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Hearing: 20th May 2009, day 52
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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 Wednesday, 20th May 2009
commencing at 10.30 am
Day 52
1 Wednesday, 20th May 2009
2 (10.30 am)
3 MR UNDERWOOD: Good morning. Mr Hays, please.
4 MR ARCHIBALD OLIVER HAYS (sworn)
5 Questions from MR UNDERWOOD
6 MR UNDERWOOD: Morning, Mr Hays.
7 A. Morning
8 Q. My name is Underwood. I am Counsel to the Inquiry.
9 A. Thank you.
10 Q. I start the questioning and, when I am finished, other
11 people will get the chance to ask supplemental
12 questions.
13 May I ask your full names, please?
14 A. Archibald Oliver Hays, spelt H-A-Y-S.
15 Q. If we look at the screen at page [81804], you will see
16 a document come up that's nine pages long. I wonder if
17 you could just look at it while we scroll through it
18 quite quickly?
19 A. Yes.
20 Q. Is that your witness statement?
21 A. Correct.
22 Q. Is it correct?
23 A. Correct.
24 Q. Thank you. I want to ask you about the way in which
25 complaints got to be supervised by the ICPC back in
1
1 1997. Our understanding of it is this: that where
2 an allegation was made by a member of the public to the
3 police force, then if the complaint was sufficiently
4 serious not to be dealt with by way of informal
5 resolution, then the matter would be referred to the
6 ICPC. If it was a serious matter, the ICPC had to
7 supervise it. If it was less serious, the ICPC could
8 supervise it.
9 There was an alternative, which was, where no
10 complaint had been made by a member of the public, then
11 any matter which the chief constable thought ought to go
12 to the ICPC could be referred by him, and, again, there
13 the ICPC had a discretion whether to pick it up and
14 supervise it.
15 Now, was that your understanding of the way in which
16 it got there?
17 A. Yes, and in addition to that, the ICPC themselves could
18 pick up on something they considered to be public
19 interest.
20 Q. We see this in paragraph 22 of your statement. Perhaps
21 we could have a look at that. It is on page [81808].
22 A. I'm still -- paragraph?
23 Q. Paragraph 22. You elaborate in the second sentence.
24 You say:
25 "For example, they may have picked up something in
2
1 the newspaper or something like that."
2 You go on to say:
3 "However, it was very seldom that this happened ..."
4 Now, this is a matter of some interest to the
5 Inquiry, because there was -- as we understand it
6 anyway -- no technical power in the ICPC to demand it
7 could supervise something.
8 What the Inquiry is interested in is whether as
9 a matter of practice the ICPC could, for example, raise
10 a matter with the chief constable and say, "This is
11 something we want".
12 Is that what you are telling us could happen?
13 A. That did happen. It could happen and did happen.
14 I would need to go back to the legislation to see
15 exactly what the power of the ICPC was, but my
16 understanding -- remembering that we are going back
17 11 years now -- was that the ICPC could pick up anything
18 and speak to the chief constable about it or ask that
19 they be -- it be referred to them or whatever.
20 Q. This is not a memory test.
21 A. I appreciate that. I appreciate that.
22 Q. If you don't recall, just feel free to say so, but,
23 I mean, have you any recollection of any particular
24 matter which went that way, in which the ICPC itself
25 raised the possibility of supervising something?
3
1 A. No, I have no direct recollection.
2 THE CHAIRMAN: In the event that it happened, you envisage
3 the ICPC would have said to the chief constable, "We
4 have noticed so and so. Would you look at it, please?"
5 A. That could happen.
6 THE CHAIRMAN: Then it would remain for the chief constable
7 to decide if he looked at it, and, if he did, what
8 action he would take?
9 A. Yes, but, you know, I can only put myself back in the
10 position of what would happen at that time. I think if
11 the ICPC rang the chief constable about a matter, that
12 they would -- the chief constable would decide some
13 action would need to be taken about it.
14 THE CHAIRMAN: It seems to me that unless the chief
15 constable then received a complaint from someone else,
16 what the ICPC said to him would have to be in the form
17 of a complaint to give him jurisdiction to do anything.
18 MR UNDERWOOD: Well, it goes this way, doesn't it, Mr Hays:
19 the chief constable, as I say, was bound to pass on
20 complaints made by members of the public, but he could
21 himself raise matters with the ICPC --
22 A. Yes.
23 Q. -- if he was concerned?
24 A. Yes.
25 Q. So if I understand your evidence right, it is this: if
4
1 the ICPC, for example, read in the newspaper that
2 a police officer was being investigated for, let's say,
3 corruption and it hadn't had any sight of that itself,
4 it could go to the chief constable and say, "We want to
5 supervise that". Is that it?
6 A. Yes, but the example you are using is not -- is slightly
7 confusing me. If you said to me that the ICPC picked up
8 something in the newspaper that they thought was in the
9 public interest, then we refer it -- could refer it to
10 the chief constable.
11 THE CHAIRMAN: I think, Mr Underwood, if you look at the
12 chief constable's powers, he would have to receive
13 something which -- there is no precise requirement as to
14 its nature, but is in substance in the form of
15 a complaint for him then to have powers to exercise.
16 MR UNDERWOOD: The way in which --
17 THE CHAIRMAN: It is Regulation 5, I think, isn't it?
18 MR UNDERWOOD: The way in which Mr Macauley dealt with
19 this -- perhaps you could help us with this, Mr Hays.
20 Let's have a look at page [73308]. This is the order we
21 are talking about. This is the Police Northern Ireland
22 Order 1987. Article 7, could we highlight that and
23 Article 8? That's fine:
24 "7(1) where the appropriate authority", which is the
25 chief constable with serious matters "decides under
5
1 Article 5(3) or (5) or Article 6(3) to appoint a member
2 of the police force or a member of another
3 United Kingdom police force to investigate a complaint,
4 the appropriate authority shall refer that complaint to
5 the Commission."
6 So that's where a member of the public raises
7 a complaint with the police force. Then:
8 "8. Reference of other matters to the Commission.
9 "(1). The appropriate authority", which is, for our
10 purposes, the chief constable, "may refer to the
11 Commission any matter which:
12 "Appears to the appropriate authority to indicate
13 that a member of the police force may have committed
14 a criminal offence or an offence against discipline; and
15 "Is not the subject of a complaint."
16 THE CHAIRMAN: Yes, I see those enabling words at the end.
17 MR UNDERWOOD: Exactly.
18 Is it that, Mr Hays, that springs your understanding
19 of the ability for the ICPC and the chief constable to
20 get together about something which is not a complaint?
21 A. Yes.
22 Q. That's very kind. Thank you.
23 THE CHAIRMAN: Thank you.
24 MR UNDERWOOD: Again, I repeat, it is not a memory test, but
25 I wonder if you could help us on this: how serious
6
1 a matter would it have had to have been for the chief
2 constable to himself decide that something ought to go
3 to the ICPC which is not the subject of a complaint?
4 A. That strictly would depend on the circumstances or the
5 individual case.
6 Q. I am so sorry. Can I put this one to you?
7 A. Yes.
8 Q. It is a matter for the Panel to decide what happened
9 here --
10 A. Yes.
11 Q. -- but let me put the allegation.
12 The allegation that was made against Mr Atkinson,
13 that we are concerned with here, was that, having been
14 at the scene of what turned out to be a murder, he,
15 having clocked off duty, rang up one of the murderers
16 and told him to get rid of his clothes.
17 That's a matter which emerged as an allegation, not
18 as a complaint. It emerged from a witness statement,
19 and in reliance on that same witness statement, that
20 alleged murderer and five others were arrested and held
21 in custody for six months.
22 Now, is that the sort of allegation against a police
23 officer which you would have thought, in 1997, would
24 have justified a reference under Article 8?
25 A. Oh, I would think so, but as far as I remember ...
7
1 Q. Again, doing the best you can after this time, if that
2 is the sort of thing which had not been referred by the
3 chief constable, but which the ICPC had picked up by
4 a briefing, say, or by reading it in a newspaper, is
5 that the sort of thing which you might expect the ICPC
6 itself to have raised with the chief constable?
7 A. Yes, but I am slightly confused here, because the whole
8 matter was under investigation, the totality of the
9 incident was under investigation from -- prior to any
10 subsequent allegation within the original allegation was
11 made, if you understand me.
12 Q. When you say "under investigation", do you mean under
13 investigation by the police or under investigation as
14 a supervised matter by the ICPC?
15 A. Well, as far as I remember, and I wasn't involved in
16 this -- I never saw the file; I didn't get involved;
17 I had no hands-on on it at all and I didn't see
18 anything -- as far as I remember and as far as I was
19 aware, there was a complaint made. It was passed to the
20 CID because it was a criminal matter. It was put in the
21 investigation process. The ICPC were informed, they
22 took it on board and appointed a supervisor. They
23 approved and -- Complaints & Discipline appointed
24 an officer to make sure that all residual discipline
25 matters were dealt with as the investigation moved
8
1 along, but it was a pure CID investigation at that time
2 with ICPC.
3 Q. All right. Again, I don't want to be doing this as
4 a memory test, but is it your evidence then that the
5 perception at the time in the force was that the
6 allegation against Atkinson was swept up as part of the
7 supervised investigation by the ICPC?
8 A. I couldn't answer that.
9 Q. I want to take you back to my question then, which is
10 this. Assume that the allegation against Atkinson was
11 not referred to the ICPC and was not part of what it was
12 supervising, but it was being investigated as a crime,
13 is that the sort of thing which the ICPC would be
14 expected to pick up and say, "Hang on a minute. We
15 should be supervising that too"?
16 A. I would have expected -- and I only speak from standing
17 outside this and not knowing the details of what was
18 going on -- I would have expected, that is in the
19 totality of the investigation, all that would be
20 included under the ICPC supervision.
21 Q. That's very helpful. Can I just ask a question about
22 internal mechanisms on this? Let's imagine you have the
23 scenario I have just been putting to you, which is there
24 is a CID investigation into the murder, and, for that
25 matter, into neglect, and then this allegation crops up,
9
1 a new allegation that an officer has tipped off one of
2 the murderers of that's known about by the detectives.
3 It goes up to the SIO who is running both the neglect
4 complaint and the murder investigation.
5 Now, would it get to the chief constable, that
6 allegation? Whose responsibility would it be to take it
7 upstairs, as it were?
8 A. That would come back through CID. They were in charge
9 of the investigation.
10 Q. So formally then, would it go through from the SIO to,
11 what, ACC Crime?
12 A. SIO, please.
13 Q. Senior investigating officer?
14 A. Yes. That would be a question for him and his
15 authorities as ACC, and whatever they were reporting to
16 the chief constable, I wouldn't have been aware of that.
17 Q. One other technical point, if you can help us with this.
18 I appreciate I am not asking you about things you had
19 hands-on connection with, just how things worked in
20 respect of a matter that could be referred under
21 Article 8 of the Order.
22 Say you are the chief constable. You learn of
23 an allegation arising out of a witness statement. You
24 decide that it will be investigated as a criminal matter
25 and you would like the ICPC to supervise that. You
10
1 therefore get in touch with the ICPC and get them on
2 board.
3 Formally, how would that have been done?
4 A. Well, the intention within G Department, the formality
5 of that would have been that the notification would have
6 been sent down to G Department and G Department would
7 have informed the ICPC simply for the record purpose of
8 keeping the matter within the system. It was simply
9 a system thing.
10 But the chief constable had the right to do what he
11 liked. The chief constable could go direct and then he
12 could send us a note later on and say, "I have done ..."
13 I think that was the situation.
14 Q. There is no criticism at all here?
15 A. No.
16 Q. As it turns out, in 2000, the matter resurfaced and at
17 that point there was a request by the chief constable of
18 the ICPC that it should supervise the continuing
19 investigation. Nothing formal was done as far as we can
20 see. No letter was written, nothing of that nature.
21 Again, there is no criticism of that.
22 Is that the sort of thing that would happen?
23 A. It could happen.
24 Q. Where that would happen, how would the ICPC have a set
25 of terms of reference, as it were? Would it just be,
11
1 "Look, this is what we are investigating as a matter of
2 crime. Just supervise it, will you?"
3 A. I couldn't answer for the ICPC and their terms of
4 reference. All I could say to you is, as far as we
5 would be concerned in G Department, all we would want to
6 know is, "Has someone notified the ICPC? Would you
7 please tell us for record purposes so we know exactly
8 what's going on".
9 Q. I am sorry to press you but, as you say, where you have
10 a chief constable who is able to do pretty much what he
11 wants on this and he has a meeting with the ICPC and
12 says, "We are investigating this potentially bent
13 copper. We want you to supervise it". Assume you get
14 a note from him saying he has done that. It would be no
15 more formal than that -- would that be it -- in terms of
16 his relationship with the ICPC on it?
17 A. Well, I think no more formal in respect of paperwork or
18 anything like that other than to notify us, but the
19 formality of his meeting with the ICPC I think would be
20 controlled by both their powers and legislation and what
21 they were doing.
22 Q. Certainly I am not suggesting they would go outside
23 their powers.
24 A. No.
25 Q. I am suggesting nobody would necessarily write a nice
12
1 formal brief saying, "Your terms of reference on
2 supervising this are the following".
3 Would that be right?
4 A. I don't know. I honestly don't know what took place
5 between the chief constable and the ICPC.
6 Q. All right. The fact is that you had a system by which
7 you would organise it --
8 A. Yes.
9 Q. -- and monitor it --
10 A. Yes.
11 Q. -- but if the chief constable himself or somebody
12 outside your remit did this, you would simply not be in
13 control of the terms of reference. Would that be fair?
14 A. Yes. It would be the chief constable.
15 MR UNDERWOOD: That's very helpful, Mr Hays. Thank you very
16 much. As I say, some others may ask questions of you.
17 MR WOLFE: No questions.
18 Questions from MR McGRORY
19 MR McGRORY: A couple of matters, sir.
20 Mr Hays, my questions are on behalf of the family of
21 Robert Hamill. I don't intend to keep you too long, but
22 there are just a couple of things you might be able to
23 help us with.
24 The first thing is I am trying to unravel is just at
25 what point the decision was taken to appoint a detective
13
1 chief superintendent as the IO of the complaint.
2 Now, if you could perhaps look at a document which
3 is undated but it is at page [63695], you can take your
4 time just to have a look at this document. It may be
5 a type of document that you recognise, Mr Hays.
6 A. Uh-huh. Yes.
7 Q. The heading is, "Complaint by/on behalf of" and there is
8 something there, "Robert Hamill, Portadown".
9 A. Yes.
10 Q. Then there is "Chief Inspector/Superintendent McBurney",
11 the assistant investigating officers are
12 Superintendents Anderson and Bradley.
13 A. Yes.
14 Q. Can you tell us -- this is a pro forma. Is this
15 a document that you recognise, first of all?
16 A. Yes, it is a document used by G Department to notify
17 an officer that he has been appointed as the
18 investigating officer into a particular complaint.
19 Q. You see, you have heard that the circumstances in which
20 this all arose, the first step is that the chief
21 constable has taken his own steps to refer it before the
22 complaint arrives.
23 You are aware of that?
24 A. I don't know. As I say, I didn't have hands-on on this
25 complaint at all. I don't know whether this went first
14
1 or the chief constable's conversation with ICPC went
2 first. I don't know.
3 Q. Perhaps could you look, please -- this might help you
4 refresh your memory. It is a document at [44407].
5 Now, this is dated 27th June 1997. This is
6 a document which would seem, from the bottom of it, to
7 come from you --
8 A. Uh-huh.
9 Q. -- to a superintendent of Command Secretariat.
10 A. Uh-huh.
11 Q. Is that instantly recognisable, that document?
12 A. Yes. I see my signature on it there.
13 Q. Before I ask you any questions of it, do you want to
14 take a little moment to read it?
15 A. Uh-huh. Yes.
16 Q. Is this now bringing things back to you about the
17 sequence of events?
18 A. I am just taking what's in front of me.
19 Q. It appears what you are saying here is that your belief
20 was that the matter had been referred to the ICPC under
21 Article 8(1).
22 A. Uh-huh, yes.
23 Q. That was made prior to the formal complaint coming in
24 from the Hamill family on 7th May 1997.
25 A. Yes. Uh-huh.
15
1 Q. Now, you appear to be raising an issue here about proper
2 procedures --
3 A. Yes.
4 Q. -- needing to be followed.
5 A. Yes.
6 Q. Because you add:
7 "To ensure that the ICPC's and also [G] Department's
8 records accurately reflect the perceived sequence of
9 events in this case, it would be important to ensure
10 that written confirmation of the Article 8(1) referral
11 is transmitted to the ICPC as soon as possible."
12 A. Uh-huh.
13 Q. Is that because it would be important, from your point
14 of view as the senior person in G Department, to
15 understand that there are two bases for the involvement
16 of G Department, that there is the Article 8(1) and
17 there is a separate complaint?
18 A. No, I don't read that into it.
19 Q. Can you explain why you are raising this issue then, why
20 you are saying it is important that in any future
21 Article 8(1) referrals it should be indicated to
22 G Department in writing?
23 A. To simply ensure the process that was established within
24 G Department was followed, that the records were kept
25 right.
16
1 THE CHAIRMAN: So that the right hand knows what the left
2 hand is doing?
3 A. Correct, yes.
4 MR McGRORY: Yes, of course.
5 A. Command Secretariat appear to have acted on behalf of
6 the chief constable and we were simply asking them,
7 "Look, if you are going to do that, would you please
8 notify us?"
9 Q. Say, for example, there was only ever an Article 8
10 referral from the chief constable, if you understand
11 me --
12 A. Uh-huh.
13 Q. -- that the chief constable's office is the source of
14 the referral to G Department.
15 A. To G or to the ICPC?
16 Q. To the ICPC.
17 A. Right.
18 Q. Is it then the case that G Department also become
19 involved as the investigators?
20 A. G Department should have been involved from the first
21 time that the complaint was made to comply with the
22 process as we had set down.
23 THE CHAIRMAN: This is your administrative process?
24 A. Yes.
25 MR McGRORY: Even though the referral is from the chief
17
1 constable to the ICPC, G Department then also must be
2 brought into the process, because G Department is the
3 investigating body within the police force?
4 A. Well, two points there. G Department needs to be
5 informed and know what's going on in terms of the
6 internal process and their records.
7 The second point about G Department being the
8 investigating body, the investigating body was CID.
9 There is a -- there can be a difference of CID -- if
10 a case is referred to CID, they are the investigating
11 officers.
12 In this case there were CID, ICPC and a member of
13 G Department, Complaints & Discipline, was attached to
14 them to ensure that any discipline that fell out --
15 internal discipline that fell out was dealt with.
16 Q. So is it the case then that if a referral comes directly
17 from the chief constable, that the investigating -- the
18 referral is to the ICPC --
19 A. Yes.
20 Q. -- because the chief constable obviously has a concern.
21 He thinks that the ICPC need to look at a matter, but at
22 the point he raises that with the ICPC, there is no
23 complaint from a member of the public?
24 A. I wouldn't know. I wouldn't know that. You couldn't --
25 Q. Well, we do know that in this case, because the
18
1 complaint does not arrive until 7th May, but, as you
2 have said in your memo here, the chief constable's
3 office had previously referred it under Article 8.
4 A. Yes. That could be -- you see, as I said earlier in
5 response, that matters of public interest, if the chief
6 constable saw there was something that should be
7 referred to the ICPC, he had authority to do that.
8 Q. You see, what is it exactly that the ICPC -- the ICPC,
9 as I understand the legislation to set up, is
10 a supervising body. It supervises some other
11 investigation that's going on within the police service.
12 A. They supervise the complete investigation that's going
13 on. They appoint -- Mr xxxxxxxxxx I think was appointed
14 in this case.
15 Q. Right. So is it the case then that in the absence of
16 a complaint from a member of the public, that if the
17 chief constable refers a matter to the ICPC under
18 Article 8, their role is to supervise the existing CID
19 investigation?
20 A. The ICPC could decide -- if the chief constable referred
21 something like that to the ICPC without a complaint, the
22 ICPC could decide whether they were going to take it on
23 board or not.
24 Q. If a complaint had never come on 7th May, then the ICPC
25 has to take a decision on whether or not it supervises
19
1 whatever investigation is ongoing?
2 A. I would think so, yes.
3 Q. And that wouldn't necessarily involve G Department at
4 all, because there is no complaint?
