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Hearing: 3rd September 2009, day 56
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PUBLIC INQUIRY INTO THE DEATH OF
ROBERT HAMILL
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Held at:
Interpoint
20-24 York Street
Belfast
on Thursday, 3rd September 2009
commencing at 10.00 am
Day 56
1 Thursday, 3rd September 2009
2 (10.00 am)
3 MR UNDERWOOD: Morning, sir. Among the witnesses I am going
4 to be calling today will be Mr Simpson, Queen's Counsel,
5 who was involved in advising the Director of Public
6 Prosecutions in relation to the prosecution or not of
7 Mr Atkinson.
8 THE CHAIRMAN: Yes.
9 MR UNDERWOOD: Before I embark on any evidence that touches
10 on the DPP, it may be helpful to outline where I suggest
11 the DPP's involvement may fall within the terms of
12 reference.
13 There was, of course, some considerable debate, not
14 to mention judicial review, about the effect of the
15 terms of reference, and a clarification by the Secretary
16 of State about them in relation to the Director of
17 Public Prosecutions.
18 What I suggest that results in is this: that the
19 DPP's involvement with the murder investigation may be
20 within the terms of reference in relation to acts or
21 omissions done to the extent that the office of the DPP
22 had a role in the murder investigation, or in relation
23 specifically to prosecutorial decisions to the extent
24 that such decisions shaped the murder investigation.
25 Now, we know that the office of the DPP was involved
1
1 with the RUC in relation to Robert Hamill's death in
2 May 1997, because we have records showing that members
3 of the DPP staff attended meetings with the RUC,
4 Mr McBurney specifically, on 12th and 13th May. You
5 already have a picture emerging from ACC Hall's evidence
6 yesterday about what sort of briefing Mr McBurney was
7 giving at about that time.
8 We also see that Mr McBurney believed that the DPP
9 had issued a direction around then to ascertain the
10 cause of death, although it is fair to say there is no
11 corresponding direction in the DPP files. It may be
12 a loose usage of the word "direction".
13 The question whether the involvement with the RUC
14 was at any stage sufficient to bring the office of the
15 DPP within the investigational limb of the terms of
16 reference obviously needs to be resolved by asking the
17 DPP witnesses in particular about the documents showing
18 that involvement from an early stage.
19 Having said that, of course, it is fair to say it is
20 very difficult indeed, at least hypothetically, to draw
21 a line between investigation and prosecution, but that's
22 particularly so where those who may be prosecuted are in
23 custody and the DPP is involved in sustaining objections
24 to bail. Again, we have seen that situation is very
25 different to one obtaining where people are not in
2
1 custody and the DPP first gets involved simply when it
2 gets a crime file. Again, DPP witnesses are going to
3 need to be asked where the line might usefully be drawn
4 in relation to dealings, in fact, in this case.
5 Again, I emphasise that decisions that could be said
6 to fall on the prosecutorial side of the line may be
7 subject to examination. They can only be examined
8 within the terms of reference insofar as you could be
9 satisfied that they shaped the investigation.
10 Assuming that on fair examination acts or omissions
11 of the DPP do appear to fall within the terms of
12 reference, the test then is going to be whether they
13 were performed with due diligence, because that is the
14 rubric under which this part of the terms of reference
15 operate. It is clearly not a function of the Inquiry to
16 say whether decisions of the DPP were right or were
17 wrong. It may help to draw an analogy with lawfulness
18 of acts or omissions by a public body in judicial review
19 terms.
20 So you may, for example, want to consider whether
21 the DPP, in relation to any acts or omissions within the
22 terms of reference, took reasonable steps to inform
23 itself, whether it took account of relevant factors,
24 whether it took into account immaterial factors.
25 Almost inevitably, in drawing out evidence to cover
3
1 these matters you will see that judgments were reached
2 by the DPP and his officers on issues that may be very
3 similar to judgments you have to reach, so, for example,
4 on the credibility of the Andrea McKee. Naturally, if
5 the Panel needs to reach judgments about the credibility
6 of a witness, it is going to do that on all the
7 materials before it. The fact that those judgments may
8 differ from judgments reached by the DPP is neither here
9 nor there, because, of course, you are bound by the
10 terms of reference to reach your judgments. The
11 material on which you reach those judgments is likely to
12 be very different to the materials available to the DPP.
13 It, of course, will not necessarily cast any doubt on
14 the propriety of decisions reached 10 or 12 years ago,
15 as it may be, by the DPP.
16 Against that background then there are two discrete
17 matters which appear to call for investigation within
18 the Inquiry. The first is whether the DPP and his
19 office acted with due diligence in relation to those
20 charged with the murder and, secondly, did he and his
21 officers act with due diligence in relation specifically
22 to Robert Atkinson? I separate those because, although
23 they may appear to be inextricably linked in many ways,
24 it is convenient to deal with them separately.
25 Touching briefly on those who were charged,
4
1 an overarching question about those may well be in
2 relation to Tracey Clarke. It is obvious that the
3 police and the DPP thought that Tracey Clarke was
4 telling the truth in her statement to the police in the
5 first place, and there was, of course, a facility by
6 which, if the prosecuting authorities were satisfied
7 that she was not going to give evidence through fear,
8 that her statement could be introduced into evidence.
9 Some consideration appears to have been given to that.
10 You have seen her. You will have seen by the end of the
11 evidence all the materials which went to the way in
12 which her evidence was potentially available to the
13 police and to the DPP. The question may emerge then:
14 was sufficient consideration -- was due diligence, in
15 other words -- exercised in relation to the question:
16 could her statement have been used and supported by
17 other corroborative evidence and thereby the
18 prosecutions carry on?
19 In relation to specific people who were charged,
20 dealing firstly with Stacey Bridgett, you know, of
21 course, that his blood was found on the jeans of
22 Robert Hamill at an early stage, and there has been
23 evidence about whether there was a sufficiency of
24 a spatter pattern to inform those who were interested in
25 prosecuting about whether that showed contact.
5
1 The debate will be played out to some extent when
2 you listen to the remainder of Maynard McBurney's
3 recording, but the debate principally is whether there
4 was a case for re-interviewing him, whether there was
5 a case of getting more forensic evidence, and, if so, if
6 the answer is "Yes" to either of those, whose
7 responsibility was it? Was that a direction that was
8 bound to be made by the DPP? Was the failure to make
9 such a direction a want of due diligence? If so, did it
10 shape the murder investigation?
11 Then, if we go on to Mr Lunt, again you will recall
12 that the evidence against him came from Mr Prunty, and
13 again, Mr McBurney touched on this in what we heard
14 yesterday. There came the revelation that Mr Prunty had
15 seen a video of defendants leaving a court house and
16 then conducted in essence an identification of
17 a different person, and that the DPP then re-interviewed
18 him and put to him images.
19 Again, the question arises: was that done with due
20 diligence and, if so, did it shape the investigation?
21 You have had the advantage of seeing photographs which
22 the PSNI has provided and, again, a judgment is going to
23 have to be reached on that, I suggest.
24 THE CHAIRMAN: Of course, there are two kinds of
25 identification, aren't there? There is the one in which
6
1 a witness can say, "I saw a person here and I saw him do
2 something and then I saw him walk to here and something
3 happened to him in this other place". Others may be
4 able to say, "That man to whom something happened was
5 X."
6 MR UNDERWOOD: Yes.
7 THE CHAIRMAN: "I did it, or I was there when it happened".
8 Now, as a matter of logic, it doesn't really matter
9 whether your first witness is right or wrong in
10 identifying or not identifying the witness, because the
11 main burden of his evidence may be simply to say that,
12 "The person I saw doing something was the person to whom
13 someone else who is a witness who can make
14 an identification did something".
15 MR UNDERWOOD: Yes. It may well be that this situation
16 falls somewhere between the two of those, but again, it
17 may all turn on, when we come to it, the sufficiency of
18 the images that were shown to Mr Prunty when he came in
19 for his second interview.
20 THE CHAIRMAN: Yes.
21 MR UNDERWOOD: Moving on then to Mr Hobson, the key thing
22 here, of course, is that it was felt necessary to use
23 Mr Atkinson as a witness of truth in relation to
24 Mr Hobson to bolster the evidence of PC Neill about what
25 he says he saw when he got out of the Land Rover,
7
1 because obviously there was a crucial issue at that
2 trial of whether the police got out in sufficient time
3 to see anybody, let alone Mr Hobson, kicking or kicking
4 at Robert Hamill.
5 It was obviously felt necessary to advance some
6 substantiating evidence to support Mr Neill, and the
7 choice was made to use Mr Atkinson at a time when there
8 was an allegation outstanding against Mr Atkinson to the
9 effect that he so sympathised with Mr Hanvey as
10 an alleged murderer that he must have seen him do
11 something, or it appears he saw him do something and
12 perhaps stood back, but certainly tipped him off the
13 next day, and that the end result of the disclosure
14 exercise conducted in relation to the Hobson trial was
15 that the interview of Mr Atkinson in September 1997 was
16 disclosed to the defence, which put in very guarded
17 terms the allegation, and that the statement of
18 Tracey Clarke, which obviously made the allegation, was
19 so redacted as to remove Mr Atkinson's name.
20 Now, I am not suggesting there was anything
21 particularly sinister about that, because the package of
22 materials that was delivered, of which that was a part,
23 had all names redacted, but query whether there was due
24 diligence in advancing as a witness of truth somebody
25 against whom there were these utterly central
8
1 allegations without taking great care to ensure that the
2 defence was properly aware of its opportunity to
3 cross-examine him
4 THE CHAIRMAN: You should not simply redact generally. You
5 have to consider in the case of each name whether it
6 should appropriately be redacted.
7 MR UNDERWOOD: You may think so. Of course, if and insofar
8 as that was a want of due diligence, again one has to
9 connect it with a shaping of a murder investigation, but
10 those are the difficulties facing the Panel, I suggest,
11 on that.
12 There are also public order offences in relation
13 generally to those who were prosecuted originally for
14 murder, and again, the question arises whether due
15 diligence was deployed in considering whether, for
16 example, affray could have been charged. Again, if it
17 could be, did that shape the murder investigation?
18 Moving on then to Mr Atkinson specifically, one can
19 break down the actions against him, as it were, to the
20 period before and the period after June 2000; June 2000
21 being the point at which Andrea McKee revealed that the
22 alibi statement she had given was false.
23 Dealing with the first part of it, the question
24 really is: did the DPP act with due diligence prior to
25 June 2000 in relation to the tip-off allegation? That
9
1 entails consideration of a number of questions,
2 I suggest.
3 The first is: should decisions about giving
4 directions in the murder itself have awaited a file
5 relating to the tip-off? Never mind whether Mr McBurney
6 should have dealt with the tip-off as a matter of
7 complaint or not, as I suggested yesterday, in the
8 murder crime file that he sent up to the DPP in late
9 July/early August 1997, he made it clear that a further
10 file would arrive dealing with the tip-off allegation.
11 Again, it is emerging from the evidence that
12 certainly senior officers took the view that the tip-off
13 allegation was something that could, and should,
14 properly have been dealt with by way of a joint
15 indictment, at least conceivably.
16 Then the second question on this is: how should
17 Miss Clarke's reference to that tip-off have been
18 treated? We have been concentrating on whether
19 Mr McBurney and his team could, and should, have taken
20 further steps, indeed any steps, to substantiate the
21 allegation that she made, which was admittedly hearsay.
22 The question arises, once the DPP was alerted to
23 this -- because, of course, it had Tracey Clarke's
24 statement as part of the first murder file -- should it
25 have directed more investigations? Should it, itself,
10
1 have picked up the fact that there is this very serious
2 allegation against somebody against whom, at least
3 potentially, it was to advance as a witness of truth?
4 Should it have checked that out?
5 Then, once the neglect file was received, was
6 the decision not to prosecute Mr Atkinson for that
7 tip-off reached with due diligence. You may not have
8 very much difficulty with that, because, as we have
9 seen, nothing was done to substantiate Tracey Clarke's
10 evidence, or to turn it into some first-hand admissible
11 evidence, so that you may think, by the time the DPP
12 ended up with the totality of the crime files, it did
13 not have anything to prosecute on.
14 Then, moving on to the position with due diligence
15 of the DPP after June 2000, a number of its responses
16 perhaps call for consideration.
17 The first is that when Andrea McKee revealed in
18 June 2000 that she had made a false alibi statement, she
19 was treated immediately as a defendant, albeit that her
20 revelation was not made under caution, and, query,
21 should she have been dealt with as a witness on the
22 basis that it was more important to bag the person
23 against whom she was giving evidence than it was to bag
24 her?
25 The next issue arises this way: that, probably at
11
1 the prompting of PONI, Colville Stewart, whom you will
2 hear this afternoon, asked the DPP to consider deferring
3 her sentence on the basis that, once she had pleaded
4 guilty and was expected to give evidence against
5 Atkinson, there was a much better chance of getting her
6 to court to give that evidence if sentence was still, as
7 it were, hanging over her, and the DPP sought counsel's
8 advice about that -- I have to be fair -- and that
9 advice was, "That doesn't happen here". Query whether
10 that was a sufficient response, particularly in the
11 light of what ended up as the situation, which is that
12 the DPP thought that she was trying to get out of giving
13 evidence at the end of it
14 THE CHAIRMAN: It may be that the practice in
15 Northern Ireland is like the practice which we once had
16 in England but later was rather changed, not inflexibly,
17 in which, if there was a guilty person still to be
18 sentenced who had to give evidence, sentence on him was
19 deferred until after he had given evidence.
20 MR UNDERWOOD: Yes.
21 THE CHAIRMAN: That, I think, is the more common practice
22 now in England.
23 MR UNDERWOOD: Certainly, that was not the practice here.
24 The question is whether that's a sufficient answer to
25 the question.
12
1 THE CHAIRMAN: Yes.
2 MR UNDERWOOD: The next issue arises about the adjournment.
3 As you know, Andrea McKee was due to give evidence at
4 the so-called preliminary Inquiry, still called the
5 committal, on 22nd December 2003. On the 21st, she rang
6 the police to say she could not attend because her child
7 was ill, giving details. The magistrate gave
8 an adjournment and he was then -- again, it is not clear
9 whether it was a condition of the adjournment or simply
10 an attachment to the adjournment, but two dates were set
11 for resumption. The first was 2nd January for the
12 production of medical certificates, and the next was
13 a date I think in March for the resumption of the
14 committal.
15 A good deal of investigation was then conducted and
16 counsel's advice was taken. We are just about to hear
17 the counsel who advised on it. It focused on the
18 illness of the child and it also focused on whether
19 Andrea McKee had gone to Pendine surgery with that child
20 over the weekend, 20th and 21st December.
21 What did not happen was that, on 2nd January,
22 anybody went back to court with medical evidence,
23 despite the fact that by 31st December two statements
24 had been obtained by the GP, which substantiated the
25 medical condition, or at least substantiated a medical
13
1 condition. Query then whether there was due diligence
2 in that and whether, in fact, in essence, the DPP went
3 off on an unnecessary track.
4 Then, as part of that, a view was taken about her
5 credibility on the Pendine issue and on the consequence
6 of that on advancing Andrea McKee as a witness of truth,
7 and again, one would want to consider whether that
8 process was conducted with due diligence.
9 As a result of the conclusion that Andrea McKee
10 could not be advanced as a witness of truth, it was
11 decided to drop the prosecution. Again, I would be
12 inviting you to look at all the steps down to the final
13 decision to see whether there was due diligence
14 involved.
15 Additionally, there is a difficult prospect of
16 an immaterial factor. Can I show you a document,
17 page [34071]? This is the letter written on
18 10th December 2003 to Mr Morrison, who was the relevant
19 officer of the DPP dealing with the Atkinson
20 prosecution. It is headed "R v Hanvey and Others",
21 because Kenneth Hanvey was one of the co-defendants.
22 This was the solicitor, Mr Monteith, who at that stage
23 was acting for Hanvey. He had acted for Hobson.
24 If I take you to the third paragraph on this page,
25 he deals with some disclosure that has been given
14
1 against Hanvey and presumably against Atkinson:
2 "On considering the edited portions of the
3 interviews of DI Irwin and former Detective Chief
4 Superintendent McBurney, it is obvious that the rest of
5 these notes should be made available to me forthwith.
6 In support of the same I would make the following
7 observations at this stage ..."
8 Then under the numbered paragraph 1 about six
9 lines down in the middle of the passage:
10 "I feel I am entitled to know what other
11 circumstances led to the interview."
12 That's an interview of Mr McBurney:
13 "Clearly Mr McBurney has been put forward as
14 a witness of truth and incredibility by the Crown in
15 this case. This is an identical position to
16 Robert Atkinson in the case of R v Hobson. I therefore
17 feel entitled to the entirety of the notes and certainly
18 a full explanation as to what he was being interviewed
19 about. It was not an insignificant interview as he
20 availed of legal representation. In the case of
21 R v Hobson the entirety of Robert Atkinson's Ombudsman
22 transcript was made available to me."
23 I think that means the ICPC transcript:
24 "It is notable that some of the interviewing
25 officers there were Mr McBurney and DI Irwin."
15
1 If we go over the page [34072], to paragraph 5:
2 "Dealing specifically with how DI Irwin took
3 a statement from Andrea McKee in the solicitor's office,
4 there is a huge amount of material edited going on the
5 various page numbers. It is hard to imagine that the
6 interviewing persons were skipping around topic to
7 topic. It seems inescapable that the matters that have
8 been edited are relevant to this area."
9 So there is the DPP being told that, having advanced
10 Atkinson as a witness of truth, it is now faced with the
11 same solicitor who defended Hobson, who is going to be
12 robustly challenging witnesses it is going to advance on
13 pretty much the same basis. It is ironic that the DPP
14 felt able, in prosecuting Hobson, to advance Atkinson as
15 a witness of truth and then stepped back from advancing
16 Andrea McKee as a witness of truth, despite the fact, as
17 far as one can tell, it only believed that she was lying
18 about whether she took her son to a particular medical
19 centre on a particular weekend.
20 One wonders how it could advance one witness as
21 a witness of truth but not the other. That letter may,
22 may, shed some light on why it was embarrassed to carry
23 on and relieved not to have to prosecute Atkinson.
24 I am not suggesting bad faith. I am just suggesting
25 it would be very convenient for it to be able to
16
1 persuade itself as an office that it was better not to
2 prosecute Atkinson.
3 If there was a want of due diligence in relation to
4 Mr Atkinson at all, you may feel it falls easily within
5 the terms of reference, because the murder investigation
6 involved Mr Atkinson as an accessory. So any perception
7 of Atkinson and cover-up was, in fact, part of the
8 murder investigation proper, although it may not have
9 been treated that way by Mr McBurney -- it was treated
10 as part of the complaint -- on any reasonable view you
11 may think quite simply that the allegations against
12 Atkinson could, and should, have formed part of the
13 murder investigation.
14 So with that, what I am proposing to do is call
15 Mr Simpson, Queen's Counsel.
16 THE CHAIRMAN: Just a word, Mr Underwood, about the word
17 "shaping". It's not a term of art. It seems to me that
18 rather than trying to define it, one is better to look
19 at a particular set of circumstances and ask whether the
20 word "shaping" has relevance to that.
21 MR UNDERWOOD: Yes.
22 THE CHAIRMAN: For instance, "shaping" can include things
23 which affect what is done. There are various ways in
24 which a shaping can occur or may occur.
25 MR UNDERWOOD: Yes. At its lightest, it could be a synonym
17
1 for "influenced".
2 THE CHAIRMAN: Yes.
3 MR UNDERWOOD: At its heaviest, it may be a synonym that
4 means, "but for that, you would have done something
5 completely different". Again, it is very difficult to
6 hypothesise about that in the abstract.
7 THE CHAIRMAN: Yes. Thank you.
8 MR UNDERWOOD: Gerald Simpson, please.
9 MR GERALD ERIC JOHN SIMPSON (sworn)
10 Questions from MR UNDERWOOD
11 MR UNDERWOOD: Morning, Mr Simpson.
12 A. Good morning.
13 Q. My name is Underwood. I am counsel to the Inquiry.
14 I suspect most of the questions will come from me, but
15 there will be some supplementals?
16 A. Okay.
17 Q. Can I ask you your full names first, please?
18 A. It is Gerald Eric John Simpson.
19 Q. Can I get to identify your witness statement, and can we
20 get page [81931] up?
21 This runs to three pages. Can we just flick through
22 to make sure it is the document we are both talking
23 about?
24 A. Yes.
25 Q. That is your witness statement?
18
1 A. Yes.
2 Q. Are its contents true?
3 A. Yes.
4 Q. Thank you very much. I want to ask you about a couple
5 of advices you wrote.
6 First of all, can we look at page [20043]. This is
7 a covering letter of 30th August 2002 to Mr Matthews,
8 R v Atkinson and Others, and forwarding your views.
9 Then if we go over to page [20044], we see an
10 opinion which deals generally on the first page and then
11 deals with charges, a staying application and some
12 evidential issues.
13 A. Yes.
14 Q. Can I go to the second page, [20045]? Paragraph 8.
15 I just need to deal with paragraph 8 itself:
16 "The evidence, if accepted, of Andrea McKee is
17 capable of implicating:
18 "(a) Robert and Eleanor Atkinson: each in an offence
19 of conspiracy to pervert the course of public justice
20 arising out of the meeting of the McKees with Robert and
21 Eleanor Atkinson in the home of the Atkinsons.
22 "(b) Robert and Eleanor Atkinson: each in an offence
23 of doing an act intending or intended to pervert the
24 course of public justice by giving false information
25 about the identity of the person who made the telephone
19
1 call.
2 "(c) Kenneth Hanvey: for an offence of doing an act
3 intending or intended to pervert the course of public
4 justice by giving false information about the identity
5 of the person who made the telephone call to his house
6 which he claims to have answered."
7 I want to concentrate on the conspiracy one. Just
8 help us with the law on conspiracy here. We know that
9 the evidence you had from Andrea McKee was that she had
10 agreed to give a false statement to the police to cover
11 up a phone call by claiming that her husband had made it
12 when, in fact, Robert Atkinson had made it. That's
13 fair, is it?
14 A. Yes.
15 Q. That would be the agreement part of the conspiracy.
16 Would you also need, in order to prove that conspiracy,
17 to prove that the thing they were covering up was also
18 criminal?
19 A. I would have to go back and look to be sure about that.
20 Q. Okay.
21 A. It's an act tending to pervert the course of public
22 justice. So the act has to be an act which is intended
23 to or intends to pervert the course of public justice.
24 Q. Quite. So lying to a police officer about the time is
25 not going to pervert the course of public justice --
20
1 A. No.
2 Q. -- but lying about whether a crime has been committed
3 might do?
4 A. Yes.
5 Q. If we look on the previous page [20044], where you set
6 out Andrea McKee's evidence and you say:
7 "Andrea McKee can prove, inter alia (i) that she
8 heard her husband on the telephone to Atkinson telling
9 Atkinson that Tracey Clarke had told them (the McKees)
10 that Allister Hanvey had told her (Clarke) that Atkinson
11 had telephone his (Hanvey's) house and told him (Hanvey)
12 to get rid of his clothes; (ii) that subsequently she
13 and Michael visited Atkinson's house where, in the
14 presence of Eleanor Atkinson, Robert Atkinson told them
15 the concocted story which they were to tell to cover the
16 telephone call from the Atkinson house to Hanvey's on
17 the morning of 27th April; (iii) that, contrary to
18 earlier assertions by several parties, she and her
19 husband did not stay at the Atkinsons' house on the
20 night of 26/27 April; (iv) that, accordingly, her
21 husband did not make any telephone call to the Hanvey
22 house on the balance of probabilities on the morning of
23 the 27th; and (v) the general detail of the association
24 between the relevant persons involved."
25 Now, with the aid of that refreshment, is this fair:
21
1 in substance you accepted she could give evidence about
2 the agreement but also give evidence about the actual
3 telephone call having been made by Atkinson as a result
4 of his admission, in essence?
5 A. Yes. My recollection is I must have thought at the time
6 she was capable of dealing with each of those matters.
7 Q. So it doesn't just go to her evidence being credible on
8 her agreement, it goes to her evidence being credible on
9 a number of other matters, including general
10 associations between people, what Atkinson told her,
11 etc?
12 A. Yes.
13 Q. Thank you.
14 THE CHAIRMAN: Just so I follow that, would you need
15 evidence from Andrea McKee of what Atkinson said about
16 the substance of his telephone call?
17 A. My problem is I can't remember all the detail that I had
18 at the time, and even looking through some of the papers
19 I can't remember what was in my mind at the time, but
20 I am quite clear that her evidence was central to what
21 we were going to have to prove, and that we would need
22 the detail of the conversations, whatever she could say
23 about them, as well as the circumstances which prevailed
24 at the time, the relations between the various people,
25 that sort of thing. So each of those matters that
22
1 I have outlined there were what I thought she could
2 prove.
