "(b) Form 17(2)."
4 Then at 4:
5 "The ICPC."
6 There are boxes for "must" or "may". This is at
7 (b):
8 "May supervise the investigation (the Commission's
9 decision regarding the supervision will be notified to
10 you when known)."
11 Was there any controversy about that? Because this
12 was a complaint of neglect of four police officers in
13 a Land Rover who it was said could have prevented
14 a murder.
15 A. Well, it depends how "serious" was interpreted, as we
16 have heard about the mandatory supervision.
17 Q. To be fair, the complaint was made on 6th May.
18 Mr Hamill's tragic death did not occur until the 8th.
19 Could that be an explanation for it?
20 A. I think it may very well be.
21 THE CHAIRMAN: This reads, doesn't it, as though the
22 Commission has already been notified of the neglect
23 complaint and their decision whether or not to intervene
24 is awaited?
25 A. That's correct. I think they were notified on the 8th.
21
1 MR UNDERWOOD: Then we have paragraph 5, which tells
2 Mr McBurney what he has to do.
3 A. Yes.
4 Q. "(a). Prepare a file for the Director of Public
5 Prosecutions which must be submitted ... not later than
6 8 weeks before summary proceedings become statute barred.
7 "(b). Prepare (i) a discipline file for the
8 Commission.
9 "(ii) a discipline file for Assistant Chief
10 Constable 'G'."
11 Is the reasoning for that, in fact, as with many
12 such investigations, they are two-pronged? Firstly, you
13 look at crime, and, secondly, you look at the
14 disciplinary aspect?
15 A. Disciplinary aspect, yes.
16 Q. Then if we go to 7:
17 "See overleaf regarding IMMEDIATE preparation and
18 service of form 17(3).
19 "Also code appendix ..."
20 It gives details. Then it sets out the statute
21 barred date.
22 A. Yes.
23 Q. If we go over the page [63696], there is
24 this form headed "Form 17(3)" and it deals with
25 Caution 1, Caution 2 and Caution 3.
22
1 A. Yes.
2 Q. Can I just pick up the first three paragraphs for the
3 moment, (a), (b) and (c)?
4 A. Yes.
5 Q. This was telling Mr McBurney:
6 "(a). The legal requirement that the member subject
7 to investigation is served with this form as soon as
8 practicable is to be interpreted as meaning that the
9 member is served with the form WITIHIN DAYS of the IO
10 receiving Assistant Chief Constable G's directive to
11 investigate the matter, unless to do so would prejudice
12 his or any other investigation of the matter."
13 So that's the qualification, is it? He has to do it
14 really fast unless it is likely to prejudice the
15 investigation?
16 A. That's right. I think ten days is mentioned somewhere.
17 Q. Then:
18 "(b). The IO will personally serve the original
19 form 17(3) (Caution 1) on the member and have him
20 acknowledge receipt on the copy of the form."
21 So, despite the fact that the 17(3) is, as it were,
22 the disciplinary caution, it is the IO's -- in this case
23 Mr McBurney's -- obligation to do the service?
24 A. It is.
25 Q. Finally on this:
23
1 "(c) a further Form 17(3) (Caution 1) should be
2 served as and when fresh criminal/discipline matters
3 arise during the course of the investigation. If it is
4 established at any stage during the investigation that
5 a member is no longer the subject of that investigation,
6 the IO will inform him of that fact in writing."
7 So was this the process then: that a complaint comes
8 in, it is decided through all the processes we looked at
9 in the order that the Chief Constable is the appropriate
10 authority. An investigation will commence under
11 a police officer. Mr McBurney in this case is appointed
12 that police officer.
13 A. Yes.
14 Q. The directions are given to him, including this, and --
15 was this sub-paragraph (c) put into effect in practice?
16 I don't mean by Mr McBurney in this case; I mean in
17 general terms.
18 A. I think it was, yes. Yes, I think it was.
19 Q. To take a silly example, if you were investigating
20 a constable for, I don't know, dangerous driving, and in
21 the course of that information emerges that he is
22 a serious drugs dealer, that would trigger this
23 obligation?
24 A. It would. In my view, it would.
25 Q. We are asking you for your help here. I am grateful for
24
1 your views.