5 A. Oh, well, if it got to the stage where ICPC were
6 involved, then G Department would obviously have
7 a watching brief on it, because there may be, as I say,
8 fall-out discipline from any allegation that was made.
9 Q. But would it be a watching brief?
10 A. Not necessarily. It could be an involvement brief, not
11 in a criminal investigation, but. I think this is --
12 THE CHAIRMAN: If the chief constable wants something
13 investigated as a disciplinary body, the only body
14 within the force that can do it is G, isn't it?
15 A. That's correct.
16 MR McGRORY: Obviously then, if the complaint had never come
17 on 7th May, G Department would keep a watching brief,
18 and, at the conclusion of whatever investigation was
19 ongoing, then G Department and the ICPC would take
20 a view on whether or not there was a separate
21 disciplinary issue to be addressed.
22 A. No. When a complaint was investigated by the ICPC, or,
23 say, CID, the matter would eventually finish up with the
24 DPP. The DPP then, after all the criminal aspects of
25 the case were dealt with right through to court or
20
1 whatever, then, and only then, would G Department step
2 in to deal with any resulting discipline or resulting
3 neglect of duty or whatever it may be. It may just
4 simply have been a breach of police orders or standing
5 orders or something like that.
6 Q. But, in other words, the ICPC under the Article 8
7 referral had an obligation to take a view on whether or
8 not it was supervising the criminal investigation?
9 A. Well, that was up to the ICPC. I couldn't speak for
10 them.
11 Q. But you agree that the legislation intends that when the
12 chief constable thinks there is an investigation going
13 on which merits ICPC supervision and independently
14 refers it to the ICPC before there is any complaint,
15 that that is a pretty persuasive suggestion to the ICPC
16 that it ought to be involved?
17 A. Well, that would be up to the ICPC to interpret that.
18 Q. Well, would you agree that such referrals under
19 Article 8 by the chief constable's office would not have
20 been particularly common?
21 A. Wouldn't have been common, no.
22 Q. It would certainly suggest a high level of interest in
23 the events --
24 A. Most likely.
25 Q. -- from the chief constable's office?
21
1 A. Most likely.
2 Q. Would that explain -- you see, Superintendent McBurney
3 was appointed the IO. Certainly from our point of view,
4 we are trying to trace the earliest possible time when
5 that could have happened. The documentation doesn't
6 quite disclose it, but -- unless -- sorry. I thought
7 Mr Underwood might be about to come up with a document
8 that does.
9 Would it be the case that because there had been no
10 formal complaint to G Department, that because it was
11 an Article 8 referral, that the chief constable's office
12 appointed Superintendent McBurney directly?
13 A. I think you have to move back a little bit and remember
14 that there was an incident reported on the street, as
15 far as I remember, and that would have been -- could
16 have been the subject of an investigation totally
17 independent of G Department, which could have been a CID
18 investigation, which Mr McBurney may have been involved
19 in from the very outset.
20 I don't know, but he was appointed by G Department
21 as the investigating officer, but that would have been,
22 I would say, in time lag after he actually had been
23 involved and appointed by his own authorities, by the
24 CID authorities, and most likely they would have
25 directed that he investigate it.
22
1 Q. I think in terms of the incident on 27th April the IO
2 was Chief Inspector P39, a female Chief Inspector in
3 Portadown?
4 A. I couldn't answer that. I don't know.
5 Q. Chief Superintendent McBurney doesn't become the IO of
6 the investigation until it becomes a murder on 8th May,
7 but he seems to have been appointed as the IO of the
8 complaint. Do you understand me?
9 A. Well, the document would relate the date of his
10 appointment by G Department.
11 Q. Yes, but, you see, he is not attached to G Department.
12 A. No, he is CID.
13 Q. We already have a Superintendent Anderson.
14 A. Yes, who is C&D.
15 Q. Who is appointed as Chief Superintendent McBurney's
16 assistant or second in command in respect of the
17 complaint.
18 A. Assistant, not second in command. Liaison most likely,
19 liaison between him and G Department.
20 Q. Would you not have expected that C&D would have had
21 their own IO in respect of the complaint?
22 A. It was Mr Anderson.
23 Q. You see, what the paperwork seems to be suggesting here
24 is that Chief Superintendent McBurney wore at least two
25 hats; one as IO of the murder investigation --
23
1 A. Right.
2 Q. -- and another as IO of the complaint.
3 A. No. Where did we separate the complaint from the
4 murder? The complaint would have been part of the
5 murder.
6 Mr McBurney, as far as I was concerned, as far as
7 I know, and as far as I remember -- and, as I said,
8 I didn't have hands-on on this -- was the senior
9 investigating officer of the incident.
10 Mr Anderson was appointed to assist him or to liaise
11 with him in respect of any matters that were internal
12 discipline residual matters that would fall out of his
13 investigation.
14 Q. You see, the difficulty with this was, in terms of the
15 progress of the complaint investigation, there were
16 interviews of these Land Rover police in September and
17 October of 1997.
18 A. Uh-huh.
19 Q. Do you understand that the complaint was about the
20 suggestion that the police did not get out of the
21 Land Rover quickly enough and intervene in the incident?
22 A. I only know that from reading it in the papers.
23 Q. Right.
24 A. I had no knowledge of this complaint. I didn't have
25 hands-on.
24
1 Q. Those interviews were conducted by Chief
2 Superintendent McBurney, their complaint interviews, in
3 September and October of 1997, and he had with him
4 another police officer called Inspector Irwin.
5 Now, Superintendent Anderson isn't at these
6 interviews, so can you help us as to why the senior
7 officer from C&D would not have been the person
8 responsible for conducting those interviews?
9 A. Because they were a criminal investigation being
10 conducted by Mr McBurney, who was chief superintendent
11 and very a senior CID officer in the area. That was
12 a criminal investigation.
13 As I said earlier, Mr Anderson was dealing with
14 residual discipline, which is far removed from the CID
15 investigation or the matters concerning CID.
16 Q. In other words, the investigation of the police in the
17 Land Rover was viewed from the point of view that they
18 were being investigated for a criminal offence of not
19 assisting Robert Hamill?
20 A. They were being investigated by Mr McBurney, CID.
21 I don't know what the allegations were or were not.
22 Q. You see, would you not have expected a C&D officer to
23 have at least been present for those interviews?
24 A. Not necessarily. In fact -- no. CID investigation,
25 that took priority.
25
1 Q. I suppose we at least -- you see, what happened here as
2 well is that -- you may not be able to help us with
3 this -- there were interviews in September and then in
4 October in the context of -- which were -- the September
5 one was supervised by the ICPC.
6 A. Uh-huh.
7 Q. The context of those interviews was of the policemen,
8 about why they didn't get out of the Land Rover.
9 A. Uh-huh.
10 Q. In respect of one of them, Reserve Constable Atkinson,
11 who is the Reserve Constable in the Land Rover about
12 whom it is alleged that he made a phone call the
13 following morning to one of the suspects in the
14 murder --
15 A. Uh-huh.
16 Q. -- right? Then it was a GBH -- tipping him off about
17 how to avoid being detected and so forth. He was
18 interviewed in September, mostly about whether or not he
19 got out of the Land Rover in time, but partly about
20 whether or not he had a connection with the fellow he is
21 alleged to have phoned --
22 A. Uh-huh.
23 Q. -- and whether or not he might have been in phone
24 contact with him.
25 A. Uh-huh.
26
1 Q. There is then a follow-up interview a few weeks later in
2 October, a month later precisely. The ICPC supervised
3 the first interview, but before the second interview,
4 the ICPC takes a view that it didn't need to supervise
5 the second interview which was more specifically about
6 the phone billing records and so forth.
7 Can you help us as to what your view is about this
8 situation -- what I am suggesting to you is a very
9 puzzling situation where the ICPC is supervising this
10 investigation and there are two interviews about
11 an aspect of it, yet it removes itself. Does that sound
12 to you something that is unusual?
13 A. I couldn't answer that --
14 THE CHAIRMAN: Forgive me just one moment. Mr McGrory, at
15 this stage, had the ICPC received Mr McBurney's report
16 which it prepared for the DPP?
17 A. Oh, no, long before. This is long before. The stage
18 I am talking about is September 1997.
19 THE CHAIRMAN: Yes, I see.
20 MR McGRORY: As an assistant chief constable who had
21 responsibility for complaints --
22 A. Uh-huh.
23 Q. -- does it sound unusual to you that the ICPC, having
24 been involved in respect of the allegations of neglect
25 and having been aware of the allegation of a phone call,
27
1 then doesn't complete the interviewing process?
2 A. I couldn't answer that for the simple reason I don't
3 know what the facts of the case were. They would have
4 been privy to the CID investigators and the ICPC, and in
5 truth, I wouldn't have seen anything to do with that
6 file other than the papers I signed, because I moved on.
7 I moved to a different department in the autumn of that
8 year.
9 Q. Just one final matter for you, Mr Hays. You have
10 a situation where a complaint comes in from a member of
11 the public based on information that is available to
12 that member of the public --
13 A. Uh-huh.
14 Q. -- and new information comes to light, a development in
15 the complaint --
16 A. Uh-huh.
17 Q. -- significant information which might broaden the terms
18 of the complaint.
19 Would you have been of the view that C&D needed some
20 further authority to investigate the broader complaint?
21 A. If you are using a hypothetical case, if a complaint is
22 made and an officer is appointed to investigate it,
23 a C&D officer -- that is a Complaints & Discipline
24 officer -- and he goes to investigate it and then he
25 finds out there is something more to it, he has the
28
1 right to turn round and go back and refer it, or involve
2 CID and get it referred there, or even, if necessary, to
3 take it up the chain to ICPC. That was the system.
4 But as I speak that's a hypothetical. I am only
5 dealing with a hypothetical case.
6 THE CHAIRMAN: If we can be more specific, G Department is
7 seized of a complaint that the police officers in the
8 Land Rover had stayed in the Land Rover after the time
9 when they should have got out.
10 Now, next comes a complaint that one of those
11 officers tipped off a suspect. That may be thought of
12 as more than an enlargement of the original complaint.
13 It is a complaint of a different nature.
14 A. Yes.
15 THE CHAIRMAN: Now, bearing in mind that that's what
16 happened, what would you expect to be done if C&D was
17 going to investigate the tipping-off allegation?
18 A. C&D wouldn't investigate the tipping-off allegation
19 because the whole matter at that time was under the
20 control of Mr McBurney.
21 THE CHAIRMAN: So they would wait until the criminal
22 investigation had been completed?
23 A. Yes, and deal with residual discipline. That's what
24 they were there for. The whole matter was under control
25 of the CID, who was liaising to the ICPC and then back
29
1 through the DPP.
2 THE CHAIRMAN: So what would -- as long as the criminal
3 aspects were being investigated, what, if anything,
4 would C&D be doing? Just waiting?
5 A. Yes, standing back and making sure that the Is were
6 dotted and the Ts were crossed in relation to any
7 residual discipline that may have been dealt with by
8 G Department; in other words, if there was some breach
9 of a force order or something like that, something --
10 usually you would find out it was simple, but the CID
11 investigation was the investigation.
12 THE CHAIRMAN: So keeping an eye on whatever might have to
13 be looked at in the future once the criminal
14 investigation had ceased?
15 A. Correct.
16 MR McGRORY: I will stay away from hypotheses. In my next
17 question I will ask you directly.
18 A. Please.
19 Q. As you know, what has happened here is that the
20 complaint has come in about the Land Rover police?
21 A. I know that from public knowledge, yes.
22 Q. Then the information comes into the system from
23 a witness about the allegation that the police officer
24 actually phoned and tipped off one of the suspects?
25 A. Yes.
30
1 Q. It is a fact that the family of the victim were never
2 informed of that information either by C&D or by CID.
3 Now, can you assist us as to whose responsibility it
4 would have been? C&D should be aware of the information
5 and are involved, as are the CID, as are the ICPC, but
6 nobody tells the victim's family.
7 A. Well, that surprises me, because usually there's a close
8 cooperation or close liaison between people who make
9 a complaint or people who were victims and the
10 investigators are the local police.
11 I think it is a practice now to have a liaison
12 officer appointed where there is a serious crime. It
13 may not have been in that case. I don't honestly know.
14 MR McGRORY: Okay. Thank you very much.
15 SIR JOHN EVANS: Could I just ask Mr Hays just to clarify
16 for -- can you put that back on the screen, the one we
17 have just had, please? Would you comment, Mr Hays,
18 please, on the normality of a chief constable's
19 referral?
20 Is it normal, or would it be the normal case, that
21 the chief constable would in practice ask the deputy or
22 the ACC G to make the reference in his name?
23 A. That would be normal.
24 SIR JOHN EVANS: Do you know why he didn't do it in this
25 case?
31
1 A. I don't know.
2 SIR JOHN EVANS: Can you remember what prompted this
3 memorandum?
4 A. I think it was a note that came down from the chief
5 constable's office to say, "Would you please draft
6 a reply in respect of ..." whatever.
7 SIR JOHN EVANS: So the reply you have been asked to draft
8 then surprised you, because you didn't know the
9 reference had been made?
10 A. No.
11 SIR JOHN EVANS: Thank you.
12 THE CHAIRMAN: Yes, Mr Emmerson?
13 Questions from MR EMMERSON
14 MR EMMERSON: Mr Hays, I just want to ask you one or two
15 questions on behalf of the Director of Public
16 Prosecutions. I think that in your role as ACC
17 responsible for G Department it was part of your
18 responsibility to carry out liaison with the DPP's
19 department?
20 A. Not personally.
21 Q. I am looking at paragraph 6 of your statement at
22 [81805]. It may be that I have misread the sentence
23 that appears there. You indicate there it is your
24 responsibility -- it includes the overview and efficient
25 running of the department and liaison with the DPP?
32
1 A. Yes.
2 Q. That's an area that's obviously within your
3 responsibility as ACC of G Department, but is it
4 something you would directly involve yourself --
5 A. Not necessarily.
6 Q. You might do or might not do?
7 A. It was the responsibility of the department. It could
8 have been dealt with at a lower level.
9 Q. Can I ask you to look, please, just at page [81807] at
10 paragraph 16, if I can clarify one matter with you, if
11 I can, please. You say there:
12 "The roles of the DPP and the ICPC need to be
13 considered when looking at discipline. The DPP,
14 certainly in relation to complaints dealing with the
15 public, had a major role to play ..."
16 Can I just clarify in very simple terms what the
17 procedural sequence was in relation to complaints that
18 were supervised within G Department? If I can just take
19 it in stages.
20 First of all, once an investigation supervised
21 within G Department had been completed, if there were
22 grounds to believe that a criminal offence may have been
23 committed, the file would then be referred by the police
24 to the DPP. Correct?
25 A. Correct.
33
1 Q. That referral might be by CID, if it was a CID
2 investigation, or by G Department as well?
3 A. Correct.
4 Q. If it was an investigation that was being supervised by
5 the ICPC, what role, if any, would the ICPC have in the
6 submission of the file to the Director of Public
7 Prosecutions?
8 A. I couldn't honestly answer that, and, going back --
9 I would need to go right back and try to look at the
10 system again. I couldn't answer that now, but I would
11 have thought that the investigation would have been
12 completed, if supervised by the ICPC, and the file would
13 have been sent to the DPP.
14 I would have been aware they would have had comments
15 possibly on a file to the DPP.
16 Q. Just as far as the police end of that communication is
17 concerned, would it be G Department or the SIO of CID,
18 if it were such an investigation, who had ultimate
19 responsibility for liaising with and transmitting the
20 file to the DPP?
21 A. It would be the SIO.
22 Q. The second stage then in that process is that it would
23 be for the DPP to decide on the evidence submitted
24 whether or not the test for criminal prosecution was
25 made out. Correct?
34
1 A. Correct.
2 Q. If the decision was taken by the DPP that there was
3 insufficient evidence to prosecute for a criminal
4 offence, the matter would then be returned to the ICPC,
5 if it was an ICPC-supervised investigation, to decide
6 whether to direct disciplinary proceedings, or if it was
7 a non-supervised investigation, to G Department. Is
8 that right?
9 A. Yes, or to CID.
10 Q. Or to CID?
11 A. Yes.
12 Q. If it were a non-supervised complaint, by which I mean
13 a complaint not supervised by the ICPC, it would be
14 G Department's responsibility to consider what you have
15 described as residual discipline issues. Is that right?
16 A. Correct.
17 Q. So one way or another, it would need to be back with
18 G Department?
19 A. Yes.
20 Q. G Department would then consider whether non-criminal
21 disciplinary action should follow?
22 A. Correct.
23 Q. And precisely the same process would take place in the
24 case in which there was a prosecution, only in that
25 event it would take place after any criminal proceedings
35
1 had concluded?
2 A. Correct.
3 Q. Paragraph 18, just a minor point of clarification. In
4 the second sentence it appears to be suggesting
5 a sequential order:
6 "... the process of the file relating to a criminal
7 offence was CID, DPP, ICPC and then, if necessary, to
8 court."
9 That's not strictly an accurate sequence, is it?
10 A. No. It is the general process involving those people.
11 Q. But not in any order in which it appears in that
12 sentence?
13 A. Not in any order, no, no, no.
14 Q. Finally, can you look at [81811], paragraph 34 of your
15 statement? This is the part of your statement in which
16 you are dealing with the allegation of perverting the
17 course of justice, which you have indicated in the
18 preceding paragraphs was not an allegation that was
19 being supervised at that stage by G Department.
20 Correct?
21 A. Yes.
22 Q. We know from other evidence as a matter of fact that, at
23 least in the early stages, it wasn't being supervised by
24 ICPC either.
25 A. Uh-huh.
36
1 Q. I just want to be clear about the way in which you
2 express yourself here:
3 "The allegation of perverting the course of justice
4 would be a matter for CID under the leadership of CID
5 and direct with DPP, and the supervision of that was
6 tied up with ICPC."
7 Leaving ICPC out of the equation for the moment,
8 what do you mean by "under the leadership of CID and
9 direct with DPP"?
10 A. Well, it would be a matter for the senior investigating
11 officer on the ground and his authorities in relation to
12 CID of the investigation of that, the reporting of that,
13 and then it would go to the DPP.
14 Q. So essentially the sequence mirrors the sequence in
15 relation to a complaints investigation where there might
16 be a criminal allegation involved?
17 A. Yes.
18 Q. Namely, CID would conduct the investigation and complete
19 the investigation file?
20 A. Yes.
21 Q. There would be a process of review in a serious case to
22 determine that the file was in the best possible shape
23 for submission to the DPP --
24 A. Yes.
25 Q. -- and, thereafter, the DPP would consider the file, and
37
1 any deficiencies within it, and, if necessary, issue
2 an interim direction to make good any shortcomings.
3 A. Correct.
4 MR EMMERSON: Thank you. Those are my questions.
5 MS DINSMORE: No questions.
6 THE CHAIRMAN: Yes, Mr Adair?
7 Questions from MR ADAIR
8 MR ADAIR: There are just a couple of matters I want to ask
9 you about, Mr Hays.
10 We know that in this case Mr McBurney was appointed
11 the senior investigating officer for the murder. Okay?
12 We then know that whether it was an Article 7 or not
13 complaint, that there is a complaint concerning
14 potential criminal conduct on the part of the Land Rover
15 crew which had to be investigated?
16 A. Uh-huh.
17 Q. Now, we know also that Superintendent McBurney was
18 appointed by G Department as the investigating officer
19 for that complaint?
20 A. Uh-huh.
21 Q. Isn't that right?
22 A. For the murder -- yes.
23 Q. Not just for the murder, that Mr McBurney --
24 A. The totality of the thing.
25 Q. -- was appointed by G Department, as I understand it.
38
1 A. Yes.
2 Q. Who actually took the decision to appoint him?
3 A. I don't remember. He would have been the senior CID
4 officer in the area, as far as I remember at the time.
5 Q. Was it somebody in your department, obviously in
6 G Department, who took that actual decision?
7 A. Well, the notification was sent out from us, so it could
8 have been, or it could have been notified to us by the
9 CID authorities that he was being appointed as ...
10 Q. Is there any way we can find out -- it may be I have
11 missed something somewhere -- who actually took the
12 decision, so we can work out his thought processes, who
13 actually took the decision in G Department to appoint
14 Mr McBurney in relation to the complaint?
15 A. Not that I could -- not that I could guide you along
16 that, but certainly my own memory of a situation like
17 this, not in relation to this particular case, but if
18 there is a crime or an alleged crime or a serious
19 incident that occurs in any area, it is immediately
20 brought to the attention of the CID in that area.