3 THE CHAIRMAN: Did you take the view that, in order for
4 there to be a conspiracy to pervert the course of
5 justice, there had to be some evidence of the
6 tipping-off allegation? Do you know what I mean by the
7 "tipping-off allegation"?
8 A. Yes. It had to be more than just a phone call about
9 a horse race. It had to be you could link that with the
10 tipping-off allegation.
11 THE CHAIRMAN: Yes. You considered that the evidence was
12 sufficient to show that?
13 A. That that's what she could give, and, if you could marry
14 that up with all the other bits and pieces successfully,
15 then there was a reasonable prospect at that stage of
16 conviction.
17 MR UNDERWOOD: Thank you. Then I want to move to an advice
18 which is covered by page [33915]. 16th March 2004.
19 A. Yes.
20 Q. You are enclosing an opinion to the DPP. If we go over
21 the page to [33916], in paragraph 5, if I can pick that
22 up, you recite that:
23 "On Sunday 21st December, she [this is Andrea McKee]
24 contacted police indicating that she would be unable to
25 travel to Northern Ireland on the Monday as the child
23
1 was ill. DC Murphy contacted her to be told that the
2 child had mumps and otitis and that there was a fear
3 that, due to the child's high temperature, he might have
4 a fit. She indicated that she could not attend court on
5 the Tuesday (23rd). When asked if she could, she
6 replied 'Definitely not'."
7 Just to fill you in, she was due to give evidence on
8 the Monday.
9 A. Yes. There is a bit of narrative hidden slightly by the
10 enlargement and that is my recollection is, having read
11 that, she had been contacted by DC Murphy on the
12 previous Friday -- this is in paragraph 4 -- to confirm
13 the travel arrangements and made no reference to the
14 difficulty with the child, which apparently occurred
15 throughout December I think it was.
16 Q. Certainly. All I am trying to clarify here is that she
17 was not due to attend court on the 23rd. She was due to
18 attend on the 22nd.
19 What you are reciting in the paragraph is that the
20 possibility of travelling the day after she was due
21 originally to have travelled was raised with her.
22 A. Yes.
23 Q. The reason I am doing that is because I want to you look
24 at paragraph 6:
25 "It transpires that they had to attend on the
24
1 Tuesday a previously arranged medical appointment
2 relating to a job for which she was applying. She did
3 not inform police of this at any time."
4 [33917].
5 A. Yes.
6 Q. I don't want to use emotive language here. Did you, as
7 it were, hold it against her credibility that, having
8 been due to attend on the 22nd, it transpired that she
9 had an appointment on the 23rd?
10 A. No. That was not something that I -- because that never
11 became absolutely clear, that point. It was not clear
12 in my mind precisely what the situation was. I did ask
13 her about it in the course of the consultation, but
14 I did not come to any conclusion about it.
15 Q. We are all capable of writing things in advices that, on
16 mature examination, were perhaps unnecessary. Can you
17 help us with why you put that in there?
18 A. It was part of the narrative.
19 Q. If we jump --
20 A. I also put in the piece about the letter, which again,
21 I came to no conclusion about in respect of that, but it
22 was part of the overall consultation. Those matters
23 were addressed.
24 Q. Fine. Then if we can jump to page [33918], I want to
25 pick up, if I can, paragraphs 15 onwards. Obviously you
25
1 have re-read this.
2 A. Yes.
3 Q. The context of this is you have just been discussing the
4 issues that have arisen about Pendine surgery and
5 whether she had taken the child there over the weekend.
6 A. Yes.
7 Q. You say there at paragraph 15:
8 "I offered her an opportunity to admit that her
9 story", that's the story about Pendine, "was untrue and
10 to give us the true explanation. She maintained that
11 the version she had given was true ."
12 If I jump down -- obviously we can come back to any
13 bits I miss out if I do this unfairly -- to
14 paragraph 18:
15 "In the circumstances of this case, the prosecution
16 will be called upon to explain the adjournment which
17 resulted from her non-attendance on 22nd December. The
18 explanation given by [her] is untruthful, in my view, in
19 the light of the police inquiries. It would be
20 inappropriate to put this version of events forward
21 knowing that, as will inevitably happen if she goes into
22 a witness box, she will give untruthful evidence.
23 "The overall effect of her maintenance of the story,
24 for which there is not a shred of the corroboration, is
25 to contaminate any evidence that she may give and
26
1 completely to undermine her general credibility.
2 "In those circumstances, I am not in a position to
3 advise that she can be put forward by the prosecution as
4 a witness capable of belief."
5 Now, I want to ask you a couple of matters about
6 those passages, if I may. The first is this: that
7 appears to give the impression that what persuaded you
8 that she was lying was solely the Pendine issue. She
9 was lying about Pendine, in other words.
10 A. She was lying about Pendine.
11 Q. Now, moving outside, as it were, the four corners of
12 this advice, you know afterwards that this advice was
13 considered at some length up to and including the
14 Attorney General.
15 A. I wasn't aware of that.
16 Q. You know it now, I take it.
17 A. Now that you have told me.
18 Q. Were you conscious that it was considered with care by
19 various officers of the DPP's department?
20 A. I would hope so.
21 Q. Including Sir Alasdair himself?
22 A. I would expect so. I would be surprised if it was not
23 looked at with care.
24 Q. Were you conscious that they were exercised by the
25 possibility that she had been lying about the illness of
27
1 her child?
2 A. No.
3 Q. Were you conscious of the terms of the adjournment?
4 A. The terms of the adjournment?
5 Q. Yes.
6 A. The first adjournment that led to the hearing being set
7 up for 22nd December or the adjournment of that?
8 Q. The adjournment of 22nd December.
9 A. The adjournment of the 22nd? I am not sure that I am
10 aware now, but I would have assumed that she didn't turn
11 up. The magistrate adjourned it, but asked for
12 an explanation to be provided. I assume that she was
13 asked for an explanation. She gave her explanation and
14 somebody decided, "Look, let's get some medical evidence
15 to show that was the case and show the magistrate".
16 I assume that to be the case, but I don't know.
17 Q. I want to be very careful about this, because I know it
18 is a while back. Are you telling us you weren't told of
19 the terms of the adjournment and you made assumptions at
20 the time?
21 A. No, I am not. I am saying I can't remember what I was
22 told, sitting here, but if I was told the terms of the
23 adjournment, I would have -- if I am asked, "What would
24 you do if you were told a witness did not turn up at the
25 hearing because of some medical reason?" my first
28
1 inclination would be to say, "Well, we will get some
2 medical evidence".
3 Q. Can we have a look at [34061]? This is the record.
4 Doing the best I can with the manuscript, it is:
5 "Principal prosecution witness, Andrea McKee, unable
6 to travel from Wrexham, Wales, because her 2-year-old
7 son has mumps and swollen testes. Adjourned to
8 2nd January 2004 for presentation of certificate. To be
9 relisted.
10 "Crown applied for 16th February.
11 "Date available to all is 8th March.
12 "Fixed for 8th March 2004."
13 So what we know is, firstly, the adjournment went to
14 two separate dates, one substantive date, 8th March, the
15 other a date for presentation of certificate.
16 So all that apparently the magistrate wanted was
17 a certificate.
18 A. The certificate being what? A medical certificate?
19 Q. That's what we conclude, and from other evidence that's
20 what we get. What we are told is that simply the police
21 rang the GP for a certificate showing the child had been
22 ill, but the GP happened to be away and nobody else at
23 the practice would provide a certificate and further
24 enquiries were then made.
25 So --
29
1 A. I do not know whether I -- I cannot remember that being
2 the case. I may have been told that, but I can't
3 remember.
4 Q. Fair enough. We also know that the GP was then asked to
5 provide a statement. He got that wrong. Then he gave
6 a second statement. Let's have a look at those.
7 Page [34042]. This is the GP. Perhaps we can
8 highlight the manuscript, because it is not that easy.
9 A. I can ...
10 Q. It sets out what he is:
11 "I confirm that on 1st December 2003 [he sets out
12 the child's name] was brought to see me when I diagnosed
13 an ear infection and the possibility of mumps as well.
14 He was prescribed appropriate treatment. He further
15 consulted my partner on 22nd December 2003 when an ear
16 infection in both ears was again diagnosed."
17 Then if we go to [34055], because his records were
18 incomplete, he was asked to make a further statement.
19 What you get from that page is a fax cover sheet from
20 the policeman:
21 "Please find statement from [GP]. Sorry for the
22 delay - but he is not as keen on keeping records as
23 I thought.
24 "Re the statement from Pendine ..."
25 Then it talks about the afternoon shift. If we look
30
1 at page [59853], we see the further statement itself.
2 30th December 2003. Taking the second line:
3 "In furtherance to my previous statement regarding
4 [the child], I can now also confirm that the named
5 patient was visited at his home by myself following
6 a request from his mother to the surgery for a doctor to
7 attend. The child was suffering from an ear infection
8 and possibility of mumps as well. I recall prescribing
9 the patient antibiotics for his illness. This visit
10 took place on 11th December 2003."
11 So by the end of 2003 then, the prosecuting
12 authorities were in possession of two witness statements
13 from the GP showing visits on 1st and 11th December and
14 a visit on 22nd December, where, on the first two
15 visits, there was diagnosis of the possibility of mumps,
16 prescription of antibiotics, etc. In your view, would
17 those have satisfied the condition, if it is
18 a condition, of the adjournment for a certificate?
19 A. A medical certificate that she was unable to attend on
20 the 22nd? I don't know. I just don't know the answer
21 to that. Presumably, if the doctor visited the child on
22 the 22nd, and if there is a medical certificate to that
23 effect, it may well have done.
24 Q. Well, we know that the child was taken to the GP on the
25 22nd and a diagnosis of ear infection was made on that
31
1 day.
2 This is all new to you, isn't it?
3 A. Yes.
4 Q. So when advising --
5 A. I say "Yes" confidently. Yes, I think so. I don't
6 recall having seen all these documents before. I may
7 well have done, but I don't recall it at this distance.
8 Q. To be fair, we have no reason to believe you saw either
9 the conditions of the adjournment or these.
10 So it follows, doesn't it, that you were asked to
11 advise on whether to advance this lady as a witness of
12 truth not knowing what the condition of the adjournment
13 was, neither knowing whether it had been satisfied.
14 A. Yes, that's if I have not seen it. But I don't have
15 a recollection of those at this stage. My problem is
16 I did see them when I looked at some of the papers I was
17 given and I can't remember whether I remember them
18 because I looked at them recently or whether -- but
19 I don't recall seeing them at the time.
20 Q. Of course, you weren't concerned anyway in your advice
21 about whether what she had said about her child's
22 illness was true --
23 A. No.
24 Q. -- because you were concentrating on whether she was
25 telling you the truth about visiting an out-of-hours
32
1 surgery?
2 A. Yes. If I remember rightly, there had been at least one
3 consultation with people before I saw her, maybe two
4 consultations. I am not sure. By the time it came to
5 me I had been given documents that showed she told lies
6 about Pendine. I expressed the view I thought her
7 credibility would be damaged. I was asked to speak to
8 her about the issue and I spoke to her about the issue.
9 Q. You were brought in, not necessarily to be
10 determinative, but to give your weight to the question
11 whether lying about Pendine was something which you
12 believed, as it were. Sorry. I put that badly.
13 A. No, I understand what you are saying. My recollection
14 of what I was asked to do was to speak to her. We spoke
15 to her particularly about Pendine. Pendine was the only
16 thing I think I spoke to her about at any length.
17 My recollection was I was to do that and then advise
18 on her credibility, meaning: could you really put her
19 forward as a witness of truth with a view to all of her
20 evidence being accepted, not just on the main issue?
21 THE CHAIRMAN: I am wondering what we mean when we talk of
22 "putting a witness forward as a witness of truth"?
23 A. Yes. It has become almost a shorthand phrase. What
24 I really meant was, by the time I finished looking at
25 her as a witness, both what her evidence was and her
33
1 personally as a witness, what she had said and her lies
2 in this particular case, did I consider there was
3 a reasonable prospect of conviction if she was likely to
4 give evidence in front of a jury. That's what
5 effectively I mean by -- that was my advice, whether
6 there was a reasonable prospect of a conviction.
7 I think that's what I have to do.
8 THE CHAIRMAN: A witness of truth, for forensic purposes,
9 must surely mean a witness who can be put forward as
10 telling the truth about the matter about which she is
11 giving evidence?
12 A. Yes. As I say, it is a phrase that has become
13 a shorthand phrase. What I was asked to do -- my
14 understanding of what I was asked to do was to say, "In
15 the light of all you know about her evidence, and her,
16 and this Pendine incident, do you think there is
17 a reasonable prospect of conviction?" and my view was
18 that I didn't think there was a reasonable prospect of
19 conviction. However it was phrased in the final
20 advices, that was what I had in mind.
21 MR UNDERWOOD: Can I help tease this out? It may well be
22 that people use this phrase "witness of truth" in two
23 different ways.
24 On the one hand, there is the propriety of acting on
25 behalf of the Crown, advancing someone you feel you
34
1 should not be advancing. On the other hand, there is
2 the prospect question of advancing a witness who may
3 well not be probative.
4 Is what you are telling us that you were concerned
5 with whether she would be sufficiently probative rather
6 than this being a question of the probity of advancing
7 her?
8 A. To an extent the two overlap, but the final decision
9 that I had to make to advise was: when all was said and
10 done in the trial, was there a reasonable prospect of
11 conviction? And I didn't think there was. The two
12 overlap. I don't think you can separate the two
13 completely.
14 Q. All right. I have yet to ask the DPP officers about
15 this. Let me put this proposition to you. There is
16 reason to believe that the DPP at a senior level
17 believed she was still telling the truth about the
18 conspiracy. Their only concern was whether she was
19 telling the truth about this ancillary matter of whether
20 she had taken her child to the surgery.
21 Are you telling us that you thought she was lying
22 about everything or was incredible?
23 A. No, I didn't say that at all. What I was considering
24 was whether or not, when she had finished being
25 cross-examined in the course of a trial, having stuck,
35
1 in my view, brazenly to a lie and flitted quickly
2 between that lie and another lie, where she was caught
3 out in a lie, my experience is that when a witness
4 spends a lot of time being cross-examined about that,
5 a witness is damaged.
6 My view was that such would be the damage that she
7 would not be capable of proving the case beyond
8 a reasonable doubt, even taking into account the other
9 matters which you could use to marry up. That was my
10 view at the end of it all.
11 THE CHAIRMAN: There would, of course, be limits to the
12 cross-examination which would be permissible.
13 A. Yes, there would --
14 THE CHAIRMAN: Forgive me. This was cross-examination as to
15 credit.
16 A. Yes.
17 THE CHAIRMAN: You could not go, as a cross-examiner, behind
18 her answers.
19 A. No, I appreciate that.
20 THE CHAIRMAN: You wouldn't, for instance, be able to say,
21 "Well, there is evidence from so and so that you didn't
22 do this or did do that". That would not be a proper
23 form of question, would it?
24 A. That is strictly correct, but in this jurisdiction you
25 would get away with a little bit more of
36
1 cross-examination about somebody who was obviously
2 telling a lie, about setting the scene with someone who
3 was obviously telling a lie. It would go a little bit
4 further than just ask the question, bound by the answer.
5 THE CHAIRMAN: That's one thing, but you cannot, can you,
6 put to the witness matters of hearsay which are not
7 allowed by the rules of evidence to adduce?
8 A. No.
9 THE CHAIRMAN: That's right, isn't it?
10 A. Yes.
11 THE CHAIRMAN: Whether the judge is strict or no.
12 A. Yes. Well ... that's certainly correct.
13 THE CHAIRMAN: I mean, it doesn't seem to me that it's
14 a useful guide as to what does or doesn't make a witness
15 a witness of credibility to consider what counsel may be
16 allowed to get away with contrary to the rules.
17 A. I have to say my own view was that a witness who says,
18 "Yes. Sorry. I have told a lie. I understand", and
19 you can put forward an explanation for the lie. "Yes.
20 All right. I slept in that day. I didn't want you to
21 know I had slept in so I said the bus had broken down"
22 or something like that, that's much more easy to deal
23 with in a trial than a witness who brazenly tells a lie
24 which is clearly a lie because every single
25 investigation shows it is a lie.
37
1 My experience over the years has been there is
2 a fundamental difficulty with that witness, when you put
3 them forward, getting home on the evidence. That is the
4 problem I faced and that is the problem I regarded as
5 insurmountable with this witness. That's why I said
6 there was not a reasonable prospect of conviction.
7 MR UNDERWOOD: Could it have affected your advice on this to
8 have known what the condition of the adjournment was and
9 that it had been satisfied?
10 A. It might. I don't know the answer. That's too
11 difficult for me to answer so many years later. It
12 might.
13 Q. Again, I want to tease out, if I may, what appear to be
14 different views about what it was about her evidence
15 that would lead her not to be called.
16 Your view was that this question of Pendine would
17 emerge at either the committal or the trial presumably?
18 A. Well, it couldn't not. Apart from anything else, my
19 duty would have been to notify the defence that this
20 witness had told lies, because I have a duty to let the
21 defence know if there is anything that might undermine
22 the credibility of a witness, and I would have -- first
23 of all, it would have emerged in the course presumably
24 of the Magistrates' Court hearing.
25 Q. I want to come back to this. At the moment, all I am
38
1 interested in is the forum, as it were, in which you
2 were believing this would come out. As far as you were
3 concerned, it would come out when she gave evidence?
4 A. It would come out initially in the Magistrates' Court,
5 I would have thought, and then in the trial.
6 Q. Right, but would it surprise you to learn that the DPP
7 at least thought there would have to be a specific
8 hearing, not to do with the merits, but to do with
9 whether the adjournment had been properly granted?
10 A. I wasn't aware of that. Again, I say I wasn't aware of
11 that. I don't have any recollection of that. I don't
12 want to say that just in case there is -- I don't have
13 a recollection of that being an issue.
14 Q. I think it is fair to say there is nothing in our
15 possession that says you were aware of it.
16 So let's go back then to your duty. You would have
17 regarded it as your duty to tell the defence about your
18 view that she was lying about something as ancillary as
19 to whether she took her child to a place before the
20 weekend. Is that right?
21 A. You say ancillary, and, yes, of course, it is ancillary
22 to the issue that she would eventually be giving
23 evidence on at the trial, but it was not just a,
24 "I missed my bus" lie. She was supposed to come to
25 a court hearing. She was part of the formal court
39
1 process. It was a very big lie, and notwithstanding the
2 investigation that the police carried out, a pretty
3 lengthy investigation, going back I think throughout the
4 whole month of January, and notwithstanding every
5 attempt to say, "Don't worry about it. If that's not
6 true, just tell us it is not true", she stuck to the
7 lie. She was brazen about it. She was cute. As soon
8 as the grey-haired point came up, she was quick to say
9 "I'd like you to take the child in".
10 It was much more than an ancillary lie, "I missed my
11 bus". It was quite an important lie that she stuck to
12 brazenly and I was concerned about that.
13 Q. It is very unfair to put this to you after this remove
14 and in the witness box without you having seen the
15 documents at the time, but your conclusion this was
16 a very big lie must be predicated on your assumption
17 that the adjournment was not justified, must it not?
18 A. I suppose so. I think so. I think that's probably
19 right.
20 Q. So it is crucial, therefore --
21 A. I don't know about crucial, but I assumed I was brought
22 in to deal with this point because there was a problem
23 about the explanation that she had given in relation to
24 the Magistrates' Court.
25 MR UNDERWOOD: Exactly. That's very helpful indeed. Thank
40
1 you very much, Mr Simpson.
2 MR WOLFE: I have no questions, sir.
3 MR ADAIR: I have no questions.
4 Questions from MR McGRORY
5 MR McGRORY: Just one or two matters, Mr Simpson. You know
6 who I am and whom I represent?
7 A. I think I know who you are, Mr McGrory, yes.
8 Q. I think the advices you gave on this occasion were
9 perhaps slightly different than the advices you might
10 give in a case of which you had ownership, if you
11 understand what I am saying.
12 A. No. I am sorry, Mr McGrory. I don't understand.
13 Q. Well, in the sense that you may or may not have been the
14 prosecutor in this case. Isn't that correct?
15 A. I would have thought that I probably was going to be the
16 person who prosecuted the case, yes. I can't imagine
17 I would be doing all this and then somebody else get the
18 brief. I would be pretty bitter and twisted about that
19 to start off with. I suspect that I -- I am pretty sure
20 I would have been the one prosecuting the case. In
21 fact, I have a recollection I saw somewhere in the
22 documents that I might have been asked to do the
23 committal proceedings, but I am not clear about that
24 now.
25 Q. Let's put it this way. The ultimate decision as to
41
1 whether or not the prosecution would proceed wasn't
2 yours?
3 A. No, but mine was the advice which would lead to that
4 decision.
5 Q. Yes, but unlike perhaps in other situations where you
6 have conduct of a case, whether it be a civil case or
7 whatever --
8 A. Yes, but even then you don't have the right -- I don't
9 make the decision. Even if I am prosecuting a case in
10 the Crown Court, I don't have the right to drop charges.
11 I have to go back to the DPP and say, "I am sorry. This
12 is not going the way we thought."
13 Q. You are really giving assistance to the Director of
14 Public Prosecutions in making the ultimate decision,
15 which was his --
16 A. Yes.
17 Q. -- whether or not to proceed with the prosecution?
18 Really, the Director of Public Prosecutions and those
19 who work directly with him in making that decision were
20 those who were privy to all of the information, some of
21 which you were not given in respect of the circumstances
22 leading to you this decision.
23 A. So I would assume, yes.
24 Q. But after you gave this opinion -- and this is the point
25 that I am coming to -- did anyone return to you and say,
42
1 "Listen, here's a point that has been raised with us or
2 that we have considered, an extra point you might want
3 to look at", and ask you to revisit the situation?
4 A. No.
5 Q. Are you aware that the Attorney General himself examined
6 the case?
7 A. I am as a result of what Mr Underwood said this morning.
8 Q. Yes. Are you aware that the Attorney General raised
9 an issue with the Director personally --
10 A. No.
11 Q. -- in respect of the corroborative value of the initial
12 plea of Mrs McKee?
13 A. No.
14 MR McGRORY: Thank you.
15 THE CHAIRMAN: Yes, Mr Mallon.
16 Questions from MR MALLON
17 MR MALLON: I appear on behalf of Mr and Mrs Atkinson. They
18 were involved, as you know, at the committal
19 proceedings.
20 Were you aware that there was a suggestion that this
21 witness was not going to turn up under any
22 circumstances?
23 A. No. I have a recollection of some letter containing
24 a threat and that might be what you are talking about,
25 but I don't have a recollection. My recollection is
43
1 that she turned up at one previous occasion and, for
2 whatever reason, the case did not go on, but I was not
3 aware there was a suggestion she was not going to turn
4 up.
5 Q. The magistrate had to disallow himself?
6 A. Disallow himself what?
7 Q. From the initial hearing. Then there was
8 an adjournment. The second hearing was the one that she
9 did not turn up to. Were you aware of that?
10 A. I was aware there had been another hearing at which she
11 had turned up. I was not aware why -- I don't remember
12 now whether I was aware why that didn't go on.
13 Q. This was going to be a very contentious P.E.P.I.?
14 A. I would have assumed that as a matter of common sense.
15 Q. The suggestion was she was not a witness of any
16 integrity and she was going to be attacked on that
17 basis?
18 A. I don't know what the defence was.
19 Q. One of the issues was she didn't turn up and this was
20 possibly a smoke-screen, and that was raised with the
21 magistrate. Were you aware of that?
22 A. No.
23 Q. As a result of this smoke-screen and attack on her
24 credibility, an investigation was instituted, at the
25 request of the defence, to the magistrate.
44
1 A. I don't remember being aware of that.
2 Q. Even the small certificate was not enough. It had to be
3 an investigation, because the defence were very adamant
4 that they did not believe this witness had any
5 justification for not coming, and that that was the basis --
6 A. I am not sure I can answer that question.
7 MR MALLON: Thank you.
8 MR UNDERWOOD: Neither am I sure it is true. I wish my
9 friend would put foundation for this, because it is news
10 to me.
11 THE CHAIRMAN: Yes, Mr Emmerson?
12 Questions from MR EMMERSON
13 MR EMMERSON: Mr Simpson, you were asked about what
14 information you had available to you in relation to the
15 medical reports that had been obtained from
16 Andrea McKee's GPs?
17 A. Yes.
18 Q. Can I ask, please, that you be shown page [33984]? This
19 is a letter to you from Ivor Morrison on 13th February
20 referring the issue back to you following a consultation
21 that had taken place with your junior, Christine Smyth,
22 and Andrea McKee, on 9th January. Do you see that?
23 A. Yes.
24 Q. And indicating that within the letter are -- in the
25 second sentence of the first paragraph, a recognition
45
1 that you had received from Christine Smyth her notes of
2 that earlier consultation. Do you see that?