2 That deals with the 17(3) side of it. What it does
3 not deal with is what would happen in terms of the ICPC.
4 Let's assume that, as I say, to take my example, you
5 have a reckless driving allegation against an officer.
6 The ICPC has been given the option to supervise it and
7 it has accepted that.
8 In the course of that, the IO then discovers some
9 information to the effect that the constable has
10 committed a really serious but utterly unconnected
11 offence. His obligation is to serve a 17(3), if it is
12 practicable.
13 A. Yes.
14 Q. But what happens about the ICPC's supervision in those
15 circumstances?
16 A. Well, the ICPC send out a standard letter to the
17 investigating officer stating that all significant
18 events regarding the investigation should be brought
19 immediately to their attention, as I recall.
20 Q. Uh-huh.
21 A. So that's what would happen in practice, or should
22 happen.
23 Q. We know, to be fair to Mr McBurney, he did.
24 A. I think he had a meeting on the 12th, perhaps, with --
25 Q. He did indeed. Again, we are asking for help --
25
1 A. Yes.
2 Q. -- because, very sadly, a number of the people involved
3 have died.
4 A. I know.
5 Q. On this point, Mr xxxxxxxxxx as well as Mr McBurney.
6 A. Yes.
7 Q. So we just don't know why it was Mr xxxxxxxxxx didn't
8 pick up the baton on 12th May.
9 A. Yes.
10 Q. What would have been the normal expectation following,
11 as you say, that standard letter and somebody like
12 Mr McBurney following it and telling the ICPC of the new
13 revelation?
14 A. I would expect that the supervisor would give certain
15 directions on how Mr McBurney was to proceed or agree
16 with the procedures that he was proceeding with.
17 Q. The reason I started off by taking you laboriously
18 through the order, the force order, is that this seems
19 to fall through the gap, doesn't it, because, in 1997,
20 the ICPC could not self-refer?
21 A. No.
22 Q. The only way in which a new allegation emerging in the
23 course of an investigation could get to the ICPC within
24 the order --
25 A. Yes.
26
1 Q. -- is for the Chief Constable to refer it as one of
2 these matters which he had a discretion to refer.
3 A. Right.
4 Q. Is that fair?
5 A. That's fair.
6 Q. Can you think of any other way in which that could have
7 happened?
8 A. In this case, I expect that if it hadn't been
9 supervised, it was unlikely it would have come to the
10 notice of the ICPC.
11 THE CHAIRMAN: So if you take, for example, a police officer
12 who is alleged to have committed a serious burglary --
13 A. Yes.
14 THE CHAIRMAN: -- and there is no other disciplinary matter,
15 and so he is arrested and may be charged --
16 A. Yes.
17 THE CHAIRMAN: -- that's not automatically going to be
18 referred to the Commission. Is that so?
19 A. No, that seems to me an internal matter of discipline
20 rather than a complaint, unless you are referring to
21 a complaint about that burglary.
22 THE CHAIRMAN: But, of course, if he is already the subject
23 of a quite unconnected complaint --
24 A. Yes.
25 THE CHAIRMAN: -- then the burglary allegation will be put
27
1 with that and then it must go to the Commission?
2 A. That's correct. It arises in the course of the
3 investigation of the minor matter.
4 THE CHAIRMAN: It seems rather odd, but that's the position?
5 A. Yes.
6 MR UNDERWOOD: The mechanism for that would have been that
7 it would have been referred by the Chief Constable to
8 the Commission as a new matter arising, and presumably
9 the Commission would have had the option whether to take
10 it up?
11 A. Yes.
12 Q. Now, as I say, we know perhaps as a result of the
13 standard form letter, but certainly as a result of the
14 meeting of 12th May, that Mr McBurney did, in fact, tell
15 the ICPC about this new matter.
16 A. I understand that now, yes.
17 Q. I want to just ask one other matter about this, which is
18 where G Section stood, because we also know that
19 G Section -- sorry -- G Department was told about the
20 new matter.
21 Would you have expected G Department to have brought
22 it to the attention of the Chief Constable so that the
23 Chief Constable could make the referral to the ICPC?
24 A. I am not certain about that, because the ICPC at this
25 stage already knew about it, I gather from what you are
28
1 saying about the meeting with Mr xxxxxxxxxx.