21 If there is, for example -- this is only
22 hypothetical -- if there was a murder committed in
23 an area, the CID are automatically involved. The senior
24 CID officer would be the man who would direct who would
25 investigate the murder.
39
1 If it was something that required a senior CID
2 officer to investigate it, obviously his tier of
3 leadership or higher-up command would direct who would
4 do that, and it could have been from there.
5 We -- the document going out from G Department --
6 when I say "we", I mean the totality of G Department --
7 the document going out under the process named his. So
8 he was either nominated or appointed or was the senior
9 CID officer in the area. As far as I remember he was
10 the senior CID officer in the area.
11 Q. Yes, but, as I understand it, whether or not he is the
12 senior investigating officer in the area, it is still up
13 to G Department to make the appointment of the senior
14 investigating officer for the complaint.
15 A. Yes, but that could be done in consultation with the
16 CID.
17 SIR JOHN EVANS: Could I -- I am so sorry to interrupt your
18 flow.
19 MR ADAIR: Please.
20 SIR JOHN EVANS: Mr Hays, the normal practice in the
21 G Department, who would appoint the investigating
22 officers to deal with an incoming complaint?
23 A. Superintendent New Complaints.
24 SIR JOHN EVANS: So that's the person who would do it?
25 A. Yes.
40
1 SIR JOHN EVANS: Who would sign the memorandum of
2 appointment?
3 A. Him, or if he wasn't ...
4 MR ADAIR: Would you like to swap places, sir?
5 SIR JOHN EVANS: Forgive me, Mr Adair. I wouldn't presume.
6 MR ADAIR: Can I ask you this: would it be considered usual
7 or unusual for the senior investigating officer who was
8 investigating the murder allegation to be appointed as
9 the senior investigating officer in relation to the
10 complaint? Is that usual or unusual?
11 A. That would be unusual. Now, the senior investigating
12 officer CID was in charge of the whole complaint. C&D
13 were simply looking after residual matters, the murder
14 plus complaint.
15 Q. We know in this case that Mr McBurney was the senior
16 investigating officer looking after the murder.
17 A. Yes.
18 Q. Then he is appointed by G Department the senior
19 investigating officer looking after the complaint. Now,
20 are you saying that is unusual?
21 A. No.
22 Q. Maybe I picked you up wrongly on that then.
23 So was that usual or unusual, to appoint the same
24 man who is involved in the murder investigation as the
25 officer in charge of the complaint allegation arising
41
1 out of the same set of circumstances?
2 A. Well, you see, it is confusing, because we have a CID
3 investigation and then we have a residual C&D
4 investigation running in parallel.
5 Mr McBurney is in charge of the complete
6 investigation. Mr Anderson was appointed to look after
7 the C&D interest, i.e. any residual discipline that would
8 fall out of that.
9 Q. Okay. I want to move on to something else.
10 We know that, having been appointed SIO in relation
11 both to the murder allegation and the neglect
12 allegation, Mr Anderson was appointed on behalf of
13 C&D --
14 A. Yes.
15 Q. -- to assist. I think that was the word you used.
16 A. Yes.
17 Q. We also know the ICPC were involved as well in the form
18 of Mr xxxxxxxxxx. Then the allegation comes in in
19 respect of Atkinson. Okay?
20 A. Uh-huh.
21 Q. Now, did Mr McBurney do the -- we know also that
22 Mr McBurney then informed Mr Anderson about the Atkinson
23 allegation at a very early stage.
24 A. Uh-huh.
25 Q. Was that the right thing for him to do or the wrong
42
1 thing?
2 A. I couldn't answer that. As I said, I didn't have
3 hands-on on any of the information relating to the file.
4 Q. Well, would you have expected him to tell Mr Anderson
5 about it?
6 A. Yes, I would have expected him.
7 Q. Now, Mr Underwood has described the nature of the
8 allegation to you, which is just about as serious as you
9 could get in relation to a police officer.
10 Should Mr Anderson have taken that further and
11 referred it to you or to the chief constable or to
12 somebody else once he became aware of it?
13 A. Well, I couldn't answer it in that particular case. As
14 I said, I didn't have any information at all relating to
15 this investigation.
16 Q. Let's say it was you and you are made aware of this.
17 You are ACC South and you are made aware of a serious
18 allegation against a police officer in a murder
19 investigation. What would you have done?
20 A. Well, it would all have been part of the murder
21 investigation. I would have looked at it that way.
22 Q. You would what, sorry?
23 A. I would have looked at it as all part of the totality of
24 the investigation.
25 Q. Would you have referred it up to the chief constable or
43
1 at least mentioned it to him?
2 A. The chief constable would have been made aware of it
3 certainly.
4 Q. By you?
5 A. By whoever. If I was ACC South, yes.
6 Q. In those days, if the ICPC became aware of that type of
7 allegation, whether or not a public complaint would be
8 afoot, if they became aware of it, can you say whether
9 you would have expected them to go up and talk to the
10 chief constable about it?
11 A. They may have done.
12 Q. But would you have expected them to?
13 A. I couldn't answer that, because it depends on where
14 their investigation was, their terms of reference and
15 what relationship they had at that particular time with
16 the chief constable, but it was under investigation. It
17 was a matter of part of the investigation.
18 Q. I think you have told us -- if we could call up
19 page [81808], please, and highlight paragraph 21, we can
20 see that you make reference -- would you like to have
21 a quick read of paragraph 21?
22 A. Yes.
23 Q. The name blanked out is Mr xxxxxxxxxx.
24 A. Correct.
25 Q. You tell us:
44
1 "I have known a couple of cases where, if
2 Mr xxxxxxxxxx was not satisfied with the quality of the
3 investigating officer at any time, he would ask that the
4 investigation be reallocated to a different IO."
5 Is that right?
6 A. Correct. He had that authority. ICPC had that
7 authority. If they didn't approve of the investigating
8 officer, the officer appointed to investigate it by
9 G Department, they could ask to have him changed.
10 Q. Obviously people in a role of supervising or helping in
11 an investigation can be passive or active. Was
12 Mr xxxxxxxxxx a passive or active man?
13 A. As far as I remember, he was active.
14 Q. The final thing I want to ask you about is just in
15 relation to suspension of police officers where
16 an allegation has been made against them.
17 Now, if we go to page [81807], please, you see in
18 paragraph 19 you tell us:
19 "In relation to the power C&D", that's Complaints
20 & Discipline, "had for suspension of officers that was
21 a matter of consultation with the DCC as to where the
22 case would go."
23 So if suspension was being considered in relation to
24 Atkinson once this allegation became known to Complaints
25 & Discipline in the form of Mr Anderson, who was it up
45
1 to as to whether he should be suspended?
2 A. Well, I don't know the facts of this.
3 Q. I will try to give them to you briefly.
4 A. Allegation -- you are asking me to answer a hypothetical
5 question, because I don't know the facts of this.
6 Q. I am not sure it is hypothetical.
7 A. To me.
8 Q. Who normally had the power to suspend a police officer?
9 A. It was delegated to me in certain circumstances, usually
10 relating to internal police matters.
11 Q. So is it -- would it normally be C&D that have -- that
12 take the decision --
13 A. Yes.
14 Q. -- as to whether an officer should be suspended?
15 A. Yes, but that did not stand alone.
16 Q. I am sorry?
17 A. That did not stand alone. C&D had a limited authority
18 to suspend. Above that, it was the deputy chief
19 constable.
20 Q. So he also had the power to suspend?
21 A. Oh, yes.
22 Q. Can you help us as to whether there was, to your
23 knowledge, any discussion between Complaints &
24 Discipline either in May, June or at any stage in
25 relation to -- at any stage in 1997 in relation to the
46
1 possible suspension of Atkinson?
2 A. No, I can't help you. I think it should be remembered
3 that at that time I was running two departments.
4 MR ADAIR: I am sure you were very busy. I am not doubting
5 that for a second. Thanks very much.
6 Further questions from MR UNDERWOOD
7 MR UNDERWOOD: One matter arising out of that.
8 You described the role of G Department or the person
9 from G Department, who in this case was
10 Superintendent Anderson, as having in essence a watching
11 brief while the criminal investigation was carrying on.
12 Is that correct?
13 A. A watching brief in relation to any matters that could
14 be referred to C&D, residual discipline matters.
15 Q. You said to make sure the Is were dotted and Ts crossed?
16 A. In respect of internal discipline.
17 Q. Would a form 17(3) fall within that?
18 A. Yes.
19 Q. So that if, for example, in the course of
20 an investigation in which there is a G Department
21 officer holding a watching brief an allegation comes up
22 that he thinks might well form part of the disciplinary
23 residual matter, it was his responsibility, was it, to
24 consider whether or not to serve a Form 17(3)?
25 A. Yes.
47
1 Q. Our understanding of that is that they needed to be
2 served as soon as practicable. Is that fair?
3 A. Yes.
4 Q. We know that in September 1997 Mr Atkinson was
5 interviewed at length about the allegation that he
6 tipped off Hanvey. That's the alleged murderer. He was
7 interviewed under caution in the course of the neglect
8 complaint, yet no Form 17(3) was served on him. That
9 was wrong, wasn't it?
10 A. Well, in my opinion it would have been wrong, but, as
11 I said, I have no knowledge of the facts of that at the
12 particular time.
13 Q. Equally, we know that Mr Atkinson wasn't suspended.
14 Again, I am not asking to you second-guess the
15 propriety of that. I am interested in the mechanism.
16 We know, as I have told you, that in May of 1997 this
17 allegation surfaced against Mr Atkinson, and, to put it
18 charitably, Mr McBurney sat on his hands for four months
19 and didn't do anything about it by way of interviewing
20 Mr Atkinson, did not put it to him.
21 We can't find any record of any consideration being
22 given to suspend Mr Atkinson from duty during that
23 period.
24 Now, again, I am not asking you to comment on the
25 detail of this. What I am interested in is the
48
1 mechanism. Where you have a situation where that sort
2 of allegation emerges, where somebody from G Department
3 is as senior as a superintendent and is there holding
4 a watching brief, who would be expected to consider the
5 suspension?
6 A. The deputy in that particular case, the deputy chief
7 constable in that particular case.
8 Q. So you would expect -- let's put it pointedly --
9 Mr Anderson to take it up to the deputy chief constable?
10 A. Mr Anderson and Mr McBurney together usually.
11 MR UNDERWOOD: That's very helpful. Thank you very much,
12 Mr Hays.
13 Questions from THE CHAIRMAN
14 THE CHAIRMAN: Can you just help me about one or two matters
15 so I understand?
16 If an investigation is being supervised by ICPC, if
17 as a matter which concerns both a criminal allegation
18 and a disciplinary allegation, as I understand it, the
19 investigation of the criminal allegation will be
20 conducted first?
21 A. Yes.
22 THE CHAIRMAN: At that stage, would the ICPC be conducting
23 the criminal investigation?
24 A. No. The ICPC's role would be supervising that the
25 matter was being investigated properly.
49
1 THE CHAIRMAN: Yes, the criminal matter, will supervise the
2 criminal matter investigation?
3 A. But he wouldn't be totally -- he wouldn't be -- now
4 I don't know the exact role of the ICPC on the ground,
5 but he would be supervising the investigation.
6 THE CHAIRMAN: Now I understand that a disciplinary matter
7 may have a criminal content to it, but also non-criminal
8 but disciplinary content. It may not, but it may.
9 A. Uh-huh.
10 THE CHAIRMAN: So far as the criminal content of the
11 disciplinary allegation is concerned, that is going to
12 be investigated first by the criminal investigation?
13 A. Yes.
14 THE CHAIRMAN: When it comes to the facts upon which the
15 disciplinary decision about the criminal aspect will be
16 made, will C&D make its own investigation of those
17 criminal matters or will it rely upon the criminal
18 investigation of it?
19 A. Rely on the criminal investigation.
20 THE CHAIRMAN: So it will only have to consider if there are
21 any such matters which, though affecting discipline, are
22 not in themselves criminal?
23 A. Correct.
24 THE CHAIRMAN: There was no formal complaint in respect of
25 what we have called the tipping-off allegation. Do you
50
1 know what I mean by the "tipping-off allegation"?
2 A. Uh-huh.
3 THE CHAIRMAN: How would C&D become seized of the
4 investigation of the tipping-off allegation?
5 A. I don't know. Probably they picked it up during their
6 investigations. I don't know.
7 THE CHAIRMAN: I am just wondering, you see, what they need
8 to give them power to look, once the criminal
9 investigation has completed the disciplinary allegation?
10 A. I'm sorry. I don't follow you.
11 THE CHAIRMAN: Well, there is an allegation that Mr Atkinson
12 tipped off a suspect.
13 A. Yes, yes.
14 THE CHAIRMAN: Now, there was no formal complaint, as there
15 was, for instance, of the neglect allegation.
16 How would C&D become seized of the tipping-off
17 allegation so that it would have power to investigate it
18 once the criminal investigation of the tipping-off
19 allegation was completed?
20 A. It would be the fall-out from that, the residual
21 discipline. CID would have been investigating the whole
22 complaint, the whole incident, and then, afterwards,
23 when they had finished and we had dealt with it through
24 the courts or whatever, then C&D would pick up if there
25 was any residual discipline left in that.
51
1 SIR JOHN EVANS: May I interrupt, Mr Chairman? The question
2 really, Mr Hays, is, if there is an investigation
3 ongoing by the CID during the course of which it arises
4 that there is an allegation against a police officer --
5 A. Yes.
6 SIR JOHN EVANS: -- then the CID would report it immediately
7 into the deputy's office or your office to C&D?
8 A. Yes.
9 THE CHAIRMAN: No formal complaint is required then in those
10 circumstances --
11 A. No.
12 THE CHAIRMAN: -- to make C&D seized of the matter?
13 A. No.
14 THE CHAIRMAN: But if, for example, there is no additional
15 element to the tipping-off allegation of a disciplinary
16 but not criminal aspect, would the disciplinary body C&D
17 be able to say, "We make the finding against you that
18 you did tip off this man", and determine the penalty or
19 recommend a penalty?
20 A. I find that difficult, because if the allegation is as
21 serious as that, as I said, that allegation goes into
22 the CID investigation. G Department being notified of
23 it, it went into the CID investigation. When all of
24 that was complete and gone through the DPP, then C&D
25 would act only on the residual discipline. I am
52
1 possibly not making myself clear.
2 THE CHAIRMAN: I am just thinking there may be cases in
3 which a criminal aspect of a disciplinary offence may
4 call for and receive a prosecution.
5 A. Yes.
6 THE CHAIRMAN: The officer may be convicted but fined.
7 A. Yes.
8 THE CHAIRMAN: But then the fall-out, the disciplinary
9 aspect, has to be looked at by C&D?
10 A. Correct.
11 THE CHAIRMAN: C&D may decide, "This is too serious for this
12 man to remain in the force"?
13 A. Correct.
14 THE CHAIRMAN: In order for C&D to be seized of that where
15 there has been no formal complaint, is it sufficiently
16 seized of it by the fact that there has been the
17 criminal investigation?
18 A. Yes. They became aware of it some way or other.
19 THE CHAIRMAN: I see. Thank you.
20 MR UNDERWOOD: Unless there is anything else arising?
21 Mr Hays, you have been extremely kind to us. Thank
22 you very much for coming.
23 A. Thank you.
24 MR UNDERWOOD: We need to change the technology over, so
25 perhaps this would be a good moment?
53
1 THE CHAIRMAN: Yes. Fifteen minutes.
2 (11.50 am)
3 (A short break)
4 (12.05 am)
5 MR UNDERWOOD: Raymond White, please.
6 MR RAYMOND CARSON WHITE (sworn)
7 Questions from MR UNDERWOOD
8 MR UNDERWOOD: Good morning, Mr White.
9 A. Good morning, sir.
10 Q. You will find the questions coming from this angle, just
11 to confuse.
12 My name is Underwood. I am Counsel to the Inquiry.
13 I have a few questions for you. When I am finished, it
14 may well be there will be some supplementals from
15 others.
16 May I ask your full names, please?
17 A. Raymond Carson White.
18 Q. If we have a look on screen, I will ask for page [81253]
19 to come up. It is the first page of a statement running
20 to four or five pages. If we can just scroll through
21 that briefly, is that your witness statement?
22 A. It is indeed.
23 Q. Is it true?
24 A. It is, yes.
25 Q. Thank you. I want to ask you about some systems that
54
1 were in place in 1997. That's all I want to ask about.
2 If we look at page 4 of your statement, page [81256],
3 the last but one paragraph there, you are talking about
4 the actual case that we are involved in. You say:
5 "There was no formal briefing on the three
6 investigations (Hamill Murder, Neglect Complaint and
7 [Atkinson] allegation) as none of the investigations
8 were coming through my department in terms of me
9 supervising Mr McBurney. I was simply the recipient of
10 the crime investigation file once Mr McBurney had deemed
11 it completed and contained all the evidence that he
12 required to sustain any prosecutions he was
13 recommending."
14 What I want to ask about is how the system worked
15 where a senior detective such as Mr McBurney would be
16 supervising a criminal investigation and would complete
17 a file.
18 Would you see the file before it went to the DPP?
19 A. Personally, I probably wouldn't see the file. The file
20 would come to my department. I had about five or six
21 time-served chief superintendents, superintendents,
22 whose job it was, as it were, to read the investigative
23 files to ensure the content was correct.
24 Q. So this was a form of quality control, was it?
25 A. It was policy control. It meant you had, as it were,
55
1 a second opinion from senior investigators as to the
2 content of the file. Did the evidence match the
3 recommendations that were being made? Was all the
4 material within the file that should be within it that
5 would be required for disclosure? In terms of the
6 forensic evidence, was it there, and did their actual
7 recommendations get themselves borne out by the weight
8 of the evidence within the statements. So there was
9 a quality control dimension.
10 Q. Can I ask for some idea of time on this? Let's say you
11 have a file that runs to a 50-page analysis plus
12 a couple of files of witness statements attached to
13 it --
14 A. Yes.
15 Q. -- which is pretty much what we had here. How long
16 would you have expected one of your officers to look at
17 that to do the quality control?
18 A. Well, the simple answer would be as long as it takes, in
19 that they would have to read it in detail, because they
20 were the interface between the police service and the
21 Director of Public Prosecutions. Quite obviously, they
22 would not want something that was incomplete or
23 inadequate going forward to the director, because it was
24 going to come back to them with a whole series of
25 questions.
56
1 If they had missed those, then that was, as it were,
2 an indictment of their professional judgment as to what
3 should have gone forward.
4 Q. So this was more than just a half an hour or so
5 flick-through to make sure --
6 A. Oh, very much so. Quite often it would have involved
7 a telephone conversation even with the investigating
8 officers as regards the sort of pros and cons within it.
9 If there was a shortcoming and a required piece of
10 evidence, perhaps a forensic report still wasn't
11 available, the decision would have been with my people
12 as to whether or not the file went forward with a note
13 or whether it went back or was simply pended until such
14 time as the forensic report was got. So it was much,
15 much more than what you would call a cursory glance and
16 a passing through as such.
17 Q. I want to come back to this particular crime file we are
18 concerned with and the treatment of it. I want to ask
19 you one matter specifically of your involvement so we
20 can clear that up. It is at the bottom of the page we
21 have on screen [81256].
22 In that final paragraph you say:
23 "I was not aware that allegations were made against
24 [Robert Atkinson] from the outset and were supported by
25 third party material in the form of telephone billing
57
1 and I was not briefed on the details of the
2 investigation. I did not have any specific meetings
3 with Mr McBurney about this."
4 We have a journal entry from ACC Hall. We can look
5 at it at page [74231]. It takes some deciphering, but
6 the last entry at the bottom before the blacked-out part
7 is an entry for 12th May 1997. The first column after
8 the date is the working hours on that, but what's in the
9 manuscript part is:
10 "Attended meetings at RHQ", which we take to be
11 regional headquarters, "CC I/C", which we take to be the
12 chief constable in the chair, "also briefed chief
13 constable, DCC and ACC 'C' re allegation against Reserve
14 Constable Atkinson Portadown by Miss T Clarke."
15 So we know that Mr McBurney appeared to have passed
16 the allegation up --
17 A. Yes.
18 Q. -- and here is Mr Hall raising it at a meeting with the
19 chief constable, at which you were apparently present on
20 12th May 1997. Apart from that, did you have any
21 involvement with this?