3 A. Yes, yes.
4 Q. Again, can you help us from recollection -- if not, say
5 so -- Christine Smyth's notes contained, as we can see,
6 the foundation for the record of Andrea McKee having
7 said that the doctor who treated the child was
8 a grey-haired gentleman?
9 A. Yes.
10 Q. Do you recall that?
11 A. I recall there was discussion about the grey-haired
12 gentleman. So I assume I was aware of that, yes.
13 Q. And that she had also told Christine Smyth in that
14 9th January consultation that she, Andrea McKee, had
15 been present in the consulting room --
16 A. Yes.
17 Q. -- when the child was examined, had seen the doctor
18 physically examine the child and was able to say that
19 from recollection the doctor made no notes during that
20 examination. Do you remember that?
21 A. I remember she was in that, because I refer to it in the
22 advices, the final advices, that point about how she
23 switched quickly from one lie to another.
24 Q. Yes. Now, if we look at the second paragraph of that
25 letter, Mr Morrison sends you with the letter a document
46
1 which is described as "a summary of relevant events" to
2 set in context the matters that needed to be discussed
3 at consultation.
4 A. Yes.
5 Q. He goes on to say:
6 "Police at the consultation will provide all the
7 facts and information known to them with a view to it
8 being decided whether Andrea can now be considered
9 a credible witness ..."
10 A. Yes.
11 Q. The summary of events document -- can I make this clear
12 to the Panel -- which I am going to turn to in a moment
13 was a rolling document kept updated. The version we
14 have of the summary of events document in the evidence
15 is 18th March. So it's a later version, but it is kept
16 updated on a rolling basis so one can see what
17 information was available to Mr Simpson accompanying
18 this letter of 13th February.
19 Could we look, please, at [33909]? Do you recall
20 seeing that document?
21 A. I don't recall seeing it, but if it was in the papers,
22 I'm sure I did. I mean, I don't have any recollection
23 of which documents I saw, but if it was there, I'm sure
24 I did.
25 Q. Obviously, we have seen from the covering letter that
47
1 you did receive that the summary of events document in
2 one form or another was provided to you.
3 A. Yes.
4 Q. If we could just look, please, at [33912] and at
5 paragraph 20:
6 "By the time the case was mentioned in early
7 January, police had been unable to obtain medical
8 evidence which fully supported Andrea McKee's assertion
9 that her child was suffering from mumps and had been
10 brought to the doctor and diagnosed with mumps during
11 the weekend of 19th, 20th and 21st December. Medical
12 evidence was obtained which showed that she had visited
13 her own doctor with her son ... on 1st December 2003
14 when he was diagnosed as having an ear infection and the
15 possibility of mumps.
16 "Further enquiries showed that her own doctor had
17 visited her home on 11th December 2003 when [the child]
18 was again found to be suffering from an ear infection
19 and the possibility of mumps as well. She again visited
20 her own doctor on 22nd December 2003, the day when she
21 should have been in Craigavon court, when [the child]
22 was diagnosed again as having an ear infection in both
23 ears."
24 Do you see that?
25 A. Yes.
48
1 Q. Now, you were shown the statements themselves a moment
2 ago and asked whether you had seen them.
3 A. Yes.
4 Q. First of all, would you agree with me that paragraph is
5 an accurate summary of everything that was in the
6 medical statement that was shown to you?
7 A. Yes.
8 Q. Do you know whether you had that information available
9 to you, therefore, at the time when you consulted with
10 Andrea McKee?
11 A. This had been sent to me. Yes, I would.
12 Q. Had you wished to see the underlying statements,
13 presumably you would have been in a position to ask the
14 police officers who were available at the forthcoming
15 consultation to provide you with any information you
16 required?
17 A. Yes.
18 Q. Can I move on then to the 2nd March consultation itself?
19 Again, looking at your advice -- I am not going to turn
20 it up at the moment -- looking at the opinion you
21 drafted in relation to it, is it fair to say the factors
22 that bore on your assessment of Andrea McKee's
23 truthfulness on the Pendine issue were not simply the
24 absence of any record in Pendine or in her GP of the
25 attendance and not simply the absence of any telephone
49
1 contact between the two covering the weekend, but the
2 way she then dealt with the proposition you then put to
3 her that there was no grey-haired doctor on duty that
4 night?
5 A. Yes. Her ability to produce an explanation for that,
6 which was also, in my view, dishonest, I thought was
7 quite concerning.
8 Q. Can you just remind us what that explanation was?
9 A. My recollection is that when asked about the grey-haired
10 doctor, she tried to suggest that, in fact, she had not
11 gone into the surgery with the child, but her partner
12 had gone into the surgery with the child, and I think
13 there was a reference to perhaps it was the person who
14 called them in who might have been grey-haired.
15 Q. So hadn't gone into the consulting room?
16 A. Hadn't gone into the room with the doctor.
17 Q. How did you consider that squared with the account that
18 she had given to Christine Smyth on 9th January, that
19 she could see the way the doctor had physically examined
20 the child in the consulting room?
21 A. It was just completely at odds with it. In my view, it
22 was just a way of trying to explain it away which got
23 her into a further lie.
24 THE CHAIRMAN: The trouble is one lie begets another?
25 A. It is the old thing about "What a tangled web we weave,
50
1 when first we practice to deceive". That was the view
2 that I strongly took.
3 MR EMMERSON: So you strongly took the view that she was
4 lying to you in the consultation.
5 A. Yes.
6 Q. I want to ask then, in the light of that, the process of
7 reasoning through which you went to come to the
8 conclusion that a lie she that had told, in your view,
9 and repeated to you about the visit to Pendine was such
10 as to so undermine her general credibility on the
11 central issue that you felt that she could no longer be
12 put forward as a witness likely to be believed on her
13 central evidence.
14 That was your position, as I understand it.
15 A. Yes.
16 Q. First of all, in relation to that, is it a relevant
17 consideration, when you are deciding whether
18 an individual's lie goes to the heart of their
19 credibility on the central issue, to ask yourself
20 whether it's a lie that's admitted or persisted in?
21 A. Yes, very much so.
22 Q. You have said in answer to questions from the Chairman
23 that in this jurisdiction the principle that answers to
24 collateral questions as to credit are final is
25 a principle that is observed, although there may be some
51
1 flexibility around the edges?
2 A. More honoured in the breach than the observance,
3 I think.
4 Q. Can I just understand from you what that principle
5 amounts to, as you understand it?
6 A. Well, my experience of this is that a witness who is
7 telling lies on non-central issues will be
8 cross-examined rigorously about those lies and
9 challenged on those lies.
10 Q. Although you may not be able to call evidence in
11 rebuttal as a matter of strict law where you wish to
12 challenge a collateral answer as to credit, there is
13 nothing, is there, in the principles operated in this
14 jurisdiction or in England that stops a cross-examiner
15 putting material rigorously and forcefully?
16 A. Not at all.
17 Q. So it would it have been entirely --
18 THE CHAIRMAN: Mr Emmerson, in England you can certainly put
19 it, but you would not, would you, be able to say, "Mr so
20 and so says you did this or you didn't do that"? You
21 could simply put the assertion, "You did say this or
22 didn't say that".
23 MR EMMERSON: If I can put it this way, if one brings it
24 down to the specifics of this case, may I take it
25 through that rubric with the witness? Would that help?
52
1 THE CHAIRMAN: Yes, certainly.
2 MR EMMERSON: Would it have been entirely permissible to put
3 to Andrea McKee that she had told Christine Smyth that
4 she had been in the consulting room with a grey-haired
5 doctor?
6 A. Yes.
7 Q. Would it have been entirely legitimate to put to her
8 that she had then told you something quite the reverse?
9 A. Yes, because I would have arranged for a statement to be
10 served in which that was set out and served on the
11 defence.
12 Q. You would have needed to disclose that material to the
13 defence?
14 A. Of course.
15 Q. So it would have been legitimate to put those two
16 matters to her. It would have been legitimate to put to
17 her there were no telephone records or any other record
18 of her attendance --
19 A. Yes.
20 Q. -- and to probe her on how she could have --
21 THE CHAIRMAN: I am not sure about that. Once you say there
22 is no record of making a telephone call, you are
23 disclosing evidence which you will not be allowed to
24 call. You can say, "You made no telephone call",
25 certainly.
53
1 A. In what I would regard as the statement that I would
2 have served on the defence, the statement would have
3 included the fact that there were no telephone records.
4 THE CHAIRMAN: Oh, yes. I follow that.
5 A. All of that would have been given to the defence.
6 THE CHAIRMAN: It doesn't follow that you can then put that
7 in cross-examination, because you can't -- that's
8 equivalent to saying, "Mr so and so said you did or
9 didn't do that".
10 MR EMMERSON: I would certainly reserve -- if that becomes
11 a point of central importance to the Panel, I would
12 certainly reserve questions as to whether that would be
13 a proper question, but it would perhaps, I think, be
14 a matter on which different judges may take different
15 views.
16 A. I am not sure I would have objected to that question
17 being asked of her in any event.
18 Q. Certainly in my experience it is a question of it being
19 routinely put in such circumstances without objection.
20 It may be that some judges would take a different view.
21 It is not for me obviously to give evidence about it.
22 THE CHAIRMAN: It certainly transgresses the rules, because
23 you are simply telling someone what the evidence is. It
24 is rather like the advocate who says, "My client says so
25 and so". A good judge stops that.
54
1 MR EMMERSON: Yes. One thing is clear, though. If
2 Andrea McKee had admitted in evidence, as indeed she
3 admitted during her evidence here, the two different
4 versions of events she had given as to whether she was
5 with the child in the consulting room, that is something
6 which, in your view, would have affected her
7 credibility?
8 A. Yes.
9 Q. Can you just explain to us in your own words why it is
10 you took the view that that type of cross-examination
11 could be so damaging to Andrea McKee on the central
12 questions?
13 A. It was utterly pointless, first of all, to go down the
14 road of telling those lies. A witness who keeps on
15 telling the same lie again and again, brazenly, even
16 though it is made clear to that witness that that is
17 a lie, in my view is a witness who just finishes up
18 being so damaged in cross-examination that it taints
19 their whole evidence.
20 Worse than that, I have seen many examples of
21 a witness who persists in a lie about some issue which
22 is not central, and then, when they get into any
23 difficulty at all in giving their evidence on the main
24 issue, simply revert to what they glibly do at the best
25 of times.
55
1 She was an easy liar, I thought, someone who just
2 resorted to a lie very quickly
3 Q. Do you have experience of other cases in the past where
4 lies on what might be described as a tangential issue
5 have affected a witness' credibility?
6 A. We've had a long history of those cases here for a very
7 long time of witnesses who --
8 THE CHAIRMAN: I am sure we have all seen that, Mr Emmerson.
9 A. Witnesses who were attacked on peripheral or ancillary
10 issues for days, and days, and days, and by the time
11 they were finished giving their evidence, the evidence
12 on the main issue was just incredible.
13 MR EMMERSON: Mr Underwood put to you earlier on, based on
14 an answer that you had given, that the concept that this
15 was a big lie depended upon the terms on which the
16 adjournment had been granted.
17 Can I just ask you to comment on that in the light
18 of the evidence you have just given?
19 A. If I take the lie itself out of any context and just
20 look at it itself, she just was prepared to lie about
21 that weekend. She was prepared to lie to one or other
22 of the two counsel who had consulted with her. She was
23 just prepared to tell a lie about a major issue, and
24 whether it was the reason for the adjournment or not,
25 I don't think at the end of the day it really would have
56
1 mattered too much to me. It was just a very important
2 issue about which she lied, switched her lie, changed
3 her story. I regarded that as very concerning.
4 I remember being quite shocked coming out of the
5 consultation that, no matter how many attempts I had
6 given her to say, "Look, all right. It is a lie", she
7 would just not give way.
8 REV. BARONESS KATHLEEN RICHARDSON: May I just perhaps
9 reveal my complete naivety? Isn't the whole point of
10 calling Andrea McKee at this point that she had
11 a propensity for lying? I mean, she had told two
12 stories of the same thing, and it would have to be
13 tested which of her versions of what had happened was
14 the truth.
15 A. That was inevitable.
16 REV. BARONESS KATHLEEN RICHARDSON: A small lie about a sick
17 child seems to me fairly irrelevant.
18 A. I am not able to answer your judgment call about that.
19 My own view is that that was not a small lie about
20 a sick child. It was an important issue going to the
21 process itself about which she was prepared to lie and
22 lie. No matter what she was confronted with, she was
23 prepared to lie and she was prepared to switch and
24 change.
25 You have already got the problem of a flawed
57
1 witness. When you have a flawed witness already, what
2 you do not need is a witness who, on an issue that is
3 seemingly unimportant, is prepared to tell a lie and
4 stick to it through thick and thin.
5 REV. BARONESS KATHLEEN RICHARDSON: Wasn't the whole point
6 of it then seeking to find other corroborating evidence
7 which would tell which of the lies that she was -- which
8 of the versions she was telling could possibly be the
9 truth?
10 A. Yes, but the witness -- at the end of the day, you have
11 got to be satisfied that intrinsically the witness is
12 a truthful person.
13 I had got to the stage where I was not satisfied
14 that she was intrinsically a truthful person. If it
15 hadn't been for her evidence, if you took her evidence
16 out of the equation altogether, what was left would not
17 have been sufficient to -- for me to say there is
18 a reasonable prospect of conviction, that other --
19 surrounding evidence. You needed her evidence and you
20 needed her evidence to be believed. That was my view.
21 Whether your view is different or not is neither
22 here nor there for me at the moment, but --
23 REV. BARONESS KATHLEEN RICHARDSON: It is my reflection
24 which suggests it is rather odd that if only the people
25 who come to give evidence in court are the ones we are
58
1 going to believe are true before we start, then there
2 would be very few witnesses.
3 A. No, I don't think I have ever held that view.
4 MR EMMERSON: Sir, I was asking about the relevance of the
5 reasons for the adjournment.
6 Can we just look briefly, please, at [33911] which
7 is an excerpt from the summary of events that you were
8 provided with in the letter that we looked at a little
9 earlier on prior to your consultation? If we look at
10 paragraph 17, please:
11 "On 22nd December, all legal representatives
12 gathered at Craigavon Magistrates' Court where
13 [xxxxxxxxxxxxxxxxxx] was due to sit for the committal
14 proceedings. The information about the child's illness
15 was given verbally to the court by prosecuting counsel,
16 Christine Smyth. It was agreed by the defence that if
17 it was the case that Andrea McKee was unable to travel
18 because of her child's sickness, the court should grant
19 an adjournment, but as it was not possible at that time
20 for the prosecution to provide any documentary
21 confirmation of the child's condition, the adjournment
22 should be conditional upon the Crown producing
23 satisfactory medical evidence at a later date. The case
24 was then fixed to be mentioned again in early
25 January 2004, and if all was in order, it was agreed
59
1 that 8th March would be fixed for the resumption of the
2 committal proper."
3 Now, just pausing there, I should make it clear that
4 the manuscript note that was shown to the Panel a little
5 earlier on is Mr Ivor Morrison's manuscript note, that's
6 to say the author of this document. So presumably from
7 that note this passage appears. This is information
8 presumably which would have been available to you
9 A. Yes.
10 Q. That was your understanding at the time?
11 A. Yes.
12 MR EMMERSON: Thank you.
13 Finally this. On this I address the Panel. I have
14 had an opportunity to discuss with Mr Underwood in
15 advance whether or not any suggestion that there was
16 an irrelevant consideration or other motive for
17 abandoning the Atkinson prosecution is a suggestion that
18 ought to be put to this witness, given the fact that the
19 decision was made on his advice, and my understanding is
20 that it is not an allegation that Mr Underwood wishes to
21 pursue. So I don't take it any further.
22 THE CHAIRMAN: Yes.
23 Questions from MR DALY
24 MR DALY: Mr Simpson, my name is Daly and I appear for
25 Andrea McKee.
60
1 You have referred to your assessment as to whether
2 Ms McKee was a truthful person or not. In coming to
3 that assessment, presumably you would have considered
4 a number of different factors in relation to Ms McKee,
5 not just what you refer to as this lie. Is that right?
6 A. Yes.
7 Q. Would it have been relevant that she had attended court
8 already on 27th October?
9 A. Yes, I considered that relevant.
10 Q. Would it have been relevant that she maintained contact
11 with the police on a reliable basis?
12 A. Yes.
13 Q. Not only the police in Northern Ireland, but the police
14 in Wales?
15 A. I think I knew about the police in Wales. I'm not
16 absolutely certain.
17 Q. Would it have been relevant that she was reliable in her
18 communications and reliable in her attendance at
19 consultation?
20 A. It could be relevant she turned up. Yes, I suppose so.
21 I am not sure I can take it much further than the fact
22 she turned up.
23 Q. Well, turning up is quite a matter of considerable
24 import, isn't it?
25 A. I would accept that, yes.
61
1 Q. Doesn't it show that a person is able to communicate,
2 they are able to correspond and they are able to carry
3 through on an agreement to meet with someone?
4 A. It shows that, when they were asked to turn up at
5 a place, they turned up at a place. I am not sure about
6 correspondence or anything else.
7 Q. She is not a professional witness, if you like.
8 A. No.
9 Q. She's not a medical witness, not a police witness, not
10 a professional person involved in proceedings. She is,
11 if you like, a citizen in day-to-day life, not
12 professionally involved in this case. Isn't that right?
13 A. Yes.
14 Q. There was nothing, if you like, in it for her to
15 participate?
16 A. I don't know the answer to that, Mr Daly. I wouldn't
17 know the answer to that. I am assuming that's right,
18 but I couldn't say definitely whether there is or isn't.
19 Q. But you were not aware of any inducement towards her to
20 participate?
21 A. No.
22 Q. Is it fair to say that in addition to her attendance, in
23 addition to her communications with you, in addition to
24 her court attendance, she at all times expressed her
25 willingness to participate?
62
1 A. As far as I was aware, up until 19th December that seems
2 to have been the case. My recollection is then that
3 when she was phoned on the 19th and spoke to the woman
4 constable, I think it was, she made no reference to the
5 fact that there would be a difficulty, although the
6 child was apparently ill at that time.
7 Q. Up until December of that year quite a passage of time
8 had elapsed. We are talking about quite a period of
9 time during which she had shown her commitment, in which
10 she had shown her willingness to part take in
11 proceedings. Isn't that right?
12 A. I don't know what the passage of time was, but I accept
13 what you say.
14 Q. In fact, your initial opinion, which has been referred
15 to this morning, was a very positive opinion and
16 referred to a number of very positive matters in
17 relation to the potential prosecution. Isn't that
18 right?
19 A. Yes.
20 Q. Your second opinion really was a volte face, if you
21 like, Mr Simpson?
22 A. It was based on seeing the witness. My recollection is
23 I was quite shocked at how brazen she was.
24 Q. Did you put that in the context of a woman whom you have
25 agreed was very facilitatory up to that point?
63
1 A. Of course. It wasn't taken out of context. I was
2 actually just shocked at the fact that she would just
3 sit there, look me straight in the eye, and lie, and
4 lie, and lie.
5 Q. Someone who up until this time had not demonstrated any
6 propensity to lie, anything other than --
7 A. I have to say, Mr Daly, that's not right. She already
8 had a propensity to lie, because she had made a lying
9 statement initially.
10 Q. Someone who had shown commitment to the proceedings?
11 A. That's a different thing entirely. She was already
12 a witness who had been prepared to be involved in
13 a conspiracy and made a dishonest statement. That has
14 to be factored into the mix as well.
15 Q. When she entered her plea of guilty to the criminal
16 charge in this matter, do you think she was lying about
17 that?
18 A. No, I don't.
19 Q. How important a point do you think that would be in
20 making an assessment as to her credibility, that she had
21 entered a plea of guilty in criminal proceedings,
22 Mr Simpson?
23 A. She is therefore an accomplished witness who has been
24 convicted. That's always a consideration. Most of
25 those cases we talked about earlier, that were alluded
64
1 to earlier, they were all exactly the same types of
2 cases where dishonesty had been followed by a plea of
3 guilty and a sentence, and then you are facing the
4 witness who is already a flawed witness. You have to
5 look again at the witness carefully. I would have had
6 no problem if there had been a rational explanation for
7 it. I don't think I would have had a problem, Mr Daly,
8 if she said to me, "All right. I didn't want to come
9 over. I got cold feet at the last moment. Here is the
10 explanation for it". I would have produced that as
11 a statement, given it to the other side and on we would
12 have gone. But it was her ability to sit and fix me
13 with her eye and just lie through her teeth.
14 Q. Isn't it possible, Mr Simpson, she was telling the
15 truth?
16 A. About what?
17 Q. In particular about (a) her son's illness and (b) her
18 attendance at the medical centre?
19 A. Well, certainly the son appears to have had some sort of
20 medical history. I don't think it was possible she was
21 telling the truth about the visits to the surgery over
22 that weekend.
23 Q. Isn't it possible that records can be defective,
24 Mr Simpson?
25 A. Mr Daly, of course anything is possible. We know that.
65
1 Really we have to face reality. I am sitting here. We
2 are dealing with a witness who is going to be
3 a principal witness in a serious criminal case. There
4 is not a shred of evidence that anything she has told
5 the police about that weekend is true and I am supposed
6 to say, "Well, it is possible all records are wrong".
7 In fact, I think I made a reference to it in the
8 opinion about: unless the whole system has fundamentally
9 broken down, then she is telling lies. That's the view
10 I took and, quite frankly, that's the view I still hold.
11 Q. If we look briefly at [33916], in relation to your
12 opinion could I have paragraph 3 highlighted, please?
13 Now, isn't it clear from what you have written there
14 that on first blush there were no records of a visit on
15 the 11th, but after different investigation it
16 transpired that a visit had been carried out?
17 A. Yes.
18 Q. So isn't it clear that not only in general terms, but
19 specifically in relation to this case, this woman, this
20 patient, that records can be defective?
21 A. That record. The difficulty with the proposition you
22 are advancing to me, Mr Daly, is that the police had
23 spoken to every single member of the practice. They had
24 gone through all the telephone records. They had gone
25 through all the documentary records and there wasn't
66
1 a shred of anything which suggested that she had made
2 contact with the surgery. They had done what they
3 could, Mr Daly. Unless all the records had disappeared
4 miraculously, then in my view she was telling lies.
5 Q. Well, we were dealing with the medical profession. We
6 were dealing with a system --
7 A. No, I'm not sure what you mean by dealing with the
8 medical profession. Is that supposed to mean records
9 just disappear?
10 Q. No. As a matter of fact we are dealing with the medical
11 profession. As a matter of fact there were no records
12 as referred to in paragraph 3 of your statement in
13 relation to a visit on the 11th, which subsequently
14 transpired.
15 A. Yes.
16 Q. This is not a counsel of perfection, is it, Mr Simpson?
17 A. No, but what happened was, when the police couldn't find
18 the records, they made the enquiries and lo and behold,
19 there it was, she did appear. But having made all those
20 enquiries -- there being no records, having made all
21 those enquiries, there was not anything that suggested
22 that she had been there.
23 Q. At its worst, Mr Simpson, at its worst, this was
24 a mother with a sick son.
25 A. Then I don't know whether you expect me to agree with
67
1 what is a comment. Yes, she had a sick son, but that's
2 not what I was concerned about.
3 Q. Well, you were concerned, you say, as to how this would
4 look before a jury.
5 A. Yes.
6 Q. A jury made up of men and women. Isn't that right?
7 A. Yes.
8 Q. I am suggesting to you that the jury, in carrying out
9 an assessment on this issue, would have to consider
10 that, at its worst this, was a mother with a sick son
11 who was unable to attend court because of her son's
12 illness.
13 A. Mr Daly, we can all have our views about what the jury
14 might do. my view was the one I have expressed. I had,
15 at that stage, a lot of experience of prosecuting cases
16 where witnesses were attacked on peripheral issues.
17 I have seen what has happened, watched cases fall apart
18 and that's what I thought would happen in this case.
19 Q. You refer to it consistently as a "big lie", Mr Simpson.
20 A. It was a big lie, Mr Daly.
21 Q. I am suggesting to you it wasn't a big lie, if a lie at
22 all.
23 A. I disagree.
24 Q. How was it a big lie for a mother to be more concerned
25 about her son on one occasion?
68
1 A. But that wasn't the lie that she was telling. She was
2 not saying, "I was more concerned about my son". She
3 was saying, "I went to the Pendine medical centre",
4 whatever number of times it was, "on that weekend".
5 That was all untrue. When challenged about that --
6 Q. It wasn't all untrue, Mr Simpson.
7 A. Well, there was no evidence to support all the
8 propositions she was making.
9 Q. She had been to see the doctor in relation to her son on
10 several occasions.
11 A. On the 11th -- the 1st, the 11th and the 22nd I think
12 are the dates that came out.