2 Q. Yes.
3 A. So they were aware of it.
4 Q. Yes. What I am getting at -- let me go back so I get
5 this entirely clear.
6 A. Yes.
7 Q. It comes back to this force order. Because the ICPC
8 could not self-refer, the only way in which they could
9 supervise the new allegation is if the new allegation
10 was the subject itself of a referral as a matter within
11 the Chief Constable's discretion.
12 A. Yes.
13 Q. Of course, the Chief Constable can't do that unless
14 somebody tells the Chief Constable.
15 What I am asking you here is: who would have been
16 expected to tell the Chief Constable of the new matter?
17 Would that have been G department?
18 A. I haven't come across that. I just can't say.
19 Honestly, I can't say.
20 Q. Right.
21 THE CHAIRMAN: So someone ought to have done, but who
22 should --
23 A. That's the question.
24 THE CHAIRMAN: -- you can't help?
25 A. I am sorry. I can't help.
29
1 MR UNDERWOOD: This is no criticism of you or the RUC. It
2 may well be that this situation had never arisen before.
3 Obviously the ICPC had thought it might, hence its
4 standard letter.
5 A. Yes, yes.
6 Q. If we have to ask other people about what happened in
7 practice, then, of course, we will. Your evidence is
8 that you have no feeling for what the standard practice
9 would or should have been?
10 A. I haven't. I haven't.
11 Q. One other matter I want to ask about this is the
12 form 17(3).
13 A. Yes.
14 Q. Now, of course, one acknowledges that when the
15 allegation against Mr Atkinson arose, it may have been
16 impractical to serve a 17(3) in relation to that,
17 because it may have prejudiced the investigation.
18 A. Yes.
19 Q. But we know that in September 1997 Mr McBurney
20 interviewed Mr Atkinson and put to him in interview the
21 allegation --
22 A. Yes.
23 Q. -- to get him to deal with it.
24 Would it have been the proper practice to have
25 served the form 17(3) at that stage?
30
1 A. I think it would have been, yes, to make the
2 investigated officer aware of what he was being
3 investigated about.
4 MR UNDERWOOD: That's extremely helpful, Mr Macauley. Thank
5 you very much. Those are my questions.
6 As I say, others may have some more.
7 MR FERGUSON: No questions. Thank you.
8 THE CHAIRMAN: Yes, Mr Adair?
9 Questions from MR ADAIR
10 MR ADAIR: Now, Mr Macauley, I want to just deal with a few
11 general matters, if I may, and perhaps deal with
12 a couple of specifics just in relation to this.
13 A. Right.
14 Q. Now, in relation to this particular case, we know that
15 there had been a complaint of neglect made.
16 A. Yes.
17 Q. Okay? Just to set the scene.
18 A. Yes.
19 Q. It appears that initially it was dealt with on
20 a discretionary basis, and then, when the formal
21 complaint was made, changed from Article 7 to Article 8.
22 A. Yes.
23 Q. Right.
24 A. I get the impression from the papers that the referral
25 was made on the 8th and the regulation -- Article 5
31
1 complaint was forwarded on the 9th. So the referral
2 came the day before the --
3 Q. I understand.
4 A. Yes.
5 Q. As I understand it then, just to summarise the position,
6 at that stage, G department, Complaints &
7 Discipline --
8 A. Yes.
9 Q. -- they become involved from Gough Barracks.
10 A. Yes. They received a letter of complaint.
11 Q. The Head of Complaints & Discipline at that time in
12 Gough Barracks was Chief Superintendent Anderson?
13 A. Superintendent Anderson, yes.
14 Q. Was it Superintendent?
15 A. Yes, yes.
16 Q. So he was the head of the department in Gough Barracks?
17 A. He was, yes.
18 Q. Both Superintendent Anderson and -- was it
19 Chief Inspector Bradley --
20 A. Bradley.
21 Q. -- were appointed to assist --
22 A. Yes.
23 Q. -- and advise Chief Superintendent McBurney in relation
24 to the neglect allegation?
25 A. That's correct.
32
1 Q. Now, we also know that then, as a result of a witness
2 statement made by Tracey Clarke, an allegation of
3 criminal conduct was made against Constable Atkinson.