22 A. With the benefit, as I say, of papers and things that
23 have been served on me, one aspect of it did come to my
24 attention, and probably reflects this aspect here.
25 In terms of telephone billing, we had
58
1 an arrangement, certainly with British Telecom, for
2 telephone billing, but to make sure that process was not
3 abused, then all telephone billing requests came through
4 myself.
5 Now, I could have read, and probably did read, the
6 synopsis that accompanied that application for telephone
7 billing. So in that sense, certainly I would have been,
8 and should have been, aware, but I didn't have recall of
9 it at the time.
10 Q. No, no. I am not raising this in any critical fashion
11 at all. I just want to clear it out of the way.
12 A. Certainly, as I say, the telephone billing application
13 would have set out a synopsis of why they wanted the
14 detail and probably would have made reference to it.
15 That I totally accept, as I say, could have been my
16 state of knowledge as regards Atkinson.
17 Q. Fine. All we are concerned with is the eventual crime
18 file in relation to this, which we know was signed off
19 by Mr McBurney on, I think, the 22nd, but certainly late
20 December 1997. I just wanted to clear out of the way
21 the fact that you had had some involvement earlier on
22 before we get on to this.
23 When the crime file came up -- that is the crime
24 file in relation to neglect of duty in not getting out
25 of the Land Rover, and this allegation against
59
1 Mr Atkinson that he had tipped off someone -- that then
2 would have gone to one of your senior officers to
3 quality control?
4 A. Yes.
5 Q. Now, we know there were serious defects in that file.
6 For example, we know that the alibi, so-called, put
7 forward by Mr Atkinson, which related to the making of
8 the telephone call, was the subject of two contradictory
9 statements made to Detective Inspector Irwin by one
10 witness. It was the second of those statements which
11 was, as it were, relied upon as forming the basis of no
12 prosecution.
13 Now, that's not clear from the file. In fact, it is
14 simply absent from the crime file. You could not tell
15 from the reading of that file that that's what happened.
16 Equally, you could not tell from a reading of that file
17 that the search of Hanvey's premises, which was supposed
18 to have discovered what he was wearing on the night,
19 stopped short, because it was restricted to searching
20 one room and it stopped when three pieces of clothing
21 were seized. There was no search for the clothing that
22 was identified by witnesses, including a police officer,
23 at that time.
24 A. Uh-huh.
25 Q. Now, what the Panel is going to want to know is how
60
1 could the quality control exercised by your department
2 have caught omissions like that?
3 A. It would have been -- the officers concerned would
4 certainly have been expected to sort of examine the
5 statements that were made in detail and then
6 cross-reference that with the search records and things
7 that were made, the records of what articles had gone to
8 forensic for examination. So I would have expected
9 questions to be asked.
10 If it was as obvious as you say it was obvious
11 within the file, for those issues to have been raised
12 and discussed between the senior investigator.
13 Q. I am probably being unfair -- not intentionally -- to
14 your department. What I am saying is even a careful
15 reading of that file wouldn't necessarily have shown up
16 these omissions.
17 A. Well, if it wasn't discoverable, as it were, from the
18 paperwork, then it would have been very difficult for my
19 senior investigators to sort of have seen behind the
20 scenes, as it were. So in that sense certainly, it
21 would have gone on through without that omission being
22 attended to.
23 Q. Please don't take these questions as being critical of
24 any person. What I am interested in is the system here.
25 If we could look at page 3 of your statement, which
61
1 is at page [81255], in the fourth paragraph down, the
2 main paragraph there, you tell us:
3 "The senior investigating officer was the top of the
4 investigative hierarchy and the policy book was not
5 signed off by anyone else as no-one was in a position to
6 'second-guess' him. The regional assistant chief
7 constable could have expressed an opinion to the SIO
8 which one might expect to have been reflected in the
9 policy book, and there may be discussion as to an agreed
10 line of inquiry in certain cases. The policy book was
11 a supplement to the inquiry but one that reflected
12 purely the thoughts of the senior investigating officer.
13 It was not regarded as appropriate for assistant chief
14 constables to interfere with investigations and they may
15 not have the time or relevant specific knowledge or
16 experience to direct investigations. It was thought
17 better to allow the senior investigating officer freedom
18 to conduct the investigations and to be accountable for
19 it. The crime file that resulted would have been the
20 documentation on which the SIO's professionalism and
21 standard of work would be measured. No-one would be
22 stepping in and out and constantly reviewing his
23 day-to-day working standard. The SIO would periodically
24 meet with his ACC and myself to give an update on
25 an investigation."
62
1 You stand by that, I take it?
2 A. Yes. What I was trying to reflect there, this was
3 an evolving period. From the introduction of the
4 CPIA Act, the Criminal Procedures and Investigations
5 Act, in 1996, there was a considerable change in the
6 whole of the requirements placed on the policing service
7 for the retention of documentation, disclosure, etc.
8 At the same time, the ACPO Crime Committee was
9 reviewing the whole investigative processes for murder
10 investigations with the purposes of updating HOLMES
11 systems and producing, as it were, the murder
12 investigation manual.
13 So it was a time of flux, and the role, as it were,
14 of assistant chief constables was somewhat unclear.
15 Subsequently cleared up to some degree by a policy
16 statement from ACPO that would place him, as it were, in
17 a strategic position to assist with enquiries.
18 What I am reflecting there is the situation as it
19 was over the period when the murder of Mr Hamill
20 occurred
21 Q. Right. Let me put this brutally. A possibility is that
22 the late Mr McBurney decided, for whatever reason, to
23 smother the allegation against Mr Atkinson and to ensure
24 that he didn't get brought to book for it.
25 One of the ways in which he did that was to ensure
63
1 that it was dealt with by him, as SIO, of a neglect
2 complaint which was not being supervised, that he then
3 tacked on four pages at the end of his neglect crime
4 file dealing with it in which he misled the reader about
5 the evidence there was and the way in which the
6 investigation was being conducted.
7 That's one way of looking at it.
8 What I would be grateful for your help on is this:
9 that if that's what he did, but even a fair analysis of
10 the report would not show that to an informed reader,
11 then there was nothing in the system to stop him getting
12 away with it, was there?
13 A. Well, you know, what you are putting to me is totally
14 speculative in that respect. I don't have a sufficiency
15 of knowledge, nor have I read the investigation file to
16 sort of, you know, work with you on that conclusion as
17 such.
18 Q. I am not asking to you comment on whether Mr McBurney
19 did or did not do anything wrong. What I am asking you
20 about is the way the system would or would not have
21 caught it if he had.
22 Take it from me for the moment as a proposition that
23 what was in his crime file of December 1997 was
24 seriously misleading, but that you couldn't pick that up
25 from reading it, what was there in the entirety of the
64
1 process of the RUC to stop an SIO doing that?
2 A. I guess nothing in the sense that you were trusting upon
3 the integrity of the investigating -- senior
4 investigator and his entire team that nothing would be
5 missed, as it were, in respect of the investigation,
6 and, as it were, the checks in a sense that were made
7 through the independent reading of that investigative
8 file, but, I mean, that was entirely based obviously on
9 the written record. So if there was any ulterior
10 motives that ensured evidential material was not
11 included in a file, then there wouldn't have been any
12 great mechanism for picking that up, except, as I say,
13 the knowledge of the regional assistant chief constable
14 and others that would be on the periphery of the
15 investigation, one would have hoped would have made
16 absolutely sure that no, shall we say, nefarious
17 activity of that nature would have been contemplated.
18 Q. But obviously --
19 A. But, I mean, there is no crime investigation system bar
20 the review processes that are now in place, and bear in
21 mind we didn't have a review process at this moment in
22 time when this occurred. It was still an evolving
23 process within police structures that might have picked
24 up on it. You were dependent, as it were, very much on
25 the integrity of the officers concerned.
65
1 MR UNDERWOOD: Yes. As I say, this is a proposition. I am
2 not asking you to accept it. It is not one that is
3 being accepted at any rate yet. It may be a matter for
4 the Panel to decide; it may not be.
5 What I am interested in from you is that systematic
6 question. For that, thank you very much. That's my
7 questioning.
8 THE CHAIRMAN: Mr Underwood, there is a second statement.
9 Are you wishing to make that part of the evidence before
10 us?
11 MR UNDERWOOD: Yes. I am so sorry. I should have done
12 that.
13 THE CHAIRMAN: [81659].
14 MR UNDERWOOD: Thank you very much. Perhaps we could bring
15 that up. Mr White, is that your further statement?
16 A. It is indeed, yes.
17 MR UNDERWOOD: Thank you very much.
18 MR McGRORY: I do have questions, sir --
19 THE CHAIRMAN: Yes.
20 MR McGRORY: -- if it is appropriate. Thank you, sir.
21 Questions from MR McGRORY
22 MR McGRORY: My name is McGrory, Mr White, and I represent
23 the family of Robert Hamill.
24 Can I just ask you a few general questions, first of
25 all, about your view of how certain investigations
66
1 should be conducted?
2 I am suggesting to you that that's highly relevant,
3 because your role as ACC of Crime, as you have very
4 carefully set out in your evidence, written evidence,
5 is, in fact, as a sort of a quality control of criminal
6 investigations. Isn't that right?
7 A. In part, yes, I would accept that, yes. We were the
8 interface between the Police Service and the criminal
9 justice process, and through that, as I say, the
10 investigation files that went to the DPP were quality
11 controlled, yes.
12 Q. I think your department would review files with a view
13 to expressing a view as to the quality of the
14 investigation --
15 A. That's correct.
16 Q. -- whether or not maybe somebody had overlooked
17 something or something further needed to be done or
18 perhaps if a different approach should be taken with the
19 conduct of the investigation.
20 A. Correct.
21 Q. Now, what we have here, ACC White, is a situation where
22 an investigation into a beating which resulted in
23 a death is commenced. It starts life as
24 a GBH investigation and then it becomes a murder inquiry
25 on 8th May 1997 once Robert Hamill dies.
67
1 Into the mix comes information from a key witness in
2 this case, Tracey Clarke, who is not only an observer of
3 the events of the beating Mr Hamill took, but has other
4 information about the conduct of a reserve constable,
5 whom she believed was involved in tipping off and
6 keeping informed one of the suspects in the murder case.
7 Now, by any stretch of the imagination, that is
8 a very serious allegation of criminal conduct on the
9 part of a police officer?
10 A. Correct.
11 Q. Of such a nature that one would expect that everything
12 should be done to get this police officer, if that's
13 true?
14 A. Correct.
15 Q. Now, if there is a rotten apple in the barrel of the
16 police in Portadown, you would want to find him?
17 A. Well, that has always been our policy, yes.
18 Q. Now Chief Superintendent McBurney is the IO of this
19 investigation. He is a very senior officer.
20 A. Correct.
21 Q. In terms of the information that is available to him
22 about the police officer's conduct, he interviews him on
23 9th September 1997.
24 Now, there is also, of course, in the mix
25 a complaint from the family of Robert Hamill, who, up to
68
1 this point, are only aware of allegations that the
2 police did not get out of the Land Rover in time to save
3 Robert.
4 Chief Superintendent McBurney and Inspector Irwin
5 interview the reserve constable on 9th September
6 principally about the allegation of not getting out of
7 the Land Rover.
8 They also have, by this time, the results of the
9 telephone billing that you authorised back in May, which
10 show that a call was made from the police officer's home
11 on the morning of the incident on 27th April at 8.37 am
12 and that there was a further call from the police
13 officer's home on 2nd May to the suspect's home.
14 Now, we have been told earlier today, and
15 previously, that what Superintendent McBurney was doing
16 was heading up an investigation into the crime that the
17 police officer was alleged to have committed.
18 Now, you would be aware of this crime -- isn't that
19 right -- which is one of assisting offenders?
20 A. Yes.
21 Q. I am going to suggest to you that normal police practice
22 would be, when investigating an offence, a serious
23 offence, particularly one of murder, that if there is
24 also evidence that someone assisted the murderer after
25 the fact, after the event, that that would normally be
69
1 regarded as part and parcel of the same investigation?
2 A. Yes, I can see your argument, yes.
3 Q. And that if criminal charges are to be brought against
4 a murderer, and also possibly against someone who
5 assisted the murderer, that it would be brought as part
6 of the same case.
7 A. Well, that would be the determination, as it were, for
8 the Director of Public Prosecutions whether he wished to
9 run with it as a separate murder -- assisting offenders
10 as running with the actual murder investigation itself.
11 Q. Yes, but it would be --
12 A. But it would be investigated as a whole, yes.
13 Q. In other words, that if a file -- that police would
14 investigate it as one incident, as an investigation into
15 one incident, and that the file would then go to the DPP
16 and it would determine in what way to proceed to court?
17 A. Well, I think there would be an element of choice there
18 whether you incorporated it into the actual murder
19 investigation which was specific to an actual location
20 and time or whether you took this other incident, as it
21 were, albeit related to the actual murder, and treated
22 it as a separate investigation.
23 Both obviously would be read together as part of the
24 prosecution's focus whenever it would come to actually
25 determining what charges and in what way the case would
70
1 actually be run.
2 So I would be relaxed in terms of it being seen as
3 being investigated and incorporated into the murder
4 inquiry or investigated as a separate incident, with the
5 two files going forward to the Director of Public
6 Prosecutions for him to have full knowledge of what the
7 sequences of events were, both at the time the murder
8 occurred and the subsequent activities of an individual
9 to assist those that were suspected of a murder.
10 THE CHAIRMAN: So that the Director would be able to
11 consider both files together?
12 A. That's correct, Mr Chairman. He would have the benefit
13 of seeing what the chronological activities were, but
14 I wouldn't necessarily, as the ACC, insist that it all
15 be dealt with under the one murder file, but the two
16 files together would still provide, as it were, the full
17 chronological detail of what actually happened and what
18 subsequently happened in respect of any of the suspects.
19 THE CHAIRMAN: So he would be able to see what, if any,
20 bearing the one would have on the other?
21 A. That's correct.
22 MR McGRORY: Let's look at investigative priorities in the
23 context of the murder.
24 Here we have evidence from Tracey Clarke identifying
25 a number of people kicking Robert Hamill on the ground
71
1 while he was unconscious and jumping on his head.
2 These, by any definition, are the accused murderers of
3 Robert Hamill.
4 The police also have information -- in giving that
5 information to the police, she also tells them, "But
6 there is also one of those policemen who is ringing this
7 fellow Hanvey. He is boasting about the fact that he
8 will be all right because there is a policeman ringing
9 him". So that's absolutely integral to the evidence
10 that is coming forward from Tracey Clarke, firstly,
11 about Mr Hanvey, and that if the police want to support
12 her evidence in respect of what she saw Hanvey do, do
13 you agree that the information about the contact between
14 him and the policeman is directly relevant to that
15 allegation?
16 A. Certainly there's a relevance there and, as I say, it
17 would run through the whole of the witness's evidence,
18 in other words, as to her credibility.
19 You would have to consider, as it were, not only
20 what she said she witnessed at the crime scene, but also
21 subsequently the evidence that she was prepared to give
22 relative to Atkinson.
23 Q. Exactly. So in terms of investigative priorities, the
24 police would want to nail the allegation that the
25 policeman was in contact with a murderer as quickly and
72
1 as efficiently as possible?
2 A. Well, one would expect it would be incorporated, yes, in
3 the entirety of the investigation.
4 Q. You see, what happened in this case is that the fruits
5 of the telephone billing are made available to the
6 police also in the month of May 1997, and when the
7 police officer is interviewed on 9th September 1997, the
8 suggestion that he had been in contact with
9 Allister Hanvey is put to him, but what the interviewers
10 do not do is ask him to explain in that interview how he
11 could have been in telephone contact hours after the
12 murder with Allister Hanvey, one of the suspected
13 murderers. He is not -- the telephone call is not put
14 to him in that interview.
15 I am asking you: is that not an astonishing
16 omission?
17 A. You know, I have difficulty answering, because I can't
18 reconstruct, as it were, what the actual interviews or
19 interviewers' intentions were at the time. I can see
20 the point you are making. The telephone billing would
21 have identified that a telephone call was made from one
22 telephone to another telephone. Who made the telephone
23 call would not be identified obviously.
24 Q. No.
25 A. It is a question certainly, as you say, that could be
73
1 put.
2 Q. Well, is it not a question that should have been put on
3 9th September?
4 A. Were you not telling me there that they actually did
5 refer to the telephone call --
6 Q. No, they referred to --
7 A. -- they made -- they called and made?
8 Q. -- whether he knew Allister Hanvey or had contact with
9 Allister Hanvey. The guy said he hadn't, the police
10 officer, but the investigators, the interviewers, do not
11 say to him, "But we have a telephone record of somebody
12 from your house phoning this guy's house within hours of
13 the murder".
14 Now, is that not an astonishing omission?
15 A. It's an omission, but, as I say, I can't reconstruct for
16 you what the investigators had in their minds at the
17 time. I accept it was an omission.
18 THE CHAIRMAN: Mr White is in the difficulty that he hasn't
19 seen the interview. Is that right?
20 A. That's correct.
21 THE CHAIRMAN: Would it help if you saw it?
22 A. The entire interview notes?
23 THE CHAIRMAN: Yes.
24 A. I don't know that it would advance anything,
25 Mr Chairman. As I say, as I don't know what the
74
1 interviewers' intentions were at the time, I would be
2 second-guessing those, but I accept what Mr McGrory is
3 saying, that it appears to be an omission, yes.
4 THE CHAIRMAN: If you would like him to read the interview,
5 we can break off earlier so that Mr White can look at
6 it.
7 MR McGRORY: I think that opportunity should be taken, sir.
8 THE CHAIRMAN: Sorry to place an extra burden on you,
9 Mr White, but it is probably as well that you shouldn't
10 be asked to comment on something you have not really had
11 a chance to think about.
12 A. Thank you, Mr Chairman.
13 THE CHAIRMAN: We shall break off until 2.10 pm.
14 (12.50 am)
15 (The luncheon adjournment)
16 (2.10 pm)
17 THE CHAIRMAN: Yes, Mr McGrory?
18 MR McGRORY: Thank you, sir.
19 Now, Mr White, have you had an opportunity to look
20 at the 9th September interviews of Reserve
21 Constable Atkinson by Superintendent McBurney and
22 Detective Inspector Irwin?
23 A. I have indeed, Mr Chairman.
24 Q. I think there were two interviews that evening. If we
25 could turn to page [61256], which is page 1 of the
75
1 second interview, which re-commences at 9.19 pm.
2 THE CHAIRMAN: What is the date of the interview?
3 MR McGRORY: 9th September 1997.
4 THE CHAIRMAN: Thank you.
5 MR McGRORY: It is page [61256]. This is the commencement
6 of the second interview that evening.
7 THE CHAIRMAN: This is Mr McBurney's interview?
8 MR McGRORY: Yes, Mr McBurney and Detective Inspector Irwin
9 interviewing Reserve Constable Atkinson.
10 A. The pagination on my documents is somewhat different
11 from that on the screen. My documents start with
12 09509. So if you go by the page, maybe.
13 Q. I think that's easier. Do we have a page 1 of that
14 interview beginning at 9.19? Do you have that to hand?
15 THE CHAIRMAN: Do you have page 1, Mr White?
16 A. I am just looking, Mr Chairman, here. It doesn't seem
17 to flow in the line of --
18 MR McGRORY: On the screen is page 1 of the interview to
19 which I am referring.
20 THE CHAIRMAN: Can you work from the screen, Mr White?
21 A. I will indeed, Mr Chairman, yes.
22 MR McGRORY: That's the first page of what I am going to
23 tell you is a 31-page interview. The transcript runs to
24 31 pages.
25 A. It is marked on my document as 09510.
76
1 Q. You have page 1 of it, anyway --
2 A. I have indeed.
3 Q. -- in hard copy in front of you?
4 A. Yes.
5 Q. That's helpful. About halfway through the interview on
6 page 16 -- not for your purposes, Mr White, but for the
7 rest of us that's [61271].