13 Q. Do you maintain your position that this was some big
14 lie --
15 A. I do.
16 Q. -- on a core issue?
17 A. Yes, an important issue, yes.
18 Q. I am suggesting to you it was a collateral issue,
19 Mr Simpson, and these were committal proceedings only.
20 A. But it was an issue collateral to the issue which would
21 effectively be her evidence at the trial. Yes, I accept
22 that.
23 The fact that these were committal proceedings was
24 neither here nor there, because I was not interested in
25 what the committal proceedings were going to produce.
69
1 What I was interested in was what was going to happen at
2 the trial. I took the view she was not a witness
3 I would want to rely on when it came to giving her
4 evidence.
5 Q. You blew this issue out of all proportion.
6 A. I don't agree, Mr Daly.
7 Q. You did not put it in context at all.
8 A. I disagree with that.
9 Q. The volte face between your two opinions is really quite
10 striking, I would suggest to you.
11 A. Well, that's a comment.
12 Q. I am suggesting to you that it was --
13 A. One was based on not having seen her. The other was
14 based on having seen her. It would be far worse if it
15 had been the other way round.
16 Q. How would it have been worse?
17 A. Well, if I had been making a final judgment not having
18 seen her, then you would be open -- you would be able to
19 criticise me much more strongly, in my view, but I was
20 asked to and did take the opportunity to go and meet her
21 to assess her as a witness, as we all do, Mr Daly --
22 Q. Just --
23 A. Just a moment now. You asked me a question. Please do
24 let me finish.
25 I was asked to go and assess her and I went and
70
1 assessed her and took the view she was a liar.
2 Q. During the course of those instructions, or during the
3 course of dealing with those instructing you, was any
4 opinion expressed to you by those instructing you or
5 through your instructions in relation to this lady?
6 A. What do you mean by that?
7 Q. Was any view expressed towards Ms McKee by those
8 instructing you?
9 A. I don't remember. I had notes of the earlier
10 consultation. I can't remember now what they said, but,
11 quite frankly, it wouldn't make any difference to me,
12 Mr Daly.
13 Q. Would it not?
14 A. No.
15 Q. Why not?
16 A. Because I was asked to go and assess this lady's
17 credibility myself. I wouldn't rely on other people's
18 assessment of her at that stage.
19 Q. Was it correct, Mr Simpson, that she expressed
20 a willingness to return to court on a later date?
21 A. Yes, I think so.
22 Q. And she engaged in a process of identifying appropriate
23 dates and suitable dates?
24 A. I accept what you are saying. I don't know the answer
25 to that, but I accept -- if that's what appears in the
71
1 papers, then I accept that.
2 MR DALY: Thank you.
3 THE CHAIRMAN: Mr Simpson, what weight, if any, one way or
4 the other, did you attach to her plea of guilty?
5 A. Well, to get where we were, she had to have pleaded
6 guilty. Of course, I was aware of that and I -- in due
7 course, that evidence would have been served, the fact
8 that she had pleaded guilty. It is an important issue
9 that she has faced up to the fact she has lied in the
10 past and entered into a conspiracy and has been dealt
11 with for that and has received her sentence. That, of
12 course, is an important issue.
13 THE CHAIRMAN: How did you think that would affect the
14 balance? What sort of rate would you give it?
15 A. If you were to take her oral evidence out of the thing
16 completely and just prove the fact she had made the
17 earlier statements and had been convicted with the other
18 evidence surrounding it, that would not have been
19 enough, in my view, to have resulted in a conviction.
20 Her evidence was very important and I regarded her
21 evidence as the mainstay, as it were, the rest being
22 issues which would show she was tending to tell the
23 truth, but her evidence was very important.
24 THE CHAIRMAN: Thank you. Mr Underwood?
25 MR UNDERWOOD: Nothing arising. Thank you. Forgive me.
72
1 Thank you very much, Mr Simpson.
2 A. Thank you.
3 (The witness withdrew)
4 THE CHAIRMAN: We will break off now until midday.
5 (11.40 am)
6 (A short break)
7 (12.00 noon)
8 MR UNDERWOOD: John Devlin, please.
9 THE CHAIRMAN: Just before you do, I will give my ruling.
10 R U L I N G
11 THE CHAIRMAN: Mr McKillop, the applications you make are
12 granted. I think you have seen my notes --
13 MR McKILLOP: I have indeed.
14 THE CHAIRMAN: -- which I think sufficiently encapsulate the
15 reasons for my ruling. To avoid losing time by having
16 to empty the court, it is easier if I just say on that
17 basis the applications are granted.
18 MR McKILLOP: Thank you.
19 MR UNDERWOOD: Mr Devlin then, please.
20 MR JOHN DEVLIN (sworn)
21 Questions by MR UNDERWOOD
22 MR UNDERWOOD: Morning, Mr Devlin.
23 A. Morning.
24 Q. My name is Underwood. I am Counsel to the Inquiry.
25 I have some questions for you. It may well be that some
73
1 others will have some after that. Sorry to have kept
2 you waiting.
3 May I ask your full names, please?
4 A. John Devlin.
5 Q. Can we have a look at what I hope is your witness
6 statement at page [81622]? This was prepared at a time
7 when, for various technical reasons, you had a cipher.
8 If we flick through the six pages of this, can you
9 identify that as your statement?
10 A. It is, yes.
11 Q. Thank you. Are the contents true?
12 A. They would be, yes.
13 Q. Thank you. Just a few extra questions.
14 You deal in paragraph 10 with what was, in fact,
15 a second search of the home of Allister Hanvey. It is
16 at page [81623]. We know that there had been a search
17 on 10th May 1997 that had come up with a few items of
18 clothing. There was a further search which you deal
19 with here at which you attended on 13th May. You deal
20 with a notebook entry and the fact you now have no
21 memory of it.
22 Can I try to press you on that a little further? It
23 is not clear to us at present why that second search was
24 conducted. Have you any information about that?
25 A. Well, the only thing I can imagine is fresh information
74
1 come to light in relation to clothing. That's why the
2 search was conducted on this occasion, and we were
3 instructed then to carry out the search.
4 Q. We also know that the question whether there was or had
5 been a jacket in particular went to perhaps the question
6 of the murder, but also went to the question of
7 an allegation against Reserve Constable Atkinson.
8 As far as you were concerned, were you conducting
9 this search as part of the murder investigation?
10 A. Yes, it would have been, I would imagine, yes.
11 Q. Thank you. Then in paragraph 11 over the page at
12 [81624], you tell us:
13 "On 15th May 1997 I interviewed Andrew Allen. We
14 would have been briefed to have conducted the interview
15 which would have included specific intelligence."
16 Can you help us at this remove about the briefing of
17 that? Were you actually briefed by other officers or
18 was this a self-briefing?
19 A. At this moment in time I can't remember exactly what
20 took place in relation to the briefing, but I would
21 imagine we were briefed, I think, by
22 Detective Inspector Irwin in relation to this interview,
23 a verbal briefing, and I think it follows on what was
24 specifically put to this person during interview, and
25 that would have been the content of our briefing to
75
1 pursue those issues.
2 Q. Right. Thank you very much. If we go to page [81625],
3 paragraph 19, again, when you signed this witness
4 statement, we were using ciphers for all sorts of
5 reasons.
6 A. Yes.
7 Q. What you are relating here is a witness statement you
8 took from Sergeant P89. You say that you
9 interviewed him on 28th December 2000 and took the
10 statement. You say you endorsed the HOLMES action,
11 which said:
12 "While moving a group of loyalists into West Street
13 following the assaults, one person in the group was
14 reluctant to move and was forced back by the subject.
15 At one stage RC Atkinson warned subject about this
16 person, that he was an expert and black belt in martial
17 arts. He named the person as Hanvey."
18 You conclude that by saying:
19 "I don't know why this information was not obtained
20 in 1997."
21 Now, we know that Sergeant P89 was on the scene
22 when the riot, for want of a better word, was in
23 progress, and that he was the senior officer there apart
24 from Inspector McCrum, and that, after that, the
25 sergeant in due course went back to the police station
76
1 and was the senior officer at the police station for
2 a bit, and that he wrote a very short statement on the
3 morning of 27th April, which made no mention of this.
4 Can you help us about what the position ought to
5 have been in 1997 about debriefing somebody who had been
6 in his position? Would you have expected a sergeant to
7 be senior enough, as it were, to be able to debrief
8 himself or would you have expected detectives to take
9 him through what he had seen?
10 A. Well, I think on this occasion the sergeant would have
11 been capable, quite capable, of providing a statement or
12 debriefing in relation to this particular incident
13 without the assistance of a detective. Perhaps at that
14 moment in time -- I can't speak for Sergeant P89
15 obviously, but just speaking generally, because it
16 turned out to be a murder investigation, obviously it
17 required further investigation. So perhaps maybe the
18 debrief might not have been sufficient.
19 Q. Fair enough. Again, I don't want to personalise it to
20 any knowledge you might have about Sergeant P89, but
21 take the average RUC sergeant in 1997 who has been at
22 a scene of what I'd describe as a riot -- you know what
23 I am describing there --
24 A. Yes.
25 Q. -- and who knows that two people have been taken to
77
1 hospital and knows that one of them might -- at least
2 one of them might be seriously injured. Is this fair:
3 your expectation would have been that the average
4 sergeant would have debriefed himself to the extent of
5 recording this sort of confrontation?
6 A. Yes.
7 Q. Then, if we look at paragraph 18, you deal with some
8 work that was done in October 2000 when you were a crime
9 squad officer. You say you were briefed by Detective
10 Chief Inspector K, as we are calling him. You say:
11 "At this briefing I believe I would have been fully
12 briefed about the allegation against Robert Atkinson and
13 the conspiracy involving others. I believe at this
14 briefing I was tasked with carrying out financial
15 investigations linked to the Hamill case because on
16 19th October 2000 I made applications for orders before
17 a judge in relation to the investigation."
18 Now, we know that as a result of work that you did
19 in 2000 the police came into possession of ATM records
20 which showed that Allister Hanvey was around the town in
21 the early hours -- around, I think, 8 o'clock, something
22 like that --
23 A. Yes.
24 Q. -- on the morning of 27th April. I wonder if you can
25 help the Panel about the degree of hindsight we should
78
1 be using here. That's work you did in 2000. Is that
2 work that should reasonably have been expected of
3 detectives in 1997, though?
4 A. Well, it was available, put it like that, because the
5 powers were there, which I used, under PACE to get
6 production orders. They were there. But, in fairness,
7 probably financial investigations weren't an obvious
8 line of enquiry possibly. It is only probably since
9 2000 onwards that, due to money laundering, etc,
10 financial enquiries do be important in investigations.
11 Q. Thank you. The final matter I want to ask you about is
12 some dealings you had with Andrea McKee. We see those,
13 for example, at page [81627], paragraph 28. We know you
14 were party to the interview with DCI K on
15 10th April 2001. You say there:
16 "During my involvement with Andrea McKee ... she was
17 not offered any inducements either before or after
18 interview to ensure that she told the truth or to ensure
19 that she gave evidence against others in the future."
20 Can you give us your impression of her? I know it
21 is a bit late on.
22 A. From what point of view?
23 Q. Of her truthfulness?
24 A. I believe the account she gave us during the interview
25 was truthful.
79
1 Q. This is obviously a woman who had on that account lied
2 in the first place?
3 A. Yes.
4 Q. So you are faced with a woman who has given two
5 versions?
6 A. Yes.
7 Q. Can you give us any indicators of why you thought she
8 was telling the truth this time round?
9 A. Well, I can only speak for -- the account she gave us
10 during interview was obviously free-flowing and made
11 sense, probably, and I don't think she had any reason
12 then to be telling any lies on this version of the
13 events.
14 Obviously, the first version of events was to
15 probably cover up what she was covering up, basically.
16 Q. How did she seem about it? Did she seem relieved or
17 guarded? Can you recall?
18 A. Well, I think probably it would be fair enough to say
19 she was glad to get it off her chest, put it that way,
20 you know.
21 Q. Did you have any impression about her expectation that
22 she would end up in court as a result of this?
23 A. Well, she was left in no doubt that the matter would be
24 reported to the Director of Public Prosecutions.
25 MR UNDERWOOD: That's very helpful, Mr Devlin. Thank you.
80
1 As I say, others may have some questions for you.
2 MR WOLFE: No questions.
3 THE CHAIRMAN: May I just ask you about the second search of
4 the Hanvey house? Can you remember if you were looking
5 at all for signs of burnt clothing?
6 A. I can't recall now. It was just items of clothing.
7 I can't remember what specific items of clothing.
8 THE CHAIRMAN: If you had been instructed to search for
9 items of burnt clothing, would you have noted anything
10 about that in your record of the search?
11 A. On the search record?
12 THE CHAIRMAN: Yes.
13 A. It would have been -- whoever was completing the search
14 record I imagine would have had that included on the
15 search record.
16 THE CHAIRMAN: Thank you.
17 MR ADAIR: I have no questions at all.
18 Questions from MR McGRORY
19 MR McGRORY: Mr Devlin, I represent the family of
20 Robert Hamill. Just a couple of brief questions for
21 you.
22 Can you remember at all, when you searched the
23 Hanvey household, if you were directed towards any
24 outhouses?
25 A. I can't recall at this moment in time what the position
81
1 was, if it was a dwelling or outhouses, I just can't
2 remember. Perhaps that was on the search log what all
3 was searched, or it should have been included on the
4 search log what all was searched.
5 Q. I am sure you have had experience of searches before in
6 your career where, say, a farm situation where you were
7 directed to search not only the dwelling but also any
8 adjoining sheds or outhouses and so forth. You have had
9 that experience in your career?
10 A. Yes.
11 Q. But do you recall it? Do you have any memory at all?
12 A. I can't recall it, no.
13 MR McGRORY: All right. Thank you.
14 Questions from MS DINSMORE
15 MS DINSMORE: Mr Devlin, my name is Dinsmore. I appear on
16 behalf of Eleanor and Robbie Atkinson. I have just one
17 question for you.
18 If we could call up [04558], this simply relates to
19 items being looked for in a search. I note, if we just
20 go to the first paragraph establishing what the briefing
21 was, the brief included a silver for grey jacket. Were
22 you ever briefed to look for a blue Puffa jacket or was
23 it simply in relation to specific items of clothing is
24 the only thing worthy of note that was --
25 A. I can't recall.
82
1 Q. You can't recall?
2 A. No.
3 Q. There is a note in relation to a silver and grey -- if
4 you had been requested to search for that, is that
5 likely to have been noted?
6 A. It would indeed.
7 MS DINSMORE: Thank you very much.
8 Questions from MR DALY
9 MR DALY: Mr Devlin, in relation to Andrea McKee, if we
10 could just look at page [22165], please, just the bottom
11 six lines, if they could be highlighted, please, is it
12 correct there that you have noted actually that:
13 "She said this was always going to happen and wanted
14 the whole thing cleared up once and for all so that she
15 could get on with her life."
16 A. Yes.
17 MR DALY: Thank you.
18 MR UNDERWOOD: I have no questions arising from that. Thank
19 you.
20 THE CHAIRMAN: Thank you.
21 MR UNDERWOOD: Thank you very much, Mr Devlin.
22 A. Thank you.
23 (The witness withdrew)
24 MR UNDERWOOD: Anthony Byrne, please.
25
83
1 MR ANTHONY BYRNE (sworn)
2 Questions from MR UNDERWOOD
3 MR UNDERWOOD: Morning, Mr Byrne. My name is Underwood and
4 I am Counsel to the Inquiry. I have a few questions for
5 you. It may well be there will be a few more from other
6 people here.
7 What's your full name, please?
8 A. Anthony Byrne.
9 Q. Thank you. You have kindly given us a witness
10 statement. Can I take you to that at page [81813]?
11 Firstly, if I can just identify on screen with you
12 whether this document is, in fact, your witness
13 statement. It goes to two pages and a little bit. If
14 we can just flick through those, is that your witness
15 statement?
16 A. Yes.
17 Q. I know there are a couple of revisions you would like to
18 make. If we go back to [81813], paragraph 4, in the
19 final line you talk about "the junction of
20 Woodhouse Street and Thomas Street". Do you mean "the
21 junction of Woodhouse Street and Market Street"?
22 A. That's right, yes.
23 Q. Then over the page, [81814], at paragraph 7 you say:
24 "When the man was getting out of the cab at their
25 home, he said that he wanted me to take them back up to
84
1 town."
2 Do you mean "them"?
3 A. No, it was "him", "take him back up to town".
4 Q. Subject to those revisions, is this statement true and
5 accurate?
6 A. Yes.
7 Q. I want, in fact, to look at page [81814], at
8 paragraphs 6 and 7. You say:
9 "What struck me about the couple was that the girl
10 said that they had been chased by a number of people.
11 She told me she had fallen and cut her knees. I do not
12 remember any mention of why they were being chased or
13 what it was about.
14 "When the man was getting out of the cab at their
15 home, he said that he wanted me to take them back up to
16 town. He wanted to face whoever had been chasing him
17 but his wife wouldn't let him go."
18 Do you now have a clear memory of that?
19 A. Sorry?
20 Q. Do you have a clear memory of those events?
21 A. Yes. Fairly clear anyway.
22 Q. We have now interviewed those two people.
23 A. Yes.
24 Q. We have given them anonymity so we are now not using
25 their names, but both of them tell us that, in fact, it
85
1 was the man who cut his knee, not the girl. What would
2 you say to that?
3 A. Well, I have heard his statement and, no, it was the
4 girl that was doing most of the talking and it was the
5 girl that said that she had fallen and cut her knees.
6 Q. They tell us -- and we are about to hear them give
7 evidence about it, but I want to give you the chance of
8 commenting on this -- that they were not chased at all.
9 A. Yes.
10 Q. They ran because they were scared of the area but that
11 there was nothing going on when they crossed the
12 junction. Can you comment on that?
13 A. Well, I wouldn't know whether anything was going on when
14 they crossed the junction or not, because I was a couple
15 of hundred yards away, but when they got into the cab
16 and that was the talk, you know, that she had been
17 running and I took it that she was getting away from or
18 running away from ...
19 Q. This may be important. Do you recall her saying she was
20 running away from people or do you just recall her
21 saying she was running?
22 A. This is what I am not quite sure about. At that time
23 I took it, and I have told the story since, you know,
24 that they were being chased. She fell.
25 Q. Okay. Again, because you have seen the statement, you
86
1 understand that the man is saying that it is not true
2 that he wanted to go back and face these people. Again,
3 would you like to comment on that?
4 A. Yes. He did say that, yes.
5 Q. What sort of state was he in at that point? Can you
6 recall? Was he angry, upset, agitated, calm, drunk?
7 A. I couldn't say whether he was drunk. The two of them
8 were in the car and whatever conversation was going on,
9 that's what I remember.
10 Q. But when he said he wanted to go back down there, how
11 was he expressing that to you? Was this forceful or was
12 it jokey?
13 A. No, no. When he got out of the car, he said he wanted
14 to go back up the town, and I couldn't have taken him
15 back up the town, I was called -- once I called in free,
16 then I was given a run to go to Lurgan, but I wouldn't
17 have been prepared to take him back up the town anyway.
18 Q. You say in your statement, going on there --
19 A. That's right.
20 Q. -- that:
21 "He wanted to face whoever had been chasing him but
22 his wife wouldn't let him go. She did not want him to
23 go; I would not have brought him back up anyway. I was
24 then called with another job."
25 Was this a long discussion, do you recall?
87
1 A. No, no, it wasn't.
2 Q. Did you get the impression she persuaded him not to go
3 anyway?
4 A. She said, you know, he wasn't to go back up the town.
5 The two of them were out of the car at this time.
6 Q. Give us this impression, if you can. If you hadn't been
7 called away on another job, do you get the impression
8 that, despite what his wife was saying, he would have
9 got back in the car and gone back into town with you?
10 A. No. I wouldn't have let him back into the car, because
11 I wasn't prepared to take him back up the town.
12 Q. Why were you not prepared to go back up the town?
13 A. I knew the situation. If he was going back up to face
14 somebody, it was too dangerous.
15 MR UNDERWOOD: Thank you very much indeed, Mr Byrne. As
16 I say, some other people may have questions for you.
17 Questions from MR O'HARE
18 MR O'HARE: Sir, if I may. Just a few matters, Mr Byrne.
19 At the junction at which you picked up this couple,
20 could you see the junction of
21 Woodhouse Street/High Street?
22 A. No, no.
23 Q. You are quite clear it was the lady who told you that
24 she had fallen?
25 A. Yes.
88
1 Q. Did you see anybody fall, either of this couple fall?
2 A. No.
3 Q. You were aware at the time that they had come from
4 St Patrick's Hall?
5 A. Yes. They had said that.
6 Q. They told you they had come from St Patrick's Hall?
7 A. Yes.
8 Q. Now, do you recall, were you actually told that they had
9 been chased by a number of people?
10 A. Sorry?
11 Q. Do you recall the lady or the man saying to you that
12 they had been chased by a number of people?
13 A. I can't remember the exact words, but that's what
14 I understood, that they were running away from a crowd.
15 Q. Yes. You would have -- the area in which you picked
16 them up, you knew that this was close to what was called
17 a flash point, the junction of
18 High Street/Thomas Street?
19 A. Where I picked them up was a couple of hundred yards
20 from that, yes.
21 Q. A couple of hundred yards?
22 A. Yes.
23 Q. Knowing that they came from St Patrick's Hall and they
24 were on foot, was it your understanding that they had
25 walked down past that junction?
89
1 A. Yes.
2 Q. Now, you were you were also told that the lady had
3 fallen and cut her knees?
4 A. Yes.
5 Q. Was any other injury mentioned to you?
6 A. No.
7 Q. When this Inquiry commenced, you were aware that the
8 Inquiry were looking for other witnesses who may have
9 seep or heard anything that may have been relevant to
10 the Inquiry as to what happened that night?
11 A. Yes.
12 Q. You remembered this incident in which you picked up this
13 couple in which they had said to you or given you the
14 impression that they had been chased --
15 A. Yes.
16 Q. -- and you intended then to contact this Inquiry?
17 A. At that time?
18 Q. Yes.
19 A. No, no.
20 Q. You went to the trouble of finding out the name of the
21 man whom you had picked up. Isn't that correct?
22 A. Yes.
23 Q. Indeed, you contacted him by telephone?
24 A. Yes.
25 Q. Was that to give him a heads-up, let him know that you
90
1 were going to contact this Inquiry?
2 A. Sorry?
3 Q. Why did you phone him or go to the trouble of getting
4 his phone number and then phone him?
5 A. I wanted to check. I wasn't sure where I had picked him
6 up. I knew I had picked him up and I remembered part of
7 the conversation. I couldn't remember where exactly
8 I had picked him up.
9 Q. Why did you contact this Inquiry then?
10 A. I wanted to give evidence. I thought it was relevant
11 that somebody was running away and got into a car.
12 Q. That somebody was running away and got into a car.
13 Was it also relevant to you that this person was
14 injured?
15 A. Sorry.
16 Q. Was it also relevant to you that one of the two of them
17 was injured?
18 A. Yes, yes.
19 Q. Was it relevant that they had come from
20 St Patrick's Hall on the night in question?
21 A. I understood them to have come from St Patrick's Hall,
22 yes.
23 Q. Did you think that was important, too, that they had
24 come from St Patrick's Hall?
25 A. How do you mean "Did you think it was important?"
91
1 Q. In terms of you contacting this Inquiry?
2 A. I can't understand what you are asking. I knew they
3 were coming from St Patrick's Hall. They had said that.
4 They had mentioned. I had taken others from
5 St Patrick's Hall that night around the town.
6 Q. Your understanding was that they had been chased --
7 A. Yes.
8 Q. -- and that had happened within a couple of hundred
9 yards of Thomas Street?
10 A. Yes.
11 Q. You are aware that's the locality in which this fight
12 developed --
13 A. Yes.
14 Q. -- and from which Robert Hamill subsequently died?
15 A. Yes.
16 Q. Have you any reason to make any of this up?
17 A. Sorry?
18 Q. Have you any reason to make any of this up?
19 A. No, I have not.
20 MR O'HARE: Thank you.
21 Questions from MR McCOMB
22 MR McCOMB: Mr Byrne, just a few questions for you, sir.
23 I represent a number of the people who were involved in
24 and charged with the assault on Mr Hamill. I don't want
25 to ask you about that in detail because you didn't see
92
1 any fight happen that evening.
2 A. No.
3 Q. In your statement to the Inquiry you described how you
4 had been up to St Patrick's Hall that evening -- is that
5 right -- to collect some fares?
6 A. Yes.
7 Q. Can you remember what was the last fare you collected at
8 St Patrick's, roughly what time of night it was?
9 A. No.
10 Q. Certainly you have described seeing a large number of
11 people outside St Patrick's Hall --
12 A. Yes.
13 Q. -- who obviously had been at some function there that
14 night.
15 A. Yes.
16 Q. Was it fair to say there was quite a crowd and
17 a shortage of taxis?