4 A. I understand that's the case.
5 Q. That's on 9th May.
6 A. Right.
7 Q. Now, can you -- you have told us, I think -- my
8 understanding of your interpretation of the order is
9 that that would not be regarded as a complaint within
10 the definition of complaint, because it wasn't the
11 person's intention to make a complaint. Is that right?
12 A. That's correct, yes.
13 Q. Does the order say anything about intention or whether
14 that's required in relation to whether an allegation
15 such as this should be treated as a complaint?
16 A. I can't help you there. I don't know.
17 Q. Well, whenever you told us about intention, is that
18 something just that is your own thoughts on it or was
19 that something that you --
20 A. No, it is not something that I was particularly aware
21 of, the intention aspect of it.
22 Q. I am not suggesting that you are wrong.
23 A. No, no.
24 Q. I am just wondering why it was that you mentioned the
25 intention. There is nothing anywhere we can look at
33
1 which says, before a complaint is to be treated as
2 a public complaint, that intention has to be part of it.
3 There is nothing --
4 A. No.
5 Q. Okay.
6 THE CHAIRMAN: I suspect this was quite an unusual
7 combination of circumstances.
8 MR ADAIR: Yes, I think so, sir.
9 THE CHAIRMAN: It wasn't such as would have necessarily
10 recognised or established a practice. So it comes back
11 to construing as a matter of law the regulations.
12 MR ADAIR: I think that's right, sir. I just wondered if
13 there was something somewhere that gave guidance on
14 interpretation of the document.
15 THE CHAIRMAN: You may have a practice which does not
16 strictly accord with the regulations, but one cannot say
17 there was such a practice here.
18 MR ADAIR: Absolutely. I am not, sir. I am simply
19 enquiring at the moment, sir.
20 THE CHAIRMAN: Yes, of course.
21 MR ADAIR: In any event, it would appear this was not
22 treated as a complaint in the terms of a public
23 complaint and you think that was a reasonable way to
24 approach it by all involved?
25 A. I think it was taken as a continuance of the complaint,
34
1 albeit the previous complaint was of a relatively minor
2 matter in comparison to the one that followed.
3 Q. Now, we know that by 12th May, which is the first note
4 we have relating to a meeting between various
5 officers --
6 A. Yes.
7 Q. -- that not only were Superintendent Anderson and
8 Chief Inspector Bradley involved from Complaints &
9 Discipline, but the ICPC were also involved in the form
10 of Mr xxxxxxxxxx and Mr Mullan.
11 A. (Witness nods).
12 Q. Can you tell us, was Mr McBurney right in telling, first
13 of all, Complaints & Discipline about this further
14 allegation that had been made concerning
15 Constable Atkinson, even though they were only there,
16 strictly speaking, to supervise the complaint relating
17 to the neglect of duty? Did he do the right thing?
18 A. I certainly think he did, yes.
19 Q. So he made G department, Complaints & Discipline,
20 aware that in the overall picture there was not just the
21 neglect allegation, but now this criminal allegation
22 being made against Constable Atkinson?
23 A. Yes.
24 Q. That was the right thing to do?
25 A. I certainly think so.
35
1 Q. Was he also right in, as we know he did from the
2 documentation, informing the ICPC of this allegation,
3 even though, strictly speaking, they were there in the
4 role of supervising the neglect of duty allegation?
5 A. I think he was correct.
6 Q. So he did the right thing again?
7 A. I certainly think so.
8 Q. Now, just pausing there for a moment, I take it you knew
9 Mr xxxxxxxxxx and you knew Mr Mullan?
10 A. I knew Mr Mullan and I knew Mr xxxxxxxxxx from previous
11 practical experience in the operational field.
12 Q. Do you know the expression "behind the door"?
13 A. Please explain.
14 Q. Let me put it to you a different way. If Mr xxxxxxxxxx
15 thought that anything was being done or not done by
16 Mr McBurney, would he have had any hesitation in making
17 his views known?
18 A. Certainly not.
19 Q. I don't know whether it is a recognised expression
20 beyond these shores, but he wasn't "behind the door" in
21 making his feelings known?
22 A. He certainly was not.
23 Q. If Mr xxxxxxxxxx had thought that Mr McBurney was doing
24 or not doing anything in relation to Constable Atkinson
25 that he should have been doing, he would not have
36
1 hesitated in going to the Chief Constable's office and
2 letting them know?