8 A. Yes.
9 Q. The interview turns to the question of a relationship
10 between this Reserve Constable Atkinson and
11 Allister Hanvey.
12 A. Yes.
13 Q. You see about a third of the way down he is asked does
14 he know Allister Hanvey?
15 A. Yes.
16 Q. What was your experience about the basis upon which the
17 information was obtained?
18 A. That's what I am trying to answer you. If it was -- you
19 will forgive me. It is some ten years past now since
20 I was dealing with applications of this nature. We had
21 a lot of rules that were applicable to different pieces
22 of information that came our way, and if I could refresh
23 my memory from, as it were, the instructions that were
24 available at the time, it will make it quite clear
25 whether or not the telephone billing of the nature it
77
1 was provided by BT was confidential and therefore
2 caveated, or whether or not it could be used as
3 evidential material, which would answer your question.
4 In other words, if Mr McBurney would have it
5 available to put on the table as a piece of evidence.
6 THE CHAIRMAN: Do you have any information about this?
7 MR UNDERWOOD: We don't. We had the greatest difficulty
8 disentangling the information in the form that it came
9 in at all. Certainly what we have has no caveat on it,
10 but that's far from conclusive.
11 But we have asked Mr Wolfe to check on this via the
12 PSNI. We will come back with something.
13 THE CHAIRMAN: Thank you.
14 MR McGRORY: Say there was no caveat on it, then can I take
15 it you would have expected the fact of the telephone
16 call to have been put to the officer at this interview?
17 A. Having read the interview -- and I stress I only had the
18 one read at it as such -- I can see what in essence
19 I think Mr McBurney and the interview team were
20 approaching.
21 One was to establish whether or not there was any
22 contact or knowledge between Atkinson or Hanvey either
23 on a social basis. They then lead on through to the
24 point you say whether or not there was any contact
25 directly over the issue which was the murder of
78
1 Mr Hamill, and then, thirdly, to the specific issue of
2 whether or not there had been any telephone contact.
3 Now, if the billing had been available and was
4 capable of being put on the table, then that is one
5 avenue Mr McBurney could have followed.
6 On the other hand, you could read into it that he
7 was actually waiting to see what Mr Atkinson would
8 choose to do relative to him having put the issue to
9 him, that, "Yes, there was telephone contact, and we now
10 wish you to produce your telephone billing".
11 You know, if Atkinson chose not to produce it or say
12 he didn't have it or whatever else, it is an issue, but
13 the telephone billing itself, as I think we said before
14 lunch, was simply an indication that a call had been
15 made from one telephone number to another telephone
16 number. It didn't give Mr McBurney any indication at
17 all as to who actually made the call or received the
18 call
19 Q. No, but indeed Mr McBurney has quite skilfully, I would
20 suggest, locked Reserve Constable Atkinson into
21 a statement that, in fact, "I would have had no reason
22 to contact this guy. I hadn't spoken to him since last
23 July", but there is your golden opportunity as
24 an investigator, subject to checking out whether or not
25 you are able to use the material, to hit him right there
79
1 and then, "How come somebody from your house phoned his
2 house within hours of this murder, of this incident?"
3 So do you agree that, subject to him being allowed
4 to use the material in that way, there was the point at
5 which he should have done it?
6 A. Well, I think he actually took him to that point. He
7 indicated to him that there was information available to
8 him that a contact had been made, that it had been made
9 relevant to the clothing or the destruction of clothing.
10 Q. Yes.
11 A. And he put it to him it had been made by Atkinson to
12 Hanvey. Now, he was making that without any capacity to
13 make that allegation, other than the statement made by
14 Witness A --
15 Q. Yes.
16 A. -- that Atkinson had been contacted. He did indicate to
17 him that he was coming back to interview him further
18 once the telephone bill was produced by Atkinson.
19 Q. You see, this is the problem. What he goes on to do
20 then is to ask Atkinson for his telephone records. He
21 doesn't declare his hand to Atkinson in this interview
22 that, in fact, he already knows there was a telephone
23 call that morning.
24 A. Well, in my recollection -- and I stress again it is not
25 100% -- if there was a caveat on him, then he couldn't
80
1 take that line of making that, as it were, an available
2 piece of evidence.
3 Q. But, of course, what, in fact, happened here is that
4 Atkinson had the opportunity to then go and fix up
5 an alibi for the phone call which turns out to have been
6 fake.
7 Now, are you aware of that?
8 A. Well, in reading the second statement or second
9 interview, he certainly has come back with the
10 indication that it was his wife or somebody else had
11 made the call.
12 Q. Yes.
13 A. But, I mean, it still wouldn't, I don't think, have
14 advanced the investigation at that particular point in
15 the first interview. McBurney had put it to him as
16 regards the issue of contact. He had put it to him as
17 regards the issue of contact per telephone, and it had
18 been denied.
19 To simply say, "There is a telephone bill that says
20 a telephone call was made from your house to the Hanvey
21 house", as I say, would have led, one would suppose from
22 what his previous answers had been, to simply, "Yes,
23 I accept a call has been made, but it wasn't made by
24 me".
25 Q. But, you see, the difference is when he comes back in
81
1 October --
2 A. Yes.
3 Q. -- he comes back with the confidence that when he says
4 the McKees made the phone call, that the McKees are
5 going to back him up.
6 A. Right.
7 Q. Had he been asked about this on 9th September, he had no
8 opportunity to go and speak to the McKees to get it
9 backed up and that's where I suggest --
10 THE CHAIRMAN: That's a non-sequitur. He could have said,
11 as Mr White says, "Well, I accept there is a phone call.
12 I didn't make it". It would still have given him the
13 opportunity to go and find out what support he could
14 give.
15 MR McGRORY: Maybe not, if he is lying.
16 THE CHAIRMAN: He wouldn't have lost an opportunity to do
17 that.
18 MR McGRORY: Oh, no.
19 THE CHAIRMAN: That's what you were suggesting.
20 MR McGRORY: I am, sir. I still, sir, suggest the concept
21 is a valid one, which is that, on 9th September, if he
22 is lying about the McKees -- which I suggest there is
23 plenty of evidence now before this Tribunal that he
24 was -- then he is not going to give that.
25 If he is thinking it up off the top of his head, if
82
1 he lies about it on the spot, he has no belief or
2 knowledge that the McKees are actually ever going to
3 back him up. So the best point at which to ask him is
4 when you have got him there and you have got the
5 information, because what happens is, he goes away
6 between September and October, speaks to the McKees,
7 says, "I need you to make a false alibi on my behalf".
8 He goes back in October. He then confidently tells
9 Superintendent McBurney and Irwin, "Oh, the McKees made
10 that", and they go and the McKees back it up, but had he
11 been asked on 9th September, he almost certainly
12 wouldn't have done it.
13 THE CHAIRMAN: Done what? Gone to the McKees?
14 MR McGRORY: No. He wouldn't have been able to tell
15 Superintendent McBurney that the McKees made it.
16 THE CHAIRMAN: That's perfectly true, but his case is that,
17 at the time, he didn't know of the telephone call. He
18 was asleep. That's the point I am making to you.
19 Mr White says, "Well, he could have said, 'I don't
20 know. I can't tell you at this stage' and still made
21 enquiries".
22 MR McGRORY: But he was not asked.
23 THE CHAIRMAN: Well, I think you had better move on to your
24 next point.
25 MR McGRORY: Let me ask you, please, ACC White -- is that
83
1 the correct term? Are you retired now?
2 A. Mr White.
3 Q. I just want to ask you about the meeting on 12th May to
4 which you were referred by Mr Underwood this morning.
5 The memorandum or journal entry of ACC Hall is at
6 page [74231].
7 The entry is at 12th May, where he says:
8 "[Something] meeting at FHQ's".
9 Can you help us with that? Is that something
10 headquarters?
11 A. I think it is force headquarters.
12 Q. Yes, thank you.
13 "CC", that would be the chief constable?
14 A. Yes.
15 Q. "I/C", in chair, "also [something] CC, DCC", the deputy
16 chief constable?
17 A. Yes.
18 Q. "... and ACC". That would be you?
19 A. That would be me, yes.
20 Q. "Re allegations against Reserve Constable Atkinson ...
21 by Miss S (sic) Clarke."?
22 A. Yes.
23 Q. This is a meeting on 12th May. Can you tell us what
24 sort of meeting this was or what it was about? This is
25 a very high level meeting.
84
1 A. Going by the people present, you could say that, but
2 personally I can't recall the meeting, you know. It
3 hasn't remained in my memory as regards the meeting
4 taking place.
5 Q. You see, the reason Mr Underwood had asked you about
6 this is in your first statement to the Inquiry, which is
7 at page [81256] at the very bottom paragraph, which is
8 not numbered. You said:
9 "I was not aware that allegations were made
10 against", I presume that's Reserve Constable Atkinson,
11 "from the outset and were supported by third party
12 material in the form of telephone billing and I was not
13 briefed on the details of the investigation. I did not
14 have any specific meetings with Mr McBurney about this."
15 I just want to suggest to you that this entry would
16 suggest otherwise, because you have attended a meeting
17 on 12th May with the chief constable and the deputy
18 chief constable re allegations against R/Con Atkinson --
19 A. Yes.
20 Q. -- Portadown by Miss Clarke.
21 Now, forgive me, but this has to have been about
22 a lot more than whether or not you should authorise the
23 request for the telephone records?
24 A. I would take that as foregone, you know, whether or not
25 it should be investigated, as you say, by the Complaints
85
1 & Discipline people or what line the inquiry should
2 actually follow, but, you know, all I can say is I have
3 no personal recollection, as it were, of it taking
4 place. I apologise for that, but I can't take the issue
5 any further in that respect.
6 I'm not saying it didn't take place by any means.
7 I fully accept Mr Hall's record that it did, but I just
8 can't place it in my own memory calendar.
9 Q. But do you agree it wouldn't have taken a meeting of
10 a chief constable, a deputy chief constable and ACC of
11 Crime to authorise the telephone bill?
12 A. Oh, no, no, no.
13 Q. Of course, it would be quite proper that the very
14 highest echelons of the police force --
15 A. Yes.
16 Q. -- are being informed at that there is an allegation
17 that a reserve constable has been tipping off one of the
18 murderers in this case.
19 A. It would be taken extremely seriously and it would have
20 been a new dimension entirely to this investigation.
21 Q. Yes. Now, can I turn just, please, to another document,
22 which is at [15385]? It begins at that page. You refer
23 to this document in your statement. This is a document
24 which you drafted. If you scroll through to the last
25 page of it, please, which is [15389], that's your
86
1 signature?
2 A. It is indeed, yes.
3 Q. Now, this is a memorandum that you drafted. You have
4 said you drafted it?
5 A. Yes.
6 Q. Your signature is on it?
7 A. Uh-huh.
8 Q. Do you see the date of it there, 18th December --
9 A. 18th December.
10 Q. -- 1997?
11 A. Yes.
12 Q. Now, the top of the first page, if we go back to
13 [15385], it says:
14 "Subject: meeting with Robert Hamill's family -
15 Monday 24.11.97."
16 I am going to suggest to you that that was a meeting
17 that the Secretary of State Mo Mowlam had with the
18 Hamill family?
19 A. Yes.
20 Q. Do you recollect that subsequent to that meeting you
21 were asked by the Command Secretariat for some
22 information?
23 A. Normally it would be in response to a series of
24 questions that would have arisen from the Secretary of
25 State to the chief constable.
87
1 Q. But do you remember being asked by the chief constable's
2 office, or even Mr Flanagan himself, to do him a memo on
3 this?
4 A. No. As I say, it would have come in a written format
5 probably with the questions laid out and more or less
6 responded to in the same manner.
7 Q. Do you have a personal recollection of this happening in
8 this case?
9 A. Other than what's in front of me here, as I say, it
10 wasn't the only thing occupying my attention at the
11 time.
12 Q. It is a very detailed document. It runs to five pages.
13 There are quite a few headings.
14 A. Uh-huh.
15 Q. Can we take it that the request for the information was
16 made under similar headings?
17 A. It probably would have been, yes., uh-huh.
18 Q. We have "Press statements" at 1. Then we go on to 2,
19 "Suspension of police officers"?
20 A. Yes.
21 Q. So here we are now in December 1997. You are focusing
22 on the issue of suspension of police officers here, are
23 you not? You talk about this subject for a few
24 paragraphs.
25 A. The suspension issue wouldn't have been a question for
88
1 my department as such. That was a matter for
2 G Department.
3 Q. You say there:
4 "Please see a report from Superintendent xxxxxxxxxx."
5 A. Yes.
6 Q. Who was Superintendent xxxxxxxxxx?
7 A. Superintendent xxxxxxxxxx would have been the deputy in
8 charge of G Department. it would have been Complaints
9 and Discipline.
10 Q. We had a gentleman before you who was Assistant Chief
11 Constable for Complaints at the time, Hays?
12 A. Yes. He would have been his deputy.
13 Q. He would have been his deputy?
14 A. Yes, uh-huh.
15 Q. So Superintendent xxxxxxxxxx has done a report which was
16 obviously annexed to yours, because you say:
17 "Please see a report from Superintendent xxxxxxxxxx."
18 A. Yes. My staff officer would have requested off
19 G Department, as it were, an update as regard the issue
20 of suspension or in response, as it were, to the
21 question that had been posed.
22 Q. So quite clearly the Secretary of State is asking about
23 suspension?
24 A. That would appear to be the case, yes.
25 Q. It gives some consideration to that. Then over the
89
1 page, [15386], at 2.2 you say:
2 "Please note Superintendent xxxxxxxxxx's further
3 comments at paragraph 5 where he quotes an earlier reply
4 to the Secretary of State ..."
5 A. Obviously there had been correspondence between the
6 chief constable's office and G Department on the issue
7 of suspension which, as I say, we would have been
8 provided probably with a drop copy of.
9 Q. Do you accept then that at a very senior level in the
10 Police Service at the time, and indeed on request from
11 the Secretary of State, there is consideration being
12 given to whether or not Reserve Constable Atkinson, or
13 indeed anybody, should be suspended?
14 A. That would appear to be the case, yes.
15 Q. But, of course, a decision has to be taken not to
16 suspend at that time?
17 A. Well, either they are going to suspend the officer or
18 not suspend him. That's correct. You would weigh up
19 whatever was available in way of evidence to support the
20 suspension.
21 Q. So obviously somebody decided not to suspend at that
22 point?
23 A. That would appear to be the case.
24 Q. Now, could you go on -- we will go on down a bit please
25 in this document to page [15388], section 7.1 at the
90
1 very bottom of the page. There is the heading
2 "Relationship between Accused and Police Officer", in
3 the singular. Do you see that?
4 A. Yes.
5 Q. Now, can we assume then that the Secretary of State was
6 asking the Command Secretariat -- which is Mr Flanagan's
7 private office, isn't that right --
8 A. Yes.
9 Q. -- "What is the situation about a relationship between
10 an accused and a police officer?"
11 A. Yes.
12 Q. You say:
13 "This matter is the subject of a criminal
14 investigation and a file will be forwarded to the DPP in
15 due course."
16 A. Yes.
17 Q. "It would not be prudent to make any comment about this
18 at this stage, nor to pre-empt the decision of the DPP."
19 [15389].
20 A. Yes.
21 Q. Now, the first point of interest in this document, which
22 is December 1997, Mr White, is that you have written
23 a memo to the chief constable --
24 A. Uh-huh.
25 Q. -- in which you acknowledge that there is
91
1 an investigation into an allegation about contact
2 between an accused and a police officer?
3 A. Yes.
4 Q. Well, how does that fit with your evidence to the
5 Inquiry into 2006 that you had no knowledge of it?
6 A. This document here is a compilation of answers given by
7 other departments and, as it were, the police on the
8 ground in Portadown. So what I am simply reflecting
9 here is not that I have seen any crime file or the
10 content of it, but merely that a crime investigation is
11 underway and a DPP file will be forwarded in due course.
12 It's a statement simply of fact as to what is
13 intended to happen. It doesn't infer that I have read
14 or seen or had any dealings with the file.
15 Q. But should you not have made it your business at this
16 point to find out what the status of the investigation
17 into the policeman's conduct was?
18 A. No.
19 Q. Well, the Secretary of State is asking for the
20 information.
21 A. Well, you can see from my answer that discussion of
22 where and the content of the file was not a matter for
23 publication at that point in time, that the file would
24 make its way in due course through the normal channels
25 to the Director of Public Prosecutions.
92
1 You wouldn't be including anything in this here
2 which would be a discussion for the Secretary of State
3 as to what a criminal investigation was going to produce
4 or not produce.
5 Q. Well, do you accept there is a very big difference
6 between making something public and answering the
7 Secretary of State when she asks, "What is the status of
8 this investigation?"
9 A. Well, the status of the investigation is answered.
10 An investigation is underway and a file will be
11 forwarded to the Director of Public Prosecutions.
12 Q. Well, there is a lot of information, I suggest, which is
13 not in there, which would have been available to you?
14 A. The entire crime file, if I had asked for it, could have
15 been requoted, but, I mean, that was not the procedure.
16 Q. What about, "Well, the telephone billing records. There
17 is an allegation from Witness A who says there was
18 telephone contact and the telephone billing came up
19 trumps to some degree"?
20 A. I am sorry. There is maybe a misunderstanding between
21 us, but, as a police officer, I don't make available to
22 any politician, as it were, the content of any crime
23 investigation whilst that crime investigation is
24 underway.
25 As I say, in this most sensitive of investigations
93
1 here, it would have been very imprudent to start to put
2 in material that had not been put before the Director of
3 Public Prosecutions or, indeed, that might subsequently
4 be put before the court.
5 Q. But you were at least aware of the information?
6 A. I'm sorry. These questions as they would have been
7 listed would have been taken by my staff officer and
8 enquiries would have been made with the relevant bodies,
9 and this compilation answer would have been put
10 together.
11 I was aware there was an investigation ongoing, but
12 above and beyond that, as to the detail of the content
13 of it, I wasn't.
14 THE CHAIRMAN: Mr McGrory, in the kind of society we have,
15 are you suggesting it is open to the Secretary of State
16 to say to the police in effect, "I want to see your
17 books and learn all about this investigation"?
18 MR McGRORY: Well, I think the Secretary of State is
19 entitled to know a little bit more than the fact that
20 there is an investigation. We will see in a moment what
21 the Secretary of State was told.
22 THE CHAIRMAN: You had the witness's answer.
23 MR McGRORY: But at the very least, Mr White, your answer in
24 2006 that you were unaware of the issue is not
25 an accurate answer?
94
1 A. Not aware in detail, not aware sufficiently to comment
2 on any stages of the investigation. Aware that there
3 was an investigation underway is a lot different than,
4 as it were, being aware of the detail and the content of
5 that investigation or what stage it was actually at at
6 a particular time or what pieces of evidence were being
7 weighed or used by the investigating officers.
8 You know, bear in mind, Mr McGrory, my situation was
9 such that I couldn't and it was totally impossible to
10 keep in touch with every murder investigation to the
11 detail that you are inferring that I should be conscious
12 and aware of everything that was happening right across
13 the province.
14 Q. It is just, Mr White, that you said:
15 "I was not aware that the allegations were made."
16 You were aware that they were made.
17 A. I will accept that. I will accept that.
18 Q. Thank you. You see, the chief constable then replies to
19 the Secretary of State. Now, you are not -- I take it
20 this reply -- I will show it to you first. It begins at
21 page [15375]. It is dated 23rd December 1997.
22 A. Yes, indeed.
23 Q. On the next page, [15376], is what the Secretary of
24 State is told --
25 A. Yes.
95
1 Q. -- which is just:
2 "Relationship between some officers and some of the
3 defendants.
4 "This allegation has been included in the criminal
5 investigation and will be considered by the Director of
6 Public Prosecutions."
7 A. Yes.
8 Q. Now, that's in the plural, but I take it you didn't
9 draft this reply?
10 A. No, that's the draft, as you will see from the heading,
11 from the Command Secretariat for the signature of the
12 chief constable to the Secretary of State. I had no
13 knowledge or sight of that.
14 Q. Could the Secretary of State not have expected some more
15 detail, and more accurate detail, without necessarily
16 compromising the investigation, like, "Secretary of
17 State, there is evidence from an eye witness to the
18 murder who knows one of the suspected murderers. It is
19 being investigated. Telephone billing records have been
20 obtained. We are on the job", but at least that she is
21 aware: (i) of the seriousness of it; and (ii) that it is
22 being thoroughly investigated?