18 A. Yes.
19 Q. Now, normally, would those people have been going back
20 home to their part of Portadown? Would that have taken
21 them down Thomas Street and across the High Street or
22 Market Street and down Woodhouse Street?
23 A. If they were walking, yes.
24 Q. When you took your last fare, did you drive back into
25 town? Did you drive down Thomas Street?
93
1 A. I couldn't drive down Thomas Street.
2 Q. I see. If you were picking someone up from
3 St Patrick's, how would you get back down to, say, the
4 tunnel?
5 A. You have to go down to Tesco's, the bottom of the town,
6 and go round that way.
7 Q. Yes, I see. Are you quite certain at no stage you saw
8 any fighting going on in the middle of the High Street
9 or Market Street that night?
10 A. No. Just to explain it, there is a barrier around the
11 town and the taxis after 6 o'clock are not allowed
12 through the town. The barriers are up. So I would have
13 to go round the town all the time.
14 Q. When you picked up this couple, they had -- from what
15 you gathered from them, from what they told you, they
16 had come down Thomas Street --
17 A. Yes.
18 Q. -- and crossed over, and it has already been put to you
19 they say they were running --
20 A. Yes.
21 Q. -- and that's how one of them had fallen and cut his
22 jeans.
23 A. I understood it to be the girl that fell and cut her
24 knees, she said.
25 Q. There is clearly a difference about that, but it might
94
1 not be material.
2 So is it fair to say that, when you picked up
3 a fare, the last fare before this, that Thomas Street
4 was quite crowded with people standing outside the hall?
5 A. Yes, outside the hall, yes.
6 Q. So may we assume from that that these were people who
7 were leaving?
8 A. Yes.
9 Q. That the function was pretty well over?
10 A. Yes, they were waiting on taxis.
11 Q. Thank you very much. Perhaps I may just ask you: you
12 had recalled this many, many years later on and
13 you heard that the Robert Hamill Inquiry had started?
14 A. Yes.
15 Q. That jolted your memory I suppose. Is that right?
16 A. Yes.
17 Q. Had you, in the course of your private life or your
18 taxi-ing work ever discussed any of the events of the
19 night when Mr Hamill died with any other --
20 A. Yes. I said to different people -- I mentioned that.
21 I picked up a couple that night that had been chased and
22 brought them home.
23 Q. I take it there was quite a lot of conversation about
24 the whole event and what people had done and what they
25 had seen in the weeks and months after Mr Hamill had
95
1 died?
2 A. No, I wouldn't have heard of any -- I can't remember any
3 other people saying they had done or said anything.
4 MR McCOMB: Thank you very much.
5 MS DINSMORE: No questions.
6 Questions from MR McKILLOP
7 MR McKILLOP: Mr Byrne, I appear for P132 and P133, your
8 passengers at this time. Sorry. Can you hear me all
9 right?
10 A. Yes. I don't know what P ...
11 THE CHAIRMAN: Your two passengers.
12 MR McKILLOP: Obviously you were working in the Portadown
13 area at that time, 1997. Is that correct?
14 A. Yes.
15 Q. You had been for some time prior to that. Is that
16 right?
17 A. Yes.
18 Q. Did you reside in the locality?
19 A. No.
20 Q. But you would have been aware shortly after you had
21 picked up this fare that there had been a serious
22 incident in the town centre that night?
23 A. No.
24 Q. You weren't aware?
25 A. No.
96
1 Q. Were you not aware later on that day?
2 A. That night? No, I can't remember. That was the early
3 hours of the morning, I imagine.
4 Q. Yes, but later on that day, did you listen to the news?
5 A. No, I can't remember recalling at that time anything.
6 Q. At some point did you become aware that two people had
7 been assaulted that night and that there had been
8 a serious incident of public disorder?
9 A. No. I had heard -- I don't know how long it was after,
10 maybe days, or a week, that there had been one fellow
11 attacked in the town.
12 Q. When you heard that, did you go to the police?
13 A. No.
14 Q. Were you aware then that Robert Hamill then died?
15 A. Yes.
16 Q. Did you go to the police at that point?
17 A. No, no.
18 Q. Is there any particular reason for that, Mr Byrne?
19 A. Why I didn't go to the police?
20 Q. Yes.
21 A. Well, I didn't think there was an Inquiry. I didn't
22 know anything about it at that time.
23 Q. Now, if you could just bring up paragraph 8 of your
24 statement, page [81814], you came forward to the Inquiry
25 in the early part of this year --
97
1 A. Yes.
2 Q. -- because you remembered about this couple.
3 A. Yes.
4 Q. Isn't that correct? And because they had been chased?
5 A. Yes.
6 Q. Is it your clear recollection that you had been told
7 they had been chased rather than them being involved in
8 anything else?
9 A. It was my clear recollection ...?
10 Q. That they had been chased?
11 A. Yes, from what they said, yes.
12 Q. Is that still your recollection today, that they had
13 been chased, or, rather, that they had been running?
14 A. Well, I have heard in the meantime, their statement,
15 they said they had not been chased.
16 Q. Yes.
17 A. That makes me wonder if I got it exactly right or not,
18 but what I heard that night, if I remember that night,
19 that they had been chased, they'd run down the street
20 and she cut her knees.
21 Q. Yes. I am just wondering, are you getting it mixed up?
22 Have you got this in your mind that they were running
23 away as opposed to running? Could you have made that
24 mistake?
25 A. I could, yes.
98
1 Q. Yes. You didn't know these passengers at that time.
2 You didn't know their identities. Isn't that correct?
3 A. Yes.
4 Q. The next sentence, paragraph 8, you say:
5 "I later found out who the man was."
6 A. Yes.
7 Q. How did you find that out?
8 A. I asked one of the other taxi drivers that worked at
9 that time there, and he wasn't quite sure. He thought
10 it may have been -- when I explained who it was, a small
11 fellow and they lived in the [address redacted] and he
12 used to work for A-2-B Taxis.
13 Q. When did you find all that out?
14 A. A few months ago.
15 Q. A few months ago?
16 A. When I heard about this -- there was something about
17 this Inquiry started, and I don't know how long that is
18 ago now.
19 THE CHAIRMAN: Two months ago you said?
20 A. A few months ago.
21 THE CHAIRMAN: Two or a few?
22 A. A few.
23 THE CHAIRMAN: Sorry. My fault.
24 MR McKILLOP: Up until a few months ago, you didn't know the
25 identity of your passengers?
99
1 A. No.
2 Q. You say in your statement, paragraph 8:
3 "I'm not sure that I even knew him that night when
4 I picked him up and I do not remember if I recognised
5 him ..."
6 That's all correct, is it?
7 A. Yes.
8 Q. "... but I got his phone number from A-2-B. I had asked
9 another driver who worked at that time if he knew who
10 this man was, but he wasn't sure."
11 A. Yes.
12 Q. Are you really sure you know the identity of your
13 passengers now?
14 A. Yes. I rang -- when I got this man's number, I rang him
15 and he said, yes, I was the one that lifted him. I rang
16 to find where I lifted him. I didn't remember that.
17 I didn't remember where I lifted him.
18 Q. You couldn't even remember that, where you had picked
19 him up. Isn't that right?
20 A. That's right, yes.
21 Q. You were relying on your passengers, or who are assumed
22 to be your passengers, about where they were picked up.
23 Isn't that correct?
24 A. Yes.
25 Q. Do you recall, Mr Byrne, what time this was at, what
100
1 time did you pick them up at?
2 A. No, I don't.
3 Q. Could I refer you to paragraph 5, the top of
4 page [81814]? The second line down:
5 "I do not remember the exact time of this, but it
6 was late, maybe after midnight ..."
7 A. Yes.
8 Q. Is that still your recollection?
9 A. Yes.
10 Q. That it was about midnight?
11 THE CHAIRMAN: No, "maybe after midnight".
12 A. "Maybe after midnight". It could have been 2 o'clock in
13 the morning.
14 MR McKILLOP: That's a long time after midnight.
15 A. Yes, but that's what I remember.
16 Q. Insofar as what you say in paragraph number 7, Mr Byrne,
17 when you took them home, the man wanted to go back up
18 town.
19 A. Yes.
20 Q. I want to put to you that's completely incorrect.
21 A. No.
22 MR McKILLOP: Thank you.
23 MR UNDERWOOD: Nothing arising. Thank you.
24 THE CHAIRMAN: Thank you. Thank you very much. You are
25 free now to go.
101
1 A. Thank you.
2 MR UNDERWOOD: Thank you for coming.
3 (The witness withdrew)
4 MR UNDERWOOD: We have about ten minutes of technological
5 changes to undergo.
6 THE CHAIRMAN: We will break off now until 1.55.
7 (12.45 pm)
8 (The luncheon adjournment)
9 (1.55 pm)
10 MR UNDERWOOD: I think I grasped every element of your
11 decision on anonymity this morning, sir, except what we
12 are now calling these people. Can I call the lady whom
13 we anonymised?
14 SIR JOHN EVANS: P132 and P133.
15 MR UNDERWOOD: It is certainly one of those, sir. I think
16 it is P132.
17 WITNESS P132 (sworn)
18 Questions from MR UNDERWOOD
19 MR UNDERWOOD: Good afternoon.
20 A. How are you doing?
21 Q. My name is Underwood and I am Counsel to the Inquiry.
22 I have a few questions for you and then it may be some
23 others will have some after that.
24 Can I get you to look on the screen at page [81939]?
25 Just keep your eyes on it as we scroll through it
102
1 quickly. Is that your witness statement?
2 A. Yes.
3 Q. Are the contents of it true?
4 A. Yes.
5 Q. Can we look at paragraph 14 on that page?
6 A. Yes.
7 Q. You say:
8 "I am aware that Mr Byrne said that it was my wife
9 who fell and cut her knees, not me. It was definitely
10 me who fell, because I had a pair of cream Levis. I am
11 also aware that he said that I wanted to go back up to
12 find out who was chasing me but that my wife would not
13 let me. That is nonsense. I do not know where he is
14 getting that from. I was concentrating on getting my
15 wife home. I did not know that my sisters and my cousin
16 were in the fight, so I had no reason to go back. The
17 first I heard of the fight was when E rang me to say
18 that they were in hospital."
19 Now, do you know Mr Byrne?
20 A. Vaguely.
21 Q. Did you know him back then?
22 A. Yes, vaguely.
23 Q. Did you sometimes work out of the same taxi office?
24 A. Yes.
25 Q. Were you enemies?
103
1 A. No.
2 Q. Had you any reason to think that he would want to do you
3 harm?
4 A. No.
5 Q. Can you offer us any explanation why he would tell us
6 what it is you are denying here?
7 A. No.
8 Q. He gave evidence this morning and he said that, when you
9 got out of the taxi and you and your wife were having
10 a discussion about whether you were going to go back
11 down there and face people, he wouldn't have taken you
12 anyway, because what you had said about what was going
13 on in town made him not want to go back into town.
14 Now, what do you say about that?
15 A. He must have been mistaken. It could have been any of
16 a number of people. It wasn't me.
17 Q. He also told us that before he had picked you and your
18 wife up, he had picked up other people from
19 St Patrick's --
20 A. Yes.
21 Q. -- and that at that point there were more people than
22 there were taxis.
23 A. Yes.
24 Q. It must follow people were beginning to walk. So what
25 he is telling us is that you were not at all any of the
104
1 first people out of the St Patrick's Hall that night.
2 What do you say about that?
3 A. I can't be sure.
4 Q. Let me put this proposition to you that comes out of his
5 evidence, and that is: you came out of the
6 St Patrick's Hall, you couldn't get a taxi.
7 A. Yes.
8 Q. A lot of people went on in front of you.
9 A. I'm not sure.
10 Q. Do you remember seeing anybody else walking up
11 Thomas Street?
12 A. No.
13 Q. Do you remember seeing other people waiting for taxis.
14 Outside St Patrick's Hall?
15 A. Yes.
16 Q. So it's probable, isn't it, that other people would have
17 walked up as well?
18 A. Possibly. I can't be sure.
19 Q. Do you recall what time it was you left St Pat's?
20 A. No.
21 Q. When E rang you up --
22 A. Yes.
23 Q. -- you know who we mean by E --
24 A. Yes.
25 Q. -- and told you that Robert was in hospital, what did
105
1 she say?
2 A. That they were at the hospital. There was trouble up
3 the town.
4 Q. What sort of trouble -- how did she describe it?
5 A. There was trouble up the town. That's what -- and that
6 they were in hospital.
7 Q. And you went up to hospital as a result, didn't you?
8 A. Yes.
9 Q. So does it follow that she said it was serious?
10 A. She didn't -- I don't think she said -- she said there
11 was trouble. I don't know the severity of what was
12 going on.
13 Q. That's my fault. Sorry. Did she say that Robert was
14 serious?
15 A. She's not a doctor. She couldn't say.
16 Q. What time of the morning was this?
17 A. I couldn't be sure. I said maybe 3.00 or 4.00. You
18 know, I couldn't be sure.
19 Q. To make you leave home at 3.00 or 4.00 in the morning to
20 go to the hospital, would it be fair to conclude she
21 made you worried about Robert's condition?
22 A. Not about Robert. I was concerned about my two younger
23 sisters.
24 Q. Right. Why were you concerned about them?
25 A. Because they were there. They said there was trouble in
106
1 the town.
2 Q. But she didn't tell you there was trouble in hospital,
3 did she?
4 A. I didn't know there was trouble in hospital.
5 Q. Sorry. I am just trying to get this clear. The first
6 you know of a fight or trouble --
7 A. Yes.
8 Q. -- is your sister, or sisters, telling you they are in
9 hospital at 3 or 4 o'clock in the morning --
10 A. Yes.
11 Q. -- with Robert. Yes?
12 A. Yes.
13 Q. You go to the hospital because you are worried about
14 your sisters. Is that right?
15 A. Yes.
16 Q. You are worried about your sisters because they told you
17 there had been trouble in town?
18 A. Yes.
19 Q. They didn't tell you they were injured, did they?
20 A. No, but they were in hospital, so there had to be
21 a reason.
22 Q. Are you saying they didn't tell you the reason they were
23 in hospital was because of Robert?
24 A. I don't know. I can't remember.
25 Q. A pretty memorable night, though, wasn't it?
107
1 A. If you say so.
2 Q. It is the night that Robert got the injuries that killed
3 him. That's memorable, surely?
4 A. Yes.
5 Q. Do you remember being there when all this trouble was
6 going on?
7 A. I wasn't there when the trouble was going on.
8 Q. You can't explain why the taxi driver puts you there?
9 A. It could have been somebody else.
10 Q. If you had been there, would you have told the police
11 about it?
12 A. Yes.
13 MR UNDERWOOD: Very well. Thank you very much.
14 MR WOLFE: No questions.
15 Questions from MR O'HARE
16 MR O'HARE: Of course, if the taxi driver is right,
17 Witness P132 --
18 A. Who am I speaking to?
19 Q. Sorry. My name is O'Hare. I represent various police
20 officers in this Inquiry.
21 A. Okay.
22 Q. If the taxi driver is right that you wanted to go back
23 to the town after safely seeing your wife home, one
24 possible reason for that could be that you saw more of
25 what went on on the night in question. Isn't that
108
1 correct?
2 A. No, I never seen nothing.
3 Q. You knew your sisters were coming behind you.
4 A. I didn't know my sisters were coming behind me.
5 Q. You knew your sisters -- you had heard the shouting.
6 Isn't that correct?
7 A. I didn't know my sisters were coming behind me. They
8 could have got a taxi home, for all I know.
9 Q. Well, tell us this: why do you not get on with the
10 Hamills?
11 A. Pardon?
12 Q. Why do you not get on with Martin Hamill?
13 A. Because he tortured my sisters.
14 Q. What do you mean he tortured your sisters?
15 A. Well, he accused them of not doing enough.
16 Q. Not doing enough in what respect?
17 A. The night of -- they should have been killed, more or
18 less, than Robert.
19 Q. They should have been?
20 A. Saying Robert was killed, that they didn't do enough to
21 protect him.
22 Q. Did you say, "They should have been killed more than
23 Robert"?
24 A. No, it was a slip of the tongue.
25 Q. A slip of the tongue. You can't think of any reason why
109
1 Mr Byrne, the taxi driver, would make this up about you
2 wanting to go back?
3 A. He is mistaken. It definitely wasn't me.
4 MR O'HARE: Yes. Thank you.
5 MR McGRORY: No questions.
6 MS DINSMORE: I have no questions.
7 MR McCOMB: I have no questions.
8 THE CHAIRMAN: Yes, Mr McKillop?
9 Questions from MR McKILLOP
10 MR McKILLOP: P132, when you left the hall that night and
11 couldn't get a taxi home, what was the main thing in
12 your mind at that time?
13 A. To get home safely.
14 Q. Apart from being in the company of your wife, do you
15 remember being in the company of your wife or seeing
16 anybody else at that time?
17 A. No.
18 Q. Is it correct you made your way down Thomas Street down
19 to the town centre across High Street, Market Street
20 into Woodhouse Street?
21 A. Yes.
22 Q. Do you recall seeing anything at all on that journey?
23 A. No. We got across the street and it was quiet.
24 Q. How would you describe your frame of mind as you made
25 that journey?
110
1 A. Apprehensive, because of the area we were in.
2 Q. Can you describe do you recall the pace at which you
3 proceeded along that journey?
4 A. Well, I was walking almost in a power walk sort of
5 situation, you know, when you get to the junction.
6 Q. Yes. Do you recall -- how was your wife feeling as you
7 made that journey?
8 A. She was very panicky and nervous.
9 THE CHAIRMAN: What sort of time was this?
10 A. Could have been 1.30, 2.00. I am not 100% sure. After
11 the social club was finished.
12 MR McKILLOP: On that point, there was a band playing in the
13 hall that night. Is that right?
14 A. Yes.
15 Q. Did you remain in the hall until the band had stopped
16 playing?
17 A. Yes.
18 Q. Mr Byrne, the taxi driver, did you know him at that time
19 in 1997?
20 A. No, not really, no.
21 Q. He worked for A-2-B Taxis at that time. Isn't that
22 right?
23 A. That's correct, yes.
24 Q. Are you satisfied it was one of those taxis that brought
25 you home that night?
111
1 A. It was an A-2-B taxi, yes.
2 Q. Do you recall who the driver was that night?
3 A. I couldn't be 100%. It could have been anybody.
4 I couldn't be 100% sure.
5 Q. The connection and the way you knew Mr Byrne at that
6 time was because of the taxi driving, was it?
7 A. Yes.
8 Q. Do you recall ever speaking to him in around 1997?
9 A. No.
10 Q. Now, you received a telephone call from him earlier on
11 this year. Isn't that correct?
12 A. That's correct, yes.
13 Q. Just tell us about the circumstances of that. Where
14 were you? Where did you receive that call?
15 A. I was in my home in the house and I got a phone call
16 January/February time that says, "This is Tony Byrne".
17 He says, "I seen something on the news about the
18 Robert Hamill Inquiry and I'm ringing up to say I'm
19 going to mention your name".
20 Q. How did you react to that?
21 A. I just more or less says, "Work away, because I've
22 nothing to hide. I have done nothing wrong".
23 Q. Now, just in relation to these particular allegations,
24 were you and your wife chased that night?
25 A. Definitely not.
112
1 Q. Did one of you fall?
2 A. I did.
3 Q. In particular, in relation to when you were brought home
4 and you were getting out of your taxi, did you ask
5 Mr Byrne to take you back up to the town?
6 A. Definitely not.
7 Q. When did you first become aware that there had been
8 trouble that night and that Robert Hamill had been
9 injured?
10 A. When he rang me at home.
11 MR McKILLOP: Yes. Thank you.
12 THE CHAIRMAN: Was there anyone about when you went across
13 the junction?
14 A. No, no-one.
15 THE CHAIRMAN: It was all quiet?
16 A. Yes.
17 THE CHAIRMAN: That's funny, because we have been told that
18 things did not clear away until after 3 o'clock in the
19 morning, but you saw none of it.
20 A. We would have been the first sort of people across the
21 street.
22 THE CHAIRMAN: Before any trouble began?
23 A. Yes.
24 THE CHAIRMAN: I see. Yes. Thank you.
25 MR UNDERWOOD: No further questions. Thank you. Thank you
113
1 very much.
2 A. Thank you.
3 (The witness withdrew)
4 MR UNDERWOOD: Can we have P133, please?
5 WITNESS P133 (sworn)
6 Questions from MR UNDERWOOD
7 MR UNDERWOOD: Good afternoon.
8 A. Hello.
9 Q. My name is Underwood and I am Counsel to the Inquiry.
10 I have got a few questions for you. It may be that,
11 after that, a few other questions will come up. All
12 right?
13 A. Okay.
14 Q. Can we have a look on screen at page [81934], please?
15 This is a statement that runs to about five pages. If
16 you wouldn't mind keeping your eyes on it while we just
17 scroll through it quickly. Is that your witness
18 statement?
19 A. Yes.
20 Q. Is it true?
21 A. Yes.
22 Q. Thank you. If we can go back to the first page,
23 [81934], you tell us at paragraph 4 that:
24 "At the end of the night we could not get a taxi and
25 I remember that I was really afraid of walking down the
114
1 town because of the trouble there. We would avoid
2 walking home if at all possible. At that time,
3 a Catholic could not walk down through the town. But
4 there were no taxis and so we had no choice but to walk
5 home. I remember my husband saying, 'You'll be all
6 right. Just run for it'."
7 Now, you know that Mr Byrne has given a statement
8 and he has now given evidence about picking you up
9 a little later.
10 A. Uh-huh.
11 Q. One of the things he told us this morning was that,
12 before picking you up from Woodhouse Street, he had been
13 down to Thomas Street and had been picking people up
14 from St Patrick's, and that, at the point where he was
15 there, there was already too much demand for taxis and
16 people were milling around. It might well follow from
17 that that, by that stage, so quite a long time before
18 you got to Woodhouse Street, people were already walking
19 up from St Patrick's Hall.
20 Now, did you see anybody else walking up
21 Thomas Street when you did?
22 A. No, not that I -- not that I can remember. I don't
23 remember seeing anyone else.
24 Q. So you were taking the chance, were you, you and your
25 husband, of being the only two Catholics walking up
115
1 Thomas Street and crossing the junction. Is that it?
2 A. Well, yes.
3 Q. Are you sure that's your memory of it?
4 A. Well, I don't remember seeing anyone else about. There
5 could have been. I don't remember.
6 Q. Because if you were very worried about it, surely the
7 thing that's going to have given you some comfort is
8 that other people would have been walking up?
9 A. But I didn't want to go down. I did not want to go down
10 that town that night, but I knew I had no other way of
11 getting home.
12 Q. So the position is this, is it, that St Pat's is turning
13 out, people can't get taxis. There is a whole load of
14 people milling about, but you are the only people who
15 are brave enough to walk through the town?
16 A. I don't know if there was anyone else there or not, but
17 I don't remember.
18 Q. Do you remember other people standing around?
19 A. Where?
20 Q. Outside St Pat's?
21 A. I honestly can't remember. I don't know who was about.
22 Q. It was a significant night, wasn't it, in the event?
23 A. Yes.
24 Q. Are you saying you can't remember whether, when you left
25 St Patrick's Hall, other people were leaving.
116
1 A. I don't remember.
2 Q. Did you stay until the music stopped?
3 A. I assume so. I assume so. But, again, I don't know for
4 sure if we did or not.
5 Q. Let's look at page [81936], if we can. In paragraph 10
6 you deal with what you have been told about Mr Byrne's
7 statement. In the third sentence you say:
8 "P132", which is what we are calling your husband at
9 the moment, "tripped when we were running down
10 Woodhouse Street. He fell and ripped his trousers, but
11 it was only a wee cut."
12 Why were you running down Woodhouse Street?
13 A. We ran across the road from Jamesons Bar to get across
14 because Jamesons Bar was notorious at that time where
15 Loyalists would have -- that's where you would have
16 found trouble, or, if there was going to be an attack,
17 that's where you would have been attacked. So we ran
18 across the road into Woodhouse Street.
19 Q. So it is wrong, is it, when it says you were running
20 down Woodhouse Street? You were running across the
21 junction, were you?
22 A. We were running across the junction, yes, into
23 Woodhouse Street.
24 Q. Proper running?
25 A. Well, I would have said just to get past. Like, we
117
1 weren't -- I don't know. I suppose we were running,
2 yes.
3 Q. If you look at the final sentence, you say:
4 "I reckon that we started to run just before the
5 Queen's Bar and ran across the main road into the
6 Woodhouse Street probably until we got to the
7 Royal Oak."
8 The Royal Oak is way up Woodhouse Street, isn't it?
9 A. Yes.
10 Q. Why were you running all the way up to the Royal Oak?
11 A. I don't know whether we did go to the Royal Oak or not.
12 It could have been anywhere in Woodhouse Street.
13 Q. Why have you told us this then in your statement?
14 A. I am just saying probably until we got to the Royal Oak.
15 I am not saying we definitely stopped at the Royal Oak.
16 Q. Could it be you were running all the way up to the
17 Royal Oak because there was a riot going on?
18 A. No, definitely no. Definitely not, no.
19 Q. So you were the only people out of St Pat's to brave
20 this walk. That's it, is it?