3 A. Absolutely not.
4 Q. He was an old-fashioned, objective, dedicated man that
5 wanted to make sure that things were done properly,
6 wasn't he, Mr xxxxxxxxxx?
7 A. I think that's a fair description.
8 Q. And Mr Mullan himself, if he had thought equally from
9 your knowledge of him that anything was either being
10 done or not being done by Mr McBurney in relation to the
11 Atkinson allegations, again would he have had any
12 hesitation in going to the Chief Constable's office?
13 A. None whatsoever.
14 Q. I mean, as we know, one can have statutes and orders and
15 formal procedures, but can you just help the Panel?
16 You knew both these men?
17 A. I did.
18 Q. Leaving aside for a second formal procedures and
19 documents. If they had thought for one second that
20 anything was not being done properly, there would be
21 correspondence and memos and letters to the Chief
22 Constable coming through these screens at us?
23 A. Absolutely.
24 Q. Just to put it in a specific term, if, for example,
25 Mr xxxxxxxxxx or Mr Mullan had thought, as maybe they
37
1 should have thought, that this was a matter that should
2 have been supervised by the ICPC, they would have gone
3 to the Chief Constable and told him?
4 A. Very much so, yes.
5 Q. We know that, in fact, they took the view that it was
6 outside their remit?
7 A. I didn't realise that.
8 Q. If we could just put up page [27209], please, this,
9 I think we will hear in due course, is a handwritten
10 note from Mr Mullan, we think to Mr xxxxxxxxxx.
11 A. Right.
12 Q. If we just highlight from the words:
13 "The investigation team ..."
14 Do you see about halfway down the page?
15 A. Yes, I see it, yes.
16 Q. If you just highlight that, please. Just go up a wee
17 bit, please. Sorry, if we could go out again. Thanks.
18 I think we are able to read it. Thank you. We can see
19 the note advises -- this is in September:
20 "The investigation team intend to re-interview
21 Constable Atkinson re his alleged involvement with
22 Hanvey. On your behalf I advised that this aspect was
23 outside the Commission's remit."
24 So it would appear that the advice being received
25 was that this was outside the Commission's --
38
1 A. Yes, that would appear to be the case, yes.
2 Q. I am just wondering what your own views are,
3 Mr Macauley.
4 We know that a serious allegation had been made
5 against Constable Atkinson. Are you aware of the
6 details of it, incidentally?
7 A. I am not. I know nothing of that whatsoever.
8 Q. Take it from me it is a pretty serious allegation.
9 A. I know in broad outline what it is about.
10 Q. The allegation -- I'll put it in a sentence -- is that
11 he tipped off a suspect to get rid of his clothes, the
12 implication being in case there was some forensic
13 evidence on them. There is the death of a man, so it is
14 a pretty serious allegation.
15 A. Very serious.
16 Q. I am just wondering, should the ICPC maybe have taken
17 over and got in touch with the Chief Constable and said,
18 "Look, we should be supervising this".
19 I am just wondering what your thoughts are.
20 A. My view is they should and I am surprised at the last
21 paragraph.
22 Q. I mean, Mr McBurney had brought it to their attention.
23 A. Yes.
24 Q. And that appears to be the end of it essentially, as far
25 as they are concerned.
39
1 A. Yes.
2 Q. We also know -- and I just want to ask you about this,
3 and, again, I am not being critical. Hindsight is
4 a wonderful thing.
5 We know that the head of G department was also aware
6 on 12th May of this allegation. We know, as
7 I understand from your Inquiry statement, that it
8 wouldn't have been your responsibility to refer
9 complaints. That would normally be done by the head of
10 Complaints & Discipline. Isn't that right?
11 A. Refer for what purpose?
12 Q. For Article 8 complaints.
13 A. That's correct, yes. That's correct.
14 Q. I am just wondering, Mr Bradley and Mr Anderson, having
15 been informed by Chief Superintendent McBurney of this
16 serious allegation --
17 A. Yes.
18 Q. -- should they perhaps have referred it further and
19 said, "We also want to be involved in this and we are
20 going to take this up to the Chief Constable" and that
21 sort of ...?