23 A. I am quite confident that in conversations with the
24 chief constable, and at other meetings, the Secretary of
25 State could have been given that, as it were, behind the
96
1 scenes insight as to where the investigation was going,
2 but it is not included on the paperwork here, nor would
3 I have included it on any paperwork.
4 Q. You see, this letter, if we go to the third page of it,
5 [15377], is signed by the chief constable.
6 A. Yes.
7 Q. So what is incontrovertible from this material in any
8 event is that the chief constable, as of December 1997,
9 was aware of this issue?
10 A. As it states there, but the Secretary of State -- and
11 I can't recall with certainty -- I think she was in
12 touch with the family as well in relation to these
13 matters.
14 Q. You see, this brings me to one of the complaints that
15 the Hamill family has, which is that the victim's family
16 remain utterly unaware of any evidence about a reservist
17 tipping off or contacting one of the suspected murderers
18 in this case until much, much later, the year 2000,
19 three years later.
20 Is a victim's family not entitled to be told, "There
21 is another dimension to this case about police
22 corruption, but we are on the job. We can't tell you
23 anything about it, but we are on the job"?
24 A. You could argue that there is an entitlement, but it
25 hadn't been our practice to go to families to give them
97
1 sort of indicators as to what particular lines of
2 enquiry were on going or being pursued at any particular
3 moment in time.
4 You could say now that it might be considered now to
5 be somewhat of an oversight, but that was the practice
6 at the time.
7 Q. One of the consequences of that, Mr White, is that the
8 family haven't got any information upon which to broaden
9 the scope of their complaint which was initially made
10 about the allegation of the police not getting out of
11 the Land Rover in time.
12 So what I want to ask you about is: where in all the
13 structures is there some mechanism to ensure that there
14 is accountability in the investigation of corruption
15 within the police?
16 The mechanism that we are aware of is supervision by
17 the ICPC.
18 A. Yes.
19 Q. Now, we are also aware that the chief constable
20 exercised his power under Article 8 in this case before
21 the information about the policeman came into the
22 system, but probably as a consequence of all the public
23 concern expressed about the Land Rover to refer this
24 case --
25 A. Yes.
98
1 Q. -- to the ICPC.
2 A. Uh-huh.
3 Q. Would you have expected -- I know you are ACC of
4 Crime --
5 A. Uh-huh.
6 Q. -- that the ICPC would have remained in supervision of
7 the entirety of this investigation?
8 A. It's an expectation, yes, that you could quite rightly
9 put. I am not sure what the relationship was, whether
10 they contained themselves simply to the Atkinson issue
11 or whether they overseen the whole of the investigation.
12 Q. But obviously the chief constable had sufficient
13 information to be concerned early on, within days of the
14 incident, to refer it under Article 8 to the ICPC?
15 A. I think the rules were quite clear there in relation to
16 the referral of matters that were certainly in the
17 public interest of that nature where serious allegations
18 or concerns were being voiced.
19 Q. Certainly the chief constable's office, as we can see,
20 was at least being kept appraised of developments --
21 A. Yes.
22 Q. -- and could, had it wished, have asked the ICPC to keep
23 a watching brief on the tipping-off allegation?
24 A. Well, that would have been a matter for the chief
25 constable and the head of G Department to advise him on
99
1 that matter.
2 MR McGRORY: Thank you.
3 A. Thank you.
4 Questions from MR EMMERSON
5 THE CHAIRMAN: Yes, Mr Emmerson.
6 MR EMMERSON: Mr White, I just want to ask you one
7 or two questions on behalf of the Director of Public
8 Prosecutions.
9 As ACC for C Department, you have told us that you
10 had overall responsibility for the department which,
11 amongst other things, was in effect the last port of
12 call before a CID police file was sent to the DPP --
13 A. Correct.
14 Q. -- for a decision as to whether the prosecutorial tests
15 were satisfied?
16 A. That was in relation to indictable offences.
17 Q. Therefore, the last port of call for conduct, the final
18 review of that file?
19 A. Yes.
20 Q. I just want to ask you about one or two short passages,
21 if I may, in your witness statements. Can I ask, first
22 of all, that page [81255] be brought up on the screen?
23 Now, you were taken earlier on by Mr Underwood to
24 the third full paragraph, the large paragraph, in that
25 statement --
100
1 A. Yes.
2 Q. -- in which, if I can simply paraphrase, you explained
3 the role of the ACC in connection with supervising
4 an SIO in decisions made on how to conduct
5 an investigation.
6 A. Yes.
7 Q. I want to ask you, if I may, about the first sentence of
8 the paragraph that follows. Having described that
9 relationship, you then go on to say -- this is the next
10 paragraph:
11 "Also, the SIO would be subject to legal advice from
12 the DPP ..."
13 Then there is reference to the relationship with the
14 ICPC.
15 A. Yes.
16 Q. I just want to ask you one or two simple, structural
17 questions about that relationship of legal advice
18 between the SIO and the DPP.
19 First of all, was it your understanding that insofar
20 as representatives of the DPP's department might give
21 advice to an SIO, it would be advice in the form of
22 a consultation in one form or another on questions of
23 law relevant to the prospect of a successful conviction?
24 A. That would be correct. It could be either done verbally
25 or come back in the form of a letter from one of the
101
1 Director of Public Prosecution's assistants saying, "You
2 have recommended the following charges, but your file is
3 short of the evidence in the following matters. Please
4 take statements relative such and such". So ...
5 Q. Pause there for a movement. I am going to pull this
6 apart in a little bit more detail in a moment, if I may.
7 Just to take that last answer, you are referring
8 there to a situation in which information or a legal
9 conclusion may come back from the Director's office
10 after the submission of a police file?
11 A. That's correct.
12 Q. Just pausing there for a moment, is it right that there
13 could be circumstances in which a legal consultation
14 might take place at this time, the time with which we
15 are concerned, both before and after the submission of
16 a police file?
17 A. Yes. On occasions, and not very often, the Director, if
18 it was a complicated case, would call for a meeting with
19 myself and the relevant senior investigating officers.
20 Q. This is before the submission of the file?
21 A. Usually after he has had the benefit, but, on rare
22 occasions, there would be a request -- it would probably
23 be in response to a request from myself that we would
24 meet with him to ...
25 Q. I am sorry to slow you down and unpack this --
102
1 A. Yes.
2 Q. -- but it is just important that we get the various
3 relationships clear.
4 A. Uh-huh.
5 Q. Before the submission of a police file, you said, on
6 very rare occasions there might be a consultation in
7 which legal advice or legal consultation would occur
8 between the two bodies?
9 THE CHAIRMAN: I think that slightly overstates it. Not
10 very often and, if before, rarely. The phrase 'very
11 rarely' wasn't used.
12 MR EMMERSON: I am concentrating on the period up to the
13 submission of the police file.
14 THE CHAIRMAN: I know you are. I am merely correcting
15 your --
16 MR EMMERSON: My paraphrase. I take the correction.
17 In the period up to the submission of the police
18 file, can you help us: did you say a moment ago that
19 would only occur if it was in response to a request from
20 you or from the police?
21 A. The prior meetings without the submission of a file
22 would have been the rare occasions when we would have
23 sought, as it were, to speak with the Director's office
24 as to what potential charges we might or might not be
25 seeking to prefer.
103
1 The other meetings that I was referring to usually
2 took place after the Director's people had seen the
3 initial crime submission.
4 Q. Concentrating then on the period before the submission
5 of the police file for a moment, just to be absolutely
6 clear, it would be dependent, that process, on a request
7 from either yourself or an officer within your
8 department, or the SIO, for a legal opinion as to issues
9 that were relevant to the prospects of the successful
10 prosecution?
11 A. Yes. It wasn't for the purposes of the Director or any
12 of the staff directing what nature of enquiries and
13 investigation we should conduct. It would simply have
14 been to satisfy ourselves as regards the legal
15 requirements in terms of the weight of evidence and
16 whatever else we were seeking.
17 So there was a clear firewall, if I can put it that
18 way, between what you could approach the Director on and
19 what, as it were, we had to handle for ourselves.
20 Q. This is the issue I want to explore with you.
21 Can you just explain to us your understanding of
22 that firewall between the issues that you could properly
23 approach the Director for legal advice on prior to the
24 submission of a police file and those you could not?
25 A. It is somewhat different, I understand, the procedures
104
1 today, where there is a much closer relationship.
2 Q. Yes.
3 A. The Director of Public Prosecutions, since I had
4 dealings with his office, was extremely protective of
5 the separation, as it were, between what the Director of
6 Public Prosecutions was required to do and that of
7 police investigations.
8 He made it absolutely clear that it was not within
9 his role, or the role of any of his staff, to give any
10 shape or direction to the police as regards the nature
11 of the enquiries we conducted, but that he would be
12 available to answer questions on the interpretation of
13 the law and on procedural issues where the weight of
14 evidence that we would need to be putting forward in
15 certain cases, as I say, would need to be inclusive in
16 the file, and if we couldn't reach those thresholds,
17 then we were unlikely to proceed with a prosecution.
18 Q. So matters such as the elements of the offence?
19 A. Yes.
20 Q. The evidence that would be necessary to establish those
21 elements as a matter of law?
22 A. And, you know, the nature of the witness evidence or
23 otherwise that you would need to have to produce that
24 that would reach his threshold.
25 Q. Yes.
105
1 A. In terms of deciding whether to take the case forward
2 for prosecution or not.
3 Q. But applying the prosecutorial test?
4 A. Exactly.
5 Q. So questions such as admissibility of evidence --
6 A. Yes.
7 Q. -- possible defences and so forth?
8 A. Exactly.
9 Q. But when it came to the day-to-day conduct of
10 an investigation, that was not a matter about which you
11 would seek direction from the Director's department. Is
12 that correct?
13 A. That's correct.
14 Q. Indeed, you had your own legal advisers should any legal
15 issues arise. Is that correct?
16 A. Yes, indeed.
17 Q. Turning to the position after a file had been submitted,
18 generally speaking would any legal conclusions of the
19 Director's department be communicated by means of
20 an interim direction or written communication?
21 A. That was usually the case. The interim directions would
22 have come through and then followed by the final. The
23 interim ones would have come through quite often with
24 maybe additional evidence being requested.
25 Q. Yes.
106
1 A. It was also a mechanism for keeping ourselves within the
2 time-frames that were laid down by Government for the
3 police to get from what you could call the date of the
4 incident to the submission of the file.
5 Likewise, the Director of Public Prosecutions had
6 a time-frame set for him to turn around his examination
7 of the file and for the case to be listed for hearing if
8 there was to be a case.
9 Q. Again in this context, could I ask, please, that you be
10 shown paragraph 8 of your second statement, which is
11 page [81661]?
12 Now, you are dealing here with the situation that
13 arises after the submission of a file to the Director's
14 office.
15 A. Yes.
16 Q. You say there:
17 "If the DPP's legal personnel find that they need
18 additional materials, for example, further statements,
19 that documentation would come back through the C2
20 department."
21 A. Yes.
22 Q. "It was a flexible system", you say. "The whole
23 objective was to make sure that the information put
24 before the DPP was the best that could be achieved given
25 the incident that you were investigating, the
107
1 circumstances of that investigation and the quality of
2 the witnesses that you had to support your case or
3 otherwise. Suggesting lines of investigation was a role
4 that was shared between the C2 department and the DPP."
5 Do you see that?
6 A. Yes.
7 Q. Again, I just want to unpack that in the light of the
8 firewall evidence that you gave a moment ago.
9 When you say that suggesting lines of enquiry was
10 a role that was shared between C2 and the DPP, can we
11 just step back for a moment and look that
12 chronologically?
13 A. Yes.
14 Q. You have told us, I think, that up to the moment of the
15 submission of the police file --
16 A. Yes.
17 Q. -- suggesting lines of enquiry was not regarded as part
18 of the responsibility of the DPP?
19 A. That's correct, yes.
20 Q. But it was part of the responsibility of C2 --
21 A. Yes.
22 Q. -- in reviewing the SIO's file before it was submitted
23 to the DPP?
24 A. That's correct. That's it.
25 Q. So that C2's role would then be to review the file.
108
1 Can I put it to you this way -- and to suggest any
2 additional lines of investigation which would be
3 necessary for one of three purposes: first of all, to
4 ensure that the best evidence was put before the DPP;
5 secondly, to ensure that the evidence in the file
6 supported the SIO's recommendation as to what charges
7 ought to be brought?
8 A. Yes.
9 Q. And, thirdly, to ensure that any possible additional
10 charges that had been overlooked by the SIO could be
11 made good in recommendations by the staff in your
12 department.
13 Is that a fair summary?
14 A. That's a fair summary. I think if I had included the
15 word "preceded" there, in relation to C2 and the DPP, it
16 would have put it into context.
17 Q. Yes.
18 A. It was C2 up until the time that the file was submitted.
19 Thereafter, it was requests or directions from the DPP
20 back through C2 being shared with, as it were, the
21 investigators.
22 Q. That sequence is helpful clarification, if I may.
23 Immediately after, then, the file is submitted to
24 the DPP's department, in picking up your point about
25 suggesting lines of enquiry at that stage --
109
1 A. Yes.
2 Q. -- so that we are clear, is it right then, as far as you
3 understood it, that the role of the DPP at that point
4 was to identify any additional lines of enquiry over and
5 above those that had been missed by the SIO and by your
6 team, if such a thing were to occur, which were
7 essential to enable a fully-informed decision to be
8 taken as to whether or not to prosecute or on what
9 charges?
10 A. That would be correct, because we may have missed, as it
11 were, the potential ingredients of another offence that
12 the Director's staff would have spotted, but it might
13 require an additional piece of evidence or evidence of
14 a different nature from different people.
15 So that's where that dialogue would have taken place
16 and that's the nature of the, as it were, sharing and
17 the recharging of the investigating team to do further
18 work.
19 Q. And at that stage, again you would expect anything of
20 significance to be in the form of an interim direction
21 to the chief constable?
22 A. It would have been in that formal sense, yes.
23 Q. In response to an interim direction, do we understand
24 the position to be that C2 would be responsible for then
25 furnishing the information in response?
110
1 Is that correctly understood?
2 A. Yes.
3 Q. Finally, please, could I ask you to look at page 81633
4 and paragraph 14? You talk in the first sentence of
5 that paragraph of certain other specific roles that you
6 had in relation to the forensic budget and so forth?
7 A. Yes.
8 Q. Just about halfway down paragraph 14 you say this:
9 "My job was also to accompany any officers to the
10 DPP if he had directed to hold a discussion with them on
11 a controversial subject, such as the quality of
12 witnesses."
13 Can I pause there for a moment? Is that something
14 that would happen only after the submission of a police
15 file?
16 A. Very much usually towards the end, as it were, of the
17 decision-making processes within the Director's office.
18 Q. So after the file had been seen and considered, after
19 any interim directions had been issued and complied
20 with, when a final evaluation was being made, for
21 example, of the reliability and/or quality of witnesses?
22 A. Yes.
23 Q. You go on to say:
24 "Similarly, if things had gone wrong with any
25 investigation and the DPP wished to express his
111
1 dissatisfaction, he would request that I attend to hear
2 what he had to say and take corrective action
3 afterwards."
4 A. That's correct.
5 Q. Reading that on its face and in isolation, it might be
6 taken to suggest responsibility for the lines of
7 investigation conducted at an earlier stage or some
8 process of consultation in relation to that.
9 Could you just help us as to what you mean by that
10 sentence?
11 A. Well, if it was the case that evidence had been omitted
12 from the file, or that, shall we say, the wrong
13 impression had been given in the SIO's submission that
14 had resulted in misdirecting the thoughts and processes
15 of the Director's staff, the Director was not behind the
16 door, as it were, of asking me to attend and let me
17 know, as it were, his dissatisfaction with those
18 procedures and to investigate the issues and make sure
19 that the corrective measures were put into place.
20 Q. So this is not a situation where, in the ordinary course
21 of events, there is an item missing from a file --
22 A. No, no.
23 Q. -- and an interim direction is issued and complied with?
24 You are talking about something where there appears
25 to be some serious lapse of professionalism.
112
1 Is that what you are suggesting?
2 A. It may have usually been in the interface between what
3 you would call the intelligence world and the evidential
4 world, that if some piece of intelligence perhaps had
5 not been made available that subsequently he became
6 aware of --
7 THE CHAIRMAN: Sorry. I interrupted you. Suppose, for
8 example, the police had failed to interview certain
9 obvious witnesses --
10 A. Yes.
11 THE CHAIRMAN: -- might you expect that the director would
12 say in effect, "This is not good enough"?
13 A. Very much so, sir. He would have been addressing that.
14 THE CHAIRMAN: It all depends on what has gone wrong what he
15 tells you?
16 A. How serious it was. Certainly it would have ranged
17 across a number of topics, but quite often, as I say, in
18 that interface between intelligence and evidence.
19 MR EMMERSON: Just to take up the Chairman's point in the
20 example he gave you a moment ago, let's say there was
21 a very obvious witness statement missing, a pathological
22 report or something which was a plain error on the file.
23 The first stage, if I have this right, would be for
24 the member of the Director's staff responsible simply to
25 issue a interim direction to have it put right?
113
1 A. That's right.
2 Q. Would there then be circumstances where, after that, and
3 over and above that, the Director might seek a meeting
4 in order to ensure that similar things did not occur in
5 the future?
6 Is that what you are suggesting?
7 A. Yes. Perhaps an entry in a journal, because the
8 Director had the responsibility of the disclosure issue.
9 If it so happened that that disclosure was pertinent to
10 the defence and hadn't been made, then his office was
11 embarrassed and, through his office, in a sense the
12 Police Service is held accountable.
13 Q. Just finally on that, the example you give of failure to
14 provide information that ought to have been made
15 available on disclosure is obviously an issue which
16 falls squarely within the prosecutorial function.
17 A. Yes.
18 Q. The distinction you referred to as a firewall at the
19 earlier stage of the process, was that a distinction
20 that also found reflection in any interface between, for
21 example, yourself and the Director thereafter?
22 A. I am sorry. I am not following you.
23 Q. You referred earlier on to there being, in effect,
24 a division of functions that both sides respected and
25 understood in the period up to the submission of
114
1 a police file?
2 A. Yes.
3 Q. You have explained the process by which the Director's
4 staff might seek to plug holes that were apparent and
5 obvious once a file had been submitted through the issue
6 of interim directions, but you are speaking here about
7 a third and perhaps more serious category of cases where
8 something seems to have gone wrong.
9 A. Yes.
10 Q. The example you gave us was material that would
11 otherwise fall to be disclosed by the prosecutor --
12 A. Yes.
13 Q. -- in the course of criminal proceedings. Therefore,
14 something which, on the face of it, would fall on the
15 prosecutorial side --
16 A. Yes.
17 Q. -- of that division of function that you have referred
18 to.
19 A. Uh-huh.
20 Q. Is that -- what I am asking you is: was that same
21 division of function recognised in those consultations
22 and interfaces as well?
23 A. It was indeed.
24 MR EMMERSON: Would you just give me a moment?
25 Yes. Thank you.
115
1 THE CHAIRMAN: Yes, Mr Berry?
2 Questions from MR BERRY
3 MR BERRY: Mr White, I am Greg Berry. I appear for
4 Andrea McKee and I want to ask you some questions.
5 A. Right.
6 Q. Could we have page [81257], please? Now, this is from
7 your first statement. You refer, I think, to
8 a discussion you had with Mr McBurney --
9 A. Yes.
10 Q. -- and the need -- just in the first paragraph -- for
11 an independent witness of a credible nature --
12 A. Uh-huh.
13 Q. -- that could undermine an alibi that's referred to
14 there.
15 A. Yes.
16 Q. Do you remember that? Yes?
17 A. I do, yes.
18 Q. Was that in the context of the investigation having
19 reached a little bit of a logjam, if I can use that
20 term?
21 A. This was some -- this happened I think in 2000 or
22 thereabouts.
23 Q. Yes.
24 A. It was prior -- obviously the logjam had been there.
25 Mr McBurney had foreseen what he had anticipated to some
116
1 degree, as he explained it, that the relationship had
2 broken down, and that this was a mechanism for
3 unblocking the logjam in terms of the statements that
4 had previously been made.