21 A. Well, as far as I know there was only me and my husband
22 there. I don't know if there was anybody else about.
23 I can't remember.
24 Q. You were so worried that you ran across --
25 A. Yes.
118
1 Q. -- past a Land Rover?
2 A. Yes.
3 Q. Did the Land Rover give you any comfort?
4 A. That's the reason why I went, was because the Land Rover
5 was there.
6 Q. Why run if the Land Rover is there?
7 A. Because I had to get past the Queen's Bar.
8 Q. Why continue running once you are past the Land Rover?
9 There is a Land Rover full of police officers between
10 you and St Patrick's --
11 A. I don't know where we stopped in Woodhouse Street. I am
12 just saying probably at the Oak, but I am not sure for
13 definite.
14 Q. Do you know Mr Byrne?
15 A. No.
16 Q. Have you any reason to believe that he would make up
17 things about you?
18 A. No.
19 Q. Can we go on to paragraph 12, [81936]? You say:
20 "The first time I heard that D and Robert Hamill had
21 been assaulted was when [my husband] got a phone call
22 from one of his sisters, I think it might have been E,
23 crying and saying that she was at the hospital and they
24 had been attacked."
25 I want to get this clear. In that telephone call
119
1 from one of the sisters that sister told your husband
2 that Robert Hamill and D had been attacked. Is that it?
3 A. Sorry. Could you repeat that?
4 Q. Does this sentence tell us that the telephone call from
5 the sister told your husband that D and Robert Hamill
6 had been assaulted?
7 A. I don't know what she told him.
8 Q. It is your witness statement. You told us it is true.
9 Tell us what you mean by this.
10 A. It must have been that they were attacked. They had
11 been attacked.
12 Q. That's why your husband went to the hospital, is it?
13 A. Yes.
14 Q. Because Robert Hamill was lying in hospital injured?
15 A. And probably because his sisters were there as well.
16 Q. Did you think that his sisters were injured?
17 A. I didn't know at that stage who was injured.
18 Q. If we go to paragraph 13, you say:
19 "I do not remember seeing E, F, D or Robert Hamill
20 that night at all and I do not remember seeing them
21 leave St Patrick's Hall. Honestly, I am glad that we
22 did not see anything because, as [my husband] and I have
23 often said, he would have got involved. It was two of
24 his sisters, his cousin and his brother-in-law; he would
25 not have stood back and let anything happen to his
120
1 sisters."
2 [81937].
3 So if he had known that his sisters were on the
4 street behind and that there was trouble going on, he is
5 the sort of person who would want to go back and sort it
6 out, isn't he?
7 A. He wouldn't have left in the first place.
8 Q. Is he the sort of person who would want to go back in
9 those circumstances?
10 A. I don't know if he would have went back.
11 Q. What do you mean by this:
12 "He is the sort of person he would have got
13 involved. It was two of his sisters, his cousin and his
14 brother-in-law. He wouldn't have stood back and let
15 anything happen to his sisters."
16 A. I mean, if he had seen what was going on there, he
17 wouldn't have left them. He would've went over to help
18 them.
19 Q. Are you sure you didn't see all the trouble?
20 A. I'm positive.
21 Q. Is this the situation: that you saw the trouble and you
22 dragged your husband away from it?
23 A. Definitely not, no, definitely not.
24 MR UNDERWOOD: Very well. Thank you.
25 REV. BARONESS KATHLEEN RICHARDSON: Can I just ask you:
121
1 where was the Land Rover when you walked across the
2 junction? Do you remember where the Land Rover was?
3 A. I am not 100% sure but I know there was a Land Rover
4 between around Halifax between the Alliance & Leicester
5 and the Halifax. It could have been in the middle of
6 the road. I am not 100% sure.
7 MR O'HARE: I have no questions.
8 MR McGRORY: I have no questions.
9 Questions from MR McCOMB
10 MR McCOMB: I have just a couple of small things, P133. My
11 name is McComb. I represent a number of people who were
12 charged with the attack on Robert.
13 We have just today got a freshly typed version of
14 your statement. Did you make some small corrections to
15 that? Do you remember doing that?
16 A. Yes.
17 Q. If we go to [81817], paragraph 6, if we could have that,
18 please, just at the very start of that paragraph, P133,
19 you said -- this is your earlier statement to the
20 Inquiry:
21 "When we got to the Market Street/High Street
22 junction, I saw a police Land Rover."
23 You have corrected that now to say:
24 "As we walked down Thomas Street ..."
25 It is the same paragraph. It is paragraph 6 of the
122
1 hard copy we were given today:
2 "As we walked down Thomas Street towards the
3 Market Street/High Street junction ..."
4 So which do you remember when you saw the
5 Land Rover? Were you walking down Thomas Street or were
6 you actually at the junction?
7 A. We were walking down Thomas Street.
8 Q. You weren't running at that stage?
9 A. No, because I was still unsure whether to go or not and
10 it was only when we seen the Land Rover we decided to
11 go.
12 Q. Now, I am sure you have talked about this with your
13 husband a few times perhaps before coming here just to
14 try to recollect whatever you can recollect. Have you?
15 A. Yes.
16 Q. He, just shortly before you came, gave evidence to the
17 effect that, when the two of you left -- I take it you
18 left St Patrick's Hall together.
19 A. Yes.
20 Q. That when you left, there was a large crowd of people
21 outside St Patrick's waiting for taxis.
22 A. There must have been.
23 Q. You said already you don't remember, but you wouldn't
24 disagree with that as a proposition?
25 A. No.
123
1 Q. Indeed, it is something which Mr Byrne said earlier on
2 this morning.
3 There is just again -- can we go to paragraph 12,
4 please, page [81818]? Highlight that. Can I take you
5 just to the very bottom of that paragraph? You say:
6 "E and F", and you know who E and F are. We don't
7 need to know their names. They are the two sisters.
8 A. Yes.
9 Q. "... have spoken to us about what happened that night
10 since then."
11 Were you aware that there had been a falling out
12 between various members of the family or their cousins
13 and sisters and so on?
14 A. Yes, yes. Now I am, yes.
15 Q. When you say now you are aware ...
16 A. Well, it didn't happen right away.
17 Q. Yes. Now, your husband has given an explanation about
18 that, but can you say what the basis, the cause of the
19 falling out was?
20 A. No, I have no idea what it was about.
21 Q. Have you ever fallen out with E and F?
22 A. No.
23 Q. Indeed, you say:
24 "E and F have spoken to us about what happened that
25 night since then."
124
1 Can you perhaps elaborate on that and tell us what
2 circumstances and when you were talking?
3 A. No. It is just in general. The talk probably was just
4 in general about afterwards, what had happened or
5 whatever. I can't even remember what they had said, you
6 know. There was just general talk.
7 Q. Were they telling you what they had seen happen, or were
8 you telling them what you had seen happen, or what was
9 it?
10 A. I don't know. I can't remember. It's just one of those
11 things you talk about, but I don't know exactly what was
12 said.
13 Q. Were you trying to relive or to go back over what might
14 have happened, how quickly the attack happened or
15 anything like that, who was there or anything of that
16 sort?
17 A. When? Afterwards?
18 Q. Yes, when you were talking to E and F?
19 A. I have no idea. I have no idea.
20 MR McCOMB: Thank you very much.
21 MS DINSMORE: No questions, sir.
22 Questions from MR McKILLOP
23 MR McKILLOP: Just very briefly, there has been
24 an allegation by Mr Byrne that you were being chased
25 that night. Is that correct?
125
1 A. No, it is not correct.
2 Q. Did you fall?
3 A. No, I didn't fall.
4 Q. There is also an allegation that when Mr Byrne took you
5 and your husband back to your home, that your husband
6 wanted to go back into the town. What do you say to
7 that?
8 A. That's definitely not correct. That did not -- I don't
9 know where he's getting that from, but that's not
10 correct at all.
11 MR McKILLOP: Thank you.
12 MR UNDERWOOD: I have nothing arising out of that.
13 THE CHAIRMAN: Thank you very much, Madam. You are free now
14 to go.
15 A. Right. Thank you.
16 (The witness withdrew)
17 MR UNDERWOOD: Our next witness is going to be
18 Colville Stewart. I gather we need about a minute for
19 our technology changeover. I am not going to invite to
20 you rise unless you ...
21 THE CHAIRMAN: No, we will stay, I think.
22 MR UNDERWOOD: At least, not all of you to rise.
23 THE CHAIRMAN: I wonder whether we might have been helped by
24 an assessment from the first witness.
25 MR UNDERWOOD: Yes, quite.
126
1 THE CHAIRMAN: I suspect, Mr Underwood, that this witness is
2 not going to take all that long. Are we going to be
3 able to return to the McBurney tapes?
4 MR UNDERWOOD: Yes. It is more than likely.
5 SIR JOHN EVANS: The technology is okay?
6 MR UNDERWOOD: I seem to be getting nods.
7 SIR JOHN EVANS: Yes, good.
8 MR UNDERWOOD: Almost. May I call Colville Stewart?
9 MR COLVILLE STEWART (sworn)
10 Questions from MR UNDERWOOD
11 MR UNDERWOOD: Good afternoon, Mr Stewart.
12 A. Good afternoon.
13 Q. My name is Underwood and I am Counsel to the Inquiry.
14 A few questions for you and it may well be there will be
15 some supplemental questions from others. May I ask your
16 full names, please?
17 A. Maurice Colville Stewart.
18 Q. We have a witness statement for you which I can call up
19 on screen at page [81895]. It is six pages long.
20 I just want to confirm that we are talking about the
21 same document.
22 Can I ask you to keep your eye on the screen while
23 we flick through the six pages? Is that your witness
24 statement?
25 A. Yes, it is.
127
1 Q. Are the contents true?
2 A. Yes, they are.
3 Q. Thank you. Can I pick up page [81896]? In paragraphs 9
4 and 10 you tell us:
5 "As part of my familiarisation of the
6 investigation", when you became involved in the murder
7 investigation, "I was aware of the policy files being
8 used by DCI K."
9 Actually, after investigation, what you discerned
10 was there had been a policy file run between 9th and
11 30th May and then a gap until 26th June, when DCI K
12 resumed.
13 A. Yes.
14 Q. Then you go on to say in paragraph 10:
15 "The use of policy files and sensitive policy files
16 was standard procedure in the RUC in 1997."
17 Now, the Inquiry, of course, has to consider whether
18 there was due diligence on the part of investigators
19 during the period when policy files weren't running, and
20 one of the things the Panel need to satisfy themselves
21 about was whether the standard procedure was one thing,
22 but it was legitimate not to follow it, if you see what
23 I mean. So what I want to investigate with you, if
24 I may, is just how standard that standard procedure was.
25 Was it, in fact, obligatory, as far as SIOs were
128
1 concerned, to run a policy file in a murder?
2 A. Yes, I believe it was, yes.
3 Q. Can you conceive of any excuse not to run one?
4 A. Can I conceive of any excuse? No, I don't think so.
5 I think it would be normal practice at that stage.
6 Q. Thank you. Going over to [81897], at paragraph 14 you
7 refer to a report of yours of 29th January 2001.
8 Just for the sake of completeness, can I get you to
9 have a look at a document to identify whether that is
10 the report you are referring to? That's at
11 page [03107]. This is the HOLMES version of it. It
12 runs to three pages. Perhaps we could just very briefly
13 flick through the three. Is that the report you are
14 referring to there?
15 A. Can we just go a bit slower, please? I didn't really
16 see it.
17 Q. Yes, of course. Go to [03107]. Tell us when you want
18 to move on?
19 A. Next page, please.
20 Q. [03108], then?
21 A. Yes, please. Yes. I have read that.
22 Q. Finally, [03109]. If we go back to [81897], at
23 paragraph 14 is the reference to the report of
24 29th January 2001, the document we have just looked at
25 in HOLMES version?
129
1 A. Yes, it is.
2 Q. Thank you very much. Going over to [81898],
3 paragraph 18, you tell us that:
4 "Part of the strategy agreed with the Ombudsman was
5 the use of intrusive surveillance. I could see
6 difficulties with this deployment, particularly with
7 respect to Robert Atkinson who was already aware that we
8 were interviewing police officers as part of our
9 investigation. I was concerned that he would also be
10 aware of the installation of any technical equipment and
11 would suspect that we would try and use that sort of
12 deployment."
13 I want to ask you, in the light of that, to look at
14 page [71948], please. This is part of a record kept by
15 Mr Mahaffey. If we look in the entry for 16th February
16 and pick up the second half of that from,"Whilst certain
17 elements", onwards.
18 It reads:
19 "Whilst certain elements of the available evidence
20 (when taken in isolation) is circumstantial, it is
21 contended by DCS", this is you, "that significant weight
22 to the prosecution would be achieved if either or both
23 Andrea McKee and Tracey Clarke were to give evidence on
24 behalf of the Crown. These are matters which [you]
25 propose to discuss at length with the DPP."
130
1 Then, if we scroll down, please, you say:
2 "DCS", that's you, "expressed concern about the
3 feasibility", over the page, please, [71949], "of
4 deploying covert recording equipment in the home of
5 Reserve Constable Atkinson.
6 "Intelligence sources indicate that he believes he
7 is the subject of 24-hour surveillance, including the
8 interception of his telephone.
9 "He spends most of each day within the family home.
10 Reserve Constable Atkinson is currently placed sick with
11 an injury on duty. He believes that he is being watched
12 to establish whether he is undertaking any other
13 employment.
14 "Reserve Constable Atkinson is believed to be
15 proficient when dealing with electronics and computers.
16 This may indicate some knowledge of technical
17 surveillance capability.
18 "It is believed that when his home is searched,
19 Reserve Constable Atkinson will take whatever measures
7 20 he can to monitor exactly what is going on and who is
21 present in his home at that time.
22 "The presence of Reserve Constable Atkinson's two
23 teenage children may also present a problem with the
24 installation of technical equipment."
25 Now, going back to your reservations that you have
131
1 expressed in the witness statement, how clear were you
2 at the time in 2000 that we are talking of here that
3 this attempt at surveillance was going to come undone?
4 A. I was very clear. I was unhappy to do surveillance in
5 this way. I made it quite clear to the Ombudsman in the
6 form of both Chris Mahaffey and Mr Wood that I would
7 have preferred if we could have done that surveillance
8 covertly in the sense that we would have done it prior
9 to arrest and that way, hopefully, they wouldn't have
10 been aware that, in fact, we were listening to their
11 conversations.
12 Q. Then going back to your witness statement at [81898], no
13 need to highlight it, but if we pick up it at the last
14 two lines:
15 "Robert Atkinson was suspended from duty upon being
16 arrested. I cannot speak for Maynard McBurney, but my
17 view was that Mr Atkinson should have been", going over,
18 [81899], "suspended in May 1997 when the evidence first
19 came available from Tracey Clarke. I realise in doing
20 so it would have put him on notice, and those around
21 him, and I suspect the reason he was not arrested in
22 1997 was the fear that witnesses would not come to
23 court."
24 I want to see if we can find, if possible, some sort
25 of rationale for what Mr McBurney was doing back then
132
1 and put this proposition to you.
2 He had got a witness statement from Tracey Clarke,
3 which, on the one hand, gave evidence, as it were,
4 against the five murderers that she named in there, to
5 put it that high, and in the same witness statement she
6 also passes on this allegation against Atkinson.
7 If Atkinson had been suspended and served with
8 a Form 17(3) and interviewed about that allegation,
9 would a reasonable SIO have thought that would have been
10 likely to prejudice Tracey Clarke's chances of giving
11 evidence in the murder?
12 A. Obviously I can't speak for what Mr McBurney may or may
13 not have been thinking -- and I have thought quite a bit
14 about this. Unfortunately, my statement of evidence
15 maybe is not as clear as it should have been, and
16 I think, you know, in hindsight, having looked at it,
17 I probably should have said that I would have reported
18 Atkinson to the deputy chief constable, because
19 I certainly couldn't have suspended him myself. So it
20 would have been a report that would have went in.
21 I think that is a report that I would have compiled
22 probably after we knew that the phone call had been made
23 from the Atkinson home, because that then tended to
24 support the allegation by Tracey Clarke. So at that
25 stage, I feel that, yes, I would have reported the
133
1 matter.
2 Q. Okay.
3 A. Now --
4 Q. Sorry.
5 A. Sorry, I was just going to say I understand that, in
6 fact, whilst I probably would have done it on paper, so
7 there would have been a paper trail there, I understand
8 that Mr McBurney, in fact, did do that, but he did it
9 verbally.
10 Q. That's fair. Thank you. That deals with the question
11 of consideration of that part of it.
12 Can I just try to get the thinking of somebody who
13 was investigating at a high level in those days?
14 Imagine yourself in the position in May 1997 that you
15 have Tracey Clarke's statement. She is your prime
16 witness in the murder and she gives this hearsay
17 allegation against Atkinson. If you tax Atkinson with
18 that allegation and with the phone records, he is going
19 to be tipped off that Hanvey has been talking to
20 somebody, and it won't take long for that to work its
21 way through to the concept that he has been talking to
22 Tracey and Tracey is your source.
23 If you had been in that position, would you have
24 considered it dodgy, as it were, that it would have put
25 your murder investigation at risk, because that would
134
1 have put at least a prospect of more pressure on
2 Tracey Clarke not to give evidence?
3 A. I think that's a fair assessment, yes.
4 Q. That's kind. Thank you. There is only one other matter
5 I would like to ask you about. It is on this same
6 page at paragraph 24:
7 "The DPP on receipt of a prosecution file decided to
8 prosecute Andrea and Michael McKee. At the behest of
9 Andrea McKee's solicitor I wrote to her on
10 2nd November 2001, putting on record Andrea's support
11 for the police in the investigation.
12 "On 3rd January 2002, I wrote to the presiding judge
13 similarly putting on record Andrea McKee's assistance to
14 the police."
15 Now, we know that the sequence of events was that
16 there was the arrest strategy for 10th April 2001, in
17 which everybody was arrested and interviewed under
18 caution, including Andrea and Michael McKee, as well as
19 the Atkinsons and the Hanveys, but the crime files went
20 up separately. So a crime file went up on Andrea and
21 then on Michael McKee for consideration before a crime
22 file went up on the Atkinsons and the Hanveys. They
23 were then separated into terms of prosecution. So the
24 McKees were prosecuted first and then the Atkinsons and
25 Hanveys.
135
1 Was any consideration given to crime files going on
2 in one bunch, as it were, so that the DPP had all of the
3 allegations before them?
4 A. I don't recall.
5 MR UNDERWOOD: Very well. That's very kind. Thank you very
6 much, Mr Stewart. Those are the only questions. As
7 I say, it may be others have some.
8 MR McGRORY: Sir, I have some questions, with your leave,
9 sir.
10 THE CHAIRMAN: Yes.
11 Questions from MR McGRORY
12 MR McGRORY: My name is McGrory, Mr Stewart, and I represent
13 the family of Robert Hamill.
14 At paragraph 6 of your statement you talk about
15 policy books. Sorry. My apologies. This is my fault.
16 I should have taken down a note. The copy of your
17 statement I am working from does not have the scanned-on
18 numbers. It is [81895]. It is already up. Thank you.
19 THE CHAIRMAN: [81896].
20 MR McGRORY: My apologies, sir. My statement must be
21 a draft. We will be able to deal with this. You will
22 remember anyway at some point in your statement you
23 talked about sensitive policy books.
24 THE CHAIRMAN: Paragraph 9, I think.
25 MR McGRORY: Thank you, sir. I am working from your
136
1 original draft, which is entirely my fault. Thank you.
2 In paragraph 9, I believe you did say that:
3 "Sensitive policy books would be written in the same
4 style but just on a sensitive or secret policy document.
5 This was standard procedure."
6 Do you see that?
7 A. No, that's not what I am seeing, no.
8 SIR JOHN EVANS: Paragraphs 9 and 10.
9 MR McGRORY: Sorry. It is my ...
10 I am grateful to Mr Adair. He has given me his.
11 Paragraph 10. We are talking about policy books in
12 general.
13 A. Yes, I can see that, yes.
14 Q. I just want to ask you about the importance of them and
15 the sort of information that a senior investigator would
16 be expected to put in a policy book.
17 Let's start, first of all, with the value of
18 a policy book generally before we get to sensitive
19 policy books.
20 Would you agree with that in terms of monitoring
21 an investigation and keeping track of the direction of
22 it, it has some considerable importance?
23 A. Yes, it has.
24 Q. In terms of the assistance it gives an investigator in
25 processing their thoughts and in following through with
137
1 their thoughts as to where they might be going with the
2 investigation, it also has a value?
3 A. I think it's not only of value to the investigator at
4 that time, it is also of extreme value to those that may
5 follow on after him, or her, as the case may be.
6 Q. Yes. The reason why sensitive policy books would have
7 been in existence would be there might be information,
8 if put in the ordinary policy book, which could
9 potentially compromise the investigation, because more
10 people than one might have, like, had access to the
11 ordinary policy book?
12 A. That's a possibility.
13 Q. So if there was something particularly sensitive and
14 there might be a risk, for one reason or another, that
15 the information might leak out and compromise the
16 investigation, one simply had the device of a sensitive
17 policy book to which very few people had access?
18 A. Yes, that's a fair comment.
19 Q. But otherwise, of course, the sensitive policy book
20 performed a similar function to the policy book, except
21 that it was seen by fewer people?
22 A. That's correct, yes.
23 THE CHAIRMAN: Is there a difference in the way custody is
24 kept of a sensitive policy book from a policy book?
25 A. Only in the sense, sir, that it would be limited to
138
1 a certain number of people, probably the SIO and his
2 deputy or her deputy, as the case may be. They would,
3 if you like, keep a very close watch on the sensitive
4 book, whereas the other one could be open to the office
5 manager, to some of the other detectives involved in the
6 investigation.
7 MR McGRORY: The question that Mr Underwood asked you,
8 Mr Stewart, about one of the possible reasons for not
9 maybe bringing in Reserve Constable Atkinson immediately
10 and confronting him with the allegation about the
11 tip-off might have been because it could have
12 compromised the murder investigation in some way or
13 other if Atkinson were to know that he was a suspect.
14 A. Yes.
15 Q. Is that not one of those policy decisions or directions
16 that one would expect to be recorded in something such
17 as a policy book?
18 A. If I was considering an arrest and decided not to
19 arrest, I personally, yes, would have recorded that.
20 That was a policy decision, yes.
21 Q. You see, it wasn't just any policy decision. Here we
22 have a murder and information coming into the system
23 that one of your very own officers might have assisted
24 one of the murderers. So this raises quite a few very
25 difficult decisions. Do we suspend him? Do we arrest
139
1 him? What further investigations do we need to make?
2 Many questions like that. Difficult decisions to take.
3 Would you agree, first of all, that those are the
4 sorts of decisions that might not be taken alone by one
5 man, but about which there might be some discussion?
6 A. Well, I can only speak what I would have done in the
7 circumstances. I am quite sure I'd have discussed that
8 with my deputy and, indeed, maybe other senior
9 detectives involved in the investigation.
10 Q. Would you have gone above your own rank?
11 A. In order to do what?
12 Q. In order to come to a conclusion as to what you should
13 do now with this information?
14 A. Well, as I have already indicated, I would have given
15 consideration to putting the file to the deputy chief
16 constable in relation to this particular matter we are
17 referring to today. So I have already indicated that
18 I would have referred upwards.
19 Q. Yes, but, indeed, you would also have expected that the
20 outcome of those deliberations in terms of how to go
21 forward would have been recorded?
22 A. Yes, I would have recorded it, yes.
23 Q. Because further down the line those considerations and
24 the steps that might have been taken or not taken would
25 have needed to have been reviewed?
140
1 A. That's a possibility.
2 Q. In other words, if there was a view taken that, "Well,
3 if we make our move against this Reserve Constable now,
4 we might compromise the investigation, but there might
5 be a point a little further down the line where we can
6 make our move", that direction would be mapped out or
7 noted in some way or other?
8 A. I am sorry. You have lost me, Mr McGrory.
9 Q. Say, for example, you said, "Okay. We don't want to
10 bring the Reserve Constable in tomorrow, because we need
11 to get a little more evidence about this. This is only
12 hearsay at the movement. We need a little more. We
13 will review that when we get the telephone records".
14 You would record that?
15 A. Yes, I would, yes.
16 Q. Then, when the telephone records come in, there is
17 a further consideration of, "Now what do we do?"