22 A. I think they may very well -- they could have done that,
23 yes, but they may have taken the view that because the
24 supervisor, ICPC, were involved and knew about it,
25 that they were quite happy to let them take it forward.
40
1 Q. Well, they were not involved. They knew about it.
2 A. True. They knew about it.
3 Q. So you think that the head of Complaints & Discipline,
4 having been informed about it, should just have been
5 satisfied that because he knew that ICPC were aware of
6 it, that that was sufficient?
7 A. That may have been the view that was taken, but with
8 hindsight --
9 Q. Again, I know hindsight is a wonderful thing.
10 A. With hindsight it may have been preferable to pass it
11 up, yes.
12 Q. Again, looking back with hindsight, this really should
13 have been referred by C&D up the chain of command?
14 A. It probably should, yes. At least make them aware of
15 the significant development arising from the original
16 neglect of duty complaint.
17 MR ADAIR: Thank you very much.
18 THE CHAIRMAN: Just help me with this. The ICPC was formed
19 partly to ensure public confidence by not letting it
20 appear that the police policed their own --
21 A. That's correct.
22 THE CHAIRMAN: -- which all suggests that a serious matter
23 of this nature --
24 A. Yes.
25 THE CHAIRMAN: -- really should have been taken over by
41
1 ICPC, does it?
2 A. It does indeed, yes. It does indeed. I think that's
3 why it was referred under Article 8.
4 THE CHAIRMAN: Thank you.
5 REV. BARONESS KATHLEEN RICHARDSON: Could I just ask: so
6 "outside the remit" could be interpreted either that it
7 was too serious a matter to be included in the "may be
8 involved" thing, or not serious enough to trigger their
9 involvement?
10 A. I shouldn't think it was not serious enough. I don't
11 think either of those two should have applied really.
12 I think they possibly should have taken it on board.
13 REV. BARONESS KATHLEEN RICHARDSON: But it might have needed
14 a separate action, rather than just being included in
15 what was already up there?
16 A. Technically, that may be the case, but, in practice,
17 I think they should have taken it on board.
18 REV. BARONESS KATHLEEN RICHARDSON: Thank you.
19 Questions from MR McGRORY
20 MR McGRORY: If I may, sir, just a couple of things.
21 My name is McGrory. I represent the family of
22 Robert Hamill.
23 I think you will understand how much of a concern it
24 is to the family that this issue appears to have slipped
25 through the supervisory net of the ICPC --
42
1 A. Yes.
2 Q. -- but the reality is that it did, of course. The point
3 at which it did was between two significant interviews
4 of the Reserve Constable.
5 Now the note you were shown by Mr Adair at [27209]
6 from Mr Mullan --
7 A. Yes.
8 Q. -- to -- I don't know if we need to look at it again.
9 It is dated 19th September 1997.
10 A. Uh-huh.
11 Q. Are you aware that prior to this in the same month there
12 were a series of interviews by Mr McBurney and Mr Irwin
13 of the Land Rover police?
14 A. No.
15 Q. You are not?
16 A. I am not aware really of anything after the -- I didn't
17 record this complaint in the first place.
18 Q. Okay.
19 A. Really I am going by papers I have in front of me.
20 I was not involved in any sense in the recording or what
21 followed.
22 Q. If I may be permitted then perhaps to fill you in
23 a little bit. I don't want to elongate my questions.
24 A. No.
25 Q. The complaint about the conduct of the police in the
43
1 Land Rover --
2 A. Yes.
3 Q. -- you are aware that that was the first complaint?
4 A. I am.
5 Q. The only complaint really?
6 A. I am.
7 Q. Mr McBurney was appointed the IO in that?
8 A. Correct.
9 Q. I am going to ask you about that in a moment or two.
10 A. Yes.
11 Q. Just in respect of how this fell through the net, there
12 were a series of interviews in September of the four
13 Land Rover police in 1997.
14 A. Right.
15 Q. Then there was to be a follow-up interview of Reserve
16 Constable Atkinson to deal with the issue of the phone
17 call after that. That interview was to take place in
18 October.
19 A. Right.
20 Q. So this document, which I would suggest is the point at
21 which the ICPC appears to have left the stage --
22 A. Yes.
23 Q. -- in the context of any police misconduct --
24 A. Yes.
25 Q. -- is between the two interviews --
44
1 A. Yes.
2 Q. -- of Reserve Constable Atkinson.
3 A. Yes.
4 Q. Now what's puzzling me is that under Article 8 the
5 police force has, I would suggest, really a statutory
6 obligation that if there is some information that is of
7 sufficient gravity, that it should independently bring
8 in the ICPC.