5 Q. Yes. I think the feeling -- you refer to it in
6 paragraph 26 of your subsequent statement -- was that
7 Mrs McKee would be less under the influence of her
8 husband and Mr Atkinson if the relationship had broken
9 down effectively. Is that right?
10 A. That was my understanding from Mr McBurney, that that
11 was his line of thinking.
12 Q. The follow-on from that, if you like, was that she would
13 therefore be more receptive to an approach by police
14 trying to get to the truth of this matter?
15 A. Certainly McBurney was of the view that there had been
16 lies told in terms of the statements made, and this was
17 an opportunity to sort of unpick that situation and to
18 perhaps allow a prosecution against Atkinson to go
19 forward.
20 Q. Yes. You are aware, I assume, that, in fact, Mrs McKee
21 did cooperate with Mr McBurney and then with Officer K
22 and provided statements?
23 A. I understand that to be the case.
24 Q. You are aware, I assume, that she incriminated herself
25 and was prosecuted?
117
1 A. I'm aware of that, yes.
2 Q. In fact, her husband did the same.
3 A. That's correct.
4 Q. She received a suspended sentence and he received
5 a sentence of immediate custody.
6 A. I understand that to be the case.
7 Q. Now, I want to perhaps ask you about this and I hope
8 I don't put it too crudely.
9 Given your level and rank at the time, would you
10 have been aware, for example, if any sort of deal -- if
11 I can put it as crudely as that -- had been offered to
12 the McKees?
13 I am asking you, would you have been aware of that,
14 and then I am going to move on to a second part of that.
15 A. I am not aware of any deal having been offered.
16 Q. Yes.
17 A. Whether or not such a deal, if there was such a deal,
18 would have been discussed with me would have been
19 a matter for the senior investigating officer.
20 If it was to impact, as it were, on the prosecution
21 process thereafter, there is a possibility that that
22 would have been a prior discussion.
23 THE CHAIRMAN: So it might depend on what it was, might it?
24 A. Yes.
25 MR BERRY: You are certainly not aware of anything?
118
1 A. I am not, no.
2 Q. Can I just press you on this, Mr White: given the
3 gravity of the matter, presumably you would have
4 expected to have been informed, had there been something
5 of what I have crudely called a "deal" on offer?
6 A. I certainly would have expected and would have foreseen
7 it would certainly have an impact when it would come to
8 the presentation of the file as regards the status of
9 the witness at that particular time.
10 Q. Yes. You have indicated, just to be clear, that you are
11 not aware of any sort of a deal being done for the
12 McKees in relation to this case?
13 A. No, there was no deal and, as I say, in relation to the
14 discussions with Mr McBurney, it was simply to do with
15 the -- as I say, his anticipated interview with Ms McKee
16 and with the authority to travel to another
17 jurisdiction.
18 Q. Were you ever informed of something along the lines that
19 Mrs McKee basically wanted to tell the truth, something
20 as rather old-fashioned and simple as that?
21 A. That certainly was the belief of Mr McBurney, that that
22 was her desire.
23 Q. There was nothing you encountered that disabused you
24 from that belief?
25 A. Nothing.
119
1 MR BERRY: Thank you, Mr White.
2 THE CHAIRMAN: Yes, Mr Adair?
3 Questions from MR ADAIR
4 MR ADAIR: Thank you.
5 Mr White, I just want to deal very briefly with
6 a number of discrete points.
7 You have told us that part of your department's
8 function was quality control before the file went to the
9 DPP.
10 The file that you would receive in a case such as
11 the Hamill murder, would that have included all the
12 various statements from the various civilian and police
13 officers who, for example, gave a description of
14 Hanvey's clothing?
15 A. It would, yes.
16 Q. Would it also have included the search records and
17 statements from the searchers?
18 A. It should have, yes.
19 Q. So those examining -- can you help us about this --
20 would those examining the file be in a position to see
21 what should or should not have been done by the
22 searchers at that time?
23 A. They would simply have the written record to go on, you
24 know. How far a search is conducted, quite often
25 officers confine themselves to what you would call the
120
1 positive issues, those things that they find. They
2 don't list in great detail areas that they have searched
3 where perhaps something hasn't appeared or they have not
4 found.
5 So statements tend to be condensed, as it were, and
6 strictly related to the actual finding of something
7 that's material to the investigation.
8 Q. Would you have received in your file statements -- for
9 example, we know in this case that Andrea McKee met with
10 police officers on a roadside, that ultimately she came
11 down to the police station and was present when
12 Tracey Clarke made a statement setting out the
13 allegations against Atkinson.
14 A. Uh-huh.
15 Q. Okay? Now, would those statements have been in the file
16 that you received?
17 A. They should have been, yes.
18 Q. So those reading the file would not only have the report
19 from Mr McBurney setting out his thoughts, but also the
20 statements upon which that report was based?
21 A. Correct.
22 Q. Including, if I am right in what I am saying, those of
23 Andrea McKee, Tracey Clarke, Mr McAteer and whoever else
24 was involved with Andrea McKee?
25 A. Yes.
121
1 Q. So those -- well, does it -- I mean, are all the
2 statements read -- maybe you have told us this -- are
3 all the statements read?
4 A. Yes. The whole purpose and those that were reading the
5 statements, as I say, came from an investigative
6 background, having been time-served, as it were, SIOs
7 themselves.
8 So they had a good feel for what was actually
9 required, and they would have read the statements in
10 conjunction with the statements from the investigators
11 themselves as to the chronology of the investigation.
12 So issues would have been matched up and would have
13 been cross-checked in that fashion.
14 Q. Lest there is any doubt about it, as we know, the
15 allegations concerning Atkinson were also dealt with and
16 annexed to the file.
17 Would that have come to you as well?
18 A. The two files, certainly, as I say, one would have
19 expected them to be together, yes.
20 Q. So any statement that had subsequently made by
21 Andrea McKee -- as we know, she made what we are saying
22 is a lying statement to Mr Irwin.
23 A. Initially.
24 Q. Would that also have been available to your quality
25 control people?
122
1 A. It should have been, yes.
2 Q. You also told us that the system depends obviously on
3 the integrity of the senior investigating officer in
4 these sorts of cases.
5 In your own words -- and I know we are dealing with
6 a man who is now dead, so I don't want you to be
7 influenced by that fact, because sometimes we all are
8 when we talk of people who are dead -- can you just tell
9 the Panel in your own words anything about the
10 integrity, professionalism or otherwise of Mr McBurney?
11 A. Mr McBurney I would say, Mr Chairman, was a competent,
12 professional police officer. He lived, in a sense, one
13 would say, for his work as a crime investigator. Some
14 would say that he was of the old school, that he wasn't
15 interested in what you would call promotion if it was
16 going to take him away from sort of the hands-on
17 investigative side of work. It was a case of "don't put
18 me in an office" sort of scenario.
19 He was an individual, I would say, who got good job
20 satisfaction from the successes of those that he
21 commanded, and, in that sense, he demanded a sort of,
22 I would say, high standard of integrity from those that
23 he dealt with and got it, because there are many senior
24 officers serving today who received a dressing down from
25 McBurney as regards the quality of their work and will
123
1 still remember it.
2 He wasn't an individual that sought media attention,
3 and whilst he was very open and approachable as regards
4 problems that his staff would have, he had been brought
5 up in an ethos where he kept his own personal issues to
6 himself. You know, he would have been there for other
7 people, "But don't take me -- don't pry into my own life
8 too much."
9 Q. Was he -- we know in this case, Mr White, that a policy
10 file was started --
11 A. Yes.
12 Q. -- in the murder investigation, and then it would appear
13 that the policy file was not filled in by Mr McBurney
14 very much, if at all.
15 In 1997, were policy files a fixed thing, or was
16 that in transition, or was it just starting? What was
17 the position about policy files back in 1997?
18 A. Policy files had their origins in investigative logs and
19 things of that nature. Policy files in a sense came
20 from an era where there was no policy file, Mr Chairman.
21 Investigations were a much more simplistic situation,
22 but with the advent of the Criminal Prosecutions
23 and Investigations Act it started to impose on the
24 Police Service a tremendous amount of record-keeping,
25 procedural issues.
124
1 The Association of Chief Police Officers, as I said
2 before, was getting deeper involved, through crime
3 committees and things, in looking at the whole
4 procedural and training aspects of officers. So I would
5 say from sort of the mid-1990s through to the end of --
6 to 2000, the whole of the policing service went through
7 a fairly steep learning curve and transition, and policy
8 files were introduced -- my recollection would be they
9 were not an absolute requirement. There was an element
10 of flexibility as to whether a senior investigator
11 opened and maintained one.
12 They were made absolute, or, shall we say, a must,
13 I think by the end of 1997. There was instructions out
14 that policy files should be the norm and not the
15 exception.
16 Really from there on in, obviously as the murder
17 manual and all progressed policy files became
18 an integral part of investigations, they were
19 a disclosable document.
20 When the whole review process of crimes/murders came
21 into being, the policy file was very much an essential
22 document for the reviewing officer to read himself into
23 the sort of mindset of the senior investigating officer
24 and the lines of enquiry and things he had seen.
25 So it was an evolving process, if I can put it that
125
1 way.
2 Q. Was Mr McBurney a man for filling in books or action?
3 A. I think, like those of his genre, he came through a sort
4 of a steep learning curve like the rest of us.
5 You know, we struggle to sort of adapt to all the
6 changes that were taking place within CID. To be
7 straight about it, in the sense that he probably might
8 have been lax to some degree as regards policy
9 documentation and written records to some degree,
10 preferring more to actually do what his training almost
11 had been, involvement in the process.
12 Q. Was he ever lax in his determination to catch the bad
13 guys from whatever side of the community?
14 A. I think his investigative record speaks for itself
15 there. He has been involved in over 200-odd
16 investigations of a serious nature.
17 I think if anything could be said of
18 Maynard McBurney, it would be that, without fear or
19 favour, he did his job and did it to a very high
20 standard.
21 Q. There is one other area I want to ask you about, and if
22 you can help us about this, do, and if you can't, just
23 say so.
24 You mentioned the Criminal Prosecutions and
25 Investigations Act that came in in 1996. As you will be
126
1 aware -- and I am paraphrasing -- one of the provisions
2 of that Act meant that the police, if given a line of
3 defence by a suspect --
4 A. Yes.
5 Q. -- had a duty to pursue that line of defence as
6 indicated by the suspect within reason.
7 A. Well, you know, the duty was there, I think, even before
8 the Act.
9 Q. Right.
10 A. The Act certainly made it quite clear to anybody that
11 was in any doubt that it wasn't just a matter of
12 a police officer's investigation being one of eliciting
13 evidence that supported the charge, but if there was any
14 evidence to the contrary that would challenge what was
15 being sort of mooted in the way of charges, that there
16 was a duty also to make that available.
17 Q. Just to cut through it, I will bring you straight to the
18 scenario where there is potential criticism in this
19 case.
20 A. Right.
21 Q. We know that Andrea McKee was present when Tracey Clarke
22 described the Atkinson incident --
23 A. Yes.
24 Q. -- and made no demur from it, didn't say anything or
25 didn't disagree. We know then that Atkinson told the
127
1 police that the McKees had made the phone call.
2 A. Uh-huh.
3 Q. Ultimately, a statement is taken from Andrea McKee,
4 which the police presumably don't believe.
5 A. Yes.
6 Q. Now, can you help us with this: in your opinion, was it
7 either -- just tell us, was it necessary to take the
8 statement, was there an obligation to take the
9 statement, was it wrong to take the statement?
10 This is a witness whose name had been given as
11 a potential help to the defence. Now, having regard to
12 the 1996 Act, what was the obligation on the defence
13 team?
14 A. I would say there was an obligation certainly to take
15 a statement. Whether you believed what you were taking
16 was obviously a line of enquiry that you would have
17 pursued thereafter, but, I mean, if that's what the
18 witness chooses to say at that moment in time, I don't
19 think that anybody could say as a police officer, "We
20 will park that. We will not take that". That was what
21 the witness, as I say, intimated she wished to say, and
22 I presume the statement was taken.
23 Q. Can you help us: would there have been any criticism if
24 the police hadn't taken a statement when they had been
25 told she was a witness?
128
1 A. If there had not been a statement taken at all, there
2 obviously would have been an element of criticism, but
3 as regards the timing of the taking of it, I think
4 that's where the element of flexibility would have been
5 there for the senior investigating officer to determine,
6 "Do I take it now or do I come up with some evidence in
7 the meantime that would allow me to challenge what
8 I think this person is going to say before I commit it
9 to writing?"
10 Q. The final thing I want to ask you about is this. It is
11 just briefly. You have told us about the meeting you
12 had with Mr McBurney concerning what he told you had
13 been his tactic in relation to Atkinson.
14 Now, can you tell us whether or not he appeared to
15 you a man who was keen to pursue Atkinson?
16 A. Very much so. I never had any doubt in my mind that his
17 ultimate desire was to bring the case to a successful
18 conclusion, you know. That certainly came across
19 whenever he spoke as regards his determination to see
20 McKee.
21 Q. I said that was the final thing, but once again
22 I withdraw that.
23 I want to just ask you, I hope finally, and briefly,
24 about this meeting that you were present at, which
25 I know you don't recall, with the chief constable and
129
1 the deputy chief constable and so on.
2 Can you help: would they, or any one of them, have
3 sent any advice down to Mr McBurney as to how to deal
4 with this or would that be left to him, or what
5 happened?
6 A. I would be inclined to think that that aspect -- it's --
7 from the note that Mr Hall has made, I suspect it has
8 been a meeting relevant to the suspension, the weight of
9 evidence that was there: should we suspend or should we
10 not suspend?
11 That's only a personal impression coming from the
12 short note that is there. I don't see -- and it wasn't
13 the practice for chief officers such as myself to dip in
14 and out of any investigation, as I say, unless we had
15 some specific direction from our own legal authorities.
16 MR ADAIR: Thanks very much, Mr White.
17 MR McGRORY: Sir, just before Mr Underwood rises, I have
18 raised one issue with Mr Underwood. There is a second
19 one arising from Mr Adair's questions that I would like
20 to raise with Mr Underwood.
21 Could I ask that we take a break and the witness not
22 leave the building? Thank you. Just a short one.
23 THE CHAIRMAN: Very well. A short break.
24 (3.30 pm)
25 (A short break)
130
1 (3.35 pm)
2 Further questions from MR UNDERWOOD
3 MR UNDERWOOD: Not much more, Mr White.
4 A. Thank you.
5 Q. I want to raise with you a couple of things that you
6 have been asked about quite recently, first of all. Can
7 I go back to your first statement at page [81254]? In
8 the final paragraph of that you talk about the ACPO
9 instructions in relation to the use of policy files in
10 1997?
11 A. Yes.
12 Q. In the second sentence you talk about HOLMES and policy
13 books, where you say:
14 "The HOLMES system was in place and the policy books
15 were part and parcel of major crime investigation. The
16 senior investigating officer in discussion with his
17 investigators maintained the policy book as his record of
18 how he saw the investigation being structured and
19 conducted with a record of the decisions made. The
20 senior investigator would have recorded the progress of
21 his investigation, the lines of inquiry that appeared to
22 him to be most productive, the outcome of those lines of
23 inquiry, new lines of investigation, an assessment of
24 the witnesses and his own thinking processes as to how
25 he would see the investigation through at each stage."
131
1 Quite wrong not to keep one then in 1997?
2 A. I am struggling to think back, sir, in relation to
3 policy books. It was an emerging process, and my only
4 recollection is I think I made or issued a force order
5 in the closing stages of 1997 that made it a must for
6 policy books.
7 Prior to that, there had been an element, as it
8 were, of flexibility in the nature of the book or the
9 record of the investigation that officers kept, you
10 know. It was firmed up after that, as ACPO guidelines
11 and things ...
12 Q. Thank you. You were asked about the concept of taking
13 an alibi statement from somebody whom you didn't think
14 was telling the truth.
15 A. Yes.
16 Q. I am loth to ask you these general hypothetical
17 questions. I am sorry to do it, but you were given
18 a specific set of circumstances to talk about, and
19 I want to hone that down to the actual facts.
20 Here Andrea McKee was put in contact with
21 Detective Inspector Irwin. They had a meeting in a car.
22 At that meeting, Andrea McKee told Detective
23 Inspector Irwin that Tracey Clarke would say that
24 Atkinson had rung Hanvey on the morning of the assault
25 to tip him off basically to get rid of his clothes.
132
1 There is some evidence to that effect. It may be
2 highly contentious about whether any of that is true,
3 but take it from me there is an allegation --
4 A. Yes.
5 Q. -- that at least that is what Andrea McKee told
6 Detective Inspector Irwin Tracey Clarke would say.
7 As a result of that, Tracey Clarke was brought in
8 and she gave that by way of a statement, with more
9 detail than that, in fact. That statement was treated
10 by the police, including Detective Inspector Irwin, as
11 true. This was in May 1997.
12 In October 1997, Detective Inspector Irwin was given
13 the task of taking a statement from Andrea McKee, in
14 which she said she had made the very telephone call that
15 she had told Detective Inspector Irwin, in May 1997,
16 Tracey Clarke would say had been made by Atkinson.
17 Now, in those circumstances, surely
18 Detective Inspector Irwin was bound to challenge
19 Andrea McKee?
20 A. I would accept that Inspector Irwin would have had
21 hearsay evidence available to him.
22 Q. Well, what he got was the woman herself who was
23 proposing to make the statement which contradicted
24 flatly what she herself had told the same officer. That
25 is the point.
133
1 A. What I am saying is he started out with hearsay evidence
2 in relation to what McKee was saying that Clarke would
3 say.
4 Q. Certainly.
5 A. Then he had the opportunity face-to-face to put it to
6 her that this contradicted the scenario that she was now
7 putting to him. One would have expected, yes, for
8 reference to be made back --
9 Q. And when you -- I am so sorry.
10 You were asked to give a character reference for
11 Mr McBurney. You didn't give that off the top of your
12 head, did you?
13 A. I know the man fairly well, yes.
14 Q. You were expecting to give that, weren't you?
15 A. I expected certainly to have to comment on Mr McBurney,
16 because he wasn't present to sort of speak for himself.
17 Q. So when you say he expected very high standards of, if
18 you like, honesty, integrity from people under him --
19 A. Yes.
20 Q. -- would you have expected him to ask
21 Detective Inspector Irwin to take that statement in
22 those circumstances?
23 A. I would have felt he had no option, but if that's what
24 she wished to say at that moment in time, then he would
25 have certainly required the statement to be taken.
134
1 Q. Let us be straightforward about this. When you were
2 answering Mr Adair on this, you said there is a matter
3 of timing about it.
4 If someone wants to give an alibi statement, and you
5 were unhappy about it, what you could do, you said --
6 and I am paraphrasing -- is take your time over it, and
7 you could go away -- before taking the statement, you
8 could go and see whether there is anything that
9 contradicts what you think the person is going to say so
10 that you can put it to them when you are taking the
11 statement.
12 Well, that was the position, wasn't it? They didn't
13 have to delay. They had already had a flat
14 contradiction from the woman herself.
15 They were bound to put that to Mrs McKee, weren't
16 they?
17 A. Certainly I would have expected it at some stage to be
18 raised with her that that's the situation.
19 Q. I want to move away from all those hypotheticals and
20 come back to something you were asked about in relation
21 to the DPP.
22 I just want you to look at some specific instances
23 to deal with the way in which this firewall that you
24 spoke of worked in practice. I am interested in
25 a period in May of 1997. So this is a couple of weeks
135
1 after the incident itself and a few days after Mr Hamill
2 tragically died.
3 A. Yes.
4 Q. What we have, if I can take you to page [31613], is
5 a file note. You will not have seen this before
6 I suspect. I am sorry to bash you with yet more
7 details, but I just want to get your impressions of
8 something here. It is a file note made by Deputy
9 Director, Mr xxxxxxxxxx apparently. He says:
10 "On 12th May 1997 I met with Superintendent [blank]
11 and Superintendent McBurney. Mr McBurney wished to
12 brief me in relation to the six persons who had been
13 charged with the murder of Robert Hamill."