18 A. That's quite normal procedure, yes.
19 Q. Thank you.
20 Just moving on to another topic, if you don't mind,
21 you mentioned in your statement -- I am not going to get
22 confused about paragraph numbers -- you may recall this,
23 that you recalled that Mr Flanagan -- you had some
24 conversation with Mr Flanagan, the then chief constable,
25 after you were brought in, about the situation and he
141
1 suggested to you to get on with things and he wanted you
2 to look at the big picture?
3 A. Yes, that's true.
4 Q. Do you remember that?
5 A. Yes, I do.
6 Q. Was it Mr Flanagan's style to want to be informed about
7 how things were going in a major investigation like
8 this?
9 A. I think the answer to that is "Yes". I am quite sure,
10 as the chief constable, he felt that he should be kept
11 aware of everything that was necessary.
12 Q. Because I think you said at one point that you would
13 have gone to ACC White sometimes, but he would have
14 said, "Speak to the boss about that"?
15 A. Yes, if he felt it was necessary.
16 Q. Thank you. Certainly there was an open door to him in
17 any event if you needed to speak to him?
18 A. That's right.
19 Q. Sir, if you would allow me one moment.
20 Thank you very much, Mr Stewart.
21 Questions from MS DINSMORE
22 MS DINSMORE: Good afternoon, Mr Stewart. My name is
23 Margaret Ann Dinsmore. I appear on behalf of both
24 Eleanor and Robbie Atkinson.
25 Now, just by way of a general understanding, I have
142
1 absolutely no doubt that you are ad idem with me that,
2 as a learned member of law enforcement and law and order
3 within the province for so many years, that at all times
4 it would have been your approach, and the approach of
5 your teams, to treat everyone with the ultimate dignity
6 and the minimum of humiliation, but notwithstanding
7 serving the task that you take. Would you agree? You
8 would never go out to maximise embarrassment or
9 humiliation for anyone needlessly regardless of what has
10 been alleged against them.
11 Am I right in thinking that about you?
12 A. Yes, you are.
13 Q. Although I have no doubt it is mother's milk now to your
14 good self, but in December of 2000, the Regulation
15 Investigatory Power Act of 2000 was fairly new, in that
16 it did not come into force until 2nd October.
17 Now, can you tell us what was your thinking in
18 relation to the implementation of the provisions and
19 tools which that legislation provided you with?
20 A. Could I ask you to clarify your question, please?
21 Q. I will clarify my question. We know that you had this
22 ability, provided the relevant documentation and
23 authority has been obtained, a very useful tool
24 potentially, sometimes useless, but potentially very
25 useful in relation to surveillance.
143
1 Now, you only had that tool available as a working
2 tool from 2nd October of 2000. I know from the notes
3 that by --
4 THE CHAIRMAN: Is that quite right, or was it that the Act
5 regulated the use of that power?
6 A. I think it was the regulations were clarified at that
7 point, sir.
8 MS DINSMORE: Yes, but you were most, quite properly,
9 cautious to ensure that you met the letter of the law.
10 Now, we know that on 5th December you had a revised
11 strategy in relation to the whole way forward in
12 relation to covert surveillance and in relation to the
13 arrest. Maybe I can help you with that. Perhaps if we
14 could call up page [26878]?
15 A. Well, I don't need to see that, because I didn't have
16 a strategy on 5th December, because I wasn't involved at
17 that stage.
18 Q. You weren't? Can you make any comment then in relation
19 to the strategy that was engaged?
20 A. No, I can't at that stage.
21 Q. You can't. So you were no part of that?
22 A. No.
23 Q. Are you telling us that you were no part of the decision
24 that the operation of putting in situ the covert
25 surveillance on the day of the arrest, that you had no
144
1 part in that thinking?
2 A. Oh, I had, but I didn't come into the investigation
3 until 18th December. You referred to 5th December,
4 I believe.
5 Q. Yes. Right. So when you got a letter to your good
6 self -- which, Mr Chairman, you will find at [14882] --
7 that letter was properly penned to you by the Police
8 Ombudsman, because that must have been your first day in
9 charge of all that. Is that right? Can we have that
10 up, please?
11 A. Yes, I see that.
12 Q. You see at paragraph 3 it says:
13 "Intrusive surveillance strategy, as agreed, should
14 be pursued."
15 Now, are you telling me you were a new boy on the
16 block, and, if so, can you tell me what your
17 understanding in relation to paragraph 3 was when that
18 landed on your desk?
19 A. Well, from my memory -- and I think you need to remember
20 we are going back quite a few years, this was a letter
21 that was penned by Chris Mahaffey. It was coming on the
22 heels of a short meeting I had with him the previous
23 Friday, which would have been 15th December.
24 The strategy I think he refers to there is clearly
25 the one that had already been discussed with my
145
1 predecessor and DCI K.
2 Q. Well, when you got --
3 A. I had not taken issue with that strategy, because I was
4 very much, as you rightly said, the new boy on the
5 block, and this was a learning process for me.
6 Q. Absolutely. Now tell me what steps you took in that
7 learning process to find out exactly what strategy was
8 agreed.
9 A. Well, I discussed it with DCI K.
10 Q. What did he tell you? What did you understand the way
11 forward to be?
12 A. I understood that the Ombudsman wanted us to make
13 arrests, and, at the time of arrest, to use intrusive
14 surveillance techniques, and DCI K indicated to me he
15 was unhappy with that situation. He felt that was not
16 the way to go and that we should be using our
17 surveillance techniques more covertly; in other words,
18 put them in prior to the time of arrest.
19 Q. Just so that we are all clear as to how this covert
20 surveillance came about, are you telling me that if the
21 Police Ombudsman or the ICPC, as they formally were --
22 are you saying, at the end of the day, when it came to
23 operational matters, the decision-making ultimately
24 rested with them?
25 A. Absolutely. I was working to --
146
1 Q. You were working to --
2 A. -- them at that particular time.
3 Q. Did you express anywhere your discontent?
4 A. Yes, I did.
5 Q. How did you then move to a statement of agreement? Was
6 there a compromise so that there was a consensus?
7 I just want to understand the thinking of all of
8 those that were involved in relation to the placing of
9 this covert surveillance.
10 A. Mr Wood, on behalf of the Ombudsman, was quite adamant
11 this was how it should be done, in spite of the advice
12 proffered by myself and my deputy.
13 So, at the end of the day, we had no alternative but
14 to go with this particular strategy.
15 Q. I may be misunderstanding matters, but I want to be
16 absolutely clear.
17 They are saying to you, "You are to do this while
18 you are arresting them or as you arrest them". Did they
19 actually state the timing of this was to be
20 a simultaneous exercise?
21 A. Yes.
22 Q. Was the interviewing of Andrea McKee in Wrexham, or the
23 after-caution interview by your colleague K and P5 or
24 Mr Devlin, who we heard from this morning, was that
25 understood it was all to happen at once?
147
1 A. Yes, that was discussed with the Ombudsman and that was
2 agreed upon.
3 Q. Were you discontent with that?
4 A. With the interviewing of Andrea McKee?
5 Q. Were you discontent with the package?
6 A. I was unhappy about the surveillance side of it, but
7 apart from that, we had agreed we were going to do that.
8 Q. Right. Obviously, to place the covert surveillance
9 mechanics, so to speak -- ladies don't understand much
10 about these, you see, Mr Stewart.
11 A. Apparatus.
12 Q. The apparatus. Obviously, you need to have nobody in
13 the house?
14 A. It is preferable.
15 Q. But your thinking is such that, in fact, (a) it would be
16 preferable to have done it before we arrested him.
17 Isn't that right?
18 A. Yes.
19 Q. (b) as a matter of logic, then, you are telling the
20 Inquiry it is within our powers to comprehend
21 circumstances where covert surveillance can be put in
22 place without it being at the time of an arrest?
23 A. Yes.
24 Q. Right. So the Inquiry knows, therefore, that the
25 placing of covert surveillance, it was not necessary to
148
1 arrest at the same time. Isn't that right?
2 A. No, it is not necessary.
3 Q. Notwithstanding that -- and I appreciate that perhaps in
4 light of your evidence some of these points might fall
5 at a different door -- what, in fact, then happens is
6 that the covert surveillance is placed the morning or
7 the day that Eleanor and Robbie are arrested?
8 A. Yes.
9 Q. Am I correct in thinking that there was entry by way of
10 a lawful search warrant?
11 A. Uh-huh.
12 Q. Yes, and that, in fact, there were substantial manpower
13 resources on the street where the Atkinsons lived that
14 day to achieve that end?
15 A. Adequate, I would say.
16 Q. Adequate. Give us an idea. Would there have been more
17 than one vehicle? Would there have been more than three
18 policemen? Do you know?
19 A. Oh, yes, I think there would have been more than one
20 vehicle and more than three.
21 Q. So, in fact, if police were observing the street where
22 they lived, they would observe a number of police
23 vehicles and a number of policemen there?
24 A. Yes.
25 Q. Of course, they would not know they were going in to do
149
1 covert surveillance. They would go in wearing the hat
2 of the legitimate search warrant. Isn't that right?
3 A. Uh-huh.
4 Q. To the outside world, that's how the street where the
5 Atkinsons lived looked that day. Isn't that right?
6 A. Uh-huh.
7 Q. What we also know is that Mrs Eleanor Atkinson, she
8 arrives at her work in the industrial estate, the
9 Northern Ireland Electricity Consumer Services, she
10 arrives in the public car park, and at 8.39 am that
11 morning in the public car park she is arrested.
12 A. Uh-huh.
13 Q. Isn't it correct also that Mr Atkinson is arrested on
14 the Saintfield Road in Lisburn in a public place that
15 same morning?
16 A. I believe so, yes.
17 Q. Now, we know from your evidence, covert surveillance or
18 no covert surveillance, it would have been quite
19 legitimate to have arrested these people at their home.
20 A. Yes.
21 Q. Why was that not done? Why did they have the public
22 humiliation of a public arrest?
23 A. Well, they were not at their home when we went to it.
24 Q. No, but what I am saying to you is: are you saying, "We
25 would have liked to have done it like that but the
150
1 Police Ombudsman would not let me"?
2 A. No, I am not saying that.
3 Q. Then explain it to me. Was there any necessity
4 whatsoever to arrest Eleanor Atkinson in the car park of
5 her place of work, any whatsoever?
6 A. Because that's where she was when we effected the
7 arrest. That's where we found her. That's where we
8 arrested her.
9 Q. Yes, but, look, you had been talking and writing memos
10 and having meetings and having discussions with
11 Uncle Tom Cobley and all for months and months and
12 months.
13 What I am putting to you is the simple proposition:
14 why did you consider it necessary to arrest her there at
15 that time?
16 A. Well, clearly -- and again, you will have to bear with
17 me, because my memory isn't as clear as it used to be on
18 this matter -- having Eleanor Atkinson and her husband
19 out of the house was going to make the putting in of the
20 equipment a lot easier. So the fact that they had left
21 the house allowed us to arrest them outside their home
22 and we were able to get on with our job with as little
23 interference from them as possible.
24 Q. Yes, but we know as a matter of logic that wasn't
25 necessary, because you have already said to us, "We
151
1 could have got the covert surveillance in. In fact, we
2 wanted to do it like that."
3 THE CHAIRMAN: Mrs Dinsmore, it is quite obvious you cannot
4 put the surveillance equipment in when there is someone
5 in the house. You have to do it when they are away.
6 That's what the witness has said.
7 MS DINSMORE: I fully appreciate that. That's why I --
8 THE CHAIRMAN: That's what the witness is really saying,
9 isn't it?
10 A. Yes.
11 THE CHAIRMAN: There you are.
12 MS DINSMORE: With all due respect, Mr Chairman, one of the
13 reasons I had the temerity to labour your patience was
14 to lay the groundwork for establishing from this officer
15 that, in order to put in the covert surveillance, it was
16 not necessary to arrest. Yes, it was necessary to have
17 them out of the house, but it was not necessary to
18 arrest.
19 I mean, the point is made and I am happy to leave it
20 at that, but what is quite clear --
21 THE CHAIRMAN: I am wondering just where this comes in our
22 terms of reference.
23 MS DINSMORE: Well, perhaps it will come when one considers
24 the treatment that my client has received generally in
25 this -- in the whole police investigation. Certainly
152
1 the approach --
2 THE CHAIRMAN: I will wait and see.
3 MS DINSMORE: -- to Mr and Mrs Atkinson is certainly
4 absolutely core to your terms of reference, because the
5 investigation, the very root and ethos of the
6 investigation is the attitude and approach taken to my
7 clients and each of them.
8 So if I can move on then --
9 THE CHAIRMAN: I hear you.
10 MS DINSMORE: I am obliged.
11 If we can just move on then, so what the Inquiry
12 know now is, yes, you wanted to put in covert
13 surveillance, not at a time of your choosing -- we agree
14 to that. You have also agreed it could have been done
15 at a different time, which you would wanted to have
16 done. You are not naming the time, but you could have
17 found a way. Isn't that right?
18 A. We would have hoped so, yes.
19 Q. You chose to do it when you were arresting them. On
20 that morning, as a result of the actions taken, there
21 was a lot of attention round the street where they
22 lived. Isn't that right?
23 A. I don't know who was paying attention.
24 Q. In an ordinary street in Portadown, a number of police
25 vehicles with a number of policemen, would your
153
1 experience, as a very senior policeman, lead you to
2 think people might tweak the curtains and think, "What's
3 going on"?
4 A. Yes, I am sure there were some people saw --
5 Q. So we have established that.
6 Then we move on to they are arrested in public. Am
7 I right in thinking also that indeed there was very
8 substantial media attention to those arrests?
9 A. I don't recall any substantial media attention.
10 Q. You don't recall the Police Ombudswoman talking about
11 four persons have been arrested?
12 A. I am sure it was reported that arrests were made, but
13 I wouldn't have classified that as substantial.
14 Q. So are you saying you carry out this big whole exercise
15 and your press team don't inform you what the Irish News
16 said about it, what the Newsletter said about it, what
17 the Belfast Telegraph said about it, what Newsline said
18 about it, what UTV said about it? You don't remember
19 anything about any of that?
20 A. Well, specifically, no. I am quite sure that a report
21 was carried that arrests had been made in the Portadown
22 area in relation to the murder of Robert Hamill. What
23 I can't imagine is that there was a hue and cry made
24 about who was arrested or the identification of them or
25 anything like that. I don't think that would have
154
1 happened.
2 Q. Well, perhaps that's a matter which cannot trouble you
3 so much as trouble the researchers who deal with the
4 material that will come before the Inquiry. I don't
5 expect you to do a press audit. Thank you very much,
6 Mr Stewart.
7 A. You are welcome.
8 THE CHAIRMAN: Yes, Mr Emmerson?
9 Questions from MR EMMERSON
10 MR EMMERSON: Mr Stewart, my name is Emmerson and I want to
11 ask you some questions on behalf of the Public
12 Prosecution Service.
13 Can I ask, please, that you be shown [81898] in your
14 statement, please, paragraph 17? You say here,
15 Mr Stewart, that a meeting took place on 28th February
16 2001, attended by yourself and DCI K and
17 Mr Raymond Kitson of the office of the DPP.
18 A. Yes.
19 Q. You indicate that you were seeking Mr Kitson's views on
20 the legality, and, if I can paraphrase it, of the steps
21 you were proposing to take in respect of the
22 investigation into the McKees, the Atkinsons and
23 Mr Hanvey. Is that right?
24 A. I think it was primarily in relation to Andrea McKee --
25 Q. Very well.
155
1 A. -- and her potential suitability as a witness.
2 Q. Very well. I mean, this was obviously a meeting that
3 was relatively soon after you took over responsibility
4 for the investigation?
5 A. Yes, it was, yes.
6 Q. Would it have been your first meeting with Mr Kitson
7 after taking over this investigation?
8 A. I think it was.
9 Q. You say in the last sentence of that paragraph:
10 "It was agreed that Andrea McKee would be dealt with
11 for her criminality, and her potential as a witness
12 would be considered after she had purged her criminal
13 behaviour."
14 Do you see that?
15 A. Yes, I do.
16 Q. I mean, does it follow from that that at that meeting at
17 least it was clear that Andrea McKee would, in fact, be
18 prosecuted? There was no suggestion, for example, that
19 she should simply be treated as a witness?
20 A. None whatsoever.
21 Q. Was that a view that you would have propounded at that
22 stage?
23 A. Yes, it was.
24 Q. The view that they should be prosecuted?
25 A. Yes.
156
1 Q. Can I ask that we look, please, at [74152], which is
2 a HOLMES entry in respect of that meeting? If we look
3 to the very top of it, it's a minute taken by DCI K.
4 You are recorded as being present, as is he, Mr Kitson,
5 Mr Mahaffey and another representative from PONI. Do
6 you see that?
7 A. Yes, I do.
8 Q. Just dealing very briefly with the opening passages, you
9 begin, it says, by outlining your reasons for calling
10 the meeting. If we could just turn over to the
11 following page, [74153], and if we take it from just
12 above halfway down:
13 "DCS Stewart", having summarised the evidential
14 background, "pointed out that this evidential assessment
15 will assist him to consider the strength of the case
16 against each of the suspects at this time and to make
17 further decisions as to what way the investigation
18 should now proceed from this point in order that
19 a sustainable case can be presented in any subsequent
20 court proceedings."
21 Then this:
22 "Mr Kitson pointed out that, at this stage, this
23 case was still in the hands of police and he would
24 therefore not be in a position to give any definitive
25 directions in this case until the investigative file had
157
1 been formally submitted to the DPP."
2 Was that your understanding of the position of
3 Mr Kitson?
4 A. Yes.
5 Q. "He also pointed out that operational decisions were
6 a matter for the police at this stage of the
7 investigation. Mr Kitson said that he would, where possible,
8 provide guidance on any legal issues arising from the
9 evidence which is present in this case. The discussion
10 proceeded on this basis."
11 Again, as far as you were concerned, was that
12 a normal reflection of how you would have expected the
13 interface to take place?
14 A. That was normal procedure with the Director of Public
15 Prosecutions.
16 Q. If we can then turn, please, to [74156], this is the
17 passage that deals with the issue that we just looked at
18 in your witness statement: namely, whether Andrea McKee
19 was, in fact, to be prosecuted rather than simply
20 treated as a witness.
21 If you look at the second full paragraph, just about
22 four lines down the minute records:
23 "In order to strengthen the credibility of her
24 evidence before a court, it was agreed that Andrea McKee
25 should be dealt with for her part in the conspiracy.
158
1 Prosecution and immunity options were discussed.
2 Mr Kitson pointed out any decisions about Andrea McKee's
3 status and how she should be treated were a matter for
4 the police at this stage."
5 Again, was that your understanding, that the
6 decision was one for you to make, as to whether she was
7 to be prosecuted or treated as a witness?
8 A. Yes.
9 Q. If we can then look at the following paragraph, four
10 lines down:
11 "Having examined and considered these issues,
12 DCS Stewart said that he would then make decisions about
13 how Andrea McKee should be dealt with."
14 A. Uh-huh.
15 Q. So you were at that stage acknowledging your
16 responsibility to make that decision. Is that right?
17 A. Well, I didn't make the note, but I'm sure it's
18 an accurate reflection of what we said at the time, yes.
19 Q. Certainly your understanding was it was a police matter?
20 A. Yes.
21 Q. Can I ask you then, please, just to turn to -- give me
22 one second -- paragraph 25 of your witness statement,
23 [81899]?
24 There is a reference there to the discussion that
25 took place between yourself and the office of the DPP
159
1 concerning the issue of whether Andrea McKee should be
2 sentenced before or after she was called to give
3 evidence in the Atkinson prosecution. You have made
4 reference in the second part of the paragraph to
5 a letter that you wrote on 11th February making
6 representations on that question.
7 A. Yes.
8 Q. Can I ask that we please look at [22875]? This is
9 a minute of the meeting of 31st January. The final
10 paragraph. First of all, if you just familiarise
11 yourself with the structure of the minute. It is
12 obviously a DPP file note of the meeting on 31st January
13 with Carl Simpson, Queen's Counsel, yourself, DCI K,
14 DSH, Mr Matthews and Mr Kitson.
15 If we look to the very bottom paragraph:
16 "In regard to Mrs McKee, senior counsel indicated
17 that his view was that Mrs McKee would proceed to be
18 sentenced by the trial judge. He did not consider it
19 either appropriate, or indeed normal, in this
20 jurisdiction for a defendant to plead guilty and then
21 have sentence deferred on the basis that he or she would
22 be giving evidence for the prosecution in any future
23 case against co-defendants. Senior counsel indicated
24 that that had been made invarious practice in this
25 jurisdiction and that there was case law to this
160
1 effect."
2 Do you remember that discussion?
3 A. Yes, I do.
4 THE CHAIRMAN: I suppose "invarious" should be "invariable".
5 MR EMMERSON: I think that's probably right.
6 You subsequently made representations in writing
7 that that practice should be varied on the facts of this
8 case in the letter you have referred to of
9 11th February. Correct?
10 A. Sorry. Would you say that again?
11 Q. You subsequently made a representation to the office of
12 the Director of Public Prosecutions on 11th February in
13 the letter that you wrote that, on the facts of this
14 case, a different practice ought to be followed?
15 A. Uh-huh.
16 Q. But your decision was that the decision that was taken
17 was to adhere to the advice of senior counsel?
18 A. Yes, it was.
19 MR EMMERSON: Thank you.
20 Questions from MR DALY
21 MR DALY: Mr Stewart, I appear for Andrea McKee.
22 It is fair to say then, Mr Stewart, that there was
23 no sentence deferral?
24 A. There was not.
25 Q. There was no immunity from prosecution?
161
1 A. No.
2 Q. Would it be fair to say in general terms that you would
3 have held a cynical view in relation to defendants who
4 were not going to have their sentence deferred in terms
5 of their potential assistance?
6 A. Could you clarify that statement, please?
7 Q. Would it be fair to say it was your view that deferral
8 of sentence would provide a motive or inducement to
9 a defendant to assist police?
10 A. As I calculated in my report, I felt that there was
11 a possibility that, once the court hearing was finished
12 with, Andrea McKee might have decided at that stage
13 simply to walk away, and we would have, if you like, no
14 claim over her.
15 Q. Would that have been your experience in a number of
16 cases that that would have happened?
17 A. It wasn't unusual for that to happen.
18 Q. It wasn't unusual. But in this case, in fact, Mrs McKee
19 remained in contact with police and insisted on her
20 collaboration, if you like, and her involvement
21 continuing with police. Isn't that right?
22 A. Yes, that is correct.
23 Q. She proceeded through the following several months after
24 her sentence to cooperate and to, in fact, attend
25 Craigavon's Magistrates' Court for the committal
162
1 proceedings in October. Isn't that right?
2 A. Yes, she did.
3 Q. So this was one of those exceptions, Mr Stewart?
4 A. Yes. Andrea McKee had indicated a willingness to
5 cooperate and by and large she did that.
6 Q. To be quite clear about it, there was nothing in it for
7 her by this stage to portray this cooperation?
8 A. Oh, nothing whatsoever.
9 Q. In fact, previously you had written two letters
10 commending Andrea McKee's cooperation, assistance and
11 helpfulness, one to her solicitor and one to the court.
12 Isn't that right?
13 A. Well, both actually were for her solicitor. I was just
14 asked to frame a letter for the presiding judge, but
15 that, I think, if my memory is right, went to Mrs Jagger
16 as well.
17 Q. If you like, you had no hesitation in extolling her
18 virtues in that regard?
19 A. I had no difficulty in setting out the facts as
20 I understood them.
21 MR DALY: Thank you.
22 THE CHAIRMAN: We have not actually seen that letter.
23 I wonder if we should.
24 MR UNDERWOOD: It is certainly referred to in the statement.
25 I will flick it up in a moment.
163
1 Questions from MR ADAIR
2 MR ADAIR: I think it is page [14463] --
3 THE CHAIRMAN: Thank you very much.
4 MR ADAIR: -- if that's the right letter.
5 THE CHAIRMAN: While it is coming up, would the Director of
6 Public Prosecutions Department be provided with a copy
7 of that letter?
8 A. I don't believe they were, sir.
9 THE CHAIRMAN: I am wondering if that letter ought to be
10 read out so as to appear on the website.
11 MR ADAIR: That seems perfectly appropriate, sir.
12 THE CHAIRMAN: Yes.
13 MR ADAIR: Do you wish me to read it out?
14 THE CHAIRMAN: If you will, please.
15 MR ADAIR: Would you mind enlarging it, please?
16 "I am happy to put on record that without the
17 assistance of Andrea McKee it is highly probable that
18 the police investigation into the death of Robert Hamill
19 and the subsequent follow-up investigation into the
20 conspiracy by police officers and others to pervert the
21 course of justice in respect of the Hamill Inquiry would
22 not have made the progress that it has.
23 "Mrs McKee first came to the notice of the police
24 investigating the death of Robert Hamill when she, of
25 her own accord, put police in touch with a vital
164
1 witness. Indeed, having informed police of the
2 existence of this witness, she then accompanied that
3 witness to Portadown RUC station for formal interview.