9 A. Yes.
10 Q. Now we have a point here between the two interviews at
11 which there appears to have been some discussion within
12 the ICPC and possibly with Mr McBurney about whether or
13 not they should remain on the stage in the context of
14 the second issue that arose concerning the phone call.
15 A. Yes.
16 Q. As someone who was attached to G Department yourself --
17 A. Yes.
18 Q. -- would it not have been the responsibility of someone
19 within G Department to take a view on whether or not the
20 ICPC should remain in a supervisory capacity?
21 A. Yes. I think if someone in G Department knew that this
22 was the view that was taken in Mr Mullan's minute to
23 Mr xxxxxxxxxx, that might very well have been the case,
24 but I am not sure that they were.
25 Q. This is something we can investigate at a later stage.
45
1 A. Yes.
2 Q. I am grateful for your indication that it is your view
3 that that would be G Department's responsibility to make
4 sure that the ICPC stayed on board.
5 A. Yes. They certainly would have had a view on that, yes.
6 Q. Can I just ask you then about the appointment of
7 Mr McBurney?
8 A. Yes.
9 Q. Because one of the issues here is that he is not
10 attached to G Department.
11 A. No, he is not.
12 Q. No, no. I think that document that was shown to you
13 earlier by Mr Underwood, [63695] --
14 A. Yes, I recall it.
15 Q. Perhaps we could have it back. I think it is the case
16 that you come on the scene after the appointment --
17 isn't that right -- of Mr McBurney?
18 A. I didn't really come on the scene as all.
19 Q. Well, okay. You do somewhere. You are here.
20 A. I am here. I think I am here to explain some matters
21 perhaps not of my making.
22 Q. Perhaps you could assist us. Can you assist us as to
23 the date of this document at all?
24 A. I can't. It probably would have been given a rubber
25 stamp and these things don't photocopy.
46
1 Q. You see, we are aware --
2 A. Sorry. If I can go back on that, I would suggest it was
3 completed on 9th, the same date as the 17(2) was dated,
4 which is a record of the complaint.
5 Q. You see, I am not so sure about that. I am going to say
6 to you why I am not so sure about it, and maybe you can
7 shed some light on it.
8 What we do know is unusually in this case this was
9 a personal referral to ICPC by the Chief Constable
10 himself --
11 A. That's correct.
12 Q. -- which was made a day or two maybe before the
13 complaint arrived on 7th May.
14 A. That's correct.
15 Q. So it is actually an Article 8 referral. It commences
16 life as an Article 8 referral.
17 A. That is correct.
18 Q. So I would suggest that that -- you see, this document
19 says at 4:
20 "The Independent Commission for Police Complaints:
21 (a) must supervise the investigation
22 (b) may supervise the investigation."
23 The "may" box is ticked.
24 A. Yes.
25 Q. That would be further evidence, I am suggesting to you,
47
1 that this is an Article 8 referral, because it is
2 a discretionary supervision by the ICPC.
3 A. Yes. I understood that Article 8 was a mandatory
4 supervision.
5 Q. I think Article 7 is the mandatory and the Article 8 is
6 the discretion. Have I got mixed up in that?
7 A. Sorry. Perhaps my recollection is flawed.
8 Q. Whichever article it is, it is the discretionary one.
9 So I would suggest that that dates this document to the
10 period before the letter arrives, when it would have
11 been mandatory.
12 A. I honestly can't say.
13 Q. I think I am right about that. It is Article 8. I am
14 grateful to Miss Anderson.
15 Sorry. Did you say to me that you agreed with me
16 that that document may have been created before the
17 letter arrives on 7th May?
18 A. I don't know what date the letter arrived at. I know
19 the letter is dated 6th May, as I understand it.