14 Without going through all of it, if I can just pick
15 up the second half of this page, the second paragraph we
16 have on the page at the moment:
17 "Mr McBurney stated that having regard to the injury
18 sustained by this man, he should not have died. There
19 was no real reason why he died. Dr Crane thinks that it
20 may have been septicaemia. He cannot confirm this but
21 hopes that he will be able to shortly. Mr McBurney
22 stated that Mr Hamill received no really serious injury.
23 There was a slight fracture to the side of the head, but
24 his skull on that side was thinner than on the other
25 side. Police investigations commenced on 27th May."
136
1 That should read 27th April:
2 "Three persons were arrested and were later
3 released.
4 "There have been allegations that police did not act
5 quickly enough in relation to the incident. Five people
6 were subsequently arrested. None of the five have made
7 any admissions. A sixth person was arrested. He made
8 no admissions. A final post mortem report has not yet
9 been received. The main evidence against the six
10 accused is provided by two witnesses, Tracey Clarke and
11 Timothy Jameson. In addition, in relation to one of the
12 six accused, Bridgett, his blood has turned up on the
13 jeans of the deceased."
14 If we go over the page very shortly, [31614]:
15 "Tracey Clarke identifies a number of the persons
16 who were involved in the attack, as does Jameson.
17 "I told Mr McBurney that, if necessary, I would
18 arrange a further consultation with police."
19 Can you help us about whether this was the sort of
20 thing that happened between the DPP and SIOs in 1997 in
21 these early stages of an investigation?
22 A. Can we go back?
23 Q. Of course we can. We can split the screen, if you like.
24 A. Just highlight the same ...
25 Q. Of course.
137
1 A. Sorry. Take it away again. This is in relation to six
2 persons who had been charged with the murder of
3 Robert Hamill. I take it these people were remanded in
4 custody at this point in time?
5 Q. Yes, they were.
6 A. When that was happening, obviously there would be
7 discussion between the member of the DPP's staff who was
8 conducting, as it were, the remand processes and the
9 investigating officer, so that sort of exchange
10 certainly would take place at that level in relation to
11 remand issues.
12 Q. So there is a complicating feature then, is there, as it
13 were? What you were very clearly telling my friend for
14 the DPP was that, as it were, there was a before crime
15 file and an after crime file situation. Firewalls
16 throughout.
17 A. Yes.
18 Q. But there is this complicating factor that if people are
19 in custody, then you have, as it were --
20 A. Once it moved on to the charging process, then obviously
21 other time clocks started to tick in terms of -- and as
22 part of the sort of remand process and whether or not we
23 could sustain the charges and keep the people on remand,
24 there would have been ongoing discussions at that sort
25 of intermediate level between the senior investigating
138
1 officer and the officer from the DPP's office dealing
2 with the remand.
3 Q. So if we look at page [00927], we see -- this is part of
4 the policy file that was kept for a fairly short while.
5 Again, no reason why you would have seen this before.
6 We see:
7 "Officer making decision: Detective Chief
8 Superintendent McBurney."
9 It is a decision made on 13th May:
10 "Decision: direction from DPP - speak to
11 Professor Crane.
12 "Reasons: to establish his findings and views as to
13 cause of death."
14 A. Yes.
15 Q. Again, that's the sort of thing you would expect, that
16 the DPP is involved because there is custody. The DPP
17 is involved in all this while it is being investigated
18 because they have to sort out bail. They have to, as it
19 were, keep the ring -- would that be fair?
20 A. Obviously, whoever spoke to Mr xxxxxxxxxx and spoke to
21 Mr McBurney here, he would have sight obviously of the
22 autopsy report.
23 If there was issues arising out of that that needed
24 fuller explanation, then certainly there was nothing to
25 stop that interchange taking place. It simply kept the
139
1 momentum of the investigation going.
2 If everything had to come back through police
3 headquarters in writing to be passed on -- but certainly
4 once people were remanded in custody, it interjected
5 into the process, as it were, these discussions.
6 Q. That firewall is pretty flexible when you come to it.
7 A. Well, it had to be, otherwise, as I say, it would have
8 made it extremely difficult for remand processes to
9 proceed.
10 Q. If we also look at some notes at page [31603], this is
11 a note of a further meeting next day. We looked at
12 a meeting between the DPP and the police on the 12th.
13 This is 13th May.
14 We see people present are Mr McBurney, the Detective
15 Chief Inspector, and then the final two people there
16 named are Junkin and Kitson, who are two senior officers
17 from the DPP.
18 A. Yes.
19 Q. This is a record of issues:
20 "Medical evidence.
21 "Evidence and extent it."
22 There are some words down the side there:
23 "3. Bail.
24 "4. Reserve Constable Atkinson."
25 A. Yes.
140
1 Q. If we jump to page [31608], under the first horizontal
2 line we see:
3 "Atkinson! Said nothing."
4 Over on the right-hand there seems to be text that
5 follows, which is:
6 "Would have known all the people. Subject to
7 further investigation."
8 Now, we will have to ask people what that was all
9 about and whether, in fact, this was a reference to the
10 allegation that Atkinson tipped off or whether it was
11 something else, but we will find that out in due course.
12 Again, what we are having here is two meetings in
13 two days between the DPP and the police, at least
14 a mention of concern about Atkinson, which is a separate
15 heading, and which merits an exclamation mark in
16 the minutes.
17 Again, is this the sort of thing you would expect,
18 where allegations are cropping up, where there is
19 trouble about evidence, where the police are concerned
20 about the process of the investigation and they are
21 involving the DPP? Was that fairly common?
22 A. Yes, this sort of intermediate exchange could take place
23 on the basis, as it were, of the remand papers and the
24 evidence that was available at that moment in time. So
25 it was probably more or less relative, I think, to the
141
1 whole remand processes and what further enquiries would
2 be going.
3 I take it that Mr Kitson, that would be the area
4 Director of Public Prosecutions at the time?
5 Q. Yes.
6 A. It would have been through him that the remand processes
7 and things were being conducted.
8 No, if I gave the impression there was an absolutely
9 black and white paper exchange all the time, certainly
10 when it came down to persons in custody there was
11 immediate pressure on the Police Service to make
12 absolutely sure its investigations were conducted with
13 the ultimate of speed, because these people, as I say,
14 were on remand.
15 Q. And with advice and help?
16 A. And with whatever advice and help, as I say, was
17 available at the time.
18 Q. As I say, we have to ask these people to give evidence
19 and ask them what this separate agenda item about
20 Atkinson is about and why it merited an exclamation mark
21 when this was the day after, as we know, this went up to
22 the chief constable as a matter.
23 If it turns out that this is a reference to
24 a discussion about the tipping-off allegation and,
25 therefore, that the DPP was, as it were, brought into
142
1 the scope of that on 12th May, would that be surprising
2 to you?
3 A. I wouldn't be surprised, you know. The officer
4 concerned here knew the members of the DPP staff on
5 a very personal basis and had many dealings with them.
6 There may have been that relaxed relationship that would
7 have allowed him to discuss, as I say, where his
8 lines of inquiry were going.
9 It doesn't indicate they were giving him any
10 specific advice as to how he should conduct it, but he
11 may have felt there was that element of freedom. "Well,
12 I have them here. Why not corral them and seek some
13 support for what I am proposing to do?"
14 MR UNDERWOOD: Thank you very much.
15 THE CHAIRMAN: Thank you very much, Mr White.
16 MR UNDERWOOD: I am so sorry. Forgive me. I am so sorry.
17 I am being asked -- I put to you a highly detailed
18 scenario about Mr Irwin interviewing Andrea McKee and
19 taking that alibi statement.
20 Did you ever have any discussion about that with
21 Mr McBurney?
22 A. No.
23 MR UNDERWOOD: Thank you very much.
24 A. Could I ask, Mr Chairman, did we get an answer from the
25 PSNI as regards the policy in 1997 as regards --
143
1 MR UNDERWOOD: Not yet is the answer to that.
2 MR WOLFE: I am led to believe I will be in possession of
3 a force order in the morning, which -- I am loth to say
4 too much about its contents until I see it, so I won't,
5 but I will ensure that it is with the Inquiry in the
6 morning.
7 MR UNDERWOOD: That's extremely kind. Can I undertake that
8 on behalf of the Inquiry we will let Mr White know what
9 the outcome of that is? If Mr White feels he needs to
10 come back and tell us any more, then by all means
11 he will be very welcome.
12 A. I will not trouble the Inquiry.
13 MR O'CONNOR: Mr Chairman, I have a question. I don't know
14 whether you will allow me to ask it. I was trying to
15 get Mr Underwood's attention before Mr White leaves the
16 witness box.
17 I know this is the wrong time, Mr Chairman, but
18 a matter was brought up by Mr Underwood in relation to
19 DI Irwin which is very important in relation to DI Irwin
20 THE CHAIRMAN: Very well. Put your question.
21 MR O'CONNOR: It wasn't a matter that was brought up in
22 evidence-in-chief. It will only take one minute if the
23 Inquiry will allow me.
24 THE CHAIRMAN: Very well.
25
144
1 Questions from MR O'CONNOR
2 MR O'CONNOR: Mr Underwood said he was loth to put general
3 hypothetical questions to you, then he described a set
4 of circumstances where an officer takes a statement.
5 In these specific circumstances, DI Irwin takes
6 a statement from Andrea McKee which he knows to be wrong
7 and you were asked what your impression of that was.
8 If you add into those circumstances that
9 DCS McBurney tells him not to raise the matter unless
10 the witness raises the matter, would it be fair for that
11 officer to follow that order?
12 A. I expect him to follow the order.
13 Q. Just finally in relation to DCS McBurney, when he gave
14 you an order and you were an officer junior to him, did
15 a junior officer follow his orders?
16 A. Most orders would not have been open to debate or, if
17 there was an issue, it would have been raised at the
18 time, but Mr McBurney's final direction on the matter
19 would have been what we would be expected to follow.
20 MR O'CONNOR: Thank you.
21 THE CHAIRMAN: Would you have expected Mr McBurney, in those
22 circumstances, to give that sort of instruction to
23 Mr Irwin?
24 Mr McBurney, may I say, was privy to what
25 Andrea McKee had said in the first place.
145
1 A. I find it hard to put myself into Mr McBurney's shoes
2 and what his intentions were in respect of perhaps using
3 that statement if it was a negative statement or one
4 that was contrary to evidence already in his possession.
5 He may have felt himself, Mr Chairman, obliged to take
6 it, if that's what she was still wishing to say.
7 THE CHAIRMAN: Thank you.
8 MR UNDERWOOD: I would go before anybody else thinks of
9 a question, Mr White. Thank you very much indeed.
10 (The witness withdrew)
11 MR UNDERWOOD: Mr Lawther, please.
12 MR GEORGE LAWTHER (sworn)
13 Questions from MR UNDERWOOD
14 MR UNDERWOOD: Mr Lawther, good evening.
15 A. Good evening.
16 Q. You will find that the questions are coming from this
17 direction, even though the sound is coming from
18 a different one. I am very sorry to have kept you
19 waiting all day.
20 My name is Underwood. I am Counsel to the Inquiry.
21 I have a very few questions for you after all this. It
22 may well be that some other people may have a few more
23 after that.
24 Can I ask you your full name, please?
25 A. George Lawther.
146
1 Q. Can we have a look at page [81758]? It is a document
2 that runs to five pages. Can I just ask you to keep
3 your eye on it while the five pages are scrolled
4 through? Is that your witness statement?
5 A. Yes.
6 Q. Is it true?
7 A. Yes.
8 Q. Thank you. Now if we go to the third page of it, which
9 is page [81760], at the top of the page there you are
10 talking about a debriefing process. In the second
11 line you say:
12 "However, it would have been a standard procedure
13 for a detective sergeant to have been instructed to
14 debrief officers following a serious incident and to
15 have recorded notes. I cannot recall who instructed me
16 to debrief on this occasion. If I was debriefing
17 an officer, I would have made handwritten notes which
18 would later have been typed into the HOLMES system and
19 endorsed by whoever checked the handwritten document
20 against the typed document as being a true copy. This
21 would probably explain why Detective Sergeant Bradley",
22 that is, "who was the other detective sergeant at
23 Portadown, has certified the typed notes of", and you
24 have ciphers here. They are, in fact, PC Neill, Reserve
25 Constable Cornett and another gentleman we are still
147
1 calling P40, "when he did not write the original
2 manuscript."
3 That's all true, I take it, and accurate?
4 A. Yes.
5 Q. What we are confused by, if I may say this, is what
6 degree of debriefing there was of any officers who were
7 at the scene in Portadown on 27th April 1997.
8 Now, we have from you, then, that you went through
9 the statements with three officers, those three that we
10 deal with there?
11 A. Yes.
12 Q. You go on to say in the subsequent paragraph that you
13 are unable to explain why you didn't do the same thing
14 with Mr Atkinson, who is the fourth member of the crew
15 that night.
16 A. That's right.
17 Q. We also know that there were a number of other back-up
18 officers, including a sergeant and an inspector who
19 attended the scene and were able to, at least in most
20 cases, identify other witnesses and so on. As far as we
21 can tell, nobody ever did this process with them.
22 Now, can you help us about whether there was
23 a systematic process in place at the time for everybody
24 to be seen or whether this was make do and mend, or how
25 it went?
148
1 A. I can't explain why the other witnesses were not seen,
2 but the three police officers, it would be standard to
3 go back to them and to talk to them and get more detail
4 if there was more detail to be given.
5 Q. Because we have seen, if I may respectfully say so, very
6 thorough debriefing by you in these. I mean, for
7 example, the notes you took from Constable Neill run to
8 about five pages, I think.
9 A. Yes.
10 Q. Was that the sort of standard of debriefing that you
11 have would have expected to happen?
12 A. With the police officers?
13 Q. Yes.
14 A. Yes, yes. I would ask questions and get whatever their
15 answer was recorded, both.
16 Q. One simple extra thing is this. Do I take it from you
17 that your expectation would have been that that process
18 should have been undergone with all the officers at the
19 scene?
20 A. I don't know if that would be the case or not.
21 Q. Let's untangle it a bit. Did you do the thorough job
22 that you did on these three police officers because
23 somebody specifically instructed you to do that?
24 A. Yes.
25 Q. Did that strike you as an unusual or unreasonable
149
1 request?
2 A. To?
3 Q. To do that job?
4 A. No, it didn't. No, that would be a normal procedure.
5 MR UNDERWOOD: That's all I want to ask you. As I say,
6 other people may have some more questions. Thank you
7 very much indeed.
8 Questions from MR McGRORY
9 MR McGRORY: Just a couple of minor matters, sir.
10 Mr Lawther, I represent the family of Robert Hamill.
11 Just where did you stand in the team here, because
12 we have Detective Sergeant Keys, who is on night duty --
13 who is called out in the early hours of the morning to
14 the scene, the early hours of 27th April. Are you aware
15 of that?
16 A. Yes.
17 Q. Then we have Detective Sergeant Bradley, who also is
18 involved in the investigation. Where do you come in?
19 Are you brought in -- at what point are you brought in?
20 A. Well, first of all, I was off duty on that particular
21 weekend, and the following Monday, that's the Monday
22 after that weekend, I was detailed to investigate
23 a robbery at a certain premises in the town.
24 Q. That's a separate matter obviously.
25 A. Oh, that's totally separate.
150
1 Q. At some point, are you tasked to join this team
2 investigating the Robert Hamill incident?
3 A. I was tasked to do certain aspects of the inquiry, but
4 I don't think that I was tasked as a team person.
5 Q. You see, that's the impression I got from your
6 statement --
7 A. Yes.
8 Q. -- which is that you are sort of an ancillary member.
9 A. Yes, yes. I was asked then and instructed to deal with
10 certain aspects perhaps as they arose, but not -- I was
11 never actually detailed as a team member.
12 Q. Does it strike you as odd that you are the one that's
13 asked to do the detailed debriefing of certain people
14 and not one of those who was more integral to the team
15 than you?
16 A. No, I don't think that would be odd.
17 Q. Do you agree that one of the purposes of debriefing is
18 so that there can be an analysis of what everybody is
19 saying in some detail?
20 A. Yes, it is to get -- to try to get more detail, if that
21 is possible.
22 Q. But you were used as a vehicle to get detail in the
23 conversations that you had and then you fed it back --
24 A. Yes.
25 Q. -- to the others.
151
1 A. Yes.
2 Q. That was the normal way of doing it, was it, because,
3 I mean, what I am suggesting to you is that it might
4 have been better practice that one of those small
5 number of officers who are concentrating on the
6 Robert Hamill incident would be one of those doing the
7 function that you did?
8 A. It may well have been that one of the officers who were
9 actually involved in the inquiry were busy with
10 something at that particular moment in time, and then
11 I was instructed, because I wasn't doing anything or
12 whatever, to debrief.
13 Q. You see, because you are not one of the small
14 number specifically dealing with the Hamill case,
15 somebody then has to brief you to do the debriefing, if
16 you know what I mean.
17 A. Yes.
18 Q. Because obviously you are not going to do a debriefing
19 without having to be informed as to what it is you are
20 looking for?
21 A. Yes, I had to be instructed to do this task.
22 Q. Can you remember who it was who instructed you?
23 A. I can't remember, but I would be fairly safe by saying
24 that it was the detective inspector, but I can't say
25 that for certain.
152
1 Q. So it would follow from that that you can't really tell
2 us what it was you were told to look for?
3 A. I can't tell you that now. I can't recall that now.
4 MR McGRORY: Thank you.
5 Questions from MR GILLESPIE
6 MR GILLESPIE: Mr Chairman, my name is Gillespie. I have
7 a couple of questions on behalf of Mr Hobson.
8 THE CHAIRMAN: Yes.
9 MR GILLESPIE: Can I have document [09645] up on the screen,
10 please? If we could scroll through the document,
11 please. Mr Lawther, that is a statement you took -- is
12 that correct -- on 6th May 1997, if we go back to the
13 first page, please? Is that correct? Mr Lawther, that
14 is a statement you took?
15 A. I can't be certain. That statement is signed by me
16 as being recorded or received.
17 Q. Do you have any memory of taking that statement from
18 that individual?
19 A. I don't have.
20 THE CHAIRMAN: Whose statement was it? That might help.
21 MR GILLESPIE: Sorry. xxxxxxxxxx.
22 A. As I say, you know, I don't have any memory at this
23 moment in time of taking that statement.
24 Q. Do you recall taking a statement in relation to the
25 alibi of a Mr xxxxxxxxxx?
153
1 A. No, I don't recall, today, doing that.
2 MR GILLESPIE: Thank you.
3 MR ADAIR: I have no questions, sir.
4 MR UNDERWOOD: Mr Lawther, we have kept you hanging around
5 all day for this. I know you very recently had
6 a bereavement. I am very sorry. Thank you.
7 THE CHAIRMAN: Thank you.
8 A. Thank you.
9 (The witness withdrew)
10 MR UNDERWOOD: That's the evidence for today.
11 THE CHAIRMAN: Now, do we need to sit at 10 o'clock or 10.30
12 tomorrow, Mr Underwood?
13 MR UNDERWOOD: It may help to sit at 10 o'clock, because
14 I know we cannot run on. I don't want to run the risk
15 of any of the witnesses going part heard.
16 THE CHAIRMAN: We wouldn't want to be taking a statement on
17 the runway. Very well. 10 o'clock.
18 (4.15 pm)
19 (The hearing adjourned until 10 o'clock tomorrow morning)
20
21 --ooOoo--
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1 I N D E X
2
3
MR ARCHIBALD OLIVER HAYS (sworn) ................. 1
4 Questions from MR UNDERWOOD ............... 1
Questions from MR McGRORY ................. 13
5 Questions from MR EMMERSON ................ 32
Questions from MR ADAIR ................... 38
6 Further questions from MR UNDERWOOD ....... 47
Questions from THE CHAIRMAN ............... 49
7
MR RAYMOND CARSON WHITE (sworn) .................. 54
8 Questions from MR UNDERWOOD ............... 54
Questions from MR McGRORY ................. 66
9 Questions from MR EMMERSON ................ 100
Questions from MR BERRY ................... 116
10 Questions from MR ADAIR ................... 120
Further questions from MR UNDERWOOD ....... 131
11 Questions from MR O'CONNOR ................ 145
12 MR GEORGE LAWTHER (sworn) ........................ 146
Questions from MR UNDERWOOD ............... 146
13 Questions from MR McGRORY ................. 150
Questions from MR GILLESPIE ............... 153
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