4 "This public-spirited assistance took a somewhat
5 backward step when Mrs McKee became involved in the
6 aforementioned conspiracy, together with her then
7 husband, Michael McKee. I am satisfied that this
8 backward step was taken out of a misguided loyalty to
9 her husband, which was to change when she and her
10 husband split up and she left the Portadown area.
11 "In June 2000, following this split-up, police
12 contacted Andrea McKee and during the course of
13 interview she readily admitted that she had lied in
14 support of her husband and went on to give a detailed
15 description of how she and others, whom she identified,
16 had conspired together.
17 "Following on from this information, detectives were
18 able to mount a thorough investigation into those
19 mentioned by Mrs McKee, which in turn led to a number of
20 arrests and seven persons being reported to the DPP for
21 prosecution.
22 "I can confirm that Andrea McKee has been made aware
23 that she faces prosecution for a serious offence, and
24 that she has indicated her willingness to assist the
25 prosecution of others by turning Queen's evidence."
165
1 If we just go to the bottom of the page, that's,
2 "Yours sincerely" and that's penned by C Stewart,
3 D/C/Superintendent. It is dated 3rd January 2002.
4 THE CHAIRMAN: Thank you. I think it should be made clear
5 for the public's interest that the writing of such
6 letters is a perfectly proper and legitimate practice in
7 appropriate cases and one sanctioned by the judiciary.
8 MR ADAIR: Yes, indeed, sir.
9 Now, if I may ask just some questions of this
10 witness, or would you like to take a break now, sir?
11 THE CHAIRMAN: We have been going for an hour and a half.
12 We had better have a short break. Ten minutes.
13 (3.25 pm)
14 (A short break)
15 (3.35 pm)
16 THE CHAIRMAN: Yes, Mr Adair?
17 MR ADAIR: Now, Mr Stewart, I have just a few matters I want
18 to ask you briefly about in relation to a number of
19 topics.
20 Just dealing with the last topic that we were
21 touching upon that you were being asked about, the
22 covert surveillance of the various households, can you
23 tell the Panel how strongly you and K made it clear to
24 Mr Wood and Mr Mahaffey that their proposed course of
25 action would not work?
166
1 I mean, can you give us an impression as to how
2 strongly you emphasised that to them? Was it fairly
3 strongly, very strongly? What is the position?
4 A. It was very strong. I mean, they were left in no doubt
5 that we didn't believe it would work. We didn't believe
6 it would work because the length of time it does to
7 effect an arrest and the length of time it does to
8 actually insert some devices can be considerably
9 different. So we assumed that Atkinson especially would
10 suspect something like this was going off. We felt from
11 the word go it wasn't going to work and we were proved
12 right at the end of the day.
13 Q. Was it Mr Wood and Mr Mahaffey then who insisted the
14 operation be carried out in terms of arrest and then the
15 surveillance being put in post-arrest?
16 A. Being fair to Mr Mahaffey, I think the decision was more
17 that of Mr Wood. He insisted, and, of course,
18 Mr Mahaffey agreed with him, but I think it was more on
19 the insistence of Mr Wood.
20 Q. I am not going to go through the various reasonings you
21 had in relation to that. It has been read out in
22 a document where you pointed out to Mr Wood the
23 problems.
24 Just in practical terms, what did this involve the
25 police doing at the house post-arrest? How many police
167
1 would be there? How many Land Rovers would be there?
2 How long would they be there for?
3 A. Well, I don't recall the exact numbers, but certainly
4 you had to keep police officers at the scene to protect
5 the officer who was inside making the insertion and the
6 length of time depends on just how quickly that officer
7 can find somewhere to conceal the device and then do the
8 necessary checks to make sure that the device is working
9 properly. So that could be half an hour. It could be
10 sometimes much longer than that.
11 Q. How long did you think it would be before Mr Atkinson
12 would realise or suspect that there was a device in his
13 house, if it was done the way Mr Wood wanted it done?
14 A. I thought he would suspect from the word go.
15 Q. Let's not mince words. Would it be fair to say -- you
16 are my witness. Is it going too far to say that, in
17 your opinion, their insistence on pursuing this course
18 of action blew any potential evidence that you might
19 have got to convict Atkinson? Is that going too far?
20 A. No, I don't think it is. I felt, if you like, unduly
21 coerced at the time. I was not happy about doing it
22 this way. I made that well-known. I had my strong
23 reservations about it and I take no satisfaction now,
24 you know, from having to say I was proved right.
25 I think, had we gone about it the way I wanted to do
168
1 it, it would have been in slower time but I think the
2 product would have been much more productive.
3 Q. When you say it would have been a slower time -- and I
4 am just going to leave it at that -- what was one of the
5 possible options as to when to insert the covert
6 surveillance?
7 A. Well, obviously you need a suitable opportunity and as
8 we approached -- one of our considerations was, as we
9 approached holiday seasons, people vacate their homes
10 for a week, a fortnight, during the holiday season. So
11 we felt we had been ideal opportunity then to do what we
12 needed to do and be prepared for those people returning
13 from their holiday period.
14 THE CHAIRMAN: In the event, Mr Atkinson's discovery
15 frustrated the whole exercise?
16 A. It did, sir, yes.
17 MR ADAIR: And, of course, the others discovered theirs, if
18 not at exactly the same time, virtually at the same time
19 as well?
20 A. Within a matter of hours.
21 Q. At the risk of the wrath of the entire Panel, Mr Wood
22 and Mr Mahaffey, are they local or from England?
23 SIR JOHN EVANS: I have heard counsel doesn't ask questions
24 unless he knows the answer.
25 A. They are not local.
169
1 THE CHAIRMAN: A very tactful answer.
2 MR ADAIR: Now, you are aware, Mr Stewart, and you have seen
3 a memo that Mr Wood drafted which -- I am not sure
4 whether or not it is going to be dealt with in evidence,
5 but you have seen a memo that he drafted commenting on
6 a number of things, what he was calling the inexcusable
7 delay in getting the surveillance equipment in,
8 essentially accusing you and K of unprofessionalism.
9 You have seen that memo?
10 A. Yes, I have, yes.
11 Q. Just for the record, sir, it starts at page [75206].
12 THE CHAIRMAN: It starts on that page and goes on. It is
13 quite a long letter.
14 MR ADAIR: It does, yes. If we look, for example, if we
15 could put up [75209], you will see "Concerns" and if you
16 would highlight "Concerns", please:
17 "There is a lack of appetite to tackle R/C Atkinson
18 in a proactive way for all the reasons stated."
19 Was there any truth in that?
20 A. None whatsoever. That's nonsense.
21 Q. "RUC investigators have frequently used the term
22 'a sledgehammer to crack a nut' with regard to the
23 proposed strategy. This either is indicative of
24 an attitude or demonstrates a complete lack of awareness
25 of the strategic importance of the investigation."
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1 Did you ever use that expression, first of all?
2 A. No, sir. That's not a term that I use.
3 Q. Did K, in your presence, ever use that expression?
4 A. No.
5 Q. Do you know what he is referring to?
6 A. No, I don't.
7 Q. "There has been delay after delay and the deployment is
8 still some way off from professional deployment."
9 Go to the next page, please, [75210] and highlight
10 the top, please. Just dealing with the delay aspect,
11 would you like to comment about that?
12 A. Well, there was no delay. We were moving things along
13 as quickly as it was possible. Mr Wood had this
14 misconceived idea that everything could be done
15 overnight, but that was impossible. People had to be
16 interviewed. Things take time. I only came into the
17 investigation a week before Christmas and we were now
18 doing arrests in four months. That's the only -- in
19 an investigation like that, four months was
20 an inordinately short period of time. If I had been
21 left alone, we wouldn't have been doing arrests at that
22 stage. We would have been doing our covert surveillance
23 work.
24 Q. "The RUC have known for four plus months that the
25 directed and agreed strategy was to deploy technically
171
1 but do not have the kit. When challenged by the chief
2 constable, seemed to be able to buy it immediately."
3 Any comment about that?
4 A. I remember this coming out from the meeting we had at
5 headquarters. It transpired that those who were using
6 this particular equipment had a lot of work on. When
7 they looked at the amount they had at their disposal,
8 they discovered they were a couple of pieces short for
9 what we needed. This was explained to Mr Wood. He felt
10 that it was necessary to go to speak to the chief
11 constable about it. Mr Flanagan authorised the purchase
12 of two new pieces of equipment, but there was nothing
13 sloppy about it. There was a lot of surveillance work
14 being done at that time. The equipment was all in use.
15 It was as simple as that.
16 Q. "Real fear of compromise - they intend using 36 officers
17 from the local region as listeners when it is stated
18 that there is considerable sympathy within the ranks of
19 the RUC for Atkinson."
20 Would you like to comment about that?
21 A. We were not using local officers. We were using
22 officers from within the region, sir, and the region
23 started at Newtownards and travelled to Enniskillen. So
24 we had stretched out as far away from J Division as
25 possible and we selected officers who, as far as we
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1 could ascertain, had no contact with Atkinson or any of
2 the other suspects.
3 Q. So is this accurate, or nonsense, or somewhere in
4 between?
5 A. It is balderdash.
6 Q. "These failings are against a background of poor
7 performance and in a case of considerable public
8 importance, yet obfuscation abounds."
9 What do you say about that?
10 A. What I just said to your last comment. It is nonsense.
11 Q. "The delays and lack of professionalism have led us to
12 unintentionally provide misleading information to
13 Diane Hamill and her solicitor."
14 Now, do you have anything to say about that?
15 A. I think that Mr Wood -- well, I don't know. My
16 suspicion is that Mr Wood had given certain assurances
17 to Diane Hamill and her solicitor and it was on the back
18 of that that he was pushing so hard for things to be
19 done in his timescale irrespective of what the result
20 might have been. He had made commitments and he wanted
21 to make sure they were carried through.
22 Q. Now I want to turn to a separate topic altogether.
23 SIR JOHN EVANS: Mr Adair, forgive me, please. Before you
24 leave that point, may I?
25 MR ADAIR: Yes, please do.
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1 SIR JOHN EVANS: All of this memo -- can we go back and find
2 the date of this memorandum, please?
3 MR ADAIR: 14th March 2001.
4 SIR JOHN EVANS: Okay. The question I was going to ask is:
5 is it possible that some of that criticism was levied at
6 those who were responsible before you came, the senior
7 investigating officer --
8 A. Well --
9 SIR JOHN EVANS: -- or did you take it to be a criticism of
10 the current running of the investigation?
11 A. I do, sir, for the reason he refers to "they have had
12 four months" and that's roughly about the length of time
13 that I was then in post.
14 SIR JOHN EVANS: Fine. Thank you very much, Mr Adair.
15 MR ADAIR: I want to turn briefly to policy files. You have
16 told us that, as far as you are concerned, it was
17 standard procedure to have policy files either open or
18 secret. Now, we know that there weren't policy files in
19 this case kept by -- essentially there weren't policy
20 files kept by Mr McBurney in relation to the murder
21 investigation.
22 There does not seem to be, if I might say so,
23 much -- it seems hard to find a reason why there was not
24 a secret policy file kept at the risk of -- I appear for
25 Mr McBurney, but it seems hard to understand that. As
174
1 far as the ordinary policy file is concerned, that is
2 something that the office manager and others would have
3 access to. Is that right?
4 A. Yes, sir, it is.
5 Q. We have been listening to tapes yesterday where
6 Mr McBurney was explaining, just frankly, concerns he
7 had that information that he might put into the policy
8 book might be leaked intentionally or otherwise by
9 police officers which might prejudice the investigation.
10 That's what Mr McBurney has been saying.
11 Is that -- I know -- you, obviously, I think, are
12 the sort of person who keeps a note about most things,
13 but would that -- knowing McBurney as you did -- I will
14 come to that in a moment -- does that seem to you from
15 your knowledge of him to be a possible reasonable
16 explanation for it, knowing McBurney as you did?
17 A. I have no doubt that that was his reasoning. He wasn't
18 one to commit a lot to paper, unfortunately probably in
19 this case, and I think, you know, with hindsight
20 probably he would today if he was here, say, "I should
21 have kept a secret policy file that everybody wouldn't
22 have had access to", except him and his deputy, and he
23 could have put, if you like, the run of the mill stuff
24 in the general policy file and it wouldn't have mattered
25 really who had access to it or may have said something
175
1 in relation to it out of school.
2 Q. Well, I think he said in his interviews that he didn't
3 keep that because he would be sitting writing all day
4 apparently, like the 61% of the time that the police do
5 now, but a secret policy file would be secret?
6 A. Yes. It would be something that you normally would keep
7 with your deputy.
8 Q. Can I ask you this, just to lay the groundwork for the
9 question, first of all? You knew Mr McBurney?
10 A. I did, yes.
11 Q. Did you get on with him?
12 A. Not especially, no.
13 Q. Was he a friend?
14 A. No.
15 Q. If you asked him what day it was, what would his reply
16 be?
17 A. He would probably want to know why you wanted to know
18 what the day was.
19 Q. Can you help the Panel with this? One of the
20 possibilities as to why, for example, Atkinson was not
21 served with the 17(3) either fairly soon after 10th May
22 or between then and September, is the fear of
23 prejudicing the murder case, to summarise it.
24 If Mr McBurney had come to that conclusion, do you
25 think he would have either written that down or told
176
1 anybody?
2 A. I don't think he would have written it down. I suspect
3 he may have referred up to the ACC about it and he
4 certainly would have talked about things, but the
5 likelihood of him having put it to paper, I would have
6 thought would be very, very slim.
7 Q. Would it be a possibility or not that whatever his
8 tactics were in respect of that, he would keep it to
9 himself?
10 A. Yes. There were certain things that Maynard would not
11 have shared with anybody. If he felt comfortable, he
12 would then have shared it with his deputy, but that
13 would have probably been about the height of it.
14 Q. Now, you thoroughly, as I understand it, investigated
15 the allegations concerning the tip-off. Is that right?
16 A. Yes.
17 Q. Your team uncovered, as we all know, various matters
18 that had not been uncovered or investigated by the
19 original investigating team?
20 A. Yes.
21 Q. One of them was referred to this morning, for example,
22 the ATM evidence, which is perhaps, I think,
23 understandable, because of the difference in the money
24 laundering legislation that came in and so on, but there
25 were other things, such as the taxi that had been got
177
1 and so on, that you uncovered that the McBurney
2 investigation didn't. Isn't that right?
3 A. Well, that's how it seems, but because we have no
4 written evidence about it, I am not 100% sure that
5 McBurney didn't make an enquiry himself or send somebody
6 else to make an enquiry and the knowledge is in his head
7 only, or was.
8 Q. Well, I don't think we have in the -- we have certainly
9 nothing in writing to show that he uncovered some of the
10 matters you uncovered.
11 A. That's right.
12 Q. You are aware of that?
13 A. Yes, I am.
14 Q. Having been involved in very considerable detail in this
15 investigation, being aware of everything Mr McBurney
16 did, did you find anything that suggested that
17 Mr McBurney was other than enthusiastic in pursuing
18 Atkinson?
19 A. No, nothing.
20 Q. You did, however, carry out steps that he hadn't. There
21 is no gainsaying that.
22 A. Yes, that's true.
23 Q. Knowing McBurney as you did, because, unfortunately, as
24 we all know, he is deceased and the Panel will not be
25 able to see him, so it is important we get some flavour
178
1 about the man, what would have been his attitude towards
2 getting a bad policeman?
3 A. Oh, he would have been absolutely determined to bring
4 that person to justice, totally determined. He would
5 have viewed such a person with absolute disdain.
6 MR ADAIR: Yes. Thank you.
7 SIR JOHN EVANS: Mr Underwood, before you do, may I just
8 check? It goes back to a point Mr Emmerson was making
9 earlier. I hope I have not missed the point,
10 Mr Emmerson, and you will correct me if I am inaccurate
11 on that.
12 As I understood the position, Mr Stewart, you were
13 being asked about that meeting you had in the Director's
14 office, and I think I heard you agree about the
15 operational decisions being a matter for the police, and
16 I saw on the screen that the DPP doesn't take full
17 responsibility until he receives the prosecution file.
18 I understand that. I do understand, of course, that
19 Mr Kitson did comment that he would give advice and
20 guidance, but we are talking about here whether or not
21 you use a person as a witness or prosecute them. Yes?
22 A. Yes, sir.
23 SIR JOHN EVANS: I think I am right in saying that it would
24 be a police decision in the initial stages as to which
25 way they would prefer to go, but if you decide not to
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1 prosecute a person, is that the police decision?
2 A. No. Ultimately, that would rest with the DPP.
3 SIR JOHN EVANS: So immunity from prosecution would
4 automatically have to go to the director --
5 A. Yes.
6 SIR JOHN EVANS: -- and on to the AG for approval?
7 A. Yes.
8 SIR JOHN EVANS: Thank you.
9 Mr Emmerson?
10 MR EMMERSON: Absolutely clear. The point of distinction
11 is, as is apparent from the minutes, the submission of
12 the police file. Mr Kitson's position throughout was
13 that prior to the submission of the police file, it was
14 not possible for the DPP to make decisions in advance
15 whilst the matter was in the hands of the police.
16 SIR JOHN EVANS: Well, I am not sure about that, because
17 there were conferences taking place, weren't there?
18 MR EMMERSON: Yes, there were, but, as you will see, I think
19 from this and other minutes that was the position that
20 Mr Kitson took.
21 SIR JOHN EVANS: Thank you.
22 THE CHAIRMAN: Can you just help me? The sensitive policy
23 book, in what sort of security is that kept?
24 A. That would normally be retained by the SIO or his
25 deputy, sir.
180
1 THE CHAIRMAN: Where would they keep it?
2 A. Well, probably in a filing cabinet locked away in their
3 own office.
4 THE CHAIRMAN: Would it be left there overnight or would
5 they take it home with them?
6 A. I suspect it would be left there overnight, sir.
7 THE CHAIRMAN: What about the filing cabinets? How secure
8 are they?
9 A. Well, the filing cabinet would be locked inside a locked
10 room. So unless someone was going to physically break
11 down a door and then prise open a filing cabinet, it
12 would have been quite safe.
13 THE CHAIRMAN: The impression perhaps comes over from the
14 tape record of the interview with him that he was
15 perhaps something of a prima donna. Would that be fair
16 or unfair, do you think?
17 A. Who are we speaking of, sir?
18 THE CHAIRMAN: Mr McBurney?
19 A. A prima donna?
20 THE CHAIRMAN: Uh-huh.
21 A. I wouldn't have used those terms, sir, no, no.
22 THE CHAIRMAN: Sceptical about new ideas as far as paperwork
23 was concerned?
24 A. I think he was an officer who liked to be out on the
25 street, on the ground, interviewing, getting the best
181
1 out of those working to him and he would have probably
2 seen paperwork as an impingement on his time as opposed
3 to anything else. He wouldn't be one of the 61% that
4 has been referred to here today, sir.
5 THE CHAIRMAN: Thank you.
6 Yes, Mr Underwood?
7 Further questions from MR UNDERWOOD
8 MR UNDERWOOD: Maybe these statements are obvious, but let's
9 just get clear on Andrea McKee's position.
10 By the time you had gone on board this
11 investigation, Andrea McKee had been seen in Wrexham by
12 Detective Chief Superintendent McBurney and Mr Irwin,
13 I think in June 2000, and at that point was interviewed
14 without caution, but had admitted a criminal offence.
15 That was your understanding. Is that right?
16 A. Uh-huh.
17 Q. We know that Mr McBurney then pretty well immediately
18 took that to Mr Kitson. Did you understand that as
19 well?
20 A. I don't recall that, but I accept what you are saying.
21 Q. Right. I think she may have been interviewed again
22 after that, again without caution, by DCI K.
23 A. Yes. When he took over the investigation, I think.
24 Q. So the position was that she had been interviewed twice
25 over the course of six months or so about an admitted
182
1 offence but without being cautioned, and you have told
2 us that you had no hesitation in treating her as
3 somebody who was to be prosecuted rather than to be used
4 as a witness first.
5 That being so, why wasn't she cautioned, in your
6 view?
7 A. I have thought about that, and I am sorry, I don't have
8 an answer for you. I just don't know.
9 Q. Right. Presumably you took the view that if you were to
10 use her statement against her, you first had to get it
11 under caution. Would that be fair?
12 A. Of course.
13 Q. That was the object of the exercise on 10th April 2001
14 then, was it?
15 A. Yes, it was.
16 Q. Did you perceive that there was any doubt in her mind
17 that she was voluntarily putting her head in the noose,
18 as it were, by making that statement under caution on
19 10th April 2001?
20 A. Sorry. Would you say that again?
21 Q. Yes. She has been interviewed twice. She has made
22 a confession not under caution. She has repeated it,
23 again not under caution, and you are then pitching up to
24 interview her under caution for the express purpose of
25 getting her to convict herself.
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1 In your view, was she left in any doubt that that's
2 what was going on in April 2001?
3 A. None whatsoever. She knew exactly where we were coming
4 from and what was intended.
5 Q. Have you any doubts about her confessions?
6 A. I never interviewed her personally, but certainly those
7 that did, and I am thinking especially of DCI K now,
8 I think he was impressed by her admission, in the sense
9 that he thought she was telling the truth.
10 Q. You were in the force 32 years, I think.
11 A. Yes, I was.
12 Q. How common was it for to you get a couple of confessions
13 not under caution and then pitch up and say, "Well, can
14 you please repeat that under caution so we can prosecute
15 you?"
16 A. Relying on a bad memory, I don't recall it happening
17 before.
18 Q. Quite a cooperative defendant then?
19 A. She was, yes.
20 MR UNDERWOOD: Thank you very much.
21 THE CHAIRMAN: Thank you.
22 MR UNDERWOOD: Thank you for coming.
23 A. Thank you.
24 (The witness withdrew)
25 MR UNDERWOOD: I gather we can get Mr McBurney's audio back
184
1 up within about a minute.
2 THE CHAIRMAN: Good.
3 (Recorded interview of Mr McBurney continued to be played)
4 THE CHAIRMAN: Is that a convenient point to break off, the
5 top of page 126?
6 MR UNDERWOOD: Yes.
7 THE CHAIRMAN: Tomorrow, have we just the one witness?
8 MR UNDERWOOD: We have two. Mr Wood, of whom there has been
9 discussion this afternoon, and DC Murphy. I don't
10 anticipate they will be very long. I suspect an hour
11 and a half or so between the two.
12 THE CHAIRMAN: Then we will finish the McBurney tapes?
13 MR UNDERWOOD: We can certainly do our best to finish the
14 McBurney tapes.
15 THE CHAIRMAN: How much longer do we have of that?
16 MR UNDERWOOD: I think we probably still have three or four
17 hours, I regret to say. I hope they are of value,
18 though.
19 THE CHAIRMAN: Yes, they are. Are we fairly well up to
20 schedule then?
21 MR UNDERWOOD: We very well on schedule. We have fitted in
22 all the witnesses we were supposed to fit in as well as
23 a lot of the McBurney tapes. So one could say we are
24 ahead a bit.
25 THE CHAIRMAN: Good. Then 10 o'clock tomorrow morning.
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1 (5.15 pm)
2 (The hearing adjourned until 10.00 tomorrow morning)
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MR GERALD ERIC JOHN SIMPSON (sworn) .............. 18
4 Questions from MR UNDERWOOD ............... 18
Questions from MR McGRORY ................. 41
5 Questions from MR MALLON .................. 43
Questions from MR EMMERSON ................ 45
6 Questions from MR DALY .................... 60
7 R U L I N G ...................................... 73
8 MR JOHN DEVLIN (sworn) ........................... 73
Questions by MR UNDERWOOD ................. 73
9 Questions from MR McGRORY ................. 81
Questions from MS DINSMORE ................ 82
10 Questions from MR DALY .................... 83
11 MR ANTHONY BYRNE (sworn) ......................... 84
Questions from MR UNDERWOOD ............... 84
12 Questions from MR O'HARE .................. 88
Questions from MR McCOMB .................. 92
13 Questions from MR McKILLOP ................ 96
14 WITNESS P132 (sworn) ............................. 102
Questions from MR UNDERWOOD ............... 102
15 Questions from MR O'HARE .................. 108
Questions from MR McKILLOP ............... 110
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WITNESS P133 (sworn) ............................. 114
17 Questions from MR UNDERWOOD ............... 114
Questions from MR McCOMB .................. 122
18 Questions from MR McKILLOP ................ 125
19 MR COLVILLE STEWART (sworn) ...................... 127
Questions from MR UNDERWOOD ............... 127
20 Questions from MR McGRORY ................. 136
Questions from MS DINSMORE ................ 142
21 Questions from MR EMMERSON ................ 155
Questions from MR DALY .................... 161
22 Questions from MR ADAIR ................... 164
Further questions from MR UNDERWOOD ....... 182
23
(Recorded interview of Mr McBurney ............... 185
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