20 Q. But I think it is stamped "Received" on 7th.
21 A. Is it? I am not aware of that.
22 Q. I am not overly concerned with that.
23 A. No, no, no.
24 Q. What I am trying to get at is at what point this
25 document was created. I am suggesting to you it was
48
1 created when it was a discretionary appointment to
2 supervise.
3 A. That could be the case. I know that when I dealt with
4 complaints, that this form of direction to
5 an investigating officer was normally signed and
6 prepared on the same date as the 17(2) was prepared, and
7 the 17(2) in this case, if I recall, it was prepared on
8 9th.
9 Q. This document seems to have been created by an Inspector
10 xxxxxxxxxx.
11 A. xxxxxxxxxx, correct.
12 Q. Now he appoints --
13 THE CHAIRMAN: It may help from paragraph 8 the final
14 submission date is 28th August.
15 MR McGRORY: 27th August.
16 THE CHAIRMAN: 27th August.
17 MR McGRORY: That's six months.
18 THE CHAIRMAN: What does that mean?
19 MR McGRORY: That brings us back to 27th --
20 A. If there is a summary offence involved, that was
21 statute-barred by a certain date. This is why you
22 wanted the papers in.
23 MR McGRORY: That brings us back to 27th April, which was
24 the date of the incident.
25 In any event, the relevance of this document is that
49
1 it appoints Chief Superintendent McBurney as the IO.
2 A. Yes, yes.
3 Q. I have a couple of questions about that. He is not
4 G Department, you see.
5 A. He is not, no.
6 Q. Now is that unusual?
7 A. It doesn't -- it didn't happen very regularly.
8 Q. No.
9 A. One of the reasons it did happen in this case, we didn't
10 have a chief superintendent in G Department as
11 an investigating officer. So sometimes the legislation
12 requires we have a chief superintendent to be
13 investigating officer because of the rank perhaps.
14 Q. It has to be two ranks above the person who is being
15 investigated. This is a reserve constable.
16 A. Yes. Whether there were some other implications wider
17 I am not aware. I don't know. I don't know.
18 Q. We certainly didn't need someone as high as a chief
19 superintendent to do that.
20 A. I don't know what the background is to the appointment
21 of Mr McBurney at all.
22 Q. No. In any event, it would be more commonplace for it
23 to be someone out of G Department?
24 A. Yes, yes, yes.
25 Q. This raises the other issue then as to whether or not it
50
1 was appropriate or common to have an investigating
2 officer into the crime out of which the complaint has
3 arisen and also the investigating officer of the
4 complaint?
5 A. In my view it wasn't very common.
6 Q. Would you go so far as to say it wasn't quite
7 appropriate?
8 A. I wouldn't go so far as saying that, no.
9 Q. But it is certainly not common?
10 A. It was something I only came across on a few occasions.
11 MR McGRORY: Thank you very much indeed.
12 MS DINSMORE: No questions.
13 THE CHAIRMAN: Can I be told, please, the document at
14 page [63695], is that a document created by the police
15 or is it a statutory document?
16 MR UNDERWOOD: I am so sorry?
17 THE CHAIRMAN: The document [63695], is that a statutory
18 document or a document created by the police?
19 MR UNDERWOOD: We think that's a document created by the
20 police, but perhaps Mr Macauley can help us.
21 A. That's created by the police.
22 THE CHAIRMAN: Thank you very much. Thank you.
23 MR UNDERWOOD: I have no questions arising.
24 THE CHAIRMAN: Thank you very much.
25 MR UNDERWOOD: Mr Macauley, thank you very much for coming
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1 and helping us.
2 (The witness withdrew)
3 MR UNDERWOOD: That does conclude the evidence for today,
4 rather surprisingly shortly.
5 THE CHAIRMAN: Thank you very much. Very well then.
6 10.00 am on Monday morning.
7 (11.40 am)
8 (The hearing adjourned until 10.00 am on
9 Monday, 11th May 2009)
10 --ooOoo--
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1 I N D E X
2
MR MARK ARDIS (sworn) ............................ 1
3 Questions from MR UNDERWOOD ............... 1
Questions from MR McKENNA ................. 7
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MR ROBERT JOHN BRIAN MACAULEY .................... 9
5 (sworn)
Questions from MR UNDERWOOD ............... 9
6 Questions from MR ADAIR ................... 31
Questions from MR McGRORY ................. 42
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